author: CALVERT, Chief Justice. SMITH, Justice

text:
    TRINITY RIVER AUTHORITY OF TEXAS and City of Houston, Relators, v. Waggoner CARR, Attorney General, Respondent.
    No. A-10448.
    Supreme Court of Texas.
    Jan. 20, 1965.

      Clark, Thomas, Harris, Denius & Winters, Austin, McCall, Parkhurst & Horton, Dallas, John Wildenthal, Jr., City A tty., Houston, Victor W. Bouldin, of Vinson, Elkins, Weems & Searls, Houston, Fulbright, Crooker, Freeman, Bates & Ja-worski, L. Keith Simmer and J. Wiley Caldwell, Houston, for relators.
    Waggoner Carr, Atty. Gen., Austin, Joe Long and James M. Strock, Asst. Attys. Gen., for respondent.
   CALVERT, Chief Justice.

In this original proceeding in this Court, Relators seek a w.rit of mandamus to require respondent to approve Trinity River Authority of Texas Interim Water Revenue Bonds (Livingston Project), Series 1964. The bonds are in denominations of $500,000 each and total $48,500,000. They are secured by and payable from a pledge of income to be received by the Authority from the City of Houston. The writ sought is issued conditionally.

Respondent offers two reasons for declining to approve the bonds; and, in addition, respondent presents nine objections raised by certain taxpayers in a suit filed in the 152nd Judicial District Court of Harris County, Texas, for consideration by this Court.

We will consider first the respondent’s reasons for refusing approval. They may be restated in our language as follows: (1) The statutory provision under which the Authority purported to act is so vague and uncertain in so far as it authorizes issuance of “interim bonds” that it is void, and the bonds do not meet the standards required by other statutory provisions relating to the issuance of. “interim bonds”; and (2) the bonds cannot be approved as other than “interim bonds” because they contain the word “interim” in their title and thus would be misleading.

Trinity River Authority of Texas is a conservation and reclamation district created in 1955 by an act of the Legislature. See Acts 54th Leg., p. 1314, ch. 518, shown in Vernon’s Texas Civil Statutes as Art. 8280-188. Sec. 8 of the statute confers power on the Authority to issue bonds and places certain limitations on the power.

Sec. 8(a) provides that the Authority may issue negotiable bonds of three general classes, as follows: (1) Bonds secured by ad valorem taxes, when voted. (2) Bonds secured solely by a pledge of net revenues accruing to the Authority. (3) Bonds secured by a combination pledge of net revenues and taxes.

Sec. 8(c) provides that “Bonds of the Authority shall be authorized by resolution adopted by the Board [of Directors]. * * * shall mature serially or otherwise within such period and at such times as may be prescribed in the resolution, not exceeding a maximum of fifty (50) years. * * * provided that the interest cost to the Authority * * * does not exceed six per cent (6%) per annum, * * * and within the discretion of the Board may be made callable prior to maturity at such times and prices as may be prescribed in a resolution authorizing the bonds.”

Sec. 8(j) reads: “Pending the issuance of definitive bonds the Board may authorize the delivery of negotiable interim bonds or notes, eligible for exchange or substitution, by use of definitive bonds.” This is the only provision in the statute dealing expressly with “interim bonds.” Sec. 8(k) authorizes issuance of refunding bonds.

The bonds which respondent has declined to approve were ordered issued by a resolution of the Board of Directors on October 16, 1964. They are dated October 15, 1964, mature on October 15, 1996, bear interest for the first year at the rate of 3}4% and thereafter at the rate of 4%, and are redeemable at any time on thirty days’ notice.

Respondent does not question that the bonds are well within the limitations of Sec. 8(c), inasmuch as they mature in less than fifty years and bear interest at a rate less than 6%. But respondent argues that the limitations provided in Sec. 8(c) are not applicable to “interim bonds”; that if they were applicable there would be no distinction between “interim bonds” and the bonds authorized in Sec. 8(a); that the word “interim” means “meanwhile” or “in the meantime,” and in enacting Sec. 8(j) the Legislature intended to provide for the issuance of “temporary” bonds for which it provided no standards or limitations in Art. 8280-188; that if the power to issue “interim .bonds” is to be upheld, they must meet the standards and be within the limitations prescribed for “interim bonds” in Art. 7880-84a, Vernon’s Texas Civil Statutes.

Art. 7880-84a is contained in Chapter 3A of Title 128 of our statutes and deals exclusively with water control and improvement districts and water improvement districts. It authorizes boards of directors of such districts “to declare an existing emergency in the matter of funds not being available” for certain necessary expenses, and authorizes the issuance of “interim bonds,” after construction bonds have been voted, to obtain emergency loans. The principal limitations placed on the issuance of such bonds are (1) that they must mature not later than ten years from date of issue, and (2) the principal amount of the-issue may not exceed 25% of the principal, amount of the bonds of the district which: have been voted, but not sold. It is apparent that the bonds in question here do. not comply with the first limitation.

There is undoubtedly a reasonable basis, in the language of Sec. 8(j) for the position of the respondent that the Legislature intended to differentiate between permanent or final bonds and “interim bonds” to be issued by the Authority. We note again the language of Sec. 8(j) : “Pending the-issuance of definitive bonds the Board may authorize the delivery of negotiable interim bondSj or notes, eligible for exchange or-substitution, by use of definitive bonds.” The language contrasts “definitive bonds” with “interim bonds,” and authorizes the-exchange or substitution of “definitive bonds” for “interim bonds.” According to Webster’s Third New International Dictionary, the word “definitive” has a variety of meanings, and is said to be a synonym of “conclusive” and to be contrasted with, “provisional.” The word is sometimes used in referring to judgments as “definitive-judgments,” and as so used is interpreted to mean “final judgments.” See 11 Words, and Phrases, p. 606; 26A C.J.S., p. 146. Considering the respective meanings of the ■ words “interim” and “definitive,” it is clear-that the Legislature intended to authorize-the Authority to issue two types of bonds,, temporary and permanent or final.

Having thus agreed to some extent with the premise of respondent, we Are yet not prepared to accept his conclusions that because the Legislature failed in Art. 8280-188 expressly to prescribe outside limits of amount and term for which “interim bonds” could be issued, less than those for which “definitive bonds” could be issued, Sec. 8(j) must be held void for 'vagueness or the limits prescribed in Art. 7880-84a must be read into it. We know of no good reason why the Legislature could not empower the Authority to issue “interim bonds” in amounts and for terms within the limitations provided for definitive bonds; and this, apparently, is what the Legislature did. When the Legislature provided a maximum term of fifty years and a maximum rate of interest for “bonds •of the Authority” in Sec. 8(c), it provided limitations for all bonds of the Authority, whether tax bonds, revenue bonds, combination revenue and tax bonds, definitive bonds or interim bonds. When Art. 8280-188 is thus interpreted, there is no need to read into it legislative provisions expressly limiting the amount and term of interim bonds to be issued by other types of water ■districts. When it is thus interpreted, use •of the word “interim” in the title of the bonds does not mislead prospective pur•chasers; rather, it serves a useful purpose in that it gives notice that the Authority intends later to issue and substitute definitive bonds and that the interim bonds are to be left outstanding only in the meantime, only temporarily. That the bonds are in fact “interim bonds” is confirmed by the issuing resolution of the Board of Directors ■which recites that “interim bonds with an early option of redemption should now be issued with the view to issuing permanent bonds in lieu thereof when such permanent bonds can be most advantageously marketed.”

Security for the $48,500,000 bond issue rests in a contract entered into between Trinity River Authority of Texas and the City of Houston. The contract contains detailed provisions covering many areas of agreement As pertinent and relevant here, the Authority agrees to supply to the City and the City agrees to take 70% of the water yield of the Livingston Reservoir and the Salt Water Barrier Projects, when constructed, for its own use and the use of the customers of its distribution system; and the City agrees to pay to the Authority from the revenues of its water system an amount equal to the amount of the Authority’s bonds and interest thereon as the same become due. The contract was authorized on behalf of the City by the qualified electors thereof by an affirmative vote of 49,-114 to a negative vote of 11,256, and on behalf of the Authority by a resolution of its Board of Directors.

The nine taxpayer objections brought into this case by respondent relate to the validity of the foregoing contract. The nine obj ections are as follows:

(a) That the contract has not been authorized to be executed by the Trinity River Authority of Texas and by the City of Houston in the manner required by Article 1109e, Vernon’s Texas Civil Statutes.
(b) That the City has not complied with Article II, Section 7b of the City Charter in authorizing the contract.
(c) That the contract attempts illegally to delegate the authority of the Mayor and City Council to persons not subject to election by voters of Houston.
(d) That the contract attempts to lend the credit of the City of Houston to Trinity River Authority and attempts to grant public money or other things of value to Trinity River Authority, contrary to Article III, Sections 51-52 of the Constitution of Texas.
(e) That the contract is lacking in mutuality.
(f) That the proposed dam and reservoir to be constructed under the contract is not located in the City of Houston or Harris County, but in other counties and in another watershed.
(g) That the contract is so vague and ambiguous as to be incapable of performance.
(h) That the quantity of water which will be available from the proposed reservoir is uncertain.
(i) That the contract obligates the Trinity River Authority to perform functions outside its boundaries contrary to Article 8280-188, Sections 29 and 31.

