author: TODD, Judge.

text:
    Sammy CHAMBERS, Plaintiff-Appellant, v. Mac HOLLAND, Defendant-Appellee.
    Court of Appeals of Tennessee, Middle Section.
    Feb. 28, 1975.

      J.M. Clement, Jr., Dickson, for plaintiff-appellant.
    Don R. Binkley, Gracey, Maddin, Cowan & Bird, Nashville, for defendant-appellee.
   OPINION

TODD, Judge.

The plaintiff, Sammy Chambers, has appealed from a jury verdict and judgment dismissing his suit against the defendant, Mac Holland, for personal injuries sustained in an automobile mishap.

The appellee has moved to dismiss the appeal on three grounds.

First, appellee insists that the appeal bond was not timely filed.

On August 28, 1973, the Trial Judge entered an order overruling plaintiff’s motion for a new trial, granting an appeal and allowing 30 days for perfecting the appeal.

On September 26, 1973, the Trial Judge entered an order providing:

“It is hereby ordered, that plaintiff be allowed sixty additional days to file his bill of exceptions and perfect his appeal.”

On November 10, 1973, plaintiff filed his appeal bond.

§ 27-312 T.C.A. provides in part as follows:

“27-312. Time for filing appeal and bond. — When an appeal or appeal in the nature of a writ of error is prayed from a judgment or decree of an inferior court to the Court of Appeals or Supreme Court, the appeal shall be prayed and appeal bond shall be executed or the pauper oath taken within thirty (30) days from the judgment or decree of the court, but for satisfactory reasons shown by affidavit or otherwise, and upon application made within the thirty (30) days, the court may extend the time to give bond or take the oath, but in no case more than thirty (30) days additional.”

In Paris v. Browning, 55 Tenn.App. 92, 396 S.W.2d 367 (1965) it was held that appellate courts are without authority to permit the filing of a bond after the expiration of the time allowed by the foregoing code section.

In Wright v. Dorman, 155 Tenn. 189, 291 S.W. 1064 (1927) and England v. Young, 155 Tenn. 506, 296 S.W. 14 (1927) it was held that the statutory time limit is mandatory.

Even though the order of the Trial Judge, supra, undertook to grant an extension of 60 days for perfecting appeal, the order was ineffective to extend the time for appeal more than an additional 30 days. Thus, at most, the plaintiff was allowed for the filing of his appeal bond a total of 60 days from August 28, 1973 which expired prior to the filing of the bond on November 10, 1973. Chattanooga Coca Cola Co. v. Disbrow, 60 Tenn.App. 381, 447 S.W.2d 107 (1969).

The motion to dismiss the appeal must therefore be sustained. This, however, is not necessarily determinative of plaintiff’s right to appellate review.

In Chumbley v. Duck River Electric Membership Corp., 203 Tenn. 243, 310 S.W.2d 453 (1957), there was no prayer for or order granting appeal, but an appeal bond was in the record. The Supreme Court considered the matter as upon writ of error, citing Gibson’s Suits in Chancery, Fifth Edition, § 1344.

In Ward v. North American Rayon Corp., 211 Tenn. 535, 366 S.W.2d 134 (1962) the Supreme Court held that where an appeal or appeal in the nature of writ of error has not been perfected because of failure to file appeal bond in due time, writ of error lies as a matter of right.

In City of Paris v. Browning, 55 Tenn.App. 92, 396 S.W.2d 367 (1965) this Court dismissed an appeal for failure to file any appeal bond or pauper’s oath, but declined to affirm the judgment of the Trial Court because the time for proceeding by writ of error had not expired.

In Sanders v. Loyd, 51 Tenn.App. 49, 364 S.W.2d 369 (1960), this Court found that the appeal bond had not been timely filed, but said:

“. . . under [John A.] Chumbley v. Duck River Electric Membership Corp., 203 Tenn. 243, 310 S.W.2d 453, a certified copy of the record being on file in this court and the same containing a proper pauper’s oath it is incumbent on us to treat the case as before us on writ of error. T.C.A. §§ 27-601, 27-306, 27-610.” 51 Tenn.App. p. 51, 364 S.W.2d p. 370.

On the basis of the preceding authorities, this cause will be retained and disposed of in this Court as upon writ of error.

Defendant also moves to dismiss the appeal because the bill of exceptions was not timely filed. It was filed on November 21, 1973.

The extension order, supra, allowed an extension of 60 days for filing the bill of exceptions. In this regard, the action of the Trial Judge was within his statutory power, and the time for filing the bill of exceptions was thereby extended to 90 days. If measured from August 28, 1973, this period would include November 21, 1973, the date of filing the bill of exceptions.

Appellee insists that the initial, statutory time for filing bill of exceptions (and for extension of time by the Trial Court) is not computed from the date of the order overruling the motion for a new trial, but rather from the date of final judgment, excluding the time when motion for new trial was pending. § 27-110 and § 27-111 T.C.A. provide in pertinent part as follows:

“27 — 110. Certificate as leave to file bill — Authentication—Death or inability of judge or chancellor. — The certificate of approval of the parties or the certificate of the court stenographer upon said bill of exceptions or wayside bill of exceptions shall be sufficient leave to file same, when filed within thirty (30) days after the order or action which occasioned its filing, or an extension thereof.
“27-111. Time for filing bill. — In all cases tried in the circuit, criminal, county, chancery, or any other court of record, either party may file a bill of exceptions or wayside bill of exceptions either within or after the expiration of the term without any special order of court, provided the bill of exceptions or wayside bill of exceptions is filed within thirty (30) days from the entry of the order or action of the court which occasioned the filing of said bills of exceptions. The judge or chancellor may within the aforesaid thirty (30) day period, either within or after the expiration of the term, extend the time for filing said bills of exceptions for not exceeding an additional sixty (60) days. The maximum period of ninety (90) days shall be computed, in case of a bill of exceptions, from the date of final judgment, and in the case of a wayside bill of exceptions, from the date of the action which occasioned the taking of such wayside bill of exceptions. The period of pendency of any motion or other matter, having the effect of suspending such final judgment or action, shall be excluded in the computation of the period. There shall also be excluded in the computation of the period the thirtieth day and the ninetieth day of such period should such either or both fall upon a Sunday.”

In this cause, the judgment was entered on April 23; and the motion for new trial was filed on May 18, twenty-five days later. Therefore, under appellee’s insistence, only five of the statutory thirty days remained at the time of the filing of the motion for new trial, and the same five days remained at the time of overruling of the motion for new trial on August 28, 1973. Thus, under appellee’s insistence the last day for filing bill of exceptions or obtaining an extension was September 2, 1973; and 60 days thereafter, to November 1, 1973, was the maximum extension which might be granted.

Prior to the 1950 Supplement to the Code the time for filing a bill of exceptions was measured from “the date of the court’s action upon said motion (for new trial).” § 8822, Code of 1932. Since the 1950 Supplement, (§ 8820 thereof), the wording has been, “from the entry of the order or action of the court which occasioned the filing of said bills of exceptions” or “from the date of final judgment.”

Under the former (pre-1950) law, the time was unquestionably measured from the day of overruling the motion for a new trial. Chattanooga-Dayton Bus Line v. Burney, 160 Tenn. 294, 23 S.W.2d 669 (1930).

In Waller v. Skelton, 31 Tenn.App. 103, 212 S.W.2d 690 (1948) this Court said:

“. . . It also appears that defendants’ motion for a new trial was filed November 6, 1946, within 30 days from the entry of the judgment on October 30, and within the trial term. So this motion was seasonably filed.
“Being seasonably filed, this motion suspended the judgment and continued the trial judge’s jurisdiction until he could dispose of the motion. He could do this at a special term (Code secs. 9935, 9936), at an adjourned term (secs. 9937, 9945.5, Ch. 7, Acts 1943), or at a subsequent regular term (sec. 159), and could then grant an appeal in error and allow time for perfecting it and for settling a bill of exceptions, for these purposes the judgment being regarded as entered at the time of overruling of the motion for a new trial.” (Citing Authorities)

Thus, even under the former (pre-1950) wording of the statute, the order overruling the motion for new trial was regarded as the final judgment.

In Norris v. Richards, 45 Tenn.App. 100, 320 S.W.2d 730 (1958) this Court said:

“[3] However, even if we could consider the stipulation and decree, it would still fail to cure the defect, because the order purports to grant an extension of 20 days in which to file and have approved a bill of exceptions, which order, on its face, was entered more than 30 days after the motions for new trial were overruled in these cases.” 45 Tenn.App. p. 107, 320 S.W.2d p. 733). (Emphasis supplied)

Thus, after tHe 1950 change in wording, this Court recognized that the order overruling the motion for new trial was the “order or action of the court which occasioned the filing of said bill of exceptions.”

In Railroad v. Ray, 124 Tenn. 16, 28, 134 S.W. 858, 860 (1910) the Supreme Court said:

“When a new trial is refused by the trial court, then only can an appeal be prosecuted from the judgment. For such purposes of appeal the judgment, although previously entered, really dates as of the order of the court overruling the motion for new trial.” 124 Tenn. p. 28, 134 S.W. p. 860.

To the same effect is Mitchell v. Porter, 26 Tenn.App. 498, 511, 173 S.W.2d 443 (1942).

The statute is amenable to the construction urged by appellee, but it has not been so construed in any reported opinion that has been found. The above cited authorities would indicate the contrary, that is, that the order overruling the motion for new trial is the final judgment which occasions the filing of a bill of exceptions, and begins the running of the statutory time for filing bill of exceptions.

It is deemed more just to follow this latter interpretation than the stricter one advocated by appellee. Therefore it would not be in order to strike the bill of exceptions or to dismiss the appeal upon the ground just stated.

Appellee’s motion to dismiss the appeal is respectfully overruled.

Appellant insists that all of the evidence shows the defendant to be guilty of negligence proximately causing the injury of plaintiff and that there is no evidence of contributory negligence on the part of plaintiff.

To a considerable degree, the facts are undisputed.

On August 1, 1971, plaintiff took his pregnant wife and two children to the “Irish Picnic.” They returned home about 10 PM and, shortly thereafter, plaintiff left home and went to the “Clover Club.” While there, he drank one beer by his own admission (more, from other evidence) and danced with Janette Craft who was present at the club with defendant. When the club closed at midnight, plaintiff left but later, a short distance away, entered defendant’s automobile after requesting a ride to the scene of a wreck. Shortly thereafter, defendant’s vehicle left the road at a curve and plaintiff was injured.

