author: CALVERT, Chief Justice.

text:
    TEXAS & PACIFIC RAILWAY COMPANY, Petitioner, v. Clarence T. McCLEERY, Respondent.
    No. A-11491.
    Supreme Court of Texas.
    July 26, 1967.
    Rehearing Denied Oct. 4, 1967.
    Jackson, Walker, Winstead, Cantwell & Miller, L. P. Bickel and Gerald W. Benson, Dallas, for petitioner.
    Geary, Brice & Lewis, Ray G. Besing, Thompson, Knight, Wright & Simmons, Frank Finn, Jr., Dallas, for respondent.
   CALVERT, Chief Justice.

In an opinion delivered in this case on April 12, we wrote at considerable length in disposing of a contention which we understood respondent to he pressing upon us. In his motion for rehearing, respondent asserts that we misunderstood his contention and disavows the interpretation we placed on his argument. Whether our writing on the question was due to our inability to understand respondent’s argument or to misleading emphasis in which it was cast, is now immaterial; the contention is no longer in the case, and the writing should be eliminated. Accordingly, the opinion delivered on April 12 is withdrawn and the following is substituted therefor.

This suit for damages for personal injuries, brought by Louis D. Hardgrave and Clarence T. McCleery against Texas & Pacific Railway Company, The Southern Pacific Company, and Texas & New Orleans Railroad Company, grew out of a collision between a Texas & Pacific train and a truck operated by Hardgrave in which McCleery was riding as a guest or passenger. The collision occurred at a point where the railroad track crosses South Lamar Street in the City of Dallas. As the case reaches this court, Hardgrave, The Southern Pacific Company and Texas & New Orleans Railroad Company have gone out of the case. The only question to be decided is whether there is in the record evidence of probative force to support a jury finding that operation of the train on the occasion in question at a rate of speed in excess of 12 miles per hour was a proximate cause of the collision.

The case was tried to a jury. In answer to special issues, the jury found Hardgrave guilty of certain negligent acts and omissions which were proximate causes of the collision, but that none of such acts or omissions was the sole proximate cause of the collision. In answer to other issues, the jury absolved The Southern Pacific Company and Texas & New Orleans Railroad Company of any negligent conduct which was a proximate cause of the collision, but found that the Texas & Pacific train was being operated on the occasion in question at a rate of speed in excess of 12 miles per hour, that such operation was negligence and that such negligence was a proximate cause of the collision. The verdict would normally have required a judgment that Hardgrave take nothing against the various defendants, but that McCleery recover his damages as found by the jury from Texas & Pacific. See Dallas Ry. & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379 (1952). However, the trial court disregarded the jury findings of negligence and proximate cause in the operation of the train at a speed in excess of 12 miles per hour and rendered judgment that both Hardgrave and McCleery take nothing by their suits. The court of civil appeals held that there was evidence to support the foregoing jury findings and that the trial court erred, therefore, in disregarding such findings and in rendering a take-nothing judgment against McCleery. Having so held, the court of civil appeals then considered and sustained cross-points of error presented by Texas & Pacific by which it urged that the evidence was factually insufficient to support the findings. The court of civil appeals then severed Mc-Cleery’s cause of action against Texas & Pacific and as to such cause reversed the judgment of the trial court and remanded the cause for a new trial. In all other respects the judgment of the trial court was affirmed. Hardgrave v. Texas & Pacific Ry. Co., Tex.Civ.App., 401 S.W.2d 693. Only Texas & Pacific complains of the judgment. It asks that the judgment in the severed cause be reversed and the judgment of the trial court be affirmed.

By proper points of error Texas & Pacific asserts that the court of civil appeals erred in holding that there is in the record evidence of probative force to support the jury’s findings that operation of its train on the occasion in question at a speed in excess of 12 miles per hour was negligence and a proximate cause of the collision. Evidence bearing on the questions to be decided is set out in the opinion of the court of civil appeals in considerable detail. It will be considered here only in summary.

The collision occurred at about 11:15 p. m. The night was clear and the streets were dry. The train was composed of five engine units and 129 freight cars and was crossing South Lamar Street, traveling from west to east. The truck was approaching the crossing from the south. A wigwag signal was located south of the track. A Dallas city ordinance in force at the time limited the speed of trains in the city to 12 miles per hour. The engineer knew of the ordinance but was operating the train at the time at a speed of approximately 25 miles per hour. The truck ran into the south side of the train while the train was in process of crossing the street. To this point the facts appear to be undisputed.

The engineer testified that he did not see the approaching truck and did not know there had been a collision until he was advised of it by a radio message after the train had left the City of Dallas. He could give no testimony concerning the circumstances surrounding the collision. Mc-Cleery did not see the train approaching or crossing the street. He heard Hard-grave say, “there’s a train,” but remembered nothing of events occurring thereafter until he regained consciousness sometime later in the hospital. Hardgrave was the only eyewitness to the collision, and if evidence is to be found in the record in support of the jury’s findings, it must be found in the testimony of Hardgrave and in reasonable inferences to be drawn therefrom and from testimony and other evidence concerning physical facts. In deciding whether there is such evidence we must honor the well established rule which requires that we view the evidence in its most favorable light in support of the verdict. Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359 (1957).

Viewed most favorably in support of the jury’s findings, the evidence showing the circumstances surrounding the collision may be summarized thusly: The train was moving toward and across South Lamar Street at a speed of 25 miles per hour and the truck was moving toward the railroad track at a speed of 15 to 20 miles per hour. The train began its approach to the crossing at a distance of 1,320 feet. The wigwag signal was activated by the train’s passing over a relay switch located 983 feet west of the crossing. Neither Hardgrave nor McCleery heard a whistle or a bell and neither saw the wigwag signal working.

Obstructions west of the street and south of the track greatly reduced the normal range of vision of both the engineer and Hardgrave; the train should have been visible to Hardgrave and the truck to the operator of the train when the truck was 90 feet from the crossing and the train was 234 feet therefrom. McCleery did not see the approaching train and Hardgrave did not see it until it was “almost on the road.” When Hardgrave saw the lead engine unit, the truck was some 55 to 75 feet from the track. Hardgrave immediately applied his brakes and tried to turn to his right. The front of the truck crashed into the side of the moving train, the truck was spun around with the rear hitting the train and was thrown against a signal post. Skid marks of the truck leading toward the track measured 48 feet. The only evidence of the point of first impact was found on the fifth car behind the engine units. Four of the engines were each 50 feet long, one was 55 feet, and the cars were each at least 40 feet long. There is no evidence that any of the train crew saw the truck at any time.

For purposes of this opinion, we will assume that the finding of negligence is supported by evidence of probative force. The question is thus narrowed to whether there is in the record evidence of probative force to support the finding of proximate cause. The well established law of this State is that proximate cause includes two essential elements: (1) foreseeability, and (2) cause in fact or causal relation. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560 (1961) ; Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352 (1951). From the evidence hereinabove detailed, it is quite clear that the jury could reasonably have inferred that the operator of the train should have anticipated and foreseen injury to motorists approaching and crossing the track on South Lamar Street as a natural and probable result of the excessive speed of the train. Therefore, the question is further narrowed to whether there is evidence of probative force that the excessive speed was a cause in fact of the collision and of respondent’s injuries.

Negligent conduct is, in law, a cause in fact of harm to another only if it is a substantial factor in bringing about the harm. Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352, 355 (1951). Other than in situations in which the conduct of more than one person contributes to the harm, negligent conduct cannot be regarded as a substantial factor in bringing about the harm if the harm would have been sustained even if the actor had not been negligent. Hopson, supra; Radley v. Knepfly, 104 Tex. 130, 135 S.W. 111 (1911); Restatement (Second) of Torts § 432 (1965); 2 Harper & James, The Law of Torts § 20.2 (1956); Prosser, Law of Torts § 41 (3d ed. 1964). The rule is known as the “but for” rule. We recognized the soundness of the rule and applied it to the facts in Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359, 365 (1957). Moreover, the instant case was tried under the rule as is demonstrated by the trial court’s instruction to the jury that “proximate cause,” as the term was used in the charge, meant “ * * * that cause which, in its natural and continuous sequence, unbroken by any new independent cause, produces a result, and without which cause, such result would not have occurred *

Thus the burden was on the respondent to prove by a preponderance of the evidence that the collision would not have occurred but for the excessive speed of the train.

