author: WOODLEY, Judge.

text:
    Gerald Dixon FLETCHER, Appellant, v. The STATE of Texas, Appellee.
    No. 38454.
    Court of Criminal Appeals of Texas.
    Nov. 3, 1965.
    Rehearing Denied Dec. 15, 1965.

      Charles E. Benson, Lubbock (on appeal only), for appellant.
    Alton R. Griffin, Dist. Atty., George H. Nelson, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

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

The indictment presented November 9, 1960 alleged the burglary of a house occupied and controlled by Boyd Smith with intent to commit theft.

The offense was alleged to have been committed on or about the 20th day of October, 1960, in Lubbock County.

A prior conviction for felony theft on December 2, 1958, in the 99th District Court of Lubbock County, and another conviction in the 140th District Court of Lubbock County for felony theft which became final on August 29, 1957, were alleged for enhancement of punishment purposes.

The case was tried on January 29, 1965. Appellant having on January 15, 1965 made affidavit that he was destitute and without means of employing counsel, the court appointed Wilson Kermickel, a practicing attorney of Lubbock County, to represent him. Attorney Kermickel conducted his defense at the trial which resulted in a jury verdict and judgment of conviction on February 15, 1965.

Appellant was sentenced and gave notice of appeal. Ten days later the trial judge, having been advised of Mr. Kermickel’s intention to withdraw as attorney for appellant, appointed Hon. Walter J. Taylor to represent the appellant in his appeal to this Court.

On April 30, 1965 the firm of Benson and Benson of Lubbock was employed to represent appellant on appeal. The case has been briefed and argued by such employed counsel.

Court appointed counsel Walter J. Taylor, upon his motion, was discharged by order of the trial judge entered May 14, 1965.

Time for filing bills of exception was extended upon motion of appellant’s employed counsel, but none were filed.

The evidence shows that on October 20, 1960, Lubbock police officers received information that someone was going to break into Boyd Smith Auto Supply in Lubbock that night.

A stake-out was arranged and officers equipped with walkie-talkies and armed with shot guns were watching the building between 9 and 10 o’clock P.M., or thereabout, when a black Plymouth automobile circled the block and stopped in the parking area adjacent to the rear of the Boyd Smith Auto Supply building.

Four men got out of the car and were seen to enter the back door of the building.

When Sgt. Eller and a fellow officer got to the door they found it about halfway open, the bar on the inside having been pushed off or forced to fall off.

The officers pushed their way in and called to the men inside to come out, that the building was surrounded. A few seconds later these officers heard glass breaking.

Other officers, having seen the black Plymouth and having been informed by walkie-talkie that four men had gotten out and had gone in the back door of the building, were watching the front “when suddenly this front glass exploded and these four people — four men came out, just leaped through the window.”

Faced by the armed officers and called upon to stop, they did so and were taken into custody. Appellant was identified as one of the four men.

Boyd Smith testified that he was the owner and operator of Boyd Smith Auto Supply and lessee of the building; that the hours for conducting the business were from 8 to 6; that he did not know appellant or either of his companions and did not give either of them permission to enter the building, and that he gave no one permission to enter the building without a key or without permission from him.

The prior convictions were established by the records of the court and the State Department of Corrections and by testimony of the District Clerk and a deputy sheriff in charge of identification.

We find the evidence summarized above sufficient to sustain the conviction.

The state may allege and prove a prior conviction alleged for the purpose of enhancing the punishment under the applicable enhancement statute. (Art. 61 to 63 Vernon’s Ann.P.C.) Howard v. State, Tex.Cr.App., 387 S.W.2d 387; Stephens v. State, Tex.Cr.App., 377 S.W.2d 189 (cert. denied 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed. 2d 274); Sims v. State, Tex.Cr.App., 388 S.W.2d 714; Redding v. State, 159 Tex.Cr.R. 535, 265 S.W.2d 811 (cert. denied 348 U.S. 838, 75 S.Ct. 38, 99 L.Ed. 661) and cases cited; Breen v. Beto, 5 Cir., 341 F.2d 96; Taylor v. Beto, 5 Cir., 346 F.2d 157.

Appellant’s contention that the reading of the portion of the indictment alleging a prior conviction for burglary deprived him of a constitutional right is overruled.

In view of Art. 847 Vernon’s Ann. C.C.P. and the absence of any evidence to overcome the presumption therein provided, there is no support for appellant’s contention that the indictment was not read to the jury and the appellant did not enter a plea. Also, the judgment and charge of the court show the contrary.

The contention that appellant's court appointed counsel was not allowed sufficient time to prepare for trial is without merit. While the order appointing counsel upon appellant’s request and affidavit of indigency dated January 15, 1965, bears no date, there is no showing that such appointment was made at a later date and less than 10 days before the trial which began January 29, 1965.

Be this as it may, the judgment of conviction recites “Defendant and his appointed counsel waived in writing the period of ten (10) days to prepare for trial.”

The inclusion in the transcript of a certificate of the clerk that after diligent search he could not “find that such an instrument has ever been filed in the cause * * * ” is not sufficient to destroy the recitation in the judgment. Foster v. State, 170 Tex.Cr.R. 61, 338 S.W.2d 458.

It is contended that the state failed to sustain its burden of proof on the issue of unlawful breaking and entering. It is pointed out that Boyd Smith testified that on the date his building was alleged to have been burglarized he was out of town and further testified that his brother was the store manager and that the brother was not called to testify.

Having proved want of consent of the owner and occupant of the building as alleged in the indictment, the state was not required to allege or prove want of consent of any other party claimed to have authority to give consent to the breaking and entry of the building, this being purely a matter of defense. Mace v. State, 9 Tex.App. 110; Skaggs v. State, 56 Tex.Cr.R. 79, 119 S.W. 106; Thornton v. State, 80 Tex.Cr.R. 64, 188 S.W. 749.

In the absence of any exception to the court’s charge, we need not decide whether the evidence showing the breaking and entry of the building was circumstantial or direct evidence.

The remaining and what appears to be the principal ground upon which appellant’s counsel on appeal predicate their claim of reversible error is the contention that the trial judge appointed counsel to defend the appellant at his trial who “did not possess the ability and the experience fairly to represent the appellant, to present his defense and to protect his rights.”

There is no showing in the record as to the education, background or experience of court appointed counsel.

As to his ability or lack of ability, we are cited to the record of appellant’s trial and are informed in the brief that the ability of the same counsel was questioned in Jones v. State, Tex.Cr.App., 388 S.W.2d 429.

The constitutional right to counsel does not mean errorless counsel or counsel judged ineffective by hindsight.

The testimony which it is suggested shows the most obvious deficiency of court appointed counsel is the testimony of Boyd Smith that he was out of town; that his brother, who was the store manager, “just told me that they had broke out one of the plate glasses.”

There was ample proof that appellant was one of four men who entered the building through the back door and escaped into the arms of the officers by breaking through a plate glass window in the front.

We find it unnecessary to discuss other circumstances relied upon as showing trial counsel’s incompetence and lack of acquaintance with the Code of Criminal Procedure.

We are unable to agree that appellant was deprived of his constitutional rights as guaranteed by the 6th and 14th Amendments to the Constitution of the United States, or that a different result would have been reached by the jury but for any of the acts or omissions of his court appointed trial counsel.

Other claims for reversal have been considered and are overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: DICE, Commissioner.

license: Public Domain

text:
    Ben Herbert PHELPER, Appellant, v. The STATE of Texas, Appellee.
    No. 37771.
    Court of Criminal Appeals of Texas.
    March 10, 1965.
    Rehearing Denied April 14, 1965.
    Certiorari Denied Dec. 6, 1965.
    See 86 S.Ct. 387.

      Grier H. Raggio, Robert C. Benavides, Dallas, for appellant.
    Henry Wade, Dist. Atty., John Nelms, Mike Everett and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted under Art. 527, Vernon’s Ann.P.C. for unlawfully and knowingly having in his possession obscene pictures and his punishment was assessed at a fine of $1,000.

The state’s evidence shows that appellant lived with his wife and step-son in the city of Richardson. In the early part of November, 1963, when the witness James Bartley was in the home delivering milk, appellant showed him some pictures of nude women. Subsequent to seeing the pictures, Bartley had a conversation with Detective Bob Smith of the Richardson Police Department. On November 7th Detective Smith who had some experience in photography met the appellant in a drug store and the two became engaged in a conversation relative to photography. In the conversation appellant told the detective that he took pictures and requested him to come to appellant’s home and see his photographs so that he could recommend a place where he might sell or distribute them. The following day Detective Smith went to the home where appellant showed him between one and two hundred pictures which were colored slides of different girls. Of the pictures exhibited only one appeared to be obscene, it being a photograph of a woman with her pubic hair exposed. On such occasion appellant emphasized that he was interested in selling the pictures and thought the detective could use some of his contacts in helping him sell them.

After leaving appellant’s home, Detective Smith had a meeting with his Chief of Police and Postal Inspector R. H. Robinson was later called. In a meeting on November 12th with the Inspector, a buyer for appellant’s photographs was set up under the name of Garrett who was to correspond with appellant relative to the pictures. On December 5th Detective Smith returned to appellant’s home and appellant showed him some “series” pictures of the same girl in sequence of undressing. At that time appellant stated he was mailing the pictures to a man by the name of Garrett with whom he had had correspondence. On December 13th Detective Smith again met appellant in the drug store and appellant informed him that he was sending some more pictures to Garrett.

