author: WOODLEY, Judge. DICE, Judge. MORRISON, Judge BELCHER, Judge.

text:
    Harold Lloyd CULBERT, Appellant, v. The STATE of Texas, Appellee.
    No. 39932.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1966.
    Rehearing Denied Jan. 18, 1967.
    Dissenting Opinion on Denial of Rehearing March 8, 1967.
    Second Rehearing Denied May 10, 1967.
    Third Rehearing Denied June 21, 1967.

      Will Gray (on appeal only), Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Richard M. DeGuerin and Joe Shaffer, Asst. Dist. Attys., Houston, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is felony theft; the punishment, enhanced by two prior convictions for a like offense (Art. 63 Vernon’s Ann. P.C.), life.

Trial was had and notice of appeal given prior to January 1, 1966.

The indictment alleged theft of two automobile tires and wheels of the value of over $50.00 from J. R. Gage; and for the purpose of enhancing the punishment, alleged that prior to the commission of said theft appellant was convicted of felony theft in Criminal District Court of Harris County on March 10, 1961, in Cause No. 92171, and that after such conviction had become final he committed the offense of theft, a felony, and on April 26, 1963, was convicted of said offense in Cause No. 105178 in Criminal District Court of Harris County, Texas.

The sufficiency of the evidence to sustain the conviction is conceded by appellant’s brief and need not be set out. Suffice it to say that appellant was seen driving away from the car lot where two tires and wheels of the value of $50.00 had been removed without the consent of and unknown to the owner; appellant’s fingerprints were found on the jack used to raise the car from which the tires and wheels had been removed, and two tires and wheels which fit the description of those stolen were found in the car which appellant drove away from the car lot.

The prior convictions alleged for enhancement of punishment were proved by records of the Texas Department of Corrections, including certified copies of the judgments and sentences, photographs and fingerprints, and testimony identifying such fingerprints and photographs as those of the appellant.

The sole question raised on this appeal is the sufficiency of the evidence to support the allegation of the indictment that the conviction in 1963 was for an offense committed after the judgment of conviction in 1961 had become final.

An examination of the Statement of Facts, agreed and certified as full, true and correct, reveals no evidence as to when the offense of theft for which appellant was convicted on April 26, 1963 was committed.

Criminal Investigator J. T. Stevenson, of the Harris County Sheriff’s Office, was called as a witness and testified that he was employed in that capacity in 1963. He was told that appellant was convicted in the cause alleged and that the location was 1621 Milam. He was then asked and answered :

“Q. Tell the jury the date on which the offense occurred the items that were involved in that offense?
“A. Tires and wheels and jacks.”

It is apparent that the question as to when the offense was committed was not answered.

We agree with appellant’s contention that the evidence is insufficient to invoke the provision of Art. 63 P.C., but is sufficient to sustain his conviction for felony theft enhanced by a prior conviction for felony theft under Article 62 P.C.

The judgment and sentence are reformed to provide for appellant’s confinement in the penitentiary for a term of ten years. Haines v. State, Tex.Cr.App., 391 S.W.2d 58.

As reformed, the judgment is affirmed.

OPINION ON STATE’S MOTION FOR REHEARING

DICE, Judge.

The state now moves this court to set aside its opinion of December 7, 1966, which affirmed appellant’s conviction for felony theft and reformed the judgment and sentence to provide for confinement in the penitentiary for a term of ten years (enhanced under Art. 62⅜ V.P.C.) and to now affirm the original judgment of conviction with punishment — enhanced under Art. 63, supra — at life imprisonment.

It is insisted that evidence was adduced upon the trial, showing the date of commission of the offense of theft for which appellant was convicted on April 26, 1963, which evidence was inadvertently omitted from the original statement of facts.

In support of its contention, the state relies upon an instrument filed in this court on December 21, 1966, in the cause, styled “Certification of questions and answers inadvertently omitted from original statement of fact_” Such instrument, certified to by the official court reporter who took the proceedings in the cause in shorthand, contains an agreement signed by appellant’s trial counsel and counsel for the state in which counsel agree

“that the above and foregoing certification of questions and answers inadvertently omitted from original Statement of Facts in said Cause is correct and should be included in the previously approved Statement of Facts in said Cause had upon the trial before the Honorable Fred M. Hooey, Judge of the Criminal District Court No. 6 of Harris County, Texas — at the time and place as shown by the Caption thereto on Page One.”

Under the authority of Angle v. State, 165 Tex.Cr.R. 305, 306 S.W.2d 718, the original statement of facts and the questions and answers, now certified to as having been inadvertently omitted therefrom, will be considered in passing upon the state’s motion for rehearing.

As now presented, the record reflects that on direct examination the state’s witness J. T. Stevenson, referring to the 1963 conviction, testified — among other things— as follows:

“Q Tell the jury the date on which the offense occurred, the items that were involved in that offense ? A It was on the 13th of February in 1963.
“Q That was the date on which the offense occurred? A Yes, sir, the night of the 13th.”

It thus appears that the witness did testify as to when the offense was committed and that it was committed on February 13, 1963, which was after appellant’s conviction in 1961 became final.

The proof offered by the state authorized the enhancement of appellant’s punishment under Art. 63, supra.

The state’s motion for rehearing is granted, our order reforming the judgment and sentence is set aside, and the original judgment of conviction for felony theft, with punishment enhanced under Art. 63, supra, at life imprisonment, is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge

(dissenting).

The majority overrules without written opinion, but Judge ONION and the writer are convinced that appellant’s motion for rehearing should be granted and will explain our reasons. Angle v. State, supra, cited in the original opinion did not involve the supplementation of a record while the case was in this Court. The original unpublished opinion in that case declined to consider the statement of facts before us because of what we deemed a faulty approval of counsel. After the original opinion was handed down, it was made known to this Court that Angle’s attorney of record at the trial and on appeal, together with the attorney for the State, did, in fact, agree that the record which was before this Court constituted a complete statement of facts and that there were no additional facts elicited upon the trial on the merits which were not incorporated therein. As it is readily apparent now, Angle v. State, supra, did not involve a supplementation of the record, but an authentication of what was already here. The cases cited in the published opinion of Angle relate to comparable situations, and are of no help to the State in their effort to supplement the record after an opinion has been handed down. While not controlling, we do point out here that the supplementation was approved by appellant’s trial counsel, who, so far as our record appears, was not longer representing appellant, because appellant was represented in this Court by Honorable Will Gray alone.

In McDonald v. State, Tex.Cr.App., 385 S.W.2d 253, this Court had occasion to deal with a supplementation of the record prior to submission on our docket, and the majority concluded that in order to effectively terminate litigation before this Court, we would consider only those statements of facts which were filed with the clerk of the trial court, approved by the trial court, and filed in this Court prior to original submission on our docket. A number of cases were cited in support of such conclusion.

The instrument relied upon in our opinion on ‘Rate’s motion for rehearing does not comply with the rule set forth above, in that it was not filed in this Court until after original submission, and for this reason should not have been considered. The rule announced in McDonald, v. State, 385 S.W.2d 253, is consistent with this disposition.

The case before us does not involve a question of constitutional dimension and therefore, the holding of the Supreme Court of the United States in Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, has no application. See White v. State, Tex.Cr.App., 410 S.W.2d 440.

We respectfully dissent to the overruling of appellant’s motion for rehearing.

OPINION ON APPELLANT’S SECOND MOTION FOR REHEARING

BELCHER, Judge.

Appellant urges that the majority opinion is not supported by Angle v. State, supra, because the only correction of the statement of facts in Angle was by way of affidavits of the attorneys who approved the record.

