author: STEAKLEY, Justice.

text:
    John W. MULLEN et al., Petitioners, v. J. C. ROBERTS, Respondent.
    No. B-412.
    Supreme Court of Texas.
    Jan. 17, 1968.
    Rehearing Denied Feb. 14, 1968.
    Lancaster Smith, Harvey L. Davis, Dallas, for petitioners.
    Andress, Woodgate & Condos, William Andress, Jr., Dallas, for respondent.
   STEAKLEY, Justice.

Petitioners, John W. Mullen, et al, plaintiffs below, are two individuals and two corporations who sued Respondent, J. C. Roberts, defendant below, for damages. The suit was filed on June 23, 1964, and the defendant was duly served with citation. On July 24, 1964, the defendant filed an answer in the form of a general denial and a Motion for Discovery and Production of Documents. On June 2, 1965, the plaintiffs demanded a jury and paid the jury fee. On December 15, 1965, the case was set for trial on the jury docket for the week of February 14, 1966. On March 17, 1966, the attorney of record who had filed the answer and discovery motion for the defendant filed a motion to withdraw as his attorney. This motion was granted by the court and the defendant was “granted leave to obtain counsel should he so desire.” On March 21, 1966, the court entered judgment against the defendant, there being no objection in his behalf to the withdrawal of the case from the jury. The judgment was as follows :

“ON THIS, the 21st day of March, 1966, came on to be heard the above-entitled and numbered cause, wherein John W. Mullen, Waldo S. Powell, Transcontinental Leasing Corporation and Airlines Industrial Design Engineering Services, Inc., are Plaintiffs, and J. C. Roberts is Defendant, and came the Plaintiffs, through their attorney of record, but the Defendant, though duly and regularly advised of said hearing and the time and place thereof according to law, appeared not, but wholly made default, and the said Defendant has wholly neglected and/or refused to join issue with Plaintiffs under the direction of the Court within the time prescribed for them to do so, and in this regard have additionally made default; and the Court, after consideration of the evidence, the exhibits, and argument of counsel, is of the opinion that judgment should be rendered for Plaintiffs, John W. Mullen, Waldo S. Powell, Transcontinental Leasing Corporation and Airlines Industrial Design Engineering Services, Inc., in the sum of - Dollars ($10,446.25), against the Defendant, J. C. Roberts, plus interest on the said amount of $10,446.25 at the rate of six per cent (6%) per annum from March 21, 1966, until paid.
“IT IS, ACCORDINGLY, ORDERED, ADJUDGED AND DECREED that Plaintiffs, John W. Mullen, Waldo S. Powell, Transcontinental Leasing Corporation and Airlines Industrial Design Engineering Servces, Inc., have and recover of Defendant, J. C. Roberts, the sum of $10,446.25, plus interest at the rate of six per cent (6%) per annum from March 21, 1966, until paid, and for all costs of suit.
“If Defendant, J. C. Roberts, has not satisfied this Judgment within thirty (30) days of the date of this Judgment, execution shall issue for the collection of the amount of this Judgment, in addition to all other writs and processes which may be necessary to collect same.”

On September 8, 1966, the defendant appealed by petition for writ of error and the Court of Civil Appeals reversed the judgment and remanded the cause for trial by jury of the issue of damages. In so doing, the Court of Civil Appeals ruled favorably for the defendant on two points; first, the demand of the plaintiffs for a jury inured to the defendant who was entitled to have a jury ascertain the damages to which the plaintiffs were entitled; and, second, the judgment was at variance with the pleadings. 417 S.W.2d 74.

On the same date the Court of Civil Appeals announced its decision in this cause, it also did so in W. E. Grace Manufacturing Company v. Green, 417 S.W.2d 71. The suit there was by an employee for personal injuries against his employer. The employee demanded a jury and paid the jury fee. The employer-defendant failed to appear or answer after due service. A default judgment in favor of the employee was entered by the court after hearing without a jury. The employer subsequently appealed by writ of error, and the Court of Civil Appeals reversed the default judgment and remanded the cause for a jury trial on the issue of damages. The Court of Civil Appeals was of the view there, as here, that the right to a jury accorded to a party who demands a trial by jury and pays the required jury fee inures to all other parties to the suit. We granted writ of error and by opinion delivered January 3, 1968, in cause No. B-350, Green v. W. E. Grace Manufacturing Company, 422 S.W.2d 723, we held that in the default judgment situation there presented it is incumbent on a party not demanding a jury and paying the jury fee to object to the withdrawal of the case from a jury, absent which a trial to the court will be upheld. This decision rules the instant case where the judgment was nihil dicit carrying more strongly an admission of the justice of the plaintiff’s cause of action. See Spivey v. Saner-Ragley Lumber Company, 284 S.W. 210 (Tex.Com.App.1926); Howe v. Central State Bank, 297 S.W. 692 (Tex.Civ.App., writ ref’d 1927); Storey v. Nichols, 22 Tex. 87; Gilder v. McIntyre, 29 Tex. 89.

We look, then, to other points before the Court of Civil Appeals before reversing the judgment of that court. See Walker v. Texas Employers’ Insurance Association, 155 Tex. 617, 291 S.W.2d 298. The Court of Civil Appeals sustained defendant’s point of error asserting that the joint judgment in favor of the four plaintiffs does not conform with the pleadings. As mentioned before, the plaintiffs are two individuals and two corporations who severally sued defendant for damages with each alleging separate causes of action grounded on fraud or breach of contract. They did not allege a joint cause of action. The plaintiff, Trans Continental Leasing Corporation, claimed damages in the separate sums of $8,333.33, $503.77, $800 and $650 on its alleged causes of action; the plaintiff, Airlines Industrial Design Engineering Services, Inc., claimed damages in the separate sums of $1,500, $35 and $650 on its alleged causes of action; and the plaintiffs John W. Mullen and Waldo S. Powell claimed damages in the sums of $20,000 and $3,000 on their alleged causes of action. Notwithstanding the absence of allegations in the plaintiffs’ petition supportive of a joint recovery against the defendant, the judgment runs jointly in their favor and does not purport to preserve the rights of each of the plaintiffs in the total recovery or to relate any portion to the particular and separate cause of action asserted severally by the plaintiffs.

Rule 40, Texas Rules of Civil Procedure, authorizes the joinder in one action of multiple plaintiffs asserting any right to relief jointly, severally, or in the alternative under certain circumstances which we will assume are present here. But the rule further provides that in such cases judgment may be given for one or more of the plaintiffs according to their respective rights to relief and such was not done here. See also Rule 301. In Mayhew and Isbell L. Co. v. Valley Wells Truck Growers’ Ass’n, 216 S.W. 225 (Tex.Civ.App.1919, no writ), the joinder of twenty plaintiffs asserting several demands in a suit for damages was held to be proper “especially under our liberal practice.” The judgment, however, awarded the aggregate amounts found to be due the twenty plaintiffs and the court did not include findings as to the separate items making up the total amount of the judgment. This was held to be error, the court holding that “The proper judgment on the pleadings and proof would have been one awarding each member separately such damages as he proved that he sustained, and it was error to add such several damages together and award the 20 plaintiffs a joint judgment for the same.” The court went further and denied the contention “that damages which in their very nature are several in character can be described as joint in the pleadings and permitted to sustain a joint judgment.” See in accord First National Bank v. Crossett, 268 S.W. 997 (Tex.Civ.App.1925, no writ), the court saying of the suit of the multiple plaintiffs that they prayed for judgment severally, and not jointly, and were entitled to the one, but not the other, either under the law or under the pleadings and prayer. See also in accord Wilson v. Deschner, 11 N.J.Misc. 609, 167 A. 670: “The state of demand does not support” the joint judgment; and Caton v. Flig, 343 Ill.App. 99, 98 N.E.2d 162. “If several plaintiffs properly join but their causes of action are separate and distinct and their damages may be different, the judgment should not be for an aggregate sum but should segregate and award to each the damages or relief to which he is properly entitled.” Freeman on Judgments, Vol. 1, 5th ed., par. 100, p. 174, citing Mayhew and Isbell L. Co. v. Valley Wells Truck Growers’ Ass’n, supra.

It is the rule that both a default judgment and a judgment nihil dicit must accord with the pleadings. Storey v. Nichols, 22 Tex. 87; Goodlett v. Stamps, 29 Tex. 121: “[A]nd, like a judgment by default, the amount and terms of the judgment [nihil dicit] must be ascertained by reference to the petition”; Atkinson v. Shelton, 160 S.W. 316 (Tex.Civ.App., writ ref’d). See also Continental Oil and Gas Production Co. v. Austin, 17 S.W.2d 1114 (Tex.Civ.App.), where it is said that the term “judgment by default” is now generally applied to a default made after an appearance, as well as before.

The error in the judgment in the respects we have discussed is disclosed by the papers on file, and relief therefrom may be obtained by the defendant in this appeal by writ of error. See McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706. The judgment is not subject to correction or modification by this court under the record. There were no findings of the court as to the separate items composing the total amount of the judgment, and there is no statement of facts. As to the latter, the transcript contains a certificate of the official court reporter that no testimony was reported by her in the cause.

The judgment of the Court of Civil Appeals is affirmed.


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    James L. ATKINS, III, Appellant, v. The STATE of Texas, Appellee.
    No. 40560.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1968.
    Second Rehearing Denied Feb. 21, 1968.

      Darrell G. Lochte, Kerrville, for appellant.
    G. F. Steger, County Atty., Columbus, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION ON MOTION TO REINSTATE THE APPEAL AND ON REHEARING

MORRISON, Judge.

It has now been shown that sentence was imposed and the appeal is reinstated.

Our prior opinion on motion to reinstate the appeal is withdrawn, and the following substituted in lieu thereof.

Trial was had before the Court without the intervention of a jury, and in such cases it will be presumed that the Court ignored any inadmissible evidence. See cases collated in our opinion in Garrett v. State, 165 Tex.Cr.R. 328, 307 S.W.2d 270. It is also presumed that the Court ignored improper remarks or argument of State’s counsel. Widener v. State, 159 Tex.Cr.R. 257, 262 S.W.2d 401.

His principal ground urged by brief and in argument is that the State’s evidence shows that he was innocent, and therefore, the evidence is insufficient to support the Court’s finding of guilt. Appellant did not testify in his own behalf and only recalled two State’s witnesses in rebuttal.

