author: CULLEN, Commissioner.

text:
    George THOMAS et al., Appellants, v. H. A. BARNETT et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 5, 1965.
    Rehearing Denied Jan. 28, 1966.

      Herbert D. Liebman, S. Roy Woodall, Jr., Frankfort, for appellants.
    Kinsolving & Kinsolving, William H. Hays, Shelbyville, for appellees.
   CULLEN, Commissioner.

The Shelby County Planning and Zoning Commission entered an order approving preliminary plats for two industrial projects proposed to be constructed and operated in an “Interchange District” by the Long Silo and Block Company and the Kentucky Department of Highways. Certain property owners, whose lands adjoined the tract on which the projects were proposed to be constructed, brought an action in the circuit court upon a pleading styled “Complaint And Or Statement of Appeal,” asking that the order approving the plats be adjudged void, that any permits issued likewise be declared void, and that the planning and zoning commission be enjoined from issuing any permits for construction of the projects. The circuit court entered judgment denying the requested relief and dismissing the complaint. The plaintiff property owners have appealed.

The appellants argue that (1) there is a provision of the Shelby County zoning order which allows a light industry project as a special use in an Interchange District, if approved by the planning and zoning commission, and that this provision is unconstitutional; (2) the planning and zoning commission exceeded its authority in approving the plats because the proposed construction will extend beyond the limits of the Interchange District into an Agricultural District, and (3) the commission had no right, after having once entered an order denying approval of the proposed projects, to rehear the matter on its own motion and enter a new order approving the projects.

So far as the record before us indicates or even remotely suggests, the only thing the planning and zoning commission has done is to enter an order reciting its approval of the preliminary plats for the proposed projects. Nowhere in the record is there any evidence, pleading or even whispered rumor that this approval has any significance whatever. The zoning order is not in the record and we have no idea what its provisions are, except that in the appellees’ brief there is a quotation from Section 43 of the order which indicates that a planned-development project may be a special use in an Interchange District with the provision that “The procedure under Section 23.5 shall be followed.” Section 23.5 nowhere is set forth or quoted in this record and we have no idea what it says. The appellants would like us to assume that this section provides that the planning and zoning commission may authorize a planned-development project in an Interchange District if the project meets the approval of the commission, but there is not even so much as an allegation of a pleading that this is so. Actually, we would doubt that the order gives such authority to the planning and zoning commission, as distinguished from the board of zoning adjustment and appeals, because the granting of permission for special uses or special exceptions is not within the statutory powers of the zoning commission as set forth in KRS 100.854 and 100.860, while it is among the statutory powers of the board of adjustment and appeals under KRS 100.866. See Schmidt v. Craig, Ky., 354 S.W.2d 292.

The normal statutory powers of a county planning and zoning commission, under KRS 100.854 and 100.860, are to make recommendations to the fiscal court. The recommendations have no conclusiveness, finality or binding effect. From the record before us we are not warranted in concluding anything other than that the commission publicly expressed its approval of the preliminary plats for the proposed projects. Perhaps this could rise to the status of a recommendation, but no higher.

The first argument of the appellants, that “The Shelby County zoning ordinance provision which allows planned-development projects within an Interchange District, if approved by the Planning and Zoning Commission, is unconstitutional,” is not sustainable because there is nothing in the record before us to show that the zoning order contains any such provision.

The second argument, that “the Commission exceeded its authority by rezoning into a planned development project an area of land in an Agricultural District,” likewise cannot be sustained because as far as the record shows the commission did not purport to do any rezoning or in fact to do anything other than express its approval of the preliminary plats.

ThAhird argument, that “the Commission did not have the right to reopen proceedings on a use permit when it had previously entered a final order denying the permit,” fails also because there is nothing in the record to show that the commission undertook at any time to deny a permit or grant a permit or take any action that would be final or binding on anyone.

The entire proceedings impress us as being abortive. But the appellants have not shown any cause for court relief because they have not shown that anything of substantial significance has yet taken place.

The judgment is affirmed.


source: Caselaw Access Project

author: SMITH, Justice. POPE, Justice

license: Public Domain

text:
    Robert S. CALVERT, Comptroller of Public Accounts, Petitioner, v. The BRITISH-AMERICAN OIL PRODUCING COMPANY, Respondent.
    No. A-10782.
    Supreme Court of Texas.
    Nov. 17, 1965.
    Rehearing Denied Jan. 26, 1966.
    Waggoner Carr, Atty. Gen., Austin, H. Grady Chandler, Asst. Atty. Gen., for petitioner.
    Clark, Thomas, Harris, Denius & Winters, Austin, Jack Corman, Dallas, Fulbright, Crooker, Freeman, Bates & Jawor-ski, Jay W. Elston, Houston, Lewis L. Williams, Dallas, for respondent.
   SMITH, Justice.

This is a suit filed by British-American Oil Producing Company, plaintiff, in the District Court of Travis County, Texas, against Robert S. Calvert, State Comptroller of Public Accounts, defendant, for a refund of $3,866.79 sales tax paid under protest. Plaintiff and defendant both moved for summary judgment in the trial court. Plaintiffs motion was granted and the defendant’s motion was denied. The Court of Civil Appeals has affirmed the judgment of the trial court. 390 S.W.2d 305. We reverse the judgments of the trial court and the Court of Civil Appeals and render judgment that plaintiff take nothing by its suit.

The defendant claims that the plaintiff is liable for the tax under Article 20.02 et seq., Chapter 20, Title 122a, adopted by the Legislature and effective September 1, 1961, V.A.T.S. Article 20.02 imposes upon each separate sale at retail a “limited sales tax at the rate of two per cent (2%) of the sale price of each item or article of tangible personal property when sold at retail in this State.” The plaintiff is liable for the tax under this Article unless exempt under Article 20.04(H) of the Act. Since the transaction involved was in no sense a “bid,” the portion of Article 20.04(H) applicable here is:

“(H) * * * There are exempted from the taxes imposed by this Chapter the receipts from the sale, use or rental of, and the storage, use or other consumption in this State of, tangible personal property (i) used for the performance of a written contract entered into prior to the effective date of this Chapter * * *.” [Emphasis added.}

The facts are undisputed. The contract involved is in writing. On July 26, 1961, the plaintiff entered into a contract with International Business Machines Corporation, as “seller,” for the purchase and sale of three IBM machines. At the time of delivery of the machines an exemption certificate was issued by plaintiff to IBM, the seller, claiming an exemption for this transaction from the Act under the provisions of Section (H), Article 20.04, supra.

Plaintiff and defendant stipulated in the trial court in connection with their motions for summary judgment that:

“1. Plaintiff, * * * after November 16, 1961, the date of the installation and delivery of the computer machines which is1 the subject of the contract in issue in this case has used said computer machines in the accounting procedures in the conduct of its business.
“2. After installation and delivery of the computer machines, * * * Plaintiff did not use the same in connection with any written contract entered into by Plaintiff with any person, firm or corporation prior to September 1, 1961, other than the contract which is the subject of this suit.” [Emphasis added.]

Plaintiff attached affidavits in support of its motion for summary judgment. The motion alleged that the affidavits together with the contract between it and IBM and other exhibits attached, when used in connection with the plaintiff’s petition, establish that there is no genuine issue as to any material fact and that the plaintiff is entitled as a matter of law to a refund of the tax imposed and paid under protest. D. W. Holder, plaintiff’s agent, made an affidavit in support of plaintiff’s motion for summary judgment stating that on July 26, 1961, plaintiff entered into the written contract with “IBM” for the purchase of the machines described in the contract, and that such tangible personal property, according to the terms of the contract, was used by IBM “ * * * for its performance of said written contract * * The affidavit further alleged:

“In performance of the obligation imposed upon IBM by said contract, IBM delivered and installed the tangible personal property as called for in said contract at plaintiff’s Dallas, Texas office, completing such installation on November 16, 1961.” [Emphasis added.]

The contract reflects that the total purchase price of the machines was $164,-450.00. The contract provides that the agreement shall be governed by the laws of the State of New York. The prices fixed in the contract were F.O.B. IBM plant. The contract contains a provision that any taxes “ * * * however designated, levied or based on such prices or on this Agreement or the machines, including state and local privilege or excise taxes based on gross revenue, and any taxes or amounts in lieu thereof paid or payable by IBM * * * ” shall be added to the prices set out in the contract.

The defendant has consistently contended as reflected in his notice of disallowance of the claim for refund, in his reply to plaintiff’s motion for summary judgment and in his motion for summary judgment, that the tax was due and payable for the reason that the taxpayer used the “computer system” in a manner other than for the performance of a written contract. The notice of disallowance of the claim recites that the “ * * * contract was entered into prior to September 1, 1961, but the contract was performed in full on the date of delivery. In accordance with Attorney General’s opinion No. C-30 and Sales Tax Ruling No. 2, the later use of the computer system was a taxable use and is subject to the use tax imposed by Article 20.03 of the Limited Sales, Excise and Use Tax Act.”

The defendant, in his reply to the plaintiff’s motion for summary judgment, states that the provisions of the Act relied upon by the plaintiff to support its claim for an exemption, “ * * * do not apply to a mere contract of sale between the seller and purchaser of tangible personal property, but apply only to another written contract entered into by the purchaser and the tangible personal property purchased is to be used to perform such other contract as provided * * * ” in the exemption statute, Article 20.04(H), supra.

Defendant’s motion for summary judgment, after adopting his answer to plaintiff’s motion for summary judgment, additionally alleges that the “ * * * contract does not provide for any ‘use’ of the three machines by any party and only provides that they shall be delivered and installed by IBM in order to complete the terms of the contract of sale.”

