author: CALVERT, Chief Justice.

text:
    DELHI-TAYLOR OIL CORPORATION, Petitioner, v. Will Ray HENRY, Respondent.
    No. A-11582.
    Supreme Court of Texas.
    May 31, 1967.
    Rehearing Denied July 14, 1967.

      Keys, Russell, Watson & Seaman, James C. Watson, Corpus Christi, for petitioner.
    Hubert L. Stone, Jr., Auforth & Bonni-well, Fred C. Auforth, Corpus Christi, for respondent.
   CALVERT, Chief Justice.

We granted writ of error in this case to review the holdings of the court of civil appeals with reference to the duty owed by an occupier of land to warn invitee-employees of an independent contractor of dangers on the premises which are not open and obvious.

Respondent, Will Ray Henry, an employee of Roy Vickers Lease Service, an independent contractor, suffered severe injuries while prosecuting' the work of his employer on premises under the control of petitioner, Delhi-Taylor Corporation. Henry was engaged in welding operations when a dragline bucket, operated by another Vickers’ employee, punctured one of Delhi-Taylor’s pipelines which contained toluene, a highly flammable gas. The gas escaped and drifted into a ditch where Henry was working with his welding torch. The gas ignited and Henry was badly burned. His suit for damages was tried to a jury. The jury found that Delhi-Taylor negligently failed to inspect the toluene line to determine the amount of pressure therein before the dragline was used to uncover it, and negligently failed to release the pressure on the toluene line before the dragline was used to uncover it, and further found that such negligent omissions were proximate causes of the plaintiff’s injuries. The trial court rendered judgment on the verdict awarding Henry a recovery of his damages as found by the jury. The court of civil appeals affirmed. 403 S.W.2d 885. We reverse the judgments of the courts below and here render judgment that the plaintiff take nothing.

Delhi-Taylor owns a refinery at Corpus Christi and owns and operates sixteen pipelines which carry various hydrocarbons from the refinery to the docks on the ship channel. The lines varied from two to sixteen inches in diameter and were buried in the ground at depths varying from four inches to ten feet. Roy Vickers Lease Service was employed by Delhi-Taylor to extend the casings around the pipelines where such lines passed under a private roadway. A dragline was used to uncover a twenty-four inch casing by digging a ditch three feet wide, ten feet deep and twenty-seven feet long. Some of the dirt removed in cutting the ditch was dumped temporarily over some of the other pipelines. Henry went into the deep ditch to weld the casing. The dragline operator then began to use the machine to remove the dirt covering the other lines. It was during this operation that the line containing the toluene was punctured. Toluene was not under pump pressure in the pipeline when it was punctured; that which was in the line was residual and the pressure which caused it to spurt out of the line was static pressure, with some slight pressure from thermal expansion.

Vickers and his employees were on the premises as business invitees of Delhi-Taylor. The law is now well established in this State that an owner or occupier of land may relieve himself of liability for harm to his invitees from dangerous conditions on the premises which are not open and obvious by taking proper precautions to protect them from the dangers or by warning them thereof. Halepeska v. Callihan Interests, 371 S.W.2d 368 (Tex.Sup.1963); Western Auto Supply Co. v. Campbell, 373 S.W.2d 735 (Tex.Sup.1963). The law is equally well established that the owner or occupier owes no duty to his invitees either to eliminate or to warn of dangerous conditions on the premises which are as well known to them as they are to him. McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954); Hall v. Medical Bldg, of Houston, 151 Tex. 425, 251 S.W.2d 497 (1952). In this context of established law, Delhi-Taylor contends here, as it did in the court of civil appeals, that although it may have failed, as the jury found, to take reasonable precautions to protect Henry from the danger of gas escaping from its pipelines, it is nevertheless not liable to Henry because its duty to warn him of the danger was fully discharged by warning given to and knowledge on the part of Henry’s employer and his employer’s foreman.

The court of civil appeals seems to have assumed that an adequate warning of the danger given to Vickers or to Vickers’ foreman would have discharged Delhi-Taylor’s duty to Henry; but that court held that the evidence did not establish as a matter of law that the warning given was adequate, and that Delhi-Taylor waived its right to a fact finding on adequacy by failing to request a jury issue thereon. We do not agree with the holding of the court of civil appeals. It is our opinion that the evidence establishes conclusively that the dangerous condition on the premises which resulted in injury to Henry was, in the light of the warning given, as well known to Vickers and his superintendent-foreman, Bernie B. Smith, as it was to Delhi-Taylor.

Both Vickers and Smith had many years’ experience in working on and around pipelines carrying petroleum products. Vickers had devoted a good bit of his time during fifteen years in the business to work which “necessitated the uncovering of buried lines,” and was “thoroughly familiar with the work.” According to him, it is “a fairly common practice” to uncover pipelines with a dragline, and “lots of times” he had used a dragline to uncover “loaded lines” or “gas lines under pressure.” Smith had been district superintendent for Vickers for five years and had seventeen years’ experience working around loaded pipelines. He had worked for a number of employers and had been a pipeline superintendent where he “had a double dose of loaded lines.” According to Smith, the precautions to be taken when working around pipelines are standard, i. e., “ * * * any existing line, you assume to be loaded * *

The very work which Vickers undertook for Delhi-Taylor was the uncovering of the dock loading lines and the placing of the lines in casings. Both Vickers and Smith were shown a plat of the lines before the work began. They knew the horizontal position but not the depth of the several lines. Smith knew of the general location of the lines from work done at the Delhi-Taylor plant on a prior occasion. He testified that everybody who worked around there knew the area as “pipeline alley.”

Robert F. Wright who represented Delhi-Taylor in negotiating the contract with Vickers, testified that he made clear to Vickers and Smith that some of the lines would be in use carrying inflammable hydrocarbons while the work was being done ; and that both were told that they should treat all the lines “as though they were loaded” and “as if they were under pressure.” His testimony was not denied by either Vickers or Smith. Indeed, Smith confirmed the warning; he testified that Mr. Perkinson, Delhi-Taylor’s foreman, “certainly did” make it “pretty clear that those lines were loaded”; that “Everybody knew it.” As a matter of fact, Smith testified that he warned the dragline operator that “the lines were loaded,” which, “in pipeline work,” means “that the line is dangerous” and can be carrying any kind of “inflammable material,” including “gasoline or natural gas.”

On the basis of the evidence set out, we hold that the warning given to-Vickers and his foreman that the lines should be treated “as though they were loaded,” when considered with their knowledge of the condition of the premises and the dangers inherent therein, was adequate to discharge Delhi-Taylor’s duty to Vickers and his foreman. This holding brings us face to face with the question of whether an adequate warning to an independent contractor or one supervising his work will discharge the duty of the landowner or occupier to warn the employees of the independent contractor; and we hold it will.

Our holding here is diametrically-opposed to the holding made in Galveston-Houston Elec. Ry. Co. v. Reinle, 113 Tex. 456, 258 S.W. 803 (1924); and to hold as we do in this case, we must, and do, overrule that decision. In that case Reinle, an. employee of an independent contractor performing services for Galveston-Houston Electric Ry. Co., was electrocuted when a boom he was operating came in contact with, or in close proximity to, an uninsulated high-voltage wire. We gave the following answer to a question certified by the court of civil appeals (258 S.W. 806) :

“The court answers that it was the duty-of the interurban company to exercise ordinary care to give Reinle notice or warning of the danger-of the boom coming in contact with, or in close proximity to, the uninsulated high-voltage wires, notwithstanding Reinle was an employee not of the interurban company, but of the independent contractor, who possessed full knowledge of the danger.”

Our opinion in Reinle and the record in the case on file with this court show that the issue decided was squarely presented. There is no sound basis for distinguishing that case from the instant case. Reinle must either be followed or overruled. With due respect for the rule of stare decisis, we are convinced that the rule of Reinle imposes an unfair and, indeed, an intolerable burden on an owner or occupier of land who employs an independent contractor to do work or to perform services on the premises. While an owner owes a duty to employees of an independent contractor to take reasonable precautions to protect them from hidden dangers on the premises or to warn them thereof, an adequate warning to or full knowledge by the independent contractor of the dangers should and will be held to discharge the landowner’s alternative duty to warn the employees.

There is no need to write at length in justification of our holding. It is in harmony with late court of civil appeals decisions. See Tyler v. McDaniel, 386 S.W.2d 552 (Tex.Civ.App.— Dallas 1965, writ ref’d n. r. e.); Texas Elec. Serv. Co. v. Holt, 249 S.W.2d 662 (Tex.Civ.App.— Fort Worth 1952, writ ref’d n. r. e.). It is in harmony with two late decisions of the United States Court of Appeals for the Fifth Circuit. See Gulf Oil Corp. v. Bivins, 276 F.2d 753 (5th Cir. 1960); Turner v. West Texas Util. Co., 290 F.2d 191 (5th Cir. 1961). It is also in harmony with a number of decisions from other jurisdictions. See Storm v. New York Tel. Co., 270 N.Y. 103, 200 N.E. 659 (1936); Schwarz v. Gen. Elec. Realty Corp., . 163 Ohio St. 354, 126 N.E.2d 906 (1955); Levesque v. Fraser Paper Ltd., 159 Me. 131, 189 A.2d 375 (1963); Hunt v. Laclede Gas Co., 406 S.W.2d 33 (Mo.Sup.1966). The rationale for the holding can be found in the cited cases.

On many projects there are a number of independent contractors, each employing scores of workmen. The identities of some of the workmen will change from day to day. To impose the duty on the owner or occupier of the premises to know and to warn every workman on the project of a dangerous condition would subject him to an impossible burden. Moreover, an independent contractor owes a duty to his employees to warn them of dangers on the premises where they are required to work which are known to him. This duty was recognized in Reinle. 258 S.W. 803, 805. The owner or occupier should not be required to foresee and anticipate that the contractor will not discharge his duty to his own employees, and there is no sound basis for requiring that the employees should be twice warned.

