text:
    C. E. COFFEE, Individually and as next friend of his wife Floy Coffee, and Floy Coffee, Individually, v. F. W. WOOLWORTH COMPANY and Woolco Department Store.
    No. 957.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1975.
    Rehearing Denied Sept. 18, 1975.
    Francis I. Gandy, Jr., Corpus Christi, for appellants.
    B. Mills Latham, Dyer, Bedford, Burnett, Wray & Woolsey, Corpus Christi, for appel-lees.
   OPINION

YOUNG, Justice.

This is a negligence case against a storekeeper. Mr. and Mrs. C. E. Coffee sued F. W. Woolworth Company and Woolco Department Store to recover damages for Mrs. Coffee’s injuries she sustained while shopping in defendants’ store in Corpus Christi, Texas, on December 15, 1970. In a trial to a jury the plaintiffs received favorable liability and damage findings. The trial court, however, rendered a take nothing judgment, non obstante veredicto, against the plaintiffs. The plaintiffs appeal.

While shopping in appellees’ retail store, Mrs. Coffee tripped and fell over an empty “gondola” which was situated at the end of a merchandise display aisle. The “gondola”, with a leg at each corner, was five feet square and approximately six inches high. In other words, it was a low table. As a result of her fall, Mrs. Coffee suffered the injuries for which she and her husband request damages.

At the trial of this cause, appellants asserted that the “gondola” was not readily visible because it was not covered with merchandise, and therefore its color blended with that of the floor of the store. Because the “gondola” was adjacent to an aisle or walkway, appellants contend that an unreasonably dangerous condition was thereby created. Appellants seek recovery on the theory that appellees were responsible for creating this unreasonably dangerous condition and allowing it to continue to exist; that appellees’ conduct was negligent.

In response to special issues, the jury made liability findings that appellees created or maintained a dangerous condition by leaving the “gondola” in the condition and location where the accident occurred; that appellees knew or should have known of the dangerous condition; that the appellees were negligent in failing to warn Mrs. Coffee of the dangerous condition or to remove it; and that such failure was the proximate cause of the occurrence in question.

Appellant’s brief presents five points of error. All of these points are directed at the action of the trial court in granting appellees’ motion for judgment non obstan-te veredicto. We will consider all of these points together.

To sustain the action of the trial court in granting a motion for judgment non obstante veredicto, it must be determined that there is no evidence on which the jury could have made the findings relied upon. In our review, we must consider only the evidence favorable to the party against whom the motion was granted. Every reasonable intendment deducible from the evidence is to be indulged in such party’s favor. Gentry v. Southern Pacific Company, 457 S.W.2d 889 (Tex.Sup.1970); Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962).

In order for appellants to prevail, as pointed out in Medallion Stores, Inc. v. Eidt, 405 S.W.2d 417, 420 (Tex.Civ.App.—Texarkana 1966, writ ref’d n. r. e.), they must show that appellees:

1. Knew or by the exercise of reasonable care would have discovered the condition, and should have realized that it involved an unreasonable risk of harm to such invitees.
2. And should have expected that their invitees would not discover or realize the danger, or would fail to protect themselves against it.
3. And failed to exercise reasonable care to protect their invitees against the danger.

So it follows that appellants cannot prevail on this appeal unless there is some evidence that appellees placed the empty “gondola” upon the floor; or knew (or should have known) that the empty “gondola” was on the floor and wilfully or negligently failed to remedy this dangerous condition, by either removing the “gondola” or restocking it; or the empty “gondola” had been on the floor for such a period of time that it would have been discovered and removed by appellees had they exercised ordinary care. See H. E. Butt Grocery Company v. Tester, 498 S.W.2d 683 (Tex.Civ.App.—Corpus Christi 1973, no writ); H. E. B. Food Stores v. Slaughter, 484 S.W.2d 794 (Tex.Civ.App.—Corpus Christi 1972, writ dism’d); Soto v. Biel Grocery Company, Inc., 462 S.W.2d 89 (Tex.Civ.App.—Corpus Christi 1971, no writ).

There is no evidence that the “gondola” was empty when it was placed in the shopping area. It is the empty status of the “gondola” which created the dangerous condition, if any, on the shopping floor. It is not here contended that maintaining a stocked “gondola” upon the sales floor would furnish any basis for appellees’ liability.

The record is void of any evidence that appellees actually knew that the “gondola” was empty. There is also a total absence of evidence regarding the time when the “gondola” was emptied or how long it had been empty before Mrs. Coffee tripped over it. Mrs. Heaton, an employee of appellees, testified that if the department manager had properly done his job, the “gondola” would not have become empty due to the merchandise being sold out. This testimony, however, does not aid appellants’ cause. The central question is when did the “gondola” become empty. If the “gondola” was not empty for a sufficient length of time to allow discovery by reasonable inspection, appellees are not liable to appellants in any event.

The testimony favorable to appellants reveals that there were at least two stock girls for each department who would arrive at work at 8:30 a. m. The testimony further reveals that the accident occurred in the vicinity of cash register # 6, and that there were several workers in the area of the cash registers. This evidence would aid the trier of facts in determining whether the empty “gondola” should, in the exercise of reasonable care, have been discovered within a certain time period. But, there is no evidence which would aid the trier of facts in determining how long before the accident the “gondola” was empty. It is impossible to determine whether the workers in the vicinity of the accident should have discovered the empty “gondola” prior to the accident if there is no basis for determining when the “gondola” became empty.

In that there is no evidence upon this element of appellants’ cause of action, the trial court properly granted appellees’ motion for judgment non obstante veredicto.

Because the trial court’s action in rendering judgment non obstante veredicto was proper for the reasons we have previously discussed, we need not discuss the issue of whether the “gondola” presented an open and obvious hazard to Mrs. Coffee. All of appellants’ points of error are overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: ROBINSON, Justice.

license: Public Domain

text:
    CONLEE SEED COMPANY, Appellant, v. Ray BRANDVIK et al., Appellees.
    No. 8520.
    Court of Civil appeals of Texas, Amarillo.
    Aug. 18, 1975.
    Rehearing Denied Sept. 8, 1975.

      Beard & Kultgen, Thomas L. Cook, Waco, for appellant.
    Fike & Hunter, King Fike, Dalhart, for appellees.
   ROBINSON, Justice.

Plaintiffs, Ray Brandvik, Velma Wyatt and Marguerite Fike, brought suit in Sherman County, Texas, against defendant, Conlee Seed Company, a private corporation with its principal office in Waco, McLennan County, Texas, alleging a conversion of 52,071 pounds of maize. Conlee filed its plea of privilege. Plaintiffs filed a controverting plea alleging that the grain was converted in Sherman County and seeking to maintain venue under Exceptions 9 and 23 to Tex.Rev.Civ.Stat.Ann., art. 1995 (1955). The trial court overruled the plea of privilege. Defendant appeals contending that there is no evidence that a conversion occurred in Sherman County or that a cause of action or a part thereof arose in Sherman County. Reversed and rendered.

Brandvik was the only witness. The evidence shows that Brandvik, as “grower”, and Marguerite Fike and Velma Wyatt, as “Landowners”, entered into a contract with defendant Conlee as “Buyer” to grow seed maize for Conlee.

The contract provides that it shall be binding upon the parties to it when it is fully executed and delivered to Buyer at its office in Waco, McLennan County. Under its terms delivery of the harvested seed is to be made by Grower at the turnrow on the farm. The following sections deal with the purchase and payment for the seed by the buyer:

“2. (e) Buyer shall also purchase and pay for such seed grown hereunder and found acceptable by it at Waco, McLennan County, Texas, upon delivery by Grower as hereinafter set forth.
“7. (c) payment will be made on a clean seed basis only.
(d) Price Per Pound of Seed Row. Special Terms $5.00/cwt Glean Seed Basis. Lubbock Grain Exchange, Local market grain at harvest Balance March 15th, 1978.”

Provisions concerning acceptable and unacceptable seed are as follows:

“5. ACCEPTABLE SEED: Buyer in its sole discretion shall determine what seed is acceptable hereunder, which seed shall meet the following requirements:
(a) It shall be free from noxious weeds and objectionable plants; (b) it shall be good quality as shown by the growout tests; (c) it shall meet a germination test of 80% or better; (d) it shall have moisture content of less than 13% ”
“1Ó. UNACCEPTABLE SEED: All seed harvested from the pollinator rows on the above described land, together with any and all seed grown hereunder which shall be turned down by Buyer as unacceptable, shall be hauled by Grower to the elevator or used for feed and under no circumstances shall either the grain harvested from pollinator rows or such unaccepted grain be sold for seed.”

The harvested grain was delivered to Conlee on the highway at the land. At no time did Conlee say that the seed was unacceptable or that it was rejecting any part of it. With the permission of Brandvik it was taken out of Sherman County to Plainview, in Hale County. The advance payment of $7,933.26 representing the $2.85 cwt local grain market price at harvest, was paid by Conlee. After the grain was cleaned in Plainview a written accounting and checks for the balance shown to be due were sent to plaintiffs. Plaintiffs refused to accept the checks as final payment of the account. The balance due was computed as follows beginning with the 278,360 pounds delivered at the land.

