text:
    Martha MILLER, Appellant, v. The STATE of Texas, Appellee.
    No. 37522.
    Court of Criminal Appeals of Texas.
    Feb. 3, 1965.
    Rehearing Denied March 17, 1965.
    John Peace, J. B. Langham, Carlos Cadena, San Antonio, for appellant on appeal only.
    James E. Barlow, Dist. Atty., M. C. Gonzales and Richard M. Casillas, Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was tried upon an indictment for murder with malice and convicted by the jury of murder without malice, and her punishment was assessed at confinement in the penitentiary for five years.

The state’s evidence shows that appellant and her husband, the deceased, lived in an upstairs apartment of the Wheatley Courts at 207 Ira Aldridge Street in the city of San Antonio. On the night in question, while some boys were in front of the courts, talking, a shot was heard around 1 a. m., and appellant came down the stairs and stated that she had just shot her husband. The boys ran upstairs and found the appellant’s husband lying in a hallway on his back, with a gunshot wound in the chest. A .22 calibre pistol was observed by witnesses, on a kitchen table in appellant’s apartment, which pistol was later found nearby in a neighbor’s yard.

An autopsy performed upon the body of the deceased disclosed a bullet wound in the right chest and showed that the cause of death was a bullet wound in the heart A .22 calibre bullet removed from the body was shown by the testimony of a ballistics expert to have been fired from the pistol found near the scene of the killing.

It was further shown that, after the shooting, appellant stated at the scene, while crying and wringing her hands, that she “didn’t go to shoot” the deceased and after the officers arrived appellant stated that the deceased “had jumped on her and she shot him.”

Detective David Guerrero testified that when he talked to appellant at the scene he asked her if she would give him a statement and she replied that she would. He stated that he later talked to her at police headquarters between 1:30 and 2:00 a. m., and told her that she did not have to make a statement and that if she did it had to be voluntary and would be used as evidence against her. He further testified that after giving appellant the statutory warning, she made a statement to him which he reduced to writing on a typewriter and after appellant had read, the statement she signed it in the presence of two witnesses.

The statement, which upon its face is shown to have'been completed at 2 a. m., was introduced in evidence by the state, without objection, as State’s Exhibit No. 2.

In the statement, appellant related that on the night of the killing, after her husband (the deceased) had seen her talking to another man at a lounge and told her to go back to her seat:

“ * * * I told him to take me home since he did not want me to talk to any_body, and he told me he was not ready to go yet. I then got up from the table and was walking out of the place when he followed me out. We got in the car and left, and we were arguing all the way. I asked him why he wanted to treat me the way he did in front of his people, and it was then that he struck me on the back of the head as I sort of bent down when he rasied his hand. This happened about two blks. from our house, and when we arrived home, he kept arguing and telling me he did not want me to talk to any_body, and not to go back there again. I undressed, and went to bed, and about that time, an uncle of his arrived and they talked in the living room for a while. After his uncle left, the baby woke up and I went into the kitchen to fix a bottle of milk. He had just turned on the record player, and had it on too loud. I went and turned the music down as it was too loud, and he got mad at me and told me to get out of there and leave the record player alone. I went back to my becLroom and took a small pistol out of one of the dresser drawers and went back to the living room. I met him in the small hallway, and just pointed the pistol at him and pulled the trigger. I was afraid he was going to beat me up again as he always does, and has done so many times. After I saw he was hurt, I called the police and told them I had just shot my husband. I then placed the gun on the kitchen table and ran out of the house and saw a lot of people just standing on the street. I told them I had just shot my husband, and I remember that some teenagers went up to the apartment. I was still standing outside when the officers arrived and placed me in a police car * *

Testifying as a witness in her own behalf, appellant related a married life with the deceased, during which time he administered numerous beatings to her. In describing the events preceding the killing on the night in question, appellant stated that on their way home from the lounge deceased stopped and beat her, saying “that wasn’t all I was going to get when we got home.” When they arrived home she went to her bedroom and started to bed. The baby then began crying and she went to the kitchen to fix a bottle of milk. The deceased then started the record player in the living room and when he turned it up high she asked him to turn it down. He refused and when she started to turn it down the deceased advanced toward her. Appellant stated that she ran back to the bedroom because she was scared, and got the pistol out of a dresser drawer to frighten the deceased. As she was returning to the living room she met the deceased in the hall. She stated that when he kept coming at her after she told him to stop and just as he jumped on her the pistol went off. She denied any intention to shoot and kill the deceased.

Appellant -admitted signing a written statement after her arrest but denied making certain statements contained in the one introduced in evidence by the state. Appellant stated that when she made the statement to the officer she was crying and upset. She further stated that before she signed the statement she asked to use the telephone and was going to call her mother to get in touch with a certain attorney; that she was told that after she signed the statement she would be allowed to make one telephone call, and she signed the statement.

The court in his charge instructed the jury on the law of self-defense, threats, and accident.

The court also submitted to the jury the issue as to the voluntary nature of appellant’s written statement and instructed them that if they believed from the evidence or had a reasonable doubt thereof that the statement was not freely and voluntarily made, then they would disregard such statement and not consider it for any purpose whatsoever.

The jury, by their verdict, rejected appellant’s defenses and we find the evidence sufficient to sustain the judgment of conviction.

Appellant predicates her appeal upon two points of error.

By the first point of error it is contended that the procedure followed by the trial court in admitting appellant’s written confession in evidence did not afford her a reliable determination of its voluntariness and for such reason she stands convicted without due process of law and is thus deprived of her constitutional rights guaranteed by the Fourteenth Amendment to the Constitution of the United States.

Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, decided by the Supreme Court of the United States, and Lopez v. State, 384 S.W.2d 345, decided by this court, are relied upon by appellant in support of her contention.

The rule announced in Jackson v. Denno, supra, and followed by this court in Lopez v. State, supra, has no application to the present case, where the state’s proof as to the voluntary nature of appellant’s confession was not questioned when the same was offered in evidence by the state. See: Garrett v. State, Tex.Cr.App., 387 S.W.2d 53, opinion delivered January 27, 1965. The issue raised by appellant’s testimony as to the voluntary nature of the confession after it was admitted in evidence was properly submitted to the jury under the instructions given in the charge.

By her second point of error, appellant contends that she was denied the assistance of counsel during her interrogation by the officer, in violation of the Sixth Amendment to the Constitution of the United States.

Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, by the Supreme Court of the United States, is relied upon in support of her contention.

An examination of the record does not ■disclose that during her interrogation by the officer appellant was denied the assistance of counsel. While appellant testified that she requested permission to call her mother, no request was made by appellant that she be permitted to consult with counsel. The absence of such proof and the fact that appellant was warned that she did not have to make a statement differentiates this case from Escobedo v. Illinois, supra, where the accused requested and was denied an opportunity to consult with counsel. The point of error is overruled.

The judgment is affirmed.

Opinion approved by the court.


source: Caselaw Access Project

author: WOODLEY, Judge.

license: Public Domain

text:
    Cecil BIRDSONG, Appellant, v. The STATE of Texas, Appellee.
    No. 37114.
    Court of Criminal Appeals of Texas.
    Feb. 10, 1965.
    Rehearing Denied March 17, 1965.
    Glen Sutherland, El Paso, for appellant
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is drunk driving; the punishment, 30 days in jail and a fine of $50.

The information alleged that on or about the 29th day of September, 1962, in said County of El Paso, appellant “did then and there unlawfully while intoxicated and while under the influence of intoxicating liquor, ■drive and operate a motor vehicle, to wit, an automobile, upon a public road and highway in said state and county.”

While no motion to quash or exception to the information is shown in the rec■ord, appellant’s first claim of error is that the information is indefinite and uncertain in that (1) It does not allege a certain day; (2) Does not allege any certain place in the very large County of El Paso where the alleged offense was committed.

We find no merit in the contention that the information, in view of Arts. 396 and 398 C.C.P., is not sufficiently definite. Nichols v. State, 120 Tex.Cr.R. 219, 49 S.W.2d 783; Barner v. State, 162 Tcx.Cr.R. 73, 282 S.W.2d 221; Spradlin v. State, Tex.Cr.App., 368 S.W.2d 210.

The sufficiency of the evidence to sustain the jury’s verdict is not questioned. Claimed ■errors in the admission of certain testimony will be considered in connection with a statement of the evidence.

The undisputed evidence shows that, while driving his 1952 Chevrolet automobile ■on an El Paso street about 4 P.M. on September 29, 1962, appellant’s car left the street, ran over the curb and through a chain link fence and a rock wall about four and a half feet high, and came to rest against a tree in the yard of Gregorio Martinez.

Appellant was alone in the car and remained in the driver’s seat and was trying to start it, though it “was pretty well banged up” and he was told that it was useless because all the water had run out of it

Gregorio Martinez, who was at work at -the time, testified that he got home about 7 P.M. and saw the damage that had been done to the chain link fence that divided his front and back yards, and his rock fence. Mr. Martinez was asked and answered:

“Q. And did your children play in that back yard ?
“A. No sir, not at that time, they were in the house.”

Appellant’s objection was sustained and, at his request, the jury was instructed not to consider the question or the answer for any purpose.

The witness was then asked: “Mr. Martinez, do you have any idea the extent in money, what was the extent of damages to your chain link fence and your block wall ?” Appellant objected on the ground “that is not material” and his objection was sustained.

We see no merit in appellant’s claim of error in regard to the examination of this witness.

Patrolman Darrell Gilbert, who was dispatched to the scene to investigate an accident, testified that he found the appellant sitting in the driver’s seat of the car that was in the yard against a tree. He described it as a Chevrolet automobile that had gone through a chain link fence and through a brick wall and up against a tree.

