text:
    Johnny Lee HAZEL, Appellant, v. The STATE of Texas, Appellee.
    No. 51282.
    Court of Criminal Appeals of Texas.
    March 31, 1976.

      Marvin O. Teague, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and Sara Bullock, Asst. Dist. Attys., Houston, 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 the unlawful possession of a handgun under the provisions of V.T.C.A. Penal Code, Sec. 46.02.

The appellant was originally indicted for the third degree felony of intentionally and knowingly possessing a pistol away from premises where he lived after being convicted of a felony involving an act of violence and threatened violence — robbery. See V.T.C.A. Penal Code, Sec. 46.05. Upon trial before the court appellant was found guilty of “the misdemeanor offense of unlawfully carrying a pistol” and assessed a punishment of eight months in the county jail.

Although no complaint is made of the same, we must decide at the outset before reaching the merits of appellant’s contentions whether unlawfully carrying a weapon, to wit: a handgun, a misdemeanor under the provisions of V.T.C.A. Penal Code, Sec. 46.02, is a lesser included offense of unlawful possession of a firearm by a felon under the provisions of V.T.C.A. Penal Code, Sec. 46.05. If it is not, we do not reach appellant’s grounds of error.

Article 37.09, Vernon’s Ann.C.C.P., provides:

“An offense is a lesser included offense if:
“(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
“(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
“(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
“(4) it consists of an attempt to commit the offense charged or an otherwise included offense.”

We explained in Day v. State, 532 S.W.2d 302, 310 (Tex.Cr.App.1976) (Opinion on Rehearing), that Article 37.09, supra, defined lesser included offenses in terms of the relationship between the lesser offense and the “offense charged.” Whether one offense bears such a relationship to the offense charged must be a case by case determination, the decision being based on whether the lesser offense could be proved by the same facts as necessary to establish the offense charged. Day v. State, supra.

The elements of the “offense charged” in the present case are appellant (1) intentionally and knowingly (2) possessed away from the premises where he lived (3) a firearm, namely, a pistol (4) after he had previously been convicted of a felony involving violence or threatened violence —robbery. See V.T.C.A. Penal Code, Sec. 46.05. The elements of the offense of unlawful carrying of weapons, V.T.C.A. Penal Code, Sec. 46.02 are (1) intentionally, knowingly or recklessly (2) carrying on or about the person (3) a handgun, illegal knife, or club. It is true that Section 46.05, supra, does not by its own terms include the element of a culpable mental state, but under the provisions of V.T.C.A. Penal Code, Sec. 6.02, these mental states would be inferred. Moreover, the elements of the “offense charged” must be looked to on a case by case basis and not just the language of the statute. See Day v. State, supra.

Under Section 46.02, supra, the weapon must be carried “on or about the person,” while under Section 46.05, supra, the requirement is stated merely as “possession.” In Courtney v. State, 424 S.W.2d 440 (Tex.Cr.App.1968), this court had occasion to determine what the phrase “on or about the person” meant in the context of the former unlawfully carrying statute, Article 483, Texas Penal Code (1925). The language of Wagner v. State, 80 Tex.Cr.R. 66, 188 S.W. 1001 (1916) was quoted:

“. . . The Legislature must have meant something when it used the words, ‘or about the person,’ and, on principle, using the word ‘about’ in its ordinary meaning, taking into consideration the context and subject-matter relative to which it is employed, the word, not being specially defined, must, as we believe, be held to mean, within the pistol statute, near by, close at hand, convenient of access, and within such distance of the party so having it as that such party could, without materially changing his position, get his hand on it; . . . .”

Thus the proof that appellant’s pistol was on the floorboard of the automobile establishes both that he carried it “on or about his person” and that he “possessed” it. Curry v. State, 465 S.W.2d 154 (Tex.Cr.App.1971); Coleman v. State, 500 S.W.2d 472 (Tex.Cr.App.1973); Courtney v. State, supra. Since the two are provable by the same facts, the provisions of Article 37.09, Vernon’s Ann.C.C.P., are satisfied.

The same reasoning applies to the last remaining distinction between the two offenses. The offense charged, under V.T. C.A. Penal Code, Sec. 46.05, involved possession of a “firearm, namely, a pistol,” while V.T.C.A. Penal Code, Sec. 46.02, speaks of possession of “a handgun, illegal knife, or club.” The definition of “handgun” in V.T. C.A. Penal Code, Sec. 46.01, is “any firearm that is designed, made, or adapted to be fired with one hand.” (Emphasis Supplied) Again, it is evident that the lesser offense and the offense charged are capable of proof by the same fact that appellant had in his automobile a .38 caliber revolver.

Article 37.09(1), Vernon’s Ann.C. C.P., provides that an offense is a lesser included offense if “it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” The offense charged was (1) intentionally and knowingly having (2) possession away from the premises in which appellant lived (3) a firearm, (4) said appellant having been previously convicted of a felony involving violence. The offense for which appellant was convicted was (1) intentionally and knowingly (2) carrying on or about his person (3) a handgun. The additional element- of having previously been convicted of a felony involving violence is thus the only difference between the offense charged and the lesser offense. Article 37.09(1) therefore is applicable, and we hold that in the present case appellant was properly convicted of a lesser included offense. See Raven v. State, 533 S.W.2d 773 (Tex.Cr.App.1976).

Appellant first complains the evidence is insufficient, as a matter of law, to show that he intentionally and knowingly carried on or about his person a pistol.

The record shows that Houston City Police officers V. B. Daniels and his partner, Sgt. Pohlman, were patrolling in a police vehicle on Lyons Avenue in Houston on January 12, 1974, at approximately 10:45 p. m. when Daniels observed the appellant sitting in a parked car in the 2700 block of Lyons Avenue in front of a liquor store, lounge and hotel. It appeared that appellant’s “head was bobbing and weaving,” and based on Daniels’ experience as a police officer for four years, Daniels formed the opinion the appellant was intoxicated. Daniels approached the vehicle in which appellant was seated alone. The car window was down and the odor of alcohol about appellant’s person was apparent to the officer. Daniels shined a flashlight into the car and observed appellant’s eyes were half closed and bloodshot. Appellant was asked to step out of the car. When the car door was opened and the dome light came on, a pistol was seen lying at appellant’s feet only partially pushed under the front seat. The pistol was lying directly under appellant’s feet. The pistol was recovered and shown to be a fully loaded .38 caliber revolver.

' While there was evidence that appellant had been previously convicted of robbery, the court, for reasons not reflected, chose not to consider the same and found appellant guilty only of the lesser offense.

It is appellant’s contention that the evidence is insufficient to show that he intentionally and knowingly carried on or about his person a handgun. He contends that under the former statute, Article 483, Vernon’s Ann.P.C., 1925 (Unlawfully Carrying Arms), the intention of the accused was immaterial as the statute did not make intent an element of the offense. Farris v. State, 64 Tex.Cr.R. 524,144 S.W. 249 (1912). See also Lewis v. State, 84 Tex.Cr.R. 499, 208 S.W. 516 (1919); Smith v. State, 104 Tex.Cr.R. 100, 283 S.W. 508 (1926). Appellant urges that this is no longer true under the new Penal Code of 1974.

V.T.C.A. Penal Code, Sec. 6.02 (Requirement of Culpability), reads as follows:

“(a) Except as provided in Subsection (b) of this section, a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.
“(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.
“(c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b) of this section, intent, knowledge, or recklessness suffices to establish criminal responsibility.
“(d) Culpable mental states are classified according to relative degrees, from highest to lowest, as follows:
“(1) intentional;
“(2) knowing;
“(3) reckless;
“(4) criminal negligence.
“(e) Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged.”

V.T.C.A. Penal Code, Sec. 46.02 (Unlawful Carrying Weapons), reads as follows:

“(a) A person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club.
“(b) Except as provided in Subsection (c), an offense under this section is a Class A misdemeanor.
“(c) An offense under this section is a felony of the third degree if it occurs on any premises licensed or issued a permit by this state for the sale or service of alcoholic beverages.”

It is clear from a reading of the definition of offense in said Section 46.02, supra, that it does not itself prescribe a culpable mental state, but one is nevertheless required by said Section 6.02, supra, unless the definition “plainly dispenses with any mental element.” The definition in said Section 46.02, supra, does not “plainly dispense[s] with any mental element.” See and cf. Braxton v. State, 528 S.W.2d 844 (Tex.Cr.App.1975).

Thus we must consider whether the evidence is sufficient to show that the appellant intentionally, knowingly or recklessly carried on or about his person a handgun.

Appellant likens the said Section 46.02, supra, with its requirement that the handgun be carried “knowingly and intentionally” with the same requirement found expressly stated in Article 4476-15, Sec. 4.05(a) [Texas Controlled Substances Act], dealing with the possession of marihuana and says the marihuana cases decided by this court are helpful in passing on the instant case for the same standards apply.

