author: GREENHILL, Justice. HAMILTON, Justice.

text:
    SUNAC PETROLEUM CORPORATION et al., Petitioners, v. Frank PARKES, Respondent.
    No. A-II39I.
    Supreme Court of Texas.
    May 31, 1967.
    Rehearing Denied July 19, 1967.

      Golden, Croley, Howell, Johnson & Mizell, ’ Fred Lohmeyer and Robert S. Mizell, Dallas, for petitioners.
    Gibson, Ochsner, Harlan, Kinney & Morris, John Morrison, Jr., Amarillo, for respondent.
   GREENHILL, Justice.

This case. principally involves the com struction of the provisions of an oil and gas lease dealing with operations, or lack of them, at and after expiration of the primary term, and also the question of whether a new lease was a “renewal or extension” of a former lease so as to perpetuate an overriding royalty interest. The suit was instituted by Frank Parkes to establish that he owned an overriding royalty interest and for a money judgment for royalties alleged to be due. The parties submitted the case to 'the trial court, sitting without a jury, upon an agreed statement of the facts. Judgment was for the plaintiff Parkes. The Court óf Civil Appeals sitting at Amarillo reformed the judgment in matters not material here and affirmed. 399 S.W.2d 840 (1966).

The first question is whether the oil and gas lease in question terminated under its own terms. That question turns upon the 60-day and 30-day clauses in the lease dealing with operations in progress at the end of the primary term, the cessation of production, the completion of a dry hole after the end of the primary term, and related questions. This Court has had some of these problems heretofore in at least three cases: Rogers v. Osborn, 152 Tex. 540, 261 S.W.2d 311 (1953); Stanolind Oil & Gas Co. v. Newman Brothers Drill. Co., 157 Tex. 489, 305 S.W.2d 169 (1957); and Skelly Oil Co. v. Harris, 163 Tex. 92, 352 S.W.2d 950 (1962). Our decision on the first question is based upon those opinions, and they will be referred to several times herein.

As considered material here, the stipulated facts are these: on April 17, 1948, one O’Hern, as lessor, executed an oil and gas lease to the plaintiff Parkes. It provided for a royalty of ⅛⅛ and a primary term of 10 years. The lease, which was on 160 acres in Ochiltree County, Texas, provided that it could be pooled for gas only.

On May 15, 1957, some nine year later, Parkes sold and assigned his lessee’s interest to L. H. Puckett for $5,600. Parkes also reserved an overriding royalty of ½6⅛ of %ths of the production from the lease, or from any extension or renewal thereof. The assignment provided that the assignee would be under no obligation to keep the lease.in force by payment of rentals, by drilling, or by development operations, and that assignee should have “the right to surrender any or all part of such leased acreage without the consent of assign- or.” Thereafter Pucket assigned the oil and gas lease; and it subsequently was assigned to the petitioners, Sunac Petroleum Co. et al., who were the defendants in the trial court.

The end of the primary term, April 17, 1958, was approaching. On April 14, 1958, the lessees pooled the land in question with other lands for gas purposes only. On the following day, drilling operations began on land within the 640-acre gas unit but not upon the'160 acres in question. When the primary term ended on April 17, 1958, there was no production from, or operations upon. the particular 160-acre lease, but a well was being drilled upon the gas unit.

On June 11, 1958, the well on the 640-acre gas unit was completed as an oil well as distinguished from a gas well.. Oil was produced in paying quantities from that well, at least until the commencement of a second well.

On June 24, 1958, approximately 68 days after the expiration of the primary term and 13 days after the completion of the oil well on the gas unit, the defendants Sunac et al. began the drilling of a second well on the particular 160 acres in question. The well was completed as a producing oil well on July 29, 1958; and the well continued to produce thereafter.

Approximately a year after the completion of the above-mentioned well on the 160 acres, the successors in interest of the lessor “asserted that a question existed as to whether or not the said lease had been maintained in force and effect during the period from the expiration of the primary term until drilling operations were commenced” on the 160 acres. Thereafter, on August 17, 1959, the lessees (now Sunac et al.) for a cash consideration of $27,000, “procured a new oil, gas and mineral lease” from the successors of the original lessor. As will be discussed more in detail later, the new lease had different provisions from the original lease. The well on the 160 acres was still producing when the new lease was executed. The lessees Sunac et al. stopped paying the ½6⅛ of %ths overriding royalty to the plaintiff, Parkes, about December 1, 1959; and this suit followed.

Parkes, of course was entitled to a ¾6⅛ of %ths overriding royalty under the original lease and as long as it remained alive. If it was continued in force beyond the primary term by drilling or other operations, he is entitled to prevail under the original lease. We shall first decide, therefore, whether the original lease terminated under its own provisions.

The original lease contained these provisions :

“2. Subject to the other provisions herein contained, this lease shall be for a term of ten years from this date (called “Primary term”) and as long thereafter as oil, gas or other mineral is produced from said land hereunder.
“5. If prior to discovery of oil or gas on said land Lessee should drill a dry hole or holes thereon, or if after discovery of oil or gas the production thereof should cease from any cause, this lease shall not terminate if Lessee commences additional drilling or reworking operations within sixty (60) days thereafter . . . . If at the expiration of the primary term oil, gas or other mineral is not being produced on said land but Lessee is then engaged in drilling or re-working operations thereon, the lease shall remain in force so long as operations are prosecuted with no cessation of more than thirty (30) consecutive days, and if they result in the production of oil, gas or other minerals so long thereafter as oil, gas, or other mineral is produced from said land.”

Paragraph 9 gave the lessee the right to pool “the gas leasehold estate” and “the lessor’s gas royalty estate” with other leases to create gas units of not more than 640 acres. It is then stated:

“The commencement of a well, or the completion of a well to production, on any portion of an operating unit shall have the same effect under the terms of this lease as if a well were commenced, or completed, on the land embraced by this lease.”

Paragraph 5 above set out contains two sentences which provide for the continuation of the lease beyond the primary term. The first sentence speaks of additional drilling or reworking operations. The second sentence speaks of drilling or reworking operations.

This Court in Rogers v. Osborn, 152 Tex. 540, 261 S.W.2d 311 (1953), held that for the first sentence in paragraph 5 of the lease, the 60-day provision, to be brought into operation, one of two events must occur: (1) there must be a dry hole before a discovery of oil and gas, or (2) there must be a cessation of production after the discovery of oil or gas. In that case, before the end of the primary term, there had been a completed well which produced some gas and a trace of oil; and the well was intermittently opened or bled to remove nonmarketable oil and waste from it. The Court concluded that the well was not a “dry hole.” Moreover, since there had been no marketable production, there could not have been a “cessation of production.” The holding was that the 60-day first sentence of paragraph 5 was not operative and did not prolong the life of the lease. A second well, begun and completed as a producer after the primary term, did not continue or revive the lease. Rogers v. Osborn also had a holding with regard to the 30-day second sentence of paragraph 5. It will be discussed later herein.

The above requirements for the operation of the 60-day first sentence were repeated in Stanolind Oil & Gas Co. v. Newman Brothers Drilling Co., 157 Tex. 489, 305 S.W.2d 169 (1957). In Newman Brothers, there was a dry hole; and because of the dry hole, the holding was that the lease was prolonged under the 60-day provision.

Under the test of Rogers v. Osborn, which was reiterated in Newman Brothers, the 60-day first sentence of paragraph 5 did not come into play to prolong the lease in this case. We agree with the Court of Civil Appeals that the completion of an oil well is not to be considered as the drilling of a dry hole. 399 S.W.2d at 843. The completion of a producing oil well on a unit authorized for gas only, but not located on a particular lessor’s premises, would not, and did not, prolong the life of the oil and gas lease on the 160 acres.

The 30-day second sentence in paragraph 5 deals with drilling and reworking operations. As was pointed out in Rogers v. Osborn, the sentence does not speak of additional drilling (the drilling of additional wells), but it speaks of drilling and reworking operations being conducted at the time of the expiration of the primary term. An additional holding of this Court in Rogers v. Osborn was that the drilling or reworking must be upon the particular well being drilled or reworked at the expiration of the primary term in order for the 30-day second sentence to become operative. The opinion states that the 30-day second sentence of paragraph 5 applies to “continuous prosecution of the very operations” being conducted when the primary term ended.

In Newman Brothers, there was a well being drilled at the end of the primary term, and the Court held that the 30-day second sentence prolonged the life of the lease [at least] until the completion of the well as a dry hole. Since the well was completed as a dry hole at a time when the lease was in force and effect, the Court further held that the drilling of the dry hole, prior to the discovery of oil or gas, brought into effect the 60-day first sentence of paragraph 5. A second well was completed within 45 days from the plugging of the dry hole. So the lease was held not to have terminated under the specific drilling operations of the 30-day provision which resulted in a dry hole, and the dry hole in turn brought into play the 60-day sentence of paragraph 5.

In the case at bar, the particular operation under way at the expiration of the primary term did not end in a producer of gas so as to perpetuate the lease under the 30-day second sentence of paragraph 5. There were no additional drilling or reworking operations on the particular well, the oil well on the 640-acre gas unit. Under Rogers v. Osborn and Newman Brothers, the drilling of another well after the primary term would not prolong the lease unless the particular operation being conducted at the expiration of the primary term resulted in a dry hole (or, under other circumstances, upon cessation of production). So the lease was not prolonged after the end of the work or final operations on the first well under the 30-day clause, and the well did not end in a dry hole or cessation of production so as to activate the 60-day clause.

