author: ONION, Judge.

text:
    Ex parte Junior Releford ENGLE.
    No. 40551.
    Court of Criminal Appeals of Texas.
    July 12, 1967.
    Rehearing Denied Oct. 11, 1967.

      R. Landon Winstead, Jr., Wichita Falls (by appointment), for appellant.
    Stanley C. Kirk, Dist. Atty., Wichita Falls, Monroe Clayton, Asst. Atty. Gen., Austin, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

Relator made an application for writ of habeas corpus under the provisions of Article 11.07, Vernon’s Ann.C.C.P. to the 89th District Court, Wichita County, Texas. After a hearing, Judge Floyd Jones granted the issuance of the writ and made it returnable to this Court. In connection with such order, Judge Jones also filed his findings of fact and conclusions of law.

The record reflects that relator was indicted in January, 1962, by the Wichita County grand jury for the offense of Burglary with Intent to Commit Theft with four (4) previous convictions for felonies less than capital alleged for the purpose of enhancement under the provisions of Article 63, V.A.P.C. After trial on May 28 and 29, 1962, the relator was convicted of the Burglary alleged and was assessed a life sentence as a habitual criminal. Sentence was pronounced on June 7, 1962, from which no appeal was taken.

In his collateral attack upon this conviction, relator now urges that his court appointed counsel at the trial had not been out of law school for a sufficient period of time to have been assigned such a serious case, and further that he and such attorney were denied the statutory ten (10) day period of preparation after counsel’s appointment. See Article 494, V.A.C.C.P., in effect at the .time of relator’s trial.

We shall discuss these two contentions together. The record reveals that Charles D. Butts, an attorney then practicing in Wichita County was appointed to represent relator. The date of such appointment is not clear from the record, but it does appear that he was relieved of such assignment on March 19, 1962, as a result of a political campaign in which he was engaged. On this same date, Ray Gene Smith was appointed to represent the relator. The record reflects that at the time Mr. Smith had graduated from law school in January, 1962, had taken the State Bar Examination, and was employed in a law office in the City of Wichita Falls, but had not yet been licensed to practice law by the Supreme Court of Texas. As Mr. Smith recalled at the habeas corpus hearing, he made known to the Court his status at the time of appointment and subsequently secured a postponement of the trial because of it. On May 7, 1962, some three (3) weeks prior to relator’s trial, Mr. Smith received his license to practice law and became a member of the State Bar in good standing.

There can be no question but the trial judge then presiding had no authority to appoint an unlicensed individual to represent relator. Article 320a-l, V.A.C.S. Neither is the practice of appointing newly licensed attorneys to defend habitual criminal cases without assistance of experienced counsel to be commended. We conclude, however, that while the appointment was legally ineffective on March 19, 1962, that it became effective on May 7, 1962, the date Mr. Smith received his license to practice. We do not understand that relator seriously urges that he was deprived of the effective assistance of counsel. The record supports a contrary conclusion. Judge Jones in his findings stated that relator’s “court appointed counsel vigorously, ably, and diligently represent” him. Without going into great detail, this finding is amply supported by the record attesting to the zeal, interest, and dedication of our younger lawyers to their assignments as counsel for the indigent criminal defendant.

The record does not show at the time of trial that appellant or his counsel moved for a continuance or requested any further time for preparation. Counsel’s appointment being effective from May. 7, 1962, there was no necessity to comply with the provisions of Article 494, V.A.C.C.P. (then in effect) before proceeding to trial.

Appellant next contends that his written confession was not voluntarily made because he was not given the warnings required by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Miranda, of course, has application to trials commencing after June 13, 1966, and has no application here. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed. 2d 882. Recognizing this possibility, relator’s able counsel contends that while Miranda may not be directly applicable it may be relevant on the issue of voluntariness, citing Clewis v. State of Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423.

The facts in Clewis and the case at bar are easily distinguishable and many of the factors which caused the United States Supreme Court to conclude Clewis’s third confession was not voluntary are not presented here. By his own admission, shortly after arrest, relator gave his only confession following interrogation of “approximately one hour”. He was warned, as he admits, that he did not have to make any statement at all and that any statement made could be used against him at his trial. After making the confession, he was .taken to the District Attorney’s office, and then before a magistrate before being transferred to the County jail.

No question is raised concerning the legality of his arrest prior to the confession. The record does not reflect that relator’s faculties were impaired by inadequate sleep and food, sickness or long subjection to police custody with little or no contact with anyone other than police.

Relator claims that he had been drinking prior to his arrest, but denied he was drunk at the time of confession. The officer’s testimony showed that he was sober at such time.

The relator does not claim that he was struck by the officer taking confession, but that such officer knocked a package of cigarettes out of his hands and “threatened” him and he observed the officer’s clenched fist. No claim of abuse appears to have been made to the person who witnessed the signing of the confession, the Assistant District Attorney, or the magistrate before whom he .was taken.

One officer testified it was the policy of Wichita Falls City Police to allow a suspect to call his attorney if he so requested, but that in 1961 they were not advising suspects as to their right of counsel as now required by the 1966 opinion of Miranda v. State of Arizona, supra.

We cannot conclude that Clewis, supra, would control as to this relator who was thirty-four years old at the time of the confession, who was able to read and write and had previously been convicted four times of felonies in as many states.

Relator further urges that his conviction must be set aside because his written confession was introduced at the trial and passed on as to voluntariness only by the jury in violation of the dictates of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, which must be applied retroactively. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.

The record establishes the fact that a separate hearing on the voluntariness of the confession was conducted by the Court in absence of the jury upon defense counsel’s objection to the introduction of the statement. After the admission of the confession, the question was presented to the jury, which, by its general verdict, resolved the question against relator.

While it does not appear that the trial judge entered a separate order as to his findings as recommended over two years later in Lopez v. State, Tex.Cr.App., 384 S.W.2d 345, and which is now required by Article 38.22, Section 3(b), V.A.C.C.P., Judge Jones concluded from the testimony presented at the habeas corpus hearing that the trial judge made an independent finding of voluntariness as required by Jackson v. Denno, supra. The record supports such conclusion. See also Sims v. State of Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 17 L.Ed.2d 593.

Even if this were not so, we observe that Jackson v. Denno, supra, did not require that the State must necessarily give Jackson a new trial, but held that a hearing in compliance with proper standards to determine if the confession admitted at his trial was in fact voluntary would suffice. At the habeas corpus hearing, the relator and other witnesses fully testified to the circumstances surrounding the taking of the confession, and thereafter Judge Jones concluded as a matter of law and fact that relator’s confession was freely and voluntarily made. The requirements of Jackson v. Denno, supra, have been met.

Relator further contends the indictment was amended after the trial commenced in violation of Article 533, V.A. C.C.P., in effect at the time of relator’s trial. The only evidence in support thereof is relator’s own testimony that “the state drew up two prior convictions, they didn’t call it indictment or anything * * * they wrote up two prior convictions on a single sheet of paper during recess of court and that is what was used to convict me of being a habitual criminal.”

It appears from the record that prior to the reading of the indictment to the jury, the State waived and abandoned the fifth paragraph of the indictment alleging a fourth prior conviction for enhancement. Although it appears that three prior convictions were proven, the District Attorney, in drafting the charge for the Court, submitted only two of such convictions to the jury.

The record does not support relator’s contention.

Lastly, relator complains that he was denied the right of appeal, the appointment of counsel on appeal and a record for appeal.

We note, at the outset, that this is not a death penalty from which counsel would be required to appeal. Ex parte Caldwell, Tex.Cr.App., 383 S.W.2d 587.

Relator testified he discussed the matter of appeal with his court appointed attorney, but that such counsel refused to appeal the case, and he “felt that was the end of it.” He could not recall whether at the time of sentencing the trial court said anything to him about his right of appeal.

The Court appointed counsel, Ray Gene Smith, testified he discussed the'matter of appeal with relator when the verdict was received, subsequently in jail, and in open court just prior to the sentencing; that he explained to relator what a motion for new trial was and what an appeal was; that relator clearly indicated that he did not wish his counsel to do anything; that he (counsel) stood ready to appeal the conviction if that had been the wish of relator.

It is clear that relator did not give notice of appeal as required by Article 827, V.A. C.C.P., in effect at the time of the sentence nor does the record show that relator manifested in any way to the trial court or any responsible official or representative of the State his desire to appeal, or that they knowing of his desire failed to aid him. See Pate v. Holman, 5 Cir., 341 F.2d 764, modified on re-hearing, 343 F.2d 546; Edge v. Wainwright, 5 Cir., 347 F.2d 190; United States ex rel. Bjornsen v. La Vallee, 2 Cir., 364 F.2d 489; Bashlor v. Wainwright, Fla., 189 So.2d 800. In Ex parte Wilson, Tex.Cr.App., 392 S.W.2d 134, this Court pointed out that we did not construe Pate v. Holman, supra, as holding that a court appointed attorney is such a responsible State official or representative there mentioned. No State action was shown which deprived relator of his Fourteenth Amendment rights.

We recognize that the appointment of counsel on appeal is not dependent upon a request therefor by an indigent defendant whose desire to appeal is manifest. Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996,18 L.Ed.2d 33. In the case at bar, there can be little question but what the trial court knew of relator’.s indigency, but relator’s claim of deprivation must necessarily rest upon the assertion that the State had an affirmative obligation to advise him of his right to appeal and of the procedure to enforce that right. While the evidence admitted at the habeas corpus hearing does not reflect whether such advice was afforded to relator by the trial court it undoubtedly would have been commendable. We do not, however, construe Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, or Swenson v. Bosler, supra, cited by relator, as requiring that such advice be furnished where no desire to appeal has been manifested, or as requiring the trial court to initiate an inquiry or extend an invitation to appeal.

