author: RUSSELL, Judge.

text:
    Tilton RYE, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Sept. 30, 1975.
    Certiorari Denied by Supreme Court Dec. 5, 1975.
    Allen W. Wallace, Waverly, and Wm. D. Howell, Dover (on trial), Dale M. Quillen, Nashville (on appeal), for plaintiff in error.
    R. A. Ashley, Atty. Gen., David L. Ray-bin, Asst. Atty. Gen., W. B. Lockert, Jr., Dist. Atty. Gen., Ashland City, J. Kenneth Atkins, Erin, Asst. Dist. Atty. Gen., for defendant in error.
   RUSSELL, Judge.

OPINION

Tilton Rye appeals in error his convictions in the Circuit Court of Houston County for murder in the first degree and two charges of assault with the intent to commit same. Punishment was set at life imprisonment for the murder, and sentences concurrent therewith of six (6) to ten (10) years fixed for each felonious assault. Rye shot to death his wife’s father, and shot his wife and her mother.

The tragic events commenced when Rye became angry with his wife because she would not ride in his automobile with him. When Mrs. Rye left a trout farm where the parties were, driving Rye’s car, he pursued her in another car. After several attempts by Rye to halt the car driven by his wife, he managed, on one occasion to stop it and tear open a car window. Mrs. Rye and her daughter were able to flee. They drove around the Courthouse several times looking for the sheriff. They then drove to the home of her parents. Plaintiff-in-error followed, and under the State’s proof after Mrs. Rye had stopped the car in the driveway he pulled a window out of the car and reached under the seat and obtained a pistol. His wife left the car and ran toward the house. Her father, Mr. Charles F. Kent, Sr., came out of the house and Rye fired three shots at him. Rye struck his wife and her mother, and then threw the latter up against the wall of the house. He chased the two women into a bedroom, where he shot and beat his wife over the head with the pistol. The women managed to barricade themselves in another bedroom. Rye went outside and reloaded his pistol, at this time also hitting his daughter, Cynthia.

The women obtained a pistol and fired a shot through the door, hoping to scare Rye away. He nevertheless broke open the door, shot his wife in the left hip and her mother in the elbow. He was beating his wife over the head with the pistol when her mother managed to hit him over the head with her pistol and at this point the women managed to escape and Rye got into his car and left.

Rye testified upon his trial that he was shot in the head when he arrived at the Kent house and remembered nothing thereafter.

It is contended upon this appeal that the evidence was insufficient to support first degree murder or assault to commit same. It is said that the evidence is conflicting and that the actions of Rye did not reflect the coolness of purpose necessary to first degree murder.

The jury has resolved the evidence conflicts, and there appears to be no reasonable doubt that Rye committed murder and felonious assaults. There is strong evidence that his intention to shoot his_ wife was preconceived. He had a loaded pistol in his car, and became incensed when she wouldn’t leave the trout farm with him in that car. His subsequent acts all reflected his purpose to get the gun from the car and shoot her. The jury was justified in finding that his reason was not overcome by passion. That he was filled with malice and anger is obvious; but there is more than sufficient evidence to support the State’s position that murder was premeditated and that Rye was capable of premeditation. The assignment of error testing the sufficiency of the evidence is overruled.

Error is assigned upon the District Attorney General’s closing jury argument. It is said that Rye “was prejudiced by the District Attorney General’s argument, which was calculated to inflame the minds of the jurors.”

We would observe at the outset that defense counsel, by his own admission, deliberately made no contemporaneous objection to any of the argument. What he chose to do was to wait until all argument was over, ask that the jury be sent out, and move for a mistrial.

Our eases hold that objections to improper jury argument must be made at the time. Hunter v. State, 222 Tenn. 672, 440 S.W.2d 1 (1969); White v. State, 210 Tenn. 78, 356 S.W.2d 411 (1962). In Turner v. State, 188 Tenn. 312, 219 S.W.2d 188, it was said:

“It is thoroughly settled, under our practice, that objectionable argument or improper remarks of counsel afford no ground for a new trial, where no objection is made or exception taken at the time of the argument, (citing cases).”

There are many good reasons for this rule. Among others, the trial judge can often effectively instruct the jury to disregard improper argument; counsel can be held within permissible limits before going so far as to commit harmful error; and, of course, defense counsel may be of the opinion that facially illegal argument is in a given instance more helpful than harmful to his client and deliberately waive any objection.

Often intemperate argument is brought on by the excesses in argument of the other side. Here, we do not have the argument of defense counsel in the bill of exceptions.

We are not impressed by the contention that prosecution argument “was prejudicial”. It is not the fact that it hurts that is controlling. Legal and proper argument is often very prejudicial.

The question to be determined when an objection to argument is interposed is whether or not the argument is proper. The standards for making this judgment are not always easy to apply. It is only after argument is determined to be improper that its possible prejudicial effect must be judged. Our Supreme Court has said, in the case of Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758 (1965):

“[3,4] The argument and conduct of counsel has been discussed by this Court in a number of cases. They are found in Volume 7, Tennessee Digest, Criminal Law, 699-730. The general test to be applied is whether the improper conduct could have affected the verdict to the prejudice of the defendant. * * * ”

On the question of what argument is proper, the following language may be found in the case of Smith v. State, 205 Tenn. 502, 327 S.W.2d 308 (1959):

“(33) The full argument of the District Attorney General as was made to the jury is contained in one small volume among the volumes of this record. The plaintiffs in error complain as to portions of this argument. They assign it as error wherein the District Attorney General argued that if they found the plaintiffs in error not guilty and turned them loose that'they would be branding a woman witness who testified against one of them as a whore. This is not error because that is exactly what the plaintiffs in error attempted to do in their testimony about this woman. There is certainly ample proof in the record, what the plaintiffs in error said themselves, that entitled this to be argued and answered by the District Attorney General. Complaint is also made along this line that the District Attorney General argued in effect and contended in his argument that the plaintiffs in error were criminals and gangsters. This argument was warranted by the evidence, if for nothing more was warranted under the voluntary statement made by the plaintiff in error Smith that he had been so branded over a period of time. Arguments of the kind were not prejudicial or intemperate but were warranted from the facts and circumstances of the case. When such is true certainly the District Attorney General cannot be censured for arguing the facts as he saw them.”

In the case under consideration certainly a strong argument was made by the prosecuting attorney. At one point he referred defense arguments as “a bunch of crap.” He compared the death of Mr. Kent to the killing of Christ. He made the point that Mr. Kent was retired. He criticized plaintiff-in-error for drinking beer on Sunday and not going to church. He said that he didn’t guess that Rye went into military service, saying, “I’m sure they would have brought it out if he did”. At one point he apparently misquoted the testimony of a witness.

The learned and experienced trial judge specially charged the jury:

“I have been asked to charge you and I do charge you that in the final argument the District Attorney referred to testimony on one witness for defendant, Tommy Turner, as saying that defendant said, ‘Don’t let them shoot me’, when in fact the witness testified the defendant said, ‘Don’t shoot me’.
“The argument of the District Attorney or any other attorney is not to be weighed as evidence, but you are to weigh only evidence you heard testified to in the trial of this cause, and give it such weight as you feel necessary.”

He had already charged the jury:

“Both the defendant and the State are entitled to your calm, unbiased judgement upon the truth of the charges in the indictments.
“The object of this investigation is to find the truth and act accordingly.
“You can have no sympathy or prejudice in any criminal case, but will decide the case solely and alone upon the facts as shown in the proof and upon the law given you in charge.”

We hold that it was not error to refuse to grant a mistrial because of the argument of the District Attorney General, in the total context of this case. It was not contemporaneously objected to, was only partially improper, and the trial judge’s charge directed the jury as to what they should properly consider. Rye’s guilt is clear, and his punishment could have been much more severe. No prejudice from any improper argument is discernable.

The next plaint of Rye is that the trial judge should have charged as per Chapter 163 of the Public Acts of 1973, now codified in T.C.A. § 40-2707, and dealing with parole eligibility. After the jury had deliberated for a time they inquired of the trial judge as to the real meaning of a life sentence. At that time the trial judge offered to charge the jury pursuant to the mandate of T.C.A. § 40-2707, but defense counsel explicitly refused to agree that he do so. (Counsel disagrees that they “objected to” such a charge, but agree that they expressly would not agree to its being given.) It is readily understandable that competent defense counsel might prefer that this statute not be followed and the charge explaining parole eligibility given. Where this preference is expressed and honored, as here an assignment of error predicated upon the judge’s failure to so charge is without merit.

Finally, it is claimed that the jury in fact considered parole eligibility. Apparently affidavits from some jurors were taken on this point, but they are not in the record. No witnesses on the question were heard during the hearing upon the motion for a new trial, and no finding of fact was made by the trial judge. The assignment is overruled.

The convictions are affirmed.

WALKER, P. J., and DUNCAN, J., concur.


source: Caselaw Access Project

author: GALBREATH, Judge.

license: Public Domain

text:
    John Edward McFADDEN, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Nov. 25, 1975.
    Certiorari Denied by Supreme Court Dec. 30, 1975.

      Hughie Ragan, Jackson, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, for defendant-in-error.
   OPINION

GALBREATH, Judge.

This is an appeal from the dismissal by the Lauderdale Circuit Court of a declaratory judgment suit by plaintiff in error contending, in effect, that he is being deprived by respondents of his timely right to be considered by the Board of Pardons and Paroles for early release from confinement resulting from a 40 year sentence imposed July 6, 1963, for armed robbery. We treat the action as one seeking relief through habeas corpus.

