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

text:
    George Washington HICKS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 49508.
    Court of Criminal Appeals of Texas.
    July 16, 1975.
    Charles L. Cantrell, Waco, for appellant.
    Martin D. Eichelberger, Dist. Atty., Felipe Reyna and Ward Casey, Asst. Dist. At-tys., Waco, Jim D. Vollers,. State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for statutory rape, where the punishment was assessed at life imprisonment by the court following a jury’s verdict of guilty.

At the outset we are confronted with the complaint that the assistant district attorney improperly alluded to the failure of the appellant to testify. See Article 38.08, Vernon’s Ann.C.C.P.

During the argument of the prosecutor at the guilt stage of the trial, he stated, “I’ll tell you what. You know that defendant sits over there, and he’s had the benefit of this court appointed lawyer, and he has had the psychiatrist and he has had a couple of bites at the apple — you know that — .”

Then shortly thereafter he argued:

“But, anyway, he looks — you know — he is sitting over there — you know — we had Dr. Anderson — Dr. Anderson had that thing there, and he had his lawyer arguing to you and everything. But there is somebody that we haven’t heard from in this case. And I think you all know who it is.
“MR. CANTRELL: Your Honor, we’re going to object to that comment. He is obviously commenting — inferring by the place he stood — let the record reflect that he stood right behind the defendant, raised his voice, at that time, and objected — excuse me — not objected — said, ‘We haven’t heard from somebody in this court.’ At that time, Mr. Casey looked down at the defendant in such that by his actions and inferences and comments made, was a comment on not testifying by the defendant.
“MR. CASEY: I was referring to Dr. Stockton, Your Honor.
“MR. CANTRELL: You were not.
“MR. CASEY: Let the record clearly reflect that I was talking about the medical testimony, and Dr. Stockton, the man that took the EEG wasn’t up here testifying in Court.
“THE COURT: I’ll overrule your objection.
“MR. CANTRELL: Note our exception.”

For there' to be reversible error because of an allusion to or comment on the failure of an accused to testify in his own behalf, the language used must be looked to from the standpoint of the jury, and the implication that language used had reference to such failure to testify must be a necessary one. Winkle v. State, 506 S.W.2d 891 (Tex.Cr.App.1974); Turner v. State, 504 S.W.2d 843 (Tex.Cr.App.1974); Yates v. State, 488 S.W.2d 463 (Tex.Cr.App.1972); Ramos v. State, 419 S.W.2d 359 (Tex.Cr.App.1967). Further, “[i]t is not sufficient that the language might be construed as an implied or indirect allusion thereto.” Yates v. State, supra, at p. 466; Winkle v. State, supra; Turner v. State, supra.

In Garcia v. State, 513 S.W.2d 559, 561-562 (Tex.Cr.App.1974), a McLennan County ease involving the same prosecutor as in the instant case, this court wrote, “It is asserted in appellant’s brief that when the prosecutor said, ‘there is one person we didn’t hear from in this trial,’ he stood behind appellant, then when the objection was made, he said, ‘from defendant’s mother.’ If this occurred as appellant recited in his brief, it would doubtless be a direct reference to the failure of appellant to testify, but the record does not support the claim that the assistant district attorney stood behind appellant and thus directed his remarks to his failure to take the stand.”

In the instant case the alert defense counsel stated for the purpose of the record that the prosecutor was standing behind the appellant when he raised his voice, looked down at the appellant and stated, “But there is somebody that we haven’t heard from in this case. And I think you all know who it is.”

This statement, made for the purpose of the record and recorded by the court reporter as to the prosecutor’s physical actions, was undisputed by the prosecutor and unquestioned and unqualified by the court in whose presence the statement was made.

Article 40.09, subd. 4, Vernon’s Ann.C. C.P., 1965, reads in part as follows:

“. . . A transcription of the reporter’s notes when certified to by him and included in the record shall establish the occurrence and existence of all testimony, argument, motions, pleas, objections, exceptions, court actions, refusals of the court to act and other events thereby shown and no further proof' of the occurrence or existence of same shall be necessary on appeal; provided, however, that the court shall have power, after hearing, to enter and make part of the record any finding or adjudication which the court may deem essential to make any such transcription speak the truth in any particular in which the court finds it does not speak the truth and any such finding or adjudication having support in the evidence shall be final.”

The record was so certified by the court reporter.

There were no objections to the record and the court caused no hearing to be held in order that the record speak the truth. The record was approved by the trial court. Article 40.09, subd. 7, Vernon’s Ann.C.C.P. And we note the State’s brief does not contend that the event referred to did not occur.

The State points out, however, that Dr. Jack Anderson, a psychiatrist who testified for the defense on the issue of insanity, related on cross-examination that the tracing of an electroencephalogram “run” on the appellant, to which he had referred on direct examination, had been read by Dr. Robert Stockton, a neurosurgeon. Dr. James Grigson, a State’s rebuttal witness, testified that an electroencephalogram was useful but not essential to a proper diagnosis, that if he thought it was important he would talk to the doctor who interpreted it, that if Dr. Anderson had told him he (Anderson) didn’t know how to interpret the tracing he would “want to hear from Dr. Stockton.” Then the record on re-direct examination reflects:

“Q And if you were sitting on a jury, you would want to hear the same thing too, wouldn’t you?
“A I don’t think it would make a bit of difference in this case.”

While the State clearly has the right to comment upon the accused’s failure to call a certain witness to support his defensive theory, Miller v. State, 458 S.W.2d 680 (Tex.Cr.App.1970); Joines v. State, 482 S.W.2d 205 (Tex.Cr.App.1972), this right may not be utilized in such a way that the prosecutor can improperly comment on the defendant’s failure to testify and then excuse the same, upon objection, by stating he was referring to someone else. In the instant ease the prosecutor stated, upon objection, he was referring to Dr. Stockton, while in Garcia the same prosecutor, upon objection, stated he was referring to the defendant’s mother. Unlike Garcia, however, this record shows without dispute that when the complained of remark was made in the jury’s presence the assistant district attorney was standing behind the appellant, raised his voice and looked down at the appellant.

The argument in conjunction with the prosecutor’s physical actions was manifestly intended to be, and was, of such a character that the jury would naturally or necessarily take it as a comment on the failure of the appellant to testify. Chapman v. State, 504 S.W.2d 912 (Tex.Cr.App.1974); Lipscomb v. State, 467 S.W.2d 417 (Tex.Cr.App.1971); Ramos v. State, supra. This was a clear violation of Article 38.08, Vernon’s Ann.C.C.P.

It is regrettable that a prosecutor would continue to engage in improper conduct depriving a defendant of a fair and impartial trial when such conduct is totally unnecessary to secure a conviction. See and compare Roller v. State, 518 S.W.2d 373 (Tex.Cr.App.1975) (reversed because of this same prosecutor’s comments on the defendant’s failure to testify), as well as Anderson v. State, 525 S.W.2d 20 (Tex.Cr.App.1975) (also reversed because of improper jury argument by this same prosecutor).

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

ROBERTS, Judge

(concurring).

I agree that this conviction must be reversed, but I would hold that Article 40.-09(4), Vernon’s Ann.C.C.P., does not alone control our determination of the issue presented.

Appellant’s counsel urged that the record should reflect the occurrence of certain observable events, which counsel described with specificity. On the basis of these events, which were part of the prosecutor’s argument, counsel objected that the prosecutor was commenting on the appellant’s failure to testify.

The prosecutor then urged that the record should reflect that he was talking about Dr. Stockton in his previous comments. This statément by the prosecutor was merely a self-serving statement of alleged intent; in no way did it dispute the statement of appellant’s counsel that the observable events had in fact occurred.

The same is true of the trial court’s comment, “I’ll overrule your objection.’’ This statement failed to dispute or deny the truth of the facts stated by defense counsel. Instead, it merely served to express the trial court’s disagreement with counsel’s assertion that the stated events were in fact objectionable.

The recitation of counsel thus stood unre-butted and unqualified by court or prosecutor, and hence in the same posture as it would have if neither had spoken.

I concur.

ODOM, Judge

(concurring).

I concur in the reversal of this conviction, but take exception to the majority’s reliance upon Article 40.09(4), V.A.C.C.P. That provision is authority for finding that counsel made the statement appearing in the record before us. It is not authority for finding that counsel’s statement is an accurate statement of what occurred.

Although Article 40.09(4) is not authority for holding that counsel’s statement for the record is accurate, I believe the statement itself must be taken as accurate because it was not qualified or disputed by the court or prosecutor, both of whom were in a position to view the occurrence and make a statement for the record of what did occur. If the proposition asserted by the dissent, that a statement “let the record reflect” not specially certified by the trial court shows nothing, is correct, then many cases would require reversal for insufficient evidence because of the widespread prosecutorial practice of having State’s witnesses point at someone in the courtroom and the prosecutor then stating, “Let the record reflect the witness has identified the defendant.”

The statement of the prosecutor in the instant case is not a qualification of the statement made by appellant’s counsel. The prosecutor stated, “Let the record reflect that I was talking about the medical testimony, and Dr. Stockton, the man who took the EEG wasn’t up here testifying in Court.” If the prosecutor was attempting to show his intent or negate bad faith, his statement was not sufficient to do so. It did not contradict or conflict with appellant’s statement of what acts occurred in open court. It was itself a statement of mental processes, and therefore could not constitute a recitation to preserve in the record acts occurring in open court and visible to all. The subjective intent is irrelevant; the test is whether the argument, by words and acts, is of such a character that the jury would naturally or necessarily perceive it as a comment on the failure of the accused to testify. Because the record in this case reflects that such an argument was made, I concur in the reversal of appellant’s conviction.