Respondent’s theory for contending that he discharged his burden of proving that the excessive speed of the train was a cause in fact of the collision is based upon the established fact that the train was traveling at the excessive speed at all relevant times prior to and at the time of the collision. From this established fact respondent argues that the jury could reasonably have inferred that: (1) if the train had been moving at . a lawful speed when it tripped the wigwag signal, Hardgrave would have seen the signal sooner and thus would have had an earlier warning of the approach of the train and more time in which to avoid the collision; and (2) if the train had been moving at a lawful speed when it passed the obstructions south of the track, (a) the truck would have been across the track before the train reached the place of collision, (b) Hardgrave would have seen the train sooner and would thus have had more time in which to avoid the collision, and (c) the engineer could and would have seen the truck at a time and distance when he could have avoided the collision by stopping or decelerating the speed of the train.

The inferences which respondent contends the jury could have drawn from the evidence would supply the necessary proof of the element of cause in fact; but the important question is whether the inferences are reasonable.

Traveling at a speed of 25 miles per hour, or 36.7 feet per second, the time required for the train to traverse the 983 feet and reach the street after tripping the signal was 26.8 seconds. Traveling at a speed of 20 miles per hour, the truck was more than 500 feet from the crossing when the signal was tripped, but Hardgrave testified that he did not know whether the signal was working because he “didn’t see it anyway.” If the train had been traveling at a speed of 12 miles per hour, or 17.6 feet per second, 56 seconds would have elapsed between the time the signal was tripped and the street was reached, and the signal would have been operating for an additional 29.2 seconds. But it is unreasonable to infer that one who did not see the signal from 500 feet or a lesser distance would have seen it from a greater distance.

Neither do we think it may reasonably be inferred that had the train been traveling at a speed of 12 miles per hour when it passed the obstructions, the truck would have been across the track before the train reached the place of the collision, or that Hardgrave would have seen the train sooner and would have avoided the collision. As heretofore noted, there is evidence that the point of impact was at the fifth car in the train, a distance of at least 415 feet from the front of the lead engine. Thus at a speed of 25 miles per hour the engine had traveled a distance of 649 feet from the time it passed the obstructions when the collision occurred. During the same period of time, the truck, traveling at a speed of 20 miles per hour, or 29.3 feet per second, traversed a distance of 519 feet in 17.7 seconds. In that same period of time, the train, had it been traveling at a speed of 12 miles per hour, or 17.6 feet per second, would have traversed a distance of 311 feet, and yet would have been blocking the crossing when the truck arrived. But respondent argues that testimony that the point of impact was on the fifth car was discredited and the jury did not have to believe it. The answer to this argument is that the burden was on respondent to prove facts from which the jury could reasonably infer that the truck would have been across the track before the train, traveling at 12 miles per hour, arrived; and if the testimony of point of impact be discarded, there is no proof of facts from which the inference can reasonably be drawn.

It is undoubtedly true that Hardgrave would have had more time in which to see the train after it emerged from behind the obstructions if it had been traveling at a slower speed, but his own testimony negatives any reasonable inference that he would have done so in time to avoid the collision. The train was visible at all times after it emerged from behind the obstructions at a distance of 234 feet from the street, and yet Hardgrave’s own testimony is that he did not see the train until it “loomed up in front of” him, was “just right at the road,” was “almost on the road,” was “almost on” him, and was “just right on” him. If he was not keeping a lookout with enough care to detect the presence of the train until it was right on him, it is not reasonable to infer that he would have used more care if the train had been traveling at a lesser speed.

Whether the jury could reasonably have inferred that the engineer could and would have seen the truck if the train had been traveling at a speed of 12 miles per hour when it was 234 feet from the crossing is a more difficult question. The jury did not have to believe the testimony of the engineer that he never saw the truck; but rejection of the testimony does not supply evidence that he did see it, or that he would have seen it if the train had been moving at 12 miles per hour. When the circumstances in evidence are sufficiently strong, a jury may reasonably infer that a train operator saw a person approaching, or on, or near the track, in spite of his testimony that he did not do so. See Brown v. Griffin, 71 Tex. 654, 9 S.W. 546 (1888). Cf. Creech v. Thompson, 156 Tex. 561, 297 S.W.2d 817 (1957). But the circumstances disclosed by the evidence in this case — obstructed view, etc. — are such that to infer that the engineer would have seen the truck in time to have avoided the collision if the train had been traveling at a speed of 12 miles per hour would be pure speculation.

We hold that none of the inferences suggested by the respondent may reasonably be drawn from the evidence, and thus that respondent did not discharge his burden of proving that the excessive speed of the train was a cause in fact of the collision and respondent’s injuries; that is, there is in the record no evidence of probative force that but for the excessive speed the collision would not have occurred.

Having held that none of respondent’s suggested inferences can form a sound basis for the jury findings upon which liability of Texas & Pacific must be predicated, we must look to the briefs of the parties in the court of civil appeals to see if the judgment of that court reversing the judgment of the trial court and remanding the cause for a new trial can be affirmed on any other ground. Walker v. Texas Employers’ Ins. Ass’n, 155 Tex. 617, 291 S.W.2d 298 (1956). Respondent presented a point of error in the court of civil appeals asserting that the judgment of the trial court should be reversed and the cause remanded because of refusal of the trial court to submit issues to the jury inquiring whether the trainmen failed to keep a proper lookout and whether such failure was a proximate cause of the collision. We hold that the trial court did not err in refusing to submit the issues. The failure of the trainmen to see the truck when it was visible at all times after the train was within 234 feet of the crossing raised an issue of failure to keep a proper lookout, but there is no evidence that such negligence was a proximate cause of the collision. Considering the speed of the train, the reaction time for applying the train’s brakes, the distance to be traveled and the absence of evidence of rate of deceleration of a train of the same type when traveling at a-speed of 25 miles per hour, we hold that there is in the record no evidence from which the jury could reasonably have inferred that but for the failure of the trainmen to keep a proper lookout the collision would not have occurred.

The judgment of the court of civil appeals in this severed cause is reversed and the judgment of the trial court is affirmed. Respondent is granted fifteen days from this date in which to file an additional motion for rehearing.

      . Emphasis added.


source: Caselaw Access Project

author: HAMILTON, Justice.

license: Public Domain

text:
    The STATE of Texas, Petitioner, v. Rudolph ZARUBA et al., Respondents.
    No. A-11765.
    Supreme Court of Texas.
    July 26, 1967.
    Rehearing Denied Oct. 4, 1967.

      Crawford C. Martin, Atty. Gen., Woodrow Curtis, Asst. Atty. Gen., Austin, for petitioner.
    Zbranek & Friend, J. C. Zbranek, Liberty, for respondents.
   HAMILTON, Justice.

This is a condemnation case. The State took an easement over a strip of land five feet in width across the front of Zaruba’s property. The trial court entered judgment for respondents on a jury verdict for $14,500. The Court of Civil Appeals affirmed. 406 S.W.2d 765.

Zaruba’s tract of land was 100 feet by 100 feet in size. His residence was located toward the rear of the property. That portion fronting on State Highway No. 321 contained a small food market, a tavern and a storage garage, all contiguous to each other and using almost the entire frontage. These buildings were so situated that the market was nine feet and the tavern was three feet from the existing highway right of way. The garage was placed on an angle at one end of the property. A sidewalk extended some four feet from the food market toward the edge of the right of way. With the buildings so situated Zaruba’s customers were able to park their automobiles perpendicular to the highway by using a portion of Zaruba’s land and a portion of the highway right of way.

Before the taking of the five foot strip, had the State prevented Zaruba’s customers from parking on the highway right of way, Zaruba could have provided a space nine feet wide for his customers to park parallel with the highway by cutting the tavern back even with the market and tearing out the sidewalk. The five foot strip taken includes about two feet off the front of the tavern and about four inches off the sidewalk in front of the market. It is evident that if the State should prevent Zaruba’s customers from parking on the enlarged right of way there would be no room to provide parallel parking. That circumstance is the genesis of this controversy.

At the trial the jury found that the market value of the easement condemned by the State was $500; that the market value of Zaruba’s tract of land, exclusive of the strip taken, immediately before the taking was $30,000, and that the market value of the remainder immediately after the taking was $16,000. Accordingly, the trial court awarded the State title to an easement across the five foot strip, title to all improvements situated thereon, and awarded respondents damages in the amount of $14,500.

The Court of Civil Appeals held that evidence showing the cost of moving and reconstructing the tavern, storage garage and market because of the loss of the space which could have been used as parking was admissible as affecting the market value of the remainder of the land and improvements and the uses for which they were adapted and were being used. That Court also overruled the State’s contentions that there was no evidence to support the jury’s verdict on the value of the remainder before and after the taking, and that these answers were so contrary to the evidence as to be manifestly unjust or clearly wrong.

Petitioner’s points of .error before this Court assert that there is no evidence to support the answers of the jury regarding the market value of the remainder before and after the taking, and that the testimony regarding the cost to reconstruct the buildings was not evidence of compensable damages.