The parties also cite Skelly Oil Co. v. Harris, 163 Tex. 92, 352 S.W.2d 950 (1962). In Skelly, both provisions similar to those in paragraph 5 of the lease here involved had 60-day time limitations; i. e., the second sentence dealing with drilling and reworking also gave the lessee a 60-day period rather than 30 days. In Skelly, a well was being drilled at the end of the primary term on the unit with which the land in question had been pooled. The well was completed as a producing gas well, but it was capped because there was no pipeline immediately available. Within 60 days the lessee procured a pipeline connection, and production promptly commenced. The holding was that the lease did not terminate. The 60-day clause (similar to the 30-day clause in the lease in question) gave the lessee 60 days after cessation of operations within which to begin production from that well. If it had been completed as a dry hole, the opinion in Skelly said the lessee would have had 60 days under the provisions of paragraph 6 [paragraph 5 of the lease before us] in which to commence additional drilling or reworking operations.

Our holding here is that the first oil and gas lease terminated. The drilling and completion of the particular operation (the oil well) off the lessee’s premises after the primary term did not end in the production of gas so .as to prolong the lease under the 30-day provision; and there was no cessation of production or dry hole to activate the 60-day sentence.

RENEWAL OR EXTENSION OF LEASE

We now turn to the question of whether the second lease from the successors of the lessor O’Hern was a renewal or extension of the original lease. The Court of Civil Appeals held that 'i't'was, Télyiñg* upon its determination that the original 1948 lease was still in force when the second lease was obtained in 1959. In the light of our conclusion that the original lease had expired under its own terms, and for the reasons discussed below, we cannot agree with that conclusion.

Most of the cases holding that a subsequent lease was an extension or renewal of an earlier lease have intermixed the related questions of estoppel and constructive trust. We shall treat these questions separately.

It seems clear that the new lease was not an extension of the old lease. An extension, as used in this context, generally means the prolongation or continuation of the term of the existing lease. Mutual Paper Co. v. Hoague-Sprague Corp., 297 Mass. 294, 8 N.E.2d 802 (1937). It might also encompass the enlarging of the territory or strata to be covered by the lease. The parties here did none of these things. As enlarged upon below, the lease had long since expired, and there was a new lease on the same land upon substantially different terms.

Moreover, we do not regard the new lease (and the parties refer to the second lease as a new lease in their stipulated facts) as a renewal of the old lease. The lessors and lessees entered into the new lease over a year after the old lease had expired. Ordinarily when an oil and gas lease has expired, the lessor is free to deal with the property as he sees fit. He may develop and operate it himself, or he may lease it to whomsoever he pleases and on such terms as may be agreed upon.

At the time the old lease was executed, the land had not been proved to be productive. While the lessee had the right to drill, he could defer drilling during the 10-year primary term by the payment of delay rentals. When the new lease was executed, there was a producing oil well on the east half of the 160 acres. The new lease provided that, except as to the royalty and other right reserved to lessors, the lessors conveyed all their interest in the oil well to the lessees. It is stipulated that the lessees paid lessors $27,000 for the new lease.

The new lease had other terms substantially different from the old. The original lease had a 10-year primary term and provided for delay rentals. The new lease, on the other hand, had no primary term and no provision for delay rentals. The new lease provided that it would terminate as to the west half of the 160 acres unless the lessees began the drilling of a well within one year and continued operations, with no cessation of more than 60 days, until the production of oil or gas was obtained. If no such well were drilled or no production obtained as set out in the new lease, the lessees agreed to execute a release of the west half of the 160 acres. The 30- and 60-day provisions of the new lease were different from those in paragraph five of the old lease.

Since the new lease was executed under different circumstances, for a new consideration, upon different terms, and over a year after the expiration of the old lease, we hold that the new lease was not a renewal of the old lease. See Meeker v. Ambassador Oil Co., 308 F.2d 875 (10th Cir. 1962), rev’d on other grounds, 375 U.S. 160, 84 S.Ct. 273, 11 L.Ed.2d 261 (1963); K. & E. Drilling, Inc. v. Warren, 185 Kan. 29, 340 P.2d 919 (1959).

CONFIDENTIAL RELATIONS AND CONSTRUCTIVE TRUST

There are cases from other jurisdictions which hold that a second lease is, or will be treated as, an extension or renewal of an original lease because the lessee is regarded as a trustee and is adjudged to hold the overriding royalty in the subsequent lease subject to a constructive trust in favor of the owner of the overriding royalty. As a basis for their holdings, these cases have relied on either (1) specific language in the assignment or (2) the close relationship between the parties shown by the particular facts involved.

In Probst v. Hughes, 143 Okl. 11, 286 P. 875, 69 A.L.R. 929 (1930), the lessee, before the expiration of the original lease, took a new lease which cut off the holder of the overriding royalty. The court wrote at length on relationships of trust and confidence and concluded that the new lease was a renewal or extension of the original lease. Similarly, in Howell v. Cooperative Refinery Association, 176 Kan. 572, 271 P.2d 271 (1954), a constructive trust was imposed in favor of a joint adventurer who had held an overriding royalty under the original lease. In a case tried upon a demurrer, the facts were assumed to be that the plaintiff furnished geological information to defendant for which he received his overriding royalty in the original leases. Thereafter the plaintiff furnished additional information leading to the procurement of the new lease. It was agreed between plaintiff and defendant that the new lease would be taken by a third party, and plaintiff expected that defendant would convey to plaintiff his overriding royalty interest. The new lease, as agreed, was taken by the third party after the expiration of the old lease, and it was assigned to defendant; but the defendant refused to honor plaintiff’s overriding royalty. The holding was that plaintiff alleged a joint interest and ownership of the mineral estate; that plaintiff and defendant were in a position of trust and confidence; and hence the new lease would be treated as a renewal or extension of the old lease. To the same effect are Oldland v. Gray, 179-F.2d 408 (10th Cir. 1950); and Rees v. Briscoe, 315 P.2d 758 (Okl.1951).

Another situation in which some courts have protected the holder of the overriding royalty is called a “washout” transaction, generally involving some bad faith on the part of the lessee. In this type of situation, the operator takes a new lease before the expiration of the old lease and then simply permits the old lease to expire. Oldland v. 1 Gray, 179 F.2d 408 (10th Cir. 1950) ; 2 Williams and Meyers, Oil and Gas Law § 420.2 (1964).

Parkes assigned the lease to Puckett, and Sunac received its interest only after numerous intermediate assignments. There is no evidence that Sunac occupied a position of confidence or trust with Parkes other than the clause relating to extensions or renewals. Sunac made a substantial effort to develop the land in question by pooling it for gas as authorized and by drilling a well. It failed, however, to keep the original lease in force because the well produced oil instead of gas. Sunac took a new lease to protect its interest only after the owners of the property raised a question as to the validity of the original 1948 lease.

The language most often pointed to by the courts as creating a fiduciary relation in this type of situation provides that the overriding royalty will apply to any extensions or renewals of the lease assigned. The assignment from Parkes to Sunac uses such phraseology. In addition, however, the , assignment contains this significant provision:

“There shall be no obligation, express or implied, on the part of Assignee, its successors or assigns, to keep said lease in force by payment of rentals or drilling or development operations, and Assignee shall have the right to surrender all or any part of such leased acreage without the consent of Assignor.”

Sunac was under no duty to develop the land or continue the lease in force; to the contrary, the assignment expressly gave it the right to surrender the lease at any time without Parkes’ consent. Fain & McGaha v. Biesel, 331 S.W.2d 346 (Tex.Civ.App. 1960, writ ref’d n. r. e.); Montgomery v. Phillips Petroleum Co., 49 S.W.2d 967 (Tex.Civ.App.1932, writ ref’d); Thomas v. Warner-Quinlan, 65 S.W.2d 321 (Tex.Civ.App. 1933, writ ref’d). We construe the “renewal or extension” provisions together with the provision set out as relieving the lessee from the duty to perpetuate the lease, and thus the overriding royalty. This latter provision materially distinguishes the cases relied upon by Parkes.

Normally, when an oil and gas lease terminates, the overriding royalty created in an assignment of the lease is likewise extinguished. It is also generally held that the assignment of an oil and gas lease reserving an overriding royalty in the assign- or does not usually create any confidential or fiduciary relationship between the assignor and his assignee. Wagner v. Sheets & Walton Drilling Co., infra; Thomas v. Warner-Quinlan Co., 65 S.W. 2d 321 (Tex.Civ.App.1933, writ ref’d); Brannan v. Sohio Petroleum Co., 260 F.2d 621 (10th Cir. 1958); Keese v. Continental Pipeline Co., 235 F.2d 386 (5th Cir. 1956); 2 Williams and Meyers, Oil and Gas Law § 518.2 (1964); 3 Summers, Oil and Gas § 554 (2d ed.1958); Warren, Transfer of the Oil and Gas Lessee’s Interest, 34 Texas L.Rev. 386, 415— 16 (1956).

This Court has previously held that a constructive trust arises where there is a fiduciary or confidential relationship between two or more parties and the party holding certain property would profit by a wrong or be unjustly enriched if he were allowed to keep the property. Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401 (1960). Under the facts of this case, we see no basis for a holding that there existed a confidential or fiduciary relationship. There is no constructive trust.