278,360# Bulk
less 11,329# Moisture loss
267,031# Net Weight
less 52,071# Processing loss
214,960# Clean seed at 5.00 cwt = $10,748.00
Less advance payment 7,933.26
Total Due $ 2,814.74

According to Brandvik the 52,071 pounds processing loss or clean out consists of cracked seed and some trash. He called Plainview and asked that the dean out from his seed be separated off by itself so that he could look at it. He was told that this could not be done. When the dispute arose over the accounting he was told by Conlee that they had settled the account and that was all there was to it.

Plaintiffs contend that by virtue of these facts, Conlee converted 52,071 pounds of unacceptable maize, in Sherman County, Texas.

A conversion of personal property is a “trespass” within the meaning of Subdivision 9, Tex.Rev.Civ.Stat.Ann., art. 1995, which provides that a suit based upon a trespass may be brought in the county in which the trespass was committed by defendant. Jordan v. Broad, 170 S.W.2d 655 (Tex.Civ.App.—Amarillo 1943, no writ).

A conversion is the wrongful exercise of dominion and control over another’s property in denial of or inconsistent with his rights. Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 446 (Tex.1971). Thus, there can be no conversion by the taking of property where the owner has expressly or impliedly consented to the taking. Castro Cooperative Gin Company v. Harrison, 272 S.W.2d 538 (Tex.Civ.App.—Eastland 1954, no writ). But where a person has lawfully come into possession of chattels his subsequent assertion of right, inconsistent with the owner’s dominion, constitutes a conversion. Jordan v. Broad, supra.

The record contains no evidence of a conversion by Conlee in Sherman County. Conlee was rightfully in possession of the entire 278,360 pounds of bulk seed delivered to it and had permission of plaintiffs to take the entire 278,360 pounds of seed out of Sherman County. The conversion, if there was a conversion, occurred in Hale County. See Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347 (1933). Therefore, plaintiffs cannot -maintain venue in Sherman County under Exception 9 of the venue statute.

Plaintiffs also seek to maintain venue in Sherman County under Exception 23, Tex. Rev.Civ.Stat.Ann., art. 1995. Exception 23 provides that a suit against a private corporation may be brought in the county in which the cause of action or a part thereof arose. Plaintiffs contend that the contract between the parties was made in Sherman County and in part performable in Sherman County and that, therefore, the cause of action in part arose in Sherman County.

We find that plaintiffs do not allege a cause of action for breach of contract. They sue in tort for conversion. Plaintiffs may not rely on a cause of action which they have not alleged to maintain venue. The burden is on the plaintiffs to allege and prove the facts they rely upon to bring their case within an exception to the general venue rule. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69 (1945). In any event the contract by its own terms was made in McLennan County and there is no allegation of a breach of any obligation to be performed in Sherman County.

We conclude that there is no evidence of venue facts bringing the cause of action within Exception 9 or 23. We do not find that venue is maintainable in Sherman County under any other exception to the venue statute.

The judgment of the trial court is reversed and judgment is rendered transferring the cause to the District Court of McLennan County, Texas.


author: ONION, Presiding Judge. MORRISON, Judge DOUGLAS, Judge

text:
    Richard Aldon BURRELL, Appellant, v. The STATE of Texas, Appellee.
    No. 49128.
    Court of Criminal Appeals of Texas.
    June 11, 1975.
    Rehearing Denied Sept. 23, 1975.

      Charles W. Tessmer and Ronald L. Gor-anson, Dallas, on appeal only, for appellant.
    Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for assault with intent to murder a peace officer, wherein the punishment was assessed by the court at forty-five (45) years following a verdict of guilty.

The appellant Burrell and his co-defendant Chambless were both indicted for robbery by assault and assault to murder a peace officer. In a joint trial they were both convicted of robbery and the appellant was convicted of assault to murder a peace officer, but co-defendant Chambless was acquitted of this latter offense. The facts involving these offenses were set forth in the appeals from the robbery convictions. See Per Curiam opinion in Chambless and Burrell v. State 525 S.W.2d 193 (Tex.Cr.App.1975), wherein the convictions were affirmed.

Appellant Burrell complains, concerning his conviction for assault with intent to murder a peace officer, that the trial court erred in permitting the State to amend the indictment in the cause after the trial had commenced.

The record reflects that the trial of the four cases involved commenced on June 25, 1973. The jury was selected and empaneled, the indictments were read to the jury, pleas of not guilty were entered in each case, and the presentation of testimony began. The next day, June 26, the State’s motion to amend the indictment in appellant Burrell’s assault to murder case was granted by the court.

Prior to amendment, the indictment, omitting the formal parts, alleged that Bur-rell “. . . did unlawfully, voluntarily and with his malice aforethought, make an assault in and upon the person of J. P. Huckabay, hereinafter styled ‘Injured Party’, with the intent to kill said ‘Injured Party’ by shooting him with a gun, and said ‘Injured Party’, then and there being an officer, to-wit, a police officer of the City of Balch Springs, Texas, who was then and there engaging in the performance of his official duty and the said Defendant then and there knowing that the said ‘Injured Party’ was such police officer . . . .” (Emphasis Supplied)

The amendment of the indictment permitted by the court on the second day of trial struck or deleted from the indictment the words “and with his malice aforethought” and “by shooting him with a gun.” No objection was made to the amendment or the deleted words. No claim of variance between the proof and the deleted allegations is advanced. The court’s charge did not require that the jury find the assault was committed “with malice aforethought” or “by shooting him with a gun.”

Appellant relies upon Article 28.10, Vernon’s Ann.C.C.P., which provides:

“Any matter of form in an' indictment or information may be amended at any time before an announcement of ready for trial upon the merits by both parties, but not afterward. No matter of substance can be amended.” (Emphasis Supplied)

At the time of the indictment and the time of trial, Article 1160, Vernon’s Ann. P.C., provided:

“Section 1. If any person shall assault another with intent to murder, he shall be confined in the penitentiary for not less than two (2) nor more than twenty-five (25) years, provided that if the jury finds that the assault was committed without malice, the penalty assessed shall be not less than one nor more than three (3) years confinement in the penitentiary; and provided further that in cases where the jury finds such assault was committed without malice but was made with a Bowie knife or dagger as those terms are defined by law, or with any kind or type of a knife, or in disguise, or by laying in wait, or by shooting into a private residence, the penalty shall be doubled.
“Sec. 2. Upon the trial of any person for assault with intent to murder, the Court, in its charge to the jury, shall define malice aforethought and in a proper case murder without malice, and instruct the jury touching the application of the law to the facts.”

At the same time, Article 1160a, Vernon’s Ann.P.C., provided:

“Section 1. In this Act, ‘peace officer’ means any person defined as a peace officer by Article 2.12, Code of Criminal Procedure, 1965.
“Sec. 2. A person who assaults a peace officer with intent to murder while said officer is in performance of his official duty, knowing that the person assaulted is a peace officer, is guilty of a felony and upon conviction is punishable by imprisonment in the penitentiary for life or for any term of years not less than two.”

Appellant argues that the indictment returned by the grand jury in effect charged two offenses; that is, assault to murder with malice pursuant to Article 1160, supra, and assault to murder a peace officer pursuant to Article 1160a, supra. The punishment under each statute is different, the maximum under Article 1160, supra, being twenty-five (25) years if malice is alleged and proven, and the maximum under Article 1160a, supra, being any number of years. While malice is a necessary allegation under Article 1160, supra, if the punishment is in excess of three (3) years, Crowley v. State, 150 Tex.Cr.R. 114, 199 S.W.2d 526 (1947), malice need not be alleged in an indictment under Article 1160a, supra, as it is not an element of the offense of assault to murder a peace officer. Flores v. State, 487 S.W.2d 122 (Tex.Cr.App.1972). Further, while the means used to commit either offense need not be alleged, see Welcome v. State, 438 S.W.2d 99 (Tex.Cr.App.1969); Bustillos v. State, 464 S.W.2d 118 (Tex.Cr.App.1971); Johnson v. State, 384 S.W.2d 885 (Tex.Cr.App.1964), it is established that once alleged it has to be proven. Holloway v. State, 168 Tex.Cr.R. 264, 324 S.W.2d 886 (1959); Johnson v. State, supra; 1 Branch’s Ann.P.C., 2d ed., Sec. 518, p. 497 (1956).

It appears from reading the one count indictment as returned by the grand jury that it was in that form duplicitous. Although there was no objection on this basis at trial and he is precluded from raising it for the first time on appeal, appellant contends that since one cannot tell which offense the grand jury intended to charge, and which allegations were the unnecessary ones, the appellant was harmed by the amendment of substance of the indictment, decreasing the burden of proof upon the State and increasing the penalty by twenty (20) years in excess of that provided in Article 1160, supra. He observes that he received forty-five (45) years as punishment.

