author: CORNELIUS, Commissioner.

text:
    Willie HANKS, Appellant, v. The STATE of Texas, Appellee.
    No. 52172.
    Court of Criminal Appeals of Texas.
    Oct. 27, 1976.

      Melvin J. Boneau, Port Arthur, Donald B. Moye, Nederland, for appellant.
    Tom L. Hanna, Dist. Atty., John R. De-Witt, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

CORNELIUS, Commissioner.

Appellant was convicted, under the former Penal Code, of murder. Punishment was assessed at fifty (50) years’ confinement.

Appellant and the deceased, Bessie Ann Love, had lived together for about two years. They separated about a week prior to the occurrence in question. On the day of the offense, they were at the apartment of the deceased’s sister, and had been drinking. At about 10:05 in the evening, appellant shot the deceased six times with a .22 caliber pistol. She died prior to reaching the hospital. At the guilt-innocence stage of the trial, appellant requested the court to instruct the jury on murder without malice and temporary insanity due to involuntary intoxication. Both requests were refused.

In his first ground of error, appellant complains of the failure to charge the jury on murder without malice. To support his contention that the charge should have been given, appellant points to testimony of Louis Braxton Love, the brother of the deceased, that immediately before the killing he heard the following verbal exchange between appellant and the deceased:

Deceased: “No, I’m not going anywhere with you. You put me out and I want you to leave me alone,__ I’m. not going to leave with you. You don’t want me. You put me out. _, . . just leave me alone. You’re not my man anymore.”
Appellant: “I’m tired of this_”

Appellant contends this testimony raises an inference that he acted in a rage of sudden passion, and was therefore sufficient to raise the issue of murder without malice. We do not agree. Under the former Penal Code, murder without malice was 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. Art. 1257c, V.A.P.C. There was no testimony here that the quoted exchange or any other circumstance caused appellant to become enraged or overcome with sudden passion. No witness testified that he appeared incapable of cool reflection. In fact, appellant himself testified, and his only defense was that because of intoxication he did not remember what happened and did not know he had shot the deceased until sometime after the killing. He stated that he was not angry at anyone and simply could not remember what happened. In these circumstances, the evidence did not raise the issue of murder without malice. Ortegon v. State, 459 S.W.2d 646 (Tex.Cr.App.1970); Allen v. State, 169 Tex.Cr.R. 318, 333 S.W.2d 855; Dickson v. State, 463 S.W.2d 20 (Tex.Cr.App.1971); Bryant v. State, 482 S.W.2d 270 (Tex.Cr.App.1972). The failure to instruct the jury on murder without malice is not error unless there is evidence raising the issue. Dickson v. State, supra. Moreover, appellant requested the charge at the guilt-innocence stage of the trial but did not reurge it at the punishment stage. At the time of this trial, the lack of malice did not affect the question of guilt, but only that of punishment. Thus, the proper time to have requested a charge on murder without malice was at the punishment stage. Foster v. State, 493 S.W.2d 812 (Tex.Cr.App.1973); Jones v. State, 504 S.W.2d 906 (Tex.Cr.App.1974). Ground of error number one is overruled.

The second ground of error asserts that the court erred in failing to charge the jury on temporary insanity due to involuntary intoxication. Appellant contends that the issue was raised by his testimony that after he had consumed one beer he was about to drink another when the deceased took something from her bosom and dropped it in his drink. Appellant asked the deceased what she put in his beer and she answered, “Nothing. You go ahead and drink it. It’s good.” Appellant then said, “You did something to it.” She answered, “Drink it. Its still good.” There was no testimony tending to identify the substance placed in appellant’s drink, but Dr. Walters testified, in answer to a hypothetical question, that if one had consumed only the quantity of beer appellant testified he drank, and then had a foreign substance placed in his drink, and thereafter acted irrationally and suffered a complete loss of memory, it was likely that the substance placed in his drink was either LSD, cocaine or diazepan. Dr. Walters did not examine or treat appellant. Aside from the question of temporary insanity resulting from involuntary intoxication as a defense to crime, this evidence was not sufficient to raise the issue of involuntary intoxication. If appellant was aware that a suspected drug had been placed in his drink, as he testified, and in spite of such knowledge he drank the beverage, any intoxication resulting therefrom could not be classified as involuntary. To constitute involuntary intoxication, there must be an absence of an exercise of independent judgment and volition on the part of the accused in taking the intoxicant. See Johnson v. Commonwealth, 135 Va. 524, 115 S.E. 673, and Annot., 30 A.L.R. 761. Voluntary intoxication from liquor or drugs or a combination thereof is not a defense, but evidence of temporary insanity resulting from such intoxication may be considered by the jury in mitigation of punishment. Art. 36, V.A.P.C. Appellant made no request at the punishment stage of the trial for an instruction to that effect. Ground of error number two is overruled.

In his third ground of error, appellant complains of an alleged comment by the trial judge. Appellant’s objection to the comment was sustained and the trial judge instructed the jury not to consider it for any purpose. No motion for mistrial was made. As appellant received all the relief he requested, no error is shown. Ground of error number three is overruled.

The judgment of the trial court is affirmed.

Opinion approved by the Court.

      . See Carter v. State, 12 Tex. 500; Colbath v. State, 4 Tex.App. 76 (1878); Annot., 30 A.L.R. 761.

      . Now V.T.C.A. Penal Code, Sec. 8.04.


source: Caselaw Access Project

license: Public Domain

text:
    Marvin Earl GREEN, Appellant, v. The STATE of Texas, Appellee.
    No. 52253.
    Court of Criminal Appeals of Texas.
    Oct. 27, 1976.

