author: TODD, Judge.

text:
    McCOY LUMBER INDUSTRIES, INC., Plaintiff-Appellee, v. PARKVIEW TOWERS, INC., Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    Feb. 24, 1978.
    Certiorari Denied by Supreme Court Aug. 21, 1978.
    Callicott, Marshall, Havron & Maurer by Richard Marshall, Nashville, Fredric J. Chester, Jr., Athens, for plaintiff-appellee.
    Gullett, Steele, Sanford, Robinson & Merritt by Allen D. Lentz and Thomas W. Steele, Stephen W. Ramp, Nashville, Paul H. Clark, Townsend, for defendant-appellant.
   TODD, Judge.

OPINION

With the concurrence of participating judges, the original opinion has been abridged for publication.

The defendant, Parkway Towers, Inc., has appealed from the decree of the Chancellor ordering enforcement of the material-man’s lien of plaintiff, McCoy Lumber Industries, Inc., against property of defendant, Parkway. Other defendants have not appealed.

Defendant employed National Building Corporation to construct an office building on its property in Nashville. National subcontracted with Steel Systems and Design Corporation to fabricate and furnish window panel units for installation in defendant’s building. Plaintiff contracted with Steel Systems to furnish lumber for use in fabricating the window panels and delivered said lumber to Steel Systems at its plant in Greenback, Tennessee.

Prior to any shipment of lumber by plaintiff to Steel Systems, National Corporation agreed to pay Steel Systems by check payable to plaintiff and Steel Systems in order to assure plaintiff of payment for its lumber. Two such checks resulted in partial payment of plaintiff’s claim. For the unpaid portion, plaintiff gave proper and timely lien notice and prosecuted this suit to a final decree ordering sale of defendant’s property to satisfy plaintiff’s lien in the amount of $11,459.32 plus recording fee and costs.

The gravamen of the sole assignment of error is as follows:

“(a) The Chancellor erred in finding that the Plaintiff carried its burden of proof that the lumber supplied by it to Steel Systems & Design Corporation was actually used in the construction of Parkway Towers.”

The statute allows a lien only for materials “which are incorporated into the improvement.” T.C.A. § 64-1101.

There is no evidence that the lumber was delivered by plaintiff to the job site, or that the lumber delivered to Steel Systems at Greenback, Tennessee was ever used in fabrication of panels delivered to the job site.

In Dealers Supply Co., Inc. v. First Christian Church, 38 Tenn.App. 568, 276 S.W.2d 769 (1955) it was held that materials specially prepared by a “take off” from the building plans need not be delivered directly to the job site, but might be delivered to the subcontractor for delivery and installation. However, such special selection and preparation for plaintiff’s job is not shown in the present case.

The lumber furnished by plaintiff was a special “fire resistant” lumber, but there is no showing that it was not equally suitable for use in any other building. The lumber was shipped in standard sizes and lengths and there was nothing about it to make it peculiarly suited to defendant’s building.

In Mills v. Terry Mfg. Co., 91 Tenn. 469, 19 S.W. 328 (1892), it was held that window blinds which were readily useable in other buildings were not lienable items unless delivered to the job site or otherwise shown to have been used in the building.

In the present case, there is no evidence, direct or circumstantial, which could satisfy a reasonable mind that the lumber furnished by plaintiff was used in defendant’s building. The agreement of National to make checks payable to plaintiff might create a liability upon National for failure to do so, but such agreement does not constitute evidence that deliveries made after the agreement found their way into defendant’s building, nor does it otherwise impose lien liability upon defendant’s property.

Plaintiff points out that no other lumber company filed a lien. This circumstance, standing alone, is insufficient to satisfy plaintiff’s burden of proof to show that plaintiff’s lumber was used in defendant’s building rather than elsewhere.

In respect to the relief decreed against appellant and/or its property, the Chancellor’s decree is reversed; plaintiff’s suit against appellant is dismissed; and all costs incident to appellant’s presence in the suit, including costs of this appeal, are taxed against plaintiff.

Reversed and Dismissed.

SHRIVER, P. J., and DROWOTA, J., eon- . cur.


source: Caselaw Access Project

author: MATHERNE, Judge.

license: Public Domain

text:
    MERCHANTS BANK, Plaintiff-Appellee, v. STATE of Tennessee, WILDLIFE RESOURCES AGENCY, Defendant-Appellant.
    Court of Appeals of Tennessee, Western Section.
    Feb. 16, 1978.
    Certiorari Denied by Supreme Court June 12, 1978.

      Michael E. Terry, Asst. Atty. Gen., Nashville (Brooks McLemore, Jr., Atty. Gen., of counsel), for defendant-appellant.
    Eddie L. Headrick, L. Harlen Painter, Bell, Painter, McMurray, Callaway, Brown & Mashburn, Cleveland, for plaintiff-appel-lee.
   MATHERNE, Judge.

The issue at bar is the constitutionality of T.C.A. § 51-709, which purports to extend to owners and others who have an interest in property seized as contraband under the Fish, Game and Wildlife Resources Statutes the right to assert their interests in the seized property.

I.

Officers of the Wildlife Resources Agency seized a 1976 Dodge Van owned by Gene Edward Vest, which was being used to transport a female deer in violation of T.C.A. § 51-425. Merchants Bank had a perfected security interest in the vehicle upon which there was a balance owing of $2,259.50.

After an administrative hearing the Executive Director of the Wildlife Resources Agency declared the vehicle to be contraband and ordered that it be sold as property of the state, depriving the bank of its interest therein. The bank filed its Petition for Review in the chancery court pursuant to T.C.A. § 4-523. After a hearing, the chancellor decreed:

“(5) The Tennessee State Legislature could not have intended by T.C.A. 51-707 and 51-709 for a secured lienholder with a perfected security interest to be deprived of its collateral without just compensation where the innocence of the lienholder from the acts which lead to the forfeiture is undisputed.
(6) The proper interpretation of the aforementioned conflicting Statutes is that while the State of Tennessee Wildlife Resources Agency is entitled to confiscate the contraband property and dispose of it pursuant to Statute, the State of Tennessee Wildlife Resources Agency must purchase the promissory note from the Merchants Bank by paying the amount of $2,259.50, including interest, plus attorney’s fees of 15% or $338.93, and thereafter the Wildlife Resources Agency will be subrogated to all the rights and privileges of the Merchants Bank in said note and may proceed by Court action against Gene Edward Vest on said note.”

The state appeals under one assignment of error: “The chancellor erroneously interpreted the wildlife forfeiture scheme and found a state obligation to protect the interests of innocent secured parties.”

We first hold that under the record the vehicle was being used to transport a female deer in violation of T.C.A. § 51-425. After considering the record, the admissions of counsel in open court and their briefs, we also hold that Merchants Bank was innocent of any violation of the law or knowledge that Vest was or had been guilty of such violations which resulted in the seizure of the vehicle.

With those factual matters determined, we must consider the pivotal issue of the constitutionality of the statute as applied to the facts. The petitioner Merchants Bank alleged in its petition “(t)hat T.C.A. Section 51-709 is unconstitutional in that it fails to provide for fair and impartial hearing and this violates the claimant’s right to due process of law.” We conclude that the allegation as worded would justify a review based upon both the federal and state constitutions. We will, however, for the reasons hereinafter stated, restrict our review to the Constitution of the State of Tennessee.

II.

The state relies heavily upon the decision of the Supreme Court of the United States in Astol Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974), wherein a yacht was seized under the statutes of Puerto Rico. It appears that the innocent lessor of the yacht made claim for its return. As we view the opinion, the Court held that (1) the lessor was not denied due process of law by the omission of statutory provisions for pre-seizure notice and hearing; (2) the lessor was not unconstitutionally deprived of its property without just compensation even though it was not involved in the criminal enterprise and had no knowledge that the lessee was so involved.

The appellee before this Court attempts to distinguish Astol. We do not so attempt, and we accept that decision as the law insofar as the Federal Constitution is concerned. We will rest our decision on the Constitution of the State of Tennessee and not fall into the error pointed out in Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), wherein the Court held that the Oregon Supreme Court based its decision on federal law because of its attempt to distinguish an earlier United States Supreme Court case from the Hass case then before the Oregon Court.

Admitting that under the Federal Constitution the appellee-claimant would have no rights at all, we will, subject to final review by the Supreme Court of Tennessee, determine the appellee’s rights under the Constitution of Tennessee. A state court can not under a state constitution restrict the rights of its citizens contrary to the rights granted by the Federal Constitution; but a state court can grant to its citizens broader and more comprehensive rights under the state constitution than as allowed by the Federal Constitution. See Oregon v. Hass, supra; State v. Kaluna (1974) 55 Haw. 361, 520 P.2d 51; State v. Williams (Tenn.1976) 547 S.W.2d 895, footnote 1.

III.

The vehicle was seized under the provisions of T.C.A. § 51-707, which provides in pertinent part, as follows:

Any firearm, equipment, appliance or conveyance used in violation of the provisions of §§ 51-425 — 51-427 including any truck, automobile, boat, airplane, or other vehicle, other than a common carrier, and in which any deer, bear, or wild boar is located, or which is used in transporting such animals in violation of the provisions of this title, is hereby declared contraband property and shall be confiscated and forfeited to the state upon seizure. * * * * * *
Upon seizure, or as soon thereafter as practical, the executive director shall cause to be given written notice to the person from whom the seizure was made and to all others with a legal interest in the property seized who are either made known or who by a reasonable examination of public records of titles and liens should have been discovered. * * *.

The sole remedy of a claimant for the recovery of property seized as contraband under T.C.A. § 51-707 is as provided in T.C.A. §§ 51-709 through 715. State v. McCrary (1959) 205 Tenn. 306, 326 S.W.2d 473; T.C.A. § 51-715.

