author: POPE, Justice.

text:
    MISSOURI PACIFIC RAILROAD COMPANY, Petitioner, v. WHITTENBURG & ALSTON, Respondent.
    No. B-449.
    Supreme Court of Texas.
    Jan. 31, 1968.

      Kleberg, Mobley, Lockett & Weil, Leslie S. Lockett, Corpus Christi, for petitioner.
    North, Blackmon & White, Jack E. A. White, Corpus Christi, for respondent.
   POPE, Justice.

Whittenburg & Alston recovered judgment upon a jury verdict against Missouri Pacific Railroad Company for damages to two carloads of tomatoes they shipped from Laredo, Texas to Toronto, Ontario. On appeal to the court of civil appeals, the carrier urged that the jury findings supported a judgment for the carrier rather than the shipper. The intermediate court reversed the judgment of the trial court but for a different reason, holding that the shipper failed to introduce bills of lading and destination inspection certificates, documents necessary to the shipper’s proof of a prima facie case. The court remanded the cause because it was not fully developed and in the interest of justice. Tex.Civ.App., 417 S.W.2d 489. We granted the carrier’s application for writ of error on its point that the intermediate court should have rendered judgment in its favor. We also granted the shipper’s application on its point that the intermediate court erred in its holding that the shipper failed to prove a prima facie case. We affirm the judgment of reversal, but render judgment for the carrier.

The court of civil appeals erred in holding that the shipper failed to prove a prima facie case. The parties, after entry of judgment, filed a stipulation to avoid the need for a statement of facts and also to narrow the issues on appeal. They agreed that there was evidence presented at the trial which supported each of the jury findings and also that there was evidence which would support a contrary finding. The parties agreed that neither party objected to the charge or requested other or additional issues, instructions or definitions. They further agreed that the only question to be urged on appeal was the nature of the judgment that the trial court should have rendered based upon the jury findings. Rule 370, Texas Rules Civ. Proc.

The basis of the judgment of the court of civil appeals was the shipper’s failure to introduce bills of lading or inspection certificates which the court said were essential to its proof of a prima facie case. In their briefs before the intermediate court, the parties went behind the stipulation with statements of what was and was not offered in evidence. The stipulation foreclosed the court’s going behind the agreement. Any question about the legal sufficiency of the proof in support of the findings was removed from the case by the agreement that the issues were developed from conflicting evidence on the trial. The nature of the judgment the trial court should have rendered on the jury findings was the only question on appeal. See, Guthrie v. National Homes Corporation, 394 S.W.2d 494 (Tex.Sup.1965); Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683 (1951).

The judgment of reversal was, however, a correct one, because the jury finding on the first special issue defeated the shipper’s right of recovery. The trial judge submitted two separate sets of identical issues. The first four issues were submitted with reference to the first carload, and a like set was submitted for the other. We need only set forth the first set, for the applicable principles will govern both. The four issues submitted for the first load and the jury answers were:

“Special Issue No. 1: Do you find * * * that the tomatoes in Car ART No. 50365, upon arrival at Toronto, Ontario, Canada, were in worse condition than they should have been, considering their quality and condition at Laredo, Texas, when the bill of lading was signed, and that they were to be transported in accordance with the provisions of the bill of lading, and Plaintiff’s instructions, and in a reasonably prudent manner as to all matters not covered by the bill of lading or Plaintiff’s Instructions?
Answer: No.
“Special Issue No. 2: Do you find from a preponderance of the evidence that the condition of the tomatoes in Car ART No. 50365 at the time of arrival in Toronto, Ontario, Canada, was due entirely to one or more of the following:
(a) The condition of the tomatoes when the bill of lading was signed at Laredo, Texas;
(b) The operation of natural laws upon such tomatoes;
(c) The inherent tendency, if any there be, of the tomatoes to deteriorate and decay.
Answer: Yes.
“Special Issue No. 3: What do you find from a preponderance of the evidence to be the reasonable cash market value of the tomatoes in Car ART No. 50365, upon arrival in Toronto, Ontario, Canada, at the time and in the condition in which they should have been delivered, considering their quality and condition when the bill of lading was signed at Laredo, Texas, and that they were to be transported from Laredo, Texas, to such final destination in accordance with the bill of lading, and Plaintiff’s instructions, and in a reasonably prudent manner as to all matters not covered by the bill of lading and the Plaintiff’s instructions ?
Answer: $3339.28.
“Special Issue No. 4: What do you find from a preponderance of the evidence to be the reasonable cash market value of the tomatoes in Car ART No. 50365, in the condition and at the time in which such car arrived at Toronto, Ontario, Canada?
Answer: $2,092.23.”

The shipper had the burden of obtaining favorable findings establishing both liability and damages. This court in Missouri Pacific Railroad Co. v. Elmore & Stahl, 368 S.W.2d 99 (Tex.Sup.1963) discussed the nature of the shipper’s and carrier’s respective burdens. The United States Supreme Court affirmed the judgment of this court. 377 U.S. 134, 84 S.Ct. 1142, 12 L.Ed.2d 194 (1964). The question in Elmore & Stahl was not the one presently before us, since it concerned the nature of the burden cast upon the carrier to escape liability once the shipper proved its prima facie case. The United States Supreme Court, however, in the course of its opinion summarized its conclusions about the respective burdens of proof in these words:

“* * * Accordingly, under federal law, in an action to recover from a carrier for damage to a shipment, the shipper established his prima facie case when he shows delivery in good condition, arrival in damaged condition, and the amount of damages. Thereupon, the burden of proof is upon the carrier to show both that it was free from negligence and that the damage to the cargo was due to one of the excepted causes relieving the carrier of liability. Galveston, H. & S. A. R. Co. v. Wallace, 223 U.S. 481, 492, 32 S.Ct. 205, 207, 56 L.Ed. 516, 523; Chicago & E. I. R. Co. v. Collins Produce Co., 249 U.S. 186, 191, 39 S.Ct. 189, 190, 63 L.Ed. 552, 554; Chesapeake & O. R. Co. v. Thompson Mfg. Co., 270 U.S. 416, 420-423, 46 S.Ct. 318, 319-320, 70 L.Ed. 659, 660, 661; Thompson v. James G. McCarrick Co., 5 Cir., 205 F.2d 897, 900.”

The special issues submitted by the trial court did not inquire whether the cargo was delivered to the carrier in good condition and arrived in bad condition, as expressed in Elmore & Stahl. In fact, the shipper urges in its briefs that such a rule imposes a greater burden upon a shipper than the law requires. The shipper urges also in its briefs on appeal that the burden imposed upon it by special issue 1 was too great, and that the trial court misplaced the burden of proof. Those complaints are not properly preserved for review on appeal. However inartful the issue may be, the shipper stipulated that neither party objected to the charge or requested other or additional instructions, issues, definitions or instructions as provided in Rules 272-274, Tex.Rules of Civ.Proc. The shipper waived any objection it may have had to the defects in special issue 1. Rule 272, Tex.Rules Civ.Proc.

The jury’s negative answer to special issue 1 affords no basis for the shipper’s prima facie case of liability. Thus, the shipper turns to the jury findings to special issues 3 and 4 and says that they established both the carrier’s liability and damages. The shipper urges that those issues are in the nature of a general charge; therefore, the answers adequately established its prima facie case. We regard those issues as damage issues and not as liability issues. In our opinion special issue 1 was submitted to determine specifically and directly whether the shipper established a prima facie case of liability and issues 3 and 4 were submitted and understood by the jury as value or damage issues. See Texas & Pacific Railway Co. v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528 (1958) ; Garza v. San Antonio Transit Co., 180 S.W.2d 1006 (Tex.Civ.App.1944, writ ref. w.o.m.).

We conclude, therefore, that the judgment of the court of civil appeals reversing the judgment of the trial court was correct, not because the shipper failed to produce evidence, but because the jury refused, on conflicting evidence, to find for the shipper in response to the liability issue.

The judgment of the court of civil appeals reversed the erroneous judgment of the trial court, but ordered the cause remanded to the trial judge for another trial because the case was not fully developed and in the interest of justice. In Jackson v. Ewton, 411 S.W.2d 715 (Tex.Sup.1967) this court said that the power of an appellate court to remand under Rules 434 and 505, Tex.Rules Civ. Proc., must be exercised “upon a good and sufficient reason for so doing, reflected by the record.” Neither party has suggested the existence of evidence other than that developed during the four days of trial. The stipulation of the parties shows that the only matter preserved for consideration on appeal was the nature of the judgment the trial court should have rendered upon the jury verdict. The record of this case discloses no reason for another trial. Yarbrough v. Booher, 141 Tex. 420, 174 S.W.2d 47, 150 A.L.R. 1369 (1943).

