author: WOODLEY, Presiding Judge.

text:
    David Gonzales MEZA, Appellant, v. The STATE of Texas, Appellee.
    No. 34686.
    Court of Criminal Appeals of Texas.
    June 20, 1962.
    Rehearing Denied Oct. 10, 1962.

      Ralph Chambers, Houston, King C. Haynie (on appeal only) Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., and Neil McKay, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is murder; the punishment, life.

The sufficiency of the evidence to sustain the conviction is challenged.

The question is whether the circumstantial evidence, viewed in the light most favorable to the state, is sufficient to sustain the jury’s finding that the appellant is the person who committed the offense.

The deceased, a 50 year old Latin American, 5 feet 6 inches in height and weighing 131 pounds, met his death in Houston shortly after 1:15 A.M. by being stabbed in the back.

The wound was described by the Harris County Medical Examiner, whose qualifications as an expert were stipulated, as being a knife wound 1 ½ inches in length and 2 inches in depth, the edges sharply demarcated. The witness testified that the wound penetrated the aorta, and that it was a wound such as could have been caused by the knife introduced in evidence.

The evidence shows that the blood stained knife was taken from the pocket of a suit of clothes found in appellant’s room which appellant claimed, and which he was wearing at the trial. The knife was described as having a sharp blade ½ inch wide and some 4 inches in length, with a very sharp point.

The deceased left the Sibony Night Club in company with the band leader and operator Ponce after closing time, which was 1:15 on Sunday morning. When they got downstairs Ponce went to his car and he and his wife left for home.

Ponce testified that he never saw the deceased again and did not know what direction he went as they parted.

The deceased passed the Fire Station on Hogan Street, walking west toward North Main Street and the old Henke-Pillot building. He was alone and nodded at the firemen as he passed.

The deceased also passed Vincent Lucio, his wife Isabella and his sister Mary Lou, who were at or near the corner where there was a bus stop.

The appellant, according to the testimony of the Lucios, had come with them from the Pan-American Night Club where he and Mary Lou had been dancing and drinking. They were considering going to the Casa Blanca but appellant declined and Mary Lou, who had been walking behind with appellant, left him and joined her brother and sister-in-law and walked to the bus stop.

When the deceased passed going in the direction where she had left appellant, Mary Lou started to walk back. She testified that she called the appellant but he did not answer; that she got within three feet of the northwest corner of Henke-Pillot building and, as she returned to the bus stop, the deceased fell near the corner of the building, and that right after he fell she saw appellant pass the fire station.

Captain Kent, of the Houston Fire Department, testified that after the deceased, known to him only as “Cheto”, passed the station and the bus stop going in the direction of the old Henke-Pillot building, Mary Lou followed behind him some 20 feet; that Cheto hollered “No, No” * * * “and there was a person chasing him. And they chased him up to this building. The girl, then, headed back hastily toward the corner. * * * The person shoved Cheto out of sight * * * Immediately, the man came around the building. Cheto collapsed on the sidewalk.”

Captain Kent further testified that as Cheto was around behind the building “You could hear the thud of him being slammed on the building. * * * I heard a groan, as Cheto was slammed into the building * * * ». tkat as Qjgf-Q fen and Mary Lou ran to her brother and sister-in-law she said, and repeated many times, “It could have been me” or “It might have been me.”

Captain Kent called the police dispatcher and, as he stepped to the door: “I seen a figure run across the street, from the rear of Henke & Pillot’s old store, which is now the World Market. Ran across the street, into the driveway of a Fire Department Garage, and stopped, and started walking. Stopped running, and started walking toward us. * * *

“Q. * * * Where did that person go, as he was walking toward you? Show us where he went.

“A. He passed beyond us, and as he approached the station, he glanced up. Glanced in my direction, turned the corner, and went on down Hogan Street, going west. * * *

“Q. All right, sir. How was this defendant dressed at that time?

“A. In the same suit he has on now, or approximately the same suit.”

It was a matter of seconds, according to this witness, between the time Cheto fell and the time he saw appellant come around the corner. He identified appellant at a police line up and at the trial as the person who came around the corner and passed the station.

M. B. Jones, who was visiting at the fire station, followed the appellant, and Captain Kent and other firemen went to Cheto and found that he was dead.

Firemen Itson and Irwin and M. B. Jones gave testimony similar to that of Captain Kent, though neither heard the sound or groans described by Kent.

According to all of these witnesses, there were no persons seen in the vicinity at the time the deceased was stabbed other than those above mentioned. Several assembled after the officers arrived, however.

Captain Kent testified that he was the first person to get to the body of Cheto and “there was no other person in the general vicinity whatsoever.”

Appellant did not testify or offer evidence in his behalf.

We find the evidence sufficient to sustain the jury’s verdict finding the appellant guilty of murder with malice.

Appellant’s third complaint relates to his several informal bills of exception to testimony of Officer Kennedy relating to acts and statements of appellant while under arrest.

Several days after the killing, appellant was arrested by Officer Kennedy at the rooming house where he lived. The officer testified that appellant consented to the search of his room.

The trial court was careful to exclude testimony as to any statement or declaration of the appellant, but it is contended that the witness was permitted to testify as to acts of the appellant which were in the nature of a confession and might have been used by the state as a criminative fact against him. He cites Hill v. State, 95 Tex.Cr.R. 500, 255 S.W. 433; Glover v. State, 92 Tex.Cr.R. 617, 247 S.W. 556; and Kennison v. State, 97 Tex.Cr.R. 154, 260 S.W. 174.

The only act we find which could he said to come within the rule relied upon is the testimony of the witness to the effect that he asked the appellant what clothes he was wearing on the previous Saturday night (to which there was no objection). The witness was then asked and answered: “Q. All right. Did he point out any clothes to you? A. He did.” After this question and answer objection was made and overruled, but there was no motion to exclude the evidence. The question having been asked and answered before the objection, and there being no effort to have the evidence withdrawn from the jury, no error is presented warranting reversal. See Earwood v. State, 161 Tex.Cr.R. 171, 275 S.W.2d 652; Bearden v. State, Tex.Cr.App., 334 S.W.2d 447.

The witness then testified without further objection: “And what clothes did he point out to you, sir? A. He pointed out a charcoal colored suit. The same suit that he is wearing now * *

As presented, the court’s rulings do not call for reversal.

The remaining complaint relates to the testimony of Officer Kennedy that a suit of clothes was found in appellant’s room, which was identified by the witness as the suit appellant was wearing at the time of the trial, in which the knife above referred to was found. The contention is that the clothing was not the subject of a lawful search and seizure, it being purely evidentiary. La Rue v. State, 149 Tex.Cr.R. 598, 197 S.W.2d 570, is relied upon.

The clothes do not appear to have been seized. The search was with permission of the appellant, and therefore lawful, hence the rule relied upon by appellant has no application. The fact that appellant was under arrest when he gave consent did not vitiate the same. Henderson v. State, Tex.Cr.App., 353 S.W.2d 226, 227; Graves v. State, Tex.Cr.App. 336 S.W.2d 156; Sikes v. State, Tex.Cr.App., 334 S.W.2d 440; Feather v. State, Tex.Cr.App., 333 S.W.2d 851.

No reversible error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: DICE, Commissioner.

license: Public Domain

text:
    Lee Martinez RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 34683.
    Court of Criminal Appeals of Texas.
    June 27, 1962.
    Rehearing Denied Oct. 10, 1962.

      Massey LeRoy Peavy, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Gus J. Zgourides, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for the unlawful possession of marijuana; the punishment, enhanced under Art. 62, Vernon’s Ann.P.C., by reason of a prior conviction for an offense of like character, life imprisonment.

A conviction of appellant for the primary offense was reversed by this court in Rodriguez v. State, Tex.Cr.App., 340 S.W.2d 61, and subsequent thereto the indictment under which he now stands convicted was returned against him.

