text:
    Ex parte Jerry Lee ROSS.
    No. 49856.
    Court of Criminal Appeals of Texas.
    April 16, 1975.
    Rehearing Denied May 14, 1975.

      Billy Britt Jarvis, Spearman, for appellant.
    Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is a post-conviction habeas corpus application.

The petitioner was convicted upon his plea of guilty on September 26, 1974, in the County Court of Hansford County for the misdemeanor offense of driving an automobile upon a public highway while under the influence of intoxicating liquor. The petitioner filed his habeas corpus application in the 84th Judicial District Court of Hansford County, alleging that the manner in which his trial was conducted deprived him of his due process and equal protection constitutional safeguards.

Following an evidentiary hearing the district court entered findings of fact and conclusions of law.

The court found that although the petitioner was indigent at the time of his conviction and was not represented by counsel, he voluntarily, waived his right to counsel and proceeded to trial unrepresented. The court further found that the petitioner orally waived his right to trial by jury, and prior to trial was fully advised of the nature and consequences of his plea and the possible punishment. The court also made a finding that the judicial officer who tried the petitioner’s case, a non-attorney judge, was fair and impartial and did not conduct his court in such a way as to deny the petitioner a fair and impartial hearing or to discourage him from exercising his right to assistance of counsel. The court found that the complaint upon which the petitioner was tried did not contain any specific allegations concerning the mental state of the petitioner at the time of the commission of the offense. Finally, the court found that sworn testimony was introduced to support the allegations made against the petitioner.

The district court denied the habeas corpus application on the ground that the petitioner was tried in accordance with the applicable constitutional and statutory provisions of law. It concluded that the petitioner failed to establish by a preponderance of the evidence the actionable portions of his application.

The petitioner urges five (5) grounds of error.

In his first ground of error the petitioner contends that the district court erred in concluding that he received a fair and impartial trial before a disinterested hearing officer. The petitioner complains that since the trial judge was also the chief ád-ministrator for the county, as well as the presiding officer of the county commissioner’s court, he was vitally interested in county expenditures, including the appointment of counsel for indigents. Contending that an alleged conflict between the judge’s executive and judicial functions existed, the petitioner claims that such conflict prevented the judge from being impartial and disinterested in the outcome of the case.

Where a judge has a direct, personal, and substantial pecuniary interest in reaching a verdict against the defendant, due process of law is deprived. Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749 (1927). However, the mere union of executive and judical power in him cannot be said to violate due process of law. Tumey v. Ohio, supra, 273 U.S. at 534, 47 S.Ct. 437; Ward v. Village of Monroeville, Ohio, 409 U.S. 57, 60, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972). The test used to determine whether due process is offended is whether the judge’s situation is one “which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused.” Ward, supra, 409 U.S. at 60, 93 S.Ct. at 83, quoting from Tumey, supra, 273 U.S. at 532, 47 S.Ct. 437.

The petitioner contends that the facts of his case show a deprivation of due process under authority of Ward, supra. In the Ward case, a major part of the village’s income was derived from fines, forfeitures, costs, and fees imposed by the mayor in the mayor’s court. As well as wide executive authority, the mayor had limited judicial authority to sit in cases of ordinance violations and certain traffic offenses. The record disclosed that yearly from 35% to 50% of the total village revenue was contributed as fines from the mayor’s court. Therefore, the Supreme Court concluded that since the mayor’s executive responsibilities for village finances might make him partisan to maintain the high level of contribution of the mayor’s court, the petitioner’s due process right to a fair and impartial hearing before a disinterested hearing officer had been violated.

The petitioner’s reliance on Ward, supra, is misplaced. Not only does the record in the present case fail to establish a fact situation similar with that in Ward, but the very proposition upon which Ward and Tumey are based, i. e., the possibility that the judge has a direct, personal, and substantial interest in reaching a conclusion adverse to the defendant, is absent. The petitioner does not allege that the judge’s alleged financial interest in county affairs affects his determinations of guilt or innocence, but rather that his interest in saving the county money leads him to discourage or deny the appointment of counsel to indigents. As can be seen, the crux of his argument goes not to the impartiality of the hearing officer, but rather to the possibility of denial of effective assistance of counsel.

We find that the petitioner has failed to show a reasonable probability that the judge’s interest in the economic and financial affairs of the county caused him to deny the petitioner effective assistance of counsel. As will be discussed later in this opinion, there is ample proof in. this case that the petitioner was informed of both his right to counsel and his right to appointed counsel if he were indigent.

In his second ground of error the petitioner contends that the district court erred in concluding that he was tried in accordance with applicable statutory law, and urges that the complaint upon which his conviction was founded failed to allege his culpable mental state, thereby making his conviction void.

The offense for which the petitioner was convicted, driving an automobile upon a public highway while under the influence of intoxicating liquor, is contained in Article 6701Z-1, Vernon’s Ann.C.S. This statute was transferred verbatim and without reenactment from Article 802, Vernon’s Ann.P.C., pursuant to the authority granted by Section 5 of Acts, 63rd Leg., Ch. 399. This court has held that the offense of “driving an automobile upon a public highway while intoxicated” consists of two elements; intoxication and driving upon a highway in such condition. Snider v. State, 165 S.W.2d 904 (Tex.Cr.App.1942). A criminal or unlawful intent is not an essential element of the offense. Joiner v. State, 161 Tex.Cr.App. 526, 279 S.W.2d 333 (1955).

The petitioner argues that a reading of Section 1.03(b) in conjunction with Section 6.02, Vernon’s Ann.P.C., makes it clear that the strict liability offenses are eliminated except where “ . . . the definition plainly dispenses with any mental element,” and therefore the failure of the State to plead and prove his culpable mental state renders his conviction void.

The issue which must be resolved is whether the Legislature through enactment of Sections 6.02 and 1.03(b) of the new Texas Penal Code intended to require proof of a culpable mental state in the offense of driving while intoxicated. First of all, if such was their intention, it seems strange that they would implement the same in the awkward manner the petitioner suggests. It would have been much easier to merely include the requirement of proof of a culpable mental state by amending the statute when it was transferred from Article 802, Vernon’s Ann.P.C., to Article 6701Í-1, Vernon’s Ann.C.S.

In addition to the above observation, there is another reason why we find no merit in the petitioner’s argument. An examination of other sections of the Penal Code gives one insight into the Legislature’s attitude concerning intoxication. Section 8.04 deals with intoxication, defining such as “disturbance of mental or physical capacity resulting from the introduction of any substance into the body.” (Emphasis Added). Voluntary intoxication does not constitute a defense to the commission of a crime, but evidence of temporary insanity caused by such intoxication may be introduced by the accused in mitigation of the penalty attached to the offense for which he is being tried. Section 19.05, creating the offense of Involuntary Manslaughter, provides that a person may commit such offense in either of two ways: either he recklessly causes the death of another individual; or by accident or mistake when operating a motor vehicle while intoxicated, he causes the death of another person by reason of such intoxication. As defined in Section 19.05(b), “intoxication” means “that the actor does not have the normal use of his mental or physical faculties by reason of the voluntary introduction of any substance into his body.” (Emphasis Added).

By consideration of Sections 8.04 and 19.05 of the new Penal Code, it is apparent that the Legislature never intended to require proof of the culpable mental state of a person charged with an offense where one of the essential elements is voluntary intoxication. As can be seen by reviewing Section 19.05, involuntary manslaughter can be established without proof of a culpable mental state; proof that the accused caused the death of a person by reason of operating a motor vehicle while intoxicated is sufficient.

It is common knowledge that intoxication temporarily destroys faculties essential to safe driving, Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607 (1952), and we cannot in good conscience speculate that the Legislature failed to recognize that which human experience has shown. Examination of the definitions of “intoxication” contained in the new Penal Code shows that the Legislature recognized that intoxication impairs mental faculties. By enactment of Section 8.04(b), allowing evidence of temporary insanity caused by intoxication to be introduced in mitigation of punishment, it is apparent that they realized that intoxicated persons often act abnormally.

We hold that the Legislature by enactment of Sections 1.03(b) and 6.02 of the new Penal Code did not intend to require proof of a culpable mental state in prosecutions under Article 6701Í-1, Vernon’s Ann.C.S. The petitioner’s second ground of error is overruled.

In his third ground of error the petitioner contends that the district court erred in concluding that his trial before a non-attorney judge was not a violation of his due process rights. The petitioner cites as authority for his position the recent case of Gordon, et al. v. The Justice Court for the Yuba Judicial District of Sutter County, 12 Cal.3d 323, 115 Cal.Rptr. 632, 525 P.2d 72 (1974), wherein the California Supreme Court held that permitting non-attorney judges to preside over criminal trials for offenses punishable by jail sentences is a violation of due process unless the accused or his counsel waives the right to have an attorney judge preside. The court reasoned that an accused’s right to assistance of counsel would have little meaning unless his counsel’s arguments are heard by a judge qualified to comprehend and utilize the arguments, and held that so long as a reasonable likelihood exists that a non-attorney judge will be unable to afford an accused a fair trial, due process requires that only an attorney judge conduct the trial.

It is apparent that by its ruling the court equated competency of a judge with the status of being an attorney. Despite so holding, the court apparently realized the unreliability of its own equation, for it stated, quoting from a law review article on the subject:

“The great majority of the law justice court judges now serving in California have demonstrated that nonlawyers who are interested, competent and dedicated to the work of the courts can perform an important role in the efficient administration of justice.” 115 Cal.Rptr. at 639, 525 P.2d at 79.

Our research on this issue fails to disclose any other court with views consistent with those of the California Supreme Court. We note that several courts have expressly held that a criminal trial before a non-attorney judge is not a denial of due process. See Ditty v. Hampton, 490 S.W.2d 772 (Ky.1972); City of Decatur v. Kushmer, 43 Ill.2d 334, 253 N.E.2d 425 (1969); State v. Lynch, 107 Ariz. 463, 489 P.2d 697 (1971), in banc.

In rejecting the contention that trial of a criminal case before a non-attorney judge violates due process, we view with favor the position stated by the Kentucky Court of Appeals in Ditty v. Hampton, supra, 490 S.W.2d at 775, wherein it stated:

“The function of the court is not to defend the accused, or to represent him, but to decide fairly and impartially. An accused needs counsel to defend him, as pointed out in Gideon v. Wainwright, because the government employs lawyers to prosecute him — because our system of criminal justice is an adversary system. But the judge is not one of the accused’s adversaries, and is not there either to defend or to prosecute him. So the fact that the accused needs a lawyer to defend him does not mean that he needs to be tried before a lawyer judge.”

