author: DICE, Commissioner.

text:
    Mrs. Judy KEY, Appellant, v. The STATE of Texas, Appellee.
    No. 39700.
    Court of Criminal Appeals of Texas.
    June 8, 1966.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

The conviction is under Art. 567b, P.C., for the misdemeanor offense of giving a worthless check; the punishment, three days in jail and a fine of $50.

Trial was before the court on appellant’s plea of guilty.

Judgment was rendered on December 8, 1965. Notice of appeal was given on January 7, 1966.

The record on appeal does not contain a sentence pronounced by the court, as provided by Art. 40.09, subd. 1, C.C.P. of 1965.

Notice of appeal having been given after the effective date of the 1965 Code, the preparation of the record on appeal and the pronouncement of sentence in the cause are governed by the provisions of such Code. Under the provisions of the Code, it was the duty of the trial court to pronounce sentence upon the judgment. Rivera v. State, Tex.Cr.App., 403 S.W.2d 130, opinion delivered June 1, 1966.

In the absence of a sentence, this court is without jurisdiction of the appeal.

The appeal is dismissed.

Opinion approved by the Court.


source: Caselaw Access Project

author: McDONALD, Presiding Judge.

license: Public Domain

text:
    William C. ISAACS, Appellant, v. The STATE of Texas, Appellee.
    No. 39625.
    Court of Criminal Appeals of Texas.
    May 11, 1966.
    Rehearing Denied June 22, 1966.
    Ralph Gismant, Dallas, for appellant.
    Henry Wade, Dist. Atty., W. John Allison, Jr., Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDONALD, Presiding Judge.

The offense is driving while intoxicated; the punishment, 90 days in jail and a fine of $300.00.

The record on appeal contains no statement of facts or bills of exception. Appellant urges this Court to consider certain facts set out in his appellate brief but which are not a part of the record. This cannot be done. Sykes v. State, Tex.Cr.App., 396 S.W.2d 887; Lavan v. State, Tex.Cr.App., 363 S.W.2d 139.

Nothing being presented for review, the judgment is affirmed.


text:
    John Junior MAREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 39698.
    Court of Criminal Appeals of Texas.
    June 8, 1966.
    Charles W. Tessmer (on appeal only), Dallas, Emmett Colvin, Jr. (on appeal only), Dallas, for appellant.
    Henry Wade, Dist. Atty., Robert H. Stin-son, Curtis Glover and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

The conviction is for statutory rape; the punishment, fifty years.

Trial was before the court and jury on September 23, 1965, upon appellant’s plea of guilty.

Notice of appeal was given by appellant on December 30, 1965.

At the trial, the prosecutrix, twelve years of age on the date of the alleged offense and not the wife of appellant, testified that on the night in question the appellant had sexual intercourse with her at Bachman Lake, in Dallas County. Her testimony was corroborated by that of two city of Dallas police officers who testified relative to their having observed appellant and the prosecutrix in appellant’s automobile on the night in question.

Testifying in his own behalf, appellant denied having sexual intercourse with the prosecutrix at Bachman Lake but admitted that he did have sexual intercourse with her at North Lake on the night in question. Appellant also testified, in support of his application for a suspended sentence, that he had never been convicted of a felony.

Under the record, the jury was authorized to find appellant guilty and assess his punishment at fifty years in the penitentiary.

There are no formal bills of exception, or any informal bills showing error. The proceedings appear to be regular.

The judgment is affirmed.

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Ex parte Phillip PERKINS.
    No. 39695.
    Court of Criminal Appeals of Texas.
    May 18, 1966.
    Rehearing Denied June 22, 1966.

      Baldwin & Curry, by Doyle Curry, Marshall, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is an appeal from an order of the District Court of the Seventy-first Judicial District refusing to grant bail in a murder case.

At the hearing the State introduced the evidence of three witnesses who were present at the scene. Each of them testified that two shots were fired in the direction of one Tanghlyn, who was not armed and made no motion toward appellant, as the result of a remark made by Tanghlyn to his companions which was resented by appellant while all the parties were engaged in a dice game. The second shot caused the death of another participant, one Willis. The complaint charged that Willis was killed by mistake while appellant was making an assault with intent to murder Tanghlyn with malice aforethought.

Appellant did not testify, and no defensive testimony was admitted except from appellant’s mother, who testified that she would be able to make a $5,000 bond if the court set appellant’s bond at such figure.

In cases such as this where no evidence is offered showing any justification or excuse for the killing, this Court affirms the judgment denying bail. Ex Parte Parker, Tex.Civ.App., 370 S.W.2d 882, and cases there cited.

It is so ordered.


text:
    Charlie Daniel BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 39283.
    Court of Criminal Appeals of Texas.
    May 11, 1966.
    Rehearing Denied June 22, 1966.

      Weldon Holcomb, Tyler, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

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

The offense is the sale of vodka in a dry area; the punishment, one year in jail and a fine of $500.00.

The State’s case was made by a nonresident undercover agent, who alone testified to the illegal sale, and who, by reason of the fact that the jury knew nothing of his background, might easily have been disbelieved. In order to bolster his testimony, the State was permitted, over objection, to call two known Liquor Control Board Officers, one a resident of the county where this prosecution was pending, and another from the District Headquarters, whom the jury might reasonably believe and who testified that one week after the alleged sale they identified appellant to the undercover agent.

This extra judicial identification is the type of bolstering which this Court has recently held to be improper in Lyons v. State, Tex.Cr.App., 388 S.W.2d 950, and the cases there cited.

For the error pointed out, the judgment of affirmance is set aside; appellant’s motion for rehearing is granted; the judgment is now reversed and the cause is remanded.


text:
    Clarence YANEZ, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 39538.
    Court of Criminal Appeals of Texas.
    April 13, 1966.
    Rehearing Denied June 8, 1966.

      No attorney of record on appeal, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   AMENDED OPINION

MORRISON, Judge.

The offense is assault with intent to murder without malice; the punishment, two years.

The two patrolmen who were involved in this difficulty testified to substantially the same facts, and their testimony will be summarized. At approximately 11:30 on the night in question while on patrol, they observed a pickup truck with a loud exhaust being driven in excess of the legal speed limits within the city of Big Spring, and they gave chase. The pickup failed to heed their signal to stop, but eventually came to a halt in a residential driveway. All four occupants of the pickup got out and immediately announced to the officers that they could not be arrested because they were then at home. The officers told them that they had not come to arrest them, but to warn them of their speed and their defective muffler. Approximately one hour later the officers again observed the same pickup run a stop sign, and they again gave chase. This time the chase was over a greater distance and ended in the same way. When the driver again announced that neither he nor his companions could be arrested because they had reached home, one of the officers told the driver to get in the squad car. Instead of complying, the driver hit one of the officers with his fist knocking his hat off, and the appellant, who was one of the four, fired at the officer, after which the officer returned the fire, and appellant fired at him again, and the officer again returned the fire. Evidently neither was shooting well that night, because the gunfight ended with none of the bullets taking effect, and when the officers retreated to the squad car to call for help, the four left the scene and appellant was not arrested until some three or four days later.

Appellant did not testify in his own behalf, but called two of the occupants of the pickup. They both corroborated the testimony of the officers except as shown hereinafter. The witness Victor Yanez testified that appellant fired the first shot while the witness De los Santos testified that he heard only one shot, and he thought that it was fired from the officer’s pistol.

This is a fair summary of this painfully long trial, and we find the evidence sufficient to sustain the conviction.

We find no merit in appellant’s objections to the court’s charge.

Appellant contends that reversible error is contained in the prosecutor’s final argument which is brought forward in the record and by formal bills.

The record reflects that the prosecutor referred to appellant as a “Latin American punk”. The counsel for appellant objected, his objection was sustained and the jury instructed to disregard the statement. By so ruling the court correctly told the jury that such reference was improper. In view of the ruling, we have concluded that no reversible error is reflected.

Appellant objected to the prosecutor’s statement, “If the officers get in hot pursuit they are entitled to go up on the property and check out the situation.” Appellant also complains of the prosecutor’s reference to the appellant as an “aggressive type”. We have concluded that the statements in the above two bills are supported by the evidence and do not constitute reversible error.

Appellant’s objections to the prosecutor’s statements with regard to the law of defense of another as applied to the facts are deemed without merit.

No reversible error appearing, the judgment is affirmed.


text:
    Earnest GRISSAM, Appellant, v. The STATE of Texas, Appellee.
    No. 39614.
    Court of Criminal Appeals of Texas.
    May 18, 1966.
    Rehearing Denied June 22, 1966.
    H. M. Hood, Borger, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDONALD, Presiding Judge.

The offense is burglary; the punishment, enhanced as provided by Article 63, Vernon’s Ann.P.C., life imprisonment.

Two prior convictions for felonies less than capital were properly proven by the state and admitted by appellant from the witness stand.

The evidence reveals that at about 9 P.M. on the evening of February 26, 1965, an Amarillo switchboard operator received a call from Gruver, Texas, from an unknown man who claimed he had been shot. The operator received no further response to her entreaties for more information, but heard heavy breathing for a while, then nothing. Deputy Sheriff Orville Walker was notified in Gruver, and the telephone call was subsequently traced to the Wester-field Dry Goods Company, where Mr. Westerfield was found dead near the wall telephone which was still off its hook.

Investigation disclosed that Mr. Wester-field’s killer had gained entrance to the store through a restroom window, which had been broken. Footprints of an unusual design outside the store window were followed to a point about one-half mile west of the town along the highway, where they stopped. These footprints were later identified as having been made by the prison-constructed shoes of John Grissam, brother of appellant. Merchandise from the West-er field store was found in John Grissam’s house, and a .22 caliber pistol was extricated from a pond to which the investigating officers were led by the suspect. A bullet of this caliber was removed from the body of the victim. There was broken glass on the floor of the restroom of the Wester field store; pieces of glass were found embedded in the soles of John Gris-sam’s shoes.

