author: DALLY, Commissioner.

text:
    Fred RIVERA, Appellant, v. The STATE of Texas, Appellee.
    No. 50532.
    Court of Criminal Appeals of Texas.
    Nov. 12, 1975.
    Rehearing Denied Dec. 10, 1975.
    Robert G. Chappell, Abilene, for appellant.
    Frank Ginzel, Dist. Atty., Colorado City, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

The appellant appeals from his conviction for knowingly permitting a roulette wheel used for gaming purposes to remain in his possession and on premises under his control; a jury assessed the appellant’s punishment at confinement in the county jail for 365 days.

The appellant’s only complaint is of the court’s instruction to the jury. The appellant was indicted for keeping and exhibiting for the purpose of gaming a roulette wheel; he was convicted for committing, on December 8, 1973, the lesser included offense, a violation of Art. 630, V.A.P.C. Included in the court’s charge was an instruction on the lesser included offense; the court in Paragraph V instructed the jury as follows:

“You are further instructed that if you find and believe from the evidence beyond a reasonable doubt that the defendant knowingly permitted a gaming roulette wheel to remain in his possession and on premises under his control, and to be used for gaming purposes, and you have a reasonable doubt that the defendant was at the time and place in question the keeper of such roulette wheel as that term is defined herein, then you will find the defendant guilty of knowingly permitting a gaming roulette wheel to remain in his possession and under his control, and to be used for gaming purposes.”

The appellant made a timely objection to Paragraph V of the court’s charge on the ground that it failed to apply the law to the facts of the case. This was the only objection made to the quoted charge.

The only charge given concerning the lesser included offense was the one quoted; an abstract charge on the law as provided by Art. 630, V.A.P.C. was not submitted to the jury. The charge submitted did, in fact, apply the law to the facts of the case, and the charge is not vulnerable to the objection made by the appellant. The charge submitted was adequate.

“Instructions applying the law to a particular theory are customarily framed so that they will set forth a hypothetical statement which specifically enumerates each of the evidence-supported ultimate facts essential to the establishment of the theory. Instructions thus framed will accomplish a submission of the issues of the theory even if there be absent from the charge any discussion of applicable abstract law.” Bowmer, Jones, and Miller, The Charge In Criminal Cases, XII Baylor L.Rev. 261, 270 (1960)

See also, Mangan v. State, 168 Tex.Cr.R. 265, 324 S.W.2d 849 (1959); Covarrubias v. State, 169 Tex.Cr.R. 288, 334 S.W.2d 187 (1960); Wheat v. State, 442 S.W.2d 363 (Tex.Cr.App.1969).

The judgment is affirmed.

Opinion approved by the Court.

DOUGLAS, J., not participating.


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    Thomas Patrick McSHANE, Appellant, v. The STATE of Texas, Appellee. David Wade STEVENS, Appellant, v. The STATE of Texas, Appellee. Michael Lee FOOTE, Appellant, v. The STATE of Texas, Appellee.
    Nos. 50371 to 50373.
    Court of Criminal Appeals of Texas.
    Nov. 26, 1975.
    Rehearing Denied Dec. 19, 1975.

      O. T. Moore, Jr., Lockhart, for appellants.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellants were each convicted of possession of over four ounces of marihuana. Punishment was assessed at five years each, which was probated, and a fine of $1,500.00 each.

In two grounds of error, appellants complain of the failure of the trial court to charge the jury on the lesser included offense of possession of less than two ounces of marihuana and of its failure to charge that mere presence at the scene of a crime is insufficient to support a conviction for possession of marihuana.

The record reflects that on February 9, 1975, appellants were present at Mark Co-ble’s trailer house in Uhland in Caldwell County. Also present were Mike Ratliff and Texas Department of Public Safety undercover narcotics agent Brantly Foster. Foster testified that Coble arrived with a large quantity of marihuana which appellants and the others present proceeded to handle, examine and separate for the purpose of selling three pounds to each appellant. He also testified that prior to Coble’s arrival with the marihuana appellants and the others present smoked two marihuana cigarettes.

Each appellant testified, and each denied that they handled, possessed, or purchased any of the large quantity of marihuana brought to the trailer house by Coble. Each also testified that while they were waiting for the return of Coble, whom they had come to visit, one marihuana cigarette was passed among the five present and smoked by them. It will be seen, then, that the version of the facts testified to by each appellant constituted a denial of guilt for possession of the large quantity of marihuana brought in by Coble and an assertion that they were merely present at Coble’s commission of the possession of in excess of four ounces. Each also admitted possession of a quantity of marihuana less than two ounces, in the form of the marihuana cigarette smoked by Foster, Ratliff, and themselves.

The testimony of each appellant raised the defensive theory of mere presence at the scene of a crime. See e. g. Woolridge v. State, Tex.Cr.App., 514 S.W.2d 257, and cases cited there, for the proposition that mere presence of the accused at a place where contraband is found does not of itself show possession. Appellants were entitled to a charge on this defensive issue and the failure of the court to so charge upon the proper and timely request was error. However, in view of the error discussed below, we need not determine whether this error was reversible on the facts of this case. Cf. Dabbs v. State, Tex.Cr.App., 507 S.W.2d 567; Gonzales v. State, Tex.Cr.App., 466 S.W.2d 772.

The testimony of each appellant also denied guilt of the offense charged but admitted guilt of the lesser included offense of possession of less than two ounces of marihuana. The failure of the trial court to grant their timely request for a charge on the lesser included offense constituted reversible error. Compare, e. g., Esparza v. State, Tex.Cr.App., 520 S.W.2d 891; Matheson v. State, Tex.Cr.App., 508 S.W.2d 77.

The judgments are reversed and the causes remanded.

DOUGLAS, J., not participating.


author: ROBERTS, Judge.

text:
    David Ray STUTES, Appellant, v. The STATE of Texas, Appellee.
    No. 50158.
    Court of Criminal Appeals of Texas.
    Dec. 3, 1975.

      Paul W. Jones, Jr., Austin, on appeal only for appellant.
    Robert 0. Smith, Dist. Atty., David A. Sheppard, Asst. Dist. Atty., Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for robbery by firearms. Appellant was tried before a jury and received a sentence of fifteen (15) years’ imprisonment. The offense took place on August 8,1973 and trial began on November 12, 1973.

The evidence showed that appellant robbed Charles Schreiber, assistant manager of the Safeway Food Store at 5335 Airport in Austin at gun point on August 8, 1973. Another employee of the store, Don Ellis, followed the gunman and a companion to the parking lot where they got into a late-model pickup truck and sped away. A third employee, Rodney Felfe, noticed the two robbers loitering in the store prior to the robbery and was able to follow them in his car as they drove east out of town.

Just west of McDade the pickup stopped, blocking the road. Felfe stopped behind the pickup and his engine died. The two robbers got out of the pickup truck and walked toward Felfe’s car, returned to the truck, and rammed it into Felfe’s car, disabling it. The truck then continued in the direction of Houston.

Appellant’s companion was identified as Larry McKay, in whose possession the pickup truck was subsequently found. McKay was tried jointly with appellant, received a ten (10) year sentence, but apparently declined to appeal.

William Ewing testified as an alibi witness for both defendants. But the witness Schreiber recognized him as being the third man involved in the robbery and he was arrested outside the courtroom during the course of the trial.

Appellant’s first ground of error concerns the trial court’s failure to sustain his objection to questions concerning his prior arrests. During his cross-examination of appellant, the prosecutor asked the following questions:

“Q Where were you on the 19th of July, approximately 9:25 p. m., 1973?
“MR. BAIRD: Your Honor, I object to that as being immaterial to this case here.
“THE COURT: Overrule the objection.
“Q Do you remember where you were?
“A I don’t remember where I was, no.
“Q Do you remember who you were with on that occasion?
“A Yes, sir. Yes, I remember who I was with. I was right off of Bowman Street. We had taken a motorcycle back to a kid’s house, and it got stolen, and we found it and took it back for him.
“Q Why do you remember that as being the 19th day of July?
“A Because they picked us up right after we brought it back.
“Q What did they pick you up for?
“A Stolen motorcycle.
“Q Picked you up for stealing it?
“A No, sir. Well, they picked us up and charged us, but dropped it because we didn’t steal it.
“Q I see. Do you remember where you were and who you were with on the 18th of July, 1973, approximately 9:50 p. m.?
“A I don’t know about the times, but I know the people I was with that night before I got picked up.
“Q You got picked up on that night, too?
“A I don’t know. I don’t know what day that was. I got picked up one time, sometime right at the last of July.
“Q Now, you testified you got picked up on the 19th. That was a Thursday, according to that calendar over there on the wall.
Now, on the 18th of July at approximately 9:50 p. m., where were you?
“A I was in jail, if that was the day I got picked up.
Q Well, you didn’t get picked up both on the 18th and 19th, did you?
“A I got picked up right there at the last of July one day, and then I got put in jail.
“Q So you were somewhat confused about those days. Is that right?
“A That is right. I don’t know what day I got picked up. It was the last of July.
“Q Do you remember where you were and who you were with at approximately 8:55 p. m. on the 15th of June, 1973?
“A No, sir.”

The prosecutor’s questions were designed to impeach appellant with clearly inadmissible prior arrests, none of which was ever shown to have resulted in a final conviction. As appellant contends, a more obvious violation of Art. 38.29, V.A.C.C.P. would be hard to imagine.

However, appellant objected only once; and then to a question about his whereabouts' on a certain day. Neither the question nor the objection, which was too general, Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974), was sufficient to apprise the trial judge of the forthcoming inadmissible testimony. It was not until three or four questions later that appellant’s arrest came out. His objection was therefore untimely. Ward v. State, 522 S.W.2d 228 (Tex.Cr.App.1975). This ground of error must be overruled.