There is no question but that the collision occurred in the daytime on appellant’s left hand lane of the two lane highway and that he struck an on-coming Volkswagen traveling in its proper lane, killing all four of its occupants. He seeks to justify his passing by excerpts from the testimony of two State’s witnesses which he construes as establishing that the Volkswagen was not in sight when he started around the first car which he sought to pass, and by the time it came in view the car which was in front of the car he intended to pass slowed up, thus closing the gap and rendering his return to his right lane impossible. As we view the evidence, it supports the trial court’s finding that such did not occur.

The highway patrolman who investigated the accident testified and the pictures of the highway illustrate that the collision occurred on a straight, level section of the highway midway between two crests which were more than a mile apart. In Woychesin v. State, 159 Tex.Cr.R. 451, 249 S.W.2d 203, we said:

“The view we take of the evidence is that, even though the State’s witnesses did not see deceased in the street until immediately before the accident, this is not significant because they were under no duty to do so, while appellant was under such a duty.”

One of the State’s witnesses who was proceeding in the same direction as appellant testified that appellant passed him, returned to his right lane of traffic, then passed two more cars, again returning to his right lane and was in the process of passing three other cars at the time the fatal collision occurred. This testimony alone, if accepted by the Court as credible, is sufficient to support the Court’s finding of guilt.

It is true that two of the State’s witnesses testified at one juncture of their examination that they saw no apparent danger in appellant’s act of passing at the time he started his pass, which was in conflict with their earlier testimony and in conflict with other testimony. However, the rule is set forth in 57 Tex.Jur.2d Trial Sec. 572, p. 330, as follows:

“The court in a nonjury trial is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it may believe all, none, or a part of the testimony of any witness. The judge must weigh the evidence as a whole, giving it the probative force he believes it is entitled to, harmonizing, so far as possible, conflicting testimony, and crediting or disbelieving witnesses in the light of conditions and circumstances under which their testimony was offered.”

In deference to earnest counsel’s argument, we will discuss his ground of error as raised in the brief.

We find no evidence of any atmosphere of intense prejudice in the courtroom during appellant’s trial. Had this been a trial before a jury, then several of appellant’s objections that certain evidence was repetitious should have been sustained, but as stated above, this Court has held that in a trial before the Court it will be presumed that he did not consider evidence which was inadmissible. The fact that the State called more witnesses and put on more testimony than was required to make out a prima facie case has never, so far as we know, been held to constitute reversible error.

We overrule appellant’s contention that there was a fatal variance between the information and the proof. There was no motion to quash the information. While not approved as a form, the information alleged that appellant “was then and there in the performance of an unlawful act, to-wit, the said James L. Atkins III was then and there unlawfully driving and operating a motor vehicle upon the left side of a public highway there situate when not overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement; nor when the right half of said roadway was closed to traffic while under construction or repair; nor when said roadway was divided into three marked lanes of traffic under the rules applicable thereon; nor when roadway was designated and signposted for one-way traffic which said highway was a width of not more than one line of traffic in each direction, and at which time there was approaching in the opposite direction on said highway another vehicle in which Jose Fuentes, Jr., was an occupant * * * ”

The proof amply supported such and shows a violation of Section 56 of Article 6701d, Vernon’s Ann.Civ.St.

We decline to agree with appellant that the facts shown establish a case of excusable homicide.

We find no error in the introduction of the pictures. No bodies or blood were shown. The picture of the mother and her son who later died was admitted without objection.

We find no error in the admission of the evidence that appellant admitted on the scene and before being placed in custody that he was the driver of the Pontiac which was shown to have been licensed under his name. Daigle v. State, 166 Tex. Cr.R. 623, 317 S.W.2d 739.

Finding no reversible error, the judgment is affirmed, and appellant’s motion for rehearing is overruled.


author: BELCHER, Judge.

text:
    Jose Angel CAVAZOS, Appellant, v. The STATE of Texas, Appellee.
    No. 40897.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1968.
    Rehearing Denied Feb. 21, 1968.
    Garcia & Warburton, by O. B. Garcia, Brownsville, for appellant.
    F. T. Graham, Dist. Atty., A. G. Betan-court, Asst. Dist. Atty., Brownsville, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

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

Appellant’s first ground for reversal in his brief is that the trial court erred in permitting Dr. Delavega, who performed the autopsy, to testify to the position of the deceased and the appellant at the time of the killing. The ground being that it invades the province of the jury.

Dr. Delavega, a pathologist, testified that in performing an autopsy upon the body of the deceased, he found four gunshot wounds: That one entered the right temple at the hairline passing downward through the head, and lodging in the left side of the neck; and he expressed the opinion that from the “small marks, black-like dots, black dots” around the entrance wound in the right temple that it was a close-up type wound; (2) that he found another bullet wound in the back of the left shoulder, the bullet travelling down, and toward the right through the aorta and chest lodging in the right side under the arm; (3) that another bullet entered the right side going horizontally through the liver, the diaphragm, and lodging in the left side; and (4) that the other bullet entered the chest, perforated the heart going downward, and was found in the stomach.

Dr. Delavega expressed the opinion that the deceased was most likely standing or lying on the floor when the bullet entered the right side and lodged in the left side; that the deceased could have been bending down or stooping over when the bullet penetrating the heart entered the body; that it was possible for the deceased to have been lying on the floor when the bullet entered the right temple; and that it was possible that the deceased was shot from behind because the bullet entrance was in the back.

Dr. Delavega further expressed the opinion that three of the bullet wounds were fatal; and it was stipulated that they caused the death of the deceased.

On cross-examination, Dr. Delavega testified in part as follows:

“Q Yes, but suppose the deceased, at the time that the wound which you have described as entering on the right side of the temple near the hairline and having been extracted from the soft tissue near the left jaw or neck — suppose that the person on whom that wound was inflicted was going on all fours toward a person who was on the ground, too, shooting at him, wouldn’t that also be a possible position at the time of the infliction?
“A You mean the deceased going—
“Q Yes, walking on all fours toward the person who shot him, and that the person shot him and the bullet went in there (indicating) and came out here (indicating). Couldn’t that have been just as possible as the other way?
“A Yes.
“Q That is right. And also, as to those others that occurred on the right side that were taken out of the subcutaneous tissue on the left side—
“A Yes.
“Q. —could have happened also while the body might have been in that position, the body of the deceased, shot at from another angle; isn’t that correct? In other words, what I’m getting at, it could have been three or four or five positions in which the body of the deceased and the body of the person who shot him could have been that would have produced the types of wounds that — the trajectory of the wounds which you have described; isn’t that correct?
“A You have to take the two points.
“Q Yes, but those two points—
“A The entrance and the end.
“Q That is correct. But that does not mean that he was shot from top to below; it could have been if he was in this position (indicating), the shot could have gone in here (indicating) and came out here (indicating), couldn’t it?
“A Yes.”

4 Branch (2) 339, Sec. 2027, in part reads:

“A physician who did not see the transaction is not entitled to attempt to reproduce it before the jury by stating his opinion as to the position of the parties and the manner in which he thinks the injuries were received.” .

The appellant testified that on going toward the nickelodeon in the tavern he first saw the deceased standing nearby and the deceased said, “What happened?” as he (deceased) made movements like taking a pistol out of his pocket and he shot him; that they began grappling and the deceased kicked him and threw him to the floor; that the deceased on his “all-fours” started toward him and he shot him, but does not know how many times; that after he shot the deceased, the deceased grabbed his hand while with the other hand he was trying to pull something from his pocket and he shot the deceased again; then as he left the tavern he met Officer Lima who asked, “What happened ?” and he told him that, “I got La Cuerda. He was going to get me,” and gave Lima his pistol. The appellant further testified that he did not know which one of the shots hit the deceased in the head, in the chest, or in the back of the shoulder.

The testimony shows that the .32 caliber pistol which the appellant gave Officer Lima contained six spent shells.

While testifying, the appellant admitted shooting the deceased several times with a pistol. The detailed testimony of the pathologist showing the point of entry of the four bullets into the body and the trajectory of the bullets was admitted without objection, and to this testimony there appears no dispute. The testimony of the pathologist was uncertain as to any fixed and definite position of the body at the time either of the four wounds were inflicted. In view of the record, we conclude that the admission of the testimony complained of is not such error as to call for a reversal.

The refusal to grant a new trial is urged as error on the alleged grounds of jury misconduct.

The motion for new trial alleged that during their deliberations the jury sent a note to the court reading as follows: “If we set a maximum of years to serve can we set a minimum to serve,” which clearly indicates that they discussed the time appellant actually would serve if a certain punishment was assessed, and also discussed the applicability of the parole law. •

To support the motion, he attaches the affidavit of one of his attorneys which states that he mailed each juror a letter asking if the jury discussed the time the appellant would serve if assessed certain punishment, and if he would sign an affidavit to that effect; that only one juror contacted the attorney but he refused to sign an affidavit for the reason he did not know who began such discussion.

At the hearing on the motion, six jurors including the foreman testified.

From their testimony it appears that the note was sent to the court to clarify some question that arose about the maximum and the minimum punishment set out in the charge for murder with and without malice, and whether they were to fix both. Also, the time he would have to serve on certain punishment assessed was discussed, but the foreman cautioned that this was not a matter for them to consider, and they were referred to that portion of the court’s charge so instructing them. No juror purported to know or state the law applicable to the time to be actually served when certain punishment was assessed.

The trial court did not abuse its discretion in refusing to grant the motion for new trial on the above grounds.

Error is urged on the ground that the trial court erred in overruling appellant’s objection to the state’s argument to the jury that Irma Gomez was the only witness with guts enough to testify to exactly what she saw.

The argument, the objection thereto, and the action of the court thereon were as follows:

“(By State’s Counsel) Then the next witness that the State used, of course, was Irma Gomez. And, gentlemen, let me say this right now: In this particular case, I think all of us, — I’m talking about the men here — ought to take our hats off to Irma Gomez. She is the only witness who came into this courtroom and told you exactly what she saw.
“Now, we had one, two, three, four, five other witnesses that came into this courtroom and testified, all of whom were present when this happened, and she’s the only one that had guts enough to come in here and testify to exactly what she saw.
“Appellant’s Counsel: I’m going to object to that interpretation, Your Honor. There’s nothing been shown that any of the other witnesses lacked guts to come in here. They were sworn and testified.
“The Court: All right, now, I’m going to instruct the jury to make their own observations and their own recollection with respect to that objection, but the objection, as such, would be overruled.
“Appellant’s Counsel: Note our exception.”