Appellant’s written statement was received in evidence over his objection, and it contained the following account of the events which transpired that evening.

John Grissam left his brother shortly after 8:30 P.M. in downtown Gruver, after the pair had conspired to burglarize the Westerfield store. He took with him a tire tool and a .22 caliber pistol. Appellam proceeded to the home of Deputy Sherifi Walker, the only law-enforcement officer in Gruver. Concerning the purpose of this visit, these answers were elicited from appellant while he was on the witness stand:

Q: “That was your purpose in going over there to (the deputy’s house), so he couldn’t interfere down there at the burglary, isn’t that so?”
A: “I did not want him and my brother to get together; no, sir.”
Q: Well, you didn’t want him going down there to interfere with the burglarizing, did you?”
A: “No, sir.”
⅜ ⅜ ⅝ ⅜ ⅝ ⅜
Q: “And that was the only reason you went out there for, was to keep Orville Walker tied up so he couldn’t go down there and interfere with your brother?”
A: “Yes, sir.”

Appellant later picked up his brother along the highway west of Gruver and the two returned to the brother’s house after throwing the pistol in a pond.

Appellant admitted the truth of these facts when he testified in the presence of the jury.

The jury was properly instructed on the law of principals, and the evidence is sufficient to support the verdict of guilty.

Appellant contends that his conviction should be reversed because he was unlawfully arrested; because he was not taken immediately before a magistrate; and because his confession, allegedly the fruit of an illegal arrest, was erroneously admitted into evidence.

A hearing was conducted out of the presence of the jury for the purpose of determining the voluntariness of the written statement made by appellant. It was developed that the offense occurred on a Friday evening; appellant was arrested at about 2:30 P.M. on Saturday; he made a statement on Monday morning which was reduced to writing and signed in the presence of a magistrate that same morning. Testimony elicited from Sheriff J. B. Cooke, who ordered appellant’s arrest, showed that by mid-day following the night of the burglary, the investigation had focused upon appellant and his brother, and the record shows that this fact was known by some of the citizens of Gruver as well as the investigating officers. The sheriff was aware that information had been disseminated to at least one representative of the press that the sheriff was preparing to arrest two ex-convicts for the offense. He was aware that both suspects had prison records, and testified that he feared that if there were further delay in effecting appellant’s arrest, “he would probably flee the county.” Only after repeated unsuccessful attempts to contact both magistrates of that county did the sheriff order appellant’s arrest without a warrant. Following his arrest, appellant was interrogated for approximately 30 minutes then placed in jail following which all available law-enforcement officers diverted their efforts to investigation of the killing. This brief interrogation was concerned only with the location of the gun used in the killing. The officers worked around the clock without sleep Friday and Saturday and did not again question appellant until Monday morning, when he was taken to the Sheriff’s offices for interrogation. At the outset of the conversation, he was warned by County Attorney James Linn that he did not have to make a statement; that any statement he made might be used as evidence against him; and that he had a right to counsel. After brief interrogation, appellant agreed to make a statement, which was dictated to Mr. Linn’s secretary. The County Attorney testified that he gave the statutory warnings “several times” during this period. Appellant was then taken before a magistrate who again warned him of his rights, after which appellant signed the statement, which included the recitation that the statement was voluntarily given and that appellant had been warned of his rights to counsel and against self-incrimination.

Appellant testified at the hearing on the voluntariness of his written statement and stated that he was in fear of his safety when he signed the statement and that one officer had slapped and threatened him during the Saturday afternoon interrogation. This allegation was denied by that officer on the witness stand.

Under the facts presented, we find no unreasonable delay in taking appellant before a magistrate, and there appears to be no abuse of discretion in the trial judge’s admission of the statement into evidence. The fact that appellant was arrested without a warrant and was not taken forthwith before a magistrate does not, standing alone, vitiate the confession. Creswell v. State, Tex.Cr.App., 387 S.W.2d 887; Marrufo v. State, 172 Tex.Cr.R. 398, 357 S.W.2d 761. It is apparent from the record that appellant persisted in his desire to make a statement even after he was taken before a magistrate. He did not suffer from prolonged interrogation nor, according to all testimony but his own, was he treated in a manner contrary to the spirit or provisions of the Code of Criminal Procedure, 1925, the statutory law then in effect. There appears no causal connection between the making of the statement and the arrest without warrant or the failure to take appellant before a magistrate at the time of that arrest. Appellant’s contentions are therefore overruled.

An examination of appellant’s remaining informal bills of exception discloses no reversible error, and the judgment is affirmed.


author: WOODLEY, Judge.

text:
    Ex parte James RAE.
    No. 39731.
    Court of Criminal Appeals of Texas.
    June 8, 1966.

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

WOODLEY, Judge.

This is an appeal from a judgment entered in a habeas corpus proceeding.

Appellant was indicted in five cases for burglary and two for receiving and concealing stolen property of the value of over $50, and his bond was set by the court at $2500.-00 in each case.

The trial judge granted a hearing upon his petition for writ of habeas corpus and after hearing entered judgment ordering such bonds reduced to $1000.00 in each case and remanded appellant to custody. The appeal is from such order.

Bail having been substantially reduced upon the habeas corpus hearing, before complaint could be urged on appeal as to the amount fixed it was necessary that appellant show that he had made an effort to furnish bail in the reduced amount. Ex parte Swaim, 168 Tex.Cr.R. 391, 328 S.W.2d 299; Ex parte Pitcock, 167 Tex.Cr.R. 604, 322 S.W.2d 537; Ex parte Dunlap, 166 Tex.Cr.R. 55, 311 S.W.2d 413.

The judgment is affirmed.


text:
    Leroy SETTLES, Appellant, v. The STATE of Texas, Appellee.
    No. 39225.
    Court of Criminal Appeals of Texas.
    May 25, 1966.
    Porter, Madalinski & Mondin, by William M. Porter, San Antonio, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

The offense is aggravated assault; the punishment, 90 days in jail. Trial was before the court without the intervention of a jury.

All prior opinions are withdrawn, and the following substituted in lieu thereof.

The evidence produced by the State reflected that on the night in question an automobile containing the appellant, Joe Vitela, Tony Reyna, Mary Garcia, and one Cleto drove by the J and J Icehouse. Outside the icehouse were several patrons, one of whom was Armando Mata. As the automobile passed by the icehouse, a pistol shot was fired from the right side of the automobile, and Mata was struck in the stomach by a bullet.

Mary Garcia testified that Vitela had picked her up earlier in the evening, that they subsequently picked up appellant and the other men, and that the men had a bottle of liquor which they passed around, each drinking therefrom. She further testified that the men secured a pistol at appellant’s house and that they thereafter went to the home of a man known to her only as Richard, where appellant fired several shots at Richard’s home. She stated that they then went to the J and J Icehouse where she observed the appellant, who was sitting beside her in the right hand front seat, aim the pistol out the window and shoot three or four times, at which time he said that * * he was just going to shoot at everybody he saw in the streets. He didn’t give a damn.”

Appellant’s witness Reyna testified initially that the shots inquired of were fired by Cleto, however, on cross examination he admitted that he actually didn’t know who fired the shots because he was sitting on the left rear side of the car.

Appellant’s first contention relates to the failure of the trial court to sustain his plea of former jeopardy filed on the day of the trial, in which he alleged that the unsuccessful use of a charge of an assault to murder Mata in proceedings to revoke his probation constituted former jeopardy. The allegation in a motion to revoke probation that probationer has committed a particular offense when the motion is heard by the court does not constitute jeopardy and will not bar a subsequent prosecution for such offense. Especially is this true in the case at bar where the court declined to revoke probation. The court therefore properly declined to consider the plea.

Appellant challenges the conviction alleging that it was based wholly on the uncorroborated testimony of accomplices. We have examined the testimony of Mary Garcia and have concluded that she was not shown to be an accomplice and therefore, appellant’s contention in this regard is overruled.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed. Appellant’s motion for rehearing is overruled.


text:
    Joe Y. GAMEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 39457.
    Court of Criminal Appeals of Texas.
    May 18, 1966.
    Rehearing Denied June 22, 1966.

      Richard T. Brady, Jack A. Efron, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., Charles T. Conaway, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDONALD, Presiding Judge.

The offense is possession of a narcotic drug, heroin. The jury found appellant guilty of this offense and also determined that he had previously been convicted for a violation of the Uniform Narcotic Drug Act, Article 725b, Vernon’s Ann.P.C., as charged in the indictment, and punishment was assessed at 10 years confinement in the Texas Department of Corrections.

In response to a telephone call from an informer, Officer Dave Flores of the San Antonio Police Department proceeded to a designated address near which he observed appellant walking along the street. As the officer’s vehicle approached, he saw appellant throw an object into the street and under the police car. Flores apprehended appellant and recovered from the ground under the police car a number five gelatin capsule, the contents of which were subsequently analyzed and found to be heroin.

A prior conviction for possession of marijuana was proved by the state.

The evidence is sufficient to support appellant’s conviction.

Appellant, in his Amended Motion for New Trial, complained that the trial court erred in permitting the second paragraph of the indictment, alleging the prior conviction for violation of Article 725b, to be read to the jury after appellant had stipulated that he had been so previously convicted. He re-urges this point on appeal, and also contends that his stipulation precluded the state’s presentation of evidence of the prior conviction before the jury, and further that error was committed when reference was made to the prior conviction in the court’s charge.

This Court has approved the practice of permitting the accused to stipulate as to prior convictions alleged for enhancement under the provisions of Article 62 and 63, Vernon’s Ann.P.C. Crocker v. State, Tex.Cr.App., 385 S.W.2d 392; McDonald v. State, Tex.Cr.App., 385 S.W.2d 253; Pitcock v. State, Tex.Cr.App., 367 S.W.2d 864; Salinas v. State, Tex.Cr.App., 365 S.W.2d 362. The rationale is that the prior convictions are not an element of the primary offense with which the accused is charged, and that the penalty in such cases is fixed by law, thereby rendering it unnecessary for the jury to reach a verdict on any issue other than that of guilt or innocence as to the primary offense. This procedure has not been approved for cases involving enhancement under Article 64, Vernon’s Ann. P.C., where the jury has a choice in determining the punishment to be assessed. Spencer v. State, Tex.Cr.App., 389 S.W.2d 304; Wright v. State, Tex.Cr.App., 364 S.W.2d 384.