Thomas v. Warner-Quinlan, 65 S.W.2d 321 (Tex.Civ.App.1933, writ ref’d), is cited and discussed by both sides. There Thomas had an oil and gas lease on twelve tracts of land. He assigned the leases to Warner-Quinlan Co., reserving an oil payment of $210,000 to be paid out of ⅛ the receipts from the oil and gas recovered. The assignment provided that Warner-Quinlan was to drill three wells within the term time of the leases or any extensions or renewals, or reassign the leases to Thomas; but that once three wells had been commenced, the leases would “vest unconditionally” in Warner-Quinlan. Warner-Quinlan commenced three wells within the time. Several of the leases, however, expired because of failure to drill on them specifically; and Warner-Quinlan took a new lease on one of these tracts thirty-one days after the old lease on it had expired. Thomas sued, seeking to impress a trust on the new lease taken by Warner-Quinlan in the amount of his reserved oil payment. The court in refusing Thomas any relief held (1) Warner-Quinlan was under no duty to drill any additional wells after it completed the three required under the assignment; (2) the parties did not occupy a fiduciary relation, and Warner-Quinlan owed no duty to procure a renewal or extension of the lease even though, according to the court, such a renewal or extension would have inured to Thomas’s benefit under the terms of the contract of assignment.

In Thomas the assignee owed no duty to further develop the leases after he completed three wells; in the case at hand Sunac owed no duty to Parkes to develop the lease under the provisions of the assignment. The provisions of the assignment relieved Sunac of any duty to drill and allowed it to surrender the lease at its option.

Moreover, the fact that Sunac might have recognized that Parkes’ overriding royalty interest was outstanding as late as November, 1959, did not create a confidential relationship between Sunac and Parkes. The provisions of the two leases and the assignment are controlling here. Wagner v. Sheets & Walton Drilling Co., 359 S.W.2d 543 (Tex.Civ.App.1962, writ ref’d n. r. e.). They show, as we have discussed, that the 1948 lease expired and with it Parkes’ overriding royalty. There is no provision for Parkes’ interest in the new lease, and we decline to impose a constructive trust on it for his benefit. Wagner v. Sheets & Walton Drilling Co., supra.

ESTOPPEL

The Court of Civil Appeals concluded that by their conduct the parties treated the 1948 lease as remaining in effect until it was superseded by the new lease in 1959. On this basis the court held that Sunac was estopped to deny Parkes’ claim.

It is true that Sunac continued to pay Parkes his overriding royalty through November of 1959. We do not believe, however, that this constituted a material misrepresentation on Sunac’s part, or that Parkes, in reliance on these payments, acted to his prejudice or changed his position. Sunac, therefore, is not estopped to deny that Parkes’ overriding royalty is applicable to the new lease. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952); Jones v. Mid-State Homes, Inc., 163 Tex. 229, 356 S.W.2d 923 (1962).

The judgments of the courts below are reversed, and judgment is here rendered for petitioners.

Smith, Hamilton and Pope, JJ., dissenting.

DISSENTING OPINION

HAMILTON, Justice.

I respectfully dissent.

I think the question as to whether or not the August 17, 1959, lease was a renewal of the 1948 lease should be determined as of the time and under the circumstances existing at the time the lessors and the petitioners, Sunac Petroleum Corporation et al., entered into the new lease.

It is uncontradicted that all parties, the lessors and petitioners, as well as the respondent, treated said 1948 lease as being in force and effect at all times up until it was effectively canceled by virtue of the new lease executed by the lessors and petitioners. Although lessors had raised a question as to the validity of the lease, the lessors and petitioners chose not to have that question determined, but instead entered into a new lease to take the place of the questionable lease. At that time the question of law as to whether the old lease had expired under its own terms was one that had not been decided by this Court or any other court in this jurisdiction or any other jurisdiction. Furthermore, even if it be determined that the old lease expired under its own terms, there may have been a question of fact as to whether the lessors would be estopped to claim that the old lease had expired by having permitted the expenditure by petitioners of vast sums of money in drilling a well on the land in question and in operating said lease for more than a year without any complaint from lessors.

Instead of having these questions determined by a court of law, the lessors and petitioners settled their differences by entering into this new lease. Petitioners, without ever giving up possession of the premises, continued its operation just as it had been doing. When you add to this fact situation the fact that petitioners admitted that the new lease was a renewal of the old lease, by paying to respondent the override provided for in his assignment, for several months under the new lease, there is ample evidence to sustain the trial court’s finding that the new lease was in fact a renewal of the old lease. For this reason I would affirm the judgments of the trial court and the Court of Civil Appeals.

However, if the proper disposition of this case requires that the question of the effect of the completion of an oil well on a consolidated gas unit after the expiration of the primary term of the lease involved be resolved, and consequently the question of whether or not the 1948 lease in fact remained in force until the effective date of the new lease be resolved, then it is respectfully submitted that, under the facts of this case, the said 1948 lease did in fact remain in force.

The 1948 lease authorized the lessee to combine the 160 acres with other lands as to the gas leasehold estate. Two days before the primary term of the original lease expired, Sunac placed the 160-acre lease in a unit with other lands and commenced drilling operations. These operations were on the land within the unit but were off the land included within the original 160-acre lease. As a consequence of the lease and the gas unit, Sunac needed to complete a well that produced gas in order to hold the lease by production. If it did so, it complied with the terms of the original lease. Instead of a gas producer, however, the well was completed as a producing oil well on June 11, 1958.

Completion of the producing oil well did not continue the lease in force, but Sunac on June 24 commenced the drilling of another well that was located on the original 160-acre tract. It did this by authorization of this provision of the original oil and gas lease:

“If, prior to discovery of oil or gas on said land, lessee should drill a dry hole or holes thereon, or if after discovery of oil or gas the production thereof should cease from any cause, this lease shall not terminate if lessee commences additional drilling or reworking operations within sixty days thereafter or (if it be within the primary term) commences or resumes the payment or tender of rentals on or before the rental paying date next ensuing after the expiration of three months from date of completion of dry hole or cessation of production. * * * ”

The second drilling operation resulted in a producing oil well on July 29, 1958.

The quoted provision was construed in Stanolind Oil and Gas Company v. Newman Brothers Drilling Company, 157 Tex. 489, 305 S.W.2d 169 (1957). We held in that case that a lessee, who prior to discovery of oil or gas, and within the primary term, commences drilling which results in a dry hole, may, within sixty days commence additional drilling. In the Newman case the additional drilling operations resulted in production, and we held that the lease did not expire. The Court of Civil Appeals in this case held that the production of oil on the lands which required the production of gas only was the completion of a producing well rather than a “dry hole” and there was no authorization for drilling the second well to keep the lease alive. With this I disagree.

The majority has held that the production of oil was not production which would hold the gas-only unit and hence it would not hold the original lease. The majority, however, holds that the completion of the oil well prevented the well from being a “dry hole”. Hence we have the majority holding that under the terms of the lease, the same well may be classified as a producer for some purposes but as a nonproducer for others. It is a non producer, says the majority, and will not hold the lease. But it is not a dry hole because it is a producer. It is inconsistent to say that the production of oil does not keep the lease alive but to say that the production of oil keeps the completed well from being a dry hole. Consistency as well as the meaning of the lease compels the construction that the production of oil on a gas-only unit was not production and because it was not production it was a dry hole.

The pooling provision of the original lease equates non production with a dry hole. The provision concludes with this sentence:

“The commencement of a well, or the completion of a well to production, on any portion of an operating unit shall have the same effect under the terms of this lease as if a well were commenced, or completed on the land embraced by this lease.” (Emphasis added.)

If, as the majority holds, the completion of the oil well was not production under the lease and particularly the pooling provision it had to be a dry hole. Because it was a dry hole, the Newman case applies, and additional drilling was timely commenced which resulted in production of an oil well. The lease did not lapse.

Even though the Court has held that the 1948 lease had expired of its own terms prior to the execution of the new lease, nevertheless the new lease was a renewal of the 1948 lease in view of the position of trust and confidence and fiduciary relationship established between the parties by virtue of the language in the assignment. All that is necessary in order to clearly establish that a fiduciary relationship existed between petitioners and respondent is to note, in the light of the many authorities on such point, that respondent’s overriding royalty interest expressly was reserved under the lease of April 17, 1948, or any extensions or renewals thereof, and the relative positions of petitioners, as the working interest owners, and respondent, as an overriding royalty interest owner.

There are many authorities directly holding that the creation of an overriding royalty interest or production payment by exception and reservation in an assignment of a designated lease, or any extensions or renewals of such lease, creates, in and of itself, a fiduciary relationship between the assignor (overriding royalty interest owner or production payment interest owner) and the assignee (working interest owner) and their respective successors in interest, irrespective of whether any confidential or personal relationship in fact exists between such parties. Howell v. Cooperative Refinery Association, 176 Kan. 572, 271 P.2d 271, (1954); Thornburgh v. Cole, 201 Okl. 609, 207 P.2d 1096, (1949); Probst v. Hughes, 143 Okl. 11, 286 P. 875, (1930); 24 Am.Jur. 590, Gas and Oil, Sec. 82; Summers Oil & Gas, Permanent Edition, Sec. 554, pp. 635-639. Such principle is set forth in the Probst case, in Am.Jur., and in Summers Oil & Gas, respectively, in the following language:

Probst case, 286 P. 875, at page 878:
“It is thus to be seen that a trusteeship may arise by virtue of any relationship of the parties in which it may be said that the one occupying the position of trustee is in duty bound to act in the utmost good faith for the benefit of the other. We think that relation here existed. Under the terms of plaintiffs assignment, defendants were under the obligation to exercise the utmost good faith to secure a renewal or an extension of the lease if they desired to continue to further prospect the property for oil or gas, as was the case under the facts disclosed by this record.” (Emphasis added.)

