author: CULVER, Justice.

text:
    RAILROAD COMMISSION of Texas et al., Petitioners, v. ALUMINUM COMPANY OF AMERICA et al., Respondents.
    No. A-9760.
    Supreme Court of Texas.
    May 27, 1964.
    Rehearing Denied July 15, 1964.

      Waggoner Carr, Atty. Gen., Austin, Joseph Trimble and Linward Shivers, Asst. Attys. Gen., for Railroad Commission of Texas.
    William H. Darden, Corpus Christi, Hart & Hart, Austin, William E. York, McAllen, for Coastal States Gas Producing Co., and others.
    Wallace H. Scott, Jr., Houghton Brown-lee, Jr., Austin, for Tex-Star Oil & Gas Corp’n and others.
    Harry S. Pollard, Austin, Lee Jones, Jr., San Antonio, for Karankawa Producing Co., and others.
    Miller B. Walker, Jr., Nick C. Nichols, Charles F. Cockrell, Jr., Levert J. Able, Houston, for Woods Exploration & Producing Co. and others.
    Vinson, Elkins, Weems & Searls, Ray-bourne Thompson and James E. Allison, Jr., Houston, with above firm Clark, Thomas, Harris, Denius & Winters, James H. Keahey, Austin, with above firm. Charles F. Heidrick and Edwin M. Cage, Dallas, for Aluminum Co. of America and others.
   CULVER, Justice.

Respondents, Aluminum Company of America, Crown Central Petroleum Corporation, Carl E. Siegesmund, and Sun Oil Company, (Alcoa et al.), in this suit attack and seek to set aside the Railroad Commission’s order of April 24, 1961, allocating the allowable production of oil and gas in the Appling Field in Calhoun and Jackson Counties. This order prorates the production of gas on the basis of 1/3 per well and 2/3 on the acreage assigned to the well and prorates oil on a 50% per well and 50% acreage basis. The grounds of the attack are that this order results in and permits enormous drainage to town lot and other small tract wells from under respondents’ lands and that this drainage will continue unless the Commission’s order ,is set aside. Alcoa et al. assert that they own approximately 3,700 acres of the total productive area of the Middle Kopnicky reservoir and as of June 30, 1961, had 22 wells producing therefrom; that at the same time there were 30 town lot wells with total assigned area of 25 acres; that the average per well allowable for the small tracts is 43 times the average per acre allowable for standard unit tracts in the Middle Kopnicky. These allegations are proven without substantial dispute. A number of intervenors aligned themselves with the Railroad Commission in urging that the order be upheld. The trial court adjudged that the order of the Commission was not supported by substantial evidence, was therefore null and void and enjoined its enforcement. The Court of Civil Appeals affirmed. 368 S.W.2d 818. We here reverse the judgments of the courts below and hold the Commission’s order to be valid.

The Appling Field consists of 10 separate sands for the most part overlying one another. All of these sands produce gas and condensate with a few small oil reservoirs interspersed. The principal sand, known as the Middle Kopnicky, is the deepest producing sand and by far the thickest and most prolific reservoir. It contains 80% of the gas reserves in the entire area. The nine other sands are progressively higher and overlie the producing area of the Middle Kopnicky. The discovery well in the Ap-pling Field was completed as a gas producer in the Middle Kopnicky in 1953. In 1956 the Commission for the first time adopted for this field the gas allocation formula of 1/3 per well and 2/3 per acreage. The order aly.) provided for a 320-acre gas well spacing unit and a 40-acre oil well spacing unit. At that time several town lots or small tract wells had been drilled and were in production.

Thereafter and prior to January 19, 1960, the Commission promulgated, at various times as the individual reservoirs were discovered, the same proration formula for each. No appeals were taken by Alcoa or hy anyone else from any of these orders. In fact, the evidence shows that Alcoa during this period had at least once recommended that very same formula to the •Commission for adoption.

On January 19, 1960, Alcoa et al., petitioned the Commission to hold a hearing •and to revise the oil and gas allocation formulas for these reservoirs which the Commission had theretofore promulgated. After hearings were held and the matter considered at length the Commission entered the order here under attack. It recited that the rules theretofore adopted should be revised and redrawn into one single order for all of the reservoirs and that all former ■orders were superseded and rescinded. By the terms of that order, however, the Commission refused to modify or change in any way the proration order which had first been promulgated in 1956 or any of the eight subsequent special field orders and expressly continued in force the 1/3-2/3 formula. It may be noted here that the .amount of oil reserves in the field is negligible and the parties have concerned themselves, therefore, almost exclusively with the matter of the gas reservoirs and the formula applicable thereto.

The principal point argued by the Commission and its aligned intervenors is that the evidence shows as a matter of law that Alcoa et al. were barred by unreasonable delay, laches and estoppel from seeking to set aside and revoke the order continuing the 1/3-2/3 allocation formula for ;gas production, and that the courts below erred in holding that these defenses are not applicable to suits attacking proration orders of the Railroad Commission. Their position is based primarily on the statement in our decision commonly referred to as the Normanna case as follows:

“We are in agreement with the reasoning of the courts in the Humble and Standard Oil Company cases in holding that where producers have acquiesced in and have failed to complain of the Commission’s proration orders for a long period, during which time other operators have expended vast sums in exploration and drilling operations, such producers should not be heard to complain.”

While this statement is properly to be regarded as dictum since it was not necessary to the decision in the case, nevertheless it was said deliberately, to put the Commission and the industry as a whole on notice that the holding therein did not require the overturning of proration formulas that had been in effect in other fields for years where operators had drilled and completed wells at great expense in reliance on those formulas and where conditions had become stabilized. Otherwise, not only would confusion and serious injustice result in many instances, but an intolerable burden would be cast upon the Commission. Thousands of producing wells have been drilled on small tracts in Texas oil fields as exceptions to Rule 37 in hundreds of fields in which the 1/3— 2/3 formula has been adopted and which tracts have produced far more hydrocarbons than underlaid those tracts originally. There are said to be more than 300 productive gas fields in the State which are now and have been currently operating under this formula.

The question decided in Normanna was for the first time squarely presented to this Court. We there held that the 1/3— 2/3 proration formula promulgated by the Commission for the Normanna Field was invalid because it allowed a well on a .3-acre tract to produce gas at a rate many times greater per acre than a well on a standard spacing unit. It did not come close to ratable production nor did it afford each operator in the field an opportunity to produce his fair share of the gas from the reservoir. On the contrary it would result in the uncompensated drainage of a tremendous quantity of gas and condensate from other leases and tracts in that field to the small tract upon which the defendant had drilled its well.

The theory of the Normanna decision as expressed in the quoted language is that its holding is to be applied prospectively and not retrospectively. This prospective application of Normanna is in harmony with the statute which authorizes appeals from any rule, regulation or order promulgated by the Commission. Although this statute fixes no time limit for an appeal, yet by providing that such suits shall be advanced for trial and be determined as expeditiously as possible, and that no postponement or continuance shall be granted except for reasons deemed imperative, it clearly evidences a legislative intent that those suits must be brought within a reasonable time. Dunbar v. Fuller, Tex.Civ.App., 253 S.W.2d 684, writ ref.; Midas Oil Co. v. Stanolind Oil Co., 142 Tex. 417, 179 S.W.2d 243; Board of Water Engineers v. Colorado River Municipal Water District, 152 Tex. 77, 254 S.W.2d 369. In the last case where no appellate steps were taken for a period of seven months, the appeal was held to be untimely, even though the Board order may not have been reasonably supported by substantial evidence and had the ap-pellees proceeded with diligence, they might have been enabled to obtain the relief sought.

Alcoa insists that the decisions such as Midas Oil Co. v. Stanolind have no application to the problem here presented because there is a basic difference between a Commission order establishing a field-wide allocation rule and an order granting an exception to a Rule 37 permit in that the granting of the permit fixes a vested right while the allocation orders do not. We concede that distinction, but nevertheless we believe the law, as announced therein, is pertinent to the facts here.

Unquestionably the Commission’s, power to regulate oil and gas production in the interest of conservation and protection of correlative rights is a continuing one and its orders are subject to change or modification where conditions have changed materially, new and unforeseen problems arise or mistakes are discovered. Magnolia Petroleum Co. v. New Process Production Co., 129 Tex. 617, 104 S.W.2d 1106; Railroad Commission v. Humble Oil & Refining Co., Tex.Civ.App., 193 S.W.2d 824, writ ref. n. r. e. It is equally true that no landowner or operator acquires any vested right to continue to-produce the same amount of oil or gas-during the life of such well as was fixed by the proration schedule in force at the time he drilled his well. The regulation of the production of oil and gas is a valid' exercise of the state police power. Texas Trading Co. v. Stanolind Oil & Gas Co., Tex.Civ.App., 161 S.W.2d 1046; Railroad Commission v. Rowan & Nichols Oil Co., 310 U.S. 573, 60 S.Ct. 1021, 84 L.Ed. 1368.

What we do say is, however, that in appealing from any order of the Railroad Commission one must proceed with reasonable diligence. The course pursued by Alcoa in this case in moving for a modification of the long-standing 1/3-2/3 formula and then taking an appeal from a denial of that motion for all practical purposes, and so far as the interests of the parties are concerned, differs in no material respect from a present attempt to appeal from the original 1956 order and the ones that followed. Alcoa had the right to seek a revision of these orders, but only upon a showing of changed conditions and a resultant necessity therefor.