The burden was on Henry to establish that Delhi-Taylor breached a duty owed him. McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954). He obtained jury findings that Delhi-Taylor was negligent in failing to take precautions to protect him from the danger of gas escaping from its pipeline. These findings did not establish that Delhi-Taylor had breached a duty owed him inasmuch as the duty owed him could be discharged by warning him of the danger. Not only did Henry fail to obtain a jury finding of breach of the duty to warn, but the evidence establishes conclusively, as pointed out herein, that the duty was not breached. The judgment in Henry’s favor cannot stand.

The judgments of trial court and court of civil appeals are reversed and judgment is here rendered that plaintiff take nothing.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Donato RAMUNDO v. CITY OF SAN ANTONIO.
    No. B-133.
    Supreme Court of Texas.
    April 26, 1967.
    Rehearing Denied June 21, 1967.
    Stahl & Sohn, A. R. Sohn, San Antonio, for petitioner.
    Lang, Byrd, Cross, Ladon & Oppenheimer, Bernard Ladon, San Antonio, for respondent.
   PER CURIAM.

In this case the Court of Civil Appeals has reversed the judgment of the trial court in favor of Petitioner, Donato Ramundo, against Respondent, the City of San Antonio, and rendered judgment that Petitioner take nothing. Tex.Civ.App., 411 S.W.2d 428. The judgment of the Court of Civil Appeals was based upon the majority holding, with which we disagree, that Petitioner was precluded from a recovery against the City because the notice of injury filed with the City did not meet the requirements of the City Charter. However, the judgment of the Court of Civil Appeals was correct for other reasons urged by the City as appellant in the Court of Civil Appeals and not reached by that Court. The opinion of the intermediate court notes that the allegations of Petitioner attributed his injuries to the negligence of the operator of a city bus; that the jury absolved the bus operator of negligence; that by an issue submitted at the request of the City [over the objection of Petitioner] the jury found that a city policeman stopped his motorcycle suddenly in front of the bus without warning but refused to find that such was not the sole proximate cause of Petitioner’s injuries; and that the judgment of the trial court for Petitioner was necessarily based on the findings relative to the conduct of the policeman. The jury findings with respect to the policeman will not support the judgment of the trial court for Petitioner. See Rule 279, Texas. Rules of Civil Procedure. The issues were submitted at the request of the City as a defensive issue with the burden of proof so placed. All of the issues upon which Petitioner relied for recovery were found against him.

The application for writ of error is refused, no reversible error.


author: HAMILTON, Justice. NORVELL, Justice.

text:
    MASSACHUSETTS BONDING AND INSURANCE CO. et al., Petitioners, v. ORKIN EXTERMINATING COMPANY, Inc., Respondent.
    No. A-11416.
    Supreme Court of Texas.
    May 31, 1967.
    Rehearing Denied July 19, 1967.

      The Kempers, T. M. Kemper, John D. Richardson, Houston, Graves, Dougherty, Gee & Hearon, J. Chrys Dougherty, Austin, for petitioners.
    Butler, Binion, Rice, Cook & Knapp, Robert H. Singleton, Houston, Wilson, Kendall, Koch & Randle, Will Wilson, Austin, for respondent.
   HAMILTON, Justice.

This a suit on a retrospective rating plan general liability policy. Both petitioners, defendants and appellees below, and respondent, plaintiff and appellant below, filed motions for summary judgment. The trial court granted petitioners’ motion and rendered a take nothing judgment. The Court of Civil Appeals reversed and rendered judgment for respondent in the sum of $54,621, plus interest. 400 S.W.2d 20. Petitioners here are Massachusetts Bonding, hereinafter referred to as the Company, and its successor in interest.

Gulf Coast Rice Mills sued respondent Orkin for damages arising from the application of Lindane, a pesticide, to the rice mill’s facilities. Judgment in favor of Rice Mills became final. Orkin Exterminating Company, Inc. v. Gulf Coast Rice Mills, 362 S.W.2d 159 (Tex.Civ.App.1962, writ ref’d n. r. e.), cert. den. 375 U. S. 57, 84 S.Ct. 175, 11 L.Ed.2d 122 (1963). In that case the jury found that Orkin was negligent in the application of Lindane in August of 1955 to the rice and premises of Gulf Coast, which negligence was the proximate cause of damage to the rice. Orkin paid the judgment and demanded reimbursement from petitioner Massachusetts Bonding under its multi-state general liability policy issued for the period from January 1,1955 to January 1, 1956.

Some pertinent provisions of the policy are as follows:

“Coverage C — Property Damage Liability — Except Automobile.

“To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident.
“9. Notice of Accident. When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses.” (Emphasis added.)

Gulf Coast filed suit against Orkin on June 25, 1957. On July 22, 1957, a “Non-Waiver Agreement” was signed by Orkin as follows:

“It is hereby agreed by and between the Massachusetts Bonding and Insurance Company and the Orkin Exterminating Company, Inc. that no action heretofore or hereafter taken by the Massachusetts Bonding and Insurance Company shall be construed as a waiver of the right, if any, of the Massachusetts Bonding and Insurance Company to deny liability to the Orkin Exterminating Company, Inc. under a policy of insurance which is claimed by the Orkin Exterminating Company, Inc. to cover claims asserted or which may hereafter be asserted by R. L. Williams and J. M. Chumney, doing business as a partnership under the name of Gulf Coast Rice Mills, as either the bases of the suit brought in its name as Plaintiff in Cause No. 488,534 against Orkin Exterminating Company, Inc. as Defendant therein in the District Court of Harris County, Texas, or otherwise.
“It is also agreed that by the execution of this agreement the Orkin Exterminating Company, Inc. does not thereby waive any right under the said policy. * * * ”

The Company denied liability on two grounds: First, it asserted that the application of Lindane was not an “accident” within the coverage of the policy; it further contended that, even if it was an “accident,” notice thereof was not given “as soon as practicable,” for the incident occurred in August of 1955 and notice was not given until May 24, 1956. Orkin contends that the incident was an “accident” and that the Company waived the defense of late notice by charging and collecting premium based on the Gulf Coast claim. There seems to be no contention that notice of the alleged “accident” was given as “soon as practicable.”

The Court of Civil Appeals rendered summary judgment for respondent, holding that the application of Lindane was an accident, and that as a matter of law petitioners waived the notice of accident requirement by charging a retrospective premium based on the Gulf Coast claim. Petitioners’ points of error here are, (1) petitioners’ action with regard to the retrospective rating plan of premium payment was not a waiver or estoppel; (2) the non-waiver agreement precluded any waiver or estoppel; (3) the damages for which Orkin was held liable were not “caused by accident” within the coverage of the policy; (4) in the alternative, triable issues of fact were raised by the pleadings, depositions, admissions and affidavits. We shall consider petitioners’ points of error in that order.

Petitioners’ first point presents the question of whether the retrospective premium computations constituted waiver of the notice of accident or an estoppel to assert breach thereof, as a matter of law.

The process by which retrospective premiums were computed under the policy is rather complex, but briefly it involved re-computation of premiums based on incurred losses: “Losses actually paid,” “reserves for unpaid losses as determined by the Company,” and “allocated loss expense.” Two such computations are relevant here, the first in August or September of 1956 and the second in August or September of 1957.

The Court of Civil Appeals held:

“[P]rior to the time appellee secured the nonwaiver agreement it had charged and collected a premium $1,000.00 in excess of that it would have been entitled to collect had not this claim been considered an ‘incurred loss’. At the end of eighteen months after the termination of the first policy year it had recomputed the premium as required by the policy because all claims had not been settled, and the retrospective premium did not exceed the maximum. This computation was furnished to appellant before the non-waiver agreement was presented and reflected an additional premium charge by reason of the fact that the reserve for the Rice Mill claim was increased and included in ‘incurred losses’.”

We do not agree with this interpretation of the record by the Court of Civil Appeals. That court necessarily relied upon the Company’s answers to interrogatories propounded by Orkin. Orkin asked whether Massachusetts Bonding considered the Gulf Coast claim in any way in making the first and second retrospective computations. The Company answered yes, the reserve for the Gulf Coast claim was $1,000 when the first computation was made; the incurred loss was increased to $10,000 in January, 1957.

However, Orkin has introduced certain other documents in this record which show that no premium was charged or collected until after the nonwaiver agreement was signed July 22, 1957. The Company furnished Orkin a claim analysis for the first retrospective premium which showed that no incurred losses had been established for general liability property claims in the State of Texas at the time the first retrospective premium was computed. A credit bill from the insurance agent dated September 28, 1956, showing a return premium of $37,569, was attached as a covering document. From this it appears that no premium was charged for the Gulf Coast claim in the first retrospective premium adjustment

The charge for the second retrospective premium adjustment was made on September 16, 1957, as shown by an invoice of that date. This was after the nonwaiver agreement was signed, and for that reason cannot effect a waiver or estoppel. The Company admitted establishing a reserve and increasing it to $10,000 in January of 1957; furthermore, a second claim analysis bearing a date of July 15, 1957 (some seven days before the nonwaiver agreement was signed) was submitted to Orkin showing a $10,000 incurred loss for the Gulf Coast claim. These preliminary bookkeeping steps do not establish waiver or estoppel as a matter of law.

Orkin contends further that in this case the retrospective premium was permitted by the insurer to become final after a third retrospective computation as of July 1, 1958. However, this also occurred after the signing of the non waiver agreement. We hold that the nonwaiver agreement has the effect of holding the computation of the premium allocable to this claim open for future adjustment after the liability of petitioners to respondent has been determined. Therefore, the premium computation relative to this specific claim did not become final, and it could not effect a waiver of, or estoppel to assert, the policy defense. Petitioners’ first point is sustained. The Court of Civil Appeals erred in holding that Orkin was entitled to judgment as a matter of law.

Petitioners contend by their second point that they are entitled to summary judgment because the nonwaiver agreement, as a matter of law, prevents the raising of estoppel or waiver. They point to the language of the agreement providing that “no action heretofore or hereafter taken by the Massachusetts Bonding and Insurance Company shall be construed as a waiver * * (Emphasis added.)

