author: HAMILTON, Justice.

text:
    The SWAP SHOP et al., Petitioners, v. Kay FORTUNE et al., Respondents.
    No. A-8827.
    Supreme Court of Texas.
    Jan. 23, 1963.
    Rehearing Denied March 13, 1963.

      Orgain, Bell & Tucker, Beaumont, of Cleve Bachman and Gilbert I. Low, Beaumont, for petitioners.
    Adams & Browne, Beaumont, for respondents.
   HAMILTON, Justice.

This is a death action brought by the children of a man and wife who were killed when their automobile collided with a truck owned and driven by an employee of defendant, owner of The Swap Shop. On jury findings favorable to the defendant the trial court gave judgment to the defendant. The Court of Civil Appeals has reversed and remanded. 352 S.W.2d 148. The Swap Shop is petitioner here.

On the day after the jury had been empaneled, but before any evidence had been introduced, one of the jurors, Boudoin by name, went to the trial judge and told him that he had just discovered that the defendant in the case was the father-in-law of a close friend and hunting companion, and that he was concerned about the effect his being on the jury might have on that friendship if the verdict were to go against the defendant.

The trial judge conducted a hearing on the matter in his chambers, after which respondents made a motion for mistrial on the ground that a fair trial could not be had with the juror Boudoin on the jury. The trial court overruled the motion for mistrial and the case went to trial before the jury. The jury found against the petitioners as to negligence and proximate cause in several respects. It also found respondents’ father was contributorily negligent in driving the automobile at an excessive rate of speed and that his negligence was a proximate cause of the death of himself and the mother of the respondents. The trial judge entered judgment for the petitioner on the verdict of the jury.

In respondents’ appeal to the Court of Civil Appeals they contended that the juror Boudoin was as a matter of law biased and was therefore, under Article 2134, Vernon’s Ann.Civ.St., disqualified to serve as a juror. The Court of Civil Appeals upheld this contention and reversed the judgment of the trial court. We disagree with this holding and reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

The testimony taken at the hearing held by the trial judge on the qualifications of the juror in question was transcribed and the record certified by the court reporter, and this record was attached as an exhibit to respondents’ motion for mistrial. In his order overruling the motion for mistrial the trial judge attests to the correctness of all the recitations of fact in the motion for mistrial. The record of the interrogation of the juror Boudoin is quoted in full below:

“THE COURT: I have advised the attorneys that Mr. Boudoin told the Court this morning that he did not know yesterday afternoon of any friendship or acquaintance at all with Mr. Dore, but last night he learned from his wife that Mr. Dore is the father-in-law of a good friend of his.
“JUROR BOUDOIN: The name stuck in my mind, but I asked my wife and she said, ‘you ought to know him; he is a good friend of your/j father-in-law.’ And I kind of felt uneasy, with me on the jury; I felt like I ought to tell you all this morning.
“THE COURT: Basically, of course, as the attorneys have explained, both sides are entitled to a fair trial.
“JUROR BOUDOIN: That’s right.
“THE COURT: Do you think your knowing this defendant would in any way affect your verdict?
“JUROR BOUDOIN: Actually I do not. Here’s the only thing I would think about: in case the man does lose the case, me being on the jury, what effect it would have on my friendship with his son-in-law. That’s just straightforward.
“THE COURT: Of course, you will be instructed in the law of the case that you will have to be guided by the evidence and the law the Court gives you. Do you feel like you can do that?
“JUROR BOUDOIN: I do.
“THE COURT: Do the attorneys have any questions?
“MR. BROWNE: I would like to ask him this: You say you worry about how your friend would feel?
“JUROR BOUDOIN: That’s the whole thing, right there. As far as myself, I don’t think it will: I can take the evidence and give a fair judgment on the case. But what effect will it have on my friendship between his son-in-law? Because we hunt together quite a bit, and I would hate to lose a friend over something like this. I realize it is throwing a monkey-wrench in the case; you all will have to re-pick a jury.
“MR. BROWNE: Do you think, feeling like you say here, maybe losing his friendship, do you think that would affect you?
“JUROR BOUDOIN: No, I don’t think. If he is good enough friend, which I think he is, it would have no effect on his friendship. But that is the only thing. As far as giving a just verdict on the man, I don’t think it would have any bearing whatsoever.
“MR. BROWNE: It wouldn’t bother you that you might lose his friendship ?
“JUROR BOUDOIN: No, sir.
“QUESTIONED BY MR. BACHMAN:
“Q. You don’t think it would affect you one way or the other?
“A. Like I say, the man himself, I don’t even know the man. He’s a total stranger to me. The only connection with him, is by his son-in-law.
“Q. What you are saying is that you would listen to the evidence, and if you felt under the Court’s Charge the evidence justified your finding one way, you would go that way, and this wouldn’t affect you?
“A. No, it wouldn’t.
“Q. You wouldn’t bend over backwards, to go the other way?
“A. No; as I say, the only thing I am kind of worried about is how my friend would feel about it. As far as myself I’m willing to keep on with it, go all the way with it.
“Q. You are willing to wait until you have heard it and make up your mind, whatever it is, one way or the other?
“A. That’s right.
“THE COURT: As Judge Lord probably told you yesterday in empaneling you, of course, you understand you don’t find for or against anybody. It’s just certain questions which will be submitted, and that is your sole duty under the evidence, to answer the questions under the Court’s charge. You don’t find for or against anybody.
“JUROR BOUDOIN,: I could do that.
“MR. BACHMAN: I’m satisfied.
“MR. BROWNE: I’ll have to talk to my client, Judge.”

The trial court, in overruling respondents’ motion for mistrial based on this testimony, impliedly held that the juror was not biased or prejudiced. Said Article 2134 provides that any-person who has a bias or prejudice in favor of or against either of the parties in a case is disqualified to serve as a juror. If bias or prejudice is established, then the juror is disqualified by operation of law. However, whether a juror is biased or prejudiced may be a factual determination to be made by the court.

The Court of Civil Appeals has in effect construed this testimony as an admission of bias on the part of the juror. We do not so construe it. While the juror testified that he was concerned about what effect his being on the jury might have on his friendship with the son-in-law of the petitioner if the verdict were to go against the petitioner, he never at any time said that such concern would affect his verdict. On the contrary, he testified several times that it would not. The juror further concluded that if the son-in-law were a good enough friend, which he thought he was, it would have no effect on his friendship.

This is a natural attitude for the ordinary person to take. In the ordinary course of events one who discharges his duty as a juror conscientiously and fairly and in accordance with the court’s charge and the evidence should not lose the friendship of a relative of one of the parties to the case regardless of the outcome. In order to hold that this juror was biased as a matter of law the testimony should compel us to conclude that the juror feared that he might lose the friendship of the son-in-law if the case went against the petitioners, and that that fear would affect the juror’s verdict. We do not think this testimony compels any such holding on our part. The trial court had the opportunity of observing the juror as he testified and was in better position than an appellate court to evaluate the juror’s sincerity and his capacity for fairness and impartiality. If the juror was telling the truth no bias or prejudice is shown. The court’s finding that the juror was not biased or prejudiced should not be disturbed. See McBroom v. Brown, 277 S.W.2d 310 (Tex.Civ.App.1955) writ ref’d n. r. e.; Allbright v. Smith, 5 S.W.2d 970 (Tex.Comm.App.1928) ; Sellers v. Galveston, H. & S. A. Ry. Co., 208 S.W. 397 (Tex.Civ.App.1918), writ ref’d; Bashrum v. Vinson, 330 S.W.2d 538 (Tex.Civ.App.1959), writ ref’d n. r. e.; Cagle v. McQueen, 200 F.2d 186 (5th Cir., 1952).

The cases relied upon by the Court of Civil Appeals were cited by it for the proposition that where a juror is biased or prejudiced his affirmation “that he can set this aside and try the case fairly upon the law and the evidence” should be disregarded. Lumbermen’s Insurance Corporation v. Goodman, 304 S.W.2d 139 (Tex.Civ.App.), ref’d n. r. e.; Kansas City Life Insurance Co. v. Elmore, 226 S.W. 709 (Tex.Civ.App.) no writ hist.; Texas Central Railroad Co. v. Blanton, 36 Tex.Civ.App. 307, 81 S.W. 537, no writ hist.

We have no quarrel with this statement of the law. These cases are just not in point here. The trial court found as a fact that there was no bias or prejudice on the part of the juror. The evidence does not establish the existence of bias or prejudice as a matter of law.

The judgment of the Court of Civil Appeals is reversed and that of the trial court affirmed.


source: Caselaw Access Project

author: NORVELL, Justice.

license: Public Domain

text:
    Oliver J. TODD, Jr., et al., Petitioners, v. Hugh Carl BRUNER et al., Respondents.
    No. A-8674.
    Supreme Court of Texas.
    Jan. 23, 1963.
    Rehearing Denied March 13, 1963.

      John Hamman, Houston, McClain & Harrell, Conroe, Butler, Binion, Rice & Cook, Houston (Arthur P. Terrell, Houston, with firm), for petitioners.
    James M. Crane, Conroe, Howard Klein, Tomball, W. S. Barron, Jr., Dallas, for respondents.

      . The opinion of the Court of Civil Appeals is reported in 349 S.W.2d pp. 260 et'seq.

   NORVELL, Justice.

This case presents a cotenancy situation involving the ten year statute of limitation, Article 5510, Vernon’s Ann.Tex. Stats. It is the settled law in this state that, “The possession of a cotenant or tenant in common will be presumed to be in right of the common title. He will not be permitted to claim the protection of the statute of limitations unless it clearly appears that he has repudiated the title of his cotenant and is holding adversely to it.” Phillipson v. Flynn, 83 Tex. 580, 19 S.W. 136; Poenisch v. Quarnstrom, Tex.Sup.Ct., 361 S.W.2d 367.

