author: SMITH, Justice.

text:
    Kenneth H. LOUT et ux., Petitioners, v. Elton Leon WHITEHEAD, Respondent.
    No. B-30.
    Supreme Court of Texas.
    May 17, 1967.

      Joe Davis Foster, Center, for petitioners.
    Bill F. Griffin, Jr., Center, for respondent.
   SMITH, Justice.

This is an adoption proceeding. In this case, Kenneth Lout seeks to adopt two minor sons born to the marriage of Elton Whitehead and Marilyn Whitehead. Elton Whitehead and Marilyn were married in August, 1955, and to that marriage were born two sons who are the subjects of this adoption proceeding. On December 12, 1960, Elton and Marilyn were divorced and custody of the two minor sons was awarded to the mother with right of visitation by the father at all reasonable times. The judgment ordered that Elton, the father, pay the sum of $30.00 per month, beginning January 1, 1961, for the support of the two children.

Marilyn subsequently married the petitioner, Kenneth Lout. Elton was also remarried. Sometime after her marriage to Kenneth Lout, Marilyn gave her consent and joined Kenneth in his petition to be allowed by the Court to legally adopt the two minor children pursuant to Article 46a, § 6, Vernon's Annotated Civil Statutes. The petition for adoption was granted without notice to the natural father. On appeal the judgment of adoption was reversed, the Court of Civil Appeals holding that the proceeding to adopt the children was void because of the lack of notice to the natural father. Whitehead v. Lout, 395 S.W.2d 68 (Tex.Civ.App.1965, no writ hist.).

Thereafter, on November 5, 1965, Kenneth and Marilyn filed a petition in the district court of Shelby County for the adoption of the two minor children in which they alleged that respondent, Whitehead, had failed to support the children for a two-year period commensurate with his financial ability and had for a period of more than two years abandoned and deserted the children. On January 4, 1966, after full notice to the parties, the County Judge of Shelby County granted his consent for the adoption, pursuant to Article 46a, § 6, supra, because the proof established that the respondent had failed to contribute substantially to the support of the children commensurate with his financial ability for a period of two years. Subsequently, on January 5, 1965, the trial for the adoption of the two children was held in the district court in which all parties were present. Trial was to the judge sitting without a jury. Judgment was rendered on February 4, 1966, that the petitioner be allowed to adopt the children because the natural father had failed for a period of more than two years to contribute substantially to the support of the children commensurate with his financial ability. From this judgment the respondent appealed to the Court of Civil Appeals. That court reversed and remanded the cause. 408 S.W.2d 569.

Whitehead as appellant in the Court of Civil Appeals attacked the judgment of the trial court by six points of error. The Court of Civil Appeals did not pass on several of the points, but confined its consideration to the points relating to whether respondent failed for a two-year period to contribute substantially to the support of the children commensurate with his financial ability and the question of whether such failure was due to a course of conduct on his part showing indifference to the welfare of the children. We deal with this latter question later in this opinion. We have concluded that the judgment of the Court of Civil Appeals based on its holding that before an adoption without the natural parent’s consent is authorized the evidence must establish that the respondent failed to support the children for a period of two years immediately prior to the judgment of adoption is erroneous; therefore, we will not only dispose of the law questions presented in the application for writ of error, but we will also dispose of the other points not considered by the intermediate court which, if sustained, would require an af-firmance of that court’s judgment.

We first consider the holding on which the Court of Civil Appeals based its judgment. The Court of Civil Appeals has held that to authorize an adoption without the consent of the natural parent the evidence must establish that the natural parent failed to make child support payments commensurate with his financial ability for a period of two years immediately prior to the judgment of adoption. We do not agree with this premise. It will be noted that the statute speaks of “a period of two (2) years.” Nowhere in the statute are words which confine the period to two years immediately prior to the judgment of adoption. Indeed, “a” period of two years connotes any two-year period. In accord with his interpretation of the statute are the cases of Jones v. Bailey, 284 S.W.2d 787 (Tex.Civ.App.1955, writ ref’d n. r. e.) and Pearson v. Newton, 371 S.W.2d 126, 127 (Tex.Civ.App.1963, no writ hist.). In Jones, the question was squarely before the court, as here, whether after two years of nonsupport a resumption of payment would bar the stepfather’s right to adoption without the written consent of the natural father. The court held such resumption was not sufficient to defeat the accrued right of the stepfather to adopt the child without the consent of the natural father. In so holding, the court said:

“If such were the rule, the delinquent father could at anytime after the two years of nonsupport provided for in the statute, and before his child is adopted, avoid the adoption by a few current payments of child support, and thereby start a new two-year period of nonsupport under the statute.”

In the Pearson case, the father, after a period of over two years of nonsupport, began to make the payments after the filing of the adoption proceedings. The court there held that this action was insufficient to defeat the stepfather’s right, which accrued after the two-year period of nonsupport, to adopt the child without the natural parent’s written consent. We hold that once a two-year period of unexcused nonsupport occurs, an adoption of the child without the consent of the father may be granted pursuant to the statutory provisions.

As we construe the statute, it was incumbent on the petitioner to prove that respondent had failed for a period of two years to contribute substantially to the support of his children commensurate with his financial ability. See Armstrong v. Manzo et ux., 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965), opinion adopted in In re Armstrong’s Adoption, 394 S.W.2d 552 (Tex.Civ.App.1965, no writ hist.). In this connection we point out that the respondent in the present case related a history of gainful employment from the date of divorce through the trial of this cause. The respondent’s occupation during the period following his divorce, and until the trial, was that of a truck driver. He changed jobs from time to time, and would sometimes work on a commission basis and at other times on a straight salary. During the critical period between the date of the divorce and the date of the trial his lowest take-home pay was approximately $64.00 a week when he was working on a commission basis; however, when he was working for a salary he earned as much as $600.00 a month. We think that this record of employment compels the conclusion that Whitehead was financially able to make some payments of child support.

We next consider whether the evidence establishes a two-year period in which no support money was paid. Marilyn Lout testified that the only support money she received from respondent was $82.00 which was paid between December 1960 to June 1961. The respondent takes the position that the trial court erred in finding that there was a two-year period in which he had failed to support the children commensurate with his financial ability. We do not agree with this position. In this connection we note the child support payments that were allegedly made or offered. From December 1960 to June 1961, a total of $82.00 was paid in cash to Marilyn Lout. In March 1961 $20.00 in money orders were sent to the boys for birthday presents. These facts are undisputed. In December 1961, Christmas presents consisting of clothes and a toy were sent to the boys. It is shown by way of a bill of exception that in March 1962, money orders allegedly totaling $250.00 were enclosed in letters sent to the boys. The envelopes containing these alleged money orders were marked refused and returned to respondent. In March 1963, money orders allegedly totaling $740.00 were sent to the children; the envelopes were marked refused and returned to respondent. In March 1964, money orders allegedly in the amount of $881.00 were sent to the boys; again, the envelopes were marked refused and returned to respondent. Finally, on January 15, 1965, money orders totaling $60.00 (dated December 1964 and addressed to the boys) were tendered into court. Since the money orders which allegedly totaled an amount of $250.00, $740.00 and $881.00, respectively, were not produced at the trial, their amount and to whom they were made payable were excluded from the testimony upon petitioner’s objections based on the best evidence rule. While it is true that the amounts of the money orders were included in respondent’s bill of exception, no assignment of error was made by respondent in the Court of Civil Appeals to the trial court’s refusal to admit that evidence into the record; therefore, respondent waived any right to complain on appeal of the trial court’s ruling. Talbott v. Hogg, 298 S.W.2d 883 (Tex.Civ.App.1957, writ dism’d). Thus, the amounts of the money orders and to whom they were made payable were not properly before the court. The only evidence of child support payments properly before the Court of Civil Appeals and this Court are the payments from December 1960-June 1961, and the sum of $60.00 tendered into court on January 15, 1965. It can thus be seen there is a hiatus of over two years, to wit, June 1961-January 1965 in which the evidence conclusively establishes no payment of child support was made or tendered.

Conceivably a natural father could after two years or more of nonsupport resume compliance with the order of the court and thenceforward make support payments in substantial support of his children in accord-dance with such order. As heretofore pointed out, however, this record does not present such a factual situation.

In the present case the Court of Civil Appeals held that since the respondent’s failure to make child support payments was not due to a course of conduct showing a conscious disregard of the children, he had a right to come into court and pay the delinquent payments he was charged with missing and thereby defeat petitioner’s right to adopt the children. We do not agree with this interpretation of the statute. While an inquiry into a course of conduct showing conscious indifference is relevant in determining whether a parent has voluntarily abandoned a child, determination of that matter is unnecessary when the court is charged, as here, solely with determining whether a parent has failed for a period of two years to contribute substantially to the support of his children commensurate with his financial ability. This is true since the statute provides that an adoption without the written consent of the parent may be made with the consent of the county judge either upon a showing of voluntary abandonment and desertion or a failure to support the children for a period of two years commensurate with the parent’s financial ability.