As pertains to the recovery of the vehicle, we are here concerned with T.C.A. § 51-709 which provides, as follows:

Claim for seized property — Hearings— Hearing officer. — Any person claiming the property so seized as contraband property may, at any time within ten (10) days from the date of seizure, file with the executive director at Nashville a claim in writing requesting a hearing and stating his interest in the property seized. The executive director shall set a time and place for a hearing in the county in which the violation occurred or at any other place in the state of Tennessee in the discretion of the executive director within ten (10) days from the date the claim is filed. The executive director is hereby empowered to subpoena witnesses and compel their attendance at any hearing authorized under this title. All parties to the proceeding, including the person claiming such property, shall have the right to have subpoenas issued by the executive director to compel the attendance of all witnesses deemed by such parties to be necessary for a full and complete hearing. All witnesses shall be entitled to the witness fees and mileage provided by law for witnesses in the circuit and chancery courts, which fees and mileage shall be paid as a part of the cost of the proceeding.
The executive director is hereby authorized to appoint a hearing officer, who shall be a member of his staff, to conduct said hearings in the absence of the executive director and said hearing officer to serve upon designation by the executive director. The hearing officer shall make a written finding of fact and conclusions of the law together with his recommendation to the executive director. Thereafter if the director concurs, the executive director shall issue the necessary order together with his findings and conclusions as the record justifies. The executive director may also conduct such hearings as he may deem necessary and proper. At all hearings provided for herein, the executive director shall provide a stenographer to take a stenographic record of the evidence adduced at such hearing. The claimant shall be entitled to a copy of said stenographic record, upon application thereof and upon paying the reasonable costs thereof to be fixed by the executive director.
In any hearing convened upon proper petition of an interested party the initial burden shall be upon the state to show by preponderance of the evidence that the property in question was used in such a manner as to be declared contraband as provided in § 51-707. [Acts 1951, ch. 115, § 45 (Williams, § 5178.74); 1957, ch. 382, § 10; impl. am. Acts 1974 (Adj. S.), ch. 481, §§ 6, 7; Acts 1975, ch. 41, § 2.]

The statute (§ 51-707) excepts only the property of common carriers from forfeiture. The same section, however, also provides that any motor vehicle which has been finally forfeited to the state “and which has not been ordered by any court or competent authority to be returned to any claimant” shall be sold at public auction. This provision contemplates that there could be an order that the property be returned to a claimant.

The statute further provides for written notice to be given by the Executive Director of the Wildlife Resources Agency to the party from whom the property was taken and to all others who have a legal interest in the property, who are either made known or who by a reasonable examination of the public records should have been discovered. Section 51-711 provides, as follows:

In the event the ruling of the Executive Director is favorable to the claimant, the Executive Director shall deliver to the claimant the vehicle so seized.

The statutes provide a very comprehensive and elaborate claim procedure requiring notice to all who claim an interest in the seized property and a hearing with subpoena powers and court reporters. We hold, however, that as to innocent claimants of the seized property the entire procedure is meaningless. The only issue that can be determined under T.C.A. § 51-709 is whether the property seized was used in such a manner as to be declared contraband under the provisions of T.C.A. § 51-707; there is no provision which permits an innocent claimant to prevail once the property has been declared to be contraband. This aspect of T.C.A. § 51-709 is singular and at variance with other statutes of the state dealing with contraband goods. See T.C.A. § 52-1404 wherein the confiscation procedure set out in the Drug Control Act provides a method by which an innocent claimant can prevail. See also § 57-623 for similar provisions in the procedure set up for the confiscation of property under the laws relating to unstamped liquor.

A hearing is an integral part of any valid confiscatory statute. In Stockton v. Morris and Pierce (1937) 172 Tenn. 197, 110 S.W.2d 480, it was held that a statute which allowed summary confiscation of unstamped tobacco was denial of due process by failing to provide for a hearing at any stage of the procedure.

“Forfeiture of rights and property cannot be adjudged by legislative acts, and confiscation without a judicial hearing after due notice, would be void as not being due process of law.” State v. Del Rio Turnpike Co. (1914) 131 Tenn. 600, 175 S.W. 1143, quoting from Cooley, Constitutional Limitation 518 (7th ed.).

Due process of law has been held to mean “a law which hears before it condemns, which proceeds on inquiry, and renders judgment only after trial.” Tennessee Central Ry. Co. v. Pharr (1946) 183 Tenn. 658, 194 S.W.2d 486, citing 16 C.J.S. Constitutional Law § 567. A hearing must be an orderly proceeding in which the person to be affected is afforded an opportunity to defend, enforce, and protect his rights. 16 Am.Jur.2d, Constitutional Law, § 572.

The “hearing” allowed by T.C.A. § 51-709 might, by the grace of the particular hearing officer, permit an innocent claimant of the seized property to prove his innocence. The establishment of that fact, however, would have no bearing on the outcome of the hearing, because that section mandatorily sanctions the seizure of the property if the state carries the initial burden of proving that the property was used in such a manner as to be declared contraband under T.C.A. § 51-707. A hearing that is so arranged, limited and fixed by legislative enactment that the property of innocent parties is summarily confiscated is no hearing at all.

The only decision we have found dealing with the constitutionality of T.C.A. § 51-709 is an unreported opinion by the Middle Section of this Court in Findlay v. Davis, filed at Nashville on July 1, 1955. The Court there held that the statute was not violative of the due process clauses of the federal and state constitutions. That lawsuit, however, dealt with a guilty owner who was caught hunting deer with a shotgun loaded with buckshot. We agree with the Court that the shotgun was subject to confiscation, and that the claimant, being the guilty owner of the shotgun, was not deprived of any constitutional right. Under those circumstances, when the state has carried the burden of proving that the property was used in such a manner as to be declared contraband, that is all to which the guilty owner-claimant was entitled; there was no abuse of due process. In the case at bar, however, we are dealing with an innocent lienholder who, under the statute, has no effective means of asserting its interest in the seized property.

We conclude that under the statutes the only way an order could be entered returning the seized property to any claimant, innocent or guilty, would be for the state to fail to carry the burden of proving that the property was used in such a manner as to be declared contraband under T.C.A. § 51-TOT. There is no other defense, and regardless of the innocence of the claimant the property can not be returned to him.

When applied to innocent claimants, we hold that T.C.A. § 51-709 is unconstitutional in that it violates two provisions of the Declaration of Rights of the Constitution of Tennessee, namely, Article 1, Section 8, and Article 1, Section 17. To be valid under those constitutional provisions the statute must permit a claimant the right to prove his interest in the property and his innocence of the statutory violation which resulted in the seizure. When these facts are established to the satisfaction of the hearing officer or court, the interest of the innocent claimant must be protected. The legislature may promulgate reasonable requirements for the proving of innocence as was done in T.C.A. § 52-1404 and 57-623, but it is constitutionally required that a claimant have a hearing at which he can effectively establish his interest in the property and prove that he is innocent of the statutory violation.

IV.

The chancellor, without passing on the constitutionality of the statute, apparently attempted to make an equitable disposition of the lawsuit in the light of what he perceived to be an unjust situation. We hold that an unconstitutional statute can not be given an equitable application; it must not be applied at all to the extent that it is violative of the constitution.

We therefore hold that, under the facts, the state had the right to seize the vehicle; the claimant Merchants Bank, being an innocent claimant, has the right to be protected to the extent of its interest in the vehicle; the extent of the claimant’s interest is the sum of $2,259.50, plus interest at 6% per annum from the date the vehicle was declared to be contraband; any additional amounts realized from the sale of the vehicle is the property of Gene Edward Vest and is, under the law, contraband property forfeited to the State of Tennessee.

The decree of the chancellor is reversed, and a decree will be entered in this Court ordering the state agency to sell the vehicle at public auction, to apply the proceeds first to the payment of the claim of Merchants Bank as heretofore decreed, and the balance of the sales price, if any, is the property of the state.

The cost in this Court is adjudged against the State of Tennessee.


author: RUSSELL, Judge.

text:
    Roy Lee SHERROD, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    March 16, 1978.
    Certiorari Denied by Supreme Court June 26, 1978.
    Edward G. Thompson, A. Kemp Stallings, and Danny T, Ferguson, Memphis, for appellant.
    Brooks McLemore, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Hugh W. Stanton, Jr., Dist. Atty. Gen., Jerry T. Stauffer, Asst. Dist. Atty. Gen., Memphis, for appellee.
   RUSSELL, Judge.

OPINION

Roy Lee Sherrod has appealed the order of the trial court overruling his motion to vacate his pleas of guilty to two counts of rape, one count of robbery with a deadly weapon, and one count of robbery. Sher-rod’s trial on one of the rape counts and the armed robbery count was under way when he elected to change his pleas on all four counts from not guilty to guilty. In the judgment below, in addition to being rendered infamous, the appellant was sentenced to 27 years in the State penitentiary for each of the rapes, 27 years for the armed robbery, and 10 to 15 years for the robbery, all of the sentences to be served concurrently. For reasons hereinafter stated, that judgment is affirmed.

The appellant’s motion to vacate his guilty pleas was based on two assertions: (1) The pleas were not knowingly and voluntarily entered and (2) Sherrod could, if his motion were granted, present exculpatory witnesses about whom he had not told his attorney before entering the guilty pleas.

The burden is upon the appellant to prove his allegation that his guilty pleas were not knowingly and voluntarily entered. Adams v. State, 474 S.W.2d 170 (Tenn.Cr.App.1971). In an effort to meet that burden, Sherrod has presented only his uncorroborated testimony at the hearing on his motion that he had not understood that by pleading guilty he was waiving his right to an appeal. That testimony is belied by the fact that this record contains a waiver, signed by the appellant, which, among other things, indicates that Sherrod knew that the right to an appeal is waived by the entry of a guilty plea. The waiver had been explained to Sherrod by both his appointed attorney and the trial court. At the conclusion of the hearing on the appellant’s motion, the trial court found as a matter of fact that the guilty pleas had been knowingly and voluntarily entered. Upon this record, we cannot find that the evidence preponderates against the trial court’s finding. See Miller v. State, 508 S.W.2d 804 (Tenn.Cr.App.1973).