An amendment of an indictment may be made as to form if timely made before the announcement of ready by both parties, Article 28.10 supra; Roberts v. State, 489 S.W .2d 113 (Tex.Cr.App.1972). See also Craig v. State, 480 S.W.2d 680 (Tex.Cr.App.1972). After trial commences the indictment should not be amended as to form or substance. Jackson v. State, 419 S.W.2d 370 (Tex.Cr.App.1967). Appellant contends, however, that the amendment in the instant case involved a matter of substance.

We must first determine if appellant may now raise the question since he failed to object at the time the indictment was amended.

In the early case of Calvin v. Texas, 25 Tex. 789 (1860), where an allegation of ownership was stricken by agreement between the district attorney and defense counsel, the court noted the amendment involved substance and that neither counsel nor the district attorney and the prisoner, nor the trial court could materially alter the indictment in light of the statute (a forerunner of Article 28.10, Vernon’s Ann.C.C.P. containing the same wording). See also Schenk v. State, 76 Tex.Cr.R. 235, 174 S.W. 357 (1915).

Jeters v. State, 128 Tex.Cr.R. 379, 82 S.W.2d 150 (1935), also made clear that an amendment as to the substance of the indictment cannot be made even if the parties consent. Morman v. State, 127 Tex.Cr.R. 264, 75 S.W.2d 886 (1934), noted that an Indictment cannot be legally amended as to substance, and Rutherford v. State, 74 Tex. Cr.R. 617, 169 S.W. 1157 (1914), held that an indictment amended as to substance will not support a conviction. See Calvin v. Texas, supra; Edwards v. State, 10 Tex.App. 25 (1881). Hamilton v. State, 65 Tex.Cr.R. 508, 145 S.W. 348 (1912), observed that an exception to an amendment of an indictment as to substance could be made at any time. See also Jackson v. State, 419 S.W.2d 370 (Tex.Cr.App.1967); Clopton v. State, 408 S.W.2d 112 (Tex.Cr.App.1966).

Thus, it appears that appellant is not foreclosed from his failure to object at trial if the amendment does indeed involve a matter of substance. This is the next question to be determined.

It is well settled that “[allegations not essential to constitute the offense, and which might be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment are treated as mere surplusage, and may be entirely disregarded.” 1 Branch’s Ann.P.C., 2d ed., Sec. 517, p. 497 (1956). Stated another way, it may be said that if not descriptive of that which is legally essential to the validity of the indictment, information or complaint, unnecessary words or allegations may be rejected as surplusage.

In Collins v. State, 500 S.W.2d 168 (Tex.Cr.App.1973), this court said:

“When not descriptive of that which is legally essential to the validity of an indictment or information, unnecessary words may be rejected as surplusage.” See also Cohen v. State, 479 S.W.2d 950 (Tex.Cr.App.1972); Malazzo v. State, 165 Tex.Cr.R. 441, 308 S.W.2d 29 (1957).

There is, however, a well recognized exception to the general rule discussed above, and that is where the unnecessary matter is descriptive of that which is legally essential to charge a crime it must be proven as alleged, even though needlessly stated. See 13 Texas Law Review 489 (note); 1 Branch’s Ann.P.C., 2d ed., See. 518, pp. 491-498, and cases there cited.

It is well established that where a person, place or thing necessary to be mentioned in the indictment is described with unnecessary particularity, all circumstances of description must be proven, Smith v. State, 107 Tex.Cr.R. 511, 298 S.W. 286 (1927), and cannot be rejected as surplus-age, for they are thus made essential to the identity. Maples v. State, 124 Tex.Cr.R. 478, 63 S.W.2d 855 (1933). Thus, if the pleader makes unnecessary allegations descriptive of the identity of the offense charged, it is incumbent upon the State to establish such allegations by evidence. McClure v. State, 163 Tex.Cr.R. 650, 296 S.W.2d 263 (1956).

A review of the cases decided over the years reflects that the word “descriptive” has not always been limited to situations where the matter modifies a noun adjec-tively but suggests that the word has been synonymous with “explanatory.” 13 Texas Law Review 489, 497 (note).

Taking then the law governing the exception that any matter descriptive or explanatory of that which is legally essential to constitute the offense cannot be treated as surplusage, we turn to some of the cases.

In Wade v. State, 52 Tex.Cr.R. 619, 108 S.W. 677 (1908), the indictment was amended by deleting the certain dates upon which a court order was published which created the local option law, which appellant allegedly violated. In reversing, the court stated:

“. . . the state having specified this particular election and the publication in the newspaper under it, the state would be confined to said election; and, having alleged it in the indictment, it became a matter of substance, descriptive in its nature, and could not be altered or changed by the court. Otherwise we would have what purports to be an indictment different entirely from that actually preferred by the grand jury, and which would constitute it no indictment at all.

In McDonald v. State, 138 Tex.Cr.R. 610, 137 S.W.2d 1046 (1940), a conviction was reversed because the State was allowed to amend the information in an aggravated assault with a motor vehicle case by striking the word “gross” before the word “negligence” in the indictment, thus decreasing the State’s burden of proof from gross negligence to ordinary negligence. On State’s motion for rehearing, which was denied, the court wrote:

“It may be true that the word ‘gross’ stricken out by the state was merely sur-plusage; yet it was an alteration of the affidavit and information in substance and this the law will not tolerate. . . ”

As to what generally constitutes a matter of form or matter of substance, see 30 Tex.Jur.2d, Indictment and Information, Sec. 56, p. 635.

In Cowan v. State, 41 Tex.Cr.R. 617, 56 S.W. 751 (1900), it was held that where an indictment particularly describes the means used, such descriptive averments are part of the indictment and not surplus-age. See also Robinson v. State, 60 Tex. Cr.R. 592, 132 S.W. 944 (1910). And an allegation of the means by which an assault was committed, though unnecessary, must be proven substantially as alleged. Arbetter v. State, 79 Tex.Cr.R. 487, 186 S.W. 769 (1916). See also McGee v. State, 5 Tex.App. 492 (1879); Maxwell v. State, 66 Tex.Cr.R. 258, 145 S.W. 1190 (1912).

In Johnson v. State, 384 S.W.2d 885 (Tex.Cr.App.1964), it was held that an indictment for assault with intent to murder need not allege means used or manner of use, but where the words “shoot at” were used in the indictment, such use did not vitiate the indictment, but the State had the burden of proving that allegation. See and compare Hardrick v. State, 142 Tex. Cr.R. 520, 155 S.W.2d 367 (1941); Holloway v. State, 168 Tex.Cr.R. 264, 324 S.W.2d 886 (1959).

In the instant case it was legally essential to charge the offense of assault to murder a peace officer to allege that an assault occurred and it was with intent to murder. In doing so, the grand jury alleged that the assault with intent to murder a peace officer was committed “with Ms malice aforethought” and “by shooting him with a gun.” These were not in and of themselves essential allegations, but as alleged were descriptive and explanatory of the assault and the intent.

We therefore conclude that the allegations of “by shooting him with a gun” and “and with his malice aforethought,” although unnecessary allegations under Article 1160a, supra, were descriptive of the offense, and their deletion from the indictment was an amendment of substance, for which reason the conviction for assault to murder a peace officer must be reversed.

To the extent of any conflict, we overrule Ellard v. State, 507 S.W.2d 198 (Tex.Cr.App.1374), and Renn v. State, 495 S.W.2d 922 (Tex.Cr.App.1973).

The State does argue that in a robbery by assault with a firearm case the prosecution may abandon during trial the portion of the indictment alleging the use or exhibition of a firearm. See, e. g., Johnson v. State, 436 S.W.2d 906 (Tex.Cr.App.1968); Yeagin v. State, 400 S.W.2d 914 (Tex.Cr.App.1966); 5 Branch’s Ann.P.C., 2d ed., Sec. 2570, p. 16. Arguing by analogy, the State contends this rule should control the instant case. The analogy is inapposite, however, for the allegation of the use of a firearm is not a separate offense, but authorizes the infliction of a more severe penalty than when ordinary robbery is alleged. Green v. State, 66 Tex.Cr.R. 446, 147 S.W. 593 (1912); Keppler v. State, 133 Tex.Cr.R. 623, 113 S.W.2d 900 (1938). The deletion of the firearm allegation in a robbery case is similar to deleting the enhancement paragraphs in a prosecution under former Articles 62 and 63, Vernon’s Ann.P.C., 1925, since only the punishment is changed.

In Rodriguez v. State, 449 S.W.2d 469 (Tex.Cr.App.1970), it was held that the dismissal of the enhancement portion of an indictment is not an amendment or alteration of the indictment as to a matter of substance.

And in Leonard v. State, 481 S.W.2d 117 (Tex.Cr.App.1972), this court expressly held that the granting of the State’s motion to dismiss the firearm portion of a robbery by assault indictment was not the amendment of the substance of the indictment.

For the reasons stated, the judgment is reversed and remanded.

MORRISON, Judge

(concurring).

I agree only with that portion of my Brother Onion’s opinion in which he holds that the deletion of the phrase “by shooting him with a gun” constituted an authorized amendment to the indictment in violation of Article 28.10, Y.A.C.C.P. Of. Johnson v. State, Tex.Cr.App., 384 S.W.2d 885.