The petitioner seeks construction of the statutes governing computation of parole eligibility. The two statutes directly involved are T.C.A. § 40-3612 and 40-3613, which are as follows:

“40-3612. Eligibility for parole. — Every person sentenced to an indeterminate sentence and confined in a state prison, when he has served a period of time equal to the minimum sentence imposed by the court for the crime of which he was convicted, shall be subject to the jurisdiction of the board. The time of his release shall be discretionary with the board, but no such person shall be released until he has served such minimum sentence nor until he shall have served one (1) year.
Every person sentenced to a determinate sentence and confined in a state prison, when he has served a period of time equal to one-half (½) of the sentence imposed by the court for the crime for which he was convicted, but in no event less than one (1) year, shall likewise be subject to parole in the same manner provided for those sentenced to an indeterminate sentence. . . .”
“40-3613. Power to parole. — The board of pardons and paroles shall have power to cause to be released on parole any person sentenced to confinement in the penitentiary who has served the minimum term provided by law for the offense committed by him, less good time;

Petitioner contends that the proper calculation for arriving at the earliest eligibility date for his parole would be to take the one half sentence of the determinate sentence and subtract the good and honor time built to arrive at the eligibility date. Thus, the minimum time he claims should have been served prior to his becoming eligible for consideration by the Parole Board would be one half of forty, or twenty years, less credit for good and honor time calculated on this period. (In this case, such a calculation would have made possible his meeting the Board in 1973).

The State contends that the methods of computing parole eligibility dates differ between determinate and indeterminate sentences with indeterminate sentences treated as specified by petitioner and determinate sentences regulated solely by the one half provision of T.C.A. § 40-3612. This question has not been ruled on before and would undoubtedly affect a great many convicts.

Petitioner contends that the language referring to those with determinate sentences, i. e., “shall likewise be subject to parole in the same manner provided for those sentenced to an indeterminate sentence”, supports his contention that the good and honor credits should be subtracted from this created minimum, and that to compute otherwise would be violative of his right to equal protection. We do not agree.

Determinate sentences are meted out only for the more serious crimes, while indeterminate sentences are the result of lesser offenses, and this distinction supports a differing treatment of the two in computing parole eligibility. It is our view that reference to the “same manner” in T.C.A. § 40-3612 refers merely to similar conditions and supervision as found in other statutes, such as the terms that may be imposed on parolees under the provisions of T.C.A. § 40-3614.

Our holding here is in line with the procedure for computing parole eligibility as set out in the proposed criminal code submitted to the legislature but not yet adopted. In the submitted draft this question is more clearly spelled out by specifically providing that in the case of a determinate sentence “credit for good conduct shall not reduce the parole eligibility date.” Thus, the proposed code would preserve what is practiced under present law and what we now hold.

We, accordingly, reject the petitioner’s position which, in effect, would make every determinate sentence an indeterminate one, and affirm the trial court.

DWYER and O’BRIEN, JJ., concur.


author: DOUGHTY, Justice.

text:
    George W. KELLEY, Petitioner, v. Roy RINKLE, Respondent.
    No. B-5494.
    Supreme Court of Texas.
    Jan. 21, 1976.
    Rehearing Denied Feb. 25, 1976.
    McMullen & Snyder, Stephen C. Porter and Waylon E. McMullen, Dallas, for petitioner.
    Coke & Coke, Robert M. Roller, Dallas, for respondent.
   DOUGHTY, Justice.

George W. Kelley, petitioner, sued Roy Rinkle, respondent, for damages caused by Rinkle’s filing of a report with Credit Bureau Services, Inc., which report stated that Kelley owed Rinkle $277.00 for medical and dental services rendered by Rinkle. Kelley alleged that the report was false and libelous and that Kelley did not owe Rinkle any money. The trial court granted Rinkle’s motion for summary judgment on the ground that Kelley’s suit was filed more than one year after his cause of action accrued and was therefore barred by the statute of limitations. Tex.Rev.Civ.Stat. Ann. art. 5524 (1958). The Court of Civil Appeals has affirmed. 524 S.W.2d 806. We reverse the judgment and remand the cause to the trial court for a trial on the merits.

The proof submitted on summary judgment, construed in the light most favorable to petitioner, establishes the following facts: on March 13, 1973, Rinkle submitted a “Voluntary Report” to Credit Bureau Services, Inc., a credit agency to which Rin-kle was a subscriber, stating that George W. Kelley owed $277.00 to Rinkle on an account which was past due. Merle Young, an employee of Credit Bureau Services, states in her affidavit that this is the only report ever furnished by Rinkle on Kelley. In Kelley’sjtffidavit he states that he had no knowledge of the existence of the report until August 29, 1973. Prior to that date and beginñiñg-dúnng the months of April and May of 1973, Kelley states that he received several letters from various businesses to which he had applied for credit, informing him that he could not receive credit “based upon information which those business firms had received from Credit Bureau Services . . . .” On August 29, 1973, Kelley went to Credit Bureau Services in order to discover the nature of the information which they had supplied to the businesses denying him credit; there he first learned of the report filed by Rinkle. Personnel at Credit Bureau Services also told him that the first request for information about his credit status was from Atlantic Richfield in April of 1973. Attached to Kelley’s affidavit are two letters to Kelley, Q^one from Phillips Petroleum Company dated April 30, 1973, and one from Woolf Brothers dated May 2,1973, each informing Kelley that credit had been denied him based in part on information obtained from J&i Credit Bureau Services. Kelley filed this su^ a£a'nst i^kle on March 26,1974, seek--sH' ing $5,000.00 in actual damages plus exemplary damages and attorney’s fees.

Tex.Rev.Civ.Stat.Ann. art. 5524 (1958) provides:

There shall be commenced and prosecuted within one year after the cause of action shall have accrued, and not afterward, all actions or suits in courts of the following description:
(1) Actions for malicious prosecution or for injuries done to the character or reputation of another by libel or slander. * * *

The question presented is: when did Kelley’s cause of action accrue?

Assuming that the report is libelous, as we must for purposes of summary judgment, it must have been “published” in order for petitioner to have a cause of action for resulting damages. “Publication” is a word of art; it is defined in the Restatement, Torts § 577 (1938) as “communication intentionally or by a negligent act to one other than the person defamed.” Thus, there was a publication of the report when respondent gave TTfoUrecfit^Bureau Services on March 13, 1973. Respondent contends that petitioner’s cause of action accrued on this date and was barred by limitations one year thereafter.

Petitioner urges us to adopt the “discovery rule” in this case, whereby ⅞⅛ statute of limitations does not begin to run until the injured party learns of, or in the exercise of reasonable diligence should have learned of, the injury or wrong giving rise to the cause of_action. Texas decisions have adopted the discovery rule in limited types of cases: causes of action for fraud; actions for damage to plaintiff’s land from water seepage: and, more recently, in certain malpractice cases. For a more complete discussion of the extent to which Texas has adopted the discovery rule, see Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967). In Gaddis, this Court held that, in a suit for damages caused by the negligence of a surgeon in leaving a foreign object in the body of his patient, the statute of limitations begins to run when the patient learns or should have learned of the presence of the foreign object. In Hays v. Hall, 488 S.W.2d 412 (Tex.1972), we held that, in malpractice cases arising from negligence of a physician in performing a vasectomy operation, the statute of limitations runs from the date that the facts concerning the failure of the operation were or, should have been discovered.

The reasons stated in the.Gaddis and Hays opinions for adopting the discovery rule in those situations are peculiarly applicable to the present case. A person will not ordinarily have any’ reason" "to suspect that hehas been defamed by the publication of a false credit report to a credit agency until he makes application for credit to a concern , which avails itself of the information furnished by the credit agency. Thus, in many cases the injured party may not learn of the existence of the libelous report until several months after its publication to the credit agency. Considering the<^rélatively shorty period of limitation for libel actions; the occasion mav often arise when the injured party cannot learn of the existence of his cause of action before the statutory limitation period lias expired.

Weighing against the above considerations is the policy behind statutes of limitation^ to compel the assertion of claims within_a..reasonable period, while the wit-<ngsse§iand evidenciare still available. This policy is ^specially applfcabje to defamation actions because of the intangible nature of the evidence and of the injury itself.

We have carefully considered these. opposing- policy considerations ancThave concluded that' the discovery rule" "should apply_in_this case. It is a rare individual in modern society who does not rely upon credit in the transactions of his personal and business affairs. While the pervasive use of credit reporting .agencies makes acquisition of credit much easier and more efficient, it also creates a potential for great abuse by those who would use the system to wrongfully injure the credit reputation of another. We believe that a rule by which limitations would commence from the date of the wrongdoer’s report to the credit agency would merely enhance that potential. We therefore hold that the period of limitations for causes of action for libel of one’s credit reputation by publication of a defamatory report to a credit agency begins to run when the person defamed learns of, or should by reasonable diligence have learned of, the existence of the credit report. We would not apply the discovery rule where the defamation is made a matter of public knowledge through such agencies as newspapers or television •broadcasts.

Since the summary judgment proof does not show as a matter of law that petitioner knew or should have known of the existence of the credit report more than one year before petitioner’s suit was filed, the trial court’s summary judgment for respondent was improper. Our conclusion makes it unnecessary for us to consider petitioner’s other points of error.

The judgment of the Court of Civil Appeals is reversed, and the cause is remanded to the trial court for further proceedings in accordance with this opinion.

      . We note here that the limitation provision of the Fair Credit Reporting Act, 15 U.S. C.A. § 1681p (1974), which provides a two-year limitation period for actions to enforce liabilities created by the Act, has no application to this case. The two-year limitation provision of § 1681p applies only to suits against a “consumer reporting agency,” as defined in the Act, or suits against a “user of information” furnished by such an agency, for willful or negligent failure to comply with any requirement imposed by the Act. §§ 1681n, 1681o.

      . The Supreme Court of Illinois has recently adopted the discovery rule for libel actions, under circumstances very similar to those before us here, in Tom Olesker’s Exciting World of Fashion v. Dun and Bradstreet, 61 Ill.2d 129, 334 N.E.2d 160 (1975).


author: REAVLEY, Justice.

text:
    COASTAL INDUSTRIAL WATER AUTHORITY, Petitioner, v. W. D. YORK et al., Respondents.
    No. B-5256.
    Supreme Court of Texas.
    Jan. 28, 1976.
    Rehearing Denied Feb. 25, 1976.

