text:
    Jerry Wayne TRUSSELL alias Sammy Long, Appellant, v. The STATE of Texas, Appellee.
    No. 40641.
    Court of Criminal Appeals of Texas.
    March 27, 1968.

      Joe K. McGill, Seminole, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION ON MOTION TO REIN- . STATE APPEAL

ONION, Judge.

The record has been approved as required by Article 40.09(9), Vernon’s Ann. C.C.P., and we will now consider the appeal on its merits.

This cause must be reversed for we deem the evidence insufficient to support the jury’s verdict. Appellant’s ground of error #3 is well taken.

One of the essential elements of the offense charged was that the appellant removed the mortgaged property (an automobile) from Gaines County with intent to defraud the person holding such mortgage or lien.

The State relied upon the testimony of four witnesses, none of whom possessed any personal knowledge that appellant ever removed the automobile in question from Gaines County.

Dwayne Herman, Vice President of the Seminole State Bank, testified that on October 12, 1965, he loaned appellant $312.00 on a 1959 Oldsmobile upon the representation that appellant was to use such sum as capital in the operation of a cafe. It appears that appellant used the name Sammy Long and that the title to the automobile was in such name. Fifteen days after the first monthly payment was past due and as a result of appellant’s checking account being overdrawn, Herman made an unsuccessful effort to locate appellant or the Oldsmobile in Gaines County. Some two months later Herman found the automobile in a wrecking yard in Albuquerque, New Mexico. It was returned to Gaines County and sold. No evidence was offered as to how the wrecking yard obtained possession of the car except that Herman related, “They’d picked it up.”

Gary Shipley, an employee of the bank, merely testified that he drove the automobile from Albuquerque to Seminole after its recovery.

Sammy Carl Long, Jr., testified that appellant was his brother-in-law, that appellant’s name was Jerry Wayne Trussed, and that he did not authorize appellant to sign his name to the chattel mortgage given to the said bank.

Sheriff Alton Montgomery testified that appellant and the Oldsmobile were located in Albuquerque. No dates, however, were given as to just when appellant and the automobile were found in New Mexico. There is nothing to show that it was even at approximately the same time.

From the hearing on the motion for new trial, we learn that appellant was transported by the authorities from Albuquerque to Paris, Texas, and later released to the Sheriff of Gaines County, where this trial was had.

It is observed that no witness testified to having seen the appellant remove the Oldsmobile from Gaines County, and no witness testified that appellant was in possession of the said automobile in Albuquerque or any place outside of Gaines County.

The proof offered does not even raise the prima facie evidence presumption contained in Article 1558, supra.

In view of our disposition of the case, we need not consider appellant’s remaining grounds of error.

Finding the evidence insufficient to support the conviction, the judgment is reversed and the cause remanded.

      . Article 1558, V.A.P.C., in effect at the time of appellant’s trial (March 28, 1967) has now been redefined as Sees. 25.02 and 25.03, VATC, Bus. & C.


source: Caselaw Access Project

author: ONION, Judge.

license: Public Domain

text:
    William E. HUTCHINS, Appellant, v. The STATE of Texas, Appellee.
    No. 40990.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1968.
    Rehearing Denied April 24, 1968.

      Blanchard, Clifford, Gilkerson & Smith, by George E. Gilkerson, Lubbock, for appellant.
    Fred E. West, County Atty., Carson Smith, Jack Layne and T. John Ward, Asst. County Attys., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Operating an Open Saloon; the punishment, a fine of $100 and court costs.

The trial was before the court without the intervention of a jury.

Initially, appellant makes a two-pronged attack upon the sufficiency of the allegations of the information to show a violation of Article 666-3 Vernon’s Ann.P.C., contending that the court erred in overruling his motion to set aside such information.

Omitting the formal parts, the material portion of the information reads as follows :

“ * * * that in the County of Lubbock, in the State of Texas, on or about the 19th day of August A.D. 1966, one William E. Hutchins, did then and there unlawfully operate an open saloon, to-wit: a room in the Holiday Inn Parkway Motel where his employee Billie Meyers Bell did on said date sell whiskey by the drink to Keith E. DeShane and William E. Thomas * *

First, appellant contends the information fails to define an “open saloon” in the statutory language, to-wit:

“ * * * any place where any alcoholic beverage whatever, manufactured in whole or in part by means of the process of distillation, or any liquor composed or compounded in part of distilled spirits, is sold or offered for sale for beverage purposes by the drink * * See Article 666-3(a), supra.

Appellant’s reliance upon Weinber-ger v. State, 131 Tex.Cr.R. 308, 98 S.W.2d 356 is misplaced. In Weinberger the information stated only a legal conclusion and did not state facts which would bring the place in question wichin the statutory definition of an open saloon. In the case at bar the information sets forth sufficient facts to show that the place alleged to have been operated by appellant to come within the statutory definition of an open saloon.

We reject appellant’s contention that to be valid the information must include the exact words of the statutory definition of an “open saloon.” We conclude that the information sufficiently sets forth the offense in plain and intelligible words in such a manner as to enable a person of common understanding to know what is meant and to give the accused notice of the particular offense with which he is charged.

Secondly, appellant urges that the .information failed to charge an offense under Article 666-3, supra, since there was no allegation that the appellant was either directly or indirectly interested in the operation of an open saloon.

Article 666-3(b) provides the following:

“It shall be unlawful for any person, whether as principal, agent, or employee, to operate or assist in operating, or to be directly or indirectly interested in the operation of any open saloon in this state.”

The information sufficiently charged that the appellant did “unlawfully operate an open saloon.” Since the statute is framed in the disjunctive, there was no necessity for the additional averment that appellant was “directly or indirectly interested” in the operation of an open saloon. Cf. Willson’s Criminal Forms, 7th Ed., Sec. 868, p. 223.

In his second ground of error appellant challenges the sufficiency of the evidence to sustain the conviction.

On August 19, 1966, between 7:00 and 7:30 p. m., Inspectors DeShane and Thomas from the Texas Liquor Control Board went to the Holiday Inn on Parkway Drive in Lubbock, Texas. They entered a small room containing a bar and tables called the “Roman Room” and were greeted by Mrs. Billie Meyers Bell (Allen). No other persons were present. After they had stated that they were not guests at the motel, Mrs. Bell (Allen) inquired if they would care for something to drink and the inspectors each ordered a bourbon and coke. Mrs. Bell mixed the drinks in their presence using coke and Champion bourbon, and then served the inspectors who paid for the drinks. When the drinks had been consumed the inspectors ordered a second round upon Mrs. Bell’s inquiry. Shortly after these drinks had been served and paid for, Inspectors Goetz and Albro entered the “Roman Room” and presented a search warrant to Mrs. Bell who called the manager of the motel. Inspectors DeShane and Goetz identified appellant as the manager who appeared four or five minutes later. Upon being informed of the violation Goetz related that appellant stated that he had bought the drinks for DeShane and Thomas, who had left the room and who had not been identified as being from the Liquor Control Board; that the liquor in the bottle was his; that he did not know he was violating the “private club registration permit” law.

Inspector Goetz confiscated a partially filled bottle of Champion bourbon which was introduced into evidence over appellant’s objection. A blank form of a membership card for the “Holiday Inn Parkway Roman Room” which was taken from a number of similar cards on the bar was introduced without objection. Said card contained printed rules to the effect that the “Roman Room” was for members and their guests only, and that “Roman Room” personnel could not handle liquor. Inspector Goetz testified that the Liquor Control Board records indicated that at the time neither the “Roman Room” nor the “Holiday Inn Parkway” had a private club registration permit, though such club had since obtained such a permit.

Mrs. Billie Meyers Bell (Allen) testified that she was employed as a cashier of the restaurant at the Holiday Inn on the 19th day of August, 1966, and she knew the appellant as the Manager of the Holiday Inn in question. She refused to answer other questions claiming her privilege against self-incrimination.

Appellant offered no evidence in his behalf.

Appellant contends that the evidence does not show his participation or connection in the sale of the whiskey, that the membership card demonstrates Mrs. Bell (Allen) was acting outside the scope of her authority as an employee, and that there is no showing the confiscated bottle of Champion bourbon was the bottle used to serve Inspectors De-Shane and Thomas.

We deem the evidence sufficient to support appellant’s conviction.

In the trial of one who has been charged with the offense of operating an open saloon, testimony as to a single sale of intoxicating liquor by the drink is sufficient to sustain a conviction. Austin v. State, 139 Tex.Cr.R. 63, 138 S.W.2d 1080; Shelton v. State, 139 Tex.Cr.R. 126, 138 S.W.2d 1078 (two drinks). Such a conviction is also sustained by the direct testimony of the buyer as to his purchase of a drink of liquor. Walker v. State, 138 Tex.Cr.R. 660, 137 S.W.2d 1033. The prosecution need not show that the sale was made by the accused himself; testimony of a sale by another at the direction of the accused is sufficient. Shelton v. State, supra. Appellant’s connection with the “Roman Room” and the Holiday Inn as manager under the circumstances presented warrants his conviction, despite the intendment of any printing on an unused membership card. See Article 666-3a, Sec. 6, V.A.P.C. Whether the confiscated whiskey bottle was the one actually used to serve the inspectors is of no material consequence since there was testimony by Inspector DeShane that he saw Champion bourbon being used to mix his drink of bourbon and coke.

Appellant’s second ground of error is overruled.

In his third ground of error appellant urges the trial court erred in admitting into evidence the bottle of Champion bourbon seized pursuant to an invalid search warrant. We need not pass upon the validity of the search warrant, for the search was valid without a search warrant since the “Roman Room” was holding itself out to be a club. Article 666-15e, Sec. 4, V.A. P.C. The State also cites and relies upon Articles 666-31 and 666-42, V.A.P.C.

