author: SANDERS, Judge.

text:
    Thomas G. DANIELS and wife, Oma P. Daniels v. COMBUSTION ENGINEERING, INC. et al.
    Court of Appeals of Tennessee, Eastern Section.
    Nov. 28, 1978.
    Certiorari Denied by Supreme Court May 7, 1979.

      Paul T. Gillenwater, Ward S. Whelchel, Jr., and H. Douglas Nichol, Knoxville, for appellants.
    Fred H. Cagle, Jr., Knoxville, for Johns-Manville Sales Corp.
    William D. Vines, III, Knoxville, for Celo-tex Corp.
    Robert R. Campbell, Knoxville, for Owens Corning Fiberglass Corp.
    Louis C. Woolf, Knoxville, for Pittsburgh Corning Corp.
   OPINION

SANDERS, Judge.

Plaintiffs have appealed from an adverse jury verdict in their products liability suit against a number of manufacturers of asbestos-related insulation materials.

Plaintiff-Appellant, Thomas G. Daniels, was, for a number of years, a professional installer of insulation materials. He was employed primarily by contractors to install insulation in commercial and industrial buildings between 1965 and 1977. The materials with which he worked and installed were asbestos-related insulation materials manufactured and distributed by the Defendants. The Plaintiff contracted an occupational disease known as asbestosis. This develops from breathing asbestos dust over a period of time. Asbestos dust is composed of small sharp fibers which settle into the air sacs in the lungs. This results in inflammation and scarring of the lungs. The respiratory system is affected and, depending on the severity of the case, may range from slight or no disability to death. The Plaintiff’s case was considered mild.

The Plaintiff sued the Defendant, Combustion Engineering, Inc., and 16 other Defendants who manufacture and sell asbestos-related insulation materials which had been used by him. Plaintiffs predicated their suit on the theory of products liability. Plaintiff’s wife, Orna P. Daniels, also sued for loss of consortium. Plaintiffs contended the insulation products were defective and unreasonably dangerous under 402A, Restatement of Torts, in that they were placed on the market defectively designed; they contained a hazardous material (asbestos); and/or they were defective by reason of inadequate warning of the hazard.

Defendants denied their products were defective and unreasonably dangerous. They denied they directly or proximately caused the Plaintiff’s injury. They relied upon the affirmative defenses of the statute of limitations, assumption of the risk and intervening cause. They further contended that the “state of scientific knowledge” was such they did not know, nor could have known, of the hazards to insulation workers prior to 1964.

The case was dismissed as to all but four of the Defendants prior to final determination of the case.

The case was tried before a jury which found the issues in favor of the Defendants. Plaintiffs’ motion for a new trial was overruled and they have appealed and assigned error.

Plaintiffs’ first assignment of error is: “The Trial Court erred in refusing to allow testimony or reference to the relationship of asbestosis and asbestos exposure to different cancers, cor pulmonale, and mesothe-lioma.”

Prior to the trial the Plaintiffs filed a motion to allow the introduction of testimony regarding association between asbestos and cancer. The Defendants, in turn, filed a motion to exclude such testimony. The Court ruled such testimony should be excluded, and we concur.

The Plaintiffs advance four reasons why the testimony should have been admitted, but they present only two categories — one pertains to damages and the other relates to the duty to warn of a known danger beyond that contemplated by the ordinary purchaser. Plaintiffs say the testimony should have been admitted since: (1) “Such evidence would show the mental distress or anguish incident to physical trauma as a compensable item of damages.” (2) “The increased risk of cancer in persons who have asbestosis requires they be closely monitored by medical personnel for the remainder of their lifetime and the increased cost of this medical service would be a legitimate item of expense and subject to proof."

If we assume the contention of the Plaintiffs is correct, this would go only to damages. Since the jury resolved the question of liability in favor of the Defendants, it would, at most, be harmless error.

Plaintiffs further say: (3) “Section 402(a), Restatement of Torts, Second, and cases interpreted, indicate that a test regarding the dangerousness of a product is whether the utility of such product outweighs the harm it could cause,” and (4) “The fact that defendants’ product contained an ingredient which was likely to cause cancer, . . . increases and heightens the duty to warn and would, in effect, have a greater bearing upon the type of warnings that should be given.”

This insistence by the Plaintiffs is in contradiction and inconsistent with their argument in support of their fourth assignment of error. There they say, “The plaintiffs did not rely upon the failure of defendants to warn of the dangers of their products in order to establish that the product was defective and unreasonably dangerous.”

It is the rule in this jurisdiction that a plaintiff cannot take a position on appeal inconsistent with that taken in the trial of the case. Simpson v. Harper, 21 Tenn.App. 431, 111 S.W.2d 882; Carr v. Wilbanks, 45 Tenn.App. 372, 324 S.W.2d 786.

The Plaintiffs make no contention that he has cancer. He has only a mild case of asbestosis and we therefore see no relevancy between his injuries and cancer. To have admitted the evidence could have served only to prejudice the jury.

Plaintiffs’ second assignment is: “The Trial Court erred in refusing to allow the admission of the two depositions of Dr. Kenneth Wallace Smith, deceased, former Medical Director of the defendant, Johns-Manville Sales Corporation.”

Prior to the trial of the case the Plaintiffs filed a motion asking to file two depositions of Dr. Smith as evidence. One of the depositions had been taken in January, 1976, in the case of James Roy DeRocco, et al. v. Forty-Eight Insulation, Inc., a Corporation, et al. The case was filed in the Court of Common Pleas of Allegheny County, Pennsylvania. The other deposition was taken in April, 1976, in the case of Louisville Trust Company, Administrator of the Estate of William Virgil Sampson v. Johns-Manville Corporation. This suit was in Louisville, Kentucky. ' In his motion to admit the depositions the Plaintiff said: “That in DeRocco and Sampson, defendant, Johns-Manville, was given the opportunity to cross-examine the deponent and that the issues in both DeRocco and Sampson are identical to the issues in the case at bar, i. e., what defendant, Johns-Manville, did or did not know relative to the hazards of inhalation of asbestos by the ultimate user of the products. Dr. Kenneth Wallace Smith was employed by defendant, Johns-Manville, from the mid-1940’s through 1966 and beginning in 1952 until his termination, was the corporate Medical Director of defendant, Johns-Manville; that in July, 1977, Dr. Kenneth Wallace Smith died.

“Plaintiff submits that the depositions of Dr. Kenneth Wallace Smith are admissible as to Johns-Manville pursuant to 27.03(2) and 26.04(3) of the Tennessee Rules of Civil Procedure and because: (1) the issues in the present case involve the same subject matter and' were admissible in the courts of Pennsylvania and Kentucky, respectively; (2) the witness is deceased; (3) the person against whom the deposition is sought to be introduced was given ample opportunity to cross-examine the witness; and (4) exceptional circumstances exist that justice dictates that introduction should be allowed, i. e. Dr. Smith was present during the time critical decisions were made concerning asbestos health hazards to ultimate users and others.”

The Plaintiffs rely upon Rule 26.04(3) and 27.03(2), T.R.C.P., as support for their contention that Dr. Smith’s deposition was admissible.

We fail to find these rules in point. Neither of them applies to a deposition offered as evidence in a suit filed subsequent to its taking.

Plaintiffs also cite as authority for their contention the case of In Re Estate of Rhodes, 222 Tenn. 394, 436 S.W.2d 429 (1968).

This case is distinguishable from the case at bar in that the testimony in question was give in a former trial of the same case.

Plaintiffs also cite 29 Am.Jur., Evidence, § 738, as authority for their contention.

We fail to see where this section of Am. Jur. lends much support to Plaintiffs’ contention, since it stands for the proposition that before testimony of a witness in a former proceeding can be admitted the second action must be between the same parties or their privies and involve the same issues. We have been cited to no cases, nor have we found any in this jurisdiction, exactly in point on the issue here involved. However, the general rule appears to be stated as follows:

“There is authority that the use of depositions is limited to the suit in which they are taken; but, as a general rule, depositions regularly taken in a former suit are admissible in a subsequent suit, involving the same question or subject matter between parties who are the same or in privity. The admissibility of such depositions is not, however, dependent on exact identity of parties and cause of action, but rather on identity of the question being investigated and on the opportunity of the party, against whom the deposition is offered, to examine or cross-examine.
“The following may be considered as the usual tests by which to determine whether a deposition taken in one cause can be read as evidence in another: First, the parties must be the same or in privity; second, the issues in the case must be the same, or the question in controversy must be the same; third, that, had the testimony been different, it would have been prejudicial to the party introducing it; fourth, that the judgment and verdict rendered in one case would be evidence in the other; and fifth, the legal existence of the first suit.
“The general rules above laid down have been held applicable, notwithstanding the fact that one suit is at law and the other in equity. Because a deposition has been taken regularly in a former cause between the same parties, it does not necessarily follow that such fact of itself is a sufficient reason for admitting such deposition in evidence in a subsequent cause between the same parties; there should be some showing of the death, absence, or disability of the witness whose deposition is desired. The competency of the testimony in such deposition must be determined in the case in which it is offered; and the admission of depositions taken in a former suit between the same parties is a matter somewhat within the discretion of the court, and one which will not be reviewed unless there has been a palpable abuse of the discretion as exercised.” 26A C.J.S. Depositions § 98, p. 452.
This rule is further amplified as follows: “It has frequently been stated that in order to render admissible on a subsequent trial the former testimony of a witness who has since become unavailable, there must be a substantial identity between the parties to the first and the parties to the subsequent action or proceeding. Accordingly, in many cases the former testimony of a witness has been held inadmissible for lack of substantial identity of parties, even though the other conditions prerequisite to admissibility have been met.
“The requirement as to the identity of parties is satisfied by the existence of the relation of privity, such as that predicated on relationships arising from connection with a decedent’s estate or out of interests in property, or the relationship of principal and surety or of successive plaintiffs in actions for wrongful death, the word ‘privity’ being used, more or less strictly, in somewhat the same sense as it has in the field of property law. ‘Identity of interest,’ as distinguished from strict ‘privity,’ is held in some cases to satisfy the rule requiring identity of parties. In still other cases it has been held that there must be ‘reciprocity’ or ‘mutuality’ as a prerequisite to the admission in evidence of former testimony; that is, former testimony by a witness already cross-examined by B cannot now be offered by A against B unless B could now have offered it against A.” 29 Am. Jur.2d, Evidence, § 744, p. 813.