None of the questions raised by the listed objections are briefed by respondent. They do not constitute reasons why he has declined to approve the bonds. In his letter declining to approve the bonds he gives only the two reasons set out in the beginning of this opinion. With respect to the nine listed objections, his letter states:

“3. Two citizens of the City of Houston have raised the following additional questions as to the validity of the aforementioned contract entered into between the City and the Authority on September 2, 1964, which forms the basis of the security for the proposed bonds. These questions were raised in a lawsuit styled Wallace W. Franks, et al., v. Louie Welch, the City of Houston, et al., No. 656,660, filed October 21, 1964, in the 152nd Judicial District Court of Harris County, Texas, to-wit: [The objections are listed here as set out above.]”

The letter then continues:

“We are advised that the 152nd District Court of Harris County, Texas granted the defendants’ Motion for Summary Judgment in the above cause on November 10, 1964, and are of the opinion that the questions raised in paragraph three of this letter are without merit. Nevertheless, the questions have been raised and we will not approve the bonds under these circumstances.”

The letter clearly discloses that respondent has not declined to approve the bonds because he believes they are invalid for any of the reasons stated in the nine objections. On the contrary, he states that in his opinion the nine objections “are without merit.” Respondent does not suggest in his answer to the petition for writ of mandamus that the objections state valid reasons for declining to approve the bonds. He states only that “Unless the foregoing questions are resolved by this Court in this action, or until the case now in litigation in Harris County is finally resolved, the Attorney General cannot approve the bonds.”

The ultimate effect of respondent’s position is that he will not approve the bonds as long as litigation questioning their validity is pending, however unmeritorious the litigation may be. Thus it seems that if is the fact that the litigation is pending which constitutes his reason for revising his approval. If that had been stated as his only reason, a writ of mandamus would under no circumstances have been issued to require his approval of the bonds. As the matter stands, we simply decline to consider and decide the questions raised by the nine objections.

This Court cannot embark upon a policy of deciding issues in pending litigation in a proceeding of this character. If it is to be done in this case, then every issuer of bonds hereafter is entitled to have it done for it. If suit is filed in a trial court questioning the validity of bonds, the issuer will have the same right as the relators in this proceeding to have the litigation terminated by using the office of the Attorney General. The long established practice of the Attorney General to refuse to approve bonds as long as litigation questioning their validity is pending would have come to an end, and, in its stead, a practice instituted of having the Attorney General decline approval because objections have been made in pending litigation which this Court will be asked to adjudicate even though the Attorney General is unwilling to adopt the substance of the objections as reasons for disapproval.

We realize that relators have been delayed in the achievement of their common objectives by pending litigation, and that their disposition to chafe at further delay is but natural. Others have stood in their shoes. In the normal course of things, most issuers of municipal bonds regard their quick sale as imperative so that the proceeds may be available to finance some public improvement deemed urgently needed. But the original jurisdiction of this Court to issue writs of mandamus to the Attorney General is not to be invoked or exercised to oust the jurisdiction of the trial courts and Courts of Civil Appeals to decide the issues in pending litigation. As to such issues, the process of trial and appeal is, in law, an adequate remedy. Our original mandamus jurisdiction is to be invoked and exercised only to settle those issues of bond validity which are not involved in pending litigation and which are raised by the Attorney General.

We decide only the questions raised by respondent in his reasons for refusing to approve the bonds; and finding them to be without merit, we order the issuance of a writ of mandamus to require approval unless he approves the bonds or declines approval because of pending litigation.

SMITH, Justice

(dissenting).

I do not disagree with the Court’s holding on the question raised by the Respondent, the Attorney General of Texas. However, I do disagree with the action of the Court in deciding the questions when it is obvious that this Court is without jurisdiction to issue a writ of mandamus. In view of the record in this case, I would deny the writ of mandamus. By taking this course the Court would be following sound legal precedent.

      . AH Ardele references are to Vernon’s Texas Civil Statutes.

      . Emphasis ours throughout.


source: Caselaw Access Project

author: BELCHER, Commissioner. DICE, Commissioner.

license: Public Domain

text:
    James W. NICHOLS, Appellant, v. The STATE of Texas, Appellee.
    No. 37288.
    Court of Criminal Appeals of Texas.
    Nov. 25, 1964.
    Rehearing Denied Jan. 20, 1965.
    Second Motion for Rehearing Denied March 3, 1965.

      Mac L. Bennett, Jr., W. T. Bennett, Huntsville, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The appellant was convicted of wilfully killing one head of cattle of over the value of $50 by shooting the said one head of cattle with a gun with the intent to injure-the owner; and his punishment was assessed at three years.

The alleged injured party, Harold Trant, testified that a 450 pound Hereford-type calf of over the value of $100, which he owned, was found dead in a pasture about seventy-five yards from the road; that the calf had several bullet holes in the-body; and that he did not give anyone permission to shoot the calf.

The tracing of a license number of an-automobile, which was driven back and forth several times on the road by the Trant pasture on the afternoon of January 30, showed that it belonged to the appellant. The license number was obtained by a person living near the Trant pasture.

The written statement of the appellant made to the Sheriff of Brazos County pertaining to the shooting of a calf was introduced by the state without objection. Omitting the formal parts the statement reads as follows:

“On Wednesday the 30th of January, 1963 James Heath came to Joes Number two and asked me to take him and Henry L. Maddox hunting and I agreed to do it. James and I went to the Maddox residence and picked up Henry Maddox.
“We first .went out on the Tabor road, set up a couple of beer caps and shot at them for target practice, we then decided to go over into Grimes County hunting. We were looking for a deer to shoot, we saw some but did not get a shot, we drove on down the road and saw a calf near the road. We stopped and I shot the calf, which was a red and white faced calf. James Heath and Henry Maddox got out of the car and went over to see about it. When they got near it it jumped up and ran off. James and Henry got back into the car, we drove up the road a couple of miles, turned around and headed back the same road. We saw another calf standing near the road and I shot and killed it. This calf was about a quarter mile from where I shot the first one.”
“James and Henry got out of the car and go see about this calf that I had killed and I drove down the road a short distance then went back. James and Henry said the calf was too heavy to move so we left it there and came back to Bryan.
“When we first got over there in Grimes County we bought some .22 shells, these were the shells used to kill the calf.”

The two persons, James Heath and Henry L. Maddox, mentioned by name in the written statement of the appellant as shown above, testified for the state, and each testified that he was fifteen years of age. The testimony of each corroborates, in substance, the facts as related by the appellant in his statement set out herein.

The appellant did not testify but called several witnesses who attested to his good reputation. On cross-examination he sought' to show by the witnesses Heath and Maddox that he was so drunk at the time the calf was shot that he did not know what occurred; and that Maddox who was present when appellant made the written statement furnished most of the facts contained in the statement.

It is contended that this cause should be reversed and dismissed on the ground that the portion of Art. 1373-a, Vernon’s Ann.P.C., under which the appellant was convicted (killing one head of cattle with intent to injure the owner thereof) is unconstitutional for the reason that the caption of said article does not provide for and give notice of the inclusion of killing cattle of another with the intent to injure the owner thereof, and thereby violates Art. 3, Sec. 35 of the Texas Constitution, Vernon’s Ann. St.

The caption of said bill, and the applicable provisions of the bill are as follows:

“An Act to amend Article 1373 Penal Code of 1925, and amend Chapter 3 of Title 17 of the Penal Code of the State of Texas, 1925 revision, by adding a new Article numbered 1373 — a, providing for punishment for killing certain animals or scattering and depositing poison in certain places thereby killing or injuring certain animals; providing the penalty therefor; and declaring an emergency.”
“Be it enacted by the Legislature of the State of Texas:
“That Article 1373 of the Penal Code of the State of Texas be amended so as to hereafter read as follows:
“‘Article 1373.
“ ‘Section 1. Whoever shall wilfully maim, wound or disfigure any horse, ass, mule, cattle, sheep, goat, swine, dog or other domesticated animal, or whoever shall wilfully kill, maim, wound, poison, or disfigure any dog, domesticated bird or fowl of another with intent to injure the owner thereof, shall be fined not less than Ten Dollars ($10) nor more than Two Hundred Dollars ($200). In prosecutions under this Article the intent to injure may be presumed from the perpetration of the act.’
“Sec. 2. That Chapter 3 of Title 17 of the Penal Code of the State of Texas, 1925 revision, be amended by adding thereto a new Article, to- be known as Article 1373 — a, as follows:
“ ‘Article 1373 — a.
“ ‘Whoever shall wilfully kill any horse, ass, mule, cattle, sheep, goat or swine of another, or whoever shall wilfully scatter or deposit poison on the lands owned or in possession of another, with intent to injure the owner thereof, or on any open range, public road or highway or other public area, and by so scattering or depositing poison kills or injures any horse, ass, mule, cattle, sheep, goat or swine of another, shall be punished as follows :
“1. If the value of the animal or animals killed, or the injury to the animal or animals poisoned as above set out, but not killed, is Fifty Dollars ($50) or over the punishment shall be confinement in the penitentiary for not less than two (2) nor more than ten (10) years.”'

It is appellant’s position that the provision “with intent to injure the owner” in said article is not expressed within said caption or in any manner provided for, and that it violates and is in contravention of Art. 3, Sec. 35 of the Texas Constitution.

The caption of the act gives notice to the public and the legislature that the purpose of the enactment was to amend Article 1373 and to amend Chapter 3 of Title 17 by adding a new article and provide punishment for the offense of killing certain animals.

In providing a penalty for the offense of killing animals, it appears that notice was reasonably given that the “intent to injure the owner” would be included within the scope of the act, as it was in Art. 1373 prior to the amending act. Therefore the caption of the amendatory act was sufficiently broad to authorize the enactment, and does not offend Sec. 35 of Art. 3 of the Texas Constitution.

Appellant contends that the trial court erred in failing to charge on the offense of theft and appropriation as applicable to such offense, and to instruct the jury that if appellant was guilty of theft or if they had a reasonable doubt thereof to find him not guilty of the offense charged in this cause.