Thus, the record before this Court presents the single question of law as to whether the written contract of sale and purchase between IBM and the plaintiff is such a contract as required by the exemption statute, Article 20.04(H). If so, the exemption must be allowed. However, we agree with the defendant’s contention that the exemption statute does not exempt the written contract of sale involved. The parties cite no decisions by the courts in this or any other jurisdiction to support their respective contentions. Our research has failed to discover any court decisions bearing on the question. There are two opinions of our Texas Attorney General. The plaintiff contends that the first opinion reached by the Attorney General should be controlling. That opinion, Number WW-1489, dated December 6, 1962, holds that “ * * * paragraph (H) of Article 20.04, * * * exempts both the seller and purchaser or consumer from all the taxes imposed * * * when tangible personal property is sold pursuant to a written contract entered into prior to September 1, 1961, * * The opinion seems to support the plaintiff’s position. However, at the request of the State Comptroller the Attorney General reviewed the conclusions reached in Attorney General’s opinion No. WW-1489 and overruled such conclusions in opinion No. C-30, dated March 6, 1963, and held that the exemption provisions did not apply to a mere contract of sale of tangible personal property and only applied to a contract made by the purchaser to be used for the performance of a contract. This opinion is now being followed by the defendant.

Since there are no reported cases construing The Texas Limited Sales, Excise and Use Tax Act and the exemption provisions of paragraph (H), supra, we resort to the rules of statutory construction applicable to taxation statutes. Article 10, Vernon’s Annotated Civil Statutes, provides general rules for construing all civil statutory enactments. The Article provides that the provisions of statutes shall be liberally construed with a view to effect their objects. The courts necessarily look diligently for the intention of the Legislature as the intention of the Legislature is the dominant consideration in construing a statute. See State v. Dyer, 145 Tex. 586, 200 S.W.2d 813 (1947); McInery v. City of Galveston, 58 Tex. 334 (1883); City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273 (1951). In Edwards v. Morton, 92 Tex. 152, 153, 46 S.W. 792, 793 (1898), where the strict letter of a statute was not followed, the Court said:

“The intention of the legislature in enacting a law is the law itself, and must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the letter of a statute when it leads away from the true intent and purpose of the legislature, and to conclusions inconsistent with the general purpose of the act. * * * ”

The Edwards case was quoted with approval in State v. Dyer, supra. This Court announced the same rule in City of Mason v. West Texas Utilities Company, supra, and this latter case announced and reaffirmed the well-settled rule that the intention of the Legislature should be ascertained from the entire act and not from isolated portions thereof. In the case of Texas & N. O. R. Co. v. Railroad Commission, 145 Tex. 541, 200 S.W.2d 626, 629 (1947), this Court in construing the legislative act involved in that case, said that “ * * * whenever the legislative purpose is ascertained, the significance of words used may be restricted or enlarged in order to effectuate that purpose and to give the act the meaning which the lawmakers manifestly intended. * * * ” Where the intent is apparent from the words of the statute as is undoubtedly the case with regard to the words of paragraph (H), supra, it is not necessary for this Court to make an analysis of the extrinsic evidence of legislative intent.

By applying these rules of statutory construction and by giving effect to each sentence, clause, phrase and word of ex-eruption (H), the conclusion is inescapable that while the exemption statute does not specifically state who is to use the property to perform a prior written contract in order to secure an exemption, it is clear that it is the use after the contract of sale has been completed; and, therefore, the property must be used by the purchaser to fulfill a previously executed contract. Mere performance of a contract of sale by delivery of this property by the seller to the purchaser is not sufficient. The exemption statute provides that the “receipts from the sale” are exempt when the sold property is used “ * * * for the performance of a written contract entered into before the effective date of the act.” The statute also provides that the purchaser, not the seller, must execute the exemption certificate called for in the statute. This for the reason that it is the purchaser who must use the personal property in fulfillment of a contract to which he is bound. It should be noted that the second paragraph of Article 20.04, as originally enacted in 1961, provides that “* * * [i]f a purchaser certifies in writing to a seller that the tangible personal property purchased will he used in a manner or for a purpose entitling the seller to regard the receipts from the sale as exempted by this Chapter from the computation of the amount of the limited sales tax, and if the purchaser then uses the tangible personal property in some other manner or for some other purpose, the purchaser shall be liable for payment of the limited sales tax * * [Emphasis added.] The plaintiff, apparently recognizing that it as purchaser must execute the certificate and that it must use the property “ * * * in a manner or for a purpose * * *,” actually executed an exemption certificate in which it stated that “* * * [t]he reason the said purchaser is claiming this exemption is that Paragraph (H) of Article 20.04 of said Chapter exempts from tax tangible personal property used for the performance of a written contract entered into prior to the effective date of the Act.” Article 20.04(H) further provides that the taxpayer (purchaser) is to give the State Comptroller notice of the contract in order to secure the exemption.

We are constrained to hold that under the plain terms of the Act the plaintiff was liable to pay to IBM the tax involved in this suit. Plaintiff was the purchaser. It is clear that the exemption statute means that the written contract therein referred to must be one between the purchaser and a third party and not between the seller and the purchaser. While plaintiff’s certificate does not state who was to use the property in the performance of a written contract, the plaintiff in its affidavit in support of its motion for summary judgment makes it clear that IBM, the seller, only used the property. The exemption certificate was issued after the three IBM machines were installed on November 16, 1961. Evidently, upon delivery and installation thereof, IBM no longer had any power or authority to use the machines. The written contract between IBM and the plaintiff provides that IBM was to install the machines and notify the plaintiff when they were ready for use. Since the record clearly shows that the plaintiff did not use the machines for the performance of a contract entered into with a third party prior to September 1, 1961, the effective date of the Act, the plaintiff’s claim for a refund of the taxes paid under protest must fail. Since the defendant has presented a summary judgment record clearly showing that plaintiff’s pleadings do not disclose the use to which the machines were going to be used as required by Article 20.04(H), supra; that the plaintiff’s motion for summary judgment and affidavits in support thereof clearly show the machines were only used by IBM to complete the sale to plaintiff and, since the stipulation entered into by the parties upon the trial of this case shows that plaintiff was only to use “ * * * said computer machines in its accounting procedures in the conduct of its business * * the plaintiff’s motion for summary judgment should have been denied and that of the defendant should have been granted.

Accordingly, we reverse the judgments of both the trial court and the Court of Civil Appeals and judgment is now rendered that the plaintiff take nothing by its suit, and that the defendant recover from the plaintiff all costs expended.

GRIFFIN, WALKER and POPE, JJ., dissenting.

POPE, Justice

(dissenting).

The majority has overworked the word “used”, as employed by Article 20.04 V.T. C.S., and has achieved a very complex meaning from a simple sentence. The Legislature, as would be expected when it enacted a new law, stated the time that certain transactions would fall within and be taxable under the statute. It did this by stating in Article 20.04 V.T.C.S., that two kinds of transactions would be exempt.

“Article 20.04(H): Written Contracts And Bids Executed Prior To The Effective Date of This Chapter. There are exempted from the taxes imposed by this Chapter the receipts from the sale, use or rental of, and the storage, use or other consumption in this State of, tangible personal property (i) used for the performance of a written contract entered into prior to the effective date of this Chapter or (ii) pursuant to the obligation of a bid or bids submitted prior to the effective date of this Chapter which bid or bids could not be altered or withdrawn on or after that date and which bid or bids and contract entered into pursuant thereto are at a fixed price not subject to change or modification by reason of a tax imposed by this Chapter.
“Provided, however, that notice of such contract or bid by reason of which an exclusion is claimed under this paragraph (H) must be given by the taxpayer to the Comptroller on or before the lapse of one hundred and twenty (120) days from the date of passage of this Chapter.”

Even without such a provision, there would be a question whether a transaction that antedated September 1, 1961, the effective date of the new law, would fall within the taxing provisions. To avoid such a question, the quoted statute exempted.

“ * * * the receipts from the sale * * * 0f * * * personal property (i) used for the performance of a written contract entered into prior to the effective date of this Chapter * * *.”

There were receipts from the sale by IBM to British-American. The receipts came from the sale of personal property, three IBM machines. The machines were used for the performance of the written contract. The contract was in writing. It was made before the effective date of the law. Under the ordinary understanding of these words, the transaction was exempt from the tax. “When we abandon the plain meaning of words, statutory construction rests upon insecure and obscure foundations at best.” State Board of Insurance v. Betts, 158 Tex. 612, 315 S.W.2d 279, 281 (1958).

This ordinary meaning is confused by two errors. The first arises from the unnecessary mixing of the meaning of the two exemption provisions in Article 20.04. The article mentions two kinds of transactions which are exempt, but they are not the same kind of transactions except that both must occur prior to the effective date of the new tax. The word “or” separates them. In fact it appears that the two exemptions follow in logical sequence. The first exemption concerns a first or original sale and the other concerns even second sales provided a bid was made prior to the effective date of the law. The article means that, applied to this case, the written contract between IBM and British-American evidenced the first sale and was exempt. It means that even a second sale would also have been exempt, if British-American had, prior to the effective date of the law, made a bid to furnish the same machines to a third person. The majority has held that in such a situation, the first sale would be taxable but the second one would be exempt. I find it difficult to understand the legislative purpose for taxing the first sale, but exempting a second sale, though both were made before the effective date of the law.

The other error arises when we unnecessarily import the meaning of the carefully and artfully defined word, “use,” into provisions which employ the ordinary word, “used.” “Use” is defined as follows:

“Article 20.01 (R). Use. ‘Use’ includes the exercise of any right or power over tangible personal property incident to the ownership of that tangible personal property except that it does not include the sale of that tangible personal property in the regular course of business.”