Officer Gilbert testified: He asked appellant to get out of the car and to go to the patrol car, which he did; he asked for his driver’s license and appellant gave it to him; he asked appellant if he was hurt and he replied that he didn’t believe he was; he could smell a strong odor of alcoholic beverage on appellant’s person and asked him how much he had had to drink and appellant told him that he had drunk approximately four bottles of beer. He asked him if that was all and appellant “said he didn’t know for sure, that he didn’t keep track when drinking of how many he drank.”

Appellant objected and complains that the court erred in permitting Officer Gilbert to testify as to the statements of the appellant on the ground that appellant was under arrest.

We do not agree that the evidence supports appellant’s contention that he was under arrest. Even so, the statements complained of were a part of a conversation between the arresting officer and appellant at the time of the arrest and were admissible as statements incident to such arrest. Womack v. State, 160 Tex.Cr.R. 237, 268 S.W. 2d 140.

The witness Gilbert was asked and answered (regarding appellant’s operator’s license)

“Q. Was there anything unusual about it?
“A. Yes, it was expired.”

Appellant’s objection was sustained and, at his request, the trial judge instructed the jury not to consider the question or the answer for any purpose. The absence of a motion for ,mistrial disposes of the contention that no instruction could cure the error.

Appellant’s complaint that he was not taken before a magistrate before being taken to jail is without merit. Gilbert v. State, 126 Tex.Cr.R. 290, 284 S.W.2d 906.

Patrolmen Gilbert and Goodnow,. and Sgt. Burgess expressed the opinion that appellant was intoxicated. They testified that they observed him at the scene; conversed with him; observed that he swayed as he walked, that his speech was slurred and that he had the oder of intoxicants on his breath.

There was also testimony from the state’s witnesses that a half-pint whiskey bottle with some “just regular whiskey” in it was found in appellant’s car.

Appellant denied that there was whiskey in the bottle; denied that he admitted having drunk or that, he had drunk more than one bottle of beer, and testified that he was sober and that the cause of his accident was that the steering wheel on his car locked.

His testimony that he was . sober and had drunk only one bottle of beer, and that the whiskey bottle in the car contained oil, not whiskey, was corroborated by appellant’s witness Rufus McCoy.

The jury resolved the disputed issue, as to appellant’s being intoxicated, against him.

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.


author: McDONALD, Presiding Judge.

text:
    Ex parte Merle DODSON.
    No. 37627.
    Court of Criminal Appeals of Texas.

      Feb. 3, 1965.

      Don Lee Cotton, Sam W. Callan, El Paso, for appellant.
    Edwin F. Berliner, Dist Atty., Mike J. Thompson, Asst. Dist. Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

This is an appeal from an order of the '34th Judicial District Court of El Paso County remanding appellant to the custody ’-of the Sheriff of said County for delivery to an agent of the State of Missouri.

Appellant was arrested by the Sheriff’s Office of El Paso County, Texas, on July 8, 1964, under a warrant of the Governor of Texas dated July 1, 1964, ordering the arrest of appellant and his delivery to officers of the State of Missouri for return to that state to answer to a charge of “removing and concealing mortgaged property.” No statute from Missouri was introduced to show the laws of that State.

Appellant urges two bills of exception. His first is that removing and concealing mortgaged property is not an offense under the laws of the State of Texas. He cites the case of Ex parte Burns, 167 Tex. Cr.R. 533, 322 S.W.2d 289, which was a case where the relator was charged with “attempt to commit sodomy”. This court held that it was not shown that the relator is substantially charged in the demanding state with a crime under the laws of that state, since there was no showing as.to the law of the demanding state and there being no such crime in Texas. We have in the case at bar an entirely different situation. The appellant is charged with the offense of “removing and concealing mortgaged property”, either offense being a crime in the State of Texas under Arts. 1557, Vernon’s Ann.P.C., and 1558 V.A.P.C. An offense that an accused could neither be charged with nor tried upon, in Texas, would not be an extraditable offense. Appellant’s first contention is without merit and is overruled.

In his second bill' of exception, appellant contends that the State of Missouri did not prepare for and deliver to appellant copies of the necessary supporting papers. In Ex parte Moore, 158 Tex.Cr.R. 407, 256 S.W.2d 103, this court held that the provision pertaining to the furnishing to an accused of copies of instruments accompanying requisition is directory only, and becomes mandatory only when request has been made by the fugitive. In examining the record in this cause there is no such request made by said appellant, and therefore the failure to furnish appellant with copies would not be error where no request is shown. Even if the demanding state had not furnished enough copies, photostatic copies of extradition papers which were certified by the Secretary of State as true and correct copies of the original constitutes substantial compliance with section 3 of Art. 1008a, C.C.P., Ex parte Thompson, 171 Tex.Cr.R. 509, 351 S.W.2d 890.

The judgment of the trial court is affirmed.


author: DICE, Commissioner. MORRISON, Judge

text:
    Benny T. JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 37650.
    Court of Criminal Appeals of Texas.
    March 3, 1965.
    Enoch G. Fletcher, Grand Saline, for appellant.
    Ralph Prince, Dist. Atty., Longview, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for forgery; the punishment, two years.

At the trial it was shown by the state’s testimony that, on the date alleged, the appellant presented to the prosecuting witness, Robert Jackson, an employee of Ballard drugstore in the city of Longview, state’s exhibit #1, which was a check dated May 27, 1963, at Kilgore, Texas, drawn on the Citizens State Bank & Trust Co., in the sum of $34, payable to Benny T. Jones and signed by J. E. Kraft. After appellant produced his driver’s license and endorsed his name, address, and license number on the back of the check, Jackson accepted the check and gave appellant the sum of $34 in cash. The check, upon being deposited in the bank for payment, was. returned unpaid. Special investigator Marvin Kendall, of the district attorney’s office, testified that he made a search for J. E. Kraft and failed to find any such person. He stated, however, that a person by the ñamé of James Craft, whose initials he believed were “J. E.,” was known to him.

Testifying as a witness in his own behalf, appellant admitted presenting the check to the prosecuting witness but swore that he filled out the check, and signed the maker’s name thereto upon instructions of one “J. E. Kraft (Or Craft),” with whom he was engaged in a joint venture of passing worthless checks. Pie stated that while his companion usually signed checks in the name of “James Craft,” he had seen him spell the name both “Kraft” and “Craft.” He further testified that he wrote the check in question while he and his companion were seated in an automobile in front of the drugstore and that when, by mistake, he wrote the maker’s name “J. E. Kraft,” his partner-in-crime said it would make no difference to appellant because the check would “bounce back to him personally.”

Under the court’s charge, the jury was required, before convicting appellant, to find from the evidence beyond a reasonable doubt that, with intent to defraud and without lawful authority, he did falsely make the check in question, purporting to be the act of another, to-wit: J. É. Kraft.

No instruction was given by the court which would have submitted to the jury the appellant’s affirmative defense of lawful authority to make the check in question. Certain requested charges were presented by him and refused by the court which were sufficient to call the court’s attention to such omission.

Recently, in Barton v. State, Tex.Cr.App., 361 S.W.2d 716, in reversing a forgery conviction for the court’s failure to submit a defensive issue to the jury, we said:

“It is well settled that an accused is entitled to an affirmative instruction on the law as to every defensive issue raised by the evidence, even though such issue he raised by his testimony alone. Patterson v. State, 164 Tex.Cr.R. 121, 297 S.W.2d 183, and the cases there cited. See also 31 Tex.Juris.2d, Sec. 108, p. 656.”

While appellant’s explanation of the transaction is not to he condoned, his testimony was sufficient to raise the defensive issue of his authority to make the check and, under the record, the court fell into error in failing to submit such an issue to the jury. McCay v. State, 32 Tex.Cr.R. 233, 22 S.W. 974; Knowles v. State, Tex.Cr.App., 74 S.W. 767; White v. State, 61 Tex.Cr.R. 498, 135 S.W. 562.

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

Opinion approved by the Court.

MORRISON, Judge

(dissenting).

I respectfully dissent to the reversal of this conviction. It is not a defense to crime that one criminal has instructed or advised or encouraged his confederate to commit the crime. Appellant admitted that he and J. E. Craft worked together in giving bad checks, and one of them, which formed the basis of this prosecution, was signed J. E. Kraft and was admittedly written by appellant, who stated that “I think I signed it under his instructions.” No J. E. Kraft was known in the county of this ■prosecution, and J. E. Craft was shown to be in the Dallas jail. A man named Craft (as he was known to appellant’s father) has no authority to instruct his confederate in crime to utter a spurious instrument bearing the name Kraft and then claim that it is a worthless check instead of a forgery.

I respectfully dissent.


author: DICE, Commissioner.

text:
    Paulo T. ALCORTA, Appellant, v. The STATE of Texas, Appellee.
    No. 37715.
    Court of Criminal Appeals of Texas.
    March 3, 1965.

      Robert D. Nogueira, Beeville, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted, upon his plea of nolo contendere and waiver of a trial by jury, of the offense of negligent homicide of the first degree and his punishment was assessed at thirty days in jail and a fine of $100.

Art. .1237, Vernon’s Ann.P.C., provides that the punishment for negligent homicide of the first degree shall be “by confinement in jail not exceeding one year, or by fine not exceeding one thousand dollars.”

The judgment fixing appellant’s punishment at both a fine and imprisonment is unauthorized and therefore void. Self v. State, 132 Tex.Cr.R. 234, 104 S.W.2d 16.