The fact that the testimony relied upon to show the offense charged also developed facts which constitute another independent crime does not prevent the conviction for the offense on trial. Fuentes v. State, 163 Tex.Cr.R. 410, 292 S.W.2d 117; Jefferson v. State, Tex.Cr.App., 364 S.W.2d 227.

Error is urged in the submission of this cause to the jury on the ground that Art. 1373-a P.C., provides no punishment for killing one head of cattle by shooting it with a gun with the intent to injure the owner, and that it is so indefinitely framed as to be wholly inoperative.

An examination of the statutory provisions above set out reveals that the act charged is definitely and sufficiently defined as an offense with a definite penalty prescribed and affixed thereto, and is operative.

It is contended that the trial court erred in failing to instruct the jury in connection with the definition of the term “wilful”; that the act charged must have been done with intent to injure the alleged owner; that the court again erred in failing to define “legal malice” and also the phrase “for believing the act to be lawful,” and allowed the jury to place its own construction thereon.

The definition, as given, reads:

“The term ‘wilful’ means with evil intent or with legal malice, or without reasonable grounds for believing the act to be lawful.”

This definition is in accord with that given in submitting similar offenses to the jury. No error is perceived. 4 Branch 2nd, 800, Sec. 2492, and cases cited.

In consideration of the evidence, together with the provision of the statute that the “intent to injure may be presumed from the perpetration of the act,” it is concluded that the evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant insists that we were in error in overruling his contention that the trial court erred in failing to define the offense of ordinary theft (Art. 1410, Vernon’s Ann.P.C.) in his charge, and instruct the jury that if they believed from the evidence that he was guilty of theft, as defined, or, if they had a reasonable doubt thereof, to acquit him of the offense charged.

In addition to the authorities cited in our original opinion, reference is made to the well-established rule that under the doctrine of carving the state may carve and prosecute for any offense it may elect which grows out of the same transaction. 1 Branch’s Ann.P.C.2d 625, Sec. 654; Martinez v. State, 165 Tex.Cr.R. 244, 306 S. W.2d 131; Shannon v. State, 170 Tex.Cr. R. 91, 338 S.W.2d 462; Lewis v. State, 171 Tex.Cr.R. 231, 346 S.W.2d 608. Under such doctrine, the state had the right to elect and prosecute appellant under Art. 1373-a, supra, for killing the one head of cattle.

Appellant also challenges the conclusion reached in our original opinion that the evidence is sufficient to support the conviction under Art. 1373-a, supra, and insists that in the absence of any evidence of animosity, hatred, or ill-feeling between him and the owner of the calf there is no proof that he killed the animal with intent to injure the owner. Appellant insists that we were in error in referring to the statutory presumption contained in Art. 1373, supra, that “the intent to injure may be presumed from the perpetration of the act” because the conviction is under Art. 1373-a, supra, which contains no such provision. The early case of Newton v. State, 3 Tex. App. 245, is relied upon by appellant, where it was held that in a malicious-mischief prosecution for wilfully killing an animal the intent to injure the owner could not be presumed from the mere act of killing.

While appellant is correct that Art. 1373-a, supra, does not expressly provide for the presumption contained in Art. 1373, supra, we conclude that such a presumption does obtain in a prosecution under Art. 1373-a, supra. Clearly, it was the intention of the legislature in enacting Art. 1373, supra, that in malicious-mischief prosecutions under Chapter 3 of Title 17 of the Penal Code, for wilfully killing certain domesticated animals, the intent to injure may be presumed from the perpetration of the act. Such was the law when Chapter 3 of Title 17 of the code was amended by the legislature in 1945 by adding Art. 1373-a, supra, as a new article, making it a penal offense to kill certain domesticated animals.

Newton v. State, supra, cited by appellant, is not here controlling, because the case was decided prior to change of the malicious-mischief statute (Art. 1373, supra) by providing that the intent to injure the owner may be presumed from the perpetration of the act.

The evidence shows that appellant intentionally shot the calf without any legal justification or excuse. Such act, under the facts presented, could have been with nothing other than evil intent to injure the owner of the animal.

The evidence is amply sufficient to support a finding that appellant’s act was with the intent to injure the owner of the animal.

Remaining convinced that a proper disposition was made of the case on original submission, the motion for rehearing is overruled.

Opinion approved by the Court.


author: WOODLEY, Judge.

text:
    Gussie Lee THOMAS, Appellant, v. The STATE of Texas, Appellee.
    No. 37760.
    Court of Criminal Appeals of Texas.
    Feb. 17, 1965.
    No attorney of record on appeal, for appellant.
    Henry Wade, Dist. Atty., James H. Miller and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is burglary; the punishment, enhanced by two prior convictions for felony theft, life.

The record contains no statement of facts.

Two formal bills of exception found in the record were not filed within 90 days after notice of appeal, as required by Art. 760d Vernon’s Ann.C.C.P., hence they cannot be considered.

The proceedings appear to be regular and nothing is presented for review.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    David S. HAUGER, Appellant, v. The STATE of Texas, Appellee.
    No. 37823.
    Court of Criminal Appeals of Texas.
    Feb. 17, 1965.

      No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is a conviction for passing a worthless check, with punishment assessed at three days in jail and a fine of $50.

Notice of appeal was given on September 14, 1964. The recognizance appearing in the record was entered into by the appellant on September 12, 1964.

The recognizance entered into before an appeal was taken is insufficient to confer jurisdiction upon this court. Arts. 827 and 830, Vernon’s Ann.C.C.P.; Hallman v. State, 113 Tex.Cr.R. 100, 18 S.W.2d 652; Selestino v. State, Tex.Cr.App., 342 S.W. 2d 328.

The appeal is dismissed.

Opinion approved by the court.


author: McDONALD, Presiding Judge.

text:
    John Louis SPIKES, Appellant, v. The STATE of Texas, Appellee.
    No. 37766.
    Court of Criminal Appeals of Texas.
    Feb. 17, 1965.
    No attorney of record on appeal for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Bohn Phillips, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

Appellant was convicted of the offense of knowingly, intentionally, and with lascivious intent exposing his private parts and genital organs tO' a female person under 16 years of age. The punishment assessed by the jury was 15 years confinement in the state penitentiary.

The 13 year old complaining witness testified that about a block from her house, while she was walking to the store, she saw the appellant seated in his automobile with the door open. As she approached, appellant beckoned to her and exhibited to her his exposed private parts, which he was playing with. When she returned from the store, the appellant parked his automobile partially on the sidewalk, close to her home; and again beckoned to her and exposed his private parts to her view. She went into her home, and her sister, age 14, and some younger children went out into the yard. The older sister testified that the appellant then exhibited his exposed private parts to her. The children’s parents soon summoned police officers who were on a street nearby, and the appellant was arrested a short distance from the place where the offense occurred.

We find the evidence sufficient to süstain the jury’s verdict. Appellant’s counsel has not favored us with a brief.

There are no formal bills of exception brought forward with the record. The only informal bill contained in the record is an objection to the action of the Court in oven-ruling appellant’s motion for an instructed verdict because of his contention that the evidence is insufficient. We find no error in the ruling of the trial court on appellant’s motion.

No exceptions nor objections were lev-elled at the court’s charge. No request was made for a special charge to the jury.

Finding no error, the judgment is affirmed.


text:
    Jewel VENTERS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 37574-37577.
    Court of Criminal Appeals of Texas.
    Jan. 13, 1965.
    Rehearing Denied March 3, 1965.
    No attorney of record on appeal for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and James I. Smith, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The appellant waived a jury and pleaded guilty to the offense of forgery as charged in the above causes, and his punishment was assessed at three years in each case. The court not having cumulated the sentences, they are concurrent and authorize appellant’s confinement in the State Department of Corrections for a term of not less than two years nor more than three years. Art. 774, C.C.P.

The statement of facts reveals that appellant forged the name of James Papadokis to four American Express Company checks, each in the sum of $100. He passed two of them to Montgomery Ward and attempted to pass the other two.

The appellant so testified and his voluntary statement in which he confessed to having done so was introduced, as were the checks described in the respective indictments and the testimony of witnesses at the examining trial stipulated by appellant and his counsel and by the District Attorney as true.

The proceedings appear to be regular and in compliance with Arts. 10a and 12, Vernon’s Ann.C.C.P. relating to pleas of guilty before the court in non-capital felony cases.

The judgments are affirmed.


text:
    Jerry WATSON, Appellant, v. The STATE of Texas, Appellee.
    No. 37613.
    Court of Criminal Appeals of Texas.
    Jan. 20, 1965.
    Rehearing Denied March 3, 1965.
    Gladden & Cook, Dan W. Lane, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Jack Beach, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is aggravated assault; the punishment, one year in jail.

The state’s testimony reflects that appellant was employed as a “press hand” at the Oil States Rubber Company at Arlington, Texas. His immediate supervisor was John W. Ritchie. On January 24, 1964, Ritchie explained to appellant that some of his production was not good. Appellant replied that he didn’t have time, and that he did not care. Ritchie then told appellant that if he had lost interest in his work that he would have to take further steps in the matter, to which appellant retorted, “Well then just go ahead and fire me. Just go ahead and fire me.” After discussing the appellant’s attitude with his supervisor, Mr. J. R. Long, and the plant supervisor, Mr. Jerry Matthews, Ritchie returned to the press where appellant was working. Upon being told that he woud be let go appellant asked, “Do you mean I’m fired?” Ritchie replied, “Yes, that’s right.” Appellant then reached across the table where he was working and picked up an iron bar, stepped back and hit Ritchie on the chin with it, fracturing his jaw in two places and knocking out four teeth. Ritchie missed two weeks work as a result of these injuries. Shortly after hitting Ritchie, appellant threw his work gloves into Mr. J. R. Long’s face and was heard to exclaim, “I have been waiting for this chance a long time.” To another inquiry as to what had occurred, he replied, ‘T knocked the hell out of him with a tire tool”.