Appellant relies upon Woolridge v. State, 514 S.W.2d 257 (Tex.Cr.App.1974), wherein this court wrote:

“Since the accused is charged with the unlawful possession of a narcotic the State must prove that he exercised care, control and management over the object and that he knew the object he possessed was contraband. E. g., Payne v. State, Tex.Cr.App., 480 S.W.2d 732; Ramos v. State, Tex.Cr.App., 478 S.W.2d 102; Rodriguez v. State, Tex.Cr.App., 372 S.W.2d 541. The mere presence of the accused at a place where narcotics are found does not of itself show possession. E. g., Harvey v. State, Tex.Cr.App., 487 S.W.2d 75; Valdez v. State, Tex.Cr.App., 481 S.W.2d 904. See United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210. Additional independent facts and circumstances must be established to prove the accused’s knowledge and control of the marihuana. E. g., Barnes v. State, Tex.Cr.App., 504 S.W.2d 450; Wright v. State, Tex.Cr.App., 500 S.W.2d 170; Valdez v. State, supra; Harvey v. State, supra; see, 92 A.L.R. 810.
“In this case, the record does not contain evidence linking the appellant to the marihuana found, in the car he had borrowed. The marihuana was not discovered in plain view. On the contrary, it required three inspections of the vehicle before the police discovered the contraband. No odor of marihuana was present, nor were seeds, papers, or particles found on the appellant. Cf. Powell v. State, Tex.Cr.App., 502 S.W.2d 705. Upon his arrest, appellant made no ‘furtive’ gestures. In fact, one of the defendants requested that the police return to the vehicle after it had been searched to retrieve a watch. The evidence does not show any connection between the appellant and the glove compartment area of the vehicle.
“Regardless of what other crimes the appellant may have committed, we are only concerned here with the sufficiency of the evidence to support his conviction for possession of marihuana and find it to be insufficient.”

Appellant urges that mere presence at a place or car where a pistol is found does not, standing alone, justify a finding that a person is in possession of a handgun or that it was “on or about his person,” citing Kinkle v. State, 474 S.W.2d 704 (Tex.Cr.App. 1972). He also argues that if exclusive possession is not shown the State must affirmatively link the accused to the handgun, citing Smith v. State, 514 S.W.2d 749 (Tex.Cr.App.1974), and cases cited therein.

In the instant case, unlike the marihuana in Woolridge, supra, the handgun was seen in open view when the dome light came on. Further, appellant was the only person in the car, the handgun was directly under his feet and we do not appear to be confronted with a situation where the accused is not in exclusive possession of the car. While the evidence was not developed as well as it might have been, we conclude that evidence, direct and circumstantial, is sufficient to show the appellant was guilty of intentionally and knowingly carrying on or about his person a handgun.

Appellant’s contention is overruled.

In fifteen grounds of error appellant presents the single complaint that the pistol in question was obtained as a result of an illegal search and should not have been admitted into evidence.

The evidence reflects that appellant was observed at night in a parked car in front of a lounge in the 2700 block of Lyons Avenue in the city of Houston in an apparent state of intoxication. Public intoxication is made an offense by virtue of Y.T. C.A. Penal Code, Sec. 42.08. The appearance of appellant made it reasonable for the officers to investigate further to decide if he was indeed intoxicated. In Wood v. State, 515 S.W.2d 300, 305-306 (Tex.Cr.App. 1974), this court stated:

“The Fourth Amendment has been held not to require a policeman who lacks a precise level of information necessary for probable cause to simply shrug his shoulders and allow crime to occur or a criminal to escape. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Circumstances short of probable cause for arrest may justify temporary detention for investigation and questioning. . .

Upon approaching the automobile, Officer Daniels observed the odor of alcohol about appellant’s person through the open window. By use of a flashlight it was observed that appellant’s eyes were half closed and bloodshot. Asking appellant, under these circumstances, to step out of the car was the next reasonable step in the investigation. See Aldridge v. State, 482 S.W.2d 171 (Tex.Cr.App.1972). When he did get out, the dome light, which came on when the door was opened, revealed in plain view the pistol in question.

We hold that the investigation in the present case was reasonable and the discovery of the pistol in plain view was not the fruit of an illegal search and seizure. The grounds of error are overruled.

The judgment is affirmed.

      . The fragmentation of grounds of error is as undesirable as a multifarious ground of error.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    Charles Edward HEARNE, Appellant, v. The STATE of Texas, Appellee.
    No. 51918.
    Court of Criminal Appeals of Texas.
    March 31, 1976.

      See also Tex.Cr.App., 534 S.W.2d 707.
    Robert M. Jones, Dallas, for appellant.
    Henry Wade, Dist. Atty., Maridell Tem-pleton, Les Eubanks and Robert Prather, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for murder. After the jury returned a verdict of guilty, punishment was assessed by the court at twenty-five years.

Appellant and co-defendant Billy Joe Evans, though indicted separately, were tried jointly in one trial.

The indictment alleges the offense occurred on or about August 22, 1971. A conviction resulting from the first trial was reversed by this Court. This appeal stems from the conviction at the second trial in December, 1973.

At the outset, appellant contends that “the trial court erred in admitting appellant’s statement over objection that appellant had not voluntarily waived his rights.”

The record reflects that the trial court held a hearing out of the presence of the jury. At the conclusion of the hearing, the court entered findings that the confession of appellant was freely and voluntarily made and was admissible. In addition, the court instructed the jury in its charge relative to the law concerning the admissibility of confessions in accordance with Art. 38.22, V.A.C.C.P. Among other attacks made upon the admissibility of the confession, appellant urges that he did not waive his right to remain silent, and that after the officer who took the confession was advised that appellant did not want to talk to him, the officer persisted in questioning him until he obtained a confession.

The testimony of Officer Angelí reflects that appellant was brought to the interview room “between 11:30 and 11:45 in the p. m.” on August 25, 1971, a time when a magistrate was not available.

After‘testifying to the warning he gave appellant and stating that appellant “did not indicate that he wanted a lawyer at that time,” the record reflects that Angelí testified at the hearing outside the presence of the jury as follows:

“Q. Did you then proceed to ask Hearne any questions concerning the murder of Iris Zepther Carter?
“A. Yes, sir, I did.
“Q. How long did you question him?
“A. Fifteen to twenty minutes at the most.
“Q. I’ll ask you whether or not at some point in time during this fifteen or twenty minute conversation you had with him, he did admit he took part in the murder of Iris Zepther Carter?
“A. He did.
“Q. Did he agree to tell you his part in it?
“A. Yes, sir.”

The officer further testified that the confession was reduced to writing, that the same was read to appellant, including the warnings appearing thereon, and that the witness to the confession, Robert W. Fink-lea, III, asked appellant if it were “true and voluntary” and appellant said, “Yes.”

On cross-examination (at the hearing outside the presence of the jury) the record reflects the following testimony of Officer Angelí:

“Q. Now, when you first began talking to Mr. Hearne, he told you he didn’t want to talk to you, didn’t he?
“A. Yes, sir.
“Q. You did then persuade him to change his mind?
“A. Yes.
* * * * * *
“Q. You persuaded him bit by bit to change his mind and talk to you?
“A. Yes, sir.”

The record reflects that the officer testified as follows in the presence of the jury:

“Q. [Appellant’s counsel]: He [appellant] said he didn’t want to talk to you at first and you had to talk to him thirty minutes or so before he was ready to talk to you?
“A. Yes, sir.
At the top of the voluntary statement it says ‘I have the right to remain silent and that I do not have to answer any questions or make any statements at all,’ is it your interpretation of that that if the Defendant does not want to talk to you, that you can continue until you can persuade him to talk to you? “Q.
“A. Yes, sir.
“Q. You did persuade him to talk to you, didn’t you despite the fact that he didn’t want to?
“A. Yes.
******
“Q. And after he was duly warned, he didn’t want to talk to you, you had to talk to him thirty minutes after that?
“A. Yes, sir.”

Appellant did not testify at the Jackson v. Denno hearing or at the trial on its merits.

The Supreme Court of the United States has recently addressed the issue here presented in Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

The Supreme Court noted that resolution of the question “turns almost entirely on the interpretation of a single passage” in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, which reads:

“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.” 384 U.S., at 473-474, 86 S.Ct., at 1627.

In construing the foregoing passage from Miranda, the United States Supreme Court in Michigan v. Mosley, supra, said:

“This passage states that ‘the interrogation must cease’ when the person in custody indicates that ‘he wishes to remain silent.’ It does not state under what circumstances, if any, a resumption of questioning is permissible. The passage could be literally read to mean that a person who has invoked his ‘right to silence’ can never again be subjected to custodial interrogation by any police officer at any time or place on any subject. Another possible construction of the passage would characterize ‘any statement taken after the person invokes his privilege’ as ‘the product of compulsion’ and would therefore mandate its exclusion from evidence, even if it were volunteered by the person in custody without any further interrogation whatever. Or the passage could be interpreted to require only the immediate cessation of questioning, and to permit a resumption of interrogation after a momentary respite.
“It is evident that any of these possible literal interpretations would lead to absurd and unintended results. To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned. At the other extreme, a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests. Clearly, therefore, neither this passage nor any other passage in the Miranda opinion can sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent.
“A reasonable and faithful interpretation of the Miranda opinion must rest on the intention of the Court in that case to adopt ‘fully effective means ... to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored . . . . .’ 384 U.S., at 479, 86 S.Ct., at
1630. The critical safeguard identified in the passage at issue is a person’s ‘right to cut off questioning.’ Id., at 474, 86 S.Ct., at 1627. Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” (Emphasis supplied.)