We now consider the points in the appellant’s brief not passed on by the Court of Civil Appeals in order to determine whether that court’s judgment which reversed and remanded the cause may be affirmed. The appellant (respondent in this Court) complained in the Court of Civil Appeals that the trial court erred in not granting his motion to dismiss the adoption proceeding. Numerous and diverse reasons were contained in this motion. The judgment of the trial court recites that this motion was not presented until after the petitioner had called his first witness to the stand. No testimony was introduced in support of the motion, but five exhibits were offered in support thereof. Four of the exhibits were excluded from the evidence and no assignment of error was made in the intermediate court of the trial court’s exclusion of those exhibits and, therefore, any right to complain on appeal of the court’s action in excluding those exhibits was waived. Talbott case, supra. The fifth exhibit was the divorce decree of Marilyn Lout and Elton Whitehead. This decree does not support the motion to dismiss the adoption proceeding. We thus find no error in the trial court’s ruling in denying the motion to dismiss.

The appellant also complained that the trial court erred in not granting his “Alternate Motion to Dismiss or Withhold.” Again, this motion was not presented until after the parties had gone to trial. The motion was predicated on the fact that respondent had previously petitioned the trial court for a modification of his visitation rights and a change of custody of the children. This motion to dismiss like the original motion to dismiss was without merit. The point alleging error is overruled.

Finally, complaint was made of the trial court’s ruling denying respondent a jury in the adoption proceeding. Assuming without deciding that a party may demand a jury in an adoption case, this motion was not made until the parties had proceeded to trial. The final judgment of the trial court so recites. We overrule this point.

We come now to the judgment to be entered in this cause. The Court of Civil Appeals had points before it to the effect that the findings of the trial court that Whitehead failed to contribute substantially to the support of his children commensurate with his financial ability for a period of two years were against the great weight and preponderance of the evidence. Of course, these are points over which the Court of Civil Appeals has final jurisdiction. That court sustained these points and accordingly reversed and remanded the cause. However, since we have held as a matter of law that Whitehead failed to contribute substantially to the support of his minor children commensurate with his financial ability for a period of two years, there is no issue of fact to be determined by the intermediate or trial court.

We therefore reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

      . “Sec. 6. Except as otherwise provided in this Section, no adoption shaE be permitted except with the written consent of the living parents of the child; provided, however, that if a living parent or parents shall voluntarily abandon and desert a child sought to be adopted, for a period, of tioo (2) years, and shaE have left such child to the care, custody, control and management of other persons, or if such parent or parents shaE have. not contributed substantiaEy to the support of such chüd during such period, of two (2) years commensurate with his financial abEity, then, in either event, it shall not be necessary to obtain the written consent of the living parent or parents in such default, and in such cases adoption shall be permitted on the written consent of the Judge of the Juvenile Court of the county of such chEd’s residence; or if there be no Juvenile Court, then on the written consent of the Judge of the County Court of the county of such chEd’s residence. * * * ” [emphasis added.]


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    Ex parte Arlice J. HUFFMAN.
    No. 40475.
    Court of Criminal Appeals of Texas.
    May 24, 1967.

      Arlice J. Huffman, pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is an application for writ of habeas corpus brought by an inmate of the Department of Corrections. He alleges that he was without counsel at the time he plead •guilty to felony theft on April 12, 1948, in ■Cause No. 8798 in the Ninth Judicial District Court of Montgomery County and that such conviction was later used for enhancement in a subsequent life sentence conviction in 1951 in the District Court of Caldwell County as a third offender.

This Court has been furnished a certified copy of the judgment in Cause No. 8798 which does not indicate that counsel was present when petitioner entered his plea of guilty.

On January 26, 1967, this Court requested the Honorable Ernest Coker, Judge of the Ninth Judicial District, to certify whether or not counsel was present at the time of the entry of the plea of guilty in said cause and informed him that, unless otherwise indicated by his certification, petitioner’s allegation that he was without counsel would "be accepted as true. In this connection it should be noted that in Huffman v. Beto, D.C., 260 F.Supp. 63, at 66, the State conceded that petitioner was not represented by counsel in his 1948 Montgomery County •conviction.

In reply, Judge Coker certified •that he always appointed counsel “if one was requested.” This is not sufficient to comply with the terms of Art. 10a Vernon’s Ann.C.C.P. (now Art. 1.13) and the holdings of this Court in Ex parte Greer, 408 S.W.2d 711, and Ex parte Hammonds, 407 S.W.2d 779.

Petitioner has served in excess of 12 years which is the maximum permissible punishment for a conviction for burglary without prior non capital convictions used for enhancement.

The application for writ of habeas corpus is granted and it is ordered that petitioner be released from further confinement under the life sentence affirmed by this Court in Huffman v. State, 245 S.W.2d 265.


author: BELCHER, Judge. ONION, Judge.

text:
    Ex parte Billy Wayne McCARTER.
    No. 40352.
    Court of Criminal Appeals of Texas.
    April 26, 1967.
    Rehearing Denied May 31, 1967.

      W. T. Bennett, Huntsville, for petitioner.
    Howard M. Fender, Asst. Atty. Gen., Austin, Gus L. Lanier, Dist. Atty., Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

This is a habeas corpus proceeding under Art. 11.07, Vernon’s Ann.C.C.P.

The evidence heard by the trial judge on the hearing of relator’s application for the writ was as follows:

On July 6, 1953, in the Criminal District Court of Dallas County, relator, having waived a trial by jury and entered a plea of guilty, was assessed a term of five years in the penitentiary for felony theft and it was ordered that the sentence be suspended during good behavior.

On September 2, 1955, the relator waived a jury and entered pleas of guilty in the Criminal District Court of Dallas County in each of two cases of felony theft and was assessed a term of three years in the penitentiary in each case. These sentences were served concurrently, and from each he was discharged on September 9, 1957.

On December 6, 1957, the relator waived a jury and entered pleas of guilty in the Criminal District Court of Dallas County in two cases: one for the offense of assault with intent to commit rape and the other for burglary, subsequent offense. In each case the relator was assessed a term of twelve years. A certificate of the Records Division of the Texas Department of Corrections shows that these two sentences were served and he was discharged therefrom on February 9, 1967. The relator is currently confined because of the revocation of a suspended sentence.

On January 7, 1958, which was during the term of the suspension of the five-year sentence granted the relator on July 6, 1953, a hearing was had on the state’s motion to have it revoked. After said hearing, the court entered an order setting aside the suspended sentence granted in 1953, pronounced sentence upon him in said cause, and ordered it cumulated with the twelve-year sentence pronounced against him on December 6, 1957, for the offense of burglary, subsequent offense.

The relator insists that the Criminal District Court of Dallas County had no authority in 1958 to revoke the suspended sentence granted him in 1953, on the ground that he had served two concurrent sentences for felonies between 1953 and 1958.

Art. 779, V.A.C.C.P., provided that upon final conviction of a defendant for any other felony, pending the suspension of sentence, the court granting such suspension shall pronounce sentence upon the original judgment of conviction and shall cumulate the punishment of the first with the punishment of any subsequent conviction or convictions. The provisions of this statute were mandatory. Eldridge v. State, 159 Tex.Cr.R. 79, 261 S.W.2d 579; Ex parte House, 161 Tex.Cr.R. 368, 276 S.W.2d 846; Young v. State, 162 Tex.Cr.R. 382, 285 S.W.2d 748. This contention is overruled.

For discharge, the relator also relies upon the ground that he was denied counsel at the hearing by the trial court to revoke his suspended sentence.

While testifying on the motion to revoke in the same court that granted his suspended sentence, the relator admitted that he had counsel of his selection in the 1953 conviction when his sentence was suspended; that at the hearing on January 7, 1958, he requested counsel and also asked the trial judge to let him contact an attorney, but the judge declined.

In Ex parte Crawford, 379 S.W.2d 663 (1964), this court held that the judgment was not void because the probation, in a prior case used for enhancement, had been revoked without the probationer having the assistance of counsel.

The provisions of Art. 42.12, C.C.P., which became effective January 1, 1966, relating to the appointment of counsel when probation is sought to be revoked, is not retroactive. See: Art. 1.02, C.C.P., and Ex parte Williams, Tex.Cr.App., April 5, 1967, 414 S.W.2d 472.

No error is presented. The relief is denied.

ON MOTION FOR REHEARING

ONION, Judge.

In his motion for re-hearing, relator contends that this Court failed to make a distinction between a suspension of the execution of a sentence and the suspension of the imposition of a sentence with regard to his 1953 suspended sentence.

He points out that when he was given a suspended sentence in 1953 for felony theft in the Criminal District Court of Dallas County, the trial judge then presiding actually imposed sentence, and thereafter suspended the execution of such sentence during the good behavior of the relator.