The criteria set out above are not met in the case at bar in that there are different plaintiffs and there is no privity between them nor is there any way we can determine from the record before us that the issues involved are the same. Also, we cannot say that the Trial Court abused his discretion in rejecting the evidence. Plaintiffs’ second assignment is overruled.

Plaintiffs’ third assignment is: “The Trial Court erred in charging the jury as to the defense of ‘unavoidably unsafe product.’ ”

The portion of the Court’s charge about which the Plaintiffs complain is as follows: “And, of course, Ladies and Gentlemen, there are some products, which in the state of human knowledge at the time of manufacture are incapable of being made safe for their intended and ordinary use. Products of this kind are not, for the purposes of strict liability, unreasonably dangerous if proper warnings are given.”

We cannot agree this was error. It is an accurate statement of the law applicable to the case.

It was the contention of the Plaintiffs the Defendants marketed insulation products which were defective and unreasonably dangerous under 402A of the Restatement of Torts. The Defendants’ products were defective in that they contained a hazardous material and were hazardous by reason of inadequate warning of the hazards.

Comment “k” under § 402A states: “Unavoidably unsafe products. There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. . Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. . . . The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.”

The Plaintiffs argue the Court’s charge was improper because the defense of “unavoidably unsafe products” is an affirmative defense which must be specifically pleaded. The Defendants did not assert it as an affirmative defense and the charge was therefore improper.

While it is possible the defense of “unavoidably unsafe products” might be an affirmative defense, where, as in the case at bar, the plaintiff, in his complaint, charges the defendants with failure to warn, the defendants only need to deny the complaint, as the Defendants did.

The question of “unavoidably unsafe product” had been placed squarely in issue by both the pleadings and the proof. It therefore became the duty of the Court to charge on this issue. See Cole v. Woods, 548 S.W.2d 640, Tenn. (1977).

Plaintiffs’ fourth assignment is: “The Trial Court erred in allowing testimony in a strict liability action as to the ‘state of the art’ or the ‘state of scientific knowledge.’ ”

Plaintiffs argue in support of this assignment that it was error for the Court to overrule their motion to strike the testimony of Dr. Paul Kotin. The deposition of Dr. Kotin had been taken by the Defendants. It consisted of approximately 250 pages and covered a variety of issues in the case. Prior to the trial the Plaintiffs filed a motion to strike this testimony. The basis of the motion was that the testimony was irrelevant and immaterial due to the fact the thrust of it is directed to the knowledge Defendants had or should have had relative to the hazards of asbestos. Plaintiffs stated they did not rely upon comment (j) of' the Restatement of Torts to establish the defectiveness of the product. Upon the trial of the case the deposition of Dr. Kotin, except portions pertaining to cancer, was read into evidence.

Plaintiffs fail to cite us to the portion of this testimony which they consider is improper. Therefore, this assignment cannot be considered since the Plaintiffs have failed to comply with Rule 12(3) of the Court, which provides: “Where the error alleged is to the admission or rejection of evidence, the specification shall quote the substance of the evidence admitted or rejected with citation of record where the evidence and ruling may be found, but full quotation of the evidence admitted or rejected is not required.”

Plaintiffs’ assignments of error are overruled. The judgment of the Trial Court is affirmed and the cost of this appeal is taxed to the Appellants.

PARROTT, P. J. (E.S.), and FRANKS, J., concur.


source: Caselaw Access Project

author: DALLY, Judge.

license: Public Domain

text:
    Ex parte Barry L. HUFF.
    No. 61451.
    Court of Criminal Appeals of Texas, En Banc.
    July 18, 1979.
    Michael L. Tobin, Huntsville, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

DALLY, Judge.

This is a post-conviction writ of habeas corpus proceeding under the provisions of Art. 11.07, V.A.C.C.P.

The petitioner was convicted for the offense of forgery. The punishment, enhanced by proof that the appellant had been convicted of two prior felony convictions, is imprisonment for life.

The petitioner urges that the indictment on which he was convicted is fundamentally defective because it fails to allege all of the elements of the offense of forgery. A fundamentally defective indictment may be collaterally attacked in a post-conviction habeas corpus proceeding. Ex parte Page, 563 S.W.2d 822 (Tex.Cr.App.1978).

The indictment on which the petitioner was convicted alleges that the petitioner “ . . . on or about July 8, 1974, did then and there unlawfully with intent to defraud and harm, forge, by making a writing as follows: . . . ” Then attached to the indictment is the photographic copy of a check, the alleged forged instrument.

The petitioner urges that since the indictment fails to allege that the purported maker of the check did not authorize the act, it fails to allege a necessary element of the offense. He relies on Minix v. State, 579 S.W.2d 466 (Opinion on the State’s Motion for Rehearing) (Tex.Cr.App.1979). In that case we said:

“The element of forgery under Art. 797, V.A.P.C. (1925) of ‘without lawful authority’ has been brought forward in V.T. C.A., Penal Code Sec. 32.21(a)(l)(A)(i), which requires that the purported maker ‘did not authorize the act’ of making the writing .
“Although this prosecution was not for forgery by making under Sec. 32.-21(a)(1)(A), it was brought for forgery by possession with intent to utter under Sec. 32.21(a)(1)(C), which by reference expressly incorporates the elements of Sec. 32.21(a)(1)(A) and (B). Simple use of the word ‘forge’ in the indictment is insufficient to incorporate by reference the missing element.”

Minix v. State, supra, is controlling and requires that we reverse the judgment in this cause. See also Landry v. State, 583 S.W.2d 620 (1979). The judgment is reversed and the prosecution under this indictment is ordered dismissed.


author: WILLIAM J. CORNELIUS, Commissioner.

text:
    Freddie G. SWAIN, Appellant, v. The STATE of Texas, Appellee.
    No. 55946.
    Court of Criminal Appeals of Texas, Panel No. 3.
    July 18, 1979.
    David Van Os, Austin, for appellant.
    Ronald P. Earle, Dist. Atty., and Richard E. Banks, Asst. Dist. Atty., Austin, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS and TOM G. DAVIS, JJ., and CORNELIUS, C.
   OPINION

WILLIAM J. CORNELIUS, Commissioner.

Appellant was convicted of burglary of a habitation. Punishment, enhanced pursuant to V.T.C.A., Penal Code, Section 12.-42(d), was set at life imprisonment.

At about 11:45 p.m. on August 15, 1975, residents who lived near the house in question observed an automobile stop under a street light. They then saw two men leave the automobile and walk up the street north bound. The men then crossed the street to the west and disappeared down a driveway adjacent to the residence in question. As they walked along the street, one of the men was seen carrying something about ten to twelve inches long in a plastic bag that looked like a tire tool in a lady’s stocking. At least two of the residents identified appellant as one of the two males. Being called to the scene on a suspicious vehicle report describing the automobile as a white Buick, police officers were unable to locate a vehicle of that description, but were pointed to a grey Oldsmobile and received other information that caused them to walk north to the residence in question adjacent to the driveway where the two males were last seen. The officers knocked on the front door of the residence and received no response. They then returned, conferred further with the observers, and then went over and examined the grey Oldsmobile. The officers then returned north to the residence, and in the company of a neighbor, went down the driveway over a chain link fence on the south side of the residence and into the backyard area. One of the officers then noticed a figure, later identified as appellant, crouched by some outside stairs leading to an overhanging porch. The other officer and a civilian approached a lower patio door below the stairs as the first officer went around the western portion of the stairway. They heard the first officer call out, and when they turned around, they saw him struggling with the appellant. The civilian testified that he saw the appellant come off the staircase from about half way down it. No other witness testified to having seen the appellant anywhere on the premises, and no witness testified to having seen appellant inside the residence building. Later inspection of the premises revealed that the door to the residence was open, there was a mark on the door, a television set was in the doorway, and a television set was in the backyard of the residence with a tire tool next to it. When appellant was apprehended he had a man’s sock on one of this hands. Appellant signed a written statement which, after a Jackson v. Denno hearing, was admitted into evidence. In it he stated that he had burglarized the house but that he used “no force, just pull back the door and I had tools I didn’t even use.” The defense attempted to show that the confession was unreliable because of appellant's extreme intoxication from alcohol and narcotics at the time of the offense and even up to the time the statement was given.