If the bottle of bourbon was improperly admitted, it is presumed the trial judge as the trier of the facts disregarded the same. 57 Tex.Juris.2d, 328, 329, Sec. 571.

The judgment is affirmed.

      . It appears that 18 cases of beer stored in the “Roman Room” at the time also were confiscated by Inspector Goetz.


author:
DICE, Judge.
      MORRISON, Judge

text:
    Jimmy Ray CORBIN, Appellant, v. The STATE of Texas, Appellee.
    No. 41147.
    Court of Criminal Appeals of Texas.
    March 27, 1968.

      Alfred Clyde, Forth Worth (on appeal only), for appellant.
    Frank Coffey, Dist. Atty., Gordon Gray and Ron Quillin, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for burglary; the punishment, twelve years.

It was undisputed that a building occupied by the Big State Mercantile Company in the city of Fort Worth was broken into and burglarized.

On the night the burglary was discovered, appellant was stopped and arrested, around 2 a.m., by Officer Gene Pappas, for a traffic violation while driving his automobile upon a public street in the city. At the time, a companion, Rex Denham, was riding with appellant in the front seat. After the automobile was stopped, the. arresting officer, with the aid of a flashlight, observed some tools on the back floorboard on the driver’s side. The tools consisted of a sledge hammer, a crowbar, two chisels, two screwdrivers, two pairs of pliers, a punch, and also a flashlight. They were later removed from the vehicle after it had been taken to the city hall. A search of appellant at the scene of the arrest by the arresting officer disclosed that he had several rolls of coins in his right front pocket and a large number of coins in his left front pocket. After he was taken to the city jail, appellant was again searched and the rolls of coins, and loose change amounting to $31.29, were taken from his pockets. In addition to the coins and change, a small piece of metal which appeared to be a piece of a lock was found in appellant’s pocket. Appellant’s companion was also searched and found to have on his person the sum of $781 in currency and some checks payable to the Big State Mercantile Company.

In his first ground of error, appellant insists :

“The trial court erred in admitting into evidence anything that transpired after the arrest with reference to what was found in the defendant’s car, or on his person, because under the facts, the arrest was illegal per se, and without just cause.”

Preston v. United States, 376 U.S. 364, 84 S.Ct. 81, 11 L.Ed.2d 777, is relied upon by appellant in support of his contention that the search of his automobile was unlawful.

It should be pointed out that the tools on the back floorboard of appellant’s automobile were in open view of the officer when he went to the vehicle after stopping appellant. Although later removed from the vehicle at the city hall, the tools were not, in fact, obtained as the result of a search. See: Nunez v. United States, 370 F.2d 538 (Fifth Circuit, 1967); Miller v. United States, 356 F.2d 63 (Fifth Circuit, 1966); Gizzo v. State, 160 Tex.Cr.R. 593, 272 S.W.2d 898; Giacona v. State, Tex.Cr. App., 372 S.W.2d 328, cert. denied, 375 U.S. 843, 84 S.Ct. 92, 11 L.Ed.2d 70. Such facts distinguish the case from Preston v. United States, supra, where the evidence was obtained as a result of the search of an automobile at a later time and at another place following the arrest of the accused and his companions after it was taken to the police station and towed to a garage.

In relating the facts and circumstances surrounding appellant’s arrest, Officer Pap-pas testified that he first observed appellant’s automobile around 2 a.m. when it was stopped at a street intersection. It appeared to him that a man had gotten out of the car, and was standing near a coin-operated paper rack — which aroused the officer’s suspicions, because he thought “they” were possibly trying to steal or break into it. He then followed the automobile as it was driven away and did not stop appellant until he clocked him driving forty miles per hour in a thirty-mile zone. The officer testified that when he first went to appellant’s automobile he asked for his driver’s license, and appellant replied that “he did not have any.” The officer looked into the car and saw the tools on the back floorboard. He then had appellant get out of the car and, when he did, the officer observed a bulge in his right front pocket. The officer thought it was possibly a weapon. He then searched appellant and found the rolls of coins and a large amount of change in his pockets. He did not take the coins or change at the time, and placed appellant in the patrol car.

About that time another officer drove up and appellant, after saying, “to hell with this,” jumped out of the car and started running. Officer Pappas gave pursuit and apprehended him after he had run some hundred yards. Appellant was returned to the scene and, with his companion, was taken to the city jail, where the evidence in question was taken from his person by a jail officer in the presence of Officer Pappas.

Officer Pappas testified that he stopped appellant for speeding and “also for being suspicious [sic]” and that after taking appellant to the city jail he issued two traffic tickets, one for speeding and one for “no operator’s license,” and placed them in appellant’s belongings after he was placed in jail.

Appellant swore that he was not, on such occasion, speeding and driving his automobile in excess of thirty miles per hour.

The trial judge resolved the disputed issue against appellant and, under the facts, did not err in admitting the evidence of appellant’s arrest and search on the occasion in question. Under the record, the search of appellant’s person was legal, being incident to his lawful arrest for a traffic violation. Soileau v. State, 156 Tex.Cr.R. 544, 244 S.W.2d 224; Brown v. State, 159 Tex.Cr.R. 306, 263 S.W.2d 261; Griffey v. State, 159 Tex.Cr.R. 141, 265 S.W.2d 115; Richardson v. State, 163 Tex.Cr.R. 585, 294 S.W.2d 844.

The ground of error is overruled.

In his second ground of error, appellant insists that the court erred in admitting the evidence of his arrest and search because it was not shown that he was taken before a magistrate, as required by Art. 14.-06 of the Code of Criminal Procedure.

No objection appears to have been made by appellant to any evidence at the trial on such ground. In his brief, appellant cites no authority in support of his contention but argues that the provisions of Art. 14.06 are mandatory and that it was incumbent upon the state to show a compliance with the statute or demonstrate why it could not be complied with prior to the time the search was made. We do not agree. A failure to comply with the provisions of Art. 14.06, supra, does not vitiate a search made incident to a lawful arrest. As we understand the provisions of Art. 14.06, supra, the purpose of taking an accused before a magistrate is for the magistrate to give him the warnings and discharge the duties required by Art. 15.17 of the Code. Such warnings are not prerequisite to the search of the person of the accused.

The ground of error is overruled.

In his third and last ground of error, appellant complains of the court’s charge on guilt or innocence.

The record reflects that appellant’s objections to the charge were dictated to the court reporter by counsel at the close of the evidence on the issue of guilt or innocence. In Smith v. State, Tex.Cr.App., 415 S.W.2d 206, we held that such practice was not in compliance with Arts. 36.14 and 36.15, C.C. P., which provide that objections and requested charges must be made in writing. Appellant’s complaint to the court’s charge is therefore not properly before us for review.

The judgment is affirmed.

MORRISON, Judge

(concurring).

In addition to the authorities cited in the majority opinion relating to the officer’s authority to search for what appeared to be a weapon in appellant’s pocket, we call attention to the following cases: United States v. Washington, 249 F.Supp. 40 (N.D.Ill.1965); People v. Thomas, 31 Ill.2d 212, 201 N.E.2d 413, cert. den. 380 U.S. 936, 85 S.Ct. 948, 13 L.Ed.2d 824 (1965); Brinegar v. State, 97 Okl.Cr. 299, 262 P.2d 464 (1953); State v. Scanlon, 84 N.J.Super. 427, 202 A.2d 448 (1964); Elliott v. State, 173 Tenn. 203, 116 S.W.2d 1009 (1938).

ONION, J., joins me in this concurrence.


author: MORRISON, Judge.

text:
    Ex parte Willie GRAY.
    No. 41176.
    Court of Criminal Appeals of Texas.
    March 27, 1968.
    Jack L. Beezley, Dallas, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is an appeal from an order entered in a habeas corpus proceeding remanding relator to custody for extradition to the State of Mississippi. Relator was convicted, sentenced and paroled in Mississippi for the offense of grand larceny. He is alleged to have violated the conditions of his parole and extradition is sought under Art. 51.13, Sec. 3, Vernon’s Ann.C.C.P.

At the hearing the State introduced into evidence the Governor’s warrant, making out a prima facie case, and the requisition and supporting papers executed by the Lieutenant and Acting Governor of Mississippi. Among these papers were (1) the indictment upon which relator’s conviction was based, and (2) the judgment entered in relator’s cause in Mississippi.

Relator first contends that the judgment introduced by the State was not in fact a judgment, but rather was a “Certified Copy of Sentence”. We first note that while the document does contain such title, it also contains the heading “JUDGMENT”. The document also contains all essential elements of a judgment and sentence. We note further that Art. 51.13, supra, provides that either “a copy of a judgment of conviction or of a sentence imposed in execution thereof” will suffice to support extradition of a convicted fugitive accused of breaking the conditions of his parole.

Relator next contends that the indictment supporting the conviction giving-rise to this cause is defective in that it does not specifically allege the precise date of the commission of the offense charged, but alleges only the month and year.

The question of the validity of the indictment is for the Courts of Mississippi and not for this Court.

The judgment is affirmed.


text:
    Russell C. THOMPSON, Leona C. Gauthier and John W. Hewatt, Jr., Appellants, v. The STATE of Texas, Appellee.
    No. 41120.
    Court of Criminal Appeals of Texas.
    March 20, 1968.
    Rehearing Denied April 24, 1968.
    Percy Foreman, Luther E. Jones, Jr., Corpus Christi, for defendants Thompson and Gauthier.
    Carol S. Vance, Dist. Atty., James C. Brough and Ted Hirtz, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The appellants were found guilty of aggravated assault on a peace officer. Thompson was fined $500.00, and Gauthier was assessed a punishment of 30 days in jail and a fine of $1,000.00. Appellant Hewatt filed a motion to dismiss his appeal, and the same is granted.