Plaintiff first insists that there was no evidence of contributory negligence.

The witness, Jan Craft, testified that, when she danced with plaintiff at the Clover Club, plaintiff stated to her that he was “high as a kite,” and that “he seemed to me like he had at least two or three beers before I danced with him, and he had one at the table with us before that.” The same witness testified that, when the plaintiff later entered defendant’s vehicle, he (plaintiff) walked unsteadily, had a can of beer in his hand and was unable to light a cigarette because he couldn’t get the match and cigarette together.

The foregoing contradicts the testimony of plaintiff on the same subject. If believed, it furnishes a circumstance of contributory negligence by showing plaintiff to be unable to take proper precautions for his own safety because of his own voluntary conduct. The same testimony, if believed, serves to impeach the testimony of plaintiff generally under the doctrine of “falsus in uno, falsus in omnibus.” Jeffrey Mfg. Co. v. Underwood, 221 Tenn. 275, 426 S.W.2d 189 (1967), Buck v. West, 58 Tenn.App. 539, 434 S.W.2d 616 (1968).

Moreover, plaintiff testified that defendant was traveling at a high rate of speed but that he (plaintiff) made no protest. Plaintiff claimed that he had no time to protest, but the jury was justified in concluding that plaintiff was too busy with his can of beer, cigarette and match to take time to protest.

Plaintiff cites Harvey v. Wheeler, 57 Tenn.App. 642, 423 S.W.2d 283 (1967); however, in that case, this Court held that in such a case as this, the question of contributory negligence was for the jury.

Plaintiff cites Hicks v. Herbert, 173 Tenn. 1, 113 S.W.2d 1197 (1938); however, in that case, the Supreme Court affirmed a directed verdict for the defendant on the ground that the guest passenger was guilty of contributory negligence as a matter of law for knowingly riding with an intoxicated driver.

Plaintiff cites Edenton v. McKelvey, 186 Tenn. 655, 212 S.W.2d 616 (1948); however, in that case, the Supreme Court upheld a jury verdict for the plaintiff on the ground that the contributory negligence of plaintiff was a question of fact for the jury.

In the present case, there was adequate evidence to take the case to the jury on the question of plaintiff’s contributory negligence.

Plaintiff also insists that defendant was negligent as a matter of law in driving his vehicle off the paved surface of the road and losing control of same.

Defendant, Mac Holland, testified that he and his girl were on the way to a “creek party” when plaintiff stopped them and asked for a ride; that, as he approached a curve in the road at 40 to 50 miles per hour, his (defendant’s) eyes were blinded by lights of another vehicle; that he moved right to avoid the vehicle, got into some gravel and skidded off the road. Accepting this testimony as true, the jury was justified in finding for the defendant.

The jury rendered a general verdict. There is no record of what factual findings were made by the jury.

Where there is a general verdict, it must be presumed that the jury found favorably to the successful party on every issue as to which there was any evidence to support such a finding. Powers v. L. & N. B. Co., 183 Tenn. 526, 194 S.W.2d 241 (1946); Tennessee Cent. R. Co. v. Umensetter, 155 Tenn. 235, 291 S.W. 452 (1927), Little v. N. C. & St. L. Ry. Co., 39 Tenn. App. 130, 281 S.W.2d 284 (1954).

Under this rule, this Court must presume a finding of contributory negligence and/or a failure to find negligence on the part of defendant, either of which would have required a verdict for defendant. Thus the verdict of the jury must be affirmed.

This Court does not re-weigh the evidence upon appeal from a jury verdict. If there is any evidence to sustain the verdict, it must be affirmed. There is evidence to sustain the verdict.

The judgment of the Trial Court is affirmed. The defendant-appellant will pay the costs of his appeal.

Affirmed.

SHRIVER and DROWOTA, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    L. H. CRAIG and Oliver H. Dale, Plaintiffs-Appellees, v. Frank COLLINS, alias Cecil T. Collins, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.

    Dec. 6, 1974.

      Lucien Dale, Nashville, for plaintiffs-ap-pellees.
    Dan Garfinkle and George Fariss, Nashville, for defendant-appellant.

       No petition for certiorari was filed, however this opinion has been submitted to and approved for publication by the Supreme Court of Tennessee.

   TODD, Judge.

OPINION

In this action of unlawful detainer, the defendant, Frank Collins, has appealed from a jury verdict and judgment against him and in favor of the plaintiffs, L. H. Craig and Oliver H. Dale, for rent of $1,625.00 and attorney’s fees of $1,000.00.

The cause arose in General Sessions Court upon writ of unlawful detainer, upon which the General Sessions Judge rendered judgment for possession, but no rent.

The cause was transferred to Circuit Court by a petition for writ of certiorari and supersedeas. The final judgment of the Circuit Court recites:

“This cause came on to be heard on the 14th day of March, 1974, before the Honorable Lewis B. Hollabaugh, Special Judge of the Second Circuit Court of Davidson county, Tennessee and the jury of good and lawful men and women, having been respited from the previous days, to wit: March 12, 1974, and March 13, 1974, who, having heard the testimony of the witnesses and evidence offered in open Court, the argument of counsel and the charge of the Court, thereupon retired to consider their verdict, and after considering said cause returned into open Court and said that they found the issues joined in favor of the Plaintiffs, L. H. Craig and Oliver H. Dale, and against the Defendant, Frank Collins, alias Cecil T. Collins, and that the Plaintiffs were entitled to have and recover from the Defendant the amount of One Thousand Six Hundred Twenty-five Dollars ($1,625.00) for rent and the amount of One Thousand Dollars ($1,000.00) for attorney’s fees.
“IT IS THEREFORE, ORDERED AND ADJUDGED by the Court that L. H. Craig and Oliver H. Dale be and hereby are restored to the possession of a certain property known as 3127 Dickerson Road, Star Tavern, for which a Writ of Possession may issue, and that they have and recover from the Defendant, Frank Collins, alias Cecil T. Collins, the amount of Two Thousand Six Hundred Twenty-five Dollars ($2,625.00), of which amount his surety, Doris Brent, Brent Bonding Company, shall be liable not to exceed One Thousand Five Hundred Dollars ($1,500.00), plus the costs of this cause, for all of which execution may issue if necessary.”

The first assignment of error is as follows:

“THE COURT ERRED IN ENTERING JUDGMENT FOR PLAINTIFF FOR DAMAGES FOR RENT WHEN THERE WAS NO AVERMENT OF DAMAGES IN THE PLEADINGS, THE ACTION BEING ONE FOR DETAINER AND POSSESSION AND ATTORNEY FEES ONLY.”

Appellant cites Poster v. Andrews, 182 Tenn. 671, 189 S.W.2d 580 (1945), however that case originated in Circuit Court where formal, written pleadings are required. Loftis v. Dearing, 184 Tenn. 474, 201 S.W.2d 655 (1947), cited by appellant, originated in Chancery Court where formal, written pleadings are required. Neither of said cases was in unlawful detainer.

Pleadings before a justice of the peace (general sessions court), or in suits originating before them and carried to a higher tribunal, are ore tenus, except in cases where the plea is required to be under oath. Spencer v. Dixie Finance Co., 205 Tenn. 485, 327 S.W.2d 301 (1959), Shay v. Harper, 202 Tenn. 141, 303 S.W.2d 335 (1957); Neville v. Northcutt, 47 Tenn. (7 Cold.) 294 (1869); Wilson v. White, 20 Tenn.App. 604, 102 S.W.2d 531 (1937), Seaboard Sec. Co. v. Hammer, 10 Tenn.App. 527 (1927).

There is, of course, no record of the oral pleadings made to the General Sessions Court.

As to the oral pleadings made to the Circuit Court, the bill of exceptions recites only that:

“Whereupon Mr. Lucien Dale makes an opening statement and Mr. George Fariss states the defendant’s answer to the pleadings.”

This Court is therefore without any source of information as to what, if any, oral pleadings were presented in Circuit Court, and must presume that sufficient oral pleadings were presented to justify the resulting verdict and judgment.

Appellant nevertheless insists that no verdict or judgment could be rendered for rent where the original civil warrant did not demand rent. The original General Sessions Warrant consists of a printed form with blanks filled in by typewriter. It reads as follows:

DETAINER WARRANT
STATE OF TENNESSEE To the Sheriff or any Constable of COUNTY OF DAVIDSON. said County:
WHEREAS, complaint is made to me by L. H. Craig and Oliver H. Dale of a certain unlawful detainer made by Frank Collins, alias Cecil T. Collins in a certain property known as 3127 Dickerson Road situated Or 3125 Dickerson Road Operated as Starr Tavern in the County aforesaid and bounded or known and described as follows :
100 feet of property bordering on the Mobile Service Station south boundary__
Which land the said L. H, Craig and Oliver H. Dale alleges they are entitled to the possession of, and Frank Collins unlawfully detains from them.
We therefore, command you to summon Frank Collins, alias Cecil T. Collins to appear before the Court of General Sessions of Davidson County, Tennessee, to be held at the courtrooms of said County in said County on the 10th day of December, 1973, at 9:00 o’clock A..M., to answer the above complaint and claim for rents by plaintiff (s) in the sum of Three thousand and No/100 Dollars-($3,000.00) Dollars, and the costs of this cause, and a reasonable attorney’s fee.
This, the 3rd day of December, 1973.
GEORGE L. ROOKER Clerk of Court of General Sessions By /s/ Nora M. Bingham_ Deputy Clerk

The typed words and figures, “Three thousand and No/100 Dollars ($3,000.00),” appear to have been partially obliterated by blue pencil or ink, however they are clearly legible. When or by whom or why this alteration was made does not appear from this record.

§ 23-1612, T.C.A. prescribes a form of detainer writ which does not contain any demand for rents or damages. § 23-1614 provides that any defect in the writ “may be amended as other process and pleadings in court.” § 23-1627 provides as follows:

“23-1627. Monetary judgments for plaintiff. — In all cases of forcible entry and detainer, forcible detainer, and unlawful detainer, the justice of the peace trying the cause shall be authorized and it shall be his duty, if his judgment shall be that the plaintiff recover the possession, to ascertain the arrearage of rent, and interest, and damages, if any, and render judgment therefor. [Acts 1903, ch. 42, § 1; Shan., § 5106al; Code 1932, § 9261.]”

