text:
    Clyde McKNIGHT, Appellant, v. The STATE of Texas, Appellee.
    No. 39885.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1966.
    Rehearing Denied Jan. 18, 1967.
    W. Alfred Winder, Fort Worth, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

This is an appeal from an order revoking probation.

On December 5, 1956, appellant was convicted, upon,a plea of guilty, of the offense of felony theft and assessed punishment at confinement in the penitentiary for ten years.

Execution of sentence was ordered suspended by the court and appellant was placed on probation upon certain terms and conditions. Among the conditions imposed were that appellant:

“(6) Report to the Adult Probation Officer of Tarrant County immediately, and thereafter, as directed by him;
“(9) Make restitution of $22,238.00 and any other outstanding checks,
“Payment of $500.00 by December 5, 1956, payment of $200.00 January 1, 1957 and $200.00 first of each month thereafter until full restitution is made.”

On September 27, 1965, a motion was filed by the state to revoke the probation, which alleged that appellant had violated the terms and conditions of probation in that he:

“1. Failed to report to the Adult Probation Officer of Tarrant County immediately and thereafter on the first of each month.
“2. Failed to make restitution in the amount of $22,238.00 plus all outstanding debts, by paying $500 on December 6, 1956 and the balance at the rate of $200.00 per month beginning January 1, 1957.”

On October 22, 1965, a hearing was held by the court on the state’s motion to revoke the probation. At the conclusion of the hearing the court found that appellant had violated the conditions of his probation and ordered the same revoked. On January 21, 1966, an order was entered by the court revoking the probation upon a finding that appellant had violated the terms and conditions of probation by failing “to make restitution in the amount of $22,-238.00 plus all outstanding debts, all as ordered by the Court.”

In such order, the court further directed that the sentence originally pronounced in the cause be changed and reduced to “NOT LESS THAN 2 YEARS NOR MORE THAN 5” years’ confinement in the penitentiary.

From such order appellant in open court excepted and gave notice of appeal.

In appeals of this nature this court’s review is limited to a determination of whether the trial court abused his discretion in revoking probation. Soliz v. State, 171 Tex.Cr.R. 376, 350 S.W.2d 566; Wicker v. State, Tex.Cr.App., 378 S.W.2d 332.

At the hearing it was shown by the state’s testimony that in addition to the $22,238 ordered to be paid by appellant, there were other outstanding debts which had been incurred by him in his business that increased the amount of restitution to be made under the court’s order to the total sum of $31,381.36.

On the date appellant was placed on probation, he paid the amount of $500 fixed in the order. In the year 1957 he paid the sum of $2,400 and in 1958 he paid the sum of $1,825.94.

In January, 1959, after the death of appellant’s father-in-law, who had been assisting him in making the payments, Judge McGee notified the probation officer that appellant’s payments had been reduced to $100 per month. Thereafter, in the year 1959, appellant paid $900. In the year 1960 he paid $825. In 1961 he paid $800, and in 1962 he paid $375. In 1963 appellant’s payments totaled $775. In 1964 his payments totaled $750.

The total amount of restitution credited to appellant’s account in the records of the Adult Probation office was $9,675.94.

Both the appellant and his wife testified in his behalf at the hearing. It was shown by their testimony that appellant operated a paint and body shop and also a wrecking business. Appellant swore that he had “quite a struggle” due to bad debts in the business and that he had tried to pay the money back as best he could. He stated that his business had improved and his present take-home pay was between $400 and $500 per month and that if continued on probation he would “try to” do his best to make the payments. Appellant’s wife testified that appellant did work regularly in his business and was kind to her and their two children, ages eight- and eleven years.

Here we have a defendant, serving his ninth year of a ten-year probated sentence, who has made restitution of $9,675.-94 on total debts outstanding in the sum of $31,381.36. His inability to make payments of $200 per month was recognized by the judge who granted his probation by reducing the amount of his payments in half. There is no showing that appellant intentionally failed to make any payments under the court’s order. There is no showing that he has violated any law of this state or the United States since being placed on probation. His reports to the probation officer appear to have been in substantial compliance with the officer’s orders. His failure to report on any occasion is not set out, as a ground for revoking the probation, in the court’s order.

Under the record, appellant ought not to go to' the penitentiary for failing to make the payments prescribed in the order placing him on probation.

We find that the court did abuse his discretion in revoking the probation.

The judgment is reversed and the cause is remanded.

Opinion approved by the court.


source: Caselaw Access Project

author: MORRISON, Presiding Judge.

license: Public Domain

text:
    Willie James BATES, Appellant, v. The STATE of Texas, Appellee.
    No. 39762.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1966.
    Second Rehearing Denied Jan. 11, 1967.
    Victor R. Blaine, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Presiding Judge.

Our prior opinion is withdrawn, and the following substituted in lieu thereof.

The offense is murder without malice; the punishment, five years.

Notice of appeal was given prior to January 1, 1966.

The State’s witness Jennings testified that on the day in question he participated with appellant and deceased in consuming several bottles of gin, and that later in the evening, following an argument over fifty cents, appellant shot deceased. At the conclusion of the shooting, appellant backed out of the establishment saying, “Don’t anyone come up on me.” It was shown that the deceased died from this wound.

Appellant testified to substantially the same set of facts, except that he insisted that it was whiskey he and deceased were drinking, denied that Jennings was present, and stated that his pistol accidentally discharged as he was transferring it from one pocket to another. He also called other witnesses who denied that there had been an argument between appellant and deceased.

The jury resolved the disputed issue of accident against the appellant, and we find the evidence sufficient to sustain the conviction.

The only question requiring discussion relates to the examination of the State’s witness Herbert Bowie. Earlier in the case Detective Hall had testified that he had taken a written statement from Bowie on the night in question. The prosecutor exhibited the statement to the witness and he identified his signature, but stated that he did not have his glasses at the time he signed it and was drinking and “pretty full” at the time it was made. The prosecutor then asked Bowie if he had not stated that this was cold blooded murder. After the question was propounded, the court sustained appellant’s objection, and the jury was instructed not to consider the question, and the statement was not introduced in evidence. We have concluded that the asking of the question standing alone did not constitute impeachment.

In Secrist v. State, 131 Tex.Cr.R. 182, 97 S.W.2d 196, this Court said:

“Bill of exception No. 14 shows that the county attorney asked the witness Bobby Lea the following question: ‘Didn’t you tell me that she was a hustling woman? Aren’t those the words you used? A. No, Sir. I don’t remember.’ There the matter ended. This shows no error.”

In Shaw v. State, 89 Tex.Cr.R. 205, 229 S.W. 509, this Court had occasion to draw a distinction between refreshing the memory of the witness and impeaching him. See also 1 Branch’s 2d Ann.P.C., Sec. 182, p. 190, and Lopez v. State, 171 Tex.Cr.R. 552, 352 S.W.2d 106.

The judgment is affirmed, and appellant’s motion for rehearing is overruled.


author: BELCHER, Commissioner.

text:
    James Allen LAMBRECHT, Appellant, v. The STATE of Texas, Appellee.
    No. 39242.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1966.
    Rehearing Denied Jan. 11, 1967.
    Jack Hampton, Dallas, for appellant.
    Henry Wade, Dist. Atty., Frank Watts, Tom F. Reese, Jr., W. John Allison, Jr., and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

The conviction is for robbery; the punishment, nine years.

Notice of appeal was given prior to January 1, 1966.

Glen Otis Hall testified that on September 3, he had been operating a service station owned by Raymond St. Clair for about two weeks; that the appellant had been coming by the station almost daily during this time; that while alone about 3 a. m., September 3, he looked up, after hearing footsteps, to see a man wearing a brown paper mask with his hand in a sack containing what looked like a pistol, saying: “Git in that washroom or I’ll blow you in two,” which put him in fear of his life or bodily injury; that he had seen the appellant across the street at another service station about midnight and at 2 a. m., before the robbery at 3 a. m.; that the robber’s face was only partially covered, and he recognized the side of the face, the physical build, and the voice of the robber as those of the appellant, and identified the appellant, while testifying, as the man who robbed him and he so informed the officers who apprehended the appellant about 4:30 a. m., that night; that he had the care, control, and management of the station and the property therein, and that he did not give the appellant or anyone his consent to take the money from the cash register which was more than one hundred dollars.

Raymond St. Clair, the owner of the station, testified that the appellant had operated the station for him from July until the latter part of August, 1964; that more than three hundred dollars was missing from the station after the robbery on September 3; and that Hall had possession of the station at the time of the robbery.

The testimony reveals that the appellant was apprehended as he was leaving his apartment at 4:30 a. m., following the robbery at 3 a. m.; and the money taken in the robbery was found by the officers in the apartment at the direction of the appellant, and also at appellant’s direction credit cards and checks taken in the robbery were found by the officers on a nearby lot.