The judgment of the court of civil appeals is modified so as to render judgment that the shipper take nothing, and as so modified, is affirmed.


source: Caselaw Access Project

author: BELCHER, Judge.

license: Public Domain

text:
    Bruce MILLER, Appellant, v. The STATE of Texas, Appellee.
    No. 40913.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1968.

      Donald D. Koons, Dallas, for appellant.
    Henry Wade, Dist. Atty., Joe K. Hendley, Myron Garner and Kerry FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

Upon a trial before a jury, the appellant entered a plea of guilty to the offense of robbery with firearms, and his punishment was assessed at forty years.

It is evident from the record that it is necessary to first consider whether the trial court failed to properly admonish the appellant at the time he entered his plea of guilty as to the consequences of such plea.

After the arraignment of the appellant, the selection of the jury, and the reading of the indictment, the following occurred:

“THE COURT: Bruce Miller, what is your plea?
“THE DEFENDANT: Guilty.
“THE COURT: * * * Under your plea and after having heard the indictment read and having pled guilty, there are some questions and explanations I wish to make. Do you understand that if the State proves their case against you, I will instruct the jury to find you guilty and they will find you guilty, do you understand ?
“THE DEFENDANT: Yes, sir.
“THE COURT: Nobody has frightened you, forced you or threatened you, coerced you or made you plead guilty against your will?
“THE DEFENDANT: No, sir.
“THE COURT: You are not pleading guilty in the hope of a pardon or parole ?
“THE DEFENDANT: No, sir.
“THE COURT: Are you pleading guitly because you are guilty and for no other reason?
“THE DEFENDANT: Yes, sir.
“THE COURT: All right. On your plea of guilty, the Court accepts your plea of guilty and I will instruct the jury at the conclusion of the trial to find you guilty and they will find you guilty as charged in the indictment.”

At the close of the introduction of the evidence, the court instructed the jury to find the appellant guilty of robbery with firearms as alleged in the indictment.

The jury returned its verdict in accordance with the instructions of the court, and assessed the appellant’s punishment at forty years.

The admonition of the appellant by the court before accepting his plea of guilty was substantially the same as that given in Williams v. State, Tex.Cr.App., 415 S.W.2d 917. The disposition in Williams is applicable and controlling in this case. There this court said:

“Though the judgment recites that the defendant was admonished of the consequences of his plea, it is clear from the portion of the record above quoted that in the cause before us the trial court accepted appellant’s plea of guilty without first having admonished him as to the punishment provided by law for the offense charged and the punishment which could be inflicted under his plea.
“Art. 26.13 C.C.P. provides that if the defendant pleads guilty or enters a plea of nolo contendere he shall be admonished by the court of the consequences.
“In Alexander v. State, 163 Tex.Cr.R. 53, 288 S.W.2d 779, we said:
“ ‘It is apparent that the court failed to admonish the appellant as to the consequences of his plea of guilty, that is, the punishment provided by law for the offense charged and the punishment which could be inflicted under his plea.
“ ‘It has been the consistent holding of this court that the provisions of Art. 501, Vernon’s Ann. C.C.P. are mandatory, and that the prerequisites therein set out must be complied with as a condition precedent to the validity of a plea of guilty, and that such question may be raised after conviction.’
“In Braggs v. State, 169 Tex.Cr.R. 405, 334 S.W.2d 793, Judge Morrison said:
“ ‘In accepting appellant’s plea, the court did so in practically the same words as are set forth in our opinion in Alexander v. State, 163 Tex.Cr.R. 53, 288 S.W.2d 779, and which we held failed to properly admonish the accused of the consequences of his plea as required by Article 501, Vernon’s Ann.C.C.P.’
“See also Ex parte Muckelroy, 171 Tex.Cr.R. 616, 352 S.W.2d 835, and Henage v. State, 171 Tex.Cr.R. 541, 352 S.W.2d 122.
“All of the opinions in the cited cases have recognized the rule stated in Alexander v. State, supra. The points upon which the judges have not always been in agreement were whether violation of the rule was shown.
“The record before us was prepared and approved pursuant to Art. 40.09 C.C.P. as á transcription of the reporter’s notes of all trial proceedings.
“The requirements that the court admonish the defendant of the consequences of his plea of guilty are mandatory and the court’s failure to comply with the statute (now Art. 26.13 C.C.P.) may be raised at any time. May v. State, 151 Tex.Cr.R. 534, 209 S.W.2d 606; Alexander v. State, 163 Tex.Cr.R. 53, 288 S.W.2d 779.”

In the event of another trial, the trial court’s attention is directed to Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 and Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429.

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


text:
    Dennis Ray FOXX, Appellant, v. The STATE of Texas, Appellee.
    No. 41041.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1968.

      Billy J. Griswold, Houston, by Court Appointment on Appeal Only, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Malcolm R. Dimmitt, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for the primary offense of burglary for the purpose of committing theft with a prior conviction for burglary alleged for enhancement. The punishment was assessed at twelve years.

The prior conviction as alleged and the identity of the appellant as the same person so convicted was established by stipulation between the state, the appellant in person and his attorney.

The sufficiency of the evidence to support the conviction for the primary offense is challenged.

Clarence J. Dickey, Jr., testified that on May 10, 1966, he was the plant foreman and manager of a waste paper company, which was operated m two buildings, one was used only as an office and the other as a warehouse ; that the office building was enclosed with a cyclone fence which was in good condition; that in response to a call he arrived at the office about 1 a. m., May 10, 1966, finding that the office building, which was closed and locked the evening before, had been forcibly entered by making a hole through the roof and ceiling into a restroom ; that the building was equipped with a burglar alarm system; that a typewriter, a knife, two dolls and $67.70 had been taken from the building and were returned to him that night; that he did not give anyone his consent to enter the building and take any property therefrom.

Manager Dickey further testified that upon his arrival at the office he saw five officers, and the appellant, Joseph Lee Dowell, Bertram Kelly, and John Henry Davis; that Dowell had worked for him about three months and Dowell had introduced the appellant to him as a personal friend of his who was in need of a job; that he had told Dowell to bring the appellant to work Monday morning before the burglary that night, but that neither Dowell or the appellant came to work Monday morning.

Officer Ball testified that in response to a burglar alarm he and Officer Shirley went to a building which was surrounded by a fence; that on their arrival, each went to an opposite side to investigate; that on passing a Chevrolet automobile parked in front of the building, he found that the hood was warm when he placed his hand on it as he passed going to the building; that on not discovering anything around the building and along the fence, he returned to the patrol car, and then on hearing a noise he went on the outside of the fence where he saw a person lying face down on the ground; that he arrested this person (whom he identified at the trial as the appellant), and took him through a gate, inside the fenced area, and to the south side of the office; that from about fifteen feet of the building he shined a flashlight on top where he saw two men lying down on top of the building; that Officer Shirley went upon the roof, arrested the two men and searched them; that at this time another man jumped from a tree by the building on the ground; that a typewriter, dolls, and tools were found on the roof; that the appellant was lying on the ground about 20 or 25 feet from the Chevrolet when arrested; that the appellant was not intoxicated; that Kelly, who was on the roof, stated that the Chevrolet belonged to him; that the appellant and the three other men appeared to know each other and talked among themselves.

Except the testimony showing the apprehension of the appellant, the testimony of Officer Shirley was substantially the same .as that of Officer Ball.

The appellant did not testify or offer any ■testimony in his behalf.

From all the facts and circumstanc■es in evidence, it is concluded that the evidence is sufficient to support the conviction for the primary offense as charged.

As ground for. reversal, the appellant contends that the trial court erred in .allowing Officer Ball to testify that the Chevrolet automobile parked at the scene had stolen license plates on it.

The appellant objected “to this testimony :as having no bearing on the matter before the Court and being introduced only for the purpose of seeking to influence and prejudice the jury.”

Replacing the license plates of their car parked at the scene with stolen plates served the purpose of concealing the identity of the automobile and its owner and the detection and apprehension of those committing the burglary on leaving the scene with their loot.

The admission of such evidence as a part of the transaction was not error.

The judgment is affirmed.


author: ONION, Judge.

text:
    Perry James LeBLANC, Appellant, v. The STATE of Texas, Appellee.
    No. 41069.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1968.
    Charles W. Gill, Houston (on appeal only), for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell and Allen L. Stilley, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Burglary; the punishment enhanced under the provisions of Article 63, Vernon’s Ann.P.C., life.

Trial was before the court without the intervention of a jury upon appellant’s plea of not guilty. A written stipulation as to the two prior convictions for burglary alleged in the indictment for enhancement was entered into by the appellant, his attorney and the prosecutor. Said stipulation was in accordance with the requirements of Article 1.15, Vernon’s Ann.C.C.P., as to such stipulations where a jury is waived in non-capital felony cases and the case is heard before court regardless of the plea entered.

At the outset appellant challenges the sufficiency of the evidence to sustain his conviction as to the instant offense, particularly because the state relied in part upon fingerprints found at the scene of the burglary. He contends there is no evidence to show the prints were not there prior to the time of the alleged burglary.