It is his contention that after the adj ournment of the term of court at which such sentence was imposed and execution thereof suspended the trial court was powerless upon revocation of the suspended sentence to alter its terms or make it cumulative with any later sentence. In support of his contention, he cites Ex parte O’Connor, Tex.Cr.App., 394 S.W.2d 815; Ex parte Green, Tex.Cr.App., 375 S.W.2d 312; Ex parte Hernandez, Tex.Cr.App., 364 S.W.2d 688; Ex parte Rutherford, 171 Tex.Cr.R. 302, 350 S.W.2d 31; Ex parte Downey, 171 Tex.Cr.R. 296, 350 S.W.2d 20; Ex parte Scott, 168 Tex.Cr.R. 353, 328 S.W.2d 190; Ex parte Tucker, 168 Tex.Cr.R. 308, 325 S.W.2d 703; Ex parte Minor, 167 Tex.Cr.R. 170, 319 S.W.2d 114.

None of the cases cited pertain to suspended sentences granted under Articles 776-781, C.C.P. (1925). All of the above cited cases were probation cases where sentence was imposed and the execution of the sentence suspended under the provisions of either Article 781b, V.A.C.C.P. (1947) or Article 781d, V.A.C.C.P. (1957). These statutes permitted the trial judge when granting adult probation to suspend either the imposition or the execution of the sentence. See also Article IV, Section 11 A, Texas Constitution. In each of the cases cited by appellant, the trial judge in granting probation had actually imposed sentence and then suspended the execution thereof subject to certain conditions of probation. These cases in effect held that when the trial court chose such method of granting probation it lost, after the adjournment of the court term at which the sentence was imposed, the authority to amend, alter or change the sentence, or to make it cumulative with a later sentence if the probation granted was revoked.

These cases had no application where the trial court had chosen the other method of granting probation, that is, the suspension of the imposition of sentence subject to probationary conditions. Under such method sentence is not imposed unless revocation of probation is ordered. Where such method is used, the sentence imposed following revocation can be made cumulative with other outstanding sentences. It is observed that Article 42.12, Sections 1 and 3, of the 1965 Code of Criminal Procedure, now provides only for the suspension of the imposition of the sentence when probation is granted.

The Legislature did not intend either Article 781b, supra, or its successor, Article 781d, supra, to be construed as additional powers and duties granted in connection with the then existing Suspended Sentence Law. Articles 776-781, C.C.P. (1925). Ex parte Pittman, 157 Tex.Cr.R. 301, 248 S.W.2d 159.

In extending clemency in 1953 to relator, it is obvious that the trial court proceeded under the provisions of the Suspended Sentence Law, supra, rather than the Adult Probation Law (Article 781b), then in effect.

It is clear from reading Articles 776-781, supra, (the Suspended Sentence Law) that where the sentence was suspended pursuant thereto that no sentence was to be imposed. Article 778, supra, provided that where the sentence was suspended, the judgment entered would not become final except as provided in Article 779, supra. Section 1 of Article 779, supra, provided that upon revocation of the suspended sentence as a result of a final conviction of any other felony the Court shall pronounce sentence upon the original judgment of conviction and shall cumulate the punishment assessed with any subsequent conviction or convictions. The provisions of this Article were held to be mandatory. Young v. State, 162 Tex.Cr.R. 382, 285 S.W.2d 748.

From the foregoing it is seen that a trial judge in granting clemency pursuant to the Suspended Sentence Law could not properly impose a sentence and then suspend its execution.

It appears from the record that in 1953 the Judge of the Criminal District Court of Dallas County actually imposed sentence upon relator and then added to such sentence the words: “Sentence suspended during the good behavior of the Defendant. Defendant sentenced and placed under recognizance in the amount of $1,000.00.”

It is obvious that the trial court clearly intended to give to the relator the benefits of the suspended sentence law which he had the power to do. The fact that in doing so, he took an additional and unauthorized step in imposing sentence did not prevent the trial judge in 1958 from legally pronouncing sentence against relator following revocation of the suspended sentence and cumulating it with the 1957 felony conviction in accordance with Article 779, supra.

It is noted that the Suspended Sentence Law has been repealed by the 1965 Code of Criminal Procedure.

While the point is not raised again on rehearing, it is observed that the sentence entered on January 7, 1958, following revocation of the suspended sentence on the same day states that relator’s counsel was present at the time of such sentence.

Relator’s Motion for Re-hearing is overruled.


author: MORRISON, Judge. WOODLEY, Presiding Judge

text:
    Ex parte Efrain MIRANDA. Ex parte Rene RODRIGUEZ.
    Nos. 40334, 40335.
    Court of Criminal Appeals of Texas.
    May 17, 1967.
    Joe B. Evins, Edinburg, for appellant.
    Oscar B. Mclnnis, Dist. Atty., Edinburg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is an appeal from an order after hearing denying relief in a writ of habeas corpus proceeding.

On August 30, 1965, the amendment to Sec. 6 of Article 2338-1, Vernon’s Ann.Rev. Civ.St. became effective. Such amendment provides for the certification of children 16 years or older by the Juvenile Court to the District Court for prosecution of such children as adults when they are charged with an offense which would be a felony if committed by an adult.

Since the amendment, this Court has held certain portions thereof to be unconstitutional and affirmed a conviction of an appellant who was under the age of 16 years at the time the offense was committed. See Foster v. State, Tex.Cr.App., 400 S.W.2d 552.

On December 15, 1965, these appellants were arrested in connection with an investigation of a murder which had occurred on the evening preceding. However, on the same day petitions were filed in the Juvenile Court alleging that both appellants had committed the offense of sodomy on December 14, 1965, and that each of them had, on different days almost a year prior thereto, committed a burglary.

On December 21, 1965, appellant Rodriguez was 15 years and 11 months old, and appellant Miranda was 16 years and 28 days old. On such date after a hearing before the three District Judges of Hidalgo County, at which evidence and judicial confessions were heard implicating appellants in a charge of sodomy and two different burglaries, a general finding of delinquency was entered, and appellants were delivered to the State School for Boys at Gatesville. There they remained until January 24, 1967, when a bench warrant was issued for their return to Hidalgo County on a charge of murder to await the action of the grand jury of such county scheduled to meet on February 16, 1967. By this time each appellant had become 17 years of age.

Upon their return to Hidalgo County appellants filed applications for writs of ha-beas corpus in the 92nd District Court. Three District Judges sitting en banc heard evidence and at the conclusion thereof, denied the applications, and notice of appeal was given to this Court. The record of such hearing as well as the hearing of December 21, 1965, is before this Court. At the habeas corpus hearing the attorney representing the State, who had also represented the State at the December 21, 1965, Juvenile Hearing, candidly admitted that at the time of such hearing he was not aware of the amendment to Article 2338-1, Sec. 6, V.A.R.C.S., which had become effective the preceding August. At the hearing, counsel who appeared for appellants failed to call the court’s attention to the amendment and made no request for a hearing.

The thrust of appellants’ applications is that they were deprived of a hearing in the Juvenile Court in December 1965, on the question of whether or not they should have then been certified and transferred to the District Court for trial as an adult on the murder charge now pending against them, as the State was at that time in possession of information sufficient to prosecute them for such charge. It is appellants’ contention that because they were deprived of a hearing consistent with the essentials of due process and fair treatment at a “critically important proceeding”, the District Court of Hidalgo County was without jurisdiction to enter any order affecting appellants’ custody subsequent to the Juvenile Hearing. Reliance is had upon Kent v. U. S., 383 U.S. 541, 16 L.Ed.2d 84, 86 S.Ct. 1045. In Kent the conviction was reversed because the Juvenile Court waived jurisdiction without first conducting a hearing. This was held to constitute a denial of due process. In the instant case the Juvenile Court accepted jurisdiction on December 21, 1965, and declared the appellants delinquent. The two cases are distinguished on the facts, and appellants were not denied due process.

In the case at bar the jurisdiction of these appellants had been transferred to the Texas Youth Council, and they are now charged with murder by an indictment returned after they had reached the age of accountability, i. e., 17 years of age, and Sec. 6 of Article 2338-1, supra, requiring waiver of jurisdiction by the Juvenile Court no longer applies. Foster v. State, supra, is applicable to appellant Rodriguez.

As to appellant Miranda, we are called upon to pass upon his contention that the August 1965 amendment is mandatory. As we read the Act it permits the Juvenile Court to hold a hearing and permits him to certify for felony prosecution only those Juveniles who the court in his judgment concludes should be prosecuted. Given such an interpretation, the act is constitutional and the caption is not misleading when it states “ * * * providing for transfers of certain cases in Juvenile Courts from the jurisdiction of Juvenile Courts to the jurisdiction of the other courts in this State; providing that certain delinquent children shall be subject to the penal laws and criminal prosecution the same as if they were adults.” (Emphasis added.)

It should further be noted that Kent had been finally convicted prior to the granting of relief by the Supreme Court, while appellants here stand charged under an indictment, but have not been tried. However appellants may title their claim for relief, as a matter of law it constitutes an attack upon the validity of the indictments now pending against them.

On April 19, 1967, in Ex parte Rodriguez, 413 S.W.2d 919, we said that the record made at the hearing on the accused’s plea to the jurisdiction as well as his application for writ of habeas corpus will be made a part of the trial record of the case upon its merits by virtue of Article 28.01, Sec. (2), Vernon’s Ann.C.C.P. (1965).