“Used” is not defined. It appears some twenty times in the statutes and, in context, does not have a statutorily defined meaning. It means employed. It is impossible to adopt the statutory definition of “use,” give it a past-tense meaning, and come out with a sensible meaning of “used.” It makes sense to speak of a “use tax”; but not of a “used tax.” The awkward results we would reach by incorporating the statutorily defined “use” into provisions of the same article that employ the word “used” is seen when we try to do so with such provisions as:

“Art. 20.04. ‘Exempted from taxes imposed by this Chapter,’ as used herein, means exempted from the computation of the amount of the taxes imposed.” (Emphasis added).
“Art. 20.03(B). ‘Retailer engaged in business in this State’ as used in this Section (B) and the preceding Section (A) means annd includes any of the following: * * (Emphasis added).
“Art. 20.04(C) (3). As used in this Article, the term ‘returnable containers’ means containers of a kind customarily returned by the buyer of the contents for re-use.” (Emphasis added).

The majority reasons that Article 20.04 (H) contemplated a sale by the original purchaser to a third person because the article exempted “the receipts from the sale * * It argues that this means that the original purchaser must be the one who obtains “receipts” from a sale. This is not supported by the Limited Sales Tax law. The tax in all instances is on the receipts of the seller though it is paid by the purchaser. Article 20.01(D) provides:

“ ‘Receipts’ means the total amount of the sale or lease or rental price, as the case may be, of the retail sales of retailers, valued in money, whether received in money or otherwise, without any deduction on account of any of the following * *

Article 20.02 provides:

“There is hereby imposed a limited sales tax at the rate of two per cent (2%) on the receipts from the sale at retail of all tangible personal property within this State.”

Article 20.021(A), provides:

“Every retailer shall add the sales tax imposed by Article 20.02 of this Chapter to his sale price and when added the tax shall constitute a part of the price, shall be a debt of the purchaser to the retailer until paid, and shall be recoverable at law in the same manner as the purchase price.”

The majority opinion also reasons that the IBM machines which were the subject of the sale were used by IBM, the seller, but not by the buyer. It occurs to me that the subject matter of a sale is used by both the seller and buyer to consummate the sale. Bristish-American, as purchaser used it “for the performance of a written contract” no less than did the seller. The purchaser was obligated by his written contract to accept the subject matter of the contract no less than the seller was to deliver it. The same subject matter was essential both to the performance of seller’s and the purchaser’s obligations. SO Tex. Jur.2d Sales, Sec. 1.

In my opinion the transaction occurred before the effective date of the new law and was within the exemption. I would affirm the judgments of the courts below.

GRIFFIN and WALKER, JJ., join in this dissent.

GREENHILL, J., joins in this dissent on motion for rehearing.

      . Art. 20.04 “(H) Written Contracts and Bids Executed Prior to the Effective Date of this Chapter. There are exempted from the taxes imposed by this Chapter the receipts from the sale, use or rental of, and the storage, use or other consumption in this State of, tangible personal property (i) used for the performance of a written contract entered into prior to September 1, 1961, or (ii) pursuant to the obligation of a bid or bids submitted prior to September 1, 1961, which bid or bids could not be altered or withdrawn on or after that date and which bid or bids and contract entered into pursuant thereto are at a fixed price not subject to change or modification by reason of a tax imposed by this Chapter. The exemption provided by this Section shall have no effect on the receipts from the sale, use or rental of, and the storage, use or other consumption of tangible personal property in this State after August 31, 1964, and the same will be taxable if it is not otherwise exempt.
      “Provided, however, that notice of such contract or bid by reason of which an exclusion is claimed under this Section (H) must be given by the taxpayer to the Comptroller on or before the lapse of one hundred and twenty (120) days from August 16, 1961.”


author: PER CURIAM.

text:
    ALLIED FINANCE COMPANY OF BAY CITY et al., Petitioners, v. J. M. FALKNER, Banking Commissioner et al., Respondents.
    No. A-11098.
    Supreme Court of Texas.
    Dec. 31, 1965.
    Rehearing Denied Jan. 26, 1966.
    Locke, Purnell, Boren, Laney & Neely, J. L. Shook, Dallas, for petitioners.
    Waggoner Carr, Atty. Gen., Austin, Ralph R. Rash, Asst. Atty. Gen., for respondents.
   PER CURIAM.

The opinion of the Court of Civil Appeals is reported in 394 S.W.2d 208. The application for writ of error filed by the Allied Finance Companies doing business in Louisiana (Lake Charles, Lafayette, Shreveport and Baton Rouge) is dismissed for want of jurisdiction. The application for writ of error filed by Allied Finance Company of Bay City and the other Allied Finance Companies doing business in Texas is refused, no reversible error.

We approve the holding of the Court of Civil Appeals that the portion of Section 29 of the Texas Regulatory Loan Act of 1963, Acts 1963, 58th Leg., Reg. Sess. ch. 205, p. 550, Article 6165b, Vernon’s Ann.Tex.Stats., which provides that the provisions of chapter 165, Acts of the 42nd Legislature, Regular Session, 1931, as amended, compiled as Article 1524a, Vernon’s Annotated Civil Statutes of Texas, shall not apply to a licensee under the Texas Regulatory Loan Act of 1963, is void and unenforceable because of a Legislative failure to comply with requirements of Article 3, Section 35 of the Constitution of Texas, Vernon’s Ann.St.

We also approve of the action of the Court of Civil Appeals in construing Art. 1524a and the Texas Regulatory Loan Act as if the restrictive application of Art. 1524a as stated in the Title of the Regulatory Loan Act had been incorporated into the body of the Act for the reason that the Regulatory Loan Act, being a later expression of the Legislative will, would constitute an implied repeal of previous laws which were inconsistent with it.


author: McDONALD, Presiding Judge.

text:
    Rudy H. GARZA, Appellant, v. The STATE of Texas, Appellee.
    No. 38722.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1965.
    Rehearing Denied Jan. 26, 1966.

      Clyde W. Woody, Houston (On appeal only), Fred H. Dailey, Jr., Houston (On appeal only), John P. Farra, Houston (On appeal only), for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and James I. Smith, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is robbery by assault; the punishment, 30 years confinement in the state penitentiary.

The evidence reveals that shortly before noon on July 22, 1960, two men entered the Salazar Grocery Store in Houston, Texas, wearing stockings over their faces and carrying pistols. After both men had ordered Mrs. Salazar, the owner of the store, to put her hands up, the smaller of the two directed his companion, later identified as appellant, to go to the cash register. When Mrs. Salazar began screaming, the smaller man struck her and pushed her to the floor. There he sat on her, holding her hands, and continued to strike her upon her head with his fists and the pistol, while appellant removed about $50 from the cash register. Both men then fled from the store to an old-model black Chevrolet, where a companion waited at the wheel, and sped away.

Mrs. Salazar was taken to the emergency room of Parkview Hospital to be treated for the injuries she had sustained, and it was at the hospital that she first informed investigating officers that appellant participated in the robbery.

Appellant was taken into custody at about 10:30 p. m. on July 23, 1960, the day after the robbery occurred, and was taken to the police station. At about 11 p. m. appellant was placed in a “show-up” and was positively identified by Mrs. Salazar. The record shows that Mrs. Salazar had known appellant most of his life. He was five feet six inches tall and weighed about 250 pounds, and was known as “Blimp.” He lived in the neighborhood near the grocery all his life, had cashed checks there, borrowed money from Mrs. Salazar, and passed by the store frequently.

After this “show-up”, appellant was taken to the robbery division of the police department where he was questioned by officers until about 2:00 a. m. on July 24. By that time, appellant had supplied the officers with the names of his two confederates and, not knowing their addresses, agreed to guide the police to their homes. From a police car, appellant pointed out where each of his companions lived, and they were picked up by other officers in other automobiles. Appellant was returned to the police station by 4 a. m., and talked to his attorney at that time. At about 5:30 a. m., appellant agreed to make a statement, and did so after receiving the proper warning. In the statement, signed at 6:15 a. m. on July 24, appellant admitted that he had participated in the robbery, and that he was the one who had taken the money from the cash register.

The evidence amply supports the jury’s verdict. There are no formal bills of exception, but appellant urges reversal of his conviction by several informal bills. He contends that error was committed when the trial court allowed part of appellant’s confession to be introduced into evidence by the state, because he contends the statement was given involuntarily. At the time the confession was sought to be introduced, a hearing was held out of the presence of the jury, and after hearing evidence as to the voluntariness of the confession and the circumstances under which that statement was made, the trial judge overruled appellant’s objection to the admissibility of the statement. In the court’s charge, the members of the jury were instructed that if they had a reasonable doubt as to whether or not the statement was given voluntarily, they would not consider the statement for any purpose. We find no merit to appellant’s contention.

Appellant further argues in his brief filed with this court that the confession was inadmissible because it was the fruit of an illegal arrest and detention. We need not pass upon the legality of appellant’s arrest. It is the illegal detention and not an illegal arrest which, under certain circumstances, will vitiate a confession. Benitez v. State, Tex.Cr.App., 377 S.W.2d 651, and cases cited therein. When appellant was taken into custody, he was taken directly to the “show-up” where he was identified as one of the perpetrators of the crime. His detention, under the circumstances shown, was not such as to vitiate the confession.

Regardless of the circumstances under which the confession was obtained, however, the record reveals that it was introduced into evidence, in its entirety, by appellant as Defense Exhibit No. 2 while appellant was testifying in his own behalf. Appellant is in no position to complain of evidence he himself developed. Campbell v. State, Tex.Cr.App., 373 S.W.2d 749; Turner v. State, Tex.Cr.App., 371 S.W.2d 891; Ervin v. State, Tex.Cr.App., 367 S.W.2d 680.

We are mindful of the fact that when improper evidence has been introduced by the prosecution, it is not always cured by an accused offering similar evidence to counter-act the improper evidence. Autry v. State, 159 Tex.Cr.R. 419, 264 S.W.2d 735; McDuff v. State, 103 Tex.Cr.R. 668, 281 S.W. 1073. But appellant cannot introduce the same statement he claims to be inadmissible, use exculpatory parts of that statement as an affirmative element of his trial strategy, then when that evidence fails to convince the jury of appellant’s innocence, re-assert his claim that the evidence should not have been admitted in the first place. See Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408.