We further observe, while not introduced into evidence, the trial court permitted to be attached to the record a memorandum opinion dated April 27, 1965, of the Honorable Ben Connally, United States District Court, Southern District of Texas, in which court relator by writ of habeas corpus sought to raise then this very same contention. There, the Court, after hearing the relator and other witnesses, wrote in part, as follows:

“In the instant case, the trial court took affirmative action by advising the petitioner of his rights to appeal at the time of sentencing. He cannot stand mute after being advised of his rights to appeal, and thereafter be heard to complain that the State denied him this right. Pate v. Holman, supra. ‘(H)abeas corpus has traditionally been regarded as governed by equitable principles. * * * Among them is the principle that a suitor’s conduct in relation to the matter at hand may disentitle him to the relief he seeks.’ Fay v. Noia, 372 U.S. 391, 438 [83 S.Ct. 822, 9 L.Ed.2d 837] (1963). The Court is of the view, and finds, that the entire question of taking an appeal is an afterthought on the part of petitioner, fabricated long after his arrival at the penitentiary as a habeas corpus, aid, and is completely false.”

We conclude that relator was not deprived of his right to appeal or to the appointment of appellate counsel. In view of our disposition of this portion of relator’s last contention, we need not discuss his entitlement to an appellate record.

The relief prayed for is denied.

      . Texas has no procedural rule requiring the trial court upon imposition of sentence to advise a defendant of his right of appeal and the procedure therefor, including the right of an indigent to appeal in forma pauperis. See Rule 32 (a) (2), Federal Rules of Criminal Procedure. In light, however, of recent United States Supreme Court opinions, i. e., Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33; Anders v. State of California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1396; Enstminger v. State of Iowa, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501, trial judges would be well advised to notify all defendants of their right to appeal and the procedure therefor, and have the record reflect such action, preferably in the sentence itself.


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    Otto Herman MEYERS, Appellant, v. The STATE of Texas, Appellee.
    No. 40469.
    Court of Criminal Appeals of Texas.
    July 12, 1967.
    Rehearing Denied Oct. 11, 1967.

      Phillip Bordages, Beaumont, for appellant.
    W. C. Lindsey, Dist. Atty., John R. De-Witt, Asst. Dist. Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is murder; the punishment, life.

Since this conviction must be reversed because of jury misconduct, a recitation of the facts will not be deemed necessary. At the hearing on Motion for New Trial, appellant called Juror Gillit, who testified in part as follows:

“Q. What was said, if anything, about the length of time that the man would have to serve ?
A. Well, there was a number of different sentences that was discussed if he was given such and such would he get this and so, and this went on through the line, but it was definitely stated that he would not have to serve more than eight years if he got a life sentence.”
“Q. And what statements did the juror make to you then?
A. Just that he knew definite, he did know that it would not be any longer than that.”

The State made no effort to refute such testimony.

Article 40.03(7), Vernon’s Ann.C.C.P. provides that a new trial shall be granted where the jury, having retired to deliberate on a felony case, has received other testimony.

The statement of a juror who claimed to know that the defendant would not have to serve more than eight years if given a life sentence, made while the jury was discussing the punishment they would assess, constituted “other testimony” and a misstatement of the law.

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


author: WOODLEY, Presiding Judge.

text:
    Doyle Howard ROBERTSON, Appellant, v. The STATE of Texas, Appellee.
    No. 40515.
    Court of Criminal Appeals of Texas.
    July 12, 1967.
    Rehearing Denied Oct. 11, 1967.
    Pat McDowell (on appeal only), Dallas, for appellant.
    Henry Wade, Dist. Atty., Ross Teter, Joe Hendley and Kerry P. FitzGerald, Asst. Dist. A ttys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is robbery; the punishment, enhanced under Article 62 P.C. by a prior conviction of a felony of like character less than capital, life.

The indictment alleged the robbery of Rudy Bouland on or about October 26, 1965.

Bouland, operator of a drive-in grocery in Mesquite, Dallas County, Texas, and his then employee Bush identified appellant as one of two men who entered the store on October 26, 1965, and robbed Bouland of $270.

Appellant’s contention that the evidence identifying him as one of the robbers is insufficient is without merit. Murry v. State, Tex.Cr.App., 413 S.W.2d 117.

Appellant’s remaining grounds for reversal relate to the sufficiency of the evidence and the admissibility of evidence offered at the hearing on the punishment issue.

He first contends that the evidence is insufficient to show that the prior conviction alleged for enhancement, in paragraph 2 of the indictment, was final before the commission of the robbery charged in the first paragraph of the indictment.

Certified copies of the judgment and sentence identified by a deputy district clerk and introduced in evidence reflect that the judgment was rendered and sentence was pronounced in the prior conviction on March 6, 1964, whereas the robbery charged was committed on October 26, 1965. This was sufficient proof that the prior conviction became final on March 6, 1964, prior to the robbery. Covarrubias v. State, 169 Tex.Cr.R. 288, 334 S.W.2d 187; Goodale v. State, 146 Tex.Cr.R. 568, 177 S.W.2d 211; Ex parte Hayden, Tex.Cr.App., 215 S.W.2d 620.

Appellant’s contention that the records from the Texas Department of Corrections and the court records were hearsay and inadmissible is overruled. Gibbs v. State, 169 Tex.Cr.R. 608, 336 S.W.2d 625; Davis v. State, 167 Tex.Cr.R. 524, 321 S.W.2d 873; Tomlin v. State, 170 Tex.Cr.R. 108, 338 S.W.2d 735, 737; Todd v. State, 170 Tex.Cr.R. 552, 342 S.W.2d 575; Welch v. State, 170 Tex.Cr.R. 425, 341 S.W.2d 909.

Certified copy of the indictment in the burglary conviction alleged for enhancement furnished the necessary proof that the prior conviction was for an offense of like character as robbery; namely, burglary with intent to commit theft.

Appellant was identified as the defendant in the prior conviction by testimony of an expert in such matters who took fingerprints of appellant and compared them with fingerprints in the prior conviction which, together with certified copies of the judgment and sentence, formed a part of the records of the Texas Department of Corrections.

No error appearing, the judgment is affirmed.


author: DICE, Judge. MORRISON, Judge.

text:
    Rodney Gene BROADWAY, Appellant, v. The STATE of Texas, Appellee.
    No. 40496.
    Court of Criminal Appeals of Texas.
    July 12, 1967.
    Rehearing Denied Oct. 11, 1967.

      John B. McClane, Ardell M. Young, Fort Worth, for appellant.
    Frank Coffey, Dist. Atty., Charles D. Butts, R. J. Adcock, and Roger W. Cramp-ton, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The offense is rape; the punishment, life.

The indictment charged that on or about the 13th day of January, 1966, the appellant did ravish and obtain carnal knowledge of the prosecutrix by force and threats and without her consent.

The record reflects that on the date alleged in the indictment (January 13, 1966) appellant, having been born on August 14, 1949, was sixteen years of age. Following his arrest, a complaint was filed against appellant in the Juvenile Court of Tarrant County. Thereafter, the Juvenile Court certified appellant to the Criminal District Court No. 2 of Tarrant County for proper criminal proceedings, as provided by Sec. 6 of Art. 2338-1, Vernon’s Ann.Civ.St.

On April 19, 1966, the indictment charging appellant with the offense was returned into the Criminal District Court No. 2. On April 22, 1966, the cause was transferred to the Criminal District Court No. 3 of Tarrant County.

On October 25, 1966, appellant was tried and convicted in said court. Trial was under the alternate procedure provided by Art. 37.07-2 of the 1965 Code. Notice was given by the state that it would not seek the death penalty in view of appellant’s age and the provisions of Art. 31, Vernon’s Ann.P.C. Upon return of the jury’s verdict of guilty, appellant elected to have the same jury assess the punishment.

At the trial on the issue of appellant's guilt or innocence, the prosecutrix, a thirty-seven-year-old housewife, testified that in the early morning hours of January 13, 1966, she took her husband to work. She was dressed in her nightgown and wearing a heavy coat for warmth. As she was driving on the freeway, returning to her home, she noticed a car that appeared to be following her. When she arrived home around 3:45 a.m. and had just gotten out of her car, appellant jumped out of the other car, ran to her, and struck her on the back of the head, stunning her. Appellant then hit her two or three times in the chest, threw her in the back seat of the car he was in and sat down on her. Then, with his fist drawn back, appellant said to her repeatedly: “if you scream I will kill you.” Another man in the car then started the car and drove away. After the car started, appellant pulled the prosecutrix’s gown up and performed an oral act of sodomy upon her. The car then stopped and the other man got in the back seat and committed an act of oral sodomy upon her. Appellant then drove the car to a place in the woods and stopped. His male companion then had an act of sexual intercourse with the pros-ecutrix. Then appellant had an act of sexual intercourse with her. Appellant and his companion then tried to force the pros-ecutrix to perform an unnatural sex act with them. She refused, and appellant’s companion then had another act of sexual intercourse with her just as it was getting daylight. The acts of sexual intercourse were without her consent.

The prosecutrix then told appellant and his companion that she would not call the police if they would take her home. They then took her to within a short distance of her home and let her out of the car. As she got out of the car the prosecutrix told appellant’s companion that she was glad he did not hurt her “any worse than you did,” to which he replied: “Oh, we don’t ever hurt them.”

After arriving home the prosecutrix called her husband, who came home and was told what happened. The police were called and prosecutrix was taken to a hospital, where the doctor’s examination showed that she had engaged in a recent act of sexual intercourse.

Appellant did not testify but offered testimony in support of his defense of insanity. Evidence was also presented by the state on the issue.

The jury, in its verdict, found appellant sane at the time of commission of the offense, sane at the time of trial, and guilty of rape by force and threats, as charged in the indictment.

Seven grounds of error are urged by appellant in his brief filed in the trial court.

In his first two grounds of error he insists that the evidence is insufficient to support the conviction and that the punishment is excessive.

It is insisted that the evidence is insufficient to sustain the conviction for rape by force and threats because the prosecu-trix did not testify that she actually resisted appellant’s acts and that she was placed in fear of death or bodily injury as a result of the threats made by him. It is also insisted that the evidence is insufficient because there was no proof of injury to the prosecutrix.

We have carefully reviewed the record in light of such contention, and find no merit therein.

The prosecutrix testified that she did not consent to the acts of intercourse and that appellant threatened to kill her if she did not submit to his acts. She swore positively that she thought appellant and his companion were going to kill her. In explaining her non-consent, she stated:

“Well, I didn’t consent. It was just that I didn’t dare try to get out because they would have killed me. I know that * * *

In determining the sufficiency of force used, the jury can take into consideration threats made by an accused at the time of commission of the offense. Vanderpool v. State, 155 Tex.Cr.R. 318, 234 S.W.2d 879.