Since the opinion in the Probst case discloses that no confidential or personal relationship existed between the parties and that there were no unusual terms or provisions in the instrument of assignment, but that said instrument of assignment provided to the effect that the overriding royalty interest there created was applicable to any leases in extension or renewal of the assigned lease, the fiduciary relationship which the court found to exist could have arisen only from the relative positions of the parties and the “extension or renewal” provisions of the instrument of assignment.

24 Am.Jur. 590, Gas & Oil, Sec. 82:
“Relationship Arising from Transfers. —While the transfer of a lease does not ordinarily create any confidential relationship between the parties, this is not, of course, always the case. The terms of the conveyance may be such as to impose upon the assignee or sublessee the duty of protecting the interests of the assignor or sublessor; and, whenever they are of such character, he must comply with the general rules that govern the conduct of persons occupying a trust status, and any effort on his part to procure from the lessor rights antagonistic to those of the assignor will be defeated. Thus, when an assignment expressly provides that any extension or renewal of the lease shall he subject to the overriding royalty therein agreed upon, the courts will regard a new lease procured by the assignee as an extension or renewal of the old one and charge it with the royalty so reserved, even though it was not granted until production under the former lease had come to an end. * * * ” (Emphasis added.)

Summers Oil & Gas, Permanent Edition, Sec. 554, pp. 634-639:

“While the right to overriding royalty, or a sum of money paid out of production on oil or gas, created in the assignment, does not survive the termination of the assigned lease, yet in a number of cases the assignor has claimed that the assignee, by permitting the lease to expire, or by surrender thereof, and the taking of a second lease from the lessor, has violated a relation of trust and confidence, and that the assignor should be entitled to such overriding royalty or money out of production under the renewal lease. The mere assignment of an oil and gas lease created no such fiduciary relation. If it is created, it must be by the terms of the assignment. In a number of cases the courts have held that the provisions of the assignment did not create a fiduciary relation between the parties so that the assignor would be entitled to the payment of overriding royalties or to the sums out of oil or gas produced under a second lease taken by the assignee. But where the assignment of a lease expressly provided that the reservation of an overriding royalty should apply to extensions, renewals or modifications of the lease that the assignee or his successors might secure, it was held that such provision created a relation of trust and confidence between the assignor and his assignees permitting the assignor to payment of the overriding royalty reserved in the assignment out of oil or gas produced under the second lease.” (Emphasis added.)

Moreover, there are a number of authorities holding that the respective positions of an assignor-overriding royalty interest owner and an assignee-working interest owner creates a fiduciary relationship between said parties, and their respective successors in interest, merely from the relative positions of said parties, irrespective of whether or not there is any confidential or personal relationship between said parties and irrespective of whether the assignment creating the overriding royalty interest expressly provided to the effect that such interest will be applicable to renewal or extension leases. Rees v. Briscoe, 315 P.2d 758 (1957); Oldland v. Gray, 179 F.2d 408 (Cir.Ct.App. 10th, 1950, cert, den., 339 U.S. 948, 70 S.Ct. 803, 94 L.Ed. 1362) ; Kennedy v. Seaboard Oil Company of Delaware, 99 F.Supp. 730 (U.S.D.Ct., Cal., 1951).

An excellent example of the imposition by the law of such fiduciary relationship between parties to oil and gas transactions, merely by reason of the relative positions of such parties and irrespective of the existence of any confidential or personal relationship between such parties, is the long judicially recognized duty imposed upon the owner of the leasing power to exercise such power in such manner as to constitute the utmost good faith toward a nonparticipating royalty owner whose interest is subject to such leasing power.

Schlitter v. Smith, 128 Tex. 628, 101 S.W. 2d 543, (1937), involved a deed to land wherein the grantor reserved “an undivided one-half interest in and to the royalty rights on all of oil and gas and other minerals in, on and under or that may be produced from the land herein conveyed.” The court held that the grantor was entitled to receive one-half of such royalty as may be reserved in any oil, gas or mineral lease which may be executed by the grantee. It said: “We think that self-interest on the part of the grantee may be trusted to protect the grantor as to the amount of royalty reserved. Of course, there should be the utmost fair dealing on the part of the grantee in this regard.”

Further, as reflected by the above authorities, the law applicable to oil and gas transactions goes beyond the traditional fiduciary concept and imposes a fiduciary relationship between the parties to an assignment of an oil and gas lease, in which assignment the assignor excepts and reserves an overriding royalty interest in the production under the assigned lease or any extensions or renewals thereof, merely by reason of the “extension or renewal” provisions of such assignment, irrespective of,, and in the complete absence of, any confidential or personal relationship between such parties.

There are no cases to be found in this jurisdiction or in any other jurisdiction, holding a lease taken by the assignee, or by the assignee’s successors in interest, after the expiration of the assigned lease and covering the same land as the assigned lease, not to be in extension or renewal of the assigned lease, and therefore not burdened with the excepted and reserved interest, where the instrument of assignment creating the excepted and reserved interest expressly provided to the effect that the excepted and reserved interest was to be applicable to leases in extension or renewal of the assigned lease. Despite the Court’s reliance upon them, neither the case of Thomas v. Warner-Quinland Company of Texas, 65 S.W.2d 321 (Tex.Civ.App. 1933, error ref.) nor the case of Wagner v. Sheets & Walton Drilling Company, 359 S.W.2d 543, (Tex.Civ.App.1962, error ref., n. r. e.) are such cases.

In the Thomas case certain leases were assigned, the assignor excepting and reserving a production payment interest in production from the assigned premises, but which exception and reservation made no reference whatsoever to the excepted and reserved interest being applicable to leases in extension or renewal of the assigned leases; the assignment provided that the assignee was to commence three wells oh the premises covered by the assigned leases in such time as to complete same within the terms of the assigned leases, or any extensions that might be procured, one of which wells was to be commenced by a specifically designated date, such drilling obligations, however, to be fully discharged when and if assignee re-assigned to assignor, at least ninety (90) days before the expiration of the assigned leases, or any renewals thereof; the assignment further provided that, when and if assignee had drilled said three wells, all of the assigned leases would vest in assignee unconditionally, which provision was entitled to, and was given by the court, particular significance by reason of the fact that such provisions had been inserted by pen into the otherwise typewritten assignment. Therefore, it easily is perceived that, under the express terms of the assignment in the Thomas case, the only words contained in the assignment pertaining to extension or renewal of the assigned leases were confined to, and were applicable only to, the portion of the assignment delineating the time within which the assignee was required to drill the three wells, or to re-assign to assignor the assigned leases, and that, under the express terms of the assignment, such words pertaining to extension or renewal of the assigned leases were not made applicable to the excepted and reserved interest. Moreover, in the Thomas case the assignee had drilled the three wells, in compliance with assignee’s drilling obligations under the assignment, prior to the time that assignee procured the new lease referred to in said case, and said case turned on such fact; the court determined that, in view of the provision inserted into the assignment by pen, referred to above, the assignor had no further interest in the assigned leases after the assignee had complied with the referenced drilling obligations, except insofar as concerned the excepted and reserved interest under only the assigned lease, which holding was in conformity with the provisions of the particular instrument of assignment involved.

As concerns the Wagner case, there is no indication whatsoever in the opinion that the assignment there involved contained any provisions to the effect that the excepted and reserved interest was to be applicable to leases in extension or renewal of the assigned lease, and therefore the facts of that case are distinguishable on a material point from the facts of the instant case, and said case does not in any wise support petitioners’ position in the instant case.

The comment on the Wagner case immediately above set forth is equally applicable to the case of Brannan v. Sohio Petroleum Company, 260 F.2d 621 (Cir.Ct. App. 10th, 1958) since the assignment there involved did not contain any provisions to the effect that the excepted and reserved interest was to be applicable to leases in extension or renewal of the assigned lease.

The Court says that the cases relied upon by respondent are distinguishable from the instant case in that the assignee was not interest was to be applicable to leases in force and was given the right to surrender the lease without the consent of respondent by this provision:

“There shall be no obligation, express or implied, on the part of Assignee, its successors or assigns, to keep said lease in force by payment of rentals or drilling or development operations and As-signee shall have the right to surrender all or any part of such leased acreage without the consent of Assignor.”