The Court of Civil Appeals held that Or-kin preserved its right to plead and prove waiver of policy conditions by reason of actions of the insurer in the clause in the non-waiver agreement reading: “It is also agreed that by the execution of this agreement the Orkin Exterminating Company, Inc. does not thereby waive any rights under the said policy.” This Court construed virtually identical language in New Amsterdam Casualty Co. v. Hamblen, 144 Tex. 306, 190 S.W.2d 56 (1945). There the assured sought to assert a waiver from conduct of the insurer after the execution of the non-waiver agreement the day following notification of the accident. They urged that the above quoted language preserved their right to assert such a waiver. We held,

“The difficulty with their position, as we see it, lies in the fact that their ‘rights under the said policy’ did not include the right to limit the effect of the non-waiver agreement. We have held above that * * * the claim was already invalidated on the date the notice was given to petitioner. Respondents had no right at that time to exact payment of petitioner and they did not, therefore, preserve such right in the quoted language from the non-waiver agreement.” (Emphasis added.)

We hold that “rights under the said policy” means those rights which had accrued under the policy at the time the parties entered into the nonwaiver agreement. If the Gulf Coast claim was not invalidated by late notice because the Company had waived the defense of failure of such condition at the time the nonwaiver agreement was executed, and the claim was within the coverage of the policy, Orkin had a right to protection under the policy within the meaning of the nonwaiver agreement which was preserved thereby. The second point is without merit.

Petitioners' third point asserts that the damage caused Gulf Coast Rice Mills was not an accident as that term was used in the policy. It is a general rule that, when a person is responsible over to another, either by operation of law or by express contract, and he is duly notified of the pendency of the suit and has actually assumed management of the proceeding or defense, the judgment in such suit will be conclusive as to the issues litigated therein. See Littleton v. Richardson, 34 N.H. 179, 66 Am.Dec. 759 (1856); Washington Gas Light Co. v. Dist. of Columbia, 161 U.S. 316, 16 S.Ct. 564, 40 L.Ed. 712 (1896), and cases therein cited. Here, the attorneys for petitioners conducted respondent’s defense of the Gulf Coast suit. Petitioners are therefore bound by the material issues determined therein: (1) Orkin was negligent in the application of Lindane in August of 1955, and (2) such negligence was the proximate cause of the damages sustained.

Petitioners contend that the damage to Gulf Coast arose gradually from three applications of Lindane from 1964 to 1965. See United States Fidelity & Guaranty Co. v. Briscoe, 205 Okl. 618, 239 P.2d 754 (1952). This contention is without merit, for the damages in the Gulf Coast litigation were predicated on a single application of Lindane in August of 1955. Petitioners are bound by that finding in the former case. Petitioners further contend that the application of Lindane constituted gross negligence, which is not within the scope of the term “accident” as used in the policy. Petitioners are again precluded from this assertion because the jury in the Gulf Coast case found that the application of Lindane was negligence, and not gross negligence. We construe the term “accident” as used in the policy to include negligent acts of the insured causing damage which is undesigned and unexpected. See Beaumont, S. L. & W. Ry. Co. v. Schmidt, 123 Tex. 580, 72 S.W.2d 899 (1934); Travelers Ins. Co. v. Reed Co., 135 S.W.2d 611 (Tex.Civ.App.1939, writ dism’d judgmt. cor.); Anchor Casualty Co. v. McCaleb, 178 F.2d 322 (5th Cir. 1950); American Indemnity Co. v. Jamison, 62 S.W.2d 197 (Tex.Civ.App.1933, no writ); Bundy Tubing Co. v. Royal Indemnity Co., 298 F.2d 151 (6th Cir. 1962); Maryland Casualty Co. v. Mitchell, 322 F.2d 37 (5th Cir. 1963). We hold that the damage for which Orkin was held liable was caused by an “accident” within the meaning of the policy. Petitioners’ third point is without merit.

By their final point, petitioners assert in the alternative that the Court of Civil Appeals erred in holding that the Company’s acts constituted waiver and estoppel as a matter of law and in not reversing and remanding the cause for trial. We sustain this point, for although waiver or estoppel has not been established as a matter of law, we believe that a material issue of fact as to waiver has been raised by the record.

At the outset, we wish to point out a distinction between waiver and estoppel in this type of case. The Court of Civil Appeals cited Southland Life Ins. Co. v. Lawson, 137 Tex. 399, 153 S.W.2d 953, 136 A.L.R. 1212 (1941) for the proposition that the doctrine of waiver is merely another name for the doctrine of estoppel, which can only be invoked where the conduct of the company has been such as to induce action, in reliance upon it, and where it would operate as a fraud upon the assured if they were afterwards allowed to disavow their conduct. The Southland Life case involved an alleged waiver by custom and course of dealing as to payment of premiums. This case has been consistently followed in other cases involving the same question of waiver by custom in payment of premiums. See American Standard Life Ins. Co. v. Denwitty, 256 S.W.2d 864 (Tex.Civ.App.1953, writ dism’d); Carter v. Old Faithful County Mut. Fire Ins. Co., 243 S.W.2d 215 (Tex.Civ.App.1951, no writ). These cases, however seem to be an exception to the general rule.

Waiver has been frequently defined as an intentional relinquishment of a known right or intentional conduct inconsistent with claiming it. Texas & P. Ry. Co. v. Wood, 145 Tex. 534, 199 S.W.2d 652 (1947); Rolison v. Puckett, 145 Tex. 366, 198 S.W.2d 74 (1946). In Equitable Life Assur. Society v. Ellis, 105 Tex. 526, 147 S.W. 1152 (1912), this Court held that waiver is essentially unilateral in its character; it results as a legal consequence from some act or conduct of the party against whom it operates; no act of the party in whose favor it is made is necessary to complete it. It need not be founded upon a new agreement or be supported by consideration, nor is it essential that it be based upon an estoppel.

The distinction between waiver and estoppel was made in Wirtz v. Sovereign Camp, W.O.W., 114 Tex. 471, 268 S.W. 438, 441 (1925), as follows: “Waiver presupposes full knowledge of existing right, while estoppel arises where by fault of one, another has been induced to change his position for the worse.” In New Amsterdam Casualty Co. v. Hamblen, 144 Tex. 306, 190 S.W.2d 56 (1945) this Court first held that no issue of estoppel was raised by the evidence in the case, and additionally that an issue of waiver would have been raised but for the execution of a nonwaiver agreement the day after late notice of an accident had been received by the insurer. Our inquiry with regard to the issue of waiver is whether the conduct of petitioner shows an intentional relinquishment of a known right or intentional conduct inconsistent with claiming it.

The record shows that the insurer assumed the complete investigation and adjustment of the Gulf Coast claim for thirteen months after notice of the accident was given. At no time between receipt of notice of the accident and the execution of the nonwaiver agreement did the insurer indicate in any way that it denied coverage under the policy. Orkin did not participate in the investigation except to the extent the insurer requested it to supply information.

The insurance company did more than merely obtain the facts concerning the accident. The insurer’s adjuster conferred from time to time with attorneys for Gulf Coast Rice Mills. He advised the insurer that it appeared unlikely that Gulf Coast would let the statute of limitations run on the claim. The Company acknowledged that Gulf Coast was pressing the adjuster to settle the claim, but did not authorize settlement, stating that it hoped for a lower offer. The attorney for Gulf Coast informed the adjuster that he was of the impression that the claim might be settled for about half the amount of the claim. No settlement was ever authorized.

In a letter to the Company the adjuster intimated that he was not obtaining full cooperation from Orkin. The Company replied, in part: “We have had no reason to criticize our assured for failing to co-operate with us in the handling of any claim in the past, and we do not feel that they should be criticized now in this instance.” The Company wrote Orkin that “we have a very dangerous situation on our hands as this claim is concerned, and we will appreciate your co-operation and assistance in com-batting the allegations of these claimants.” A copy of a statement taken from Orkin’s local manager was enclosed “in order that it may help you determine what information we will need to defend this claim.” All these acts occurred after the Company was aware that it had an absolute defense to liability on the policy.

The conduct of the Company here is inconsistent in several respects with an intention to deny liability on the ground of delay in giving notice, and a genuine issue of the fact of waiver is thereby raised. Petitioners are not entitled to summary judgment. Rule 166-A, Texas Rules of Civil Procedure. Petitioners’ fourth point is sustained.

We reverse the judgment of the Court of Civil Appeals rendering judgment for respondent, and the trial court’s judgment rendering judgment for petitioners, and remand the cause to the trial court.

NORVELL and GREENHILL, JJ., dissenting.

Dissenting Opinion

NORVELL, Justice.

Because of “waiver”, the Court has refused to give effect to the written non-waiver agreement executed by the parties on July 22, 1957. It is, in effect, said that the non-waiver agreement may mean nothing contractually because there is a fact issue as to whether the insurance company, at some time before the execution of the written agreement, intended to relinquish a known contractual right, namely, that of notice in accordance with the provisions of the insurance policy. This holding is not predicated upon fraud, overreaching, or other inequitable conduct which would in good conscience prevent a party to a contract from insisting upon its terms. Accordingly, I think that we should take the parties at their word.

The written contract plainly stated “that no action heretofore or hereafter taken by Massachusetts Bonding and Insurance Company shall be construed as a waiver of the right, if any, of the Massachusetts Bonding and Insurance Company to deny liability to the Orkin Exterminating Company, Inc. under a policy of insurance which is claimed by Orkin Exterminating Company, Inc. to cover claims asserted or which may hereafter be asserted by R. L. Williams and J. M. Chumney, doing business as a partnership under the name of Gulf Coast Rice Mills, * * * ” However, despite this rather carefully and clearly worded contractual statement made by the parties that there was no waiver on the part of the in-, surance company for “action heretofore taken”, i. e. prior to July 22,1957, this Court now holds that because of “action heretofore taken” the company has waived its right to deny liability upon the policy. It is said that, “The conduct of the (insurance) Company here is inconsistent in several respects with an intention to deny liability on the ground of delay in giving notice, and a genuine issue of the fact of waiver is thereby raised”. I cannot agree with this statement. An insurance company certainly has the right to investigate before being called upon to admit or deny liability upon a claim and non-waiver agreements are taken for that purpose. A judicial holding that some prior investigation would (depending upon a jury’s answer) operate to render ineffectual a non-waiver agreement subsequently made by the parties, would in part, at least, defeat the legitimate purpose of a bilateral non-waiver contract. The parties have contracted that past actions of the insurance company should not operate as a waiver and in the absence of fraud or overreaching, such contract should be respected.

