author: GREENHILL, Justice.

text:
    Homer PUCKETT et ux., Petitioners, v. W. A. FRIZZELL, Respondent.
    No. A-11204.
    Supreme Court of Texas.
    April 20, 1966.
    Rehearing Denied May 18, 1966.

      Pope & Heitler, Tyler, for petitioners.
    Ben Goodwin, Tyler, for respondent.
   GREENHILL, Justice.

The only question before us is whether the Court of Civil Appeals sitting at Tyler correctly dismissed the appeal in this case. That court, with one judge dissenting, held that the appeal bond had not been filed in time in the trial court and that the record had not been filed in time in the Court of Civil Appeals. 396 S.W.2d 245. We hold that the appeal should not have been dismissed, and the cause will be returned to the Court of Civil Appeals for a consideration of the merits of the case.

The judgment of the trial court contained a notice of appeal. Thereafter a motion for new trial was filed. It was overruled, and no additional notice of appeal was given. The appellant put up a cash bond. The cash bond, the transcript and statement of facts were filed in time if the time for filing began to run from the date of the overruling of the motion for new trial. They were not filed in time if the time began to run from the date of the judgment which contained the notice of appeal.

There are five of our Rules of Civil Procedure which are involved. As applicable here, they are as follows, with emphasis being added by us:

Rule 353.

“(a) An appeal * * * may be taken by notice of appeal (1) in open court, noted on the docket or embodied in the judgment, order overruling motion for new trial, or other minute of the court, or (2) filed with the clerk; such notice to be given or filed within ten days after the judgment or order overruling motion for new trial is rendered.”

Rule 356.

“(a) Whenever a bond for costs on appeal is required, the bond shall be filed with the Clerk within thirty days after rendition of judgment or order overruling motion for new trial. If a deposit of cash is made in lieu of bond the same shall be made within the same period.”

Rule 306c.

“No motion for new trial or appeal bond or affidavit in lieu thereof or notice of appeal shall be held ineffective because prematurely filed; but every such motion shall be deemed to have been filed on the date of but subsequent to the rendition of the judgment the motion assails, and every such appeal bond or affidavit or notice of appeal shall be deemed to have been filed on the date of but subsequent to the rendition of the judgment appealed from or from the date of the overruling of motion for new trial, if such a motion is filed.”

Rule 363.

“The appeal is perfected when the notice of appeal is given and the bond or affidavit in lieu thereof has been filed ⅜ * *

Rule 386.

“In appeal or writ of error the appellant shall file the transcript and statement of facts with the clerk of the Court of Civil Appeals within sixty days from the rendition of the final judgment or order overruling motion for new trial * *

Rule 386 continues to provide for extensions of time upon good cause being shown.

The pertinent time table in this case is as follows:

Nov. 13, judgment entered containing notice of appeal.
Nov. 20, motion for new trial filed.
Dec. 17, motion for new trial overruled (no further notice of appeal given).
Jan. 14, cash put up in lieu of appeal bond (within 30 days from overruling of motion for new trial, but not within 30 days of the original judgment).
Feb. 25, the Court of Civil Appeals granted appellant an additional 20 days within which to file the record.
Mar. 8, (within that 20 days) the record was filed in the Court of Civil Appeals.
Oct. 21, the Court of Civil Appeals dismissed the appeal for want of jurisdiction because “the appeal bond and the record were not timely filed.” The rules cited were 356 and 386, set out above.

The reasoning of the Court of Civil Appeals was: an appeal is perfected when [and only when] (1) notice of appeal is given, and (2) bond, or cash in lieu of bond, is filed in time. The only notice of appeal was given in the judgment of November 13. The cash in lieu of the bond was filed on January 14, more than 30 days from the giving of the notice of appeal on November 13; so the Court of Civil Appeals held that the cash in lieu of bond was put up too late; and the appeal was not perfected in time. We disagree. Rule 356 says the bond, or cash in lieu thereof, shall be filed within 30 days of the judgment or order overruling the motion for new trial. It was filed within 30 days of the order overruling the motion for new trial.

The Court of Civil Appeals reasoned that if the appellant had given an additional or second notice of appeal after the overruling of his motion for new trial, he would have been saved. The concurring justice was of the view that there must be a notice of appeal after the overruling of the motion for new trial, and that the notice of appeal given in the judgment cannot serve the dual function of (1) a notice of appeal from the judgment and (2) a notice of appeal given when the motion for new trial is overruled.

We disagree with both of these positions. The rules provide for a notice of appeal, and Rule 353 provides that the notice may be embodied in the judgment. It was so done in this case. There is no requirement of a second notice of appeal upon the overruling of the motion for new trial. 4 McDonald, Texas Civil Practice 1509, § 18.31. The appeal is from the judgment, not from the order overruling the motion for new trial. Neely v. Tarrant County, 132 Tex. 357, 124 S.W.2d 101 (1939). This Court there said:

“The appeal in such case is an appeal from the judgment. The appellants’ purpose in so appealing is to avoid the effect of the judgment which has been rendered against him. The filing of the motion for new trial and the order overruling it are steps in the accomplishment of that purpose. The appeal is after but not from the order overruling the motion.” 124 S.W.2d at 105.

The holding quoted above was followed in City of Corpus Christi v. Gregg, 267 S.W.2d 478 (1954, no writ), by the Court of Civil Appeals sitting at San Antonio. The Gregg opinion was cited in the court’s opinion and in the dissenting opinion in the case at bar. The holding in that case was that the time for filing the record began to run from the time the motion for new trial was overruled. The particular point before us in this case was not before the San Antonio Court of Civil Appeals, because in that case there was a notice of appeal in the judgment and also a notice of appeal in the order overruling the motion for new trial. The peculiarities in the Corpus Christi-Gregg case were (1) under the opinion of the Court of Civil Appeals, the city did not have to file a motion for new trial because the judgment was against it notwithstanding the verdict, and (2) the city, as a public body, did not have to file a bond. It was contended by the appellee, and it was the view of the dissenting justice, that since the city did not have to file a motion for new trial and did not have to file a bond, the appeal was perfected immediately upon the giving of the notice of appeal in the judgment. It was argued that at that moment, the jurisdiction of the case shifted to the Court of Civil Appeals. That being so, the argument continued, the record must have been filed within 60 days from the date of the judgment. The Court of Civil Appeals held otherwise: the city had the right to file the motion for new trial, and the time for filing the record began from the overruling of the motion for new trial. Apparently because of the uniqueness of the procedural problem brought about by the fact that the city was not required to file a bond, the court said that the appeal was not immediately perfected by the first notice of appeal contained ip the judgment (so as to divest the trial court of further jurisdiction), but that the second notice of appeal given in the order overruling the motion for new trial superseded the first motion for new trial. As stated, the holding was that the time ran from the order overruling the motion for new trial.

The San Antonio Court of Civil Appeals later wrote an opinion on the merits in City of Corpus Christi v. Gregg, 275 S.W.2d 547 (1955). This Court granted a writ of error, and the question regarding the filing of the record was considered by this Court along with the merits of the case. City of Corpus Christi v. Gregg, 155 Tex. 537, 289 S.W.2d 746 (1956). This Court was of the opinion that the city did have to file a motion for new trial in order to complain of matters occurring prior to the trial of the case, such as its ruling on motion for continuance. It recognized that no bond was required of the city. The holding was that the time for filing the record began to run when the motion for new trial was overruled. This Court did not refer to or mention the second notice of appeal given in the order overruling the motion for new trial. Its opinion stated that under the circumstances, the city did perfect its appeal at the time of the rendition of the judgment. But it said that the rules made other provisions for the time for the filing of the record. The opinion, as to this point, concludes that where a motion for new trial is filed,

“ * * * the appeal is perfected at the time of the order overruling the motion for new trial, instead of when [the notice of appeal was] first given at the rendition of the judgment. The City of Corpus Christi was required to file a motion for new trial and since it did file such motion the record was timely filed in the Court of Civil Appeals within the sixty days after the order overruling the motion, as is required by Rule 386 above quoted. This being true the motion to affirm on certificate is denied and the judgment of the Court of Civil Appeals on this point is affirmed.” 289 S.W.2d at 749.

The distinction referred to in this Court’s opinion in the Corpus Christi-Gregg case between cases where motions for new trial were required, and cases where such motions were permitted but not required and were filed, was later discussed and rejected in this Court’s opinion in Park v. Essa Texas Corp., 158 Tex. 269, 311 S.W.2d 228 (1958). The opinion of the Court of Civil Appeals in that case recites that notice of appeal of the appellant was contained in the judgment of the trial court. 306 S.W.2d 383 at 384. The appellant in that non-jury case was not required to file a motion for new trial, but he did so. He filed the record within 60 days from the overruling of the motion for new trial, but not within 60 days from the judgment. The Court of Civil Appeals held that the record was filed too late. This court reversed. The holdings were: (1) if a motion for new trial is filed, though not required to be filed, the time begins from the overruling of the motion for new trial, and (2) the record was filed in time. Among other things, that opinion stated:

“If a litigant has a right to file a motion for new trial and does so, it would cause considerable confusion if his time for appeal began upon the rendition of judgment rather than upon the overruling of his motion. He would, at the same time, be urging his motion in the trial court and appealing. He would have to request the preparation of the statement of facts and the transcript with its attendant expense without knowing whether they would be necessary or not.”