Appellant further complains of the action of the trial court in restricting appellant’s direct examination of two witnesses for the defense. Objections were sustained when each of these witnesses was asked questions tending to show that co-indictee Robert Saldana could not have been at the scene of the robbery at the time that offense was committed. Appellant contends that testimony proving an alibi for appellant’s co-indictee is admissible for two purposes, one being to bolster appellant’s defensive theory of alibi, and the other being to impeach the testimony of the complaining witness Salazar by showing that she was wrong in her identification of Sal-dana, and thereby increasing the possibility that she might also be mistaken in her accusation of appellant. A careful search of the record reveals that Mrs. Salazar did not identify Robert Saldana as one of her assailants, but merely stated that he was approximately the same build and size as the shorter of the two men who committed the robbery. On the other hand, she positively identified appellant as one of the perpetrators of this crime. Proof of an alibi for Saldana would not impeach the credibility of Mrs. Salazar’s testimony, for she did not say he was one of the men who robbed her. Further, proof that Sal-dana was some place other than the scene of the offense when it was committed would not bolster appellant’s alibi defense because appellant did not contend that he was with Saldana but claimed that he was at work when the offense was committed. As the testimony was immaterial to any issue in the trial, the trial court committed no error in excluding this evidence.

We find no error in appellant’s informal bills of exception, and the judgment is therefore affirmed.


author: BELCHER, Commissioner.

text:
    Gus E. SHELTON, Appellant, v. The STATE of Texas, Appellee.
    No. 38635.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1965.
    Rehearing Denied Jan. 26, 1966.
    William D. Bonham, Houston (On Appeal), Donald L. Martin, Houston (On Appeal), S. John Odom, Houston (On Appeal), for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Allen Stilley and Jimmy James, Asst. Dist. Attys., Houston; and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder; the punishment, fifty years.

This cause was reversed for improper jury argument on a former appeal. Shelton v. State, Tex.Cr.App., 367 S.W.2d 867.

It is undisputed that about 12:55 A.M. on April 21, 1962, the deceased was shot through the heart with a .22 rifle which was at the time in the hands of the appellant, and that said shot was the cause of her death. The appellant and deceased each had a lawful spouse from whom they were not divorced, but were separated; and the deceased had lived with the appellant since January, 1961, until her death, April 21, 1962.

The state’s witness Simmons, who lived next door to the appellant and deceased, testified that about 1 A.M., the appellant knocked on his door and stated that he had killed his “wife (referring to the deceased),” and asked him to call the police. The evidence reflects that the appellant was intoxicated.

The appellant testified that on removing a .22 rifle from a closet, he turned to pick up a scabbard to put it in and, “It just went off,” and shot the deceased who was sitting on a couch; and that he ran next door and asked his neighbor to call the police, and said, “Something bad happened at my house.”

Complaint is made of the admission of alleged statements of the appellant which were in the nature of a confession, but they did not comply with the provision of Art. 727a, Vernon’s Ann.C.C.P.

The complaint is directed to the question asked the appellant by the state: “Q. Mr. Shelton, isn’t it a fact that you told the police officers that night at the police station that you knew this was no accident and you had just lost your temper?,” and appellant replied, “No, sir, I didn’t.” Previously, and without objection, the appellant had testified on cross-examination that, “I told up there at the police station it was an accident.”

When the accused takes the stand as a witness he is subject to the same rules as any other witness; and the state is not confined in its cross-examination to matters elicited in chief. Robinson v. State, 163 Tex.Cr.R. 499, 293 S.W.2d 781.

It is insisted that the state reversibly erred during its cross-examination of appellant’s witness Garrison.

The appellant filed an application for a suspended sentence and the issue of its suspension was submitted to the jury. He called three witnesses, one of whom was Garrison, who testified on direct examination only that they knew appellant and the period of time they had worked with him which was from six to fourteen years. On cross-examination the state asked Garrison if he knew the general reputation of appellant as being peaceful and law-abiding, and if he had heard what his reputation was among the people with whom he worked, and asked for a “yes” or “no” answer. Garrison answered “yes,” but further stated that appellant’s reputation among those with whom he worked was good.

The state then asked Garrison if he had heard that appellant was convicted of aggravated assault on a woman in November of 1964, and he answered “no.” No objection was made to this question. While testifying, the appellant admitted that he had paid a fine in November 1964, after a conviction for aggravated assault on a woman. Next, Garrison was asked if he had heard that appellant was accused of maiming, which was not answered. Appellant’s attorney stated: “I object to that and move that it be stricken.” The “objection” was sustained and the jury instructed to disregard the question. Next the state asked Garrison if he had heard that the appellant was put under a peace bond, and no answer was given. The appellant’s attorney said, “objection” and moved for a mistrial which was overruled.

The appellant, by filing his application for a suspended sentence authorized the state to cross-examine his witnesses who had attested to his good reputation by asking if they had heard of acts of the accused inconsistent with that reputation. Clark v. State, 160 Tex.Cr.R. 32, 267 S.W.2d 147; Duhart v. State, 167 Tex.Cr.R. 150, 319 S.W.2d 109.

Under the record as presented and the applicable rule of evidence to reputation witnesses when a suspended sentence is sought, no error is presented.

Appellant contends that the trial court erred in admitting the testimony of Officer Chapman concerning the relative position of the appellant and the deceased because he was not qualified to so testify.

Officer Chapman testified that he had had twenty years of experience as an officer in the Homicide Division of the Houston Police Department, and had investigated numerous cases of homicide, and had many times been able to determine the paths of bullets and types of weapons used.

To support his contention the appellant relies upon his objection to the following testimony of Officer Chapman:

“Q (By Mr. James) Will you draw a line indicating where the evidence indicated to you the track of the bullet?
“A (By witness) Yes, sir. (Witness draws on the blackboard)
(The blackboard is not before us and there is no showing as to what it revealed.)
“Q How did it get to the baseboard there from approximately where it was fired ?
“A From this angle, within any of these three angles.
Mr. Haynie: We object to that testimony of it being fired from that angle. This witness wasn’t present.
i|i >{i ifc ;¡í
The Court: He can deducf from the physical facts he found.
Mr. Haynie: He can’t testify to anything but a conclusion.
The Court: That’s all an expert can testify to, his conclusion and opinion.
I overrule your objection.
Mr. Haynie: Note our exception, please.
“Q (By Mr. James) Did you find anything else out there that you took into evidence ?
“A (By witness) No, sir, that’s all I remember taking.”

The testimony complained of was not as to the position of the parties at the time of the shooting as the appellant contends, though together with other evidence it may have been relevant in determining such fact. It does not bear thereon to the extent as to , call for a reversal.

Error is urged in the overruling of appellant’s objection and motion for mistrial to the jury argument of the state that “the defendant decided you (deceased) no' longer have a right to live and I’ll see to it right now,” over his objection that it was not supported by the evidence and was un-sworn testimony. This argument was a reasonable deduction from the evidence and presents no error.

The other contentions presented have been considered and they do not reflect error.

The evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.


text:
    J. M. GUTTERY, Appellant, v. The STATE of Texas, Appellee.
    No. 38909.
    Court of Criminal Appeals of Texas.
    Jan. 12, 1966.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The conviction is for driving a motor vehicle upon a public highway while intoxicated; the punishment, a fine of $50 and three days in jail.

The record reveals that the term of court during which appellant was convicted began on May 3, 1965, and terminated on July 31, 1965. Having given notice of appeal, appellant filed an appeal bond on June 7, 1965.

An appeal bond entered into during the term of court at which notice of appeal is given does not comply with Article 830, Vernon’s Ann.C.C.P., and does not confer jurisdiction upon this Court to enter any order other than to dismiss the appeal. Deming v. State, 167 Tex.Cr.R. 592, 322 S.W.2d 543; McCombs v. State, 165 Tex.Cr.R. 401, 307 S.W.2d 954.

The appeal is dismissed.


author: BELCHER, Commissioner. DICE, Commissioner.

text:
    Isaac PARKER, Appellant, v. The STATE of Texas, Appellee.
    No. 38284.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1965.
    Rehearing Denied Dec. 15, 1965.
    Second Motion for Rehearing Denied Jan. 26, 1966.

      Engelke, Brown & Holbrook, by Don Brown, La Marque, for appellant.
    Jules Damiani, Jr., Dist. Atty., Ronald L. Wilson, Asst. Dist. Atty., Galveston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for driving while intoxicated; the punishment, seven (7) days in jail and a fine of $100.

The testimony of the state reveals that while the appellant was driving an automobile upon a public street about 8 P.M., he drove through a red traffic light at an intersection and along and near the curb striking a parked car in the parking lane with such force that it struck another parked car which also struck a car parked in front of it, and that a person in the second parked car was injured.

The testimony further reveals that the appellant’s eyes were glassy, his speech slurred, and that he was unsteady on his feet and staggered while walking, and he had the odor of alcohol on his breath. Four witnesses who observed the appellant at the scene expressed the opinion that he was intoxicated.

Testifying in his own behalf the appellant stated that when he applied the brakes as the traffic light changed, the car slid sideways and he could not regain control before it struck the parked cars; that he drank three beers before 6 P.M., but was not drunk at the time of the collision about 8:30 P.M. The testimony of appellant is corroborated by that of his brother and employer, and that of his wife who was riding in the car with him at the time of the collision.

The jury resolved the issue of intoxication against him and the evidence is sufficient to support the conviction.

Complaint is made of the trial court’s refusal of appellant’s motion to appoint a court reporter to attend the trial of this cause. A statement of facts in question and answer form on the merits accompanies the record. It is approved by counsel for appellant and the state and also the trial judge. From the record as presented no error appears.