The force used by appellant and his companion, under the circumstances, was such as might be reasonably supposed to overcome resistance by the prosecutrix, as required by Art. 1184, V.A.P.C.

The threats were also, under the facts and circumstances, such as might reasonably create a just fear of death or bodily harm to the prosecutrix, as required by Art. 1185, V.A.P.C.

The punishment fixed by the jury is within the limits prescribed by law for the offense, and it is not within the province of this court to pass upon the propriety thereof. Garcia v. State, 166 Tex. Cr.R. 482, 316 S.W.2d 734; Gonzales v. State, Tex.Cr.App., 386 S.W.2d 139.

The grounds of error are overruled.

In his grounds of error Nos. 3 to 7, appellant insists that the court erred in permitting Officers Barron and Glass to testify, at the hearing on the issue of punishment, that his general reputation for being a peaceable and law-abiding citizen was bad —over the objection that such testimony was inadmissible under the provisions of Art. 2338-1, supra. In the alternative, it is insisted that such testimony should have been limited to the period of time prior to the offense alleged in the indictment.

Appellant first contends that the evidence of his general reputation while a juvenile was inadmissible by virtue of the provisions of Art. 2338-1, Sec. 13, which reads, in part, as follows:

“No adjudication upon the status of any child in the jurisdiction of the Juvenile Court shall operate to impose any of the civil disabilities ordinarily imposed by conviction, nor shall any child be deemed a criminal by reason of such adjudication, nor shall such adjudication be deemed a conviction, nor shall any child be charged with or convicted of a crime in any court except as provided in Section 6 of this Act as amended by Section 3 hereof. The disposition of a child or any evidence given in the court shall not be admissible as evidence against the child in any case or proceeding in any court other than the Juvenile Court, except as provided in Section 6 of this Act as amended by Section 3 hereof, nor shall such disposition or evidence operate to disqualify a child in any further civil service examination, appointment or application.”

In support of his contention, appellant points out that in the enactment of Art. 2338-1, supra, by the 48th Legislature, in 1943, the statute repealed certain existing statutes, including Art. 1092 of the 1925 Code of Criminal Procedure, which read, in part, as follows:

“A disposition of any delinquent child under this law or any evidence given in such case, shall not, in any civil, criminal, or other cause or proceeding whatever, in any court, be lawful or proper evidence against any child for any purpose whatever, except in subsequent cases against the same child under this law.”

Cases decided under said Art. 1092, supra, which held that no reference could be made to prior juvenile proceedings for the purpose of impeachment are cited by appellant.

We do not agree that the provisions of Art. 2338-1, Sec. 13, prohibit proof of the child’s general reputation for being a peaceable and law-abiding citizen upon a trial of the child as an adult after being certified for proper criminal proceeding in another court, as provided by Sec. 6 of the Act.

Art. 2338-1, supra, Sec. 6, which provides that a juvenile court may, in its discretion, certify a child sixteen (16) years of age or older — charged with an offense which would be a felony if committed by an adult — to any court which would have jurisdiction of the offense, concludes with the following language:

“If the Grand Jury returns an indictment, the child shall be subject to the penal laws of this State and tried in accordance with the Penal Code and Code of Criminal Procedure as if the child were an adult.”

Art. 37.07, subd. 2, providing for the alternate procedure in determining guilt or innocence and punishment in a felony case less than capital or in a capital case where the state has made it known that it would not seek the death penalty, reads, in part, as follows:

“Regardless of whether the punishment be assessed by the judge or the jury, evidence may be offered by the State and the defendant as to the prior criminal record of the defendant, his general reputation and his character.”

We hold that in the instant case the state was properly permitted to offer testimony as to appellant’s bad reputation up to and including the date of trial.

Under the provisions of Art. 37.07, the jury was authorized to consider appellant’s general reputation in fixing the punishment.

The cases cited by appellant which were decided under the 1925 Code of Criminal Procedure, holding that — subject to certain exceptions — the state could only inquire into the accused’s reputation up to the time of the commission of the offense, are not controlling and applicable to a separate trial on the question of punishment, under Art. 37.07-2 of the 1965 Code. Our conclusion is not in conflict with the court’s holding in The City of Houston v. Watson, 376 S.W.2d 23 (Tex.Civ.App., wr. ref., n.r.e.), cited by appellant, that testimony in a personal-injury civil suit as to the credibility and delinquency of a minor child was inadmissible as a matter of law, under Sec. 13 of Art. 2338-1, supra.

The grounds of error are overruled.

The judgment is affirmed.

CONCURRING OPINION

MORRISON, Judge.

I agree with Judge DICE’S opinion entirely, except that one of the cases cited by appellant’s counsel on the last point discussed is Stephens v. State, 128 Tex.Cr.R. 311, 80 S.W.2d 980, which still represents a correct statement of law, and the bench and bar should not be mislead by any statement which would indicate that it is no longer applicable.


text:
    Charles Ray SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 40547.
    Court of Criminal Appeals of Texas.
    July 19, 1967.
    Rehearing Denied Oct. 11, 1967.

      Don Metcalfe, James B. Zimmerman, Dallas, for appellant.
    Henry Wade, Dist. Atty., Robert Stenson, John Stauffer and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is murder with malice; the punishment, 99 years.

The sufficiency of the evidence to sustain the conviction is not challenged and a recitation of the facts adduced will not be undertaken other than to assert that the defense of self-defense was interposed and was by the jury rejected. A motion for probation was made and submitted to the jury in the court’s charge.

Appellant’s first grounds of error relate to the court’s failure to instruct the jury not to consider certain argument of the prosecutor. Appellant’s counsel had argued in favor of probation and urged the jury not to take away appellant’s hope for the future. In answer thereto the following occurred:

“MR. STINSON: * * * Now, there is another reason, still another reason: He says, ‘Don’t leave this boy without hope.’ I know that none of you are blind. You have been here the past two days; your here at this moment. You can see the people in the courtroom. These are the people here that will gain an impression by the verdict that you yvrite down here. These people will hear that you have — many of them you have heard from the witness stand.
“MR. ZIMMERMAN: Judge, your Honor, excuse, me, Mr. Stinson, I’m going to object to him making an argument to this Jury to the effect that they should base their judgment on what these people think.
“THE COURT: I sustain it.
“MR. ZIMMERMAN: Because the law doesn’t contemplate that and the rights that this man has doesn’t contemplate that, and I don’t think they want to be used that way.
“MR. STINSON: I’m not talking about what these people think, Your Honor. I’m talking about what their verdict, the impression it will make on all of the people of this county.
“MR. ZIMMERMAN: We move for a mistrial on that grounds, Judge.
“THE COURT: Overruled.
“MR. ZIMMERMAN: Ask the Jury be instructed to disregard it.
“THE COURT: Overruled.”

We have carefully considered the cases of Hazzard v. State, 111 Tex.Cr.R. 539, 15 S.W.2d 638, Taylor v. State, 122 Tex.Cr.R. 77, 53 S.W.2d 610, and Allison v. State, Tex.Cr.App., 248 S.W.2d 147, relied upon by appellant as well as Cox v. State, 157 Tex.Cr.R. 134, 247 S.W.2d 262, and Pennington v. State, 171 Tex.Cr.R. 130, 345 S.W.2d 527, 85 A.L.R.2d 1130, but do not find that such holdings condemn the above quoted argument. We need cite only the opinion on motion for rehearing in Threadgill v. State, 156 Tex.Cr.R. 157, 239 S.W.2d 813, as demonstrating the type of argument which this Court, though not approving, has held not to demand a reversal. See also Owens v. State, 168 Tex.Cr.R. 88, 323 S.W.2d 260; Kirk v. State, 172 Tex.Cr.R. 550, 360 S.W.2d 150; Castillo v. State, Tex.Cr.App., 362 S.W.2d 320.

If we properly understand appellant’s contention it is that when the court sustained the first objection he certified that error had been committed. Such a contention is without merit.

Appellant’s next ground of error relates to the failure of the trial court to submit a charge on simple assault. Reliance is had on Melton v. State, Tex.Cr.App., 367 S.W.2d 678. In Melton, the three large boys in the other automobile were shown to have been the aggressors throughout and the accused fired over the other automobile in the hope that he would frighten off such aggressors. In the case at bar appellant was with a group of boys who were out driving around in “Mill Place” trying to find whomever had stabbed his friend, “Mutt”, and when someone on the street called his name, the driver of the automobile in which he was riding brought it to a halt, backed up to where the group was standing, and the appellant shot into the crowd. These facts distinguish the two cases, and we have concluded that the Court did not err in failing to charge on simple assault. See Smith v. State, Tex.Cr.App., 411 S.W.2d 548.

Appellant’s last ground of error relates to certain argument of the prosecutor to which appellant’s counsel objected; such objection was sustained and counsel requested no further ruling from the court. In Van Skike v. State, Tex.Cr.App., 388 S.W.2d 716, this Court held that where an objection to argument such as complained of here is sustained and appellant requests no further action by the court, any error which may have occurred is not preserved for review.

Finding no reversible error, the judgment is affirmed.


text:
    Commodore Foster BEBOUT, Appellant, v. The STATE of Texas, Appellee.
    No. 40521.
    Court of Criminal Appeals of Texas.
    July 19, 1967.
    Rehearing Denied Oct. 11, 1967.

      O. E. Halsell, Odessa, for appellant.
    Jake Tidwell, Dist. Atty., Bill McCoy, Asst. Dist. Atty., Odessa, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is felony theft; the punishment, enhanced by two prior convictions for a felony less than capital, life.

The indictment alleged the theft of one Colt revolver of the value of more than $50.00, alleged to be the corporeal personal property of Henry Boulton and taken from his possession.

The ground of error set forth in appellant’s brief is: “that the trial court committed reversible error in refusing to permit appellant’s attorney to argue the issue of who had possession of the pistol.”

The evidence was that the pistol was owned by Phil Parker, son of Mr. and Mrs. Ray Parker, and that two such pistols each of the value of more than $50.00 were taken from the room referred to as Phil’s room in the residence of his parents, in Odessa, by appellant and were found in appellant’s automobile.