The state’s proof further shows that on January 22nd Detective Smith again saw appellant in the drug store and introduced him to Postal Inspector Harry D. Holmes. After they had discussed going for some coffee the three went outside to where Postal Inspector Robinson and Detective Burleson were seated in an automobile. They then got in the car and the five proceeded to drive to the police station. On the way to the station Robinson and Holmes identified themselves as postal inspectors and told appellant they wanted to talk to him about the pictures After arriving at the police station appellant proceeded to sign and execute a written consent to the search of his home by Inspector Holmes without a search warrant. Appellant then accompanied Inspectors Robinson and Holmes and Officers Smith, Burleson and Robbins to his home where a search was made. In the search the officers found sixteen polaroid pictures on a bed and numerous other pictures in a night stand which were photographs of men and women in the nude. Some of the pictures showed the parties engaged in the act of sexual intercourse and other unnatural sex acts.

Testifying in his own behalf appellant stated that the reason he consented to the search of his home was because of threats of the officers and the representations made to him that they had a search warrant. He further swore that he did not sign the written consent for the search until after the search had been completed, and they had returned to the police station. Appellant admitted possessing the photographs found by the officers in his hotne but stated that he took the pictures upon the encouragement and inducement of Detective Smith and a letter he had received from Garrett.

Appellant’s testimony with reference to his reason for executing the written consent to search was sharply disputed by the officers as well as his claim that he was induced to take the pictures by them. Detective Smith testified that while he did have in his possession a search warrant for appellant’s house he did not advise appellant of the warrant until after he had signed the written consent to search. He swore that appellant signed the consent before the search was made. He also denied having induced appellant to take and possess the photographs found as a result of the search.

The Court submitted to the jury in his charge the disputed issues relative to appellant’s execution of the written waiver and consent, and instructed the jury that if they believed from the evidence or if they had a reasonable doubt thereof, that appellant did not wilfully give his consent to the search prior to the time of the search, or if he signed the waiver to search as a result of threats or after he was told by the officer that they had a search warrant, to wholly disregard the pictures in question and acquit him. The defense of entrapment was also submitted under appropriate instructions.

The jury by their verdict resolved the disputed issues against the appellant.

We first overrule appellant’s contention that the evidence is insufficient to support the conviction because no proof was offered by the state that the pictures introduced in evidence were obscene which term is defined in Sec. 3 of Art. 527, supra, as whether to the average person applying community standards involving a territory or geographic area not less than the State of Texas the material taken as a whole appeals to prurient interest. When testimony was offered by the state as to what the pictures portrayed appellant objected on the ground that the pictures “spoke” for themselves. The trial court agreed with such contention and sustained appellant’s objection. The pictures introduced in evidence showing men and women in the nude engaged in acts of sexual intercourse are clearly obscene as that term is defined in the statute.

It is insisted that the court erred in admitting the pictures in evidence because they were obtained as the result of an illegal search The attack upon the search is predicated upon the contention that the search warrant which the officers had obtained was invalid under the decision in Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. It is also contended that appellant’s arrest by the officers was unlawful and for this reason the search was illegal.

We need not pass upon the validity of the search warrant as the evidence shows that the officers did not search appellant’s home under the authority of such warrant. Nor need we pass upon the validity of appellant’s arrest as we do not have before us the search of a person incident to an arrest. The fact issues as to the validity of appellant’s written consent to search his house were fairly submitted to the jury by the court. By their verdict the jury found that appellant voluntarily consented to the search. By such consent appellant waived any question as to the legality of the search. Ellithorpe v. State, 167 Tex.Cr.R. 266, 320 S.W.2d 350; Lucas v. State, Tex.Cr.App., 368 S.W.2d 605.

We find no error in the trial court’s failure to make an independent finding upon the issue as to whether appellant voluntarily executed the written consent to the search. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, relates to written confessions of an accused and is not here applicable.

Complaint is made to the court’s action in permitting the State to prove the identity of the persons in the pictures which, among other things, revealed that one of the women in the photographs was the appellant’s wife engaged in an act of sexual intercourse with a man by the name of James Stockwell. Objection was also made to certain jury argument of state’s counsel when he stated that appellant had prostituted his own wife. Appellant’s objection to the testimony showing the identity of the persons in the pictures was on the ground that it was highly inflammatory and constituted proof of extraneous offenses. In his brief he also insists that such testimony was in violation of Art. 714 Vernon’s Ann.C.C.P. which prohibits the wife from giving testimony against her husband. The identity of the persons in the pictures was clearly a part of the res gestae and admissible as such. Fite v. State, 163 Tex.Cr.R. 279, 290 S.W.2d 897; Kerrigan v. State, 167 Tex.Cr.R. 601, 321 S.W.2d 884; Bills v. State, 168 Tex.Cr.R. 369, 327 S.W.2d 751. Proof of the identity of appellant’s wife and Stockwell in the pictures was also admissible to rebut appellant’s defense of entrapment in view of Stockwell’s testimony that he had not seen appellant and his wife since the summer of 1962, and it was not until November 1963 that Detective Smith first talked to appellant and began the investigation. Watson v. State, 164 Tex.Cr.R. 593, 301 S.W.2d 651; Ivey v. State, Tex.Cr.App., 212 S.W.2d 146.

Appellant’s remaining complaints are to certain comments by the trial court which he insists were in violation of Art. 707 V.A.C.C.P.

The first comment occurred when appellant objected to the admission in evidence of certain photographs on the ground that the affidavit for the search warrant was void and the Court stated: “We are not operating on that Mr. Benevides. I think I have made that pretty clear”, and during the cross-examination of appellant’s wife by state’s counsel with reference to the objects taken from the home when an objection was made by appellant’s counsel, the court stated: “You opened it up on the hundred objects taken”.

To offend against the statute, Art. 707, supra, there must be found in the court’s remarks a benefit to the state or an injury to the accused. Hackett v. State, 172 Tex.Cr.R. 414, 357 S.W.2d 391. We find neither benefit nor injury in the court’s comments and overrule the contention.

The judgment is affirmed.

Opinion approved by the Court.


text:
    R. F. TOWNE, Appellant, v. The STATE of Texas, Appellee.
    No. 38525.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1965.
    Rehearing Denied Dec. 15, 1965.
    Leslie E. Bauch, Corpus Christi, for appellant.
    Sam L. Jones, Jr., Dist. Atty., John R. Haas, Asst. Dist. Atty., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for defrauding by worthless check; the punishment, enhanced under Art. 62, Vernon’s Ann.P.C., by reason of a prior conviction for an offense of like character, ten years.

On a former appeal to this court, appellant’s conviction for giving the same check in question was reversed because the evidence was insufficient to sustain the allegations of the indictment. Towne v. State, Tex.Cr.App., 385 S.W.2d 854.

This is an appeal from a conviction upon a new indictment subsequently returned against appellant, charging the same offense.

The indictment charged in the second count, which was submitted to the jury, that on or about the 2nd day of December, 1963, the appellant did, with intent to defraud, make and deliver to Mrs. George L. Cameron a certain check in the amount of $72.82, drawn on the First State Bank of Corpus Christi, knowing at such time that he did not have sufficient funds on deposit in said bank to pay said check as well as all other checks then outstanding.

It was further alleged in the indictment that prior to his commission of the primary offense, the appellant had been finally convicted in the 105th Judicial District Court of Nueces County, in Cause No. 10818, of a felony offense less than capital and of like character, to-wit: passing a forged instrument.

The state’s evidence shows that on the 2nd day of December, 1963, the appellant went to the Cameron Manufacturing Company in the city of Corpus Christi and purchased certain material used in the upholstery of automobiles. An invoice was made for the purchase, which appellant took to Mrs. George L. Cameron, who was the bookkeeper and cashier of the business. Appellant then proceeded to make, sign, and deliver to Mrs. Cameron a check in the sum of $72.82, which was the amount of the invoice. The check, which was drawn on the First State Bank of Corpus Christi, was deposited to the account of Cameron Manufacturing Company for collection. In due course it was returned to the bank unpaid, bearing the notation “ ‘Unable to locate account.’ ”

It was shown by the testimony of the bank’s cashier, Roger George, that appellant had no account in the bank during the month of December, 1963, or in the year 1964, and that his account in the bank had been closed in 1955.

Proof was made of appellant’s prior alleged conviction for passing a forged instrument, in the manner which has been approved by this court, by the introduction in evidence of certain authenticated records of the Department of Corrections and the comparison of fingerprints by an expert. Appellant was also identified at the trial by deputy sheriff William L. Burch as the person previously convicted, in the year 1962, in the 105th Judicial District Court of Nueces County, of the offense of passing a forged instrument.

We overrule appellant’s contention that the evidence is insufficient to support the conviction because no false representations were proved by the state.

The indictment under which appellant now stands convicted did not allege that he made any false representations to the injured party when he delivered the check to her. It alleged only that he delivered the check with intent to defraud. This distinguishes the case from the prior case, in which the judgment of conviction was reversed because the false representations alleged in the indictment were not proven.

E2] The contention presented by appellant, in his brief, that the trial court gave additional instructions to the jury in his absence in violation of Articles 676, 677, and 679 of Vernon’s Ann.Code of Criminal Procedure, is not before us for review in the absence of a bill of exception presenting such matter.

The sentence imposed by the court provides that appellant be confined in the penitentiary for a term of not less than two (2) nor more than ten (10) years. The same is reformed so as to provide for no minimum punishment and to read that he be confined in the penitentiary for a term of ten (10) years. Art. 62, supra.

As reformed, the judgment is affirmed.

