author: STEAKLEY, Justice. WALKER, Justice SMITH, Justice

text:
    Sal MARESCA et al., Relators, v. William MARKS et al., Respondents.
    No. A-9090.
    Supreme Court of Texas.
    Nov. 21, 1962.
    Potash, Cameron, Bernat & Studdard, El Paso, for relators.
    Scott, Hulse, Marshall & Feuille, El Paso, for respondents.
   STEAKLEY, Justice.

Relators are Sal Maresca and Herbert Keller, individually, Desert Hills Restaurant, Inc., and Golden Door, Inc. Respondents are William Marks and Honorable David Mulcahy, District Judge. Re-lators employed respondent William Marks as manager of Desert Hills Restaurant, Inc., and Golden Door, Inc., in El Paso. He was to be paid a salary of $150.00 weekly plus 3% of the net profits. He remained in such employment from June 20, 1961, until October 17, 1961, and thereafter sued relators for 3% of the net profits during the period of his employment, for his traveling expenses in moving from New York to El Paso, for the reasonable value of the use of his automobile during the period of employment, and for exemplary damages for fraud and deceit.

By motion pursuant to the provisions of Rule 167, Texas Rules of Civil Procedure, respondent Marks sought an order of the trial court requiring relators to produce copies of the personal federal income tax returns of the individual relators and their wives for the years 1960 and 1961, and of the income tax reports filed by the corporate relators for the fiscal years ending October 31, 1960, and October 31, 1961, for inspection and copying or photographing by respondent. The individual relators are the president and vice president of the two corporations.

After hearing of the motion the trial judge ordered the entire income tax returns of all relators submitted to respondent for inspection and copying. The order recites that the trial judge “examined” all the returns “in order to determine what part of such returns, if any, were material and relevant to this cause * * * and thereupon concluded that, pursuant to the motion and pleadings, and matters of record before this court, fhe entire income tax returns in question constitute material evidence relative to the matters alleged and raised in this cause. * * *.”

Relators thereupon initiated this original mandamus proceeding seeking relief from the discovery order. Copies of the income tax returns in question are included with relators’ petition for writ of mandamus, an examination of which discloses that certain portions are irrelevant to the matters in dispute between the parties as shown in the pleadings.

Relators’ position is that the income tax returns list private information regarding charitable contributions, interest paid, real estate and other taxes paid, medical expenses, casualty loss, interest income and other matters which are totally irrelevant and immaterial and beyond the scope of the discovery proceeding. Respondent Marks in his reply to the petition for writ of mandamus takes the position that “the fact that such instruments may contain inconsequential matters, such as charitable contributions, medical expenses and casualty loss, is not sufficient to show an unreasonable invasion of private rights in this case or an abuse of discretion on the part of the trial court for which a writ of mandamus should issue.” In oral argument, counsel for respondent Marks acknowledged that there are no pleadings under which such facts contained in the income tax reports would have relevancy or materiality in his suit against relators but insisted that they are inconsequential.

We thus have the narrow but difficult question of whether the order 'of the trial judge requiring disclosure and exposure of information contained in income tax returns which is immaterial and irrelevant to the cause in which discovery is sought is a clear abuse of discretion for correction of which the writ of mandamus may issue.

The problem was considered by this court in Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434, and it was held that income tax returns are not wholly privileged documents but are subject to discovery to the extent of relevancy and materiality which must be shown. It was further held that the trial judge abused his discretion “On failing to examine the income tax return and to separate the relevant and material parts from the irrelevant and immaterial parts.” The concurring opinion pointed out that the discovery procedure clearly does not authorize the examination and reproduction of information of a highly personal and private nature not relevant and material to the issues; that since certain information in the income tax return there under review was not relevant and material, it was a clear abuse of discretion to order delivery of the entire return for examination and reproduction; and that “[mjere inspection or examination of the return” by the trial judge before ordering it delivered “could not make it any less so.” In Neville v. Brewster, Tex., 352 S.W.2d 449, 451, we said that “[i]t was incumbent upon the court to exclude those matters which were irrelevant and yet afford to the adversary all information that might be relevant and material to his cause of action.”

The assumption is implicit in the opinions of this court that a trial judge will discriminate in ordering discovery between information disclosed by income tax returns which is relevant and material to the matters in controversy and information which is not. The protection of privacy is of fundamental—indeed, of constitutional— importance. Subjecting federal income tax returns of our citizens to discovery is sustainable only because the pursuit of justice between litigants outweighs protection of their privacy. But sacrifice of the latter should be kept to the minimum, and this requires scrupulous limitation of discovery to information furthering justice between the parties which, in turn, can only be information of relevancy and materiality to the matters in controversy.

It is self-evident that the maximum protection of privacy is unattainable if trial' ■courts do not exercise their discretion to safeguard from discovery those portions of income tax returns which are irrelevant and immaterial, and it is our view that failure to exercise such discretion is arbitrary action. A litigant so subjected to an invasion of his privacy has a clear legal right to an extraordinary remedy since there can be no relief on appeal; privacy once broken by the inspection and copying of income tax returns by an adversary cannot be retrieved. We said in Wallace v. Briggs, 162 Tex. 485, 348 S.W.2d 523, 527: “This being an interlocutory order from which no appeal will lie the petitioner’s only remedy is by way of writ of mandamus. In a similar situation we have issued writs of mandamus where it appears that the trial judge in entering interlocutory orders has abused his discretion. Crane et al. v. Tunks, [160], Tex. [182], 328 S.W.2d 434; Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677; Southern Bag & Burlap Co. v. Boyd, 120 Tex. 418, 38 S.W.2d 565.”

We therefore hold that the trial judge abused his discretion in ordering re-lators to produce for respondent’s inspection and copying their entire income tax returns for the years in question, without separation of the relevant and material parts from the irrelevant and immaterial parts thereof.

We fully recognize, as said in the concurring opinion in Crane v. Tunks, that we cannot by writ of mandamus supervise the exercise of discretion by a trial judge in his rulings on the relevancy and materiality of information contained in income tax returns. We can, and should, however, afford extraordinary relief when no discretion has been exercised, i. e., when the order of the trial judge does not separate for protection against discovery those portions of income tax returns plainly irrelevant and immaterial to the matters in controversy.

The operation of the order under review has been held in abeyance pending our action. We are certain that it will be succeeded by an order consistent with the views we have expressed and that it will be unnecessary for a writ of mandamus to issue at this time.

WALKER, Justice

(dissenting).

While I agree that certain portions of the individual income tax returns are irrelevant and should not be disclosed to Marks, it is my opinion that we should tell the district judge exactly what he will be mandamused to do in the event he fails to do it. He has examined the returns and in the exercise of his judicial discretion has determined that they constitute evidence material to the matters alleged and raised in the cause. It also is clear that Marks is entitled to inspect and copy the corporate tax returns and possibly some parts of the individual returns. The district judge abused his discretion in certain respects, but the discovery order is not wholly void.

The order must be presumed valid for the purpose of this mandamus proceeding, and the burden is upon relators to show which portions of the returns do not contain evidence material to any matter involved in the case. To the extent that they have discharged this burden, we should point out in the opinion, and in the writ of mandamus if issued, the manner in which the discovery order should be modified. This practice, which has been followed in the past, insures that a proper order will be entered promptly, and thus enables the parties to complete their investigation and bring the litigation to an early conclusion. See Southern Bag & Burlap Co. v. Boyd, 120 Tex. 418, 38 S.W.2d 565.

Here the Court says only that the trial judge abused his discretion in ordering re-lators to produce the entire returns, and then expresses confidence that an order consistent with the views stated in the opinion will be entered. The opinion does not purport, however, to indicate all of the different parts of the returns that are immaterial. This falls somewhat short of discharging what I regard as the responsibility of the Supreme Court in a proceeding of this nature.

After the district judge has determined in the first instance that certain documents are subject to discovery and we decide to control the exercise of his discretion by mandamus, both the judge and the parties are entitled to have this Court state clearly and explicitly the papers or parts thereof which the moving party should not be permitted to examine. It is entirely possible that the judge in this case will enter another order which eliminates some but not all immaterial portions of the individual returns. Relators could then ask leave to file another mandamus proceeding, and under the practice that is established by the majority opinion the judge would be instructed to try again. Marks might also establish his right to similar relief if the second order denied discovery of information that is material. A case could thus bounce back and forth like a rubber ball between the district court and the Supreme Court until by a process of trial and error the judge finally enters an order that is consistent with our secret views. While that may not occur in the present case, the precedent established here is not conducive to the prompt and efficient administration of justice. I would specify the portions of the individual returns which are not subject to discovery.

GRIFFIN, J., joins in this dissent.

SMITH, Justice

(dissenting).

I respectfully dissent. While a mandamus might properly be invoked to compel a proper means of exercising ministerial duties under certain facts similar to those established in Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434, such as to compel an inspection, such remedy is not available to compel the Trial Court Judge to exercise its discretion in any particular manner or way. King v. Guerra, Tex.Civ.App., 1 S.W.2d 373 (1927), wr. ref. March 7, 1928.

