text:
    Alfred JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 40977.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1968.
    Alfred J. Bonner, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Malcolm R. Dimmitt, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is robbery by assault; the punishment, enchanced under Art. 62 P.C. by a prior conviction for assault with intent to rob, life.

Three grounds of error are set forth in appellant’s brief. The first two relate to testimony of state’s witness H. C. Mackey, on redirect examination, in which he related to the jury a conversation with Billy Earl Clayton in appellant’s absence over objection that such testimony was hearsay.

Billy Earl Clayton, a co-defendant, captured at the scene of the robbery, was identified by the victim Paul Carollo at the lineup the night of the robbery.

On cross-examination appellant’s counsel elicited from the state’s witness Detective Mackey the following testimony:

“Q. All right. Billy Earl Clayton gave you the name of Charles Hanks as being the other person who had committed this robbery, did he not?
“A. He later repudiated that, sir.
“Q. All right, sir. But he gave it to you in this statement—
“A. That’s right, sir.”

A portion of the statement of Billy Earl Clayton was identified by the wintess and introduced as defendant’s Exhibit No. 1. Asked if it was the only statement Clayton gave him, Officer Mackey testified: “Yes sir. He refused to make another one to straighten that out, sir.”

On redirect examination Officer Mackey was permitted to testify, over objection that it was hearsay, that in a further conversation with him Clayton stated that there was no such person as Charles Hanks; that “he was trying to protect Alfred Jackson (the appellant) and Alfred was the one.”

The trial court did not err in holding that the testimony of Officer Mackey on redirect examination was admissible under the provision of Art. 38.24 Vernon’s Ann.C.C.P. which reads:

“When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood or to explain the same may also be given in evidence.”

Hill v. State, 123 Tex.Cr.R. 552, 59 S.W.2d 411; Ringer v. State, 139 Tex.Cr.R. 312, 139 S.W.2d 583; McEntire v. State, 143 Tex.Cr.R. 631, 160 S.W.2d 961. See also Earnest v. State, 83 Tex.Cr.R. 257, 202 S.W. 739; Bolin v. State, 83 Tex.Cr.R. 590, 204 S.W. 335; Flores v. State, 88 Tex.Cr.R. 349, 227 S.W. 320; Johnson v. State, Tex.Cr. App., 378 S.W.2d 76; and Lee v. State, 170 Tex.Cr.R. 566, 342 S.W.2d 753.

Officer Mackey further testified on redirect examination that investigation was made concerning the statement of Billy Earl Clayton and that no person by the name of Charles Hanks was found, and that no investigation concerning any other person than Charles Hanks, Alfred Jackson (appellant), Billy Earl Clayton and one Willie Allen was conducted and no charges were filed against any person other than Clayton and appellant. Appellant’s ground of error No. 3 complaining of the admission of such testimony over his objection that it was hearsay shows no reversible error and is overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: BELCHER, Judge.

license: Public Domain

text:
    Lloyd Wilson PALMER, Appellant, v. The STATE of Texas, Appellee.
    No. 41004.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1968.

      James B. Zimmermann, Dallas, on appeal only, for appellant.
    Henry Wade, Dist. Atty., Scott Bradley, David Johnson and William Mason, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

Following the state’s request to strike the firearm allegation in the indictment, which was granted by the court, the appellant, upon a trial before a jury, entered a plea of guilty to the offense of robbery, and his punishment was assessed at life.

The appellant timely filed his application for probation, and his request for the same was submitted to the jury.

As ground for reversal, the appellant contends that the prosecutor committed material error calculated to injure the rights of the appellant in his direct and re-direct examination of Officer Anderton, a state’s witness.

Officer Anderton testified that he was acquainted with and that the appellant bore a bad reputation for being a peaceable and law abiding citizen in his (appellant’s) community.

On cross-examination, Anderton testified that he knew of appellant’s trouble with some checks and a theft case.

On re-direct, Anderton testified that he knew that appellant received a three-year probated sentence in Oklahoma for interstate transportation of a stolen motor vehicle; that he knew that appellant, on the night of the instant robbery, stole a Cadillac from Mrs. Schwartz at the point of a gun; that he had heard that appellant was arrested in 1964 for theft of an airplane; and he also heard that he was arrested in May, 1966, for illegally carrying a pistol.

No objections were made to the admission of the above testimony.

The testimony about the checks and the theft case was first inquired about by the appellant.

Further, the testimony was admissible as a part of the appellant’s prior criminal record on the issue of punishment. Rojas v. State, Tex.Cr.App., 404 S.W.2d 30.

Error is urged on the ground that when appellant’s attorney, during his argument to the jury, was referring to appellant’s companions, saying that he understood that one was still on the “run,” and the others had been tried but he was not sure, the prosecutor spoke aloud the word “life,” which was so inflammatory and prejudicial that no instruction by the court could have cured the error.

Whether the prosecutor used the word “life” as the appellant contends is in dispute.

The word “life” was used according to the court reporter’s transcript of the argument, and said transcript is approved by appellant’s counsel. The prosecutor approved said transcript except for the use of the word “life,” and states that he used the word “right.” The court certified that he is unable to remember whether the word “right” or “life” was used.

According to the record, no objection was made to the use of the word “life” if it was used. No motion for mistrial was made at that time. In light of the record, it is concluded that no reversible error is presented.

The other grounds of error urged for reversal complain of the state’s closing argument to the jury.

The appellant submits the following arguments of the state in his brief as improper:

“ * * * had it not been for the fact that that patrolman was nearby and went to the scene almost immediately, I assure you that there would have been some horrible happening to the Dooleys, and I assure you there would not have been a trial, in all probability, there probably would not have been any witnesses to testify.
“Now, I don’t know what they were going to do with these chains and locks but I will submit to you that from the facts of this case, there is good evidence that they would have chained these people up, maybe chained Mrs. Dooley up and tortured her until Mr. Dooley had gone to the bank to get them more money—
“Mr. Fowler (Appellant’s Counsel): Now, your Honor — now, your Honor, we are going to object to this; there is nothing in the testimony about torture or anything of that kind.
“The Court: Sustain it.
“Mr. Fowler: We ask that it be stricken from the record.
“The Court: I sustained it, and disregard it, ladies and gentlemen of the jury.
******
“(By State’s Counsel): * * * we haven’t asked the jury to keep him down there for life, put him away for life, we haven’t asked you to keep him down there, all we have asked you to do is return a sentence, set a sentence of 99 years or life.
“Now, Mr. Fowler talked about him being rehabilitated, I will tell you the folks that the only way that he will have served enough time that he could possibly be rehabilitated in this state is for you to return a sentence of 99 years or life.
“Now, if you want to do something for the man, if you think he is capable of being rehabilitated then you return a sentence of 99 or life, and I assure you, from the bottom of my heart, that that is the only way that he will be rehabilitated, that is the only way that he will have served enough time that when he comes back that he will be rehabilitated, and you have my word on that.
“Mr. Fowler has told you about this man running around with police characters, well, this is a regular little Orphan Annie we have got here, isn’t it? I suppose he wouldn’t call this man a police character.”

No objections were made to the above four paragraphs of argument.

For the defense, the appellant, personally, made the opening argument to the jury. Among other things, the appellant told the jury that all the testimony was true, and he would not attempt to justify the wrong he had done, that he would do his best to live up to a probated sentence, and asked for their mercy.

Next, appellant’s attorneys presented their argument to the jury.

The closing argument complained of has been carefully considered in light of the objections made, the court’s rulings, the plea of guilty, the jury argument of the appellant, along with the testimony, and it is concluded that it presents no error.

The judgment is affirmed.


text:
    Olson Clifford ALLISON, Appellant, v. The STATE of Texas, Appellee.
    No. 40988.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1968.

      Lee Nowlin, Frank Gaston, Plainview, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for the subsequent offense of driving while intoxicated; the punishment, two years in the Department of Corrections.

The imposition of sentence was suspended by the court and appellant was placed on probation.

This is an appeal from the judgment of conviction at the time appellant was placed on probation. Art. 42.12, Sec. 8, Vernon’s Ann.C.C.P.

As grounds for reversal, the appellant contends that the trial court erred in admitting in evidence the complaint, information, and judgment in the prior alleged conviction, and also in admitting a certified copy of his driver’s license record. To the admission of said evidence, he objected on the ground that no proper predicate had been laid; that there is a variance between the date of the judgment of conviction and the date of the judgment shown in the driving record; that the alleged prior judgment was not final; and that the proper identification of the appellant was not made.

An examination of the record evidence reveals that it was properly authenticated to authorize its admission in evidence. Art. 3731a, Vernon’s Ann.Civ.St.

The indictment alleges that the prior conviction was had on September 20, 1948. The driving record shows that the date of the offense was September 19, 1948. The prior judgment of conviction as well as the driving record shows that the alleged prior judgment of conviction was had September 20, 1948. There is no variance.

The complaint in the record of the state’s demand of the appellant to produce his driver’s license or secondary evidence would be offered to make such proof will be considered as unassigned error. Art. 40.-09, Sec. 13, C.C.P.

In the presence of the jury while the state was making out its case in chief, the district attorney made demand of the appellant to produce his driver’s license or secondary proof thereof would be offered.

The appellant objected to such demand on the ground that it called for him to testify and offer evidence against himself, and moved the court to instruct the jury not to consider it.

The court sustained the objection and instructed the jury to disregard the demand for any purpose.

Next, Officer Nichols, having testified that the appellant delivered to him his driver’s license at the scene, further testified, without objection, to the number of the Texas Commercial Operator’s License, address, date of birth, and the physical description shown thereon including height, weight, color of hair and eyes.

The duly authenticated driving record of Olson Clifford Allison was introduced in evidence. This record contains the same information and data as shown by the testimony of Officer Nichols.

The appellant did not testify, but called his wife as a witness, and she testified that he was Olson Clifford Allison, “the defendant in this case.”

In light of the court’s action in sustaining appellant’s objection and instructing the jury not to consider the demand, Officer Nichols’ testimony, and the driving record, no reversible error is shown.

The failure of the proof to identify the appellant as the defendant in the alleged prior conviction is urged as a ground of error.