Opinion approved by the court.


author: BELCHER, Commissioner.

text:
    Billy Ray BENNETT, Appellant, v. The STATE of Texas, Appellee.
    No. 38481.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1965.
    Rehearing Denied Dec. 15, 1965.
    Lewis L. Scott, Marshall, for appellant.
    Ralph Prince, Dist. Atty., Nathan Holt, Asst. Dist. Atty., Longview, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for burglary; the punishment, ten years.

The testimony sufficiently shows the unlawful and forcible breaking and entering of a closed building in which Allen Hol-combe as owner operated a men’s clothing store, that the forcible entry was without his consent, and the taking therefrom by someone of 100 suits of men’s clothing, 300 pairs of shoes, shirts and socks, and certain other merchandise of the total value of $10,300, was without his consent.

On July 10, and 14, 1964, following the burglary June 8, 1964, the officers found a quantity of merchandise in the possession of Judy Lott in Dallas. The testimony further shows that Allen Holcombe, the owner and operator of the clothing store, positively identified several men’s suits, boxes containing shoes and other merchandise which the evidence shows were found in the possession of Judy Lott as being part of the merchandise taken from his store at the time in question.

Appellant’s confession was introduced in evidence.

Omitting the formal parts the statement reads as follows:

“My name is Billy Ray Bennett
I live 2911 Forrest Ave., Dallas, Texas.
On about June the 8th., 1964 I left Dallas, Texas in my 1959 Chrysler Imperial car and drove to Gladewater, Texas. It was about six o’clock in the afternoon when I left Dallas. It took me about two hours to get to Glade-water. After I got to Gladewater I drove by a mens clothing store that was on the main highway that I come in on coming from Dallas to Gladewater. There was a Drug Store in the building that was connected to the mens clothing store. I parked my car on the side street and to the rear of this store. I entered the clothing store through the back door. I removed the door from the hinges and knocked a pad lock off to get this door open.
After I got in the clothing store I loaded up shoes, socks, shirts, suits, pants, sport coats, underwear, cologne and after shave lotion and numerous other mens and boys items. I carried the above items to my car and loaded them in. It took me about two hours to get all of the above stated items out of the store and loaded in my car. I then drove back to Dallas, Texas and went to Judy Lott’s house which is located in the Oak Cliff section of Dallas. Judy Lott is the wife of Frank Lott who is connected to the Lott Funeral Home on Forrest Ave. in Dallas. I sold all of the merchandise I took from the mens store in Gladewater, Texas to Judy Lott. I unloaded the merchandise in Judy Lotts house that same night I took it from the store in Gladewater. Judy did not pay me that night but two nights later she paid four hundred dollars to me. She was to pay me another hundred dollars later but to this date she has not paid me.
About a month before I hit the store at Gladewater I had talked to Judy Lott about selling her some merchandise. This was when I had first seen the store at Gladewater. I had been to Long-view, Texas looking around when I first noticed the mens store in Glade-water. Judy Lott knew that the merchandise I sold her as above stated was stolen merchandise. Judy Lott paid me cash money when she paid me.
No one gave me permission to enter the above stated mens clothing store located in Gladewater, Texas, and no one gave me permission to take any thing from this store.”

The appellant did not testify or offer any evidence in his behalf.

The voluntary nature of the written statement was properly submitted to the jury.

Appellant filed a motion to quash the indictment on the ground of racial discrimination in the selection of the Grand Jury which returned the indictment against him.

The motion alleged that the prospective Grand Jurors were drawn in such manner as to systematically exclude persons from Grand Jury service who were of the Negro race; and that such exclusion deprived him of the equal protection of the law and due process under the U. S. and Texas Constitutions.

In support of the motion, the appellant called as witnesses the five jury commissioners who selected the Grand Jury panel that returned the indictment herein, and their testimony reveals that the trial judge instructed them to select qualified persons, and not to discriminate as to race, color or sex; and that race was not considered in making their selection and that no person was deliberately left off the panel. One commissioner stated that he had served on the Grand Jury with a Negro about one year previously; and another said he had served on the Grand Jury with members of the colored race three or four years ago in Gregg County. A Negro minister testified that during the eighteen years he had lived in Gregg County there may have been some Negroes on the Grand Jury but he did not know of them. On cross-examination by the appellant, Judge David Moore testified that he had been district judge since 1955; that Negroes had served on the Grand Juries in his court; and that he was not sure but he thought he had seen three or four Negroes serve at one time. The refusal of the motion to quash was not error.

Before any written statement of the appellant was mentioned or referred to the jury was retired. In their absence the state offered evidence which reveals that on November 11, 1964, Deputy Sheriff Owens took the appellant into custody by virtue of an arrest warrant; that he talked with him about the burglary of the Holcombe Store, and the appellant told him that he would make a written statement to him about the burglary. At this time the appellant was advised of his right to counsel and he said he had talked to an attorney but he did not request one. Officer Owens warned the appellant in accordance with the statute, and the appellant then made a statement to him which was reduced to writing and signed by him. The testimony of two other officers corroborated that of Officer Owens. The appellant did not offer any testimony.

At the conclusion of the hearing, in the absence of the jury, the trial court made an independent finding that the written statement of the appellant had been voluntarily made after he had been warned according to law and after his rights to an attorney had been explained to him and he had waived the same.

In the presence of the jury, the state offered proper and sufficient evidence for the admission of appellant’s written statement into evidence. The warning in the statement recited in part: “That I have the right to consult a lawyer; which right I hereby waive.” When it was offered the appellant stated “on behalf of the defendant we would like to object to the submission of this evidence.” Said statement was admitted in evidence and read to the jury.

It is contended that the evidence is insufficient to support the conviction on the ground that no evidence other than his written statement was introduced showing that he burglarized the Holcombe Store or ever had in his possession any merchandise taken from the store.

The evidence outside of and other than the written statement of the appellant shows that the burglary had been committed by someone. Under such facts, the evidence is legally sufficient to sustain the conviction under the rule that where the corpus delicti is established by other testimony the extra-judicial confession of an accused is sufficient to show his guilt of the offense shown. Nixon v. State, 159 Tex.Cr.R. 548, 266 S.W.2d 150; Estes v. State, 160 Tex.Cr. R. 632, 274 S.W.2d 411.

The evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.


author: MORRISON, Judge. DICE, Commissioner.

text:
    Leon Willis JOHNSTON, Appellant, v. The STATE of Texas, Appellee.
    No. 38181.
    Court of Criminal Appeals of Texas.
    June 2, 1965.
    Rehearing Denied Oct. 20, 1965.
    Second Motion for Rehearing Denied Dec. 8, 1965.

      L. J. Varnell, Jr., Herman Fitts, Mineral Wells, for appellant.
    Sam Cleveland, Dist. Atty., Stephensville, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is statutory rape; the punishment, death.

The mother of the injured girl testified that on March 7, 1964, the day after her eighth birthday, her daughter dressed and left the house at S :20 p. m. to go for a walk in the neighborhood with instructions not to go farther than Second Avenue, that at S :55 p. m. her daughter came running home screaming and crying and said “Oh Mother, this man took me out away out into the country and laid his body up close to my little body”, and “it hurt so bad, mother”. She immediately called the police and a physician, and the girl was taken to the clinic.

The injured girl testified that she was eating an apple and that she was pausing on a bridge over a canal not far from her house watching the fish when a man whom she thought worked with her father stopped in a white pickup and asked her if she wanted a ride home. As she went around the back of the pickup she observed the word “Ford” in red letters. Instead of taking her home, appellant, whom she positively identified at the trial, drove past the end of the pavement, turned off the road and came to a halt near an abandoned barn. Appellant instructed her to take off her pants and shoes and sox. When she demurred he stated, “I’ll never take you home if you don’t do what I say”. She complied and also obeyed his command that she lie down on the seat of the pickup. Whereupon appellant unzipped his pants, took out the “thing that he goes to the bathroom with” and put it in “mine”. Just before doing so, appellant opened a colored box and put some “medicine” down between her legs. When she cried out in pain appellant told her to “shut up” or he would not take her home. After some time appellant let her up, told her to redress herself and returned her to a spot some two blocks from her home where he let her out and admonished her not to run or to tell anyone. She testified that she directed the officers to the spot near the abandoned barn and identified pictures thereof which were introduced in evidence.

Dr. O’Quinn testified that he examined the injured child before 7:00 p. m. on the night in question and found blood coming from the vaginal area, a tear in the hymen and live sperm which, in his opinion, had been placed there “within hours” before.

Mr. Gaither, a witness, testified that he came out from Fort Worth on “an assignment to pick up a pickup” from appellant in Mineral Wells and finally was able to locate it and take it into his possession on March 7, 1964, at approximately S :50 p. m. He had started back to Fort Worth when he was taken into custody by the Sheriff. Later that night he was released and returned to Fort Worth. The following day the officers came to Fort Worth, took pictures of the pickup and its underside and took with them the front and rear wheels from the right side of the pickup.

Sheriff Sommerfeld testified about apprehending the pickup which Gaither was driving and proceeding under the direction of the injured girl to the abandoned barn where he recovered an old automobile hood from the ground, from which he detected tire tracks which corresponded in every detail with those from the tires on the wheels which had been taken from the pickup in Fort Worth.

Two days after the offense, Ranger Lynch went with appellant to a spot where appellant told him he had thrown a container of “greasy stuff” and there found a colored container with metal top and bottom which was shown by the testimony of a chemist from the Department of Public Safety to contain a form of petroleum jelly identical to that found on the panties of the injured girl which also had been submitted to him for inspection by the Palo Pinto County officers. These are but a few of the minute details of this crime which were developed and presented by one of the most competent District Attorneys of our time.

