author: ROBERTS, Judge. DOUGLAS, Judge,

text:
    Ricky Lawrence CARPENTER, Appellant, v. The STATE of Texas, Appellee.
    No. 53314.
    Court of Criminal Appeals of Texas.
    May 25, 1977.
    Rehearing Denied June 22, 1977.
    Louis Dugas, Jr., Orange, for appellant.
    Bill A. Martin, Dist. Atty., and Monte D. Lawlis, Asst. Dist. Atty., Jasper, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for aggravated kidnapping. The jury assessed punishment at 60 years’ confinement in the Texas Department of Corrections. Because the indictment fails to allege an offense over which the District Court had jurisdiction, the judgment must be reversed.

Omitting the formal parts, the indictment alleges that on or about June 20, 1975, appellant:

“did then and there intentionally and knowingly restrain Kimberly Jean Rogers by secreting and holding her in a place where she was not likely to be found without the consent of Kimberly Jean Rogers and with the intent to violate and abuse sexually the said Kimberly Jean Rogers.”

Section 20.04 of our new Penal Code defines aggravated kidnapping, in part, as follows:

“(a) A person commits an offense if he intentionally or knowingly abducts another person with the intent to:
* * * * * ⅜
“(4) inflict bodily injury on him or violate or abuse him sexually;
* * * * ⅜ *
“(b) An offense under this section is a felony of the first degree unless the actor voluntarily releases the victim alive and in a safe place, in which event it is a felony of the second degree.”

Although the indictment correctly alleges the necessary culpable mental states and also alleges the required intent to violate and abuse another, it fails to allege that the appellant abducted the complainant; instead, the indictment alleges that appellant restrained the complainant, and, more specifically, that he restrained her “by secreting and holding her in a place where she was not likely to be found without [her] consent.”

This substitution of restraint for abduction in the indictment is an important one because Chapter 20 of the Penal Code, which includes aggravated kidnapping, makes restraint less culpable conduct than abduction. Restraint and abduction are defined in Section 20.01 of the Code, as follows:

“Sec. 20.01. Definitions
“In this chapter:
“(1) ‘Restrain’ means to restrict a person’s movements without consent, so as to interfere substantially with his liberty, by moving him from one place to another or by confining him. Restraint is ‘without consent’ if it is accomplished by:
“(A) force, intimidation, or deception; or
“(B) any means, including acquiescence of the victim, if he is a child less than 14 years of age or an incompetent person and the parent, guardian, or person or institution acting in loco parentis has not acquiesced in the movement or confinement.
“(2) ‘Abduct’ means to restrain a person with intent to prevent his liberation by:
“(A) secreting or holding him in a place where he is not likely to be found; or
“(B) using or threatening to use deadly force.”
* * * * * *

Then, Section 20.02 defines the offense of false imprisonment as the intentional or knowing restraint of another person and provides that false imprisonment is a Class B misdemeanor, except where the actor recklessly exposes the victim to a substantial risk of serious bodily injury, in which case it is a third degree felony. V.T.C.A., Penal Code, Sees. 20.02(a), (c).

Sections 20.03 and 20.04 define kidnapping and aggravated kidnapping, both of which are classed as felonies; both contain as a necessary element the fact of abduction.

Thus, the Code makes abduction felony conduct, while restraint is generally condemned as misdemeanor conduct by the false imprisonment statute. Hence, a false imprisonment indictment which alleges mere restraint does not invoke the jurisdiction of the district court, unless the indictment also sets out the added penalty allegations of Section 20.02(c). See Wilson v. State, 520 S.W.2d 377 (Tex.Cr.App.1975); Mears v. State, 520 S.W.2d 380 (Tex.Cr.App.1975); Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975). Clearly, the indictment in this case does not allege that the appellant recklessly exposed the complainant to a substantial risk of serious bodily injury; felony false imprisonment has not been alleged.

However, as a reading of Section 20.01(2) reveals, abduction is defined in terms of restraint; in fact, it can be said to be an aggravated form of restraint. It follows that if the indictment is otherwise sufficient, yet fails to allege abduction itself, but instead alleges all of the statutory elements of abduction, it is sufficient. Ex Parte Cannon, 546 S.W.2d 266, 272 (Tex.Cr.App.1976) (opinion on motion for rehearing).

The question, then, is whether the indictment properly alleges all of the elements of abduction.

Although the indictment does allege that appellant restrained the complainant by secreting and holding her in a place where she was not likely to be found, it fails to allege an essential element of abduction — that the appellant intended to prevent the liberation of the complainant. V.T.C.A., Penal Code, Sec. 20.01(2). By omitting this element, the State has failed to allege the offense of aggravated kidnapping.

Nor can this omission be justified by saying that the indictment did allege that the restraint was without the complainant’s consent. First, lack of consent is an element of restraint, as defined in Section 20.01(1); therefore, its use in the indictment is surplusage. Second, it is clear that the intent to prevent another’s liberation has a narrower and more particularized meaning than “without consent.” Cf. Art. 21.05, Vernon’s Ann.C.C.P.; Ex Parte Cannon, supra.

The indictment fails to allege aggravated kidnapping, or even kidnapping or felony false imprisonment. However, the indictment is sufficient to charge the misdemean- or offense of false imprisonment. Therefore, in accord with the holding in Suarez v. State, 532 S.W.2d 602, 603 (Tex.Cr.App.1976), the judgment is reversed and the cause remanded. See also Durham v. State, 532 S.W.2d 606 (Tex.Cr.App.1976).

DOUGLAS, Judge,

dissenting.

The majority holds that the indictment for aggravated kidnapping is fundamentally defective because it does not allege that appellant intended to prevent the liberation of the complainant. The indictment alleges, in substance, all of the statutory elements of abduction and, thus, is sufficient.

The indictment alleges, in pertinent part, that on or about June 20, 1975, appellant “. . . did then and there intentionally and knowingly restrain Kimberly Jean Rogers by secreting and holding her in a place where she was not likely to be found without the consent of Kimberly Jean Rogers and with the intent to violate and abuse sexually the said Kimberly Jean Rogers.”

This alleges an offense under V.T.C.A., Penal Code, Section 20.04, which provides in part:

“(a) A person commits an offense if he intentionally or knowingly abducts another person with the intent to:
U* * *
“(4) inflict bodily injury on him or violate or abuse him sexually;
U* * *
“(b) An offense under this section is a felony of the first degree unless the actor voluntarily releases the victim alive and in a safe place, in which event it is a felony of the second degree.”

The indictment does not allege that appellant abducted the complainant. However, it does allege that he restrained her “by secreting and holding her in a place where she was not likely to be found without [her] consent.”

In Chapter 20 of the Penal Code there is a significant distinction between the terms restraint and abduction. These terms are defined in Section 20.01 which recites:

“In this chapter:
“(1) ‘Restrain’ means to restrict a person’s movements without consent, so as to interfere substantially with his liberty, by moving him from one place to another or by confining him. Restraint is ‘without consent’ if it is accomplished by:
“(A) force, intimidation, or deception; or
“(B) any means, including acquiescence of the victim, if he is a child less than 14 years of age or an incompetent person and the parent, guardian, or person or institution acting in loco parentis has not acquiesced in the movement or confinement.
“(2) ‘Abduct’ means to restrain a person with intent to prevent his liberation by:
“(A) secreting or holding him in a place where he is not likely to be found; or
“(B) using or threatening to use deadly force.”

Therefore, as the majority points out, abduction is an aggravated form of restraint. Under V.T.C.A., Penal Code, Sections 20.03 and 20.04, abduction constitutes felony conduct. But under V.T.C.A., Penal Code, Section 20.02, the false imprisonment provision, restraint constitutes misdemeanor conduct except where the actor recklessly exposes the victim to a substantial risk of serious bodily injury, in which event it is a third degree felony.

From the foregoing, it is clear that the indictment is sufficient if it alleges all of the statutory elements of abduction, even though it fails to allege the conclusory term “abduction” itself. See and compare, Ex Parte Cannon, 546 S.W.2d 266 (Tex.Cr.App. 1976) (opinion on motion for rehearing).

The indictment alleges that appellant restrained the complainant by secreting and holding her in a place where she was not likely to be found, an essential element of abduction. It further alleges that the restraint was without the complainant’s consent. This allegation is not mere surplus-age (as an element of restraint) because, in conjunction with the prior allegation, it connotes that appellant intended to prevent the liberation of the complainant.

Article 21.17, V.A.C.C.P., provides:

“Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning or which include the sense of the statutory words.”

The indictment properly alleges all of the statutory elements of abduction. Moreover, it correctly alleges the necessary culpable mental states, see V.T.C.A., Penal Code, Sections 6.02, 6.03, and the required intent to violate and abuse sexually the complainant, see Article 21.04, V.A.C.C.P. The particular intent to violate and sexually abuse complainant is an element of aggravated kidnapping only. Section 20.04, supra. Thus, the indictment, taken as a whole, sufficiently charges the offense of aggravated kidnapping.