In Angle this court considered the statement of facts shown to be complete by such affidavits “In fairness to appellant” and said:

“While there are cases which would appear to support a contrary holding, we have decided that the additional evidence that has come into the record by way of affidavits of the attorneys who approved the statement of facts is available and that under the present record the statement of facts may be considered.”

To consider this record in which a clerical error relating only to the date of a prior offense resulting in a conviction used for enhancement has been corrected is consistent with our holding in Angle.

It is noted that the Supreme Court of the United States in its opinion in Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, set the precedent, that appellate courts are no longer bound in all cases to confine themselves to the record on appeal sent up from the trial court.

Appellant’s second motion for rehearing is overruled.

MORRISON, and ONION, JJ., dissent to the overruling of appellant’s second motion for rehearing.


source: Caselaw Access Project

author: WOODLEY, Presiding Judge. ONION, Judge

license: Public Domain

text:
    Vincent Alfonso ZULPO, Appellant, v. The STATE of Texas, Appellee.
    No. 40233.
    Court of Criminal Appeals of Texas.
    May 10, 1967.
    Rehearing Denied June 21, 1967.
    John W. O’Dowd, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Richard M. DeGuerin and Gerald Applewhite, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is indecent exposure to a child (Art. 535c Vernon’s Ann.P.C.); the punishment, 10 years.

Trial was before the court, a jury trial being waived. The plea was guilty.

The defendant’s brief filed in the trial court sets forth three grounds of error.

The first is that the evidence is insufficient to support a conviction in the cause.

Appellant entered into a stipulation of evidence in writing in open court expressly waiving the appearance, confrontation and cross-examination of witnesses and further consenting to the introduction of testimony by affidavits, written statements of witnesses and other documentary evidence.

In said writing in open court appellant waived his Federal and State Constitutional Right against self incrimination and, after having been sworn, upon oath judiqially confessed “to the following facts and agree and stipulate that these facts are true and correct and constitute the evidence in this case: That on or about the twelih (12) day of October, 1965, in Harris County, Texas, I did with lascivious intent, knowingly and intentionally expose my private parts and genital organs to Sharon _ (the child named in the indictment), the said Sharon _ being then and there a female person under the age of sixteen years.”

The transcript of the court reporter’s notes filed in the trial court and included in the record approved by the trial court reflects that, in addition to the defendant’s written waiver of jury trial and his written stipulation of guilt which he had filed with the court, the state offered as an Exhibit the written affidavit taken from the 13 year old girl complainant, and the testimony which the complainant’s companion would have given had she been present and sworn was stipulated.

The stipulated testimony of the two young school girls, as well as the judicial confession of appellant in writing in open court, left no doubt as to the guilt of the appellant of the offense charged.

The transcript of the reporter’s notes further reflects that following the stipulation as to the testimony of the girls, appellant in open court, agreed and stipulated that the factual matters set forth in his stipulation were true and correct as stated; that the matters set forth in the affidavit of the child were true and correct, and that the matters which it was stipulated that her companion would testify, if present, would be true and correct.

Appellant’s second ground of error, that the punishment assessed is excessive, is without merit.

The third ground of error is that the statute under which appellant was convicted is unconstitutional in that it attempts to make a crime out of something that should be and is an illness.

No authority is cited in support of this ground of error and we know of none.

The judgment is affirmed.

ONION, Judge

(concurring in part and dissenting in part).

Judge MORRISON and this writer concur in the results reached by the majority for the judicial confessions of the appellant, one from the witness stand and the other in writing, described by the majority opinion are sufficient to sustain the conviction. Such judicial confessions need no corroboration. Alvarez v. State, Tex.Cr.App., 374 S.W.2d 890.

We cannot agree, however, that the oral stipulations in open court as to the testimony of the complaining witness’s companion on the day in question, and that of a Houston police officer can be considered in passing upon the sufficiency of the evidence. These oral stipulations were reflected only in the untranscribed notes of the court reporter at the time of the entry of the judgment. They were subsequently transcribed and filed in the trial court as a part of the record on appeal six month later. They do not meet the requirements of Article 1.15, C.C.P., which provided as follows :

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

The above quoted article permits a defendant to waive trial by jury and enter a plea before the Court in a felony less than capital, provided the State introduces evidence showing the guilt of the defendant which is then accepted by the Court as a basis for its judgment. A similar provision is found in old Article 12, which is a forerunner of the present article. Nothing was said in old Article 12 about the stipulation of such evidence. This Court, however, in a number of decisions under old Article 12, permitted such evidence to be stipulated if certain requirements were met.

Nevertheless, stipulated evidence continued to be regarded with a degree of suspicion possibly because there is no confrontation of witnesses and no cross-examination of such witnesses, despite the accused’s waiver thereof.

Evidence, stipulated or otherwise, offered by the State to show the guilt of the defendant under old Article 12 did not have to be preserved. Broyles v. State, 143 Tex.Cr.R. 556, 159 S.W.2d 881. Then, as now, stipulations preserved only in the court reporter’s notes can be destroyed after a full year. Article 2324, V.A.C.S.

Often individuals convicted upon their pleas of guilty sought to set aside their convictions by writ of habeas corpus alleging they had no counsel, or ineffective counsel, or that no evidence was introduced, no witnesses appeared, no waiver was entered, and no consent was given to stipulations, etc.

To overcome the type of claims so frequently made by those seeking post-conviction relief the State Bar Committee on the Revision of the Code of Criminal Procedure recommended to the Legislature that Article 1.15 (former Article 12), expressly state that evidence could be stipulated if the defendant consented in writing to do so. Under this recommendation only the consent had to be in writing.

The Texas Senate, during the 59th Legislative Session added an amendment to the proposed revision, as follows: “Such stipulation must be approved in writing by the Presiding Judge who shall determine that the facts stated in the stipulation are true and correct.”

At some time in the legislative process, the changes now reflected in Article 1.15, supra, were agreed upon.

There can be no question that the Legislature intended to make a change in the procedure that existed prior to the effective date of the new Code. A stipulation as to evidence is to be acceptable only if the requirements of Article 1.15, supra, are met. The statute sets the limits of the stipulation and neither the State nor the Defendant can extend or broaden the statutory limits thereof if the Court is to use such evidence as the basis of its judgment.

These new requirements do not have application to any evidence offered by the State except stipulated evidence. Further, Article 1.15, supra, is not to construe to require that the State have, prior to trial, a written statement or affidavit from a witness whose testimony is sought to be stipulated. Such stipulated evidence may take the form of transcribed testimony from a former trial or an examining trial, a chemist’s report of a medical or mental examination, or any written stipulation entered at the time of trial, such as appellant’s written judicial confession in the case at bar, or any other documentary evidence.

It seems clear though that once the trial judge has accepted the stipulated evidence as the basis, in whole or in part, of his j'udgment, then the affidavits, written statements, and other documentary evidence must be filed among the papers of the ■cause “in support of the j'udgment of the ■Court.” Oral stipulations in open court and reflected only in untranscribed court reporter’s notes will no longer meet the statutory test. This is true even though the ■court reporter’s notes may be transcribed some time after the entry of the j'udgment and sentence because notice of appeal is given and the request for their inclusion in the record is made, or because of some other subsequent event. To hold otherwise, would give approval to the use of oral stipulations contrary to the statute when an appeal calls into question their use and the court reporter’s notes are still available, and to denounce their use when the court reporter’s notes have been lost, misplaced, destroyed, or otherwise unavailable. It was to avoid this very dependency upon the availability of the court reporter’s notes as to stipulated evidence that Article 1.15, supra, was enacted.

It is not the function of this Court to set aside the clear intent of the Legislature and by our opinions re-draft this statute to suit ourselves, or to determine what is desirable and necessary, and what is not.