There is no constitutional or statutory requirement in Texas that a county judge be an attorney. The only qualification concerning legal knowledge or training is that a county judge be “well informed in the law of the State.” Tex.Const., Art. 5, Sec. 15, Vernon’s Ann.Stat. See also Article 1927, Vernon’s Ann.C.S. It has been held that “well informed in the law of the State” does not mean that county judges need be lawyers. Ex parte Craig, 150 Tex.Cr.App. 598, 193 S.W.2d 178 (1946); Little v. State ex rel. Parsell, 75 Tex. 616, 12 S.W. 965 (1890). We note that the other courts have construed constitutional qualifications that judges be “learned in the law” to mean either admitted or entitled to be admitted without examination to practice as an attorney in the State. See In re Scarrella, 221 N.W.2d 562 (Minn.1974); State ex rel. Chavez v. Evans, 79 N.M. 578, 446 P.2d 445 (1968); Opinion of the Justices, 279 Ala. 38, 181 So.2d 105 (1965). However, the Texas Constitution delineates different qualifications for higher judges, including the requirement that they be attorneys. As the court noted in Little v. State ex rel. Parsell, supra, 12 S. W. at p.967:

“It is apparent that county judges were not required to be lawyers, because that qualification is expressly provided by the constitution for judges of the higher courts.”

If the framers of our Constitution had intended for county judges to be attorneys, it is apparent that they would have expressly so provided, as they did in the qualifications for judges of the higher courts.

We are unwilling to hold that due process is offended by trial before a non-attorney judge for a criminal offense punishable by imprisonment. The petitioner’s third ground of error is overruled.

In his fourth ground of error the petitioner contends that the district court erred in concluding that he knowingly and intelligently waived his right to counsel at trial.

It is well settled that an accused may knowingly and voluntarily waive his right to counsel. Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2112, 32 L.Ed.2d 530, 538 (1972); King v. State, 473 S.W.2d 43, 49 (Tex.Cr.App.1971); Carey v. State, 455 S.W.2d 217 (Tex.Cr.App.1970); Sanchez v. State, 454 S.W.2d 210 (Tex.Cr.App.1970). Though a written waiver is desirable, there is no requirement that the right to counsel can be waived only in writing.

The record of the trial proceedings contains no statement of facts, but it does contain two written instruments which shed some light on this issue. The first instrument is a printed form informing the accused of his rights as required by Article 15.17, Vernon’s Ann.C.C.P. This form, signed by the petitioner, tends to establish that he knew of his right to counsel and right to have counsel appointed if he were indigent. The second instrument, the judgment of the trial court, contains a printed form recital that the petitioner was informed in open court of his right to counsel and his right to appointment of counsel if he were financially unable to employ counsel, and thereafter he expressly waived his rights to counsel and the appointment of counsel. Though these instruments are not conclusive proof that the petitioner knowingly and intelligently waived his right to counsel, they do tend to establish such fact.

Examination of the testimony in district court at the hearing on this application for habeas corpus reveals that the petitioner knowingly and voluntarily waived his right to counsel. The prosecutor at trial, Mr. Blackburn, testified that the court advised the petitioner of his right to counsel and his right to have counsel appointed if he were indigent, and the petitioner replied that he did not want a lawyer. Mr. Blackburn also testified that although no hearing on indigency was conducted, the petitioner stated that he did not wish the court to appoint a lawyer to represent him.

Highway Patrolman Sanders, who was also present during the trial proceedings, testified that the court advised the petitioner of his rights to counsel and appointed counsel. He also testified that the petitioner never requested to either have a lawyer present or have the court appoint one to represent him, but instead stated that he wanted to “go ahead and get it tried and get it over with.”

Judge Lee, who presided over the petitioner’s trial, testified that he read the petitioner his rights as required by Article 15.-17, Vernon’s Ann.C.C.P., prior to entry of his plea. He testified that he asked the ■ petitioner if he wanted an attorney and told him that an attorney would be provided if he could not afford one, and stated that the petitioner replied that he did not want an attorney but wanted to go ahead and get the trial over with.

The most damaging testimony to the pe- • titioner’s contention was elicited from the petitioner himself on cross-examination. He testified that the trial court advised him of his rights to counsel and appointed counsel, but he answered the court that he did not want an attorney and requested to “go ahead and try this thing without a lawyer.” The petitioner also acknowledged that he had stated at trial that he was entering his plea because he was guilty, and that the only reason he was pursuing this habeas corpus application was because his driver’s license had been revoked.

The State offered proof of one prior driving while intoxicated offense committed in July, 1969 in Hutchinson County for which the petitioner was placed on probation. It also elicited from the petitioner during cross-examination admissions of numerous other arrests in Kansas and Texas for various misdemeanor offenses over the period of the previous eighteen years.

The following testimony of the petitioner conclusively shows both a knowing and intelligent waiver of his right to counsel, and his familiarity with trial proceedings:

“Q. No one forced you to say you did not want a lawyer, did they ?
“A. No.'
“Q. That was on your own free will, wasn’t it ?
“A. Yes.
“Q. Of your own choosing?
“A. Yes.
“Q. At the time you said you did not want a lawyer, you knew you could have one, knew you could have one appointed if you couldn’t afford one, right ?
“A. Yes.
“Q. But you’ve been in trouble quite a bit with the law, haven’t you ? There’s six or eight times that you say you’ve been arrested for something.
“A. Over a period of 20 years.
“Q. Yeah, I realize it has been since 1956 or so, 18 years, something like that, but the point is you’ve been in trouble with the law before, and you were aware of your rights when you were arrested each time, weren’t you ?
“A. Yeah.
“Q. Excuse me ?
“A. Yes.”

The record shows that the thirty-four year old petitioner had previous experience with law enforcement officers and misdemeanor trials, during at least one of which he had waived counsel. It is proper to consider such previous experience with criminal proceedings in determining whether the waiver of counsel was knowingly and intelligently made. Nash v. State, 477 S.W.2d 557 (Tex.Cr.App.1972). In the present case the trial court clearly informed the petitioner of his right to counsel and determined that he instead wished to exercise his right to a speedy trial without assistance of counsel. See Carr v. State, 475 S.W.2d 755 (Tex.Cr.App.1972).

The petitioner’s fourth ground of error is without merit.

In his final ground of error the petitioner contends that the district court erred in failing to find that the differing requirements for waiver of trial by jury in felony and misdemeanor prosecutions deprived him of his due process and equal protection rights. More specifically, he challenges the reasonableness of the distinction between requiring the assistance of counsel before accepting an accused’s waiver of trial by jury in a non-capital felony prosecution and the absence of such requirement in misdemeanor prosecutions.

At common law, one accused of a felony could not waive his right to a jury trial, and in some jurisdictions this rule still remains. See 50 C.J.S. Juries § 86; 47 Am.Jur.2d, Jury, Sec. 61. In the many jurisdictions which allow waiver of trial by jury in felony prosecutions, the waiver is authorized either by constitutional or statutory authority. See O.J.S., id.; Am.Jur.2d, id. at Sec. 75. There exists no federal constitutional provision which prohibits an accused from knowingly and intelligently waiving his right to trial by jury in a felony prosecution. Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930); Adams v. United States, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942).

From our research, it appears that the Texas requirement of representation by counsel in a non-capital felony prosecution prior to acceptance of a waiver of trial by jury is unique. In Adams v. United States supra, 317 U.S. at p. 278, 63 S.Ct. 236, the Supreme Court stated that it found nothing in either the Constitution, or the great historic events that gave rise to it, to require that unless a person is represented by an attorney he cannot freely and understandingly waive the right to a jury trial. We note that in federal criminal prosecutions the accused may waive in writing a trial by jury, subject to approval of the court and consent of the government, and he need not be represented by counsel before doing so. See Fed.Rules Cr.Proc., rule 23(a), 18 U.S.C.

By reviewing the predecessor statutes to Article 1.13, Vernon’s Ann.C.C.P., one is able to trace the development of its present requirements. Article 23 of the 1879 Code of Criminal Procedure followed the common law rule and provided that the accused in a criminal prosecution for any offense could waive any right secured to him by law except the right of trial by jury in a felony case. This statute was reenacted as Article 22 in the 1911 Code of Criminal Procedure, and as Article 11 in the 1925 Code of Criminal Procedure. This court upheld the prohibition against waiver of a jury trial in a felony case. See Frier v. State, 108 Tex.Cr.App. 379, 1 S.W.2d 306 (1928); Hawk v. State, 115 Tex.Cr.App. 25, 27 S.W.2d 178, 179 (1930).

In 1931, two amendments were added to the 1925 Code of Criminal Procedure, and thereafter it became possible for an accused to waive a jury trial in a non-capital felony prosecution. An amendment to Article 11 provided that the accused could waive all rights “except the right of a trial by a jury in a felony case when he enters a plea of not guilty.” (Emphasized words were added by the amendment.) A second amendment, the creation of Article 10a, provided that in any felony offense less than capital the accused had the right upon entering a plea of guilty to waive the right of a jury trial. This waiver had to be made in person by the accused in open court; it could be made only with the consent of the court and approval of the State’s attorney; and it could be made only after an accused who was not represented by counsel was appointed counsel by the court.

The present Article 1.13, supra, differs little from its predecessor, Article 10a, the major difference being that the former requires the waiver to be written where the latter did not.

This court has consistently held that the provisions of Article 1.13, and its predecessor Article 10a, are mandatory; before a defendant who has no attorney can agree to waive a jury trial in a non-capital felony, the court must appoint an attorney to represent him or the resulting conviction will be void. Ex parte Jenkins, 433 S.W.2d 701 (Tex.Cr.App.1968); Ex parte Strother, 395 S.W.2d 629 (Tex.Cr. App.1965); Ex parte Prestridge, 373 S.W. 2d 494 (Tex.Cr.App.1963); Ex parte Ross, 165 Tex.Cr.App. 246, 305 S.W.2d 958 (1957). The mandatory requirements of the statute apply whether the accused is indigent or not. Young v. State, 448 S.W.2d 484 (Tex.Cr.App.1970), at p. 485, footnote 1; Ex parte Burns, 441 S.W.2d 532 (Tex.Cr.App.1969); Ex parte Higginbotham, 382 S.W.2d 927 (Tex.Cr.App.1964).