Having found that the appellant’s guilty pleas were knowingly and voluntarily entered, we need not reach his argument concerning new witnesses. Shaw v. State, 457 S.W.2d 875 (Tenn.Cr.App.1970). However, inasmuch as the record shows that these witnesses were known to Sherrod before his trial began and that he had made no effort to obtain their testimonies, he would not be entitled to a new trial even in the absence of his guilty pleas. Hawkins v. State, 220 Tenn. 383, 417 S.W.2d 774 (1967).

The judgment of the trial court is affirmed.

SAM L. LEWIS and FRED GILLIAM, Special Judges, concur.


author: BYERS, Judge.

text:
    Ralph L. JANOW, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    April 6, 1978.
    Certiorari Denied by Supreme Court June 19, 1978.

      John C. Littleton, William B. Parker, Chattanooga, for appellant.
    Brooks McLemore, Jr., State’s Atty. Gen., Robert L. Jolley, Jr., Asst. State Atty. Gen., Nashville, Stephen M. Bevil, Asst. Dist. Atty. Gen., Chattanooga, for appellee.
   OPINION

BYERS, Judge.

The Appellant was tried on a two count indictment which alleged in the first count that he had committed burglary' and in the second count that he had become an habitual criminal. In a bifurcated trial on the two counts of this indictment, the Appellant was found guilty of burglary and found to have become an habitual criminal. He was accordingly sentenced to a term of life imprisonment.

The Appellant does not attack the sufficiency of the evidence on either count. It is sufficient to say that on January 29, 1976, at approximately 9:45 p.m., he and another man broke into a fraternal club in Chattanooga with larcenous intent. Further, the past record of the Appellant sufficiently supports the finding that he is an habitual criminal as defined in T.C.A. § 40-2801.

The Appellant says the two count indictment should have been quashed because the first count of the indictment was not signed by the foreman of the grand jury and showed that it was returned in the March, 1976, term while the second count of the indictment, which was signed by the grand jury foreman, showed it was returned in the April, 1976, term of court; that the Habitual Criminal Statute, T.C.A. § 40-2801, is unconstitutional because the punishment is extreme and mandatory and because prosecutorial authorities arbitrarily •apply the provisions thereof; and, that the jury should have been instructed that they did not have to apply the statutory punishment under the Habitual Criminal Statute if they found the punishment to be harsh even though the Appellant had attained the status of an habitual criminal.

The assignments of error are overruled and the judgment of the trial court is affirmed.

The Appellant’s attack upon the indictment for failure of the foreman of the grand jury to sign the first count is based upon the theory that the first count of the indictment charging the base offense of burglary and the second count of the indictment alleging that the Appellant had become an habitual criminal are two separate and distinct indictments returned at different terms by different grand juries.

This claim arises because of the top of the body of the first count is typed “Criminal Court March Term, 1976” and at the top of the body of the second count of the indictment is typed “Criminal Court April Term, 1976.”

We are of the opinion, however, that this record reflects only one indictment returned by the same grand jury in the April, 1976, term of court. We are persuaded to this view because the caption on the indictment shows that both the first and second counts of the indictment were returned on April 14, 1976, which would fall within the April, 1976, term of the court.

The erroneous statement of an incorrect term of court at the top of the indictment is immaterial and does not invalidate an indictment where the caption shows the term at which the indictment is preferred. Mitchell v. State, 16 Tenn. 514 (1835); Firby v. State, 62 Tenn. 358 (1874). This indictment meets those requirements. There is nothing in this record to support the Appellant’s claim that separate indictments by separate grand juries were returned.

We have found no authority that holds that the foreman of the grand jury must endorse each count of a multi-count indictment.

Where the foreman of the grand jury endorses the second count of the indictment to indicate that the entire document is the action of the grand jury in returning a true bill, as in this case, the provision of T.C.A. § 40-1706 requiring the endorsement of the grand jury foreman is fulfilled.

The Appellant’s contention that the Habitual Criminal Statute is unconstitutional because it constitutes cruel and unusual punishment has been previously answered adversely to him by the Supreme Court of this State. Pearson v. State, 521 S.W.2d 225 (Tenn.1975); Canupp v. State, 197. Tenn. 56, 270 S.W.2d 356 (1954). The penalty under this statute does not constitute cruel and unusual punishment.

Likewise, the alleged Constitutional infirmity of this statute claiming that it allows prosecutorial selectivity in its application to those who are subject to its terms has been previously held not to create a Constitutional infringement. Brown v. State, 1 Tenn.Crim.App. 462, 445 S.W.2d 669 (1969). See also, Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962).

The special request made by the Appellant sought to have the trial court instruct the jury that they did not have to fix the punishment at life imprisonment even though the evidence convinced them beyond a reasonable doubt that the Appellant had become an habitual criminal within the terms of the Habitual Criminal Act.

The Appellant asserts that this requested charge was proper because in State v. Mackey, 553 S.W.2d 337 (Tenn.1977), the Supreme Court held that on a plea of guilty all relevant factors and circumstances should be considered in fixing punishment for the offense on which the plea of guilty was entered. We cannot see that Mackey should be construed to authorize the giving of an erroneous instruction to a jury in a case involving a determination of whether the Appellant has reached the habitual criminal status. The punishment for one who has reached this status is life imprisonment—no more, no less.

The request sought an instruction which was erroneous and contrary to the punishment provisions of the Habitual Criminal Act. T.C.A. § 40-2801. The trial court properly rejected this request. In Wright v. State, 217 Tenn. 85, 394 S.W.2d 883 (1965), commenting on a similar request, the Supreme Court said:

“As a matter of fact they didn’t have the right to disregard what the Legislature had defined as making an habitual criminal even though juries sometimes do, and even though they had a right under the charge herein, as in all criminal charges that are properly given, to be the judges of both the facts and the law as given to them by the court.”

Although juries may sometime find contrary to the evidence presented and the law applicable thereto, so that a person shall not be held to account for his actions, the cou.'t should not inform them that they may disregard the applicable law in arriving at their verdict.

DWYER, P. J., and RUSSELL, J., concur.


text:
    William Thomas HOUSTON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    April 17, 1978.
    Certiorari Denied by Supreme Court June 26, 1978.

      James T. Milliken, Johnson City, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert L. Delaney, Asst. Atty. Gen., Nashville, Lewis W. May, Jr., Dist. Atty. Gen., Mountain City, William R. Mooney, Asst. Dist. Atty. Gen., Johnson City, for appellee.
   OPINION

RUSSELL, Judge.

William Thomas Houston has appealed his conviction for murder in the first degree. In the judgment below, the appellant was sentenced to 30 years in the State penitentiary. For reasons hereinafter stated, that judgment is affirmed.

By his first assignment of error the appellant alleges that he was illegally extradited from Ohio to Tennessee. Because Houston has been tried and convicted, he cannot now be heard to complain of the procedure by which he was brought into Tennessee. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), rehearing denied in 343 U.S. 937, 72 S.Ct. 768, 96 L.Ed. 1344; Swaw v. State, 457 S.W.2d 875 (Tenn.Cr.App.1970). This assignment is overruled.

Error is assigned upon the basis of the trial court’s overruling the appellant’s motion to dismiss filed on November 24, 1976. In the motion, Houston asserted that he had been denied his right to a preliminary hearing afforded by T.C.A. § 40-1131. That statute provides that:

“In all criminal cases, prior to presentment and indictment, whether the charge be a misdemeanor or a felony, the accused shall be entitled to a preliminary hearing, whether the grand jury of the county be in session or not.
If the accused is indicted during the period of time in which his preliminary hearing is being continued, or at any time before the accused has been afforded a preliminary hearing on a warrant, he may abate the indictment upon motion to the court. Provided, however, that no such motion for abatement shall be granted after the expiration of thirty (30) days from the date of the accused’s arrest.”

A warrant for Houston’s arrest was issued in January of 1976. He was arrested on a fugitive warrant by an F.B.I. agent in Lo-rain, Ohio, on April 13, 1976. The indictment against him was returned on May 11, 1976. He was surrendered to the custody of the State of Tennessee on July 8, 1976. Instead of requesting a preliminary hearing before the return of the indictment, Houston elected to flee the jurisdiction. He then failed to move to abate the indictment within 30 days of his. arrest. This assignment is without merit.

The appellant contends that his right to counsel was violated by the trial court’s delay in appointing an attorney to represent- him. While Houston was surrendered into the custody of the State of Tennessee on July 8, 1976, he did not file an affidavit of indigency until August 19,1976. On September 8, 1976, the trial court ap-' pointed James T. Milliken to represent Houston. The record is destitute of any showing that the appellant was prejudiced by the interval between his request for counsel and the trial court’s appointment. This assignment is meritless.

The appellant’s next assignments of error revolve about the testimony and an out-of-court statement of Kathy Weber Jayco. Mrs. Jayco and the victim, Patricia Ann Frazier, had lived together in the apartment where the murder occurred. Mrs. Jayco was present in the apartment on the night of the killing, January 15, 1976. Kathy Weber Jayco had given a statement to officers of the Johnson City Police Department. On the day of the trial, April 29, 1977, the appellant’s counsel was given a copy of that statement. The appellant maintains that by waiting until the day of the trial, the State was acting in violation of the trial court’s December 14,1976, order commanding the State to produce all exculpatory material and information. The exculpatory part of Mrs. Jayco’s statement is said to be her observation that the man who shot and killed Patricia Ann Frazier “stuttered real bad”. In view of the appellant’s brother’s testimony that the appellant stutters when he has been drinking and the appellant’s father’s testimony that the appellant has a drinking problem, we would hardly characterize Mrs. Jayco’s statement as exculpatory. Moreover, the appellant failed to request a continuance upon receiving a copy of the statement. This assignment is overruled.