For such reason, the judgment is reversed and the cause is remanded.

Opinion approved by the Court.


text:
    Zeno GREEN, Appellant, v. The STATE of Texas, Appellee.
    No. 37753.
    Court of Criminal Appeals of Texas.
    March 3, 1965.
    Joe R. Carroll, Snyder, for appellant
    Wayland G. Holt, Snyder, Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is passing as true a forged instrument in writing; the punishment, enhanced by two prior convictions for felonies less than capital, life.

The facts are thus stated in appellant’s brief:

“Interpreting the evidence in a light most favorable to the state, Zeno Green, a Negro man, in company with one Robert Hood, a white man, during the daylight hours, went to a service station owned and operated by Ed Neves, and asked the said Neves to cash a check which is the subject of this prosecution. Neves at first refused to cash the check, and upon the assurance of the said Robert Hood, a regular customer of Neves, that he the said Robert Hood would stand good for the check, Ed Neves cashed the check in question and it subsequently developed that such check was a forgery. Ed Neves, Robert Hood, and James Collins, an employee of Ed Neves, all identified Zeno Green as being the person who presented the check to Ed Neves and obtained cash therefor.

“The state proved that Zeno Green had been twice previously convicted of felony offenses less than capital, and the jury found that he was guilty of the primary offense and that he had been twice previously convicted of felony offenses less than capital. Accordingly, the Court sentenced the said Zeno Green to life imprisonment, and after the defendant’s motion for new trial was overruled, this appeal was taken.

“The defendant did not testify nor offer any evidence.”

The check described in the indictment was introduced in evidence.

Reversal is sought upon the ground that the trial court erred in overruling appellant’s objections to the court’s charge. First, his objection to the charge relating to the prior convictions and the form of verdict to be returned if the jury found him guilty of passing a forged instrument and the instruction: “and you further find and believe from the evidence beyond a reasonble doubt that the state has proved to your minds” that the defendant committed and had been previously convicted of the prior offenses alleged.

The charge is substantially in the form set out in 1 Branch’s Ann.P.C.2d, p. 689, and in Erisman’s Manual of Reversible Errors, Section 618.

The paragraph of the court’s charge setting out the definition of forgery found in Art. 979 P.C. was objected to on the ground that such portion of the charge was calculated to lead the jury to believe that appellant was guilty of forgery.

The preceding paragraph informed the jury that appellant was charged with unlawfully passing as true, to Ed Neves, the forged instrument set out in the indictment, and the succeeding paragraph is in the language of Art. 996 P.C., which provides a punishment for knowingly passing as true any such forged instrument.

If there was error in the charge it was not such as was calculated to injure the rights of appellant or to deprive him of a fair and impartial trial, hence would not call for reversal. Art. 666 C.C.P.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Robert A. BELL, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 37655.
    Court of Criminal Appeals of Texas.
    Feb. 3, 1965.
    Rehearing Denied March 10, 1965.

      Howard O. Lake, Houston, Aubrey Edwards, Big Lake, Thomas R. Scott, Fort Stockton, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is robbery by assault with a prior conviction for an offense of the same nature alleged for enhancement; the punishment, life.

Manager Wolf rum and Assistant Manager Ridgeway of Evans Foodway in Mc-Camey testified that right at closing time •at about 7:00 p. m. on the night in question appellant asked to be admitted to the store in order to purchase some milk and bread, but that after gaining entrance he robbed them of a sum of money in excess of one thousand dollars in bills and silver by exhibiting a gold plated pistol. Wolfram identified the money bag containing the silver as belonging to his cash register No. 1.

. Highway Patrolmen Barber and Hager testified that they were notified of the robbery, and at 7:30 p. m. on the same evening as they were preparing to set up a road block some 30 miles from McCamey, they observed a Chevrolet pass them, proceed a distance west, then turn around and start traveling east. They stated that they gave chase, clocked the Chevrolet’s speed, found that it was exceeding the speed limit, stopped it and gave the appellant, its sole occupant, a speeding ticket. As they were talking to appellant they looked in the Chevrolet and saw a gold plated pistol lying on the front seat. Thereafter, they opened the doors and discovered Mr. Wolfram's-money bag full of coins and a large amount of currency lying loose on the floor board under the front seat. On the back seat they found a rifle, and two more were found in the trunk of the 1964 Chevrolet.

The prior conviction for robbery by assault was established.

Appellant did not testify but called his-mother, who testified that he had been committed to a mental institution at one time and was in a severe emotional state at the-time of the robbery because he had no money, his wife was expecting a baby, and he was out of a job, and expressed the opinion, that when he was in one of those emotional spells he did not know the difference between right and wrong.

Sheriff Echols testified that he had known-appellant since his youth and had observed' him daily and conversed with him many times during the eight months he had him in jail after the robbery and prior to the-trial. He stated that in his opinion appellant was normal and knew the difference-between right and wrong. He based his-opinion on his observation of more than. SO mentally ill people confined in his jail during his tenure in office.

Deputy Sheriff Langford testified that he-had observed appellant since he had been, in jail, but had noticed nothing wrong with-him mentally and expressed the opinion that he knew ’the difference between right and’ -wrong on the night of his arrest and thereafter.

The sole question properly presented for review is the court’s failure to quash the indictment because it contained the allegation of the prior conviction which appellant alleges precluded him from securing a fair and impartial jury. It is essential under Article 62, Vernon’s Ann.P.C., that the indictment charge the prior conviction in order for the State to prove the same.

Though not properly raised on appeal, we do observe that appellant did not elect to stipulate the prior conviction as this Court suggested in Salinas v. State, Tex.Cr.App., 365 S.W.2d 362; Pitcock v. State, Tex.Cr.App., 367 S.W.2d 864; Ex Parte Reyes, Tex.Cr.App., 383 S.W.2d 804, and McDonald v. State, Tex.Cr.App., 385 S.W.2d 253 (1964).

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


text:
    Don Nath RHODES, Appellant, v. The STATE of Texas, Appellee.
    No. 37666.
    Court of Criminal Appeals of Texas.
    Feb. 3, 1965.
    Rehearing Denied March 17, 1965.
    Robert B. Maloney, Dallas, for appellant.
    Henry Wade, Dist. Atty., John Nelms, Mike Everett, and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is aggravated assault; the punishment six months in jail.

In view of our disposition of this case a recitation of the facts is not deemed necessary other than to observe that the prosecuting witness Powell was the only witness for the State as to the actual assault. On cross •examination of Powell, appellant inquired. if he had no; filed a suit against appellant for $20,000.00. The State’s objection was sustained with the admonition of the Court to “Stay off the civil suit”. In the absence of the jury for the purpose of perfecting a bill of exception, it was stipulated that Powell, if permitted, would testify that he was the plaintiff in a civil suit in which he sought to recover said sum from appellant, that such suit was pending, and that it arose out of the same transaction from which this criminal prosecution stemmed, and that such testimony was offered for the purpose of showing bias of the witness Powell. The court overruled appellant’s tender of such evidence and appellant excepted.

In Hoffman v. State, 85 Tex.Cr.R. 11, 209 S.W. 747, this Court held that evidence that the prosecuting witness had brought a suit against the accused for damages growing out of the incident for which the accused was then on trial and that such suit was still pending was admissible to show the animus and interest of the witness.

In Vyoral v. State, 88 Tex.Cr.R. 34, 224 S.W. 889, this Court held that the injured party in the criminal action might be cross examined concerning a pending civil suit for damages which she had brought against accused growing out of the same incident.

In the recent case of Blake v. State, Tex.Cr.App., 365 S.W.2d 795, we held that evidence that the witness Stahlman, who was an officer and stockholder in a corporation which had brought a civil action against the accused growing out of the alleged embezzlement for which accused was being tried, was admissible to show bias of the witness. See also 1 Branch’s Ann.P.C. (2d) Art. 46, Sec. 185, p. 192.

We overrule the State’s contention that this question is not properly before this Court for review.

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


author: DICE, Commissioner. DICE, Commissioner.

text:
    John Wade GORDON and Loyd Ray Gordon, Appellants, v. The STATE of Texas, Appellee.
    No. 37534.
    Court of Criminal Appeals of Texas.
    Jan. 6, 1965.
    Rehearing Denied March 3, 1965.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellants were convicted, upon their pleas of guilty and waiver of trial by jury, of the offense of burglary, with punishment assessed each appellant at three years in the penitentiary.

The record contains no statement of facts or bills of exception.

The judgment entered by the court orders that appellants be punished by confinement in the penitentiary for a term of not less than two nor more than three years. An examination of the record reflects that the punishment assessed was three years.

Appellants were sentenced under Art. 77S, Vernon’s Ann.C.C.P., to indeterminate terms of two to three years in the penitentiary.

The judgment is reformed to provide that appellants each be confined in the penitentiary for a definite term of three years.

As reformed, the judgment is affirmed.

Opinion approved by the Court.

ON APPELLANTS’ MOTION FOR REHEARING

DICE, Commissioner.

In our opinion on original submission, we reformed the judgment rendered against the appellants to provide that each be punished by confinement in the penitentiary for three years and, as reformed, affirmed the judgment.

It is now made known and the state concedes that the judgment actually rendered against the appellant Loyd Ray Gordon fixed his punishment at confinement in the penitentiary for a term of two years. Accordingly, the judgment and sentence as to him are reformed so as to provide that he be confined in the penitentiary for a term of two years.

The motion for rehearing as to the appellant John Wade Gordon is overruled.