§ 23-1633, T.C.A. provides:

“23-1683. Monetary judgment in circuit court. — If the defendant obtain cer-tiorari, and, upon trial in the circuit court, the jury find that the plaintiff is entitled to the possession of the land, they shall also ascertain the value of the rents during the time the plaintiff has been kept out of possession, and such other damages as the plaintiff is entitled to, and the court shall give judgment against the defendant and his sureties for the amount.”

It appears from the evidence that the major part of the rent which was allowed by the jury was that which accrued during the pendency of certiorari from General Sessions to Circuit Court. This further supports the propriety of allowance of rent even though rents might not have been demanded in the original General Sessions Warrant.

The clear intent of the statute appears to be that the gravamen of a detainer suit is the wrongful detaining of realty, and that the ascertainment of the damages for detention, rents or otherwise, is a statutory incident to the proceeding. It is therefore not necessary for a plaintiff to demand damages in the detainer warrant in order to authorize a judgment for the same. See Bloch v. Busch, 160 Tenn. 21, 22 S.W.2d 242 (1929).

The first assignment of error is respectfully overruled.

The second assignment of error is as follows:

“THE VERDICT OF THE JURY WAS ERRONEOUS SINCE THE JURY DID NOT AWARD POSSESSION OF THE PROPERTY AND THE TRIAL COURT ERRED IN ENTERING JUDGMENT ON THE VERDICT.”

The charge to the jury concluded as follows:

“If after considering all the facts in this case and applying the law that the court has charged, you find for the defendant, your verdict should be, ‘We find for the defendant,’ and you need go no further. But if you find for the plaintiff and find that the plaintiff is entitled to possession of the land, then you should go further and ascertain the amount of any past due rent together with the value of the rent during the time that the plaintiff has been kept out of possession, if any. You should also determine whether the plaintiff is entitled to any penalty under the lease agreement, and how much. You should also go further and ascertain the amount, if any, of other damages suffered by the plaintiff as a result of the unlawful detention, together with any attorney fees you may find due if any.” (Emphasis supplied)

The foreman reported the following verdict:

“FORMAN: We are unanimous in our decision and we feel the plaintiff should be awarded rental of $325 for five months, or $1625, and a lawyer’s fee that would be fair of $1,000, making a total of $2,625. That is our verdict.”

The judgment entered upon said verdict quoted supra, states:

“It is therefore ordered . . . that (plaintiffs) be . restored to the possession of (described property) for which a writ of possession may issue.”

Appellant insists that an award of possession cannot be implied but must be expressly stated by the trier of fact, citing T.C.A. 23-1625. Said statute does not support this insistence.

No Tennessee authority has been found upon the question, however 5B C.J.S. Appeal and Error § 1794c, p. 83, states:

“Although the judgment is in part without support in the verdict or findings, if it is, in such particular, the only judgment possible under the evidence, it will not be disturbed; and a judgment which is demanded by the special issues will be sustained although it is not expressed in the usual and proper manner for a judgment on special issues or rests in part on implication, as will a judgment which goes beyond the findings but is supported by testimony under which the court may make the additional findings upon which it rests.” (Emphasis supplied)

Under the charge, quoted supra, the jury was required to find that the plaintiff was entitled to the possession of the land as a necessary prerequisite to the award of rents and/or damages. Therefore, the verdict for rent and attorney’s fee contained the inherent, necessary, and implicit finding that plaintiff was entitled to possession.

It would have been better practice for the Trial Judge to have required an express verdict for possession. However, this Court is satisfied that the award of possession was implicit in the verdict which was reported, and that the Trial Judge committed no error in entering judgment accordingly.

The second assignment of error is respectfully overruled.

The third assignment of error is as follows:

“THE JUDGMENT OF THE COURT AND VERDICT OF THE JURY WERE NOT SUPPORTED BY THE PROOF.”

In support of this assignment, defendant insists that there was no evidence of proper demand or waiver of demand of the rent due, citing Smith v. Holt, 29 Tenn.App. 31, 193 S.W.2d 100 (1945). The cited case was based upon an indefinite tenancy from month to month without an express lease. This Court held that, absent a lease provision for forfeiture, non-payment of rent does not effect a forfeiture, and that a tenancy of indefinite duration from month to month requires a full month’s notice for termination.

Said opinion held that the statute, T.C.A. § 23-1613, does not dispense with the necessary notice to terminate such a tenancy.

No authority is found in Smith v. Holt to require demand of rent in any particular manner.

The next insistence of appellant is as follows:

“2. There was a continual waiver of lease provisions in regard to food and rent with no notice to defendant that strict compliance would be required by a certain date. (B.E. 55, 56).”

Plaintiffs terminated the lease and sought possession on two grounds, to wit, (1) failure to maintain restaurant facilities on the premises as required by the lease and (2) subletting the premises in violation of the lease.

The lease provides in part as follows:

“This property must be operated as a Restaurant and failure to maintain a simple menu will become a breach of the contract and property will be vacated. Such menu must offer three alternatives, such as Hamburger Sandwich, Hamburger Plate with Potatoes, Sausage and eggs or suitable substitute for any item. Should injunction be necessary rent is to continue until the property is peacefully vacated.
“It is further understood and agreed that the said Lessee cannot rerent or subrent said premises or any part thereof, to any person or persons whatever, or to make any change or alterations in said buildings, without the consent of the Lessors in writing. And in case of the failure to pay any of the rent notes, or any part thereof, as they respectively fall due, or to give notes according to the terms and stipulations of a clause inserted in this lease for that purpose, or on failure to comply with any of the conditions herein named, the Lessors may continue the lease and recover damages for failure, or may elect, within 15 days after discovery of such failure, to enter and take possession of said premises for said breach,

There is adequate evidence in the record that the lease was violated in both of the above-stated respects in that defendant consistently failed to provide the required menu and did in fact place others in the premises to operate a business in their own name and behalf. The plaintiffs owned an adjoining motel which required an adequate restaurant for its patrons, and the failure to provide a satisfactory menu discouraged patronage of the motel.

The provision of the lease that the lessor “may elect within 15 days after discovery of said failure . . may be interpreted to imply waiver of forfeiture by failure to declare a forfeiture for a particular violation within 15 days after discovery of same. If such a waiver is implied by said words, it would not apply to a succession of violations or to continued violations from day to day or month to month. There is no evidence in the record as to the exact date on which subletting was discovered by the lessor; ergo no basis for finding a waiver by failure to act within 15 days thereafter.

The record does not support the premise that any violation was waived. Indeed, plaintiffs had been seeking to resume possession and defendant had been promising to relinquish possession for some time prior to the institution of the present action.

It is significant that defendant offered no evidence at the trial, hence all issues of fact were determined by the testimony of plaintiffs’ witnesses.

Since there is competent evidence in the record to support the verdict, it must be sustained. On appeal from jury verdicts, the appellate courts do not weigh the evidence; and, if some material and substantial evidence supports the verdict, it must be affirmed. Sullivan v. Morrow, Tenn. App., 504 S.W.2d 767 (1973); Scarbrough v. City of Lewisburg, Tenn.App., 504 S.W.2d 377 (1973) and authorities cited therein.

The third and last assignment of error is respectfully overruled.

Defendant makes no issue as to the amount of rent or attorney fee allowed by the jury. The lease provided for payment of reasonable attorney fees.

The judgment of the Trial Court is affirmed. The costs of this appeal are taxed against appellant and his surety.

Affirmed.

SHRIVER, P. J., concurs.

ADAMS, Special Judge, concurs.


author: BREWSTER, Justice.

text:
    Donald GLITTENBERG, Appellant, v. Faye HUGHES, Appellee.
    No. 17638.
    Court of Civil Appeals of Texas, Fort Worth.
    June 27, 1975.
    Kelsey & Wood, and R. William Wood, Denton, for appellant.
    Faye Hughes, pro se.
   OPINION

BREWSTER, Justice.

This case originated in the justice court where a judgment for $200, plus costs, was rendered in favor of the plaintiff, Faye Hughes, and against the defendant, Donald Glittenberg. Glittenberg appealed the case to the County Court. On September 27, 1974, the County Clerk’s office sent a letter to an attorney, Earl Coleman, with a copy of that letter to Mr. Bill Wood, Glitten-berg’s attorney, advising that the case had been set for trial on October 9, 1974, at 10 A.M. On October 9, 1974, at 10 A.M., the County Court, in the absence of defendant and his attorney, rendered a default judgment for $200, plus costs of court, in favor of Faye Hughes and against the defendant, Donald Glittenberg, and this appeal is being made by Glittenberg from that decree.

The judgment appealed from recites that on October 9, 1974, the date the case had been set for trial, the plaintiff, Faye Hughes, appeared in person in the County Court and announced ready for trial, and the defendant and his lawyer, although having been notified in writing of the setting, both failed to appear and that the court proceeded to trial in their absence and based on evidence offered by plaintiff at the trial the court rendered the judgment being appealed from.

The defendant, Glittenberg, filed a motion for new trial wherein he alleged that his failure to appear at the trial was not intentional or the result of conscious indifference on his part, but was accidental and due to a mistake on the part of his attorney in that his attorney’s secretary, on receiving the letter from the County Clerk advising of the trial date, accidentally misfiled that letter; that on the morning of the trial date she discovered her error and at once called it to attorney Wood’s attention; that Mr. Wood, thinking that Earl Coleman was the attorney for plaintiff, Faye Hughes, called Coleman’s office to see if the case was still going to trial on that date; he was by that office advised that Mr. Coleman was out of town and was not trying any case in County Court that day and that no other lawyer in Coleman’s office was going to try this case that day; after receiving this information he mistakenly assumed that the case had been passed and did not call his client, Glittenberg, and tell him to be present at the trial and Mr. Wood did not go to the County Court himself or call the judge, and he had no idea that Mrs. Hughes had released her attorney, Mr. Coleman, and gone to court alone to represent herself in the County Court trial on that date.

In support of Glittenberg’s motion for new trial he filed an affidavit wherein the affiant swore that the facts alleged in his motion for new trial, as set out in the last paragraph above, were true and at the hearing of the motion for new trial Glitten-berg’s attorney, Wood, testified to the truth of the facts set out in the last paragraph above. Glittenberg testified at the hearing that he was never advised beforehand of the October 9, 1974, trial setting.

The suit was brought to recover the contract price that Mrs. Hughes contended that the Glittenbergs had contracted and agreed to pay her for a washer, a dryer and a heater.