The indictment, in charging the primary offense, alleged that on or about the 22nd day of March, A. D. 1959, the appellant did unlawfully possess a narcotic drug, to wit: marijuana, and, in charging the prior conviction, alleged “that prior to the commission of the aforesaid offense by the said LEE MARTINEZ RODRIGUEZ, to wit, on the 4th day of May, A. D. 1956, in the United States District Court for the Southern District of Texas, Houston Division, the said LEE MARTINEZ RODRIGUEZ was duly and legally convicted, in said last named court, of an offense of like character and of the same nature as that here-inbefore charged against him in this cause, to wit, the offense of knowingly acquiring, buying and facilitating the transportation and concealment of, after importation, a narcotic drug, towit: heroin, upon an indictment then legally pending in said last named court and of which the said court had jurisdiction, and said conviction was a final conviction.”

M. B. Hightower, a witness for the state and narcotics officer with the City of Houston Police Department, testified that on March 22, 1959, as he was in the vicinity of 75th and Harrisburg Streets in Houston, Harris County, Texas, he received reliable information from a credible person to the effect that Lee Rodriguez (appellant) and Adam Guerra, along with some other Mexican males, were in a Pontiac automobile and that Lee Rodriguez and Adam Guerra had narcotics in their possession; that he did not have time to secure a warrant for their arrest because he feared that they would escape; that in approximately five minutes he observed the automobile, which had been described to him, pass; that appellant, whom he recognized, was riding as a passenger in the front seat; that he and his fellow officers stopped the automobile and he immediately went to the passenger’s side, opened the door, and asked the appellant and Guerra to remove themselves from the car. He further testified that as the appellant and Guerra alighted from the automobile, he observed the appellant drop a penny match box from his right hand to the ground and Guerra drop a small piece of brown wrapping paper; that he retrieved both articles and upon examination found the penny match box (State’s Exhibit No. 3) contained a “loose, green substance,” and the small piece of brown wrapping paper (State’s Exhibit No. 4) contained “three number five gelatin capsules with white powder in each capsule.”

State Narcotics Agent Scholl, who was with Officer Hightower on the occasion in question, corroborated his testimony concerning the dropping of the two exhibits and their recovery.

Floyd E. McDonald, a witness for the state and stipulated by the appellant to be a qualified expert witness in the field of chemistry and toxicology, testified that after examination of the plant substance in the penny match box (State’s Exhibit No. 3), he determined that it was approximately one and one-half grams of marijuana, a narcotic drug.

Robert F. Crawford, a witness for the state and stipulated by the appellant to be an expert witness in the field of chemistry and toxicology, testified that after an examination of State’s Exhibit No. 4, he determined that each of the three gelatin capsules contained heroin, a narcotic drug.

Proof was made by the state of appellant’s prior conviction and on cross-examination appellant admitted that he had been so convicted, as alleged in the indictment.

Appellant, testifying in his own behalf, denied that the marijuana was his or that he dropped it as testified to by the police officers.

Appellant insists that his conviction in federal court under the single-count indictment charging the offense of knowingly acquiring, buying, and facilitating the transportation and concealment of a narcotic drug, after importation, cannot support the enhancement of his punishment under Art. 62, V.A.P.C., because such conviction is not for an offense denounced as a felony offense in this state.

Reliance is had by appellant upon the decisions of this court in Ex parte Puckett, 165 Tex.Cr.R. 605, 310 S.W.2d 117, and Ex parte Scafe, Tex.Cr.App., 334 S.W.2d 170, which hold that a conviction in federal court, to be available for enhancement of punishment in this state, must be for an act denounced by the laws of this state.

Appellant insists that under the holding in the case of Pon Wing Quong v. United States, 111 F.2d 751 (Circuit Court of Appeals, Ninth Circuit, 1940), and other authorities cited in his brief, the acts of knowingly acquiring, buying, and facilitating the transportation and concealment of a narcotic drug, after importation, are four separate felony offenses, under Sec. 174 of Title 21 of the U.S.C.A., and because he entered a plea of guilty to the indictment in federal court it cannot be ascertained for which offense he was convicted and whether it was for an act which would he an offense under the laws of this state.

The federal court judgment introduced in evidence recites that appellant was convicted of the offense of “unlawfully acquiring and concealing narcotics.” Such act would constitute the offense of unlawful possession of a narcotic drug under Art. 725b, V.A.P.C., and, under the holding of this court in Lopez v. State, Tex.Cr.App., 352 S.W.2d 747, was available to enhance appellant’s punishment under Art. 62, supra. The contention is overruled.

Appellant insists that the indictment under which he stands convicted cannot support the enhancement of his punishment under Art. 62, supra, because it did not allege that the prior offense relied upon for enhancement was committed prior to the commission of the primary offense. The indictment alleges that prior to the commission of the primary offense appellant was convicted in the federal court for the offense relied upon for enhancement. Such averment clearly alleges that the prior offense was committed before commission of the primary offense. The contention is without merit.

Nor do we find any merit in appellant’s contention that the jury’s verdict cannot support a sentence enhancing the punishment because it fails to present an affirmative finding that the prior offense was committed prior to commission of the primary offense or that the prior conviction was before commission of the primary offense.

The verdict of the jury reads:

“We, the Jury, find the Defendant guilty as charged and that he was previously convicted of an offense of like character and of the same nature, and that after the judgment therein had become final, the Defendant committed the offense of unlawful possession of marijuana.”

The verdict, when read in connection with the indictment and court’s charge, clearly reflects a finding by the jury that the prior offense and conviction of appellant were before the commission of the primary offense charged in the indictment.

Complaint is made to the court’s action in refusing to order the prosecutor to deliver to appellant’s counsel at the trial the police officers’ offense report for the purpose of cross-examination. While appellant was entitled to the offense report for the purpose of cross-examination, under the record presented no error is shown. Upon motion of the district attorney, the offense report is included in the record before us both in the transcript and in the statement of facts as a qualification to appellant’s informal bill of exception to the court’s action in' refusing to have the report delivered to appellant. An examination of the offense report reveals no inconsistency between the report and the testimony given by the police officers upon the trial.

In Hughes v. State, Tex.Cr.App., 358 S.W.2d 386, we held that the trial court had the authority to make a statement a part of the record on appeal by incorporating it in the statement of facts as a qualification to an informal bill of exception, in order that this court might determine whether or not the appellant was injured or prejudiced by the trial court’s action in refusing to have the statement produced at the trial.

Appellant’s remaining contention is that the narcotics in question were inadmissible in evidence because they were obtained as the result of an illegal arrest and search. An examination of the record reflects that the narcotics were not obtained as a result of a search by the officers but were recovered from where they were thrown to the ground by appellant and his companion. The seizure of the narcotics by the officers under such facts was lawful and the court did not err m admitting the exhibits in evidence. Gizzo v. State, 160 Tex.Cr.R. 593, 272 S.W.2d 898; Robinson v. State, 163 Tex.Cr.R. 499, 293 S.W.2d 781; Robles v. State, 168 Tex.Cr.R. 617, 330 S.W.2d 454; Williams v. State, 168 Tex.Cr.R. 643, 331 S.W.2d 214; Nava v. State, Tex.Cr.App., 340 S.W.2d 955; and Lopez v. State, supra.

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

Opinion approved by the Court.


text:
    William Henry BECK, Appellant, v. The STATE of Texas, Appellee.
    No. 34668.
    Court of Criminal Appeals of Texas.
    June 27, 1962.
    Rehearing Denied Oct. 10, 1962.

      Brown & Shuman, by Clifford W. Brown, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., by George H. Nelson, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Pandering is the offense; the punishment, enhanced by reason of two prior convictions for felonies less than capital, life imprisonment

The conviction is under that portion of the pandering statute, Art. 519, Vernon’s Ann.P.C., which reads:

“Any person who shall procure or attempt to procure or be concerned in procuring with or without her consent a female for prostitution * * * shall be confined in the penitentiary for any term of years not less than two.”

Count #1 of the indictment under which appellant was convicted alleged that on or about the 6th day of February, 1961, he did unlawfully “by means of offering her money, attempt to procure, without her consent, Opal Wilhite, a female, for prostitution.”