The testimony of Officer Nichols, that of appellant’s wife, and the driving record which included the physical description of the appellant, was sufficient to authorize the jury’s finding that he was the person previously convicted as alleged. Gregg v. State, 339 S.W.2d 539, 170 Tex.Cr.R. 202; Chamblee v. State, Tex.Cr.App., 376 S.W.2d 757.

Another ground presented as error is that the state failed to prove the finality of the judgment in the alleged prior conviction. If said prior conviction was not final, it became a matter of defense subject to proof. In the absence of such proof, no error is shown. Whiddon v. State, 160 Tex.Cr.R. 23, 266 S.W.2d 167.

The judgment is affirmed.


text:
    Ex parte Ronald SHORT, alias Gary Donnelly.
    No. 40975.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1968.
    George C. Thompson, Jr., Fort Worth, for appellant.
    Frank Coffey, Dist. Atty., R. W. Cramp-ton, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

This is an appeal from an order entered in a habeas corpus proceeding remanding appellant to custody for extradition to the State of Illinois.

At the habeas corpus hearing, the state introduced the executive warrant issued by the Governor of Texas. The warrant recites that the appellant stands charged by complaint, warrant, and supporting papers before the proper authorities, with the crime of murder committed in Illinois. The warrant further recites that the Illinois demand is accompanied by authenticated copies of said complaint, warrant, and supporting papers.

The executive warrant of the Governor of Texas, which appears regular on its face, made out a prima facie case authorizing the remand of appellant to custody for extradition. Ex parte Fant, Tex.Cr. App., 400 S.W.2d 332; Ex parte Thompson, Tex.Cr.App., 420 S.W.2d 709.

No question of identity is presented as to the appellant being the person named in the executive warrant of the Governor of Texas.

As ground for discharge, the appellant contends that he introduced sufficient evidence to overcome the prima facie case made by the extradition warrant that he was in Illinois when the alleged murder was committed.

The appellant did not testify but called witnesses Rohan, Donnelly, D’Viella, and Caplen in support of his contention.

Officer Rohan of Chicago, a police officer, testified that about 11 a.m., Friday, October 22, 1965, he saw the body of the deceased in a hotel room in Chicago, Illinois ; that his death was caused by multiple stab wounds in the left chest; and that it was determined that he had died between 2 a.m., and 10:20 a.m., October 22, 1965.

Delores D’Viella testified that she was the switchboard operator in the Chicago hotel where the body of the deceased was found; that her hours of employment were from 8 a.m., to 4 p.m., and that she was on duty during those hours on Thursday, October 21, 1965. On cross-examination, she identified the appellant as the person she saw in the lobby of the hotel with the deceased’s dogs about 10 a.m., October 21, 1965; and that she had seen The appellant two or three times before that date.

Shirley Caplen testified that she lived in an apartment next to that of the appellant in an apartment house in Kansas City, Missouri ; that she saw the appellant on Thursday morning, October 21, 1965, and again about 5:10 p.m., that day, and last saw him that day about 11 p.m.; and that she next saw the appellant Friday morning about 7 a.m., then about 5 p.m., that day, and again Saturday morning; and that she heard about deceased’s death Saturday morning, October 23, 1965.

Jerry Patrick Donnelly testified that he and the appellant lived together in an apartment in Kansas City; that he drove the appellant to work about 7:45 a.m., October 21, 1965, and picked him up after work that day and they returned to the apartment and ate dinner; that after watching television for a brief time, the appellant visited Shirley Caplen in her apartment, and returned to their apartment about 11 p.m., Thursday, October 21, 1965, where they spent the night; that he took the appellant to his place of employment about 8 a.m., Friday morning, and next saw him about 4:30 p.m., October 22, 1965; and they heard about deceased’s death the next morning, Saturday, October 23, 1965.

In rebuttal, the state called James J. Strickland, an area representative of an airline in Fort Worth, who testified that he was familiar with the Chicago airport but not the one in Kansas City; and that he was generally familiar with the flight schedules between Chicago and Kansas City, Missouri. Testifying from a book of flight schedules, Strickland stated that according to the book there were flights from Kansas City to Chicago at 7:45 a.m., and 8:00, 8:20, 9:30, and 10:15 a.m., and at 7:15 p.m., and 8:40 p.m.; that the flights from Chicago to Kansas City were at 12:10 a.m., 12:50, and 3-:50 a.m. He further testified that, according to the information in the book, a flight originating by limousine in downtown Kansas City to Chicago, or, vice versa, was “quite possible” or “could be done” in two hours and forty-five minutes, assuming there was a flight available.

Although, the deceased may have died between 2 a.m., and 10:20 a.m., October 22, 1965, the evidence offered by the appellant is not sufficient to overcome the presumption raised by the extradition warrant that the appellant was in Illinois at the time the injuries were inflicted causing the death of the deceased.

The trial court did not abuse its discretion in remanding the appellant for extradition.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Carl GIBSON, Appellant, v. The STATE of Texas, Appellee.
    No. 40967.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1968.
    Robert M. Moore, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell and Wells Stewart, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is burglary with a prior conviction for burglary alleged for enhancement; the punishment, twelve years.

Appellant challenges the sufficiency of the evidence to support the conviction.

The injured party, Harris, testified that when he returned home from work on the day in question he discovered that a large quantity of food, a man’s ring in the shape of a western belt encrusted with diamonds, a wedding band with six diamonds and several articles of wearing apparel were missing from his home; he then called the police. Upon the arrival of the police, certain marks were found on the rear door near the lock. Harris further testified that appellant had rented his garage apartment, but had moved away prior to the occasion in question. He further testified that all the stolen items except the food and a few articles of clothing were returned to him thereafter by the police.

Mrs. Hilliard, one of the Harris’ neighbors, testified that on the day in question she saw appellant walk out of the Harris’ driveway carrying a pillow case which seemed to be full, and that her attention was directed to appellant and his departure from the Harris’ because she knew he no longer lived in their garage apartment.

Officer Smith testified that he went to a certain grocery store in Houston some two weeks after the burglary and inquired of the manager if the appellant worked there, that appellant was identified to him, that he then approached appellant and asked him his name, observing that appellant, upon being confronted by the officer, placed something in his pocket. Smith then asked appellant what he had there, and appellant replied “Just this,” producing from his pocket a ring which the officer recognized as being one of the items reported stolen from the Harris’ home. Smith then said, “This looks like it; where is the rest of the property ?”, whereupon appellant replied, “Well, I might as well get my business straight, it’s in my apartment.” Following this, appellant directed the arresting officers to his aparment where they waited while appellant gathered up the remainder of the property which had been reported as missing, and placed it on his bed. The arresting officers then carried the property to the police station and the appellant before a magistrate.

Appellant did not testify or call any witnesses in his behalf at the hearing on guilt or innocence.

We have concluded that the evidence is sufficient to support the conviction.

Appellant’s second ground of error is that the court erred in admitting into evidence the ring which appellant produced to Officer Smith at the grocery store. Appellant cites no authority in support of his contention, and we conclude that the ring was admissible. See Hill v. State, Tex.Cr. App., 403 S.W.2d 421, and Jones v. State, 167 Tex.Cr.R. 72, 318 S.W.2d 444, cert. den. 361 U.S. 846, 80 S.Ct. 100, 4 L.Ed.2d 84.

Appellant’s third ground of error is that the trial court erred in admitting into evidence the property found in appellant’s apartment. This is not a consent to search case, but one in which the accused says to the officers, “Come with me and I will show you where the stolen property may be found.” In such a case, the property so recovered is admissible. Rose v. State, 165 Tex.Cr.R. 478, 308 S.W.2d 52, and Kindle v. State, 162 Tex.Cr.R. 395, 285 S.W.2d 740. See also Douthit v. State, Tex.Cr.App., 408 S.W.2d 712.

Appellant’s last ground of error is that the court erred in failing to grant his motion to suppress all evidence relating to the recovery of the stolen property. In view of what we have heretofore said, this ground of error need not be further discussed.

Finding no reversible error, the judgment is affirmed.


author: DICE, Judge. WOODLEY, Presiding Judge.

text:
    Rufus Peter DeMARY, Appellant, v. The STATE of Texas, Appellee. No. 40879.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1967.
    On Motion to Reinstate Appeal Jan. 31, 1968.

      Fred A. Carver, Beaumont, for appellant.

      W. C. Lindsey, Dist. Atty., James Sparks, Jr., Asst. Dist. Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for negligent homicide in the first degree; the punishment, a fine of $1,000.

The record on appeal does not include a sentence pronounced by the court, as required by Art. 40.09-1, C.C.P.

Art. 42.02, C.C.P., provides that a sentence must be pronounced and entered of record in every felony case and in every misdemeanor case except where the maximum possible punishment is by fine only.

Art. 42.04, C.C.P., requires that sentence be pronounced before an appeal is taken in a case of this nature.

If a sentence was in fact pronounced in the case but there was a failure for some reason to enter such sentence, it may be entered nunc pro tunc. Art. 42.06, C.C.P. If, on the other hand, no sentence was ever pronounced, the trial court may now pronounce sentence and appellant may then appeal from that sentence if he so desires. Clemons v. State, Tex. Cr.App., 414 S.W.2d 940, 941.

The appeal is dismissed.

OPINION ON MOTION TO REINSTATE THE APPEAL

WOODLEY, Presiding Judge.

Sentence which was pronounced prior to notice of appeal has been entered nunc pro tunc and made a part of the record on appeal by supplemental transcript.

The motion to reinstate the appeal is granted and the grounds of error set forth in appellant’s brief will be considered and disposed of.

Prosecution was upon a two count indictment, the first alleging negligent homicide while in the performance of the lawful act of driving an automobile on a public highway, and the second charging negligent homicide while in the performance of the unlawful act of driving an automobile on the left side of the road, the allegation being sufficient to charge violation of Art. 6701d, Sec. 56, V.A.C.S.

Both counts were submitted to the jury and appellant was found guilty under the first count, of negligent homicide in the first degree.

Appellant’s first ground of error relates to his motion to quash the indictment “for the reason that the allegations as to negligent homicide in the first degree clearly set forth a just occasion for civil action, and that in doing so, the allegations of the indictment are contrary to Art. 1231 under which this indictment rests, for the reason that said statute provides that any action which would give just occasion for a civil action can not be the basis of a negligent homicide first degree.”

