text:
    Robert PHILLIPS, Plaintiff-Respondent, v. Dorman FRAZIER, Defendant-Appellant.
    No. 10192.
    Missouri Court of Appeals, Springfield District.
    May 12, 1976.
    Rich D. Moore, Moore & Brill, West Plains, for plaintiff-respondent.
    Thomas B. Rosenberg, Willow Springs, for defendant-appellant.
   PER CURIAM:

Appellant’s motion for new trial was not ruled within 90 days after it was filed and per Rule 78.06, V.A.M.R., deemed denied on October 28, 1975. Appellant’s notice of appeal was filed November 12, 1975.

The judgment became final on October 28 [Rule 81.05(a), V.A.M.R.] and the notice of appeal was not filed within the ten day period as provided in Rule 81.04, V.A.M.R.

The notice of appeal not having been timely filed, we have no jurisdiction and must dismiss the appeal. Perryman v. Perryman, 507 S.W.2d 671 (Mo.App.1974). It is so ordered.

All concur.

HOGAN, J., not participating.


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    Ex parte Ruben G. SALIZAR.
    No. 52111.
    Court of Criminal Appeals of Texas.
    May 19, 1976.
    Jimmy Phillips, Jr., Angleton, James E. Brown, Lake Jackson, for appellant.
    Ogden Bass, Dist. Atty., Thomas W. Watson, Asst. Dist. Atty., Angleton, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from an order denying a reduction in bail pending appeal.'

The record reflects that on February 18, 1976, appellant was convicted of the offense of indecency with a child, V.T.C.A. Penal Code, Sec. 21.11. Punishment was assessed at ten years, the maximum possible for the offense, see V.T.C.A. Penal Code, Sec. 12.34. Bail pending appeal was increased from $5000 to $50,000, under the authority of Art. 44.04(d), V.A.C.C.P.

On March 3, 1976, sentence was imposed and notice of appeal given. A hearing on bail reduction pending appeal was held the same day.

The State presented no evidence at the hearing. Appellant’s wife testified that neither she nor appellant could make bail in the amount of $50,000. She stated that she had unsuccessfully attempted to raise that amount from relatives and friends. She testified bail in the amount of $20,000 could be made.

Appellant had made the original trial bond of $5000. Until he was convicted he had continued to work. After his incarceration for inability to make the increased amount, his family was left with no income.

The record further reflects that appellant had previously been convicted of two felonies, both burglaries, in 1965 and 1969. It does not reflect any prior bond forfeiture or failure to appear.

In view of all the circumstances, we conclude that the amount of the appeal bond as set is excessive, and that bond in the amount of $20,000 is reasonable.

It is so ordered.


author: ROBERTS, Judge.

text:
    Ex parte Don H. WEAVER.
    No. 51531.
    Court of Criminal Appeals of Texas.
    May 26, 1976.
    Rehearing Denied June 16, 1976.

      Don H. Weaver, pro se.
    Ted Butler, Dist. Atty., Susan Spruce and Douglas C. Young, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is a habeas corpus application under Art. 11.07, V.A.C.C.P. Petitioner was convicted on July 13, 1970 of burglary with intent to commit theft, enhanced under Art. 62, V.A.P.C., in the 187th District Court of Bexar County. His punishment was fixed at twelve years.

Petitioner makes numerous attacks on the validity of his conviction, none of which have merit. The case was submitted on the limited question of his right to good time credits under Art. 6166v, V.A.C.S. Though petitioner’s success on this point would not entitle him to release, the duration of a prisoner’s confinement is a proper subject for habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).

Art. 6166v, adopted in 1927, allows inmates to receive certain bonus days credit for each month served without misconduct. The bonus days per month increase for each year the prisoner is in confinement. Art. 61847, V.A.C.S., adopted in 1943 and amended in 1945 and 1949, allows bonus days to be credited to an inmate’s sentence depending on his classification and trusty status. Under Art. 61847, alone, petitioner would be entitled to 30 days credit per month on his sentence, but under both good time statutes, he would be entitled to 34-35 days credit per month. The Texas Department of Corrections figures good time only under Art. 61847.