MORRISON, Judge

(dissenting).

I agree that the assertion that the prosecutor was standing behind the appellant and looking down at him is not supported by the record before us.

I would further point out that in our opinion in Salazar v. State, supra, on rehearing, we acknowledged that the exhibition of the scars had been made. This was based upon a statement in the record by the court that “the wounds had been shown to the jury.”

I cannot agree with my Brother Onion that he has sufficiently distinguished Barrientez v. State, supra. I would hold that it is authoritative in the case at bar and, for that reason, I dissent to the reversal of this conviction.

DOUGLAS, Judge

(dissenting).

The majority reverses this conviction on the ground that the prosecutor commented on the failure of the appellant to testify. To reach that conclusion, the majority has elevated an unsworn statement of counsel to the heights of evidence. Heretofore objections and allegations of counsel have not been self-proving.

The majority has in effect unseated the trial judge.

During closing argument, the assistant district attorney was discussing and summarizing the testimony of the various witnesses and other evidence introduced during the course of the trial. The appellant, as a defense to the charge, had raised the issue of insanity and a Dr. Anderson testified as an expert witness for the defense. The record reflects the following:

“MR. CASEY: (Assistant District Attorney) He has had his lay witnesses to come up here as layman. Of course, we had a couple of laymen testify to you too. He said — that somehow or another he didn’t like the way I cross examined his lay witnesses. But, you know, Mr. and Mrs. Poe, he didn’t ask them one question. You all are entitled to consider that.
But, anyway, he looks — you know — he is sitting over there —you know — we had Dr. Anderson — Dr. Anderson had that thing there, and he had his lawyer arguing to you and everything. But there is somebody that we haven’t heard from in this case. And I think you all know who it is. (Emphasis Supplied)
“MR. CANTRELL: (Defense Counsel) Your Honor, we’re going to object to that comment. He is obviously commenting — inferring by the place he stood — let the record reflect that he stood right behind the defendant, raised his voice, at that time, and objected — excuse me — not objected — said, ‘We haven’t heard from somebody in this court.’ At that time, Mr. Casey looked down at the defendant in such that by his actions and inferences and comments made, was a comment on not testifying by the defendant.
“MR.- CASEY: I was referring to Dr. Stockton, Your Honor.
“MR. CANTRELL: You were not.
“MR. CASEY: Let the record clearly reflect that I was talking about the medical testimony, and Dr. Stockton, the man that took the EEG wasn’t up here testifying in Court. (Emphasis Supplied)
“THE COURT: I’ll overrule your objection.
“MR. CANTRELL: Note our exception.
“MR. CASEY: You heard Dr. Grigson say that if he was — as a physician, instead of asking a juror or anybody, he would want the man that actually ran the chart and interpreted the chart. Dr. Anderson told you that he didn’t run it. He couldn’t tell us anything about the chart. He had it there, but he said, T didn’t interpret it. I don’t even run those things.’ . . .”

The question is two-fold. First, it must be determined whether the assistant district attorney was in fact standing behind the appellant and looking at the appellant when he said “but there is somebody that we haven’t heard from in this case. And I think you all know who it is.” Second, if the record does not reflect those facts, did the comment examined from the standpoint of the jury necessarily refer to the appellant’s failure to testify?

The two statements of the prosecutor that appellant “is sitting over there” would indicate that the prosecutor was not standing behind appellant when these statements were made.

There is just as much, or more, in the record to show that appellant was “sitting over there” as there is in the record to show that the prosecutor was standing behind the appellant.

Salazar v. State, 397 S.W.2d 220 (Tex.Cr.App.1965), is directly in point. Salazar in his trial for murder complained that the trial court allowed a State’s witness to exhibit his body to the jury to show two bullet wounds which were received during the confrontation that resulted in the murder of the witness’ brother. This Court wrote:

“. . . The record reflects that after the witness had exhibited one of the wounds, the jury was taken out and counsel for the defense stated:
“ ‘Let the record reflect the witness is showing and has exhibited to the jury his body. That he has pulled his shirt up and he shows the jury a scar across his abdomen about the area of his sternum approximately three and a half to four inches in length. The said scar is purple. It stands out vividly. And also it is a raised scar or proud flesh.’
“The trial court at no time certified that the facts related by defense counsel were true and correct.
“As stated in 5 Tex.Jur.2d 380, Sec. 200:
“ ‘The statement of a ground of objection in a bill of exception is not a certificate of the judge that the facts that form the basis of the objection are true. It only shows that such an objection was made, and is accordingly insufficient. Further, mere recitals in a bill, not verified by the certificate of the judge, or otherwise revealed by the record, cannot be considered by showing injury.’
“And in Salinas v. State, Tex.Cr.App., 363 S.W.2d 265, this court held that where there were no photographs or description of the scars which would authorize this court to conclude that they had an ugly, ghastly, or revolting appearance or condition such as would be reasonably calculated to influence and prejudice the rights of the appellant before the jury, no error was shown.
“In the case at bar, there was no showing that the facts as set out in appellants’ objection were true, and therefore show no injury to the rights of the appellants.”

In the motion for rehearing the record was quoted. It showed that the judge certified that the wounds were exhibited to the jury.

In Wingate v. State, 487 S.W.2d 89 (Tex.Cr.App.1972), at page 92, we said:

“In his last ground of error, appellant complains of a ‘hoax’ perpetrated upon the court by the State’s counsel. Appellant, citing no authority, states that though the prosecuting witness Moore lay on a stretcher throughout the length of the trial, he had been seen on several occasions before the trial in a wheelchair. At the hearing on the motion for new trial, appellant’s counsel stated:
“ ‘Your honor, the man was laying on the stretcher under a blanket like a dead man and I want to make a statement now. This is different from argument. This is new evidence, something I received after the trial. And it was after the close of the trial that the District Attorney, Mr. Patterson, went to either the clerk or the court and had them call or called and said, “Come pick up the stretcher; we’re through with it.” This man doesn’t even have a stretcher; he has a wheel chair, and he goes to all of these beer joints and different places in a wheel chair, and he was laying on a stretcher under a blanket in the court room and it is highly prejudicial to the defense, highly prejudicial and it inflames the minds of the jury.’
“Nowhere other than here does the record reveal anything to back up the claim of a ‘stretcher hoax.’ Since the statement by appellant’s counsel, standing alone, may not be taken as ‘evidence’ of this claim, there is nothing for this Court to review.”

In Barrientez v. State, 487 S.W.2d 97 (Tex.Cr.App.1972), the appellant contended that during the testimony of appellant the prosecutor began showing photographs to the jury which the judge had ruled inadmissible. This Court wrote:

“. . . Appellant refers us to the record, where the following colloquy occurred:
“ ‘MR. DE GEURIN: Your Honor, I am sure it is not intentional, but Mr. Pecorino has pictures out that the Court ruled are inadmissible. They are in a position where they can be seen and it is prejudicial. We ask that he refrain from doing that.
“ ‘THE COURT: That is overruled. Go ahead.
“ ‘MR. DE GEURIN: That is overruled?
“ ‘THE COURT: You heard my ruling, sir. Be seated.’
“This statement is all we have in the record before us to substantiate appellant’s claim. There is no showing that the jury saw the photographs. Thomas v. State, 451 S.W.2d 907 (Tex.Cr.App.1970); Mills v. State, 455 S.W.2d 296 (Tex.Cr.App.1970); Salazar v. State, 397 S.W.2d 220 (Tex.Cr.App.1966). Nothing is presented for this Court to review. See Hall v. State, 466 S.W.2d 762 (Tex.Cr.App.1971).”

What is the difference between the two cases? Does the majority take statements of some attorneys as true but not others? What is the guideline?

The occurrence of the event complained of must be reflected in the record by the court certifying it occurred, by evidence properly introduced in an informal bill of exception, at a hearing on the motion for new trial, through a formal or bystander’s bill of exception, or through some certification by the trial judge that the events in fact occurred as alleged. See Hardin v. State, 471 S.W.2d 60 (Tex.Cr.App.1971); DeLeon v. State, 500 S.W.2d 862 (Tex.Cr.App.1973); Stockton v. State, 487 S.W.2d 69 (Tex.Cr.App.1972); Sheldon v. State, 510 S.W.2d 936 (Tex.Cr.App.1974); Mills v. State, 455 S.W.2d 296 (Tex.Cr.App.1970); Hall v. State, 466 S.W.2d 762 (Tex.Cr.App.1971); Jefferson v. State, 490 S.W.2d 855 (Tex.Cr.App.1973); Barber v. State, 477 S.W.2d 868 (Tex.Cr.App.1972); Nutt v. State, 144 Tex.Cr.R. 9, 161 S.W.2d 103 (1942); and Stephen v. State, 163 Tex.Cr.R. 505, 293 S.W.2d 789 (1956). This is the same rule that applies to allegations in various motions such as motions for continuance and motions for new trials. Such allegations do not prove themselves. Absent any proof, nothing is presented to this Court for review. Webb v. State, 460 S.W.2d 903 (Tex.Cr.App.1970); Hardin v. State, 453 S.W.2d 156 (Tex.Cr.App.1970); and Hanna v. State, 159 Tex.Cr.R. 2, 259 S.W.2d 570 (1953). Holding otherwise would be contra to Article 40.09, Subdivision 6, V.A.C.C.P. See Nash v. State, 486 S.W.2d 561 (Tex.Cr.App.1972).

