author: SAM D. JOHNSON, Justice.

text:
    Lana Vonne SHARP et al., Petitioners, v. G. C. STACY et al., Respondents.
    No. B-5531.
    Supreme Court of Texas.
    April 7, 1976.
    Sudderth, Woodley & Dudley, Keith Woodley, Comanche, for petitioners.
    Turner, Seaberry & Warford, Virgil T. Seaberry, Eastland, for respondents.
   SAM D. JOHNSON, Justice.

This is a suit for title and possession of land pursuant to an alleged oral agreement. The jury findings were favorable to the plaintiffs, but the trial court entered judgment non obstante veredicto. The court of civil appeals affirmed. 525 S.W.2d 721. We affirm.

In 1941 Charles Henry Stacy and his wife, Maud Stacy, purchased the 160 acres of land in issue. The consideration for the conveyance was $4,240, of which $500 was paid in cash and the balance was represented by nine notes to be paid over the ensuing ten years. In 1943 Charles Henry and Maud, along with their minor children, moved onto the property and made their home there. The notes were fully paid and the vendor’s lien and deed of trust released in 1944.

One of the children who moved onto the property with Charles Henry and Maud was their teen-age son, Charles Junior Stacy (Junior). Junior married in 1945 and thereafter he and his wife, Ramona, lived with his parents for one month. They then moved off of the property and to their own residence in town. The undisputed testimony is that Junior worked the land each year subsequent to his marriage with the exception of one or two years when he was disabled and arranged with one of his brothers to do the work. Junior’s primary farming endeavors included growing peanuts and raising livestock. Junior paid his parents one quarter of the proceeds of the peanut crop for each year that he operated the farm. The taxes on the property were paid by Charles Henry each year while he was alive and Maud continued to make the annual tax payments thereafter.

Charles Henry, still living on the property, died intestate in 1957. His widow, Maud, continued to live on the property up to the date of trial. Junior died intestate in 1973 leaving his widow, Ramona, and three children. Subsequent to Junior’s death, Maud entered into a contract to sell the land to one of Junior’s nephews. Junior’s wife, Ramona, and their three children then brought this suit for possession of the land pursuant to an alleged oral agreement transferring title to the property to Junior and Ramona and, alternatively, for recovery of the cost of the improvements to the property. Though originally a plaintiff, Ramona Stacy quitclaimed her interest in the property to her children shortly before the trial and at her request was dismissed from the suit. Defendants, Maud Stacy and the other surviving children of her marriage to Charles Henry Stacy, pleaded that the alleged oral agreement is unenforceable under the statute of frauds.

The terms of the alleged oral agreement under which the plaintiffs, Junior’s children, claimed title to the 160-acre tract were described as follows in the plaintiffs’ pleadings:

“At the time Ramona Maxine Stacy and her husband, Charles Junior Stacy, moved into possession of such land, record title to such land was in Charlie Henry Stacy and wife, Maude Stacy, and the agreement was made by and between Ramona Maxine Stacy and her husband, Charles Junior Stacy, as one party and Charlie Henry Stacy and wife, Maude Stacy, as the other party, that the said Charlie Henry Stacy and Maude Stacy would deed and convey full title and ownership of such land and premises to the said Charles Junior Stacy, husband of Ramona Maxine Stacy, if Charles Junior Stacy would assist Charlie Henry Stacy and Maude Stacy in their general farming operations and carry out and perform another agreement that had been made between Charles Junior Stacy as one party and Charlie Henry Stacy and Maude Stacy as the other party at the time that such land was purchased. Such other agreement between Charles Junior Stacy and Charlie Henry Stacy and Maude Stacy, made at the time the land was purchased, being that Charles Junior Stacy would work the land and that the money or income from the operation thereof would first be used to pay off the purchase price and only then, would any of the parties be entitled to the proceeds.”

Further, according to the plaintiffs’ pleadings, “Ramona Maxine Stacy and Charles Junior Stacy, fully carried out and performed each and every requirement placed upon them under the agreement of either, or both, with Charlie Henry Stacy and wife, Maude Stacy, and in return therefor the land in question was by oral agreement transferred to them.”

During the course of his work on the farm, Junior made or arranged for numerous improvements on the property which were described as follows in the plaintiffs’ pleadings:

“. . . the planting and cultivating of a fruit orchard, the planting and cultivation of an alfalfa field, the reclaiming by hauling sand and covering of a clay field consisting of approximately 30 acres, the removal of all rocks from a peanut field of approximately 79 acres, the construction and maintenance of a fence enclosing such property, the construction and maintenance of a 60 foot hay barn, the construction and maintenance of a 100 foot implement barn, the construction and maintenance of hog barns and pens,
“. . . established coastal bermuda in fields located upon such land and constructed permanent fences and cross fences and arranged for a rock under penning around the dwelling house located upon such land, permanent corner posts, steel gates, waterways, installation of a bathroom in the house . . . .”

The plaintiffs further alleged “that the fair and reasonable cost of such improvements at the time of the making of same was the sum of $15,000.00 and that such improvements increased the value of the 160 acre tract of land by at least the sum of $15,-000.00.”

All of the jury findings were favorable to the plaintiffs. The jury found (1) that Charles Henry and Maud made an oral agreement with Junior whereby Junior was to work the 160-acre tract, use the money derived therefrom to pay for the tract, and in return Charles Henry and Maud were to convey the tract to Junior, (2) that pursuant to the oral agreement Junior went into possession of the 160-acre tract, (3) that Junior worked the land and used the money derived therefrom in paying for the land in accordance with the oral agreement, (4) that Junior made valuable improvements on the land pursuant to the oral agreement, (5) that Junior made permanent and valuable improvements in the good faith belief that the property was his own, (6) that Junior’s possession of the land was exclusive and adverse to Charles Henry and Maud, (7) that Junior made permanent and valuable improvements upon the land in reliance upon the representation that such land would be given to him, and (8) that the fair and reasonable cost of such improvements was $10,000. Upon the defendants’ motion for judgment non obstante veredicto, the trial court disregarded the jury findings and rendered judgment for the defendants.

The alleged oral agreement between Junior and his parents is clearly within the statute of frauds. Tex.Bus. & Comm.Code Ann. § 26.01(b)(4). To be resolved is whether the performance by Junior Stacy “relieves it from the operation of the statute of frauds, or, as more accurately stated, renders the contract enforcible in equity notwithstanding the statute.” Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (1921).

Hooks v. Bridgewater, supra, enumerated three requirements to relieve a parol sale of land from the operation of the statute of frauds. These in brief are: (1) payment of consideration, whether in money or services; (2) possession by the transferee; and (3) making by the transferee of permanent and valuable improvements upon the land with the consent of the trans-feror. Each of these three elements was sharply disputed in the instant case, but in view of the jury findings we will regard not only the existence of the agreement but also the payment of consideration and making of improvements as concluded favorably to the children of Junior Stacy. The crucial question is whether Junior’s possession of the land completes the three requirements and relieves the transfer from the statute of frauds.

The court of civil appeals held that Junior’s possession of the land failed to meet the requirements of Hooks v. Bridgewater because the evidence conclusively established that Junior’s possession was not exclusive and adverse. The children of Junior Stacy now assert that in order to relieve a parol transfer of land from the statute of frauds exclusive possession need not be shown if the transferee’s possession evidences a right of control which pertains to the status of owner. Accordingly, they contend that while Junior had joint physical possession of the farm with his parents, and after his father’s death with his mother, the surrounding circumstances establish that Junior’s possession of the farm was consistent with his status as owner. We must, therefore, decide whether exclusive physical possession is necessary to relieve a parol transfer of land from the statute of frauds.

Hooks v. Bridgewater dealt with a parol agreement whereby the donor, Davis, promised the father of the donee, Bridgewater, that at death he would leave all of his property to Bridgewater in consideration of a promise by Bridgewater’s father to surrender his son’s custody and control to Davis. Subsequently, the child fully performed his part of the bargain; he lived with Davis, did chores and services as needed, and was treated as Davis’ son. Davis died intestate, however, and failed to leave any property to Bridgewater, after which Bridgewater filed suit to enforce the alleged parol agreement. This court held that the parol agreement, which was clearly within the statute of frauds, was not enforceable in equity because Davis never surrendered possession of the property to Bridgewater. The court wrote:

“The opinion in Wooldridge v. Hancock, 70 Tex. 18, 6 S.W. 818, discloses that the court had in mind those very situations where, as here, the parol agreement did not contemplate the surrender of the possession of the land in the lifetime of the owner; but it held that alone to be a sufficient reason for denying the enforcement of the agreement. The opinion declares that where an owner of land makes a verbal sale or gift of it to take effect after his death but retains the possession, no title is acquired, ‘for it is essential, in case of parol gift or sale of land, that possession should accompany or follow the gift or sale; and there being no intention to part with the title — as was true of Davis — until some indefinite time in the future, there could be no exclusive adverse possession as against the owner, which seems to be necessary in order to ripen into a title.” 229 S.W. 1114 at 1118. [Emphasis added.]

Hooks v. Bridgewater is distinguishable from the instant case which involves an alleged parol transfer of land effective during the lifetime of the transferor. Nevertheless, the court of civil appeals in the instant case apparently relied on the statement in Hooks v. Bridgewater that exclusive adverse possession as against the owner “seems to be necessary” to establish title under a parol agreement. The petitioners contend that the requirement of exclusive possession set forth in Hooks v. Bridgewa-ter was dicta because in that case the trans-feror never surrendered ownership and control to the transferee.

The cases in this state dealing with parol transfers of real estate have not established exclusive physical possession by the transferee as an absolute requirement for relief from the statute of frauds. In several of the cases courts have regarded the requirement of exclusive physical possession as a significant or deciding factor. Mulkey v. Allen, 36 S.W.2d 198 (Tex.Com.App.1931); Mueller v. Banks, 300 S.W.2d 762 (Tex.Civ. App.—San Antonio 1957, writ ref’d n. r. e.); Sims v. Duncan, 195 S.W.2d 156 (Tex.Civ. App.—Galveston 1946, writ ref’d n. r. e.); Hauser v. Zook, 278 S.W. 518 (Tex.Civ.App. —San Antonio 1925, writ dism’d). However, in each of these cases the parol agreement provided for the transfer of the land at some future date and the transferor never actually surrendered ownership and control of the land to the transferee. In this respect these cases are not distinguishable from Hooks v. Bridgewater.