In his motion for new trial Glittenberg alleged that he had a meritorious defense to plaintiff’s action in that he made no agreement with plaintiff to pay her for the washer, dryer and heater the sum of $200 as she alleged. In his affidavit in support of the motion for new trial it was sworn that the agreement of the parties was not that Glit-tenberg would pay $200 for the washer, dryer and heater, but that the parties had agreed that the washer and dryer would be sold to Glittenberg for $100 and the heater for $15. In Glittenberg’s motion for new trial he also alleged that all the parties’ dealings had arisen out of the sale of a house and lot to Glittenberg by the plaintiff; that the parties had agreed that certain items in the house would be included in the sale, but that after the deal was closed, these items were removed from the house by plaintiff in violation of the contract, to defendant’s damage in the amount of $79.11; that after the deal was closed plaintiff broke glass in the house to defendant’s damage in the sum of $10.29; that a dishwasher included in the sale was represented to be in good working condition, but that it was not, to defendant’s damage in the sum of $115. The defendant, in his motion for new trial, contended that he was entitled to set off these items of damage against any sums that might be found due and owing by him to Mrs. Hughes. The affidavit that Glittenberg filed in connection with his motion for new trial set out all those matters referred to as being a meritorious defense to the plaintiff’s suit and the affiant swore that the facts referred to relating to such claimed meritorious defense were true.

In defendant’s motion for new trial he also alleged that, “The granting of Defendant’s Motion for New Trial will not occasion delay or otherwise work any injury or hardship upon Plaintiff, FAYE HUGHES.”

The record shows that the judgment was rendered on October 9, 1974, and was reduced to writing and signed on November 14, 1974. Defendant’s motion for new trial was filed on November 25, 1974, and was overruled on December 12, 1974.

We affirm.

Defendant’s 2nd point of error is that the trial court erred in refusing to grant a new trial because the failure of defendant and his lawyer to appear for trial was not intentional nor the result of conscious indifference and his motion for new trial, affidavit, and evidence at the hearing set forth a meritorious defense.

We overrule this point of error.

The rule that controls the outcome of cases such as this is announced in the case of Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, as follows: “A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.”

This rule applies in cases where motions for new trial seek to set aside default judgments rendered on failure of a defendant to file an answer and also to those that are rendered on the failure of a party to appear for trial after filing an answer. Ivy v. Carrell, 407 S.W.2d 212 (Tex.Sup., 1966).

We are convinced that the record in the case shows that Glittenberg’s failure to file an answer was not intentional or the result of a conscious indifference on the part of defendant and that such failure was due to an accident or mistake. Kirk v. Farmers Aerial Spraying Service, Inc., 496 S.W.2d 739 (Amarillo, Tex.Civ.App., 1973, no writ hist.) and Continental Airlines, Inc. v. Carter, 499 S.W.2d 673 (El Paso, Tex.Civ.App., 1973, no writ hist.).

The question of whether or not the defendant and his lawyer were negligent in failing to appear for trial at the time the case was set for trial is not involved in passing on these elements of the rule just referred to. Ivy v. Carrell, supra, and Continental Airlines, Inc. v. Carter, supra.

Another element of the Craddock case doctrine is that the motion for new trial must “set up” a meritorious defense. Glit-tenberg’s motion for new trial and supporting affidavit met this requirement. The motion for new trial alleged facts that in law constituted a defense to plaintiff’s action and the motion for new trial was supported by an affidavit that proved prima facie the facts that constituted defendant’s meritorious defense. See Ivy v. Carrell, supra, and 4 McDonald, Texas Civil Practice, Sec. 18.10.3, page 270.

In analyzing the rule laid down in the Craddock case, supra, the court in the case of Grammar v. Hobby, 276 S.W.2d 311 (San Antonio, Tex.Civ.App., 1955, ref., n. r. e.) said the following: “This rule requires four things before a default judgment will be set side: (1) The failure to file an answer must not have been intentional or the result of conscious indifference on the part of the defendant. (2) It must have been due to a mistake or an accident. (3) The motion must set up a meritorious defense. (4) The motion must be filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.”

Each of those four elements is as important as the other and the burden was on the one moving for a new trial (Glittenberg) to establish the element of the Craddock case rule that is listed above as No. 4. In other words, the burden was on Glittenberg to negative injury to the plaintiff. Griffin v. Duty, 286 S.W.2d 229 (Galveston, Tex.Civ.App., 1956, no writ hist.). Glittenberg made no effort to discharge that burden. See also 4 McDonald, Texas Civil Practice, Sec. 18.10.4, page 270.

The only mention that Glittenberg ever made of element No. 4 of the Craddock case rule was when he alleged it (as above set out) in paragraph V of his unsworn motion for new trial. He did not attempt to offer any evidence relating to it in his affidavit that he filed in support of the motion for new trial and he offered no evidence whatever on that issue at the hearing of the motion for new trial.

With the record in this state we hold that the trial court did not abuse its discretion in overruling Glittenberg’s motion for new trial. The case only involved $200. The record indicates that plaintiff and her husband had twice taken off from their jobs in order to attend court sessions on this matter. The cost of two persons taking off from their jobs to attend court hearings could soon consume the entire $200 involved.

Defendant’s first point of error is that the trial court erred in refusing to order a new trial where the judgment was not supported by any pleadings.

We overrule the point.

In order to show an error in the respect complained of, the burden was on the appellant to make the record presented to this Court on the appeal show that the judgment in the case was in fact not supported by any pleadings.

The transcript in the case does not have a plaintiff’s petition contained therein. But that circumstance does not establish it to be a fact that there was no such petition on file in the papers in the trial court. The clerk of the trial court affixed the following certificate to the transcript that is on file in this court: “I, MARY JO HILL, Clerk of the County Court at Law of Denton County, Texas do hereby certify that the above and foregoing 30 pages of transcript contain and constitute a true and correct copy of all papers requested by attorney which have been filed in this cause. Witness my hand,” etc. (Emphasis ours.)

The certificate is thus to the effect that it contains all the filed papers in the case that the lawyers involved requested her to put into the transcript.

In addition to that the judgment being appealed from is in the transcript and it contains the following recital: “The defendant’s name was thereupon duly called at the courthouse door . . . and after neither defendant nor his attorney in response thereto appeared for trial, all matters in controversy were submitted unto the Court for its determination and adjudication; and, the Court having examined the pleadings, heard the testimony and evidence offered,” etc. (Emphasis ours.)

There is nothing in the appellate record submitted to us to indicate that there are no pleadings to support the judgment.

In view of the recital in the judgment to the effect that the trial court did examine the pleadings, with nothing else in the record to show otherwise, we are required to assume that such pleadings are on file in the trial court.

Because appellant did not make the record show the existence of the fact upon which his first point of error is based (his claim that the judgment is not supported by any pleadings), we overrule his first point of error.

Affirmed.


author: DIES, Chief Justice.

text:
    William James LLOYD, Appellant, v. UNIVERSITY OF TEXAS, Appellee.
    No. 7709.
    Court of Civil Appeals of Texas, Beaumont.
    June 5, 1975.
    Rehearing Denied July 10, 1975.
    John E. Serna, San Antonio, for appellant.
    Jack Sparks, Austin, for appellee.
   DIES, Chief Justice.

Appellant was arrested by the University of Texas Police for D.W.I. While being taken to the Austin Police Station, he fell out of the car. He filed suit under the Texas Tort Claims Act [Vernon’s Tex.Rev. Civ.Stat.Ann. art. 6252-19 (1970)] for damages against the University of Texas — ap-pellee — which moved for Summary Judgment. Summary Judgment was granted from which this appeal is perfected.

His points one and two assert a fact issue exists whether the University’s employees were in fact providing police protection at the time of appellant’s injury.

Section 14(9) of the Tort Claims Act excludes “[a]ny claim based on an injury or death connected with any act or omission arising out of civil disobedience, riot, insurrection or rebellion or arising out of the failure to provide, or the method of providing, police or fire protection.”

Plaintiff’s claim is based upon an injury connected with an act or omission which arose out of the method of providing police protection. We hold specifically that appellant’s arrest for the offense of driving while intoxicated on the campus of the University of Texas was a method of providing police protection. Davis v. County of Lubbock, 486 S.W.2d 109 (Tex.Civ.App. — Amarillo 1972, no writ). These points are overruled.

Appellant has a point contending the exemption does not apply because at the time of his injury University police were not “Peace Officers” as defined in Vernon’s Tex.Code Crim.Proc.Ann. art. 2.12 (1966). (They have since been added by amendment.)

Art. 51.203 of the Tex.Educ.Code Ann. permits “[t]he governing boards of each state institution of higher education [to] employ campus security personnel . and may commission them as peace officers.” They are then “vested with all the powers, privileges, and immunities of peace officers.” This point is overruled. We find no merit in any other point and all are overruled. The order granting the Summary Judgment is affirmed.

Affirmed.


author: DOUGLAS, Judge.

text:
    Ex parte Walter Henry LEMAY.
    No. 50113.
    Court of Criminal Appeals of Texas.
    July 16, 1975.

      Donald Eastland, Hillsboro, for petitioner.
    Frank B. McGregor, Dist. Atty., Hills-boro, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is a post-conviction habeas corpus proceeding under Article 11.07, Vernon’s Ann.C.C.P. Lemay seeks relief from his conviction on July 22, 1943, for the offense of burglary of a private residence at night. He contends that the primary conviction and the two prior convictions used to enhance the punishment to life under Article 68, Vernon’s Ann.P.C. (1925), are void since he was convicted in all three without benefit, or waiver, of counsel.

In his application for habeas corpus, petitioner alleges that in the primary conviction he pled guilty without the assistance of or waiver of counsel and that he was an indigent. He further alleges that counsel was appointed solely for the purpose of preparing a waiver of jury trial and that such a limited appointment denied him effective assistance of counsel. He also alleges that neither the court nor appointed counsel advised him of his right to appeal and of his right as an indigent to have a court-appointed counsel on appeal, therefore, he did not waive the right to appeal.