In the case at bar we have no evidence to substantiate defense counsel’s unsworn allegations. There is no evidence to show how counsel and the appellant were seated. There was no testimony introduced, or even proffered, showing’ where Mr. Casey stood, how far he was from the appellant, exactly where he was looking, or his relationship with respect to the jury. Thus, there is nothing in the record presented to this Court to review other than the comments of Mr. Casey.

The trial judge heard the argument and the objection. He was in a better position to evaluate what occurred in his courtroom. We should not unseat the trial judge and substitute our opinion for his when we were not present in the courtroom. Who is in a better position to rule than the district judge? It is presumed that the trial judge ruled correctly until the contrary is shown.

It is difficult to understand the new holding by the majority that statements of counsel are verified as true. The statement in the concurring opinion that Article 40.-09(4), Y.A.C.C.P., is not authority for finding that counsel’s statement is an accurate statement of what occurred is correct. But it is hard to understand the next sentence, “. . . the statement itself must be taken as accurate because it was not qualified or disputed by the court or prosecutor.

It has always been the impression of this writer that the trial judge is not a litigant and is not representing a litigant. He is the judge. When he rules that ruling is presumed to be correct absent a showing to the contrary. In the present case, as in Ross v. State, Tex.Cr.App., 504 S.W.2d 862, the defense attorney could have asked the trial judge to certify to the correctness of his statement, if it were correct.

The judges concurring with the majority should review the statements of both attorneys. They are apparently in conflict. The judge settled the conflict when he ruled. Requiring the prosecutor to dispute an objection to defense counsel would be to detract from the decorum in the courtroom. This should not be encouraged.

To have the trial judge to dispute what defense counsel has stated would take away from the dignity of the court. Trial judges should not get into arguments with the attorneys. They should rule.

It has not been the practice before today for a trial judge to give reasons for his rulings. Reasons for a ruling may amount to a comment on the weight of the evidence or an opinion by the trial judge.

The new rale of today is that the trial judge must tell defense counsel his statement is not true or be reversed on appeal.

In this case, unlike Ross v. State, 504 S.W.2d 862 (Tex.Cr.App.1974), there were no statements by the trial judge ratifying the attorney’s allegations. In Ross, the trial judge said: “Yes, sir. . . . ” without

further clarifying remarks following a * statement by defense counsel. This Court held that to be a ratification by the trial judge of the facts alleged by the defense attorney. In the instant case there was no such ratification.

The trial court’s approval of the record when it is completed is not such a certification. It is certification only that all pages in the record “are true and correct copies of all proceedings, and of the court reporter’s notes; and of all exhibits, as the same appear and are of record and on file in the above entitled and numbered cause, and said record is hereby approved.” Article 40.09, V.A.C.C.P. See also Ticer v. State, 166 Tex.Cr.R. 334, 313 S.W.2d 301 (1958).

The approval of the record does not make the statements of the witnesses true even though the prosecutor or the court does not refute them.

Do Mr. Casey’s statements in and of themselves amount to a comment on the appellant’s failure to testify? Garcia v. State, 513 S.W.2d 559 (Tex.Cr.App.1974), controls. The State has a right to comment on the failure of the appellant to call certain witnesses to support his defensive theory. Here, as in Garcia, the prosecutor stated that he was referring to another witness. Dr. Stockton was mentioned during the testimony of the defense witness Dr. Anderson, but Dr. Stockton was never called. Mr. Casey, following appellant’s objection, continued to discuss the testimony of Dr. Anderson and the failure of the defense to call Dr. Stockton. Thus, the argument refers to other witnesses and not the appellant and the language used was not manifestly intended or of such character that the jury would naturally and necessarily take it to be a comment on the appellant’s failure to testify. Beal v. State, 520 S.W.2d 907 (Tex.Cr.App.1975); Lipscomb v. State, 467 S.W.2d 417 (Tex.Cr.App.1971); Anderson v. State, 504 S.W.2d 507 (Tex.Cr.App.1974).

Further, even if the statement could be construed as such a comment, defense counsel first commented on appellant’s failure to testify before the argument of the prosecutor. He argued concerning the presumption of insanity as follows:

“. . . Now, the contrary can appear — the only way it can appear is from” the evidence on that stand and by your observations of the defendant, whether he takes the stand or not, through your looking at him.”

Counsel asked the jurors to believe that appellant was insane from their observations of him “whether he takes the stand or not, through your looking at him.” He was in effect telling the jury that his client was silent and even though he did not take the stand, they could use his appearance to find him insane and not guilty.

It has always been the rule that where counsel for accused refers to his failure to testify, it was not error for the prosecutor to comment thereon. See Slater v. State, 166 Tex.Cr.R. 606, 317 S.W.2d 203 (1958); and Meador v. State, 113 Tex.Cr.R. 357, 23 S.W.2d 382 (1929), and 1 Branch’s Ann.P. C.2d, Section 395, page 414.

Following the majority of this Court, when a defendant represents himself, a statement, “Let the record reflect”, followed by his version of what happens in the courtroom will be taken as true. An example of what will be taken as true is found in State v. Townes, 522 S.W.2d 22 (Mo.Ct.App.1975). Townes, the defendant, questioned the jury panel personally. He informed the prospective jurors that he was a Black Muslim and, like other Muslims, felt that all white people were devils. After some discussion with the court, Townes stated:

“I’m saying you are [devils]. I would like to know if there is anyone here that believes he is not a Devil[?]
“The Court: Sit down. Just a minute. Mr. Sheriff, put the defendant in his chair.
“Mr. Townes: Let the record show that everyone in the room raised their hands to the question that they were Devils.
“Unidentified Juror: I didn’t raise my hand.
“Two Unidentified Jurors: I didn’t either.”

According to Townes, only three prospective jurors refuted the statement that they were devils. Under the reasoning of the majority, the statement that the other prospective jurors were devils would have to be taken as true.

In the trial of the Chicago Eight, the defendants apparently tried to take over the courtroom. See United States v. Seale, 461 F.2d 345 (7th Cir. 1972). Bobby Seale, one of the defendants who had previously informed the court that he was representing himself stated that he wanted to cross-examine a witness, William Frapolly, and the following occurred:

“Mr. Hayden (another defendant): Let the record show the Judge , was laughing.
“Mr. Seale: Yes, he is laughing.”

Under the opinion reversing the conviction a trial judge or prosecutor must refute such statements or they will be taken as true. It is a sad state of affairs when this Court requires a trial judge to get into a swearing match with litigants or attorneys.

Recently the Supreme Court of the United States held that a defendant has a right to represent himself and counsel cannot be forced upon him. See Faretta v. California,-U.S.-, 95 S.Ct. 2525, 45 L.Ed.2d 562. When some defendants, especially those who would like to destroy our system of government, defend themselves, every conceivable statement accusing the judge and prosecutor of misconduct will be made. Gutter-type tactics will be used. The majority would require the trial judge to answer them or get on their level.

We should not require trial judges to get into swearing matches with militant or other obstreperous defendants. This has never been the rule before and should not be now.

The defendant who claims something happened should ask the judge to certify to that fact. If it happened and the judge refuses to so certify, a defendant may prove the occurrence by a bystander’s bill of exception.

No reversible error has been shown. The judgment should be affirmed.

      . Article 38.08, Vernon’s Ann.C.C.P., reads as follows:
      “Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.”

      . It is observed that earlier during the-cross-examination of a lay witness for the defense as to the appellant’s mental condition the record reflects:
      “BY MR. CASEY:
      , “Q Are you telling this jury that if George Washington Hicks was to take this stand and testify, that they couldn’t believe anything that he said, because he wouldn’t know wrong from right?”
      The objection that the same was a comment on the appellant’s failure to testify was overruled.

      . The dissent relies upon Salazar v. State, 397 S.W.2d 220 (Tex.Cr.App.1965), a murder prosecution which was tried before the 1965 Code of Criminal Procedure and Article 40.09, Vernon’s Ann.C.C.P., became effective, and was thus controlled by the former Code of Criminal Procedure. In the opinion on original submission in Salazar the court held that his “bill of exception” could not be considered because the facts related by the defense counsel (that the deceased’s brother, a State’s witness, was showing his scars to the jury) was not certified by the trial court. In support thereof the court quoted from 5 Tex.Jur.2d, Appeal and Error — Criminal Cases, Sec. 200, p. 330, that such certification was required. However, this quote dealt with the statutory requirements of a formal bill of exception under the former Code of Criminal Procedure. Highly significant is the fact that in the opinion on rehearing this court, without setting out any further facts or reasoning, concluded the bill of exception was properly before this court and that exhibition of the scars was not error. An examination of the record in Salazar shows that the bill of exception involved was an informal bill of exception found in the statement of facts as opposed to a formal bill of exception. Salazar is clearly not controlling or applicable. The dissent also cites Wingate v. State, 487 S.W.2d 89 (Tex.Cr.App.1972), which involved a hearing on a motion for new trial wherein counsel merely stated he had received “new evidence” since the trial that the witness Moore used a wheelchair and not a stretcher as he had done during trial and that a “hoax” had been perpetrated on the court. This statement was not supported by evidence at the hearing and related to something counsel had learned out of court after the trial. Wingate was correctly decided, but it is not applicable to the instant case.
      The dissent also calls attention to Barrien-tez v. State, 487 S.W.2d 97 (Tex.Cr.App. 1972). Barrientez is distinguishable. There, defense counsel asserted that pictures the State had offered and which had been ruled inadmissible were in a position where they could be seen by the jury. Such assertion was not sufficient, standing alone, to establish that the jurors had seen the pictures since such fact was not within the knowledge of the assertor. It was necessary to establish that the jurors had seen the pictures before there would have been any basis to appellant’s claim that the prosecutor had exhibited the pictures to the jury.