There was no exception or motion to quash the indictment. Appellant and his attorney knew he was charged with aggravated kidnapping and to this day neither has claimed they had no notice of what appellant had to defend against.

The judgment should be affirmed.

      . See V.T.C.A., Penal Code, Secs. 6.02, 6.03.

      . See Art. 21.05, Vernon’s Ann. C.C.P.

      . In Cannon we held that “an indictment for burglary need not allege that the entry was with the intent to commit theft or a named felony, provided that it alleges instead the elements of the felony or theft in the indictment.”

      . In Suarez the defendant was convicted of the felony offense of delivery of marihuana. The indictment failed to allege a felony offense but was sufficient to allege the misdemeanor offense of delivery of marihuana. We held that the proper disposition of the case was to “reverse the judgment of conviction for the felony offense and . remand the cause to the trial court to be transferred to a court having jurisdiction of the misdemeanor offense of the delivery of marihuana.” Here, as in Suarez, this holding does not preclude the State from a valid re-indictment. Id., at n.l.


source: Caselaw Access Project

author: DALLY, Commissioner.

license: Public Domain

text:
    Glenn Morris CAIN, Appellant, v. The STATE of Texas, Appellee.
    No. 53421.
    Court of Criminal Appeals of Texas.
    June 8, 1977.
    Calvin A. Hartmann, on appeal only, David B. Ziegler, on appeal only, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and John B. Holmes, Jr., Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of rape under the former Penal Code; the punishment is imprisonment for 50 years.

Appellant contends the evidence is insufficient to support the conviction. We must agree. This record presents unusual facts showing the commission of a number of closely related, interwoven criminal offenses. Although the evidence may be sufficient to prove the appellant was guilty of kidnapping, robbery, burglary, theft, assaults, and of being an accomplice in the offense of rape, the evidence is insufficient to show the appellant committed the offense of rape or that he was guilty of the offense as a principal. The State’s predicament stems from the failure of a co-defendant to testify as it was expected he would. The State plead surprise and was permitted to impeach the accomplice witness, but this did not aid the State in proving necessary elements of the offense.

The prosecutrix and her date, Raymond Rubach, went to a nightclub in Houston on February 24,1973. As they got out of their car at the club a man approached Rubach and asked for a ride. Rubach refused and the man pulled a gun on him. At the same time another man approached the prosecu-trix on the other side of the car with a gun. The prosecutrix identified the appellant as the man who held a gun on her. She could not identify the man who first approached Rubach and Rubach could not identify either of the men. Rubach and the prosecu-trix were forced back into Rubach’s car and appellant and the other man got into the back seat. The abductors ordered Rubach to turn the rear view mirror up and both he and the prosecutrix were ordered not to turn around. Later, Rubach and the prose-cutrix were placed in the back seat of the car and told to keep their heads down.

Rubach and the prosecutrix were taken to an unfurnished garage apartment where the abductors were joined by two more men. This apartment was the appellant’s apartment located on Binz Street. The prosecutrix and Rubach were tied up, blindfolded, and robbed of their money. The abductors also had another hostage at appellant’s apartment named Thomas Flowers. Soon after the prosecutrix and Rubach were brought to appellant’s apartment, Flowers was released. Rubach was struck on the head by the abductors when he told them he did not have any more money. The abductors then struck the prosecutrix on the head, which caused her to bleed “real bad.” About an hour later, Rubach and the prosecutrix, still blindfolded, were driven to another location.

The second location was shown to be an unoccupied, run-down shack located on Lydia Street in Houston. Rubach, still blindfolded, was placed in a corner of the shack, tied up, and someone held a shotgun on him. The prosecutrix, still blindfolded, was then brought into the shack and told to take her clothes off. When she refused, her clothes were ripped off. The prosecutrix was raped three or four times by the men. She was also forced to perform acts of sodomy on more than one of the men. A gun was held against the head of the prose-cutrix and she was told not to struggle. She could not identify the appellant or any of the men who raped her because she was blindfolded. She also could not determine whether appellant was present at the shack on Lydia. Rubach also could not determine if the appellant was present at the shack or whether he participated in the rape.

After the men had raped the prosecutrix, they left her and Rubach in the shack. After Rubach and the prosecutrix untied themselves, one of the men involved in the offense, Curtis Johnson, came back to the shack to help them. The prosecutrix, Ru-bach, and Johnson walked to a service station and called the police.

Thomas Flowers testified that he was abducted and robbed by three black men on February 24, 1973, in Houston. He was taken in his own car to appellant’s garage apartment on Binz Street where he was tied up, blindfolded, and gagged. Flowers was held for approximately twenty-four hours at the appellant’s apartment. During this time the abductors burglarized Flowers’ apartment. The men took several items of property including a guitar, amplifier, and some stereo equipment. Flowers later recovered some of the property at a pawn shop called Money Unlimited. Flowers testified that while he was being held at the garage apartment the abductors brought in a man and a woman against their will. Flowers said that the man’s name was Raymond. Flowers was released shortly after the man and woman were brought to the apartment.

Donald Fantish testified that he was the owner of the Money Unlimited pawn shop. On February 24,1973, four black men came to his pawn shop to sell some property. Fantish identified the appellant as one of the men from whom he bought the property. He also identified Curtis Johnson as another of the four men. The property the four men sold to Fantish was some of the property taken from Flowers’ apartment.

Louisiana State Trooper Joseph Bertrand testified that he investigated a traffic accident in Louisiana on February 25, 1973. Bertrand identified the appellant as one of the persons involved in the accident. The appellant was driving a 1972 gold Pontiac with Texas license plates number SJZ 867; this was the car taken from Rubach. The appellant was the only person in the Pontiac, which was severely damaged in the accident. Bertrand found a revolver in the trunk of the Pontiac appellant was driving. Both Rubach and the prosecutrix testified that this revolver was the same or a weapon similar to the one that was used by the men who first abducted them at the nightclub.

Curtis Johnson testified as a witness for the State. On February 23, 1973, Johnson met the appellant at his garage apartment on Binz Street. Johnson was present when Thomas Flowers was abducted and robbed, but said he was not armed and did not participate in abducting Flowers. He testified that a man named Norman Gladney and two other men he did not know abducted Flowers. He said the appellant was not with them when they abducted Flowers, but the appellant was at the garage apartment when they brought Flowers back. The appellant was with Johnson and the other men when they burglarized Flowers’ apartment and was also present when they sold Flowers’ property at the pawn shop.

Johnson testified that he was at the appellant’s garage apartment when the appellant and Gladney brought Rubach and the prosecutrix there. Johnson went with the men when they took Rubach and the prose-cutrix to the shack on Lydia Street. Johnson said he did not know who was in the car with Rubach and the prosecutrix when they drove to the shack because he rode in a second car. Rubach and the prosecutrix, however, had both testified earlier that Johnson was the driver of the car they were in. Johnson was present in the shack when the prosecutrix was raped, but denied that he participated in the rape. He stated that the shack did not have lights and that it was still dark. Johnson said he did not know if the appellant was present at the shack because it was dark. Johnson stated that he did not see the appellant at the shack.

Under the law of the former Penal Code defining principals, Articles 65-69, V.A.P.C. (1925), there are six different fact situations, explained in Middleton v. State, 86 Tex.Cr. 307, 217 S.W. 1046 (Tex.Cr.App.1919), in which one may be guilty as a principal to a felony offense. They are:

“(1) When A. actually commits the offense, but B. is present, knowing the unlawful intent, and aids by acts or encourages by words.
“(2) When A. actually commits the offense, but B. keeps watch, so as to prevent the interruption of A.
“(3) When A. is actually executing the unlawful act, and B. engages in procuring aid, arms, or means of any kind to assist while A. executes said unlawful act.
“(4) When A. actually commits the offense but B., at the time of such commission, is endeavoring to secure the safety or concealment of A., or of A. and B.
“(5) When A. employs an innocent agent, or by indirect means causes the injury, or brings about the commission of the offense.
“(6) When A. advises or agrees to the commission of the offense, and is present when the same is committed, whether he aid or not.”

The court further explained:

“Of these six statutory ways in which parties may act together and be principal offenders, it will be seen that two only require the presence of the coprincipal with the one actually doing the criminal act, while four make him a principal though physically absent from the scene of the crime; but no confusion will arise if we keep clearly before us the underlying principle that in every case, no matter what phase of the law is involved, the evidence must show, and the charge of the trial court submit, that at the time of the commission of the offense the parties must be acting together, each doing some part in the execution of the common purpose. As is well set forth in the Cook Case [Cook v. State], 14 Tex.App. 96, just here lies the line of cleavage between accomplices and principals; that is, that unless the accused be then actually doing something which associates him with the execution of the unlawful act at the very time it is done, he would not be a principal. It would be immaterial which one of the six methods mentioned he pursues, but he must be doing something in some one of the ways enumerated.” Middleton v. State, supra. (Emphasis added.)

