author: ROBERTS, Judge. MORRISON, Judge DOUGLAS, Judge

text:
    William Parma GASSETT, Appellant, v. The STATE of Texas, Appellee.
    No. 49599.
    Court of Criminal Appeals of Texas.
    Jan. 21, 1976.
    Rehearing Denied Feb. 11, 1976.

      Jim Martin, Dallas, for appellant.
    Henry Wade, Dist. Atty. and Richard W. Wilhelm and Hugh Lucas, Asst. Dist. At-tys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for murder with malice under Arts. 1256 and 1257, V.A.P.C. Trial was before a jury and the jury assessed a punishment of seven years’ imprisonment.

This murder grew out of a family dispute. The deceased was a former husband of the appellant’s wife and had waged a long, and finally successful, battle for custody of the couple’s children. The evidence showed, however, that appellant’s wife was illegally retaining custody of one of the children, and this prompted the deceased to make periodic trips into her neighborhood to search for signs of the child. Appellant killed the former husband on one of these periodic surveillance trips into appellant’s neighborhood. The defense put great stock in showing the deceased to have a bad reputation as a husband and a father. Appellant’s wife testified that the deceased had been arrested or indicted for desertion or non-support in Dallas, Odessa, and Clovis, New Mexico. In rebuttal, the State adduced evidence that appellant’s wife was a bad mother. The State also attempted to prove that the deceased did not have the criminal record testified to by his former wife.

In this connection, the State called an investigator from the Dallas district attorney’s office who offered testimony that the National Criminal Information Center (N.C. I.C.) computer revealed no record of arrests or indictments concerning the deceased. Appellant objected to this testimony on the grounds that it was hearsay and the proper predicate had not been laid. In this appeal, appellant contends that the proffered testimony, which finally came in over his numerous and thorough objections, was hearsay not within the exceptions to the hearsay rule provided by Arts. 3731a or 3737e, V.T. C.A.

Appellant calls our attention to Sec. 5 of Art. 3731a, which governs admissibility of written statements to the effect that no record of a specified tenor exists. We note, however, that no written record was offered by the State or admitted into evidence by the court. Thus, the provisions of Sec. 5 obviously do not authorize the admission of this evidence. The witness offered oral testimony as to the contents of the N.C.I.C. computer print-out showing the non-existence of any arrests or indictments. Sec. 6 of Art. 3731a permits other methods of proving the lack of an entry in an official record if authorized by statutory or deci-sional law.

The witness’s parol offer constituted common law hearsay. Whether or not it came within the statutory exception to the hearsay rule for business records is a question of first impression in this Court. In fact, our research has revealed no case in which any Texas court has construed Art. 3737e, Sec. 3, V.T.C.A., the law applicable to this case. Nor is there a comparable provision in the federal “business records as evidence” act. 28 U.S.C., Sec. 1732.

Art. 3737e, Y.T.C.A., sets out the well-recognized “business records” exception to the hearsay rule. Subsection 1 thereof states three prerequisites to the introduction of a relevant business record or memorandum: (a) it must have been made in the regular course of business, (b) by an employee or representative with personal knowledge of its contents, (c) at or near the time in question. The record or memorandum may be offered by the entrant, custodian, or other qualified witness, even though he may lack personal knowledge of its contents. Art. 3737e, Sec. 2. Lumpkin v. State, 524 S.W.2d 302 (Tex.Cr.App.1975). “Business” is defined broadly enough in Sec. 4 to include the law enforcement agencies involved herein. Coulter v. State, 494 S.W.2d 876 (Tex.Cr.App.1973). Section 3 permits testimony as to the absence of such a record or memorandum and would seem to control the situation at bar. The only prerequisite stated in Sec. 3 to the introduction of such testimony showing the non-existence of an act, event, or condition is that the judge must find that such act, event, or condition would otherwise be recorded and preserved in the ordinary course of business at or near the time in question. Presumably the testimony contemplated by Sec. 3 should be given by the “entrant, custodian or other qualified witness” mentioned in Sec. 2.

In the case at bar, the witness did not show that the arrests and indictments which he said did not exist would otherwise have been entered in the computer in the ordinary course of law enforcement business. Without such proof, his testimony would have no probative value at all. See U. S. v. De Georgia, 420 F.2d 889 (9th Cir. 1969). In discussing the N.C.I.C. and other computer systems, it has been said:

“The major problems of the developing crime data networks are ones of controlling the accuracy, accessibility, scope and uses of crime information. Much of the basic data in such systems consists of local police reports, arrest records, rap sheets, and court records which are often inaccurate and incomplete. ... Incomplete information—recording a person’s indictment without his subsequent acquittal, for instance, or failing to withdraw an outdated warrant—could subject innocent parties to continued police pickups and interrogations.
* ¾: ⅜ ⅜ *
Crime records in a centralized data network may be subjected to tampering or accidental destruction. . . . ‘data saboteurs’ could intentionally destroy or obfuscate the computer files on particular criminals or purposefully introduce false information on innocent parties into the system. Poorly trained computer operators or illdesigned systems might inadvertently ‘dump’ vital data records.” Katzenbach, Nicholas de B. and Richard W. Tome, Crime Data Centers: The Use of Computers in Crime Detection and Prevention, 4 Colum. Human Rights L.Rev. 49, 52-53 (1972).

The chance that law enforcement officials in Odessa and Clovis, New Mexico, failed to enter information on arrests of and charges against deceased is not insubstantial. It was not even shown that the N.C.I.C. has computer terminals in Odessa or Clovis. The probative value of the witness’ testimony is thus open to serious question. See Romero v. State, 493 S.W.2d 206 (Tex.Cr.App.1973) for expressions of similar concern about the reliability of polygraph examinations.

The witness, an investigator for the district attorney’s office, stated that the “normal custodian” of the N.C.I.C. computer terminal was an employee of the sheriff’s department who had initialed the print-out from which the witness was testifying. It would appear then that he was not the “entrant or custodian” contemplated by Sec. 2 although the judge might have found that he was an otherwise “qualified witness” to give the testimony. This conclusion would be supported by the fact that the witness had regular access to the N.C. I.C. computer terminal, understood how the N.C.I.C. computer system worked, and knew how to operate the terminal fixture in the sheriff’s office. See Railroad Commission v. Southern Pacific Company, 468 S.W.2d 125 (Tex.Civ.App.1971) for a discussion of the requirements for “other qualified witness[es]” as well as other prerequisites to the introduction of such electronic records. However, it is apparent that the State did not adduce that part of the predicate specifically called for by Sec. 3. The witness’ testimony therefore did not comply with the statute and amounted to nothing more than rank hearsay.

It remains to consider the harmfulness of this error. Appellant’s defense relied heavily on proving the deceased’s bad character. The primary defensive issues were murder without malice and self-defense. The marital and custody disputes between the deceased and appellant’s wife were an integral part of the events leading to this killing. Appellant’s wife, whose credibility was severely impugned by the erroneously-admitted testimony, was one of appellant’s main witnesses. The only other instance in the record in which the State hinted that the deceased had no criminal record was also objected to by the appellant. And an investigator for the district attorney’s office apparently quoting from an N.C.I.C. computer print-out would be clothed with much indicia of respectability. We are unable to conclude beyond a reasonable doubt that the error complained of could not have affected the verdict in this case.

The conviction is reversed and the cause remanded.

MORRISON, Judge

(dissenting).

I dissent to my brother Roberts’ opinion reversing this conviction on the basis of an incomplete predicate under Sec. 3 of Article 3737e, V.T.C.A.

The testimony showed that the witness had personal knowledge of the existence of a terminal in Odessa and the entry into N.C.I.C. records of all arrests in Odessa. He testified that Dallas County also had a N.C.I.C. computer terminal and the printout he received that morning was created in the normal course of business. He stated that he had searched the records in the district attorney’s office in Dallas County of all complaints in criminal actions filed in Dallas County since 1920. He also searched the records in the identification division of the Dallas County Sheriff’s Office, where records are communicated on persons who are arrested anywhere in the country. Without stating what had been said, he testified that he had contacted the police department and records bureau in Clovis, New Mexico. On the basis of this testimony, the witness stated he had no knowledge of any arrests for the deceased.

Under these circumstances, the failure to prove that arrests are entered in N.C.I.C. records in the regular course of business in Clovis, New Mexico, was harmless error.

The judgment should be affirmed.

DOUGLAS, Judge

(dissenting).

Appellant killed Dr. George Bob Sollock on July 11, 1973. Before the homicide there had developed a dispute between the deceased and his ex-wife, subsequently the appellant’s wife, concerning the custody of one of the children of their marriage. The deceased gained custody of the child after a trial in Dallas County but the appellant’s wife left town with the child and went to various parts of the country to circumvent the court order.