The witness Gomez, an employee of the tavern in which the killing occurred, testified that she saw the appellant shoot and continue to shoot the deceased with a pistol until it started clicking when “nothing else would come out,” and then the appellant walked out of the tavern.

In appellant’s brief he states that: “Raul Vargas, Federico Garcia, Jesus H. Gracia, Jorge Garcia Vasquez and Eusebio Rodriguez, all offered by the State, failed to state how the killing occurred.” These witnesses were present when the shooting began.

The interpretation and final resolve of the testimony being with the jury, the argument complained of in light of the objection, the court’s instruction, and all of the testimony of the witness Gomez and that of the other five witnesses does not, under the record, reveal any reversible error.

The refusal of appellant’s requested charge on his right to arm himself is urged as a ground of error.

In refusing the requested charge, the court noted that it was covered in the main charge.

There appears no material difference between the requested charge and that given in the court’s main charge. The refusal was not error.

It is pointed out that the court, in submitting self-defense, charged on real, apparent and threatened danger as it reasonably appeared to the appellant from his standpoint; and the court also charged on his right to continue to shoot.

The court’s charge placed no limitation upon appellant’s right of self-defense. Unless the court’s main charge places-a limitation upon the accused’s right of self-defense, a charge as to the right of the accused to carry arms is not required. 4 Branch (2) 453, Sec. 2129; Pierson v. State, 160 Tex.Cr.R. 567, 272 S.W.2d 901.

The judgment is affirmed.


author: DICE, Judge.

text:
    Antonio VERA, Appellant, v. The STATE of Texas, Appellee.
    No. 41031.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1968.

      Eugene Coffey, Corpus Christi (On Appeal Only), for appellant.
    Sam L. Jones, Dist. Atty., W. DeWitt Alsup, Asst. Dist. Atty., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for assault with intent to murder; the punishment, twenty years.

Appellant, an indigent defendant, was represented at the trial by court-appointed counsel and, following return of the jury’s verdict and entry of judgment thereon, his present counsel was appointed by the court to represent him on appeal.

One ground of error is urged by appellant, which is, in substance, that he was not adequately represented by counsel at the trial.

Reliance is had upon the decision of the Supreme Court of the United States in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, which held that the right to assistance of counsel, under the Sixth Amendment to the Constitution of the United States, was made obligatory upon the States by the Fourteenth Amendment.

Rodriguez v. State, 170 Tex.Cr.R. 295, 340 S.W.2d 61, is also relied upon by appellant, in which case a majority of this court reversed the conviction of an indigent defendant upon a finding that the record as a whole disclosed that, due to the inexperience of court-appointed counsel, the rights of the accused were not adequately protected.

In the instant case, appellant presents no proof as to the legal background or experience of his court-appointed counsel at the trial but insists that from a reading of the statement of facts “it is obvious” that he was not adequately represented. Reference is made in his brief to certain exhibits and testimony offered in evidence by the state to which he contends counsel should have made an objection. He also insists that counsel should have objected to the prosecution “leading its own witness,” but does not point out any instance when such objection should have been made. Lastly, in his brief, appellant insists the record reflects that his counsel could not hear the testimony of the witnesses, could not understand their testimony, and once or twice had to be told to consult with his client in a lower voice.

The four hundred sixty-three-page record on appeal in this case reflects that appellant’s trial covered four days. Fifteen witnesses were called to testify, ten on behalf of the state and five — including the appellant — in his behalf.

The issue of self-defense raised by appellant was submitted to the jury in the court’s charge.

Numerous obj ections, approximately twenty-three in number, were made by appellant’s counsel to testimony offered. Some of the objections were on the ground of leading questions.

The court sustained some of the objections and overruled the others. The exhibits offered by the state were properly admitted by the court after proper predicate was laid.

The state’s witnesses were fully cross-examined by appellant’s counsel. While his counsel stated during the trial that he was “a little hard of hearing,” there is no indication that he did not fully understand the testimony presented.

Under the record, it is concluded that appellant was adequately represented by counsel and that his ground of error should be overruled. It is so ordered.

In this connection it should be noted that in the recent case of Johnson v. State, Tex. Cr.App., 421 S.W.2d 918, opinion delivered November 1, 1967, we said:

“The constitutional right to counsel does not mean errorless counsel and counsel is not to be judged ineffective by-hindsight. Fletcher v. State, Tex.Cr. App., 396 S.W.2d 393.”

The judgment is affirmed.


text:
    James RAE, Appellant, v. The STATE of Texas, Appellee.
    No. 40989.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1968.

      Lee Nowlin, W. Frank Gaston, Plain-view, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is under Art. 353b, P.C., for escapting from jail; the punishment, one and a half years’ confinement in the Texas Department of Corrections.

The indictment, omitting the formal parts, charged:

“ * *' * that on or about the 18th day of June, A.D. 1966, and before the presentment of this indictment, in the County and State aforesaid, James Rae, while a prisoner having formally been charged with the felony offenses of Burglary and Receiving and Concealing Stolen Property, as the same is set forth in indictments duly filed with the district clerk of Hale County in Cause numbers 5048, 5049, 5050, 5051, 5052, 5054 and 5055, and while confined in a prison, same being a county jail designed by law for the keeping of persons under custody under process of law, did then and there unlawfully attempt to escape and did escape such confinement * *

Appellant predicates his appeal upon five grounds of error, urged in his brief filed in the trial court.

In his first ground of error, appellant complains of the court’s action in overruling his motion to require the state to try the cases pending against him “in their regular order in the due course of the business of the Court.” Appellant insists that the state should have been required to first try the seven cases alleged in the indictments under which he was being confined before trying him in the instant case for the offense of escaping jail. In substance, it is appellant’s contention that the court erred in calling the case for trial out of numerical order.

The matter of calling cases for trial on the docket is within the discretion of the trial judge. Sowers v. State, Tex.Cr.App., 248 S.W.2d 949, and Wechsler v. State, Tex.Cr.App., 361 S.W.2d 379. We perceive no abuse of discretion. The ground of error is overruled.

In his second ground of error, appellant insists that the court erred in refusing to sustain his exception to the indictment “because the indictment did not allege that appellant was in jail upon accusation or indictment or by virtue of or because of the indictments in Cause Nos. 5048, 5049, 5050, 5051, 5052, 5054 and 5055.”

We overrule the ground of error, as a reading of the indictment refutes appellant’s contention. The allegations of the indictment sufficiently charged an offense, under Art. 353b, supra.

In his third ground of error, appellant insists that he was not sufficiently identified as being the person charged in the seven cases named in the indictment.

The record reflects that the indictments in the seven cases against James Rae were introduced in evidence as state’s exhibits #11 through #17. The indictments were filed in each case on April 18, 1966.

The indictments in Cause #5048 through #5052 charged the offense of burglary and the indictments in Cause #5054 and #5055 charged the felony offense of receiving and concealing stolen property.

Detective Lieutenant Ben Moorman, of the Plainview police department, testified that he had occasion to work on the cases, that he appeared before the grand jury, and that appellant was the same James Rae indicted “on these burglaries.”

Sheriff Troy Porterfield testified that on June 18, 1966, appellant was confined in the Hale County jail “on a burglary charge,” and at the time of trial was out on bond “on those charges.”

The witness Frank Russell testified that on June 18, 1966, he was deputy sheriff of Hale County, that he was acting as jailer, and that on such date the appellant was a prisoner confined in the jail. He further related testimony showing appellant’s escape.

The proof was sufficient to identify the appellant as the person charged in the indictments in the seven cases and being confined in jail as a prisoner under said charges at the time of his escape.

In his ground of error #4, appellant insists that the court erred in failing to instruct the jury that they could not consider “the seven cases of burglary and receiving and concealing stolen property as any evidence of defendant’s guilt.” .

No objection was made to the charge on such ground nor was any request made by appellant for such a charge. In the absence of an objection to the charge, or a requested charge, appellant’s complaint is not before this court for review. King v. State, Tex.Cr.App., 414 S.W.2d 935; Eldredge v. State, Tex.Cr.App., 284 S.W.2d 734.

We observe that the evidence that appellant was under indictment in the seven cases was admissible to prove one of the main issues in the case and need not be limited. Moss v. State, Tex.Cr.App., 364 S.W.2d 389.

In his ground of error #5, appellant complains of certain jury argument of state’s counsel, the cumulative effect of which he insists deprived him of a fair and impartial trial.'

In this ground of error appellant attempts to join in one complaint some nine separate and distinct remarks made by the district attorney, some being made in his closing argument on the issue of guilt or innocence and the others in his argument on the issue of punishment.

Art. 40.09, Sec. 9, C.C.P., requires that the brief of the defendant “shall set forth separately each ground of error of which defendant desires to complain on appeal.” See Johnston v. State, Tex.Cr.App., 418 S.W.2d 522, 527, and also Ward v. State, No. 40,856, opinion delivered January 10, 1968, not yet reported.

Under the record, appellant’s complaint to jury argument is not properly before us for review. We have, however, examined such argument and find nothing which should be considered as unassigned error, under the authority of Sec. 13 of Art. 40.-09, supra.

The judgment is affirmed.


author: WOODLEY, Presiding Judge. ONION, Judge.

text:
    Walter Lee COBBINS, Appellant, v. The STATE of Texas, Appellee.
    No. 40972.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1968.

      Emmett Colvin, Jr., Dallas (On Appeal Only), for appellant.
    Henry Wade, Dist. Atty., John Vance, Curtis Glover and Kerry P. Fitzgerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is rape; the punishment, life.

Three grounds of error are set forth in appellant’s brief. Ground 1 complains that the charge to the jury at the hearing on punishment is fundamentally defective in that it authorizes the jury to find that appellant had been previously convicted of a felony.

The state did not seek the death penalty. Appellant filed application for probation and elected to have the jury assess the punishment.