This court will not and should not issue writs of mandamus to control or revise the exercise of discretion by trial courts in the performance of purely judicial as distinguished from ministerial acts. Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648, and cases therein cited. No clear right has been shown authorizing the granting of the writ of mandamus. This court is not vested with general supervisory power over the District Courts, but its original jurisdiction is limited to that conferred by definite constitutional provisions and statutes enacted thereunder. Article 5, Section 3 of the Constitution of Texas, Vernon’s Ann.St.; Article 1733, Vernon’s Texas Civil Statutes; Yett v. Cook, 115 Tex. 175, 268 S.W. 715, 281 S.W. 843; State Board of Insurance v. Betts, 158 Tex. 83, 308 S.W.2d 846. In this latter case, this court said that if an exercise of judicial discretion by the District Judge be involved, this court may not assert its original jurisdiction to enforce its own judgment, even though the action of the district judge may have been improvident or otherwise erroneous.

In the case at bar, the motion for production of documents was heard and considered by the Court. The Court’s judgment recites that all parties were before the Court; that the Court

“ * * * heard the arguments of counsel in considering all matters raised pursuant to such motion and placed the motion under advisement by the Court and reviewed the pleadings, depositions and all matters of record in this cause and examined the joint income tax returns of Mr. and Mrs. Salvador Ma-resca for the years 1960 and 1961, the joint income tax returns of Mr. and Mrs. Herbert Keller filed for the years 1960 and 1961 and the corporate income tax returns filed on behalf of the District Hills Restaurant, Inc. and the Golden Door, Inc. * * * in order to determine what part of such returns, if any, were material and relevant to this cause before requiring defendants to produce such returns * * * for examination * * *; and thereupon concluded that pursuant to the motion, pleadings, evidence and matters of record before this court, the entire income tax returns in question constitute material evidence relative to the matters alleged and raised in this cause for the determination of a jury and are within the possession, custody and control of the defendants and their attorney of record.”

The Court’s judgment was entered granting the plaintiff permission to inspect and copy the documents, personal income tax returns, etc. Unless a clear right has been shown authorizing the granting of the writ of mandamus, such writ must be denied. No showing has been made by the Relators that any part of the income tax returns were not material. There is no indication that the Court’s order is void. Rule 167, T.R.C.P., provides for the inspection and copying of documents, etc. “which constitute or contain evidence material to any matter involved in the action.” See concurring opinion in Crane v. Tunks, supra.

Does this court have the power to substitute its judgment, after reviewing the evidence, depositions and all matters of record, for the judgment and decision of the Trial Court and control the discretion of the Trial Court by a writ of mandamus? I say not. In the case of Turner v. Pruitt (1961), 161 Tex. 532, 535, 342 S.W.2d 422, 423, this court said that:

“writs of mandamus issue to control the conduct of an officer of government, judicial or administrative, only when the duty to do the act commanded is clear and definite and involves the exercise of no discretion — that is, when the act is ministerial. * * * [T]he many cases in which writs of mandamus have issued from this court requiring or compelling the doing of a particular act because the duty of the judge was clear and ministerial and did not involve the exercise of discretion. See * * * Crane v. Tunks, [160] Tex. [182], 328 S.W.2d 434 * * *.”

In the majority opinion in the case of Crane v. Tunks, supra, the Court stated:

“Relators complain of the order of the respondent, Judge Tunks, requiring the 1950 income tax return to be delivered in its entirety to the respondent and his counsel for examination, inspection and copying or reproduction. We hold that under the facts of the present case, it was the duty of the trial judge to examine the income tax return sought by the applicant for the bill of discovery to ascertain what parts of it are material and relevant to the main cause, and so word this order as to require only such portion, or such portions to be delivered to respondent for his discovery. * * *
“In the main we think the court’s order for discovery was a correct one. Under the facts and circumstances of this case we do not hold that the trial judge abused his discretion in issuing his order of November 5, 1958. We do hold that the trial judge abused his discretion in ordering an inspection of Mrs. Crane’s 1950 income tax return in its entirety, and without the judge inspecting the return so as to determine what portions were relevant and material to this cause.”

The Relators in the Crane v. Tunks case did not contend that their income tax returns were privileged documents and not subject to a bill of discovery. Relators argued in their briefs in the Crane v. Tunks case that there was “respectable” authority in other jurisdictions to the effect that such returns are privileged and that their disclosure cannot be compelled. However, Relators made it clear that they were making no such extreme claim of privilege. On this point, Relators said:

“All that we maintain is that the party seeking to examine and copy such returns is still required to show that they contain evidence material and relevant to his pleaded cause of action before the Court is authorized to invade, as to (but only as to) the relevant and material portions thereof, the constitutional rights of privacy of the maker of the returns.”

The Court in the Crane v. Tunks case said that the “writ may issue in a proper case to correct a clear abuse of discretion.” There has been no showing of a clear abuse of discretion on the part of the trial court in the instant case. On the other hand, the trial court proceeded in accordance with the rule announced in both the majority and concurring opinions in the Crane v. Tunks case. The trial court in the instant case has deemed that all of the involved income tax returns are “relevant and material to the issues in the main cause.” The trial court in the instant case did precisely as this court directed the trial court to proceed in the Crane v. Tunks case. I agree with the Court here in its observation that “[t]he protection of privacy is of fundamental— indeed, of constitutional importance.” However, I maintain that the Relator’s right of privacy has been protected exactly in accordance with the standards set by this court in the Crane v. Tunks case.

According to the trial court’s judgment in the instant case, all of the requisites of a bill of discovery have been met This court apparently is basing its holding that the trial court abused its discretion on the theory that as a matter of law the portion of the income tax return which shows contributions, etc. could not possibly be material; and, therefore, the order of the trial court constitutes an invasion of privacy. The trial court has reached the opposite conclusion. This court has not examined the admissions, depositions, etc. We are not to speculate on what the facts might be, neither are we to determine fact issues. How can we substitute our views for those of the trial court? It is entirely possible that the contributions are highly material. Suppose for example, that the evidence would show that Relators unlawfully drained the corporation of as-' sets and showed in his income tax return such funds as personal contributions when, in fact, such contributions were the funds of the corporation. Marks sued for 3% of the net profits of the corporation during the period of employment. In this case, the trial court undoubtedly concluded that Marks might be materially injured if he were not permitted to ascertain the source of such contributions. This court has no power and never in the past has it exercised the power to limit the discretionary power of a trial judge on the ancillary proceedings for production of designated instruments.

Relator’s petition for writ of mandamus should be refused.

HAMILTON, J., joins in this dissent.

      . “There is respectable authority to the effect that such returns are privileged and their disclosure cannot be compelled. Peterson v. Peterson, 70 S.Dak. 885, 17 N.W.2d 920; O’Connell v. Olsen & Ugelstadt, (N.D.Ohio 1949), 10 F.R.D. 142; Loew’s, Inc. v. Martin, (N.D.Ohio 1949), 10 E.R.D. 143; Mattox [Maddox] v. Wright, 103 E.Supp. 400 (D.C.1952); United Motion Theater Co. v. Ealand, 199 E.2d 371 (6th Cir.1952). There is also authority to the contrary, particularly where the party whose returns are sought has in some manner put his income in issue. Connecticut Importing Co. v. Continental Distillers [Distilling] Corp., (D.Conn.1940), 1 E.R.D. 190; Reeves v. Pennsylvania R. R. Co., (D.Del.1948), 80 E.Supp. 107. The pertinent authorities, and the relevant considerations to be taken into account by the Courts in various fact situations are well set forth in a note in Vol. 18, p. 149 of the University of Pittsburgh Daw Review.”


source: Caselaw Access Project

author: NORVELL, Justice.

license: Public Domain

text:
    JEFFERSON COUNTY DRAINAGE DISTRICT NO. 6, Jefferson County, Texas, Relators, v. Honorable Gordon D. GARY, District Judge, et al., Respondents.
    No. A-9245.
    Supreme Court of Texas.
    Nov. 14, 1962.
    Rehearing Denied Dec. 19, 1962.
    J. B. Morris, Kenneth Hynes, W. G. Walley, Jr., Beaumont, for relators.
    Marcus & Weller, Keith, Mehaffy, Mc-Nicholas & Weber, Beaumont, for respondents.
   NORVELL, Justice.

On August 29, 1962 Jefferson County Drainage District No. 6, Jefferson County, Texas, instituted proceedings for the condemnation of an easement over certain lands situated within the boundaries of the district. Articles 3264 et seq., Vernon’s Ann. Tex.Civ.Stats. The special commissioners made their award and in order to secure possession of the easement sought to be condemned, the Drainage District deposited the amount of such award to the credit of the condemnees with the County Clerk of Jefferson County. Article 3268. This deposit was made on September 20, 1962 and shortly thereafter on September 25th, George A. Weller, H. L. Daugherty, Trustee, Patricia Eloise Pinchback Crosby and her husband, Jerry Crosby, instituted suit in the District Court of Jefferson County, Texas, 60th Judicial District, for an injunction restraining the Drainage District and its commissioners from taking possession of the property sought to be condemned. Weller and Daugherty, Trustee, asserted that they owned an interest in portions of the lands over which the District sought to condemn an easement and that they had not been made parties to the condemnation proceedings. (Patricia Eloise Pinchback Crosby and her husband were parties to the condemnation proceedings and asserted in the District Court an ownership interest in the - lands here involved). This suit was docketed as No. B-79,733, Weller et al. v. Norwood et al.