Following the introduction of testimony which complied with the statutory provisions in effect at the time of the making of a written statement by the appellant, September 3, 1964, it was introduced in evidence by the state and reads in part as follows:

“My name is James Allen Lambrecht. * * * I have been employed * * * for Ray St. Clair * * *. Last week Mr. St. Clair fired me for having a fight with one of his regular customers. * * It was about 2:00 AM this morning and my wife and I drove to the station and she let me out of the car and I went around to the back of the station and pulled the main electric switch which cuts off the lights and had planned to go inside the station and get the money, then I remembered that the cash register wouldn’t work without electricity, so I cut the lights back on. The man working there at the station was working out in front of the station at that time. I then went to where our car was and me and my wife went home. I then decided to go back and get the money and I made myself up with a silk stocking and we drove back to the station. Linda was driving and I told her to go around to the service road and wait for me. I got out of the car and went around to the back of the station and waited there until I saw her circle around and come back on the service road across the embankment and stop. Then I went inside the station where the man was working on a tire in the washroom, I had a brown paper sack in my hand. I told this man to get in the back room and stay there and he began giving me some lip and I again told him to get in the back room and stay there. I then opened the cash register and got a bunch of bills and change and ran out of the station and ran east across the Loop 12 service road onto Loop 12 southbound where Linda came and picked me up after I had motioned to her. We then went on home and we counted the money and as well as I remember there was approximately $200.00 in cash and some change. We put some of the money into Linda’s wallet and put the rest of it in the flour canister in the kitchen. I hid some checks and credit cards out in some bushes. This statement is the truth as far as I can recall all the circumstances.”

An independent hearing was held by the trial court in the absence of the jury on the voluntary nature of the confession. No evidence was offered by the appellant. The court found that appellant’s written statement was freely and voluntarily made.

The appellant did not testify or offer any evidence in his behalf on the main trial.

It is contended that the trial court erred in admitting testimony of an extraneous offense.

When St. Clair, the owner of the service station and former employer of the appellant, was asked about the reason for appellant ceasing to work for him, the objection that it was irrelevant was overruled. Upon St. Clair’s answer that appellant’s dismissal was for the reason that he and a customer had an argument in the station, and some blows were passed but no charges were filed, the appellant’s objection that “another offense not being related to this” was sustained as to any other charges. Appellant’s written statement reciting in part that “Mr. St. Clair fired me for having a fight with one of his regular customers,” was introduced in evidence. Appellant’s objection to the statement that “It’s immaterial and irrelevant; it’s bolstering. It’s inadmissible,” was overruled.

In light of the objections made and the rulings thereon, no reversible error is presented.

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

Opinion approved by the court.


text:
    John Milton BRADLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 39946.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1966.
    Rehearing Denied Jan. 18, 1967.

      Otis Scruggs, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., Ray Moses and Alvin A. Horne, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

The conviction is- for robbery by assault; the punishment was assessed at five years.

The trial was had after January 1, 1966, and notice of appeal was given on March 25, 1966.

The testimony of the state reveals the robbery of a city bus driver at a bus stop while on a routine run, and then carrying two passengers.

Error is assigned on the ground that the evidence is insufficient to show the identity of the appellant as the person who committed the robbery alleged.

O. B. Post, the bus driver, testified in part as follows:

“Q Do you see either one of those persons here today who robbed you?
“A Yes_sir.
“Q Would you point him out, please ?
“A Well, he is right there.
“Q Let the record reflect he indicated the defendant seated at the counsel table next’ to Counsel. Now, is there any doubt in your mind that this defendant here is one of the persons who robbed you?
“A That’s him. No sir, I know its him.
“Q All right, sir, would you be able to tell the jury which one of these men this defendant is? Is he the one with or without the stocking?
“A He is the one without the stocking.
“Q Which one had the gun?
“A This one here, the one without the stocking.
“Q Which one fired the shots?
‘A This one here, the one without the stocking.
“Q And there is no doubt in your mind that this is one of the people that robbed you?
“A I know it’s him.
“Q As the defendant and his companion backed off of - the bus — where was this defendant when he started shooting ?
“A He was standing on the ground right at the foot of the steps at the front door.
“Q And how many times were shots fired, or.do you recall?
“A Three times.
* * * * * *
“Q Now, this one, or the one that didn’t have on the stocking was standing on the step of the bus ?
“A No_sir, he was standing right side of me.
“Q He was standing by the side of you ?
“A With a six-shooter in my side.”

Tommy Heads, a passenger in the bus, testified in part as follows:

“Q Now, do you see in the courtroom today that first man?
“A Yes_sir.
“Q Would you point him out, please?
“A Right there.
“Q You are talking about the man in the sweater ?
“A Yes_sir.
“Q Let the record reflect that the witness pointed out the defendant, John Milton Bradley. Now, is he the man who had the gun ?
“A Yesjsir.
“Q Is there any doubt in your mind that that’s the man that came in and asked for the money and had the gun? Did you understand me? Is there any doubt in your mind that that’s the person that robbed Mr. Post?
“A Yes_sir.
“Q Is there — Yes, there is a doubt or no, there is not a doubt?
“A He is the one, yes sir.
“Q You are sure of that?
“A Yes_sir.”

The evidence is sufficient to warrant the finding of the jury that the appellant was the person who committed the robbery alleged.

The appellant assigns as error the admission of the testimony of Officer Baker on the question of his probation. On the election of the appellant to have the jury assess the punishment, Baker was called as a witness. The only portion of his testimony complained of was:

“Q Do you know the defendant, John Milton Bradley?
“A Yes_sir, I do.
“Q Do you know his — that is just a yes or no question: do you know his reputation in the community in which he lives and among the persons with whom he associates as to whether or not he is a peaceful and law-abiding citizen? Do you know that reputation?
“A Partially, yes_ sir.
“Appellant’s Attorney: Well, if he doesn’t know it, he just doesn’t know it. I don’t think he is qualified to answer, Your Honor. He said partially.
“The Court: You may proceed.
“Q (State’s Attorney) Is that reputation good or bad?
“A It is not good.”

After the state had concluded its testimony, the appellant in the absence of the jury made the following motion:

“Appellant’s Attorney: Your Honor, I move for a mistrial. I think it is improper evidence to put on before this jury, that partially. He didn’t know. I don’t think it is proper to submit it to the jury and I move for a mistrial.
“The Court: Overruled.
“Appellant’s Attorney: Note my exception.”

The observations of the appellant as to the qualifications of the witness did not constitute any objection.

No motion was made to strike the answer of the witness or to instruct the jury not to consider it. No request was made to take the witness on voir dire to determine his knowledge of the matter inquired about. The refusal to declare a mistrial was not error.

The judgment is affirmed.

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    Mary Laverne PURVIS et al., Appellants, v. The STATE of Texas, Appellee.
    No. 39838.
    Court of Criminal Appeals of Texas.
    Nov. 30, 1966.
    Rehearing Denied Jan. 18, 1967.

      No attorney on appeal, for appellants.
    Carol S. Vance, Dist. Atty., Ted Hirtz, Asst. Dist. Atty., Houston, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

This is an appeal by the sureties in a bond forfeiture case.

No brief has been filed in this court, as required by Rule 414, Rules of Civil Procedure, which is applicable in bond forfeiture cases. Art. 44.44, Code of Criminal Procedure of 1965.

Failure to comply with such rule authorizes dismissal of the appeal. Rule 415, R.C.P.; Sherrill et al. v. State, Tex.Cr.App., 375 S.W.2d 721; Newton et al. v. State, Tex.Cr.App., 382 S.W.2d 926.

The appeal is dismissed.

Opinion approved by the Court.


text:
    J. B. FULLER, Appellant, v. The STATE of Texas, Appellee.
    No. 39945.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1966.
    Rehearing Denied Jan. 18, 1967.

      Leighton Cornett, Paris, for appellant.
    Jim N. Thompson, County Atty., M. D. Emerson, Asst. County Atty., Paris, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

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

Trial was after January 1, 1966.

The state’s testimony was undisputed that appellant shot the injured party with a .38 calibre pistol after the injured party had reprimanded appellant in a domino hall for making a statement that he (appellant) ought to go get his gun and kill everyone present. Both parties had left the hall and at the time of the shooting some twenty minutes later the injured party was standing at a street corner near a fire plug and appellant was standing, at relatively close range, near his automobile, in the middle of the street. The testimony of the state’s witnesses was, in substance, that appellant drove up in his automobile, got out, and fired five shots at the injured party without any legal justification or excuse. The first shot missed its mark but the other four bullets struck the injured party’s body.

Testifying in his own behalf, appellant admitted shooting the injured party but gave no explanation for the shooting. Appellant swore, however, that he did not intend to kill him.

The court submitted to the jury in his charge the issue of appellant’s guilt of assault with intent to murder both with and without malice.

Appellant objected to the charge on the ground that it did not contain a charge on the law of aggravated assault. The objection was overruled, which action of the court is the basis for appellant’s ground of error #1 on appeal.

Appellant insists that, in view of his testimony that he did not intend to kill the injured party, the court should have charged on aggravated assault. Watts v. State, 151 Tex.Cr. 349, 207 S.W.2d 94, is relied upon in support of his contention.

Watts v. State, supra, is not here controlling, because, in that case, the accused testified that he shot in self-defense with no intent to kill the injured party; his testimony and the other facts and circumstances rendered it doubtful whether he had the intent to kill, and a charge on aggravated assault was required. In the instant case, appellant made no explanation of the shooting but merely stated that he had no intent to kill. The facts and circumstances show a premeditated and unprovoked shooting of the injured party by appellant, with a deadly weapon; his testimony, under the facts, did not render doubtful his intent to kill. As pointed out in the Watts case, it is in those prosecutions where the proof is inconclusive as to the existence of a specific intent to kill that the court must charge on aggravated assault. Here, the proof of appellant’s intent to kill was conclusive, and a charge on the lesser offense was not required. Day v. State, 120 Tex.Cr.R. 17, 48 S.W.2d 266. See, also, Royal v. State, 154 Tex.Cr.R. 567, 228 S.W.2d 162, in which this court held that a mere denial of intention to kill did not require the affirmative submission of such as a defense.