To secure conviction as a subsequent offender under Section 23, Article 725b, it is necessary that the state allege and prove that the accused violated a provision of the Uniform Narcotic Drug Act after he had been convicted for a prior violation thereof, Gomez v. State, 126 Tex.Cr.R. 30, 280 S.W.2d 278; and the prior conviction is an integral part of the offense itself and not an allegation such as would merely enhance the punishment under Articles 62 and 63. Parasco v. State, 165 Tex.Cr.R. 547, 309 S.W.2d 465. For a subsequent conviction, the jury assesses punishment at “confinement in the penitentiary for life or for any term of years not less than ten * * Section 23(1), Article 725b. For these reasons, the jury must pass on the issue of whether or not an accused charged as a subsequent offender has been previously convicted of a violation of the statute, and the trial judge was not in error in permitting the state to so allege and prove.

We have examined appellant’s remaining informal bills of exception and find no reversible error.

The judgment is affirmed.


text:
    Irvin William BARROW, Appellant, v. The STATE of Texas, Appellee.
    No. 39701.
    Court of Criminal Appeals of Texas.
    June 8, 1966.

      No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

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

Trial was begun on November 17, and judgment was rendered on November 18, 1965. Notice of appeal was given on December 31, 1965. The prior convictions were stipulated by appellant and his counsel.

Witness Lloyd, a trailer repairman, testified that he was preparing to take a bath in his trailer home on the night in question, when he heard the outcry of his eighteen year old daughter, Glenda. He stated that he put on his houseshoes and a pair of pants and went to the front door of the trailer; at this time, he observed his daughter standing between the appellant, who had a pistol in his hand, and himself. The witness Lloyd stated that appellant made a statement to the effect that “No son of a bitch will tell me to stay away from his house”, whereupon he, the appellant, fired a shot. At this juncture, the witness headed for the appellant trying to get between Glenda and him, and appellant fired a shot at him before they both fell to the ground, where, after a struggle, Lloyd was able to secure the pistol from appellant. The witness stated that as a result of the encounter, he suffered a gunshot wound in the stomach.

It was developed that Lloyd had previously asked the appellant not to come around his trailer home or his two daughters.

Glenda Lloyd testified to substantially the same facts and added that a shot or shots were fired during the struggle between her father and appellant.

Witness Richardson, who had observed part of the altercation from across the street, testified that he heard a shot and then saw a bare chested man come out of the trailer and go toward the flash of a gun which was being fired in the bare chested man’s direction.

Officer Hays testified that he reported to the scene of the shooting and was given a .38 caliber pistol by witness Lloyd.

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

No formal bills of exception appear in the record. The informal bills have been reviewed and reflect no reversible error.

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


author: BELCHER, Commissioner. MORRISON, Judge.

text:
    Billy HILL, Appellant, v. The STATE of Texas, Appellee.
    No. 39400.
    Court of Criminal Appeals of Texas.
    March 9, 1966.
    Rehearing Denied May 18, 1966.
    Second Motion for Rehearing Denied June 22, 1966.

      Ashton & Smith, by Robert O. Smith, Austin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

The conviction is for burglary with a prior conviction for burglary alleged for enhancement; the punishment of twelve years was assessed by the court in accordance with the law.

The testimony reveals that the building of the R. C. Foster Mercantile Company was on May 5, 1965, forcibly entered through a door without the consent of R. C. Foster who then had possession of the building; that about $48 in money was taken from said building without the consent of R. C. Foster; and that the appellant at the time was and had been an outside salesman of the company.

Officer Kosser testified that after observing two men using a telephone in a booth in front of a store with their car parked in a dark place by the store he stopped. These men were the appellant and William Thorp. While talking with them Kosser noticed that the rear seat of appellant’s car was full of various clothing. The appellant explained that he was a salesman for Foster, and the appellant opened the door and showed Kosser his consignment records. From the outside of the car Kosser saw an axe on the floorboard between the rear and front seat. As they left, Kosser made note of the license number.

On passing Fosters about 4 a. mu, May S, Officer Vandermast saw a light through a door, and on investigating found that the door had been forcibly entered. The door facing and door were badly damaged which appeared to have been done with an axe. There were tire marks in front of the door and it appeared that a vehicle had been used to push the door open. When Foster arrived he stated that merchandise was missing and also about $45 in money.

During the investigation of the Foster burglary, Officer Wisian, upon getting Kosser’s report, went to the appellant. The appellant voluntarily agreed to go to Fosters for an inventory check of the merchandise he had in the car with that consigned to him. During the inventory at Fosters, Wisian saw an axe in appellant’s car, asked to see it and appellant handed it to him. Officer Wisian testified that the front door was badly damaged and it appeared to have been done with an axe; that he took the door, pieces of wood and the axe to the laboratory of the Department of Public Safety; that he compared the tread design on the tires on appellant’s car with the tire marks on the concrete apron in front of Foster’s store, and expressed the opinion that they were the same. The evidence further revealed that the paint on the wood and the paint on the axe were of the same color and type and could have come from the same source.

Officer Wisian testified that he gave the appellant the warning in accordance with the statute in effect on May 5, 1965, and also informed him of his right to consult counsel and offered him the right to do so, and the appellant made to him the following written statement which reads in part as follows:.

“My name is Billy Hill. * * * I met William Thorp at approximately 4:00 PM on 5-4-65 and we * * * rode around in my 1957 Mercury until sometime around 2:00 AM on 5-5-65, at which time we went to the R. C. Foster Mercantile Co. at 1802 E. 6th St. We went to this business place for the purpose of burglarizing it. As I drove up in front of the Foster Co. I tried to stop the car but the breaks did not hold and I ran into the front door. I backed away from the door and William Thorp took a ax from the back seat of the car and went to the front door of this building and started hitting it until he got it to open. Then we both went inside. I then went to the office in the front and took a blue plastic bag (the type used for bank deposits) from a filing cabinet. We then got into my Mercury and left. As we were driving around we divided the money that was in this plastic bag. My part of this money was between $13 and $15.”

After a hearing in the absence of the jury on the issue of the voluntary nature of appellant’s written statement, the trial court found that it was freely and voluntarily made.

The appellant, his attorney and the state’s attorney in the absence of the jury stipulated that he was the same person previously convicted of burglary in the prior conviction alleged. Only the issue of appellant’s guilt of the primary offense was submitted to the jury.

The appellant did not testify before the jury, but offered proof that the complaint charging him with burglary was filed in justice court May 6, 1965, which was Thursday, and that said court and two other justice courts in the city were usually open from 8 a. m., to 5 p. m., on weekdays.

The evidence is sufficient to support the conviction.

Appellant contends that the trial court erred in requiring him to state under oath whether his confession was true while he was testifying in the absence of the jury for the limited purpose of showing the facts surrounding the voluntariness of the confession.

This matter arose as follows:

State’s Attorney:
“Q Billy (appellant), is that your signature?
“A Yes, sir.
“Q This is the confession that you made?
“A It is.
“Q And it is correct?
Appellant’s Attorney: We object to that. I think it is not proper inquiry under the Lopez case.
The Court: I will overrule the objection.
Appellant’s Attorney: Note our exception.
“Q Is that statement correct?
“A Yes, sir.”

The objection is too general and indefinite and fails to specify any ground which the trial court could intelligently consider in passing upon the admissibility of the evidence and brings nothing forward for review.

Error is urged because of the refusal of the trial court to submit to the jury the issue of whether the appellant’s illegal detention was the cause of or resulted in him making the confession.

The appellant did not testify before the jury.

Upon the request of Officer Wisian about 8 or 8:30 a. m., the appellant voluntarily went to Fosters to check his inventory of the clothing consigned to him. After about forty minutes at Fosters, the appellant consented to go to the police station. After examining the paint on the axe which appellant had voluntarily handed to Wisian along with the comparison of the tire marks, the appellant was arrested about 10:30 or 11 a. m. At this time appellant consented to take a lie detector test, and a date was made for the test at 1:30 p. m. Following the test the appellant was returned to the police station where he was given the statutory warning pertaining to the making of a written statement and also told of his right to consult counsel which is included in the written warning and offered time to do so, and at 4:41 p. m., he made a written statement as herein shown to Officer Wisian.

There is no evidence of any causal connection between the detention of the appellant and the making of the written statement. The detention bears only upon the fact question of the voluntariness of the written statement.

The court charged the jury that if they had a reasonable doubt as to whether the appellant freely and voluntarily made the confession, without compulsion or persuasion, not to consider it for any purpose.

The refusal of the court to charge the jury as requested was not error.

By formal bill of exception it is contended that after appellant requested that the state be required to make an opening statement, the court refused to require the state to make a complete opening statement to the jury of the proof it would introduce, and that the statement made did not sufficiently apprise the appellant of the evidence the state would offer.

In support of his bill the appellant contends that the failure to include the pieces of painted wood and an axe in his opening statement unfairly surprised the appellant of the evidence the state would offer.

While at the Foster building checking his inventory against the consignment, the appellant voluntarily handed Officer Wisian the axe. The nature and manner of the force used and the damage done to the door in effecting entry of the building was obviously visible to the appellant during the time he was at the building. No injury to the appellant is disclosed from the record, and in the absence of injury, the failure to include the objects named among other facts in the opening statement is not ground for reversal. Art. 642, C.C.P., Note 21-22.

Complaint is made of the admission in evidence of the axe over appellant’s objection that it was seized while he was under illegal arrest.

