author: CALVERT, Chief Justice. GREENHILL, Justice

text:
    ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Petitioner, v. Mrs. J. A. GREGORY et al., Respondents.
    No. A-10203.
    Supreme Court of Texas.
    Jan. 27, 1965.
    Rehearing Denied March 10, 1965.

      Joe N. Chapman, Sulphur Springs, O. O. Touchstone and John B. Webster, Dallas,, for petitioner.
    Jones, Brian, Jones & Baldwin, Marshall, Howard S. .Smith, Sulphur Springs, for respondents.

      . All references to Rules are to Texas Rules of Civil Procedure.

   CALVERT, Chief Justice.

This suit grew out of a train-automobile collision at a railroad crossing. Damages were sought for the deaths of Thomas Ray (Butch) Gregory, J. A. Gregory and Douglas McCord, and for injuries to Mark Gregory, all occupants of the automobile. Trial was to a jury, and a take-nothing judgment was rendered on the jury’s verdict. ' The Court of Civil Appeals reversed the trial court’s judgment and remanded the cause to that court for a new trial. 377 S.W.2d 847. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court

Sixty-one special issues covering primary negligence of the defendant and its employees, contributory negligence of Thomas Ray Gregory, operator of the automobile, discovered peril, unavoidable accident and damages were submitted to the jury. We need not summarize all of the issues and the answers of the jury thereto. It is sufficient for opinion purposes to state that the jury did not find the defendant Railway Company or its employees guilty of any act of negligence which was a proximate cause of the collision; found that the occupants of the automobile were in a position of peril just before the collision, but that the operatives of the train did not discover the perilous position of such occupants in time to avoid the collision; found that the collision was not the result of an unavoidable accident; found that the air horn and bell on the locomotive were sounded prior to the collision; found that Thomas Ray Gregory was negligent in failing to heed the horn and bell, and that such negligence were proximate causes of the collision. From the findings thus summarized, it is obvious that the plaintiffs’ rights to recover damages were barred by the failure of the jury to find the defendant or its employees guilty of any acts of negligence proximately causing the collision as well as by its findings that the negligent omissions of the operator of the automobile were proximate causes of the collision.

Plaintiffs’ points of error in the Court of Civil Appeals presented five reasons why that Court should reverse the judgment of the trial court and remand the cause for a new trial. The reasons may be summarized as follows: (1) The juror Bradford was disqualified to serve as a juror in the case because of bias and because he possessed prior information on a vital issue in the case which he concealed on voir dire examination, and plaintiffs were therefore denied a fair jury trial. (2) Misconduct on the part of the juror Bradford. (3) Misconduct on the part of counsel for defendant (4) The cumulative effect of misconduct of juror Bradford and misconduct of counsel. (5) The verdict of the jury was contrary to the overwhelming weight and preponderance of the evidence.

The Court of Civil Appeals rejected reason (5) by its holding that the verdict was not contrary to the overwhelming weight and preponderance of the evidence. This Court has no jurisdiction to review that holding. Art. V, Sec. 6, Constitution of Texas, Vernon’s Ann.St.; Electric Express & Baggage Co. v. Ablon, 110 Tex. 235, 218 S.W. 1030, 1034. The Court held that reason (3) did not require reversal of the trial court’s judgment, but that reasons (2) and (4) did; and, having so held, the Court found it unnecessary to decide whether reason (1) required reversal. Before it may be said that the Court of Civil Appeals erred in reversing the judgment of the trial court and remanding the cause for a new trial, it must appear that none of the first four reasons presents a sound basis for that action. They will be considered in the order in which they have been listed.

DISQUALIFICATION OF THE JUROR BRADFORD

The parties disagree as to whether the question of juror Bradford’s disqualification was properly • preserved for appellate court decision. The record discloses, clearly we think, that the question was not preserved.

Plaintiffs were required by Rule 324 to file a motion for new trial as a prerequisite to their right of appeal. Under the provisions of Rule 320 they were required to “specify each ground” on which, their motion was founded, under penalty that “no ground not specified shall be considered.” Moreover, Rule 374 provides: “A ground of error not distinctly set forth in the motion for new trial, in cases where a. motion for new trial is required shall be considered as waived.” The matter of juror Bradford’s disqualification was not included in any assignment of error in plaintiffs’ motion for new trial or in their amended motion for new trial, and was not, therefore, preserved for appellate court review. Parenthetically, it should be observed that the record reflects that Bradford did not conceal the fact on voir dire examination that he had prior information concerning the collision, as will now be shown.

The record reflects thát shortly after the collision, which occurred on December 21, 1961, one Raymond Vaughn, operator of a country store, stated to Bradford that Thomas Ray Gregory had been having trouble with the carburetor on his car on the day before the collision. This suit was filed on March 16, 1962, and went to trial on December 3, 1962.

Voir dire examination of Bradford by defense counsel developed that he had heard about the accident on radio and had read about it in the newspaper. The examination continued with the following questions and answers

“Q Now, did you ever discuss it with anybody ?
“A Yes, sir, sure did.
“Q. Whom did you discuss it with?
“A Well, with .my wife and the son Marvin [Gregory] lived about two and a half miles from where I live, and we trade at the same store, but we wasn’t social, we didn’t know each other actually before his brother was killed, but we trade at the same store and therefore I discussed it with the store owner there at the time it happened.
“Q You ever discussed it with Marvin? '
. “A. No, sure didn’t.
“Q But you are both customers of the same store and you talked at the store about it. Did you talk to anybody ' else?
“A That is the only one'I can think of. .....
“Q Now, from hearing it on the radio, reading about it in the newspaper, talking with the store owner, did you form any opinion?
“A No, sir.
“Q With reference to the merits of the matter ?
“A No, sir, no evidence either way as far as I know.
“Q You formed no opinion?
“A No, sir.”

It is to be noted that although Bradford plainly revealed, and did not conceal, the fact that he had discussed the accident with his wife and with the owner of the store where both he and Marvin Gregory traded, counsel for neither party saw fit to inquire into or to develop the substance of the discussion.. Opportunity 'to make the inquiry out of the presence .of the other prospective jurors was afforded, and thus could have been done without prejudice. The trial court found .as.a. fact that Bradford “truthfully answered all. questions propounded to him on voir dire examination”; and the record furnishes no reason for saying that Bradford would have failed or have refused to give honest answers to any other questions which might háve been propounded. Having failed to probe into Bradford’s conversation with Vaughn, plaintiffs are not in position to complain of the failure of Bradford to reveal the substance of the conversation. See City of San Antonio v. Willinger, Tex.Civ.App., 345 S.W.2d 577, no writ history.

MISCONDUCT OF THE JUROR BRADFORD ' ■

The juror - Bradford was undoubtedly guilty of misconduct and the trial court so found. The important question here, however, is whether Rule 327, governing the granting of new trials, required the .trial-court to grant a new trial-.because of-the, misconduct. The Court of Civil Appeals has held that it did, and 'this. was the principal reason for the action of that Court in reversing the judgment of the trial court.

The record discloses two acts of misconduct by the juror Bradford. The first occurred during the course of the trial and after adjournment of the court for the day. Juror Anderson was riding to his home as a passenger in Bradford’s automobile. During the course of the trip, Bradford, according to the trial court’s finding, “made a statement to juror Anderson to the effect that he, the said Bradford, had heard that Butch Gregory had been having trouble with the carburetor on his automobile the day before the collision occurred.” The second act of misconduct occurred on the following day when Bradford drove his automobile to Raymond Vaughn’s store on a business mission. While there Bradford asked Vaughn “in effect, whether or not the said Vaughn shortly after the collision had occurred, had stated that on the day preceding the collision Butch Gregory had been having trouble with the carburetor on his automobile,” and he also told Vaughn that he, Bradford, “had been looking for Vaughn up at the courthouse as a witness because Vaughn had told Bradford that Butch Gregory’s car died or his carburetor was out of shape the day before the accident.” According to the trial court’s finding and the testimony of both Bradford and Vaughn, Vaughn made no reply to Bradford ; he “merely ‘laughed it off.’ ”

Bradford’s conduct was in violation of instructions given to the jurors by the court during the course of the trial that they should not "discuss the facts, or purported facts of the case, either among themselves, nor allow anyone to discuss same with them”; that they should “not undertake any investigation or personal observations of any kind”; and “not to go out and seek information or look for evidence.” Undoubtedly the trial court could have punished Bradford for contempt for violating its orders had it chosen to do so. But that does not mean that the plaintiffs were entitled to a new trial.

Under the provisions of Rule 327, a party seeking a new trial because of misconduct of a juror has the burden of establishing to the satisfaction of the court that it “reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted” to him. There are some types of misconduct, such as jury tampering, in which the burden of proving probable injury is discharged, prima facie, by mere proof of the overt act itself. See Texas Employers’ Insurance Ass’n v. McCaslin, 159 Tex. 273, 317 S.W.2d 916. We do not regard this as such a case. As said by the Court of Civil Appeals in Aetna Casualty and Surety Co. v. Perez, 360 S.W.2d 157, 160, in commenting on the McCaslin rule, “This is the rule, and a good one, but its extension into new areas flirts with the re-adoption of the discarded rule of presumed harm in misconduct cases.” Having concluded that mere proof of the acts of misconduct on the part of the juror Bradford does not establish that the trial was materially unfair to the plaintiffs, we examine the record to determine whether it discloses proof of probable injury to the plaintiffs.

The second act of misconduct can be disposed of summarily. According to the testimony of both Bradford and Vaughn, and according to the trial court’s finding, Bradford received no reply from Vaughn when he was asked if he had not said that Butch Gregory had been having trouble with the carburetor on his car the day before the collision, or when Bradford stated that he had been looking for Vaughn as a witness at the trial. The testimony of both Bradford and Vaughn, and the finding of the trial court, is that Vaughn just “laughed it off.” To say that this act of misconduct, however much subject to censure, probably resulted in injury to the plaintiffs would require the indulgence of a presumption, contrary to the testimony and to the trial court’s finding, that Vaughn actually answered Bradford’s question, and the indulgence of a further presumption that Vaughn confirmed Gregory’s carburetor trouble as a fact. Rule 327 does not permit our courts to pile one presumption on top of another and thus to reach a conclusion of probable injury.