While the Supreme Court left unanswered the issue of when and under what circumstances questioning of the accused may resume, it left no room for doubt that the admissibility of a statement taken from a person in custody depends on whether his “ ‘right to cut off questioning’ was ‘scrupulously honored.’ ”

In the case before us, the State urges that the record does not reflect that appellant “did not actually wish to invoke his right of silence” nor “that appellant refused to talk.” Miranda requires:

“If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” (Emphasis supplied.)

The testimony of the only witness on this issue, Officer Angelí, the person to whom the statement was given, reflects that the officer continued to question appellant after appellant had stated “that he didn’t want to talk” until he “persuaded him to change his mind.” The clear and inescapable conclusion from the officer’s testimony is that interrogation continued after appellant had made it known that he wished to remain silent. We are not here confronted with the question of at what point in time and under what circumstance questioning may resume after the right to remain silent has been invoked since the testimony of the officer reflects that there was never any cessation of the interrogation.

The State also points to the testimony of Angelí that after he told appellant that co-defendant Evans had confessed appellant expressed a desire to “get his part in too” and to give a “statement to the

facts.” The foregoing statements attributed to appellant do not render the confession voluntary and admissible after appellant’s request to remain silent had not been honored.

We find that the United States Supreme Court’s decision in Michigan v. Mosley, supra, construing Miranda v. Arizona, supra, dictates that the confession of appellant was rendered inadmissible when interrogation persisted and resulted in a confession after appellant’s request to remain silent had not been honored.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

      . See Hearne v. State, 500 S.W.2d 851.

      . See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

      . In Michigan v. Mosley, supra, the Supreme Court found that the accused’s right to cut off questioning was “scrupulously honored.” We quote from the syllabus of the opinion:
      “Respondent, who had been arrested in connection with certain robberies and ad-
      vised, in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, that he was not obliged to answer any questions and that he could remain silent if he wished, and having made oral and written acknowledgement of the Miranda warnings, declined to dis-

        cuss the robberies, whereupon the detective ceased the interrogation. More than two hours later, after giving Miranda warnings, another detective questioned respondent solely about an unrelated murder. Respondent made an inculpatory statement, which was later used in his trial for murder which resulted in his conviction. The appellate court reversed on the ground that Miranda mandated a cessation of all interrogation after respondent had declined to answer the first detective’s questions. Held: The admission in evidence of respondent’s incriminating statement did not violate Miranda principles. Respondent’s right to cut off questioning was scrupulously honored, the police having immediately ceased the robbery interrogation after respondent’s refusal to answer and having commenced questioning about the murder only after a significant time lapse and after a fresh set of warnings had been given respondent. Westover v. United States, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, distinguished. Pp. 324-328.”

      . Our holding herein does not affect the validity of our decisions in cases such as Reed v. State, Tex.Cr.App., 518 S.W.2d 817; Harris v. State, Tex.Cr.App., 516 S.W.2d 931; Sweiberg v. State, Tex.Cr.App., 511 S.W.2d 50.


text:
    Billy Joe EVANS, Appellant, v. The STATE of Texas, Appellee.
    No. 51309.
    Court of Criminal Appeals of Texas.
    March 31, 1976.

      Kerry P. Fitzgerald, Dallas, for appellant.
    Henry Wade, Dist. Atty., Maridell Tem-pleton, Les Eubanks and Robert Prather, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for murder. After the jury returned a verdict of guilty, punishment was assessed by the court at twenty-five years.

The deceased, Iris Zepther Carter, was found lying in front of the washateria he operated near the “intersection of Scyene and Hatcher” in Dallas during the early morning of August 22, 1971. Officer Car-mack of the Dallas Police Department testified that deceased “looked like he was struck numerous times from the lacerations on various parts of his head.” The deceased was taken to Parkland Hospital where he died two days later without having ever regained consciousness. A stipulation of testimony of Dr. William Sturner, a pathologist, introduced into evidence reflects that an autopsy revealed that the deceased died as the result of injuries to the head. The injuries found were consistent with blows being administered to the head with a blunt instrument, such as a brick. A conviction resulting from the first trial was reversed by this Court. This appeal stems from the conviction at the second trial in December, 1973.

Appellant and co-defendant Charles Edward Hearne, though indicted separately, were tried jointly in one trial.

Appellant contends, “The trial court committed reversible error in admitting into evidence the statement of Appellant’s co-defendant, parts of which clearly implicated the Appellant in the commission of the Murder, as said statement constituted hearsay and denied Appellant his constitutional right to confrontation of witnesses.”

The record reflects that confessions of appellant and the co-defendant were introduced into evidence.

The portion of appellant’s confession introduced and read to the jury (omitting the printed warnings and waiver) reads: “Voluntary Statement, August 25th, 1971, time, 5:00 p. m., Room 317, City Hall.

“I, Billy Joe Evans, am 19 years old and I live at 3811 York.
# * ⅜ ⅜ ‡ *
“Were coming from the apartments on Imperial and going to my house and walked across the parking lot, saw the man. Go into the brick yard and get a brick. Went to the brick yard and got a brick and then walked by the man one time. The old man was facing the street and then hit in the back of the head with the brick and knocked to his knees, then kicked and knocked down and the old man tried to get back up, hit in the temple with the brick. The keys were hanging in his belt and I grabbed the keys and threw them toward the street. I ran home.
“I have read this statement consisting of one page, each page of which bears my signature, and I do affirm that all facts and statements contained herein are true and correct.”

The prosecutor then stated, “This [statement] bears the signature of Billy Joe Evans and the witness’ signature, Nancy Ruth Bird.”

Co-defendant Hearne’s statement, admitted into evidence over appellant’s objection that it was hearsay to appellant and denied the appellant the right of confrontation, reads in pertinent part (omitting the printed warnings and waiver):

“On August 22, 1971 at about 5:00 a. m. Billy Joe and I had gone to Churches Chicken and they were closed, on the way back to Billy’s house we saw an old white man raking the driveway in front of the washateria at Hatcher and Scyene. We decided to rob him and each of us got a brick from the brick yard across the street and we hit the old man on the head and I kicked him when he was down. I got his billfold and handed it to Billy Joe and Billy Joe got the change out of his pockets and gave me eighty cents. We then went to Billy’s house.”

Pursuant to appellant’s request, the court instructed the jury not to consider any portion of the statement of Hearne as evidence of guilt of appellant. The court further instructed the jury in its charge that the statement of the co-defendant Hearne could only be used in establishing guilt of Hearne and was not evidence in any way against appellant.

At the close of the State’s evidence all parties rested. Neither appellant nor the co-defendant testified, and neither offered any evidence.

Appellant argues that reversible error resulted in admitting into evidence the extrajudicial confession of co-defendant Hearne, thereby depriving the appellant of the right of confrontation. In support of his argument, appellant relies on the United States Supreme Court’s decision in Bruton v. United States, 391 U.S. 123, 89 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

The State urges that the co-defendant’s statement is nothing more than cumulative of appellant’s own detailed statement admitting the commission of the offense, and error, if any, in admitting the co-defendant’s confession was harmless.

Authorities cited by appellant and the State are discussed in our recent opinion in Bass v. State, 527 S.W.2d 556:

“It is well established as a general rule that a confession of guilt can only be used against the person giving the confession and is inadmissible against others under the hearsay rule. See Schepps v. State, 432 S.W.2d 926, 940 (Tex.Cr.App. 1968); Carey v. State, 455 S.W.2d 217 (Tex.Cr.App.1970); Evans v. State, 500 S.W.2d 846 (Tex.Cr.App.1973); Hearne v. State, 500 S.W.2d 851 (Tex.Cr.App.1973); Ex parte Smith, 513 S.W.2d 839 (Tex.Cr. App.1974); Lewis v. State, 521 S.W.2d 609 (Tex.Cr.App.1975); McCormick & Ray, Texas Law of Evidence, 2nd ed., Sec. 1219, p. 96; 24 Tex.Jur.2d, Evidence, Sec. 667, p. 272.
“In Bruton v. United States, supra, the United States Supreme Court, overruling Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), held that despite instruction to the jury to disregard the implicating statements in determining the co-defendant’s guilt or innocence, admission at a joint trial of a defendant’s extrajudicial confession implicating a co-defendant violated the co-defendant’s right of cross-examination secured by the confrontation clause of the Sixth Amendment. And in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968), the Supreme Court held that the Bruton decision was not only applicable to the State proceeding, but that the decision was fully retroactive.
“While a Bruton error is one of constitutional dimension, we do know that such error can, under some circumstances, be harmless constitutional error. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). See also Ex parte Smith, supra; Carey v. State, supra.
* * sfc * ⅜ *
“. . . in Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972), the court further said:
‘The mere finding of a violation of the Bruton rule in the course of the trial, however, does not automatically require reversal of the ensuing criminal conviction. In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.’
“In Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), the court cited Harrington and Schneble with approval, and stated:
‘Upon an independent examination of the record, we agree with the Court of Appeals that the Bruton errors were harmless. The testimony erroneously admitted was merely cumulative of other overwhelming and largely uncon-troverted evidence properly before the jury.’
“In Carey v. State, 455 S.W.2d 217, 221 (Tex.Cr.App.1970), this court recognized the rule in Bruton was not absolute. See also Ex parte Smith, 513 S.W.2d 839 (Tex. Cr.App.1974).
“In Carey v. State, supra, at p. 221, this court noted:
‘It would appear that a substantial difference exists between a joint trial in which a jury hears a co-defendant’s statement inculpating a defendant who has himself made similar incriminatory admissions, and the Bruton type of case in which the co-defendant’s statement is used against a defendant who has made no admissions. In the former situation the prejudice or harmful effect to the defendant, if any, is minimal and entirely insufficient to call for a reversal, particularly where there is other adequate evidence to reflect the defendant’s guilt, (authorities cited omitted)’
“In Jones v. State, 227 So.2d 326 (Fla. App.1969), it was held that where the defendant’s confession, which was clearly admissible as against him, was in such detail that the statements of his co-defendant which implicated him added nothing new the admission was harmless error under Harrington v. California, supra. See also People v. Rosochacki, 41 Ill .2d 483, 244 N.E.2d 136 (1969).”