The Drainage District answered and while refusing to admit that the plaintiffs Weller et al. owned any interest in the lands involved, prayed that should it be found that such parties did have interests in such lands, that the same be condemned so as to validate the District’s asserted easement. The District then moved the Court to fix an amount of money to be deposited in the registry of the Court as security for the payment of such sums of money as might be assessed against the District because of the taking of plaintiffs’ lands.

The Honorable Gordon D. Gary, Judge of said 60th District Court, overruled the District’s motion and granted a temporary injunction restraining the Drainage District, its Commissioners and William K. Mason & Sons, Inc. (the District’s construction contractor) from entering upon the premises involved.

The District, its Commissioners and construction contractor (the defendants in the District Court) then filed their application for mandamus in this Court naming as respondents the Honorable Gordon D. Gary, Judge of the 60th District Court, and the plaintiffs in the District Court suit. They prayed that said District Judge be commanded to enter an order fixing the amount of security that in the judgment of the Court should be deposited to insure the payment of damages that might be awarded to respondents as plaintiffs in the District Court.

In our opinion the relators’ position is well taken.

Article 3269, as amended, reads as follows :

“When the State of Texas, or any county, incorporated city, or other political subdivision, having the right of eminent domain, or any person, corporation or association of persons, having such right, is a party, as plaintiff, defendant or intervenor, to any suit in a District Court, in this State, for property or for damages to property occupied by them or it for the purposes of which they or it have the right to exercise such power of eminent domain, or when a suit is brought for an injunction to prevent them or it from going upon such property or making use thereof for such purposes, the Court in which such suit is pending may determine the matters in dispute between the parties, including the condemnation of the property and assessment of damages therefor, upon petition of the plaintiff, cross-bill of the defendant or plea of intervention by the intervenor asking such remedy or relief; and such petition, cross-bill or plea of intervention asking such relief shall not be an admission of any adverse party’s title to such property; and in such event the condemnee may assert his or its claim to such property and ask in the alternative to condemn the same if he or it fails to establish such claim; and provided that, if in-junctive relief be sought, the Court may grant such relief under the Statutes and Rules of Equity, or may, as a prerequisite for denying such relief, require the party seeking condemnation to give such security as the Court may deem proper for the payment of any damages that may be assessed on such party’s pleading for condemnation.”

This Court construed and applied this article in City of Houston v. Adams, 154 Tex. 448, 279 S.W.2d 308 wherein the facts were similar to the case now before us. Mrs. Adams filed suit in the District Court and alleged that the City of Houston and Gulf Bitulithic Company were constructing a drain and storm sewer which would discharge an undue amount of water across a four-acre tract of land owned by her. She sought an injunction to prevent the threatened action. The City filed an answer and a cross-action seeking an adjudication of the existence of natural drainageway for the flowage of surface waters across Mrs. Adams’ property. The City also sought to condemn additional drainage rights across the property and moved to obtain immediate access to the property by depositing such security as the Court might require. As in the present case, the District Judge refused to fix the amount of security as requested by the City of Houston and left standing a temporary injunction theretofore issued against the City.

This Court held that the failure of the District Judge to comply with the directives contained in Article 3269 constituted an abuse of discretion and amounted to a violation of a clear duty enjoined by law. There being no adequate remedy by appeal, this Court directed that mandamus issue.

We can draw no valid distinction between the Adams case and the one now before us.

It is urged by respondents Weller et al. that the condemnation proceedings were irregular and void because of improper joinder of properties and parties and hence the District should be enjoined from taking possession of the disputed premises thereunder. This contention is largely immaterial to the issues of this case. The District here is seeking to obtain possession of or access to the property in dispute as against Weller et al. under the provisions of Article 3269 which is applicable to the District Court proceedings.

It is further urged that there is a defect in parties in the District Court suit in that all the owners of the lands sought to be subjected to this easement are not made parties to the suit. This would not render inapplicable the provisions of Article 3269 relating to the District’s posting of security in order to obtain possession against those, such as Weller et al., who are parties to the suit.

The facts of this case bring it within the terms of the statute. The condemning authority is entitled to demand that the statute be followed and the fact that the Drainage District could start all over again by instituting new condemnation proceedings with the County Judge does not constitute “an adequate remedy at law” nor preclude the District from insisting upon its statutory rights.

The respondent District Judge has filed an answer here in which he expresses doubts as to the propriety of the Drainage District’s proceeding in both the County Court and the District Court in connection with its obtaining the easements desired by it. This is a matter which may ultimately cause some concern to the Drainage District itself, but it is not the problem now before us. The respondents here as plaintiffs in the District Court have brought a suit for an injunction against a political subdivision of the State of Texas having the right of eminent domain to prevent it from going upon the property here involved. The Drainage District has asserted its right to condemn and requested that the District Judge proceed in accordance with the statute and set the amount of security to be deposited “for the payment of any damages that may be assessed” against the District. The District’s request complies literally with the statute and it is the ministerial duty of the District Court to comply therewith. Neither that Court nor this Court is justified in writing exceptions into the statute so as to make it inapplicable under special factual circumstances not mentioned in the statute. Brazos River Conservation and Reclamation District v. Costello, 135 Tex. 307, 143 S.W.2d 577, 130 A.L.R. 1220; Magee Heirs v. Slack, 152 Tex. 427, 258 S.W.2d 797; Coastal States Gas Producing Co. v. Miller, 160 Tex. 295, 329 S.W.2d 853.

In view of the District Judge’s answer herein and his statement that he will immediately comply with the directions of this Court, the writ need not actually issue. However, in the event of a failure to proceed in accordance with this opinion, the writ of mandamus will issue in the form prescribed in City of Houston v. Adams, 154 Tex. 448, 279 S.W.2d 308.

The writ of mandamus prayed for is conditionally granted.


author: WALKER, Justice.

text:
    Fred DENNIS et al., Petitioners, v. Dorothy HULSE, Respondent.
    No. A-9011.
    Supreme Court of Texas.
    Nov. 21, 1962.
    Rehearing Denied Dec. 19, 1962.
    Harkness & Friedman, Texarkana, for petitioners.

      Brown & Brown, Texarkana, for respondent.
   WALKER, Justice.

Fred Dennis et al, petitioners, brought this suit against Dorothy Hulse, respondent, to recover for personal injuries sustained by Dennis, his wife, and their minor child in an automobile collision. One of the ve-Tiicles was driven by Dennis, and respondent was the operator of the other. Respondent filed a cross-action against Den-mis. Petitioners’ total damages were affixed by the jury at $1,000.00, and judgment was rendered on the verdict in their favor for that amount. The Court of Civil Appeals reversed and remanded, because it concluded that respondent was probably prejudiced by the introduction of testimony indicating that respondent carried liability insurance •and by a subsequent instruction from the •court that she did not. Tex.Civ.App., 356 S.W.2d 203.

While Mrs. Dennis was on direct examination, counsel for petitioners inquired whether she had a conversation with respondent on the night of the accident and ■what the latter told her. The witness answered “Well, she told me — the first thing ■she said to me is, ‘You don’t need to worry. I am covered with insurance’.” Respondent immediately moved the court to discharge the jury and declare a mistrial. During the recess that followed, the court learned that respondent did not have liability insurance. The motion for a mistrial was denied, and over respondent’s objection the court instructed the jury that “all parties to this suit agree that there is no insurance of any type or character carried by Mrs. Hulse whereby anyone other than Mrs. Hulse would be liable for the amount or any amount which might be rendered against her as a result of the trial in this case. In plain English, there is no insurance in the case.”

We agree with the respondent that the mention of insurance by Mrs. Den-mis was improper, and that the trial court erred in instructing the jury that respondent had no liability coverage. According to the Annotation in 4 A.L.R.2d 761, the courts of other jurisdictions are not in agreement as to the propriety of permitting the defendant to establish that he is not insured after the introduction of evidence indicating that he is. That is not the problem here, and as pointed out in Gilmer v. Griffin, Tex.Civ.App., 265 S.W.2d 252, (wr. ref. n. r. e.), the question of whether or not the defendant is protected by liability insurance is wholly immaterial to any issue in a personal injury action of this nature. If anything is said from which the jury might reasonably infer that the defendant is insured, the court may either order a mistrial or instruct the jury not to consider the improper statement and then await the verdict before determining whether to grant a new trial. It should not, however, magnify the matter and perhaps lead the jurors to believe that insurance is a material consideration by advising them that the defendant does not have such protection.

Respondent argues that the mention of insurance always requires a reversal of the case, because the error is regarded as incurable. We do not agree. When the courts say that an error is incurable, they usually mean that instructions or other curative measures that might be attempted by either the court or counsel will not eliminate the danger of prejudice. Under our practice an appellate court is not authorized to reverse merely because the record discloses some error that is reasonably calculated to cause a miscarriage of justice. The party appealing must also show that it probably did cause the rendition of an improper judgment in the case. Rules 434 and 503, Texas Rules of Civil Procedure.

The matters about which respondent complains are not such as to constitute prima facie proof of probable harm. After the jurors were advised by the court that respondent had no liability insurance, it is not likely that they found against her on the liability issues or increased their appraisal of the damages in any mistaken belief that the judgment would be paid by an insurance company. Respondent argues that in view of the testimony of Mrs. Dennis, the instruction given by the court would: (1) cause the jury to question respondent’s veracity, and (2) prejudice the jury against her because she operated her automobile without insurance. She also points to the statement by the trial court that there is no insurance in the case, and says that this was calculated to injure her in the role of a cross-plaintiff.