Under the law of Texas, there are important distinctions between waiver and estoppel. The Court in its opinion recognizes this distinction, and although the Court of Civil Appeals based its decision at least in part upon estoppel, this Court adopts ■“waiver” as the basis of its holding that a summary judgment was erroneous. In view of this, I shall not discuss estoppel other than to say that in my opinion the estoppel basis is also untenable. On July 22, 1957, Orkin Exterminating Company, Inc. was a free contracting agency. If it was willing to have the insurance company to defend the Gulf Coast Rice Mills action without an admission of liability, they were free to so contract.

I respectfully dissent from the judgment of the Court. I would reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

GREENHILL, J., joins in this dissent.


author: ONION, Judge.

text:
    Carlos MORALES, Appellant, v. The STATE of Texas, Appellee.
    No. 40379.
    Court of Criminal Appeals of Texas.
    May 31, 1967.
    Rehearing Denied July 19, 1967.

      J. Ray Martin, Amarillo, for appellant.
    Gene Compton, Dist. Atty., Bob D. Slough, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Burglary with intent to commit theft; the punishment, twelve (12) years confinement in the Texas Department •of Corrections.

In imposing sentence, the trial court ■specified that such sentence shall be cumulative with a twenty-five (25) years sentence for the offense of robbery by assault with firearms entered on the same day in the same court against this appellant.

It appears from the record that appellant was separately indicted for the offenses •of armed robbery and burglary growing out •of the same series of events on July 16, 1966, in Potter County, Texas.

On September 13, 1966, after the State had waived the death penalty, appellant entered a plea of “not guilty” before a jury to the indictment charging him with robbery by assault with firearms. After the State rested its case in chief, and appellant’s motion for an instructed verdict was overruled, appellant changed his plea to “guilty” and waived trial by jury. Such procedure •is permissible in an otherwise capital case where the State has waived the death penalty in accordance with Article 1.14, Vernon’s Ann.C.C.P. The punishment assessed by the Court was twenty-five years. The appeal from this conviction was disposed of in Morales v. State, Tex.Cr.App., 416 S.W.2d 436, this day reported.

Following the proceedings in the robbery ■case and on the same day the state waived and abandoned the prior convictions alleged in the burglary indictment for the purpose of enhancement. After being duly admonished by the Court as to the consequences of his plea, including a statement as to the maximum and minimum punishment that could be assessed for burglary, appellant entered his plea of “guilty” to the instant offense of burglary, waiving his right to trial by jury. Further, appellant and counsel of his own choice executed a written waiver of the appearance, confrontation, and cross-examination of the witnesses against him and consented to the stipulation of evidence in accordance with Article 1.15, V.A.C.C.P.

I

Such stipulated evidence, being that offered by the State before the jury in the robbery prosecution, appears in the record before us in the form of an agreed statement of facts as authorized by Article 40.09, Section 14, V.A.C.C.P.

We do not deem it necessary to set out all the facts and details of the offenses. Briefly, the agreed statement of facts 'reveals that the appellant, with the assistance, before and after the offenses, of a female employee of the Ship’s Lounge No. 2, in Amarillo, Texas, entered that business establishment after it was closed and locked at approximately midnight on July 16, 1966. Said employee had informed the appellant there would be money in the said lounge that night. At 2 A.M., the owner of the Ship’s Lounge No. 2, Antonio Espinosa, upon observing lights burning in the building, returned unexpectedly to the premises. Upon entering the building, he was assaulted and robbed by appellant whom he discovered inside the business establishment. The agreed statement of facts includes the assertion that the evidence offered was sufficient to support both convictions.

In his first ground of error, if we understand it, appellant contends that the trial court erred in fixing his punishment for burglary in excess of the minimum of two years as he was denied a separate hearing on punishment as contemplated by Article 37.07, Section 2(b), V.A.C.C.P. We overrule such contention.

Appellant obviously overlooks the fact that Article 37.07, Section 2(b), supra, is applicable only to pleas of not guilty before a jury. Rojas v. State, Tex.Cr.App., 404 S.W.2d 30. It has no application where a defendant waives trial by jury and enters a plea of guilty before the Court in a felony less than capital case. Articles 1.13, 1.14, and 1.15, V.A.C.C.P. Further, Article 37.07, Section 2(b), supra, has no application to a plea of gujlty before a jury in such cases. Article 26.14, V.A.C.C.P.; Rojas v. State, supra.

In his second ground of error, appellant contends that the trial court abused his discretion in cumulating the burglary sentence with the sentence previously imposed in the robbery case since the offenses grew out of the same transaction. It is his contention that both offenses depend upon the same facts in one continuous transaction and therefore, the offenses cannot be separated for the purposes of punishment.

Article 1399, Penal Code, provides:

“If a house be entered in such manner as to be burglary, and the one guilty of such burglary shall after such entry commit any other offense, he shall be punished for burglary and also for whatever other offense is so committed.”

Article 1400, Penal Code, provides:

“If the burglary was effected for the purpose of committing one felony, and the one guilty thereof shall while in the house commit another felony, he shall be punishable for any felony so committed as well as for the burglary."

In the 1894 case of Loakman v. State, 32 Tex.Cr.R. 563, 25 S.W. 22, this Court interpreting Articles 712 and 713 (now 1399 and 1400) of the Penal Code, said:

“ * * * Under the statutes cited it was unquestionably the intention of the legislature to authorize convictions, not only for burglary, but also for any and all felonies committed while in the house so> burglariously entered, and to repeal the common law in this regard where it authorized pleas of former conviction.”

It has long been held that a previous conviction of theft of property taken from the house alleged to have been burglarized will not bar a subsequent prosecution for the burglary, since the defendant may be convicted of the burglary and for whatever offense he may have committed after the burglarious entry. Branch’s Anno.Penal Code, Vol. 4, Sec. 2545, p. 879. The same-rule applies when the former conviction is for burglary and the subsequent prosecution is for theft of property taken in the same burglary.

It is likewise noted that a former conviction for burglary will not bar a prosecution for an assault with intent to rob growing out of the same transaction. Adams v. State, Tex.Cr.App., 62 S.W. 1059.

Further, a former acquittal for burglary will not bar a prosecution for theft of property taken from the alleged burglarized house and vice versa. Sigler v. State, 143 Tex.Cr.R. 220, 157 S.W.2d 903; Roman v. State, 64 Tex.Cr.R. 515, 142 S.W. 912; Wallace v. State, 57 Tex.Cr.R. 354, 123 S.W. 135.

In addition, we call attention to the provisions of Article 42.08, V.A.C.C.P., which grants to the trial judge the authority, within his discretion, to cumulate sentences. It provides as follows:

“When the same defendant has been, convicted in two or more cases, and the punishment assessed in each case is confinement in an institution operated by the Department of Corrections or the jail for a term of imprisonment, judgment, and sentence shall be pronounced in each case in the same manner as if there had been but one conviction, except that in-the discretion of the court, the judgment in the second and subsequent convictions may either be that the punishment shall begin when the judgment and sentence in the preceding convictions has ceased to operate, or that the punishment shall run concurrently with the other case or cases, and sentence and execution shall be accordingly.”

We cannot conclude that the trial court abused his discretion in cumulating the burglary sentence in the case at bar with the previously imposed robbery sentence.

Appellant’s second ground of error is overruled.

The judgment is affirmed.


author: WOODLEY, Presiding Judge. ONION, Judge.

text:
    Marcos V. AGUIRRE et al., Appellants, v. The STATE of Texas, Appellee.
    No. 40275.
    Court of Criminal Appeals of Texas.
    June 21, 1967.
    Tinsman & Cunningham, by Michael B. Hunter, San Antonio, for appellants.
    James E. Barlow, Dist. Atty., William W. Morris, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is an appeal by Ralph Napier, surety on a bail bond, from a judgment making final a judgment nisi forfeiting such bond.

The bond in the sum of $200 was conditioned that Marcos V. Aguirre appear in County Court at Law No. One of Bexar County to answer a complaint and information charging him with a misdemeanor.

The principal Aguirre having failed to appear, judgment nisi was entered November 2, 1966, and citation issued.

Service was had on appellant on November 7, 1966, and he having failed to appear on November 28, 1966, judgment was entered against appellant and the principal, in favor of the state, jointly and severally for the sum of $200 and costs of suit.

Appellant filed motion for new trial on December 12, 1966, and hearing was set for December 21, 1966.

On December 22, 1966, at the conclusion of the hearing, the trial court overruled appellant’s motion for new trial and he gave notice of appeal.

On January 16, 1967, the bond approved by the clerk of the trial court was filed.

The state moves to dismiss the appeal for want of jurisdiction on the ground that the appeal bond was not filed within 30 days after the date of the rendition of the judgment or order overruling the motion for new trial as required by Art. 356 Texas Rules of Civil Procedure.

The rule appears to be that the filing of a tardy motion for new trial cannot operate to extend the time for filing an appeal bond under Rule 356 even though the late motion be considered and overruled by the trial judge. Dillard et ux. v. McClain, 324 S.W.2d 163.

Appellant relies upon the rule that a default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before the judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident, provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126.

Applying the rule relied upon by appellant, we affirm the action of the trial court in overruling appellant’s motion for new trial upon our finding that such motion did not set up a meritorious defense to the judgment forfeitirfg the bail bond.

The defense set up in the motion for new trial was that appellant’s counsel, Mr. Tinsman, “tells me that the affidavits upon which the informations were filed are defective under Barnes v. State, [Tex.Civ.App.,] 390 S.W.2d 266, [rev.] 380 U.S. 253, 85 S.Ct. 942, [13 L.Ed.2d 818] and Mayberry v. State, [168 Tex.Cr.R. 537] 330 S.W.2d 203, and that similar motions to this effect have been granted in the District Courts of Bexar County.”