The Court of Civil Appeals in the case at bar also relies upon some language in Chekanski v. Texas & N. O. Ry. Co., 306 S.W.2d 935 (Tex.Civ.App.1957, writ ref. n. r. e.). That opinion clearly points out that no notice of appeal was given in the judgment. Moreover, no motion for new trial as such was ever filed there. Appellant filed something which the Court of Civil Appeals said it would treat as a motion for new trial, and concluded that it had been overruled by operation of law. The appellant, by that time had already filed a bond. The holding of the case was, in that particular situation, that no notice of appeal need have been given, and that the motion to dismiss the appeal would be overruled. The case is not in point here.

The appeal is perfected in cases such as this when there is a notice of appeal, motion for new trial which is duly filed and overruled (as was done in this case), and when the appeal bond, or cash in lieu of the bond, is filed. Rule 356 says the appeal bond or its equivalent shall be filed within 30 days after the judgment or the order overruling the motion for new trial. It was so done in this case. The appeal, therefore, was duly perfected.

The Court of Civil Appeals also held, as we understand its opinion, that the record was not filed in time because it was not filed within 60 days from November 13, the day on which the judgment was entered which contained the notice of appeal. Again we disagree. We have heretofore held that the appeal was perfected by the giving of notice of appeal in the judgment, the filing and overruling of the motion for new trial, and the filing of a bond within 30 days from the overruling of the motion for new trial. Then Rule 386 says that the record shall be filed within 60 days from the rendition of the final judgment or the order overriding the motion for new trial. Including the extension of time granted by the Court of Civil Appeals, the record was filed in time.

The contention that the notice of appeal given in the judgment cannot be used when a motion for new trial is filed really amounts to an assertion that the notice was prematurely given; i. e., the moving party has not been hurt so long as the trial court might grant the motion for new trial. So the movant should wait until the trial court has completely finished before giving notice of appeal. Or, stated differently, the argument would be that the movant does not know completely what to complain of until the motion is overruled. The answer to this is found in Rule 306c. As applicable here and omitting unnecessary words, the rule says, “No notice of appeal shall be held ineffective because prematurely filed; but every such notice of appeal shall be deemed to have been filed on the date of but subsequent to the rendition of the judgment appealed from or from the date of the overruling of the motion for new trial, if such motion is filed.”

A motion for new trial was filed in this case. Under Rule 306c, the giving of the notice in the judgment was not premature; and that rule says that the notice shall be deemed to have been given after the overruling of a motion for new trial. Under this construction, the time for filing of the bond, or cash in lieu of the bond, and for the filing of the record would clearly run from the date of the overruling of the motion for new trial.

We therefore conclude that the Court of Civil Appeals erred in dismissing the appeal. The judgment of that court is reversed, and the cause is remanded to the Court of Civil Appeals for its consideration of the appeal upon its merits.


source: Caselaw Access Project

author: STEAKLEY, Justice. GRIFFIN, Justice

license: Public Domain

text:
    TEXAS EMPLOYERS’ INSURANCE ASS’N, Petitioner, v. Charlie Robert DOSSEY, Respondent.
    No. A-10735.
    Supreme Court of Texas.
    March 30, 1966.

      Turpin, Smith, Dyer & Hardie, Max N. Osborn, Midland, for petitioner.
    Warren Burnett and Robert D. Pue, Odessa, for respondent.
   STEAKLEY, Justice.

This is a workmen’s compensation case. The question is whether the Respondent, Dossey, who was injured in New Mexico, is entitled to compensation under the Texas Workmen’s Compensation Law, Article 8306 et seq. The trial court held that he was and on the basis of jury findings entered judgment for Dossey for total and permanent disability. The Court of Civil Appeals affirmed. 387 S.W.2d 758. We reverse the judgments below and remand the case.

Dossey is a resident of Texas and was residing at Andrews, Texas, at the time of his injury. Andrews is thirty-two miles from the Texas-New Mexico boundary. Dossey is an oil field worker. In January of 1962 he and a friend heard that Lowe Drilling Company was looking for a crew with which to start a drilling operation. Lowe Drilling Company had its principal office in Midland, Texas, and operated rigs in the West Texas-New Mexico oil field. Henry Ellis Williams was Lowe’s tool-pusher with the duty of employing the crew. Dossey and his friend sought out Williams a few miles from Andrews on an oil field road and asked for work. In the informal manner of doing such things in the oil business, Williams said he would hire them and that they should stand by until further notice. Dossey was subsequently called by Williams and told to report for work the following morning. He did so and was then told that he would first go to work on a rig in New Mexico. He worked at the New Mexico location for four weeks until the well was completed. The crew, including Dossey, was then sent to a location near Andrews, Texas, where they worked three days laying water and gas lines to a Lowe Drilling Company rig. The crew was then sent to another location in New Mexico where Dossey suffered his injury ten days later.

The evidence as to the terms of the contract of employment, particularly the testimony of Dossey and Williams, is inconclusive. There is evidence from their testimony that Dossey was hired to work in both Texas and New Mexico as the circumstances of his employer might require. Williams, for example, testified that at the time of his employment of Dossey he did not know where Dossey would be working; that it would be in one of the two states of Texas or New Mexico, depending upon where the rig to which they would be assigned would be “fired up”; that it was his understanding that Dossey would be “working in Texas and New Mexico or in either state,” depending upon where the work took him; and that it was “just a matter of happenstance that the rig fired up in New Mexico first.” In any event, it was stipulated that the contract of hire remained unchanged during Dossey’s employment by Lowe Drilling Company.

Petitioner’s points of error assert, in essence, two propositions: first, that the undisputed proof established conclusively that at the time of his injury Dossey occupied the status of a New Mexico — and not a Texas — employee; and, second, that the trial court erred in not submitting to the jury its requested issue inquiring whether Dossey occupied the status of a Texas employee at the time of his injury. We overrule the first and sustain the second of these contentions.

The extraterritorial provisions of the Texas Workmen’s Compensation Law, Article 8306, Sec. 19, provide:

“If an employee, who has been hired in this State, sustain injury in the course of his employment he shall be entitled to compensation according to the Law of this State even though such injury was received outside of the State, and that such employee, though injured out of the State of Texas, shall be entitled to the same rights and remedies as if injured within the State of Texas. * * *
“Providing that such injury shall have occurred within one year from the date such injured employee leaves this State; and provided, further, that no recovery can be had by the injured employee hereunder in the event he has elected to pursue his remedy and recovers in the state where such injury occurred.”

The construction of these statutory provisions by this Court is found in the following cases: Texas Employers’ Ins. Ass’n v. Volek, 69 S.W.2d 33 (Tex.Com.App.1934); Maryland Casualty Co. v. Brown, 131 Tex. 404, 115 S.W.2d 394 (1938); Texas Employers’ Ins. Ass’n v. James, 131 Tex. 605, 118 S.W.2d 293 (1938); Travelers Ins. Co. v. Cason, 132 Tex. 393, 124 S.W.2d 321 (1939); Fidelity & Casualty Co. v. McLaughlin, 134 Tex. 613, 135 S.W.2d 955 (1940); Southern Underwriters v. Gallagher, 135 Tex. 41, 136 S.W.2d 950 (1940); and Hale v. Texas Employers’ Ins. Ass’n, 150 Tex. 215, 239 S.W.2d 608 (1951). The exhaustive review of these cases in Hale will not be here repeated. We said in Hale:

“All of those decisions seem to be in accord on the point that the employee, to be entitled to the benefit of the extraterritorial provision of the statute, must have acquired the status of a Texas employee. This because the entire statute is intended for the benefit of Texas employees and because industry in Texas should not have the burden of providing insurance for employees of other states. * * *
“From the language of the statute and from the decisions discussed, we are led to the conclusion that the phrase ‘status of a Texas employee’ is not used in a narrow or technical sense, but rather is intended to include those who have a status of Texas employees or workmen in the ordinary sense of the words.”

An employee has the status of a Texas employee when he has been hired in this state to work in this state and in another state as the circumstances of his employer may require. His Texas employee status is fixed in the fact of his employ-raent to work in Texas as well as in the other state. He continues to occupy this status even though he first works in the other state. Relying on certain statements in the opinion of this Court in Gallagher and Hale, Petitioner contends that Dossey is precluded from Texas benefits because he worked first in New Mexico; in other words, that under these two decisions a workman cannot acquire a status of a Texas employee if he has not in fact performed services for his employer in this state before doing so in the other state. We overrule these contentions and anything said in Gallagher or Hale contrary to this holding is disapproved.