A similar contention was overruled in Simmons v. State, 109 Tex.Cr.R. 157, 3 S.W.2d 449, and the negligent homicide statutes which have not been materially changed since enacted as a part of the original Penal Code of Texas have been upheld as constitutional. Ex parte Kindell, Tex.Cr.App., 415 S.W.2d 922; Pehl v. State, 153 Tex.Cr.R. 553, 223 S.W.2d 238; Dunn v. State, Tex.Cr.App., 390 S.W.2d 775.

The argument that Art. 1231 P.C. defines no offense for the reason that it is impossible for an act to be both negligent and lawful, and the contention that the Texas Wrongful Death Statute (Art. 4671 V.A.C.S.) “negates any possibility of the commission of the offense of negligent homicide in the first degree” confuses the act being performed and the act or acts relied upon to constitute negligence (which under Art. 408a V.A.C.C.P. must be alleged “with reasonable certainty”).

The degree of negligent homicide and the punishment applicable are not determined by the act or acts relied upon to constitute negligence and carelessness but by the act in the performance of which such negligence and carelessness occurred.

Where the act of negligence and carelessness which causes the death of another is committed by one in the performance of an act which is not forbidden by the penal law, and would itself give no cause for a civil action, the offense is negligent homicide in the first degree and the punishment is confinement in jail not exceeding one year or by fine not exceeding $1,000.

Difficult problems do arise where, in the prosecution of the driver of a motor vehicle upon a public highway for negligent homicide, the state relies upon the act being performed as the act constituting negligence.

Appellant’s ground of error No. 5 complains that a fatal variance existed between the allegation of the indictment and the proof offered by the state in that the indictment alleged that he negligently drove his automobile into and against the other automobile and thereby caused the death of the deceased who was an occupant, and further alleged that he failed to turn to the right side of the highway in time to avoid a collision, whereas the state’s proof established that his automobile did return to the right hand side of the road in time to avoid a collision and was not driven into the other vehicle, but slid into it when he lost control.

Another allegation of negligence in the first count of the indictment was that appellant failed to keep his automobile under proper control by reason of its operation at a greater speed than a person of ordinary prudence would have , done under like circumstances, and sufficient evidence was introduced to sustain the jury’s verdict.

We find no merit in this ground of error.

Ground of error No. 6 complains that the court erred in overruling appellant’s motion to require the district attorney to elect as to whether the case was to go to the jury on first or second degree negligent homicide.

The offenses involved the same transaction. A fact issue was raised as to whether appellant was in the performance of the misdemeanor offense defined by Art. 6701d, Sec. 56, V.A.C.S., or had returned to the right side of the highway before the collision occurred. The court did not err in refusing to require the state to elect. Bowles v. State, 140 Tex.Cr.R. 511, 146 S.W.2d 183, cited by appellant, does not sustain this claim of error. It was the absence of a finding by the jury as to which count Bowles was guilty, and not the submission of both degrees of negligent homicide, that required the reversal in Bowles v. State, supra, and in Ferguson v. State, 166 Tex.Cr.R. 432, 314 S.W.2d 601.

Appellant’s grounds of error 3 and 7 relate to the court’s charge. There were no objections in writing (Art. 36.14 V.A.C.C.P.) and no written instruction or requested charges timely presented to the court in writing, as required by Art. 36.15 V.A.C.C.P. The questions sought to be presented by grounds of error 3 and 7 are not before us for review.

Ground of error No. 2 complains of the refusal of the trial court to declare a mistrial because of misconduct of the assistant district attorney in placing appellant’s criminal record and mug shots at the end of the table nearest the jury box where it was visible to the jury.

The record does not reflect any proof that the record referred to was exhibited to the jury or that its contents were made known to any juror.

The trial judge heard evidence in the absence of the jury and declined to declare a mistrial. We find no reversible error.

Ground of error No. 4 also complains of the refusal of the trial court to declare a mistrial “when the assistant district attorney alluded to the failure of the witness to testify on the voir dire examination of the prospective jurors.” The ground of error is obviously without merit.

The judgment is affirmed.


text:
    Raymond REAGAN, Appellant, v. The STATE of Texas, Appellee.
    No. 40853.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1967.
    Rehearing Denied Feb. 7, 1968.

      Marvin O. Teague, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell and Joe Maida, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction, under Art. 535d, Vernon’s Ann.P.C., is for fondling a child with a prior felony conviction for exposing his private parts with lascivious intent to a female child alleged for enhancement; the punishment, twenty-five years.

As ground for reversal, the appellant insists that the evidence is insufficient to support the conviction for the alleged primary offense.

The prosecutrix testified that she was ten years of age on the day of the trial; that about 2 p. m., August 10, 1966, she was with a babysitter while her father and mother were away at work, and after getting permission, she and a ten-year-old boy went to a neighborhood library. To cross a busy street on the way, she asked the help of the appellant at a nearby service station. The girl related that her mother had told her to ask an adult for help when she felt unable to cross the street alone. While testifying, she identified the appellant as the person who assisted them across the street and on their return from the library. On their return in a short time, the appellant invited them into the station for candy. While the boy was looking around the station, the appellant asked the girl to sit on his lap, which she did, he being seated on a stool inside the station. The appellant then put his hand under her shirt and then went down under her pants. The girl was wearing a loose fitting top and a pair of shorts. She further testified that he put his hand under her shorts and down between her legs in front of her body on her sexual parts, and that 'he did this two or three times while she was sitting on his lap; that he noticed some black polish on her leg and he suggested they go into the bathroom and he would wash it off, and that she went because she was afraid of him; that after wiping the polish off, the appellant began talking to her about having babies and then started putting his hand up between her legs again. At this time she said a customer drove into the station; that the appellant told her not to tell anyone, especially her mother, or he would come and get her; that he gave her and the boy another piece of candy, and went to the customer; that she ran crying, called the boy, and they threw the candy into a ditch, and on arriving home she told the babysitter what happened, and her parents were called and soon came.

The girl’s parents notified the police, and she talked with a policewoman at the police station. Accompanied by two detectives, she went to the service station where she pointed out the appellant who was arrested.

While testifying, the boy, who was with the prosecutrix, identified the appellant as the man at the station who helped them across the street and on their return from the library, gave them some suckers, and the girl sat on appellant’s lap while he looked around the station; that later the girl came running from the station real upset and said, “I can’t wait to tell my mother,” and she was crying as they ran home.

The mother testified that upon her arrival home she found her daughter in a hysterical condition; that they took the girl to the police station. The testimony of the father corroborated that of the mother.

The babysitter testified that the girl was upset, nervous and had been crying when she arrived home, and told her about what had happened, and she notified the mother.

The appellant did not testify, but called five witnesses. Their testimony reveals that the appellant was at the service station during the time here in question. The testimony of four witnesses reveals that they were at the station before, about the time in question and later, but they never saw any girl or boy there. The testimony of the other witness reveals that he was at the station about the time in question; that the appellant was wearing a pair of black boots, and it appeared that appellant was cleaning them when the witness entered the station to use the telephone; and he identified the girl and boy, who were brought into the courtroom while he was testifying, as those at the station when he was there; that they attempted to cross the street but never did while he was there, and he never saw the appellant do anything to the girl, and the boy and girl left before he did.

The evidence is sufficient to authorize the jury to find that the appellant is guilty as charged.

It is contended that the trial court erred in refusing appellant’s motion to quash the indictment alleging that he did “place his hands and the fingers of his hands upon and against the sexual parts” of the prosecutrix, on the ground that these allegations do not charge a criminal offense, and that the indictment is so vague, ambiguous and incomplete as to deprive him of his right to know that with which he stands charged.

The provisions of Art. 535d, V.A.P.C., prohibiting the fondling of a child, in part reads:

“It shall be unlawful for any person with lascivious intent to intentionally place or attempt to place his or her hand or hands, or any portion of his or her hand or hands upon or against a sexual part of a male or female under the age of fourteen (14) years, * *

The allegations complained of substantially follow the language of the statute and sufficiently apprise the appellant of the acts he is charged with committing and the offense with which he is charged. No error is shown by the refusal of the motion to quash.

By formal bill of exception, the appellant contends that the trial court erred on the ground that the court conditioned his request to make an opening statement to the jury.

In qualifying the bill, the judge stated that he asked counsel what he expected to tell the jury, reminding him that the opening statement would be limited to the matter of the defenses relied upon and the facts he expected to prove in their support, and that he would not permit a general jury argument at that time. At this time, counsel for the appellant stated in open court that he would waive an opening statement; and he took no further action pertaining thereto at that time. No error is presented by the bill.

Error is urged on the ground that the trial court erred by failing to rule on appellant’s objection on the state’s offer to admit into evidence the statement of the prosecutrix, and the state again erred in making such offer in the presence of the jury.

This matter, according to the record, arose and ended as follows:

“Q All right — if the Court please, may I have the statement we have talked about earlier?
“State’s Attorney: We would offer it, Your Honor, and we waive any objection.
“Appellant’s Attorney: We object to Counsel’s statements along that line. We just made demand for the statement, Your Honor.
“The Court: Let’s proceed.”

While we do not approve of the side-bar remarks of state’s counsel, it is concluded that no reversible error is presented.

For reversal, the appellant relies upon the ruling of the court following his request of the state for the statement given to appellant’s investigator by the boy who was with the prosecutrix at the service station. This ground is presented by the record as follows:

“State’s Attorney: Your Honor, can I have the statement that Counsel for the defendant took from him? I offered him mine.
“Appellant’s Attorney: This is wholly irregular and we ask for a mistrial, Your Honor.
“The Court: Overruled.
“Appellant’s Attorney: Note my exception.”

While we do not approve of the side-bar remarks of state’s counsel, it is concluded that no reversible error is presented.

The remarks of state’s counsel during its closing argument to the jury is urged as error.

After the beginning of the closing argument as reflected by two legal size typewritten pages had been made, the following occurred:

“Appellant’s Attorney: I object to the remarks of Counsel.
“The Court: Sustained.
“Appellant’s Attorney: And ask the jury be instructed to disregard the argument.
“The Court: Let’s proceed.”