In its main charge the trial court instructed the jury that “A habitation is a structure or vehicle that is adapted for the overnight accommodation of persons.” The jurors were further instructed that unless they believed beyond a reasonable doubt that appellant knowingly and intentionally entered a habitation without the effective consent of its owner and there committed or attempted to commit theft, they must acquit appellant. After the jurors had deliberated for some time, they presented two written questions to the trial court. The first asked where the officers apprehended appellant. It was not answered. The second inquired: “Please define habitation more explicitly for us. We would like to know if the steps are considered part of the habitation? The yard?” In response to that question the court gave the following supplementary instruction:

“You have asked for a more explicit definition of habitation. The Court charges you as follows:
‘Habitation’ means a structure or vehicle that is adapted for the overnight accommodation of persons and includes:
A. each separately secured or occupied portion of the structure or vehicle; and
B. each structure appurtenant to or connected with the structure or vehicle.”

Appellant’s counsel objected in writing to the supplementary instruction on the grounds that (1) it was misleading and would permit the jurors to find appellant guilty of burglary if they should believe that he only entered the unenclosed stairway attached to the house; (2) the definition was so vague and ambiguous as to be constitutionally “infirm”; and, (3) the court should have charged the jury that the unenclosed stairway and the yard are not portions of the habitation.

We do not believe that the Legislature, in enacting Sections 30.01 and 30.02 of the Penal Code, intended to expand the concept of burglary of a habitation to include an entry upon an unenclosed and unsecured stairway attached to a residence. Compare Day v. State, 534 S.W.2d 681 (Tex.Cr.App. 1976). Yet the supplemental instruction defining habitation as each structure appurtenant to or connected with a structure or vehicle adapted for the overnight accommodations of persons was, without more, calculated to lead the jurors to believe that such an entry would constitute the offense, especially when the instruction is considered together with the jurors’ questions specifically inquiring if the stairs were to be considered a part of the habitation.

It is true that the supplemental instruction was in the exact words of the statute, and that is ordinarily sufficient. But it is also true that an accused is entitled to an affirmative instruction on every defensive theory raised by the evidence, whether the evidence is produced by the state or by the defendant, and whether it be strong, weak, unimpeached or contradicted. Day v. State, 532 S.W.2d 302 (Tex.Cr.App. 1976); Thompson v. State, 521 S.W.2d 621 (Tex.Cr.App. 1974); Shaw v. State, 510 S.W.2d 926 (Tex.Cr.App. 1974). And in determining whether such a charge should be given, the credibility of the evidence raising it or contradicting it may not be considered. Gavia v. State, 488 S.W.2d 420 (Tex.Cr.App. 1972).

In this case the testimony of the state’s witnesses showed only that appellant was on the stairway or on the ground in the yard. The affirmative defense that appellant entered only the yard or the stairway was thus raised by some evidence. As appellant properly objected and called the court’s attention to the need of a charge that the mere entry upon the stairway alone would not be burglary of a habitation, he was entitled to have such a charge given. Compare Foyt v. State, 135 Tex.Cr.R. 664, 122 S.W.2d 641 (1938); Elliott v. State, 109 Tex.Cr.R. 270, 4 S.W.2d 61 (1928). See also Gober v. State, 127 Tex.Cr.R. 304, 76 S.W.2d 518 (1934); Randolph v. State, 117 Tex.Cr.R. 80, 36 S.W.2d 484 (1931); Duke v. State, 42 Tex.Cr.R. 3, 57 S.W. 652 (1900). The failure to give the charge was calculated to mislead the jury to appellant’s prejudice and requires a new trial.

The judgment of the trial court is reversed and the cause is remanded.


author: CLINTON, Judge. DALLY, Judge,

text:
    Willie Henry McCLENDON, Appellant, v. The STATE of Texas, Appellee.
    No. 56993.
    Court of Criminal Appeals of Texas, Panel No. 3.
    July 18, 1979.

      Jon Mercer, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus, and Dennis C. Cain, Asst. Dist. Attys., Houston, and Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

The conviction was for murder without malice, and the sentence was assessed at 5 years. The controlling issue presented in this case is governed by the Double Jeopardy Clause of the Fifth Amendment.

Appellant was originally indicted in 1971 for the murder of “Mose Dineal” by an indictment numbered “158-786.” Trial was held in October of 1971, conviction ensued, and appeal was brought before this Court. One ground of error presented in that appeal was that the victim’s name was “Mose Dineal Howard,” and that the evidence was not sufficient to show that he was also known as “Mose Dineal” as alleged in the indictment. That contention was rejected because the victim’s wife had testified that the deceased was known by both names. The case was reversed, however, on other grounds. See McClendon v. State, 509 S.W.2d 851 (Tex.Cr.App.1974).

After the mandate for reversal was received from this Court, the case was set for a new trial on April 7, 1975. Both sides announced ready, and the jury was selected. Appellant pleaded to the indictment, and the State began presenting evidence from its witnesses. During the course of the trial the State discovered that it did not have any witness present who could testify that the deceased was known by the name alleged in the indictment. The victim’s wife was in Louisiana, and no effort had been made to bring her to the trial. For that reason the State moved to dismiss, and the trial court granted the motion.

Appellant was reindicted on April 14, 1975, for the same offense. His counsel filed a plea in bar of prosecution and a motion to dismiss on the ground that appellate was being subjected to double jeopardy. The motion was denied, and appellant was convicted in a trial before the court.

The Double Jeopardy Clause prohibits “multiple punishments and multiple prosecutions by a single sovereign for a single offense.” The policy promoted by the Clause was described in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) as follows:

“The underlying idea, one that is deeply ingrained in at least the Anglo-Saxon system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal, and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Id. at 187-188, 78 S.Ct. at 223.

The first question to be decided in each case is when jeopardy “attaches.” Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). More specifically, the question in this case is whether appellant at the time the trial court granted the State’s motion to dismiss had already been placed once in jeopardy, thereby prohibiting further prosecution for that offense.

In Crist v. Bretz, supra, the United States Supreme Court held “the federal rule that jeopardy attaches when the jury is empaneled and sworn is an integral part of the constitutional guarantee against double jeopardy.” The decision mandates that appellant had been placed in jeopardy at the time the State’s motion to dismiss was granted. However, the inquiry does not end at that point. Even though jeopardy attaches, a trial court may be justified in granting a retrial:

“[T]he law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824).

Perez involved a hung jury, and the Court held that a retrial was not prohibited. Other situations constituting “manifest necessity” have included a prejudicial opening statement by defense counsel, a “jurisdictional” defect in an indictment, and a trial judge’s improper inference to a jury concerning a prosecutor’s conduct.

In our view the controlling decision is Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1962). That case involved a federal prosecution for seven counts of theft from the mail. The trial proceeded as far as completion of jury selection when the prosecution discovered that its key witness on the sixth and seventh counts was not present. At the prosecutor’s request, and over the defendant’s objection, the trial court discharged the jury. Two days later a trial was had on the same charge, and the defendant was convicted. The Court reversed because the defendant had been twice placed in jeopardy-

The opinion specifically refused to say that the absence of a prosecution witness will never justify discontinuance of a trial. Instead the Court held that “[e]ach case must turn on its own facts.” Id. at 737, 83 S.Ct. at 1035. However, the majority opinion quoted from Cornero v. United States, 48 F.2d 69 (9 Cir. 1931), for what it called the “governing principle” in such cases:

“The fact is that, when the district attorney impaneled the jury without first ascertaining whether or not his witnesses were present, he took a chance. While their absence might have justified a continuance of the case in view of the fact that they were under bond to appear at that time and place, the question presented here is entirely different from that involved in the exercise of the sound discretion of the trial court in granting a continuance in furtherance of justice. The situation presented is simply one where the district attorney entered upon the trial of the case without sufficient evidence to convict. This does not take the case out of the rule with reference to former jeopardy.” (Emphasis added). Downum, 372 U.S. at 737, 83 S.Ct. at 1035.

The facts of the case before us are materially the same as in Downum. The State went to trial without a necessary witness. The trial court is given discretion in such situations as to the granting of a State’s motion for a continuance. See, e. g., Ashabranner v. State, 557 S.W.2d 774 (Tex.Cr.App.1977). No continuance was requested in this case. In fact, by its own admission the State made no attempt to secure the witness before trial. No “manifest necessity” is presented which would justify subjecting appellant to jeopardy twice. Indeed, in Arizona v. Washington, supra note 2, the Supreme Court reaffirmed that unpreparedness on the part of the prosecution would require “the strictest scrutiny” of the dismissal of a trial. 98 S.Ct. at 832.

The State contends that appellant has the burden of showing that his right against double jeopardy was violated. Further, the State argues that appellant failed to meet that burden because there is no affirmative showing in the record that appellant did not consent to the discharge of the jury on the State’s motion. The authorities cited for this proposition are Wockenfuss v. State, 521 S.W.2d 630 (Tex.Cr.App.1975); Ward v. State, 520 S.W.2d 395 (Tex.Cr.App.1975).