The evidence reveals that the appellant voluntarily agreed to go to Fosters for a check on the merchandise he had in his car with that consigned to him. During the process of checking the material, Officer Wisian, from the outside of appellant’s car which had the door open, saw an axe in the car. Wisian asked to see the axe and the appellant handed it to him. The admission of the axe in evidence was not error.

It is contended that the enhancement paragraph alleging the prior conviction is fatally defective because the prior conviction was alleged to have been in a non-existent court.

The enhancement paragraph alleged that the prior conviction was “in the District Court of Travis County, Texas, in Cause No. 31,350.”

In the absence of the jury and before the indictment was read to the jury, the appellant in person and by his attorney agreed and stipulated that he was the person duly and legally convicted of burglary alleged in the enhancement paragraph, and which had become final prior to the commission of the primary offense alleged.

The enhancement paragraph was not read to the jury, and no evidence was offered to support it.

This contention, under the record, presents no error.

The judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

Rehearing denied.

DISSENTING OPINION

MORRISON, Judge.

My Brethren overrule appellant’s motion for rehearing without' written opinion. After further study of this record I cannot bring myself to join in such action. In our original opinion we held the objection to be too general and indefinite. I have now concluded that since the Lopez case is a recent landmark case in our criminal jurisprudence relating to confessions, the objection of appellant’s counsel was sufficient to inform the trial court of his reasons for objecting. See Lopez v. State, Tex.Cr.App., 384 S.W.2d 345. The error is very serious in this case, because, as I see it, the only logical construction of the prosecutor’s question was whether the confession spoke the truth. It would be placing a severe burden upon the trial court to call upon him to rule a confession inadmissible as a matter of law after the accused had testified that the confession was true.

I respectfully dissent.


author: WOODLEY, Judge. MORRISON, Judge

text:
    Lonnie Lee MOORE, Appellant, v. The STATE of Texas, Appellee.
    No. 39266.
    Court of Criminal Appeals of Texas.
    May 18, 1966.
    Rehearing Denied June 22,1966.
    Bill Wardlaw Brown, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., John H. Chambers, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION TO REINSTATE THE APPEAL

WOODLEY, Judge.

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

The offense is drunk driving; the punishment, 3 days in jail and a fine of $50.

Trial was before the court upon a plea of not guilty.

The undisputed and stipulated evidence shows that appellant drove a motor vehicle while he was intoxicated and caused it to strike an automobile which was parked on the parking lot of Chenault’s Drive-In, located in Ft. Worth. Neither the witness who was sitting in the car that was struck nor any other witness saw the motor vehicle driven by appellant operating at any other place than the parking lot which was the property of and under the control of the owner of the drive-in.

Appellant contends that the parking lot “is not a public road or highway, even though the lot is open to the public” and that there was no evidence offered showing that appellant operated his motor vehicle upon a public road or highway.

The agreed evidence reflects that the parking lot is located immediately adjacent to State Highway No. 199 and a public highway known as Roberts Cut-off. The lot “is open to the public generally and is open to use of the public generally, and automobiles and other motor vehicles operated by the public go on and come from said parking lot at all times of the day and night. The surface of the lot is paved with an asphalt surface and there are areas marked off on said surface indicating spaces for parking of motor vehicles. There is a space for automobiles being driven upon the parking lot to travel. This space for travel could also be described as a pathway. It it also possible for automobiles traveling on said parking lot to pass from one of the adjacent roadways to the other * * * the parking lot is totally open and unobstructed on its west and north sides, those being the sides adjacent to Roberts Cut-off and State Highway 199. * * * ”

“Automobiles and trucks are driven and operated by members of the public on the parking lot and no one is excluded from driving on such lot.”

“The owner of the drive-in allows the public to use it (the parking lot) for parking.”

“The parking lot is sometimes used for traveling from one of the adjacent roadways to the other.”

This court has defined a “public road or highway” as used in Art. 802 Vernon’s Ann.P.C. as a roadway that is open for the use, or used by the public for traffic. In Nichols v. State, 120 Tex.Cr.R. 219, 49 S.W.2d 783, we said:

“The object of said statute is to protect the general public, while using ways which are open to the public, from dangers incident to the operation thereon of automobiles by those who have made themselves unfit for such operation by the use of intoxicating liquor. * * * There must of necessity be legislative authority to enact laws to protect the people in their exercise of all public rights, and it would be intolerable to think that when investigating the criminal liability of the drunken driver of an automobile on a roadway, more or greater proof would be required to establish the character of the road, than that it was or is open for the use, or used by the public for traffic.”

In Tracey v. State, 171 Tex.Cr.R. 408, 350 S.W.2d 563, we applied such definition and upheld a conviction for drunk driving on a boluevard inside Dyess Air Force Base, a military reservation, open for public use during certain hours only.

Also the definition was applied in Salazar v. State, 161 Tex.Cr.R. 98, 275 S.W.2d 112, to a toll bridge; McCreary v. State, 165 Tex.Cr.R. 436, 307 S.W.2d 948, to an unfinished freeway; Brown v. State, 163 Tex.Cr.R. 170, 289 S.W.2d 942, to a public beach; and in Thurman v. State, 167 Tex.Cr.R. 21, 317 S.W.2d 737, to a highway bypass.

We conclude that the parking area where appellant drove his automobile while intoxicated was a public road or highway within the meaning of Art. 802 V.A.P.C.

The judgment is affirmed.

MORRISON, Judge

(dissenting).

The majority hang their hat on some language contained in an opinion of Judge Lat-timore in Nichols v. State, 120 Tex.Cr.R. 219, 49 S.W.2d 783.

Judge Hawkins in an exhaustive opinion on rehearing in Wood v. State, 119 Tex.Cr.R. 252, 45 S.W.2d 599, set out the standards of proof necessary to show the public nature of a road in a driving while intoxicated case. The facts before us here fall far short of the standards set in Wood.

The definition of a public road or highway found in Black’s Law Dictionary is: “Its prime essentials are the right of common enjoyment on the one hand and the duty of public maintenance on the other.” This last prime essential is entirely missing in the case at bar.

I respectfully dissent to the affirmance of this conviction.


author: McDONALD, Presiding Judge. McDONALD, Presiding Judge.

text:
    Ex parte Charles William ALEXANDER.
    No. 39374.
    Court of Criminal Appeals of Texas.
    March 2, 1966.
    On Motion to Reinstate Appeal June 8, 1966.
    Brown & Brown, by Wm. V. Brown, Jr., Texarkana, for appellant.
    Leon B. Douglas, State’s Atty„ Austin, for the State.
   OPINION

McDONALD, Presiding Judge.

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

The only indication in the record that appellant gave notice of appeal appears in the statement of facts, where appellant’s counsel stated, “ * * * I would like to except to the Court’s ruling and give notice of appeal to the Court of Criminal Appeals at Austin, Texas, Your Honor.”

It does not appear that notice of appeal has been entered in the minutes of the trial court, therefore the jurisdictional requirements of Article 827, Vernon’s Ann.C.C.P., applicable here, have not been satisfied, and this court is without authority to enter any order other than dismissal of the appeal. Pounds v. State, 169 Tex.Cr.R. 309, 334 S.W.2d 191.

Accordingly, the appeal is dismissed.

OPINION ON APPELLANT’S MOTION TO REINSTATE APPEAL

McDONALD, Presiding Judge.

By order entered nunc pro tunc by the trial court, the record now shows that notice of appeal was given in open court and entered of record in the minutes of the trial court.

In his application for writ of habeas corpus, appellant contended that he was illegally confined and restrained of his liberty at the county jail in Hopkins County, Texas, by Delphia Leewright, Sheriff of that county, pending extradition.

It now appears that Sheriff Leewright, after dismissal of appellant’s appeal by this Court on March 2, 1966, and before the notice of appeal was entered and motion to reinstate was filed, delivered appellant into the custody of authorities from the State of California to be extradited, and that appellant is no longer held in custody in this state.

The records of this Court also reveal that appellant’s conviction for the offense of fondling, appealed from the District Court of Delta County, was affirmed in Alexander v. State, Tex.Cr.App., 402 S.W.2d 170, and mandate was issued in that cause on May 20, 1966.

Motion to reinstate the appeal is overruled.


text:
    James Monroe ELDER (alias Baby Ray Elder), Appellant, v. The STATE of Texas, Appellee.
    No. 39620.
    Court of Criminal Appeals of Texas.
    May 18, 1966.
    Rehearing Denied June 22, 1966.
    J. Kearney Brim, Sulphur Springs, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

The conviction is for the unlawful transportation of intoxicating liquor in a dry area, with two prior convictions for misdemeanor offenses of like character alleged for enhancement; the punishment, six months in jail and a fine of $600.

The state’s testimony shows that on the day in question appellant was observed driving his automobile on state highway #66 through Concord in Hunt County. Constable Cecil Thomas pursued appellant and stopped him because it appeared that he was driving at an excessive rate of speed. Within a minute, Liquor Board inspector T. L. Baker and deputy sheriff Dewey Watson drove up to where the constable and appellant were standing. Both officers had received information that appellant would be traveling on the highway with some whisky.

Inspector Baker testified that when he arrived upon the scene he first asked appellant if he had any whisky in the car and appellant stated that he did not. The officer stated:

“Then he asked me if I wanted to look in the car, and I said I did, and he opened the trunk of the car and we proceeded to search the car.”

It was shown by the officers’ testimony that, in the search, eight one-half pints of Tom Moore whisky were found in the air breather on top of the carburetor of appellant’s automobile and three half-pints of the same brand of whisky were found in the windshield washer container of the car.

The eleven half-pints of whisky were introduced in evidence as state’s exhibits numbers one through eleven.

It was stipulated that Hunt County was a dry area and also stipulated that appellant had been twice before finally convicted of the misdemeanor offenses of unlawfully transporting liquor in a dry area alleged in the state’s pleadings for enhancement of the penalty.

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

The evidence is sufficient to sustain the judgment of conviction.