We have examined the court’s instruction defining murder with and without malice aforethought, and overrule appellant’s ground of error #2 — which is, in substance, that the court’s definition was an incorrect statement of law and prejudicial to him.

Following return of the jury’s verdict of guilty, appellant requested that the jury assess the punishment. Thereupon, evidence was presented to the jury on the question of punishment under the alternate procedure provided by Art. 37.07, subd. 2 of the 1965 Code of Criminal Procedure.

Appellant testified, in support of his application for probation of sentence, that he had never been convicted of a felony in this or any other state. He also called certain character witnesses, who testified that his reputation for being a peaceable and law-abiding citizen was good.

On cross-examination, the state asked several of the character witnesses if they had heard of certain convictions of appellant in the corporation court for affray. On cross-examination of appellant, state’s counsel asked:

“Q. Are you the same J. B. Fuller that was convicted of the offense of assault on the 19th day of October, 1962, in Judge Streety’s Juctice of Peace Court.”

Appellant objected and moved for a mistrial on the ground that it was “an improper method of attacking the reputation or character of this defendant.” The objection was by the court overruled, and appellant answered:

“I have been arrested before, yes, sir.”

By ground of error #3, appellant insists that the court erred in permitting state’s counsel to question him relative to his conviction in the justice court of the misdemeanor offense of assault. It is first insisted that the state should not be permitted to show the conviction as a part of appellant’s “prior criminal record,” under Art. 37.07, subd. 2(b) of the 1965 Code, because it was not a conviction for a felony offense or a misdemeanor offense involving moral turpitude. It is also insisted that, assuming the conviction to be admissible as a part of appellant’s “prior criminal record,” under Art. 37.07, supra, the inquiry should not have been made because it was shown at the hearing of appellant’s motion for new trial that the conviction was void because it was based upon an invalid complaint.

Recently, in Rojas v. State, Tex.Cr.App., 404 S.W.2d 30, a prosecution for the felony offense of driving while intoxicated, in construing Art. 37.07, which provides for the alternate procedure used in fixing a defendant’s punishment, we held that a conviction for the misdemeanor offense of drunken driving was admissible as a part of the defendant’s prior criminal record.

We hold that the prior conviction in justice court for the misdemeanor offense of simple assault was admissible as a part of the appellant’s prior criminal record, under Art. 37.07, supra. We do not agree that because it is shown in a collateral attack upon the judgment of conviction that it is based upon an invalid complaint it cannot be shown as a part of the prior criminal record. The record shows that the justice court conviction had become final and that the fine assessed in the judgment had been paid by appellant. Appellant’s third ground of error is overruled.

Appellant’s fourth ground of error is that the court erred in refusing his request to examine the state’s jury list after the jury had been empaneled but before it had been sworn. It is appellant’s contention that he had the right to examine the state’s jury list after it had been turned in to the clerk and to re-strike his own list, under the authority of Art. 35.13 of the 1965 Code, which reads:

“A juror held to be qualified shall be passed for acceptance or challenge first to the State and then to the defendant. Challenges to jurors are either peremptory or for cause.”

It is clear that the foregoing Art. 35.13, supra, is only applicable where the jurors are being examined individually on voir dire in capital cases, as provided in Art. 35.17 of the Code, and each juror is being tried and passed upon separately as to his qualification under the provisions of Art. 35.20 of the Code. Art. 35.13 is not applicable to the selection of jurors in non-capital cases where the parties strike the name of each juror peremptorily challenged from the jury list furnished by the clerk and then deliver the list to the clerk, as provided by Arts. 35.25 and 35.26 of the Code. The fourth ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.


author: DICE, Commissioner. MORRISON, Presiding Judge.

text:
    David Edward MULLINS, Appellant, v. The STATE of Texas, Appellee.
    No. 39836.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1966.
    Rehearing Denied Dec. 31, 1966.

      Floyd A. Hunter, Greenville, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

Burglary is the offense; the punishment, enhanced under Art. 63, Vernon’s Ann.P.C., by reason of two prior convictions for felonies less than capital, life imprisonment.

Trial was after January 1, 1966, under the 1965 Code of Criminal Procedure.

The indictment charged, in the first paragraph, commission of the primary offense on or about August 3, 1965, and in subsequent paragraphs alleged fifteen prior felony convictions for offenses less than capital.

Trial was under the alternate procedure provided by Art. 37.07 of the 1965 Code. Appellant’s plea was that of not guilty and the issue of his guilt was first submitted to the jury without authority to pass upon the punishment to be imposed.

Upon return of the verdict of guilty, appellant elected to have the jury fix the punishment.

Thereupon, the state proceeded to offer evidence bearing on the question of punishment to be assessed.

Numerous exhibits were offered by the state including certified copies of indictments, judgments, and sentences to prove the fifteen prior felony convictions alleged in the indictment. Certain authenticated prison records including photographs, fingerprints, and copies of certain indictments, judgments, and sentences were also offered.

In proof of the prior conviction alleged in the third paragraph of the indictment, the state offered in evidence certified copies of the indictment, judgment, and sentence in cause #15,287, styled The State of Texas v. David Edward Mullins, on the docket of the 6th Judicial District Court of Fannin County, which showed that on October 4, 1963, the defendant named therein was convicted of the offense of burglary and sentenced to three years in the penitentiary.

In proof of the prior conviction alleged in the ninth paragraph of the indictment, the state offered in evidence certified copies of the indictment, judgment, and sentence in cause #15,153, styled The State of Texas v. David Edward Mullins, on the docket of the 6th Judicial District Court of Fannin County, which showed that on May 4, 1960, the defendant named therein was convicted of the' offense of burglary and sentenced to five years in the penitentiary.

Proof was made in the manner approved by this court by comparison of fingerprints that appellant was the person convicted in the two causes. It was also shown that it was the appellant who was convicted in the other prior convictions alleged.

No evidence was presented by the appellant, and at the conclusion of the testimony the jury retired, under instructions of the court, to determine whether the allegations set forth in the third and ninth paragraphs of the indictment were true and to return a verdict fixing punishment in ‘ the case.

Thereafter, the jury returned its verdict finding the allegations set forth in the third and ninth paragraphs of the indictment to be true, and fixed appellant’s punishment at imprisonment in the penitentiary for life.

Error is urged to the court’s action in refusing to sustain appellant’s motion to quash paragraphs two to sixteen of the indictment and permitting the state to read such allegations to the jury and make proof thereunder of the fifteen prior convictions alleged.

Several of the paragraphs alleged prior convictions on the same day, to which appellant excepted on the ground that the state had failed to elect which paragraphs (convictions) were relied upon to enhance the punishment and that for such reason he was unable to prepare his defense.

It is the rule that where there are two or more convictions on the same day, only one may be relied upon by the state to fix the status of an habitual criminal upon the accused. Nunn v. State, 133 Tex.Cr.R. 266, 110 S.W.2d 71; Gammill v. State, 135 Tex.Cr.R. 52, 117 S.W.2d 790; Gilbert v. State, 136 Tex.Cr.R. 20, 123 S.W.2d 658; Ex parte Huff, 166 Tex.Cr.R. 508, 316 S.W.2d 896.

While appellant’s motion to quash the objectionable paragraphs in the indictment was well taken, we perceive no reversible error, in view of the procedure used in the case. The paragraphs in the indictment charging the prior convictions were not read to the jury and no proof was offered thereon until after the return of the jury’s verdict of guilty.

The two convictions relied upon by the state for enhancement under Art. 63, supra, were not on the same day and it was alleged and proven that the second conviction was subsequent to the first, both in point of time of commission of the offense and the conviction therefor. Both convictions were alleged and shown to be prior to commission of the primary offense.

The fact that some of the previous convictions were on the same day would not preclude their being shown as part of appellant’s prior criminal record, under the provisions of Art. 37.07, Sec. 2(b), supra. Nor did the fact that some of the prior convictions were not sufficiently alleged for enhancement under Art. 63, supra, preclude their introduction in evidence as part of appellant’s criminal record, under Art. 37.07, sec. 2(b), supra.

The judgment is affirmed.

Opinion approved by the Court.

OPINION ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Presiding Judge.

Appellant raises only one point of error in his motion for rehearing. He contends that use of the prior convictions to enhance his punishment, as provided by Article 63, Vernon’s Ann.P.C., violates the Fifth Amendment to the Constitution of the United States and Article I, Section 14 of the Constitution of the State of Texas, Vernon’s Ann.St. 5, in that such use places him in jeopardy a second time for the convictions so used. As this Court pointed out in Phariss v. State, 149 Tex.Cr.App. 489, 196 S.W.2d 826, in rejecting a like contention, the State in alleging the prior convictions was not seeking to again convict the defendant, but was merely seeking to enhance his punishment for the offense for which he was then on trial in the event of conviction. The provisions of the Article do not create an offense, inflict additional punishment for a prior offense, or authorize a conviction on a habitual criminal charge; they merely prescribe more severe punishment based on persistence in crime. 16 Tex.Jur.2d, Secs. 403 and 404, pp. 624 and 625.

Finding no merit in appellant’s contention, his motion for rehearing is overruled.


author: MOORE, Justice.

text:
    The STATE of Texas, Appellant, v. Ava Louise ROBERSON et al., Appellees.
    No. 233.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 8, 1966.

