author: POPE, Justice.

text:
    Kenneth W. COOK, Administrator, Texas Alcoholic Beverage Commission, Relator, v. Franklin S. SPEARS, Judge, et al., Respondents.
    No. B-5059.
    Supreme Court of Texas.
    June 11, 1975.
    Rehearing Denied July 16, 1975.
    John L. Hill, Atty. Gen., Joe B. Dibrell and Max P. Flusche, Jr., Asst. Attys. Gen., Austin, for relator.
    Soloman Casseb, Jr., and Jack Paul Leon, San Antonio, for respondents.
   POPE, Justice.

Kenneth W. Cook, Administrator, Texas Alcoholic Beverage Commission, by this mandamus proceeding asks this court to compel the respondent, Franklin S. Spears, Judge of the 57th Judicial District, to set aside certain orders made in connection with an appeal from an order suspending a permit. It is our opinion that the decision of the Alcoholic Beverage Commission has now become final and that a mandamus would be meaningless. It is for that reason that we deny the petition for mandamus.

On October 25,1974, the Alcoholic Beverage Commission, after a hearing, ordered a five-day suspension of the private club ex-, emption certificate permit issued to Mike Sfair, d/b/a Commander’s Room in San Antonio. On November 1, the permittee appealed to the district court pursuant to the provisions of Section 7a, Article 666-15e, Tex.Penal Aux.Laws (1974). On that same day the district judge set aside the Commission’s suspension order pending the trial on appeal. See Section 7a(d), Article 666-15e, Tex.Penal Aux.Laws (1974).

Notwithstanding Section 7a(c) of the Liquor Control Act which requires a trial within ten days, the case was not set until December 13. When the case was called for trial on December 13, the permittee moved for a continuance but agreed to try the case on January 8, 1975. The parties agreed that the suspension order would remain in effect pending the hearing on that date. On January 8, the permittee urged two motions, one for continuance; the other to compel the Commission to disclose the name of an unidentified informant. The trial court granted both motions, but it also stayed its order requiring the Commission to disclose the identity of the informant pending an application to this court for a writ of mandamus.

The Commission’s first contention is that the trial court has lost jurisdiction because the time for a trial on appeal has now ended by reason of Article 666-15e, Section 7a(c) of the Texas Liquor Control Act. The Commission emphasizes the significance of Section 7a(c) and its requirement that “All such causes shall be tried before the judge within ten (10) days . . . .” The appeal in this case was not set for trial until forty-three days after the appeal was filed. It was then continued on two occasions.

The legislative history of the appeal provisions of the Alcoholic Beverage Act forecloses any idea that the statute means only that the trial on appeal shall be an expeditious one. Article 666-14 of the Texas Liquor Control Act provides generally for appeals from Commission orders. When Article 666-14 was first enacted in 1935, the statute required only that the appeal be tried within ten days or at the earliest possible time thereafter. In 1937, the Legislature amended the section by strictly limiting the time for a trial on appeal to ten days from the date an appeal is filed.

In 1965, Article 666-15e was added to the Liquor Control Act by the Acts of the 57th Legislature when the Legislature authorized the licensing of private clubs. Section 7a of Article 666 — 15e contains its own provision for appeals, but it is expressed in the same limiting language used in Article 666-14, subd. c. We conclude that the time for an appeal endured for ten days and that there is no authority to extend that time.

The Legislature in enacting Section 7a, Article 666-15e, also included the statement that the requirement for a ten-day trial, as well as other requirements not here in point, “shall be considered literally.” The statute leaves no room for interpretation or discretion. There was a limited right to a trial on appeal and that right was exhausted ten days after November 1, 1974.

The proceedings which occurred after ten days from November 1, 1974, were void because the right to a trial on appeal was lost. See Texas Liquor Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891, 895 (Tex.1970); State v. Bush, 151 Tex. 606, 253 S.W.2d 269 (1952); City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788 (1951). The relator’s prayer for a mandamus ordering the trial court to set aside its orders for continuance and discovery are denied, because those matters are now immaterial. The appeal and proceedings on appeal which occurred after ten days from the filing of the appeal are functus officio, and the Commission’s suspension order has now become final and enforceable.

      .7a. An appeal from any order of the Board or Administrator under this section refusing, cancelling or suspending a permit or license must be taken to the District Court of the county in which the private club permit is sought. The proceeding on appeal shall be de novo under the same rules as ordinary civil suits, with the following exceptions, which shall be considered literally, viz.:
      (a) . . .
      (b) . . .
      (c) All such causes shall be tried before the judge within ten (10) days from the filing thereof, and neither party shall be entitled to a jury.

      . Such cause shall be tried before the Judge of such Court within ten (10) days after the docketing of the cause, or in the earliest possible time añer such ten (10) day period, in the event the Judge is not able to try such cause within such ten (10) day period. Tex. Laws, 2d Spec.Sess. 1935, ch. 467, Art. I, § 14, at 1795. (Emphasis added.)

      . 14c. All such causes shall be tried before the Judge within ten (10) days from the filing thereof, and neither party shall be entitled to a jury. Tex.Laws 1937, ch. 448, § 15, at 1053.


source: Caselaw Access Project

author: DOUGLAS, Judge.

license: Public Domain

text:
    Robert ROCKWOOD, Appellant, v. The STATE of Texas, Appellee.
    No. 49,697.
    Court of Criminal Appeals of Texas.
    June 11, 1975.
    Rehearing Denied July 9, 1975.
    Leonard L. Franklin and Wade H. Walker, Austin, for appellant.
    Bob Glasgow, Dist. Atty., Quay Parker, Asst. Dist. Atty., Stephenville, Jim D. Vol-lers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of sodomy under the former Code. The jury assessed the punishment at fifteen years.

The trial was in February, 1974.

Appellant contends that the conduct he was charged with is not a crime under the 1974 Penal Code and that he did not have adequate representation of counsel.

The record reflects that in July of 1973 appellant had his nine-year-old stepdaughter commit an act of oral sodomy upon him while her sister and mother were away from the house.

When the mother returned the nine-year-old daughter told her what had happened. When her mother confronted appellant with what the daughter had told her, he flew into a rage, assaulted the daughter, choked her and threw her into the air and let her fall.

Appellant then went to their garage. The girl’s mother followed him and saw that he had a rope and a barrel and was apparently going to commit suicide. She called the officers and he was arrested.

Article 524 of the former Code, under which appellant was charged, was repealed.

Section 6(b) of the Savings Provision of the 1974 Code provides:

“Conduct constituting an offense under existing law that is repealed by this Act and that does not constitute an offense under this Act may not be prosecuted after the effective date of this Act. If, on the effective date of this Act, a criminal action is pending for conduct that was an offense under the laws repealed by this Act and that does not constitute an offense under this Act, the action is dismissed on the effective date of this Act. .” (Emphasis supplied)

Does the present Penal Code provide an offense for the conduct charged in the indictment and proved during the trial?

Chapter 21, V.T.C.A. Penal Code, Sexual Offenses, provides that the following (among others) are crimes: (1) sexual abuse; (2) aggravated sexual abuse; (3) homosexual conduct; (4) sexual abuse of a child, and (5) indecency with a child.

We hold that the conduct alleged and proved constitutes an offense under the 1974 Code and precludes dismissal of the sodomy trial.

Appellant contends that his retained counsel did not adequately represent him. He contends among other things that the attorney did not subpoena witnesses and did not make but one objection during the trial. A hearing was had on the motion for new trial. Appellant’s trial counsel testified that he obtained a list of the prospective witnesses from the district attorney. Through correspondence with the prosecutor, trial counsel learned that there were no tests made and no statement taken from any witness. Counsel talked to some prospective reputation witnesses but decided not to use them because they, in his opinion, would not benefit appellant during the trial. One of these witnesses was a woman with whom appellant was apparently living at the time of the trial.

When the attorney was asked by appellate counsel about not conducting a more vigorous cross-examination, he answered that he did not want to antagonize the jury and have them sympathize with the young girl, her sister and the mother. He further related that he did not question the prosecutrix, her sister or mother before the trial because he did not want to acquaint them to what his cross-examination would be. This was trial strategy.

There are some cases that cannot be won. An attorney must appraise a case and do the best he can with the facts. See Curtis v. State, 500 S.W.2d 478 (Tex.Cr.App.1973).

Appellate and other counsel might have tried the case differently, but that does not show inadequate representation.

The trial judge was present during the trial. He heard the evidence. He also heard the testimony on the motion for new trial.

We hold that appellant has neither shown that he had inadequate representation of counsel, a violation of a legal duty, nor that the trial judge abused his discretion in overruling the motion for new trial.

The judgment is affirmed.


author: ROBERTS, Judge. DOUGLAS, Judge ODOM, Judge

text:
    John A. POORE, Appellant, v. The STATE of Texas, Appellee.
    No. 49645.
    Court of Criminal Appeals of Texas.
    June 18, 1975.

      Joseph G. Stulb, Jr., Court appointed, Universal City, for appellant.
    Ted Butler, Dist. Atty., C. Nick Rothe and David K. Chapman, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

Appellant was convicted of robbery by assault and was assessed a punishment of five years’ confinement.

Appellant complains of the court’s granting of the State’s motion in limine prohibiting the introduction of a shoplifting conviction against the State’s main witness for impeachment purposes. The issue joined is whether or not the claims by the witness himself that the conviction was later set aside are competent to establish that the conviction was not final and therefore could not be used for impeachment.