Appellant next contends that the court erred in admitting Sgt. Robert Napier’s testimony concerning statements made to him by the witness Ewing after his arrest. It will be remembered that Ewing testified as an alibi witness for both defendants, and then was arrested outside the courtroom after his testimony. As he was being booked on the robbery charge by Sgt. Napier, he allegedly stated that his earlier alibi testimony had been untrue and that the defendants or the attorneys had set him up. He was then recalled to the stand by the State and, after momentarily claiming his Fifth Amendment privilege, testified that he stood by his earlier alibi testimony. It was at this time that the State offered Napier to impeach Ewing.

Both parties seem to be in agreement that Napier’s testimony was hearsay, although appellant’s objection did not urge this ground. It is noted, however, that Napier’s testimony fitted the exception to the hearsay rule for declarations against interest.

At the outset, we must determine if appellant’s objection to Napier’s testimony was sufficient to preserve the alleged error. The record shows that when Napier was asked about Ewing’s extra-judicial statements, appellant’s counsel stated, “Your Honor, I am going to object to any testimony, because he was under arrest at the time. That would be immaterial.” The objection on the grounds of immateriality was clearly not well taken, since appellant himself admits that Napier’s testimony practically scuttled his entire alibi defense. The objection on the grounds that appellant was under arrest has specifically been held sufficient to preserve for review the question of the admissibility of such statements. Korb v. State, 402 S.W.2d 166 (Tex.Cr.App.1966). The objection in the instant case was sufficient to apprise the trial court of the ground urged — that Ewing’s statement was an inadmissible confession under Art. 38.22, Y.A.C.C.P. There can be no other reasonable interpretation of appellant’s objection.

It has been suggested that Napier’s account of Ewing’s statement might run afoul of the proscriptions of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). That case prohibited the introduction of one defendant’s confession which implicated a co-defendant in the case when both were being tried jointly. Whatever the merits of the Bruton question, it is apparent that appellant’s trial objection did not preserve it for review. Bruton was based on the Sixth Amendment right to confrontation while appellant’s objection, referring to the statement he made while under arrest, invoked Art. 38.22 and his Fifth Amendment right against self-incrimination.

Having concluded that appellant’s complaint based on Art. 38.22 is before us for review, we must first determine if Ewing’s alleged extrajudicial statement amounted to a confession for purposes of the confession statute. In Easley v. State, 493 S.W.2d 199 (Tex.Cr.App.1973), this Court wrote:

“[W]e adhere to a high standard in holding that admissions of an accused made while in custody must (emphasis in opinion) satisfy the rule as to confessions in order to be admissible. Garner v. State, 464 S.W.2d 111 (Tex.Cr.App.1971). This Court, in construing our confession statutes, has further excluded any act tantamount to or in the nature of a confession and any unwarned statement even though it lacks the essential elements of a confession.”

Although Ewing’s alleged statement made no mention of the robbery for which he was then under arrest, it was a clear admission that he had just committed perjury on the witness stand. It therefore had sufficient incriminating and inculpatory content to come within the ambit of Art. 38.22, V.A.C. C.P. See Butler v. State, 493 S.W.2d 190 (Tex.Cr.App.1973); Martinez v. State, 498 S.W.2d 938 (Tex.Cr.App.1973) (concurring opinion); Beam v. State, 500 S.W.2d 802 (Tex.Cr.App.1973); Smith v. State, 514 S.W.2d 749 (Tex.Cr.App.1974).

It is true that a confession of guilt can only be used against the person making the confession and is inadmissible against others under the hearsay rule. Lewis v. State, 521 S.W.2d 609 (Tex.Cr.App.1975); Carey v. State, 455 S.W.2d 217 (Tex.Cr.App.1970). Ewing’s admission in this case, however, was not admitted to implicate appellant and did not do so; rather it was admitted to impeach Ewing. Art. 38.22, V.A.C. C.P. need not be complied with in order to introduce a confession against a witness for impeachment purposes, Castillo v. State, 421 S.W.2d 112 (Tex.Cr.App.1967), even though the same confession might be inadmissible to impeach the same witness at his own trial. Butler v. State, supra; Martinez v. State, supra; cf. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). We hold that Castillo controls even though it did not appear that the witness there was a co-defendant, or a potential co-defendant, of the appellant in that case. That fact would raise Bruton problems not preserved in this appeal. The State correctly concludes in its brief, “In short, Art. 38.22 would be available to Ewing, at his trial, but the statute’s protection is simply not available to appellant.”

Therefore, the court did not err in permitting Napier to testify as to Ewing’s alleged statement. Appellant’s second ground of error is overruled.

In his third and fourth grounds of error, appellant claims the court fell into fundamental error by failing to exclude the testimony of certain witnesses about appellant’s membership in a motorcycle gang called the Deadmen’s Club and about the criminal record of Russell Eason, a companion of appellant. Appellant made no objection to any of the complained of testimony at trial; thus nothing is presented for review. Johnson v. State, Tex.Cr.App., 525 S.W.2d 170 (1975); Wood v. State, 511 S.W.2d 37 (Tex.Cr.App.1974). Nor do we think the testimony was of such a prejudicial nature as to constitute fundamental error.

Appellant next urges the cumulative effect of the foregoing alleged errors. Besides finding no error that can be cumulat-ed in this record, we note this ground of error is not in compliance with Art. 40.09, Sec. 9, V.A.C.C.P. Moulton v. State, 486 S.W.2d 334 (Tex.Cr.App.1972).

Appellant lastly contends that he was denied the effective assistance of counsel at his trial. Appellant’s trial counsel was retained, and he argues that this Court should abolish the distinction in the standard of effectiveness for retained and appointed counsel. See Kennedy v. United States, 259 F.2d 883 (5th Cir. 1958) and Guerrero v. State, 487 S.W.2d 729 (Tex.Cr.App.1972) on retained counsel; MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960), cert. den. 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961) and Ex Parte Gallegos, 511 S.W.2d 510 (Tex.Cr.App.1974) on appointed counsel. Appellant also suggests that counsel’s representation of both appellant and his co-defendant McKay gave rise to a conflict of interest resulting in ineffective assistance of counsel. See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

It is true that where an appointed counsel has an actual conflict of interest a defendant is denied his right to effective representation without a showing of specific prejudice. Castillo v. Estelle, 504 F.2d 1243 (5th Cir. 1974). But where counsel is retained, there is no ineffectiveness on such grounds unless the attorney’s representation was fettered or restrained by his commitments to others, and such commitments were unknown to the defendant. Randazzo v. United States, 339 F.2d 79 (5th Cir. 1964). In the case at bar, we have neither an actual conflict of interest nor an appellant ignorant of any potential conflict of interest. Nor is appellant’s showing of prejudice very convincing. The fact that McKay got ten (10) years and appellant fifteen (15) could be attributable to the fact that it was appellant who wielded the weapon and told Schreiber, “I mean it. I’ll blow you open.” And the failure of counsel to examine appellant as long as he did McKay was obviously because appellant testified second, corroborating McKay’s prior testimony. There was no need to reiterate the alibi defense which was common to both defendants. There is no indication in this record of any conflict of interest between McKay and appellant.

The issue of which standard for effectiveness of counsel should be applied is squarely joined by the parties in their briefs. However, we need not reach that issue since appellant’s counsel was not ineffective by even the stricter standards applicable to appointed counsel. We decline to take up each instance of ineffectiveness alleged in appellant’s brief, since the quality of representation is to be judged by the “totality of the representation.” Williams v. State, 513 S.W.2d 54 (Tex.Cr.App.1974); Lee v. State, 505 S.W.2d 816 (Tex.Cr.App.1974). The record shows that appellant’s attorney played an active role in the defense of his client. He cross-examined all of the State’s witnesses extensively; he put on six witnesses of his own to establish the defense of alibi; and he called numerous other witnesses at the guilt-innocence and punishment stages. We conclude that, under either standard, appellant was not denied the effective assistance of counsel.

Appellant’s grounds of error are overruled and the judgment is affirmed.

ONION, P. J., and MORRISON, J., concur in affirmance of this conviction.

      . Under the terms of Art. 40.09, Sec. 10, V.A.C.C.P., the State’s brief was due on November 22, 1974. However, no request for an extension of time for filing said brief was made until February 7, 1975, at which time the trial court gave the State until February 28, 1975. The State did nothing else until March 21, 1975 when it requested and received another retroactive extension of time until March 21, 1975 for filing its brief. The State’s brief was then filed on March 21, 1975. The majority does not agree, but I believe that unless these extensions of time are given retroactive effect the State’s brief is not before us for review. See Coleman v. State, 530 S.W.2d 823 (1975). Since extensions of time for filing appellant’s briefs have been given retroactive effect in Bradley v. State, 414 S.W.2d 673 (Tex.Cr.App.1967), I would accord the same treatment to the State in the interest of even-handed justice under law and consider its brief on appeal.


author: DOUGLAS, Judge.

text:
    Henry MOORE, Appellant, v. The STATE of Texas, Appellee.
    No. 51185.
    Court of Criminal Appeals of Texas.
    Dec. 3, 1975.
    John T. Boyce, Dallas, for appellant.
    Henry Wade, Dist. Atty., and W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction of aggravated assault. Punishment was assessed at thirty days and a fine of $500.00.

The information alleges that appellant committed the offense of aggravated assault on Leonard W. Stout on January 14, 1972. The information also alleges that appellant was a person of “robust health and strength” and that Leonard W. Stout was “an aged and decrepit person.” The record does not contain the trial testimony. The sufficiency of the evidence is not challenged.