The petitioner argues that the different procedures for waiving a jury trial in felony and misdemeanor prosecutions are unreasonable, and asks that we extend to misdemeanor defendants the right of counsel prior to the court’s accepting a waiver of trial by jury. This we decline to do. This court is not in the business of passing legislation, and if the Legislature wishes to amend Article 27.14, supra, to include assistance of counsel prior to waiver, it may certainly do so.

We do not find, nor have we been cited any authority which holds that the right to assistance of counsel prior to waiver of trial by jury in a criminal case is a fundamental right under due process of law. We do not find that the Legislature’s distinction between the procedure for waiver of trial by jury in felonies and in misdemeanors is either unreasonable or arbitrary.

The petitioner’s fifth ground of error is overruled.

The relief requested is denied.

      . See Article 67011-1, Vernon’s Ann.Civ.St.

      . The record in the present case was simply not developed fully enough to reveal the exact extent of the county judge’s executive authority and duties. The testimony of the judge that he spends most of his time on administrative duties and is the chief administrator of the county is simply too vague to delineate the exact parameters of his executive functions.

      . Section 1.03, Vernon’s Ann.P.C., provides:
      “(b) The provisions of Titles 1, 2, and 3 of this code apply to offenses defined by other laws, unless the statute defining the offense provides otherwise; however, the punishment affixed to an offense defined outside this code shall be applicable unless the punishment is classified in accordance with this code.”

      . Section 6.02, Vernon’s Ann.P.C., provides:
      “(a) Except as provided in Subsection (b) of this section, a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.
      “(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.
      “(c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b) of this section, intent, knowledge, or recklessness suffices to establish criminal responsibility. ...”

      . Section 8.04(d), Vernon’s Ann.P.C.

      . Section 8.04(a), Vernon’s Ann.P.C.

      . Section 8.04(b), Vernon’s Ann.P.C.

      . The Gordon case dealt with appeals from the denial by a superior court of extraordinary pre-trial relief attacking the constitutionality of allowing non-attorney justices of the peace to preside over criminal trials of offenses punishable by jail sentences. The qualifications for justice of the peace in California are that the applicant must be either: a member of the State Bar; or have passed a Judicial Council qualifying examination; or have been an incumbent at the time of the Reorganization Act of 1950. The court noted that as of March, 1974, there were 215 authorized judgeships in justice courts: 81 were held by attorneys; 108 were laymen who had passed qualifying exams; 19 were laymen incumbents from the old system; and there were 7 vacancies.

      . See Tex.Const., Art. 5, Secs. 2, 4, 6, and 7, Vernon’s Ann.Stat.

      . Article 1.13, Vernon’s Ann.C.C.P., requires assistance of counsel prior to making a written waiver of trial by jury in a non-capital felony prosecution; a jury trial cannot be waived in a capital felony prosecution.

      . Article 27.14, Vernon’s Ann.C.C.P., provides that in misdemeanor prosecutions either the accused or his attorney may waive trial by jury. There is no requirement that the waiver be written, nor is there any requirement that the court appoint an attorney to represent an accused who does not have one prior to accepting the waiver.

      . Article 1.13, Vernon’s Ann.C.C.P., provides :
      “The defendant in a criminal prosecution for any offense classified as a felony less than capital shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court and the attorney representing the State. The consent and approval by the court shall be entered of record on the minutes of the court, and the consent and approval of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea. Before a defendant who has no attorney can agree to waive the jury, the court must appoint an attorney to represent him.”


source: Caselaw Access Project

author: BROWN, Commissioner.

license: Public Domain

text:
    Juan Molina BAZAN et al., Appellants, v. The STATE of Texas, Appellee.
    No. 49829.
    Court of Criminal Appeals of Texas.
    April 30, 1975.
    J. A. Canales, Corpus Christi, for Bazan.
    Vernon N. Reaser, Jr., Victoria, for Castaneda.
    Moisés V. Vela, Harlingen,' for Rodriguez.
    Robert J. Seerden, Dist. Atty., and Norman D. Jones, Asst. Dist. Atty., Victoria, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

The appellants were convicted in a trial before the court of unlawful possession of marihuana in excess of four ounces. The punishment assessed against the appellant Bazan was five years, and against the other two appellants nine years.

The sole ground of error asserted by the appellants is that the court erred in not sustaining their motions to suppress the marihuana because the same was seized as the result of a warrantless search not based upon probable cause.

On October 4, 1973, at approximately 1:30 A.M., Officer Beilis of the Victoria Police Department received a long distance call from Federal Agent Dracoulis who advised Beilis that five suitcases and a footlocker containing marihuana would arrive in Victoria about 3:20 A.M. that morning aboard a Continental Trailways bus, that the Samsonite suitcases would be three yellow ones, one green and the fifth one either tan or white. He did not tell Beilis how he had obtained this information and Beilis did not inquire. Beilis and Officers Mayo and Ramirez of the Victoria Police Department were waiting at the bus station when the bus arrived. The driver opened the cargo compartment and removed five Samsonite suitcases and a footlocker which were then picked up by appellants. At this point the three officers who were standing a few feet away stepped forward, arrested appellants and seized the luggage. When the luggage was opened the officers observed packages of marihuana totaling 172.2 pounds. Officer Beilis stated that as the cargo compartment of the bus was opened he detected an odor of marihuana coming from that general area. Neither of the other officers testified as to any marihuana odor, and none of the officers testified that they smelled any marihuana odor emanating from any of the pieces of luggage which were subsequently seized. Federal Agent Dracoulis did not testify, and the arresting officers had no information concerning the number, sex, race or description of the people who would receive the described luggage upon its arrival in Victoria.

Appellee suggests that this search is valid because it is so similar to the situation in Muggley v. State, Tex.Cr.App., 473 S. W.2d 470. In Muggley, supra, Officer Archer stopped a car as the result of a radio dispatch. Officer Trevino, who had caused the message to be dispatched, arrived on the scene within a few moments after Officer Archer had stopped the car. Trevino had received detailed information from a reliable informer who had furnished accurate information leading to the discovery of marihuana on two prior occasions. In addition, Trevino, through surveillance, had verified a great deal of the information supplied by the informer. Also, as Trevino approached the automobile being detained by Archer, he smelled the odor of marihuana smoke coming from the car. The subsequent search of the car and its occupants by Trevino yielded a large quantity of marihuana. Trevino testified at the trial. Muggley, supra, holds that although Archer had no probable cause to arrest, he was entitled to act upon the basis of the radio broadcast, and, if the officer originating the broadcast had probable cause, the arrest would be constitutionally permissible. See also, Colston v. State, 511 S.W.2d 10 (Tex.Cr.App.1974).

In this case the federal officer requesting the arrest did not testify and there was no proof that he had probable cause to request the seizure of the luggage.

The State suggests that Muggley, supra, should apply because Trevino in that case smelled marihuana smoke coming from the car, and in this case one of three officers present testified that he detected an odor of marihuana coming from the open door of the baggage compartment of the bus. However, as stated previously, no one testified to detecting the odor of marihuana coming from any of the luggage. Under these circumstances, it is just as logical to assume that this bus which had come from the Mexican border contained in its baggage compartment a more odiferous supply of marihuana belonging to someone other than appellants. We hold that the above circumstances are insufficient, standing alone, to supply the Victoria officers with probable cause to seize and search the luggage of appellants. The motion to suppress should have been granted.

The judgments are reversed and the cause remanded.

Opinion approved by the Court.


author: ONION, Presiding Judge.

text:
    Macie Andrew JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 49627.
    Court of Criminal Appeals of Texas.
    April 30, 1975.

      Henry Wade, Dist. Atty. and W. T. Asst. Dist. Attys., Dallas, Jim D. Vollers, Westmoreland, Jr. and Jay Ethington, Mitchell, Dallas, for appellant.
    Tom A. Boardman and Lawrence B. State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction of robbery by firearms. Appellant elected to be punished under the new Penal Code, and the jury assessed punishment at life in the Texas Department of Corrections.

The sufficiency of the evidence is not challenged. In view of the disposition of this appeal, a discussion of the facts is unnecessary. Appellant was tried jointly with a co-defendant for the offense.

Appellant contends the trial court erred in overruling his objection to the prosecutor’s argument urging the jury to assess a severe enough penalty so that the Department of Corrections could determine when they are fit “to be turned back into society.” It is the contention of appellant that court’s charge, a misstatement of the law, such argument was in violation of the and was so prejudicial as to deprive him of a fair trial and to constitute reversible error.

The portion of the argument of the prosecuting attorney made the basis of appellant’s complaint was as follows:

“I’m not against another chance for a deserving individual. I don’t think anybody is, but what I’m saying, send them to the Texas Department of Corrections with a sentence that is long enough so they can do something about it, if anything can be done, and let them be the judge after working with them as to whether or not they’re fit to be turned back into society.
“MR. BOARDMAN: Judge, I’m going to have to object to that as being a comment against the Court’s rule against how long an individual may be expected to stay in the Texas Department of Corrections.
“THE COURT: Overrule your objection.”
(Emphasis Supplied)

It is a matter of common knowledge that inmates are released from the Texas Department of Corrections, but the jury, in a felony case, in determining the punishment to be assessed, is not authorized to resort to or apply the parole law. Argument urging them to do so is highly improper. Graham v. State, 422 S.W.2d 922 (Tex.Cr.App.1968); Hughes v. State, 493 S.W.2d 106 (Tex.Cr.App.1973); Hartman v. State, 496 S.W.2d 582 (Tex.Cr.App.1973).

A very similar argument to the one in the instant case was made in Hernandez v. State, 366 S.W.2d 575 (Tex.Cr.App.1963). The prosecutor had stated in Hernandez that:

"Therefore, I say this, that I feel confident that when you send him, that when he has been rehabilitated that they will turn him loose.”