Houston Police Department officers testified that they made an investigation of a burglary alleged to have occurred in the City of Houston on April 23, 1965, at an apartment on the second floor of a building. Entry was gained by throwing a rock through the front window of the apartment, climbing up on a ledge and raising the broken window. The owner, Louis Green, had departed for a weekend visit to Louisiana at the time of the burglary. Appellant and Green were friends and worked across the street from each other, but Green testified he did not give the appellant consent or permission to break and enter the apartment. There is no evidence that the appellant ever visited Green in his apartment, or was seen there prior to the date of the burglary.

Officer Forrest Perry of the Houston Police Department testified that the prints which were lifted from the broken windowpane were placed there after the rock was thrown because the prints were split on either side of the jagged glass still in the window frame. After describing the position of the prints he related that “it would have been impossible to have gotten those prints on the broken glass before the hole was knocked in it.” A fingerprint expert testified that he compared the fingerprints lifted from the jagged glass with fingerprints taken from appellant on the day of his arrest and that they were identical.

A 17-inch television set taken at the time of the burglary was recovered from the residence of the appellant three days after the alleged burglary.

Testifying in his own behalf, appellant denied the burglary and stated he purchased the television set from a person known to him only as “Yickyboo” who frequented the “Bloody Fifth” Ward in Houston. He admitted seeking the help of a juvenile in carrying the portable television set in question home after his purchase, but denied that he was carrying at the time a shotgun and items reported to have been stolen at the time of the burglary.

No objection was made to the fingerprint expert testifying that fingerprints found on the windowpane and examined by him corresponded to those of appellant’s. On cross-examination of the officer Perry who had lifted the prints appellant himself established that a partial thumbprint was taken from the outside and two or three partial fingerprints were taken from the inside of the jagged glass remaining in the window frame. Further, appellant on cross-examination of this officer brought out the testimony quoted above that the fingerprints lifted could not have been placed on the glass until after it had been broken with a rock. In this respect the facts of the case at bar are identical in principle with those in Grice v. State, 142 Tex.Cr.R. 4, 151 S.W.2d 211. The evidence is sufficient to show that the fingerprints were not placed on the windowpane prior to the alleged burglary.

The evidence being sufficient to sustain the conviction, appellant’s first ground of error is overruled.

Appellant next complains that the trial court erred in admitting into evidence testimony as to the recovery of the television set from appellant’s home as a result of an unreasonable search and seizure without either an arrest or search warrant.

Officer R. L. Sieckmann, Jr. testified on direct examination without objection that he had recovered the television set from appellant’s home. On cross-examination Sieckmann related that on April 26, 1965, appellant invited him and other officers into his home and that once inside they observed the television set “in open view” on a chest of drawers.

Appellant himself testified “I let them into the living room and they asked about the television set that I was supposed to have bought that Friday. And so, I told them I would get it for them, and I went to the bedroom to get it and they followed me * *

Appellant claimed m his testimony the officers searched his house, but there is no showing or even any claim that the television set was not in open view and was recovered as a result of a search of appellant’s home.

Appellant is correct that a waiver of constitutional immunity from unreasonable search and seizure could not be inferred from the acts of an accused in admitting police officers into his home in compliance with their request for an interview. Robertson v. State, Tex.Cr.App., 375 S.W.2d 457; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436.

Here that rule has no application where after the invitation to enter was given, the officers seized only the television set which was in open view and did not recover the same by result of any search. Isaac v. State, Tex.Cr.App., 421 S.W.2d 661; see Galloway v. State, Tex.Cr.App., 420 S.W.2d 721; Coronado v. State, 167 Tex.Cr.R. 206, 319 S.W.2d 104; 51 Tex.Jur.2d, Searches and Seizures, p. 685, Sec. 15. Cf. Nichols v. Commonwealth, 408 S.W.2d 189 (Ky.).

If the television set was in fact recovered as a result of a search, the appellant having failed to properly object to admission of such testimony into evidence waived any question as to the alleged illegality of the search. Boykin v. State, 172 Tex.Cr.R. 652, 362 S.W.2d 328; Gonzales v. State, Tex.Cr.App., 379 S.W.2d 352, cert. den. 380 U.S. 981, 85 S.Ct. 1346, 14 L.Ed.2d 274.

Appellant’s second ground of error is without merit.

The judgment is affirmed.


author: DICE, Judge.

text:
    David Kenneth BROCK, Appellant, v. The STATE of Texas, Appellee.
    No. 41075.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1968.

      Charles Scarbrough, Abilene, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for unlawfully carrying a switchblade knife; the punishment, a fine of $250.

The prosecution is under Art. 483, P.C., which provides in part as follows:

“Any person who shall carry on or about his person, saddle or in his saddlebags, or in his portfolio or purse any * * * switch blade knife * * * shall be punished by a fine of not less than One Hundred Dollars ($100) nor more than Five Hundred Dollars ($500) or by confinement in jail for not less than one (1) month nor more than one (1) year.”

The information, omitting its formal parts, charged that:

“ * * * on or about the 18th day of September_1967, and anterior to the filing of this information, in said County of Taylor and State of Texas, one David Kennith [sic] Brock did then and there unlawfully carry about his person a prohibited weapon, to-wit: a switch blade knife * *

Six grounds of error are urged by appellant in the appeal.

He first insists that the portion of Art. 483, supra, relative to switchblade knives is so vague and uncertain as to render it unconstitutional, under the Fourteenth Amendment to the United States Constitution. It is appellant’s contention that, because there is no definition in the statute of a switchblade knife and such term is so vague and uncertain, the statute is inoperative under the Constitution.

In support of his contention appellant cites, among other cases, Spigener v. State, 166 Tex.Cr.R. 466, 314 S.W.2d 832, in which this court held that portion of the statute making it unlawful to carry a “hand chain” of such doubtful construction as to be inoperative under the Fourteenth Amendment to the United States Constitution and Art. 1, Sec. 19, of our State Constitution, Vernon’s Ann.St.

In Spigener v. State, supra, we pointed out that the term “hand chain” was not well recognized and was not defined in dictionaries and held that portion of the statute making it unlawful to carry a “hand chain” inoperative under the due process clauses of our State and Federal Constitutions.

This is not so as to the term “switchblade knife,” which is well recognized and is defined in dictionaries, including Webster’s Seventh New Collegiate Dictionary.

In the instant case, Officer McCay testified that the knife which appellant had on his person was a switchblade knife, which he described as a knife that “has a spring under the blade, which will throw the blade out, when the switch is pushed on it.” He stated that while the knife could be called a “springblade knife,” it was known to him as a switchblade knife.

We find the term ’’switchblade knife” so commonly understood that the statute is not inoperative for uncertainty.

Appellant next insists that the information in the case was void and should have been quashed because it “failed to state a crime under Art. 483 of the Penal Code of Texas.”

No exception or motion to quash the information was filed by appellant. It is, however, his contention that since the information charged him with unlawfully carrying “a prohibited weapon” and that term is not used in the statute, Art. 483, no offense is charged thereunder.

While the term ’’prohibited weapon” is not used in Art. 483, supra, the information did charge the carrying of a switchblade knife, which is an offense denounced by the statute. The contention is overruled, as well as appellant’s third contention that there was a variance between the pleading and the proof because the state failed to prove that he carried a prohibited weapon.

The very terms of the statute making it unlawful to carry a switchblade knife and proof of such fact would constitute proof that the person was carrying a prohibited weapon.

Appellant’s fourth and fifth grounds of error complain of the court’s charge.

No objections were made or charges requested by appellant in writing, as required by Arts. 36.14 and 36.15 of the Vernon’s Ann.Code of Criminal Procedure. Such complaints are therefore not properly before the court for review. Smith v. State, Tex.Cr.App., 415 S.W.2d 206.

Appellant’s sixth ground of error is that the court erred in failing to grant his motion for continuance.

The motion was not sworn to by appellant, as required by Art. 29.08, C.C.P., nor, among other defects, did the motion state facts which were expected to be proved by the witness, as required by Art. 29.06, C.C.P. In overruling the motion, the court did not err. Moats v. State, Tex.Cr.App., 402 S.W.2d 921; Square v. State, 145 Tex.Cr.R. 219, 167 S.W.2d 192. The ground of error is overruled.

The judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Curtis Wilson GIBSON, Appellant, v. The STATE of Texas, Appellee.
    No. 41025.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1968.
    Rehearing Denied March 13, 1968.
    Layne R. Turner, San Angelo, for appellant.
    Royal Hart, Dist. Atty., San Angelo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is rape by force; the punishment, 6 years.

By his first ground of error appellant complains of a number of remarks of the district attorney, some of which were made in his opening argument and the remainder in his closing argument.