The extraterritorial provisions of the Texas statute do not expressly preclude benefits for a Texas workman in the circumstances of Dossey. Indeed, there is no sound reason why such a workman cannot have an employee status in both Texas and the other state, with protection at his election in either state if permitted by the compensation statutes of the other state as construed by its courts. Be this as it may, however, Texas has the most legitimate public interest in Dossey as an injured workman. He is a Texas resident; the contract of hire occurred in Texas; his employer is domiciled in Texas; and he did, in fact, perform labor and services in both Texas and New Mexico before his injury in New Mexico. Cf. Pacific Employers Ins. Co. v. Industrial Accident Commission, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940 (1939), and Alaska Packers Ass’n v. Industrial Accident Commission, 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044 (1935).

As previously reviewed, the evidence in the present record as to the terms and conditions of Dossey’s employment is inconclusive. It cannot be said that it is undisputed either that Dossey was, or that he was not, employed to work in Texas, as well as in New Mexico. It follows that we cannot determine as a matter of law whether or not he occupied the status of a Texas employee at the time of his injury in New Mexico. Ascertaining the real agreement of the parties from a consideration of the evidence bearing on the terms and conditions of the contract of employment, and hence determining employee status, is the function of the trier of facts. Petitioner requested submission to the jury of an issue inquiring whether Dossey occupied the status of a Texas employee at the time of his injury. The trial court denied the request and this action is the subject of points of error in the Court of Civil Appeals and here. It follows from what we have said above that Petitioner was entitled to a fact submission in these respects. This fact submission could be in terms of whether Dossey occupied the status of a Texas employee at the time of his injury, as requested by the Petitioner, with instructions in accordance with our holding here, or, as we regard more appropriate, in terms of whether under his employment contract Dossey was hired to work in Texas as well as in New Mexico.

The judgments of the trial court and of the Court of Civil Appeals are reversed, and the cause is remanded to the trial court.

GRIFFIN, Justice

(dissenting).

I am unable to distinguish the facts in this case from the facts of the Gallagher case (135 Tex. 41, 136 S.W.2d 590), except the facts in the Gallagher case are much more favorable to a recovery by the injured workman than they are here. In that case Gallagher testified:

“That he first talked to the officers or agents of the Drilling Company at Kermit, in Winkler County, Texas; that Kermit is about twelve miles from the New Mexico line; that at the time he first talked to the above-mentioned officers they were going to drill a well in Texas near Pecos; that he spoke to such officers about going over there on the Pecos job, and they said when they got ready to start that job they would send him (Gallagher) over there; that he did not go to work on the well near Pecos in Texas, and never did any work for the Drilling Company in Texas; that the well was started in New Mexico, and he was told by the officials of the Drilling Company to go over there, and when the Drilling Company got ready to rig up, he {Gallagher) would be transferred back to Texas; that the officers of the Drilling Company told him {Gallagher) that he would be sent to the deep test in Pecos County, Texas, which well was another job; that he (Gallagher) said he would rather work in Texas than in New Mexico for the reason he lived in Texas with his family; that the officers of the Drilling Company told him (Gallagher) to go over there (we presume meaning New Mexico), we carry Texas Compensation Insurance, and that he (Gallagher) then took the job and went to work on the well in New Mexico; that he (Gallagher) did not go to work in Texas; and that he was injured before the Texas job got started.”

In the case at bar, plaintiff Dossey testified on direct examination that he was hired on a Saturday and went to work on a Monday (eight days after the employment contract); at the time of his employment there was no discussion about where he was to work in what state or county; he was to work wherever the rig was, and that when he went to work the rig was close to Monument, New Mexico, lying on the ground; that the rig was erected on a location in the State of New Mexico and this is where he went to work.

Williams, the driller for Lowe Drilling Company who hired Dossey, testified that this was his first job for Lowe Drilling Company; that Mr. Massey, Lowe’s drilling superintendent, hired Mr. Williams to work on one of two rigs at the time stacked in New Mexico. Rig No. 1, on which Williams and Dossey worked, and Rig No. 5, on which neither worked so far as the record shows, were both located in New Mexico.

There is no testimony in the record that Dossey ever requested work in the State of Texas or that Williams ever promised him work in Texas; no testimony as to a request by Dossey or a promise by Williams that Dossey would ever be transferred to work in Texas.

The evidence does show that the three days’ work laying lines which Dossey did in Texas while his rig in New Mexico was being skidded to a new location in New Mexico was only temporary work given by Lowe “in order to enable the crew of Rig No. 1 to earn some wages while waiting. Dossey testified that when his first job on Rig No. 1 was finished, Williams asked his crew to remain available to go to work at the new location and that “Sonny” (Williams) promised that when the rig started up at its new location he still had a job working for Lowe, and that Williams told him the work in Texas was only temporary and the crew would go back to Rig No. 1 when it started up. There is no testimony that this rig or that the driller, Williams, ever thereafter worked on any rig in Texas for Lowe, but the evidence shows all their work was in New Mexico.

Try as hard as the majority does, it never does get away from the test laid down in Gallagher and Hale (150 Tex. 215, 239 S.W.2d 608) for determining whether or not an employee has acquired the status of a Texas employee so as to be covered by Texas Workmen’s Compensation. That test is simple and of easy application and is: “ * * * that one who has not in fact done any work in Texas for his employer before being hired to work in another state cannot be said to have acquired the status of a Texas employee and is not entitled to the benefits of the statute.” (Emphasis added.)

There is not a single case cited by the majority as authority for its holding in which a recovery has been allowed wherein the employee had not first been working for his employer in Texas prior to the time he was working for the same employer outside Texas. There is no such case in the books.

For this simple, understandable and easily applied test of when an employee has acquired the status of a Texas employee, the majority has substituted a confusing and many-pronged test, stated as follows: “He is a Texas resident; the contract of hire occurred in Texas; his employer is domiciled in Texas; he was employed to work in both Texas and New Mexico and he did, in fact, perform labor and services in both [states] before his injury in New Mexico.”

Patently the last test of performing labor in both Texas and New Mexico is directly contrary to the stipulation between the parties that “there was no breaking off of the contract to hire” and “no change of any contract to hire,” and “no change in his status” from the original conversation of hiring between Williams and Dossey about one week prior to the beginning of the work on Rig No. 1 in New Mexico. Such test is also directly contrary to Dossey’s testimony set out above that “Mr. Sonny Williams told me that the work I was doing in Texas was only temporary, and as soon as Rig No. 1 started back up (in New Mexico) I would go back there.” Clearly, under the ordinary meaning of the English language, the interim temporary Texas work could not serve to give Dossey the status of a Texas employee.

Which of the tests laid down by the majority is the controlling test? Must all tests be present? If not, which ones may be absent? Which combination of tests are necessary in order for an employee to have status as a Texas employee? The above questions illustrate the confusion that will result from the majority opinion.

If Gallagher is no longer the law, then that fact should be faced, and the bench and bar told not to rely further on Gallagher; Hale; Covington v. Associated Employers Lloyds, Tex.Civ.App., 195 S.W.2d 209, writ refused, and the many other cases now in the Texas Reports upholding the Gallagher rule.

In my opinion, it is much better for there to be certainty in the law than for it to be left In a state of confusion, so that the legal profession has no guideposts whereby it may steer a course of justice.

I would adhere to the Gallagher rule and reverse the judgments of the courts below and render judgment in favor of the petitioner herein.

HAMILTON, J., joins in this dissent.

      . The statutory references are to Vernon’s Annotated Civil Statutes.

      . Neither proviso is raised by Petitioner’s points of error.


author: NORVELL, Justice.

text:
    William L. RICHARDS, Petitioner, v. Weldon J. ALLEN, Respondent.
    No. A-10963.
    Supreme Court of Texas.
    March 16, 1966.

      Andress, Woodgate, Richards & Condos, Dallas, for petitioner.

      Thompson, Knight, Wright & Simmons, Frank Finn, Jr., and George C. Chapman, Dallas, with above firm, for respondent.
   NORVELL, Justice.

On May 18, 1964, the trial court granted a motion for summary judgment and decreed that the plaintiff, Weldon J. Allen, individually and as trustee, recover of and from the defendant, William L. Richards, the sum of $8,959.78. This judgment was interlocutory, but on June 26, 1964, over Richards’ objection, the trial court granted Allen’s motion to sever a third party action which Richards had asserted against W. C. Hummelbaugh, John G. Wilson and International Credit Bank, as third party defendants. This action rendered Allen’s money judgment against Richards final and appealable. Upon Richards’ appeal, the Court of Civil Appeals affirmed. 391 S.W.2d 795. Richards is the petitioner here.

The record in this case is not entirely clear and in some respects it is contradictory. The order granting the summary judgment recites that:

“Upon reading, reviewing and examining all of the pleadings on file, all of plaintiff’s sworn pleadings on file herein and the oral deposition of defendant, William L. Richards, taken herein on November 15, 1963, and after hearing evidence and full and complete argument of counsel, the Court is of the opinion that plaintiff’s motion for summary judgment should be in all things sustained.”