      Waggoner Carr, Atty. Gen., of Texas, George C. Black, Jr., Asst. Atty. Gen., Austin, for appellant.
    Enoch Fletcher, Grand Saline, for ap-pellees, Ina Bell Thompson, and others, Trustees.
    Thomas W. Hathaway, Johnson, Hathaway & Jackson, Tyler, for appellees James Robert White and Mrs. Thomas Hathaway, Gdn.
   MOORE, Justice.

This is an appeal from an order of dismissal pursuant to plaintiffs’ motion for non-suit.

Plaintiffs, Ava Louise Roberson and the other trustees of Select Minority Trusts, brought this suit for declaratory judgment seeking to construe the terms of the trust indenture creating the trust. They named as defendants James Robert White and the other heirs of I. W. Thompson, the trustor. The State of Texas was also made a party defendant by naming the Attorney General, pursuant to the provisions of Article 4412a, Vernon’s Ann.Tex.Civ.St.

A chronological statement showing the various pleadings filed by the parties, together with the dates thereof, will be helpful in understanding the problem.

On July 24, 1965, the State of Texas answered plaintiffs’ petition with a general denial.

On September 10,1965, the plaintiffs filed their first amended original petition in which they named only the State as a party defendant. All other party defendants theretofore named in the original petition were omitted.

On September 20, 1965, Charlotte Ruth Thompson and Mrs. Charlie Thompson filed a petition in intervention claiming affirmative relief.

Despite the fact that White had been omitted as a party in the amended pleading, he nevertheless filed an answer on September 22, 1965, and in addition thereto filed a cross action seeking cancellation of the trust instrument on the ground of insanity of the trustor.

On October 4, 1965, plaintiffs filed their second amended petition, again naming only the State of Texas as a party defendant.

Subsequently, on October 20, 1965, plaintiffs filed a motion stating that they did not desire to further prosecute their suit and requesting that their cause be dismissed without prejudice. The motion was presented to the trial court on that date, but no formal order of dismissal was entered at that time.

Six days later, on October 26, 1965, the State filed a cross action against the plaintiffs in which the State also sought construction of the trust instrument and sought the application of the doctrine of cy pres to the charitable bequest.

On October 28, 1965, defendant White filed a pleading stating that he had no opposition to plaintiffs’ motion and that he would likewise file a motion to dismiss his cause of action on the same date. He did not, however, file his motion or bring it to the attention of the court until November 9, 1965.

A hearing was held to determine whether the motions would be granted. On February 3, 1966, the trial court entered an order dismissing the suit in its entirety as of October 20, 1965, the date of plaintiffs’ motion for non-suit. The State excepted to the ruling of the court and perfected this appeal.

The State admits that the trial court properly dismissed the plaintiffs’ cause of action, but contends that the court had no authority to dismiss the entire cause of action, including the State’s cross action. They take the position that since White’s petition for affirmative relief naming plaintiffs and the State as parties was pending on October 20th, the trial court was not authorized to dismiss White’s cross action as of that date because of the provisions of Rule 164, Texas Rules of Civil Procedure. Thus, they contend that because White’s cross action was pending and the court had jurisdiction over all parties until it was voluntarily dismissed by White on November 9th, the cross action filed by the State on October 26th was timely filed and the State therefore had a right to be heard on its cross action. Hence, they assert that the court erred in dismissing their cross action thus depriving them of a hearing on their claim for affirmative relief.

The rule governing dismissals or non-suits is Rule 164, supra, which reads as follows:

“At any time before the jury has retired, the plaintiff may take a non-suit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief. When the case is tried by the judge, such non-suit may be taken at any time before the decision is announced.”

The privilege of taking a non-suit is expressly authorized by the above rule. The right accorded by the rule is “absolute.” Renfroe v. Johnson, 142 Tex. 251, 177 S.W.2d 600; Morris v. University of Texas (Tex.Civ.App.), 348 S.W.2d 644.

Without doubt, a plaintiff has an absolute right to dismiss his cause of action at any time. However, once a claim for affirmative relief has been filed, plaintiff’s right to move for a dismissal or non-suit is limited to his cause of action only. Hoodless v. Winter, 80 Tex. 638, 16 S.W. 427. In other words, when his adversary has previously filed a proper plea for affirmative relief against him, that plea is unaffected by the voluntary taking of a non-suit by the plaintiff. Under such circumstances, the court will proceed to trial on the affirmative pleading unaffected by the dismissal. 20 Tex.Jur.2d, Sec. 41, page 226.

This brings us to the question of whether any affirmative relief was requested by any of plaintiffs’ adversaries prior to the time plaintiffs sought a dismissal on October 20th.

It is without dispute that the State had not requested affirmative relief at that time.

We turn now to the question of whether White had a claim for affirmative relief on October 20th when plaintiffs sought to dismiss.

In this connection the record shows that on September 10th, plaintiffs filed their first amended petition. In that pleading, plaintiffs omitted all party defendants except the State. As a result defendant White was dismissed as a party just as effectively as if an order had been entered to that effect. Brennan v. Greene (Tex.Civ.App.), 154 S.W.2d 523, writ ref.; Ridley v. McCallum, 139 Tex. 540, 163 S.W.2d 833; Dingman v. Spengler (Tex.Civ.App.), 371 S.W.2d 416.

Thereupon, White became a stranger to the litigation. But this did not prevent him from later intervening in the suit, which he did. On September 22nd, approximately thirty days before plaintiffs moved to dismiss, he filed a pleading in the case seeking affirmative relief against both the plaintiff and the State. Although his pleading was styled as a cross action, we think it amounted to a plea of intervention since he was not a party to the original suit at that time. Rule 60, T.R.C.P. Nonetheless, his pleading stated a claim for affirmative relief. It was on file and undisposed of on October 20th when the court dismissed the case. The record shows that it remained on file until November 9th when it was dismissed on White’s own motion. Therefore, since White had a claim pending for affirmative relief against both plaintiffs and the State, on October 20th, we do not believe the court was authorized to dismiss and discontinue the litigation in its entirety on that date. Rule 164, supra. Without doubt, the court had a right to dismiss plaintiffs’ suit on that date, but as we see it, the court had no authority to dismiss the entire matter, including White’s claim for affirmative relief. It continued upon the docket and by reason thereof, the court continued to retain jurisdiction over both the plaintiffs and the State until November 9, 1965. In the meantime, the State filed its cross action against the plaintiffs. Thus, the posture of the case as it existed on October 20th, the date of the order of dismissal, was this: White was before the court with a plea of intervention seeking affirmative relief against plaintiffs and the State. His petition shows that all parties were notified of the filing of his plea. Charlotte Ruth Thompson and Mrs. Charlie Thompson were before the court with a plea of intervention claiming affirmative relief. The State was before the court with a general denial and a motion to strike White’s plea of intervention.

Consequently, even though plaintiffs had a right to have their cause of action dismissed on October 20th, such would not affect the claim for affirmative relief of White and Thompson. Their claim would remain on the docket and continue to be subject to the jurisdiction of the court. It was while these claims were thus still pending before the court that the State filed its cross action against the plaintiffs for affirmative relief. Therefore, since the State’s cross action was filed at a time when the court had jurisdiction over the pleas of intervention, as well as all of the parties, it appears to us that the State would be entitled to assert a claim for affirmative relief. Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677.

One of the purposes of Rule 164, supra, was to allow the court to retain jurisdiction over claims for affirmative relief, so as to avoid a multiplicity of suits.

The above and foregoing opinion is hereby substituted for the opinion heretofore delivered by the court reaching the same conclusion.

For the reasons stated, the cause must be reversed and remanded to the trial court for further proceedings on the State’s claim for affirmative relief.

Reversed and remanded.


author: McDONALD, Chief Justice.

text:
    Marvin M. SANDERS, Appellant, v. Marc CLOUD, Appellee.
    No. 4545.
    Court of Civil Appeals of Texas. Waco.
    Dec. 8, 1966.
    Rehearing Denied Dec. 22, 1966.
    Jimmy Morris, Mays, Jacobs & Peve-house, Corsicana, for appellant.
    Roe, Ralston & Brown, Corsicana, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Sanders from judgment on instructed verdict against him, in favor of plaintiff Cloud, in a suit on 15 notes.

Plaintiff sued defendant for $3,000 (plus interest) on IS notes of $200 each, payable on demand, which plaintiff alleged defendant signed and delivered to American National Insurance Company, and for which defendant received value. Plaintiff further alleged he signed the notes as an accommodation maker; that defendant did not pay American; that American demanded payment from plaintiff; that plaintiff paid the notes, and American assigned same to plaintiff. Defendant answered, pleading absence of consideration, and payment with earned commissions owing by American.

Trial was to a jury. At the conclusion of the evidence plaintiff moved for instructed verdict which was granted by the trial court. The trial court thereafter entered judgment on the verdict for $3,437.50. ($3,000 plus interest).

Defendant appeals on 8 points, contending the trial court erred:

1) In sustaining exceptions to his pleading, and not permitting him to introduce certain evidence.
2) In instructing verdict for plaintiff, an issue of payment having been made by the evidence.