The charge attacked is that portion which referred to the application for probation and instructed the jury as to the necessity of finding, in their verdict, if they desired to recommend probation, “that the defendant has never before been convicted of a felony in this or any other state.”

The charge was in strict accordance with Art. 42.12, Sec. 3a, Vernon’s Ann.C.C.P., in effect at the time of the trial, and the above quoted language appears both in the statute and in the charge.

The ground of error is overruled.

The second ground of error is: “The indictment is fundamentally defective in that, the prosecutrix being age 14 years at the time of the alleged act, it fails to allege that the prosecutrix is not the wife of the defendant.”

The indictment alleging rape by force and threats, ground of error No. 2 is without merit. Lee v. State, 169 Tex.Cr. R. 300, 334 S.W.2d 289.

Ground of error No. 3 complains that: “The admission of in-court identification of the accused, without first determining that such identification was not tainted by an illegal lineup but was of independent origin, violated appellant’s rights under the Sixth and Fourteenth Amendments to the Constitution of the United States.”

No authorities are cited and no argument is advanced in support of this ground of error. If reliance be on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, which we conclude have no application under the facts before us, see Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. Ground of error No. 3 is overruled.

The judgment is affirmed.

CONCURRING OPINION

ONION, Judge.

I concur in the results reached. As I view it, however, appellant’s claim of due process violation as set forth in his ground of error #3 is independent of the exclusionary rules announced in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, which were fashioned to deter law enforcement authorities from exhibiting an accused to witnesses prior to trial for identification purposes without notice to and in the absence of counsel absent an intelligent waiver by the accused.

Wade and Gilbert, of course, have no application to confrontations, lineups, or showups conducted prior to June 12, 1967, as was the one in the case at bar. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. Therefore, the trial court did not err in admitting the in-court identification of the accused, without first determining that such identification was not tainted by an illegal lineup but was of independent origin.

Nevertheless, as we recently recognized in Graham v. State, Tex.Cr.App., 422 S.W.2d 922 (Jan. 17, 1968) it remains open to all persons to allege and prove that the confrontation, lineup, or showup resulted in such unfairness that it infringed his right to due process of law. See also Stovall v. Denno, supra, Palmer v. Peyton, 359 F.2d 199 (C.A. 4th 1966). This is a recognized ground of attack upon a conviction independent of rules announced in Gilbert and Wade.

The prosecuting witness was the only witness who made an in-court identification of the appellant as the person who had assaulted and raped her on the date in question. On direct examination the prosecuting witness testified, without objection, that on June 11, 1965, several hours after the alleged rape occurred, she viewed a lineup at the Dallas Police Station which consisted of four Negro males. She revealed that appellant was the third man in the lineup and that at no time prior to viewing the lineup did anyone inform her that the appellant would be one of the persons included therein. Further, the record does not reflect that this witness was shown a photograph of the appellant or that he was exhibited singly to her as in Palmer v. Peyton, supra, and Barnes v. United States, 124 U.S.App.D.C. 318, 365 F.2d 509, 511, 512 (1966). Further, there is no showing that the law enforcement authorities took any action to suggest to this witness that the appellant in their minds was the guilty party.

While it is true that the prosecuting witness could not recall the size of the men in the lineup, when the “totality of circumstances” surrounding the confrontation is considered together with the fact that the witness had an adequate opportunity to view the appellant at close range during the commission of the offense, there is nothing in the record before us to indicate that her identification in open court of the appellant was the result of any suggestive influence of the police. This appellant has not been deprived of due process. Graham v. State, supra.

I concur.


text:
    Wayne SATTERWHITE, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 41010.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1968.
    John F. Evans, Breckenridge, for appellant.
    T. J. Rodgers, Dist. Atty., Graham, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

This is an appeal from an order revoking probation.

On July 26, 1963, appellant was convicted, upon his plea of guilty and waiver of trial by jury, of the offense of burglary and his punishment was assessed at confinement in the penitentiary for a term of five years.

Execution of sentence was suspended and appellant was placed upon probation upon certain terms and conditions.

Among the conditions imposed by the court upon appellant was that he “(a) Commit no offense against the laws of this or any other State, or the United States.”

On June 16, 1967, an amended motion to revoke appellant’s probation was filed by the state, alleging that appellant had violated the terms and conditions of his probation, among them being that he “ ‘not commit an offense against the laws of this or any other State of the United States.’ ”

In support thereof, it was alleged that during the period of probation appellant had been convicted of simple assault in Cause No. 4835 in Stephens County, Texas, on May 16, 1966; that on January 30, 1967, he was convicted of disturbing the peace, in Cause No. 5369, in Stephens County, Texas; and that on April 21, 1967, the said defendant was convicted of “minor in possession” in Stephens County, Texas.

On July 18, 1967, after a hearing, the court entered his order revoking the probation upon a finding that appellant had violated the terms thereof by having committed certain offenses against the laws of this state for which he was convicted in the Justice Court of Stephens County, Texas, in Cause Nos. 4835, 5369, and 5597.

At the hearing, proof was offered by the state which showed that on the 16th day of May, 1966, appellant was convicted in Justice Court, Precinct No. 1, of Stephens County, upon a plea of guilty, in Cause No. 4835, of the misdemeanor offense of simple assault; that on January 30, 1967, he was convicted in the same court in Cause No. 5369, upon a plea of nolo contendere, of the offense of disturbing the peace; and that on April 21, 1967, he was convicted, upon his plea of guilty, in Cause No. 5597, of the offense of “Minor in Possession of Beer.”

We are not impressed with appellant’s contention that the state should not have been permitted to make proof of the conviction in Cause No. 5597 because the number of the case was not alleged in the state’s amended motion to revoke probation and because of variance between the pleading and the proof in the description of the offense for which he was convicted. No exception was filed by appellant to the state’s motion to revoke.

It is insisted that the court abused his discretion in revoking the probation because the record shows that appellant was not represented by counsel when convicted in the three cases utilized by the state to revoke the probation.

While the record shows that appellant was not represented by counsel in the three cases, proof was offered by the state through the testimony of Justice of the Peace Dodds and Deputy Sheriff Ragland that, in the cases, appellant was advised of his right to counsel, and waived the services of an attorney.

Appellant, by his testimony, raised a disputed issue of such fact — which was for the trial judge to resolve.

It should be noted that the three convictions of appellant were for misdemeanor offenses for which the punishment was by fine, only. We are aware of no decision by the Supreme Court of the United States granting to an accused the right to appointment of counsel under the decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, in a misdemeanor case. Cf. Winters v. Beck, 385 U.S. 907, 87 S.Ct. 207, 17 L.Ed.2d 137; De Joseph v. Connecticut, 385 U.S. 982, 87 S.Ct. 526, 17 L.Ed.2d 443. Under the provisions of Art. 26.04 of our Code of Criminal Procedure, a court is only required to appoint counsel for an indigent accused where he is charged with a felony or a misdemeanor punishable by imprisonment.

Under the record we find no abuse of discretion in the court’s action in revoking the probation.

The judgment is affirmed.


author: ONION, Judge.

text:
    Leandro GUTIERREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 40984.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1968.
    Rehearing Denied Feb. 21, 1968.

      William C. McDonald, San Angelo, for appellant.
    Royal Hart, Dist. Atty., San Angelo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Cattle Theft; the punishment, two (2) years confinement in the Texas Department of Corrections.

Appellant presents two grounds of error. He contends that the trial court erred in failing to charge the jury, after proper objection, on the law of circumstantial evidence. We cannot agree.

Domingo Zammora, an accomplice witness, testified clearly and concisely as to the appellant’s active participation in the theft of the cow.

Zammora related how he, the appellant, Henry Rodriquez and Joe Acosta were riding around in appellant’s automobile drinking beer on the night of March 22, 1967, when they all saw the cattle in the stock pens in question and decided “to kill one.” He described how he and appellant remained by the automobile while the other two men entered the pens after which he heard shots. He testified that all four of them rolled and dragged the cow that was taken a considerable distance before the cow was placed in the trunk of appellant’s automobile shortly before the arrival on the scene of a police officer.

It is well established in theft cases that if there is direct evidence from any source of the taking of the property by the defendant from the possession of the person in whom possession is laid, the case does not in a legal sense rest wholly on circumstantial evidence, and a charge on circumstantial evidence is not in that event required. 5 Branch’s Ann.P.C.2d Ed., Sec. 2667, p. 113.

The fact that the only direct evidence of defendant’s guilt comes from an accomplice witness does not require the court to charge on circumstantial evidence. White v. State, Tex.Cr.App., 385 S.W.2d 397; Oakley v. State, 152 Tex.Cr.R. 361, 214 S.W.2d 298; Wampler v. State, 28 Tex.App. 352, 13 S.W. 144; Williams v. State, Tex.Cr.App., 45 S.W. 494; Rios v. State, 39 Tex.Cr.R. 675, 47 S.W. 987; Rios v. State, Tex.Cr.App., 48 S.W. 505; Martinez v. State, 61 Tex.Cr.R. 29, 133 S.W. 881; Johnson v. State, 72 Tex.Cr.R. 387, 162 S.W. 512; Forward v. State, 73 Tex.Cr.R. 561, 166 S.W. 725; Lopez v. State, 92 Tex.Cr.R. 97, 242 S.W. 212; James v. State, 99 Tex.Cr.R. 395, 269 S.W. 788; Humphrey v. State, 110 Tex.Cr.R. 306, 8 S.W.2d 143; Owen v. State, 114 Tex.Cr.R. 576, 26 S.W.2d 251; Blalock v. State, 116 Tex.Cr.R. 615, 33 S.W.2d 452.

Next, appellant contends the trial court erred in admitting into the evidence testimony concerning the discovery of the cow in the trunk of appellant’s automobile since the same resulted from an illegal search.

George Alexander testified that on the night in question, while driving past the stock pens of the prosecuting witness, he observed what appeared to be a dead black and white cow in the middle of the road. Upon his approach he saw a man run towards the stock pens and three other men jump into a nearby automobile and drive off at high speed. Alexander related that he lost the car after a chase at speeds ttp to 90 miles per hour when the car extinguished its lights. After arriving home he reported his observations to the police.