Three points of error are urged by appellant on appeal, which present the contention that the court erred in admitting the whisky in evidence because it was obtained as the result of illegal search and seizure.

Appellant is in no position to complain of the search, as the state’s testimony shows that he gave his consent thereto. Ellithorpe v. State, 167 Tex.Cr.R. 266, 320 S.W.2d 350; Merwin v. State, 172 Tex.Cr.R. 244, 355 S.W.2d 721. No error is presented.

The contention that the court erred in refusing to require the witness Baker to disclose the name of his informer is without merit. No objection was made by appellant to the court’s ruling. Further, it is held by this court that an officer is not required to reveal the name of his informer. Sikes v. State, 169 Tex.Cr.R. 443, 334 S.W.2d 440.

The judgment is affirmed.

Opinion approved by the court.


text:
    James Henton ANDREWS, Appellant, v. The STATE of Texas, Appellee.
    No. 39615.
    Court of Criminal Appeals of Texas.
    May 11, 1966.
    Rehearing Denied June 22, 1966.

      Chester A. Oehler, Dallas, for appellant.
    Henry Wade, Dist. Atty., Scott Bradley, Douglas D. Mulder, and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is drunk driving; the punishment, one week in jail and a fine of $500.

The evidence reflected by the statement of facts reveals that on the date alleged in the information two cars were involved in an accident on Commerce Street in Dallas. One of the cars was driven by Paul Fred Tarno. It was struck from the rear by a 1962 Ford Fairlane owned by appellant, who was the only occupant of said car.

Appellant remained at the scene until officers arrived, interrogated and observed him and concluded that he was intoxicated.

A sample of blood taken from appellant was analyzed and Dr. Morton F. Mason testified that the result of the analysis showed that the alcohol concentration present in the specimen was “Zero point one nine five (0.195%) percent.”

Dr. Mason expressed the opinion that any individual attaining a concentration of alcohol in his blood as great as one-tenth percent (0.10) or higher will be under the influence of alcohol, and that a person with 0.195 percent would not have the normal use of his mental and physical faculties.

The evidence is sufficient to sustain the jury’s verdict.

In one portion of the judgment the defendant is referred to as James Newton Andrews, whereas elsewhere in the record, including the complaint and information, he is referred to as James Henton Andrews.

The judgment is reformed to conform to the information and to show the defendant’s name as James Henton Andrews.

Appellant’s principal ground for reversal is presented by his formal Bill of Exception No. One, which relates to the sustaining of a written motion by the state that the court instruct the defendant and his counsel to refrain from mentioning, referring or alluding to a policy of the District Attorney’s Office not to prosecute driving while intoxicated cases where a scientific test determines the percentage of alcohol in the blood to be less than 0.15 percent, “without making known to the court the admissibility and rewrfence of the same.”

The record shows no proceeding in the presence of the jury regarding the motion or the ruling of the court, and there is no showing in the record that appellant was injured or prejudiced by the granting of the state’s motion by endorsement thereon.

The judgment is affirmed.


author: McDONALD, Presiding Judge. BELCHER, Commissioner.

text:
    Preston Perry McSWAIN, Appellant, v. The STATE of Texas, Appellee.
    No. 39436.
    Court of Criminal Appeals of Texas.
    March 23, 1966.
    Rehearing Denied May 18, 1966.
    Second Motion for Rehearing Denied June 22, 1966.
    Howard O. Lake, Houston, John W. O’Dowd (on rehearing only), Houston, for appellant.
    Carol S. Vance, Dist. Atty., Ted Hirtz and Frank Puckett, Jr.', Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDONALD, Presiding Judge.

The offense is burglary; the punishment, enhanced by proof of two prior convictions for felonies less than capital, life imprisonment.

Police Officer J. C. Goff testified that at the time of the offense his duties were those of security guard at an apartment complex located in Harris County, Texas, and that he lived at this same location. While off duty, and as he sat reading the newspaper on the patio of his apartment, he observed appellant and a confederate approach another apartment in the complex and knock on the door several times. When no one answered, appellant produced a screwdriver from underneath his shirt, placed it against the door near the lock, and struck it until the door opened. The officer picked up his identification and pistol, then returned to his vantage point in time to see appellant and his companion coming out of the apartment carrying a television set. Officer Goff produced his identification and arrested the pair.

Elizabeth Cain testified that she had care, custody, and control of the apartment which was broken into and that she had locked the door when she left for work that morning. She testified that she had not given appellant or anyone else permission to enter her apartment or to take her television set.

Appellant testified in his own behalf, and he admitted entering the apartment but stated that he was under the impression that his companion owned the television set and occupied the premises. He testified that his companion was the one who opened the door to the apartment.

The jury resolved the facts against appellant, and the evidence is sufficient to sustain his conviction.

The only contention urged in appellant’s brief is that the trial court erred in admitting into evidence the records of prior convictions alleged for enhancement purposes. The prior convictions were proved by introducing certified records from the Texas Department of Corrections, and identity was established through the testimony of a fingerprint expert who testified that the fingerprints in the records of prior convictions matched the fingerprints of appellant.

The record shows that appellant was convicted in Cause No. 70,535, for felony theft on December 17, 1953; that after this conviction became final appellant, in January, 1957, committed the offense of being an habitual user of narcotics; that he was convicted for this offense on June 21, 1957, in Cause No. 80,577, and that the primary offense was committed on October 16, 1964.

Appellant contends that the judgment and sentence in Cause No. 70,535, are void because they are neither definite nor certain as to punishment assessed. He then reasons that since this prior conviction is void, the other conviction, which was for a narcotics violation, cannot be used for enhancement under Article 62, Vernon’s Ann.P.C. because it is not a conviction for an offense of the same nature as the primary offense of burglary.

Although it appears that error was not properly preserved, we note that appellant’s felony theft conviction in Cause No. 70,535, resulted from a trial without a jury on a plea of guilty. The judgment reads that, “the Court finds the defendant guilty of Theft, a felony, and assesses the punishment at 5 years in the State Penitentiary.” The sentence accurately recites the pronouncement of the judgment then states that appellant, “shall be confined in said Penitentiary for not less than 2 nor more than 5 years * *

The judgment fixes a penalty which is definite and certain. The sentence thereafter pronounced embodies application of the indeterminate sentence statute. Article 775, Vernon’s Ann.C.C.P., then in effect; Ex Parte Traxler, 147 Tex.Cr.R. 661, 184 S.W.2d 286.

No error was committed in the admission into evidence of the proof of prior convictions, and a review of appellant’s other informal bills of exception discloses no error.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

BELCHER, Commissioner.

It is now insisted that appellant’s prior conviction for the offense designated in the judgment and sentence as “Habitual user of narcotic drugs” which was used for enhancement is void.

He relies on the holding of this court that the statute (Art. 725c, Vernon’s Ann.P.C.) making it an offense for a person to be “addicted to the use of narcotic drugs” was invalid, and a conviction thereunder was void. Ex Parte Rogers, Tex.Cr.App., 366 S.W.2d 559. He urges that “Habitual user of narcotic drugs” is synonymous with “addicted to the use of narcotic drugs,” and that both import a “status” or “condition” and not an act.

The applicable portion of Art. 725c, V.A. P.C., reads as follows:

“It shall be unlawful for any person to habitually use narcotic drugs, be addicted to the use of narcotic drugs, * * *.”

The portion of the statute containing the words “habitually use” is based upon the act of using. Without an “act” a person could not “habitually use” narcotic drugs. To be addicted to the use of narcotic drugs is a status or condition.

The motion for rehearing is overruled.

Opinion approved by the Court.


author: MORRISON, Judge. MORRISON, Judge

text:
    Joe Givos ACOSTA, Appellant, v. The STATE of Texas, Appellee.
    No. 39454.
    Court of Criminal Appeals of Texas.
    March 23, 1966.
    Rehearing Denied May 25, 1966.
    Second Motion for Rehearing Denied June 22, 1966.

      Clyde W. Woody, Marian S. Rosen, Fred H. Dailey, Jr., John P. Farra, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Ted Hirtz and F. M. Stover, Asst. Dist. Attys., Houston, and Leon B. Dougas, State’s Atty., Austin, for the State!
   OPINION

MORRISON, Judge.

The offense is the possession of heroin with a prior conviction for possession of heroin alleged for enhancement; the punishment, 30 years.

The evidence introduced before the jury reflects that police officers of the Narcotic Division of the Houston Police, together with a representative of the Department of Public Safety, armed with a search warrant, arrived at appellant’s home, intercepted him as he and his family were backing his automobile out his driveway, and exhibited the warrant to appellant and his wife. The family re-entered the house where a search was conducted, and, finally, under a flower which appeared to have been recently transplanted, a jar was found which was shown to contain over 100 grams of heroin in two rubber containers. The chain of custody was shown and the substance was identified by expert testimony to be 48 to 50 percent pure heroin. The prior conviction was established, and appellant did not testify or offer any evidence in his own behalf.

Since almost all the matters complained about by appellant in an exhaustive brief and argument occurred in the absence of the jury, they will be discussed in the order presented.

Appellant first contends that the heroin seized was inadmissible because the probable cause recited in the affidavit for the search warrant was insufficient under the holdings of the Supreme Court of the United States in a number of cases including Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503; Etchieson v. Texas, 378 U.S. 589, 84 S.Ct. 1932, 12 L.Ed.2d 1041; and Barnes v. Texas, 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818.

The affidavit in Aguilar, supra, recited that the affiants “have received reliable information from a credible person and do believe that heroin * * * and other narcotics and narcotic paraphernalia are being kept at * * * (petitioner’s) premises for the purpose of sale and use contrary to the provisions of the law.” The Court held that the above did not contain an affirmative allegation that the informant or the affiants spoke with personal knowledge.

The affiant in Giordenello v. United States, supra, recited:

“The undersigned complainant [Finley] being duly sworn states: That on or about January 26, 1956, at Houston, Texas in the Southern District of Texas, Veto Giordenello did receive, conceal, etc., narcotic drugs, to-wit: heroin hydrochloride with knowledge of unlawful importation; in violation of Section 174, Title 21, United States Code.
And the complainant further states that he believes that-are material witnesses in relation to this charge.”