The foregoing authorities dictate that the admission of the co-defendant’s confession was error despite the court’s limiting instruction. We must next determine if such was harmless beyond a reasonable doubt.

In Schneble v. Florida, supra, it was stated:

“Thus, unless there is a reasonable possibility that the improperly admitted evidence contributed to the conviction, reversal is not required.”

The only evidence connecting appellant and the co-defendant with the commission of the crime consisted of their written confessions. The difficult task of attempting to delete portions of a statement incul-patory to a co-defendant is reflected by that portion of appellant’s statement introduced into evidence. The result is a statement which left much to be desired from the standpoint of clarity. The statement neither contains the date nor place where the offenses occurred. While the statement recites the date on which it was taken, no inference could be drawn from this as to the date of the crime. Clearly, meaning was given to appellant’s statement upon the admission of the co-defendant’s statement into evidence. The co-defendant’s statement supplied the link which tied “Billy Joe,” whom the jury was bound to have understood to be appellant, to the crime in question. It recited the date, time and place of the murder alleged and proven by other evidence. We cannot conclude that the statement of the co-defendant was merely cumulative of other evidence or that it did not add anything new to the statement made by appellant. While there might be a basis upon which to logically argue that the jury could have concluded that appellant’s statement, as introduced before them, constituted an admission to the crime charged, the co-defendant’s statement clearly supplied the missing pieces. The State’s case would have been significantly less persuasive without the admission of the co-defendant’s confession. Unquestionably “there is a reasonable possibility that the improperly admitted evidence contributed to the conviction.” Under the circumstances here presented, we cannot conclude that the error was harmless beyond a reasonable doubt.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

      . See Evans v. State, 500 S.W.2d 846.

      .The pertinent portion of appellant’s confession (with deleted portions identified) before deletion reads:
      “(We) were coming from the apartments on Imperial and (were) going to my house and (when we) walked across the parking lot (we) saw the man. (Charles) said let’s go into the brick yard and get a brick. (We) went to the brick yard and got a brick (apiece) and then (we) walked by the man one time. The old man was facing the street and (Charles said something to him and) then hit (him) in the back of the head with the brick and knocked (him) to his knees, then kicked (him) and knocked (him) down and the old man tried to get back up, (Charles) hit him in the temple with the brick. (Charles grabbed the man’s billfold and told me to get the car keys.) The keys were hanging in his belt and I grabbed the keys and threw them toward the street. I (paniced [sic] and) ran home. (Charles was running behind me and I ask him if he got any money and Charles said no.)”

      . Co-defendant Heame’s statement was held inadmissible in Heame v. State, 534 S.W.2d 703 (1976).

      . See Evans v. State, supra; Heame v. State, 500 S.W.2d 851.


author: ODOM, Judge.

text:
    J. N. SCOTT, Appellant, v. The STATE of Texas, Appellee.
    No. 50658.
    Court of Criminal Appeals of Texas.
    March 31, 1976.

      Dan C. Cotton, Snyder, Melvyn Carson Bruder, James P. Neill, Jr., Dallas, for appellant.
    Lealand W. Green, Dist. Atty., Snyder, William H. Davis, Asst. Director of Enforcement, State Securities Board, Austin, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

ODOM, Judge.

This appeal is from a conviction for fraudulently misrepresenting and selling securities in violation of Art. 581 — 29(C), V.A. C.S.; punishment was assessed at a fine of $2,500.00 and five years’ imprisonment.

Upon original submission we noted that the record in this cause reflected that appellant’s several briefs were all late-filed. We held that nothing was presented for review by said briefs and that there appeared to be no error that we should consider in the interest of justice.

In his motion for rehearing appellant urges that our prior holding was erroneous in that we should have considered in the interest of justice the sufficiency of the evidence with regard to the State’s burden of proof to show that the prosecution in the instant case was not barred by the relevant statutes of limitation, Arts. 12.04, 12.07, V.A.C.C.P. See Cooper v. State, Tex.Cr.App., 527 S.W.2d 563.

In Barbee v. State, Tex.Cr.App., 432 S.W.2d 78, 81, cert, denied, 395 U.S. 924, 89 S.Ct. 1779, 23 L.Ed.2d 241 (1969), this Court stated:

“While this court does not ordinarily consider the question of sufficiency of the evidence to support a conviction as unassigned error under Sec. 13 of Art. 40.09, supra, we will do so, in view of appellant’s claim that . . . there was no evidence [upon one of the essential elements of the State’s burden of proof].” (Emphasis in original)

Likewise, appellant’s claim here is that the State presented no evidence whatsoever in support of its properly plead tolling allegations in the indictment. Accordingly, in our opinion upon original submission, we were in error in not considering this issue as unassigned error in the interest of justice.

The indictment was returned on November 21, 1973, and alleged the offense occurred on July 10, 1968, over five years prior to the return of the indictment. The applicable period of limitations is three years. See Cooper v. State, supra. The indictment contained proper tolling allegations substantially the same as those set out in the opinion in Cooper v. State, supra.

Appellant’s complaint is directed at the absence of proof of that allegation.

An extended discussion of the merits of appellant’s claim is not necessary. The portions of the record the State in its brief cites as supportive of its claim that the evidence was sufficient to support the tolling allegations in the indictment are virtually identical to those discussed and rejected as constituting no evidence at all in Cooper v. State, supra. Accordingly, the judgment must be reversed.

The judgment is reversed and the cause remanded.


author: CLAUDE WILLIAMS, Chief Justice.

text:
    Sybil GOETZ, Appellant, v. James H. GOETZ, Appellee.
    Nos. 18729, 18752.
    Court of Civil Appeals of Texas, Dallas.
    Jan. 29, 1976.
    Rehearing Denied Feb. 26, 1976.

      Jack G. Kennedy, Kennedy, Minshew & Evans, Sherman, for appellant.
    Sam W. Pettigrew, Pettigrew, Buckley & Wagner, Grand Prairie, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

Divorce action. Sybil Goetz sued James H. Goetz in the district court of Grayson County seeking a divorce and a division of property. James H. Goetz brought a cross-action for divorce. Following trial before a jury, the court granted the divorce and decreed a division of the property. Sybil Goetz appeals only from that part of the judgment dividing the property and appointing a receiver. We reverse and remand.

Appellant-wife brings forward twenty-six points of error. One of her primary arguments is that the trial court erroneously submitted certain of her special issues to the jury conditionally; that the jury did not answer these special issues; and that the judgment of the trial court is based, therefore, upon an incomplete verdict. We agree with appellant.

Appellant-wife, among other things, pleaded and offered proof that appellee-husband had created the “J.H.G. Corporation,” which was appellee’s alter ego and was utilized to perpetrate a fraud upon the property rights of appellant; thus, since the corporation was property acquired during marriage, the presumption would arise that it was community property. She contended that the corporate image should be disregarded and that the court should consider the J.H.G. Corporation to be community property when dividing the marital estate. In special issue number five, the trial court asked the jury whether the $1,000 used to organize and purchase stock in the J.H.G. Corporation came from the Goetz Oil Company, which was the separate property of appellee. Conditioned upon a negative answer to issue number five, the court submitted special issues numbers nine and ten, requested by appellant which asked whether James H. Goetz conducted the affairs of the J.H.G. Corporation in such a manner that the corporation became the alter ego of James H. Goetz and whether he used the corporation as a means of perpetrating a fraud upon the property rights of Sybil Goetz. The jury did not answer special issue number five and, as a result, did not answer issues nine and ten. Appellant objected to the conditional submission of special issues nine and ten and to the rendition of judgment based upon a verdict which was incomplete due to the failure of the jury to answer issues nine and ten. Appel-lee argues that if the trial court committed error in the conditional submission of the issues then that error was harmless because the verdict of the jury in a divorce action is merely advisory and is not binding on the trial court in dividing the property of the parties.