Appellants Thompson and Gauthier designate two “appellate points” which we shall consider as grounds of error. Their first is that the information is insufficient, because it fails to contain two essential elements of the offense, to-wit: that appellants did use unlawful violence on the officer alleged to have been assaulted, and that appellants had an intent to injure the officer. Even though no motion to quash the information was filed, and even though they concede that the information is sufficient under Texas statutory procedure, they insist that it is insufficient under certain holdings of the Supreme Court of the United States. Reliance is had upon certain statements found in their opinions in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92; United States v. Cook, 84 U.S. (17 Wall.) 168, 21 L.Ed. 538; In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682; Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Klopfer v. State of North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1; and Washington v. State of Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019.

The State in opposition to such contention points to Portnoy v. United States, 1 Cir., 316 F.2d 486, cert. den. 375 U.S. 815, 84 S.Ct. 48, 11 L.Ed.2d 50, and Pino v. United States, C.A.D.C., 370 F.2d 247, cert. den. 387 U.S. 922, 87 S.Ct. 2038, 18 L.Ed. 2d 977.

We conclude that the authorities relied upon by appellants are not here controlling and that the information is sufficient to properly inform the accuseds of the accusation against them.

Appellants’ ground of error No. 1 is overruled.

Their second ground of error is that there is no evidence that Detective Wood was in the lawful discharge of his duties as a peace officer of the City of Houston at the time he was assaulted. Detective Wood of the Burglary and Theft Division of the Houston Police testified that he secured his apartment free by acting as a Security Officer at the apartment complex, and that at approximately 2:00 a. m. on the night in question he was called and instructed to go to Apartment 126 to quiet some people who were making excessive noise therein. He stated that as he approached the apartment he heard singing, music and loud voices, and that he knocked on the door, was admitted and asked who had the apartment in question under rent. One man identified himself as the occupant, and Wood identified himself as a City of Houston Detective and instructed him to break up the party. According to his testimony, one of the appellants asked to see his credentials and then passed them to the other appellants, who inspected the same before returning the identification folder with his picture to him.

It was after this that each of the appellants struck him, forcing him down a flight of stairs and causing bruises upon his body. A police wagon arrived, and the appellants were carried to jail. A number of other persons were at the party, but they were not arrested. His testimony as to the assault was corroborated by his son and other witnesses.

The jury chose to believe Wood’s testimony and disbelieve the testimony of appellants and the other members of the party who testified that Wood only showed the apartment occupant a card indicating that he was a security guard and failed to make his identity as a peace officer known to them. This the jury had a right to do.

The judgments of conviction of appellants Thompson and Gauthier are affirmed.

      . Omitting the formal parts, the information reads as follows: “(T)hat ⅞ ⅜ * RUSSELL O. THOMPSON and LEONA O. GAUTHIER heretofore on or about the 12th day of February, A.D., 1967, in said County of Harris and State of Texas, did then and there make an aggravated assault in and upon Ralph Wood being then and there a peace officer, to-wit, a police officer of the incorporated city of Houston, Texas, there situate, the said officer being then and there in the lawful discharge of the duties of his office as such officer, which fact was then and there well known to said * ⅞ * RUSSELL O. THOMPSON and LEONA C. GAUTHIER.”
      The information is in substantial compliance with the form set out in Willson’s Criminal Forms, Section 1471.


author: BELCHER, Judge.

text:
    Victor McLAUGHLIN, Appellant, v. The STATE of Texas, Appellee.
    No. 41117.
    Court of Criminal Appeals of Texas.
    March 20, 1968.
    Rehearing Denied. April 24, 1968.
    Fred D. Moore, Dallas, for appellant.
    Henry Wade, Dist. Atty., Joe K. Hend-ley, Myron Garner and Kerry P. Fitz-Gerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for robbery with firearms; the punishment, fifty years.

The appellant challenges the sufficiency of the evidence to support the conviction.

The testimony of the state reveals that about 2:05 a. m., January 4, 1967, Thelma Brown, night manager of a 40 lane bowling alley, sold two cigars to a colored man who appeared “like he was looking in the cash register.” This man was wearing a red, maroon-colored shirt, gray hat, gray coat and gloves. About 2:15 a. m., Thelma again saw this man holding a pistol in the back of the porter, Harold Gooch, as they approached her at the cash register. The robber made Gooch lie on the floor and demanded of Thelma to get the “big money” which was kept in a drawer beneath the cash register or he would shoot her and when she opened the drawer he took the big brown envelope and placed it under his coat. The robber took the money out of the cash register and placed it in a stocking cap. The man pulled the telephone from the wall and then forced Thelma and Gooch into a back storeroom where he told them to stay ten minutes or he would start shooting.

Thelma and Gooch left the storeroom after about five minutes and notified the police. About 3 a. m., January 4, 1967, Thelma identified the appellant in a four-man lineup as having previously worked at the bowling alley and she further testified that it had been a week since he had worked there. Thelma stated that while working there the appellant had gone near the cash register, and that the “big money” was kept in a drawer under the cash register. Thelma also identified a man in the lineup as the man who held the pistol on her during the robbery. The robber took about $600 in money from Thelma without her consent as she was in fear of her life and bodily injury. While testifying, Thelma identified State’s Exhibits Nos. 1 through 4 and No. 6 which included the pistol, the hat, gloves, and sweater worn by the man with the pistol; and she identified State’s Exhibit No. 5 as the brown envelope kept under the cash register which the robber took from her.

Officer Smith testified that while with Officer Bryant about 2:25 a. m., January 4, 1967, they observed an automobile travel-ling at an excessive rate of speed which they pursued and after seeing it “run a blinking light,” they turned on the red light and pursued it until it stopped. Officer Smith asked the appellant, who was driving the car, for his driver’s license, and after telling him that he had been stopped “for going too fast,” the appellant replied that, “I don’t have a driver’s license, but it’s all right, it’s not my car.” Smith had to walk around the appellant twice in going to the car where he saw a colored man lying down in the back seat, and when Smith asked, the appellant told him the car belonged to the other occupant of the car. Officer Smith testified that as he walked around the car, appellant was “directly behind me * * * too close to me in my opinion,” and as Bryant kept the appellant away, he found an insurance policy in the glove compartment which revealed that the car belonged to J. M. Kindred. When Officer Smith opened the right rear door he saw a pistol, a toboggan hat filled with money, and a brown envelope on the back floor board of the car, and a purple sweater on the back seat. As Officer Smith stepped from the car, he asked the appellant where the money came from and appellant pointed to his companion and said, “He works on North Central and we just closed up.” Appellant’s companion then pointed at appellant and said, “He works on North Central,” and then identified himself as Bruce Miller. Officer Smith testified that the license plates on the car “was wired on.”

Officer Bryant testified that he and Officer Smith saw a car speeding about 2:25 a. m., January 4, 1967, and after pursuing and stopping it he went to the right hand side, and that he observed appellant’s companion in the rear seat taking off a purple sweater and putting on a white shirt. Bryant also saw a pistol and some money in a toboggan-type hat in the back seat of the car, and while testifying, identified State’s exhibits Nos. 1, 5, 6, and 8, as articles found in the car.

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

The appellant contends in his brief that the clothing, gun, money, and an insurance policy were improperly admitted in evidence on the ground that they were obtained as the result of an unreasonable search and seizure.

No objection was made at the time of the offer and admission into evidence of said articles on the ground that they were obtained as a result of an unreasonable search and seizure. No error is presented.

While working at the bowling alley until two weeks before the robbery, the appellant had opportunity to know that the “big money” was kept under the cash register. When the robber exhibited the pistol he demanded of Thelma that she get the “big money” from under the cash register which was in a brown envelope and which he put under his coat, and he placed the other money in a stocking cap. Within fifteen minutes after the robbery, the appellant was apprehended while he was driving an automobile at an excessive rate of speed, and a brown envelope was found in the car which Thelma identified as the one she gave the robber; and she also identified the pistol and sweater found in the car as looking like the pistol used by the robber and the sweater he was wearing’. About forty-five minutes after the robbery, Thelma identified Bruce Miller in a lineup as the robber, and at the same time Thelma identified the appellant as a previous employee of the bowling alley, although she had not seen him during the robbery.

The court charged the jury upon the law applicable to principals.

It is concluded that the facts and circumstances are sufficient to authorize the jury to conclude that the appellant is guilty as a principal in the commission of the offense of robbery as alleged.

The1 judgment is affirmed.


text:
    Marvin Earlon SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 41104.
    Court of Criminal Appeals of Texas.
    March 13, 1968.
    Rehearing Denied April 24, 1968.
    Kenneth W. Gentry, Amarillo, for appellant.
    Gene Compton, Dist. Atty., Toby A. Pri-olo, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for attempted burglary; the punishment, three years.

The testimony of M. T. Roberson, owner and operator of a gun and key shop, was that while he and his wife were in the store about 9:30 p. m., they heard someone walking on the roof of the building, and the person went to the air conditioner on the roof and there was a sound like he turned it over. The air conditioner was about four feet square and located directly over a duct or vent in the roof which extended about two feet from the surface of the roof through the ceiling to about four feet below the ceiling. The air moved about four feet through the duct to enter the store below. The duct or vent was large enough to permit the entrance of a person the size of the appellant. The surface of the roof had a tar base with small gravel on it. The surface around the air conditioner appeared to have been disturbed, and the duct was damaged; that by the removal of the air conditioner a “completed entry was made into the building”; that Roberson was standing “right” below the air conditioner; that he never saw the appellant and he never made a physical entry into the building where he was. There was personal property and merchandise in the store, and Roberson did not give anyone his consent to forcibly enter the store building through the roof or to take anything from it. Roberson notified the officers by telephone and they arrived in a brief time.