The result in Pappas v. Gounaris, 158 Tex. 355, 311 S.W.2d 644 (1958), was also dictated by Hooks v. Bridgewater. In Pap- pas a partnership was formed whereby one partner agreed to provide a tract of land and the other partner agreed to furnish funds with which to erect a building thereon. The controlling issue in the case was whether the tract of land in question became partnership property pursuant to an alleged parol transfer, and this court held that the parol transfer to the partnership was condemned by the statute of frauds. Although this court stated that the transferee’s possession must be exclusive and adverse to relieve such a parol transfer from the statute of frauds, it is clear that the court was not referring to physical possession of the land. The basis for the decision in Pappas was that the transferor never fully relinquished his control over the property.

Some courts have refused to enforce pa-rol transfers of land in praesenti because the transferors remained on the property after allegedly surrendering possession and title to the transferees. Thornton v. Central Loan Co., 164 S.W.2d 248 (Tex.Civ.App.—Austin 1942, writ ref’d); Leverett v. Leverett, 59 S.W.2d 252 (Tex.Civ.App.—Texarkana 1933, writ ref’d); Johnican v. Tomasino, 248 S.W.2d 207 (Tex.Civ.App.—Galveston 1952, writ ref’d n. r. e.). In Thornton, which closely parallels the instant case, a son was requested by his parents to return to their farm and manage it, in return for which the parents promised to immediately transfer the property to the son. Pursuant to this parol agreement, the son returned to Texas with his family and undertook management of his parents’ farm. The parents continued to live on the farm. At the same time, the son rented a house in a nearby town in which his family was to live, but either he or his wife was always on the farm with his parents, whom they eared for up until the time of the parents’ deaths. There was no evidence that the son ever paid any rent to his parents. After reviewing the evidence, the court concluded:

“This possession as testified to and admitted could have been the possession of landlord and tenant as well as under a secret ownership. While it was open, actual and notorious, it was not attended with any circumstances showing a transfer of possession from the donor to the donee in such a way that the possession itself attested that the father and mother gave the land by parol gift to the son.” 164 S.W.2d 248 at 251. [Emphasis added.]

While the Thornton court echoed the statement from Hooks v. Bridgewater that a donee’s possession must be exclusive, the basis for the court’s holding was the absence of any circumstances indicating a surrender of ownership and control by the donor.

In Leverett the court reached a similar conclusion with respect to a parol transfer of land from one brother to another where the brothers owned interests in the land in question as co-tenants. After holding that “the possession must be referable to the claim of parol sale or gift, and not consistent with any previous right of possession of the grantee in the property” the court concluded that the possession of the brother who claimed under the alleged parol transfer of land was at all times consistent with his status of co-tenant. 59 S.W.2d 252 at 255. The evidence therefore failed to show a surrender of ownership and control by one co-tenant to the other co-tenant. Similarly, in Johnican, where the transferors and transferees lived together in the same house on the premises, it was held that there was an absence of circumstances indicating a surrender of ownership and control by the transferors. Furthermore, the Joh-nican court emphasized that there was no evidence of any improvements made by the transferees during the lifetime of the trans-ferors. Thus, the results in Thornton, Lev-erett, and Johnican were based upon the transferees’ failure to show any surrender of ownership and control by the transferors rather than upon an absolute requirement of exclusive physical possession.

Several cases have held that joint physical possession of the land by the transferor and transferee does not preclude relief from the statute of frauds where the transferee’s possession clearly evidenced a surrender of ownership and control by the transferor. Davis v. Douglas, 15 S.W.2d 232 (Tex.Com.App.1929, holding approved); Scott v. Cliett, 213 S.W.2d 562 (Tex.Civ.App.—Galveston 1948, no writ); Lehman v. Barry, 126 S.W.2d 499 (Tex.Civ.App.—Waco 1939, writ dism’d jdgmt. cor.). Each of these cases involved a parol transfer of land in praesenti; consequently, Hooks v. Bridge-water was not controlling. In the leading case, Davis, a parol gift of land was made which became effective during the lifetime of the donor, an elderly lady named Millie. Immediately following the gift the donee, Josephine, and her husband, Monk, moved into the dwelling on the land and lived there along with Millie until her death. Permanent and valuable improvements were made on the land by Josephine and Monk while Millie was still alive. The court held that “[t]he possession shown to have been taken and held under the gift is such, it is thought, as to meet the second requirement of the above rule, notwithstanding the fact that Millie lived on the premises with Josephine and Monk.” 15 S.W.2d 232 at 233.

This court, in Dawson v. Tumlinson, 150 Tex. 451, 242 S.W.2d 191 (1951), clarified and elaborated upon the quality of possession required to relieve a parol transfer of land from the statute of frauds. In that ease the donor, an elderly lady named Jane Davis, made a present gift of the property on which her residence was located to her neighbors, Len and Lena Claiborne. The gift was made in return for the Claibornes’ promise to care for Jane Davis during the remainder of her life. The Claibornes continued to reside on their own property but regularly performed chores in Jane Davis’ house, including cleaning, taking meals, and providing firewood until Jane Davis’ death. This court held that the Claibornes’ possession was not adequate to relieve the parol gift from the statute of frauds. In so holding, the court stated that the possession required to relieve a parol transfer from the statute of frauds must evidence a “right of control which pertains to the status of owner” or be “possession which in itself attests the fact that such possession is intended as a delivery under the parol gift.” 242 S.W.2d 191 at 194. In concluding that the Claibornes’ possession of Jane Davis’ property did not satisfy the above criteria, this court looked to the improvements made by the Claibornes, the extent of the Claibornes’ management of the property, and other circumstances relative to the Claibornes’ possession.

This court does not adopt exclusive physical possession as an absolute requirement in order to relieve a parol transfer of land from the statute of frauds. Such a requirement would create arbitrary results in difficult cases and frustrate the equitable rule of Hooks v. Bridgewater where “non-enforcement of the contract — or the enforcement of the statute — would, itself, plainly amount to a fraud.” 229 S.W. 1114 at 1116. The instant case must be decided upon the broad principles announced in Dawson. In determining whether Junior’s possession of the farm satisfied the criteria set forth in Dawson we consider only the circumstances relative to his possession which evidence a surrender of ownership and control by Junior’s parents. Circumstances that may be explained quite separate and apart from a surrender of ownership and control by Junior’s parents will not be considered.

We conclude that Junior’s possession of his parents’ farm did not evidence a surrender by his parents of their ownership and control of the property. The jury finding that Junior’s possession of the farm was adverse to his parents was either immaterial or there was no evidence to support it.

The fact that each year Junior paid his parents one quarter of the proceeds from the peanut crop is not unequivocally referable to the status of ownership, and more strongly suggests the existence of a lease or tenant farming arrangement. Furthermore, it appears that Junior paid one quarter of the proceeds to his parents every year that he operated the farm. Presumably, if Junior had been buying the land he would at some point have paid off his indebtedness and ceased making the payments. The substantial and permanent improvements that Junior made or arranged for upon the land might be considered referable to Junior’s status as owner, except that many if not most of the improvements were paid for by Junior’s parents. The making of improvements by a transferee does not evidence a surrender of ownership and control if the transferor is also making improvements or paying for them. Neither does the fact that Junior farmed the land exclusively evidence a surrender of ownership and control because his parents continued to live on the farm. Finally, testimony that the land was referred to as “Junior’s place” or that Junior’s parents stated on occasion that the farm belonged to Junior did not constitute any evidence that Junior occupied the farm as owner. This is exactly the type of evidence that Hooks v. Bridgewater meant to exclude from consideration. The “reason for the requirement of possession is that without it the existence of the contract rests altogether in parol evidence, which common experience has shown to be too unstable and uncertain to be permitted to work a divestiture of title to real property.” Hooks v. Bridgewater, supra, at 1117.

The remaining issue is whether the court of civil appeals properly denied Junior Stacy’s children any recovery for the improvements that Junior made on the farm. In this regard the jury found that Junior placed permanent and valuable improvements on the farm in the good faith belief that the property was his own, that in placing such improvements on the farm Junior relied upon the representation that the land would be given to him, and that the fair and reasonable cost of such improvements was $10,000. There was, however, no special issue inquiring about the enhancement in the value of the farm due to the improvements. In denying recovery for the improvements the court of civil appeals held that Junior’s children were entitled to recover for the improvements only to the extent that they enhanced the value of the land. Accordingly, the court concluded that the jury finding regarding the cost of the improvements was immaterial and that Junior’s children waived their right to recover for the enhancement in value of the farm by failure to submit a proper special issue. We agree.

The principle is well established in equity that a person who in good faith makes improvements upon property owned by another is entitled to compensation therefor. The measure of compensation to the claimant is not the original cost of the improvements, but the enhancement in value of the land by reason of the improvements. Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620 (1935); Tashnek v. Hefner, 282 S.W.2d 298 (Tex.Civ.App.—Galveston 1955, writ ref’d n. r. e.); Annot., 24 A.L.R.2d 11, 31; 42 C.J.S. Improvements § 11, at 446-49. The children of Junior Stacy, having failed to secure a jury finding on the issue as to the enhancement in value of the farm by virtue of the improvements are precluded from recovering compensation for the improvements. Tex.R.Civ.P. 279; Lindsay v. dayman, 151 Tex. 593, 254 S.W.2d 777 (1952).

In summary, we hold that the alleged parol transfer of the property from Charles Henry and Maud Stacy to their son, Junior, was condemned by the statute of frauds and that Junior never acquired any interest in the farm pursuant to said parol transfer. We further hold that Junior’s children are not entitled to any compensation for the improvements placed on the farm by their father.

The judgments of the trial court and the court of civil appeals are affirmed.

      . The charge of the court did not define the term “adverse.”

