text:
    Billy Darmon WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 55599.
    Court of Criminal Appeals of Texas, Panel No. 2.
    May 24, 1978.
    Phil L. Adams, court appointed, Dallas, for appellant.
    Henry Wade, Dist. Atty., Ronald D. Hinds and Jim Walker, Asst. Dist. Attys., Dallas, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of aggravated robbery; the punishment is imprisonment for 15 years.

The appellant was identified by an accomplice witness who testified that he and the appellant committed the robbery. The complainant, an employee at a convenience store, identified the appellant as one of the two men who robbed her of $158.00 at the store.

In his sole ground of error the appellant asserts that the trial court erred in allowing the State to bolster an unimpeached witness. The court admitted a photograph of the appellant and permitted the complainant to testify, over objection, that prior to trial she had seen that photograph of the appellant and identified him as one of the men who had robbed her.

A witness who has identified a defendant at trial may testify that prior to trial he identified a photograph of the defendant, or the witness may testify that prior to trial he identified the defendant while the defendant was in custody. E. g. Lyons v. State, 388 S.W.2d 950 (Tex.Cr.App.1965); Ward v. State, 427 S.W.2d 876 (Tex.Cr.App.1968); Frison v. State, 473 S.W.2d 479 (Tex.Cr.App.1971); Jackson v. State, 507 S.W.2d 231 (Tex.Cr.App.1974). The pretrial identification procedure must, of course, meet constitutional standards. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Writt v. State, 541 S.W.2d 424 (Tex.Cr.App.1976); Beaupre v. State, 526 S.W.2d 811 (Tex.Cr.App.1975); Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.1969).

The appellant says that cases such as Lyons v. State, supra, and Frison v. State, supra, are not supported by precedent, are unsound, and should be overruled. The appellant’s contentions are not in accord with the views expressed by Wigmore:

“Ordinarily, when a witness is asked to identify the assailant, or thief, or other person who is the subject of his testimony, the witness’ act of pointing out the accused (or other person), then and there in the courtroom, is of little testimonial force. After all that has intervened, it would seldom happen that the witness would not have come to believe in the person’s identity. The failure to recognize would tell for the accused; but the affirmative recognition might mean little against him. (Footnote omitted.)
“The psychology of the situation is practically the same as when recent contrivance is alleged. To corroborate the witness, therefore, it is entirely proper . to prove that at a former time, when the suggestions of others could not have intervened to create a fancied recognition in the witness’ mind, he recognized and declared the present accused to be the person. If, moreover (as sometimes is done) the person was then so placed among others that all probability of suggestion (by seeing him handcuffed, for example) is still further removed, the evidence becomes stronger. The typical illustration is that of the identification of an accused person at the time of arrest
“This is a simple dictate of common sense, and was never doubted in orthodox practice. That some modern courts are on record for rejecting such evidence is a telling illustration of the power of a technical rule of thumb to paralyze the judicial nerves of natural reasoning. (Footnote omitted.)” (Emphasis in original.)

4 Wigmore, Evidence, Sec. 1130 (Chadbourn rev. 1972).

It is apparent that the rule of Lyons v. State, supra, which allows a witness to testify that prior to trial he identified a defendant, but which does not allow extraneous evidence — such as the testimony of a police officer — that prior to trial the witness identified a defendant, is more restrictive than the view expressed in Wigmore.

The trial court did not err in admitting the photograph and the complainant’s testimony that prior to trial she had seen that photograph and had identified the appellant as one of the men who robbed her.

The judgment is affirmed.


source: Caselaw Access Project

author: ODOM, Judge. DALLY,

license: Public Domain

text:
    Jose Leonel TREVINO, Appellant, v. The STATE of Texas, Appellee.
    No. 56424.
    Court of Criminal Appeals of Texas, En Banc.
    May 24, 1978.

      Paul Banner and Cornel Walker, Green-ville, for appellant.
    Felipe Reyna, Dist. Atty. and Rodney Go-ble, Asst. Dist. Atty., Waco, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a felony conviction for possession of marihuana. On his guilty plea to a jury appellant was assessed a punishment of ten years’ confinement and a five thousand dollar fine.

In one of his grounds of error appellant contends he was deprived of his right to counsel at the hearing on his motion for new trial. Judgment was entered on November 2,1976. Ten days later, on November 12, appellant filed his motion for new trial, alleging, inter alia, error in the separation of the jury without his consent after the court gave its charge, in violation of Art. 35.23, V.A.C.C.P. The hearing on the motion for new trial was set for December 1, the nineteenth day after the motion was filed.

The record clearly reflects appellant was denied counsel at the hearing on his motion for new trial. After the first witness called by the State testified, appellant was asked if he desired to ask any questions, and replied, “No, because I don’t know what this is about. I don’t know anything about my case. I don’t know anything about nothing. All I know is that I have to have my attorney to be here. That’s all I’m saying, my attorney have to be here.” When asked if he had any questions for the next witness, appellant replied, “Well, I don’t know what to say, Your Honor. Like I say, I think my attorney has to be here.” On numerous other occasions appellant reiterated his need for his attorney.

The record reflects appellant’s counsel, whose office was in Greenville, received notice of the hearing and replied on November 23 by letter that he had a scheduling conflict. He informed the district clerk, “I will attempt to rearrange the same and according (sic) advise the court immediately if it is necessary to file a motion to continue this hearing.” The record does not contain a motion for continuance, nor does it reflect why counsel was not present at the hearing.

The right to counsel is fundamental in our system of justice. Amendment VI, United States Constitution; Art. I, Sec. 10, Texas Constitution. “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.” Powell v. Alabama, 287 U.S. 45, 68, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). Just as “. . . appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected,” Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 257, 19 L.Ed.2d 336 (1967), so, too, does the right to retained counsel exist at every critical stage of the proceeding. The fact that absent counsel was retained rather than appointed does not authorize the court to proceed in his absence. See, Parker v. State, Tex.Cr.App., 545 S.W.2d 151; Ex parte Herrin, Tex.Cr.App., 537 S.W.2d 33; Baker v. State, Tex.Cr.App., 519 S.W.2d 648. Alternatives are available to the trial court when counsel fails to appear without adequate excuse. See Yates v. State, Tex.Cr.App., 557 S.W.2d 115; Guillory v. State, Tex.Cr.App., 557 S.W.2d 118; In re Van Orden, Tex.Cr.App., 559 S.W.2d 805.

Without doubt the hearing on a motion for new trial is a critical stage of the proceedings. It is the only opportunity to present to the trial court certain matters that may warrant a new trial, and to make a record on those matters for appellate review. See, Art. 40.03, V.A.C.C.P.; Special Commentary to Art. 40.09, 5 Vernon’s Ann. C.C.P. 154, at 156. From the record it is clear that appellant did not waive counsel, and was denied counsel at this critical stage of the proceedings.

The State argues that failure to hold a hearing on the Art. 35.23, supra, separation of the jury issue would have resulted in a record reflecting reversible error, and that time limitations required that the hearing not be delayed.

As to the first argument, the record of the trial does reflect that the jury was allowed to separate over appellant’s objection after the court gave its charge. The State is correct that this would present reversible error in the absence of a showing that the separation did not harm appellant. Skillern v. State, 559 S.W.2d 826 (1977). The burden is on the State to show no harm. Skillern, supra.

It is also true that a motion for new trial generally must be determined within twenty days or it will be deemed overruled by operation of law and that the time for conducting the hearing may not be extended by the trial court. Chappell v. State, Tex.Cr.App., 519 S.W.2d 453; Art. 40.05, V.A.C.C.P. A hearing conducted after a motion for new trial has been overruled by operation of law is not authorized and will not be considered on appeal. Boykin v. State, Tex.Cr.App., 516 S.W.2d 946. Nevertheless, it is also true that evidence heard after twenty days from the filing of the motion for new trial will occasionally be considered. In Johnson v. State, Tex.Cr. App., 467 S.W.2d 247, the defendant filed a motion for new trial supported by a juror’s affidavit and alleging jury misconduct. On appeal the defendant contended the motion was overruled by operation of law prior to the hearing at which the State produced witnesses contradicting the defendant’s affidavit. The Court on appeal stated the trial court had granted the State a continuance of the hearing in order that it could have more time to secure evidence on the issue of jury misconduct. The Court held, “In the interest of justice, the action of the court was proper in order to show that the affidavit attached to appellants’ motion for new trial did not reflect the true facts.” See also, Aldrighetti v. State, Tex.Cr.App., 507 S.W.2d 770, 773 (opinion concurring in part and dissenting in part). Thus, in this ease when the motion for new trial came on for hearing and appellant’s counsel was not present, the hearing could have been continued or recessed in the interest of justice to some date after the twenty day limit (the hearing was apparently on the nineteenth day) at which time appellant’s right to counsel would have been protected.

The course of action taken here, however, of proceeding with the hearing when appellant did not have counsel and had not effectively waived that right, was not a permissible alternative. We hold appellant was denied his right to counsel at a critical stage of the proceedings against him. We now address ourselves to how this case should be disposed of in light of this error.