Respondent has brought forward only the testimony of Mrs. Dennis, which contains very little information regarding the accident, and we do not have a complete statement of facts. If respondent’s theories of prejudice are sound, the harm which she suffered would probably be reflected in the answers of the jury when considered in the light of the evidence adduced at the trial. On the other hand, a complete statement of facts might show that she is legally responsible for the accident as a matter of law and that the jury was very conservative in assessing the damages. It is for this reason that an appellate court is required to consider the entire record, which ordinarily includes the state of the evidence, in determining whether to reverse a judgment because of some error committed in the course of the trial. See City of Galveston v. Hill, 151 Tex. 139, 246 S.W.2d 860; Walker v. Texas Employers’ Ins. Ass’n, 155 Tex. 617, 291 S.W.2d 298; Lumbermen’s Lloyds v. Loper, 153 Tex. 404, 269 S.W.2d 367. Without a statement of facts in this case, it cannot be said that the testimony of Mrs. Dennis and the subsequent instruction given by the court probably caused the rendition of an improper judgment. Respondent has not discharged her burden of showing prejudice, and the judgment of the trial court should not be disturbed.

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


text:
    Mary Lee HARVEY, by Next Friend, Petitioner, v. William SEALE, Respondent.
    No. A-8666.
    Supreme Court of Texas.
    Oct. 3, 1962.
    Rehearing Denied Dec. 19, 1962.

      Bill J. and Don Sanders, Carl Waldman, Beaumont, for petitioner.
    Orgain, Bell & Tucker, David J. Kreager, .Beaumont, with above firm, for respondent.
   WALKER, Justice.

Mary Lee Harvey, petitioner, was injured when she fell through a hole in the front porch of the home rented by her father from William Seale, respondent. This suit was brought by petitioner and her father against respondent to recover their ■ damages. The jury found that the accident was proximately caused by respondent’s negligent failure to repair the hole and by the father’s negligence in failing to cover the same. It refused to find that petitioner should have stayed away from the hole or that she failed to keep a proper lookout. Judgment was entered on the verdict that the father take nothing and that petitioner recover from respondent her damages in the amount fixed by the jury. The Court of Civil Appeals reversed and rendered in respondent’s favor, holding that petitioner was guilty of contributory negligence as a matter of law. 349 S.W.2d 292.

Petitioner was 9½ years of age and in the second grade at the time of the accident. She and her parents had lived in the home rented from respondent for approximately seven years. The floor of the front porch, which was about 9 feet long, 6 feet wide, and some 18 or 20 inches above the level of the ground, was covered with boards 4 inches in width. Parts of two boards became rotten and fell in about three weeks before the accident. This left a hole approximately 8 inches wide and 2 feet long near one end of the porch and at the side which adjoined the main structure of the house.

Petitioner’s parents warned her about the hole, explained the danger of falling into it, and told her not to play near the same. According to their testimony, she had the capacity to and did understand the danger. The accident occurred about three o’clock in the afternoon while petitioner was playing alone, running up and down the porch. She was facing the hole when she fell. There was nothing to prevent her seeing it, but she was not looking. She testified that the reason she fell was that she had forgotten about the hole while playing on the porch. Her father was present at the time but did not see her fall.

Respondent’s brief in the Court of Civil Appeals contains several points of error, any one of T^hich, if sustained, would require that the judgment of the trial court be reversed and rendered. Our views with respect to each of these contentions must be stated, because it is our opinion that the judgment of the trial court should be affirmed. The contributory negligence question will be considered after the other points of error presented to the intermediate court have been discussed.

Respondent contends that his covenant to repair upon demand did not give rise to any duty which can be made the basis of liability to petitioner, because it does not appear that personal injuries were within the contemplation of the parties when the agreement was made. The opinion in Ross v. Haner, Tex.Com.App., 258 S.W. 1036, lends support to this argument, but that case was decided at a time when most jurisdictions afforded no redress against a lessor for personal injuries caused by a defect in the leased premises which he was under a contractual duty to repair. See Annotation 8 A.L.R. 765. In recent years an increasing number of courts have held that tort liability may be predicated upon the lessor’s negligent failure to perform his covenant to repair after notice of a defect which renders use of the property in the manner contemplated by the lease unreasonably dangerous. See Annotations, 163 A.L.R. 300, 78 A.L.R.2d 1238; 32 Am.Jur. Landlord and Tenant § 724, p. 599. The latter view has been adopted by the Restatement and is now recognized as the law in Texas. See Restatement of the Law of Torts § 357; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114. The tort duty arises from the lessor’s ability to make repairs and his control over them, and it is not necessary for the plaintiff to establish that the covenant to repair was made for the purpose of preventing personal injury to the tenant or some member of his family.

It is also argued that petitioner assumed the risk, and that respondent owed her no duty, because the hole was an open and obvious condition which petitioner encountered with full knowledge of its existence and appreciation of the danger involved. Petitioner undoubtedly knew that the hole existed and realized that there was danger of injury if she stepped or fell into it. She did not, however, knowingly and intentionally subject herself to the danger as would have been the case if she had attempted to determine whether she could avoid the hole while walking across the porch with her eyes closed. The question is whether the defendant owed her any duty when she chose to remain within the area of danger while playing on the front porch.

Respondent relies on cases such as McElhenny v. Thielepape, 155 Tex. 319, 285 S.W.2d 940; Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; Marshall v. San Jacinto Bldg., Inc., Tex.Civ.App., 67 S.W.2d 372 (wr. ref.); Gonzalez v. Broussard, Tex.Civ.App., 274 S.W.2d 737 (wr. ref. n. r. e.) ; and Lederman v. Cunningham, Tex.Civ.App., 283 S.W.2d 108 (no. writ). These were suits by an invitee or licensee whose privilege to enter and remain on the premises was derived solely from the defendant’s consent. A landowner is not under an absolute duty to change his methods of operation, alter the condition of the premises, or make other special preparations for the safety of such a visitor. All the latter can expect is knowledge of actual conditions that will be encountered so he may determine whether to avail himself of the landowner’s consent. The duty of a landowner to his licensee or invitee is fully discharged then by a complete disclosure of the danger. And there is no duty whatsoever with respect to conditions that are so open and obvious, with the dangers therein so apparent, that the same are or should be known to and appreciated by the visitor. One who has no right to enter except by virtue of the landowner’s consent can remain off the premises if he does not wish to. subject himself to the risk of injury from such conditions. Where he has an opportunity to exercise an intelligent choice as. to whether the advantage to be gained by his entry is sufficient to justify his incurring-the risk, the landowner owes him no further duty of protection from harm. See Restatement of the Law of Torts §§ 340 to 343, inclusive, and comments thereunder. These principles are also applicable to an action by the employee of a subcontractor against the general contractor in control of the premises. McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391.

Here petitioner’s right to enter and remain on the premises does not arise from permission granted or an invitation extended by respondent. By virtue of her father’s lease, she was entitled to be on the front porch of her home without regard to respondent’s consent. Respondent was not privileged, therefore, to adopt a “take it or leave it” attitude, and his duty to petitioner was not fully discharged when she learned •of the danger. The negligent failure to repair the hole placed her in a position where she was compelled to choose between foregoing her legal right to play on the porch and encountering the risk involved in playing there. If her choice was unreasonable under the circumstances, she was guilty of contributory negligence, but respondent will not be heard to say that she voluntarily exposed herself to the danger, and that he owed her no duty with respect thereto, when she decided to play on the porch. See Restatement of the Law of Torts, § 893; Keeton, Personal Injuries Resulting from Open and Obvious Conditions, 100 Pennsylvania Law Review 629, 638; Harper and James, The Law of Torts, Vol. 2, § 21.1 et seq.; Prosser, The Law of Torts, 2nd ed. 1955, § 55 p. 312. This brings us to the contributory negligence question.

Petitioner had been warned of the danger and admits that she was not looking. Her only explanation is that she had forgotten about the hole. Some courts, particularly in the earlier cases, have held that anyone having knowledge of a dangerous condition must remember it at his peril in the absence of an emergency situation that distracts his attention. In the more recent decisions, however, a majority of the courts have taken the position that forgetfulnéss is not necessarily negligence but is merely one of the factors to be considered in determining whether reasonable care has been exercised. See Annotation, 74 A.L.R.2d 950; 38 Am. Jur. Negligence § 187, p. 863.

In Walgreen-Texas Co. v. Shivers, 137 Tex. 493, 154 S.W.2d 625, we pointed out that while momentary forgetfulness or inattention to a known danger may and usually does constitute contributory negligence, the rule is not an absolute one. There the plaintiff, a woman 66 years of age, fell to the floor and was injured while she was attempting to leave a counter where she had been seated at a stool placed on a raised platform. Although there was no emergency situation to distract her attention, it was held that her forgetfulness did not constitute contributory negligence as a matter of law. The circumstances mentioned in the opinion which were regarded as sufficient to excuse her inattention were the plaintiff’s age, her presence in a place of refreshment and relaxation, the fact that she had used the platform on only one previous occasion, and the probability that she was worried about her daughter’s condition.