The appellant next complains of the trial court’s refusal of his oral motion for an instructed verdict of not guilty, made at the close of the state’s case in chief, on the ground that he was denied the right to consult counsel, thereby denying him the opportunity to be examined by competent and disinterested persons as to whether he was intoxicated at the time of his arrest. The refusal of the motion was not error.

The arresting officer testified that the appellant was drunk when they arrived at the jail about 9 P.M., and that he then declined appellant’s request to use the telephone until he had “sobered up” which was about four hours later. The appellant was released on bond about 1 A.M., the following morning. He was represented by counsel upon and during the trial of the case.

No evidence was offered by the state of any statement made by the appellant after the collision, or that any body specimen was taken, requested or denied. There was no interrogation of the appellant after his arrest, and no need arose for the protection of his rights against self-incrimination.

By three formal bills of exception, the appellant insists that the state’s attorney erred in his argument to the jury as follows :

“ ‘Let’s look at the facts in the case. (Naming one witness in each bill) * * says that the Defendant was intoxicated. Mr. Brown here (pointing at Defense Counsel, Don Brown) says that the Defendant was sober.’ Such argument was made despite the fact that the Defense Counsel, Don Brown, had never stated at any time during the trial of the cause that Defendant was sober, nor had Defense Counsel stated words to that effect.”

Appellant claims that these three statements to the jury injected new facts in the case which were manifestly improper; that the court overruled his objection thereto and refused to instruct the jury not to consider them.

The record reflects that Don Brown represented the appellant during the trial, that appellant entered a plea of not guilty, that Brown cross-examined the state’s witnesses, and called four witnesses including the appellant, who testified that he was not intoxicated. From Brown’s position in the case, it is apparent that the argument complained of was a reasonable deduction from the evidence and is not of such nature as calls for a reversal.

By formal bill the appellant also urges reversal on the ground that the trial court refused his motion for a mistrial after the following argument by the state’s attorney :

“ ‘I’ve got him hurting; he’s hollering.’ Such argument was made immediately following Defense Counsel Don Brown’s objection, which was sustained by the Court, that argument by the said Ronald L. Wilson as to purported actions of Defendant’s wife at the scene of the accident injected a new fact into the case.”

The actions of the wife referred to in the bill are not shown. The objection thereto was sustained. No reversible error is perceived.

The other contentions presented have been carefully considered and they do not show error.

The judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant re-urges his contention that the court erred in refusing his motion for an instructed verdict on the ground that he was denied the right to consult with counsel. In support of such contention he cites Art. 1176, Vernon’s Ann.P.C., which makes it a penal offense for any officer having custody of a prisoner to unlawfully prevent such prisoner from consulting or communicating with counsel or from obtaining the advice or services of counsel in the protection or preservation of his legal rights.

While Art. 1, Sec. 10, of Vernon’s Constitution of Texas guarantees to an accused the right to counsel and Art. 1176, supra, makes it a penal offense for an officer to prevent him from consulting with counsel, a sheriff has the right to exercise discretion and caution in admitting attorneys to the jail to see their clients.

In Ellis v. State, 149 Tex.Cr.R. 583, 197 S.W.2d 351, it was held that the improper limitation of consultation with counsel on one occasion did not call for a reversal where the right of consultation was fairly accorded the accused before trial and there was no claim that by an unlimited consultation a defense or mitigating circumstance might have been presented.

We remain convinced that the action of the arresting officer in refusing appellant’s request to use the telephone at the jail until he had “sobered up” — which was about four hours later — does not present reversible error.

Error is urged to our holding in the case that the court did not err in overruling appellant’s motion to dismiss the prosecution for the failure of the state to grant him a speedy trial.

Recently, in Dagley v. State, Tex.Cr.App., 394 S.W.2d 179, it was held that a plea to the jurisdiction on the ground that an accused has been deprived of his constitutional right to a speedy trial is not one authorized by law. In the opinion it was also pointed out that if an accused desires an earlier trial it is incumbent upon him to request or demand the same, and, if refused, to file a petition for writ of mandamus. State ex rel. Moreau v. Bond, 114 Tex. 468, 271 S.W. 379; Goss v. State, 161 Tex.Cr.R. 37, 274 S.W.2d 697; White v. State, 166 Tex.Cr.R. 267, 312 S.W.2d 639; Ex parte Ortega, Tex.Cr.App., 372 S.W.2d 695.

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.


author: WOODLEY, Judge. McDonald, Presiding Judge

text:
    Bill JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 38588.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1965.
    Rehearing Denied Jan. 26, 1966.
    Charles B. Smallwood, Beaumont, for appellant.
    W. C. Lindsey, Dist. Atty., John R. De-Witt, Asst. Dist. Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is felony theft; the punishment, enhanced by a prior conviction for a like offense, 10 years.

The indictment alleged that appellant took $84.00 current money of the United States from the possession of C. A. Per-ricone without his consent.

Detectives C. A. Perricone and E. T. Carter, of the Beaumont Police Department, were assigned to investigate complaints. concerning a termite extermination business operated by appellant.

Acting together, they had two other extermination companies inspect the home of Perricone, both of whom concluded that the house had no active termites.

They then arranged with appellant to make an inspection of the house and set up tape recording equipment to record the conversation between Perricone and appellant.

After inspecting the house, appellant reported that in digging under a sill termites fell all over the ground, and that his charge for an extermination job would be $84.00.

Perricone told appellant he would advise him later if he decided to have the job done.

Later in the day Perricone had another exterminating company inspect the house, and they advised that it had no termites.

About 9 o’clock the next morning Per-ricone got in touch with appellant and arranged for him to do the extermination job at 1 P.M. Carter and Perricone then contacted the District Attorney’s office and were advised to go ahead and file charges and get everything set up, and they did so and secured a warrant for appellant’s arrest.

Appellant came to the house and completed the extermination job. Carter, who had recorded the first conversation between appellant and Perricone, was in the living room.

When appellant completed the job, Carter accompanied his fellow officer outside. Appellant then wrote a guarantee and Per-ricone gave him $84.00 in marked money belonging to the City of Beaumont. Detective Carter than approached appellant, identified himself as a police officer, showed him the warrant, told him he was under arrest and took the $84.00 out of appellant’s shirt pocket.

Detective Carter testified in part:

“Q. As I understand now, you were sitting up there in the house while he (appellant) was out there actually doing the job with your warrant ready to grab him as soon as he got out?
“A. Yes, sir.”

The evidence shows no taking of the $84.00 without the consent of Perricone, hence the state could not rely upon Art. 1410, Vernon’s Ann.P.C. defining ordinary theft.

The state relied upon Art. 1413 P.C. relating to theft by false pretext which reads:

“The taking must be wrongful, so that if the property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft, but if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete.”

The evidence clearly shows that appellant did not obtain possession of the $84.00 by any false pretext or representation relied upon by Perricone.

The state relies upon the second portion of Art. 1413 P.C. which provides that if the taking, though originally lawful, was obtained “with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete.”

Windham v. State, 169 Tex.Cr.R. 451, 335 S.W.2d 219, and Clay v. State, 171 Tex.Cr.R. 151, 346 S.W.2d 128, are cited as cases in point.

These cases recognize the rule that in order to obtain a conviction for theft under Art. 1413 V.A.P.C. where there is no reliance on any false pretext the state must prove beyond a reasonable doubt not only that the accused obtained possession of the property with intent at the time to deprive the owner of the value thereof and appropriate it to his own benefit, but must further prove beyond a reasonable doubt that he thereafter did so appropriate it.

The evidence is not sufficient to sustain a finding that appellant appropriated the $84.00 to his own benefit after obtaining possession thereof.

Detectives Perricone and Carter were acting together. The money was furnished by the City. The fact that one of the officers gave appellant the money and the other took it out of his pocket and served the warrant would no more show a conversion of the money by appellant to his own use than would have been shown had the same officer given and immediately taken the money from him.

Appellant had committed no offense at the time the city detectives filed complaint against him and obtained a warrant for his arrest, and no offense was complete when they served the warrant and took from him the money they had just given him pursuant to their plan.

Appellant’s temporary possession of the money did not show appropriation of it to his own use.

The judgment is reversed and the cause is remanded.

McDonald, Presiding Judge

(concurring) .

I concur with the majority in the reversal of this case. However, I feel that appellant’s temporary possession of the money was sufficient to show the appropriation of it to his own use. I think that the appropriation was complete when the $84.00 changed hands, and the appellant stuck the money in his shirt pocket.

The majority opinion correctly points out “that appellant did not obtain possession of the $84.00 by any false pretext or representation relied upon by Perricone.” This, I think, is the crux of the case, and the sole reason upon which I join in the reversal of this cause. In McCain v. State, 143 Tex.Cr.R. 521, 158 S.W.2d 796, Presiding Judge Hawkins said:

“The State could not rely upon the false pretext used by appellant that he was a United States Marshal in pursuit of a murderer because Mrs. Lee did not believe such to be true, and therefore, was not induced by such false pretexts to deliver the horse to appellant.”

Mr. Perricone did not believe appellant, and he was not induced by such false pretext to deliver the money to him.

For the reason given, I concur in the reversal of this judgment.


author: DICE, Commissioner. McDONALD, Presiding Judge.

text:
    Abbie Raymond WELDON, Appellant, v. The STATE of Texas, Appellee.
    No. 38760.
    Court of Criminal Appeals of Texas.
    Dec. 1, 1965.
    On Motion to Re-Instate Appeal Jan. 12, 1966.

      Louis Dugas, Jr., Orange, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for driving while intoxicated; the punishment, three days in jail and a fine of $50.

The caption found in the transcript fails to show the date of adjournment of the trial court.

For such reason, the appeal must he dismissed for want of jurisdiction. Holder v. State, 113 Tex.Cr.R. 81, 18 S.W.2d 661; Thompson v. State, Tex.Cr.App., 236 S.W.2d 619.

The appeal is dismissed.

Appellant is granted fifteen days from this date to perfect the record.