Appellant offered no testimony nor did he testify in his own behalf. He urges two contentions as error. Both are objections to the court’s charge. Appellant complains of the court’s failure to grant his requested charge defining “premeditated design”. There were no written objections to the court’s charge. Such question is not properly before this Court for review because no formal bill presents the matter and appellant failed to except to the action of the court in 'refusing the tendered charge. Smith v. State, 166 Tex.Cr.R. 294, 313 S. W.2d 291.

We do, however, observe that the court defined “premeditated” in an acceptable manner in his charge even though this was unnecessary under the holding of this Court in Mitchell v. State, Tex.Cr.App., 365 S.W. 2d 804.

Also, though not properly before us for review, we observe that the court did not err in failing to charge on simple assault. In Jones v. State, 170 Tex.Cr.R. 581, 342 S.W.2d 585, we held that there was no necessity for the court to charge on simple assault unless there was some doubt that the greater offense had been committed. We have concluded that the facts before us here would not require a charge on simple assault.

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


author: BELCHER, Commissioner.

text:
    Bill CAUBLE, Appellant, v. The STATE of Texas, Appellee.
    No. 37752.
    Court of Criminal Appeals of Texas.
    Feb. 17, 1965.
    Joe R. Carroll, (on appeal only), Snyder, for appellant.
    Wayland G. Holt, Dist. Atty., Snyder, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for forgery with two prior convictions for forgery alleged for enhancement; the punishment, life.

Edwin Isabell, while testifying, identified the appellant as being the same person who passed a check to him on May 10, 1964, in the sum of $25, payable to Billy Cauble, signed Mrs. W. H. Cauble, as maker, endorsed by Billy Cauble, and drawn on the Snyder National Bank. The witness Isa-bell identified á check at the trial as the same check passed to him by the appellant, who endorsed it in his presence, and for which he gave the appellant $23 in money and gasoline of the value of $2. Said check was then introduced in evidence.

Mrs. W. H. Cauble testified that she did not sign or authorize anyone to sign her name to said check.

Proof was introduced of the prior forgery convictions as alleged and of the identity of the appellant as the same person convicted therefor.

The appellant did not testify but called D. W. Hargrove, the owner of the service station where the appellant passed to Isa-bell the $25 check while Hargrove was absent. Hargrove testified that on May 9, the appellant passed to him a check drawn the same as the $25 check except it was for $15; that appellant never wrote out the check but only endorsed it in his presence; and that the appellant told him he would pay the checks when he got out of jail but after he got out he never did. The $15 check was introduced in evidence,

Appellant insists that the evidence wholly fails to prove that the appellant did, in fact, make the $25 check upon which the state relied for a conviction. He urges that the state proved only that Mrs. W. H. Cauble did not sign or authorize anyone to sign her name to the check, and that the check was passed to Edwin Isabell by Bill Cauble.

The $25 and $15 checks were the only checks introduced in evidence.

On re-cross examination of Hazel Bing-ham, appellant’s sister, she testified in part as follows:

“Q: Do you recognize the handwriting on this check?
“A: That is Billy Cauble’s handwriting.”

If it was the $15 check that Hazel Bing-ham testified was in appellant’s handwriting instead of the $25 check, then the $15 check was before the jury as being in the handwriting of the appellant. Both Hargrove and Isabell testified that the appellant endorsed the two checks, respectively, in their presence. Hence the endorsements were known specimens of appellant’s handwriting.

The appellant did not invoke the provisions of Art. 731, C.C.P., by denying under oath the making of the $25 check.

The possession of the check by the appellant and its endorsement in person by him, with the later promise to the holder to pay it, in connection with the known speci-, mens of his. handwriting on the checks, was sufficient to warrant the conviction and supports the jury’s verdict.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Leport WALTON, Appellant, v. The STATE of Texas, Appellee.
    No. 37673.
    Court of Criminal Appeals of Texas.
    Feb. 17, 1965.

      Saunders & Tunnell, Tyler, for appellant.
    W. E. Coats, Jr., Dist. Atty., R. S. Bur-russ, Asst. Dist. Atty., Tyler, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder; the punishment, five years.

The disposition hereof makes a summary of all the facts unnecessary.

In justification of said killing the appellant introduced and relied upon evidence that he acted in self-defense. Frank Lawson, testifying as a witness for the appellant, on direct examination stated that he was present at the scene of the homicide before and at the time it occurred; that an argument arose between a woman employed by the appellant in the club and the wife of the deceased, and the appellant approached the deceased and his wife, saying “I don’t want that in here. If you do, you all get out.” Lawson further testified that at this time the deceased moved toward the appellant with his hand in his pocket saying “I been wantin’ to kill you anyhow,” and the appellant with his hands up was moving backwards saying, “Don’t come upon me; get back.” While he (Lawson) was going to the door, he heard a shot from a gun but he did not see the gun or know how the appellant got the gun with which he shot the deceased. On cross-examination of the witness Lawson, counsel for the state exhibited to him in the presence and hearing of the jury a written statement, which the witness admitted that he had given to the assistant state’s attorney, and had signed and sworn to it before a notary public. Also, in the presence and hearing of the jury state’s counsel proceeded to read portions of the statement and asked the witness if he had not made such statements. Certain portions of the written statement, as read, differed materially from some of his testimony given before the jury. The witness also denied making certain other portions of the statement which were read to him by counsel for the state in the presence of the jury.

The facts contained in numerous portions of the written statement, as read to the witness during his examination in the presence of the jury, were material to the issues in the case.

The written statement was not introduced in evidence. Counsel for the appellant properly and timely requested the court to instruct the state’s attorney to permit him to examine the written statement. The motion was refused by the court.

In Sewell v. State, Tex.Cr.App., 367 S.W.2d 349, this court said:

“Reversal will result, however, without any showing of injury for denial of the defendant’s timely request or demand that he be permitted to inspect any document, instrument or statement which is used in some way before the jury by which its contents becomes an issue, such as used by the witness to refresh his memory (Jackson v. State, 166 Tex.Cr.R. 348, 314 S.W.2d 97; Green v. State, 53 Tex.Cr.R. 490, 110 S.W.2d 920, 22 L.R.A.,N.S., 706; Palacio v. State, 164 Tex.Cr.R. 460, 301 S.W.2d 166); or exhibited or read from or used to question the witness in the jury’s presence (Board v. State, 122 Tex.Cr.R. 487, 56 S.W.2d 464; Bailey v. State, Tex.Cr.App., 365 S.W. 2d 170 (photograph exhibited before the jury).”

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

Opinion approved by the Court.


author: MORRISON, Judge. WOODLEY, Judge

text:
    Leport WALTON, Appellant, v. The STATE of Texas, Appellee.
    No. 37784.
    Court of Criminal Appeals of Texas.
    Feb. 17, 1965.
    Saunders & Tunnell, Tyler, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is possession of wine and whiskey in a dry area for the purpose of sale; the punishment, six months in jail and a fine of $500.00.

The witness Shields, a former employee of the Texas Department of Public Safety, testified that on the day charged in the information, as he was driving his patrol car outside the city limits, he observed two automobiles parked on a dirt road, that he stopped and observed Jack Lacy close the trunk of a Chrysler automobile, asked him where the driver of the other automobile was and was informed that he had gone off across the field. He stated that he looked over “a little bank” and observed the appellant “squatted there in the brush” and subsequently found a large quantity of beer, wine and whiskey near the place where appellant was apprehended. No intoxicants were found in appellant’s automobile, but a quantity was found in the automobile driven by Lacy. Shields observed fresh tracks in the damp earth leading from Lacy’s automobile to where the intoxicants were found. The intoxicants were labeled by the officers with Jack Lacy’s name and it was further shown that Lacy had plead guilty to the possession of the same intoxicants.

The only serious question presented is the failure of the court to grant appellant’s requested charge on circumstantial evidence.

Judge Hawkins in Peters v. State, 142 Tex.Cr.R. 146, 151 S.W.2d 592, stated the rule covering the necessity for giving the charge on circumstantial evidence as follows :

“ * * * where the evidence shows an opportunity or equal opportunity of another or others to possess the liquors charged to have been possessed by the accused, the State’s case, to be sufficient to convict upon circumstantial evidence must disprove such outstanding hypothesis. Such rule is complied with, however, when the facts show that such other person or persons exercised no control over, or possession of, the liquors, and had no opportunity to do so.”

The cases most nearly in point as to the necessity for giving the charge are Wynn v. State, 159 Tex.Cr.R. 300, 263 S.W.2d 566, and Williams v. State, Tex.Cr.App., 263 S.W.2d 776. These are companion cases and we will quote the facts set out in Wynn, supra:

“Appellant was seen to drive an automobile ‘behind the house’ and back up and drive off. One Williams was in the automobile with him. Some thirty minutes later, the same parties in the same automobile, with appellant driving, were seen to pull into the driveway. The two officers then approached the house from the rear. Williams got out of the automobile, went to the rear door of the south apartment, and was in the act of unlocking the door when the officers appeared. The officers told Wiliams to unlock the door, which he did. The apartment was vacant and unoccupied. A large quantity of beer and whisky was found in the bathroom thereof.
“There was evidence that Williams’s license to drive an automobile was, at that time, suspended. Other than a showing by the circumstances of possession by Williams of a skeleton key, there is no testimony suggesting who was in possession of the house. There is no testimony as to who was the actual owner of the house. There is an absence of any testimony identifying the ownership of the automobile in which the parties were riding.”