As stated by the court in Jerrell v. Jerrell, 409 S.W.2d 885 (Tex.Civ.App. — San Antonio 1966, no writ), the constitutional provision securing the right to trial by jury includes a divorce suit. Tex. Family Code Ann. § 3.61 (Vernon Supp.1975), formerly Tex.Rev.Civ.Stat.Ann. art. 4632 (Vernon 1960), authorizes either party to demand a jury trial in a divorce case. - Although the findings of the jury are only advisory in some aspects of the case, it is reversible error to fail to submit all disputed fact issues to a jury where a jury is timely demanded. Jerrell v. Jerrell, 409 S.W.2d 885 (Tex.Civ.App. — San Antonio 1966, no writ); Langford v. Langford, 337 S.W.2d 181 (Tex.Civ.App. — San Antonio 1960, no writ); Baker v. Baker, 104 S.W.2d 531, 532 (Tex.Civ.App. — San Antonio 1936, no writ). We agree with appellee that § 3.63 of the Texas Family Code vests the trial court with wide discretion in its division of the property of the spouses and in disregarding jury findings which are advisory only. However, the court may not ignore jury findings on issues of fact from which the status of property is determined. Cockerham v. Cockerham, 527 S.W.2d 162, 173 (Tex.1975).

Since the jury did not answer special issue number five, the jury could not answer issues nine and ten which were submitted conditioned upon a negative answer to issue number five. If the jury had answered issue number five, even an affirmative answer would not have made issues nine and ten immaterial. Issues nine and ten were affirmative issues presenting the appellant’s theory as outlined above to the character of the J.H.G. Corporation. Appellant was entitled to have these issues submitted to the jury unconditionally. Since these questions determine whether assets ostensibly owned by the corporation should be treated as community property in the division of the estate, the trial court is bound by the answers. We find, therefore, that the trial court committed reversible error in submitting appellant’s issues nine and ten in a conditional manner and in rendering judgment based upon a verdict which was incomplete. We, therefore, reverse and remand.

In view of our holding that the cause be remanded, we will discuss other complaints advanced by appellant which may arise again on retrial.

During their marriage, appellant and ap-pellee entered into a written agreement dated October 6, 1970, wherein appellee agreed to transfer to appellant his interest in the Goetz Distributing Company, including the Butane and Propane portion of the company, and appellant agreed to transfer her interest in Goetz Oil Company to appel-lee. Appellee alleged that in a prior oral agreement, they had further agreed that appellee would receive as further consideration from appellant all of her interest in the realty belonging to the parties, with the exception of their home and a warehouse. Appellant denied making any oral agreement. Testimony of the alleged oral agreement was admitted into evidence over appellant’s objection that it violated the parol evidence rule. Without addressing the question of whether community property may be made separate by an oral agreement of the spouses, we hold that the trial court erred in admitting the parol testimony.

.The general rule is that when parties have reduced their contract to a writing which expresses the terms and the character of the agreement without uncertainty, it is presumed that the writing contains the whole of the agreement made, and evidence of a contemporaneous oral agreement will not be admitted to contradict or vary the terms of the written agreement. Self v. King, 28 Tex. 552, 553 (1866); M. C. Winters, Inc. v. Cope, 498 S.W.2d 484, 488 (Tex.Civ.App.—Texarkana 1973, no writ). Since appellant objected to the admission of testimony concerning the oral agreement, that testimony was inadmissible absent a showing by appellee that the written contract comes within one of the exceptions to the parol evidence rule. One exception to the rule arises when the written agreement is ambiguous. In this instance, however, appellee did not plead ambiguity, and we find that the written agreement is clear and unambiguous. Accordingly, it was error for the trial court to permit the introduction of parol testimony to vary the terms of this agreement.

Appellant also complains that the trial court erred in submitting special issues number two and three over the timely objection of appellant. Special issue number two inquired whether it was the intention of the parties to the written agreement of October 6, 1970, that certain real property was to become the property of Goetz Oil Company. The submission of this issue was clearly erroneous since (1) appellee did not plead ambiguity of the written agreement entered into between the parties and (2) the agreement appears on its face to be unambiguous. In the absence of ambiguity, it is not within the province of the jury to construe a written instrument. Burgess v. Sylvester, 143 Tex. 25, 182 S.W.2d 358, 360 (1944). Consequently, the issue inquiring as to the intent of the parties is immaterial.

Special issue number three, submitted over objection of appellant, asked whether James H. Goetz made valuable permanent improvements to certain real property. We agree with appellant’s contention that this issue was immaterial because no issue was submitted concerning the source of the funds used to make the alleged valuable improvements.

Appellant next complains of the admission into evidence of an unrecorded special warranty deed, offered by appellee to show that a $95,000 note in his favor was no longer in existence and that he had, therefore, suffered a financial loss. It was error to admit the unrecorded instrument absent proof of its execution. The record shows that the instrument was admitted into evidence, over appellant’s objection, without being authenticated in any manner. Tex. Rev.Civ.Stat.Ann. art. 3726 (Vernon Supp. 1975) provides that a recorded instrument may be introduced without proof of its execution if filed with the papers of the suit at least three days before the trial begins; that article is not applicable where, as here, the instrument has not been recorded.

Finally, appellant complains of the trial court’s failure to render a default judgment against J.H.G. Corporation because the corporation did not appear or answer although it was served with process. In her pleading, appellant alleged that the J.H.G. Corporation had been created and incorporated as a sham in an attempt to perpetrate a fraud upon her and to deprive her of a portion of the community property purchased during the marriage. Tex.R. Civ.P. 240 provides:

Where there are several defendants, some of whom have answered or have not been duly served and some of whom have been duly served and have made default, an interlocutory judgment by default may be entered against those who have made default, and the cause may proceed or be postponed as to the others.

In this instance appellant did not move for interlocutory judgment by default against the corporation but proceeded to trial and presented evidence to support her pleading that the corporation was a sham and merely an alter ego of appellee. Issues relating to the allegations of alter ego were submitted to the jury at the request of appellant. As discussed above, the jury did not answer the issue on alter ego because the issue was conditionally submitted. In the particular circumstances of this divorce action, appellant waived for purpose of this appeal her right to demand a default judgment by proceeding to trial without taking advantage of defendant’s failure to answer and by waiting until after judgment was entered to complain of the court’s failure to render default judgment against the corporation. Nealy v. Fidelity Union Life Insurance Co., 376 S.W.2d 401, 402 (Tex.Civ.App. —Dallas 1964, no writ); Foster v. L.M.S. Development Co., 346 S.W.2d 387, 397 (Tex.Civ.App. — Dallas 1961, writ ref’d n. r. e.); Shaw v. Whitfield, 35 S.W.2d 1115 (Tex.Civ. App. — El Paso 1931, no writ).

In cause number 18729 before this court, appellant appealed from an order entered after the decree of divorce in which a receiver was appointed without notice or hearing. Our reversal of the primary appeal and rendition for new trial renders the receivership issue moot. We, therefore, dismiss the receivership appeal.

For the reasons stated, we reverse the judgment of the trial court and remand the cause for a new trial. We find, however, that appellant has committed an unreasonable infraction of the rules with respect to the preparation of the record on appeal. Notwithstanding the express admonition contained in Tex.R.Civ.P. 370 that the record on appeal should be shortened, as much as possible, to further the ends of justice with as little expense and delay as possible, appellant directed the district clerk to include in the transcript many instruments which are not material to issues raised on appeal. The immaterial documents include abandoned pleadings, judge’s fiats, temporary orders, motions for continuance, motions for contempt, subpoenas, notices to take oral depositions, request for jury. These and other unnecessary instruments comprise approximately one-half of the 374-page transcript. Tex.R.Civ.P. 376 specifically sets forth the instruments which shall be included in the transcript, and this rule should be adhered to strictly. Accordingly, we order that one-half of the costs of the transcript be assessed against appellant and one-half against appellee. Reversed and remanded.

      . Tex.Family Code Ann. § 5.42(a) (Vernon 1975) and its predecessor Tex.Rev.Civ.Stat. Ann. art. 4624a (Vernon 1960), which was in effect at the time of the agreement, require that a partition or exchange of property between spouses be in writing.


author: EVANS, Justice.

text:
    GULF INSURANCE COMPANY, Appellant, v. James GIBBS, Appellee.
    No. 16611.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 5, 1976.
    Rehearing Denied March 4, 1976.

      Boswell, O’Toole, Davis & Pickering, Michael Phillips, Mark T. Price, Houston, for appellant.
    Stovall & Simmons, John Somyak, Houston, for appellee.
   EVANS, Justice.

A workman’s compensation case.

The trial court awarded appellee, James Gibbs, the sum of $22,441.73 for compensation benefits and $170.00 for past unpaid medical expenses based upon the jury’s findings of total and permanent incapacity. Appellant, Gulf Insurance Company, brings this appeal.

Appellant’s first six points of error attack the legal and factual sufficiency of the evidence to support the jury’s findings on the issues of total and permanent incapacity. In reviewing the “no evidence” points we have considered only the evidence and inferences therefrom which support such findings, and in reviewing the factual insufficiency points we have considered all of the evidence.

Appellee', James Gibbs, was 60 years old and had gone to school for only one year. He was unable to read or write. He had held jobs working on a farm, cutting railroad cross-ties, sawing blocks at a saw mill, digging septic tanks, putting in sewer lines, and carrying pipes and bathtubs for plumbing companies.