A case involving facts more nearly analogous to those disclosed by the present record is Sullivan v. Trammell, Tex.Civ.App., 130 S.W.2d 310 (wr. dis. judg. cor.). The plaintiff, who was 11 years of age, was injured when she fell into a hole left by the defendants in the back yard of the premises where she lived with her grandparents. She was familiar with the hole but had forgotten about it. The accident occurred after sundown and before dark while the plaintiff was running to catch a ball thrown by her cousin. A divided Court of Civil Appeals refused to hold that she was guilty of contributory negligence as a matter of law, but the majority opinion indicates that some circumstances which the court regarded as material were not established by the evidence.

The Court of Civil Appeals in the present case cited Pollack v. Perry, Tex.Com.App., 235 S.W. 541, and Gonzalez v. Broussard, supra, in support of its conclusion that petitioner was contributorily negligent as a matter of law. As indicated above, the holding in the Gonzalez case is based on the proposition that the defendant owed his licensee no duty with respect to a danger known to and appreciated by the latter. Whether the plaintiff’s conduct amounted to contributory negligence as a matter of law was not considered or decided. The injured tenant in the Pollack case was an adult. In view of her failure to repair the visible defect in the floor, which she considered dangerous, or to use any substantial means to protect herself against stepping into it, and her failure to notice the place as she was walking across the room just prior to the accident, she was held to have been contributorily negligent as a matter of law.

Our problem would be quite different if petitioner were an adult or if she had been injured at a place where even an immature person would ordinarily be on the alert and mindful of danger. Here we are dealing with a child of nine who was injured while playing in the familiar and ordinarily safe surroundings of the home where she had lived with her parents almost all of her life. While a person of that age must exercise ordinary care for his own safety and may be guilty of contributory negligence as a matter of law, petitioner was not required to do more than might reasonably be expected of a child of her maturity and capacity. Although she knew that the hole was dangerous and that she would be injured if she fell into the same, it does not conclusively appear that she fully appreciated the risk involved in playing on the porch. Since the hole had been there for some three weeks, the impression made by the warnings of her parents may well have dimmed with the passage of time. It must also be remembered that young children are inclined to be heedless, and can become so preoccupied with their playing that they are inattentive and unobservant even in the presence of a known danger. Can it be said that a second grader of petitioner’sage and capacity in the exercise of ordinary care should have refrained from playing on-, the porch, or after having begun to play there should have avoided falling into the-hole ? The question is a close one, too close for us to say that reasonable minds could not differ as to its answer. Whether petitioner was negligent under all the circumstances was an issue of fact for the jury,, and the trial court properly rendered judgment on the verdict.

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


author: DICE, Commissioner.

text:
    Johnny Melvin CORK, Appellant, v. The STATE of Texas, Appellee.
    No. 35022.
    Court of Criminal Appeals of Texas.
    Nov. 28, 1962.

      Don M. Wilson, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve Guittard, Walton Bondies and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for contributing to the -delinquency of a minor; the punishment, ■confinement in jail for nine months.

Olen Dee Welk, the minor named in the information, a boy sixteen years of age, lived with his parents in the city of Mesquite. Appellant and his wife, Janie, also lived in the city.

The minor testified that on the night in question he went to the appellant’s residence around nine o’clock, p. m., where he was met at the door and admitted by appellant. At such time two men were in the house drinking beer. The men left around ten o’clock, p. m., and appellant then suggested that he take some photographs of the witness and appellant’s wife, Janie. They then went into the garage, where appellant took a photograph of the witness standing beside Janie; then they went into the kitchen, where a photograph was taken of the witness and Janie sitting on the floor with his arm around her; from the kitchen they went into the bedroom, where, at appellant’s suggestion, the witness and Janie sat on the bed. Janie took off her blouse and appellant took a picture of her and the witness sitting on the bed when she was clad only in her brassiere and underwear. She then took off her brassiere, and appellant took a picture of the witness holding her breast.

Later in the night Janie took off her clothes and appellant and the witness played with her private parts. Thereafter, all the parties undressed and were in the nude. Appellant proceeded to have sexual intercourse with his wife in the presence of the witness on two occasions. The prosecuting witness also had two acts of sexual intercourse with her. During the sex orgy, which ended at 3:30 o’clock, a. m., Janie committed several acts of oral sodomy upon the witness.

The proof shows that certain photographs were subsequently seized by the officers in a search of appellant’s residence under a search warrant. Three of the photographs were admitted in evidence as State’s Exhibits Nos. 1, 2, and 3, upon being identified by the minor as photographs taken by appellant of his wife and tne minor on the night in question.

Appellant did not testify and offered no evidence other than the testimony of one of the state’s witnesses whom he recalled for the purpose of cross-examination.

Appellant’s sole contention on appeal is that the court erred in admitting in evidence the three photographs identified by the prosecuting witness as having been taken by appellant, on the night in question, because the same was obtained as the result of an illegal search and seizure and under a search warrant which was apparently lost or misplaced and no proof was made by the state showing that it was regular on its face.

No objection was made by appellant on the grounds now urged to the introduction of the photographs in evidence. When the photographs were offered in evidence, appellant objected on the ground that the minor who identified the photographs was not an expert in photography, did not himself take the photographs, and could not identify the parties photographed, in State’s Exhibit No. 3.

Our scope of review is limited to the grounds urged by appellant in the objection which he made in the trial court. 42 Tex.Jur. 116, Sec. 85; Hunter v. State, 59 Tex.Cr.R. 439, 129 S.W. 125; and Salyer v. State, Tex.Cr.App., 342 S.W.2d 315.

Exhibits 1, 2, and 3 were identified by the prosecuting witness as photographs taken by appellant on the night in question, and the court did not err in admitting them in evidence.

Finding the evidence sufficient to sustain the conviction, the judgment is affirmed.

Opinion approved by the court.


text:
    Janie Dell CORK, Appellant, v. The STATE of Texas, Appellee.
    No. 35023.
    Court of Criminal Appeals of Texas.
    Nov. 28, 1962.
    Don M. Wilson, Dallas, for appellant.
    Henry Wade, Dist. Atty., Harold Adams, Walton Bondies and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for contributing to the-delinquency of a minor; the punishment,, one year in jail and a fine of $500.

This is a companion case to Cork v. State of Texas, Tex.Cr.App., 362 S.W.2d 314.

The prosecution in the two cases grew out of the same transaction and the facts, are substantially the same in each case.

As reflected in the opinion affirming the conviction of appellant’s husband, Johnny Melvin Cork, the facts show that on the night in question the minor, Olen Dee Welk, a boy sixteen years of age, went to the residence of appellant and her husband around 9 o’clock p. m. After he arrived, certain photographs were taken of the minor and the appellant by her husband. In one of the pictures the minor had his arm around appellant and in another he had his hand on her breast. After taking the photographs, appellant and her husband exhibited to the minor certain photographs of appellant in the nude, showing her sexual parts. After exhibiting the pictures, the three undressed and while in the nude engaged in numerous acts of sexual intercourse and sex deviation. During the sex orgy, which lasted until 3:30 o’clock, a. m., the appellant, on two occasions while engaged in an act of intercourse with her husband, committed an oral act of sodomy upon the minor.

Appellant’s sole complaint on appeal is to the admission in evidence of seven photographs which were subsequently seized by the officers in the search of appellant’s residence under a search warrant.

Three of the photographs (State’s Exhibits 1, 2, and 3) were identified by the minor as photographs taken of him and the appellant by appellant’s husband, on the night in question. Three other photographs (State’s Exhibits 4, S, and 6) were identified by the minor as certain lewd photographs of appellant which were shown to him by appellant and her husband on the occasion in question. The seventh photograph (State’s Exhibit 7) was a most lewd, indecent, and obscene picture of appellant in the nude, showing her sexual parts, which photograph was seized by the officers in the search of appellant’s residence.

Appellant insists that the search warrant was invalid because it was not issued for a purpose authorized by law; that it did not state the particular offense for which the implements were designed; that it authorized merely a search for evidentiary matter rather than implements of crime and the particular manner of acquisition of the property was not stated, as required by Art. 308, Vernon’s Ann.C.C.P.

The warrant, which authorized the search of appellant’s residence and seizure of certain lewd and indecent photographs alleged to be concealed therein, recited that complaint had been made by the affiants :

“ * * * alleging that on or about the 27th. day of August A.D., 1961 * * * Johnny Cork and Janey Cork did take or cause to be takened lewd and indecent photographs of Johnny Cork and Janey Cork and of another person who is known by the name of Olin Welk and is described as a white male age_ sixteen * * * And * * that the said property is now concealed by Johnny Cork and Janey Cork in a private dwellin— house situated in * * * which said Johnny Cork and Janey Cork occupier, possessor, control? and has charge of * * *.”

Art. 305, V.A.C.C.P., prescribes when a search warrant may issue, and in subdivision 1 provides that one may be issued:

“1. To discover property acquired by theft or in any other manner which makes its acquisition a penal offense.”
Art. 307, V.A.C.C.P., provides:
“The word ‘stolen,’ as used in this title, is intended to embrace also the acquisition of property by any means made penal by the law of the State.”