Petitioner contends among other things that there is no evidence to support the answer of the jury that the market value of the remainder before the taking was $30,000. The only testimony which could possibly support this finding comes from Zaruba himself. He testified that he had lived in the area for 54 years, all of his life, and that he was familiar with the value of land and business property in that area. He was asked:

“Q. Based upon ' your knowledge of land values in the community, do you have an opinion on what your property is worth, and consider in this opinion your land and your improvements and your business.
“A. I say $40,000.00.
“Q. All right, sir. Now, how would you divide that with respect to your residence and your business?
“A. Well, I say the house is $10,000.00 and the business is [$30,000.00].”

Zaruba then testified that after the five foot strip was taken off his property, “for the business it won’t be worth nothing,” because “nobody won’t be able to park.” He further stated that in his opinion the value of the five foot strip taken was $500.

On cross examination the following testimony was elicited:

“Q. I believe you stated that in your opinion the market value of all of your land and improvements on December 18, 1964, was $40,000.00.
“A. Yes, sir.
⅜ ⅝ ⅝ j}c ⅝ ‡
“Q. So you figure $3500.00 then would be the value of the land out of the $40,000.00. So that would be $36,-500.00 * * * then for the residence and the business improvements, and I believe you stated that in your opinion the residence was worth $10,000.00.
“A. Yes.
“Q. So the residence deducted from that would leave $26,500.00. That is your testimony on the value of all improvements except your residence.
“A. Yes.
« ⅝ * *
“Q. * * * How did you arrive at the total of $26,500.00?
“A. We just judge according to what it was valued to us or anybody else if they wanted to buy it, that is what it would be worth. The business, 20 years service there, it is kind of hard to break that in pieces. I couldn’t explain it to you. I have to look back 20 years of hard labor.
“Q. Could you give me your best estimate of about what the store would be and about how much the tavern would be, what part of the $26,500.-00 would the store be and which part would the tavern be?
“A. I couldn’t answer that.
“Q. In other words, you don’t know how you arrived at the $26,500.00, is that it?
“A. I couldn’t say it over all. Over all we know what it is worth but I couldn’t break it up in pieces like that. It is kind of hard. For little odds and ends you can say hut when it gets in the business like that, that is kind of hard to do.
“Q. Is this figure of the improvements of $26,500.00, did you figure that as what it is worth to you ? Is that the basis you used for figuring that?
“A. That’s right. To somebody else it probably ain’t worth $10,000.00 and to the next one it would be worth $50,000.00 and to us it is worth $30,000.00, the business. The next one probably wouldn’t have it.
“Q. That is what it is worth to you and Mrs. Zaruba?
“A. That is where I started when I fell out of a derrick, from scratch, trying to make a living.”

Zaruba further called a building contractor as a witness who testified that it would be impossible to move the store, tavern and storage garage back without first tearing them down. He testified that it would cost $14,193.00 to tear the improvements down, move them back and reconstruct them. The contractor’s estimate included the utilization of new building materials.

Zaruba contends that the foregoing evidence will support the jury finding that the value of the remainder of his property before the taking was $30,000.00, because $40,000.00 less $500.00 is $39,500.00, of which $30,000.00 was “for the business” which had no value after the strip was taken, but which could be restored to its full utility for something over $14,000.00.

We disagree. The finding of the jury must be upheld if there is in the record before us evidence of probative value which, with the reasonable inferences therefrom, will support it. We may consider only that evidence, if any, which, viewed in its most favorable light, supports the finding, and we must disregard all evidence which would lead to a contrary result. Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359 (1957).

Both petitioner and respondent treat the taking of the five foot easement the same as a taking of the entire fee, at least as far as market value is concerned. Even so, the fact that Zaruba testified in effect, that in his opinion the remaining property was worth $39,500.00 before the taking will not necessarily support the jury finding. In Texas Electric Service Company v. Line-bery, 162 Tex. 570, 349 S.W.2d 105 (1961) this Court held that testimony of a witness as to the value of the land taken and the before and after value of the remainder of the tract would not support the jury findings when his opinion was based upon the amount of income received from the sale of right of way over the premises for the construction of roads, pipe lines, overhead easements, the sale of water, and the sale of caliche:

“Such testimony at best constituted an attempt to treat the sale of easements and the like as something in the nature of rents and then capitalize such income (highly uncertain in this case) and arrive at an estimate of market value. Such testimony does not support an opinion of market value.” 349 S.W.2d at 106.

Zaruba’s testimony will not support the $30,000.00 finding upon the same analysis. When land occupied for business purposes is taken by eminent domain, the damage to the established business or what is called “good will” is not com-pensable as a separate and independent item of recovery. City of Dallas v. Priolo, 150 Tex. 423, 242 S.W.2d 176 (1951). We conclude from Zaruba’s testimony that he included the value of his business as a “going concern” or “good will” in valuing the whole of his property before the taking. This is evident from the fact that his valuation of “the business” at $30,000.00 is some $15,000.00 higher than the cost to rebuild anew, and his valuation at $26,500.00 is some $12,000.00 higher than the same cost. His testimony is replete with references, emphasized in the testimony quoted above, to his business as a separate entity. Since his opinion was founded on an improper measure of valuation it is of no probative force, and, as in the Linebery case, supra, it will not support the jury finding.

In City of Dallas v. Priolo, supra, we held that where the ownership of land, improvements and business conducted thereon are in the same person, evidence of resulting injury to the business is admissible, not as a separate item of damage, but as affecting the market value of the remaining land and improvements for the uses to which they were adapted and were being made. Priolo involved the taking of parking facilities from business property. Testimony of market value based in part upon future loss of business as a result of the loss of parking space was held to be admissible. However, the witness testified further that the amount of business has considerable bearing on the rent that a tenant would pay, and that rental value is an element in fixing market values; that the income was a basis for valuation; and that the theory of replacement value and depreciation would result in the same figures, since it would become necessary to depreciate the value of the remaining land and building a great deal more because the land and building would sell for less with no parking space in front.

Here the value of the business improvements completely reconstructed with new material, together with the value of the entire parcel of land is $17,693.00, according to Zaruba and his expert witness. Since Zaruba’s opinion that his “business” is worth either $30,000.00 including the land, or $26,500.00 without, bears such an unreasonable relation to the value ascribed to the business improvements by his own expert witness, we conclude that he included the value of his established business or “good will” as an element of market value. Since Zaruba’s opinion is based upon a consideration of an improper element of market value which substantially affects that value, his testimony will not support the jury finding of $30,000.00 market value of the remaining property before the taking.

Since this case will have to be remanded for a new trial we shall consider certain other assertions of error. The testimony regarding the cost of reconstructing the business improvements was introduced on the theory that the taking of the easement rendered these improvements worthless, which caused a depreciation in the value of the property remaining which could be minimized by reconstructing the improvements 25 feet back. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 89 S.W.2d 979, 980-981 (1936), held that if improvements which are situated upon the portion of land taken are essential to the use and enjoyment of the remainder of the land, or if their replacement, by removal or reconstruction is necessary in order to obviate depreciation in the value of the residue, the cost of removal, reconstruction or replacement may be a proper inquiry in connection with the issue of diminished market value of the remainder. A similar rule obtains where the improvements situated on the residue are rendered obsolete or valueless by the taking. The cost of reconstruction or removal may be properly considered in determining the depreciation of the remainder if the difference between the market value before and after the taking would exceed such cost of reconstruction or removal.

We reverse the judgments of the trial court and the Court of Civil Appeals and remand the cause for a new trial.


author: STEAKLEY, Justice. GREENHILL, Justice.

text:
    J. H. BRUNSON et ux., Petitioners, v. The STATE of Texas et al., Respondents.
    No. B-76.
    Supreme Court of Texas.
    July 26, 1967.
    Rehearing Denied Oct. 4, 1967.

      Mahoney, Shaffer & Hatch, Richard J. Hatch, Corpus Christi, for petitioner.
    Fischer, Wood, Burney & Nesbitt, James R. Harris, Corpus Christi, Crawford Martin, Atty. Gen., Woodrow Curtis, Asst. Atty. Gen., Austin, Sorrell, Anderson, Porter & Stone, William R. Anderson, Jr., Corpus Christi, for respondent.
   STEAKLEY, Justice.

This appeal from a summary judgment for the State, affirmed by the Court of Civil Appeals, 410 S.W.2d 9, requires a determination of whether a judgment in a condemnation proceeding awarding the State an easement for highway right-of-way purposes, and fixing the compensation to be paid the landowners, includes title to permanent improvements located thereon about which the judgment is silent. We hold that it does not.