A close examination reveals the following language in Art. 61847, the last-enacted statute:

“No overtime allowance or credits, in addition to the commutation of time herein provided for good conduct, may be deducted from the term or terms of sentences . . . .”

The sentence quoted also states one exception which is not relevant here. We find the above-quoted language explicit enough to repeal Art. 6166v, and we so hold. It follows that petitioner is entitled to no relief.

The petition for writ of habeas corpus is in all things denied.


author: BROWN, Commissioner.

text:
    Bennie G. KIMBLE, Appellant, v. The STATE of Texas, Appellee.
    No. 51594.
    Court of Criminal Appeals of Texas.
    May 26, 1976.
    Pat McDowell, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky, Phil Dixon and Jim Walker, Asst. Dist. At-tys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for the offense of aggravated robbery under V.T.C.A. Penal Code, Sec. 29.03. The jury assessed punishment at thirty (30) years in the Texas Department of Corrections.

The sufficiency of the evidence is not challenged. The evidence showed that the appellant and another were identified as the two men who entered a Sizzler Steak House, and by the use of pistols took approximately three hundred dollars and also forty or forty-four steaks. The two were arrested thereafter following a chase by the Dallas police.

The appellant presents a single ground of error which reads as follows:

“The honorable trial court erred in permitting the codefendant to be brought before the jury in jail overalls and identified over appellant’s objection.”

The appellant argues that since it is clear that a defendant cannot be tried in jail clothing the same rationale should extend to the trial in general. The appellant further argues that since he is entitled to a fair trial he was prejudiced by having a man identified as his companion in the robbery exhibited to the jury and identified in jail clothing. The appellant then reasons that exhibiting the appellant’s companion in jail clothing was tantamount to forcing the appellant to trial in jail clothing.

We disagree.

In the very recent case of Estelle v. Williams, - U.S. -, 96 S.Ct. 1691, 48 L.Ed.2d 126 (decided May 3, 1976), the United States Supreme Court held that the Fourteenth Amendment to the United States Constitution prohibited a state from compelling an accused to stand trial while dressed in prison clothing. In reaching this conclusion the majority speaking through Mr. Chief Justice Burger stated:

“The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment. Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 904, 43 L.Ed.2d 103, 113 (1975). The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice. Long ago this Court stated:
“ ‘The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.’ Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 403, 39 L.Ed. 481, 491 (1895).
“To implement the presumption, courts must be alert to factors that may undermine the fairness of the fact-finding process.
* * * sjc ⅜ ⅜
“The potential effects of presenting an accused before the jury in prison attire need not, however, be measured in the abstract. Courts have, with few exceptions, determined that an accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption so basic to the adversary system.” (footnotes omitted)

Clearly, the Supreme Court in Estelle v. Williams, supra, is speaking to the accused’s right not to be tried in jail clothes because of the possible infringement of the accused’s presumption of innocence.

There is no showing of harm or prejudice to the appellant as contended in appellant’s brief and our own examination of the record discloses none. The evidence against the appellant was overwhelming and even had error been shown, the error would have been harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

The appellant’s ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.


author: DAVIS, Commissioner.

text:
    Larry Bill JARRELL, Appellant, v. The STATE of Texas, Appellee.
    No. 52185.
    Court of Criminal Appeals of Texas.
    June 2, 1976.
    Richard Alan Anderson, Dallas, for appellant.
    Henry Wade, Dist. Atty., William M. Lamb and Hugh Lucas, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from an order revoking probation.

On July 28,1975, appellant pleaded guilty to the offense of retaliation. See Y.T.C.A. Penal Code, Sec. 36.06. Punishment was assessed at two years probated.

The State filed a motion to revoke appellant’s probation on October 6, 1975, alleging that he violated condition (a) of his probation in that on September 28,1975 appellant “did then and there knowingly and intentionally threaten the said complainant, Kathy Eileen Hensleigh, with bodily harm or injury by threatening to kill said complainant.”

After a hearing on October 16, 1975, the court entered an order revoking appellant’s probation, finding that appellant had violated that condition of his probation which required that appellant “Commit no offense against the laws of this or any other state or the United States.”