Under the maj'ority opinion the high standards set by the Legislature has been cast aside. By virtue of such opinion, which does not even mention Article 1.15, supra, the State, in possession of affidavits, written statements, and other documentary evidence, will no longer be required to use the same when stipulating evidence, for oral stipulations which somehow find their way into the record after the entry of the judgment will suffice. One of the very purposes of the revision of the old Article 12 has now been destroyed.

To the portion of the majority opinion so holding, we respectfully dissent.


author: WOODLEY, Presiding Judge. ONION, Judge.

text:
    Vincent Alfonso ZULPO, Appellant, v. The STATE of Texas, Appellee.
    No. 40232.
    Court of Criminal Appeals of Texas.
    May 10, 1967.
    Rehearing Denied June 21, 1967.
    John W. O’Dowd, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Richard M. DeGuerin and Gerald Applewhite, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is indecent exposure to a child; the punishment, 10 years.

Except for the fact that the exposure was to different girls under 16 years of age, the facts and the grounds of error are not materially different from those before us in the appeal of the same appellant in Zulpo v. State, Tex.Cr.App., 415 S.W.2d 650, this day decided. The opinion in the said companion case controls the disposition of this appeal.

The judgment is affirmed.

ONION, Judge.

(Concurring in Part and Dissenting in Part).

For the same reasons stated in our opinion in Zulpo v. State, 415 S.W.2d 650, this day decided, Judge MORRISON and this writer concur in the result reached, but we cannot agree that oral stipulations, not in accordance in Article 1.15, C.C.P., may be considered in passing upon the sufficiency of the evidence.


author: DICE, Commissioner. MORRISON, Judge. BELCHER, Judge.

text:
    Marvin CLEWIS, Appellant, v. The STATE of Texas, Appellee.
    No. 37483.
    Court of Criminal Appeals of Texas.
    Oct. 4, 1965.
    Rehearing Denied Nov. 10, 1965.
    As Amended on Denial of Second Motion for Rehearing Jan. 5, 1966.
    Certiorari Granted Oct. 10, 1966.
    See 87 S.Ct. 104.
    On Remand June 7, 1967.
    Legg, Saxe & Baskin, by Reagan H. Legg, Midland, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for murder; the punishment, twenty-five years.

The state’s evidence shows that on July 5, 1962, the skeleton of a human being — which was identified by dental bridge work as that of appellant’s wife, who had been missing from her home since the latter part of January — was found in a shallow grave northwest of the city of Midland, off Farm Road 868. When found, the body had the wife’s brassiere around the legs and a belt, identified as belonging to appellant, around the neck.

A written statement made by appellant to deputy sheriff Gene Howell, of Midland County, on July 17, 1962, after being duly warned, was introduced in evidence as state’s exhibit #13. In the statement, appellant admitted that he choked his wife to death with a belt during the latter part of January while the two were tussling and fighting in his truck parked on a dirt road out from Midland. He further admitted having placed her body in a hole which he dug with a shovel and covering it with sand. In his statement, appellant related that when he buried his wife the belt with which he choked her to death was still around her neck. He further stated that he “was angry and mad” when they were fighting and that he was “sure angry” when he was choking her.

Testimony was offered by the state that on a Saturday night in January, 1962, appellant had threatened to kill the deceased and had choked her.

Testifying as a witness in his own behalf, appellant denied having killed his wife and repudiated his written statement introduced in evidence by the state.

An issue was raised by appellant at the trial as to the voluntary nature of the written confession and its admissibility in evidence. Such issue was raised by what was termed a “MOTION TO EXCLUDE AND SUPPRESS STATE’S CONFESSIONS,” which motion was heard by the court in the absence of the jury. After the motion had been by the court overruled, evidence was presented before the jury on the question of the voluntary nature of the confession and such issue was submitted to the jury in the court’s charge, under appropriate instructions.

Appellant’s first contention on appeal is that, under the record, the confession introduced in evidence as state’s exhibit #13 was shown to be inadmissible as a matter of law and, for such reason, the case should be reversed.

Briefly, the evidence presented on the question of the admissibility of the confession shows that, after receiving word that his wife’s body had been found and that the sheriff wanted to talk to him, appellant came from Borger — where he had been working — to Midland, on Saturday night, July 7, 1962, arriving at the sheriff’s office around 11:30 p. m. After talking to deputy sheriff Kirksey for about an hour and a half, appellant was permitted to go, with instructions to return the next morning at 8 a. m. He then left the sheriff’s office and went to the home of Elizabeth Johnson.

At 6 a. m., Sunday, Sgt. Jesus Morales, of the city of Midland police department, went to the Johnson home and took appellant to the police station for questioning about his wife’s death. Appellant was questioned at intervals during the day and also on that day was visited by his sister, Annie May Owens, his mother-in-law, Rachel Gar-nett, and Elizabeth Johnson. There was a dispute in the testimony as to whether he was questioned after midnight, appellant swearing that he was and the officer stating that he was not.

On Monday, July 9, appellant was taken from the city jail around 7:30 a. m., by Sgt. Morales and Sgt. Kuykendall and the three proceeded to the place where his wife’s body had been found. When appellant led the officers to the hole in the ground he stated, “ T guess that is where she was buried.’ ”

From the scene, appellant was then taken to the Department of Public Safety, where he was given a polygraph examination by Officer Burl Reed. During the afternoon, appellant was questioned and late that evening he made and signed a written statement to Sgt. Morales in which he admitted killing his wife by shooting her with a gun. After signing the statement, appellant was taken before a magistrate, when bond was set, and in default of bail he was then returned to the city jail.

There is a dispute in the testimony as to whether appellant was questioned on Tuesday, appellant stating that he was and Sgt. Morales testifying that he was not.

No claim was made by appellant that he. was questioned on Wednesday, and there is a conflict in the testimony as to whether he was carried that day or the following day to Borger, where his truck was searched by the officers. Suffice it to say that he was carried on one of the two days to Borger, where the officers, with his consent, did search his truck.

On Thursday, July 12, appellant was again taken by Sgt. Morales to the Department of Public Safety at Midland, where another polygraph examination was given him.

Following this examination, appellant gave a second written statement to Sgt. Morales in which he admitted killing his wife by strangling her with a belt.

On Friday, July 13, appellant was delivered by the city officers to the sheriff and placed in the Midland County j ail.

There is no claim that appellant was questioned by anyone from Friday until Tuesday, July 17, around 10:30 a. m., when he was questioned by deputy Howell and district attorney Joe Mims and, after being duly warned, made and signed the written confession introduced in evidence.

The proof further shows that before appellant made and signed the third statement, which was introduced in evidence, he had consulted with an attorney.

In his testimony, appellant stated that he was threatened and physically abused by Sgt. Morales, Ranger John Wood, and polygraph operator Reed. This was denied by them. Appellant also claimed that he was without food while in custody of the city police. Appellant’s testimony was, in substance, that he signed the first two confessions because he was scared, sick, and hungry and that the reason he signed the third confession (state’s exhibit #13) was because he was scared and afraid that he would receive the same treatment which he had received while in custody of the city officers: that he had already signed two statements and “didn’t figure it made any difference.”

Testimony was presented by the state that appellant was offered food which, on occasions, he would refuse. On other occasions he was given milk and soup, which was for a stomach condition he claimed he had.

None of the officers who appellant claimed had threatened and physically abused him when he made the first two confessions were present when he made the third confession to deputy sheriff Howell.

In a supplemental transcript, certain findings by the trial court which were reduced to writing and filed in the trial court have been forwarded to this court, in which the trial judge certifies that at the conclusion of the hearing, in the jury’s absence, he found the confession offered in evidence as being voluntary and admissible.

We have concluded to accept such belated entry and filing of the trial court’s findings in passing upon the admissibility of the written confession, under the decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.

