author: WOODLEY, Presiding Judge. MORRISON, Judge, (concurring).

text:
    J. J. JOHNSTON, Appellant, v. The STATE of Texas, Appellee.
    No. 40355.
    Court of Criminal Appeals of Texas.
    June 28, 1967.
    Rehearing Denied Oct. 4, 1967.

      Cox & Hurt, by Joe L. Cox, Plainview, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is sodomy; the punishment, 12 years.

The indictment alleged that on or about the Sth day of February, 1966, appellant used his mouth on the sexual parts of one Graham for the purpose of having carnal copulation.

The state’s evidence reflects that appellant committed the act as charged in his apartment, in Plainview, upon Graham, a 16 year old boy, in the presence of 16 year old Easley and 17 year old Caddell.

At the time of the offense charged appellant, age 36, was Guidance Counselor in Plainview High School, he having begun such employment the first week in August 1965. Graham and the witnesses Easley and Caddell were among the high school students he counseled.

Graham’s version of his involvement with appellant in homosexual acts was that it began about December 1, 1965, when appellant talked to him “about outside life, girls, sex and stuff like that.” This was followed by a visit of Graham and one Bowley at the NuGriddle Cafe followed by a ride upon invitation of appellant and, after Bowley was taken home, Graham’s first visit to appellant’s apartment.

Graham testified that appellant “assured me that he wasn’t a queer” and talked about hypnotizing him with a vibrator.

Two or three days later Graham again-visited appellant at his apartment at his invitation, and appellant again said he could hypnotize him and it would help him. On this occasion appellant used the vibrator on Graham for some time and then started putting his hands on Graham’s private parts —then pulled Graham’s clothes off and “used his mouth” on Graham’s penis.

Other acts of oral sodomy committed by appellant upon Graham prior to the return of the indictment and before and after the act of February 5, 1966, were shown by the testimony of Graham, Caddell and Easley, as were acts of sodomy committed upon Caddell.

The first ground for reversal presented by appellant’s brief relates to the overruling of his motion that he be allowed to reopen testimony “for the purpose of proving by evidence and testimony that the witness Bowley has made statements to witnesses inconsistent with and contradictory to the testimony that he gave at the trial of the case * *

Bowley was called by the state in rebuttal. He testified that on April 1, 1966, he and Eddie Zingerman spent the night in appellant’s apartment and that he slept with appellant and that appellant told him that Graham had been over there on several occasions and that he and Graham had had homosexual relationships.

The formal bill of exception does not set out the testimony of the witness sought to be impeached or what appellant proposed to offer as inconsistent or contradictory.

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

Appellant’s next grounds of error relate to the failure of the court to instruct the jury, in connection with his instruction concerning accomplice testimony, that one accomplice cannot corroborate another.

The court charged the jury that Graham was an accomplice witness and properly instructed the jury as to the necessity that his testimony be corroborated.

The objection to the charge complaining of the failure of the trial court to instruct the jury that one accomplice witness cannot corroborate the testimony of another is predicated upon the contention that the state’s witnesses Easley and Caddell were accomplice witnesses as a matter of law or, in the alternative, there was a question of fact as to whether or not they were accomplice witnesses.

Neither Caddell nor Easley is shown to have participated in the act of sodomy by appellant on Graham which they witnessed. Neither is shown to have been a principal, accomplice or accessory.

If a state’s witness has no complicity in the offense for which the accused is on trial, his testimony is not that of an accomplice, whatever may have been his complicity with the accused in the commission of other offenses. Washburn v. State, 167 Tex.Cr.R. 125, 318 S.W.2d 627, and cases cited; McClanahan v. State, Tex.Cr.App., 394 S.W.2d 499.

Our holding that Easley and Caddell were not under the record accomplice witnesses disposes of appellant’s ground of error No. 3 which complains of the overruling of his objection to the charge for failure to instruct the jury that these witnesses were accomplices or to submit to the jury as a question of fact whether or not they were accomplices.

Appellant’s ground of error No. 4 relates to his objection No. VIII to the court’s charge as a whole because it did not limit the testimony by Graham as to other acts of oral sodomy upon himself by appellant “to a showing, if it does, of unnatural attention toward such witness, if it does, but allows the jury to consider such testimony without restriction and without limitation as to the purpose for which the said testimony was admitted by the court.”

The trial court did not err in failing to so limit the testimony as to other acts of sodomy committed by appellant on Graham. The evidence as to such acts was also admissible as evidencing the probability of the act shown by the testimony of Graham corroborated by the testimony of the witnesses Easley and Caddell.

Appellant’s fifth ground of error relates to his objection IX to the court’s charge “for the reason that said charge does not limit the jury’s consideration of questions propounded to the defendant’s character witnesses by the district attorney of the nature of ‘Have you heard of acts of misconduct by this defendant?’ to test such witness’ knowledge of the defendant’s reputation, and by a failure to limit such testimony and consideration by the jury the court fails to sufficiently safeguard the rights of this defendant.”

The objection did not point out the questions asked; the name of the witness or the answer which appellant sought to have limited as testimony as to extraneous acts of misconduct.

The overruling of this objection to the court’s charge does not reflect reversible error.

Ground of error No. 6 relates to appellant’s objection XI to the court’s charge on the ground that the charge as a whole did not limit the jury’s consideration of State’s Exhibit No. 1 (a letter by Aylesworth to appellant) to impeachment purposes only, but allowed the jury to consider the letter “as determining the guilt of this defendant or that he is a criminal generally.”

Aylesworth was another teen-age boy who had been counseled by appellant. Graham, in his testimony, had referred to Ayles-worth as having gone with him to appellant’s apartment late in January when appellant attempted to kiss him (Graham) on the stomach to hypnotize him, after which the three went to the Pancake House and appel-lent bought their supper. Graham mentioned in his testimony that Aylesworth had gone to Mexico with him during Christmas week and later they went to Amarillo where they visited appellant and he took them to a drivein theater and to a bowling alley and bought them some rum and vodka which they drank. Graham also testified that appellant rode back to Plainview with them and “played around” with Aylesworth on the way. He also referred to appellant’s having written to Aylesworth and Aylesworth to appellant in March 1966.

On his direct examination as a witness in his own behalf, appellant testified that he received a letter from Aylesworth who had left school and gone to Belen, New Mexico—

“He wrote me a letter and told me he was doing real well over there and playing basketball and on T.V. and this sort of thing and was doing real well.”

Appellant further testified that the next time he heard, Aylesworth was in jail, charged with burglary.

When cross-examined as to Graham’s testimony regarding the incident following which he bought Graham’s and Ayles-worth’s supper, appellant answered that he heard Graham’s statement “and I believe if you will check the records you will find that Aylesworth was in jail in New Mexico at the time.” Asked if he did not “proposition” Aylesworth in January when he bought the boys’ supper at the Pancake House, his answer was: “I did not buy their supper.”

Referring to his good relationship with Aylesworth, appellant further testified on cross-examination: “I thought Aylesworth thought a lot of me, but he refused to abide by the school rules and promise to stay in school, so his mother sent him to Belen, New Mexico to live with an uncle.”

“Q. Well, I was just stating that you told me a minute ago that he wrote you a letter from New Mexico.
A. From New Mexico, he did write one letter.
Q. And that one letter that he wrote you, I take it that if he hadn’t thought something about you or thought you were a pretty good counselor, maybe he wouldn’t have written to you.
A. Do you want me to answer that ?
THE COURT: If you can answer it.
A. I got a letter from him, and he told me that he was very happy in the school there and was a good school and he was playing basketball and he was even on TV — basketball was broadcast on TV, and that he thought he was straightening out his life and was going to pass, for a change.
Q. I guess he wrote this letter from the standpoint that he wanted you to know what he was doing and wasn’t that he thought that much of you as a counselor.
A. I believe he asked — probably so. I don’t remember exactly the letter. And that his records be forwarded.
Q. • What all did he say in the letter ?
A. I couldn’t tell you for sure, other than what I have said, sir.
Q. You said that he wrote you and told you that he was out there now and he was straightening out and he was doing—
A. He had been failing every subject at Plainview High School, and he said he was — at last, he was passing. He also had a little letter enclosed in the letter to give to a student named Pressey Sanchez.
Q. All I am trying to say is, he must have thought you were a pretty good friend, or he wouldn’t have been writing to you.
A. I wouldn’t know, sir. I guess that he did.
Q. Wasn’t any type of thing to think at the time he wrote this letter to you that he was trying to frame you or anything like that, was there?
A. No, sir, I don’t think he was framing me.
Q. When did he write this letter to you?
A. Shortly after he left. It was after mid-semester, be January 27, somewhere along in there.
Q. Where did he write the letter from ?
A. I believe Belen, New Mexico, was the postmark. B-e-l-e-n. Thirty miles south of Albuquerque.
Q. The reason, I guess, to be writing a letter would be telling you that he had been out there and—
A. Mr. Thompson and Mr. Butler and his mother and I spent about two hours in Mr. Thompson’s office with him, and he sat there and cried a little bit that day, and he was concerned. In the letter, he thanked me for his interest — the interest I had taken in him, yes, sir.
Q. That was the type of letter it was?
A. Yes, sir.”