To be guilty of a felony as a principal, a defendant must be actually present at the time of the commission of the offense or, if not present, he must be actively engaged in the furtherance of the common purpose and design at some other place. Robinson v. State, 493 S.W.2d 780 (Tex.Cr.App.1973); Barnett v. State, 106 Tex.Cr.R. 179, 291 S.W. 540 (1927).

In this case' the record shows that the appellant and Norman Gladney kidnapped Rubach and the prosecutrix. The evidence also shows that the appellant was in possession of Rubach’s car the day after the rape occurred. However, no witness could place the appellant at the shack where the prosecutrix was raped. Nor could any witness testify as to what the appellant was doing at the time of the rape.

This offense occurred prior to the effective date of the new Penal Code which has abolished the distinctions between principals and accomplices. V.T.C.A. Penal Code, Section 7.01(c). While the facts show that appellant was an accomplice, under the former Penal Code an accomplice could not be convicted as a principal. McClelland v. State, 373 S.W.2d 674 (Tex.Cr.App.1963); Anzualda v. State, 115 Tex.Cr.R. 509, 27 S.W.2d 231 (1930). The evidence is insufficient to support appellant’s conviction for rape.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


author: BROWN, Commissioner.

text:
    Mike EDWARDS, Appellant, v. The STATE of Texas, Appellee.
    No. 53424.
    Court of Criminal Appeals of Texas.
    June 8, 1977.

      Bob C. Hunt, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James T. Jordan and John B. Holmes, Jr., Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for barratry under V.T.C.A. Penal Code, Section 38.12. Appellant was tried before a jury and punishment was assessed by the court at ninety days in the Harris County Jail.

The sufficiency of the evidence is not challenged. Briefly stated, the record shows that appellant contacted Gail Stevens about the possibility of prosecuting a claim Miss Stevens had for injuries to her back. Appellant represented to Miss Stevens that she had a good cause of action for her injuries and told her that he would supply her with an attorney who would handle her law suit for a contingency fee. Miss Stevens and her father notified the Harris County District Attorney's office about the incident and they agreed to permit an investigator to make tape recordings of subsequent conversations with appellant during which he arranged for a meeting between Miss Stevens and the attorney.

In three grounds of error appellant contends that the trial court erred in admitting into evidence a tape recording made at Miss Stevens’ apartment. It is appellant’s contention that the State failed to lay the proper predicate for the introduction of the tape recording. Ground of error one alleges a failure to show “that the recording device was capable of taking testimony.” Ground of error two alleges a failure to show “that the operator of the device was competent.” Ground of error three alleges that the voices on the tape were not identified.

This Court has not yet established what constitutes a proper foundation for the admission of a sound recording, although such recordings have generally been admitted. See Thrush v. State, 515 S.W.2d 122 (Tex.Cr.App.1974); Yates v. State, 509 S.W.2d 600 (Tex.Cr.App.1974); Hutson v. State, 164 Tex.Cr.R. 24, 296 S.W.2d 245 (Tex.Cr.App.1956).

Appellant relies on Cummings v. Jess Edwards, Inc., 445 S.W.2d 767 (Tex.Civ.App.—Corpus Christi 1969, writ ref’d n. r. e.) which sets out a seven-pronged predicate recommended in 58 A.L.R.2d 1024, “Admissibility of sound recordings in evidence,” Sec. 2, pp. 1027-8, as follows:

“ * * * The cases are in general agreement as to what constitutes a proper foundation for the admission of a sound recording. They also indicate a reasonably strict adherence to the rules prescribed for testing the admissibility of recordings, which have been outlined as follows: (1) a showing that the recording device was capable of taking testimony, (2) a showing that the operator of the device was competent, (3) establishment of the authenticity and correctness of the recording, (4) a showing that changes, additions, or deletions have not been made, (5) a showing of the manner of the preservation of the recording, (6) identification of the speakers, and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.”

The Cummings decision and an earlier decision by this Court, Schwartz v. State, 158 Tex.Cr.R. 171, 246 S.W.2d 174 (Tex.Cr.App.1952), both indicate that the admission of tape recordings is discretionary with the trial court.

We hold that the requirements as set out above are applicable in criminal trials as well. However, we also find that at least some of the requirements can be inferred from the testimony and need not be shown with the same particularity required for admission of other mechanically acquired evidence, such as the results of a breathalyzer test.

For example, if a person who is in a position to hear a conversation testifies that he made a tape recording of that conversation and that he had listened to the tape recording and found it to coincide with what he heard the parties say, then it goes without saying that the recording device was “capable of taking testimony” and that the “operator of the device was competent.” The voluntary nature of the conversation can also be inferred from the facts and circumstances of each case. Admission of the results of a breathalyzer, on the other hand, requires a more specific statement that the device was maintained properly, contained the proper compound of chemicals, and that the operator was properly trained. Bumpus v. State, 509 S.W.2d 359 (Tex.Cr.App.1974); French v. State, 484 S.W.2d 716 (Tex.Cr.App.1972).

In Hutson v. State, supra, the trial court held a hearing out of the presence of the jury to determine the admissibility of a tape recording. The County Attorney testified that the recording device was running when the parties to the conversation entered his office, that he left the device running to see that no testimony was changed, that the recording was made while they were sitting there and that the recording had been in his possession since that time and had not been changed or altered. He also identified the voices of the parties. Based on such testimony, the trial court admitted the tape.

In the instant case William Hub-bell testified that he was an investigator for the Harris County District Attorney’s office and that he was assigned to record a conversation in Miss Stevens’ apartment between her and the appellant. He stated that he installed the recording device in the apartment utility room with Miss Stevens’ permission. He further stated that he installed a listening device inside the apartment and from his vantage point in the utility room he could hear the voices of persons anywhere in the apartment. He stated that Miss Stevens, her father and her roommate were all present in the apartment when a man entered and identified himself as Mike Edwards, the appellant. Hubbell stated that he heard the subsequent conversation between the parties and recorded it. He further stated that since that date he had played the tape back and heard the conversation on at least four different occasions. He verified that the tape accurately and fairly recorded the conversations he heard. He stated that he made the tape on an unused reel of recording tape that he removed from a sealed container. He further stated that he personally removed the tape from the recording device after recording the conversation in Miss Stevens’ apartment and that the tape had been in his possession and custody since that time and had not been altered in any way.

Miss Stevens and her father both testified that they were in the apartment and talked with appellant on the day in question. They both stated that they had heard the tape recording of that conversation and that it accurately recorded the conversation and had not been altered. They both identified appellant as the person who was in the apartment on the day of the conversation and both stated that he presented to them the idea that Miss Stevens had a valid claim for her injuries and that he knew a lawyer who would prosecute the suit for her. A photograph showing appellant at the door of Miss Stevens’ apartment was also introduced into evidence.

Appellant presented no defense and does not challenge the sufficiency of the evidence. On cross-examination of Miss Stevens it was developed that she was initially contacted by a Mike Hendricks; however, it was shown that appellant used that name in his capacity as an investigator. Miss Stevens and her father both positively identified appellant as the person who came to her apartment on the day in question.

In accordance with the discussion set out above, we find that Hubbell’s testimony establishes that the “recording device was capable of taking testimony” and that “the operator of the device was competent.” His testimony also establishes the authenticity of the tape and the fact that it had not been altered or tampered with. He also testified that he had had the tape in his custody throughout the time preceding trial, which satisfies the requirement that the “manner of the preservation of the recording” be shown. We further find that the testimony of Miss Stevens and her father establishes the identity of the speakers. Finally, viewing all of the testimony, we find that the conversation was voluntarily elicited and was made without inducement. The trial court properly admitted the tape recording into evidence.

Appellant’s three grounds of error are overruled.

The judgment is affirmed.

Opinion approved by the Court.


author: DAVIS, Commissioner.

text:
    Salvador Pina MARTINEZ, Jr., Appellant, v. The STATE of Texas, Appellee.
    Nos. 54521, 54522.
    Court of Criminal Appeals of Texas.
    June 8, 1977.
    Frank D. Johnson, San Antonio, on ap' peal only, for appellant.
    Ted Butler, Dist. Atty., Stephen P. Allison and H. Wayne Campbell, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeals are taken from convictions for forgery. Both cases were tried before the court upon pleas of guilty and punishment was assessed at ten years in each case.

Appellant challenges the sufficiency of the evidence to support the convictions, urging in each case that “the check set out in the indictment could not be the subject of forgery because it shows on its face to have already been honored by the bank upon which it was drawn” and “the check set out by its tenor in the indictment contains notations which the evidence shows were made after the check was passed.”