We are met at the outset with the threshold question of whether or not the issue has been properly preserved for review. The dissenters would affirm because appellant’s ground of error was not preserved below. We think the error was clearly identified and consistently preserved in several instances. It is true that a defendant cannot rely solely on his motion in limine to preserve error in the admission of inadmissible evidence. He must object to an offer of specific evidence and obtain an adverse ruling at the trial. Brazzell v. State, 481 S.W.2d 130 (Tex.Cr.App.1972). But here the appellant is complaining of the exclusion of evidence pursuant to the State’s motion in limine. In this case, the mere offer of evidence, followed by an adverse ruling, is sufficient to preserve the question for review.

On voir dire, the State’s witness judicially admitted his prior conviction and the appellant offered the final court-martial order to impeach the State’s witness and invited the State to offer papers showing that the conviction had been reversed, but the trial judge rejected such offer of proof stating:

“Well, I am going to deny its admissibility at this point.”

Thus there was an adverse ruling by the trial judge. Moreover, during the trial the next day, appellant filed a written Motion for Reconsideration of State Motion in Li-mine and for Discovery, attaching the record of the witness’ conviction, but said motion was denied to which the defendant excepted. Thus, appellant has carefully preserved his ground of error for review by this Court.

The question presented for review is a straightforward one, but it appears never to have been addressed by this Court. Simply stated, it is whether the witness’ prior conviction was admissible to impeach him or whether his own testimony denying the finality of the conviction rendered it inadmissible. There is no disagreement that a felony conviction or misdemeanor conviction involving moral turpitude, if not too remote, can be used to impeach a witness’ credibility. Art. 38.29, Vernon’s Ann. C.C.P.; Rivas v. State, 501 S.W.2d 918 (Tex.Cr.App.1973); Nichols v. State, 494 S.W.2d 830 (Tex.Cr.App.1973). A misdemeanor conviction for theft involves moral turpitude and can be used for impeachment. Avilla v. State, 493 S.W.2d 233 (Tex.Cr.App.1973); Martin v. State, 491 S.W.2d 928 (Tex.Cr.App.1973). A conviction which has been reversed is not a final conviction and therefore cannot be used for impeachment. See Baker v. State, 520 S.W.2d 782 (delivered April 2, 1975) and Ringer v. State, 137 Tex.Cr.R. 242, 129 S.W.2d 654 (1938), in which convictions on appeal were held inadmissible for impeachment purposes.

Prior to the passage of Art. 732a, V.A.C. C.P. in 1951 (now Art. 38.29), the fact that a witness was charged by indictment, information or complaint with the commission of a crime was admissible to impeach him. This law in part gave rise to a long line of cases permitting a witness so impeached to rehabilitate himself on redirect examination. Jackson v. State, 33 Tex.Cr.R. 281, 26 S.W. 194 (1894); Green v. State, 62 Tex.Cr.R. 345, 137 S.W. 126 (1911); Chappel v. State, 136 Tex.Cr.R. 528, 126 S.W.2d 984 (1939); and see Modica v. State, 94 Tex.Cr.R. 403, 251 S.W. 1049 (1923) in which the State’s witness, who had been impeached by showing a court-martial for an offense committed while he was in the Army was allowed to rehabilitate himself by testifying on redirect that he had received an honorable discharge. Even when such impeachment was limited to the showing of final convictions, the witness, in the sound discretion of the trial judge, was allowed to explain the circumstances or protest his innocence. See Chappel v. State, supra; 166 A.L.R. 211, 231. It has been held that a witness impeached by a showing of a prior conviction had the right to introduce a pardon for that offense to bolster his credibility. Gaines v. State, 95 Tex.Cr.R. 368, 251 S.W. 245 (1923). Bernard’s, Inc. v. Austin, 300 S.W. 256 (Tex.Civ.App.1927).

But the preceding cases involved rehabilitation of a witness whose convictions had already been made known to the jury. Unquestionably, such rehabilitation should be allowed within reasonable limits. In the case at bar, however, the fact of conviction was offered outside the presence of the jury to determine the question of its admissibility. The State contends that the witness was then competent to deny its finality and thus its availability for impeachment. But the rule urged by the State would have at least two unworkable results. In the first place, any witness being impeached by prior convictions could simply claim that such convictions had been reversed, suspended, probated, appealed, etc. and were therefore unavailable for impeachment, despite the inherent unreliability of such self-serving declarations. Secondly, the party who would impeach the witness is placed in the impossible position of having to prove the non-existence of a fact—in this case, that the papers showing reversal of the witness’ conviction do not exist. These undesirable results could be avoided by adoption of the rule that a witness is not competent to deny by parol evidence the finality of his conviction for an offense. When the impeaching party has established the fact of conviction, either by the witness’ own admission or by tendering the judgment and sentence to the court, the burden should then shift to the party offering the witness to introduce competent, documentary evidence showing that the conviction is not final. This Court seemed to be applying this reasoning in Sipanek v. State, 100 Tex.Cr.R. 489, 272 S.W. 141 (1925) where it required a witness to prove the fact of his pardon by the Governor’s proclamation, and not by parol evidence. And more recently, this Court held that admission of a prior conviction to impeach a defendant was not error, even though the subsequent voir dire examination revealed that the sentence had been suspended and the conviction later set side. Smith v. State, 409 S.W.2d 409 (Tex.Cr.App.1966). We held that the defendant had the burden of affirmatively proving that the conviction was set aside and, in the absence of such proof, its admission was not error.

A strict application of the best evidence rule to the proof of a prior conviction would require the production of a copy of an official document since the object of the proof is the contents of the judgment of conviction. 4 Wigmore, Evidence, Sec. 1270 (Chadbourne rev. 1972). See Overton v. state, 490 S.W.2d 556 (Tex.Cr.App.1973). However, an exception to this rule has been adopted in Texas, Johnson v. State, 453 S.W.2d 828 (Tex.Cr.App.1970), and in many other jurisdictions, that a witness may be impeached with a prior conviction on the basis of the witness’ own admission of that conviction, as was done in the case at bar. It is not then required that a copy of the judgment of conviction be produced.

The logic of this exception is evident. The best evidence rule requires proof by a written copy of an instrument because of its superior reliability over the recollection of a witness “as to its contents and meaning.” See Overton v. State, supra. However, the same indicia of reliability also are present when a witness while testifying admits his prior conviction. It is unlikely that the witness is mistaken about the conviction or that he would admit a prior conviction when none had occurred. It is in his self-interest to protect himself from impeachment and his character from being impugned. An admission of a prior conviction is an admission against that self-interest.

Testimony that a conviction has been reversed does not bear the same indi-cia of reliability. Such testimony is exculpatory and self-serving and it is more likely that such testimony would be given falsely. Hence, the rationale for the rule we adopt today: that documentary evidence is required to deny the finality of a conviction introduced for impeachment purposes.

We hold that the burden was on the State to show that its witness’ conviction was not final, cf. Smith v. State, supra, and that the State failed to meet this burden. In the absence of such competent rebuttal evidence, we must assume that the conviction shown by the court-martial records was final. 1 McCormick & Ray, Texas Law of Evidence, Sec. 98. In the state of this record, the exclusion of the conviction was reversible error. Since the complainant was the only witness to implicate the appellant and the only witness to contradict appellant’s testimony, the error was harmful.

The judgment is reversed and the cause remanded for a new trial.

DOUGLAS, Judge

(concurring).

I concur that the appellant properly presented the evidence concerning the court-martial of the witness to the judge during the trial.

The State’s motion in limine was filed and granted on March 20, 1974. On March 21, during the trial, appellant filed a motion for reconsideration of the State’s motion in limine and for discovery with a copy of the court-martial order attached. This was denied on the 21st of March.

During the trial and outside the presence of the jury, the witness testified that he had been convicted in 1972 for theft of property. Counsel for the defense stated that he had the court-martial order and if there were other orders that changed this order he would have no objection. Before counsel finished his statement, the court interrupted and refused to admit the evidence.

This was sufficient as an objection in a hearing outside the presence of the jury under Article 40.09, Section 6(d)(3), V.A.C. C.P.

This is like Powers v. State, 456 S.W.2d 97 (Tex.Cr.App.1970). There, during the trial on the merits, the jury was retired and the court denied a motion to suppress. This was held to be sufficient as an objection because it was during the trial.

In the present case the appellant filed his motion to reconsider the granting of State’s motion in limine. It was also brought to the attention of the trial court outside the presence of the jury while evidence was being introduced during the trial.

The appellant complied with Article 40.-09, Section 6(d)(3), supra, and the objection to the exclusion of the evidence was sufficient and he properly showed the court what evidence he wanted before the jury.

Motions in limine, whether they be motions to suppress or motions to introduce evidence or objections to evidence, should be treated alike. The main thing to be considered is that the judge should have sufficient notice of what a defendant is complaining about during the trial to pass upon the matter. In this case he did.

The part of the opinion holding that the judgment in the court-martial proceeding should have been admitted is correct, but to the part which states, apparently in dictum, that the witness could not testify that the conviction was reversed, I cannot agree. The jury could pass upon his credibility. The best evidence rule should not be applied. See Johnson v. State, 453 S.W.2d 828 (Tex.Cr.App.1970).