At this point State’s Exhibit No. 1 was marked for identification and exhibited to appellant who denied that it was the letter he had received; and said that “the statements that are in the middle of that letter were not in the letter that he wrote to me.”

Aylesworth appeared and testified as a rebuttal witness for the state. He corroborated the testimony of Graham as to appellant’s attempt to kiss Graham on the stomach to hypnotize him, and their visit to the Pancake House where appellant bought their supper, and testified that on such occasion appellant asked him to spend the night and have homosexual relations with him and he refused. State’s Exhibit No. 1 was identified by Aylesworth as the letter he wrote to appellant. It was. also identified by the landlady as the letter she found in the apartment which appellant had just vacated, and it was admitted in evidence.

The trial judge did not err in failing to limit the State’s Exhibit No. 1 to impeachment purposes only.

The letter, mailed February 14, 1966, is before us as State’s Exhibit No. 1 in original form. It reads:

“Dear Mr. Johnston, First I want to thank you for all you did for .me. You made me realize things. I don’t guess I’ll ever forget you. Not because of what you did out of school or who you were out of school. But because you are interested in people. You know I’m glad that you never did anything to me. Because after you did other boys, you wanted someone new. And I believe you didn’t want to do it but really wanted someone to love you. Take my advice and get women. I took yours. I’m still in school here in New Mexico, and I really love it. Got a new start * * * They televise all the games and it makes me feel proud to watch myself on television. My hair looks like a Beatle. It’s blonde and real long. I didn’t quit drinking but I guess no one can. Write me sometimes. To my favorite counselor. Warren.”
“P.S. I enclose a letter and wish you would give it to a friend please — Pressey Sanchez — he’s an 11th Grade — in Bixless’ 4, 5, 6 Period Class. Thanks.”

The letter written by Aylesworth was admissible not only to impeach the testimony of appellant but to corroborate the testimony of Graham and the other witnesses for the state, including Ayles-worth, and to rebut appellant’s defensive theories.

The remaining ground for reversal in appellant’s brief attempts to group twenty informal bills of exceptions and complains that over proper objection of appellant the court permitted the district attorney “to go into a number of extraneous offenses without regard to whom they occurred with.”

Art. 40.09 Vernon’s Ann.C.C.P. requires that the defendant’s brief “shall set forth separately each ground of error of which defendant desires to complain on appeal * * * »

While the matters complained of in these informal bills are not presented as required by Sec. 9 of Art. 40.09, and the rule is one of evidence and not of constitutional right, the admissibility of the evidence as to extraneous offenses without limitation by the court in his charge is the most serious question in this appeal.

“As a general rule, in criminal cases the accused can be convicted, if at all, only by evidence that shows that he is guilty of the offense charged. Consequently, evidence that he has committed other crimes that are remote and wholly disconnected from the offense with which he is charged is ordinarily inadmissible.”

23 Tex.Jur.2d 294, 295.

The rule against admitting evidence of other crimes by the accused is inapplicable if such evidence logically tends to show his guilt of the offense charged. In other words, relevant evidence that tends to prove that the accused committed the crime charged is not inadmissible simply because it may also reveal that he has committed other crimes.

Evidence of the commission of other crimes by the accused is admissible as exception to the general rule to show plan or system; to rebut some defensive theory and in cases such as sodomy, as evidencing the probability of the act charged and the unnatural attention toward the complaining witness, victim or accomplice.

Appellant’s testimony was to the effect that Graham and other boys had been engaging in homosexual activities with a man and that he counseled Graham not to go to the man’s house again. He offered evidence to the effect that the reputation of Graham was that he was a troublemaker at school and his reputation for truth and veracity was bad.

Appellant testified that the act charged in the indictment did not occur. He denied the hypnotism and vibration routine shown by the testimony of the boys. He testified that he was not in his apartment at the time the state’s testimony showed the offense was committed but was in Amarillo and he also raised as a defense that Graham had framed him and the boys were carrying out a threat to start rumors and accuse him of being “a homosexual,” * * * “a damned queer,” because he did not meet Graham’s demand that he give him $100. All of such testimony of appellant was rebutted by the testimony of the boys denying that threats were made or money was demanded.

The testimony as to prior and subsequent acts of sodomy and other homosexual acts between appellant and Graham and between appellant and Caddell were admissible under our holding in Smith v. State, 170 Tex.Cr.R. 518, 342 S.W.2d 445, under the last exception set out above.

Such testimony, as well as the testimony and letter of Aylesworth and the testimony of Easley and Bowley was also admissible to prove system and to rebut appellant’s defensive theory that he was the victim of a “frame-up,” carrying out threats not to expose him as a homosexual but to start false rumors and falsely charge him with homosexual acts.

The failure of the trial judge to make any limitation upon the jury’s consideration of the extraneous offenses shown by the state’s evidence must be assessed in light of the several exceptions under which such evidence was admissible, and of Art. 36.20 C.C.P. which provides that a judgment will not be reversed for error in the charge unless such error was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.

Apropos is the following comment by Judge Hawkins in Scott v. State, 95 Tex.Cr.R. 82, 252 S.W. 756, 757:

“It is contended by appellant that, if the testimony objected to was admissible, then the court should have limited it for the purpose for which it was admitted. Just how the court would have framed a charge suggested by appellant is difficult to conceive. The evidence was admissible, not upon one point, but upon many. It was usable for the purpose of rebutting the defense of alibi and as contradicting the witnesses who testified upon that issue; also to identify appellant and his companions, and as showing their association and conduct together during the night of the alleged robbery; also for the purpose of corroborating the prosecuting witnesses and showing the proximity of appellant and his companions to the scene of the robbery. For the court to have undertaken to limit this testimony, and at the same time to have prepared a charge not upon the weight of the evidence would have been a task which it appears counsel for appellant himself refrained from undertaking, as no special charge was requested upon this point.”

Under the record we cannot say that appellant did not have a fair and impartial trial before the court and the jury.

The judgment is affirmed.

MORRISON, Judge, (concurring).

I concur in the affirmance of this conviction, but do not agree to be bound by the gratuitous portion of my brother Woodley’s opinion in which he holds that a charge limiting the jury’s consideration of the extraneous offenses is not necessary.


source: Caselaw Access Project

author: BELL, Chief Justice.

license: Public Domain

text:
    Celina F. TREVINO et vir, Appellants, v. Leslie H. GRAVES, d/b/a Patrick & Graves et al., Appellees.
    No. 15092.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Sept. 7, 1967.
    Ragan & Russell, Morris, Termini, Harris, McCanne & Lacas, Houston, for appellants, John L. Russell, John G. Min-niece, Houston, of counsel.
    Seymour Lieberman, Houston, for appel-lees.
   BELL, Chief Justice.

Appellants, on February 17,1964, received a judgment in the 125th District Court against Leslie H. Graves, d/b/a Patrick & Graves, for $45,400.00 together with interest thereon at the rate of 6% per annum from the date of judgment. On appeal this Court affirmed the judgment.

On May 19, 1965, appellants filed their “Original Petition for Discovery of Assets”. On June 3, 1966, appellants filed what they denominate “Plaintiffs’ First Amended Original Petition for Discovery and Recovery of' Assets” against Leslie H. Graves, d/b/a Patrick & Graves and also d/b/a L. H. Graves, Custom Broker. Numerous other parties were also made parties on the theory that they had and were conspiring with Leslie H. Graves to secrete assets belonging to Graves. Too, it was asserted that some of them held property in their names that was transferred to them by Graves with intent to hinder, delay and defraud appellants in the collection of their judgment. Too, it was alleged that some property while held in the name of other defendants actually belonged to Graves. Further it was alleged that execution was issued under the judgment but was returned “nulla bona”. Allegation was made that an abstract of the judgment had been filed in June, 1964 in Harris and Cameron Counties.

Appelalnts alleged that they believed that the property consisted of cash, stocks, real estate and other assets and the appellees should be ordered to answer and disclose what they knew of all such property.

Appellants alleged the appointment of a receiver was an appropriate remedy to take possession of all of Graves’ property and that the powers of the courts of equity be exercised to protect Graves’ property, and to subject it to the rights of appellants. Also appellants alleged all parties should be enjoined from collecting moneys, receiving moneys, transferring real estate or any assets belonging to Graves.