Appellant points to the indictments, both of which set forth what appears to be photocopies of the checks in question. Specifically, appellant calls our attention to a rectangle approximately 2¼ inches by 1½ inches containing the notation, “Paid Bexar County National Bank, San Antonio, Texas” on each check set forth in the indictments. There appear to be dates within each rectangle; however, we find, as appellant suggests, that such dates are illegible.

Appellant urges that under the decisions in Payne v. State, Tex.Cr.App., 391 S.W.2d 53, and Acuff v. State, Tex.Civ.App., 429 S.W.2d 888, the checks as they are set out in the indictments are legal nullities and therefore not the subjects of forgery.

In Payne, where conviction was for passing as true a forged instrument in writing, the check set forth in the indictment showed upon its face the word “FORGERY.” In Payne, the Court said:

“Appellant correctly, we think, contends that the instrument set out in the indictment could not be the subject of forgery or of passing a forged instrument because it shows on its face to be a forged instrument.
* * * * * *
“Assuming that the check stamped ‘Forgery’ could be the subject of forgery and that a conviction for passing it as true could be sustained, and further assuming that the word ‘Forgery’ was not on the face of the check at the time it was passed, then this conviction cannot stand because of the variance between the check identified and introduced as that passed and the check set out in the indictment.’’

In Acuff, where the instrument set out in the indictment was a check on the face of which was the word “Forged,” reversal resulted, the opinion citing Payne for the proposition that where the instrument set out in the indictment shows on its face to be a forged instrument, it could not be the subject of a forgery.

We have reviewed the records in Payne and Acuff which are before us as the result of appeals in those cases and find that in both of those cases the defendants entered pleas of not guilty before a jury.

In the instant case, appellant entered pleas of guilty and executed under oath written waivers and consent to stipulations. In both cases, appellant made judicial written confession in which he admitted the truth of the allegations in the indictments.

Thus, unlike Payne and Acuff, where pleas of not guilty were entered and the burden was upon the State to prove all the allegations in the indictments, the appellant in the instant cases made judicial written confessions in which he admitted the truth of the allegations in the indictments. In Byrom v. State, Tex.Cr.App., 528 S.W.2d 224, where appeal was had upon a conviction for forgery and defendant had made a judicial confession admitting the truth of the allegation in the indictment, this Court held the judicial confession, standing alone, was sufficient to support the plea of guilty. See Henderson v. State, Tex.Cr.App., 519 S.W.2d 654; Cevalles v. State, Tex.Cr.App., 513 S.W.2d 865; Battiste v. State, Tex.Cr.App., 485 S.W.2d 781.

Of course, the indictment must aver the elements of the offense for a judicial confession admitting the allegations in the indictment to support the conviction.

Except for the variance in dates on which the offenses were alleged to have occurred, both indictments recite in pertinent part that appellant

“. . . did then and there knowingly and intentionally with intent to defraud and harm another, PASS TO JESSE SALDIVAR a CHECK that had been MADE, EXECUTED AND COMPLETED so that it purported to be the act of another who did not authorize the act, and the said defendant knew said CHECK was forged. . . ,”

The indictments averred all the elements of the offense of forgery under V.T.C.A., Penal Code, Sec. 32.21, and appellant, in his judicial confessions, admitted the truth of all the allegations. The question then becomes one of whether the word “Paid” appearing on the checks as they were set out in the indictments rendered the indictments void. The instant prosecution was brought under the new Penal Code, Sec. 32.21(a), supra, providing that a writing which is the subject of a forgery is defined as follows in pertinent part:

“(2) Writing includes:
(A) printing or another method of recording information; . . . .”

Under former Penal Code Art. 979, V.A. P.C., the instrument which was the subject of the forgery must have been made “. in such manner that the false instrument so made (if the same were true) have created, increased, diminished, discharged or defeated any pecuniary obligation, or would have transferred, or in any manner have affected any property whatever.” Under the former Code, Art. 989, V.A.P.C. defined “pecuniary obligation” as “every instrument having money for its object, and every obligation for the breach of which a civil action for damages may be lawfully brought.”

It follows that the offense of forgery as same is defined under Sec. 32.21, supra, does not require that the instrument in writing be such as to create, increase, diminish, discharge or defeat any pecuniary obligation. See Practice Commentary to Sec. 32.21, supra.

While an instrument with “Forgery” stamped on it could not have been the subject of forgery under the former Penal Code in that it could not create or defeat a pecuniary obligation, no such requirement is made by Sec. 32.21, supra, under which prosecution was brought in the instant cases. We reject appellant’s contention that instruments with “Paid” on the face of them cannot be the subject of forgery.

Appellant urges further that the State has not proven that appellant knew the checks were forged. See Stuebgen v. State, Tex.Cr.App., 547 S.W.2d 29.

A review of the indictments reflects that in each instance they alleged that appellant “. . . knew said check was forged.” As heretofore noted, appellant made judicial confessions in which he admitted the truth of the allegations in the indictments.

With respect to appellant’s contention that there is a variance between the proof and the allegations in the indictment in that the evidence shows notations on the checks which were made after the checks were passed, we find that the photocopies of the checks offered into evidence by way of stipulation appear identical to the ones set forth in the indictments. The only difference we are able to note is that the exhibits appear to be somewhat better copies of the checks and the dates appearing within the “Paid” rectangle on the checks may be slightly more legible. Further, it must be remembered that appellant’s judicial confessions admitted the truth of all allegations in the indictments.

The judgments are affirmed.

Opinion approved by the Court.

      . The instruments alleged to have been passed which were set forth in the indictments both list the maker as Dr. Manuel C. Ortiz and the payee as Samuel Montez. One check for $150.00, dated 1-29-76, contains the notation, “paint contract,” and the check dated 2-14 — 76, in the amount of $140.25, contains the notation, “contract labor.”


author: KEITH, Justice. STEPHENSON, Justice, DIES, Chief Justice,

text:
    The ATCHISON, TOPEKA & SANTA FE RAILWAY CO., Appellant, v. Allen J. SCOTT, Appellee.
    No. 7791.
    Court of Civil Appeals of Texas, Beaumont.
    Jan. 20, 1977.
    Rehearing Denied Feb. 17, 1977.
    Chilton O’Brien, Beaumont, for appellant.
    J. Donald Bowen, Houston, for appellee.
   KEITH, Justice.

On rehearing, our prior opinion is withdrawn and this opinion substituted in lieu thereof.

Defendant below appeals from an adverse judgment rendered after a jury trial. Plaintiff below brought suit under the Federal Employers’ Liability Act [45 U.S.C.A. § 51] to recover for personal injuries sustained while in the course and scope of his employment with defendant when a train derailed.

Plaintiff alleged, in very general terms, that his injuries were caused in whole or in part by the negligence of the defendant in failing to provide him with a reasonably safe place to work. Three specific allegations of negligence were included in the short quotation found in the margin.

Defendant answered by pleading that the washout of its tracks was caused by an Act of God in that there was an unprecedented rainfall in a small geographical area which caused the water to rise above the level of the tracks. Although defendant offered proof of this defense, as mentioned hereafter, requested instructions and issues on such defense and objected to the charge for the failure to submit such issues, the Court refused to submit any issue which would have enabled the jury to find that the defense was or was not established.

Wade Sheldon, Jr., the conductor of the train, said the derailment occurred as the train passed Mile Post 46, three miles from Plantersville, at about 9 p. m. While it was not raining then, it had been raining earlier. He had no reason to expect a washout on the track where the derailment occurred. After the accident he saw that a “big portion of the foundation of the track was washed away.” This was beneath the rails, and the rails were swinging; that is, the ballast and the roadbed had been washed out underneath the rails. While there was a radio in the unit, they received no communication from Somerville or Silsbee (both of which had communication facilities) as to a possible washout.

Plaintiff was in a Somerville motel when he was called to work — about an hour and a half before leaving Somerville — when he heard a storm warning over television for that area. Somerville was having a heavy downpour at that time. The train crew received no warning in advance of the derailment.

J. D. Shepherd was the train’s engineer. As he approached the place of the accident, he thought, “it didn’t look right”; so, he put the train in emergency stop. No warning was given before then. The roadbed there is four or five feet above ground level. A bridge spans what is usually a dry creek. Previously, he had seen water in the creek, but it had never backed up except this night. It was a good track there. After the wreck the washout appeared to be about fifteen feet wide. The bridge that night did not take care of the volume of water, and the cause was clearly a washout.

Jerry D. Waits of Brenham was the track supervisor. The track at Mile Post 46 (scene of accident) was his responsibility. He had inspected this track on the morning of the accident and noticed nothing unusual. He had received no reports of heavy rain that trip, but previously weather reports were telephoned by the chief dispatcher at Temple. If he finds something wrong at a location, he can “flag” the location or use his radio. He was called that night after the accident had occurred.

Morgan Price, a resident of Plantersville for 55 years, said they had more than six inches of rain on the day of the accident. It fell faster in a shorter period of time than any he had previously witnessed. A. C. Coumes, a rancher, also detailed the “blinding rain”, and said that water rose four feet in fifteen minutes.