Opinion approved by the Court.


text:
    John Michael MOCIO, Appellant, v. The STATE of Texas, Appellee.
    No. 37862.
    Court of Criminal Appeals of Texas.
    March 3, 1965.
    No attorney of record on appeal, for appellant.
    Doug Crouch, Dist. Atty., Jack Beech, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty.,-Austin, for-the State.
   McDONALD, Presiding Judge.

The offense is driving while intoxicated, misdemeanor; the punishment, a $50.00 ■fine and confinement in the county jail for three (3) days.

No statement of facts accompanies the record.

By formal hill of exception appellant points out that the Court corrected the information showing the name of the appellant to be John Mocio, rather than John Mocip, after appellant’s counsel had pointed out this discrepancy. Appellant urges as error the action of the trial court in amending or correcting the information, which was done over his objection.

We find no error in the action of the trial court. The proceedings were .authorized by Arts. 496 and 503, Vernon’s Ann.C.C.P., and the change in the information did not constitute a fatal variance between it and the complaint. 1 Branch’s Ann.P.C., 2d Ed., Sec. 486, p. 472, and cases there cited. Also, see Driver v. State, Tex.Cr.App., 339 S.W.2d 208.

.The judgment is affirmed.


author: PARKER, Justice.

text:
    GULF OIL CORPORATION, Appellant, v. Donald CANTRELL et ux., Appellees.
    No. 6739.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 21, 1965.
    Rehearing Denied Feb. 17, 1965.

      William F. Erwin, Jr., Houston, for appellant.
    Sample & Walker, Beaumont, for appel-lees.
   PARKER, Justice.

This is a venue suit. Donald Cantrell and wife, Jean Cantrell, appellees, sued appellant Gulf Oil Corporation and Walter J. Brightwell for damages because of alleged slanderous statements made by Walter J. Brightwell, as an employee of Gulf, to Jean Cantrell in the presence of others. The trial court overruled the plea of privilege of appellant, Gulf Oil Corporation, to have this case transferred to Harris County, Texas, county of appellant’s residence in the State of Texas. The findings of fact and conclusions of law by the trial court are as follows:

“I find that slanderous words were uttered by William J. Brightwell, Jr. defaming the character of Donald Cantrell, the plaintiff, in the presence of his wife, Mrs. Donald Cantrell, and the service station attendant, St. Clair, and the landlady, Mrs. B. C. Payne, and that the words were uttered in Jefferson County, Texas; that the'plaintiffs lived in Jefferson County at the time the words were uttered, and at the time the suit was brought, and that they still live in Jefferson County, Texas; and that the said Brightwell was acting in the course and scope of his employment for the Gulf Oil Corporation; and, further, that uttering of the words was related to the business and the furtherance of the business affairs of Gulf Oil Corporation; that the words spoken were susceptible of a meaning which charged Donald Cantrell with a crime.
“I find the following:
“1. The date the Plea of Privilege of the Gulf Oil Corporation was filed with the Clerk of the District Court of Jefferson County, Texas, was January 17, 1964.
“2. That a copy of the Plea of Privilege of the Gulf Oil Corporation was received by the attorney, Ernest L. Sample, attorney of record for the plaintiffs, on January 17, 1964.
“3. That the Plaintiffs’ Controverting Plea to the Defendant’s Plea of Privilege was filed with the Clerk of the District Court of Jefferson County, Texas, on the 28th day of January, 1964. I also further find that good cause existed for the plaintiffs’ late filing. I conclude, as a matter of law, that the Plaintiffs’ Controverting Plea of Privilege should be admitted and considered.”

Appellant urges that the trial court erred in overruling appellants plea of privilege for the reason that “good cause” was not shown justifying the late filing of appellees’ controverting plea. We will consider the facts bearing upon “good cause”.

The filing of the controverting plea within the ten day period provided by Rule .86, Texas Rules of Civil Procedure, is mandatory and jurisdictional unless: (1) An enlargement of time is requested by the plaintiff prior to- the expiration of the ten day period as provided by Rule 5, T.R.C.P.; or (2) the plaintiff can show good cause for failure to timely file his controverting plea.

Appellee did not request an enlargemént of time prior to the expiration of the ten day period but seventeen days after the expiration of the ten day period, to-wit on February 14, 1964, appellees filed a rriotion with the trial court to permit the late filing of their controverting plea on the ground that “good cause” existed for the late filing of the controverting plea. This instrument is styled “Reply of the Plaintiffs to the Defendant’s Motion to Strike Controverting Plea” and is sworn to by the sole attorney of record for appellees. The plea of privilege of appellant was filed with the Clerk of the District Court of Jefferson County, Texas, on January 17,1964, and a copy of same was received by said attorney of record for the appellees on the same day. On January 22, 1964, appellees’ said attorney mailed from his office in Beaumont, Texas, the draft of the controverting plea to appellees’ home in Beaumont with the request that they execute same before a notary and' return to his office. The evidence in the trial court on the hearing on the motion of appellant to strike plaintiffs’ controverting' plea does not reflect any further effort on the part of their said attorney during the ten day period to timely file a' controverting affidavit and also is silent as .to any good reason excusing or justifying the failure of said attorney to move for an enlargement of time within the ten day period .within which to file the controverting plea. Under Rule 14, T.R.C.P., the attorney of record for appellees, as such, was authorized to make the affidavit in connection 'with appellees’ controverting plea. Appellees’-attorney availed himself of such rule in his “Reply of the Plaintiffs to the Defendant’s Motion to Strike Controverting Plea”. Appellees’ attorney did not testify ; his secretary did not testify. Mrs. Donald Cantrell, one of thé appellees, did testify. She stated 'that she received the controverting plea on Januáry 22, 1964, at her ■home with’a request that it'be executéd before a notary- public and returned to the office of her .attorney. She and her husband made an attempt to, find- a notary on that day without success. Her baby became ill on January 23rd and it was not possible for her to execute this controverting plea until Tuesday,- January 28th, which is the day it was received by the .District Clerk.

The testimony of Mrs. Cantrell.is not questioned. It was the responsibility of her attorney to prepare and file the controverting plea. He failed to show "good cause” to justify or excuse his failure to not only prepare but also to see to the execution and filing of the controverting plea to appellant’s plea of privilege within the ten day period. Considering all evidence and every fact allegation contained in the “Reply of Plaintiffs to the Defendant’s Motion to Strike Controverting Plea”, “good cause” did not exist justifying the failure .of appellees’ attorney to not only prepare but to timely execute and file the controverting plea. Bogle v. Landa, 127 Tex. 317, 94 S.W.2d 154 (1936); Southern Insurance Co. v. Rogers, Tex.Civ.App. (1961), 342 S.W.2d 135 (no writ history); Bell v. Jasper Lumber Corp., Tex.Civ.App. (1956) 287 S.W.2d 746 (no writ history) and authorities cited on p. 747. Appellant’s point of error that “The trial court erred in overruling Appellant’s Plea of Privilege for the reason that Appellees’ Controverting Plea was not timely filed and ‘good cause’ was not shown justifying the late filing thereof” is sustained.

The effect of the filing of the plea of privilege by Gulf Oil Corporation, appellant, and the controverting affidavit invoking Subd. 29 of Art. 1995, Vernon’s Ann.Tex.Civ.St., was to impose on ap-pellees, plaintiffs in the trial court, the burden of proving on the hearing of the plea of privilege that a cause of action for slander in fact accrued in their favor. Lyle v. Waddle, (1945) 144 Tex. 90, 188 S.W.2d 770. The venue facts on the hearing on the plea of privilege should have been proven in the same manner as proof of facts in a trial on the merits. Compton v. Elliott, Tex. Com.App. (1935), 88 S.W.2d 91 (opin. adopted by S.Ct.). In a slander suit proof on the merits must conform to the pleadings. The same rule applies to a venue hearing. Appellees alleged throughout their petition that the defendant .Brightwell accused the appellee Donald Cantrell of signing someone else’s name to a courtesy card ticket, without authorization, and in that manner obtaining merchandise. Ap-pellees alleged that this was an allegation of forgery. Also appellees alleged that the defendant, Brightwell, was acting in the course of his employment by appellant. Ap-pellee Jean Cantrell testified that the defendant Brightwell, in her presence and in the presence of others, accused her husband, Donald Cantrell, one of the appellees herein, of signing his own name to a courtesy card ticket, using the credit card of another person. Counsel for appellant moved to strike all of such testimony of this witness on the grounds that there was no pleading to support it and that such testimony showed a fatal variance between the pleadings and the proof. This motion to strike her testimony was overruled by the trial court and exception to such action and ruling duly taken. The allegation in ap-pellees’ petition was an accusation that appellee Donald Cantrell committed a forgery. See Art. 979, Texas Penal Code. Appellees’ proof was that Brightwell accused the appellee, Donald Cantrell, of signing his own name to a courtesy card ticket upon the courtesy card of another person. Such an act cannot be forgery because there was no “false instrument in writing purporting to be the act of another”. Appel-lees did not prove their alleged cause of action.' Appellant’s point of error that “Ap-pellees’ suit, seeking damages for slander, was filed in a county other than the residence of Appellant, and the trial court erred in overruling Appellant’s Plea of Privilege because Appellees failed to plead and prove a cause of action” is sustained. Appellant’s point of error that “The trial court erred in overruling Appellant’s Plea of Privilege because there was a fatal variance between Appellees’ pleading and proof at the venue hearing” is sustained.

The judgment of the trial court is reversed and judgment is here rendered transferring this cause as between appellees and appellant only to the District Court of Harris County, Texas.


text:
    Charles DOBSON, Appellant, v. Mrs. Rosie KYLE et vir, Appellees.
    No. 6720.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 4, 1965.