The error complained of occurred at the hearing on the motion for new trial. This event is fundamentally a part of the post-trial review process, and not a part of the trial itself, or of the procedures prerequisite to commencement of the trial. Although the motion for new trial must be filed and disposed of before the sentence may properly be pronounced, Carpenter v. State, Tex.Cr.App., 541 S.W.2d 446; McIntosh v. State, Tex.Cr.App., 534 S.W.2d 143; Bedell v. State, Tex.Cr.App., 443 S.W.2d 850, it is nevertheless a post-trial proceeding in that the time for filing the motion does not commence until the judgment is entered, including assessment of punishment and disposition of any application for probation. Art. - 40.05, supra; Woods v. State, Tex.Cr.App., 532 S.W.2d 608; Faurie v. State, Tex.Cr.App., 528 S.W.2d 263. Thus, all trial issues have been decided by the time for the motion for new trial. That the hearing on such a motion is for the purpose of deciding whether the cause shall be retried (see Arts. 40.01, 40.07, 40.08, V.A. C.C.P.) and to prepare a record for presenting issues on appeal in the event the motion is denied (see Special Commentary to Art. 40.09 as cited above) demonstrates that it is part of the post-trial review process.

In cases where a defendant was denied counsel during the post-trial review proceedings under Article 40.09, V.A.C.C.P., we have abated the appeal for recommendation of proceedings at that stage at which the defendant was without the assistance of counsel. Martinez v. State, Tex.Cr.App., 534 S.W.2d 693; Watson v. State, Tex.Cr.App., 532 S.W.2d 641; Gomez v. State, Tex.Cr.App., 471 S.W.2d 393; Chavez v. State, Tex.Cr.App., 471 S.W.2d 392. Because in the instant case appellant was denied counsel at a stage of the review process prior to sentence and notice of appeal, we set aside the sentence and notice of appeal and return the cause for a hearing on the motion for new trial and an orderly course of subsequent events. In the event appellant’s motion for new trial is denied, sentence should then be pronounced and notice of appeal may be given. Thereafter the provisions of Art. 40.09, supra, should be followed, and the parties may waive such time provisions thereunder to which they are entitled as they may desire.

The sentence and notice of appeal are set aside and the cause is remanded to the trial court for a hearing on the motion for new trial and for the orderly conduct of subsequent post-trial proceedings.

DOUGLAS, J., dissents.

DALLY,

Judge, dissenting.

The majority’s grave concern, anxiety, and solicitude for what it says was the denial of appellant’s constitutional right to counsel on the hearing of his motion for new trial, it appears to me, is a red herring. Without being granted rule-making power, the majority on its own muscle is now promulgating historically unprecedented new rules of criminal procedure granting the State the right to a motion for new trial. This is without regard for long-established practice and is contrary to the spirit of Chapter 40 of the Code of Criminal Procedure. It is clear the appellant’s counsel intended to and did abandon the motion for new trial so that it would be overruled by operation of law. This is often done, and appellant’s counsel had a perfect right to abandon that motion. In my opinion, appellant’s counsel should continue to urge that the motion for new trial was abandoned so that he will not be considered ineffective in the representation of his client.

Since the majority of this Court has already found that this record presents reversible error, it is absurd to think the appellant wants his motion for new trial heard for that error to be cured. What need is there for the appellant to have his motion for new trial heard?

The majority is permitting the State to adopt the appellant’s abandoned motion for a new trial and force a hearing of that abandoned motion; the result is that the majority is granting the State a motion for new trial. I see no distinction between this and allowing the State to file its own motion for new trial. This appeal should be decided on the record now before this Court, and let the chips fall where they may. I vigorously dissent to the amendment of the Code of Criminal Procedure by the promulgation of these new rules of criminal procedure granting the State a motion for new trial.

ROBERTS, J., joins this dissent.


author: ONION, Presiding Judge.

text:
    Ex parte Homer Clifton CAMPBELL. Ex parte Linda Harvey CAMPBELL.
    Nos. 57251, 57252.
    Court of Criminal Appeals of Texas, Panel No. 2.
    May 24, 1978.

      Stephen M. Orr, Austin, for appellant.
   OPINION

ONION, Presiding Judge.

These are appeals from orders entered in a habeas corpus proceeding in the 98th District Court of Travis County.

On December 1,1977 appellants, shown to be husband and wife, filed applications for writ of habeas corpus seeking reduction of bail in twelve aggravated robbery cases each. It was alleged that three cases each were filed in Travis County, and that the other nine cases each were filed in Williamson, Taylor, Lubbock, Gregg, Tarrant and Bexar Counties. The habeas corpus application alleged the bail set in the three Travis County cases against each appellant had been set at $50,000, $25,000 and $25,000, respectively. It was further alleged that bail had been set in varying amounts in the other counties so that when taken with the bail required in Travis County, each appellant faced a half a million dollars in bail.

At the habeas corpus hearing it was stipulated that each appellant had been indicted in three aggravated robbery cases in Travis County and that the amount of bail set forth in pleadings was the amount of bail set. The parties also stipulated to the fact that each appellant was under indictment in all the counties alleged except Bex-ar, and the amount of bail being required was also stipulated. The indictments were introduced into evidence by agreement.

Appellants then testified and called other witnesses, mostly relatives, including two cousins and a sister. The thrust of such testimony was that appellants were unable to make the amount of bail assessed in all the cases and did not have the $70,000 or $80,000 it would take to secure sureties. All testified that a lower amount of bail would suffice and that the appellants would appear in court when needed. The relatives volunteered to serve as sureties on lowered bonds if they were acceptable. Evidence was offered as to the health problems of the appellant Linda Campbell, the business of remodeling operated by the appellant Homer Campbell, the heart condition of his father, who was attempting to operate the business while his son was in confinement, the number of children of appellants who had to be placed in other homes, etc.

At the conclusion of the hearing, the trial court reduced bail in all of the Travis County cases to $15,000 in each case, but refused to act to lower the amount of bail in any out of county cases on the basis that it had no authority to do so.

On appeal appellants contend the “trial court erred in refusing to lower the bond amounts complained of since such bond amounts were in violation of United States Constitution; Eighth Amendment and Texas Constitution, Article I, Sec. 11.”

Thus, we conclude that the appellants are complaining only of the court’s action in refusing to take action in the out of county cases and not the action of the court in lowering the amount of bail required in the Travis County cases.

Article 11.06, V.A.C.C.P., provides:

“Before indictment found, the writ may be made returnable to any county in the State.”

Article 11.07, V.A.C.C.P., deals primarily with post-conviction writs of habeas corpus in felony cases. It does provide, however, in § 1 thereof as follows:

“Section 1. After indictment found in any felony case, and before conviction, the writ must be made returnable in the county where the offense has been committed.”

It is well settled that where a writ of habeas corpus is granted after indictment but before trial, it is the duty of the judge granting the writ upon a proper showing to make it returnable to the judge of the county where the offense covered by the indictment was committed. See Ex parte Rubison, 170 Tex.Cr.R. 314, 340 S.W.2d 815 (1960); Ex parte Meador, 93 Tex.Cr.R. 450, 248 S.W. 348 (1923). See also State ex rel. Wilson v. Briggs, 171 Tex.Cr.R. 479, 351 S.W.2d 892 (1961); Stakes v. Rogers, 139 Tex. 650, 165 S.W.2d 81 (1942); Ex parte Trader, 24 Tex.App. 393, 6 S.W. 533 (1887); Ex parte Springfield, 28 Tex.App. 27, 11 S.W. 677 (1889); Ex parte Graham, 64 S.W. 932 (Tex.Cr.App.1901); Ex parte Fulton, 65 S.W. 1059 (Tex.Cr.App.1901); Ex parte Mitchell, 81 Tex.Cr.R. 517, 196 S.W. 540 (1917); Ex parte Traxler, 148 Tex.Cr.R. 550, 189 S.W.2d 749 (1945). See also Ex parte Patterson, 139 Tex.Cr.R. 489, 141 S.W.2d 319 (1940).

In Ex parte Rubison, supra, the petitioner filed an application for writ of habeas corpus in a Dallas County district court alleging that he was unlawfully restrained by the sheriff of Dallas County as he was being “held for the Sheriff of Ector County on charges of forgery.” The district court granted the writ and enlarged the petitioner on bail and set a date for a hearing. Upon learning subsequently that the petitioner had been indicted by the grand jury of Ector County, the Dallas judge made the writ returnable to the 70th District Court of Ector County and remanded the appellant to custody.

In the Rubison opinion this court noted that the habeas corpus application was presented to the Dallas judge pursuant to Article 118, V.A.C.C.P. (now Article 11.06 unchanged), and the writ was granted and hearing set in Dallas County. When the judge learned the petitioner was under indictment in Ector County, the court noted it became the judge’s duty under Article 119, V.A.C.C.P. (now Article 11.07), to make the writ returnable to Ector County for a hearing there, and this he did.

Appellants recognize the above rule, but argued that most of the cases dealing with the rule only involved indictments from another county, but in the instant case the 98th District Court had jurisdiction over three cases against each appellant in Travis County and should have jurisdiction over the remainder of the cases even if they involved indictments from other counties. In light of the provisions of Article 11.07, supra, we cannot agree.

Appellants nonetheless argue that bail should have been reduced and relief granted in the out of county cases pursuant to Article V, § 8 (district court’s right to issue writs of habeas corpus); Article I, § 11 (right to bail except in capital cases where proof is evident; and § 12 (writ of habeas corpus is not to be suspended) of the Texas Constitution. They contend that any limitation upon the writ of habeas corpus by Articles 11.06 and 11.07, V.A.C.C.P., is in violation of Article I, § 12 of the State Constitution. The procedure described by said articles does not suspend the right to the writ of habeas corpus but only provides for the orderly procedural application of its use. Further, we find no violation of the Eighth Amendment, United States Constitution, as claimed, though not briefed. Appellants’ contention is without merit.

Thus, we conclude the trial court was correct in refusing to act on the out of county cases, but it should have acted to make the writ returnable to the various counties where the indictments alleged the offenses occurred. See Article 11.07, § 1, supra; Ex parte Rubison, supra. Upon remand, the writ should be made returnable to the various counties unless the applications for writs,of habeas corpus are withdrawn by the appellants.