In Foster v. State, supra, we had practically the same question of law which is before us here, except that in the case at bar the offenses for which appellants were committed as juveniles were not a part of the transaction upon which the State now seeks to prosecute them. Hence the reason for the writer’s dissent in Foster does not appear in this case.

We are not here called upon to pass upon the admissibility of the confessions to the murder given by appellants to the deputy sheriff on December 15, 1965.

The appeal from the judgment remanding appellants to the custody of the sheriff of Hidalgo County is dismissed because of the return of indictments the day following the entry of notice of appeal; however, the above is a statement of the view of the majority on the questions of law presented.

WOODLEY, Presiding Judge

(Concurring).

On the same day appellants were remanded to custody and gave notice of appeal the Grand Jury returned an indictment against them for^the murder.

The appellants being in custody under capias issued after the return of the indictment, and no longer restrained under warrant of arrest issued upon complaint or bench warrant, I concur in the dismissal of the appeals.

      . Harling v. U. S., 5 Cir., 295 F.2d 161, and Kent v. U. S., supra.


author: DICE, Judge.

text:
    Sam PIRAINO and Joe Piraino, Appellants, v. The STATE of Texas, Appellee.
    No. 40364.
    Court of Criminal Appeals of Texas.
    May 24, 1967.
    Jack Miles, Will Gray, (on appeal only), Houston, for appellant.
    Carol Vance, Dist. Atty., Richard M. DeGuerin and Jimmy James, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

Appellants were jointly tried and convicted for the offense of aggravated assault upon a female. The jury assessed the punishment of each at seven hundred thirty days in jail and a fine of $1,000, and recommended that they be granted probation.

This is an appeal by appellants from the conviction at the time they were granted probation, as authorized by Art. 42.13, Sec. 8(a), of the 1965 Code of Criminal Procedure.

The record shows that the appellants were in the bail bond business in the city of Houston.

Appellant Joe Piraino, as surety, executed six bail bonds for Mrs. Delenda Johnson, the injured party, in certain cases pending against her in the corporation court of the city of Houston, for alleged traffic law violations. The bonds were forfeited.

Thereafter, on February 14, 1966, appellants went to Mrs. Johnson’s home, where they placed handcuffs on her, took her to their office, and then to the corporation court and delivered her to the city officers.

Mrs. Johnson testified that when appellants entered her home they grabbed her, knocked her down, and put handcuffs on her, and that she received bruises on her wrist.

Appellants denied that they used any violence upon the injured party or inflicted any injuries but admitted that they did place handcuffs on her and take her to the corporation court.

Six grounds of error are urged by appellants in their briefs filed in the trial court.

In the first two grounds it is insisted that state’s counsel erred in “arguing to the jury that bondsmen had no right to physically detain or arrest a principal under a bond” and misstating to the jury the law with reference to the rights of a bondsman to effect a physical surrender of a principal.

We have examined the record and find no objection to any such argument. The grounds of error present nothing for review.

In their third ground of error, appellants insist that the court erred in overruling their motion for an instructed verdict of not guilty because no intent to injure was shown. It is insisted that the proof shows that their primary intent was to arrest the injured party and not to injure her.

We find no merit in the contention, as the injured party testified she received injuries from the appellants which resulted in bruises. The proof also shows her constraint by appellants.

Art. 1139 of the Penal Code provides:

“When an injury is caused by violence to the person, the intent to injure is presumed, and it rests with the person inflicting the injury to show the accident or innocent intention. The injury intended may be either bodily pain, constraint, a sense of shame or other disagreeable emotion of the mind.”

In their fourth ground of error, appellants complain, generally, of the “prosecution’s remarks made during the trial which were prejudicial and inflammatory, thereby depriving defendants of a fair trial.” No particular remark to which an objection was made is specified by appellants in their briefs except a statement by state’s counsel in his closing argument to the jury when he said:

“A great asset, they are not an asset but blood_suckers, in God’s name they are.”

The record reflects that appellants’ objection to the argument was by the court sustained. No motion to strike the remark nor motion for a mistrial was made by appellants. No reversible error is shown. Hasek v. State, Tex.Cr.App., 384 S.W.2d 722.

In their fifth ground of error, appellants insist that they were deprived of a fair trial because of the prosecutor’s action in taking the witness stand at the hearing on punishment and testifying that their general reputation for being peaceable and law-abiding citizens was bad.

We perceive no error. It should be observed that appellants’ punishment was fixed by the jury in a separate hearing. No objection was made by appellants to such procedure or to state’s counsel’s testimony.

Art. 37.07-2(b) of the 1965 Code provides :

“Regardless of whether the punishment be assessed by the judge or the jury, evidence may be offered by the State and the defendant as to the prior criminal record of the defendant, his general reputation and his character.”

Under the statute, evidence of the appellants’ general reputation was admissible. See: Smith v. State, Tex.Cr.App., 414 S.W.2d 659, opinion dated April 12, 1967.

In their sixth and last ground of error, appellants insist that the court erred in admitting unsworn hearsay evidence by the prosecutor, over timely objection, in violation of their rights under the laws and Constitution of the State of Texas and of the United States.

During the cross-examination of the appellant Joe Piraino with reference to who filled in the name of the bank on certain checks given to him by the injured party, the following transpired:

“Q It is your position she [Mrs. De-lenda Johnson] filled in Port City State Bank? A Yes, sir.
“Q Are you familiar with Mr. Queen? A No, sir.
“Q He is an handwriting expert, are you familiar with the fact he says this is not the same [sic] ?
“MR. HUDSON: Objection, I ask the Court to instruct Mr. James if he wants to bring Mr. Queen in and not make comments, it is hearsay and he knows it [sic].
“THE COURT: I don’t think you gentlemen want me to speak to either one of you again.”

From the record it appears that appellants did not obtain a ruling from the court on the objection. In the absence of a ruling no error is presented. Rodriguez v. State, Tex.Cr.App., 398 S.W.2d 124.

Later, another question of which appellants complain was asked by state’s counsel relative to the handwriting on some of the checks.

No objection was made to the question by appellants at the trial. Under the record, they are in no position to complain. Cook v. State, Tex.Cr.App., 388 S.W.2d 707.

The judgment is affirmed.


text:
    Samuel Dale BELLAH, Appellant, v. The STATE of Texas, Appellee.
    No. 40256.
    Court of Criminal Appeals of Texas.
    April 26, 1967.
    Rehearing Denied June 14, 1967.

      Jon N. Hughes, Houston, Marvin O. Tea-gue (On Appeal Only), Houston, for appellant.
    Sam L. Jones, Jr., Dist. Atty., Kenneth L. Yarbrough, Asst. Dist. Atty., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is murder without malice; the punishment, five years.

We will first pass upon appellant’s ground of error that the evidence is not sufficient to support the conviction. The State’s witness testified that appellant fired a shot into the wall of a tavern and then, while his brother was attempting to take the pistol away from him, fired another shot into the deceased, the proprietor of the tavern, who was making no overt gesture toward the appellant.

Appellant and his witnesses testified that he fired the first shot toward the ceiling in order to frighten the deceased, who had become argumentative, and that the second shot was accidentally fired after or at the time deceased was making an assault upon appellant with a beer mug.

The jury chose to accept the testimony of the witness for the State, and reject that of appellant and his witnesses, and we find the evidence sufficient to sustain the conviction. We need not pass upon his contention that it was insufficient at the time the State rested its case in chief. Cross v. State, 100 Tex.Cr.R. 88, 271. S.W. 621; Lopez v. State, 172 Tex.Cr.R. 317, 356 S.W.2d 674.

Appellant’s next ground of error is that he was required to proceed to trial under any judge other than the Honorable Tillman Smith without his consent. Though not clearly established by this record for the purpose of this appeal, we will proceed on the assumption that the Honorable Tillman Smith presided during the examination of the jury panel and the Honorable Terry Jacks presided during the hearing of the evidence and the receipt of the jury’s verdict.

Article V, Sec. 11 of the Constitution of Texas, Vernon’s Ann.St. authorizes-the exchange of benches by District Judges and our attention has not been directed to any claim of injury to this appellant by the fact that Judge Jacks heard the testimony, gave the jury his charge and received their verdict.

Appellant next contends that he was deprived of the use of a prior statement of the witness Marie De Hoff for the purpose of cross examining her. In Hughes v. State, 172 Tex.Cr.R. 441, 358 S.W.2d 386, this Court had before it the identical question here presented. In that case the court declined to allow counsel to cross examine a witness from a prior statement which the witness had made, but which had not been used to refresh the memory of the witness prior to trial. The witness’ former statements there and here were made a part of the record on appeal and we were not then and are not now able to find any discrepancy or conflict between her testimony and the contents of the statement.

He next contends that the court erred in permitting State’s counsel to testify that he called a member of a firm of lawyers who was representing appellant and made certain demands. The prosecutor was careful to refrain from giving any answers that he received, but merely stated what he told the lawyer. This is not hearsay because this is not testimony as to what the other party stated to the witness over the telephone. McCormick and Ray, Texas-Law of Evidence, Sec. 792, f. n. 69.