At an evidentiary hearing petitioner testified that on July 22, 1943, he entered the courtroom, sat down and the judge asked him how he pled. He told him that he pled guilty. He had not conferred with a lawyer prior to entering the courtroom. He testified that the judge did inquire as to whether he had any money or could afford a lawyer. He said that he responded by saying that he didn’t have money enough to hire a lawyer. The judge then iriquired if Mr. Moore (an attorney) was in the courtroom. Upon being advised that he was not, the judge sent for Mr. Moore. Petitioner testified that when Moore came into the courtroom he said, “Well, what can I do for you boys?” Petitioner answered by saying that there was not much he could do because he had already pled guilty. Petitioner testified that Moore aided him in waiving the jury but that such waiver was done verbally and that Mr. Moore did not prepare any papers and never discussed the facts of the case with him. After the jury was waived, he received his sentence.

The State offered no evidence at the hearing and relies upon the recitations in the judgment that Lemay appeared with counsel.

The trial court concluded at the end of the hearing that petitioner was not entitled to the relief sought. He found that petitioner was represented by counsel at and during the trial of the primary offense.

This Court is not bound by the findings of fact and conclusions of law of the trial court. Ex parte Young, 479 S.W.2d 45 (Tex.Cr.App.1972).

The appointment of counsel for an indigent is required at every stage of the criminal proceedings where substantial rights may be affected. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336. Application of this principle is fully retroactive. McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2; Ex parte Bird, 457 S.W.2d 559 (Tex.Cr.App.1970).

Testimony of the petitioner, if uncorroborated, would be insufficient to overcome the presumption of the validity of the recitations in the judgment. In the primary conviction, the judgment was a form judgment which stated in the printed portion of the form that the appellant “appeared in person, his counsel also being present. . . ”

The docket sheet in Cause No. 18284, the primary offense, has a space at the top for “Attorneys” and no name is listed. Under the heading “Orders of the Court” an entry signed by the trial judge states:

“Hon. D. T. Moore appointed to assist Deft, in preparing and filing waiver of jury trial. This order being entered at request of Deft, in open court.
/s/ J. D. Stephenson Dist. Judge”

Article 10a, V.A.C.C.P., (1925), in effect at the time of petitioner’s trial, stated:

“The defendant in a Criminal prosecution for any offense classified as a felony less than a capital offense, shall have the right, upon entering a plea of guilty, to waive the right of a trial by a Jury, conditioned, however, that such waiver must be made in person by the defendant in open Court with the consent and approval of the Court and the duly elected and acting Attorney representing the State. Provided, that said consent and approval by the Court shall be entered of record on the Minutes of the Court and the consent and approval of the Attorney representing the State shall be in writing, duly signed by said Attorney and filed in the papers of the Cause before the defendant enters his plea of guilty.
“Provided, that before a defendant who has no Attorney can agree to waive a Jury, the Court must appoint an Attorney to represent him.”

In 1943 an attorney did not have to be appointed for the entire trial. See Holton v. State, 143 Tex.Cr.R. 415, 158 S.W.2d 772 (1942), cert. den. 316 U.S. 703, 62 S.Ct. 1311, 86 L.Ed. 1771.

Article 10a, supra, made it mandatory that counsel be appointed for the waiver of a jury trial on a plea of guilty in a felony less than capital. Hernandez v. State, 138 Tex.Cr.R. 4, 133 S.W.2d 584 (1939); Singleton v. State, 138 Tex.Cr.R. 519, 137 S.W.2d 21 (1940). This requirement was comparable to the requirement of appointment for preparation of an application for suspended sentence under Article 776a, V.A.C.C.P. (1925). See Ex parte Huddleston, 149 Tex. Cr.R. 388, 194 S.W.2d 401 (1946).

Further, the judgment form recites:

“. . . thereupon the defendant requested the consent and approval of the court to waive the right of a trial by jury, and whereas such consent and approval, of the duly elected and acting attorney representing the state, in writing duly signed by said attorney, was filed in the papers in said cause before the defendant entered the plea of guilty, and it appears that all prerequisites required by law for the waiving of this right have been performed.”

The trial court apparently complied with the law at the time of the trial.

The docket sheet recites specifically that the attorney was appointed for the preparation of the waiver of a jury. This corroborates petitioner’s testimony. In Ex parte Blaine, 472 S.W.2d 514 (Tex.Cr.App.1971), we noted that the docket sheet is presumably prepared on the date shown thereon and is presumed to be correct. We hold that the statement on the docket sheet sufficiently corroborates petitioner’s testimony and overcomes the recitations of the form judgment. See Ex parte Williams, 486 S.W.2d 566 (Tex.Cr.App.1972), and Ex parte Swinney, 499 S.W.2d 101 (Tex.Cr.App.1973).

Since the right to have an attorney represent the accused at all proceedings where substantial rights may be affected is retroactive, Mempa v. Rhay, supra, and McConnell v. Rhay, supra, the petitioner is entitled to the relief sought even though the trial court complied with the law at the time of trial.

It appears that appellant has accumulated a total time credit of 44 years, nine months and nine days as of the first of May, 1975. According to appellant’s sworn application for writ of habeas corpus he is also being held pursuant to a conviction from Johnson County, Cause No. 17740, punishment having been assessed at fifty years on November 16,1943. A copy of this order will be forwarded to the Department of Corrections.

Petitioner is ordered discharged from confinement under the sentence in this cause. When he has served his time under the Johnson County, and any other valid, conviction against him, he will be entitled to be discharged.

It is so ordered.

      . The sentence, judgment and docket sheet show the offense to be “Habitual criminal.” There is no such offense as habitual criminal. See Ex parte Burch, 160 Tex.Cr.R. 83, 267 S.W.2d 560 (1954). The indictment however alleges the offense of burglary of a private residence at night and alleges two prior convictions for enhancement.


author: MORRISON, Judge.

text:
    Edward Alexander CAMPBELL, Appellant, v. The STATE of Texas, Appellee. Thomas Wayne SMITH, Appellant, v. The STATE of Texas, Appellee.
    Nos. 49744, 49745.
    Court of Criminal Appeals of Texas.
    July 16, 1975.

      Jim D. Lovett, Clarksville, for appellant.
    Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is assault with intent to murder; the punishment as to each appellant, twenty years.

We are met at the outset with the appellants’ contention that the evidence is insufficient to support the convictions in this admittedly circumstantial evidence ease. A detailed discussion of the facts will be necessary.

The witness Glass, a resident of a rural area of Red River County, while on his way to church about 5 p. m. on December 1, passed a light or white colored automobile going in the opposite direction, which he thought to be “maybe a 1964 model Rambler,” driving fast on a country road. He proceeded three-quarters of a mile, and there observed Peek (the injured party) lying in the bar ditch. An examination revealed that Peek had sustained injuries to the left side of his head. “A pretty good streak of blood going across the blacktop” of the road was observed by Glass. It was his opinion that no vehicle had crossed this “streak of blood” other than his automobile. A hatchet bearing signs of blood on it was found approximately 20 feet from Peek. Peek was unconscious and wore no shoes. The findings at the scene were corroborated by the investigating officers. The ambulance attendant testified that he took Peek to Clarksville and then to Parkland Hospital in Dallas.

Peek’s wife testified that he left home at about 11 o’clock in the morning of December 1, on his way to a dog trade in Canton, and that he had been drinking. She said that he was traveling in a “white Rambler” automobile. She next saw her husband at 2 a. m. on December 2, in the intensive care unit of Parkland Hospital. She further related that he was severely injured and had been unable to cany on a conversation, use his right hand or do any work since that time.

Peek testified, with extreme difficulty and in answer to leading questions, that he left home on the day in question and that he picked up two hitchhikers, and when asked whether they were men or women, he pointed in the court room and answered, “Right there”. When State’s counsel asked, “these two men right over there? ” Peek answered, “Yeah”. He was, however, unable to state where he picked up the hitchhikers, where the three of them went or how he received his injury.

Officer Rice of the Mesquite Police Department testified that a few minutes past 1:00 a. m. on December 2 he stopped a white 1966 Rambler on an interstate loop near Dallas for speeding. He subsequently arrested appellant Campbell, the driver of the car, for driving while intoxicated, and he had appellant Smith drive the vehicle back to the Mesquite Police Headquarters. After running a license check, Rice determined that the license on the Rambler actually belonged to a Ford registered to a person bearing the same name as one of the appellants and that the Rambler should have had a license registered to one Paul Yates. He later released Campbell and Smith to the custody of the Red River County Sheriff’s Department.

Sheriff M. E. McGuire of Red River County testified, in addition to his findings at the scene which were substantially the same as those testified to by the witness Glass, that when appellants were brought to the Red River County Jail Campbell had on a pair of tan cowboy boots. This was corroborated by the testimony of Deputy Sheriff J. D. Mitchell. These boots were identified by Mrs. Peek as belonging to her husband and as being worn by him when he left home on the day of the offense.

Mrs. Peek also identified the hatchet found at the scene as belonging to her husband and that he usually carried it in his automobile. She stated that her husband had purchased the automobile from a used car lot some two or three months prior to the day in question.

Appellant 'relies solely upon Culmore v. State, Tex.Cr.App., 447 S.W.2d 915, which was reversed because the evidence was not sufficient to show that Culmore exercised any control over the contraband found in the house where he was arrested.

We have concluded that the evidence is sufficient.

In his second ground of error appellant complains that the trial court abused its discretion and erred in permitting Deputy Sheriff J. D. Mitchell to testify for the State after he had heard much of the other evidence presented in the case.

The record indicates that at the start of the trial on the merits a list of witnesses to be called was read by the State. This list did not include the name of Mitchell. After the witnesses on the list were sworn, appellants invoked the rule. When Mitchell was called to testify, appellants objected on the grounds that the rule had been invoked, and since Mitchell had been in the court room for most of the presentation of the State’s case, he should not be permitted to testify. The objection was overruled. The record reflects that Mitchell had the appellants in custody and that was his reason for being in the court room. In Green v. State, 159 Tex.Cr.R. 171, 262 S.W.2d 202, this Court said it was not an abuse of discretion to permit an officer to testify who had been in the court room guarding the accused.

Assuming, however, that there was a violation of the rule, this is not in itself automatically reversible error. Haas v. State, Tex.Cr.App., 498 S.W.2d 206. It is a matter within the trial court’s discretion and a presumption exists that such discretion was properly exercised until appellant has shown otherwise. Owens v. State, Tex.Cr. App., 503 S.W.2d 271; Marshburn v. State, Tex.Cr.App., 491 S.W.2d 663. In determining whether the trial court abused his discretion, we must look to whether or not appellants have in fact been injured by the allowing of the testimony by a witness who has violated the rule. We would observe that the witness in question had not been listed to be called nor placed under the rule. See Miller v. State, Tex.Cr.App., 455 S.W.2d 253.