      . See Francis v. Thomas, 129 Tex. 579, 106 S.W.2d 257 (1937).


source: Caselaw Access Project

author: DALLY, Commissioner.

license: Public Domain

text:
    Clifton Delaney WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 51265.
    Court of Criminal Appeals of Texas.
    March 31, 1976.
    Rehearing Denied April 28, 1976.
    Arthur J. Brender, Fort Worth, for appellant.
    Tim C. Curry, Dist. Atty., Jerry Buckner, Bill A. Leonard and Robert S. Williams, Asst. Dist. Attys., Fort Worth, Jim D. Vol-lers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for robbery; the punishment, enhanced by proof of a prior conviction, is imprisonment for life.

The appellant asserts in four grounds of error that the court committed fundamental error by erroneously instructing the jury that it could find the appellant guilty on a theory not charged in the indictment. Also, it is urged that the appellant’s appointed trial counsel was ineffective. Although there is no contention that the evidence is not sufficient to sustain the conviction, a brief preliminary summary of the facts will help in understanding the appellant’s grounds of error.

The appellant testified in the guilt-innocence phase of the trial. After giving testimony concerning prior convictions he made a full judicial confession of his guilt. He related details concerning his family’s economic plight and then said that he had “a little old black pistol” which he put in his pocket and went out trying to get some money. As he was walking near a Church’s Fried Chicken establishment he testified: “I needed some money. Well, I just robbed this place and got some money. I had a little black pistol in my pocket. I didn’t have a mask on as Miss Richardson explained, and well- — I pulled my little black pistol out and told her to give me money. And she gave it to me and I left.”

The complainant identified the appellant as the man who had committed the robbery and said she had seen him at the place where she was robbed on two other occasions. She testified that when the appellant pointed the pistol at her she was in fear of imminent bodily injury or death. There is no evidence that the complainant received any kind of bodily injury.

The appellant was charged by indictment with committing the offense of aggravated robbery under the provisions of V.T.C.A. Penal Code, Sec. 29.02(a)(2) and Sec. 29.-03(a)(2) in the following language:

. . did then and there by using and exhibiting a deadly weapon, to-wit: a handgun, intentionally and knowingly threaten and place Shirley Ann Richardson in fear of imminent bodily injury and death.”

The indictment did not charge the appellant with intentionally, knowingly or recklessly causing bodily injury to the complainant. [V.T.C.A. Penal Code, Sec. 29.02(a)(1)], and it did not charge the appellant with causing serious bodily injury to the complainant [V.T.C.A. Penal Code, Sec. 29.-03(a)(1)],

The court instructed the jury in paragraphs 4 and 5 of the charge as follows:

“4.
“Now if you find from the evidence beyond a reasonable doubt that on or about the 25th day of May, 1974, in Tar-rant County, Texas, the defendant, Clifton Delaney Williams, did, without the effective consent of Shirley Ann Richardson, the owner, take and exercise control over the corporeal personal property of Shirley Ann Richardson, to-wit: money, from the possession of Shirley Ann Richardson, with intent then and there to deprive Shirley Ann Richardson, of said money, and that said defendant, in so doing, and with intent to acquire and maintain control of said money, intentionally, knowingly, or recklessly caused bodily injury to said owner or intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and if you further find from the evidence beyond a reasonable doubt that in so doing the foregoing acts, if you do so find, the defendant caused serious bodily injury to Shirley Ann Richardson or defendant used or exhibited a deadly weapon, to-wit: a gun, then you will find defendant guilty of aggravated robbery as charged in the indictment.
“5.
“If you find from the evidence that the defendant committed the offense of robbery, as herein defined, but you have a reasonable doubt as to whether he caused serious bodily injury to Shirley Ann Richardson or as to whether he used or exhibited a deadly weapon in committing said robbery, then you will find the defendant guilty only of robbery and not of aggravated robbery. If you have a reasonable doubt as to whether the defendant is guilty of any offense, that is, aggravated robbery or robbery, then you will acquit the defendant and say by your verdict not guilty.”

The jury found the appellant guilty of robbery, not aggravated robbery, so we need only consider the instruction on robbery. In construing paragraphs 4 and 5 of the charge, it is obvious the jury had an alternative to find the appellant guilty if it found he had intentionally, knowingly or recklessly caused bodily injury to the complainant. This was a theory not charged in the indictment. The charge was erroneous in this respect.

We must determine whether this erroneous instruction was fatally defective in the circumstances here presented. See Article 36.19, V.A.C.C.P., which provides:

“Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of the trial.”

At the time of trial there was no objection to the charge on the grounds now urged and no specially requested charge was presented to the court. See Articles 36.14 and 36.15, V.A.C.C.P. Furthermore, it is highly unlikely that the jury was confused or misled because there was no evidence that the complainant received any bodily injury. In addition, the evidence is amply sufficient to support a conviction for the greater offense of aggravated robbery. In the circumstances presented by the facts of this case we hold the giving of the erroneous charge was not reversible error. Article 36.19, V.A.C.C.P. Cf. Fox v. State, 62 Tex.Cr.R. 430, 138 S.W. 413 (1911); Evans v. State, 67 Tex.Cr.R. 35, 148 S.W. 573 (1912).

We also reject the appellant’s remaining contention that his trial counsel was ineffective because he failed to object to the court’s charge on the same grounds which have been urged on appeal and which have been previously discussed. The adequacy of an attorney’s services must be gauged by the totality of the representation. Lee v. State, 505 S.W.2d 816 (Tex.Cr. App.1974); Williams v. State, 513 S.W.2d 54 (Tex.Cr.App.1974). The appellant made a full and complete judicial confession and, as already pointed out, the evidence is amply sufficient to have supported a conviction for the greater offense of aggravated robbery. Having reviewed the entire record in light of the holdings of this Court, we find the appellant received effective assistance of counsel.

The judgment is affirmed.

ONION, P. J., concurs in result.


author: ODOM, Judge.

text:
    Roger Dale HESTER, Appellant, v. The STATE of Texas, Appellee. Randall Lewis NYMAN, Appellant, v. The STATE of Texas, Appellee.
    Nos. 49924-49929.
    Court of Criminal Appeals of Texas.
    April 14, 1976.

      Bill Bender, Seguin, for Roger Dale Hester.
    Malcolm C. Halbardier, San Antonio, for Randall Lewis Nyman.
    Ted Butler, Dist. Atty., Charles T. Cona-way, Lucien B. Campbell and Susan D. Reed, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Each appellant was convicted for two murders and one burglary of a private residence at night. Punishment was assessed at life for each murder conviction and at sixty years for each burglary.

Each appellant contends the trial court erred in admitting written confessions into evidence. Each filed a motion to suppress his own confession. Following a hearing on the motions they were overruled by the trial court and the evidence was subsequently admitted. In their briefs appellants challenge that ruling on several different grounds.

The transcribed court reporter’s notes for the hearing on the motions to suppress exceed 400 pages. Twenty-two witnesses testified to events occurring over a period of several hours at different locations with different people present at different times and for different periods of time. While the cold record is before us in its entirety, it remains but a cold record. It is the trial court that is charged with finding the facts and applying the law. Art. 38.22, Sec. 2, V.A.C.C.P., requires the trial court to enter an order stating its findings. On appeal challenges to the trial court’s ruling generally should be directed to whether the trial court abused its discretion in one of its findings of fact or to whether the trial court properly applied the law to those facts found by it. This Court is not the proper forum for the initial fact-finding process, but should restrict its review of the facts to any issues raised in challenge to the trial court’s findings. Without adequate findings of fact this Court is much handicapped in its review upon appeal of the trial court’s ruling, because it lacks an adequate record of the basis for that ruling. One purpose for requiring the trial court to “enter an order stating [its] findings” (Art. 38.22, Sec. 2, V.A.C.C.P.) is to make the record reflect, for the parties and for possible appellate review, the basis for the ruling.

The trial court’s order in the instant case reads as follows:

“ORDER
“The Court finds that the statement or confession of the defendant, RANDALL LEWIS NYMAN, marked State’s Exhibit NO. 2, to have been voluntarily made contemporaneously with a knowledgeable waiver of right to assistance of counsel and is held to be admissible as a matter of law and fact.
“The court further finds that the statement of the defendant, ROGER DALE HESTER, marked State’s Exhibit NO. 3, to have been voluntarily made contemporaneously with a knowledgeable waiver of the right to assistance of counsel and it is held to be admissible as a matter of law and fact.
“The Motions to Suppress, three Motions to Suppress are in their entirety overruled.”

This order does not recite the findings of the trial court in any detail. It does not resolve numerous disputed fact issues upon which appellants’ grounds of error are based. As a result it does not assist this Court in determining the sufficiency of the evidence to support whatever unstated findings of fact were made by the fact finder. Consequently, we are unable to review the findings challenged by the appellants’ grounds of error.

The order required by Article 38.22, Sec. 2, V.A.C.C.P., must recite the court’s findings on relevant disputed fact issues.

The disputed fact issues upon which findings should be returned to this Court should be apparent from the parties’ briefs filed in the individual cases. The trial judge may also review the transcription of the testimony upon which the original order was entered,-if necessary, in order to aid his recollection of the findings previously made.

In this case we abate the appeal and direct the trial judge to reduce to writing his findings on the disputed fact issues surrounding the taking of appellants’ confessions raised in the grounds of error challenging the court’s ruling on their admissibility, and to file with this Court his certificate reciting those findings.

The appeals are abated.

      . See also Jackson v. Denno, 378 U.S. 368, 391, 84 S.Ct. 1774, 1788, 12 L.Ed.2d 908 (1964), wherein it was stated:
      “These procedures [for determining the voluntariness of a confession] must, therefore, be fully adequate to insure a reliable and clear-cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the volun-tariness issue may depend.” ,


text:
    O. D. MOORE, Appellant, v. The STATE of Texas, Appellee.
    No. 51220.
    Court of Criminal Appeals of Texas.
    April 14, 1976.
    Macon D. Strother, San Augustine, for appellant.
    Bill A. Martin, Dist. Atty., Newton, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for murder with malice under our former Penal Code. A jury assessed punishment at confinement for life.