I concur in the reversal of this conviction.

DOUGLAS, Judge

(dissenting).

One of the reasons given by the majority to reverse this conviction is that the court allowed the deletion from the indictment the words “and with his malice aforethought” and apparently holds that these words are descriptive of the offense because they are explanatory. In doing so, the majority holds contrary to Ellard v. State, 507 S.W.2d 198 (Tex.Cr.App.1974). Ellard was convicted for an assault with intent to murder a peace officer. The indictment charged that the assault was made “with malice aforethought”. Although charged in the indictment, malice aforethought was not submitted to the jury in the court’s charge. The Court wrote:

. . That the assault was committed with malice aforethought is not an element of the offense. Flores v. State, Tex.Cr.App., 487 S.W.2d 122. Neither does the presence of malice affect the punishment which may be assessed for the offense. Therefore, the words ‘with malice aforethought’ in the indictment are not descriptive of the offense and may be regarded as surplusage. Flores v. State, supra. That being true, it was not necessary that the court charge upon, or the jury find, malice.”

That was a good rule a year ago by a unanimous Court, but it is not a good rule today.

It has always been the understanding of the writer that when something is descriptive of the offense it must be proved as alleged. Otherwise, the evidence is insufficient to support the conviction under the indictment.

The distinction of Ellard by the majority in Footnote 5 is a distinction without a difference because in that case the court did not charge that the jury must believe the offense was committed “with malice aforethought” surplusage. If it were a descriptive averment it had to be proved as alleged. Johnson v. State, 384 S.W.2d 885 (Tex.Cr.App.1964), cited by the majority, held that “shoot at” in the indictment did not vitiate the indictment but the State had the burden of proving that allegation.

The majority apparently holds that malice aforethought is a means of committing the offense. It is not explained how this is a means of committing the offense. It appears that malice aforethought is a state of mind and if proof shows a less culpable state of mind, a trial court submits a lesser included offense charge to the jury. Bee Thompson v. State, 521 S.W.2d 621 (Tex.Cr.App.1974). The majority cites no case where “malice aforethought” has been held to be a descriptive averment.

' In Johnson v. State, 169 Tex.Cr.R. 612, 336 S.W.2d 175 (1960), the defendant was charged with killing the deceased by (1) strangling him with his hands, (2) and by suffocating him by squeezing his chest with his arms and hands, (3) and by suffocating him by placing Mm inside a refrigerator and closing the door, sealing him inside of said refrigerator, and (4) and by some means or manner of instruments and weapons to the grand jury unknown through mistake or accident while intending to commit the offense of sodomy, (5) and while in the act of preparing for or executing the offense of sodomy. Of the five means of committing the offense alleged in the indictment, three and a part of a fourth were submitted to the jury. The jury found Johnson guilty without specifying upon which ground he was found guilty. All of these were means of committing the offense. The court permitted the jury to find him guilty if he killed by either means. They evidently were not descriptive aver-ments.

If an indictment alleges receiving and concealing stolen property, one may be deleted by amendment or the matter may be submitted to the jury to convict if the accused received or concealed stolen property. Either may be proved. It is not necessary to prove both.

Does the majority opinion now mean that if malice aforethought has been alleged there cannot be a conviction for murder without malice or a conviction for aggravated assault under an indictment? Cf. Thompson v. State, supra.

If malice aforethought is alleged in an indictment alleging a crime prior to the adoption of the new Penal Code, does it have to be proved before punishment can be assessed under the new Code?

The majority opinion states that the prosecution may dismiss a portion of the indictment in a robbery case which states that the robbery was committed with firearms because the firearm allegation only goes to penalty. It has been held in many cases that there is only one offense of murder and the question of malice relates only to the penalty and not a part of the offense. Lopez v. State, 162 Tex.Cr.R. 454, 286 S.W.2d 424 (1956). See also Brazile v. State, 497 S.W.2d 302 (Tex.Cr.App.1973).

In Bradley v. State, 456 S.W.2d 923 (Tex.Cr.App.1970), the indictment alleged robbery by assault with a firearm, a capital felony, and in the second and third paragraphs of the indictment two prior non-capital felony convictions were alleged for enhancement. The capital felony alleged could not be used for enhancement with non-capital felony convictions. The State was permitted to waive the capital feature of the first portion of the indictment alleging the use of a firearm. When this was done the State was permitted to use the non-capital feature of robbery by assault with the two prior convictions for non-capital cases for enhancement under Article 63, V.A.P.C. Life would not have been the only punishment under the indictment had not the indictment been amended. The Court held that reversible error was not reflected even though the procedure utilized was not commended.

In view of this Court’s holding in Ellard v. State, supra, that “with malice aforethought” is surplusage, I would follow that holding.

The majority opinion holds that the allegation “by shooting him with a gun” was a descriptive averment but notes that there is no question about the proof. The evidence shows that appellant shot the injured party with a gun. Assuming it was error to permit the deletion of that part of the indictment and that such was a descriptive averment, the allegation was proved.

If the judge had left the indictment as originally presented, he could have submitted the charge to the jury omitting the allegations in question and no harm would be shown. See Johnson v. State, 169 Tex.Cr.R. 612, 336 S.W.2d 175 (1960).

No complaint was made to deletions in the indictment. No contention is made that all of the allegations in the indictment as originally presented were not proved. See Blaylock v. State, 161 Tex.Cr.R. 346, 276 S.W.2d 835 (1955).

The judgment should be affirmed.

      . “Duplicity is the joinder of two or more distinct offenses in the same count, or the joinder in the same count of two or more phases of the same offense where the punishment is different.” 30 Tex.Jur.2d, Indictment and Information, Sec. 40, p. 605.

      . 5 Tex.Jur.2d, Appeal and Error — Criminal Cases, Sec. 30, p. 52; 30 Tex.J«r.2d, Indictment and Information, Sec. 40, p. 606.

      .If the allegations as to the injured party being a peace officer in the performance of his official duty and that the accused knew he was a peace officer had been stricken, the indictment would have clearly charged assault with intent to murder with malice aforethought.

      . “ ‘Malice aforethought’ is the voluntary and intentional doing of an unlawful act by one of sound memory and discretion with the purpose, means, and ability to accomplish the reasonable and probable consequences of the act. It includes all the states of mind under which the killing of a person takes place without any cause which will in law justify, excuse, or extenuate the homicide. It is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which may be inferred from act and words, if any.” See 4 Branch’s Ann.P.C., 2d ed., Sec. 2194.4, p. 550.

      . Ellard did not involve a formal amendment of the indictment so as to raise any question of a violation of Article 28.10, Vernon’s Ann. C.C.P. The indictment there charged the assault to murder a police officer was “with malice aforethought.” The trial court did not charge upon or require a finding of malice aforethought and Ellard held the phrase was to be considered surplusage. The opinion stated, “Therefore, the words ‘with malice aforethought’ in the indictment are not descriptive of the offense and may be regarded as surplusage. Flores v. State, supra (487 S.W.2d 122).” This statement is misleading, for Flores did not so hold. In Flores, the defendant on appeal complained his motion to quash the indictment should have been granted since the indictment failed to allege the assault to murder a police officer was with malice aforethought. Rejecting this contention, this court held malice aforethought was not an essential element of the offense denounced by Article 1160a, Vernon’s Ann.P.C., and need not be alleged in the indictment. Flores did not hold as indicated in Ellard that if alleged the phrase “with malice aforethought” was not descriptive of the offense and could be regarded as surplusage.

        Renn was reversed on motion for rehearing. The original opinion, involving a casting of contempt upon the United States flag prosecution, held that the court did not err in striking from the indictment “by words and” since Delorme v. State, 488 S.W.2d 808 (Tex.Cr.App.1973), had construed the statute as being constitutional by striking the words “by words and” from the statute. However, no consideration was given in Renn as to whether the words stricken were descriptive of the offense, regardless of the Delorme opinion.


author: ROBERTS, Judge.

text:
    James EMANUS, Appellant, v. The STATE of Texas, Appellee.
    No. 50063.
    Court of Criminal Appeals of Texas.
    July 9, 1975.

      Bill Davis, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., Lubbock, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

Appellant was convicted by a jury of murder with malice under Arts. 1256 and 1257, Vernon’s Ann.P.C. The jury assessed his punishment at fifty years’ imprisonment.

In his first ground of error, appellant complains of the trial court’s refusal to allow him to perfect a bill of exception relative to the voir dire examination of one of the prospective jurors. He contends that such a ruling by the trial court prohibited him from showing the harm, if any, he suffered by not being allowed to ask certain questions of the prospective juror.

The complaint thus alleges an unreasonable restriction of the appellant’s voir dire examination. We are of the opinion that error, if any, would be apparent from the transcription of the voir dire proceedings. In moving to the harmfulness of any alleged error, we deem it unnecessary to consider whether the trial court actually committed error in restricting the voir dire examination.