There have been no material changes nor have unforeseen problems arisen, affecting proration in the Appling Field, that in our opinion would compel the Railroad Commission to modify or rescind the proration orders promulgated prior to January 19, 1960. As pointed out above, the effect of the Commission’s order complained of here was merely the refusal to set aside the orders that had theretofore been adopted. At the time •of the first field proration order in 1956 it appears that five wells had been drilled in the area on small tracts. This drilling under the Rule 37 exception continued until thirty wells had been brought into production prior to May 18, 1959, and others had been completed before Alcoa filed its application before the Board. The cost of drilling per well ranged from ninety to two hundred thousand dollars. From the testimony it appears that Alcoa could reasonably have concluded in 1956 that many town-lot tracts lay within the proven territory. Alcoa knew that as a matter of law each town-lot owner, or at least many of them, would in all probability be entitled to one well as exceptions to Rule 37.

Beginning in 1954 there were negotiations between Alcoa et al. and some of the small-tract owners concerning the matter of pooling and unitization. There is evidence to the effect that Alcoa and its associates refused some such offers from small-tract owners. There is evidence that the Carancahua Townsite in 1955 was surrounded by four or five wells that had been drilled by Alcoa which indicated that the townsite was a proven potential area for production and that the area was being drained by the Alcoa wells at that time.

Likewise there were negotiations between the intervenor, Sun Oil Company, and some town-lot owners in the Port Alto Subdivision looking to unitization and pooling agreements. These two town-lot areas spread over about 150 acres and were divided into more than 200 lots. All of these facts undoubtedly were fully known to Alcoa and the other respondents at the time of the promulgation of the first order in 1956 and they must have fully appreciated the almost certain probability of the drainage that would necessarily follow from completions on town lots in the productive area.

It is true that a number of these town-lot wells owned by some of the petitioner-intervenors have been drilled and brought into production subsequently to January 19, 1960, when Alcoa et al. first applied to the Commission for a revision and modification of the existing proration orders. In fact all of the wells of two of these intervenors had been so drilled. Three of these intervenors had completed all of their wells earlier. But the fact that some of these wells were drilled after they were put on notice of Alcoa’s application is not material to a solution of the problem here. It could not affect adversely those operators whose wells were drilled earlier. We are dealing here with a field-wide rule. Whether or not there is any authority vested in the Commission to apply exceptions to a field-wide rule in some cases, that relief is not here sought by Alcoa. They seek to strike down the order as applicable to the entire field.

In Standard Oil Co. v. Railroad Commission, Tex.Civ.App., 215 S.W.2d 633, n. r. e., Standard filed its application with the Commission seeking a modification of the Yates Field proration formula which had remained in effect without substantial change for nearly nine years theretofore. On page 638 of that opinion the Court points out:

“ * * * From the very nature of a proration formula, and the magnitude of the interests therein, both public and private, it ineluctably follows that the Commission has the afirma-tive right, when challenged in an appropriate judicial proceeding, to have its validity established, and the continuing uncertainty removed, which would result from the untrammeled right of the challenging party, from whatever cause, to bring its validity (except for changed conditions) again in issue. * * * ”

From that premise Alcoa et al. argue that laches and delay do not apply to field-wide proration orders in that, they say, the Court holds that Standard had the “untrammeled right” to attack the order on any grounds and at any time they saw fit. We do not agree with that argument. Standard’s principal contention in that cause was that having moved for a non-suit it was entitled as a matter of law to a dismissal of the entire suit without prejudice. The Court held, however, that the Commission having prayed that these orders be sustained, it was entitled to a judicial determination of their validity to set at rest any uncertainty in that respect. The Court is not saying, as we construe its language, that Standard after long delay does have the untrammeled right to put in issue the validity of the proration formula absent changed conditions.

Alcoa et al. contend that there is no evidence to show that any well owner on any small tract in this field has failed to obtain already from his allotted production the entire cost of his drilling and maintenance operations, together with some profit, and therefore it would be wholly unfair and unjust to permit a continuation of drainage from their properties which has up to the present time and will in the future result in a total loss to them of gas and condensate to the value of several million dollars. Even this argument, persuasive as it is, does not convince us that this Court should interfere with the administration by the Railroad Commission of the production from this field where small tract drilling has been conducted and large sums expended in reliance on the formula that had been iit force without objection for a period of four years.

There are many reasons why stability in respect to proration formulas is vital, to the well being of the industry as a whole, to the property owners in the field and to the public at large. It is a matter of common knowledge that well owners are not alone concerned. Individuals and institutions have invested in royalties and in other oil and gas interests. Loans have-been made with these properties as security, and taxes have been levied by-various municipal and school authorities. It is well known that the economy of the whole state rests to a large extent on the oil and gas business.

For the reasons above expressed we-uphold the Railroad Commission’s order of April 24, 1961. The judgments of the trial court and the Court of Civil Appeals are reversed and judgment here rendered that respondents take nothing.

      . Atlantic Refining Co. v. Railroad Commission of Texas, 162 Tex. 274, 346 S.W.2d 801, 811.

      . Vernon’s Ann.Civ.Stat., Art. 6049c, § 8.


source: Caselaw Access Project

author: NORVELL, Justice.

license: Public Domain

text:
    Ruby M. ALLEN, Petitioner, v. AMERICAN NATIONAL INSURANCE COMPANY, Respondent.
    No. A-9818.
    Supreme Court of Texas.
    June 3, 1964.
    Rehearing Denied July 15, 1964.

      Dunnam, Dunnam & Dunnam, Waco, for petitioner.
    Beard, Kultgen & Beard, Waco, for respondent.
   NORVELL, Justice.

Ernest Jody Allen suffered a massive myocardial infarction on July 1, 1962 which resulted in death. His widow brought this suit against American National Insurance Company to recover upon an insurance policy. After a jury trial, the District Court awarded Mrs. Allen a judgment for $7,600, being the face amount of the policy ($5,000) plus a statutory penalty and attorney’s fees. This judgment was reversed by the Court of Civil Appeals. 370 S.W.2d 140.

Mrs. Allen’s application for writ of error was granted. Because of this action, the insurance company’s application praying for a rendition of judgment in its favor, was also granted so as to bring the entire case before us. Because of the dual positions occupied by the parties here, their trial court designations will be used.

We have decided that under the jury findings relating to the pleaded defense that the policy of insurance was procured by fraudulent representations, judgment should have been rendered for the defendant.

Procedural problems are raised by the record. The opinion of the Court of Civil Appeals sets out in detail the evidence relating to the procurement of the policy. We need repeat only so much of that Court’s statement as may be necessary to make the bases of our holdings clear.

At the outset it should be said that we agree with the holding of the Court of Civil Appeals that the findings of the jury which have evidentiary support establish no basis for either a waiver or estoppel against the insurance company. That Court correctly held that there was no evidence ■“that the company or (its) agent knew insured had any pre-issuance disease of the heart before the promise to pay (the proceeds of the insurance to Mrs. Allen) was made.” The waiver and estoppel issues are adequately discussed in the opinion of the Court of Civil Appeals and hence further discussion relating thereto is pretermitted.

The trial judge submitted certain issues embodying the fraudulent representations defense which were answered favorably to the insurance company. However, judgment was rendered for Mrs. Allen. The recitals of the judgment do not specifically point out the theory upon which it is based, although the insurance company pleaded two special defenses and the plaintiff asserted a waiver or estoppel against the insurance company based upon the actions of the insurance company representatives which took place after the death of Mr. Allen. The judgment simply recites that “the court having found from said verdict and evidence herein that defendant is legally bound and obligated to pay plaintiff under the terms of the insurance policy on the life of Ernest Allen, deceased *

In it motion for new trial, the insurance company urged that the judgment theretofore rendered should be vacated and in lieu thereof judgment should be rendered that plaintiff take nothing. It was averred that:

“In its answers to Special Issue No. 22a, 23, 24, 25, 26 and 27, the jury found on the basis of sufficient evidence all of the elements of a defense to Plaintiff’s claim on the ground of misrepresentation on the health of Ernest Jody Allen except materiality. Allen’s answers to the inquiries in his application for insurance that he had had no diseases of the heart, when in fact he had had serious heart attacks and flare ups about every six months for several years prior to his death and when he died from a heart attack were material as a matter of law. In any event the Jury’s finding in Special Issue No. 29 that Allen suffered an acute myocardial infarction made his death from a later myocardial infarction more likely, which answers were based on sufficient evidence, constitute a finding of materiality. Since all of the elements of the defense to Plaintiff’s claim based on misrepresentation have been thus established, the trial court erred in entering judgment for Plaintiff and failing to enter Judgment for Defendant.”

This position was constantly maintained in both the Court of Civil Appeals and in this Court. In our opinion it must be sustained.

By its answers to the issues mentioned in the motion, the jury found from a preponderance of the evidence that (22-a) Mr. Allen answered “no” to the question in the life insurance application inquiring whether he had ever had or had been treated for high blood pressure, shortness of breath, any disease of the heart, chest pain, low blood pressure or abnormal pulse; that (23) Allen intentionally answered “no” to such question; that (24) such answer was false ; that (25) “Allen knew or should have known that the answer ‘no’ * * * was false” (italics supplied) ; that (26) Allen gave the answer “no” for the purpose of inducing the insurance company to issue the policy; that (27) the insurance company relied upon Allen’s answer to the question in the application “referred to preceding Special Issue 3 (sic, evidently 23 was intended) in issuing the life insurance policy in question”; that (29) Allen suffered an acute myocardial infarction in 1957, and that (30) the 1957 infarction made his death from a later myocardial infarction more likely.