      Clarence D. Cain, Liberty, Robert S. Tucker, Dayton, for appellant.
    Harold Metis and Thos. A. Wheat, Liberty, for appellees.
   PARKER, Justice.

This is a child custody case. Mrs. Rosie Kyle and her husband sued Charles Dobson for the care and custody of Diann Dobson and for the support and maintenance of such child. The district court of Liberty County, Texas, rendered its judgment on the 1st day of 'November, 1963, which was “pronounced, dated and entered on the 27th day of December, 1963” awarding the permanent care, custody and control of Diann Dobson, a minor child born May 11, 1954, to the mother of said child, Mrs. Rosie Kyle, appellee. Appellant was ordered to pay $60.00 per month toward the support of said minor child. Order overruling motion for new trial was dated February 18, 1964, and notice of appeal given by appellant on same date. Transcript was filed in this court on March 12, 1964, hut the statement of facts was not filed in time to be considered by this court. The statement of facts will not be considered.

The judgment entered in said cause is as follows:

“BE IT REMEMBERED that on the 1st day of November, 1963, at a regular term of this Court, before P. C. Matthews presiding as Judge of said Court, wherein Mrs. Rosie Kyle and her husband, Henry Kyle, are Plaintiffs and Charles Dobson is Defendant and came the parties in person and by and through their respective Attorneys of Record and announced ready for a trial on the merits, and no jury having been requested by either the Plaintiffs or the Defendant, submitted to the Court, without the intervention of a jury, all matters of fact and of law, and the Court having considered and fully understood the pleadings, evidence and argument of Counsel for both parties, is of the opinion that the Plaintiffs, Mrs. Rosie Kyle, joined by her husband, Henry Kyle, should prevail and that the custody, present care and control of Diann Dobson, a minor girl born on May 11, 1954, the child of the marriage of the Plaintiff, Mrs. Rosie Kyle, and the Defendant, Charles Dobson, should be changed from the Defendant, Charles Dobson, and that the Plaintiff, Mrs. Rosie Kyle, should be awarded the. custody, present care and control of said minor, Diann Dobson. In connection with said change of custody, the ' Court finds as a fact that there has. been a substantial change of circumstances since the Defendant, Charles Dobson, was awarded the custody of said minor child, Diann Dobson, in Cause No. 524,402, styled Charles Dob-son vs. Rosie Whiddon and husband, Wade Whiddon, in the Court of Domestic Relations of Harris County, Texas, which said Judgment is recorded at Volume 53, Page 522 of the General Minutes of the Courts of Domestic Relations, Harris County, Texas, so that now the best interest of said minor child will be served by awarding the custody of said minor child, Diann Dobson, to the Plaintiff, Mrs. Rosie Kyle, who is the natural mother of said Diann Dobson.
“It is, therefore, ORDERED, ADJUDGED and DECREED that the order of the Court of Domestic Relations of Harris County, Texas, entered in Cause No. 524,402 be, and it is hereby modified so that the Plaintiff, Mrs. Rosie Kyle, shall have the present care, custody and control of Diann Dobson, a minor child born May 11, 1954. It is further ORDERED of this Court that the Defendant, Charles Dobson, have the right of reasonable visitation with said minor child, Diann Dobson, upon reasonable notice given to the Plaintiff, Mrs. Rosie Kyle, and provided that the Defendant, Charles Dobson, be free of the influence of intoxicating liquor.
“It is further ORDERED of this Court that the Support Order entered by the District Court of San Jacinto County, Texas, in Cause No. 7119, styled Rosie Dobson vs. Charles Dobson entered on the 14th day of May, 1955, wherein the Defendant, Charles Dob-son, was ordered to pay Sixty and No/100 ($60.00) Dollars per month toward the support of said minor child, Diann Dobson, be and the same is hereby ratified, confirmed and adopted.
“It is further ORDERED, ADJUDGED and DECREED that the Defendant pay all costs of court for which let execution issue.
“PRONOUNCED, DATED and ENTERED this the 27 day of December, 1963.” ~

The pleadings contained in plaintiff’s original petition support such judgment. There are no findings of fact other than those recited in the judgment itself. It is not open to question that in the absence of a statement of facts, every presumption must be indulged in favor of the trial court’s findings and judgment and that such facts as are necessary to support the judgment, in addition to those contained in the judgment itself, are presumed to have been found. Commercial Credit Corp. v. Smith, 1945, 143 Tex. 612, 187 S.W.2d 363, 365. As stated in such opinion, it follows that the judgment of the trial court must be affirmed unless the record here presents on its face fundamental error of law. Appellant asserts that the court erred in entering and rendering the final judgment when the docket entries of the court show that the original setting of the hearing was for the temporary custody of the minor child, Diann Dobson. If the docket entries were contrary to the recitations contained in the final judgment, they could not change or enlarge the final judgment as entered in the minutes of the district court. Hamilton v. Empire Gas & Fuel Co., 134 Tex. 377, 110 S.W.2d 561 (1957, opin. of the Commission adopted by S.Ct.).

Appellant also argues that he was denied the right to request a jury for the determination of permanent custody upon proper setting for trial on the merits of the question of permanent custody because he was only appearing for hearing upon temporary custody. This is contrary to the recitation in the final judgment, which reads as follows: “and came the parties in person and by and through their respective attorneys of record and announced ready for trial on the merits.”

Appellant also claims error on the part 'of the court in entering its final judgment which reads in part as follows: “and no jury having been requested by either the plaintiff or the defendant, submitted to the court without the intervention of jury all matters of fact and law”. The recitations of the judgment control.

The judgment and its recitations being to the contrary of appellant’s points of error, each and all of appellant’s points of error are overruled and the judgment of the trial court is affirmed.


text:
    Willard C. GOSHORN, Appellant, v. Samuel C. HATTMAN et ux., Appellees.
    No. 6719.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 14, 1965.
    Rehearing Denied March 3, 1965.

      Stephenson, Stephenson & Thompson, Orange, for appellant.
    Keith, Mehaffy & Weber, Beaumont, for appellees.
   PARKER, Justice.

Willard C. Goshorn sued Samuel C. Hattman and wife, Johnnie H. Hattman, for damages due to personal injuries sustained by Mrs. Goshorn in a collision between two automobiles, one driven by Mrs. Goshorn and the other driven by Mrs. Hattman. In a trial to a jury both drivers were found, to be guilty of acts of negligence, each proximately causing the collision. Judgment was entered upon the jury verdict that Goshorn recover nothing as against the Hattmans.

The collision occurred at an uncontrolled intersection of Rein Street and Eleventh Street in Orange, Texas. Rein Street runs-east and west, Eleventh Street runs north and south. Mrs. Hattman was travelling south on Eleventh Street, while Mrs. Goshorn was proceeding east on Rein, so that before the collision the cars would have been approaching at right angles to each other with Mrs. Goshorn on the right hand side of Mrs. Hattman as they approached the intersection. The two cars arrived at the intersection at the same time.Mrs. Hattman’s car hit Mrs. Goshorn’s car —the front of the Hattman car striking Mrs. Goshorn’s left front door at a diagonal angle, but not a sideswipe. Mrs. Hatt-man saw Mrs. Goshorn as the latter was making her turn to the right into the intersection. Mrs. Hattman immediately applied her brakes. The jury found that Mrs. Goshorn failed to keep a proper lookout which was a proximate cause of the collision in question. Further, the jury found that Mrs. Goshorn failed to have her automobile under proper control, which was a proximate cause of the collision.

Mrs. Goshorn testified: She never saw Mrs. Hattman at any time before the collision; that she looked to her right but did not know whether she looked to her left or not, admitting that after she arrived at the intersection nothing obstructed her view to the left which was the direction from which Mrs. Hattman’s automobile was approaching the intersection; Eleventh Street was a wide street, it was upon Eleventh Street that the collision occurred; that she was headed east and, quoting exactly, from her testimony:

“ — a lots of people pull up and they don’t see a car coming, they ease around. If there was any traffic coming from the other direction, I might have been more particular, but there wasn’t any traffic coming from the right. It was a two-way street and there’s plenty of room to pass.
“Q. Well, so you were turning to. your right — so if she were coming from your left, you were turning right in front of her then? Is that not true?
. “A. Not necessarily. I was just turning right. I wasn’t turning right in front of anybody. I was just turning right on the street — easing around the corner about four or five miles an hour.”

Appellant urges there is no evidence to justify the submission of an issue to the jury as to whether or not Mrs. Goshorn failed to keep a proper lookout. Appellant also contends there was no evidence to support a jury finding that Mrs. Goshorn failed to keep a proper lookout. Such points of error are overruled.

Considering all the evidence, such finding of the jury that Mrs. Goshorn failed to keep a proper lookout is not so contrary to 'the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Appellant’s points of error contending (a) that there was insufficient evidence to support a jury finding that Mrs. Goshorn failed to keep a proper lookout, and (b) that such finding was against the greater weight and preponderance of credible evidence are overruled.