On the evening of the shooting, Dr. Sol-lock and his wife drove to the appellant’s neighborhood to see if they could find the child. As they passed a house where they had seen the appellant’s truck parked, they saw him get into his truck and follow them with the truck’s headlights turned off. He followed them for a short while before he turned the lights on. After passing them, the appellant stopped his truck in front of them in such a way as to force them to the curb. He left his truck and walked toward the couple’s car with a gun in his hand. As he approached the car, the deceased reached under the car seat for a derringer that he kept there. Appellant reached the car, pointed his gun at the deceased’s head and dared the deceased to get out of the car. The deceased got out of his car holding the derringer behind him and told the appellant that he had a gun also. At that point the appellant shot the deceased in the chest.

Roy Messick, a witness called by appellant, testified he was watching appellant’s house to prevent burglaries. He testified that he heard a knock on the door and when he opened it appellant said: “Roy, I caught a man on my property snooping around and I chased him down here and then shot the son-of-a-bitch.”

The majority reverses this conviction because of the admission of testimony offered by the State in its attempt to rebut the testimony given by the appellant’s wife concerning the deceased’s criminal record. The State called an investigator from the district attorney’s office who testified that he had received a computer print-out from the National Criminal Information Center (N.C. I.C.) showing that the Center had no record of arrests or indictments relating to the deceased. The appellant objected to this testimony on the grounds that it was based on hearsay, that no proper predicate had been laid for the introduction of the witness’ testimony and that the witness was not the custodian of the N.C.I.C. records.

It should not be necessary to decide if the testimony came within the business record exception to the hearsay rule as set out in Article 3737e, V.T.C.A., [more specifically, Section 3 of Article 3737e dealing with testimony as to the absence of any record or memorandum]. This testimony was introduced to rebut the appellant’s wife’s testimony concerning the indictment and arrest of the deceased for criminal desertion. The wife’s testimony itself was not properly admitted. In Morgan v. State, 515 S.W.2d 278 (Tex.Cr.App.1974), this Court held that it was not proper for a witness to testify that another was convicted without the records being introduced. Her testimony about indictments had nothing to do with any defensive issue in this case. The witness Mes-sick testified that appellant said that he had seen a man snooping around his property and he chased him and shot the son-of-a-bitch. Appellant made a similar statement to an officer before he was arrested. After appellant testified he stated that he shot Dr. Sollock in self-defense, the court instructed the jury on self-defense. The trial judge was very patient in permitting evidence of several custody trials involving the children of the deceased. If there were indictments they were immaterial to any issue in the case. There was no objection that the witness was being impeached upon an immaterial matter and appellant points this out in his brief.

Prior acts of violence or misconduct which show the violent character of the deceased can be admitted in certain limited circumstances. Nichols v. State, 504 S.W.2d 439 (Tex.Cr.App.1974). In this case, however, the prior record sought to be introduced would not show the violent nature of the deceased. Criminal desertion or nonsupport cannot be characterized as crimes of violence. Such crimes, in and of themselves, could not be said to indicate that the deceased was the aggressor at the time of the killing and should not be admissible. See Jackson v. State, 141 Tex.Cr.R. 251, 147 S.W.2d 1078 (1941). Even if the arrest and indictment did show the violent nature of the deceased more would be required in way of proof than the hearsay testimony of the wife. See Everhart v. State, 154 Tex.Cr.R. 291, 226 S.W.2d 637 (1950). See Morgan v. State, supra.

In view of the lack of probative value of the wife’s testimony, Mendoza v. State, 522 S.W.2d 898 (Tex.Cr.App.1975), and the amount of other testimony dealing with the violent character of the deceased by Joan Gassett’s father, the admission of the testimony concerning the computer print-out, if error, was harmless error. See Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974). The testimony of appellant’s wife was rebutted by her own daughter. The daughter testified that Dr. Sollock was not a man of violent character but that her mother was.

There being no reversible error, the judgment should be affirmed.

      .The jury had appellant’s admission that he killed the deceased. Appellant followed the deceased, curbed his car and shot him. Appellant testified that he ended the custody matter when he killed the deceased. Appellant also admitted that he sent a bill to the wife of the deceased for $160 because he was required to be present at a hearing involving the murder case and he missed a day of driving a truck. This is included to show what the jury had before it to show harmless error.


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    Franklin D. MOORE et al., Appellants, v. The STATE of Texas, Appellee.
    No. 50676.
    Court of Criminal Appeals of Texas.
    Jan. 21, 1976.

      Henry Moore, Hillsboro, for Moore.
    William L. Fly, San Marcos, for Glenn.
    Robert G. Dohoney, Hillsboro, for Daw-kins.
    Frank Bobbitt McGregor, Dist. Atty., Hillsboro, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

These appeals are taken from convictions in a joint trial before a jury for felony theft under the former Penal Code. The punishment was assessed by the jury at nine (9) years for each appellant.

At the outset we are confronted with the claim of the appellants that the indictment is fatally defective for failure to sufficiently describe the property allegedly stolen. Omitting the formal parts, the indictment states that the appellants “did then and there unlawfully and fraudulently take Personal property of over the value of $50.00 to wit: barbed wire of the value of over fifty Dollars, the same then and there being the corporeal personal property of and belonging to Morris Peterson . . ..”

Article 21.09, Vernon’s Ann.C.C.P., provides:

“When it becomes necessary to describe property of any kind in an indictment, a general description of the same by name, kind, quality, number and ownership, if known, shall be sufficient. . . . ”

In Moore v. State, 473 S.W.2d 523 (Tex.Cr.App.1971), this court took note of Article 21.09, supra, while holding fundamentally defective an indictment which merely alleged that the defendant unlawfully and fraudulently took tires of the value of over $50.00 without any statement as to the number or kind of tires taken.

In Moore v. State, supra, the court said:

“In Matthews v. State, 39 Tex.Cr.R. 553, 47 S.W. 647; 39 Tex.Cr.R. 553, 48 S.W. 189, a case decided under a forerunner of the present statute, this court called attention to the fact that our practice had been more liberal with reference to a general description than was the common law and said:
“ ‘But we know of no case in this state that holds an indictment sufficient which does not in some way designate the number of things or animals alleged to have been stolen; and we hold that, if any case could be found, it would not be supported by authority.’
“In Luce v. State (1920) 88 Tex.Cr.R. 46, 224 S.W. 1095, it was held that a description of property which is merely a classification, without stating the number and kind of property, is insufficient. And in Scott v. State (1934) 125 Tex.Cr.R. 396, 67 S.W.2d 1040, it was held that an indictment charging embezzlement of ‘certain lubricating oil’ but not describing quantity or kind of oil was insufficient. See also 5 Branch’s Ann.P.C., 2d ed., Sec. 2611, pp. 61, 62.
“In Oakley v. State (1959) 167 Tex.Cr.R. 630, 323 S.W.2d 43, the indictment alleged the defendant did ‘fraudulently take seed of the value in excess of $50.00.’ There this court held that the description of the property taken contained in the indictment was so fundamentally defective as to require reversal even though there was no motion to quash. Luce v. State, supra; Scott v. State, supra; Howk v. State, 138 Tex.Cr.R. 275, 135 S.W.2d 719; Leos v. State, 155 Tex.Cr.R. 478, 236 S.W.2d 817, were cited with approval. Cf. Mankin v. State (Tex.Cr.App.1970) 451 S.W.2d 236, 241. We are aware of the holding in Young v. State (1940) 139 Tex.Cr.R. 509, 141 S.W.2d 315 that ‘one automobile tire’ was a sufficient description and that ‘one tire of the value of ten dollars’ and ‘one wheel of the value of ten dollars’ were held an adequate description of stolen property alleged in the information in Hendley v. State (Tex.Cr.App.1958), 313 S.W.2d 296. These cases indicate our rather liberal practice as to allegations concerning property description.
“In the instant case, however, neither the number or the kind of tires was alleged.
“Therefore we conclude that the instant indictment charging only that the appellant took ‘tires of value of over $50.00’ was fundamentally defective and the court erred in overruling the motion to quash.”

We deem the Moore case here controlling.

It must be remembered that it is the intent of Article I, Sec. 10 of the Texas Constitution that an accused in a particular case must be furnished information upon which he may prepare his defense, and this information must come from the face of the indictment. Voelkel v. State, 501 S.W.2d 313 (Tex.Cr.App.1973).

It is, of course, not sufficient to say that the accused knew with what offense he was charged, but the inquiry must be whether the charge in writing furnished that information in plain and intelligible language. Moore v. State, supra; Wilson v. State, 520 S.W.2d 377, 379 (Tex.Cr.App.1975).