OPINION ON MOTION TO REINSTATE APPEAL

McDONALD, Presiding Judge.

By supplemental transcript, the defect in the caption has been corrected, and the record is properly before this Court for review. The appeal is re-instated.

The evidence, as revealed in the narrative statement of facts, consists of testimony by three police officers and by appellant. One police officer testified that his attention was attracted when he noticed a step-van truck make an improper turn, and by the fact that he observed no license plate on this truck. While following the vehicle he noticed that it was driven erratically. The officer then stopped the truck and identified its driver, but the statement of facts does not reveal who the driver was, or that appellant was in the vehicle.

It is uncontradicted that appellant had been drinking beer, and his conduct and demeanor tended to show that he was intoxicated when arrested near the truck. There is no evidence showing that appellant was driving a motor vehicle, however, and the evidence is therefore insufficient to sustain appellant’s conviction for driving while intoxicated. Article 802, Vernon’s Ann. P.C.; Brewster v. State, 154 Tex.Cr.R. 177, 226 S.W.2d 124; Snider v. State, 145 Tex.Cr.R. 59, 165 S.W.2d 904.

The judgment is reversed.


author: WOODLEY, Judge.

text:
    John E. O’BRYAN, Appellant, v. The STATE of Texas, Appellee.
    No. 38735.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1965.
    Rehearing Denied Jan. 26, 1966.

      Robert C. Ferguson, Floyd H. Richards, Dalhart, William A. Dyess, Stratford, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is forgery; the punishment, 2 years.

The first count of the indictment alleged the forgery of a check drawn on First National Bank in Dalhart, dated November 5, 1960, payable to the order of E. P. Riggs in the sum of $44.50, signed Art M. Miller and endorsed E. P. Riggs.

The state’s evidence was that appellant presented the check to Jerry Malone, operator of a Gulf Service Station in Dalhart, on or about November 5, 1960, in payment for repairs on an automobile and cash; that appellant identified himself as E. P. Riggs and endorsed that name on the check in the presence of Jerry Malone at the Service Station.

The check was introduced in evidence and testimony was introduced to show that it was presented to the bank on which it was drawn and was not paid because the bank had no account in the name of Art M. Miller.

The cashier of the bank testified that he knew no person named Art M. Miller. The sheriff and a deputy sheriff of Dallam County testified that they did not find a trace of a person by the name of E. P. Riggs or Art M. Miller in the county or the area.

The evidence is sufficient to sustain the jury’s verdict finding appellant guilty of forgery of the check.

The indictment was returned January 4, 1961. The offense was alleged to have been committed and the evidence shows it was committed on or about November 5, 1960. The case was tried on May 4, 1965.

Appellant’s court appointed counsel on appeal present several grounds for reversal.

Bill of Exception No. 1 complains of the action of the court in placing him on trial while he was on parole from a federal penal institution.

The record discloses that this claim was advanced by the appellant himself upon authority of Grant v. Guernsey, 10 Cir., 63 F.2d 163. Grant has been overruled by the circuit deciding it in Stewart v. U. S., 10 Cir., 267 F.2d 378, cert. denied sub nom. Merriman v. Stewart, 361 U.S. 844, 80 S. Ct. 97, 4 L.Ed.2d 83. Other circuits have refused to follow the Grant case. United States ex rel. Brewer v. Maroney, 3 Cir., 315 F.2d 687; Knupnick v. U. S., 8 Cir., 286 F.2d 45; Strand v. Schmittroth, 9 Cir., 251 F.2d 590; United States ex rel. Pasela v. Fenno, 2 Cir., 167 F.2d 593, cert. Dism’d, 335 U.S. 806, 69 S.Ct. 29, 93 L.Ed.2d 363.

We note further that the “certificate of mandatory release” of the appellant “as if on parole” provides in part that such certificate will not “prevent delivery of said person to authorities of any state otherwise entitled to custody.”

The bill further complains of the action of the court in refusing to bring him to trial at the time he petitioned such court to do so, but bringing him to trial some three years later. Goss v. State, 161 Tex.Cr.R. 37, 274 S.W.2d 697, is authority against this claim of error. See also 1 Branch, 2d Ed., p. 615, Sec. 648; Ex Parte Ortega, Tex.Cr.App., 372 S.W.2d 695; White v. State, 166 Tex.Cr.R. 267, 312 S.W.2d 639.

The court’s qualification to appellant’s bill of exception relating to the failure .of the trial court to appoint counsel to defend him certifies that William A. Dyess, who represented him at the trial, was appointed by the court a month or more before the date of trial to represent the defendant.

As qualified the bill shows no error.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Gilbert MALDONADO, Appellant, v. The STATE of Texas, Appellee.
    No. 38636.
    Court of Criminal Appeals of Texas.
    Dec. 1, 1965.
    Rehearing Denied Jan. 26, 1966.
    Leo N. Duran (On Appeal Only), Corpus Christi, F. I. Gandy, Jr. (On Appeal Only), Corpus Christi, for appellant.
    Sam L. Jones, Jr., Dist. Atty., Douglas Tinker, Asst. Dist. Atty., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is burglary with a prior conviction for an offense of the same nature alleged for enhancement; the punishment, 12 years.

The witness Cortez testified that she was the caretaker of a complex of apartments, that on the night in question she observed an automobile drive into the complex and park before an apartment whose occupants had no automobile and that she observed a man leave on foot and return and drive away. She stated that in a short while the same automobile returned and parked in the same place, that two men walked away and that she took the license number and called the police. Still later, the men returned to the automobile carrying paper sacks under their arms and drove away.

On cross examination in answer to appellant’s counsel’s questions, she stated that she had identified appellant at a police lineup as being one of the two men.

The apartment complex was shown by other testimony to be less than a city block from the Morris Discount House which was shown to have been broken into that night.

Officer Harris testified that he went on duty at 11:00 p. m. on the night in question, that he went to the apartment complex, talked to Mrs. Cortez, and there found a black and white Mercury parked and unoccupied, that he and his fellow officer were called away from the complex to quell a disturbance and that when they returned the Mercury was gone. He stated that when he came on duty the next night he was alerted to be on the lookout for this particular Mercury, the license number of which he had taken the night before, and that he found it parked in front of the Avenue Cafe. He entered the cafe, found appellant in an intoxicated condition and placed him under arrest. After he had placed appellant in the patrol car he “told him (appellant) I wanted to search it (the black and white Mercury) while he was there * * * and he gave me the keys.” Inside the trunk of the Mercury Officer Harris found merchandise which was identified as having come from the Morris Discount House.

Appellant did not testify or offer any evidence in his own behalf. The prior conviction was stipulated in the absence of the jury.

The sole question presented for review is the legality of the search of appellant’s automobile. Officer Gomez testified that he had seen appellant driving the Mercury on occasions prior to the night in question. Officer Harris testified that he asked appellant if the Mercury was his and received an affirmative reply. Detective Fontaine testified in answer to appellant’s counsel’s questions that the police force had been alerted and informed that he wanted to speak to the occupants of the Mercury about the burglary, but that it had not been found prior to the time Officer Harris discovered it. While it is true that Officer Harris testified that he arrested appellant for being drunk and on no other grounds, we do find from the other evidence mentioned that the Mercury in question was the subject of a police search involving the burglary in question and that when Harris told appellant that he wanted to search the same while he was there appellant surrendered the keys voluntarily. This Court has consistently held that searches without warrant are permissible when executed with the owner’s consent. Shawhart v. State, 163 Tex.Cr.R. 199, 289 S.W.2d 601, and Cameron v. State, 171 Tex.Cr.R. 224, 346 S.W.2d 845. The cases relied upon by appellant do not involve the element of consent which is present and uncontroverted in the case at bar.

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


text:
    Carl Kelly GIACONA, Appellant, v. The STATE of Texas, Appellee.
    No. 38756.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1965.
    Rehearing Denied Jan. 26, 1966.

      Jack P. Kelso, Leo N. Duran, Corpus Christi, for appellant.
    Sam L. Jones; Jr., Dist. Atty., W. De-Witt Alsup, Asst. Dist. Atty., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the possession of marihuana with two prior convictions alleged for enhancement. The court in accordance with Art. 63, Vernon’s Ann.P.C., sentenced the appellant to life imprisonment.

After officers Broughton and Jackson of the Corpus Christi Police Department had kept the appellant under surveillance for several hours they were joined by custom agents Milley and Galanos. About 1:30 A.M., these officers observed the appellant and his car in a service station. While officers Broughton and Milley were observing the appellant from their location near the service station, the appellant drove from the station at a high rate of speed, and they started in pursuit of him. The appellant was travelling at 70 miles per hour in a 45 mile zone at the time he was stopped by Broughton and Milley and then Jackson and Galanos parked at the rear of appellant’s car. When the appellant had stopped, officers Broughton and Mil-ley identified themselves as officers, and asked the appellant, who was alone in the car, to get out and he did. At the time officer Milley told the appellant that they would like to search his car and he shrugged his shoulders and said, “Go ahead.” Upon a search of the car, the officers found two packages between the grill and the radiator; and each package contained approximately one pound of a plant substance which was marihuana.

A chemist for the Texas Department of Public Safety testified that he made an analysis of the contents of the two packages and that the plant substance contained in them was marihuana.

Proof was offered of the two prior convictions as alleged and of appellant’s identity as being the same person so convicted. This proof was made in accordance with that approved by this court in Broussard v. State, Tex.Cr.App., 363 S.W.2d 143. Robins v. State, Tex.Cr.App., 387 S.W.2d 62.

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

It is insisted that the search of appellant’s automobile was illegal, and that the trial court erred in admitting the testimony showing the search and the results thereof.