The purported objection fails to point out the portion of the argument complained of and specifies no grounds to support it. No error is presented.

Error is urged on the ground that the evidence is insufficient to show a prior conviction, and insufficient to show that the alleged prior conviction was a final conviction.

Certified copies of the judgment and sentence of the records of the Texas Department of Corrections including photographs and fingerprints were introduced. Lieutenant Fullerton of the Identification and Records Division of the Harris County Sheriff’s Department was qualified as a fingerprint examiner and testified that the known fingerprints which he took of the appellant were identical with those in the transcript of records from the Texas Department of Corrections. This was sufficient proof of the prior conviction. Dozier v. State, 167 Tex.Cr.R. 84, 318 S.W.2d 80, cert. den. 361 U.S. 849, 80 S.Ct. 107, 4 L.Ed.2d 88. In addition, the judgment contained all essential recitations to show waiver of a jury trial on a guilty plea. The judgment and sentence are regular upon their face and are sufficient proof of the prior conviction alleged for enhancement. Brown v. State, Tex.Cr. App., 368 S.W.2d 618; 36.01; 37.07 Vernon’s Ann.C.C.P.

Appellant also contends that the prior conviction fails for enhancement purposes in that the indictment contains two counts and that appellant was found guilty on the first count but that there is no evidence as to disposition of the secdnd count. The judgment specifies that the appellant was found guilty of indecent exposure with lascivious intent to a child, which was the first count. This was sufficient. Newby v. State, Tex.Cr.App., 384 S.W.2d 133.

The judgment is affirmed.


author: CLAYTON, Justice.

text:
    T. H. McCANN, Appellant, v. WARD COUNTY et al., Appellees.
    No. 5903.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 11, 1967.
    Rehearing Denied Jan. 10, 1968.
    Murray J. Howze, Monahans, for appellant.
    Ed Keys, Monahans, for appellees.
   OPINION

CLAYTON, Justice.

This is an appeal from a judgment of the District Court of Ward County, Texas, denying appellant a Bill of Review. This cause arose from a default judgment of the District Court against appellant, granting Ward County $2,104.00 for water sold by Precinct 4 to appellant on open account, and also granting costs of court and attorney’s fees to the attorney who represented Ward County. That judgment was entered in cause numbered 10,977 on February 14, 1966. Appellant filed a motion to set aside the default judgment, which was denied because not timely filed. Appellant, on August 11, 1966, filed this action for Bill of Review alleging that he had not been served with citation in Cause No. 10,977 (although the record in that case shows service on the return of the citation) and did not know he had been sued until he was called by the attorney for the County after default judgment had been taken, and also that no demand had been made upon him to pay the amount of $2,104.00. However, he admitted in the present cause that he owed this amount and deposited it on the registry of the court.

Appellant presented here three points of error and appellees have five counterpoints, but only one of the counterpoints need be discussed. In Counterpoint No. 5, appellees point out that appellant was not properly before the trial court or before this court for the reason that his application for Bill of Review was not sworn to as required by law. This omission was the subject of an exception by appellees which the trial court did not rule on, perhaps because he denied the application for Bill of Review after hearing on the merits.

The record shows that this application was not verified. In 34 Tex.Jur., Judgments, in a discussion of Bills of Review, it is stated in § 243, p. 131:

“§ 243. — Verification.
“General rules of pleading require that the petition be verified by the plaintiff, or by his attorney if the facts alleged rest peculiarly within the knowledge of the attorney.”

In the case of Warne v. Jackson, 273 S.W. 315, 318 (Tex.Civ.App., 1925; dism.) it is held:

“The paper denominated ‘Plaintiff’s First Amended Original Petition’ was doubtless intended as a bill of review to set aside the former judgment of the court, and was not verified by the affidavit of any one. The proceeding could not have been a motion for a new trial, because filed years after the judgment was rendered. If it was intended as a new suit, it showed on its face that the matters of which complaint was made were res adjudicata, and if it could be classed as a bill of review then it was invalid because not verified by affidavit.”

This case was followed in Lindsey v. Panhandle Const. Co., 46 S.W.2d 339, 342 (Tex.Civ.App., 1932; n. w. h.) and affirmed in part, but remanded on other grounds, by the Texas Supreme Court, Panhandle Const. Co. v. Lindsey, 123 Tex. 613, 72 S.W.2d 1068 (1934).

From the above reference and case authorities, we conclude that there was no error on the part of the trial court in refusing the application for Bill of Review and affirm such decision.

Affirmed.


author: DENTON, Chief Justice.

text:
    PHILLIPS PETROLEUM COMPANY, Appellant, v. Lee T. BIVINS et al., Appellees.
    No. 7747.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 20, 1967.
    Rehearing Denied Dec. 18, 1967.

      C. J. Roberts and Jack Ritchie, Amarillo, Wm. J. Zeman and Lloyd G. Minter, Bar-tlesville, Okl., for appellant.

      Lumpkin, Watson & Smith and Robert Page Smith, Amarillo, for appellees.
   DENTON, Chief Justice.

This case is before us upon petition for writ of error by Phillips Petroleum Company, defendant in the court below. A motion to dismiss is in the record by plaintiffs below, Lee T. Bivins and others, who originated the case in a declaratory judgment action in the district court seeking to have the Bivins’ “HH” No. 2 gas well proration unit declared invalid and of no effect; that three separate oil and gas leases under which they owned the royalty contained no pooling or unitization clauses; that plaintiff has no right to pool or unitize in any manner; that they are entitled to a full one-eighth royalty from the production of the Bivins’ “HH” No. 2 gas well; that inasmuch as its three tracts are covered by separate leases from which they are entitled to one-eighth of the production, Phillips is not entitled to commingle or jointly operate tracts One, Two and Three; and that Phillips is without authority to operate tracts One, Two and Three with Tract Four. The tracts -will be hereinafter described.

We deem it necessary to pass upon the motion first before discussing other questions in the case. The parties will be hereinafter referred to as Phillips or appellant, and as the Bivins or appellees.

The trial court held its regular docket call on May 9, 1966, at which time this case was set for hearing on July 5, 1966. Appellees state by brief that Phillips absented itself from the hearing and: “After the hearing, the Trial Court entered judgment on July 7, 1966.” Except for Phillips’ “Surrejoinder” there is not anything in the record to show why the appellant was not present at the hearing on July 5, 1966. A default judgment does show to have been rendered and signed on July 7, 1966. The “Surrejoinder” is not evidence, we have no authority to consider it as such, and in our view of the law it is unnecessary to be considered. The record does show that a judgment was rendered on said date reciting in part that “ * * * Phillips Petroleum Company, having heretofore appeared and answered herein by written answer * * * Defendant nevertheless failed in all things to appear for the trial of this cause; # * * »

The record shows a copy of the judgment was not sent to Phillips’ counsel until more than thirty days after the date of the judgment, thus foreclosing appellant’s remedy through a motion for new trial as spelled out in Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966). Phillips then filed its petition for writ of error within the six months period under the provisions of Articles 2249, 2249a and 2255, Vernon’s Ann.Tex.Civ.St., followed by appellees’ motion to dismiss.

Regarding writs of error from district courts to the Courts of Civil Appeals, Article 2249 provides: “An appeal or Writ of Error may be taken to the Court of Civil Appeals from every final judgment of the district court in civil cases * * *"

Section I of Article 2249a provides: “No party who participates either in person or by his attorney in the actual trial of the case in the trial court shall be entitled to review by the Court of Civil Appeals through means of writ of error.”

Article 2255 provides: “The writ of error, in cases where the same is allowed, may be sued out at any time within six months after the final judgment is rendered.”

We believe the key word in these articles with respect to the point under discussion is the word “actual”, wherein Section I of Article 2249a states: “No party who participates either in person or by his attorney in the actual trial of the case shall be entitled to review by the Court of Civil Appeals through means of writ of error.” (All emphases added.)

The Supreme Court of Texas has given the word “actual” emphasis by holding the statute “ * * * denies that right only to one 'who participates either in person or by his attorney in the actual trial of the case,’ ” italicizing “actual”. Continuing, the court said: “Ordinarily, the ‘trial’ includes every step taken in the determination of the issues between the parties * * * ” Lawyers Lloyds of Texas v. Webb, 137 Tex. 107, 152 S.W.2d 1096 (1941). Every step taken in the determination of the issues between the parties would necessarily include the courtroom hearing leading to the judgment rendered. Therefore, Phillips did not participate “ * * * either in person or by his attorney in the actual trial of the case within the rules just stated from the Court.” See also Specia v. Specia, 292 S.W.2d 818 (Tex.Civ.App.-SanAntonio, 1956, writ ref’d n.r.e.); and Petroleum Casualty Co. v. Garrison, 174 S.W.2d 74 (Tex.Civ.App.-Beaumont, 1943, writ ref’d w.o.m.), holding that filing an answer in a case is not participation. The Supreme Court in Lawyers Lloyds of Texas v. Webb, supra, also said:

“Moreover, the statute here under consideration is at least open to the construction which we have given it. It is well settled in this State that statutes giving and regulating the right of appeal are recognized as remedial in their nature, and in case of doubtful construction, should be liberally construed in favor of the right of appeal thereunder. Pratley v. Sherwin-Williams Co. of Texas, Tex.Com.App., 36 S.W.2d 195, par. 3; Parks v. Purnell, 135 Tex. 182, 141 S.W.2d 585, par. 3.”

The motion to dismiss the petition for writ of error is denied.

Appellees are royalty owners under three out of four tracts of land in Hutchinson County that constitute the Bivins’ “HH” No. 2 gas well proration unit. Phillips is part owner of the three separate oil and gas leases on the same three tracts and also owns a lease covering an 80-acre tract in Section 85 contiguous to the tracts in Sections 84 and 86 just described. The fourth tract will be referred to as the Sanford Tract.

The four tracts comprise 480 acres located in the West Panhandle (Red Cave) Gas Field. Special Order No. 10-48, 438 of the Railroad Commission provides for standard 640-acre proration units, although exceptions may be granted on compliance with the Commission’s density order of August 28, 1953, where there is an absence of a voluntary subdivision, as here.