Further, the rule is that an offense should be charged in plain and intelligible words with such certainty as to enable the accused to know what he will be called upon to defend against and to enable him to plead the judgment that may be given on it in bar of any further prosecution for the same offense. Gaines v. State, 501 S.W.2d 315 (Tex.Cr.App.1973); Wilson v. State, supra.

We conclude that the court erred in failing to grant the motions to quash the indictment.

While these cases must be reversed, we take note of the question of the sufficiency of the evidence in the event of a retrial. The appellants all challenge the sufficiency of the evidence to sustain the convictions.

The record reflects that on January 24, 1973, some sixteen or seventeen rolls or spools of barbed wire were stolen from the Gebo’s Farm and Supply Company in Hills-boro. The manager of the company testified he had not given the appellants permission to take any barbed wire. He related the hole in the fence that he observed around midnight of January 24th had not been there when the business was closed the afternoon before.

Appellant Glenn, while the other appellants were present, rented a U-Haul trailer near the city of West about 8:30 p.m. on January 24, 1973. At 9:30 p.m. the threesome were placed in the Amvet Club in Hillsboro by the manager of this club, located two and a half blocks from Gebo’s. He saw them drinking and overheard a conversation concerning the need to acquire money “to get out of some kind of deal over in East Texas.” At approximately 10 p.m. Hillsboro City Policeman Knox noticed a car with a U-Haul trailer attached parked in the Gebo’s lot. He thought he saw two or three men in the automobile and circled back to investigate, losing sight of the scene momentarily. When he returned, he saw only the appellant Glenn lying inside the car, intoxicated and only half conscious. Glenn’s hands were cut and bleeding. He did not have any keys to the car, which was later determined to belong to appellant Dawkins. Inside the car were found three pair of gloves, one apparently blood soaked and badly shredded, while the other two were not so badly torn.

A chain link fence surrounding part of the Gebo property had a hole or an opening cut into it, and there appeared to be blood traceable from the hole to the part of the property where the barbed wire was stored. Some of the rolls or spools of wire still in the store appeared to have blood on them, but none of the substance which appeared to be blood was ever chemically analyzed.

Glenn was arrested, and inside the car was found a pistol and a pair of vice grip pliers. Either in the U-Haul trailer or the trunk of the car were some metal bands used to bind fence posts together similar to ones used and sold at Gebo’s. Paint chips similar in appearance to galvanizing agent on barbed wire and wire stripping similar to that used to hold rolls of barbed wire together were found. Dawkins and Moore were not placed at the scene.

An unnamed informant told a deputy sheriff the next morning the stolen barbed wire could be found outside Hillsboro about 15 miles at the Western Inn, operated by a Nick Rogers. The officers found the wire there and talked to Rogers, but he was not called as a witness as he could not be found. Moore was shown to have been arrested on a warrant in McLennan County, although the record does not show when or where Dawkins was apprehended.

It is clear from the above that the case rests upon circumstantial evidence and the court so instructed the jury.

In 24 Tex.Jur.2d, Evidence, Sec. 742, p. 422, it is stated:

“In criminal cases, a judgment of conviction, to be sustained on appeal, must be supported by evidence that produces a moral certainty of the guilt of the accused to the exclusion of every reasonable doubt. The evidence will be insufficient to sustain the conviction where, although not leaving the accused free from suspicion of guilt, it still fails to show his guilt to a moral certainty, so as to exclude all reasonable doubt.”

As noted above, a conviction based on circumstantial evidence cannot be sustained unless the circumstances exclude every other reasonable hypothesis except that the accused is guilty. Proof which amounts only to a strong suspicion or mere probability is insufficient. Higgins v. State, 515 S.W.2d 268 (Tex.Cr.App.1974); Indo v. State, 502 S.W.2d 166 (Tex.Cr.App.1973); Flores v. State, 489 S.W.2d 901 (Tex.Cr.App.1973); Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969).

In determining whether circumstantial evidence is sufficient to support a conviction, each case must necessarily be tested by its own facts. Ysasaga v. State, 444 S.W.2d 305 (Tex.Cr.App.1969).

Ordinarily, the test on appeal is whether there was evidence from which the jurors (advised of the restrictions the law places upon them in condemning one on circumstantial evidence) might reasonably conclude that every reasonable hypothesis other than guilt was excluded. Ysasaga v. State, supra. Mere presence in the vicinity of a crime, even when coupled with flight, is not alone sufficient to sustain a conviction. Ysasaga v. State, supra.

The evidence here reflects a person or persons unknown took the rolls of barbed wire from Gebo’s store sometime between the closing of the store and approximately 10 p.m. on January 24, 1973. Sixteen rolls of the barbed wire taken were recovered at Western Inn operated by Nick Rogers. The evidence does not place any. of the appellants in possession of the stolen property and neither Moore nor Dawkins was placed at the scene of the alleged offense. The most incriminating evidence against Moore and Dawkins was that they were with Glenn when he rented a trailer in West and were with him in a club talking about needing money. Of course, Glenn was found in Dawkins’ car, but Dawkins was not shown to be present at .the time.

From the facts in the record, the State has only shown a possibility and a suspicion that the appellants Moore and Dawkins were guilty parties. Even when construed in the light most favorable to the jury’s verdict, the evidence is insufficient to meet the required test and to sustain the convictions of Moore and Dawkins.

As to the appellant Glenn, the evidence is somewhat incriminating. He was found in a car near the scene of the burglary with his hands cut, with bloody gloves, and there appeared to be blood in the area near where the offense occurred, although such substance was not chemically analyzed. He was not found in possession of any stolen barbed wire and Officer Knox testified his intoxicated condition would have prevented Glenn from carrying the spools of barbed wire. While there were metal bands, wire stripping and paint chips found in the car or trailer which would have been present if the offense charged had indeed been committed as the State theorizes, it cannot be said that all other reasonable hypotheses for the presence of these items were excluded. There was no showing of the condition of the trailer at the time of rental to exclude facts the paint chips were not then present or that the paint chips observed had come from barbed wire and no other source. While the metal bands and wire stripping were described as similar to those used by Gebo’s, there was no testimony that such metal bands, etc., wire stripping used exclusively by Gebo’s, nor were any of such items identified as being items that actually came from Gebo’s.

As noted above, mere presence at the scene of the crime is not sufficient alone to show guilt and when that, coupled with all the other circumstances, is considered, the proof as to Glenn’s guilty amounts only to a strong suspicion or mere probability. This is not sufficient. Higgins v. State, supra.

For the reasons stated, the convictions must not only be reversed because of the defective indictment, but for lack of sufficient evidence to sustain the convictions.

The judgments are reversed and dismissed under the present indictment.

      . Article 21.09, Vernon’s Ann.C.C.P., was amended by Acts 1975, 64th Leg., p. 909, ch. 341, Sec. 2, effective June 19, 1975. Such amendment is not applicable to this case.

      . The discrepancy in number is due to the fact that sixteen rolls were recovered, but the manager stated that the inventory checks revealed seventeen rolls were in fact missing.


author: DALLY, Commissioner.

text:
    Ray Castanieda VASQUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 50800.
    Court of Criminal Appeals of Texas.
    Jan. 21, 1976.
    Rehearing Denied Feb. 11, 1976.
    Ricky Smith, Lamesa, Court appointed, for appellant.
    Joe Smith, Dist. Atty., Seminole, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst., State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of murder; punishment was assessed by the jury at imprisonment for 99 years.

The appellant challenges the sufficiency of the evidence; he also asserts the trial court erred (1) in overruling his motion to suppress evidence obtained by an alleged unlawful search and an alleged unlawful arrest; (2) by making an alleged improper reference to the indictment in the charge on guilt or innocence; and (3) in admitting photographs of the body of the deceased. We will first consider the sufficiency of the evidence.

At approximately 10:30 p. m. on February 4, 1975, the appellant, his brother Faustino Vasquez, Jr., and the deceased stopped at the Lamesa “66” Truck Stop south of Lamesa. Faustino attempted to cash a check, but the owner of the truck stop refused to accept the check. Two employees at the truck stop, both of whom knew the deceased, identified the appellant as one of the two men with the deceased; they also testified that the appellant and Faustino had been to the truck stop on the previous night in the same car to repair a flat tire.

Shortly before 11:00 p. m. on February 4, 1975, Deputy Sheriff Jim Nance, Charles Varner and Bruce Savage were patrolling the airport in Nance’s patrol car. As they started to leave the airport, Nance noticed a car approaching the intersection at a high rate of speed; he backed up and waited for the car to approach. The car slowed as it neared and passed through the intersection. Nance recognized the car as a 1965 Dodge that he had owned and had sold a few weeks before. Nance followed the car and saw that there were two persons seated on the front seat; he could not identify either person but did note that the car pulled into a farmhouse where appellant’s uncle lived.