Appellant contends that the trial court erred in refusing to dismiss the information pursuant to Section 6(b), Savings Provision of the new penal code. Section 6(b) provides:

“(b) Conduct constituting an offense under existing law that is repealed by this Act and that does not constitute an offense under this Act may not be prosecuted after the effective date of this Act. If, on the effective date of this Act, a criminal action is pending for conduct that was an offense under the laws repealed by this Act and that does not constitute an offense under this Act, the action is dismissed on the effective date of this Act. However, a conviction existing on the effective date of this Act for conduct constituting an offense under laws repealed by this Act is valid and unaffected by this Act. For purposes of this section, ‘conviction’ means a finding of guilt in a court of competent jurisdiction, and it is of no consequence that the conviction is not final.”

The conduct proscribed by Article 1147, Section 4, Y.A.P.C. (1925), also constitutes an offense under the assault section of the new penal code. Appellant’s contention is overruled. See Rockwood v. State, 524 S.W.2d 292 (Tex.Cr.App.1975); Wright v. State, 527 S.W.2d 859 (Tex.Cr.App.1975); Dockery v. State, (No. 49,982, September 23, 1975); Pesch v. State, 524 S.W.2d 299 (Tex.Cr.App.1975).

Appellant also contends that he should have been punished pursuant to V.T. C.A., Penal Code, Section 22.01(a)(2), or (a)(3), since the information did not allege “bodily injury.”

He elected to be punished under the new code. The trial court assessed punishment at $500.00 fine and thirty days. The punishment was within the range provided by V.T.C.A., Penal Code, Section 22.01(a)(1). A similar question was presented in Casey v. State, 527 S.W.2d 882 (Tex.Cr.App.1975). This Court wrote:

“There is no question that the conduct alleged constituted an offense under the new code. See Rockwood v. State, 524 S.W.2d 292 (Tex.Cr.App.1975). So, the issue concerns the determination of what punishment to apply where the conduct possibly constitutes more than one offense as defined by the new code and those offenses have differing ranges of punishment.
“From the proof adduced during the guilt and punishment stages of the trial, the judge determines the applicable section, or sections (with appropriate instructions if the proof requires giving the jury a choice) of the new code and so charges the jury. By his election to be punished under the new code, a defendant agrees to such a method. The question then is whether the proof substantiates the judge’s determination. Ambers v. State, 527 S.W.2d 855 (Tex.Cr.App.1975). See Wright v. State, 527 S.W.2d 859 (Tex.Cr.App.1975), and Jones v. State, 502 S.W.2d 771 (Tex.Cr.App.1973).”

In the instant case the judge was required to review the evidence and assess punishment under the applicable section of the new penal code. The judgment recites that appellant “intentionally caused bodily injury to Leonard W. Stout.” Absent a statement of facts or a transcription of the court reporter’s notes, we must accept the statement in the judgment as true.

No error is shown. The judgment is affirmed.

ODOM, J., concurs in the result.


author: MORRISON, Judge.

text:
    Larry Wayne SKIDMORE, Appellant, v. The STATE of Texas, Appellee.
    No. 50609.
    Court of Criminal Appeals of Texas.
    Dec. 10, 1975.

      Dick Stengel, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., William J. Ellis, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is murder under V.T.C.A. Penal Code, Section 19.02; the punishment, 30 years.

By ground of error one, appellant contends that the court erred in refusing to suppress the appellant’s oral and written confessions. He contends that his arrest was illegal, that he was not properly warned, and that he was never taken before a magistrate prior to the taking of such confessions.

Appellant and his companion Dowdy were arrested in Los Angeles, California, upon information that they were using a credit card and were in possession of one automobile belonging to a person described in a missing persons report from El Paso. Appellant asked that he and Dowdy be questioned together, and they jointly told the officers that they had met a man named Wilburn in a bar in El Paso and that he had agreed to drive them north of the city to a carnival where they were working. On the way to the carnival, Wilburn drove to a secluded spot where he was relieved of his wallet and Dowdy pushed him off a cliff. Appellant and Dowdy then drove Wilburn’s automobile to Los Angeles where they were arrested.

A pretrial hearing on the voluntariness of appellant’s confessions showed that appellant was arrested around 10:30 a. m. on May 1, 1974. Over the following 33 hours, appellant was questioned by two California police officers for a period of not more than two and one-half hours. Appellant orally confessed on the afternoon of May 1, and his statements were reduced to writing the following day. Prior to making the oral statements and signing the written statement, appellant was warned in compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

At the conclusion of the lengthy suppression hearing the trial court entered Jackson v. Denno findings and conclusions that the written and oral confessions were freely and voluntarily given. At the trial the issue of the written confession and the oral statements was submitted to the jury with proper instructions.

The evidence supports the conclusion that the Los Angeles Police had probable cause to arrest the appellant and Dowdy, based upon the information they had as to the stolen automobile and forgery by use of the credit card. Appellant was given a full Miranda warning by the interrogating officers and signed a waiver of his rights. Mi randa v. Arizona, supra, does not require that the warning be given by a magistrate. Winegarner v. State, Tex.Cr.App., 505 S.W.2d 303; Enriquez v. State, Tex.Cr.App., 501 S.W.2d 117. This ground of error is overruled.

By ground of error two, appellant contends that the court erred in declining to give his requested instruction on exculpatory statements. Appellant’s brief does not inform this Court as to where in the record we may find such statements or what they were. We shall assume that he had reference to the statement found in his confession:

“On the way to the carnival Wilburn said he wanted to go with us (have sex). Wilburn directed to the hills. We decided to take the dudes wallet. I wanted to take off and leave him. James [Dowdy] pushed him over the cliff, I didn’t touch him (Wilburn). We just said give us your wallet and he gave it up, I told him just give me your wallet, it was both of our idea (to take the wallet).
James came around to the right side of the car and pushed Wilburn over the cliff, I was standing four feet away then, James was angry because Wilburn had been feeling his leg.”

The question before this Court is whether the charge gave the jury instructions which had the same effect in law as the charge which was requested. In Mitchell v. State, Tex.Cr.App., 517 S.W.2d 282, at page 286, we said:

“It is well established that special requested charges may be properly refused where the instructions given by the court are adequate and fully protect the accused as to the matters included in the requested charges.”

The requested charge would have told the jury that the State had the burden of disproving the statements set forth above; i. e., that the appellant had no intention of killing Wilburn and that the death resulted from the independent act of Dowdy.

The court instructed the jury in Paragraph 29:

“If James Dowdy pushed, shoved, or threw Clinton A. Wilburn over an embankment on the occasion in question, if he did, because of rage or resentment arising out of homosexual advances made by Clinton A. Wilburn, if any, and not in furtherance of committing or attempting to commit the offense of robbery, as that term has been defined, of Clinton A. Wilburn, or in furtherance of immediate flight from such commission or attempt to commit, then Defendant Larry Skid-more is not guilty as charged; and if you have a reasonable doubt as to this issue, you must give Defendant Larry Skidmore the benefit of such doubt and find him not guilty.”

This was an application of the facts as the appellant would have had the jury believe them and adequately submitted the case from his standpoint.

Ground of error three is that the court erred in declining to grant appellant’s requested charge on independent impulse. We have concluded that Paragraph 29 quoted above adequately submitted appellant’s defensive theory.

Ground of error four is that the court erred in declining to give his third requested charge on criminal responsibility. The requested charge would have told the jury that if the defendant did not solicit, encourage, direct, aid, or attempt to aid the commission of the murder, they must find the defendant not guilty.

In Randolph v. State, Tex.Cr.App., 493 S.W.2d 869, we said a charge should have been given that the accused did not intend to join his co-indictee in robbing the injured party. However, failure to give the charge was not error where the jury was instructed that in order to convict they must find accused and his co-indictee were acting together in the robbery.

In the case at bar the court instructed the jury on criminal responsibility as set forth in Y.T.C.A. Penal Code, Section 7.02(b). The pertinent paragraphs of the charge are as follows:

“A person is criminally responsible for an offense commiied by the conduct of another if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in the furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy. Mere presence at the scene of the crime is not sufficient, however, to establish responsibility.
In a prosecution in which a defendant’s criminal responsibility is based on the conduct of another, such defendant may be convicted on proof of commission of the offense and that he was a party to its commission, and it is no defense that the person for whose conduct such defendant is criminally responsible has been convicted of a different offense.
A person commits criminal conspiracy if, with the intent that a felony be committed:
(1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and
(2) he or one or more of them performs an overt act in pursuance of the agreement.
An agreement constituting a conspiracy may be inferred from acts of the parties.
Bearing these instructions and charges in mind:
If you believe and find from the evidence beyond a reasonable doubt that on or about the 28th day of April, 1974, in El Paso County, Texas, in the act of committing or attempting to commit a felony, to-wit, robbery, as that term has been heretofore defined, and in the course and in the furtherance of such commission or attempted commission, if any, or in furtherance of immediate flight from any such commission or attempt to commit, James Dowdy intentionally and knowingly caused the death of Clinton W. Wilburn by the act of pushing, shoving, or throwing him over an embankment, and you further believe and find from the evidence beyond a reasonable doubt that at the time of such act by James Dowdy, if any, Defendant Larry Skidmore was in fact engaged with the same James Dowdy in a conspiracy, as that term has been heretofore defined, to commit such offense of robbery, and further, that such an act of James Dowdy causing the death of Clinton A. Wilburn, if any, was one that should have been anticipated as a result of the carrying out of the conspiracy, then you will find the Defendant Larry Skidmore guilty of murder.
Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the Defendant of murder under the terms of the preceding paragraph and find him not guilty, unless you find him guilty under the terms of Paragraph 26.
If you believe and find from the evidence beyond a reasonable doubt that on or about the 28th day of April, 1974, in El Paso County, Texas, in the act of committing or attempting to commit a felony, to-wit, robbery, as that term has been heretofore defined, and in the course of and in the furtherance of such commission or attempted commission, if any, or in the immediate flight from any such commission or attempt to commit, James Dowdy caused the death of Clinton A. Wilburn by the act of pushing, shoving, or throwing the said Clinton A. Wilburn over an embankment, and that such act by James Dowdy, if any, was clearly dangerous to human life, and you further believe and find from the evidence beyond a reasonable doubt, that at the time of such act by James Dowdy, if any, Defendant Larry Skidmore was in fact engaged with the said James Dowdy in a conspiracy, as that term has heretofore been defined, to commit such offense of robbery, and that such act, causing the death of Clinton A. Wilburn, if any, was one that should have been anticipated as a result of the carrying out of the conspiracy, then you will find Defendant Larry Skidmore guilty of murder.
Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the Defendant of murder under the terms of the preceding paragraph and find him not guilty, unless you have found him guilty under the terms of Paragraph 24.
If there was no conspiracy between James Dowdy and Defendant Larry Skid-more to commit robbery, as that term has been defined, of Clinton Wilburn, then Defendant Larry Skidmore is not guilty as charged; and if you have a reasonable doubt as to this issue, you must give the Defendant Larry Skidmore the benefit of such doubt and find him not guilty.
Unless you find from the evidence beyond a reasonable doubt that the death of Clinton A. Wilburn, if any, was caused by his having been pushed, shoved, or thrown over an embankment, or if you have a reasonable doubt, thereof, you will find the Defendant not guilty. In connection with the term ‘caused’ you are instructed as follows: A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was
clearly sufficient to produce the result and the conduct of the actor clearly insufficient.”