The judgments are affirmed.


text:
    Ex parte Robert Daniel TABOR.
    No. 54415.
    Court of Criminal Appeals of Texas, En Banc.
    May 24, 1978.
    Keith Woodley, Comanche, for appellant.
    Jim Vollers, State’s Atty., Austin, for the State.
   OPINION ON STATE’S MOTION FOR REHEARING

ONION, Presiding Judge.

Our opinions on original submission are withdrawn and the following is substituted in lieu thereof.

This is an appeal from an order of the 35th District Court entered in a habeas corpus proceeding denying bail pending appeal.

The trial court denied bail on the ground that the appellant waived his right of appeal. Appellant does not deny that he had waived his right of appeal, but contends he subsequently gave notice of appeal within ten days of sentencing and he is therefore entitled to bail pending appeal. See Article 44.08, V.A.C.C.P.

The record at the habeas corpus hearing reflects that on January 24, 1977 the appellant entered a plea of guilty before the court to the offense of possessing less than four ounces of marihuana, a Class A misdemeanor. Punishment was assessed at twelve (12) months’ confinement in the county jail. Sentence was entered on the same date. A written waiver of the right of appeal was then filed. Subsequently a written notice of appeal by appellant’s counsel was filed on January 28, 1977. On February 1, 1977 appellant executed a $10,-000 appeal bond. On February 2, 1977 the court issued a capias for appellant’s arrest. On February 8, 1977 the appellant filed an application for writ of habeas corpus alleging that to deny him the right of appeal would be to deny him due process. No claim was made that the waiver of the right of appeal was coerced or involuntary.

At the habeas corpus hearing appellant argued that despite the waiver of the right of appeal he can re-assert his right of appeal so long as he gives notice of appeal within ten days of the sentencing, which he did, and that this gives him the absolute right of appeal to the Court of Criminal Appeals. At the conclusion of the hearing, the court denied relief on the ground that the appellant had waived the right of appeal after sentence. The request for bail was denied.

On appeal in support of his contention, appellant cites the following language from Abron v. State, 531 S.W.2d 643 (Tex.Cr. App.1976):

“. . . When an appellant makes a voluntary and intelligent waiver of his right to appeal at the time of sentencing, such waiver is effective unless and until a timely notice of appeal is filed. . . . ”

In Ex parte Dickey, 543 S.W.2d 99 (Tex.Cr.App.1976), we adopted the statement in Reed v. State, 516 S.W.2d 680 (Tex.Cr.App.1974), to the effect that a knowing and intelligent waiver of the right to appeal will prevent a defendant from appealing without consent of the trial court. The quoted language from Abron v. State, supra, has therefore been rejected by this court. See Johnson v. State, 556 S.W.2d 816 (Tex.Cr.App.1977).

Further, in Ex parte Hogan, 556 S.W.2d 352 (Tex.Cr.App.1977), we held that no attack on the waiver of the right to appeal would be entertained in the absence of factual allegations supporting the claim that the waiver was coerced or involuntary.

Here the trial court, in view of the waiver, found the notice of appeal to be ineffective to initiate the appellate process, denied bond, and ordered petitioner held in custody “until this sentence in this case is served.” Thus the trial court did not consent to petitioner appealing. There were no allegations or proof at the habeas corpus proceedings that the waiver of the right of appeal was coerced or involuntary, and there is nothing in the record suggesting coercion or involuntariness.

The State’s motion for rehearing is therefore granted, and the relief sought by petitioner is denied.

ROBERTS and PHILLIPS, JJ., dissent.

VOLLERS, J., not participating.


author: EVANS, Justice.

text:
    Daniel MOSSLER et al., Appellants, v. Norman JOHNSON et al., Appellees.
    No. 17067.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 23, 1978.
    Rehearing Denied April 20, 1978.

      John H. Holloway, Kenneth H. Knop, Houston, for appellants.
    Lackshin & Nathan, Bernus Wm. Fisch-man, Marvin D. Nathan, A. R. Schwartz, Houston, for appellees.
   EVANS, Justice.

Daniel Mossier and Christopher Mossier, two adopted children of Candace Mossier, deceased, appeal from a summary judgment denying their application to probate an instrument which they contend is their mother’s last will and testament. The appellees, Rita Johnson Wilder and Norman Johnson, are the decedent’s natural children who filed a contest to the application for probate.

The instrument offered for probate is a photostatic reproduction of what purports to be a conformed copy of a prior will of the decedent dated September 3,1968. It is the position of the appellants, as proponents of the instrument in question, that on June 8, 1976, their mother caused certain changes to be made on the conformed copy of her prior will, and after executing the revised instrument as her will, had the instrument attested by her daughter, Rita Wilder, and by her physician, Dr. Harvey Esrov. In the appellees’ contest and in their motion for summary judgment, it is alleged that the instrument dated June 8, 1976, is invalid as a will for the reason that the signature of only one subscribing witness, Harvey Esrov, appears on the document and that the other alleged witness, Rita Wilder, did not subscribe her name as a witness.

The trial court’s summary judgment recites its finding that the will had not been executed with the formalities required by law in that it did not have the signature of the requisite two witnesses required by Section 59, Texas Probate Code, and declares that the order is final for the purposes of appeal.

In their first point of error, the appellants contend that the summary judgment was not a final order under Section 5, Texas Probate Code. Under this point, appellants argue that the testator’s original will dated September 8, 1968, had been admitted to probate under an interlocutory order which had preserved for trial the validity of a 1975 codicil to that will, and it is their position that the summary judgment is interlocutory since it only determined the validity of the June 8,1976, document and did not decide the over-all question of which of the instruments was entitled to probate as the decedent’s last will and testament.

An appeal is authorized in a probate matter if brought from a judgment which finally disposes of and is conclusive of the issue or controverted question for which that particular part of the proceeding was brought. Fischer v. Williams, 160 Tex. 342, 331 S.W.2d 210, 213 (1960). The judgment may be final for purposes of appeal even though the decision does not fully and finally dispose of the entire probate proceeding. Kelley v. Barnhill, 144 Tex. 14, 188 S.W.2d 385, 386 (1945).

An application for probate of a will presents the question of whether an instrument is entitled to probate as the unrevoked last will and testament of the decedent. Tips v. Yancey, 431 S.W.2d 763 (Tex.1968). That issue may be finally determined by the entry of a judgment denying an application for probate, notwithstanding that an application for probate of another instrument may remain pending on the court’s docket. Cherry v. Reed, 512 S.W.2d 705 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n. r. e.). The judgment in the case at bar is final and appeala-ble since it effectively determines the basic controverted issue between the parties as to the validity of the instrument dated June 8, 1976. Currie v. Drake, 550 S.W.2d 736, 739 (Tex.Civ.App.—Dallas 1977, writ ref’d n. r. e.). The case of Stutts v. Stovall, 531 S.W.2d 690 (Tex.Civ.App.—San Antonio 1975, writ ref’d n. r. e.), relied upon by the appellants, is inapplicable to the case at bar. In Stutts, the order expressly provided that a fact issue remained as to whether the appellant had made an election not to take under the will. Thus, the order in that case was clearly interlocutory and was not subject to review by appeal. The appellants’ first point of error will be overruled.

In their second and third points of error, the appellants contend that the trial court erred in entering the summary judgment denying probate of the instrument in question on the basis of the lack of the two attesting witnesses’ signatures.

In order for an instrument to be entitled to probate as a will under Section 59, Texas Probate Code, if it is not wholly in the handwriting of the testator, it must be attested by two or more witnesses “who shall subscribe their names thereto in their own handwriting in the presence of the testator.”

The instrument in question is nine legal-size pages in length. The last page of the instrument contains the conformed attestation provisions, indicating a typewritten date of September 3, 1968, and typewritten signatures for the testator and the original subscribing witnesses. On page 3 of the document there appears the handwritten date of June 8, 1976, the signature of the testator, Candace Mossier, and the hand-printed names of Norman Johnson and Rita Wilder. In the left hand margin, under the handprinted designation “witness”, appears the signature and handprinted name of Dr. Harvey Esrov. The instrument offered for probate shows the relative location of the handwritten notations made on page 3:

It is the appellees’ position that the undisputed deposition testimony of the two alleged witnesses, Rita Wilder and Dr. Harvey Esrov, conclusively establish that Rita Wilder did not subscribe her name as an attesting witness to the instrument. Appellants contend, on the other hand, that the deposition testimony does not support the trial court’s judgment and, to the contrary, shows as a matter of law that the testator executed the instrument in the presence of the two witnesses and that both witnesses attested the execution of the instrument by subscribing their names in their own handwriting in the presence of the testator.