Louis H. McCurry, assistant engineer for the defendant, says in building a bridge defendant uses a one-hundred-year frequency of rainfall runoffs, while the Texas Highway Department uses a fifty-year frequency. The bridge involved was designed to discharge eleven thousand cubic feet of water per second.

In 1945, some water overflowed the top of the track so the track was raised. On the day of this derailment, the rainfall exceeded the capacity of the bridge causing the washout. This rain was substantially more than one likely to occur once in one hundred years. His rainfall frequency calculation was based on maps and prior data.

Joseph L. Goldman, a meteorologist for the Institute for Storm Research in Houston, made a study of the rainstorm involved in this accident. This rain began at 5 p. m. and lasted until 7:30 p. m. For thirty minutes, a rainfall of 3.6 inches is expected to occur once every hundred years. A study of Galveston radar showed this rain equaled that rate. He testified, “I think we can ' safely say this is truly a very extraordinary rainfall rate.”

Special Issue Number One is quoted:

“Do you find from a preponderance of the evidence that on the occasion in question the railroad was negligent?”

To which the jury responded: “We do.” In answer to the second issue, the jury found that “such negligence” was a cause “in whole or in part” of the injuries sustained by plaintiff. The jury failed to find any violation of the Boiler Inspection Act, so plaintiff’s judgment rests entirely and exclusively upon the finding in issue number one.

As we have pointed out earlier, plaintiff pleaded not only the violation of the Boiler Inspection Act but had two other factual allegations: inadequacy of the bridge as a violation of Art. 6328, Tex.Rev. Civ.Stat.Ann. (1926), and old and rotten ties in the track. Plaintiff offered no evidence as to the condition of the ties and his evidence with reference to the adequacy of the bridge was based, almost exclusively, upon cross-examination of the witnesses brought by the railroad. He spent a large amount of time attempting to prove a penalty violation under the federal act but the jury did not find for him on this facet of the case.

Defendant’s point number seven spells out the present complaint and the procedural base therefor:

“The error of the trial court in submitting to the jury Special Issue No. 1 over the objection that such issue was a global issue which permitted the jury to make a finding of negligence based upon facts which were not pled and upon which no evidence had been introduced or upon facts pled but upon which no evidence had been introduced.”

Plaintiff, relying almost exclusively upon Members Mutual Insurance Co. v. Muekelroy, 523 S.W.2d 77 (Tex.Civ.App.—Houston [1st Dist.] 1975, writ ref’d n. r. e.), contends that the trial court did not abuse its discretion in using the “broad form” of submission. After careful consideration of the authorities on the subject, we disagree and sustain defendant’s point number seven.

Muckelroy relied, to a large extent, upon language found in Mobil Chemical Company v. Bell, 517 S.W.2d 245, 255 (Tex.1974) with a quotation to be found at 523 S.W.2d at 81. This language is not appropriate to the case under review. While there were several specific acts of negligence alleged, our plaintiff did not introduce “evidence as to each”; thus, the language of Justice McGee is not in point.

We have carefully studied the law review article authored by Mr. Justice Pope [27 Sw.LJ. 577 (1973)] and remain convinced that the trial court, in this case and under the facts which we review, abused its discretion in submitting the broad issue.

Indeed, the language found in the opinion on rehearing in Muckelroy lends support to our conclusion. The Houston Court felt called upon to clarify its earlier opinion and we now hold in accordance with the iliuck-elroy “clarification”, that the trial court should have instructed the jury to limit its consideration to those acts of negligence which were pleaded and supported by evidence. Defendant’s point of error number seven is sustained.

We turn now to a consideration of defendant’s contention that the manner of submission of its defense of Act of God was erroneous. No one can seriously argue that plaintiff’s evidence as to Act of God was not sufficient to warrant submission of the issue under ordinary circumstances. Although requested, the trial court refused to submit an issue whereby the jury could find, or fail to find, that the occurrence was caused by an Act of God. Instead, an instruction was given which preceded the special issues in the charge. We quote the instruction in the margin. Defendant submitted a requested issue accompanied by an instruction which would have elicited a direct finding on the question. It also made specific objections to the court’s failure to submit the issue to the jury.

Plaintiff contends that no error is shown, arguing that the Act of God defense is simply an “inferential rebuttal issue” and such issues were condemned in Yarborough v. Berner, 467 S.W.2d 188 (Tex.1971), and Del Bosque v. Heitmann Bering-Cortes Company, 474 S.W.2d 450 (Tex.1971), as well as amended Tex.R.Civ.P. 277.

Both Rules 277 and 279 still require the submission of controlling issues made by the pleadings and the evidence. As counsel for the defendant complains:

“Giving them [the jury] a definition of ‘Act of God’ without telling them what the effect would be of a determination by them that Scott’s injuries were caused by the ‘Act of God’ was a useless procedure. * * * * * *
“As stated in the objection, there was no way for this jury to register their determination in regard to ‘Act of God’.”

Being of the opinion that the trial court erred in the manner of submitting the defense, we sustain defendant’s point of error number six.

We have grave doubt as to the factual sufficiency of the evidence to support plaintiff’s recovery herein when tested under the usual rules as set out in Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). However, cases arising under the Federal Employers’ Liability Act are determined under a different standard. Texas and Pacific Railway Company v. Roberts, 481 S.W.2d 798, 800 (Tex.1972). While federal law governs substantive rights of the parties in F.E.L.A. cases, such cases filed in our state courts are tried “in accordance with our own Rules of Civil Procedure.” Missouri Pacific Railroad Company v. Cross, 501 S.W.2d 868, 870 (Tex.1973).

We find no merit to the remaining points of error brought forward. Because of the errors discussed herein, the judgment of the trial court is reversed and the cause is remanded.

REVERSED AND REMANDED.

STEPHENSON, Justice,

concurring.

I concur with the opinion written by Justice Keith and add an additional reason for sustaining defendant’s point of error number seven.

The Constitution of the State of Texas, as originally written, and not amended, provides in part in Art. V, § 13 as follows:

“. . . In trials of civil cases . in the District Courts, nine members of the jury, concurring, may render a verdict . . . .”

I attach real significance to the word “concurrence” as used in this constitutional provision and give it its usual meaning, that is, to unite, combine and agree.

The plaintiff in the case before us, as stated in the majority opinion, alleged among other things that defendant was negligent in the construction, materials and maintenance of the bed and ties under the track in question. This jury was asked only whether the defendant was negligent on the occasion in question. It is obvious that it is impossible to ascertain whether there was any “concurrence” upon the part of the jury upon a particular act of negligence.

The Supreme Court of this state, in Trinity & B. V. Ry. Co. v. Geary, 107 Tex. 11, 172 S.W. 545 (1915), made it crystal clear that “concurrence” meant the same thing to it as I have indicated above. In this case it is stated that the trial court submitted two grounds of negligence to the jury, and the court’s charge permitted the jury to allow the plaintiff to recover upon either ground separately or upon the combined grounds together. The form of the jury answer showed the recovery was upon the combined grounds. The case was reversed and remanded with this statement:

“Interpreted by the charge, the verdict clearly expresses that a part of the jury found for plaintiff under the first ground, and part under the third ground. It is manifest that some of the jury based their finding on the first, and some on the third ground, but all did not agree upon either. There being no ‘concurrence’ of all of the members of the jury on either ground of negligence, the action of the district court in receiving the verdict was in direct disregard of the statute.”

I have found no case in this state which indicates to me that the law of Geary, supra, is no longer the law in this state. To paraphrase Justice Norvell in Reed v. Buck, 370 S.W.2d 867 (Tex.1963), that ancient cases, like old soldiers, do not just fade away, but remain decisions of the Supreme Court and unless there is some good reason for overruling them, they should not be disregarded.

In my humble opinion, the constitution of this state requires “concurrence” by the jury, which is not reflected in this record before us.

DIES, Chief Justice,

dissenting.

With respect, I dissent. I believe Tex.R. Civ.P. 277 now gives the trial court discretion to submit the issues as done in this case. Certainly, Members Mutual Insurance Co. v. Muckelroy, 523 S.W.2d 77 (Tex.Civ.App.—Houston [1st Dist.] 1975, writ ref’d n. r. e.), expressly so holds. Moreover, the law review article by Mr. Justice Pope and Mr. Lowerre [27 Sw.L.J. 577 at 581 (1973)] explains the scope of the Rule 277 as follows:

“Let us suppose a case in which the judge submits the issue, ‘On the occasion in question, was the defendant negligent?’ followed by the question conditioned upon the first answer, ‘On the occasion in question, was such negligence a proximate cause of the occurrence in question?’ Such a broad submission boggles the mind of Texas practitioners who have lived under Fox v. Dallas Hotel Co. [111 Tex. 461, 240 S.W. 517] for half a century. On the other hand, most jurisdictions would not regard such a submission as strange at all, and it would seem that the revised rule would permit that form of submission.” (Emphasis supplied)
The authors continued, supra at 590: “The rule permits the trial court to submit the negligence and contributory negligence issues as the controlling issues, or to submit these issues more specifically.”