ODOM, Judge

(dissenting).

The majority misstate appellant’s ground of error. Appellant contends the trial court erred in granting the State’s motion in li-mine. He then argues that this ruling was harmful because it prevented him from proving the prior shoplifting conviction of a State’s witness for impeachment. The majority treat the issue as one of erroneous exclusion of admissible evidence. The record does not reflect any such ruling. Having failed to offer admissible evidence and secure an adverse ruling, nothing is presented for review. The mere granting of a motion in limine is not sufficient. Norman v. State, 523 S.W.2d 669 (1975); Duran v. State, Tex.Cr.App., 505 S.W.2d 863.

The majority reverse this case on the conclusion that a document showing the witness’ prior conviction was improperly excluded from evidence. I dispute that holding because the record does not show the document to be admissible. It purports to be a record of a court-martial conviction, but it is neither authenticated under the official documents act, nor identified under the business records act, nor in any other way shown to be admissible. From the record before this Court it appears to be nothing more than hearsay. For this reason I would find the record fails to reflect that any admissible evidence was tendered and excluded by the trial court. No error has been shown.

I also take issue with the assertion in Judge Douglas’ concurring opinion that Article 40.09(6)(d)(3), V.A.C.C.P., applies to the facts of this case. That statutory provision speaks specifically to instances when the trial court “rules that . . . evidence shall be admitted . . .” (Emphasis added) Appellant’s complaint, as construed by the majority, is directed to the exclusion of evidence, not the admission of evidence. Article 40.09(6)(d)(3), supra, does not apply. Article 40.09(6)(d)(l) and (2), V.A.C.C.P., do apply, and require that after evidence is excluded by ruling of the court, the evidence that would have been offered shall be adduced before the reporter, or the party, if permitted by the court in its discretion, may make a concise statement of what the excluded evidence would show. It does not appear that either method was followed in the instant case. No such offer before the reporter and out of the hearing of the jury of any excluded evidence appears. Neither does it appear that the court permitted a concise statement of what the evidence would show, because it is precisely upon this point, i. e., whether or not it would show a final conviction, that the dispute arose.

As above stated, the record does not reflect that admissible evidence was excluded, and therefore does not support the reversal.

Accordingly, I dissent.


text:
    William Paul PESCH, Appellant, v. The STATE of Texas, Appellee.
    Nos. 49975, 49976.
    Court of Criminal Appeals of Texas.
    June 11, 1975.
    Rehearing Denied July 9, 1975.

      Marvin G. Kramer, Dallas, for appellant.
    Henry Wade, Dist. Atty. and John H. Hagler, Jay Ethington and Robert Whaley, Asst. Dist. Attys., Dallas, Jim D. Yollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

These are appeals from convictions for murder with malice. The court assessed the punishment in each case at life. The date of the alleged offense was August 18, 1973. The trial was after the effective date of the new code.

Appellant contends that the court erred in its instruction on insanity and that error was committed in argument.

Appellant, after an argument with his father concerning his (appellant’s) drinking, killed his father and then his mother in their mobile home by stabbing them with knives. The next day he was arrested at the scene. The day following his arrest he voluntarily confessed. His defense was insanity.

He contends that the trial court erred in refusing to charge the jury on insanity as it is defined in V.T.C.A., Penal Code, Section 8.01, effective January 1,1974. It provides:

“(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of mental disease or defect, either did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated.
“(b) The term ‘mental disease or defect’ does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”

The trial court charged the jury concerning the defense of insanity on the “right and wrong” test, under the McNaughton Rule, in effect at the time of the commission of the offense. He notes that it could be possible for a finding of insanity under the 1974 code and not under the former code. He does not show how this could have been done under the evidence in this cause.

The Savings Provisions, Section 6, Acts 1973, 63rd Legislature, Chapter 399, are:

“(a) Except as provided in Subsections (b) and (c) of this section, this Act applies only to offenses committed on or after its effective date, and a criminal action for an offense committed before this Act’s effective date is governed by the law existing before the effective date, which law is continued in effect for this purpose, as if this Act were not in force. For purposes of this section, an offense is committed on or after the effective date of this Act if any element of the offense occurs on or after the effective date.
“(b) Conduct constituting an offense under existing law that is repealed by this Act and that does not constitute an offense under this Act may not be prosecuted after the effective date of this Act. If, on the effective date of this Act, a criminal action is pending for conduct that was an offense under the laws repealed by this Act and that does not constitute an offense under this Act, the action is dismissed on the effective date of this Act. However, a conviction existing on the effective date of this Act for conduct constituting an offense under laws repealed by this Act is valid and unaffected by this Act. For purposes of this section, ‘conviction’ means a finding of guilt in a court of competent jurisdiction, and it is of no consequence that the conviction is not final.
“(c) In a criminal action pending on or commenced on or after the effective date of this Act, for an offense committed before the effective date, the defendant, if adjudged guilty, shall be assessed punishment under this Act if he so elects by written motion filed with the trial court before the sentencing hearing begins.”

An examination of the savings provisions shows the basic rule is that criminal actions are governed by the law existing at the time of the commission of the act. Where the act was committed prior to the effective date of the code but where the trial was held subsequent to that date there are two exceptions to that rule. One, conduct which was an offense under the old code and is no longer an offense may not be prosecuted after the effective date and the action is dismissed. Two, the defendant may elect, if adjudged guilty of the offense as defined by the old code, to be punished under the new code.

A newly enacted statute, when it becomes effective, is presumed to be prospective unless it is expressly made retrospective under Article 5429b-2, Section 3.01, Vernon’s Ann.Civ.St., which is made applicable to the new Penal Code through V.T.C.A., Penal Code, Section 1.05(b). The savings provisions make the code retrospective only in two specific instances, mentioned above, and neither apply in this case.

Here, the conduct constituting the offense was appellant’s killing his mother and father. Insanity is a defense that excuses a defendant from punishment because of his state of mind at the time of the commission of the act. Article 34, V.A.P.C. (1925), states: “No act done in a state of insanity can be punished as an offense.” See 16 Tex.Jur.2d, Criminal Law, Section 91, et seq. It does not mean that the conduct (if the accused is sane) does not constitute an offense. Appellant’s conduct would still constitute the offense of murder under the new code.

We overrule appellant’s contention that the offense is not complete until the sanity of a defendant is determined. Section 8.01, supra, has as an element of the affirmative defense of insanity that the mental condition must be present- at the time of the conduct charged. Insanity as a defense has always required this element. See Hogan v. State, 496 S.W.2d 594 (Tex.Cr.App.1973), cert. denied, 414 U.S. 862, 94 S.Ct. 81, 38 L.Ed.2d 112, and 16 Tex.Jur.2d, supra. The determination at trial that a defendant was insane at the time of the commission of the crime is just that — a determination of his mental state at the time the act was committed.

We hold that the trial court did not err in submitting the issue of insanity under the rule as it existed at the time of the commission of the offense.

Appellant also contends that the trial court erred in refusing to charge the jury concerning the law of conditional release in Article 46.02, Section 2(d)(3), Vernon’s Ann. C.C.P., which, in part, provides:

“If there be no jury finding on the issue of present insanity, then the court, if the discharge or going at large of defendant be considered by the court manifestly dangerous to the peace and safety of the people, shall order defendant committed . . .

The proceedings began on February 4, 1974, with the empaneling of a jury to hear the issue of competency to stand trial or sanity at the time of trial. On February 5, 1974, a jury found him “sane.” In that proceeding, the court charged the jury that if they found the appellant presently insane they were to determine whether hospitalization was required.

Trial on the merits began February 6, 1974. The verdict of guilty was returned on February 11, 1974. Since the jury had already found that he was sane at the time of the trial, the provision of Article 46.02, supra, by its terms, did not apply. The requested charge was properly refused by the trial court.

Finally, appellant contends that the prosecutor in his closing argument injected facts not in evidence and that such argument was prejudicial.

Mr. Whaley, Assistant District Attorney, stated: “Mr. Kramer said w'e never brought all of the bottles. We never brought all of the medicine bottles. We never brought all the whiskey bottles — .” Mr. Kramer, appellant’s counsel, objected that the mention of other liquor bottles was completely outside the evidence. It was overruled. Mr. Wha-ley then stated:

“I understood the Deputy Sheriff when he testified in answer to the question from Mr. Ethington say that he hadn’t brought all the evidence he found in that trailer. Now, if you remember it differently, by all means, you be guided by your remembrance of it. I don’t have any corner on the brain market. I don’t remember everything exactly right, but I recall him saying he did not bring all the evidence, and we know he didn’t bring any of the pills, pill bottles, . . .”

Appellant contends that, since insanity was his defense and it was important that he show the killing was not the result of intoxication but of insanity, the mention of several whiskey bottles at the scene prejudiced his case.

A deputy sheriff who investigated the scene and gathered the evidence testified concerning that evidence as the State introduced each item. One such item was referred to as an empty vodka bottle. Defense counsel in his argument stated:

“. . . And you heard one officer say, there was other evidence that the State didn’t want to bring up here. There was other evidence in the case, and you don’t see that.”

Appellant’s sister testified that when she discovered the bodies her brother was in the trailer asleep and appeared to be intoxicated.

The prosecutor’s argument was based upon a reasonable deduction from the evidence and was invited. No new and harmful fact was injected into the case. No reversible error is shown. See Jones v. State, 520 S.W.2d 755 (Tex.Cr.App.1975).