The first act of misconduct presents a somewhat more serious question. It was not misconduct for Bradford to be in possession of the information which Vaughn had given him following the collision. It was misconduct for Bradford to pass that information on to the juror Anderson; but the nature of the misconduct was not such, standing alone, as to establish probable injury to the plaintiffs.

With respect to Bradford’s statement to Anderson as to what he had been told by Vaughn, the trial court made the following finding:

“Except for this one statement made by juror Bradford to juror Anderson, neither the said juror Bradford nor juror Anderson mentioned or discussed the matter of carburetor trouble with any other member of the jury, at any place or time, until after the jury’s ver-diet was returned and accepted.”

All twelve jurors testified on the motion for new trial, and the trial court’s finding is not controverted by the testimony of a single juror. However, it is a sound rule which requires that a new trial be granted if the verdict of even one juror is af-tected by misconduct. See Texas & P. Ry. Co. v. Gillette, 125 Tex. 563, 83 S.W.2d 307, 309. The question, then, is whether it reasonably appears from the record before ns that juror Anderson’s answers to the special issues probably were affected by the information communicated to him by Bradford. In deciding this question we must keep in mind that we are not permitted by Rule 327 to presume that they were.

On the issue as here stated, the record •discloses only the following: That when Bradford told Anderson of Vaughn’s statement, Anderson made no comment; that the matter was not pursued by Bradford, and Anderson did not mention it to anyone until after the verdict was returned and accepted by the court; that Bradford did not purport to state as a fact that Gregory had carburetor trouble, but repeated only what Vaughn had said to him; that as the information reached Anderson it was clearly hearsay; that Anderson was charged by the court, as were all jurors, to answer the special issues from “the greater weight and degree of credible testimony,” and by necessary implication was thereby charged not to answer them from hearsay statements heard out of court; that some of the jurors, but not Anderson, expressed the opinion during the jury’s deliberations that Gregory was more at fault than were the train operatives; that the foreman polled each juror separately on each issue before the answer was written; that when the jury was dismissed, jurors Anderson, Bonham, Eddins and Boozer went for a cup of coffee and, according to Bonham, Anderson said to the others that “he knew we were going to have trouble with Newman [Bradford] when he came to the jury room because he had talked at a country store about the case with some other people.”

There is nothing in the foregoing resume of relevant parts of the record to lead reasonably to a conclusion that Anderson’s answers to the various special issues were affected by the information imparted to him by Bradford. If it indicates anything, it indicates that Anderson’s votes were unaffected. Particularly impressive on the issue is the fact that ten jurors who never heard of Vaughn’s statement voted to give the same answers Anderson gave to the issues, and both the trial court and the Court of Civil Appeals have held that the answers are not against the great weight and preponderance of the evidence.

But it is argued that the jury’s answers to some of the issues cannot reasonably be explained except upon the theory that the jury believed that a bad carburetor was the cause of Gregory’s car stopping on the railway track just before it was hit by the train. A jury’s answers to special issues are often difficult to explain. Sometimes answers are so conflicting as to amount to no verdict at all, thus requiring a mistrial. It may be admitted that the answers to some of the issues in this case are not as logical as we might have given had we served on the jury, but that fact does not authorize us to presume, contrary to all of the testimony and to the trial court’s finding, that the jurors Bradford or Anderson, or both, communicated Vaughn’s prior statement to the other jurors and thus induced a unanimous verdict absolving the railroad of all fault in the collision.

MISCONDUCT OF COUNSEL

During voir dire examination of Mrs. Harold Arnold by counsel for the defendant, the following occurred:

“Q. You have never served on a jury?
“A. Yes, I have, an insurance case.
“Q. There is no insurance here.
“A. And I have also served on a theft case * *

The questioning stopped at this point, and following a discussion between the judge and counsel for both parties, the judge gave the following instruction to the panel:

“Ladies and gentlemen of the panel, let me have your attention, please. Mr. Touchstone, attorney for the defendant, mentioned in your presence there is no insurance in this case. You are instructed to disregard such statement and you will give it no effect whatever.”

Plaintiffs contend that defense counsel’s statement, “There is no insurance here,” told the panel, in effect, that the defendant railroad did not have liability insurance coverage, and that the statement was so highly prejudicial to the plaintiffs’ case that the harm was incurable by instruction.

It may be admitted that the statement, whether in the nature of a spontaneous reaction to the prospective juror’s answer, as defendant states, or otherwise, should not have been made, and was error. It does not follow, however, that the error “was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case” as is re-? quired by Rules 434 and 503 before a reversal of the trial court’s judgment may be ordered. Even if the statement was interpreted by the prospective jurors to mean that the defendant did not have liability insurance coverage, rather than that the deceased persons did not have life or accident insurance, it is hardly probable that the jury, for that reason, would render a verdict favorable to the railway and against the plaintiffs. And if the statement was calculated, in some slight degree, to cause the jury to render a verdict which it would not otherwise have reached, the court’s instruction was adequate to eliminate its harmful effect. Not every mention of insurance requires the setting aside of a jury’s verdict. See Dennis v. Hulse, Tex.Sup., 362 S.W.2d 308.

CUMULATIVE EFFECT OF MISCONDUCT OF THE JUROR BRADFORD AND MISCONDUCT OF COUNSEL

There is no need to repeat what has been said with respect to the misconduct of the juror Bradford and the misconduct of counsel. It is enough to say that it does not reasonably appear from the record before us that injury probably resulted to the plaintiffs from the cumulative effect of the two incidents. The series of acts of jury misconduct in Rodman Supply Co. v. Jones, Tex.Civ.App., 370 S.W.2d 951, no writ history, cited by the Court of Civil Appeals in support of its holding in this case, were calculated to be far more prejudicial than the two acts of misconduct discussed herein.

The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.

GREENHILL, Justice

(dissenting).

This suit arose out of the death of metm hers of the Gregory family when their car stopped or stalled on the railroad tracks and was struck hy one of the railway’s engines. Upon a trial to the jury, judgment was for the defendant railway. That judgment was reversed by the Court of Civil Appeals at Texarkana because of jury misconduct. 377 S.W.2d 847. I would affirm the action of the Court of Civil Appeals.

The controlling question is whether the jury misconduct, which admittedly occurred, was material and probably resulted in injury to the plaintiffs’ case. Rule 327, Texas Rules of Civil Procedure. The trial court found that the misconduct occurred but held that it was harmless and probably did not result in injury to the plaintiffs’ case. Whether the misconduct occurred is a question of fact, and that issue has been determined. Whether it probably resulted in injury is a question of law. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943); Pope, Jury Misconduct and Harm, 12 Baylor Law Review 355, 356 (1960).

On the question of the materiality of the jury misconduct and of probable harm, I am impressed with the following facts and circumstances: members of the train crew testified that the Gregory car stopped dead astride the rails; that the driver had plenty of time to get the car off the track if his car had been in good condition. The fireman could not explain why it did not move on. The jury found that neither the train operators nor Butch Gregory, the driver of the car, failed to keep a proper lookout. It found the train operators guilty of certain acts of negligence (failure to sound its horn or ring its bell at least 80 rods from the crossing), but found that these acts were not a proximate cause. It found that the horn and bell were operating [immediately] prior to the collision, and that it was negligence for Butch Gregory not to heed them, and that this was a. proximate cause. Then it found that. Butch Gregory neither stopped the car, nor permitted it to stall, on the tracks; and that he did not fail to keep the car under proper control. It found that Butch Gregory failed to yield the right-of-way to the railroad, but this was not a proximate cause.. It further found that though the train was in dangerous proximity to the Gregory car as it approached the tracks, this was not a proximate cause; and that Butch Gregory’s failure to stop within 15 feet of the track was not a proximate cause. It found that Butch Gregory failed to drive forward off the tracks, but that this was not negligence.

Why, then, did Butch Gregory not move off the tracks ? If the negligent acts of the train crew were not the proximate cause of the accident, what was? The juror Bradford testified on motion for new trial that he remembered that a grocer, Vaughn, had told him that Butch had been having carburetor trouble with that car on the day before the accident. The same juror, one evening during the course of the trial, drove the juror Anderson home from the courthouse. Bradford told Anderson about the conversation he had had with Vaughn, about the Gregory car having the defective carburetor the day before the Gregory car failed to move off the track. Bradford said he remarked to Anderson that he “wondered why they [the railroad] hadn’t brought it out.” Anderson asked what carburetor Bradford was talking about, and Bradford explained that he was talking about the carburetor on Butch Gregory’s car. This unquestionably was jury misconduct. The juror Anderson confirmed that this conversation took place. He did not comment to Bradford on the matter.

On the following day, while the case was still being tried, Bradford went back to the grocer Vaughn at his store, and told him he had been expecting him, Vaughn, to be a witness at the trial. Bradford said, “I had been looking for him up here since he had told me about the carburetor.” Bradford said he asked Vaughn, “Didn’t you tell me immediately after this wreck that this boy was having trouble there?” Vaughn did not reply to the question; “he laughed it off.” This action by Bradford was also, beyond question, jury misconduct.

There was no testimony upon the trial that the Gregorys had been having carburetor trouble before the accident. The railroad had unsuccessfully attempted to establish that fact. Bradford deliberately made a trip to Vaughn’s grocery store to attempt to confirm Vaughn’s statement to him that Butch Gregory had been having car trouble. Bradford apparently remained convinced that Vaughn had told him that, even though when confronted with the question, Vaughn “laughed it off,” whatever that may mean. Mrs. Gregory testified that some six months before the accident, there had been carburetor trouble; but Mr. Gregory had had a new motor put in the car, and there had been no further difficulty. The information which Bradford furnished the juror Anderson was calculated to impeach the credibility of Mrs. Gregory’s testimony. Even though there was evidence that neither Bradford nor Anderson had discussed this matter with any other juror, the testimony which juror Bradford gave the juror Anderson furnishes a logical explanation for the jury’s findings: that Gregory did not stop his car or [intentionally] permit it to stop, on the tracks; that he and the train crew were both keeping a proper lookout; and the train crew’s negligence was. not the proximate cause of the collision. The explanation would be that the car stalled because of the carburetor. Hence Gregory’s failure to move was not negligent conduct. He could not move.