These paragraphs, when coupled with Paragraph 29, quoted above, adequately defined criminal responsibility as applied to the facts in this case.

By ground of error five, appellant challenges the sufficiency of the evidence to support the conviction. He contends that the evidence does not show he was a party to the offense of murder. Excluding the exculpatory statements contained in the confession, the State’s case was sufficient to make out a prima facie case of guilt for murder. The appellant did not testify or offer any evidence in his own behalf which would add to the prima facie case. His sole defense was that Dowdy committed the murder on independent impulse because of alleged homosexual advances by the deceased. This defensive theory was adequately covered by Paragraph 29 of the court’s charge previously quoted.

From their verdict, it is apparent that the jury disbelieved the exculpatory portions of appellant’s confession and believed only those portions of the confession which made out a prima facie case of felony murder.

We find the evidence sufficient to support the conviction.

Ground of error six alleges the evidence is insufficient to prove the elements of robbery under V.T.C.A. Penal Code, Section 29.02. Such a finding is not necessary in order to sustain the conviction because the case was submitted to the jury as being a conspiracy to commit robbery which resulted in a murder. All the elements of a completed offense need not be proven in a conspiracy case. We further observe that Officer Risen testified that appellant told the officer that he and Dowdy had told Wilburn “to give them the wallet or they (he and Dowdy) would take it. So he gave it to them.”

Ground of error seven complains of the shuffling of the jury panel. The only evidence in support of such complaint is the statement by the court to the jury that such had occurred. No objection was made to the action of the court at the time. A motion for mistrial made during the trial will not suffice to preserve the error, if any.

Ground of error eight contends that the testimony was not sufficient to show the cause of death as alleged in the indictment. The indictment alleged that death was caused “by pushing, shoving and throwing him over an embankment.” The medical expert was shown a picture of the corpse at the bottom of an embankment and stated that in his opinion death occurred “due to a fall [during which] his head impacted with a certain amount of speed, enough to render a person unconscious, until he couldn’t help himself and that with the head on the ground he would be unable to breathe and asphyxiated.” We conclude there is no variance between the cause of death as alleged in the indictment and as shown by the evidence, including appellant’s confession in which it was recited that Dowdy pushed the deceased over the embankment.

By his last ground of error appellant contends the court erred in admitting evidence of the use of Wilburn’s credit card by the appellant and Dowdy in Los Angeles. He asserts that this constituted proof of an extraneous offense. Fruits of the same crime are admissible and do not constitute an extraneous offense. Atkins v. State, Tex.Cr.App., 515 S.W.2d 904; Cooper v. State, Tex.Cr.App., 509 S.W.2d 865; Williams v. State, 170 Tex.Cr.R. 595, 343 S.W.2d 263.

Finding no reversible error, the judgment is affirmed.

      . The record reflects appellant did not testify at this hearing or at the trial.

      . Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1963).

      . Section 7.02(b) reads: “If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.”


author: GREEN, Commissioner.

text:
    David Lee JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 50675.
    Court of Criminal Appeals of Texas.
    Dec. 10, 1975.
    Michael A. McDougal, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky and Richard Worthy, Asst. Dist. Attys., Dallas, Jim D. Yollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of burglary of a building with intent to commit theft. See Y.T.C.A. Penal Code Sec. 30.02. Punishment was assessed by the court at twelve years.

In his only ground of error, appellant complains of the refusal of the court, over objection, to include in his charge to the jury at the guilt stage instructions on the law of circumstantial evidence. We find such refusal to be prejudicial error, and reverse the judgment.

The record reflects that at sometime between 6:00 p. m. and 10:00 p. m. on March 28,1974, the service station of Carl Jones in Dallas was burglarized, and thirty cartons of cigarettes were stolen. The building had been locked by employee Greg Robbins between 5:00 and 6:00 p. m., and the fact of the burglary was discovered by Police Officer Knighten sometime between 10:00 p. m. and 11:00 p. m. Knighten, while on patrol, noticed that a window had been removed from the street side of the building. A piece of window glass constituting about ¾ of the window pane, identified as a part of the window of the building, was found along an adjacent sidewalk behind a “dumpster.” Greg Robbins testified that the window had been in its proper place and condition when he locked the building that afternoon, and owner Jones testified that on that same day he had thoroughly cleaned the inside portion of the glass with a special cleanser prepared by his company.

Appellant did not testify, and placed no witnesses on the stand. There is no evidence as to his having been in the vicinity of the service station on the day of the burglary, and he was not in anyway shown to have had possession of or any connection with the stolen property. No admissions of his are in evidence. The only evidence connecting appellant with this burglary were six of his fingerprints found on the piece of window glass which was lying behind the dumpster as above stated. Expert testimony was introduced to show that these fingerprints were on the side of the glass which would have been on the inside of the building. Jones testified that on at least one occasion, several days before this burglary occurred, appellant had been in the station to buy cigarettes, but that the window had been wiped and cleaned several times thereafter.

In Reed v. State, Tex.Cr.App., 516 S.W.2d 680 at p. 683, we quoted with approval from Hearn v. State, Tex.Cr.App., 483 S.W.2d 461, an excerpt from Grice v. State, 142 Tex.Cr.R. 4, 151 S.W.2d 211 as follows:

“ ‘ “Our investigation leads us to conclude that where the evidence, as here, shows the fingerprint found at the scene of the crime was left there by the criminal at the time the crime was committed, thereby excluding the hypothesis that it might have been placed there innocently prior to or subsequent to the commission of the crime, and the evidence further shows that said print is identical with known prints of accused, that such evidence satisfied the law and excludes every reasonably hypothesis save guilt of the accused.” ’ ”

Following that quotation, in speaking of the factual situation in the case, we said in Reed:

“The evidence establishes that the fingerprints of appellant found on the stolen television set and especially the prints on the vase inside the house must have necessarily been made at the time of the burglary. Under the circumstances, a charge on circumstantial evidence was not required. Hearn v. State, supra; Galvan v. State, Tex.Cr.App., 461 S.W.2d 396. Cf. Eiland v. State, Tex.Cr.App., 509 S.W.2d 596; Dues v. State, Tex.Cr.App., 456 S.W.2d 116.”

In the instant case, the evidence shows that the offense occurred between the hours of 6:00 p. m. and 10:00 or 11:00 p. m. The piece of glass on which appellant’s fingerprints were located was found in the street close to the service station, where so far as the record reflects it may have lain for several hours before being found by the officer. The record fails to establish that the prints were necessarily made by the burglar at the time of the burglary. See Dues v. State, supra.

Under the facts of this case, a charge on circumstantial evidence should have been given. In failing to so charge, after writ-ien request had been timely made, the court committed reversible error. Casey v. State, Tex.Cr.App., 523 S.W.2d 658; Powell v. State, Tex.Cr.App., 494 S.W.2d 575.

The judgment is reversed, and the cause is remanded.

Opinion approved by the Court.


author: ROBINSON, Justice.

text:
    The CITY OF AMARILLO et al., Appellants, v. PARAMOUNT TERRACE CHRISTIAN CHURCH OF AMARILLO, Texas, Appellee.
    No. 8608.
    Court of Civil Appeals of Texas, Amarillo.
    Nov. 10, 1975.
    Rehearing Denied Dec. 8, 1975.
    J. Bruce Aycock, City Atty. (George N. Harwood), Amarillo, for appellants.
    Clayton & Stubblefield (D. Lyman Stub-blefield), Amarillo, for appellee.
   ROBINSON, Justice.

The trial court entered summary judgment enjoining defendants, the City of Amarillo, Amarillo Independent School District, Amarillo College District and Amarillo Hospital District, from making an assessment of, levying on, or collecting taxes on a certain property owned by Paramount Terrace Christian Church. The court assessed costs against defendant taxing authorities. The facts are not in dispute. The property in question is occupied exclusively, and has been occupied exclusively since its purchase, by the church’s Minister of Music. The church owns another residence which is occupied by its Minister. All of the properties owned by the church and used as dwelling places for its ministers occupy an area of less than one acre, and they yield no revenue to plaintiff.