        Ross v. State, 504 S.W.2d 862 (Tex.Cr. App.1974), mentioned by the dissent, did not involve a question of necessity of certification by the judge of the remarks made by defense counsel. It involved the right of the accused to call his wife as a witness before the jury as to the issue of the voluntariness of his confession. In the course of the opinion this court quoted defense counsel’s statement that the court had refused to permit the wife to testify and the court responded, “Yes, sir, bring the Jury in please ..” If the “Yes, sir” did in fact refer to the statement of counsel, the Ross case did not turn on that fact.
      The dissent appears to argue that the court’s approval of the record is not the certification required and tries to limit the certification encompassed by the approval of the record. We find no such limitation in the words of Article 40.09, Vernon’s Ann.C. C.P., cited by the dissent. Further, Ticer v. State, 166 Tex.Cr.R. 334, 313 S.W.2d 301 (1958), also cited in support of such limitation, did not involve the approval of the record but involved the approval of a formal bill of exception under the former Code of Criminal Procedure.
      It appears the dissent would not accept an unchallenged and unqualified statement of defense counsel made in open court as to an occurrence there duly recorded by the court reporter until such officer of the court gets
      the court to certify that the event referred to occurred. The dissent suggests in part that evidence may be offered at a hearing on a motion for new trial. It is well settled, however, that any conflict in evidence is for the trial judge at such hearing. A formal bill of exception was mentioned, but Article 40.09, subd. 6, Vernon’s Ann.C.C.P., makes clear that the office of such bill and a possible subsequent bystander’s bill relates to such action, evidence, occurrence, etc., “not otherwise shown by the record.” We repeatedly find appellate records where the prosecutor, also an officer of the court, elicits identification testimony from a witness and then states, without certification from the court, “Let the record reflect the witness had identified the defendant.” I know of no case where this court has held that such statement by the prosecutor could not be considered. There should be no double standard.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    Richard Lee BRANSON, Appellant, v. The STATE of Texas, Appellee.
    No. 50211.
    Court of Criminal Appeals of Texas.
    July 23, 1975.
    G. Brockett Irwin, Longview, for appellant.
    Donald R. Ross, County Atty. and David P. Brown, Asst. County Atty., Henderson, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for escape from custody as denounced by V.T.C.A. Penal Code, Sec. 38.07. The jury assessed punishment at two years.

The record reflects that appellant escaped from the Rusk County Jail on July 28, 1974, where he was in custody following four felony convictions in the Fourth Judicial District Court in Rusk County.

Appellant contends that the court erred in refusing to grant his requested charge that it is a defense to the prosecution that the conduct in question is justified or that such conduct is justified if the actor reasonably believes the conduct is immediately necessary to avoid imminent harm.

Appellant recognizes that this is a case of first impression in Texas, but urges that he was justified in escaping from the Rusk County Jail to seek aid by counsel and in gaining relief from sordid jail conditions.

Appellant points to V.T.C.A. Penal Code, Sec. 9.02, which provides, “It is a defense to prosecution that the conduct in question is justified under this chapter.” Appellant does not cite the Section in such chapter upon which he relies. We have reviewed Chapter 9 of the new Penal Code entitled, “Justification Excluding Criminal Responsibility,” and conclude that it does not support appellant’s contention that evidence that appellant left jail to seek aid from legal counsel and get relief from sordid jail conditions entitled him to his requested charge.

While the common law appears to have recognized that there was a possible defense to the crime of escape, a review of numerous cases furnishes no support to appellant’s contention. The Court of Appeal for the Fourth District of California in the ease of People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110 (1974) stated:

“In 1 Hale P.C. 611 (1736), it was written that if a prisoner caught fire and a prisoner departed to save his life the necessity to save his life ‘excuseth the felony.’ So, too, we may assume that a prisoner with his back to the wall, facing a gang of fellow-inmates approaching him with drawn knives, who are making it very clear that they intend to kill him, might be expected to go over the wall rather than remain and be a martyr to the principle of prison discipline.”

Numerous cases from other jurisdictions have held that intolerable living conditions in prison afforded no justification for escape. State v. Davis, 14 Neb. 439; Hinkle v. Commonwealth, 23 Ky.L.Rpt. 1988, 66 S.W. 816; Johnson v. State, 122 Ga. 172, 50 S.E. 65; State v. Cahill, 196 Iowa 486, 194 N.W. 191; State v. Palmer, 45 Del. 308, 72 A.2d 442.

We reject appellant’s contention that the court erred in refusing to grant his requested charge on justification.

Appellant contends that the court erred when it ordered that the punishment assessed by the jury in the instant case would begin when the sentence on a preceding conviction (Cause No. 18,229, in which appellant was convicted for burglary on July 22, 1974 and assessed punishment of five years) shall have ceased to operate because the court “considered his own personal knowledge of defendant’s record as a lawbreaker, prior conviction and bad reputation.”

Unlike Alley v. State, 154 Tex.Cr.R. 145, 225 S.W.2d 970, relied on by appellant, where the court considered other convictions of the defendant which were not supported by the evidence in assessing punishment, the record in the instant case contains evidence of appellant’s convictions. It is a matter of common knowledge that it costs money to keep inmates in prison, and we find no merit in appellant’s argument that the court erred when he mentioned such fact at the time appellant was sentenced.

We find no merit in appellant’s argument that the court should have followed the jury’s recommendation that appellant’s punishment in the instant case run concurrently with other sentences. We find that the note in question merely inquired of the court whether it was proper to ask if sentences of appellant would run concurrently. Be that as it may, the trial court is vested with discretion under Art. 42.08, Vernon’s Ann.C.C.P., to order two or more sentences to operate either concurrently or consecutively. Banks v. State, Tex.Cr.App., 503 S.W.2d 582; Christopher v. State, Tex.Cr.App., 489 S.W.2d 573; Morales v. State, Tex.Cr.App., 416 S.W.2d 403.

No error is shown.

The judgment is affirmed.

Opinion approved by the Court.


author: GREEN, Commissioner.

text:
    Jackie WASHINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 50235.
    Court of Criminal Appeals of Texas.
    July 23, 1975.
    Paul J. Chitwood, Dallas, for appellant.
    Henry Wade, Dist. Atty., Maridell J. Templeton, Dan D. Pitzer, John R. Roach, Dallas, Jim D. Vollers, State’s Atty and David S. MeAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of resisting arrest. See V.T.C.A., Penal Code, Sec. 38.03. Punishment was assessed at 30 days in jail and a fine of $200.00.

Appellant, in her sole ground of error, contends that the evidence is insufficient to prove that she used any force against the arresting officers to prevent or obstruct them from effecting her arrest.

The record reflects that this offense occurred January 31, 1974, after the effective date of the Penal Code enacted in 1973. The section of said Code under the terms of which this case was prosecuted reads:

“Section 38.03. Resisting Arrest or Search
“(a) A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest or search of the actor or another by using force against the peace officer or another.
“(b) It is no defense to prosecution under this section that the arrest or search was unlawful.
“(c) Except as provided in Subsection (d) of this section, an offense under this section is a Class A misdemeanor.
“(d) An offense under this section is a felony of the third degree if the actor uses a deadly weapon to resist the arrest or search.”

As stated in the commentary of Hon. Seth S. Searcy, III, and Hon. James R. Patterson following this section in V.T.C.A. Penal Code,

“This section replaces Penal Code arts. 338, 339 and 341, which prohibited opposing or resisting execution of a warrant of arrest, and is expanded to cover warrant-less arrests and searches as well.
“The section applies only to resistance by the use of force. One who runs away or makes an effort to shake off the officer’s detaining grip may be guilty of evading arrest under Section 38.04, but he is not responsible under this section. Unlike prior law, this section covers an arrest or search with and without warrant.
“As under prior law the actor must know the person he is resisting is a peace officer, or someone working with a peace officer, Granado v. State [161 Tex.Cr.R. 128], 275 S.W.2d 680 (1955); Fulkerson v. State [43 Tex.Cr.R. 587], 67 S.W. 502 (1902).”

It is appellant’s contention that the testimony of the arresting officers showed at most the crime of evading arrest as established by Section 38.04, V.T.C.A., Penal Code, and reading as follows:

“Section 38.04. Evading Arrest
“(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting to arrest him.
“(b) It is an exception to the application of this section that the attempted arrest is unlawful.
“(c) An offense under this section is a Class B misdemeanor.”