Rita Wilder testified that the 1976 instrument was executed while her mother was in the hospital. Her mother wanted to review her will and bring it up-to-date. In particular, her mother wanted the name of her attorney, Mr. A1 Pallot, stricken as one of the executors. Rita Wilder picked up a conformed copy of the will from the attorney’s office in downtown Miami and delivered it to her mother at the hospital. Several days later, her mother found that she needed to have a test with possible adverse consequences, and she became quite concerned about the test and about the release which the hospital wanted her to sign. As her mother was being prepared for the test, she asked Rita Wilder to go back to her room and to bring her the will, which she did. Her mother then asked her to strike out Mr. Pallot’s name and to insert in lieu thereof the names “Norman Johnson and Rita Wilder.” She did as her mother asked, and her mother then asked to “let her sign it.” Her mother wanted the instrument witnessed and did not want to have the test without having first made the changes in the will. When her mother took possession of the instrument, she was present in the room, but she could not remember whether Dr. Esrov was present at that time. Her mother took the instrument from her and said “show me the part about A1 Pallot. Find that paragraph for me.” She showed her mother the paragraph, and her mother said “scratch his name out and put yours and Norman’s there and let me sign it.” She scratched out Mr. Pallot’s name and wrote Norman Johnson and Rita Wilder above that in her own handwriting, and made no other changes before handing the instrument back to her mother. She put the date June 8, 1976, on the instrument, either before or after her mother signed the instrument. Dr. Esrov then signed the instrument and Rita Wilder asked him to spell his name because his signature was illegible. She then wrote out his name underneath his signature. She could not recall whether the date was placed on the instrument before or after her mother signed it, but the date and her mother’s signature were on the instrument at the time Dr. Esrov signed his name. She could not recall whether the changes were made in the doctor’s presence because he was coming in and out of the room, preparing for the test. She said she personally saw her mother place her signature on the instrument and that her mother had specifically directed her where the changes were to be made. She believed that “the entire changes” in her handwriting were on the instrument when her mother personally signed her name to it in her presence and in the presence of Dr. Esrov. Rita Wilder asked Dr. Esrov “will you please witness her signature”, but she could not recall if she said “to the will.” She testified that she wrote the word “witness” followed by a colon with double lines underneath that word, but she could not recall whether or not the doctor had already signed his name to the instrument. She said her mother was in the room at that time.

Dr. Esrov identified his signature on the instrument as that immediately above the printed words Harvey Esrov and below the word witness. He testified that when he placed his signature on the instrument, he and Mrs. Mossler’s daughter were present in the room and that prior to the time that he signed his name, he saw Mrs. Mossier place her signature in paragraph IV immediately under the date June 8, 1976. Prior to the time Mrs. Mossier signed her name to the instrument, her daughter, acting at her request, made certain changes in paragraph IV. After those changes were made and the instrument was dated, Mrs. Mossier or her daughter requested that he witness the instrument. He placed his signature on the instrument after Mrs. Mossier had placed her signature under the date. He did not recall whether the word “witness” was on the instrument when he signed it, but he did sign the instrument after Mrs. Mossier signed it, and either he or Mrs. Mossler’s daughter then printed his name under his signature.

It is immaterial where the attesting witnesses sign their names upon a written will, so long as they do so for the purpose of attesting the instrument as subscribing witnesses. Fowler v. Stagner, 55 Tex. 393 (1881); Franks v. Chapman, 64 Tex. 159 (1885). When doubt exists concerning the purpose of the witnesses’ signatures, the testimony of the attesting witnesses may serve to explain the reason for their signatures. Mortgage Bond Corp. v. Haney, 105 S.W.2d 488, 491 (Tex.Civ.App.— Beaumont 1937, writ ref’d).

“It seems fairly clear that an irregular or anomalous signature must be explained by the testimony of the attesting witnesses themselves or by the testimony of some other person. A signature appearing in the margin of the instrument, opposite an alteration, would doubtless not be acceptable in the absence of testimony showing an intent to attest the entire will.” Bailey, 9 Texas Practice, Wills § 279 (1968).

It is the appellants’ burden, as proponents of the instrument offered for probate, to prove the execution of a valid will. Perritte v. Birdwell, 539 S.W.2d 95 (Tex.Civ.App.—Tyler 1976, no writ). However, as movants for summary judgment, the appellees had the burden of establishing, as a matter of law, that appellants could not meet this burden of proving a valid will at a trial on the merits. Citizens First Nat’l Bank v. Cinco Exploration Co., 540 S.W.2d 292 (Tex.1976).

An examination of page 3 of the document in question reveals the handprinted name of Rita Wilder at a location in the body of the instrument rather than in a place indicated for the witnesses’ attestation. Thus, the document itself is consistent with and corroborative of the testimony given by Rita Wilder that her purpose in placing her name on the instrument was not to attest to its execution but rather to comply with her mother’s instructions that she designate herself and her brother as the named co-executors. Although Rita Wilder is an interested party to the transaction, her testimony was not contradicted by the testimony of Dr. Esrov or by other evidence in the case. To the contrary, Dr. Esrov’s testimony is corroborative of Rita Wilder’s version of the transaction, indicating that her purpose in handprinting her name in the body of the instrument was to comply with her mother’s request that she change the names of the designated co-executors. Thus, the summary judgment proof conclusively established the absence of any factual dispute as to the purpose of Rita Wilder in placing her name on the instrument, and the trial court was justified in concluding, as a matter of law, that she had not subscribed her name to the instrument as an attesting witness to its execution.

The question of whether the subscribing witness to a will did, in fact, attest the execution of the instrument in the presence of the testator is generally a matter to be determined by the trier of fact. Allen v. Nesmith, 525 S.W.2d 943 (Tex.Civ.App.—Houston [1st Dist.]), writ ref’d n. r. e. per curiam 531 S.W.2d 330 (Tex.1975). However, where the evidence is legally insufficient to support a finding that the instrument was attested as required by law, the question becomes one of law for the court. Norwood v. Harlow, 429 S.W.2d 670 (Tex.Civ.App. — Fort Worth 1968, writ ref’d n. r. e.). On the record presented, the trial court did not err in concluding, as a matter of law, that the instrument in question had not been executed by two subscribing witnesses as required for probate under the provisions of Section 59, Texas Probate Code.

The judgment of the trial court is affirmed.


author: MURRAY, Justice.

text:
    T. O. MANGUM et al., Appellants, v. Jimmy L. SWEARINGEN et al., Appellees.
    No. 15932.
    Court of Civil Appeals of Texas, San Antonio.
    April 26, 1978.
    Rehearing Denied May 24, 1978.

      John D. Wennermark, San Antonio, for appellants.
    Pat Maloney, San Antonio, for appellees.
   MURRAY, Justice.

This is a church case. Appellants, H. J. Turner, Ray Jack White and T. 0. Mangum, members and deacons of the Harmony Hills Baptist Church, a non-profit corporation, filed suit against appellee, Jimmy L. Swear-ingen, pastor of Harmony Hills Baptist Church, and other members, to obtain a permanent injunction against appellees restraining them from selling, transferring or otherwise disposing of any of the property of the Harmony Hills Baptist Church and to restore appellants to their positions as members and officers of said church. After a trial before the Court without a jury, all relief was denied to appellants and they have perfected their appeal to this Court.

There are two general types of religious bodies or organizations recognized by law. The first is that where the local congregation, by the nature of its organization, is strictly independent of any other ecclesiastical association and, so far as church government is concerned, owes no fealty or obligation to any higher authority. The second is that where the local congregation is but a subordinate of some general church organization in which there are superior ecclesiastical tribunals with general and ultimate power of control more or less complete in some supreme judicatory over the whole membership of that general organization. 52 A.L.R.3d 324 (1973). The first type has come to be known as a congregational church, while the second is generally called a connectional or hierarchical church.

It is conceded by both parties, and it is undisputed, that the Harmony Hills Baptist Church has a congregational form of government. No ecclesiastical hierarchy with judicial or revisory powers exists within its organization. Therefore, all ecclesiastical remedies rest within the congregation itself. 76 C.J.S. Religious Societies § 85 (1952). The church of the congregational form administers its own government by the voice of the majority of its members. David v. Carter, 222 S.W.2d 900 (Tex.Civ.App.—Eastland 1949, writ ref’d n. r. e.); 20 A.L.R.2d 432 (1951).

The record discloses that on August 22, 1976, the appellants, as a majority of the Board of Deacons, met and decided to dismiss appellee, Jimmy L. Swearingen, as pastor of Harmony Hills Baptist Church. Before this decision could be presented to the church membership, appellee Swearin-gen convened a meeting of the church membership on September 8, 1976, and appellants were ousted as deacons. Some question arose as to the legality of the September 8th meeting, and, at a subsequent meeting on September 26, 1976, before the church membership, appellants were again expelled as members and deacons of the Harmony Hills Baptist Church.

Appellants state in their brief that the only question to be decided by this Court is the one concerning the validity of the actions taken against appellants in the two meetings cited above.

Appellants’ Point of Error No. I attacks the judgment of the trial court because there was no provision in the by-laws of the corporation allowing removal of deacons. We overrule this contention as it is apparent from the by-laws that removal as members of the Harmony Hills Baptist Church would be effective to remove a member as a deacon. Furthermore, the power to remove a corporate officer is one necessarily incident to every corporation. 76 C.J.S. Religious Societies § 27 (1952).

By appellants’ Points of Error Nos. II and III, they attack the judgment of the trial court because the removal of appellants as officers and members was in violation of the provisions of the by-laws of the corporation and was therefore void. We disagree. When a person becomes a member of a church, he thereby submits to its ecclesiastical jurisdiction in ecclesiastical matters and has no legal right to invoke the supervisory power of a civil court as long as none of his civil rights are involved. Minton v. Leavell, 297 S.W. 615 (Tex.Civ.App.— Galveston 1927, writ ref’d); 76 C.J.S. Religious Societies, § 85 (1952). In Minton, the Court said at page 622, “Church relationship stands upon a different and higher plane, and the right of a church to decide for itself whom it may admit into fellowship or who shall be expelled or excluded from its fold cannot be questioned by the courts, when no civil or property rights are involved.” Appellants do not contend that their expulsion from the church was an invasion of their property rights as would entitle them to relief by injunction.