Subsequently Fred Deats, a police officer for the city of San Angelo, upon receiving a report from the dispatcher went to victim’s stock pens at approximately 9 p. m. He observed only one car in the vicinity, a half mile from the pens on the same road, parked partially across the public roadway, a traffic violation. As he approached he observed four men around the car drinking beer. The trunk of the automobile was partly open and he could “see something black and hairy inside.” After having determined from appellant, whom he identified as being present, that the automobile belonged to him, Deats caused them to open the trunk where he discovered a dead black and white cow. Thereafter he had the four men unload the cow and after taking the automobile license number and the names of all men, whom, with the exception of appellant, he knew personally, Deats permitted them to leave. The prosecuting witness arrived at the scene shortly thereafter and identified the dead cow as his. He testified that this cow was in his pens and alive at feeding time just a few hours before the discovery of its body in the trunk of appellant’s car.

It seems to be appellant’s principal contention that since no arrest was made at the time, that the search was invalid and the fruits thereof were inadmissible.

The State, however, does not seek to justify the search as one incident to a lawful arrest. They contend that an automobile on proof of probable cause, may be legally searched without a search warrant. We agree. See Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; 51 Tex.Juris.2d, Searches and Seizures, Sec. 10, pp. 669, 670. Under thqse authorities the test of the validity of the search is whether the searching officers had probable cause. They do not have to arrest the defendant as a condition of making the search. They may search, find the contraband, and then arrest.

From the information he had received and from what he observed upon arriving at the scene there can be no question that Officer Deats had probable cause for a search of the trunk of appellant’s automobile. Certainly he was entitled to believe that unless the vehicle be searched immediately it and its contents would be removed beyond the reach of the officers.

While the record do^s not explain the officer’s action in failing to detain appellant and his companions after the search and seizure, we cannot conclude that this fact would render inadmissible the fruits of the search.

It should also be noted that objections to a search are waived when fruits of the search are introduced without objections. Gonzales v. State, 167 Tex.Cr.R. 433, 320 S.W.2d 837; Kanaziz v. State, Tex.Cr.App., 382 S.W.2d 485; Watson v. State, 172 Tex.Cr.R. 274, 355 S.W.2d 533; Grundstrom v. State, Tex.Cr.App., 363 S.W.2d 945; Melancon v. State, Tex.Cr.App., 383 S.W.2d 604. Photographs of the dead cow were introduced into evidence without objection.

The judgment is affirmed.


text:
    Samuel J. ANDERSON, Sr., Appellant, v. The STATE of Texas, Appellee.
    No. 41067.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1968.
    R. J. Balch, Seymour, for appellant.
    Clyde Whiteside, Dist. Atty., Seymour, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

This is an appeal from an order revoking probation.

A prior appeal, in our Cause No. 40,963, was dismissed for want of a sentence imposed after revocation of probation. Anderson v. State, Tex.Cr.App., 421 S.W.2d 667.

Following issuance of mandate, sentence was imposed upon the appellant, to which he duly excepted and gave notice of appeal to this court.

We will dispose of the appeal upon the record presented in the two causes.

On January 17, 1967, appellant was convicted in the District Court of Knox County, upon his plea of guilty and waiver of trial by jury, of the offense of felony theft and his punishment was assessed at confinement in the Texas Department of Corrections for three years.

Imposition of sentence was suspended by the court and appellant was placed on probation upon certain terms and conditions. Among the conditions imposed was that appellant “(a) Commit no offense against the laws of this State or of any other State or of the United States.”

On April 28, 1967, a motion was filed by the state, alleging that appellant had violated the terms and conditions of his probation and praying that the same be revoked.

In the motion it was alleged that:

“ * * * on or about the 19th day of April, 1967, [the defendant] did consume alcoholic beverages and was found in a state of intoxication in Hardeman County, Texas, and did on the 27th day of April, 1967, on another occasion consume alcoholic beverages and was found in a state of intoxication and was on both occasions charged with being drunk in a public place.”

At the hearing on May 5, 1967, Officer Steve Podrovitz testified that on April 19, 1967, he observed appellant under the influence of intoxicating liquor in a public place in the town of Quanah, Hardeman County, Texas. He further testified that on such date appellant pleaded guilty to the offense of being drunk in a public place and paid a fine in the Corporation Court of the city of Quanah.

The witness Vernie Feemster testified that on April 27, 1967, appellant was in his place of business in Knox City with another person, playing pool. The witness stated that on such occasion appellant was drinking whisky out of a coke bottle, and expressed the opinion that he was under the influence of alcohol.

Sheriff H. C. Stone testified that he observed appellant at the pool hall on April 27, 1967, and expressed his opinion that on such occasion he was under the influence of liquor. The sheriff further testified that appellant, during the “past two months,” had not reported to him as his probation officer.

Testifying in his own behalf, appellant admitted the charge of being drunk in Hardeman County, as alleged in the state’s motion, but denied being drunk on the occasion of April 27, 1967.

The court, after hearing the evidence, entered his order revoking the probation, upon a finding that appellant had violated the terms and conditions thereof.

Under the record, the court did not abuse his discretion in revoking the probation.

The judgment revoking probation is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Ex parte David JACKSON.
    No. 41097.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1968.

      Daylee Wiggins, Beaumont, for appellant.
    W. C. Lindsey, Dist. Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is a petition for writ of habeas corpus attacking the sentence pronounced in Cause No. 1844S in Criminal District Court of Jefferson County on March 21, 1952, in which the punishment for burglary of a private residence was enhanced under Art. 63 P.C., one of the prior convictions being in Cause No. 13472 in which petitioner was, on May 9, 1939, convicted in said court of the offense of burglary of a private residence.

The judge of the court in which the convictions were had, after a hearing, found that petitioner was not represented by counsel in said Cause No. 13472; that he was indigent and too poor to employ counsel; that the right to counsel was not waived; that trial by jury was not waived and that there was no specific request that counsel be appointed.

Upon such findings, the judge conducting the hearing correctly concluded that petitioner was entitled to relief. Ex parte Williams, Tex.Cr.App., 420 S.W.2d 931; Ex parte Stevenson, Tex.Cr.App., 422 S.W.2d 733, and cases cited.

The trial judge correctly notes that the punishment for burglary of a private residence may not be enhanced under Art. 62 P.C. by reason of one prior conviction. Heard v. State, Tex.Cr.App., 416 S.W.2d 427, and cases cited.

The petition for writ of habeas corpus is granted and it is ordered that petitioner be released from further confinement in the Department of Corrections and remanded to custody of the Sheriff of Jefferson County to answer indictment in Cause No. 18445 in Criminal District Court.


text:
    Ex parte Wayne Phillip HAM.
    No. 41006.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1968.

      James E. Faulkner, Coldsprings, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The appeal is from an order entered in a habeas corpus proceeding remanding appellant to custody for extradition to the State of California where he stands charged by “complaint, warrant” with the crime of “Robbery and attempt to kill a human being with malice aforethought.”

The sufficiency of the Executive Warrant, issued October 16, 1967, by Preston Smith, Acting Governor of Texas, upon requisition of the Governor of the State of California, containing the recitation that it had been made known by the Governor of California that appellant stood so charged, is challenged.

Authorities relied upon by appellant relate to Executive Warrants reciting that the person sought to be extradited stood charged in the demanding state by information with a crime which in this state would be a felony and could not be prosecuted upon an information. Ex parte Ivy, Tex.Cr.App., 419 S.W.2d 862, cites Ex parte Doyal, 167 Tex.Cr.R. 83, 318 S.W.2d 642; Ex parte Cooper, 163 Tex.Cr.R. 642, 295 S.W.2d 906; Ex parte Parker, Tex.Cr.App., 390 S.W.2d 774; Ex parte Goodwin, Tex.Cr.App., 384 S.W.2d 874; Ex parte Gardner, 159 Tex.Cr.R. 365, 264 S.W.2d 125.

The rule applied in the above cases has no application to the case before us, appellant not being charged by information but by complaint. Ex parte Young, Tex.Cr.App., 397 S.W.2d 74; Ex parte Stanley, Tex.Cr.App., 377 S.W.2d 650; Ex parte Fisher, 168 Tex.Cr.R. 336, 327 S.W.2d 579. See also Ex parte Powers, Tex.Cr.App., 391 S.W.2d 413, and Ex parte Powers, Tex.Cr.App., 391 S.W.2d 414.

The introduction of the Executive Warrant, regular on its face, made a prima facie case for extradition which was not overcome by other evidence. Ex parte Sawyers, Tex.Cr.App., 409 S.W.2d 424; Ex parte Young, Tex.Cr.App., 397 S.W.2d 74; Art. 51.13, Sec. 3, Vernon’s Ann.C.C.P.

The judgment remanding appellant to custody for extradition under the Executive Warrant is affirmed.


author: PRESLAR, Justice.

text:
    Truman Cleo SMITH et al., Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 5915.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 27, 1967.
    Rehearing Denied Jan. 24, 1968.
    Dan Sullivan, Andrews, for appellants.
    Albert Smith, Lubbock, for appellee.
   OPINION

PRESLAR, Justice.

This is a summary judgment case in which appellee was plaintiff seeking declaratory judgment that it was not obligated to defend one who borrowed the car of its insured. The issue was whether or not the borrower was outside the .scope of the permission granted in the use of the insured’s car when it was involved in a collision.

Appellants’ first point of error is that the court erred in considering the amended motion for summary judgment because the same was not timely filed. We are of the opinion that this point is well taken, and that this cause should be remanded for trial on the merits.

Plaintiff Allstate filed this suit seeking declaratory judgment. In due course it filed a motion for summary judgment, which was not granted. Trial was then had before a jury, and at the conclusion of the evidence plaintiff moved for a directed verdict, which the court denied, and entered its written order so denying the motion. The matter was submitted to the jury upon special issues and, the jury being unable to agree, the court dismissed the jury and entered an order declaring a mistrial. Plaintiff then filed a pleading styled “Plaintiff’s Motion For Judgment”, in which it “moves the Court to set aside the Order declaring a mistrial in this cause, sustain the plaintiff’s Motion For A Summary Judgment, sustain the plaintiffs Motion For An Instructed Verdict, and enter a Judgment for the plaintiff * * The plaintiff then filed its amended motion for summary judgment, a hearing was had, the court granted the motion, and from such judgment this appeal is taken. In addition to the above pleadings, there is mention in the record of a motion by plaintiff to withdraw the case from the jury and instruct them to return a verdict for the plaintiff.