The Court of Civil Appeals evidently considered that some evidence was introduced upon the summary judgment hearing and as no statement of facts was filed in that Court, indulged the usual presumption that such evidence would support the judgment rendered. The disposition of a cause by summary judgment may effectively adjudicate the merits of a dispute, but the summary judgment proceeding is not a conventional trial but rather an exception to the usual and traditional form of procedure wherein witnesses are heard in open court and documentary evidence is offered and received in evidence. Rule 166— A, relating to summary judgments, is contained in that portion of the Texas Rules of Civil Procedure relating to pre-trial procedures. Its obvious purpose is to dispose of a cause summarily without a trial in the conventional or traditional sense. The rule does not provide for a hybrid form of trial nor extend an open invitation to procedural experimentation. The matters which may properly be considered as bases for a summary judgment are specifically set forth. They are “the pleadings, depositions, and admissions on file, together with the affidavits, if any”. Rule 166-A, paragraph (c). The motion for summary judgment filed herein states that it is based upon: “1. Plaintiff’s sworn pleadings on file in this case land) 2. The oral deposition of Defendant, William L. Richards, taken on November 15, 1963 * * * ” The transcript does not show that either Allen’s petition or his motion for summary judgment were verified, but does contain a certificate by the Clerk that, “No deposition of William L. Richards is on file or was ever filed in this cause.” It seems probable that upon the hearing, the trial judge considered portions of an incomplete and unsigned transcription of certain answers made by William L. Richards in reply to inquiries propounded to him, under the misapprehension that such questions and answers were contained in a completed deposition which was on file in his court.

This being the state of the record and Allen’s petition and motion being insufficient in themselves to support the summary judgment, a reversal must be ordered as the petitioner has brought before the appellate courts all of the available record bearing upon the trial court’s action in granting the summary judgment.

We take occasion to point out that while Rule 166-A paragraph (e) carries the heading, “Form of Affidavits; Further Testimony”, such paragraph does not purport to authorize the taking of evidence in the usual sense. The term “further testimony” refers to “summary judgment testimony”, that is, testimony or evidence brought before the court by means of admissions, depositions or affidavits prepared in accordance with the rule. It is provided that, “The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits”. If at the hearing on motion for summary judgment, a party with permission of the court should desire to supplement his deposition or affidavit proof, such supplementary material should be supplied in the form of a deposition or affidavit and not by the examination of witnesses in open court. Further, while it is essential that depositions, admissions and affidavits be on file, either independently or as a part of the motion for summary judgment, the reply thereto, or some other properly filed instrument, it is not necessary that they be formally offered in evidence upon the summary judgment hearing.

It appears from the report of McFarland v. Connally, 252 S.W.2d 486 (Tex.Civ.App.1952, no wr. hist.) that the bases of the summary judgment were depositions and affidavits which were not contained in the record brought before the appellate court. This circumstance was pointed out by us in Box v. Bates, 162 Tex. 184, 346 S.W.2d 317 (1961). The McFarland case should not be construed as permitting the taking of testimony by examination of witnesses in open court or the receiving of documentary evidence in connection therewith upon a summary judgment hearing. Such hearing is not a conventional trial but the governing rules are set forth in Rule 166-A.

The judgments of the lower courts are reversed and the cause remanded generally to the 'District Court.


author: BELCHER, Commissioner.

text:
    Roy Eugene MORRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 38715.
    Court of Criminal Appeals of Texas.
    March 2, 1966.
    Rehearing Denied May 18, 1966.

      Samuel L. Egger, San Antonio, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for felony theft by false pretext; the punishment assessed was ten years.

The prior opinion dismissing the appeal is withdrawn, and the appeal is re-instated.

On February 2, 1965, the appellant, Roy Morris, and Robert Lovell sold and installed lightning rods on the residence of Inez Benham, an 82 year old widow, which she paid for by check in the sum of $196. The Benham home was located about three miles from the town of Goliad. While testifying, Mrs. Benham identified Lovell when he momentarily appeared in the courtroom as the man with appellant at her home on February 2.

About 12 o’clock noon on February 10, 1965, the appellant, Charles Fralix and K. O. Short went to the Benham home in a black pickup with a small tank in it. Ben-ham identified the appellant as the man who talked to her first, telling her that he was one of the men who installed the lightning rods, and while there he saw some insects, forgot to tell her about them, and one of the men with him wanted to spray her house. When she inquired about the charge, Fralix said the spray would be $4.50 per gallon and he could not tell how much it would take until he did the job, “So I went ahead.” During the time Allison and Short sprayed, the appellant was in and around the house. Benham testified that the time they started spraying until they stopped was about thirty or forty-five minutes. While appellant and Short sat in the pickup, A. L. Allison made out the bill in the kitchen. The man making out the bill had represented to Benham that his name was A. L. Allison, but now known to be Charles Fralix. When Benham asked how much spray he had used, Allison responded, “Three hundred gallons.” Allison then made and presented her a bill for $1,377. Benham told Allison (Fralix) that this is an enormous price, and asked him how did he know the number of gallons was used and he replied that he had a gauge on the tank. Allison prepared the check, presented it to Benham and she signed it and he left. Shortly Allison returned and said, “Lady, I have charged you twenty dollars too much. If you will give me a new check I will tear this one up.” She gave him another check for $1,357, and Allison walked to the waste paper basket and she thought he tore it up, instead he kept the check. The first check was for $1,377 payable to Allison and the second check was payable to K. O. Short for $1,357. The appellant told her his name was Cory, that he lived in Houston and had been around Victoria two weeks with his aunt. The sheriff was notified the next morning. The $1,357 check to K. O. Short was cashed February 10, before payment could be stopped, but payment on the $1,377 check was stopped.

Robert Lovell testified that he and appellant lived in San Antonio on February 10, 1965, and that appellant never lived in Victoria or Houston; and that he and appellant left San Antonio in appellant’s pickup while Fralix (Allison) and Short left in a black pickup with a 40 to 50 gallon tank in it belonging to Fralix, and that all four were travelling together; that they used about one-half of the liquid in the tank on a termite job in Beeville. While all four were staying in a motel in Victoria they talked about a termite job in that area; that appellant said Mrs. Benham “might be a good mark” for termites, and they decided to go to her house but Lovell declined, and appellant, Fralix and Short left about 10 or 11 a. m., February 10, going to Mrs. Ben-ham's. After the termite job Fralix telephoned from Goliad that the pickup wouldn’t run, and Lovell went for them, and on their return Fralix said he had $1,350 which they had gotten from Mrs. Benham; that she was an easy mark and they went back and got another check. Fralix was using the name of A. L. Allison. In Victoria Fralix divided the money four ways, giving Lovell and the appellant each $300.

After using his driver’s license which the cashier asked for as identification, K. G. Short cashed the check in Goliad, but when asked what the check was for explained that he had done some construction work for Mrs. Benham including the foundation of her home which he said was in a terrible condition due to termites.

John Cox testified that his primary business since 1955 had been termite and pest control; that his company serviced a large area and had a large volume of termite business, and he knew the standards promulgated for termite control by the Department of Agriculture; that he inspected the residence of Inez Benham on March 24, 1965, and found that it had lots of live and working termites underneath the house, and the sills were extremely damaged; there was no evidence of any recent construction or repair work on the house within the previous month; that there were no signs of any treatment for termites; and that a reasonable charge for a complete termite and pest control job for the Benham house would not be over three hundred dollars.

Testifying in his own behalf the appellant stated that he lived in San Antonio and was a self-employed painter, and had known Robert Lovell ten years, and that they had sold lightning rods to Mrs. Benham on February 2; that he left San Antonio with Lovell, Fralix, and Short about February 7; that he knew nothing about and had never engaged in the termite business; that while they were talking about termites, he said he knew a lady whose house might have termites, and Fralix asked if he would take him over there, which he did along with Short; that he was not present when the deal was made, but sat in the truck most of the time. After they left, Fralix said they had to go back which they did, and appellant and Short sat in the car until Fralix returned from the Benham home. Fralix handed Short the check saying, “You go cash this, it is under your name”; and Short entered the bank and returned after five or ten minutes. Because of car trouble, Lovell came from Victoria for them and on their return appellant first learned that they got $1,350 for the termite job. After arriving in Victoria Fralix said to appellant, “There is your part,” handing appellant $300 which he took and paid some obligations. On cross-examination the appellant testified that they did a $150 termite job in Beeville on the way to Victoria and he got $25 or $30 as his part; that there was a fifty gallon tank on the pickup and Fralix had one or two gallon jugs of extra solution; and he denied that he told Benham that he lived in Houston or that his name was Cory, or that he said Benham was an easy mark; that he never told Benham that Fralix’s name was Allison, but knew that Fralix got the check in Beeville in the name of Allison. Appellant and Lovell knew Fra-lix had a driver’s license of one A. L. Allison, and the evidence reveals that A. L. Allison lost his driver’s license on July 18, 1964, in San Antonio. After returning to San Antonio Fralix and appellant left to let things “cool off.” Appellant testified that he had no intentions of swindling Mrs. Ben-ham out of any money.