The Court of Civil Appeals ordered a new trial of the cause stating that the trial court’s judgment was apparently based upon the erroneously submitted issues relating to estoppel and waiver. (370 S.W.2d 144). That Court also, in effect, held that the insurance company had sustained its defense of fraudulent representations and that except “for another finding to be noticed,” would be entitled to judgment. (370 S.W.2d 143) The finding or findings thereafter discussed relate to plaintiff’s specially pleaded grounds of recovery, namely, waiver and estoppel, which were not sustained by {■he facts and hence were not well taken. In our opinion none of the findings relating thereto would prevent a judgment being rendered in favor of the insurance company upon its fraudulent representations defense. However, plaintiff, in an effort to secure a reversal of the judgment of the Court of Civil Appeals and an affirmance of the trial court’s judgment asserts, among other points, that the Court of Civil Appeals erred (1) in holding that “a finding that a false representation was made when the maker knew or should have known its falsity was a finding of a conscious intent to deceive.” ; (2) “in holding that the making of a false representation in an application for a life insurance policy when the maker merely ‘should have known’ its falsity was ground for vitiating the insurance contract”, and (5) “in failing to hold that (the insurance company) failed to establish that the false representation was material.”

We thus have a squarely drawn issue. The defendant says that this Court should render judgment in its favor upon the jury’s findings while the plaintiff asserts that no judgment should be rendered against her because the defense was improperly submitted to the jury because of the inclusion of the phrase “or should have known” in Special Issue No. 25.

In Clark v. National Life & Accident Insurance Company, 145 Tex. 575, 200 S.W.2d 820 (1947), this Court said:

“It is the settled rule that, in order to avoid a policy, false statements must have been made willfully and with design to deceive or defraud. American Cent. Life Ins. Co. v. Alexander, Tex.Com.App., 56 S.W.2d 864; Great Southern Life Ins. Co. v. Doyle, 136 Tex. 377, 151 S.W.2d 197; Westchester Fire Ins. Co. v. Wagner, 24 Tex.Civ.App. 140, 57 S.W. 876” (writ denied).

In Great Southern Life Insurance Company v. Doyle, 136 Tex. 377, 151 S.W.2d 197 (1941) it was held that one having syphilis but being unaware of such condition could not be said to have willfully made a representation as to the absence of the disease with an intent to deceive.

See also, American Cent. Life Ins. Co. v. Alexander, Tex.Com.App., 56 S.W.2d 864 (1933); Colorado Life Co. v. Newell et al., Tex.Civ.App., 78 S.W.2d 1049 (1935) writ refused; Pioneer Am. Insurance Co. v. Meeker, Tex.Civ.App., 300 S.W.2d 212 (1957) ref. n. r. e.; 21 Appleman Insurance Law and Practice, § 12122; 11 Baylor Law Rev. 236 (1959). This means, as stated by Couch, that “the insured must have made (the representations) with knowledge of their falsity or with an intent to deceive, •otherwise the policy is not avoided by their falsity.” Couch on Insurance 2d, § 37:101.

It is true, as pointed out by the Court •of Civil Appeals, that in Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820, supra, this Court used the words "should have known” in connection with the statement of the rule relating to fraudulent representations in applications for insurance. It was said that:

“It is also well settled in this State that to avoid a policy of insurance because of misrepresentations, the burden is on the insurer to plead and prove, not only that the answers made by the insured were false or untrue, but that the insured knew, or should have known, that they were untrue, and that he made them willfully and with the intention of inducing the insurer to issue him a policy. American Cent. Life Ins. Co. v. Alexander, Tex.Com. App., 56 S.W.2d 864; Doyle v. Great Southern Life Ins. Co., Tex.Civ.App., 126 S.W.2d 735, affirmed 136 Tex. 377, 151 S.W.2d 197; General American Life Ins. Co. v. Martinez, Tex.Civ. App., 149 S.W.2d 637; American Nat. Ins. Co. v. Green, Tex.Civ.App., 96 S. W.2d 727; Provident Life & Accident Ins. Co. v. Flowers, Tex.Civ.App., 91 S.W.2d 847; 46 C.J.S. Insurance, § 1319, pp. 435-437.” (Italics supplied.)

In Clark, the Court was concerned with the argument that it appeared conclusively as a matter of law that the application for insurance contained false representations willfully made with the intention of inducing the insurance company to issue the policy. This contention was not sustained by the Court and the use of the words “should have known” was clearly not necessary to dispose of the issue. None of the Texas cases cited in Clark suggest that ■simply because an applicant should have known that a certain statement made by him was untrue will bar a beneficiary’s recovery upon the policy issued as a result of the application.

A court might properly conclude from certain facts that, inferences of the knowledge of disease or bodily condition must be drawn as a matter of law. The phrase “should have known” may suggest this concept. However, such words are not suitable for this purpose as the usual connotation of the phrase “should have known” has to do with negligence and would so be understood by a jury. It is not a proper phrase for use in a jury submission because it does not correctly present the substantive law governing the defense of fraudulent representations. Cf. Halepeska v. Callihan Interests, Inc., Tex.Sup., 371 S.W.2d 368 (1963)

Texas Industrial Trust, Inc. v. Lusk, Tex.Civ.App., 312 S.W.2d 324, wr. ref. (1958) lends no support to the submission of the “should have known” theory. The holding in Lusk is that, “The utterance of a known false statement, made with intent to induce action, * * * is equivalent to an intent to deceive.” The Court there was talking about a statement made with the knowledge that it was false and not with a representation that was negligently or carelessly made.

We have, however, come to the conclusion that the defect in the jury submission occasioned by the use of the words “or should have known” may not be urged by plaintiff as a grounds for refusing to render judgment for the insurance company.

While Special Issue No. 25 was defective in that it did not correctly inform the jury of the substantive law relating to the controversy, no objection was lodged against such issue. Apparently, in the trial court, plaintiff, as well as defendant, accepted the issues as constituting a correct submission and no objection was made to use of the words, “or should have known” until after the Court of Civil Appeals had ordered a remand.

It seems well settled in this State that where no objection is made to a defective submission of a controlling issue constituting a component element of a ground of recovery or a defense and a judgment is rendered thereon, such judgment will not be reversed because the failure to object is considered as a waiver of the defective submission of such issue. Rule 274, Texas Rules of Civil Procedure. Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79 (1940); Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853 (1950); Cox v. Huffman, 159 Tex. 298, 319 S.W.2d 295 (1959); Frozen Foods Express v. Odom, Tex.Civ.App., 229 S.W.2d 92, ref. n. r. e. (1950); McDonald, Texas Civil Practice, § 12.27.

In the case of the omission of a controlling issue which is one of a cluster of issues embodying a theory of recovery or defense, it will be implied that the omitted issue was found in support of the judgment, Rule 279. Rodriguez v. Higginbotham-Bailey-Logan Co., Tex.Civ.App., 172 S.W.2d 991, wr. ref. (1943). When, however, as in the present case, the controlling issue is submitted, albeit in defective form, a question of waiver and not implied findings is involved. Rule 274 provides that:

“A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection. Any complaint as to an instruction, issue, definition or explanatory instruction, on account of any defect, omission, or fault in pleading, shall be deemed waived unless specifically included in the objections. * * ”

This rule is largely the restatement of a statutory provision in existence at the time the Rules of Civil Procedure went into effect. In discussing the practice, Chief Justice McClendon, speaking for the Austin Court of Civil Appeals in Panhandle & Santa Fe Ry. Co. v. Friend, 91 S.W.2d 922, no wr., (1936), said:

“Where, however, the ground (of recovery or defense) is submitted, however erroneously or incompletely, the parties are thereby put upon notice that the jury’s answers to the issues actually submitted will form the basis of the court’s judgment thereafter to be rendered thereon. It then becomes the duty of each party to point out errors of omission or commission, or be held estopped from thereafter urging them.” (Italics supplied.)

See also, Service Life Insurance Co. v. Miller, Tex.Civ.App., 271 S.W.2d 301, 1. c. 305, ref. n. r. e. (1954); Goff v. Texas Employers’ Insurance Association, Tex.Civ.App., 278 S.W.2d 326, ref. n. r. e.; Hodges, Special Issue Submission in Texas, p. 206.

From the above authorities we take it that the waiver which arises from the failure to object to an issue is equally binding upon both litigants and the contention that the issue was defective in wording and content cannot, because of such failure to object, be thereafter raised either in the Court of Civil Appeals or this Court, and, further, that this rule of waiver is operative regardless of the action of the trial court in awarding judgment or refusing to award judgment upon an asserted ground of recovery or defense of which the issue in question is in itself a ground of recovery or defense or constitutes a component element thereof.

We are further of the opinion that the findings of the jury establish that the misrepresentations in question were material to the risk.

None of the other contentions raised in plaintiff’s application for writ of error need be discussed. Even if such contentions were sustained, judgment would nevertheless have to be rendered for the defendant upon its theory that the policy was procured through fraudulent representations contained in the application for insurance.

The judgments of the trial court and the Court of Civil Appeals are reversed and judgment here rendered that plaintiff take nothing against the insurance company.


author: WALKER, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Petitioner, v. EMPLOYERS CASUALTY COMPANY, Respondent.
    No. A-9808.
    Supreme Court of Texas.
    June 17, 1964.
    Rehearing Denied July 15, 1964.

      Gay & Meyers, Austin, for petitioner.
    Leachman, Gardere, Akin & Porter and Gordon H. Rowe, Jr., Dallas, for respondent.
   WALKER, Justice.

This controversy between two insurance companies arises out of an accident in which three employees of M. Z. Collins lost their lives. Collins was the general contractor for the construction of a new high school in Austin, and Borders Steel Erection Company was one of the subcontractors. Mixed concrete for the job was furnished to Collins by Capitol Aggregates, Inc. The workmen were killed when a crane owned and operated by Borders collapsed while it was being used to transport concrete from Capitol’s ready-mix concrete truck to the concrete forms of the general contractor.