The problem reaches us in this manner. On May 10, 1962, the State of Texas, Respondent, and Nueces County, initiated condemnation proceedings against J. H. Brunson and wife, Petitioners, and others not pertinent here, for the stated purpose of occupying certain land of Petitioners for right-of-way purposes in widening Highway Number 358. Special commissioners were appointed pursuant to Art. 3264 who subsequently awarded Petitioners the sum of $14,308.00 as damages sustained by Petitioners “by reason of the taking of said easement.” Petitioners filed timely objections to the award and pursuant to Art. 3268 the State deposited the award sum of $14,308.00 in the registry of the county court. The award was withdrawn by Petitioners. Thereafter, the county court of Nueces County entered judgment finding “that the State of Texas should be awarded the easement herein sought for highway right-of-way purposes” and awarding Petitioners the sum of $14,308.00 as “damages for such right-of-way easement.” This judgment has become final.

There was located on the property over which the right-of-way easement was obtained certain permanent improvements consisting of a trailer house, cabana, and other related items. The condemnation judgment is silent as to their disposition and the record in the county court hearing is not before us. Petitioners removed the improvements subsequent to the judgment of the county court, whereupon the State filed this suit against Petitioners alleging the acquisition of title to the improvements and that Petitioners had converted them to their own use to the damage of the State in the sum of $3,227.00. Shortly after filing the suit, the State recovered possession of the improvements under a writ of possession issued out of the county court and reduced its damage claim to $327.00.

Petitioners filed a cross action against the State and Respondents Harry W. Coon and T. O. Foster, Jr., the agents and employees through which the State acted, alleging conversion of the trailer house and related items, and seeking a joint and several judgment for damages; there was also a damages count against Respondent Coon for an alleged slander of Petitioners. The motions for summary judgment of the Respondents, the State, Coon and Foster, against the cross action of Petitioners were granted by the trial court. The action of the trial court in such respects was brought forward by proper points in the appeal of Petitioners to the Court of Civil Appeals. In their points of error here, however, following affirmance of the judgment of the trial court, Petitioners present only the points copied in the footnote which do not bring forward for review the action of the Court of Civil Appeals in affirming the trial court judgment granting the motions for summary judgment of Respondents Coon and Foster.

Article 6674w-3 authorizes the State through the State Highway Commission to purchase and condemn for highway construction purposes any land in fee simple title, or any lesser estate or interest therein, with certain exceptions not relevant here. The State elected to condemn a lesser estate in the nature of a right-of-way easement over Petitioners’ land. The easement thus acquired carried with it the right of the State to remove any improvements on the land which would interfere with the full and beneficial use of the easement rights but did not take away the subsisting ownership of the landowner in the improvements and his right to remove them. In Texas Power & Light Co. v. Cole, 158 Tex. 495, 313 S.W.2d 524 (1958) the utility sued to condemn an easement and by an amendment to its petition relinquished until a special date its easement rights to interfere with the sand and gravel mining operations of the landowner. In holding this to be a permissible arrangement we said: “The petitioner [condemnor] under the original easement or the amendment thereto never acquired any rights to the gravel upon the property, but the respondents at all times remained the owners thereof.” See also Odum v. Rutledge & J. R. Co., 94 Ala. 488, 10 So. 222, 223 (1891), stating that the easement condemnor “had the right to remove all buildings or constructions located upon its right of way, or which interfered with its use; but the property interest in such building or improvement remained in the owner, subject to the right of the company [condemnor] to have them removed.” See also 2 Lewis, Eminent Domain § 853, p. 1490.

This recognition that in an easement taking title to the land and its appurtenances remains in the landowner comports with the rule stated in 3 Nichols on Eminent Domain § 9.2[5] (1965):

“Where the fee simple absolute title to land has been acquired the condemnor acquires all appurtenances thereto, buildings thereon, minerals lying beneath the surface, waters thereon * * *.
“Where only an easement is acquired the owner retains title to the land and all that is ordinarily considered part of the land.”

Cf. Burgess v. City & County of Dallas Levee Imp. Dist, 155 S.W.2d 402 (Tex. Civ.App.1941), error ref. w. o. m. See Heyert v. Orange & Rockland Utilities, Inc., 17 N.Y.2d 352, 271 N.Y.S.2d 201, 218 N.E.2d 263 (1966); Thompson v. Orange & Rockland Elec. Co., 254 N.Y. 366, 173 N.E. 224 (1930); and Shields v. Norfolk & C. R. Co., 129 N.C. 1, 39 S.E. 582 (1901).

If we correctly apprehend the basic position of the State, and the underlying rationale of the Court of Civil Appeals, it is that if acquisition by the State of title to the permanent improvements does not follow from the judgment awarding the easement and damages, standing alone, such does follow from parol proof that Petitioners claimed compensation for the improvements before the special commissioners and failed to show a contrary claim in the hearing on appeal to the county court. This appears to rest upon the reasoning that an easement condemnor will be held to have acquired, and the award of damages to have included, title to the permanent improvements located on the easement right-of-way if the landowner does not establish an agreement or special arrangement with the condemning authority that such will not be the case, which in turn must be implemented by corresponding provisions in the condemnation judgment. It is correct, of course, that the parties to an easement condemnation may agree upon the disposition of permanent improvements which may he involved and upon a corresponding basis for payment of compensation. It has also been held that the condemnor may under circumstances of non-prejudice to the landowner diminish the extent of the easement taking and thereby reduce its cost. See Texas Power & Light Co. v. Cole, supra. But it should be the burden of the condemning authority to have its judgment speak expressly of special arrangements or provisions in the easement taking; otherwise, the ownership of the landowner in improvements which are a part of the realty, and his right to remove them, will be enforced. Here the judgment is clear and unambiguous in its terms. It does no more than award the State the easement which it sought for right-of-way purposes over the land of Petitioners and fixes the amount of the damages therefor. The judgment is not subject to impeachment or collateral attack by the tendered proof of the stance of the parties before the special commissioners or of other collateral matters. We said in Hopkins v. Cravey, 85 Tex. 189, 19 S.W. 1067 (1892): “The tribunal established by the constitution to try the question of compensation having done so, its judgment is final, there being no appeal, and it cannot be attacked in this collateral suit. Const. Art. 5 fl 18.” Hopkins denied the affected landowner the right to question an award of damages in a collateral proceeding; the same rule is applicable to the condemning authority. See also Jackson v. City of Abilene, 281 S.W.2d 767 (Tex.Civ.App.) error ref. n. r. e. 1955; Taylor v. Tod, 185 S.W.2d 772 (Tex.Civ.App.) error ref. w. o. m. 1945, and cases cited. The rule is stated in 6 Nichols, Eminent Domain § 26.72 (rev. 3d ed. 1965) :

“Once a final judgment of condemnation has been entered, such judgment cannot be attacked collaterally in any other form of action, except for lack of jurisdiction, fraud, or where such judgment is otherwise void. Such judgment is protected, when collaterally attacked, by the same presumptions of regularity which apply to judgments generally.”

There is the final problem of the proper disposition of the cause in the light of the appellate record before us. As before noted, Petitioners did not bring forward for review the affirmance by the Court of Civil Appeals of the sustainment by the trial court of the motions for summary judgment of the Respondents, Harry W. Coon and T. O. Foster, Jr., and this action has become final. The motion for summary judgment of Petitioners on their cross action against the State for damages, which was denied by the trial court, was limited in terms to a motion for a “partial summary judgment” with the question of damages to be later determined.

We accordingly sever into one cause of action the suit of the State against Petitioners for damages for the alleged conversion of the trailer house, and related items; as to this cause we reverse the judgment of the Court of Civil Appeals and that of the trial court overruling the motion for summary judgment of Petitioners, and here render judgment for Petitioners that the State take nothing.

We sever into another cause the cross action of Petitioners against the Respondents Harry W. Coon and T. O. Foster, Jr., and with respect thereto affirm the judgments below.

We sever into a third cause the cross action of Petitioners against the State and reverse the judgments below and remand the cause to the trial court for further proceedings consistent with this opinion.

SMITH and GREENHILL, JJ., dissenting.

DISSENTING OPINION

GREENHILL, Justice.

I respectfully dissent. I agree with the opinion of the Court of Civil Appeals, 410 S.W.2d 9.

      . All references are to Vernon’s Annotated Civil Statutes.

      . “First Point of Error: The Court of Civil Appeals erred in considering evidence presented before the special condemnation commission.
      “Second Point of Error: The Court of Civil Appeals erred in allowing the trial court to consider the evidence presented before the special condemnation commission by its failure to strike the state’s exhibits and affidavits based on the same.
      “Third Point of Error: The Court of Civil Appeals erred in holding that the state of Texas acquired title to permanent improvements situated on the easement granted the state over and across Brunsons’ property.”


author: ONION, Judge.

text:
    Alvin Darrell SLATON, Appellant, v. The STATE of Texas, Appellee.
    No. 40358.
    Court of Criminal Appeals of Texas.
    June 14, 1967.
    Rehearing Denied Oct. 4, 1967.