The facts of this case require that the judgments of the trial court and the Court of Civil Appeals be reversed and a judgment entered for the petitioners as hereinafter directed. .

Oliver J. Todd, Jr., John J. Todd and John Hamman, are the record owners of an undivided three-fourths interest in a 214.87 acre tract of land out of the Bartley Murry Survey in Montgomery County, Texas. They brought an action in trespass to try title against Hugh Carl Bruner and wife, Lucy May Bruner, and George A. Klein and wife, Erna Klein, who pleaded the ten-year statute of limitation. Bruner purchased his interest in the 214.87 acre tract from the heirs and successors of Edwin McNeese. This interest, insofar as the record discloses, was an undivided one-fourth interest. The deed to him, however, which was executed and delivered in 1952, purported to convey all of the 214.87 acre tract, except a one-sixteenth royalty interest in the minerals. After receiving this conveyance, Bruner executed a deed to Klein which purported to convey a definitely described fourteen-acre tract.

As the case turns upon notice of a repudiation of cotenancy, some statement of the history of the title is essential to an understanding of our holding.

In 1901 the heirs of D. McNeese and Edwin McNeese became involved in litigation with Peter Josserand over lands in the Murry Survey. The D. McNeese interests were represented by Oliver J. Todd, an attorney of Beaumont, Texas, while the Edwin McNeese interests were represented by John Hamman, an attorney of Conroe, Texas. Both lawyers had powers of attorney and at the conclusion of the litigation both Todd and Hamman received undivided interests in the tract which was the subject matter of the suit. In 1958 and after the death of Oliver J. Todd, his sons, Oliver J. Todd, Jr. and John Todd purchased all the D. McNeese interest in the tract of land which is the subject matter of this lawsuit.

The Todds, through their father’s power of attorney and the purchase of the D. McNeese interest, acquired an undivided one-half interest in the 214.87 acre tract now in dispute. John Hamman holds one half of the Edwin McNeese interest under his power of attorney, being a one-fourth interest in the entire tract. As above mentioned the Edwin McNeese interest (with the exception of a one-sixteenth royalty interest which was reserved in the deed to Bruner), is now held by Bruner and his grantee Klein (14 acres).

From the time judgment was rendered in the case of McNeese v. Josserand in 1903 to some time in 1937, the land here involved was unenclosed grazing land and there was no one holding exclusive possession of the premises so as to qualify under the ten-year statute. It is undisputed that in 1953, a fence which had been constructed sometime shortly before January 1, 1938 lapsed into such a state of disrepair that it would no longer turn livestock and the property again assumed the status that it occupied prior to the time a fence was constructed, namely, that of an unenclosed area or field. The critical period of time was that between January 1, 1938 and December 1, 1953, and although there were four groups of owners of the property during such period, no distinction between or among them was attempted in the special issues submitted. The four categories of owners were (1) the claimants under Edwin McNeese (sometimes referred to as the Round Rock McNeeses), (2) John Hamman, their attorney, (3) the claimants under D. McNeese (sometimes referred to as the San Antonio McNeeses) and (4) the Todds, holding under Oliver J. Todd, the attorney for the D. McNeese interests. The burden was upon respondents to show that notice of their repudiation of the co-tenancy relationship had been brought home to the petitioner-plaintiffs or those under whom they claim prior to December 1, 1943.

There is no evidence of actual notice of repudiation unless it can be found in the testimony of J. H. Smith, who was the husband of Lena B. Smith, one of the heirs of Edwin McNeese. At the time Smith’s deposition was taken in 1959, he was 84 years of age and attempted to testify of occurrences which took place some 56 years be-for — in 1903. Smith said he had gone to some land in Montgomery County (probably the Bartley Murry Survey) with John Ham-man. The Edwin McNeeses had “made a trade (with Hamman) to get this land and clear up the title to it.” Smith said, “We got on a train and rode it out there, and then the train stopped to get water, steam engine — there some way. It stopped and we got off. * * * We walked around on the land.” As to what transpired while he and Mr. Hamman were looking at the land, Smith’s testimony was as follows:

“Q: About when did this transaction take place between you and Mr. Hamman with reference to dividing the land? A: Dividing the lands?

“Q: If you recall? A: It was somewhere about 1903.

“Q: 1903. A: Uh huh.

“Q: All right, Sir. A: Its pretty hard for a fellow to recollect things that long.”

(Here followed a rather lengthy colloquy between the Court and counsel for both sides. Counsel for petitioners, plaintiffs in the trial court, requested that the Court instruct the jury that this testimony could not be considered as against “the Todds or to anyone else that this gentleman was not acting for.” This request was overruled by the Court).

“Q: I believe the last question was: 1903? A: Uh huh.

“Q: All right, sir. A: It’s pretty hard for a fellow to recollect things that long.

“Q : Yes, I understand; I know it was a long time ago. Now, when you would make trips to these lands, say between the time you all divided them in 1903 and the time the fence was put up in the late thirties, would you go in company of anyone else? A: No, I don’t think so. * * *

“Q: And when this division was made between you and Mr. Hamman was anyone there besides you and Mr. Hamman? A: No.

“Q: You were representing the^ — A. (interrupting) McNeese heirs?

“Q: The McNeese heirs. And he was representing himself and the other parties. A: Just himself as I recall.”

Smith also gave some testimony about a survey being made. This apparently took place a number of years after 1903. He said that he had heard that the McNeeses had erected a fence, but was not present when the fence was built. He didn’t know whether the land was surveyed or partitioned in accordance with his conversation with Mr. Hamman or not. “The way I understand it was; I don’t — I don’t think the way me'and Mr. Hamman divided it— that is, that’s the way the survey would be; I don’t think Hamman had any of it at all— he was to get any of ■ that — -that was surveyed off.”

At the time Smith’s deposition was offered in evidence, numerous objections were sustained by the trial court to various questions and answers, and perhaps others should have been. What we have is the picture of a diligent lawyer doing his best with an elderly witness who had but a hazy memory of events which took place, if at all, some 56 years ago. The result,— and it is not an unusual one, was that most of the testimony as to a division or partition came from the lawyer’s assumptions rather than from the witness. The testimony does not show an oral partition. Smith was the husband of one of the Edwin McNeese heirs. He did not purport to represent the D. McNeese interests nor the Todd interests. According to Smith, Hamman did not purport to represent these interests. But if we say that the owners of an undivided one-half interest met and attempted to partition the tract, just where were the lines to be run? What portion was Hamman to receive? If we initially consider a strained inference that in the 1903 transaction, Ham-man agreed that he would own no part of the land that was subsequently enclosed by a fence some 34 years later we end up with a patent absurdity. The fence, according to respondent-defendants’ theory of the case, enclosed the entire tract now in dispute. The 1903 “partition” then was one under which Hamman received nothing and the Edwin McNeese interests, represented by Smith, received all. No one went into possession of the lands after the purported Smith-Hamman conversation of 1903 unless the 1937 fencing can be considered referable thereto and, as will be hereinafter noted, Hamman exercised rights of ownership with reference to the property long after 1903. No acquiescence in an agreement of division was ever shown. In fact, Smith never testified to any agreement in definite terms. The whole matter is left in such a nebulous and uncertain state that we must conclude that no evidence of a partition agreement was shown. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

Certainly Smith’s 1903 conversation with Hamman could not support a ,iding of notice of a repudiation of the cotenant relationship insofar as the D. McNeese and Todd interests are concerned. We think the same is likewise true as to Hamman. In support of their affirmative claim of title by adverse possession, no attempt was made to suggest a distinction between the positions of the respective petitioners insofar as notice was concerned. There is nothing in Smith’s testimony that shows a clear repudiation of the title of their cotenants by the Edwin McNeese heirs from and after 1903.

We are also of the opinion that there is no support in the evidence for the finding that petitioners were charged with constructive notice of a repudiation of the cotenancy relationship. In Park v. Sweeten, Tex.Civ.App., 270 S.W.2d 687, affirmed by the Supreme Court under the style, Sweeten v. Park, 154 Tex. 266, 276 S.W.2d 794, it was pointed out that:

“The cases sustaining repudiation of tenancy by acts of unequivocal notoriety as distinguished from actual notice of repudiation, generally rely upon long continued possession and user coupled with non-claimer on the part of the true owner.”

For respondent’s case to stand, notice of repudiation must have been brought home to petitioners or their predecessors in title prior to December 1, 1943, that is, ten years prior to December 1, 1953. The land was not fenced until 1937. Insofar as notice by possession alone is concerned, we are primarily concerned with a six-year period. Possession during that time, coupled with circumstances existing prior thereto, must have been of such unequivocal notoriety as to presumedly convey to petitioners or their predecessors in title notice of the respondents’ adverse claim.