The judgments are affirmed.


author: ODOM, Judge. MORRISON, Judge DOUGLAS, Judge

text:
    Robert LUMPKIN, Appellant, v. The STATE of Texas, Appellee.
    No. 49771.
    Court of Criminal Appeals of Texas.
    June 11, 1975.
    Rehearing Denied July 9, 1975.

      Joe J. Johnson, Jr., Port Worth, for appellant.
    Tim Curry, Dist. Atty., and Travis Young, Bill A. Leonard and Tim Evans, Asst. Dist. Attys., Fort Worth, Jim D. Vol-lers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted of theft of property over the value of fifty dollars and was sentenced to ten years’ imprisonment.

In his first ground of error, appellant contends the evidence was insufficient to show that the truck trailer alleged to have been stolen was in fact owned by J. M. Ellis as alleged in the indictment.

Ellis testified that on the date alleged in the indictment he had custody of Overseas Container’s service trailer number ADCU209231. However, he admitted on cross-examination that all his knowledge and information concerning this trailer was based solely upon records of his employer, and that he had no personal knowledge regarding the truck trailer in question. The records were not offered or introduced into evidence. No other evidence of the ownership of the trailer with number ADCU209231 appears in the record before us. The issue, then, is whether this testimony was sufficient to show ownership as alleged in the indictment.

If a witness is qualified under Article 3737e, Sec. 2, Vernon’s Ann.Civ.St., and testifies to facts satisfying the requirements of Article 3737e, Sec. 1, supra, the record, so far as relevant, may be admitted into evidence. Prine v. State, Tex.Cr.App., 509 S.W.2d 617; Lawless v. State, Tex.Cr.App., 495 S.W.2d 241. Alternative to introducing the document itself into evidence, the record may be read into evidence. Williams v. State, Tex.Cr.App., 508 S.W.2d 83. Once a record has been introduced, physically or by reading, its contents may be explained by a witness properly qualified to do so. Norris v. State, Tex.Cr.App., 507 S.W.2d 796 (dictum). The procedures set out in the cases here cited were not followed in the case before us.

In Trujillo v. State, 166 Tex.Cr.R. 405, 313 S.W.2d 871, this Court stated:

“Article 3737e V.C.S., by its terms, authorizes proof by the testimony of the entrant, custodian or other qualified witness, ‘even though he may not have personal knowledge as to the various items or contents of such memorandum or record,’ and that ‘such lack of personal knowledge may be shown to affect the weight and credibility of the memorandum or record but shall not affect its admissibility.’ ”

The Court was speaking of the requirements for admissibility of a record stated in Art. 3737e, Sec. 1, supra, and the method of proving the existence of those requirements and not of proving the contents of the records themselves. Art. 3737e, Sec. 2, supra. In Trujillo, and again in Thomas v. State, Tex.Cr.App., 493 S.W.2d 832, which relied upon Trujillo, the records themselves were introduced. Neither of those cases, nor Alvarez v. State, Tex.Cr.App., 508 S.W.2d 100, which discussed both, stands for the proposition that Article 3737e, Sec. 2, authorizes proof of the information in records by the testimony of a custodian who lacks personal knowledge of those facts to which he offers testimony. Testimony by a witness to facts of which he has no knowledge is hearsay; and the mere existence of writings, somewhere, whether business records or not, does not change the hearsay character of that testimony.

Memory may be refreshed by business records as well as by other means. In such event, however, with a refreshed recollection the witness is testifying to facts of which he has personal knowledge. The rule permitting business records to be used in this manner (Ginn v. State, Tex.Cr.App., 439 S.W.2d 840; Moreno v. State, 170 Tex.Cr.R. 410, 341 S.W.2d 455) does not authorize a witness who does not have personal knowledge of the information in the records to testify to that information as though he had knowledge of it, and it does not remove any such attempt from the realm of hearsay.

If, instead of testifying as though the facts learned from studying records were known personally, a witness testifies that he has examined certain documents and those documents state certain matters as fact, the testimony of the witness is not itself hearsay. It is, however, subject to the best evidence rule objection inasmuch as the testimony purports to establish that the writings are thus and so as testified. Cozby v. State, Tex.Cr.App., 506 S.W.2d 589, does not hold to the contrary. It was there stated that the best evidence rule is satisfied when the writing is produced, and that it need not be introduced. However, even if the rule is satisfied, a hearsay problem may exist despite the fact that the statements from the witness stand are not hearsay. If the statements are offered for the truth of the matter contained in the writings, then it must appear that the writings, themselves, are not hearsay. If they are hearsay, then the testimony would only establish that the witness knows certain writings to exist; it would not evidence the truth of the content of those writings. As to such content, the testimony would be hearsay.

The evidence of ownership in the record before us consists entirely of assertions of personal knowledge, and admissions that all knowledge of those matters was gained by studying records. The records were not admitted as in Prine and Lawless, supra. They were not read into evidence as in Williams, supra. They were not used to refresh personal knowledge as in Ginn and Moreno, supra. Nor were they produced and testimony given as to their contents as outlined in Cozby and Alvarez, supra. The testimony offered amounted to nothing more than hearsay.

Hearsay is without probative value, even if admitted without objection. Mendoza v. State, Tex.Cr.App., 522 S.W.2d 898 (1975); Reynolds v. State, Tex.Cr.App., 489 S.W.2d 866. It constitutes no evidence, and will not be considered in determining the sufficiency of the evidence. Payne v. State, Tex.Cr.App., 480 S.W.2d 732; Cherb v. State, Tex.Cr.App., 472 S.W.2d 273; Rogers v. State, Tex.Cr.App., 368 S.W.2d 772; O’Beirne v. State, Tex.Cr.App., 365 S.W.2d 787. Eliminating the hearsay evidence of ownership from consideration, there is no evidence in the record of ownership.

Because there is no evidence of ownership, the judgment is reversed and the cause remanded.

MORRISON, Judge

(dissenting).

The majority is holding that henceforward in all motor vehicle theft cases it is imperative that the State introduce the certificate of title to such vehicle even though the custody is charged to have been in an agent or employee of the true owner.

This has never been the rule in theft prosecutions in this State and should not be adopted as a new rule.

DOUGLAS, Judge

(dissenting).

The majority reverses this conviction for inadequate proof of custody even though the witness J. M. Ellis testified without objection that he had control of the trailer in question. When he testified that he had control that was sufficient to show ownership.

The majority holds that the cross-examination destroyed his testimony on direct examination because he had no personal knowledge or information concerning the trailer except from the records of his employer.

This new rule established by the majority now requires personal knowledge by a witness of all the items in his place of business before he can testify he had custody of them.

It would not be logical or possible for the person in custody of thousands of items of merchandise to have personal knowledge of each item. For example, a wholesale distributor of appliances could have a large warehouse covering several acres of land and no one connected with the business would have personal knowledge of the items. Only the records and serial numbers could be used to establish ownership.

A truck driver who connects his tractor to a trailer for a cross-country trip would, probably in most instances, have little or no personal knowledge of the contents of the trailer.

The new rule adopted by the majority would make it impossible in many cases to successfully prosecute for thefts, especially from large business concerns.

Mark me dissenting from such an illogical rule that has no place in business or law.

      . The record reflects the following on direct examination of Ellis:
      “Q. I’ll ask you in whose custody was that trailer, ADCU209231, on May 15, 1973?
      “A. My custody.”

      . The record reflects the following on cross-examination of Ellis:
      “Q. Now, in other words, all you can tell this jury is T looked at a record and somebody by the name of Campbell said we have control of a trailer that came in from Houston, and that record that I looked at was made by someone else and that somebody else said when it was taken.’ That’s all you’re telling the jury, isn’t it?
      “A. Yes, sir.
      “Q. That’s all you can tell them, because that’s all you know about it?
      “A. Yes, sir.”

        .Alvarez states that in Thomas the witness testified from the laboratory report. The opinion in Thomas, however, states that the laboratory report was introduced into evidence.

      . See 63 Tex.Jur.2d, Witnesses, Secs. 171 et seq.

      . Judge Douglas, in his dissent, asserts that a “new rule” is being established that a witness must have personal knowledge of the items in his place of business in order to testify to his custody of them. That assertion is unfounded. The witness here could have brought his records with him and complied with the rules of evidence for their introduction.
      In marked contrast, Judge Morrison, in his dissent, asserts that we are holding that a certificate of title must be introduced to show custody. This assertion is equally unfounded. If the witness here had had actual personal knowledge, no documents would have been required at all. The shortcoming in the State’s proof in this case is that no probative evidence of ownership, by records or personal knowledge, was introduced.

      . Article 6687-1, Sections 1 and 2, V.A.T. C.S.


text:
    Frankie L. WILBOURN, Appellant, v. The STATE of Texas, Appellee.
    No. 49813.
    Court of Criminal Appeals of Texas.
    June 11, 1975.
    Rehearing Denied July 9, 1975.

      Charles W. Fairweather and Selden B. Hale, Amarillo, for appellant.
    Stephen F. Cross, Dist. Atty., Borger, Jim D. Vollers, State’s Atty., David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for murder with malice. The jury assessed punishment at ninety years.

The controlling issue concerns the introduction of evidence of rape committed by appellant and his co-indictee, William Harrison, approximately three days before the homicide.