Plaintiff is Area Agent for American National Insurance Company. He recruited defendant to become an insurance agent for American. Defendant borrowed some $22,-000 from American represented by 110 notes for $200 each. Plaintiff signed each note as an accommodation maker. Defendant received all of the money represented by the notes; plaintiff received none of such money. 88 notes were paid by defendant; 22 notes were unpaid when defendant ceased working for the company; 7 of the unpaid notes were barred by limitation; American demanded payment of plaintiff of the remaining 15 notes (of $200 each). Plaintiff paid same, received assignment of the notes from American, and brought the instant suit against defendant.

Defendant pled and sought to introduce evidence that the notes were not to be legal obligations; that he was merely signing a memorandum showing the amount paid him as salary as an advancement against future earned commissions; and that there was no consideration given for the notes. The trial court sustained exception to defendant’s pleading of the foregoing, and refused to admit evidence in support of same.

The notes are in evidence and are valid and unconditional upon their face. Defendant’s 1st contention is that he should have been permitted to plead and prove that he had been told he would not be held liable on the notes.

A promissory note cannot be contradicted by parol that it is not absolutely payable, or that it is payable in anything other than money. Lawther Grain Co. v. Winniford, Tex.Com.App., 249 S.W. 195; Robertson v. City Nat. Bank, Comm.App. adopted, 120 Tex. 226, 36 S.W.2d 481; Distributors Inv. Co. v. Patton, Comm.App. adopted, 130 Tex. 449, 110 S.W.2d 47; Mitcham v. London, CCA (nwh) 110 S.W.2d 140; Jones v. Hubbard, CCA (nre), 302 S.W.2d 493.

Plaintiff contends an issue of payment was made since the record reflects he earned some $13,738 in commissions which he testified he had not been paid. The evidence is undisputed that plaintiff signed 110 notes for a total of $22,000; that plaintiff had been credited with payment of 88 notes (for $17,600); that 7 notes for $1400 were barred by limitation; leaving 15 notes for $3,000 which plaintiff paid as endorser to American and received assignment on, and sued for in the instant case. No issue of payment was made and the instructed verdict was proper.

All defendant’s points and contentions are overruled.

Affirmed.


author: DENTON, Chief Justice.

text:
    H. L. GORDON et ux., Appellants, v. Russell E. CARVER et ux., Appellees.
    No. 7670.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 19, 1966.
    Ochsner, Nobles & Baughman, Amarillo, Harold W. Ochsner, Amarillo, of counsel, for appellants.
    Cowsert & Bybee, Hereford, J. Edward Line, Hereford, of counsel, for appellees.
   DENTON, Chief Justice.

This case originated in the Justice Court by written pleadings. Appellees Russell E. Carver and wife sued H. L. Gordon and wife for recision of the sale of a knitting machine. The plaintiffs alleged the knitting machine was not as represented; a tender of the knitting machine was made into court; and that plaintiffs purchased said machine from Mrs. Gordon and “paid to her the sum of $200.00”. The petition prayed for recovery of this sum. The defendants answered by general denial. Judgment was rendered for the plaintiffs for $200.00 together with interest from date of judgment and the defendants appealed to the County Court.

The defendants filed a plea to the jurisdiction in the County Court challenging the jurisdiction of the Justice Court on the ground the amount in controversy was in fact $201.00 rather than $200.00 as alleged in the petition; and that the reduced amount was alleged for the purpose of conferring jurisdiction upon the Justice Court. Attached to the plea to the jurisdiction was a photostatic copy of a written memorandum listing the knitting machine with a sales price of $179.50, a tax of $3.50 and a table at $18.00, totalling $201.00. Mrs. Carver signed a receipt for these items. With leave of the County Court, plaintiffs amended their original petition by decreasing their demand to $196.50 alleging this to be the amount paid for the knitting machine and table. The trial court overruled the plea to the jurisdiction without a hearing and entered judgment for plaintiffs for $196.50.

It is the general rule that the question of jurisdiction, insofar as the amount in controversy is concerned, is determined by the petition, and is concluded by the averments insofar as they state facts in relation to the thing in controversy. Salter v. Nelson (Tex.Civ.App.) 341 S.W.2d 567. Manning v. Lesher (Tex.Civ.App.) 290 S.W.2d 538. The amount in controversy is determined by the value to the plaintiff of the right he asserts in good faith in his pleadings which set forth the facts constituting his cause of action. Brannon v. Pacific Employers Insurance Company, 148 Tex. 289, 224 S.W.2d 466 and cases cited therein. The petition will be accepted as true for purposes of jurisdiction regardless of the truth of the allegations unless it is made to appear by pleadings and proof that the allegations were fraudulently made for the purposes of wrongfully conferring jurisdiction. Barnes v. United States Fidelity & Guaranty Co. (Tex.Civ.App.) 279 S.W.2d 919. 15 Tex.Jur.2d, Courts, Section 71.

In the instant case the averments in the written pleadings in the Justice Court do confer jurisdiction. Although the defendants below charged fraudulent allegations by plaintiffs to confer jurisdiction there was no evidence offered to support the charge of fraudulent allegations. Under the state of this record the allegations of plaintiffs’ petition must control to determine jurisdiction. Corsicana Independent School District v. Corsicana Venetian Blind Company (Tex.Civ.App.) 270 S.W.2d 296.

Appellant relies on Hooper Lumber Company v. Texas Fixture Company, 111 Tex. 168, 230 S.W. 141, among others. That case involved a suit on open account for merchandise in the amount of $202.50. The plaintiff abandoned and renounced his debt to the extent that it exceeded $199.75 and sued for the latter amount. The court held that because it was not shown the amount demanded “embraced any cause of action, either optional or severable, for the amount sought to be remitted” the Justice Court would not have jurisdiction. However, the court was careful to point out that if the demand “had admitted of a segregation of the amount sought to be remitted, a different question would have been presented”. The court held that in such an event the decision in Ft. Worth & R. G. Ry. Co. v. Mathews, 108 Tex. 228, 231, 191 S.W. 559 would apply. That case held: “[a] litigant may, at his election, omit to sue for any item which is due him (San Antonio & A. P. Railway [Co.] v. Addison, 96 Tex. [61], 64, 70 S.W. 200), and not thereby place such item in controversy, unless it is necessarily involved as a part of some other item of damage that has been placed in controversy”. We think this rule of law is applicable here. The transaction between the parties here involved three items: the knitting machine, a table, and the sales tax. They are severable items. A demand was not made for the recovery of the tax of $3.50 either in the petition filed in the Justice Court or the amended petition filed in the County Court. No claim was made for an amount in excess of the Justice Court’s jurisdiction.

The judgment of the trial court is affirmed.


author: NYE, Justice.

text:
    Kate Howard USHER, Appellant, v. GLASS, SORENSON & McDAVID INSURANCE COMPANY, Appellee.
    No. 241.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 15, 1966.
    Rehearing Denied Jan. 5, 1967.

      F. Warren Hicks, Houston, for appellant.
    W. N. Woolsey of Lewright, Dyer & Redford, Corpus Christi, for appellee.
   OPINION

NYE, Justice.

Plaintiff Kate Howard Usher filed suit against defendant Glass Sorenson & Mc-David Insurance Company, an insurance agency, for the return of premiums collected by them, alleging that defendant conspired with certain other defendants to cheat and defraud the plaintiff. The trial court granted defendant’s motion for summary judgment. Plaintiff has perfected her appeal to this court.

One of the defendants in this original suit was the temporary administrator of the estate of Howard S. Cunningham, deceased. Prior to the filing of the instant suit, an appeal from the admitting of a purported will to probate of decedent Cunningham was perfected to the district court and subsequently appealed to the Court of Civil Appeals and the Supreme Court. The appellate courts reversed the judgment of the district court admitting the will, and rendered judgment denying probate of the will. Usher v. Gwynn, 375 S.W.2d 564 (Tex.Civ.App. San Antonio 1964); Ashley v. Usher, 384 S.W.2d 696 (Tex.Sup.1964). Following the decision by the Supreme Court the plaintiff in this case, who was the sole heir of decedent Cunningham’s estate, brought suit against the County Judge who admitted the original will to probate, the temporary administrator of the Cunningham estate, the attorney representing the administrator, the lumber company who stored some of the personal effects of the decedent, the insurance company on the bond for the temporary administrator and on the bond for the County Judge, and the insurance agency where the bond and a policy of insurance were purchased. The plaintiff alleged that these defendants “willfully and maliciously conspired together and caused to be presented claims pending appeal and writ of error, * * * ” for attorney fees, commissions, bond and insurance premiums, and storage fees in the amount of $1629.65; that although the County Judge approved each of these claims and the same were paid by the temporary administrator from funds of the estate of Howard S. Cunningham, deceased, said defendants in presenting such claims had no lawful right to receive payment of such claims from the estate and that the plaintiff has therefore been cheated and defrauded of this sum.

Defendant-appellee answered this suit with a general denial and subsequently filed a motion for summary judgment. The trial court severed and re-docketed plaintiff’s suit against this defendant insurance agency separately from the other defendants named above. Defendant filed an affidavit in support of its motion for summary judgment setting forth evidence sufficient on its face to establish facts which if proven at the trial would entitle the defendant to an instructed verdict. . Plaintiff presented no evidence in support of her allegations in her petition.