The record reflects that at about 9:00 or 9:30 P.M., January 31, 1974, Officers Bates and Snead of the Dallas Police Department, while dressed in their police uniforms, had occasion to arrest appellant on a street in Dallas while she was cursing and abusing them and inciting a group of persons to create a riot. They had informed her that they were policemen, and had done what they could to quiet her and get her to leave. She was a large woman, weighing about 240 pounds. The record reflects that Bates, in describing the arrest, stated in answer to questions as follows:

“Q What did Officer Snead do after he had told the Defendant that she was to be placed under arrest for disorderly conduct?
“A About the same time that I took ahold of her arm, Officer Snead was trying to get her to place a handcuff on her.
“Q Was he successful in placing one handcuff on the wrist?
“A Yes, one handcuff was placed on her wrist.
“Q After that handcuff was placed on her wrist, what did she do then? “A She dragged both of us to her apartment door.
* * * * * #
“Q ■ All right. What kind of force did this woman exert while she was dragging you and Officer Snead that eight to ten feet?
“A Pretty strong, neither of us could hold her.”

Bates testified that it was necessary to call in an additional cover squad, saying:

“He (Snead) had a walkie talkie and when he saw that it was — that we weren’t going to be able to get her away from there, he called for an additional squad.
* * * * *
“ . . . Did the defendant continue to struggle with both of you from the time the cover was called until the time it arrived?
“Yes.”

The testimony of Officer Snead likewise supported the contention of the State that appellant used force to “Obstruct a person [s]he knows is a peace officer from effecting an arrest . . . ” See V.T.C.A., Penal Code, Sec. 38.03. See also Granado v. State, 161 Tex.Cr.R. 128, 275 S.W.2d 680; Rendon v. State, 146 Tex.Cr.R. 163,172 S.W.2d 343 (1925 Code cases involving, however, a similar contention concerning force in resisting arrest).

We conclude that the evidence sufficiently supports the conviction of appellant of resisting arrest under the provisions of Y.T. C.A., Penal Code, Sec. 38.03, supra.

The judgment is affirmed.

Opinion approved by the Court.


author: BROWN, Commissioner.

text:
    Ex parte Robert L. CHAMBERS.
    No. 50486.
    Court of Criminal Appeals of Texas.
    July 23, 1975.
    Warwick H. Jenkins, Jenkins & Jenkins, Waxahachie, for appellant.
    Jim D. Yollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from an order entered in a habeas corpus proceeding in the 40th District Court of Ellis County.

The trial court ordered appellant remanded to the custody of Odell Smith, Sheriff of Roosevelt County, New Mexico, but stayed the execution of this order for ten days, allowing appellant time to make this appeal.

The basis of the trial court’s decision was the judge’s belief that appellant was covered by the Uniform Act for Out-of-State Parole Supervision, Art. 42.11, Vernon’s Ann.C.C.P. This article provides that persons convicted in other jurisdictions may be released to this State, and Texas will assume supervision of such parolees or probationers. The Act also provides:

“(3) That duly accredited officers of a sending State may at all times enter a receiving State and there apprehend and retake any person on probation or parole. For that purpose no formalities will be required other than establishing the authority of the officer and the identity of the person to be retaken.” Sec. 2(3).
The trial court found:
“1. That Odell Smith is the Sheriff of Roosevelt County, New Mexico, is present in Court with a Warrant for the arrest of Hobart L. Chambers: and
“2. That Hobert L. Chambers, Petitioner herein, is one and the same person as Hobart L. Chambers named in such Warrant.”

These findings are supported by the evidence, but there is no showing that appellant was ever turned over to the State of Texas to be subject to its supervision.

In Ex parte Womack, Tex.Cr.App., 455 S.W.2d 288, this Court affirmed the trial judge’s decision to remand Womack to the custody of the Harris County sheriff. Womack was being held by virtue of a parole revocation warrant from the State of Louisiana. The writ of habeas corpus having issued, a hearing was held at which appellant was identified by a Texas parole officer as a Louisiana parolee under his supervision. The State also offered the official records of the Texas Board of Pardons and Paroles concerning Womack, including the certificate of his parole.

We do not hold that the procedure in Womack, supra, be followed strictly in every case involving Art. 42.11, but before the simple procedure described in that statute can be used to return a parolee or probationer to the jurisdiction of his conviction, there must be evidence that the Act is applicable.

There being no showing that appellant was being supervised in this State under the Uniform Act for Out-of-State Parole Supervision, appellant must be extradited. Art. 51.13, Sec. 3, V.A.C.C.P.

The judgment of the trial court is reversed and appellant is ordered released from custody.

Opinion approved by the Court.


author: PEDEN, Justice.

text:
    Virginia THOMAS, Appellant, v. James Bullock THOMAS, Appellee.
    No. 16470.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 22, 1975.

      John F. Schaffer, Houston, for appellant.
    Michael D. Inlow, Houston, for appellee.
   PEDEN, Justice.

Mrs. Virginia Thomas appeals from the judgment entered in a divorce action after a non-jury trial. In her points of error she complains that 1) the trial court’s partition of the community property was unjust and unfair, 2) the court failed to consider appel-lee’s civil service retirement fund and 3) the award of child support was inadequate.

All of the property of the parties was community property.

The trial judge did not make findings of fact or conclusions of law in response to the appellant’s request for them, but this omission apparently was not timely called to the court’s attention as required by Rule 297, Texas Rules of Civil Procedure, so we must affirm the judgment if it can be supported on any theory presented by the record, and we must view the evidence in a light most favorable to the appel-lee. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1951). Therefore, in reviewing the division of the parties’ community estate we accept the appellee’s value testimony.

The trial court awarded to the wife the equity in the parties’ home, its furnishings and appliances, an automobile, the bank accounts in her name and possession, half of the parties’ U. S. Savings Bonds, proceeds of her thrift and pension plan and all of her personal effects. The husband was awarded the other three bank accounts, the funds accumulated under his N.A.S.A. retirement plan, half of the parties’ U. S. Savings Bonds, an automobile and all jewelry and personal property then in his possession.

Approximately $18,059.33 held in a trust for the benefit of the parties’ two younger children was ordered held for the same purpose under a written trust to be administered by the parties. The husband was ordered to pay an attorney’s fee of $1500 for the wife. The wife was appointed managing conservator of the parties’ three children, whose ages were sixteen, thirteen and eleven, and the husband was ordered to make child support payments of $100 per month to each child “until the child with respect to whom payments are made shall attain the age of eighteen.”

The husband’s evaluation of the property awarded to the wife was $25,642. The attorney’s fee is a factor to be considered in making an equitable division of the estate. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950). When the attorney’s fee is added to the value of the wife’s share, it amounts to $27,142. Again using the husband’s evaluation, and subtracting from his share the $1500 attorney’s fee, the value of the property awarded to him is $84,-251.66. Thus the husband’s share was about 56% of the total, and the trial court’s division favored him by about $7,100.

Article 3.63 of Vernon’s Texas Family Code, V.T.C.A. provides: “In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems fair and right, having due regard for the rights of each party and any children of the marriage.”

The statute makes clear, and it is well settled in Texas law, (both under this statute and the earlier, similarly-worded one) that the trial court has broad discretion in dividing the estate of the parties.

The trial court’s action in exercising this wide discretion should be corrected on appeal only where an abuse of discretion is shown in that the disposition made of some property is manifestly unjust and unfair. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1928).

The court’s duty is to make an equitable division of the estate, considering the conditions and needs of the parties and all of the surrounding circumstances. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950). The division need not be equal, Williams v. Williams, 160 Tex. 99, 325 S.W.2d 682 (1959), so long as it is not so disproportionate as to be inequitable, Bowling v. Bowling, 373 S.W.2d 829 (Tex.Civ.App.1963, no writ), and so long as the circumstances justify awarding more than one-half to one spouse. Duncan v. Duncan, 374 S.W.2d 800 (Tex.Civ.App.1964, no writ); Keene v. Keene, 445 S.W.2d 624 (Tex.Civ.App.1969, writ dism.). Justice Claude Williams stated for the court in Waggener v. Waggener, 460 S.W.2d 251 (Tex.Civ.App.1970, no writ):

“The law permits a variety of factors to be looked to as justification for an unequal division. The points of inquiry upon which evidence should be accepted and tested by a trial court in making its decision as to equitable division of the property to be divided are enumerated in Speer’s Marital Rights in Texas, Vol. 3, Sec. 835, pp. 178-179 and include (1) the nature of the property; (2) the relative rights of the parties and the children; (3) the condition of the parties and their ability to make a living; (4) the earning power, business opportunities, capacities, and abilities of the parties; and (5) the benefit which a spouse not at fault would have derived from the estate of the other spouse through a continuance of the marriage. These basic factors have consistently been examined and considered by trial courts in carrying out the statutory mandate to decree a just and fair division of property.”

A careful examination of the entire record in this case does not reveal circumstances which we consider justify the unequal division which was ordered. Neither party was alleged or shown to be to blame for ending the marriage. The husband is 46 years old and is a graduate engineer employed by N.A.S.A. at an annual salary of $23,500, while the wife is employed as a secretary at an annual salary of about $9,900. The disparity between the shares awarded to the parties does not appear to be related to providing support or education for the children. The only factor we can find in the record which might influence an unequal division of the property in favor of the appellee was his testimony concerning his employment. He said that if anything happened to him the only retirement funds he has are those held under his government retirement plan because he cannot draw Social Security benefits. He has about $12,500 in his retirement fund. He can draw it out if he leaves N.A.S.A. He testified that those who have left N.A.S.A. have found it almost impossible to find a job and that people in this area do not regularly hire aerospace engineers. An objection was made based on lack of materiality of this testimony. The trial judge stated that he would take judicial knowledge of it; that he had been keeping up with that situation.