Appellant contends that the court abused its discretion in revoking appellant’s probation in that the evidence was insufficient to support the court’s finding.

Kathy Hensleigh, aged thirteen, was at home with her younger brother and sister about 11:00 p. m. on September 28, 1975. The younger brother and sister were asleep and Kathy was in a bedroom studying when appellant started ringing the door bell. Kathy went to the door and appellant asked her to let him in, “He just kept saying, ‘Let me in.’ ” Kathy slammed the door and about ten minutes later “he [appellant] came back . . . and started ringing the door bell.” Kathy tried to call her mother on the phone to no avail. On this occasion Kathy did not go to the door and talked to appellant at a window, “because I didn’t want to open the door.” The testimony of Kathy reflects that the following transpired:

“I think I said something about the police. I — no, he said that I always called the police on my brother, and I said I didn’t; and then he all of a sudden — he says, ‘Well, you just go ahead and call the police, and I’ll kill you,’ and most of the things he said from then on, that I was going to— that he was going to kill me.
“Q. That he was going to kill you; is that right?
“A. Uh-huh.
“Q. How many times out there, Kathy, did he tell you he was going to kill you?
“A. About ten times.”

Kathy described appellant as acting “strange” and stated that she was “scared” and “afraid.” Appellant left when Kathy’s mother returned home. The testimony of Carol Hensleigh, mother of Kathy, reflects that she had ordered appellant to stay away from the house fearing that appellant was a bad influence on Kathy’s older brother.

Appellant urges that the evidence is insufficient to support the court’s findings in that the threat was not coupled with the ability to carry same out. Appellant points to evidence that he was talking to the complaining witness through a window and that the door to the house was locked. In addition, appellant urges that he was incapable of carrying out any threat because of a deformed arm. Appellant cites a number of cases under the former code.

We find the applicable statute to be V.T. C.A. Penal Code, Sec. 22.07, which provides in pertinent part:

“(a) A person commits an offense if he threatens to commit an offense involving violence to any person or property with intent to:
(1) . . .;
(2) place any person in fear of imminent serious bodily injury;
(3) . .
(b) An offense under this section is a Class B misdemeanor .

In Branch’s Annotated Penal Code, 3rd Edition, Sec. 22.07 (1973), the following comment appears:

“This section was intended to be very broad and cover all threats of violence where the intent was to cause fear, emergency action, or substantial inconven-fence. It should be realized that it is the desired reaction of the listener, irregardless of whether or not the threat is real, that constitutes the offense. The offense is new, and is designed to correct defects in the old Code which dealt only peripherally with the problem (see Articles 476 and 1265, P.C. 1925).” [Emphasis supplied.]

The Practice Commentary following V.T. C.A. Penal Code, Sec. 22.07, reads in pertinent part:

“The section is broad enough to cover threats to commit any crime of violence if the actor’s intent is to cause fear, emergency action, or substantial inconvenience. It also covers both threats against an individual that may not constitute assault and threats that cause public terror or inconvenience.”

We conclude that capability to carry out the threat is not an essential element of the offense set forth in V.T.C.A. Penal Code, Sec. 22.07, and find that the evidence supports the trial court’s finding in its order revoking probation. No abuse of discretion is shown in revoking appellant’s probation.

The judgment is affirmed.

ROBERTS, J., concurs in the result.

Opinion approved by the Court.

      . Condition (a) of the judgment of probation required that appellant “Commit no offense against the laws of this or any other State or the United States.”


text:
    George Edward ELDRIDGE, Appellant, v. The STATE of Texas, Appellee.
    No. 51559.
    Court of Criminal Appeals of Texas.
    June 9, 1976.
    Andrew McCulloch, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Paul D. Macaluso and R. Gary Noble, Asst. Dist. Attys., Dallas, Jim D. Yollers, States Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appeal is taken from a conviction for aggravated rape. After the jury returned a verdict of guilty, punishment was assessed by the court at thirty-five years.

A recitation of the facts is not necessary. The record reflects that the evidence was sufficient to show appellant’s guilt for the offense charged. However, the judgment must be reversed because of the admission in evidence of an extraneous offense.