On the morning of September 15, 1971, workmen spotted a pile of clothing just off the highway outside the city of Borger. Following what appeared to be drag marks into a pasture a short distance away, they found the partially clad body of Carol Ann Martin. An autopsy showed that a stab wound in the chest caused her death. There was no evidence of a sexual assault.

Both the appellant and Harrison were indicted for the murder. Harrison was tried first and convicted.

During its case-in-chief, the State called P-L-who testified that on September 11,1971, prior to the murder, appellant and Harrison forcibly raped her. She testified that she was working as a waitress in a bar in Odessa when Wilbourn and Harrison entered and spent the evening drinking beer and playing pool. Wilbourn asked her to go dining and dancing with him after she finished work and she agreed. Instead of going to a club, they drove out into the country and stopped. From one o’clock a. m. to about six o’clock a. m., while threatening her with a knife, Wilbourn and Harrison alternated in sexually assaulting her. When they finished, Wilbourn stated that they could either kill her or threaten her to remain silent. They finally decided to take her back to Odessa. After they let her out of the ear, she called the police.

The State’s case was based on circumstantial evidence.

The State contends that the testimony of P-L- aided the jury in understanding the context of the present case by explaining, among other things, why the appellant and Harrison left Odessa. The State relies on Simmons v. State, 504 S.W.2d 465 (Tex.Cr.App.1974). Simmons complained in his appeal from a conviction of murder with malice that the trial court erred in admitting evidence of extraneous burglary and theft offenses. Simmons first burglarized a residence on August 2, returned on August 3rd to obtain property that he could not carry away before and on that occasion was surprised by the deceased whom he took off and drowned. This Court said that evidence of the burglaries was admissible because it was so interconnected with the commission of the murder that it could not be separated and was, therefore, admissible as res gestae to show the context in which the murder occurred.

In Powers v. State, 508 S.W.2d 387 (Tex.Cr.App.1974), this Court held that in a trial for murder with malice evidence of an extraneous offense of burglary which occurred some two to two and a half hours after the commission of the murder and some seven or eight miles away from the scene of the murder was not admissible because there was no showing that it was part of the same continuing transaction.

The rape occurred approximately three days before the murder of Carol Ann Martin. It was not res gestae of the offense of murder of Carol Ann Martin. The evidence of the alleged rape is not admissible on the issues of identity, intent, malice or motive. See Ransom v. State, 503 S.W.2d 810 (Tex.Cr.App.1974).

Appellant did not testify and no defense was established.

In 23 Tex.Jur.2d, Evidence, Section 194, page 294, it is stated:

“As a general rule, in criminal cases the accused can be convicted, if at all, only by evidence that shows that he is guilty of the offense charged. Consequently, evidence that he has committed other crimes that are remote and wholly disconnected from the offense with which he is charged is ordinarily inadmissible.

See McAllister v. State, 489 S.W.2d 887 (Tex.Cr.App.1973). There are exceptions to the general rule. See Owens v. State, 450 S.W.2d 324 (Tex.Cr.App.1970). One of those exceptions is to controvert a defense advanced by a defendant.

No defense of alibi was shown. No question of identity was raised. No exception to the rule of admitting extraneous transactions is shown. The witness should not have been permitted to testify concerning her abduction and the assaults committed upon her.

Because of the admission of such testimony, the judgment is reversed and the cause remanded.

      . His conviction was affirmed in Harrison v. State, 501 S.W.2d 668 (Tex.Cr.App.1973). Harrison confessed and much of the evidence in that trial does not appear in the record in the present case.

      . Throughout the process of this trial the State and the defense referred to a diagram showing the general location where the body was found, where the car was abandoned, where the knife was found, where a lug wrench was found and where a pile of clothes was found. It is difficult to follow this record and understand the meaning of the locations of the various items and the proximity of those items to each other without the diagram in the record. Counsel and the court should, especially in cases like this, preserve such diagram and see that it is included in the record in order to aid this Court in understanding the testimony given.


author: O’QUINN, Justice.

text:
    Linda Roma JACKSON, Appellant, v. Richard Thomas JACKSON, Appellee.
    No. 12204.
    Court of Civil Appeals of Texas, Austin.
    June 4, 1975.
    Rehearing Denied June 25, 1975.

      Alfred E. Glenn, Austin, for appellant.
    J. C. Hinsley, James W. Townsend, Austin, for appellee.
   O’QUINN, Justice.

Linda Roma Jackson, appellant, sued Richard Thomas Jackson for divorce, child custody and division of property. After trial before the court, without intervention of a jury, judgment was entered in February of 1974 granting appellant a divorce, appointing managing and possessory conservators for the children, providing child support, and ordering division of the real and personal property.

Appellant brings three points of error under which she contends (1) that she was improperly denied trial by jury, (2) that award of 351.6 acres of land in Caldwell County to appellee as his separate property was not supported by clear and convincing proof, and (3) that it was error to find there was no evidence of probative force that value of the land had been enhanced by contributions from the community estate.

We will overrule the points of error and affirm the judgment of the trial court.

Appellant filed this lawsuit in November of 1972 and sought, among other remedies, injunctive relief to restrain defendant in several respects. During the next nine months she was before the trial court on various motions, but at no time sought to have the case set for trial on the merits, nor did she make a demand for a jury or pay a jury fee.

On motion of appellee, defendant below, the trial court, on August 9, 1973, set the cause for trial on the non-jury docket for September 6, 1973. Two weeks after the case was set for trial, on August 24, 1973, appellant demanded a jury and paid the jury fee, and the case was placed on the jury docket. Appellee moved to strike the case from the jury docket, and after a hearing the trial court on August 31, 1973, entered an order striking the case from the jury docket.

The court’s order recites that the court heard evidence and argument of counsel, after which the court found that “the facts and allegations contained in said motion to strike are true and correct, and among other things, that there would be no jury available on September 6, 1973, nor during the week of September 3, 1973, nor would a jury be available to hear such case until the first week in December, 1973, thus causing an excessive delay in the trial of said cause and that the demand for a jury and the payment of a jury fee was for the purpose of delaying trial of this cause.”

The transcript does not include appellee’s motion to strike, and evidence adduced at the hearing on the motion has not been brought forward in the statement of facts by appellant.

Appellant relies for reversal upon these provisions of Rule 216, Texas Rules of Civil Procedure:

“No jury trial shall be had in any civil suit, unless application be made therefor and unless a fee of five dollars if in the district court, and three dollars if in the county court, be deposited by the applicant with the clerk to the use of the county on or before appearance day or, if thereafter, a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than ten days in advance.”

Appellant did not demand a jury and pay the fee “on or before appearance day,” but did take this action “not less than ten days in advance” of the date set for trial. In Texas Oil and Gas Corporation v. Vela, 429 S.W.2d 866, 877 (Tex.Sup.1968) the Supreme Court agreed with the holding of the court of civil appeals (405 S.W.2d 68, Tex.Civ.App.) “that a demand made ten days in advance is not necessarily timely as a matter of law,” and that in view of circumstances mentioned by the trial court in that case denial of a jury trial was not error. The trial court had mentioned that a jury was not available, trial would be delayed, and the court’s heavy docket in a district composed of four counties. Even though demand was made ten days in advance of the date of trial, the court of civil appeals held that “these facts support the trial court’s conclusion that the demand was not made a reasonable time in advance of the setting.” (405 S.W.2d 80)

This Court followed Vela in Sylvester v. Griffin, 507 S.W.2d 649, 651 (Tex.Civ.App. Austin 1974, no writ).

In addition to the findings contained in the order, the trial court filed findings of fact and conclusions of law in which the court found that the case had been on file nine months during which time appellant, though before the court on various motions, failed to demand a jury and pay the fee. The court concluded that “demand for a jury was not made within a reasonable time before the date set for trial . . . [and] To have permitted the cause to remain on the jury docket would have unreasonable [sic] delayed the trial . . . [therefore] This cause was properly removed from the jury docket and trial by jury was properly denied.” As already observed, the trial court in its order found that demand for a jury was “for the purpose of delaying trial” of the case.

We find nothing in the record, and appellant has not brought forward either evidence or findings of fact, to refute, or to demonstrate a conflict with, the findings of the trial court upon which the cause was stricken from the jury docket and trial by jury was denied. Appellant has not met the burden to show that the order of the trial court was contrary to law or. that the court’s action was an abuse of discretion. We hold that the trial court did not err but acted within its discretion in striking the cause from the jury docket.

Under the final two points of error appellant contends that the trial court incorrectly found that 351.6 acres of land in Caldwell County is “altogether the separate property of the Appellee,” and that the court erred in finding there was no evidence of probative force that the value of the land “had been enhanced by any contributions by the community estate.”

Appellee contended in the trial and contends on appeal that the 351.6 acres of land is his separate property, received by him in the course of settlement of his deceased father’s estate.

The trial court made and filed findings of fact and conclusions of law in addition to the findings and conclusions contained in the judgment. The court found that “Title and ownership of the . . . [351.6 acres of land] is in Respondent by inheritance from his father and mother and such property is the separate property of Respondent [appellee].” The trial court awarded the land to appellee and “adjudged and decreed . that said 351.6 acres is the sole and separate property of Respondent

When a marriage is dissolved all property possessed by a husband and wife is presumed to be their community property, although this presumption is rebuttable, and the burden is upon the spouse asserting otherwise to prove the contrary by satisfactory evidence. Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex.Sup.1965). The presumption was created by Article 4619, sec. 1, Vernon’s Ann.Civ.St. (Acts 1959, 56th Leg., p. 881, ch. 404, sec. 1), which was repealed effective January 1, 1970 (Acts 1969, 61st Leg., p. 2707, ch. 888, sec. 6), but the presumption was carried over and remains by clear language of Section 5.02 of the Texas Family Code, V.T.C.A. McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex.Sup.1973).