The accident occurred on September 6, 1973. It was stipulated that Gibbs sustained an accidental injury in the course and scope of his employment. At the time of the accident Gibbs was carrying plumbing materials up a ladder to the second floor of a construction site. He fell from the ladder át the second story level, landing on his right side.

The morning following the accident Gibbs’ wife transported him to Ben Taub Hospital for examination and treatment. He was told that two of his ribs were cracked and was advised not to gS back to work for six weeks. He made a second trip to Ben Taub for x-rays and pain pills, but thereafter stopped going because he couldn’t pay the hospital bills. Gibbs testified that following the accident he had pain in his side, his arm, neck, chest and back and that he had chills. At the time of his testimony, he had pain in his side, arm and lower part of his back, “around my belt.”

Gibbs further testified that there were certain things which he had been able to do before the accident but could not do after-wards. He could no longer dig and he could not lift or carry heavy items. His attempts to work again as a plumber’s helper have failed because he gets tired and weak and can’t continue through the day. He has been doing some light work about three days a week for a man named Luther Brown. This job consists of picking up trash and sweeping but does not entail any heavy carrying or lifting. He can only work about six or seven hours a day.

Luther Brown testified that Gibbs works for him three or four days a month cleaning inside apartments and that the .job did not entail any lifting, stooping, carrying or digging. He said Gibbs does some sweeping and acts as a watchman. Brown did not believe that Gibbs could put in a full 40 hour week.

Mrs. Gibbs testified that her husband was constantly complaining about pain in his neck, lower back, right side and right arm and that since the accident he had had trouble with his memory. She gives her husband a rubdown with ointment and puts a heat pad on him about two or three times a week. Her husband has not been able to do his gardening or help with many of the chores since the accident. Although he likes to fish he no longer does so because of the pain in his neck.

Gibbs sustained a neck injury in a car wreck about 9 years prior to the accident but testified he had recovered from that injury.

Dr. Otis Thomas, a chiropractor, called as a witness for Gibbs, testified that he first examined Gibbs on June 5, 1974. At that time Gibbs complained about pain in his neck, right shoulder, right arm and mid-back. X-rays taken of his cervical spine showed that the disc space between his 5th and 6th cervical vertebrae had been compressed. This narrowing of space, termed discogenic spondylosis, caused loss of feeling in Gibbs’ right arm. When such condition involves only one level of the spine, it is thought to be caused from a trauma or injury, rather than from degenerative age. The compression of the disc space could have been caused by the fall or by the auto accident; if the condition had been pre-ex-isting the fall could have aggravated the condition. The condition will not heal itself and is permanent. Based upon an x-ray of the upper part of Gibbs’ thoracic spine, Dr. Thomas testified that vertebrae processes were rotated beyond their normal limits. He also stated there was some rotation in the lower spine lumbar 1 and lumbar 2. This could have resulted in irritation of the nerve root. There were also lippings and spurrings on the lower spine which indicated that a lot of stress had been placed upon the spine over the years. A fall from a height of two floors could have aggravated these conditions.

It was Dr. Thomas’ opinion that Gibbs would have difficulty doing any kind of work that required heavy type lifting, bending, digging or strenuous activities and that his condition was either caused or aggravated by the injuries sustained in the fall and that such condition is permanent. Dr. Thomas had examined appellee on other occasions, the last occasion being March 27, 1975, a week prior to trial.

Dr. William Hand, an orthopedic surgeon called as a witness for appellant, testified that he examined Gibbs on February 26, 1974. He found Gibbs’ neck had a full range of motion; there was no tenderness when he palpated the cervical spine; the shoulders had a full range of motion; the reflexes in both arms were the same; there was nothing unusual or abnormal about the muscle strength in either arm. Gibbs had complained about pain in the neck and the upper part of the back and had also stated that his right arm had been paralyzed at one time, but that “it had gotten a great deal better recently.” No complaints were made to Dr. Hand about the lower part of his back and therefore no x-rays were taken of the lumbar spine. X-rays taken of the cervical spine showed the space between the 5th and 6th vertebrae was a little bit narrow compared to the ones above and below. X-rays of the thoracic spine were normal and did not indicate recent injury. There was no indication of nerve entrapment in either the thoracic or the cervical area.

Dr. Hand was of the opinion that appellee could do the usual tasks of workmen such as bending, stooping or lifting. On cross-examination he admitted that if a man had the beginning of a degenerative disc change as Gibbs had, a trauma might aggravate such condition and that a severe fall could bring on an acceleration or aggravation of a lipping and spurring condition that had preexisted. Dr. Hand did not examine the condition of Gibbs’ lumbar spine since Gibbs had made no mention of pain referable to that area. Gibbs testified that the lower part of his back did not begin hurting until two weeks after he went to see Dr. Hand. Dr. Hand had not examined Gibbs since February 1974 and did not know whether his condition had improved or deteriorated.

The term “total incapacity” implies a disability to perform the usual tasks of a workman and not merely the usual tasks of any particular one trade or occupation. Texas Employers’ Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000, 1001 (1944); Texas Employers Ins. Ass’n v. Hawkins, 369 S.W.2d 305, 307 (Tex.1963). A person’s disability is total within the meaning of the Compensation Act if he can no longer secure and hold employment for physical labor such as he was required to do prior to his injury. It does not mean that he must be wholly unable to do any work at all. Traders & General Ins. Go. v. Collins, 179 S.W.2d 525, 529 (Tex.Civ.App. — Galveston, 1944, writ ref’d w. o. m.); Aetna Life Ins. Co. v. Bulgier, 19 S.W.2d 821, 824 (Tex. Civ.App. — Dallas, 1929, writ ref’d). While there was testimony indicating that Gibbs could perform some kinds of manual work, there was also testimony that he was unable to perform full-time physical labor of the type he had been doing prior to his injury. The jury was entitled to believe this testimony and to reject testimony to the contrary. The jury was properly charged to determine whether the injury was “a producing cause” of any total incapacity and that the term “injury” included any aggravation of a pre-existing condition. Texas Indemnity Ins. Co. v. Staggs, 134 Tex. 318,134 S.W.2d 1026,1028 (1940). We hold the evidence to be legally sufficient to support the jury’s findings of total and permanent incapacity and that such findings are not against the great weight and preponderance of the evidence. Appellant’s first six points of error are denied.

In its points of error seven through eleven appellant contends the trial court erred in denying its motion for new trial on grounds relating to improper instructions and communications between the court and the jury which appellant asserts constituted prejudicial error.

Appellant’s complaint under these points arises from a clerical error of the court in submitting its written charge to the jury. Through inadvertence, a printed page of the charge, used in cases requiring only six person juries, was inserted in the court’s charge. This page instructed the jury that a verdict could be rendered on the vote of “five” or more members of the jury. After the jury retired with such written instructions and had deliberated upon the evidence, it was announced that the jury had reached a verdict and the following ensued:

“THE COURT: Ladies and gentlemen of the jury, have you reached a verdict?
“THE FOREMAN: We have.
“THE COURT: Please give the answer sheet to the bailiff and I will read the question number and the answer.
“Question No. 1 is answered ‘Yes.’
“The beginning date of any total incapacity is ‘September 6, 1973.’
“One B is answered ‘Permanent.’
“Then, there is a ‘five’ beside the ‘permanent.’ What is the five for?
“THE FOREMAN: That is what it should be according to the rules set forth, that if five concurred—
“THE COURT: No. If ten concurred.
“THE FOREMAN: No. Back in the instructions it says, ‘five.’
“THE COURT: Art?
“We gave you the wrong instruction page. If any ten of you agree on a twelve-man jury, it should be. I’m sorry we did not catch this as we read it. This is the instruction page for a six-man jury which requires the concurrence of five. We have a twelve-man jury which requires the concurrence of ten.
“THE FOREMAN: I didn’t read that. Is that on there?
“THE COURT: It is erroneously given you. We have a page which we use for a six-man jury and we have a page which we use for a twelve-man jury. We gave you the page which we use for a six-man jury instead of the page for a twelve-man jury; so, the verdict has to be arrived at by the concurrence of ten of you.
“THE FOREMAN: Okay.
“THE COURT: Ladies and gentlemen, obviously you have not finished your deliberations, then.
“THE FOREMAN: We need to go back.
“THE COURT: All right. Do you wish to go back and deliberate tonight, or do you wish to come back in the morning?
“Why don’t you retire to the jury deliberation room and inform us of what you are going to do.
“Retire now to the jury deliberation room and decide what you are going to do and then let us know.
“THE FOREMAN: Do we need that back?
“THE COURT: We will give it to you in just a second. The bailiff will give it to you.
“I will take the liberty, with counsel’s permission, of changing the ‘five’ as used in instruction six to ‘ten?’
“MR. SOMYAK: Yes, sir.
“MR. PHILLIPS: That is agreed, Your Honor.”

The jury then retired to deliberate upon the corrected charge and appellant moved for mistrial on the grounds that the jury had been improperly charged. While this motion was being presented the bailiff announced to the court that the jury had expressed the wish to finish that evening and wanted to know what to do about their cars. The court suggested that the jury be advised that they take a break in their deliberations. After further deliberation the jury returned a verdict into court indicating that their, vote was a 10 to 2 verdict.