I am unable to say, under these circumstances, that'the misconduct was harmless and did not result in probable harm. “The burden of the complaining party is met by showing that the trial which resulted in a judgment against him was materially unfair.” Texas Employers’ Insurance Association v. McCaslin, 159 Tex. 273, 317 S.W.2d 916 (1958). I would hold that the misconduct was material and probably resulted in harm.


source: Caselaw Access Project

author: GREENHILL, Justice.

license: Public Domain

text:
    W. L. PICKENS et al., Appellants, v. RAILROAD COMMISSION of Texas et al., Appellees.
    No. A-10116.
    Supreme Court of Texas.
    Feb. 10, 1965.
    Rehearing Denied March 10, 1965.

      Prentice Wilson, Roach & Robertson, Dallas, Fred Erisman, Longview, J. W. Hassell, Jr., Dallas, for appellants.
    Waggoner Carr, Austin, Atty. Gen., Lin-ward Shivers, Joseph Trimble, Asst. Attys. Gen., Powell, Rauhut, McGinnis, Reaveley & Lochridge, B. D. St. Clair, Austin, Robert B. Payne, Dallas, R. J. Stanton and H. D. Bushnell, Tulsa, Okl., Robert F. Le-Blanc, Gentry Lee, C. C. Cammack, Bartles-ville, Okl., Alfred O. Holl, William P. Gibson and Wallace G. Malone, Dallas, for ap-pellees.
   GREENHILL, Justice.

The main question here is the validity of the order of the Texas Railroad Commission prorating the production allowable of oil from the Fairway (James Lime) Field in Anderson and Henderson Counties, Texas. The order fixed the rate at which the various owners of the oil could produce. The district court found the order tp be reasonably supported by substantial evidence and upheld it. W. L. Pickens and others have brought the case to us by direct appeal. The main law question before us is the same as that before the district court : Is the Commission’s proration order reasonably supported by substantial evidence?

The formula under attack has two basic elements: (1) the number of surface acres in the production unit on which there is a well, usually 160 acres;- and (2) the number of acre-feet of productive sand or rock which are within, or below, the 160 surface acres. The acre-foot is a measure of volume. Some surface acres of the field have, vertically, a thicker section of productive sand below them. An acre-foot, as used here, refers to a horizontal square acre with a thickness of one foct of productive sand. An acre-foot contains 43,560 cubic feet of oil or gas-bearing formation.

In addition to pleading that the order was unreasonable because it did not protect their correlative rights and would permit uncompensated drainage, Pickens et al. pleaded that any formula which was not “based solely’ on net acre-feet of pay underlying each unit tract” would be unreasonable, would fail to protect their correlative rights, and would deprive them of their property without due process of law. Their witness’s testimony was that the formula should have been based 100 percent on acre-feet of productive sand.

The proration order was arrived at in the following manner: the Commission each month determines the amount of oil to be produced from all fields in Texas. It divides this amount among the various fields. The total amount this particular field may produce is determined from time to time and is not fixed in the proration allowable formula here attacked. What the proration order does is to allocate to the wells in the field the part of the total field allowable which each well may produce. There are some exceptions because some wells have but limited capacity, others have a high gas-oil ratio, and so forth. Those wells are given particular allowables and are not here involved. The remaining volume of oil, whatever it is, is divided in half: one-half of the oil is allocated to the wells in that proportion which their assigned surface acreage in the oil field (usually 160 acres) bears to the total acreage in the field (about 21,000 acres) ; and the other half is distributed among the same wells in that proportion which their assigned acre-feet, their net acre-feet, bears to the total acre-feet in the field. Thus it is said that the formula allows 50 percent for acreage (up to 160 surface acres), and 50 percent for acre-feet.

The Fairway (James Lime) Field was discovered in 1960. It is located in a single structure, a common reservoir, some 9,500 feet below the surface. Early in 1961, the Commission issued an order prorating the field’s production on the basis of a formula which was weighted to allow 50 percent for the producing well itself. This is called a “per well” factor. The other 50 percent was credited to surface acreage in the producing unit up to 160 acres. So the first formula was 50 percent per well and 50 percent for surface acreage.

On March 8, 1961, and February 14, 1962, this Court handed down its opinions in the Normanna and Port Acres cases. Those opinions invalidated particular gas proration orders in those fields which contained a substantial [one-third] “per well” factor. Thereafter on May 23, 1962, the Commission withdrew its Fairway Field proration formula which contained the 50 percent “per well” factor and promulgated a proration schedule based 100 percent on surface acreage in each producing unit.

The spacing pattern was, and is, basically 160 acres to the well. No small tracts are here involved. Under that formula, the allowable oil production for each well was determined entirely by the number of surface acres, up to 160, which were situated over productive sand or rock. Pickens protested this formula but did not appeal.

In November and December of 1962, the Commission held a new hearing. On March 6, 1963, it promulgated the order here in question. The Commission retained 160 acres as the spacing unit for wells (about which there is no controversy) ; and, as stated, it announced that the proration of the allowable production of oil among the wells would be based on a fraction made up of two factors: (1) 50 percent for the number of surface acres over the productive strata, and (2) 50 percent for the number of acre-feet in the production unit. This “50 percent acreage, 50 percent acre-feet” formula will be hereafter referred to as the “50-50 formula.” It must be borne in mind that it differs very substantially from another 50-50 formula previously used which allocated 50 percent to the well alone and 50 percent to surface acres.

The total allowable for the field is approximately 40,000 barrels per day. At the time of issuance of the order, there were 135 wells in the field, three of which were operated by Appellant Pickens. On the basis of surface acres in the field, each well on a 160-acre tract would be allowed to produce approximately 302 barrels per day. The witness Latimer testified that when the field was prorated on a 100 percent acreage basis, Appellant Pickens’ three wells on 480 of the field’s 21,000 acres had an allowable of 333 barrels per day each. The effect of the 50-50 formula was to raise his allowable to between 362 and 378 barrels per well per day. The allowables on other wells having fewer acre-feet were lowered. For example, the Sun Oil Company’s Lloyd #1 Well had an allowable of 233 barrels per day under the 50-50 formula.

Pickens and others filed suit in Travis County on April 8, 1963, to attack this order of March 6, 1963. They contend, among other things, that it was unreasonable and was not supported by substantial evidence, mainly, in that it discriminates against people who have the most oil in place under their surface acres, i. e., the most acre-feet; and it allows, they say, an undue advantage to those having the same surface acreage over the oil but fewer acre feet of oil in place. They also contend that it will bring about undue uncompensated draining which will ultimately result in their great financial loss. Pickens et al. seek to bring this case within the decisions of the Normanna and Port Acres cases, supra, as well as the decision in Railroad Commission v. Shell Oil Co., 380 S.W.2d 556 (Tex.1964), which passed upon the pro-ration order in the Quitman Field.

The Commission’s' order is presumed to be valid. The question is not whether the Commission came to a proper factual conclusion on the basis of conflicting evidence, but whether it acted arbitrarily and without regard to the facts. Railroad Commission v. Manziel, 361 S.W.2d 560 (Tex.1962). Our duty is to look to the record as a whole to see whether the order of tlie Commission is reasonably supported by substantial evidence. While we look to the record as a whole, our duty is to determine whether there is in the record competent evidence which reasonably supports the order. The evidence is voluminous; of necessity it must be greatly condensed.

The oil-bearing strata in question is several miles across, and is elevated about 130 feet toward its center. The thickest of the oil-saturated sand or rock (some 115 feet vertically) is in the central part of the strata or field. It is not located over subsurface water. If the field could be sliced and looked at vertically, the oil-bearing portion or strata could roughly be compared to an elongated, very gradually sloping crescent, the entire center of which is elevated toward the surface. It may be described as a symmetric recumbent anticline. The “thick” area of the field, which has the most acre-feet of oil-bearing rock, is updip (at a higher elevation in the structure) from the thinner sections which are toward the ends of the crescent. The thinnest producing rock or sand is some IS feet thick. The average thickness is about 77 feet. The argument of Pickens is that since there is an average of 77 acre-feet of producing sand below each average surface acre, the 50-50 formula is weighted overwhelmingly in favor of surface acres as contrasted to acre-feet of producing sand. There is not, they say, one acre-foot for each surface acre (which they say would make a 50-50 allocation more equitable), but an average of 77 acre-feet for each surface acre. Hence the areas of thickest sands are not being allowed to produce in proportion to the reserves in place.

Pickens and others relied upon the testimony of H. J. Gruy, a consulting petroleum engineer and geologist. He projected the 77-to-l figures mentioned above to show that Pickens et al. will ultimately recover amounts substantially less under the 50-50 formula than they would if the formula used were based 100 percent on the number of acre-feet under each tract. His testimony was that oil wells would drain in excess of 160 surface acres, and that Pickens et al. would be the victims of net uncompensated drainage.

Gruy disputed the assertion that there was any water drive or water encroachment in the field. He testified that any water in the wells toward the edge of the field was due to poor cementing of the wells. He conceded that there was water in some •of the wells, and that there was water in ■contact with the oil on the edge of the field. He had not studied the aquifer (water-bearing sand) surrounding the field and underlying a large part of it, but he stood on the proposition of no water encroachment. He conceded that the oil reservoir was not made' up of homogeneous rock or sand. He advocated a 100 percent acre-foot formula, “although we don’t know enough about these acre feet to differentiate and say, 'Mr. X has got twice as good acre feet as Mr. Y.’ ” Gruy was the only witness for Appellants Pickens et al.