Appellant contends the trial court erred in requiring him to wear handcuffs in the presence of his jury.

The record reflects that on two occasions, in full view of the jury panel, the sheriff escorted appellant in handcuffs into the courtroom and removed the handcuffs after appellant was seated. Objections were made outside the hearing of the jury on each occasion and a motion to dismiss the panel and draw another panel was made and overruled. Three other times during the trial appellant was brought into the courtroom in handcuffs and seen by jurors.

After the first objection the trial judge stated that he would consult the sheriff as to the necessity of the handcuffs. At the hearing on appellant’s motion for new trial, the sheriff attempted to explain the use of handcuffs.

As justification for the action complained of, the sheriff testified that it was necessary to take appellant “out of [my] jail, across the courthouse campus, up inside the courthouse, upstairs, and into an empty room, which is the district clerk’s office, and then into the courtroom.” Because large crowds were gathered, it was felt that for the protection of all appellant should be handcuffed during the trips between the jail and the courthouse.

No justification at all was necessary for handcuffing the appellant during trips between the jail and the courthouse, for the record does not reflect that any juror would have had occasion to see him during such trips. This is not true of such display before jurors. The harm that a defendant suffers when the jury sees him in handcuffs is that his constitutional presumption of innocence is thereby infringed. Thompson v. State, Tex.Cr.App. 514 S.W.2d 275; Walthall v. State, Tex.Cr.App., 505 S.W .2d 898; Hernandez v. Beto, 443 F.2d 634 (5th Cir. 1971); see also American Bar Association Standards Relating to Trial by Jury, Sec. 4.1 (Approved Draft, 1968). In Gray v. State, 99 Tex.Cr.R. 305, 268 S.W. 941, this Court stated:

“We desire to make it perfectly plain that we regard a trial with the prisoner in irons as obnoxious to the spirit of our laws and all ideas of justice, and it is only when the record brings the case clearly within one of the rare exceptions that we would consent for a conviction to stand. Before a judge should permit a case to proceed under such circumstances, he should be very sure of his ground.” 268 S.W. at 950.

The “rare exceptions” referred to in Gray are:

“ . . . if, in the sound discretion of the court, it appears necessary to retain his shackles to prevent the escape or self-destruction of the prisoner, or to prevent him from injuring bystanders or officers of the court, or if necessary to maintain a quiet and peaceable trial, the court may try the prisoner without having the shackles removed; his action being subject to the closest scrutiny and review by the appellate court.” 268 S.W. at 949.

In the instant case apparently neither the sheriff nor the trial judge believed that any such “rare exceptions” existed because appellant was in fact allowed to sit free and unfettered during the trial itself.

We conclude from the failure of the record to affirmatively reflect sufficient reasons for the appellant to be viewed by the jurors in handcuffs that the trial court abused its discretion in permitting such action over appellant’s objection.

Because of our disposition of this ground of error, it is not necessary to rule on appellant’s complaint relating to jury misconduct during punishment deliberations. We note, however, that jury discussion of parole laws is always misconduct; whether the same constitutes such error as to mandate reversal depends upon the particular circumstances of each case. Heredia v. State, Tex.Cr.App., 528 S.W.2d 847.

The trial court should always attempt to eliminate the possibility of such misconduct by instructing the jury at the punishment phase that it should not discuss or consider the possible effects of the parole laws or system. No such instruction appears in the record herein.

The judgment is reversed and the cause remanded.

      . We note that but for the evidence adduced at this hearing the record would be barren of any justification for the sheriffs actions. We reiterate that it is the responsibility of the trial court to cause the record to reflect the reasons why a defendant must appear before the jury in handcuffs. Thompson v. State, 514 S.W.2d 275, Tex.Cr.App.; Walthall v. State, 505 S.W.2d 898 (Tex.Cr.App.); Romero v. State, 493 S.W.2d 206, Tex.Cr.App.


author: DAVIS, Commissioner.

text:
    Michael DeWayne HAWKINS, Appellant, v. The STATE of Texas, Appellee.
    No. 51686.
    Court of Criminal Appeals of Texas.
    April 14, 1976.
    William H. Kugle, Jr., Athens, for appellant.
    Curtis L. Owen, Dist. Atty., and Frank 0. McClendon, III, Asst. Dist. Atty., Tyler, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for aggravated robbery with a deadly weapon. Trial was before the court upon a plea of guilty, and punishment was assessed at twenty-five years.

The indictment alleged that the offense occurred on or about December 1,1974, and the record reflects that trial was in April, 1975.

In his sole ground of error, appellant contends, “The trial court erred in overruling appellant’s plea of former jeopardy.”

Appellant’s plea of jeopardy is bottomed upon the fact that prior to the trial in the instant case he was convicted of the offense of possessing a prohibited weapon, “a shotgun with an overall length of less than twenty six inches.” Appellant argues that the trial in the instant case was in effect a second trial for the same offense.

A stipulation of testimony introduced into evidence at the trial of the instant case recites in pertinent part:

■ if one David Addington were present today, he would state that he is the manager of a Safeway Grocery Store located on South Vine Street in Tyler, Smith County, Texas, and that on the 1st day of December, 1974 ... he was confronted by an individual being a black male, carrying a sawed off shotgun; that at said time there was forty-two hundred dollars in cash present in the store, and on this date he did not give one Michael Dewayne Hawkins [appellant] or anyone else consent or permission to take therefrom any money, property, United States currency or anything else of value without his consent or permission; and that the said Michael Dewayne Hawkins did place him in fear of imminent bodily injury and death by pointing a sawed off shotgun in his direction. ... if Willie Hardy and Jack Grady of the Tyler Police Department were present today, they would testify that on the 1st day of December, 1974, in Smith County, Texas, they were at a location on South Vine, being a Safeway Store, wherein Officer Hardy had observed four black males around Fifth Street in Tyler, Texas, going in the direction of the Safeway Store, they were all dressed similarly, having caps, coats, sunglasses and gloves on; that a short time later he had radio messages indicating that four males of the same description had peeked around the corner of the Safeway Store, at which time two of them went into the store, one of which is identified as Michael Dewayne Hawkins, who was carrying a sawed off shotgun, the other identified as John Edward Johnson, who was later apprehended carrying a .25 caliber automatic; . . if Bob Bond were present, he would testify and identify Michael Dewayne Hawkins, who is seated to the right of Counsel, Mr. Kugle, as being the individual from whom a twelve gauge sawed off shotgun was taken from at said location on the 1st day of December, 1974.”

The more recent cases relied upon by appellant are Ex parte Evans, 530 S.W.2d 589; Ex parte Calderon, 508 S.W.2d 360; Price v. State, 475 S.W.2d 742; Duckett v. State, 454 S.W.2d 755.

In Duckett, the defendant was first convicted of robbery by assault with firearms of one Leonard Cash, and was also convicted for assault to murder Cash. Both convictions were for the same assault upon the same person occurring at the same time and place. This Court reversed the second conviction, holding that the conviction for the assault to murder being the same transaction and upon the same evidence as the robbery by assault with a firearm constituted double jeopardy.

In Price, the defendant jumped in the victim’s car, placed a knife to her throat and directed her to drive to a specified place. After ordering her to park, defendant told the victim to get into the back seat. At about the point in time that the defendant was trying to remove a ring from the victim’s right hand, police came upon the scene and arrested defendant. Defendant was first convicted of false imprisonment and then for the offense of aggravated assault. This Court reversed the conviction for aggravated assault, finding that there was but a single transaction and that the evidence upon which the two convictions were based was the same.

In Calderon, defendant was convicted of indecent exposure, statutory rape and fondling, “all proven by [the] same acts and evidence as a single assault” on one individual even though “the three offenses are in contemplation of law separate and distinct.” This Court held that the defendant had been placed in jeopardy after his plea to the first cause.

In Evans, the defendant took the victim’s wallet, shot the victim, forced the victim to flee and stole the victim’s auto. Defendant was first convicted of the offense of robbery by assault and later entered a plea of guilty to felony theft based upon the taking, of the victim’s auto. While the robbery indictment did not include an allegation that the defendant took the victim’s vehicle, this Court found,

“ . . . the time sequence of events was continuous and did not break the chain of antecedent violence perpetrated upon the complaining witness so as to give rise to the inception of another separate and distinct offense. See Lamberson v. State, 509 S.W.2d 328 (Tex.Cr.App. 1974).
“Therefore, we hold that the continuous nature of the assaultive action by the petitioner in this case would have permitted prosecution for one offense; i. e., robbery. The prosecution for theft should have been barred by the ‘carving’ doctrine.”

Some of the more recent cases in which this Court held that double jeopardy did not apply are Waffer v. State, 504 S.W.2d 408; Jones v. State, 502 S.W.2d 164; Bradley v. State, 478 S.W.2d 527; and Muncy v. State, 505 S.W.2d 925.

In Waffer, defendant and his two companions were identified by two teenager victims as the men who came upon them while they were parked at night by a lake. The three men, one of whom had a rifle, demanded that the boy give them his billfold. After the billfold was taken, the boy was placed in the trunk of the car and his female companion was raped by the men. This Court held that the defendant’s conviction for assault with intent to rob did not preclude a prosecution for rape, noting that there were two separate offenses, two victims and that the transactions did not occur at the same time or place. In Waffer, the Court relied on the reasoning in Jones v. State, supra, where the defendant was tried for robbery by assault on one person, and assault with intent to murder on another. The evidence showed that the assault to murder occurred during the robbery. The Court, in refusing to hold the conviction for assault with intent to murder to be double jeopardy in the robbery case, said:

“Appellant committed two separate, distinct and independent acts while robbing Melva Lee, the robbery of Lee and the assault on Williams. He admitted in his judicial confession that during the robbery of Lee, he, with malice aforethought and with intent to kill, shot Virginia Williams. As in Bradley, supra there are two victims, a separate victim for each offense. The transactions, though occurring at the same time and place, constitute separate offenses involving separate issues of law.”

In Bradley v. State, supra, the doctrine of “carving” was not held applicable where defendant was convicted of two robberies, one conviction being based on the robbery of the owner of the liquor store, and the other being a robbery of a customer who entered the store before the robbers left. In Bradley, the Court found that there were separate acts and separate robberies committed.