      William C. Denton, Houston, on appeal only, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis M. Bell and Ira Jones, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

CORNELIUS, Commissioner.

This is an appeal from a conviction for burglary of a building. The jury found the paragraphs of the indictment charging that appellant had previously been convicted of two felony offenses to be true, and punishment was set at confinement for life. The sufficiency of the evidence to support the conviction is not challenged.

Appellant first complains of the action of the court in allowing the complaining witness to testify that someone had entered his building the night before the offense in question by knocking a hole in the wall. After that entry, the hole had been boarded up. The subsequent entry was made by removing the boards and entering the same hole. There was no evidence tending to connect appellant with the prior entry. It is contended that testimony about the prior entry constituted improper evidence of' an extraneous offense under the ruling of Carmean v. State, 163 Tex.Cr.R. 218, 290 S.W.2d 240. We note, however, that considerably prior to the testimony of which appellant complains the very same evidence had been given in full detail by the complaining witness on direct examination by state’s counsel, and appellant made no objection. Where testimony has previously been admitted without objection, the admission of the same testimony at a later date does not constitute reversible error. Lewis v. State, 438 S.W.2d 816 (Tex.Cr.App.1969); Rivera v. State, 437 S.W.2d 855 (Tex.Cr.App.1969); East v. State, 420 S.W.2d 414 (Tex.Cr.App.1967).

It is next contended that the evidence is insufficient to support the jury’s finding that appellant had been convicted of two previous felony offenses as required by the provisions of V.T.C.A. Penal Code Sec. 12.42(d). The basis of this contention is that the state’s proof of the date of the second offense consisted only of a recital of that date in a copy of the judgment of conviction which was introduced in evidence. As this court has held that such a recital in a judgment is surplusage and that it does not invalidate the judgment if it is inaccurate, appellant asserts that such a recital should not constitute sufficient proof of the date of the offense for the purposes of enhancement. We cannot accept this proposition. It is well settled that a recital in the judgment of conviction specifying the date of the offense constitutes sufficient evidence of that date for the purposes of Section 12.42. Loud v. State, 499 S.W.2d 295 (Tex.Cr.App.1973); Espinosa v. State, 463 S.W.2d 8 (Tex.Cr.App.1971); Von Burleson v. State, 505 S.W.2d 553 (Tex.Cr.App.1974). The fact that the recital is not essential to the judgment does not destroy the recital’s competency as evidence. In fact, the case of Ruiz v. State, 499 S.W.2d 299 (Tex.Cr.App.1973), which held such a recital to be surplusage as to the judgment, nevertheless reaffirmed the propriety of the use of such recitals to show the date of the offense for enhancement purposes.

We find no reversible error. The judgment of the trial court is affirmed.

Opinion approved by the Court.

      . V.T.C.A. Penal Code Sec. 12.42(d).

      . See Glenn v. State, 436 S.W.2d 344 (Tex.Cr.App.1969).


text:
    Larry James STRIBLING, Appellant, v. The STATE of Texas, Appellee.
    No. 52527.
    Court of Criminal Appeals of Texas.
    Oct. 27, 1976.
    Barry P. Helft, Dallas, for appellant.
    Henry Wade, Dist. Atty., John Tatum, Dale G. Markland and Robert C. Hinton, Jr., Asst. Dist. Attys., Dallas, Jim D. Vol-lers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

CORNELIUS, Commissioner.

Appellant was convicted of the offense of credit card abuse. V.T.C.A. Penal Code, Sec. 32.31(b)(1)(A). Punishment was set at five years’ confinement. The sufficiency of the evidence is not challenged.

Appellant executed a waiver of indictment and requested that he be tried upon information. The information alleged that appellant did:

“ . . . then and there, knowingly and intentionally present and use a credit card, to wit a Bank Americard # 4655, 160 118 169, with intent to obtain property, fraudulently and with knowledge that the card has not been issued to him and is not used with the effective consent of the cardholder, Kirk M. McClean . . . ”

The first ground of error contends that the information was fatally defective in that it did not charge the offense with such certainty as (1) to give appellant notice of what he would be called upon to defend against, and (2) to enable him to plead the judgment thereupon in bar of a prosecution for the same offense. The basis of these contentions is that the information failed to allege what property appellant obtained by use of the card and from whom such property was obtained.

Appellant did not move to quash the information, did not object thereto, and made no complaint as to its sufficiency until this appeal. This court has previously held that complaints such as appellant makes here are exceptions as to form and not as to substance, and cannot be raised for the first time on appeal. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974) and cases there cited. Judge Odom, speaking for the court, said in that case:

“We think the observations made there apply with equal logic to an exception for failure to give notice of precisely what the. defendant is charged with and failure to allege sufficient facts to bar a subsequent conviction. Prior to trial any such requirements are for the defendant’s convenience and may be raised, but if he goes to trial without raising any such objection, he may not urge them for the first time thereafter, since it must be presumed he has found the charge sufficient to his own satisfaction. He may not wait to see whether the jury will acquit him, and then, upon an adverse verdict, claim for the first time that he had no notice or that the charge will not bar a subsequent conviction. Only if the defect be of such a degree as to charge no offense against the law, and thereby be void, will the exception to the substance be considered for the first time on appeal . . . ”
(Emphasis supplied)

The offense described in Section 32.-31(b)(1)(A) is the use of a credit card with intent to obtain property fraudulently with knowledge that the card has not been issued to the user and without the effective consent of the cardholder. The information here effectively charged that offense, and cannot be considered void. The description of the property obtained by use of the card and the identity of the person from whom it was obtained affect the certainty of the allegations and notice, and complaints regarding their sufficiency must be raised in the trial court. Arts. 21.21(7) and 27.09(2), V.A.C.C.P.; Johnson v. State, 541 S.W.2d 619 (Tex.Cr.App.1976).