Officer Broughton testified as follows concerning the search of appellant’s automobile :

“A I stopped the vehicle, I approached the driver’s side of the car, identified myself and Officer Milley also identified himself as a Federal officer, I asked the Defendant to get out of his car which he did. I asked him if he knew the speed limit and I asked him for his driver’s license. Officer Milley asked, told him that we would like to search his car and he shrugged his shoulders and said, ‘Go ahead.’
“Q All right, sir, and is that when you made the search of the vehicle?
“A Yes, sir, it is. ******
“A The man was placed under arrest and was told that we would like to search his car. He said, ‘Go ahead,’ he give us his permission to search his car.”

Having consented to the search of his automobile, the appellant waived the necessity of a search warrant or a showing of probable cause for the search and is in no position to complain of the search. Merwin v. State, 172 Tex.Cr.R. 244, 355 S.W.2d 721. Cert. denied, 371 U.S. 913, 83 S.Ct. 259, 9 L.Ed.2d 172.

It is contended that the trial court erred in refusing his motion for a separate trial on the primary offense on the ground that the proof of the prior convictions alleged for enhancement was calculated to injure his rights before the jury.

This contention has been previously considered and rejected by this court. Crocker v. State, Tex.Cr.App., 385 S.W.2d 392; Capuchino v. State, Tex.Cr.App., 389 S.W.2d 296; Beasley v. State, Tex.Cr.App., 389 S.W.2d 299; Matula v. State, Tex.Cr.App., 390 S.W.2d 263; Conley v. State, Tex.Cr.App., 390 S.W.2d 276.

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

Opinion approved by the Court.


text:
    Alan Charles WILES, Appellant, v. The STATE of Texas, Appellee.
    No. 38852.
    Court of Criminal Appeals of Texas.
    Jan. 12, 1966.

      Rex Emerson, Houston, Court Appointed Attorney on Appeal Only, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Charles E. Bonney and Jimmy R. James, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is robbery; the punishment, enhanced under Art. 62 P.C., life.

Sentence was pronounced and notice of appeal given on May 28,1965.

The evidence, including the testimony of the victims, appellant’s oral confession and his testimony at the trial, shows that appellant, after having disarmed an officer, went into a drive-in Theater where Elmer Brooks, the person alleged to have been robbed, and Ida Lanell Pittman were sitting in Brooks’ automobile watching a movie; stuck the pistol he had taken from the officer through the open car window; then opened the door and “scooted” Brooks and his companion over. He told Brooks to “crank” the car and said that he had just shot at two cops and wouldn’t hesitate to shoot them.

Appellant then drove the automobile around the area for about an hour and finally left Brooks and the girl at a construction site and drove away. In the meantime he had relieved Brooks of his wallet, containing twelve or thirteen dollars, and what money he had in his pockets and had emptied Miss Pittman’s purse and taken what money she had.

Following his arrest some two weeks later, appellant told Police Officer Durham that he had taken a pistol from a police officer and “had robbed these people of the car and some money” and directed Officer Durham to where he said he threw the pistol out of the car. The pistol was found and identified by its owner.

Appellant’s first claim of error relates to the enhancement paragraph of the indictment, the contention being that there is no evidence to prove that the prior conviction for the offense of burglary was an offense of like character to the offense of robbery by assault.

The enhancement portion of the indictment alleged that prior to the commission of the offense of robbery, to-wit on the 11th day of January, A.D. 1963, in the Criminal District Court of Harris County, Texas, appellant “ * * * in Cause No. 102912 was duly and legally convicted, in said last named court, of an offense of like character and of the same nature as that hereinbefore charged against him in this cause, to-wit, the offense of Burglary, a felony, upon an indictment then legally pending in said last named court and of which the said court had jurisdiction, and said conviction was a final conviction.”

In Farris v. State, 155 Tex.Cr. 261, 233 S.W.2d 856, similar allegations were held sufficient to put the defendant on notice that the prior conviction alleged was for Burglary with intent tó steal, that being the only burglary that was of like character to robbery.

Appellant contends, however, that his stipulation before the court prior to the selection of the jury cannot and will not sustain a finding that the burglary conviction was burglary with intent to commit theft and not burglary with intent to commit some felony such as rape.

The stipulation relied upon by the state, and by reason of which the enhancement count of the indictment was not read or mentioned to the jury, is shown in the statement of facts as follows:

“MR. GILL: I want this understood. He will stipulate and agree to this prior conviction.
“THE COURT: All right.
“MR. JAMES: May it be stipulated between the Defendant, Alan Charles Wiles, his attorney, Mr. Gill, and myself for the State that this is the same Alan Charles Wiles who was previously convicted in the Criminal District Court of Harris County, Texas, on the 11th day of January, 1963, in Cause No. 102912, of the offense of burglary and it was a final conviction prior to the alleged offense included in Cause No. 113,960, burglary with intent to commit theft, and that this is the same Alan Charles Wiles in this case, Cause No. 113,960, that has been previously described in this stipulation.
“THE COURT: Now, do you agree and stipulate to that, Counsel?
“MR. GILL: As his attorney, yes sir.
“THE COURT: Wiles, you agree and stipulate to that? You are making demand that this not be read to the jury or mentioned to the jury panel.
“THE DEFENDANT: Yes sir.”

While more care should have been exercised in entering the stipulation, we note that appellant’s counsel referred to “this prior conviction”; the burglary conviction was described by date, number and court as a final conviction of the appellant for burglary and the phrase “burglary with intent to commit theft” appearing in the stipulation cannot properly be applied to any other burglary than that alleged for enhancement in the indictment for robbery.

The prior conviction was stipulated rather than proved before the jury for appellant’s benefit and at his request.

We conclude that the stipulation is sufficient to relieve the state of the necessity of further proof to sustain the allegation of the indictment that appellant had been previously convicted, in the cause described, of an offense of like character and of the same nature as robbery; to-wit, Burglary.

The reasoning in Farris v. State, 155 Tex.Cr. 261, 233 S.W.2d 856, cited by appellant, is deemed applicable.

We here note that if in fact the prior conviction was not for burglary with intent to steal, and was not therefore available to enhance the punishment for robbery under Art. 62 P.C., relief by habeas corpus would be available upon proof of such fact.

The remaining claim for reversal is that the trial court committed error in not allowing a separate hearing on the issue of insanity with a jury other than the convicting jury.

The issues of insanity at the time of trial and at the time the offense was alleged to have been committed were submitted to the jury and resolved against appellant.

The record shows no request for a separate preliminary trial on the issues, nor do we regard appellant’s affidavit contained in his motion for continuance sufficient to require such a trial.

The judgment is affirmed.


text:
    Cecil Absher PYBURN, Appellant, v. The STATE of Texas, Appellee.
    No. 38905.
    Court of Criminal Appeals of Texas.
    Jan. 12, 1966.
    No attorney of record on appeal for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and A. A. Horne, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

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

The state’s evidence showed that appellant was stopped by a police officer while driving a pickup truck on a public highway at a very slow rate of speed.

The arresting officer testified that the truck “weaved” in the lane of traffic; that appellant staggered and almost fell down after he got out of the pickup truck; that his speech was slurred and he had a smell of alcoholic beverage on his breath. Based upon his observation of appellant and his experience, the officer expressed the opinion that appellant was intoxicated.

A sample of appellant’s urine was taken with his consent and tested. The chemist testified that it contained point forty-four hundredths per cent by weight alcohol and that a person having such amount of alcohol in his urine would have lost the normal use of his mental and physical faculties.

Appellant admitted having consumed three beers but denied that he or his companion were intoxicated. His companion admitted having paid a fine for being drunk on the occasion, but denied that either he or his companion were intoxicated.

The jury resolved the fact issue against appellant and the evidence is sufficient to sustain the conviction.

No brief'has been filed in appellant’s behalf and there are no formal bills of exception.

The informal bills reserved in the statement of facts have been considered and they present no reversible error.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    James Brannon VINES, Appellant, v. The STATE of Texas, Appellee.
    No. 38927.
    Court of Criminal Appeals of Texas.
    Jan. 12, 1966.

      Chappell & McFall, by John R. McFall, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., William M. LauBach, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for the unlawful sale of marijuana; the punishment, five years.

Our disposition of the case renders unnecessary a recitation of the facts other than to observe that to sustain the conviction the state relied upon the fruits of the search of a certain house in the city of Lubbock by Sgt. Bill Bessent and other officers of the Lubbock police department, under the authority of a search warrant.

Prior to Officer Bessent’s testifying relative to the search and the fruits thereof, appellant timely objected on the ground that it had not been shown that the search was lawful.

Appellant’s objection was by the court overruled, and at no time did the state produce the search warrant under which the search was made.

Such action by the court presents reversible error.

Upon timely objection being made by the appellant, it was incumbent upon the state, under the facts, to produce and exhibit to the court a valid search warrant. Having failed to produce such warrant, appellant’s objection to the officer’s testimony should have been sustained. Henderson v. State, 108 Tex.Cr.R. 167, 1 S.W.2d 300; Blackburn v. State, 145 Tex.Cr.R. 384, 168 S.W.2d 662; Brown v. State, 166 Tex.Cr.R. 322, 313 S.W.2d 297.

Being shown to have been legitimately on the premises at the time of the search, appellant is in position to challenge the validity thereof, under the holding of the Supreme Court of the United States in Jones v. United States, 80 S.Ct. 725, 362 U.S. 257, 4 L.Ed.2d 697.

The state confesses error and does not pray for an affirmance of the conviction.

The state further concedes that the court committed error in permitting it to improperly bolster the testimony of its witness Leopha Holland, in violation of the rule stated in the recent case of Lyons v. State, Tex.Cr.App., 388 S.W.2d 950.

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

Opinion approved by the court.


author: COLLINGS, Justice.

text:
    Wayne Edward CROW, Appellant, v. Maurice VINCENT et al., Appellees.
    No. 4012.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 19, 1965.
    Rehearing Denied Dee. 17, 1965.
    Sam Bass, Freeport, for appellant.
    R. E. McDaniel, Winnie, for appellees.
   COLLINGS, Justice.