By motion to quash, which was by the court overruled, appellant challenged the sufficiency of the indictment to charge an offense. In the motion, he urged that the allegation in the indictment that he did attempt to procure the female for prostitution by “means of offering her money” was insufficient because it did not allege what the offer of money was for or the manner or the means by which the offer was made and was nothing more than a legal conclusion of the pleader.

In support of his contention, appellant relies upon Monroe v. State, 143 Tex.Cr.R. 120, 157 S.W.2d 648, where it was held that the allegation in an indictment that the accused did unlawfully procure the female “by means of threats, force and fraud” was insufficient to charge an offense of pandering, under the statute.

In the case cited, the court stated the rule that in prosecutions under the phase of the pandering statute here presented, an indictment which merely follows the language of the statute is insufficient and in order to be sufficient to meet the requirements of definiteness the indictment must aver not only the acts or omissions on the part of the accused showing that he did in fact procure the female to become an inmate of a house of prostitution, but how the same was accomplished.

The indictment in the instant case clearly alleges that appellant attempted to procure the female by “means of offering her money.” Such allegation was sufficiently definite as to how he attempted to procure her. We find the allegations of the indictment sufficient to charge an offense under the statute.

The state’s testimony shows that the prosecuting witness, Mrs. Opal Wilhite, lived with her husband and three children in the city of Lubbock. The eldest daughter, Glenda, seventeen years of age, had been having difficulties with her father and on two occasions had run away from home.

On Saturday, February 4, 1961, appellant called Glenda at her home on the telephone and solicited her assistance in recovering his automobile from a girl whom she knew. As a result of the conversation, Glenda went to a drugstore and met the appellant, whom she had never seen before. In their conversation, appellant asked Glenda to marry him, talked about prostitution, told her “you make good money at it” and that “he was a hustler of women.” Glenda told appellant she would go to Oklahoma with him and agreed to meet him at the drugstore that night at 1:00 a. m. She then returned to her home and, later in the night after appellant failed to keep his appointment, went with a boy to Amarillo, where she secured work and stayed for some three weeks before returning home.

Shortly after midnight, appellant called the Wilhite home, asking for Glenda, and it was then discovered that she was missing. During the night and following day, Sunday, he continued to call and talked to Mrs. Wilhite about her daughter, who was still missing. In the conversations, appellant told Mrs. Wilhite that he loved Glenda and wanted to marry her. Appellant also stated that he was a private detective and would do all he could to find her.

Mrs. Wilhite testified that on one occasion appellant asked her to have a coke with him and that she began to act “fresh” with him because she thought he knew where the daughter was and she wanted to get him to tell her. She stated that in a telephone conversation with appellant on Monday morning appellant asked her if she would like to work “out here” and start selling herself and suggested that she divorce her husband and prostitute in her own house, saying: “We could make a lot of money.” She stated that in a conversation with appellant on Monday morning appellant invited her out to dinner and she refused; that when he called back later she suggested that he come to her house; that appellant came around 1:45 p. m.; that when he arrived she told appellant she was about out of “her mind” over the disappearance of her daughter and appellant handed her two capsules, told her to take them, and she then took one of the capsules and kept the other.

The testimony reflects that prior to appellant’s coming to the home, Mrs. Wilhite had notified the police and that after he left the home he was taken into custody upon a charge of possession of barbiturates and carried to the police station.

Later on Monday evening, appellant called Mrs. Wilhite, inferred that she had turned him in, and asked her to start working as a prostitute and make money to repay him for the money he had been out in making bail.

The following Tuesday morning, appellant again called Mrs. Wilhite and again talked to her about her prostituting to make money and pay him back for the money he had been out in making bail. In the conversation, Mrs. Wilhite informed appellant that she did not want to have anything more to do with him and for him not to call her anymore.

Officer Bill Bessent testified that he was in the Wilhite home on Tuesday and listened over an extension telephone to the conversation between tbe appellant and Mrs. Wilhite. He stated that in the conversation appellant asked Mrs. Wilhite for $150 to repay him for what he had spent for a lawyer and bondsman the previous day, and, after she stated she did not have the money, appellant stated to her: “Well, will you come on out to the house and go to work. * * * ?,” and when she asked what kind of work appellant stated: “You can come out there and sell * * * and get my money back”; “You can make a lot of money at it”; “We can * * * make a lot of money * *

Officer Bessent further testified that after listening to the conversation he went to the county attorney’s office, obtained a warrant for appellant’s arrest on a peace bond hearing, and then proceeded with other officers outside the city limits to Carlisle, where appellant was placed under arrest.

Proof was made by the state of the two prior convictions by the introduction in evidence of the prison records and comparison of fingerprints, in the manner which has been approved by this court.

Appellant did not testify or offer any evidence in his behalf.

Appellant questions the sufficiency of the evidence to sustain the conviction on various grounds.

It is first contended that the proof fails to show that appellant offered the prosecu-trix any money to engage in prostitution. Appellant relies upon the fact that both the prosecuting witness and Officer Bessent testified on their cross-examination that they could not say that appellant in so many words stated that he was offering her money. While they did so testify, both maintained that appellant did offer her money. Their testimony, which is undisputed, shows that appellant in his conversation with Mrs. Wilhite in which he proposed that she engage in prostitution stated to her “We can make a lot of money” and “You can make a lot of money at it.” We construe such statements, under the surrounding facts and circumstances, as an offer of money.

The term “offer” has been defined as meaning “a proposal to do a thing * * * ” to “make a proposal to.” See 67 C.J.S., page 89, and cases annotated.

We find the evidence sufficient to prove that appellant did offer the prosecuting witness money to engage in prostitution.

It is next contended that the evidence fails to show that the solicitation was made without the consent of the prosecuting witness, as charged in the indictment.

Under the statute, the attempt to procure may be with or without the consent of the female, and it is immaterial whether or not she consented thereto. Stevens v. State, 68 Tex.Cr.R. 282, 150 S.W. 944, and Currington v. State, 72 Tex.Cr.R. 143, 161 S.W. 478. The allegation in the indictment of want of consent may be treated as sur-plusage. We observe, however, that the prosecuting witness testified throughout the trial that her reason for dealing with appellant as she did was to try to find her missing daughter. Her testimony does not show consent to appellant’s offer.

Appellant next insists that the court erred in admitting evidence of certain extraneous offenses concerning appellant which were not admissible to serve any pertinent issue in the case.

By such contention, appellant complains of the evidence admitted which showed that he had attempted to procure the daughter, Glenda Wilhite, to engage in prostitution; that he was arrested on a charge of possession of barbiturates and was later arrested under a warrant in a peace bond proceeding.

Under the record, we find no error in the admission of such evidence.

The general rule which prohibits evidence of extraneous offenses has certain well-recognized exceptions. Under the exceptions to the rule, evidence of extraneous offenses or transactions is admissible where it shows system, intent, knowledge, identity, or is part of the res gestae. 23 Tex.Jur.2d Secs. 194-200, pages 294-310; Cage v. State, 167 Tex.Cr.R. 355, 320 S.W.2d 364.

The evidence of appellant’s attempt to procure the prosecuting witness’s daughter was clearly admissible as a part of the res gestae of the transaction and to show appellant’s scheme and design in the transaction with her mother, the prosecuting witness.

Appellant’s arrest for possession of barbiturates was clearly a part of the res gestae of the transaction with the prosecuting witness, and admissible as such.

Reversible error may not be predicated upon admission of the testimony showing appellant’s arrest upon a warrant issued in a peace bond proceeding over the objection that it was an extraneous matter, in view of the admission of similar testimony in the record without such an objection.

We overrule appellant’s remaining contention that the court erred in failing to charge the jury on the law of entrapment. “Entrapment,” in its legal sense, carries with it the presumption that the officer or agent manufactures the offense and incites the accused to commit it, for the purpose of prosecution. Peery v. State, 138 Tex.Cr.R. 155, 134 S.W.2d 283. Entrapment is also defined as “the inducement of one to commit a crime not contemplated by him for the mere purpose of instituting criminal prosecution against him” See: Cooper v. State, 162 Tex.Cr.R. 624, 288 S.W.2d 762, and cases there cited.