I agree with the majority opinion that the standard of proof is different in an F.E.L.A. case. See Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 90 L.Ed.2d 916 (1945); Steele v. Louisville & Nashville R. Co., 506 F.2d 315 (6th Cir. 1974). Indeed, in Rogers v. Missouri Pac. Ry. Co., 352 U.S. 500, 507, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957), we find:

“Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on the grounds of probability, attribute the result to other causes, including the employee’s contributory negligence.”

I believe this is another reason why the form of submission used in this case is not improper.

As was said by our Supreme Court in Texas and Pacific Railway Company v. Roberts, 481 S.W.2d 798, 800 (Tex.1972):

“The purpose of the F.E.L.A. is to vest the jury with complete discretion on the factual issue of liability.
* * * * * *
“Stated another way, once the appellate court determines that the verdict is supported by some evidence about which reasonable minds could differ, the appellate court’s function is exhausted.”

      . “The track and supporting bed and ties were faulty in construction, materials and or maintenance since they allowed this train to detail on the occasion in question. Defendant also violated Article 6328 of Vernon’s Civil Statutes Annotated and such violation was negligence and was a cause, in whole or in part, of the accident and injuries to Plaintiff. In addition, Defendant violated the provisions of the Boiler Inspection Act [45 U.S.C.A. § 23] in that the engine Plaintiff was riding in was not safe, all of which was a cause in whole or in part of his injuries.”

      . In a proper case, we have no hesitancy in following the suggestions set out by Justices Pope and McGee in the respective publications noted earlier. See, e. g., Texas Gulf Sulphur Company v. Gladys City Company, 506 S.W.2d 281, 288-289 (Tex.Civ.App.—Beaumont 1974, writ ref’d n. r. e.).

      . “You are instructed that by the term ‘Act of God’ as used in this Charge is meant an accident that is due directly and exclusively to natural causes without human intervention and which no amount of foresight or care reasonably exercised could have prevented. The accident must be one occasioned by the violence of nature, and all human agency is to be excluded from creating or entering into the cause. The term implys the intervention of some cause not of human origin and not controlled by human power. If the derailment resulted in whole or in part from human negligence it was not an ‘Act of God’.
      “An occurrence may be an ‘Act of God’, that is, an event not caused in whole or in part by the negligence of any party.”


author: COLEMAN, Chief Justice.

text:
    ALLRIGHT, INC., Appellant, v. Carl SCHROEDER, Appellee.
    No. 16846.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 31, 1977.
    Rehearing Denied April 28, 1977.

      George M. Bishop, Houston, for appellant.
    Martin & Sperry; Malcolm Williams, Houston, for appellee.
   COLEMAN, Chief Justice.

Plaintiff brought suit alleging that as a result of defendant’s negligence, his automobile was stolen from a parking lot operated by defendant. Defendant appeals from an adverse judgment. We affirm.

On September 8, 1969, at approximately 1:30 p. m. plaintiff drove his automobile into defendant’s parking lot in downtown Houston. He turned possession of the automobile over to one of the defendant’s employees, who proceeded to park the automobile, and received a claim ticket from another employee. The words “We close at 6 o’clock p. m.” were printed on the ticket in heavy type. A copy of the ticket is attached as an appendix. It can be seen that the provision limiting liability would not be so readily noticed.

Signs were located throughout the parking lot which stated that the lot closed at 6 o’clock p. m. and that anyone returning after that time could pick up their keys at another parking lot operated by defendant at a specified location. Plaintiff had parked his automobile at this lot previously. He was aware at the time he left the car at the station on the occasion in question that the signs and the claim ticket said the lot closed at 6 o’clock.

When the plaintiff returned to the lot around midnight his car was missing. He inquired at defendant’s parking lot at 503 Fannin as to the whereabouts of his car. The attendant did not have his keys and knew nothing about the car. Plaintiff filed an offense report with the Houston police reporting the theft of his automobile, and the car was recovered on September 10 by the Harris County Sheriff’s Department. It had been partially “stripped” and suffered other damage.

The case was tried to a jury. In answer to the special issues submitted the jury found (1) the defendant’s negligence proximately caused plaintiff’s automobile to be stolen; (2) there was a risk of theft to plaintiff’s automobile after the lot closed for the day but this was not open and obvious to plaintiff; (3) the difference in market value of the car before and after the occurrence was $1,000.00. Judgment was rendered for the plaintiff in the amount of $1,000.00.

The defendant appeals complaining of the action of the trial court in refusing to submit the following requested issues:

“1. Do you find from a preponderance of the evidence that the parking lot in question closed at or about 6 o’clock p. m. on September 8, 1969?
“2. Do you find from a preponderance of the evidence that the plaintiff’s automobile was stolen by an unknown third party or parties after the lot had closed for the day on September 8, 1969?
“3. Do you find from a preponderance of the evidence that the plaintiff read the parking ticket marked in evidence as Plaintiff’s Exhibit 1 prior to leaving his automobile in the lot in question on September 8, 1969?”

The defendant contends that the fact issues submitted were designed to establish that the plaintiff knew the lot closed at 6 o’clock p. m. and that the plaintiff had impliedly agreed to the limitation of liability provision printed on the stub of the parking ticket. The defendant further asserts that once it is established that the defendant knew of the closing time a finding that the automobile was stolen after that time would establish a defense to the suit in that the operator of a parking lot would have no duty to protect the patron’s automobile after the time of closing. The defendant also contends that where a patron of a public parking lot is aware of a statement limiting liability which appears on the parking stub given him at the time he leaves his automobile in the lot, he impliedly agrees to this limitation as a provision of the contract of bailment.

Where parking lot owners attempt to limit liability by posting notices on the wall or by printing such a limitation on the claim check, the limitation must be called to the attention of the bailor before they may become part of the bailment contract. Allright, Inc. v. Elledge, 515 S.W.2d 266 (Tex.1974). These provisions are strictly construed against the bailee. Langford v. Nevin, 117 Tex. 130, 298 S.W. 536 (1927). In Elledge the Supreme Court held that a provision limiting liability of the parking lot owner to a maximum of $100.00 for loss of the bailor’s automobile due to theft occasioned by the ordinary negligence of the parking lot owner was enforceable where this provision was inserted in a written contract signed by the bailor.

In this case the limitation provision printed on the claim check was not specifically called to the attention of the bailor at the time he left his automobile at the parking lot. Plaintiff testified that at the time he left his automobile with the defendant he knew that the claim check stated that the lot closed at 6 o’clock. The defendant asserts that this evidence also raises an issue of fact as to whether or not the plaintiff had read the provision limiting liability printed on the claim check.

There is no evidence that the plaintiff read the material appearing on the claim check which was given him on September 8. He was asked: “All right. But, you were aware that those signs read, ‘Close at 6 o’clock p. m.’ when you drove up to the lot and when you left your car on it on September 8, weren’t you?” Answer: “I was aware that is what the sign read.” Question: “All right. And you were aware that is what the ticket said?” Answer: “Yes.” Obviously if the plaintiff was aware that the ticket said “Close at 6 o’clock p. m.” when he drove up to the lot that information was obtained from tickets which he had received on previous occasions when he parked at the lot. Plaintiff was never asked if he read the ticket, nor was he asked whether or not he knew of the provision limiting the liability of the lot owner.

We find no evidence that the plaintiff read the parking ticket which was introduced into evidence as Plaintiff’s Exhibit No. 1 prior to leaving his automobile in the lot on September 8, 1969. The trial court did not err in refusing to submit this issue.

Notice that a lot will “close at 6 o’clock p. m.” does not give notice that cars left after such time will be at the owner’s risk. Such a sign might be construed to mean that no automobiles would be accepted after 6 o’clock p. m. The fact that the closing time of the lot was posted on signs and was printed on the claim ticket does not exempt the operator of the lot from the exercise of ordinary care with respect to the safety of the property. McAshan v. Cavitt, 149 Tex. 147, 229 S.W.2d 1016 (1950); Ablon v. Hawker, 200 S.W.2d 265 (Tex.Civ.App.—Dallas 1947, writ ref’d n. r. e.).

The evidence does not establish whether the automobile was stolen before or after the lot had closed for the day on September 8, 1969. There was testimony that on special occasions the lot stayed open to a later hour. The plaintiff testified that he knew that the lot had been open after the 6 o’clock closing time on previous occasions and that he inquired of the attendant whether or not the lot would be open later on this night. He testified that he was told that it would be open later. There was testimony that it closed at 6:00 p. m. on September 8, 1969. When his car was recovered the trunk was open, his spare tire was missing, and the keys were found in the trunk. The defendant represented that the keys to the car would be in its custody until returned to the owner.