The Appellees called five expert witnesses, who were petroleum or production engineers, a petroleum reserve engineer, and a petroleum consultant. These experts agreed that the field was virtually surrounded by water which was in contact with the oil in the field, and that a substantial portion of the field was located over water which was also in contact with the oil. Their testimony was that there was a marked difference in the bottom-hole pressures in the various wells in the field. The wells toward the center of the field and the thick section of the oil-bearing strata had a lower pressure than the wells toward the edge of the field, particularly to the southeast.

The discovery wells were in the southeast part of the field, and that portion of the field had produced almost a year longer than the center section. Yet the pressure in that southeast area has not declined as much, proportionately, as the pressure in the center or thicker section of the field where Appellants Pickens et al. (as well as many of the Appellees, including the Ap-pellee Hunt Oil Company) had their wells. The explanation was that as the oil was withdrawn from the field, water moved into the field around its edges to replace the oil, thus keeping up the pressure. There was evidence that edge wells were making water and that the amount of water in the wells was increasing.

The witness Thomas W. Clay testified that the aquifer which was under portions of the field and adjacent to the field, was very sizable; large enough for a water drive. He concluded that there was not a complete water drive but there would be a limited water drive; that the water would expand. In his opinion, the 50-50 formula gave each operator or owner a reasonable opportunity to recover the oil in place under his tract.

The witness J. R. Latimer, Jr., testified that the aquifer was about three times the size of the field, and its encroachment explained the maintenance of bottom-hole pressure in the wells located over the water. He said that 52 percent of the field was underlain by water. He pointed out one well which had been abandoned as a non-producer because of water. Another had increased in water production from 40 to 54 percent; another from zero to 54 percent water.

It was Latimer’s testimony that substantial quantities of water are in fact moving into the field, and its movement will continue. At first he did not believe that there was enough evidence to support the conclusion that there was a water drive. This belief continued into 1962. But he thereafter changed his mind. While the amount of water now being produced from oil wells is insignificant compared to the total volume of oil which has been produced, water is moving into the field and will continue to do so.

The water, he said, encroaching from the edges of the field, would push the oil updip toward the thicker sections of the strata where Appellant Pickens’ wells are located. The thinner sections would be watered out first. In his opinion, a 100 percent acre-foot proration formula would cause an acceleration of the influx of water, and the allowables from the watered-out wells on the thinner tracts would then be transferred to the wells on the thick tracts toward the center of the field.

The witness Latimer further testified to pressure differentials in the field. Oil, he said, will drain toward low pressure. It cannot drain against pressure. The area in the center of the field, around the wells of Pickens et al., has lower pressure than the pressure around the thin or edge tracts.

So his testimony was that net drainage was not away from the wells of Appellants Pickens et al. but toward them because of (1) the difference in pressure and (2) the force of the water pushing the oil updip. He concluded that the 50-50 formula more nearly gave all the owners an equal opportunity to produce their in-place reserves. He doubted that even under that formula the edge wells would come even close to producing what was considered to be originally in place because the oil is being pushed past them, updip.

The witness Harold Dixon agreed that the water is increasing in sufficient quantities to move the oil updip to the thicker tracts. He testified that water is presently moving into the field. In his opinion, for the wells on the thin sections to be able to produce the recoverable oil under them, they should have an opportunity to produce their oil before the water pushes the oil up-dip. The 50-50 formula, he said, affords that opportunity, and would result in allowing the thicker tracts (of Appellants Pickens et al.) to recover more, even far more, than their original in-place reserves.

The witness Fred Oliver agreed that because of the pressure differential, there would be drainage toward the wells of Pickens et al. He disputed the testimony of Pickens’ witness Gruy as to the disproportionate amount of ultimate recovery of oil in various portions of the field under the 50-50 formula. He testified that the thin tracts would not have an opportunity to produce their in-place oil under a 100 percent acre-foot formula and that the 50-50 formula gave each owner a reasonable opportunity to recover his in-place oil. He was unable to say that there was a water drive. On the other hand, he could not say that there was no water influx. The area of the aquifer was of sufficient size to affect the reservoir drive or mechanism. The indications are, he said, that there will be a. partial water drive in the field, and the water drive will be definitely significant to' the edge tracts. Some areas will lose in-place oil by reason of water influx. He would expect that a water drive would be readily apparent within four years. By that time, however, under a 100 percent acre-foot formula, the wells on the thin tracts would be abandoned or their capacity reduced.

Appellees’ most positive expert witness was Pat Kelly, a petroleum engineer. Because he was an employee of the Commission and had heard the evidence in this case as a 'Commission examiner, his testimony was objected to. The admissibility of his testimony is the subject of discussion later herein. He was permitted to testify as to what he knew as an expert and not as to what he had heard as an examiner.

Kelly testified that water was unquestionably moving into the field at this time. He did not know the extent (degree or speed) of the encroachment but “We * * know that it is encroaching. * * * It is known right now that there is water encroachment in the field.” The eminence of the water encroachment, he said, put the wells on the thinner tracts in jeopardy of abandonment before the recovery of the in-place oil beneath those tracts. “The watering out of wells that are in close proximity to water is further conclusive proof of a water drive.” A 100 percent acre-feet formula would, he said, aggravate the water encroachment. Under it, the thinner tracts would be severely drained. He further objected to the 100 percent acre-foot formula because the reservoir was not homogeneous. There are many variables and unknowns within it, such as structure, pressure, permeability and porosity; and the 50 percent acreage factor in the formula “balanced against the unknowns.” It was his opinion that the thinner tracts underlain by water should be permitted to produce at a higher relative rate because this would give them a greater chance to produce their in-place reserves.

While as stated there is a mass of evidence in this case, some of which is conflicting, and much of which would have supported the Commission if it had entered a different order, the foregoing constitutes substantial competent evidence to support this proration order of the Commission. There was an abundance of testimony that under the Commission’s formula, each operator would have the opportunity to recover his in-place oil reserves. This Court held in the Quitman Field case that in a Rule 37 case (involving a permit to drill a well on a small tract), the landowner is entitled to a fair chance to recover, the oil and gas in and under his land or its equivalent in kind to prevent confiscation of his property. But in determining the validity of a field-wide proration order, the landowner is not wholly restricted to a recovery of reserves underlying his land. The test in that case (which is this case) is whether he has an opportunity to produce his fair share of the minerals in the reservoir. Railroad Commission v. Shell Oil Co., 380 S.W.2d 556 at 560 (Tex.1964).

While the Appellants’ witness Gruy testified that Appellants would suffer uncompensated drainage under the Commission’s formula, there was an abundance of competent testimony that the net drainage was toward the Appellants’ portion of the field, not only because of water encroachment but because of the difference in pressure. Hence the facts of this case are distinguishable from the Normanna and Port Acres cases (supra, footnotes 1 and 2) where the evidence was undisputed that there would be enormous amounts of uncompensated drainage from the large tracts in question to the small town-lot wells. The evidence in those cases as well as in Railroad Commission v. Shell Oil Co., supra, footnote 3, was that the wells on the small tracts would depend for their production as much as 85 percent on oil or gas drained from under other tracts. There is competent testimony here that there would be little if any drainage toward the edge wells which did not have a thick section of oil-bearing sand or rock; i. e., those wells which did not have as many acre-feet as those wells in the center.

This Court has taken note before that oil moves to areas of low pressure and that drainage is from areas of high pressure to areas of low pressure. Railroad Commission v. Manziel, 361 S.W.2d 560 (Tex.1962). In that case as oil was produced, the bottom-hole pressure dropped from 2650 pounds per square inch to an average of 371 pounds p. s. i. Water was forced into the strata from the surface in order to produce the oil that would otherwise be lost. Here in the edge portions of the field, as oil was produced, the pressure did not substantially decline as it did in Manziel. This, and other things, led the petroleum engineers to conclude that the pressure in the wells was being sustained by the intrusion of water from the aquifer which was next to and below much of the field. This Court, in Man-ziel, noted that pressure was greatest in the Whelan Brothers-Vickie Lynn Unit, and hence, “It stands to reason that under these conditions, the drainage from the Whelan Brothers-Vickie Lynn Unit will continue.” 361 S.W.2d at 573. Similarly, we said in the Port Acres case, “That is to say that since the gas in a continuous reservoir will flow to á point of low pressure the landowner is not restricted to the particular gas that may underlie his property * * 357 SW.2d at 375.

Moreover, there is an acceptable reason for allowing the thinner tracts with fewer acre-feet to produce at a higher rate. As set out above, there is evidence that as the oil is withdrawn from the entire field (not just the edge tracts), water rises or comes into the thin or outside areas. This does two things: it cuts down on the recoverable oil in those tracts, and it pushes oil updip toward the thick tracts. If this oil is not recovered before that happens, it is lost to the owners of that tract. Their correlative rights are not protected.

In the Normanna, Port Acres, and Quit-man Field cases, this Court struck down proration formulas having a substantial “per well” factor.- Here there is none.' Moreover, even in those cases, this Court did not hold that a per well factor made the proration formula invalid per se. In the Quitman Field case, we said, “The Commission is not enjoined from adopting any formula which provides less than a 50% well factor * * *.” 380 S.W.2d at 561. The Court did not tie the hands of the Commission, and we do not tie them here.

Even if it be conceded that Pickens et al. will suffer some injury, that alone is not enough to invalidate the order. “When the orders are supported by evidence * * the fact that the application of the order has resulted in economic loss to some does not warrant a finding that there has been a deprivation of property without due process of law.” Railroad Commission v. Manziel, 361 S.W.2d 560 at 565 (Tex.1962).