The appellant claims he was unfairly surprised by Mrs. Jayco’s testifying. He argues that the State, by listing Mrs. Jayco on the indictment by her maiden name, Kathy Weber, violated T.C.A. § 40-2407, which calls for the district attorney general to list on an indictment the names of the witnesses he intends to call. Since T.C.A. § 40-2407 is directory only, Aldridge v. State, 470 S.W.2d 42 (Tenn.Cr.App.1971), a witness is not disqualified from testifying even when his name is entirely omitted from an indictment. The appellant did not object to Mrs. Jayco’s taking the witness stand nor did he request a continuance before she did so. Therefore, we must reject his contention that he was unfairly surprised by her testifying.

The appellant challenges Mrs. Jay-co’s in-court identification of him as the man who killed Patricia Ann Frazier. His complaint is based on the fact that prior to the trial Mrs. Jayco was shown a photograph of Houston, at which time she identified him as the killer. In light of the appellant’s failure to object to the in-court identification, this assignment is not properly before us. We do point, out, however, that in response to the trial court’s question Mrs. Jayco stated emphatically that her identification of Houston as the murderer was based on her observation on the night of the killing and not on her subsequent perusal of Houston’s photograph. Though the lack of objection is sufficient to dispose of the appellant’s complaint that his counsel was not present when Mrs. Jayco was shown his photograph, we note in passing that there is no right to counsel at the State’s pre-trial photographic displays. United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). These assignments of error are overruled.

In his next assignment of error, the appellant challenges the legal sufficiency of the convicting evidence. Kathy Weber Jay-co testified that on the evening o.f January 15, 1976, Houston and an accomplice came into the Johnson City apartment where she and Patricia Ann Frazier had been living. She said the two men stole her purse and a valise containing three pounds of marijuana. As they were leaving, Houston shot Miss Frazier twice. Dr. Thomas P. Potter, Jr. testified that Miss Frazier’s death was caused by two .25 caliber bullet wounds in the abdomen. The appellant’s brother, Larry Houston, and Glenn White both testified that a few days prior to the crime they had heard the appellant discuss his intention of stealing marijuana from a Johnson City Apartment occupied by two women. White said that on the occasion of that discussion the appellant had a .25 caliber automatic pistol in his possession; Larry Houston said he gave his brother 30 rounds of .25 caliber ammunition. Larry Houston stated that on January 16, 1976, the day after the killing, he saw the appellant who told him that things had gone sour and that he had to shoot someone. We hold that the evidence is sufficient to support the jury’s verdict that Houston is guilty of murder in the first degree. See Phillips v. State, 455 S.W.2d 637 (Tenn.Cr.App.1970). This assignment is without merit.

The appellant contends that the trial court erred in declining to rule in advance on whether the State could use a 1960 conviction to impeach Houston’s testimony if and when he took the witness stand. The motion was made before the appellant had presented any of his proof. The trial court indicated it would not rule on the motion until Houston had testified. Houston did not testify on his own behalf. We find no error in the trial court’s disposition of this motion.

The appellant’s final assignment of error involves the trial court’s refusal to grant his motion for a continuance made at the conclusion of the appellant’s proof. The continuance was requested so the appellant could procure a character witness to impeach the testimony of his brother, Larry Houston. The potential witness, a sheriff in North Carolina, had not been subpoenaed. In view of the appellant’s failure to show that he and his counsel had been diligent in discovering this witness and in bringing him to the trial, we hold that the trial court did not abuse its discretion by refusing to grant the motion for a continuance. The judgment of the trial court is affirmed.

DWYER, P. J., and BYERS, J., concur.


author: SAM D. JOHNSON, Justice.

text:
    Paul H. HUBBARD, Receiver in Bankruptcy for Jack Riley, d/b/a Webb’s City Drug, Petitioner, v. Jeffrey L. LAGOW, Assignee for Temple National Bank, Respondent.
    No. B-7321.
    Supreme Court of Texas.
    May 31, 1978.
    Ñaman, Howell, Smith, Lee & Muldrow, Sue Stepp and Paul Hubbard, Waco, for petitioner.
    Carroll, Carroll & Brown, James L. Carroll and Gerald M. Brown, Temple, for respondent.
   SAM D. JOHNSON, Justice.

This case presents the question of whether a receiver in bankruptcy has standing to seek a writ of error appeal from a default judgment which was rendered against the bankrupt prior to the receiver’s appointment. The court of civil appeals determined that the receiver in bankruptcy, Paul H. Hubbard, did not have standing to appeal as he was not a party in the trial court proceedings and was not the virtual representative of Jack Riley, the defendant in the trial court proceedings. Therefore, the court of civil appeals dismissed the appeal without considering it upon the merits. 559 S.W.2d 133. We reverse the judgment of the court of civil appeals and remand the case to that court for consideration of the appeal on its merits.

On April 21, 1976, Temple National Bank brought suit on a promissory note against Jack Riley, doing business as Webb’s City Drug. The promissory note in the principal amount of $22,750.96 was secured by security interests in all the drugstore’s inventory, accounts receivable, business equipment, and fixtures. On May 24, 1976, the bank assigned all its interest in the note, the security agreements, the financing agreements, and the pending lawsuit against Riley to Jeffrey L. Lagow, trustee. On May 25, 1976, Lagow moved for a default judgment against Riley and sought foreclosure of the liens on the property pledged by the various security agreements. Although Riley had been served with process, he failed to answer or to make an appearance in the cause of action. Consequently, on May 25, 1976, the trial court rendered a default judgment against Riley for the principal amount of the note plus interest and attorneys’ fees, amounting to a total of $27,-758.07. The court also ordered that all security interests held by Lagow be foreclosed and the goods and chattel secured be delivered to Lagow. The assets of the drugstore were sold at a.public sale to the highest bidder for a sum of $31,500. Notice of the sale was sent to Riley, as well as to creditors of Riley’s drugstore — Parke Davis and Company and Southwestern Drug Corporation.

On May 28, 1976, Riley filed for reorganization under Chapter XI of the Bankruptcy Act. Thereafter, on June 4, 1976, upon application of Southwestern Drug Corporation, a creditor, for appointment of a receiver for the assets of the debtor, the bankruptcy court appointed Paul H. Hubbard receiver of the assets and property of John Riley, doing business as Webb’s City Drug. On November 24, 1976, shortly before expiration of six months succeeding entry of the default judgment in the trial court, Hubbard filed his application for writ of error to the court of civil appeals seeking revision and correction of the trial court judgment. Specifically, Hubbard objected to the trial court’s failure to order a judicial sale upon foreclosure of the drugstore property; instead, the court had ordered the property delivered directly to Lagow. Hubbard filed a petition for writ of error in the court of civil appeals, attaching a copy of the default judgment. In his brief to the court of civil appeals Hubbard further appended the order of the bankruptcy court, United States District Court, Western District of Texas, San Antonio Division, appointing Hubbard as receiver in Cause No W-76BK-107, styled, In re: John Riley d/b/a Webb’s City Drug.

During oral argument before the court of civil appeals, the court apparently questioned its jurisdiction to hear the matter since Hubbard was not a party of record in the trial court proceedings. Pursuant to Rule 406, Texas Rules of Civil Procedure, Hubbard filed a motion to sustain the appellate court’s jurisdiction with an affidavit attached establishing facts in support of jurisdiction. In his motion Hubbard asserted that he had the right to bring the appeal as he had succeeded to the interests of Riley as the legal representative of Riley’s interests under the Bankruptcy Act and was the virtual representative of Riley. The court of civil appeals held that writ of error appeals are only available to parties to the litigation in the trial court or to parties covered under the exceptions enunciated in Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex.1965). In Cavanaugh the Supreme Court held that a party may pursue a writ of error appeal if that party is covered under the doctrine of virtual representation which requires an identity of interests between the party in the trial court and the party seeking appeal. The court of civil appeals held that Hubbard and Riley did not have this essential identity of interests. The intermediate court reasoned that Hubbard, as a receiver, was only an interim stakeholder and was required to protect the creditors’ interests, not the bankrupt’s. The court of civil appeals also rejected Hubbard’s contention that he was Riley’s successor in interest and, therefore, entitled to pursue the appeal. Accordingly, the court of civil appeals held that appeal by writ of error from a judgment against Riley was not available to Hubbard as a receiver in bankruptcy.

Article 2249, Texas Revised Civil Statutes Annotated, provides that an appeal of a judgment of a district court in civil cases may be taken to the court of civil appeals by writ of error. Article 2255, Texas Revised Civil Statutes Annotated, further provides that such writs of error “may be sued out at any time within six months after the final judgment is rendered.” The right to seek a writ of error appeal is limited by Article 2249a, Texas Revised Civil Statutes Annotated, which provides:

“Section 1. No party who participates either in person or by his attorney in the actual trial of the case in the trial court shall be entitled to review by the Court of Civil Appeals through means of writ of error.
“Sec. 2. All laws and parts of laws, insofar as they conflict with this Act, are repealed. Writ of error shall continue to be available under the rules and regulations of the law to a party who does not participate in the trial of the case in the trial court.” [Emphasis added.]

The courts have consistently recognized that such writ of error appeals are available to “those who were parties to the trial court suit but did not participate in the actual trial of the case.” Gunn v. Cavanaugh, supra, at 724. Furthermore, the Supreme Court in Cavanaugh noted the long-established principle enunciated in Smith v. Gerlach, 2 Tex. 424, 426 (1847), which states that a writ of error appeal “can only issue at the instance of a party to the suit, or of one whose privity of estate, title or interest appears from the record of the cause in the court below, or who may be the legal representative of such party.” [Emphasis added.] See also Wood v. Yarbrough, 41 Tex. 540 (1874).

Hubbard maintains that a Chapter XI receiver in bankruptcy is the legal representative of the bankrupt. Accordingly, he asserts that such a receiver is entitled to seek a writ of error appeal from a judgment rendered against the bankrupt when neither the bankrupt nor the receiver participated in the trial court proceedings. Accordingly, Hubbard maintains that the court of civil appeals erred in holding that Hubbard lacked standing to pursue the writ of error appeal from the default judgment against Riley.