There is no evidence in the instant case that any officer, either acting by himself or through the prosecuting witness, induced appellant to commit the offense for the purpose of prosecuting him. No issue of entrapment was raised by the evidence.

The judgment is affirmed.

Opinion approved by the Court.


text:
    James Otice CHASTAIN, Appellant, v. The STATE of Texas, Appellee.
    No. 34713.
    Court of Criminal Appeals of Texas.
    June 20, 1962.
    Rehearing Denied Oct. 10, 1962.
    No attorney for appellant of record on appeal.
    Henry Wade, Criminal Dist. Atty., Pat McDowell, Bill Watts, and Phil Burleson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for driving while intoxicated; the punishment, thirty days in jail and a fine of $50.

Appellant was stopped and arrested by two city of Dallas police officers after they had observed the automobile he was driving weaving on a public street and drive across a parking lot near the street corner. Both officers testified that after stopping appellant they observed two or three cans of beer on the seat beside him; that appellant had the odor of alcohol on his breath, his eyes were bloodshot, his walk unsteady, and each expressed the opinion that at such time appellant was intoxicated.

Testifying as a witness in his own behalf, appellant admitted driving the automobile on the occasion in question but denied that he was intoxicated. He stated that the manner of his driving was due to defective brakes on the automobile and testified that he had only consumed about a half of one can of beer.

A witness called by appellant corroborated his claim of non-intoxication and the defective condition of the brakes on the automobile he was driving.

The jury resolved the disputed issue of intoxication against appellant, and we find the evidence sufficient to support their verdict.

The record contains no formal bills of exception or objections to the court’s charge and no brief has been filed on behalf of appellant.

We have examined the informal bills of exception appearing in the statement of facts and find no reversible error therein.

The judgment is affirmed.

Opinion approved by the Court.


author: ARCHER, Chief Justice.

text:
    The TRAVELERS INSURANCE COMPANY. Appellant, v. Louis T. GARCIA, Appellee.
    No. 10986.
    Court of Civil Appeals of Texas. Austin.
    Aug. 1, 1962.
    Rehearing Denied Oct. 3, 1962.

      Matthews, Nowlin, MacFarlane & Barrett, James D. Baskin, Jr., San Antonio, for appellant.
    Reid & Taylor, Basil H. Taylor, San Antonio, for appellee.
   ARCHER, Chief Justice.

This is a workmen’s compensation case involving Sections 12e and 12b of Article 8306, Vernon’s Ann.Civ.St., which deal with the tender of surgical treatment and the relative duties and liabilities of the parties thereunder. In this case the Trial Court disregarded jury findings that Plaintiff refused tendered surgery which would have effected a cure or materially and beneficially improved his condition and which would not have been more than ordinarily dangerous. Having disregarded these findings, the Trial Court entered judgment for total and permanent disability in accordance with the remaining jury findings. The sole question before this Court is whether the Trial Court erred in disregarding the jury findings which would limit defendant’s liability.

The one point of error is as follows:

“The Trial Court erred in overruling Defendant’s Motion for Judgment on the Verdict, in granting Plaintiff’s Motion for Judgment, in disregarding the jury’s answers to Special Issues Nos. 10, 11, and 12, entering judgment for Plaintiff.”

Since there appears to be no dispute as to the facts in this case, we will consider the propriety of the action of the Court in entering the judgment.

The gravamen of this case is the failure of the Industrial Accident Board to comply strictly with Sections 12e and 12b of Article 8306, V.A.C.S., which deal with the tender of treatment, admission of liability, the duties of the Board and the liabilities of the parties.

There is no question but that liability was admitted and treatment tendered by the Association, and that demand was made on the Board to require plaintiff to submit himself to surgery. In response thereto, the Board appointed Dr. Oliver, a doctor of medicine specializing in orthopedic surgery, who did examine the plaintiff and determined that he had a herniated inter-vertebral disc and that curative surgery was called for and that such surgery would effect a cure or materially and beneficially improve plaintiff’s condition; that it would not be more than ordinarily unsafe and so informed the plaintiff who indicated to Dr. Oliver that he did not want surgery performed.

Plaintiff had told Dr. Day and Dr. Price that he did not wish to submit himself to surgery. No other physician advised plaintiff that surgery would not benefit him or that such surgery would be unusually dangerous to him.

After receipt of the doctor’s reports and their expert opinions, all of which had been reduced to writing and filed with the Board, and being all of the evidence and record information the Board had before it, the Board did not state in writing upon unanimous order and deliver to the employee and the Association directing the employee at a time and place therein stated to submit himself to an operation for said injury, as provided in Art. 8306, Secs. 12b and 12e.

By an award or order the Board, on April 7, 1961, made the following findings:

“Named insurer is ordered to pay employee $35.00 per week for not exceeding 100 consecutive weeks beginning 9-13-59 for temporary total disability.
“The Board finds that named insurer filed a Demand for Surgery. Said Demand for Surgery is hereby denied as named employee has declined same.
“8.X Orders: The carrier to deduct from this award and to pay to the above named attorneys a fee on the unpaid portion of this award in the amount of 15% of the amount ordered paid.
“This is the final award of the Board. Any claim for additional medical, hospital, nursing, chiropractic and medical expense should be made within 6 months from the date of this award. If you are dissatisfied with this award and desire to appeal it, you must give the Board written notice within 20 days from the date this award is entered and thereafter file suit in court within 20 days from the receipt of notice by the Board.”

It is apparent that the Board has not complied with Art. 8306, Sec. 12e and consequently the employee has not legally been given an opportunity to submit to an operation, or to refuse to submit to such operation.

The plaintiff gave notice of intention to appeal and timely filed this suit.

Art. 8307, Sec. 5 provides in part that the Trial Court shall determine the issues in such cause instead of the Board upon trial de novo and places the burden of proof upon the party claiming compensation.

The plaintiff alleged that as a result of injuries received he is wholly and totally incapacitated for the usual and customary tasks of a workman and that such will continue for a period of 401 weeks, and that he is entitled to receive the sum of $35.00 per week, and sought judgment.

The defendant plead that a surgical operation would effect a cure or materially and beneficially improve plaintiff’s condition and an operation had been tendered at its own expense but that plaintiff did not agree to submit to surgery, and alleged the action of the Board as has been hereinabove recited and that plaintiff is entitled to be compensated for a period not exceeding one year; that plaintiff’s refusal to submit to surgery is an injurious practice which tends to imperil or retard his recovery. The defendant also alleged that it had paid the plaintiff for 83 weeks of compensation benefits amounting to $2,-870.00 and prayed that plaintiff take nothing.

The plaintiff moved the Court to instruct the defendant not to introduce any evidence during the trial pertaining to the possible or probable curative benefits of surgery, or in anywise mention surgical procedures or the results thereof. This motion was refused by the Court.

On trial before a jury the oral depositions of Dr. Price and Dr. Oliver were introduced into evidence, which were to the effect that an operation was called for and that such would cure or materially benefit the plaintiff and that such an operation would not be more than ordinarily unsafe.

The plaintiff testified as to examinations by the doctors and as to their statements to him concerning surgery.

The Court submitted twelve issues to the jury and in answer to issues Nos. 1 and 2 the jury found that the plaintiff’s injuries were total and permanent. In answer to issues Nos. 10, 11 and 12 the jury found that the plaintiff refused to submit himself to surgery as tendered to him and that the operation tendered would have materially and beneficially improved plaintiff’s condition and that the operation would not have been more than ordinarily unsafe.

On motion of plaintiff the Trial Judge disregarded the findings in Special Issues Nos. 10, 11 and 12 and entered judgment for plaintiff. The defendant filed its motion for judgment on the verdict of the jury, which was refused.