The undisputed evidence shows that Phil’s parents had given him the Colt revolvers as a Christmas present and were keeping them for him because he had not chosen to take them with him to his apartment in Fort Worth, where he was living with his wife and' going to school.

Mr. and Mrs. Ray Parker were out of town when the pistols were taken.

Mrs. Parker testified that she left Henry Boulton (spelled BoZton in the statement of facts), a painting contractor, “in charge of the house and everything that was in it,” when she left town and “the pistols were in the house,” and that she gave him the keys. She further testified that her maid was also in control of her house and had keys; that they both had control.

Appellant’s sole claim for reversal is that the record does not establish as a matter of law that possession of the pistol was in Henry Boulton at the time it was taken and, therefore, possession was a fact issue and counsel should have been permitted to argue such issue to the jury.

Appellant correctly points out that at the time the pistols were taken and recovered Boulton had gone to the paint store and only appellant and Mrs. Parker’s two maids were in the house, and one of the maids testified on cross-examination that when Mr. Boulton left, she was in control.

The maid further testified:

“Q. You said that when Mr. Boulton was out there working all this crew and the Parkers were out of town when something fouled up or went wrong or something Mr. Boulton was the man you reported to and told about it ?
A. Yes, sir, when the Parkers were out of town, yes.”
“Q. Who was in charge of the home when you were there and Mr. Boul-ton was there?
A. I was there working so I guess both of us.
Q. Well, in other words if the Parkers were not there and you and Mr. Boulton is there you say both of you are in charge of the home?
A. If anything happened and Mrs. Parker wasn’t in I would tell him.”

The trial judge properly ruled that the allegation as to ownership and possession in Henry Boulton was sufficient under Art. 21.08 Vernon’s Ann.C.C.P. and there was no issue of fact in regard to possession which should be argued before the jury.

“Where one person owns the property, and another person has the possession of the same, the ownership thereof may be alleged to be in either. Where property is owned in common, or jointly, by two or more persons, the ownership may be alleged to be in all or either of them. * * * if

Ritchie v. State, 171 Tex.Cr.R. 51, 344 S.W. 2d 878; Salinas v. State, Tex.Cr.App., 365 S.W.2d 362; Lockett v. State, 59 Tex.Cr. R. 531, 129 S.W. 627, 628.

The provisions of Art. 21.08, supra, as to ownership apply alike to special owners as well as general owners. Branch’s Ann.P.C., Sec. 2621.

The judgment is affirmed.


author: WOODLEY, Presiding Judge. DICE, Judge.

text:
    Nathaniel WILSON, Appellant, v. The STATE of Texas, Appellee.
    No. 40219.
    Court of Criminal Appeals of Texas.
    June 21, 1967.
    Rehearing Denied July 26, 1967.
    Second Rehearing Denied Oct. 11, 1967.
    Jack Hampton, Dallas, for appellant.
    Henry Wade, Dist. Atty., Darrell Jordan, Al Alsup and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is unlawfully carrying a pistol; the punishment, 6 months in jail.

Trial was before a jury on a plea of not guilty.

The only ground of error raised on appeal is the sufficiency of the evidence to sustain the conviction. Appellant contends that his case falls within the exception to the pistol law (Art. 484, Vernon’s Ann. P.C.) which excludes from the operation of the statute “the carrying of arms on one’s own premises.”

The jury was charged as follows:

“As a part of the law in this case, a defendant has the legal right to carry a pistol upon premises of which he has control and which are subject to his use; therefore, if you find from the evidence, or have a reasonable doubt thereof, that the carrying of the pistol by the defendant was solely upon premises under his control and of which he had the use, you will find the defendant not guilty and so say by your verdict. In this connection, you are instructed that the terms ‘control’ and ‘use’ do not mean exclusive control and use.”

Appellant was a tenant in a large apartment complex containing several hundred units in a number of separate buildings. On the evening in question another tenant, Matt Crawford, held a birthday party for his wife at the apartment recreation building. After the party was over several persons, including appellant, stayed to take the things back to the Crawford apartment that had been taken there for use at the party.

Appellant and Matt Crawford got into an argument on the driveway immediately adjacent to the apartment building in which appellant leased and occupied an upstairs apartment. Arthur Simmons testified that he walked up to where the argument was taking • place and took a knife out of appellant’s hand, and that at the same time several of Matt Crawford’s relatives took a knife out of Crawford’s hand. Appellant immediately left the scene and was seen going into a neighbor’s apartment located in the opposite direction from his own. Approximately ten or fifteen minutes later, appellant returned and had a pistol in his hand. Simmons testified that appellant did not come out of his own apartment; that he (Simmons) was facing appellant’s apartment, talking with other people, and that he would have known had appellant gone into his own apartment. Appellant accosted Simmons and the latter turned around to walk away, but was hit by appellant on the head from behind with the pistol, and was knocked unconscious.

There was no. direct testimony that appellant was seen with the pistol at any place other than the driveway adjacent to the building in which he lived. The testimony showed that there was a ten foot wide strip of grass between the sidewalk and the apartment building, and that there was a parking lot on the other side of the driveway from the building. The manager of the apartment complex testified that the grass, sidewalks, driveway and parking lot were for the use of all tenants of the complex.

Viewed in the light most favorable to the state, we find the evidence sufficient to sustain the jury’s finding that the carrying of the pistol by appellant was not solely upon premises under his control and that reasonably necessary to the use and enjoyment of such premises.

The judgment is affirmed.

OPINION

ON APPELLANT’S MOTION FOR REHEARING

DICE, Judge.

We have again reviewed the record in light of appellant’s motion for rehearing, and remain convinced that the facts do not bring this case within the exception to the pistol law, Art. 484, supra, which excludes from its operation “the carrying of arms on one’s own premises.”

We are unable to agree that a tenant who carries a pistol upon the grass, sidewalks, driveway, and parking lot jointly used by all tenants of a large apartment complex, such as the one described herein, is on “one’s own premises,” within the meaning of the statute.

The motion for rehearing is overruled.


text:
    William Henry DOLLAR, Appellant, v. The STATE of Texas, Appellee.
    No. 40522.
    Court of Criminal Appeals of Texas.
    July 12, 1967.
    Rehearing Denied Oct. 11, 1967.
    Will Gray, Houston (on appeal only), for appellant.
    Henry Wade, Dist. Atty., John Rogers, Jack Hampton and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is breaking and entering a motor vehicle with prior convictions for burglary and felony theft alleged for enhancement; the punishment, life.

This is an appeal from a re-sentencing of appellant. The indictment was in regular form and alleged in the third count that a 1947 felony theft conviction was a final conviction for an offense committed by appellant prior to the commission and conviction of the 1949 burglary conviction. It is appellant’s contention that the evidence was insufficient to establish that the 1947 conviction was prior to the commission of the 1949 burglary.

Facts as to the prior convictions alleged for enhancement were stipulated, and in the stipulation the phrase “for an offense” was omitted and the stipulation read, as far as the 1947 conviction was concerned, in part as follows: “that the (1947) conviction was a final conviction and was a conviction committed by him the said William Henry Dollar prior to the commission and conviction of the offense herein alleged” (the 1949 burglary conviction). Omitting the phrase “and was a conviction committed by him”, the stipulation still contains the admission that the 1947 conviction was a final conviction prior to the commission and conviction of the 1949 burglary.

Reliance is had, among other cases, upon Rogers v. State, 169 Tex.Cr.R, 239, 333 S.W.2d 383, in which the writer dissented. In that case there was no proof other than the indictment that the 1951 Harris County conviction was for an offense committed after the 1948 conviction from Victoria County. The dates alleged in the indictment were held to be insufficient because the State is not bound by the commission date alleged in the indictment, but may prove the offense was committed on any date anterior to the presentment of the indictment, so long as not so remote to be barred by the statute of limitation.

In the case at bar indictments are not relied upon to prove that the 1947 conviction was final before the commission of the offense in the 1949 conviction; instead reliance is upon the above quoted stipulation entered into by counsel for the State and counsel for the appellant, and we find the same to be sufficient under Article 63, Vernon’s Ann.P.C.

Appellant’s next contention is that he is not bound by the stipulation of his counsel since he was not shown to have personally joined in the same. There can be no merit in this contention because appellant, testifying in his own behalf as to the facts of the primary offense in answering questions propounded by his own counsel, admitted that he was the same William Henry Dollar mentioned in “these two other cases” and that he had been “down to Huntsville”.

Finding no reversible error, the judgment is affirmed.

      . Willson’s Criminal Forms, Seventh Edition, Section 2333.


author: HUGHES, Justice.

text:
    W. L. NOEL et al., Appellants, v. Merritt Dell ORR et al., Appellees.
    No. 11528.
    Court of Civil Appeals of Texas. Austin.
    Sept. 13, 1967.
    Rehearing Denied Oct. 4, 1967.

      Phillip Palmer, William R. Lozano, San Antonio, for appellant.
    Carter, Callender & Onion, James L. Branton, San Antonio, for appellee.
   HUGHES, Justice.

This suit is a collateral attack on the judgment of the County Court of Comal County, Texas, rendered October 2, 1961, admitting to probate a writing as the last will and testament of Cora Doell Noel, deceased.

The form of this suit is one to remove the judgment probating such will as a cloud on the title to certain described real estate in Comal County which the testatrix owned at the time of her death.

The parties to this suit are W. L. Noel, Maxie Luppens and Monty Doell, plaintiffs, and Merritt Dell Orr, Erna Doell Thain and husband George Thain, defendants.

These parties claim an interest in the property in suit either under the will of Cora Doell Noel or as her heirs and the heirs of her deceased husband, H. L. Noel.

The trial court rendered judgment that plaintiffs, appellants here, take nothing by their suit.

Appellants present a single point which is that the judgment of the County Court admitting the writing tendered as the will of Cora Doell Noel to probate is void and that the trial court erred in not removing such judgment as a cloud on the title to the real estate in suit.

The application to probate the will of Cora Doell Noel contained this allegation:

“Said decedent left a Will entirely in her own handwriting, dated August 11, 1956, but said Will does not appoint an Executor. Said Will is filed with this Application.”.