Under the Bankruptcy Act, the receiver may be appointed upon application to the bankruptcy court by any party in interest, which includes the debtor himself, a creditor, or a committee of creditors. Bankruptcy Act, 11 U.S.C. § 732 and Rules of Bankruptcy Procedure, 11 U.S.C. Rule ll-18(b). A receiver appointed under Chapter XI proceedings serves as an officer of the court and is required to have no conflict of interest with the debtor’s estate. Rules of Bankruptcy Procedure, 11 U.S.C. Rules 11-18(d) and 209(d). It is clear under the Bankruptcy Act that the receiver acts for the bankrupt or debtor. The receiver, as an officer of the court, has the same rights, privileges, and duties as the debtor. Bankruptcy Act, 11 U.S.C. § 741. Furthermore, the receiver has the benefit of all defenses available to the bankrupt as against third parties. Bankruptcy Act, 11 U.S.C. § 110. The major duty of the receiver appointed under Chapter XI is to take charge of the property and operate the business of the debtor. Rules of Bankruptcy Procedure, 11 U.S.C. Rule 11 — 18(b).

The Bankruptcy Act and Rules promul- . gated thereunder clearly specify that the duties of the receiver include the prosecuting and defending of lawsuits on behalf of the bankrupt. With . regard to suits brought against the debtor, the receiver’s rights are set out in United States Code, Title 11, Section 29(e), which provides in part:

“[T]he receiver or trustee of the bankrupt may, for the benefit of the estate, take any such action or do any such act, required of or permitted to the bankrupt, within a period of sixty days subsequent to the date of adjudication or within such further period as may be permitted by the agreement, or in the proceeding or by applicable Federal or State law, as the case may be.”

Furthermore, United States Code, Title 11, Section 11, defines the powers of the courts of bankruptcy under Chapter XI bankruptcy proceedings; Section 11(a)(3) thereunder provides that the bankruptcy courts may exercise original jurisdiction in appointing receivers to defend or to prosecute pending actions against the bankrupt, stating that the bankruptcy court may:

“[Authorize such receiver, upon his application, to prosecute or defend any pending suit or proceeding by or against a bankrupt or to commence and prosecute any suit or proceeding in behalf of the estate, before any judicial, legislative, or administrative tribunal in any jurisdiction, until the petition is dismissed or the trustee is qualified: . .

Clearly, under the Bankruptcy Act a receiver in bankruptcy succeeds to all the rights and interests of the bankrupt, including any interests in or defenses to pending lawsuits. Therefore, this court holds that a receiver in bankruptcy is the legal representative of the bankrupt. As the legal representative, the receiver has standing to pursue a writ of error appeal to the court of civil appeals where all other requisites for proceeding with such an appeal have been met.

In the instant case Riley did not participate in the trial court proceedings; therefore, a default judgment was rendered against him. Under Articles 2249, 2249a, and 2255, Texas Revised Civil Statutes Annotated, and the case law thereunder, Riley or his legal representative had the right to seek a writ of error appeal for revision or correction of judgment within six months after the default judgment was rendered. Herein, Hubbard was appointed as a Chapter XI receiver for Riley, doing business as Webb’s City Drug. Therefore, Hubbard became Riley’s legal representative. As Riley’s legal representative, Hubbard had the standing to seek correction and revision of the trial court judgment by filing his petition for writ of error in the court of civil appeals within six months after the rendition of the default judgment. Accordingly, the court of civil appeals erred in holding that Hubbard did not have standing to prosecute the appeal.

Lagow asserts that even if Hubbard has standing to appeal, he has failed to comply with the procedures set out in the Bankruptcy Act, United States Code, Title 11, Section 11(a)(3), which would allow him to prosecute or defend a cause of action on behalf of the debtor. Section 11(a)(3) provides that the bankruptcy court shall:

“[Ajuthorize such receiver, upon his application, to prosecute or defend any pending suit or proceeding by or against a bankrupt . . . .” [Emphasis added.]

Specifically, Lagow urges that under Section 11(a)(3) the receiver must make application to the bankruptcy court and receive approval prior to his intervention into the bankrupt’s cause of action. It is undisputed that Hubbard did not apply to the bankruptcy court for authorization to prosecute the appeal of the default judgment against Riley. However, Hubbard asserts that Rule 610 of the Rules of Bankruptcy Procedure, United States Code, Title 11, no longer requires the receiver to seek court approval prior to intervening in suits involving the debtor. Rule 610 provides:

“The trustee or receiver may, with or without court approval, prosecute or enter his appearance and defend any pending action or proceeding by or against the bankrupt, or commence and prosecute any action or proceeding in behalf of the estate, before any tribunal.”

Rule 610 is specifically made applicable to Chapter XI proceedings by Rule 11-57 of the Rules of Bankruptcy Procedure, United States Code, Title 11. Hubbard asserts that the provisions of Rule 610 supersede the provisions of United States Code, Title 11, Section 11(a)(3), where such provisions conflict.

The Rules of Bankruptcy Procedure are promulgated pursuant to United States Code, Title 28, Section 2075, which states:

“The Supreme Court shall have the power to prescribe by general rules, the forms of process, writs, pleadings, and motions, and the practice and procedure under the Bankruptcy Act.
“All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.”

As the provisions of Rule 610 conflict with the provisions of Section 11(b), Section 2075 would indicate that Rule 610 supersedes the provisions of Section 11(b). This interpretation is supported by Collier on Bankruptcy, Volume 13, Section 610.05 [1-2], which states specifically that:

“Rule 610 dispenses with the requirement of court approval for the prosecution or defense of any pending action or cause of action in favor of the estate.”

Accordingly, Hubbard, as a Chapter XI receiver, was not required to obtain bankruptcy court approval as a prerequisite to prosecution of the writ of error appeal on behalf of the bankrupt, Jack Riley, doing business as Webb’s City Drug.

We hold that Hubbard, as a Chapter XI receiver appointed by the bankruptcy court, was the legal representative of Jack Riley, doing business as Webb’s City Drug; that as the legal representative of Riley, Hubbard had standing to prosecute the writ of error appeal seeking revisions and corrections in the default judgment rendered by the trial court; and that Hubbard was not required to obtain bankruptcy court approval as a prerequisite to prosecution of the appeal on behalf of the bankrupt.

Accordingly, the judgment of the court of civil appeals is reversed and the cause of action is remanded to the court of civil appeals for consideration of the appeal upon its merits.


author: STEAKLEY, Justice.

text:
    Bob BULLOCK, Comptroller of Public Accounts, et al., Petitioners, v. LONE STAR GAS COMPANY, Respondent.
    No. B-7311.
    Supreme Court of Texas.
    June 7, 1978.
    Rehearing Denied July 12, 1978.

      John L. Hill, Atty. Gen., Martha E. Smiley and Myra A. McDaniel, Asst. Attys. Gen., Austin, for petitioners.
    Clark, Thomas, Winters & Shapiro, Michael L. Cook and Monty G. Humble, Austin, for respondent.
   STEAKLEY, Justice.

Lone Star Gas Company instituted this suit to obtain a refund of state and local sales and use taxes paid on pipe imported from Europe and laid in a Lone Star Gas pipeline used by Lone Star in the intrastate sale and distribution of gas in Texas. The trial court, after a non-jury trial, rendered judgment for Lone Star and ordered a refund of the taxes with interest. On appeal by the State, the Court of Civil Appeals affirmed the judgment. 558 S.W.2d 566. We reverse those judgments and render judgment that Lone Star take nothing in its suit.

In early 1972, Lone Star embarked upon the construction of a 400 mile pipeline from Coyonosa in Pecos County, Texas, to Cedar Hill in Dallas County, Texas. The pipeline was designated Line X and was designed to bring natural gas from the Delaware Basin production field to the Dallas area. It was the purpose of Lone Star to complete at least a portion of the line during 1972 in order to reduce its federal tax liability. Lone Star also desired to avail itself of the then prevailing lower prices available on foreign steel products. The company struck a balance between its two goals by purchasing approximately one-half of the necessary pipe from domestic steel companies from whom prompt delivery could be expected, with the remainder to be purchased from less accessible but more economically attractive foreign manufacturers. The management personnel at Lone Star were unskilled in international transactions and it was determined that the company would seek quotations from! brokers and suppliers of foreign steel products.

The Crispin Company supplied a quotation under which it would obtain pipe manufactured to Lone Star’s unique specifications from European manufacturers and would deliver it to Lone Star in Houston, Texas. Crispin supplemented this proposal with another in which it would assume the additional responsibility of coating the pipe with anti-corrosive agents and transporting it to the Lone Star job sites. In time, on June 9, 1972, a contract between Lone Star and Crispin was executed, titled a “Sales Contract for High-Test Line Pipe And Transportation Agreement.” The contract differed substantially from the proposals initially submitted by Crispin.

Under the terms of the contract, Crispin was the seller of the pipe and Lone Star the buyer. The contract specifically called for title to the pipe to pass from Crispin to Lone Star at the mills in Europe. Separate provisions called for Crispin to be responsible for transporting the pipe from the mills in France and Italy to a debarkation port in Europe; for shipping the pipe from Europe to Houston; for unloading the ships and storing the pipe in a Houston dockyard storage area; and for transporting the pipe from the storage area to a commercial pipe treatment facility. Separate consideration was stated in the contract for the purchase price of the pipe and for the transportation charges. These were to be paid by Lone Star after delivery of the pipe in Houston. Crispin assumed the risks of loss during transportation and agreed to hold Lone Star harmless for any casualties during transit. Lone Star retained the right to inspect the pipe at any phase of manufacturing and shipment, and to reject defective or damaged portions. Lone Star also retained the right to cancel the contract if and when the delivery schedule for the pipe was not met, subject to its ability to obtain the pipe from another source. for earlier delivery.