      Jonathan Day, City Atty., Fred Spence and Clifton E. Speir, Asst. City Attys., Houston, for petitioner.

      Liddell, Sapp, Zivley & Brown, John C. Nabors and Christopher B. Allen, Houston, for respondents.
   REAVLEY, Justice.

The question here is the ownership of riparian land which has subsided or sunk slowly beneath the water level of the Houston Ship Channel. Coastal Industrial Water Authority sought in a related action to condemn land owned by W. D. York et al., and a dispute arose as to whether the condemnor was required to take and pay for 3.353 acres which on the date of taking was submerged on the fringe of the Ship Channel. The condemnation suit was stayed until the title question could be resolved. York et al. then filed this declaratory judgment suit in district court to resolve the question of the line between public and private ownership. The trial court entered judgment which upheld York’s claim to ownership to the 3.353 acres as of the date of taking. The Court of Civil Appeals agreed (520 S.W.2d 494), and so do we.

The material facts are not in dispute. York’s land lies near the San Jacinto Monument in an area where the land surface has been slowly subsiding during the last several decades. The precipitating cause of this subsidence is the removal of enormous amounts of underground water for purposes of industrial and municipal use. As the water is removed the sub-surface pressure is reduced, which causes layers of inelastic clay to compact. The result is the loss in surface elevation. As the land subsides, adjacent waters encroach upon and submerge the land.

Land in the immediate area of the York tract has subsided some nine feet in the past seventy years. See generally, Steel-hammer & Garland: Subsidence Resulting From The Removal of Ground Waters, 12 So.Tex.L.J. 201 (1971). The water of the Houston Ship Channel moved upon this particular tract for a number of years prior to 1950, but our interest begins as of that year when a survey showed 28.083 acres standing above the water level. In 1961 a survey revealed that there was then 26.44 acres above thé water level. At the time of the taking by the condemnor, Coastal Industrial Water Authority, on August 4, 1970, there was only 24.73 acres above the water level. It is the position of Coastal that York then owned only the dry 24.73 acres, while York contends that he and the other plaintiffs owned and were entitled to be compensated for the entire 28.083 acres originally conveyed to them.

The Houston Ship Channel is a navigable stream. Its bed was owned by the State but relinquished to the City of Houston as the result of Article 7467a, Vernon’s Ann. Civ.St. The testimony of the surveyor witnesses indicates that the level of the water upon the York land does not fluctuate with the ebb and flow of the tide, and we will assume that the tide has no effect at this point.

It might be expected that part or all of the 3.353 acres in controversy would have been washed by the current of the water until the soil eroded and passed away so as to leave this three acre area indistinct from the bed of the ship channel. If that were the case, ownership would have been lost to the riparian owner (York et al.) and passed to the City of Houston under the authorities to be discussed. As this case is presented to us, however, there has been no displacement of the submerged land in relation to the bed of the ship channel. York and the 1970 surveyor both testified that the 3.353 acres was covered by only shallow water. The Court of Civil Appeals applied a rule in favor of York which assumes the identification of the boundaries of the 28.-083 acres. Coastal has not contested this issue; it claims no erosion of the shelf which has subsided slightly below water level. We therefore assume that the 3.353 acres has subsided beneath the water level but that there has been no erosion of that submerged 3.353 acres.

The general rule is that a riparian or littoral owner acquires or loses title to the land gradually or imperceptibly added or taken to or from his fast bank or shore. Erosion is the process of wearing away the land. Accretion is the process of gradual enlargement of the fast land. Giles v. Basore, 154 Tex. 366, 278 S.W.2d 830 (1955); State v. Balli, 144 Tex. 195, 190 S.W.2d 71 (1944); Lakefront Trust, Inc. v. City of Port Arthur, 505 S.W.2d 606 (Tex.Civ.App.1974, writ ref’d n. r. e.).

A different rule is usually applied in case of the sudden removal or deposit of land, the rapid or perceptible change being .termed avulsion. It is often held that title does not pass by avulsion. City of New York v. Realty Assoc., 256 N.Y. 217, 176 N.E. 171 (1931) (where storms tore away a large tract and after submergence under the ocean for 30 years, it was held that the riparian owner retained title); City of Chicago v. Ward, 169 Ill. 392, 48 N.E. 927 (1897) (where land torn away and submerged by waters of Lake Michigan was successfully reclaimed by riparian owner); Schwartzstein v. B. B. Bathing Park, 203 App.Div. 700, 197 N.Y.S. 490 (1922) (since the change in the shoreline was sudden and not gradual, the ownership boundary did not change); 5A Thompson on Real Property (Grimes ed. 1957) § 2561; see, Maufrais v. State, 142 Tex. 559, 180 S.W.2d 144 (1944); Denny v. Cotton, 3 Tex.Civ.App. 634, 22 S.W. 122 (1893, writ ref d), 60 Tex.Jur.2d Waters § 296. A sudden change in the course of a river will result in a change of ownership of the old and new beds but not in the upland between the old and new courses. Manry v. Robison, 122 Tex. 213, 56 S.W.2d 438 (1932); Maufrais v. State, supra.

There is some dispute between the parties as to the significance of the artificial or man-made cause (i. e. the withdrawal of underground water) of the subsidence. We place no significance upon the relation between artificial and natural causes of this phenomenon. A riparian or littoral owner may not acquire title to submerged land through self-help by filling and raising the land level (Lorino v. Crawford Packing Co., 142 Tex. 51, 175 S.W.2d 410 [1943]); however, there is no reason to apply a different rule for the effects of subsidence simply because of the activities of cities and industries over which these landowners have no control. See generally: Bonnelli Cattle Co. v. Arizona, 414 U.S. 313, 94 S.Ct. 517, 38 L.Ed.2d 526 (1973); Dinkins, Texas Seashore Boundary Law: The Effect of Natural and Artificial Modifications, 10 Houston L.Rev. 43 (1972); 78 Am.Jur.2d Waters § 410; 5A Thompson on Real Property (Grimes ed. 1957) § 2560, p. 605; Annot., 63 A.L.R.3d 249 (1975).

Our immediate question is not whether a riparian owner may acquire ownership of additional land but whether the submergence of land to which he has title necessarily divests him of that title.. There have been eases approving private ownership of soil beneath navigable water. State v. Lain, 162 Tex. 549, 349 S.W.2d 579 (1961); State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065 (1932); State v. Aransas Dock & Channel Co., 365 S.W.2d 220 (Tex.Civ.App.1963, writ ref d); City of Galveston v. Menard, 23 Tex. 349 (1859). It should be noted that the Court in City of Galveston v. Menard distinguished between property under navigable waters which should be reserved for public use and other property under those waters in which the public use and enjoyment “may be promoted and increased, by allowing portions of it to become private property.” 23 Tex. 393.

Two court of civil appeals decisions have sustained continued private ownership of land despite its submergence under waters of bays of the Gulf. In Fitzgerald v. Boyles, 66 S.W.2d 347 (Tex.Civ.App.1933, writ dism’d) the court wrote:

[I]f the land in controversy was west of the shoreland of Galveston Bay when the Hunter grant was originally surveyed and located, the grantee and those holding under him have not lost title to the land by the encroachment thereover of the waters of the bay, and whenever the land so submerged, either by natural causes or lawful artificial means, was restored to its original condition, the right to its possession and occupancy by the holders of the original title became paramount. 66 S.W.2d 349.

In Fisher v. Barber, 21 S.W.2d 569 (Tex.Civ.App.1929, no writ) the court upheld plaintiff’s title to land submerged by the water flowing from Trinity Bay. Neither of these two opinions (Fitzgerald v. Boyles and Fisher v. Barber) discuss the gradualness or suddenness of the changes that led to submergence of the land, nor do they indicate that the avulsion rule had any bearing upon the holdings. The Fitzgerald opinion mentions the occurrence of storms over a period of fifty to sixty years, and the Fisher opinion recites that the land was opened to the tidewaters by the digging of a channel. Neither court ascribes significance to these facts.

It is usually held that the title to land is not changed by its being submerged beneath a lake, even though the public has rights in and upon the navigable waters of the lake. Schulte v. Warren, 218 Ill. 108, 75 N.E. 783 (1905); Tapoco, Inc. v. Peterson, 213 Tenn. 335, 373 S.W.2d 605 (1963); State v. West Tennessee Land Co., 127 Tenn. 575, 158 S.W. 746 (1913). The Illinois court in Schulte v. Warren based its holding upon the fact of avulsive or sudden flooding, but the rule or fact of avulsion was not mentioned by the Tennessee courts. The court simply stated in State v. West Tennessee Land Co.:

It would seem, on principle, that the title to the land would be unaffected by the formation of the lake, and its owners would be entitled to its use and its enjoyment as long as they can reasonably identify it and fix its boundaries. 158 S.W. 752.

A case of this type was decided by the Supreme Court of Texas in Diversion Lake Club v. Heath, 126 Tex. 129, 86 S.W.2d 441 (1935). A dam was constructed upon a navigable stream, and the controversy ensued over the right of the public to fish in the lake that was created. While applying the civil law rule that beds of navigable streams are publicly owned and holding, accordingly, that the public enjoys the right to fish in all navigable water (contrary to the common law rule), the court said that the bed of the lake, apart from the bed where the river had flowed, was privately owned. No mention was made of the rule of avulsion.

We reaffirm the rules with respect to property loss and gain due to erosion and accretion. It is clear from the cases, however, that submergence does not necessarily destroy the title of the owner. It is sometimes said that there must be a “transportation of the land beyond the owner’s boundary to effect that result.” 5A Thompson on Real Property (Grimes ed. 1957) § 2562. There has been no erosion or transportation of the York land — only a subsidence. This is not an ordinary hazard of riparian ownership; it is not the result of the force of the waters which takes from some owners and gives to others. So long as the general public or a public body has not come to use the site for navigation, thereby raising a conflict between private and public interests which does not exist in the present case, it is consistent with the interests of all to permit the riparian owner to protect his land — rather than to watch helplessly as his boundary retreats. We hold that title to the 3.353 acres remained in York et al. on the date of the taking in 1970.