This is the specific prayer made by appellants :

“Whereupon, plaintiffs pray that this petition be set down for hearing at some early date in the discretion of the Court and that citation be issued to the defendants directing and commanding them to appear and answer herein at such hearing, and that upon such hearing defendants be ordered and required by the Court to appear in open court at the conclusion of said hearing and answer orally under oath such questions as may be propounded to them by plaintiffs, or their attorneys; and furthermore, that subpoenas be issued to the defendants directing and commanding them to appear in court, and to bring with them at the time of said hearing such records, books of account, and other memorandum as to enable them to answer any and all questions concerning amounts owing Leslie H. Graves, and concerning the assets of Leslie H. Graves, either held in his name or in the name of any of the other defendants, or other third persons, and such funds owing to Leslie H. Graves by other persons and firms, and that a receiver be appointed by the Court to take charge of any and all assets subject to execution or garnishment, and that all the defendants be enjoined from disposing of, transferring, hiding, or withholding such assets from the receiver and your plaintiffs, and that defendants be required and ordered to disclose all such assets, and ordering that such assets shall be disclosed by such answers of the defendant, and that said receiver be authorized to collect any and all amounts owing defendant by other persons and firms, and any and all assets of the defendant, Leslie H. Graves, to the extent of the amount owing plaintiffs on the aforementioned judgment, and that notice be given all persons and firms owing defendant, Leslie H. Graves, or having assets in their possession, or title to such assets, either personal property or real property of the defendant, to the effect that amounts now payable, and assets now due the defendant, shall be payable to the receiver appointed herein, and that any and all such assets be applied to the satisfaction of plaintiffs’ judgment, including all cash, stocks, real property, jewelry, personal property, real estate, and other things of value, and plaintiffs pray for the issuance from time to time of any and all further orders in the premises as to the Court may seem appropriate, and for costs of suit in this behalf expended.”

Pursuant to the prayer, citations were issued and thereafter commencing December 13, 1966, five of the defendants, to wit: Leslie H. Graves, Ernest Garrett, Gary Graces, Gene Greathouse and Jacob Manuel Fuentes, were called by the appellants’ counsel and examined extensively concerning their knowledge of real estate, corporate stocks, cash, accounts receivable and other property belonging to Graves.

The parties then rested, the appellants not requesting the call of any other parties defendant, counsel for defendants called none of them.

The answers of the parties disclosed various accounts receivable allegedly owed as of December 15, 1966, to Patrick & Graves, Houston, Texas, and L. H. Graves, Custom House Broker, Brownsville, Texas. The names and addresses of these debtors, as well as the amount owed by each were shown. The evidence showed that accounts receivable would of course probably change from day to day.

The answers also disclose that Graves at one time owned all of the stock (248 shares) in the Dixie Forwarding Co., Inc., but allegedly this was now owned by some of the other defendants, that is, Gary Graves and Fuentes.

The answers also disclose an alleged transfer by Graves to his son-in-law and daughter of a house and lot in Houston and of a house and lot in Brownsville to Graves’ wife.

Appellants made a motion for judgment, after discovery of assets had thus allegedly been made, which was overruled by the Court. The motion asked that a judgment be entered requiring Graves and the defendants to, immediately following its entry, make disclosure to the Court and to appellants. It also asked that Graves be ordered to periodically make available to appellants all records of assets, real estate, and accounts receivable. The motion further sought a cancellation of the transfer of the shares of stock and the houses and lots standing in the names of his wife or son-in-law.

Also an injunction against the transfer of any property was sought.

The trial court rendered judgment that appellants were entitled to discovery and that discovery by examination fully and completely having been made under oath, the defendants were dismissed, and all other relief prayed for was denied. Costs were assessed against appellants.

Appellants assign 29 points of error, but what we say will effectively dispose of all of them though we do not notice them specifically.

This is really nothing more than a proceeding under Rule 737, Texas Rules of Civil Procedure, after a money judgment in appellants’ favor, to discover assets belonging to Leslie H. Graves, the defendant in such judgment, so that through available writs appellants may reach such assets in satisfaction of the judgment. Such a proceeding is available under the rule. White v. National Paving Co., 101 S.W.2d 588 (Tex.Civ.App.), n. w. h.; National Compress Co. v. Hamlin, 114 Tex. 375, 269 S.W. 1024. When the cited cases were written Article 2002 authorized proceeding by written interrogatories. Rule 737 expressly authorizes the defendant to be summoned before the court for oral examination as in ordinary trials. The object of such a proceeding is discovery. We do not mean to hold, as such is unnecessary in the light of the record, that additional relief would under no circumstances be available if properly sought.

Here discovery as contemplated by the rule, the pleading and the prayer, was ordered and obtained.

Appellants prayed for a receiver and asked that all property discovered belonging to defendant be delivered to the receiver and all accounts be paid to the receiver and all such assets be applied by the receiver to appellants’ judgment.

Appellants were not entitled to a receiver because they nowhere pleaded they had any specific lien on any of the property. Carter v. Hightower, 79 Tex. 135, 15 S.W. 223; Pelton v. First National Bank of Angleton, 400 S.W.2d 398 (Tex.Civ.App.), n. w. h.

Neither were appellants entitled to a judgment cancelling and setting aside the conveyances of Graves of the real estate to his wife and son-in-law. There was no specific prayer that any conveyances or transfers of property he set aside, nor was there a general prayer for relief. See Board of Firemen’s Relief and Retirement Fund Trustees of Harris County v. Stevens, 372 S.W.2d S72 (Tex.Civ.App.), n. w. h.

The shares of stock in the Dixie Forwarding Co., Inc., are the subject of garnishment pending in another court and for this additional reason there was no error in refusing to set aside the transfers. Too, in the other suit the parties were enjoined from transferring the stock.

The court did not err in refusing to make available at 30-day intervals to the court and appellants records of assets, real estate and accounts receivable acquired in the future. There was no pleading or prayer for such. It was merely sought in appellants’ motion for judgment.

Affirmed.


author: WILSON, Justice.

text:
    OTIS ELEVATOR COMPANY, Appellant, v. Lou Mae WOOD et vir, Appellees.
    No. 4637.
    Court of Civil Appeals of Texas. Waco.
    Aug. 31, 1967.
    Rehearing Denied Sept. 21, 1967.
    Bailey, Williams, Weber & Allums, James A. Williatms, Dallas, for appellant.
    Dunnam, Dunnam & Dunnam, Richey, Sheehy, Teeling & Cureton, J. Robert Sheehy, Waco, for appellees.
   OPINION

WILSON, Justice.

Plaintiff was injured by an escalator in the department store of R. E. Cox Company. She sued Otis Elevator Company as designer and manufacturer of the escalator, R. E. Cox Company, and the contractor through which appellant installed the equipment. A covenant not to sue Cox and the contractor having been executed, plaintiff took a non-suit as to them. The cross-action of Otis against Cox and the contractor resulted in judgment for the latter defendants under the jury verdict by which they were absolved of liability, and Otis was found responsible. Judgment for plaintiff was rendered against Otis on the verdict. We affirm.

Appellant assigns 50 points of error. The first group attacks the admission in evidence of hospital records under Art. 3737e, Vernon’s Ann.Civ.Stats., the Texas Business Records Act.

Plaintiff pleaded that prior to the accident she was suffering from high blood pressure and diabetes which were controlled by medicine; that the emotional stress and trauma attending the accident aggravated these conditions “and the cutting off of oxygen to a part of her heart with a resulting dying of a part of her heart muscle.”

The hospital record, exhibit 14, was objected to because it was not properly proved in accordance with statutory requirements, and no predicate had been laid; and because it contained medical opinions and evaluations “about which there could be disagreements among experts in the medical profession as to interpretation, diagnosis and evaluation.” These objections were overruled.

The exhibit was a consultation report in which Dr. Ross, the examining physician, stated he was not certain after examining x-rays and electrocardiograms whether marked myocardial damage found in plaintiff was old or recent, and the “age of this infarct is undetermined.”

It is not necessary for us to pass on defendant’s argument that this exhibit was inadmissible under the decision in Loper v. Andrews (Tex.Sup.1966), 404 S.W.2d 300, for, in our opinion, even if its admission was error, the error is harmless. The restricted effect of the doctor’s opinion concerning the infarct was that maybe it was, and maybe it was not related to her present symptoms.

The significance of exhibit 14, however, is its relation to the next series of points, which complain of other medical evidence. Dr. Fadal, called as plaintiff’s witness, had examined and treated her. She had given a history of high blood pressure and diabetes, which were controlled.