Art. 40.09(9) Vernon’s Ann.C.C.P. requires that the defendant’s brief set forth separately the grounds of error of which he desires to complain on appeal. See Rae v. State, Tex.Cr.App., 423 S.W.2d 587, and authorities cited.

If before us as separate grounds of error, neither of the excerpts from the arguments of the district attorney and the ruling of the court on the objection thereto reflects reversible error.

The remaining ground for reversal is that “there is a reasonable doubt, as a matter of law, that the prosecutrix did not consent to the act of intercourse with defendant and the court failed to instruct the jury as to implied consent.”

Assuming that this ground of error does not offend the requirements of Art. 40.09 (9), supra, it is overruled.

The testimony from the standpoint of the state shows that the twenty year old prose-cutrix, a sophomore at Angelo State College who had never had sexual relations and had never seen the thirty year old married man before that day, was by force, and despite her utmost resistance to prevent it, ravished.

The testimony of the prosecutrix was supported by testimony of other witnesses as to her physical and mental condition at the time of her outcry and report shortly after the intercourse, and as to her good reputation for virtue and for truth and veracity.

The court’s charge included instructions that before the defendant could be found guilty the jury must find beyond a reasonable doubt that the prosecutrix did not consent; and the jury was also instructed to acquit if they found or had reasonable doubt that the prosecutrix failed to use every exertion in her power under the circumstances to prevent the defendant from having intercourse with her at the time and place irt question. The record reflects no objections to the charge and no requested charges.

Appellant’s testimony was that he had sexual intercourse with the prosecutrix at the time and place in question with her consent and without force. The jury resolved the issue raised by his testimony against him and the evidence is sufficient to sustain, the jury’s verdict.

The judgment is affirmed.


text:
    Norman Lewis COURTNEY, Appellant, v. The STATE of Texas, Appellee.
    No. 41009.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1968.
    M. Gabriel Nahas, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., Joseph W. Doucette and Ted S. Hirtz, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Carrying On or About His Person A Pistol, a violation of Article 483, Vernon’s Ann.P.C.; the punishment, thirty (30) days in the county jail.

Appellant initially challenges the sufficiency of the evidence to support his conviction resulting from his trial before the court without the intervention of a jury.

Shortly after midnight, January 10, 1967, appellant was stopped by two City of Houston police officers for driving his automobile with a red rag totally obscuring his rear license plate. At that time it was discovered that appellant possessed no driver’s license and it appeared that the appellant had been “drinking quite heavily.” A search of the unlocked glove compartment of appellant’s automobile revealed a loaded .32 caliber Beretta automatic pistol. Upon finding the pistol the arresting officer, C. I. Darrow, inquired “Who does this belong to?”, and in response thereto appellant stepped forward. The evidence reflects that another person, Ronald Dawson, was riding with appellant in the front seat of the automobile at the time of the arrest.

Testifying in his own behalf appellant acknowledged he “knew” the pistol which had come from his home and identified it as belonging to his wife. Appellant, however, denied any knowledge of the pistol being in the glove compartment. He related that earlier in the evening he had sought to collect some money due his wife, an interior decorator, from a business venture with a painter; that he did not find the painter at home but found instead the painter’s hungry children; that after a telephone conversation with his wife he had gone to an ice house and purchased groceries for the children; that upon his arrival home his wife informed him that the painter had called and wanted the groceries picked up and had accused the appellant of making a “big show”; that at the time of arrest he had started back to the painter’s house to collect the money due his wife and to pick up the groceries; that his wife was concerned for his safety; that he had had only one beer that evening.

Appellant’s wife testified that she had given the pistol to Ronald Dawson prior to the return trip to the painter’s house in order to protect her husband; that the pistol had been handed to Dawson out of appellant’s presence.

Ronald Dawson, called to testify by appellant, refused, except as to his name, to answer all questions propounded to him on direct examination, claiming his privilege against self-incrimination.

For some time after the enactment of present Article 483, supra, in 1887, “on or about the person” was given a rather strict interpretation. Hardy v. State, 37 Tex.Cr.R. 511, 40 S.W. 299. See also Thompson v. State, 48 Tex.Cr.R. 146, 86 S.W. 1033; George v. State, Tex.Cr.App., 29 S.W. 386.

Subsequently the Court altered its interpretation of the Legislative intent and took an expanded view when applying the provisions of Article 483, supra, to persons occupying vehicles. Garrett v. State, Tex.Cr.App., 25 S.W. 285; Leonard v. State, 56 Tex.Cr.R. 84, 119 S.W. 98; Mayfield v. State, 75 Tex.Cr.R. 103, 170 S.W. 308; De Friend v. State, 69 Tex.Cr.R. 329, 153 S.W. 881; Hill v. State, 50 Tex.Cr.R. 619, 100 S.W. 384.

In Wagner v. State, 80 Tex.Cr.R. 66, 188 S.W. 1001, this Court said:

“The Legislature must have meant something when it used the words, ‘or about the person,’ and, on principle, using the word ‘about’ in its ordinary meaning, taking into consideration the context and subject-matter relative to which it is employed, the word, not being specially defined, must, as we believe, be held to mean, within the pistol statute, near by, close at hand, convenient of access, and within such distance of the party so having it as that such party could, without materially changing his position, get his hand on it; otherwise every person having a vehicle would be authorized to keep prohibited weapons in his vehicle and within reach of his hand, ready for action, and thus fill our streets and highways with armed men, while peaceful pedestrians and passengers or guests in such vehicles would not be so exempt from the law.”

See also Emerson v. State, 80 Tex.Cr.R. 354, 190 S.W. 485; Spears v. State, 112 Tex.Cr.R. 506, 17 S.W.2d 809.

Proof that the accused carried a pistol in the glove compartment of his car warrants his conviction of carrying on or about his person a pistol. Hutspeth v. State, 158 Tex.Cr.R. 188, 254 S.W.2d 130; Franklin v. State, 147 Tex.Cr.R. 636, 183 S.W.2d 573; Spears v. State, supra.

Pointing out that he was not alone in the car appellant relies upon Jones v. State, Tex.Cr.App., 371 S.W.2d 883 and Summerville v. State, 164 Tex.Cr.R. 591, 301 S.W.2d 913. These cases are readily distinguishable from the case at bar. In Jones the pistol was found outside the automobile the appellant was driving. There were five other passengers in the car at the time and no testimony to show Jones had possession of the pistol, exercised any control over it, or even owned the car he was driving. In Summerville the pistol was found in the glove compartment of a car driven by Summerville with three or four other people as passengers, and no evidence was offered to show he had possession or control of the pistol nor was the ownership of the car shown. Summer-ville is not applicable to the instant case under either the majority or dissenting opinion.

In the case at bar after his arrest while driving his car, appellant stepped forward in response to the officer’s question as to the ownership of the pistol found in the glove compartment of such car. Both appellant and his wife testified that the pistol belonged to her. Ronald Dawson was not shown to have exercised any control over the pistol except that attributed to him by appellant’s wife, an interested witness.

It is obvious that the trial court did not accept the appellant’s theory of how the gun got into the car nor was it obligated to do so. In Hutspeth v. State, supra, this Court said:

“The trial judge was not bound by appellant’s explanation of his purpose in having the pistol in his possession but, sitting without a jury as the trier of the facts, had the right to accept or refuse to accept appellant’s testimony as true.”

See also Miller v. State, Tex.Cr.App., 388 S.W.2d 186; Walker v. State, Tex.Cr.App., 395 S.W.2d 645; Gray v. State, Tex.Cr.App., 382 S.W.2d 481.

In Spears v. State, 112 Tex.Cr.R. 506, 17 S.W.2d 809, this Court said:

“The fact that the pistol was found in the right-hand pocket of the car, and that another man was sitting beside appellant and nearer to the pocket in which the pistol was than appellant, and that some one had theretofore reported the fact that the man sitting nearest the pocket containing the pistol had had said pistol in his hand, would not be deemed of sufficient weight to justify this court in overturning the deliberate verdict and judgment of the jury determining that the pistol was carried on and about the person of this appellant.”

Further, this Court pointed out in Franklin v. State, 147 Tex.Cr.R. 636, 183 S.W.2d 573, that:

“ * * * it has been the consistent holding that this court will reverse a case on the insufficiency of the evidence only when the testimony, viewed in its strongest light from the standpoint of the State, fails to make guilt of the accused reasonably certain. Mason v. State, 108 Tex.Cr.R. 452, 1 S.W.2d 283; 18 Tex.Jur., page 420, Sec. 299.”

Under the facts, the trial judge was authorized to conclude that appellant was carrying the pistol on or about his person. Appellant’s first ground of error is overruled.

In his second ground of error appellant contends that at his trial on March 20, 1967, the court erred in permitting impeaching testimony to be- elicited from appellant concerning convictions over ten years old.