We are not to be understood as approving an expulsion from its membership by irregular methods and without notice and an opportunity to be heard. David v. Carter, 222 S.W.2d 900 (Tex.Civ.App.—Eastland 1949, writ ref’d n. r. e.).

The membership may have erred in the procedure such as a standing vote instead of a written vote, but the meeting of the congregation of September 26 was regularly called, appellants were present and participated in the meeting, and the resolution was adopted by a unanimous vote by the members present. If the courts assume jurisdiction to question the validity of a judgment of a church court upon a question of this character, churches would be deprived of the right of construing and administrating their church laws, and our proud boast of religious liberty and our absolute separation of church and state could no longer be proclaimed. Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976).

The judgment of the trial court is affirmed.


author: CADENA, Chief Justice.

text:
    ROEGELEIN PROVISION COMPANY et al., Appellants, v. Judy M. MAYEN et al., Appellees.
    No. 15798.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 25, 1978.

      Theo F. Weiss, Jack Hebdon, Thomas H. ■Crofts, Jr., Groce, Locke & Hebdon, San Antonio, for appellants.
    A. J. Hohman, Jr., Hope, Henderson, Hohman & Georges, Lewin Plunkett, Wiley, Plunkett, Gibson & Allen, San Antonio, for appellees.
   CADENA, Chief Justice.

Appellants, Roegelein Provision Company, a corporation, and its president, William Roegelein, Jr., complain of a judgment denying Roegelein Provision Company recovery in its suit against two former employees, Judy M. Mayen and her mother, Dorothy Mayen, for money allegedly stolen by them; denying Roegelein Provision Company recovery against Great American Insurance Company under an employees’ fidelity bond issued by such company; and awarding Judy and Dorothy Mayen actual and exemplary damages as against Roegelein Provision Company and William Roegelein, Jr. for libel. The counterclaim for libel is based on statements contained in proofs of loss executed by William Roegelein, Jr., on behalf of Roegelein Provision Company, and filed with the insurance company in support of the claim under the employees’ fidelity bond. The statements were to the effect the Roegelein Provision Company had suffered a loss of $55,500.00 as a result of fraudulent and dishonest acts on the part of Judy and Dorothy Mayen.

In this opinion Roegelein Provision Company and William Roegelein, Jr. will be referred to, collectively, as “appellants” and individually, as “employer” and “Roege-lein,” respectively. Judy and Dorothy May-en will be referred to collectively as “the Mayens” and individually, by their Christian names. Great American Insurance Company will be called “the bonding company.”

The judgment is based on a jury verdict in which the issues relating to the liability of the Mayens and the bonding company were answered unfavorably to employer, while the issues referable to the counterclaim of the Mayens for libel were answered favorably to the Mayens.

Appellants’ 33 points embody contentions to the effect that I. The trial court erred in rendering a take-nothing judgment against employer in its suit against the Mayens and the bonding company; II. the trial court erred in awarding the Mayens actual and exemplary damages for libel; and III. appellants were entitled to a new trial on the ground of newly discovered evidence.

A consideration of the questions involved in this case requires a recital of the evidence presented at the trial. The following 24 paragraphs contain what is believed to be a fair summary of such evidence.

1. Employer is engaged in the process of processing and selling meat and meat products to institutions such as schools, hospitals, and restaurants. It maintains three plants in San Antonio. Its main office is located on Brazos Street, with the other two plants being located on East Commerce Street and on Laredo Street. The events which gave rise to this litigation occurred, primarily, at the East Commerce street location, which will be referred to in this opinion as the “Commerce plant.” The plant on Brazos Street will be identified as the “main office.”

2. In October 1974, Edgar Taylor, secretary-treasurer of employer, noted what he considered to be an unusual drop in cash sales at the Commerce plant. He notified Roegelein, and on October 10, 1974, Roege-lein and Taylor met with Wayne Wendell, a certified public accountant with the firm of Carneiro-Chumney & Co., an accounting firm which had audited employer’s operations for a period of several years. At this time, Judy was employed as cashier at the Commerce plant and Dorothy was a saleswoman at such plant.

3. On October 11 Wendell conducted a “surprise” cash count at the Commerce plant. No discrepancies were revealed, but Wendell testified that during the progress of the cash count Judy appeared more nervous than usual and her mother, Dorothy, spent some time in the cashier’s cage while the count was in progress. Subsequently, he admitted that it is not unusual for employees to be nervous when a check of their activities is being conducted. Dorothy denied that she was in the cashier’s cage while the cash count was in progress.

4. The procedure followed in cases of cash sales, including cases where the customer paid by check at the time of delivery, was described in some detail by several witnesses, and there is no significant difference in the testimony relating to such procedure.

5. Orders, usually made by telephone, were taken by a person in employer’s order department, located on the second floor of the Commerce plant. An invoice was prepared in quadruplicate, with each copy being a different color. The “original” was on green paper, and the other three copies were yellow, pink, and white.

6. All four copies of the invoice were then delivered to the “cooler,” where the order was filled. The person or persons filling the order usually detached the white copy from the remainder of the invoice and entered on such white copy the weight of each item on the order. All four copies were then returned to the order department, where the weights and prices were noted on the green, pink, and yellow copies. The white copy, which generally became soiled in the process of filling the order, was then discarded.

7. After the weights and prices were entered on the remaining three copies, all three copies were sent to the cashier’s cage. The green copy was immediately placed in a “mail pouch” in the cashier’s cage for transmittal to the main office. The pink and yellow copies remained in the cashier’s cage. The mail pouch was picked up at least once a day by one of employer’s drivers and delivered to the main office.

8. If the merchandise was to be delivered to the customer, such delivery was usually made on the day following receipt of the order. The foreman of the drivers usually arrived at the Commerce plant several hours before the cashier reported for work. He and his assistant occupied desks located in the cashier’s cage. They would supervise the loading of the trucks and deliver the yellow and pink copies of the invoices to the drivers making the delivery of the orders described in the invoices. When the driver delivered the merchandise, he delivered the pink copy of the invoice to the customer, to be retained by the customer. The customer normally acknowledged receipt on the yellow copy, and the yellow copy was then returned by the driver to the cashier’s cage, along with payment, in the form of either cash or check.

The cashier then checked the amounts turned in by each driver against the amount reflected on the yellow invoice and in the “driver’s book,” an ordinary stenographic pad in which had been entered the amount of each sale as reflected in the invoice. The entries in the driver’s book were apparently made by persons in the order department. At the time of trial, the relevant driver’s books could not be produced by employer.

9. If the customer was to call at the plant for the merchandise, the procedure differed only in the fact that when the customer appeared the cashier would notify the cooler, identifying the order by invoice number. When the meat was delivered to the customer, the cashier handed him the pink copy of the invoice, had him acknowledge receipt of the merchandise on the yellow copy, and retained the yellow copy, together with the check or cash handed her by the customer.

10. After the cashier checked the amount of money turned in by the truck drivers and paid by customers who picked up their orders, she made out a deposit slip and a deposit receipt which, along with the cash and checks, were picked up daily by an armored truck service. The yellow copies of the invoices were placed in the mail pouch for delivery to the main office.

11. Each invoice bore a number, with the green, yellow, and pink copies of each invoice bearing the same number. At its main office employer maintained a “checkerboard,” designed to assure that a proper record of each invoice was kept. During the two months immediately preceding the inception of the investigation in October, this system, according to employer, had “broken down.” Employer explained this breakdown by pointing out that the employee chiefly responsible for maintaining the checkerboard had been on vacation, although no satisfactory explanation was given for the failure to bring the checkerboard up-to-date after such employee had returned to work, other than the fact that keeping the checkerboard up-to-date was merely one of several duties performed by this employee.

12. The investigation, which was initiated by Wendell on October 11, 1974, continued until the end of that month. During this period Wendell and those working with him discovered that 244 invoices, covering the period from mid-July 1974, to mid-October 1974, were missing. Employer produced testimony to the effect that, normally, missing invoices averaged only two per month, but there is testimony to the effect that during the three months preceding the period during which the alleged losses occurred, 160 invoices were missing. Of these, 82 had been recorded as “void,” although it was apparently not possible to verify whether such entries were correct.

13. Wendell suspended his investigation in November 1974, at which time a private investigator was hired by employer. The investigator, apparently looked into the matter for a period ending in April 1975, at which time Wendell resumed his investigation. The private investigator who was hired in November did not testify.

14. Wendell then requested employer’s customers to check their records to determine whether the customers had the pink copies of the 244 missing invoices. As a result of such inquiries, 107 pink copies of the missing invoices were recovered from customers who were still in business and who had retained their copies of invoices. The face value of such recovered invoices was $22,934.72.

15. Wendell arrived at the amount of 137 missing invoices by averaging the value of the 107 pink copies recovered and multiplying that figure by 133. The figure of 133 was arrived at, according to Wendell, by assuming that the average monthly invoice lost was 2 invoices, and Wendell subtracted 8, which he assumed to be the average monthly figure, from 137. On the stand he admitted that an error in subtraction had been made, and that the average invoice amount should have been multiplied by 129 rather than 133. He also admitted that he had inaccurately added the sum of the recovered invoices to reach the figure $22,970.72, rather than $22,934.72. In any event, Wendell concluded that the missing invoices reflected cash sales amounting to $22,970.72. By adding this figure to the average amount of the 107 recovered pink copies, he concluded that the total loss amounted to $51,523.16. In his testimony Wendell admitted that, due to the mathematical errors referred to in this paragraph, his final estimate of the amount of loss was incorrect.

16. Wendell made another estimate of the amount of the loss by computing “inventory shrinkage.” Assuming that the “normal” inventory shrinkage was 5%, he concluded that the inventory shrinkage during the three-month period in question exceeded the normal shrinkage of 5% by approximately $65,000.00.