While the record reflects that an issue was raised as to the voluntary nature of the confession, which issue was submitted to the jury, the evidence is undisputed that before appellant made the confession introduced in evidence, he had been taken before a magistrate, at which time charges were preferred against him and bail set. Further, appellant, while in custody, had been visited by relatives and friends and had consulted with an attorney.

Under the record, we are unable to agree that there are any undisputed facts which rendered the confession inadmissible as a matter of law. See: Lyons v. State of Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L. Ed. 1481.

We have carefully examined the authorities, state and federal, cited by appellant, and do not deem them here controlling under the facts.

Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, is not here controlling, because in that case Es-cobedo asked to consult with counsel and his request was denied. In the instant case, no request was made by appellant to consult with counsel at the time he made the confession.

By informal bill of exception, appellant complains that error was committed when officer Wayne Gideon was permitted to testify that after appellant signed one of the prior statements he said, “ ‘I feel like I can eat something now. I have that knot out of my stomach. I got it all straight with the Lord/ ” Appellant’s objection to the testimony was on the ground that he was in custody and it was not admissible for any purpose.

We perceive no error, as the testimony related to appellant’s acts and statements during his interrogation about the crime and was admissible on the issue of the voluntary nature of the confession. Such testimony was in rebuttal of testimony offered by appellant on the question of the voluntary nature of his confession, and, as a part of the same transaction, was admissible under Art. 728, Vernon’s Ann.C.C.P.

We overrule appellant’s remaining contention that the evidence is insufficient to sustain the conviction because his confession was not corroborated. The other surrounding facts and circumstances, when taken in connection with the confession, are sufficient to establish the corpus delicti under the rule stated in Kugadt v. State, 38 Tex.Cr.R. 681, 44 S.W. 989. See, also, Bosquez v. State, 166 Tex.Cr.R. 147, 311 S.W.2d 855, and Fruechte v. State, 166 Tex.Cr.R. 496, 316 S.W.2d 418.

The judgment is affirmed.

Opinion approved by the Court.

AMENDED OPINION ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

In an exhaustive brief on motion for rehearing appellant challenges the soundness of our original opinion on several grounds. Appellant challenges the authority of this Court to consider the belated finding of the trial court on the issue of the voluntariness of the confession. This Court has, since the rendition of the opinion of the Supreme Court of the United States in Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, (January 18, 1965), adopted the practice which was approved in that case and has accepted such findings in four other cases.

Collins v. Beto, 5 Cir., 348 F.2d 823 (June 18, 1965), was not distinguished from the case at bar in our original opinion. We shall do so now.

1. In Collins neither this Court nor the United States Court of Appeals had before them a Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, finding by the trial court on the question of the voluntary nature of confession. In the case at bar we do have such a finding.

2. The decision of the majority in Collins was based on the involuntariness of Collins’ confession as a matter of law. The resolution of Collins’ claims with regard to Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, was attempted only by Chief Judge Tuttle, whose opinion also found the confession to be involuntary. Viewed in this light, we do not find Collins determinative of the appellant’s claim under the exclusionary rule of Wong Sun.

3. After arrest, Collins was moved to an out of town jail in Humble where he was booked for vagrancy under the name of Joe Smith, although the officers admitted that they had no basis for such charge and knew his name was not Joe Smith. In the case at bar no groundless charge was filed against appellant under another name, nor was he incarcerated in any out of city jail with the exception of a brief stay of less than one hour in the police station at Bor-ger on the day that his truck was searched plus a visit to the Midland Department of Public Safety where he was given a polygraph test.

4. Both statements made by Collins were reduced to writing prior to his being taken before a magistrate. In the case at bar the confession which was introduced was taken from this appellant after he had been carried before a magistrate where bond had been set.

5. Collins had seen no relatives or friends prior to making either of his two confessions. This appellant had been visited in jail by friends and members of his family and had spoken to a lawyer before he made the confession which was introduced.

6. Collins was credited with an I. Q. in the lower ten percent of the population and with the mentality of a child. This appellant had succeeded exceptionally well as foreman of a pipeline crew according to the testimony of his employers, which would be indicative of a thorough awareness of what he was doing.

7. Collins’ two confessions followed a long period of questioning by teams of officers. Appellant had not been questioned at all for three days before the short period of interrogation which preceded the taking of the statement which was introduced in evidence. There was no evidence of undue pressure being applied to appellant at this time.

Originally we did not discuss eo nomine the question of whether the corpus delicti had been established. A most workable definition of the elements of the corpus delicti of a murder case in Texas may be found in Smith v. State of Texas, 5 Cir., 329 F.2d 498. We find such elements to have been established in the case at bar.

This case has received careful consideration by the members of this Court, and we remain convinced that it was properly decided originally.

Appellant’s motion for rehearing is overruled.

On Remand

BELCHER, Judge.

This is a conviction for murder; the punishment was assessed at twenty-five years.

The conviction was affirmed by this Court in Clewis v. State. However, the Supreme Court of the United States granted certiorari; reversed the judgment of the Court of Criminal Appeals with costs, and remanded the cause to this Court for further proceedings not inconsistent with its opinion. (Clewis v. Texas, 386 U.S. -, 87 S.Ct. 1338, 18 L.Ed.2d 423.)

The opinion of the Supreme Court requires that appellant’s motion to reverse and remand this cause be granted.

The judgment of the trial court is reversed and the cause is remanded.


author: MORRISON, Judge.

text:
    William J. SALYER, Appellant, v. The STATE of Texas, Appellee.
    No. 40445.
    Court of Criminal Appeals of Texas.
    June 7, 1967.

      Fred A. Semaan, (On Appeal), Frank Y. Hill, San Antonio, (On Appeal), Luther E. Jones, Jr., Corpus Christi, (On Appeal), for appellant.
    Wiley L. Cheatham, Dist. Atty., Frank Sheppard, County Atty., Cuero, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is perjury; the punishment, two years.

The indictment alleged that appellant swore falsely when he executed a bond which recited that he had property liable to execution worth $8,000 or more, which said property is described as follows — to wit: “real property in Bexar County, Texas, as appears by deed records of said county”. Under the law it is essential that the State prove that such statement was false. The State could have easily have had the County Clerk certify under the terms of Article 3731a, Sec. 5, Vernon’s Ann.Civ.St., that an examination of the deed records showed no deed with appellant as grantee, or, if such deed or deeds were found, offered the testimony of whoever had made a search of the deed records as to what appeared thereon and the value thereof; however, in making out its case the witnesses for the State admitted that they had not examined the deed records of Bexar County, but relied only upon the rolls of the Tax Collector. A Deputy Tax Collector testified that appellant could have owned property which would appear on the deed records and not appear on the Tax Collector’s records. In his own defense appellant produced proof that such had occurred in his case.

Appellant’s first ground of error is that in order to sustain a conviction for perjury it is essential that the State establish the falsity of that portion of the oath quoted above. It is obvious from what has been said that the State failed to meet the burden cast upon them by the terms of the oath and the indictment which incorporated the same, and this conviction cannot stand.

Any admissions made by appellant as to his financial condition several months after the date charged in the indictment could not supply the proof needed to support the allegations of the indictment.

This disposition of the case renders unnecessary a discussion of appellant’s other grounds of error relating to variance.

The judgment is reversed, and the cause is remanded.


author: BELCHER, Judge.

text:
    Ex parte Alfred PUNCHARD.
    No. 40495.
    Court of Criminal Appeals of Texas.
    May 31, 1967.
    Ed P. Magre, Cameron, for appellant.
    John B. Henderson, Jr., County Atty., Cameron, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

This is an original application for writ of habeas corpus brought by an inmate of the Texas Department of Corrections under Art. 11.07 Vernon’s Ann.C.C.P. As grounds for relief he alleges that he was indigent and without counsel when he pled guilty to burglary on June 1, 1928, in Cause No. 8752, in the 20th Judicial District Court of Milam County; that such conviction was later used for enhancement in a conviction in 1941 resulting in a life sentence in the District Court of Milam County.