H. L. Adams, a witness, testified in support of the application to prove such will. His testimony was reduced to writing, sworn to, and was filed in the probate cause. We quote from such affidavit as follows:

“I was well acquainted with Cora Doell Noel during her lifetime, having known her for five years before her death on September 8, 1958. I am familiar with the handwriting of the said Cora Doell Noel, and know that the signature on her Will dated August 11, 1956, which has been shown to me, is the true signature of the said Cora Doell Noel.”

A similar affidavit made by Erna Doell Thain was filed in such probate cause.

The judgment probating the will of testatrix, we copy in full:

A photostatic copy of the writing offered as the will of Cora Doell Noel appears in the record. It is all handwritten.

We quote from appellants’ brief the substance of their argument that the probate judgment is void:

“Appellants contend that the County Court in this case failed to act in conformity with the Probate Code so as to validity exercise the probate jurisdiction granted to it by the Constitution.
V.A.T.S. Probate Code, Sec. 60 in part provides: ‘Where the will is written wholly in the handwriting of the testator, the attestation of the subscribing witnesses may be dispensed with.’
V.A.T.S. Probate Code, Sec. 84(b) provides : ‘If not self-proved as provided in this Code, a will wholly in the handwriting of the testator may be proved by two witnesses to his handwriting, which evidence may be by sworn testimony or affidavit taken in open court, or, if such witnesses are non-residents of the county or are residents who are unable to attend court, by deposition, either written or oral, taken in the same manner and under the same rules as depositions taken in other civil action.’
The alleged will, affidavits and the Judgment, i. e., the record, reflect that the proof offered by Appellee, Merritt Dell Orr, was not that required for the probate of a holographic will. The instrument filed by Appellee, Merritt Dell Orr, is obviously wholly handwritten. However, the Probate Code requires that before any such instrument can be admitted to probate as a Last Will and Testament, same must be proved by two witnesses to the handwriting which evidence may be sworn testimony or affidavit taken in open court, that it was wholly in handwriting of the testator.”

The principles to be applied here do not seem to be in dispute. We believe they are well settled. The subj ect has been recently treated by Gus M. Hodges, Professor of Law, University of Texas, in Articles, Collateral Attacks on Judgments, appearing in Vol. 41, p. 163, and p. 499, Texas Law Review. Needless to say, these articles are scholarly, comprehensive, and supported by the citation of Texas authorities. We quote the following principles and statements from these articles which we accept as sound and applicable here:

“Further, as will be shown, recitations in the judgment control the rest of the record,' so that even though other parts of the record show a lack of jurisdiction, if the judgment recites the contrary, the collateral attack fails.
The policy considerations which support such a drastic doctrine must be considered, since it may indeed result in the injustice of binding a person by a judgment rendered by a court which had no jurisdiction. The value of the sanctity of official judicial records and the counter-injustice which would result from allowing them to be contradicted by extrinsic evidence after a lapse of time, with the resulting fading of memories subject to the pressures of self-interest are important. The general policy favoring the final ending of disputes is also-involved.
However, the strongest support for the policy is found by analogy to the similar effect given to the recordation of titles to land. There also, injustice is suffered by one who is the true owner of land but loses to another whose conveyance from the record owner, who in truth had no interest, is protected. The analogy is apt since all but a relatively few decisions invoking the principle are cases involving titles to land.
The principle to be developed here may be summarized as follows: Evidence extrinsic to the record may not be considered. Recitation of the judgment controls the rest of the record. Lack of jurisdiction must affirmatively appear in the record, for if the record is silent the attack fails. * * *
It is said that Texas is the only jurisdiction in the United States in which recitations of the judgment control the rest of the record in this last situation. It is quite clear that in Texas the recitations do so control.
So it is accurate to say, as to Texas law, that the recitations do control all else, unless a lack of jurisdiction is shown in the judgment itself, despite the recitation. * * *
The recitations need not be specific to be controlling and ordinarily are quite general.”

Applying these principles to the judgment probating the will, we conclude that such judgment does not affirmatively disclose a lack of jurisdiction or authority for its rendition. On the contrary, it contains recitations, general in nature, sustaining its jurisdiction and authority to probate the will of Cora Doell Noel.

The general recitation found in the judgment is that it appeared to the Court “ * * that said will was executed by said deceased with the formalities and solemnities and under circumstances required by law to make it a valid will. * * * ”

We find nothing in the judgment inconsistent with or contradictory of this judgment recital.

The finding in the judgment that the handwritten signature was the true signature of deceased is not a finding that the will was not wholly in her handwriting. It is a finding consistent with the requirements for all written wills. It, therefore, could not be proof that the court lacked jurisdiction or authority to probate this will, nor could it create a doubt as to the jurisdiction or authority of the court.

Proof of a will is not limited to the statutory methods of proving a will. Hopf v. State, 72 Tex. 281, 10 S.W. 589. Sec. 84, Probate Code, Vol. 17A, V.A.T.C. S., provides, in part, that a holographic will “may” be proved in the manner stated. Other means of proof are not excluded.

In this case the will was before the court for inspection. The authenticity of the signature on it being established, the court could compare this signature with the body of the will. From our examination of a copy of this will it appears to us, as laymen, and must have so appeared to the probate judge, that it was wholly written by the person who signed it.

We also observe that there is no showing that the affidavits or testimony of the two witnesses, noted above, constituted all the evidence before the court probating this will. On this point, we quote again from the article by Mr. Hodges, p. 532:

“Perhaps in its broadest statement, that recitals in the judgment control all else, the rule is not as clearly supported by policy grounds as other rules on collateral attack. Obviously the recitals control as against extrinsic evidence, and also when the rest of the ■ record is silent or in accord with the recitations. Likewise, even if the rest of the record shows facts which would indicate a lack of jurisdiction standing alone, if it does not exclude the possibility that other facts exist which would show proper jurisdiction notwithstanding, the recitals of the judgment would control, elsewhere as in Texas.”

In affirming this judgment, we quote, appropriately we believe, the following from Whitman v. Haywood, 77 Tex. 557, 14 S.W. 166:

“All that was required was to show that an order for the probate of the will was made by a court having jurisdiction to make the order. If the evidence was not sufficient to authorize the judgment, the only way to avoid its effect was to pursue the remedies prescribed by the statute for that purpose. In a collateral proceeding the evidence upon which the will was established will not be considered, however defective it may seem.”

The judgment of the trial court is affirmed.

Affirmed.

      . Cause No. 3888, In the Matter of the Estate of Cora Doell Noel, deceased, In the County Court of Comal County, Texas.


author: PER CURIAM.

text:
    ABILENE SAVINGS ASSOCIATION et al., Appellants, v. Charles RODERICK et al., Appellees.
    No. 4193.
    Court of Civil Appeals of Texas. Eastland.
    July 28, 1967.
    Rehearing Denied Aug. 25, 1967.
    George A. Day, Brownwood, W. R. Sessions, Dallas, for appellants.
    L. B. Slagle, Brownwood, William W. Bell, Waco, M. Bryan Healer, Levie Old, Gary R. Price, Brownwood, for appellees.
   PER CURIAM.

On application of Brownwood Plumbing & Sheet Metal and other lien holders, the court appointed the Honorable A. J. Bell receiver of property in Brown County known as Shamrock Sports Inn. The court also enjoined Abilene Savings Association and Robert A. Jordan, substitute trustee, from selling the property under a deed of trust. Abilene Savings Association, Harry A. Forbess, Lovena Forbess, F. & F. Services and F. & F. Builders have appealed.

Construction of the Sports Inn began in July 1965. Harry A. Forbess put approximately $200,000.00 of his money in this project. Plans and specifications were submitted to Abilene Savings with an application for a loan. On March 17th, 1966, Co-pano Land Company conveyed the property in dispute to F. & F. Services, Inc., a corporation controlled by Mr. Forbess and his wife. A vendor’s lien was reserved in favor of Abilene Savings for $250,000.00 and it was additionally secured by a deed of trust of even date to C. W. Gill, trustee. The deed contained the following provision:

“ — subject to any liens and/or rights to liens caused by acts or omissions of Grantee and/or of any corporation, partnership (including F. & F. Builders), sole proprietorship, and/or other entity in which Grantee and/or Harry A. Forbess has a financial interest, direct or indirect, including any of such parties having caused any improvements to have been made, commenced or contracted for on the above described real property and including without being limited to the claimed liens of Central Texas Iron Works, Brownwood Concrete Company, Texas Concrete Works, Inc., Pecan Valley Electric Company, a partnership, Brownwood Plumbing & Sheet Metal, and any other liens or claimed liens of record in the office of County Clerk, Brown County, Texas upon the above described real property.”

The record reveals that the entire consideration recited in the deed from Copano to F. & F. Services was not paid, but that part of it was paid.

On September 29th, 1966 the property was conveyed to Shamrock Shores, Inc., by F. & F. Services. The consideration for that conveyance was that Shamrock was to pay all outstanding obligations, including the one to Abilene Savings.

Article 2293 of Vernon’s Ann.Civ.St. authorizes the appointment of a receiver where a corporation is insolvent or in imminent danger of insolvency, and “ — on the application of the plaintiff or any party whose right to or interest in the property or fund or the proceeds thereof is probable — .” Forbess testified that F. & F.’s bank balance was “a lot of Zeroes”, had no assets and was bankrupt and insolvent. His testimony about Shamrock’s assets and liabilities and other facts and circumstances in evidence constitute some evidence of probative force and justified the court’s conclusion that it was insolvent or in imminent danger of insolvency.

Appellants contend that the court erred in holding that the appellees owned any interest in the property which would entitle them to a receivership. The court found that appellees “own an interest in said property by virtue of being lien holders against the same.”

The receiver was not appointed for the benefit of the appellees alone, but for the benefit of all interested parties. Whitson Co. v. Bluff Creek Oil Co., 256 S.W.2d 1012 (Tex.Civ.App.), error dismissed. We are of the opinion that some of the appellees had such an interest in the property as was required by said Article 2293. In the Whitson case, supra, the court said:

“The court may appoint a receiver when two conditions exist: (1) The plaintiff or other party must be shown to have a probable right to or interest in the property or fund; (2) it must be shown that the property or fund is in danger of being lost, removed or materially injured.”