Appellant’s next ground of error is that the court erred in admitting the sub-poenaes in the case as evidence. They were offered and admitted just as the State was prepared to close its case, and counsel tendered them for the avowed purpose of showing that the State had exercised due diligence in securing and presenting all available testimony. We have been cited •no contrary authority on the question and have concluded that the court did not err in admitting them.

Appellant’s next ground of error was ■eliminated when the court reversed his ruling and offered to permit the jury to ■examine the tendered shirt.

The next ground of error is that the ■court erred in overruling appellant’s objection to the form of the question propounded to appellant’s brother about a prior conviction. There was nc objection that the prior conviction was in fact too remote. Unless the question was obviously improper and prejudicial to appellant, we would decline to reverse a conviction merely because of the form of a question.

The next ground of error relates to the prosecutor’s testimony about taking a statement from appellant’s brother on the day following the homicide. Such testimony was admissible in order to prove the conflict between the witness’ testimony and his prior statement.

The next ground of error relates to the court’s charge. The objections made at the trial did not point out to the court the complaint which he now asserts. It is axiomatic that an appellant may not make one objection to the court’s charge at the time of trial and assert as error another objection when his case reaches this Court on appeal. 5 Tex.Juris.2nd, Sec. 47, p. 84. In the absence of a proper objection it is only in those cases where the erroneous charge goes to the basis of the case and is contrary to and fails to state the law under which the accused is prosecuted that objections to the charge are considered on appeal as fundamental error. Garza v. State, 162 Tex.Cr.R. 655, 288 S.W.2d 785.

The next ground of error relates to the sending of the subpoenaes mentioned above to the jury room. What we have said above as to their admissibility disposes of this ground.

The next ground of error raised by brief in the trial court relates to the Court’s action in sustaining the State’s objection when appellant’s counsel asked deceased’s wife when and where she and deceased had been married. The witness testified that she and deceased had been married for two years prior to the homicide. Under the holding of this Court in Burnett v. State, 162 Tex.Cr.R. 1, 280 S.W.2d 260, it would appear that the details of her marriage would not be admissible.

Appellant’s last ground of error raised in his brief filed in this Court but not in the trial court, is that the trial court erred in not having the jurors’ names placed in a receptacle and well shaken in compliance with Art. 35.11, Vernon’s Ann. C.C.P. Such an error is not one of constitutional dimension, nor does it present such a serious question of law that it would require discussion under Sec. 13 of Art. 40.09, V.A.C.C.P.

Finding no reversible error, the judgment is affirmed.

ONION, J., not participating.


author: BELCHER, Judge.

text:
    Louis MADISON, Appellant, v. The STATE of Texas, Appellee.
    No. 40198.
    Court of Criminal Appeals of Texas.
    May 3, 1967.
    Rehearing Denied June 14, 1967.
    O. M. Street, Dallas, for appellant.
    Henry Wade, Dist. Atty., Kenneth Blass-ingame, Ross Teter and Kerry FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for robbery; the punishment, thirty-five years.

The trial was had and notice of appeal was given before January 1, 1966.

The injured party testified that while walking along a street, three men grabbed, hit and kicked him; that three of his teeth were knocked out, and he suffered a stab wound which punctured his intestines and liver; that his assailants took his billfold containing $4.60 in money without his consent, and put him in fear of bodily injury and his life; and while testifying, he identified the appellant as one of the three men who assaulted him and took his money.

The testimony of Officers Johnson and Hill reveals that while on patrol they saw the injured party on the street; that he had been stabbed in the stomach with a sharp instrument and was bleeding; that after getting the description of three men, they arrested three men of the same description twenty minutes later one block away after they attempted to flee; that each man had a knife with a four inch blade in his pocket, and that the knife on one of appellant’s companions had stains on the blade which appeared to be blood; that, while testifying, the officers identified the appellant as one of the men they had arrested.

Testifying in his own behalf, the appellant stated that he was not present at the time of the robbery and did not participate in it; that he was at a drive-in when taken into custody along with two other men; that at the time of the arrest he was carrying a pocket knife similar to the one exhibited to him that had been introduced in evidence.

The evidence is sufficient to support the conviction.

As grounds for reversal, the appellant in his brief complains of the admission of hearsay testimony, the leading questions used by the state, the lack of effective cross-examination of the prosecuting witness, and that he was deprived of the effective assistance of counsel.

The grounds urged as error have been examined and considered in light of the record before us, and it is concluded that none of them present reversible error.

The judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Roy David TOWNSEND, Appellant, v. The STATE of Texas, Appellee.
    No. 40349.
    Court of Criminal Appeals of Texas.
    May 3, 1967.
    Rehearing Denied June 14, 1967.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is drunk driving; the punishment, 3 days in jail and a fine of $100.

No copy of a sentence was included in the record as required by Art. 40.09, Section 1, Vernon’s Ann.C.C.P.

Also, it appears that appellant is at liberty under a recognizance on appeal and attention is directed to the fact that there is no provision for a recognizance in the 1965 Code of Criminal Procedure.

The appeal is dismissed.


text:
    Dick CLARDY, Appellant, v. The STATE of Texas, Appellee.
    No. 40377.
    Court of Criminal Appeals of Texas.
    May 31, 1967.

      Gib Callaway, Brownwood, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The appeal is from a conviction for possession of whiskey and vodka in a wet area for the purpose of sale without a license. (Art. 666-4(a) Vernon’s Ann.P.C.)

Trial was before the court on a plea of not guilty. The trial judge found appellant guilty and assessed his punishment at a fine of $50.

The punishment for the offense for which appellant was tried and found guilty is found in Article 666-41 V.A.P.C., the minimum punishment being a fine of $100. Hill v. State, 164 Tex.Cr.R. 146, 297 S.W.2d 679; Skaggs v. State, 157 Tex.Cr.R. 195, 247 S.W.2d 906; Shafer v. State, 151 Tex.Cr.R. 558, 209 S.W.2d 599.

The punishment assessed by the court being less than the minimum provided by law, the judgment will be reversed on appeal. Gassoway v. State, Tex.Cr.App. 385 S.W.2d 386, and cases cited; Simmons v. State, 156 Tex.Cr.R. 601, 245 S.W.2d 254; Rutherford v. State, 79 Tex.Cr.R. 605, 187 S.W. 481.

The judgment is reversed and the cause remanded.


text:
    Ex parte Randolph G. GREEN.
    No. 40376.
    Court of Criminal Appeals of Texas.
    May 17, 1967.
    No attorney of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is an extradition proceeding. The warrant of the Governor of Texas was introduced which recited appellant was charged with the offense of burglary as shown by application, information, affidavit and allied papers. The warrant is regular on its face and is sufficient for extradition. Ex parte Escarrega, Tex.Cr.App., 388 S.W.2d 192. See Article 51.13, Vernon’s Ann. C.C.P., § 8, and the cases collated.

The district judge did not err in ordering appellant to be delivered to the agent of the State of Colorado for extradition.

The judgment of the trial court is affirmed.


text:
    Lawrence Pat SCHMEIDEBERG, Appellant, v. The STATE of Texas, Appellee.
    No. 40056.
    Court of Criminal Appeals of Texas.
    May 3, 1967.
    Rehearing Denied June 14, 1967.
    Carl E. F. Dally, Houston (By Court Appointment on Appeal Only), of Briscoe, Dally & Shaffer, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Gerald Applewhite, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

Our prior opinion affirming the conviction is withdrawn.

The indictment alleged the offense of robbery by assault and for enhancement of punishment alleged two prior convictions.

The jury found appellant guilty of the primary offense of robbery and the defendant elected to have the same jury assess the punishment.

The jury, being authorized by the court’s charge to do so, found that appellant had been convicted “of the offense of burglary as alleged in paragraph 2 of the indictment,” and assessed his punishment “as prescribed by law” at confinement in the penitentiary for life.

The second conviction alleged for enhancement purposes was not submitted in the court’s charge.

It is apparent that the indictment was drawn for the purpose of enhancing the punishment under Art. 63, Vernon’s Ann. P.C. by reason of two prior convictions for felonies less than capital, and punishment was enhanced under the provisions of Art. 62 P.C. by reason of a prior conviction “of the same offense, or one of the same nature.”

The prior conviction alleged in the indictment and referred to in the jury’s verdict was for the offense of “Burglary.”

The indictment did not allege in terms that said prior conviction was for the same offense or was for an offense of the same nature, or was a like offense, nor did the indictment allege that the prior conviction was for burglary with intent to commit the crime of theft.

Burglary with intent to commit theft and robbery are offenses of the same nature. Davis v. State, 167 Tex.Cr.R. 524, 321 S.W.2d 873; Ex parte Ranels, 155 Tex.Cr.R. 560, 237 S.W.2d 317; Farris v. Texas, 155 Tex.Cr.R. 261, 233 S.W.2d 856; Branch’s Ann.P.C.2d Ed., Sec. 698.

In Farris v. Texas, 155 Tex.Cr.R. 261, 233 S.W.2d 856, this Court held that the only burglary that is an offense of like character to robbery would be a burglary with intent to steal, but held that the allegation that the prior conviction was “for the offense of Burglary, an offense of the same nature as charged in paragraph 1 (robbery by assault)” was sufficient.