On the problems of due process and confiscation, the question of whether a proration schedule based on factors other than acre-feet of recoverable oil would wrongfully deprive a person of his property was before the United States Supreme Court in Railroad Commission of Texas v. Rowan & Nichols Co., 310 U.S. 573, 60 S.Ct. 1021, 84 L.Ed. 1368 (1940). The Commission’s East Texas proration formula then provided that a [good] well could daily produce 3.2 percent of its hourly potential. This resulted in an allowable of about 22 barrels per day per well for the good wells with the best reserves in place. But of the total number of barrels allowed to be produced from the field, about 73 percent of the total oil produced came from wells which were exempt from the proration formula because they were “marginal wells.” Each of these marginal wells was permitted to produce up to 20 barrels per day. It was contended that the proration formula failed to give sufficient weight to the reserves in place, particularly the wells in the deep and rich portions of the field. The contention before the United States Supreme Court is set out in the opinion:

“Only an allocation based upon acre-feet of sand or its equivalent would be a reasonable means of measuring the oil in place beneath respondent’s leases; and any formula failing to do this takes respondent’s property without due process of law.” 310 U.S. at 578, 60 S.Ct. at 1023.

The lower federal courts struck down the order, but the Supreme Court reversed. It held that the proration of oil upon a fair basis was a matter for the administrative bodies and not for the judiciary. “A controversy like this always calls for fresh reminder that courts must not substitute their notions of expediency and fairness for those which have guided the agencies to whom the formulation and execution of policy have been entrusted.” 310 U.S. at 580-581, 60 S.Ct. at 1024. The force of the opinion by Justice Frankfurter is magnified by the dissent which says that an order not based on in-place reserves amounts to a confiscation of property.

The above case was followed in Railroad Commission of Texas v. Rowan & Nichols Oil Co., 311 U.S. 570, 61 S.Ct. 343, 85 L.Ed. 358 (1941). The Court there said, “Thus it is that a production formula dependent on current reserves of oil in place — a consideration which greatly influenced the court below [in striking down the order] and was urged before us — contains elements of unfairness to wells on the edge of the field by disregarding the migration of oil frotó west to east.” 311 U.S. at 574, 61 S.Ct. at 345.

In Railroad Commission v. Humble Oil & Ref. Co., 193 S.W.2d 824 (Tex.Civ.App.1946, n. r. e.), the Commission’s proration order for the Hawkins Field was based on a formula of 50 percent for the well and 50 percent for surface acreage. It was upheld as against many of the contentions advanced by Appellants here. Judge McClen-don stated that “It has never been held that recoverable reserves constitutes the only factor to be considered in determining the validity of a proration order.” 193 S.W.2d at 833. The evidence there was that a formula based only on reserves (acre-feet) would be impractical. That opinion was affirmed by the United States Supreme Court. Humble Oil & Ref. Co. v. Railroad Commission of Texas, 331 U.S. 791, 67 S.Ct. 1523, 91 L.Ed. 1820 (1947).

In the Port Acres case, it was proposed that the proration formula be based exclusively on net acre-feet. Part of the Commission’s order appealed from stated: “ ‘The Commission further denied your [Hal-bouty’s] application for an allocation formula based on net acre feet * * *.’ ” 357 S.W.2d at 367. While the Court struck down the particular formula with the large “per well” factor in it, the Court did not direct or even hint that a 100 percent acre-foot formula would be the only acceptable one. Instead, the Court held:

“We fully appreciate the thorny problem that the Commission has in this matter of proration among the hundreds of fields under their supervision with different characteristics and the diverse conflicting interests, views and opinions, but we are confident that with the trained personnel at their disposal a much nearer approximation can be made, giving to all parties an opportunity to produce a fair share of the minerals underlying the field with ratable allowables that will be more nearly equitable than appears in the case before us.” 357 S.W.2d at 375-376.

The Quitman Field opinion pointed out (380 S.W.2d at 560) that the Commission has been directed by the Legislature to consider many factors (not just reserves). A proration statute specifically lists surface acres as a consideration. Article 6008, § 13 V.A.C.S.

This Court has taken the position -that it is not the function of the Court to •substitute itself for the Commission in de-termining the wisdom or advisability of a ■particular order. The power to regulate the ■production of oil and gas has been delegated by the Legislature to the Commission. 'The Court will not usurp that authority. It will not invalidate an order of the Commission because some other order might be ■thought by the Court to be better or more -equitable. Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022 at 1029 (1942). The Commission’s order will be sustained if it is reasonably supported 'by substantial evidence. Railroad Commission v. Mackhank Pet. Co., 144 Tex. 393, 190 S.W.2d 802 (1945). Our holding is that ■this order of the Commission is reasonably •supported by substantial evidence.

The Order Is Not Invalid as Compelling Unitization

Appellants Pickens et al. also here attack the order on the ground that it is .an attempt on the part of the Commission ■to require forced pooling or unitization of the field. The argument is that the Com-mission is not authorized to force or require pooling; and it has sought to do so 'by indirection what it could not do directly. The assertion amounts to a charge that the Commission did not make a good faith independent effort to fairly prorate the oil but abdicated its governmental function to the field operators by blindly adopting their proposals. We are unable to agree -with this assertion.

Appellants assert that there was not intro■duced before the Commission substantial evidence to support its order, particülarly as to the water drive. The assertion is not a valid objection to the order. The record made before the Commission is not before us, and no attempt was made to introduce it into evidence. As this Court said in Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022 (1942), “Whether the agency heard sufficient evidence is not material. In fact, the evidence heard by the agency is not per se admissible upon the trial in the district court.” 161 S.W.2d at 1030.

There was no evidence of any purpose or design on the part of the Commissioners to adopt any formula which would force Pickens or anyone else to pool his or their production. No small tracts are involved. The units of production are 160 acres, and each well is capable of producing the oil under its tract. It is not asserted that anyone must pool his land with that of others to recover the minerals thereunder because of the cost of drilling a well, or for any other reason, as was pointed out as one of the grounds for the dissents in the Normanna and Port Acres cases. The fact that persons or corporations owning 88 or 92 percent of the production, after arguing among themselves, had been able to agree to the 50-50 formula which they recommended to the Commission, does not prove a relinquishment of authority by the Commission to anyone.

Appellants Pickens et al. say that this conclusion must be (conclusively) inferred as a fact from these circumstances:

The evidence is that soon after the discovery of this field, various operators recognized that ultimately a secondary recovery •program would be required to save great quantities of oil which would otherwise be left in the ground. Without such a program, they said, the field was expected to produce approximately 70 million barrels .of oil. With a program of secondary recovery, an additional 130 million barrels could be recovered.

A secondary recovery program cannot be confined to particular tracts. It can be carried out with less complications and with greater ease if the entire field is unitized. But no one, under the present •state of ’ the Texas law, can be required to unitize his tract against his will, or to participate in a secondary recovery program.

Committees and subcommittees were formed among the operators to study the 'field and its problems. All the operators, including Appellant Pickens, were invited to attend the meetings. Mr. Gruy ultimately did attend meetings where he represented Pickens. The factual basis for a major exhibit prepared for this trial by Gruy was taken from the files of the committee, which files were open to him.

The various producers had different selfish interests and different problems of production. Some' were over thin tracts "and ' others, including Appellee Hunt Gil Compahy '(which’had more'acre-feet of "production than anyonein the field) and Appellant Pitkens,; were over thick tracts. Hunt Oil Coftipany'was elected to head the main committee. . ■

The majority of the committee decided that it would, in the future, recommend to the' Commission that the field be unitized; and steps were taken in the hope of ultimately bringing about a voluntary unitization. At the time of the hearing before the Commission on this proration order, owners representing 88 percent of the production, as a separate and independent matter, had agreed to a voluntary unitization of the field. Pickens et al. had not. At the time of the hearing and at the time of. trial) ,the proposal for voluntary unitization had not been presented to the Commission. The Commission’s SO-SO formula makes no reference to unitization.

The same unofficial committee argued within itself over the most desirable proration formula. There were different opinions as to the best formula. As a result of what was regarded as an equitable compromise within the committee, the 50-50 proration formula was recommended. In making the recommendation it considered the structure of the field, permeability, porosity, pressure, where the water levels were, water drive, as well as acre-feet and surface acres. Evidence to support that formula was presented to the court. Some of the exhibits had been originally prepared by members of the committee for the consideration of the committee. The committee thought the 50-50 formula would be desirable for a period of 13 years. Thereafter a 100 percent acre-foot formula would be desirable. At the time of the hearing before the Commission, the ownership of 88 percent of the field’s production approved of the formula; and by the time of trial, 92 percent had approved.

Appellees assert that if this field is ultimately repressured by agreement of owners of 92 percent of the production, Pickens et •al. will still be in an advantageous position on the structure and will be greatly benefit■ed. They will be able to continue to produce on the basis of the Commission’s pro-ration order. Pickens will still recover, they say, 'more oil under the 50-50 formula, if the field is subject to secondary recovery, than.is recoverable under his tracts by the ordinary or primary means.

The Commission did enter the 50-50 formula as the majority of the operators recommended. There is evidence that this formula will encourage unitization. From this, Appellants Pickens et al. say that as a matter of law the 50-50 order is invalid because it forces pooling. We cannot agree.

In promulgating a proration formula, the Commission is acting prospectively. Its actions are legislative in character. Since the earliest days of the oil industry, it has been customary for interested people to recommend orders to the Commission. The Yates Field was operated by an advisory committee before the' Commission was given the power to prorate production. See Standard Oil Co. v. Railroad Commission, 215 S.W.2d 633 at 634 (Tex.Civ.App.1948, n. r. e.). There the operators employed an expert to prepare rules, and requested the Commission to adopt them. It did.

It is not improper f'or interested persons or groups to propose particular-legislative orders. Similar action is common before the Legislature itself. It is unnecessary here for us to say that the courts are never interested in the motives of an administrative body while it is acting in a legislative capacity under delegated powers. Here there is simply no evidence of any sort of abdication on the Commission’s part or a delegation of its powers to anyone. There is no evidence that the Commission disregarded the engineering and geological data available to it and entered the order just because some operators recommended it. The question is not one of unitization or pooling. That question was not before the Commission and is not before us; The question here is whether the order which the Commission entered, when tested by the usual rules, is or is not reasonably supported , by substantial evidence. We have held that it is. It is a valid exercise of the police power of the Commission to protect correlative rights under our statutes.