Appellant testified on cross-examination that in 1959 he had been convicted of forgery, and that in 1952 and 1945 he had been convicted of the offenses of burglary. Appellant objected to state counsel’s interrogation as to whether he had been convicted of any felony or misdemeanor involving moral turpitude within the ten years prior to the 1959 forgery offense, and as to whether he had been convicted of any such offense within the ten years prior to the 1952 burglary offense. The trial court overruled each objection.

It is well settled that “where the defendant takes the stand it may be shown that he had been convicted of a felony or misdemeanor involving moral turpitude; * * *.” 62 Tex.Jur.2d 378, Sec. 339. See also 39 Tex.Dig., Witnesses, p. 364; 1 Branch’s Ann.P.C., Sec. 189.

An exception to this rule is that the prior conviction must not be too remote. 62 Tex.Jur.2d 380, Sec. 340; 39 Tex.Dig., Witnesses, (d), p.369; 1 Branch’s Ann.P.C., Sec. 189.

“Whether a previous conviction is too remote to impair the defendant’s credibility is not to be arbitrarily determined by the lapse of time alone, but the intervening conduct of the accused is a pertinent subject of inquiry and often determines whether the proof is admissible or too remote. More broadly stated, the rule is that, regardless of the time element, the facts of each case must be looked to and considered in determining the question of remoteness. And that question is one addressed largely to the discretion of the trial court, and no hard and fast rule or period of time may be fixed. Nevertheless, the tendency of many decisions is to hold that an interval of ten years, counting from the time of release from jail if the defendant served a term of imprisonment, renders the previous conviction unavailable for impeachment, unless from the defendant’s intervening conduct it appears that he has not reformed.” 62 Tex.Jur.2d 380, Sec. 340.

In Gill v. State, 147 Tex.Cr.R. 392, 181 S.W.2d 276, this Court held that the appellant should have been permitted to prove the prior convictions of the state’s witness ranging from 7 years old to 18 years old.

“The question of remoteness is usually to be determined in the light of the particular facts of each case, especially regarding subsequent conduct of the convict. If there be evidence showing a lack of reformation, or the subsequent conviction of another felony, then the prior conviction is not deemed subject to the objection of remoteness. * * * (collation of authorities) * * Gill v. State, supra.

Notwithstanding the fact that there is no showing in the record as to when appellant was released from the confinement on either his 1945 or 1952 felony conviction, we conclude that the convictions being approximately 7 years apart were not too remote, under the circumstances presented here, for the purposes of impeachment.

We find no merit in appellant’s third ground of error that appellant’s prior convictions were introduced to show his “prior criminal record” when Article 37.07, Vernon’s Ann.C.C.P. had no application to a trial before the court on a plea of not guilty. It is obvious that such convictions were offered for impeachment purposes only.

Finding no reversible error, the judgment is affirmed.


text:
    Sylvester MOORE, Appellant, v. The STATE of Texas, Appellee.
    No. 41068.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1968.

      Alfano, Dailey & Pitchford, by Fred H. Dailey, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., James A. Brough and Ruben W. Hope, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

Appellant and James Moore were jointly indicted for the offense of robbery by assault.

Upon the granting of a severance, appellant was separately tried and convicted, with punishment assessed at life imprisonment in the Texas Department of Corrections.

Four grounds of error are urged by appellant on the appeal.

He first contends that the court erred in refusing his motion for individual and separate examination of the prospective jurors.

Under the provisions of Art. 35.17-1, C.C.P., it is within the discretion of the trial judge, in a non-capital felony case, to direct that the state and the defendant conduct the voir dire examination of the prospective jurors in the presence of the entire panel. It is only in capital cases where the state has made known it will seek the death penalty that either the state or the defendant is entitled, under Art. 35.17-2, C.C.P., to examine each juror on voir dire, individually and apart from the entire panel. The ground of error is overruled.

Appellant next contends that the court erred in refusing his motion in limine #1, which was a request that he not be required to sit at the defendant’s table during the time the state’s witnesses were testifying and that he be allowed to sit with others in the courtroom “so that his appearance with his counsel at the Defendant’s table” would not assist the state’s witnesses in identifying him.

In such motion, a further request was made by appellant “that if the State’s Counsel requires the witnesses to identify this Defendant that such identification be made when the Defendant is seated or standing with other persons of the same general age, race, and sex.” Request was also made that state’s counsel be instructed “not to point out the Defendant to the witnesses while the Defendant is in the Courtroom or to show to said witnesses photographs of this Defendant for the purpose of coaching the witnesses in order to bolster their description of the Defendant and further that the Court instruct the State’s Counsel not to describe the physical appearance of this Defendant to the said witnesses.”

We know of no law which prohibits a court from requiring that a defendant sit at the counsel table with his attorney during the trial. Nor do we know of any law which prohibits state’s counsel from pointing to a defendant in the courtroom and referring to his physical appearance in the presence of witnesses. No authority is cited by appellant in support of his motion. The motion is wholly without merit, and the ground of error is overruled.

In his third ground of error, appellant insists that the court erred in denying his motion in limine #2, which requested the court to instruct counsel for the state and the state’s witnesses to make no reference to or mention of firearms, or other deadly weapons used in commission of the offense, because the use of firearms was not alleged in the indictment.

The fact that robbery with firearms was not alleged in the indictment did not prohibit the state from making such proof in proving the offense of robbery by assault, which was alleged. Keppler v. State, 133 Tex.Cr.R. 623, 113 S.W.2d 900; Ramirez v. State, 169 Tex.Cr.R. 494, 335 S.W.2d 228.

In his fourth and last ground of error, appellant insists that the court erred “in allowing the State to offer evidence of extraneous offenses alleged in other indictments to have been committed by the Defendant.”

While appellant, in his brief, does not set out or refer to the evidence showing extraneous offenses, a review of the record reflects that such evidence was properly admitted and limited in the court’s charge to the impeachment of appellant’s testimony as a witness. Under the record, no error is presented. Garcia v. State, 167 Tex.Cr.R. 593, 322 S.W.2d 536; Jones v. State, 169 Tex.Cr.R. 175, 332 S.W.2d 560; Wilhelmi v. State, Tex.Cr.App., 388 S.W.2d 687.

The judgment is affirmed.


text:
    Lonnie CLARK, Appellant, v. The STATE of Texas, Appellee.
    No. 40974.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1968.
    Rehearing Denied March 13, 1968.

      D. C. Gandy, Fort Worth (on appeal only), for appellant.
    Frank Coffey, Dist. Atty., John Howze and Gordon Gray, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The offense is burglary; the punishment, enhanced under Art. 63, P.C., by virtue of two prior felony convictions for offenses less than capital, life imprisonment.

At the hearing on punishment, proof was offered by the state of the two prior felony convictions alleged for enhancement.

The witness, Gordon Gray, an assistant district attorney of Tarrant County, testified that on September 12, 1962, he was present in the Criminal District Court of Tarrant County when appellant entered a plea of guilty in Cause ..Na. 66,668 and was convicted of the offense of burglary and that he was also present in Criminal District Court No. 3 of Tarrant County, on January 31, 1966, when' appellant entered a plea of guilty in Cause No. 71,436 and was convicted of the offense of burglary. He further testified that there was no appeal in either case and that each conviction became final.

The state also introduced in evidence certain authenticated prison records.as state’s exhibits #2 and #3. Such exhibits contained copies of the judgments and sentences in Causes Nos. 66,668 and 71,436.

No objection was made by appellant to the evidence presented by the state to prove the prior convictions.

After counsel for the state and for appellant were notified by the clerk of completion of the record, appellant presented to the court a “Motion for Hearing Under Article 40.09, C.C.P.” in which hearing appellant sought to offer proof that he was not duly and properly admonished by the court in Cause No. 66,668, which was one of the prior convictions used by the state for enhancement.

The court refused to permit appellant to offer testimony in support of the motion— which is the basis of appellant’s ground of error #1.

Appellant insists that he was entitled to such hearing under Art. 40.09, C.C.P., to make the record speak the truth.

Reliance is also had upon the holdings of this court that the requirements of Art. 26.13, C.C.P., that the court admonish a defendant of the consequences of his plea of guilty are mandatory and the court’s failure to comply with the statute may be raised at any time. See: Williams v. State, Tex.Cr.App., 415 S.W.2d 917, and cases therein cited.

Art. 40.09-4, C.C.P., which gives effect to the transcription of a court reporter’s notes, reads, in part, as follows:

“ * * * provided, however, that the court shall have power, after hearing, to enter and make part of the record any finding or adjudication which the court may deem essential to make any such transcription speak the truth in any particular in which the court finds it does not speak the truth and any such finding or adjudication having support in the evidence shall be final.”

We do not construe this provision of the statute as permitting a party to offer additional testimony in the case after the testimony is closed, judgment rendered on the jury’s verdict, and sentence pronounced. This- statute only permits the court, after a hearing, to enter such finding or adjudication which he deems essential to make the court reporter’s transcription of his notes speak the truth.