The judgments below are affirmed.

DANIEL, J., concurs in the result of this opinion.

      . York’s tract lies at the confluence of the San Jacinto River and the Houston Ship Channel (known also as Buffalo Bayou). There is a statement volunteered by one of the witnesses indicating that the site is reached by the Gulf tide. Indeed, it may be that subsidence may pose no boundary problem for navigable streams above sea level. The Court of Civil Appeals opinion states that the question in this case concerns title to land bounded by water “within tide water limits.” 520 S.W.2d 499. The parties have not, at any point in this litigation, made any reference to the fact or legal effect of the tide. For this reason the Court’s opinion is restricted to the issues presented by the peculiar facts of this record and the contentions of these parties. The writer of this opinion, speaking personally, chooses to emphasize the narrowness of the holding and to warn against any misinterpretation of its effect upon the boundary of private ownership to lands within reach of the tide. There may be cases where the private development and use of land will require a holding that the ownership is not changed by submergence under tidewater due to subsidence. There may be cases where public rights are not prejudiced by permitting title to remain unchanged until the private owner has a reasonable opportunity to reclaim his land from the sea. However, the rule of Luttes v. State, 159 Tex. 500, 324 S.W.2d 167 (1958) stands. I doubt that a court would accept a rule that located the boundary of private ownership at the Luttes line as of the time when non-avulsive subsidence commenced. That rule would allow private owners generally to hold title to land under the sea, would restrict the enjoyment of public beaches, and would make the location of seaward boundaries an exercise of pure guesswork.


author: SAM D. JOHNSON, Justice.

text:
    Mr. and Mrs. William STEPHENSON et al., Petitioners, v. Mr. and Mrs. Werner J. PERLITZ, Respondents.
    No. B-5484.
    Supreme Court of Texas.
    Feb. 4, 1976.
    Brown, Maroney, Rose, Baker & Barber, Charlie D. Dye and Scott R. Kidd, Austin, for petitioner.
    Watkins, Ledbetter, Hayden & Ramsey, Thomas H. Watkins, Austin, for respondent.
   SAM D. JOHNSON, Justice.

Petitioners Mr. & Mrs. William Stephenson, et al., as lot owners in the Edgemont subdivision in the City of Austin, instituted this suit seeking a permanent injunction against respondents Mr. & Mrs. Werner J. Perlitz to prevent them from constructing a duplex which, according to their contention, violated a one-residence restrictive covenant which was common to all of the parties’ deeds. The trial court granted a temporary restraining order and, after notice and hearing, a temporary injunction. Following a trial on the merits the trial court denied the permanent injunction. The court of civil appeals affirmed with one justice dissenting. 524 S.W.2d 786. We reverse.

Petitioners, Mr. & Mrs. William Stephenson and Mr. & Mrs. Sanford Newman, are home owners in the Edgemont subdivision in the City of Austin which contains one hundred three lots. The Newmans have resided on their property since 1960 and the Stephensons have resided on their property since 1970. Respondents, Mr. & Mrs. Per-litz, purchased a vacant lot in the Edgem-ont subdivision in 1973 with knowledge of the restrictive covenant. The pertinent restrictive covenant which is common to each of Edgemont subdivision deeds is as follows:

“All improvements to be erected upon the premises hereby conveyed shall be built and used for residence purposes, excepting such improvements as may be proper for use in connection with residences.
“Only one residence shall be erected upon the premises hereby conveyed and if two stories or more, shall be of the original cost of not less than $6,000.00 and if less than two stories shall be of the original cost of not less than $2,500.00.” [Emphasis added.]

Shortly after Mr. & Mrs. Perlitz purchased their lot they began the construction of a duplex thereon. Upon learning that a duplex was to be built on the lot, the petitioners promptly filed the instant suit. At the time of institution of this suit only the initial work on the foundation had been completed, but the slab had not been poured. The trial court prohibited further construction by granting a temporary restraining order which was continued as a temporary injunction. The application for a permanent injunction was tried to the court which, upon hearing, dissolved the temporary injunction and denied the permanent injunction.

The court of civil appeals affirmed with one justice dissenting. The majority opinion of the court of civil appeals did not find it necessary to consider what it characterized as “subsidiary points,” dealing with waiver of the right to enforce the restriction and change of conditions. The court relied on MacDonald v. Painter, 441 S.W.2d 179 (Tex.1969), in holding as a matter of law that the deed restriction in issue does not prohibit the construction of a duplex. The majority opinion states (524 S.W.2d 786 at 789), “[t]he opinion in MacDonald v. Painter, supra, controlled the action of the trial court; and, the same opinion dictates an affirmation of the judgment denying the permanent injunction.”

In MacDonald v. Painter, supra, the restriction provided:

“ . . . it being understood that all improvements to be erected on said premises shall be built and used for residence purposes only, excepting such improvements as may be proper for use in connection with a residence.” [Emphasis added.] 441 S.W.2d 179 at 180.

We think it apparent that the MacDonald restriction is distinguishable from the restriction in issue in the instant case. In MacDonald the restriction used the word “residence” as an adjective and the phrase “for residence purposes only” referred to the type of use or mode of occupancy permitted on the property. This was made clear when this court wrote (page 182):

“ ‘Restrictions which, without more, merely limit the use of the property to “residence” purposes have generally been held not to have the effect of forbidding the erection or maintenance of multiple dwellings, the courts taking the view that such terms were directed only at the type of use to be made of the property, and not at the number of families which might make such use.’ Annotation, 14 A.L.R.2d 1381.
“The terms, ‘residence purposes,’ and ‘residences’ require the use of property for living purposes as distinguished from uses for business or commercial purposes. . According to most authorities, the terms, without other limiting words, do not prohibit duplex living units.” [Emphasis added.]

The MacDonald court selectively chose its language, including the italicized words “without more” and “without other limiting words” even as if anticipating the restrictive covenant with which we are presently confronted. In the instant case the restriction contains other limiting words. While the first paragraph contains “residence purposes” language, the second paragraph adds that “[o]nly one residence shall be erected upon the premises hereby conveyed . ..” It is in the wording of the second paragraph of the restriction that we find the critical difference between the instant case and MacDonald v. Painter, supra. A restriction that property is for residence purposes is quite different from a restriction which additionally provides that only one residence may be erected on the property.

The ordinary and commonly accepted meaning of the phrase “only one residence” per lot is that there shall be no more than one single-family dwelling place on each lot. We believe that this meaning comports with the understanding and intention of the parties. We note, however, that courts in some states have reached a contrary conclusion. Bear v. Bernstein, 251 Ala. 230, 36 So.2d 483, 14 A.L.R.2d 1372 (1948); Hamm v. Wilson, 169 Ga. 570, 151 S.E. 11 (1929); Bruno v. Hanna, 63 N.J.Super. 282, 164 A.2d 647 (1960); Houk v. Ross, 34 Ohio St.2d 77, 296 N.E.2d 266 (1973). These decisions have rested on the premise that the term “one residence” is ambiguous and may be broad enough to encompass duplexes and apartments. In view of the ambiguity found in the term “one residence,” the courts applied the rule of construction that adopts the meaning which least restricts the free use of the land. In Houk v. Ross, supra, the Supreme Court of Ohio held:

“In view of this long-standing rule of construction, this court is bound to interpret the restriction in question in that manner which least restricts the free use of the land. . . . [W]e hold, therefore, that the clause, ‘that not more than one residence shall be built upon any of said tracts,’ only prohibits the construction of more than one residence building on any of said tracts of land, and does not prohibit the construction of a multiple-family dwelling. If it had been the intent of the sellers to limit construction to single-family residences or dwellings, that restriction should have been specifically stated.” 296 N.E.2d 266 at 275.

We decline to follow the decisions holding that the term “one residence” is ambiguous. The Texas courts long ago eliminated any uncertainty about the meaning of the term “one residence” in the case of Green v. Gerner, 283 S.W. 615 (Tex.Civ.App.— Galveston 1926), aff’d, 289 S.W. 999 (Tex.Com.App.1927). Green v. Gerner, relied upon by the dissenting opinion in the court of civil appeals, construed a restriction which provided:

“The property herein conveyed is sold for residence purposes only, and no building other than one residence with the necessary and appurtenant out buildings and improvements shall occupy the lots herein sold, and said improvements shall cost not less than $6,000.” [Emphasis added.] 283 S.W. 615 at 616.

In Green the defendants, who sought to construct an eight-unit apartment house, contended that the restriction was no obstacle “because the appellants’ apartment building is for residential purposes only, and is but one building.” The court rejected this contention, stating (283 S.W. 615 at 617):

“We do not think that an apartment building containing several apartments designed and constructed for use as separate and distinct places of residence for separate families can be regarded as a ‘one residence’ building, as that term is used in the covenant contained in appellant’s deed, without doing violence to the cardinal rule of construction that the words used in an instrument should be given their ordinary and commonly accepted meaning in arriving at the understanding and intention of the parties in executing the instrument.”

It is to be noted that MacDonald v. Painter, supra, did not overrule Green v. Gerner, supra, the latter being specifically cited as not being analogous (441 S.W.2d 179 at 183-84). This court then stated that “[w]e conclude that the cases upon which the respondents rely [one of which was Green v. Gerner] clearly prohibit units other than single family dwellings, whereas, the Mira Loma restrictions [in MacDonald] lack that clarity.” 441 S.W.2d 179 at 184.