Making a decision in 1962 to drill a Red Cave gas well on the north 160 acres of Section 86, Phillips requested appellees to modify their three leases, authorizing the pooling of their leases into a 480-acre unit with the Sanford 80 acres. Appellees refused, so electing to account to the San-fords out of its own working interest, Phillips applied to the Commission on May 19, 1964, for a permit to drill the Bivins’ “HH” No. 2 well on the North 160 acres of Section 86, with the Bivins’ tracts and the Sanford tract attributed to a 480-acre proration unit. The proposed proration unit being less than the standard 640-acre unit established by the Commission to be the efficient drainage area of a gas well, the application for a permit was accompanied by a density affidavit.

It is obvious from the statements made that appellees would benefit on the basis of a 480-acre unit rather than the 400 acres of minerals owned by them in the proposed unit.

The Bivins’ “HH” No. 1 was a mechanical failure and in the application to drill the Bivins’ “HH” No. 2 its density affidavit informed the Commission that Phillips had no power to pool appellees’ land. Both the Commission and appellees had been notified more than once by telephone to the Commission and letters to counsel for ap-pellees that Phillips recognized it had no contractual pooling rights.

The Commission granted the requested permit and each month since commencement of production has allocated to the Bivins’ “HH” No. 2 gas well, the 480 acres designated in the plat attached to the drilling application. The well has produced its 480-acre allowable since commencement and Phillips has at all times offered to account to appellees for a full ⅛ royalty on the 480-acre basis.

Appellees protested both to Phillips and to the Commission, stressing the lack of pooling rights even though they had been advised through their counsel by Phillips, as had the Commission, that Phillips did not claim such rights.

Fred Young, the Commission counsel, advised the proration unit would stand. On June 1, 1965, appellees filed an action asking for declaratory judgment “ * * * that defendant has no legal authority, right or power to pool or unitize the tracts described in Paragraph II above with the tract described in Paragraph V above. * * * ” Then by amended petition filed on June 24, 1966, appellees alleged:

“(2) That Defendant is without authority to pool, unitize, jointly operate or commingle the minerals under Tracts One, Two and Three above described and that any action on the part of Defendant to such effect is a nullity and of no force and effect;
“(3) That Defendant is without authority to pool Tracts One, Two and Three with Tract Four; or to operate Tracts One, Two and Three in connection with or jointly with Tract Four;”

In its first point of error Phillips contends the court below erred in entering judgment declaring appellees’ leases are without pooling provisions, that they are entitled to a ⅛ royalty, “and other declarations to the same effect, because no controversy existed between the parties with respect to such issues

A prior affidavit had been filed by Phillips for the drilling of the Bivins’ “HH” No. 1, which failed to advise that the Bivins refused to pool, but since the well was a mechanical failure no proration unit was ever allocated to that well and the prior affidavit became moot.

A careful study of the transcript makes it apparent that the trial court rendered a judgment declaring upon issues about which no controversy existed.

The record shows agreement that ap-pellees owned royalty interests on Tracts One, Two and Three; that Phillips is the owner (within the purview of this record) of oil and gas leases covering such tracts; that none of the leases grant to lessees- any power to pool or unitize any of the leased tracts with any other tract or with each other; that Phillips owes to appellees a sum of money equal to ⅛ of all of the production of and from the gas well known as the Bivins’ “HH” No. 2; that by accepting such money appellees in no way ratify or confirm, consent or agree to Phillips “operating” the four tracts jointly; and that Phillips should pay immediately to ap-pellees a sum of money equal to ⅛ of the gas produced from the Bivins’ “HH” No. 2 well.

Phillips having agreed that it had no contractual pooling rights to the tract; having so advised appellees and the Commission; having tendered the full ⅛ royalty following the attribution by the Commission of the 480 acres to the Bivins’ “HH” No. 2 well; and such acreage being less than the standard 640 acres required for the area (subject to reduced acreage when a density affidavit shows reason therefor), we are unable to find where the judgment declared upon any legitimate controversial issue concerning which a court outside of Travis County has jurisdiction. A proration unit is not “operated” in the sense in which the term appears to be used in appellees brief and pleadings. It exists as a standard for measuring al-lowables.

It is without question that the leases from the Bivins to Phillips do not constitute contractual pooling rights, with the resulting consequences such as are enumerated in Southland Royalty Co. v. Humble Oil & Refining Co., 151 Tex. 324, 249 S.W.2d 914 (1952) and none of which characteristics follow from the allocation of acreage by the Railroad Commission to a proration unit. Certainly as to this question then a real and justiciable controversy cannot exist, the parties not being in dispute and no adverse claim having been asserted in that respect.

It has been held that: “For a factual situation to constitute a ‘justiciable controversy’, there must be a real and substantial controversy involving a genuine conflict of tangible interests, rather than a theoretical one.” Littlejohn v. Johnson, 332 S.W.2d 439 (Tex.Civ.App.-Waco, 1960, no writ). See also Spradley v. Whitehall, 314 S.W.2d 615 (Tex.Civ.App.-Fort Worth, 1958, no writ), and in the federal jurisdiction, Treemond Co. v. Schering Corporation, 122 F.2d 702 (3rd Cir., 1941); and Dewey & Almy Chemical Co. v. American Anode, 137 F.2d 68 (3rd Cir., 1943).

We are not unmindful of the per curiam in Zimmerman v. Texaco, Inc., 413 S.W.2d 387 (Tex.1967) but the cause of action alleged in the First Amended Original Petition by plaintiff' in that case involved a damage suit for drainage, constituting a substantive property right. Any justiciable controversy here has to do with the formation by the Commission of a proration unit for allowable purposes. The allocation of acreage by the Railroad Commission to a proration unit such as the one here constitutes a different legal relationship in that only the allowable of the well is affected and not ownership. It exists as a creature of the Railroad Commission as a standard for measuring allowables.

In a declaratory judgment action, where the trial court declares upon matters where there is no justiciable controversy, it lacks jurisdiction. Where the trial court does not have jurisdiction, this court also lacks jurisdiction. Orange Independent School Dist. v. West Orange Independent School Dist., 390 S.W.2d 81 (Tex.Civ.App.-Beaumont, 1965, writ ref’d n. r. e.). If a trial court exercises jurisdiction where there is none, it is fundamental error and may be raised at any time. Murray v. Brisco, 209 S.W.2d 976 (Tex. Civ.App.-Galveston, 1948, no writ) ; Trouppy v. De Bus, 311 S.W.2d 431 (Tex.Civ. App.-Fort Worth, 1958, writ ref’d n. r. e.).

The record being completely clear of controversy over Phillips’ right or power to contractual pooling or unitization, we believe the court below was without authority to declare on that subject.

This brings us to plaintiffs’ point challenging the judgment’s all-purpose adjudication; i.e., “Phillips must therefore operate each of Plaintiffs’ tracts separately and distinctly from each other for all purposes.”

It would appear that the judgment sought and secured by appellees in the trial court was for the purpose of attempting to require drilling on their Tracts Two and Three as exceptions to Rule 37. In view of the disapproval by the Supreme Court of Texas in Railroad Commission v. Williams, 163 Tex. 370, 356 S.W.2d 131 (1961) and Coloma Oil & Gas Corporation v. Railroad Commission, 163 Tex. 483, 358 S.W.2d 566 (1962) of the so-called one-tract, one-well theory, we do not see a justiciable controversy of property rights in that connection such as to give jurisdiction to the trial court here.

Of course, there is a controversy over the validity of the proration unit formed by the Commission, but we believe the litigation of the question would be in a court of competent jurisdiction in Travis County. Article 6049c, Section 8, V.T.C.S.; Mueller v. Sutherland, 179 S.W.2d 801 (Tex.Civ.App.-El Paso, 1944, no writ); Alpha Petroleum Co. v. Terrell, 122 Tex. 257, 59 S.W.2d 364, 372 (1933).

The Supreme Court of Texas in Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73 (1939), in a suit involving a permit to drill, an issue similar if not basic to the question here, held as follows:

“Under our oil and gas conservation statutes ‘Any interested person affected * * * by any rule, regulation or order made or promulgated by the Commission thereunder, * * * shall have the right to file a suit in a Court of competent jurisdiction in Travis County, Texas, and not elsewhere, * * * to test the validity of said laws, rules, regulations or orders. * * * In all such trials, the burden of proof shall be upon the party complaining of such laws, rule, regulation or order; and such laws, rule, regulation or order so complained of shall be deemed prima facie valid.’ Section 8 of Article 6049c, Vernon’s Tex.Civ.St.1936. Under the above statute the suit there provided for must be filed in a district court located in Travis County. It is too plain to admit of debate that, under our oil and gas conservation statutes, the Commission, being the statutory enforcement agency, must, as a general rule, also be the primary, or original, statutory fact finding agency. The Commission is given the power and is charged with the duty to make original rules and orders, proper and necessary to carry out and effectuate the aims and purposes of such statutes * * *
“As already noted, our oil and gas conservation statutes provide an appeal from the Commission to the District Court of Travis County, Texas. The action before us here is such an appeal. In ordinary civil actions the district court, or any other trial court, exercises original jurisdiction to find and determine all fact questions, as well as all law questions. The action provided by statute for an appeal to a district court of Travis County to review the rules and orders of the Commission is clearly not an ordinary civil action. To the contrary, it is a special statutory action to enforce a right which exists only by statute, and not under the Constitution or at common law. Alpha Petroleum Co. v. Terrell, 122 Tex. 257, 59 S.W.2d 364; Id., 122 Tex. 257, 59 S.W.2d 372.”

We therefore believe, and so hold, that the court below was without jurisdiction to hold that the lands comprising the Bivins’ “HH” Gas Proration Unit could not be attributed for proration purposes. Having so held, it is not necessary to pass upon the third point raised by Phillips.

The case is dismissed for lack of jurisdiction.

      . (Tract 1): North 160 acres of Section 86; (Tract 2): South ½ of the north ⅛ of Section 84; and (Tract 3): North ⅜ of the north ½ of the south 320 acres of Section 84.

      . (Tract 4): South 80 acres of north 266 acres of Section 85.

      . Tracts 1, 2 and 3.

      . Tract 4, the Sanford 80 acres.