The Court held that the above did not contain an affirmative allegation that af-fiant spoke with personal knowledge and failed to indicate any source of complainant’s belief.

The affidavit in Etchieson v. State, Tex.Cr.App., 372 S.W.2d 690, recited:

“My belief as aforesaid is based on the following facts:
‘(A) I have been informed of the existence of the foregoing set out facts by reliable, credible and trustworthy citizen of Dallas, Dallas County, Texas,
‘(B) and further' from a source that we do not wish to divulge.’ ”

In a Per Curiam opinion Etchieson was reversed.

The affidavit in Barnes v. State, Tex.Cr.App., 390 S.W.2d 266, in which the writer dissented, and which was reversed by the Supreme Court of the United States in Barnes v. Texas, supra, upon their holding that the warrant for the arrest of Mrs. Barnes’ husband contained no affirmative allegations that the affiant spoke with personal knowledge, did not indicate any source of complainant’s belief, nor set forth any other sufficient basis upon which the finding of probable cause could be made.

We will now set forth the affidavit before us in the case at bar:

“On the 14th day of May, 1965, affiants received reliable information from a credible person that heroin was being possessed by Joe Givos Acosta, at 7515 Force Street, Houston, Harris County, Texas. Although I do not desire to name this person, on about four prior occasions he has given information to me concerning narcotics being possessed by certain individuals, and on every occasion his information has proven to be true. Based upon the information he gave to me, affiants on the morning of' the 14th day of May, 1965, set up surveillance of the house located at 7515 Force Street, and from approximately 7:00 a. m. to 10:00 a. m. of that day we observed several persons whom we know to be users of narcotics, enter the house, remain for approximately five minutes each, and then leave.”

Because of the late filing of the officer’s return, the court heard evidence on the issue of probable cause in the absence of the jury, and, in the course thereof, it was developed that two of the “several people” whom the officers observed to enter appellant’s house, remain approximately five minutes and then leave were Victor Valdez and Martin Damian, each of whom had narcotic charges pending against them at the time of appellant’s trial and each of whom were known by the officers to be narcotic addicts. We hold that the affidavit in the instant case does set forth a sufficient basis upon which a finding of probable cause could be made. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684. The cases cited by appellant do not support his contention that the trial court erred in refusing to grant his motion to suppress evidence seized under the search warrant.

Appellant next contends that the court erred in not requiring the affiants to identify the informer. He admits that he did not request the court to direct the witness to name his informer, but contends that he should have been permitted to question the affiant as to the age, sex and past criminal record of the informer in order that the court might intelligently pass upon the question of the existence of probable cause. This is the same position taken by appellant’s counsel in Thayer v. State, Tex.Cr.App., 397 S.W.2d 236, wherein we adhered to our prior holding in Artell v. State, Tex.Cr.App., 372 S.W.2d 944.

Appellant cites a number of cases from other jurisdictions, and we hold, as we have in the past, that it is only those cases which were described by the Supreme Court of the United States in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, that the name of the informer should be disclosed. That is, where the informer “had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly” committed the act. It would appear from the holding of the opinion of the Supreme Court of the United States in Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, that the Court does not intend to extend the rule announced in Roviaro v. United States, supra.

Appellant next contends that the court erred in declining to sustain his motion to suppress the evidence acquired by the execution of the search warrant because the warrant was not promptly returned by the officer executing the same to the magistrate who issued it as provided by Sec. 16 of Article 725b, Vernon’s Ann. P.C., and Article 324, Vernon’s Ann.C. C.P. The officer swore unequivocally that he made his return on the back of the warrant on the day it was executed, but that through some error it was not delivered to the magistrate until the day this trial began.

Recently in Daltwas v. State, Tex.Cr.App., 375 S.W.2d 732, we held that the failure of the officers to make a return on the search warrant or deliver to appellant an itemized copy of the return, in the absence of a showing of injury, reveals no error. This record is silent as to any demand made by this appellant or his counsel that they might see the officer’s return prior to trial. Hence, no injury is shown.

He next contends that the trial court did not conduct his hearing as to the voluntary nature of the confession in accordance with the mandate of this Court in Lopez v. State, Tex.Cr.App., 384 S.W.2d 345, and of the Supreme Court of the United States in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. In Lopez v. State, supra, we said:

“In new trials arising hereunder and in future trials in this state where there is a fair question of voluntariness of a confession of the defendant, the trial judge shall grant to the defendant the opportunity to object to the use of said confession; shall grant a fair hearing before the Court on the issue of volun-tariness, and from all of the evidence and without regard to the truth or falsity of the confession, shall make a clear cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the volun-tariness issue may depend.”

In the absence of the jury the prudent trial judge allowed appellant’s counsel full latitude to explore the practice of the issuance of search warrants in Harris County and what occurred in this case. Appellant testified that he was hit and kicked by the officers while in his home, but his wife, who was called, did not support him in this claim. He stated that he was threatened with the loss of his children and that his wife and her parents, who resided with him, would be jailed unless he promised to make a statement when he arrived at the police station, and yet he chose not to make an issue of fact before the jury, and no evidence of the involuntary nature of the confession was submitted before them. In his confession, which was made and signed within an hour after appellant’s arrival at the police station after appellant had been fully warned and advised of his right to counsel and which the court found to have been voluntarily made, he recited that he had gone to San Antonio on the Wednesday preceding his arrest and purchased $2,000 worth of heroin. It should be noted that in the absence of the jury one of the arresting officers, while being questioned by appellant’s counsel as to what transpired in appellant’s back yard immediately after the heroin was discovered, was asked and answered the following:

“Q. Did you ask him any questions concerning the identity of the individual who owned the heroin?
A. He stated that it was his before anybody asked him anything in regard to it. He was shocked as to how it was found.”

Prior to the asking of this question, the court had, in the presence of the jury, sustained appellant’s objection to anything appellant may have said at the time the heroin was discovered. His claim that appellant’s family was held in custody for more than an hour is without foundation. It would be strange police practice to allow members of a suspect’s family to wander about the house while a search was being conducted therein. His claim that the court erred in permitting the prosecutor to question appellant as to the truthfulness of his statement, to which question the appellant answered, “The things in the statement are not true”, need not be considered because even if inadmissible, the jury was not present, and this Court has always held that the court is presumed not to have considered inadmissible evidence.

Appellant next contends that the court erred in permitting the chemist when recalled as a witness to testify how many capsules the bulk heroin found in appellant’s possession would fill. The chemist had already testified that the jar contained 111.2 grams of 49 percent pure heroin. We have concluded that it was not reversible error to permit the State to translate this testimony into terms understandable to the jury.

We overrule appellant’s contention that the records of the Texas Department of Correction concerning appellant’s prior conviction were inadmissible as hearsay. Broussard v. State, Tex.Cr.App., 363 S.W.2d 143.

We also overrule his contention that the court erred in overruling his motion to quash the indictment because the same failed to inform him if the State intended to proceed against him under Article 725b, Sec. 23(1), V.A.P.C. or Article 62, V.A.P.C. This Court has held that Article 725b is a special statute that contains its own cumulation of punishment provision for a subsequent conviction for its violation.

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

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge

(dissenting).

My Brethren overrule appellant’s motion for rehearing, but I cannot bring myself to join them in such action. This is so because after further study, I have become convinced that the following portion of the opinion which I prepared originally is entirely erroneous, to-wit: “His claim that the court erred in permitting the prosecutor to question appellant as to the truthfulness of his statement, to which question the appellant answered, ‘The things in the statement are not- true’, need not be considered because even if inadmissible, the jury was not present, and this Court has always held that the court is presumed not to have considered inadmissible evidence.” I would be a poor judge indeed if I was not always ready to admit that I had erred. I overlooked the fact that appellant was questioned repeatedly, over strenuous objections, about the truth or falsity of certain admissions contained in the confession; for example, he was asked, “You told Officer Dunlap the truth when you gave him the statement and the things that went into the statement are the things that you told Officer Dunlap?”

It is now apparent that the question here presented may not be disposed of, as I did originally, by reference to Texas procedure because it has reached Federal Constitutional dimensions. My conviction arises from a re-examination of Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760, and cases which followed the holding of the Supreme Court in that case. In Rogers, supra, the Supreme Court of the United States was reviewing a State court conviction where the trial court in the absence of the jury on a hearing as to the voluntary nature of the confession had considered the truth or falsity of the confession as one element of its reliability authorizing its introduction. The Court in reversing the State court conviction said, “Any consideration of this ‘reliability’ element was constitutionally precluded, precisely because the force which it carried with the trial judge cannot be known.” Rogers, supra, was later cited as authority on this question in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; see also 1 A.L.R.3d 1205. This latter case was the basis for the reversal of our own decision in Lopez v. State, 366 S.W.2d 587.

On remand from the Supreme Court of the United States, Lopez v. State, 384 S.W.2d 345, we incorporated the Jackson v. Denno rule and said:

“In new trials arising hereunder and in future trials in this state where there is a fair question of voluntariness of a confession of the defendant, the trial judge shall grant to the defendant the opportunity to object to the use of said confession; shall grant a fair hearing before the Court on the issue of volun-tariness, and from all of the evidence and without regard to the truth or falsity of the confession, shall make a clear cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend. Upon request, such hearing shall be held and the court’s ruling made in the absence of the jury. Unless the trial judge is satisfied that the confession was voluntarily made he shall exclude it. If the confession has been found to have been voluntarily made and held admissible by the Court, it is recommended that the trial judge enter an order stating his findings, which order should be filed among the papers of the cause but not exhibited to the jury. Should the defendant testify at such a hearing, the cross-examination of the defendant shall be limited solely to the facts surrounding the voluntariness of the confession, and the defendant shall not be subject to cross-examination except for the limited purpose of facts involving the voluntary nature of his confession, nor shall the defendant be compelled to take the stand upon the trial of the cause upon its merits because of his testimony at this hearing.”