      Phil Burleson (on appeal only), Fred D. Moore, Dallas, for appellant.
    Henry Wade, Dist. Atty., Robert H. Stin-son, Jr., Scott Bradley and James M. Williamson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Possession of a Narcotic Drug, to wit: Fentanyl; the punishment, assessed by the jury, confinement in the Texas Department of Corrections for forty (40) years.

In his first ground of error, appellant vigorously challenges the sufficiency of the evidence to support the jury verdict of guilty. Appellant points out that he was not present at the time of the search of the apartment during which the narcotic was found, and that no narcotic was found on his person at the time of his arrest.

Acting upon information received by telephone, certain narcotic officers of the Dallas City Police set up a surveillance of an apartment at 5513½ Bryan Parkway on Monday, December 13, 1965. The part time surveillance continued until appellant’s arrest on Thursday, December 16, 1965. The officers did not see appellant at the apartment on Monday, but observed his arrival on Tuesday and Wednesday evenings at approximately 8:30 or 9:00 o’clock in the company of one Johnnye Edwards, a twenty-three year old woman. On both such evenings, the officers remained at their vantage points until after the lights went out in the apartment. The officers returned early Thursday morning, December 16th, and observed that appellant’s automobile had not been moved from the position which they had observed it parked on the evening before. Further investigation revealed the automobile was covered with dew and frost and the motor was cold. On this same date, the officers received further information from an informer and secured a search warrant for the said apartment.

At approximately 8:30 P.M. that Thursday, six police officers executed the search warrant. Appellant was not present at the time. At the apartment the officers found Mary Slaton, the fifteen year old wife of the appellant and Johnnye Edwards. A search of the premises revealed various items including a number of hypodermic syringes and needles, assorted barbiturates, and a blue suitcase containing “dangerous drugs”. In the bedroom closet, the officers discovered a man’s sport coat. In the pocket of the coat, phenobarbital and apomor-phine were found, and in addition, a drug later established to be fentanyl, the subject matter of this prosecution. The officers also found in the apartment two shotguns and a pistol, a nursing book with appellant’s name thereon, and appellant’s badge or nameplate with the additional word “Radiology”. The nursing book contained appellant’s marriage license and a photograph of appellant at a nightclub wearing a sport coat. Other clothing for a man was observed stored in the apartment and there were letters found addressed to appellant (at another address).

Shortly after the two females and the items seized were taken to the police station by some of the officers, appellant arrived and parked his automobile at the rear of the apartment building. As his two companions, Judy Smith and Seth Patterson, Jr., started up to the apartment with groceries, one of the officers went to the automobile where appellant was standing and placed him under arrest. The arresting officer testified that at the time appellant said to him, “You mean you are searching our apartment? Well, I’ll tell you one goddam thing, if I had been there you would have never gotten in the door. I would have blown your head off.” The officer expressed the opinion that at the time of the arrest, appellant was “high” on narcotics and had needle marks on his arms. A search of the appellant’s person and automobile revealed no narcotics.

The sport coat and photograph found in the apartment were introduced into evidence. Officer Vaughn, who found the coat, was permitted, over objection, to identify appellant in the photograph and to express the opinion that the coat appellant was wearing in the picture, “looks like the very same coat to me”, as the coat found in the apartment containing fentanyl.

On the issue of guilt or innocence, appellant did not testify, but called several witnesses on his behalf.

Judy Smith, aged sixteen, whose testimony was not always consistent, revealed that she and Johnnye Edwards, the appellant and his wife lived for a month or more in an apartment on Lewis Street in Dallas; that approximately a week before appellant’s arrest that the three women rented the apartment at Bryan Parkway and moved without the knowledge of the appellant, even though they used his car in such move; that appellant learned where they had moved when the car was returned “and he came over there.”; that they had moved because they had been evicted from the Lewis Street apartment; that they may have had a few of the appellant’s clothes with them when they moved; that at the time of the arrest, appellant had some of his clothes in his car; that at the time of his arrest, appellant may have been “high” on barbiturates but not on narcotics.

She did not know how the “drugs” got into the apartment, but testified appellant knew they were there and tried to get rid of them. She denied that the coat belonged to any one of the three women or that she had seen any man bring the coat into the apartment. While not sure, she believed she had seen the appellant wear the coat in question. She identified appellant in the above mentioned photograph as wearing the coat in question. On re-direct examination, she modified her answer and testified that she did not know “for a fact” it was the same coat as depicted in the photograph. Judy further testified no other man lived at the apartment.

Mary Slaton, the fifteen year old wife of the appellant, who at the time of the trial had had her marriage annulled and was at that time residing at a juvenile home, testified she had married the thirty-three year old appellant on September 23, 1965; that the marriage was one of convenience; that they had had no marital relations as a result of their agreement; that the purpose of the marriage was to prevent her from having to return to an orphan’s home.

She gave a somewhat similar account as to the move from the Lewis Street apartment as Judy Smith. She did testify that appellant did not move with the three women and had never moved to the Bryan Parkway apartment. She admitted, however, he did spend two nights at such apartment immediately before his arrest. She identified the blue suitcase as hers, but denied knowing any drugs were contained therein.

The State offered evidence that four days before the appellant’s arrest, the Dallas City Police, in response to a call, had gone to the Lewis Street apartment of the appellant which they found empty and unoccupied. At the time, a real estate agent turned over to them a quantity of drugs found in said apartment.

The record is replete with evidence, mostly offered by the appellant, that he had been for some time a user of narcotics.

The chain of custody of the fentanyl was established by stipulation, and Dr. Morton F. Mason testified that fentanyl, with its morphine like properties was a narcotic drug whose trade name was Innovar. He further revealed that fentanyl had not been approved for human use by the Food and Drug Administration, but it had been released to veterinarians for use on animals.

The case was submitted to the jury under a charge on circumstantial evidence and a proper charge on “possession”. Massiate v. State, Tex.Cr.App., 365 S.W.2d 802, 803.

Under this testimony, appellant would have us apply the rule that in a circumstantial evidence case where the evidence shows an opportunity of another or others to possess the narcotic alleged to be possessed by the accused, the State’s case, to be sufficient, must disprove the outstanding hypothesis that such other person and not the accused possessed the narcotic. He cites and relies upon Brock v. State, 162 Tex.Cr.R. 339, 285 S.W.2d 745 and Martinez v. State, 170 Tex.Cr.R. 266, 340 S.W.2d 56.

The evidence here shows that the appellant, a known user of narcotics and a male nurse when employed, was the only man living at the apartment. He was the only man whose possessions were found on the premises. He was shown to have known “the drugs” were there and wanted to get rid of them. Judy Smith denied that the fentanyl was hers or Johnnye Edwards’. Appellant’s wife denied having ever seen the fentanyl or even knowing any drugs were on the premises. There was no evidence before the jury that any of the three women were users of narcotics or that their arms bore needle marks, though Judy Smith admitted using a barbiturate. The man’s sport coat in which the fentanyl was found did not belong to the three women living at the apartment nor were they ever seen in possession of it. No other person was seen bringing male clothing to the apartment. Judy Smith testified she believed she had seen the appellant wear the coat in question and on cross-examination, she, like Officer Vaughn, identified the photograph found in the search as being one of appellant wearing the coat in question.

We conclude that the facts stated in conjunction with other circumstances clearly distinguish this case from those cited and relied upon by appellant wherein the rule he urges was applied. Palma v. State, 159 Tex.Cr.R. 151, 261 S.W.2d 589; Bomar v. State, 172 Tex.Cr.R. 307, 356 S.W.2d 931, (which also distinguished Brock v. State, supra, cited by appellant).

See also Sewell v. State, 170 Tex.Cr.R. 550, 342 S.W.2d 579; Tomlin v. State, 170 Tex.Cr.R. 108, 338 S.W.2d 735; King v. State, 169 Tex.Cr.R. 34; 335 S.W.2d 378; Watson v. State, 164 Tex.Cr.R. 593, 301 S.W.2d 651.

The evidence viewed in light most favorable to the verdict of the jury is sufficient to sustain the conviction.