Defendants appeal, contending that the second manse is taxable under the Texas Constitution, art. VIII, § 2, and Articles 7150 and 7150b, Vernon’s Ann.Civ.St., as interpreted in City of Houston v. South Park Baptist Church of Houston, 393 S.W.2d 354 (Tex.Civ.App.—Houston 1965, writ ref’d). That decision was expressly overruled by the Supreme Court in McCreless v. City of San Antonio, 454 S.W.2d 393 (Tex.1970). The pertinent parts of the Constitution and statutes are set out in the court’s opinion in McCreless. Following that authority we hold that the property in question is exempt from taxation.

Appellants further contend that costs may not be taxed against taxing authorities. It is true that Articles 7343 and 7297, V.A.C.S., provide that costs may not be taxed against taxing authorities in suits for the collection of delinquent taxes and this is true even though the taxpayer initiates the action. Lubbock Independent School District v. Owens, 217 S.W.2d 186 (Tex.Civ.App.—Amarillo 1948, writ ref’d), and City of Bryan v. Texas Services, Inc., 499 S.W.2d 750 (Tex.Civ.App.—Waco 1973, writ ref’d n. r. e.). However, the cause before us is not one for the collection of delinquent taxes, and, the suit not being within the statutory exemption, the taxing authorities may have costs taxed against them on the same basis as any other litigant. Glass v. Great Southern Life Ins. Co., 170 S.W.2d 247 (Tex.Civ.App.—Galveston 1943, writ ref’d w. o. m.). See also Atlantic Richfield Company v. Warren Independent School District, 453 S.W.2d 190 (Tex.Civ.App.—Beaumont 1970, writ ref’d n. r. e.).

The judgment of the trial court is affirmed.


author: REYNOLDS, Justice.

text:
    Tommy KEMP, Appellant, v. Ethel RANKIN, Appellee.
    No. 8616.
    Court of Civil Appeals of Texas, Amarillo.
    Nov. 10, 1975.
    Cowsert, Bybee, Line & Hoelscher (Ray Cowsert), Hereford, for appellant.
    Shuval & Saul (Andrew J. Shuval), Hereford, for appellee.
   REYNOLDS, Justice.

Posed by this appeal is the question whether the defendant employer is entitled to special issues submitting his pleaded contention that the salary payable under an oral contract of employment is different from that alleged by the plaintiff employee. Because defendant’s issues merely inferentially rebut the controlling issue upon which plaintiff had the burden of persuasion, the trial court correctly refused submission. Affirmed.

Ethel Rankin sued Tommy Kemp to recover the difference between the $1,200 monthly salary she alleged they had orally agreed upon and the salary Kemp paid her to operate his business. Kemp answered and pleaded the agreement was that Rankin’s starting salary would be $1,100 a month and if the business increased, the salary would be increased to $1,200 monthly. He further pleaded that the business had not increased, but that it had in fact decreased. Introduced was evidence which, depending on the credibility and weight assigned, was sufficient to support either position.

The trial court, refusing the special issues Kemp tendered to establish his contentions, submitted one issue inquiring whether, and the jury found that, Kemp agreed to pay Rankin $1,200 a month for managing his business. From the judgment rendered on the verdict for Rankin, Kemp has appealed, complaining that the refusal of his tendered issues denied him the submission of his theory of defense inasmuch as the submitted issue embraced only Rankin’s theory of recovery.

Kemp’s pleading that the contractual salary was different from that alleged by Rankin does not raise a true affirmative defense, but it only constitutes a rebuttal of Rankin’s ground of recovery upon which she had the burden of proof. Rice v. Thompson, 239 S.W.2d 137, 140 (Tex.Civ.App.—San Antonio 1951, writ ref’d n. r. e.). The pleading, by alleging facts inconsistent with, and thus rebutting, the existence of the factual element of Rankin’s cause of action, merely raises inferential rebuttal issues whose purpose is to factually establish the non-existence of Rankin’s cause of action. G. Hodges, Special Issue Submission in Texas 40 (1959).

Prior to September 1, 1973, a party was entitled to an issue submitting a fact inconsistent with, and thus rebutting, some essential factual element of his opponent’s cause of action or defense; however, since then Rule 277, Texas Rules of Civil Procedure, mandates that inferential rebuttal issues shall not be submitted. Therefore, Kemp was not entitled to submission of his inferential rebuttal issues; but he was not thereby deprived of his defense because Rankin, to discharge her burden of persuasion on the controlling issue, was required to convince the jury by a preponderance of the evidence that her salary was $1,200 a month and not the salary contended for by Kemp. Gulf Insurance Company v. Hodges, 513 S.W.2d 267, 270-71 (Tex.Civ.App.—Amarillo 1974, no writ). By its verdict, the jury was convinced that Rankin had discharged her burden of persuasion, and the verdict is not challenged.

The judgment is affirmed.


author: McKAY, Justice.

text:
    Henry W. PRATT, Appellant, v. Bob STORY et ux., Appellees.
    No. 861.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 13, 1975.

      Alex Beall, Beall & Crow, Tyler, for appellant.
    J. Byron Saunders, Saunders, Caldwell & Schmidt, Tyler, for appellees.
   McKAY, Justice.

Appellant, Henry W. Pratt, brings this appeal from a judgment of the 114th Judicial District Court of Smith County, Texas, which granted specific performance of a contract of purchase and sale and vested fee title and possession to a 4.167 acre tract of land in appellees, Bob Story and wife. We affirm.

On June 25, 1966, appellant entered a contract with one Jerger and wife to sell the property in question with improvements thereon for a purchase price of fifteen thousand ($15,000.00) dollars, payable in monthly installments. The contract provided that upon payment in full appellant would execute a general warranty deed and that payment in full was a condition precedent to the passing to buyer of any title, legal or equitable. Jerger and wife subsequently assigned the contract to appellees on January 14,1969. Thereafter, appellees lived on the property until July of 1972 when the residence located on the premises was destroyed by fire. Appellees then moved from the property and discontinued payment of the monthly installments.

Approximately four months later, on October 12, 1972, appellant filed an affidavit of default and repossession in the Deed Records of Smith County and took possession of the premises.

In compliance with the contract, appel-lees had maintained insurance on the premises in the amount of eighteen thousand ($18,000.00) dollars during the period of their occupancy. After filing the affidavit of default and repossession, appellant filed a proof of loss with appellees’ insurance company seeking to recover on the policy for the fire loss under the mortgagee clause. Appellant received thirteen thousand six hundred ($13,600.00) dollars from the insurance company on February 12, 1973. Appellant then executed a release and indemnity agreement to the insurance company and also agreed to indemnify the company against all claims which might be asserted by appellees.

Appellees then filed suit seeking a declaratory judgment that the contract was still in force and also seeking specific performance of the contract. Trial was to the court without a jury and ended favorably for appellees. The trial court filed findings of fact and conclusions of law. Among the findings of fact, the trial court found that appellant failed to comply with Art. 1301b, V.A.T.S., prior to February 12, 1973. As to the law, the trial court concluded that: (1) the contract was in force on February 12, 1973, (2) the payment to appellant of the insurance proceeds was pro tanto satisfaction of the amount due under the contract, and (3) appellant’s acceptance of the insurance proceeds extinguished his interest in the contract and the property.

In his first point, appellant contends that the trial court erred in holding that prior to executing the affidavit to cancel and void the contract appellant was required to comply with Art. 1301b, V.A.T.S. The statute became effective September 1,1969, and, as far as applicable to this case, provides:

“Art. 1301b. Forfeiture and acceleration under executory contract for conveyance; notice; avoidance
“Section 1. A forfeiture of the interest and the acceleration of the indebtedness of a purchaser in default under an execu-tory contract for conveyance of real property used or to be used as the purchaser’s residence may be enforced only after notice of seller’s intentions to enforce the forfeiture and acceleration has been given to the purchaser and only after the expiration of the periods provided below:
“(a) When the purchaser has paid less than 10% of the purchase price, 15 days from the date notice is given.
“(b) When the purchaser has paid 10% but less than 20% of the purchase price, 30 days from the date notice is given.
“(c) When the purchaser has paid 20%, or more, of the purchase price, 60 days from the date notice is given.
“(d) Notice must be by mail or other writing. If by mail, it must be registered or certified and shall be considered given at the time mailed to his residence or place of business, and notification by other writing shall be considered given at the time delivered to the purchaser at his residence or place of business.
“(e) Such notice shall be conspicuously set out; shall be printed in 10 point bold face type or upper case typewritten letters; and shall include the following:
NOTICE
YOU ARE LATE IN MAKING YOUR PAYMENT UNDER THE CONTRACT TO BUY YOUR HOME. UNLESS YOU MAKE THE PAYMENT BY (date) THE SELLER HAS THE RIGHT TO TAKE POSSESSION OF YOUR HOME AND TO KEEP ALL PAYMENTS YOU HAVE MADE TO DATE.”

No such notice was given to appellees by appellant.

Appellant argues that to require compliance with Art. 1301b in this case would violate that portion of Tex.Const. Art. I, Section 16, which prohibits retroactive laws or laws impairing the obligations of contracts. Appellant’s contention is that application of Art. 1301b is an unconstitutional violation of the forfeiture provision of the contract which, so far as pertinent, provided:

“5. . . . should Buyer be in default, . . . the Buyer shall surrender possession to Seller . . . and Seller shall have the right to re-enter and take full possession of such property to complete exclusion of Buyer, and a sworn statement to this effect filed of record in Smith County, Texas, will be notice to the World of the cancellation hereunder.”