Officer Dunham testified that he was four blocks from Roberson’s store when he received a dispatch to go to the store; that on arriving at the rear of the store building he saw a man running about twenty feet from the building; that after the man stopped he noticed a pair of gloves protruding from his pocket; that the man had “white, chalky looking substance” on his jacket, trousers and shoes; that his shoes were scuffed up, that he had “black tar-looking stuff” on the soles, and he had a fresh scrape mark on his left knee; that the air conditioner on the roof had been moved and was damaged. While testifying, Officer Dunham identified the appellant as the person he saw running at the rear of the store and arrested after he stopped about fifty feet away.

As grounds for reversal, the appellant insists that the evidence is insufficient to sustain the conviction; that there is a variance between the allegations of the indictment charging an attempted burglary and the proof showing a completed entry was made into the building; and that the evidence showing that an air conditioner covering a vent hole in the roof was moved is at a variance with the allegations that appellant did “move a roof air conditioner off the air conditioner duct.”

There is no proof that any part of appellant’s body entered the store building or that the introduction by the appellant of anything was used or employed to consummate the criminal intent. In light of the evidence, it is concluded that there was only an attempt to commit burglary and not burglary; therefore, there is no variance between the allegations in the indictment and the proof. 10 Tex.Jur.2d 231, Sec. 74; 4 Branch 2d 883, Sec. 2551. For a discussion of the distinction between burglary and attempted burglary see Russell v. State, 158 Tex.Cr.R. 350, 255 S.W.2d 881.

Another variance is relied on as a ground for reversal in that the evidence shows that the air conditioner covering the vent hole in the roof was moved whereas it was alleged that the appellant moved a roof air conditioner off of the air conditioner duct.

Although, there is evidence referring to the fixture in the opening in the roof as a vent there is also evidence referring to it as a duct. It appears that the words “vent” and “duct” were used synonymously. The variance urged presents no error.

The evidence is sufficient to support the conviction.

The judgment is affirmed.


text:
    Earl BURGESS, Appellant, v. The STATE of Texas, Appellee.
    No. 41159.
    Court of Criminal Appeals of Texas.
    April 3, 1968.

      Edwards, Belk, Hunter & Kerr, by James L. Brennand, El Paso, for appellant.
    Barton Boling, Dist. Atty., Robert D. Earp, Asst. Dist. Atty., El Paso, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

This is an appeal from an order revoking probation.

The appellant was convicted on June 30, 1967, in the 34th District Court of El Paso County for the offense of robbery, and his punishment was assessed at seven years.

The imposition of sentence was suspended and appellant was placed on probation. Among the terms and conditions of the probation was that he “commit no offense against the laws of this or any other state or of the United States.”

On September 1, 1967, a motion was filed in the 34th District Court at El Paso which alleged that appellant unlawfully broke and entered a house occupied and controlled by Robbin E. L. Washington with the intent to fraudulently take corporeal personal property belonging to Robbin E. L. Washington.

The only ground urged for reversal is that no direct evidence was introduced at the hearing that appellant had the intent to fraudulently take corporeal personal property belonging to Robbin E. L. Washington from the building.

In an appeal from an order revoking probation, the appellate court’s review is limited to the question of whether there is an abuse of the trial court’s discretion. Chavez v. State, Tex.Cr.App., 375 S.W.2d 729; McDonald v. State, Tex.Cr.App., 393 S.W.2d 914.

The facts adduced at the hearing are as follows:

Joe Villa, owner of the merchant patrol in El Paso went to the American Legion building on July 7, 1967, to check the building. He first checked the building at two o’clock in the morning. When he returned about 45 minutes later that morning, he noticed that a piece of plywood that was supposed to be in a square hole in the door was pushed down. It had been in place when he had checked at two o’clock.

Villa then looked through the hole where the plywood was supposed to be and saw appellant inside the building. Villa said, “Come on, open up,” and appellant replied, “Okay, in a minute,” and commenced to walk fast to the back of the building.

Villa radioed from his car, parked in front of the building, to police for assistance. He then went to the back of the building where he heard something being broken. He discovered it was a lock for the rear door which was locked from the inside. When appellant opened the door, Villa said, “Okay” and appellant slammed the door in his face.

By this time the police had arrived at the scene. Two policemen were stationed at the front' of the building. Villa and Sergeant Kennedy, the third policeman, smashed the back door down and Villa entered the building. When the appellant saw Villa, he went out the front door where he was arrested by the two officers in front.

The appellant was identified by the arresting officers as being the man in the building.

C. Ramirez, one of the arresting officers, testified that an inspection of the building immediately after the arrest revealed that a cash register had been pried open and the tray was out, and that there were pry marks on the cigarette machine where somebody had attempted to open it.

A search of appellant at the scene yielded some money — five one dollar bills and some quarters.

C. Rivas, another of the arresting officers, testified that the cash register had been “ransacked” and keys thrown around, and that two screwdrivers and two ice picks were found. He also testified the back door had been pried off, and there was a pair of pliers there.

Robbin E. L. Washington, commander of the American Legion Post where appellant was found, testified that he did not give appellant permission to break and enter the building, or to take anything therefrom.

Amy Jackson, an employee at the premises in question, testified that she closed up the building every night and that she closed up as usual on the night in question and locked the front door.

The evidence was sufficient to authorize the trial court to conclude that appellant had violated the terms of his probation. Morgan v. State, Tex.Cr.App., 399 S.W.2d 363; Bowie v. State, Tex.Cr.App., 401 S.W.2d 829; Mixon v. State, Tex.Cr.App., 401 S.W.2d 806; Schmiling v. State, Tex.Cr.App., 403 S.W.2d 132.

No abuse of discretion is shown by the trial court in revoking the order of probation.

The judgment is affirmed.


text:
    Marvin Odell SALES, Appellant, v. The STATE of Texas, Appellee.
    No. 41158.
    Court of Criminal Appeals of Texas.
    March 27, 1968.

      Wayne Bagley, Amarillo, for appellant.
    Gene Compton, Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is robbery with firearms; the punishment, 45 years.

Appellant’s first ground of error is that the court erred in admitting in evidence a picture of the young woman who was robbed, stationed at her checking stand where she was robbed. At the time of trial no reason was assigned for the obj ection. On appeal it is contended that since the witness testified that the picture was taken at a time other than during the robbery, the same should not have been admitted. We are cited no authority and know of none which would render the admission of the photograph error.

His next ground of error is that the “verdict is contrary to the evidence”. He bases his contention upon the fact that the State relied solely upon the testimony of the woman who was robbed. She was positive in her identification of appellant, who at gun point robbed her of more than $200.00, and the jury chose to believe her and disbelieve appellant’s testimony as to alibi and his testimony that another prisoner in the Potter County Jail, who was available as a witness but was not called, had told him while they were cell mates that he had committed the robbery in question.

Reliance is had upon one sentence found in the opinion of this Court in Nix v. State, Tex.Cr.App., 74 S.W. 764, which we quote: “And again, the reasonable doubt, as insisted on by appellant, could arise from a want of evidence as well as from the evidence.” We fail to see the applicability of such quotation to the case at bar. The case itself would not support appellant’s contention.

We shall briefly discuss the other cases cited in appellant’s brief. We are at a loss to see how Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, applies to the case at bar. Mortensen v. United States, 322 U.S. 369, 64 S.Ct. 1037, 88 L.Ed. 1331, also cited by appellant is an interesting Mann Act case, but we fail to see its relevance to this case.

Lambert v. United States, 261 F.2d 799, is a Dyer Act case in which the Fifth Circuit Court of Appeals held the evidence sufficient to support the conviction and affirmed the conviction.

Riggs v. United States, 5 Cir., 280 F.2d 949, is a moonshine conspiracy case in which the appellant’s connection with the illicit whiskey was not shown, but we fail to see how it could be said to be applicable to the case at bar, where the woman who was robbed at pistol point first identified a police picture of appellant, later identified appellant in a lineup, and, even though vigorously cross examined, maintained throughout that it was appellant who robbed her, caused her to undress and then hit her over the head prior to leaving the premises which were under her control.

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


author: PEDEN, Justice.

text:
    Norris M. DONLEY et ux., Appellants, v. Walter G. HUNTER, Sr., Appellee.
    No. 15215.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    March 14, 1968.

      Joe J. Newman, Houston, J. T. Maroney, Jr., Lufkin, for appellants.
    Franklin R. Navarro, A. W. Clem, Houston, for appellee.
   PEDEN, Justice.

This is a child custody suit. Relators, Mr. and Mrs. Norris M. Donley, who are the maternal grandparents of Damita Jo Hunter, filed a habeas corpus proceeding seeking custody of Damita Jo from the Respondent, Walter G. Hunter, Sr., her paternal grandfather. Neither of Damita Jo’s parents is living.

After a hearing before the court without a jury, the trial court found that both the petitioners and the respondent are fit and proper persons to have the care, custody and control of Damita Jo but that it is for her best interest that she be placed with respondent, Walter G. Hunter, Sr. Relators have perfected their appeal from the order awarding custody to Mr. Hunter.

We affirm the judgment of the trial court.