In his second ground of error, appellant complains of evidence introduced by the State, at the separate hearing on punishment, concerning appellant’s prior 1950 conviction for robbery in the State of Oklahoma at the age of sixteen years. There was no showing made as to what the laws of Oklahoma were in regard to juvenile offenders or in regard to prosecutions of a minor for a felony in 1950. In absence of such showing, appellant, citing Green v. State, 165 Tex.Cr.R. 46, 303 S.W.2d 392, 393, contends that the assumption must be made that such laws are the same as in Texas, and in this State, an adjudication that one was a juvenile delinquent cannot be used as a part of one’s prior criminal record at the separate hearing on punishment.

Appellant is correct in his contention ; however, we observe that on the hearing of guilt or innocence, appellant introduced a historical resume of appellant’s past obtained from the Medical Center for Federal Prisoners, Springfield, Missouri. Such résumé not only reveals a federal conviction, but the details of appellant’s commitment to Oklahoma State Penitentiary at age sixteen. The appellant having opened the door on the hearing of guilt or innocence cannot complain because the door was still open at the separate hearing on punishment. We further note that a felony conviction of a sixteen year old Texas defendant is not void. Taylor v. State, 172 Tex.Cr.R. 45, 353 S.W.2d 422 and cases therein cited.

Appellant’s second ground of error is overruled. 5 Tex.Jur.2d, Sec. 409, pp. 611, 612.

Appellant’s next contention is that he was deprived of his constitutional rights by the failure of the State to reveal to him the name of the informer who supplied the information leading to the procurement of the search warrant. There is no showing in the record that appellant gave a reason for or demonstrated any necessity which would have justified revealing the identity of the unnamed informer. Bosley v. State, Tex. Cr.App., 414 S.W.2d 468; Acosta v. State, Tex.Cr.App., 403 S.W.2d 434; Thayer v. State, Tex.Cr.App., 397 S.W.2d 236; Artell v. State, Tex.Cr.App., 372 S.W.2d 944. See also McCray v. State of Illinois, 386 U.S. 300,87 S.Ct. 1056,18 L.Ed.2d 62.

A number of appellant’s grounds of error relate to the search warrant. In one he contends there is a material variance between the affidavit and the search warrant and that said affidavit does not show probable cause. Appellant, however, fails to point out any such variance, material or otherwise, and the record does not support his conclusion. As to probable cause, it is observed that in their affidavit for a search warrant on December 16, 1965, Officers R. T. Diaz and B. T. Zapata, who had been conducting a surveillance of the Bryan Parkway apartment, swore that they had that day received information from a confidential informant whose past information had proven to be true and correct to the effect that the informant had been within the said apartment within the last twenty-four hours and had seen appellant inj ecting a liquid substance in his veins and had observed needles and syringes, and partially filled vials labeled “Demerol”, “Morphine”, and “Cocaine”. The officers further swore that of their own knowledge appellant had previously been convicted for a violation of the State narcotic laws. We conclude that sufficient facts were presented to the magistrate to establish that probable cause did exist for the issuance of a search warrant. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

Appellant’s contention is overruled.

Appellant next complains it was error for Officer Vaughn to invade the province of the jury by giving his conclusion that the man’s coat found at the apartment looked like the one the appellant was wearing in the photograph.

In Romans v. State, 153 Tex.Cr.R. 474, 220 S.W.2d 891, it was appellant’s contention that whether or not the buttons on the shirt and those found on the ground at the scene of the assault were alike was an issue of fact for the determination of the jury and not the Sheriff who so testified. There the Court said:

“On original submission we agreed with appellant, but on a more careful review of the authorities on the subject, we find we were in error. Tex.Jur. Vol. 19, p; 378, states the rule to be as follows: ‘The opinions of ordinary observers are admissible on questions of identity, whether the identity be of persons, animals, or things, or even that of a corporation.’ ”

See Tex.Jur.2d, Vol. 23, p. 688, Section 479.

It is further observed that Judy Smith, a witness for appellant, testified without objection to the same subject matter and identification as Officer Vaughn, both on cross and re-direct examination. Appellant is in no position to complain because the same or similar testimony was introduced without objection. 5 Tex.jur.2d 704, Sec. 446; Love v. State, Tex.Cr.App., 373 S.W.2d 242.

Appellant’s contention is overruled.

The judgment is affirmed.


author: MORRISON, Judge. WOODLEY, Presiding Judge. ONION, Judge.

text:
    Johnnie Thomas JAMES, Appellant, v. The STATE of Texas, Appellee.
    No. 40312.
    Court of Criminal Appeals of Texas.
    May 3, 1967.
    On Rehearing June 28, 1967.
    Rehearing Denied Oct. 4, 1967.
    C. A. Droby, Jim Martin, Dallas, Emmett Colvin, Jr., Dallas (on appeal only), for appellant.
    Henry Wade, Dist. Atty., Douglas Mulder and James M. Williamson, Asst. District Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is fondling; the punishment, 25 years.

Trial was had and notice of appeal given subsequent to January 1, 1966.

In his brief filed in the trial court appellant first contends that it was reversible error for the trial court to allow testimony of extraneous offenses committed by appellant against those other than the prosecuting witness.

Two sisters of the prosecuting witness testified that appellant committed acts of fondling on them in his home on the same occasion as the offense charged in the indictment. The separate acts were committed in the presence of the prosecuting witness and one or the other sister, though committed in a bedroom with the door closed while the others were in the living room. This testimony was admissible as part of the res gestae. Tennel v. State, 78 Tex.Cr.R. 400, 181 S.W. 458; Bowles v. State, 156 Tex.Cr.R. 548, 244 S.W.2d 811; Gephart v. State, 157 Tex.Cr.R. 414, 249 S.W.2d 612; Botello v. State, 161 Tex.Cr.R. 207, 275 S.W.2d 814; Bills v. State, 168 Tex.Cr.R. 369, 327 S.W.2d 751.

A sister of the prosecuting witness testified that appellant had committed acts of fondling her in his home, when the prosecuting witness and a brother were present, two days prior to the act charged in the indictment. Such testimony was admissible to show the probability of the charged act and the unnaturalness of the accused’s attitude toward the victims of his lust. Lozano v. State, 159 Tex.Cr.R. 613, 266 S.W.2d 147; Smith v. State, 170 Tex.Cr.R. 518, 342 S.W.2d 445.

Appellant contends that the charge to the jury with regard to the testimony of extraneous offenses was a comment on the weight of the evidence; the court charged the jury as follows:

“You are instructed as part of the law in this case, that the testimony of Brenna _ and Barbara - concerning acts other than the one for which the defendant is on trial was admitted into evidence.
You are instructed that you may consider this testimony and these other acts in determining whether or not the act charged in the indictment occurred. You are charged that you may consider these other acts to determine the unnaturalness and lascivious intent, if any, of the defendant Johnnie Thomas James, at the time and place charged in the indictment.”

The appellant objected to the quoted charge as follows:

“Comes now the defendant and further objects and excepts to the court’s charge with particular regard to that portion of the charge as to the testimony of Brenna _and Barbara_concerning the acts other than the one for which the said defendant is on trial, in that such portion of the court’s charge, encompassed in two paragraphs of said charge, in that the same constitutes a comment upon the weight of the evidence through the prejudice of the defendant.”

The quoted charge assumes that the appellant did in fact commit the acts which were of a like nature to the one charged, and constitutes a comment upon the weight of the evidence. There was an issue of whether the other acts did in fact occur because appellant in his testimony denied ever having committed such acts. The expression of opinion by the trial court on the weight of the evidence is prohibited by Article 36.14, Vernon’s Ann.C.C.P., and the objection on that ground was sufficient. Burrows v. State, 128 Tex.Cr.R. 349, 81 S.W.2d 523; Choice v. State, 164 Tex.Cr.R. 224, 298 S.W.2d 148; Erisman’s Manual of Reversible Errors, Sec. 713.

The judgment is reversed and the cause is remanded.

OPINION

ON STATE’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

On original submission we cited Choice v. State, 164 Tex.Cr.R. 224, 298 S.W.2d 148, and Burrows v. State, 128 Tex.Cr.R. 349, 81 S.W.2d 523, as authority for holding that an objection to a portion of the court’s charge on the ground that it was a comment upon the weight of the evidence complies with the requirement that the defendant or his counsel shall present his objections to the charge “in writing distinctly specifying each ground of objection.”

A reading of the opinions in these cases will reveal that the sufficiency of the objection to the charge was not considered or discussed and they are not authority for the holding that the objection in the case before us set out in our original opinion herein was sufficient. See Ernster v. State, 165 Tex.Cr.R. 422, 308 S.W.2d 33.