In Muncy v. State, 505 S.W.2d 925, defendant as the result of a high speed chase terminating in a collision was first convicted for fleeing from a police officer which was followed with a conviction for aggravated assault with a motor vehicle. The Court held that they were separate and distinct offenses and the doctrine of carving would not apply. In Muncy, it was stated:

“Appellant committed the offense of fleeing from a police officer the moment he failed to stop at the signal from the officer. Art. 6701d, Sec. 186(a), Vernon’s Ann.Tex.Civ.St. Appellant could have committed the offense of aggravated assault with a motor vehicle anytime he willfully or negligently collided with another in a manner causing injury less than death. Art. 1149, supra. Neither offense is a lesser included offense or necessary element of the other. Two offenses here charged are separate and distinct offenses.”

While the foregoing do not constitute all of the recent eases of this Court addressed to the issue in question, they do point to a common thread which appears to run through all the decisions reviewed in which this Court has held that jeopardy attached. The common factor has been an uninterrupted and continuous sequence of events or assaultive acts directed toward a single victim.

In the instant case we find that the possession of the prohibited weapon and the robbery were separate and distinct offenses in law and in fact. In the recent case of Robinson v. State, 530 S.W.2d 592, the defendant entered the grounds of the University of Houston without authority and stole a bicycle which was the property of the University. This Court held the offense of criminal trespass was committed the moment the defendant without authority entered the prohibited area of the University and that the subsequent theft of the bicycle from the premises was a separate transaction and that the convictions were not viola-tive of the doctrine of carving.

Similarly, the moment appellant was placed in possession of the prohibited weapon the offense of possession of a prohibited weapon was complete. V.T.C.A. Penal Code, Sec. 46.06 (Prohibited Weapons); see Muncy v. State, supra. It follows that the facts which constituted the offense of possession of a prohibited weapon, in and of themselves, cannot be characterized as an assaultive act directed toward the victim of the robbery.

We reject appellant’s contention that the trial court erred in overruling his plea of former jeopardy.

The judgment is affirmed.

Opinion approved by the Court.

ONION, P. J., dissents.

      . Appeal was taken in this cause and the conviction was affirmed in a per curiam opinion in Cause No. 51,689 by this Court on January 21, 1976.


author: ONION, Presiding Judge.

text:
    Ex parte Michael JEWEL.
    No. 51692.
    Court of Criminal Appeals of Texas.
    April 14, 1976.

      Ted Redington, Huntsville, for appellant.
    Joe Max Shelton, City Atty. and W. Ralph Petty, Jr., Asst. City Atty., Sherman, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an application for writ of habeas corpus brought under the provisions of Article 11.07, Vernon’s Ann.C.C.P. See Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App. 1967).

The petitioner contends he has been placed in double jeopardy by being convicted for murder with malice and robbery by assault with a firearm growing out of the same transaction upon the same victim, Fred Wright.

The record reflects that on August 26, 1970, in Cause No. 28,779 in the 59th District Court of Grayson County the petitioner was convicted by a jury of murder with malice aforethought of Fred Wright, and his punishment was assessed at death, which was commuted by the Governor to life imprisonment in May of 1973. On September 17, 1970, in Cause No. 28,778 in the same District Court the petitioner entered a guilty plea to robbery by assault with a firearm, and his punishment was assessed by the court at confinement for ninety-nine (99) years. Both causes were heard before the same trial judge. No appeal was perfected in either case.

In his application for post-conviction ha-beas corpus it was alleged that the petitioner and one James Roger Farris allegedly approached Fred Wright with a gun and demanded his money, and that Wright refused and a struggle ensued in which the petitioner and Farris shot and killed Wright and then took his money and left the scene.

Upon the application being presented to the convicting court, the judge, who was not the same judge who had presided at the prior trials, concluded the facts were not in dispute and an evidentiary hearing was not necessary. He did file findings of fact and conclusions of law as a result of which he concluded the petitioner was not entitled to relief. Among other things, he noted that petitioner had pled guilty and had not appealed, and habeas corpus cannot be substituted for an appeal, and before relief can be granted on collateral attack the error must be fundamental and the conviction void.

This court is, of course, not bound by the findings of the trial court in a habeas corpus proceeding. Ex parte Bazemore, 430 S.W.2d 205 (Tex.Cr.App.1968); Ex parte Swinney, 499 S.W.2d 101 (Tex.Cr.App.1973); Ex parte Stauts, 482 S.W.2d 638 (Tex.Cr. App.1972); Ex parte Bagley, 509 S.W.2d 332 (Tex.Cr.App.1974).

It is well established that “the prosecuting attorney may carve as large an offense out of a single transaction as he can, but he must cut only once . . . .” 1 Branch’s Ann.P.C., 2d Ed., Sec. 654, p. 625; Fleming v. State, 168 Tex.Cr.R. 505, 330 S.W.2d 457 (Tex.Cr.App.1959). An accused cannot be placed in jeopardy for the same criminal act. See also Article 1.10, Vernon’s Ann.C.C.P.

Still further, in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the United States Supreme Court declared the double jeopardy provisions of the Fifth Amendment applicable to the states.

In Herera v. State, 35 Tex.Cr.R. 607, 34 S.W. 943 (1896), it is written:

“ ■ • • Applying the test to ascertain whether or not the indictments are for the same offense, it will be seen that in the second case, charged against the appellant, to sustain the robbery it was necessary to prove the assault. Indeed, the robbery could not be sustained without proof of the same assault for which appellant had previously been convicted on a charge for assault with intent to murder. The offenses, in part, at least, are of a like character. They relate to one transaction. And, while the charge of robbery contains more of criminality than the other, yet upon the assaulting part of the charge, upon which the robbery only could be sustained (though embraced in it), the assault with intent to murder is predicated. The offenses, though bearing different names, would appear, by the rule laid down within our constitutional guaranty, the same.” See also Paschal v. State, 49 Tex.Cr.R. 911, 90 S.W. 878 (1905).

In Moore v. State, 33 Tex.Cr.R. 166, 25 S.W. 1120, 1121 (1894), the conviction was for assault with intent to murder. The defendant had been previously convicted of robbery from the same person. There it was written:

“It has been well said that ‘the assault or violence in the robbery case being an essential element or ingredient of the offense, and constituting an important and material part of that offense, as it does in the offense of assault with intent to commit murder, and having been once punished in the robbery case, as a material part thereof, it cannot be again punished as it would be if the judgment below were allowed to stand.’ ”

And more recently in Duckett v. State, 454 S.W.2d 755 (Tex.Cr.App.1970), it was held that where the defendant was convicted of robbery by assault with a firearm and was later convicted of assault with intent to murder arising out of the same transaction and based on the same evidence, the second conviction would be reversed in view of the double jeopardy provisions of the State and Federal Constitutions. United States Constitution, Fifth Amendment; Article I, Sec. 14, Texas Constitution; Article 1.10, Vernon’s Ann.C.C.P.

In Duckett it was noted that the same rule was applied in Doggett v. State, 130 Tex.Cr.R. 208, 93 S.W.2d 399 (1936), which involved, as does the instant case, convictions for murder and robbery with a firearm. In that case, under similar circumstances as in the case at bar, the victim was shot when he failed to comply with the order to put his hands up and the money was then taken. See also Taylor v. State, 41 Tex.Cr.R. 564, 55 S.W. 961 (1900).

We conclude that the petitioner’s second conviction for robbery by assault with a firearm was obtained in violation of the double jeopardy provisions of the State and Federal Constitutions and must be set aside.

It is true that petitioner did not object at his robbery trial to a violation of the carving doctrine or the double jeopardy doctrine. It is noted, however, that the failure to object under such circumstances does not constitute a waiver of the right to raise the matter in a post-conviction collateral habeas corpus attack. Ex parte Evans, 530 S.W.2d 589 (Tex.Cr.App.1975), and cases there cited.

It is also true that the petitioner did not file a special plea of former jeopardy in accordance with Articles 27.05(2) and 27.06, Vernon’s Ann.C.C.P., at the time of his second trial, but it has been held that where a trial is had on an indictment charging the same transaction no plea of former jeopardy or former conviction is necessary where it is in the same court and before the same judge as in the instant case. See Ex parte Seelies, 511 S.W.2d 300, 301 (Tex.Cr.App.1974), and cases there cited.

Further, the fact that petitioner pled guilty to the robbery indictment would not preclude him from now raising the double jeopardy contention. Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973); Ex parte Seelies, supra; Duckett v. State, supra. Cf. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974).

The relief sought is granted. The conviction for robbery by assault with a firearm is set aside.


text:
    Alex R. MENDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 51756.
    Court of Criminal Appeals of Texas.
    April 14, 1976.

      Joe Daniel Stokes, III, Austin, Court appointed, for appellant.
    Robert 0. Smith, Dist. Atty., Stephen H. Capelle, Asst. Dist. Atty., Austin, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for possession of heroin; the court assessed punishment at imprisonment for 25 years.

There is a jurisdictional problem which requires that this appeal be dismissed. The record reflects that appellant was indicted on December 11,1973, for possessing heroin on April 26,1973, with two prior convictions alleged for enhancement of punishment. On January 28, 1974, appellant entered a plea of guilty to the primary charge; the State thereafter waived the enhancement allegations in the indictment. The appellant waived his right to elect to be sentenced under the Texas Controlled Substances Act by failing to so elect by written motion filed with the trial court. See Controlled Substances Act, Sec. 6.01(c); cf. Stephenson v. State, 517 S.W.2d 277 (Tex.Cr. App.1975). The trial court, after admonishing the appellant of the range of punishment for this offense under the former Penal Code, accepted appellant’s plea and the appellant made a judicial confession. Assessment of punishment was postponed in order to allow the probation department to conduct a presentence investigation.

On February 14, 1974, the trial reconvened, and without hearing further evidence, the trial court assessed appellant’s punishment at imprisonment for 25 years, and immediately thereafter formally sentenced him.