At a hearing on said application before the judge of the 20th District Court of Milam County, it was stipulated that the relator was not represented by counsel on his trial for burglary in 1928; that said burglary conviction was later used with, another felony conviction for enhancement in connection with a primary offense of burglary which resulted in his conviction with his punishment assessed at life and he was sentenced accordingly.

It is undisputed in the evidence that the relator was indigent at the time of his trial and conviction for burglary in 1928, which was later used for enhancement in a cause resulting in a conviction with a life sentence assessed against him.

The relator having served more than twelve years, it is evident from the record that he is entitled to be discharged. Ex parte Morgan, Tex.Cr.App., 412 S.W.2d 657; Ex parte Huffman, Tex.Cr.App., 415 S.W.2d 408.

The writ of habeas corpus is granted, and the relator is ordered released.


author: DICE, Judge.

text:
    Morris Sheppard RENEAU, Appellant, v. The STATE of Texas, Appellee.
    No. 40433.
    Court of Criminal Appeals of Texas.
    June 7, 1967.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for the subsequent offense of drunk driving, a felony; the punishment, a fine of $750.

Trial was before the court, a jury being waived, upon appellant’s plea of guilty.

Evidence was stipulated by the parties, showing appellant’s guilt of the offense charged.

Appellant was represented by counsel at the trial and there is no showing that his counsel was appointed by the court or that appellant was indigent.

No appellate brief has been filed by appellant with the clerk of the trial court.

The record contains nothing which should be considered as unassigned error under Art. 40.09, Sec. 13, C.C.P.

The judgment is affirmed.


author: BELCHER, Judge. MORRISON, Judge

text:
    Ex parte Claude C. CLIFTON.
    No. 40327.
    Court of Criminal Appeals of Texas.
    May 31, 1967.

      Sam R. Wilson, Houston, for petitioner.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

This is an original application for a writ of habeas corpus.

The relator contends that he is illegally confined in the Texas Department of Corrections.

In 1931, the relator was convicted of robbery in Wharton County with punishment assessed at twenty-five years;

In 1932, the relator was convicted of felony theft in McLennan County with punishment assessed at ten years and the sentence contains cumulative provisions;

In 1941, the relator was granted a six months reprieve by the Governor, which was followed by three one-year extensions, the third being granted in December, 1944;

On January 4, 1946, the relator was granted a conditional pardon.

In the latter part of 1946, the relator pleaded guilty to post office burglary in the United States District Court for the Eastern District of Arkansas and his punishment was assessed at ten years.

On January 17,1947, while the relator was in federal custody the Texas Governor revoked his conditional pardon because of such federal conviction.

On June 28, 1953, there being no detainers on him, the relator was released on parole from U. S. Penitentiary in Atlanta, Georgia, after serving six years and one month.

On November 27, 1956, relator was committed to the Mississippi Penitentiary on a seven-year burglary sentence.

On February 1, 1961, the relator was released from the Mississippi Prison and returned as a parole violator to U. S. Penitentiary in Atlanta.

On July 17, 1964, upon his release from federal custody, the relator was returned to the Texas Department of Corrections.

Relator insists that the order of cumulation in the McLennan County case in 1932, with the 1931 Wharton County case is invalid because of the inadequate description of the Wharton case.

The McLennan sentence concludes with this order:

“It is further ordered by the Court that the sentence in this case begin at and run from the expiration of a 25 year sentence in Wharton County, Texas, against this defendant.”

It is concluded that the order containing the name of the county which had only one district court at the time the order was entered, and the extent of the punishment imposed, is sufficient. Ex Parte Daffern, 162 Tex.Cr.R. 472, 286 S.W.2d 151.

Relator insists that he should receive credit on his sentence for the time he was out of custody pursuant to the reprieve, its extensions and the conditional pardon. He argues that the reprieve did not contain provisions that time out of custody, upon revocation, would not be credited on his sentence, and for this reason he is entitled to such credit. He also argues that, this being true as to the original reprieve, it is also true as to its extensions, even though they contained such provisions, because he had no knowledge of the provisions.

The original reprieve is conditioned that if further clemency is desired application must be filed ten days before its expiration; and the extensions and the conditional pardon provide that upon revocation, the clemency or any previous clemency shall not be credited as time served upon his sentence. The required request for further clemency which was granted sufficiently shows relator had knowledge of their provisions.

Relator’s discharge is strenuously urged upon the ground that for more than ten years after revocation of his clemency, Texas showed no interest in his return to prison, filed no detainers, and took no affirmative action after revocation, and to now require him to serve the balance of the Texas sentences constitutes a denial of due process.

If credited with time on his Texas sentences since his first release on parole from federal custody until his return to Texas custody, it still remains that the relator has not served the Wharton and McLennan County sentences as cumulated, and he is now legally confined.

In the light of the relator’s ten-year conviction for post office burglary in Arkansas in 1946, and his seven-year burglary conviction in Mississippi in 1956, which were after the conditional pardon granted to him in Texas, it is concluded that the further confinement of the relator under the above cumulated sentences does not deprive him of due process.

The application for writ of habeas corpus is denied.

MORRISON, Judge

(dissenting).

The majority clearly overlooks the lesson which this Court should have learned when the U. S. Court of Appeals for the Fifth Circuit in Shields v. Beto, 370 F.2d 1003, clearly overruled the earlier opinion of this Court in Ex parte Shields, 371 S.W.2d 395.

The similarity of the two cases is striking. In Shields, the Circuit Court held that, since Texas had shown no interest in Shields from the time of his release from the Louisiana penitentiary on December 5, 1934, until May 12, 1962, any further confinement of Shields under his 1932 conviction constituted a deprivation of due process and ordered Shields released.

In the case at bar, Texas knew that this relator had been charged with a Federal offense on January 16, 1947, because the Governor revoked his conditional pardon because of such charge, but Texas showed no interest in him during his six years’ confinement in the U. S. penitentiary or thereafter and until he was taken into custody on July 17, 1964, to serve the remainder of his 1931 and 1932 convictions.

If Shields was deprived of due process, so was this relator.

I respectfully dissent, and my brother ONION, J., joins me.


author: WOODLEY, Presiding Judge.

text:
    Harold James GRANTOM, Appellant, v. The STATE of Texas, Appellee.
    No. 40371.
    Court of Criminal Appeals of Texas.
    May 31, 1967.
    Frank Mabry, Edward Woods, Houston, George W. Morris, Conroe, for appellant.
    W. G. Woods, Jr., Dist. Atty., Liberty, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is statutory rape; the punishment, 25 years.

The indictment returned July 6, 1966, alleged that the offense was committed on or about the 19th day of July, 1965.

The evidence reflects that appellant had many acts of sexual intercourse with his stepdaughter Mary_, when she was 14 years of age, several of which occurred in Liberty County during the month of July 1965.

Appellant’s first ground for reversal relates to the court’s charge wherein the jury was instructed:

“Therefore, if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, Harold James Grantom, in the County of Liberty and State of Texas, and on or about the 19th day of July, 1965, or at any time within one year before the filing of the indictment, did then and there unlawfully in and upon Mary_make an assault, and the said Harold James Gran-tom did then and there ravish and have carnal knowledge of the said Mary -, a female then and there under the age of fifteen years, she the said Mary _ not being then and there the wife of the said Harold James Grantom, and the male organ of Harold James Grantom did then and there penetrate the female organ of Mary -, then he would be guilty as charged.”

Article 12.02 C.C.P. provides: “An indictment for rape may be presented within one year, and not afterward.”