Authorities wherein an objection that a portion of the court’s charge was upon the weight of the evidence was considered and held insufficient include the following: Gill v. State, 84 Tex.Cr.R. 531, 208 S.W. 926; Cage v. State, 167 Tex.Cr.R. 355, 320 S.W.2d 364; Campos v. State, 172 Tex.Cr.R. 179, 356 S.W.2d 317; Rymer v. State, 171 Tex.Cr.R. 656, 353 S.W.2d 35; Cotton v. State, 116 Tex.Cr.R. 36, 32 S.W.2d 648; Davis v. State, 165 Tex.Cr.R. 294, 306 S.W.2d 353.

Insofar as the opinion in Choice v. State or Burrows v. State, supra, may be construed as in conflict with these authorities such opinion is overruled.

The requirements of Art. 36.14 (formerly Art. 658) Vernon’s Ann.C.C.P. that the objections to the court’s charge shall distinctly specify each ground of objection is mandatory. Cedillo v. State, 165 Tex.Cr.R. 371, 307 S.W.2d 267.

The State’s motion for rehearing is granted; the order reversing the conviction is set aside and the judgment is affirmed.

DISSENTING OPINION

ONION, Judge.

The question here presented is whether appellant’s objection to the court’s charge constituted a substantial compliance with the requirements of Article 36.14, V.A.C.C. P. This Court on original submission concluded that the defect in the charge should have been reasonably apparent to the experienced trial judge when the charge complained of and the objection thereto were considered together. The error in the charge is patent on its face particularly when attention is directed to the two paragraphs involved with the observation that the charge constitutes a comment on the weight of the evidence.

The requirement of Article 36.14, supra, that the defendant or his counsel shall present his objection to the charge “in writing; distinctly specifying each ground of objection” has been the law of this State since 1913. Acts 1913, 33rd Legislature, p. 278, Chapter 138, Section 1 (codified as Article 735, C.C.P., 1911). See Article 658, C.C.P., 1925, as amended by Acts 1931, 42nd Legislature, p. 65, Chapter 43, Section 5, and Acts 1953, 53rd Legislature, p. 486, Chapter 172. Article 658, supra, subsequently became Article 36.14 in the 1965 revision of the Code of Criminal Procedure.

The real purpose of the enactment of this Article was to enable the trial judge to know in what respect the defendant regards the charge as defective and to afford him an opportunity to correct it before reading the charge to the jury. The Article serves a salutary purpose in preventing the trial judge from being “sand-bagged” and in preventing unnecessary reversals. It was not designed or intended, however, as a device to prevent fair consideration on appeal of every overruled objection to the charge by allowing the appellate court to find every such objection did not “distinctly specify”.

It is clear from a study of the history of the statute that no particular form of objection has ever been prescribed. While a general objection is not ordinarily sufficient to bring in review the action of the trial court in refusing to amend the charge, the test applied to any objection made is whether or not the objection is sufficiently definite to make reasonably apparent to the trial judge the fault complained of when the charge complained of and the objection are considered together. Wiley v. State, 117 Tex.Cr.R. 449, 36 S.W.2d 495; Gill v. State, 84 Tex.Cr.R. 531, 208 S.W. 926. If it is so reasonably apparent to the judge then there has been a substantial compliance with the statute. Gill v. State, supra.

When the accepted test is applied to the case at bar, it seems clear that it should have been reasonably apparent to the trial judge who had heard the facts just what defect that the appellant was objecting to. The objection, while certainly by no means a model one, did direct the Court’s attention to the only two paragraphs of the Court’s charge dealing with the testimony of the two sisters and did point out that the same constituted comment on the weight of the evidence.

As can readily be seen from a review of the two paragraphs, the charge, particularly in light of the objection made, singled out the evidence of the “other acts”, assumed that they did in fact occur and passed this assumption along to the jury as the Court’s own observation. The charge of the Court should never assume the truth of any controverted issue of fact.

In Lankford v. State, 93 Tex.Cr.R. 442, 248 S.W. 389, this Court, speaking through Judge Lattimore, said:

“It is the settled law in this state that when evidence of collateral crimes is introduced for one of the various purposes for which such evidence becomes admissible, the jury should be instructed that they cannot consider against the defendant such collateral crimes, unless it has been shown to their satisfaction that the accused is guilty thereof. * * * and the jury should have been told that they could not consider as a guilty circumstance appellant’s selling intoxicating liquor in violation of law on the dates named, unless such guilt was shown by legal evidence beyond a reasonable doubt.”

See Miller v. State, 122 Tex.Cr.R. 59, 53 S.W.2d 790, 791; Nichols v. State, 138 Tex.Cr.R. 324, 136 S.W.2d 221; Vaughn v. State, 135 Tex.Cr.R. 205, 118 S.W.2d 312.

While it would have perhaps been desirable if the appellant had tendered to the trial court a special requested charge on this matter, similar to the one set forth in Willson’s Criminal Forms, 7th Ed., Sec. 3601, p. 596, or McClung, Jury Charges for Texas Criminal Practice, 1964, p. 207, it should be borne in mind that since the 1953 amendment to Article 658, supra (now Article 36.14, V.A.C.C.P.), it is not necessary for the defendant or his counsel to present special requested charges to preserve or maintain any error assigned to the charge.

This Court should never overlook the practical fact that objections to charges are often made under the stress and strain of trial with admonishments of the Court to “move along” and to avoid any unnecessary delay. Further, written objections are often hurriedly drafted only after oral presentation to the Court of the defendant’s contentions concerning the charge and it becomes clear from the discussion with the Court and the prosecutor that the charge will not be amended in accordance with the defense counsel’s requests or suggestions.

Each case must be tested in a measure by its own facts, the charge given and the objection thereto. The fact that this Court has on a number of occasions considered objections to the charge as being upon the weight of evidence and found them insufficient cannot be controlling here.

In none of the cases cited by the majority is both the charge complained of and the objection set out in the opinion as in the case at bar. In none of the cases so cited was the charge found to be erroneous or improper, though it is acknowledged that error in the charge will not save an otherwise insufficient objection.

In James v. State, 86 Tex.Cr.R. 598, 219 S.W. 202, this Court, in construing the language of the statute with which we are here concerned, and which has remained unchanged since its original enactment, said:

“In writing the statute (Article 735, C.C. P.) the Legislature had in mind that the objections to the charge would be passed upon by the trial judge acquainted with the facts of the case and the law applicable thereto and the terms in which the charge prepared by him was framed. The objects sought were to let the trial judge know in what respect the accused regarded the charge as faulty, to afford opportunity to correct it, and to make unavailable to the accused objections to the charge not made at the trial. These in the instant case, we think, were satisfied. The particular paragraph of the charge was pointed out, and the objection thereto distinctly specified within the meaning of the statute. Clarendon [Land, Investment & Agency Co.] v. McClelland, 86 Tex. [179,] 192, 23 S.W. 576, 1100, 22 L.R.A. 105, and annotations thereof in 4 Rose’s Notes on Texas Reports, p. 494. The statute should not he given a construction so technical as to deny the right of review on appeal, where a substantial compliance is shown and its end practically accomplished. [Chicago, R. I. & G.] Railway v. Pemberton, 106 Tex. [463,] 466, 161 S.W. 2, 168 S.W. 126.” (emphasis supplied)

To hold the objection here in question insufficient, in light of the record before us, is to give to Article 36.14, supra, a more restrictive effect than is warranted by its language.

Since the “other acts” were admissible as a part of the res gestae, the Court could have properly refused a request for an instruction limiting the evidence of other offenses. See Martinez v. State, 157 Tex. Cr.R. 603, 252 S.W.2d 186, and authorities cited therein. Having, however, decided to so charge the jury and single out such other acts, the trial court should have responded to the objection made that his charge was a comment on the weight of the evidence. The fact that the appellant was harmed by the Court’s action in assuming his guilt of the “other acts” is evidenced by the maximum penalty imposed by the jury.

Judge MORRISON and I respectfully dissent.


text:
    John Edwin ALLABEN, Appellant, v. The STATE of Texas, Appellee.
    No. 40363.
    Court of Criminal Appeals of Texas.
    May 24, 1967.
    As Amended June 28, 1967.
    Rehearing Denied June 28, 1967.
    Second Rehearing Denied Oct. 4, 1967.

      Ray Stevens, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and F. M. Stover, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

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

Appellant does not challenge the sufficiency of the evidence and a recitation of the facts is unnecessary for a proper disposition of the case.

In his first ground of error, appellant contends the Court erred in refusing to allow him to testify before the jury at the separate hearing on punishment that he had been receiving psychiatric care and treatment since the occurrence of the offense.

Testifying in his own behalf at the hearing on punishment, the thirty-three year old appellant related that he had graduated in the upper ten per cent of his college class with a degree in science and mathematics, had been in the military service for three years, and had been employed in the field of electronics by General Electric. He further offered proof in support of his application for probation that he had never been convicted of a felony. Upon objection by the State, the Court refused to permit appellant to testify before the jury to the fact that he had been receiving psychiatric care for his sexual problems. The testimony sought to be offered was not for the purpose of raising a defensive issue or to question the appellant’s competence to stand trial.