The requested issue related to an immaterial fact. The operator had a duty to remove the keys from the car at closing time and to transport them to the place mentioned in their sign. The trial court submitted a general negligence issue and the jury found that the defendant’s negligence proximately caused plaintiff’s automobile to be stolen.

In McAshan v. Cavitt, 149 Tex. 147, 229 S.W.2d 1016 (1950), with reference to a sign reading “Close at 6 p. m.” the Court stated:

“. . .It did not clearly give notice that the automobile if left later would be at the owner’s risk. It might be construed to mean that no automobiles would be accepted after 6 o’clock p. m. Such a sign will be strictly construed, and will not be interpreted as effecting an exemption from the exercise of ordinary care with respect to the safety of the property if any other meaning may reasonably be ascribed to the language employed. Langford v. Nevin, 117 Tex. 130, 138, 298 S.W. 536.”

Here the sign clearly represented to the patrons that some degree of care would be exercised for the safety of their automobiles after the closing time by reason of the notice that the car keys could be picked up after closing time at another location. No agreement that the bailment would expire at 6 o’clock p. m. will be implied from the fact that the plaintiff knew the signs stated that the lot would close at 6 o’clock p. m. under these circumstances.

The trial court did not err in refusing to submit the requested special issues since they inquired about immaterial facts.

The judgment is affirmed.

APPENDIX


author: CORNELIUS, Justice.

text:
    In the Matter of J. R. C.
    No. 8440.
    Court of Civil Appeals of Texas, Texarkana.
    April 26, 1977.
    Rehearing Denied May 24, 1977.

      Ronald Ned Dennis, Kirkpatrick, Grant, Dennis & Reed, Marshall, for appellant.
    Sam Baxter, Crim. Dist. Atty., Marshall, for appellee.
   CORNELIUS, Justice.

In March of 1974 appellant, a juvenile, was placed in detention upon allegations that he had murdered his mother. A hearing was first held to determine if he was mentally fit to answer for the offense and to proceed with either an adjudication hearing or a transfer hearing. He was determined to be fit, and upon petition of the district attorney filed pursuant to Section 54.02 of the Texas Family Code, a hearing was then held which resulted in the entry of an order waiving the juvenile court’s jurisdiction and transferring appellant to the district court for criminal proceedings. Upon appeal to this court, that order was reversed and the cause was remanded to the juvenile court for a new hearing. At the hearing on remand, appellant was again ordered transferred to the district court for criminal proceedings and appellant has perfected this appeal from that order.

Section 54.02 of the Texas Family Code provides in part as follows:

“54.02. Waiver of Jurisdiction and Discretionary Transfer to Criminal Court
(a) The juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for criminal proceedings if:
(1) the child is alleged to have violated a penal law of the grade of felony;
(2) the child was 15 years of age or older at the time he is alleged to have committed the offense and no adjudication hearing has been conducted concerning that offense; and
(3) after full investigation and hearing the juvenile court determines that because of the seriousness of the offense or the background of the child the welfare of the community requires criminal proceedings.
(f) In making the determination required by Subsection (a) of this section, the court shall consider, among other matters:
(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;
(2) whether the alleged offense was committed in an aggressive and premeditated manner;
(3) whether there is evidence on which a grand jury may be expected to return an indictment;
(4) the sophistication and maturity of the child;
(5) the record and previous history of the child; and
(6) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.”

In support of its order of transfer, the juvenile court made findings of fact to the effect that appellant was alleged to have committed the offense of murder at a time when he was over the age of 15 years but under the age of 18 years; the offense was against a person and was committed in an aggressive and premeditated manner; there was evidence on which a grand jury would be expected to return an indictment against appellant; appellant was of sufficient sophistication and maturity to be treated as an adult; the prospects for adequate protection of the public and the likelihood of rehabilitation of appellant by the use of procedures, services and facilities currently available were not good; and because of the seriousness of the offense and the background of the child, the welfare of the community required criminal proceedings. The transfer order contains similar findings, with references to the evidence upon which they are based, and sets forth fully the reasons for the court’s conclusions, as is required by Section 54.02(h) of the Family Code and by this court’s holding in the former appeal. In Re J.R.G., 522 S.W.2d 579 (Tex.Civ.App. Texarkana 1975, writ ref’d n. r. e.).

Appellant presents thirty points of error which contend generally that there is no evidence or insufficient evidence to support the court’s order; the court erred in considering psychological and social reports concerning appellant because said reports constituted hearsay and were not properly authenticated; the petition for transfer did not sufficiently describe the alleged offense; the summons to appellant and his attorney failed to comply with the mandatory requirements of Section 54.02(b); appellant was denied a speedy hearing as required by Section 53.05(b); and as the court’s order of transfer was not filed of record until after appellant had reached the age of 18, the court lost jurisdiction. The points will be grouped for discussion.

Points 19 and 20 concerning the admissibility of the psychological and social reports present a threshold question because much of the evidence relied upon by the juvenile court was based on such reports. It is asserted that the reports should not have been considered because they constitute hearsay themselves, they were based upon further hearsay, and they were not identified or authenticated by any witness. The contention concerning hearsay has no merit. Section 54.02(d) of the Family Code requires the juvenile court to order such reports, and Section 54.02(e) specifically provides that “. . . the court may consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses.” Although the reports, being ex parte and made out of court, were hearsay, the legislature is free to provide for the reception of hearsay statements into evidence when it is deemed necessary, and it has frequently created exceptions to the hearsay rule for such purposes. Such an exception is particularly appropriate in a proceeding such as this, where the purpose is not to determine guilt but merely to evaluate the background and maturity of the child in order to determine if he may be rehabilitated or if he should be subject to criminal proceedings. The rules of evidence have traditionally been relaxed in proceedings concerning the welfare of children. Matter of Honsaker, 539 S.W.2d 198 (Tex.Civ.App.Dallas 1976, writ ref’d n. r. e.); Brown v. Brown, 500 S.W.2d 210 (Tex.Civ.App. Texarkana 1973, no writ); Cooksey v. Perkins, 263 S.W.2d 952 (Tex.Civ.App. Galveston 1954, writ ref’d n. r. e.); Williams v. Guynes, 97 S.W.2d 988 (Tex.Civ.App. El Paso 1936, no writ). The objections to the reports on the ground that they were hearsay were therefore properly overruled. Matter of P.B.C., 538 S.W.2d 448 (Tex.Civ.App. El Paso 1976, no writ); Hughes v. State, 508 S.W.2d 167 (Tex.Civ.App. Corpus Christi 1974, writ ref’d n. r. e.); Hickman v. Smith, 238 S.W.2d 838 (Tex.Civ.App. Austin 1951, writ ref’d). It was not necessary that the introduction of the reports be accompanied by the testimony of the authors. Compare Matter of A.A.A., 528 S.W.2d 337 (Tex. Civ.App. Corpus Christi 1975, no writ). Neither did the failure to identify or authenticate the reports require their exclusion. On the joint motion of counsel for the State and appellant, the court ordered that appellant undergo psychiatric and psychological examinations by Dr. Littlejohn and by a representative of the Gregg-Harrison Mental Health and Mental Retardation Center, and that a social study be conducted by a representative of the Welfare Department. Reports of such examinations and social studies were ordered to be submitted directly to the court. The persons designated to make the reports were thus constituted officers or employees of the court to perform the services specified. Their reports were all personally signed and returned to the court as ordered. A court will judicially know the signatures of its own officers and employees, and further identification or authentication of their reports and official papers is not required. Strippelmann v. Clark, 11 Tex. 296 (1854); Cardenas v. State, 58 Tex.Cr.R. 109, 124 S.W. 953 (1910); 1 McCormick & Ray, Texas Evidence, Sec. 177 (2d ed. 1956). The procedure concerning the reports was not a denial of due process. Appellant’s attorney participated in the designation of the persons who prepared the reports. He had notice of their identity, and pursuant to the requirements of Section 54.02(e) of the Family Code he received copies of the reports prior to the hearing. If there was doubt as to the genuineness of the reports or a need to cross-examine the authors with reference thereto, he had ample opportunity to raise the issue and call the authors as witnesses or produce other evidence bearing upon the question.