There are two tests for harmless error in connection with voir dire proceedings. The test for ascertaining the harmfulness of an error in denying a proper challenge for cause is to look to the exercise of a defendant’s peremptory challenges. If there is no showing that he was forced to accept an objectionable juror because he had exhausted his peremptory challenges, an error in denying a challenge for cause is harmless. Ward v. State, 505 S.W.2d 832 (Tex.Cr.App.1974). An error in the unreasonable restriction of a defendant’s voir dire examination of the prospective jurors is quite another matter. Such examination is for the purpose of enabling counsel intelligently to exercise his peremptory challenges and a requirement that'he exercise all his peremptory challenges would ordinarily make no sense. Burkette v. State, 516 S.W.2d 147 (Tex.Cr.App.1974); Mathis v. State, 167 Tex.Cr.R. 627, 322 S.W.2d 629 (1959). The test for ascertaining harm in such cases is whether the trial judge’s limitation of the voir dire examination amounted to an abuse of discretion, thus depriving appellant of a valuable right. Burkette v. State, supra; Grizzell v. State, 164 Tex. Cr.R. 362, 298 S.W.2d 816 (Tex.Cr.App.1957) (opinion on motion for rehearing); Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974); Barrett v. State, 516 S.W.2d 181 (Tex.Cr.App.1974) (dissenting opinion). Our research has revealed no cases resulting in reversal where the limitation of the voir dire examination complained of pertained to only one juror. In the cases we have found which were reversed for this reason, the trial court has refused the asking of certain questions or otherwise acted with reference to the jury panel as a whole. Thus, counsel’s inability intelligently to exercise his peremptory challenges stretched to the entire panel of veniremen. The case at bar presents a situation in which counsel’s voir dire examination was limited as to one prospective juror only. The fact, conceded during oral argument, that appellant did not exercise all his peremptory challenges, is relevant in this situation and mitigates the harmfulness of any error.

Appellant’s reliance on Morris v. State, 411 S.W.2d 730 (Tex.Cr.App.1967), Vines v. State, 479 S.W.2d 322 (Tex.Cr.App.1972), and Jones v. State, 496 S.W.2d 566 (Tex.Cr.App.1973) is misplaced. Those cases related to the requirement of Art. 40.09, Sec. 4, Vernon’s Ann.C.C.P. that voir dire proceedings be recorded upon request. And they held that reversal would be required if error in the voir dire proceedings was merely alleged, if a proper request that the proceedings be recorded had been denied. The rationale of Morris and its progeny required reversal where an appellant was prevented by the violation of a mandatory statute from showing the harm he had suffered during voir dire. In the instant case, however, the harm, if any, is discernible from the face of the voir dire statement of facts, regardless of the way in which the prospective juror would have answered the excluded questions. We are not compelled to reverse because of the mere allegation of harm, as the appellant is suggesting that Morris et aL, would require us to do. We are capable of ascertaining the harmfulness of the trial court’s rulings on the voir dire questions propounded by appellant’s counsel by referring to the record. And we con-eude that error, if any, was harmless.

Appellant’s first ground of error is overruled.

In connection with appellant’s remaining grounds of error, it becomes necessary to summarize the testimony surrounding the facts of the offense in question. William M. Higgins testified for the State that he was walking east on Main Street in Lubbock on February 9, 1973, the date of the offense. He stated that appellant passed him walking at a normal pace going in the opposite direction and that the deceased, Larry Jack Stevens, a plainclothes Lubbock police officer, also passed him walking slightly faster after the appellant. Higgins testified he heard someone say “Turn me loose” or “Go away” or words to that effect and he looked over his shoulder to see what was happening. He saw appellant knock the deceased to his knees and then take out a pistol and fire three quick shots at him. As Higgins ran for cover, he testified, more shots were fired and both men fell to the sidewalk wounded. Stevens was pronounced dead soon thereafter. When asked what had happened by an investigating o£-ficer, appellant replied, “It’s simple. I shot him and he shot me.” Two other witnesses testified that they heard one shot and then a volley of shots, but they stated that it appeared to them that appellant fired the first shot. No other witness was able to relate any conversation between appellant and the deceased.

Appellant’s second and third grounds ascribe error to the trial court for his failure to charge the jury on the issues of murder without malice and self-defense. Appellant claims that these issues were raised by the evidence, entitling him to charges thereon.

Article 1257c of Vernon’s Ann.Penal Code provided as follows:

“In all cases tried under the provisions of this Act it shall be the duty of the Court, where the facts present the issue of murder without malice, to instruct the jury that murder without malice is a voluntary homicide committed without justification or excuse under the immediate influence of a sudden passion arising from an adequate cause, by which it is meant such cause as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection, and in appropriate terms in the charge to apply the law to the facts as developed from the evidence.”

The appellant did not testify. We are asked to find adequate cause for a sudden passion to arise in a man of ordinary temper on the basis of the other witness’ testimony. There was some testimony suggesting that the deceased may have attempted to detain appellant and there is evidence that someone, presumably the appellant, said “Turn me loose,” or words to that effect. Witness Higgins did not say that these words were shouted, screamed, or spoken with any degree of intensity of feeling. This is not evidence of such anger, rage, resentment, or terror as to render anyone incapable of cool reflection, whatever the cause. There is no suggestion that the deceased brandished a weapon or attacked appellant as in Monroe v. State, 501 S.W.2d 639 (Tex.Cr.App.1973) or Armentrout v. State, 515 S.W.2d 297 (Tex.Cr.App., Delivered Nov. 13, 1974). There is no evidence of animosity or earlier violence between the two as there was in Mays v. State, 513 S.W.2d 846 (Tex.Cr.App.1974), or Provost v. State, 514 S.W.2d 269 (Tex.Cr.App.1974). The only evidence of a scuffle is that the appellant shoved the deceased to his knees before he opened fire. There was nothing to indicate that appellant was frightened as in Ray v. State, 515 S.W.2d 664 (Tex.Cr.App.1974). This ground of error is overruled.

Appellant’s claim to a charge on self-defense is based on Art. 1223, V.A.P.C., which provided as follows:

“When the homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapon or means used by the party attempting such murder, maiming, disfiguring or castration are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury.”

The prerequisites to the application of this presumption were most recently stated in Stone v. State, 510 S.W.2d 612 (Tex.Cr.App.1974), where the Court said:

“It has been the consistent holding of this Court that before the presumption of said Article comes into play there must be a showing (1) that the deceased had a weapon, (2) that such weapon in the manner of its use was calculated to cause death, and (3) that the deceased was using the weapon to make an assault upon the appellant at the time the appellant fired the fatal shot.”

Admittedly, the first two requirements stated above are satisfied under the evidence in this record. Obviously, the deceased had a gun and obviously it was used in a manner calculated to cause death. The question is whether there is evidence to show that the deceased used the weapon in an assaultive manner before he was shot by appellant. Stone v. State, supra; Johnson v. State, 501 S.W.2d 915 (Tex.Cr.App.1973).

The evidence suggested that the deceased approached the appellant with his police badge in his hand — nothing more. Those witnesses who testified to seeing a gun saw a gun only in the appellant’s possession. No one saw a weapon in the deceased’s hands. Witness Higgins was sure appellant fired the first three shots. Two other witnesses who thought the flurry of shots was preceded by a single shot testified that the single shot either came from appellant or came from his direction. In his brief, appellant strenuously urges that the evidence suggests that the deceased may have fired the first shot, but such contention is not borne out by the record. The possibility that the deceased fired first is very remote under these facts.

In fact, such a possibility would have to be based completely on conjecture. There was no evidence indicating the deceased fired first. An inference cannot be based upon an inference. 23 Tex.Jur.2d, Evidence, Sec. 69, and cases cited therein. Without evidence at least raising the question, appellant was not entitled to the benefits of the presumption of Art. 1223.

Finally, appellant complains of the court’s failure to charge on appellant’s right to resist an unlawful arrest and his right to resist an illegal restraint. He places his primary reliance on Matterson v. State, 142 Tex.Cr.R. 250, 152 S.W.2d 352 (1941) for the proposition that a defendant is entitled to such a charge when the issue of detention (or arrest) is raised by the evidence. In Matterson, however, the defendant testified in detail about the deceased’s grasp on her wrist and his threats to choke her. Defendant’s testimony alone is sufficient to raise such issues, as it clearly did in Matterson. Barnes v. State, 172 Tex.Cr.R. 303, 356 S.W.2d 679 (1962) (opinion on State’s motion for rehearing), also relied upon by appellant, is likewise distinguishable. There was ample evidence in that case to shew that the deceased, a night watchman for the City of San Augustine, interrogated and attacked defendant apparently without probable cause to do so. The Court said that these facts raised the issue of resisting an unlawful arrest. In Sullivan v. State, 365 S.W.2d 810 (Tex.Cr.App.1963), the defendant testified that the deceased was holding her by the wrist, that he struck her, and that she was in fear. Nevertheless, her omission to assert that the fatal stabbing was for the purpose of freeing herself from the illegal restraint defeated her claim to a charge on such issue. In the case at bar, there is a similar lack of evidence on the appellant’s need to free himself from an illegal restraint. In fact, there is also an absence of evidence of any restraint or arrest at all. None of the evidence as to the shoving, the brandishing of weapons, and the initial shooting supports appellant’s claim that he was being unlawfully detained.