Out of the jury’s presence, appellant perfected his bill of exception which showed that twice a week since the offense he had visited a psychiatrist in his home town in connection with his psychological problem, and that he hoped to continue such treatment.

Evidence to be offered at the hearing on punishment pursuant to the provisions of Article 37.07, Section 2(b), Vernon’s Ann.C.C.P. is by no means limited to the defendant’s prior criminal record, his general reputation and his character. Evidence legally admissible to mitigate punishment or evidence that is relevant to the application for probation, if any, is also admissible.

It appears that the Court should have admitted the testimony excluded, but we cannot conclude, in light of the entire record, that trial court’s action constitutes such error as to call for reversal.

Appellant cites no authority to support his contention and we know of none. The first ground of error is overruled.

Following the retirement of the jury to deliberate upon the issue of punishment, the following note was submitted to the Court by the foreman:

“This jury would like a specific explanation of the restraints, contacts and checks which are imposed upon a defendant if he is given probation. What does the defendant have to do and what does the ‘Justice Dept.’ per se do to insure his good behavior?”

It appears from the record that after submission of the note to appellant’s counsel, the trial judge in open court in the presence of appellant and his counsel, with the proceedings being recorded by the court reporter, stated to the jury orally:

“Ladies and Gentlemen, I am sorry that I am unable to answer your question. I will just have to refer you back to the Court’s charge. Please retire for further deliberations.”

Prior to the above quoted oral answer to the jury’s question, the appellant took the following exception:

“I except to the Court’s decision in not giving them, the jury, the statutory requirements as to probation.”

In his second ground of error, appellant contends the trial court erred in failing to answer the jury’s communication in writing.

Article 36.27, V.A.C.C.P., provides as follows:

“When the jury wishes to communicate with the court, it shall so notify the sheriff, who shall inform the court thereof. Any communication relative to the cause must be written, prepared by the foreman and shall be submitted to the court through the bailiff. The court shall answer any such communication in writing, and before giving such answer to the jury shall use reasonable diligence to secure the presence of the defendant and his counsel, and shall first submit the question and also submit his answer to the same to the defendant or his counsel or objections and exceptions, in the same manner as any other written instructions are submitted to such counsel, before the court gives such answer to the jury, but if he is unable to secure the presence of the defendant and his counsel, then he shall proceed to answer the same as he deems proper. The written instruction or answer to the communication shall be read in open court unless expressly waived by the defendant.
“All such proceedings in felony cases, shall be a part of the record and recorded by the court reporter.”

It is noted that the foregoing is a re-draft of old Articles 676 and 677, C.C.P., 1925. Old Article 676 permitted the jury to communicate with the Court, either verbally or in writing. Old Article 677 required that additional instructions given after the jury’s retirement be in writing.

It has long been the holding of this Court that the giving of additional instructions to a jury by the trial court without complying with the provisions of these Articles that such communication be in open court and in the presence of the defendant constitutes reversible error. Myles v. State, 170 Tex.Cr.R. 479, 341 S.W.2d 913.

It has been held though that a refusal to answer the jury question does not constitute additional instructions. Torres v. State, 169 Tex.Cr.R. 113, 331 S.W.2d 929; Davis v. State, 168 Tex.Cr.R. 399, 328 S.W.2d 765; Gibson v. State, 153 Tex.Cr.R. 582, 223 S.W.2d 625; Prater v. State, 131 Tex.Cr.R. 35, 95 S.W.2d 971; Heald v. State, 130 Tex.Cr.R. 178, 92 S.W.2d 1042, nor is a referral to the original charge considered an additional instruction. Pigg v. State, 162 Tex.Cr.R. 521, 287 S.W.2d 673; Gilderbloom v. State, 160 Tex.Cr.R. 471,272

S.W.2d 106; Guajardo v. State, 139 Tex.Cr.R. 201, 139 S.W.2d 85.

Therefore, it has been the uniform holding of this Court that a communication between the Court and the jury, although not in compliance with the above mentioned statutes which does not amount to additional instructions by the Court, does not constitute reversible error. Franklin v. State, Tex.Cr.App., 363 S.W.2d 137. Attention is called to the fact that most of the cases cited above dealt with situations where the Court’s answer to the jury was given in the absence of the defendant and not necessarily as in the case at bar with the failure alone to reduce it to writing.

If the jury after retirement request additional instructions upon a question of law and the subject matter of the request is proper there can be no question but what the Court should give such instructions in writing. If the request is improper, the Court should so inform the jury in writing. Conn v. State, 11 Tex.App. 390. See Osborne v. State, 93 Tex.Cr.R. 54, 245 S.W. 928; LaGrone v. State, 84 Tex.Cr.R. 609, 209 S.W. 411. A careful compliance with Article 36.27, supra, would have required the answer in the case at bar to have been in writing. We perceive no error, however, where the Court’s oral statement to the jury amounts to a refusal to answer and a referral to the original charge and does not constitute an additional instruction. Lamkin v. State, 165 Tex.Cr.R. 11, 301 S.W.2d 922; Davis v. State, supra. The Court’s answer in the case at bar could in no way be construed as an additional instruction. Franklin v. State, supra. We observe further that at no time did appellant object to the failure of the Court to reduce his answer to writing, and no injury or harm to appellant has been shown. Cf. Rules 285 and 286, Texas Rules of Civil Procedure; Travis-Williamson County Water Control and Imp. Dist. No. 1 v. Page, Civ.App., 358 S.W.2d 158 (affirmed in part, reversed in part on other grounds— 367 S.W.2d 307); Consolidated Casualty Insurance Co. v. Perkins, Civ.App., 269 S.W.2d 683, (reversed on other grounds, 154 Tex. 424, 279 S.W.2d 299); Ross v. Texas Employers’ Insurance Association, 153 Tex. 276, 267 S.W.2d 541.

Appellant’s second ground of error is overruled.

Appellant urges, in his third ground of error, that the trial court erred in refusing appellant’s request to advise the jury as to the statutory conditions of probation as set out in Article 42.12, subd. B, Section 6, V.A. C.C.P., following the receipt of the jury’s note.

In his charge to the jury on punishment, the Court, while not listing the possible statutory conditions of probation which may be imposed by the Court if the jury recommends probation, gave a full explanation of the statutory requirements as to such eligibility for probation. The appellant addressed no objection or exception to said charge nor requested any special charges.

At the time of the Court’s answer to the jury’s question, the appellant excepted as set forth above. The statutory requirements as to eligibility for probation referred to in such exception had previously been set out in the Court’s charge. There is a distinction to be made between the statutory requirements of eligibility for probation, and the probationary conditions that may be imposed upon the granting of probation.

The record is devoid of any request to the Court, following receipt of the jury’s question, to instruct the jury as to the statutory conditions of probation which may be imposed by the Court where the jury recommends probation. Appellant readily concedes that this is true, but claims in his brief that upon receipt of the jury’s question, he orally requested an instruction in the terms of Article 42.12, subd. B, Section 6, V.A.C.C.P., which the Court refused. He contends he was unaware that such request and refusal had not been recorded by the court reporter until the record on appeal was submitted to him for approval. The record does reveal that upon appellant’s objection, after submission for approval, the record was amended to include the above quoted answer to the jury’s note and the appellant’s exception thereto. No effort, however, appears to have been made to bring forward in the record by formal bill of exception or otherwise the claimed request for an instruction concerning probationary conditions. See Article 40.09, Sections 4, 6, 7, and 14, V.A.C.C.P. The same is not before us and cannot be considered. Appellant makes no claim that his above quoted exception sought to encompass his earlier made request for an instruction on probationary conditions. The trial court did not err in failing to heed a request not shown to have been made.

The trial judge could have given additional instructions to the jury concerning the statutory conditions of probation if he felt their question called for the same, or •if he had deemed it otherwise advisable. If an instruction may properly be given in the original charge, it may be given as an additional instruction. It is obvious from the record that the trial court did not deem it necessary to give an additional instruction. In light of the Court’s previous charge, it is difficult to determine exactly what the jury sought by its question. Any attempted answer to what “the ‘Justice Dept.’ does per se to insure good behavior”, would have involved conjecture and speculation, and an answer to such a question is not required to be given. Gibson v. State, 153 Tex.Cr.R. 582, 223 S.W.2d 625. We conclude the Court did not abuse its discretion in refusing to answer the jury and in referring the jury to the Court’s charge.

Finding no reversible error, the judgment is affirmed.