Evidence Adduced after Date of Commission’s Order

Appellants Pickens et al. contend that the trial court erred in admitting evidence of tests made, or other evidence discovered, after the date of the Commission’s proration order. They cite the familiar rule -that .the Commission’s order is to be tested by the conditions as they existed at the -time the Commission acted. Magnolia Pet. Co. v. New Process Production Company, 129 Tex. 617 ,104 S.W.2d 1106 (1937); Railroad Commission of Texas v. Magnolia Pet. Co., 130 Tex. 484, 109 S.W.2d 967 (1937); Cook Drilling Co. v. Gulf Oil Corp., 139 Tex. 80, 161 S.W.2d 1035 (1942).

The order in question was promulgated on 'March 6, 1963. Intervenor Hunt Oil Company, an appellee, tendered its Exhibit # 1 which was based on reservoir conditions to August 28, 1963. It was a structural isopach map, “On Top of James [Lime] Porosity,” and showed the portion of the field underlain by water. Exhibit #1 of Cities Service Oil Company was also an iso-pach map on top of the Fairway (James Lime) Field to show the area of the field underlain by water and the aquifer a.round the field. This exhibit was based on a map made in 1961 but which had been brought “up to date” down to August 1963. Hunt’s Exhibits #2 and #3, objected to 'for the same reason, showed, down to, August and November 1963, respectively, the cumulative oil production and the “water cut-percentage” (percentage of water produced per thousand barrels of oil) in particulár wells. Part of the testimony of the witnesses Dixon, Latimer, and Kelly was based on thesé exhibits. There were other exhibits similarly objected to.

It was stipulated during the trial that “all geological or engineering data * * * offered by any expert witness shall not be objected to on the ground of hearsay evidence,” or on the ground that it was not properly authenticated. Objection could be made on the grounds of materiality or relevancy. Appellants took the position that evidence of conditions, or evidence obtained, after March 3, 1963, was irrelevant and immaterial.

The trial court admitted the first of these exhibits with the following ruling:

“I will overrule the objection [of counsel for Pickens et al.] with the following qualification: That I will, only consider it if it shows anything that was in existence, or tends to show anything that was in existence, at the time of the order of the Commission, whether it was discovered later, or platted later, studied later, or the re-suits showed later. * * *
. “Now that may be a little complicated, but I felt that I must qualify it to that extent. The limitation in so far as information obtained, experiments and results of experiments made since the Railroad Commission order, is admissible in so far as it might show, or tend to show, what was actually in existence, or conditions in existence at the time of the Railroad Commission order, whether they were then known or not.”

There was substantially this same ruling on the admissibility of other evidence of the same nature.

The trial court’s ruling was correct. Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681 at 700 (1941). Many of the basic “conditions” which were geologically in existence in the oil field at the time the Commission acted'may have existed for a million years; and the fact that they were discovered, or evidence of the condition was adduced, after the Commission’s order would not render the evidence inadmissible. It is, of course, possible for conditions to change within the field; and it would not be entirely fair to the Commission to judge its orders by conditions which have changed since its order. Here, however, the trial court admitted the geological evidence which showed, or which tended to show, what the conditions were as of the time of the order, and what the Commission might reasonably have anticipated to occur as a result of those conditions.

While no particular point has been made of it in our opinions, this Court has considered geologic evidence which was adduced or discovered after the entry of the Commission’s order. In Railroad Commission v. Manziel, supra, for example, the order was dated August 15, 1960. This Court’s opinion sets out the results of tests made thereafter on September 1, 1961. See 361 S.W.2d at 573. Similarly in the Port Acres case, the order was dated August 18, 1958. The Commission refused to reconsider the order on July 6, 1959. This Court in its opinion refers to evidence as to uncompensated drainage as of April 1, 1960 (357 S.W.2d at 371), and of tests made in October 1960 as to comparative production among wells (See 357 S.W.2d at 372, Footnote 1). As reflected by the majority and' dissenting opinions in the Normanna case, the Bright & Schiff well which was under attack had not even been drilled, or the permit for its drilling issued, at the time the Commission issued its proration order for the field. Yet the validity of the Commission’s field-wide proration order turned in part on what that particular well would produce in the future compared to the in-place reserves which its lease was supposed'' to have.

In all of these proration cases, the Court has considered this type of evidence for its value in showing, or tending to show, what the conditions were when the Commission acted, and how they might reasonably be expected to develop in the future, even though the tests to verify, vel non, the existence of those conditions may have been conducted at some later date. In passing, it is noted that the tests here were made within a relatively brief time after the Commission’s order.

Admissibility of the Evidence of the Witness Pat Kelly

The defendant in the trial court, the Railroad Commission, tendered as its witness Mr. Pat Kelly to defend its position. Kelly qualified as an expert in the field of petroleum engineering. His testimony was objected to (1) because Kelly had been the trial examiner who took the testimony for the Commission when this matter was before the Commission; (2) because testimony received in the Commission’s hearing is not per se admissible in the trial before the court, and (3) part of Kelly’s testimony was based on tests made after the date of the Commission’s order. This last objection, having been considered above, will not be again noticed.

As to the objection that Kelly had been an examiner and hence was not competent to testify, Appellants Pickens et al. had no authorities to present to the trial court, and they cite none here. In ruling upon the admissibility of Kelly’s testimony, the trial court said that he would consider Kelly’s testimony which was based upon what Kelly knew as an expert. With regard to the second objection, the court said, “I will not consider over objection matters which are based solely on the ground that it [the evidence] was before the Commission.”

The fact that Kelly was an examiner for the Railroad Commission in this matter would not per se disqualify him as a witness for the Commission. The Commission, of course, is entitled to defend its order; and if Kelly otherwise qualified as an expert, he could testify to what he knew as an expert. There is precedent in this regard. In the “Flare Gas” case, Railroad Commission v. Sterling Oil and Ref. Co., 147 Tex. 547, 218 S.W.2d 415 (1949), this Court quoted the testimony of but two witnesses. They were Railroad Commissioners Murray and Thompson. Commissioner Murray testified as a petroleum engineer. Commissioner Thompson simply testified as a Commissioner in defense of the Commission’s order. Based on the testimony of these two witnesses, this Court held the order to be reasonably supported by substantial evidence.

In other cases involving the Commission’s orders, employees of the Commission have testified. Similar holdings have been made with regard to permitting a Commissioner in a condemnation case to testify as an expert upon the trial as to the value of the property taken. City of Houston v. Schorr, 231 S.W.2d 740 (Tex.Civ.App.1950, wr. dism’d); Schwab v. County of Bexar, 366 S.W.2d 952 (Tex.Civ.App.1963, n. r. e.). Without writing on the point, this Court considered such evidence in its opinion in Texas Electric Service Co. v. Campbell, 161 Tex. 77, 336 S.W.2d 742 at 743 (1960).

Accordingly, we hold that the trial court did not err in admitting the evidence complained of. As above indicated, we also hold that the proration order in question for the Fairway (James Lime) Field is reasonably supported by substantial evidence and is valid. The judgment of the trial court is affirmed.

      . Atlantic Refining Co. v. Railroad Commission, 162 Tex. 274, 346 S.W.2d 801 (1961) (Normanna Field).

      . Halbouty v. Railroad Commission, 163 Tex. 417, 357 S.W.2d 364 (1962) (Port Acres Field).

      . Railroad Commission v. Shell Oil Co., 380 S.W.2d 556 (Tex.1964). See also Railroad Commission v. Williams, 163 Tex. 370, 356 S.W.2d 131 at 136 (1962) as to Rule 37 cases.

      . Atlantic Ref. Co. v. Railroad Commission, 162 Tex. 274, 346 S.W.2d 801 (Tex.1961) (Normanna Meld); Halbouty v. Railroad Commission, 163 Tex. 417, 357 S.W.2d 364 (1962) (Port Acres Field); and Railroad Commission v. Shell Oil Co., 380 S.W.2d 556 (Tex.1964) (Quitman Field).

      . Though both sides objected from time to time about what evidence the Commission heard, and the objections were sustained, there was in fact evidence from Appellants’ witness Gruy that Phillips Petroleum Company had introduced evidence before the Commission as to the water drive.

      . No question regarding the anti-trust laws is here raised or passed upon.

      . Our disposition of this point makes it unnecessary to write upon the question of our jurisdiction to consider, on direct appeal, implied [or express] findings of fact made by the trial court. It has generally been regarded that this Court could consider only questions of law, and is without power to make or overturn findings of fact, except on the basis of “no evidence,” “no substantial evidence,” or the converse thereof.

      . 346 S.W.2d at 804. The proration orders were dated December 1957 and February 1958. 346 S.W.2d at 802. Bright & Schiff's permit to drill was dated December 1958. 346 S.W.2d at 816. There was considerable delay in the completion of the well because Atlantic Refining Company constructed a warehouse at the place where the driller needed to place his machinery. This resulted in injunc-tive litigation ending in this Court. Atlantic Ref. Co. v. Bright & Schiff, 321 S.W.2d 167 (Tex.Civ.App.1959, n. r. e). The estimates of future production appear in our Normanna opinion in 346 S.W.2d at 803 and 804.

      . Standard Oil Company of Texas v. Railroad Commission, 215 S.W.2d 633 (Tex.Civ.App.1948, n. r. e.), involving the proration of oil in the Yates field, where the Court’s opinion sets out and comments on the testimony of Mr. Jack Baumel, then the Director of the Commission’s Oil and Gas Division; Railroad Commission v. Humble Oil & Ref. Co., 193 S.W.2d 824, 829, 831 (Tex.Civ.App.1946, n. r. e.), where Mr. Baumel again testified; and Phillips Petroleum Co. v. Railroad Commission, 341 S.W.2d 523 (Tex.Civ.App.1960, n. r. e.).


author: DICE, Commissioner.

text:
    Norman Homer SHORT, Appellant, v. The STATE of Texas, Appellee.
    No. 37710.
    Court of Criminal Appeals of Texas.
    Feb. 24, 1965.
    Bryant, Glenn & Thomas, by Bill Thomas, Abilene (On Appeal), for appellant.
    Leon-B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for aggravated assault with a motor vehicle, by negligence; the punishment, a fine of $250.