No objection to the record was made by the parties or the court which called for a hearing under Art. 40.09-7.

Appellant’s first ground of error is overruled.

Our holding does not preclude the appellant from attacking the conviction with punishment enhanced under Art. 63, supra, by writ of habeas corpus, on the alleged ground that he was not properly admonished in Cause No. 66,668. Ex parte Muckelroy, 171 Tex.Cr.R. 616, 352 S.W.2d 835.

We overrule appellant’s second ground of error, wherein he insists that the evidence is insufficient to “sustain the conviction with enhanced punishment” because the recitation in the judgment in Cause No. 66,668 “and the Court having duly admonished the Defendant as to the consequences of such plea” is not supported by the record and that such statement, standing alone, is insufficient to show that he was in fact “advised as to the possible punishment for the offense for which he was on trial and for which he entered a guilty plea.”

Nothing appears in the record which refutes the recitation in the judgment that appellant was duly admonished as to the consequences of his plea. McCoy v. State, 169 Tex.Cr.R. 620, 336 S.W.2d 945.

The judgment is affirmed.


text:
    Ervin Hermann ALBRECHT, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 41070.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1968.

      Fred H. Dailey, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell and Robert C. Bennett, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The appellant, upon his plea of guilty before the court after the waiver of a trial by jury was found guilty of misdemeanor theft, and his punishment was assessed at a fine of one dollar and forty days in jail.

The overruling of appellant’s first motion for a continuance is relied on as a ground for reversal.

The motion alleges that appellant had not had time to examine any written statements that Mary Pennington may have given to the officers, that he understood that she had been given immunity from prosecution, and unless he is able to take her deposition he could not properly prepare his defense and irreparable damage would occur to him.

The motion was overruled on June 7, 1967, the day the trial was had. No application to take the deposition of Mary Pennington or for a subpoena for her is shown in the record, and no facts are alleged which he expects to prove by her. The motion fails to allege that it was not made for delay.

In light of the record, the trial court did not abuse its discretion in overruling the motion for continuance.

Other grounds of error urged by the appellant are that the trial court accepted his plea of guilty without determining that it was voluntary, and knowingly and intelligently made and entered; and also without evidence to support said plea.

In a misdemeanor case, a plea of guilty may be accepted without evidence being introduced that it was voluntarily made, and with or without the introduction of any evidence showing the commission of the offense. Art. 27.14, Vernon’s Ann. C.C.P.; Carter v. State, Tex.Cr.App., 400 S.W.2d 57; Foster v. State, Tex.Cr.App., 422 S.W.2d 447.

No evidence appears in the record to suggest that appellant’s plea of guilty was involuntary.

The record reveals that the appellant was represented by counsel at the trial and on appeal. The record also reveals that he was arraigned and in open court plead guilty to the offense charged in the information.

The judgment is affirmed.


text:
    Ex parte Panda Aulene WEEKS.
    No. 41146.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1968.
    Ashley & Laubach, by William M. Lau-bach, Houston, for petitioner.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

This is an original application for a writ of habeas corpus to this court seeking a hearing on whether bail upon a complaint charging her with the possession of heroin is excessive.

It is made to appear that subsequent to the filing of the application herein an indictment has been returned charging the petitioner with said offense, and the question of her right to a hearing on reduction of bail upon the charge by complaint has therefore become moot. Ex parte Davis, Tex.Cr.App., 290 S.W.2d 669.

The petition is dismissed.


text:
    Mike OLSEN, Appellant, v. The STATE of Texas, Appellee.
    No. 41076.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1968.
    Mike Beard, Waco, for appellant.
    Martin D. Eichelberger, Dist. Atty., Tom T. Tatum, Asst. Dist. Atty., Waco, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is oral sodomy; the punishment, 7 years.

Trial was before the court on a plea of not guilty.

The sufficiency of the evidence to sustain the trial court’s finding of guilt is challenged, the contention being that this case should be reversed because the state’s sole evidence was given by the eleven year old boy who was one of the principals to the crime and appellant cannot be convicted on the uncorroborated testimony of an accomplice.

Appellant urges that the boy was an accomplice under the rule stated in Slusser v. State, 155 Tex.Cr.R. 160, 232 S.W.2d 727, as follows:

“We conceive the correct rule to be that as to a child witness:
“(1) Each case must be considered upon its own facts in determining whether the witness is to be considered a victim of the unlawful act of another or as a participant therein, and therefore an accomplice.
“(2) If inferences are to be indulged, the correct inference would be that a child over nine and under thirteen years of age possesses sufficient discretion and knowledge to be an accomplice.
“(3) If from the evidence, a question is raised as to whether the child between the ages of nine and thirteen years voluntarily participated in the criminal act, or as to whether such child, so participating, is possessed of sufficient discretion to know the act to be criminal, and to have the necessary criminal intent, such issue or issues should be submitted to the jury in order that the jury may, by resolving such issue, determine whether the witness is to be considered an accomplice witness.
“(4) If the record as a whole shows that the child witness has such discretion, and voluntarily participated in the unlawful act, then the testimony of the witness should be dealt with as that of an accomplice witness.”

Appellant points to testimony of the boy that he voluntarily submitted to the act; that he offered no resistance; that he knew it was wrong and that the only reason he could give for having submitted to the act was that he was scared, and the testimony shows no basis for said fear.

The state’s brief points to other testimony of the boy that he did not voluntarily participate in the occurrence; did not think that he was breaking our laws or doing wrong, and that he wanted to leave but appellant had locked the doors and he was afraid to go unlock them because he was scared that appellant might hurt him.

As we understand, the state’s brief agrees that the conviction was based solely on the testimony of the boy who was eleven years old at the time of the act of oral sodomy, and argues:

“It is not the position of the appellee that the witness — is not an accomplice as a matter of law, but merely that he should not be considered as a matter of law to be an accomplice.”

Fortunately we are not required to ferret out of the quotation the precise position of the state.

The further argument found in the state’s brief reflects that the state’s real contention is that the question of whether the boy was an accomplice was an issue of fact to be decided by the trier of the facts, which in this case was the trial judge, and had been resolved against appellant. In support of this contention the state’s brief quotes from Slusser v. State, supra, cited by appellant, the rule which we deem applicable:

“If from the evidence, a question is raised as to whether the child between the ages of nine and thirteen years voluntarily participated in a criminal act, or as to whether such child, so participating, is possessed of sufficient discretion to know the act to be criminal, and to have the necessary criminal intent, such issue or issues should be submitted to the jury in order that the jury may, by resolving such issue, determine whether the witness is to be considered an accomplice witness.”

The presumption is that the trial judge’s rulings are correct.

We conclude that the evidence raised the issue of whether the boy was an accomplice under the above rule, and that such issue was decided in favor of the state by the trial court.

The judgment is affirmed.


author: CHAPMAN, Justice.

text:
    Melvin McCOY, Appellant, v. FIRST STATE BANK, MORTON, Texas, Appellee.
    No. 7778.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 29, 1968.
    Warren G. Tabor, Levelland, for appellant.
    James K. Walker, Morton, for appel-lee.
   CHAPMAN, Justice.

This is a venue case.

Suit was filed by the First State Bank of Morton, Texas, upon a promissory note in the original amount of $41,185.62 alleged to have been executed and delivered to it by defendants, John Purdy, Sr., John Purdy, Jr. and Melvin McCoy on January 19, 1965. A copy of the note was attached as Exhibit “A” and made a part of the petition. It is also alleged in the petition that the described note was secured by a deed of trust of even date, a copy of which was also attached thereto and made a part thereof. All three defendants signed the note as makers and signed the deed of trust securing the same.

Subsequently, the Purdys alone signed a renewal note in the amount of $44,235.33 alleged to be a renewal of both the principal and interest of the original note. To secure the renewal of the latter note the Purdys executed a deed of trust giving additional security.

By its First Point appellant contends the ,petition does not contain any allegations-of venue in Cochran County. We do not agree. A copy of the original note is attached as Exhibit “A” and made a part of the petition as if copied therein in full.

The controverting affidavit to the plea of privilege alleges Exception 5 under Art. 1995, Vernon’s Ann.Tex.Civ.St. as appel-lee’s right to maintain venue in Cochran County. That exception provides: “If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him * * * in such county.”

The first above described note, as well as the renewal note, shows to be payable in Morton, Texas. That city is in our supreme judicial district. We may take judicial knowledge that Morton, Texas is in Cochran County, Texas. Burgess v. F. E. Hill Co., 329 S.W.2d 354 (Tex.Civ.App.—Waco, 1959, writ dism’d); Yanta v. Davenport, 323 S.W.2d 636 (Tex.Civ. App.—San Antonio, 1959, writ dism’d); Tyson v. Seaport Grain, Inc., 388 S.W.2d 731 (Tex.Civ.App.—Corpus Christi, 1965, writ dism’d). “This is 'naming a particular county, or a definite place therein’ by a written instrument as is required by subdivision 5, art. 1995, Revised Civil Statutes 1925, as amended.” Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825; Renaud v. Simmons, 254 S.W.2d 418 (Tex.Civ.App.—El Paso, 1925, mand. overruled).