Appellant’s written confession was admitted over the sole objection that “the defendant did not have sufficient mentality to understand the nature and effect of this statement at the time he made it.” Since the voluntary nature of the confession had not been and was not challenged in any way throughout the trial, and since there had been no evidence as to appellant’s “mentality” at the time the statement was offered, the court clearly ruled properly in admitting it in evidence.

Appellant called lay witnesses who testified that as a child he had not acted like other children and who “always felt like he just wasn’t all there.” However, his own witnesses testified that he had graduated from high school as an average student, had served a “hitch” in the Navy and was honorably discharged. Appellant’s principal witness was a neuropsychiatrist, Dr. Rubin, who had examined appellant one time since the commission of the offense, and who testified that in his opinion appellant was mentally ill in the realm of undifferentiated schizophrenia and was not in constant touch with reality at all times. However, Dr. Rubin testified that appellant knew the difference between right and wrong.

The State offered lay testimony that appellant was in their opinion of sound mind and the testimony of a practicing physician of 50 years experience who had interviewed appellant on frequent occasions prior to the trial and who expressed the opinion that he was of sound mind.

The evidence amply supports the conviction and the jury resolved the disputed issue of appellant’s insanity against him.

We shall now discuss the remaining contentions advanced by appellant’s two extremely diligent and conscientious court appointed attorneys in brief and in argument.

Attached to appellant’s motion for new trial alleging jury misconduct are the affidavits of juror Bailey and juror Harris in which they state that during their deliberations the foreman or one of the jurors stated that if the death penalty was given there would be an automatic review of the case by the Board of Pardons and Paroles and by the Governor. Also attached thereto is an affidavit of one of appellant’s court appointed attorneys which states that he interviewed juror Clark, who told him that during their deliberations one or more of the jurors stated “that there had been too much of this kind of thing going on and that something needed to be done about it,” but that Clark declined to made an affidavit to such fact.

At the hearing on the motion nine jurors testified, and the affidavit of another was introduced. Appellant called jurors Bailey, Clark, Harris and Berry.

Bailey testified that a question was raised as to what would happen in case the jury voted the death penalty, and one of the jurors answered that there would be an automatic appeal to the “State Board of Appeals” and then an automatic appeal to the Board of Pardons.

Clark testified that he had heard some people say that “there is a lot of that kind of thing going on”, but did not recall saying that he had heard others say “that something needed to be done about it.” He further stated that juror Berry had mentioned “appeal courts”, but there was no discussion of the subject.

Harris testified that his affidavit was in error and that the question was answered by foreman Berry, who stated that the case “could” or “would” go to the Court of Criminal Appeals.

Berry testified that he answered the question by stating that the case could be appealed to a higher court and the Board of Pardons and Paroles, but that he did not say it would be automatic or mandatory.

The State called juror Kincaid, who stated that the question was answered by one of the jurors who said that the case could be appealed but nothing was mentioned about such appeal being mandatory.

Appellant then called jurors Murphy and Kaminsky. Mrs. Murphy stated that the question was answered by some juror who said the case could be appealed to a higher court and that she also heard several jurors state “there has been too much of this kind of thing going on” and “something needed to be done about that sort of thing.” Kamin-sky testified that the question was answered by some juror who stated that the case could be appealed and reviewed by a higher court. The affidavit of juror Van Natta was to the same effect.

We have reviewed the testimony with care because of the earnest efforts of court appointed counsel.

In Roberson v. State, 160 Tex.Cr.R. 381, 271 S.W.2d 663, we said “Our primary concern is to determine whether or not the information which was received by the jury was untrue or was harmful to appellant.” Since an issue of fact was raised it then became the province of the trial court to decide the same. Be this as it may, we observe that in the recent case of Ex Parte Caldwell, Tex.Cr.App., 383 S.W.2d 587, this Court granted a writ of habeas corpus in a death penalty case and remanded the case to the trial court for retrial where notice of appeal in the accused’s purported appeal had not been timely filed. By this action we demonstrated that in Texas all death penalty convictions can receive a review by this Court as a matter of right.

Since the allegation in the motion for new trial concerning a reference to the Halford case is not supported by the requisite affidavit of anyone in a position to know whether such a matter transpired within the jury room, that portion of the motion before the trial court was insufficient as a pleading; the trial court is not authorized to consider the same, and this Court will not consider the evidence adduced as to such matter. Vowell v. State, 156 Tex.Cr.R. 493, 244 S.W.2d 214; Clay v. State, 157 Tex.Cr.R. 32, 246 S.W.2d 180; Valdez v. State, 157 Tex.Cr.R. 363, 248 S.W.2d 744; Brown v. State, 160 Tex.Cr.R. 150, 267 S.W. 2d 819; and Holmes v. State, 169 Tex.Cr.R. 343, 333 S.W.2d 842.

At the hearing on appellant’s motion for change of venue, appellant called four representative citizens and one of appellant’s attorneys who testified that in their opinion appellant could not receive a fair trial because three alleged rapes had occurred in the county in the last fourteen months or two years, and the people of the county were, in their opinion, aroused against anyone charged with this particular offense. None of them mentioned any prejudice against appellant individually, hut confined their concern to the crime for which he was to he tried. The State called four equally representative citizens who testified that they had heard very little discussion of the case against appellant and who expressed the opinion that appellant could secure a fair and impartial jury and trial in Palo Pinto County.

The voir dire examination of the panel from which the jury which tried appellant was chosen is not brought forward in this record; however, it is shown that appellant had not exercised all of his peremptory challenges at the time the panel was completed. There is no showing as to how many veniremen were excused because of fixed opinion. There is a complete absence of any showing that prejudice against the appellant found its way into the jury box at his trial. This Court has held that such is requisite and the fairest test of whether venue should be changed. Jones v. State, 156 Tex.Cr.R. 248, 240 S.W.2d 771; Jones v. State, 156 Tex.Cr.R. 475, 243 S.W.2d 848; Johnson v. State, 244 S.W.2d 235; Golemon v. State, 157 Tex.Cr.R. 534, 247 S.W.2d 119; Lopez v. State, 158 Tex.Cr.R. 16, 252 S.W.2d 701; Aaron v. State, 161 Tex.Cr.R. 156, 275 S.W.2d 693; McCarley v. State, 161 Tex.Cr.R. 263, 276 S.W. 2d 300; Kizzee v. State, 166 Tex.Cr.R. 191, 312 S.W.2d 661; Slater v. State, 166 Tex.Cr.R. 606, 317 S.W.2d 203; Mason v. State, Tex.Cr.App., 375 S.W.2d 916; and Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872.

Finding no reversible error appearing, the judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant, in his motion for rehearing, in addition to re-urging his original contentions, insists that his confession should not have been admitted in evidence because he was not represented by counsel during his interrogation by the officers and when he signed the confession. This, he insists, constituted a denial of his right to the assistance of counsel, under the Sixth Amendment to the Constitution of the United States, and to due process of law, under the Fourteenth Amendment. Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, is relied upon in support of the contention.

The contention is also made by appellant that he was denied due process of law because he was not immediately taken before a magistrate after his arrest, as provided by Art. 217 of the present Code of Criminal Procedure.

The facts surrounding the - making of appellant’s confession show that he was taken into custody by the officers at his home on a Sunday night between 8 and 9 p. m. From there he was taken to the police station, where he was questioned by the district attorney. At approximately 11 o’clock, p. m., the same night, he made and signed the written statement introduced in evidence. The failure to take appellant before a magistrate on a Sunday, between such hours, did not constitute an unreasonable delay. Gilbert v. State, 126 Tex.Cr.R. 290, 284 S.W.2d 906; Childress v. State, 166 Tex.Cr.R. 95, 312 S.W.2d 247; Creswell v. State, Tex.Cr.App., 387 S.W.2d 887. The claim of a denial of due process is overruled.

Appellant’s claim that he was denied the right to the assistance of counsel, as guaranteed by the Sixth Amendment to the Federal Constitution, is not supported by the record, as there is no showing that at any time before signing the confession he asked to consult with an attorney. This, in itself, distinguishes the case from Escobedo v. State of Illinois, supra. Such has been the holding of this court. See: Miller v. State, Tex.Cr.App., 387 S.W.2d 401; Hinkley v. State, Tex.Cr.App., 389 S.W.2d 667; Corry v. State, Tex.Cr.App., 390 S.W.2d 763.

Remaining convinced that a proper disposition was made of the case on original submission, the motion for rehearing is overruled.

Opinion approved by the court.


text:
    Austin Norris KING, Appellant, v. The STATE of Texas, Appellee.
    No. 38753.
    Court of Criminal Appeals of Texas.
    Dec. 1, 1965.
    C. C. Divine, Houston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is murder; the punishment, 25 years.

The indictment alleged the killing of Elgene Carter by shooting her with a gun.

The evidence shows that the deceased was the sister of appellant’s wife and that they lived in the same house.

The body of the deceased was lying on a couch in the house when officers responded to a call. Gunshot wounds from a pistol taken from appellant when he presented himself at the police station were shown to have caused her death.

The appellant made no statement connecting him with the killing and no eye witness testified.

The state relied upon circumstantial evidence.

Mattie Green testified that appellant’s wife ran into her house through the back door hollering: “He shot my sister.”

To connect appellant with the murder of his sister-in-law and to show that his wife’s res gestae statement referred to him, the state relied upon the testimony of Dan Griffin.