Employers Casualty Company was the automobile insurer of Capitol, and The Travelers Insurance Company was the general liability insurer of Borders. Travelers paid the beneficiaries of the deceased workmen a total of $61,020.30 in settlement of their claims, and then brought this suit against Employers to establish the latter’s liability for the amount of the settlement plus attorney’s fees and expenses of investigation. The case was tried to the court without a jury, and judgment was rendered that Travelers take nothing. No findings of fact or conclusions of law were filed or requested.

The judgment of the trial court was affirmed by the Court of Civil Appeals at Dallas, which held that the accident did not arise out of the unloading of the truck within the meaning of the policy issued by Employers. 370 S.W.2d 105. A similar conclusion had previously been reached by a majority of the Court of Civil Appeals at Austin in the appeal from the order sustaining Employers’ plea of privilege. Travelers Ins. Co. v. Employers Casualty Co., Tex.Civ.App., 335 S.W.2d 235 (writ ref. n. r. e.). On the basis of the authorities cited by the parties at that time, it was then our opinion that the policy issued by Employers did not protect Borders. In view of our refusal to grant a writ of error in the earlier appeal, the Court of Civil Appeals at Dallas naturally felt it was bound by that decision. Upon further consideration and in the light of the additional authorities now cited by the parties, we have concluded that Borders was covered by the automobile liability policy under the facts of this case.

The policy issued by Employers to Capitol contains the following provisions:

“I. Coverage A. Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of any automobile.
* * * * * *
“III. Definition of Insured. The unqualified word ‘insured’ includes the named insured and also includes any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission * * *.
“IV. Purposes of Use Defined, (a) The term ‘pleasure and business’ is defined as personal, pleasure, family and business use. (b) The term ‘commercial’ is defined as use principally in the business occupation of the named insured as stated in the declarations including occasional use for personal pleasure, family and other business purposes, (c) Use of an automobile includes the loading and unloading thereof.”

Employers thus agreed to pay on behalf of any person loading or unloading the truck with the consent of Capitol all sums which such person might become legally obligated to pay as damages because of bodily injury, including death at any time resulting therefrom, caused by accident and arising out of the loading or unloading of the truck. The question to be decided then is whether the deaths of the three workmen arose out of the unloading of the truck within the meaning of the policy.

The courts of other jurisdictions are not in agreement as to what is covered by the “loading and unloading” clause of an automobile liability policy. According to the minority view, loading begins when the transported object has been brought into the immediate vicinity of and is being physically carried or lifted into the vehicle, and unloading ends when the object reaches a place of rest and is no longer being carried or lifted off the vehicle. This is generally referred to as the “coming to rest” rule. “The broader construction, adopted in a majority of the jurisdictions which have passed upon the question, is that ‘loading and •unloading’ embrace, not only the immediate transference of the goods to or from the vehicle, but the ‘complete operation’ of transporting the goods between the vehicle and the place from or to which they are being delivered.” See Wagman v. American Fidelity & Casualty Co., 304 N.Y. 490, 109 N.E.2d 592. See also Risjord, Loading and Unloading, 13 Vanderbilt Law Rev. 903; Annotation, 160 A.L.R. 1259. The foregoing statements of the two opposing views are subject to certain qualifications in particular cases, but with this reservation we approve and adopt the majority rule as representing the proper approach to a determination of the coverage afforded by the clause in question. See American Employers’ Ins. Co. v. Brock, Tex.Civ.App., 215 S.W.2d 370 (writ ref. n. r. e.).

Turning now to the specific problem presented here, ready-mix concrete must be used within thirty minutes to an hour after it is discharged from the truck. Unlike steel or brick it cannot be stored at the construction site indefinitely, and for that reason is ordered as needed and must be placed in the forms promptly. In the present case Capitol sent its ready-mix concrete trucks to the general contractor at the site where the new high school was being constructed. Where it was possible to do so, the trucks were driven up to the concrete forms and the concrete was emptied directly into the forms. When the forms were inaccessible, the concrete was emptied into the contractor’s bucket or into a conveyor system and transported to the forms in that manner. On the occasion when the three men were killed, Capitol had delivered some ready-mix concrete to the construction site and the same was being unloaded from the truck and carried to the forms by means of a bucket attached to Borders’ crane. After the contents of one of the trucks had been emptied into the bucket and while the crane was moving the bucket filled with concrete toward the forms, the crane buckled and fell, inflicting the fatal injuries.

There are four decisions by trial and intermediate appellate courts of other jurisdictions involving the unloading of ready-mix concrete trucks. Two of them were on facts substantially similar to those outlined above, and in both it was held that the crane operator was covered by the liability policy on the truck. Lamberti v. Anaco Equipment Co., 16 A.D.2d 121, 226 N.Y.S.2d 70; St. Paul Mercury Ins. Co. v. Huitt, D.C.Mich., 215 F.Supp. 709. Our study of these cases convinces us they are correctly decided and should be followed in so far as they deal with the problem now under consideration. See also Pavlik v. St. Paul Mercury Ins. Co., 7th Cir., 291 F.2d 124; Travelers Ins. Co. v. General Casualty Co., D.C.Idaho, 187 F.Supp. 234. As pointed out by the court in Lamberti:

“The respondent contends that the place of delivery was the bucket of the crane and, therefore, the unloading operation was completed when the concrete had been placed in the bucket. We cannot agree. The bucket cannot be considered ‘the place * * * to which’ the concrete was being delivered. It was merely the necessary conduit by which the concrete was conveyed to its place of delivery. The trip in the bucket to such place of delivery was merely an incident in the unloading operation. Indeed, because of the manner of the operation, the truck could not have been unloaded other than by the repeated trips of the bucket from the truck to the place of use of the concrete. The employment of the crane and the bucket was just as essential a part of the complete operation of unloading as was the discharge of the concrete from the truck into the bucket. * * * The means by which the material is removed from a truck is of no particular consequence, whether the removal be effected by a rack, by hand or by a crane * * *. The sole test is whether the means used was in the process of unloading. In this case the bucket was merely an instrument to effect the unloading.
* # * % * *
“It is not unfair to the insurance carrier to hold that the delivery function was not complete until the concrete reached its ultimate destination. Particularly so in the case of mixed concrete where there could be no intermediate place of sojourn. By the very nature of that material it is essential that it be taken directly from the delivery truck to the place at which it becomes a permanent portion of the construction. Concrete, unlike lumber or other building materials, cannot be stored at the job site for later incorporation into the structure. It must be deposited immediately at its permanent resting place. It is for that very reason that a transit-mix truck is used in this type of operation. If it were the intention of the insurer to confine its liability to a more circumscribed aspect of the loading process, language appropriate to such end could have been employed. * * *

Employers relies on the testimony of M. Q. Haile, Jr., Vice President and Manager of Capitol, that the concrete belonged to Collins when it was placed in the bucket, that Capitol’s employees thereafter had no control over the same, and that such employees had no control over the crane. It says that this evidence demonstrates that delivery had been made and the unloading operation completed. In American Employers’ Ins. Co. v. Brock, supra, the court quoted from the opinion in Pacific Automobile Ins. Co. v. Commercial Cas. Ins. Co., 108 Utah S00, 161 P.2d 423, 160 A.L.R. 1251, where it was said that under the complete operation doctrine “loading or unloading” includes the entire process involved in the movement of the articles from the place where the insured’s employees find the articles which are to be moved by truck to the place where the employees of the insured turn them over to the party to whom they are to make delivery. In using this language, the Supreme Court of Utah evidently was thinking of the ordinary case where the unloading is done by the named insured or his employees. It certainly did not intend to say that a consignee who accepts delivery on the truck will not be protected while lifting the articles out of the vehicle.

As indicated above, the rule cannot be stated in general terms that will explain all of its applications. Where an additional insured is involved, “delivery” as used by the courts refers not to the legal transfer of title, control, or risk of loss but to the physical placing of the articles at the point where the unloading process may, under the facts of the particular case, be regarded as complete. The issue here is not who owned or controlled the concrete but whether Borders was unloading the truck, and thereby using it, while the bucket full of concrete was being moved from the truck to the contractor’s forms. If Capitol had rented or borrowed the crane and bucket, and its employees were using the same to unload the truck, the automobile liability policy would clearly protect Capitol and its employees against liability arising out of the accident involved in this case. Under the terms of the policy, the same protection is afforded Borders who was an additional insured using (unloading) the truck with the consent of Capitol.

Employers also relies on the rule that there must be a causal relation or connection between the accident or injury and the ownership, maintenance or use of the vehicle. This does not mean that the accident must be caused by negligent operation of the vehicle or some defect therein. When a vehicle is being unloaded it is being used to the same extent as if it were being driven, and the person doing the unloading is entitled to the same protection as the owner or operator. In this instance the accident resulted from the collapse of the crane which was transporting concrete from the truck to the forms. Since the injuries arose out of the use (unloading) of the vehicle, it is our opinion that Borders was, as a matter of law, entitled to the protection afforded by the policy covering the truck.

In oral argument before this Court, Employers suggested for the first time that the judgment of the trial court must be affirmed because the record does not show the limits of its policy or that the same constitutes primary coverage. No attempt was made at the trial to introduce either of the two insurance policies in evidence. The above-quoted provisions of the policy issued by Employers are shown by its answers to a request for admissions, but the trial court had no way of knowing the policy limits or the stipulations, if any, which determine the respective rights and obligations of the parties. The latter omission is not of controlling importance here, but the court could not award Travelers a judgment in any substantial amount when the evidence fails to show the limits of the policy issued by Employers or that such company was under an obligation to investigate and defend the claims.