Appellant also complains because the information did not specify in which district court of Dallas County it was presented, but only that it was presented to the “— District Court of Dallas County.” Such a complaint is also one as to form which should have been raised in the trial court. Art. 27.09(1), V.A.C.C.P.

In his last ground of error, appellant contends that the trial court erred in admitting, as a state’s exhibit at the punishment stage of the trial, the penitentiary packet pertaining to a prior conviction of appellant, when the only proof that appellant was the same person as named in the former conviction was by stipulation of counsel. Appellant argues that, under the authority of Ex parte Auten, 458 S.W.2d 466 (Tex.Cr.App.1970), the stipulation was ineffective to bind him. Ex parte Auten is not in point. It held that a stipulation of counsel, not joined in by the defendant personally, could not turn a conviction which was void for constitutional reasons into a valid conviction for enhancement purposes. Here there was a valid prior conviction. The stipulation was only to the identity of appellant as being the same person as the one named in the former conviction. Appellant made no objection to the stipulation and clearly acquiesced in it. The stipulation was effective for the purpose of showing identity. See Genzel v. State, 415 S.W.2d 919 (Tex.Cr.App.1967).

The judgment of the trial court is affirmed.

Opinion approved by the Court.


text:
    Ronald C. SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 52538.
    Court of Criminal Appeals of Texas.
    Oct. 27, 1976.
    Richard E. Banks, Dallas, on appeal only, for appellant.

      Henry Wade, Dist. Atty., Donald H. Fla-nary, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

CORNELIUS, Commissioner.

The conviction was for possession of marihuana, a Class B misdemeanor. The punishment imposed was a fine of $200.00 and thirty days’ confinement in jail, probated for six months.

The principal issue is the legality of the search which produced the contraband. At 12:20 a. m. on December 8,1974, Officer Hughes approached the parking lot of Geno’s Lounge in Dallas. A number of automobiles were parked on the lot. The officer noticed appellant and two other males standing near the opened right front door of an unoccupied automobile. Appellant and one of the other men were facing the parked car. The third man, Dale Guter-muth, was facing Officer Hughes as he approached from the rear in his marked patrol car. As the officer approached, Gu-termuth hurriedly sat down on the front seat of the automobile, with his feet remaining on the outside and his gaze in the direction of the officer. He then leaned to his left toward the dash as if he was putting something under the front seat. Gu-termuth’s movement aroused the officer’s suspicion, so he went over to the men and instructed them to go to the back of the car. The officer then leaned inside the car and looked under the front seat where he found a plastic baggie containing marihuana. Officer Hughes asked who owned the marihuana and appellant answered that it belonged to him. The automobile belonged to Gutermuth. Officer Hughes did not have a search warrant nor did he receive permission to search the automobile. He did not smell any odor of marihuana, did not see any contraband in plain view, and had no reason to suspect that any law violation was taking place except for the movement of Gutermuth which he interpreted as ■ an attempt to hide something. Appellant moved to suppress the evidence on the ground that the warrantless search was not based upon adequate probable cause. The trial court overruled the motion.

Evidence obtained in violation of the constitutional prohibition against unreasonable searches and seizures is inadmissible and must be suppressed upon proper motion. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. Unless conducted as an incident to a lawful arrest, a warrantless search must be justified by probable cause if it is to meet constitutional requirements. The probable cause may be any one of three classes: probable cause to search, probable cause to arrest, and probable cause to investigate. Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972). Probable cause for a search exists where the facts and circumstances known to the officer upon reasonably trustworthy information would lead a man of reasonable caution and prudence to believe that the search will produce evidence pertaining to a crime. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed.2d 1879; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. The mere inarticulate hunch, suspicion or good faith of the officer is insufficient to constitute probable cause. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Brown v. State, supra. As appellant was charged with possession of the contraband, he has standing to contest the validity of the search which produced it. Maldonado v. State, 528 S.W.2d 234 (Tex.Cr.App.1975).

The only circumstance causing Officer Hughes to become suspicious was the movement of Gutermuth. Furtive movements are valid indicia of mens rea and, when coupled with reliable information or other suspicious circumstances relating the suspect to the evidence of crime, may constitute probable cause. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917; Wilson v. State, 511 S.W.2d 531 (Tex.Cr.App.1974). But furtive movements or gestures alone are insufficient for such purpose. Wilson v. State, supra; Brown v. State, supra. The reasons supporting that rule are obvious. An innocent movement can easily be mistaken for a guilty one. The motivation for such movements may run the whole spectrum from the most legitimate to the most heinous. It is because of this danger that the law requires more than a mere furtive gesture to constitute probable cause for a search or arrest. People v. Superior Court of Yolo County, 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449; Wilson v. State, supra.

The record does not show probable cause for the search of the automobile in this case. Likewise, no probable cause existed for an arrest which would give rise to a right of search incident to a lawful arrest. Neither would the facts here justify a search of the unoccupied automobile under the rule permitting a temporary detention for investigative purposes. See Terry v. Ohio, supra; Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974). The cases relied upon by the state are inapposite. They involved temporary detentions for investigative purposes where the incriminating evidence was lawfully obtained as the result of a protective search or was in plain view. See for example, Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, and Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970).