In the brief, appellants argue that they were injured because the only testimony in the record which linked the appellants to the boots is the testimony of Deputy Sheriff J. D. Mitchell that appellant Campbell was wearing the boots when he was brought from Mesquite to Clarksville. However, the record indicates that Sheriff McGuire, a witness who had been sworn and placed under the rule at the start of the trial, testified to the same fact. No abuse of discretion has been shown by the trial court in allowing Mitchell to testify. Haas v. State, supra. The ground is overruled.

In the third ground of error, appellants contend that the trial court erred in failing to declare a mistrial due to constant and prejudicial references to blood by the State. At the outset we observe that this ground of error is multifarious and not in compliance with Article 40.09, Vernon’s Ann.C.C.P. However, even if we were to consider it in the interest of justice, physical facts and circumstances surrounding attempted homicide are admissible as tending to throw light on the transaction, and thus reveal its general nature. In the case at bar, it was relevant on the issue of intent to kill. Bell v. State, Tex.Cr.App., 442 S.W.2d 716; Guillory v. State, Tex.Cr.App., 400 S.W.2d 751; Hall v. State, 164 Tex.Cr.R. 573, 301 S.W.2d 161.

In ground of error four, appellants contend that the trial court erred in not striking the in-court identification of the appellants by the injured party, because the State did not prove that the in-court identification was not contaminated by prior prejudicial acts in violation of appellants’ rights. No objection was made at the time the complaining witness identified appellants; therefore, they have not properly preserved error. Compton v. State, Tex.Cr. App., 500 S.W.2d 131. Further, appellants point to no fact which would evidence any taint in Peek’s identification of them. The ground is without merit. McCullough v. State, Tex.Cr.App., 461 S.W.2d 404.

In the final ground of error appellants complain that the trial court erred in instructing the jury that the range of punishment was not less than two nor more than twenty years.

Appellants were originally indicted on December 19, 1973, but were not tried until the new Penal Code became effective. They elected to be punished under the provisions of the new Penal Code and are now objecting to the trial court’s charging the jury at the punishment stage on a second degree felony rather than a third degree felony. No written objections to the charge appear in the record. Article 36.14, V.A.C. C.P. requires objections to the charge be in writing. Nothing is presented for review. Keith v. State, Tex.Cr.App., 499 S.W.2d 187.

The judgments are affirmed.

ROBERTS and ODOM, JJ., concur in the results.


author: BROWN, Commissioner.

text:
    Richard Earl CHAPMAN, Appellant, v. The STATE of Texas, Appellee.
    Nos. 50489 — 50495.
    Court of Criminal Appeals of Texas.
    July 16, 1975.
    Will Gray, Bob C. Hunt, Court appointed, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, and Bert Graham, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

Appellant plead guilty before the court and was assessed a punishment of five (5) years in each of the seven robbery by assault cases. Appellant is also serving a 25 year sentence in a robbery case which was affirmed by this Court on January 31,1973. Chapman v. State, Tex.Cr.App., 489 S.W.2d 584.

Appellant first contends that the court erred in not conducting a competency trial prior to receiving the pleas of guilty. The record reveals that on January 7,1974, appellant’s attorney introduced in evidence a psychiatric evaluation report by Le Roy Androes, M.D., to whom appellant had been referred by his attorney. In his evaluation conducted on December 18, 1973, the doctor found appellant not to be psychotic. The doctor further found appellant to be oriented to time, place and person. His thoughts were logical and coherent. His intelligence was in the bright normal range and he appeared to be capable of abstract thinking. Also, the court inquired of appellant’s counsel as to the competency of appellant. Counsel, who had represented appellant since August 7, 1970, stated that appellant was able to intelligently assist counsel and in counsel’s opinion was mentally competent. Under these circumstances, we find that the careful trial judge did not err in receiving appellant’s pleas of guilty.

Appellant next contends that these seven convictions should be vacated because he was denied a speedy trial. Although these robberies were committed during the years 1969 and 1970 and appellant was not tried in these seven cases until January 1974, this Court as well as the federal courts have repeatedly held that where a plea of guilty is voluntarily and understandingly made, all non-jurisdictional defects, including claimed deprivation of federal due process, are waived. Cf. Brown v. State, Tex.Cr.App., 487 S.W.2d 86; Helms v. State, Tex.Cr.App., 484 S.W.2d 925; Carpenter v. State, Tex.Cr.App., 477 S.W.2d 22; Chambers v. Beto, 5 Cir., 428 F.2d 791; Farmer v. Beto, 5 Cir., 421 F.2d 184 and Litton v. Beto, 5 Cir., 386 F.2d 820.

The judgments are affirmed.

Opinion approved by the Court.


author: DAVIS, Commissioner.

text:
    Terry Lee TORME, Appellant, v. The STATE of Texas, Appellee.
    No. 50349.
    Court of Criminal Appeals of Texas.
    July 9, 1975.
    James P. Finstrom, Court appointed, Dallas, for appellant.
    Henry Wade, Dist. Atty., Maridell Tem-pleton and Phil Dixon, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from an order revoking probation.

On November 18, 1974, appellant pleaded guilty before the court to the offense of aggravated robbery. Punishment was assessed at five years, but the imposition of sentence was suspended and appellant granted probation.

Included in the conditions of probation was the requirement that appellant “(a) Commit no offense against the laws of this or any other state or the United States.

Among violations of conditions of probation set forth in the State’s amended motion to revoke filed on January 7, 1975 was the allegation that “On the 31st day of December, 1974, in Dallas County, Texas, Terry Lee Torme ■ [appellant] unlawfully and knowingly engaged in deviate sexual intercourse with Frank Earl Thomas by the use of force.”

The record reflects that after a hearing on the State’s motion to revoke on January 23, 1975, the court entered its order revoking appellant’s probation.

Appellant urges that the court erred in revoking his probation in that the evidence fails to reflect that appellant was the person who committed the act in question, and further that there is no showing that appellant’s alleged acts were committed with intent to arouse or gratify the sexual desire of any person.

One Frank Earl Thomas, a prisoner in the Dallas County Jail on the night of December 81, 1974, identified appellant as the person who asked to make “love” to him. After Thomas refused the request, other prisoners known as “Kung Fu” and Skinner beat up on Thomas by hitting Thomas with their fists and kicking him. After Thomas testified that Skinner committed an act of sodomy on him, the record reflects the following:

“Q. All right. Then what happened next?
“A. Then after he [Skinner] got through, that’s when he come up (indicating).
“Q. Who is ‘he’?
“A. The Defendant there.
“Q. This Defendant right over, here, Torme?
“A. Yeah.
“Q. What did he do?
“A. After Skinner got through he crawled up there and started f- me.
“Q. Then by that do you mean that he inserted his penis in your anus?
“A. Yes.
“Q. And are you sure that he did that?
“A. Yeah. I saw him.
“Q. You saw him get on top of you?
“A. I saw him crawling in behind me.
“Q. Is there room for much more than two people in that bunk?
“A. Well, the way I was in it wasn’t no room but just us two.”

We find that the foregoing evidence sufficiently identifies appellant as having committed the act in question.

V.T.C.A. Penal Code, Sec. 21.04, provides in pertinent part:

“(a) A person commits an offense if, without the other person’s consent and with intent to arouse or gratify the sexual desire of any person, the actor:
(1) engages in deviate sexual intercourse with the other person, not his spouse, whether the other person is of the same or opposite sex;
* * * * * *
“(c) An offense under this section is a felony of the second degree.

Appellant urges that there is no testimony that appellant made any statement which indicated his intent in committing the alleged acts. We conclude that “intent to arouse or gratify the sexual desire of any person” can be inferred from appellant’s actions, coupled with his statement that he wanted to make love to Thomas.

It is further noted that the court in its order revoking probation made the finding that appellant violated “condition (a), to wit: Commit no offense against the laws of this or any other state or the United States.” Clearly, the evidence reflects a violation of V.T.C.A. Penal Code, Sec. 21.06.

There being no abuse of discretion shown in revoking probation, the judgment is affirmed.

Opinion approved by the Court.

      .V.T.C.A. Penal Code, Sec. 21.06, provides:
      “(a) A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.
      “(b) An offense under this section is a Class C misdemeanor.”


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

text:
    Charles Richard ELS, Appellant, v. The STATE of Texas, Appellee.
    No. 49072.
    Court of Criminal Appeals of Texas.
    June 25, 1975.
    Rehearing Denied July 16, 1975.

      Calvin A. Hartmann, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde P. DeWitt, III, and Jack Bodiford, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. MeAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted of murder; punishment was assessed at ten years.

In grounds of error four through nine, appellant contends the trial court committed error in allowing the State to go into his character and reputation for being peaceful and law abiding when it had not been placed in issue and for allowing the State to ask numerous “have you heard” questions of the witness Edith Stribling, the mother of the deceased. Proper objections were made to preserve these grounds for review.

The State takes the position that the only probative evidence given by the witness Stribling was of the character and reputation of appellant.