Cisco v. State, Tex.Cr.App., 411 S.W.2d 547, and Vallejo v. State, Tex.Cr.App., 408 S.W.2d 113, are controlling. There we said that Barnes v. State, relied on by appellant, related to the necessity of stating facts constituting probable cause in a complaint or affidavit for the issuance of a warrant of arrest used as a basis for a search and had no application to a complaint made as a basis for a criminal prosecution.

The judgment is affirmed.

CONCURRING OPINION

ONION, Judge.

I concur in the results reached by the majority, but not on the basis of Vallejo v. State, Tex.Cr.App., 408 S.W.2d 113, which was followed in Cisco v. State, Tex.Cr.App., 411 S.W.2d 547. I strongly feel that serious reconsideration of these holdings should be undertaken before they are held applicable to bond forfeiture cases, particularly where there exists another ground on which this appeal might properly be disposed of.

In Ivy v. Carrell, 407 S.W.2d 212, the Texas Supreme Court, speaking through Chief Justice Calvert, said:

“We note again the specific language of Craddock that a new trial should be granted to a defaulting defendant if his motion “sets up a meritorious defense.” This does not mean that the motion should be granted if it merely alleges that the defendant “has a meritorious defense.” The motion must allege facts which in law would constitute a defense to the cause of action asserted by the plaintiff, and must be supported by affidavits or other evidence proving prima facie that the defendant has such meritorious defense. City of Fort Worth v. Gause, 129 Tex. 25, 28, 101 S.W.2d 221, 222 (1937); Holliday v. Holliday, 72 Tex. 581, 10 S.W. 690 (1889); Dowell v. Winters, 20 Tex. 793, 794 (1858); Foster v. Martin, 20 Tex. 118, 119 (1857). This much is necessary to prevent the reopening of cases to try out fictitious or un-meritorious defenses. But once these requirements are met, it is improper to try the defensive issues made by the motion or the pleadings. In Cragin v. Henderson County Oil Dev. Co., 280 S.W. 554, 555 (Tex.Com.App.1926, holding approved), the court, after stating the requirements of a motion for a new trial in default judgment cases, said:
‘But when he (the applicant) has thus set forth such meritorious defense, supported by such affidavits or other evidence as prima facie to entitle him to a new trial, such new trial should not be denied upon any consideration of counter affidavits or contradictory testimony offered in resistance to such motion.’
See also Maeding v. Maeding, 155 S.W.2d 991, 993 (Tex.Civ.App.—Galveston 1941, no writ).”

Testing the case at bar by the foregoing rules, we observed that appellant did not introduce or bring forward in the record the affidavits upon which the informations were based which appellants claim are defective under Barnes v. State, Tex.Civ.App., 390 S.W.2d 266, 855 S.Ct. 942 and Mayberry v. State, 168 Tex.Cr.R. 537, 330 S.W.2d 203. As far as the record before this Court is concerned, the affidavits in question may very well comply with Barnes and Mayberry.

Even if we assume the motion for a new trial alleges facts which in law would constitute a defense to a cause of action asserted by the appellee, it is not supported by affidavits or other evidence proving prima facie that the appellants have such meritorious defense.

The trial court did not err in overruling the motion.


text:
    Jerry J. BAGGS et al., Appellants, v. The STATE of Texas, Appellee.
    No. 40276.
    Court of Criminal Appeals of Texas.
    June 21, 1967.
    Tinsman & Cunningham, by Michael B. Hunter, San Antonio, for appellants.
    James E. Barlow, Dist. Atty., William W. Morris, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is an appeal by Ralph Napier, surety on a bail bond, from a judgment making final a judgment nisi forfeiting such bond.

The bond in the sum of $200 was conditioned that Jerry J. Baggs appear in County Court at Law No. One of Bexar County to answer a complaint and information charging him with a misdemeanor.

The same questions are presented as in Aguirre et al. v. State of Texas, Tex.Cr.App., 416 S.W.2d 406.

The judgment is affirmed.

' CONCURRING OPINION

ONION, Judge.

I concur in the results reached for the reasons set forth in my concurring opinion ■in Aguirre v. State, Tex.Cr.App., 416 S.W.2d 406.


text:
    Juan BAUTISTA et al., Appellants, v. The STATE of Texas, Appellee.
    No. 40277.
    Court of Criminal Appeals of Texas.
    June 21, 1967.
    Tinsman & Cunningham, by Michael B. Hunter, San Antonio, for appellants.
    James E. Barlow, Dist. Atty., William W. Morris, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is an appeal by Ralph Napier, surety on a bail bond, from a judgment making final a judgment nisi forfeiting such bond.

The bond in the sum of $300 was conditioned that Juan Bautista appear in County Court at Law No. One of Bexar County to answer a complaint and information charging him with a misdemeanor.

The same questions are presented as in Aguirre et al, v. State of Texas, Tex.Cr.App., 416 S.W.2d 406.

The judgment is affirmed.

CONCURRING OPINION

ONION, Judge.

I concur in the results reached for the reasons set forth in my concurring opinion in Aguirre v. State, Tex.Cr.App., 416 S.W.2d 406.


text:
    Juan Blanco CAVAZOS et al., Appellants, v. The STATE of Texas, Appellee.
    No. 40278.
    Court of Criminal Appeals of Texas.
    June 21, 1967.
    Tinsman & Cunningham, by Michael B. Hunter, San Antonio, for appellants.
    James E. Barlow, Dist. Atty., William W. Morris, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is an appeal by Ralph Napier, surety on a bail bond, from a judgment making final a judgment nisi forfeiting such bond.

The bond in the sum of $300 was conditioned that Juan Blanco Cavazos appear in County Court at Law No. One of Bexar County to answer a complaint and information charging him with a misdemeanor.

The same questions are presented as in Aguirre et al, v. State of Texas, Tex.Cr.App., 416 S.W.2d 406.

The judgment is affirmed.

CONCURRING OPINION

ONION, Judge.

I concur in the results reached for the reasons set forth in my concurring opinion in Aguirre v. State, Tex.Cr.App., 416 S.W.2d 406.


text:
    Antonio A. GONZALES et al., Appellants, v. The STATE of Texas, Appellee.
    No. 40279.
    Court of Criminal Appeals of Texas.
    June 21, 1967.
    Tinsman & Cunningham, by Michael B. Hunter, San Antonio, for appellants.
    James E. Barlow, Dist. Atty., San Antonio, William W. Morris, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is an appeal by Ralph Napier, surety on a bail bond, from a judgment making final a judgment nisi forfeiting such bond.

The bond in the sum of $200 was conditioned that Antonio A. Gonzales appear in County Court at Law No. One of Bexar County to answer a complaint and information charging him with a misdemeanor.

The same questions are presented as in Aguirre et al, v. State of Texas, Tex.Cr.App., 416 S.W.2d 406.

The judgment is affirmed.

■ CONCURRING OPINION

ONION, Judge.

I concur in the results reached for the reasons set forth in my concurring opinion in Aguirre v. State, Tex.Cr .App., 416 S.W.2d 406.


text:
    Jose RODRIGUEZ et al., Appellants, v. The STATE of Texas, Appellee.
    No. 40280.
    Court of Criminal Appeals of Texas.
    June 21, 1967.
    Tinsman & Cunningham, by Michael B. Hunter, San Antonio, for appellants.
    James E. Barlow, Dist. Atty., San Antonio, William W. Morris, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is an appeal by Ralph Napier, surety on a bail bond, from a judgment making final a judgment nisi forfeiting such bond.

The bond in the sum of $300 was conditioned that Jose Rodriguez appear in County Court at Law No. One of Bexar County to answer a complaint and information charging him with a misdemeanor.

The same questions are presented as in Aguirre et al, v. State of Texas, Tex.Cr.App., 416 S.W.2d 406.

The judgment is affirmed.

CONCURRING OPINION

ONION, Judge.

I concur in the results reached for the reasons set forth in my concurring opinion in Aguirre v. State, Tex.Cr.App., 416 S.W.2d 406.


text:
    Clifton WISEMAN et al., Appellants, v. The STATE of Texas, Appellee.
    No. 40281.
    Court of Criminal Appeals of Texas.
    June 21, 1967.
    Tinsman & Cunningham by Michael B. Hunter, San Antonio, for appellants.
    James E. Barlow, Dist. Atty., William W. Morris, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is an appeal by Ralph Napier, surety on a bail bond, from a judgment making final a judgment nisi forfeiting such bond.

The bond in the sum of $750 was conditioned that Clifton Wiseman appear in County Court at Law No. One of Bexar County to answer a complaint and information charging him with a misdemeanor.

The same questions are presented as in Aguirre et al, v. State of Texas, Tex.Cr.App., 416 S.W.2d 406.

The judgment is affirmed.

CONCURRING OPINION

ONION, Judge.

I concur in the results reached for the reasons set forth in my concurring opinion in Aguirre v. State, Tex.Cr.App., 416 S.W.2d 406.


author: MORRISON, Judge. DICE, Judge.

text:
    Ex parte Paul Dean BUTLER.
    No. 40357.
    Court of Criminal Appeals of Texas.
    May 24, 1967.
    Rehearing Denied June 28, 1967.
    No attorney of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

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

The warrant of the Governor of Texas reciting that appellant stands charged by complaint, warrant, and supporting papers with the crime of Forgery in the State of Oklahoma was introduced into evidence. The warrant is regular on its face and is sufficient for extradition. The supporting papers found in the record do not overcome the prima facie case presented by the warrant. Ex Parte Green, Tex.Cr.App. 415 S.W.2d 424, May 17, 1967; Ex Parte Escarrega, Tex.Cr.App., 388 S.W.2d 192. See Article 51.13, Vernon’s Ann.C.C.P., Note 8, and the cases collated.

The district judge did not err in granting extradition. The judgment is affirmed.

OPINION ON APPELLANT’S MOTION FOR REHEARING

DICE, Judge.