Travelers was entitled to nominal damages, however, upon establishing that it was the insurer of the owner of the crane, that it had settled with the beneficiaries of the three deceased employees, that the settlement was reasonable, that the policy issued by Employers also covered the loss, and that Employers had refused to pay any amount on the settlement. We recognize the general rule that where the record shows as a matter of law that the plaintiff is entitled only to nominal damages, the appellate court will not reverse merely to enable him to recover such damages. See Biggs v. Loyd, Tex.Civ.App., 177 S.W.2d 1020 (writ ref. w. m.); Wafer v. Edwards, Tex.Civ.App., 248 S.W.2d 320 (no writ) ; Freeman v. Schwenker, Tex.Civ.App., 73 S.W.2d 609 (no writ). It has also been held that the right to recover nominal damages and costs is waived where no request therefor is made in the trial or appellate court. Payne v. Holmes, Tex.Civ.App., 151 S.W.2d 359 (writ dis. judg. cor.); Matthews-Carr v. Brown Exp., Tex.Civ.App., 217 S.W.2d 75 (no writ). On the other hand, there are a number of cases in which the appellate court has reversed and rendered to award the plaintiff nominal damages and costs. Wilson v. Hart, Tex.Civ.App., 332 S.W.2d 107 (no writ); Maass v. Sefcik, Tex.Civ.App., 138 S.W.2d 897 (no writ); Flournoy v. Story, Tex.Civ.App., 37 S.W.2d 272 (no writ).

The authorities indicate that there are a number of exceptions to the general rule mentioned above. Although “on the plaintiff’s case as presented at the trial a verdict for nominal damages only would have been justified, yet if the court can now see that substantial damages may be proved at another trial they will reverse the judgment and grant a new trial.” Sedgwick on Damages, 9th ed. 1913, § 109. See also Callanan v. Keenan, 224 N.Y. 503, 121 N.E. 376; Thomson-Houston Elec. Co. v. Durant Land Imp. Co., 144 N.Y. 34, 39 N.E. 7; Stevens v. Rogers, 16 Utah 105, 51 P. 261; Annotation, 44 A.L.R. 168, 182; 5 Am. Jur.2d Appeal and Error § 790; 5B C.J.S. Appeal and Error § 1914. While this exception can have only a very limited application, we think the present case is governed thereby. Prior to reaching this Court, counsel for both parties devoted their attention entirely to the single legal question in dispute between them. It is evident that the failure to introduce the two policies was due to oversight which resulted from preoccupation with the real issue in the case, that if the hiatus in the evidence had been called to the attention of the trial court Travelers could have supplied the necessary proof or at least requested a judgment for nominal damages, that such court erred in rendering a take-nothing judgment against Travelers, and that a substantial injustice will be done if that judgment is affirmed because of a deficiency which apparently was not discovered by either party until shortly before the case was argued here. In these circumstances we are of the opinion that the judgments of the courts below should be reversed and the cause remanded to the district court for a new trial. It is so ordered.


author: MORRISON, Judge.

text:
    Patrick E. HOWE, Appellant, v. The STATE of Texas, Appellee.
    No. 36496.
    Court of Criminal Appeals of Texas.
    June 27, 1964.

      Paul W. Wisdom, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., George Milner, Jim Miller, Harryette Bercu and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is robbery; the punishment 24 years in the penitentiary. Our prior opinion is withdrawn and the following is substituted in lieu thereof.

The evidence, briefly stated, reflects that on March 1, 1963, at 1:30 p. m., appellant walked into the Alamo Laundry sub-station, managed by H. C. Remington, and asked Mr. Remington what time the station closed. He was informed that the station closed at 6:00 p. m. Between S :00 and 6:00 the same evening, appellant returned to the substation, placed a paper sack on the end of the cash register, pointed a gun at Mr. Remington and stated, “I will blow your brains out; get that money in there quick, and I mean all of it.” The amount of $51.-79 was put in the sack, whereupon appellant ran from the building and drove away with a companion in a green and white Chevrolet. Mr. Remington pointed appellant out in a police lineup a few weeks after the robbery.

W. F. Gentry, a police officer for the city of Dallas, described the apprehension of appellant on March 26, 1963. Through James M. Leavelle, an officer with the Dallas Police Department, a confession made by appellant was admitted into evidence without objection, in which the robbery of the Alamo Laundry sub-station was admitted.

In testifying as to the arrest, Officer Gentry was allowed to state, over appellant’s objection that when appellant was searched, money was found stuffed into the front of appellant’s shirt. Appellant’s only objection to this testimony was, “We object to that, Your Honor, at this time.” Such an objection is not sufficient to preserve error. Erwin v. State, 171 Tex.Cr.R. 323, 350 S.W.2d 199, and authorities there cited. See also Wade v. State, 161 Tex.Cr.R. 195, 275 S.W.2d 665.

There are no formal bills of exception in the record, and no error is reflected by the informal bills preserved. Finding the evidence sufficient to support the conviction, the judgment is affirmed, and appellant’s motion for rehearing is overruled.


text:
    Patrick E. HOWE, Appellant, v. The STATE of Texas, Appellee.
    No. 36497.
    Court of Criminal Appeals of Texas.
    June 27, 1964.

      Paul W. Wisdom, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., Dallas, George Milner, Jim Miller, Harryette Bercu and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is robbery; the punishment, 15 years in the penitentiary. Our prior opinion is withdrawn and the following is substituted in lieu thereof.

The record reflects no formal bills of exception.

According to the testimony of Milton Adams, manager of the Park-It Market Drive-In grocery at 4534 Bryan, Dallas, Texas, on March 7, 1963, appellant and a companion entered the store around 10:00 p. m. They remained until all the customers had left and then took their purchase to Mr. Adams. At this time appellant pulled a gun and his companion took $109.00 from the cash register, demanding also what Mr. Adams had in his pockets. Mr. Adams had only three nickels, so this money was not taken. Mr. Adams further testified that he pointed appellant out in a police line-up a few weeks after the robbery.

On March 26, 1963, Officers W. F. Gentry and C. R. Hemby of the City of Dallas Police Department apprehended appellant. At that time appellant was carrying a gun used in the robbery and had loose money stuffed in his shirt. After apprehension, appellant gave a voluntary statement which was admitted into evidence without objection. Appellant did not testify or offer any evidence in his behalf.

Appellant first contends that the testimony of Officer Gentry to the effect that he made a turn in the middle of the street, picked up a citizen with whom he had a conversation, and then made a radio broadcast that resulted in the apprehension of appellant, conveyed the impression to the jury that appellant had committed robberies other than the one for which he was on trial. Complaint is also made of the fact that nowhere in the testimony of Officer Gentry concerning finding loose bills upon appellant’s person at the time of his arrest was it established that the money had been taken in the robbery for which he was on trial.

At the time such testimony was admitted, no objections were made, therefore, nothing ;s presented for review.

We find the evidence sufficient to sustain the judgment. There being no errors reflected, the judgment is affirmed, and appellant’s motion for rehearing is overruled.


text:
    Patrick E. HOWE, Appellant, v. The STATE of Texas, Appellee.
    No. 36498.
    Court of Criminal Appeals of Texas.
    June 27, 1964.

      ' Paul W. Wisdom,-Jr., Dallas, for appellant. ! ■
    Henry Wade, Dist. Atty., Dallas, George Milner, Don Wills, Harryette Bercu and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is robbery; the punishment, 30 years in the penitentiary. Our prior opinion is withdrawn, and the following is substituted in lieu thereof.

There are no formal or informal bills of exception in the record.

According to the testimony of Mark H. Reynolds, checker at the Park-It Market, 4420 Worth Street, Dallas, Texas, on March 2, 19.63, at approximately 8:30 p. m., the appellant came into the store with a gun in his belt; handed Mr. Reynolds a sack, demanded the money in the cash register and obtained $170.00.

On March 26] 1963, Officers W. F. Gentry and A. R. Brock apprehended the appellant who was carrying the gun used in the-robbery arid had loóse money stuffed under his shirt. After apprehension,' appellant gave a voluntary statement which was admitted into evidence without objection. Appellant did not testify or offer any evidence in his behalf.

Appellant first contends that the testimony of Officer Gentry to the’ effect that he made a turn in the middle of the street, picked up a citizen with whom he had a conversation, and then made a radio broadcast that resulted in the apprehension of ap,-pellant, conveyed the impression to the jury that appellant had committed robberies other than the one for which he was on trial. Complaint is also made of the .fact that nowhere in the testimony of Officer Gentry concerning finding loose bills upon appellant’s person at 'the time of his arrest 'was it established that the money had been taken in the robbery for which he wás on triai. . '

At the time such testimony was admitted no objections were made, therefore, nothing is presented for review.

We find the evidence sufficient to sustain, the judgment. There . being, no errors reflected, the judgment is affirmed, and appellant’s motion for 'rehearing is overruled. ■ ■


text:
    Eugene Gasper KLECHKA, Appellant, v. The STATE of Texas, Appellee.
    No. 37101.
    Court of Criminal Appeals of Texas.
    June 27, 1964.

      No attorney of record on appeal.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Daniel P. Ryan, Jr., Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is unlawful possession of a firearm after being convicted of a felony; the punishment, one year.

There are neither formal nor informal bills of exception in the record, and there were no objections to the court’s charge. It was stipulated that appellant had previously been convicted of the offense of burglary on a date which was less than five years prior to the date charged in this indictment.

Officer Campbell of the Houston Police Department testified that he and his partner noticed an automobile “spinning its tires” and followed it as it made several turns at street intersections. Two persons were riding in the automobile and as the second turn was made, the appellant, who was riding on- the passenger side, drew his arm back and threw a pistol out of the window. The automobile was stopped, and the pistol was recovered.