With only minor deviations, the purchase and transportation of the pipe was completed pursuant to the terms of the contract. Upon arrival at Houston, the various shiploads of pipe were offloaded and stored at the Ramsey Storage Yard at the port. The amount of time a particular shipload of pipe remained at the storage yard varied. Some pipe remained in storage for no more than six days, while other pipe remained for more than sixty days. Most of the pipe was moved from storage to the Surfcote Coating Corporation plant in Houston, where it was given anti-corrosion treatment before being moved to the job sites in West Texas. A small portion of the pipe was transferred directly from storage to the job sites and was coated there. Line X was completed in June, 1973, and in September, 1973, the Railroad Commission issued Lone Star a permit to operate the pipeline. Lone Star, without protest, paid state use taxes on the pipe in the amount of $670,886.29. The Comptroller later conducted an audit of the company and assessed a local use tax of $138,216.23. Lone Star paid the local tax under protest and filed a claim for refund of both the state and local taxes. The Comptroller denied the claim for refund and Lone Star brought this action.

The applicable statutory provisions, Article 20.01, et seq., are, with italics added, as follows:

Art. 20.01 Title — Definitions
This Chapter is known and may be cited as the “Limited Sales, Excise and Use Tax Act,” and the following words shall have the following meanings unless a different meaning clearly appears from the context:
(K) Sale.
• (l)(a) “Sale” means and includes any transfer of title or possession, or segregation in contemplation of transfer of title or possession, exchange, barter, lease or rental, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property for a consideration.
(N) Storage. “Storage” includes any keeping or retention in this State for any purpose except sale in the regular course of business or subsequent use solely outside this State of tangible personal property purchased from a retailer.
(O) Storage and Use Exclusion. “Storage” and “Use” do not include the keeping, retaining or exercising of any right or power over tangible personal property for the purpose of subsequently transporting it outside the State for use thereafter solely outside the State, or for the purpose of being processed, fabricated or manufactured into, attached to, or incorporated into, other tangible personal property to be transported outside the State, and thereafter used solely outside the State.
(R) Use. “Use” includes the exercise of any right or power over tangible personal property incident' to the ownership of that tangible personal property except that it does not include the sale of that tangible personal property in the regular course of business or the transfer of tangible personal property as an integral part of a taxable service rendered in the regular course of business. “Use” specifically includes the incorporation of tangible personal property into real estate or into improvements upon real estate without regard to the fact that such real estate and improvements may subsequently be sold as such except as provided in Article 20.01 (T)(2).

Art. 20.02 Imposition of Limited Sales Tax

There is hereby imposed a limited sales • tax at the rate of four per cent (4%) on the receipts from the sale at retail of all taxable items within this State.
Art. 20.03 Imposition and Rate of Use Tax
An excise tax is hereby imposed on the storage, use or other consumption in this State of taxable items purchased, leased or rented from any retailer for storage, use or other consumption in this State, at the same percentage rate as is provided in Article 20.02 of this Title, on the sales price of the taxable item, or in the case of leases or rentals, on said lease or rental prices.
Art. 20.04 Exemptions
(G) Interstate Shipments.
(3) Special Use Tax Exemption. The use tax imposed herein shall not apply to:
(a) The use, in this State, of tangible personal property which is acquired outside this State and which is moved into this State for use as a licensed and certificated carrier of persons or property.
(b) The temporary storage in this State of tangible personal property which is acquired outside this State and which, subsequent to being brought into this State and stored here temporarily, is used solely outside this State or is physically attached to or incorporated into other tangible personal property which is used solely outside this State.
(c) The storage, use or consumption of tangible personal property which is acquired outside this State, the sale, lease or rental or the storage, use or consumption of which tangible personal property would be exempt from the limited sales or use tax were it purchased within this State.
(d) The storage and use, in this State, of tangible personal property acquired outside this State for use as a repair or replacement part for and actually affixed in this State to a self-propelled vehicle which is a licensed and certificated common carrier of persons or property.
(K) Use Tax Inapplicable When Limited Sales Tax Applies or When Use Tax Previously Paid. The storage, use or other consumption in this State of taxable items, the receipts from the sale, lease, rental or use of which are required to be included in the measure of the limited sales tax, or taxable items upon which a use tax has been paid by the taxpayer using said taxable items, is exempted from the use tax imposed by this Chapter.

The Comptroller contends that the pipe transaction in question subjected Lone Star to the imposition of the State and local taxes upon each of these statutory bases: as a Sale of the pipe under Arts. 20.02 and 20.01 (K); as a Use of the pipe under Arts. 20.03 and 20.01 (R); and as a Storage of the pipe under Arts. 20.03 and 20.01 (N). Lone Star contends, on the other hand, that there is not a taxable event in either statutory instance. As we understand, Lone Star does not deny that there was a storage and a use of the pipe in Texas within the terms of Arts. 20.01 (N) and 20.01 (R); its position is that, notwithstanding, the use tax exemption of Art. 20.04 (G)(3)(a) is applicable alike to the use and to the storage of the pipe and exempts Lone Star from liability for a tax on either event. We hold that the Act imposes a separate tax on the use and on the storage of items, and that the Art. 20.04 (G)(3)(a) exemption is inapplicable to the storage tax. This holding renders unnecessary consideration of the question of whether Lone Star is a licensed and certificated carrier of persons or property within the terms of the exemption, as well as whether there was a taxable sale in Texas.

Art. 20.03 imposes a tax on (1) the use of property, (2) the storage of property, and (3) the other consumption of property. These taxes are collectively called the Use Tax. Thus, when the Legislature speaks of the Use Tax, it refers not only to the tax on the use of property but also to the tax on storage and the tax on other consumption. It is clear from this that the exemptions provided in subsections (a) through (d) of Art. 20.04 (G) have definite meaning and are not “nullities” as argued by Lone Star. Subsection (a) exempts the “use” of certain property from the general “Use Tax.” It does not exempt the storage or other consumption of property from the tax imposed on these activities by the “Use Tax.” Likewise, subsection (b) exempts only temporary “storage” from the “Use Tax.” No exemption is provided in this subsection for the use or “other consumption of property.” Significantly, when the Legislature intended to exempt all of the activities taxed by the “Use Tax,” it specifically stated that the (1) use, (2) storage, and (3) other consumption of a certain type of property would be exempt from the “Use Tax.” See Art. 20.04 (G)(3)(c).

The tax on the storage, use or other consumption of property, generically known as the Use Tax, is designed to complement the Sales Tax imposed by Article 20.02 on “the receipts from the sale at retail of all taxable items within this State.” The Sales Tax, by definition, can only reach those transactions which occur in this State. A tax upon the sale of items in another state would constitute an unconstitutional burden on interstate commerce. See, McLeod v. J. E. Dilworth Co., 322 U.S. 327, 64 S.Ct. 1023, 88 L.Ed. 1304 (1944). If the Sales Tax had been enacted without the complementary Use Tax, the burden of contributing to the support of the government in this form of taxation would have fallen upon those consumers who purchased goods in this State. The purpose of the Use Tax, then, is to more evenly distribute the tax burden among all consumers by imposing a tax on the fruits of an interstate purchase as well as on the sale of property in the State. See United Air Lines v. Mahin, 410 U.S. 623, 638, 93 S.Ct. 1186, 35 L.Ed.2d 545 (1973); American Airlines, Inc. v. State Board of Equalization, 216 Cal.App.2d 180, 30 Cal.Rptr. 590 (Dist.Ct.App.1963).

In order to serve this purpose, the Use Tax includes a tax not only on the use of property but also on the storage of property. Most commonly the storage tax is imposed on property that is purchased in another jurisdiction, and is, therefore, not subject to state taxation; and which is thereafter used as part of an interstate commerce activity, also not a proper subject for state taxation. In Southern Pacific Co. v. Gallagher, 306 U.S. 167, 59 S.Ct. 389, 83 L.Ed. 586 (1939), the United States Supreme Court held that the tax on storage could be validly imposed by the State of California on that “taxable moment when the former [goods purchased outside the state] had reached the end of their interstate transportation and had not begun to be consumed in interstate operation.” 306 U.S. at 177, 59 S.Ct. at 393. See also, Pacific Telephone and Telegraph Co. v. Gallagher, 306 U.S. 182, 59 S.Ct. 396, 83 L.Ed. 595 (1939); Northern Natural Gas Co. v. Lauterbach, 251 Iowa 885, 100 N.W.2d 908 (1960); and American Airlines, Inc. v. State Board of Equalization, supra. The same reasoning is applicable here, where the pipe in question had reached the end of its international transportation and had not begun to be consumed in an activity claimed to be exempt from the tax on use.

The question of the liability of Lone Star for local sales and use taxes is controlled by what we have hereinabove held with respect to Art. 20.01, et seq. The Local Sales and Use Tax Act, Art. 1066c, Tex.Rev.Civ.Stat.Ann. (Supp.1978), imposes a tax on the storage of property concurrently with the imposition of the tax under Art. 20.01, et seq. Our holding that Lone Star is liable for the State Use Tax on the storage of the pipe renders Lone Star also liable for the local tax.

Accordingly, the judgments of the courts below are reversed and judgment is here rendered that Lone Star take nothing in its suit.

      . Title 122A, Taxation-General, 20A, Tex.Rev. Civ.Stat.Ann. (1969). Unless otherwise indicated, all statutory references hereafter will be to articles and sections of this Act.


author: BARROW, Justice.

text:
    Frank E. MONTFORT, Petitioner, v. William B. JETER, Respondent.
    No. B-7495.
    Supreme Court of Texas.
    June 7, 1978.
    Rehearing Denied June 7, 1978.
    Law Offices of Harold Lloyd, Inc., Michael L. O’Brien, Houston, for petitioner.
    Ranseler 0. Wyatt, Houston, for respondent.
   BARROW, Justice.

This is an appeal from a judgment rendered on a jury verdict in a legal malpractice suit whereby Frank E. Montfort recovered actual and exemplary damages from William B. Jeter. The court of civil appeals concluded that there was no evidence to support the jury finding of actual damages and, without actual damages, that no recovery could be had for exemplary damages. It reversed the trial court’s judgment, but remanded the cause for a new trial because there was no proper predicate laid for a rendition. 561 S.W.2d 622. We reverse the judgment of the court of civil appeals and remand the cause to that court for further proceedings.