As a basis for a hypothetical question Dr. Fadal was asked to assume that the running rail of the escalator had pulled and jerked the 61-year-old plaintiff forward through “a hole” or open space adjacent to the rail when she attempted to rescue a child who was screaming on the escalator; that her body was left hanging toward a 30-40 foot drop; that her legs and knees were bruised; that she was pale, nauseated and nervous, and her skin “felt clammy”; and that she had chest pain. He was asked to further assume that “a year and nine months later the findings were found in the Hillcrest Hospital as set forth in exhibit 14,” and to assume “as facts what is shown on the report of Hillcrest Hospital of the cardiogram.”

The question was: “In your opinion could the experience of this 61-year old lady with diabetes and hypertension and the pain and bruising of her body and the exertion of running to that escalator at her age and her physical condition and being hurled through it in the manner I have described, in your opinion, could that have caused the scarring of her heart with the myocardial infarct, and at that time ?”

Appellant objected that the opinion sought to be elicited was not based on reasonable medical probability. Appellee argued that “it’s merely whether it could have” as to “whether something in the past caused this condition.” The trial court ruled, in effect, that the question should be based “on reasonable probability”, and overruled the objection. Then: “Q. In your opinion could that have caused the scarring of that lady’s heart by a myocardial infarct at that time or shortly thereafter, as a result of it?” The witness replied that the electrocardiographic evidence had surprised Dr. Ross because it was incompatible with her lack of symptoms; that it was compatible “with the residuals of her previous myocardial infarction,” which meant, that the change in the electrocardiogram “must have occurred sometime ⅛ the past. They were old changes. They were not acute or new changes.”

It is obvious that to this point the answer of the witness is favorable to defendant. The effect of the opinion the doctor has expressed is that the condition shown in the electrocardiogram does not demonstrate a causal relationship to the accident. It is clear and unequivocal. Dr. Fadal then added: “There are myocardial infarctions or heart attacks that are called ‘silent’ that are not as full blown as the classical type that people are used to seeing, and the situation you describe; certainly, it could have been a possible cause of that.”

In reviewing the case under these facts we are not required to decide whether this evidence is characterized as not resting in reasonable probability, or whether it is inadmissible under rules announced by the decision in Insurance Company of North America v. Myers (Tex.Sup.1966), 411 S.W. 2d 710; or whether that case impliedly overruled prior intermediate court decisions which distinguished between medical opinions relating to conditions already in existence and future conditions.

Dr. Fadal’s testimony does not require the construction, as appellant insists, that in his opinion plaintiff’s infarct could have resulted from the accident. We think his testimony is more logically interpreted to be, when considered as a whole, that the infarct shown on plaintiff’s electrocardiogram “must have occurred, some time in the past,” and represented “old changes— not new changes.” The question of whether his opinion as to causal relation between accident and infarct is based on reasonable medical probability is simply not in the case. If it is, then the testimony is innocuous under the opinion in Insurance Company of North America v. Myers (Tex.Sup.1966), 411 S.W.2d 710, 713:

“Reasonable probability, in turn, is determinable by consideration of the substance of the testimony of the expert witness and does not turn on semantics or on the use by the witness of any particular term or phrase.”

The admission of the testimony was not reversible error, in our opinion.

Other points have been fully considered and are overruled.

Affirmed.

      . “Plaintiff’s Exhibit No. 14
      Hillcrest Memorial Hospital
      CONSULTATION
      “Name: Mrs. Waller Putman Wood (Ludie) Room No. 321A
      Date 8/13/66; Hospital Number 281168
      Prom Doctor King to Doctor Ross;
      Note Findings and Recommended Treatment:
      Following the surgery she seemed to be very weak and had a fairly marked tachycardia and because of this and because of the fact that on x-ray the heart showed slight enlargement, I ordered an electrocardiogram. To my consider-ble surprise it came back showing very definite marked myocardial damage compatible with residuals of an infarct. A repeat electrocardiogram a few days later was similar. Whether this is an old infarct with scarring and not related to her present symptoms or whether this actually represents a recent infarct of a silent type or relatively silent type with no pain and with no cardiac failure, but only some weakness is not yet certain. At any rate we may say the following things: She has done well from the standpoint of recovery from surgery. She is a mild diabetic well controlled. She has hypertensive heart disease with the hypertension well controlled at the present time. Finally, she has definite evidence of residuals of a myocardial infarct on the electrocardiogram, but the age of this infarct is undertermined. She will .still be treated conservatively and another EKG will be taken.
      s/ P. H. Ross
      P. H. Ross, M.D.”

      . E. g.: Midwestern Insurance Company v. Valentine, Tex.Civ.App., 381. S.W. 2d 957, 959, no writ; American General Insurance Company v. Florez, Tex.Civ.App., 327 S.W.2d 643; Atkinson v. United States Fidelity & Guaranty Go., Tex.Civ.App., 235 S.W.2d 509, 514, writ ref., n. r. e. See also American Surety Co. v. Semmons (Tex.Civ.App., 1967), 413 S.W. 2d 732, Syl. 4.


author: FANNING, Justice. DAVIS, Justice.

text:
    CARROLLTON-FARMERS BRANCH INDEPENDENT SCHOOL DISTRICT, Appellant, v. Jay P. KNIGHT, as next friend of Tex Lloyd Knight and Sallye Anne Thompson Knight, Appellees.
    No. 7837.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 1, 1967.
    Rehearing Denied Aug. 29, 1967.
    Earl Luna, Dallas, for appellant.
    Paul E. Lokey, Dallas, Jerry Garrett, Denton, for appellees.
   FANNING, Justice.

On January 13, 1967, Sallye Anne Thompson and Tex Lloyd Knight were married under a valid marriage license. Sallye Anne, a female, eighteen years of age, was under the laws of Texas authorized to marry; Tex Lloyd Knight, a male, seventeen years of age, and having the required statutory parental consent to obtain a marriage license, was also duly authorized to marry. Such marriage was in all respects a valid and lawful marriage under the laws of Texas.

At said time Sallye Anne and Tex were students at R. L. Turner High School, which high school was under the jurisdiction of appellant school district.

On January 16, 1967, Sallye Anne and Tex were suspended from school because of their marriage on January 13, 1967, based upon certain regulations of the school board.

On January 18, 1967, the Judge of the 68th District Court issued a temporary restraining order directed to appellant school district and the President of its Board of Trustees, permitting appellees Sallye Anne Thompson Knight and Tex Lloyd Knight to attend school for scholastic purposes only.

On January 26, 1967, the Board of Trustees of appellant school district passed a resolution stating, among other things, to the effect that students who married would be suspended for three weeks and could reapply for attendance at school only after the expiration of three weeks, etc. No written three weeks rule existed on the date of ap-pellees’ marriage. At and prior to the date of marriage of the appellees, appellant school district had a written resolution adopted in 1959, which resolution stated in substance that students who marry shall immediately terminate their present enrollment and report to the principal’s office and ask for reinstatement, and after an interval of time necessary for re-enrollment, the student would be admitted to classwork, but could not participate in extra-curricular activities, etc.

On February 3, 1967, the trial court, after hearing the evidence adduced, entered a temporary injunction enjoining the appellant from enforcing a suspension order suspending either of said appellee students from attendance as students for scholastic purposes only at said high school. Appellant has appealed.

The principal question involved here is whether the trial court did or did not abuse its discretion in granting the temporary injunction under the record in this case. Involved here is the question of whether marriage alone is sufficient grounds to suspend appellee students from attendance at a public free school in Texas, for scholastic purposes only, wherein appellee students were unquestionably carried as lawful scho-lastics for which the State of Texas had furnished funds in accordance with the laws of Texas.

Appellee Sallye Anne Thompson Knight was an honor student at R. L. Turner High and hoped to earn a scholarship to attend college. The great preponderance of the evidence was to the effect that appellee Tex Lloyd Knight, at the time of the suspension, was taking six courses at R. L. Turner High School, and that during the third six weeks he was failing in American History and English; that he had been having a difficult time in school scholastically and that if he missed class lectures for a period of three weeks he would fail.

The great preponderance of the evidence adduced at the trial established that the presence and attendance at R. L. Turner High School of appellees pursuant to the trial court’s restraining order did not cause turmoil, unrest and upheaval against education by fellow students. The appellees were not approached by other students regarding the subject of married life. The ability of appellees to study was not affected by marriage. The evidence also showed that the resolution suspending students from school for marriage had not been uniformly applied.