It is significant to point out that Williams’ case was also reversed for the same reason without setting forth the facts by a unanimous opinion of this Court.

“Tracks” standing alone are not sufficient to convict. Cayton v. State, 160 Tex.Cr.R. 31, 267 S.W.2d 143, and Garrett v. State, Tex.Cr.App., 366 S.W.2d 584.

Wynn and Williams, supra, require the giving of the requested charge and call for a reversal of this conviction.

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

WOODLEY, Judge

(dissenting).

Appellant’s contention that the evidence is insufficient to support a finding that appellant exercised any care, custody or control of the wine and whisky, and his contention that he was entitled to a charge on circumstantial evidence are bottomed upon the premise that Jack Lacy was present and could have had exclusive possession of the wine and whisky.

State’s witness Shields testified in part:

“I was driving down a road, and I saw two cars parked on this little side road, dirt road, and I drove up there, and there was a gentleman standing behind one of the cars with the trunk lid up. I drove up in front of his car and stopped mine, got out of the car and started to walk back there, and when I did, this gentleman closed the trunk lid. I walked up and started talking to him and asked him where the driver of the other car was. At that time he told me he had run off across the field, and there was bushes and a little bank there, and I stepped up on that bank, and when I looked over the bank is when I saw Leport squatted there in the brush.”
“When I first saw him, he was squatted down in some weeds and brush, bushes.
“Q. How close was this to the road?
“A. Approximately thirty-five feet.
******
“Q. What, if anything, did you see in the area immediately adjacent to the defendant at the time you first saw him ?
“A. When I saw him squatted down there, I got him to get up, and I started looking around, and I found some liquor, wine and beer stacked out there in the brush.
“Q. How far was this from the defendant?
“A. Part of it was about six feet from him.
******
“Q. All right, sir. What, if anything, did you see in the area adjacent to the defendant, anything else?
“A. There was some wine in that general area that was in the brush.
“Q. Approximately how far would you say it was situated from where you first saw the defendant?
“A. It was about twenty or twenty-five feet from him.
“Q. Do you recall how much it was?
“A. Not the exact amount.
“Q. Would you say it was a small quantity or a considerable quantity?
“A. It would be a considerable quantity.”
******
On cross- examination he testified:
‘Q. Now, you have testified that there was a gentleman standing with the trunk lid up. Now, who was that?
‘A. Jack Lacy.
‘Q. And that you never saw Leport any closer than six feet to some whisky, you said, and twenty or twenty-five feet from the remainder of the whisky that you found?
A. That’s where I found him hiding.
'Q. How far did you say it was from the whisky or beer which you have testified about?
A. Whisky, about six feet.
* * * * * *
‘Q. There wasn’t anyone exercising any control in your presence over that whisky, was there?
A. Yes, sir; they were there loading it into the car.
* * * * * *
iq * * * There was no one exercising any control or management or possession of this whisky in your presence, was there?
A. They never did pick it up after I got there * * *.
'Q. All right.
A. * * * because he could hear us talking there, and he was hiding there
‘Q. All right.
A. * * * but you could see the trail where they had been walking back and forth, carrying that to the car.
‘Q. You just presume that that’s what happened. You don’t know that, do you, Mr. Shields?
A. I wasn’t standing there watching them carry it to the car.
“Q. So you don’t know what the little trail was used for then, do you?
“A. Yes, sir; you could tell.
“Q. How do you know?
■“A. Because it had rained the night before, and there were fresh tracks.
“Q. I see.
“A, Some was found in the car, and the stash was found across the bank.”

The state’s proof constituted direct evidence that appellant and Lacy jointly possessed the wine and whisky and there is no evidence to raise the hypothesis that Lacy had exclusive possession of the liquor, part of which was in the car and part at the other end of the trail where appellant was hiding.

I respectfully dissent.


text:
    Booker T. JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 37768.
    Court of Criminal Appeals of Texas.
    Feb. 17, 1965.
    Alfred J. Jackson, Jr., Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Grady Hight, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is murder; the punishment, twenty-five years.

Appellant and the deceased, although not legally married, lived together as husband and wife and operated a cafe in the city of Fort Worth.

The state’s evidence shows that on the day of the homicide the deceased opened the cafe around 5 p. m. In a short time appellant came in the front door, sat down at a booth, and had a conversation with the deceased, who was standing behind a counter checking the cash register. In the conversation, appellant asked the deceased why she did not come home the night before and after she replied that she had worked all night he inquired as to the whereabouts of his gun. When told that it was where he had left it, appellant proceeded to reach under the booth and get a double-barrel shotgun. He then loaded the gun and, after laying it down, walked around behind the bar, picked up the deceased’s purse, and returned to the booth. When the deceased referred to appellant’s drinking and his staying out all night, appellant picked up the shotgun, walked around the corner of the bar, and fired a shot at the deceased, who was still standing behind the cash register. The deceased then ran for the front door and another shot was fired. After the shooting, the deceased was lying in the front doorway with two fatal shotgun wounds in her body, one being in the left side of her head and the other in the center of her back. •

J. A. Strickland, an eyewitness to the shooting, called as a witness by the state, testified that when appellant fired the first shot, the deceased was standing behind the cash register and was making no movement toward a pistol which he had seen lying on the counter near her. He further testified that before the shooting he did not hear the deceased threaten to kill the appellant.

Following his arrest, appellant, after being duly warned, made and signed a written statement in which he admitted firing the two shots which killed the deceased.

In the statement which was introduced in evidence by the state without objection, appellant stated in part, as follows:

“I Booker T. Johnson, went to Minnie’s Bar, 11 53 Evans Ave_, at approximately 5:00 PM, 2-15-64, as I wanted to see if Minnie Johnson, my common-law wife, had come into the place of business as she had not come home, 604 Missouri, the night before, as she normally does. Upon seeing her at Minnie’s Bar, I asked her why she did not come home the night before. She replied that she was off somewhere and did not answer where she had been. After asking her this question we had an argument, and I got my shotgun, cocked the hammer back and shot her. * * * I know she was hit but I do not know where I hit her with the shots. * * * I fired at her twice with the shotgun.
* * * * * *
“I also know that Minnie had a .38 caliber snub-nosed pistol which she usually keeps in her purse. * * * I knew her purse was under the counter and I kept her cut off from the area where her purse was. * * * She had no chance to get her purse.”

Testifying in his own behalf, appellant repudiated certain incriminating portions of his written statement and swore that he was acting in self-defense when he shot and killed the deceased. Appellant testified that before he fired the fatal shots the deceased had said to him: “ ‘I’m going to shoot you,’ ” and that he shot the deceased after she had removed a pistol from her purse and had “started up with it.”

The jury by their verdict rejected appellant’s plea of self-defense, which was submitted to them in the court’s charge.

The record contains no formal bills of exception or objections to the court’s charge.

Appellant’s sole contention on appeal is that the evidence is insufficient to sustain the judgment of conviction. This contention we overrule.

The judgment is affirmed.

Opinion approved by the court.


author: MORRISON, Judge.

text:
    Ronald Charles COBB, Appellant, v. The STATE of Texas, Appellee.
    No. 37572.
    Court of Criminal Appeals of Texas.
    Jan. 13, 1965.
    Rehearing Denied March 3, 1965.

      Robert B. Maloney, Pat McDowell, Dallas, for appellant.
    Henry Wade, District Attorney, Frank Watts, W. P. Bondies, Jr. and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment, 99 years.

The homicide occurred at the home of the deceased, a single man. Only he and three of his companions were present, appellant being one of them, and we will summarize the testimony of each of them. Linda Davis, the 18 year old sister of David Davis, testified that she, her brother and appellant went to the deceased’s house on foot on the night in question for the purpose of listening to hi-fi records, that shortly after their arrival the three men left to get some beer, and that she was left there to take any telephone calls for the deceased, who was an X-Ray technician on call at a hospital. She stated that while the men were away a call did come for deceased and upon their return she notified deceased and he left. During his absence appellant stated that he was going to get deceased’s money when he came back. Upon his return, she and appellant, who was her then intended fiancé, were in the bedroom on the bed and her brother, David, was in the living room listening to records. Shortly thereafter she asked appellant to get her a cigarette and within a few moments after appellant went into the living room she heard a scream or moaning noise coming from the living room and upon entering she saw deceased prone on the floor and appellant standing over him. She became frightened, called to her brother to get her purse and ran out the back door. Some distance from the house she was overtaken by her brother, David, and together they fled for a number of blocks until they were overtaken by appellant who was driving deceased’s automobile and who demanded that they enter the car. She complied because of her fear of appellant and he drove her home, and appellant and her brother, David, left.

David Davis, age 20, testified that he had known the deceased only two days and that during his absence from the house on his call to the hospital appellant had suggested that they take deceased’s money upon his return. He stated that while deceased was away he and appellant engaged in some horse play with two butcher knives which they had found in deceased’s kitchen while looking for a beer opener, and at the termination of the sword play he put his butcher knife down, but that appellant put the one he had been using in his right hip pocket. He stated that upon deceased’s return from the hospital he was seated on a couch some distance from the record player and he asked the deceased to change the records. As deceased was in the act of doing so and while leaning over the machine appellant came from the bedroom, approached deceased from the rear, pushed deceased’s head forward with his left hand and at the same time drove the butcher knife into deceased’s stomach. He stated that he responded to his sister’s plea to get her purse and ran after her. After he and his sister were overtaken by appellant, who was driving deceased’s automobile, some ten blocks away from deceased’s house, they drove to his house, let his sister, Linda, out, and he accompanied appellant in his flight. During the course of such flight, appellant gave him some money which he placed among some newspapers on the floor board where it was found by the highway patrol when they stopped the automobile near Decatur, some 60 miles to the north.