On December 14, 1965, a judgment was signed in Cause No. 612,739, in the 113th Judicial District Court of Harris County in a cause styled Catherine Nickerson, et al. v. Twin Peaks Land & Cattle Company, et al. The judgment provides in part that Houston National Bank recover the sum of $19,-939.51 from Frank E. Montfort, Donald M. Lepere, James K. Scott and Robert W. Richmond, jointly and severally. This judgment recites that it was entered pursuant to an agreement of all parties, and the judgment was purportedly approved in writing by attorney William B. Jeter on behalf of Frank E. Montfort. Montfort, however, did not learn of this judgment against him until 1973 when he received interrogatories in aid of judgment from the judgment creditor. In 1974 he filed this suit for damages against Jeter on the ground that Jeter had wrongfully agreed to the judgment against Montfort.

The jury found: 1. Jeter did agree to the entry of a judgment against Montfort without authority to do so from Montfort; 2. (a) the sum of $40,000 would fairly and reasonably compensate Montfort for his damages by reason of the judgment against him; (b) Montfort should recover “0” damages for his mental anguish and suffering resulting from the occurrence in question; 3. The conduct of Jeter as found in Issue No. 1 was done with malice; and 4. The sum of $15,-000 should be awarded as exemplary damages. Judgment was rendered on this verdict for the sum of $55,000.

The court of civil appeals found that there was evidence to support the jury findings that Jeter agreed to the judgment against Montfort in the Nickerson case without authority from Montfort, and that such action was done with malice. However, it sustained Jeter’s complaint that the trial court erred in entering judgment against Jeter because Montfort had wholly failed to prove any measurable damages. Jeter urged, and the court of civil appeals found, that there was no evidence of actual damages other than for mental anguish, but since no recovery was allowed by the jury for mental anguish, the court concluded that there was no evidence to support the jury finding of actual damages. It was further held that, in the absence of actual damages, exemplary damages could not be recovered. The court of civil appeals did not consider any of Jeter’s other points.

The basic question presented is whether we should apply the “prepayment rule” or the “judgment rule” in determining whether or not Montfort sustained any actual damage by the judgment rendered against him. Admittedly, Montfort has not paid any part of the judgment, as required under the pre-payment rule. See Universal Automobile Ins. Co. v. Culberson, 126 Tex. 282, 86 S.W.2d 727 (1935). Nor has execution been attempted on any of his property. Nevertheless, the uncontradicted evidence at the trial is that the unpaid judgment was still “hanging over his head."

This question was considered by us in Hernandez v. Great American Ins. Co. of N. Y., 464 S.W.2d 91 (Tex. 1971). The Court, after full consideration of the respective merits of the prepayment rule and the judgment rule, adopted the judgment rule insofar as a tort action is concerned. The Court observed:

The judgment injures Hernandez while it remains unpaid. His credit is affected. A lien attaches to his land. His non-exempt property is constantly subject to sudden execution and forced sale. He is entitled to relief from harm if it is the fault of the tortfeasor.

This rule is applicable here in that Mont-fort seeks to recover damages for the tort-feasance of Jeter which resulted in the judgment against Montfort. This judgment, together with accrued interest, totaled $40,000 at the time of trial of Mont-fort’s tort action against Jeter. Under the judgment rule adopted in Hernandez, the existing judgment against Montfort is some evidence of actual damages. Therefore, the court of civil appeals erred in holding that there was no evidence to support the jury finding of actual damages.

Although Jeter asserted twenty points of error in the court of civil appeals, the court found it only necessary to consider the no evidence point on damages. Jeter did not bring forward by application for writ of error those points of error which were not considered below, but which might have entitled the court of civil appeals to reverse the trial court judgment and render a take-nothing judgment. Accordingly, we may not consider those points here. Nevertheless, we must consider the briefs filed in the court of civil appeals for the purpose of determining whether, by sustaining other assignments of error therein, we can affirm the judgment of remand which was rendered by the court of civil appeals. Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977); McKelvy v. Barber, 381 S.W.2d 59 (Tex.1964); Hatched and Calvert, Some Problems of Supreme Court Review, 6 St. Mary’s L.J. 303, 305-318 (1974).

Jeter asserted a number of points in the court of civil appeals, which, if sustained, would require a reversal of the judgment and a remand for a new trial. Included are points contending that the sums found by the jury as to both actual and exemplary damages are excessive. Inasmuch as we must remand the case to the court of civil appeals for a determination of these fact questions of excessiveness, Southwestern Investment Company v. Neeley, 452 S.W.2d 705 (Tex.1970); Wilson v. Freeman, 108 Tex. 121, 185 S.W. 993 (1916), we deem it expedient for that court to determine the other remand points which are properly raised by Jeter. Custom Leasing, Inc. v. Texas Bank & Tr. Co. of Dallas, 491 S.W.2d 869 (Tex.1973).

The judgment of the court of civil appeals is reversed and the cause is remanded to the court of civil appeals for further proceedings not inconsistent with this opinion.

      . Montfort testified unequivocally that he was never served in the Nickerson case and knew nothing about it until 1973; that a note purportedly signed by him was a forgery; and that he had not authorized Jeter or anyone else even to represent him in the Nickerson case, much less agree to a judgment against him.

      . Jeter alleged in his motion for new trial that he had learned since the trial that the judgment had been paid off by another of the judgment debtors. There is no evidence in the record to support this allegation or to refute Montfort’s testimony that the judgment is still “hanging over my head.”


author: PHILLIPS, Judge.

text:
    Lee Clell PLASTER, Appellant, v. The STATE of Texas, Appellee.
    No. 56177.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 7, 1978.
    Rehearing en banc Denied July 19, 1978.

      Donald W. Rogers, Jr. and Robert R. Scott, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Susan W. Crump and Jack D. Bodiford, Asst. Dist. Attys., Houston, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for aggravated robbery. V.T.C.A., Penal Code, Section 29.03. Punishment was assessed by the jury at 60 years’ imprisonment. In a per curiam opinion delivered October 12, 1977, this Court abated this appeal in order for appellant’s court-appointed attorney to file an appellate brief. Court-appointed counsel filed an appellate brief with the trial court on December 29, 1977, and the appeal is now properly before us for consideration. The appeal is reinstated.

The evidence adduced at trial revealed that on April 9, 1976, the appellant entered the San Jacinto Savings and Loan and robbed the manager, Kenneth Dudley,' of $1700.00 in U.S. currency. The sufficiency of the evidence is not challenged.

In his sole ground of error, appellant complains of the admission of a prior conviction at the punishment 3tage of the trial. The State sought to introduce into evidence purported copies of official records concerning a prior conviction for interstate transportation of a stolen vehicle out of the United States District Court for the Eastern District of South Carolina. The appellant objected to the introduction of this evidence on the grounds the documents were not properly certified, which objection was overruled. After proper fingerprint identification, the records were introduced into evidence. The document reflects the following certification:

“By virtue of the authority vested in me by the Administrator of General Services, I certify in his behalf, under the seal of the United States General Services Administration, that the attached reproduction^) is a true and correct copy of documents in his custody.”

This certification was signed by Royce B. Carver, the Reference Service Branch Chief of the Federal Archives and Records Center in Forth Worth. The appellant contends that this certificate does not state that the legal custody of records of federal courts is vested in the General Services Administration nor that Royce B. Carver has the legal custody of such documents.

Article 3731a(4), V.A.C.S., sets forth the requirements of authentication of official written records and provides, in pertinent part:

“Such writings or electronic records may be evidenced by an official publication thereof or by a copy or electronic duplication attested by the officer having the legal custody of the record, or by his deputy. Except in the case of a copy of an official writing or official electronic recording from a public office of this State or a subdivision thereof, the attestation shall be accompanied with a certificate that the attesting officer has the legal custody of such writing. . All such attested and certified instruments and the contents of the certificate and the title of the person making same, shall be evidence of the matters, statements, representations and title contained therein.”

In support of his contention, appellant cites and relies upon Garner v. State, Tex.Cr. App., 552 S.W.2d 809. In Garner, the State introduced into evidence one prior Oklahoma conviction and a prior Texas conviction, both alleged for enhancement purposes. We reversed the case because there was no showing the Oklahoma offense occurred after the finality of the Texas conviction alleged for enhancement. The State did introduce a copy of the information from the Oklahoma conviction; however, it could not be considered by this Court. The information was certified as a true, correct, and complete copy by the court clerk, but there was no certification the court clerk had the legal custody of the writing. On rehearing, Judge Odom emphasized that the wording of Article 3731a(4) is mandatory. See also Speights v. State, Tex.Cr.App., 499 S.W.2d 119.

At the outset, we note that the certification in the instant case goes further than the certification condemned in Garner. In the instant case, it was certified on behalf of the administrator of General Services that the records were “a true and correct copy of documents in his custody.” While this wording in the certification attests that the Administrator has custody of the documents, it does not indicate the attesting official has “legal” custody of the documents. In this regard, it becomes important that the official attesting to the authenticity of the documents is a federal official as opposed to an official of another state.

This Court can take judicial notice of the laws of the United States, Lucas v. State, 129 Tex.Cr.R. 213, 86 S.W.2d 638; Arriola v. State, 108 Tex.Cr.R. 270, 1 S.W.2d 287; Sims v. State, 64 Tex.Cr.R. 435, 142 S.W. 572; Bink v. State, 48 Tex. Cr.R. 598, 89 S.W. 1075; but, we cannot take judicial notice of the laws of another state. See Wickware v. Session, 538 S.W.2d 466 (Tex.Civ.App. — Tyler, 1976, no writ); Durr v. Newman, 537 S.W.2d 323 (Tex.Civ. App. — El Paso, 1976, ref’d n. r. e.); Black v. Kidder, Peabody & Company, Inc., 559 S.W.2d 669 (Tex.Civ.App. — Houston, 1977, no writ). Consequently, we judicially know that the Administrator of General Services can obtain such documents, 44 U.S.C.A. § 3103, and that such records are in his legal care, custody, and control. 44 U.S. C.A. § 2104. Further, the Administrator is empowered to establish Federal Archives and Record Centers, 44 U.S.C.A. § 2106, and has established such a center in Fort Worth. 41 CFR 105-61.5101-7(g). The head of such center may authenticate documents on the Administrator’s behalf, 41 CFR 105-60.-603, under the seal of the National Archives. 44 U.S.C.A. § 2112.