It is well settled that the state is not bound by the date on or about which the offense is alleged to have been committed and a conviction may be had upon proof that the offense was committed at any time prior to the return of the indictment which is within the period of limitations. Faulkner v. State, Tex.Cr.App., 390 S.W.2d 754; Rangel v. State, 171 Tex.Cr.R. 620, 352 S.W.2d 275; Grayson v. State, 155 Tex.Cr.R. 500, 236 S.W.2d 792.

The court’s charge gave effect to such rule and allowed the jury to convict upon a finding beyond a reasonable doubt that appellant had sexual relations with the 14 year old girl in Liberty County within one year prior to July 6, 1966, when the indictment was presented. Art. 12.02 C.C.P.

The charge was appropriate because the evidence does not clearly reflect that either of the several acts of intercourse occurred on July 19th, 1965, though the evidence was sufficient to show that one or more of such acts that occurred in the month of July 1965 were committed after July 6th and within the one year period of limitations.

Other prior acts of intercourse were proved without objection. In prosecutions for statutory rape, testimony of other acts of intercourse upon the complaining witness, either prior or subsequent to the date charged, can be utilized by the jury in determining whether the particular act relied upon by the state was committed. Johns v. State, 155 Tex.Cr.R. 503, 236 S.W.2d 820; Bates v. State, 165 Tex.Cr.R. 140, 305 S.W.2d 366; Armstrong v. State, 169 Tex.Cr.R. 1, 331 S.W.2d 331.

As to the objection that the above quoted portion of the charge was a comment upon the weight of the evidence, the court correctly commenced this portion of the charge by stating that the evidence could not be considered unless the jury believed beyond a reasonable doubt that other acts of intercourse were in fact committed.

Appellant made no objection to the charge on the ground that the charge did not limit the jury’s consideration of evidence as to other acts of intercourse to the purpose for which it was admitted, and his point of error in that regard is not before this court for review. Appellant’s point of error concerning the trial court’s failure to sustain his objection to testimony of the complaining witness about illicit acts other than sexual intercourse committed by appellant upon her is overruled. Martin v. State, Tex.Cr.App., 400 S.W.2d 919.

Appellant’s remaining ground of error presents the novel contention that the trial court erred in failing to grant his motion for mistrial when the district attorney, in his argument to the jury at the hearing on punishment (at which appellant testified) commented on his failure to testify at the trial on the issue of guilt or innocence.

The court sustained appellant’s objection and instructed the jury to disregard the remark of the district attorney. We do not agree that the trial court erred in refusing to declare a mistrial under the rule applicable to references to the defendant’s failure to testify in jury argument at the main trial.

The judgment is affirmed.


text:
    Wilborn ALCORN, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 40392.
    Court of Criminal Appeals of Texas.
    June 7, 1967.
    J. Harlan Fleming, Fort Worth, for appellant.
    Frank Coffey, Dist. Atty., Charles Butts and R. J. Adcock, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Judge.

OPINION

The conviction is for robbery by firearms ; the punishment, forty years.

Trial was before a jury upon appellant’s plea of guilty.

Evidence was presented by the state showing appellant’s guilt of the offense charged.

The state also offered in evidence certain authenticated prison records and the testimony of a fingerprint expert which showed that appellant had been previously convicted, in both federal and state courts, of two felony offenses.

In his brief filed in the trial court, appellant insists that by the admission of such evidence of his prior criminal record he was denied due process of law under both the State and Federal Constitutions.

In support of his contention, appellant insists that evidence of his prior criminal record was not admissible, under Art. 26.14, Vernon’s Ann.C.C.P. of 1965, upon his plea of guilty before a jury. Rojas v. State, Tex.Cr.App., 404 S.W.2d 30, is cited in support of his contention.

The record reflects that the only objection made by appellant to the evidence of which he now complains was to state’s exhibit #3, on the ground that the fingerprints contained therein were illegible and could not be compared. The fingerprint expert who testified in the case swore that he could make comparisons by use of the exhibit. Appellant’s objection went to the weight of the evidence rather than to its admissibility.

We do not agree that the admission in evidence of appellant’s prior criminal record was error.

Recently, in Miller v. State, Tex.Cr.App., 412 S.W.2d 650, we said:

“It is the established rule that a plea of guilty to a felony charge before a jury admits the existence of all facts necessary to establish guilt and, in such cases, the introduction of testimony by the state is for the jury’s benefit in fixing punishment. Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460.”

In Rojas v. State, supra, cited by appellant, Judge Woodley, writing for this court on the state’s motion for rehearing, said:

“In view of the provision of Art. 37.07, Sec. 2(b), evidence may now be offered before a jury impaneled to assess the punishment ‘as to the prior criminal record of the defendant, his general reputation and his character,’ whether such jury is impaneled pursuant to Art. 26.14 or after the jury verdict of guilty has been returned.”

The ground of error is overruled.

The judgment is affirmed.


author: CHAPMAN, Justice.

text:
    Bourdon Rea BARFIELD, Trustee et al., Appellants, v. The HOWARD M. SMITH COMPANY OF AMARILLO, Appellee.
    No. 7711.
    Court of Civil Appeals of Texas. Amarillo.
    May 8, 1967.
    Rehearing Denied June 5, 1967.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, Jerome W. Johnson, Amarillo, of counsel, for appellants.
    Simpson, Adkins, Fullingim & Hankins, Amarillo, W. P. Sturdivant, Amarillo, of counsel, for appellee.
   CHAPMAN, Justice.

This suit originated in an action by appellants, Bourdon Rea Barfield as Trustee for the children of his brother, Oliver Eakle Barfield; the latter as Trustee for Bourdon Rea Barfield’s children; and the parents of the two named trustees against appellee, Howard M. Smith Company, a retail clothing store corporation, seeking recovery of $32,800 allegedly due under a lease agreement between the parties. They will hereinafter be referred to as the Barfields and Smiths or appellants and appellee or by their respective names.

The lease agreement out of which the present controversy arose was executed June 12, 1958, for a term from August 1, 1958, through June 30, 1965. The previous lease under which they had been operating was entered into on November 3, 1952, for the period from January 1, 1953, through December 31, 1972. That lease did not terminate with the execution of the later lease, but was absorbed into the 1958 lease in controversy when 3,240 additional square feet of floor space constituting a part of the Barfield Building was leased adjacent to and incorporated into the floor space adjoining the Barfield Building represented by the 1952 lease.

The 1952 lease provided for a guaranteed base rental with additional rent based on a sliding scale of percentage related to the gross sales in excess of $500,000 of the clothing store called “Huh Clothiers.” In submitting the year-end reports required to be made forty-five days after the end of each year the Smiths incorrectly treated the $20,000 base rental of the 1952 lease as though it were a part of the percentage rental, including in their “Remittance Slip” an item reading “4% of $500,000 = $20,-000.” This was not in accordance with the terms of the lease, since no percentage rental was provided for on the first $500,-000.

The 1958 lease provided for a base rental for the Barfield Building space of $4,800 a year, 3.67% of all gross sales in excess of $925,000 each year but not in excess of $1,150,000 attributable to the Barfield Building; and a sum of 2½'% of all gross sales each year in excess of $1,150,000 attributable to the area covered by the prior lease. The percentages provided for in the 1952 lease below $925,000 were also allocated to the area covered by the 1952 lease.

The parties, before the 1959 payment, had operated under the 1952 lease for five months, paying ¾2 each month of the $20,-000 base guarantee under the 1952 lease for seven months and $2,066.67 per month for the last five months. The latter figure was the monthly rent resulting from the base guarantee of $4,800 per year for the new space added to the monthly rent under the $20,000 base guarantee of the 1952 lease.