It cannot be said that the error here was harmless beyond a reasonable doubt. Although appellant, in response to the officer’s question, admitted that the marihuana belonged to him, it was stipulated that such declaration was made at a time when appellant was in investigatorial custody and no Miranda warnings had been given. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Smith v. State, 507 S.W.2d 779 (Tex.Cr.App.1974). Furthermore, the exclusionary rule extends as well to the indirect as to the direct products of an illegal search. It requires not only that the tangible evidence obtained from the search not be used in court, but that it shall not be used at all. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319. Appellant’s declaration was no less a “fruit” of the unlawful search than was the marihuana itself. Wong Sun v. United States, supra.

Appellant’s motion to suppress should have been granted. The judgment is reversed and the cause remanded.

Opinion approved by the Court.


author: DAVIS, Commissioner.

text:
    Thomas Edward RICHIE, Appellant, v. The STATE of Texas, Appellee.
    No. 53513.
    Court of Criminal Appeals of Texas.
    Oct. 27, 1976.

      Jim D. Vollers, ■ State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

This is an appeal from an order of the trial court revoking a conditional discharge under Sec. 4.12 of the Controlled Substances Act (Art. 4476-15, Vernon’s Ann. Civ.Stat.).

On April 3,1975, appellant entered a plea of guilty before the court to an information charging him with the unlawful possession of a usable quantity of marihuana of not more than two ounces. Upon appellant’s application for conditional discharge the court placed him on probation for a period of eight months. One of the conditions of appellant’s probation was that he commit no offense against the laws of this State or any other State or the United States. On November 12,1975, the State filed a motion to revoke the conditional discharge, alleging that on or about August 28, 1975, appellant violated his probation by committing the offense of delivering more than one quarter ounce of marihuana. Following a hearing the court revoked appellant’s probation and assessed his punishment at imprisonment in jail for four months and a $500.00 fine. A judgment was entered on February 6, 1975. Appellant then filed a combination motion for new trial and motion in arrest of judgment which was overruled by the court on March 11,1976. Sentence was immediately pronounced and notice of appeal was given.

The record before us contains a transcription of the court reporter’s notes of the hearing on the State’s motion to revoke appellant’s conditional discharge. It also contains a transcription of the court reporter’s notes of the hearing on appellant’s combination motion for new trial and motion in arrest of judgment. However, no brief was filed in appellant’s behalf pursuant to Art. 40.09, Sec. 9, Vernon’s Ann.C.C.P. Nevertheless, we are confronted with a question of whether the jurisdiction of this Court has been properly invoked in the instant case.

Sec. 4.12 of the Controlled Substances Act provides, in pertinent part:

“(a) If any person who has not previously been convicted of an offense under this Act, or, subsequent to the effective date of this Act, under any statute of the United States or of any State relating to a substance that is defined by this act as a controlled substance, is charged with a violation of this subchapter or is found guilty of a violation of this subchapter after trial or on a plea of guilty, the court may, without entering a judgment of guilt and with the consent of the defendant, defer further proceedings and place him on probation on such reasonable conditions as it may require and for such period as the court may prescribe, except that the probationary period may not exceed two years.
“(b) Upon violation of a condition of the probation, the court may enter an adjudication of guilt, pronounce sentence, and punish him accordingly. * * * ”

Reading Subsections (a) and (b) together, it is apparent that no judgment is to be entered at the time a conditional discharge is granted but one must be entered at the time the conditional discharge is revoked. In this regard the conditional discharge procedures under Sec. 4.12, supra, are no different than the misdemeanor probation procedures under Art. 42.13, Vernon’s Ann.C.C.P.

The record does include an instrument styled “judgment”. However, such instrument does not contain all the requisites of Art. 42.01, Vernon’s Ann.C.C.P., wherein a judgment is defined. Although the “judgment” in the instant case recites appellant’s plea of guilty and the trial court’s acceptance of the same, it nowhere states that appellant was adjudged to be guilty of the offense of possession of a usable quantity of not more than two ounces of marihuana as charged in the information. Por this reason we have concluded that the instrument does not comport with the requisites of a judgment as defined in Art. 42.01, supra. See Art. 40.09, Sec. 1, Vernon’s Ann.C.C.P., and Savant v. State, 535 S.W.2d 190 (Tex.Cr.App.1976). Accordingly, the appeal must be dismissed.

If a correct judgment was in fact rendered, but was incorrectly entered on the minutes of the court, such judgment may now be entered nunc pro tunc pursuant to Art. 42.06, Vernon’s Ann.C.C.P., under the procedure outlined in Shaw v. State, 539 S.W.2d 887 (Tex.Cr.App.1976). If a correct judgment was not, in fact, rendered, the same may now be rendered and entered of record in the presence of appellant and his counsel, after notice and hearing. Sentence should thereafter be pronounced within the time provided by law. Compare Ausborne v. State, 499 S.W.2d 179 (Tex.Cr.App.1973), with Ochoa v. State, 536 S.W.2d 233 (Tex.Cr.App.1976). Appellant may then give notice of appeal within the ten days after sentence is pronounced as required by Art. 44.08(c), Vernon’s Ann.C.C.P., if desired.

For the reasons stated, the appeal is dismissed.

Opinion approved by the Court.


author: ODOM, Judge.

text:
    Charles Stephen TIMMS, Appellant, v. The STATE of Texas, Appellee.
    No. 53542.
    Court of Criminal Appeals of Texas.
    Oct. 27, 1976.

      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 an order revoking probation wherein appellant stands convicted of criminal mischief, a third-degree felony. The punishment is imprisonment for four (4) years.