We feel that the Ward decision best stated the test: “The burden was on appellant at the second trial to go forth with evidence in support of his allegation of former jeopardy.” (Emphasis added). Ward, at 398. In that case the defendant was convicted and sentenced before the trial court granted a second motion for a new trial based on a fundamental defect in the indictment. The evidence showed that the granting of the motion for new trial occurred before the trial judge lost jurisdiction over the case by sending the appellate record to this Court. We made two conclusions: (1) jeopardy did not attach because of the fundamentally defective indictment; and (2) appellant failed to bring any evidence forward showing that the motion for new trial was improperly granted. The Wockenfuss case was similar in that the defendant claimed that he had been previously convicted for the same offense. We noted that no evidence was presented on that issue until the appeal, and then the only evidence relied on was an entry on the docket sheet that the defendant was set for “sentencing” before the indictment was dismissed. However, there was no entry indicating that any trial had been held, and the only other entry on the docket sheet stated that the defendant had jumped bail. We held the evidence insufficient for a finding of double jeopardy-

Appellant’s case is entirely different. Before trial on the new indictment began, appellant’s counsel filed a plea in bar of prosecution setting out all the facts leading to his claim of double jeopardy. A supporting brief of authorities was also filed. A hearing on the motion was held before trial which constitutes approximately 27 pages of the statement of facts. Appellant called three witnesses. The first was David Gaul-den, a deputy district clerk for Harris County. The second was Dennis Cain, an assistant district attorney from Harris County. Third, appellant’s counsel testified in narrative form. Those witnesses established/the uncontested facts set out in the beginning of this opinion. Those facts are sufficient to establish a case of former jeopardy. It would be unreasonable to require the appellant to prove a negative, that he did not agree to the dismissal. The State had ample opportunity at the hearing on the motion to introduce such evidence, but did not do so. Once appellant went forward with sufficient evidence to establish a claim of double jeopardy, the burden was on the State to prove that appellant consented to the State’s motion to dismiss.

For these reasons the judgment is reversed and the cause is ordered dismissed.

DALLY, Judge,

concurring.

The prosecuting attorney should have been aware of our prior opinion in this case, McClendon v. State, 509 S.W.2d 851 (Tex.Cr.App.1974), and of the need to either secure the necessary witness or to reindict. Moreover, when the prosecuting attorney did recognize his untenable position, he did not seek a continuance or attempt to lay a predicate for the admission of the witness’ testimony at the original trial. See Raley v. State, 548 S.W.2d 33 (Tex.Cr.App.1977); Galvan v. State, 461 S.W.2d 396 (Tex.Cr.App.1970). Under the circumstances, I must agree that there was no manifest necessity to dismiss the April 7, 1975, proceeding. Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1962); Pizano v. State, 20 Tex.App. 139 (1886).

I write separately to emphasize that while a dismissal due to the absence of a prosecution witness is subject to strict scrutiny when determining whether a subsequent prosecution is barred by jeopardy, there is no mandatory rule; each case must turn on its own facts. In Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949), the United States Supreme Court, through Mr. Justice Black, spoke as follows:

“We are urged to apply the Cornero [v. United States, 48 F.2d 69 (9th Cir. 1931)] interpretation of the ‘urgent necessity’ rule here. We are asked to adopt the Cornero rule under which petitioner contends the absence of witnesses can never justify discontinuance of a trial. Such a rigid formula is inconsistent with the guiding principles of the [United States v.] Perez [22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824)] decision to which we adhere. Those principles command courts in considering whether a trial should be terminated without judgment to take ‘all circumstances into account’ and thereby forbid the mechanical application of an abstract formula. The value of the Perez principles thus lies in their capacity for informed application under widely different circumstances without injury to defendants or to the public interest.” 336 U.S. at 691, 69 S.Ct. at 838.

Also, not only had the jury been sworn but the appellant had entered his plea and evidence had been received when the State’s, motion to dismiss was granted. Under the holding of this Court prior to Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978), jeopardy had attached. Ochoa v. State, 492 S.W.2d 576 (Tex.Cr.App.1973); Rameriz v. State, 171 Tex.Cr.R. 507, 352 S.W.2d 131 (1961).

I concur in the reversal of the judgment.

      . Beeny, Double Jeopardy Consequences of Mistrial, Dismissal and Reversal of Conviction on Appeal, 16 Am.Crim.L.Rev. 235 (1979).

      . Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).

      . Iliinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973).

      . Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961).


author: CORNELIUS, Commissioner.

text:
    Charles Ray NEW, Appellant, v. The STATE of Texas, Appellee.
    No. 57031.
    Court of Criminal Appeals of Texas, Panel No. 3.
    July 18, 1979.

      Steven G. Condos, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Fred C. McDaniel, Paul D. Macaluso and Rider Scott, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS and TOM G. DAVIS, .JJ., and CORNELIUS, Commissioner.
   OPINION

CORNELIUS, Commissioner.

The conviction was for robbery. Punishment, enhanced by reason of a prior conviction, was set at thirty-five years’ confinement. The sufficiency of the evidence is not challenged.

In his first ground of error appellant contends that his motion to quash the enhancement portion of the indictment should have been granted because, in the conviction alleged for enhancement, the sentence was pronounced the same day that judgment was rendered, and he did not knowingly and intelligently waive the ten days allowed him between judgment and sentence as required by Article 42.03, V.A. C.C.P. This contention is without merit. Even if the ten day waiting period was not knowingly and intelligently waived, the premature pronouncement of sentence constitutes only an irregularity in the proceeding which renders it voidable rather than void. Such an irregularity may be used to challenge the conviction only in a direct attack, and it may not be used to collaterally attack the judgment. Ex Parte Shields, 550 S.W.2d 670 (Tex.Cr.App.1976); Lewis v. State, 501 S.W.2d 88 (Tex.Cr.App.1973).

Appellant’s other ground of error concerns certain comments made by state’s counsel in his jury summation at the guilt-innocence stage of the trial. We have carefully considered the comments and find that they constituted reasonable deductions from the evidence. Furthermore, appellant’s counsel did not pursue his objection thereto to an adverse ruling. No error is shown.

The judgment of the trial court is affirmed.


author: TOM G. DAVIS, Judge.

text:
    Linda BRANHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 58077.
    Court of Criminal Appeals of Texas, Panel No. 2.
    July 18, 1979.

      R. William Wood, Denton, for appellant.
    Jerry Cobb, Dist. Atty., Bruce P. Baxter, and Gary Patton, Asst. County Attys., Den-ton, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for involuntary manslaughter. V.T.C.A. Penal Code, Sec. 19.05(a)(1). After returning a verdict of guilty, the jury assessed punishment at ten years and a $5,000 fine.

In her first ground of error, appellant contends that the trial court erred in failing to charge the jury on the offense of criminally negligent homicide. Appellant had been indicted for the offense of murder. The trial court charged the jury on the law of murder, involuntary manslaughter, justification, mistake of fact, and self-defense. Appellant properly objected to the court’s failure to include a charge on criminally negligent homicide, and submitted a requested jury instruction on the issue.

Appellant shot and killed the deceased after coming into possession of his gun. There was conflicting testimony as to whether the deceased handed .her his gun or whether she “snatched” it from him. The deceased had quarreled with appellant earlier in the day and he had fired a shot at her with the same pistol. Appellant testified:

“Q. All right. Now, when he handed you the pistol, was it in the holster or out of the holster?
“A. No, it was out of the holster.
“Q. All right. How did he hand it to you?
“A. He just pulled it out and handed it to me and I took it by the handle.
“Q. Okay. Did you think the gun was loaded?
“A. No, I didn’t.
“Q. Why?
“A. Because after what he had just did to me, I didn’t think that he would give me a loaded gun.
“Q. Now, when you say ‘what he just did to you,’ what do you mean?
“A. By poking it all in my face, you know, and shooting at me and everything, I didn’t think he would give me a gun that was loaded after that.”

Appellant testified that she had never previously held a gun. Appellant further testified:

“A. After he handed me the gun, he started toward me as I was backing up, and I had pulled this thing right here down and I was backing up and somebody — it was down, and somebody from behind grabbed me, and by that time, you know, I had the gun up like this and it just went off and—
“Q. Do you know whether or not you had your finger on the trigger?
“A. I don’t think I did.
“Q. Why were you holding the gun up?
“A. Mainly to keep him back.
“Q. At that time were you or were you not afraid of. Muff?
“A. Yes, I was at that time.
“Q. What were you afraid he might do?
“A. Take the gun, if he got close enough, and shoot me with it.
“Q. All right. Did you mean to shoot Muff Garrett?
“A. No, I didn’t.
“Q. Did you know you were shooting the gun when you shot it?
“A. No. When I shot the gun it scared me by the way it went off, kinda — I couldn’t hear for a minute or two, you know, real hard ringing in my ears — just scared me, I was looking at him laying there and blood on the front of his shirt.”

The State impeached the testimony of appellant by having her read portions of her written statement given to the police. The statement indicated that appellant had intentionally shot the deceased.

A person commits the offense of criminally negligent homicide if he causes the death of an individual by criminal negligence. Y.T.C.A. Penal Code, Sec. 19.07(a). “Criminal negligence” is defined in Sec. 6.03(d) of the Penal Code:

“A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

In Moore v. State, Tex.Cr.App., 574 S.W.2d 122, the defendant testified that she could not remember aiming the gun or pulling the trigger of the gun that shot the victim. She was unfamiliar with guns and thought that the gun was unloaded. This Court held that the trial court should have charged the jury on criminally negligent homicide in that the defendant’s testimony raised an issue as to whether she was negligent in not perceiving the risk which her conduct created. Likewise, in London v. State, Tex.Cr.App., 547 S.W.2d 27, we held that the trial court erred in failing to charge the jury on criminally negligent homicide after the defendant testified that the gun he was holding on the victim accidentally discharged after he was hit in the back by a third party. In Dockery v. State, Tex.Cr.App., 542 S.W.2d 644, it was found that the defendant had properly been charged with criminally negligent homicide under our new Penal Code. The defendant’s weapon had accidentally discharged while the defendant was attempting to un-cock it. Lastly, in Scott v. State (No. 55,695, del. May 23, 1979) we held that the defendant was not entitled to a charge on criminally negligent homicide when he testified that he intentionally shot at the deceased to scare him.