From 1959 through 1965 payments for each preceding year were made by deducting the sum total of the monthly prepayments from the total percentage rents. The payments on such basis were accepted by appellants and the “Remittance Slips” retained by them.

Prior to the expiration of the 1958 lease, appellants still having raised no objection to the method or amount of payments, the parties executed a third lease terminating on December 31, 1972. The third lease was executed on August 1, 1964, some eleven months before the expiration of the 1958 lease. Subsequent to the expiration of the 1958 lease and subsequent to the execution of the 1964 lease, Bourdon Rea Barfield, who was managing the rentals for the Barfields raised, for the first time, a question concerning the method used by appellee in calculating rentals, which method had been used at least since 1952. He sought recovery of an additional $4,800 per year for 1958 through 1963 and $4,000 for 1964. The parties not being able to reconcile their differences, suit was filed for $34,800 and tried to the court. A take-nothing judgment was rendered and appellants requested findings of fact and conclusions of law.

From the various findings, the court concluded appellants were equitably estopped to recovery upon the contract as written; were barred by the four-year statute of limitation, Article 5527, Vernon’s Ann.Tex. Civ.St., for the years 1958, 1959 and 1960; are barred by laches; and that B. R. Bar-field, acting on behalf of the Barfield family, with full knowledge, or with sufficient notice or means of knowledge of their rights remained inactive for such length of time before repudiating the method employed by the Smiths for calculating the annual rentals under the 1958 lease agreement that the Smiths were induced to suppose such method was acceptable and the Barfields thereby acquiesced therein until “ * * * such method is now unimpeachable.”

None of the parties appear to find fault with the court’s fact findings to the effect that the 1958 lease constituting the basis of this action was clear and unambiguous; that the manner in which the Smiths yearly calculated and paid the rentals on such lease was incorrect; that the parties prior to the execution of the 1958 lease did not mutually agree that they might be yearly calculated and paid in the manner in which they were calculated and paid for the operating years 1958 through 1964; and that the parties did not as a result of mutual mistake believe at the time the 1958 lease was executed that it provided for the computation of annual rentals in the manner in which they were subsequently calculated by the Smiths.

By their first point of error appellants contend the court erred by entering a defendant’s judgment based upon equitable estoppel.

Among the numerous other facts found by the trial court is Fact Finding No. 6 as follows:

“That BOURDON REA BARFIELD knew not later than February of 1959, that the defendant in computing the yearly rental due at the end of each lease payment period deducted the sum total of the monthly prepayments from the total percentage rents, in arriving at the year end balance due to plaintiffs and that this was inconsistent with the clear and unambiguous terms of the lease agreement of June 12, 1958.”

These findings of fact just quoted having not been challenged are binding on our court. Murphy v. Boyt, 180 S.W.2d 199 (Tex.Civ.App.Amarillo, 1944, writ ref’d w. o. m.); Laredo Brick Co. v. Urdiales, 263 S.W.2d 332 (Tex.Civ.App.-San Antonio, 1953, no writ); Waters v. King, 353 S.W.2d 326 (Tex.Civ.App.-Dallas, 1961, no writ); Browne v. General Electric Company, 402 S.W.2d 957 (Tex.Civ.App.-San Antonio, 1966, writ dism’d); Saner-Whiteman Lumber Co. v. Texas & N. O. R. Co., 282 S.W. 267 (Tex.Civ.App.-Galveston, 1926, rev’d on other grounds).

In the last cited case the Galveston court said, “ * * * this finding of fact is not complained of in any assignment presented by appellant, and is therefore binding upon this court, regardless of what the evidence may be on the issue.” Whether the quote just made is a correct statement of the law or not is actually immaterial here, because there is probative evidence in the record to support the trial court’s findings of fact above quoted. The record shows B. R. Barfield is a 1951 graduate of the University of Texas School of Business Administration ; has been active in supervising extensive business interests in which his family has been involved, including lease negotiations on the multi-storied Barfield Building; assisted in negotiating the 1952 lease and discussed with his father in 1952 and 1953 that appellee was using a method of calculations in paying the yearly rentals not provided for in the contract lease; negotiated the 1958 lease but did not mention to appellee that the method of calculations on the annual rental payments were contrary to their lease contract, but continued to accept such payments on the same method of calculations the Smiths had been using at least since 1952. In fact, he discussed with Harold Smith in the early 1960’s his disappointment in the decline of rentals. He was furnished the method of calculations at each annual payment date for his records, had the original of the lease agreement, and admitted, in effect, that there was not anything else the Smiths could have furnished him that would have added any information to their method of calculations.

In Fact Finding Nos. 7 and 8 the trial court also found as follows:

“That BOURDON REA BARFIELD subsequent to January, 1959, had possession of information, to-wit, annual statements furnished to him by the defendant, sufficient to cause a reasonably prudent man similarly situated to make inquiry concerning the method used by the defendant in computing the balance of rent due plaintiffs at the end of each year.
“That if BOURDON REA BAR-FIELD had made such inquiry and had pursued such inquiry with ordinary diligence, it would have disclosed to BOUR-DON REA BARFIELD that the method of computation used by the defendant in computing the balance of rent due annually after taking into account monthly prepayments resulted in an amount different than would have resulted if the computation had been made pursuant to the clear and unambiguous terms of the lease agreement of June 12, 1958.”

We have been unable to find in appellants’ argument under their first point any challenge to the facts found by the trial court under Fact Finding No. 6. Since we are bound by the findings therein if they are supported by the evidence and unchallenged, we must determine if they support the judgment rendered. The cases above cited support the rule that our court is bound by findings of fact unchallenged, if supported by probative evidence. We hold the trial court correctly entered judgment for appellee based upon the doctrine of equitable estoppel under the authority of Champlin Oil & Refining Company v. Chastain, 403 S.W.2d 376 (Tex.1965).

A study of the case just cited makes it obvious that the Supreme Court of Texas did some searching agonizing with the law books before the opinion was finally announced, since there are two written majority opinions, one written concurring opinion joined in by a member of the majority and two dissents, the first dissent to the first majority opinion and the second by the Chief Justice to the majority opinion written “On Rehearing.”

Appellee contends by brief that appellants’ Points 2 and 3 should be stricken because they waived their right to have them considered by us in failing to secure findings of fact or conclusions of law pertaining thereto and in failing to object to the trial court’s not having made findings thereon. Rather than passing upon the validity of that question we prefer to consider all the points together involving equitable estoppel.

The Court in the Chastain case just cited held that under certain circumstances one having the means of knowledge may be held to the same standard of • responsibility as one possessing conscious knowledge; that the authorities substantially all agree upon the general proposition that: (1) to create an estoppel the conduct of the party need not consist of affirmative acts or words, but it may consist of silence or negative omission to act when it was his duty to speak; (2) it is not necessary that the facts must be actually known to the party estopped, if the circumstances are such that a knowledge of the truth is necessarily imputed to him; (3) it is not necessary that the conduct be done with a fraudulent intention to deceive, or with actual intention that such conduct will be acted upon by the other party but it is enough that the conduct was done under such circumstances that he should have known that it was both natural and probable that it would be so acted upon.