Appellants’ points of error are:

FIRST POINT: The Court erred in giving the care, custody and control of said minor child to the Appellee for the reason that it was affirmatively found that the Appellants were fit and proper persons to have the care, custody and control of said minor child, DAMITA JO HUNTER.
SECOND POINT: The Court erred in giving the care, custody and control of said minor child to the Appellee for the reason that it was affirmatively shown that said minor child, DAMITA JO HUNTER, had been placed with the Appellants for approximately three years by the deceased father, WALTER HUNTER, JR., prior to his death and subsequent to the death of his wife, the mother of said child.
THIRD POINT: The Court erred in giving the care, custody and control of said minor child to the Appellee for the reason that it was affirmatively shown that the last surviving parent of said minor child, DAMITA JO HUNTER, had made his selection of the grandparents who were more fit and able to take care of said minor child by his acts and conduct in leaving said child with said maternal grandparents, a short time prior to his death.
FOURTH POINT: The Trial Court abused his discretion in placing the custody of said minor child, DAMITA JO HUNTER, with the Appellee.

In determining the question of whether the trial court abused its discretion in awarding custody to appellee we consider the whole record. Herrera v. Herrera, 409 S.W.2d 395 (Tex.Sup.1966). This we have done. The evidence shows that the child’s parents were living with appellants in Luf-kin when she was born on December 30, 1960, and that they continued to live there until they moved to New Jersey in the spring of 1963. After the death of her mother in New Jersey in September of 1964, Damita Jo was brought to Lufkin by her father when her mother was buried.

There is conflicting testimony as to whether Damita Jo then stayed with appellants until December of 1965 or whether she stayed with appellee in Houston from September, 1964 until late November of 1964 and was with appellants only from late November, 1964 until late June, 1965.

There is testimony that in July, 1965, her father took Damita Jo back to New Jersey, where he died on July 17, 1966. Damita Jo was injured in the collision which took her father’s life, and she was hospitalized until September of 1966, when appellants brought her back to Lufkin. She remained there with them until December 27, 1966; from then until the date of the hearing in the trial court, June 29, 1967, she was in the home of the appellee in Houston.

Appellants surrendered Damita Jo to the appellee on December 27, 1966, pursuant to a temporary order from a Superior Court in New Jersey. We mention this order only to show the basis on which appellants brought Damita Jo to appellee.

In our case the trial judge was not asked to make a finding as to whether Damita Jo’s father had selected appellants to care for her a short time before his death, and the trial judge made no finding on this point.

Nor was a finding requested or made in support of appellants’ second point: that Damita Jo was placed with appellants for approximately three years between the death of his wife and his own demise.

There is evidence in the record to indicate that during what was actually a twenty-two month interval between the deaths of Dami-ta Jo’s parents she spent seven months with appellants, over two months with appellee and the rest with her father.

Appellee and his wife have adopted another child, also a girl. The evidence amply supports the trial court’s finding that the parties on both sides are fit and proper persons to have custody of Damita Jo.

Appellants cite Herrera v. Herrera, supra, and Mumma v. Aguirre, 364 S.W.2d 220 (Tex.Sup.1963), to support their contention that the trial court erred in granting custody to appellee. But in those cases the Supreme Court held that there was no abuse of discretion in preserving family ties which had been established in the environment in which the child had been living for the last several years.

We think the family ties established by Damita Jo in the homes of the parties are comparable. There is competent evidence that in the last two years she spent less than four months with appellants, and during the last six months before the hearing she was with the appellee.

Although the facts are different, we think the quotation from Mumma v. Aguirre, supra, recently made in the opinion in Herrera v. Herrera, supra, is particularly appropriate here:

“It is in situations with such conflicting considerations that the trial judge must be accorded the right to exercise a large measure of discretion in denying a change of custody of a child. He has an opportunity to observe and evaluate the personalities of the contending claimants, to weigh the credibility of their testimony, to assess the physical, mental, moral and emotional needs of the child, and to adjudge from personal observation which of the claimants can best meet the needs of the child. His judgment should be'reversed only when it appears from the record as a whole that he has abused the discretion entrusted to him.”

The judgment of the Trial Court is affirmed.


author: CLAYTON, Justice.

text:
    Carmen V. SYLVA, Appellant, v. Lorraine Leleihua SYLVA, Appellee.
    No. 5934.
    Court of Civil Appeals of Texas. El Paso.
    March 13, 1968.
    Rehearing Denied April 3, 1968.
    Jack Brewster, El Paso, for appellant.
    Edwards, Belk, Hunter & Kerr and Berry H. Edwards, El Paso, for appellee.
   OPINION

CLAYTON, Justice.

This is a suit for the proceeds of an insurance policy brought by Carmen V. Sylva, Plaintiff (appellant here) against Lorraine Leleihua Sylva, Defendant (appellee here) and the Massachusetts Mutual Life Insurance Company. Carmen V. Sylva will hereafter be referred to as “Carmen”, Lorraine Leleihua Sylva as “Lorraine” and Massachusetts Mutual Life Insurance Company as “the Company”. At the time the policy was issued by the Company in March, 1964, Lorraine was married to the insured, Norman Anthony Sylva, hereafter referred to as “Sylva” and was made the beneficiary in the $15,000.00 policy. However, in September, 1964, Sylva separated from Lorraine and in December, 1964 filed suit for divorce from her. In March, 1965 he was granted the divorce from Lorraine. Thereafter, on March 31, 1965 Sylva married Carmen in New Mexico and they lived together as husband and wife until his death in February, 1966.

On October 19, 1965 Sylva wrote in his own handwriting an instrument as follows:

“19 Oct 65
“This is to certify that I Norman A. Sylva want my wife Carmen Sylva to receive my worldly goods if anything should happen to me — by this I mean my death. I am talking about by Life Insurance although its in my first wife’s name Lorraine — -which I don’t want to receive any property or goods from me. I made a will last year September which I claim to be null and void. I am in my sane mind and am writing this of/ my own free will.
/s/ Norman A. Sylva
“Witness -
“Witness-”

Sylva then delivered this instrument and the insurance policy to Carmen, but the instrument was not transmitted to the Company and the Company had no notice of it until a copy of it was included in a letter written in March, 1966 by the attorney for Carmen to the Company, which letter also made claim for the proceeds of the policy. The Company did not forward the proceeds, but after suit was filed, the Company filed its answer and interpleader in which it acknowledged liability under the policy but stated it had been subjected to conflicting claims which it could not resolve, and as an innocent stakeholder with no interest in the payment or distribution of the policy’s proceeds, deposited the same into the registry of the court and was dismissed from the lawsuit.

Sylva also executed a will in January, 1966, leaving his property to his wife, Carmen, if she survived him, and otherwise to his children.

The parties litigant herein entered into stipulations which embodied most of the above facts. Lorraine then filed her Motion for Summary Judgment stating that the stipulations show that there is no genuine issue as to any material fact and that she is entitled to the proceeds of the policy as a matter of law. Carmen filed her affidavit in opposition to the motion for summary judgment and her attorney also filed an affidavit setting out his connection with the instrument of October 19, 1965, which purportedly changed beneficiaries in the insurance policy. Lorraine’s lawyer then filed her Exceptions and Motion to Strike “all portions of such [Carmen’s] affidavit wherein the plaintiff Carmen V. Sylva, claims that Norman Anthony Sylva said and did various things in her presence, because all of such testimony is incompetent for two reasons: 1) All such testimony is hearsay. 2) All such testimony is in violation of the Texas Deadman’s Statute, Article 3716.” These exceptions and motion to strike apparently were not passed on by the court and, in view of our disposition of this cause, need not be discussed.

The trial court then granted defendant’s motion for summary judgment holding that the pleadings and stipulations showed an absence of genuine issue of any material fact and awarding her the proceeds of the policy deposited into court. Carmen then filed this appeal.

Appellant presents five points of error. The first four points are grouped together by appellant and are: The trial court erred in granting defendant’s motion for summary judgment because:

1. There were genuine issues as to material facts and defendant failed to demonstrate she was entitled to judgment as a matter of law.

2. There was a genuine issue as to the intention of Sylva when he executed the instrument of October 19, 1965 and delivered possession of it and the insurance policy to Carmen, this being as to a material fact.

3. There was a genuine issue as to whether Sylva and Carmen were misled by an agent of the insurance company, this being a material fact. (This is the matter referred to in the “Exceptions and Motion to Strike” which will not be discussed here).

4. Such facts as are not disputed conclusively show defendant not entitled to judgment as a matter of law.

The policy of insurance involved contains the following provision:

“CHANGE OF BENEFICIARY During the lifetime of the insured * * * the owner may change the beneficiary from time to time. Any request for change of beneficiary * * * must be written and satisfactory to the Company. No change of beneficiary will take effect until such request is received at the Home Office. When such request is received, the change will relate back to and take effect as of the date the request was signed, whether or not the insured is living when the request for change is received; * * (Emphasis supplied.)

The 1945 Supreme Court case of Tips v. Security Life & Accident Co., 144 Tex. 461, 191 S.W.2d 470, 471, 472, under circumstances similar to the case at hand, has the following to say:

“The affirmance of the trial court’s judgment by the Court of Civil Appeals rests upon its conclusion that the insured failed to do all that he reasonably could have done to perfect a change of beneficiary, in that, although he procured from the insurers forms for making the change and duly executed them, he did not deliver the instruments to the insurance companies. The policies provide in substance that the insured may change the beneficiary at any time and that the notice of change must be in writing and filed with the company. * * * ” (Discussing cases).
“Each of the cases above cited approves the general rule that when the terms of the policy of insurance, or the constitution or bylaws of the fraternal insurance association, define the method by which the insured may change the beneficiary, a change is not accomplished unless the insured has substantially complied with the method designated, or to use the language of Adams v. Adams, Tex.Civ.App., 78 S.W.2d 664, unless he has done all that he could reasonably have done to perfect a change.
“The method designated in the policies in the instant case is by filing with the company the written notice or request. There wa<= no compliance, not even an attempted compliance, with that prescribed method. The insured executed the notices or requests but he did not file them with the company. He did not mail them. He did not even direct anyone to mail them. * * *
“After careful consideration of the undisputed facts and the authorities, we are thoroughly convinced that the Court of Civil Appeals correctly decided this question.”