Over appellant’s objection, the testimony of Mrs. G_B_was admitted into evidence. Mrs. G_B_identified appellant as the person who raped her on May 27, 1972 (the instant offense occurred on September 21, 1974) under circumstances very similar to those in the instant case. The two offenses occurred in the same area of the city and about the only significant difference in the circumstances surrounding the offenses was that appellant had a gun in the instant offense and a knife in the earlier case. The court instructed the jury that they could only consider the testimony of the extraneous offense in determining motive, intent, scheme or design of the appellant.

Appellant points to the fact that he did not testify, offered no evidence, and that the testimony of the prosecutrix was unim-peached.

The extraneous offense was not admissible under our holding in Albrecht v. State, 486 S.W.2d 97, wherein we said at page 100:

“This court has consistently held that an accused is entitled to be tried on the accusation made in the state’s pleading and that he should not be tried for some collateral crime or for being a criminal generally [citations omitted]. Evidence of other crimes committed by the accused may be admitted, however, where such evidence is shown to be both material and relevant to a contested issue in the ease.” (Emphasis added.)

There was no such issue in the instant case, as the State in its brief concedes. Therefore, admitting evidence of the extraneous offense was clearly erroneous.

After conceding that admission of the extraneous offense was error, the State contends that the error was harmless in view of the “overwhelming” evidence of guilt. With this contention we do not agree. That harmless error test of Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), is not applicable to the facts of this case.

The judgment is reversed and the cause remanded.

      . The record reflects that an earlier trial of appellant for this offense had ended with a hung jury.


author: GREEN, Commissioner.

text:
    Roger Glenn COOK, Appellant, v. The STATE of Texas, Appellee.
    No. 51560.
    Court of Criminal Appeals of Texas.
    June 9, 1976.

      George Michael Jamail, Beaumont, for appellant.
    Tom Hanna, Dist. Atty., and Jimmie R. Stanton, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant Roger Glenn Cook was convicted of possession of heroin, a controlled substance. Punishment was assessed at seven and a half years.

On the night of September 26, 1973, Billy Broadway, acting night manager of a 7-11 grocery store in Port Arthur, observed appellant and his companion, Harry Cook, steal several packages of pressed ham from the meat cooler. After paying for other groceries, but not for the meat which was concealed in appellant’s pants, the two men left in a car. When Broadway again saw the same two men in the store on the night of September 28, 1973, Police Officer Golden in a patrol car was stopped and notified of the theft of September 26. Golden saw appellant and Harry Cook leave the store and enter a car parked by the side of the store and start the motor. Although, as shown by the testimony of Golden, the car belonged to Harry Cook, appellant occupied the driver's seat, with Harry Cook on the passenger’s side. Golden asked them for their names, and then by use of his police radio ran an “outstanding warrant” check and learned that there was a warrant for appellant's arrest on a charge of aggravated assault. Appellant was arrested on the charge of shoplifting of the meat and also on the outstanding warrant. Harry Cook was also arrested for shoplifting. The two arrested men were taken to the police station, where they were “booked” for shoplifting of the meat, and appellant was also booked on the outstanding warrant. The car was driven to the “impound garage,” connected to the police department.

Officer Golden testified that:

“The department has a policy of anytime we arrest someone, we bring their car to the station and put it in the impound garage and inventory the contents to see if there is any valuable stuff, where we can list it, when the subject gets out of jail and it will be accounted for. It protects the officer and, also, the man’s property.”

He said this was the mandatory procedure of the Port Arthur Police Department. In pursuance of such policy, after the car was impounded Officer Golden, after listing its license number, color and description, entered it to determine “you know, valuables in it” and inventory them. He saw in clear view in the opened ashtray “in the front part of the car on the dashboard in the center” a brown Anacin bottle, and upon lifting the bottle, he saw a piece of foil rolled up inside it. Recognizing from his experience with such matters that heroin is generally sold wrapped in foil, he made further search of the driver’s seat and, underneath it, he found a white paper sack containing a brown bottle with a clear liquid in it, two syringes and some cotton balls. All of these items, as well as others, were listed on his inventory sheet, and turned over to the detective department.

It was stipulated that the rolled foil paper in the Anacin bottle contained heroin.