It is also to be noted that MacDonald v. Painter, supra, cited Bear v. Bernstein, supra, but it was merely cited for the proposition that a residential use restriction without other limiting words does not prohibit duplex living units. MacDonald did not adopt the holding in Bear. The other out-of-state cases cited in MacDonald, first, are not analogous and, secondly, were cited for the same proposition as Bear. Weber v. Graner, 137 Cal.App.2d 771, 291 P.2d 173 (1956), was a “residence purpose” restriction; Baker v. Smith, 242 Iowa 606, 47 N.W.2d 810 (1951), was a restriction “for residence purposes exclusively”; and Sporn v. Overholt, 175 Kan. 197, 262 P.2d 828 (1953), was a restriction where the lots were “designated as residence lots.”

We are not alone in our conclusion that the ordinary and commonly accepted meaning of the term “one residence” does not encompass a duplex or apartment building. Courts in several other states have reached the same conclusion. Ainsworth v. Elder, 40 Ariz. 71, 9 P.2d 1007 (1932); Flowers v. August, 426 S.W.2d 480 (Ky.1968); Michiana Shores Estates v. Robbins, 290 Mich. 384, 287 N.W. 547 (1939); Gerstell v. Knight, 345 Pa. 83, 26 A.2d 329 (1942); Bailey v. Jackson-Campbell Co., 191 N.C. 215, 131 S.E. 567 (1926); Easterly v. Hall, 256 S.C. 336, 182 S.E.2d 671 (1971).

In Flowers v. August, supra, the Court of Appeals of Kentucky dealt with a deed restriction quite similar to the one applicable to the Perlitz property. One paragraph of the restriction provided that the property “shall be used exclusively for residential purposes,” and a subsequent paragraph provided that “only one residence shall be erected on each unit.” An injunction was obtained to prevent the construction of duplex apartments on certain lots covered by the deed restriction. The Kentucky court upheld the injunction, stating:

“It seems clear that the rule announced in Macy v. Wormald, Ky., 329 S.W.2d 212, would preclude construction of duplex apartments in face of Restriction 8 [the “only one residence” restriction], unless that restriction has been deleted by agreement of all the lot owners in the subdivision. In Macy a restriction provided: ‘Said lots shall be used only for residence purposes, and only one residence shall be erected upon each lot * * There we held that ‘only one residence’ means exactly what it says and cannot be enlarged to mean four residences. McMahan v. Hunsinger, Ky., 375 S.W.2d 820, recognized that a restriction to ‘residence’ purposes, standing alone, does not prohibit multiple dwellings but that a different rule obtains when the modifying term ‘a,’ ‘one,’ or ‘a single’ is prefixed to the word ‘residence.’” [Emphasis added.] 426 S.W.2d 480 at 481.

As previously indicated, petitioners had other points of error before the court of civil appeals which were not considered in view of the majority’s holding as a matter of law that the instant deed restriction did not prohibit the construction of a duplex. It is therefore necessary that we reverse the judgment of the court of civil appeals and remand this cause to it in order that it may pass on the points of error raised by the appellants in that court. The judgment of the court of civil appeals is reversed and this cause remanded to that court for its action consistent with this opinion.


author: PER CURIAM.

text:
    UNITED BEEF PRODUCERS, INC., Petitioner, v. Fred LOOKINGBILL, Respondent.
    No. B-5667.
    Supreme Court of Texas.
    Feb. 4, 1976.
    Rehearing Denied March 3, 1976.
    Witherspoon, Aikin, Langley, Woods & Gulley, E. Hazen Woods, Jr., Hereford, for petitioner.
    Richard T. Collard, Friona, for respondent.
   PER CURIAM.

Fred Lookingbill sued United Beef Producers, Inc., to recover additional compensation allegedly due Lookingbill by reason of an employment contract with United Beef. Citation was personally served on a vice-president of United Beef. United Beef failed to answer Lookingbill’s petition, and a default judgment was entered against it for the amount allegedly due, plus attorney’s fees. United Beef filed a timely motion for new trial, which the trial court overruled. The Court of Civil Appeals affirmed. 528 S.W.2d 310. We agree with the result reached by the Court of Civil Appeals. United Beef’s application for writ of error is therefore refused, no reversible error.

As part of its burden of proof to obtain relief from a default judgment by a motion for new trial, defendant must show that his motion “is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.” Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939). The Court of Civil Appeals has held in the case at bar that by failing to offer to reimburse Lookingbill for expenses incurred in obtaining the default judgment, United Beef failed to show that the granting of its motion for new trial would not work an injury to Lookingbill. The court noted that Look-ingbill resides in Colorado and would incur additional travel expense if a new trial were granted. We agree that, as a condition to the granting of his motion for new trial, a defendant seeking relief from a default judgment should be required to reimburse plaintiff for costs of suit incurred in obtaining the judgment. We do not believe, however, that a defendant should be required in every case to reimburse plaintiff for all expenses incidentally incurred in obtaining the default judgment, or for expenses which may be incurred as the result of a new trial. We believe that the determination of which expenses a defendant must bear should be left to the sound discretion of the trial court, which should consider not only travel expenses incurred by reason of the distance of plaintiff’s residence from the place of trial, but also attorney’s fees, any loss of earnings caused by trial attendance, expenses of witnesses, and any other expenses of plaintiff arising from defendant’s default. These factors should be weighed against the amount of money involved in the suit and the degree to which the defendant’s failure to answer or appear was caused by his own negligence. Thus, the amount of expenses for which a defendant should be required to reimburse a plaintiff as a condition to the granting of defendant’s motion for new trial depends on the facts of each case; the trial court should not be bound by any hard and fast rule, but should make an equitable determination which should be disturbed only upon a showing of abuse of discretion.

      . We note that United Beef also failed to allege or offer any evidence to show that no delay would be caused by the granting of its motion for new trial. See Griffin v. Duty, 286 S.W.2d 229 (Tex.Civ.App.— Galveston 1956, no writ).

      . See Glittenberg v. Hughes, 524 S.W.2d 954 (Tex.Civ.App.—Fort Worth 1975, no writ).


author: GREEN, Commissioner. DOUGLAS, Judge

text:
    Francis ODUM, aka Frankie Odum, Appellant, v. The STATE of Texas, Appellee.
    No. 50888.
    Court of Criminal Appeals of Texas.
    Dec. 17, 1975.
    On Rehearing Feb. 25, 1976.
    John Charles Hardin, Dallas, for appellant.
    Thomas A. Curtis, Dist. Atty., and Bruce P. Sadler, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty., Davis S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of murder with malice. Punishment was assessed at 99 years.

Viewing the evidence in the light most favorable to the judgment, the record reflects that in the evening of November 15, 1973, appellant and Frank Fales, uncle of appellant, acting together, assaulted Clem Pope, robbed him and killed him by stabbing him with a knife.

Appellant complains of the admission, over objection, of evidence of extraneous offenses in the cross-examination of his wife. This contention is being considered in the interest of justice. Art. 40.09, Sec. 13, V.A.C.C.P.

The record reflects that after the commission of the offense appellant went to his residence. About 10:00 o’clock p. m., he and his wife, Helen Odum, went to a lounge, where they sat at a table with Frank Fales and his girl friend, Mary Marshall.

During the direct examination of Helen Odum, a defense witness, she testified as follows at the guilt stage:

“Q All right. When you got out to the Outsider Lounge, did you notice anything that was unusual in the attitude of your husband?
“A He acted scared.
“Q Well, could you describe that to the jury, please?
“A Well, just real white all over and kind of scared to open his mouth.
“Q How does he act around his uncle and around other people?
“A Definitely not that way.
“MR. CURTIS [State]: I’m sorry, I didn’t hear?
“MR. KOLIUS [Defense]: You are going to have to speak louder.
“A Definitely not that way.
“Q (By Mr. Kolius): How does he act?
“A Just normal.
“Q Could you tell the jury what normal is, perhaps?
“A He would kid around and pretty good natured, and he wouldn’t let anyone say anything he thought was wrong in front of me.
“Q All right, and was his conduct then, that afternoon, unusual?
“A Very unusual.”

Thereafter, on cross-examination the record reflects the following questions asked, answers given, objections of the appellant, and rulings of the court:

“Q Now, in your testimony to Mr. Kolius, if I understand it correctly, he asked you how Frankie acted around you and others, whether he was good-natured, cranky or what, and you answered to him he was a good-natured sort of a fellow that always tried to get along with others and good-natured around other people; isn’t that what you said on direct?
“A Yes.
“Q Are you telling us, that jury, that that is true?
“A Yes.
“Q Isn’t it true that you were with your husband back on December the 1st, 1972, out here at McDonald’s at Fillmore and Northeast Eighth when he tried to cut a kid’s throat?
“A Yes sir.
“MR. KOLIUS: May it please the Court, the District Attorney has attempted to, and has, in fact, introduced before the jury an extraneous evidence without the proper predicate, therefore, being laid and not only, Your Honor, has he attempted to do so, but, he has asked the question in such a manner that the mere asking of the question has met with a direct assertion on his part that the matters inquired about it, in fact, true. And for that reason, Your Honor, we ask at this time that the Court grant a mistrial for the sim-pie reason that any instructions that the Court might give this jury would be completely useless and could not remove from the jury’s mind the impact of such evidence.
“THE COURT: Overruled.
“MR. KOLIUS: Note our exception.
“Q (By Mr. Curtis): You were there, weren’t you?
“A Yes sir.
“Q Now have you heard that up in Minot, South- — North Dakota, early in 1972 when you were not around there he cut another kid’s throat?
“MR. KOLIUS: Same objection, Your Honor.
“THE COURT: Overruled.
“A I hadn’t heard it.
“Q (By Mr. Curtis): You had not heard anything about that?
“A No sir.
“Q Had you heard that there was a warrant issued for his arrest for assault with a knife from Minot, South Dakota from early in 1972?
“A No sir.
“Q You know he was up there in Minot, South Dakota along about April, 1972, don’t you?
“A I don’t know where he was.
* * * ⅜ ⅜ ⅜
“Q Do you want to tell this jury again that he was always good-natured and even tempered around others?
“A To me.
“Q How about around others?
“A Around others he was.
“Q He was. You are going to stand by that statement?
“A Yes sir.
“Q Even though you were out there at McDonald’s when he cut that kid’s throat?
“A I didn’t see it.
“Q It wasn’t just one kid that got cut, according to what you heard out there, either, was it?
“A I don’t know what happened out there, I was there, but I didn’t see it.”