The court in Hernandez, in reversing the decision, stated in reference to the argument of the prosecutor:

“The argument that an inmate will be turned loose when he has been rehabilitated in effect told the jury that it did not matter how long a term was assessed. This was of course an incorrect statement of law. It is the duty of the jury to assess the punishment which appears to be just and proper according to the evidence and within the limits prescribed by law. Notwithstanding the court’s instruction, the argument was calculated to prejudice the rights of the appellant with the jury.”

Likewise, in this case the prosecutor was arguing that the jury should assess a penalty long enough for the Texas Department of Corrections to do something about rehabilitation, as the Texas Department of Corrections would be the judge as to whether or not appellant would be turned back into society.

The argument was an attempt to get around the trial court’s jury instruction not to discuss the matter of parole. In effect the implication to the jury was to resort to and consider the parole law in assessing punishment. The argument could also be construed as an appeal to the jury to disregard their responsibility in determining the appropriate punishment as someone else (the Texas Department of Corrections) would decide later as to when the appellant would be released. See Blount v. State, 509 S.W.2d 615 (Tex.Cr.App.1974). Further, the argument was a misstatement of the law, for the Board of Pardons and Paroles and the Governor determine the question of release on parole, and not the Texas Department of Corrections. See Article 42.12, Vernon’s Ann.C.C.P. The error in this case was further compounded by the fact that appellant’s objection was overruled by the trial court.

The State relies upon Dorsey v. State, 450 S.W.2d 332 (Tex.Cr.App.1969); Hughes v. State, 493 S.W.2d 166 (Tex.Cr. App.1973); Lenzi v. State, 456 S.W.2d 99 (Tex.Cr.App.1970); Graham v. State, 422 S.W.2d 922 (Tex.Cr.App.1968)

In each of these cases the court sustained the objection to the complained of argument and instructed the jury to disregard the argument. The arguments were held not to be so prejudicial that they could not be cured by instruction. Further, in Hughes and Graham it was noted the argument was invited.

We have also examined the cases of Bryant v. State, 455 S.W.2d 235 (Tex.Cr. App.1970); Sandlin v. State, 477 S.W.2d 870 (Tex.Cr.App.1972); Campbell v. State, 492 S.W.2d 956 (Tex.Cr.App.1973); Hartman v. State, 496 S.W.2d 582 (Tex. Cr.App.1973); and Cooper v. State, 500 S.W.2d 837 (Tex.Cr.App.1973), and do not conclude that they call for a different result than we reach in the instant case.

The argument in the case at hand leaves no doubt whatsoever that the Texas Department of Corrections would decide “whether or not they’re fit to be turned back into society.” The prosecutor was on notice through the court’s charge as to the impropriety of his argument. No useful or legitimate purpose was served by the argument pursued. See Boyde v. State, 513 S.W.2d 588 (Tex.Cr.App.1974).

The prosecutor was not recommending a severe punishment based solely on the evidence, but urged the jury to abdicate its responsibility and set a high penalty and allow the Department of Corrections to determine the period of confinement.

The error calls for reversal. In light of this reversal, we need not consider the serious question of the admissibility of appellant’s oral confession without a proper predicate being laid therefor. It is not likely to reoccur in the event of a retrial.

For the error pointed out in the argument, the judgment is reversed and the cause remanded.

DOUGLAS, J., dissents.

      . It is true that in Dorsey the majority did not, however, rely upon the sustained objection and jury argument, but held that the argument was not a comment “about the length of term to be served.”


author: ROBERTS, Judge.

text:
    Michael Oris WARD, Appellant, v. The STATE of Texas, Appellee.
    No. 49841.
    Court of Criminal Appeals of Texas.
    April 30, 1975.
    Robert S. Liddle and Lawrence B. Mitchell, Dallas, for appellant.
    Henry Wade, Dist. Atty., Richard W. Wilhelm and Jay Ethington, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

The appellant was convicted by a jury of robbery by assault and sentenced by the court to twenty years’ imprisonment.

The complainant, Eugene Dry, testified that he was employed by Frankford Properties as a property manager and that on December 8, 1973, he was in Dallas on business. While there, he was residing in an apartment complex owned by his employer.

On the day in question the complainant was returning to his apartment carrying a television set he had just rented when he was attacked by two men standing in a breezeway of the apartment complex. The men beat the complainant with their fists and a nightstick, knocked him to the ground, took his wallet, and fled.

As the complainant began a pursuit of his attackers he noticed two witnesses to the assault standing on a balcony nearby. These two men also attempted to follow the suspects. While the complainant called the police, the two witnesses continued their pursuit by automobile. They returned in fifteen or twenty minutes and told the complainant that the suspects had been involved in an automobile accident nearby. The complainant then went to the scene of the accident; he identified the appellant as one of his attackers, both at the scene of the accident and at the time of trial.

Appellant’s first ground of error alleges that the State improperly impeached his reputation for truth and veracity.

The appellant took the stand and denied the commission of the offense. On cross-examination the State was permitted to ask the appellant if he had been “convicted of the felony offense of breaking and entering a motor vehicle down in Smith County . and received a two year probated sentence.” The appellant answered in the affirmative, and the prosecutor then asked if appellant had made an application for probation in the instant cause. The appellant again answered affirmatively, and the prosecutor then asked:

“Now in that application for probation, does it not state that, ‘I, the Defendant in the above entitled cause represent to the Court that he is the Defendant in said cause and has never been convicted of a felony in this or any other state?’ ”

Again the appellant answered, “Yes, sir.” Appellant objected in a timely fashion to the propounding of each of these questions.

Appellant concedes that the State’s use of the Smith County probated sentence as impeachment evidence was permissible. Art. 38.29, Vernon’s Ann.C.C.P. He argues, however, that the appellant’s application for probation, as evidence of what appeared to be perjury, was inadmissible as a specific prior act of misconduct. See, e. g., Webber v. State, 472 S.W.2d 136 (Tex.Cr.App.1971).

The appellant admits in his brief, however, that his objections at trial merely requested that this issue not be considered until the punishment stage of the trial. He did not call to the trial court’s attention the objection he now presents as a ground of error on appeal. Nothing is presented for review. Gondek v. State, 491 S.W.2d 676, 677 (Tex.Cr.App.1973); Sloan v. State, 515 S.W.2d 913, 915-916 (Tex.Cr.App.1974).

However, even if the ground had been properly preserved, error would not be shown. The State, as noted, was within the guidelines of Art. 38.29, supra, in using the Smith County conviction as a basis for impeaching the appellant. E. g., Huffman v. State, 479 S.W.2d 62, 67 (Tex.Cr.App.1972); Burson v. State, 511 S.W.2d 948, 950 (Tex.Cr.App.1974). The prosecutor then chose to impeach appellant further by showing the prior inconsistent statement contained in the appellant’s application for probation. Clearly, this was admissible to impeach the appellant’s character for truth and veracity. De Witt v. State, 114 Tex. Cr.R. 59, 61, 24 S.W.2d 403, 404 (1930). Cf. Davidson v. State, 386 S.W.2d 144, 148-149 (Tex.Cr.App.1965); Griffin v. State, 455 S.W.2d 298, 300 (Tex.Cr.App. 1970).

Appellant’s first ground of error is overruled.

Appellant’s remaining ground alleges error in the admission of hearsay tqs-timony elicited from the complainant concerning the identification of appellant by the two eyewitnesses, neither of whom testified at trial. An examination of the record clearly reveals that appellant did not make his objection in a timely fashion. The prosecutor was permitted to ask two questions after the hearsay was elicited; it was at this point that the appellant objected. Nothing is preserved for review. E. g., Webb v. State, 480 S.W.2d 398, 400 (Tex.Cr.App.1972).

The judgment is affirmed.

ODOM, J., concurs in the results.


author: HALL, Justice.

text:
    In the Interest of Santos MARTINEZ et al., minor children.
    No. 5430.
    Court of Civil Appeals of Texas, Waco.
    April 10, 1975.
    Burt Barr, Joe McNicholas, Dallas, for Bea Martens.
    Neil Pfeiffer, Bastrop, for State Department Of Public Welfare.
   HALL, Justice.

The five children of Raymond Martinez and wife, Eluteria Martinez, are presently in the possession of The Coe Children’s Home, which is located in Ellis County. Mrs. Bea Martens is secretary of The Coe Children’s Home. On December 11, 1974, she filed this suit in the 40th Judicial District Court, in Ellis County, to terminate the parent-child relationship between the Martinez children and their parents, and to have herself appointed managing conservator of the children. The State Department Of Public Welfare intervened and moved the court to dismiss the action for want of jurisdiction. At the conclusion of the hearing the court granted the motion and dismissed this case for want of jurisdiction. Mrs. Martens questions this order in four points of error.

It is reasonably inferable from the record that this is the first action in the 40th District Court involving these children or their parents; and, in oral argument before us, the parties stipulated that this is so.

The hearing on the motion to dismiss developed the following undisputed facts. On June 11, 1971, the 21st Judicial District Court, in Bastrop County, made an order awarding custody of the Martinez children to the County Judge of Bastrop County. Six days later, on June 17, 1971, an employee of the State Department Of Public Welfare delivered the children into the possession . of The Coe Children’s Home. They have remained in the home since that time. By judgment dated March 27, 1973, the 21st Judicial District Court in Bastrop County changed the custody of the children to a supervisor for the State Department Of Public Welfare named Jimmy Caruth-ers, and his successor in that position. The parental rights of Mr. and Mrs. Martinez were not terminated in the proceedings in the 21st Judicial District Court; and The Coe Children’s Home was not a party to either action.

The rights of the parties are controlled by various sections of Subtitle A of Title 2 of the Texas Family Code V.T.C.A., which took effect on January 1, 1974. Secs. 11.04 through 11.07 of the Code are concerned with the venue of actions which affect the parent-child relationship. A “suit affecting the parent-child relationship” is defined in Para. (5) of Sec. 11.01 of the Code to mean “a suit brought under this subtitle in which the appointment of a managing conservator or a possessory conservator, access to or support of a child, or establishment or termination of the parent-child relationship is sought.” With two exceptions which do not bear application to our suit, Sec. 11.05 provides that once a court has properly assumed jurisdiction in one of these suits, then all future actions involving the parent-child relationship of the parties must be brought in the court in which the original proceeding was laid. This venue provision is referred to in the Code as “continuing jurisdiction.”