Griffin testified that he was raking hay when he noticed a disturbance across the street.

“Q. What was taking place over there —tell the jury what you saw?

“A. Well, I seen two colored women and one colored man there arguing. It was a vacant house on the side next to the street that runs down to Rodney Green’s, and they were living in the next house from that.

“Q. You said you saw two colored women and one colored man?

“A. Yes, sir.

“Q. Where were they when you first noticed them ?

“A. They were right along about, oh, I reckon near the center of the house, the vacant house that there wasn’t anyone living in.

“Q. Tell the jury, Dan, whether or not you heard some shots? * * *

“A. Yes, sir, I heard some gun shots over there.

“Q. Do you recall how many times ?

“A. No, sir, I don’t recall how many times it was.

“Q. Tell the jury what you saw the people you described do after the shots were fired?

“A. Well, first I seen a lady come out from around the house and come right on down across the pavement from me, and went right on into Rodney Green’s back door, and shut it behind her, shut the door behind her. And then, in just a few minutes, I don’t know how many little children it were, they come out from around there hollering and screaming, and going toward Rodney Green’s — old man Rodney Green’s.

“Q. Tell the jury what the man you saw did?

“A. Well, he stayed around there a pretty good while, and then he come on out from back there, walking, just walking along ordinary. He come on out and set in his car right near Tabor Street, and he set there for a long time, and then all of a sudden he backed out, and the last I seen him he was going back up by the Catholic Church, that was coming on, of course, further up here in town, — I reckon he were co.uing to give up—

“Q. Okay. I didn’t ask you a minute ago, but I want to ask you now, could you tell from where you were the direction that the shots had come from?

“A. No, sir, I couldn’t.

“Q. But immediately after the shots you would state to the jury that you saw some activity among these three people you described?

“A. Yes, sir.

“Q. Do you see that man in the Courtroom today?

“A. That man right there (indicating the defendant) looks like he could be his sise and his height. He had on a hat.”

The evidence shows that three children of the deceased and her husband were living with her.

Patrolman Henry Johnson, the first officer to arrive at the house, testified that 4 crying children approached him as he arrived. He testified:

“Q. Would you give the approximate ages of those children, if you can, or their size?

“A. Well, I believe the little girl was around 8, and I believe one of the boys was around 7. Looked like one was about 9, and one looked to be about 4 years old.”

He further testified that the children told him “that their mother had been shot.”

The evidence is insufficient to sustain the conviction under the rule found in 24 Tex.Jur.2d 427, Evidence, Section 745:

“Where circumstantial evidence relied on by the prosecution is obviously weak, and where the record on appeal affirmatively shows not only that other testimony which would have cast additional light on the facts was available to the prosecution, but also that the prosecution did not introduce such other evidence or satisfactorily account for its failure to do so, the appellate court will treat the case as one showing reasonable doubt of the sufficiency of the evidence to support the conviction. * * * ”

Upon another trial evidence showing that appellant had been previously charged or convicted for negligent homicide should not be admitted.

The judgment is reversed and the cause remanded.


text:
    Harold C. HINTZ, Appellant, v. The STATE of Texas, Appellee.
    No. 38426.
    Court of Criminal Appeals of Texas.
    Oct. 27, 1965.
    Rehearing Denied Dec. 15, 1965.

      Glenn Hausenfluck, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Roland H. Hill, Jr., Albert F. Fick, Jr., and Truman Powers, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is murder; the punishment, death.

The state’s evidence shows that appellant and the deceased were husband and wife. The two lived in a room which they rented from Mr. and Mrs. W. D. Yates at 90S Southland in the city of Fort Worth. On Sunday afternoon, February 16, 1964, Mr. and Mrs. Yates saw the deceased leave the premises, which was the last time they saw her alive. At such time, appellant was inside the house and the next time he was seen by either of them was on February 27, when Mr. Yates saw him, early in the morning, asleep in his automobile, parked a block away from the house. When Mr. Yates asked him about his wife appellant stated that she had been staying with a friend who was sick. Yates then returned to the house and called the deceased’s mother. Two hours later the mother and a daughter came to the Yates’s home. Mr. Yates then unlocked the door to appellant’s room and the three went inside. Nothing unusual was found in the room, and they all left. Later in the afternoon, Mrs. Yates came home from work and went into appellant’s room, where she raised up the bedspread and could see blood. She realized that something was under the bed, and ran out. Mr. Yates then entered the room and found the deceased’s body, wrapped in a blanket, lying on the floor under the bed.

When found, the deceased’s body was lying on its back, with visible cuts on the face and lips. The head and hair were matted to the floor with blood. An examination of the bed revealed that the bedclothes were bloody, and there were pieces of glass in the bed. Broken pieces of what appeared to be a water bottle were found under the pillow. A number of beer cans were also in the room.

An autopsy was later that day performed upon the deceased by Dr. Feliks Gwozdz, a licensed physician and pathologist. Dr. Gwozdz testified that in the examination he found multiple bruises and lacerations over the facial features and head; that in his examination of the throat and larynx area he found a deeply discolored area beneath the laryngeal region with indentation and very distinct markings going toward the area behind both ears; and that he found, when he opened the area, a fracture of the left part of the hyoid bone, which is the bone that supports the larynx and also the tongue. Dr. Gwozdz testified that, from the autopsy, he determined that the cause of the death of deceased was generalized anoxia due to strangulation and that the deceased must have been dead for several days. The doctor further stated that he was unable to determine by what means the strangulation occurred and that it was possible that the deceased was strangled by the hands of an individual or by the use of a cord.

It was further shown that appellant was arrested at approximately 3 a. m. on February 28, 1964, after he was discovered, apparently asleep, in his automobile, parked about three blocks from the residence at 905 Southland. Fifteen minutes later he was registered in jail. At 3:10 p. m. on the same day, appellant made and signed a written statement to Officer E. L. Harrison in which he admitted killing the deceased.

The statement was introduced in evidence as state’s exhibit #11, and reads, in part, as follows:

"On the morning of February 17, 1964— around 8:30 A.M. after a night of drinking and arguing, I was so enraged that I picked up a heavy glass water bottle (refrigerator type) which we kept on the night stand, and struck my wife on the head with it. The bottle broke. She started screaming and I started choking her with my thumbs pressing into her throat. I did this to quiet her screaming. At this point I must have passed out and woke up approximately two hours later and looked over the side of the bed and my wife was lying on the floor on the east side of the bed clad in a pink robe and a pair of panties. Then I noticed an electric percolator cord wrapped around her neck. When I saw the cord I took it off of her neck. I either put this cord in the desk drawer or plugged it back into the outlet. I noticed that she did not move and I got sick and went to the bathroom. Then I came back and she still had not moved any. I drank a couple of beers then. I kept waiting for her to move and when she didn’t move I presumed she was gone. I took the sheet off the bed and threw it over her and slid her under the bed on the east side of the bed. I drank some more beer and picked up some broken glass that was on the floor and put it in a trash sack by the night stand. There was some broken glass on the bed so I pushed it under the pillow on the west side of the bed. I put the spread over the bed and made the bed up. I drank the last of the beer so I left the apartment to get some more beer. I returned to the apartment again late Monday night, February 17, 1964. I spent the night there, sleeping on top of the bed. I left on Tuesday morning and drank some more beer. I do remember spending several nights sleeping in my car. I returned to the apartment on Friday morning, February 21, 1964— and cleaned up and left the apartment again. This was the last time I was in the apartment. I spent the rest of the time sleeping in my car at night.”

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

At the conclusion of the state’s case, the court, in response to appellant’s motion for an instructed verdict of not guilty, withdrew from the jury’s consideration the second count of the indictment and submitted to them the first and third counts.

In the first count it was alleged that appellant killed the deceased “by choking and strangling her with his hands,” and in the third count it was alleged that he killed her “with a water bottle or with a glass container or a glass jug or in some way or manner and by some means, instruments and weapons the exact nature of which is unknown to the Grand Jury.”

The jury, in response to the court’s charge, returned a general verdict of guilty.

We overrule the contention predicated upon appellant’s bill of exception #3 that the court erred in overruling his motion for an instructed verdict of “not guilty.”

The testimony of Dr. Gwozdz is sufficient to support a finding that the deceased died as a result of being strangled by the hands of an individual.

In the present case there is evidence to support a finding of the guilt of appellant under either the first or third count of the indictment. Under the record, the court did not err in submitting both counts to the jury and permitting the jury to return a general verdict of guilty without designating under which count guilt was found.

In Cavazos v. State, Tex.Cr.App., 365 S.W.2d 178, we said:

“Only one offense was charged and that was murder. Where a general verdict is returned, and the evidence is sufficient to support a finding under either of two counts submitted, as there was in the instant case, no error is presented. [Cases cited]”

By bill of exception #2, appellant complains of the court’s refusal to grant his motion for a continuance, sought on the ground that he and his attorney had not had an opportunity to examine and study the report of a psychiatrist who had been appointed by the court to examine appellant.

The record reflects that the report was filed in the cause on September 16, 1964, the date the trial commenced. In the report, the psychiatrist, Dr. Harold B. Mindell, stated, in effect, that he found no evidence of insanity.

In the recent case of McIntyre v. State, 172 Tex.Cr.R. 510, 360 S.W.2d 875 (certi-orari denied 371 U.S. 867, 83 S.Ct. 130, 9 L.Ed.2d 104), it was held that no error could result from the court’s refusal to grant a continuance on the grounds that the report of a psychiatrist had not been received by appellant’s counsel prior to trial, when the report subsequently received stated that it was the feeling of the examiner that the accused was sane.