      . We confess we are uncertain on the meaning of the term “operate” as used in the judgment and in appellees’ brief. The term is not explained by appellees, and Phillips admits by brief it does not know what is meant by the term as it is used in the judgment and in appellees’ brief.


author: SHARPE, Justice.

text:
    CALIFORNIA CHEMICAL COMPANY, Appellant, v. Floyd E. SASSER, Appellee.
    No. 354.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 28, 1967.

      Walter M. Kelly, McAllen, for appellant.
    Travis Hiester, of Kelley, Looney, McLean & Littleton, Edinburg, for appellee.
   OPINION

SHARPE, Justice.

This is a suit on a sworn account instituted by appellant, a corporation, seeking recovery of $8,454.85 for goods, wares, chemicals and fertilizers allegedly sold and delivered to appellee, and $3,500.00 for attorneys fees. After non-jury trial the lower court rendered judgment that appellant take nothing by its suit. Findings of fact and conclusions of law were not requested nor filed.

Appellee filed original answer which included a special exception and a plea in bar based upon the two year statute of limitations, and, also, a proper sworn denial of the account. Appellant then amended its petition to allege that appellee had acknowledged the alleged account in writing. Appellee by amended answer reasserted the same defenses of sworn denial and limitation. Appellant’s alleged account was based upon transactions between July 10, 1962 and January 22, 1963. The letter of alleged acknowledgment relied on by appellant is dated September 26, 1963. This suit was filed on May 14, 1966.

Appellant’s first three points assert that the trial court erred in failing to find (1) that appellant was entitled to judgment on the account as proved, (2) that appellee had acknowledged the debt sued upon in writing, (3) that appellee offered to pay the debt sued upon in writing. Appellant’s fourth point contends that the trial court erred in finding that the debt sued upon was barred by the two year statute of limitations.

We will first consider appellant’s point one along with appellee’s counterpoint one which asserts that the trial court correctly held that appellant failed to discharge its burden of proof in establishing the existence of an account.

Appellant’s evidence consisted of the testimony of two witnesses and certain exhibits. Appellee did not offer evidence. One of appellant’s witnesses testified only concerning attorney’s fees. The other witness was Mr. Ardis Barnes, appellant’s branch sales manager. He identified certain records in the files of appellant, and particularly a number of invoices to appel-lee. Mr. Barnes testified that he had no personal knowledge of the alleged transactions with appellee and his only knowledge of the account was that reflected by the records in appellant’s file. There was no evidence of delivery to appellee of the items described in appellant’s invoices; nor was there any evidence of an agreement as to the price of such items or that the prices charged were reasonable, nor that any of the invoices in evidence were ever sent to appellee.

Appellee’s sworn denial of the account placed the burden upon appellant to establish each and every item of it by legal and proper evidence. J. E. Earnest & Co. v. Word, 137 Tex. 16, 152 S.W.2d 325 (1941). A recovery by appellant was precluded here because of its failure to produce evidence of delivery to appellee of the merchandise described in the invoices. Texan Man’s Shop Inc. v. Nunn-Bush Shoe Company, 401 S.W.2d 716 (Tex.Civ.App., Corpus Christi, 1966, n. w. h.). Appellant’s recovery was also precluded by its failure to produce evidence that the prices charged for the goods involved were in accordance with an agreement, or in the absence of agreement, that they were usual, customary or reasonable. Marr v. Craddock, 406 S.W.2d 278 (Tex.Civ.App., Tyler, 1966, n. w. h.); Parker v. Center Grocery Company, 387 S.W.2d 903 (Tex.Civ.App., Tyler, 1965, n. w. h.) ; Opryshek v. McKesson & Robbins, Inc., 367 S.W.2d 357 (Tex.Civ.App., Dallas, 1963, n. w. h.).

The trial court correctly held that appellant failed to discharge its burden of proof to establish the existence of an account or the liability of appellee to appellant. Appellant’s point one is overruled.

The above holding requires affirmance of the judgment. However, it further appears that even if appellant had properly proved its account, the same was barred by the two-year statute of limitation (Art. 5526, Vernon’s Ann.Civ.St.) and appellee’s letter of September 26, 1963 was not sufficient to remove such bar. We will briefly consider appellant’s points two, three and four along with appellee’s replies thereto.

The letter of September 26, 1963 relied on by appellee to remove the bar of the two-year statute of limitation is not sufficient to do so for several reasons. As copied in the Statement of Facts, said letter reads as follows:

“SASSER’S COMPLETE FERTILIZERS SEEDS * * * INSECTICIDES
EDINBURG—DU 3^1544
September 26, 1963
Mr. F. X. Vaughn District Manager California Chemical Co.
Dear Sir:
I appreciate your leniency on my account, which was caused by our unfortunate experience with Wesrfen Land and cattle Company. As you are well aware we hold a judgment against them but to date W& have not been able to collect anything. Yesterday we engaged new attorneys and hope to find something to levy on.
I can assure you that anything that I collect will be paid promptly to you. I have no other income except this store and due to the short crops in the valley this year I am barely making operating expenses and do not see how I can pay or promise anything at this time.
If you would care to contact Elick & Barnes Attorneys in the First National Bank at McAllen, Texas they will keep you informed of our progress on collecting the amount due us from Western. After I pay them there will not be enough to pay you completely but maybe we can reduce the amount enough till I can pay the rest out of my business. Thank you.
yours respectfully /s/ Floyd E. Sasser Floyd E. Sasser
(Stamp) RJB SEP 30 1963”

There was no evidence to show that the account sued on by appellant was the same one referred to in the letter of September 26, 1963. In the absence of findings of fact there is an implied finding of the trial court that the account which is the subject matter of this suit was not the one referred to in said writing.

It further appears that even if the said writing did refer to the account sued on by appellant, it was insufficient to imply a promise to pay the same. Appellee’s letters contains the statement, at the end of the second paragraph thereof, that “I am barely making operating expenses and do not see how I can pay or promise anything at this time.” A similar situation was before the court in the case of Brickley v. Finley, 143 S.W.2d 433 (Tex.Civ.App., El Paso, 1940, n. w. h.) wherein the court held as follows:

“Assuming that it constitutes an acknowledgment of the justness of the debt, nevertheless, the letter contains this statement: ‘There is no use for me to promise it.’ Ordinarily, the law implies a promise to pay where the debtor, in writing, acknowledges the justness of the claim. But in our opinion a promise to pay cannot be properly implied from a mere admission of the justness of the debt where the writing in question contains an express refusal to promise payment. In the letter mentioned, by the sentence quoted, C. O. Finley in effect expressly refused to promise payment, and in the face of that express refusal we are of the opinion it is insufficient to imply a promise to pay.”

In Miller v. Thomas, 226 S.W.2d 149 (Tex.Civ.App., Amarillo, 1949, wr. ref.) the court said:

« * * * must aiso be observed that the statute of limitations is construed liberally in favor of debtors and that vague expressions must not be tortured into acknowledgments or promises such as would toll the statute of limitations when the language actually used and considered is not clearly subject to such construction. Starr v. Ferguson, 140 Tex. 80, 166 S.W.2d 130; Metropolitan Casualty Ins. Co. of New York v. Davis, Tex.Civ. App., 174 S.W.2d 84; Windom v. Howard, 86 Tex. 560, 26 S.W. 483; Standard Surety & Casualty Co. v. Wynn, Tex. Civ.App., 172 S.W.2d 789.”

The case of American Surety Co. of New York v. Hughes, 185 S.W.2d 235 (Tex.Civ.App., Galveston, 1945, wr. ref.) heavily relied upon by appellant here is distinguishable. In that case the debtor wrote a longhand note at the bottom of the creditor’s letter, which letter stated the amount claimed by the creditor, and called attention to the fact that the debtor had theretofore promised to make payments during the fall of 1938. The court pointed out that the debtor’s notation was in direct reply to the creditor’s request that he make a substantial payment on the amount claimed due at that time; and that the notation construed with the letter imported a promise by the debtor to pay the claim. The court held that there was a sufficient acknowledgment to remove the bar of limitation.

Here, we do not believe that appellee’s letter of September 26, 1963 can be construed so as to imply a promise to pay in view of his expressed intention not to make such a promise. Brickley v. Finley, supra; Miller v. Thomas, supra.

It further appears that even if ap-pellee’s letter of September 26, 1963 can be construed as containing a promise to pay appellant’s debt, that the same was made subject to certain conditions not shown to have been fulfilled.

In York v. Hughes, 286 S.W. 165 (Tex. Com.App.1926), the court held as follows:

“ * * * An unqualified and unequivocal acknowledgment in writing on the part of the debtor, of the existence of the indebtedness, unaccompanied by expressions indicating an unwillingness to pay same, will raise the implication of a new promise to pay the indebtedness. But if the acknowledgment of the existence of the indebtedness be qualified by an expressed promise to pay same conditionally, a promise different from the one so expressed will not be implied. In .such a case the fulfillment of the named condition becomes a prerequisite to the debtor’s liability on the new promise. Salinas v. Wright, 11 Tex. 572; McDonald v. Grey, 29 Tex. 80; Webber v. Cochrane, 4 Tex. 31; Smith v. Fly, 24 Tex. 354, 76 Am. Dec. 109; Mitchell v. Clay, 8 Tex. 443; Coles v. Kelsey, 2 Tex. 541, 556, 47 Am. Dec. 661; Rowlett v. Lane, 43 Tex. 274; Howard v. Windom, 86 Tex. 560, 26 S.W. 483.”

In Smallwood v. Melton, 97 S.W.2d 781 (Tex.Civ.App., Ft. Worth, 1936, wr. dism.) the court, quoting from McDonald v. Grey, 29 Tex. 80 (1867), held as follows:

“The terms upon which the debtor predicates his promise or undertaking Lo pay such a debt are entirely within his own option and discretion, and the creditor can only avail himself of the new promise upon the stipulations with which it is coupled by the debtor; and the burden of showing that this has been done is upon the creditor.”