In its holding the Court says: “We construe the ‘renewal or extension’ provisions together with the provision set out as relieving the lessee from the duty to perpetuate the lease, and thus the overriding royalty.” The Court seems to be saying that since this provision in the assignment relieves the assignee of any duty to perpetuate the lease that the “renewal or extension” provision means nothing. Upon examining the lease here it is found that this provision does not relieve the lessee (assignee) of any duty therein imposed. The lease did not require any development to be made, it did not require any rentals to be paid. It merely provided that if one or the other did not take place the lease would terminate. Furthermore, the lease provided:

“Lessee may, at any time prior to or after the discovery and production of minerals on the land or on acreage pooled therewith, execute and deliver to Lessor or place of record a release or releases of any portion or portions of the lands and be relieved of all requirements hereof as to the land surrendered, and, if during the primary terms, the rental shall be reduced proportionately, according to acreage.”

I agree with the Court that Sunac was under no duty to develop the land or to continue the lease in force. The lease imposed no such duty. The above quoted provision in the assignment merely reiterates that fact. I also agree that Sunac had the right to surrender the lease or any part thereof, even though the lease is held by production. The above quoted clause merely reiterates that right. The provision relieves Sunac of no duty imposed by the lease, and gives them no rights not granted by the lease. Consequently, it is difficult to understand by what reasoning the Court can say that such provision destroys the relationship of trust and confidence created by the “renewal or extension” provision contained in the assignment. The Court does not cite any cases in support of such conclusion, nor have I been able to find any such cases.

By reason of the peculiar circumstances existing at the time the new lease was taken, it is submitted that they in themselves create a relationship of trust and confidence between the parties. When the question of invalidity of the lease was raised by the lessors to Sunac, Parkes’ rights were involved just as were Sunac’s. If Sunac had stood its ground and suffered a lawsuit, Parkes would have been an indispensable party defendant. Parkes had just as much right to settle with the lessors as did Sunac, but Parkes had no opportunity to settle. Sunac went behind his back and sold him out by taking a new lease and thereby releasing the old one. This sort of conduct should not be allowed to cut Parkes out.

It is respectfully submitted that for the reasons and under the authorities indicated above there existed between petitioners and respondent a fiduciary relationship not only by reason of the “extension and renewal” provision, but by reason of the peculiar circumstances existing at the time the new lease was taken. Such new lease constituted a renewal of the old one irrespective of whether or not the latter lease in fact terminated prior to the effective date of the former lease.

I would affirm the judgments of the Court of Civil Appeals and the trial court.

SMITH and POPE, JJ., join in this dissent.

      I. The dissent in Newman Brothers was of the view that the dry hole must have occurred before the end of the primary term for the 60-day provision to have applied. Under that view even if the oil well on 416 S.W.2d — 51 the gas unit here were considered to be a “dry hole,” it was not completed during the primary term; and hence the lease here under consideration terminated.

      I. The assignment provided, “Assignor hereby reserves unto himself, his successors, heirs and assigns as a perpetual overriding royalty ⅜ * * ¾6 of ⅞ of all the oil, gas and/or casinghead gas, if, only, as and when produced, saved and sold from the premises covered by this lease, or any extensions or renewals thereof * * (Emphasis added.)


source: Caselaw Access Project

author: BELCHER, Judge.

license: Public Domain

text:
    Luke Joseph RENER, Appellant, v. The STATE of Texas, Appellee.
    No. 40212.
    Court of Criminal Appeals of Texas.
    May 31, 1967.
    Robert Maloney, Dallas, Phil Burleson (On Appeal Only), Dallas, for appellant.
    Henry Wade, Dist. Atty., John Stauffer, Scott Bradley and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for possession of marijuana ; the punishment, thirty years.

The testimony of the state reveals the possession by the appellant of marijuana, a narcotic drug, as charged.

As ground for reversal it is contended that the arrest of the appellant was illegal and the fruits of the arrest and search were inadmissible in evidence.

It is not necessary to pass upon the contention regarding the legality of the arrest and obtaining the possession of the cigarette. Any objection which the appellant may have had was waived as shown by the following quoted testimony which he introduced.

On direct examination by the appellant, Officer Watson, one of the two officers who participated in the arrest and in obtaining the cigarette from the appellant, testified in part as follows:

“DIRECT EXAMINATION”
BY MR. MALONEY:
“Q Would you state your name to the Court and jury, please?
“A Norman Watson.
“Q I take it you’re employed by the Dallas Police Department?
“A Yes, sir.
“Q Were you present at the time that Luke Rener (appellant) was arrested by you and your partner, Officer Walker, at Virginia and Annex ?
“A Yes, sir.
“Q Where did you see Luke Rener?
“A He was in a phone booth on the corner of Annex and Virginia.
“Q Yes, in steps, how did you step to the phone booth?
“A I walked over to it about five or ten feet and I ran the rest of the way.
“Q Why did you run?
“A Because I saw Luke pull what appeared to be a marijuana cigarette out of his sock.
“Q Tell the jury how he did that?
“A He reached down with his right hand and pulled his left leg up and pulled the cigarette from his sock.
“Q What did he do with the cigarette?
“A Put it in his mouth.
“Q All right, what made you think that was a marijuana cigarette?
“A It wasn’t a normal cigarette. It had the appearance of being a hand-rolled cigarette, which most marijuana cigarettes are hand rolled.
“Q All right, and what did he (Officer Walker) do as he walked to the phone booth?
“A He did the same thing I did. He walked, I would say, within probably ten feet and then he started running, that was about the time I saw him.
“Q Did you run because he was running or something that you saw?
“A No. I was running because I saw Luke pull the cigarette out of his sock.
“Q All right, tell me how he did that. Where was his hands and what did he do?
“A All I saw was his right hand and he lifted that left leg up and pulled a cigarette out of his sock.
“Q Just reached down and got this cigarette out of his sock. Now, how was he holding that in his hand?
“A When he came out with it, he just had it between his fingers.
“Q Had it between his fingers and put it in his mouth, is that right?
“A Yes, sir.
“Q All right. What did your partner do?
“A He was in the phone booth trying to get the cigarette out of his mouth.
“Q What did you see Officer Walker do with the marijuana cigarette, if you saw it, after he supposedly took it out of Luke’s mouth?
“A He showed it to me while I still had Luke around the throat. He held it up and said, ‘I’ve got the cigarette.’ And, then, he put it in his pocket, I believe.”

Having introduced evidence of the possession of the cigarette in question, which was shown to contain marijuana, the appellant is not in position to complain of the proof of the same fact by Officer Walker. 5 Tex.Jur.2d 704, Sec. 445; Sutton v. State, 166 Tex.Cr.R. 580, 317 S.W.2d 58; Garza v. State, Tex.Cr.App., 397 S.W.2d 847.

A fatal variance between the alleged date of the prior conviction and the proof is urged as a ground for reversal in that the mandate, after affirmance of the case on appeal, was issued June 25, 1960, and filed with the clerk of the trial court on June 29, 1960.

It was alleged that the prior conviction became final on January 11, 1960.

The evidence shows that said judgment was rendered and entered on January 11, 1960, and that sentence was pronounced upon the same date.

The appeal, the affirmance and the issuance of the mandate which was filed with the clerk of the trial court on June 29, 1960, did not affect the date of the finality of the judgment rendered and entered and the sentence pronounced by the trial court on January 11, 1960. The proof corresponds with the allegations of the prior conviction. No variance is shown. Goodale v. State, 146 Tex.Cr.R. 568, 177 S.W.2d 211.

Error is urged on the ground that the state read to the jury the allegations of the prior conviction upon the trial on the issue of guilt or innocence.

This matter first arose during the cross-examination of the appellant as follows:

“Q Let me read you something here, Luke (appellant), and you tell me if this is you: (The enhancement allegations of the prior conviction were read.)
“And they’re referring there to what ^ we read you yesterday when you pled here. Is all that true that I just read you? That’s all true, isn’t it? Having to do with this business in Judge Brown’s Court in 1960?
“A I guess, I didn’t hear him read it all that.
“Q In other words, then, you don’t want to admit that all of this is true?
“A I don’t know.
“Mr. Maloney: Your Honor, I object to that.
“The Court: I’ll sustain it.”

Next, without objection, the appellant admitted the prior conviction, in 1960, and further testified without objection, that while out on parole on said prior conviction he pled guilty to the possession of dangerous drugs which resulted in the revocation of his parole on the 1960 conviction.

Following the return of the verdict of guilty by the jury on the primary offense, the appellant elected to have the jury assess the punishment. Upon the reading of the second paragraph of the indictment to the jury, the appellant pled nolo contendere. In considering the above ground urged as error in light of the record, no reversible error is shown.

The other grounds urged as error have been considered and no error is presented by either of them.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Ulis Lando PENNINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 40432.
    Court of Criminal Appeals of Texas.
    June 14, 1967.
    Richard E. Harrison, Dallas, for appellant.
    Henry Wade, Dist. Atty., Curtis Glover, Doug Mulder and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is felony theft with two prior non-capital felony convictions alleged for enhancement; the punishment, life.

Officers Eudy and Whitehead testified that while on patrol on the day in question they observed a 1966 Chevrolet bearing Texas license plates numbered JVM 808 parked on the grass near the highway with appellant seated under the steering wheel. He was alone. One of the officers asked appellant if he was having trouble, and when he began to talk to them, they observed that he was intoxicated. The officers stated that the name appearing on the ignition key chain was not the same as that exhibited to them on appellant’s driver’s license, and when being questioned as to whom the Chevrolet belonged, appellant first said that it belonged to a relative and later said that it belonged to his girl friend. Appellant was arrested because of his intoxication and placed in jail.