A special issue was submitted to the jury as to whether or not Mrs. Goshorn had her automobile under proper control, the jury answer being that she did not have her automobile under proper control. In its points of error appellant contends (a) that there was no evidence to support the submission of a special issue as to whether or not Mrs. Goshorn had her automobile under proper control; (b) there was no evidence to support a jury finding that Mrs. Goshorn failed to have proper control; (c) the issue should not have been submitted because Mrs. Goshorn had no ;duty of proper control toward Mrs. Háttman; and (d) that the submission of such issue was a comment on the weight of the evidence. Appellant did not timely object to the form of the special issue on proper control on the part of Mrs. Goshorn. Such contention was urged for the first time in appellant’s motion for new trial. Under Rule 272, Texas Rules of Civil Procedure, appellant waived any objections to the form of the issue on proper control. Even though Mrs. Hattman was under the statutory duty to yield the right-of-way, when she failed to do so the exercise of ordinary care may have required Mrs. Go-shorn as the operator of the other vehicle to apply her brakes, which she did not do, or take other evasive action as to speed and direction of the automobile she had the duty of controlling. The question of proper control is tied into the question of proper lookout. Mrs. Goshorn failed to keep a proper lookout which resulted in her failure to attempt in any manner to properly control her car. To use Mrs. Goshorn’s language, she “might have been more particular, but there wasn’t any traffic coming from the right.” She did not concern herself with traffic to her left. There is no merit in appellant’s “no evidence” points of error relating to proper control of the car. See McWilliams v. Muse, 157 Tex. 109, 300 S.W.2d 643 (1957). Be that as it may, since the jury found Mrs. Goshorn failed to keep a proper lookout on the occasion in question, which was a proximate cause of the collision, thereby barring appellant’s recovery in this suit, the submission of an issue as to whether or not Mrs. Goshorn had proper control of her car was not calculated to cause and probably did not cause the rendition of an improper judgment as required by Rule 434, T.R.C.P. Appellant’s points of error relating to the issue on whether Mrs. Goshorn had her automobile under proper control are overruled.

The jury found that Mrs. Goshorn would not necessarily incur in the future any doctor bills, hospital bills or medicines as the result of her injuries. There is some evidence from Dr. Williams to the effect that she would probably need to consult a doctor about once a month and buy medicine, with a total future expense of not ■over $9.00 a month; however, the same doctor testified he had not treated her for her injuries for many months hut had treated her for other complaints. Mrs. Goshorn admitted that Dr. Williams had not treated her for injuries since she had started seeing him. The treatment she received from him was for other things than her injuries. Appellant’s point of error complaining of the finding of the jury that Mrs. Goshorn would have no future expense of doctor bills, medicines, etc., as proof that the answer of the jury indicated a clear bias and prejudice toward the appellant is overruled. Further, appellant’s points of error urging that the jury finding of improper control, improper lookout and that there would be no future medical damages evidence a clear bias and prejudice against the appellant are without merit and are overruled.

Appellant urges that Officer C. D. Watson should have been allowed to testify about “facts observed or conclusions drawn as a result of his investigation.” In appellant’s motion for new trial, the only points complained of by the plaintiff below in his motion for new trial pertaining to the testimony of Officer Watson were (1) the trial court would not permit him to testify as to what the law was on right-of-way at an uncontrolled intersection, and (2) the trial court refused to permit Officer Watson to testify as to who entered the intersection first. Upon proper objection, the court excluded such evidence. Watson was not an actual witness to the accident but did investigate it. He was allowed to testify as to what he saw when he arrived at the scene of the accident, that is to say, the location of the cars, etc. Further, there is nothing in the record to indicate what Watson would have said had he been permitted to answer the questions. Officer Watson was permitted to testify as to the location of the two cars and other things he could see when he arrived upon the scene of the accident. The right-of-way issues were answered favorably to Mrs. Goshorn, so any testimony of Officer Watson that was excluded as to who had the right-of-way was harmless. The jury found that Mrs. Goshorn did not maintain a proper lookout and did not maintain proper control of her car, thereby barring recovery by appellant. If there was any error in the trial court’s ruling on the testimony of Officer Watson, the claimed errors were harmless and would not amount to such a denial of the rights of appellant to reasonably cause and probably did cause an improper judgment in the case. Rule 434, T.R.C.P. Appellant’s point of error with reference to the exclusion of Officer Watson’s testimony is overruled.

Dr. Halbert and Dr. Williams were partners and treated Mrs. Goshorn. Immediately after the accident, Dr. Halbert treated Mrs. Goshorn for her injuries most of the time, although Dr. Williams saw her occasionally. Dr. Halbert went into the service and was not available upon the trial. After he went into the service, Dr. Williams treated Mrs. Goshorn. Dr. Howard Williams was a witness for appellant. His direct testimony was based partly upon the records “in the name” of Dr. Halbert up to a certain point. The same charts were used by Dr. Halbert and by Dr. Williams. Appellant objected to Dr. Williams testifying on cross-examination as to the notes and records that Dr. Halbert entered during the course of his treatment of the injuries incurred by Mrs. Goshorn in this collision. These records of Dr. Halbert were admissible under Art. 3737e, Vernon’s Ann.Civ.St., as such statute has been construed in Travis Life Ins. Co. v. Rodriguez, (Tex.Civ.App.1959) 326 S.W.2d 256, approved by Supreme Court of Texas in a Per Curiam opinion, 160 Tex. 182, 328 S.W.2d 434 (1959). The records in the name of Dr. Halbert as to which Dr. Williams was allowed to testify were favorable to appellant’s proof of substantial injury to his wife. Upon the objection of counsel for appellant, the trial court properly excluded a report in the form of a letter from Dr. Halbert to said counsel, Mr. -Stephenson. Dr. Williams was not allowed to comment on the contents of such letter. The jury found the appellant’s wife guilty of contributory negligence in failing to keep a proper lookout which barred appellant’s recovery. The questioning of Dr. Williams in no manner involved the question of proper lookout. Such questioning of Dr. Williams by appellees’ counsel, if erroneous, was not calculated to cause and probably did not cause the rendition of an improper judgment as required by Rule 434, T.R.C.P. Appellant’s points of error directed at the questioning of Dr. Howard Williams as to Dr. Halbert’s office records by appellees’ attorney are without merit and are overruled.

Judgment of the trial court is affirmed.


author: HIGHTOWER, Justice.

text:
    Walter T. BARROW et al., Appellants, v. The ENTERPRISE COMPANY, Appellee.
    No. 6627.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 31, 1964.
    Rehearing Denied Neb. 17, 1965.
    Adams & Browne, Beaumont, for appellants.
    Orgain, Bell & Tucker, Beaumont, for appellee.
   HIGHTOWER, Justice.

Appellants sued appellee for libel. Summary judgment for appellee was rendered by the trial court upon the proposition that appellants’ pleadings stated no cause of action for libel.

The alleged libelous matter, as set out in appellants’ pleadings, referred to a deceased person and did not refer to any appellant. In no manner did it mention the name of any appellant and did not refer to or identify any appellant, directly or indirectly. No person reading the publication could ascertain from its contents that any appellant was referred to or was intended by the publisher to be referred to. Therefore, the trial court correctly held that the appellants stated no cause of action for libel. Newspapers, Inc. v. Matthews, 161 Tex. 284, 339 S.W.2d 890 (1960); Renfro Drug Co. v. Lawson, 138 Tex. 434, 160 S.W. 2d 246, 146 A.L.R. 732 (1942).

In deference to the appellants’ conviction that the publication is harmful to them, we have omitted its contents herein.

Judgment of the trial court is affirmed.


author: SHARPE, Justice. NYE, Justice

text:
    Marion R. UEHLINGER et al., Appellants, v. STATE of Texas, Appellee.
    No. 43.
    Court of Civil Appeals of Texas. Corpus Christi.
    Feb. 11, 1965.
    Rehearing Denied March 4, 1965.

      Fisher Alsup, Corpus Christi, for appellants.
    Winston P. Crowder, Asst. Atty. Gen., Austin, for appellee.
   SHARPE, Justice.

This is a condemnation case brought by the State of Texas, appellee, at the request of the State Highway Commission. The appellants are Mrs. Marion R. Uehlinger, individually and as guardian of the persons and estates of her two minor daughters, Julia Maurine Uehlinger and Eleanor Elaine Uehlinger, and also the said two minors, all of whom were condemnees and defendants in the trial court. The case involves the whole taking of a 3.1714 acre tract, located in the City of Corpus Christi, Texas, excluding certain mineral interests, for which the judgment, based upon a jury verdict, awarded appellants the sum of $8,750.00.

Appellants assert nine points of error. Points one through four attack the jurisdiction and authority of the trial court to proceed to trial or to enter judgment involving the interests of said minors, principally because citation was not issued or served on them after the filing in the County Court of the State’s objection to the .award of the commissioners, and for the reason that a guardian ad litem was not appointed to represent the minors’ interests upon the jury trial in said court.

Point five asserts error because the trial judge excluded the testimony of a State’s witness concerning his first appraisal of the property in question, which gave it a higher value than that shown by his later appraisal. Appellants’ points six through nine complain of an instruction to the jury that in fixing market value of said property, it would “not take into consideration the increased value of said * * * land due to such highway construction.”

For the reasons hereafter more fully discussed we have concluded that appellants’ first four points reflect error for which the case must be reversed and remanded for new trial. Since it appears that some of the important questions raised by points five through nine may arise on a new trial, we believe that some discussion of them is indicated.

The petition in condemnation herein was filed with the County Judge on February .27, 1963, and Commissioners were appointed on the same date. At the request of appel-lee, a guardian ad litem was named to represent the minors prior to the hearing before the Commissioners. Proper notice of such hearing was given to all parties. Ap-pellee objected to the award of the Commissioners, made on March 23, 1963, and appealed to the County Court of Nueces County, Texas. The case was tried to the court and jury on July 8th and 9th, 1963. The jury answered the single special issue submitted to it by fixing the market value of the property on July 9, 1963, at $8,750.00. Judgment was rendered that appellants recover such amount, that the State of Texas have fee simple title to the tract involved, excluding certain mineral interests, and for payment of taxes to agencies not involved in this appeal. . The State did not pay or deposit the amount awarded by the Commissioners prior to the trial herein nor did it theretofore take possession of the land in question. It is agreed, under such circumstances, that the date of taking was July 9, 1963, i. e., the date upon which the jury returned its verdict.