The bill is overruled.

Bill of exception #5 presents appellant’s complaint to the admission in evidence of his written confession, state’s exhibit #11.

The record reflects that when the confession was first offered by the state, the jury was retired and, in its absence, testimony was presented by the state relative to its execution and admissibility.

Detective Harrison testified that he first talked to appellant in the interrogation room. After appellant indicated he would make a statement, the officer read to him the statutory warning. Appellant then proceeded to dictate the confession to Mrs. Hill, a secretary. After he finished dictating the confession it was typed by the secretary and appellant signed the same.

Appellant objected to the admission of the confession in evidence on the ground that he had not been given the warning prior to the time he actually made the statement to the officer. Such objection was by the court overruled with the statement by the court that the same was admitted in evidence “as complying to both State of Texas laws concerning the taking of voluntary written confessions and the federal laws concerning the taking of written confessions.”

The court did not err in overruling appellant’s objection to the confession. The fact that Officer Harrison did not warn appellant when he first talked to him did not vitiate the confession. The warning given to appellant prior to the time he made the confession introduced in evidence was sufficient. Campbell v. State, 172 Tex.Cr.R. 431, 358 S.W.2d 376.

After overruling appellant’s objection to the confession, the jury returned to the courtroom and similar evidence was again adduced relative to appellant’s making the confession. In the jury’s presence it was brought out by appellant in his examination of Officer Harrison that when he first talked to appellant he did not ask him if he would like to consult with an attorney, nor did he tell him “anything about his rights at that time.”

Appellant then stated that he objected to the introduction of the confession for the following reasons:

“(1) the statement was actually and for all practical purposes made prior to the time that the defendant was given the statutory warning, (2) the defendant was not advised by the officer taking the statement that he was entitled to counsel and (3) the defendant had been incarcerated, we know, for several hours prior to the time the statement was given. This officer is in no position to know what strain and stress he went through prior to the time this statement was taken. We contend the statement is not a voluntary statement. For those reasons we object to the introduction of State’s Exhibit Number 11.”

The court proceeded to overrule the objections and admit the confession in evidence. The same was then read to the jury.

After the confession was read, appellant, on recross-examination of Officer Harrison, elicited from him testimony to the effect that when he first talked to appellant he (appellant) was nervous and upset. When asked if appellant was distraught or calm, the officer testified he was upset and that “He didn’t act like an ordinary prudent person would.”

We are unable to agree with appellant that the court erred in admitting the confession in evidence because no independent finding was made by the trial court as to its voluntary nature, as required by the Supreme Court in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, and by this court in Lopez v. State, 384 S.W.2d 345. The statement made by the court in overruling appellant’s objection to the confession when it was first offered was a finding that it was voluntarily made. No evidence was, in fact, presented raising an issue as to the voluntary nature of the confession prior to the time it was admitted in evidence.

No request was made by appellant that an issue as to the voluntary nature of the confession be submitted to the jury. There is no proof that appellant made any request to consult with counsel. Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, has no application.

Bills of exception #4, 6, and 7 present appellant’s complaint to the court’s charge.

Complaint is made in bill of exception #4 to the court’s failure to charge the jury on the law of circumstantial evidence.

Appellant’s written confession, stating that he choked the deceased and that she did not thereafter move, was sufficient to take the case out of the realm of circumstantial evidence. Morris v. State, 168 Tex.Cr.R. 29, 322 S.W.2d 632.

In bill #6 and 7, appellant complains of the court’s charge on intent to kill and the refusal of his requested charge on the same subject.

The court, in his charge, after defining murder with and without malice and submitting to the jury the issue of appellant’s guilt of both grades of murder, instructed them as follows:

“You are further instructed that even though you should find from the evidence that the defendant did choke and strangle Elloyse O. Hintz or killed Elloyse O. Hintz with a water bottle or with a glass container or glass jug or in some way or manner and by some means, instruments and weapons the exact nature of which are unknown, yet if you find from the evidence or if you have a reasonable doubt thereof that the defendant did not then intend to kill the said Elloyse O. Hintz, then you will not convict the defendant of murder, either with or without malice, but may consider only whether he is guilty of an aggravated assault.”

Appellant objected to the court’s charge on the ground that it shifted the burden of proof from the state to appellant, and requested the following instruction which was by the court refused:

‘You are further instructed that even though you should find from the evidence beyond a reasonable doubt that the defendant did choke and strangle Elloyse O. Hintz or killed Elloyse O. Hintz with a water bottle or with a glass container, or a glass jug, or in some may or manner and by some means, instruments and weapons, the exact nature of which are unknown, yet unless you further believe from the evidence beyond a reasonable doubt that in so doing the defendant then and there had the intent to kill the deceased, then you cannot convict him of murder, either with or without malice; and if you do not so believe from the evidence beyond a reasonable doubt, then you will acquit the defendant of murder and consider only whether he is guilty of aggravated assault.’ ”

While it would have been better for the court to have given appellant’s requested charge, we are unable to agree that the court’s .charge shifted the burden of proof to appellant. Under either charge, the jury was required to find that appellant intended to kill the deceased before convicting him of murder. If there be any error in the charge given by the court, it was not reasonably calculated to injure appellant and does not present reversible error. Art. 666, Vernon’s Ann.C.C.P.

Complaint is made in bill of exception #1 to a portion of the opening argument of assistant district attorney Roland Hill, which appellant insists was a reference to his failure to testify.

The bill certifies that the argument was not objected to by appellant when made but that appellant’s objection was first made in his amended motion for new trial. In the absence of an objection by appellant to the argument at the time it was made, the bill presents nothing for review. Young v. State, 163 Tex.Cr.R. 30, 288 S.W.2d 116. We have, however, considered the argument in light of the record in the case and do not agree that it was a reference to appellant’s failure to testify. If the question was before us for review, no reversible error would be presented under the decisions of this court in Lewis v. State, 155 Tex.Cr.R. 514, 236 S.W.2d 812, Hart v. State, 163 Tex.Cr.R. 472, 293 S.W.2d 659, and Williams v. State, 169 Tex.Cr.R. 370, 333 S.W.2d 846.

The judgment is affirmed.

Opinion approved by the court.


author: McDONALD, Presiding Judge.

text:
    C. L. McCALEB, Appellant, v. The STATE of Texas, Appellee.
    No. 38797.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1965.

      Brown & Shuman, by Clifford W. Brown, Lubbock, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The conviction is for violation of the Securities Act. Punishment was assessed at $2,000 fine and 5 years in the penitentiary.

The record on appeal does not reflect that appellant has been sentenced in the trial court. Where no sentence has been pronounced in the trial court, this court is without jurisdiction to enter any order except to dismiss the appeal. Aguirre v. State, Tex.Cr.App., 271 S.W.2d 819.

The appeal is dismissed.


author: MORRISON, Judge. WOODLEY, Judge

text:
    Ex parte Lindy Q. MIXON.
    No. 38535.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1965.
    Rehearing Denied Dec. 15, 1965.
    Lindy Q. Mixon, pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

This is a habeas corpus proceeding wherein petitioner attacks the validity of a conviction for burglary of a private residence at night with two prior felony convictions alleged for enhancement. Petitioner’s case was finally affirmed by this Court on March 20, 1963, and is reported in Mixon v. State, 365 S.W.2d 364.

Petitioner relies in this writ upon Douglas and Meyes v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed. 2d 811. The Supreme Court of the United States in that case firmly established the rule that “where the merits of the one and only appeal an indigent has as of right are decided without the benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.”

The petitioner here was represented by counsel at trial, and notice of appeal was given August 13, 1962, with a pauper’s oath duly filed. On October 8, 1962, this Court was notified by the court appointed trial counsel that he did not intend to represent petitioner on appeal.

On December 31, 1962, this Court received a brief from petitioner, who was representing himself on appeal pro se, in which he alleged that he “had no attorney since my trial.”

The case was submitted on January 2, 1963, and we affirmed on January 9, 1963.

On January 12, 1963, the petitioner filed an affidavit for extension of time for filing his motion for rehearing, in which he stated that he wished to stress “that he is without an attorney and does not have access to legal information for filing his motion.”

The motion for rehearing was submitted on February 6, 1963, on which day the petitioner filed a brief asking that certain legal information be furnished him. The motion for rehearing was overruled on February 20, 1963.

Subsequently, on February 23, 1963, petitioner filed a sworn instrument with this Court in which he alleged that he “has and is of this petition being denied his right and advice of counsel or access to advice by means of law books,” and that “he is a pauper without counsel and funds and is entitled to advice of counsel in the protection or prosecution of his rights.” On March 13, 1963, the second motion for rehearing was submitted, and on March 20, 1963, the second motion for rehearing was overruled without written opinion.

The opinion in Douglas and Meyes, supra, was handed down by the Supreme Court of the United States on March 18, 1963, only two days prior to our decision on second motion for rehearing. The rule announced in Douglas and Meyes was the law of the land when petitioner’s second motion for rehearing was overruled, whether this Court was aware of it at that time or not. The Supreme Court enumerated as the requisites for Douglas and Meyes’ applicability the affirmative showing that petitioner requested, and was denied the assistance of counsel on appeal, even though it plainly appeared that he was an indigent.

We find these requisites to be present in the case before us.

This Court has given application to the rule announced in Douglas and Meyes in the case of Donaldson v. State, 372 S.W.2d 339.