Appellant contends that this cross-examination of his wife constituted reversible error, arguing (1) that Helen Odum was not a character witness, and his reputation had not been placed in issue; (2) if Helen Odum had testified as a character witness on direct examination, the questions of the State inquired of the witness’ knowledge of an extraneous offense, and did not inquire as to what she had heard; and (3) that the evidence concerning the extraneous offenses was inadmissible and prejudicial, since it did not tend to prove a material fact issue.

In 23 Tex.Jur.2d, Evidence, Section 194, page 294, it is stated:

“As a general rule, in criminal cases the accused can be convicted, if at all, only by evidence that shows he is guilty of the offense charged. Consequently, evidence that he has committed other crimes that are remote and wholly disconnected from the offense with which he is charged is ordinarily inadmissible.” See Wilbourn v. State, Tex.Cr.App., 524 S.W.2d 306; Powers v. State, Tex.Cr.App., 508 S.W.2d 377; Hafti v. State, Tex.Cr.App., 416 S.W.2d 824.

There are, of course, exceptions to the general rule. In Albrecht v. State, 486 S.W.2d 97, at p. 100, this Court wrote:

“Evidence of extraneous offenses committed by the accused has been held admissible: (1) To show the context in which the criminal act occurred — what has been termed the ‘res gestae’ — under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence. (2) To circumstantially prove identity where the state lacks direct evidence on this issue. (3) To prove scienter, where intent or guilty knowledge is an essential element of the state’s case and cannot be inferred from the act itself. (4) To prove malice or state of mind, when malice is an essential element of the state’s case and cannot be inferred from the criminal act. (5) To show the accused’s motive, particularly where the commission of the offense at bar is either conditioned upon the commission of the extraneous offense or is a part of a continuing plan or scheme of which the crime on trial is also a part. (6) To refute a defensive theory raised by the accused.
“These exceptions to the general rule excluding evidence of the accused’s prior criminal conduct are not mutually exclusive. . . . ”

In the instant case, appellant did not testify, and offered no evidence tending to prove an alibi or mistaken identity. His defense appears to be that although present when the offense was committed by Fales he took no part in the assault upon deceased or in the killing and robbery. We find no exception to the general rule stated above to be present in the instant case. The State should not have been permitted to cross-examine appellant’s wife concerning the “cutting of a kid’s throat” at McDonald’s or at Minot, North Dakota.

Appellant correctly contends that the testimony of Helen Odum on direct examination did not constitute her a character witness so as to permit her to be cross-examined with “have you heard” questions. Her testimony was not geared toward a showing of good, lawful character or reputation, but was directed at proof of appellant’s conduct and appearance at a particular time. See Els v. State, Tex.Cr.App., 525 S.W.2d 11, and authorities there cited. Cf. Childs v. State, Tex.Cr.App., 491 S.W.2d 907; Mitchell v. State, Tex.Cr.App., 517 S.W.2d 282; Hurd v. State, Tex.Cr.App., 513 S.W.2d 936, 945; Aldreghetti v. State, Tex.Cr.App., 507 S.W.2d 770; Salazar v. State, Tex.Cr.App., 494 S.W.2d 548.

However, even if her testimony on direct examination be construed as making her a character witness for appellant, the State may not ask whether the witness has personal knowledge of the act, nor may its questions be so framed as to imply that the act has actually been committed. Brown v. State, Tex.Cr.App., 477 S.W.2d 617; Webber v. State, Tex.Cr.App., 472 S.W.2d 136. Objection was overruled to the inquiry: “Isn’t it true that you were with your husband on December the 1st, 1972, out here at McDonald’s at Fillmore and Northeast Eighth when he tried to cut a kid’s throat” which question was answered as shown in the quote, supra. Thereafter, the State proceeded further to imply that “It wasn’t just one kid that got cut, according to what you heard out there, was it?”

We conclude that prejudicial reversible error was committed during the cross-examination of Helen Odum.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.

OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge

(dissenting).

In the opinion on the original submission, this Court reversed the conviction on the ground that the prosecutor asked an improper question of the appellant’s wife.

The State contends that the appellant failed to preserve error in that (1) he did not ask the court to instruct the jury not to consider the answer; (2) that the same testimony got before the jury without objection; and (3) that the question was proper in view of the prior examination of the witness.

The sufficiency of the evidence is not challenged. The record reflects that the body of the deceased was found in a ditch. He died as a result of a stab wound. The deceased, appellant and Frank Fales had been drinking beer and visiting pool halls. The deceased had some large bills on his person. A short time after the homicide, appellant’s wife saw him at a lounge. While Helen Odum, appellant’s wife, was testifying at the guilt stage of the trial, she testified on direct examination as follows:

“Q. (Mr. Kolius, Defense Counsel): All right. When you got out to the Outsider Lounge, did you notice anything that was unusual in the attitude of your husband?
“A. He acted scared.
“Q. Well, could you describe that to the jury, please?
“A. Well, just real white all over and kind of scared to open his mouth.
“Q. How does he act around his uncle and around other people?
“A. Definitely not that way.
U * * *
“Q. How does he act?
“A. Just normal.
“Q. Could you tell the jury what normal is, please?
“A. He would kid around and pretty good natured, and he wouldn’t let anyone say anything he thought was wrong in front of me.
“Q. Alright, and was his conduct then, that afternoon, unusual?
“A. Very unusual.”

On cross-examination she was asked the following:

“Q. (Mr. Curtis, District Attorney): Now, in your testimony to Mr. Kolius, if I understand it correctly, he asked you how Frankie acted around you and others, whether he was good-natured, cranky or what, and you answered to him he was a good-natured sort of fellow that always tried to get along with others and good-natured around other people; isn’t that what you said on direct?”

She answered twice that the matter stated in the question was true. When the question was asked if she was present when the appellant cut the boy, appellant’s counsel objected that it was evidence being introduced on an extraneous offense without a proper predicate; that the asking of the question was a direct assertion on the part of the prosecutor. He then asked for a mistrial and stated that the instruction to the jury would be useless.

Ordinarily a reversal is not required when the error could have been cured by an instruction to the jury and the record reflects no request for such an instruction. See Daley v. State, 491 S.W.2d 932 (Tex.Cr.App.1973); Dorsey v. State, 450 S.W.2d 332 (Tex.Cr.App.1969), and Blassingame v. State, 477 S.W.2d 600 (Tex.Cr.App.1972).

It has also been held that such an instruction cures any error when other testimony of similar import is admitted without objection as was done in this case. See Buckelew v. State, 431 S.W.2d 13 (Tex.Cr.App.1968).

Assuming that it was improper to ask the question of Helen Odum concerning appellant’s cutting other people, there was other testimony of substantially the same facts admitted without objection. Frank Fales, an uncle of appellant, testified on cross-examination without objection and the State read before the-jury a statement given by him. A pertinent part of the statement is as follows:

“When this guy and Frankie were fighting in the ditch, I did not see Frankie with a knife, but I do know for a known fact that Frankie uses a knife when he gets into a fight and has cut •people before. At the police station I was shown some pictures of that man and was told that the pictures they showed me was the pictures of the same man that Frankie Odum fought with and probably killed, if he was stabbed, and Frankie has cut people without killing them.”

This shows that appellant used knives in fights and had cut people before and had cut people without killing them.

Since substantially the same facts were read before the jury without objection, any improper admission of the evidence by Helen Odum concerning appellant’s having cut people was rendered harmless. Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App.1973).

From the testimony, not only was Helen Odum testifying to appellant’s conduct on a particular time but was comparing it with the way she contended appellant normally acted at other times. The question, “How does he (appellant) act around his uncle and other people?”, was not limited to a particular time but covered his actions generally and was not limited to any particular time. She answered that he acted just normal. She had just testified that he had “acted scared” at the Outsider Lounge. Counsel for appellant was asking the questions to elicit from Helen Odum that appellant’s conduct on a specific afternoon was unusual from his general conduct. The logical import from the testimony obtained on direct examination was that on a particular time the appellant’s conduct was not normal and was very unusual and the reason that he was not normal was that he was the type of person who was normally and usually a person who would kid around with other people and was good-natured toward other people. She was then asked if appellant had “cut a kid’s throat at McDonald’s”. She admitted that she was present at the McDonald’s incident and this contradicted her testimony that he was good-natured.

Her testimony was also geared toward persuading the jury to find appellant not guilty because he had good character and law-abiding habits. This Court in Childs v. State, 491 S.W.2d 907 (Tex.Cr.App.D73), wrote:

“Appellant may not have a witness testify about his good character traits but avoid ‘placing his reputation in evidence’ simply by not specifically asking whether appellant enjoyed a good reputation in the community.”

For each of the three contentions the motion for rehearing should be granted and the judgment should be affirmed.

      . There is no evidence in the record connecting Helen Odum with the commission of ' the offense.


author: DAVIS, Commissioner. MORRISON, Judge ROBERTS, Judge

text:
    Donald Ray LOVE alias Donald Ray Davis, Appellant, v. The STATE of Texas, Appellee.
    No. 50404.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1976.

      Lindsey Enderby, Court appointed, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky and Les Eubanks, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for murder. Punishment was assessed at life.

The indictment alleged the offense occurred on or about September 2, 1973, and the record reflects that trial was in March, .1974.

The record reflects that the deceased, John Arthur Manson, was found in a severely wounded condition in his bedroom on September 3, 1973. Deceased was taken to Parkland Hospital, where he died eight days later.

Dr. William Sturner, medical examiner for Dallas County, testified that deceased died from “gunshot wounds, stab wounds and burns of the body.” Dr. Sturner stated that any one of the causes, in and of itself, could have caused death.