State’s witness Norton testified that he operated a parking lot in Dallas and that Elizabeth Venning brought her new Chevrolet to his lot on the day in question with instructions for him to leave her keys over the sun visor as was his custom when he closed for the night.

Mrs. Venning testified that she left her 1966 Chevrolet bearing license number JVM 808 at Mr. Norton’s parking lot when she went to work about noon and instructed him to leave her ignition keys over the sun visor when he left and that when she got off work at 10 o’clock and found that her automobile was gone, she notified the police. She testified that when she got her automobile back the next day it had not been damaged and that only a small amount of gasoline was missing.

After a finding of guilt of the primary offense, proof was made as to appellant’s identity as being the accused in the convictions alleged for enhancement.

In his brief filed in the trial court appellant contends that the evidence is insufficient to establish that the automobile in which appellant was found seated near Seagoville was the same automobile stolen from Mrs. Venning. He relies upon a discrepancy between the brown color thereof as described by the officers and the tan color as reported stolen by Mrs. Venning. We are not impressed with this variance as these terms are often used interchangeably. Reliance is had upon the holdings of this Court in Kellar v. State, 112 Tex.Cr.R. 404, 16 S.W.2d 824, and Cornelius v. State, 117 Tex.Cr.R. 550, 36 S.W.2d 1028.

In Kellar there was a variance in the engine number of the automobile belonging to the injured party and the one found in accused’s possession, and there was no showing that the automobile claimed by the injured party at Connell’s garage was the one found in the possession of the accused.

In Cornelius the injured party gave no description whatsoever of the automobile which he alleged was stolen from him and stated that he had not seen it since it had been taken and there was no proof that the automobile in which the accused was seen riding belonged to the owner named in the indictment. These facts distinguish these cases from the one at bar.

Appellant next contends that the evidence is insufficient to show that appellant had the Chevrolet in which he was found seated “in his possession”. Reliance is had upon Pollard v. State, 33 Tex.Cr.R. 197, 26 S.W. 70, and Rosenbush v. State, 136 Tex.Cr.R. 50, 122 S.W.2d 1071. In Pollard, there were reversible errors in the jury argument as well as in the charge, but the court there held that proof that appellant was riding 15 or 20 steps to the rear of a wagon which was being driven by others was insufficient to support a finding that he was in possession of a plow which was discovered in the wagon. In the case at bar the appellant was alone in the stolen automobile and gave conflicting accounts as to the identity of its owner.

In Rosenbush the proof showed no more than an intention to steal, as accused never got control or possession of the calf that got away with accused’s rope while accused was in the act of trying to steal the calf. Here the automobile was taken in downtown Dallas and found in appellant’s possession near Seagoville.

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


author: ONION, Judge.

text:
    Floyd Lee PATTERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 40464.
    Court of Criminal Appeals of Texas.
    June 21, 1967.

      Don Metcalfe, Howard B. Law, D. B. Mason, Dallas, for appellant.
    Henry Wade, Dist. Atty., Frank Watts, Tom Reese and Malcolm Dade, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Murder with Malice; the punishment, assessed by the jury at ninety-nine (99) years confinement in the Texas Department of Corrections.

Appellant was tried jointly with Willie Sewell in Criminal District Court No. 4 of Dallas County commencing on the 19th day of May, 1966. The Court charged the jury on the law of principals.

In his first ground of error, appellant contends that the trial court erred in failing to charge on the law of circumstantial evidence.

The record reveals that the deceased, Leland Floyd Hendley, a forty-three year old white insurance agent, was making collections in an apartment area or complex in the northern part of the City of Dallas between 6:00 P.M. and 7:00 P.M. on February 15, 1966, when he was attacked and beaten. The Dallas Medical Examiner testified death resulted from multiple injuries and cerebral edema. Mrs. Lucille Bennett, who lived nearby, witnessed part of the attack upon the deceased at approximately 6:45 P.M., but was unable to identify the assailants except that they were colored males wearing trench coats. She related that when she first observed the attack, the deceased was on the ground and “they were strangling him”. Upon her approach,' the two assailants fled, and’ she expressed her amazement that in the dark they had been able to run under rather than into the nearby clothesline. A short time later after the police and an ambulance had been summoned, the deceased expired at the home of Mrs. Bennett.

Without any showing as to personal money the deceased may have had with him at the time, it was determined from insurance company records that the deceased had collected $136.09 on the day of his death.

On February 18, 1966, appellant and Willie Sewell were arrested.

Jackie Harris, a friend of both the appellant and Sewell, testified that the appellant entered a pool hall in East Dallas on the night of the offense between 7:00 P.M. and 8:00 P.M. and told him that he (the appellant) “had big money”, and that he and Sewell “got an insurance man”. Harris related the appellant gave him a dollar and paid Jarvis Smith a dollar to take him (appellant) home.

The following day, February 16th, Harris testified appellant returned to the pool hall with a new sweater and pants with his hair newly “processed”.

Harris revealed that on February 17th, he saw Willie Sewell and asked him, “ * * * did he do it ?”, to which Sewell replied, “Yes.” Harris further testified, “I asked him (Sewell) if he knew the stud was dead and he said ‘yes’ and he said ‘he was scared’. He told me him and Floyd had whipped the stud. He said Floyd damn near choked the stud to death”. Harris said at the time Sewell had a pint of Gordon’s and stated he had “paid for all of it”.

The record also reflects that on February 17th, Willie Sewell, who was unemployed, but was a golf caddy on occasion paid $18.-31 for the hat he was wearing at the time of his arrest.

Maurice Coursey, a friend of the appellant for seven years, testified he saw the appellant at a bus stop on the night of February 17th and appellant stated “he had made some money off an insurance man”. To appellant’s statement, the witness Coursey replied, “Do you know the man died and you are in big trouble and you shouldn’t b,e talking about it.”

Charles Walker, another friend of the appellant and Sewell, saw appellant the day following the offense and related that appellant told him that he and Sewell had “made 'some big money”; that they had gotten “about $140.00”, which had been divided between them. After' this conversation, Walker, on February 17th, called Sewell on the telephone and asked to borrow money and testified that Sewell replied, “He didn’t know Patterson (appellant) would be talking about the money.”, and further that “him and Floyd had robbed an insurance man in North Dallas”.

J. W. Thomas testified that on February 18th, in the presence of appellant and Sewell, he told Sewell that he had heard that Sewell and appellant had killed this insurance man in North Dallas. To this Sewell laughed and replied, “* * * he thought Floyd Lee was going to choke the in_f_to death.”, and that “* * * they like to have got caught.”, and that “ * * * later he went to this lady’s house.”

Neither the appellant or Sewell testified. Six witnesses were called on the issue of alibi. Such testimony, as well as other evidence in the record, reflects that Willie Sewell lived with his mother and stepfather approximately two blocks from the scene of the attack; that he was home most of the day of the offense; that the appellant was at such apartment with Sewell from 3:00 or 4:00 o’clock in the afternoon on such date until he got a ride to East Dallas at sometime after 6:30 P.M.

While alibi testimony placed Sewell at his home at the approximate time of the attack on the deceased, it also reveals that shortly thereafter he appeared at the apartment of Mrs. Bennett’s son and daughter-in-law, and after observing flashing red lights, went with them to the apartment of Mrs. Bennett, the lady whose appearance on the scene had terminated the assault.

Appellant recognizes the well established rule that proof of an accused admitting or confessing to having killed the deceased is direct and not circumstantial evidence of the main inculpatory fact and a charge on circumstantial evidence is not required when proof of such admission or confession is in evidence. 4 Branch’s Anno.P.C.2d 358, Sec. 2050; Cavazos v. State, Tex.Cr.App., 365 S.W.2d 178; Stevenson v. State, 169 Tex.Cr.R. 431, 334 S.W. 2d 814, 815. He, nevertheless, contends in view of his timely objection in writing to the Court’s charge and the nature of the admissions that the Court erred in failing to charge on circumstantial evidence. He cites and relies upon Martinez v. State, 151 Tex.Cr.R. 316, 207 S.W.2d 387. In Martinez, it was held that the written confession of the accused was insufficient to make a case against him by direct evidence, and that a charge on circumstantial evidence should have been given by the trial court. Though the accused Martinez confessed he had taken some turkeys there was nothing in the confession to show they were the same turkeys taken from the injured party or from his premises. The meaning of the Martinez case is clear that even though the accused confesses or admits to the commission of a' crime, it must be shown by the evidence and the confession of the accused that the crime admitted is the same crime for which the defendant is being tried if the circumstantial evidence charge is not given. We adhere to the rule laid down in the Martinez case, but we cannot conclude that it is controlling in the case at bar. Each case must in a measure be tested by its own facts.

The statements made by Sewell and the appellant to their friends, while not in custody, clearly show that they robbed and killed an insurance man in North Dallas, though none of the statements identify the deceased by name.

These statements must be considered in light of all the other evidence presented. When this is done, it is shown that (1) the deceased was an insurance man; (2) the robbery-killing occurred in an area known as North Dallas; (3) the amounts of money taken and admitted were approximately the same; (4) that the deceased was choked or strangled, as appellant and Sewell admitted; (5) that they were almost caught, as they admitted; (6) that following the robbery-killing, Sewell went to the apartment of the lady, Mrs. Bennett, whose appearance had terminated the attack, and the very place where the deceased, Leland Hendley expired.