Para, (b) of Sec. 11.07 of the Family Code provides as follows:

“On the commencement of a suit affecting the parent-child relationship in a court which has not already acquired continuing jurisdiction, the court shall request from the State Department Of Public Welfare identification of the court which last had jurisdiction of the child in a suit affecting the parent-child relationship unless the information from the department is attached to the petition. The court shall identify the child by name, birthdate, and place of birth. If another court is determined to have continuing jurisdiction over the parent-child relationship, the court in which the suit was commenced shall dismiss the suit without prejudice.”

Mrs. Martens’ petition did not contain any information from the State Department Of Public Welfare or any other source regarding the prior suits in Bastrop County involving the Martinez children. The record does not show directly whether or not the trial court complied with Sec. 11.07 of the Code and sought information from the State Department Of Public Welfare as to the possibility of the prior assumption of jurisdiction over the parent-child relationship of these children by another court; but the only logical inference from the record is that this was not done. In any event, the State Department Of Public Welfare learned of this suit, intervened, and apprised the court of the prior proceedings; whereupon, the court properly ordered a dismissal. However, the court erroneously dismissed the suit for want of jurisdiction. It should have been dismissed without prejudice, in keeping with the mandate of Sec. 11.07 of the Family Code.

Mrs. Martens’ points and contentions are overruled. The judgment is reformed to provide that the dismissal of this suit is without prejudice rather than for want of jurisdiction. As reformed the judgment is affirmed. The question of Mrs. Martens’ standing to bring this suit, raised in a cross-point, becomes immaterial with this disposition and need not be decided.

Reformed and affirmed.


author: CORNELIUS, Justice.

text:
    Elizabeth HARRIS, Appellant, v. LAQUINTA-REDBIRD JOINT VENTURE, Appellee.
    No. 8268.
    Court of Civil Appeals of Texas, Texarkana.
    Feb. 18, 1975.
    Rehearing Denied March 18, 1975.

      Woodruff & Smith, Dallas, for appellant.
    Bailey, Williams, Westfall & Henderson, Dallas, for appellee.
   CORNELIUS, Justice.

Appellant filed suit against appellee for damages resulting from the drowning of her son, Ned Harris, in appellee’s motel swimming pool. At the close of evidence from both parties the District Court directed a take nothing verdict. The parties will be referred to as in the trial court.

Plaintiff based her case upon the alleged negligence of defendant in failing to provide a lifeguard, failing to warn of the absence of a lifeguard and failing to have a life pole and a separate throwing line available as required by Dallas City Ordinance No. 8479. We have concluded that plaintiff made a case for the jury on the issues of negligence and proximate cause in failing to provide a life pole as required by the ordinance, and that the directed verdict was therefore improper.

In judging the propriety of the court’s action in directing a verdict we must disregard all adverse evidence and consider only that evidence, together with all reasonable inferences properly drawn therefrom, favorable to plaintiff’s case. If there was any probative evidence of negligence and proximate cause the directed verdict was improper. Since defendant elected to proceed with its evidence after plaintiff closed her case, the issue is to be decided from the evidence on the whole case rather than on plaintiff’s case alone. 56 Tex.Jur.2d Trial, Sec. 220 p. 563.

The evidence, viewed most favorably to plaintiff’s case, was as follows:

Ned Harris was in Dallas with his sister and other young people attending Expío ’72. They were staying at defendant’s motel which had a small swimming pool as part of its facilities. Several of the group, including Ned, had gone swimming there on Wednesday night without incident, and on Thursday night Ned and others again went swimming. While he was in the pool on that evening Ned encountered some difficulty and began to call for help. Two of his companions, a boy and a girl, successively got in the water and tried to get hold of him but were unable to do so. Mr. Albuquerque, who was a guest at the motel, saw Ned struggling in the water and jumped in to attempt a rescue. By the time he got into the water, Ned had submerged and was at or near the bottom of the pool, and Albuquerque could not get to him because of the resistance of his own clothing and shoes. Albuquerque then got out and a friend of his dived in, but he was also unable to reach Ned. These two men then grabbed two aluminum poles which were nearby and used them to reach the victim. As neither pole had a hook, loop or other pulling facility on it, the men could not get "ahold” of Ned to pull or lift him out of the water, but could only push him in an attempt to move him to shallow water. After some time and considerable difficulty they finally succeeded in pushing the boy to the shallow portion of the pool where he could be reached and was pulled out of the water. Attempts to revive him failed. Albuquerque testified that because the poles had no hook or pulling facility it was difficult ■ to move the boy and it “ . . . took some time, I don’t know how much, but it took seconds or minutes to do this because the poles, of course, they are long and aluminum, and we use them to push, not to pull, because there was no way to get ahold.” He further testified that if the poles had been equipped with some type of pulling device he could have effected a speedier recovery. One of the poles bent as it was used in an attempt to push Ned to the shallow area.

Ordinance No. 8479 of the City of Dallas regulating the operation of public and semipublic swimming pools, required that one unit of “safety equipment” be available at all such pools at all times the pools were in use. One unit of lifesaving equipment was defined by the ordinance as including “ . . .a life pole or shepherd’s crook type of pole with minimum length handle of twelve feet; . . . ”

There was evidence that the poles which were provided at the pool were merely straight aluminum poles without any hook or pulling device. The court was therefore required to decide whether a straight pole without such a hook or pulling device was a “life pole” within the meaning of the ordinance. If it was not, the jury could have found from the evidence that the defendant violated the ordinance in failing to provide a life pole. Such a violation would be negligence per se. 40 Tex.Jur.2d Negligence, Sec. 11 p. 456; Alpine Telephone Corporation v. McCall, 143 Tex. 335, 184 S.W.2d 830 (1944). The construction of the ordinance, was a question of law to be determined by the court. 53 Tex.Jur.2d Statutes, Sec. 152 p. 219; Freels v. Walker, 120 Tex. 291, 26 S.W.2d 627 (1930, opinion adopted). The same general rules of construction which apply to statutes apply also to municipal ordinances. Reed v. City of Waco, 223 S.W.2d 247 (Tex.Civ.App. Waco 1949, writ ref’d). The prime objective in such construction is to determine the intention of the legislative body. Bolton v. Sparks, 362 S.W.2d 946 (Tex.1962). To assist in ascertaining the legislative intent resort may be had to several sources. Among these are (1) the object and purpose of the enactment and the evils sought to be prevented, 39 Tex.Jur.2d Municipal Corporations, Sec. 267, p. 594; Hargrave v. Texas & P. Ry. Co., 12 S.W.2d 1009 (Tex.Comm’n App. 1929, jdgmt. adopted); (2) the meaning of the words actually used, 53 Tex.Jur. 2d Statutes, Secs. 146, 147; and (3) the construction placed upon the enactment by the officers or agencies charged with its administration or enforcement. Calvert v. Kadane, 427 S.W.2d 605 (Tex.1968); Heard v. City of Dallas, 456 S.W.2d 440 (Tex.Civ.App. Dallas 1970, writ ref’d n. r. e.). In determining the meaning of the words used, an attempt will be made to harmonize the various provisions of the enactment, and the words will be given their usual and ordinary meaning, except that where technical words or words of a particular art, trade or activity are used they will be given the meaning recognized by persons engaged in that particular art, trade or activity. 53 Tex.Jur.2d Statutes, Sec. 150 p. 217; Hindes v. Lock, 259 S.W. 156 (Tex.Comm’n App. 1924. jdgmt. adopted); Texas & N. O. R. Co. v. Kelso Building Material Co. Inc., 250 S.W.2d 426 (Tex.Civ.App. Galveston 1952, writ ref’d n. r. e.); Vernon’s Tex.Rev.Civ.Stat.Ann. art. 10. In the latter case, the testimony of persons engaged in or familiar with that art, trade or activity is admissible to explain the meaning. 82 C.J.S. Statutes Sec. 361 p. 793; Order of Railway Conductors of America v. Swan, 329 U.S. 520, 67 S.Ct. 405, 91 L.Ed. 471; Southern Pacific Company v. Brown, 207 Or. 222, 295 P.2d 861 (1956); Hillman v. Northern Wasco County People’s Utility District, 213 Or. 264, 323 P.2d 664 (1958).

Considering first the object and purpose of the ordinance and the evils sought to be prevented, it is obvious that the requirements for lifesaving equipment were designed to facilitate the rescue of persons in danger of drowning. With respect to a “life pole”, it is common knowledge and was confirmed by inferences from the testimony, that a pole without a pulling device is reasonably effective to rescue only those persons who are still conscious and able to grasp the pole so that others can pull them to safety; whereas, a pole with a hook or pulling device can be used to retrieve unconscious persons who may still be alive and subject to resuscitation even though they are submerged. In view of the fact that a comprehensive unit of lifesaving equipment was envisioned by the ordinance, it seems unreasonable to suppose that the requirement would be satisfied by a pole which would be effective in the former case but not in the latter case. The phrase “life pole or shepherd’s crook type of pole” surely did not mean either a pole with a hook or pulling device or one without such a device, but rather one of either type or designation with a pulling device. This appears to be further illustrated by the additional phrase “with minimum length handle of twelve feet”. If the ordinance meant a straight pole without anything else, it could have simply said “a life pole at least twelve feet in length.” The use of the word “handle” seems to presuppose that there would be something more.

In considering the meaning of the words used, we believe the term “life pole” is not one of common parlance or usage, but was used in the ordinance in a technical sense as applied to the particular trade or activity which the ordinance regulated — the operation of a public swimming pool and the lifesaving activities relating to it. As to the meaning of the term when applied to such activity, the only testimony was from defendant’s own witness, Dean Gray, who was Chief of the Water Quality Surveillance Section of the City of Dallas Health Department. Part of his duties was the inspection of swimming pools and the lifesaving equipment required by the City Ordinance. He testified that “life pole” and “shepherd’s crook” were two names for the same piece of equipment, and that a life pole “ . . . has a ‘U’, looks like a U-shaped end on it, looks like a shepherd’s crook.” To the question “When you say life pole or shepherd’s crook, you’re talking about one and the same thing, is that correct?”, he answered “Yes, sir, . . . ”. The testimony of Gray, who was familiar with the meaning of the words in the trade or business to which they applied and who was also an officer charged with the administration and enforcement of the ordinance, was entitled to weight. Heard v. City of Dallas, supra.