Appellants’ contentions under their points one through four largely arise for the reason that citation was not issued or served after the papers were filed with the County Clerk on April 10, 1963, pursuant to the appeal of the State, and because a guardian ad litem was not appointed to represent the minor defendants in connection with the trial in the County Court. Reliance is placed, particularly, upon Section 6, Art. 3266, Vernon’s Ann.Tex.Civ.St., which provides that upon the filing of objections to the award of the Commissioners, the adverse party shall be cited and the cause shall be tried and determined as in other civil cases in the County Court

We recognize the rule that a minor defendant cannot waive service of citation like an adult and cannot authorize someone else to do so for him. In this case the record shows that Mrs. Marion R. Uehlinger is the legally appointed guardian of the persons and estates of her two minor daughters and that she appeared in the County Court individually, and as guardian for said minors upon the trial of this case. The same attorney who represents appellants in this Court purported to act for all of them in the lower court. Hence, the question is presented as to whether the voluntary appearance and participation in the County Court trial by such guardian, on behalf of herself and her wards, made unnecessary the issuance and service of citation on the minors and authorized the lower court to exercise jurisdiction over the minors’ interests in the property sought to be condemned.

It is provided, in substance, by Section 7, Article 3264, V.A.C.T.S., that notice of the Commissioners’ hearing shall be given to a minor who owns property sought to be condemned by serving his personal representative if he has one. That such notice was properly given in this case is not questioned. Section 230(b), Texas Probate Code, V.A.T.S. authorizes the guardian of the estate of a minor to sue and defend generally on the ward’s behalf, and Article 1981, V.A.C.T.S., contains additional provisions relating to institution of suits by guardians concerning both real and personal property. However, it is well settled that the regular guardian of a minor’s estate cannot represent him in a suit if a conflict of interest exists between them.

The minors herein were named as individual defendants along with their guardian but were not served with citation in the County Court trial. While this matter was still an administrative proceeding, and prior to the hearing before the Commissioners, the State filed a motion in which it represented to .the court that a conflict of interest existed between the minors and their guardian as affects this proceeding. The County Judge granted the State’s motion, entered an order expressly finding that such conflict existed, and appointed a guardian ad litem who represented the minors at the Commissioners’ hearing but did not appear or participate in the County Court trial. The guardian ad litem was not authorized in such capacity to waive citation of service on the minors after the matter became a case in the County Court pursuant to the State’s appeal. There was no subsequent finding that this conflict of interest had ceased to exist. Such conflict of interest between the minor wards and their guardian required the trial court to appoint a guardian ad litem to represent the minors in the County Court trial. Unless jurisdiction of the individual wards had been acquired by proper service of citation (which could not be waived under the conditions prevailing here) the court had no authority to appoint a guardian ad litem or to proceed to trial as to the minors. So long as there is a legal conflict of interest between the guardian and the minors, the usual procedure of issuance and service of citation on all parties is required and a guardian ad litem should be appointed to represent the interests of the minors at the earliest practicable time in advance of the trial in the County Court.

For the reasons stated, appellants’ points one through four are sustained.

By their point number five, appellants contend that the trial court erred in sustaining appellee’s objection to the testimony elicited on cross-examination of the State’s witness, Henry Stone, to the effect that his first appraisal of the property in question, made in the month of November, 1961, showed the market value of the property to be $9,500.00, and his later appraisal of its market value as of the date of taking was some $2,000.00 less, and as to why such difference existed. The trial judge ruled -correctly in such connection. The record shows that between the dates of the two inspections by the witness Stone the improvements on the property in question had been damaged by third persons. Counsel for the State was aware of such fact prior to the trial and filed a motion in limine to suppress evidence of such damage which occurred prior to the date of taking by the State. When such testimony was offered at the trial out of the presence and hearing of the jury the trial judge simply adhered to his prior ruling. The State was liable only for the reasonable market value of the property as of the date of taking, which in this case was July 9, 1963, and not on some prior date. Appellants’ point number five is overruled.

Under points six through nine appellants complain of an instruction given to the jury in the exact wording requested by counsel for the condemnor (to which appellants say proper objections were made), as follows:

“You are instructed that in determining the market value of the 3.174 acres of land taken for highway construction you shall not take into consideration the increased value of said 3.174 acres of land due to such highway construction.”

Unfortunately, the record does not show that appellants’ objections were properly preserved for appellate review. The single objection to said instruction which is shown by the record is too general and cannot be considered. The specific objections allegedly made to said instruction, which are argued under appellants’ points six through nine, are not properly established by the record. The transcript contains two pages designated as appellants’ objections and exceptions to the court’s charge; but the signature or endorsement of the trial judge does not appear thereon and we cannot ascertain that such objections were presented to and ruled on by him. We, therefore, cannot properly consider appellants’ points six through nine as grounds for reversal. However, in view of a new trial, they will be further discussed.

The instruction to the effect that in fixing the market value of the property in question the jury would not give consideration to the increased value of the tract due to such “highway construction” is improper for a number of reasons.

First of all, the said instruction assumes as an undisputed fact that there had been an increase in value of said property due to “highway construction”. This is an improper comment on the weight of the evidence and prevents the jury from determining whether, in fact, there has been such increase in value. The value of said tract is necessarily to be determined by considering opinion testimony of the witnesses. Such opinion testimony does not establish any material issue as a matter of law. The effect of such an instruction is to prevent the jury from ascertaining the true market value on the date of taking by improperly assuming the fact of increase in value on account of “highway construction” which, at best, involves a disputed issue.

The instruction given in this case is subject to proper objection that it is a comment on the weight of the evidence. Also, the meaning of the term “highway construction” could be clarified, in view of testimony concerning other construction on the route of the highway involved, and interchanges between existing highways.

An instruction to a jury concerning the effect, if any, on market value of property as of the date it is legally taken for a public use, allegedly brought about by a highway construction project, should not exceed the narrow limits fixed by law and must be authorized by the facts of the particular case.

Article I, Section 17, Constitution of the State of Texas, Vernon’s Ann.St., provides, in substance, that adequate compensation shall be paid to the owner of property which is taken for a public use. The owner has a constitutional right to receive the reasonable market value of his property as of the date it is actually taken by the condemnor. Such date of taking is not to be reflected back to a previous time when the taking was first contemplated by the condemnor.

Where a person’s entire property is included in one general proceeding of condemnation, or the equivalent thereof, for a particular purpose, it is not permissible to consider the condemnor’s purpose or the results thereof in fixing the owner’s compensation; neither should the condemnor ordinarily, in a proper case, be required to pay for an increased value due to the public improvement itself.

However, an important distinction must be observed between enhancement in market value of the property being condemned resulting from a previous improvement on the one hand, and an increase in such market value resulting from the very improvement, contemplated or projected, for which the land is being acquired, on the other. The decision as to when specific property will be legally taken is with the condemnor, and if it is decided to take and construct independent segments of g project, the delay as to property later taken is chargeable to the condemnor, and the owner of such property should not by instruction or otherwise be deprived of its-reasonable market value on the date it is-actually taken. The rule is now well established that even though a specific parcel of land may have been considered by the condemnor to be a part of the original project, if the condemnor proceeds with acquisition of some portions of the project and unnecessarily delays as to other tracts, the owner of property later taken will be entitled to the reasonable market value of same on the date it is actually taken, including enhancement in value brought about for any proper reason, whether by preceding portions of said project or otherwise.

It is also highly important that the condemnor be required to make a proper showing in order to be entitled to a limiting instruction (which, if given should be correct in substance and in form) concerning the effect of the highway project upon the market value of the property being condemned. In the present case there was no-showing as to the date of the announcement or institution of the particular highway project here involved, the scope of it, or the relationship of the over-all project to the property owned by the condemneesherein. There was no showing as to when the instant property was designated for acquisition aside from February 27, 1963, the date upon which the petition for condemnation was filed with the County Judge. However, there is evidence by one of the-witnesses for the State that he first appraised the said property for the State in the month of November, 1961; and by another State’s witness that the route of the proposed highway, which affected appellants’ property, was generally known by about February 15, 1962. There is also evidence to the effect that a portion of the new highway had been constructed in the vicinity of the City of Corpus Christi, Texas, but such construction had not reached the property in question at the time of trial in July, 1963. There is no showing as to the date such construction began or the time or manner in which the right of way for same had been acquired, whether by common or simultaneous proceedings or by separate proceedings as to independent units; nor is there a showing as to the lapse of time between the prior takings and the instant one. The record is silent as to the reasons why the State failed to institute condemnation proceedings herein at an earlier date or to make payment or deposit the amount awarded by the Commissioners on March 23, 1963; which conduct on the part of the State resulted in fixing the date of trial as the date of taking in this case. Some of the witnesses testified concerning the influence of the proposed highway generally on market values of properties in the area, including comparable sales and as to the very property in question. Appellants made several objections to such testimony which were overruled. The argument for the State also mixed the matter of the highway project generally with a discussion of the instant property. It is apparent that the instruction given to the jury should be clarified in accordance with the cases herein cited.