The main thrust of appellant’s complaint is that prior to the submission of the corrected instructions, the court only instructed the jury that the charge should read that the verdict must be upon the agreement of “any” ten of the jurors, but failed to instruct that the “same” ten or more must agree upon all of the answers made and to the entire verdict. It argues that such oral advice to the jury not only contradicted the “corrected” charge but also violated the provisions of Rules 226a and 292, Texas Rules of Civil Procedure. Appellant argues that it was not given adequate opportunity to object to the oral instructions given to the jury, and that by the time the corrected written instructions were given “the damage had already been done.” It contends that the oral statements made by the court to the jury constituted comments on the weight of the evidence which resulted in prejudice to it.

After a cause has been submitted to the jury additional instructions may be given through careful adherence to the provisions of Rules 285 and 286, T.R.C.P. Eastex Wildlife Conservation Ass’n v. Jasper, et ah, County Dog & Wildlife Protective Ass’n, 450 S.W.2d 904 (Tex.Civ.App. — Beaumont, 1970, ref’d n. r. e.). Such additional instructions may properly be utilized to correct an incorrect charge earlier given, even after the jury has commenced its deliberations. Pacific Indemnity Co. v. Anderson, 350 S.W.2d 360, 364 (Tex.Civ.App. — Dallas, 1961, no writ). The proposed additional instructions should first be submitted to the respective parties or their attorneys for inspection and a reasonable time given in which to examine and present objections thereto. Rule 272, T.R.C.P.

In the present case appellant does not contend that the additional instructions were erroneous; nor does it argue that the manner in which the court corrected the error in the earlier charge was improper. Indeed, it expressly agreed to the method suggested by the trial court for making the correction. The additional written instructions superseded the oral remarks of the trial court and specifically informed the jury that the “same ten or more” jurors “must agree upon all of the answers made and to the entire verdict.” There is no indication that the jury was misled by the oral remarks made by the court prior to the submission of the additional instructions and, on the contrary, the record reflects that the jury understood and strictly followed the court’s corrected written instructions. We perceive no harm to appellant resulting from the court’s remarks nor from the manner of submission of the corrected charge.

Appellant also contends that there were improper communications between the trial judge, the bailiff and the jury which pressured the jury into reaching a verdict to the prejudice and injury of appellant. It complains that the trial judge, after discovering that the jury had deliberated under an erroneous charge, commented on the weight of the evidence by its remark that the jury had obviously not finished its deliberation. In the context under which this remark was made, we do not find it resulted in prejudicial harm to appellant. In similar vein we see no error or harm in the court’s suggestion that the jurors “take a break” to see about their cars, upon being advised that they wished to finish their deliberations that evening. Nor do we perceive harmful error in the court’s telephone communication to the bailiff, which was then conveyed to the jury, that in view of the lateness of the hour they retire for the evening and return the next day. We regard these matters as incidental communications between the court’s officers made with a view toward the expeditious progress of the trial and for the comfort and convenience of the jury. See McDonald, Texas Civil Practice, Vol. 3, Sec. 14.03.3 — 14.04, pp. 538, 545.

We have carefully considered the evidence adduced upon the hearing of the motion for mistrial and upon the trial of the case. Based upon the record as a whole it does not reasonably appear to us that injury probably resulted to appellant as a consequence of these matters. Ross v. Texas Employers Ins. Ass’n, 153 Tex. 276, 267 S.W.2d 541, 543 (1954); Connor v. Heard & Heard, Inc., 242 S.W.2d 205, 207 (Tex.Civ. App. — San Antonio, 1951, writ ref’d n. r. e.); Rule 327, T.R.C.P. Appellant’s points seven through eleven are denied.

Appellee contends that appellant should be assessed a penalty for filing a frivolous appeal pursuant to Rule 438, Texas Rules of Civil Procedure. We do not find that the appeal has been taken for delay or that there was no sufficient cause for taking such appeal. Appellee’s request is denied.

Affirmed.


author: McDONALD, Chief Justice.

text:
    Sylvia LUGO, Appellant, v. Harry James WADE et al., Appellees.
    No. 5509.
    Court of Civil Appeals of Texas, Waco.
    Feb. 12, 1976.

      M. N. Garcia, Austin, for appellant.
    Blundell & Moore, O. T. Moore, Jr., Lock-hart, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by Sylvia Lugo, petitioner, from denial by the trial court of her petition for writ of habeas corpus to secure the possession of her son Mario Richard Lugo.

Sylvia Lugo filed petition for writ of habeas corpus against Harry Wade and his parents Mr. & Mrs. O. J. Wade alleging they had possession of her son Mario Richard Lugo; that petitioner is entitled to possession of her son by virtue of a decree of the 207th District Court in cause 14320; that respondents refuse to return her son to her; and prayed the court order the child brought before the court and after hearing be returned to petitioner.

Defendants answered that they were not parties to the judgment petitioner relied on and are not bound thereby.

Trial before the court without a jury resulted in judgment denying petitioners application for writ of habeas corpus.

Petitioner appeals on 2 points contending: The trial court erred in denying appellant’s writ of habeas corpus because Sec. 14.10 of the Texas Family Code mandates its approval under the facts of this case.

The trial court filed Findings of Fact and Conclusions of Law summarized as follows:

Findings of Fact

1)Respondents were not parties to the suit which awarded petitioner custody of the minor.
2) This suit is within the purview of the Family Code, and no court has continuing jurisdiction of the minor.
3) The minor was voluntarily left in the custody of Mr. & Mrs. O. J. Wade by the petitioner.
4) The best interest of the minor is that he remain in the home of respondents Mr. & Mrs. O. J. Wade.

Conclusions of Law

1) Petitioners Writ of Habeas Corpus does not comply with Chapter 11 as required by the Texas Family Code.
2) Petitioner’s Writ of Habeas Corpus should be in all things denied.

There is evidence appellant Sylvia Lugo was divorced from Ambrosio Lugo on December 7, 1973 and in such divorce decree was awarded exclusive custody of her son Mario Richard Lugo, born August 27, 1973.

Appellant then began living with Harry Wade. When she left him he refused to allow her to take her son with her, and the child is now in the possession of Harry Wade and his parents Mr. & Mrs. O. J. Wade, who refuse to give appellant possession of her child.

Petitioner testified the child was not in any way related to the respondents. Harry Wade testified he “believed” he was the child’s father.

Contention 1 asserts the trial court erred in denying appellant’s writ of habeas corpus because Section 14.10 of the Family Code mandates its approval under the facts of this ease.

Section 14.10(a) of the Texas Family Code states: “If the right to possession of a child is presently governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator if and only if it finds the relator is presently entitled to possession by virtue of the court order.”

The judgment of divorce between appellant and her husband awards the care and custody of the child here involved to appellant “exclusively”. Such order is unambiguous as to the present right of possession of Mario Richard Lugo by his mother Sylvia Lugo. It is of no significance that respondents herein were not parties to the suit giving appellant custody of her son.

Appellant has custody under a court order. Article 14.10 of the Family Code gives her the clear right to go to court and regain possession of her child solely upon showing of her entitlement under the previous court order. She is not required to fight a custody or paternity battle at that time. Appel-lees have the option to file a proper lawsuit to attempt to change conservatorship or establish paternity if they so desire, but they cannot litigate such issues in this case.

Appellant’s point is sustained. The judgment is reversed and the cause is remanded to the trial court with instructions to enter judgment awarding Sylvia Lugo possession of the minor Mario Richard Lugo.

REVERSED AND REMANDED.


author: PEDEN, Justice.

text:
    Leo MICHNA et al., Appellants, v. CITY OF HOUSTON et al., Appellees.
    No. 16629.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 12, 1976.
    Rehearing Denied March 11, 1976.

      Haynes & Fullenweider, Robert B. Wallis, Ray A. Bass, III, Houston, for appellants.
    Jonathan S. Day, City Atty., Alan F. Le-vin, Senior Asst. City Atty., Dennis C. Gardner, Asst. City Atty., Houston, for ap-pellees.
   PEDEN, Justice.

This case originated as a mandamus action to compel the City of Houston to retroactively promote Police Department Lieutenants Miehna, Bradley, and Kersten to the position of police captain and to pay them the increased salaries they would have earned had they been promoted. A take nothing judgment rendered by the trial court on the limitation issue was appealed to this court. We held in that case, Miehna v. City of Houston, 521 S.W.2d 331 (1975, no writ), that the appellants’ action was not barred by limitation and we remanded this cause for the limited purpose of making a further determination of the relief to be accorded them for “the additional salaries and other emoluments of the office of captain to which they would have been entitled had they been promoted to such positions upon the expiration of ninety days following the dates their respective vacancies occurred and until the date such positions were abolished by ordinance.”

The plaintiffs had stated on their prior appeal that we “should reverse and render judgment in favor of appellants awarding them back pay from the date of accrual of their respective causes of action.” We did not order the plaintiffs promoted. Instead of rendering the damages we remanded the cause to the trial court for a determination on this aspect of the case. Neither side sought a writ of error.