The State contends that a charge on criminally negligent homicide was not required in this case in that by convicting appellant of involuntary manslaughter, the jury by implication found that appellant was aware of the risk in pointing the gun at the deceased. We have recently held that criminally negligent homicide is a lesser included offense of involuntary manslaughter and that when evidence raises both issues, upon proper request, the issues are to be submitted to the jury. Ormsby v. State (No. 57,537, del. May 9, 1979).

This Court has held on many occasions that when evidence from any source raises a defensive issue or raises an issue that a lesser included offense may have been committed and a jury charge on the issue is properly requested, the issue must be submitted to the jury. Moore v. State, supra; Thompson v. State, Tex.Cr.App., 521 S.W.2d 621; Esparza v. State, Tex.Cr.App., 520 S.W.2d 891; and Gavia v. State, Tex.Cr.App., 488 S.W.2d 420.

Appellant’s testimony at trial indicates that while she intended to point the gun at the deceased, she was not aware of the risk which her conduct created. On the other hand, her written statement to the authorities indicates that she perceived the risk of her conduct. The credibility of evidence and whether it is controverted or conflicts with other evidence in the case may not be considered in determining whether a defensive charge or instruction on a lesser included offense should be given. Moore v. State, supra. The only issue before this Court is whether there was evidence at appellant’s trial which raised the issue of criminally negligent homicide.

We conclude that based on appellant’s testimony that she thought the gun was unloaded, that she did not intend to fire the gun, that her finger was not on the trigger, and that the gun accidentally discharged when she was grabbed by a third party, the issue of criminally negligent homicide was raised. Therefore, the trial court erred in failing to charge the jury on this issue.

The judgment is reversed and the cause remanded.


author: ODOM, Judge.

text:
    Odis Thomas HAMMOND, Appellant, v. The STATE of Texas, Appellee.
    No. 59753.
    Court of Criminal Appeals of Texas, En Banc.
    July 18, 1979.
    Frank W. Sullivan, III, Fort Worth, for appellant.
    Tim Curry, Dist. Atty., Marvin Collins, David B. Lobingier and William D. Kane, Jr., Asst. Dist. Attys., Fort Worth, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery. Punishment was assessed by the jury at 60 years.

At the outset, we are confronted by appellant’s contention that the jury charge was fundamentally defective. The indictment alleges that appellant committed robbery under V.T.C.A., Penal Code Sec. 29.-02(a)(2), by intentionally and knowingly threatening and placing another in fear of imminent bodily injury or death. The charge to the jury authorized a conviction if appellant either committed robbery as alleged in the indictment or committed robbery as defined by V.T.C.A., Penal Code Sec. 29.02(a)(1), by causing bodily injury. Also, the indictment alleges that the robbery was aggravated pursuant to V.T.C.A., Penal Code Sec. 29.03(a)(2), in that appellant used and exhibited a deadly weapon. The charge authorized conviction either on this theory or because appellant caused serious bodily injury pursuant to V.T.C.A., Penal Code Sec. 29.03(a)(1).

A jury charge is fundamentally defective if it authorizes the jury to convict a defendant on a theory not alleged in the indictment. Robinson v. State, Tex.Cr.App., 553 S.W.2d 371. The instant case presents us with a jury charge which authorized conviction on both a robbery theory and an aggravation theory not alleged in the indictment. It is therefore fundamentally defective.

The judgment is reversed and the cause is remanded.


author: KEITH, Commissioner.

text:
    Ex parte Glenn WALTON.
    No. 61415.
    Court of Criminal Appeals of Texas, Panel No. 1.
    July 18, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., ODOM and DALLY, JJ., and KEITH, Commissioner.
   OPINION

KEITH, Commissioner.

This appeal is taken from an order entered in a habeas corpus proceeding in the 47th District Court of Potter County. At the time of the filing of the application, appellant was under indictment for murder, it being alleged that he killed Michael Armstrong by shooting him with a gun. Appellant was incarcerated under a capias with the bond having been fixed by a magistrate at $50,000.

At the conclusion of the hearing on the application to reduce the amount of bail, the trial court noted that the bail “is to some degree excessive” and reduced the bond to $25,000. Appellant immediately gave notice of appeal and we have a record but no briefs from appellant or the State.

Appellant offered the testimony of a professional bondsman to the effect that the going rate for such bail bonds was ten percent of the face or penalty of the bond; that all bondsmen in the area almost invariably required payment of the premium in advance; that he would not become surety upon appellant’s bond unless compensated at the usual rate in advance of becoming surety.

It was shown that appellant voluntarily surrendered to the police officers following the shooting and had “cooperated” with them to the extent of confessing to the shooting of deceased, the confession being found in our record.

Appellant testified that he was a life-long resident of the City of Amarillo and had attended school there; that he had never been convicted of any offense other than traffic violations and had never received a probated sentence. He was nineteen years of age at the time of the hearing. His father had been employed in the sanitation department of the City of Amarillo for twenty-five years as a truck driver; that his mother also worked but her occupation was not disclosed. He was a part-time dishwasher and hay hauler.

Appellant also testified that he had no money, credit, property, assets, or savings of his own; but, that his father had obtained $500 (the inference in our record being that he borrowed it from a credit union), but that was all the funds he had to procure a bond to secure his release.

We express no opinion as to the guilt or innocence of appellant except to note that the confession which appellant introduced in evidence made a prima facie case of guilt. Presiding Judge Onion covered the subject admirably in Ex parte Vasquez, 558 S.W.2d 477 (Tex.Cr.App.1977), wherein the appellant was charged with capital murder. Many of the leading cases on the subject are discussed in Vasquez.

While our record does not disclose clearly that appellant is an indigent, such is the inescapable conclusion from his testimony and State’s counsel made no effort to refute such an inference.

Considering the complete record, including the youth of the appellant, his lack of a prior criminal record, the fact that he surrendered voluntarily to the police, and his indigency, we conclude that bail even in the reduced sum of $25,000 is excessive. Tex. Code Crim.Proc.Ann. art. 17.15 (1977); Ex parte Lerma, 561 S.W.2d 10 (Tex.Cr.App.1978); Ex parte Vasquez, supra.

Bail is reduced and now set at the sum of $15,000.

It is so ordered.

Opinion approved by the panel.


text:
    Ex parte Joe LOCKLIN, Jr.
    No. 61454.
    Court of Criminal Appeals of Texas, En Banc.
    July 18, 1979.

      Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is a felony post-conviction habeas corpus application brought pursuant to Art. 11.07, V.A.C.C.P.

Petitioner was convicted of burglary in 1961 and his punishment, enhanced by two prior felony convictions, was fixed at life. Petitioner raises several contentions relating to his competency to stand trial when he was convicted in 1961. There was no competency hearing apart from submission of the issue to the same jury that heard the trial on the merits in petitioner’s 1961 trial, and no appeal was taken from that conviction.

Petitioner’s contentions are (1) that he was incompetent to stand trial in 1961 when he was convicted, (2) that failure to conduct a competency hearing separate from the trial on the merits denied him due process, (3) that submission of the competency issue to the same jury that decided the issue of his guilt on the criminal charges denied him due process, (4) that the wrong standard for competency to stand trial was used, and (5) that he was denied effective assistance of counsel when his attorney did not file a motion for a competency hearing or a psychiatric examination. No evidentiary hearing was held on the application.

The State in its reply to petitioner's application for relief asserts that petitioner bases his contentions on the fact that petitioner’s sister made an affidavit in December 1960 to the effect that petitioner had been adjudged insane in 1951 and was of unsound mind at that time (December 1960). The State attacks the sufficiency of this affidavit, which was filed with the trial court prior to trial, and asserts that it was because of the affidavit that “[t]he trial court in an abundance of caution did submit the competency issues to the jury” under Article 932b, V.A.C.C.P. (1925, as amended). The State also argues that no motion for a separate trial of the competency issue was filed before the trial on the merits and, citing Castello v. State, Tex.Cr.App., 373 S.W.2d 754, apparently contends this was a waiver.

The waiver argument was answered in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815:

“. . . [I]t is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’ his capacity to stand trial.” Id., at 384, 86 S.Ct. at 841.

In addition to attacking the sufficiency of the affidavit of petitioner’s sister, the State argues that many of the psychiatric and psychological reports presented as exhibits show that on dates subsequent to petitioner’s conviction, he was evaluated by examiners at the Department of Corrections and found to be sane. The issues in this case, however, concern petitioner’s mental condition at the time of his 1961 trial and the procedure used to decide that issue.

Although we do not have the trial record before us, as we did in Ex parte Hagans, Tex.Cr.App., 558 S.W.2d 457, it would appear from the trial court’s submission of the issue of petitioner’s present sanity (competency to stand trial) that the trial court had determined that such an issue had been raised. Ex parte Long, Tex.Cr.App., 564 S.W.2d 760, at 764; Ex parte Hagans, supra, at 460-461; cf. Carpenter v. State, Tex.Cr.App., 507 S.W.2d 794.

Although statutory law at the time of petitioner’s trial (Art. 932b, supra) provided for submission of the issue of competency to stand trial along with the issue of insanity as a defense as was done in petitioner’s case, such a procedure has been held to violate due process:

“We do not consider that due process requirements have been met by waiting to submit the issue of competency to stand trial to the jury along with the issue of guilt or innocence.” Morales v. State, Tex.Cr.App., 427 S.W.2d 51, 54.