Shortly after 11:00 p. m., Nance received a report from the police dispatcher that a body had been found in the road near the airport. Arriving at the scene where the body was reported, he found the nude body of the deceased; her clothes were found in an adjacent field. The deceased’s feet were bound with a zipper torn from her clothes and her hands had apparently been bound in the same manner, but the latter binding had broken loose. The deceased had been run over by a car; there were tire markings on her body. Deputy Nance was joined by Sheriff Kinnison and the two officers made plaster casts of the tire tracks leading to the body.

After leaving the location where the body had been discovered, Sheriff Kinnison, accompanied by Judge Nelson, a Dawson County Justice of the Peace, stopped at the Lamesa “66” Truck Stop for gas and while there learned that the deceased, the appellant and his brother had been in earlier that same evening in a car that matched the description of the one seen near the airport by Deputy Nance. It was learned from the man Nance had sold the car to that he had in turn sold it to Faustino Vasquez, Jr.

After a city policeman had taken Judge Nelson home, Sheriff Kinnison, Deputy Nance and Leroy Bowens, one of the Lame-sa “66” Truck Stop employees who had earlier seen the deceased, the appellant and his brother together, proceeded to the home of the appellant’s parents. The officers had neither a search warrant nor an arrest warrant when they arrived at the home of the appellant’s parents. They stood in an alley adjacent to the backyard of the property and studied the automobile. Bowens identified the automobile as the same one he had seen earlier in the evening. From the alley the officers saw what appeared to be blood on the chrome stripping on the driver’s side of the automobile and that both tires on the driver’s side had been wiped with a circular motion.

The officers knocked at the door of the Vasquez home and asked to speak to the appellant and his brother; Mr. and Mrs. Vasquez invited the officers in. The appellant and his brother were then taken into custody for further investigation and interrogation. The officers subsequently returned and picked up the Dodge automobile from the Vasquez’s house. What appeared to be mud, blood and hair was found stuck to a bolt underneath the automobile; vomit was found inside the right rear door. Drawings made of the tire tracks at the scene of the commission of the offense matched the tires on the Vasquez automobile; the tires on the car also matched plaster casts made by Sheriff Kinnison and Deputy Sheriff Nance of the tracks leading to the body of the deceased.

Davis Legg, a chemist-toxicologist with the Department of Public Safety, testified that scrapings from three spots underneath the Vasquez car contained human blood, Type O; a blood sample from the deceased revealed that she had Type 0 blood. Legg further stated that a hair sample from the deceased was similar to that contained in two scrapings from the tailpipe clamp bolt and a front mount of the Vasquez car; he testified that in his opinion the hair samples could all have had a common origin.

The circumstantial evidence is sufficient to support the jury’s verdict.

The appellant next contends that the search of the car conducted by the officers was unlawful and that the fruits thereof should have been suppressed. Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), involved circumstances much the same as those presented by the instant case. There, with probable cause and without a search warrant, officers took paint scrapings from the fender of the accused’s impounded car; they also made comparisons between the tread on the car’s tires and the cast of a tire impression made at the scene of the crime. The Court began by noting that there is a lesser expectation of privacy in an automobile:

“One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.” 94 S.Ct. 2464, at 2469.

However, it was also cautioned that:

“This is not to say that no part of the interior of an automobile has Fourth Amendment protection; the exercise of a desire to be mobile does not, of course, waive one’s right to be free of unreasonable government intrusion. But insofar as Fourth Amendment protection extends to a motor vehicle, it is the right to privacy that is the touchstone of our inquiry.” 94 S.Ct. 2464, at 2470.

After noting that nothing from the interior of the car had been searched or seized and introduced into evidence, the Court continued as follows:

“With the ‘search’ limited to the examination of the tire on the wheel and the taking of paint scrapings from the exteri- or of the vehicle left in the public parking lot, we fail to comprehend what expectation of privacy was infringed.”
“Under circumstances such as these, where probable cause exists, a warrant-less examination of the exterior of a car is not unreasonable under the Fourth and Fourteenth Amendments.” 94 S.Ct. 2464, at 2470.

The appellant was observed at the Lame-sa “66” Truck Stop in the company of the deceased shortly before her death; the car in the backyard of appellant’s parent’s home was identified as the same one in which the appellant and the deceased had been observed at the truck stop. The same car in which the appellant and deceased were observed at the truck stop was seen by Deputy Sheriff Nance in the vicinity of the commission of the offense shortly before the offense was reported; Deputy Nance further observed the car entering a farm on which appellant’s uncle resided. From the alley behind the Vasquez home the officers observed what appeared to be blood and hair on the car and that the tires on the driver’s side had been wiped with a circular cleaning motion. There existed probable cause to search the vehicle; in light of Cardwell v. Lewis, supra, the war-rantless seizure and examination of the exterior of the car were not improper and the fruits of that warrantless examination were properly admitted into evidence.

The only evidence produced from an examination of the car’s interior was vomit on the inside of the right rear door. A picture of the vomit along with a picture of a like substance found near the body of the deceased were admitted into evidence; however, no chemical analysis or attempt to connect the two was made.

The evidence in the record before us points overwhelmingly to the guilt of the appellant. The error, if any, in the admission of the photographs of vomit, is relegated to the category of harmless error. This determination is made in light of all the admissible evidence. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). See also, United States ex rel. Stanbridge v. Zelker, 514 F.2d 45 (2d Cir. 1975); Clay v. State, 518 S.W.2d 550 (Tex.Cr.App.1975); Bridger v. State, 503 S.W.2d 801 (Tex.Cr.App.1974); Hampton v. State, 511 S.W.2d 1 (Tex.Cr.App.1974). This ground of error is overruled.

Appellant next asserts that his arrest was unlawful and that the fruits thereof should have been suppressed. Assuming arguendo that appellant’s arrest was unlawful, we nonetheless find that a reversal of his conviction is not required. The inculpa-tory evidence which was admitted in evidence was not seized in a search incident to arrest; therefore, the illegality of appellant’s arrest does not serve to taint the evidence. Since there were no fruits of the illegal arrest, the error does not require reversal of the conviction. Stiggers v. State, 506 S.W.2d 609 (Tex.Cr.App.1974); Gross v. State, 493 S.W.2d 791 (Tex.Cr.App. 1973); Frazier v. State, 481 S.W.2d 857 (Tex.Cr.App.1972); Maldonado v. State, 528 S.W.2d 234 (Tex.Cr.App.1975), footnote # 4. This ground of error is overruled.

Appellant next contends that the trial court erred in “referring to the indictment in its charge to the jury in such a

manner as to give evidential quality to the indictment.” The jury was instructed that they must “believe from the evidence beyond a reasonable doubt” that the appellant committed the offense “as alleged in the indictment.” The jury was further instructed that the indictment was not to be considered evidence of the appellant’s guilt. The court did not err in submitting the case as he did. This ground of error is overruled.

Appellant lastly asserts that the trial court erred in admitting gruesome photographs of the deceased. These photographs were pertinent to the injuries suffered by the deceased and to a description of the place where the offense was committed. “So long as the pictures accurately represent what they purport to depict and are logically relevant, their gruesome and prejudicial character does not cause them to be inadmissible.” Brantley v. State, 522 S.W.2d 519 (Tex.Cr.App.1975). See also, Brown v. State, 508 S.W.2d 91 (Tex.Cr.App.1974); Sloan v. State, 515 S.W.2d 913 (Tex. Cr.App.1974); Terry v. State, 491 S.W.2d 161 (Tex.Cr.App.1873); Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972). This ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.


author: ROBERTS, Judge.

text:
    Leonard Randolf PAGE, Appellant, v. The STATE of Texas, Appellee.
    No. 50788.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1976.

      Jack Richards, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell and Stu Stewart, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S.McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for robbery by assault under our former code. Punishment was assessed by the jury at twenty-five years.

In Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973) (case 1), and Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975), we held, in accord with well-established authority, that a robbery indictment which failed to allege to whom the property allegedly taken belonged was fundamentally defective.

The indictment in this case, like the ones in Lucero and Bouie, fails to allege such ownership in any individual and thus fails to show that the complainant had a posses-sory interest in the property that was superior to that of the appellant. Smedly v. State, 30 Tex. 214 (1867), quoted with approval in Goodrum v. State, 172 Tex.Cr.R. 449, 451, 358 S.W.2d 120, 122 (1962). See also Arline v. State, 529 S.W.2d 73 (Tex.Cr.App.1975); French v. State, 531 S.W.2d 613 (Tex.Cr.App.1975); Ainsworth v. State, 531 S.W.2d 613 (Tex.Cr.App.1975); Batro v. State, 531 S.W.2d 614 (Tex.Cr.App.1975).