A court may take judicial notice of a fact so notorious or one whose existence is so easily ascertainable that proof will not be required. 1 McCormick & Ray, Texas Law of Evidence, 170, § 151. It is doubtful if the matter in question was a proper one for judicial notice, but even if properly in evidence it does not furnish an equitable basis for the property division ordered in this case. We think it amounted to an abuse of judicial discretion.

We find no merit in the appellant’s second point. The trial court considered the appellee’s civil service retirement fund and awarded it to him.

We also overrule her third point. We cannot say from the record in this case that the award of child support was inadequate.

In Wilson v. Wilson, 225 S.W.2d 236 (Tex.Civ.App.1949, no writ) it was held that since the child support order may have been made in the light of the disposition of certain property (which disposition was reversed), the judgment was also reversed with respect to the child support order.

In our case we think there was no connection between the amount of the support payments ordered and the property division, so we reverse and remand only as to the latter. Rule 434, Texas Rules of Civil Procedure.

The judgment of the trial court is left undisturbed in all things except that with respect to the division of the community property it is reversed and remanded.


author: STEPHENSON, Justice.

text:
    PAYNE-LADEWIG, INC., Appellant, v. Paul BROWN, d/b/a Paul’s Electric Co., Appellee.
    No. 7704.
    Court of Civil Appeals of Texas, Beaumont.
    May 29, 1975.
    Rehearing Denied July 10, 1975.

      Clarence 0. Bently, Dallas, for appellant.
    James A. Builta, Lampasas, for appellee.
   STEPHENSON, Justice.

This is an appeal from an order overruling defendant’s plea of privilege. Plaintiff relied upon subdivisions 5 and 28 of Vernon’s Tex.Rev.Civ.Stat.Ann. art. 1995 (1964) to maintain venue in Bell County. No findings of fact or conclusions of law were filed. The parties will be referred to here as they were in the trial court.

Paul Brown brought this suit against Payne-Ladewig, Inc., a Texas corporation, for damages for breach of contract. The uncontroverted evidence shows: Plaintiff is in the air conditioning and electric contracting business. He lives in Lampasas, and his business is in the same city. He made a bid on that type of work on a housing project at Fort Hood, Texas, in June 1973 and was subsequently awarded that contract. He had secured a bid from defendant on the air conditioning and heating equipment. Plaintiff received the price from defendant by telephone the morning of the bidding. The written bid from defendant, offered in evidence, was received in the mail about two days after the bid opening, and was dated June 14, 1973. In the telephone conversation, plaintiff was told the price was “F.O.B. Job Site, Fort Hood, Texas.” The material information was also received by plaintiff in the mail. The equipment as quoted by defendant was not acceptable to the Corps of Engineers, and plaintiff had to buy equipment from other companies in order to do the job. The equipment he bought cost him more than defendant’s bid price. The building to be constructed was in Bell County. On cross examination plaintiff testified he had a firm order “if it met the conditions,” but he did not ever ask defendant to ship the equipment.

Subdivision 5 reads as follows:

“Contract in writing. — If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

The pertinent part of subdivision 23 reads as follows:

“Suits against a private corporation . may be brought ... in the county in which the cause of action or part thereof arose . . . .”

That latter provision has been interpreted by the Supreme Court of Texas to mean “that either some part of the transaction creating the primary right, or some part of the transction relating to the breach of that right, must have occurred in the county where the suit is brought" (91 S,W.2d 676). Stone Fort Nat. Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674 (1936). Also, in Employers Casualty Company v. Clark 491 S.W.2d 661 (Tex.1973), it is clear that under subdivision 23, a plaintiff must prove a cause of action by at least proving a right and a breach by defendant.

Plaintiff had to prove either that the contract was made in Bell County, or that the contract was breached in Bell County, in order to maintain venue there. Delhi Gas Pipeline Corporation v. Allgood, 492 S.W.2d 651 (Tex.Civ.App.-Tyler 1973, no writ).

The law is well established that a contract is made at the place where the acceptance of the offer is given. Payne & Keller, Inc. v. Southwest Tank & Treater Co., 491 S.W.2d 464 (Tex.Civ.App.-Tyler 1973, no writ). According to the record before us, there is no evidence that either an offer or an acceptance was made in Bell County. Even though plaintiff testified at length to a telephone conversation with defendant, there is no hint that plaintiff was in Bell County at the time. The written evidence shows defendant directed all matters to Lampasas, Texas, which is not in Bell County.

Subdivision 5 is not available to plaintiff in order to maintain venue in Bell County, under the facts of this case. In attempting to rely upon the quotation dated June 14, 1973, as a written contract performable in Bell County, plaintiff overlooks the fact that no order was ever placed by plaintiff for delivery of the equipment covered in that quotation. Plaintiff's suit is not one for breach of contract because of failure to deliver that material to a site located in Bell County. For subdivision 5 to be applicable, the action relied upon must be upon the written obligation. LeFors v. Finkner, 448 S.W.2d 574 (Tex.Civ.App.-Tyler 1969, no writ); Fidelity Union Life Insurance Company v. Evans, 477 S.W.2d 535 (Tex.1972); Owens v. Sherrard Motor Company, Inc., 496 S.W.2d 113 (Tex.Civ. App.-Tyler 1973, no writ); Reed v. Eakins, 509 S.W.2d 947 (Tex.Civ.App.-Amarillo 1973, no writ).

Reversed and remanded with instruction to the trial court to transfer this case to Dallas County.

Reversed and remanded.


author: COULSON Justice.

text:
    Ex parte Ioannis (John) GNESOULIS, Relator.
    No. 1229.
    Court of Civil Appeals of Texas, Houston (14th Dist.)
    July 2, 1975.
    Rehearing Denied July 23, 1975.

      Marvin Schulman, Houston, for appellant.
    Gus J. Zgourides, Bryan Coleman, Houston, for appellee.
   COULSON Justice.

A petition for writ of habeas corpus was filed with this Court by Ioannis (John) Gne-soulis (hereinafter relator). The relator complains that he has been illegally confined and restrained of his liberty by the Sheriff of Harris County, Texas, by virtue of an order of commitment issued by the Judge of the Court of Domestic Relations # 4, Harris County, Texas.

Relator was held in contempt of court for failing to make payments under the terms of temporary orders of the court effective during the pendency of the divorce, and for breach of a restraining order enjoining the parties from harming one another in any manner during the pendency of the divorce. As punishment relator was fined $100 for his acts which were calculated to cause harm to his wife, Georgia Gnesoulis, and he was ordered confined in the Harris County Jail until he purges himself of contempt by making payments in the amount of $890.19 in compliance with the temporary orders together with all costs of court, the $100 fine, and attorney’s fees in the amount of $200.

The court’s first temporary order in the matter of the marriage of Georgia Gnesoul-is and John Gnesoulis was entered on March 15,1973, by agreement between the parties. During the pendency of the divorce, as temporary alimony and child support, John Gnesoulis was ordered to pay, make current, and keep current, the payments on the home, insurance, maintenance fund, taxes, utilities, telephone bills, hospitalization, car payments, auto insurance, doctor, dental and pharmacy bills, and $325 per month. Subsequently, on July 31, 1973, the court entered an order reducing the monthly payments to be made by relator from $825 per month to $250 per month. However, all other provisions of the March 15, 1978, order remained unchanged. The trial on the merits of the divorce was had on April 23, 1974. The attorneys, thereafter, presented briefs relating to property and made oral arguments. On February 28,1975, the trial judge sent a letter to the attorneys representing both parties stating that:

I have concluded that Judgment should be entered in the above cause as follows:
1. The parties are granted a divorce and custody of the minor child is awarded to the mother. The father shall have visitation on the first and third weekends from 6:00 P.M. Friday to 6:00 P.M. Sunday, three weeks during the months of June, July or August with 30 days notice, December 25th at 1:00 P.M. to December 31st at 6:00 P.M., the eve of the child’s birthday from 4:00 P.M. to 7:00 P.M. and Father’s Day from 9:00 A.M. to 5:00 P.M., if that day does not fall on one of the regular visitation periods. The father is ordered to contribute the sum of $450.00 per month for the support of his minor child, until the child shall attain 18 years of age or until further orders of the Court.
2. The wife is awarded as her separate property and estate the following:
A. The Homestead at 12362 Honey-wood Trail, Houston, Texas, and she shall pay and hold the husband harmless therefrom.
B. The Cutlass automobile now in her possession. She is to pay the balance due, if any, thereon.
C. A Judgment in the sum of $75,-000.00 to be secured specifically by husband’s undivided one-third interest in the 2.9 acres on Spencer Highway and husband’s Stock in JFA.
D. Attorneys for wife are awarded a Judgment in the sum of $10,000.00 against the husband, same representing the reasonable value of the legal services rendered by them in this cause.
3. The husband is awarded as his separate property and estate the following:
A. The balance of all the separate and community property which he ownes (sic) or claims, save and except that awarded to wife above.
4. The sum of $75,000.00 awarded to wife above shall be payable at the rate of $500.00 per month with the Judgment providing that in the event that any such installment is 30 days over due that execution shall issue for the then balance of said amount.
5. The husband shall be entitled to take the minor child as a dependent for Income Tax purposes.
6. The husband shall be responsible for and liable for all Income Tax for the year 1974, it being understood that those sums withheld from the wife’s salary are not refundable to her, but is to be applied upon the community income liability for the year 1974. Each party to pay Income Tax on sums each earn for the year 1975.
7. All costs of Court are assessed against the husband.
If the parties are unable to agree upon the form of Judgment, I request that each party submit a proposed Judgment to the Court.
If either of you gentlemen care to argue about the substance of the Judgment, please be advised that I will not consider same until after the formal Judgment is entered. You will be given an opportunity to present your views upon Motion for New Trial.