The complaint and information charging negligence are fatally defective for the reason that the act or acts relied upon to constitute negligence are not alleged as required by Art. 408a, Vernon’s Ann.C.C.P. See: Scott v. State, Tex.Cr.App., 344 S.W.2d 457.

By motion to quash, appellant pointed out such defect in the state’s pleading, which motion was by the court overruled.

Because of the insufficiency of the complaint and information, the judgment is reversed and the prosecution is ordered dismissed.

Opinion approved by the Court


author: McDONALD, Presiding Judge.

text:
    Billy Charles GRAHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 37757.
    Court of Criminal Appeals of Texas.
    Feb. 24, 1965.
    Charles R. Wheeler, Fort Worth, for appellant

      Doug Cr.ouch, Dist. Atty., Grady Hight and R. J. Adcock, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is burglary, with a prior conviction for a like offense alleged for enhancement under Article 62, Vernon’s Ann. P.C.; the punishment, 12 years’ confinement in the State penitentiary.

The State’s evidence reflects that on the 16th day of January, 1964, the defendant, Billy Charles Graham, was arrested by Officer Noel Davis of the White Settlement police department inside the business house of T. J. Lawler, located at 8185 White Settlement Road, Tarrant County, Texas. Investigation of the premises revealed that forcible entry had been made by breaking a padlock and an inside locking mechanism of the front door of the business house. The knob from the safe had been knocked, a cash register pried open, and a stamp dispensing machine had been smashed inside the premises. In searching the appellant, Billy Charles Graham, the majority of $535.-00 was found, and a crow bar, screwdriver, hammer and chisel were found in the vicinity of the safe and broken stamp machine. The prior conviction of burglary count of the indictment was established by fingerprint comparison of the appellant with records from the Texas Department of Corrections and the appellant’s own admission. The appellant introduced into evidence a letter from Dr. Barnard J. Dolenz, a specialist in neuropsychiatry, pertaining to his plea of insanity. Examination of Dr. Do-lenz’s report reveals that he had examined the appellant, conducting a skull series and an EEG, both awake and sleeping. His conclusions were that the appellant was responsible for his actions and for his activities. The appellant testified himself as to his insanity and stated that he remembered specifically the committing of the offense and being arrested by the officer. His chief statement as to his insanity was, “because I was always getting into trouble.”

The court charged the jury as to the issues, and a verdict of guilty as charged in the indictment was returned by the jury. The jury also found him now sane.

Appellant’s court-appointed counsel on appeal has filed a brief which exemplifies counsel’s diligence and sincerity. Appellant has also filed a brief in his own behalf. Neither brief directs our attention to any reversible error, nor does it raise an issue worthy of discussion. We have carefully examined the entire record and read with great care both briefs filed in appellant’s behalf. We feel that appellant received a fair trial.

We find the evidence sufficient to sustain the verdict. Finding no reversible errors, the judgment is affirmed.


author: MORRISON, Judge. WOODLEY, Judge

text:
    Artis W. MIDDLEBROOK, Appellant, v. The STATE of Texas, Appellee.
    No. 37782.
    Court of Criminal Appeals of Texas.
    Feb. 24, 1965.

      Weldon Holcomb, Tyler, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is unlawfully transporting beer in a dry area; the punishment, a fine of $100.00.

In view of the disposition of this cause, a recitation of the facts is deemed unnecessary.

It is axiomatic that every affirmative defense raised by the evidence shall be submitted to the jury in the court’s charge. The fact that the judge does not believe the accused’s defense does not alter his duty to submit the question to the jury for their decision. Schroeder v. State, 170 Tex.Cr.R. 423, 341 S.W.2d 450.

In the case at bar appellant was shown to have lived in Smith County all of his life and had never before been convicted for a violation of the liquor law. He testified that he acquired the beer in question lawfully in an area where its purchase was legal and was on a direct route to his home where he intended to keep the beer for his own personal use. That issue should have been submitted to the jury.

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

WOODLEY, Judge

(concurring).

Appellant testified that he owned a cafe in Kilgore and was licensed to sell beer there; that the beer found in his car in Smith County was the remnant of his stock of merchandise which he was carrying to his home in said County, a dry area, for his own consumption.

The controlling question is — was such transportation of the beer in the dry area unlawful ?

Over appellant's exception, the court refused to submit to the jury as an affirmative defense the issue raised by his testimony. He charged the jury to the effect that proof of the transporting of a quantity exceeding 24 twelve ounce containers of beer shall be prima facie evidence that such beer was being transported in violation of the law.

Art. 666-23a(l) Vernon’s Ann.P.C. reads: “ * * * any person who purchases alcoholic beverages for his own consumption may transport same from a place where the sale thereof is legal to a place where the possession thereof is legal.”

The crux of the defense is the legality of the acquisition at a place where the sale is legal, and legality of possession at the place to which the beverage is transported.

One dictionary meaning of “Purchase” is “something gotten by any means.” In Real Property Law “Purchase” has been defined as “the possession of lands * * * which a man hath by his own act or agreement * * * In this sense he who takes by gift or by alienation is regarded by the law as a purchaser.”

The conclusion is expressed that, assuming that appellant’s testimony is true, the transportation of the beer lawfully obtained from his place of business in a wet area to his home in a dry area for his own consumption was not unlawful and such testimony raised an affirmative defense which should have been submitted to the jury.


author: MORRISON, Judge.

text:
    James Harold REDMOND, Appellant, v. The STATE of Texas, Appellee.
    No. 37836.
    Court of Criminal Appeals of Texas.
    Feb. 24, 1965.
    No attorney of record on appeal for appellant.
    Henry Wade, Dist. Atty., Frank Watts, John Vance, Tom Reese 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 robbery by firearms; the punishment, 10 years.

No statement of facts accompanies the •record.

Appellant’s motion for continuance which was overruled by the court cannot be appraised because no statement of facts on the hearing on the motion is before us. We cannot accept the allegations in the motion as proof of such fact. Cartwright v. State, 158 Tex.Cr.R. 344, 255 S.W.2d 878.

The proceedings appear to be regular and nothing is presented for review.

The judgment is affirmed.


author: WOODLEY, Judge.

text:
    Donald L. GARRETT, Appellant, v. The STATE of Texas, Appellee.
    No. 37506.
    Court of Criminal Appeals of Texas.
    Jan. 27, 1965.
    Rehearing Denied March 10, 1965.

      Joe S. Moss, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, W. Louis White and Daniel P. Ryan,, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is false swearing; the punishment, two years.

The indictment set out a statement of Donald L. Garrett subscribed and sworn to before William A. Gee, Notary Public of Harris County, Texas on November 10, 1959.

The affidavit related to an accident which occurred on November 6, 1959, in which an automobile in which the affiant was a passenger, stopped for the traffic light at an intersection, was struck from the rear by a truck, the accident resulting in personal injury to the affiant.

The affidavit contained the statement alleged to be false: “I have never had an injury of any kind before this nor have I ever had a claim before,” and the indictment alleged that in truth and in fact ap~ pellant “had theretofore on or about the 28th day of October, 1959, made a claim for personal injuries allegedly received by him, the said Donald L. Garrett, on the 21st day of October, 1959, when allegedly involved in a collision with a motor vehicle in Denver, Colorado.”

Appellant's first ground for reversal relates to the overruling of his exception and motion to quash the indictment.

The contention is advanced that the allegation of the indictment that appellant swore he never HAD a claim before was not traversed by the allegation that in truth and in fact he had theretofore MADE a claim for personal injuries.

We find no merit in this attack upon the indictment. If appellant in truth and in fact had theretofore asserted a right and made a claim for personal injuries, then his averment that he never had a claim before was necessarily false. This is true whether either claim was valid or not.

The state introduced evidence including the voluntary confession of the appellant from which the jury was warranted in finding that appellant made the affidavit set out in the indictment in connection with a claim for damages he claimed to have received in a staged fake automobile collision and swore: “I have never had an injury of any kind before this nor have I ever had a claim before,” whereas he had previously staged a similar “accident” in Colorado and had received money ■from Liberty Mutual Insurance Co.

In his confession appellant admitted that he had staged the fake accidents and that the statement he made under oath that he had never had a claim before was false and he knew it was false at the time he signed it.

Appellant questions the sufficiency of the evidence to comply with Art. 723, ■C.C.P. which provides that in trials for perjury or false swearing, no person shall be convicted except upon the testimony of two credible witnesses, “or of one credible witness corroborated strongly by other evidence as to the falsity of the defendant’s statement under oath, or upon his own confession in open court.”

William A. Gee, Insurance Adjuster and Notary Public in and for Harris County, Texas, testified as to the making and signing of the affidavit before him by the appellant. He testified that he questioned appellant closely and he answered several times that he had never had an injury nor a claim before.

The affidavit described in the indictment was identified by Mr. Gee and introduced in evidence.

In addition to appellant’s full description of the faked accident in Colorado and his claim for damages, the state called as a witness Jerry L. Slagle, Claims Adjuster for The Liberty Mutual Insurance Company, who identified the appellant as the person with whom he had a conversation and discussion in October, 1959, in which appellant told him he had been hurt in an automobile accident which occurred in Denver and was presenting a claim to his company for bodily injury and property damage. He testified that appellant was paid some $750 for damage to the rear end of his car and for personal injuries.

We overrule appellant’s contention that the evidence is insufficient in view of Art. 723, C.C.P. Musick v. State, 106 Tex.Cr.R. 207, 292 S.W. 223.

The state was not required to produce written records as to the claim about which the witness Slagle testified. The fact that a claim was made, not its contents, was the purpose of Mr. Slagle’s testimony.

Appellant’s confession was introduced without any issue being made or suggested as to the state’s proof that it was voluntarily made. The state did not introduce the portion of said confession which reads: “At the time I signed the statement, I did not know this adjuster was a notary public.” This portion of the confession was offered by the defense and the confession was admitted in evidence without objection. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, has no application.