The judgment is reversed and the prosecution is ordered dismissed.

      . On January 13, 1976, the Clerk of this Court accepted and filed a supplemental transcript in this case. It contains an order signed by the trial judge granting a new trial to the appellant pursuant to Art. 40.09, Sec. 9, Vernon’s Ann.C.C.P. This order is dated November 25, 1975, more than three months after the original record was filed in this Court. The trial judge therefore had no jurisdiction to grant a new trial. Art. 44.11, V.A.C.C.P.; Montes v. State, 503 S.W.2d 241 (Tex.Cr.App.1974); Carrillo v. State, 480 S.W.2d 612 (Tex.1972). Compare State ex rel. Vance v. Hatten, 508 S.W.2d 625 (Tex.Cr.App.1974). The order granting a new trial is therefore void. Montes v. State, supra.
      The supplemental transcript also contains a motion for dismissal of the appeal, signed only by the appellant’s attorney. Such a motion is insufficient and must be denied, since a motion to dismiss the appeal must be executed by the appellant in person and properly authenticated. See, e. g., Gilliam v. State, 146 Tex.Cr.R. 620, 177 S.W.2d 782 (1944).


author: DOUGLAS, Judge.

text:
    Solomon Medrano GONZALES, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 50797.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1976.

      Nathan P. Hoffman, Court appointed on appeal, Victoria, for appellant.
    Robert J. Seerden, Dist. Atty., Victoria, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction of attempted murder. The jury assessed an enhanced punishment of seventy-five years.

The sufficiency of the evidence concerning the appellant’s intent is challenged.

On the night of August 25, 1974, appellant shot Paul Chavez, Jr., a five-year-old child. This occurred in the one room living section of a used furniture store in Victoria. Paul Chavez, Sr., the father of the victim, testified that immediately before the shooting he was lying on the bed talking on the phone and playing with three of his children. While Chavez was still on the phone, the appellant, whom Chavez had known for about eleven years, came to the front door of the living area, entered the room and pulled a small pistol from his pocket. Chavez told the appellant to put the pistol back in his pocket which the appellant did. Chavez asked the appellant if the gun was real. The appellant answered, “No, look.” At that point, Chavez got up and turned around to hang up the phone. When he turned, he saw the appellant shoot his son in the head. After firing the gun, the appellant said, “when I do something like this, I have to leave” and fled the building.

A little after 9:00 p. m. on the same evening, the appellant was arrested outside a club in Victoria for illegally carrying a gun on a licensed premise. He had attracted the attention of the club’s security officers when they saw him get out of his car and go over to another car while talking loudly and waving his arms. In one hand he held a pistol. This pistol was later identified as the same one used in the Chavez shooting.

The driver who had been confronted by the appellant in the parking lot testified that the appellant appeared angry, but not crazy or drunk. The arresting officer testified that though the appellant may have been drinking, he was lucid enough to ask why he had been placed under arrest and to say that he did not have to be advised of his rights because he understood them.

The appellant testified that he had been drinking heavily before the incident and could not remember going to Paul Chavez’s or taking part in a disturbance at a club. The appellant also testified that he had a five to six year history of epilepsy as a child and still suffered from periodic bouts with headaches.

The appellant argues that the evidence is insufficient to show that he had the mental capacity, culpability or intent to commit attempted murder. We find that there is sufficient evidence for a jury to reasonably conclude that the appellant was aware of the nature of his conduct and was aware that the shooting of a person in the head would, to a reasonable certainty, result in the death of that person. See Canedy v. State, 507 S.W.2d 743 (Tex.Cr.App.1974); Lombardo v. State, 503 S.W.2d 780 (Tex.Cr.App.1974); Lindsey v. State, 501 S.W.2d 647 (Tex.Cr.App.1973); and V.T.C.A. Penal Code, Section 6.03.

He contends that the trial court erred in not appointing co-counsel or a different attorney in his case when the appellant expressed dissatisfaction with his appointed counsel. His complaint was made immediately before the selection of the jury.

Article 26.04, V.A.C.C.P., requires that a trial court appoint one or more attorneys for the defense. A trial judge is under no duty to search for an attorney agreeable to the defendant. Viges v. State, 508 S.W.2d 76 (Tex.Cr.App.1974). This Court has also held that the right to counsel cannot be insisted upon in such a way as to obstruct the orderly administration of justice. Rodriquez v. State, 530 S.W.2d 944 (1975). The appellant’s request came just before the trial and no showing was made of how the appellant did not receive adequate representation of counsel. The trial court did not err in refusing to grant the appellant’s request for another attorney.

In his third ground of error, the appellant contends that the trial court erred in not submitting a charge on “attempted involuntary manslaughter.” The jury was instructed as to the law of attempted murder and aggravated assault.

The statute defines involuntary manslaughter as a reckless act. V.T.C.A., Penal Code, Section 19.05. For an offense to amount to a criminal attempt there must be a specific intent to commit the offense. V.T.C.A., Penal Code, Section 15.01(a), Criminal Attempt, provides:

“A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.”

Attempted involuntary manslaughter would be a contradiction in terms under the new penal code. Involuntary manslaughter negates any specific intent to kill. One cannot intend to “involuntarily” kill another. We hold that the court did not err in refusing to submit a charge on “attempted involuntary manslaughter.” There is no offense of “attempted involuntary manslaughter.”

In grounds of error four through seven, the appellant complains of the admission into evidence of two photographs of the dwelling area taken soon after the shooting on the grounds that these exhibits were irrelevant, prejudicial and improperly authenticated. Before admission of the photographs, Paul Chavez, Sr., testified that the photographs were a true depiction of the room when the shooting occurred.

Generally photographs showing the scene of a crime are admissible where a verbal description of the scene would be admissible. Such photographs help the jury understand the testimony given at the trial. Sloan v. State, 515 S.W.2d 913 (Tex.Cr.App.1974); Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972).

It is enough that a witness of his personal knowledge identifies the photographs as an accurate portrayal of the facts. Haas v. State, 498 S.W.2d 206 (Tex.Cr.App.1973). Chavez’s testimony was sufficient authentication in this case. The trial court did not err in admitting the two photographs.

Appellant’s grounds of error eight through ten deal with several remarks made by the prosecution. No objection was made concerning these arguments. None of the arguments were so prejudicial that any harm could not have been cured by instruction. Nothing is presented for review. Arivette v. State, 513 S.W.2d 857 (Tex.Cr.App.1974).

In ground of error eleven, appellant argues that the cumulative effect of the preceding ten errors was such that he was denied a fair and impartial trial. We hold that the arguments complained of in this case do not render the trial unfair.

In grounds of error twelve through fourteen, the appellant takes issue with the method used to prove a prior conviction for the purpose of enhancement. The district clerk of Victoria County testified concerning the appellant’s conviction for burglary in Victoria County. The county’s chief probation officer testified that the appellant was the same Solomon Gonzales, Jr., he had advised about probation restrictions while the appellant was on probation for the same burglary. No objection was made to this method of proof. Nothing is presented for review. See Carter v. State, 506 S.W.2d 876 (Tex.Cr.App.1974).

Finding no reversible error, the judgment is affirmed.


author: GREEN, Commissioner.

text:
    Lester Jewell GLOVER, Appellant, v. The STATE of Texas, Appellee.
    No. 50914.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1976.
    Rehearing Denied Feb. 25, 1976.
    John R. Duren and Jerry B. Donaldson, James R. Thompson and B. C. Jones, Cop-peras Cove, for appellant.

      Martin D. Eichelberger, Dist. Atty., Gary Coker and Lynn Malone, Asst. Dist. Attys., Waco, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of the misdemeanor offense of failure to appear. See V.T.C.A. Penal Code, Sec. 38.11(a). Punishment was assessed at a fine of $500 and a year in jail, probated.

Appellant in his brief raises several contentions based upon evidence allegedly developed at the trial. However, the transcription of the court reporter’s notes of the evidence and other proceedings at the trial, although timely delivered to retained defense counsel, were not filed in the trial court within a period of ninety days after notice of appeal was given. See Art. 40.09, Sec. 3,'V.A.C.C.P. No order for an extension of time within which to file same appears in the record. Under the circumstances we sustain the contention of the State that the statement of facts as prepared by the court reporter is not properly before us for our consideration. See Appleman v. State, 531 S.W.2d 806 (Tex.Cr.App., 1975); Dart v. State, 515 S.W.2d 119 (Tex.Cr.App.).

In his second ground, appellant contends that the trial court erred in failing to grant his motion for legislative continuance. We shall consider this contention insofar as the facts pertinent thereto appear in the transcript, which is properly on file in this Court.