At the outset, it should be noted that not all statutes fall within the prohibition of Art. 1, Section 16. It has long been held in Texas that statutes which are remedial in nature and which do not disturb vested rights are not within this constitutional ban. International Bldg. and Loan Ass’n v. Hardy, 86 Tex. 610, 26 S.W. 497 (1894); American Surety Co. of New York v. Axtell Co., 120 Tex. 166, 36 S.W.2d 715 (1931, opinion adopted); City of Fort Worth v. Morrow, 284 S.W. 275 (Tex.Civ.App.—Fort Worth, 1926, writ ref’d); Beaumont Petroleum Syndicate v. Broussard, 64 S.W.2d 993 (Tex.Civ.App. —Beaumont, 1933, appeal dism’d); Regal Properties v. Donovitz, 479 S.W.2d 748 (Tex.Civ.App. —Dallas, 1972, writ ref’d, n. r. e.).

A remedial statute has been defined as a law introducing a new regulation for the advancement of the public welfare or conducive to the public good, Board of Ins. Com’rs v. Great Southern Life Ins. Co., 150 Tex. 258, 239 S.W.2d 803 (1951); or one which supplies defects, and abridges superfluities in the former law, Falls v. Key, 278 S.W. 893 (Tex.Civ.App.—Fort Worth, 1925, writ dism’d); or one enacted to afford a remedy, or to improve and facilitate remedies existing for the enforcement of rights and the redress of injuries, and also one intended for the correction of defects, mistakes and omissions in the civil institutions and administrative policy of the state. Slate v. City of Fort Worth, 193 S.W. 1143 (Tex.Civ.App.—El Paso, 1917, no writ). Generally stated, a remedial statute pertains to remedies or procedure.

Art. 1301b merely provides a notice procedure to be followed prior to enforcing a forfeiture for default under an executory contract of sale. Therefore, in our opinion, Art. 1301b, V.A.T.S., is a remedial statute. This conclusion would seem to be borne out by analogizing to Art. 3810, V.A.T.S., concerning sales under deeds of trust. Art. 3810 pertains to the procedure to be followed and the notice to be given for sale of real property by a trustee under a deed of trust and (then Art. 3759) was denominated a remedial statute in Freece v. Truskett, 130 Tex. 90, 106 S.W.2d 675 (1937, opinion adopted). Moreover, at the last session of the Legislature, Art. 3810 was amended to provide for additional notice requirements; and Section 2 of the amended act provides, “This Act shall become effective on January 1, 1976, and it shall apply only to sales made after that date.” (Emphasis added.) Vernon’s Tex. Session Laws, 1975, ch. 723, at page 2354. We are of the opinion that the Legislature also intended Art. 1301b should control forfeitures under executory contracts of sale occurring after its effective date of September 1, 1969.

Consequently, it would appear that appellant’s arguments are not well taken. In McCain v. Yost, 155 Tex. 174, 284 S.W.2d 898, 900 (1955), the Supreme Court of Texas stated, “A statute cannot be said to be a retroactive law prohibited by the Constitution unless it can be shown that the application of the law would take away or impair vested rights acquired under existing law.” On the other hand, a remedial statute is applicable and controlling from the date it becomes effective. Regal Properties v. Donovitz, supra; Bryant v. State, 457 S.W.2d 72 (Tex.Civ.App.—Eastland, 1970, writ ref’d, n. r. e.); Phil H. Pierce Co. v. Watkins, 114 Tex. 153, 263 S.W. 905 (1924). Therefore, Art. 1301b, which became effective in 1969, is applicable to the present case because default and the attempted forfeiture did not occur until 1972.

In our opinion, the obligations of this contract are not impaired by the provisions of Art. 1301b. The obligations of a contract bind the parties by law to perform their agreement. Hutchings v. Slemons, 141 Tex. 448, 174 S.W.2d 487 (1943); Beaumont Petroleum Syndicate v. Broussard, supra. After Art. 1301b became effective and controlling, appellant and appellee were still bound to perform the contract according to its terms. The forfeiture provision was still intact and fully available to appellant as per the terms of the contract. There is no provision for notice prior to forfeiture in the contract; rather, the contract is completely silent on the subject. Since the parties did not expressly contract in regard to notice, the Legislature could constitutionally require notice prior to enforcement of the right of forfeiture under the contract. Sharber v. Florence, 131 Tex. 341, 115 S.W.2d 604 (1938); Langever v. Miller, 124 Tex. 80, 76 S.W.2d 1025 (1934). “It is the settled law that a litigant has no vested right in a remedy . . . ” Pierce v. Watkins, supra. The prescribed notice procedure in Art. 1301b does not violate any express provision of the contract and, therefore, does not impair the obligations of the contract.

Appellant’s first point is overruled.

Appellant has neither briefed nor orally argued his second point; therefore, appellant’s second point is waived. Rule 418, T.R.C.P.

The judgment of the district court is affirmed.


author: SHANNON, Justice.

text:
    Percy E. GRIFFIN, Appellant, v. O. B. ELLINGER, d/b/a O. B. Ellinger Paint & Drywall, Appellee.
    No. 12329.
    Court of Civil Appeals of Texas, Austin.
    Nov. 19, 1975.
    Rehearing Denied Dec. 10, 1975.

      Robert C. Carr, Austin, for appellant.
    Mary Ellen Felps, Joel B. Mitchell, Austin, for appellee.
   SHANNON, Justice.

This appeal involves Tex.Bus. & Comm. Code Ann. § 3.403 (1967) which concerns, in general, the obligations of an authorized representative who signs his name to an instrument without showing his representative capacity.

In his first amended original petition, ap-pellee, O. B. Ellinger, doing business as O. B. Ellinger Paint & Drywall, sued appellant, Percy E. Griffin, in the district court of Travis County for the sum of $3,950.00. Appellant, at the times material, was president of Greenway Building Company. Ap-pellee had performed labor for and furnished materials to Greenway for a project at Lakeway in Travis County. In payment for those services and materials appellant signed three drafts totaling $3,950.00 upon the Northeast Bank of Houston to be drawn upon Greenway’s account. The drafts did not show that appellant signed in his capac-. ity as president of Greenway. The bank refused payment for reason that Green-way’s account had insufficient funds. Upon trial to the court, judgment was entered for appellee for $3,950.00. We will affirm that judgment.

Appellant asserted by way of defense that in signing the drafts he was not acting in his individual capacity, but instead he was acting as the authorized officer for Greenway.

Upon request, the court filed findings of fact and conclusions of law. Among other things, the court found that appellee entered into an agreement with appellant to do certain work and furnish certain materials on the involved project. The court found further that appellee “. . . was not told who owned the project; who would pay him; or who would be responsible for the payments, nor did he [appellee] inquire.” The court found as a fact that appellant signed the drafts and delivered them to appellee without comment. Appellant did not tell appellee that the “check was for or on behalf of the Corporation [Greenway].” The court did find that ap-pellee had received on numerous occasions other drafts drawn on Greenway from other officers of Greenway and that appellee had never looked to those officers for payment.

The court concluded that appellee was entitled to judgment against appellant by virtue of Tex.Bus. & Comm.Code Ann. § 3.403 (1967).

Appellant attacks the judgment and findings and conclusions by a single point of error by which he maintains that the court erred in concluding that appellant was “. . personally liable to Appellee under the circumstances disclosed by the evidence by reason of Section 3.403 of the Texas Business and Commerce Code.”

Texas Bus. & Comm.Code Ann. § 3.403 provides, in part, as follows:

“§ 3.403. Signature by Authorized Representative
“(a) A signature may be made by an agent or other representative, and his authority to make it may be established as in other cases of representation. No particular form of appointment is necessary to establish such authority.
“(b) An authorized representative who signs his own name to an instrument
“(1) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity;
“(2) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.”

One of the drafts, which is typical, is set out below:

An examination of the drafts does not show prima facie that appellant signed them in a representative capacity. Although it is true that each draft has the printed name “Greenway Bldg. Co., Inc.,” in the upper left corner, there is no word preceding or following appellant’s signature showing that he signed in a representative capacity. Under these circumstances, § 3.403(b)(2) deems appellant personally obligated on the drafts unless appellant brought himself within the proviso, “except as otherwise established between the immediate parties.”

The phrase, “except as otherwise established between the immediate parties,” contemplates that the maker may introduce parol evidence to rebut the presumption of personal obligation otherwise imposed by § 3.402(b)(2). Section 3.403 does not indicate, however, the type of parol evidence necessary to rebut the presumption of personal obligation. Seale v. Nichols, 505 S.W.2d 251 (Tex.1974). The Supreme Court in that case suggested that parol evidence tendered by the signer showing an understanding between the parties, or prior dealings between the parties, or a disclosure by the signer at the time of the execution of the instrument, would be admissible to establish the exception in § 3.403(b)(2).

Under his point of error appellant makes several arguments. Appellant says that he did not conceal the name and identity of his principal. Appellant claims, as a result, he should not be personally liable on. the named checks. It may be true that appellant did not conceal the name and identity of his principal, but to escape personal liability, § 3.403(b)(2) affirmatively requires the signer to show that he signed the instruments in a representative capacity-

Appellant then points to the fact that in previous instances appellee had billed Green way, and in those instances, officers of that corporation, other than appellant, had signed the drafts. Appellant would argue that those previous transactions constituted a history of “prior dealings between the parties” as mentioned by the Supreme Court in Seale v. Nichols, supra. Appellant’s argument overlooks the requirement in the exception contained in § 3.403(b)(2) that proof be made of an understanding, or perhaps relationship, “between the immediate parties.” The prior dealings shown were not between appellant and appellee but instead between other officers of the corporation and appellee.

Appellant states, correctly, that the record shows he did not make any personal representations that he would personally guarantee the drafts. Appellant then argues that before he could be personally obligated on the drafts appellee would have to prove that appellant guaranteed them. Appellant’s argument ignores the plain language of § 3.403, which makes the signer personally obligated if the instrument he signs does not show that he signed in a representative capacity.

The judgment is affirmed.