The same rule was applied in Tucker v. State, 155 Tex.Cr.R. 304, 234 S.W.2d 877.

In the absence of allegations from which the court could determine as a matter of law that the prior conviction was for the same offense or an offense of the same nature or a like offense to the felony offense charged in the indictment, the conviction with punishment enhanced under Art. 62 P.C. cannot stand. Fairris v. State, 171 Tex.Cr.R. 416, 350 S.W.2d 935.

The judgment is reversed and the cause remanded.


text:
    Ex parte Charles WILKINSON.
    No. 40476.
    Court of Criminal Appeals of Texas.
    May 24, 1967.
    Will Gray, Houston, for petitioner.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is an original Habeas Corpus proceeding by an inmate of the Texas Department of Corrections seeking release from further confinement under cumulated sentences pronounced January 1, 1949, for the maximum of 25 years.

The petitioner has credit for more than 20 years on such sentences. His present confinement is under a 5 year sentence in Cause No. 60850 in Criminal District Court No. 2 of Harris County which contains the provision “Sentence cumulative with No. 60851, as to the defendant Charles Wilkinson * *

The conviction in Cause No. 60851 was not in the same court, but was in Criminal District Court of Harris County.

The sentence not having been imposed in the same court, the cumulative provision by reference to number only is ineffective.

The 5 year sentence having been served concurrently with the validly cumulated 10 year sentences, petitioner is entitled to release. Ex parte Lewis, Tex.Cr.App., 414 S.W.2d 682; Ex parte McClain, 158 Tex. Cr.R. 115, 253 S.W.2d 863; Ex parte Whitley, 171 Tex.Cr.R. 280, 347 S.W.2d 721; Ex parte Hamilton, 163 Tex.Cr.R. 283, 290 S.W.2d 673; Ex parte Lucas, 161 Tex.Cr.R. 144, 275 S.W.2d 816; Ex parte Snow, 151 Tex.Cr.R. 640, 209 S.W.2d 931.

The petition for writ of habeas corpus is granted and petitioner is ordered released from further custody under the 5 year sentence in Cause No. 60850 in Criminal District Court No. 2 of Harris County.


text:
    Luke Joseph RENER, Appellant, v. The STATE of Texas, Appellee.
    No. 40389.
    Court of Criminal Appeals of Texas.
    May 24, 1967.
    No attorney of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is attempt to commit burglary; the punishment, 4 years.

Trial was before the court on a plea of guilty.

The record is before us with no transcription of the evidence or bills of exception.

The punishment for the offense of attempt to commit burglary is not less than 2 nor more than 4 years confinement in the Texas Department of Corrections (Art. 1402, Vernon’s Ann.P.C.).

The judgment recites that the court assessed appellant’s punishment at 4 years.

The sentence failed to give effect to the indeterminate sentence law (Art. 42.09, Vernon’s Ann.C.C.P.). It is reformed so as to order appellant’s confinement in the Texas Department of Corrections for a term of not less than 2 years nor more than 4 years.

As reformed, the judgment is affirmed.


text:
    Ex parte Martha Frances MORELAND.
    No. 40444.
    Court of Criminal Appeals of Texas.
    May 24, 1967.
    Tom Parker, Midland, for relator.
    James A. Mashburn, Dist. Atty., Midland, for respondent.
   OPINION

WOODLEY, Presiding Judge.

This is a habeas corpus proceeding seeking discharge from confinement under an order adjudging petitioner in contempt for refusing to answer a question propounded to her as a witness before the Grand Jury. We set the case for submission on the question of whether the writ should issue, and fixed bail.

The Grand Jury was inquiring into a criminal accusation against petitioner’s husband, Oliver James Moreland, who had been charged by complaint with statutory rape of his stepdaughter, the ten year old child of petitioner.

While the record reflects that petitioner filed the complaint, counsel who argued the case agree that she was not in fact the complaining witness who signed and swore to it, though she actively participated in the investigation and sought the initiation of the criminal charge against her husband.

Prior to the 1965 Code of Criminal Procedure it was provided (in Art. 714 Vernon’s Ann.C.C.P.1925)

“The husband and wife may, in all criminal actions, be witnesses for each other; but they shall in no case testify against each other except in a criminal prosecution for an offense committed by one against the other.”

Construing the provisions of Art. 714 and the prior statute to the same effect, this Court held that the wife of the defendant charged with an assault upon her was a competent witness and, when called by the state, could be compelled to testify. Bramlette v. State, 21 Tex.App. 611, 2 S.W. 765; Calloway v. State, 92 Tex.Cr.R. 506, 244 S.W. 549, 555; Alonzo v. State, 15 Tex.App. 378; Dumas v. State, 14 Tex.App. 464.

Art. 605 of the Vernon’s Ann. Penal Code provides that in prosecutions under Chapter Three relating to wife and child desertion:

“Both husband and wife shall be competent and compellable witnesses to testify against each other to any relevant matter including the fact of such marriage, and the parentage of such child or children.”

The statute which was adopted as a part of the 1965 Code of Criminal Procedure which we are called upon to construe is Article 38.11 which reads in part:

“The husband and wife may, in all criminal actions, be witnesses for each other, but except as hereinafter provided, they shall in no case testify against each other in a criminal prosecution. However, a wife or husband may voluntarily testify against each other in any case for an offense involving any grade of assault or violence committed by one against the other or against any child of either under 16 years of age, or in any case where either is charged with incest of a child of either, or in any case where either is charged with an offense defined in Chapter Three of the Penal Code of Texas pertaining to wife or child desertion or wilful failure or refusal to support his or her minor children.”

It appears that, whereas Article 605 of the Penal Code provides that the wife or husband shall be “competent and compella-ble” witnesses to testify against each other in prosecutions for offenses defined in Chapter Three of the Penal Code, the new statute (Art. 38.11 C.C.P.1965) provides that in such prosecutions the wife or husband “may voluntarily testify against each other.”

Art. 38.11 of the 1965 Code of Criminal Procedure makes no distinction between prosecutions for wife or child desertion; assault or violence committed by one spouse against the other; assault upon a child of either under 16; and incest of a child of either. In each of such prosecutions, Art. 38.11 C.C.P. declares that the wife or husband may voluntarily testify against the other.

There would seem to be no doubt that the legislature had authority to change the rule relating to whether a competent witness could be compelled to testify. This was done as regards the wife or husband by the enactment of Art. 38.11 providing that in the prosecutions referred to therein they may voluntarily testify against each other, though in some of such prosecutions they were theretofore “compellable” as well as competent witnesses.

We are in accord with the view that the husband or wife who voluntarily testified against the other in a criminal prosecution in which he or she is a competent witness becomes a voluntary witness and may thereafter be compelled to testify as any other witness. We also agree with the trial court that this rule would apply where the wife or husband voluntarily swears to the complaint against the other.

As to criminal accusations referred to in Art. 38.11 C.C.P. the husband or wife is “a credible witness” competent to make complaint against the other, as well as to “voluntarily testify” in the case as a witness.

We cannot ascribe to the legislature the intent to permit the wife or husband to “make a statement under oath” instituting the criminal prosecution, and thereafter elect whether or not to testify when called by the state.

The petitioner not having voluntarily testified or made affidavit against her husband, the trial court erred in adjudging her in contempt for refusing to testify against him in a case involving an assault committed by him against her child under 16 years of age.

The writ is granted and petitioner is ordered released from custody under the commitment for contempt.


text:
    Leo SMOTHERMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 40328.
    Court of Criminal Appeals of Texas.
    May 10, 1967.
    Rehearing Denied June 14, 1967.
    Jack J. Rawitscher, Dixie & Schulman, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Richard M. DeGuerin and Frank Price, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., of Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

Tried before the court on his plea of not guilty, appellant was found guilty and assessed a fine of $50 for the violation of Art. 1350 Vernon’s Ann.P.C. which defines the offense of injury to property belonging to another.

The complaint and information alleged that on or about March 21, 1966, appellant and another wilfully injured an automobile belong to Clinton Fontenot without his consent by bending the door of said automobile, the extent of the injury to said property being of the value of less than $50.

Severance was granted.

The state introduced evidence sufficient to show that the door of the automobile being driven by one Mike Robertson and occupied by Clinton Fontenot’s 18 year old stepson, Charles Kenneth Quinn, was struck by a bottle thrown by appellant and the door was injured by being bent or dented.

Clinton Fontenot testified that he purchased the automobile and had certificate of title to it, and that he did not give appellant consent and permission to dent or injure the automobile.

Both Fontenot and his stepson gave testimony to the effect that Fontenot had given the automobile to his stepson, Charles Kenneth Quinn, on certain conditions but did not transfer the title and after the injury was inflicted he took possession of it when his stepson ceased to perform his obligation.

In his brief filed in the trial court appellant first contends that his plea of former acquittal should have been sustained.

In the former trial appellant was tried under an information which alleged wilful injury on his part to an automobile owned by Charles Kenneth Quinn and he was acquitted. The certified copy of said information appears as Defendant’s Exhibit No. 1 at the hearing on the motion to quash on the ground of former acquittal. We note on the back of said information the notation “Instructed verdict not guilty— ownership in wrong person.”