Taking all the facts together, we conclude that the trial court did not err in failing to charge the jury on the law of circumstantial evidence.

We further note that the rule is well settled that if the facts proved are in such close juxtaposition to the main fact to be proved as to be equivalent to direct testimony, a charge on circumstantial evidence is not required. 4 Branch’s Anno.P.C. 359, Sec. 2050. Chapin v. State, 167 Tex.Cr.R. 390, 320 S.W.2d 341.

We further observe that in his timely presented written objection to the failure of the Court to charge on circumstantial ■evidence, appellant did not distinctly specify or call the Court’s attention to his contention that the admitted statements or confessions of the appellant and Sewell were not sufficient to take the case out from under the circumstantial evidence rule as was done in Martinez v. State, supra. See Article 36.14, Vernon’s Ann.C.C.P.

Appellant’s first ground of error is overruled.

Appellant next contends the trial court erred in failing to grant a mistrial when the prosecutors, during jury argument, alluded to the failure of the appellant to testify during the trial.

We have carefully examined the three instances of which appellant complains. In the first, the prosecutor in his argument, referring to Jackie Harris having confronted both appellant and Sewell prior to their arrest, stated, “Now, this is one man who has talked to both of them, in this instance, on three different occasions, and not one denial from the lips of this man nor this man”. In the second, the prosecutor while referring to Charles Walker’s conversation with Sewell over the telephone and Walker’s inquiry concerning Sewell and appellant having made some money, stated, “And what was his response? He ■doesn’t deny it. Sewell doesn’t deny it.”

In each of the above instances, the Court overruled appellant’s motion for a mistrial. The record clearly demonstrates that the argument complained of was made by the prosecutor while he was reviewing the admitted statements of appellant and Sewell which were in evidence before the jury. A reading of the argument complained of in context clearly reflects that the reference was to the conversation^ concerning the admitted statements and not to appellant’s or Sewell’s failure to testify. No reversible error is shown. Lopez v. State, 170 Tex.Cr.R. 208, 339 S.W.2d 906; Howard v. State, 111 Tex.Cr.R. 205, 13 S. W.2d 80.

In the third instance complained of, the prosecutor in his closing argument, referring to appellant’s argument that the State had failed to call one Davidson, stated:

“He said we haven’t brought you this man Davidson. And I believe that Dr. Rose started to tell you what he had heard from Davidson and that drew an objection from the Defense. Of course, they can object to what Davidson said because that would be hearsay, but I’ll tell you that they have the same right to subpoena people down here just like we do. If there’s anything that they wanted you to hear, and believe me, they are experienced criminal defense attorneys—if there’s anything that they wanted you to hear from any witness, they could have gotten him down here and put him on the stand.”

It is clear that such was invited argument and referred to the defendant’s failure to call a witness. Such argument did not constitute a comment on the failure of the defendant to testify. 1 Branch’s Anno. P.C.2d 412, Sec. 393. The Court did not err in overruling appellant’s motion for mistrial.

The remaining ground of error relates to the refusal of the trial court to grant a mistrial when the witness, Mrs. Lucille Bennett, was allowed to testify before the jury a second time after it was discovered the jury had not been sworn during her first appearance on the stand. Such action, appellant contends, deprived him of a fair trial by an impartial jury.

It appears that after Mrs. Lucille Bennett, the State’s first witness, had completed her testimony, the jury was sworn for the first time in accordance with Article 35.22, V.A.C.C.P. After the State rested its case in chief, the State moved to reopen its case to re-introduce the testimony of Mrs. Bennett, or in the alternative, to avoid any possibility of re-emphasis to stipulate as to her testimony. Appellant refused to stipulate and the trial court overruled the appellant’s motion for mistrial, and permitted the State to re-open to present Mrs. Bennett’s testimony.

Prior to the presentation of Mrs. Bennett’s testimony, a second time, the able trial court carefully explained to the jury the necessity of re-calling Mrs. Bennett, and properly admonished them the testimony was not being re-heard for emphasis.

The matter of allowing the State to reopen is discretionary and no abuse of the trial court’s discretion is shown. Adams v. State, 154 Tex.Cr.R. 92, 221 S.W.2d 264.

It is observed that appellant again cross-examined Mrs. Bennett and inquired into matters not testified to during her first appearance on the stand.

We fail to see how the appellant was deprived of a trial by an impartial jury or of due process by the refusal of the trial court to grant a mistrial.

The judgment is affirmed.


author: MORRISON Judge.

text:
    Joe Wayne LANGSTON, Appellant, v. The STATE of Texas, Appellee.
    No. 40463.
    Court of Criminal Appeals of Texas.
    June 14, 1967.
    W. John Allison, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., John Emmett, Joe K. Hendley and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON Judge.

The offense is murder with malice; the punishment, life in the Department of Corrections.

Appellant’s first ground of error is that there is a material variance between the name of the deceased as alleged in the indictment and the name of the deceased as shown by the proof offered by the State. The State’s witness, Charlie Ruth Bealer, testified that appellant struck on the head with a crowbar a person to whom she referred at different points in her testimony as Calvin Blair and Calvin Burns. She identified State’s exhibit No. 1 as being a photograph of such person. Dr. Earl Rose testified that he had performed an autopsy on a person who had been identified for him as “Calvin Thomas Blair.” When shown State’s exhibit No. 1, he testified that the picture was of “the body identified to me as Calvin Thomas Blair.” Appellant testifying in his own behalf stated that he had known Calvin Blair for 35 years and that he hit him in the head with a jack handle and remained in hiding for some months after he heard that the Calvin Blair whom he hit had died. The testimony is sufficient to prove that the person referred to by Charlie Ruth Bealer as both Calvin Burns and Calvin Blair is the same person who was known to appellant as Calvin Blair and upon whom the autopsy was performed and to whom the indictment refers as “Calvin Thomas Blair”; therefore, no variance is shown. Luttrell v. State, 65 Tex.Cr.R. 102, 143 S.W. 628, upon which appellant relies has been distinguished by this Court in Bell v. State, 166 Tex.Cr.R. 340, 313 S.W.2d 606. See also Fletcher v. State, 171 Tex.Cr.R. 74, 344 S.W.2d 683.

Appellant’s second ground of error relates to his application to take the deposition of State’s witness, Charlie Ruth Bealer. He contends that the trial judge abused his discretion by denying the application without holding a hearing to determine its merit. Appellant’s application was filed on Friday, August 5, 1966, three days before trial was set to begin on Monday, August 8, 1966. In view of the fact that the indictment had been pending for almost a year and appellant’s attorney had been appointed for two months before the trial, and that the record reflects that the cause was passed on two prior occasions, we cannot say the trial court abused his discretion by refusing to hold a hearing and by denying the application. See commentaries under Article 39.02, Vernon’s Ann.C.C.P.

Finding no reversible error, the judgment is affirmed.


text:
    Willie Edward SEWELL, Appellant, v. The STATE of Texas, Appellee.
    No. 40465.
    Court of Criminal Appeals of Texas.
    June 21, 1967.
    Appeal from Criminal District Court No. 5, Dallas County; John Mead, Judge.
    Don Metcalfe, Howard B. Law, D. B. Mason, Dallas, for appellant.
    Henry Wade, Dist. Atty., Frank Watts, Tom Reese and Malcolm Dade, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Murder with Malice; the punishment, assessed by the jury at ninety-nine (99) years confinement in the Texas Department of Corrections.

Appellant was tried jointly with Floyd Lee Patterson in the Criminal District Court No. 4 of Dallas County, commencing on May 19, 1966.

The grounds of error raised are identical with those raised by the Appellant Patterson and passed on by this Court in Patterson v. State, Tex.Cr.App., 416 S.W.2d 816, this day decided.

The judgment is affirmed.


text:
    Thaddeus KING, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 40443.
    Court of Criminal Appeals of Texas.
    June 21, 1967.
    Marvin O. Teague, Houston (On Appeal Only), for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Frank Puckett, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for the possession of heroin; the punishment was assessed at sixteen years.

A waiver of trial by jury, signed in open court by the appellant, with the signed consent and approval of state’s counsel before the entry, of a plea of not guilty and with the written consent and approval of the court, was filed with the papers in this cause.

While testifying, two officers identified the appellant as the driver of an automobile which they were following along a public street, when they saw him throw a small package from the left window into the street. The package thrown from the car was immediately recovered by one of the officers. Upon the offer of said package into evidence by the state, the appellant announced, “No objections.”

A chemical analysis by a chemist, whose qualifications were stipulated, showed that the substance in the package contained heroin.

It is asserted that the package and contents were inadmissible in evidence on the ground that they were obtained as a result of an illegal arrest and search. The contraband was not obtained as a result of appellant’s arrest and search but was recovered from where it was thrown on the ground by the appellant. Robinson v. State, 163 Tex.Cr.R. 499, 293 S.W.2d 781; Nava v. State, 170 Tex.Cr.R. 355, 340 S.W.2d 955; Lopez v. State, 171 Tex.Cr.R. 672, 352 S. W.2d 747; Rodriguez v. State, 172 Tex.Cr.R. 540, 360 S.W.2d 406.

Error is urged on the ground that the appellant never had possession of the package in question.