The entire testimony elicited on direct examination of Stribling, omitting conversation among counsel and the court, was as follows:

“Q. Would you talk loud enough for us all to hear and tell us your name, please?
“A. Edith Stribling.
“Q. And where do you live?
“A. 13601 Kaltenbrun. I can’t say it.
“Q. Do you know Charles Els seated here?
“A. Yes, sir.
“Q. And it was your daughter Joy Serb that was shot and killed?
“A. Yes, sir.
“Q. How long have you known Charles Els?
“A. Pretty close to a year.
“Q. Was he going with your daughter?
“A. Yes, sir.
“Q. Did they come to your house on many or few occasions during this period of time that you have known him?
“A. Yes, sir, lots of times. He would eat supper out there.
“Q. They would come out there and both eat supper?
“A. Yeah, he would come out and help me do things.
“Q. Help you do what?
“A. He painted a room for me, fixed the bathroom like, fixed my car, just anything I asked him to do.
“Q. I hand you what has been marked Defendant’s Exhibit No. 1 and ask you not to exhibit it to the jury at this time. Would you look at it yourself?
“A. Yes.
“Q. Is that a picture that you took and handed me?
“A. My little boy taken it in our house.
“Q. When?
“A. Right after Christmas.
“Q. Of ’72 last year?
“A. Yes, sir.
“Q. Just a few months ago?
“A. Yes, sir.
“Q. And that depicts one of those occasions when Charles Els was visiting in your home with your daughter?
“A. Yes, sir.
“Q. (By Mr. Kershner) Mrs. Stribling, during the year that you have known Charles Els, have you known him to beat up your daughter?
“A. (By Witness) No, sir.
“Q. He has never used any force or violence on her (the deceased) that you know of?
“A. No.
“Q. Have you ever known him to threaten to kill her or harm her?
“A. No, sir.
“Q. Did they ever discuss with you their plans for matrimony?
“A. Yes, sir. He wanted to marry her, and she said, ‘Well, I am not quite ready,’ so — but she told me she was going to marry him and she would go over ever weekend and I would try to call her back home. So, she would say, ‘Well, I am going to stay over here.’ I said, ‘Well, why don’t you come home?’ I wanted her to go to mama’s with me. And she said, ‘Well, because I love him, I want to marry him.’ And so, I just — he says, T will take care of her until you get back,’ so he did.
“Q. Did you know Bill Selman and Tom Fenrose that was out in the hall?
“A. Yes, sir, but I haven’t saw them too often.
“Q. Have you had occasion to go to either one of their homes?
“A. Yes, sir.
“Q. What was the occasion?
“A. Well, I went there once to pick up Joy. And then I went over to Bill’s house to take a watch for him to fix. He fixes watches.
“Q. He is a watchmaker?
“A. Yes, sir. I saw Tom lots of times down at the restaurant where he used to work until he got in the hospital on 24th and Shepherd when the old one was there.
“Q. Do you have any animosity in your heart for Charles Els?
“A. Do what?
“Q. Do you hold anything against Charles Els?
“A. No, sir, I don’t.”

We find that this testimony does not attempt to show the jury appellant’s “good character and law abiding habits” (Childs v. State, Tex.Cr.App., 491 S.W.2d 907). The State is mistaken in its reliance on the “magic words” rule of Childs. While we adhere to the rule of Childs, we find it inapplicable to the facts of this case. The rule that “magic words” are not required to make a witness a character witness does not mean that every defense witness is a character witness.

The State points to the following testimony elicited on cross-examination :

“Q. Now, when you talked about Charles Els and his efforts in your behalf, I believe you said he painted a room. And what else?
“A. He helped fix some lights, he fixed my car, he would do anything I would ask him to.
“Q. Do you know his Pastor Rode?
“A. His what?
“Q. His Pastor Rode?
“A. I just met him since Joy has been going over to Charles’.
“Q. And are you familiar with their friends? I mean the friends of Charles Els and people that he associates and frequents with?
“A. Some of them.
“Q. And so, these questions that you have been answering for Defense Counsel, do you mean to say by your answers that Charles Els is a man of good character?
“A. Well, I think so.
“Q. And that is what you meant when you answered those questions of Defense Counsel?
“A. I never seen him drunk. I have saw him drink a beer, but I have never seen him drunk or anything.
“Q. So, when you were answering the questions of the Defense Lawyer — and I will have them read back to you if it is necessary — did you mean to imply that the Defendant, as far as you know, is a man of good character and reputation?
“A. I thought so, yes, sir. I still say so.
“Q. And that is what you meant when you were answering this lawyer’s questions?
“A. Yes.”

The State may test a character witness with proper “have you heard” questions, but it may not transform, by its own questions, a witness who is not a character witness into one in order to be able to ask “have you heard” questions. “Have you heard” questions should not have been permitted.

The “have you heard” questions asked by the State were these:

“Have you heard that on December 8th of 1952 the Defendant was arrested for indecently exposing his person to a female?”
“Have you heard . . . that on March 2, 1956, the Defendant was again arrested and was charged with the offense of exposing his person?”
“Have you heard that on June 30th of 1960 the Defendant was arrested and charged with the offense of carrying a pistol?”
“Have you heard that on October 4th of 1969 the Defendant was arrested pursuant to a warrant for his arrest for the offense of burglary and theft?”
“Last of all, have you heard, that on September 13th of 1960 the Defendant was convicted in the County Court here in Harris County for the offense of carrying a pistol?”

Each question was answered in the negative.

While it is true that the mere asking of an improper question will rarely constitute reversible error (see Sensabaugh v. State, Tex.Cr.App., 426 S.W.2d 224) and an answer that one has not heard of the incident inquired about will reduce the issue to one of whether the mere asking of the question is reversible error (see Wallace v. State, Tex.Cr.App., 501 S.W.2d 883), the fact remains that where improper questions in the area of cross-examination of a character witness have been asked, this Court has not hesitated to reverse solely on the basis of the improper, prejudicial question (e. g. Hurt v. State, Tex.Cr.App., 480 S.W.2d 747; Billingsley v. State, Tex.Cr. App., 473 S.W.2d 501; Webber v. State, Tex.Cr.App., 472 S.W.2d 136).

The issue in this case, however, is not whether the State used the proper form of question to test a character witness, but whether the action of the State putting the reputation of the accused in issue, when he had not put his reputation in issue, requires reversal. In Coon v. State, 117 Tex.Cr.R. 158, 35 S.W.2d 419, this Court held:

“Bill of exceptions No. 2 shows that upon the trial, and while appellant was testifying, and at a time when he had not put his general reputation in issue, the district attorney asked appellant, on cross-examination, if he did not have the reputation of being the best whisky maker in San Augustine county. The question was objected to, for the reason that his reputation had not been put in issue, and for the further reason that said question placed the defendant in the position of having to answer or object to same, either of which would prejudice him before the jury. The court overruled the exception to the question, and the bill shows that the court failed to instruct the jury not to consider the asking of such question, and that to this action of the court exception was taken. The only qualification to the bill is that the question was not answered. That such question was improper and hurtful is manifest. We cannot gauge the evil effect upon the jury of such improper question. The appellant was not given the lowest penalty. We think the cases cited in appellant’s brief authority for holding such action reversible error. Childress v. State, 92 Tex.Cr.R. 215, 241 S.W. 1029; Harrison v. State, 102 Tex.Cr.R. 385, 278 S.W. 430; Hunter v. State, 113 Tex.Cr.R. 90, 18 S.W.2d 1084.”

An even more direct statement of the harm inflicted is found in Childress v. State, 92 Tex.Cr.R. 215, 241 S.W. 1029, 1032-1033, where this Court held:

“Appellant had in no way put his reputation in issue. Upon cross-examination of the witness Elam the district attorney propounded this question:
“ ‘Do you know defendant’s reputation here, as to whether he is a law-abiding citizen, or otherwise?'
“Appellant objected to the question, and same was sustained by the court. Counsel for appellant requested the court, in the presence of the jury, to instruct the jury to disregard the question, and further to instruct them that the question was improper; but this the court refused to do. The learned trial judge qualifies the bill by stating that appellant did not submit any special charge to the court instructing the jury to disregard the question. It is our opinion that the question was such a gross violation of all rules of procedure that it should not be necessary for appellant to request the court to instruct the jury that it was improper, and to disregard the same. The court should have done so of his own motion, and should have promptly reprimanded the district attorney for asking such a question. There is no better known rule than that the reputation of the defendant cannot be inquired into by the state unless the accused himself opens up the way, and for the district attorney to propound such a question, thereby forcing the accused in the presence of the jury to interpose an objection, called for prompt action on the part of the court. As long as the law presumes an accused to be innocent, attorneys for the state ought not inject into the trial a matter which every well-informed lawyer knows is improper. Common justice to a party accused of crime suggests that he should be treated fairly upon his trial, and such proceedings as were here resorted to will not be tolerated or approved. Ordinarily when the court promptly sustains an objection to a question, and the facts indicate that it was asked in good faith, no error is presented unless the question is of such nature as to be extremely hurtful. Overstreet v. State, 68 Tex.Cr.R. 238, 150 S.W. 899, and cases therein cited. We frequently decline to reverse cases where improper questions were asked and objections were promptly sustained; but we can scarcely conceive a question which in and of itself could be more hurtful to an accused than one calling for an answer which would put in issue his general reputation. It places him in the unfortunate attitude of having to let the question pass unchallenged, thereby permitting the state to do what it plainly has no right to do, or of objecting thereto in the presence of the jury, leaving the very natural impression upon them that he feared an answer which would have been detrimental to him.”

See also Walker v. State, 146 Tex.Cr.R. 321, 174 S.W.2d 974; Elizondo v. State, 130 Tex. Cr.R. 393, 94 S.W.2d 457; Franks v. State, 125 Tex.Cr.R. 245, 68 S.W.2d 207; Watson v. State, 123 Tex.Cr.R. 360, 59 S.W.2d 126; Coon v. State, 117 Tex.Cr.R. 158, 35 S.W.2d 419.

We hold the action of the State injecting the issue of appellant’s character into the case was harmful and reversible error.

For the error cited, the judgment is reversed and the cause remanded.

ROBERTS, Judge

(dissenting).

The majority reverses this conviction because the State “injected” the issue of appellant’s character into the case.

As noted in the majority opinion the witness Stribling testified that she knew the appellant; that he visited in her home; that he helped her to do “anything I asked him to do; ” that she had never known the appellant to beat up her daughter (the deceased) or use any force or violence on the deceased; and that she had never known the appellant “to threaten to kill her or harm” the deceased.

I would hold that these statements by the witness placed her testimony within the rule of Childs v. State, 491 S.W.2d 907, 908-909 (Tex.Cr.App.1973) where this Court unanimously held that it is the entire tenor of a witness’s testimony — and not the use of “magic words” — which makes the witness a character witness. It seems clear that the witness was attempting to testify in support of the appellant’s character. Certainly her testimony in support of his character was made more forceful by the fact that she was the mother of the deceased. Clearly, the State was justified in impeaching the witness by the use of “have you heard” questions. See and compare Howard v. State, 505 S.W.2d 306, 310-311 (Tex.Cr.App.1974); Hurd v. State, 513 S.W.2d 936, 945 (Tex.Cr.App.1974), and Walker v. State, 501 S.W.2d 912, 915 (Tex.Cr.App.1973).

Moreover, since the witness answered all of the questions negatively, we should apply the rule announced in Sensabaugh v. State, 426 S.W.2d 224, 227 (Tex.Cr.App.1968) and reaffirmed in Wallace v. State, 501 S.W.2d 883, 885 (Tex.Cr.App.1973). In Sensabaugh it was held that:

“The Court of Criminal Appeals rarely reverses a conviction of crime solely because an improper question was propounded to the defendant as a witness. To cause a reversal the question must be obviously harmful to the defendant.”