Appellants rely on the case of Clevenger v. Liberty Mutual Insurance Company, 396 S.W.2d 174, ref. n.r.e. (1965), in support of their first point of error. In that case the Court of Civil Appeals at Dallas held that a motion for summary judgment filed at a point in the proceedings similar to the one before us was not timely filed. In that case the jury was unable to agree and was discharged, but no order of mistrial was entered, and thereafter the plaintiff filed a motion for summary judgment, and the defendant re-urged a prior motion for an instructed verdict which the court granted. On appeal, the plaintiff (as appellant) assigned as error the failure of the court to grant it motion for summary judgment. In passing on the point, the court said:

“In the first place, we do not believe that appellant’s motion for summary judgment was timely filed. While it was made under the provisions of Rule 166-A, T.R.C.P., and such rule does provide that a motion for summary judgment may be made ‘at any time after the adverse party has appeared or answered,’ said rule is a part of Rule 166, T.R.C.P., which governs pre-trial procedures and appears in a section of the rule designed as ‘Section 8 — Pre-Trial Procedure.’ Said Rule 166-A, T.R.C.P. is modeled substantially after Rule 56 of the Federal Rules of Civil Procedure. Since the Texas rule is modeled on the federal rule we believe that federal decisions construing the purposes for engrafting a summary judgment technique into American jurisprudence are relevant. We find numerous federal cases reflecting the idea that the practice was designed to enable the trial court to make prompt disposition of lawsuits which by their very nature were susceptible of conclusion in summary fashion, without the necessity of resorting to all the procedures involved in a plenary trial. New Hampshire Fire Ins. Co. v. Scanlon, 362 U.S. 404, 80 S.Ct. 843, 4 L.Ed.2d 826; Sartor v. Arkansas Natural Gas Corp., 5th Circuit, 134 F.2d 433; Whitaker v. Coleman, 5th Circuit, 115 F.2d 305; Securities & Exchange Commission v. Payne, Dist.Ct., Southern District, New York, 35 F.Supp. 873.
“McDonald, in his treatise, ‘Texas Civil Practice,’ Cumulative Supplement, Vol. 4, § 17.26.2, concludes that under the provisions of Rule 166-A of the Texas Rules of Civil Procedure, said motion should be filed and called to the attention of the court ‘in advance of trial.’ Of course, the trial court may defer until a later time his disposition of the motion timely filed. This is often done, as illustrated by the decision of the Fifth Circuit in Woods v. Robb, 171 F.2d 539.
“The very essence of the summary judgment rule is to avoid the necessity of a trial on the merits. To say that a motion may be timely filed after the case has been completely tried before a jury is to defeat the very purpose of the rule.”

It is readily apparent that the case before us is different in that this appeal is from an order granting a summary judgment, but we agree with the holding that a motion for summary judgment will not lie after a case has been completely tried before a jury, absent material changes. Specifically, we hold in this case that the motion for summary judgment was not timely filed because it followed a motion for directed verdict, by the same party, which had been denied. In that connection it should be noted that there was no material difference in the matters relied on for the directed verdict and the motion for summary judgment. In effect, plaintiff got a second bite at the apple, and we do not think that the court should have been called upon to again rule on the same matters that it had previously determined. Perhaps the strongest argument for our position is that there should be some finality in the disposition of a case. While it can logically be argued that, following the declaration of a mistrial, the case is then back in the “pre-trial” stage, this is not true, in the sense and purpose of the rule, to avoid the necessity of a trial on the merits by looking to the affidavits, pleadings and depositions of the parties. Rule 166-A says, “No oral testimony shall be received at the hearing”. At the stage of proceedings following a mistrial, the court will have heard witnesses testify orally, observed their conduct and demeanor as they were examined and cross-examined, and it will have passed on their credibility and possibly examined documents and physical objects introduced in evidence, as well as other matters not intended to be before the court on summary judgment. We think the better construction of that portion of the rule providing that motion for summary judgment may be made “at any time after the adverse party has appeared or answered”, to be that it sets the earliest time at which the motion may be made, and that it is not a blanket provision which includes the post-trial period. Particularly, it should not be construed to cover the time following the overruling of a motion for instructed verdict, which for all practical purposes serves the same purpose in the post-trial procedure as the summary judgment serves in the pre-trial stages.

We sustain appellants’ first point of error, and such action makes it unnecessary to consider the other points presented.

The judgment of the trial court is reversed and the case remanded for trial.


author: PER CURIAM.

text:
    UVALDE ROCK ASPHALT COMPANY et al., Relators, v. Hon. Walter LOUGHRIDGE et al., Respondents.
    No. 14684.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 3, 1968.

      Dobbins, Howard & Harris, San Antonio, for appellants.
    Denman, Franklin & Denman, Clemens, Knight, Weiss & Spencer, San Antonio, for appellees.
   PER CURIAM.

On Petition for Writ of Mandamus.

Relators, Uvalde Rock Asphalt Company, a Texas Corporation, H. Randolph Brown, and William K. Clark, seek a writ of mandamus ordering the Honorable Walter Loughridge, Judge of the 37th District Court of Bexar County, to set aside his interlocutory order for discovery entered in Cause No. F-193984 pending in the District Courts of Bexar County, and to enjoin respondents John H. White, Joella White Bitter et vir, Evelyn White Thomson et vir, and R. L. White, from attempting to act under authority of said order. Relators urge that said order is void and the trial judge is without jurisdiction to cause it to be entered because the effect of said order is to award the plaintiffs in Cause No. F-193984 substantially all of the relief sought by them in said original suit in violation of Relators’ constitutional right to a jury trial.

Respondents, except Judge Loughridge, filed Cause No. F-193984, wherein they alleged that they owned 16% of the stock in Relator corporation and prayed for an order directing and enjoining Relators to give them immediate access to all books, records, minutes, records of shareholders and other books and records of the corporation. Rela-tors answered that plaintiffs did not seek said requested order for a “proper purpose” as required by Art. 2.44 of the Texas Business Corporation Act, Vernon’s Ann.Civ.St., and timely made their demand for jury trial. Relators thereafter filed motion for discovery under Rule 167, Texas Rules of Civil Procedure, seeking an inspection of the corporation records to aid them in preparing for trial of this cause. On December 26, 1967, the Hon. Walter Loughridge entered an order requiring Relators to produce by January 8, 1968, and permit the inspection by Respondents of the corporation’s books, accounts and other material as set forth in sub-paragraphs 1-14 of said order. It is seen that said order requires the production of all corporate records, with the exception of those pertaining to the rock asphalt phase of said corporation, which records could be withheld if this phase could be segregated and separated from the other records of the corporation.

The jurisdiction of the Court of Civil Appeals to grant a writ of mandamus is limited to the enforcement or protection of its jurisdiction, or to compel a district judge to proceed to trial and judgment. Arts. 1823, 1824, Vernon’s Ann.Civ.St.; Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959); 8 S.W. Law Journal, pp. 389, 393; 38 T.L.R. 638, 641.

Relators urge that this Court has jurisdiction under the provisions of Art. 1824, Vernon’s Ann.Civ.St., in that the action of the judge in granting plaintiffs substantially all the relief sought in their original suit leaves nothing to be tried and is tantamount to the judge’s refusal to proceed with a jury trial on the controverted issue. See Guaranty Old Line Life Co. v. McCallum, 97 S.W.2d 966 (Tex.Civ.App. — Dallas 1936, no writ); Roberts v. Munroe, 193 S.W. 734 (Tex.Civ.App. — Austin 1917, writ dism’d). It is seen that both of these cases arose prior to the adoption of Rule 167, supra.

There is nothing in this record to indicate any refusal on the part of the trial court to try this case and render judgment therein. Rather, Relators seek to have this Court grant a writ of mandamus to overturn the discretion of the trial court in permitting discovery under Rule 167, supra. We have“no jurisdiction to grant such relief. Crane v. Tunks, supra.

The petition for writ of mandamus is dismissed for want of jurisdiction.

CADENA, J., not participating.


author: TUNKS, Chief Justice.

text:
    E. G. LONG, Appellant, v. The STATE of Texas, Appellee.
    No. 60.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Jan. 10, 1968.
    Rehearing Denied Feb. 7, 1968.
    John A. Croom, Houston, for appellant.
    James B. Kershaw, Dist. Atty., Bastrop, for appellee.
   TUNKS, Chief Justice.

This is an appeal from an order of the trial court granting a temporary injunction. Appellant seeks a reversal on two basic grounds: the insufficiency of the notice of the hearing and the vagueness of the language of the order of injunction.

On March 28, 1967, the plaintiff, State of Texas, appellee here, acting through the District Attorney, filed a suit to enjoin the defendant, Long, appellant here, from.operating a bawdy house at a described location in Washington County, Texas. In its prayer, the plaintiff asked for a temporary injunction pending a trial on the merits and a permanent injunction thereafter.

On the same date, March 28, 1967, the district judge signed a show cause order directing the defendant to appear at 9:00 o’clock a. m. on April 7, 1967, and show cause, if any, why the temporary injunction should not be issued. This order had apparently been typed in advance and had blank spaces for showing the hour and day of the hearing. The hour and day were filled in by pen.

Also, on March 28,1967, the district clerk prepared and signed an instrument designated a “writ” directed to the defendant. This “writ” identified the lawsuit by style and number and the subject matter of the plaintiff’s petition. The “writ” also recited that the judge had signed an order directing the defendant to appear on April 7, 1967, at 9:00 o’clock a. m., and show cause why the temporary injunction should not be issued. The “writ” had on it a form for both the “sheriff’s return” and “certificate of delivery.” The form for the “sheriff’s return” was filled in and signed by the sheriff of Washington County, Texas. It recited that it was executed by delivering to the defendant, in person, “a true copy of this writ, having first endorsed thereon the date of delivery, together with a true and correct copy of the plaintiff’s petition and the judge’s fiat. * * * ” on March 28, 1967, at 7: IS p. m. The form for the “certificate of delivery” was also filled in and signed by the sheriff and recited that “this copy of this instrument was delivered to the defendant on March 28, 1967, at 7:15 p. m.”