The record before us does not contain a transcription of the court reporter’s notes. No brief was filed in the trial court in appellant’s behalf pursuant to Art. 40.09, Sec. 9, Vernon’s Ann.C.C.P. Nevertheless, we review the validity of the indictment as unassigned error in the interest of justice under Art. 40.09, Sec. 13, Vernon’s Ann.C. C.P.

An indictment which fails to allege an offense was committed by the accused is insufficient to support a conviction. A conviction which is based on an indictment which fails to state an offense against the law is void. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974).

The instant indictment, omitting the formal part, alleges that appellant, on or about November 28, 1974, “did then and there intentionally and knowingly damage tangible property of Sue Payne, the owner, to-wit: an automobile and did thereby cause pecuniary loss in the amount of more than Two Hundred Dollars ($200.00) but less than Ten Thousand Dollars ($10,000) to the said Sue Payne. . . .”

The pertinent part of V.T.C.A., Penal Code, Sec. 28.03, which prohibits criminal mischief, provides:

“(a) A person commits an offense if, without the effective consent of the owner :
(1) he intentionally or knowingly damages . tangible property of the owner; .
(b) An offense under this section is:
* * * * * *
(4) a felony of the third degree if:
(A) the amount of pecuniary loss is $200 or more but less than $10,000; ..” (Emphasis supplied)

The practice commentary which follows Sec. 28.03, supra, states:

“Section 28.03 is, essentially, a restatement of Penal Code art. 1350, the general property damage offense in prior law, with some clarifications and expansions. Article 1350 and most other property damage offenses in prior law proscribed destructive conduct only if it was committed without the owner’s consent. This section proscribes conduct committed without the owner’s ‘effective consent,’ a concept that clarifies the type of consent required by negating consent given because of coercion or deception, given by one whom the actor knows lacks authority or capacity, or given for the detection of the commission of an offense. See Section 1.07 (code definitions). As in pri- or law, the actor is not guilty of criminal mischief if he has the owner’s effective consent, although both might be guilty as parties to some other offense, such as destroying secured property with intent to defraud creditors, Section 32.33.”

We agree with the authors of the practice commentary that the intentional or knowing damaging or destruction of the tangible property of another does not constitute an offense if done with the consent of the owner of the property. Because the indictment, which purports to allege the offense of criminal mischief, does not allege that the offense was committed without the effective consent of the owner, an essential element of that offense, it is fundamentally defective. See and compare Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975).

The judgment is reversed and the prosecution ordered dismissed.


author: OSBORN, Justice. WARD, Justice

text:
    John BERNARD, d/b/a Bernard Welding Service, and Thomas Douglas Baker, Appellants, v. GULF INSURANCE COMPANY, Appellee.
    No. 6514.
    Court of Civil Appeals of Texas, El Paso.
    Sept. 15, 1976.
    Rehearing Denied Oct. 6, 1976.
    Warren Burnett Associated, Richard J. Clarkson, Odessa, for appellants.
    Rassman, Gunter & Boldrick, Emil C. Rassman, John E. Gunter, Midland, for ap-pellee.
   OPINION

OSBORN, Justice.

This case involves the duty to defend under a General-Automobile Liability Policy and the effect of a prior declaratory judgment construing such policy and determining the duty to defend and pay a claim under such policy. Having concluded that the prior judgment is not res judicata of the issues in the pending case, we reverse and remand the case to the trial Court.

In March, 1972, Gulf Insurance Company issued an insurance policy to John Bernard, d/b/a Bernard Welding Service, for a period of one year which contained comprehensive general liability coverage, but “completed operations” hazards and “products” hazards were excluded. In November, 1972, Mr. Bernard performed some welding on the substructure of a drilling rig for Cactus Drilling Company, ánd also welded some flanges onto three pieces of drill pipe. A few days later, Thomas Baker, an employee of Cactus, was seriously injured when a weld on the drill pipe broke. Mr. Baker sued Mr. Bernard for damages in Cause No. B-40,487 in Ector County alleging negligence in his welding work for Cactus Drilling Company. Gulf refused to defend Bernard and filed suit in Cause No. B-40,659 for a declaratory judgment as to its duties under the insurance policy issued to Bernard. In the deposition of Bernard taken in that case, he testified that he had completed the welding job on the drill pipe and left the rig site prior to the accident.

In the declaratory judgment case, the trial Court entered a summary judgment which provided:

“ * * * Gulf Insurance Company, has no duty or obligation to defend John Bernard, d/b/a Bernard’s Welding Service, pay any part of any adverse judgment rendered against John Bernard, d/b/a Bernard’s Welding Service, or perform any other legal obligation to defendant John Bernard, d/b/a Bernard’s Welding Service, with respect to all claims, demands and causes of action made and asserted by Thomas Douglas Baker against John Bernard, d/b/a Bernard’s Welding Service, in Cause No. B-40,487 filed in the 161st Judicial District Court of Ector County, Texas, styled Thomas Douglas Baker v. John Bernard, d/b/a Bernard Welding Service, and any and all other claims, demands and causes of action growing out of, connected with, or incidental to Thomas Douglas Baker’s accidental injury sustained by him on November 7, 1972 in Ector County, Texas while working as an employee of Cactus Drilling Company.”

No appeal was taken from that judgment and it became final thirty days after being entered on February 11, 1974.