Insofar as the true owner of property is concerned, there is a vast difference between the notice of adverse claim conveyed by the presence of a stranger in possession and that of a cotenant in possession. It is not unusual for one cotenant to have exclusive possession and make beneficial use of lands for rather long periods of time and ordinarily such use is with the acquiescence of the other cotenants. Cotenancy is a common form of land tenure when owners belong to the same family. This results largely by the operation of the statute of descent and distribution and commonly followed customs and practices relating to the making of devises of lands. The legal presumption follows a generally recognized habit or practice based upon years of observed experience. The statutes of limitation are statutes of repose. They are intended to settle and support land titles and are not designed to afford a method whereby one member of a family may appropriate property belonging to his kinsman. Hence the legal requirement that notice of repudiation of the common title should be clear, unequivocal and unmistakable. In the present case, although the Edwin McNeese heirs lived in and about Round Rock, Texas, and the heirs of D. McNeese lived in San Antonio, Texas, no contention is made that the Round Rock McNeeses ever gave actual notice of their repudiation of the coten-ancy relationship to the San Antonio Mc-Neeses. Cotenancy-limitation situations often present the somewhat anomalous argument in which one cotenant in effect says, “Although I lived within a few miles of my cotenant, I never told him of my repudiation of our common title, but my actions with reference to the land itself were so unequivocal and notorious that he must have known of the repudiation that I never disclosed to him.” The real property statutes of limitations as to cotenants are not designed to run in secrecy and silence. Brown v. Bickford, Tex.Civ.App., 237 S.W.2d 763, wr. ref. n. r. e. In the early case of Alexander v. Kennedy, 19 Tex. 488, Chief Justice Hemphill, writing for this Court, said :

“That the possession of one co-heir or co-tenant is the possession of the other co-heirs, and is taken in trust for their benefit, is an elementary and un-disputable principle of law. But this possession may become adverse to the other heirs, by acts or declarations repelling the presumption that the possession is in the character of a co-heir, and which show clearly a claim of exclusive right. One tenant in common may disseize or hold adversely to another tenant in common; but the hostile intent of the possession should be manifested by acts of a more unequivocal character than would be necessary in ordinary cases, where there is no privity of estate between the claimants to the property.
“The difference, says Judge Story, between the two cases is, that acts which, if done by a stranger, would per se be a disseizin, are, in the case of tenancies in common, susceptible of explanation consistently with the real title. Acts of ownership in tenancies in common are not necessarily acts of disseizin. It depends on the intent with which they are done, and their notoriety. The law does not presume that one tenant in common intends to oust another. The fact must be notorious, and the intent must be established by proof. Prescott et al. v. Nevers et al., 4 Mason, 326-31; vide 9 Cow. 24.”

Any cotenant has a right to be in the possession of property in which he owns an interest, hence if the acts of the respondents and their predecessors in title are susceptible of explanation consistent with the existence of the common title then such acts cannot be such as to give constructive notice to the cotenants out of possession. Southern Pine Lumber Co. v. Hart, 161 Tex. 357, 340 S.W.2d 775, citing 4 Tiffany on Real Property (3rd ed.) 526, § 1185; 4 Thompson on Real Property (Perm, ed.) 405, §§ 1881 et seq.

Possession, coupled with payment of taxes, is not notice to a cotenant of a repudiation of the common title. Stiles v. Hawkins, Tex.Com.App., 207 S.W. 89; Poenisch v. Quarnstrom, Tex.Sup.Ct, 361 S.W.2d 367.

The cutting of timber is not in itself notice of repudiation of a cotenant’s title, although it may give rise to a right for an accounting. Kirby Lumber Co. v. Temple Lumber Co., 125 Tex. 284, 83 S.W.2d 638.

In Killough v. Hinds, 161 Tex. 178, 338 S.W.2d 707, this Court said:

“We believe that none of these facts (selling water for use off the premises and allowing an employee to construct a small house on the land in dispute) including the erection of the barn, pig pen, chicken house and the grazing of milk cows, all of which were relied on to show adverse possession were at all inconsistent with the permissive use and the right by which Hinds entered upon and occupied the property and built his residence, nor are they sufficient as a matter of law to afford the record owner constructive notice of a repudiation of that permissive use. * * *
“The rule is thus stated in Davis v. Lund, Tex.Com.App., 41 S.W.2d 57: When A enters upon the land in recognition of the title of B, in order for A to prevail under the 10-year statute of limitations three things must be established, (1) there must be a repudiation of the relationship thus established and claim of title adversely to that of B; (2) this repudiation and adverse claim must be clearly brought home to B as limitations will only begin to run from that date; (3) there must be adverse possession for 10 years after notice of repudiation and adverse claim has been brought home to B.”

The authorities are in agreement upon the proposition that the law point is the same in a cotenant case as it is in a landlord and tenant situation. In commenting upon Sweeten v. Park, 154 Tex. 266, 276 S.W.2d 794, it was said in the Texas Law Review that:

“In Sweeten v. Park the Texas Supreme Court has set forth the doctrine which should become the basis of all future law in the area of adverse possession by tenants. Its soundness is attested by the fact that it is the rule in the majority of American jurisdictions. The policy of permitting a tenant to acquire a limitation title against his landlord by only ordinary acts of ownership may have been suited to a frontier society in which land titles were relatively unstable at best. It loses its validity, however, in a settled society in which stability is achieved largely through registration of deeds and other written documents. For the protection both of the landlord under whom the tenant enters and of persons who may later purchase from him, it is essential that the acquisition of title by a tenant be made dependent upon clear and unequivocal notice of his repudiation of the tenancy and his intention to claim the land for himself.” Betty Jo Wiest Christian, “Adverse Possession by Tenants in Texas,” 38 Tex.Law Review 320.

It was conclusively shown that after 1903, (the date of the occurrence upon which respondents apparently rely to carry notice of repudiation to the petitioners and their predecessors in title), the petitioners or those under whom they hold executed legal instruments affecting the lands involved and thus evidenced their continuing claim to the subject matter of this suit. In 1923, Oliver J. Todd and John Hamman executed a conveyance of a pipe line easement across the premises. In 1932 some of the D. McNeese heirs joined with the Edwin McNeese heirs in executing an oil and gas lease. In 1933, both Todd and Hamman executed timber deeds to the Grogan-Cochran Lumber Company. In 1949 Oliver J. Todd, Jr. and John D. Todd executed a right of way deed to the Sinclair Pipe Line Company. All of these instruments were duly recorded in Montgomery County. There was no evidence of long non-claimer on the part of the co-tenants out of possession. This circumstance in itself serves to distinguish the present case from that of Moore v. Knight, 127 Tex. 610, 94 S.W.2d 1137, cited by the Court of Civil Appeals. In Moore v. Knight, the Court held that “[l]ong-con~ tinued possession and assertion of claim by one tenant” was an important factor in establishing constructive notice of a repudiation of cotenancy, but also held that an important circumstance bearing on the problem was “the nonclaim on the part of one out of possessionSee also, Illg v. Garcia, 92 Tex. 251, 47 S.W. 717. The time period involved and the absence of a showing of nonclaimer fully distinguishes Moore v. Knight and Vasquez v. Meaders, 156 Tex. 28, 291 S.W.2d 926 from the case presently before us. Brown v. Bickford, Tex.Civ.App., 237 S.W.2d 763, ref. n. r. e. See also, Condra v. Grogan Mfg. Co., 149 Tex. 380, 233 S.W.2d 565; Killough v. Hinds, 161 Tex. 178, 338 S.W.2d 707; Harris v. Mayfield, Tex.Com.App., 260 S.W. 835, holdings approved by the Supreme Court; 2 Tex.Jur.2d 100, Adverse Possession § 35; 3 Am.Jur.2d 260. Adverse Possession §§ 174-76; Annotation 121 A.L. R. 1411; Louis v. Muldrow, “The Adverseness of Possession to Fractional Interests,” 9 Baylor Law Review 168.

We sustain petitioners’ point of error. The trial court should have granted petitioner-plaintiffs’ motion for judgment non obstante veredicto. The judgments of the courts below are reversed and this cause remanded to the District Court with instructions to forthwith enter judgment in favor of the petitioner-plaintiffs for title and possession of an undivided three-fourths interest in and to that certain tract of land situated in Montgomery County, Texas containing 214.87 acres, more or less, which is described in petitioner-plaintiffs’ second amended original petition, together with all costs of suit.

Reversed and remanded with instructions to render judgment.

GRIFFIN, J., dissenting.

      . The special issues submitted (both being answered in the affirmative) are as follows: (Explanatory charges and definitions are omitted).
      “SPECIAL ISSUE NO. 1
      “Do you find from a preponderance of the evidence that the Defendants, Hugh Carl Bruner and wife Lucy May Bruner, and George A. Klein and wife Erna Klein, and those under whom they claim, either in person or through a tenant or tenants, or partly in person or partly through a tenant or tenants, have held peaceable and adverse possession of the lands in controversy, under an inclosure, cultivating, using or enjoying the same, or any part thereof, for any period of ten consecutive years after January 1, 1938 and prior to December 1, 1953?
      “SPECIAL ISSUE NO. 2
      “Do you find from a preponderance of the evidence that the Plaintiffs, Todd and Hamman, and those in privity of estate with them, knew that Defendants, Bruner and Klein, and those in privity of estate with them, were claiming the 214.-87 acres in controversy in this suit adverse to the Plaintiffs, Todd and Ham-man, or that Defendants, Bruner and those in privity of estate with them, asserted an adverse possession against the Plaintiffs, of such unequivocal notoriety that said Plaintiffs would be presumed to have notice of such adverse claim?

      . The second special issue submitted to the jury purported to embrace the theories of actual and constructive knowledge of adverse claimer. The issue is probably defective, particularly in that no period of time relating to the acquisition of knowledge is inquired about. That question is not, however, before us. The issue is set forth in footnote No. 2.

      . The situation brings to mind the colloquy from the cross examination -which occurred in a case which may be either apocryphal or illustrative of a number of cotenancy cases, viz:
      “Q. You say you repudiated the co-tenancy in 1924. Why didn’t you tell Mr. Roe (the cotenant out of possession; of this when you saw him? A. Because if I did, I figured he would sue me.”


author: WOODLEY, Presiding Judge.

text:
    Boyd Thomas MAHON, Appellant, v. The STATE of Texas, Appellee.
    No. 35422.
    Court of Criminal Appeals of Texas.
    March 6, 1963.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

Our opinion and order affirming the conviction is withdrawn.