Counsel for the defendant appeared before the District Court on the morning of April 7, 1967, and filed an instrument designated “Motion of Defendant to Quash Process.” Attached to that motion, as exhibits, were a copy of plaintiff’s petition, a copy of the above described document designated as a “writ” prepared and signed by the district clerk, together with the sheriff’s return and certificate of delivery and a copy of the judge’s fiat — the show cause order — all of which were delivered to the defendant by the sheriff on March 28, 1967, at 7:15 p. m. The problem in.volved arises from the fact that someone, in filling in the hour at which the hearing on the application for temporary injunction was to be held, on what purported to be a copy of the judge’s order, which was served on the defendant, wrote in “9:00 o’clock p. m.” instead of “9:00 o’clock a. m.”

The exact hour at which the defendant’s motion to quash was presented to the judge is not shown by the transcript, the only record we have. No statement of facts was filed. The district clerk’s file mark shows that the motion to quash was filed at 9:30 a. m. The district judge’s order overruling the motion is in longhand at the bottom of the motion and was signed by the judge. It recites that the motion was presented before “hearing of the show cause order” and that it was overruled at 9:35 a. m.

The judge’s order granting the temporary injunction is dated April 7, 1967. It recites that the defendant did not appear in person nor by attorney. The district clerk’s file mark shows that it was filed at 11:30 a. m., April 7, 1967.

No bill of exceptions was filed by the defendant. There is nothing in the record, other than those facts recited above, from which any information relevant to the questions here presented can be had.

While a trial of a petition for permanent injunction requires a citation to be served and returned as ordinary citations, such is not the case with hearings on an application for temporary injunction. The latter may be heard “at such time and upon such reasonable notice given in such manner as the court may direct.” Rule 686, Texas Rules of Civil Procedure. If the defendant, after being served on March 28, 1967, had any question as to when the hearing on the application for temporary injunction was to be held, that question was removed when the judge overruled the motion to quash process. The attorneys for the defendant were in court then and had notice that the judge intended to proceed forthwith with the hearing. Apparently, from the recitations in the judgment, they simply left. If they were aggrieved because of the insufficient time to prepare for the hearing, they should have moved for a continuance.

There is nothing in the record showing that after the judge overruled their motion to quash the service the attorneys for the defendant filed any formal motion for continuance or otherwise asked for a postponement to permit them to prepare for the hearing. It is true the prayer of their motion to quash asked, “that said cause be continued for the term or as otherwise provided by law.” That motion, however, did not recite that defendant had not had adequate time to prepare a defense, that needed witnesses were unavailable, nor that defendant’s counsel was unavailable.

The appellant apparently treats the situation as involving the application of Rule 122, T.R.C.P. It is there provided that, when a defendant’s motion to quash citation or service thereof is granted, the defendant has made a constructive appearance at 10:00 a. m. on the Monday next after 20 days after the citation is quashed and must answer by then. As noted above, however, the hearing on this application for temporary injunction did not require formal citation and service. The trial judge, had he granted the motion to quash, would not have been regulated by Rule 122 in fixing another time for the hearing.

After the trial judge overruled the motion to quash, we believe that the situation was comparable to that in which a trial court permits a party to file a trial amendment to his pleadings. If the opposing party is surprised and needs time in which to prepare to answer or defend against the new pleading, he must move for a continuance or otherwise seek, from the trial court, a postponement before he will be heard to complain on appeal. Texas Power & Light Co. v. Holder, Tex.Civ.App., 385 S.W.2d 873, ref., n. r. e.; 393 S.W.2d 821; Great Am. Life & Health Ins. Co. v. Mayer, Tex.Civ.App., 373 S.W.2d 391, n. w. h.

There is no question here of the court’s jurisdiction over the defendant. Rule 120a, T.R.C.P., is not applicable to this situation so as to permit the defendant to make a special appearance.

The cases cited by appellant wherein it was held error to order a temporary injunction without any notice to the defendant are not in point. The defendant here did have notice.

The appellant next contends that the injunctive order is too vague. Having examined its language, we are of the opinion that it identifies with sufficient clarity the persons enjoined and the activity prohibited.

The judgment of the trial court is affirmed.


author: COLEMAN, Justice.

text:
    The CITY OF HOUSTON et al., Appellants, v. Robert Lee MACKEY, Appellee.
    No. 15119.
    Court of Civil Appeals of Texas. Houston.
    Jan. 18, 1968.
    Rehearing Denied Feb. 8, 1968.

      Wm. A. Olson, City Atty., Homer T. Bouldin, Trial Supervisor, Houston, for appellants.
    Billy H. Ragan, Carey Williams, Houston, for appellee.
   COLEMAN, Justice.

This is a statutory appeal of a Civil Service Commission proceeding affirming an order of the Chief of the Fire Department of the City of Houston indefinitely suspending appellee from the Classified Service of the Houston Fire Department. The District Court set aside the order of the Civil Service Commission and ordered that appellee be reinstated with back pay.

On October 6, 1966, W. O. Hunter, Chief of the Fire Department of the City of Houston, indefinitely suspended Robert Lee Mackey, appellee, from his position as Pipeman and Ladderman in the Houston Fire Department. He properly filed the following statement with the Civil Service Commission and furnished a copy thereof to appellee:

Firemen’s and Policemen’s Civil Service Commission of the City of Houston
W. O. Hunter Fire Chief
October 6, 1966
Indefinite Suspension of Robert Lee Mackey, Pipeman and Ladderman, Houston Fire Department.
In accordance with the provisions of Section 16, Acts 1947, 50th Legislature, page 550, Chapter 325, as amended, commonly known as the Firemen’s and Policemen’s Civil Service Act, you are advised that as of October 7, 1966, I have indefinitely suspended Robert Lee Mackey from the Classified Service of the Houston Fire Department.
Pipeman and Ladderman Robert Lee Mackey has been suspended for acts and conduct in violation of Rule XIII, Section 6, Subsections (d), (e), (k), (1), and (O) of the Firemen’s and Policemen’s Civil Service Rules of the City of Houston, said Section and Subsections reading as follows:
“SECTION 6 — CAUSE OF DISMISSALS AND SUSPENSIONS
“No Fireman or Policeman shall engage in, or be involved in, any one of the following acts of conduct and the same shall constitute cause for the removal from service or the suspension of a Fireman or Policeman;
(d) That the employee has violated any of the provisions of the Charter of the City of Houston or has violated any of the provisions of the Firemen’s Civil Service laws, or the rules and regulations of the Civil Service Commission, or the rules or special orders of the Fire and Police Department;
(e) That the employee has been guilty of acts which amount to an act of insubordination, or to disgraceful conduct, whether such acts were committed while on or off duty;
(k) That the employee has been guilty of any conduct unbecoming to an officer or employee of the City of Houston ;
(l) That the employee has willfully shown lack of good moral character;
(o) That the employee has been guilty of conduct which was prejudicial to good order of the Fire and Police Departments of the City of Houston;”
The following acts and conduct of Pipeman and Ladderman Robert Lee Mackey in violation of the above quoted Section and Subsections of the Firemen’s and Policemen’s Civil Service Rules of the City of Houston are hereby specified in detail :
(1) That on various dates next preceding the date of this indefinite suspension, but all within six (6) months next preceding such date of indefinite suspension, Pipeman and Ladderman Robert Lee Mackey, purchased, or arranged for the purchase from T. C. Sharp of two mink stoles and a color television set, all of which he knew or should have known, were stolen property.
(2) That on or about the 3rd day of October, 1966, Pipeman and Ladder-man Robert Lee Mackey was called to the office of the Fire Chief of the Fire Department of the City of Houston to be questioned concerning his transactions of purchase of the aforementioned items from Fireman T. C. Sharp and while in the office of the Fire Chief, Pipeman and Ladderman Robert Lee Mackey, in the presence of C. P. Price, C. R. Cook, J. S. Little and F. A. Hooker, denied ever having bought anything from T. C. Sharp or having ever made any arrangements for anyone else to buy anything from T. C. Sharp.
Due to the fact that Pipeman and Ladderman Robert Lee Mackey has been guilty of each and every enumerated cause listed above under Section 6 of Rule XIII of the Civil Service Commission Rules governing members of the Fire and Police Departments as outlined above specifically, and that such commissions and omissions were so notorious as to work detriment to the moral and good order of the Fire Department, I have this day indefinitely suspended Pipeman and Ladderman Robert Lee Mackey from the Classified Service of the Houston Fire Department.
A copy of this notification of suspension is being served on Pipeman and Ladderman Robert Lee Mackey and he is informed that he has ten (10) days in which to file an appeal with the Civil Service Commission of the City of Houston.
W. O. Hunter Fire Chief
WOH :RDP :kj c.c. Pipeman and Ladderman Robert Lee Mackey

After a hearing the Commission entered its order which stated that the Commission was of the opinion that the specific charges contained in the order of suspension were true and supported by the evidence, and ordered appellee indefinitely suspended from the Classified Service of the Fire Department of the City of Houston effective as of the close of business on October 7, 1966.

The statement filed by the Fire Chief charges appellee with having purchased property from T. C. Sharp, which he either knew or should have known was stolen, and also that when called into the office of the Fire Chief to be questioned concerning his purchase of two mink stoles and a color television set from T. C. Sharp, he did, in the presence of C. P. Price, C. R. Cook, J. S. Little and F. A. Hooker, deny ever having bought anything from T. C. Sharp or ever having made any arrangements for anyone else to buy anything from T. C. Sharp.

It is clear, we think, that if appellee purchased stolen property from another fireman, knowing it to be stolen property, he would be guilty of conduct unbecoming an employee of the City of Houston, disgraceful conduct, and would have willfully shown lack of good moral character. There is, however, no substantial evidence to show that he purchased, or arranged for the purchase of, property from T. C. Sharp which he knew, or should have known, was stolen property.

There is no specific allegation that ap-pellee was directed by a superior officer to answer questions, or that he was questioned by a member of the Fire Department. While it is alleged that he was called to the office of the Fire Chief to be questioned, it is undisputed that the Fire Chief was not present while he was questioned. The charges are set out in separate numbered paragraphs. In the first paragraph he was charged with purchasing or arranging for the purchase of stolen property. In the second paragraph he was charged with denying that he bought anything or arranged for anyone else to buy anything from T. C. Sharp. In this paragraph there is no specific allegation that the denial was untrue and no reference made to stolen property.