In the case before us, neither the instrument of October 19, 1965 nor any other purported change of beneficiary has been forwarded to the Company. We hold that in the case before us Sylva had not done all he reasonably could have done to change the beneficiary. The 1953 case of Creighton v. Barnes, 152 Tex. 309, 257 S.W.2d 101, 103, passed on by the Texas Supreme Court, states:

“We recently decided the case of Kotch v. Kotch, 151 Tex. 471, 251 S.W.2d 520, 523 (1952), where we discussed the law applicable to a change of beneficiary and what was necessary to be done by the insured to effect a change. In that case we held * * * Wright v. Wright, Tex.Civ.App., 44 S.W.2d 1019 and, more importantly, Garabrant v. Burns, 130 Tex. 518, 111 S.W.2d 1100, both of which are apparently approved in the Tips cases, Tips v. Security Life & Accident Co. (and Tips v. Franklin Life Insurance Co.), 144 Tex. 461, 191 S.W.2d 470 undoubtedly do hold in effect that the restrictions are also for the benefit of the last beneficiary named as such in the certificate or policy itself as against a party claiming that such designation was changed in his favor, while from this premise they proceed to the rule that, as between such opposing claimants, and even though the insurer takes no position on the restrictions, the purported change will be given effect only if the insured has “substantially complied” with them, or “done all he reasonably could have done” in that behalf.’ That this is now the well-settled rule in Texas is established by the Kotch case, as well as the following cases: Kelley v. McDonald, Tex.Civ.App., 83 S.W.2d 414, writ dismissed; Johnson v. Johnson, 5 Cir., 139 F.2d 930, 151 A.L.R. 268; Beck v. Beck, Tex.Civ.App., 90 S.W.2d 284, no writ history; Great Southern Life Ins. Co. v. Hukill, Tex.Civ.App., 151 S.W.2d 603(1), writ dismissed, correct judgment.”

Although the question of waiver of the change of beneficiary requirements on the part of the insurer does not specifically arise in the instant case, we deem it well to quote Creighton v. Barnes further, as follows:

“Respondent contends that since the Insurance Company did not refuse to recognize her right to receive the proceeds of the policies and paid these proceeds into the registry of the court to be paid to whomsoever the court determined is entitled to the same, the Company has waived the right to require compliance with the policy provisions as to making a change. Garabrant v. Burns and the Kotch cases, supra, discuss the cases relied upon by the respondent to sustain her position, and hold they are not applicable to a situation such as we have before us. The Court of Civil Appeals in Kelley v. McDonald, supra, 83 S.W.2d 416, has very effectively answered respondent’s contention by saying:
“ 'By depositing the money due on said policy into the registry of the court the insurance company did nothing more than any well-regulated corporation would have done under the same circumstances. It waived none of its legal rights, because, under the terms of the policy, it owed the money due on same to some person, and it was nothing but good business on its part to permit the court to designate the proper person to receive it.’ ”

Carmen alleges in her first amended original petition, in the alternative, that the instrument of October 19, 1965, and the delivery of the policy to her constituted an absolute assignment of the policy by Sylva to her. In the policy itself a provision for assignability of the policy is contained in the following language:

“ASSIGNABILITY * * * The interest of the insured, any -beneficiary and any succeeding owner shall be subject to any assignment received by the Company. No assignment of this policy shall bind the Company unless it is in writing and until the original or a true copy thereof is received at the Home Office. The Company does not assume responsibility for the validity of any assignment.”

The lawyer for Carmen seems to have treated the October 19, 1965 instrument as a change of beneficiary rather than an assignment. In his letter to the Company of March 11, 1966 he states: “A change of beneficiary was executed by Mr. Sylva * * And in his letter of March 28, 1966 in which the October 19, 1965 instrument is copied, the attorney refers to it as “The change of beneficiary executed by Mr. Sylva * * * is in form and substance as follows * * Indeed, the language of the instrument involved lends itself more to an attempted change of beneficiary than an assignment of the policy. We find it necessary to overrule both the original and alternate theories of Carmen.

The fifth point of error is to the effect that the trial court erred in not granting to counsel the right of oral argument on the motion for summary judgment. We do not find any exception or objection in regard to this alleged refusal of the court, nor are we aware of the circumstances surrounding such alleged refusal, and are not in a position to determine the merits of this point of error, and therefore overrule the same.

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


text:
    Jane TILLER, Appellant, v. Charles VILLASENOR, Appellee.
    No. 15265.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    March 21, 1968.
    Briscoe, Dally & Shaffer, Joe C. Shaffer, Houston, for appellant.
    Robert P. Jungman, Houston, for appel-lee; Jungman & Brannon, Houston, of counsel.
   PEDEN, Justice.

This is an appeal from an order awarding custody of three minor sons of the appellant to the appellee, who was the brother of their deceased father. Appellant had filed a ha-beas corpus proceeding, and, after a non-jury hearing, the trial court refused to grant the writ.

At the time of the hearing, which was held soon after the death of their father, the ages of the boys in question were 16, 14 and 12 years. They had lived with their father since their custody had been awarded to him when the boys’ parents were divorced in 1964, but had stayed with the appellant, their mother, most of the summers and weekends since that time. Appellant has remarried.

Appellee is married and has two children. He and his family live in Austin. Appellant’s sons have visited in his home on several occasions.

At the hearing the trial judge and the attorneys for the parties questioned each of the boys outside of the hearing of the parties. Each boy stated that he loved his mother and that he thought he would be all right with her, but each one expressed a definite preference for living with the ap-pellee. The younger of the boys had left his mother’s house and had called an aunt to come get him shortly before the date set for the hearing in the trial court.

Mrs. Tiller’s appeal complains that it was error to refuse to grant her custody of the children because a surviving parent is presumptively entitled to succeed to custody of the minor children unless such surviving parent is shown to be an unfit or improper person to be awarded custody. Further, that there is no indication that the court found appellant to be an unfit or improper person to receive custody, nor is there evidence in the record upon which such a finding could reasonably be based.

We overrule appellant’s point of error. In Texas the court’s primary concern is for the best interest of the children. Legate v. Legate, 87 Tex. 248, 28 S.W. 281 (1894).

The trial court may award custody of the children to someone other than the surviving parent even though such parent is not unfit. This exact point was decided by the Texas Supreme Court in Herrera v. Herrera, Tex., 409 S.W.2d 395 (1966). The rule is stated in Taylor v. Taylor, 42 S.W.2d 455 (Tex.Civ.App., 1931, no writ hist.):

“The presumption is that the best interest of the children will be subserved by awarding them to the natural parent, but this is a rebuttable presumption, and it is not necessary that the respondents prove that the natural parent is disqualified by immorality or misfortune.”

When this rule was earlier announced in Dunn v. Jackson, 231 S.W. 351 (Tex.Com.App., 1921, opinion adopted), its application was to a family in which the father had voluntarily surrendered custody of an infant two weeks old to her maternal grandmother ; but the rule is also applied where there has been neither a voluntary relinquishment nor an abandonment of custody. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787 (1955); Ham v. Cavette, 357 S.W.2d 438 (Tex.Civ.App., 1962, writ ref., n. r. e.); Taylor v. Taylor, supra.

We have considered the whole record and have concluded that the trial judge did not abuse his discretion. One notable factor in the case is the fact that all three of the boys have stated their desire to live with appellee; this is one of the matters on which the trial judge may base his decision when the children are of sufficiently mature age. Dunn v. Jackson, supra, and Taylor v. Taylor, supra.

The judgment of the Trial Court is affirmed.


author: PER CURIAM.

text:
    Manuel HERNANDEZ et ux., Relators, v. William Ray HARDY et al., Respondents.
    No. 111.
    Court of Civil Appeals of Texas. Houston (14th Hist.).
    March 6, 1968.

      Richard E. Kammerman, Joe H. Rojo, Houston, for relators.
    Joe Resweber, County Atty., A. B. Crowther, Asst. County Atty., Carol S. Vance, Dist. Atty., Nicholas Barrera, Rod E. Gorman, Asst. Dist. Attys., Houston, for respondents.
   PER CURIAM.

This is an original application for writ of mandamus filed by Manuel Hernandez and Mary Hernandez as parents and next friends of Johnny Hernandez. The respondents are William Ray Hardy, District Clerk of Harris County; Honorable Robert Lowry, Judge of the Juvenile Court of Harris County; and Thomas Brenan, Official Court Reporter of said Juvenile Court.

Johnny Hernandez was, on January 10, 1968, adjudged to be a delinquent child by judgment of the Juvenile Court of Harris County, Texas, and has been confined to State School for Boys at Gatesville, Texas, pursuant to such judgment of delinquency. His parents, as next friends of the said minor, have given notice of appeal to this Court from the judgment of the Juvenile Court. In connection with such appeal, they filed, in the court below, an affidavit of inability to pay costs, such affidavit being in substantial compliance with Rule 355, Texas Rules of Civil Procedure. Their affidavit was contested by the District Clerk and the Court Reporter. On hearing, those contests of the Pauper’s Oath were sustained by the trial court.