The Court then stated that Texas authority has determined that imputed actual notice carries with it the same legal consequences as conscious knowledge, citing Hexter v. Pratt, 10 S.W.2d 692 (Tex.Comm’n App.1928) and stating that the Hexter case was cited with approval by their court in Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286 (1951). In citing the Hexter case as authority the Court quoted from it as follows:

“ ‘Notice in law is of two kinds — actual and constructive. * * * In common parlance “actual notice” generally consists in express information of a fact, but in law the term is more comprehensive. In law whatever fairly puts a person on inquiry is sufficient notice, where the means of knowledge are at hand, which if pursued by the proper inquiry the full truth might have been ascertained. Means of knowledge with the duty of using them are in equity equivalent to knowledge itself. * * * So that, in legal parlance, actual knowledge embraces those things of which the one sought to be charged has express information, and likewise those things which a reasonably diligent inquiry and exercise of the means of information at hand would have disclosed.’ ”

On rehearing- the Court defined specifically the issue to be resolved by stating “ * * * the test would be to inquire if Chastain prior to March 1, 1961, was in possession of information which would cause a reasonably prudent man, similarly situated to Chastain, to make inquiry, which inquiry if pursued with ordinary diligence would have disclosed that the plant formula in actual use was a different formula from that prescribed in the Natural Gas Processing contract,” the exact finding made by the trial court here in its Finding No. 8, when applied to the facts of our case.

The findings of fact made by the trial court in our case, supported by the evidence, appear to us to make it a more classic example for the application of the doctrine of equitable estoppel than the facts with which the Court dealt in the Chastain case. The jury there made a negative finding to the issue inquiring if the one against whom equitable estoppel was applied by the Court (Chastain) knew prior to the time he was advised legally that the allocation method used by the defendant was different from the allocation formula described in the Natural Gas Processing Agreement. Whereas, in our case the fact finder (the trial court) found those against whom equitable estoppel was applied knew during all the period for which recovery was sought that the method used in paying yearly rentals was inconsistent with the the terms of the lease agreement.

It appears to us that Finding of Fact No. 6 meets the principal objections made in Mr. Justice Pope’s and Chief Justice Calvert’s written dissents. The former stated:

“Ordinarily the one (Chastain) [the Barfields here] against whom the estoppel operates is the one who is possessed of knowledge and who, by force of his knowledge, takes some advantage of him (Champlin) [the Smiths here] who does not have it.”

Chief Justice Calvert stated in his dissent that:

“Mr. Justice Pope has cited a number of Texas decisions in his dissenting opinion in which our courts have declared that a duty to speak arises out of actual knowledge of the facts. See Hallmark v. United Fidelity Life Ins. Co., 155 Tex. 291, 286 S.W.2d 133 (1956); Williams v. Texas Employers Ins. Ass’n, Tex.Civ.App., 135 S.W.2d 262 (1940), writ refused; Moore v. Carey Bros. Oil Co., Tex.Com.App., 272 S.W. 440, 39 A.L.R. 1247 (1925).”

The trial court also found as facts that B. R. Barfield after having the knowledge that the method of computation resulted in an amount different to that which would have resulted had the clear and unambiguous terms of the lease been applied, lead appel-lee by his acts, conduct and silence reasonably to believe that appellants approved of the method used in calculating the annual rental payments; that appellees relied upon such acts, conduct and silence; that but for such acts, conduct and silence appellee would not have executed the August 1, 1964, lease agreement and would have taken action to set aside the June 12, 1958, lease prior to August 1, 1964; that but for such acts, conduct and silence, appellee would have made arrangements for other facilities for housing that portion of their business located on the premises in the Barfield Building prior to August 1, 1964; that the owners and managers of appellee as ordinary and prudent persons were induced to believe that the method they employed in calculating yearly rentals was accepted by Bourdon Rea Barfield on behalf of appellants ; that appellants delayed an unreasonable length of time to assert the claim in question; that appellee did not know appellants would assert the claim prior to the time it was asserted; and that during the time appellants failed to assert their claim appellee changed its position by executing the August 1, 1964, lease, failed to make arrangements for moving off the premises located in the Barfield Building, failed to take any action to cancel the 1958 lease and thereby changed its position in such a way that it would be unjust for appellants to now assert its claim.

It is true the trial court made no finding whatever of appellee’s knowledge of error in the method of payment but no request is shown in the record for such finding. The record does show by the testimony of Harold Smith, one of the managers of the clothing store and the one who apparently handles the principal part of the office business of the institution, that it did not come to his knowledge that the method of calculating the rentals under the 1952 lease was erroneous; that they agreed to pay a minimum rental of $4,800 per year on the area within the Barfield Building in equal monthly payments and that it was their understanding that the lease provided for percentages to be applied to the gross sales from both areas, which would be the total amount of rental and from which would be deducted the minimum or guarantees; that his understanding was that they were to pay a $4,800 yearly guarantee on the area within the Barfield Building regardless of the volume of gross sales; that it had always been his understanding that he would take the volume of sales and apply the percentage, from which the guarantees would be deducted and the guarantee and the difference would be paid; that he never understood that any payment was to be made contrary to the method he employed in calculating the annual rentals, or he would have acted differently; that he would not have executed the lease agreement of August 1, 1964, for the period from July 1, 1965, to December 31, 1972, and would not have exercised his option to continue his business beyond the termination of the 1958 lease had he known there was any controversy concerning the amount of the payments that were to be made; and that as a layman he failed to understand the lease. The record shows that appellants’ attorney drafted the lease. So, even had a request been made for such findings, there is no probative evidence from which the court could have logically concluded appellee had actual knowledge of its error in calculating the rents.

It is also true that Bourdon Rea Barfield testified that prior to the statement in the “Remittance Slip” for 1964 made in 1965 he had no notice of the understatement of rentals due. The trial court obviously rejected such testimony. She had the authority to do so. American Bankers Insurance Company v. Farley, 403 S.W.2d 545 (Tex.Civ.App.-Fort Worth, 1966, no writ); Redman v. Bennett, 401 S.W.2d 891 (Tex.Civ.App.-Tyler, 1966, no writ); Ambrose & Co. v. Hutchison, 356 S.W.2d 215 (Tex.Civ.App.-Fort Worth, 1962, no writ); Ryals v. Garza, 264 S.W.2d 548 (Tex.Civ.App.-Dallas, 1953, writ ref’d n. r. e.); Brown v. Wright, 356 S.W.2d 849, (Tex.Civ.App.-San Antonio, 1962, writ dism’d).

It is a well settled rule that an appellate court will not disturb the facts found by the trial court if there is some evidence of probative force to support them, viewing the evidence in the light most favorable to the successful party and indulging every legitimate conclusion that is favorable to the judgment rendered. American Bankers Insurance Company v. Farley, supra; Liedeker v. Grossman, 146 Tex. 308, 206 S.W.2d 232 (1947); Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972 (1951); Wilson v. Teague Independent School Dist., 251 S.W.2d 263 (Tex.Civ.App.-Waco, 1952, writ ref’d); Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684 (1959); Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286 (1951).

It is also the established rule that fact findings may embody inferences deducible from the evidence, American Bankers Insurance Company v. Farley, supra, and should be overruled only when they are not supported by any probative evidence or are so against the weight and preponderance of the evidence as to be manifestly wrong. Bavousett v. Bradshaw, 332 S.W.2d 155 (Tex.Civ.App.-Amarillo, 1959, writ ref’d n. r. e.); Keeton v. Gillam Soap Works, 215 S.W.2d 675 (Tex.Civ.App.-Amarillo, 1948, writ ref’d n. r. e.); Donnell v. Acker, 343 S.W.2d 718 (Tex.Civ.App.-Houston, 1961, no writ).

Under the facts above related and the inferences fairly deducible therefrom and from the fact findings made by the trial court, we hold appellants’ four points addressed to the asserted error in sustaining the defense of equitable estoppel show no reversible error. The findings and conclusions made by the court on laches and limitations are serious questions but in view of what we have held, we do not consider it necessary to discuss them.

We consider the instant case stronger in support of equitable estoppel than the Chastain case because of the finding by the trial court in the instant case of actual knowledge of payments (by the ones against whom estoppel was applied) different to the provisions of the lease contract. Findings by the majority in Chastain of imputed knowledge appear to form many of the grounds prompting the dissents.

Accordingly, the judgment of the trial court is affirmed.