Affirmed.


text:
    TEXAS STATE BOARD OF PHARMACY et al., Appellants, v. GIBSON’S DISCOUNT CENTER, INC., et al., Appellees.
    No. 12330.
    Court of Civil Appeals of Texas, Austin.
    Nov. 19, 1975.
    Rehearing Denied Dec. 10, 1975.

      John L. Hill, Atty. Gen. of Texas, John C. Madison, III, Asst. Atty. Gen., for appellants.
    Bardwell D. Odum, Dallas, for Gibson’s Discount Center, Inc., and others.
    Mary Joe Carroll, Clark, Thomas, Winters & Shapiro, Austin, for Sage International, Inc.
   SHANNON, Justice.

This is an appeal from a permanent injunction entered by the district court of Travis County enjoining appellants, Texas State Board of Pharmacy, C. Dean Davis, and Joseph H. Arnette, from enforcing Tex. Rev.Civ.Stat.Ann. art. 4542a, § 20A, subdivisions 11(a) and 11(d) (1973). Appellees are Gibson’s Discount Center, Inc., Gibson Products Company, Inc., Gibson’s Discount Pharmacy, Inc. of Sulphur Springs, H. R. Gibson, Sr., Sage International, Inc., Sage Drugs, Inc., Gulf Enterprises, Inc., Sage, Inc. of Austin, and Gulf Austin Enterprises, Inc., doing business as Sage Austin Drug Department.

The appellees filed their suit as a declaratory judgment action seeking a declaration that Art. 4542a, § 20A subdivisions 11(a) and 11(d) were in violation of Tex.Const. art. Ill, § 35 and Tex.Const. art. I, § 19. Appellees also sought ancillary relief by way of a temporary restraining order, temporary injunction, and permanent injunction.

Upon trial before the court, judgment was entered on March 16, 1975, declaring that the caption to House Bill 750 (Acts 1973, 63rd Leg., Ch. 431, p. 1178) [Tex.Rev. Civ.Stat.Ann. art. 4542a, § 20A] failed to give notice of various provisions in the body of the bill prohibiting and restricting the advertising of prescription drugs all in violation of Tex.Const. art. Ill, § 35; and that the prohibitions and restrictions in § 20A subdivisions 11(a) and 11(d) on the advertising of prescription drugs were not justified as a proper use of the police power of the State, and that the said prohibitions and restrictions deprived appellees of property “without due course of the law of the land” in violation of Tex.Const. art. I, § 19.

Eight days after the judgment was signed, appellants filed with the district clerk their notice of appeal stating that they “. . . hereby give Notice of Appeal from the amended judgment entered in this cause on March 10, 1975, to the Supreme Court of the State of Texas.” (Emphasis added)

Sixty days after the entry of the judgment appellants filed the record, not with the Clerk of the Supreme Court of Texas, but instead with the Clerk of this Court. Appellees filed motions to dismiss for want of jurisdiction. Thereafter, this Court overruled appellees’ motions to dismiss for want of jurisdiction. On the same date, this Court instructed the Clerk to inform all counsel that the Court desired argument on the motions at the time the case was submitted and argued on the merits.

After argument and upon reconsideration, we have concluded that the motions to dismiss for want of jurisdiction were improvidently overruled. We will set aside the order overruling the motions to dismiss for want of jurisdiction, and we will grant the motions and dismiss the appeal.

Appellants argue, in effect, that from the time of the filing of the notice of appeal with the district clerk, they could have filed the record with either the Clerk of the Supreme Court of Texas or with the Clerk of this Court. According to their response to the motions to dismiss and supporting affidavit, appellants had intended to pursue a direct appeal to the Supreme Court of Texas until their counsel realized that fact issues in the cause might preclude a direct appeal. It was at the time of that realization that appellants decided to file the record with the Clerk of this Court.

Texas R.Civ.P. 363 provides that an appeal is perfected “. . . when the notice of appeal is given and the bond or affidavit in lieu thereof has been filed. When an appeal is perfected to the Court of Civil Appeals, that Court, subject to the right of the trial court to grant a motion for new trial in term time and absent statutory exception, acquires plenary exclusive jurisdiction over the entire controversy. Ammex Warehouse Company v. Archer, 381 S.W.2d 478 (Tex.1964). Likewise, it follows that when an appeal is perfected to the Supreme Court of Texas, by virtue of Tex.R.Civ.P. 499a, the Supreme Court, subject to the right of the trial court to grant a motion for new trial in term time and absent statutory exception, acquires plenary exclusive jurisdiction over the entire controversy.

A direct appeal to the Supreme Court of Texas is in lieu of an appeal to the Court of Civil Appeals. Tex.R.Civ.P; 499a(c).

Upon entry of judgment, appellants determined to perfect a direct appeal to the Supreme Court of Texas. Tex.R. Civ.P. 499a. Appellants filed their notice of appeal to the Supreme Court of Texas on March 18, 1975. Because appellants were not required to file an appeal bond, appellants’ appeal was perfected to the Supreme Court of Texas on March 18, 1975, when appellants filed the notice of appeal. Tex. R.Civ.P. 363. Two parallel appeals cannot proceed simultaneously from the district court to the Supreme Court of Texas and to the Court of Civil Appeals, since a direct appeal to the Supreme Court of Texas is in lieu of an appeal to the Court of Civil Appeals. Tex.R.Civ.P. 499a(c).

The appeal is dismissed.


author: O’QUINN, Justice.

text:
    Joe CHRISTIE, Chairman of the State Board of Insurance, et al., Appellants, v. ARGONAUT INSURANCE COMPANIES, Appellee.
    No. 12376.
    Court of Civil Appeals of Texas, Austin.
    Nov. 19, 1975.

      John L. Hill, Atty. Gen. of Texas, Thomas M. Pollan, Asst. Atty. Gen., Austin, for appellants.
    J. Sam Winters, Mary Joe Carroll, Clark, Thomas, Winters & Shapiro, Austin, for ap-pellee.
   O’QUINN, Justice.

Argonaut Insurance Companies brought this suit in district court of Travis County on July 1, 1975, for declaratory judgment and to enjoin the Chairman and members of the State Board of Insurance, the Commissioner of Insurance, and their agents and employees from enforcing certain provisions of an Act of the Legislature, effective on June 3,1975, regulating professional liability insurance for physicians, podiatrists, and hospitals in this state.

The regulatory Act, which under its declared emergency became effective immediately with signature of the Governor on June 3, 1975, contained a requirement that an insurer issuing a policy of professional liability insurance covered by the statute “give at least 90 days’ written notice to an insured if premiums on the insurance are to be increased or the policy is to be cancelled or nonrenewed other than for nonpayment of premiums or because the insured is no longer licensed.” (Acts 1975, 64th Leg., ch. 330, S. B. 466; Texas Insurance Code, Art. 5.82, sec. 7).

The trial court, after hearing on the in-junctive issues and without reaching the merits, found that Argonaut had vested rights and that enforcement of the “90-day notice provision . . . during the first 90 days operation of the law” would work irreparable injury to Argonaut. The court by order entered July 29, 1975, enjoined defendants “during the first 90 days following the effective date of the Act from enforcing or attempting to enforce the 90-day notice provision and from giving or attempting to give a retroactive effect to any previously charged rate during such period and from taking any other action which would prevent plaintiffs [plaintiff] from cancelling or nonrenewing policies during the said 90 day period.” (Emphasis added)

Defendants have appealed, and the parties have filed briefs and on November 5, 1975, made oral arguments. Argonaut filed its motion on October 9, 1975, to dismiss on the ground that the order granting temporary injunction is moot, the order having terminated by its own terms on September 1, 1975.

Argonaut filed suit on July 1, 1975, and the trial court on that date entered its order temporarily restraining defendants from enforcing the 90-day notice provision of the Act and from refusing to recognize the rates filed by Argonaut as approved, pending formal approval or disapproval, “and from taking any other action which would prevent plaintiff from refusing to renew policies of insurance” in event the State Insurance Board should refuse to approve the rates filed by Argonaut.

The trial court’s restraining order was extended until the hearing on temporary injunction, when the order appealed from was entered by the court.

The record shows that outstanding insurance policies in force on June 3, the effective date of the Act, were subject to renewal on July 1, 1975, and that, under protection of the temporary restraining order, Argonaut issued new policies to insureds whose policies were subject to renewal on that date, without first giving 90 days’ notice as required by the Act.

The temporary injunction by its own terms did not extend beyond September 1, 1975. Defendants filed the statement of facts and transcript in this Court on August 25, 1975, seven days before the trial court’s order expired. Defendants filed their appellants’ brief on September 17, 1975, and plaintiff filed a brief and motion to dismiss on October 9, 1975. It is obvious that when the record was filed in this Court a final judgment on the injunc-tive order could not have been had prior to expiration of the trial court’s order on September 1. An appeal under such circumstances is moot, and an appeal from an order imposing restraint on action for a certain period of time becomes moot on expiration of the period fixed in the order. Sterling v. Ferguson, 122 Tex. 122, 53 S.W.2d 753 (1932); Speed v. Keys, 130 Tex. 276, 109 S.W.2d 967 (1937); Texas State Federation of Labor v. Brown & Root, Inc., 233 S.W.2d 622 (Tex.Civ.App. Austin 1950, writ ref.).

It is settled that appellate courts do not decide cases where no actual controversy exists between the parties at the time of hearing. City of West University Place v. Martin, 132 Tex. 354, 123 S.W.2d 638 (1939).