In the case at bar, the information alleged wilful injury on the part of appellant to an automobile belonging to Clinton Fontenot. The evidence necessary to support the information in the case at bar would not have been sufficient to sustain a conviction upon the first information. Appellant’s contention is overruled.

The rule appears to be that if the name of the injured party in the two indictments or informations is not the same, the plea of former acquittal is ordinarily bad on its face. 1 Branch’s Ann.P.C.2d, Sec. 652; Kinney v. State, 67 Tex.Cr.R. 175, 148 S.W. 783; Davidson v. State, 40 Tex.Cr.R. 285, 49 S.W. 372.

Appellant’s other contention is that there was a fatal variance between the information and the proof offered relating to ownership.

The evidence is sufficient to sustain a finding by the court that the automobile belonged to Clinton Fontenot at the time it was injured without his consent.

The judgment is affirmed.


author: O’QUINN, Justice.

text:
    TRANS-COLD EXPRESS, INC., Appellant, v. James HARDIN, Appellee.
    No. 11493.
    Court of Civil Appeals of Texas. Austin.
    May 10, 1967.
    Rehearing Denied May 31, 1967.

      Passman, Jones, Stewart, Andrews & Hunter, Bill C. Hunter, Dallas, for appellant.
    James, Ingram & Glenn, Tom James, Dallas, for appellee.
   O’QUINN, Justice.

Appellant contracted with appellee to get a truckload of dressed lambs hauled from San Angelo, Texas, to Brooklyn, New York, in May, 1963. Appellee hauled the lambs to New York, and appellant brought suit claiming the cargo was damaged by spoilage while in the hands of appellee in breach of the contract. Appellee answered with a counter-claim for freight charges and denied that the cargo was damaged before delivery to the consignee in New York.

The cargo of lambs belonged to Armour and Company at San Angelo and was consigned to H. C. Bohack Company in Brooklyn. Appellant, Trans-Cold Express, Inc., was the carrier, with the appellee, James Hardin, the contractor engaged by appellant to do the hauling.

After trial before the district court without a jury, the court found against Trans-Cold Express, Inc., on its suit and entered judgment for James Hardin in the amount of $1,188.42 on his cross-action. Trans-Cold Express has appealed.

The written contract under which appel-lee moved the lambs for appellant from San Angelo to Brooklyn was made April 24, 1963. The contract provided that appellee would pay for any shortage or loss of cargo transported and for damage to the cargo.

Appellee loaded the cargo of 575 dressed lambs weighing 28,626 pounds at San Angelo May 15, 1963, under schedule to deliver the lambs to Bohack Company in Brooklyn by midnight of Sunday, May 19. Appellee arrived in Brooklyn at the Bo-hack address about 2 o’clock Sunday afternoon and tried to unload the meat, but was instructed by Bohack employees to wait until next morning, May 20, before unloading. Next morning, beginning about 8 o’clock, appellee started unloading at the instance of Bohack employees.

After some thirty lambs had been placed on racks and rails, and rolled out on the dock at Bohack’s plant so the meat could be put into refrigeration by Bohack employees, the unloading stopped. The unloaded meat remained on Bohack’s dock, without refrigeration, until about 11 o’clock, when appellee was told that Bohack refused to accept the shipment. Appellee was instructed to reload the lambs he had taken out.

Appellee reloaded the thirty lambs and advised Armour and Company, at its Fort Greene Place location in New York, that Bohack had refused delivery. Armour instructed appellee to drive the meat to Armour. Appellee arrived at Armour about 12 o’clock noon, and around 2 o’clock that afternoon Armour made an inspection of the thirty lambs that had been unloaded and re-loaded at Bohack’s dock that morning. The inspection consisted of taking the temperature of the meat and examining it for discoloration and “tackiness.”

It was shown at the trial that dressed lamb of the nature transported by appellee should be kept under refrigeration at a temperature of 36 to 38 degrees. Temperatures above 38 degrees cause the meat to get pink and turn sweaty and slick, producing a condition known in the industry as “tacky.”

The inspections at Armour were made in the presence of appellee who confirmed the findings. The thirty lambs inspected showed a temperature ranging from 44 to 50 degrees and were found to be wet and tacky in places. No readings were made on the balance of the lambs.

Later in the afternoon another inspection was made by a contract inspector who found temperatures from 40 to 45 degrees and an overall poor condition of the lambs, rendering the meat not fit for human consumption “without reconditioning.”

Armour caused about three-fourths of the meat to be unloaded at its plant and directed appellee to deliver the remaining one-fourth to Salmon and Company in New York.

The record shows that Armour made a claim to appellant, and appellant paid it, in the amount of $2,887.40, being the difference between the market value of the cargo at its destination in the sum $12,810.00 and the sale price of $9,922.60. Appellant sued appellee for $1,698.98, which was the amount of the Armour claim of $2,887.40, less an offset of $1,188.42. Appellee filed a cross-action for hauling charges in the sum of $1,313.93, plus reasonable attorney’s fees of $750.

The cause was tried before the court without aid of. a jury on April 21, 1966, and the court entered judgment June 20, 1966, decreeing that appellant, Trans-Cold Express, Inc., take nothing by its suit and awarding judgment for $1,188.42 to ap-pellee, James Hardin. Upon request the trial court made and filed findings of fact and conclusions of law. Trans-Cold Express, Inc., perfected the appeal now before this Court.

Appellant predicates its appeal on ten points of error and presents them in three groups. (1) Points one through five are directed to the issue of when appellee’s duty to protect the cargo ended. (2) Points six through eight assign error of the trial court in excluding the written claim of Armour and Company. (3) Points nine and ten assert the contention that even if appellant used the wrong measure of damages, appellant was entitled to nominal damages, and the cause should be remanded to permit appellant to prove substantial damages.

We overrule all the assignments of error and will discuss them by the groups and in the order presented by appellant.

That the cargo was delivered to appellee in San Angelo in good condition appears to be without dispute. Appellee testified, and there is no evidence to the contrary, that he maintained a temperature of 36 to 38 degrees en route to New York. There is no contention that dressed lambs deteriorate while under refrigeration except at temperatures higher than 38 degrees. The first evidence of temperatures higher than 38 degrees came from Armour’s inspection, at 2 o’clock in the afternoon, of the thirty lambs that had been unloaded at 8 o’clock that morning on Bohack’s dock.

Appellant relies upon the holding of the Supreme Court of Texas in Missouri Pacific Railroad Company v. Elmore and Stahl, 368 S.W.2d 99 (Tex.1963) for the proposition that the carrier is liable for damage to an interstate shipment of inanimate perishables when the cargo is delivered to the carrier in good condition and is in a damaged condition when delivered at the destination. We are unable to agree that this holding is in point under the facts of the case at bar.

In the Missouri Pacific case, supra, 640 crates of honeydew melons were shipped from Rio Grande City, Texas, to Chicago, Illinois. There it was undisputed that when delivery at destination was made the damage had already occurred.

In the case before this Court there is no evidence of damage to the dressed lambs when appellee arrived at Bohack Company in Brooklyn Sunday afternoon and offered to unload the cargo; nor is there evidence of damage at 8 o’clock next morning when Bohack told appellee to start unloading on Bohack’s dock. The unloading, for reasons not clear from the record, did not continue, but Bohack did not refuse delivery of the cargo until 11 o’clock, some three hours later. But at this time there appears to have been no evidence of damage to the cargo. The first evidence, as already pointed out, developed with the inspection at Armour’s plant, six hours after appellee started unloading on the Bohack dock.

Appellant argues that- appellee never delivered the cargo to Bohack, the consignee, and that Bohack never accepted the cargo. Appellee takes the position that delivery was made when appellee backed his truck up to Bohack’s dock, the destination specified in the bill of lading, and upon Bohack’s express assent started unloading. At this point, appellee contends, appellee’s duty as a carrier ended.

The trial court, in finding for appellee, concluded that damage to the meat resulted from failure of Bohack to accept delivery when tendered, and that appellee had not breached the contract.

In cases involving delivery by railroads the rule is that if the cars containing the goods 'consigned are spotted on a private siding of the consignee, and the consignee has a right to unload at any time, delivery of the cargo by the carrier to the consignee is complete. United Firemen’s Ins. Co. v. Thompson, Tex.Civ.App., Galveston, 259 S.W.2d 612 (writ, ref., n. r. e.). In general, if the carrier safely transports the consigned goods to the consignee at the destination specified, the carrier’s liability as such is terminated by refusal of the consignee to accept delivery at the place named in the contract. Finck Cigar Factory v. American Ry. Express Co., Tex.Civ.App., Galveston, 283 S.W. 219 (no writ); 149 A.L.R. 1118, and cases cited.

Under the facts of this cause there is authority for holding that the role of appellee as carrier terminated Sunday afternoon at 2 o’clock, May 19, when he arrived at Bohack Company and offered to unload. The hill of lading called for delivery at the Bohack Brooklyn plant May 19 before midnight. Bohack’s employees refused to permit appellee to unload when he arrived and told him he would have to wait until next morning.