In October, 1974, Baker filed an amended petition in Cause No. B-40,487 in which he alleged that the defendant had “failed to complete the repair work” and set forth certain acts of negligence as a basis for recovery of damages. Gulf then filed Cause No. B-43,617 seeking a declaratory judgment as to its duty to defend such amended pleading, and alleged the prior judgment was res judicata as to the issues involved. After Gulf filed a motion for summary judgment, an affidavit was filed by Bernard in which he said:

“I was hired by Cactus Drilling to repair the rig on which Thomas Douglas Baker was injured on or about the 7th day of November, 1972. I was hired by Cactus Drilling to repair a drill collar, piping and parts of the substructure of the rig on which Thomas Douglas Baker was injured. I stopped my repair work on the rig a day or two prior to the injuries sustained by Thomas Douglas Baker. I stopped my repair work on the rig because I was told to do so although I did, not feel that I had completed the proper amount of welding of the parts of the rig that I had been hired to repair. I did not feel that I had applied enough weld so that the parts of the rig which I was repairing could be used for the purposes for which they would normally be used. I stopped my welding before I felt in my own mind I had completed the job which I was hired to do.”

In November, 1975, the trial Court granted the motion for summary judgment in Cause No. B — 43,617 and held that its prior judgment entered on February 11, 1974, in Cause No. B-40,659, was res judicata as to Gulf’s duties, obligations and liabilities under its policy issued to Bernard. It again ordered that Gulf had no duty to defend Bernard or pay any part of any adverse judgment rendered against him with respect to the claims, demands and causes of action of Thomas Baker in Cause No. B-40,-487. This appeal is from that judgment.

In determining the liability of an insurer to defend, proof of the allegations are not material and the issue is determined from the pleadings, without regard to the validity of those contentions. Argonaut Southwest Insurance Company v. Maupin, 500 S.W.2d 633 (Tex.1973); Heyden Newport Chemical Corporation v. Southern General Insurance Company, 387 S.W.2d 22 (Tex.1965); Fort Worth Lloyds v. Garza, 527 S.W.2d 195 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.); and Amundsen v. Great Central Insurance Company, 451 S.W.2d 277 (Tex.Civ.App.—El Paso 1970, writ ref’d n. r. e.).

Based upon the pleadings as they exist at any given time, a declaratory judgment may be entered with regard to a duty to defend under, the allegations of such pleadings. Ranger Insurance Company v. Mustang Aviation, Inc., 533 S.W.2d 903 (Tex.Civ.App.—Eastland 1976, writ ref’d n. r. e.). Obviously, such a judgment would be res judicata only as to the pleadings as they existed at the time of the judgment, but such judgment would not be res judicata as to any amended pleadings which might substantially change the nature of the cause of action alleged or assert a new or different cause of action and thereby change the basic nature of the suit. Mobile County v. Kimball, 102 U.S. 691, 26 L.Ed. 238 (1881); State v. Standard, 414 S.W.2d 148 (Tex.1967); and Palmer v. Bizzell, 229 S.W. 971 (Tex.Civ.App.—Galveston 1921, no writ). In this case the original pleading asserted a claim based upon “completed operations,” which was not covered by the Gulf policy and the trial Court properly so declared in the first declaratory judgment. The amended pleading asserted that there were no completed operations; thus, the policy exclusion did not apply to the amended pleadings and the first declaratory judgment could not be res judicata as to the new assertions presented in the amended pleadings. As noted in Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972), a motion for summary judgment on the pleadings partakes of the office of a general demurrer. Certainly where the pleadings were amended to meet an exception, the old general demurrer or a special exception would fail. So also a claim of res judicata based upon a summary judgment must fail where the pleadings have been amended.

Nevertheless, the fact remains that the first declaratory judgment did decree that Gulf had no duty to pay any part of any adverse judgment rendered against Bernard in Cause No. B-40,487, and no obligation with respect to “any and all other claims, demands and causes of action growing out of, connected with, or incidental to Thomas Douglas Baker’s accidental injury * * *.” That judgment is final, no appeal having been taken from the initial declaratory judgment. If that part of the judgment be valid, it would dispose of Gulf’s primary obligation under its policy to pay any judgment entered against Bernard and could be dispositive of the primary issues even under the amended pleading in the initial suit.

We conclude that insofar as the first declaratory judgment purported to determine a duty to pay any final money judgment or otherwise determine liability for “any other claims, demands and causes of action,” it was beyond the jurisdiction of the District Court, was a void judgment, and could not be res judicata of those issues. In Firemen’s Insurance Company of Newark, New Jersey v. Burch, 442 S.W.2d 331 (Tex.1968), the Court in reviewing a declaratory judgment, which determined a coverage question and duty to pay, said:

“The question of the insurance company’s duty to defend presented a justicia-ble issue. No complaint is made of the trial court’s disposition of this issue and that portion of the trial court’s judgment relating thereto will not be disturbed. However, that portion of the decree which attempts to declare the liability of the insurance company upon any judgment which may hereafter be rendered in the ease of Burch v. Buttler is purely advisory in nature and beyond the power and jurisdiction of the district court to render. Accordingly, such portion of the trial court’s judgment is vacated.”

In both Ranger Insurance Company v. Mustang Aviation, Inc., supra, and Fort Worth Lloyds v. Garza, supra, the Courts concluded that an issue with regard to the duty to pay could only be determined after a money judgment was obtained and any declaratory judgment prior to that time would be a purely advisory opinion which a Court would have no jurisdiction to render. Obviously, the same rule as to a determination of a duty to pay would also apply as to a determination of “any and all other claims, demands and causes of action growing out of, connected with, or incidental to Thomas Douglas Baker’s accidental injury * * * ”, if such claims and causes of action had never been asserted in a pleading at the time of the first declaratory judgment.