17. From his investigations, Wendell concluded that the money representing sales reflected by the 244 missing invoices had found its way into the bank account of employer.

18. The bonding company produced the testimony of William Bradley, a certified public accountant. He described employer’s record-keeping procedures as significantly less than adequate. He disputed the assertion that there had been a significant drop in cash sales at the Commerce plant during the period during which employer claimed the losses occurred. His conclusion was based on a comparison of the normal trend in seasonal ratio of cash sales to credit sales. He criticized the methods employed by Wendell, saying that the assumptions underlying Wendell’s conclusions were false, and asserting that Wendell had not used proper procedures in his computation of inventory shrinkage. Since the period during which the losses allegedly occurred consisted of 55 working days, and since employer could produce only 35 daily balance sheets, he said that it was impossible to determine whether the money represented by the missing invoices had been deposited in employer’s bank account or not. He pointed out that the problem was made worse by the fact that money from sources other than the Commerce plant was deposited in the same bank account.

19. The evidence showed that several persons, in addition to Judy, the drivers’ foreman and his assistant and Dorothy, had access to the cashier’s cage.

20. Judy and Dorothy left their employment with employer shortly after the investigation began, but there was evidence showing that they had decided to leave some time prior to the time the investigation began.

21. The evidence showed that Judy Mayen had made cash purchases totalling more than $8,000.00 beginning in July 1974, although she had not worked since she left her employment. She explained this by saying that she had received from $8,000.00 to $10,000.00 from a gentleman whom she had met in Mexico and with whom she occasionally spent weekends over a period of months. She described this relationship as being entirely platonic. She also testified that she received $3,000.00 from her mother. Her mother, Dorothy, testified that she had given Judy $3,000.00. Judy’s grandmother, Mrs. Michie, testified that she gave Judy cash from time to time, and that during 1974 she had given Judy $1,500.00 or $2,500.00. She testified that her income in 1974 was $4,100.00. Judy also received a check from an insurance company in the sum of $2,600.00.

22. The evidence established that Dorothy had made cash purchases totalling $9,268.60. She testified that she had received a cashier’s check in the sum of $3,500.00 from her mother and produced a copy of the cashier’s check. She stated that she had sold some furniture for $4,200.00, and introduced copies of newspaper advertisements seeking buyers for such furniture. She received $900.00 from an insurance company as a result of the theft of her automobile, and she testified that she was living with a married man who, nevertheless, supported her.

23. Mrs. Michie, grandmother of Judy and mother of Dorothy, testified that, in addition to her annual income, she had received $15,000.00 from what she called the “Houston settlement” ($10,000.00) and benefits when she retired from her employment with a furniture store ($5,000.00).

24. Both Judy and Dorothy categorically denied taking any money from employer.

I. THE TAKE-NOTHING JUDGMENT AGAINST EMPLOYER

The issues relating to employer’s claims against the Mayens and the bonding company inquired whether the jury found from a preponderance of the evidence that (1) employer had suffered a loss as the result of fraudulent and dishonest acts on the part of Judy (Issue No. 1); (2) employer had suffered any loss as a result of fraudulent and dishonest acts on the part of Dorothy (Issue No. 3); (3) employer had suffered any loss as the result of fraudulent and dishonest acts of Judy and Dorothy acting together (Issue No. 5); (4) employer had suffered any loss as the result of fraudulent and dishonest acts of any employee other than the Mayens (Issue No. 7); (5) employer gave notice to the bonding company as soon as practicable upon knowledge or discovery of loss or of an occurrence which might give rise to a claim for loss (Issue No. 9); (6) employer filed detailed proofs of loss duly sworn to with the bonding company within 100 days after discovery of the loss (Issue No. 10); (7) the bonding company was not prejudiced by the timing of the notice to it or the filing of the proofs of loss at the time such proofs were filed (Issue No. 11); (8) the bonding company waived the requirements of the “insurance policy” concerning the giving of notice and filing of proofs of loss (Issue No. 12). To each of these issues the jury answered, “We do not.”

Employer’s points 25, 26, 27, 28, 30, 31, 32 and 33 assert that the jury’s answers to issues 1, 3, 5, 7, 9, 10, 11, and 12 are contrary to the overwhelming weight and preponderance of the evidence.

In view of the evidence previously summarized, we are not free to disturb the answers to issues 1, 3, and 5 concerning loss as a result of fraudulent and dishonest acts of the Mayens acting singly or in concert. Assuming that the evidence produced by employer would have supported an affirmative answer to such issues, it must be concluded that the denial of wrongdoing by the Mayens and the testimony of Bradley, the accountant placed on the stand by the bonding company, cast sufficient ddubt on the methods used by employer’s accountant and the adequacy of employer’s record-keeping procedures to justify a refusal to believe the testimony offered by employer. All of the evidence pointing to the guilt of Judy and Dorothy, including the testimony concerning cash purchases by them, is purely circumstantial, and it cannot be said that the jury’s refusal to draw from such circumstances inferences favorable to employer’s claim is manifestly unfair. It is apparent that the jury chose to accept as true the explanations given by Judy and Dorothy, despite employer’s suggestion in its brief that Judy’s testimony concerning the generosity of her Mexican benefactor strains credulity. Even if Judy’s explanation is disbelieved, the jury was justified in concluding that, whatever the source of Judy’s affluence, employer had not established that she had stolen money from employer..

The evidence is also such as to support the jury’s conclusion that employer had not established, by a preponderance of the evidence, that it had lost any money as the result of fraudulent and dishonest acts of any employee. Bradley’s testimony standing alone, cast such doubt on the accuracy of the conclusions drawn from the circumstances by employer’s witnesses as to justify the jury’s refusal to accept the testimony of employer’s witnesses, including the conclusions drawn by such witnesses, as true.

Employer’s points 25, 26, 27, and 28, contending that the answers to Issues 1, 3, 5, and 7 are contrary to the overwhelming weight and preponderance of the evidence, are without merit.

Since we have concluded that the jury’s refusal to find that employer suffered a monetary loss as the result of fraudulent and dishonest acts of the Mayens or other employees cannot be disregarded, it becomes unnecessary to consider points 30, 31, 32, and 33, in which employer argues that the answers to Issues 9, 10, 11, and 12 cannot stand under the evidence in this case. If employer suffered no loss compen-sable under the employees’ fidelity bond, whether employee timely gave notice or timely filed proofs of loss, and whether the bonding company waived the requirements concerning the giving of notice and filing of proofs of loss become irrelevant questions. Even if Issues 9, 10, 11, and 12 had been answered favorably to employer, such answers would not support a judgment in favor of employer against the bonding company in view of the employer’s failure to secure a finding that it had suffered a loss covered by the fidelity bond. If the jury’s answers to such four issues be erroneous, the error is harmless.

II. THE LIBEL ACTION

Twenty-four of appellants’ points attack that portion of the judgment which awards the Mayens actual and exemplary damages for libel. These points present the following contentions:

A.There is no finding that the defamatory statements are false, and the evidence is legally and factually insufficient to support findings of the existence of the elements of libel. (Points 16, 17, and 18)

B. The statements were privileged and there is no evidence or, in the alternative, the evidence is insufficient, to establish the existence of facts sufficient to defeat the privilege. (Points 1, 2, 3, 4, 5, and 19)

C. The evidence is legally and factually insufficient to support the awards of actual damages, and the awards of actual damages are excessive. (Points 6, 7, 8, 9, 20 and 21)

D. The awards of actual damages are erroneous because (1) exemplary damages cannot be awarded in the absence of actual damages; (2) there can be no award of exemplary damages in a case where the defamatory statements are conditionally privileged; (3) the evidence is legally and factually insufficient to support findings giving the Mayens the right to recover exemplary damages; (4) the awards of exemplary damages are excessive; and (5) the trial court erred in admitting testimony of mental anguish, humiliation, etc. suffered by Dorothy because of the allegations contained in appellants’ pleadings. (Points 10, 11, 12, 13, 14, 15, 22, 23, and 24)

A. Falsity of Defamatory Statements

For the purpose of this discussion we assume that, as the result of a series of decisions by the Supreme Court of the United States, beginning with New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), a person who seeks recovery for defamation has the burden of proving that the defamatory statement is false. The Mayens do not contend otherwise.

The answers to Issues 1, 3, and 5, submitted in connection with employer’s claim against the Mayens, do no more than establish that employer failed to prove, by a preponderance of the evidence, that it had suffered a loss as a result of fraudulent and dishonest acts on the part of the Mayens. Such negative answers, therefore, do not constitute affirmative findings that the statements concerning the Mayens, which are contained in the proofs of loss filed by employer, are false.

However, in answer to Issue 16, the jury found that the statements were made with knowledge that such statements were false or with reckless disregard of whether they were false or not. This issue properly placed the burden of proof on the Mayens, and it is clear that the issue was submitted in connection with the Mayens’ counterclaim for libel. Issue 16, therefore, is clearly referable to the only ground of recovery alleged by the Mayens. We thus have a case in which at least one issue necessary to sustain recovery for libel was submitted to, and answered by, the jury. Since appellants neither requested the submission of the omitted issues pertinent to that ground of recovery nor objected to the court’s failure to submit such additional issues, we must presume that the omitted issues were found by the court in such manner as will support the judgment in favor of the May-ens, if there is evidence to support such finding. Rule 279, Tex.R.Civ.P. (1977).