Since all of the aids to construction which were available to the trial court were to the same effect, we believe it was established that a “life pole” as required by the ordinance must be one equipped with a hook or other pulling device. The jury could have found from the evidence that defendant did not have such a life pole available, thus rendering defendant guilty of negligence per se.

It next becomes necessary to determine if from the evidence and inferences to be drawn therefrom, the negligence in failing to provide a life pole could have been a proximate cause of the death of Ned Harris.

In the context of this case, proximate cause would be an act or omission which caused or failed to prevent the injury. See 40 Tex.Jur.2d Negligence, Sec. 18 p. 469. It is ordinarily a fact question for the jury. In the determination of that fact question the jury is allowed broad latitude to infer proximate cause from the evidence and the circumstances surrounding an accident. Thoreson v. Thompson, 431 S.W.2d 341 (Tex.1968); Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352 (Tex. 1951); Weingarten v. Brockman, 135 S. W.2d 698 (Tex.Comm’n App. 1940, opin. adopted); Peveto v. Smith, 134 Tex. 308, 133 S.W.2d 572 (1939, opin. adopted). This is especially so in drowning cases where it is not possible to produce direct proof that a person could have been rescued if a lifeguard or proper lifesaving equipment had been provided. McFarland v. Grau, 305 S.W.2d 91 (St. Louis Ct. of App., Mo.1957); Collins v. Riverside Amusement Park Co., 61 Ariz. 135, 145 P.2d 853 (1944); City of Longmont v. Swearingen, 81 Colo. 246, 254 P. 1000 (1927).

In this case the testimony of defendant’s own witness, Albuquerque, made it clear that the lack of a pole with a hook or pulling device caused a significant delay in the rescue because the poles could only be used to push the boy to the shallow portion of the pool where he could be retrieved by hand. His testimony also made it clear that the retrieval would have been quicker had the pole been equipped with a hook. The testimony also confirmed that the boy had not been submerged long when Albuquerque and his friend began to use the poles. Albuquerque first observed the boy “bobbing up and down” in the water. When Albuquerque made his unsuccessful attempt at rescue by entering the water, Ned had descended to or near the bottom of the pool. Albuquerque and his friend then got out and used the poles. Reasonable minds could infer from this evidence that, had the poles been as required by the ordinance, the boy could have been retrieved quickly enough to prevent his death. Prompt resuscitation efforts are frequently successful even though the victims have already lost consciousness when such efforts are begun. Many cases have held that circumstances similar to those here were sufficient to make a fact issue on proximate cause. The cases cited are not analogous on the issues of negligence but are analogous on the issue of proximate cause. See Luck v. Buffalo Lakes Inc., 144 S.W.2d 672 (Tex.Civ.App. Amarillo 1940, writ dismd jdgmt. cor.); Brumm v. Goodall, 16 Ill.App.2d 212, 147 N.E.2d 699 (1958); McFarland v. Grau, supra; Langheim v. Denison Fire Dept. Swimming Pool Ass’n., 237 Iowa 386, 21 N.W.2d 295 (1946); Collins v. Riverside Amusement Part Co., supra; Lindsey v. De Vaux, 50 Cal.App.2d 445, 123 P.2d 144 (1942); Nordgren v. Strong, 110 Conn. 593, 149 A. 201 (1930); City of Longmont v. Swearingen, supra; Brotherton v. Manhatten Beach Imp. Co., 48 Neb. 563, 67 N.W. 479 (1896). A careful analysis reveals that in the cases of this type which have held evidence of proximate cause to be insufficient, there was no evidence to indicate the circumstances surrounding the death. A body was simply found lying under or floating upon the water, with no indication how or when death occurred. See, for example, Hahn v. Perkins, 228 N.C. 727, 46 S.E.2d 854 (1948).

For the reasons stated and in view of the liberal rules approved in Hopson v. Gulf Oil Corp., supra, and many other cases, we conclude there was probative evidence of such causal relation and foreseeability as are required for a finding of proximate cause, and that plaintiff was entitled to have such issue submitted to the jury. Points of error 2 and 3 are therefore sustained.

The judgment is reversed and the cause remanded for a new trial. Plaintiff’s other point of error is overruled.

ON REHEARING

In its motion for rehearing, appellee asserts that Mr. Albuquerque testified only that the pole he used did not have a hook or pulling device, and that therefore there is no evidence that the pole used by his companion did not have such a hook.

Mr. Albuquerque testified in part as follows:

“ . . . I saw these aluminum poles there, and I picked one up, ... I picked up another one and gave it to Joe, and both of us then pushed This took some time, I don’t know how much, but it took seconds or minutes to do this because the poles, of course, they are long and aluminum, and we use them to push, not pull, because there was no way to get ahold.” (SF224)
* * * * * *
“ . . . Joe and I, we both used the poles, one on each side of the pool . . . (SF225)
******
“Q. Did that pole you talked about have a hook on it ?”
“A. No, sir.”
“Q. Had it had a hook on it, could you have placed it down into the water, hooked onto the body and pulled him out?”
“A. The hook on the end of the pole would make a speedier recovery of the boy . . .
“Q. . . . had there been a pole with a hook, you could have least made it easier for you?”
“A. I would say it would make a speedier recovery.” (SF239)

We believe a reasonable interpretation of Albuquerque’s testimony is that neither pole had a hook or pulling device. Of course, there was other testimony about poles. One witness testified that there was no pole at all at the pool except a wooden stick about ten feet long. Another witness testified that there was one pole about five feet long which did not have any hook. The motel manager testifed that a “shepherd’s crook” was a part of the equipment kept by the motel and that it was in the pool area when Ned Harris drowned. Mr. Nagy testified that the morning after the drowning he inspected the pool and found “the shepherd’s hook” pole, which had been bent, but Mr. Albuquerque testified that the pole he used was the one which was bent in the rescue attempt. These were simply conflicts in the testimony which only the jury could resolve and the adverse portions of which we must disregard in determining the propriety of a directed verdict against appellant.

The motion for rehearing is respectfully overruled.

       The required equipment also included a ring buoy with rope, a separate throwing line, a guard line separating the shallow and deep portions of the pool, and a telephone with selected list of numbers for ambulance, hospitals and rescue units.


author: BISSETT, Justice.

text:
    Margarita SAENZ et al., Appellants, v. Thomas J. LACKEY et al., Appellees.
    No. 931.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 10, 1975.
    Rehearing Denied May 8, 1975.

      Irma Rangel, Garcia & Rangel, Kings-ville, Canales & Garza, Corpus Christi, for appellants.
    Travis A. Peeler, Prichard, Peeler & Smith, Corpus Christi, for appellees.
   OPINION

BISSETT, Justice.

This appeal involves both the granting of a temporary injunction, and the refusing of a temporary injunction. Thomas J. Lackey, Betty Jo Haass and Ann R. Brooks, taxpayers and property owners in the City of Kingsville, Texas, individually, and as representatives of other taxpayers and property owners in the City, instituted suit on July 22, 1974, against the City of Kingsville, the Mayor and City Commissioners. Plaintiffs, in their original petition, alleged that an agreement made on July 10, 1974, by and between the City and Margarita Saenz was void. In addition to other relief prayed for, plaintiffs sought a temporary injunction that would enjoin the City from implementing the agreement, pending trial on the merits. Margarita Saenz was made a party defendant on July 29, 1974, which was before a hearing was had on the application for injunction. Trial was to the court without the aid of a jury. The trial court refused to temporarily enjoin the City from employing Margarita Saenz as Tax Assessor-Collector of the City of Kingsville, but did temporarily enjoin the City from paying of certain monies to her. The plaintiffs have appealed from that portion of the order which refused the temporary injunction sought by them. Margarita Saenz, hereinafter referred to as “Mrs. Saenz”, has appealed from that portion of the order which temporarily enjoined the City from paying any monies to her.

Prior to September, 1971, Mrs. Saenz had been employed in the office of the Tax Assessor-Collector for the City of Kings-ville for approximately nineteen (19) years as an assistant to Mr. T. A. Reid, the then Tax Assessor-Collector. Mr. Reid resigned in September, 1971, and Mrs. Saenz was made “acting Tax Assessor-Collector”. She worked for the City in that capacity until August 15, 1972. On July 29, 1972, she was informed that Mr. R. G. Nelson had been hired as Tax Assessor-Collector for the City of Kingsville. Mrs. Saenz tendered her written resignation as “acting Tax Assessor-Collector” for the City on August 1, 1972, effective August 15, 1972. Her resignation was accepted by the City Manager. Upon leaving her employment, Mrs. Saenz drew her accrued sick leave pay and accrued vacation pay, but left her retirement accumulations on deposit in order for such monies to accrue interest.

Mrs. Saenz, on or about August 7, 1972, filed a complaint with the United States Equal Employment Opportunity Commission, hereinafter referred to as “EEOC”, wherein she complained of the action taken by the City in employing Mr. Nelson as Tax Assessor-Collector. On or about May 17, 1974, she received her “notice of right to sue” letter from the Commission, pursuant to Title VII of the Civil Rights Act of 1964.

On July 10, 1974, the City entered into a written agreement with Mrs. Saenz which provided for: 1) her reinstatement to the office of tax assessor-collector; 2) payment of retirement benefits to her as though she had never left her job; and 3) payment to her of the amounts of sick leave and vacation pay to which she would have been entitled had she not resigned. In return, Mrs. Saenz agreed to release the City of Kingsville from any liability it might incur as a result of the complaint filed by her with the EEOC. On July 22, 1974, at 8:45 o’clock a. m., Mrs. Saenz was “reinstated” as Tax Assessor-Collector of the City of Kingsville, which was thirty (30) minutes before this suit was filed.

A temporary restraining order was issued without notice at 9:15 o’clock a. m. on July 22, 1974, and a hearing thereon was set for August 1, 1974 at 9:30 o’clock a. m. Following the hearing, the trial court refused to enjoin the employment of Mrs. Saenz as Tax Assessor-Collector of the City on the ground that a temporary injunction should not be granted because Mrs. Saenz had been so employed “as of 8:45 o’clock A.M. on the morning of July 22, 1974, and prior to the issuance of the temporary restraining order by this Court at 9:15 o’clock A.M. on that date”, and, further, that “the proper action to attack such employment would be in the nature of quo warranto”, and not by injunction. The plaintiffs complain in a single point of error of that ruling in this appeal. The trial court, however, granted a temporary injunction, pending final determination of the cause, which enjoined the City of Kingsville, the Mayor, the City Commissioners, and the City’s agents or employees from “paying or causing to be paid from the City funds of the City of Kingsville” to Mrs. Saenz any money agreed to be paid to her under the July 10, 1974 agreement. Mrs. Saenz, in three points of error, complains of that ruling in this appeal.