The Supreme Court of Texas in construing Sec. 5 of Art. 1995 in Petroleum Producers Co. v. Steffens, 139 Tex. 257, 162 S.W.2d 698 (Comm. of App., Sec. B, 1942, opinion adopted), has held that: “ * * * aside from the fact that the pléadings in the suit disclose that the suit is ‘upon or by reason of’ an obligation of some sort—either written or unwritten, express or implied—there is but a single fact which need be shown in order to cast venue in the county where the suit is brought. This single fact is to the effect that the defendant has contracted in writing to perform the alleged obligation in said county—the county or some definite place therein being expressly named in the writing.” The petition here, a part of which is the original note, shows the suit is upon an obligation in writing signed by appellant, by which he and the other makers of the note contracted in writing to perform the alleged obligation in the county of suit, a definite place therein being named in the writing. The definite place named in the writing was Morton, Texas. Therefore, the petition does allege facts showing “ * * * the suit is ‘upon or by reason of’ an obligation of some sort.”

“Proof of the existence of a cause of action is not required now, and was not required before the subdivision was amended in 1935. Farmers’ Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675; Bradley v. Trinity State Bank, 118 Tex. 274, 14 S.W.2d 810.” In fact, the cases are myriad which hold that in order to sustain venue in the county where suit is brought against a non-resident under Subdivision 5 of Art. 1995, V.T.C.S. it is not necessary for a plaintiff to establish his cause of action against the defendant therein. This remains for a trial on the merits. Rudman v. Hawkins, 226 S.W.2d 491 (Tex.Civ.App.—Eastland, 1950, no writ); Knight v. Puett, 277 S.W.2d 172 (Tex.Civ.App.—Austin, 1955, no writ); Arnold v. Wheeler, 304 S.W.2d 368 (Tex.Civ.App.—San Antonio, 1957, n. r. e.); Burgess v. F. E. Hill Co., 329 S.W.2d 354 (Tex.Civ.App.—Waco, 1959, writ dism’d); Smith v. Crockett Production Credit Association, 372 S.W.2d 954 (Tex.Civ.App.—Houston, 1963, no writ). However, where a petition alleged defendants “made and delivered to petitioner ‘the note hereto attached as a part hereof, marked A; and the note contains the usual promise to pay, for a valuable consideration’ ” the allegations were sufficient to state a cause of action, especially where the note was attached and made a part of the petition. Fennell v. Morrison, 37 Tex. 156.

The Second Point asserts error of the court in attempting “ * * * to raise, for the first time, venue facts in its controverting affidavit”. Since we have already held that venue facts were raised in the petition and its exhibits we would only repeat by writing on that point.

By its Third Point appellant contends the trial court committed reversible error in overruling his plea of privilege for the reason that the note upon which appellee’s cause of action was predicated was not executed by McCoy. This raises a point of defense on its merits and is not a proper matter to be considered on a venue hearing. Our Supreme Court has held that the validity of the obligation evidenced by a promissory note payable in Trinity, Texas signed by the party seeking a privilege to be sued in her home county, Harris, under Subdivision 5 of Art. 1995 is a matter which goes only to the merits and has no place in determining venue. Bradley v. Trinity State Bank, 118 Tex. 274, 14 S.W. 2d 810 (Tex.Comm’n App., Sec. 3, 1929, opinion adopted).

In Thomason et al. v. Haskell National Bank, 56 S.W.2d 242 (Tex.Civ.App.—Amarillo, 1938), Thomasons sought to change venue to their domiciliary county from the county of Haskell, where the note sued upon was payable. Mr. Thomason alleged he was an accommodation maker and the note was extended without his knowledge. Our Court held that the question of release of Thomason by an extension of the note without any consideration moving to him was a matter affecting the validity of the contract sued upon and could not enter into the trial of the issues presented by the plea of privilege.

In Perkins v. Super-Cold Southwest Co., 241 S.W.2d 311 (Tex.Civ.App.—Dallas, 1951, writ dism’d), the Dallas Court said: “It [the note] was payable in Dallas County. The proof that it was superseded by another note and contract was defensive matter. Defensive matter has no proper place in a venue hearing.” In any event our Supreme Court has held: “It is * * * [a] well-known principle of the law that, in the absence of an express agreement to the contrary by the creditor, the acceptance of the note by one or more joint obligors bound for a pre-existing debt is not a payment thereof, and does not release other joint obligors who did not sign the note.” Frost et al. v. First State Bank & Trust Co. of Mineral Wells, 276 S.W. 222 (Tex. Comm’n App., Sec. B, 1925, opinion adopted). See also Hill v. Texas Trust Co. of Austin, 236 S.W. 767 (Tex.Civ.App.—Austin, 1922, no writ); Magee v. First State Bank of Chilton, 13 S.W.2d 947 (Tex.Civ.App.—Waco, 1929, no writ).

Our Supreme Court has said: “ * * in the absence of evidence showing that the parties intended to extinguish the original indebtedness by the execution of renewal notes, it will remain in full force and effect.” Chapman et al. v. Crichet, 127 Tex. 590, 95 S.W.2d 360, 96 S.W.2d 64. In our case the oral testimony shows the direct opposite. Such testimony also shows the execution of the original note upon which appellant was a maker and the deed of trust securing its payment. The note, deed of trust and original petition were introduced into evidence and are in the records as exhibits.

The Supreme Court in the Crichet case also held: “The extension of the maturity of the notes while Crichet was primarily bound, even if made without his consent, would not release him,” citing Rowe v. Massey, 54 S.W.2d 1094, 1097 (Tex.Civ.App.—Dallas, 1932, writ refused).

Accordingly, we hold the trial court correctly refused the application for change of venue. The judgment of the trial court is affirmed.


author: DAVIS, Justice.

text:
    Doris M. KETTLER, Appellant, v. Gertrude David STEPHENS, Appellee.
    No. 7846.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 9, 1968.
    Rehearing Denied Jan. 30, 1968.
    William Andress, Jr., Andress, Woodgate, Richards & Condos, Dallas, for appellant.
    Royal H. Brin, Jr., Claude R. Miller, Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellee.
   DAVIS, Justice.

A will contest. Benjamin H. Stephens executed his last will and testament on October 20, 1960, revoking all prior wills and codicils theretofore made. On August 13, 1963, he executed a written codicil to his last will. He passed on January 7, 1965. The last will and codicil were filed for probate in the County Court of Dallas County by Gertrude David Stephens, who was named as independent executrix, a sister-in-law, on January 7, 1965. Doris M. Kett-ler, a granddaughter, filed a contest in which she alleged that the testator was not of sound mind or memory, or in any respect capable of making a will. She further alleged that the will and codicil were the result of undue influence. She offered no proof in the probate court. The will and codicil were admitted to probate on July 13, 1965. The contestant perfected her appeal to the District Court.

On October 3,1966, the case went to trial in the District Court. The jury answered all the special issues in favor of the proponent. The contestant has perfected her appeal and brings forward four points of error.

By her points, contestant says the trial court erred in excluding the testimony of Bessie Mae Roe, under Art. 3716 Vernon’s Ann.Civ.St., regarding the mental conditions of the testator and the undue influence that was exercised upon him, because Bessie Mae Roe was not a party to the suit nor an heir or legal representative; in excluding the testimony of testator’s only surviving daughter, Betty Jean Perry, regarding transactions with testator when contestant tried to call such witness under the adverse witness rule; in excluding the testimony of a conversation between testator and Joe C. Stephens, Jr., (deceased prior to the trial) as hearsay; and, contestant alleged the admissibility of the testimony or evidence of Bessie Mae Roe and Betty Jean Perry amounted to such a denial of the rights of the contestant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.

To give a full history of all the marriages, action, experiences and ramifications in this case would make quite a story. We will make it as short as possible.

Testator was an excellent and substantial business man. He was married twice. He had one daughter by his first marriage, Bernice Stephens Atkinson, who passed away December 24, 1959, and left two granddaughters, viz.: Doris Kettler and Jeanne Shaw, surviving. Testator’s first marriage was terminated by divorce in 1916. He had one daughter by his second marriage, Betty Jean Stephens Perry, who survives him. His second marriage was terminated by divorce in 1948. His second wife had already passed away. He was about ninety (90) years of age when he executed his last will and testament, and was about ninety-three (93) years of age when he executed the codicil.

Testator’s granddaughters, Doris Kett-ler and Jeanne Shaw, probably at the insistence of Doris Kettler, filed a civil suit against him in 1962. It was this suit that caused testator to make the codicil to his last will and cut the contestant out of everything but Five and no/100 ($5.00) Dollars. Testator’s deposition was taken in that suit and he swore positively that the allegations in the suit were false and caused him to make the last change in his last will by the codicil.