The deed from Copano to F. & F. Services of March 17, 1966, in which the vendor’s lien and deed of trust were reserved in favor of the Abilene Savings expressly stated that it was subject to any lien or right to liens caused by any entity in which Harry A. Forbess had an interest, including any of the parties “having caused any improvements to have been made, commenced or contracted for on the above described real estate and including without being limited to the claimed liens of Central Texas Iron Works — ”.

In Tomlinson v. Higginbotham Bros. & Co., Tex.Civ.App., 229 S.W.2d 920 (no writ history), the court said:

“The law is well settled that while a building is under construction, any person who takes a mortgage thereon does so with notice of any mechanics’ or mate-rialmen’s liens. It is his duty to make inquiry as to whether or not labor has been performed or material furnished within the statutory period for filing liens for which payment has not been made.”

On October 11, 1965, Central Texas Iron Works entered into a contract with Harry A. Forbess to furnish some materials for construction of the Shamrock Sports Inn. Pursuant to such contract it furnished materials and filed its affidavit claiming a mechanics’ lien. This lien in the amount of $24,100.15 was paid and a release was filed for record on March 24, 1966. Mr. Forbess testified that at the time the transaction with Abilene Savings was closed, Central Texas Iron Works had not delivered all the material he had ordered. He did not know the exact figure but that there was then some money owing to it for materials. When the release of the lien for $24,100.15 was delivered to Abilene Savings, its disbursing agent was notified that Central Texas Iron Works then had some prefabricated but undelivered steel for Mr. Forbess. Central Texas Iron Works’ lien dates back and has its inception on October 11, 1965, the date of its contract with Forbess. Such conclusion is supported by Oriental Hotel Co. v. Griffiths (1895), 88 Tex. 574, 33 S.W. 652, 30 L.R.A. 765, and The Lubbock National Bank v. Hinkle, Tex.Civ.App., 397 S.W.2d 285 (Error ref. n. r. e.), and cases therein cited. It appears that Central Texas Iron Works has a statutory or a constitutional lien. “The appointment of a receiver destroys no vested right, nor does it determine any right as between the parties by reason of a pre-existing contract. Those rights remain enforceable.” Ex parte Britton (1936), 127 Tex. 85, 92 S.W. 2d 224.

At the time Forbess began construction he had a contract with Copano to purchase the land. He did not have a deed. Forbess did not have a copy of his sales contract and did not know whether it was signed by him individually or under the name of F. & F. Services, a corporation, controlled by him and his wife. The record reveals that For-bess did business individually, and in the name of F. & F. Builders and F. & F. Services, corporations controlled by him and his wife. He was also a director in Shamrock Sports Inn. The evidence justifies the following statement from Central Texas Iron Works’ brief: “The facts of this case certainly justify the Court in finding that this Appellee dealt with the ‘owner’, H. A. For-bess, that these corporations were merely outward manifestations of Mr. Forbess, who was their inspiration and soul.” Appellants contend that the contract under which the Iron Works claims was not made with the owner of the property, Co-pano Land Company. This court has answered that question contrary to appellants’ contention in the Tomlinson case (supra), where we said:

“Fields Brothers were in possession of the lot at the time plaintiffs began to furnish labor and material. Before the house was completed they acquired title thereto. We believe that Fields Brothers, by virtue of their thereafter acquired title, were ‘owners’ within the terms of the law. Plaintiffs’ lien attached to the after acquired title as if Fields Brothers had been the owners at the time the work was commenced on the building.”

The trial court is clothed with broad discretion in granting or refusing a temporary injunction. Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460.

We fail to find in the record a-sworn written motion for a continuance as required by Rule 251, Texas Rules of Civil Procedure. Also see Coleman v. Banks, Tex.Civ.App., 349 S.W.2d 737 (writ ref. n. r. e.). Therefore, reversible error is not shown to have been committed by refusal to continue the case.

We have considered the entire record and find that the court’s conclusion that Shamrock was insolvent or in imminent danger of insolvency is not against the great weight and preponderance of the evidence. In re King’s Estate, ISO Tex. 662, 244 S.W.2d 660 (1951).

We find no merit in appellants’ point that the court erred in ordering the receiver to take possession of'the furniture, fixtures and boat docks. In Schumann v. Jenkins, Tex.Civ.App., 40 S.W.2d 214 (writ ref.), the court said:

“A fixture has been defined, in the case of Hutchins v. Masterson, 46 Tex. 551, 26 Am.Rep. 286, as follows:
“ ‘The weight of the modern authorities establishes the doctrine that the true criterion for determining whether a chattel has become an immovable fixture, consists in the united application of the following tests:
“ ‘1st. Has there been a real or constructive annexation of the article in question to the realty?
“ ‘2nd. Was there a fitness or adaptation of such article to the uses or purposes of the realty with which it is connected?
“ ‘3rd. Whether or not it was the intention of the party making the annexation that the chattel should become a permanent accession to the freehold? — this intention being inferable from the nature of the article, the relation and situation of the parties interested, the policy of the law in respect thereto, the mode of annexation, and purpose or use for which the annexation is made.
“ ‘And of these three tests pre-eminence is to be given to the question of intention to make the article a permanent accession to the freehold, while the others are chiefly of value as evidence as to this intention.’ See Moody v. Aiken, 50 Tex. 65; Willis & Bro. v. Morris, 66 Tex. 628, 1 S.W. 799, 59 Am.Rep. 634.”

The only evidence we find about the furniture comes from Mr. Forbess who said “the furniture was going to be on a lease basis.”

We have considered all of appellants’ points and fiñd no merit in them. They are overruled.

The judgment is affirmed.

ON MOTION FOR REHEARING

We have again considered the record and have concluded that the learned trial court did not abuse his discretion in appointing a receiver and granting a temporary injunction.

The motion for rehearing is overruled.


author: PARKER, Justice.

text:
    C. B. DORSETT v. STATE of Texas et al.
    No. 6886.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 7, 1967.

      Fenley & Fenley, Lufkin, for appellant.
    Sumner Williams, Jr., Lufkin, for ap-pellees.
   PARKER, Justice.

This is a condemnation suit for highway purposes. In answer to special issues numbered below the jury found:

1. $890.00 to be the market value on September 11, 1963 of the 2.543 acres of land condemned as severed land.
2. $11,389.69 was the market value of Dorsett’s 50 acres of land, exclusive of the 2.543 acres condemned, immediately before the 2.543 acres was taken for Farm-to-Market Road purposes.
3. $10,589.68 was the market value of the remaining 47.457 acres of land immediately after the taking of the 2.543 acres of land.

Plaintiffs moved the court to disregard jury’s findings in answer to special issues 2 and 3 on the ground of no evidence to sustain either of such findings; that to allow such findings to stand would allow defendants a double recovery. Such motion was granted with judgment entered on the jury finding in answer to special issue No. 1.

Dorsett owned a 50 acre tract. An unpaved county road ran through the 50 acres in a northwest to southeast direction. Approximately 10 acres is north of the road and 40 acres south of the road. To construct Farm-to-Market Road 1475 with a 100 foot right-of-way, strips on each side of the old county road were condemned and taken by the State. The old county road contained .832 acres. The strips taken contained 2.543 acres. The date of taking was September 11, 1963. During 1963 and 1964 Farm-to-Market Road 1475 was constructed.

There is no controversy as to the market value of the 2.543 acres as found by the jury in answer to special issue No. 1 to be $890.00. This included the timber on such land, 2800 feet of fences and one-half of a barn or shed. The market value of the 2.543 acres taken was determined by considering it as composed of the two separate strips of land taken. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 979; State v. Meyer, 403 S.W.2d 366 (S.Ct. 1966).

Special issues Nos. 2 and 3 are phrased in accordance with State v. Carpenter, supra. This decision also controls the disposition of appellant’s sole point of error, contending the trial court erred in disregarding the findings of the jury in answer to special issues Nos. 2 and 3.

State v. Carpenter, supra, on page 198 of 89 S.W.2d approved the language in Currie v. Glasscock County, Tex.Civ.App., 212 S.W. 533, 534, as follows:

“We are of the opinion that the court erred in its finding of fact and conclusion of law that no proof had been offered to show depreciation in value. The fact that the road necessitated additional fencing and establishment of an additional watering place in order to restore the land to its former usefulness and value for the purpose for which it was used by the owner was evidence of a depreciated value. * * * ” (Emphasis ours)

Witnesses testified the value of the remainder of the 50 acre tract before the taking of the 2.543 acres and after the taking was as follows:

The jury’s findings as to the values of the remainder before and after taking are within the values testified to by any witness.

Billingsley testified that 6 oak trees on the land taken were, some 70 feet from Dorsett’s home. These trees had shaded the home and the loss of this shade damaged the remainder $200.00. One-half of the barn was on the land taken. For the barn to be useful it had to be moved and rebuilt, causing a damage of $300.00. When the highway was constructed the construction of a dam in the right-of-way ditch diverted the water onto the remaining land, damaging it $100.00. Building fences needed after the taking he estimated cost $450.00.

Dorsett testified: His home was on the north side of the road. On the land taken and 70 to 75 feet from his house, 6 oak trees had shaded his house. When these trees were removed his home had no shade. He used his lands for pasturing as well as growing timber. The road contractor took bulldozers and other equipment to knock down half of his barn on the land taken, damaging the structure of the other half to such an extent he had to rebuild it on the remainder of the land. 2800 feet of fencing on the two 20 foot strips was demolished by the contractor. To continue to use the remainder of the land for pasturing he had to build fences and a barn. The road as constructed caused flooding and erosion of part of his land. Culverts had to be built to have access to his home, pastures and barn.

Photographs showed the home of Dor-sett to be unattractive as a result of the above matters. The witness Carrington testified as to such elements of damage to the remainder in arriving at his values before and after the taking.

The jury was at liberty to reach its conclusion in answering the special issues by blending all of the evidence admitted before them, aided by their own experience and knowledge of the subject in inquiry. Viewing the evidence most favorable to the jury’s findings in answer to special issues Nos. 2 and 3, the evidence supports such findings. Appellant’s point of error contending the trial court erred in disregarding the findings of the jury to special issues Nos. 2 and 3 is sustained.