This suit was filed in the District Court on March 18, 1965, by R. E. McDaniel, Maurice Vincent and his wife, Zelmar Vincent, to have a minor child, Wayne Edward Crow II declared a dependent or neglected child under the provisions of Article 2330 et seq., Vernon’s Ann.Tex.Civ.St. It was also alleged that the child had been in the custody of and had lived in the home of the Vincents since June 13, 1963; that the Vin-cents loved the child and desired to adopt it; that Wayne Edward Crow, the father of the child by adoption, had contributed very little to his support within the preceding two years, and that it would be to the best interest of the child to be declared dependent or neglected, that the parental rights of Wayne Edward Crow be terminated and that the child be placed in the custody of the Vincents.

Wayne Edward Crow filed an answer to plaintiffs’ petition denying the allegations contained therein and prayed judgment of the court that plaintiffs take nothing. Upon a hearing of the cause, judgment was entered on May 17, 1965, decreeing that the minor child Wayne Edward Crow II was not a dependent or neglected child as defined by the statutes of this state. The court further found, however, that Wayne Edward Crow, the father by adoption of the minor child, was not a fit and proper person to have care, custody and maintenance of said child but that Maurice Vincent and his wife were proper and fit persons to have the temporary care, custody, control and maintenance of said child and decreed that temporary custody, care and control of said minor child be awarded to the said Maurice Vincent and wife, Zelmar Vincent. Wayne Edward Crow gave notice of appeal from that portion of the judgment awarding temporary custody of the minor child to Maurice Vincent and wife.

Appellant asserts that appellees’ petition sought only to declare the minor child dependent or neglected. Appellant contends therefore that the court (1) erred in entering a temporary custody, care and control order upon a hearing under such petition. Appellant urges that the court (2) erred in assuming jurisdiction for the determination of the temporary care, custody and control of the minor child in the absence of a suit brought for care, custody and control.

Appellees’ petition did seek to have the minor child declared dependent or neglected, but there were also allegations to the effect that appellant had contributed very little to the child’s support for a period of about two years, and that it would be to the best interest of the child for its custody to be placed with the Vincents. Regardless of the pleadings, it has been held that a child becomes a ward of the court when it is brought before the court for any purpose. In re Badger, 286 Mo. 139, 226 S.W. 936, 14 A.L.R. 286; 27 Am.Jur. 827, 43 C.J.S. Infants § 7b, page 56. The language in the Badger case was cited with approval by our Supreme Court in Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79. Justice Calvert, speaking for the court, stated that the proceeding there involved “although initiated by application for writ of habeas corpus and intended perhaps to determine possession only, nevertheless was one involving custody also * * In the Knollhoff case it was further stated:

“In the case of Green v. Green, Tex.Civ.App., 146 S.W. 567, 568, writ dismissed, a wife filed a suit to enjoin her husband from removing their children out of the state and asking that the order of restraint require the return of one child to her, which it accordingly did. The order was attacked on the ground that the nature of the pleading would not support a custody order, but the court said: * * * a pleading, which shows upon its face that the welfare of a minor child requires that an order be made by a district court or a judge thereof, is amply sufficient to warrant the court or such judge in making such order as in his discretion may appear right and proper for the welfare of the child.’ ”

The record in the instant case shows that appellant Wayne Edward Crow and his wife on January 4, 1963, adopted the minor child Wayne Edward Crow II who was born October 17, 1962. Mrs. Crow died June 12, 1963. On June 13, 1963, Wayne Edward Crow delivered the infant child to Mr. and Mrs. Maurice Vincent and agreed to pay Mrs. Vincent $25.00 per week if she would take care of the baby. The child has lived in the home of Mr. and Mrs. Vincent almost continuously since that time, although it was with Crow for short intervals. Appellant paid the Vincents a total of $300.00 as child support as shown by cancelled checks. The last payment by Crow as shown by such cancelled checks was on November 10, 1963. Appellant claims to have made other payments in cash but admits that he made no payments after January of 1964, about fifteen months before the time of the trial. The Vincents state that no cash payments were made.

The Vincents testified that they had taken good care of the child; that their home was a proper home for the care and custody of the child; that they had paid the doctor bills, hospital and drug bills, and for the clothing of the child; that during the time the child had lived in their home, they had learned to love him and wanted to adopt him; that at one time they talked to Mr. Crow about adopting the baby; that in fact Mr. Crow had called them and wanted them to adopt the baby and they went to see a lawyer about the matter, but later Mr. Crow changed his mind and refused to give his consent to the adoption. On cross examination Mr. Vincent was asked if “This whole proceeding is brought so you can adopt this child, isn’t it?” and Mr. Vincent replied in the affirmative, stating “ — that is what I came here, to adopt the child.” He and his wife both stated that they brought the suit because they loved the baby and wanted to adopt him. The Vincents further testified that although Mr. Crow had given them some money for the support of the child, that it had been a long time since he had paid them anything. They further testified however that they had not requested him to pay anything further for the support of the child and that they were perfectly content with the situation as it was.

Appellant Crow testified that he was a shrimp fisherman. He stated that on account of his job that he could not take care of the baby personally; that he would be out days at a time on the shrimp boat; that after the death of his wife he delivered the child to Mrs. Vincent for her to take care of him; that he thought the Vincent home was a good home and that they would properly care for the child, and that so far as he knew they had adequately cared for the child; that the Vincent home was not an unfit home for the child; that they were not cruel to the child or guilty of improper care of the child in any manner.

Appellant stated that he was not married at the time of the trial but was engaged; that his plan for keeping 'the child was to leave it with his fiancée while he was on the shrimp boat; that he expected to be in every Saturday and Sunday night; that his fiancée was in the courtroom at the time of the trial and that he had discussed the matter of the child with her and she also wanted to keep the child. He stated that his fiancee owned and operated a lounge in Cameron, La.; that it was not a beer joint, but that beer and mixed drinks were served, and she also operated a dance hall on the premises. He stated that his fiancée had a house trailer twelve feet wide by sixty feet long where she and two other young women lived together with a three year old child of one of the women. He stated these women one of whom works in the lounge and his fiancée were the ones he planned to have taking care of the child. Appellant stated that during the time the Vincents were keeping the child he had obtained the baby and brought it to where he was living on occasions for short periods of time; that he had a house trailer; that a Mexican girl was living in the house trailer with him at the time; that they were not married, and that when he came back from “a trip” he found that Mrs. Vincent had the baby. In this connection Mrs. Vincent testified that the Mexican girl brought the baby back to her and said: “I don’t want to take care of that thing.” Mrs. Vincent said that the child was burned badly, from his waist down from being placed in water which was too hot.

We cannot agree with appellant’s contention that under the pleadings the court erred in assuming jurisdiction for the purpose of determining the care, custody and control of the minor child. Although the pleadings did seek to have the minor child declared dependent and neglected, the pleadings and also the evidence indicate that the welfare of the minor child required action by the court concerning the matter of its care and custody. The question of child custody was therefore involved and it was the duty of the court to make such orders as, in the proper exercise of his discretion, might appear to be best for the child’s welfare. Knollhoff v. Norris, supra.

Appellees assert that the judgment is not a final one and that the appeal should be dismissed. In our opinion this contention is well taken. In a suit for child custody an order granting temporary custody and contemplating further proceedings thereon is not a final judgment but only an interlocutory order from which there is no appeal. Affolter v. Affolter, Tex.Civ.App., 389 S.W.2d 742. Appellees’ motion to dismiss the appeal is granted.

The appeal is dismissed.


text:
    Arthur CUELLAR, by next friend, Anthony Cuellar, and Anthony C. Cuellar, Individually, Appellant, v. H. E. BUTT GROCERY COMPANY a/k/a H. E. B. Food Stores, Appellee.
    No. 181.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 8, 1965.
    Herschel Bernard, San Antonio, for appellant.
    W. N. Woolsey, of Lewright, Dyer & Redford, Corpus Christi, for appellee.
   PER CURIAM.

This is an appeal from an order granting summary judgment in favor of ap-pellee. Suit was filed in Bexar County, Texas, in December, 1962, by appellant. The defendant-appellee filed its plea of privilege to be sued in Nueces County. No controverting affidavit was filed and the case was transferred to Nueces County. Defendant filed its motion for summary judgment on the 14th day of May, 1964. Certificate of notice was given to the appellant that the motion had been filed and set for hearing. The transcript does not show any answer filed to defendant’s motion for summary judgment, nor does the request by the appellant, designating matters on file to be prepared by the clerk of the trial court, make any such request for plaintiff’s answer, affidavits or depositions in response to defendant’s motion for summary judgment. On the 1st day of June, 1965, summary judgment for defendant was granted. Proper notice of appeal and appeal bond were timely filed by appellant and the transcript was filed in this Court on the 30th day of July, 1965. Although appellant’s brief was due to be filed in this Court on the 29th day of August, 1965, no brief has ever been filed.

Rule 414, Texas Rules of Civil Procedure, provides that appellant shall file his brief in the Court of Civil Appeals within thirty days after the filing of the transcript (and statement of facts, if any). The time for filing the initial brief expired on the 29th day of August, 1965. Rule 415, T.R.C.P., provides for the dismissal of appeals for failure to file briefs for want of prosecution. Appellant has not attempted to show any good cause why he has not filed his brief. The failure of appellant to comply with the rules relative to the filing of briefs authorizes the Court to dismiss the appeal. Rules 414 and 415, T.R.C.P.; Sneed v. Moore, Tex.Civ.App., 330 S.W.2d 472; Franke v. Franke, Tex.Civ.App., 373 S.W.2d 891.

Because of the fact that the appellant has neither filed nor tendered for filing any brief in this' Court and because the appellant has made no effort to show good cause for his failure to file his brief, the appeal is dismissed.

Appeal dismissed.