The Attorney General of Texas, on December 3, 1942, in opinion No. 0-4965, held that a rule of the Board of Trustees of a school district suspending for the current year a student who marries was invalid, unreasonable and an abuse of discretion on the part of the school board, citing among other authorities McLeod et al., Trustees Moss Point Public Schools v. State ex rel. Col-mer, 154 Miss. 468, 122 So. 737, 63 A.L.R. 1161. We quote from said opinion No. 0-4965, in part, as follows:

“Your question is as follows:
“Is the rule of the Board of Trustees of the San Marcos Independent School District suspending for the current school year a student who marries reasonable and valid?
“In your letter you cite the applicable Texas statutes and also a number of cases decided by the courts of this State sustaining various rules established by school boards for the government of the school and for the discipline of the student body. The case of McLeod et al v. Trustees, et al, 122 So. 737, referred to in your letter clearly holds that a rule established by school authorities such as the rule in question is unreasonable and invalid. The opinion is by the Supreme Court of Mississippi and while it is persuasive, it is, of course, not binding in this state.
“Since marriage is a domestic relation favored by the law, it is our opinion that a rule established by a school board suspending a student for no other reason than that the student marries would, as a matter of law, be an unreasonable one and an abuse of discretion on the part of the school board, if not against public policy.
“It is thought that the opinion of the court in the case of McLeod, supra, is sound and should control our answer to your question. Therefore, we think that your question should be, and it is answered in the negative.”

The case of McLeod et al., Trustees Moss Point Public Schools v. State ex rel. Col-mer, 154 Miss. 468, 122 So. 737, 63 A.L.R. 1161 (1929) involved an attempt to exclude a girl between the age of 15 and 16 from attending public school because she was married. The Supreme Court of Mississippi in its opinion holding that the girl should be admitted to school, stated in part as follows:

“The question is whether the ordinance under which she was denied admittance was valid. Section 201 of the Constitution provides as follows:
‘It shall be the duty of the legislature to encourage, by all suitable means, the promotion of intellectual, scientific, moral, and agricultural improvement, by establishing a uniform system of free public schools, by taxation or otherwise, for all children between the ages of five and twenty-one years, and, as soon as practicable, to establish schools of higher grade.
‘(1) The high schools established under the laws of this state are a part of the system of uniform public free schools provided for by the Constitution. They come within the definition of “schools of a higher grade”.
‘Section 161, c. 283, Laws of 1924 (section 8817, Hemingway’s Code), the School Code, provides as follows: “Every parent, guardian or other person in the State of Mississippi having control or charge of any child or children between the ages of seven and sixteen years of age inclusive, shall be required to send such child or children to public day school or to a private denominational or parochial day school taught by a competent instructor, and such child or children shall attend school for at least eighty days (80) during each and every scholastic year; provided that the period of compulsory attendance for each school shall commence at the beginning of the school, unless otherwise ordered by a board of trustees or a municipal separate school district for the schools of that district, or by the county school board for other schools in the county coming under the provisions of this act”.
‘Paragraph 1 of section 126 of chapter 283 of the Laws of 1924 (Hemingway’s Code 1927, § 8767) empowers school trustees “to prescribe and enforce rules, not inconsistent with law or those prescribed by the state board of education, for their own government and government of schools, and to transact their business at regular and special meetings called for such purpose, notice of which shall be given each member.” ’
“Marriage is a domestic relation highly favored by the law. When the relation is entered into with correct motives, the effect on the husband and wife is refining and elevating, rather than demoralizing. Pupils associating in school with a child occupying such a relation, it seems would be benefited instead of harmed. And, furthermore, it is commendable in married persons of school age to desire to further pursue their education and thereby become better fitted for the duties of life. And they are as much subject to the rules of the school as unmarried pupils, and punishable to the same extent for a breach of such rules.”

In Board of Education of Harrodsburg, Kentucky et al. v. Bentley, 383 S.W.2d 677, 11 A.L.R.3d 990 (Ky.Civ.App.1964), a student was required to withdraw from school for a year because of marriage. The court held the regulation was invalid and stated:

“In 47 Am.Jur., Schools, § 155, it is said:
“ ‘However, a pupil may not be excluded from school because married, where no immorality or misconduct of the pupil is shown, nor that the welfare and discipline of the pupils of the school is injuriously affected by the presence of the married pupil.’
* * * * * * “For the appellee it is pointed out that all persons meeting the residence, moral and mental qualifications are entitled to an opportunity for publicly furnished education until attaining age twenty-one. In today’s economy we judicially note the increasing demand for education as a prerequisite for employment. Certainly there is no reason to suppose that the marriage of a student will diminish the need of that student for an education— indeed, just the contrary would appear the case.”

One of the first Texas cases dealing with married students was the case of Kissick v. Garland Independent School District, Tex.Civ.App., 330 S.W.2d 708, wr. ref., n. r. e. (1959). This case involved the marriage of a sixteen year old boy and a fifteen year old girl. After his marriage Kissick was barred from further participation in athletic activities, but was allowed to continue his classroom work, pursuant to a regulation which provided that “married students or previously, married students be restricted wholly to classroom work; that they be barred from participating in athletics or other exhibitions, and that they not be permitted to hold class offices or other positions of honor.” The Dallas Court of Civil Appeals held that such regulation was reasonable in that the student was allowed to continue his classroom work. Although the court in the Kissick case did not deal directly with complete suspension from school due to marriage, it said by way of dicta:

“Apart from these considerations Jerry Kissick, Jr., had a constitutional right to attend the Garland School and take part in its functions subject to such reasonable rules and regulations as might be adopted by the School Board from time to time.” (Emphasis added).

In Alvin Independent School District et al. v. Cooper, 404 S.W.2d 76, no writ (1966), the Houston Court of Civil Appeals, in an opinion written by Chief Justice Bell, held that the board of trustees of said school district was without authority to adopt a rule or policy that excluded a mother of a child from admission to school where she was of an age for which the State of Texas furnished school funds. This opinion reviews statutes which are also pertinent to the case at bar. We quote from said opinion in part as follows:

“The only reason appellee was being denied admission was because of a rule adopted by appellants that forbids admission of a married mother. * * *
“We are of the view that appellants were without legal authority to adopt the rule or policy that excludes the mother of a child from admission to the school if she is of an age for which the State furnishes school funds. Appellee was when this suit was filed and tried and is now under 18 years of age. She was listed by appellants as a scholastic for whom funds should be available to the school district.
“It is true as appellants contend that Article 2780, Vernon’s Ann.Tex.Civ.St. gives trustees broad powers to enact rules for the administration of school affairs.
“Certainly under it rules may be passed that the trustees deem necessary to maintain discipline among students, but this does not mean they may enact a rule the effect of which permanently excludes a person of scholastic age from attendance at school. We think the above statute must be construed in the light of other statutes in determining the authority of the school trustees.
“Article 2902 V.A.T.S. provides that all children over six years of age and under 18 years of age at the beginning of the scholastic year shall be included in the scholastic census and shall be entitled to the benefit of the public school fund for that year. It further provides that the trustees shall admit the benefits of the public schools to any person over six and not over 21 years old at the beginning of the scholastic year, if such person or his parents or legal guardian reside within the * * * district. (Emphasis ours).
“The effect of this article of the statute is to give the benefits of the public school funds to those persons between six and 18 years of age but it goes further and defines persons who are entitled to admission as those persons within the district or whose parents or guardians are within the district, who are over six years of age and not over twenty-one. Such persons are entitled to admission as a matter of law.
“Article 2904 authorizes school districts to admit persons under six and over 21 to school and to provide the conditions for their admission. It then provides that as to such persons as are found to be incorrigible, the trustees may suspend such persons but such suspension shall not extend beyond the current term.
“The effect of those statutes when construed together is to require a school district to admit persons over six years of age and under 21 years of age provided they, their parents or guardian reside in the district. The school district is therefore without legal power to adopt the rule involved in this case.
“This holding does not mean that rules disciplining the children may not be adopted, but any such rule may not result in suspension beyond the current term.
“We do not deem Article 2892 V.A.T.S. as material to this case. It merely requires the attendance at school of children between the ages of 7 and 17 years for at least 165 days per year. We have no case involving this statute. We have a case where a scholastic who is entitled to attend wants to do so but is prevented from doing so by a rule the school district had no legal authority to pass.
“The trial court correctly overruled the plea to the jurisdiction and correctly issued its writ.”