The appellant was charged under Article 489c Vernon’s Ann.P.C. which provides in part that “It shall be unlawful for any person who has been convicted of burglary * * * and who has served a term in the penitentiary for such conviction, to have in his possession away from the premises upon which he lives any pistol, revolver or any other firearms capable of being concealed on the person.”

Those cases in which it was held that under Article 483 V.A.P.C. the momentary holding of a pistol did not constitute carrying on or about the person are not here applicable as Article 489c provides that the firearm need only be “in his possession.” We find the evidence sufficient to prove that appellant had the pistol in his possession. See Spriggins v. State, Tex.Cr.App., 372 S.W.2d 676, and Sutton v. State, 170 Tex.Cr.R. 617, 343 S.W.2d 452.

No reversible error appearing, the judgment is affirmed.


text:
    Troy Allan FULLER, Appellant, v. The STATE of Texas, Appellee.
    No. 37071.
    Court of Criminal Appeals of Texas.
    June 24, 1964.

      Brantley Pringle, Alfred J. Jackson, Jr., Fort Worth, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is assault with intent to murder with a conviction of an offense of like character alleged for enhancement; the punishment, 25 years.

Since there is little conflict in the evidence, it will be summarized. Appellant and his wife were estranged, and she was employed as a barmaid. At about midnight on the night in question, appellant appeared at the bar and announced his intention to take her home, but she declined. The injured party, the proprietor of the bar, instructed appellant to get from behind the bar and settle his argument elsewhere. Appellant pulled a pistol and fired it at the injured party, hitting him in the jaw, and the bullet lodged and remained in his head. Immediately following this, appellant shot and killed an off-duty policeman who was present in the establishment and who attempted to disarm him. Appellant fled, but was discovered lying in the grass a short distance from the bar. The injured party was hospitalized for eleven days.

The prior conviction was established. Appellant did not testify in his own behalf, but called his wife who gave substantially the same version of the assault upon the owner of the bar.

By brief, appellant complains of the admission of the evidence of the murder of the policeman. Under the rule announced in Ross v. State, 220 S.W.2d 137, and Kerrigan v. State, 167 Tex.Cr.R. 601, 321 S.W.2d 884, this evidence was clearly admissible because the two offenses were so interwoven as to be part of the same transaction.

Appellant complains that he was not permitted to show the result of the murder trial against him. The record reflects that the court sustained the State’s objection to the question, “and that trial resulted in a conviction ? ”, but nowhere in the record are we able to determine what the answer of the witness would have been, had the court permitted the question. In view of this fact and under the holdings of this Court in Deams v. State, 159 Tex.Cr.R. 496, 265 S.W.2d 96, and Brinkley v. State, 161 Tex.Cr.R. 413, 277 S.W.2d 704, we are in no position to say that the trial court erred in his ruling.

Several objections to the charge and requested charges appear in the transcript, but they fail to reflect that they were submitted to the trial court before the main charge was read to the jury. In fact, the statement of facts reveals that the trial was held on October 30, 1963, and the requested charges were not filed until March 27, 1964. The objections to the charge fail to reflect that they were ever presented to the trial court. Under the holdings of this Court in Manson v. State, 166 Tex.Cr.R. 514, 316 S.W.2d 414; Ayers v. State, 162 Tex.Cr.R. 586, 288 S.W.2d 511; Garza v. State, 159 Tex.Cr.R. 134, 261 S.W.2d 581; and Franklin v. State, 147 Tex.Cr.R. 636, 183 S.W.2d 573; nothing is presented for review.

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


author: BELCHER, Commissioner. WOODLEY, Presiding Judge

text:
    Frank Earl FLECK, Appellant, v. The STATE of Texas, Appellee.
    No. 36943.
    Court of Criminal Appeals of Texas.
    June 27, 1964.

      James Keith Marks, Dallas, for appellant.
    Henry Wade, Dist. Atty., Dallas, William F. Alexander, Frank Watts, A. D. Jim Bowie and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

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

The evidence of the state reveals that the appellant was positively identified as the same person who entered a bank about 2 p. m., June 28, 1963, with a cloth mask covering his nose and face and carrying a double barrel sawed-off shotgun in his right hand; that he approached the center of three adjoining cages occupied by paying tellers, threw a sack into the center cage and said “fill it up right now,” while pointing the gun toward the center teller and demanding that the other tellers pass their money to the center, which they did.

The witness Black, center teller, testified that the money was in his possession, and that without his consent and against his will he delivered more than $60,000 in money to the appellant because he was in fear of serious bodily injury and his life.

The'witness Crompton testified that while living in a trailer house rented by appellant, to which appellant had free access, he found a-locked metal box under the bed; that upon forcing the box open- he found in it a large sum of money (shown to be in excess of $12,000), various papers, checks, and car titles bearing appellant’s name. These were delivered to the officers. Two of the bills removed from the box bore certain identifying marks, and the evidence shows that they were among those bills placed in the sack during the robbery of the bank. A double barrel sawed-off shotgun was found in an automobile in a parking lot near the bank. The shotgun was identified by C. A. Burkhart as being the same shotgun he loaned appellant a short time before the bank was robbed, and that appellant had not returned the gun.

The appellant did not testify, but called several witnesses. He re-called two officers who testified that they searched the trailer house while appellant was in jail and never found a metal box. One of the officers stated that he looked under the bed from outside the trailer house and did not see a metal box under it. Another witness testified that as she was entering the bank she met a man, who was wearing a mask and carrying a gun, leaving the bank. In several ways, the physical description of the man and his clothing as given by her does not correspond with that of the state’s witnesses.

By informal and formal bills of exception, each of the following matters is presented and urged as grounds for reversal, and they are all considered in the light of the opinion in Moore v. State, Tex.Cr.App., 380 S.W.2d 626.

It is insisted that it was error for the trial court to reprimand appellant’s attorney in the presence of the jury.

During the cross-examination of a state’s witness the appellant’s attorney asked:

"Q. You’re an embezzler aren’t you, ]y[r_ * * * ”
State: “We object to that, Your Honor.”
Court: “I -sustain the objection.”
State: “And ask that the jury be instructed to disregard it.”
Court: “I sustain the objection, and I’ll fine you $100.00 if you ask that question again. Ask it once more and I’ll put you in jail for seventy-two hours.”
Appellant: “Your Honor, I don’t understand the nature of the objection that Mr. * * * ”
Court: “I told you at the beginning when you came to the bench this morning not to ask that question ■without removing the jury, and you understood what I meant, too.”
Appellant: “Note our exception to the Judge’s ruling.”

No objection was made to the remarks of the court. There was no request to instruct the jury not to consider the remarks, and no motion was made for a mistrial. Although counsel should not be reprimanded in the presence of the jury, the remarks of the court in the light of the previous instructions to counsel not to ask the question in the presence of the jury, and his failure to object when the remarks were made, reveal no reversible error.

It is contended that the trial court erred in admitting the $12,499.65 in money into evidence over his objection that it had not been connected in any way with the robbery of the bank, and was highly prejudicial.

Including the identification of the two bills found in the metal box in the trailer house rented by the appellant as the same bills that were placed in the sack appellant ordered filled before he carried it from the bank, the summary of the evidence introduced by the state, as herein shown, is sufficient to authorize the admission of the money in evidence.

Error is urged on the ground that the trial court denied appellant the right to adequately cross-examine Leonard and Burkhart, two state witnesses. Appellant’s claims for reversal, as stated in his brief, are that the court refused to permit him to perfect his bill of exception by showing why and how Leonard’s employment as a teller at the bank had been terminated; and the court also refused to permit him to perfect his bill of exception by showing how and why the witness Burkhart came into possession of a considerable sum of money shortly after the bank robbery.

There appears no- connection between the termination of Leonard’s employment at the bank, or Burkhart’s acquisition of a considerable sum of money shortly after the bank robbery, which he testified on voir dire that he had borrowed Oil a note, and the guilt or innocence of the appellant. Therefore no error is shown.

Appellant contends that it .was error for the trial court to refuse, to require F.B.I. agents, Clark and Brown, iappearing under subpoenas duces tecum, ,to- produce from the F.B.I. files photographs favorable to the appellant. ■ ■

In his brief the appellant states tha't “Subpoenas duces tecum were served upon F.B.I. agents Charles Brown and Kyle Clark, since the F.B.I! had used certain photographs for witnesses’ use in identifying the bank robber and the Appellant wanted such photographs produced tó show that the witnesses were not readily able to identify the Appellant Frank Earl Fleck as the person they believed to be the bank robber.”

We quote from the testimony of the witness Clark as to his reasons for the non-production of the records in question:

“THE COURT: I think he said he had been ordered not to ever divulge anything in the file of the F.B.I.
“Q. (By Appellant) You know what pictures I’m talking about, do you not?
“A. I assume you’re talking about all of the' pictures that were exhibited during the investigation of this case.
“Q. You know some of those pictures ?
“A. I have not observed any of the pictures.
“APPELLANT: We urge the Court at this time to make Mr. Clark get those pictures and bring them down here in answer to my subpoena duces tecum, so that we can show the jury those pictures, because of the fact that he does have the control of that file, and there is no other way that we can get at those pictures that were exhibited.
“THE COURT: Motion is denied.”

Agent Brown testified that he did show some of the witnesses certain pictures from the F.B.I. files but that no witness was able to identify any of them as being the robber.