In the case of City of Dallas v. Shakelford, 145 Tex. 528, 199 S.W.2d 503 (1947), the City delayed for about three years after a municipal public market project was announced before instituting condemnation proceedings to acquire the Shakelford property (consisting of four adjacent lots), having theretofore constructed portions of the market .project on other properties which had been-acquired in separate proceedings. The Supreme Court sustained the trial court’s refusal to submit an instruction requested by the condemnor which might have tended to affect the owner’s recovery. It appeared that the Shakelford property had not been designated by the City for immediate acquisition along with other properties to be purchased or condemned for the market project, and could not be considered to have been taken in a simultaneous or common proceeding. The Shakelford property, at the time it was finally taken, had been enhanced in value as a result of improvements made by the City on properties which had been acquired for the public market project in separate and disassociated proceedings. Under such conditions the court held that it was entirely proper for the jury to take into consideration the enhanced value of the Shakel-ford property at the time of the legal taking, even though brought about by previous steps taken on the part of the City towards the establishment of a municipal public market.

A much narrower instruction than the one involved in Shakelford concerning the relationship of the highway project to the market value of property being condemned, was held proper in a recent decision. Such instruction 'was applicable to the strip taken for highway purposes as well as to the value of the remainder owned by the condemnee, immediately before the taking of the strip in question. In addition to the cases hereinbefore cited, there are a number of others which discuss the basic rules applicable to jury instructions and to the admission and exclusion of evidence where the effect of the public improvement itself on the market value of the property being taken is involved. A reading of the opinions in' such- cases points up the importance of avoiding improper rulings and jury instructions which tend to prevent the jury from arriving at the true market value of the property being condemned on the date of its legal taking.

As we have heretofore stated, the date of taking in this case was July 9, 1963. On the present record this case might come within the doctrine of the Shakelford decision. Under the facts developed herein and the cases heretofore cited, the jury could not properly be instructed to disregard enhancement, if any, in value up to the date of taking on account of “highway construction” generally. However, since an entire taking was here involved, the jury could properly be instructed that in fixing the market value of said property as of the date of taking, it could not consider the condemnor’s purpose or the results thereof or the erection and establishment of any improvements by the condemnor, strictly limited to the very tract which is then the subject mátter of the condemnation proceedings.

Upon a new trial of this case the guide posts furnished by the cases herein cited should be followed on the matters of admission and exclusion of evidence and instructions to the jury.

Because of the errors shown by appellants’ points one through four, the judgment of the trial court 'is’-reversed and the cause is remanded for new trial.

NYE, Justice

(concurring).

Title to the land was held jointly by Marion Uehlinger and the minor children, Julia Maurine and Eleanor Elaine Uehlin-ger. Upon motion by the condemnor, while the condemnation matter was still in an administrative stage, the County Judge determined that there was a conflict of interest existing between the said minors and their guardian, whereupon, the court appointed a guardian ad litem to represent the minors during the Commissioners’ hearing. The condemnor objected to the decision and award of the Commissioners and timely filed its objections requesting that the case be tried in County Court arid that the defendants be cited as required by law. No citation was issued or served on any of the defendants after the cause had been appealed; however, the defendant, Marion Uehlinger, individually and as guardian of the minors, voluntarily appeared in County Court. The minors were not present in court; they were not represented by a guardian ad litem; nor had service by citation been served upon them or their personal representative. The record does not elaborate on the conflict of interest between the guardian and the minors. The record does not show whether such conflict was over the amount due each owner, or the extent or nature of such conflict. There being, however, a predetermined conflict of interest between the minors and their guardian, the guardian could not then waive the issuance of citation for such minors, or make a voluntary appearance in their behalf. Until the Court acquired jurisdiction over the person of the minors, a guardian ad litem could not be appointed to represent them. Ginn v. Southwest Bitulithic Co., (Tex.Civ.App.1940), 149 S.W.2d 201, wr. dism., judg. corr.; Wright v. Jones, Tex.Comm.App., 52 S.W.2d 247, opinion approved by Sup.Ct. (1932); 43 C.J.S. Infants § 110 b, p. 288; 27 Tex.Jur.2d 591, § 319, Guardian and Ward.

Each party to the condemnation may insist and therefore be entitled to be compensated for his interest separately. At another trial, it should be determined (after jurisdiction has been invoked by citation and a guardian ad litem appointed to represent the minors) whether such minors should have the .value of their interest apportioned among them separately. White v. City of Waco, 171 S.W.2d 514, wr.ref. (Tex.Civ.App.1943.); City of Paris v. Tucker, 101 Tex. 99, 104 S.W. 1046 (1907) ; City of Houston v. Huber, 311 S.W.2d 488 (Tex.Civ.App.1958).

Appellee argues in the alternative that if this Court should hold that the lack of service on the minors is fundamental error, the judgment should be set aside only as to them and not to Mrs. Uehlinger. The lower court did not obtain jurisdiction over the minor defendants. There is no way to determine from the record the extent of the conflict of interest between the several defendants, or upon what basis the judgment would be severable. Therefore, because the minors (when properly before the Court) may desire that their award be determined separately, justice would be best subserved by reversing and remanding the entire case.

Appellant having failed to properly perfect his error on Points 6 through 9, and because such errors complained of will not likely arise in the same manner upon another trial, I do not deem it necessary to discuss the other assignments.

      . See Gillam v. State, 95 S.W.2d 1019 (Tex.Giv.App.1936, n.w.h.).

      . Wright v. Jones, 52 S.W.2d 747, 251 (Tex.Com.App.1932).

      . Sandoval v. Rosser, 86 Tex. 682, 26 S.W. 933 (1894); Shiner v. Shiner, 40 S.W. 439 (Tex.Civ.App.1897, wr.ref.); 27 Tex. Jur.2d, Guardian and Ward, § 319, p. 591.

      . In Dial v. Martin, 37 S.W.2d 166, 175, 176 (Tex.Civ.App., 1931), reversed on other grounds, 57 S.W.2d 75 (Tex.Com.App.1933), the court said: “While the general rule is that a guardian is authorized to represent the ward in litigation, and that a judgment entered for or against the ward in an action where the guardian as such is a party is valid, the rule does not apply where the guardian has an interest which is adverse to that of the ward.” See also In re Dudley’s Estate, 88 S.W.2d 616 (Tex.Civ.App., 1935, wr.dism.); Stillwell v. Standard Savings & Loan Ass’n, 30 S.W.2d 690 (Tex.Civ.App., 1930, wr.dism.); 27 Tex.Jur.2d, Guardian & Ward, § 319, p. 591.

      . Rule 272, Texas Rules of Civil Procedure; Grabes v. Reinhard Bohle Machine Tools, Inc., 381 S.W.2d 395 (Tex.Civ.App., 1964, wr.ref., n.r.e.).

      . Rule 272, T.R.C.P.; McDonald Texas Civil Practice, Sec. 12.03 pp. 1052-1055.

      . Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345 (1948); State v. Haire, 334 S.W.2d 488 (Tex.Civ.App. 1960, wr.ref., n.r.e.); Nelson v. State, 342 S.W.2d 644 (Tex.Civ.App.1961, n. w.h.).

      . Housing Authority of the City of Dallas v. Hubbard, 274 S.W.2d 165 (Tex.Civ.App.1954, n.w.h.).

      . City of El Paso v. Coffin, 88 S.W. 502 (Tex.Civ.App.1905, wr.dism.).

      . City of Dallas v. Shakelford, 145 Tex. 528, 199 S.W.2d 503 (1947); Housing Authority of the City of Dallas v. Hubbard, 274 S.W.2d 165 (Tex.Civ.App.1954, n.w.h.).

      . City of Dallas v. Shakelford, 145 Tex. 528, 199 S.W.2d 503 (1947); City of Dallas v. Rash, 375 S.W.2d 502 (Tex.Civ.App.1964, wr.ref., n.r.e.); State v. Willey, 351 S.W.2d 900, 907 (2 cases, Tex.Civ.App.1961, no writ history in either case).

      . Such refused instruction reads as follows: “Since the property under consideration is a part of the original designated market site, you are instructed that in answer to special issue No. 1, you shall not take into consideration any increase in market value, if any, which may have accrued to defendants’ land due to' the location of the public market on such designated site.”

      . In Shakelford, the court said: “This conclusion, in our opinion, is supported by the following Texas cases: City of El Paso v. Coffin, supra, 40 Tex.Civ.App. 54, 88 S.W. 502; Gulf, C. & S. F. Ry. Co. v. Brugger, 24 Tex.Civ.App. 367, 59 S.W. 556; McChristy v. Hall County, Tex.Civ.App., 140 S.W.2d 576; and San Antonio etc. Ry. v. Ruby, supra, 80 Tex. 172,15 S.W. 1040.”

      . In State v. Cartwright, 351 S.W.2d 905 (Tex.Civ.App., 1961, wr.ref., n.r.e.) it was held that the following instruction should have been given to the jury: “ ‘Since the strip of land under condemnation is within the right-of-way for a highway which the State of Texas is acquiring, you are instructed that in arriving at your answer to Special Issues numbers one and two you shall not take into consideration any increase in value, if any, which may have accrued, to defendant’s land due to location of the highway on such site.’ ”

      . State v. Parrish, 159 Tex. 306, 320 S. W.2d 330 (1958); State v. Vaughan, 319 S.W.2d 349 (Tex.Civ.App.1958, n.w.h.); Taylor v. City of Austin, 291 S.W.2d 399 (Tex.Civ.App.1956, wr.ref., n.r.e.); Housing Authority of City of Dallas v. Shambry, 252 S.W.2d 963 (Tex.Civ.App.1952, wr.ref., n.r.e., 152 Tex. 122, 255 S.W.2d 184, 1953).