The appellant was found guilty of unlawful sale of marihuana and his punishment was assessed at 12 years. He gave notice of appeal when sentence was pronounced.

While the case was pending on appeal a jury empaneled in the trial court to pass upon the issue of his sanity found that the appellant was insane. Judgment was rendered on the verdict and the appellant was committed to the Rusk State Hospital.

Art. 932b, Sec. 5, Vernon’s Ann.C.C.P., provides:

“When a defendant is found to be insane and committed to a State mental hospital under this Chapter, all further proceedings in the case against him shall be suspended until he becomes sane, except that upon motion of a defendant’s counsel an appeal from a conviction may be prosecuted.”

No motion has been filed by counsel for the appellant seeking to prosecute the appeal further.

The appeal is abated and all further proceedings therein are suspended until the appellant becomes sane.


text:
    Boyd Thomas MAHON, Appellant, v. The STATE of Texas, Appellee.
    No. 35423.
    Court of Criminal Appeals of Texas.
    March 6, 1963.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is the sale of marihuana; the punishment, IS years.

The prior opinion and order affirming the conviction is withdrawn and the appeal is abated, for the same reasons and upon the same conditions shown in the opinion in Tex.Cr.App., 365 S.W.2d 162.


text:
    Nicodemo LAMAS, Appellant, v. The STATE of Texas, Appellee.
    No. 35444.
    Court of Criminal Appeals of Texas.
    Feb. 27, 1963.

      No appearance for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is aggravated assault upon a police officer; the punishment, one year in jail and a fine of $400.

No brief has been filed in appellant’s behalf.

The information alleged that the assault was made upon Marshall Padgett, a police officer of the City of Hereford, Texas, who was in the lawful discharge of the duties of his office and that the assault was made by striking the officer with a knife.

Marshall Padgett, the injured party and Chief of Police of the City of Hereford, testified that on April 14, 1962, he was employed as police officer of the City of Hereford; that he was on active duty, riding in a marked vehicle and wearing his policeman’s uniform.

He further testified that he observed the appellant driving an automobile on a six lane highway in the City of Hereford, weaving from lane to lane. He described the appearance and manner of the appellant and the odor of intoxicating beverage about his person, upon which he formed the opinion that appellant was drunk. He further testified that Munoz, the other occupant of the car the appellant was driving, was also drunk and that half of a half-pint of wine and some beer, including a half-can in the front seat, were found in the car.

The assault occurred, according to the testimony of Officer Padgett, after he had both men in his car and was calling by radio for another officer to come and drive the appellant’s car to the station.

The witness testified that while he was using the radio the appellant was seated next to him and Munoz was next to the door on the passenger side; that the appellant asked what he was going to do and he told appellant that he was going to file on him for D.W.I.; that appellant “ * * * swung at me with a knife in his hand. — It struck my Sam Brown belt and went through my coat.”

The coat and a knife found on the floor of the car, between where the appellant and Munoz had sat, were introduced in evidence.

Other evidence was introduced which corroborated Officer Padgett’s testimony that the appellant was drunk, and it was shown that after assaulted, Officer Padgett fired a shot which struck the appellant in the neck and Munoz in the arm.

Informal bills of exception found in the record raise two claims of error that will he discussed.

Appellant objected to the testimony of the prosecuting witness that on April 14, 1962, he was employed and acting as a policeman for the City of Hereford. The ground of objection was that the records of his employment would he the best evidence.

The trial court did not err in overruling such objection. A well established exception to the best evidence rule is that the official character of an alleged public officer need not be proved by the commission or other written evidence of the right of such officer to act as such, except in an issue directly between the officer and the public. Woodson v. State, 24 Tex.App. 153, 6 S.W. 184; Jacobs v. State, 28 Tex.App. 79, 12 S.W. 408; De Lucenay v. State, Tex.Cr.App., 68 S.W. 796; Skaggs v. State, 167 Tex.Cr.R. 254, 319 S.W.2d 310. See also Sheffield v. State, 165 Tex.Cr.R. 354, 307 S.W.2d 100.

Referring to a statement of the appellant after he was taken to the hospital, Officer Padgett was asked and answered:

“Q. Did the defendant do or say anything there in your presence in the hall in the hospital?

“A. He used quite a bit of profanity around the nurses and the doctor. He made the statement that he was in the service of the U. S. Penitentiary.”

Appellant objected to the answer as not being responsive to the question and moved for a mistrial, urging as ground that the testimony was highly prejudicial and was not a res gestae statement.

We do not regard the statement attributed to the appellant by the witness to have been so prejudicial and harmful that any instruction by the court to the jury to disregard it would not have removed the harm. No such instruction was requested. The objection that the answer was not responsive was properly overruled and the trial court did not err in refusing to declare a mistrial.

We find the evidence sufficient to sustain the jury’s verdict and find no reversible error.

The judgment is affirmed.


text:
    Arturo GOMEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 35355.
    Court of Criminal Appeals of Texas.
    Feb. 27, 1963.
    Joseph Chacon, San Antonio, for appellant.

      James E. Barlow, Dist. Atty., Norma Lee Fink, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., of Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is the unlawful possession of narcotics paraphernalia, a prior conviction for sale of heroin being alleged; the punishment, 30 years.

The prior conviction was established by the evidence.

Police Officers Creed and Dotson, and Irvin Maroney, agent in the Narcotics Section of the Texas Department of Public Safety, went to the upstairs apartment of the appellant with a search warrant.

As the officers entered the premises a man, identified in the testimony of appellant’s wife at the trial as Robert Gonzales, jumped out the window and was pursued by Agent Maroney, but escaped.

Officer Creed saw appellant running into the bedroom and stopped him. Officer Dotson searched the apartment. He found an ■eye dropper with bulb and needle, marked “Basilia Pharmacy”, under the linoleum in the dining room; a box of #5 gelatin capsules in a closet and another in the attic, and found a still warm bottle cap or “cooker” in the dining room.

Accompanied by the appellant in their search on the outside, Officers Creed and Maroney found an unmarked eye dropper with a hypodermic needle attached and Officer Maroney found a white powder in a finger stall inside of two other finger stalls.

Chemist Leslie C. Smith testified as to tests run upon the objects and substances mentioned, which were properly identified and admitted in evidence. He testified that analysis was made and the unmarked eye dropper was found to contain heroin, but the eye dropper marked “Basalia Pharmacy” contained nothing; the bottle cap contained heroin and the 1.28 grams of white powder in the finger stall was 50% pure heroin.

Appellant’s confession was introduced in evidence following a hearing in the jury’s absence as to whether it was voluntarily made. The confession included the following:

“The officers searched my house and Det. Dotson found a joint under the rug in my dining room. This joint was not mine. I took the officers down stairs and around to the East side of the house and showed them where I had thrown a joint and a rubber finger stall containing approximately two grams of heroin. Det. Creed found the joint right away. This was the joint that belonged to me and I had thrown it out of the window. He found the joint near the fence. We looked around and later Agent Maroney found the finger stall containing the heroin that I had thrown out of the window in a drive way across the fence in the back yard. This was all of the heroin that I had left out of three grams. I gave away about four caps of heroin and I sold six caps of heroin.”

Appellant called his wife as a witness and he testified, both in the jury’s absence on the question of the admissibility of the confession and before the jury. The issues of fact raised by their testimony were submitted to the jury in the court’s charge, to which there were no objections, and were resolved against the appellant.

The search warrant is not before us. No objection to the introduction of evidence relating to the search or the fruits thereof having been made, appellant’s complaint that the search warrant did not name him presents nothing for review.

We find no merit in appellant’s contention that the evidence is insufficient because none of the narcotics paraphernalia was found in appellant’s possession. The evidence is sufficient to sustain the jury’s finding that he was in possession of the paraphernalia and narcotics the officers found outside the window where the appellant confessed that he threw them. That his wife or the man who jumped out the window may also have been implicated in the unlawful act is not controlling. Hargiss v. State, Tex.Cr.App., 360 S.W.2d 881.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Alfred PRICE, Appellant, v. The STATE of Texas, Appellee.
    No. 35446.
    Court of Criminal Appeals of Texas.
    Feb. 27, 1963.
    Gilbert M. Spring, Lufkin, for appellant.
    Leon B. Douglas, State’s Atty., of Austin, for the State.
   MORRISON, Judge.

The offense is transportation of whiskey in a dry area; the punishment, a fine of $250.00.

Sheriff Tindall testified that on the day in question he observed appellant walking toward two men in an alley behind a cafe and that two inches of a whiskey bottle were protruding from his hip pocket. He further testified without objection that he searched appellant and found the bottle to contain Sunnybrook Whiskey. His testimony was corroborated by the witness Halbert. Appellant did not testify or call any witnesses in his behalf. The dry status of the area was established.

We find the evidence sufficient to support the conviction.

The sole question presented by brief and in argument is the failure of the court to charge the jury in accordance with the terms of Article 666-23a(l), Vernon’s Ann. P.C., to the effect that one who purchases alcoholic beverages for his own consumption may transport the same from a place where the sale thereof is legal to a place where the possession is legal.

There being no' evidence to raise this issue, the court did not err in failing to give the requested charge. Davis v. State, Tex.Cr.App., 318 S.W.2d 668, and cases there cited.

Finding no reversible error, the judgment of the trial court is affirmed.


author: BELCHER, Commissioner.

text:
    Robert Linley KYLE, Appellant, v. The STATE of Texas, Appellee.
    No. 35372.
    Court of Criminal Appeals of Texas.
    March 6, 1963.
    Jesse Owens, Vernon, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for fondling; the punishment; five years.