Accordingly, we conclude that the first declaratory judgment was not res judicata as to the issues raised by the amended pleadings filed after the entry of that judgment, and the provisions of the first declaratory judgment with regard to the duty to pay and the obligation as to other claims and causes of action was beyond the jurisdiction of the Court and a void judgment, and therefore not res judicata as to those issues. The judgment of the trial Court is reversed and the case is remanded to the trial Court.

WARD, Justice

(concurring).

I concur in the opinion written in this case, but would like to point out that we are holding that a successful collateral attack can be made on the prior judgment of the District Court where in the prior case it had jurisdiction of the persons of both John Bernard and Thomas Douglas Baker, it had jurisdiction of the subject matter of the suit and it had full capacity to act as a Court. Even with this, we are holding that the District Court had no power and no jurisdiction to enter the judgment in Cause No. B-40,659 where it attempted to adjudicate as to new causes of action that had not then been alleged and as to the payment of any adverse judgment that might be rendered against Bernard in Cause No. B-40,487. We are bound by the clear language used by the Supreme Court in Firemen’s Insurance Company of Newark, New Jersey v. Burch, supra.


author: McCLOUD, Chief Justice.

text:
    John Thomas GRIFFIN, Appellant, v. Dr. John R. PHILLIPS, Appellee.
    No. 4899.
    Court of Civil Appeals of Texas, Eastland.
    Sept. 16, 1976.
    Rehearing Denied Nov. 4, 1976.

      John H. Holloway, Houston, for appellant.
    Howard S. Hoover, Hoover, Cox & Miller, W. N. Arnold, Jr., Fulbright & Jaworski, Houston, for appellee.
   McCLOUD, Chief Justice.

This is a medical malpractice case involving fraudulent misrepresentations of a doctor regarding the necessity for and beneficial effects of an operation.

Plaintiff, John Thomas Griffin, sued defendant, Dr. John R. Phillips, alleging damages resulting from defendant’s negligence and fraudulent misrepresentations.

The jury found that defendant was negligent in performing the surgery as a treatment or cure for emphysema, and such negligence was a proximate cause of plaintiff’s damages. It also found that defendant made fraudulent misrepresentations to plaintiff regarding the proposed surgery, and assessed actual damages of $2,900 together with exemplary damages of $25,000. Judgment was entered for plaintiff for the actual damages only. Plaintiff, John Thomas Griffin, has appealed contending the court erred in not awarding the $25,000 exemplary damages. We affirm.

The jury found that Dr. Phillips represented several specific facts in connection with the proposed surgery; that the “representation or representations” were not true in whole or in part; that plaintiff relied upon the truth of such “representation” in agreeing to the surgery; that such “representation” was a material inducement to plaintiff to have the surgery; that plaintiff sustained damage as a proximate cause of such “representation”; and, that one or more of the statements made by defendant was a misrepresentation of facts. The term “misrepresentation” was defined as a “falsehood or untruth with the intent and purpose of deceit, whether the speaker had actual knowledge of the falsity or ignorance of the truth of such representation.” (Emphasis added)

This appeal is principally concerned with the effect of the jury’s answer to Special Issue 10, which was as follows:

“Do you find from a preponderance of the evidence that when Dr. Phillips made the representation, he knew it was not true or he made it recklessly without any affirmative knowledge of its truth and as a positive assertion of fact with intention Mr. Griffin rely upon such material representation?
Answer ‘We do’ or ‘We do not’.
Answer: We do not.”

The jury also failed to find in Special Issue 18 that defendant’s conduct in performing the surgery constituted wanton conduct. The jury was instructed that “wanton conduct” is meant that defendant “committed the act regardless of the rights of Mr. Griffin or under circumstances as would indicate a wicked or mischievous intent”.

Plaintiff first argues the court erred in not awarding exemplary damages because it is immaterial whether the defendant knew the statements were untrue. We disagree.

The elements of fraud are summarized in 25 Tex.Jur.2d Fraud and Deceit, § 13 as follows:

“ . It is said that to state a cause of action for fraud that is based on false representations, the plaintiff is required to show that the defendant made or was connected with the making of the representation; that the representation was as to a material fact; that the representation was false at the time.it was made; that the representation was made with intent to induce the plaintiff to do or refrain from doing some act; that the representation was relied on by the plaintiff — in other words, that the plaintiff believed it to be true and was induced thereby to act or refrain from acting; and that the plaintiff thereby suffered damage or injury . . . ”

Knowledge that a statement is false is not an essential element of fraud. Graves v. Hartford Accident & Indemnity Co., 138 Tex. 589, 161 S.W.2d 464 (1942); Allison v. Blewett, 348 S.W.2d 182 (Tex.Civ.App.—Austin 1961, writ ref. n.r.e.). However, knowledge that a representation is untrue is required in order to recover exemplary damages. The court in Dennis v. Dial Finance & Thrift Company, 401 S.W.2d 803 (Tex.1966) said:

“A person who intentionally misrepresents facts for the purpose of injuring another is guilty of wanton and malicious conduct. The allowance of exemplary damages in cases of wilful and deliberate fraud does not, therefore, do violence to the rule quoted above . . . ”

The applicable rules were stated in Baker v. Moody, 219 F.2d 368 (5th Cir. 1955) as follows:

“In an action for actual damages, it is not necessary that the maker know his representations are false, if they actually be such, but his liability is restricted to the monetary loss. On the other hand, to recover exemplary damages, representations must not only be false but willfully made, with full knowledge of their falsity and the intent of the maker that the other party should act thereon, and that the latter was thereby injured. In a suit for both actual and exemplary damages the plaintiff may recover either or both, dependent upon the circumstances proven as a whole and the judgment of the jury

In Success Motivation Institute, Inc. v. Lawlis, 503 S.W.2d 864 (Tex.Civ.App.—Houston (1st Dist.) 1973, writ ref. n.r.e.), the court on motion for rehearing, denied exemplary damages and stated:

“. . .no finding that the defendant or its agents knew the representations to be untrue is necessary to support the judgment for actual damages. Such a finding is necessary to establish that the fraud was intentionally committed for the purpose of injuring the plaintiffs. Without such a finding exemplary damages cannot be awarded. Dennis v. Dial Finance & Thrift Company, 401 S.W.2d 803 (Tex.1966) ...”