Also, in submitting the issue of “present sanity” the court instructed the jury:

“. . . to establish his insanity it must be proved to the Jury by a preponderance of the evidence that the Defendant is laboring under such defect of reason from disease or impairment of the mind, as not to know the nature and quality of his acts, or as not to know the difference between right and wrong as to such acts.”

This standard, as correctly argued by petitioner, was inadequate to meet the standards of due process. Ex parte Long, supra; Ex parte Hagans, supra. The proper test is whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

From what has been seen to this point, it appears that petitioner is entitled to relief under his second, third, and fourth contentions. Under our recent holding in Brandon v. State (No. 59348, April 25, 1979) it might appear that relief would be adequate were we to remand the case to determine whether an adequate retroactive determination of competency could be made at this date. Unlike Brandon, however, in this case the competency issue was heard and decided by the same jury that decided petitioner was guilty of the offense charged against him.

Previously it has been held that the same jury should not decide both competency to stand trial and guilt-innocence, because the evidence on the latter easily could adversely affect the accuracy of the jury’s determination of the former. We today hold that the converse is also true: submission of the issue of competency to stand trial to the same jury that decides the truth of criminal charges against the accused may adversely affect the accuracy of that determination of guilt, and a conviction by a jury that has also decided the competency issue cannot stand. Several considerations lead us to this conclusion.

Prior decisions have indicated several bases for the rule against submitting competency to stand trial and the issue of guilt to the same jury. In Ex parte Hagans, supra, the Court wrote:

“The necessity of the separate hearing on the question of competency is so that the determination of an accused’s competency can be made ‘uncluttered by evidence of the offense itself.’ Townsend v. State, 427 S.W.2d 55, 63 (Tex.Cr.App.1968). Such separate uncluttered hearing before a jury makes it easier to determine fairly the issue of competency without introducing facts which might tend to cloud the issue at hand, ‘facts which alone might well so stir the minds of the'jury as to make difficult the exercise of calm judgment upon the question of present [incompetency],’ Ramirez v. State, 92 Tex.Cr.R. 38, 241 S.W. 1020, 1021 (1922).” (Emphasis added.)

In Ramirez, quoted in Hagans, the Court wrote that submission of both issues to the same jury:

“. . . would be manifestly confusing to the jury and unfair to the accused. If he be now insane, the fair decision of that issue should not be clouded and prejudiced by the introduction of the facts involving a bloodcurdling murder — facts which alone might well so stir the minds of the jury as to make difficult the exercise of calm judgment upon the question of present insanity.” (Emphasis added.)

The two considerations voiced in these excerpts from Hagans and Ramirez are that evidence of the crime might adversely affect the accuracy of determining the competency of the accused by (1) confusing the jury in its determination of that issue and (2) arousing unfair prejudice against the accused.

In Townsend v. State, Tex.Cr.App., 427 S.W.2d 55, these other concerns were expressed:

“In the absence of an unvacated adjudication of insanity the burden of proof (by a preponderance of the evidence) would be on the defendant as to both issues of insanity thus rendering it desirable for him to sustain his burden as to insanity as a defense, but not to offer proof to overcome the presumption as to his present sanity. Under a finding by the jury that he was insane at the time of the act he would be acquitted, and if the jury further found that he was presently sane he would be a free man, not to be confined in the Texas Department of Corrections or a state hospital.
“If the only procedure available to an accused is to have the issue of competency to stand trial (present sanity) submitted to the jury along with the conditional submission of guilt or innocence, might not the jury reach an unanalytical and impressionistic verdict as to competency based on all they had heard 1” (Emphasis added.)

The two considerations presented here are (1) that paradoxical stances under the burden of proof on the two issues would arise and (2) that the jury might return an una-nalytical and impressionistic verdict based on all the evidence.

The paradoxical stances on the burden of proof are a consideration that weighs equally, whether considering the adverse effect on the determination of competency (as in Townsend) or the adverse effect on the determination of guilt in the face of the insanity defense. The adverse impact attributable to the possibility of an unanalytical, impressionistic verdict based on all the evidence, without sorting out the evidence on insanity at the time of the offense from that on present competency, is also as great on the integrity of the fact finding process for one issue as the other. Furthermore, when the two issues are incorrectly submitted under the same standard (as was done in this case) the adverse impact of these two considerations (paradoxical stances under the burden of proof and the likelihood of an unanalytical, impressionistic determination of the issue) is increased. Similarly, the combined effect of these two considerations is greater than the sum of their effects separately: the likelihood of an unanalytical, impressionistic verdict is increased by the identity of the burden of proof, and the negative impact on the accused of the paradoxical stances on burdens of proof is heightened by the tendency toward an unanalytical, impressionistic verdict.

Although closely related, the considerations of confusion and prejudice on the part of the jury when both mental status issues are submitted in one trial are distinct from each other and from the tendency toward an unanalytical, impressionistic verdict. Prejudice may arise from proof of one issue and carry over to the other; confusion may result from the difficulty in sorting out one from the other; and the unanalytical, impressionistic verdict is the likely response on both issues from frustration in the face of a seemingly impossible task of dissipating the confusion and holding the issues separate and distinct. These considerations also exhibit a synergistic effect that is heightened even more when the same standard is (erroneously) given for both mental status issues (as was done in this case).

These various forces and their adverse effects that undermine reliability of the determination of competency to stand trial also adversely affect the truthfinding process as to the issue of guilt. We therefore hold that due process in the determination of the issue of guilt is violated when that issue is tried jointly with the issue of competency to stand trial. Accordingly, petitioner’s conviction for burglary in cause number 63974 in Criminal Judicial District Court No. 2 of Tarrant County, wherein sentence was pronounced on March 29, 1961, is set aside, and petitioner is remanded to custody to answer the indictment pending against him in said cause. A copy of this opinion will be sent to the Texas Department of Corrections.

It is so ordered.


author: DOUGLAS, Judge.

text:
    James Franklin HELTCEL, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 61670.
    Court of Criminal Appeals of Texas, Panel No. 2.
    July 18, 1979.
    James S. Bates, Edinburg, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, PHILLIPS and CLINTON, JJ.
   OPINION

DOUGLAS, Judge.

Appellant was convicted for the offense of possession of more than four ounces of marihuana. The court assessed punishment at seven years and a $1500 fine, probated.

Heltcel’s sole contention is that the evidence is insufficient to support the verdict.

At approximately 2:00 a. m. on the morning of April 14, 1978, L. R. Park, Jr., Refugio Chief of Police, stopped a car driven by appellant for speeding. Park also observed a woman passenger in the front seat and a male passenger in the back feigning sleep. Officer Park saw that appellant’s driver’s license was expired and received permission from him to search the car for weapons. A pistol was discovered under the front seat. Park noticed that both passengers appeared nervous and he asked the back seat passenger, later identified as Thomas McCain, to-sit up. When he did, two brown paper bags containing bricks of marihuana were found where McCain had been lying. Officer Park stated that a search of the rest of the car and its occupants produced no other evidence of marihuana. There was no testimony relating to the smell of marihuana in the car. There was evidence that the car belonged to McCain. Park testified that although appellant appeared “too friendly,” he did not make “furtive” gestures or appear to be nervous.

An accused may jointly possess narcotics or dangerous drugs with another and exclusive possession need not be shown. Reyes v. State, 575 S.W.2d 38 (Tex.Cr.App.1979); Martinez v. State, 539 S.W.2d 885 (Tex.Cr.App.1976); Curtis v. State, 519 S.W.2d 883 (Tex.Cr.App.1975). Mere presence alone at a place where the contraband is being used or possessed by others, however, does not justify a finding of joint possession. Underwood v. State, 571 S.W.2d 7 (Tex.Cr.App.1978); Ayers v. State, 570 S.W.2d 926 (Tex.Cr.App.1978). Two elements must be proven: (1) that the accused exercised care, control, and management over the contraband, and (2) that the accused knew the matter possessed was contraband. Reyes v. State, supra; Wilkes v. State, 572 S.W.2d 538 (Tex.Cr.App.1978). In other words, the State must show “additional independent facts and circumstances which affirmatively link the accused to the contraband in such a manner that it can be concluded he had knowledge of the contraband as well as control over it.” Wilkes v. State, supra; Ayers v. State, supra.

There was no proof that appellant had knowledge of the presence of contraband. The marihuana found was in the back seat inside a paper bag which had been secreted under McCain. There was no evidence of a noticeable odor within the car and no other contraband was found either in the car or on appellant’s person.

Viewing the evidence in a light most favorable to the verdict, we are constrained to conclude that, under the cases cited above, it is insufficient to affirmatively link appellant to the contraband seized in the vehicle. According to the decisions of the Supreme Court of the United States in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15, this opinion is tantamount to an acquittal.

The judgment is reversed and the prosecution is ordered dismissed.


text:
    Ex parte Narcisso RODRIQUEZ.
    No. 61785.
    Court of Criminal Appeals of Texas, Panel No. 2.
    July 18, 1979.

      Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, PHILLIPS and CLINTON, JJ.
   OPINION

DOUGLAS, Judge.

This is an appeal from an order refusing to reduce bond. Appellant was charged with the offense of attempted murder.