An unsigned copy of the letter obtained from the court’s file, but, without a file mark of the clerk of the court, was introduced into evidence at the contempt hearing.

After receipt of the letter, the relator terminated all payments under the temporary orders. He thereafter paid only the $450 per month child support payment as provided for in the letter of February 28, 1975, and disregarded all other provisions of said letter. A complaint in contempt was filed by Georgia Gnesoulis alleging that relator was in contempt of court for failure to make temporary alimony and child support payments during the pendency of the divorce and for failure to comply with the temporary orders to make mortgage payments on the parties’ homestead, tax and utility bill payments, automobile payments, and premium payments on several insurance policies held by the parties. Georgia Gnesoulis also sought to have the relator held in contempt for abusing her physically and assaulting her person. A hearing was had on the contempt complaint on May 29, 1975. After hearing the evidence, the trial court issued its order of commitment pursuant to its determination that the relator was in contempt of court. The commitment order was executed and the relator was taken into custody and held until released on bond after this Court granted leave to file this petition for writ of habeas corpus.

The primary thrust of the relator’s application for writ of habeas corpus is that the trial court’s order holding him in contempt is void because the letter written by the trial judge on February 28, 1975, constituted a rendition of judgment which terminated the effect and force of the temporary orders under which the relator was held in contempt.

We hold that as a matter of law the letter written by the trial judge on February 28, 1975, did not constitute a rendition of judgment in this case. The rendition of a judgment is effected when the trial court in open court declares the decision of the law upon the matters at issue. It is distinguishable from the entry of judgment which is a purely ministerial act by which the judgment is made of record and preserved. As has been often stated, the rendition of judgment may be oral as well as written. A judgment can be rendered orally in open court, or by written memorandum signed by the judge and delivered to the clerk for filing, signifying to the clerk in his official capacity and for his official guidance the sentence of law pronounced by the trial judge. Comet Aluminum Company v. Dibrell, 450 S.W.2d 56 (Tex.Sup.1970); Knox v. Long, 152 Tex. 291, 257 S.W.2d 289 (1953); Coleman v. Zapp, 105 Tex. 49, 151 S.W. 1040 (1912). There is no indication in the record that this letter from the trial judge was ever filed with the clerk. Further, it is obvious from the very general terms of the provisions, including the fact that it does not specify which party was to be granted the divorce, that the trial judge intended this letter to be no more than a guideline upon which the attorneys for both parties were to draw up and submit their proposed judgments. In spite of the fact that the trial judge indicated that he would not hear argument about the substance of the judgment until the entrance of a final judgment and motions for new trial filed subsequent thereto, the judge left a great deal of room for refinement and definition of the terms of the judgment as proposed in the letter. It is the useful prerogative of the trial judge to communicate, both orally and in writing, with the attorneys of the parties in crystal-izing the provisions of a judgment prior to rendition. Marulanda v. Mendez, 501 S.W.2d 366 (Tex.Civ.App. — San Antonio 1973, writ ref’d n. r. e.).

The relator’s second ground for attack upon the validity of the contempt order is that the letter of February 28, 1975, when taken together with the orders of March 15, 1973, and July 31, 1973, creates uncertainty as to the obligation owed by the relator which precludes the finding of contempt.

The relator, on the advice of his attorney, affirmatively decided to abide by the child support provisions of the February 28, letter, and to disregard all previous orders of the trial court and all other provisions of the letter. At no time has the relator contended that the letter constituted any more than a rendition of judgment. Vernon’s Tex.Family Code Ann. § 3.59 (1975) states that: “[ajfter a petition for divorce or annulment is filed, the judge, after due notice may order payments for the support of the wife, or for the support of the husband if he is unable to support himself, until a final decree is entered.” (Emphasis ours.) Even had the letter of February 28, 1975, constituted a rendition of judgment, it would not have suspended the force and effect of the temporary orders issued by the trial court in 1973. Presumably, those orders would be effective until judgment had been entered. The entrance of judgment is the ministerial act by which a permanent evidence of the judgment is created. Knox v. Long, supra; Coleman v. Zapp, supra. No ambiguity was created because, as a matter of law, the February 28th letter could have had no effect upon the validity of the earlier temporary orders.

The relator’s final contention concerning the validity of the contempt order is that “the affidavit of contempt filed with the court charges relator with multiple offenses and is therefore void and violative of due process of law.”

Relator contends that the affidavit in question did not meet the provisions of Vernon’s Tex.Code Crim.Proc.Ann. art. 21.24 (Supp.1975). In support of his position the relator cites Ex Parte Geneeov, 143 Tex. 476, 186 S.W.2d 225 (1945). In that case, the Supreme Court determined that the district court had the power to assess punishment for more than one act of contempt in a single proceeding based upon allegations contained in a single affidavit. In reaching that conclusion the Supreme Court first determined that there had been no violation of due process. However, the court discussed possible statutory support for the position taken. The court noted that contempt proceedings are “somewhat criminal in nature” and analogous to a misdemeanor. At the time of the Geneeov decision, in misdemeanor cases, separate offenses could be charged in separate counts and the whole matter disposed of in one trial. However, that rule was changed by the Texas Legislature in 1973 by the amendment of Article 21.24. It is now necessary in misdemeanor cases to charge separate offenses in separate informations. The petitioner reasons that, because of this change, it is now necessary that affidavits in contempt proceedings comply with the new provisions of Article 21.24. We find this contention to be without merit.

As noted in Geneeov contempt actions are somewhat criminal in nature. It is not necessary that the procedures followed in a contempt proceeding strictly conform to criminal procedure. The proper rule to be applied in this case is the standard of due process. We find, as the Supreme Court found in Geneeov, that the use of a single affidavit which sets out specific acts of contempt in individual paragraphs does not violate the principles of due process. Ex parte Henderson, 512 S.W.2d 37 (Tex.Civ.App.—El Paso 1974, no writ); Ex parte Loreant, 464 S.W.2d 223 (Tex.Civ.App.—Houston [1st Dist.] 1971, no writ). Under the present practice in Texas, the respondent in a contempt proceeding can be given adequate notice as to which acts or omissions are the basis of the contempt complaint. It would be needless formalism to require separate affidavits concerning each alleged act of contempt. In a constructive contempt proceeding, the requirements of due process are met if the affidavit in contempt is specific and clearly informs the respondent of the charges against him. The affidavit in this case clearly meets those standards.

Relator’s application for writ of habeas corpus is denied and he is ordered remanded to the custody of the Sheriff of Harris County, Texas.


author: CLAUDE WILLIAMS, Chief Justice.

text:
    James SIMON, Appellant, v. Sandra Elaine WATSON, Appellee.
    No. 18609.
    Court of Civil Appeals of Texas, Dallas.
    May 29, 1975.
    Rehearing Denied June 26, 1975.

      Wm. Andress, Jr., Andress, Woodgate & Lodewick, Dallas, for appellant.
    Jack Ayres, Jr., Kelsoe & Paternostro, Dallas, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

This is an appeal from an interlocutory order appointing a receiver. Two questions are presented: (1) The sufficiency of the pleadings to support the appointment of a receiver, and (2) whether the trial court abused its discretion in appointing the receiver under the circumstances presented. We hold that the pleadings are sufficient and that the trial court did not abuse its discretion. The judgment is affirmed.

Resolution of the questions presented require a chronological review of the proceedings in the trial court. On November 12, 1974, Sandra Elaine Watson brought an action against James Simon in which she sought, inter alia, a mandatory injunction requiring Simon to surrender possession of certain real property in Dallas County, Texas and also restraining and enjoining him from attempting to sell or otherwise dispose of items of property presently in his control or possession. Thereafter, notice was served upon Simon to appear and show cause why a temporary injunction should not issue, as requested by plaintiff. Simon answered and appeared for hearing on November 21, 1974. After the hearing had started, the court continued the matter until December 6, 1974, on which date Sandra Elaine Watson filed her “trial amendment” supplementing her original petition, in which she prayed, in the alternative, that the court immediately and forthwith appoint a receiver to take possession and control of the property and oust the defendant therefrom. The matter was then passed until December 13, 1974, on which date plaintiff Sandra Elaine Watson filed her first amended original petition in which she enlarged her cause of action against Simon and again prayed for a mandatory injunction removing Simon from the real property in question and preventing him from using or disposing of two automobiles. In this pleading, no reference was made to the appointment of a receiver, and the prayer for relief therein sought only the issuance of the injunction. The matter was continued until January 10, 1975. On that date, after both sides had rested their testimony, and while the matter was being argued to the court, the trial judge indicated that he would be willing to appoint a receiver but that plaintiff would “have to redo” the pleadings. At that time, counsel for plaintiff requested permission of the court to file a trial amendment which Would be the same as the first trial amendment. Counsel indicated that he had inadvertently omitted the request for a receiver from the first amended original petition. The trial court granted such request over objection of attorney for Simon. On J anuary 14,1975, the second trial amendment, requesting the appointment of a receiver, was filed. On January 17, 1975, the trial court entered an order denying the issuance of a temporary injunction. On that same date, during the continuation of the hearing, the trial judge announced from the bench that he would appoint a receiver but would not require the receiver to oust Simon from the premises. Counsel for Simon objected to the appointment of a receiver on that date because of lack of pleadings and also because no evidence had been presented in support of the receivership. Thereafter, on January 21, 1975, the trial court signed an order appointing Whitley R. Sessions as receiver. The order recited that the court heard and considered the entire record in the cause, including the evidence and the pleadings of plaintiff, for the appointment of a receiver. The order directed the receiver to take possession of, manage and conserve two automobiles and to permit Simon to occupy the real property in question, provided that he make all payments due on certain notes to First Federal Savings and Loan Association, pay all taxes due, maintain policies of insurance on the properties, and furnish the receiver with evidence of compliance with the above conditions.