Art. 527, Vernon’s Ann.P.C., which relates to acts involving obscene articles, objects, and materials, reads in part as follows:

“Section 1. Whoever shall knowingly photograph, act in, pose for, model for, print, sell, offer for sale, give away, exhibit, televise, publish, or offer to publish, or have in his possession or under his control, or otherwise distribute, make, display, or exhibit any obscene book, magazine, story, pamphlet, paper, writing, card, advertisement, circular, print, pictures, photograph, motion picture film, image, cast, slide, figure, . instrument, statue, drawing, phonograph record, mechanical recording, o>r presentation, or other article which is obscene, shall be fined not more than One Thousand Dollars ($1,000) nor imprisoned more than one (1) year in the county jail or both.” (Emphasis supplied.)

Under this statute, Art. 527, supra, one who knowingly photographs, poses for, exhibits, or has in his posséssion or under his control an obscene picture or photograph is guilty of a penal offense.

The search warrant issued in the instant •case for the search and seizure of obscene photographs, alleged to have been taken by appellant and her husband and by them concealed, was authorized.

The affidavit and the warrant, as above set out, clearly state the offense for which the photographs were designed and the manner of their acquisition by appellant. The photographs seized by the officers in the instant case, in addition to their evidentiary value, were clearly shown to be usable by appellant in committing the offense charged and were admissible. Cagle v. State, 147 Tex.Cr.R. 354, 180 S.W.2d 928.

Appellant’s contention that State’s Exhibit No. 1 should not have been admitted because it was not lewd or indecent and therefore not subject to search and seizure under the search warrant is not before us for review, as appellant made no objection to the exhibit on such ground. Likewise, appellant’s contention that State’s Exhibit No. 7 should not have been admitted because it was not identified by the minor at the trial is not before us, as no such objection was made in the trial court to the exhibit.

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

Opinion approved .by the court.


author: McDonald, judge.

text:
    Raul BOTELLO, Appellant, v. The STATE of Texas, Appellee.
    No. 34749.
    Court of Criminal Appeals of Texas.
    Nov. 21, 1962.

      Johnson, Hester, Jenkins & Toscano, Harlingen, (On Appeal Only) for appellant.
    F. T. Graham, Dist. Atty., Brownville, Joel William Ellis, Asst. Dist. Atty., Har-lingen, Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The conviction is under Art. 725b, Vernon’s Ann.P.C., as a second offender, for the unlawful possession of a narcotic drug; the punishment, twenty years in the penitentiary.

The state’s evidence shows that on the day in question Customs Officers Donald J. Hauff and Steward Adams received information that the appellant was to take delivery of a quantity of marijuana near a cafe in the city of Harlingen. The information was received by them in the city of Brownsville during the afternoon. After receiving the information, they proceeded to Harlingen, traveling in different automobiles, where they contacted certain city officers. From the police station they drove to the vicinity of the cafe, in separate automobiles, being accompanied by city officers, Eastin, Parker, and Esparza. Shortly after the officers arrived in the vicinity, appellant was seen to get out of his automobile, go into a cafe, and, in approximately five minutes, return to the automobile and drive away. He was next seen in his automobile at a street intersection, where he was stopped by Officer Parker. At such time, appellant was alone in the automobile and when Officer Parker went to the driver’s side of the vehicle he observed a brown paper sack on the seat beside appellant. Officer Parker then asked appellant what it was and appellant replied, “It is a sack of marijuana. Here it is. I just got it.” Thereupon, appellant was placed under arrest and taken to the police station, where, after being duly warned, he signed a written confession in which he admitted possessing the paper sack lying beside him on the seat and also admitted that it contained marijuana. The paper sack was found to contain seventeen cartuchos, which is a term used among peddlers of marijuana for packages or rolls of marijuana. An examination of their contents by State Chemist Charles Smith, of the Department of Public Safety, disclosed that they contained 79.4 grams of marijuana.

Proof was made and appellant admitted that he had been convicted in the year 1959 in the 138th Judicial District Court of Cameron County of the offense of unlawfully possessing marijuana.

As a witness in his own behalf, appellant denied any knowledge of the presence of the marijuana in his automobile, repudiated his written confession, and testified that he signed the same under an agreement with the officers that it was a consent for the search of his residence without a warrant.

The court submitted to the jury the question as to whether appellant, after being duly warned, voluntarily and freely made and signed the written confession introduced in evidence by the state. By their verdict the jury resolved the disputed issues against appellant, and we find the evidence sufficient to sustain their verdict.

Appellant’s first contention is that the court committed reversible error in permitting Customs Officer Hauff to testify before the jury that on the day in question he had received information that the appellant was going to take the delivery of a quantity of marijuana near the Montalvo Cafe in Harlingen, over appellant’s objection that the same was hearsay.

While such type of hearsay evidence, although admissible before the court upon the issue of probable cause, should not be admitted before the jury, its admission in the instant case does not present reversible error.

After such testimony was elicited from the witness over appellant’s objection, similar testimony was later elicited from other "witnesses by the state, without objection from appellant, and appellant also brought •out similar evidence in his cross-examination of other witnesses.

Under such record, no reversible error is shown. Watson v. State, 161 Tex.Cr.R. 5, 273 S.W.2d 879; Andrews v. State, 161 Tex.Cr.R. 550, 279 S.W.2d 331; Davis v. State, Tex.Cr.App., 330 S.W.2d 443; Beck v. State, Tex.Cr.App., 360 S.W.2d 410.

It is next contended that the court ■erred in permitting the state to bring out •and prove on cross-examination of appellant the details of two prior offenses committed by him, by showing that in connection with a narcotics conviction in federal court in 1953, he received punishment of a $100 fine and in the 1959 narcotics conviction in state court alleged for enhancement, he received the minimum punishment of two years, of which he was required to ■serve only fourteen months.

No objection was made by appellant to the testimony on the grounds now urged. While proof of the details of prior ■offenses committed by an accused is not permissible, we do not consider the inquiry made of appellant with reference to the punishment assessed in the two prior convictions and the time he served in the penitentiary as constituting proof of the ■details of the offenses committed. Furthermore, similar testimony was admitted without objection with reference to appellant’s receiving a minimum sentence of two years in the 1959 conviction and having served the same in fourteen months. No reversible error may be predicated upon admitting proof of the 1953 conviction, as similar evidence was admitted without objection.

Nor do we find any error in the court’s action in permitting the state to inquire of appellant on cross-examination with reference to trouble which the officers testified they had had with him on a prior occasion when he had fought and knocked one of them down. Appellant, in his cross-examination of Officer Hauff, had elicited from the witness testmony to the effect that he (appellant) had knocked an officer down the last time the officers tried to arrest him.

Other contentions urged by appellant have been considered and do not present reversible error.

The judgment is affirmed.


author: MORRISON, Judge. WOODLEY, Presiding Judge

text:
    Prisciliano R. CASTILLO, Appellant, v. The STATE of Texas, Appellee.
    No. 34759.
    Court of Criminal Appeals of Texas.
    Oct. 31, 1962.
    Rehearing Denied Dec. 12, 1962.

      Murray J. Howze, Monahans, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment, 10 years.

Officer Titus testified that, in response to a call, he went to a house on East Ninth Street in the city of Pecos on the night in question and there saw a woman lying in the front yard and observed a gun wound in her lower back. Within a few minutes, a pickup truck came to a stop nearby, and the occupant started walking toward the spot where he and his fellow officer were standing near the woman; that he instructed the man to stand back but the man said, “No, I am the one” or “I am the one that did it,” and he then recognized that it was appellant, whom they placed under arrest, and recovered a .22 rifle from the pickup. His testimony was corroborated by officer Morgan, who also testified that deceased was dead by the time he left the scene.

Appellant’s confession recounts the tragic but often heard experience of a sixty-year old man whose wife had died some years before and who fell in love with a bar maid, with a history of four marriages, and began to support her. When some time later he refused to pay off the equity on her house, all the demons of Hell erupted, and he left. Characteristically, but unwisely, he would not leave well enough alone and again began to pay court to the woman from whom he should have learned a lesson. On the night of the homicide, he went to a cafe where deceased apparently was employed, and the manager told him that deceased did not want to talk to him. This was the straw that overloaded the wagon; he went and got his .22, waited at the woman’s house until she came home at 3:00 o’clock in the morning and shot her in the back as she was running away from him.

Appellant called a number of reputation witnesses and his two married daughters, who testified that appellant had acted peculiarity since he began associating with deceased, and that, particularly shortly before the homicide, he appeared to be nervous and did not pay attention to them when they talked to him. Appellant’s testimony in his own behalf tracked the confession except that he said he was emotionally upset over the way deceased had treated him, had drunk a few beers, and did not remember some occurrences of the fatal night. On cross-examination, the following occurred:

“Q. How many times did you shoot?
“A. You mean- her? •
“Q. Yes.
“A. Once.
“Q. Just once. You remember that, ' don’t you?
“A. I remember the one shot.”

The court charged fully on the issue of insanity.

Appellant presents two contentions on appeal. During the trial, it was stipulated between appellant and the State that the deceased' “is dead, that she died on the night of August the 13th of 1961 as the result of gunshot wounds.” It is now asserted- that this stipulation was not broad enough to connect appellant with the firing of the gun which caused the fatal wound. In Fancher v. State, 167 Tex.Cr.R. 269, 319 S.W.2d 707, we said:

“Appellant testified as a witness in his own behalf that the automobile belonged to him. By that testimony he supplied a -very material element of the . corroboration necessary. • . (
“The rule as to corroboration of extrajudicial ■ Confessions does not apply 'to a judicial confession, which is one made in the course of a judicial pro- • ceedihg -while testifying as- -a witness. Martin v. State, 109 Tex.Cr.R. 101, 3 S.W.2d 90.”