The evidence reveals that a person representing himself to be A. L. Allison deposited a $1,377 check in the Heights State Bank in Houston on March S, 196S, and exhibited a driver’s license of A. L. Allison at the time. The check was returned unpaid. Later, the same man appeared at the drive-in window and was using the name of Charles Fralix.

The appellant called several witnesses who testified that his general reputation for truth and veracity was good.

The court submitted this cause to the jury upon the law of principals.

The evidence is sufficient to warrant the jury’s finding that the appellant is guilty.

Complaint is made of the testimony given by Inez Benham at the beginning of the trial regarding the use by Fralix of the name of A. L. Allison on the ground that it was outside of the presence of the appellant, and further of the remarks of the district attorney in repeatedly using the word “conspiracy” because the indictment charged theft and not conspiracy.

Other facts and circumstances revealing these matters were later introduced in evidence. The order alone in which testimony is admitted does not affect its admissibility.

Appellant urges error in the admission in evidence: of the contract Fralix wrote out on the kitchen table; to the testimony that Fralix wrote out a check for $1,377 which Mrs. Benham signed; to the admission of the $1,377 check; to the testimony regarding the obtaining of the $1,357 check; and to the testimony of the cashier at the Goliad bank with Short; on the ground that each and all are hearsay and not admissible in evidence.

Appellant further insisted that error was committed in the admission of the testimony of Assistant Vice-President of the Heights State Bank in Houston that on March 5, 1965, a man opened an account in the name of A. L. Allison by depositing a $1,377 check drawn on the First National Bank of Goliad signed by Mrs. Benham, and this man later came to the drive-in window and gave his name as Charles Fralix. Objection was made to such testimony on the ground that it showed extraneous offenses and had no connection with the appellant.

The evidence reveals that appellant accepted twenty or thirty dollars as his share in a termite job they did in Beeville while on the way to Victoria and furnished the information that Mrs. Benham might be an easy mark for a termite job, accompanied Fralix and Short to her home and introduced Fralix, saying, “This gentleman is a termite man”; that appellant remained in and around the house until Fralix got a check,' and soon returned to Mrs. Benham’s house and waited for him; that they went to a Goliad bank where Short cashed a check and the appellant accepted three hundred dollars of the money. The testimony also reveals that in appellant’s presence after they left Goliad there was conversation that Mrs. Benham was an easy mark, that one check was made out to Allison and on going back they got another check in Short’s name. Further, when talking about splitting the money they talked about the Allison check which Fralix said he had.

The participation of the appellant in the enterprises as shown, and the $1,377 check which had not been cashed and the proceeds divided, authorizes the admission in evidence of the above matters including the testimony of the transaction at the time the $1,377 check was deposited in the Houston bank for collection. Whitehead v. State, 148 Tex.Cr.R. 190, 185 S.W.2d 725.

Error is urged on the ground that the court failed to charge on circumstantial evidence. The participation of the appellant who furnished the information leading to Mrs. Benham and his acceptance of part of the money with knowledge of its origin made it unnecessary to charge on circumstantial evidence.

Formal bill No. S relates to the sheriff having charge of the jury part of the time and testifying as a witness in the case. The sheriffs testimony only reveals that he notified the bank to stop payment on two checks given by Mrs. Benham, and in doing so learned one of them had been cashed. This bill reveals no error when considered in the light of Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424.

The other contentions presented have been considered and they do not reveal error.

The judgment is affirmed.

Opinion approved by the Court.


author: WOODLEY, Judge.

text:
    Edgar WILLIAMS et al., Appellants, v. The STATE of Texas, Appellee.
    No. 39346.
    Court of Criminal Appeals of Texas.
    March 23, 1966.
    Rehearing Denied May 18, 1966.
    C. C. Divine, Houston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

This is an appeal from a bond forfeiture.

Judgment Nisi was entered in Cause No. 89783 in Criminal District Court No. 3 of Harris County on November 15, 1963, reciting that Edgar Williams, charged by indictment in said cause, failed to appear according to the tenor and effect of his bond on file in said county; declaring the bond forfeited and ordering that the State of Texas recover of said Edgar Williams as principal, and C. C. Divine and H. G. Divine, the sureties on said bond, the sum of $500.

The sureties having answered, after hearing judgment was rendered on October 25, 1965, making the judgment nisi final.

Appeal was perfected to this Court from such final judgment of forfeiture.

The record reveals that the bond forfeited was signed, taken and approved by a deputy sheriff on December 6, 1959. It recites:

“The condition of the above obligation is such, that whereas, the above bound principal Edgar Williams has been arrested by C. V. Buster Kern, Sheriff of Harris County, Texas, on a charge of a felony, by virtue of a capias, issued to said Sheriff by R. J. Lindley, Clerk of the Criminal District Court No.-of Harris County,”

and is further conditioned for his personal appearance “instanter at the present term of the Criminal District Court No. - of Harris County, Texas, now in session,”

The bond bears the file mark of the District Clerk indicating that is was filed January 24, 1962.

The record further reflects that the indictment in Cause No. 89793 in which judgment nisi was entered was returned on December 11, 1959, which was some 5 days after the bond was entered into and approved, and bond was set at $1500.00.

In the absence of evidence sufficient to show that the bond forfeited was conditioned for Williams’ appearance to answer to the felony offense charged in the case in which the bond was forfeited, the judgment forfeiting the bond cannot stand. Picaroni v. State, Tex.Cr.App., 364 S.W.2d 240.

Unlike Picaroni v. State, we are not here dealing with a bond for the appearance of the principal before a magistrate, which may under Art. 275a Vernon’s Ann.C.C.P. become a valid obligation for his appearance to answer an indictment for the same offense in another court.

The state suggests that the bond forfeited was that granted and fixed by Justice of the Peace Ragan.

The bond does not so recite and the notations and stamps are not deemed sufficient to sustain the forfeiture on such theory.

In this connection we note that the bond was not filed in the District Court where it was forfeited until more than 2 years after it was signed and approved. The stamp on the indictment which, according to the testimony, referred to a case number in Justice of the Peace Ragan’s Court, is dated December 11, 1959, which was several days after the indictment in the case in which the bond was forfeited was presented.

The indictment was presented and filed in Criminal District Court No. 5 of Harris County and the bond was conditioned for Williams’ appearance in Criminal District Court No.-of said county.

There is no showing that a capias had not been issued for appellant’s arrest for another felony charged by indictment pending in Criminal District Court of Harris County.

The forfeiture was in Criminal District Court No. 3 of Harris County. There is nothing to show that the case against Williams was ever in Criminal District Court of Harris County and no sufficient showing that the offense for which Williams was in custody when the bond was entered into was that for which he was indicted.

The judgment is reversed and the cause remanded.


text:
    Owen Paul KORB, Appellant, v. The STATE of Texas, Appellee.
    No. 39555.
    Court of Criminal Appeals of Texas.
    May 4, 1966.

      Mike Barclay, Dallas, for appellant.
    Henry Wade, Dist. Atty., E. John Emmett, Scott Bradley, and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for driving while intoxicated; the punishment, thirty days in jail and a fine of $200.

It is undisputed that the appellant was driving an automobile upon a public highway at the time and place alleged.

The testimony of two officers reveals that immediately after they saw the appellant stop his automobile upon a parking lot they had an opportunity to talk with him, observed his actions and conduct, and smelled the odor of alcohol about him, and expressed the opinion that he was intoxicated.

The appellant testified that he drank three or four bottles of beer at his apartment ; that he drank the first beer about 4 p. m. and the others by 7:30 p. m., and after leaving his apartment he was arrested at the parking lot of the Aragon Club about 8:35 p. m.; that he was not in the physical condition as described by the officers when they approached him on the parking lot, and that he was not then under the influence of alcohol, but was nervous due to his sudden arrest.

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

In appellant’s brief he contends that, “The trial court erred in having overruled Appellant’s Motion for a Mistrial and in having admitted highly prejudicial testimony relating to conversations had with Appellant after his arrest.”

To support his contention he states in his brief that, “In the case at bar two sets of conversations, both involving the use of profanity, were sought to be admitted by the State; the conversation at the scene of the arrest, and the conversation at City Hall. It is unquestionable that Appellant was under arrest upon his turnover to the jail supervisor at City Hall; and by the admission of the arresting officer, Appellant was under arrest within minutes of having parked his car at the Aragon Ballroom.”