The judgment of the trial court is affirmed in part and reversed and rendered in part to the end that plaintiff, the State of Texas, do have and recover of and from C. B. Dorsett and wife the 2.543 acres of land taken for highway purposes and said Dorsetts are entitled to have and recover the sum of $890.00 therefor, and the Dor-setts are also entitled to recover the further sum of $800.01 from the State of .Texas by reason of damages to the remainder.


author: SHARPE, Justice.

text:
    Jeronimo SERNA and wife Ramona Serna, Appellants, v. Samuel P. REYNA, Sr., and Samuel P. Reyna, Jr., Appellees.
    No. 304.
    Court of Civil Appeals of Texas. Corpus Christi.
    Aug. 31, 1967.
    Dudley B. Foy, Jack E. A. White, of North, Blackmon & White, Corpus Christi, for appellants.
    J. Lev Hunt, of Kleberg, Mobley, Lockett & Weil, Corpus Christi, for appellees.
   SHARPE, Justice.

OPINION

This appeal is from a summary judgment rendered in favor of appellees, Samuel P. Reyna and Samuel P. Reyna, Jr., defendants below, that appellants, Jeronimo Serna and wife, Ramona Serna, plaintiffs below, take nothing by their suit. It appears that the correct name of Samuel P. Reyna, Sr. is Nicanor Reyna and he appeared under the last-mentioned name. No point is made concerning that matter on this appeal. We will sometimes refer to appellants as “Ser-na” and appellees as “Reyna”.

Plaintiffs’ petition herein alleged in substance that Serna and wife were injured in an automobile accident on April 11, 1965, when the vehicle of defendants, then being negligently driven by Samuel P. Reyna, Jr., collided with the vehicle in which plaintiffs were riding, causing them damages of $20,000.00. The instant cause was numbered 88272-D in the 105th Judicial District Court, Nueces County, Texas.

Appellees’ motion for summary judgment was based upon the proceedings had in cause No. 87183-D, 105th Judicial District Court, Nueces County, Texas, in which judgment was rendered on December 2, 1965, hereinafter referred to as “prior suit.” A certified copy of that judgment was attached to appellees’ motion for summary judgment in which they alleged that the claims now asserted by appellants as plaintiffs in the instant suit were based upon the same occurrence that was the subject matter of the prior suit in which Jeronimo Serna was sued as defendant; that the claim of Jeronimo Serna was a compulsory counterclaim in the prior suit under Rule 97(a) Texas Rules of Civil Procedure, and he there failed to assert the same; that the judgment in the prior suit should be construed as though such claims had been asserted; and that said prior judgment and the provision thereof that all other relief not specifically awarded therein was denied, was an adjudication that Jeronimo Serna take nothing and is a bar to the instant suit.

Appellants assert a single point of error, as follows:

“The Trial Court erred in sustaining the Appellees’ Motion for Summary Judgment because:
(a) The Judgment of Dismissal Without Prejudice in the prior action between the parties hereto is not a bar to Appellants’ present action on the theory of res ad-judicata;
(b) Appellants’ right to maintain this action is not barred by their failure to assert the same as a compulsory counterclaim in the prior action between Appellants and Appellees which was terminated by a Dismissal Without Prejudice; and
(c) The Judgment of Dismissal Without Prejudice which was entered in the prior action between Appellants and Appellees at the behest of Appellees bars the Ap-pellees from challenging the right of Appellants to maintain this action — both (a) on the grounds of res adjudicata, and (b) as a matter of public policy under which courts of justice do not permit a litigant to profit by taking inconsistent positions.”
Appellees’ reply point reads as follows:
“The trial court was correct in sustaining appellees’ motion for summary judgment because:
(a) Appellants were required to assert as a compulsory counterclaim in the prior lawsuit all claims they had against appel-lees arising out of the occurrence that was the subject matter of appellees’ claim in such prior lawsuit.
(b) The judgment in the prior lawsuit between the parties hereto adjudicated and denied the rights appellants seek to assert in this case.
(c) The judgment in the prior lawsuit does not bar appellees from challenging the right of appellants to maintain this action because (1) if such judgment is partially res judicata, as alleged by appellants, it is entirely and wholly res judicata, and (2) appellees have not taken an inconsistent position here, so no matter of public policy is involved.”

Appellees, as movants for the summary judgment, had the burden to establish that “there is no genuine issue as to any material fact and that the moving party was entitled to a judgment as a matter of law.” Rule 166-A, T.R.C.P. We have concluded that appellees did not sustain such burden and that the summary judgment should not have been granted for the reasons hereafter stated.

At the outset of the discussion we note that the only summary judgment evidence tendered by appellees in support of their motion was a certified copy of the judgment in the prior suit. Although a copy of plaintiffs’ original petition in the prior suit is included in the transcript herein, there is nothing to show that it was an exhibit before the trial court in connection with the instant summary judgment proceedings. In this situation we are confined to consideration of the judgment in the prior suit, and cannot take into account the pleadings therein. In Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961) the court held that although a trial court may take judicial notice of its own records in a cause involving the same subject matter between the same or practically the same parties, that, nevertheless, on motion for summary judgment, Rule 166-A(e) requires that certified copies of court records in a prior proceeding in the same court should be attached to the motion for summary judgment in the second case, and the failure of the movants there to do so precluded them from entitlement to summary judgment. See also, Butler v. Davy Crockett Federal Savings & Loan Ass’n, 363 S.W.2d 390 (Tex.Civ.App., Houston, 1962, wr. dism.).

The material portions of the prior judgment will be summarized or quoted. It first recited appearances of the six plaintiffs and the single defendant, Jeronimo Serna, in person and by counsel. The plaintiffs Lorenzo Trevino, Carlos V. Vasquez and Nicanor Reyna, appeared individually and as next friends for the minors Dora Trevino, Rudy Vasquez and Samuel Reyna. A guardian ad litem was appointed to represent the minor plaintiffs Dora Trevino and Rudy Vasquez, due to a recited conflict of interest between them and their fathers Lorenzo Trevino and Carlos V. Vasquez as next friends. There was no similar provision concerning Nican- or Reyna and Samuel Reyna. The prior judgment then provided as follows:

“ * * * and the parties having announced unto the Court that, subject to the approval of the Court, they have arrived at a settlement and adjustment of the controversies existing between them in this cause, under the terms of which settlement judgment should be rendered herein in favor of Lorenzo Trevino, individually, and against the defendant, Jeronimo Serna, in the sum of Three Hundred and Sixty Five ($365.00) Dollars ; and that judgment should be rendered herein in favor of Dora Trevino, a minor, and against the defendant, Jeroni-mo Serna, in the amount of Three Hundred Fifty Nine and 15/100 ($359.15) Dollars; and that judgment should be rendered herein in favor of Carlos V. Vasquez, individually, and against the defendant, Jeronimo Serna, in the amount of One Hundred Eighty Eight and 90/100 ($188.90) Dollars; and that Judgment should be rendered herein in favor of Rudy Vasquez, a minor, and against the defendant, Jeronimo Serna, in the amount of Four Hundred Sixty One and 10/100 ($461.10) Dollars; and, further, under the terms of said agreement it being agreed that the cause of action asserted herein by Nicanor Reyna, individually and in behalf of Samuel Reyna, a minor, should be dismissed without prejudice to the refiling of same; * * *”

The judgment then recited approval of the settlement and decreed in paragraphs numbered 2,3,4, and 5 that the plaintiffs Lorenzo Trevino, Dora Trevino, Carlos V. Vasquez and Rudy Vasquez recover from the defendants the respective amounts mentioned in the settlement agreement. Paragraphs 1 and 7 of the decretal portion of the judgment read as follows:

“1. That the cause of action asserted herein by Nicanor Reyna, individually and in behalf of Samuel Reyna, a minor, be and the same is hereby dismissed without prejudice to the refiling thereof;”
“7. That any and all other relief prayed for by any party to this cause, and not hereby specifically awarded be, and the same is hereby in all things denied.”

Reyna concedes that his rights against Serna were not adjudicated in the prior suit, being expressly reserved for future litigation. But he contends here that Serna was required to assert a compulsory counterclaim against him in the prior suit, and that the judgment therein adjudicated and denied the rights Serna asserts in this case.

Appellees, in support of their contention that appellants were required to assert as a compulsory counterclaim in the prior lawsuit all claims they had against appellees arising out of the occurrence which was the subject matter of appellees’ claim therein, rely upon the cases of Beach v. Runnels, 379 S.W.2d 684 (Tex.Civ.App., Dallas, 1964, wr. ref.); Stringer v. Munnell, 390 S.W.2d 484 (Tex.Civ.App., Houston, 1965, wr. ref.) ; Harris v. Jones, 404 S.W.2d 349 (Tex.Civ.App., Eastland, 1966, wr. ref.); Gautreaux v. City of Port Arthur, 406 S.W. 2d 531 (Tex.Civ.App., Beaumont, 1966, wr. ref., n. r. e.). Appellants agree that in the first three of these cases the compulsory counterclaim rule was correctly applied. Appellants also agree that Gautreaux was correctly decided under pertinent provisions of the Workmen’s Compensation Statute, but disagree with the holdings therein concerning the compulsory counterclaim rule.

We agree with appellants that these four cases are distinguishable. We will first consider the three cases {Beach, Stringer and Harris) in which writ of error was un-qualifiedly refused by the Supreme Court. In each of these cases the liability insurance carrier for the defendant in the first suit between the parties settled with the plaintiff therein without the knowledge and consent of the defendant. Thereafter, the defendant in the first case filed a second suit as plaintiff seeking to recover damages on account of the same automobile collision against defendants who had been plaintiffs in the first suit.

In Beach v. Runnels, supra, it appeared that an automobile driven by Beach collided with another driven by Runnels. Runnels sued Beach in Cause No. 49415 in the district court of Dallas County. Beach did not file a counterclaim. That suit was compromised and settled by the attorney for Beach’s insurance company, without the consent of Beach or his personal attorney and an order of dismissal was entered on May 31, 1960. On June 7, 1960 Beach sued Runnels in Cause No. 52,350 in the district court of Dallas County seeking damages growing out of the same collision involved in the first suit. The trial court granted Runnels’ motion for summary judgment on the ground that Beach’s claim against Runnels was barred as a compulsory counterclaim under Rule 97(a), T.R.C.P. On appeal, Beach’s sole point of error was that the trial court erred in such holding. The Court of Civil Appeals disagreed with Beach and affirmed the judgment of the trial court on the ground stated.