We are of the opinion that the allegations of fact set out in paragraph (2) are insufficient to charge a violation of either of the provisions of Section 6 of the Firemen’s and Policemen’s Civil Service Rules. The statement must allege facts sufficient to charge a violation of one or more provisions of the rule. Since the statement is insufficient to charge a violation of the rule, we do not reach the question of whether or not there is substantial evidence to support such charge. City of San Antonio v. Bill Poulos, 422 S.W.2d 140, (1967).

The judgment of the Trial Court is affirmed.


author: BARRON, Justice.

text:
    Evelyn FRANCIS, Appellant, v. HERRIN TRANSPORTATION CO., Inc., Appellee.
    No. 52.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Jan. 3, 1968.
    Rehearing Denied Jan. 31, 1968.

      Joseph D. Jamail, John Gano, William J. Stradley, Houston, Eugene H. Lawes and Bass & Lawes, Lake Charles, La., for appellant.
    Danny R. Edwards, Houston, for appel-lee.
   BARRON, Justice.

Appellant, Evelyn Francis, widow of Lawrence Francis, deceased, brought this suit for damages by reason of injuries to and the death of her husband which occurred in the State of Louisiana. The suit was brought against Herrin Transportation Co., Inc., appellee here, and alleges general negligence on the part of Herrin Transportation Co., Inc. (hereinafter called Herrin). The accident occurred on April 18, 1966, and appellant filed suit on May 29, 1967, more than one year after the accident and death of Mr. Francis. Suit was filed in the District Court of Harris County, Texas. Herrin, by special exceptions and plea in abatement, contends that the cause of action accrued more than one year before the date of the filing of the petition and of the commencement of this action, and that under the laws of Louisiana where this cause arose, and of which laws the court has heretofore been asked to take judicial notice, an action for wrongful death must be brought within one year from date of accrual of such cause. Appellee contends that the cause here is barred forever under the Louisiana doctrine of peremption. Herrin duly and timely filed motion for judicial notice of the laws of Louisiana as required by Rule 184a, Texas Rules of Civil Procedure.

The trial court, after hearing, granted Herrin’s plea in abatement and dismissed Mrs. Francis’ action, holding in effect that the action was barred by the one-year prescription provisions of Louisiana law, and that the cause was perempted and destroyed after the expiration of one year from the accrual of the cause of action. Appellant, Mrs. Francis, excepted and has properly perfected her appeal to this court.

Appellant’s contentions are that the trial court in dismissing appellant’s cause of action for the death of her husband as being perempted in one year, directly violated the controlling Texas statutes and violated the public policy of this State as expressed by these legislative enactments, to-wit: Articles 4678 and 5526, V.A.T.S. Article 4678 provides that a citizen of Texas or of the United States may seek redress within the Texas limitation period, in a Texas court for damages occurring in another state, if the laws of the other state give such right of action, and provides that procedural matters shall be governed by the laws of Texas. Article 5526 provides for a two-year limitation period from time of death in an action resulting in death.

Appellant is a resident of Louisiana. Appellee is a Delaware corporation doing business in Texas and Louisiana. The injuries for which appellant sued were sustained in Louisiana and this suit was filed and prosecuted in Texas. The substantive laws of Louisiana must control appellant’s rights of recovery, but procedural matters involved will be controlled by the laws of this state. Jones v. Louisiana Western Ry. Co., 243 S.W. 976 (Tex.Com.App.); Grandstaff v. Mercer, 214 S.W.2d 133 (Tex.Civ.App.), writ ref., n. r. e.; Withers v. Stimmel, 363 S.W.2d 144 (Tex.Civ.App.), writ ref., n. r. e.; 12 Tex.Jur.2d 312.

In Louisiana, prescription is similar to our statutes of limitations, while per-emption is a substantive limit on the right of action. Statutes of peremption destroy the cause of action itself. See Succession of Roux v. Guidry, 182 So.2d 109, 110 (La.Ct. of App.), writ ref.; 13 Tulane L.Rev. 39 (footnote).

Appellant seeks to have applied the Texas two-year statute of limitations in this case and states that procedural matters (limitations) are governed by the law of the forum —Texas law. In support of her contention, she cites the case of Home Ins. Co. v. Dick, 15 S.W.2d 1028, 1029 (Tex.Com.App.), reversed, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926. That case involved a contractual action, an insurance policy on a boat totally destroyed by fire at Tampico, Mexico. Suit was filed in Texas after the expiration of one year from the accrual of the action. The policy of insurance in that case provided that no suit could be brought on the policy unless the suit was filed within one year, and sought to apply the law of Mexico’s commercial code to the policy, which provided for a prescriptive period of one year in cases involving contracts of life insurance, sea and land. The prescriptive period in that policy was urged by the insurance company as a peremptive period, and it was contended that the provisions effectively terminated or killed the cause of action under Mexican law. The Commission of Appeals held that the prescriptive periods amounted to nothing more than statutes of limitations, a procedural matter, and that Texas law governed. However, the court did treat the Mexican statutes as peremptive statutes for the sake of argument, and held that in a case of such nature, involving an insurance policy, the result would be the same as against the claimant, a resident of Texas who had the right to rely upon the law of the forum in a Texas action. Moreover, in that case it was never proven just what construction had been placed upon the language of the contract by the Mexican courts. It was further held that the Texas statute prohibiting the shortening of limitation periods by any person, firm or corporation by contract violated the public policy of this State. See Art. 5545, V.A.C.S. In the present case, the plaintiff is a citizen of Louisiana, and there is no agreement or contract shortening any period of limitation or prescription. Only the substantive law of Louisiana is involved.

The governing Louisiana Statute pertaining to actions of this type is as follows :

“Art. 2315. Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair * * *
“The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of (naming beneficiaries) * * *. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. * * * ” (Emphasis added. Parenthesis added).

The above article was amended in 1960 partly to broaden the right to recover damages for wrongful death.

The Texas authority which we believe to be controlling on this question is discussed in State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 67 A.L.R.2d 758. In that case, the right of the State of California to bring suit for reimbursement against a son for sums expended by the state in the care of an indigent parent in a state institution within four years, as against the Texas limitation statute of two years, was recognized in the construction of a similar foreign statute. In that case the Texas Supreme Court said:

“The weight of authority favors the rule or exception to the foregoing general rule that where the statute creates a right and also incorporates a limitation upon the time within which the suit is to be brought, the limitation qualifies the right so that it becomes a part of the substantive law rather than procedural, and that unless suit is brought within the time allowed by statute no right of action can be maintained even though the law of the forum provides for a longer period of limitation. Stumberg Conflict of Laws, 2d Ed. p. 150.”

And, quoting with approval from Theroux v. Northern P. R. Co., 64 F. 84, 86 (8th Cir.), the Supreme Court said:

“Where a statute confers a new right, which by the terms of the act is enforceable by suit only within a given period, the period allowed for its enforcement is a constituent part of the liability intended to be created, and of the right intended to be conferred. The period prescribed for bringing suit in such cases is not like an ordinary statute of limitations, which merely affects the remedy. It follows, of course, that, if the courts of another state refuse to permit the cause of action to be sued upon during a part of the period limited by the foreign law, to that extent they refuse to give effect to the foreign law, and by so doing impair the right intended to be created.”

Whether the law of a sister state extinguishes a right of action or merely affects the remedy, is a question of substantive law to be construed in the light of adjudicated cases of the particular state involved, in this case, Louisiana. Article 2315 of the Louisiana Code, is the sole foundation for a wrongful death action in Louisiana. Hightower v. Dr. Pepper Bottling Co., La.App., 117 So.2d 642, 654. It has been held in many cases, and especially by the latest authority on this question, that the one-year period under Article 2315 involving death actions is one of peremption, not subject to interruption. The one-year period included in the statute, quoted above, seems clearly to be one which limits the cause of action itself. It gives a cause of action for wrongful death only if suit is filed within one year from the death of the person involved. If there is no right of action after one year in Louisiana, then there is no cause of action to be enforced in Texas under our Article 4678. 17 Tex.Jur.2d 646. A condition or limitation of this kind, included within the statute involved, the sole authority for such an action, becomes not one of general limitation, but a part of the substantive law of Louisiana. See State of California v. Copus, supra; 13 Tulane L.Rev. 39; 4 Louisiana L.Rev., pp. 625-626. See Succession of Roux v. Guidry, 182 So.2d 109, writ ref., by the Louisiana Supreme Court in 248 La. 1106, 184 So.2d 27, and cited with approval on October 24, 1966 by the U. S. Court of Appeals, 5th Cir., in Lafargue v. Samuel, 367 F.2d 396; Blanke v. Chisesi, La.App., 142 So.2d 45; Gilmore v. State, La.App., 79 So.2d 192; 53 C.J.S. Limitations of Actions § 30, p. 975; 25A C.J.S. Death § 53 b, p. 737; Bounds v. T. L. James, 124 F.Supp. 563, 567 (W.D.La.,1954); Kennedy v. Trinidad Corp., 349 F.2d 832, 838 (5th Cir.1965); Mejia v. United States, 152 F.2d 686 (5th Cir.1945); and see Guillory v. Avayelles Ry. Co., 104 La. 11, 28 So. 899, 901; Cox v. Louisiana Dept. of Highways, La.App., 11 So.2d 409.

We hold, therefore, that the action filed here, by reason of the death of Lawrence Francis on April 18, 1966, was perempted after the expiration of one year from time of death, and that under the law of Louisiana, the cause of action expired and was destroyed. The view we take of this case makes it unnecessary for us to discuss whether the filing of another suit against alleged joint tort feasors or co-tort feasors tolled or suspended the one-year period, since we have held that a period of peremption admits of no interruption or suspension.

The cases cited by appellant do not involve Article 2315. A death action in Texas is a creature of statute and is not derived from the common law. Blocker v. Brown Express, 158 S.W.2d 347 (Tex.Civ.App,), no writ. There is no common law in Louisiana, and the action of necessity results from the statute. The two-year statute of limitations in Texas, a procedural matter ordinarily to be applied in an action filed m Texas, is not applicable as against the substantive law of Louisiana in this case.

The judgment of the trial court dismissing this action is accordingly affirmed.