It will be unnecessary to recount the means by which the two were captured or the proof as to the cause of death because of appellant’s testimony. His testimony was substantially the same as the two preceding witnesses except that he denied having voiced any plans to take deceased’s money and gave the following version of the homicide. He stated that he met deceased two nights before the night in question, had spent the night with him alone in his home upon the night of their meeting during which time he had repulsed deceased’s homosexual advances. As to the night in question he stated that after deceased’s return from the hospital and when he came out of the bedroom deceased had made some disparaging remarks about Linda which made him mad, whereupon he drew the butcher knife from his pocket “and I thrust it at him, and just not to hurt him, but at that time he turned around (from the record player) to take a step forward to me, and I didn’t have any time to drop the knife or stop the motion of the knife before * * * it killed him.” He admitted rifling deceased’s pockets, securing deceased’s billfold and money which were recovered from his person by the highway patrol at Decatur.

The jury resolved appellant’s alleged defense of accident against him, and we find the evidence sufficient to support the conviction.

Appellant objected to the court’s charge on accident in that it was limited in accordance with the terms of Article 42, Vernon’s Ann.P.C., which eliminates accident as a defense when a homicide is committed while in the act of preparing to commit a felony. He contends that the evidence did not warrant the submission of such an issue.

We find no error in the Court’s charge on accident, because the record reflects that both witnesses Linda and David Davis testified of appellant’s declared intention to get the deceased’s money when he returned to the house, that the appellant did not discard the butcher knife previously used by him in sword fighting, but that he placed it in his back pocket and that such a knife was drawn from his pocket and used by him to stab deceased. It was further shown, and appellant admitted, that after the stabbing he did take the money and certain other effects from the body of the deceased and fled the scene. The charge is substantially the same as that set forth in Cook v. State, Tex.Cr.App., 211 S.W.2d 224, which has been cited with approval by this Court.

He next contends that the court erred in not declaring a mistrial when the prosecutor, in discussing the credibility of the appellant, who had a long criminal record, as opposed to that of David Davis said “David Davis had never been to the penitentiary,” which fact he says was not supported by the record. There is an unexplainable conflict between the formal and informal bill of exception on this question. In one it is shown that the court sustained appellant’s objection and instructed the jury not to consider the statement, while in the other it is shown that the court overruled the objection. Both show that appellant made no motion to have the jury instructed not to consider the same. Be that as it may, we conclude that no reversible error is reflected for the following reasons. David Davis testified that he had been no billed by the grand jury for the offense of murder, that he had been indicted for robbery, but had not been tried for such latter offense. The prosecutor had, prior to making the statement complained of, argued without objection as follows: “There is no evidence in here that David Earl Davis is not a credible witness, and you can bet your bottom dollar that if he had ever been convicted of stealing, they would have brought it out.” Such argument, under the circumstances, would not constitute reversible error. Vineyard v. State, 96 Tex.Cr.R. 401, 257 S.W. 548.

Finding no reversible error, the judgment is affirmed.


text:
    James Daniel THOMPSON, Appellant, v. The STATE of Texas, Appellee.
    No. 37759.
    Court of Criminal Appeals of Texas.
    Feb. 17, 1965.
    Alfred J. Jackson, Jr., Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Grady Hight and R. J. Adcock, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for felony theft with two prior convictions for felonies less than capital alleged for enhancement; the punishment, life.

Zelvin Ethley testified that he parked his 1955 Oldsmobile on a street in Fort Worth. Soon thereafter, Ethley returned to the place where he had parked the Oldsmobile, discovered that it was missing, and then notified the police, giving them the description and license number. He testified that he did not give anyone his consent to take the Oldsmobile.

Shortly after Ethley discovered that his Oldsmobile was missing, the appellant was seen in it near the house of R. C. Britt. The appellant, who was alone in the automobile, asked Britt to assist him in starting the motor, which he did, and Britt followed as the appellant drove the Oldsmobile into a service station. The motor failed again and Britt declined to help appellant start it. At this time he asked to see appellant’s driver’s license, and appellant replied that he did not have it. After Britt refused appellant’s request that he (Britt) take him to another place, the appellant walked away from the station.

While testifying, the operator of the service station identified the appellant as the person who wanted him to start an Oldsmobile which the witness Britt had pushed into his station. When the station operator told him to try to start it, the appellant said he did not have a key, and that “you will have to jiggle something under the hood there to start it.” Then the station operator told the appellant he would have to get a key. In a short time the appellant left the car in the driveway and walked away.

While Officer Durant, who had determined that the Oldsmobile was stolen, was obtaining the description of the man driving it, the appellant returned to the station and was taken into custody.

The testimony reveals that the Oldsmobile was of the value of more than fifty dollars at the time it was taken from the owner.

Proof was introduced of the prior felony convictions as alleged and of the identity of the appellant as the same person so convicted. Also, said convictions were admitted by the appellant, while testifying.

Testifying in his own behalf, the appellant stated that he was drunk at the times here in question, and that he could not remember anything when drunk; that he had never seen Britt or the station operator be-for the trial; that he never drove the Oldsmobile, as he had not driven an automobile since 1951. The appellant further testified that he and a friend were walking by the station on their way to a store to purchase some wine when the officer arrested him. Further, the appellant admitted the prior convictions, as alleged.

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

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

Opinion approved by the Court.


author: RENFRO, Justice.

text:
    J. T. ARNETT et al., Appellants, v. Laura Marie THOMAS et vir, Appellees.
    No. 16596.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 22, 1965.

      Kelly, Morris, Walker & Maynard, and Jearl Walker, Fort Worth, for appellants.
    Stark & Davey and Ken R. Davey, Gainesville, for appellees.
   RENFRO, Justice.

This is a venue case.

A car driven by Mrs. Thomas was in a collision with a truck owned by defendant Arnett, d/b/a Arnett Trucking- Co., and driven by defendant Dickerson. The accident occurred in Denton County. Both defendants filed pleas of privilege to have the case transferred to Navarro County, their residence.

The trial court overruled the pleas of privilege and filed findings of fact convicting Dickerson of several specific acts of negligence.

The defendants appealed, urging that no negligence and proximate cause were proved

Only Dickerson testified as to the collision. He testified: He was traveling north on Interstate 35. It was snowing and the highway was covered with snow. He was driving a thirty-five foot, two tandem, Mack Diesel truck. He was traveling about 40 miles per hour, at 11:30 P.M., when he saw the Thomas car traveling in the same direction at 18 miles per hour. The highway was divided with two main lanes of traffic for northbound traffic. The Thomas car was in its proper right-hand lane. He, too, was in the right-hand lane. He came up behind her, “warned her and passed.” He blinked his lights and honked his horn. He was fully in the left lane when the collision occurred. As he passed, “she curved over to me * * * Because I was against the curb in the left lane and didn’t get out of it.” His tractor was already past her when the collision occurred. The impact occurred on his right front tractor wheel. He went back and looked at the place of impact. His truck had rubbed the snow off of the curb to his left. The Thomas car curved to the right after the impact but came to rest in the median strip between the southbound lane and the northbound lane. “I knew (the lane) * * * that I was in and at the time it happened where I was at also.” He was asked, “Could you see absolutely the place that this happened?” and answered, “Yes, sir.” The Thomas car traveled an estimated 150 feet and his truck 250 feet. The Thomas car was damaged on the front and rear left fenders. His tractor was five or six feet past the Thomas car when the collision occurred.

In our opinion the evidence merely shows that a collision occurred. The court could, of course, disbelieve all or any part of Dickerson’s testimony, but there was none to the contrary.

The evidence fails to show that the accident was a result of any negligent act with resultant proximate cause on the part of Dickerson.

It is apparent the case was not fully developed.

If the Court of Civil Appeals determines that the judgment of the trial court in a venue case is unsupported by the evidence, or that the evidence in support thereof is insufficient, its judgment should be one of remand and not of rendition, unless it appears that the facts were fully developed at the trial appealed from. Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458 (1948); Lanford v. Smith, 128 Tex. 373, 99 S.W.2d 593 (1936).

Reversed and remanded.


author: BELL, Chief Justice.

text:
    Evelyn BURSON, a feme sole, Appellant, v. Thomas O. MONTGOMERY et ux., Appellees.
    No. 14479.
    Court of Civil Appeals of Texas. Houston.
    Jan. 28, 1965.
    Bonham, Stanley & Campbell, Felix M. Stanley, Houston, for appellant

      Stein, Bennett & Shepley, Ralph O. Shep-ley, Houston, for appellees.
   BELL, Chief Justice.

This is a child custody case. The trial court, basing- its action on a jury verdict, entered judgment awarding custody of five year old Belinda Toro to appellees. Appellant is the maternal grandmother of the minor. Mr. and Mrs. Montgomery, the ap-pellees, are persons who were keeping the child pursuant to the consent and permission of her father. The mother of the child is deceased.

The case is here without a statement of facts and any recital of fact is based on allegations in appellant’s petition.