Bessie Mae Roe filed a suit against testator in 1963 in which she alleged that she was testator’s common law wife and was seeking a divorce and a division of their community property. She had been employed by testator for about twenty (20) years prior to the time she filed suit. She was named as a beneficiary under the will, provided she was still in his employ. She had a son, 4 or 5 years of age, who was in an orphan home at the time she started working for testator. He permitted Mrs. Roe to bring the boy there,and he reared and educated him as though the boy was his son.

In order to secure the favorable jury findings and get the last v9ill and codicil admitted to probate in the District Court, the proponent offered evidence that the testator was an excellent and intelligent business man, fully capable to take care of scientific business affairs, and that he was not unduly influenced in making them. She offered testimony to show that testator started working for the Cotton Belt Railroad when he was only fifteen (15) years of age and became its youngest traveling auditor by the time he became twenty-one (21) years of age. He was one of sixteen (16) men that organized or formed the Magnolia Oil Company. He served as a director for Standard Oil Company. He was a technical ad-visor to Secretary Harold Ickes, by appointment of President Franklin D. Roosevelt, during World War II. He helped to organize the Mercantile National Bank, Dallas, Texas, was Chairman of the Board of Directors for a long time and continued to serve on the Board of Directors until his death; he attended every monthly meeting the year prior to his death. He was a member of the Board of Directors of the Dallas Federal Savings and Loan Association, Dallas, Texas, and served until his death. He was a member of the Board of Directors and a member of the Executive Committee of the Southwestern Drug Corporation, Dallas, Texas. He owned a large amount of stocks in each of these corporations. The testator attended all the meetings of the Boards of Directors, including those that were held in October, 1960, the month he executed his last will, and in August, 1963, the month he executed the codicil to his last will. The evidence shows that he was mentally capable to make and execute his last will and codicil. There is no evidence that testator was unduly influenced by any person to make the last will and/or codicil.

The testimony offered by proponent was by the following witnesses: William E. Collins, Harold F. Kleiman, and Gene Emery, Lawyers, 2300 Republic National Bank Building, Dallas, Texas; Thomas S. Walker, Lawyer, employed by Dallas Federal Savings and Loan Association since December 15, 1928; Mrs. Mildred Swinney and Cynthia Wolfe, witnesses to the last will, secretaries employed by Thompson, Knight, Wright and Simmons, Lawyers, Dallas, Texas; William C. H. Jackson, employed by Dallas Federal Savings and Loan Association since February 1, 1923; Julius Schepps, a member of the Board of Directors, Mercantile National Bank; Milton Brown, Executive Vice President, President, Chairman of the Executive Committee, and Chairman of the Board of Directors of the Mercantile National Bank who had known the testator for about 47 years; Dr. Edwin M. Cleveland, a medical physician, who had treated the testator for minor illnesses, beginning in 1960, testified about testator’s excellent mental capacities, and witnessed the codicil to his last will on August 13, 1963; Lloyd Bowles, President of Dallas Federal Savings and Loan Association, and Chairman of the Board of Directors, who had known the testator since 1946; Ben Wooten, who was Chairman of the Board of Directors of Dallas Federal Savings and Loan Association and had known the testator since 1935; C. B. Sample, Secretary and Treasurer of Southwestern Drug Corporation; and, Dr. George M. Underwood, Sr., a retired physician, who practiced in Dallas from October 1919 until 1965, a member of the Dallas Medical and Surgical Clinic, who was testator’s physician from 1952 until 1962, who also testified as to his excellent mental capacities.

Now, as to the evidence in the case that was offered by the contestant: There is no evidence, direct or by bill of exceptions, that the testator was not mentally competent to make the will and the codicil at or about the time he executed them. He was very alert and active and was cognizant of the nature and extent of his property. He well knew his intentions and had expert knowledge as to the operation of the various trusts that was created by his last will and codicil. Also, such matters as estate taxes and the costs of administration. He knew what disposition he was making of all his property, and, what he wanted to make of it.

There is no evidence, direct or by bill of exceptions, that will show that the last will and/or codicil was procured or caused by any undue influence, at or about the time he executed them.

Bessie Mae Roe, who was actually “claiming” herself to be the common law wife of the testator, and Betty Jean Perry, a daughter of the testator, were heirs, de-visees and legatees and were actual parties to the contest. Art. 3716 R.C.S.; 61 Tex. Juris 2nd 448, Sec. 292; Thomason v. Burch, Tex.Civ.App., 1949, 223 S.W.2d 320, W.R., N.R.E.; Apel v. Gallagher, Tex.Civ.App., 1955, 278 S.W.2d 527, W.R.,N.R.E.; Johnson v. Poe, Tex.Civ.App., 1948, 210 S.W.2d 264, W.R.,N.R.E. Bessie Mae Roe who was “claiming” to be the common law wife of the testator was definitely precluded from testifying under Art. 3716 R.C.S. She was “claiming” an interest in testator’s estate. Adams v. Adams, Tex.Civ.App., 1939, 132 S.W.2d 497, N.W.H.; Brown v. Brown, Tex.Civ.App., 1938, 115 S.W.2d 786, N.W. H.; Holman v. Holman, Tex.Civ.App., 1926, 283 S.W. 271, reversed on other grounds, Tex.Sup.Ct., 1926, 288 S.W. 413. See, also, Chandler v. Welborn, 1956, 156 Tex. 312, 294 S.W.2d 801; and, Ragsdale v. Ragsdale, 1944, 142 Tex. 476, 179 S.W.2d 291; Merriman v. Lary, Tex.Civ.App., 1947, 205 S.W.2d 100, W.R.,N.R.E.; Sheffield v. Leech, Tex.Civ.App., 1949, 221 S.W.2d 789, W.R.,N.R.E.

The evidence was fully sufficient to support the jury’s findings. There was no evidence offered by the contestant that the testator did not have the mental capacity to execute the last will and/or the codicil at, or about the time, of their execution, or that he was unduly influenced to do so. The points are overruled.

The judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    Paul Crawford JAHANT, Appellant, v. Octavia B. OGDEN et vir, Appellees.
    No. A 1732.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 7, 1968.
    M. W. Garcia, Jr., San Antonio, for appellant.
    Bond Davis, Boyle, Wheeler, Gresham, Davis & Gregory, San Antonio, for appel-lees.
   On Motion to Extend Date for Filing Transcript and Statement of Facts.

PER CURIAM.

Appellant filed this motion on January 24, 1968, for an extension of time within which to file the transcript and statement of facts and appellees have contested said motion. Final judgment was entered on September 9, 1967, and appellant’s amended motion for new trial was overruled by operation of law on November 13, 1967. Appellant duly filed his bond on November 29, 1967.

The record does not show any other steps taken by appellant to perfect his appeal until this motion for extension of time was filed. As good cause for said extension, appellant, through his attorney, avers that this is a child custody suit and that he did not determine to proceed with this appeal until after the child had returned from a visit to appellees in New York from December 23 to December 30, 1967, in accordance with said judgment. The motion does not show when appellant requested the transcript or statement of facts, but even if requested on December 30th, that was the 47th day after the motion for new trial was overruled.

Rule 386, Texas Rules of Civil Procedure, requires the appellant to “file the transcript and statement of facts with the clerk of the Court of Civil Appeals within sixty days from the rendition of the final judgment or order overruling motion for new trial, * * *; provided, by motion filed before, at, or within a reasonable time, not exceeding fifteen days after the expiration of such sixty-day period, showing good cause to have existed within such sixty-day period why said transcript and statement of facts could not be so filed, the Court of Civil Appeals may permit the same to be thereafter filed upon such terms as it shall prescribe.” These provisions are mandatory and jurisdictional and must be complied with in order to invoke appellate jurisdiction. Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587 (1952); Whitt v. Hartgraves, 412 S.W.2d 344 (Tex.Civ.App.—San Antonio 1967, no writ).

Rule 376, T.R.C.P., requires the appellant to promptly request his transcript, and Rule 377, supra, requires the same with reference to the statement of facts. The fact that appellant did not decide to appeal this case until over 47 days after the motion for new trial was overruled is not good cause for failure to timely file this record. Dellerman v. Trager, 327 S.W.2d 667 (Tex.Civ.App.—San Antonio 1959, writ dism’d). See also: Wigley v. Taylor, 393 S.W.2d 170 (Tex.Sup.1965); Patterson v. Hall, 421 S.W.2d 921 (Tex.Civ.App.—Austin 1967, no writ) ; Whitt v. Hartgraves, supra; Williams v. Williams, 392 S.W.2d 539 (Tex.Civ.App.—Tyler 1965, no writ).

Appellant’s motion for extension of time is denied.