In his sixth ground of error, appellant complains of certain jury argument of the prosecuting attorney at the guilt stage. Appellant contends the court reversibly erred in overruling his motion for a mistrial due to such argument.

The record reflects that appellant and Harry Cook were jointly indicted for this offense. Both were represented by the same attorney. When the ease was called for trial, the jury panel being present in the courtroom, appellant’s motion to sever, to the granting of which the State in open court agreed, was sustained, and appellant alone was placed on trial.

The record reflects the following proceedings during the prosecuting attorney’s closing argument at the guilt stage:

“I want you to recall before I start into anything — when you were sitting out there the other day — you were sitting out there and we got ready to pick a jury and there were two people in this courtroom, this defendant and another defendant. You had an opportunity to look at them and you saw them and you saw Mr. Ja-mail request of the Court a severance so that they be tried separately.
“MR. JAMAIL [Defense]: Your Honor, I object to this. That’s a matter of law.
“THE COURT: Overruled.
“BY MR. DOYLE [STATE]:
“And he requested of the Court that a severance be granted. Now, our law is strange in that area. It’s unique and in some cases where two people are charged with the commission of the same crime you can’t try them both at the same time. That’s the way the law reads, and it’s a matter of fact. It’s something we have to live with.
“Mr. Jamail represents both of those men.
“MR. JAMAIL: Your Honor, I object to that. That’s an incorrect statement.
“MR. DOYLE: Your Honor, it’s not an incorrect statement.
“THE COURT: Overruled.
“BY MR. DOYLE:
“He was here and answered for both of them when the Court called the case.
“MR. JAMAIL: Your Honor, may I approach the bench?
“THE COURT: Yes, counsel.
“(At this point there was an off-the-record discussion at the Bench between the Court and counsel, after which time the following proceedings took place, as follows, to-wit:)
“THE COURT: Overruled.
“MR. JAMAIL: Note my exception to that.
“BY MR. DOYLE:
“I hope you see what’s going on. If you don’t, justice is blind. I can assure you of that, because this is a classic example of trickery. It is a procedural manner— “MR. JAMAIL: Your Honor, I object to this strenuously. He’s arguing outside the Record. This had nothing to do with the evidence.
“THE COURT: Yes. Disregard the word ‘trickery.’
Jfc ¾: ‡ ⅜ ‡ ⅜
“BY MR. DOYLE:
“I want you to imagine what Mr. Jamail is going to say when we try Harry Cook. “MR. JAMAIL: Your Honor, this is pure speculation—
“MR. DOYLE: ‘It’s him.’
“MR. JAMAIL: Your Honor, there’s no— it’s pure speculation. Harry Cook might come in here and plead guilty.
“THE COURT: That’s not the question before the jury.
“BY MR. DOYLE:
“Well, the old way of doing it is to blame it on the other guy. He blames it on Harry and Harry blames it on him, and hopefully, they can convince two juries of Jefferson County citizens that the other guy did it, and they both walk out of here laughing. Now, that’s what it’s about, and that’s what you’ve got, and that’s why you’ve got a severance in this case. That’s what you’re looking at.
“MR. JAMAIL: Your Honor, may I approach the Bench?
“(At this point the following proceedings took proceedings took place at the Bench, OUT OP THE HEARING of the jury, as follows, to-wit:)
“MR. JAMAIL: ‘Now comes the defendant Roger Cook, by and through his attorney Michael Jamail, and moves the Court to declare a mistrial in this matter based on the State’s counsel’s continued reference to a severance and to the fact that I represent the other person named Harry Cook, and that the same argument to defend Roger Cook will be used to defend Harry Cook. Furthermore, counsel has implied and inferred that Roger Cook could have taken the stand or that Harry Cook could have taken the stand and this is violation of the defendant’s Motion in Limine as granted and approved by the Court.’
“Respectfully submitted.
“THE COURT: Motion denied.
“MR. DOYLE: Thank you, Your Honor.”