Appellant insists that we were in error in holding that the supporting papers found in the record did not overcome the prima facie case made by the introduction in evidence of the executive warrant, regular on its face, because the supporting papers were not properly authenticated by reason of the difference in dates of certain certificates therein.

We find no merit in the contention. The supporting papers were introduced by the state. The state was not required to introduce them in evidence. The supporting papers appear to be properly authenticated, but — assuming that they are not — appellant is in no position to complain, as such fact would not defeat the prima facie case made by the introduction in evidence of the executive warrant. Ex parte Hoover, 164 Tex. Cr.R. 251, 298 S.W.2d 579.

The motion for rehearing ,is overruled.


author: WOODLEY, Presiding Judge.

text:
    Delbert Winston JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 40175.
    Court of Criminal Appeals of Texas.
    June 7, 1967.
    Rehearing Denied July 19, 1967.
    See also Tex.Cr.App., 416 S.W.2d 414.

      Tom L. White, L. Holt Magee, Mona-hans, for appellant.
    A. R. Archer, Jr., Dist. Atty., Monahans, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is murder; the punishment, life.

This case was tried after the effective date of the 1965 Vernon’s Ann.Code of Criminal Procedure and prior to the decision of this Court in Rojas v. State, Tex.Cr.App., 404 S.W.2d 30, in which we held that the alternate procedure provided in Art. 37.07, Sec. 2, of said Code is not applicable in a capital case where the state is seeking the death penalty, and the punishment in such cases must be assessed by the jury and not the judge.

We reaffirm this holding, but point out, as we did in Williams v. State, Tex.Cr.App., 415 S.W.2d 917, this day decided, that a defendant pleading not guilty in a capital case where the state is seeking the death penalty is denied no constitutional or statutory right when, without objection or at his request, separate trials are had before the same jury on the issues of guilt or innocence and the punishment to be assessed.

The case before us is a capital case in which the District Attorney gave notice that the State would seek the death penalty. Without objection, the court submitted the issue of guilt or innocence of the defendant of the offense charged without authorizing the jury to pass upon the punishment to be assessed.

The jury having found appellant guilty of murder with malice, and appellant’s counsel, after consulting with his client, having elected to have the court assess the punishment, the jury was discharged.

Prior to the hearing before the court on the question of punishment, appellant’s counsel objected to proceeding further.

Appellant’s objections and motions were overruled and the trial judge then pro-ceded to hear evidence on the question of punishment and, at the conclusion of the hearing, assessed appellant’s punishment at life.

In due time appellant filed motion in arrest of judgment which was overruled.

We are in accord with the trial court’s holding that the constitutional right of trial by jury does not encompass the right to have the jury assess the punishment. 31 Am.Jur. 40; 50 C.J.S. Juries § 78, p. 784; Williams v. Jones, Ky., 338 S.W.2d 693, cert. denied 365 U.S. 847, 81 S.Ct. 808, 5 L.Ed.2d 811.

We also point out that the provision of Art. 693 C.C.P. (1925) which required that if the plea is not guilty, in addition to finding the defendant guilty or not guilty, the jury “shall assess the punishment in all cases where the same is not absolutely fixed by law to some particular penalty’’, was omitted in the 1965 Code (see Art. 37.07, Sec. 1) — intentionally— (Art. 54.02, Sec. 2(a)) and was thereby repealed. (Art. 54.02, Sec. 1, C.C.P.)

Section 2 of Art. 37.07 C.C.P. provides a procedure whereby the judge may assess the punishment “In felony cases less than capital and in capital cases where the State has made known that it will not seek the death penalty * *

While the trial judge correctly ruled that no constitutional right to trial by jury was being denied, the provision of Art. 37.07, Sec. 2, above quoted reflects that it was the intention of the legislature that the judge would not be allowed to assess the punishment in a capital case where the state is seeking the death penalty.

The record is clear that the state was seeking the death penalty throughout appellant’s trial, including the hearing before the court on the issue of punishment.

If the trial judge was without authority to assess the death penalty, he was without authority to assess any other punishment applicable to the offense of murder with malice so long as the state was seeking death as punishment.

The trial judge being without authority to assess the punishment, and no punishment having been assessed by the jury, the conviction cannot stand.

The judgment is reversed and the cause remanded.


text:
    Ex parte Delbert Winston JONES.
    No. 39811.
    Court of Criminal Appeals of Texas.
    June 7, 1967.
    Tom L. White, and L. Holt Magee, Mona-hans, for petitioner.
    A. R. Archer, Jr., Monahans, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

In this original habeas corpus proceeding petitioner attacks the legality of his confinement under the judgment of conviction this day reversed and remanded in Jones v. State, Tex.Cr.App., 416 S.W.2d 412.

The petitioner is legally confined to await the disposition of such appeal, the issuance of mandate and to answer the indictment charging him with murder.

The petition for writ of habeas corpus is denied.


text:
    Gene Olwyn MEYER, Appellant, v. The STATE of Texas, Appellee.
    No. 40413.
    Court of Criminal Appeals of Texas.
    June 14, 1967.
    Jones, Blakeslee, Minton, Burton & Fitzgerald, by Perry L. Jones, Austin, for appellant.
    Thomas D. Blackwell, Dist. Atty., Robert A. Huttash, Asst. Dist. Atty., Austin, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is robbery by assault; the punishment, enhanced by two prior convictions for a felony less than capital, life.

The grounds of error relate to the closing argument of the district attorney at the trial on the issue of guilt or innocence.

The first ground is that the trial court erred in failing to grant a motion for mistrial based upon the district attorney’s-argument wherein appellant was referred to as “a professional,” and the robbery was referred to as a “professional type of robbery.” It is contended that this argument was calculated to prejudice the jury by indicating to them that appellant had committed other offenses.

The state contends that the argument was a legitimate inference based on the facts; that the evidence indicated that appellant went to the scene of the crime before the robbery and observed the surroundings ta-pian his course of action; that appellant disguised himself by wearing large dark glasses and a red jacket which he apparently discarded soon after the robbery; that he attempted to jerk the pay phone from the wall to prevent the attendant from calling the police after the robbery; that he had the attendant lie on the floor, telling him to lie there for ten minutes; that he parked his car away from the service station behind a clump of trees to prevent a passerby from identifying it; that he used a 30.30 rifle; and that he conducted the robbery during the early morning hours when there was only one attendant at the station and when there was little likelihood of other witnesses being present.

Appellant argues that it is obvious that the robbery was not committed by a professional; that footprints and car tracks were left in the mud at the scene of the crime; that the robber allowed his sunglasses to be knocked off during the course of the robbery; that the robber was unsuccessful in his attempt to jerk the phone off the wall; that he apparently threw his jacket away three blocks from the scene of the crime where the police easily located it lying on the pavement. It is argued that the only .impression which the jurors could have gotten from reference to appellant as a professional was that he had committed similar crimes in the past.

A motion for mistrial on this point was made after the district attorney had made seven references to the robbery as the work of a professional, or to appellant as a professional robber, to some of which there was no objection.

The court instructed the jury in his charge and during the argument that they were not to take what either attorney said as evidence, but were to consider only what came from the witness stand.

All arguments must be appraised in the light of the entire record and the verdict rendered. Cotton v. State, 113 Tex. Cr.R. 188, 19 S.W.2d 319. Although whether the robbery was a professional one is arguable, the prosecutor’s deduction from the evidence was a reasonable one. No reversible error is presented. Siwakowski v. State, Tex.Cr.App., 387 S.W.2d 669;

Christesson v. State, 172 Tex.Cr.R. 27, 353 S.W.2d 218; Jones v. State, 352 S.W. 2d 270; Sommers v. State, 165 Tex.Cr.R. 575, 310 S.W.2d 106; Miller v. State, 163 Tex.Cr.R. 381, 292 S.W.2d 108; Hay v. State, 155 Tex.Cr.R. 604, 237 S.W.2d 987.

The second point of error is that the trial court erred in not granting appellant’s motion for mistrial following a statement by the district attorney during the same argument to the jury which it is contended was a comment on appellant’s failure to testify.

J. I. McCray, the attendant at the robbed service station, was the only eyewitness to the crime for which appellant was on trial. Appellant did not take the stand to testify in his own behalf, and only one witness testified for the defense. One of appellant’s primary defenses involved questioning the reliability of the identification by McCray of appellant as the man who robbed him. During the course of the robbery, the robber poked the barrel of his rifle in McCray’s back, whereupon McCray turned around and hit the robber with the broom which was in his hand, knocking the robber’s sunglasses off temporarily and causing him to lose his balance. McCray’s testimony was that this was the only time that he saw the robber with his sunglasses off.

In his argument to the jury, appellant’s attorney made the following statement:

“Of course, we criminal attorneys find it actually more difficult to represent a person who is innocent than a person who is guilty; a guilty person can tell you some details that you can probably cross up some of the examining officers on. A person who says, T know nothing of it, never been to the station in my life,’ leaves you nothing to do except listen to the State’s testimony and try to find little loopholes that do not jibe.”

Appellant’s attorney was giving the impression that his client had told him that he was innocent.

The District Attorney responded to this argument in the following manner:

“You notice that the testimony for the Defendant in this case comes basically from Mr. Jones standing up here talking to you. Mr. Jones is the one who tells you that the identification was two seconds. Now, Mr. McCray on the witness stand never said anything about two seconds; that’s Mr. Jones’ testimony. * * *
“Mr. Jones didn’t take the witness stand and wasn’t sworn, simply because he wasn’t out there and was not a personal witness, but that is a legitimate tactic of a defense lawyer, to draw his conclusions from the facts, and his conclusion is that Mr. McCray couldn’t have seen this Defendant but two seconds and, therefore, Mr. Jones tells us, ‘Two seconds,’ and over and over he says, ‘Two seconds,’ until when you get back to the jury room, you believe that Mr. McCray admitted it was only two seconds that he saw him. That didn’t happen. He saw him the full time that he was out there.”

In summing up his argument to the jury, the District Attorney stated:

“Now, Ladies and Gentlemen of the Jury, this is an open and shut case. There is no question about it. The only questions are the insinuations that a brilliant defense attorney makes. He makes the insinuation that this Defendant has told him that he wasn’t guilty, but he won’t take the stand under oath and tell you that.”