The complaining witness had been appellant’s girl friend. She testified that she was in a bar when appellant stabbed her with a knife on the left side of the head and that he cut her twice on the right arm and twice on the left arm. He then started walking away. When she asked why he did it, he returned and cut her under the heart. He told everyone in the bar that he was ready to fight them. It took around eighty stitches to sew up the wounds. She testified that he was intoxicated.

Bond had been set at $25,000 cash. Appellant testified that he could not post a $25,000 cash bond, that it was possible that he might make a $10,000 surety bond.

Article 17.02, V.A.C.C.P., defining a bail bond, provides as follows:

“A ‘bail bond’ is a written undertaking entered into by the defendant and his sureties for the appearance of the principal therein before some court or magistrate to answer a criminal accusation; provided, however, that the defendant upon execution of such bail bond may deposit with the custodian of funds of the court in which the prosecution is pending current money of the United States in the amount of the bond in lieu of having sureties signing the same. Any cash funds deposited under this Article shall be receipted for by the officer receiving the same and shall be refunded to the defendant if and when the defendant complies with the conditions of his bond, and upon order of the court.”

It can be seen that cash bail was provided at the option of the accused.

Without deciding if the $25,000 cash bond is excessive, we hold that the provision of the order that such bond shall be posted in cash is not authorized under Article 17.02, supra. See Ex parte Deaton, Tex.Cr.App., 582 S.W.2d 151 (1979). A reasonable surety bond should be assessed by the hearing judge.

Accordingly, the judgment is reversed and the cause is remanded.


text:
    Ex parte Weldon C. DIXON.
    No. 62089.
    Court of Criminal Appeals of Texas, En Banc.
    July 18, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

Dixon was convicted for the offense of aggravated robbery. His punishment was assessed at 16 years. He contends that he is entitled to relief because the first trial of his case resulted in a reversal because the evidence was held to be insufficient to support the conviction and he was convicted in the present case for the same offense. We agree.

In Dixon v. State, 541 S.W.2d 437 (Tex.Cr.App.1976), the conviction was reversed because of insufficient evidence. He now attacks the second conviction because of the recent rulings of the Supreme Court of the United States in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), which held that a second trial is prohibited once a reviewing court determines that there was insufficient evidence to support the verdict.

Since those decisions were handed down, this Court has held the Burks and Greene cases to be retroactive. See Ex parte Mixon, 583 S.W.2d 378 (1979), and Ex parte Reynolds (No. 60647, June 20, 1979).

In view of these holdings, the relief sought should be granted and this is tantamount to an acquittal.

The relief sought is granted and Dixon is ordered released from custody from his conviction in cause no. 2270 in the District Court of Hunt County.


author: CLINTON, Judge.

text:
    Ex parte Willie DAVIS.
    No. 62090.
    Court of Criminal Appeals of Texas, En Banc.
    July 18, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

CLINTON, Judge.

This is a post-conviction habeas corpus proceeding pursuant to Article 11.07, V.A.C. C.P. Petitioner was convicted of forgery by passing as proscribed by V.T.C.A. Penal Code, § 32.21(a)(1)(B) and (b). He now contends that the indictment charging the offense was fundamentally defective in that it did not allege that the writing purported to be the act of another “who did not authorize that act.” We have examined the indictment. While it sets out the writing in its entirety and otherwise states every other element of the offense, the indictment does, indeed, fail to include the statutory phrase “who did not authorize that act” or to use other words conveying the same meaning or the sense of the statutory words. He relies in part on the original panel opinion in Minix v. State, 579 S.W.2d 466 (Tex.Cr.App.1979).

Today, in Landry v. State, 583 S.W.2d 620 (Tex.Cr.App., opinion on appellant’s motion for rehearing), the Court reaffirms the holding in Minix, just as it did on State’s motion for rehearing in Minix, itself, April 25, 1979; it also overrules a second motion for rehearing in Minix. That an indictment for forgery which fails to allege that the writing purporting to be the act of another “who did not authorize that act” is fundamentally defective is thus settled. Petitioner is entitled to relief.

Accordingly, the writ is granted, the conviction in Cause No. 258,506 is vacated and set aside and the indictment in that cause is dismissed. Therefore, petitioner is released from custody and every manner of restraint in his personal liberty as a consequence of the conviction. The Clerk of this Court is directed to forward a copy of this opinion to the Texas Department of Corrections.

It is so ordered.

DOUGLAS, J., dissents.

      . See Article 21.17, V.A.C.C.P.

      . That the writer no longer agrees with the original Minix opinion, as explicated in my dissenting opinions in Minix on State’s motion for rehearing and today in Landry on appellant’s motion for rehearing, is of no moment. The Court en banc has clearly declared the law and I must and do defer to its judgment.

      .Articles 11.07 and 11.64, V.A.C.C.P.; Ex parte Guzman, 551 S.W.2d 387 (Tex.Cr.App.1977).


author: CADENA, Chief Justice.

text:
    Burnis K. LAWRENCE, Appellant, v. W. T. HARDY, Appellee.
    No. 15984.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 22, 1978.
    Rehearing Denied June 27, 1979.

      James N. Higdon, Wiley, Plunkett, Gibson & Allen, San Antonio, for appellant.
   OPINION

CADENA, Chief Justice.

This is a suit for damages resulting from a collision involving an automobile which was being operated by Patricia Lawrence, wife of plaintiff, Burnis K. Lawrence, and an automobile which was being driven by defendant, W. T. Hardy. Plaintiff appeals from a judgment denying him recovery against defendant and awarding damages to defendant on his counterclaim.

The accident occurred when the vehicle being operated by defendant crossed the center stripe of the highway and entered the left lane going into the path of the oncoming car which Mrs. Lawrence was driving. At the time of the accident, plaintiff was not a passenger in the car which his wife was operating, and there is no evidence to support the conclusion that, at such time, Mrs. Lawrence was acting as her husband’s agent. Plaintiff filed this suit without joining his wife as a party plaintiff, and defendant did not make plaintiff’s wife a party to his counterclaim.

In answer to special issues the jury found that plaintiff’s wife was guilty of negligence which proximately caused the accident. Issues inquiring whether defendant had kept a proper lookout, improperly applied his brakes, and drove at excessive speed were answered favorably to defendant. However, in answer to Special Issue 4 the jury found that at the time of the collision defendant’s automobile, which was proceeding in an easterly direction, was in the westbound traffic lane. The jury further found that this was a proximate cause of the accident. The trial court granted defendant’s motion to disregard the answer to Issue 4 and entered judgment in favor of defendant on his counterclaim.

Plaintiff first complains that the trial court erred in denying his motion for an instructed verdict on defendant’s counterclaim because (1) defendant did not make plaintiff’s wife a party to the counterclaim against plaintiff; (2) defendant neither alleged nor proved the existence of any relationship between plaintiff and plaintiff’s wife, other than the marital relationship, which would support a judgment in favor of defendant for damages caused by the negligence of plaintiff’s wife; and (3) no issues were submitted or requested which would support a judgment allowing defendant to recover from plaintiff.

At least as early as 1864 our Supreme Court held that a husband was liable for the torts of his wife. McQueen v. Fulgham, 27 Tex. 463 (1864). In answer to the contention that the common law rule imposing liability on the husband had been abrogated by statutes of this state which secured to the wife her separate property and protected her, with reference to such property, against the recognized and controlling influence of her husband over her conduct, the Court said:

[The rule imposing liability on the husband for the torts of his wife] rests perhaps mainly upon the supposition that her acts are the result of the superior will and influence of the husband. Owing to the intimate relation between husband and wife, and to the nature of the control given him by law and social usage, over her conduct and actions, it would be difficult, if not impossible, for the courts to determine when she had acted at her own instance, and when she was guided by his dictation.[I]t would be a stretch of judicial authority to hold that the common law responsibility attaching to him for the acts of the wife is by mere implication abolished [by the statutes concerning the wife’s property rights.]

Id. at 467. There is language in McQueen which clearly indicates that the separate property of the husband could be taken to satisfy a judgment based upon a tort of the wife. See Id. at 468. The same result was reached in Zeliff v. Jennings, 61 Tex. 458 (1884) where the Court rested the rule imposing liability on the husband not only on the control rationale advanced in McQueen, but also on the common law doctrine which regarded husband and wife as one person. Id. at 470. In 1921, the Legislature amended Article 4621 of the Revised Civil Statutes of 1911 to exempt the husband’s separate property from liability for the torts of the wife. 1921 Tex.Gen.Laws, Ch. 130, § 1, at 251. Prior to this amendment the Supreme Court had again stated that statutes dealing with the rights of married women “have been uniformly construed as leaving the wife, as well as the husband, liable for the torts of the wife.” Whitney Hardware Co. v. McMahan, 111 Tex. 242, 244, 231 S.W. 694, 695 (1921).

Apparently the first case to consider the question of whether the husband could be sued for the tort of his wife without joinder of the wife was Campbell v. Johnson, 284 S.W. 261 (Tex.Civ.App.—Dallas 1926), aff’d, 290 S.W. 526 (Tex.Com.App.1927, judgmt adopted). Johnson sued Campbell for damages to Johnson’s automobile caused by the negligence of Campbell’s wife. Campbell contended that the pleadings did not support a judgment against him because the cause of action was based on the negligence of his wife and it did not appear that he was present or coerced her or that he was in any way a joint tortfeasor. Campbell argued that under such circumstances he was not liable for his wife’s negligence and that since she was solely responsible, she was therefore a necessary party to the suit. In rejecting this contention the Court said:

Under the provisions of article 4613 Rev.St.1925, the separate property of the husband cannot be subjected to the payment of damages occasioned by the torts of the wife. Notwithstanding the provision, his common-law liability for her torts remains undisturbed by any statute. It follows therefore that this liability may be enforced by a suit against him without the necessity of joining the wife, and their common estate may be subjected to the payment of any judgment obtained against him.