Appellant here did not adduce evidence concerning appellee’s collection of all or part of the judgment against Western Land and Cattle Company, nor concerning the financial condition of appellee’s business. An analysis of the letter of September 26, 1963 reveals that any statement which might be construed as a promise to pay is conditioned on the collection of money by appellee from his judgment against Western Land and Cattle Company, and that this condition must be fulfilled before appellee would pay money out of his business. Appellant failed to offer evidence that such condition had been fulfilled and therefore would not be entitled to recover on the letter of September 26,1963 even if considered as a conditional promise to pay appellant’s account. York v. Hughes, supra; Small-wood v. Melton, supra.

Appellant’s points two, three and four are overruled.

The judgment of the trial court is affirmed.


author: TUNKS, Chief Justice.

text:
    The AETNA CASUALTY AND SURETY COMPANY, Appellant, v. T. H. SCOTT, Appellee.
    No. 44.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Jan. 3, 1968.
    Rehearing Denied Jan. 31, 1968.

      L. S. Carsey, Stanley Crawford, and Fulbright, Crooker, Freeman, Bates & Jawor-ski, Houston, for appellant.
    Horace F. Brown, Houston, for appellee.
   TUNKS, Chief Justice.

This is a workmen’s compensation case.

In the trial court, the jury found that the plaintiff, appellee here, sustained an accidental injury on February 28, 1964, while working for his employer for which the defendant, appellant here, was the compensation carrier and that such injury was a producing cause of eight weeks and two day of total incapacity. The parties stipulated as to the plaintiff’s average weekly wage before his injury and the jury found his wage earning capacity during the period of his partial incapacity. The trial court rendered judgment on that verdict for the plaintiff.

The parties will be designated as in the trial court.

The defendant seeks a reversal and remand based upon the following summarized points of error: insufficiency of the evidence to support the finding of accidental injury; jury misconduct; erroneous exclusion of a written statement by plaintiff to the effect that his incapacity was not caused by a compensable injury; and the trial court’s error in permitting certain testimony to be read back to the jury. The defendant also asserts that the cumulative harmful effect of those alleged errors requires a reversal. It is to be noted that the defendant does not challenge the sufficiency of the evidence to support the jury’s findings as to the extent of the plaintiff’s incapacity.

As to defendant’s first point of error — we hold the evidence sufficient to support the jury’s finding that the plaintiff sustained an accidental injury as alleged by him.

The plaintiff, at the time of his alleged injury, was a sixty-two year old ironworker. He testified that on February 28, 1964, while unloading steel from a truck, he bent over to lift a piece of steel when “a sharp pain hit me in the back.” He continued to work that day and the following days until March 17, when he went to his family doctor for an examination. The pain in his back continued during this period. He had suffered from prostatitis and a kidney ailment for some time in the past and apparently attributed his pain to those conditions until his family doctor,'on examination, ruled them out as a cause. Although, during the interval between the onset of his pain and the examination by his doctor, he complained to his foreman of his pain and sought light duty, it was not until after the examination that he first claimed that his disability was due to an accidental injury received on February 28.

The plaintiff was off work from March 17, 1964, until February or March of 1965. He then started working as a guard on the waterfront. He had occasionally worked as a clerk in a liquor store. He testified that his pain continued up to the time of the trial and that he was not able to do the heavy work he had done before February 28, 1964.

The plaintiff’s family doctor testified that on March 17, 1964, the plaintiff came to him to be examined for an injury to his kidney and that his kidney and prostate were normal. He recommended that plaintiff see an orthopedic surgeon.

On March 26, 1964, the plaintiff was examined by Dr. George H. Lane, a qualified orthopedic surgeon. Dr. Lane made a clinical examination and took X-rays of plaintiff’s low back. He testified that the X-ray films showed a minimal compression fracture of the fifth lumbar vertebra and that it was “a reasonably fresh fracture.” He also testified that the films showed that the plaintiff suffered from osteoporosis and osteoarthritis which were of long standing, ante-dated the February 28, 1964 injury, and that such conditions were not unusual in a working man of plaintiff’s age. Based on the history given him by the plaintiff and his clinical and X-ray findings, Dr. Lane expressed an opinion that the plaintiff sustained the fracture at the time of his injury on February 28. He reached this conclusion despite the fact that the mechanics of the injury described by the plaintiff were not of the type that would be expected to produce a compression fracture.

The plaintiff continued to report to Dr. Lane on infrequent occasions up to the time of the trial. Dr. Lane prescribed a back brace and certain medication for him. Dr. Lane was of the opinion that the plaintiff would never again be able to do the work of an ironworker.

The plaintiff, at the request of the defendant, was examined by a radiologist, a neurosurgeon and another orthopedic surgeon. Each of them was well qualified in his specialty. Their testimony can generally be summarized as follows: they all testified that the X-ray films of plaintiff’s lumbar spine showed osteoporosis and osteoarthritis which originated before the date of plaintiff’s alleged injury. They expressed some doubt that the plaintiff had ever sustained a compression fracture and all agreed that, if he had, it was sustained long before February 28, 1964. They were of the opinion that any incapacity being experienced by the plaintiff at the date of their examination of him was due to his osteoporosis and osteoarthritis.

In our opinion, the evidence was sufficient to support the jury’s finding that the plaintiff sustained an accidental injury as alleged by him.

The plaintiff was the beneficiary of a group insurance policy that excluded loss resulting from on-the-job accidental injuries. After his examination by his family doctor, he made a written claim for benefits under that policy. In that claim he made the statement that the medical expense incurred on the March 17, 1964 examination, for which he was claiming reimbursement, was not the result of an on-the-job injury. The defendant interrogated the plaintiff about that claim. He admitted having signed it and that in it he had made the statement that the medical expense for his examination was not due to an on-the-job injury. The defendant offered the claim in evidence as an exhibit. The trial court sustained the plaintiff’s objection. The exhibit, when offered by the defendant, was not hearsay because it was a statement by the plaintiff. It would have been admissible except for the fact that it revealed, on its face, payment to the plaintiff from a collateral source. Since the evidentiary substance of the statement was revealed by the oral testimony of the plaintiff, the trial court properly excluded the exhibit. Traders & General Ins. Co. v. Reed, Tex.Civ.App., 376 S.W.2d 591, err. ref., n.r.e.; Mosby v. Texas & P. Ry. Co., Tex.Civ.App., 191 S.W.2d 55, no writ history.

The jury on its first vote was divided 11 to 1 in favor of a “we do” answer to the first special issue which asked if the plaintiff had sustained an accidental injury. That division continued into the second day of deliberation and until the trial judge, at the jury’s request, permitted some of the medical testimony to be read back. When the jury returned to the jury room after hearing that testimony read back to them, one juror said that a one-time co-worker of his had broken his leg and had continued to limp after the X-rays showed that the break had healed. Soon after returning to their deliberations, the dissenting juror changed his vote and a verdict was reached.

By a point of error, the appellant contends that the trial court erred in overruling appellant’s motion for a new trial because of this jury misconduct. We overrule that point of error.

The testimony (on motion for new trial) clearly indicated that it was the reading back of the medical testimony and not the statement of the fellow juror which caused the dissenting juror to change his vote. The trial court was amply justified in concluding that the record did not show any probable prejudice to the defendant. St. Louis Southwestern Ry. Co. v. Gregory (Tex.Sup.Ct.) 387 S.W.2d 27; Sims v. McKnight, 420 S.W.2d 173, no writ history; Rule 327, Texas Rules of Civil Procedure.

As indicated above, the jury, during its deliberation, requested that some of the medical testimony be read back to it. That written request was in the following language :

“Judge Snell,
“Dr. Lane indicated on two x-rays what he considered a minor spinal fracture, on the first, and an indication of healing and disappearance of this fracture, on the second x-ray.
“The jury wishes to be refreshed on the testimony of the other medical witnesses as relates to a spinal injury and the dates of the x-rays submitted in evidence by Dr. Lane and those other doctors who made references to a spinal injury.
Benton W. S. Dodge, Foreman”

In response to that request, the court caused to be read twenty-five pages of testimony. The defendant objected to the court’s action in permitting two questions and answers of the neuro-surgeon who had been called as a witness by the defendant to be read. In that testimony, the witness said, in summary, that if plaintiff’s history be accepted as true, and considering his (the witness) clinical and X-ray findings, “you have to say in all likelihood there is some precipitating or aggravating factor on this pre-existing condition.”

The defendant also objected to the trial court’s action in refusing to permit to be read back other parts of the neurosurgeon’s testimony, as requested by defendant. In that part of his testimony, the witness said that he did not think that there had been any significant bone changes as a result of the February 28, 1964 event, but that each injury would aggravate the plaintiff’s preexisting conditions, osteoporosis and osteoarthritis.

Rule 287, T.R.C.P., provides that, if the jury disagree on a witness’ testimony as to a particular point, the trial court may have the witness’ testimony on that point read back to the jury in response to the jury’s request that such be done.

By the very nature of the situation that arises in the application of that rule, the trial judge is required to exercise judgment and discretion in deciding what part of the testimony is relevant to the point in dispute. The statement of facts in this case has more than 100 pages of medical testimony from five doctors. It, of course, had not been reduced to writing at the time the request was made and the task of selecting the portion relevant to the inquiry was not an easy one. Under such circumstances, the judge must be given broad discretion and his action held erroneous only where there is an abuse of that discretion with resulting harmful effects. American Nat. Bank v. Haggerton, Tex.Civ.App., 250 S.W. 279, no writ history.

We are of the opinion that the trial judge fairly selected the testimony to be read to the jury in response to its request. We are also of the opinion that granting the request of the defendant, excluding the part of the testimony objected to and including the part requested, would not have kept the dissenting juror from changing his vote. The juror testified, on the motion for new trial, that the testimony showed him to have been in error in his recollection of what the doctor had said. He also testified that he would not have changed his mind if all of the doctor’s testimony had been read back. We are of the opinion that the record does not disclose any harmful error by the trial court in its response to the jury’s request. American Nat. Bank v. Haggerton (supra), Rule 434, T.R.C.P.

The judgment of the trial court is affirmed.


author: COLEMAN, Justice.

text:
    GULF BITULITHIC COMPANY, Appellant, v. R. T. HERRIN PETROLEUM TRANSPORT COMPANY, Appellee.
    No. 15131.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Jan. 18, 1968.
    Vinson, Elkins, Weems & Searls, B. Jeff Crane, Jr., Raybourne Thompson, Jr., Houston, for appellant.
    John L. McConn, Jr., Howard L. Nations, Houston, Butler, Binion, Rice, Cook & Knapp, Houston, of counsel, for appellee.
   COLEMAN, Justice.