During the course of the closing argument, the prosecutor told the jury:

“Now, tonight, we are going to set a price on Life in Reeves County, Texas. And you are going to do it. It is up to you. Set it at whatever you want to. But to me, and to the people of Reeves County, it ought to be at least Life, Death or a long term of years.”

Following this, the jury were retired, and then appellant’s counsel “excepted” to “counsel’s closing argument about setting the price on Life in Reeves County,” as well as the prosecutor’s mention of the death penalty. That portion of the argument set forth above in appellant’s exception was clearly a plea for law enforcement, Scarborough v. State, Tex.Cr.App., 344 S.W.2d 886, but even if it were not, or if other portions of the argument were improper, reversible error would not be reflected because the objection came too late. Northcutt v. State, 154 Tex.Cr.R. 600, 229 S.W.2d 373, and Smith v. State, 157 Tex. Cr.R. 21, 246 S.W.2d 187, hold that an objection made after the jury has retired does not preserve the error, if any, in the prosecutor’s argument.

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

WOODLEY, Presiding Judge

(concurring)-

I concur in the conclusion that the ‘ evidence is sufficient to sustain the conviction, and the holding that reversible error is not shown in the argument of the District Attorney.


author: BELCHER, Commissioner. WOODLEY, Presiding Judge. MORRISON, Judge

text:
    Alvis Jean HENDERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 34801.
    Court of Criminal Appeals of Texas.
    Oct. 3, 1962.
    Rehearing Denied Nov. 21, 1962.
    Second Motion for Rehearing Denied Dec. 12, 1962

      Orville A. Harlan, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Walter A. Carr and I. D. McMaster, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for shoplifting, under Art. 1436e, Vernon’s Ann.P.C.; the punishment, three days in-jail and a fine of $25.

No statement of facts accompanies the record.

Appellant contends that the trial court erred in refusing to quash the information on the ground that Art. 1436e, supra, is unconstitutional because it does not contain the element of want of consent, or the words “steal” or “stolen”, which are essential to make the act charged a violation of the penal law. Appellant further contends that said statute is so indefinite, vague, and uncertain that it is wholly inoperative.'

The portion of the statute applicable in this case makes any invitee or licensee who removes certain property from its place, while such person is legally in a retail business establishment, with the intent to fraudulently take and deprive the owner of its value and appropriate it to his own use, guilty of the offense which is designated by the statute as shoplifting.

From the statute, it is evident that the legislature intended to create and make it an offense for any person by his own act and his own intent, not those of the owner, to obtain certain property by the means and in the manner therein set forth. It is concluded that the provisions of the statute under consideration are, within themselves, sufficiently definite and certain to apprise any person of the nature and character of the act denounced, and said statute makes such act a penal offense. Being drawn in the language of the statute, the information is valid.

The motion to quash the information was properly overruled.

The judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

Appellant challenges our holding that the provisions of Art. 1436e Vernon’s Ann.P.C. are sufficiently definite and certain to define the offense of shoplifting. It is contended that such holding is diametrically opposed to the holding of this Court in Musick v. State, 121 Tex.Cr.R. 616, 51 S.W.2d 715, and that if the affirmance herein stands, Musick v. State should be expressly overruled.

As pointed out by appellant, Musick v. State was cited in the recent case of McCann v. State, 168 Tex.Cr.R. 383, 328 S.W.2d 298, and more recently in Benedict v. State, Tex.Crim.App., 361 S.W.2d 373. In the latter case the majority opinion on rehearing distinguished Musick v. State while the concurring opinion expressed the belief that it should be overruled.

We believe that the Musick case can be distinguished here.

In the first place, both Art. 1426a V.A. P.C., which was before the Court in the Musick case, and Art. 1436e, the statute here under attack, were enacted subsequent to the 1925 codification of the Penal Code of this State, and there is nothing in either act to show that the legislature chose or directed that either of such statutes should become a part of Title 17, Chapter 8, rather than some other Title or Chapter of the Penal Code.

In Musick v. State the offense charged was misdemeanor theft. The trial court in his charge treated the information as charging the offense defined in Art. 1426a V.A.P.C. and the jury assessed a punishment provided in that Article, which punishment was in excess of that provided for misdemeanor theft. Reversal was ordered because a punishment in excess of that authorized for the offense charged was assessed.

This Court held that Art. 1426a “does not denounce the offense of theft. Neither in the name of the offense nor in its elements can the statute be identified as one under which a prosecution for theft can be maintained.”

The statute before the Court in Musick’s case provided a punishment for the fraudulent taking of cotton or cotton seed. This Court, after finding that it was not a theft statute and that the essential element of the “want of consent” was not supplied by the use of the word “fraudulently”, said:

“There are many ways in which property may be fraudulently taken, and the mere statement that the taking of the property was fraudulent, accompanied by no details as to the manner of the taking, is regarded as too indefinite to come within the requirement of the law and the Constitution.”

Art. 1436e V.A.P.C., here under attack, is not lacking in details as to the elements of the offense defined. It applies only to persons who are legally in a retail business establishment as an invitee or licensee. It declares that any such person is guilty of shoplifting if he “ * * * removes from its place, goods, edible meat or other corporeal personal property of any kind or character under the value of Fifty Dollars ($50.00) kept, stored or displayed for sale with the intent to fraudulently take and to deprive the owner of the value of the same and to appropriate the same to the use and benefit of the person taking * * * »

It will thus be seen that the statute found to be indefinite in Musick v. State merely provided that it was unlawful to fraudulently take cotton or cotton seed, whereas Art. 1436e V.A.P.C., which defines the offense of shoplifting, is violated only when property under the value of $50, kept, stored or displayed for sale, is removed from its place in a retail business establishment by some person who is legally in such establishment as an invitee or licensee, and is removed by such a person with the intent to fraudulently take and to deprive the owner of its value and to appropriate it to his own use and benefit.

We remain convinced that appellant’s attack upon the constitutionality of Art. 1436e V.A.P.C. was properly disposed of on original submission.

Appellant’s motion for rehearing is overruled.

MORRISON, Judge

(concurring).

My views on this question are expressed in my concurring opinion in Benedict, supra. I remain of the same opinion.


text:
    T. G. HOLLOWAY, Appellant, v. The STATE of Texas, Appellee.
    No. 34812.
    Court of Criminal Appeals of Texas.
    Oct. 31, 1962.
    Rehearing Denied Dec. 12, 1962.
    David D. Adams, Snyder, for appellant.
    Leon B. Douglas, State’s Atty., Austin, Wayland G. Holt, Dist. Atty., Snyder, for the State.
   McDonald, judge.

The offense is theft of property over the value of $50; the punishment, two years in the state penitentiary.

The state’s evidence shows that on February 20, 1960, the appellant purchased a tractor from Bruce Evans, an employee of Snyder Truck & Tractor Co., for an agreed price of $300, which was its market value. He paid for it with a check in that amount, which he signed in the presence of the witness, Bruce Evans, on that date, and the appellant picked up the tractor. The check was returned unpaid by the drawee bank and although notice of such non-payment was given to appellant, no part of the purchase money was ever paid. The court charged the jury under the provisions of and in the language of the second mode set out in Art. 1413, P. C., and the jury found the appellant guilty of theft.

Appellant presents three points of alleged error to this court. His first complaint is that the state did not prove presentment of the check to the drawee bank. Appellant cites- authorities therefor, with which authorities we are not in disagreement. The cases cited by appellant pertain to prosecutions for swindling by the use of a worthless check, in which it is necessary to prove presentment as it is required by statute.

In this case, however, the state relied on and the court charged on theft, contained in the second count of the indictment. Art. 1549, P. C., allows the state to elect between a prosecution for swindling or some other offense, where the facts support either offense. Gibbs v. State, 158 Tex.Cr.R. 145, 253 S.W.2d 1002; Richardson v. State, Tex.Cr.App., 332 S.W.2d 736.

This court affirmed the conviction for theft by false pretext in Westover v. State, 167 Tex.Cr.R. 589, 322 S.W.2d 279, where the check was returned unpaid to the injured party but no showing of presentment was made.

Appellant’s second complaint is that the court allowed the state to introduce evidence of offenses other than the one charged in the indictment. The court did allow such evidence and properly limited its purpose to intent or system, in paragraph 5 of the court’s charge to the jury. Proof of such other offenses is admissible to show intent, system, motive, or plan. Clay v. State, Tex.Cr.App., 346 S.W.2d 128. We observe that appellant’s counsel adduced testimony from the state’s witness, Evans, showing prior transactions with appellant in which checks were given Evans by appellant, and they were always paid. When appellant “opened the door” to show good checks taken, the state could in turn show “bad checks” given by appellant. No error is shown.

We find no merit in appellant’s other contention. We find the evidence sufficient to support the jury’s verdict.

Appellant’s able court-appointed counsel is commended for his efforts in behalf of appellant.

The judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    James A. MAXWELL, Appellant, v. The STATE of Texas, Appellee.
    No. 34778.
    Court of Criminal Appeals of Texas.
    Oct. 31, 1962.
    Rehearing Denied Dec. 12, 1962.

      Moisés V. Vela, Harlingen, Hector Yznaga, Brownsville, for appellant.
    F. T. Graham, Dist.. Atty., Brownsville, Joel William Ellis, Asst. Dist. Atty., Har-lingen, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is rape by force; the punishment, 25 years.

Appellant’s able counsel correctly states the case as follows: “On the evening of the 11th day of July, 1961, a young girl by the name of Gloria Martinez was acting as baby sitter for the children of a woman by the name of Grace Hinkle. Grace Hinkle owned a trailer house in the City of Har-lingen, Texas, where she lived with her two children. It was at this trailer house that Gloria Martinez was discharging her duties as baby sitter. At approximately 10 o’clock P.M. on July 11, 1961, a man came to the trailer house and after a brief conversation raped and beat Gloria Martinez. Appellant was arrested shortly after midnight on July 12, 1961, and charged with the rape of Gloria Martinez.”

Whether the state proved that appellant was the man who ravished the girl, as found by the jury, is the main question presented by the appeal.

Gloria testified that she was 14 years old; that she lived in Mexico and was in the sixth grade. She identified the appellant as the man who came to the trailer house about 10 o’clock P.M.; came into the bedroom where she was lying down, grabbed her by the neck and- put a hand over her mouth as she was trying to scream, then struck her more than once with something heavy, she thought with an iron.

She testified that after appellant hit her on the head she was unconscious, but remembered that she scratched him. (There was evidence that appellant’s arm was scratched and that what appeared to be flesh was found in scrapings from the girl’s fingernails.)

When she regained consciousness she was still lying on the bed. Her panties had been removed and seminal stains were found on the bed sheet. Examination of the girl at the hospital revealed tears in the vagina, bleeding moderately, as well as finger marks on the throat and lacerations on the head “right down to the skull”.

Appellant suggests that conceivably someone else could have entered the trailer house and committed the rape, even though appellant assaulted the girl with the iron. We do not find this a reasonable outstanding hypothesis which would render the circumstantial evidence against appellant insufficient.

Appellant’s brief presents several claims of error.

The first relates to the testimony of the prosecutrix as to how the appellant looked when he was brought before her at the hospital and identified by her. She was asked: “Can you describe how he looked that morning in the hospital?” to which she replied: “He did not want to look at me. He just turned * * * his head. He didn’t want to see me.”

No error is shown in the overruling of appellant’s objection to the question as to whether the witness could describe the appearance of the appellant.

As to the answer given by the witness, that the appellant did not want to look at her, appellant objected that such was conclusion, but made no effort to have the answer withdrawn. See Fletcher v. State, 164 Tex.Cr.R. 321, 298 S.W.2d 581; Christesson v. State, Tex.Cr.App., 353 S.W.2d 218; 13 Tex.Dig., Criminal Law—1044.

Appellant presents as error calling for reversal what he refers to as “a consistent reference by the District Attorney to the appellant’s marital status.”

Evidence was admitted without objection to the effect that appellant was a married man. Being in evidence, we are aware of no rule ■ prohibiting' reference thereto by the District Attorney. Also, we find no bill of exception, formal or informal, in the record complaining of the conduct of the District Attorney in this regard.

Appellant next claims error because the prosecuting witness was permitted to exhibit scars on her head “where he hit you with the iron”.

Appellant was charged with an assault as well as .with rape. The prosecutrix testified that she was rendered unconscious by the blow upon her head, and because of her inability to testify as to what occurred following the infliction of such wounds the state was required to rely upon circumstantial evidence. The appellant did not testify.

The court’s charge required the jury to find, in order to convict, that the girl was ravished by the appellant by the use of force.. The state’s proof of force included the blows upon her head with an iron, which rendered her unable to resist. The nature and seriousness of the injuries were admissible as a part of the state’s case.

Louks v. State, 148 Tex.Cr.R. 107, 185 S.W.2d 109, is authority for our holding that no reversible error is shown on this point.

For like reason, no error is shown in the admission of the testimony of Dr. Dyo as to the lacerations on the head of the prosecutrix.

There was testimony from which the jury could have concluded that appellant was drunk and was at another place at the time the girl was ravished.

The issues raised were submitted to the jury in a charge to which there were no objections. The jury resolved the issues against appellant and found him guilty of rape by force, and we find the evidence sufficient to sustain their verdict

The judgment is affirmed.


author: MORRISON, Judge.

text:
    John BOYKIN, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 35053.
    Court of Criminal Appeals of Texas.
    Nov. 28, 1962.

      Tom Sanders, Joe J. Newman, Houston, fur appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and I. D. McMaster, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is carrying a pistol, as a second offender; the punishment, six months in jail.

The witness Tucker testified that on the night in question appellant cut his automobile in front of the one the witness was driving; that when the two automobiles came to a halt at a hamburger stand appellant stepped out, approached the witness’s automobile, pointed a pistol at him and threatened to kill him. He stated that he hurriedly left the stand, called the police and accompanied them to appellant’s home; that as they arrived appellant was “backing up on the sidewalk in his automobile,” and that the officers recovered the pistol from inside appellant’s automobile.

Officer Collins testified that he and his partner Defoor accompanied Tucker to appellant’s home and, when they arrived, he observed appellant’s automobile “had just pulled up on the yard,” that his partner Defoor searched the same and recovered the pistol in question.

The prior conviction was established.

Appellant and his wife testified that there had been no display of a pistol at the hamburger stand and that the pistol which the officers found had just been handed to him* by his mother after he drove up into the-yard. His mother corroborated the latter-portion of his testimony.

The jury accepted the State’s version of the affair, and we find the evidence sufficient to support the conviction.

The sole question presented for review is the alleged illegality of the search of appellant’s automobile. During the course of the testimony of officers Collins and De-foor, objections were made to their testimony concerning the finding of the pistol but, when the pistol itself was offered in evidence while officer Collins was testifying, the sole objection was as follows: “Your honor, we are going to object to this officer — I think it is admissible from the other witness, but not from this one.” Clearly, this objection did not raise the question now urged in this Court. We had a similar situation before this Court recently in Killingsworth v. State, 165 Tex.Cr.R. 286, 306 S.W.2d 715, and there we said:

“Numerous objections appear in the record to the testimony relative to the search of the automobile and of the finding of heroin therein. We need not pass upon these objections for the reason that they were waived by the appellant when the heroin was introduced in evidence without objections. Wyatt v. State, [162] Tex.Cr.App. [134], 282 S.W.2d 392 and Outley v. State, [1623 Tex.Cr.App. [314], 284 S.W.2d 356.”

While it is true that at the conclusion of Collins’ testimony appellant did ask that the evidence concerning the finding of the pistol be withdrawn, there was no request that the pistol itself be stricken as evidence.

Having failed to properly object to the fruits of the search, appellant must be held to have waived any question thereto.

Finding no reversible error, the judgment of the trial court is affirmed.


text:
    Lawrence Paul DAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 35045.
    Court of Criminal Appeals of Texas.
    Nov. 28, 1962.
    Appellant represented himself.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is robbery by assault; the punishment, fifteen years’ confinement in the penitentiary.

This is a companion case to Bridges V. State, Tex.Cr.App., 362 S.W.2d 336. Since the facts are substantially the same, we shall here pretermit a detailed discussion and adopt the facts as detailed in Bridges, supra, in the interest of brevity and to portray the entire testimony.

In addition to the facts in the Bridges case, Lofton Frasier testified that he lived in Gorman and worked at a hardware store; that he stopped by the Eison store to buy a package of cigarettes; that appellant was standing there; that he had never seen appellant before; that about an hour later he heard that the store had been robbed,; that he saw appellant pull “a stocking off of his head.”

Appellant’s confession recited that he and James Bridges were in DeLeon at Bridges’ house; that he (appellant) had borrowed á pistol; that they went to Gorman to get some beer; that they drove around, talking about robbing some place; that they went to a grocery store; that Bridges said there was usually $200 in cash at the store; that they were in Bridges’ blue and white Mercury car; that Bridges was driving; that he (appellant) got out and put a stocking over his face and went in and “told the woman” he “wanted the money”; that before he left, a man came in and he (appellant) pulled the .stocking off his fac.e and put the gun in his pocket; that after the man left he got the money and left .the store; that “James drove off going through some feed place-and [they] took the long way home to DeLeon”; that there they got their wives ' “and ' went to Strawn and Mingus.”

The appellant adduced no testimony.

There are no formal or informal bills of exception.

Appellant has filed a brief in his own behalf, asserting several “points of appeal,” none of which have support in the record.

The appellant’s confession, coupled with evidence showing the commission of the crime, is sufficient. The injured párty established the corpus delicti when she testified that she was robbed, that she was placed in fear of her life, and that a gun was used. Watson v. State, 154 Tex.Cr.R. 438, 227 S.W.2d 559; Lyles v. State, Tex.Cr. App., 351 S.W.2d 886; Estes v. State, 160 Tex.Cr.R. 632, 274 S.W.2d 411.

We think the evidence is abundantly sufficient to not only corroborate the confession but also to support the jury’s verdict.

The judgment is affirmed.