Appellant had a legal right to file a motion for severance (see Art. 36.09, V.A. C.C.P.), which was recognized by the State when it agreed that the motion should be granted, and by the court when it granted the severance. As noted above, when, in his argument, the prosecutor first began to criticize defense counsel for requesting the severance, appellant’s objection was overruled. There is nothing in the record to justify or condone the State’s subsequent criticism of the filing of the motion to sever, or the prosecutor’s attempt to inflame the minds of the jurors against appellant and his attorney by designating it as “a classic example of trickery.” The court’s instruction that the jury “disregard the word ‘trickery’ ” did not remove the harm done, in view of the prosecutor’s continued remarks on the subject. See Anderson v. State, 525 S.W.2d 20 (Tex.Cr.App.); Lopez v. State, 500 S.W.2d 844 (Tex.Cr.App.); Bray v. State, 478 S.W.2d 89 (Tex.Cr.App.).

Neither the appellant nor Harry Cook testified before the jury. The prosecutor was wholly outside the record in giving his version of what the severance was about and in stating to the jury “and that’s why you’ve got a severance in this case.” The severance in this case was had because appellant filed his motion, the State agreed, and the court granted it. In view of the failure of appellant and Harry Cook to testify, there was no evidence to support the prosecutor’s prediction as to what Harry Cook’s defense would be or what counsel would say on the trial of Harry Cook. The State’s argument along the above stated lines was a clear effort to inflame the minds of the jurors against appellant and his counsel.

Neither was the State’s argument made in reply to that of defense counsel. The case was submitted to the jury on the law of circumstantial evidence. A review of the argument of defense attorney reflects that it was based on what counsel considered the lack of sufficient evidence to prove that appellant knowingly had the heroin in his care, custody, and control.

We quote as follows from our opinion in Anderson v. State, supra (p. 22):

“ . . . . The prosecutor’s statement that defense counsel was trying to pull the wool over the jurors’ eyes, that he will not argue the law, and that he will not argue the facts, but that ‘all he will do is get up here and lie to you,’ was of such a nature that when it was made, and in the context of the prosecutor’s argument which has been quoted, could have only been remedied by granting the request for mistrial. See Lopez v. State, 500 S.W.2d 844 (Tex.Cr.App.1973); Crutcher v. State, 481 S.W.2d 113 (Tex.Cr.App.1972); Bray v. State, 478 S.W.2d 89 (Tex.Cr.App.1972); Dykes v. State, 168 Tex.Cr.R. 215, 325 S.W.2d 135 (1959). Cf. Edmiston v. State, 520 S.W.2d 386 (Tex.Cr.App.1975). The prosecutor’s conduct denied the appellant a fair trial. See Ruth v. State, 522 S.W.2d 517 (Tex.Cr.App.1975); Boyde v. State, 513 S.W.2d 588 (Tex.Cr.App.1975); Renn v. State, 495 S.W.2d 922 (Tex.Cr.App.1973); Stein v. State, 492 S.W.2d 548 (Tex.Cr.App.1973).”

The argument quoted in the foregoing excerpt from Anderson was held to constitute reversible error even though the trial court had sustained defendant’s objection, and had instructed the jury to disregard.

Under the circumstances of this case, and the continued reference to the severance, we find inapplicable the doctrine of Vela v. State, 516 S.W.2d 176 (Tex.Cr.App.), and authorities there cited, which holds that without a timely and specific objection being made in addition to the motion for a mistrial, error is not preserved. Clanton v. State, 528 S.W.2d 250 (Tex.Cr.App.); Clayton v. State, 502 S.W.2d 755 (Tex.Cr.App.).

The instant case was submitted on the law of circumstantial evidence. The State, to establish knowing care, control and custody of the heroin, relied strongly on the evidence showing that appellant, although not the owner of the car, occupied the driver’s seat after leaving the 7-11 store, the bottle containing the heroin was in plain view in the open ashtray of the dashboard, and narcotic paraphernalia was found under the driver’s seat. Under the circumstances we do not conclude that the error in the State’s argument was harmless.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.


text:
    Donald Ray SHERMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 51699.
    Court of Criminal Appeals of Texas.
    June 9, 1976.
    Jerry W. Jones, Lawrence B. Mitchell, Dallas, for appellant.
    Henry Wade, Dist. Atty., Ronald D. Hinds, Les Eubanks and R. Gary Noble, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for burglary. Punishment was assessed by the jury at ten years.