Appellant filed suit against William S. Toro, the child’s father, and the appellees as defendants. She alleges that the mother, who was divorced from the father, had custody of the child by virtue of a court judgment, when she died in August, 1963. She then alleges that Belinda, after her mother’s death, was removed to the home of appellees where she was at the time suit was filed. It was asserted that the father had failed and refused to assume responsibility to support or take care of the child, though the court had ordered him to provide support. It was alleged he was an unfit parent. It was further alleged he had permitted the appellees to have possession of the child and to carry on the responsibility of providing a home, care and support for the child. The appellees were strangers to the child prior to the mother’s death. There was no family relation between the child and appel-lees. Plaintiff alleged she was denied any visitation with the child. It should be especially noted that at no place is there any pleading in any way attacking the fitness of appellees. The prayer is that appellant be given custody of the child subject to rights of visitation in the father.

The appellees and the father filed a joint answer. It consisted of a plea of res judicata, special exceptions, and a general denial. The prayer was that plaintiff take nothing and the defendants go hence with their costs. We need not notice in detail the plea of res judicata since it has no effect on this appeal. We note, however, that it was disposed of by the court apparently as a dilatory plea and was not involved in the trial before the jury. A plea of res judicata is not a dilatory plea but is one in bar and should be handled as such. The plea was overruled by the court.

On trial to a jury the court submitted three issues. The first one asked whether the father was an unfit person to have care, custody and control. The jury answered he was. The second issue asked if the best interest of the child would be served by having custody awarded to appellant. The jury answered it would not. The third issue asked if the best interest of the child would be served by awarding custody to ap-pellees. The jury answered that it would.

Appellant objected to the submission of the third issue because there was no pleading by appellees asking that custody be awarded them. The position of appellant is that since Article 4639a, Vernon’s Ann. Tex.St., gives the right of a jury trial and makes the jury determination on custody binding on the court, the Rules of Civil Procedure governing submission of issues to the jury govern as in any civil case. Rule 279, Texas Rules of Civil Procedure, of course, provides that a party who has pled only a general denial shall not be entitled to the affirmative submission of an issue of his own.

The appellees’ position is that the District Court has always had broad powers to determine what is for the best interest of a child and that strict rules of pleading applicable in other actions are not applicable in child custody cases. They say the only real effect of Article 4639a, as amended, is to give right of trial by jury and to make the jury’s determination as to what is for the best interest of the child binding on the court, if there is evidence to support it, whereas before the amendment a jury verdict -was purely advisory. Here the court’s judgment followed the jury determination as to custody in compliance with Article 4639a.

We are of the view that when a suit is filed seeking custody of a child, the issue is affirmatively raised as to which of the parties to the suit will, by being given custody of the child, best serve the interest and welfare of the child. The real party at interest in such a case is not one of the named plaintiffs or defendants but is the child. None of them have any property right in custody and none of them have a personal right to custody except as it is determined their custody will best serve the interest and welfare of the child. Probably it is more accurate to say that none of the named parties have any personal or property right to custody but that the child, a real though undesignated party to the suit, has the right to be given to the party to the suit who can best serve its interest and welfare. What a court or a jury is really deciding, once its jurisdiction is invoked, is the right of the child.

We have found no case dealing with whether the amendment to Article 4639a giving the right of trial by jury and making the jury’s finding binding on the court requires that there be affirmative pleading by a party specifically asking for. custody. The statute itself purports to do nothing except to give the right of trial by jury and to make the jury’s determination as to what will best serve the interest of the child binding on the court, if there is evidence of probative force to support the determination. While we have found no case directly in point, we are convinced that the decided cases establish the principles we have stated and as applied to the facts before us the issue was affirmatively raised as to who among the named parties to the suit could, as custodian, best serve the interest and welfare of the child. Being thus raised, the trial court correctly submitted Special Issue No. 3.

The cases we will now discuss show that the courts have not been strict in application of rules of pleading and procedure applicable to ordinary civil suits in child custody cases.

In the case of Legate v. Legate, 87 Tex. 248, 28 S.W. 281, the court had before it, among other things, the question as to whether a writ of habeas corpus merely raised the question of whether the child was illegally restrained or whether under an application for such a writ the court, having obtained jurisdiction, could determine who of the parties to the suit could as custodian best serve the interest of the child. It was urged that such a writ merely gave rise to the issue as to whether the child was illegally restrained and the issue as to who should be given custody by a determination of what was for the best interest and welfare of the child was not raised. The court held that the application for such a writ effectively invoked the jurisdiction of the court to determine who of the parties to the suit would as custodian best serve the interest and welfare of the child. The court in its opinion said:

“The writ of habeas corpus has long been resorted to as the proper proceeding in order to determine whether a minor is unlawfully restrained of his liberty; and when, by means of such writ, a minor of such tender years as to be lacking in discretion has been brought before the court, it has not only inquired into and relieved against the unlawful restraint, if any, but has, in addition, or perhaps as a necessary incident, determined to whom the custody of the minor rightfully belonged.”

The court then proceeded to discuss the rights of persons to custody. In the particular case the parents were seeking to get the child from persons to whom they had surrendered it for adoption. The court held the issue involved was what would best serve the interest and welfare of the child and that even a parent had no property right to custody though the court recognized the interest and welfare of the child would normally best be served by being in the custody of the parent. However, the real right to be determined was not that of the parties to the suit but the right of the child to be in the custody of such party as would best serve its interest and welfare. The court said:

“It (the law) does not, however, recognize in him (the parent) any property interest in his child, * * * The one most vitally interested, however, in its custody during the formative period of its character, is * * * —the child itself.”

In the case of Green v. Green, Tex.Civ. App., 146 S.W. 567, writ dism., a mother sought a temporary injunction requiring her husband to return her daughter and that he be restrained from moving the boys out of Lubbock County. The petition did not ask for a divorce though it showed she intended to amend asking for divorce. The injunction was granted. The defendant contended the court had power to determine custody only in a divorce case or by way of a writ of habeas corpus. The court, in holding to the contrary, said:

“We think the case of Ex parte Reeves, 100 Tex. 617, 103 S.W. 478, ample authority for the proposition that a pleading, which shows upon its face that the welfare of a minor child requires that an order be made by a district court or a judge thereof, is amply sufficient to warrant the court ■or such judge in making such order as * * * may appear right and proper for the welfare of the child.
“While a minor child is not ‘property’ within the ordinary meaning of that term, nor is the right to its custody based upon any property right, its welfare has always been of such paramount importance, both to it and society, as to require at the hands of some branch of government a supervisory control, * * * ”

In the case of Williams v. Perry, Tex. Com.App., 58 S.W.2d 31, the Commission of Appeals had before it a case in which the father had applied for a writ of habeas corpus against the maternal grandmother to obtain custody of his children. The grandmother filed an answer. The father demurred to the answer because it showed the defendant relation to the child was only as grandmother and not as legal guardian, and also on the ground it failed to allege any legal right to possession by defendant by gift or consent, and that it failed to allege any disqualification in the father. The trial court overruled the demurrer and after hearing granted custody to the grandmother. The Court of Civil Appeals and the Commission of Appeals affirmed. The Commission of Appeals, in sustaining the trial court’s action in overruling the demurrer, said:

“This is a habeas corpus proceeding conducted by a district judge * * * for the purpose of determining the care and custody of two children of tender years. In such a case, pleading is of little importance * * * In other words, the rule is that the powers of the judge are liberally construed * * * Under this rule, the district judge is not bound by any technical rules of pleading, but has a right to hear the full facts and act in the light thereof.”

In the case of Tunnell v. Reeves, Tex. Com.App., 35 S.W.2d 707, the mother of a child applied for a writ of habeas corpus against Mr. and Mrs. Tunnell, her uncle and aunt, to recover her child. After hearing the trial court awarded custody to the Tun-nells. The Court of Civil Appeals reversed and one ground of reversal was the absence of pleading by the Tunnells to put in issue the disqualification of the mother, Mrs. Reeves, for the proper discharge of her duties. The Commission of Appeals, in reversing the Court of Civil Appeals and affirming the judgment of the trial court, :said:

“As shown by the record this is a habeas corpus proceedings instituted :by Mrs. Clara Reeves and husband against H. H. Tunnell and wife for the •custody of her minor child. The paramount question for the trial judge to •decide was: Under all circumstances 'how could the best interest of the child Tbe promoted and protected?
«* * *
“It is true that a habeas corpus pro•ceeding in this state is defined under established rules as a civil action. It is also true that the trial court is to pass upon the main question for decision as to what is the best interest •of the child itself. It is a question of fact, and we think that all of the issues incident to and connected with this •question are and should be subordinate. The decision of the court should be reached upon hearing of all the evidence tending to shed any light upon the •question. In our judgment it is more a matter of evidence than a matter of pleading.”

In the case of Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79, the Supreme Court of Texas had before it a case in which a mother had custody of a child as a result of a judgment rendered in a divorce suit. She died and the child was taken by the Knollhoffs to their home in Lamb County. Their relation to the child was not shown "by the record, but they had possession of it. Of course, on the death of the mother the legal custody vested in the father. He filed an application for writ of habeas corpus in the district court of Pecos County to recover possession of the child. The Knollhoffs filed a plea of privilege to be sued in Lamb County. The court overruled the plea. On appeal the Court of Civil Appeals Justices were divided on the question of whether the proceeding was a civil suit involving custody. The Court of Civil Appeals certified questions to the Supreme Court, 250 S.W.2d 434. The first was whether the habeas corpus proceeding raised the question between the parties of custody and possession so as to be a civil action within the meaning of the venue statutes. The second was whether the Knollhoffs under the proceeding initiated by an application for writ of habeas corpus were adverse parties. The Supreme Court answered both questions in the affirmative. The Court said in part:

“One cannot invoke the jurisdiction of the court to deal with the personal status or the person of a child and at the same time deny the power of the court, in that proceeding, to do with the child’s person or his status whatever appears to the court to be for the best interest of the child. The petitioner having brought the child before the court could not by the nature of his pleading limit the constitutional jurisdiction of the court to deal in fullest measure with the child’s person or status. In other words, the proceeding to obtain physical possession of the child automatically invoked the power of the court to adjudicate custody, and was, therefore, a suit involving custody as well as possession.”