The latest Texas case dealing with aspects of the question here involved is Anderson v. Canyon Independent School District, by the Amarillo Court of Civil Appeals, Tex.Civ.App., 412 S.W.2d 387, no writ (1967), majority opinion by Chief Justice Denton, with Justice Northcutt dissenting. The majority opinion held that the school board was without authority to adopt a rule that students who marry during the school term must withdraw from school for the remainder of the school year and that the board could not deny admission to the student because of the fact that she was married. We quote from the majority opinion by Chief Justice Denton, in part as follows:

“The facts are substantially undisputed. Judy Rae Anderson is sixteen years of age. She withdrew from the ninth grade of an Amarillo Junior High School on December 21, 1966 and on December 28, following, she married James Anderson. They established their residence in Canyon, Texas, on January 1, 1967. She applied for admission in the Canyon Junior High School in early January and was denied admission by the school authorities. She was denied admission solely because of a rule previously established by appel-lees which read: ‘Students who marry during the school term must withdraw from school for the remainder of the school year.’ Appellees concede she is qualified in all other respects to be admitted as a student.
“Unquestionably, Article 2780, Vernon’s Ann.Tex.Civ.St. gives the school trustees broad powers to govern and manage the affairs of the schools under its jurisdiction. Generally the courts will not interfere with rules and regulations promulgated by school authorities unless such rules and regulations reveal a clear abuse of powers and discretion. McLean Independent School District v. Andrews (Tex.Civ.App.) 333 S.W.2d 886. The' provisions of this statute must be considered in the light of other statutes to determine the authority of the trustees to enact a particular rule or regulation. Article 2902, V.A.T.S. provides: * * * Those so entitled to admission are persons between six and eighteen years of age if such person or his parents or guardian reside within the school district. In interpreting this article, the Houston Court of Civil Appeals held: ‘Such persons are entitled to admission as a matter of law’. Alvin Independent School District v. Cooper (Tex.Civ.App.), 404 S.W.2d 76. Article 2892, V.A.T.S. requires the compulsory school attendance of ‘every child’ who has reached the age of seven and not more than 17 years of age. It is undisputed the appellant does not come within the exception of this act, namely a high school graduate.
“Article 2904, V.A.T.S., in addition to giving school trustees power to admit students over and under the scholastic age, under terms they deem proper and just, also provides: ‘They (trustees) may suspend from the privileges of schools any pupil found guilty of incorrigible conduct, but such suspension shall not extend beyond the current term of the school.’ There is no suggestion here that appellant’s background, conduct or behavior was in any way questioned. As far as this record shows, she has never been enrolled in a school in the Canyon School District. She simply was denied admission because of the fact she was married.
“Appellee School District relies principally upon State ex rel. Thompson v. Marion County Board of Education [202 Tenn. 29], 302 S.W.2d 57. (Sup.Crt. of Tennessee). There the school board adopted a rule which provided that if any student married during a school term he or she would be automatically ‘expelled * * * for the remainder of the current term’. If the marriage took place during vacation such student would not be ‘allowed to attend any county school during the term next succeeding’. The court upheld the school board’s action in suspending the eighteen year old married student. The only statutory basis cited in support of its decision was an article which made it the duty of the board ‘to suspend or dismiss pupils when the progress or efficiency of the school makes it necessary’. Except for the citing with approval of some of the language in the Thompson case in Kissick v. Garland Independent School District (Tex.Civ.App.) 330 S.W.2d 708 (Ref. N.R.E.), we have been cited no other case which has followed the Tennessee case above cited. The Kissick case is not in point. It involved the construction of a rule preventing married students from participating in certain extra-curricular school activities. It did not involve board action -which made marriage, ipso facto, the basis for denial of a student’s right to obtain an education. In fact, the decision recognized the married student ‘had a constitutional right to attend the Garland School and take part in its functions subject to such reasonable rules and regulations as might be adopted by the School Board from time to time’.
“We think the decisions pronounced in Board of Education of Herrodsburg v. Bentley, 383 S.W.2d 677 [,11 A.L.R.3d 990] (Court of Appeals of Kentucky) and Alvin Independent School District v. Cooper (Tex.Civ.App.) 404 S.W.2d 76, are controlling. In the Bentley case the rule promulgated by the School District read: ‘Any student, either boy or girl, who marries, automatically must withdraw immediately from School and cannot re-enter school for one full year, and then only as a special student with permission of the principal. A special student cannot attend home room or study halls or enter into any class activities, social events or athletics. If, upon reentering school after the year has elapsed, the student becomes pregnant, she will au'tomatically withdraw until after the birth of the child’. There the High School student was required to withdraw from school when she married during the school term. She was later denied readmission. The trial court granted a temporary injunction requiring the school board to admit her as a student. In affirming the trial court the court reviewed the pertinent statutes and held: ‘It is our conclusion that the decision of the trial court is correct; the instant regulation is arbitrary and unreasonable, and therefore void. The fatal vise of the regulation lies in its sweeping, advance determination that every married student, regardless of the circumstances, must lose at least a year’s schooling’. The court concluded: ‘The Board’s discretion is foreclosed in advance, no matter what the facts. Such prejudgment is unreasonable and arbitrary’.
“In Alvin Independent School District v. Cooper (supra), the rule under consideration read: ‘A pupil who marries can no longer be considered a youth. By the very act of getting married, he or she becomes an adult and assumes the responsibility of adulthood. As a married student he or she shall not serve as an officer of the student body or any class or school organization. A married pupil shall not represent the school in an interschool contest or activity and shall not participate in school activities other than regular classes. If a married pupil wants to start her family, she must withdraw from public school. Such a pupil will, however, be encouraged to continue her education in the local adult education program and correspondence courses’. In affirming the trial court which required the School District to admit the student, the Houston Court of Civil Appeals reviewed the relative statutes which we have referred to above and held: ‘We are of the view that appellants were without legal authority to adopt the rule or policy that excludes the mother of a child from admission to the school if she is of an age for which the State furnishes school funds. Appellee was when this suit was filed and tried and is now under 18 years of age.’ The court concluded the school board had no legal authority to pass and enforce the rule and that the effect of Article 2902 was to entitle persons, otherwise qualified under the statutes, the right to admission as a matter of law.
“The school board in the instant case contends the Cooper case is distinguishable in that the rule in that case had the effect of permanently excluding a person coming under such rule from admission in school, while the rule here merely excludes a student temporarily. This is simply a matter of degree and we do not interpret the Cooper case to base its decision on the basis of permanence. The court held the school board had no legal authority to pass the rule for the reason otherwise qualified persons were ‘entitled to admission as a matter of law’. If a student is entitled to admission, the question of the length of exclusion is not material. (Emphasis added).
“A so-called temporary exclusion was passed by the school board in Board of Education of Harrodsburg v. Bentley (supra). As shown above, both the trial court and appellate court denied enforcement of that regulation. It is to be' noted the court in the Bentley case also refused to follow State ex rel. Thompson v. Marion County Board of Education (supra) after citing cases from some six states. The court observed: 'It may be observed the Tennessee decision just cited is the only one which may be said to lend support to the position of the Board here’.
“When the applicable statutes are considered together, their clear intent is to require a school board to admit persons six years of age and under twenty-one years of age, provided they, their parents or guardian reside in the district. The rule adopted by the school board here is in violation of these statutory requirements. Whatever our personal views may be, we conclude the Board was without legal authority to adopt and enforce the rule in question. The rule had the sweeping effect of denying every married student, regardless of the facts or circumstances, at least a portion of a year’s education. The rule takes effect immediately upon marriage. The student then ‘must withdraw from school for the remainder of the school year’, without regard to when the marriage took place. We conclude the rule is not in conformity with applicable statutes and is unreasonable and arbitrary. (Emphasis added).
“The judgment of the trial court is reversed and judgment is here rendered that the defendants below be enjoined from enforcing the rule under consideration as it applies to Judy Rae Anderson; and that the defendants admit the said Judy Rae Anderson as a student in the Junior High School of that district.”

The case of Ferrell et al. v. Dallas Independent School District et al., 261 F.Supp. 545 (1967), cited by appellant, is not in point here as that case involved whether or not students who were longhaired musicians had the right to wear long hair to school in violation of a regulation involving neatness of hair.

The case of State ex rel. Thompson v. Marion County Board of Education, 202 Tenn. 29, 302 S.W.2d 57 (1957) relied on by appellant, is not in accord with the weight of authority in the United States as pointed out in Anderson, supra, and was not followed in Anderson.

In the case at bar, appellees were lawfully enrolled scholastics in R. L. Turner High School in appellant school district and possessed all the statutory requirements to attend said school as scholastics. Their marriage was in all respects a legal marriage under the laws of Texas and such marriage being in all respects proper, legal and in compliance with the statutes of Texas could not be considered in any way to be against the public policy of the State of Texas. The girl was 18 years of age and was of lawful age to marry; the boy was 17 years of age, and had the required statutory parental consent to marry and secure a valid marriage license.

There was no evidence that either of ap-pellees were guilty of any “incorrigible” or improper conduct in any manner. They were suspended from school merely because they married while being students at said fechool.

We think the weight of authority in Texas and in the United States is to the effect that marriage alone is not a proper ground for a school district to suspend a student from attending school for scholastic purposes only.

We hold that the trial court did not abuse its discretion in granting the temporary injunction against the appellant under the record in this cause. All of appellant’s points have been considered and are overruled.

The judgment of the trial court is affirmed.

DISQUALIFICATION

DAVIS, Justice.