The evidence we have outlined in connection with the sufficiency of the evidence to support the answers to Issues 1, 3, and 5 is sufficient to support the implied finding that the statements are false. (Points 16, 17, and 18)

B. The Question of Privilege

Appellants assert, and the Mayens do not contend otherwise, that the statements contained in the proofs of loss were made under circumstances giving rise to a conditional or qualified privilege under applicable common law rules. See generally 36 Tex.Jur.2d, Libel and Slander § 571 (1962); Restatement, Torts (2d), §§ 594-598(A) (1976).

The parties also agree that in a libel action the defense of conditional privilege will be overcome if plaintiff proves that defendant was guilty of “malice.” However, the parties disagree concerning the meaning of “malice” and the sufficiency of the evidence to support a finding of malice.

In Dun & Bradstreet, Inc. v. O’Neil, 456 S.W.2d 896, 900-901 (Tex.1970), the Supreme Court of this State, after pointing out that the defense of common law conditional privileges (referred to in subsequent portions of this opinion as simply “conditional privilege”) can be overcome only by a showing of “actual malice,” defined that in language requiring a showing that the defamatory statement was made with knowledge that it was false or with willful disregard of whether it was false or not. The O'Neil opinion expressly holds that, insofar as the definition of malice is concerned, the rules applicable in cases involving the common law conditional privilege (referred to in subsequent portions of this opinion as “conditional privilege”) are the same as those adopted by the Supreme Court of the United States in New York Times Co., supra, and applied by the Supreme Court of Texas in El Paso Times v. Trexler, 447 S.W.2d 403 (1969) in cases involving constitutional conditional privileges (referred to in subsequent portions of this opinion as “constitutional privilege”).

The New York Times Co. doctrine, which requires a showing of knowledge of falsity or reckless disregard of truth in order to overcome the defense of constitutional privilege, was announced in a case in which the plaintiff was an elected official. Three years later, the same standard was applied to cases involving “public figures.” Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). The Mayens are not public officials. Nor can it be said that the Mayens are “public figures,” even if we accept the definition of public figure advanced in the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), which if not repudiated in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), cannot now be accepted as authoritative in view of the decision in Time, Inc. v. Firestone, 424 U.S. 448 (1976).

The Mayens must be classified as “private persons” or “private plaintiffs,” so that the applicable rules are those announced in Gertz and Firestone. Unfortunately, the terms private person or private plaintiff can be defined only negatively and, probably tautologically, in terms of a person who is neither a public official or a public figure.

In Gertz, the plurality opinion by Justice Powell contains the following language: “We hold that, so long as they do not impose liability without fault, these States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” 418 U.S. at 347, 94 S.Ct. at 3010 (emphasis added).

The qualified manner in which Justice Blackmun joined in the opinion of the Gertz plurality may cast some doubt on the question of majority acceptance of the language of the plurality opinion quoted in the preceding paragraph, but much, if not all, of such doubt disappears in view of the decision in Firestone.

In O’Neil, the Texas Supreme Court explained its refusal to distinguish between cases involving a conditional privilege and those involving a constitutional privilege as follows (456 S.W.2d at 900):

The New York Times definition of actual malice which this Court applied in El Paso Times is likewise applicable in the instant case, all three cases being libel suits, all three cases involving publishers’ privileges and all three cases requiring malice to overcome the privileges. Insofar as the definition of actual malice is concerned we do not think the instant case involving a conditional privilege is distinguishable from the New York Times and El Paso Times cases which involve First Amendment Constitutional privileges.

In O’Neil, the plaintiff was a private individual, rather than a public official or* a public figure. O’Neil was decided prior to Gertz and Firestone and, apparently, it was assumed that the rules applicable to the defense of constitutional privilege were the same irrespective of the classification of the plaintiff. It now appears that where, as here, the plaintiff is a private individual and, as here, the substance of the defamatory statement makes substantial danger to reputation apparent (418 U.S. at 348, 94 S.Ct. 2997), the First Amendment does not impose a showing of knowledge of falsity or wilful disregard of truth as a condition precedent to recovery for libel. It is now clear that O’Neil is, in fact, clearly distinguishable from New York Times and El Paso Times. The result is that if the O’Neil opinion is interpreted as holding that plaintiff’s burden in a conditional privilege case is the same as plaintiff’s burden in a constitutional privilege case, New York Times is clearly inapplicable and the problem is one of determining whether Gertz and Firestone are applicable.

The conclusion that O’Neil could not be distinguished from New York Times and El Paso Times was based on the fact that all three cases involved “publishers’ privileges” which could be overcome only by a showing of malice. The characterization of the O’Neil defendant as a “publisher” creates some difficulty.

In the law of libel a “publisher” is one who makes a libel known to any person other than the person defamed. The use of the term “publishers” in O’Neil, however, cannot be given this restricted meaning, since the Texas Court was attempting to show that it was dealing with a “publisher” in the sense that New York Times and El Paso Times dealt with publishers. To adopt the restrictive definition would amount to saying that all libel cases are indistinguishable because all libel cases necessarily have “publishers” as defendants. On the other hand, it is not easy to accept the notion that Dun & Bradstreet, a mercantile credit reporting agency which disseminates credit information to a rather restricted clientele, cannot be differentiated from a person or organization which publishes newspapers for the dissemination of information to the public in general. Stated differently, it cannot be categorically asserted that the rule formulated in Gertz and Firestone as applicable to cases where plaintiff is a private individual seeking recovery from “publishers and broadcasters” is applicable to cases where the defendant is one who publishes credit information reports.

Apparently, the only decision by the Supreme Court of Texas after the Gertz and Firestone decisions is Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809 (1976), in which it appears that the only defense was that of constitutional privilege. There, the Court said: “We hold that a private individual may recover damages from a publisher or broadcaster of a defamatory falsehood as compensation for actual injury upon a showing that the publisher or broadcaster knew or should have known that the defamatory statement was false. * * ⅜ The negligence standard of liability coupled with the ‘actual injury’ requirement established in Gertz provides a useful beginning point for the development of constitutional defamation law and has the capability of achieving a fair balance between the competing interests at stake.” 541 S.W.2d at 819-820.

Legal commentators are in disagreement as to whether Gertz is applicable to a ease involving a private defamation of a private plaintiff by a “nonmedia defendant.” Cf., e.g., Brosnahan, From Times v. Sullivan to Gertz v. Welch: Ten Years of Balancing Libel Law and the First Amendment, 26 Hastings L.J. 777, 792-793 (1975), and Hill, Defamation and Privacy Under the First Amendment, 76 Colum.L.Rev. 1205, 1226-1227 (1976). Post-Gertz reflect a similar lack of harmony. In Grenya v. George Washington University, 512 F.2d 556 (D.C.Cir.1975), the court applied common law principles without mentioning Gertz. But in Jacron Sales Co. v. Sindorf, 276 Md. 580, 350 A.2d 688 (1976), the court held that the Gertz requirement of fault was applicable in all cases in which a private plaintiff seeks recovery for libel, irrespective of the status of defendant. It can probably be said that the majority of cases, not necessarily representing the “weight of authority,” have been decided on the basis of common law rules, rather than by application of the standards enunciated in Gertz and Firestone. Robertson, Defamation and the First Amendment: In Praise of Gertz v. Robert Welch, Inc., 54 Texas L.Rev. 199, 217 (1976).

We need not here determine the proper standard to be applied to this ease. It is readily apparent that the case was tried on the theory that the defense of conditional privilege could be overcome only by a showing of knowledge of falsity or reckless disregard of truth. This Court should not reverse on the theory that a different standard was, in fact, applicable.

There is no evidence which suggests that the defamatory statements were made with knowledge of their falsity. We must, therefore, determine whether there is evidence to support the finding that the statements were made with reckless disregard of whether they were false or not.

In St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1976), it was said that in order to meet the New York Times standard, there must be sufficient evidence to permit the conclusion that the person making the defamatory statement in fact entertained serious doubts as to the truth of the statement, and that publication of the statement with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.

There is no evidence to support a finding that appellants entertained serious doubts as to the truth of the statements made in the proof of loss. One of the officers of employer testified that, to his knowledge, no loss had occurred during the period in question. This testimony clearly had reference to the knowledge of such officer prior to the investigation, and there is no evidence to indicate that, after he became aware of the results of the investigation, this witness had any doubts concerning the existence of a loss. In fact, there is no evidence to indicate that this officer knew of the results of the investigation. According to the brief of the Mayens, another officer “questioned” whether a loss of such a “staggering amount” could have occurred over such a short period of time. The evidence affirmatively establishes that this officer was not privy to the results of the investigation and, in any event, he questioned only the amount of the loss, and not the fact that employer had suffered a loss as a result of the acts of the Mayens. There is no evidence that any officer of employer who had knowledge of the result of the investigation entertained any doubt concerning the guilt of the Mayens.

If it be assumed that the applicable standard is that announced by the Texas Supreme Court in Foster, so that the defense of conditional privilege is defeated by a showing of negligence based on the fact that appellants knew or should have known that the statements were false, there is no evidence to support a finding of such negligence. As already pointed out, there is no evidence that appellants knew the statement was false.

All of the evidence establishes conclusively that the statements were made only after an expensive investigation extending over several months. The proofs of loss were filed after receipt of the conclusions of an independent certified public accountant, and apparently, after receipt of knowledge of the unusual cash purchases made by the Mayens. There is no evidence indicating the existence of circumstances which would have prompted a reasonable person to question the conclusions drawn by the independent auditor. The fact that two certified public accountants reached different conclusions is not evidence of negligence on the part of defendants, since at the time appellants received the report of their auditor the second “expert” had not initiated his investigations and appellants were completely unaware of the difference of opinion between the two. The Mayens insist that appellants should have known that the average number of invoices “lost” per month was ten, rather than two, so that appellants should have known that the conclusions drawn by their expert were based on inaccurate data. Even if the correct figure was, in fact, ten, rather than two, the amount of “lost” invoices during the period in question was abnormally large to a significant degree, and the mistake affected only the amount of the loss, without indicating that the conclusion concerning the existence of a loss was false.