In a written confession, appellant stated that he shot and stabbed the deceased. An oral confession by appellant led police to the recovery of appellant’s knife. Appellant’s fingerprints were found on a bottle in the bedroom in which deceased was killed. Tests performed in the Criminal Investigation Laboratory reflected that bullets taken from the body of the deceased were fired from a gun that witness Jordan testified appellant brought to his house on September 2, 1973. Appellant was placed in possession of deceased’s automobile following the occasion in question.

Appellant complains that “the trial court erred in failing to enforce its orders after proper and timely filing by defendant and rulings by the court regarding disclosure of exculpatory evidence after admission at the time of trial by the prosecutor of ‘possible indications of another individual or individuals’ (as being participants in the murder) thus greatly prejudicing the appellant’s right to a fair trial and right of due process.”

It appears that appellant’s contention is directed to the failure of the State to reveal that another person or persons were named by deceased prior to death as his assailants.

The record reflects that before trial began appellant requested the court to order production of exculpatory evidence and in that connection the prosecutor was questioned by appellant relative to identification of one Dale Patrick Williams as having been identified “as a participant in the stabbing and shooting.” The prosecutor answered that there were some indications of possible participation by another individual or individuals, but that he could not verify the reliability of same and that Dale Patrick Williams was no-billed for this offense.

Police officer James Brigdon, who testified as to his investigation of the homicide, was recalled to the stand by appellant and stated that he attempted to talk to deceased in the hospital and, in response to his question “if it was one man,” the deceased “nodded his head yes.” Brigdon further testified that the deceased “nodded affirmatively” when asked if it was more than one man and that deceased “nodded affirmatively to everything I asked him.” In addition, the deceased nodded yes to questions relative to whether “two colored males and a female” were involved, and when asked if he could name the girl Brigdon stated “we wasn’t (sic) really sure what he said” but that he did seem to say Lynn or Linda.

James Barnwell, one of the officers who attempted to talk to the deceased in the hospital, testified on cross-examination by appellant that deceased was unable to speak but did nod his head when questions were asked him. According to Barnwell, the deceased nodded no when asked if Linda and two other named persons were involved in the attack on him, but did nod yes when asked if Williams had any part in the torture of him. The record reflects that the medical testimony adduced at the trial was in conflict relative to whether the deceased was able to answer questions calling for a yes or no answer.

The standard to be applied in cases of suppression or nondisclosure of evidence by the State is whether the testimony may have had an effect on the outcome of the trial. Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217; Smith v. State, Tex.Cr.App., 516 S.W.2d 415; Crutcher v. State, Tex.Cr.App., 481 S.W.2d 113; Means v. State, Tex.Cr.App., 429 S.W.2d 490.

The evidence of appellant’s guilt was overwhelming and the evidence relative to other people’s involvement was not only conflicting but came from the deceased at a time when there was serious doubt as to whether the deceased was able to comprehend the questions asked him. Assuming, arguendo, that appellant be correct in his contention that he should have been furnished such information prior to trial, we cannot conclude that such evidence would have exonerated appellant or have been of material importance to the defense. Jackson v. Wainwright, 5 Cir., 390 F.2d 288; Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; United States ex rel. Almeida v. Baldi, 195 F.2d 815, 33 A.L.R.2d 1407, cert. denied, 345 U.S. 904, 73 S.Ct. 639, 97 L.Ed. 1341; Curran v. State of Delaware, 3 Cir., 259 F.2d 707, cert. denied, 358 U.S. 948, 79 S.Ct. 355, 3 L.Ed.2d 353. See Goldstein, “The State and the Accused: Balance of Advantage in Criminal Procedure,” 69 Yale L.J. 1149 (1960).

No error is shown.

Appellant next contends “the trial court committed a reversible error in making comments upon the weight of the evidence and the conduct of trial counsel in questioning prosecution witnesses, in violation of Article 38.05, C.C.P.”

Appellant directs our attention to eighteen instances in the record in which he claims the court made improper comments.

This ground of error and the argument thereunder do not comply with the requirements of Art. 40.09, Sec. 9, V.A.C.C.P., which requires that the appellant’s brief “. . . shall set forth separately each ground of error of which defendant desires to complain on appeal.” Washington v. State, Tex.Cr.App., 500 S.W.2d 485; Smith v. State, Tex.Cr.App., 481 S.W.2d 886. We recognize that Sec. 9 of Art. 40.09, supra, further provides that this Court shall review a ground of error . . . notwithstanding any generality, vagueness or other technical defect that may exist in the language employed to set forth such ground of error’ ” if “ ‘in light of arguments made in support thereof’ ” it can be determined “ ‘. . . what point of objection is sought to be presented by such ground of error.’ ” Hunt v. State, Tex.Cr.App., 492 S.W.2d 540. Appellant directs our attention to numerous comments of the court without developing the context in which the same were made and concludes this ground of error by generally briefing the law relating to improper comments by a judge upon the weight of the evidence.

We cannot determine the specific ground of error relied upon by appellant and decline to further consider same because of the failure to comply with Art. 40.09, Sec. 9, V.A.C.C.P.

Appellant contends “the prosecutor made several attempts to improperly impeach appellant’s witnesses, even after appellant’s objection was properly sustained and the prosecutor was instructed to adhere to the court’s ruling: and, further, that the court improperly refused to grant appellant’s motion for a mistrial.”

Appellant urges that the “prosecutor attempted to impeach the witness by asking the witness concerning misdemeanor convictions not involving moral turpitude” and cites us to “page 994 line 10 through page 999, line 8” without identifying or setting forth the complained-of conduct of the prosecutor in such a way that the objection can be identified and understood. Art. 40.09, Sec. 9, V.A.C.C.P.; Pitts v. State, Tex.Cr.App., 478 S.W.2d 555. No error is shown.

Appellant contends “that the trial judge committed a reversible error in refusing to allow appellant to test the good faith of the prosecutor’s impeachment of appellant’s character by cross-examination and bill of exception.”

The record reflects that Mrs. Dorothy Jean Nash was called as a witness by appellant at the punishment stage of the trial and in response to a question on direct examination about knowing appellant’s reputation in the community, the witness answered in the affirmative and stated “everybody seemed to like him,” that appellant and his family were staying at her house, and that she would be willing to provide him with a place to stay and help him get started again when he gets out of prison.

On cross-examination, the witness was asked if she had heard that appellant was arrested for rape and fondling of a juvenile on December 19, 1967, and the witness answered “No.” At this juncture, appellant asked that the jury be excused so that the State “can show the good faith.” After testimony was concluded at the punishment stage of the trial, appellant requested the court to conduct a hearing on the prosecutor’s good faith in asking the question. In response to the court’s inquiry, the prosecutor stated that appellant’s arrest record reflected that on December 19, 1967, appellant “was arrested for rape and fondling a juvenile female and released to juvenile authorities.” The court then stated: “The Court sees the record and the Court holds that the State’s attorney acted in good faith.” Appellant requested that he be allowed to cross-examine the prosecutor, the request was denied by the court, and such denial forms the basis of appellant’s contention.

Appellant argues that the prosecutor could not cross-examine appellant’s character witness by asking have you heard questions which related to offenses committed when appellant was a juvenile.

V.T.C.A. Family Code, Section 51.13(b) (effective January 1,1974), like its forerunner, Art. 2338-1, Sec. 13(e), V.A.C.S., prohibits the admission into evidence of the disposition of a juvenile proceeding. This Court has held that such prohibition in no way affects the qualification of a witness who acquired knowledge of the defendant’s general reputation when he was a juvenile. See Fortson v. State, Tex.Cr.App., 474 S.W.2d 234; Walker v. State, Tex.Cr.App., 454 S.W.2d 415. In Lee v. State, Tex.Cr. App., 470 S.W.2d 664, this Court held that it was not improper in cross-examining a character witness to inquire about acts when defendant was a juvenile. See Hart v. State, Tex.Cr.App., 447 S.W.2d 944. We find no merit in appellant’s complaint that he was not allowed to cross-examine the prosecutor to show the State’s bad faith since such claim appears to have been bottomed on the premise that the State could not cross-examine a character witness about acts when appellant was a juvenile.

Appellant contends “the trial court committed a reversible error in not allowing testimony concerning the homosexual involvement of the deceased with various persons, such relationships being material to the case in chief as well as to the issue of mitigation of punishment.”

By way of bill of exception, it was developed that the deceased had been observed in bed with another male on top of him. Appellant urges that he should have been allowed to explore the relationship between the deceased and Dale Williams since Wil-Hams’ clothes had been found at deceased’s home. Appellant admits that he knows of no authority to support this contention but suggests that great latitude should be taken in admitting potentially material evidence. We perceive no error in the court’s refusal to allow appellant to present testimony concerning homosexual involvement of the deceased with various persons. See C. McCormick & Ray, Texas Evidence, Sec. 1493 (2d ed. 1956).

Appellant contends the prosecutor was in error in arguing facts outside the record.

The following argument of the prosecutor gives rise to appellant’s contention:

“Now you know you have been treated to a great big helping of Defense tactics, what we call a smoke screen, here and I have to admit that Mr. Zimmerman [appellant’s counsel] has come up with possibly the most novel tactic I have ever seen.”

Appellant objected “to what is novel to Mr. Eubanks as his personal opinion,” the court overruled the objection, and appellant urges that such action by the court requires reversal. The prosecutor then argued that while it was the usual thing for a defense lawyer to attack the prosecutor, it was unusual for counsel to attack the court and suggested that other tactics of counsel were unusual. We perceive no reversible error in the complained-of argument. See Joshlin v. State, Tex.Cr.App., 468 S.W.2d 826.

Appellant complains that the prosecutor was in error in arguing that an extraneous offense occurred.