There is no question of retrospective application of Douglas and Meyes v. People of State of California here. The recent Supreme Court of the United States case of Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, indicated that the question of retrospectivity arises only with respect to those cases which are final, that is where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for cer-tiorari had elapsed before the date of the Supreme Court’s opinion. Douglas and Meyes, supra, became the law prior to our final disposition of petitioner’s appeal.

For the reasons stated, the relief prayed for is granted and the order of this Court affirming petitioner’s conviction is set aside. Petitioner is ordered released from confinement in the State penitentiary and is ordered delivered to the Sheriff of Ector County where he will be incarcerated for a period of 90 days in order to afford the trial court an opportunity to appoint counsel to properly represent him on appeal to this Court from his original conviction. In the event that no such counsel has been appointed and has undertaken such appeal within such time, relator is ordered released from custody.

WOODLEY, Judge

(dissenting).

Petitioner has no appeal pending in this court. It was decided and mandate issued at a term of this court which adjourned more than two years ago.

If the Court of Criminal Appeals has authority to enter an order such as that provided for in the majority opinion and again decide whether the judgment of conviction should be affirmed or reversed, then the issuance of mandate and the adjournment of the term does not give finality to the disposition of appeals.

I respectfully dissent.


author: HUGHES, Justice.

text:
    CAPITOL AGGREGATES, INC., Appellant, v. GREAT AMERICAN INSURANCE COMPANY, Appellee.
    No. 11333.
    Court of Civil Appeals of Texas. Austin.
    Nov. 3, 1965.
    Rehearing Denied Dec. 1, 1965.
    Clark, Thomas, Harris, Denius & Winters, John Coates, Mary Joe Carroll, Austin, Groce, Hebdon, Fahey & Smith, Josh H. Groce, San Antonio, for appellant.
    Brown, Sparks & Erwin, Will G. Barber, Austin, for appellee.
   HUGHES, Justice.

The parties present this case upon an agreed statement. The controversy concerns the right of Great American Insurance Company, appellee and Workmen’s Compensation insurance carrier for employee, Costilla W. Franks, to recover from Mr. Franks and Capitol Aggregates, Inc., appellant and third party tortfeasor as to Mr. Franks, the amount paid Mr. Franks by Capitol Aggregates in settlement of his claim against it for damages which he might be entitled to recover in excess of the amount paid him as Workmen’s Compensation by appellee under the following circumstances:

On October 6, 1962, while working within the course of his employment as an employee of W. R. Morgan Co., Mr. Franks sustained an accidental injury.

With respect to that injury, Mr. Franks filed a workmen’s compensation benefits claim and suit against Great American, and, following a jury trial in June of 1964, a final judgment for $12,146.65 workmen’s compensation benefits was rendered in his favor against Great American.

Thereafter, Great American instituted and maintained this suit to enforce, in Mr. Franks’ name and for their joint use and benefit, the liability of defendant Capitol Aggregates with respect to the October 6, 1962 accident.

In the trial court, the law firm of Brown, Sparks & Erwin represented Great American’s interests and developed the case for trial, and Mr. Jack Garey represented Mr. Franks, individually, and actively participated therein until the settlement hereinafter described was made between Mr. Franks and Capitol Aggregates.

On the morning the case went to trial and prior to the selection of a jury, Mr. Franks and Capitol Aggregates entered into a settlement and indemnity agreement, thereupon announced in open court and subsequently reduced to writing, which provided in part that:

“In consideration of $3,500.00 cash in hand paid to Costilla W. Franks by Capital Aggregates, Inc., Costilla W. Franks does hereby compromise and settle any and all claims he has against Capitol Aggregates, Inc. * * * for injuries and any type of related damages growing out of an accident which occurred on October 4, 1962, * * * but it is expressly understood that the claim or cause of action asserted by Great American Insurance Company growing out of their subrogation rights under Article 8307, Section 6a of Texas Revised Civil Statutes is not in any way settled or prejudiced by this settlement agreement and it is further understood that Capitol Aggregates, Inc., by entering into this settlement agreement, hereby commits itself to a liability of $3,500.00 to Great American Insurance Company, same being a sum equal to that whieh it has paid Costilla W. Franks individually to settle all claims he has as a result of the accident in question and it is further understood that the right of Great American Insurance Company to prosecute its cau-se of action under Article 8307, Section 6a, Texas Revised Civil Statutes, is reserved to it and in no way prejudiced by this settlement agreement and if the liability of Capitol Aggregates, Inc. to Great American Insurance Company is adjudged through legal proceeding to exceed $3,500.00, then and in that event, Capitol Aggregates, Inc. will be liable to Great American Insurance Company for such sum exceeding $3,500.00 as so adjudged up to the subrogation interest of Great American Insurance Company, said $3,500.00 to be credited against the sum adjudged in said legal proceeding.
It is further understood that since Capitol Aggregates, Inc. acknowledges the right of Great American Insurance Company to receive from Capitol Aggregates, Inc. the sum of $3,500.00 regardless of the results of any trial of this case, Capitol Aggregates, Inc. hereby agrees to indemnify and defend Costilla W. Franks and his attorney, Jack Garey, for any claims by Great American Insurance Company to the $3,500.00 paid Costilla W. Franks by Capitol Aggregates, Inc. under this release. * * * ”

At the time such settlement and indemnity agreement was made, both Mr. Franks and Capitol Aggregates had full knowledge of Great American’s subrogation rights.

Such settlement and indemnity agreement was made between Mr. Franks and Capitol Aggregates without the consent, participation, approval, or acquiescence of Great American, who acquired knowledge thereof at the time it was announced in open court.

After the announcement of such settlement and indemnity agreement, Great American proceeded in Franks’ name and for its own use and benefit, to trial against Capitol Aggregates with respect to the October 6,1962 accident, and the jury returned a plaintiff’s verdict against Capitol Aggregates for $6,547.25 damages.

After the verdict was returned and before judgment was entered, Great American duly and timely asserted by appropriate pleading, motion, and stipulations its sub-rogation rights against both Mr. Franks and Capitol Aggregates with respect to the $3,500.00 settlement proceeds in question.

Following a full hearing, the trial court entered judgment that:

(a) Great American recover $6,547.25 from Capitol Aggregates upon the jury verdict;

(b) Great American recover $3,500.00 from Mr. Franks by reason of Great American’s subrogation rights with respect to the settlement in question;

(c) Mr. Franks recover $3,500.00 over from Capitol Aggregates by reason only of the above described indemnity agreement between them; and,

(d) Great American be denied recovery of $3,500.00 from Capitol Aggregates by reason of its subrogation rights with respect to the settlement in question.

While this suit has its basis in the principles of subrogation incorporated in Sec. 6a of Art. 8307, Vernon’s Texas Civil Statutes, we do not copy its provisions because they are not controversial either in meaning or application, nor do they include any authorization for or limitation on the right of an employee to compromise and settle his claim against a tortfeasor. The law on these matters is all court made although, as stated, legislative policy is gleaned from Sec. 6a, supra.

We believe that the judgment of the trial court is correct and that we must sustain it under the authority of Pan American Insurance Company v. Hi-Plains Haulers, Inc., 163 Tex. 1, 350 S.W.2d 644. In that case the workmen’s compensation insurance carrier paid the injured employee $3,500.00 in settlement of his claim. Such employee then sued a third party tortfeasor and the insurance carrier intervened. The employee settled his part of the suit for $1750.-00. The insurance carrier refused to accept a similar amount from the tortfeasor and the trial proceeded and a judgment for $1500.00 was obtained. The Court held that the insurance carrier was entitled to recover from the tortfeasor the sum of $1750.00, the settlement amount. We quote from the Court’s opinion:

“It is now the law in this state that the third party’s negligence need not be judicially established before the compensation carrier is entitled to assert its claim for subrogation and where the employee and the third party entered into a settlement, both employee and the third party were liable to the carrier for the amount so paid up to the amount of compensation paid by the carrier to the employee. Traders & General Insurance Co. v. West Texas Utilities Co., supra [140 Tex. 57, 165 S.W.2d 713], Likewise it was held in Fort Worth Lloyds v. Haygood, supra [151 Tex. 149, 246 S.W.2d [865] 869], that the first money ‘paid or recovered by the employee, or his representatives, belongs to the compensation carrier paying the compensation, and until it is paid in full, the employee, or his representatives, have no rights to any funds; * *
Under the law thus announced we are of the opinion and so hold that Pan American is entitled to a judgment against Hi-Plains for the sum of $1,750 which was the first money paid in this ease. The contention made by Hi-Plains, however, is that this amount was tendered and refused and Pan American elected to proceed with its suit and therefore was entitled to recover only the sum of $1,500 and no more, being the amount fixed as damages.
We have found no case squarely in point but we are of the opinion that Pan American was entitled to collect the $1,750 without being required to release Hi-Plains from any further demands. Pan American had the right to proceed to trial and have submitted to the jury the amount of damages. If the amount so found was equal to or in excess of the compensation so paid then Pan American would have been entitled to collect from Hi-Plains in full. In this case, however, the jury found that the damages were only $1,500, less than the amount paid by Hi-Plains in settlement.
The limit of Hi-Plains’ liability, had there been no settlement, was the amount of damages occasioned by its negligence and no more. On the face of things Hi-Plains made a rather unfavorable settlement, but it is not to be punished or penalized for that by having to suffer what would in effect be a double recovery or to have its liability increased by more than the sum it paid in settlement. * * *
We therefore hold that Pan American is entitled to a judgment against Hi-Plains Haulers, Inc. for the sum of $1,750 and no more.”