What I have said above is consistent with the reasoning in my recent dissent in Hill v. State, Tex.Cr.App., 403 S.W.2d 421.

Realizing the error of my ways in time, I respectfully dissent to the action of my Brethren.


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

text:
    Benny Ramirez SALAS, Appellant, v. The STATE of Texas, Appellee.
    No. 39519.
    Court of Criminal Appeals of Texas.
    May 11, 1966.
    Rehearing Denied June 22, 1966.
    John C. Cain, Emmett Colvin, Jr., on appeal only, Dallas, for appellant.
    Henry Wade, Dist. Atty., Don Koons, Mike Buckley and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDONALD, Presiding Judge.

The offense is unlawfully carrying a pistol; the punishment, enhanced by a prior conviction for the same misdemeanor offense, is two years in jail.

The information alleges that appellant “did unlawfully carry on and about his person a pistol.” The only evidence offered by the state to support this allegation is the testimony of the investigating officers, Bateman and Young, of the Dallas Police Department.

Officer Bateman testified that a Mrs. Belton told him that, on the night in question, appellant “had a pistol on him at that time and was threatening to shoot her and her daughter.” The witness admitted on cross-examination that he did not see a pistol on appellant’s person that night, that he concluded that appellant was carrying a pistol because of what he was told by the complainant, and that he did not know whether or not she was telling the truth.

Officer Young testified that he never saw appellant in possession of a pistol, and his testimony shows that the only substantiation he had as to the alleged offense was the information he had received from others.

No witness to the alleged offense testified.

The testimony of these officers as to the alleged act of unlawfully carrying a pistol was hearsay. Rogers v. State, Tex.Cr.App., 368 S.W.2d 772; Pitcock v. State, Tex.Cr.App., 324 S.W.2d 866, 324 S.W.2d 867; Donahoo v. State, 159 Tex.Cr.R. 334, 264 S.W.2d 108.

“Hearsay evidence has been defined as evidence which does not derive its value solely from the credit to be given to the witness himself, but rests in part on the veracity and competency of some other person. In terms of the actual conduct of a trial, hearsay evidence is that which a given witness offers in court (a) which is not based on his own knowledge, but is merely a repetition of what he has been told or the offering by him of a writing prepared by another, and (b) which is offered as proof of the truth of the matter contained or stated therein.” 1 Wharton’s Criminal Evidence (12th ed.) 571, Section 249.

Hearsay evidence has no probative value. Urban v. State, Tex.Cr.App., 387 S.W.2d 396; Pitcock v. State, supra; Ex parte Clark, 164 Tex.Cr.R. 385, 299 S.W.2d 128.

The only competent evidence connecting appellant with the offense is evidence that appellant owned a pistol found at the scene of the investigation. There is no competent evidence that he was ever carrying that pistol.

The evidence is insufficient to sustain the conviction, and the judgment is reversed and the cause remanded.

MORRISON, Judge

(concurring).

While I agree with the opinion prepared by my Brother McDonald, I wish to point out that there exists in this record another ground which calls for a reversal of this conviction. The prosecutor during his argument, without any facts in the record to support him, told the jury that the two women, the 54 year old complainant and her 15 year old daughter, were scared of appellant and that was the reason they were not present in court to testify. Appellant relies upon Benavides v. State, 111 Tex.Cr.R. 361, 12 S.W.2d 1031, which supports his contention.

I call attention to the following additional cases which also call for a reversal on this ground, to wit: Alford v. State, 158 Tex.Cr.R. 632, 258 S.W.2d 817; Sparks v. State, 159 Tex.Cr.R. 111, 261 S.W.2d 571; Kirk v. State, 159 Tex.Cr.R. 124, 261 S.W.2d 721; Ginsberg v. United States, 5 Cir., 257 F.2d 950, 70 A.L.R.2d 548; Shelton v. State, Tex.Cr.App., 367 S.W.2d 867, and especially Lookabaugh v. State, 171 Tex.Cr.R. 613, 352 S.W.2d 279.

I concur in the reversal of this conviction.

WOODLEY, Judge

(dissenting).

The record reflects that the state was unable to produce the lady who called the police about 9 P.M. on November 14, 1964, to report a “disturbance with a gun” at her home and who, in the presence of the appellant, told police officer Billy D. Bate-man who responded to her call that appellant had threatened to shoot her and her daughter and that the gun was in the back yard and she would show him where it was.

Subpoenas and attachments had been issued for the eye witnesses which had not been served. Their affidavits were produced by the defense to the effect that the first time they saw the gun was when the police officer took it out of a tree and that a misunderstanding between appellant and the granddaughter of the complainant was the reason the complaint was filed and she regretted having filed it.

The trial judge correctly ruled that the affidavits were not admissible in evidence.

The case was submitted to the jury as one of circumstantial evidence.

In addition to his testimony in regard to the report of the lady of the house, Officer Bateman testified that she accompanied him into the back yard of her home and pointed out the location of the gun and he took it out of a tree. The gun, a Smith and Wesson snubnosed .38 caliber special revolver, was introduced in evidence and the state offered proof identifying it by serial number and description as the pistol purchased by appellant on August 1, 1964, at Ray’s Hardware and Sporting Goods Store.

The record also reflects that appellant told the officers that the pistol was his.

The prior conviction for carrying a pistol alleged for enhancement of punishment was proved.

The evidence is sufficient to sustain the jury’s verdict.

There was testimony to support the argument that the jury could deduce from the evidence that Mrs. Belton and her 15 year old daughter were scared of appellant.

The court sustained appellant’s objection to the statement of the attorney for the state: “I submit to you he hasn’t the right to scare off two women to make them disobey an order of this court.”

The trial court did not err in refusing to declare a mistrial because of such remarks.

The judgment should be affirmed.


author: PER CURIAM /s/ David Moore JUDGE PRESIDING”

text:
    Mrs. Robert HILLIARD, et vir, Individually and as Next Friend of Neil Hilliard, Appellants, v. T. T. HINES, Appellee.
    Motion Docket No. 456.
    Court of Civil Appeals of Texas. Tyler.
    May 19, 1966.
    Jack N. Price, Longview, for appellants.
    Richard Grainger, Ramey, Brelsford, Flock & Devereux, Tyler, for appellee.
   PER CURIAM

OPINION

On March 29, 1966, the Clerk of this Court received from Mrs. Robert Hilliard, et vir, Individually and as Next Friend of Neil Hilliard, through their attorney of record, a purported transcript in Cause No. 36,692-B, styled Mrs. Robert B. Hilliard, et vir, Individually and as Next Friend of Neil Hilliard vs. T. T. Hines, in the 124th District Court of Gregg County, Texas. It appearing to the Clerk that upon examining the transcript that the appeal had not been duly perfected, the transcript was referred to the judges of this Court as provided by Rule 388, Texas Rules of Civil Procedure. An examination of the transcript so tendered reveals that judgment was rendered and signed on November 8, 1965. Plaintiffs’ (the Hilliards) motion for new trial was timely filed on November 17, 1965, and likewise their amended motion for new trial, which was timely filed on December 1, 1965. The parties, through their attorneys of record, entered into a written agreement on January 13, 1966, extending the time to and including the 1st day of February, 1966, for the Court to decide the amended motion for new trial. The transcript further reveals an order of the Court overruling plaintiffs’ amended motion for new trial. This order recites that the amended motion came on to be heard on the 1st day of February, 1966, and on the same date was signed and order entered. The appeal bond was filed on March 8, 1966.

From the foregoing, it appearing to the Court from said transcript that the amended motion for new trial was overruled on February 1, 1966 and appellants’ appeal bond having been filed more than thirty days thereafter, by reason thereof, the transcript tendered failed to show jurisdiction in this Court of said appeal.

Thereupon, the Court, upon authority of Rule 388, Texas Rules of Civil Procedure, ordered that notice of such defect issue to appellants’ attorney of record to the end that they might take steps to amend the record, if such could be done, so that jurisdiction of this Court would be shown in the transcript.

By letter of March 29, 1966, the Clerk of this Court so informed plaintiffs’ attorney of record of such defect. Thereafter, the Clerk received on March 31, 1966, from plaintiffs’ attorney of record, a supplemental transcript and the following day a motion for leave to file said supplemental transcript.

The supplemental transcript contained plaintiffs’ motion for entry of amended order overruling motion for new trial which, among other things, alleged that the order overruling plaintiffs’ amended motion for new trial as shown in the original transcript incorrectly recited that the hearing on the amended motion was heard on February 1, 1966, and that the order was signed and entered on February 1, 1966. The last paragraph in said motion reads: “Submitted herewith is an Amended Order overruling Plaintiff’s Amended Motion for New Trial, correctly reflecting the date of hearing and date of rendition of such Order, and Plaintiff respectfully prays that this Motion be granted and that the Amended Order be signed and filed.” On the bottom of said motion is an order of the Court reciting that same “having been duly considered, is hereby GRANTED and the Clerk is directed to file the attached Amended Order which has this day been signed by the Court.” This order was signed and entered on the 30th day of March, 1966, by the trial judge.

The attached corrected amended order overruling plaintiffs’ amended motion for new trial is as follows:

“AMENDED ORDER OVERRULING PLAINTIFFS’ AMENDED MOTION FOR NEW TRIAL

“ON THIS, the 13th day of January, 1966, came on to be heard the Plaintiffs’ Amended Motion for New Trial, and evidence having been adduced and the Court having heard argument of counsel and considered written brief filed by counsel, and giving due consideration, the Court, being of the opinion that said Motion should be overruled,
“IT IS, THEREFORE, ORDERED AND DECREED that Plaintiffs’ Motion and Amended Motion for NeW Trial are overruled.
“SIGNED AND ORDERED ENTERED this 9th day of February, 1966.