To discharge the burden, the spouse asserting property to be separate, and therefore not a part of the community estate, must trace and clearly identify the property claimed as separate property. McKinley v. McKinley, supra, Tarver v. Tarver, supra; Wilson v. Wilson, 145 Tex. 607, 201 S.W.2d 226, 227 (1947); Chapman v. Allen, 15 Tex. 278, 283 (1855); Epperson v. Jones, 65 Tex. 425, 427 (1886). It appears from the cases decided under the statutes that difficulty in tracing and identifying property claimed to be separate most frequently arises with respect to personalty which has been so commingled with community property as to defy resegregation and identification, in which instances the burden is not discharged and the statutory presumption that the entire mass is community controls its disposition. Tarver, supra; Bryant v. Bryant, 478 S.W.2d 602, 605 (Tex.Civ.App. Waco 1972, no writ).

From a careful examination of the record we conclude that appellee discharged his burden to prove that the 351.6 acres- of land was his separate property, acquired as a result of a series of events and transactions related to the wills of his mother and father and to transfers pursued by appellee, his brother, and his step-mother in final settlement of his father’s estate, of which the disputed tract of land was a part.

Six documents were introduced into evidence at the trial to establish history of title to the 351.6 acres of land. Under the will of appellee’s mother, who predeceased appellee’s father, she provided if her husband should enter into a second marriage, the mother’s part of the community property should be set aside for the two sons, appellee and his brother. The record shows that appellee’s father did remarry about three years after his first wife’s death.

The will of appellee’s father was also placed in evidence. Under his will the bulk of his estate, both separate and community, went to his second wife and to the two sons of the first marriage, share and share alike. The home in Lockhart went to the wife. The father’s will acknowledged the fact that under his first wife’s will one-half of the community of the first marriage was devised to the two sons, and the father’s will indicates that distribution made by him constituted an attempt to make equitable division of his separate and community interests among his second wife and the two sons.

The remaining four documents introduced pertained directly to title to the 351.6 acres of land. In January of 1960 appellee’s brother conveyed a one-third interest in the land to appellee. In April of 1960 the father’s widow, his second wife, conveyed her interest in the 351.6 acres of land to appel-lee and his brother. That deed recites full valuable cash consideration and negatives any lien being retained. The record shows that on the same date this conveyance was made the widow was issued a cashier’s check in the sum of $17,000 which had been purchased by the father’s estate.

In May of 1961 appellee conveyed the 351.6 acres of land to his brother. The deed did not specify the consideration, nor was a lien retained. Seven weeks later, in July of 1961, appellee’s brother reconveyed the same tract of land to appellee, again without specification of the consideration and without retention of a lien. There is some evidence in the record that at the time of the father’s death, late in 1957, there was a lien against the 351.6 acres of land to secure a loan from the Federal Land Bank. Ap-pellee testified that his brother and the estate had been making payments on the note, and appellee understood the conveyance in May of 1961 was to enable his brother, who appears to have managed the business of the father’s estate, to handle a loan. But when the property was conveyed to appellee a few weeks later in the final settlement of the estate, there was no lien retained and none assumed by appellee. We find no evidence in the record that the community estate of appellant and appellee at any time agreed to make payments on any debt against the 351.6 acres of land, and there is no showing what amount of money, if any, was paid from community funds of appellant and appellee on principal or interest related to a debt against the land appellee received in final settlement of the father’s estate.

It is undisputed that the father’s widow, who was devised the home in Lockhart, decided in 1960 that she did not want to remain in Lockhart and desired to move to Kerrville. She also decided that she did not want any of the land constituting part of the residuary estate, which included two farms, one being the 351.6 acres of land in controversy, and several lots at Seguin. The transactions in 1960 and 1961, by which the 351.6 acres of land was transferred among the two sons and the widow, were part of an effort to divide the estate in an equitable manner, involving in the main town property and two farms. Ultimately, the widow received cash from the estate, and the two sons divided the several tracts of land between them, with appellee receiving the 351.6 acres of land.

The trial court found the community estate of appellant and appellee to have a net value of $37,045.00, of which the court awarded property having a net value of $665.00 to appellee. Appellant insists that a total of $6,330.00 was paid from community funds on a debt against the 351.6 acres of land and that the trial court erred in finding that contributions from the community had not enhanced the value of appellee’s separate property interest in the tract. Appellant failed to prove any increase in value of the 351.6 acres of land, even if community funds were used to discharge part of an indebtedness against the farm. Such payments, if made, did not automatically result in enhancement. Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799, 802 (1925).

A trial court is invested with wide discretion in disposing of both community and separate property in a divorce proceeding, and the court’s action in exercise of its discretion should not be disturbed on appeal, unless there is a showing of abuse of discretion because disposition made of property is manifestly unjust and unfair. Bryant v. Bryant, supra; Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923). We have concluded that the trial court divided the community property in a manner deemed by the court to be just and right. Maddox v. Maddox, 489 S.W.2d 391 (Tex.Civ.App. Houston 1st 1973, no writ).

The judgment of the trial court is affirmed.


author: GUITTARD, Justice.

text:
    LLOYD A. FRY ROOFING COMPANY, Appellant, v. STATE of Texas, Appellee.
    No. 18559.
    Court of Civil Appeals of Texas, Dallas.
    May 15, 1975.
    Rehearing Denied June 5, 1975.

      Jack Pew, Jr., D. L. Case, Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellant.
    John Hill, Atty. Gen., Troy C. Webb, Asst. Atty. Gen., Austin, for appellee.
   GUITTARD, Justice.

The State of Texas sued Lloyd A. Fry Roofing Company for civil penalties and injunctive relief under the Texas Clean Air Act, Tex.Rev.Civ.Stat.Ann. art. 4477-5 (Vernon Supp.1974), for alleged violations in connection with the operation of defendant’s plant for the manufacture of asphalt shingles at Irving, Texas. The petition alleges violation of the regulations of the Texas Air Control Board in two respects: (1) failure to install stack-sampling facilities on request of the Board, and (2) permitting visible emissions from defendant’s plant of greater opacity than the maximum allowed by the Board’s regulations. In a trial to a jury, the trial court directed a verdict against defendant on the charge of failure to install stack-sampling facilities and the only issues submitted to the jury in that respect concerned penalties for the alleged violation. Issues were also submitted concerning the alleged opacity violation. Based on the jury’s answers, the court awarded penalties against defendant of $43,400 on the stack-sampling charge and $19,750 on the opacity charge and also granted injunctive relief. Defendant appeals.

With respect to the stack-sampling charge, we hold that the trial court had no jurisdiction because the request by the Board’s engineer and counsel for defendant to install these facilities was not an order of the Board and did not exhaust the Board’s primary jurisdiction. Accordingly, we reverse and render judgment denying any relief based on this charge. With respect to the opacity charge, we hold that the trial court had jurisdiction, that the evidence is legally sufficient to support the jury’s findings that the opacity of the emissions from defendant’s plant was in excess of that allowed by the Board’s regulations, and that defendant was not denied due process by the Board’s failure to give defendant notice concerning the times and places of taking opacity readings at defendant’s plant. However, we reverse and remand for a new trial on the opacity charge because of the exclusion of certain evidence offered by defendant and because the court permitted the State to prove defendant’s total assets and gross receipts on a nationwide basis.

I. The Board’s Primary Jurisdiction

Under authority of § 3.10(f) of the Act, the Board has adopted regulations requiring that any property owner upon request by the Board shall provide such stack-sampling facilities “as may be necessary for the Board to determine the nature and quantity of solid particles which are or may be discharged as the results of source operation.” The record shows that on May 23, 1972, one of the Board’s engineers visited defendant’s plant and instructed defendant to construct facilities for stack sampling, including steel platforms, steel ladders, sampling ports, and power sources, as described in three pages of specifications. On May 31, 1972, the Board’s chief of legal staff wrote a letter to defendant’s plant manager “officially requesting” that the facilities specified by the engineer be installed by June 26, 1972. According to evidence offered by defendant, but excluded by the court and presented to us in a bill of exception, installation of the facilities requested would require an expenditure of $12,500. The Board has never held any hearing to determine whether the facilities specified are “necessary for the Board to determine the nature and quantity of solid particles which are or may be discharged as the results of source operation,” and has never made any fact finding to that effect. Neither has the Board entered any order requiring, or even requesting, defendants to install such facilities. No regulation of the Board describes the particular facilities which the Board’s staff is authorized to request. On defendant’s failure to install the facilities requested by the engineer and the attorney, without any further order of the Board, the State, acting through the Attorney General, filed this suit for civil penalties and injunctive relief.