This trial took place March 24, 1975. The transcript contains a motion for continuance signed by Jerry (Nub) Donaldson as “Attorney for Defendant,” filed in this case March 24,1975. Accompanying this motion is an affidavit of Jerry (Nub) Donaldson, duly sworn to, which, omitting the style and number of the case, reads as follows:

“AFFIDAVIT FOR CONTINUANCE
“TO THE HONORABLE JUDGE OF SAID COURT:
“COMES NOW Jerry (Nub) Donaldson, attorney for the Defendant LESTER JEWEL GLOVER, and files this his Affidavit for Continuance in the above styled and number (sic) cause and in respect thereof would respectfully show unto the Court as follows:
“That Jerry (Nub) Donaldson, attorney for the Defendant is a member of the Texas House of Representatives and is or will be within 30 days in actual attendance on a Session of the same.
“That Jerry (Nub) Donaldson has participated in the preparation of this case and intends to actively participate in the presentation of this case; and
“That Jerry (Nub) Donaldson was employed in this case on or about 11-27-74, which time is not within 10 days of the date such suit is set for trial.
/s/ Jerry Nub Donaldson
JERRY (NUB) DONALDSON”

Although the transcript does not contain an order overruling the motion, the docket sheet discloses that it was brought to the court’s attention on March 24 prior to the case going to trial.

Art. 2168a, V.A.Tex.Civ.Stats., as amended by Acts of the 63rd Legislature effective August 27, 1973, provides:

“In all suits, either civil or criminal, or in matters of probate, pending in any court of this State, and in all matters ancillary to such suits which require action by or the attendance of an attorney, including appeals but excluding temporary restraining orders, at any time within thirty (30) days of a date when the Legislature is to be in Session, or at any time the Legislature is in Session, or when the Legislature sits as a Constitutional Convention, it shall be mandatory that the court continue such cause if it shall appear to the court, by affidavit, that any party applying for such continuance, or any attorney for any party to such cause, is a Member of either branch of the Legislature, and will be or is in actual attendance on a Session of the same. If the member of the Legislature is an attorney for a party to such cause, his affidavit shall contain a declaration that it is his intention to participate actively in the preparation and/or presentation of the case. Where a party to any cause or an attorney for any party to such cause is a Member of the Legislature, his affidavit need not be corroborated. On the filing of such affidavit, the court shall continue the cause until thirty (30) days after the adjournment of the Legislature and such affidavit shall be proof of the necessity for such continuance, and such continuance shall be deemed one of right and shall not be charged against the party receiving such continuance upon any subsequent application for continuance. It is hereby declared to be the intention of the Legislature that the provisions of this Section shall be deemed mandatory and not discretionary.
“Notwithstanding the foregoing, the right to such continuance, where such continuance is based upon an attorney in such cause being a member of the Legislature, shall be discretionary with the Court in the following situations and under the following circumstances, and none other, to wit:
“(1) Where such attorney was employed within 10 days of the date such suit is set for trial.”

In Cuellar v. State, 521 S.W.2d 277, in applying Art. 2168a prior to its amendment in 1973, we said:

Article 2168a is mandatory by its terms and by interpretation by this Court. King v. State, 160 Tex.Cr.R. 556, 273 S.W.2d 72 (1954). See also Mora v. Ferguson, 145 Tex. 498, 199 S.W.2d 759 (1947). The statute is specific in providing that the court must continue the cause if it ‘shall appear to the court, by affidavit,’ that (1) the attorney for any party to that cause is a member of the Legislature, and (2) such a member will be or is in actual attendance of a session of the Legislature. Further, the statute states, ‘on the filing of such affidavit, the court shall continue the cause . and such affidavit shall be proof of the necessity for such continuance . . . .’ The only requirement within the statute is an affidavit setting forth the above enumerated items.”

The statute as it was in effect at the time of the instant trial is no less mandatory by its terms than it was when construed in Cuellar, supra.

We take judicial notice of the fact that the 64th Legislature of the State of Texas convened January 5, 1975, and adjourned June 2, 1975, and that it was in session on March 24, 1975, when the instant case was in trial. We likewise take judicial notice that the Honorable Jerry Donaldson was the duly elected Representative from the 34th Legislative District of Texas at this session.

The court reversibly erred in failing to grant the motion for a continuance. Cuel-lar v. State, supra.

The judgment is reversed, and the cause is remanded.

Opinion approved by the Court.

      . “(a) A person lawfully released from custody, with or without bail, on condition that he subsequently appear commits an offense if he intentionally or knowingly fails to appear in accordance with the terms of his release.”


text:
    Darryl Elroy STEWART, Appellant, v. The STATE of Texas, Appellee.
    No. 50966.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1976.
    Francis L. Williams, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell and George 0. Jacobs, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for aggravated robbery; the punishment is imprisonment for 6 years.

The evidence is that the appellant and another man committed the robbery; the other man exhibited a gun during the robbery. The jury was charged on the theory of principals.

The appellant does not challenge the sufficiency of the evidence, and in his one ground of error he urges that “the trial court abused its discretion by overruling defendant’s objection and exception to the charge of the court . . .”

The appellant complains of the court’s definition of the term “deadly weapon.” Specifically the appellant argues:

“In the case at Bar the record and the evidence does not show nor was any evidence introduced to prove that the gun exhibited by the unknown person allegedly with Appellant was a deadly weapon. The record is absent of any proof whatsoever as to whether the said gun was designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or that there was anything in the manner of its use or intended use was capable of causing death or serious bodily injury.”

The court charged the jury “by the term ‘deadly weapon’ is meant a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” See V.T.C.A. Penal Code, Sec. 1.07(a)(ll).

Although the court might merely have charged that the term “deadly weapon” includes a firearm without instructing on the rest of the definition, we perceive no harm that resulted from giving the full statutory definition of a deadly weapon. See Rodriguez v. State, 166 Tex.Cr.R. 86, 311 S.W.2d 412 (1958). The court also instructed the jury that before the appellant could be convicted of aggravated robbery it would have to find beyond a reasonable doubt that during the robbery a pistol was exhibited and that it was a deadly weapon. The evidence concerning exhibiting a gun in this case is sufficient to show that a firearm was exhibited. A firearm is by definition a deadly weapon.

The appellant’s ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.


author: CADENA, Justice.

text:
    CITY OF SAN ANTONIO, Appellant, v. Gasper MENDOZA, Appellee.
    No. 15336.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 17, 1975.
    Rehearing Denied Jan. 21, 1976.

      Crawford B. Reeder, City Atty., Jane Haun Macon and Edgar A. Pfeil, Asst. City Attys., San Antonio, for appellant.
    Leslie S. Mendelsohn, San Antonio, for appellee.
   CADENA, Justice.

The City of San Antonio, defendant below, appeals from a judgment awarding plaintiff, Gasper Mendoza, $55,000.00, including $30,000.00 for impairment of future earning capacity, as compensation for injuries received by him when a tractor-mower which he was operating in discharge of his duties as a City employee burst into flames.

The answers to the special issues were as follows (the numbers in parentheses correspond to the numerical designation of the special issue embodying the finding preceding the parentheses):

a. City’s failure to provide “preventive maintenance” for the wiring on the tractor mower (1) constituted negligence (2) proximately causing plaintiff’s injuries (3).

b. City’s act of providing plaintiff with a tractor which would permit gasoline to leak from the gas tank (4) was negligence (5) which proximately caused plaintiff’s injuries (6).

e. City’s failure to warn plaintiff that the gasoline cap on the equipment permitted gasoline to leak from the gasoline tank (7) constituted negligence (8) which was a proximate cause of plaintiff’s injuries (9).

d. An issue (10) inquiring whether the wiring on the equipment was faulty was answered in the negative. Because of such negative answer, issues 10a, 11 and 12, relating to failure to warn, negligence and proximate cause, were not answered.

e. City failed to promulgate rules and regulations for the safety of its employees (13), but such failure, although constituting negligence (14), was not a proximate cause of plaintiff’s injuries (15).

f. Plaintiff should recover $5,000.00 for past mental anguish (16a); $10,000.00 for future mental anguish (16b) and paid $30,-000.00 for loss of future earning capacity (16c); $7,500.00 for physical impairment and disfigurement (16d); and $2,500.00 for future medical expenses.

City’s second point asserts that the trial court erred in submitting issue 1, inquiring whether City failed to provide preventive maintenance for the wiring, over City’s timely objection that there were no pleadings to support the submission of such issue. We find no objection aimed specifically at the submission of issue 1 because of lack of pleadings. There is in the record an objection “to each one” of the issues on the ground that there is no evidence and no pleading “to support the submission of any one of plaintiff’s issues No. 1 through the final one.” Such an objection is too broad to be considered. Monsanto Company v. Milam, 494 S.W.2d 534, 537 (Tex.1973).