Appellant’s attorney immediately objected to the statement as being a comment on appellant’s failure to testify, and moved for a mistrial on that ground.

The rule with regard to a comment such as was made by the District Attorney was stated by this court in Parrish v. State, 101 Tex.Cr.R. 26, 273 S.W. 851:

“While the statement is made that appellant did not testify, there nowhere appears in this bill anything to indicate that the language quoted must have been understood by the jury to refer to appellant’s failure to testify. No such facts are stated therein as to make it appear that this was necessarily a reference to such failure.”

In reading the one sentence it is difficult to determine whom the district attorney referred to as “he,” i. e. whether he was referring to appellant or to appellant’s attorney. When the statement is put in the context of the argument as a whole, it is more probable that the district attorney was not referring to the defendant but to his counsel. The statement does not necessarily refer to appellant’s failure to testify. Lewis v. State, 155 Tex.Cr.R. 544, 237 S.W. 2d 293.

The judgment is affirmed.


author: BELCHER, Judge.

text:
    Henry TRAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 40388.
    Court of Criminal Appeals of Texas.
    June 7, 1967.
    Rehearing Denied July 19, 1967.

      Marvin O. Teague, On Appeal Only, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Alvin A. Horne, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for robbery by assault with two prior convictions for felonies less than capital alleged for enhancement; the punishment, life.

The trial was had in September, 1966.

The refusal of the court to grant appellant’s motion for an instructed verdict of not guilty is urged as error on the ground that the evidence is insufficient to support the verdict of the jury.

While testifying for the state, Chester A. Davis, a cab driver, and the alleged assaulted party, identified the appellant as the person, who, .upon arriving at his destination in Davis’s cab, attacked him (Davis) with an open knife, cutting him on the finger and chin, threatened to kill him, put him in fear of his life and serious bodily injury, and took from him more than one hundred dollars in money without his consent.

The evidence sufficiently supports the conviction for the primary offense as charged.

Error is urged on the ground that the trial court erred in refusing his request to inspect, examine and use the police offense report in this case during the cross-examination of the state’s witness, Officer Kountz.

After the trial court declined the request for a copy of the instrument that Officer Kountz used to refresh his memory, appellant at that time took no further action, and made no effort subsequently to have the instrument produced for the record. There is no showing that the instrument was used or exhibited in the presence of the jury. Kountz testified he did not have the instrument with him at the time and there is no evidence that it was even in the district attorney’s files. No harm to appellant has been shown and no error presented. Moreno v. State, 170 Tex.Cr.R. 410, 341 S.W.2d 455; McLain v. State, Tex.Cr.App., 383 S.W.2d 407.

Actually, it is not clear from the record just what instrument, if any, Officer Kountz did read to refresh his memory. If it was an offense report, it was not shown to have been prepared by either Kountz or Officer Collins.

As ground for reversal, the appellant contends that he was compelled to give evidence against himself when the state was permitted to introduce his fingerprints taken during the trial, without an order of the court, and without the presence of counsel. Similar contentions have been urged, considered, and overruled in Gage v. State, Tex.Cr.App., 387 S.W.2d 679; Dennison v. State, Tex.Cr.App., 399 S.W.2d 365; Platt v. State, Tex.Cr.App., 402 S.W.2d 898; Green v. State, Tex.Cr.App., 408 S.W.2d 709.

Even though there were no objections made to the court’s charge and no requested charges submitted, the grounds urged as error in appellant’s brief have been examined and considered, and they reveal no fundamental error.

The judgment is affirmed.


text:
    Robert Dillard ABNEY, Appellant, v. The STATE of Texas, Appellee.
    No. 40313.
    Court of Criminal Appeals of Texas.
    May 17, 1967.
    Rehearing Denied July 12, 1967.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is robbery; the punishment, 20 years.

Trial was prior to the effective date of the 1965 Vernon’s Ann.Code of Criminal Procedure before a jury on a plea of not guilty, the allegations as to the use of firearms having been abandoned and dismissed.

Motion for new trial was filed and sentence was not pronounced until April 1,. 1966. Notice of appeal was given and noted in the sentence.

The record on appeal was approved by the-trial judge on December 2, 1966, and final order refusing to allow appellant to withdraw his notice of appeal and grant a new trial, and directing the clerk to promptly transmit the record to this court, was entered on March 3, 1967.

An examination of the record reflects no ground for reversal and presents no claim of error which warrants discussion.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Ex parte David Crockett McCULLOUGH.
    No. 40532.
    Court of Criminal Appeals of Texas.
    June 21, 1967.
    David Crockett McCullough, pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is an application for writ of habeas corpus by an inmate of the Department of Corrections confined by virtue of a 1950 conviction from Walker County in Cause No. 10,209, for the offense of escape from jail. The sentence was made cumulative of the sentence in Cause No. 3,738A from Dallas County which petitioner has served.

From the record before us we can readily determine that the order making the sentence cumulative is defective. The order states that “the above sentence is cumulative with sentence in Cause No. 3,738A from Dallas, Dallas County, Texas.” We judicially know that there is more than one District Court in Dallas County; therefore, an order referring only to a cause number from Dallas County is insufficient to designate the Court in which the conviction was had, and without such designation the order is insufficient to cumulate the sentence. Ex parte Whitley, 171 Tex.Cr.R. 280, 347 S.W. 2d 721, is directly in point and authorizes our holding the above order of cumulation insufficient.

The petitioner is ordered released from confinement under the 1950 Walker County sentence.


text:
    Ex parte Julius Edward KOVACS.
    No. 40472.
    Court of Criminal Appeals of Texas.
    June 28, 1967.

      Robert Lee Bobbitt, Jr. (By Appointment), San Antonio, for appellant.
    James E. Barlow, Dist. Atty., Charles T. Conaway, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is an appeal from an order remanding appellant to the custody of the Sheriff of Bexar County for delivery to an agent of the State of New Jersey.

The supporting papers which accompanied the demand and the executive warrant include an affidavit of the chief probation officer, Hunterdon County, New Jersey, which recites that appellant plead guilty to a charge of robbery in 1962 in said county and was placed on probation for a period of five years, and that on August 29, 1966, he violated the terms of such probation in that he left the State of New Jersey without permission from his probation officer.

Appellant’s first ground of error is that he was not subject to extradition because he was. not in the demanding State on the date alleged in the request of the county prosecutor for the demand.

Appellant’s reliance upon Hyatt v. People of State of N. Y., 188 U.S. 691, 23 S.Ct. 456, 47 L.Ed. 657, and Fowler v. Ross, 90 U.S.App.D.C. 305, 196 F.2d 25, is misplaced. In each case the person sought to be extradited was not shown to have been in the demanding State on the day charged in the indictment or application for demand. In situations such as in the cases cited, appellant’s presence in the demanding State on the date alleged is of vital importance because he could not be guilty of the offense charged unless he was there. However, in cases of the nature presented here, where appellant’s physical presence in the asylum state is proof in itself that he had left the demanding state, proof of the exact date is not required.

In the case at bar appellant testified that he was the same person who had been found guilty of the crime of robbery in the State of New Jersey in 1962, and had been placed on probation and was still on probation. The affidavit of the probation officer alleged that appellant violated the terms of such probation by leaving the State of New Jersey without permission of his probation officer and that he was presently (at the time of making the affidavit) under arrest and in custody of the San Antonio Police Department. The Governor’s warrant recites among other charges that appellant stands charged with a violation of probation in New Jersey. This is supported by the demand of the Governor of New Jersey which makes the same recitation.

Appellant’s further ground of error is that the trial court erred in holding that it was not material that appellant was not in the demanding State at the time alleged in the demand. To hold in a case of this nature that the probation officer must allege the exact date when probationer violated the terms of his probation by leaving the State without consent would be placing an impossible burden on the State. The probation officer knows when his probationer should report to him and when he fails to so report and an investigation reveals that he has left the State, it is only natural, unless specific information indicates to the contrary, that the probation officer allege that he left on the date he was to have reported.

Finding no reversible error, the judgment of the trial court is affirmed.


text:
    Joe Lynn HARLAN, Appellant, v. The STATE of Texas, Appellee.
    No. 40430.
    Court of Criminal Appeals of Texas.
    June 7, 1967.
    Rehearing Denied July 19, 1967.
    Norman Kinne, Dallas (On Appeal Only), for appellant.
    Henry Wade, Dist. Atty., Curtis Glover, Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Robbery by Assault with Firearms; the punishment, assessed by the jury at seventy-five (75) years confinement in the Texas Department of Corrections.

All of appellant’s grounds of error relate to the admission into evidence of a photograph of appellant, over objection, bearing the markings “Dallas Police, 56176 12-7— 64.”

Appellant first contends that there was no basis for admitting said photograph into evidence.

The record reveals that Clinton O. Nelson, the manager of a Seven-Eleven Ice House in the City of Dallas, identified the appellant in the courtroom as the man who robbed him at gunpoint at the icehouse on August 4, 1965. On such direct examination, no mention was made of any other occasion when Nelson identified the appellant. On cross-examination, the complaining witness’s identification of appellant was vigorously attacked. It was elicited from such witness that he had been shown “mug shots” of the appellant.

On re-direct examination, Nelson was shown State’s Exhibit No. One and identified it as the “mug shot” of the appellant shown to him at the police station. Said exhibit was then admitted into evidence over the appellant’s objection.

In Alejandro v. State, Tex.Cr.App., 394 S.W.2d 523, this Court, when confronted with a similar contention as here made, said:

“The record reflects that the photograph was not admitted into evidence until after the appellant, on cross-examination of the prosecuting witness, had gone into the details of his identification of the guilty party from the photograph. Under the record the photograph was admissible on the issue of appellant’s identity and the court did not err in admitting it in evidence.”

After having developed such evidence on cross-examination, appellant is in no position to claim the Court erred in admitting State’s Exhibit No. One. Reynolds v. State, Tex.Cr.App., 401 S.W.2d 249.