Appellant complains of the failure of the trial court to instruct the jury to the effect that he should be acquitted if the jury believed or had reasonable doubt that he did not know he was being sworn to the statement or did not know that the adjuster was a notary public. We are cited to no authority and know of none which supports this contention.

The court, in his charge, required the jury in order to convict to find beyond a reasonable doubt that appellant personally appeared before William Gee, a duly appointed and qualified notary public in and for Harris County, Texas, who was then and there duly authorized as such officer to administer oaths and that appellant, having been duly sworn by said William Gee, did then and there wilfully, deliberately and unlawfully under sanction of said oath so legally administered to him by said William Gee, make the affidavit and that the statements therein: “I have never had an injury of any kind before this nor have I ever had a claim before,” were deliberately and wilfully made and were wilfully and deliberately false as he then and there well knew and in truth and in fact he had theretofore on or about October 28, 1959, made a claim for personal injuries allegedly received by him when allegedly involved in a collision with a motor vehicle in Denver, Colorado.

The remaining ground for reversal relates to the overruling of appellant’s plea of former conviction based upon his conviction in Federal Court on his plea of guilty, which concerned his schemes and devices to defraud insurance companies.

The claimed error is not before us for consideration. It is not presented by formal bill of exception or by an informal bill under the provisions of Art. 760e, Vernon’s Ann.C.C.P., which relates only to the motions therein named.

If before us, we find no merit in the claim of former conviction, both because the offense in Federal Court is not shown to be the same offense as the offense of false swearing, and because a prosecution in State Court is not barred by a conviction in Federal Court involving the same act. Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729; Bartkus v. People of State of Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684.

No reversible error appearing, the judgment is affirmed.


text:
    James Lee MARION, Appellant, v. The STATE of Texas, Appellee.
    No. 37297.
    Court of Criminal Appeals of Texas.
    Dec. 2, 1964.
    Rehearing Denied Feb. 3, 1965.
    Second Motion for Rehearing Denied March 10, 1965.

      Carl Steckelberg, Garland Casebier, Midland, for appellant.
    Joseph H. Mims, Dist. Atty., Midland, Alton R. Griffin, Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment, death.

The Turner house in Midland occupied an entire city block. Mr. Turner was away and his wife was at home alone. At approximately 4:12 a. m. on October 29, three of the Turners’ neighbors heard screams somewhere in that neighborhood. Neighbor Galley notified the police and within four minutes patrols reached the area. They cruised throughout this vicinity until daylight, but were unable to discover anything suspicious. At 7:40 the Turners’ maid, Juanita Young, appeared for work and when she observed muddy tracks both outside and inside the house, she retreated to a neighbor’s home and called Mr. Schar-bauer, Mrs. Turner’s son-in-law. He arrived with his wife and asked the neighbor to call the Sheriff, and the Scharbauers and the maid proceeded to the Turner home. He and the maid ascended the stairs and discovered that Mrs. Turner’s bedroom door had been battered in with a pinch bar and inside they found her lifeless blood stained body on the floor. They descended the stairs and went outside to greet the Sheriff. Mrs. Scharbauer was left alone in the library crying. An armed colored man, whom she identified as the appellant, entered and asked her if she lived there and when she answered in the negative, hit her on the head with the pistol he was carrying. At this juncture Scharbauer, the Sheriff and a deputy entered and appellant surprised them and, at pistol point and by means of threats to further harm Mrs. Scharbauer, lined them up in the library. After some hesitation appellant abandoned his dominion over the four and ran out the front door. The maid and the yard boy were outside and saw him leave. Chase ensued, but he was able to evade his pursuers. Some four hours later he was apprehended in the attic of a small business armed with a .380 revolver. On the floor in the room below the entrance to the attic was found an identification holder containing a picture of Mr. Turner.

Soon after the discovery of Mrs. Turner’s body the coroner arrived. He and a pathologist testified that massive bruises about the face and head, administered by a weapon similar to the .380 pistol, caused Mrs. Turner’s death. The pistol was shown by expert testimony to have hair comparable in many respects to samples taken from the corpse imbedded in the butt and clip thereof. Samples of mud taken from - appellant’s shoes were shown to have the same soil characteristics as that found in the Turner home. Three buttons found in or near Mrs. Turner’s bedroom matched those on the shirt appellant was wearing and from which three had been recently torn. Plaster casts were made of footprints outside the Turners’ window and appellant’s shoes were shown to fit the same perfectly. Appellant’s pants had flecks of human blood thereon.

We have concluded that the above is a fair summary of the many witnesses, lay and expert,' as to the physical facts of this case which took a week to try.

After appellant’s arrest at 11:50 a. m., he was interrogated by Officers Gideon and Morales and at 1:15 p. m. signed a confession in which he recites that the murder occurred as the result of a burglary and attempt to rob Mrs. Turner. The appellant had remained in the big house until the next morning when a loud noise awoke him and he escaped by means of placing the people .in the house in fear of being shot. Prior to the taking of the confession appellant was warned by Officer Gideon of his right to remain silent concerning the offense about which this statement is made. Officer Gideon affirmatively answered to appellant’s counsel’s question, “Did you suggest to him that he should have counsel?”, and stated that appellant had said that he just wanted to get it over with. He testified further that there was a telephone nearby and that he told appellant he might use it if he wanted to call a lawyer. At 3:50 p. m. appellant was arraigned before the-Justice of the Peace who testified in answer to appellant’s counsel’s question that he felt he had performed his duty toward appellant when he told him of his rights as a citizen and asked him if he wanted a lawyer.

Dr. Shaw, a psychiatrist, examined appellant later in the afternoon for 10 or 15 minutes, found no marks or physical injury, and found him to be oriented as to time, place and identity. On October 30, Dr. Shaw and Dr. Youngblood, also a psychiatrist, examined appellant psychiatrically for approximately an- hour and again on November 11, for a like period of time and expressed the opinions that appellant knew the consequences of the act at the time of its commission and knew the difference between right and wrong.

On November 15, Officer Morales, the Sheriff and an assistant district attorney being present, again interrogated appellant,, warned him of his right to remain silent, advised him that anything he might say could be used against him, and a fuller-confession was reduced to writing and signed by appellant. Following this, appellant was again examined by Dr. Shaw.

Appellant was not called as a witness, but Dr. Kovnar, a psychologist, testified that he-had given appellant repeated tests used by those in his profession and expressed the opinion that appellant was of dull-normal, intelligence with a propensity for homosexuality and reacted to primitive impulses when given alcohol. He did not express an opinion as to whether or not appellant knew the difference between right and wrong.

Dr. Schlenker, a psychiatrist, testified that he had conferred with Dr. Kovnar and had examined appellant for about 40 minutes. He expressed the opinion that the psychiatric tests showed that appellant would release hostilities when under the influence of alcohol. In answer to a hypothetical question, he testified that in his opinion appellant did not understand the nature and ■quality of his act or know that he would he punished if he were caught.

The jury resolved the controversial issue in the case when they found appellant to be sane, and we find the evidence suffi•cient to support the conviction.

Appellant’s objections to the admis-•s'ion of the confessions are presented in his motion to exclude the same filed before testimony was taken and renewed upon the offer of each confession. The principal grounds for such objections are that he was not represented by counsel at the time the •confessions were made. Principal reliance is had upon Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, but in that case it was affirmatively shown and the opinion of the Court emphasizes that Escobedo requested and was denied an ■opportunity to consult with his lawyer.

We here observe that appellant was ad-wised of his right to remain silent, had it •suggested to him that he could call counsel, ■ and a telephone was made available for his use before either confession was made. Appellant declined to use the telephone and failed to make any effort to comply with the .suggestion.

He next contends that the statement found in his confession, “I was drunk when I broke into the house” constitutes an exculpatory statement. Drunkenness is no excuse for the commission of crime, Article 36, Vernon’s Ann.P.C., and the trial court so told the jury. He contends that because his expert witnesses had testified that appellant “suffered from a mental condition which stimulated or aggravated by the re■cent use of alcohol rendered him temporarily insane”, and because his witness White testified that he was intoxicated on the night in question, the phrase “I was drunk” was exculpatory. “I was drunk” standing alone is not exculpatory. It was appellant and not the State who offered the additional testimony which he says made the statement “I was drunk” exculpatory. The court was not required to so charge.

Appellant next contends that the court erred in permitting Coroner Ellis to testify as to injuries which he observed on the grounds that other witnesses who had preceded Ellis to the witness stand had already testified about such injuries. He cites the admonition contained in the majority opinion on rehearing in Kennedy v. State, 161 Tex.Cr.R. 303, 276 S.W.2d 291. He concedes that their testimony was not identical and we agree. It is only identical testimony which the majority frowned upon in Kennedy.

He further contends that the court erred in permitting the pathologist to use a plastic skull which was manufactured by the Medical Plastic Laboratory of Gates-ville, Texas, which she stated was a correct replica of the human skull, in order to make her testimony clearer for the jury as to the cause of death. Surely such a model does not come within the ghastly picture or bloody clothes rule expressed in Borroum v. State, 168 Tex.Cr.R. 552, 331 S.W.2d 314 (since overruled) and Hunter v. State, 161 Tex.Cr.R. 225, 275 S.W.2d 803.

The trial court submitted the defense raised by the testimony of appellant’s witnesses, and we overrule his contentions that the court erred in not granting his motion for new trial based upon the contention that the jury verdict was against the preponderance of the evidence.

His last contention is that the court erred in admitting the testimony of the Sheriff as to a statement made by appellant while he was holding the four under his domination at gun point in ’the library. The Sheriff testified that Mr; Scharbauer asked appellant’s permission to allow him to attend to his wife’s injuries. Appellant denied such request and instructed him to “straighten up there” and said, “Do you want her to live?” Clearly the statement was made during and in furtherance of the appellant’s flight from the scene of the homicide and therefore admissible.

Finding no reversible error, the conviction is affirmed.