In its third point City argues that the trial court erred in overruling City’s objection that “the charge . . . fails to inquire whether the condition [leaking gasoline tank cap] inquired about in primary negligence issues nos. 4 and 7 had existed long enough for the City to have knowledge of it and time to repair it. . . .”

This point purports to be based on paragraph 35 of City’s motion for new trial. This assignment of error complains of the submission of issues 1, 4, 7 and 13 for eight different reasons. Thus, this one assignment of error complains of 32 different rulings. It is clearly multifarious and insufficient to preserve for appellate review the ruling complained of in point 3. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957); Tex.-Wash. Enterprises, Inc. v. Robna, Inc., 488 S.W.2d 504 (Tex.Civ.App.—Waco 1972, writ ref’d n. r. e.). Texas appellate courts have displayed an inclination to consider multifarious points of error in briefs where, from the statement and argument under such points, the gist of the complaint can be determined. But there has been no indulgence in such liberality in determining the sufficiency of assignments of error in motions for new trial. Texas Indemnity Insurance Company v. Warner, 159 S.W.2d 173, 179 (Tex.Civ.App.—Texarkana 1942, writ ref’d w. o. m.).

We agree with plaintiff that City’s points 9 and 10, which raise the question of the sufficiency of the evidence to support the verdict, and the sufficiency of the pleadings, evidence and verdict to support the judgment are based on assignments of error in City’s motion for new trial which are too general to justify our consideration of such points. However, point 8, which insists that there is insufficient evidence to support the jury’s answers to the first nine issues is based on sufficient assignments of error in the motion for new trial. Further, the question of “no evidence” to support findings 1-9 was properly preserved by City’s motion for judgment n. o. v. We will, therefore, consider the questions of factual and legal sufficiency of the evidence.

Plaintiff began working for City as a laborer on August 18, 1966, and was promoted to the position of equipment operator on May 4, 1968. On the date of the accident, July 24, 1968, plaintiff was a member of a weed-mowing crew, and his normal duties consisted of driving a truck. The actual mowing or cutting of weeds was done by other members of the crew, with plaintiff working ahead of the mowers, removing rocks and other objects which might interfere with proper operation of the mowing machines. On the day of the accident plaintiff performed such duties until noon. After lunch, because of the absence of one of the regular mower operators, plaintiff was directed by his foreman, Benito Vasquez, to operate one of the tractor mowers, identified in the record as mower no. 588. This equipment consisted of a tractor to the rear of which was attached the mowing machinery.

Prior to the day of his injury, plaintiff had occasionally operated a tractor-mower for a total of about five or six hours, but there is evidence to the effect that he was not “experienced” in the operation of such equipment. There is evidence to the effect that plaintiff received “on-the-job training” in the operation of such equipment, but plaintiff testified that he received no instructions, other than being cautioned about attempting to mow on inclines or slopes because of the danger that the mower might roll over. Plaintiff had never operated mower no. 588 before and did not know that gasoline leaked from the gasoline tank cap. No one told him of this danger, nor had he ever heard anyone mention the fact that any of the mowers leaked gasoline.

Plaintiff started the tractor and proceeded to drive to the area where he was supposed to mow. After he had been operating the mower for about 30 minutes he heard his foreman whistling. Looking back, he saw the foreman motioning for him to “come back.” He began backing up, looking to the rear to see where he was going and to make sure that the mowing equipment attached to the rear of the tractor remained in proper alignment. While backing up and looking to the rear, “all of a sudden he felt something on his legs.” When he turned his head to the front he saw that the tractor was enveloped in flames. The terrain was rough and full of holes, and the nature of the terrain caused the tractor to shake and vibrate. The testimony is conflicting as to whether or not plaintiff, at the time he was called by the foreman, was attempting to mow on a slope or incline, but the testimony establishes that when the tractor burst into flames it was on level ground. Plaintiff testified that he did not know what caused the fire. He saw gasoline leaking from the gasoline tank cap, which was located to the front, and below the knees, of the person operating the tractor.

Another City employee testified that he had operated mower no. 588 on various occasions, the last time being some three months before plaintiff’s accident, and that after the mower had been in operation for about 30 or 45 minutes it would begin to leak gasoline from the gasoline tank cap. Gasoline leaked from the bottom of the cap as well as from the “breather hole” on top of the cap. The last time he operated this mower he had to pour water on it because the wires were “smoking.” He reported this incident to the foreman and also told the foreman that gasoline leaked from the gasoline tank cap.

A City employee who had operated the mower about a week before plaintiff’s injury testified that when the mower was operated over rough terrain the gasoline tank cap would “get loose” and gasoline would leak.

Plaintiff’s foreman, Vasquez, who had been a City employee for about seven years, testified that the mowers had been leaking gasoline ever since he had begun working for City, and that all mower operators complained of gasoline leakage. Some mowers had been leaking gasoline for about six months before plaintiff was injured.

On the day plaintiff was injured mower no. 588 was about seven years old. The gasoline tank cap on such mowers is equipped with a gasket to insure that the tank cap fits snugly enough to prevent leakage of gasoline. Such gaskets could reasonably be expected to wear out in three or four years. When the gasket wore out, the cap would become loose and gasoline would leak from the cap.

City’s repair and maintenance shops performed only “minor maintenance” on the mowers. This did not include changing gasoline tank caps or the gaskets on such caps. Other repairs and maintenance work on such tractors was performed at the shops of the San Antonio Transit System, pursuant to a contract between City and the Transit System. The Transit System did only such work on City equipment as was requested in writing by City. The Transit shop records reflect that although mower no. 588 had been taken to the Transit shops several times prior to plaintiff’s injury, neither the gasoline tank cap nor the gasket had ever been changed. One of the City supervisors testified that it was the responsibility of the mower operators to insure that, after the tractor tank had been filled with gasoline, the cap was screwed back on tightly. The tractors were normally filled with gasoline in the morning, and there is no evidence that plaintiff was operating the tractor at the time of such refueling. There is also evidence to the effect that the mower operators were expected to check the caps and change them when necessary.

Plaintiff’s foreman reported the accident to his own supervisor, as he was required to do, telling the supervisor that plaintiff was injured when sparks ignited gasoline which had leaked from the gasoline tank cap. The written report filed by the foreman’s supervisor, in accordance with City rules, stated that plaintiff was injured when gasoline “suddenly ignited.” In answer to written interrogatories, City listed “ignition of gasoline” as the cause of plaintiff’s injuries.

There is evidence to the effect that plaintiff smoked cigarettes, but there is no hint in the record that plaintiff was smoking at any time while operating the mower.

The evidence is ample to support the finding that City furnished plaintiff a mower with a gasoline tank cap which would permit gasoline to leak (issue 4) and failed to warn him of such defect (issue 7).

City argues that a finding that the gasoline tank cap “would permit” gasoline to leak is not a finding that, on the occasion in question, gasoline did, in fact, leak from the cap. In this connection City states in its brief that, despite City’s objection, the trial court failed to include in the charge an issue inquiring whether the cap was leaking at the time of the accident. City’s brief does not refer us to that portion of the transcript in which the claimed defect was called to the attention of the trial court. Paragraph 27 of City’s motion for new trial asserts that the trial court erroneously overruled City’s objections to issue 6 for several reasons, including the contention that “as a matter of law, it was not a proximate cause, because no causal connection is shown between a tractor-mower with a gas cap that ‘would permit’ gasoline to leak . . . and the accident in question.” No such objection was made to the submission of issue 6 and, in any event, the objection raises the question of no evidence to support the submission of the issue, rather than calling the court’s attention to the omission of an issue.

Issues 4, 5 and 6 must be considered as, at the very least, a partial submission of one of plaintiff’s theories of recovery. Thus, even if it can be reasonably argued that the answers to the issues actually submitted do not fortuitously include a finding that gasoline did, in fact, leak and become ignited, we may properly presume that, under Rule 279, Tex.R.Civ.P. (1967), the trial court impliedly made the required finding. 8 McDonald, Texas Civil Practice, Section 12.36.7 (1970 rev.).

We cannot accept City’s contention that there is no evidence that the defect had existed for a length of time sufficient to enable City to discover and remedy it. There is evidence to the effect that mower no. 588 was leaking gasoline one week before the accident, three months before the accident and, according to the foreman, all mowers had been leaking gasoline for years, a condition about which the mower operators constantly complained. The evidence also supports the conclusion that no corrective action was ever taken, particularly as to mower 588.