After a non-jury hearing on remand, the trial judge entered an order fixing the amount of additional salary each of the lieutenants was entitled to receive, ordering the City to make appropriate pension system contributions on behalf of each of them, and finding that each was entitled to have his Civil Service records reflect that he occupied the rank of captain for the period in question. The trial court’s judgment recited,' however, “that the Court of Civil Appeals opinion does not mandate nor does the record or the law support the Plaintiffs’ claim to placement of the Plaintiffs ... on and promotion from a position reinstatement list as of July 31, 1973.” The date recited was the one on which the City by ordinance abolished the three positions of captain which we held the plaintiffs had been entitled to hold.

The appellants’ only point of error is that the trial court erred in failing to order the appellants placed on a force reinstatement list as of July 31, 1973, and to order that they be appointed to the next three positions occurring. They rely on Section 21 of Article 1269m, Vernon’s Texas Civil Statutes, which provides in part:

“In the event that any position in the Fire Department or Police Department is vacated or abolished by ordinance of the City Council, or legislative body, the employee holding such position shall be demoted to the position next below the rank of the position so vacated or abolished; provided that when any position or positions of equal rank may be abolished or vacated, the employee or employees with the least seniority in the said rank shall be the one or ones who are demoted.
“In the event that it thereby becomes necessary to demote an employee or employees to the position next below the rank of the position so vacated or abolished, such employee or employees as are involuntarily demoted without charges having been filed against them for violation of civil service rules shall be placed on a position reinstatement list in order of their seniority. If any such position so vacated or abolished is filled or re-created within one (1) year, the position reinstatement list for such position shall be exhausted before any employee not on such list is promoted to such position. Promotions from the position reinstatement list shall be in the order of seniority.”

The appellants also contend that the right to be placed on the position reinstatement list was an emolument of the office of captain, so the mandate of this court required the trial court to order their names included. They point out that more than three appointments were made to newly-created captains’ positions within a year after the three positions were abolished on July 31, 1973, and that they would have been promoted if their names had been put on the position reinstatement list.

The City responds with three arguments as to position reinstatement list rights: first, the plaintiffs’ claim to them is barred by res judicata ; second, such rights are not an emolument of office; and third, equitable considerations bar the plaintiffs’ claim to them.

We affirm the judgment of the trial court. We agree with the City’s assertion that the plaintiffs’ claim to position reinstatement rights is barred by the principle of res judicata. The plaintiffs first raised the list rights issue in their motion for determination of relief on remand. In the first trial (on the merits) their petition contained a prayer for general relief, but they did not preserve any point of error on the list rights issue on the prior appeal. The effect of a ruling in favor of the plaintiffs would be an order awarding each of them the rank of captain, relief they neither raised nor obtained on their prior appeal.

When a case is remanded with instructions, the authority of the trial court is limited and no issue can be tried except under the authority of the mandate. Humble Oil & Refining Co. v. Kishi, 299 S.W. 687 (Tex.Civ.App., 1927, writ ref.). On remand we limited the determination of relief to the period ending on July 31, 1973, so the trial court was not authorized to consider events occurring or benefits which might have accrued beyond that date.

All grounds of recovery or defense relating to the cause of action asserted in a pending suit must be urged or will be barred by the judgment. Ogletree v. Crates, 363 S.W.2d 431 (Tex.1963); Griffin v. Holiday Inns of America, 496 S.W.2d 535 (Tex.1973).

The judgment of the trial court is affirmed.


text:
    Trudy M. THOMAS, and Herb Sucherman, Temporary Guardian of the person and Estate of James E. Thomas, Deceased, Appellants, v. Lillian Thomas PRICE, Appellee.
    No. 5546.
    Court of Civil Appeals of Texas, Waco.
    Feb. 19, 1976.

      Robert H. Osburn, Dallas, for appellants.
    James R. Pitts, Waxahachie, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by appellants Trudy M. Thomas and Herb Sucherman from an order of the trial court denying appellants’ motion to stay and transfer proceedings in a will probate case.

On July 16, 1975 the County Court of Ellis County admitted to probate the last will of James E. Thomas, deceased, and appointed the deceased’s sister and principal beneficiary Lillian Thomas Price Ad-ministratrix with Will Annexed of the deceased’s Estate.

On July 18, 1975 Herb Sucherman alleging himself temporary guardian of the person and estate of James E. Thomas, filed Motion to Stay, and Transfer such proceedings to Dallas County. Thereafter Sucher-man was joined by Trudy M. Thomas, who alleged herself the common law wife and widow of deceased.

The grounds asserted for transfer of the cause to Dallas County were: 1) That the deceased’s residence and domicile was in Dallas County; and 2) That prior “probate proceedings” had been instituted in Dallas County.

The trial court after hearing denied Appellants’ Motion to Stay and Transfer Proceedings to Dallas County.

The trial court filed Findings of Fact summarized as follows:

Findings of Fact

1) There is no evidence of a ceremonial marriage between James E. Thomas and Trudy M. Thomas.
2) James E. Thomas died in Rusk State Hospital June 29, 1975.
3) James E. Thomas was not a resident of Dallas County at the time of his death.
4) James E. Thomas was declared insane by the County Court of Ellis County on December 15, 1933.
5) James E. Thomas was a resident of Ellis County at the time he was declared insane.
6) The principal part of decedent’s property lies in Ellis County.
7) James E. Thomas left a valid will dated December 8, 1917 which was probated in County Court of Ellis County leaving all his property to his sister Lillian Thomas Price, a resident of Ellis County.
8) An Administratrix with Will Annexed was appointed by the County Court, who resides in Ellis County, and transfer by the proceeding to Dallas County would not be in the convenience of the Administratrix.
9) James E. Thomas was convicted of a crime in Dallas County; hence a Temporary Guardianship was taken out in Dallas County.
10) A Motion to Stay and Transfer Proceedings was filed on July 18, 1975.
11) Convenience for moving the Estate from Ellis County has not been shown by anyone who is an heir or devisee of James E. Thomas, deceased.

The trial court rendered its judgment denying the Motion to Stay and Transfer Proceedings.

Appellants appeal on 20 points contending:

1) The trial court erred in denying appellants’ Motion to Stay and Transfer Proceedings in that the Probate Court of Dallas County had priority of venue.
2) Dallas County was the deceased’s domicile on the date of his death.
3) Probate proceedings were first commenced in Dallas County.
4) The trial court erred in finding deceased was declared insane by the County Court of Ellis County in 1933 as there is no evidence and insufficient evidence to support the finding, and a court cannot take judicial notice of proceedings in other cases or courts.

Section 6 of the Probate Code provides: “Venue for Probate of Wills and Administration of Estates of Decedents Wills shall be admitted to probate, and letters testamentary or of administration shall be granted:

(a) In the county where the deceased resided, if he had a domicile or fixed place of residence in this State.
(b) If the deceased had no domicile or fixed place of residence in this State but died in this State, then either the county where his principal property was. at the time of his death, or in the county where he died.”

Section 8 provides “Concurrent Venue and Transfer of Proceedings (a) Concurrent Venue. When two or more courts have concurrent venue of an estate, the court in which application for probate proceedings thereon is first filed shall have and retain jurisdiction of the estate to the exclusion of the other court or courts * * *

“(c) Transfer of Proceeding (1) Transfer for Want of Venue. If it appears to the court at any time before the final decree that the proceeding was commenced in a court which did not have priority of venue over such proceeding, the court shall, on the application of any interested person, transfer the proceeding to the proper county * * *. (2) If it appears to the court at any time before the final decree that it would be for the best interest of the estate, the court, in its discretion, may order the proceeding transferred to the proper court in any other county in this State.”

There is evidence deceased died in the Rusk State Hospital June 29, 1975. There is evidence that his domicile was and had always been Ellis County. There is evidence that his domicile had been in Dallas County since 1953. The trial court took judicial notice that deceased had been declared insane by the County Court of Ellis County on December 15, 1933. There was no evidence of any restoration. There is evidence that a Temporary Guardianship was taken out on deceased in Dallas County in 1973 for the purpose of getting a bill of review for deceased in a criminal matter; and that the temporary guardian never came into possession of any property. There is evidence that more than 97% of deceased’s property was in Ellis County, and that his sister and beneficiary under his will lives in Ellis County. Proceedings in probate of deceased’s will administration of deceased’s estate were first commenced in Ellis County.

The trial court was authorized under the record to find that deceased’s domicile at death was Ellis County.

It is undisputed that deceased was domiciled in Ellis County in 1933 when he was adjudged insane. There is no evidence he was ever restored. Thus his domicile continued in Ellis County.

Appellants contend the trial court could not take judicial notice of its prior 1933 judgment declaring deceased insane. It is established by the law of this state that courts may take judicial knowledge of their own records, and all judgments rendered in cases involving the same subject matter and practically the same parties. Cochran County v. Boyd, Tex.Civ.App. (Amarillo) Er.Ref., 26 S.W.2d 364; Victory v. State, 138 Tex. 285, 158 S.W.2d 760; Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274; Pridgen v. Denson, Tex.Civ.App. (Austin) NRE, 298 S.W.2d 276; Barnett v. Mai-da, Tex.Civ.App. (Beaumont) NRE, 523 S.W.2d 325.

All appellants’ points and contentions have been considered and are overruled.

AFFIRMED.