This is a suit for property damages resulting from a fire allegedly caused by the negligence of appellant. The trial court entered a judgment for appellee, plaintiff in the trial court, based on a jury verdict. The principal questions presented by this appeal relate to the sufficiency of the evidence to support the verdict of the jury.

On October 18, 1963, an R. T. Herrin Petroleum Transport truck driven by Domingo Lopez Baragan carried gasoline to the Gulf Bitulithic yard near Columbus, Texas. Upon arriving at the yard, he was directed to place his truck parallel to a gasoline storage tank and between it and a diesel fuel tank. After parking his truck as directed, he connected his two-inch hose with the storage tank by placing the nozzle of the hose in a three-inch opening located about 16 inches from the front of the storage tank and securing it with wire. He then started his truck motor and activated a power takeoff which pumped the gasoline from the tank truck into the storage tank.

Before the entire load of gasoline was transferred to the storage tank, it overflowed. When Baragan noticed this, he stopped the motor, but about ten gallons of the gasoline had spilled. He reported to appellant’s foreman, John Calvin Dixon, that the storage tank had overflowed and that he had about fifteen more gallons to deliver. (At another time Baragan testified that about fifty gallons remained) Dixon directed Ruben Caldwell, another of appellant’s employees, to draw gasoline out of the storage tank. A gasoline pump, somewhat similar to those found in filling stations, was located a foot or two from the front of the storage tank. It was connected to the bottom of the tank by a pipe, and was equipped with a hose and nozzle similar to those found on service station pumps. Power to operate the pump was provided by a gasoline engine, similar to a lawnmower engine, located at the side of the pump. The motor was started by use of a pull cord, and was stopped by grounding the spark plug located on the top of the motor with a metal lever, or by removing a wire to the spark plug.

Caldwell started the motor and filled the gasoline tanks of several trucks as they were driven up for that purpose. In excess of fifty gallons of gasoline were removed from the tank. As he began filling some five gallon cans, Baragan started pumping gasoline into the tank again. As the last of the gasoline was pumped out of the truck tank, it blew air and some gasoline came out of the opening through which the storage tank was being filled. A short time after that a fire started at the gasoline engine, causing the damage to the trailer and gasoline tank, to recover which this suit was brought.

The jury found that (1) just before the occurrence of the fire in question, Ruben Caldwell moved the hose nozzle in such close proximity to the gasoline engine mounted on the storage tank that drippings from the nozzle could strike said engine; that (1A) gasoline drippings from the hose nozzle fell on the gasoline engine mounted on the storage tank; that (2) such moving of the hose nozzle was negligence; and that (3) such negligence was a proximate cause of the fire in question.

The jury also found that Baragan warned Caldwell that he was resuming pumping and that he was not negligent in pumping gasoline into the storage tank while Caldwell was pumping gasoline out of it.

There was testimony that the gasoline motor was not covered while it was being operated, and that the exposed manifold would become hot enough to ignite gasoline spilled on it. There was also testimony that gasoline “more than likely” would be ignited if it hit the hot motor and vaporized and contacted a spark.

Ruben Caldwell testified that he was standing near the engine and was reaching to stop the motor when the explosion happened. He testified that he had dropped the gasoline hose and that no gasoline came out of the nozzle after he dropped it. He said he didn’t squirt any gasoline on the engine with the nozzle. He testified that he turned toward the engine when he saw Baragan running away while screaming: “Cut it off!” He saw gas just piling up out of a little pipe on top of the tank. It went twelve feet in the air and sprayed him. Before he could turn the engine off, there was an explosion. He received burns, the most severe being to his right hand. His shirt did not burn. He started running down the road. On a prior deposition he had testified that the gasoline was going at least two feet in the air and falling like spray. He also testified that it was after he saw Baragan running away that the fire started. His testimony was impeached to some extent in other respects by use of his prior deposition. In his deposition he also testified that the nozzle he was using was the same type used in service stations, and that after the lever on the nozzle was released drippings would come out.

Baragan testified that after he started his diesel engine the second time, he climbed up on top of the truck tank to watch it drain out. He saw it empty and his pump “blowed” air and some gasoline “bubbled” out of the storage tank. It barely came up and ran down the sides of the tank. This happened just before the fire. When the last compartment of the tank emptied, he got off of the truck and got in the cab. He stopped the truck engine and power takeoff and told Caldwell that he was through, as he reached for his clipboard. Caldwell turned around and looked at him. That was when the fire started. He was sitting in the cab of the truck and fire came through the window and burned his face. He got out and ran.

While he was sitting in the cab he saw Caldwell filling some cans with gasoline. When he turned toward him, he was also turning toward the gasoline pump, and he had the gasoline hose nozzle in his hand. The fire started when Caldwell turned.

Mr. Vackar, an employee of appellant, testified that he drove a pickup to get gas a short time before the fire and didn’t see any signs that the tank had overflowed. While he could smell gasoline, the odor of gasoline was always present from “drippings on the ground.” “You always had your drippings off your nozzle.”

Mr. George Orange testified that he was working about three hundred feet from the tank when the fire started. He saw the tank overflow the first time, but could not tell how much spilled. He saw the. driver go and talk to Dixon, and then saw two men drive in a pickup truck to the storage tank. In a few minutes, roughly ten or fifteen minutes, the fire broke out. He saw two men run from it. When he first saw them they were running in the road about twenty feet from the tank and Ruben Caldwell was ahead. He didn’t see any gas spilling over at the time the fire “broke out.” He knew that both Caldwell and the Herrin driver were burned by the fire. The driver was burned on the left side of his face and his ear. There was a breeze, but not a strong wind, and it was blowing away from the front of the tank.

There is direct evidence that the fire started at the gasoline engine, but there is no direct evidence as to the cause of the fire. The jury's verdict necessarily rests on inferences drawn from the evidence. The jury necessarily believed that the fire resulted from the ignition of gasoline fumes by the gasoline engine. There is no evidence pointing to an alternative theory. There is direct evidence that gasoline fumes were in the vicinity of the engine; that the manifold will become hot enough to ignite gasoline fumes; that the spark plug was unprotected and had electricity going through it, and that “that electricity can start gasoline burning if it gets on there”; that the engine had been running 10 to 15 minutes; that under such circumstances fire will result. The inference that the fire resulted from the ignition of gasoline fumes by the engine was a permissible one. McMillen Feeds, Inc. of Texas v. Harlow, 405 S.W.2d 123 (Tex.Civ.App., Austin, 1966, ref., n. r. e.) ; Republic Ins. Co. v. Inverness Estates, 252 S.W.2d 251 (Tex.Civ. App., Ft. Worth, 1952, error ref.).

The jury .found that the source of the gasoline fumes ignited by the engine was the drippings from the hose nozzle. The evidence presents other possible sources for gasoline fumes: (1) the ten gallons spilled some time before the fire; (2) the gasoline spilled when the pump “blowed” air into the storage tank.

“When there is no direct evidence, and the proven circumstances are consistent with either of two theories, and there is nothing to show that one rather than the other is correct, neither is proven * * * ” Bonner v. Texas Co., 89 F.2d 291 (Cir.Ct. of App., 5th Cir.1937).

“Where circumstantial evidence is relied upon the testimony must establish circumstances to support the inferences drawn and these circumstances must be such as to make the truth of the fact proposition inferred more likely than not. * * * The same evidence may properly be the source of inferences as to the truth of several basic fact propositions. McDonald, Texas Civil Practice, § 11.28, pp. 1035-1036.” Anchor Casualty Company v. Bowers, 385 S.W.2d 568 (Tex.Civ.App., Houston, 1965, rev’d on other grounds Tex., 393 S.W.2d 168).

“ * * * The trial court may draw any reasonable inference from the evidence and any doubts as to the facts raised by the evidence will be resolved in favor of the judgment * * * ” Republic Ins. Co. v. Inverness Estates, supra.

The jury is the judge of the credibility of the witnesses and of the weight to be given their testimony, and its determination in this regard will not be disturbed on appeal. Salmon v. Salmon, 406 S.W.2d 949 (Tex.Civ.App., Ft. Worth, 1966, ref., n. r. e.).

The first alternative mentioned above is the least likely immediate cause of the fire. A considerable time had elapsed after the ten gallons of gasoline had spilled before the gasoline engine was started. The prevailing breeze would tend to disperse the fumes and blow them away from the engine. The engine ran for ten to fifteen minutes before the fire. Vackar noticed no unusual smell of gasoline when his truck was filled. Caldwell apparently was not aware of a ■concentration of fumes since he did start the engine and remain there.

The jury apparently discounted the testimony of Caldwell, and accepted that of Baragan that when the air blew into the storage tank only a small amount of gasoline bubbled over and ran down the sides of the tank. In view of the testimony as to the prevailing breeze and the location of the motor with reference to the engine, the jury could have concluded that neither drops of gasoline nor gasoline fumes reached the engine from this source.

On the other hand the jury might have determined that gasoline reached the motor from testimony that drippings always remain in the hose nozzle after the flow of gasoline is shut off; that Caldwell had the nozzle in his right hand when he turned and came in close proximity to the engine; that the fire started just after he turned; and that his right hand was burned worse than other parts of his body.

Circumstances sufficient to support the inference that the fire was started when gasoline drippings from the hose nozzle hit the engine were established by direct evidence. The evidence is sufficient to meet the tests set out in the cases previously cited. The answers made by the jury to these issues are supported by substantial probative evidence and are not so against the great weight and preponderance of the evidence as to be clearly wrong. Fisher Const. Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126 (1959); Southland Life Ins. Co. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854 (Tex.Com.App., 1942, opinion adopted); Salmon v. Salmon, 406 S.W.2d 949 (Tex.Civ.App., Ft. Worth, 1966, ref., n. r. e.).

In view of our disposition of these points of error, we consider it unnecessary to discuss the other points raised by appellant. The judgment of the Trial Court is supported by the verdict on the issues discussed.

The judgment of the Trial Court is affirmed.