The testimony of the state reveals that the appellant knocked on the rear door of the home of the prosecuting witness, a female, who was at the time ten years of age and alone in the home, and appellant asked if her father was at home. When she told him that her father and mother had gone to the bank, he asked if there was any coffee and she said “yes”, then he entered, poured a cup of coffee, took a drink, and began playing with her “tee-tee” by placing his hands between her legs inside her pants. After a short time he left but soon returned. When she told him that her mother and father had not returned he again entered the house, poured a cup of coffee and moved near her saying, “Why don’t you spread your legs apart?” She refused and he spread her legs apart, pulled her panties down to one side and began sucking her “tee-tee” between her legs. When she put her legs together, pulled her dress down, he raised her dress and did the same thing again. Appellant said to her “lets put yours and mine together” took his “thing” out and put it inside her panties, then as he removed it he told her to watch it shoot and the discharge went into an ash tray. At this time he gave her a “dollar bill” and told her not to tell her parents.

Proof was offered that an analysis by a chemist of the matter in the ash tray showed that it contained male spermatazoa.

The appellant did not testify but called three witnesses who testified that he bore a good reputation and had never been convicted of a felony.

Appellant complains of the admission in evidence of statements made by the girl to her mother.

The evidence reveals that the girl was crying when she told her mother what had happened, on the mother’s return from the bank shortly after the appellant had left the house. The statements were admissible as res gestae. However, no objections were made at the time of the admission of such statements.

It is contended that the trial court erred in sustaining the objection to and also instructing the jury not to consider that portion of the argument of appellant’s counsel when he argued:

“I do not know that the little girl told the truth but if what she said is true, then I will say that I cannot conceive of a normal human being doing such a thing and if this defendant did what she said he did, there is something wrong with him, he needs to see a psychiatrist for psychiatric treatment * * ⅜»

The defense of insanity was not interposed and the argument was upon an issue not before the jury. No reversible error is presented. Tolbert v. State, 157 Tex.Cr.R. 101, 246 S.W.2d 896.

The other contentions presented have been examined and they do not reveal error.

The judgment is affirmed.

Opinion approved by the Court.


author: McDonald, judge.

text:
    Nathan R. WINGATE, Appellant, v. The STATE of Texas, Appellee.
    No. 35398.
    Court of Criminal Appeals of Texas.
    Feb. 27, 1963.
    No attorney on appeal.
    Frank Briscoe, Dist. Atty., Daniel P. Ryan, Jr., Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., of Austin, for the State.
   McDonald, judge.

The offense is driving while intoxicated, second offense; the punishment, confinement in the county jail for twelve months.

The state introduced into evidence a certified copy of the judgment showing a prior conviction for misdemeanor D.W.I. in the County Court of Henderson County, Texas.

Edward D. Michalek, a former assistant district attorney for Harris County, testified that he was present in court when the appellant had judicially admitted that he was the same person who had been convicted of misdemeanor D.W.I., on the 23rd day of January, 1950, in Henderson County, Texas.

Voluntary admissions of a party in one judicial proceeding are admissible against him in other judicial proceedings to which he may also be a party. 24 Tex. Jur.2d, Evidence, Sec. 630; Mooney v. State, 73 Tex.Cr.R. 121, 164 S.W. 828; Diamond v. State, Tex.Cr.App., 355 S.W.2d 522.

• State’s witnesses Mr. and Mrs. Allan Ingalsbe both testified that they observed appellant driving his Cadillac automobile on the night in question and saw him strike a parked car in the rear; that they observed appellant at the time and that he staggered when he walked, as he got out of his car, and was disheveled; that the smell of liquor was on his breath; and that, in their opinion, he was intoxicated.

Houston police officers E. C. Rogers and R. A. Woodruff testified that upon their arrival at the scene of the accident, appellant smelled of alcohol and, in their opinion, was intoxicated. The officers further testified that appellant offered them a forty-dollar bribe.

Elmer Wilson Burkett also testified for the state. Mr. Burkett related that he was a wrecker driver; that on the night in question he saw appellant at the scene of the accident in which he (appellant) had been involved; that when he got to the scene appellant “was holding onto a car, more or less leaning on it * * The witness further testified: “as I remember, the officer asked him to walk over to where he was and he kind» wobbled a little bit, or kind a staggered”; that he got close enough to appellant to smell his breath and that he could smell the odor of whisky; and that it was his opinion that appellant was intoxicated.

The witnesses for appellant, Manos Das-kalos and appellant’s wife, Janie Wingate, testified that they had observed the appellant a short time before the accident and that in their opinion he was not intoxicated at the time they observed him. The jury resolved this issue against the appellant.

We find the evidence sufficient to sustain the jury’s verdict.

At the trial appellant complained of the admission of the testimony of the two officers that they were offered a forty-dollar bribe by him. Appellant was not shown to have been under arrest at the time this evidence was adduced, nor did his counsel object to its admissibility upon the grounds that the appellant was under arrest. The objections taken are without merit. No error is shown in the action of the trial court in overruling them. It has always been held admissible to show a tampering with the witness for the state by the defendant as a circumstance tending to show his guilt. Branch’s Ann.Penal Code, Vol. 1, 2d Ed., Sec. 184, page 191; also, see: Heard v. State, 116 Tex.Cr.R. 328, 31 S.W. 2d 435; Jackson v. State, 143 Tex.Cr.R. 143, 157 S.W.2d 921; and Steele v. State, 147 Tex.Cr.R. 481, 182 S.W.2d 496.

Appellant’s other exceptions have been examined closely and are without merit.

No brief has been filed by appellant.

Finding no reversible error, the judgment is affirmed.


author: DICE, Commissioner.

text:
    Jean Porter BAILEY, Appellant, v. The STATE of Texas, Appellee.
    No. 35378.
    Court of Criminal Appeals of Texas.
    Feb. 27, 1963.

      Irwin & Irwin, T. K. Irwin, Jr., George W. Irwin and R. T. Scales, Dallas, for appellant.
    Henry Wade, Dist. Atty., Dallas, George Milner, Bill Watts, James Miller, Steve Guittard and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for murder with malice; the punishment, six years’ confinement in the penitentiary.

In view of our disposition of the case, a recitation of the facts is unnecessary other than to observe that it was undisputed that appellant killed the deceased by shooting him with a pistol.

Appellant and the deceased were husband and wife, but on the day of the killing were separated and not living together. The homicide occurred on an occasion when the deceased returned to the home and engaged appellant in a conversation relative-to his taking custody of their fourteen-year-old son. Appellant was the only surviving eyewitness to the killing. When Officer Duncan arrived upon the scene shortly after the shooting, appellant was still at the home and the deceased was found lying on the floor in the kitchen, with four bullet holes in his body.

Appellant’s defense at the trial was that of self-defense, which became a sharply contested issue in the case.

It was the state’s theory, which was supported by the testimony of Dr. P. O. B. Montgomery, Jr., who performed an autopsy upon deceased’s body, that the first shot fired by appellant struck the deceased in the back.

Testifying as a witness in her own behalf, appellant admitted shooting the deceased but contended that she was acting in her own necessary self-defense. She testified to previous threats and acts of violence committed upon her by the deceased and stated that when she shot the deceased he was coming toward her in a rage and that she was in fear of death or serious bodily injury. She further stated that the first shot was fired when the deceased was looking toward her and that it struck him in front.

While Officer Duncan was testifying on direct examination, state’s counsel exhibited to him a certain instrument marked for identification as state’s exhibit #1, which the officer testified was a photograph of the person (deceased) whom he saw lying on the-kitchen floor when he arrived upon the scene of the killing. The exhibit was not introduced in evidence and after counsel had concluded his direct examination of the officer, counsel for appellant requested the court that they be allowed to see the photograph for the purpose of identification and further cross-examination of the witness. Such request was by the court refused.

In refusing appellant’s request, the court clearly fell into error. When the exhibit was used by state’s counsel before the jury in questioning the officer, its contents became an issue in the case. Under the decisions of this court it is held to be reversible error to deny the demand of an accused for the production of any statement or document which had been used in some way before the jury by which its contents became an issue — such as being used by a witness to refresh his memory, or exhibited, read from, or used to question the witness in the jury’s presence. Green v. State, 53 Tex.Cr.R. 490, 110 S.W. 920, 22 L.R.A., N.S., 706; Kirkland v. State, 86 Tex.Cr.R. 595, 218 S.W. 367; Board v. State, 122 Tex.Cr.R. 487, 56 S.W.2d 464; Jackson v. State, 166 Tex.Cr.R. 348, 314 S.W.2d 97; Palacio v. State, 164 Tex.Cr.R. 460, 301 S.W.2d 166; and Gaskin v. State, Tex.Cr.App., 353 S.W.2d 467.

We are unable to agree with the state that because Officer Duncan did not use the exhibit to refresh his memory but only identified it appellánt was not entitled to see and examine the same. As heretofore stated, when the photograph was exhibited to the officer before the jury and he was questioned relative thereto, its contents became an issue and appellant then had the right to see and examine the same.

While Dr. Montgomery was testifying on redirect examination by state’s counsel he was asked to give his opinion, based upon his examination of the deceased and assuming that the deceased was standing when the shots were fired, as to which of the four bullets first entered the deceased’s body. Appellant objected to such inquiry on the ground that the doctor had not been qualified to give such an answer. The objection, which we deem sufficient, was by the court overruled and Dr. Montgomery was permitted to testify that in his opinion it was either the bullet which entered the back or the side that first entered the deceased’s body.

The admission of such testimony was clearly error and prejudicial to the appellant on the issue of self-defense.