We believe that the Trial Court erred in disregarding the answers of the jury to Special Issues Nos. 10, 11 and 12.

In Traders & General Ins. Co. v. Wilkinson, Tex.Civ.App., 261 S.W.2d 863, error ref., N.R.E., the Court went into detail in discussing and determining a hernia case under Sec. 12b, Art. 8306 and held that the Trial Court erred in disregarding the findings of the jury to the effect that an operation was safe and it reversed and rendered judgment limiting compensation to one year as provided in Sec. 12b.

In Texas Employer’s Insurance Association v. Chancellor, Tex.Civ.App., 292 S.W.2d 360, error ref., N.R.E., which was not a hernia case under Sec. 12b but was an injury controlled by Sec. 12e, the Court followed the Wilkinson case and reversed and remanded a case in which the Trial Court refused to submit to the jury on behalf of the insurer the question of the safety of the tendered surgery. We quote from that opinion:

“We believe that when an insurance company follows the procedure prescribed by Section 12e and demands that a surgical operation be had, it becomes entitled to an issue on trial de novo upon the matter of whether such an operation would be ‘not more than ordinarily unsafe’, in the event such operation is expressly or constructively refused by the injured employee.
* * * * * *
“It is often stated that ‘justice delayed is justice denied’, and from the record in this case it is apparent that should we hold that the trial court was without jurisdiction, thus returning the employee’s claim to the Industrial Accident Board for more meticulous attention to form in its procedure pursuant to ordering an operation, only the employee would suffer prejudice. Yet, such a holding on our part would appear as the only alternative to that we believe to be correct, i. e., that the insurance company is entitled to have the cause remanded to the court below for a trial on the merits, in the course of which it should be permitted to try out the issue of whether the operation demanded by it, or ordered by the Board, would not have been more than ordinarily unsafe.”

Unfortunately for us the Court did not indicate the judgment to be rendered in the event the jury found, as here, that the operation was advisable.

In the case of Liberty Mut. Ins. Co. v. Wright, Tex.Civ.App., 196 S.W.2d 349, error ref., which was a hernia case under Sec. 12b of the statute, it was held:

“But if we assume that the record is sufficient to imply a finding by the Board that it was not more than ordinarily unsafe for appellee to submit to the operation, and a final award of 52 weeks compensation based on that finding, we find nothing in either the statute or the decisions of our courts which would preclude the employee from trying the issue anew in the trial de novo in the district court. * * * We have found no instance in which a final award of the Board or any part of a final award of the Board was declared to be binding on the court or the parties in the trial de novo, except in the sense that the entering of a final award by the Board is a condition prerequisite to exercise of jurisdiction by the court. The cases holding that an interlocutory order of the Board ordering an operation is not appealable have no application to the question before us. Nor can we find any good reason why the court might not hear and determine the question of whether or not it would be safe for the employee to submit to an operation where he refuses to do so in the belief that it would be unsafe for him to do so. If he believes that it would be unsafe to submit to an operation, and if the Board finds against him and limits the recovery of compensation to 52 weeks because of his refusal to submit to the operation, it cannot be said that there is any lack of finality in the Board’s award. And to deny the employee the right of appeal to the courts from a finding of the Board which, under the facts of the present case, reduces the amount of compensation from 401 to 52 weeks, is to leave the employee without any relief by way of appeal to the courts from the final order of an administrative agency. To state the facts of the situation is, we believe, to demonstrate convincingly the error in appellant’s basic theory of the case.
“ * * * it is plain that any person brought under the jurisdiction of the Industrial Accident Board, who is not willing to abide by the Board’s final decision, may take the entire case to a court of competent jurisdiction. Such court is vested with full power to determine the issues and the rights of all parties involved, and to try the case just as if the suit had been filed originally in such court. The Board loses jurisdiction of the claim. Its award is vacated, and is no longer in force.”

As demonstrated under the authorities cited above, both the employer and employee, if the issue is properly preserved and presented, have the right on appeal from a final award of the Board to have tried de novo in the Trial Court the issue of whether a tendered operation, upon admission of liability is advisable and would be “not more than ordinarily unsafe.”

One problem here is that appellee has never been afforded the- opportunity of accepting or refusing the proffered operation subsequent to a finding by an authorized agency or- body that the operation would be advisable and “not more than ordinarily unsafe.” The Board did not make such finding, hence appellee was never legally called upon to accept or reject the operation tendered by appellant while the matter was before the Board. It is true that the failure of the Board was not the fault of appellant. It is likewise true that it was not the fault of appellee.

Not until the jury made its findings in this case was appellee officially. apprised that the tendered operation would be advisable and “not more than ordinarily unsafe.” It is our opinion that upon the return and acceptance of such verdict the Court should have called upon appellee to refuse or undergo the tendered operation.

Instead of pursuing this course, the Trial Court granted appellee’s motion to disregard the pertinent issues. While ap-pellee bears responsibility for making the motion, we cannot say that it is tantamount to a declination to submit to surgery.

Pending disposition of this case in this Court we called upon appellee to indicate his willingness or unwillingness to submit to surgery which the jury has found advisable. We quote his reply:

“I, Louis T. Garcia, Appellee in Cause No. 10,986, in the Court of Civil Appeals, Third Supreme Judicial District of Texas at Austin, styled The Travelers Insurance Company vs. Louis T. Garcia, pursuant to an order entered by said Court on June 27, 1962, in its ‘Preliminary Opinion and Order’, and in compliance therewith; however, without waiving any statutory rights which I may have under the Workmen’s Compensation Act of the State of Texas, and without waiving any appellate remedies available to me, state as follows:
“I am willing to undergo surgery at the hands of a competent surgeon selected by this Court at such time and place as directed by this Court at the cost of The Travelers Insurance Company, with compensation accrued being accelerated to One Hundred Five Dollars ($105.00) per. week and paid to date, and accelerated compensation being paid weekly during the period of my recovery from the operation, and upon The Travelers Insurance Company assuming liability as required by Article 8306, Section 12e of the Workmen’s Compensation Act of the State of Texas.”

We do not consider this statement to be an unconditional willingness to submit to surgery as we believe the statute contemplates. We hold it to be a refusal to submit to surgery.

Our problem now is to determine what our judgment should be.

Sec. 12e provides that “if the employe refuses to submit to such operation, the board may order or direct the association to suspend the whole or any part of his compensation during the time of said period of refusal.”

This language is immediately followed by the provision that “The results of such operation, the question as to whether the injured employé shall be required to submit thereto and the benefits and liabilities arising therefrom shall attach, be treated, handled and determined by the board in the same way as is provided in the case of hernia in this law.”

In order to accommodate the whole of Sec. 12e, and to prevent a conflict in its terms, we construe the specific suspension of compensation during the period of refusal of surgery to be interlocutory in nature and not to control the limitation of liability prescribed by the hernia section and incorporated by reference into Section 12e. If this were not so then the Board could suspend all compensation while surgery was refused and the employee would not be entitled to recover the one year’s compensation provided in the hernia section.

In accordance with these views, we reverse the judgment of the Trial Court and render judgment that appellee take nothing by his suit.

      . The quoted phrase is found only in See. 12b, Art. 8306, V.A.C.S., relating to hernia. (Inguinal hernia.)


author: CHADICK, Chief Justice.

text:
    James M. WRENN, Appellant, v. Stanley I. PILGRIM, Appellee.
    No. 7432.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 21, 1962.
    Rehearing Denied Sept. 18, 1962.

      T. D. Wells, Paris, for appellant.
    Moore & Lipscomb, Paris, for appellee.
   CHADICK, Chief Justice.

This is a venue case. The trial court judgment overruling a plea of privilege is affirmed.

Appellee Stanley I. Pilgrim, as plaintiff, brought suit against appellant James M. Wrenn, as defendant, in a district court of Lamar County, to collect a balance due on the purchase price of an airplane, and to foreclose a mortgage lien securing the indebtedness. Pilgrim’s original petition alleged Wrenn was a resident of Návarro County, and that a part of the mortgaged property, the airplane, was in Wrenn’s possession in that county, and the other part of the mortgaged property, a hangar, was situated in Lamar County.