The rule is stated in American Jurisprudence that, “Where goods have arrived at their destination, and at the request and for the convenience of the consignee are allowed to remain in the custody of the carrier, its liability as an insurer of the goods ceases and becomes thereafter that of a warehouseman or a depositary.” 13 Am.Jur.2d, Carriers, sec. 404, p. 887. See also discussion and cases cited under “postponement of acceptance” in 149 A.L.R. 1118, 1120-22.

In Missouri Pacific Railroad Co. v. Elmore and Stahl the Supreme Court, dealing with an interstate shipment, determined liability of the carrier by federal statutes and decisions. 368 S.W.2d 99, 101, col. 2. We find General American Transportation Corporation v. Indiana Harbor Belt Railroad Company, U. S. Circuit Court of Appeals (Seventh Circuit) 191 F.2d 865, authority for holding appellee’s responsibilities as carrier were terminated by refusal of Bohack to let him unload Sunday after he arrived in Brooklyn. This case involved shipment of sixty-six carloads of knocked-down French box cars manufactured in Indiana and consigned to an agency of the French government at Galveston, Texas, for trans-shipping overseas. After arrival in Galveston, the cars were diverted to Texas City, on order of consignee, to be held in a terminal for shipment by sea. The sixty-six cars while still in custody of the carrier were damaged or destroyed by the Texas City explosions and fires in April, 1947.

The court held that, the cargo having arrived at its destination, the carrier’s liability as an insurer of the property ceased when, at the request and for the convenience of the consignee, the shipment remained in the custody of the carrier. In this lawsuit Bohack refused to accept delivery on the day and at the place named in the bill of lading and left the truckload of lambs in the hands of appellee until next morning. It seems apparent that the delay was for the convenience of the consignee.

Appellant argues that mere arrival of the goods at the destination does not reduce the liability of the carrier to that of a warehouseman if anything remains to be done by the carrier to effectuate delivery, relying upon the holding of Keystone Motor Freight Lines v. Brannon-Signaigo C. Co., U. S. Court of Appeals, Fifth Circuit, 115 F.2d 736. In that case a quantity of cigars were shipped from New Orleans, Louisiana, to Dallas, Texas. The usual custom of the parties was to ship on Friday and make delivery Saturday morning. The carrier was delayed en route and did not arrive until Saturday afternoon, when the consignee’s business was closed. While being held over the week-end awaiting delivery on Monday, the cigars were stolen.

The court held that the consignee was entitled to a reasonable opportunity to take or receive the property from possession of the carrier after transit was terminated. The court found that the closing of the consignee’s business on Saturday afternoon resulted from a business custom long followed, and was not an isolated act designed to defeat delivery. The fact the business was so closed was sufficient to defeat the claim of tender of the shipment Saturday afternoon. In the case at bar Bohack had two reasonable opportunities to take or receive the shipment of lambs, the first on Sunday afternoon, when delay forced by Bohack defeated delivery, and the second on Monday morning when Bohack told appellee to put the cargo on Bohack’s dock. It is immaterial to the results in this case whether the tender on Sunday afternoon or the unloading started Monday morning served to relieve appellee of his role as carrier and reduced his duty to that of a bailee. At neither time was there any showing of damage to the cargo. All the evidence of damage establishes the state of the cargo six to twenty-four hours after appellee had discharged his contract as a carrier. There is no showing that the condition of the meat when inspected Monday afternoon related back to the time the cargo was in transit.

The bill of lading relating to the shipment of lambs, dated May 15, 1963, the day ap-pellee left San Angelo, was issued by Armour and Company as consignor, to H. C. Bohack, as consignee, with appellant as the carrier. This instrument purports to be a Uniform Bill of Lading, with provision under section 4 for disposition of perishable property refused by consignee after carrier has transported the cargo to destination. Under this section the carrier is authorized to sell the cargo “to prevent deterioration or further deterioration,” or, before selling, the carrier may notify the consignor and ask for disposition. Appellee, acting under the bill of lading, notified Armour in New York and was directed to deliver the cargo to Armour, which appellee accomplished approximately within the next hour.

If inanimate perishables, delivered to the carrier in good condition, are found in a damaged condition when delivered at destination, the carrier can escape responsibility for the damage only by showing that the damage was caused solely by an act of God, the public enemy, fault of the consign- or, or the inherent nature of the cargo itself. Missouri Pacific Railroad Co. v. Elmore and Stahl, supra. Appellant argues that without question the lambs were in damaged condition when appellee delivered them to Armour following Bohack’s refusal to accept delivery, and that the rule stated is applicable. We cannot agree. The rule applies where damage is found at the time of delivery, to the consignee, and at the destination named in the bill of lading.

The damaged condition of the lambs was established for the first time at the Armour plant, not at Bohack Company, with an inspection made two hours after the lambs were delivered to Armour, three hours after Bohack refused delivery, and six hours following placement of the first meat on Bohack’s racks to be refrigerated. The inspection also was 24 hours after appellee arrived at destination and attempted to make delivery to Bohack but met with delay imposed by Bohack. The trial court found that at the time Bohack refused delivery, about 11 o’clock, complaint was made to appellee concerning the condition of the thirty lambs that had remained on Bohack’s dock since about 8 o’clock without refrigeration, but no complaint was made about condition of the meat still in appellee’s trailer.

We conclude that delivery was made at the destination in a manner sufficient to remove appellee from the status of carrier and insurer of the cargo. Tender of the cargo at its destination to the consignee, followed by actual delivery to the dock of a portion of the cargo, constituted delivery as a matter of law, and served to terminate appellee’s responsibilities as a carrier and reduce his liability to that of an ordinary bailee or warehouseman. The record does not show any evidence of damage to the cargo at that time.

Appellant apparently seeks to hold appellee on their contract of April 24, 1963, even after his role was reduced to that of warehouseman. With respect to the unloaded portion of the lambs, appellee as contractor for the carrier had performed his contract with appellant. The unloaded lambs were on Bohack’s dock to be refrigerated by Bohack, and were no longer a part of the cargo transported. There is no evidence that the cargo remaining in the trailer was damaged at all. At the time of delivery the issue of liability and duty for shipment was under the terms of the bill of lading for refusal of a perishable cargo. The record shows that appellant paid the claim of Armour, but did not assert any contractual right against Bohack. Appellant’s liability to Armour, upon refusal of delivery by the consignee, was'defined by the bill of lading providing for disposition of perishable goods. Appellee followed this provision by notifying Armour immediately after Bohack refused delivery, and in compliance with Armour’s directions, delivered the cargo to Armour about an hour later. Payment of the Armour claim was purely voluntary, without legal requirement, and appellant may not now look to appellee as indemnitor to reimburse appellant. Mitchell’s, Inc. v. Friedman, 157 Tex. 424, 303 S.W.2d 775.

Under assignments six through eight appellant asserts error in excluding the written claim of Armour with various attachments. The written claim, with seven attachments, including the contract inspector’s report, was offered in its entirety as Exhibit No. 7 on the theory it was admissible under Article 3737e, (Vernon’s Ann.Tex.Sts.) as a business record.

The trial court rejected the attachments which apparently were prepared by several persons, none of whom was before the court in person or by deposition to identify the writings. The attachments were not business records of either appellant or Armour. Statements contained in the attachments as to damages were hearsay. Olive and Stirnenberg v. Hester, 63 Tex. 190; Housley v. Strawn Merchandise Co., (Tex.Com.App., 1927), 291 S.W. 864; Panhandle and Santa Fe Ry. Co. v. McDonald, Tex.Civ.App., Eastland, 227 S.W.2d 601 (writ ref.).

Appellant failed to prove, by the witness through whom Exhibit No. 7 was offered, the essential elements to establish the exception to the hearsay rule. There was no proof made that the various documents attached to Armour’s claim were made in the regular course of business, at or near the time of the acts or conditions sought to be shown, or reasonably soon thereafter, by employees or agents customarily making such records or customarily transmitting information to be placed in the records, and who had personal knowledge of the acts or conditions recorded. Exhibit No. 7, with attachments, was properly excluded by the trial court. 23 Tex.Jur.2d, Evidence, Sec. 330, p. 481.

Exclusion of Exhibit No. 7 was harmless, even if it had been error. The parties had stipulated as the amount of the Armour claim and to the fact appellant had paid the claim in full. The deposition of the contract inspector reflecting the results of his examination of part of the cargo on Monday afternoon was admitted over objection.

Appellant contends under assignments nine and ten that the trial court erred in not awarding damages, even if nominal, for breach of the contract of April 24, 1963, between appellant and appellee. The trial court concluded appellee had not breached the contract. The greater weight of the evidence shows that the lambs appellee transported were not damaged at the time of delivery. Appellant did not sustain the burden properly on it to show a breach of duty by appellee in performance of the contract, and the cause of action does not arise if proof is not made. G. & M. Products Corporation v. Clayton Specialties, Inc., Tex.Civ.App., Houston, 386 S.W.2d 843 (no writ).

The judgment of the district court is affirmed.

Affirmed.