Therefore, we hold that the certificate provided in the instant case on behalf of the Administrator of General Services sufficiently demonstrated that the documents were in the attesting officer’s legal custody and satisfied the requirements of Article 3731a(4). Appellant’s contention is overruled.

The judgment is affirmed.

      . In civil cases the rule is different if the provisions of Rule 184a of the Texas Rules of Civil Procedure are followed.


author: W. C. DAVIS, Judge.

text:
    Harold Lee LITTLE, Appellant, v. The STATE of Texas, Appellee.
    No. 54286.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 14, 1978.
    Appellant’s Motion for Rehearing En Banc Denied July 19, 1978.

      Robert A. Canónico, Waco, for appellant.
    Felipe Reyna, Dist. Atty. and Lynn Malone, Asst. Dist. Atty., Waco, for the State.
    Before DOUGLAS, PHILLIPS and W. C. Davis, JJ.
   OPINION

W. C. DAVIS, Judge.

A jury in 54th District Court convicted appellant of burglary of a building. . V.T. C.A., Penal Code, Sec. 30.02(a)(1). Punishment was enhanced with two prior felony convictions and the court sentenced him to life imprisonment in the Texas Department of Corrections. V.T.C.A., Penal Code, Sec. 12.42(d). We affirm.

Appellant raises six grounds ■ of error. The sufficiency of the evidence is challenged in grounds of error five and six.

Two police officers found the appellant inside a ramshackle house, standing over a bag containing various items of plumbing which, apparently, had been recently removed from the house’s plumbing fixtures. Some of the items were still wet. A pipe wrench lay close at hand. Appellant testified that although he entered the premises he denied having any intent to steal. He admitted three prior felony convictions, two for burglary and another for breaking and entering a motor vehicle.

When the sufficiency of the evidence is challenged, we are required to review the evidence in a light most favorable to the verdict. Rogers v. State, 550 S.W.2d 78 (Tex.Cr.App.1977). The evidence is sufficient.

Grounds of error five and six are overruled.

In his first ground of error, the appellant contends that it was error for the trial court to refuse an instruction on circumstantial evidence, “as there was no direct evidence of his intent to commit theft.” An instruction as to circumstantial evidence is not required where the main fact is proved by direct testimony and only the question of the defendant’s intent is to be inferred from the circumstances. Belcher v. State, 504 S.W.2d 858 (Tex.Cr.App.1974); Davis v. State, 516 S.W.2d 157 (Tex.Cr.App.1974).

Ground of error one is overruled.

In ground of error two, the appellant complains of his arraignment in the presence of the jury, despite a pretrial motion and timely trial objection. The appellant had been previously arraigned at a pretrial hearing.

We have repeatedly held that arraignment before a jury is not to be condoned, and that trial judges should be careful to avoid such practices. Minafee v. State, 482 S.W.2d 273 (Tex.Cr.App.1972). Since the court in the pretrial arraignment had already fixed appellant’s identity and heard his plea, it was not called upon to give admonishments and instructions on the law to the appellant before receiving his plea in the jury’s presence and the court committed error in so doing. Collins v. State, 548 S.W.2d 368 (Tex.Cr.App.1976), cert. denied 430 U.S. 959, 97 S.Ct. 1611, 51 L.Ed.2d 811 (1977). However, because of the court’s instructions prior to voir dire examination and included in its charge at the guilt-innocence stage that the indictment was no evidence of guilt and should not be considered as anything but a mere accusation, no harm is shown.

Ground of error two is overruled.

In the third ground of error, the appellant contends that the State argued improperly. He urges six instances of error. Such ground is clearly multifarious and as such does not comply with Art. 40.09(9), Vernon’s Ann.C.C.P.; however, in the interest of justice, we have reviewed his contentions carefully and choose to discuss but one, set out below:

“PROSECUTOR (MR. SELLERS): He wants you to think that anytime he is guilty, he will plead guilty, and because he pled not guilty, that he is not guilty. They want you to think that. And Mr. Canónico stood up here and told you that was why he was pleading not guilty, but that’s not why he was pleading not guilty. He doesn’t have to have a reason to plead not guilty. That’s his constitutional right and if he had of signed a confession to the offense, he could still come in and plead not guilty. That happens. There is a good reason why he is not pleading guilty, and unfortunately, I am not permitted to tell you what it is.” (Emphasis added)

Appellant’s objection was sustained and an instruction to disregard given. His motion for mistrial was denied.

Previously, appellant’s counsel had argued as follows:

“Now, Mr. Little chose to come to the jury to determine his guilt or innocence. Now, you have heard that he was convicted of three prior felonies. You have already heard that he pled guilty to those three felonies. He could have pled guilty to this one, but he has maintained his innocence to me and . . .” (Objection)

And, later:

“. . . You have heard the evidence. All of you heard Mr. Little. I promised you that there would be some things said about him on voir dire. There were three felony convictions, but remember, this man had a chance to lie to you. He had a chance to plead guilty to this charge and receive his sentence, but he chose to stand up before the jury and say ‘I’m not guilty of this offense. I didn’t do it.’ Take that into consideration.”

It is improper for the prosecuting attorney to imply to the jury that there is pertinent evidence of which he is aware that is not in the record. Thus, the argument that the prosecution had information not available to the jury was clearly error and not invited by defense counsel’s argument. Curlin v. State, 500 S.W.2d 141 (Tex.Cr.App.1973). Such error, however, was harmless in light of the overwhelming evidence of defendant’s guilt and the trial court’s prompt instruction to disregard. Taylor v. State, 550 S.W.2d 695 (Tex.Cr.App.1977). Cf. Fowler v. State, 500 S.W.2d 643 (Tex.Cr.App.1973).

Ground of error three is overruled.

In ground of error four, appellant argues that there was a fatal variance in the indictment allegations and the proof adduced at trial. In particular, he contends that “the indictment alleges ownership of the house allegedly burglarized to be in one Frank Vivian and the proof on the trial of the case shows the ownership to be in one Mrs. Huddleston.”

Vivian testified that the house belonged to his mother-in-law, who was in a rest home, and that he (had) “charge of it and power of attorney. It belongs to my mother-in-law, and I have guardianship over it.” Ownership was adequately shown. V.T. C.A., Penal Code, Section 1.07(24). There was no motion to quash the indictment on this ground. The indictment is not fundamentally defective. Art. 27.08, Vernon’s Ann.C.C.P.; American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974); Hears v. State, 557 S.W.2d 309 (Tex.Cr.App.1977).

Ground of error four is overruled.

The judgment is affirmed.


author: PER CURIAM.

text:
    Susan AVERITT, Petitioner, v. The Honorable J. P. “Jimmy” GUTIERREZ, Justice of the Peace, Precinct 1, Place 1, Bexar County, Texas and the Honorable Ted Butler, Judge of the 226th Judicial District Court of Bexar County, Texas, Respondents.
    No. 58872.
    Court of Criminal Appeals of Texas, En Banc.
    June 14, 1978.

      Robert A. Valdez, San Antonio (court appointed), for petitioner.
   ORDER

PER CURIAM.

On this day came on to be considered by the Court of Criminal Appeals the Application for Writ of Mandamus filed herein by petitioner, Susan Averitt. Petitioner requests this Court to issue a writ of mandamus directing the Honorable J. P. “Jimmy” Gutierrez, Justice of the Peace, Precinct 1, Place 1, Bexar County and/or the Honorable Ted Butler, Judge of the 226th Judicial District Court of Bexar County to issue certain subpoenas for witnesses to appear at petitioner’s examining trial in regard to a charge for the offense of capital murder which has been lodged against her.

Petitioner states that she has attempted to subpoena at least seven witnesses to appear at said examining trial which has been scheduled in the Justice Court, Precinct 1, Place 1, Bexar County, Texas, before the said J. P. “Jimmy” Gutierrez, on Friday, June 16, 1978 at 10:00 A.M. However, Judge Gutierrez has refused to issue subpoenas for more than three witnesses, “. . . citing as his reasons for this refusal an existing policy which only allows a Defendant a maximum of three witnesses per examining trial.” Petitioner further states that the Honorable Ted Butler has ruled that the District Court has no jurisdiction to compel said Justice of the Peace to issue the requested subpoenas.

Without passing on the validity of Judge Butler’s ruling concerning the jurisdiction of the District Court, suffice it to say that this Court will not issue a writ of mandamus compelling Judge Butler to issue subpoenas for witnesses to an examining trial in the Justice Court.

As to Judge Gutierrez, the issuance of subpoenas for witnesses after proper application therefor has been filed with him in accordance with Article 24.03, V.A.C.C.P., is a purely ministerial act. It is not a matter of discretion. There is no legal limitation on the number of witnesses that can be properly subpoenaed by the state or an accused to appear before an examining court. Article 24.01, V.A.C.C.P.

Therefore, the Honorable J. P. “Jimmy” Gutierrez, Justice of the Peace, Precinct 1, Place 1, Bexar County, Texas is hereby ORDERED to forthwith issue any and all subpoenas for which application shall be made or has been made by the petitioner, Susan Averitt, or her attorney, in accordance with the provisions of Article 24.03, V.A.C.C.P., for witnesses to appear at said examining trial, without any limitations on the number of such witnesses.

And the Clerk of this Court shall forthwith issue a peremptory writ of mandamus commanding and requiring said respondent, J. P. “Jimmy” Gutierrez, so to do, all in accordance with this Order.

IT IS SO ORDERED on this 13th day of June, 1978.