The record reflects the following occurred during the prosecutor’s argument which gives rise to this contention:

“MR. EUBANKS: ... an attempted burglary; you could see how the items were moved around, a robbery; it’s a reasonable deduction from the evidence.
“MR. ZIMMERMAN: Your Honor—
“MR. EUBANKS: His billfold was empty-
“MR. ZIMMERMAN: Object to the extraneous offense being related before the jury-
“THE COURT: Go ahead counsel.”

Evidence before the jury reflects that deceased’s wallet was found on the dresser in deceased’s room and that there was no money in the wallet. In addition, there was evidence which placed appellant in possession of the deceased’s car following the occasion in question. All of the facts and circumstances surrounding the offense on the occasion in question are admissible before the jury on the question of guilt and may be considered in determining punishment to be assessed. Dunlap v. State, Tex.Cr.App., 462 S.W.2d 591; Taylor v. State, Tex.Cr.App., 420 S.W.2d 601. Thus, if a robbery or burglary occurred at the time of the attack on the deceased, argument referring to the same would not be improper. We conclude that the argument that a burglary or robbery occurred on the occasion in question was a reasonable deduction from the evidence. See Jackson v. State, Tex.Cr.App., 486 S.W.2d 764.

Appellant further complains of still another argument of the prosecutor where it is contended that the prosecutor injected unsworn facts before the jury.

The record reflects that the prosecutor argued:

“Mr. Prather and I are not trophy hunters or out to do anything that we don’t feel is right, under the facts of the case

Appellant objected to the prosecutor expressing “his personal opinion as to what he believes is right,” and the same was overruled by the court.

The record reflects that appellant had previously pointed out in his argument that it is the primary duty of prosecutors not to convict but to see that justice is done, and questioned the prosecutor’s conduct about suppressing evidence and the fairness of the trial.

We conclude that the complained-of argument of the prosecutor was invited by the argument of appellant. See Allen v. State, Tex.Cr.App., 513 S.W.2d 556.

Lastly, appellant urges “cumulative error.” Appellant complains that the court displayed “an insouciant attitude toward all participants” and that “the depths of the prosecutor’s inexorable pursuit of victory is appalling.” Appellant points to numerous rulings of the court, comments by the court and conduct of the prosecutor. This ground of error is clearly not in compliance with Art. 40.09, Sec. 9, V.A.C.C.P., and will not be reviewed.

Finding no reversible error, the judgment is affirmed.

Opinion approved by the Court.

MORRISON, Judge

(concurring).

It is clearly improper to impeach an accused or a witness by proof of prior juvenile record. Ruth v. State, Tex.Cr.App., 522 S.W.2d 517, and Rivas v. State, Tex.Cr.App., 501 S.W.2d 918.

Another question, however, is presented when a reputation witness is being examined. As we said in Fortson v. State, Tex.Cr.App., 474 S.W.2d 234, at p. 235:

“It was not improper to inquire about appellant’s reputation from witnesses having personal knowledge of the same. The fact that appellant was a juvenile when this reputation was acquired would not affect the admissibility of such testimony.”

See also Walker v. State, Tex.Cr.App., 454 S.W.2d 415; Lee v. State, Tex.Cr.App., 470 S.W.2d 664; and Hart v. State, Tex.Cr.App., 447 S.W.2d 944.

Under these authorities, the question complained of was a proper inquiry because it was testing the witness’ knowledge of appellant’s reputation. If the question was proper, bad faith was not in the case.

ROBERTS, Judge

(dissenting).

I would reverse this case on the basis of the trial court’s failure to allow the appellant to test the prosecutor’s good faith in impeaching the appellant at the punishment hearing through the use of offenses committed while the appellant was a juvenile.

The record reflects that the appellant’s sister, Dorothy Jean Nash, testified at the punishment hearing concerning the appellant’s reputation in the community. When asked what that reputation was, she replied that “everybody seemed to like him.”

On cross-examination the prosecutor asked Mrs. Nash if she had heard “that on December 19 of 1967 the Defendant was arrested for rape and fondling of a juvenile.” The witness answered, “No.” The appellant then objected and asked that the jury be excused so that the State could show its good faith. The prosecutor indicated that he would be willing to comply with the appellant’s request, and the court overruled the objection.

After the appellant had called his last witness at the punishment hearing, he again asked that the court conduct a hearing to determine whether the prosecutor had acted in good faith in asking the question. In response to the court’s inquiry, and outside the presence of the jury, the prosecutor stated that appellant’s arrest record reflected that on December 19, 1967, the appellant “was arrested for rape and fondling a juvenile female and released to juvenile authorities.”

The court then stated: “The Court sees the record and the Court holds that the State’s attorney acted in good faith.” The trial court then denied the appellant’s request that he be allowed to cross-examine the prosecutor concerning his good faith.

In Rivas v. State, 501 S.W.2d 918, 920 (Tex.Cr.App.1973), this Court specifically held that the juvenile record of a witness may not be used to impeach him. In Ruth v. State, 522 S.W.2d 517 (Tex.Cr.App.1975), the prosecutor repeatedly attempted to impeach the defendant at the punishment stage through the use of the defendant’s juvenile record. We reversed, holding that the “egregious action by the prosecutor was highly inflammatory and calculated to prejudice the defendant.” Ruth v. State, supra, at 519. See V.T.C.A., Family Code, Sec. 51.13(b).

In Davis v. State, 160 Tex.Cr.R. 138, 140, 268 S.W.2d 152, 153 (1954), this Court held:

“The asking of a question is not always reversible error, but where it is shown, as was done in this case, that the prosecutor knew that the question was improper the matter became a more serious one.”

See also Blankenship v. State, 163 Tex.Cr.R. 94, 289 S.W.2d 240 (1956); Parrish v. State, 163 Tex.Cr.R. 252, 290 S.W.2d 245 (1956); Garcia v. State, 167 Tex.Cr.R. 211, 319 S.W.2d 727 (1959); Robertson v. State, 463 S.W.2d 18 (Tex.Cr.App.1971).

In Davis, the prosecutor, while cross-examining the defendant about his whereabouts after the homicide, asked, “And you got in jail too, didn’t you?” After replying in the affirmative the appellant was asked, “Had to pay a fine for choking an old man?” The jury was retired, and the defendant showed by bill of exception that the special prosecutor knew that the offense was a justice court offense not involving moral turpitude.

In this case, the trial court prevented the appellant from cross-examining the prosecutor to determine whether the attempted impeachment was in bad faith — that is, whether the prosecutor knew when he asked the question that the appellant was a juvenile at the time of the earlier arrest. The appellant was thus precluded from developing what — under the authority of Rivas, Ruth, and Davis — might have been reversible error.

It is fundamental that a trial court may not deny to an accused the right to present evidence which may reflect reversible error. See Art. 40.09(6)(d)(l), Vernon’s Ann.C.C.P. In Miller v. State, 52 Tex.Cr.R. 72, 76, 105 S.W. 502, 505 (1907), this Court said:

“It would seem from what has been stated that appellant used all the diligence possible to have this, as well as other bills prepared and filed during the term of the court, and there was ample time to have done so if proper action had been taken, and that he is deprived of his bill and placed in such an attitude before the court on appeal that he cannot have it considered, and this without his fault. This requires a reversal of this judgment, if there were no other reasons.”

And in White v. State, 135 Tex.Cr.R. 210, 117 S.W.2d 450 (1938), this Court again reversed because of the refusal of the trial judge to allow the defendant to perfect his bill. White had been assessed the death penalty after being convicted of rape. In reversing, this Court said:

“However much we may regret to reverse cases of this character, yet, when the accused has not had a trial according to the laws of the land, it is the duty of this court, under their solemn oath, to see that it is accorded to him.” White v. State, supra, 135 Tex.Cr.R. at 215, 117 S.W.2d at 453.

The appellant in this case, like White and Miller before him, has been deprived of the opportunity to preserve error for review in this Court; he “has not had a trial according to the laws of the land.” White v. State, supra, and cases there cited. Miller v. State, supra; Art. 40.09(6)(d)(l), supra; Cox v. State, 137 Tex.Cr.R. 59, 128 S.W.2d 386 (1939); Kilpatrick v. State, 85 Tex.Cr.R. 172, 211 S.W. 230 (1919). And compare Morris v. State, 411 S.W.2d 730 (Tex.Cr. App.1967); Vines v. State, 479 S.W.2d 322 (Tex.Cr.App.1972); and Jones v. State, 496 S.W.2d 566 (Tex.Cr.App.1973).

The judgment should be reversed.

      . An examination of the records of this Court shows what the Davis opinion strongly implies: that the method used to establish the prosecutor’s knowledge was by cross-examination of the prosecutor himself. This Court approved of that method of establishing the prosecutor’s bad faith and reiterated this approval in Blankenship v. State, supra, 163 Tex.Cr.R. at 96, 289 S.W.2d at 241-242, and Robertson v. State, supra, at 20. See also Garcia v. State, supra.

      . This Court’s holdings in Fortson v. State, 474 S.W.2d 234 (Tex.Cr.App.1971); Walker v. State, 454 S.W.2d 415 (Tex.Cr.App.1970); Lee v. State, 470 S.W.2d 664 (Tex.Cr.App. 1971); and Hart v. State, 447 S.W.2d 944 (Tex.Cr.App.1970) are not in point. In Fort-son and Walker, the State was properly allowed to introduce testimony that the defendant’s general reputation for being a peaceful and law abiding citizen was bad; no specific instances of misconduct were alluded to, as was done in the present case.
      In Lee, this Court specifically held that “[t]he record does not indicate the questions were asked in bad faith.” Lee, supra, at 665, n. 1. A re-examination of the record of that case reveals that the defendant only questioned the prosecutor’s bad faith, but made no attempt to gain a hearing on the issue outside the jury’s presence.
      In Hart, the careful trial court permitted the defendant to attempt to show that the disputed question was asked in bad faith; that this attempt was unsuccessful in Hart’s case can hardly stand as authority for the proposition that the appellant in the present case could not have shown bad faith.