In Powdrill v. State, 62 Tex.Cr.R. 442, 138 S.W. 114, a prosecution for murder where self-defense was an issue, this court, in reversing the conviction because a doctor was permitted to .testify as to which of two shots fired by the accused struck the deceased under the arm and that it was the first shot, said:

“In this case there were no eyewitnesses except the appellant to the killing. The appellant testified to such a state of facts as from his standpoint tended to show that he was acting in self-defense. A very material fact in the case was whether the first shot entered under the arm or not. We think it clear that this fact could not be testified to by the doctor, and that it was not such a character as an expert could give his opinion or conclusion about. It was for him to detail the character, location, etc., of the wounds and for the jury to determine this material fact. We think the court erred in not excluding this evidence of the doctor. Williams v. State, 30 Tex.App. 447 [429], 17 S.W. 1071; Thompson v. State, 30 Tex.App. 325, 17 S.W. 448; McCormick v. State, 52 Tex.Cr.R. 495 [493], 108 S.W. 669; Cooper v. State, 23 Tex. 331.”

Dr. Montgomery was not only not qualified to express such an opinion but the opinion he did express was in violation of the rule which prohibits either a non-expert or an expert witness who was not a witness to the homicide to express an opinion as to the relative position of the parties at the time of the shooting. Boles v. State, 108 Tex.Cr.R. 204, 299 S.W. 407; Boles v. State, 109 Tex.Cr.R. 471, 5 S.W.2d 509; and Villareal v. State, 140 Tex.Cr.R. 675, 146 S.W.2d 406.

We do not agree with the state’s contention that the matter of Dr. Montgomery’s opinion was brought out by appellant on his cross-examination of the witness. On cross-examination appellant did not ask the doctor for his opinion but only inquired as to whether he know which shot first entered the body and whether he could determine which shot was fired first.

The matter of the court’s refusal to grant a new trial because three defense exhibits: 6, 7, and 8 — being photographs of the deceased’s body and not introduced in evidence — inadvertently got into the jury room during the jury’s deliberations will not be discussed, as such will not likely occur upon another trial.

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

Opinion approved by the Court.


text:
    Donald Foster MOBLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 35314.
    Court of Criminal Appeals of Texas.
    Feb. 6, 1963.
    Rehearing Denied March 13, 1963.
    Second Motion for Rehearing Denied April 3, 1963.
    See 366 S.W.2d 558.

    Thos. H. Dent,-Galveston, for appellant.
    Ted Schulz, County Atty., Richmond, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is false imprisonment; the punishment, thirty days in jail.

The statement of facts found in the record bears the approval of counsel for the state and for the appellant, but is not approved by the trial judge. The statement of facts cannot be considered, because it was not ¡filed within ninety days after the date notice of appeal was given, as required by Sec. 4 of Art. 759a, Vernon’s Ann.C.C. P. Jackson v. State, Tex.Cr.App., 344 S.W.2d 876.

In the absence of a statement of facts which may be considered, we cannot pass upon the question of the sufficiency of the evidence nor upon appellant’s complaint to the court’s charge.

Appellant’s complaint to the court’s action in overruling his motion to quash the complaint and information is not before us for review, in the absence of an exception to the court’s ruling. We have, however, examined the complaint and information and find that they follow the language of the statute, Art. 1169, Vernon’s Ann.P.C., in charging the offense, and are sufficient.

There are no formal bills of exception, and the proceedings appear to be regular.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Alberto Carreon SALAS, Appellant, v. The STATE of Texas, Appellee.
    No. 35202.
    Court of Criminal Appeals of Texas.
    Jan. 16, 1963.
    Rehearing Denied March 13, 1963.

      Joseph A. Calamia, Edward S. Marquez, El Paso, for appellant.
    Edwin F. Berliner, Dist. Atty., Jack N. Ferguson, Asst. Dist. Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The indictment charged that appellant was at the time and place mentioned therein “unlawfully under the influence of a narcotic drug.” Upon his plea of guilty, appellant was sentenced to not less than one (1) hour and not more than three (3) years; the execution of such sentence was probated, and under the authority of Section 8 of Article 781d, Vernon’s Ann.C.C.P., this appeal is prosecuted.

Ample proof was offered that appellant came across the international bridge at El Paso into this State while under the influence of narcotics.

The constitutionality of Article 725c, Vernon’s Ann.P.C., is attacked, and reliance is had upon the recent holding of the Supreme Court of the United States in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758. Article 725c, V.A.P.C., reads, in part, as follows:

“Sec. 2. It shall be unlawful for any person to habitually use narcotic drugs, be addicted to the use of narcotic drugs, or be under the influence of narcotic drugs, provided, however, that nothing in this Section shall be applicable to a person who has a medical need for narcotic drugs and who obtains the narcotic drugs required for such medical need in accordance with the laws of the State of Texas and of the United States.”

Under the above holding of the Supreme Court, Article 725c, V.A.P.C., insofar as it makes it a crime for a person to be addicted to the use of narcotic drugs is invalid. We cannot bring ourselves to agree with appellant that the entire act must fall. The majority opinion in Robinson points out that “[t]hat portion of the statute (California) referring to the ‘use’ of narcotics is based upon the ‘act’ of using,” while being addicted to narcotics was a status or condition and not identical to the act of using. The California trial court instructed the jury that they might convict upon a finding that accused committed the “act” or was of the “status” and such instructions were approved on appeal. Such is not the case before us here. Appellant was charged with the “act” of being under the influence, to which indictment he plead guilty before the court without the intervention of a jury. Under such a case and the holdings of this Court in Divine v. State, 165 Tex.Cr.R. 348, 307 S.W.2d 91, and cases there cited, we will presume that the court considered only such evidence as was admissible and that he based his judgment on the valid and constitutional portion of the statute in question.

If we properly understand appellant’s final contention, it is that the caption of Article 725c, supra, when enacted, indicated a legislative intent to impose cruel and unusual punishment upon the narcotic addict, as announced by the opinion in Robinson, and that since the act contained no severability clause the entire act must fall. We call attention to that portion of the caption which makes “the use of narcotic drugs unlawful” and the .rule of statutory construction which provides that if the unconstitutional or void portion of any statute be stricken out and that which remains is complete in itself and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which is rejected, the statute must be sustained. And this is true though the act contains no severability clause. Young v. State, 160 Tex.Cr.R. 67, 267 S.W.2d 423, and 12 Tex.Juris. 2nd, Constitutional Law, Sec. 48, p. 393.

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


text:
    Joe C. GOMEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 35248.
    Court of Criminal Appeals of Texas.
    Feb. 6, 1963.
    Rehearing Denied March 13, 1963.
    Ralph Chambers, Houston, King C. Haynie, Houston (On Appeal Only), for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., and Jimmy R. James, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The offense is burglary with two prior convictions for felonies less than capital alleged for enhancement; the punishment, life.

Alex Holgin and his wife, witnesses for the state, testified that during their absence on September 10, 1960, someone entered their home during the daytime by making a hole in the screen door and lifting the latch, and took a pair of shoes, a rifle, some nickles and pennies and some cigarette lighters, and that the entry of the house and the taking of said articles was without their consent. Mrs. Holgin further testified that one of the lighters was returned to her.

Henry Cabellero testified that on September 10, 1960, he went to the home of Alex Holgin to see Holgin’s grandson. While testifying he identified the appellant as the same person he saw come out of the Holgin house as he arrived, and that the appellant was carrying a rifle which was encased and a shoe box; that he asked the appellant about the grandson and appellant said he had gone to the store. Cabellero lived across the street in front of the Holgin house.

In support of the allegations of the two prior convictions alleged the state introduced in evidence Exhibits Nos. 1 and 2 which consisted of certified copies of the judgments and sentences with attached photographs and fingerprints which were properly authenticated by the Record Clerk of the Texas Prison System. The factual data in the judgments and sentences correspond with those in the enhancement allegations of the indictment.

Officer Neaven while testifying identified the appellant as the same person who was convicted on March 30, 1955, of burglary of a private residence at night, which he had investigated.

It was stipulated that the known fingerprints of the appellant, Joe C. Gomez, introduced as State’s Exhibit No. 3, were the same as those included in State’s Exhibits Nos. 1 and 2.

The appellant did not testify but called Valentino Costello who testified that a boy known to him only as Johnnie gave him a •cigarette lighter that had been recovered after the burglary of the Holgin home; and that he had been shown a picture of Joe Gomez but he did not recall having seen him before.

It is contended that the evidence is insufficient to support the allegations of the prior convictions on the ground that the certified copies of the judgments and sentences of the prior convictions were not introduced in evidence before the jury.

After a hearing in the absence of the jury, the court admitted into evidence State’s Exhibits Nos. 1 and 2 which included said certified copies of the judgments and sentences and then had the jury returned into court. Both exhibits are contained in the statement of facts approved by counsel. It was stipulated into the record as evidence before the jury that the known fingerprints taken of the appellant on January 10, 1960, were the same as those included in State’s Exhibits Nos. 1 and 2. Therefore it is evident that said records were in evidence before the court and jury. The stipulation as to fingerprints removed any question as to appellant’s identity in connection with the prior convictions.

Appellant challenges the sufficiency of the evidence to show that the second prior conviction, which was in Cause No. 53961, was for an offense committed after the conviction for the first offense alleged had become final.

The indictment alleges that appellant was convicted May 9, 1951, for burglary in Cause No. 52040 in the Criminal District Court of Bexar County, Texas; that after the conviction in said Cause No. 52040 had become final he committed the offense of burglary of a private residence at night for which he was convicted on March 30, 1955, in Cause No. 53961 in the Criminal District Court of Bexar County; and the primary offense was alleged to have been committed on or about September 10, 1960. The judgments and sentences of the prior convictions in evidence correspond with and support the allegations of the indictment.