Where none of the plaintiffs are asserting a claim to the office challenged, as is the case presented by this appeal, the authorities in this State hold that a proceeding in quo warranto is the exclusive legal remedy afforded to the public by which it may protect itself against the unlawful occupancy of public office by an occupant. State of Texas v. Bullock, 491 S.W.2d 659 (Tex.Sup.1973); Williams v. Castleman, 112 Tex. 193, 247 S.W. 263 (1922); Hamman v. Hayes, 391 S.W.2d 73 (Tex.Civ.App.—Beaumont 1965, writ ref’d).

Despite the allegations in plaintiffs’ trial pleading that the appointment of Mrs. Saenz to the office of Tax Assessor-Collector was illegal, void and invalid for the several reasons therein set out, and notwithstanding the evidence which was introduced by plaintiffs in support of such allegations, injunction was not the proper remedy in this case for determining the legality of the appointment of Mrs. Saenz to the office. Mrs. Saenz, at the time suit was filed, had already been appointed and that part of the July 10, 1974 agreement had already been implemented. It, therefore, became impossible to grant relief by way of injunction. The act sought to be enjoined had already been accomplished when suit was filed. The plaintiffs simply did not ask for the only coercive relief that was possible at the time they filed suit, i. e., quo warranto to oust Mrs. Saenz from office. Accordingly, plaintiffs’ point is overruled.

There may be some question as to whether Mrs. Saenz, alone, has legal standing to appeal that portion of the judgment which restrained the defendants, City of Kings-ville, the Mayor, the City Commissioners, and the City’s agents and employees, from paying her any monies out of City funds, pending final determination of the issues raised by plaintiffs’ pleadings. The injunction under attack by Mrs. Saenz did not enjoin her from doing anything, although, as a practical matter, she was affected thereby. Neither Mrs. Saenz nor any of the other defendants pled affirmative defenses to plaintiffs’ action. The City, the Mayor, and the City Commissioners (the remaining defendants) did not perfect an appeal from that portion of the order appealed by Mrs. Saenz. Therefore, the trial court’s order is now binding on them. However, we do consider the points raised by Mrs. Saenz in her appeal. In doing so, we assume, arguendo, that she has a legal right to attack the portion of the order which enjoined the City from paying the aforesaid monies to her, as provided by the agreement.

Mrs. Saenz, in her first two points of error, asserts that the trial court erred in overruling her motion to dismiss plaintiffs’ action on the ground that it did not acquire jurisdiction over her, and that the trial court erred in finding that plaintiffs had established that they had a justiciable interest in the cause presented. The record shows that all of the plaintiffs owned property within the city limits of the City of Kingsville at the time suit was filed, and that none of them owed any delinquent taxes to the City. The evidence discloses that a public meeting was held to decide what action, if any, would be taken concerning the July 10, 1974 settlement agreement. It was there decided that some action should be taken to prevent the City of Kingsville from employing Mrs. Saenz as Tax Assessor-Collector, and from paying her the monies specified in the agreement. There was testimony that plaintiffs, by nomination and decision of those present at the meeting, were authorized and instructed to take whatever action they deemed necessary concerning the dispute that had arisen between a substantial number of the citizenry of Kingsville on the one hand, and the City and Mrs. Saenz on the other.

Mr. Keaton, who was suspended as City Manager of the City of Kingsville on July 19, 1974, testified that there was no provision in the City’s current budget for the payment of any money to Mrs. Saenz with respect to the sick leave pay, vacation pay, and retirement benefits provided by the July 10, 1974 agreement. He further testified that any such payments, if made, would have to be made out of the general fund, and that tax money was commingled and mixed in with general fund money. The Mayor testified that, as of the date of the hearing, neither he nor the City Commission had decided what fund would be used with which to pay the monies to Mrs. Saenz as set out in the agreement.

The Supreme Court in Osborne v. Keith, 142 Tex. 262, 177 S.W.2d 198 (1944), recognized the right of a taxpaying citizen to maintain an action in a court of equity to enjoin public officials from expending public funds under a contract that is void or illegal. In Hoffman v. Davis, 128 Tex. 503, 100 S.W.2d 94 (1937, opinion adopted), the court held that when a taxpayer brings an action to restrain the illegal expenditure by the commissioners’ court of tax money he sues for himself, and that his interest in the subject matter is sufficient to support the action. The rules announced in those cases apply to this case.

As has been noted, Mrs. Saenz, prior to the institution of this suit by plaintiffs, filed a complaint with the EEOC, wherein she complained that her civil rights had been violated by the persons named therein. She argues that the trial court did not have jurisdiction over her, because plaintiffs’ suit was endangering the federal court’s jurisdiction. The argument is without merit. Mrs. Saenz did not file any pleading to that effect in the trial court. The filing of the complaint with the EEOC was merely a prerequisite to seeking judicial consideration of the complaint. The attorney for Mrs. Saenz stated at the hearing on plaintiffs’ application for temporary injunction that there was no pending federal litigation concerning the claim. Furthermore, there was no evidence of any attempt by Mrs. Saenz to enjoin the trial court from conducting the hearing in this case. There being no showing that any federal jurisdiction was invoked by Mrs. Saenz, the proceeding in the trial court did not endanger any federal court’s jurisdiction. See Mitchum v. Foster, 407 U. S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972).

We hold that plaintiffs had legal standing to bring the action; that they had a justiciable interest in the action, both individually and as representatives of the class for whom they sued; that the trial court had jurisdiction over the subject matter of the suit and of Mrs. Saenz; and that the proceedings in the trial court did not endanger the jurisdiction of any federal court.

Mrs. Saenz, in her third point of error, complains that the trial court erred in temporarily enjoining the City in paying any monies to her for lost sick leave pay, lost vacation pay and lost retirement benefits, because plaintiffs did not establish a proper right and a probable injury, for which they had no adequate remedy at law. We disagree.

In order for the trial court to properly grant an application for a temporary injunction, the applicant need show only a probable right and probable injury; he is not required to establish that he will finally prevail in the litigation. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 552 (1953). In the case at bar, a bona fide dispute existed at all times pertinent to this appeal concerning plaintiffs’ right to the ultimate relief sought by them in their action. It is clear from the evidence adduced at the hearing that plaintiffs, being citizens and taxpayers of the City of Kingsville, did show a probable right and a probable injury in that tax funds in the possession of the City would be used to pay Mrs. Saenz for allegedly unearned and unaccrued benefits pursuant to an agreement which plaintiffs contend is void. The legality of the agreement was not before the trial court on the date of the hearing and is not before this Court in this appeal, and we express no opinion thereon.

It is well settled in this State that a temporary injunction prevents the doing of an alleged unlawful or wrongful act during the pendency of proceedings that seek permanent relief, and is a remedy allowed by the court before trial of the case on the merits for the sole purpose of preserving the subject matter of the controversy as it existed at the time suit was instituted. Dallas General Drivers, Etc. v. Wamix, Inc., of Dallas, 156 Tex. 408, 295 S.W.2d 873 (1956); City of Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973 (1931). It is equally well settled that the trial court is clothed with broad discretion in determining whether qr not to grant an application for a temporary injunction, and the court’s ruling thereon will be reversed only upon the showing of a clear abuse of discretion. State v. Cook United, Inc., 469 S.W.2d 709 (Tex.Sup.1971); Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460 (1952).

The status quo of the subject matter of the dispute between plaintiffs and Mrs. Saenz should be preserved pending a trial of the case on its merits. No abuse of discretion is shown by the granting of the temporary injunction. We have considered all of the points which have been brought forward by Mrs. Saenz and they are all overruled.

Costs of this appeal are assessed one-half (½) to plaintiffs, and one-half (½) to Mrs. Saenz.

The judgment of the trial court is affirmed.


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    Carolyn HOLLINGSWORTH, Individually and d/b/a Insurance Associates, Appellant, v. NORTHWESTERN NATIONAL INSURANCE COMPANY, Appellee.
    No. 8251.
    Court of Civil Appeals of Texas, Texarkana.
    March 25, 1975.

      Frank L. Supercinski, Longview, for appellant.
    Guy N. Harrison, Longview, for appel-lee.
   CORNELIUS, Justice.

Appellee filed suit against appellant upon sworn account to recover $789.55 and attorney’s fees. In a jury trial, appellee recovered judgment. Appellant urges twelve points of error.

Appellee’s petition alleged that “As shown in the attached statement of account, Plaintiff sold to Defendant goods, services, wares, and merchandise, which Defendant accepted and thereby became bound to pay to Plaintiff the stated price thereof, which is a reasonable, fair, and customary price.” Attached to the petition was a list of what appeared to be premiums due for certain insurance policies and the usual “sworn account” affidavit. The appellant filed a verified denial of the account and later filed a cross-action claiming that, as agent of appellee, she had actually overpaid the amounts she owed ap-pellee, and was therefore entitled to recover $441.48.

At the trial, appellee made no attempt .to prove the allegations of its petition, but rather introduced evidence to show that it issued insurance policies to customers of appellant, and that by the terms of her agency contract appellant was obligated to pay certain premium installments which those customers owed, but had not paid, to appellee on the policies. Evidence was introduced that the amounts shown in the verified account represented such unpaid premiums. At the outset and throughout the trial, appellant vigorously objected to evidence of any such contractual obligation, claiming that it was not within the cause of action pleaded. The objections were overruled. At the close of appellee’s case, appellant moved for an instructed verdict on the additional ground that ap-pellee had failed to introduce any evidence to prove the cause of action which it had alleged. That motion was also overruled. Appellant then objected to the submission of special issues to the'jury on the account, but these objections were overruled. The jury found for appellee on the issues of account as submitted and against appellant on her cross-action.

In this appeal appellant contends, among other things, that her motion for instructed verdict should have been sustained because there was no evidence to prove the cause of action which appellee alleged. Appellee contends that its evidence was sufficient to prove the cause of action alleged as a sworn account. We have concluded that appellant’s motion for instructed verdict should have been granted.