We hold that the request by the Board’s engineer and attorney is not a ruling, decision, or similar act of the Board which would exhaust its primary administrative jurisdiction to determine the feasibility and necessity of the stack-sampling facilities requested. Consequently, the trial court lacked jurisdiction to determine whether defendant was in violation of the Board’s regulations by failing to comply with the request. This exact point has been decided adversely to the State’s contention in Lloyd A. Fry Roofing Co. v. State, 516 S.W.2d 430, 433 (Tex.Civ.App.—Amarillo 1974, writ ref’d n. r. e.). We concur in the views expressed in that opinion.

Defendant contends that the same considerations apply to the charge concerning the opacity of the emissions from defendant’s plant. We overrule this contention because the Board’s regulations establish standards applicable to the emissions in question, and no question is presented of feasibility or necessity that should first be presented to the Board. Section 4.02 of the Act authorizes the Attorney General, at the Board’s request, to file suit for penalties and injunctive relief for violation of such regulations. We hold that the present suit falls within that authority in so far as penalties are sought for violation of the Board’s opacity regulations.

II. Evidence to Support Verdict

The evidence was undisputed that the emissions from defendant’s two plant stacks, if considered on a purely visual basis, had greater opacity than the thirty-percent maximum specified by the Board’s regulations. Such visual opacity, however, did not in itself establish a violation because the regulations recognize that visible emissions of water do not create an air-contamination problem unless the water is combined with other particles. Accordingly, the applicable regulation provides: “Equivalent opacity contributions from uncombined water shall not be included in determining compliance.”

The principal fact dispute at the trial was whether, after excluding any opacity contributed by “uncombined water,” the remaining opacity of the emissions from defendant’s stacks was still in excess of that allowed by the regulations. The jury found that on twenty-five separate days the visible emissions from defendant’s plant stacks were in excess of the maximum allowed. In answer to Question Nine, the jury found that on these days the visible emissions did contain uncombined water. In answer to Question Ten, however, the jury found that when the uncombined water was excluded from the readings, the opacity was still in excess of that allowed by the regulations. Defendant contends that there is no evidence to support the jury’s answer to Question Ten and, consequently, that judgment should have been rendered in its favor on the basis of the answer to Question Nine.

We overrule this contention because we hold that the evidence was sufficient to support the jury’s answer to Question Ten. The point turns on whether the State’s witnesses excluded from their readings the uncombined water which the jury found, in answer to Question Ten, to have been contained in the emissions. These readings were made by visually observing the “plume” emitted from each stack at intervals over a period of several minutes, recording the estimated percentage of opacity, and averaging the resulting figures. According to the Board’s instructions concerning plumes containing steam, readings “should be taken immediately beyond the point where the steam dissipates.” Although there is some uncertainty in the record as to whether “steam” is invisible water vapor or condensed droplets, the jury was at liberty to conclude from the context of the Board’s instructions and from the testimony of the witnesses that the term was used to refer to water in visible form since, of course, invisible water vapor would contribute no opacity.

Five expert witnesses called by the State testified concerning their readings on the several days in question. Three of these testified that they never detected any uncombined water in the emissions from defendant’s stacks. Witness Lewis testified that he read the plume “beyond the point where the steam dissipated,” which, he said, was at a point no more than five feet from the stack. Witness Lightfoot testified that he was familiar with the method of determining uneombined water in a plume. That procedure, he said, was to determine whether the plume had the characteristics of a steam plume with “white steam that is dissipating,” and, if so, to read just beyond the point of dissipation of the white steam plume. He testified that his readings were. taken at the point where the steam, or uncombined water, had dissipated.

The readings reported by Lewis and Lightfoot, as well as by the State’s other three experts, consistently exceeded the thirty-percent maximum opacity permitted by the Board’s regulations. The averages reported by Lewis varied from 56.6 percent to 64.1 percent. Lightfoot’s averages varied from 53.8 percent to 72.8 percent. We hold that this evidence justified the jury in finding in answer to Question Ten that, when uncombined water is excluded from the readings, the opacity was in excess of that allowed by the regulations.

Defendant also contends that when the evidence is considered in the light of the entire record, including the testimony of its own witnesses, the evidence is factually insufficient to support the jury’s answer to Question Ten. We do not reach this question, since we remand the case for a new trial on grounds later to be discussed.

III. Right to Notice of Board’s Observations

The readings of the State’s five expert witnesses were taken on various occasions without warning or notice. Defendant contends that this procedure denied it due process because it had no opportunity to observe the accuracy of the observations of the State’s experts or to have its own experts make observations at the same time so as to enable them to present rebutting testimony. Defendant insists that since the ultimate fact issues to be decided are the opacity of the emissions at the particular times when the readings were taken, such lack of notice leaves these issues to be decided entirely on the subjective opinions of the Board’s witnesses, without any means of preserving the evidence they observed. In support of this contention, defendant cites Western Alfalfa Corp. v. Air Pollution Variance Board, 534 P.2d 796 (Colo.App.1975).

We conclude that defendants have not been denied due process. Unlike the situation in the Western Alfalfa case, the defendant here had the opportunity to present rebutting evidence. Although defendant’s witnesses could not testify concerning opacity of the emissions on the same days that the Board’s experts made their observations, defendant had the opportunity for observations under various atmospheric conditions and under various circumstances of the operation of the plant. Indeed, a bona fide effort at compliance with the Board’s regulations would seem to require such observations from time to time. Defendant’s witnesses described in detail the operations of the plant and the kind and quantity of air contaminants produced. They also testified concerning the amount of moisture produced by defendant’s operations and the difference in opacity of the emissions when the moisture-producing part of the operation was suspended. Defendant’s evidence tended to show that the Board’s expert witnesses did not fully exclude uncombined water from their readings. This evidence and the cross-examination of the Board’s experts have enabled defendant to make a persuasive argument that the evidence is factually insufficient to support the jury’s finding of excessive opacity, a point that we do not decide because we remand on other grounds.

Moreover, we agree with the State’s argument that to require notice whenever the Board intends to make observations of defendant’s emissions would seriously hinder effective enforcement of the Board’s regulations and would tend to defeat the purposes of the Act. The evidence shows that emissions from defendant’s plant can be varied by controlling the manufacturing process in several respects, and accordingly, that opacity of such emissions can be voluntarily reduced whenever defendant has notice that observations are to be made. Thus, effective detection of violations requires that observations be made without notice. We also agree that surprise inspections are necessary to encourage industries to police their own emissions.

Although we understand the disadvantage to defendant of allowing evidence of observations made without notice, we must weigh the governmental function involved against the private interests affected by that function. Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748-49, 6 L.Ed.2d 1230 (1961). After weighing these factors, we conclude that the burden on defendant to rebut this kind of evidence is not sufficiently great to justify a notice requirement that would seriously hinder detection of violations. Consequently, we conclude the defendant was not deprived of due process. This conclusion is supported by the analogous holding that the constitutional right to freedom from unreasonable searches and seizures is not violated by permitting officers to break unannounced into a suspect’s home if a warning would be likely to result in destruction of evidence. Ker v. California, 374 U.S. 23, 40, 83 S.Ct. 1623, 1633, 10 L.Ed.2d 726 (1963).

IV. Evidence Rulings

(1) Exclusion of Records Concerning Moisture

Defendant contends that the trial court abused its discretion in excluding defendant’s production records, which were offered to show the amount of moisture discharged in its manufacturing process. These records were offered to support defendant’s theory that the opacity shown by the Board’s readings was largely due to uncombined water in the emissions from defendant’s stacks. They contained notations showing the percentage of moisture contained in the felt sheets used in the production process on the dates of the readings taken by the State’s witnesses. Defendant’s evidence showed that moisture removed from these sheets was discharged through its stacks. The only objection to these records was that they had not been disclosed by defendant’s plant manager when his deposition was taken.

On taking the deposition of defendant’s manager, the State’s counsel asked if defendant had “any records showing the exact number of days that you were in operation.” The witness answered, “I’m not sure that we would.” Counsel for the State did not pursue the matter further and did not ask what records defendant kept concerning its production operations. At the trial defendant offered in evidence the records in question, and the State objected on the ground that the quoted answer on the deposition had deprived the State of these records in making its preparations for trial. Out of the presence of the jury the witness explained that he understood the inquiry to concern existence of a log showing specifically how many days the plant had been in operation rather than production records from which such information could be compiled. The witness further testified that, in response to a subpoena at the time of an earlier trial setting, he had brought with him a condensed form of the production records showing the days in which the plant was in operation, but the case was not tried on that setting, and no further request for the information was made. The court sustained the objection and excluded the production records. Counsel for defendant then moved to withdraw his announcement of ready on the ground that exclusion of these records left defendant without actual proof of the exact amounts of moisture discharged in the manufacturing process on the days when the violations were alleged to have occurred. This motion was overruled, and defendant’s only evidence on this matter was the testimony of its manager concerning the average moisture content of the felt sheets.

We conclude that the trial court erred in excluding this evidence. The record shows that the State was not actually deprived of any evidence and was not surprised by any evidence produced by defendant on matters inquired about at the deposition. The information concerning the days the plant was in operation was supplied from other sources, so that the State did not need to offer the excluded records on that point.