The writer honestly feels that he should disqualify himself from the decision in the above and foregoing case for the following reasons:

I was one of seven children of tenant farmers. My Mother passed away when I was only nine years of age. It was always her ambition, and it became mine, to get an education and become a lawyer. I finished Glenwood, unaffiliated, High School when I was 18 years old. I tried to enter college, but, met with two most embarrassing situations, and could not do so. I worked as a common laborer. Finally, I decided to get married, accumulate enough wealth to attend college, get a law degree and pursue my profession. I married on October 26, 1929. The Crash of 1929 was really felt in 1930. I was a tenant farmer and, although I was plagued with my difficulties, I managed to hold my own.

When I decided it was impossible for me to attend college, I decided to get my law degree by home study. I traded two “frying size chickens and a mess of turnip greens” for my first lawbook.

The only law that I know is what I have read from the lawbooks at home (many nights I have studied all night without any sleep), and have gained from experience. In 1934, I notified the Board of Legal Examiners that I was ready to take the examination for a license. In return, I was notified that I would have to furnish an “AFFILIATED HIGH SCHOOL DIPLOMA”, file an application, and then wait 27 months before I would be permitted to take the Bar Exams. No one can imagine the depressed feeling that was brought upon me. I was married, then the father of two children, and was too poor to think about going to school. After much serious consideration, and a talk with Superintendent Henry Mc-Clelland and Principal John W. Avery of the Gilmer Affiliated High School, I decided to make the race for Justice of the Peace.

While serving as Justice of the Peace, I would get an affiliated high school diploma. To my surprise, they told me that I could attend the school without any payment of tuition whatever, if I had the ambition and the “Guts” to do it. I made the race and was elected. I entered Gilmer High School in the fall of 1935 and received my AFFILIATED HIGH SCHOOL DIPLOMA on June 1, 1936, at which time I was 27 years old, the father of three children and had another one on the way. I did not receive my license to practice law until April 29, 1940, at which time I was 31 years old.

I have always been taught that the best education that you can get, the better off you will be. To me, there is nothing immoral, wrong, or degrading about a legal and • moral marriage. Of course, no one approves of the marriage of teen-agers, unless there is a good reason. My wife and I were teen-agers when we married. The school trustees of the Gilmer Affiliated Independent School District were so proud of the fact that I was attending the school because of my ambition that they did not charge any tuition. I was permitted the same privileges that were permitted all other school children. In the beginning, it was an awful experience. To me, any Board of Trustees who would do anything to punish or delay anyone that does not do anything that is morally wrong is not thinking in the terms of the Gospel.

As a result of my being permitted to attend High School, after I was married, I have served one term in the Texas Legislature, and I am now serving my third term on the Court of Civil Appeals. Although, I am not a perfect man, I am quite proud of the experience that I have had, and am still married to a wonderful woman and we have four children of whom we are justly proud.

Where would I be today if I had not been permitted to attend a high school because of my marriage? For this reason, I disqualify myself.


author: CLAYTON, Justice.

text:
    Armando GOMEZ LEON et ux., Appellants, v. The STATE of Texas, Appellee.
    No. 5854.
    Court of Civil Appeals of Texas. El Paso.
    May 24, 1967.
    Rehearing Denied Sept. 20, 1967.
    Albert Armendariz, El Paso, for appellants.
    Crawford C. Martin, Atty. Gen., Watson C. Arbold, Hawthorne Phillips, T. B. Wright, Carroll R. Graham, Robert D. McGee, George M. Cowden, A. J. Carubbi, Jr., and Charles Bedsole, Asst. Attys. Gen., Austin, for appellee.
   OPINION

CLAYTON, Justice.

This is a condemnation case in which the State of Texas sought to condemn for a freeway 11,257 square feet of land situated in El Paso, Texas owned by appellants Armando Gomez Leon and wife. Special Commissioners awarded appellants $6,685.-00, from which award the State of Texas filed its objections and a jury trial was had in the County Court at Law of El Paso County, Texas. The jury found, in answer to a single special issue, that the market value of the land on the day of taking (March 1, 1965) was $3,377.10. Judgment was rendered on this verdict, from which judgment appellants take this appeal.

Appellants present ten points of error which will be discussed in groups in so far as possible. Their first point of error complains of the ruling of the trial court in allowing the State to ask appellant Gomez Leon what he had paid for the property when the same was purchased, at least fourteen years before the date of condemnation. Appellants rely on Thompson v. State, 319 S.W.2d 368 (Tex.Civ.App., 1958; n. w. h.) where it is stated on pages 370 and 371:

“The general rule governing the above is stated in 16 Tex.Jur., Sec. 248, p. 572, as follows:
“ ‘The cost to the owner of the land and of the improvements subsequently made is not of itself evidence of market value. If such evidence is to be received at all, it is not admissible when a considerable interval of time has elapsed between the date of the purchase and the time of the litigation.’
“See also Scott v. McLennan County, Tex.Civ.App., 306 S.W.2d 943, W/E Ref. N.R.E.; Hubbard v. Harris County Flood Control Dist., Tex.Civ.App., 286 S.W.2d 285, W/E Ref.N.R.E.
“The object of the inquiry to the jury is to determine the reasonable market value of the property at the time of the taking. Market value in a condemnation suit is the price for which property will sell when offered by one who desires to sell, but is not obliged to do so; and is purchased by one who desires to buy, but is under no necessity of buying. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 [979]. Any evidence which may reasonably contribute to an answer of such issue is admissible. The price the owner paid for the property is not admissible as such (since it does not necessarily reflect on market value at the time of the taking). It may become admissible, however, if sufficient predicate be developed whereby the evidence tends in a reasonable manner to reflect on the market value at the time of taking. To render such evidence admissible, it should be shown that the sale was very recent; that values have not changed in the area since the date of such sale; that such sale was not a forced sale, or a ‘kinfolks’ sale’; and that such sale was one between a seller who desired to sell but was not obliged to do so, and a buyer who desired to buy but was under no necessity of buying. When such predicate is laid, we think evidence of the price the owner paid for the property is admissible as tending to reflect on the reasonable market value at the time of the taking. Until such predicate is laid, the evidence is not admissible. As to how recent or how remote in point of time such purchase of the property occurred, the more remote in point of time of the purchase, the less likelihood the admissibility of the purchase price — and the more recent the purchase, the more likelihood the admissibility of the evidence. The trial judge has and should have broad, but not unlimited discretion, in determining the admissibility of evidence of the price the owner paid for his property, under the foregoing rules. Should the evidence be inadmissible upon application of the foregoing rules — but be erroneously admitted, one resulting vice is the influence of such on the jury to place a value on the owner’s property below market value simply because the owner acquired it at a price considerably lower.” (Citing cases).

Appellee’s position is that since Gomez Leon was allowed to testify on direct examination that he had bought the property because it was right across the street from Texas Western College and he had figured that the only place the college could grow was toward his property, the State should be allowed to show the original purchase price, not as a comparable sale, but in order to prove that the area had not changed appreciably since the purchase. The testimony was:

“Q. I see, so it is your testimony that actually it was about, it cost you about $800.00?
A. Yes, somewhere around there.
Q. And, of course, that was over ten years ago, wasn’t it?
A. Eighteen, twenty years ago.
Q. I see, now, then, actually, Mr. Gomez-Leon, has the area where your property is located, changed practically at all, right around your area?
A. Well, it wasn’t much land left there, it’s industrial zone there, and the Globe-Milles is right behind it.
Q. I understand, but the land around where your place is practically hasn’t changed at all since that time has it ?”

Appellee maintains that if it were error to admit such testimony for the stated purpose, it was harmless error. At this point we should state that in the Thompson case, relied on by appellants, the court further observed:

“We recognize that there are cases in which evidence of the amount of money the owner paid for the property is erroneously admitted, but by reason of the amount of the award, and the other evidence of market value at the time of the taking, in the record, such error is deemed harmless.”

We believe this to be the case here, since Gomez Leon testified that he had paid about $800.00 for the land in question in 1951, whereas the award of the jury was $3,377.10, over four times the purchase price. Furthermore, the Texas Supreme Court, in Dennis v. Hulse, 362 S.W.2d 308, 309 (1962) has held:

“ * * * Under our practice an appellate court is not authorized to reverse merely because the record discloses some error that is reasonably calculated to cause a miscarriage of justice. The party appealing must also show that it probably did cause the rendition of an improper judgment in the case. Rules 434 and 503, Texas Rules of Civil Procedure.” (Emphasis supplied).

It cannot be held here that the questioning on the part of the State probably did cause the rendition of an improper judgment. Nor is our opinion in this respect altered by the appellants’ recently cited case of Ludlam v. State, 405 S.W.2d 139 (Tex.Civ.App., 1966; n. w. h.), which recites at page 141:

“ * * * It is well settled that the price paid for the land ten years before the taking is not admissible on the issue as to the value of the property at the time of the taking — State of Texas v. Curtis et al. Tex.Civ.App., 361 S.W.2d 448 — and we cannot say in view of all of the evidence in the case that such evidence was not harmful to appellants and for this error the judgment of the trial court is reversed and the cause remanded for another trial.” (Emphasis supplied).