Officer Jones, recalled in rebuttal by the state, testified in part as follows:

“Q Did the defendant ever use any profanity at the scene, in the car, or at the pound or City Hall?
“A Yes.
“Q Would you tell us what some of these words were like?
“A He used words like s— o- b-Appellant’s Attorney: Now, if Your Honor, please, I am going to have to object to what the words were like.
“Q What were the words that he used, then?
“A G— d-,. s— o- b-, and words like that.
“Q Did he say these more than once?
“A Numerous times.
“Q Were these directed at you?
“A At times, and sometimes they were not.
“Q Would you say he used these repeatedly ? Appellant’s Attorney: Objection. The Court: That is leading.
“Q Would you tell us whether or not he used these words repeatedly?
Appellant’s Attorney: Objection.
The Court: Overruled.
Appellant’s Attorney: Exception.
“A Yes.
⅝ sfc ⅝ ⅝ s|c ⅜
“Q Will you tell us what the defendant called you as you were taking him to the pound?
“A He called me several things. He called me a s— o- b-, smart-aleck, cops, m- -f- and words like that.
“Q These words then were directed at you?
“A Yes.”

In the absence of an objection to such testimony on the ground that the appellant was under arrest at these times, the contention in light of the purported objections made did not preserve anything for review. Further, it appears that any statements made at the scene were res gestae. No error is presented. Baker v. State, 172 Tex.Cr.R. 447, 358 S.W.2d 131.

The other complaints about the use of profanity by the appellant as that complained of above were waived upon the introduction of the foregoing testimony without objection. Lowrey v. State, 163 Tex.Cr.R. 241, 290 S.W.2d 532.

The judgment is affirmed.

Opinion approved by the Court.


author: DICE, Commissioner. BELCHER, Commissioner.

text:
    Thomas BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 39215.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1966.
    Rehearing Denied April 6, 1966.
    Second Motion for Rehearing Denied May 18, 1966.
    James J. Shown, Houston (on appeal only), for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and C. A. Davis, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

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

It was shown by the state’s testimony that appellant operated The Redman’s Club on Telephone Road in the city of Houston. On the night in question, certain customers, including B. E. Meadows and Wyrie Vineyard, were in the place playing pool in a back room. Appellant was betting on the game. During the course of the game, appellant sought a loan from Vineyard, demanded that Meadows put his money on the table, and in the argument which ensued appellant produced a pistol and shot Meadows in the foot and Vineyard in the leg.

The state’s testimony further shows that while the argument between appellant and the players was in progress, the injured party and prosecuting witness, Officer Howard M. White, came to the club with his partner, Officer Sandel. They stopped at the back and could hear the argument on the inside. Officer White got out and, as he walked toward the front of the building, heard some gun shots. When he reached the front door he met a large number of people coming out, including the witness Vineyard, who told him that he had been shot and that the man who shot him was in the back room with a gun. Officer White then proceeded to the back room, armed with his .45 calibre pistol, and kicked the door in with his foot. He testified that when the door “flew open” and he was standing in the doorway, appellant, who was in the room, cursed him by calling him an “s. o. b.,” and then began firing. The officer stated that appellant fired directly at him four or five times and that he could hear the sound of the bullets passing by. He further stated that he returned the fire seven times with his .45 calibre service revolver and that after appellant had been struck several times he (appellant) fell to the floor and threw his .32 calibre pistol to one side.

Testifying as a witness in his own behalf, appellant stated that in his argument with Meadows and Vineyard he was trying to recover his own money, bet on the game, and that the shots he fired which struck them were fired towards the floor. He stated that when he heard someone kick the door he fired several shots at the floor and did not fire at the officer standing in the doorway. He further denied any intention to kill anyone.

The jury by their verdict rejected appellant’s version of the assault, and we find the evidence sufficient to sustain the judgment of conviction.

Appellant insists that the judgment should be reversed and the cause remanded for another trial because of newly discovered evidence.

Following the jury’s verdict, appellant filed an original and an amended motion for new trial. In the amended motion which he also designated as his writ of “ ‘error coram nobis’ ” appellant alleged newly discovered evidence as a ground for new trial. The affidavit of Ray Webster was attached to the motion, in which the affiant stated — in substance — that he witnessed the shooting and that the officer was not standing in the doorway at the time of the shooting but was firing around the door.

The motion for new trial was overruled by operation of law, and no evidence was presented by appellant in support of the same. Under the holdings of this court the motion is a mere pleading and does not prove itself. Polk v. State, 172 Tex.Cr.R. 211, 355 S.W.2d 712; Flores v. State, 172 Tex.Cr.R. 73, 353 S.W.2d 852.

There is no proof that any testimony was submitted to the jury which the prosecution knew to be false, and the case of Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9, Alcorta v. State of Texas, Tex.Cr.App., 308 S.W.2d 519, is not here applicable.

Nor is there any proof that appellant has been denied due process of law, as in Ex parte Bush, 166 Tex.Cr.R. 259, 313 S.W.2d 287, upon which he also relies.

The judgment is affirmed.

Opinion approved by the court.

ON APPELLANT’S MOTION FOR REHEARING

BELCHER, Commissioner.

According to the testimony of the witness Meadows the bullet “hit the side of my boot, just cut the side of my boot,” instead of striking him in the foot, as stated in our original opinion. This variance does not affect the original disposition.

The other contentions re-urged have been considered and they do not present error.

The motion is overruled.

Opinion approved by the court.


author: DICE, Commissioner.

text:
    Charles William ALEXANDER, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 39424.
    Court of Criminal Appeals of Texas.
    May 4, 1966.

      Wm. V. Brown, Jr., Texarkana, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The record having been perfected, the opinion dismissing the appeal is withdrawn and the appeal is reinstated.

The offense is fondling; the punishment, one year in jail.

Trial was in the Eighth Judicial District Court of Delta County upon a change of venue from Hopkins County.

The conviction was under the second count of the indictment, which charged that on or about the 27th day of February, 1965, the appellant did unlawfully and with lascivious intent knowingly and intentionally place a part of his hand upon the breast of the female named therein who was then and there under the age of fourteen (14) years.

It was shown by the state’s testimony that the injured party, eleven years of age on the date the offense was alleged to have been committed, lived with her parents in the city of Dallas. On a Saturday in February, 1965, she accompanied her parents to their farm near Posey, in Hopkins County, to spend the weekend. Later in the day appellant and his wife and baby came to the farm. Appellant’s wife was a sister of the injured party.

The injured party testified that late in the afternoon, at appellant’s suggestion, she accompanied him to a pool on the farm to check some fishing lines. She stated that they went in appellant’s automobile and that after appellant had checked the lines they got back in the automobile and appellant kissed her. At the time, she could feel appellant’s tongue and he said, “This is the way to kiss.” She testified that appellant then ran his hand up under her blouse and put his hand on her breast and then put his hand on her private part. She stated that after she and appellant returned to the trailer house on the farm, where the families were spending the night, she reported the incident to her mother and sister.

Mrs. Oma Faye Glosup, mother of the injured party, testified that after appellant and her daughter returned from the pond to the trailer house the daughter said, “ ‘I know something that, [sic] about Charlie, and something about kissing’ ”; that she (the witness) “didn’t understand it all and it flew all over me at the time * * * ”; that she did not tell her husband until Sunday night because “If I had told him then he [appellant] would have been a dead man.” Mrs. Glosup further testified that on the date of the trial the injured party, then twelve years of age, had matured slightly as a woman but on the date of the offense she had not.

It was further shown that on June 17, 1965, appellant made and signed a written confession to District Attorney Cameron McKinney which, excepting certain portions, was introduced in evidence as state’s exhibit #1.

Prior to admitting the exhibit in evidence a hearing was held by the court, in the absence of the jury, relative to the execution and voluntary nature of the confession. At such hearing District Attorney McKinney testified that appellant was duly warned prior to making and signing the confession; that when asked if he wanted an attorney present appellant stated he did not; and that before signing the statement appellant was given the opportunity to, and did, read it.

Appellant testified that he was not given the statutory warning; that the district attorney threatened to make it “rough and tough” on him if he did not sign the statement, threatened to “give me fifteen years” , and he (the district attorney) stated that he was the “meanest, roughest district attorney in Texas.”

Appellant further repudiated the incriminating portions of the confession and swore that he was not told he could have an attorney until after he had signed the statement.

District Attorney McKinney denied that he made the threats testified to by appellant and specifically denied making the statement that he was the meanest and toughest prosecuting attorney in the state.