The evidence reveals that the bank was robbed June 28, 1963, and the appellant was arrested August 22, 1963, and indicted for bank robbery on September 4, 1963. Between the date of the robbery and the date of the appellant’s arrest there was a continuous and intensive investigation carried on by the officers to identify and apprehend the person who committed the robbery. During the period of investigation, the three bank tellers and other employees of the bank who were present in the bank at the time of the robbery were interviewed, re-interviewed, and had exhibited to them numerous photographs by the officers, in an effort to have the robber identified from the photographs.

To recapitulate, none of the witnesses identified any person whose photograph was exhibited to them for examination as the person who robbed the bank. According to the record no one identified the appellant, from a picture, as the robber until after his arrest. Neither of the officers, Clark or Brown, was asked if appellant’s picture was among those shown to the witnesses.

The subpoenas duces tecum for the witnesses Clark and Brown are not contained in the record. There is no showing as to the identity of the photographs sought by the subpoenas except those that were favorable to the appellant. This delegation of the officers to act for the appellant in selecting those photographs favorable to him was not obligatory.

Assuming that the trial court had the authority to order the photographs to be produced in court, it is concluded that the uncertainty of the demand for photographs, and the failure of any witness to identify the appellant from photographs as the robber before his arrest, show no reversible error by the court’s refusal to order them produced. Ex parte Gould, 60 Tex.Cr.R. 442, 132 S.W. 364, 31 L.R.A..N.S., 835.

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

Opinion approved by the Court.

WOODLEY, Presiding Judge

(concurring).

The Formal Bills of Exception were filed with the clerk on February 19, 1964, and were examined and approved by Trial Judge J. Frank Wilson on February 28, 1964, “ * * * with the following explanation, and qualification. Any matter of fact or recitation set forth in the Bill which are at variance from the facts shown in the official record in this case as prepared by the Court Clerk and the Court Reporter are not certified by- me as true, but are certified by me as being contention— of the defendant.”

The appellant took no exception to the court’s qualifications, nor did he agree thereto and he filed no bystander’s bills. By the qualifications of his formal bills, the appellant was relegated to his informal bills.

If, however, the court’s qualification was “tantamount to no action at all,” as held by the majority in Moore v. State, Tex.Cr.App., 380 S.W.2d 626, the formal bills must be considered as approved without qualification and as certifying reversible error.

Bill No. 1 considered as approved without the court’s qualification certifies that the court deprived the defendant of due process of law under the Fifth and Sixth and Fourteenth Amendments of the United States Constitution and Art. 1, Sec. 10 and Sec. IS of the Texas Constitution, Vernon’s Ann.St., and Sec. 2(a) of Art. 759a of Vernon’s Annotated Texas Code of Criminal Procedure.

Also it certifies that the rejected testimony the defendant offered and sought to offer of the witness Jerry Leonard “ * * would have been admissible to show interest, bias and motive by the said Jerry Leonard to testify falsely against the defendant, and such facts which defendant sought to offer would have impeached the testimony of the said Jerry Leonard.”

Bill No. 3, considered as approved without qualification, certifies that in reprimanding defendant’s counsel in front of the jury, the defendant’s rights were prejudiced in the manner stated “and the harmful effect of (the court’s) comments were such that they could not be cured or removed by instructions to the jury.”

Bill No. 4, as originally presented, certifies that by refusing to require the F.B.I. agents to produce from their files material evidence favorable to the defendant, in the form of photographs, “ * * * the defendant was harmed and was such error on the part of the Court as to require a reversal of this cause.”

Bill No. S, without the court’s qualification, certifies that the trial court allowed introduction over defendant’s objection of some $12,499.65 in currency “ * * * and in as much as there does not appear anywhere in the record any direct evidence showing said currency to have ever been in the possession of the defendant, such admission of the currency was such error as to deny defendant a fair trial.”

It is the view of the writer that the Moore case is wrong and the majority opinion herein is correct in not considering the Formal Bills of Exception as though approved without qualifications.


author: McDonald, judge.

text:
    Aaron JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 37092.
    Court of Criminal Appeals of Texas
    June 27, 1964.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is possession of equipment and materials for the use and manufacture of illicit whiskey; the punishment, a fine of two hundred and fifty dollars and confinement in jail for ninety (90) days.

No statement of facts accompanies the record.

Appellant presents one formal bill of exception wherein the trial court certifies error. “* * * Defendant was unduly influenced by fear and coercion to enter his plea of guilty * *

We also observe that our able State’s Attorney confesses error.

In view of this certification, the judgment is reversed and the cause remanded.


author: DICE, Commissioner. WOODLEY, Presiding Judge MORRISON, Judge. WOODLEY, Presiding Judge

text:
    Ormond MOORE, Appellant, v. The STATE of Texas, Appellee.
    No. 36914.
    Court of Criminal Appeals of Texas.
    May 27, 1964.
    Rehearing Denied June 27, 1964.
    Glenn Polk, Dallas, for appellant.
    Henry Wade, Dist. Atty., Stephen W. Guittard, Edwin L. Davis, W. John Allison, Jr., and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for murder; the punishment, death.

On the night in question, the deceased and one James Hill were riding together in the city of Dallas in a 1956 Ford automobile. The deceased was driving the automobile. Around 1:30 a. m., as the deceased’s automobile was stopped for a stop sign at the intersection of Spring and Second Avenue, a 1961 Pontiac automobile, with five male occupants and being driven by appellant, bumped into it from the rear. The deceased got out of his automobile, walked back to the Pontiac, and had some words with the appellant. After talking to appellant, the deceased returned to his automobile and drove away with his companion to a cafe. Later, around 2 a. m., as the deceased and his companion had started home and were stopped at a stop sign at Oakland and Mc-Dermott Street, the Pontiac automobile driven by appellant again bumped into the rear of deceased’s automobile. Thereupon, the deceased got out of his automobile and, when he had taken two steps, some shots were fired from the driver’s side of the Pontiac automobile. The deceased fell, mortally wounded, to the ground, with a gunshot wound in the right chest. His companion, Hill, then alighted from the automobile and he, too, was shot, in the right shoulder.

It was shown' by the evidence that the fatal shot which struck the deceased was fired by the appellant and that the shot which struck James Hill was fired by one of appellant’s companions, James Stevens.

In presenting its case in.chief, the state was permitted to show by the witness James Louis Ellis, one of the occupants in the automobile driven by appellant, that, prior to the first meeting of appellant and the deceased on the night in question, the appellant and his companions had a difficulty in the vicinity of Fair Park with some other parties who were riding in a 1962 Chevrolet Impala automobile.

Over appellant’s objection that such constituted proof of an extraneous offense, the witness Ellis testified that before appellant and his companions drove up behind the deceased’s automobile the first time, they had driven alongside an Impala automobile in which some men and women were riding. At such time, appellant said to the occupants of the Impala: “Let me have those women * * * You punks, let us have those women.” A man in the Impala drew a gun, pointed it in the air, and said: “Who’s a punk * * * Who are you calling punks ?” Appellant then fired two shots at the Impala, whereupon the Impala was driven away, and was followed by appellant and his companions. During the chase, appellant gave the gun to James Stevens, who was riding on the back seat. While being pursued, the Impala stopped and the occupants got out and started running. James Stevens then proceeded to shoot at those fleeing from the Impala with the gun which appellant had given him. After shooting at them appellant and his companions drove away to get some more shells and shortly thereafter bumped into the deceased’s automobile the first time.

The witness’s testimony relative to appellant and his companions shooting at the occupants of the Impala automobile clearly constituted proof of an extraneous offense.

When offered at the trial, the state insisted that the testimony was admissible under Art. 1257a, Vernon’s Ann.P.C., to show the condition of appellant’s mind at the time he shot the deceased. In brief and oral- argument before this court, it is the state’s contention that the shooting of the occupants of the Impala and of the deceased was all one continuous transaction and the testimony was therefore admissible as part of the res gestae.

We are unable to agree that the proof of appellant shooting into the Impala automobile was admissible under Art. 1257a, supra, to show the condition of his mind at the time he shot the deceased. Art. 1257a, supra, which provides:

“In all prosecutions for felonious homicide the State or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the homicide, which may be considered by the jury in determining the punishment to be assessed, * * * ” (Emphasis, supplied.)

docs not extend the rules of evidence touching the admissibility of facts bearing upon the accused’s state of mind. Howard v. State, 122 Tex.Cr.R. 371, 55 S.W.2d 1048. The shooting into the Impala at a different place and time was a separate and distinct act from the shooting of the deceased. Proof of such act could show neither ill-will nor malice toward the deceased, who was a stranger to appellant. Such facts distinguish this case from Chavira v. State, 167 Tex.Cr.R. 197, 319 S.W.2d 115, where the acts of the accused were a part of the ■same transaction and held to be admissible •on the issue of both intent and identity •of the accused in the shooting of the deceased. Nor do we agree that the shooting into the Impala and the killing of the deceased was one continuous act. To the contrary, it appears that there was no connection between the two acts, but that they were separate and distinct acts. The shooting into the Impala not being a part of the res gestae of the killing of the deceased, the court fell into error in permitting the state to make such proof. McRae v. State, 101 Tex.Cr.R. 411, 275 S.W. 1067; Chester v. State, 108 Tex.Cr.R. 150, 300 S.W. 57; Glover v. State, 125 Tex.Cr.R. 605, 69 S.W.2d 136; Lawrence v. State, 128 Tex.Cr.R. 416, 82 S.W.2d 647; Maddox v. State, 134 Tex.Cr.R. 289, 115 S.W.2d 644; Mounts v. State, 148 Tex.Cr.R. 177, 185 S.W.2d 731. Appellant was entitled to be tried not as a criminal, generally, but upon the charge against him. It cannot be said that the proof of the extraneous offense was- not prejudicial to appellant.