In this petition for writ of mandamus, the next friends of the delinquent minor seek an order directing the District Clerk and the Court Reporter, to furnish, without cost, a transcript and statement of facts to be filed in this Court in connection with the proposed appeal.

We are of the opinion that Lee v. McKay, 414 S.W.2d 956, writ of error dismissed, and In re Brown, Tex.Civ.App., 201 S.W.2d 844, error ref., n.r.e., are controlling in this matter and that the parents of the delinquent minor are entitled, as a matter of law, to perfect their appeal and to be furnished with a transcript and statement of facts in connection therewith without paying the costs thereof.

That portion of the application for writ of mandamus wherein relief is sought against the District Clerk and Court Reporter is hereby granted.

William Ray Hardy, District Clerk of Harris County, is hereby ordered to prepare a transcript, as requested, on behalf of the minor, Johnny Hernandez, without charging therefor. Thomas Brenan, Official Court Reporter of the Juvenile Court of Harris County, Texas, is hereby ordered to prepare a statement of facts, as requested on behalf of the said minor, Johnny Hernandez, without charging therefor.

There does not appear to be any necessity for any mandatory order as against the Honorable Robert Lowry, Judge of the Juvenile Court of Harris County. The petition for writ of mandamus, insofar as relief against the said Honorable Robert Lowry is concerned, is therefore denied.

We have no doubt that the District Clerk and the Court Reporter will comply with our ruling without the necessity of the issuance of any writ of mandamus. Such writ will, therefore, not issue unless they refuse to comply with our orders.


author: McDONALD, Chief Justice.

text:
    Irene DAVIS et vir, Appellants, v. TEXAS LIFE INSURANCE COMPANY, Appellee.
    No. 4689.
    Court of Civil Appeals of Texas. Waco.
    March 21, 1968.
    Rehearing Denied April 11, 1968.
    Dunnam, Dunnam & Dunnam, Waco, for appellants.
    Alva D. Mabray, Waco, for appellee.
   OPINION

McDONALD, Chief Justice.

This suit involves the construction of a policy of life insurance, issued by defendant on plaintiffs’ son, Randy Davis, deceased. Defendants paid the “Initial Face Amount” of the policy ($3,000.), but denied liability as to the “Ultimate Face Amount” ($9,000.). Plaintiffs sued defendant for the “Ultimate Face Amount.” After trial before the court, without a jury, the trial court rendered judgment that plaintiffs take nothing.

Plaintiffs appeal on 7 points, contending:

1) The trial court erred in holding the policy unambiguous.
2) The trial court erred in not rendering judgment for the Ultimate Face Amount of the policy (an additional $6,000 plus attorney’s fees).

The trial court filed Findings and Conclusions summarized as follows:

FINDINGS OF FACT
1) Randy Davis, the insured, died February 3, 1967.
2) The insured’s 21st birthday was on October 11, 1966.
3) The anniversary date of the policy on April 10, 1967, is the anniversary date of the policy nearest the 21st birthday of the insured.
3)A reasonable attorney’s fee would be $1500. had plaintiffs been entitled to the Ultimate Face Amount of the policy.
CONCLUSIONS OF LAW
1) The policy does not contain one or more ambiguities on its face, but its meaning is unambiguous when all parts thereof are considered.
2) If defendant were liable for the Ultimate Face Amount of the policy, such would be $6000. plus $1500. attorney’s fees.

The principal question presented: Is the policy ambiguous on its face ?

The policy reads:
“Texas Life Insurance Company, Waco, Texas, Agrees to pay * * *
“A. The Initial Face Amount if the death of the Insured occurs prior to the anniversary of this policy nearest the 21st birthday of the Insured;
“B. The Ultimate Face Amount if the death of the Insured occurs on or after the anniversary of this policy nearest the 21st birthday of the Insured;
* * * * * *
* * * * * *
“Juvenile Endowment at Age 60 with Increased Death Benefit at age 21 with Return Premiums”
******

The insured died on February 3, 1967; the insured was 21 on October 11, 1966; the anniversary date of the policy was April 10. April 10, 1967 is 3 days nearer deceased’s 21st birthday than April 10, 1966.

Thus, under the provisions of A and B, supra, only the Initial Face Amount of the policy was due to be paid.

But the language in the box states: “Face Amount to age 21 (Initial Face Amount) $3000.; Face Amount Thereafter (Ultimate Face Amount) $9000.”; and the policy thereafter states: “Increased Death Benefit at Age 21.”

It is true provisions A and B are inconsistent with, and in conflict with both the provisions in the box, (and the provisions following), when considered alone.

The general rules of construction of insurance policies are the same as govern any other contract. The policy must be considered as a whole, and effect given to each part where reasonably possible. Where there is an ambiguity or uncertainty as to the meaning, that construction must be given which is favorable to the insured. National Security Life & Cas. Co. v. Davis, 152 Tex. 316, 257 S.W.2d 943, 38 A.L.R.2d 764; Trahan v. Southland Life Ins. Co., 155 Tex. 548, 289 S.W.2d 753. And where there are in the policy both general and special provisions relating to the same thing, the special provisions control the general where the general provisions follow the specific provisions. Such is the situation here. 17 Am.Jur.2d pp. 677, 678. And all provisions of the contract will be harmonized if it is reasonably possible so as to avoid conflict. Chapa v. Reid, Tex.Civ.App. (Er. Ref.) 248 S.W.2d 299.

Applying the foregoing rules of construction, we think the language in the box (and that following), a generalization of the specific language used in A and B; and that a reasonable construction with all provisions harmonized renders the policy unambiguous.

The judgment is correct. Plaintiffs’ points and contentions are overruled.

Affirmed.


author: BATEMAN, Justice.

text:
    GULF OIL CORPORATION, Appellant, v. Lee P. SMITHEY, Appellee.
    No. 17068.
    Court of Civil Appeals of Texas. Dallas.
    March 1, 1968.
    Rehearing Denied April 5, 1968.

      William F. Erwin, Jr., Houston, for appellant.
    Clifford S. Dillard, Dallas, for appellee.
   BATEMAN, Justice.

Gulf Oil Corporation appeals from the overruling of its plea of privilege in a suit brought against it by appellee Lee P. Smith-ey for damages for alleged trespass and conversion of his personal property. The parties will be designated as they were in the trial court.

Vernon’s Ann.Civ.St., Art. 1995, in its first clause provides that a defendant is entitled to be sued in the county of his domicile, subject to the exceptions set forth in the several subdivisions of Art. 1995. Appellee relies on two such exceptions, Nos. 9 and 23. When the defendant files a proper plea of privilege, the law places the burden on the plaintiff to allege and prove that the case falls within one or more of those exceptions. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935).

The facts appear to be undisputed. Plaintiff was a tenant of defendant, having rented a service station in Dallas, Texas, from it under a written lease for a term of one year ending April 29, 1967. In a separate written agreement defendant agreed to provide a cost-free inventory of gasoline to plaintiff, and plaintiff agreed to pay therefor after he sold it.

Defendant loaned the sum of $1,240.87 to plaintiff with which he purchased certain equipment and merchandise, and covering which he gave defendant a promissory note and a Security Agreement giving to defendant a security interest in the equipment listed on a schedule attached thereto.

Plaintiff was unable to settle for gasoline he had sold and, after making demand for such settlement, defendant locked the gasoline pumps on April 18,1967, to prevent further sales. Plaintiff was also in default, both in the payment of rent due and in the payments due on his promissory note. He had been delinquent in his rental payments on two previous occasions; defendant had locked the gasoline pumps and had unlocked them when plaintiff paid the past due rents. On April 24, 1967, defendant’s agents re-entered the premises by “picking” the lock on the building, and removed plaintiff’s service station equipment to defendant’s warehouse. All of this was done in Dallas County. Defendant denies plaintiff’s claim that these acts constituted trespass and conversion and says it was only re-entering its own property, plaintiff’s right of occupancy having terminated by his failure to pay the rent due and his abandonment of the premises. Defendant contends that its right to do what it did is secured to it by the following provisions of the lease:

“4 (f). Lessee recognizes that the premises have an intrinsic value as a gasoline service station location and agrees to conduct his business thereon in such manner that its value as such will not depreciate, and in order to accomplish this purpose he will furnish such services and accommodations to retail gasoline customers as are customarily provided by gasoline service stations, including, but not limited to (1) keeping the premises open for operation for such hours and days as are necessary fully to serve and develop the business available, but in no event less than those business hours and days generally observed by competitive service stations in his area * * * (4) providing sufficient qualified and neatly dressed attendants to render first class service to customers, * * *.
“5. The obligations and covenants of Lessee set forth in this lease shall be deemed conditions. Upon any default thereunder, and if such default is not cured within ten (10) days after written notice from Lessor to Lessee specifying such default, or if after notice of any default and cure thereof, Lessee again defaults in the same or similar particulars, * * * or should Lessee cease to operate said premises as an automotive service station, or abandon said premises (abandonment shall be conclusively presumed in any event if the premises are not open and used for the normal conduct of business during any period of sixty (60) consecutive hours), Lessor may without notice immediately terminate this lease and all Lessee’s rights hereunder and re-enter and, in any lawful manner, resume possession of said premises, Lessee hereby waiving any claim against Lessor and the benefit of all statutory rights inconsistent herewith. In event of such re-entry, Lessor may buy for its own account, or sell or store for the account of Lessee, any personal property and stock of Lessee then on said premises and Lessee hereby appoints Lessor his agent for such purpose, and Lessor shall not he liable to Lessee in damages or otherwise for any act or omission of Lessor in regard thereto. * *

The Security Agreement provided that upon default in payment of any of the installments due on the note secured thereby the defendant may declare the entire note immediately due and payable without notice and shall thereupon have the right to take possession of the collateral, and for that purpose may enter upon any premises upon which the collateral or any part thereof may be situated and remove the same therefrom.