Officer Neaven of the San Antonio Police Department testified that he investigated the burglary of a private residence at night of which Joe C. Gomez was convicted on the 30th day of March 1955, and that such burglary occurred on November 22, 1954. While testifying he identified the appellant as the same person who was convicted for such offense.

The evidence sufficiently shows that the second prior conviction as alleged was for an offense committed after the first prior conviction had become final.

There were no objections to the charge and no requested charges presented to the court. An examination of the court’s main charge reveals no fundamental error, as the appellant contends.

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

Opinion approved by the Court.


text:
    Rafael CAVAZOS, Appellant, v. The STATE of Texas, Appellee.
    No. 35043.
    Court of Criminal Appeals of Texas.
    Jan. 30, 1963.
    Rehearing Denied March 13, 1963.
    Oscar Cavazos, Raymondville, Gus L. Kowalski, Kingsville, Kelley, Looney, McLean & Littleton by Rogers Kelley, Edin-burg, for appellant.
    Edna Cisneros, Dist. Atty, Raymondville, J. H. Fugate, Jr., Sp. Prosecutor, Kings-ville, Sam L. Jones, Dist. Atty., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The prior opinion is withdrawn and the following is substituted therefor.

The conviction is for murder; the punishment, 35 years.

The trial was had in Kleberg County on a change of venue from Willacy County.

The state introduced evidence that the appellant, shortly after 2 A.M. on August 8, 1959, telephoned Dr. Spence, a physician, at his home, asking that he come because something was wrong with Virginia (the deceased). Within a few minutes Dr. Spence arrived at deceased’s house and the appellant met him on the front porch dressed in shirt, pants and shoes, and told him that “Someone is trying to, has been trying to do something to us.” Appellant turned on the lights and they entered the bedroom and the doctor saw the deceased lying on the bed with the sheet pulled up to her neck and upon examination found that she had been dead less than thirty minutes. Upon inquiry by the doctor, appellant said that when he awoke, he couldn’t breathe, felt like someone was choking him and like in a dream he heard Virginia (deceased) calling him, and when he did awake, he found her “like this and then I called you to come.” The deceased was an employee in the office of Dr. Spence.

Dr. Spence further testified that the body was clothed in a nightgown and that he observed marks on the right side of the neck and shoulder and some blood spots on the pillow and sheet. The appellant told him that he could not find his pocketbook, but said nothing about money. Dr. Spence also testified that there was no evidence of a struggle and that the things in the house appeared to be in order. He telephoned for an ambulance, the officers were notified and they arrived in a brief time.

The testimony of the Sheriff, deputy sheriff, mortician and the Willacy County physician corroborated that of Dr. Spence. In addition to the testimony of Dr. Spence, it was shown by the testimony of one or more of these witnesses that shortly after they arrived the appellant said he was in bed with the deceased, but denied that he killed her, that he heard someone leave the room, that somebody choked her, and killed her and robbed them. He said that his pocketbook with the $500 in it and the deceased’s purse containing $1500 were missing, and whoever got them was the person who committed the crime; that his wallet was found with no money in it in a room adjoining the bedroom and the purse was found in a closet of the bedroom and it contained $29.50 in money. Their testimony reveals that there were bruises and scratches on deceased’s neck and shoulder, a cut or bruise on her lip and the nail on the right big toe was almost torn off; and also that the appellant had fresh scratches on his face, arms and chest, and that they could have been made by fingernails and that appellant could not offer any explanation for the scratches.

Dr. Flory, a pathologist, testified that he performed an autopsy on the body of the deceased, and expressed the opinion that the marks he found on the neck could have been made by fingernails; that he took specimens of fingernail scrapings found under the fingernails; and he also expressed the opinion that death was caused by manual strangulation and that he found no other cause of death.

A chemist of the Department of Public Safety testified that he made an analysis of the fingernail scrapings and it showed that they contained human matter.

While testifying, Bessie Flores, a waitress at a tavern, identified the appellant as the person she served along with two or three companions in September, 1960. During this time “he (appellant) was asked by this man that if he, in truth, had been the one * * * who was the cause of his wife’s death or his woman’s death.” To this question he smiled and did not answer, but when the same question was asked again he answered “Yes,” and he said “I have done it because my wife is very jealous and was very j ealous, and she had me very tired.”

Aurora Garcia testified that the appellant, whom she had known for about four years, came to her house after the death of the deceased, Virginia Cavazos, and talked with her about the death stating “that he killed her for me” and that he was going to marry her, and if she would not marry him then he would kill her and would do something to her family. Aurora testified that “I told him I will not marry with you because just like you have killed Virginia you could kill me.”

The appellant did not testify but called several witnesses. He introduced in evidence a marriage license showing the marriage of the deceased and Nieves Pena, September 7, 1938, and there is no evidence that their marriage was dissolved until the •death of the deceased. Testimony was offered that the general reputation of the state’s witness Aurora Garcia for truth and veracity was bad. Appellant also offered evidence by a physician which was based on what he heard Dr. Flory and others testify •as to the cause of deceased’s death, and he expressed the opinion that her death was ■not caused by manual strangulation.

It is contended that the court erred in •overruling appellant’s motions, first, to dismiss the third count in the indictment for the reason that there was no evidence to support it, and second, in submitting both the first and third count of the indictment and thus permitting the jury to make a finding of guilty without designation of the •count under which guilt was found.

The first count charges that the appellant killed the deceased by choking her with his hands, and the third count charges that the appellant killed her by strangling her, the manner and means of effecting said strangulation being to the grand jurors unknown. No proof was offered by any member of the grand jury. The evidence adduced on the trial leaves uncertain the precise manner and means of said strangulation. However, the proof is sufficient to show that the deceased was killed by the acts of the appellant. Under such conditions, it was not error to refuse to dismiss the third count in the indictment. Harris v. State, 37 Tex.Cr.R. 441, 36 S.W. 88; Bookman v. State, 112 Tex.Cr.R. 233, 16 S.W.2d 123; McNiel v. State, 131 Tex.Cr.R. 553, 100 S.W.2d 365.

Only one offense was charged and that was murder. Where a general verdict is returned, and the evidence is sufficient to support a finding under either of two counts submitted, as there was in the instant case, no error is presented. 29 Tex.Jur.2d, 652, Sec. 335; Martinez v. State, 169 Tex.Cr.R. 229, 333 S.W.2d 370; Johnson v. State, 169 Tex.Cr.R. 612, 336 S.W.2d 175.

Complaint is made of the last sentence of the paragraph in the charge defining malice aforethought which is as follows: “If malice be fully conceived and formed, no definite period of time is necessary to intervene between the formed design to kill and the homicide.”

Appellant objected thereto on the ground that it was an incorrect statement of the law, that it was calculated to mislead and confuse the jury, and constituted a comment by the court on the weight of the evidence.

The information contained in the quoted statement from the definition under the facts of this case does not appear to be reasonably calculated to injure the rights of the accused. In considering similar contentions it was held that no reversible error was shown. McClellan v. State, 118 Tex.Cr.R. 473, 40 S.W.2d 87; Steadham v. State, 119 Tex.Cr. R. 475, 43 S.W.2d 944.

Appellant complains of the refusal of the trial court to instruct the jury upon the law applicable to circumstantial evidence.

To support this contention the appellant asserts that the testimony of the witnesses Flores and Garcia on its face is discounted, vague, indefinite, frivolous, meaningless, bears no semblance of truth, and is clearly incompetent as a matter of law.

The jury are the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Art. 706 C.C.P. No authority has been cited showing that this statute is not here applicable and we are not aware of any holding that the testimony of said witnesses could be rejected as a matter of law.

Proof of the admissions of the appellant that he lcilled the deceased renders unnecessary the submission of a charge on circumstantial evidence. 4 Branch 2d 3S8, Sec. 2050; Stevenson v. State, 169 Tex.Cr.R.431, 334 S.W.2d 814.

Appellant insists that the court erred in refusing to submit his requested charge to the jury regarding the effect of the exculpatory statements made by him as shown by the testimony of four state witnesses while the state was developing its case in chief.

Whether a charge on exculpatory statements was required under the rule stated in Otts v. State, 135 Tex.Cr.R. 28, 116 S.W.2d 1084, 116 A.L.R. 1454, or whether the facts here come under an exception to the rule such as recognized in 1 Branch’s Ann.P.C. 2d, Sec. 95, page 104 and the cases there cited, is not the controlling question.

Appellant also excepted because of the court’s failure to submit his affirmative defenses.

The exculpatory statements attributed to the appellant by witnesses for the state were not introduced in connection with a confession or admission of guilt and patently were not offered by the state to prove that appellant and the deceased had been robbed and that some intruder had killed the deceased and had left the scene before appellant could become fully awake.

The charge not only failed to instruct the jury that the state was bound to prove the falsity of appellant’s exculpatory statements, but failed to submit the affirmative defense raised by such exculpatory statements and failed to instruct the jury to acquit if they found or had reasonable doubt that an intruder or some other person entered the house, choked and killed the deceased and robbed them.

The absence of any submission of the defense raised by appellant’s exculpatory statements, or of an instruction requiring the state to disprove them, was' calculated to injure the rights of the appellant and calls for reversal.

Upon another trial, the photographs of the body of the deceased and of the death bed, which are obviously inflammatory, should not under a similar record be admitted in evidence. They do not appear to be admissible under the rule stated in Alcorta v. State, Tex.Cr.App., 294 S.W.2d 112, 115.