Simon duly and timely perfected his appeal from this interlocutory order and posted supersedeas bond set by the trial court.

The main thrust of appellant’s first three points of error is that the trial court erred in permitting appellee to file the second trial amendment on January 14, 1975, and that the appointment of a receiver thereafter was improper. We cannot agree. It is apparent from this record that this case involved a number of hearings which proceeded over a period of several weeks, during which time successive pleadings were filed on behalf of appellee in support of her contentions. While appellee sought only mandatory injunctive relief in her first petition, she enlarged her request for relief in the form of the appointment of a receiver by the filing of her first trial amendment. Appellant apparently lodged no objection to the filing of this pleading. After the hearings proceeded, appellee filed her first amended original petition in which she again sought injunctive relief but omitted a prayer for the appointment of a receiver. This omission was called to the attention of counsel for appellee who requested leave of the court to file the second trial amendment which appears to be almost identical to the first trial amendment. At the time the second trial amendment was filed, the attorney for appellant leveled no objection thereto as to form or substance, so that any defects were affirmatively waived. Texas Rules of Civil Procedure, rule 90. The only objection advanced by appellant was to the effect that since the trial had ended, the court was without authority to permit the filing of a trial amendment. Tex.R.Civ.P. 67 provides that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pléadings. In that case, such amendment' of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues, may be made by leave of court on motion of any party at any time up to the submission of the case to the court or jury, but failure to so amend shall not affect the result of the trial of these issues. Tex.R.Civ.P. 90 provides that every defect, omission or fault in a pleading either of form or substance, which is not specifically pointed out by motion or exception in writing and brought to the attention of the judge in the trial court before the instruction or charge to the jury or, in a nonjury case, before the rendition of judgment, shall be deemed to have been waived by the parties seeking reversal on such account. The rules relating to the filing of pleadings have always been liberally construed by the courts, especially where the complaining party can demonstrate no real harm to his cause resulting from the filing of the pleading. In this case, appellant has not demonstrated such harm. Appellant was made aware, by the filing of the first trial amendment, several weeks before, that a receiver had been requested. Moreover, after the court permitted the filing of the second trial amendment, appellant filed no objections to the form or substance of same, and the trial court granted additional time, to January 17, 1975, to allow appellant time to meet the issue thus presented.

We hold that the trial court did not abuse its discretion in permitting the filing of the second trial amendment at a time when the evidence had been closed but the case had not been completely decided. Jim Walter Corp. v. Bass, 356 S.W.2d 356 (Tex.Civ.App.—Texarkana 1962, no writ); Texas Candy & Nut Co. v. Horton, 235 S.W.2d 518 (Tex.Civ.App.—Dallas 1950, writ ref’d n. r. e.); Cleveland v. Alpine Lumber Co., 75 S.W.2d 977 (Tex.Civ.App.—El Paso 1934, no writ); and Brown v. Kelley, 212 S.W.2d 834 (Tex.Civ.App.—Fort Worth 1948, no writ).

In its fourth and last point of error, appellant contends that the trial court abused its discretion in appointing a receiver under the circumstances and without hearing any evidence upon receivership as distinguished from temporary injunction. As related above, a number of hearings were conducted by the court on the dates set forth. However, the only record presented to this court by appellant consists of two volumes relating to the matters that were presented on January 10 and January 17, 1975. In each of these volumes we find no transcribed testimony of witnesses. Each volume consists of arguments of counsel and colloqpy between counsel and the court. From the record before us, it is evident that the trial court heard testimony of witnesses during the prior hearings held in November and December 1974. Appellant did not see fit to bring a record of this testimony to this court. At the conclusion of both the January 10 and 17 hearings, the trial court certified that such proceedings were incomplete and did not constitute the entire record in the cause. The court specifically certified:

THE ABOYE TESTIMONY, however, contained in this transcription of procedures does not contain the evidence heard by this Court which forms the basis for the granting of Receivership in this cause, and this transcription of proceedings held on the 10th of January, together with the transcription of procedures held on the 17th of January, 1975, do not constitute the entire record in this cause and further fail to embody the sworn testimony and exhibits heard by this Court during the trial of this cause and which form the basis of granting of this Receivership in conjunction with these proceedings.

In the light of this record, we are governed by the well-established rule of law that in absence of a statement of facts, the appellate court will presume that there was sufficient evidence to sustain the findings and judgment of the trial court. Anchor v. Wichita County Water Improvement Dist., 129 Tex. 70, 103 S.W.2d 135, 112 A.L.R. 70 (1987); Uvalde Construction Co. v. Joiner, 132 Tex. 593, 126 S.W.2d 22 (1939); Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551 (1946); Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943 (1958); Ehrhardt v. Ehrhardt, 368 S.W.2d 37 (Tex.Civ.App. — Waco 1963, writ ref’d).

We find no abuse of discretion on the part of the trial court in issuing the order appointing a receiver in this case. Appellant’s fourth point is overruled.

The judgment of the trial court is affirmed.


author: WALTER, Justice.

text:
    Jo Adele STEGALL, Appellant, v. Wayne HARRIS, Appellee.
    No. 4739.
    Court of Civil Appeals of Texas, Eastland.
    June 6, 1975.
    Richard B. Saxe, Legg, Saxe & Baskin, Midland, for appellant.
    James L. Wilks, Nunn, Griggs, Beall & Wilks, Sweetwater, for appellee.
   WALTER, Justice.

This is a will contest case. Mr. Wayne Harris filed a copy of the alleged last will and testament of H. D. Black for probate. Jo Adele Stegall, the only child of the deceased, filed a petition in opposition. She alleged Harris failed to produce the last will of her father and that as a matter of law same was presumed to have been revoked and that no facts existed to rebut such presumption. The court rendered judgment probating said instrument as H. D. Black’s last will and testament and appointed Wayne Harris as independent executor. Mrs. Stegall has appealed.

She contends the court erred in finding the alleged copy offered for probate had not been revoked because the evidence establishes conclusively that no facts were presented to rebut the presumption that her father’s will had been revoked.

The record shows conclusively that the last will and testament of H. D. Black, deceased, was not produced in court. The copy of Mr. Black’s will dated December 30, 1972 was received in evidence over the objection of the appellant.

Wayne Harris testified substantially as follows:

I live in Rotan. H. D. Black died at Rotan in the Callin Hospital on June 14, 1974. At the time of his death, Mr. Black owned real and personal property of the approximate value of $75,000 or $100,000. I read the original will signed by Mr. Black in December 1972. I believe the copy filed for probate is a correct and accurate copy of the original. I was named independent executor in the will. The reason I did not produce the original will is because I could not find it. I don’t know where the original will is located. I have made inquiries about the original and his safety deposit box has been checked but I could not produce it. I just have not been able to produce it. To the best of my knowledge this copy is an exact copy of the original. The will leaves Vs of his estate to his brother, Frank Black; ½ to a brother, F. B. Black; and to Erma Black, his former wife, and the mother of Mrs. Jo Adele Stegall. Mr. Black informed me that he was naming me as executor in his will and asked me to read the will. I do not remember whether it was at his home or at the bank where I work that he asked me to read the will. Mr. Black physically gave me the will and I read it. He informed me that Mr. Norman Arnett prepared the will for him. The will was in a “lawyer’s blue back”. I was unsuccessful in finding a will.

The parties agree on the applicable rule in this case and each cite Bailey v. Bailey, 171 S.W.2d 162 (Tex.Civ.App.—Amarillo 1943, no writ), wherein the rule is announced as follows:

“The law is well established in this State, as well as in almost every jurisdiction in this country, that in a proceeding to probate a will, where it is shown that it was executed by the decedent and when last seen or accounted for, it was in his possession or in a place to which he had ready access but after his death it can not be found, the presumption arises that the testator destroyed it in his lifetime with the intention of revoking it. The presumption that it was revoked by the testator stands in the place of positive proof to that effect and he who seeks to establish the will assumes the burden of overcoming the presumption by producing facts and circumstances contrary thereto or that it was fraudulently destroyed by some other person.”

Appellee contends the rule announced in Bailey is inapplicable because there is no direct testimony of any kind that the will was ever in the possession of the deceased. We disagree.

We hold the admissible facts and circumstances show conclusively that the presumption set forth in Bailey v. Bailey, supra, was established and the proponent introduced no evidence of probative force to rebut the presumption.

The judgment is reversed and judgment is rendered for the appellant.