Appellant’s grounds of error are overruled and the judgment is affirmed.

      . Two members of the unanimous court in Vines, which followed Morris, have since changed their positions, casting doubt on the continued validity of the Morris line of cases. See dissenting opinions on original submission and on appellant’s motion for rehearing in Jones v. State, supra.

      . Nor is reversal required because of the violation, per se, of any mandatory statute as the dissenters would hold in Art. 40.09, Sec. 4, cases. Jones v. State, supra.


author: DALLY, Commissioner.

text:
    Robert Milton BEAUPRE, Appellant, v. The STATE of Texas, Appellee.
    No. 50184.
    Court of Criminal Appeals of Texas.
    July 16, 1975.
    Rehearing Denied Sept. 17, 1975.

      Joe Mike Egan, Jr., Kerrville, for appellant.
    John F. Pettit, Dist. Atty., Del Rio, Jim D. Vollers, 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 rape; the punishment assessed is imprisonment for twenty-five years. The appellant asserts that the court erred (1) in admitting testimony of the prosecutrix that she identified him in a lineup, (2) in admitting evidence obtained in an unlawful search, and (3) in failing to grant a mistrial when a witness’ testimony revealed that the appellant was a married man.

While the appellant does not complain about the in-court identification made of him by the prosecutrix, he does urge that the court erred in permitting the prosecutrix to bolster her in-court identification of him by her testimony that she had identified him in a police station lineup. He argues that his right to due process under the Fourteenth Amendment to the Constitution of the United States was violated because (1) the lineup identification was tainted by a one-on-one confrontation at the Kinney County Courthouse which occurred six days before the lineup was held, and (2) the lineup was unfair and suggestive of his culpability. He also argues that his rights under the Sixth Amendment to the Constitution of the United States were violated; he alleges that it was error for the court to admit the prosecutrix’ testimony that she had identified him at a police station lineup, because he did not waive the right and he was not represented by counsel at the lineup, which he asserts was conducted six days after he had been formally charged with the commission of the offense.

Prior to trial the appellant presented his motion requesting the exclusion of the pros-ecutrix’ testimony concerning her identification of him at the police station lineup. After hearing this motion, the trial judge followed the procedure outlined in Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.1969), and made findings of fact and conclusions of law; he overruled the motion and held that the rights of the appellant had not been violated in any of the identification procedures used by law enforcement officers. The evidence heard in the pretrial motion and during the trial will be summarized.

The fifteen year old prosecutrix and two of her high school friends were walking home from a baseball field at about 7:3Q p. m. on May 13, 1973, when they noticed a yellow automobile with a black top being driven around their neighborhood in Brack-ettville. The prosecutrix departed from her friends, and as she continued to walk home, the automobile, which she and her companions had previously observed, approached and stopped. The appellant, who was the driver, threatened the prosecutrix with a revolver, and forced her to get into the automobile. He drove to an abandoned house where he tied her wrists with a rope, and there on an old mattress on the floor forced her to have sexual intercourse with him. After completing the act, he drove back toward the prosecutrix’ home and let her get out of the automobile. She ran to the home of a friend where she fainted, but was soon revived and told those present that she had been raped; the rape was then reported to the sheriff. The prosecutrix’ wrists were red and scratched where she had been tied with a rope. The sheriff went to the abandoned house, where he found a rope and an old mattress on the floor. The prosecutrix was examined later that night by a physician who found live sperm in her vagina.

On the evening of May 29th the prosecu-trix, while with her brother, saw the appellant ¿riving the yellow and black automobile in the neighborhood where she lived. The prosecutrix and her brother recorded the license plate number of the automobile that the appellant was driving. They notified the sheriff that they had seen the appellant; the sheriff then arrested the appellant and took him to the courthouse. Soon after the arrest, while the appellant was sitting in the sheriff’s office, the sheriff asked the prosecutrix to look at the appellant through the glass door of his office. The prosecutrix did so, and she told the sheriff that the man sitting in his office was the one that had raped her. Six days later the prosecutrix viewed a lineup held at the police station in Del Rio. From a lineup of eight men she identified the appellant as the man who had raped her.

At the trial, the prosecutrix identified the appellant as the man who had raped her. She was also permitted to testify that she had identified the appellant when she saw him sitting in the sheriff’s office in the Kinney County Courthouse and when she saw him in the lineup at the police station in Del Rio. The two high school friends who had been walking with the prosecutrix prior to the time the appellant forced her into his automobile testified at the trial; they identified the appellant as the man whom they had seen driving the yellow and black automobile the night the prosecutrix was raped.

The sheriff did not act improperly in permitting the prosecutrix to see the appellant soon after his arrest. The prosecutrix had seen him only moments before when he was driving his automobile and while he was in the street talking with a little girl. It was the prosecutrix’ description of the appellant, just prior to his arrest, that led the sheriff to arrest the appellant. It was common sense under these circumstances for the sheriff to ascertain that he had arrested the man who the prosecutrix said had raped her. Even though it may have been a one-on-one confrontation we do not find that this procedure was unfair, suggestive, or likely to lead to misidentification, or that it tainted her later identification of the appellant in the police station lineup. We have considered all the facts, including the opportunity that the prosecutrix had had to observe the appellant for one and one-half hours when the offense was committed, approximately two weeks before the appellant was arrested.

The appellant’s complaint concerning the method and fairness with which the police station lineup in Del Rio was conducted is unwarranted. There are three color photographs of the lineup in the record. They show that the appellant and seven other men were placed in three different positions in the lineup; the prosecu-trix selected the appellant each time. The photographs show that the men in the lineup bear an unusually similar physical appearance to that of the appellant, and all were dressed in sport shirts and slacks as was the appellant. The only specific complaint that the appellant appears to have is that six of the men, including the appellant, were wearing trousers that had belt loops, and all except the appellant were wearing belts. The other two men in the lineup were wearing beltless type trousers. The appellant contends that since the appellant was not wearing a belt that this would unduly draw attention to his appearance. We find this argument has little merit. The photographs and testimony show the lineup was conducted with care and fairness.

We hold the appellant was not denied due process. We will have to give further consideration to the record to discuss the appellant’s claim that he was denied his Sixth Amendment right to counsel at the police station lineup. The evidence shows that an attorney was present when the lineup was conducted, but it fails to show that the attorney was representing the appellant. In any event the trial judge made a specific finding that the appellant was not represented by counsel at the lineup. The trial judge also found as a matter of law that the appellant was not entitled to counsel because he was not indicted until after the lineup was held. The appellant says that he was formally charged by complaint on the evening of May 29th in the Justice Court with the commission of this offense; this was six days before the lineup was held. There is no Justice Court complaint in the record. The appellant argues that circumstantial evidence conclusively proves he was formally charged with this offense before the lineup was held. Appellant declares that he did not waive this right and was therefore entitled to counsel at the lineup.

Since the record does not show that the appellant was formally charged with the commission of this offense before the lineup was held, it has not been shown he was entitled to counsel at the lineup. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Lane v. State, 506 S.W.2d 212 (Tex.Cr.App.1974). Therefore, it was not error to admit the testimony of the prosecutrix that she had identified the appellant in the police station lineup.

Even if the appellant had been formally charged with the commission of the offense and was therefore entitled to counsel at the lineup, we find that the admission of the prosecutrix’ testimony that she had identified the appellant in the lineup was harmless error beyond a reasonable doubt. When the totality of the circumstances is considered it is clear that the prosecutrix’ in-court identification testimony was based upon her observation of the appellant during the one and one-half hours that she was with him at the time the offense was committed. The admission of the prosecutrix’ testimony that she identified appellant at the lineup added nothing that was calculated to cause the jury to return a different verdict than they would have returned if it had not been admitted.

The appellant urges that a revolver, scabbard, and cartridges found in his automobile were obtained in an unlawful search and, over a timely objection, were erroneously admitted in evidence. The State contends that the evidence was properly admitted because it was obtained after the appellant’s wife voluntarily consented to a search of the automobile. Although there is testimony that a warrant to search the automobile was obtained, the warrant was not exhibited to the judge.

“When the prosecutor seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effect sought to be inspected.” United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

And see Swift v. State, 509 S.W.2d 586 (Tex.Cr.App.1974); Morrison v. State, 508 S.W.2d 827 (Tex.Cr.App.1974).

After the appellant was arrested on the evening of May 29th, the sheriff rolled up the windows and locked the doors of the automobile the appellant had been driving and left it parked near the courthouse. On the morning of May 30th, while the appellant was still incarcerated, his wife came to Brackettville. She was the registered title owner of the automobile which her husband had been driving. She asked the sheriff if she could use that automobile to drive to Uvalde where she wanted to go to consult a lawyer. The sheriff refused to let her take possession of the automobile; he said he wanted to retain possession of the automobile until he could obtain a warrant to search it. She replied, “It’s my car. Go ahead and search it all you want to.” The sheriff testified that he did not ask Mrs. Beaupre for her consent to search the automobile, but that she volunteered her consent for the search. Mrs. Beaupre, in her testimony at the hearing on the motion to suppress, admitted she gave her oral consent for the search of the automobile, but said she refused to give her written consent for the search. After the search the sheriff released the automobile to Mrs. Beaupre.