In holding the Knollhoffs were adverse parties, the court noticed the allegations of the father stating they had taken the child, had continued to hold possession and were refusing to deliver the child to him. The court said:

“This very recitation shows indisputably that Norris recognized that the Knollhoffs were denying his right to the possession or continued custody of the child and were asserting an adverse right thereto. * * * He therefore knew that when so commanded the Knollhoffs would have the right to appear and contest his right to possession and continued custody of the child, with the ancillary right to file whatever pleadings they deemed appropriate, including the plea of privilege.”

In the case of Finney v. Walker, Tex. Civ.App., 144 S.W. 679, no writ hist., a plea of privilege case growing out of an application for writ of habeas corpus by a father, the court said, in quoting from another case: “It is a civil action in which the only matter to be ascertained is, Who is entitled to the custody of the infant?”

We are not unaware that the cited cases were decided at a time when the judge and not the jury made the determination as to what was for the best interest of the child. However, the proceeding then was an equity proceeding and it remains so now modified to the extent that a jury determination of whose custody will best serve the interest and welfare of the child requiring the court to render judgment in conformity with the verdict if it is supported by evidence of probative force. The court now as then is exercising its equity jurisdiction.

We hold, therefore, when appellant sued for custody of Belinda and alleged that she was in possession of the appellees who were furnishing her care and support, and appellees filed a denial of appellant’s asserted right of custody, the issue was affirmatively raised as to which of the parties to the suit would, as custodian, best serve the interest of the child. The parties to such a suit under such pleadings are each asserting not that he in his own right is entitled to custody, but rather that the child has a right to be in his custody because it will best serve the interest and welfare of the child.

The appellant has urged points of error that require an examination of a statement of facts. There is no statement of facts. In the absence of such, we cannot appraise them. We must presume there was sufficient evidence to support the answers of the jury.

The judgment of the trial court is affirmed.


author: PRESLAR, Justice.

text:
    R. E. (Bob) BAILEY, in his capacity as Sheriff, et al., Appellants, v. Habous NACIM, Appellee.
    No. 5714.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 20, 1965.
    Rehearing Denied Feb. 10, 1965.
    Gerald B. Shifrin, Jack Fant, County Atty., El Paso, for appellants.
    Mitchell Esper, El Paso, for appellee.
   PRESLAR, Justice.

This is an appeal from a temporary inr junction order against the appellants by which they are restrained and enjoined from proceeding with an execution sale of certain property of appellee to satisfy a money judgment.

Appellant American Finance and Investment Company placed an $11,829.92 judgment (which it had previously obtained against appellee) in the hands of R. E. (Bob) Bailey, Sheriff of El Paso County, for execution and the Sheriff levied on the property of appellee and advertised such property for sale under execution. Ap-pellee brought suit to enjoin the sale for the alleged reason that the property was exempt from forced sale as her homestead. In granting the temporary injunction, the injunction bond required and given was in the sum of $1,000.00.

Appellants contend that the injunction is to restrain the execution of a money judgment or the collection of a debt within the meaning of Rule 684, Texas Rules of Civil Procedure, and that the $1,000.00 bond is insufficient to support the injunction, which is therefore void. The pertinent part of Rule 684 provides:

* * * If the injunction be applied for to restrain the execution of a money judgment or the collection of a debt, the bond shall be fixed in the amount of such judgment or debt, plus a reasonable amount to cover interest and costs.”

This allegation of insufficiency of the injunction bond is the sole point of error asserted by appellants, and we are of the opinion that it should be overruled and the judgment of the trial court affirmed.

We arrive at this conclusion on the basis that the injunction order does not restrain appellants from the execution of their judgment or the collection of their debt, but •only restrains the sale of this particular property. The only relief sought, and the only relief granted by the injunction order, was that the defendants were restrained and enjoined, in the language of the order, “from proceeding with the foreclosure sale under execution of the property known as Lots 27, 28, 29 and 30 of Block 65 of the Morningside Heights Addition to the City of El Paso * * *. ” Thus, the court carefully preserved the status quo pending final determination on the merits, but left appellants free to collect their debt by any means available. Under such circumstances our courts have held that Rule 684, and the statutes which preceded it in our law, and on which it is based, are not applicable. Reese v. Wallace Enterprises, Inc., Tex. Civ.App., 376 S.W.2d 587; Lee v. Howard Broadcasting Corporation, ’ Tex.Civ.App., 305 S.W.2d 629; Pacheco v. Allala, Tex. Civ.App., 261 S.W. 148.

The sole assignment of error is overruled, and the Order Granting Temporary Injunction is in all things sustained.


author: BARROW, Justice.

text:
    Joe V. CAMPOS, Appellant, v. Charles L. SMITH, Appellee.
    No. 14338.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 20, 1965.

      Tuck R. Chapin, San Antonio, for appellant.
    Clemens, Knight, Weiss & Spencer, San Antonio, for appellee.
   BARROW, Justice.

This is an appeal from an order entered after a non-jury trial, sustaining the plea of privilege of appellee, Charles L. Smith, to be sued in the county of his residence. Appellant, Joe V. Campos, brought suit to recover damages sustained when his car was struck from the rear by appellee’s car on the Pecos Street approach lane of the Southbound Expressway in San Antonio, Bexar County, Texas.

Appellant sought to maintain venue in Bexar County under Subd. 9a of Art. 1995, Vernon’s Ann.Civ.Stats. Under this subdivision, appellant was required to plead, prove and obtain affirmative findings that appellee was guilty of an act or omission of negligence in Bexar County, which was. a proximate cause of appellant’s injuries.. McDonald, Texas Civil Practice, § 4.17.5; Southland Beauty Shops, Inc. v. Foreman, Tex.Civ.App., 319 S.W.2d 737, wr. dism. Appellant pleaded that appellee failed to keep a proper lookout and was guilty of. other acts of negligence.

Findings of fact were filed, wherein the trial court found that appellant failed, to establish by a preponderance of the evidence that appellee failed to keep such a. lookout as a person of ordinary prudence,, in the exercise of ordinary care, would have-kept under the same or similar circumstances on the occasion in question, and, further,, that appellee did not commit any act of negligence proximately causing the collision. Appellant asserts that these findings of no-negligence are so contrary to the great weight and preponderance of the evidence-as to be manifestly unjust. This complaint, requires a review of the entire record. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; Calvert, “No.Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. Law Rev. 361.

Appellant and appellee were the only witnesses who testified, although photographs, were introduced which show the scene of the accident and some damage to appellant’s. automobile. Both parties were proceeding-south from Pecos Street onto the Expressway. , A yield sign is erected at the intersection of Pecos Street and the Expressway... The southbound Expressway is three lanes, wide at the intersection plus an approach, lane extending south of the intersection for-some distance, for traffic merging onto the Expressway from Pecos Street.

Appellee testified: “Well, as I was going to enter the expressway there was a car .ahead of me and it appeared to slow down very slow at the yield sign and then it went •on, and I took for granted it was going on •and enter the expressway, and then as I was even with the yield sign, well, I was looking hack to make sure the way was •clear, and just as I was fixing to turn .around, I collided with the back of Mr. ■Campos’ car.” He further testified that the impact occurred about forty feet south of -the yield sign, and that appellant must have ■stopped, although there was no southbound "traffic on the expressway in front of appellant’s automobile.

Appellant testified: “Before reaching the .yield right-of-way sign about a hundred feet I noticed a car coming in back of me, so I know my brake light was working, and I put my hand out — so he would slow down, and I was making about five miles an hour before the yield right-of-way sign and the traffic was real heavy on the expressway. I had to slow down in order to stop at the yield sign because the traffic coming down the expressway was real heavy, and all of -a sudden the car hit me.” He further testified that appellee admitted to the police officer that the accident would not have occurred if he had not looked towards the expressway. Appellant testified that his car -was damaged $80.00 to $90.00 and that his -neck was injured.

It is seen that the crucial dispute in the ■evidence is over the point of impact. The trial court obviously accepted the testimony ■of appellee that the accident occurred south •of the yield sign and at a place where ap-pellee did not anticipate a stop by appellant because of the location and absence of traffic at this time. The yield sign required -appellee to check traffic on the expressway before entering same.

It is a settled rule that proper look-cut is ordinarily a question for the trier of facts. Lynch v. Ricketts, 158 Tex. 487, 314 S.W. 2d 273; Texas & Pac. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332. This rule has been applied in rearend collisions. In Langford v. Pearson, Tex.Civ.App., 334 S. W.2d 473, wr. ref. n. r. e., an accident occurred on an approach lane leading onto the Gulf Freeway. After reviewing testimony very similar to that in the case at bar, the Court found that the jury findings acquitting both parties of negligence and that the accident was unavoidable, were not so against the great weight and preponderance of the evidence as to be manifestly unjust. See also: Dillon v. Moore, Tex.Civ.App., 367 S.W.2d 70; Beasley v. Baker, Tex.Civ. App., 333 S.W.2d 212; Shiflett v. Bennett Printing Co., Tex.Civ.App., 330 S.W.2d 220.

It is our opinion, from an examination of the entire record, that the findings of the trial court that appellant failed to show by a preponderance of the evidence that on the occasion in question appellee was guilty of a negligent act or omission proximately causing the collision are not so contrary to the great weight and preponderance of the evidence as to be clearly wrong.

The judgment is affirmed.