It is concluded that the evidence as shown above sufficiently warrants the finding that said package was in appellant’s possession as charged. 40 Tex.Jur.2d 412, Sec. 7; Hunt v. State, 158 Tex.Cr.R. 618, 258 S. W.2d 320.

The judgment is affirmed.


text:
    Raymond Edwin HAFTI, Appellant, v. The STATE of Texas, Appellee.
    No. 40262.
    Court of Criminal Appeals of Texas.
    June 28, 1967.
    Rehearing Denied July 26, 1967.

      Orville A. Harlan (By Appointment), Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Bob Musslewhite, Asst. Dist. Attys., Frank Briscoe, Former Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for robbery with firearms; the punishment, death.

The motion for new trial was overruled and notice of appeal was given before January 1, 1966.

The testimony of the state reveals that about 5 p. m., Saturday, September 19, 1964, the appellant shot Manager Vann of a food store three times with a .38 caliber pistol, kicked Vann while on the floor, making him assist in opening the cash register, and then he took all the currency from it, without Vann’s consent after putting him in fear of serious bodily injury and his life.

The appellant did not testify or offer any affirmative defense.

The appellant urges as a ground for reversal that, the trial court erred in permitting the state to introduce evidence of an extraneous offense, that is, the commission of robbery or theft by him in obtaining possession of the pistol used by him in the robbery of Vann at the store.

In the development of its case in chief, the state’s witness, Frank Vivian testified that he was the owner of the .38 caliber pistol, which had been identified as the pistol used by the appellant in the alleged robbery of Vann, on September 19; that he had possession of it on September 14; that on that day it was in his place of business (an ice house); that the appellant came into his ice house and remained therein for about fifteen minutes; that the pistol in the ice house on that occasion was loaded; and that after the appellant left, the pistol was gone.

While testifying, Manager Vann and three customers of the store identified the appellant as the person who entered the store about 5 p. m., September 19, and exhibited a pistol at the cash register counter. One of the three customers testified that he also saw what appeared to be a pistol in appellant’s right front pocket. Another witness testified that he lived across the street from Vann’s store, that he knew the appellant, and that after hearing two shots he saw the appellant run from the store with a pistol in his hand.

Officer Brannon testified that at the direction of the appellant he found a .38 caliber pistol in appellant’s bedroom in his house, which the appellant then said that he used to shoot Vann during the robbery of Vann’s store.

The appellant objected to the testimony showing his presence at the ice house, on September 14, at the time of the loss from the ice house of the pistol used in the commission of the robbery of Vann’s store on September 19, on the ground that it was immaterial, prejudicial, and proved the commission by him of another and extraneous offense.

It is a fundamental rule of law that one accused of crime is to be tried for the offense charged and none other. Proof, then, of the commission by the accused of other and extraneous crimes becomes admissible only as an exception to the rule stated.

Exceptions to the rule are recognized where the extraneous crime is a part of the res gestae, or tends to show intent or identity, when either or both are an issue, or tends to connect the defendant with the offense for which he is upon trial. 1 Branch 2d 200, Sec. 188.

In determining whether any exceptions exist which would authorize proof of extraneous crimes, the facts of the case must be examined and considered.

It is obvious that the taking of the pistol by the appellant, if he did, from Vivian at the ice house on September 14, was not a part of and, therefore, res gestae of the robbery of Vann at the store on September 19.

Manager Vann and three customers of the store positively identified the appellant as the robber. Another witness, who knew the appellant, saw him run from the store with a pistol in his hand. While showing Officer Brannon the location of the pistol that he said he used to shoot Vann, he also told Brannon that he robbed Vann. .

The appellant did not testify, or offer any testimony in his own behalf, the court’s charge does not contain any defensive instruction, and there is no complaint of its failure to do so.

The evidence raises no affirmative issue as to identity, intent, res gestae, or appellant’s connection with the offense for which he is upon trial.

The rule appears to be consistent that if the testimony of the state leaves no question as to intent or identity of the defendant, proof of an independent crime is not admissible. Also, where there is positive testimony to support the state’s case, proof of other independent offenses is not admissible. 1 Branch 2d 200, Sec. 188; 5 Branch 2d 31, Sec. 2601; 23 Tex.Jur.2d 306, Sec. 197; Story v. State, 107 Tex.Cr.R. 266, 296 S.W. 296; Taylor v. State, 138 Tex.Cr. R. 161, 134 S.W.2d 277; 42 A.L.R.2d 854.

The nature of the evidence revealing the loss of the pistol by Vivian on September 14, when the appellant was in the ice house, followed by the state’s opening argument to the jury that while the appellant was in the ice house “the gun went away. This is all the testimony you heard with reference to that, but don’t you know how it went away?” sufficiently conveyed to the jury facts and circumstances which would warrant the jury’s finding that the appellant unlawfully obtained possession of the pistol he used to shoot Vann.

It is concluded that under the evidence and the authorities applicable thereto, the trial court should not have permitted the state to prove the loss of the pistol by Vivian as shown by the record, and that such proof was prejudicial to the rights of the appellant.

For the error pointed out, the judgment is reversed and the cause remanded.


text:
    Royal Gene CHAMBLER, Appellant, v. The STATE of Texas, Appellee.
    No. 40415.
    Court of Criminal Appeals of Texas.
    June 7, 1967.

      Howard O. Lake, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, M. R. Dimmitt, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Burglary with Intent to Commit Theft; the punishment, enhanced by two prior convictions for felonies less than capital, life. It is observed that the indictment alleged three prior non-capital felony convictions for enhancement, and the defendant personally stipulated as to such prior convictions, but the sentence imposed refers only to two such convictions.

In his first ground of error, appellant contends that the trial court erred in failing to grant his motion to suppress, and in subsequently admitting into evidence before the jury, over his objection, the fruits of an illegal search incident to his unlawful and warrantless arrest.

The record reveals that at approximately 2 A.M. on August 9, 1965, Houston Police Officer R. D. Contreras and his partner received a call from the dispatcher to investigate a call regarding two suspicious persons in the 1000 block of Congress Street in Houston. Just as they arrived at that otherwise deserted location, they saw appellant and another man go around the corner onto the 300 block of Fannin Street “hurrying” and “staggering” and carrying paper bags. A voice from a nearby hotel yelled to officers, “There they go around the corner.” As the officers approached the two men on Fannin Street, Officer Contreras noticed that appellant and his companion could not seem to stand in one place; that their speech was slurred and they mumbled when they talked; that there was a strong odor of alcohol on appellant’s breath; that based on his observation and his experience as a police officer with drunks, Contreras concluded that appellant and his companion were intoxicated. The two men were then arrested.

Upon the search for weapons following the arrest, appellant was found in possession of thirty-seven packages of assorted cigarettes, six or seven bottles of Jax beer, and $18.00 or $19.00 dollars in coins. The search also revealed a screwdriver, a broken file and small knife upon the appellant’s person.

Upon attempting to locate the person in the hotel who had called out to them, the officers observed across the street from the hotel the open front door of the Texas Lounge at 1009 Congress Street, although the place was not lighted or open for business.

Further investigation disclosed that the front door had been broken open and from the markings thereon that a file had been used. A broken piece of a file found inside the business establishment matched the broken file • found in appellant’s pos-séssion. It was determined that a cigarette machine inside the lounge had been broken open and cigarettes and coins taken therefrom, and that some Jax beer had been removed from the premises.

Francis Hundal, owner of the Texas Lounge, testified he closed and locked his business at 12:15 A.M.; that neither the front door or cigarette machine were broken at that time; that he was acquainted with appellant but did not give him or anyone else permission to break and enter his premises.

The State introduced into evidence the City of Houston’s Suspicious Persons Ordinance.

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

The right of a peace officer to make a warrantless arrest of one found to be intoxicated in a public place is well recognized in this State. Johnson v. State, Tex. Cr.App., 397 S.W.2d 441; Brunson v. State, 168 Tex.Cr.R. 113, 323 S.W.2d 597; King v. State, 166 Tex.Cr.R. 231, 312 S.W.2d 501; Aaron v. State, 163 Tex.Cr.R. 635,296 S.W.2d 264; Rent v. State, 160 Tex.Cr.R. 326, 268 S.W.2d 675; Cook v. State, 155 Tex.Cr.R. 580, 238 S.W.2d 200. See also McEathron v. State, 163 Tex.Cr.R. 619, 294 S.W.2d 822.

Further under the circumstances of the instant case, the arrest would have also been lawful on the basis of the City of Houston’s Suspicious Persons Ordinance enacted pursuant to Article 214, C.C.P. (1925), then in effect, now Article 14.03, Vernon’s Ann.C.C.P.

Under the record, appellant s arrest without a warrant being lawful, the incidental search of appellant’s person was clearly authorized. Hardin v. State, 387 S.W.2d 60. Therefore, the trial court did not err in overruling the motion to suppress, and in admitting evidence of the search and seizure.

While the appellant’s conversation with the arresting officers was not admitted, appellant further contends that the fruits of the search and evidence of what was subsequently discovered at the Texas Lounge were rendered inadmissible because the appellant was not given, at the time of his arrest, the warnings required by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694. We do not deem Miranda applicable to the situation here presented. We further observe that Miranda is applicable to trials commencing after June 13, 1966. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. The trial of the case at bar commenced on March 3, 1966.

Appellant’s second ground of error is overruled.

The judgment is affirmed.