284 S.W. at 263.

The rule imposing liability on the husband for the torts of the wife was followed in Scott v. Brazile, 292 S.W. 185 (Tex.Com. App.1927, judgmt adopted), and, again, in First National Bank in Houston v. Finn, 132 S.W.2d 151, 154 (Tex.Civ.App.—Galveston 1939, writ dism’d), where the Court, relying on Campbell, held that a judgment could be rendered against a husband, based on the tort of his wife, without joinder of the wife. We have found no case repudiating the holdings in McQueen, Zeliff, Scott, and Finn.

In Burnett v. Cobb, 262 S.W. 826, 828-829 (Tex.Civ.App.—Amarillo 1924, no writ), there is language which can be construed as expressing the opinion that the enactment of the statute exempting the separate property of the husband from liability for the torts of the wife abrogated the old rule that a husband was liable for the torts of his wife.

In Graham v. McCord, 384 S.W.2d 897, 899 (Tex.Civ.App.—San Antonio 1964, no writ), it was said that a plaintiff, suing a husband alone for damages for injuries sustained by plaintiff as the result of the negligence of defendant’s wife, “had the burden to prove that the husband had the right to control the physical conduct of his wife at the time and in respect to the very thing which caused the injury.” However, the question before the Court was one of venue. The defendant was a resident of Randall County and was being sued in Bexar County for damages caused by his wife’s negligence in Bexar County. The Court pointed out that plaintiff, in order to maintain venue against the husband in Bexar County under Subdivision 9a of Article 1995, had to prove that the act or omission on which the cause of action was based “was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment.” Tex.Rev.Civ. Stat.Ann. art. 1995, Subd. 9a (Vernon 1964). Since, as the opinion points out, the term “scope of his employment” carries with it the requirement of control “inherent in the master-servant relationship which will invoke the respondeat superior doctrine”, (384 S.W.2d at 899), the Court correctly concluded that to maintain venue under Subdivision 9a plaintiff had to prove that, at the time of the accident, the relationship between the husband and his wife was that of master and servant. The language requiring proof of the husband’s right to control the conduct of the wife is unquestionably correct when the issue concerns venue under Subdivision 9a. See also Taylor v. Martin, 386 S.W.2d 211 (Tex.Civ.App.—Waco 1964, writ dism’d).

In Turner v. Turner, the Supreme Court stated: “[A husband] is not individually liable for the torts of his wife not aided and abetted by him. The community estate [of the wife and the husband] would be liable. Art. 4613, Vernon’s Ann.Civ.Stat.” 385 S.W.2d 230, 232 (Tex.1964). At the time that Turner was decided, the provision declaring that the husband’s separate property shall not be subject to liability for the wife’s torts was found in Texas Revised Civil Statutes Article 4613 (1960). Turner mentioned none of the prior decisions which declared that a husband is liable for the torts of his wife. The citation to what was then Article 4613 supports no more than the last sentence of the portion of the opinion quoted in the preceding paragraph to the effect that the community property of the parties is liable for the torts of either spouse. 385 S.W.2d at 232. The statement concerning the “individual liability” of the husband for the torts of his wife may, with reason, be classified as dictum. The case involved a suit against the husband and his former wife for damages resulting from the alienation of the affections of plaintiff’s husband by defendant’s wife. The only question which the Supreme Court decided concerned the husband’s claim that he recover from his former wife the attorney’s fees paid by him in defending the suit against him based on his wife’s tort.

After Turner, a Court of Civil Appeals held that what was then Article 4613 “does not affect the common law rule that a husband is liable for the torts of his wife but that its only effect, in this respect, is to exempt or relieve the separate property of the husband from liability for the torts of his wife.” Firemen’s Insurance Co. v. Burch, 426 S.W.2d 306, 309 (Tex.Civ.App.—Austin) rev’d on other grounds, 442 S.W.2d 331 (Tex.1968). It must be noted that the Supreme Court, in reversing the judgment of the Court of Civil Appeals in Burch, held that the portion of the opinion of the intermediate appellate court quoted above constituted an “advisory opinion” and, as a consequence of such characterization, that portion of the decision was vacated. 442 S.W.2d at 334.

Turner was cited in the dissenting opinion in Maness v. Reese, 489 S.W.2d 660, 668 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.) in support of the statement that the community estate would be liable for the torts of either spouse, but that neither spouse is “individually liable” for the torts of the other.

Use of such terms as “personally liable” and “individually liable” can create confusion, particularly when, in the next breath, there is a reference to “liability” of property. Property is “liable” for torts, for example, only in the sense that it is subject to being seized and sold to satisfy an obligation of its owner. It makes no sense to say that while H is not “personally” or “individually” liable for the torts of W, his property may nevertheless be seized and sold in order to satisfy the “personal” or “individual” liability of W. The present rules concerning “liability” of marital property are found in Section 5.61 of the Family Code, which provides: “(a) A spouse’s separate property is not subject to liabilities of the other spouse unless both spouses are liable by other rules of law. . (d) All the community property is subject to tortious liability of either spouse incurred during marriage.” Tex.Fam.Code Ann. § 5.61 (Vernon 1975).

It would be extremely difficult to justify a rule of law which permits the property of a person to be seized and sold to satisfy an obligation which is not the obligation of such person. If my property is subject to seizure and sale for the purpose of satisfying an obligation, then, to the extent that my property is subject to such seizure and sale the obligation is my “liability.” Statutory limitations upon the nature of my property which can be so seized and sold must be classified as exemption statutes in the sense that they exempt portions of my property from seizure and sale. As long as some of my property is subject to such seizure and sale, I am, to that extent, “liable” for the satisfaction of the obligation.

In view of the statutory exemption of the husband’s separate property from seizure and sale for the purpose of satisfying a judgment based on the tort of his wife, the rule can be stated as follows: Neither spouse is “individually” or “personally” liable for the torts of the other spouse except to the extent of his or her interest in the community property, unless there is a greater liability imposed under such doctrines as agency, respondeat superior or joint enterprise. The deletion of the words “personally” and “individually" from such statement of the rule would neither add to nor detract from its meaning and the deletion of such words would eliminate possible confusion.

Family Code Section 4.04(a) permits suits against one spouse without joinder of the other. Construing this with the language of Section 5.61(d) of the Family Code, all of the community property is “subject to [the] tortious liability of either spouse incurred during marriage,” the interest of one spouse which is “subject” to such “tortious liability” can be reached without the joinder of the other spouse. As applied to this case then, resort to traditional terminology results in a holding to the effect that the “liability” of the husband’s interest in the community for the torts of the wife can be enforced by a suit against the husband without joinder of the wife.

The trial court correctly overruled the husband’s motion for an instructed verdict in his favor insofar as defendant’s counterclaim is concerned.

Plaintiff also contends that he cannot be held liable for the injuries caused by his wife’s negligence because at the time of the accident Mrs. Lawrence was the bailee of the vehicle which she was driving. It is true that a bailor ordinarily is not liable for injuries resulting from the negligence of his bailee. Nor is a bailor barred from recovery for damages to the bailed property because the bailee’s negligence contributed to the injury. Rollins Leasing Corp. v. Barkley, 531 S.W.2d 603, 605 (Tex.1975). These rules, however, are not applicable in this case. Plaintiff’s attorney admitted in open court that the vehicle being operated by Mrs. Lawrence was the community property of plaintiff and his wife. She was, therefore, operating the vehicle as a co-owner, not as bailee.

Nor did the trial court err in disregarding the answers to Issues 4 and 4A, which embody findings to the effect that defendant failed to keep his vehicle “completely within the right half of the roadway” and that such failure was a proximate cause of the accident.

In Impson v. Structural Metals, Inc., 487 S.W.2d 694 (Tex.1972), the Texas Supreme Court adopted the treatment of excused violations of statutory regulations which is found in Restatement (Second) of Torts § 288A (1965). Under this view, an excused violation of a statutory regulation is not negligence. A violation is excused when the actor is unable after reasonable care or diligence to comply with the regulation or when he is confronted by an emergency not due to his own misconduct. Id.

The jury verdict establishes that plaintiff failed to prove that defendant was guilty of negligence with respect to proper lookout, proper application of brakes or excessive speed. The evidence is undisputed that driving conditions at the time of the accident were hazardous due to weather conditions; that as defendant came to the crest of a hill, just prior to the accident, he encountered, for the first time, ice or sleet on the road; that defendant’s vehicle failed to respond to his efforts to keep it under control; and that the car was completely out of control at the time it skidded across the center stripe and into the path of the oncoming vehicle operated by plaintiff’s wife. This undisputed testimony establishes excuse as a matter of law. Consequently, the jury’s answer to Issue 4 cannot be treated as a finding of negligence.

In any event, since the damaged vehicle was community property, plaintiff was precluded from recovery for damages to it under the doctrine, sometimes referred to as “the community property defense,” under which the negligence of one spouse prevents recovery of damages by the other when such recovery would constitute community property. Graham v. Franco, 488 S.W.2d 390 (Tex.1972); 3 L. Simpkins, Texas Family Law § 20.26 at 357 (5th ed. Speer 1976).

The judgment of the trial court is affirmed.