At the conclusion of the hearing, the trial court made an independent finding, duly entered of record as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, and Lopez v. State, Tex.Cr.App., 384 S.W.2d 345, that the confession was freely and voluntarily made by appellant after having been duly warned. The court further found that before making the statement appellant “made a knowledgeable and intelligent waiver of his right to legal counsel * *

In the confession appellant related, in part, as follows:

“On Saturday, February 27, 1965, about sundown or dusky dark, I would guess the time was about 6:00 p. m., I kissed Faye Glosup on her cheek near her mouth and I touched her breasts with my right hand. I did this last through her blouse. * * * At the time I did this with her breasts, we were fishing at a lake in or near the Posey community and this is in Hopkins County, Texas * * * I have never played with Faye’s private part but one time; this occurred at my last residence address on Military Parkway in Dallas, Texas_and this occurred on a Sunday about three or four weeks before this out here occurred * * *. » ⅜ ⅝ ‡
“I know about my rights to get in touch with a lawyer and talk with him about all my rights. I do not want to do this and waived this right at this time * * * >’

Under the record, the court did not err in admitting the confession in evidence. That portion of the confession which referred to appellant’s prior act of fondling the injured party was admissible as evidencing the probability of the act charged and the unnaturalness of appellant’s attitude toward the victim 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 did not testify before the jury or call any witnesses in his behalf.

We first overrule appellant’s contention that the sentence pronounced by the court is void for indefiniteness because the place of confinement is not stated therein and because the jury’s verdict assessed his punishment at confinement “in the County Jail for One Year from this date Nov. 30, 1965,” and the judgment and sentence ordered that he be punished by confinement in the county jail for a “term of not less than 1 year nor more than 1 year.”

The verdict, judgment, and sentence fixed the county jail as the place of appellant’s confinement. This was sufficiently definite, without designating the particular jail. In Jabalie v. State, 128 Tex.Cr.R. 412, 81 S.W.2d 509, a jury verdict which—unlike the one in the present case — failed to designate the place of confinement was held sufficiently definite when the only place of confinement authorized by the statute was the county jail.

The question of credit, if any, for the time appellant has spent in jail pending appeal is within the discretion of the trial judge. Art. 42.03, Vernon’s Ann.C.C.P.

We also overrule appellant’s contention that the evidence is insufficient to support the conviction because the proof shows that the injured female did not have a “breast.”

Seven formal bills of exception appear in the record, which were by the court refused, with the reasons noted thereon. Appellant did not agree to the court’s reasons for refusing the bills and filed no bystanders’ bills.

Under the record, the bills cannot be considered. Lacy v. State, Tex.Cr.App., 374 S.W.2d 244; Holley v. State, Tex.Cr.App., 366 S.W.2d 570; Perez v. State, Tex.Cr.App., 396 S.W.2d 870.

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

Opinion approved by the court.


author: McDONALD, Presiding Judge.

text:
    Tommy GLASS, Appellant, v. The STATE of Texas, Appellee.
    No. 39084.
    Court of Criminal Appeals of Texas.
    March 23, 1966.
    Rehearing Denied May 18, 1966.
    Meto Miteff (on appeal only), Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., John A. Brady and Truman Power, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is murder with malice aforethought; the punishment, fifty (50) years confinement in the Texas Department of Corrections.

Appellant was found guilty of murdering his wife, who, as stipulated by both parties, met her death as a result of a gunshot wound which entered her chest in the vicinity of her heart.

The evidence adduced by the state was circumstantial, and consisted in part of oral statements made by appellant to a police officer during the course of the investigation of the deceased’s death.

In response to the officer’s question as to what had happened, appellant stated that he and his wife were alone in their house, and that she became angry and fired a shot from a rifle at him, then threatened to take her own life. He stated that he had not believed her and had directed his attention to the television set when he heard a second shot. He turned and found her lying on the couch, and she did not respond when he called her name. At the scene of the death, appellant pointed out to investigating officers the manner in which the alleged suicide had occurred.

As the investigation progressed, inconsistencies developed between the physical facts and appellant’s version of events. The deceased was shot with a rifle, yet experts testified that if the deceased shot herself, powder burns would almost certainty have been found on her body. None were found. In the opinion of an expert criminologist, the rifle had been wiped clean of fingerprints. From measurements taken at the scene, it appeared that the two shots described by appellant could not have been fired from the position he indicated. There was evidence of a scuffle. Two strands of beads were found on the floor of the room; one of them was broken and the other had a damaged clasp. A button from the deceased’s blouse was found near the body. The deceased had a fresh bruise on her chest which roughly matched the size and shape of the butt of the rifle. Expert testimony developed that this bruise had to have been inflicted very shortly before her death. The deceased was found with the rifle leaning against her outstretched arm as she lay on the couch, but the evidence tended to show that the rifle had been placed there sometime after death occurred, and that the arm, at the time the deceased was shot, had been held in front of her in a protective position. From blood stains on the body, it appeared that the arm had been positioned after death and after some of the blood had dried.

It was shown that the deceased had stayed with relatives and had not lived at home with her husband for about one week preceding her death, and there was testimony that, about two days before the killing, appellant had threatened “to take care of her” and to “put her out of her misery.” There was also testimony that appellant was slightly intoxicated during the time of the investigation.

Appellant did not testify or produce any affirmative evidence which tended to show that he did not commit the offense, and we find the evidence sufficient to sustain the conviction.

Appellant strenuously objected to the admission into evidence of his oral statements, the context of which is set out above. It is his contention that these statements were made while he was under arrest; that they were used by the state for the purpose of securing his conviction; and that they were therefore inadmissible because not elicited in accordance with the provisions of Article 727, Vernon’s Ann.C.C.P'., the confession statute then in effect.

The evidence shows that the police were summoned shortly after 2:00 a. m. by a Mr. Dan Peters after appellant went to Peters’ home and notified that witness of the shooting. After Peters’ telephone call, two police officers were dispatched to investigate the reported suicide. Peters immediately took appellant back to the scene of the killing and appellant went into the house for a few minutes. He was next seen by Chief of Police W. M. Sustaire at the police station, where he made the statements of which he now complains. This was at about 3:00 a. m., while the investigation was still in its early stages. The Chief and appellant then went back to the scene, where appellant described what had happened. Chief Sustaire testified that at the time these statements were made, the shooting had been reported to him as a suicide; that the investigation then being conducted was the investigation of a suicide; that, at that time, he had no intention of arresting appellant; that appellant’s presence was desired because he was a material witness to the reported suicide, but that he could have left at any time, had he chosen to do so. Later in the morning appellant was seen by a witness in the police station with no officers present. He could have gone out the Back door of the police station with no resistance from the police. Still later, he went across the street and had breakfast with a civilian employee of the city, unaccompanied by any police officer. The autopsy report, tending to show that the wound was not self-inflicted, was received by Chief Sustaire at approximately 11:00 a. m., and it was only then that that officer ordered appellant arrested. After that time appellant had his noon meal at the same restaurant where he had breakfast earlier that day, but this time he was in the custody of an armed officer. The testimony of other officers indicated that they did not arrest appellant and did not believe appellant was under arrest prior to 11:00 on the morning after the killing.

The able trial judge conducted a hearing out of the presence of the jury to ascertain whether appellant was under arrest when his oral statements were made. Most of the 500-page statement of facts contains testimony directed at a determination of this issue. A careful study of all this testimony leads us to the conclusion that there is ample support for the ruling of the trial judge that appellant’s statements were admissible because he was not under arrest at that time and had no cause to believe he was arrested. It appears that the oral statements of appellant were made at a time when the authorities were investigating an alleged suicide.

A taxicab driver testified that he had taken the deceased to the address where the homicide took place, earlier in the evening, after first stopping at a liquor store and purchasing a bottle of liquor for her. When asked on cross-examination why he had bought a pint bottle of whiskey rather than some other size container, the witness was allowed to testify over appellant’s objection that, “She told me that is what her husband requested that she bring with her.”

Appellant urges that the trial court’s action in admitting this testimony into evidence was error because the statement was hearsay and led the jury to believe that appellant was “a person of bad drinking and reputation.” We agree that the testimony was hearsay, but fail to see that appellant was prejudiced by its admission into evidence. Elsewhere in the record was evidence that appellant was slightly intoxicated that night; that there was a larger bottle of liquor found at the scene of the killing which was apparently not brought there by the deceased that night; and that appellant was, and had been for sometime, a heavy drinker. All this evidence was either elicited by appellant’s counsel or adduced by the state without proper objection by appellant. Under these circumstances, even if the jury did believe that the pint bottle of whiskey was purchased at the direction of, and for the use of, appellant, it is not reasonable to assume that this knowledge would alter their opinion of his character. The error was harmless.

We find no reversible error in appellant’s other informal bills of exception, and the judgment is affirmed.


author: MORRISON, Judge.

text:
    Wayne STEVENSON, Appellant, v. The STATE of Texas, Appellee.
    No. 39350.
    Court of Criminal Appeals of Texas.
    March 9, 1966.
    Rehearing Denied May 4, 1966.

      Percy Foreman, Houston, Luther E. Jones, Jr., Corpus Christi, for appellant.
    Carol S. Vance, Dist. Atty., Ted Hirtz and Joe C. Shaffer, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is negligent homicide in the second degree; the punishment, two years in jail.