Wrenn filed a timely plea of privilege and answer subordinate thereto; Pilgrim controverted Wrenn’s plea and claimed venue in Lamar County, by virtue of Sub-division 10, Article 1995. A hearing of the venue issue began and on July 21, 1961, was recessed until September 13, 1961. The recess order granted Wrenn leave to file an amended plea of privilege and Pilgrim leave to file an amended petition.

On August 18, 1961, Wrenn filed an amended plea of privilege. Pilgrim thereupon filed his first amended controverting plea on September 6 and therein asserted Lamar County venue under the provision of Sub-division 12, Article 1995. The date for resumption of the recessed hearing, September 13, was reached and presumably the recess was extended by agreement. No mention is made of it in the record. Thereafter, a second amended controverting plea was filed by Pilgrim, after having obtained leave of the court, on September 27, 1961. This pleading claimed venue for Lamar County, under Sub-division 12, Article 1995, and also alleged that Wrenn was a resident of Lamar County, and that such fact conferred venue on the court of such county under the general venue statutes.

Pilgrim followed this pleading by filing, on November 9, 1961, a request for admissions from Wrenn. In answering the admissions request on the 27th day of that month, Wrenn stated that he then resided in Lamar County and had so resided since the 27th day of July, 1961. Next, on November 28, Pilgrim filed an amended petition containing allegations in language, if not identical, at least substantially the same as that of the allegations in his original petition, with the exception that the instrument plead the amended petition was in lieu of the original petition, and the residence of the defendant and the location of the airplane was Lamar County. Regular citation issued and the amended petition was served upon Wrenn December 4, 1961, by a deputy sheriff of Lamar County. The citation bore the same number and style as the case then pending between the parties. The amended petition was followed on December 27, 1961, by Pilgrim’s third amended controverting plea, wherein Pilgrim adopted his first amended original petition, and again claimed the venue privilege afforded by Sub-division 12, Article 1995 and alleged that at the date of the filing of the amended original petition an’d at the date of service thereof, Wrenn resided in Lamar County, Texas.

•• After hearing the trial judge overruled Wrenn’s plea of privilege on December 29, 1961, and an appeal from such ruling has been perfected. The following three points of error have been briefed. “FIRST POINT: The trial court erred in overruling the appellant’s plea of privilege for the reason that the appellee did not prove that the appellant resided in Lamar County, Texas, on the date he filed his original petition herein, nor at' the time appellant was served with citation herein, nor at the time appellant filed his original plea .of privilege herein, appellee not proving an exception to the exclusive venue in the county of one’s residence existed under Article 1995, Sub-division 12, V.A.T.S. SECOND POINT: The trial court erred in holding that the residence of the defendant-appellant at the time of the filing of the suit does not control venue. THIRD POINT: The trial court erred in overruling appellant’s objection to appellee’s introducing in evidence of the citation issued on and to plaintiff’s appellee’s First Amended Original Petition which abandoned appellee’s controverting plea”. The second and third points of error will be discussed in reversed order.

In support of point number three, Wrenn argues that Pilgrim’s amended petition was filed without leave and constituted an abandonment of Pilgrim’s original cause of action. The first amended original petition reiterated the identical cause of action plead in the original petition, that is, an action for debt and to foreclose a lien. Alleging therein a change in the residence of the defendant and situs of the mortgaged property did not change, add to or effect the gist of the cause of action originally plead. City of Wichita Falls v. Lipscomb, Tex.Civ.App., 50 S.W.2d 867, w. r. The foregoing recitation of the order and time in which various pleadings were filed shows that the first amended original petition was filed more than 30 days prior to the date the hearing was held. Disregarding the recitation that leave to amend was granted Pilgrim in the order of July 21, Pilgrim was authorized by Rule 63 Vernon’s Ann.Tex. Rules to file an amended petition without leave of the court at any time prior to the seventh day before the hearing date, provided filing did not operate to surprise his advisary. Contention was not made in the trial court, nor here that filing the amended petition constituted surprise. Appellant’s point of error No. 3 must be overruled.

Wrenn’s brief presents no point of error regarding the filing of Pilgrim’s third amended controverting plea. However, he treats it as a nullity in arguing point of error No. 3 on the basis that it was filed within two days of the hearing date without leave of the court having first been obtained. The only transaction in the hearing which might be construed as objection to Pilgrim filing this third amended controverting plea was as follows :

“MR. MOORE: The plaintiff offers in evidence CITATION issued by the Clerk of the District Court of Lamar County, Texas on the 29th day of November, 1961, to which was attached the First Amended Original Petition and the return thereon showing service on James M. Wrenn of Lamar County, Texas by the Sheriff Lonnie Player through his deputy on December the 4th, 1961.
“MR. WELLS: To which we object, Your Honor. We announced we were not waiving any rights we had and we were not before the Court on that amended petition. That amended petition completely abandoned his controverting plea. He completely abandoned his controverting plea. His controverting plea was not amended for twenty-nine days and we received yesterday a copy of his motion, his purported third amended controverting plea, but we are not before the Court on this and have not agreed to go to trial on that. We are here on our original motion and plea of privilege and amendments we filed to our original plea of privilege.
“THE COURT: Overruled; to which the defendant excepted”.

From the foregoing quote it may be seen no objection was made to the filing of the instrument, no claim of surprise asserted; and a continuance was not requested. Under the circumstances of this record, error in the filing of the third amended controverting plea is waived. City of Wichita Falls v. Lipscomb, Tex.Civ.App., 50 S.W.2d 867, w. r., 2 McDonald Texas Civil Practice, Section 806, Page 734.

Pilgrim did not abandon his original cause of action or the contest of Wrenn’s plea of privilege when he filed his first amended original petition as it is permissible to amend to set up facts arising after the original pleadings are filed. Phipps v. Reed, Tex.Civ.App., 219 S.W.2d 561, n. r. e. The second point of error must be overruled because venue is controlled by the facts plead and proved at the time the plea of privilege is heard. Phipps v. Reed, supra; Avery v. Llano Cotton Seed Oil Mill Ass’n, Tex.Civ.App., 196 S.W. 351 w/r; 1 McDonald Texas Civil Practice, Sec. 406, P. 330.

The conclusion expressed makes a discussion of appellant’s first point unnecessary. Each point of error is overruled and the judgment of the trial court is affirmed.


author: POPE, Justice.

text:
    Roy GREENLAND, Appellant, v. Ben A. PRYOR et al., Appellees.
    No. 14015.
    Court of Civil Appeals of Texas. San Antonio.
    July 18, 1962.
    Rehearing Denied Sept. 5, 1962.

      Strickland, Wilkins, Hall & Mills, Mission, for appellant.
    Hill, King & McKeithan, Mission, for ap-pellees.
   POPE, Justice.

This is an appeal from an order granting a receivership over a tract of farm land and the crops produced from the land. Plaintiff, Ben A. Pryor, sued Roy Greenland and Clarence W. Burr for foreclosure of a deed of trust lien against the land and asked for a receivership over both the land and the crops. As of November, 1961, the sum of $17,500 was owing on the deed of trust note which Pryor holds. Burr was the maker of the note. At the time of the trial, Greenland was in sole possession, and Burr was out of possession of the land. Burr joined in Pryor’s prayer for the receivership, which the court granted. Greenland asserts that the appointment of a receiver was wrong, because (1) Pryor’s lien upon the land does not extend to the crops, and the land is more than ample security, (2) Burr seeks a receivership but asks for no adjudication of his rights against Greenland in this action, and (3) the order appointing the receiver was not conditioned upon the applicants’ making a bond, as required by Rule 695-a, Texas Rules of Civil Procedure. We sustain these contentions.