/s/ David Moore

JUDGE PRESIDING”

The corrected order of the trial court dated February 9, 1966, purporting to overrule plaintiffs’ amended motion for new trial must be regarded as a nullity since appellants’ motion had already been overruled by operation of law on February 1, 1966. Texas Van Lines, Inc. v. Templeton, 305 S.W.2d 646, (Tex.Civ.App.) 1957, writ ref., n. r. e.; Bowman v. Traders & General Ins. Co., 219 S.W.2d 148, (Tex.Civ.App.) 1949, writ ref.; Lucchese v. Specia, 281 S.W.2d 725, (Tex.Civ.App.) 1955, writ ref.; Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 1961; Young v. Skidmore, 380 S.W.2d 53, (Tex.Civ.App.) 1964, n. w. h.; Hubbard v. Faulks, 159 S.W.2d 919, (Tex.Civ.App.) 1942, n. w. h.; Holland v. Foley Brothers Dry Goods Company, Inc., 324 S.W.2d 430, (Tex.Civ.App.) 1959, writ ref.

Plaintiffs contend that the amended motion for new trial was not overruled by operation of law because in actuality the court overruled the amended motion for new trial and announced its decision February 1, 1966, prior to the time that the motion would otherwise be overruled by operation of law. Then the plaintiffs further contend that Rule 306a, Texas Rules of Civil Procedure states that in determining the period within which an appeal bond or affidavit in lieu thereof must be filed, “The date of rendition of a judgment or order shall be deemed to be the date upon which the written draft thereof was filed by the trial judge as stated therein”, therefore the date of the corrected order having shown to have been signed on February 9, 1966, and the appeal bond having been filed within 30 days thereof, was timely filed.

The corrected order overruling plaintiffs’ amended motion for new trial contained in the supplemental transcript does not reflect that the judge made his decision and overruled the amended motion prior to February 9, 1966, the date of the order. We must look to this order in determining whether the appeal bond was timely filed and jurisdiction conferred in this Court. Moreover, where a motion or amended motion for new trial has been on file for 45 days or if the time to decide the motion or amended motion has been extended to a day certain by written agreement of the parties, it is overruled by operation of law unless it is sooner disposed of by an order of the trial judge which has been reduced to writing and signed by him. Hernandez v. Baucum, 338 S.W.2d 481, (Tex.Civ.App.) 1960, n. w. h.

Plaintiffs did not perfect their appeal as required by Rule 356, Texas Rules of Civil Procedure, because their appeal bond filed on March 8, 1966, was filed more than thirty days after February 1, 1966. Therefore the transcripts do not show that this Court had jurisdiction. Young v. Skidmore, supra.

It is elementary that when our jurisdiction is invoked, the transcript must disclose affirmatively that we have such jurisdiction and that if it does not do so, our duty is to dismiss the appeal. 3 Tex. Jur.2d, Sec. 383, page 741; Miller v. Esunas, 401 S.W.2d 150, (Tex.Civ.App.) 1966, (application for writ pending on other grounds) ; Needham v. Austin Electric Ry. Co., 127 S.W. 904, (Tex.Civ.App.) 1910, n. w. h.; Selman v. Ross, 302 S.W.2d 752, (Tex.Civ.App.) 1957, n. w. h.

Appeal dismissed.


author: BELL, Chief Justice.

text:
    Richard Foster HARRIS, Jr., Appellant, v. Mrs. Virginia McCurdy HARRIS, Appellee.
    No. 14694.
    Court of Civil Appeals of Texas. Houston.
    May 12, 1966.
    Rehearing Denied June 2, 1966.

      Joe S. Moss, Houston, for appellant.
    Tommy R. Letbetter, Houston, for ap-pellee Schmidt & Garrett, Houston, of counsel.
   BELL, Chief Justice.

The appellee filed suit on a judgment of the Superior Court of Mecklenburg County, North Carolina, a court of general jurisdiction, in the amount of $6,267.00, that was rendered against appellant. The trial court here enforced the judgment by rendering judgment in the amount of the North Carolina judgment.

Appellee in her petition alleged that on January 17, 1963, she instituted suit for contempt of court against appellant for failure to comply with previous orders of the court directing that appellant pay $400.00 per month to appellee, and in addition make specified payments on certain indebtedness-es for the benefit of appellee. The judgment sued on is dated January 31, 1963. It was alleged that the judgment “remained in full force and effect, not reversed or otherwise vacated.” There seems to be no specific allegation that the judgment is final, though there is the allegation that because it remains in full force and effect and has not been reversed or otherwise vacated appellant is indebted to appellee in the amount of the judgment.

The appellant in his answer filed a special exception asserting that the judgment showed on its face that it was not a final one but only interlocutory. This exception was not carried forward in the answer as a plea in har, hut the answer did contain a general denial. As a special plea in bar appellant asserted a plea of res adjudicata. This consisted of an assertion that at the September term in 1962 of the Court of Domestic Relations No. 3 of Harris County, appellant obtained a divorce from appellee.

On trial before the court without a jury, the appellee introduced a properly certified copy of the judgment. The judgment recites that the cause came on for hearing on January 21, 1963; that the appellee and her attorney were present, as was the attorney of record for appellant who had been served with a copy of the order of January 13, 1963. There then appear the recitals that certain designated payments that appellant was obligated to make under an ord#r of the court of March 17, 1962, were due but had not been paid. It is recited that of this total amount, the sum of $3,162.00 is due for support payments. The balance was due for payments on debts that had been ordered. The judgment then reads as follows:

“It is therefore ORDERED, ADJUDGED, AND DECREED as follows:

“(1) The plaintiff be and she is hereby entitled to a judgment against the defendant in the total sum of $6,267.”

The next paragraph of the judgment specifies that appellee out of the total sum adjudged shall make payments on enumerated debts. Then follows the recital: “This cause is retained pending further orders of the Court.” (emphasis ours)

After introducing the judgment, appellee called appellant as a witness.

It was established by his testimony that while the judgment sued upon found he had, prior to the judgment, paid the amounts ordered to the extent of $838.00, he had in fact paid “roughly $1100.00.”

The appellant then introduced the judgment of the Texas court granting him a divorce on November 7, 1962. Too, the appellant’s petition, the citation and its return showing service on appellee, and the ap-pellee’s answer consisting of a general denial, were introduced. The judgment is lengthy and we need only notice that it purports to make division of the property, except for the real property in North Carolina, and to fix responsibility for debts.

There was no pleading of the North Carolina law; nor was there any proof of it; nor was there any request as provided in Rule 184a, Texas Rules of Civil Procedure, that the court take judicial notice of those laws. The position of appellant is that in the absence of proof of the law of North Carolina its law will be presumed to be the same as the law of Texas. From this premise, appellant proceeds to assert the following;

1. The North Carolina court had no jurisdiction over him because the judgment affirmatively shows notice of the proceeding was served only on his alleged attorney and under Texas law this does not suffice.

2. The judgment on its face shows it is not final because the court retained jurisdiction to make further orders.

3. His plea of res adjudicata was established.

There are, of course, a multitude of cases holding that a state must, under Article IV, Sec. 1 of the Constitution of the United States, give to the final judgment of a sister state the same force and effect to which it is entitled in the state where rendered. It suffices to cite the cases of Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82, and Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905.

The law of the state where the judgment is rendered governs in determining the validity, finality and effect of the judgment. However, our courts may not take judicial notice of the laws of another state in the absence of a request to do so. Rule 184a, T.R.C.P. Such laws are facts to be proven and in the absence of proof of such laws by judicial knowledge properly requested or proof otherwise, we presume them to be the same as the laws of Texas. Commonwealth of Mass. v. Davis, 140 Tex. 398, 168 S.W.2d 216; United States Fidelity & Guaranty Co. v. Richey, 18 S.W.2d 231 (Tex.Civ.App.), writ ref.; Vickers v. Faubion, 224 S.W. 803 (Tex.Civ.App.), no writ hist.; Van Natta v. Van Natta, 200 S.W. 907 (Tex.Civ.App.), writ ref.; Ogg v. Ogg, 165 S.W. 912 (Tex.Civ.App.), no writ hist.

We are of the view that the burden is on a plaintiff to establish that a judgment sued on is a valid, final and subsisting judgment, but this burden is discharged when he introduces in evidence a properly authenticated copy of the judgment which on its face appears to be a valid final judgment of a court of general jurisdiction. Garman v. Reynolds, 284 S.W.2d 262 (Tex.Civ.App.), writ ref.

Here, however, the judgment sued upon appears on its face not to be a final one under the laws of Texas. It is noted that the judgment recites: “It is ORDERED, ADJUDGED AND DECREED as follows : 1. The plaintiff be and is hereby entitled to a judgment against the defendant in the total sum of $6,267.” Nowhere is it stated that she shall have execution, and what is really controlling is that it expressly provides: “This cause is retained pending further orders of the Court.” See Ogg v. Ogg, supra, and Vickers v. Faubion, supra.

The point of appellant, that the court erred in rendering judgment for appellee because the judgment was not final, is well taken. We must, therefore, reverse and remand the case. We remand, instead of rendering, because the case was not fully developed.

Since we reverse and remand the case for retrial, it is appropriate to notice other points raised by appellant.

His assertion that the judgment shows on its face to be void is without merit. The judgment shows that it was rendered in a pending cause instituted by appel-lee and not on a cross-action, and it recites service of notice on appellant’s attorney of record and appearance by the attorney. This suffices under Texas law to give jurisdiction. Landram v. Robertson, 195 S.W.2d 170 (Tex.Civ.App.), refused, n. r. e.

Appellant’s plea of res adjudicata by reason of the judgment for divorce of November 7, 1962, is not sustainable. He should have set this up in reply to the motion for judgment filed in the suit resulting in the judgment sued upon which is dated January 31, 1963. His effort now to plead it is a collateral attack on the North Carolina judgment. This is not permissible. Commonwealth of Mass. v. Davis, supra.

Reversed and remanded.