In Stringer v. Munnell, supra, it appeared that Munnell first sued Stringer for damages arising out of an automobile collision in the district court of Henderson County. Stringer did not assert a counterclaim. An agreed judgment was entered by which Munnell recovered substantial damages. This was accomplished by counsel for Stringer’s liability insurance carrier, without Stringer’s knowledge. Thereafter, Stringer sued Munnell in the district court of Harris County for damages arising out of the same accident, and the trial court granted Munnell’s motion for summary judgment based upon Rule 97(a), T.R.C.P. The Court of Civil Appeals affirmed, holding that there was no material difference between the facts there presented and those in Beach v. Runnels, supra.

In Harris v. Jones, supra, it appeared that Jones had first sued Harris in the district court of Dickens County for damages resulting from an automobile collision which occurred in that county. Although served with citation, Harris filed no answer or pleadings of any kind. A judgment of dismissal with prejudice was entered on September 27, 1961. Thereafter, on May 8, 1962, Harris sued Jones in the district court of Dickens County for damages arising out of the same collision and the trial court granted Jones’ motion for summary judgment. That motion was based upon contentions that Harris’ claim was a compulsory counterclaim under Rule 97(a), T.R.C.P., and therefore barred, and that Jones was entitled to judgment on the theory of res judicata or estoppel by judgment. The judgment did not indicate upon which theory the judgment for Jones was based. The Court of Civil Appeals affirmed on the ground that the cause of action asserted by Harris in the second suit was barred because it was a compulsory counterclaim in the prior suit under Rule 97(a), T.R.C.P. A copy of the judgment in the prior suit was attached as an exhibit to Jones’ motion for summary judgment and recited that all matters in controversy between the parties had been fully and finally settled. The judgment was agreed to by Mr. and Mrs. Jones, by their attorneys and by a law firm designated as attorneys for Harris. The sworn answer of Harris in reply to the motion for summary judgment stated among other things that he delivered the citation served on him in the prior suit to an agént for his liability insurance company; that the citation was then delivered to Burl Lynn, a claims adjuster for that company; that Lynn made a settlement of the prior law suit with Mr. and Mrs. Jones, and caused a judgment of dismissal with prejudice to be entered, all without Harris’ knowledge and consent, and despite the fact that Lynn was aware of Harris’ physical condition and injuries suffered in the collision and that Harris intended to file a law suit against the Joneses for his damages on account thereof.

In Beach, Stringer and Harris the plaintiffs’ claim in the first suit was compromised and settled. In Beach and Harris judgments of dismissal with prejudice were entered. The opinion in Harris reflects that the dismissal of Jones’ suit was with prejudice; and appellants have furnished a certified copy of the first judgment in Beach which shows that Runnels’ suit was also dismissed with prejudice. In Stringer, the judgment recited that the compromise settlement agreement “is in settlement of a disputed claim and that the defendants (Stringer) have and do deny liability for any damages to plaintiffs (Munnell), and that said compromise settlement was entered into to terminate further controversy between the parties.” In order for the instant case to be factually equivalent to Beach, Runnels and Harris, it would have to appear that Reyna (the plaintiff in the first case and defendant in the second) had settled his claim asserted in the first case. Of course, that does not so appear here, but on the contrary it is conclusively shown that Reyna’s cause of action was dismissed without prejudice so that he could litigate it at a later time if he so desired. In the three cases referred to, the cause of action of the plaintiff in the first action had been discharged by payment (made by the liability insurance carrier for the defendant) and was in effect adjudicated on the merits so as to bar any further action thereon. The above-cited cases do not stand for the proposition that the failure of a defendant to assert a compulsory counterclaim bars him from filing a subsequent suit to recover his damages where the plaintiff’s claim in the first suit is not settled nor adjudicated, as is the case here.

Reyna’s position here is largely based upon paragraphs 1 and 7 of the prior judgment, heretofore, set out in full. He says in substance that under said paragraph 1 only the cause of action asserted by Reyna was dismissed without prejudice, and that this provision does not apply to the cause of action of Serna. Reyna further says in substance that under said paragraph 7 relief as to Serna’s causes of action was in all things denied. By virtue of paragraph 1 of the decretal portion of the judgment Reyna’s cause of action against Serna was dismissed without prejudice. The effect of this provision was to dismiss Reyna as a party to the suit, leaving the claims of the other four plaintiffs against Serna to be adjudicated. There was then no law suit pending between Reyna and Serna. As to Serna there was then no cause of action being asserted against him by Reyna to which Serna could assert a counterclaim. Because of this, paragraph 7 of the decretal portion of the judgment denying other relief was therefore operative only between the four remaining plaintiffs and Serna, and not as between Serna and Reyna.

Appellants’ reliance upon Gautreaux v. City of Port Arthur, 406 S.W.2d 531 (Tex.Civ.App., Beaumont, 1966, wr. ref. n. r. e.) is also misplaced. In that case the City of Port Arthur, as a self-insurer carried Workmen’s Compensation insurance on its employee Mr. E. J. Gautreaux who was killed while in the course of his employment. His surviving wife and daughter had received or were entitled to receive death benefits under the Texas Workmen’s Compensation law of $4,500.00 each, payable $12.50 weekly. The City was by statute entitled to sub-rogation against third parties who were liable to Mrs. Gautreaux and her child for the death of Mr. Gautreaux, to the extent of Workmen’s Compensation benefits paid by it. Mrs. Gautreaux and daughter brought suit against Turner and Collie as well as the City of Port Arthur in cause No. A— 79825 for damages on account of the death of Mr. Gautreaux, but later moved for a nonsuit as to the City; and the trial court, on the day of trial, entered an order dismissing the suit against the City. After jury trial, the court rendered judgment for the Gautreauxs against Turner and Collie, which was reformed, as finally entered, so as to eliminate any recovery on account of the Workmen’s Compensation insurance payments and to require a remittitur in order to reduce the recovery to the extent that same was excessive. The remittitur was duly made and the ultimate recovery by the Gautreauxs was limited to damages in excess of the compensation paid to them by the City. Thereafter, the City filed suit against Turner and Collie and the Gau-treauxs in cause No. A-83518. The trial court, among other things, granted summary judgment in favor of the City against Turner and Collie for $9,000.00, representing the amount of the Workmen’s Compensation benefits, which the City had paid or was obligated to pay to the Gautreauxs. Only Turner and Collie appealed from the judgment. The Court of Civil Appeals reversed and rendered judgment that the City take nothing against Turner and Collie and otherwise affirmed the judgment of the trial court.

Although the Court of Civil Appeals sustained all of the contentions of Turner and Collie, it is clear that the essential and basic holding of the Court was that the City had failed to assert its subrogation claim in the manner authorized by Art. 8307, sec. 6a, Vernon’s Ann.Civ.St. The Court emphasized that the right of the Workmen’s Compensation carrier to be subrogated to the rights of the injured employee is purely statutory; and that under Art. 8307, sec. 6a, the City could have filed suit in the name of the legal beneficiaries of the deceased party or in its own name for the joint use and benefit of itself and said beneficiaries against Turner and Collie; but this was not done. The City did not file its subrogation claim in the prior case (A-79825) nor did it at any time after the dismissal file an intervention. Instead, the City stood by and allowed the Gautreauxs to enforce their claim against Turner and Collie, the third part tort-feasor, without the approval, authority or assistance of the City. Under these conditions, the Court of Civil Appeals correctly held that the City could not enforce its subrogation claim against Turner and Collie in the second suit.

Appellants argue that the judgment in Gautreaux can properly rest on the City’s failure to comply with the statutory method provided by our Workmen’s Compensation law (particularly Art. 8307, sec. 6a thereof) for enforcement of the City’s subrogation claim, without reference to the provisions of Rule 97(a), T.R.C.P. Appellants further point out that in the prior suit brought by the Gautreauxs, Turner and Collie was a co-defendant with the City and that company did not assert a claim against the City; that the claim of the City at that stage against Turner and Collie was at most only a right to be subrogated to the Gautreauxs’ cause of action against Turner and Collie, and, if anything, would have been a cross-claim against a co-defendant, which is not compulsory under Rule 97(e), T.R.C.P. Appellants also say that Gautreaux is not authoritative here because there the plaintiffs’ claim was fully adjudicated in the prior suit, which is not the case here as between Serna and Reyna. We believe that Gautreaux is distinguishable for the said reasons, and that the case is not authority for holding that Serna is barred from prosecuting the present action because of failure to file a compulsory counterclaim in the prior suit here involved.

We further hold that the judgment in the prior suit here was not a judgment on the merits as between Serna and Reyna, but was nothing more than a simple dismissal without prejudice. It was not res judicata as to Serna and Reyna. In Philipowski v. Spencer, 63 Tex. 604 (1885) the court said:

“In order that a former judgment should be a bar to any subsequent action for the same subject-matter between the same parties, it must appear that the suit in which it was rendered was determined on its merits. * * * ”

It is well settled that a judgment of dismissal without prejudice is not on the merits and will not operate as res judicata. Cass County v. Rambo, 135 Tex. 476, 143 S.W.2d 916 (1940); Peek v. Berry, 143 Tex. 294, 184 S.W.2d 272 (1944); Board of Water Engineers of Texas v. Colorado River Municipal Water Dist., 152 Tex. 77, 254 S.W. 2d 369 (1953); 34 Tex.Jur.2d Judgments, § 480, pages 534-536. In Crofts v. Court of Civil Appeals for Eighth Supreme Judicial District, 362 S.W.2d 101,104 (Tex.Sup. 1962) the court said:

“It is elementary that a dismissal is in no way an adjudication of the rights of the parties; it merely places the parties in the position that they were in before the court’s jurisdiction was invoked just as if the suit had never been brought.”

We sustain appellants’ point one (a) and (b). In view of such action we deem it unnecessary to discuss subdivision (c) of that point.

The judgment is reversed and the cause remanded for trial.