The affidavit by defendant appellee stated that he was one of the owners of the insurance agency, and he was asked to write or provide a bond for the temporary administrator of the estate of Howard S. Cunningham, deceased; that he did provide such bond placing it with Aetna Insurance Company ; that he did not participte in the decision to require such bond of the administrator nor did he have anything to do with fixing the amount of the premiums paid as consideration for such bond; that he accepted payment of the premiums and forwarded the same to Aetna Insurance Company, less his commission; that this was the sole contact of the defendant with the matter of the temporary administrator’s bond. He stated that the only other contact defendant had with the estate was in regard to a request that he write insurance coverage on certain personal property of the estate that was in storage; that he wrote the coverage through one of his underwriting insurance companies, accepted payment, and forwarded the premium less his commission to the company; that he had nothing to do with the decision on the part of the estate or its representative to purchase the insurance and had nothing to do with fixing the amount of the premiums to be paid.

Plaintiff argues that although such claims were approved and payment was made prior to the decision by the Supreme Court, the County Court of Aransas County had no authority to do so, as its authority had been superseded by an appeal to the district court and to the appellate courts. Plaintiff contends that the mandate from the Supreme Court of Texas adjudging the costs to be taxed against the proponents (the losing parties) entitles her to the entire estate of the decedent and that all monies paid out and charged against the estate during the interim was done so without lawful authority; that this defendant recipient of a portion of these funds, should be required to reimburse the estate in the amount of $718.20 it received. Plaintiff summarizes her contention in her pleadings by alleging that the Supreme Court of Texas has “affirmed the judgment of said Court of Civil Appeals and has issued its mandate, dated January 20, 1965, and decreed ‘that accordingly probate of the will offered by proponents be denied’. Such decision of the Supreme Court of Texas holds that plaintiff is entitled to the full and complete estate of Howard S. Cunningham, deceased, of which he died seized and possessed.” We do not construe the holding of the Supreme Court as such.

Section 131 of the Probate Code, V.A.T.S. requires that a temporary administrator in order to qualify, must among other things file with the county clerk a bond approved by the court. Plaintiff contends that the cost of such bond must be borne by the temporary administrator individually and is not to be chargeable against the decedent’s estate. Citing Jarvis v. Drew, 215 S.W. 970 (Tex.Civ.App. Fort Worth 1919, writ ref.). She contends further that Section 194 of the Probate Code, Paragraph 11, permits the charging of the cost of the bond against the estate where a corporate surety has been used, only in such instances where the penal sum exceeds $50,000.00. This is not so. The Probate Code has been amended since the decision in Jarvis v. Drew, and Section 194 of the Probate Code does not so limit the charging of the costs of a bond with corporate sureties. The commentary following Section 194 says “Both in connection with estates of decedents and guardianships, the Legislature has encouraged the use of corporate sureties by providing that premiums on the bonds of such sureties shall be paid out of the assets of the estates * * 1790 Probate Code, Sec. 194, p. 619. Although this precise question of whether the premiums were a proper charge against the decedent’s estate under the above facts is not before us, we hold that in any event any cause of action based on any unlawful dissipation of the decedent’s estate by the payment of insurance premiums' on personal property or payments made to procure a bond for the temporary administrator, would be enforceable against the temporary administrator’s bond and not against the insurance agency writing such bond.

The summary judgment must be affirmed here because the plaintiff offered no evidence that defendant conspired with anyone to defraud the plaintiff. The plaintiff did not plead any facts setting up such conspiracy; her petition was not sworn, nor did she file any affidavits tending to impeach or discredit the affidavit of the defendant filed in support of his summary judgment motion. Although the uncontro-verted evidence here is from an interested witness, there are no circumstances and no evidence tending to discredit or impeach the defendant’s affidavit. This is an exception to the general rule but it is true especially where the plaintiff had the means or the opportunity of disproving the testimony if it were not true and failed to do so. Valley Stockyards Company v. Kinsel, 369 S.W.2d 19 (Tex.Sup.1963). Where facts entitling the moving party to prevail have been established by affidavit as in the instant case, the motion for summary judgment will not be denied even if the opposite party has alleged matters in its pleadings which if proved would require that a different judgment would be rendered. If the plaintiff expected to defeat the motion for summary judgment by showing an issue of fact as to whether a conspiracy was committed, it was incumbent upon her to come forward with “evidence” sufficient to raise that question. Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948 (Tex.Sup.1960); Spillyards v. Ferris Brick Company 390 S.W.2d 837 (Tex.Civ.App. Waco 1965, no writ).

In an action on motion for summary judgment where the motion is supported by an affidavit sufficient on its face to establish facts which if proven at the trial would entitle the movant to an instructed verdict, the opponent must show opposing eviden-tiary data which will raise the issue as to a material fact or must justify his inability to do so and seek appropriate action. Sparkman v. McWhirter, 263 S.W.2d 832 (Tex.Civ.App. Dallas 1953, writ ref.). The rule is stated in 4 McDonald Tex.Civ.Prac., Sec. 17.26 p. 1389: “Hence the sound rule is that a genuine issue of material fact is not raised by allegations in a pleading when they are controverted by affidavits or other evidence, in the absence of counter affidavits or evidence to sustain them.”

Plaintiff’s unsworn petition alleged primarily conclusions and no facts upon which raises a genuine fact issue. She did not offer any counter affidavits, depositions or other evidence disproving the facts set forth in defendant’s affidavit. On the other hand, defendant’s motion for summary judgment, supported by a competent affidavit which demonstrates the absence of any true issue, requires this court to sustain the motion for summary judgment. Allen v. Western Alliance Insurance Company, 162 Tex. 572, 349 S.W.2d 590 (Tex.Sup.1961); 29 Tex.Law Rev. 688.

We have considered appellant’s other points which are without merit.

The judgment of the trial court is affirmed.


author: WILSON, Justice.

text:
    SAFWAY SCAFFOLDS COMPANY OF HOUSTON, Appellant, v. SHARPSTOWN REALTY COMPANY et al., Appellees.
    No. 4559.
    Court of Civil Appeals of Texas. Waco.
    Dec. 15, 1966.
    Rehearing Denied Jan. 5, 1967.

      Parrish & Webb, Don S. Webb, Houston, Thomas F. Lay, Pasadena, for appellant.
    J. Harold Bates, James R. Tucker, Billy E. Lee, Houston, for appellee.
   OPINION

WILSON, Justice.

Plaintiff sued on a verified account for $322.10; and for $9,433.39, interest and penalty alleged to represent rental for construction equipment and loss of equipment rented to defendants, but not returned. The latter debt was alleged to have arisen “upon an express written rental contract or contracts fully executed by defendant or his agent.”

The judgment, reciting plaintiff’s claim was proved in part by the verified account “and in part upon a written rental contract,” awarded plaintiff $2750. Defendants’ answer contained no plea of non est factum.

The court found, after a non-jury trial that there “was an agreement between the parties” providing plaintiff would lease equipment to defendants; that the equipment was delivered to defendants and plaintiff “obtained receipts signed by authorized employees of defendant”; that plaintiff picked up two loads of equipment for which “defendants (sic) did not get a receipt”; that these two loads, representing a part of the equipment for which defendant was sought to be charged, consisted of approximately 200 pieces of scaffolding of the value of $6,000 for which defendants were not credited; that plaintiff’s price list represented reasonable market value of new equipment and did not allow for use or depreciation of the equipment; and that “defendants are charged with the loss to plaintiff of equipment valued at $3,433.38 on plaintiff’s new price list, submitted into evidence,” which equipment “is depreciated to $2,427.90 in addition to the rentals of $322.10, or a total of $2,750.”

Defendants’ answer to plaintiff’s point that thereby the judgment varied the express written contract between the parties is that there is “no evidence that an express written contract existed between the parties.” Plaintiff having pleaded an express written contract executed by defendant, a general denial did not put the allegation in issue. Defendants say there is no proof that the persons signing the delivery receipts which constitute the written agreements relied on were their agents. In the absence of a verified denial of the execution by defendants or by their authority of the written instruments upon which the pleading is founded, under Rule 93(h), Texas Rules of Civil Procedure, the instruments were received in evidence as fully proved. Newbern v. Spiro, Tex.Civ.App., 387 S.W.2d 769; Ship Ahoy v. Whalen, Tex.Civ.App., 347 S.W.2d 662; Butler v. Merchants Nat. Bank of Mobile, Tex.Civ.App., 325 S.W.2d 229; Manning v. Barnard, Tex.Civ.App., 277 S.W.2d 160, writ ref. n. r. e. See Collins v. F. M. Equipment Co., 162 Tex. 423, 347 S.W.2d 575.

The contract provided that “lost or broken equipment will be charged for at list,” and if equipment should be destroyed, damaged or lost, lessee would pay plaintiff a sum equal to its “list price for the same.” Defendants answered only that plaintiff’s claim and the exhibits attached to the petition were “not just or true” and they demanded strict proof thereof. There was no authority, in this state of the pleading, for the “depreciation” of the equipment, or for ignoring the terms of the contract in adopting a novel and unpleaded basis for judgment.

It is not necessary for us to pass on the other points.

Reversed and remanded.


author: BARROW, Justice.

text:
    J. B. JERRELL, Appellant, v. Lillie Mae JERRELL, Appellee.
    No. 14537.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 14, 1966.
    Evans & Marshall, San Antonio, for appellant.
    Frank B. Kelley, San Antonio, for ap-pellee.
   BARROW, Justice.

This is an appeal by writ of error. On February 16, 1966, judgment was entered following a non-jury trial granting ap-pellee a divorce from appellant and awarding appellee custody of the couple’s minor children. Appellant complains of a denial of his demand for trial by jury in violation of his constitutional rights. See Art. 1, § 15, Art. 5, § 10, Tex.Const., Vernon’s Ann.St.