The record before us does not reflect that the appellant voluntarily and knowingly waived his right to file a motion for new trial within the ten days after the assessment of punishment. See Article 42.03, V.A.C.C.P.; Faurie v. State, 528 S.W.2d 263 (Tex.Cr.App.1975). As in Faurie v. State, supra, the form sentence of the court indicating that the appellant “waived time” is insufficient to show a waiver of this right in the record on appeal. See Article 1.14, V.A.C.C.P. Absent a showing that appellant affirmatively waived the ten days for filing motion for new trial, the imposition of sentence on February 14, 1974, was premature, and we are therefore without jurisdiction to entertain this appeal. See Woods et al. v. State, 532 S.W.2d 608 (Tex.Cr.App.1976); Faurie v. State, supra, and cases cited therein.

The appellant did file a motion for new trial on February 21, 1974, which would have been timely filed had appellant not been formally sentenced on February 14, 1974. Therefore, we conclude that upon the issuance of this Court’s mandate of dismissal the trial court should proceed to consider appellant’s motion for new trial which was previously filed. Thereafter, any such amended motion permitted under the provisions of Article 40.05, V.A.C.C.P., may also be filed with the time for filing any such amended motion to commence with the receipt of the mandate by the clerk of the trial court. Then, if the motion for new trial or any amended motion for new trial is overruled, sentence may be properly pronounced and entered, and the appellant may give notice of appeal, if he so desires. Should notice of appeal be given, proceedings may be had in the trial court pursuant to Article 40.09, V.A.C.C.P.

We observe that the instrument denominated “Judgment of Guilt on Plea of Guilty” does not comply with the requirements for a judgment because it does not assess punishment. See Article 42.01, V.A. C.C.P. A separate instrument is used to assess punishment, and it is not in itself sufficient to meet the requirements of a judgment under the provisions of Article 42.01, V.A.C.C.P. Although it might be argued that both instruments, which were filed on separate days, might be construed together, we do not need to decide this question. We recommend that all of the requirements for a judgment as designated in Article 42.01, V.A.C.C.P., be incorporated in one instrument.

The appeal is dismissed.

Opinion approved by the Court.


author: WARD, Justice.

text:
    R. E. KNAPP et al., Appellants, v. Roy L. WILSON, Appellee.
    No. 6490.
    Court of Civil Appeals of Texas, El Paso.
    March 10, 1976.
    Rehearing Denied March 31, 1976.
    Edwards, Belk, Hunter & Kerr, John W. Welsh, Jr., El Paso, for appellants.
    Peticolas, Luscombe, Stephens & Windle, Wayne E. Windle, Jr., Colbert N. Coldwell, El Paso, for appellee.
   OPINION

WARD, Justice.

This negligence action was brought by a tenant against his landlords for the loss of personal property caused when an unknown third party burglarized the tenant’s apartment. The trial Court, sitting without a jury, awarded the tenant judgment for his damages in the amount of $3,100.00. Upon the request of the landlords, findings of fact and conclusions of law were filed. We reverse and here render the judgment which the trial Court should have rendered.

The plaintiff, Roy Wilson, became a tenant on May 25, 1972, under an oral lease at the Villa Sierra Apartments in El Paso, Texas. The apartments consisted of 250 rental units and the Plaintiff’s Unit # 13 was on the ground floor. On June 2, he left town for two weeks to get married. He locked all three of his doors and the window and notified the management and asked that they take care of his mail and watch his apartment. During his trip, the manager placed the mail in the tenant’s apartment after unlocking one of the doors. When the Plaintiff returned, he unlocked his front door and found certain of his personal items missing. The window in the apartment was open with the screen in place and no evidence of any forcible entry was found.

The findings of fact are not questioned on this appeal and certain of the material ones are quoted in part:

“One of the keys to Plaintiff’s apartment was lost by a former tenant to the premises and this fact was known to Defendants * * * . Keys to the various apartments in the complex were kept on a board when returned to the office of the complex. The keys were not numbered or tagged and could not be identified with a particular apartment when removed from the board. Keys which lost their identity were thrown into a bag in the management office as useless.

“Maid service was provided by Defendants, but at a fee to tenants. Maintenance men employed by Defendants had access to the apartments. Defendants provided regular pest control service.

“Prior to the incident in question, there had been six or seven burglaries without forcible entry during the Spring of 1972, involving first-floor apartments which were screened from view and largely occupied by bachelors in the Villa Sierra Apartments. The area around the apartments for about a five-mile radius had experienced an above-average crime rate. The El Paso City Police patrolled around the apartments, but there were no private security patrols or watchmen employed by the Defendants.

“It was uncontroverted that Plaintiff locked the three doors and one window of his apartment before taking his departure, and there was no evidence of a forcible entry into his apartment. To assume that a professional picked the lock and gained entry without a key would be merely speculation without a scintilla of evidence to support it, and the Court specifically declines to make such a Finding of Fact in this case.”

The trial Court concluded that “the Defendants had a duty to maintain proper control of the apartment keys and master keys in the apartment complex to protect against unauthorized access to its tenant’s premises. The Defendants had a duty to change the locks to Plaintiff’s apartment when it was indicated by the circumstances that a key to the apartment had been missing or lost, and they had a duty to warn the tenant of the high crime rate occurring within the vicinity of this apartment complex so that the tenant might have taken his own protective measures.” The Court found a breach of each of the duties by the Defendants and found each to be separately and in combination with one another a proximate cause of the burglary loss.

The Appellant’s first point advances the general proposition that a landlord is never under a duty to protect a tenant from loss due to theft by third parties and, because of its general nature, the point is overruled. The view adopted by the Restatement (Second) of Torts, while it might abandon traditional concepts surrounding the landlord-tenant relationship, and the defense as to the intervening criminal act of the third party, should apply to this negligence action. In its treatment of both negligence and proximate cause, while it provides for liability, it is limited to consequences which are reasonably foreseeable. Section 302 B provides that “an act or omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of * * * a third person which is intended to cause harm, even though such conduct is criminal.” Though the landlord has let the premises where the harm takes place, he has retained a duplicate key or a master key to the premises and in this area an unreasonable risk of harm to the tenant could arise. See the Annotation, “Landlord’s Duty to Protect Against Crime”, 43 A.L.R.3d 331, and Note, 49 Texas L.Rev. 586. Cases which have recognized potential liability because of a burglary in a negligence action against the landlord are Braitman v. Overlook Terrace Corp., 132 N.J.Super. 51, 332 A.2d 212 (1974), and Warner v. Arnold, 133 Ga.App. 174, 210 S.E.2d 350 (1974).

The point as made by the Appellants does not question the evidence presented in this case as being negligence and this opinion is not to be taken as any approval of that finding. The first point as made is overruled.

The next point is that there is no evidence of causal connection between the negligence of the Appellants and the loss suffered by the Appellee. Considering only the evidence and the inferences tending to support the findings and disregarding that to the contrary, the record supports the Court’s finding that one key to the premises was lost by a former tenant at an unknown time and place. The evidence is that this key had to be lost prior to February 1972, that none of the keys were ever numbered and that the manager kept the master key which she permitted the tenants to use when they were locked out. In the area of foreseeability as it applies to proximate cause, the burglary, because of the lost key, was a mere possibility and not one which was reasonably foreseeable; the chance finding somewhere of an unmarked key that happened to fit one apartment out of 250 at the Villa Sierra Apartments leaves the odds on reasonableness prohibitively low. Restatement (Second) of Torts, § 448 (1965). Again, a serious defect is present regarding causation in fact. The trial Court found that it was mere speculation to assume that a professional picked the lock and gained entry, but under the evidence presented it was mere speculation to assume that a thief had the lost key or the master key and thereby gained possession. It was mere speculation to assume that the Plaintiff would have changed his own lock or moved out of the apartment if he had been told there had been six or seven burglaries. There is no testimony as to what he would have done and the probability is equal to that which was done by the Plaintiff. He asked the manager to look after his apartment and his mail after he securely locked and left the premises. McCappin v. Park Capitol Corporation, 42 N.J.Super. 169, 126 A.2d 51 (1956). The no evidence point is sustained.

The judgment of the trial Court is reversed and judgment is here rendered that the Plaintiff take nothing.


author: WALTER, Justice.

text:
    Robert MALLORY et al., Appellants, v. DOROTHY PRINZHORN REAL ESTATE, INC., Appellee.
    No. 4874.
    Court of Civil Appeals of Texas, Eastland.
    March 11, 1976.

      Larry S. Parnass, Irving, for appellants. William M. Jones, Dallas, for appellee.
   WALTER, Justice.

Dorothy Prinzhorn Real Estate, Inc. recovered a summary judgment against Robert Mallory, individually, and Robert Mallory & Associates, Inc. plus attorney’s fees. The defendants have appealed.

Plaintiff negotiated a contract for the sale of real estate from William M. Jones to Libra Properties, Inc. In support of its motion for summary judgment, the plaintiff filed the affidavit of its President, Richard L. Clements.

In its motion for summary judgment, the plaintiff says:

“Defendant’s original answer is insufficient to raise a controverted fact issue.”

The amendment to Rule 166-A, effective January 1, 1971, provides:

“(c) Motion and Proceedings Thereon. The motion for summary judgment shall state the specific grounds therefor.”

Plaintiff’s motion for summary judgment does not comply with this amendment.

In Mr. Clements’ affidavit, he says, “ . . .a copy of said contract having been heretofore filed in the above cause, and incorporated herein by reference.” Attached to plaintiff’s original petition we find a copy of the contract. Rule 166-A, T.R.C.P. provides:

“Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”

No sworn or certified copy of the contract was attached to Mr. Clements’ affidavit.

In Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961), the court said:

“We hold, however, that a compliance with Rule 166-A(e) required that the certified copies of the documents referred to should be attached to the motion. There were no papers, records, or other documents from said Cause No. 58-68 attached to the motion by either sworn or certified copies. Since the matters referred to were court records, certified copies should have been attached to the motion; therefore, defendants had not complied with the provisions of Rule 166-A and were not entitled to a summary judgment.”