Formal Bill of Exception No. Nine, as presented to the trial judge by appellant, certifies that in his closing argument to the jury the assistant district attorney stated:

“ ‘But this murderer, who sits over here, Hidden by his counsel from the scrutiny of the jury, Hidden by his counsel.1 ”
“ ‘Mr. Polk, if I had a client that was as guilty as your client is, a murderer as cold blooded, I would hide him too.’ ”
“ ‘You’ve seen him hide behind his counsel as he came into this courtroom.’ ”
“ ‘It was a killing for kicks, if you please, and that was all.’ ”
'The killing was just for kicks, joy killing.’”

It is further certified in the bill that:

“All of which prejudicial and highly inflammatory arguments of the State’s Attorney, Eddie Davis, was outside of the record, not in response to anything the Defendant had said or done, and was continuously repeated while Defendant’s objections were being sustained by the Court, and the record will reflect that the foregoing prejudicial argument as well as numerous other personal vilifications and abuse of Defendant’s counsel with which the record is replete, shows peradventure of a doubt that the Defendant suffered irreparable damage and injury which could not be lessened or mitigated by the Court’s rulings.”

In signing the bill, the trial judge certifies that the following action was taken thereon :

“The foregoing Bill of Exceptions was presented to me in due time and was approved and ordered filed, subject to the following qualifications:
“The Court does not certify to the truthfulness of the contents therein but he does certify that they are only contentions of the Defendant.
“/s/ Joe B. Brown “Judge”

Under the provisions of Art. 760d, Vernon’s Ann.C.C.P., it is the duty of the trial judge to act upon the bills of exception, filed by a defendant, within one hundred days after notice of appeal is given. His action shall consist of either approving the hills or refusing the same with the court’s reasons noted thereon.

In the instant case the court, in effect, certified that he approved the bill but did not approve it. The court’s action was tantamount to no action at all. Under the decisions of this court, where no action is taken by the trial judge on a bill of exception within the time prescribed it must be considered approved by the court. Pennington v. State, 171 Tex.Cr.R. 130, 345 S.W.2d 527, 85 A.L.R.2d 1130; Damaris v. State, Tex.Cr.App., 363 S.W.2d 464. Treating the bill as approved, it certifies argument which was improper and obviously prejudicial to appellant.

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

Opinion approved by the court.

WOODLEY, Presiding Judge

(dissenting).

This conviction is set aside, in part at least, upon the erroneous conclusion that the trial court has certified as a fact that the remarks of the assistant district attorney, Eddie Davis, set out in the majority opinion and in Formal Bill of Exception No. 9, were prejudicial and highly inflammatory; were outside the record and that such argument “as well as numerous other personal vilifications and abuse of defendant’s counsel with which the record is replete, shows peradventure of a doubt that the defendant suffered irreparable damage and injury which could not be lessened or mitigated by the Court’s rulings.”

It should be apparent that had the trial judge entertained such view of the argument he should and no doubt would have declared a mistrial or granted a new trial.

It should also be apparent from the trial judge’s certificate quoted in the majority opinion that he refused to certify that such were facts and certified that such were only contentions of the defendant.

The majority opinion is in error in concluding that the trial judge’s approval of the bill with qualifications was tantamount to no action at all, and is also in error in assuming that Art. 760d V.A.C.C.P. has been or may be construed as authorizing or requiring that Bill of Exception No. 9 be treated as approved without qualification.

Bill No. 9 was presented to the trial judge and approved with qualifications in a manner authorized by Art. 667 V.A.C.C.P. and the applicable Rules of Civil Procedure. It was filed with the clerk as so qualified and there was no exception to the qualification.

The only portion of Art. 760d V.A.C.C.P. which has any bearing on a bill of exception presented to and approved by the trial judge with qualifications to which there was no exception, is the last paragraph which reads:

“Nothing in this Act shall prevent the defendant and the trial judge from agreeing upon or to the correctness of the bill of exception and the filing thereof in the trial court within ninety days from the date notice of appeal was given. Such a bill of exception shall be considered as approved by the trial judge.”

Bill of Exception No. 9 may not be treated as approved without qualification, but must be considered as qualified by the trial judge under the following authorities :

The trial court’s qualification of a bill of exception becomes a part of it. Townsley v. State, 103 Tex.Cr.R. 508, 281 S.W. 1054.

The appellate court will presume qualifications in duly certified bill of exception were made with the consent of the defendant or his counsel unless the contrary appears over the certificate of the trial judge. Ray v. State, 116 Tex.Cr.R. 575, 28 S.W.2d 1084; Blackshear v. State, 137 Tex.Cr.R. 264, 128 S.W.2d 1205.

To warrant appellate court in rejecting matters contained in qualifications to bill of exception there must have been an exception taken thereto, Jenkins v. State, 118 Tex.Cr.R. 556, 40 S.W.2d 109.

When bill of exception is accepted with qualifications thereto, without objection, appellant impliedly admits truthfulness of such qualifications. Court of Criminal Appeals is bound by qualifications to bill of exception which have not been objected to. Chandler v. State, 103 Tex.Cr.R. 311, 280 S.W. 817.

When the defendant accepts and files a qualified bill, he is bound by the qualification which will not only be accepted by the appellate court as correct but will also control insofar as it is in conflict with the bill prepared by the defendant. Clarich v. State, 137 Tex.Cr.R. 282, 129 S.W.2d 291.

The appellate court will not entertain a motion to strike from a bill qualifications and explanations. 5 Tex.Jur.2d 298, Sec. 181; Blain v. State, 34 Tex.Cr.R. 448, 31 S.W. 368; Pool v. State, 48 Tex.Cr.R. 478, 88 S.W. 350.

The court may qualify a bill by stating that he does not certify the truthfulness or correctness of the grounds of exception set out therein. Briscoe v. State, 37 Tex.Cr.R. 464, 36 S.W. 281.

Belcher v. State, 96 Tex.Cr.R. 561, 258 S.W. 815, where the judge endorsed on the bill: “The court does not certify that the above proceedings were had, nor does the court certify that any of the matters alleged therein are true, nor that there was any basis for supposing them to be true.” The bill was considered as so qualified over the defendant’s insistance that a trial judge cannot approve a bill in such manner as to destroy it.

I respectfully dissent.

ON STATE’S MOTION FOR REHEARING

MORRISON, Judge.

We remain convinced that this case must be reversed because of the admission of the evidence relating to the extraneous Impala incident.

The majority has reconsidered Bill of Exception No. 9 and has concluded that while it certifies reversible error, in fact no error is shown because the record contains the jury argument, and it shows that timely objection was not made. We refuse to be bound by the Court’s certification of error in the formal bill of exception where the record reflects the contrary. Free v. State, 165 Tex.Cr.R. 374, 307 S.W.2d 808; Tonnan v. State, 171 Tex.Cr.R. 570, 352 S.W.2d 272. The majority remains convinced that the Court’s certificate in the bill constituted no action at all. He merely stated, “The court does not certify to the truthfulness of the contents therein, but he does certify that they are only the contention of the Defendant.”

The State’s motion for rehearing is overruled.

WOODLEY, Presiding Judge

(dissenting).

The opinion on rehearing errs in again disregarding the fact shown by the record that Bill of Exception No. 9 was not filed with the clerk as authorized by Art. 760d V.A.C.C.P., but was presented to the trial judge who qualified it and it was then filed with the clerk with the court’s qualification as a part of it.

The majority now base the reversal solely upon the admission of evidence of an extraneous offense. They ’now conclude that there was no reversible error in the argument, but they repeat the erroneous holding announced in the opinion to which I originally dissented — that the trial court’s qualification to Bill of Exception No. 9 “was tantamount to no action at all,” and the bill certifies reversible error.

The basis for holding that the certification of error in Bill No. 9 is not binding on this Court is that the informal bill in the statement of facts reflects the absence of-a timely objection.

If the majority is correct and bills of exception certifying error are to be considered as approved by the trial judge despite his notation thereon that the contents of the bill “are only contentions of the defendant,” Bill of Exception No. 9 certifies reversible error.

I respectfully dissent (1) to the failure of the majority to recognize and treat the bill of exception as qualified by the trial judge before it was filed; (2) to the holding that the trial judge’s qualification of Bill of Exception No. 9 “was tantamount to no action at all,” and (3)'to the holding that in the ábsence of timely objection shown elsewhere in the record reversible error is not shown by “highly prejudicial and inflammatory statements to the jury, which were outside of the record, not provoked or in response to any argument of Defendant’s counsel and which amounted to vilification and abuse not only of the Defendant but his Attorney as well when he time and again abused Defendant and his Attorney, * * * All of which prejudicial and highly inflammatory arguments of the State’s Attorney, Eddie Davis, was outside of the record, not in response to anything the Defendant had said or done, and was continuously repeated while Defendant’s objections were being sustained by the Court.”

The bill of exception without the qualification of the trial court certifies that such an argument was made. It further certifies “ * * * that the foregoing prejudicial argument as well as numerous other personal vilifications and abuse of Defendant’s counsel with which the record is replete, shows peradventure of a doubt that the Defendant suffered irreparable damage and injury which could not be lessened or mitigated by the Court’s rulings.” The absence of a timely objection does not show this certification to be erroneous.


author: WOODLEY, Presiding Judge.

text:
    W. G. HODGES, Appellant, v. The STATE of Texas, Appellee.
    No. 37040.
    Court of Criminal Appeals of Texas.
    June 27, 1964.
    No attorney of record on appeal. ■
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is hunting deer at night; the punishment, assessed by the court, a fine of $200 and 60 days in jail.

The record contains no statement of facts and there are no bills of exception. Nothing is presented for review.

The judgment is affirmed.