Appellant’s first ground of error is overruled.

Appellant next contends that the trial court erred in admitting into evidence State’s Exhibit No. One after the State had withdrawn its offer of such exhibit.

The record is not as clear as it could be and demonstrates a common fault of trial lawyers who sometimes forget that a record is being made, and refer to questions, answers, objections, exhibits, etc., as “this”, “that”, “there”, or “it” without further designation.

A close reading of the disputed record, however, convinces us that the withdrawal of the offer by the State was of a previous question asked to which appellant’s objection was sustained rather than the withdrawal of the offer of State’s Exhibit No. One. This construction is reinforced by the fact that immediately after the alleged withdrawal, the prosecutor handed State’s Exhibit No. One to appellant’s counsel for examination, and thereafter, the only objection to the introduction of said exhibit was that it was “inflammatory”. At the time appellant did not direct the Court’s attention to any claim that the State had withdrawn its offer.

We find no merit in appellant’s second ground of error.

It would have been preferable if the police identification marks had been removed from State’s Exhibit No. One before introduction as was done in Huerta v. State, Tex.Cr.App., 390 S.W.2d 770. In view of the above mentioned testimony and the absence of any such request by appellant, no error is presented.

Appellant’s last contention is that the trial court’s admission into evidence of State’s Exhibit No. One amounted to a comment on the weight and probative value of the evidence. He relies upon Article 38.05, Vernon’s Ann.C.C.P.

In admitting State’s Exhibit No. One into evidence, the trial judge merely said: “The court overrules your objection to it. It will be admitted.”

Appellant admits that the Court did not comment directly upon the weight or probative value of the exhibit, but insists that under the circumstances of the case, including his claim that the State withdrew its offer of the exhibit, that the exhibit was given to the jury as evidence upon the Court’s own motion. He suggests that the exhibit should have been properly marked “Court’s Exhibit No. One for the prosecution.”

Under the record, we cannot conclude that the trial court’s action in any way constituted a comment on the weight or probative value of the exhibit. See Steese v. State, 170 Tex.Cr.R. 269, 340 S.W.2d 49.

The judgment is affirmed.


text:
    Clarence HARRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 40375.
    Court of Criminal Appeals of Texas.
    May 31, 1967.
    Rehearing Denied July 12, 1967.
    James H. Martin, Dallas, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

Appellant was convicted of murder with malice and his punishment was assessed by the jury at ten years.

Trial was held subsequent to January 1, 1966.

No brief for appellant was filed in the trial court.

By supplemental brief filed in this court, as in his motion for new trial, appellant contends that the evidence is insufficient to support the conviction in that it shows self-defense, or at least imperfect self-defense as a matter of law.

The testimony reveals that appellant, Davy Bird (the deceased), and others, were engaged in a dice game when an argument ensued between appellant and Bird, apparently because appellant refused on Bird’s request to remove a wine bottle from the table. Bird took a knife from his pocket and opened it up, and appellant drew a pistol. The players, including Bird, started running from the room. One shot was fired and Bird turned around, facing appellant, and was hit with several further shots fired by appellant. He died within a few minutes.

Appellent’s contention that self-defense was shown as a matter of law is overruled.

The judgment is affirmed.


author: WOODLEY, Presiding Judge. MORRISON, Judge (concurring in part and dissenting in part).

text:
    Robert Earl SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 40311.
    Court of Criminal Appeals of Texas.
    May 10, 1967.
    Rehearing Denied July 12, 1967.
    Hollis Cordray, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., Richard M. DeGuerin and Alvin A. Horne, Asst. Dist. Attys., Houston, and Leon B. Douglas,. State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is felony theft of an automobile; the punishment 3 years.

The indictment was returned and filed March 28, 1966. The theft was alleged to have occurred on or about the 19th day of February, A.D.1966.

Further allegation that the offense was committed anterior to the presentment of the indictment was not necessary. Archie v. State, 91 Tex.Cr.R. 13, 237 S.W. 257; Busby v. State, 143 Tex.Cr.R. 72, 157 S.W. 2d 394; Flores v. State, 143 Tex.Cr.R. 382, 158 S.W.2d 1012; Mason v. State, 160 Tex. Cr.R. 501, 272 S.W.2d 527; Flores v. State,. 167 Tex.Cr.R. 91, 318 S.W.2d 663.

Represented by counsel of his choice, appellant waived a jury and pleaded guilty before the court.

A “Stipulation of Evidence” sworn to by appellant and approved by his counsel and by the court was filed which included appellant’s judicial confession:

“On the 19th day of February, 1966, in Harris County, Texas, I did fraudulently take and steal one automobile of the value of over fifty dollars, which was the personal property of Frank Joubert, and I took the same from his possession, without his consent, and with the intent to deprive him of the value of the same and to appropriate it to my own use and benefit.”

In the written stipulations appellant also waived the appearance, confrontation and cross-examination of witnesses and consented to the introduction of testimony by affidavits, written statements of witnesses and other documentary evidence.

The transcript of the court reporter contains the testimony of the owner of the automobile and the arresting officers showing the guilt of appellant, which testimony such witnesses would have given had they been sworn and testified. It also contains the stipulation by appellant, his counsel and counsel for the state that such testimony would have been so given and was true.

Appellant contends that under the provisions of Art. 1.15 C.C.P. it is essential that all evidence,- written statements or affidavits, or any other documentary evidence used to form the basis of the conviction, must appear in the record. He points to the absence of any affidavits or written statement of the witnesses whose testimony was stipulated.

The consent of appellant in writing in open court to waive the appearance, confrontation and cross-examination of the witnesses complied with the requirements of Art. 1.15 C.C.P. We do not construe such statute to require that the state produce a prior statement or affidavit of every witness whose testimony is stipulated.

The stipulated evidence was “filed in the papers of the cause” in the transcript of the court reporter’s notes which forms a part of the record on appeal.

The judgment is affirmed.

MORRISON, Judge (concurring in part and dissenting in part).

Judge Onion and the writer concur in the affirmance of this conviction because appellant’s judicial confession standing alone is sufficient. Alvarez v. State, Tex.Cr. App., 374 S.W.2d 890.

We cannot agree with the majority opinion that the oral stipulations in open court and reflected only by the untranscribed notes of the court reporter at the time of the entry of the judgment satisfy the requirements of Article 1.15, V.A.C.C.P. as to stipulated evidence. Article 1.15, supra, reads as follows:

“No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless in felony cases less than capital the defendant, upon entering a plea, has in open court in person waived his right of a trial by jury in writing; provided, however, that it shall be necessary for the State to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent must be approved by the court in writing, and be filed, with all of such evidence, in the file of the papers of the cause. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.”

It will be seen from the above that the majority has clearly ignored the mandatory provisions of the statute. The fact that the court reporter’s notes may be transcribed some time after the entry of judgment and sentence because notice of appeal is given and the request for their inclusion in the record is made does not comply with the above quoted statute. Compliance with this Article should not depend upon some subsequent event which might cause the court reporter’s notes, if still available, to be transcribed and filed.


text:
    Robert Joe HEARD, Appellant, v. The STATE of Texas, Appellee.
    No. 40431.
    Court of Criminal Appeals of Texas.
    June 14, 1967.
    No attorney for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is burglary of a private residence; the punishment, 99 years. (Art. 1391 Vernon’s Ann.P.C.)

The indictment alleged a prior conviction for burglary of a private residence.

The jury that had found appellant guilty found that the allegations as to the prior conviction were true and, as instructed by the court, assessed the punishment at 99 years.

This case was tried under the 1965 Code of Criminal Procedure prior to the decision of this court on rehearing in Ex parte Davis, Tex.Cr.App., 412 S.W.2d 46, 50, which overruled Joseph v. State, Tex.Cr. App., 367 S.W.2d 330; Brown v. State, 171 Tex.Cr.R. 167, 346 S.W.2d 842; Sellars v. State, 401 S.W.2d 835; and Madeley v. State, Tex.Cr.App., 388 S.W.2d 187.

The statute provides no maximum punishment for the offense of burglary of a private residence (Art. 1391 V.A.P.C.). Art. 62 P.C. did not authorize the 99 year term. Ex parte Davis, supra; Ex parte Balas, Tex.Cr.App., 412 S.W.2d 53; Ex parte Joseph, Tex.Cr.App., 414 S.W.2d 678.

The judgment is reversed and the cause remanded.


text:
    Jimmie Lee HAWKINS, Appellant, v. The STATE of Texas, Appellee.
    No. 40474.
    Court of Criminal Appeals of Texas.
    June 28, 1967.
    Cayton & Gresham, Lamesa, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The offense is passing a forged instrument; the punishment, 3 years.

The record does not contain a transcript of the reporter’s notes. “The entire record” has not been approved by the trial court as required by Section 7, and filed with the clerk of the trial court as provided in Section 8 of Article 40.09 C.C.P.

The time allowed for the filing of the defendant’s brief does not begin to run until the “approval of the record by the court.” Art. 40.09, Section 9, C.C.P.

The disposition of this appeal will be suspended to await the approval of the record and further proceedings which may be had in the trial court under Art. 40.09, supra, after such approval as though the record had not been transmitted to this court and filed. Stoker v. State, Tex.Cr. App., 923 S.W.2d 415.

The appeal is abated.


text:
    Ex parte Jimmy COTTRELL.
    No. 40429.
    Court of Criminal Appeals of Texas.
    June 7, 1967.
    Rehearing Denied July 19, 1967.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

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

The warrant of the Governor of Texas reciting that appellant stands charged by information, supporting affidavit, warrant and supporting papers with the crime of murder in the State of Oklahoma was introduced into evidence. The warrant is regular on its face and is sufficient for extradition. The supporting papers found in the record do not overcome the prima facie case presented by the warrant. Ex parte Green, Tex.Cr.App., 415 S.W.2d 464, May 17, 1967; Ex parte Escarrega, Tex. Cr.App., 388 S.W.2d 192. See Article 51.13, V.A.C.C.P., Sec. 8, and the cases collated..

The district judge did not err in granting extradition. The judgment is affirmed.