In the case before us, the State made it clear in quoted testimony that the purchase price of appellants’ property was not elicited in an attempt to show value of the property at the time of taking, but merely to show that there had been no tremendous increase in the value of the property taken from 1951 to the date of taking. Thus we conceive the Ludlam case to be distinguishable from the case before us. The first point of error is overruled.

Points of Error Nos. II, III, IV, V and VI relate to alleged errors on the part of the court in admitting so-called incompetent testimony. Points Nos. II, III and IV relate to the testimony regarding the price the College was paying for adjacent property, which allegedly was inadmissible since the College was an agency with condemnation powers and therefore such sales were in the nature of forced sales and not admissible on the issue of fair market value; that this incompetent testimony together with the testimony of “noncomparable” sales, such as the original sales price, resulted in reversible error. As to the first objection, appellants point to the testimony of Clyde Lyons, an appraiser presented by the State who, on voir dire examination, testified:

“Q. Number 1, is Texas Western College, to your knowledge, a branch of the University of Texas?
A. Yes, sir.
Q. Under the direction of the Board of Trustees of the University of Texas?
A. Yes, sir.
Q. And this is a State Agency ?
A. Yes, sir, to my knowledge.
Q. And subject to the right of Eminent Domain, is that correct ?
A. To my understanding, yes, sir,
Q. Has that right to take that property, just like the State, the Highway Department, is taking it ?
A. Yes, sir.
Q. And the sales that you are going to testify to are to this particular Texas Western College ?
A. To Texas Western College, that is correct.
Mr. Armendariz: If the Court please, I renew my objection.”

And on cross-examination, testified as follows :

“Q. I submit to you that on your report, the main report you made on this, you had nothing of Texas Western [College] sales and purchases, is that correct?
A. No, sir, that is not correct.”

Appellants then cite State v. Curtis, 361 S.W.2d 448, 450 (Tex.Civ.App., 1962; ref., n. r. e.), which recites:

“Another element of the required similarity is that the comparable sales must be betweeti a willing seller and a willing buyer. A purchase by a condemning authority is not free and voluntary.”

The State in the instant case defends the introduction of “College sales” on the statement of counsel for appellants during the trial: “If the Court please, if counsel has such a sale from the college, maybe he can introduce it”. This statement was made during the cross-examination by State’s counsel of appellants’ appraisers, and after it was made it was followed by this colloquy:

“Q. (By State’s counsel) All right, sir, we’ll introduce the college sale, counsel has asked for it and we will introduce it, yes, sir. Since counsel said that I’ll ask you, do you know that the college is paying about 9‡ a square foot for that property within 100 foot of this property?
Mr. Armendariz: If the Court please, that is not what I asked for. If he’s got any such sales and it’s subject to the ruling of this Court, then for goodness sakes present them. He has already said he doesn’t know of any.
Mr. Arnold-. I may add—
Mr. Armendariz: He is badgering the witness and—
Mr. Arnold: counsel asked me to do it, then I’m going to ask the witness if he knows, and then I will present them when my time comes.
Mr. Armendariz: He’s already answered that.
The Court: I’m going to sustain the objection.”

Appellants’ counsel then moved for a mistrial, the ruling on which was held in abey-anee and the motion later renewed, at which time no ruling was made, but the State was allowed to proceed with testimony on College sales. In the state of this record it is most difficult to evaluate the possible harmful effect of this testimony, but taking into consideration that testimony concerning College sales was apparently invited and that the jury awarded appellants 3(⅛ per square foot of property, as against a lesser amount involved in the so-called College sales, we hold that the testimony admitted probably did not cause the rendition of an improper judgment in the case, and so overrule Points of Error Nos. II, III and IV.

The fifth point of error asserts error of the court in allowing the State to prove its case of market value by evidence prejudicial to appellants’ right to be fairly compensated even though the objections of appellants or lack of objections to some of the evidence might be deemed untimely. Appellants argue that the rulings of the trial court on the admissibility of evidence amounted to fundamental error in allowing the State to appropriate the property of appellants without “adequate compensation”, in violation of rights reserved to appellants as property owners in Article I, Section 17 of the Texas Constitution, Vernon’s Ann.St. and Amendments V and XIV of the United States Constitution. In our view of the record, no such fundamental error is shown, and we overrule this point of error.

The sixth point of error further claims that “reversible error was committed by counsel for the State in his deliberate questioning of witnesses on matters which he knew to be of an inadmissible character and of a prejudicial effect and which was likely to cause and probably did cause the jury to render an improper verdict.” This seems to' be largely reiterative of the matters presented under the fourth point of error and requires no further discussion. The sixth point of error is overruled.

Points VII, VIII and IX relate to the refusal of the court to submit to the jury an issue on the value of improvements to the land as requested by appellants’ counsel and to the submission of only one issue as to damages with no issue as to the value of improvements, thus depriving appellants of their constitutional rights under the Texas and United States constitutions. The sole issue submitted in the case before us was as to the value of the property taken with instruction that “the value of the buildings or other improvements on the land in question must be considered only to the extent that they enhance the value of the land to which they are affixed.” Appellants center their complaint on the use of the word “only” in the above instruction, and state that it is violative of the holding in the case of Lower Nueces River Water Supply District v. Sellers, 323 S.W.2d 324 (Tex.Civ.App., 1959; ref., n. r. e.). The cited case holds, at pages 330 and 331:

“In the instant case most of the witnesses valued the land separately from the improvements and valued each item of the improvements separately. This was necessarily so because some of the witnesses were qualified to testify as to the value of land, but not of buildings and other fixtures, while other witnesses were qualified to testify as to the value of the buildings, but not as to the value of farm land. While these separate values on improvements are admissible in evidence in arriving at the compensation, the improvements on the land taken are to be considered a part of the realty. They ordinarily have no market value separate from the land, and when considered in arriving at the amount of compensation or damages, improvements can only be considered to the extent that they add to, increase, or enhance the value of the land. Nowhere in the court’s instructions was the jury advised that the consideration of the improvements should be so limited. It is common knowledge that the amount improvements will increase or enhance the market value of land upon which they are situated will depend upon the location and use of the land, as well as the kind of improvements, the use for which they are suitable, their cost in relation to the value of the land, and many other factors. We think this erroneous instruction was calculated to and probably did cause the jury to improperly determine the value of the ‘property’ inquired about in said issue and thus led to an improper verdict and judgment.”

It is thus seen that the cited Sellers case endorses the instruction as given in this case. Furthermore, the appellants’ testimony as to the value of the buildings is as follows: The appraiser for appellants stated:

“Q. Is it your opinion that the building contributed nothing to the value of the land?
A. Well, it was bringing $80.00 a month. It contributed that — it was a grocery store at one time — so I wouldn’t say contributed nothing, but the building was a mess as far as that was concerned, it was very dilapidated.
Q. All right, was it dilapidated at the time you looked at it?
A. Yes, sir. First time, yes, sir.
Q. The first time, and when was that ?
A. Well, it was probably close to two years ago.
Q. And it was dilapidated even two years ago?
A. Yes, sir, it was my understanding that it was vacant at that time— I didn’t try to get in.
Q. I see, and you just looked on the outside ?
A. Yes, sir, that’s right.
Q. And so, then, we will say, am I correct in saying appraisalwise you put no value on the building, just on the land?
A. Yes, sir.”

Appellant Gomez Leon testified:

“Q. All right, did you in any way in setting your price of $18,000.00 on the property, separate the cost of the improvements from the land— * * *
A. No, I didn’t.
Q. You just think its worth $18,000.00 together ?
A. Yes.”

The State’s appraiser had seen the property previously, and testified:

“A. On this particular property, Mr. Armendariz, that I had seen up there, there was no evidence of there being a grocery store at the time I saw this property; there was no evidence at the time I saw the property, when I visited this area, as a Commissioner, there was no evidence to me that it was even rented and it contributed nothing as far as I was concerned.”

So there would have been no testimony to support' appellants’ contention here. Points VII, VIII and IX are overruled.

Point of Error No. X reads:

“THAT THE CUMULATIVE EFFECT OF THE FOREGOING AND OTHER ERRORS COMMITTED DURING THE TRIAL DEPRIVED APPELLANT OF- HIS RIGHT TO BE ADEQUATELY COMPENSATED FOR HIS PROPERTY.”

Since we have found no harmful error in this record, it is obvious that this point must be, and is hereby, overruled.

The judgment of the trial court is affirmed.