It was not necessary for the sheriff to advise Mrs. Beaupre that she had a right to refuse to permit a search of the automobile. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Ribble v. State, 503 S.W.2d 551 (Tex.Cr.App.1974); Potts v. State, 500 S.W.2d 523 (Tex.Cr.App.1978). The sheriff’s statement that he was going to obtain a warrant to search the automobile did not render Mrs. Beaupre’s subsequent consent for the search involuntary. Resendez v. State, 523 S.W.2d 700 (Tex.Cr.App.1975); Stephenson v. State, 494 S.W.2d 900 (Tex.Cr.App.1978); Hoover v. Beto, 439 F.2d 913 (5th Cir. 1971).

The appellant also argues that Mrs. Beaupre’s offer to let the sheriff search her automobile was in the nature of an offer to contract and that the offer “died either for failure of consideration (if unilateral) or lack of acceptance (if bilateral).” The trial judge had sufficient evidence to conclude that the offer to permit the search was voluntary; we disagree that a waiver and consent to search is based on the law of contracts.

We find the State demonstrated that Mrs. Beaupre, who was not in custody, without duress or coercion, expressed or implied, voluntarily consented to a search of the automobile. There was a valid waiver of constitutional rights; the evidence was properly admitted. See Schaeckloth v. Bus-tamonte, supra.

The appellant’s remaining complaint is that the court erroneously refused to grant a motion for mistrial when a witness who was being cross-examined by defense counsel revealed that the appellant was a married man. The appellant’s objection came after a later question had been answered and was therefore too late to preserve the alleged error. The court promptly instructed the jury to disregard the witness’ testimony concerning which the objection was made. Moreover, later in the trial there was a great deal of testimony which revealed that the appellant was a married man. Cf. Allen v. State, 513 S.W.2d 556 (Tex.Cr.App.1974).

The appellant has been improperly sentenced; a discussion of the procedural facts is necessary. The appellant was charged in the first count of the indictment with rape by force, threats, and fraud. He was charged in the second count of the indictment with the rape of a female under the age of seventeen years who was not his wife. Both counts of the indictment were submitted to the jury; on February 21, 1974, the jury returned a verdict finding the appellant guilty on both counts. The evidence is sufficient to support either verdict and shows that the offense was committed on May 14,1973. The court incorporated both verdicts in the judgment. Punishment of imprisonment for twenty-five years was assessed on each count. The appellant then moved the court to sentence him under the provisions of the new Penal Code effective January 1, 1974. See Sec. 6(c), Ch. 399, Acts of the 63rd Leg., R.S., 1973. The appellant was sentenced in connection with count one of the indictment to be confined in the Texas Department of Corrections for not less than five years and not more than twenty-five years. He was sentenced in connection with count two of the indictment to be confined in the Texas Department of Corrections for not less than two years and not more than twenty years. The punishment in relation to count two was reduced from twenty-five years to twenty years because the new Penal Code provides that the offense of rape of a child under the age of seventeen years is punishable as a second degree felony. V.T.C.A., Penal Code, Sec. 21.09.

A defendant cannot be convicted for separate counts in the same indictment. See Ex parte Easley, 490 S.W.2d 570 (Tex.Cr.App.1972). The judgment will be reformed to show that the appellant was found guilty of the single offense of rape by force, threats, and fraud. Further, if a defendant elects to be punished under the provisions of the new Penal Code, he is still guilty of the offense for which he was convicted under the former Penal Code but is entitled to have punishment assessed under the provisions of the new Penal Code. The sentence will therefore be reformed to show that the appellant was found guilty of the single offense of rape by force, threats, and fraud, rather than aggravated rape and that he is sentenced to confinement in the Texas Department of Corrections for not less than five years and not more than twenty-five years. The recitations in the judgment and sentence that the appellant was found guilty of the offense of rape of a female under the age of seventeen years not his wife shall be deleted from the judgment and sentence. It is so ordered.

The judgment and sentence as reformed are affirmed.

Opinion approved by the Court.

      . The election to have the appellant sentenced under the new Code was not timely. See Stephenson v. State, 517 S.W.2d 277 (Tex.Cr.App.1975).


text:
    Sherman Lee ARCH, Appellant, v. The STATE of Texas, Appellee.
    No. 50445.
    Court of Criminal Appeals of Texas.
    July 16, 1975.
    Rehearing Denied Sept. 17, 1975.
    Antonio G. Cantu, San Antonio (Court-appointed), for appellant.
    Ted Butler, Dist. Atty., Michael Schill, Alan E. Battaglia, Asst. Dist. Attys., San Antonio, Jim D. Vollers, 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 burglary, a violation of V.T.C.A., Penal Code, Sec. 30.02. The court accepted the appellant’s plea of guilty and, after hearing the evidence, assessed punishment at imprisonment for eighteen years.

The appellant asserts that his plea of guilty was not voluntary. He says he was coerced to enter a plea of guilty to the primary offense alleged in the indictment to avoid conviction and a greater punishment under the enhancement allegations of the indictment. He also asserts that the trial court erred in failing to inquire of him whether his plea of guilty resulted from coercion because of the allegation of the prior convictions made in the indictment to enhance punishment.

The indictment alleged, in addition to allegations concerning the primary offense, two prior felony convictions to enhance punishment. The State, with the court’s consent, waived and abandoned that portion of the indictment relating to prior convictions. The appellant waived trial by jury and entered a plea of guilty to the primary offense. The appellant was admonished by the court of the consequences of his plea in compliance with all the requirements of Article 26.13, Vernon’s Ann.C.C.P.

A plea of guilty is not involuntary even though it results from a plea bargain entered into for the purpose of avoiding punishment enhanced by proof of prior convictions. Garza v. State, 502 S.W.2d 155 (Tex.Cr.App.1973). Cf. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), where it was held that a plea of guilty was not involuntary even if entered because of a desire to avoid the possibility of the penalty of death.

Neither constitutional nor statutory provisions require that the court inquire of the defendant whether his plea is the result of a plea bargain made to induce the state to waive and abandon enhancement provisions of the indictment.

In a supplemental brief the appellant urges that the indictment is fundamentally defective. The pertinent part of the indictment reads as follows:

“. . . on or about the 22nd day of May, A.D., 1974, SHERMAN LEE ARCH did then and there, with intent to commit theft, enter a building which was not open to the public, without the effective consent of LOUISE SIEBENALER, the owner; . . . ”

V.T.C.A., Penal Code, Sec. 30.02, in pertinent part provides:

“(a) A person commits an offense if, without the effective consent of the owner, he:
“(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; . . . ”

We do not find that the omission of the word “then” from the indictment is fatally defective. An allegation that the building “was not open to the public” rather than “was not then open to the public” might require different proof. Cf. Garza v. State, 522 S.W.2d 693 (Tex.Cr.App.1975).

The judgment is affirmed.

Opinion approved by the Court.

      . Effective June 19, 1975, Article 26.13, V.A. C.C.P., as amended by S.B. 122, Sec. 3, 64th Leg., R.S., in part provides:
      “(a) Prior to accepting a plea of guilty or plea of nolo contendere the court shall admonish the defendant of:
      “(1) • • •
      “(2) the fact that any recommendation of the prosecuting attorney as to punishment is not binding on the court.”


author: LUKOWSKY, Justice.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF TRANSPORTATION, BUREAU OF HIGHWAYS, Appellant, v. LOUISVILLE GAS & ELECTRIC COMPANY, Appellee.
    Court of Appeals of Kentucky.
    June 20, 1975.
    Rehearing Denied Sept. 19, 1975.
    William L. Willis, Gen. Counsel, Asst. Atty. Gen., Dept, of Transp., Bureau of Highways, Frankfort, Frank Yates, Jr., Louisville, for appellant.
    Clifford E. Smith, Jr., Smith & Duff, Frankfort, Charles G. Middleton, Jr., Middleton, Reutlinger & Baird, Louisville, for appellee.
   LUKOWSKY, Justice.

The Commonwealth of Kentucky, Department of Transportation, Bureau of Highways appeals from a judgment of the Franklin Circuit Court which determines the rights of the parties in relation to utility lines running along Dixie Highway in Jefferson County. The removal and relocation of the lines by Louisville Gas and Electric Company was necessitated by the widening of Dixie Highway by the Commonwealth under the direction of the Federal Highway Administration. The trial court held that as a matter of law and fact L. G. & E. had a perpetual private easement and that it was entitled to reimbursement for removal and relocation expenses. We affirm.