Having determined that the reports were properly considered, we pass to a consideration of the sufficiency of the evidence to support the court’s order. In points 1 through 18 appellant argues there was no evidence or insufficient evidence to support the juvenile court’s findings relating tp those matters listed in Subsection (f) of Section 54.02 and particularly as to the seriousness of the offense and appellant’s background, appellant’s commission of the offense, the aggressive and premeditated nature of the offense, the sophistication and maturity of appellant, and appellant's best interests and the likelihood of successful rehabilitation. We make no attempt to mention all the evidence, but portions of it may be summarized as follows:

In the late afternoon of March 15, 1974, Deputy Goldman found appellant lying semi-conscious on the side of Highway 80 in Harrison County. He had scratches about his face and arms. Appellant related to Officer Goldman that he had been kidnapped by a large black male whom he indicated had attacked his mother. An investigation ensued which resulted in the discovery of the mother’s body which was lying on the bed in the family home. She had been strangled and a pillow case was still tightly tied around her neck. The screen door to the home was cut, apparently from the inside, but there was no other sign of a struggle. An autopsy performed on appellant’s mother revealed that she had been choked and strangled with such force that her trachea was crushed. A photograph of her body was placed in evidence. Without detailing the evidence, suffice it to say that the investigations by law enforcement officials produced circumstantial evidence which indicated that appellant was the perpetrator of the offense, and Officer Jordan testified that based upon the facts revealed in such investigations, a grand jury would likely indict the appellant for the murder of his mother. Deputy Anderson testified regarding the Harrison County Juvenile Detention Center and the lack of available facilities to the juvenile court for the rehabilitation of juvenile offenders.

The psychological and psychiatric reports and social studies were by Dr. Littlejohn, Tom Akins, a psychologist with the Gregg-Harrison Mental Health and Mental Retardation Center, Pamela Montgomery, supervisor of Protective Services, State Welfare Department, and Dr. Billy Floyd, a psychiatrist. In these reports appellant was variously described as having an anti-social personality, an amoral attitude with little regard for the demands of reality, inadequate emotional control, and a tendency to act impulsively without regard to the demands of reality. One of the reports characterized him as “selfish, callous, irresponsible, impulsive and unable to feel guilt or to learn from experiences or punishment. Prognosis for this type individual is guarded at best.” The reports further indicated that appellant is very intelligent and completely aware of right and wrong but loses control easily, and that his behavior “is marked by a history of explosive outbursts related to frustration of need gratification.” The social study gave a thorough and detailed account of appellant’s background and personal history.

We find the evidence sufficient to support the trial court’s findings. Although there was ample evidence on all the criteria enumerated in Subsection (f) of the statute, it should be borne in mind that Section 54.02 does not require that, in order for the juvenile court to waive its jurisdiction, all of the matters listed in Subsection (f) must be established. Rather, it provides that the court may waive its jurisdiction if it finds that, because of (1) the seriousness of the offense, or (2) the background of the child, the welfare of the community requires criminal proceedings instead of juvenile proceedings. The statute only directs that the juvenile court consider the matters listed under Subsection (f) in making its determination. See In Re W.R.M., 534 S.W.2d 178 (Tex.Civ.App. Eastland 1976, no writ). They are the criteria by which it may be determined if the juvenile court properly concluded that the seriousness of the offense or the background of the child required a transfer to criminal court. The juvenile court must consider those criteria in order that the appellate court may have a meaningful review of the basis upon which the conclusion was made, and can determine if the evidence so considered by the juvenile court does in fact justify the conclusion that a transfer is required. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84; In Re J.R.G., supra.

Appellant next complains that the petition for transfer was insufficient. The discretionary transfer article provides that the petition and notice requirements of Sections 53.04, 53.05, 53.06 and 53.07 of the Code must be satisfied. Section 53.04 provides in part that:

(d) The petition must state:
(1) with reasonable particularity the time, place, and manner of the acts alleged and the penal law or standard of conduct allegedly violated . .” (Emphasis supplied).

Appellee’s second amended petition, on which the hearing was held, alleged:

“That on or about the 15th day of March, 1974, said J_R_C_, in the County of Harrison and the State of Texas, did intentionally and knowingly cause the death of W-C-C-by strangling her by means unknown at this time.”

Section 19.02 of the Texas Penal Code, effective January 1, 1974, provides that one commits an offense if he “intentionally or knowingly causes the death of an individual.” Thus, the petition described the “standard of conduct allegedly violated” as required by Section 53.04(d)(1). It was not necessary to go further and designate the section of the Penal Code which condemns such conduct. Even the strict rules relating to criminal indictments do not require a specification of the Penal Code section when the elements of the offense are alleged. The petition was sufficient. See Matter of P.B.G., supra.

Points 23 and 24 assert that the summons served upon appellant and his counsel failed to meet the requirements of Section 54.02. That section, in Subsection (b), provides that:

“. . . the summons must state that the hearing is for the purpose of considering discretionary transfer to criminal court.”

The summons here notified appellant and his counsel of a hearing on the petition of the district attorney

“. . . asking for the Juvenile Court to consider waiving jurisdiction, and certifying J-R_C_ as an adult, and transferring the case to District Court for Criminal proceedings

A copy of the petition was attached. We find the notice sufficient. It actually apprised appellant and his counsel of more than the statute requires. The fact that the words used were not in the exact order of those in the statute does not change the fact that it stated what the statute required.

The next group of points urges that these proceedings should have been dismissed for failure of the State to provide appellant a speedy hearing. Section 53.05 of the Family Code provides that if the juvenile is in detention or will be taken into custody, the time set for the hearing shall be not later than 10 days after the day the petition was filed. A review of the chronology of these proceedings is necessary to determine if appellant was denied a speedy hearing as required by either Section 53.05 of the Texas Family Code or by the Texas or the United States Constitutions.

Appellant was placed in detention on March 20, 1974, as the result of a detention hearing held by the juvenile court on the same day. Appellant and his two attorneys were present. The need for detention was stipulated by all parties. On March 29, 1974, counsel for appellant and counsel for the State jointly moved the juvenile court to order psychological examinations and evaluations and a social study of appellant. The motion was granted on April 1, 1974. On motion of counsel for appellant suggesting that appellant was unfit to proceed, the question of fitness was tried to a jury on June 10,1974, which resulted in a verdict of fitness. See Sections 55.04 and 55.05, Texas Family Code. On June 21, 1974, the State filed its original and its first amended original petition seeking a waiver of the juvenile court’s jurisdiction and a transfer of the juvenile to criminal court. Likewise, on the same day the juvenile court filed its order accepting the jury verdict of fitness, ordering that the juvenile was fit to proceed, and setting the hearing on the question of discretionary transfer for the same day, June 21,1974. Although no order of continuance is contained in the record, the hearing was apparently continued by agreement. On June 24, 1974, the State filed its second amended petition for transfer, and the hearing thereon was held on July 2, 1974. On appeal by the appellant this court reversed and remanded the proceedings for a new trial. Appellant then perfected an application for writ of error to the Texas Supreme Court seeking a rendition of the judgment rather than a remand. The application was refused on July 23, 1975. On the 25th day of March, 1976, counsel for appellant and the State jointly moved for additional psychological evaluations and social studies, which motion was granted. The four reports were forwarded to the court on April 14, 1976, June 1, 1976, June 10,1976 and June 12,1976, respectively, and the new transfer hearing on remand was held on June 15, 1976. By reference to the foregoing chronology it can readily be seen that the juvenile court complied with the requirements of Section 53.05. The original and first amended petitions for transfer were filed on June 21,1974, and the hearing was originally set for the same date. Section 53.05 merely requires that the time initially set for the hearing be not later than 10 days after the filing of the petition. It does not preclude continuing the hearing by agreement or for good cause. Smith, Parent and Child, Tex.Family Code Symposium, 5 Tex. Tech.L.Rev. 551 (1974). As for the delays which occurred after the time initially set for the hearing, appellant participated in or was responsible for a considerable portion of those delays, and under the record presented here he is in no position to complain of them.

The last group of points (27, 28, 29 and 30) contend that the juvenile court lost jurisdiction of appellant because the transfer order was not filed in the minutes of the court until after appellant had reached the age of 18. Hearing on the question of transfer was held on June 15, 1976. The order of transfer was not contained in the original transcript on this appeal but has been included in a supplemental transcript presented for filing. It was signed by the juvenile judge on June 23, and it contains file marks showing that it was filed in both the county clerk’s office (who acts as the juvenile court clerk) and the district clerk’s office on June 24, 1976. Appellant became 18 on September 3, 1976. Appellant seems to contend that the transfer order was not actually filed until sometime in November of 1976 after appellant had become 18, and that the file marks were affixed at that time and backdated. Appellant has not presented to this court sufficient evidence to impugn the verity of the file marks shown on the transfer order, but even if it be established that the order was not filed until sometime in November, it not only would have been proper but would have been the duty of the juvenile court to file its order nunc pro tunc as of the date it was actually rendered and announced. See Risher v. Chrisman, 547 S.W.2d 287 (Tex.Civ.App. Dallas 1976, no writ). Moreover, it is now settled that once the jurisdiction of the juvenile court has been timely invoked by the filing of a petition for waiver of that court’s jurisdiction and transfer of the juvenile to criminal court, the jurisdiction of the juvenile court continues until there has been a final disposition of the question of waiver and transfer, whatever be the age of the offender at the time of such final disposition. R.E.M. v. State, 532 S.W.2d 645 (Tex.Civ.App. San Antonio 1975, no writ).

The judgment of the trial court is affirmed.