Subdivision 9 of Art. 1995, V.A.C.S., provides that “a suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense or trespass was committed by the defendant, or by his agent or representative, or in the county where the defendant has his domicile.”

Subdivision 23 of Art. 1995, V.A.C.S., provides that “suits against a private corporation, * * * may be brought in the county in which its principal office is situated; or in the county in which the cause of action or part thereof arose; or in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation, * * * has an agency or representative in such county; * *

Defendant had an “agency or representative” in Dallas County, but contends that neither subdivision is applicable because the evidence did not show the commission by it of any crime, offense or trespass in Dallas County, or that plaintiff has a cause of action against it. It argues that it had the right under the terms of the lease to terminate it and all of plaintiff’s rights thereunder, and to re-enter and resume possession of the premises, not only because of the default in the payment of rentals, but also because during the six days between the time of locking the pumps and the time of defendant’s repossession of the building the plaintiff did not keep the premises open for the “normal conduct of business” for sixty consecutive hours. For the purpose of this discussion we may assume that the lease and Security Agreement accorded to defendant these rights. But the question then arises as to the propriety of the method by which defendant undertook to enforce such rights. The lease itself provides that defendant shall have the right to resume possession of the premises “in any lawful manner.”

The provisions in a lease giving the lessor the right to re-enter upon default of the tenant, and those of a security agreement giving a lienholder the right to repossess in event of default, without notice to, or the consent of, the tenant or debtor, and even over his protest, are recognized as valid, provided such rights are exercised peaceably and zvithout force or violence. Kuhn v. Palo Duro Corporation, 151 S.W.2d 894, 897 (Tex.Civ.App., Texarkana 1941, reversed on other grounds in Jones v. Kuhn, 139 Tex. 125, 161 S.W.2d 778); Loftus v. Maxey, 73 Tex. 242, 11 S.W. 272 (1889); Singer Mfg. Co. v. Rios, 96 Tex. 174, 71 S.W. 275 (1903); Gillett v. Moody, 54 S.W. 35 (Tex. Civ.App., San Antonio 1899, no writ); Texas Auto Co. v. Clark, 12 S.W.2d 655, 658 (Tex.Civ.App., Waco 1928, no writ); Godwin v. Stanley, 331 S.W.2d 341 (Tex.Civ.App., Amarillo 1959, writ ref’d n. r. e.); Watson v. Hernandez, 374 S.W.2d 326 (Tex.Civ.App., Amarillo 1963, writ dism’d). See also 35 Tex.Jur.2d, Landlord and Tenant, § 81, p. 571. Here, the plaintiff was not present; it was not shown that he even knew the re-entry or repossession were to be attempted, or that he had any knowledge thereof until defendant’s agents had already forced their way into the building by picking the lock. Having locked the building, he must be considered as being in possession thereof and of the equipment situated therein. He had not been informed that defendant had declared the lease terminated, if in fact it had done so, or that his right of occupancy was being challenged. We know of no authority, and have been cited to none, directly in point on the facts; but on the rationale of the cases cited above we hold that the entry into the building by picking the lock was not peaceable but was by force and violence, and that the taking of the personal property under those circumstances was by force and violence, which is not permitted by the law. Accordingly, therefore, we also hold that plaintiff carried his burden of showing the applicability of both subdivisions 9 and 23 of Art. 1995, V.A.C.S., and that the defendant’s plea of privilege was correctly overruled.

Affirmed.


author: SELLERS, Justice.

text:
    CLANAHAN CONSTRUCTION COMPANY et al., Appellants, v. Mark Allen MILLS, Appellee.
    No. 325.
    Court of Civil Appeals of Texas. Tyler.
    March 14, 1968.
    Rehearing Denied April 11, 1968.

      Ramey, Brelsford, Flock, Devereux & Hutchins, Donald Carroll and Michael A. Hatched, Tyler, for appellants.
    Norman, Rounsaville, Hassell & Spiers, James H. Rounsaville, Jacksonville, for appellee.
   SELLERS, Justice.

Mark Allen Mills brought this suit against Charles Edward Willis and his employer, Clanahan Construction Company, to recover damages for personal injuries received by him when a truck of Clanahan Construction Company, driven by Charles Edward Willis, collided with his car at a controlled intersection on Jackson Street in the town of Jacksonville, Texas, on March 20, 1964. The case was tried to a jury and resulted in a verdict convicting the defendant Willis of four separate acts of negligence which were found to be the proximate cause of the collision, and awarding the plaintiff damages in the sum of $60,000. From this judgment, the defendants have duly prosecuted this appeal to this Court.

This collision occurred at the intersection of Jackson Street with Rusk Street. The intersection is controlled by red lights. U. S. Highway No. 69 follows Jackson Street through the city of Jacksonville where the collision took place. Jackson Street is a 6-lane street — three on either side of the center line. The lane next to the curb on both sides of the street permits parking. Jackson Street runs in a general direction of North and South, and Rusk Street (a 4-lane street) runs in a general direction of East and West. U. S. Highway 79 follows Rusk Street through the intersection where the collision occurred.

Appellants in their Brief assert that there is no evidence to support the jury’s finding of negligence and proximate cause, and if any, it is not sufficient to support the judgment of the Court. We over-, rule this contention, and after review of the evidence, find same sufficient to sustain each of the four acts of negligence and proximate cause found by the jury; however, we will only discuss one of the acts of negligence found by the jury since it is sufficient to support the judgment of the court. The jury found that the defendant Willis failed to apply the hand brake, or emergency brake, as it is sometimes called, which was the proximate cause of the collision and resulting damage to the appellee Mills. As you go North on Jackson Street from the Rusk Street intersection, you come first to Commerce Street. Proceeding on North, you come next to Wilson Street, and North of Wilson Street, you come to several railroad tracks crossing Jackson Street; proceeding North you come to Woodrow Street and the next street to the North is Cherokee Street.

The defendant Willis entered Jackson Street somewhere near Cherokee Street, driving a two-ton Chevrolet truck carrying a load of some 13,000 pounds. As he approached the railroad tracks, his speed was some 25 miles per hour, and he discovered his hydraulic brakes would not work. He was asked why he did not turn his truck down the railroad tracks and his reply was: “I don’t know. Why turn it down the railroad track if there is nothing in front of me?” He testified that he cut off the engine because he was scared of fire if anything happened. Although his truck was equipped with an emergency brake which was working, he never at any time applied this brake. When asked why, he said he was scared and was blowing his horn. When he arrived at the first street North of Rusk Street, he could see the red light in front of him at Rusk Street. He could see each lane of traffic on his side of the street was blocked by cars waiting for the red light to turn green. Willis then pulled his truck across the center line over into the northbound traffic lane and proceeded on into the red light on Rusk Street, striking Mills’ car in the side and carrying it some 200 feet down Jackson Street where the Mills car turned over and Willis’ truck landed on top of the Mills car. Mills’ car was crossing on a green light at about 15 miles per hour at the time it was struck, and Mills never did see or hear the horn of the truck before it struck him. It will be noticed that Willis at no time after he discovered his hydraulic brakes were not working did he apply his emergency brake. Two witnesses testified about the emergency brake being able to stop the loaded truck, and without setting out their evidence, they both agreed that the application of the emergency brake would have slowed the truck down and if it had been applied and slowed the truck down and prevented the arrival at the scene of the collision two seconds, the collision would not have occurred. Whatever effect the application of the emergency brake might have had on the truck, the only excuse Willis gave for not applying the same was the fact that he was scared or was blowing his horn.

It is the law in Texas that a failure to apply the brakes under these circumstances is negligence and supports the jury’s finding of proximate cause of the collision. 7 T.J.2d 435, Section 101; Presswood v. Jones, Tex.Civ.App., 381 S.W.2d 485; Shelby Biscuit Company v. Robbins, Tex.Civ.App., 417 S.W.2d 645. The last case cited is one in which the driver of the vehicle had no hydraulic brake and failed to apply his emergency brake just as in the case under consideration. The jury found negligence and proximate cause and this judgment was sustained by the Supreme Court.

Appellants in their Brief complain of the court’s action in permitting the ap-pellee to file a trial amendment with reference to future earning capacity. The appellants objected and asked the court to grant them a continuance because of surprise. This is a general injury case where the injuries are specifically set out and damages alleged in the sum of $125,000. No objections or exceptions were made to the petition of appellee by appellants. It is our opinion that future earning capacity evidence was admissible in such a case without further pleadings. City of Greenville v. Branch, Tex.Civ.App., 152 S.W. 478.

Trial amendments are authorized by Rule 66, Texas Rules of Civil Procedure, are liberally construed, and usually left to the trial court’s judgment. Texas Power & Light Co. v. Holder, Tex.Civ.App., 385 S.W.2d 873; Allison v. Simmons, 306 S.W.2d 206; Commerce Realty Co. v. McElvey, 250 S.W.2d 931.

Appellants assigned error to the action of the trial court in admitting ap-pellee’s income tax return for the last year of his full time employment, some ten years earlier for the reason that it was remote. This evidence in our opinion was admissible for the purpose of aiding the jury in passing upon the appellee’s reduced earning capacity. The remoteness goes to the weight of the evidence rather than its admissibility. Grocers Supply Co., Inc. et al v. Stuckey, Tex.Civ.App., 152 S.W.2d 911.

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