Mr. Clements’ affidavit constitutes the only summary judgment proof offered in support of plaintiff’s motion for summary judgment. He is president of the plaintiff corporation and is an interested witness. The general rule is that the testimony of an interested witness does no more than raise an issue of fact. There are exceptions to this rule which are not applicable. In Re, James T. Taylor and Son, Inc. v. Arlington Independent School District, 160 Tex. 617, 335 S.W.2d 371 (1960).

The judgment recites, “The court having also considered the evidence concerning attorney’s fees, . . . ” The only summary judgment evidence contained in the record is Mr. Clements’ affidavit and there is no mention of attorney’s fees. There is no indication in the record how this evidence on attorney’s fees was presented. Oral testimony is prohibited by the summary judgment rule and the State Bar Minimum Fee Schedule is not conclusive. In Coward v. Gateway National Bank of Beaumont, 525 S.W.2d 857 (Tex.1975), the court said:

“Article 2226, Vernon’s Ann.Tex.Civ.St., authorizes the recovery of a reasonable amount as attorney’s fees where certain types of claims are not paid or satisfied thirty days after presentment and judgment is finally obtained thereon. The statute was amended in 1971 to add the following provisions:
The amount prescribed in the current State Bar Minimum Fee Schedule shall be prima facie evidence of reasonable attorney’s fees. The court, in non-jury cases, may take judicial knowledge of such schedule and of the contents of the case file in determining the amount of attorney’s fees without the necessity of hearing further evidence.
In our opinion the quoted provisions apply only in suits to establish one or more of the claims covered by the statute, and the fee suggested in the State Bar Minimum Fee Schedule is not conclusive even when there is no evidence to the contrary.”

The judgment is reversed and the cause remanded.


author: DUNAGAN, Chief Justice.

text:
    A. L. (Sonny) ROBERTS, Appellant, v. Edna ROBERTS, Appellee.
    No. 826.
    Court of Civil Appeals of Texas, Tyler.
    March 11, 1976.
    Charles R. Holcomb, Rusk, for appellant.
    William M. Holland, Norman, Hassell, Spiers, Holland & Thrall, Rusk, for appellee.
   DUNAGAN, Chief Justice.

This suit involves the division of property upon a divorce. Appellant, A. L. Roberts, instituted this suit against appellee, Edna Roberts, who brought a cross-action for divorce, restoration of her former name and division of the property. The trial court, without a jury, granted the divorce and divided the property.

A. L. and Edna were married in 1961 when they were 26 and 48 years of age, respectively. They lived on a 400-acre tract which belonged to Edna’s separate estate. They conducted ranching operations upon this property until it was sold in 1966 for approximately $80,000. These funds were used to satisfy the indebtedness against the 400-acre tract and to purchase a 149.78-acre tract. A. L., a carpenter by trade, made improvements of a disputed value upon this property which had an undisputed value of $80,000 when the parties separated in 1973.

The trial court awarded the 149.78-acre tract “and all community interest in the improvements on such land” to Edna. A. L. contends that the trial court abused its discretion in awarding this tract to Edna although he does not otherwise attack the property division. He argues under various theories that the community owned an interest in this tract and concludes that the award thereof to Edna was unfair. We do not discuss the theories under which a community interest might have existed because, assuming the existence of that interest, we uphold the property division.

In a decree of divorce, the court shall order a division of the property in a manner that the court deems just and right, having due regard for the rights of each party. Tex.Family Code Ann. Section 3.63. This division need not be equal. Bell v. Bell, 513 S.W.2d 20, 22 (Tex.1974). The division should be corrected only when an abuse of discretion is shown. There is a presumption on appeal that the trial court correctly exercised its discretion. Law v. Law, 517 S.W.2d 379, 384 (Tex.Civ.App.—Austin 1974, writ dism’d); Roye v. Roye, 404 S.W.2d 92, 95 (Tex.Civ.App.—Tyler 1966, n. w. h.). Neither the husband nor the wife is entitled, as a matter of right, to their interest in the community estate. Roye v. Roye, 531 S.W.2d 242, 244 (Tex.Civ. App.—Tyler 1975, n. w. h.); Mahrer v. Mahrer, 510 S.W.2d 402, 404 (Tex.Civ.App.—Dallas 1974, n. w. h.). The trial court may consider the separate or community ownership of the property, but this is not the only factor determining the division. The court may also consider the size of the estates, the age and physical condition of the parties and their relative abilities and need for future support. Wilkerson v. Wilkerson, 515 S.W.2d 52, 55 (Tex.Civ.App.—Tyler 1974, n. w. h.); Roye v. Roye, 404 S.W.2d 92, 96 (Tex.Civ.App.—Tyler 1966, n. w. h.).

Edna, at age 63, is more than 20 years older than A. L. The trial court may well have considered this age discrepancy in awarding the 149.78-acre tract to Edna. The property division as a whole appears just and right. We hold that there was no abuse of discretion.

Accordingly, the judgment of the trial court is affirmed.


author: MOORE, Justice.

text:
    Louita D. WILSON, Guardian, Appellant-Appellee, v. The GROOS NATIONAL BANK OF SAN ANTONIO, Texas, Appellee-Appellant.
    No. 906.
    Court of Civil Appeals of Texas, Tyler.
    March 11, 1976.

      Joel H. Pullen, Tinsman & Houser, Inc., San Antonio, for appellant-appellee, Louita D. Wilson, guardian.
    William L. Morrow, Stiernberg, Skaggs & Koppel, Harlingen, Groce, Locke & Hebdon, San Antonio, for appellee-appellant, Groos Nat. Bank.
   MOORE, Justice.

This is an appeal from an order of the trial court overruling in part and sustaining in part defendant’s plea of privilege to be sued in Bexar County.

On January 29, 1974, plaintiff, Louita D. Wilson, as Guardian of the Estate of Brad-die G. Lowe, brought suit in the 63rd District Court, Val Verde County, Texas, against defendant, Groos National Bank, the former guardian of Braddie G. Lowe’s estate. On February 27, 1974, defendant mailed its plea of privilege to plaintiff by registered mail, return receipt requested. The plea was not filed with the District Clerk until the following day, February 28, 1974. The bank alleged that no exception to the exclusive venue statute existed and that it was entitled to be sued in Bexar County, the county of its residence. The attorney for plaintiff admits that he received a copy of defendant’s plea of privilege in the mail on February 28, 1974. Plaintiff’s controverting affidavit was not filed until March 13, 1974, some three days after the ten-day period allowed by Rule 86, Texas Rules of Civil Procedure. On May 15, 1975, the trial court, after a hearing before the court, without the aid of a jury, entered an order granting in part and overruling in part defendant’s plea of privilege. The court ordered a portion of the cause against the bank to be transferred to Bexar County, and after a severance of that portion, overruled the bank’s plea as to the remainder of plaintiff’s suit holding that venue over that portion of the case was properly laid in Val Verde County. Both plaintiff and defendant perfected appeals to this court.

Defendant, Groos National Bank, takes the position that it was entitled to have the entire cause transferred to Bexar County on the ground that plaintiff’s controverting affidavit was not timely filed in accordance with Rule 86, supra. We agree with defendant’s contention.

Rule 86, supra, provides that a party contesting a plea of privilege must file a controverting affidavit in response thereto “within ten days after he or his attorney of record received the copy of the plea of privilege.” The record shows without dispute that plaintiff’s attorney received the copy of defendant’s plea of privilege on February 28, 1974, and that the controverting affidavit was not filed until March 13, 1974. Thus, the controverting affidavit was filed 13 days after plaintiff received a copy of the plea of privilege rather than within the ten-day period provided by Rule 86.

Plaintiff seeks to sustain the judgment on the ground that she timely filed a sworn motion for extension of time in which to file her controverting affidavit. While plaintiff did file such a motion attempting to establish good cause for the late filing, the record is before us without a statement of facts or findings of fact and conclusions of law. In these circumstances we are not in a position to determine whether any proof of good cause was presented. The mere allegation in a verified motion alleging good cause for an extension of time to file the controverting affidavit is not sufficient; such facts must be established by extrinsic evidence. Poston Feed Mill Company v. Leyva, 438 S.W.2d 366, 369 (Tex.Civ.App.—Houston (14th Dist.) 1969, writ dism’d). Absent extrinsic proof of good cause excusing the late filing, the plea of privilege must be sustained and the entire cause transferred to Bexar County. LPG, Inc. v. Development Associates, Inc., 498 S.W.2d 736, 737 (Tex. Civ.App.—El Paso 1973, no writ); Bond v. Lewis, 496 S.W.2d 181, 184 (Tex.Civ.App—Waco 1973, no writ); Poston Feed Mill Company v. Leyva, supra.

Plaintiff further seeks to sustain the judgment on the ground that her attorney received the copy of the plea of privilege by mail rather than by actual delivery in person and therefore she is entitled to an additional three days, pursuant to Rule 21a, Texas Rules of Civil Procedure. Rule 21a provides, in part that “Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period.” In view of the specific mandate of Rule 86 requiring the controverting plea to be filed within ten days after it has been “received,” we do not believe Rule 21a applies. Rule 86 does not require a party desiring to contest a plea of privilege to take action within ten days of service of the plea of privilege. The rule requires no action at all until the plea of privilege is actually “received” by the adverse party. The rule clearly provides that the controverting plea must be filed within ten days after the plea of privilege is “received.”

Where the controverting plea is not timely filed, the trial judge has authority only to enter an order transferring the cause to the county of the residence of the defendant. Alley v. Ponca Wholesale Mercantile Co., 360 S.W.2d 870, 871 (Tex.Civ. App.—Amarillo 1962, no writ); Cowan v. State, 356 S.W.2d 170, 172 (Tex.Civ.App—Austin 1962, writ dism’d); Terrell v. Vandergriff, 351 S.W.2d 910, 911 (Tex.Civ.App.—Amarillo 1961, no writ). In order to ex tend the trial court’s jurisdiction beyond the ten-day period allowed by the rule, appellee had the burden of proving good cause existed. In the absence of a statement of facts the record fails to show good cause existed. Consequently, the trial court was without power to overrule the bank’s plea of privilege after the expiration of the ten-day period and as a result the bank was entitled to have the entire cause transferred to Be-xar County.