The theory most favorable to the Mayens is that in this case neither New York Times, Gertz, or Foster is applicable, and that the defense of conditional privilege yields to a showing that the defamer was motivated by personal ill will or animosity toward the plaintiff. Stearns v. McManis, 543 S.W.2d 659, 666 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ). We find no evidence that the statements contained in the proofs of loss were made as a result of such ill will or animosity.

Dorothy Mayen testified that “in the last few years” Roegelein did not speak to her at sales meetings. She also testified that during the last few years, when the yearly bonuses were given to employees, Roegelein would merely hand her her check without speaking to her or offering a congratulatory handshake, although a handshake and words of congratulation were customarily exchanged between Roegelein and the employee receiving the bonus check.

The evidence establishes that during the five or six years preceding the events giving rise to this lawsuit, Dorothy had less than an outstanding record as a salesperson and, consequently, she had received no bonus. The brief of the Mayens fails to call our attention to any evidence to the effect that Roegelein made a practice of engaging in personal conversation with any of the salespersons at the sales meeting.

There is no evidence whatever of any failure of Roegelein to treat Judy in the manner he treated other employees.

The Mayens assert that personal animosity is shown by the fact that, although the fidelity bond covered losses resulting from dishonest and fraudulent acts of unidentified employees, the proof of loss nevertheless contained the statements that Judy and Dorothy were guilty of fraudulent and dishonest acts resulting in loss to employer. The proof of loss furnished employer by the bonding company contains blanks in which the employer is to insert the names of the employees suspected of causing the loss. The fact that the proof of loss was properly filled out in order to give the information called for by the form is no evidence of ill will.

Nor does the fact that employer filed suit against the Mayens support a finding of personal animosity.

The contention that the accusations against the Mayens were made for the purpose of embarrassing one of employer’s officers is certainly no evidence of animosity or ill will toward the Mayens.

The evidence shows that employer’s attorney called at the office of the district attorney and, without giving names, outlined the results of the investigation and sought an opinion concerning the possibility of an indictment. Even if the Mayens had been named as the suspect wrongdoers, the report of a suspected crime to proper authorities is conditionally privileged. It would be preposterous to hold that the making of a conditionally privileged communication is, of itself, evidence of malice.

The statements made in appellants’ pleadings were absolutely privileged and cannot be made the basis for imposing liability in the absence of showing that the statements were made with no reasonable basis for believing them to be true.

We do not agree that the fact that employer spent a considerable amount of money in the investigation of the suspected loss is evidence of ill will toward the May-ens. The purpose of the investigation was to determine if a loss had occurred and, if so, who was responsible. There is no evidence suggesting that the purpose of the investigation was to “get” the Mayens. To hold that the expenditure of money in investigation is evidence of ill will could but result in discouraging investigation prior to the making of an accusation.

Since we have held that there is no evidence to support findings which would defeat the conditional privilege, it would serve no useful purpose to consider appellants’ points concerning admissibility of evidence, the sufficiency of the evidence to support the awards of exemplary and actual damages and the excessiveness of the damage awards.

III. NEWLY DISCOVERED EVIDENCE

In view of our holding that the judgment in favor of the Mayens cannot stand, the question of whether appellants were entitled to a new trial on the question of their liability for libel becomes irrelevant.

The claimed newly discovered evidence related to evidence of additional cash purchases made by the Mayens. This evidence could be relevant only on the issue of whether the Mayens had stolen money from employer. Evidence that the Mayens had been living beyond their apparent means was introduced during the trial. The claimed newly discovered evidence was, therefore, merely cumulative of that presented at the trial, and the trial court did not abuse its discretion in overruling the motion for new trial.

That portion of the judgment denying Roegelein Provision Company recovery against Judy and Dorothy Mayen is affirmed, as is that portion of the judgment denying Roegelein Provision Company recovery against Great American Insurance Company. That portion of the judgment awarding Judy Mayen and Dorothy Mayen damages for libel against Roegelein Provision Company and William R. Roegelein, Jr., is reversed and judgment is here rendered that Judy Mayen and Dorothy Mayen take nothing.

Roegelein Provision Company shall pay one-half of the costs of this appeal and Judy Mayen and Dorothy Mayen shall each pay one-fourth of such costs.


author: ROBINSON, Chief Justice.

text:
    In the Matter of P_ A_ S_.
    No. 8829.
    Court of Civil Appeals of Texas, Amarillo.
    March 27, 1978.
    Brown & Harding, Mike Brown, Lubbock, for appellant.
    Alton R. Griffin, Crim. Dist. Atty., Cindy L. Miller, Asst. Dist. Atty., Lubbock, for appellee.
   ROBINSON, Chief Justice.

This is an appeal pursuant to Tex. Family Code Ann. § 56.01 from a district court judgment that appellant-child engaged in delinquent conduct. The State’s original petition alleged that the child had engaged in conduct in violation of Tex. Penal Code Ann. § 29.03 (aggravated robbery). Appellant asserted the affirmative defense of duress. Tex. Penal Code Ann. § 8.05. In addition to challenging the legal and factual sufficiency of the evidence, the child appeals on the ground that Penal Code § 2.04(d) violates the Due Process Clause of the Fourteenth Amendment because it requires an accused to prove the affirmative defense of duress by a preponderance of the evidence. The judgment of the district court is affirmed because the evidence supports a finding by the juvenile court that the State proved beyond a reasonable doubt that appellant did not act under duress.

Appellant and an adult accomplice robbed a convenience store in Lubbock. Appellant was identified at her adjudication hearing by the store clerk and a young customer who was in the store at the time of the robbery. Appellant testified that she committed the robbery because she was ordered to do so by one Loggins, who was living with appellant, her accomplice, and several other people in a communal arrangement. Appellant also testified, and her accomplice corroborated the fact, that Loggins had beaten appellant several days before the robbery and on the day of the robbery. Loggins drove the two women to and from the convenience store.

The State proved that appellant used Loggins’ gun in the commission of the robbery, and that Loggins did not have another weapon. The State contends that appellant could have used the gun against Loggins, and therefore she was not under immediate duress. The evidence also showed that appellant received half of the money taken in the robbery. After hearing all of the evidence, the judge entered his findings of fact and conclusions of law. He found that the defendant failed to prove the affirmative defense of duress by a preponderance of the evidence as required by Tex. Penal Code Ann. § 2.04(d). He further found that the State proved beyond a reasonable doubt that the defendant did not act under duress, and entered judgment that the appellant had engaged in delinquent conduct.

Although the Fourteenth Amendment does not require that the juvenile hearing conform with all the requirements of a criminal trial, it does require “the essentials of due process and fair treatment.” In re Gault, 387 U.S. 1, 30, 87 S.Ct. 1428, 1445, 18 L.Ed.2d 527 (1967). The Due Process Clause protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. The same considerations that demand extreme caution in factfinding to protect the innocent adult apply as well to the innocent child. In re Winship, 397 U.S. 358, 364-65, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

The constitutionality of Tex. Penal Code Ann. § 2.04(d), which places the burden of proving an affirmative defense by a preponderance of the evidence on the defendant, need not be considered to decide this case. The trial court expressly found that the State satisfied its burden of proving all of the facts necessary to constitute the crime beyond a reasonable doubt. It is a well-settled proposition of law that courts should avoid constitutional issues which are not necessary to the disposition of a case. Bowen v. United States, 422 U.S. 916, 95 S.Ct. 2569, 45 L.Ed.2d 641 (1975); Ranniger v. State, 460 S.W.2d 181 (Tex.Civ.App.-Beaumont 1970, no writ).

Tex. Family Code Ann. § 54.03(f) requires the State to prove beyond a reasonable doubt that a child has engaged in delinquent conduct before the child may be adjudicated a delinquent. Appellant contends that there was no evidence, or in the alternative insufficient evidence, to support the juvenile court’s finding that the State proved beyond a reasonable doubt that she acted voluntarily and without duress.

When reviewing a “no evidence” point of error, this court must consider only the evidence and inferences tending to support the findings of the juvenile court, disregarding all evidence and inferences to the contrary. Schiesser v. State, 544 S.W.2d 373, 377-78 (Tex.1976). The State adduced evidence that appellant did not commit the alleged offense under duress. Appellant was the only one of the three people involved in the commission of the robbery to have a gun. There is ample evidence to support the court’s finding that she could have used this gun as a means of freeing herself from any demands or threats. An admission by appellant that she received a share of the money taken supported the State’s contention that she was not just an unwilling participant in the crime. Appellant’s “no evidence” point is overruled.

When reviewing an “insufficient evidence” point of error, this court must consider the entire record and weigh all the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). In a juvenile case, the question is whether the evidence considered as a whole shows that the State sustained its burden of proof beyond a reasonable doubt. Matter of Hartsfield, 531 S.W.2d 149, 152 (Tex.Civ.App.-Tyler 1975, no writ). The trial court had the opportunity to observe the witnesses and was free to believe or disbelieve any or all of their testimony. The trial court’s finding of fact that the State proved beyond a reasonable doubt that appellant did not act under duress has ample support in the evidence. Appellant’s “insufficient evidence” point is overruled.

The foregoing holdings are dispositive of this appeal. The judgment of the trial court is affirmed.