Appellant’s motion for rehearing is granted; the affirmance is set aside and for the errors pointed out the judgment is reversed and the cause remanded.

Opinion approved by the Court.


author: PER CURIAM.

text:
    Leport WALTON, Appellant, v. The STATE of Texas, Appellee.
    No. 32608.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1960.

      No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   PER CURIAM.

This purports to be an appeal from a conviction for .a violation of the liquor laws, with punishment assessed at a fine of $300.

The record before us does not reflect that a notice of appeal was given and entered of record, as required by Art. 827, C.C.P.

In the absence of a notice of appeal the jurisdiction of this court does not attach.

The appeal is dismissed.


text:
    Foster VANCE, Appellant, v. The STATE of Texas, Appellee.
    No. 35210.
    Court of Criminal Appeals of Texas.
    Jan. 16, 1963.
    Rehearing Denied Feb. 27, 1963.
    Billy C. Powell, Houston, J. Robert Harris (On Appeal Only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Carol S. Vance, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for murder without malice, under Art. 802c, Vernon’s Ann.P.C.; the punishment, confinement in the penitentiary for five years.

The evidence was undisputed that on the day in question the appellant, while driving his Chevrolet truck upon the North Freeway, a public street and highway in the city of Houston, was involved in a collision with a Falcon station wagon driven by the deceased. The accident occurred in that portion of the freeway for incoming traffic which contained four lanes, and at the time of the collision both vehicles were traveling in the same direction. In the collision the deceased sustained a crushed skull, which was the cause of his death.

Proof was made by the state that the first impact between the two vehicles was after appellant’s truck had run into the curb of the esplanade, skidded 114 feet, and struck the left side of the vehicle driven by the deceased with its right front fender.

This was denied by appellant and the witness Benjamin Taylor, a passenger riding in appellant’s truck, who both testified that it was the Falcon automobile driven by the deceased which first struck the left rear wheel and fender of the vehicle driven by appellant.

Three city officers who went to the scene of the collision and investigated the accident testified that after they arrived they observed the appellant; that he had the odor of alcohol on his breath; that he talked with a thick tongue and was unsteady on his feet. Each officer expressed the 'opinion that appellant at such time was intoxicated.

A blood specimen taken from appellant with his consent, upon being examined by Chemist Floyd McDonald, was shown to contain .14 per cent alcohol. Chemist McDonald testified that a person with such percentage of alcohol in his blood is deemed to be intoxicated.

As a witness in his own behalf, appellant admitted having consumed one can of beer prior to the collision, but denied that he was intoxicated. His denial of intoxication was supported by the testimony of his companion, Taylor, and by other witnesses who testified that they had observed appellant prior to the collision.

The jury by their verdict resolved the disputed issues against the appellant, and we find the evidence sufficient to support the conviction.

Appellant predicates his appeal upon two claimed errors.

He first contends that the court erred in refusing to grant a mistrial after state’s counsel inquired of investigating officer Williams as to the whereabouts of a missing witness, Marvin Cochran, who appeared upon the scene after the collision and had purportedly given a statement to the officer.

The record reflects that the court sustained .appellant’s objection to the inquiry and instructed the jury not to consider the questions propounded and that the officer did not disclose to the jury the contents of any statement made, to him by the witness. Under the record we perceive no reversible error in the court’s refusal to grant a mistrial.

Appellant further contends that the court erred in overruling his objection to a question propounded by state’s counsel on cross-examination of appellant’s witness, James Dobkins, who had testified that appellant’s general reputation was good when counsel asked: “Have you heard that he was charged with rape and sodomy back in 1956?” Appellant’s objection was on the ground that the matter inquired about was too remote and thst the question as to his merely being charged with such offenses was not admissible.

A character witness who has attested the good reputation of an accused may, as affecting the weight, credibility, and sincerity of his testimony, be asked on cross-examination if he had heard of acts of misconduct of the accused which were inconsistent with that reputation. Duhart v. State, 167 Tex.Cr.R. 150, 319 S.W.2d 109, and Linton v. State, Tex.Cr.App., 346 S.W.2d 320. Such inquiry was not subject to the objection of remoteness. Richardson v. State, 154 Tex.Cr.R. 422, 228 S.W.2d 179. Nor was the inquiry subject to the objection that the act of misconduct inquired about had not resulted in a final conviction, as required by Art. 732a, Vernon’s Ann. C.C.P., for impeachment of an accused. As was pointed out in Wiley v. State, 153 Tex.Cr.R. 370, 220 S.W.2d 172, such inquiry is not made to impeach the accused as a witness but to test the weight and credibility of his character witness. In permitting such inquiry, the court did not err.

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

Opinion approved by the Court.


text:
    David Charles FERGUSON v. STATE.
    No. 35548.
    Court of Criminal Appeals of Texas.
    March 6, 1963.
    Appeal from Criminal District Court No. 3, Dallas County; Joe B. Brown, Judge.
    Charles W. Tessmer, Dallas, (on appeal only) for appellant.
    Henry Wade, Dist. Atty., George Milner and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is an appeal by an inmate of the penitentiary in a proceeding for the purpose of correcting clerical error in the entry of the judgment and sentence he is serving.

Appellant concedes that no judgment has been entered nunc pro tunc from which an appeal lies.

The appeal is dismissed without prejudice to the trial court’s entry of such order as he may find proper for the purpose of correcting clerical errors in the minutes of his court, and to the right of the appellant herein to appeal from such nunc pro tunc order.


text:
    Clifton Elbert HILL, Appellant, v. The STATE of Texas, Appellee.
    No. 32614.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1960.

      No attorney on appeal for appellant.
    Charles J. Lieck, Jr., Dist. Atty., Jack Paul Leon and Har-ry A. Nass, Jr., Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   PER CURIAM.

This purports to be an appeal from a conviction for burglary with intent to commit theft, with punishment assessed at three years in the penitentiary.

The record before us does not reflect that a valid notice of appeal was given in the trial court, as required by Art. 827, C.C.P.

In the absence of a notice of appeal this court is without jurisdiction to entertain an appeal of this case.

The appeal is dismissed.


author: BELCHER Commissioner. MORRISON, Judge

text:
    Flemin GASKIN, Appellant, v. The STATE of Texas, Appellee.
    No. 35209.
    Court of Criminal Appeals of Texas.
    Jan. 30, 1963.
    Rehearing Denied March 13, 1963.
    No attorney on appeal, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Carol S. Vance, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER Commissioner.

The offense is possession of marijuana; the punishment, four years.

Officer Gray, of the Narcotics Division of the Houston Police Department, testified that about 6 P.M., May 20, 1959, while accompanied by Officer Stringfellow, they went to an upstairs garage apartment; and that when he was almost to the top of the outside stairway he could smell the strong odor of what he believed was burning marijuana coming from the apartment. From the top of the stairway and through a screen door, the wooden door being open, he saw the appellant, Lorenzo Jackson, Paley Graves and Willie Stevenson seated around a coffee table with a shirt box on top of it and little piles of green substance around it. They had cigarette papers and were rolling cigarettes out of this green substance which in his opinion was marijuana, and the appellant “had rolled a cigarette up and was punching the end of the cigarette,” and “I walked in and took the cigarette out of Gaskin’s (appellant) right hand,” and took possession of the green substance which would make 45 or 50 cigarettes like the ones they had rolled.

The testimony of 'Officer Stringf ellow was substantially the same as that of Officer Gray.

In his written statement offered in evidence by the state, the appellant stated that shortly after he arrived at a friend’s house, and while “we” were rolling marijuana cigarettes, the officers came and took all the marijuana on the coffee table and one marijuana cigarette which he had.

The contents of the cigarette and the green substance were offered in evidence and a chemist who had made an analysis of them testified that they were marijuana.

Testifying in his own behalf, the appellant stated that he had gone to the apartment of Lorenzo Jackson to help him prepare for a civil service examination. After he had been there about ten minutes, Willie Stevenson came into the apartment carrying a box. Appellant denied having or seeing any marijuana until the arrival of the officers who opened the box Stevenson had brought; that he had never seen the marijuana cigarette before the trial which the state claims that he had in his hand. He further testified that the facts related in the written statement introduced by the state that he had any marijuana were not true, and that he signed it because the officers whipped and abused him, and he offered other testimony to support his charge of abuse.

The appellant called Jackson and Graves who testified that the first time they saw any marijuana in the apartment was when Gray opened the box Stevenson had brought and (Gray) said that the substance in it was marijuana. Although both, on cross-examination, admitted they had been convicted on their pleas of guilty to possession of the same marijuana.

The involuntary character of the written statement was submitted to the jury.

The evidence is sufficient to sustain the conviction.

No brief has been filed on behalf of the appellant. The question of the entry of the officers being unlawful is controlled by the companion case of Stevenson v. State, 169 Tex.Cr.R. 431, 334 S.W.2d 814. There we said:

“Appellant resided elsewhere, and is in no position to complain that the entry of the officers into the apartment building without a search warrant was unlawful.”

Stevenson v. State, supra, and the cases there cited are applicable and controlling.

The judgment is affirmed.

Opinion approved by the Court.

MORRISON, Judge

(concurring).

I concur in the affirmance of this conviction but, because of the recent holdings of the Supreme Court of the United States in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and Jones v. U. S., 362 U. S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 1 cannot agree that appellant had no standing to complain of the search. I do, however, find that the evidence is sufficient to show that this search was made with the consent of Willard Henry. Officer Gray testified, in the absence of the jury, that Henry told him that he owned the apartment, exhibited a key to him, was with Gray and String-fellow at the time of the search, and gave them permission to enter.

The court heard the conflicting testimony of Henry and decided the issue of consent against appellant.