Appellant was served with a copy of ap-pellee’s petition on October 22, 1965, and filed his answer on November 1, 1965. On January 17, 1966, appellee requested a setting of this case and it was set, without prior notice to appellant, on the non-jury docket, for February 15, 1966, at 2:00 p. m. The decree indicated that appellant’s demand for a jury was unknown to the trial court, in that the decree recites the cause came on to be heard on February 15, 1966, and that appellant, although duly, legally and regularly cited according to law to answer herein, failed to appear in person or by attorney, and that the cause proceeded without the intervention of a jury. It further recites that no jury was demanded by appellee.

It is seen that appellant’s demand for a jury was made more than ten days in advance of the date set for trial of the cause on the non-jury docket. Rule 216, Texas Rules of Civil Procedure, allows the demand for a jury, if not made on or before appearance day, to be made “a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than ten days in advance.” Although mandatory wording is used in this rule where the demand is made less than ten days in advance of the setting, the Courts, because of the importance of the right of trial by jury under our Constitution, have uniformly construed same as directory. Aronoff v. Texas Turnpike Authority, Tex.Civ.App., 299 S.W.2d 342, no writ; Lebman v. Sullivan, Tex.Civ.App., 198 S.W.2d 280, writ ref’d n. r. e.

In order to give full meaning to this construction of the rule, a demand for a jury made more than ten days in advance of the date set for trial is presumed to have been made within a reasonable time. Here there is no contention that a jury was not available on the date set, nor any showing that a trial by jury would have seriously interfered with or impeded the orderly handling of the court’s docket. The demand for jury was therefore timely made. The fact that neither appellant nor his counsel was present when the case was tried did not amount to a waiver of appellant’s demand for a jury trial. White Motor Co. v. Loden, Tex.Civ.App., 373 S.W.2d 863, no writ; Barker v. Kidd, Tex.Civ.App., 357 S.W.2d 490, no writ; Boothe v. Durrett, Tex.Civ.App., 343 S.W.2d 553, writ ref’d n. r. e.

The constitutional provision securing right of trial by jury includes a divorce suit. Art. 4632, Vernon’s Ann.Civ.St., authorizes either party in a divorce suit to demand a jury and, although the findings of the jury are advisory only in some aspects of the case, it has been held reversible error to fail to submit all disputed fact issues to a jury where one is timely demanded. Langford v. Langford, Tex.Civ.App., 337 S.W.2d 181, no writ; Aubey v. Aubey, Tex.Civ.App., 264 S.W.2d 484, no writ; Zuniga v. Zuniga, Tex.Civ.App., 244 S.W.2d 270, no writ. Furthermore, this case involves the custody of two minor children, and Art. 4639a, Vernon’s Ann. Civ.St., as amended in 1961, makes the verdict of the jury relative to custody of the minor children binding upon the court. Lebowitz v. Lebowitz, Tex.Civ.App., 403 S.W.2d 871, no writ; Welch v. Welch, Tex.Civ.App., 369 S.W.2d 434.

The trial court’s error in disregarding appellant’s timely demand for a jury requires a reversal of the judgment and remand of the case. Texas & Pacific Ry. Co. v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528 (1958); Meyer v. Henery, Tex.Civ.App., 400 S.W.2d 933, no writ; Barker v. Kidd, supra.

The judgment of the trial court is reversed and the cause is remanded to the trial court.


text:
    Jackie WARREN et al., Appellants, v. Mrs. Mary Ann WALTER et vir, Appellees.
    No. 221.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 15, 1966.
    Rehearing Denied Jan. 5, 1967.
    James N. Phenix, Pheniz, Keeling & Wilder, Henderson, for appellants.
    Jack N. Price, Longview, for appellees.
   MOORE, Justice.

This is an appeal from the judgment of the trial court granting a bill of review, setting aside and holding for naught a default judgment previously rendered. The judgment appealed from recites that the court granted a new trial on the merits, but the judgment affirmatively shows that there has never been a final determination of the case on the merits. This judgment is interlocutory and not appealable. In their petition for bill of review, plaintiffs not only alleged reasons relied upon for re-opening the judgment by default, but pleaded the case so that the court could have determined the issues presented in the original action and this should have been done. Two trials, one to vacate the judgment by default and another on the merits of the original action, are not permitted, but every issue raised on both phases of the case must be disposed of on one trial, and the judgment rendered will be an effective substitute for the judgment vacated. Palmer v. D. O. K. K. Benevolent & Insurance Association, 160 Tex. 513, 334 S.W.2d 149; Jones, d/b/a Galveston Lumber Company v. Steele, (Tex.Civ.App.) 360 S.W.2d 592; Clay Lumber Co. v. Patterson, (Tex.Civ.App.) 28 S.W.2d 825; Wise v. Lewis, (Tex.Com.App.) 23 S.W.2d 299.

Although our jurisdiction has not been challenged by a point of error, fundamental error is apparent on the face of the record. McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265.

Since the order entered by the trial court in this proceeding is not a final judgment, this court has no power to review the same. The status of the case is that it stands for trial on its merits in the court below.

For the reasons stated, it follows that the appeal in this cause must be dismissed.


text:
    TEXAS DISTILLERS, INC., et al., Appellants, v. Leon P. HOWELL, Appellee.
    No. 14535.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 30, 1966.
    Rehearing Denied Dec. 28, 1966.
    Crawford B. Reeder, San Antonio, for appellants.
    Bradford F. Miller, San Antonio, for ap-pellee.
   BARROW, Justice.

This is an appeal from the granting of a summary judgment. Appellee brought this suit against Texas Distillers, Inc., a Texas corporation, and seven individuals who constituted its Board of Directors, to recover damages for the conversion of 26,-46214 shares of capital stock of said corporation. The trial court sustained appel-lee’s second motion for summary judgment and rendered judgment jointly and severally against all appellants for the sum of $52,925.

On August 23, 1963, appellant corporation accepted a “Legal Services Contract” submitted by appellee, whereby he agreed to perform services for financing the construction and equipping of a proposed distillery which the corporation desired to erect in New Braunfels, Texas, at an estimated cost of $900,000. Appellee agreed to endeavor to obtain a commitment or commitments for a minimum of $450,000, either in the form of loans or investments, under certain specified conditions. For his services appellee was paid a retainer fee in the sum of $4,400, and was to be paid a sum equal to 12% of the first $450,000 raised by him, and 10% of the excess. This fee was to be paid either in stock or cash, at appellee’s option.

On March 13, 1964, appellee submitted to appellants a lease-purchase proposal made by William Matera to construct and equip a distillery upon certain specified terms and conditions. Appellee asserts this proposal ripened into a contract with the corporation’s acceptance on April 2, 1964. It is alleged he thereby fully performed all his obligations under his legal services contract and is entitled to the sum of $56,925, less the sum advanced to him. The directors of the corporation unanimously refused to convey to him the shares of stock equal to this sum and he thereupon brought this suit for conversion.

The crux of this appeal is whether appellants judicially admitted the liability to appellee and therefore were prevented from pleading or raising any fact issue in response to appellee’s motion for summary judgment. This contention is primarily based upon a letter from appellant Faust, president of the corporation, to appellee dated April 1, 1964. This letter was in response to a question raised by appellee in his letter of March 27, 1964, to the corporation as to whether the proposal of Mr. Matera came “within the purview of, and would be subject to” appellee’s contract with the corporation. Mr. Faust in reply quoted in part from the minutes of the corporation approving the August 28, 1963, contract with appellee, which provided “for further payment upon successfully completing any method of financing the Distillery, or any part thereof acceptable by the Corporation.” Faust concluded that the Board felt “that the Matera Contract would fall within the purview of your contract with Texas Distillers, Inc.”

In United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224, writ ref’d, this Court adopted five tests to be met before a declaration can be held a judicial admission and therefore conclusive against the party making same. It must appear: 1. That the declaration relied upon was made during the course of a judicial proceeding. 2. That the statement is contrary to an essential fact embraced in the theory of recovery or defense asserted by the person giving the testimony. 3. That the statement is deliberate, clear, and unequivocal. 4. That the giving of conclusive effect to the declaration will be consistent with the public policy upon which the rule is based. 5. That the statement is not also destructive of the opposing party’s theory of recovery. The Supreme Court in Griffin v. Superior Ins. Co., 161 Tex. 195, 338 S.W.2d 415 (1960), held that these tests must be met before a declaration is deemed conclusive.

The Faust letter to appellee does not meet at least two of these tests. The declaration contained in this letter obviously was not made during the course of a judicial proceeding. Further, the statement that the Matera proposal was within the purview of appellee’s contract with appellants was not a deliberate, clear and unequivocal admission that the Matera proposal, if accepted by appellants, would fulfill appellee’s obligations under his contract. The Matera proposal required that approval be secured by appellant corporation from the Texas Securities Commission for the public sale of $600,000 of the corporation’s capital stock and that a minimum of $100,-000 realized from the proceeds of such sale be kept in a trust account under the joint control of appellants and Matera before Matera would be required to start construction of the distillery. These requirements were not met and the reasons for the failure of the Matera proposal to be completed were not established.