The State’s evidence reflects that on the night of September 8, 1964, a 1958 Chevrolet, driven by Howard Glover and containing three other passengers, was proceeding in a westerly direction along Tidwell Road in Houston. A 1963 Chevrolet driven by the appellant was proceeding east on Tid-well in a 35 mile per hour zone at a speed estimated by an eyewitness as between 50 and 60 miles per hour. The appellant’s car began to weave across the highway into the westbound lane where it struck the Glover automobile. Barbara Manning, a passenger in the Glover automobile was killed as a result of the collision, as was another passenger therein; it was for her death that appellant was charged. Appellant was found on the floorboard of his vehicle, his breath smelling strongly of alcohol. Two broken bottles of beer were also found in his automobile.

The appellant, testifying in his own behalf, stated that he had taken six plasadil tablets on the afternoon of the day in question and remembered nothing of the collision. When asked if he could have consumed any beer, he stated, “I might have drank a gallon of it,” and later stated “I might have drank two gallons-.”

Dr. Barnhart, who had treated the appellant for a prior back injury, testified that on the afternoon of September 8, 1964, he had given the appellant a prescription for equanil and plasadil tablets, both of which are tranquilizer drugs. In addition, he stated that he had on that occasion given the appellant three sample capsules of plasadil.

Pharmacist Jeu testified that she filled the prescription on September 8, 1964.

The appellant’s aunt, with whom he lived, testified that late in the afternoon of the day in question he had a glassy look in his eye and was nervous, but otherwise appeared normal.

The sole contention of the appellant relates to the failure of the trial court to give his requested charge relating to his culpability if the jury found that he was under the influence of medication and drugs voluntarily taken.

The date of the judgment in this cause was August 19, 1965. The law in force at the time of the rendition of the judgment and entry of notice of appeal furnishes the rule by which an appeal in a criminal case is governed. Neal v. State (Moore v. State), Tex.Cr.App., 400 S.W.2d 550.

We find no exception taken to the trial court’s refusal to give the requested charge, hence it is not before this Court for review. Lewis v. State, Tex.Cr.App., 367 S.W.2d 692, and Green v. State, Tex.Cr.App., 363 S.W.2d 461.

Finding the evidence sufficient to support the conviction under an information charging that appellant drove his motor vehicle at a speed that was not reasonable and prudent and failed to guide his motor vehicle away from and- failed to keep a proper lookout for a motor vehicle occupied by deceased while unlawfully driving on the left hand side of the highway, and no reversible error appearing, the judgment is affirmed.


text:
    James MUMPHREY, Appellant, v. The STATE of Texas, Appellee.
    No. 39463.
    Court of Criminal Appeals of Texas.
    May 4, 1966.
    Odom & Allen, by Leonard C. Craig, Tyler, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for arson; the punishment, two years.

No notice of appeal is contained- in the record, as required by Art. 827, Vernon’s Ann.C.C.P.; Oehlers v. State, Tex.Cr.App., 367 S.W.2d 672; Monrreal v. State, Tex.Cr.App., 368 S.W.2d 948. In the absence of such notice this Court has no jurisdiction.

The appeal is dismissed.

Opinion approved by the Court.


text:
    Willie STEVENS, Appellant, v. The STATE of Texas, Appellee.
    No. 39584.
    Court of Criminal Appeals of Texas.
    May 4, 1966.
    No attorney of record on appeal.
    Henry Wade, Dist. Atty., W. John Allison, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is the unlawful sale of whiskey in a wet area without a permit or license, two prior convictions for a like offense being alleged for enhancement of punishment purposes; the punishment, one year in jail and a fine of $500.

The statement of facts approved by the trial judge reveals no proof to sustain the allegation of the complaint and information that Willie Stevens made the sale “without first having procured a License or Permit to sell such liquor from the Texas Liquor Control Board, or from the Administrator of such Board.” It follows that the evidence is insufficient to sustain the conviction.

The judgment is reversed and the cause remanded.


text:
    Robert Tillman DUGGER, Appellant, v. The STATE of Texas, Appellee.
    No. 39171.
    Court of Criminal Appeals of Texas.
    March 3, 1966.
    Rehearing Denied May 4, 1966.

      Maloney, Milner & McDowell, by Pat McDowell (on appeal only), Dallas, for appellant.
    Henry Wade, Dist. Atty., Tom F. Reese, John Vance and W. John Allison, J.r., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is burglary; the punishment, enhanced by a previous burglary conviction, 12 years in the penitentiary.

The prior conviction was properly alleged and proved.

John Villbig testified that he left his residence at about 10:30 a. m. on August 25,1964; that no one was in the house when he left; and that all doors to the house were shut. His wife returned home at about 1 p. m. and found the back door open. It was discovered that someone had taken various items of personal property from the house during the Villbigs’ absence, including a television set, a .22 calibre blank pistol, two watches, a jewelry box, and certain pieces of jewelry. No one had permission to be in the Villbigs’ house in their absence, nor did anyone have permission to take the above items from the house.

That afternoon, the television set was pawned at the Preston Jewelry and Loan Company by an unidentified man who had a scar on his arm which was in the shape of a “Z”. The man' borrowed $15, giving the television set as security. The police learned of this transaction through a routine report made by the loan company, and about two days after the burglary, Mrs. Villbig reclaimed the set, identifying it as the one taken during the burglary.

On September 14, Detective J. E. Walker of the Dallas Police Department Vice Section was on duty in his police car when he heard a wanted bulletin broadcast by the police radio dispatcher, the subject of which was a white male in his 20’s, brown colored hair, with a scar on his arm in the shape of a “Z” and identified by the name, Zorro. The wanted car was described as a Ford automobile with a specified license number. Shortly thereafter, he observed an automobile matching the description above drive into a parking lot, and the officer followed and interrogated appellant, the driver of that automobile, who matched the description of the subject of the wanted bulletin, then arrested him and took him to City Hall, where he was booked and then taken to the Burglary and Theft Bureau. On cross-examination, the arresting officer admitted that appellant was breaking no law at the time of his arrest and that the officer had no warrant for the arrest. The automobile appellant was driving when first observed by the arresting officer was impounded.

The following day, while being interrogated by Officers Waters and Jennings of the Burglary and Theft Bureau, appellant told the officers that there was a jewelry box and jewelry in the automobile he had been driving and that the property had come from the Villbig residence burglary. Officer Jennings went to the automobile pound, searched the car, and found the described property below the left tail light where appellant said it would be. He also found a .22 calibre blank pistol which, along with most of the jewelry, was identified by the Villbigs as property taken from their home on the date of the burglary. The officers had no warrant to search the automobile.

Appellant contends that his arrest was illegal; that he was not taken immediately before a magistrate; that the search of the automobile was unlawful; and that the fruits of that search were therefore inadmissible.

Under this Court’s interpretations of the Code of Criminal Procedure, 1925, which is the statutory law applicable to this case, an illegal arrest would not render inadmissible evidence obtained thereafter if the detention following that arrest was lawful. Benitez v. State, Tex.Cr.App., 377 S.W.2d 651, and cases cited therein. Considering the singularly distinguishing scar on appellant’s right arm, and the fact that the person who pawned the Villbigs’ television set was similarly marked, the police had reasonable grounds for appellant’s detention. Failure to take appellant before a magistrate likewise would not vitiate his oral statements and thereby render inadmissible the fruit of the search resulting from these statements unless there was a causal connection between this failure and the fact that such statements were made. Ferrell v. State, Tex.Cr.App., 397 S.W.2d 86, Smith v. State, 171 Tex.Cr.R. 313, 350 S.W.2d 344.

Appellant’s oral statements made while he was under arrest concerning the whereabouts of part of the stolen property, and his knowledge that this property was part of that taken in the Villbig burglary were admissible, these statements having led directly to the recovery of the stolen property. Article 727, Vernon’s Ann.C.C.P., then in effect; Thompson v. State, Tex.Cr.App., 398 S.W.2d 942, opinion delivered February 16, 1966; Henderson v. State, 172 Tex.Cr.R. 75, 353 S.W.2d 226. The information gained by the officer gave him probable cause to search the trunk of the automobile. Thompson v. State, supra; Ponder v. State, 159 Tex.Cr.R. 585, 265 S.W.2d 836.

Appellant questions the sufficiency of the evidence. He states that no one was able to place him at the scene of the burglary, and he contends that the evidence was insufficient to show that he was in possession of the property, as he was not positively identified as the man who pawned the stolen television set, nor was he identified as the owner of the vehicle in which the other stolen property was found. These facts are true, but the record does show that a man with a “Z” scar pawned the Villbig television set; that appellant has a similarly described scar; that appellant was driving the automobile in which the stolen property was found and it was not shown that anyone else was connected' with this vehicle; that appellant directed the officers to the very spot in the automobile where the stolen property was stashed; and that he was aware that the property was part of that taken in the Villbig burglary. He also discussed with the investigating officers his reasons for not taking other items in the Villbig residence. These facts are sufficient to support the jury’s verdict of guilty.

We find no merit to appellant’s remaining informal bills of exception.

The judgment is affirmed.