The State cites no authority supporting exclusion of evidence under such circumstances. It relies on Railway Express Agency v. Spain, 249 S.W.2d 644, 653 (Tex.Civ.App.—Austin 1952), dism’d as moot, 152 Tex. 198, 255 S.W.2d 509 (1953) in which the trial court had specifically ordered production of the excluded records. When a party refuses to obey an order for the production of evidence, the court is expressly authorized to exclude such evidence by Texas Rules of Civil Procedure, rule 170(b). We need not consider whether the records offered in this case would have been properly excluded if defendant had disobeyed an order for their production. Neither do we need to decide whether they should have been excluded if they had been offered to prove the particular matter inquired about at the deposition, namely, the number of days in which defendant’s plant had been in operation. They were offered on an entirely different matter, the moisture content of the emissions, and only incidentally disclosed the information which the State had inquired about at the deposition.

We are not willing to hold that relevant evidence may be excluded because it has some incidental bearing on a question propounded at a deposition. The right to present evidence material to the disputed issues at a trial is so important that it should not be denied unless the offering party has withheld relevant information that he had a clear duty to produce, and even then the evidence should not always be excluded if the rights of the opposing party can be fully protected. See Employers Mutual Liability Insurance Co. v. Butler, 511 S.W.2d 323 (Tex.Civ.App.—Texarkana 1974, writ ref d n. r. e.). Discovery sanctions should not be used solely to punish an erring party. Cf. Ebeling v. Gawlik, 487 S.W.2d 187 (Tex.Civ.App.—Houston [1st Dist.] 1972, no writ). Consequently, we hold that the trial court abused its discretion in excluding this evidence.

(2) Exclusion of Chaffin’s Opacity-Readings

To rebut the evidence of opacity readings taken by the State’s experts, defendant offered readings taken by its witness Chaffin, an independent expert of defendant’s own selection, who had received the same smoke-reading training which the Board provided for its own experts. Since defendant was not advised of the particular times when the State’s readings were taken, defendant resorted to circumstantial evidence to show that the readings of the State’s experts were inaccurate. For this purpose it offered readings taken by Chaf-fin at other times and under various conditions.

Chaffin’s readings were recorded on forms prescribed by the Board. Some of these were admitted and others were not. Those which were admitted showed readings taken with uncombined water excluded, either because the felt-drying process in the plant had been suspended or because the witness had attempted to read the plume at the point where the uncombined water had dropped out, although he testified he had difficulty determining that point. These exhibits showed opacity percentages within the limits allowed by the regulations. Four additional forms were offered which showed readings taken without any attempt to exclude the uncombined water, and they showed readings comparable to those of the State’s experts. These readings were excluded on the State’s objection that the witness had admitted that these readings contained uncombined water, which, according to the Board’s regulations, should not be included in determining opacity violations.

The objection missed the point of this evidence. Defendant’s principal defense was that the readings of the State’s experts actually included uncombined water notwithstanding their assertions to the contrary. Defendant sought to show that exclusion of uncombined water from the readings was a difficult matter of judgment, that the percentage of opacity was in excess of the maximum allowed only when the uncombined water was not excluded, and that when readings were taken properly by excluding the uncombined water, no violation of the regulations was shown. Defendant was unable to demonstrate this point effectively without introducing the exhibits containing readings which did not exclude the uncombined water and showing their similarity to the readings of the State’s experts. Consequently, we hold that this evidence was admissible and that the court erred in excluding it.

(3) Exclusion of Foster’s Unrecorded Readings

Donald Foster, defendant’s director of environmental control, had been trained in smoke reading by the Department of Health, Education and Welfare. He testified outside the presence of the jury that on three occasions he took readings which showed that defendant’s emissions were in compliance with the Board’s regulations. The State objected to this testimony on the ground that the witness did not “record his observations immediately,” as the Board’s regulations provided. This objection was sustained.

We hold that the court erred in excluding the testimony on this ground. The Board’s regulations may be effective to limit the type of evidence on which it bases its charges of violation, but it cannot control the evidence to be admitted in court to rebut such charges. Foster’s testimony was relevant and material. Lack of immediate recording may affect the weight of the testimony, but not its admissibility.

(4) Evidence of Defendant’s Financial Resources

Sections 4.01(c) and 4.02(a) of the Texas Clean Air Act provide a civil penalty of not less than fifty dollars nor more than one thousand dollars for each day of violation of the Act or of the Board’s regulations. In asserting its claim for maximum penalties under the Act, the State alleged that defendant had total assets in excess of fifty-three million dollars and gross receipts in excess of seventy-one million dollars, and further alleged that with these resources available defendant’s “flagrant and continued violation of the Board’s regulations” required assessment of the penalty of one thousand dollars for each day of violation. Defendant’s exceptions to this allegation were overruled.

At the trial the State offered in evidence defendant’s 1973 Texas Franchise Tax Report, which showed defendant’s total assets to be $53,005,529, of which assets amounting to $1,589,876 were located in Texas and also showed gross receipts in 1973 of $71,-830,361, of which $6,575,452 came from Texas. This evidence was admitted over defendant’s objection that it was immaterial and was offered only to incite the jury to return a verdict based on the assets or income of defendant rather than on facts.

The jury assessed penalties of $750 per day for each day of violation found before January 1,1974, and assessed the maximum of one thousand dollars per day for each day of violation found to have occurred after that date. These penalties aggregated $19,750.

The State does not contend that the evidence of defendant’s financial resources did not affect the jury’s assessment of penalties. On the contrary, the Attorney General espouses the “deep pockets” theory of recovery in this context and insists that this evidence was admissible to enable the jury to fix a penalty, within the broad range allowed by the Act, which would deter defendant and others from future violations and still would not force defendant into bankruptcy. Consequently, the question presented is whether the evidence is relevant to the issue of penalties.

We conclude that any logical relevance of defendant’s total assets and gross receipts to the amount of the penalties is slight and is more than offset by its prejudicial effect. This kind of evidence is likely to divert the jury’s attention from the gravity of the violation and focus it on the defendant’s finances. It encourages the jury to fix maximum penalties against a large industrial enterprise and to let a small operator escape with the minimum, regardless of the nature of the violation or its effect on the community. Even though some kind of information concerning defendant’s financial situation might conceivably be material, we do not see the relevance of the value of defendant’s assets generally or its receipts from operations at other locations. If the operation at Irving is marginal, a relatively small penalty might be sufficient to deter future violations. On the other hand, even if defendant had no operations elsewhere, a substantial profit at Irving might permit defendant to absorb a relatively high penalty or pass it on to its customers. Moreover, the value of defendant’s assets does not accurately show its wealth without evidence of liabilities. Neither does the amount of its gross receipts establish whether the business was operating at a profit or at a loss. Although defendant could offer evidence in rebuttal on these matters, we do not think it should be required to do so. Evidence of defendant’s general financial condition is remote from the issues and should not be presented to the jury in the absence of other evidence showing its relevance to the particular violation charged. Wealth in itself is not material in assessing penalties. The rich as well as the poor are entitled to equal justice under the law.

We do not hold, however, that no evidence concerning defendant’s economic circumstances would be admissible. A different question would be presented, for instance, if evidence were offered of defendant’s revenues from the particular plant in question and the profits resulting from defendant’s operation of that plant in violation of the Board’s regulations. Conceivably, such evidence might be relevant to show the gravity of the violation and the magnitude of the penalty necessary to deter future violations.

The State relies on authorities from other jurisdictions holding that the wealth of the defendant may be considered in assessing exemplary damages, and it criticizes Texas cases, such as Texas Public Utilities Corp. v. Edwards, 99 S.W.2d 420, 427 (Tex.Civ.App.—Austin 1936, writ dism’d) which have adopted the contrary view. We need not consider whether the same principles apply to civil penalties as to exemplary damages, since we are persuaded, for the reasons above stated, that evidence of economic factors offered to guide the jury’s assessment of civil penalties should be directly related to the particular violation alleged.

(5) Defendant’s 1969 Application for Variance

The court admitted over defendant’s objection an application for variance which defendant filed with the Board on June 27,1969, under § 3.21 of the Act. This application describes the emissions for which the variance is sought as a “white plume” and gives the date by which the applicant will be in compliance with the Board’s regulations as “approximately one year.” The application further recites:

We are at the present time experimenting with a pilot plant at Detroit, Michigan, and we are having success with same, however it will be approximately one year from this date before we are completely satisfied that it will control fumes, odors, particulate matter & opacity-

After this document was admitted in evidence, the State called defendant’s environmental-control director to the stand and asked if any pollution-control equipment had been installed at the plant after the application for variance was filed. He answered, “Not to my knowledge. It was before my time with the company.”

The State argues that this document was an admission that the operation of the plant was not in compliance with the Board’s regulations in 1969, and that failure of defendant to produce evidence of any difference in the operations of the plant since that time raises a presumption that the operation was unchanged.

We disagree. The application for variance was filed almost three years before any of the occasions on which violations are charged. It does not expressly admit a violation or specify any particular regulation with which defendant was not then in compliance. We are not persuaded that it should raise a presumption that defendant was in violation of the Board’s opacity regulations three years later. Before such evidence is admitted, the State should, at least, be required to show that the conditions of operation were substantially the same. In the absence of such evidence, the application should have been excluded.

Judgment

The judgment of the trial court for penalties and for injunctive relief for failure to provide stack-sampling facilities is reversed, and the action is dismissed with respect to that claim. The judgment for penalties and for injunctive relief for violation of the Board’s opacity regulations is reversed, and the action in that respect is remanded for a new trial.

      . Cf. Exodus 30:15: The rich shall not give more, and the poor shall not give less than half a shekel, when they give an offering unto the Lord, to make an atonement for your souls.