Insofar as the refusal of the trial court to render judgment against Capitol Aggregates for the $3,500.00 paid by it to Franks is concerned, appellee concedes that the opinion in Hi-Plains is conclusive against it. This is true because the Court there held that a tortfeasor could not be held liable for both the amount paid in settlement and the amount of the judgment, recovery there being allowed for the greater sum paid by way of settlement.

The liability of Mr. Franks for the $3,500.00 paid him by Capitol Aggregates in settlement of his claim for any excess damages above the sum required to reimburse Great American for what it had paid Franks is clearly established under the holding of the Supreme Court in Fort Worth Lloyds v. Haygood, supra, quoted in Hi-Plains and which we have copied.

This $3,500.00 belonged to Great American when paid to Franks and it still belongs to Great American because Great American has not been paid in full the amount paid in compensation to Franks.

The judgment here is consistent with all adjudicated cases considering the right and incidents of subrogation as provided in Sec. 6a. It holds Franks liable for settlement money received by him it appearing that his insurance carrier had not made full recoupment. It exonerates the third party tortfeasor from double liability to the insurance carrier, holding that it is liable only for the amount of the jury verdict and not also liable for the lesser amount paid in settlement, the jury verdict being the greater.

It is true that Franks recovered judgment over and against Capitol Aggregates for the $3,500.00 recovered by Great American against Franks. This is because, and only because, Capitol Aggregates agreed to indemnify Franks against such recovery. This was the own doing of Capitol Aggregates, and it makes no complaint in this regard.

No error appearing, the judgment of the trial court is affirmed.

Affirmed.

ARCHER, C. J., not participating.

      . Capitol Aggregates is the only appellant. However, it was agreed that, “In view of the indemnity agreement between Franks and Capitol Aggregates, Great American has agreed that Capitol Aggregates itself may urge in this appeal any contention that Mr. Franks himself could urge. However, as to such contentions Capitol Aggregates merely stands in Mr. Franks’ stead and voices herein his individual position.”

      . This question is before us under a cross-point made by appellee.


author: MASSEY, Chief Justice.

text:
    Allen E. INGRAM, Appellant, v. TEXAS INDUSTRIES, INC., Appellee.
    No. 16675.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 22, 1965.
    Rehearing Denied Dec. 3, 1965.
    Parkhill, Watson & Grantham, Grand Prairie, Harris, Anderson, Henley, Shields & Rhodes, and L. W. Anderson, Dallas, for appellant.
    Simon, Crowley, Wright, Ratliff & Miller, Fort Worth, for intervenor Texas Employer’s Ins. Assn.
    Strasburger, Price, Kelton, Miller & Martin, and Royal H. Brin, Jr., and Gordon Macdowell, Dallas, for appellee.
   MASSEY, Chief Justice.

This is a suit for damages for personal injuries to Allen E. Ingram against Texas Industries, Inc. The latter operated a “cement mixer” truck of the type on which the “mixer” turned more or less continuously. Therefrom ready-mixed concrete was distributed and deposited by a movable chute when fresh concrete was being poured. Ingram was standing by the truck in a position lying inside the arc in which the chute swung — when it did swing around and strike him. The truck was unattended and standing in a position where the side thereof, toward which the chute swung, was on ground lower than that on the opposite side.

For our purposes there is no question but that Texas Industries, Inc. was guilty of negligence amounting to a proximate cause of Ingram’s injuries in that its employee negligently left the truck unattended and without having anchored or fastened the chute into position so that it would not swing around. However, the jury found that Ingram failed to keep a proper lookout for his own safety prior to the occurrence and negligently stood too close to the truck. Each was found to have amounted to a proximate cause of the occurrence and the resulting injuries.

Based thereupon the trial court entered a take nothing judgment. Ingram appealed on the theory that there was no evidence to support these jury findings.

The jury is not only the judge of the facts and circumstances proved but may draw reasonable inferences and deductions from the evidence adduced before it. Therefore its findings may not be disregarded, under the provisions of Texas Rules of Civil Procedure, rule 301, “Judgments”, if the record discloses any evidence of probative value which, with inferences that may be properly drawn therefrom, will reasonably support the same. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, 276 (1958).

When a situation suggests investigation and inspection in order that its dangers may fully be disclosed, one is under the obligation of investigating and inspecting. He is bound to look and listen, where such precautions are reasonably required to prevent injury to himself. See 38 Am.Jur. 868, “Negligence”, § 191, “Exercise of Senses and Intelligence”.

In order for Ingram to prevail on this appeal we must say, as a matter of law, that when he voluntarily placed himself at the position where he was when the chute subsequently swung around and struck him there was nothing in the situation which suggested investigation and inspection in the ascertainment of whether there was any hazard incident to his action. This we cannot do. There was evidence from a coemployee to the effect that it was not unexpected or surprising that the chute would swing as it did under attending circumstances. Ingram’s testimony was to the effect that he saw nothing in the situation which created any cause for concern on his part and that he assumed and had the right to assume that his position was a safe one. The evidence upon the physical facts, probable or possible results, and the proclivity of a pendulum to swing downward or around and downward (coupled with the human experience and general knowledge and intelligence of the jury), made Ingram’s contributory negligence a question of fact. Under the evidence and inferences to be drawn therefrom such was a matter for the jury’s determination. Therefore we are bound by its findings.

The essential question is as to the “foreseeability” on the part of Ingram. Insisting that there was none he relies strongly on the author’s opinion in Hadaway v. Lone Star Gas Company, Tex.Civ.App., 355 S.W.2d 590 (Fort Worth Civ.App., 1962, mandamus overruled). In that case it was held that the plaintiff had a legal right to assume that a public way was reasonably safe for ordinary travel, and we furthermore held, under the peculiar circumstances, that because the truly dangerous condition which existed was neither seeable or foreseeable there was no evidence upon which the jury’s finding of contributory negligence was founded. A kindred right of assumption is not to be found in the circumstances of the instant case.

Judgment is affirmed.


author: DAVIS, Justice.

text:
    TRAVELERS INSURANCE COMPANY, Appellant, v. Virgil Albert BROWN, Appellee.
    No. 7676.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 9, 1965.
    Rehearing Denied Nov. 30, 1965.
    Howard Waldrop, Atchley, Russell, Hutchinson & Waldrop, Texarkana, for appellant.
    B. D. Moye, Old & Moye, Mt. Pleasant, for appellee.
   DAVIS, Justice.

A voluntary Workmen’s Compensation suit. Plaintiff-appellee, Virgil Albert Brown, sued defendant-appellant, Travelers Insurance Company, for voluntary workmen’s compensation benefits as provided for in a policy of insurance that was issued by appellant to Ranch Management, Inc., containing voluntary workmen’s compensation benefits as follows:

“1. Insuring Agreement I of the policy is amended by adding thereto an additional coverage as follows:
Coverage C — Voluntary Compensation. To pay on behalf of the insured, if any employee within a group of employees hereinafter described shall sustain injury, including death resulting therefrom, while employed by the insured in operations in a state specified opposite the description of such group of employees, under circumstances which would have rendered the insured liable for compensation if the injured employee and the insured had been subject to the workmen’s compensation law hereinafter designated with respect to such employment, an amount equal to the compensation and other benefits which would have been payable under such law had the injured employee and the insured been subject to such law with respect to such employment.”

The case was tried before a jury and judgment was entered on the jury verdict for the appellee for the sum of $3,679.00. Appellant’s amended motion for new trial was overruled. Appellant has perfected its appeal and brings forward only one point of error.

Appellant contends the trial court erred in holding that there was coverage of ap-pellee under the voluntary Workmen’s Compensation insurance policy which was made the basis of appellee’s cause of action for the reason that the undisputed proof in the trial court shows that appellee was precluded and barred from recovery under said voluntary workmen’s compensation insurance policy by filing a common law action against the assured under the voluntary workmen’s compensation policy prior to instituting action on the voluntary workmen’s compensation policy.

There is no statement of facts on file that would tend to show that the “undisputed proof” showed in the trial court. In the event the policy of insurance was offered in evidence, the policy contains the following provisions :

“If any person entitled to payment under coverage C shall refuse to accept such payment and to comply with the terms and conditions set forth above or if any person shall commence any proceedings at law, in equity or in admiralty, except, for such payment, seeking damages from the insured or the company on account of such injury, the company’s liability under Coverage C with respect to such injury is thereupon terminated.” (Emphasis added).

Ranch Management, Inc., was engaged solely in agricultural pursuits and appellee did commence a suit against his employer. Appellant states in its brief that appellee was “without any knowledge of the terms and conditions of said policy.” After learning of the conditions of the policy he filed suit against the appellant and took a non-suit in his common law action against Ranch Management, Inc.

It seems that appellee had 2 available remedies. One was a provision for a common law action against the employer. The second was a suit for the compensation benefits under the voluntary workmen’s compensation policy. Since the appellee did not know of the right to sue under the policy until after he had already filed his common law action, it seems that he could elect to pursue either remedy. After he had gained the knowledge of the contents of the voluntary workmen’s compensation policy he was allowed to pursue that remedy. Leonard v. Hare, (1960) 161 Tex. 28, 336 S.W.2d 619, and authorities cited therein. The mere institution of a common law action suit that is not prosecuted to judgment does not constitute an election of remedies. McHaney v. Hackleman (Tex.Civ.App.1961), 347 S.W.2d 822, W.R., N.R.E. The common law action was not pursued to judgment and the appellee did not receive any benefits therefrom. The point is overruled.

The judgment of the trial court is affirmed.