The Faust letter amounted to no more than a quasi-admission which was not conclusive against appellants. U. S. Fidelity & Guaranty Co. v. Carr, supra; Harris County v. Hall, 141 Tex. 388, 172 S.W.2d 691 (1943); McCormick & Ray, Texas Law of Evidence, § 1128; 39 Texas Law Review 516. Under these authorities a quasi-admission is merely a piece of evidence and the declarant may offer evidence in contradiction or explanation of it.

Appellants pleaded that the Matera proposal was not procured through the efforts of appellee. Affidavits of Matera and Mr. Deerwester, vice-president of appellant corporation, were filed which state in part that the Matera proposal was negotiated in substantially the same form by appellants before the contract was signed between the Corporation and appellee. The appellants did admit, under Rule 169, T.R.C.P., that no contract was signed by appellant corporation with Matera other than the one of March 13, 1964, and further that the minutes of the Corporation do not reflect that any other proposal for the construction of a distillery was ever accepted by the directors of the Corporation. Appellants qualified these admissions to reflect that the essential parts of the Matera proposal had been negotiated prior to the time the Corporation entered into a contract with appellee. There is no admission that ap-pellee had fulfilled his legal services contract.

The trial court erroneously considered that appellants had judicially admitted liability to appellee and improperly ordered appellants’ pleading and affidavits in contradiction to appellee’s motion for summary judgment stricken from the record. When these pleadings and affidavits are considered in this record, a genuine issue of material fact is raised as to whether appellee had fulfilled his obligations under his legal services contract with appellant corporation.

The summary judgment granted appel-lee is accordingly reversed and this cause is hereby remanded to the trial court.

CADENA, J., disqualified and not sitting.

      . Matera was to expend a maximum of $408,250 on the distillery and to purchase $75,000 of the corporation stock under certain conditions. Appellee urges he is thereby entitled to a commission on $483,-250.


author: DUNAGAN, Chief Justice.

text:
    R. C. CALHOUN, Appellant, v. Billy Bob PADGETT, Appellee.
    No. 247.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 15, 1966.

      L. S. Carsey and Michael T. Gallagher, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellant.
    On appeal no counsel for appellee.
   DUNAGAN, Chief Justice.

This is an appeal from an order of the trial court overruling appellant’s plea of privilege.

Appellant, defendant below, was sued by appellee, Billy Bob Padgett, for damages allegedly resulting from a collision occurring on Highway 19 in the City of Trinity, Texas, located in Trinity County.

Appellant, R. C. Calhoun, subsequently and in due order filed a plea of privilege to be sued in the county of his residence which was, at the time of the collision and at the time of the hearing on the plea of privilege, Harris County, Texas. Appellee timely filed his controverting affidavit.

The plea of privilege was heard in the 12th Judicial District Court of Trinity County, Texas, and on February 10, 1966, appellant’s plea of privilege was overruled.

Appellant subsequently perfected his appeal by giving notice of intention to appeal in open court and timely filing his appeal bond.

Appellee has not filed a brief and did not avail himself of oral argument. He has not challenged in any manner the statements in appellant’s brief relative to the facts in the record. The Court of Civil Appeals must assume as true all facts stated by appellant in his brief and render judgment in conformity therewith. Rule 419, Texas Rules of Civil Procedure; American Casualty & Life Insurance Company v. Boyd, 394 S.W.2d 685, (Tex.Civ.App., Tyler) 1965, n. w. h.; Gonzales v. Gonzales, 224 S.W.2d 520, (Tex.Civ.App., San Antonio) 1949, writ ref.; Ammann v. Daniel Oil Co., 220 S.W.2d 181, (Tex.Civ.App., Austin) 1949, n. w. h.; Hartford Fire Ins. Co. v. Owens, 272 S.W. 611, (Tex.Civ.App., Fort Worth) 1925, writ ref.; Coates v. Coates, 355 S.W.2d 260, (Tex.Civ.App., Eastland) 1962, n. w. h. We have, however, read the entire statement of facts and checked the references in appellant’s brief and found them to be correct.

It appears from appellant’s brief that the appellee was driving north from Huntsville, Texas, on Highway 19 within the City Limits of Trinity, Texas, at about 12:30 A.M. on July 10, 1965. As the appellee was entering Trinity, he noticed a vehicle approaching him from the north traveling in a southerly direction. He was about 100 feet from the lead vehicle, which was driven by the appellant Calhoun, when a second vehicle started to pull around the appellant’s truck and the headlights on the second vehicle made it difficult for the appellee to see. When he encountered the two vehicles, they were side by side and he collided with the vehicle to his left, which was traveling in the proper lane for southbound traffic. At the point of impact,, the highway on which the collision occurred was two-lane.

The sole question presented on this appeal is whether the trial court erred in overruling appellant’s plea of privilege to be sued in the county of his residence, which is Harris County, Texas. Inasmuch as the appellee is attempting to retain venue in Trinity County, Texas, under Article 1995, Subdivision 9a, Vernon’s Ann.Civ.St., it becomes necessary to ascertain whether or not the appellee has borne the burden of proof imposed upon him under that Subdivision.

Subdivision 9a of Texas Article 1995 provides:

“Negligence. — A suit based upon negligence per se, negligence at common law or any form of negligence, active or passive, may be brought in the county where the act or omission of negligence occurred or in the county where the defendant has his domicile. The venue facts necessary for plaintiff to establish by the preponderance of the evidence to sustain venue in a county other than the county of defendant’s residence are:
“1. That an act or omission of negligence occurred in the county where suit was filed.
“2. That such act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment.
“3. That such negligence was a proximate cause of plaintiff’s injuries.”

In order to retain venue in Trinity County, Texas, the appellee was required to prove an act of negligence on the part of appellant Calhoun in such county and under the express wording of the statute, it was necessary to prove such negligence by a preponderance of the evidence. Many cases have held that under Subdivision 9a, the plaintiff has the burden of pleading and proving by a preponderance of the evidence: (1) a negligent act in the county sued; (2) .that such negligent act was that of the defendant; and (3) that such negligent act was the proximate cause of the plaintiff’s injuries. Reynolds & Huff v. White, 378 S.W.2d 923, (Tex.Civ.App., Tyler) 1964, n. w. h.; Sharp v. Salazar, 398 S.W.2d 444, (Tex.Civ.App., Beaumont) 1965, n. w. h.; Watkins v. Goolsby, 337 S.W.2d 363, (Tex.Civ.App., Eastland) 1960, n. w. h.; McFarling v. Maltby, 350 S.W.2d 373, (Tex.Civ.App., Eastland) 1961, n. w. h.; Manning v. Helms, 387 S.W.2d 476, (Tex.Civ.App., Dallas) 1965, n. w. h.; D. E. McAlister Trucking Company v. Shaw, 352 S.W.2d 530, (Tex.Civ.App., Fort Worth) 1961, n. w. h.

The Supreme Court in Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 1935, laid down the rule that the plaintiff must plead and prove the venue facts required by the applicable Subdivision of Article 1995, V.A.C.S., and further he must plead and prove such facts just as any other litigant who, in a hearing or trial, has the burden of proving a fact.

Appellee Padgett has wholly failed to prove by a preponderance of the evidence that appellant Calhoun committed any act of negligence in Trinity County, which was a proximate cause of the accident of which he complains. In addition to the facts set out in appellant’s brief, a thorough search of the statement of facts reveals only that a collision occurred in the appellant’s lane of travel on Highway 19. There is no evidence to establish that appellant was driving at an excessive speed. In fact, there was no evidence whatsoever as to the speed of either vehicle. There is no evidence to show that appellant made an improper application of the brakes, nor is there any evidence showing that appellant Calhoun could have avoided the accident.

The appellee alleged that the appellant was guilty of improper lookout, improper control, failure to make a timely application of the brakes and failure to use the means at hand to avoid colliding with the appellee after actually seeing the appel-lee’s position of peril and actually realizing the appellee’s inability to extricate himself therefrom. There is no evidence, either direct or circumstantial, which shows that the appellant was negligent in any of these particulars. The most that can be said of the evidence is that it proved that an accident took place in the City of Trinity and Trinity County. However, proof of an accident of collision, standing alone, is not evidence of negligence. Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195, 1937.

When confronted with situations involving the sufficiency of evidence in a plea of privilege hearing where the only evidence was that an accident or collision occurred, the Texas courts have uniformly held such proof to be insufficient as the basis for establishing venue in a county other than that of the defendant’s residence. Conner v. Chatman, 272 S.W.2d 136, (Tex.Civ.App., Galveston) 1954, n. w. h.; Austin Bridge Company v. Polanca, 300 S.W.2d 173, (Tex.Civ.App., Eastland) 1957, n. w. h.; Bart DeLatt & Associates, Inc. v. Knight, 369 S.W.2d 65, (Tex.Civ.App., Waco) 1963, n. w. h.; Sharp v. Salazar, supra.

The burden imposed on the appellee in the instant case is one that the courts have predicated upon the belief that the defendant’s right to be sued in the county of his residence is invaluable and should be vitiated only when the evidence clearly supports the maintenance of venue in some other county. This court in Admiral Motor Hotel of Texas, Inc. v. Community Inns of America, Inc., 389 S.W.2d 694, (1965), n. w. h., said:

“ * * * The right to be sued in one’s own bailiwick is a valuable right, jealously guarded by the courts. (Cases cited.) Unless the plaintiff clearly discharges his burden of proof, the defendant is entitled to a transfer of the action.”

The judgment of the trial court is reversed and it is ordered that the cause be transferred to a District Court of Harris County, Texas.