Plaintiff next argues the court erred in disregarding Special Issue 23, the un-predicated exemplary damage issue, because defendant’s motion for judgment for actual damages only, was not a motion to disregard the issue, as required under Rule 301, Texas Rules of Civil Procedure. In view of the jury’s answer to Special Issue 10, the exemplary damage issue became an immaterial issue, and the court properly disregarded the issue without requiring defendant to comply with the procedure under Rule 301. 4 McDonald, Texas Civil Practice, Judgments, § 17.31 (1971); Smith v. Whitehead, 363 S.W.2d 369 (Tex.Civ.App.—Houston 1962, no writ); Wilkinson v. Southern Farm Supply Association, 409 S.W.2d 435 (Tex.Civ.App.—Amarillo 1966, writ ref. n.r.e.).

Plaintiff asserts the court erred in denying his motion to disregard the negative jury finding to Special Issue 10, and in refusing to enter judgment notwithstanding the verdict for the exemplary damages found by the jury, because the uneontro-verted evidence established, as a matter of law, that defendant knew the representations were not true, or he made them recklessly without affirmative knowledge of the truth and with intention that plaintiff rely upon such representations in agreeing to the proposed surgery. Alternatively, plaintiff contends the negative finding to Special Issue 10 is so against the overwhelming great weight and preponderance of the evidence as to be manifestly wrong and unjust.

In 1966, defendant examined plaintiff and informed him that he had emphysema. Thereafter, defendant performed glomecto-my surgery on plaintiff. The procedure involved removing the carotid body and related nerves from plaintiff’s neck. Plaintiff contends the surgery was unnecessary and an improper treatment for emphysema.

In 1960, defendant became aware of a newly developed emphysema carotid body surgical procedure developed by a Dr. Na-kayama in Japan. Dr. Nakayama lectured extensively and wrote numerous articles on the subject. Defendant became interested in the surgical procedure and discussed the operation with Dr. Nakayama and Dr. Ov-erhalt, a “respected physician and surgeon,” from Boston, Massachusetts, who had adopted the technique from the Japanese doctor. Defendant began performing the surgery in the Houston area and keeping records relative to the success or failure of the technique. In 1964, defendant presented his findings on carotid body surgery to the American Medical Association meeting in San Francisco, California. He also wrote medical papers, published in various medical journals, discussing the beneficial effects of carotid body surgery. There are only about five doctors in the United States who have performed as many as 1,000 of these operations. At the time of defendant’s retirement in 1967, he had performed approximately 2,100 carotid body operations. He testified that the surgery took about 30 minutes and he normally charged $500 for each operation.

Dr. Thomas Petty, Associate Professor at the University of Colorado Medical Center, a specialist in pulmonary diseases, testified that the accepted medical treatment for emphysema is use of a combination of drugs, application of physical medical techniques to improve breathing, and avoidance of irritants. He stated that the removal of the carotid body is not an accepted procedure for either the cure or treatment of emphysema because the carotid body is an important regulatory mechanism, and the procedure is potentially harmful. He stated the procedure had been performed without much scientific rationale, tried by a number of physicians worldwide, but abandoned after found to be ineffectual.

Dr. George Alexander, a former president of the Harris County Medical Society, testified that in 1966 the accepted medical treatment for patients suffering from emphysema was to “make them quit smoking”, avoid irritants to the lungs, and take certain drugs. On cross-examination, he stated he had no opinion on whether the carotid body operation was proper or improper.

Dr. Thomas Clark, a psychiatrist, stated that he could think of no neurological value resulting from the removal of the carotid body. He thought it would be a psychic rather than physical experience.

The surgery is obviously a controversial procedure. Defendant testified he told plaintiff emphysema was an incurable disease. He stated that by “interrupting the nerve pathways, we would lessen the irritability and the spasm, and, hopefully the cough to the bronchial tubes.” Defendant testified he considered himself a pioneer in this type of surgery.

The jury found that defendant made certain misrepresentations concerning the need for and beneficial effects of the surgery. However, the jury could have believed from the evidence that defendant believed the representations made to plaintiff. The evidence does not conclusively establish an intentional, knowing, deliberate and wilful misrepresentation by defendant. Also, we have considered the entire record and hold the jury’s finding to Special Issue 10 is not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Plaintiff further argues that the evidence conclusively establishes that defendant was grossly negligent in performing the surgery. We disagree. Gross negligence was defined as:

“. . . that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it.”

The evidence does not conclusively establish gross negligence.

We also hold, after reviewing the entire record, that the jury’s failure to find defendant grossly negligent in performing the surgery was not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We have considered all points of error and all are overruled.

The judgment is affirmed.

      . See Hood v. Phillips, 537 S.W.2d 291 (Tex.Civ.App.—Beaumont 1976, writ granted) for discussion of rule conerning unnecessary surgery.