The Louisville Turnpike Road Co. was chartered by the legislature in 1833 to construct a road from Elizabethtown to Louisville and from Louisville toward the Kentucky-Tennessee border. Section 4 of the charter enumerated some of the powers granted. It specifically made the stockholders capable “of purchasing, taking and holding, to them and their successors and assigns, and of selling, transferring and conveying, in fee simple, all such lands, hereditaments and estates, real or personal, as shall be necessary to them, in the prosecution of their works.”

This exact language was included in the charter of a turnpike company which came into existence in 1884. In regard to that charter, we construed these very words to mean that a company so empowered could buy all the land required for the road by contract and that any land purchased in such manner was held by the company in fee simple absolute. Foster v. Frankfort, L. & V. Turnpike Road Co., Ky., 65 S.W. 840 (1901). The method used by a turnpike company to obtain land determines the type of possessory interest it holds. If the land is obtained by condemnation the company merely owns the use of land as long as it is employed as a turnpike; if it is obtained by contract the company has corporeal title in fee simple. Miller v. Flemingsburg and Fox Springs Turnpike Co., 109 Ky. 457, 59 S.W. 512, 22 Ky.Law Report 1039 (1900).

An 1837 act of the legislature noted that Louisville Turnpike Road Co. had purchased and received conveyances of some small tracts of land in fee simple and that to remove any doubts of the propriety of such activity the title thus acquired was confirmed. The record reflects 1869 conveyances of the turnpike and its right of way to and from Philip Thornberry which are consistent with the transfer of fee simple title.

The original turnpike company went through a number of reorganizations and in 1871 was renamed Valley Turnpike and Gravel Road Company. In 1889 Valley granted Kentucky Rock Gas Co. a “right of way for gas main and telephone line in and along the right of way of . its turnpike,” with a restriction that the line could not “interfere or trespass the said first party’s (Valley) necessary and proper use of said highway either in controlling, operating or repairing the same nor is this grant of right an exclusive one.” The consideration for this grant was slightly more than twelve per cent of the sum which Valley received when it later sold its remaining interest in the turnpike.

On May 3, 1901 Valley approved a transfer by Kentucky Rock Gas of its rights in the right of way of the turnpike to Kentucky Heating Company. This document was recorded on May 4, 1901. Later Kentucky Heating and Louisville Gas Co. were consolidated to form L. G. & E.

On May 7,1901 Valley conveyed all of its right, title and interest in and to the turnpike to Jefferson County, expressly excepting therefrom the “rights or privileges heretofore granted” to L. G. & E.’s predecessors in title. This deed was accepted and recorded by Jefferson County and it thereafter conveyed its rights to the Commonwealth.

The lines of L. G. & E. and its predecessors in title occupied a definite limited space, fixed by their actual location pursuant to the 1889 instrument, for eighty-six years until the recent location.

In 1961 the Commonwealth entered into an agreement with L. G. & E. for relocation of the lines. The agreement expressly recognized a private easement and the Commonwealth agreed to assume one hundred per cent of the expense of relocation. For some reason which is not made clear in this extremely abbreviated record, the agreement never was fulfilled and this litigation resulted.

The Commonwealth cites numerous cases for the proposition that L. G. & E. should bear the expenses involved in relocation and removal of the lines. The most recent case is Commonwealth v. Louisville Water Co., Ky., 479 S.W.2d 626 (1972). These cases involved situations where the utility company had a mere franchise from the state, a simple license, or an easement which was restricted from the outset by requiring the utility to pay for the relocation if public necessity warranted a change in the structure of the road. This is not the situation at bar. Here, a private corporation, Valley, a common grantor, with power to hold land in fee simple granted to another private corporation, Kentucky Rock Gas Co., a permanent private easement to lay and maintain gas and telephone lines in and along the right of way of Dixie Highway.

From the language recited in the 1833 charter it is apparent that the original turnpike company had the power to buy the necessary land for its project by contract in fee simple. It is equally clear that Kentucky Rock Gas was granted a permanent private easement in 1889. The Commonwealth’s title came from the same source and the deed specifically recognized the existence and superiority of the easement. One who claims an interest in land through a deed may not adopt the portions which are beneficial to him and reject those which are not; by claiming under a deed the party so doing confirms all parts of that deed. Jeffries v. Hignite, 206 Ky. 50, 266 S.W. 901 (1924). If the Commonwealth had so desired it could have purchased or condemned the easement at the same time it obtained the remaining fee interest. It got what it paid for, a fee simple interest subject to a permanent easement.

The Commonwealth contends that it is not required to reimburse L. G. & E. for relocation and removal expenses because the widening of Dixie Highway is a valid exercise of the police power. This position is untenable. The rights of the public in a street are those it purchased and paid for. If its representatives have been so short sighted as to acquire the fee subject to an easement, we see no more authority for supplying the latter without compensation than there would be in taking the right of way in the first place and refusing to pay for it. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322, 28 A.L.R. 1321 (1922); Department for Natural Resources and Environmental Protection of Commonwealth of Kentucky v. No. 8 Limited of Virginia, Ky., 528 S.W.2d 684 (1975).

The glove of precedent which fits the hand in this case is Commonwealth v. Means & Russell Iron Co., 299 Ky. 465, 185 S.W.2d 960 (1945). There the relocation of three thousand feet of a water line was necessitated by the widening of a public road, along which the company held a private easement. The rule is now as it was then, when the government requires the relocation of a perpetual easement for the public convenience its owner is entitled to compensation in the form of damages, which may be determined by the actual cost of relocation. L. G. & E. had a private easement which was taken by state action, therefore it is entitled to just compensation. To the extent that Ward v. Southern Bell Telephone and Telegraph Co., Ky., 436 S.W.2d 794 (1969) may be construed as expressing views inconsistent herewith it is overruled.

The judgment is affirmed.

All concur.


text:
    Nathan R. MORRISON, Appellant, v. TRAILMOBILE TRAILERS, INC., and Pullman Corporation, Appellees.
    Court of Appeals of Kentucky.
    June 27, 1975.

      Charles E. Duncan, Duncan & Lehnig, Louisville, for appellant.
    Kenneth L. Anderson, Woodward, Hob-son & Fulton, Louisville, for appellees.
   LUKOWSKY, Justice.

This is an appeal from a judgment of the Jefferson Circuit Court which dismissed the claim of the appellant for property damage in a products liability case. We affirm.

By agreement of the parties the case was tided to the court sitting without a jury. At the conclusion of the evidence adduced by the appellant the court “rendered a Directed Verdict” for the appellees. The court made findings of fact and conclusions of law and, based upon these, entered its judgment. In a nutshell, the findings are the appellant failed to persuade the court that the trailer was defective at the time it left the hands of the appellees and that a defect in the trailer was a substantial factor in causing the accident and damages in issue.

The appellant contends that the quality of his proof is sufficient to frame an issue of fact and that the trial court consequently erroneously directed a verdict and did not make a finding of fact.

The appellees respond that the trial court was the trier of fact and properly made factual findings.

This tripartite procedural disorientation makes it necessary that we write a miniprimer on the applicable rules of civil procedure. It is fundamental that only juries return verdicts and that in all actions tried upon the facts without a jury or with an advisory jury the court finds facts. CR 52.01.

CR 41.02(2) provides:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52.01.

This provision is complementary to CR 50.-01 which authorizes a motion for a directed verdict in a jury trial. The motion to dismiss in this limited respect fulfills the same mid-trial function as a motion for a directed verdict in a jury case.

It is obvious that the considerations of the trial court on a motion to dismiss in a bench trial are quite different from those on a motion for a directed verdict in a jury trial. The quoted section of the rule allows the trial court to determine the facts, and if judgment is rendered against the plaintiff on the merits it is required to make findings as directed by CR 52.01. As a result of this provision, the trial court in such cases must weigh and evaluate the evidence. The trial court does not, as in the case of a motion for a directed verdict, indulge every inference in the plaintiff’s favor.

CR 43.01 placed the burden and risk of non-persuasion on the appellant as to the issues upon which the trial court made findings. CR 52.01 limits our review to the question of whether those findings are clearly erroneous and admonishes us to give due regard to the opportunity of the trial court to judge the credibility of the witnesses.

When the trial court makes a finding of fact adverse to the party having the burden of proof and his is the only evidence presented, the test of whether its finding is clearly erroneous is not one of support by “substantial evidence”, but rather, one of whether the evidence adduced is so conclusive as to compel a finding in his favor as a matter of law. Cf. Withers v. Berea College, Ky., 349 S.W.2d 357 (1961); Begley v. Wooton, Ky., 350 S.W.2d 497 (1961).

The appellant argues that his evidence creates questions of fact. This is correct, but these questions' were determined adversely to him by the trier of the facts. On the whole his evidence was not so overpowering that a reasonable fact finder could not fail to be persuaded by it.

Once the facts were found the trial court correctly applied the principles of Briner v. General Motors Corporation, Ky., 461 S.W.2d 99 (1971) and Midwestern V. W. Corporation v. Ringley, Ky., 503 S.W.2d 745 (1973) and dismissed the case.

Despite the confusion of misnomers, the procedural path followed by the trial court was as provided by the rules, and its factual findings are not clearly erroneous.

The judgment is affirmed.

All concur.