Accordingly, the judgment of the trial court is reversed and judgment is hereby rendered transferring the entire cause to the District Court of Bexar County, Texas.

      . Article 1995, Vernon’s Ann.Texas Statute.


author: KEITH, Justice. DIES, Chief Justice

text:
    Elizabeth E. REED, Appellant, v. The AETNA CASUALTY & SURETY COMPANY, Appellee.
    No. 7771.
    Court of Civil Appeals of Texas, Beaumont.
    March 11, 1976.
    Rehearing Denied April 1, 1976.
    James B. Davis, Houston, for appellant.
    Edward J. Hennessy, Houston, for appel-lee.
   KEITH, Justice.

In this workmen’s compensation case the plaintiff below appeals from an adverse judgment rendered after the jury had answered a “Van Zandt” type issue finding that she did not sustain an injury in the course of her employment at the time and place she alleged she was hurt.

The accident forming the basis of plaintiff’s claim was one which was not observed by anyone other than plaintiff. She testified that during a heavy rainstorm accompanied by strong wind, she was attempting to open the door to her place of business and to open her umbrella at the same time. She said that the door was pushed back by the wind, knocking her into the door jamb, whence she fell to the floor, thereby sustaining her injuries.

She did not report the accident until the next day and when she went to see a doctor some three weeks later, her account of the accident differed materially from her original report as well as the testimony given upon the trial. Still another slight variation of the happening was given to the physician selected by her counsel to testify upon the trial.

In the medical record introduced in evidence by the defendant, it was shown that Dr. Dube had been treating her for similar complaints to her back and neck for several years before the accident in question; but, when she gave a history to Dr. Jackson some three weeks after the accident, she neglected to advise that physician of her earlier problems shown by Dr. Dube’s records.

Upon cross-examination, it was developed from plaintiff that she had been to see Dr. Dube upon numerous occasions before the accident with complaints of neck and back pain. In one instance, at least, she had been hospitalized and placed in traction for treatment of the pain in her neck.

As claimant of workmen’s compensation benefits, plaintiff labored under the burden of proving that she was injured in the course and scope of her employment. This was raised by the defendant’s general denial under the rationale of Texas & Pacific Railway Company v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528, 530 (1958), and its progeny.

Plaintiff was, of course, an interested witness and the general rule is “that evidence given by an interested witness, even though uncontradicted, presents an issue to be determined by the trier of fact.” Gevinson v. Manhatten Construction Co. of Okl, 449 S.W.2d 458, 467 (Tex.Sup.1969). See also, Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904, 908 (1942); Bates v. Barclay, 484 S.W.2d 955, 959 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.).

Under the record which we review, we cannot find any exception to the general rule just stated. The jury was the sole judge of the credibility of the witnesses, including the plaintiff, and the weight to be given to her testimony. We will not, under this record, disturb the finding of the jury that the plaintiff failed to discharge the burden placed upon her to show that she received an injury in the course and scope of her employment. All of plaintiff’s points of error attacking the jury finding to Special Issue No. 1 are overruled.

Plaintiff contends that the court erred in admitting the medical records of Dr. C. O. Dube offered under the provisions of Art. 3737e, Tex.Rev.Civ.Stat.Ann. (Supp. 1975-1976). The authenticity of the records is not disputed; plaintiff’s objections were to several specific statements of Dr. Dube’s opinion reflected therein. The objection incorporated the statement that the notations constituted hearsay, were expressions of opinion, and denied plaintiff the opportunity of cross-examination.

The first item to which a specific objection was made was the entry of October 14, 1967, wherein the report stated: “ ‘Dismissed 10-25-67, cervical arthritis, myositis, cervical traction, valium’.”

We quote plaintiff’s objection to another series of entries:

“ ‘Mr. Davis: I want to point out to the Court that I object further to these entries and may I just state the entries as to the entry of 2-3-69 that portion showing the diagnosis to be, “Otitis media, cervical myositis”, the entry of 7-15-69, “pain in both hands”, and the entry made by the doctor at 11-24-69, “arthritis improved”, and then, 5-12-72, the diagnosis of, “right shoulder pain”, 6-9-72, the diagnosis of, “myositis”, for the following reasons [which are here set out].’ ”

It would unduly lengthen this opinion to summarize the evidence from the testifying physicians. Both were in accord and there was no substantial difference in their diagnosis. Each of the physicians testified that there was soft tissue complaints and numbness of the upper extremities. These are the conditions disclosed by Dr. Dube’s records to have been of long standing and antedating plaintiff’s alleged injuries by several years.

The terms used in Dr. Dube’s records did not rest on expert opinion, speculation or conjecture. Indeed, we find that “myosi-tis”, “radiculitis”, “deltoid” [but not subdel-toid], “cervical”, “arthritis”, and “bursitis” are all of such common usage that their definitions appear in the common dictionaries available to the general public. See, e. g., Webster’s Third New International Dictionary (G. & C. Merriam Co., 1967), where each of the quoted words is defined in simple language as describing a common ailment of the human flesh.

The medical records introduced in evidence contained Dr. Dube’s findings and were properly admissible because “the diagnosis records a condition resting in reasonable medical certainty.” Loper v. Andrews, 404 S.W.2d 300, 305 (Tex.Sup.1966), and quoted in Otis Elevator Company v. Wood, 436 S.W.2d 324, 330 (Tex.Sup.1968).

The right to cross-examine such expert witness, as said in Otis Elevator, supra:

“. . . stems from the need to cross-examine the doctor making the entry when his opinion is an ‘expert conjecture,’ one not resting on demonstrable medical facts and about which there could be genuine dispute among doctors.”

The several diagnoses of Dr. Dube were not “expert conjectures”; he simply recorded medical data about which there is no genuine dispute among doctors.

Diagnostic entries in hospital records may be considered as competent evidence of the condition they describe if they are not genuinely disputed and do not rest largely in expert opinion, speculation or conjecture. The Supreme Court decisions cited above are dispositive and adverse to the contentions now urged by the plaintiff.

Plaintiff’s remaining points, seeking a rendition of the judgment notwithstanding her failure to procure any jury findings warranting a judgment in her favor, are obviously without merit and are overruled.

The judgment of the trial court, being free of error, is AFFIRMED.

DIES, Chief Justice

(dissenting).

I respectfully dissent. I believe the holding of Loper v. Andrews, 404 S.W.2d 300 (Tex.Sup.1966) requires a new trial of this case. The records of Dr. C. 0. Dube, admitted under the provisions of Tex.Rev.Civ. Stat.Ann. art 3737e, contained the following medical diagnoses:

“Card No. 1 10-5-67
“Myositis
“Radiculitis
“Card No. 2 10-14-67
“Cervical Arthritis
“Myositis
2-3-69
“Myositis
“Card No. 3 11-24-69
“Subdeltoid Bursitis
“Card No. 5 6-19-72
“Myositis”

Dr. James R. Oates who testified for plaintiff concluded she had a stretch-type injury to her nerve. Dr. Ronald D. Jackson who testified for defendant essentially found no injury. In cross-examining Dr. Jackson, defendant’s counsel asked:

“Q. What is Myositis? [The diagnosis on Dr. Dube’s record]
“A. Just a term describing inflammation of a muscle.
‡ ⅝ ‡ ‡ ‡ ⅜
“Q. Can Myositis and Neuritis be caused by something other than trauma? “A. Yes.”

Dr. Jackson was also asked what Radiculitis means.

“A. It means irritation of a nerve at its origin.
“Q. Can this take place anywhere on the body?
“A. Anywhere on the spine.
“Q. O.K. And would that affect the extremities, the legs, the arms?
“A. Yes.”
In Loper, supra, the court said at 305: “In approving the Rodriguez [Travis Life Insurance Co. v. Rodriguez, 326 S.W.2d 256 (Tex.Civ.App. — Austin 1959), approved by the Supreme Court in 160 Tex. 182, 328 S.W.2d 434] construction of the statute [TEX.REV.CIV.STAT.ANN. art. 3737e] we do not hold that diagnostic entries in hospital records may be considered as competent evidence of the condition they describe where they are genuinely disputed and necessarily rest largely in expert opinion, speculation or conjecture.
“A witness is generally permitted to testify only to facts within his personal knowledge. He does not have to possess special qualifications to do so. He is not permitted to express an opinion since this invades the province of the trier of the facts. An exception to the personal knowledge prerequisite is represented by the testimony of a qualified expert in the expression of an opinion in the field of his qualifications. This is permitted because experts are considered to have a special knowledge not generally possessed by jurors and are better able to draw conclusions from the facts than the jurors. The diagnosis or medical opinion of a doctor is an example. Such testimony is in the nature of an expert opinion based on the application of the expertise of the doctor to the facts within his knowledge. The opportunity of cross-examination is unusually important to adversely affected parties. We do not read Article 3737e as purporting to render entries of such character admissible without exception; we construe the statute as doing so only in those instances where it can be said that the diagnosis records a condition resting in reasonable medical certainty.” (Emphasis supplied.)

Dr. Dube’s diagnosis of “Myositis” is not a condition “resting in reasonable medical certainty.”

Nor is Cervical Arthritis or Bursitis a reasonable medical certainty. The harm of the admission of this diagnosis to plaintiff’s case was compounded when defendant’s attorney proved by his doctor that Myositis could be caused by something other than trauma (and therefore non-compensable).

The right of cross-examination of witnesses is one of the most important cornerstones of our system. “Expert testimony” may often call for vigorous cross-examination as clearly as any other evidence. I believe the Loper, supra, holding is wise and practical, but I believe it should be strictly interpreted.

      . See Texas & Pacific Railway Company v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528, 530 (1958).
      The issue submitted in this case was: “Do you find from a preponderance of the evidence that ELIZABETH E. REED sustained accidental injuries on or about June 11, 1973, in the course and scope of her employment by Lynch Garage & Auto Parts?”
      To which the jury answered: “We do not.”
      All other issues were conditionally submitted upon an affirmative answer to Special Issue No. 1 quoted above, and none were answered.