In Wallace, we applied this rule to character witnesses. There, as in the instant case, there was nothing in the record which showed bad faith by the prosecutor in asking a “have you heard” question. We should hold, as we did in Wallace, that the mere asking of such questions is not sufficient to require reversal.

We should also hold that the appellant waived his right to complain of these questions. In cross-examining the witness the prosecutor developed the following testimony without objection:

“Q And so, these questions that you have been answering for Defense Counsel, do you mean to say by your answers that Charles Els is a man of good character?
“A Well, I think so.
“Q And that is what you meant when you answered those questions of Defense Counsel?
“A I never seen him drunk. I have saw him drink a beer, but I have never seen him drunk or anything.
“Q So, when you were answering the questions of the Defense Lawyer— and I will have them read back to you if it is necessary — did you mean to imply that the Defendant, as far as you know, is a man of good character and reputation ?
“A I thought so, yes, sir. I still say so. “Q And that is what you meant when you were answering this lawyer’s questions ?
“A Yes.
“Q Let me test your knowledge of his character and reputation.” (Emphasis added)

At this point appellant objected. By allowing the witness to testify without objection that her testimony was intended to signify her endorsement of the appellant’s character and reputation, the appellant waived his right to complain that the witness was not a character witness. See Mullenix v. State, 499 S.W.2d 330, 331 (Tex.Cr.App.1973); Blanco v. State, 471 S.W.2d 70, 71 (Tex.Cr.App.1971); see also Piraino v. State, 415 S.W.2d 416, 417 (Tex.Cr.App.1967); Holtzclaw v. State, 451 S.W.2d 505, 506-507 (Tex.Cr.App.1970).

Appellant also waived any error he might now urge when he took the stand and admitted the facts of each arrest upon which a “have you heard” question was based. See Ware v. State, 467 S.W.2d 256, 259 (Tex.Cr.App.1971); Cowles v. State, 510 S.W.2d 608, 610 (Tex.Cr.App.1974). I would hold that the “have you heard” questions were proper and would overrule appellant’s last six grounds of error.

Because of my disposition of these grounds of error, it seems appropriate that I discuss appellant’s remaining grounds as well.

In his first ground of error, appellant contends the trial court erred in denying his motion for new trial which alleged jury misconduct. Appellant contends that jury misconduct occurred when juror Boiler allegedly received other evidence during deliberations at the punishment stage of the trial. Appellant specifically argues that a statement was made in the jury room that if the jury could not agree on the punishment, the court would assess the maximum punishment. Appellant contends that juror Boiler relied on this information and as a result changed his vote from ten years’ probated to ten years’ confinement.

Although other allegations of jury misconduct were made in appellant’s motion for new trial, this particular allegation was not made therein. Furthermore, appellant filed a total of six motions for new trial over a period exceeding two months. Between his third and fourth amended motions for new trial, a period in excess of twenty days elapsed.

Article 40.05, Vernon’s Ann.C.C.P., governs motions for new trial. It provides in part:

“A motion for new trial shall be filed within ten days after conviction as evidenced by the verdict of the jury, and may be amended by leave of the court at any time before it is acted upon within twenty days after it is filed. Such motion shall be presented to the court within ten days after the filing of the original or amended motion, and shall be determined by the court within twenty days after the filing of the original or amended motion, but for good cause shown the time for filing or amending may be extended by the court, but shall not delay the filing of the record on appeal.” (Emphasis added)

The statute is mandatory in requiring that any original or amended motion for new trial be determined within twenty days. This clearly contrasts with the liberal statutory language granting the trial court wide discretion in allowing extensions of time for filing or amending such motions.

But this liberality clearly does not apply to the time allowed for determining motions for new trial. As Presiding Judge Woodley stated in St. Jules v. State, 438 S.W.2d 568, 570 (Tex.Cr.App.1969):

“The statute does not authorize an extension of the time in which a motion for new trial shall be determined.”

Accord: Grimes v. State, 171 Tex.Cr.R. 298, 349 S.W.2d 598 (1961); Jones v. State, 501 S.W.2d 677, 679 (Tex.Cr.App.1973).

Clearly, the third amended motion was overruled by operation of law. Jones v. State, supra. As to the amended motions filed after the third amended motion was overruled by operation of law, it necessarily follows that they were void ab initio, since they comprised an attempt to amend a motion which was no longer before the court.

Moreover, it is irrelevant that the trial court subsequently conducted a hearing and considered the issue now presented for review. Jones v. State, supra.

Nor does the holding in Guzman v. State, 521 S.W.2d 267 (Tex.Cr.App.1975), require a different result. In that case, we held (1) that the trial court could in its discretion add materials to the record after the record had been approved, and (2) that the court should then make a supplemental approval of the record.

The construction of Guzman v. State, supra, should not be so broad as to extend to the situation at bar; instead, it should be narrowly construed and limited to the facts there presented. The holding in Guzman v. State, supra, allows the trial judge limited discretion in supplementally approving the record. Such a procedure was permitted where there was no express statutory proscription. See Art. 40.09, V.A.C.C.P. However, in regard to motions for new trial, Art. 40.05, V.A.C.C.P., is explicit in providing that it “shall be determined by the court within twenty days after the filing of the original or amended motion.” As noted earlier, this had long been interpreted to mean that the motion for new trial is overruled by operation of law when not acted upon within twenty days. E. g., Jones v. State, supra, and cases there cited.

The underlying rationale in maintaining a definite time period for motions for new trial as distinguished from a supplemental approval of the record in the discretion of the trial judge is that motions for new trial are primarily directed to producing evidence that has not been developed in the trial court. This is evidenced in the special commentary following Art. 40.09, V.A.C. C.P., by now Presiding Judge Onion: This being so, it follows that a reasonable yet definite time period must be established and maintained in order to conclude the evidence and begin the appellate process. It is, indeed, an unwarranted conclusion to say that because the trial judge, in his discretion, can re-open the record and include matters which were incorporated by reference at trial, that the trial judge, in his discretion, could do that which the statute expressly denies him the authority to do, i. e., have a hearing on an amended motion for new trial after the motion is overruled by operation of law.

“It has been suggested that this procedure [the trial court’s granting a new trial after reviewing the briefs, Art. 40.-09(12)] eliminates the necessity for motions for new trial, but if motions for new trial had not been retained there would have been no hearing to produce and preserve testimony as to jury misconduct, newly discovered evidence, etc.”

The situation involved in the case at bar and the one in Guzman v. State, supra, are completely distinguishable. Our holding in Guzman v. State, supra, should not be read to include late-held hearings for motions for new trial.

Appellant’s first ground of error should be overruled.

Appellant next challenges the admission into evidence of a photograph of the deceased. This issue is foreclosed by our discussion in Martin v. State, 475 S.W.2d 265, 267 — 268 (Tex.Cr.App.1972). See also Tezeno v. State, 484 S.W.2d 374, 384-385 (Tex.Cr.App.1972). Nor is it of significance that the photograph was colored rather than black-and-white. Terry v. State, 491 S.W.2d 161, 163 (Tex.Cr.App.1973). No error is shown.

Appellant’s third ground alleges that the evidence is insufficient to show malice.

The record reflects that Houston Police Officer R. 0. Olive went to appellant’s house on the date in question in response to a call; he first encountered the appellant, who stated that the deceased, Oleta Johnson, had shot herself. Inside, Officer Olive found the body of the deceased lying on a bed.

The inculpatory portion of a voluntary statement of the appellant was introduced in evidence by the State. In it appellant admitted shooting the deceased, who was his girlfriend, after drinking and arguing with her.

The appellant took the stand and contended that the shooting was an accident. He stated that he thought the hammer would land on an empty cylinder and make a clicking sound which would frighten the deceased. He added that he did not aim at the deceased, but that she moved suddenly just as he fired. The appellant’s attorney then read to the jury the exculpatory parts of the appellant’s statements, which agreed with this version of the incident.

The appellant also stated generally that he had never threatened or beaten the deceased, and specifically that he had never threatened the life of the deceased. The testimony of several of the appellant’s witnesses also tended to show a lack of threats and physical intimidation by the appellant.

In rebuttal, the State called on Denard Campbell, who testified that the appellant had threatened to kill the deceased. He also testified that prior to her death the deceased had shown him bruises on her leg and arms which she said were the result of being beaten up by her boyfriend, Charles. The appellant took the stand and disputed the truth of these statements.

The jury has exclusive authority to judge the credibility of the witnesses and the weight to be given their testimony. Here, there was sufficient evidence to support their verdict. Compare Washington v. State, 484 S.W.2d 721, 723 (Tex.Cr.App.1972). I would overrule appellant’s third ground as well.

The judgment should be affirmed.

DOUGLAS, Judge

(dissenting).

I join in that part of the dissenting opinion by Judge Roberts which would hold that no reversible error is shown by the asking of the “have you heard” questions.

      . While the State does not rely upon the following facts, we observe that subsequent to the above testimony the appellant, on direct examination, went into the events inquired about in the “have you heard” questions. We think it apparent that this testimony was an attempt to explain the matters improperly paraded before the jury by the State’s prior inquiry, and did not waive the objection. Nicholas v. State, Tex.Cr.App., 502 S.W.2d 169, 173 et seq. See also Hurt v. State, Tex.Cr.App., 480 S.W.2d 747, 749-750. Nor can. it be said that the State’s cross-examination of appellant inquiring into the details surrounding these prior acts of appellant rendered the initial error harmless. Such further inquiry was certainly improper and the State does not contend otherwise.

      . The majority’s opinion turns on one crucially important sentence: “The State . may not transform, by its own questions, a witness who is not a character witness into one in order to be able to ask ‘have you heard’ questions.” Ante, at page 14 of the Court’s opinion. This sweeping legal principle is made without the support of any legal authority whatsoever.

      . Accordingly, we have frequently held that where such motions are not acted upon or amended within that twenty day period, they are overruled by operation of law. E. g., Chappell v. State, 519 S.W.2d 452, 453 (Tex.Cr.App.1974).

      . To the extent that it is inconsistent with this opinion and the cases cited, the holding in Atkinson v. State, 164 Tex.Cr.R. 421, 299 S.W.2d 951 (1957), should be overruled.