When an appeal is from an order granting a temporary injunction, as in this ease, and that phase of the cause has become moot on appeal, the general rule that previous orders are set aside by the appellate court applies, and that portion of the case will be dismissed, leaving the main case still pending on its merits. Texas Foundries, Inc. v. International Moulders and Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460, 461 (1952); Guajardo v. Alamo Lumber Company, 159 Tex. 225, 317 S.W.2d 725 (1958); Zuniga v. U. S. Investors, Inc., 453 S.W.2d 811 (Tex.1970); Ralston v. Ralston, 476 S.W.2d 775, 778 (Tex.Civ.App. Beaumont 1972, no writ).

The trial court expressly declined to “enter any declaratory judgment as to the effect of the rates which plaintiffs have [plaintiff has] filed with the Board and defers action on this issue until final hearing on the merits.” The court found that Argonaut had vested rights and that enforcement of the 90-day notice provision of the Act during the first 90 days of the operation of the law would work irreparable injury. “The parties are left in status quo,” the court stated, “as to rates as of June 3,1975,” the effective date of the Act.

The orders of the trial court pertaining to the temporary injunction are set aside, and, insofar as it relates to the matter of the temporary injunction, the cause is dismissed at appellants’ cost. We do not have before us, and do not pass on, whether the trial court was justified in issuing the temporary injunction, and the order of dismissal is entered without prejudice to such further actions as the parties and the district court may take with reference to the case on the merits. West v. Culpepper, 135 Tex. 156, 140 S.W.2d 166 (1940); Zuniga v. U. S. Investors, Inc., supra.

Insofar as the case relates only to the temporary injunction the cause is dismissed.

Temporary injunction set aside and cause dismissed in part.


author: JAMES, Justice.

text:
    Andy LOWE, Appellant, v. TEXAS TECH UNIVERSITY, Appellee.
    No. 5476.
    Court of Civil Appeals of Texas, Waco.
    Nov. 20, 1975.
    Rehearing Denied Dec. 11, 1975.

      Garner, Vickers, Purdom & Nelson, Lubbock, Spillman & Spillman (Paul Spillman), Wellington, for appellant.
    John L. Hill, Atty. Gen., David M. Kendall, 1st Asst. Atty. Gen., Austin, for appel-lee.
   OPINION

JAMES, Justice.

This is a case involving the Texas Tort Claims Act. Plaintiff-Appellant Andy Lowe sued Defendant-Appellee Texas Tech University for damages for personal injuries allegedly incurred by Plaintiff while playing football for the University. The Defendant University filed “pleas to the Jurisdiction and in Abatement” asserting that the “allegations in Plaintiff’s Petition fail to bring him within the coverage of the Texas Tort Claims Act” (Article 6252-19, Vernon’s Texas Civil Statutes). Thereupon, Plaintiff filed his First Amended Original Petition. Thereafter, the trial court after hearing sustained the Defendant’s above described plea in abatement and to the jurisdiction and dismissed and abated Plaintiff’s cause of action. We affirm.

Plaintiff alleged in his First Amended Original Petition, among other things, that in the year 1972 and prior thereto, he was a student at the Defendant University and was actively engaged in the athletic program of the University; that prior to the year 1972 he received an injury to his left knee while playing football for the Defendant on the varsity team; and that on September 16, 1972, while playing football in behalf of Defendant University, he received an additional injury to his left knee which is the subject matter of the damages sued for. Plaintiff alleged seven specific grounds of negligence against Defendant, three of which (same being Nos. 1, 2 and 5) he contends bring his case under the Tort Claims Act, Article 6252-19. Said grounds of negligence numbers 1, 2 and 5 are alleged as follows:

“(1) In failing to furnish proper equipment, braces and/or supporting devices to Plaintiff;

“(2) In failing to permit Plaintiff to wear proper equipment, braces and supporting devices available;

“(5) In furnishing equipment, uniforms, and pads which were defective.”

The pertinent portion of the Texas Tort Claims Act is found in Section 3 of Article 6252-19, which reads as follows:

“Sec. 3. Each unit of government in the state shall be liable for money damages for personal injuries ⅜ * * so caused from some condition or some use of tangible property, real or personal under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state. * * (emphasis supplied).

Plaintiff-Appellant’s first point of error asserts the trial court erred in dismissing Plaintiff’s cause of action because he says the Plaintiff’s injury involved the use of tangible property by Defendant’s employees, making Defendant liable under Section 3 of Article 6252-19. In this connection, Appellant contends:

“In the instant case, Defendant’s employee provided Plaintiff with equipment and a uniform but failed to provide protection for Plaintiff’s knee. The employee had tape available with which to wrap Plaintiff’s knee and had often done so since Plaintiffs prior injury. However, on the day of Plaintiff’s subsequent injury, the employee negligently failed to use the tape that was available to protect Plaintiff’s knee. In furnishing Plaintiff with a uniform and pads without additional protection for his injured knee, the employee provided him with defective equipment. This constituted a negligent or wrongful omission involving the ‘use of tangible property’ within the meaning of Section 3 of the Texas Tort Claims Act.” We overrule this point.

As we understand the above-quoted portion of Section 3, for the Plaintiff’s cause of action to fall within the statute and thereby avoid governmental immunity, the personal injuries must have been proximately caused from some condition or some use of tangible property. The gist of Plaintiff’s alleged grounds of Defendant’s negligence are based upon Defendant’s failure to use tape to protect his injured knee. As we understand Plaintiff’s contention, he is not asserting that any of the equipment, uniforms and pads furnished him were defective, but that Defendant was negligent in failing to use tape to furnish additional protection for his knee.

We believe Plaintiff’s cause of action falls into the category of being based upon “an error of judgment” on the part of Defendant’s employee in failing to use the tape, rather than upon “some condition or some use of tangible property,” in which event the Texas Tort Claims Act is not applicable, and sovereign immunity is not waived. Beggs v. Texas Department of Mental Health and Mental Retardation (San Antonio Tex.Civ.App.1973) 496 S.W.2d 252, writ refused. Or Plaintiff’s cause of action, might be characterized as one wherein the Defendant failed to furnish proper medical care, rather than one wherein the injuries were caused from the condition or use of tangible property. See Texas Department of Corrections v. Herring (Tex.1974) 513 S.W.2d 6.

In short, we do not believe that Defendant’s “failure to use tape” on Plaintiff’s knee is the type of negligent conduct in-cludable in the language of the statute requiring that Plaintiff’s injuries be “caused from some condition or some use of tangible property.” In other words, we cannot say that by Defendant’s failure to use tape, that Plaintiff’s injuries were thereby caused by “some use of tangible property.” For these reasons, we hold that Plaintiff’s amended petition failed to state a cause of action under the Texas Tort Claims Act.

Appellant’s second point of error contends that the Athletic Department of Texas Tech University was engaged in proprietary, non-governmental activities and for this reason Defendant is not protected by governmental immunity. We overrule this contention.

In the absence of a constitutional or statutory provision therefor, the state is not liable for the torts of its officers or agents. Texas Highway Department v. Weber (1949) 147 Tex. 628, 219 S.W.2d 70.

It has been held that a state agency, such as Texas Tech University, has sovereign immunity and is not liable for the negligence of its agents or employees unless such immunity has been waived and legislative consent has been given to sue the state agency. Texas Technological College v. Fry (Amarillo Tex.Civ.App.1954) 278 S.W.2d 480, no writ history, Walsh v. University of Texas (El Paso Tex.Civ.App.1942) 169 S.W.2d 933, writ refused. The doctrine of sovereign immunity is still the law in Texas insofar as applied to a state agency such as this Defendant is concerned, except for the limited waiver of governmental immunity created by the Texas Tort Claims Act.

Appellant’s third point of error attacks the doctrine of governmental immunity in principle, and says it should be abolished. We overrule this point by saying that this is not a decision which this court could or should properly make, but rather is one to be addressed to our Supreme Court for determination. See Beggs v. Texas Department of Mental Health and Mental Retardation (San Antonio Tex.Civ.App. 1973) 496 S.W.2d 252, writ refused.

Appellant’s fourth point of error asserts the trial court erred in granting Defendant’s motion to strike Plaintiff’s request for admissions and interrogatories.

After Defendant had filed its answer, Plaintiff caused to be served upon the Defendant University its “Requests for Admissions and Interrogatories,” which request recited that it was made under the provisions of Rules 168,169, and 170, Texas Rules of Civil Procedure, and which included 43 Requests for Admissions and 33 Interrogatories.

In response thereto, the Defendant filed its “Motion to Strike Request for Admissions and Interrogatories,” relying upon Article 4411, Vernon’s Texas Civil Statutes, which provides:

“No admission, agreement or waiver, made by the Attorney General, in any action or suit in which the State is a party, shall prejudice the rights of the State.”

The trial court sustained Defendant’s motion to strike and consequently the Defendant was not required to answer the interrogatories or deal with the requests for admissions.

The trial court’s sustaining of the motion to strike, insofar as it applied to the written interrogatories submitted under Rule 168, Texas Rules of Civil Procedure, was error. Texas Department of Corrections v. Herring (Tex.1974) 513 S.W.2d 6. However, we believe that such error was harmless under Rule 434, Texas Rules of Civil Procedure, because we have carefully examined these 33 interrogatories and have determined that if each and all were answered in a manner favorable to Plaintiff, that Defendant would still not be liable because of its status under the doctrine of governmental immunity.

To the contrary, the trial court’s sustaining Defendant’s motion to strike the requests for admissions under Rule 169 was proper. Rule 169 provides in part:

“Any matter admitted under this rule is conclusively established as to the party making the admission unless the court on motion permits withdrawal or amendment of the admission.” The clear purpose of Rule 169 is to furnish a means whereby the requesting party may secure or exact admissions of fact from an opposing party. Had the trial court required the Attorney General (here representing the Defendant) to answer the requests for admissions, the Attorney General could not have complied without running afoul of Article 4411, hereinabove quoted.

For all the reasons hereinabove stated, judgment of the trial court is affirmed.

Affirmed.