We consider next the question of causation. The evidence certainly supports the conclusion that plaintiff was injured as the result of the ignition of gasoline. The defective cap created the danger of injury resulting from the ignition of leaking gasoline. There was a danger of fire and there was fire. There was danger of injury resulting from fire and there was injury resulting from fire. The injury, thus, resulted from fire traceable to the foreseeable risk created by the defect. The fact that the jury refused to find, in answer to issue 10, that the wiring was defective is irrelevant. There is evidence that in the course of the normal operation of the mowers sparks were emitted due to conditions other than defective wiring. There is evidence that, because of the location of the gasoline tank, leakage would result in the presence of uncovered gasoline near parts of the motor which, in the normal operation of the equipment would become hot enough to ignite such gasoline. We know of no rule which would require plaintiff to show the source of the spark or other ignitive agent which transformed the risk of fire and personal injury into actual fire and injury.

Since plaintiff’s right to recover is supported by the answers to issues 4, 5, 6, 7, 8 and 9, the question of whether there is any evidence to support the answers to issues 1, 2 and 3 becomes irrelevant. The same is true of plaintiff’s contention that there is an irreconcilable conflict between the answer to issue 10 and the answers to the first three issues. In any event, the assertation of such a fatal conflict, embodied in City’s point 7 was not included as an assignment of error in City’s motion for new trial. Conflict of jury findings must be assigned as error in the motion for new trial. Barrow, Conflicts in Jury Findings, 26 Tex.B.J. 23, 81 (1963). Point 7 purports to be based on paragraph 42 of the motion for new trial which complains of the trial court’s failure to grant City’s motion to disregard the jury findings and to render judgment n. o. v. for City “for each of the reasons set forth in said Motion.” This cannot be interpreted as even suggesting the existence of conflicting answers to special issues. Its reference to what is essentially a request that judgment be rendered for City despite the jury’s findings is, in fact, misleading, since conflicting jury answers cannot form the basis for judgment for any party.

In support of its motion for judgment n. o. v., City argues that even if the findings relating to causal negligence find support in the evidence, it is entitled to judgment because the evidence conclusively establishes that plaintiff’s injuries resulted from the negligence of his fellow-employees.

The fellow servant doctrine is clearly an affirmative defense. Rule 94, Tex.R.Civ.P. (1967). It was City’s burden not only to plead the defense, as it did, but also to establish its component factual elements by a preponderance of the evidence. Since no issues referable to the defense were submitted, it was waived unless the evidence established its applicability as a matter of law.

City concedes that the duty of a master to exercise reasonable care to furnish his servants suitable machinery, equipment and appliances to enable the servants to perform their duties with reasonable safety is a nondelegable duty, and that where the master has breached this nondelegable duty the fellow-servant doctrine is not available to the master as a defense. Fort Worth Elevators Company v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934). However, City contends that the nondelegable duty rule is inapplicable here and that it is entitled to assert the defense under the “simple tool” exception to the nondelegable duty rule.

The question of whether a particular implement is a simple tool is a question of fact to be resolved by the factfinder. Thus, in Pope v. St. Louis Southwestern Ry. Co. of Texas, 106 Tex. 52, 155 S.W. 1175 (1913), it was said that the question of whether a chisel was or was not a simple tool was a question of fact. In Kientz v. Carlton, 245 N.C. 236, 96 S.E.2d 14, 20 (1957), in a case admittedly involving different facts concerning the cause of the injury, it was said that power mowers, despite their widespread use, could not be held to be simple tools as a matter of law.

Numerous cases involving the simple tool question are collected in 39 Words and Phrases “Simple Tool” pp. 420-27. However, little can be gained by summarizing these holdings. The determination does not depend exclusively on the circumstance that the implement happens to be of a simple character. A court must consider the capacity, intelligence and experience of the servant, the nature of the defect, knowledge of the defect by master or servant, opportunity of master and servant to discover the defect, the circumstances calculated to divert the servant’s attention from the defect, etc. 53 Am.Jur.2d, Master and Servant, Section 189, p. 247.

It certainly cannot be said that the evidence establishes as a matter of law that plaintiff was experienced in the operation of tractor mowers. There is no evidence that plaintiff had knowledge of the defect. There is evidence supporting the conclusion that the master had actual knowledge of the defect. The evidence supports the conclusion that plaintiff did not have a reasonable opportunity to discover the defect, since there is testimony to the effect that the gasoline would not begin to leak until the equipment had been in operation 30 or 45 minutes, and the evidence discloses that at the time of the accident plaintiff had been operating the mower only about 30 minutes. At about the time that the leakage would have become observable, plaintiff’s attention was diverted by the foreman and, in accordance with the foreman’s instructions, plaintiff was operating the mower in reverse, looking to the rear. His attention, therefore, was diverted from the site of the defect, since the gasoline tank was located forward of the operator. City stresses the fact that a gasoline tank cap, which can be tightened simply by turning it by hand, is a simple tool as a matter of law, particularly in view of the fact that plaintiff had worked in gasoline stations and understood the functions of a gasoline cap and the manner of tightening it. In essence, the argument is that a gasoline cap is necessarily a simple tool. This theory would make the nature of the defect conclusive, and would necessarily lead to the conclusion that injury resulting from the explosion of a nuclear reactor is the result of a defect in a simple tool if the cause of the explosion was a loose screw which could have been tightened by the use of a simple screw driver. The nature of the defect is no more conclusive than is the nature of the machinery.

Under all the circumstances in this case, it cannot be said, as a matter of law, that plaintiff’s injury resulted from a defect in a simple tool.

City’s points 1, 4, 5, 6, 7, 8, 9 and 10 do not present reversible error.

We consider next City’s claim that the award of $30,000.00 for impairment of future earning capacity is excessive. Point 11, which asserts that the answer to special issue 16(e), awarding $30,000.00 for loss of earning capacity in the future is excessive to the extent that it shows that it is based on passion, bias and prejudice, purports to be germane to paragraph 36 of City’s motion for new trial. Point 12, contending that the answer to issue 16(c) is so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust, is described as being germane to paragraph 37 of the motion for new trial.

Paragraph 36 states that the answers to 16(a), 16(b), 16(c) and 16(d) are each excessive. This assignment of error complains of four separate factual findings by the jury and appears to be multifarious. Paragraph 37 asserts that such answers are each so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. This assignment is not sufficient to call the trial court’s attention to the claim that the awards of damages are excessive. Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407 (1943).

In any event, the claim of exces-siveness cannot be sustained. The fact that plaintiff, at the time of trial, some five years and four months after the accident, was earning more as a City employee than he was earning at the time of the accident is certainly not decisive. The critical question is loss of earning capacity, rather than loss of earnings. City of Houston v. Holden, 336 S.W.2d 193 (Tex.Civ.App.—Eastland 1960, writ ref’d n. r. e.).

Plaintiff testified that as a result of his injuries he could no longer drive a truck or operative automotive equipment because of the severe pain in his legs. His legs were severely burned, and his superiors testified that he was not performing his work satisfactorily, due to excessive absenteeism. Plaintiff testified that his absences were due to the fact that the severity of the pain forced him to seek medical attention. Since his return to work following his injury, plaintiff has been assigned janitorial duties and, at times, clerical duties. There is expert testimony to the effect that in spelling and arithmetic plaintiff is able to perform only at a fourth grade level, so that in terms of earning capacity he is limited to earning his living as a laborer, either skilled or semi-skilled, not having the intellectual capacity to do bookkeeping, record-keeping, or other clerical duties such as filing or filling out forms. There is medical testimony to the effect that, because of his injuries, plaintiff is unable to perform work requiring prolonged standing or walking for more than one or two hours at a time, and that he should avoid doing even work which required him to sit for long periods of time.

City relies on letters from doctors, addressed City officials, indicating that plaintiff refused to follow medical advice and that he was able to return to his normal duties. There is also testimony from City employees to the effect that plaintiff did not regularly change the bandages on his legs and often worked with dirty bandages or with his pajamas under his trousers. Both plaintiff and his wife testified that he followed the directives of his doctor.

It is clear that the evidence concerning the impairment of plaintiff’s earning capacity was in sharp conflict. This factual issue was properly submitted to the jury and the verdict resolved the issue in plaintiff’s favor. In view of the evidence relating to the severity of plaintiff’s injuries, his diminished capacity to perform physical labor (the only type of labor for which he is fitted in view of his limited education and intellectual ability), and the evidence concerning his unsatisfactory performance of the duties assigned to him after he returned to work following his injury, we cannot say that the award shows that it was the result of passion, prejudice or other improper motive, or that the amount awarded was not the result of a deliberate and conscious conviction in the minds of the jurors, or that the amount awarded is so excessive as to shock a court’s sense of justice. H. E. Butt Grocery Company v. Quick, 442 S.W.2d 798 (Tex.Civ.App.—San Antonio 1969, writ ref’d n. r. e.).

Since we have concluded that the award was not excessive, City’s point 12, asserting as error the failure of the trial court to order a remittitur, must be overruled.

The judgment of the trial court is affirmed.