Section 1, Article 2293, Vernon’s Tex.Civ.Stats., authorizes a receivership in an action by a creditor where, among other things, it is shown that the property or fund is in danger of being lost, removed or materially injured. Section 2 of the same article authorizes a receivership for a mortgagee in an action for foreclosure when he makes a similar showing, or that the property is probably insufficient to discharge the mortgage debt. A creditor, to be entitled to a receivership, is one who has a specific lien upon some specific fund or property belonging to the debtor. In other words, he must be a secured creditor. Carter v. Hightower, 79 Tex. 135, 15 S.W. 223; Comment, 40 Tex.Law Rev. 649. Pryor is a secured creditor only with respect to the land. His deed of trust lien does not extend to nor include the crops. Bowers v. Bryant-Link Co., Com.App., 15 S.W.2d 598; Gulf Stream Realty Co. v. Monte Alto Citrus Ass’n, Tex.Civ.App., 253 S.W.2d 933; McGarraugh v. McGarraugh, Tex.Civ.App., 177 S.W.2d 296; Zeigler v. Sawyer, Tex.Civ.App., 16 S.W.2d 894. Pryor has no rights in growing crops until they pass by a foreclosure sale, and then only if they have not previously been severed. Willis v. Moore, 59 Tex. 628; Standridge v. Vines, Tex.Civ.App., 81 S.W.2d 289; Ellwood v. Pollard, Tex.Civ.App., 46 S.W.2d 731; Zeigler v. Sawyer, supra; Sanger Bros. v. Hunsucker, Tex.Civ.App., 212 S.W. 514. Pryor, with respect to the land, is therefore a secured creditor; with respect to the crops, he is a general creditor. His proof and prayer relate to the dissipation of funds derived from the crops, but his lien does not prevent this.

Pryor has failed to prove his right to a receiver even with respect to the land upon which he holds security. He has failed to prove that the property is in danger of being lost or materially injured under Sections 1 and 2 of Article 2293. He has failed to prove that the property is probably insufficient to discharge the mortgage debt under Section 2 of the same article.

Burr, a co-defendant, also asked for a receiver. That was the only relief he sought. Burr, in a separate suit and in a different court, has sued Greenland. By that action he claims to be sole owner of the farm tract, and Greenland claims that they are partners. Burr v. Greenland, Tex.Civ.App., 356 S.W.2d 370. The rights between Burr and Greenland, both as to the land and the crops, will be determined in that case, not in this one. Burr, therefore, has his main suit filed separately from this one wherein he seeks only a receivership. Burr, in this suit, prays that the receiver sell the crops and apply the proceeds upon the debt. He prays that the receiver perform functions about a dispute which the appointing court is not asked to decide. This procedure violates the rule that the appointment of a receiver must be auxiliary to a suit about some right which constitutes an independent cause. Glaspy v. Grubbs, Tex.Civ.App., 110 S.W.2d 1188; Junkin v. Sterchi Furniture Co., Tex.Civ.App., 92 S.W.2d 1098; 75 C.J.S. Receivers § 5. Burr failed to prove his right to a receiver.

Greenland’s final point is that the order appointing the receiver was not conditioned upon the applicants’ compliance with Rule 695-a, T.R.C.P. The receiver made a bond, took his oath, and entered upon his duties as receiver. However, neither Pryor nor Burr made a bond conditioned for the payment of damages and costs in the event of a wrongful appointment of the receiver. This point, too, must be sustained. Compliance with Rule 695-a is a prerequisite to the appointment of a receiver. O’Connor v. O’Connor, Tex.Civ.App., 320 S.W.2d 384; Dinwitty v. McLemore, Tex.Civ.App., 291 S.W.2d 448, 452; Low Cost Homes Bldg. Co. v. Banks, Tex.Civ.App., 228 S.W.2d 535; Bell v. Bell, Tex.Civ.App., 204 S.W.2d 527; Crittenden v. Heckman, Tex.Civ.App., 185 S.W.2d 495.

The order appointing a receiver must therefore be reversed as well as the injunction against Burr and Greenland not to interfere with the receiver. The orders for the receivership and injunction are dissolved.


author: COLLINGS, Justice.

text:
    CITY OF SNYDER, Appellant, v. W. Prentis BASS, Appellee.
    No. 3745.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 7, 1962.
    Rehearing Denied Sept. 28, 1962.
    Saner, Jack, Sallinger & Nichols, Dallas, Blanchard, Carroll & McLaughlin, Snyder, for appellant.
    Key, Carr, Carr & Clark, Lubbock, Gene L. Dulaney, Snyder, for appellee.
   COLLINGS, Justice.

W. Prentis Bass brought suit against the City of Snyder seeking to recover the value of street pavement and sewer lines placed in a subdivision while it was outside the city limits. Plaintiff was the developer of the subdivision and brought this suit after the area had been annexed by the city. He also sought a mandatory injunction to require the city to extend certain water lines within the subdivision and to have the court hold void an ordinance of the city.

The court denied plaintiff any injunctive relief but granted him judgment against the city for the sum of $14,329.00, the value of the street paving and sewer lines as found by the jury. The court found, as a matter of law, that the annexing of said subdivision by the city constituted a taking of plaintiff’s property which required compensation to be paid him under Section 17, Article I, of the Texas Constitution, Vernon’s Ann.St. The city of Snyder has appealed from the judgment against it and W. Pren-tis Bass has appealed from that portion of the judgment adverse to him.

In several points City of Snyder contends that the court erred in entering a judgment for the plaintiff and in not entering judgment for appellant city because, as a matter of law, there is no liability on the part of a city for the value of improvements placed upon public streets or alleys by a developer at a time when said streets or alleys were a part of the public thoroughfare of the county and that the annexation of such a subdivision at a later date does not amount to a taking of property belonging to such subdivider.

In this connection the evidence showed that in 1955, appellee W. Prentis Bass owned certain undeveloped real property near the city limits of the City of Snyder. He made application to the City for his property to be annexed but the city declined because it was not adjacent to the city limits, that is, a 60 foot roadway owned by another developer separated appellee’s land and the city, and the city at that time had a policy against involuntary annexation. In 1956, while said property was outside the city limits, Bass filed the plat of said addition with the County Clerk. On June 4, 1956, the subdivision was re-platted and the re-plat was approved. At the time this plat was filed appellee dedicated to the public the streets and alleys shown thereon. In 1958 or 1959, Bass installed in said addition the sewer line in question. Although it was outside the city limits, the line was constructed according to the city’s specifications and was permitted to be tied to the city’s main. The sewer lines are still being used for the purpose for which they were installed, that is, for the convenience and use of the people within said subdivision. The evidence further shows, that after the addition was platted and while it was outside of the city, Bass installed approximately 1600 feet of paving and that such paving was done at his expense, and was not required to be done by the city. At the time of the refusal by the city to annex the Bassridge Addition in 1955, the city had a policy of reimbursement of developers for sewer lines laid out in new additions. This policy was changed on October 1, 1956, by an ordinance of the city.