The cause of action which appellee attempted to sustain by its evidence was not an action on sworn account within the meaning of Rule 185, Texas Rules of Civil Procedure. That rule applies only to actions involving the sale of goods, wares and merchandise whereby title to personal property passes from one party to another and the relation of debtor and creditor is thereby created, or where the action is for personal services rendered or for labor done or for labor or materials furnished. It does not apply to transactions between parties resting upon special contracts other than those giving rise to the transactions mentioned in the rule. Langdeau v. Bouknight, 162 Tex. 42, 344 S.W.2d 435 (1961); Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75 (1958); Searle-Taylor Machinery Company, Inc., v. Executive Car Leasing Company of Houston, 477 S.W.2d 696 (Tex.Civ.App. Houston 14th Dist. 1972, no writ); Mergele, d/b/a Bexar Vending Company v. Houston, Jr., d/b/a Sam Houston Vending Company, 436 S.W.2d 951 (Tex.Civ.App. San Antonio 1968, writ ref’d n. r. e.); Robinson v. Faulkner, 422 S.W.2d 209 (Tex.Civ.App. Dallas 1967, writ ref’d n. r. e.); Ball v. Cooper-Stanley

Company, Inc., 413 S.W.2d 467 (Tex.Civ. App. Dallas 1967, no writ); Parmer v. Anderson, 456 S.W.2d 271 (Tex.Civ.App. Dallas 1970, no writ); Mauldin v. Sullivan, 484 S.W.2d 157 (Tex.Civ.App. Eastland 1972, no writ); Langdeau v. Bouknight, supra, was a case with facts strikingly similar to those here, except that the petition there did not rely merely upon the formal language of Rule 185, but specifically alleged the agency agreement and sought recovery under the contract provisions, with the unpaid premiums being set out in a “sworn account”. There, the Supreme Court said, “As to what is meant by ‘sworn account’, under our holding in Meaders v. Biskamp, Tex.1958, 316 S.W.2d 75, Langdeau’s cause of action is not founded upon a sworn account, although he verified the same.” Although Langdeau v. Bouknight and others of the cases cited, determined the narrow issue that “sworn account” as used in Art. 2226 means only the traditional sworn account recognized at common law, several of those cited involved the specific applicability of Rule 185, and all of them are consistent with the explicit language of the rule.

Formerly, an action in sworn account could only be founded on an “open account” as distinguished from an “account stated” (an agreed or liquidated amount). Wroten Grain & Lumber Company v. Mineola Box Mfg. Co., 95 S.W. 744 (Tex.Civ.App. 1906, no writ). In an amendment to the statute (now Rule 185) the phrase “. . . including claims or suits for liquidated demands based upon written contracts or business dealings between the parties” was added after the phrase “claim for goods, wares or merchandise”, in order to make accounts stated as well as open accounts included in the actions contemplated by the rule. See emergency clause (Sec. 2) of H.B. 348, 42nd Leg.Reg.Session, Gammel & Son Laws of Texas, p. 394. Glasco v. Frazer, 225 S.W.2d 633 (Tex.Civ.App.Dallas 1949, writ dism’d). The addition of such language did not, however, enlarge the rule to cover actions oth er than for goods sold, services rendered or labor done or materials furnished.

It is true that an action on sworn account presupposes a contract between the debtor and creditor. Dyche v. Simmons, 264 S.W.2d 208 (Tex.Civ.App. Ft. Worth 1954, writ ref’d, n. r. e.). But the contract must be for the items of liability specified in Rule 185. It is also true that a suit for insurance premiums may be brought as a sworn account, if it is for the recovery of premiums on policies sold by the plaintiff to the defendant. Rudi’s Automotive Corporation v. Heeth, 509 S.W.2d 428 (Tex.Civ.App. Houston 1st Dist. 1974, no writ); Moore v. McKinney, 151 S.W.2d 255 (Tex.Civ.App. Dallas 1941, no writ); Crowe v. Union Automobile Ins. Co., 79 S.W.2d 168 (Tex.Civ.App. El Paso 1935, writ dismissed). That is not the case here. Ap-pellee did not seek to recover premiums on policies sold to the appellant, but on those sold to third parties.

Regardless of whether appellee’s real caus.e of action here was properly brought as a sworn account, appellee wholly failed to prove the specific cause of action it alleged. Sworn account is not a form 'of fictitious pleading which will allow proof of just any cause of action for debt. It is not a substantive cause of action but is merely a rule of evidence which, if there is no proper denial, avoids the: necessity of proving the correctness of the account. Meaders v. Biskamp, supra; Wilkinson v. Texas Employers’ Insurance Association, 444 S.W.2d 222 (Tex.Civ.App. San Antonio 1969, no writ) ; McCollum v. May, 396 S.W.2d 170 (Tex.Civ.App. Dallas 1965, no writ). But proof of the contract or sale which gave rise to the account must be made as alleged. Here appellee pleaded a sale of goods, wares, merchandise and services to the appellant. There was no trial amendment or any request therefor. The proof, on the other hand, was to the effect that policies of insurance were sold to third parties and that by special contract appellant had agreed to pay the premiums therefor which the third parties did not pay.

It is elementary that a plaintiff must recover, if at all, on the contract alleged. If an essentially different contract is proved he must fail, unless the issue has been tried by consent under Rule 67, Tex. R.Civ.P. Morris v. Kasling, 79 Tex. 141, 15 S.W. 226 (Tex.1890); Island City Boating & Athletic Ass’n. v. New York & T. S. S. Co., 80 Tex. 375, 16 S.W. 112 (1891); Giant Mfg. Co. v. Davis, 121 S. W.2d 590 (Tex.Comm’n App. 1938, opin. adpt.); Gilmer v. Graham, 52 S.W.2d 263 (Tex.Comm’n App.1932, holding approved); Hillmer v. Asher, 29 S.W.2d 1011 (Tex.Comm’n App.1930, holding approved); Snow v. Prince, 13 S.W.2d 342 (Tex.Comm’n App.1929, ja'grnt. adpt.); West Texas Utilities Company v. Pirtle, 444 S.W.2d 202 (Tex.Civ.App. Eastland 1969, no writ); Stradley v. Southwestern Life Insurance Company, a Corporation, 341 S.W.2d 195 (Tex.Civ.App. Dallas 1960, writ ref’d n. r. e.); Parker v. Bradley, 289 S.W.2d 795 (Tex.Civ.App. Fort Worth 1956, no writ); O-W-R Oil Co., Inc., v. Sowell, 82 S.W.2d 1099 (Tex.Civ. App. Waco 1935, writ dism’d); Batson v. Coley & Wilson, 59 S.W.2d 445 (Tex.Civ.App. Waco 1933, no writ). One cannot recover on a different right from that asserted, it matters not what the prayer may be. Jennings v. Texas Farm Mortg. Co., 124 Tex. 593, 80 S.W.2d 931 (Tex.Comm’n App.1935, opin. adpt.); Verschoyle v. Holifield, 132 Tex. 516, 123 S.W.2d 878 (Tex.Comm’n App.1939, opin. adpt.). The pleadings and the evidence must correspond. Safety Casualty Co. v. Wright, 160 S.W.2d 238 (Tex.1942); Bethea v. Lockhart, 127 S.W.2d 1029 (Tex.Civ.App. San Antonio 1939, writ ref’d); Southern Underwriters v. West, 126 S.W.2d 510 (Tex.Civ.App. San Antonio 1939, writ ref’d); Traders’ & General Ins. Co. v. Low, 74 S.W.2d 122 (Tex.Civ.App. Amarillo 1934, writ ref’d). In Ellzey v. Allen, 172 S.W.2d 703 (Tex.Civ.App. Amarillo 1943, writ dism’d) suit was for a partnership accounting and for a one-half interest in certain land. At the close of their case plaintiffs announced that they had not made a case on the accounting and land issues, but requested and secured issues on certain contractual liabilities which they claimed the proof showed the defendant owed to them. Holding that an instructed verdict should have been rendered against plaintiffs, the court said:

“There was no prayer for contractual relief and no alternative pleading nor alternative prayer in the pleadings.”
“An allegation of fact for one expressed purpose will not put such facts in issue for another entirely different purpose and a plaintiff can recover only in the right in which he sues and upon facts stated in his pleadings as the basis of that right.”

Likewise, in this case, allegations that ap-pellee sold goods to appellant will not support proof that appellant contracted to pay the premiums for insurance policies sold to third parties.

There was no trial by consent in this case. Harkey v. Texas Employers’ Ins. Ass’n., 146 Tex. 504, 208 S.W.2d 919 (1948). The appellant consistently objected to evidence on the contractual theory. She moved for an instructed verdict at the close of appellee’s case. She objected to the submission of the issues to the jury. The fact that she attempted to combat the unauthorized evidence as best she could when it was admitted over her objections does not amount to trial by consent. Valley Ready-Mix Concrete Co. of McAllen v. Valley State Bank, 227 S.W.2d 231 (Tex. Civ.App. San Antonio 1950, no writ). Although appellant filed an answer and cross-action in which she alleged that she was the agent of appellee and that she had paid all amounts which she owed it, these allegations pertained to monies actually collected by appellant, a portion of which she was to remit to appellee, and it cannot be said that they joined issue on the contractual theory appellee attempted to prove. Neither did appellant’s failure to except to appellee’s pleadings amount to a waiver. The provisions of Rule 90, Tex.R.Civ.P. had no application here. Defectiveness of the pleadings was not the issue. Appellee simply failed to prove what was alleged. Harkey v. Texas Employers’ Ins. Ass’n, supra.

Appellant had a right to assume that the case made by the pleadings was the case, and the only one, she was called upon to defend. Westinghouse Electric Corp. v. Pierce, 153 Tex. 527, 271 S.W.2d 422 (1954). As the appellee’s evidence tended to prove an entirely different cause of action from that pleaded, appellant’s motion for instructed verdict should have been granted. As to appellant’s cross-action, the evidence introduced in support of it, even if undisputed, was from appellant herself and therefore only served to raise a fact issue which the jury resolved against her. The judgment of the trial court is therefore reversed and judgment is here rendered that appellee take nothing by its suit and that appellant take nothing by her cross-action. Appellant’s other points are not reached.

Reversed and rendered.