Appellee Bass testified that in 1959, he made demand to the City Council that they either pay him for the improvements he had installed in his subdivision or not annex his territory. He stated that the City Council refused his request for payment and that they thereafter annexed the subdivision on December 28, 1959. Appellee testified that the subdivision was originally platted into 43 lots; that he sold 19 lots and had 24 left in addition to 2 blocks which could be platted into 9 more lots. Appellee stated that he purchased the approximately 30 acres which he platted as the Bassridge Addition in 1955, and paid $1,000.00 per acre for the property; that at the time it was purchased and at the time the subdivision was platted it was not within the City limits of Snyder. He further stated that as a part of the dedication, when he filed the plat of said subdivision, he dedicated the streets, alleys and easements as shown on the plat and that such dedication was voluntarily made by him so that the City of Snyder would supply water to his subdivision. At the time of the dedication of said streets and alleys the property involved was situated in the county but was not within the City of Snyder. No dedication was made to the city. Appellee testified that he was merely making a dedication to the public as shown on the plat of dedication. He further testified that after he made the dedication he elected to pave some streets in the subdivision and did this in order to make them nicer to travel on for the convenience and benefit of his customers. Appellee stated that he sold lots in his addition for various amounts; that one lot sold for $3,250.00, one for $3,500.00, and when he sold such lots he obligated himself to put in utilities, which included either a septic tank or a sewer system and further obligated himself to pave the streets in said subdivision; that he sold 19 lots and, as to the lots sold, he was obligated to pave the streets, furnish water and sewer, and that the water, sewer lines and street paving were put in by him for the benefit of people who were buying lots in his subdivision. Appellee testified that in determining the price at which he would sell his lots he considered how much he had paid for street paving and the amount spent for sewer lines; that each ■of these factors was considered by him together with the cost of the land and the profit he desired to make in determining the price he would ask for any particular lot. Appellee stated that in selling the lots he was recouping his investment which included the cost of his land, paving, water and sewer lines and profit. He stated that he had sold 19 lots in the subdivision for $48,800.00, and that such lots cost $44,650.-00, thereby showing a profit of $4,150.00 on the 19 lots. Appellee stated that at the time he paved the streets in 1957 or ’58, he did so with the idea that it would help sell the lots, and that his idea or intention was the same when he put in the sewer lines; that it was his intention to prorate the cost of such paving and sewer lines in the sale price of the lots. Appellee testified that at the time he installed the street paving and sewer lines, he knew that the City of Snyder had no reimbursement policy for the expense incurred by a developer in such an improvement; that prior to the time the area was annexed by the city he had paved the streets and they were being used by the public generally and that after the area was annexed to the city, the streets continued to be used for the same purpose and that the city had never tried to interfere with the use of such public streets after annexation; that the sewer lines which had been installed by him prior to the annexation were likewise used by the public generally both before and after the area was annexed to the city. In the sale of the 19 lots out of said subdivision appellee Bass did not make any reservation of title to the sewer mains in the deeds of conveyance, nor did he reserve any title to any portion of the streets, alleys or sewer system.

Appellee urges that the court properly enter judgment against the City of Snyder for the value of the street paving and sewer lines; that the annexation of the area by the city and its subsequent use and control of the improvements installed by him amounted to a taking of appellee’s property for public use without compensation. Appellee contends that by dedicating the streets and alleys to the public in 1955, he did not give up title to the pipe lines and pavement installed by him in 1958 and 1959; that a dedication of streets to the public is the giving of an easement only and that the fee title remained in him as the dedicator even in the absence of an express reservation. He urges that he did not dedicate such improvements to the city; did not consent to an annexation without compensation and has exercised no use of the property in question inconsistent with the dedication he made to the public. Ap-pellee urges that since the annexation the city has controlled and used the sewer line; that it controls and orders repairs of the pavement, and that the city, by its City Manager, has admitted that through the use of appellee’s sewer lines and pavement it is performing its Charter obligation to provide pavement in new annexed additions. Appellee contends that his property has been taken by the City and that the court properly held he was entitled to compensation therefor. We cannot agree with this contention.

The evidence shows conclusively that appellee Bass filed a plat of the Bass-ridge Addition in 1955, and dedicated the streets, alleys and easements as shown on the plat to the use of the public; that he sold lots out of said subdivision and executed deeds in which he was obligated to pave the streets, furnish water and sewer lines and street paving. He then made application to the City to annex his addition but his request was refused. The city did agree to permit him to tie his sewer lines to the city’s main if constructed according to the city’s specifications. The City also agreed to and did supply water to his subdivision. Under these circumstances ap-pellee installed the sewer lines and paving in his addition at his own expense. Ap-pellee’s contention that the action of the City in thereafter annexing his subdivision constitutes a taking of his property without compensation is, in our opinion, fully answered by the holding in Hightower v. City of Tyler, Tex.Civ.App., 134 S.W.2d 404, (Writ Ref.), in which the court stated as follows:

“Having connected the water and sewer lines with the City’s system for such service and received such service, and the City having put the lines to no other use than that contemplated by appellants, and the record showing that appellants made no reservation of any interest or right of use of the lines, we think it necessarily follows that Appellants gave consent to the City to make such use of the lines as was made.
“Consent is an act of the will. It need not be written, but may be spoken, or acted, or it may be implied. Volume 15, C.J.S., Consent, page 979, and authorities under note 83.”

Appellee’s contention that his act in dedicating streets and alleys to the public in 1955 did not deprive him of title to pipes and pavement laid in 1958 and 1959, is likewise not well taken. This contention is answered in Moser v. Greenland Hills Realty Co., Tex.Civ.App., 300 S.W. 177, (Writ Ref.). In that case a developer had attempted to reserve ownership of the sewer and other utility lines installed in his addition and the court stated as follows:

“If it be said, however, that, after exhausting this implied power, appel-lee still retained ownership in the sewer system and could sell to whomsoever it pleased the privilege of making connection from the outside, or exercise other acts of ownership and control, it occurs to us that the reservation took from the city control and supervision of the system, and materially interfered with the usual exercise of the police power of its officials. * *
“We are of the opinion, therefore, that the only interest in the sewer mains that was retained by appellant to itself, its successors and assigns, by the reservation contained in the instrument of dedication executed under the circumstances, was the right to connect resident lots of the addition to the system. However, if we should accept the view of the appellee, that the legal effect of the reservation was to retain title to the sewer mains to itself, its successors and assigns, certainly it was stripped of all interest when it parted with title to the lots served by the system, and its power over the subject-matter of litigation was thereby exhausted. Furthermore, the assertion of private ownership over the sewer mains necessarily took from or materially impaired the usual exercise of police power by city authorities over the sewer system and involved the exercise of powers by the corporation in excess of the purpose clause of its charter, and for these reasons we are of the opinion the reservation must be condemned as being in contravention of public policy.”

As hereinbefore indicated Mr. Bass is still the owner of a portion of the lots in the Bassridge Addition. When he filed the plat for this addition, he entered into a contract with the City whereby he agreed to and did install a portion of the water lines in said addition at his own expense and agreed that the water line was to become the property of the City. Bass sought, in this suit, to require the City to extend the water lines in said addition so they will be adjacent to each of the lots therein. The City declined to extend its water lines within the addition contending that the extension of such lines therein was the responsibility of the developer.

The trial court refused to order the City to extend its water lines to the unserved lots. Bass has appealed from this portion of the judgment and contends that the City has a mandatory duty to extend water lines within the subdivision under the provisions of Section 9 of the Home Rule Charter of the City of Snyder which provides as follows:

“By annexing the territory under the provisions of this section, the City of Snyder shall assume an obligation, and from the time of such annexation shall be obligated, to. furnish the facilities of the City, including; but not limited to, water, sewer and street maintenance to the inhabitants of such territory with reasonable diligence, both as to time and as to the extent of such facilities furnished.” ' . ;

The court properly refused to require the City to extend the water line now existing in the Bassridge Addition, although the city has the responsibility to furnish water to the inhabitants of the City. This service is subject to reasonable regulations promulgated by the City. The Charter does not require the - City to furnish all extensions of water mains desired by a property owner, but only to furnish such facilities with reasonable diligence. In the case of Crouch v. City of McKinney, 47 Tex.Civ.App. 54, 104 S.W. 518, the obligation of a city to furnish utility service and extend lines therefor was discussed by the court and it was therein stated that the government of a City is entrusted to its officials selected for that purpose and so long as such governmental affairs are conducted in a reasonably judicial manner, the acts of the officials will not be interfered with. It was indicated concerning the duty of a city to extend water lines that the matter should be left to the sound discretion of the City Council. This matter is also discussed in 48 A.L.R.2d 1224, where it is stated that the majority rule is that a city in such cases has the right to exercise its discretion in a reasonable manner. Also see Gillam v. City of Fort Worth, Tex.Civ.App., 287 S.W.2d 494, (Ref. N.R.E.).

The judgment is therefore affirmed insofar as it refused injunctive relief requiring the City of Snyder to extend its water lines in the manner sought by Bass. The- judgment against the City for $14,329.00 is reversed and judgment rendered in favor of the City.