The indictment alleged that the offense occurred on or about October 17, 1973, and the record reflects that trial was in June, 1975.

In his first two grounds of error, complaint is made by appellant of the court’s action in overruling his objections to portions of a penitentiary packet admitted into evidence at the punishment stage of the trial.

A penitentiary packet from the State of California reflecting that appellant had been convicted of “Burglary 2nd Degree” in 1970 was admitted into evidence. The pertinent portion of the certificate accompanying the packet reads:

“. . . I have in my custody the records pertaining to DONALD R. SHERMAN, and these records show that DONALD R. SHERMAN was received at the California Department of Corrections on 10-7-70, under Committment [sic] # 14180 from the Superior Court of Kern County for the offense of Burglary 2nd Degree, a violation of Section 459 of the California Penal Code, that his term as prescribed by law was 6 months to 15 years, that on 3-16-71, he appeared before the California Adult Authority at which time further parole consideration was postponed until the March 1972 Calendar, that on 3-26-71, he was transferred to the California Institution For Men, Chino, California, and that on 7 — 12-71, he was missing from the California Institution For Men, Chino, California.” [Emphasis supplied.]

Appellant’s initial contention is directed to the court’s action in overruling his objection to the admission into evidence of that portion of the certificate which reflects that “. . .on 7-12-71, he was missing from the California Institution For Men, Chino, California.”

Article 37.07, V.A.C.C.P., as it relates to the punishment hearing of the trial, provides:

“See. 3. Evidence of prior criminal record in all criminal cases after a finding of guilty.
“(a) Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to the prior criminal record of the defendant, his general reputation and his character. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged.”

In Mullins v. State, 492 S.W.2d 277, this Court held that Art. 37.07, supra, does not permit the State to show extraneous offenses not resulting in final convictions.

Appellant urges that the complained-of statement had the effect of informing the jury that appellant had committed the extraneous offense of escaping from prison. The State responds by arguing that the term “missing” is not synonymous with “escape” and that “escape” could only be considered as one of the many possible reasons for a person being “missing.” We note that the certificate gives no further explanation as to appellant’s ultimate whereabouts, stating only that “on 7-12-71, he was missing from the California Institution For Men, Chino, California.” While we agree that the two words are not synonymous, the fair import of the word “missing,” when used in the context before us, is that appellant had escaped from prison.

The State urges that appellant injected “escape” before the jury when appellant argued at the punishment stage of the trial that the report which showed appellant was missing from prison indicated that he had escaped, that the jury should assess a short term, and appellant could be turned over to the California authorities. In light of this argument, the State urges that if any prejudice existed by virtue of admission of the complained-of evidence, it was as the result of appellant’s trial tactic in his argument to the jury. The initial harm came when the complained-of portion of the certificate was admitted into evidence and appellant cannot be deprived of his right to complain of same because he ultimately attempted to overcome the prejudicial effect of same in his argument to the jury.

We are not persuaded by the State’s argument that the admission of the complained-of evidence was harmless error in light of the overwhelming evidence of appellant’s guilt. At this stage of the trial guilt had already been determined. One prior conviction (burglary in California) was shown. The punishment assessed by the jury was ten years, two years short of the maximum punishment provided by law for the offense. Under these circumstances, we cannot characterize the error in the admission of the complained-of evidence harmless.

Appellant also complains of the admission over his objection of the statement in the certificate that he appeared before the California adult authority on 3-6-71, at which time further parole consideration was postponed until “the March 1972 Calendar.”

Whatever action that might have been taken with regard to appellant’s parole, whether consideration of same was postponed or the parole denied, such evidence was not admissible under 37.07, V.A. C.C.P. In light of our disposition of the first ground of error, we need not determine whether the error in admission of same was so prejudicial to appellant as to require reversal. At the very least, it served to compound the harmfulness of the error previously discussed.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


text:
    Modesto Joe VINDEL, Appellant, v. The STATE of Texas, Appellee.
    No. 52100.
    Court of Criminal Appeals of Texas.
    June 9, 1976.
    Lawrence T. Newman, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Donald R. Stricklin, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Upon his plea of guilty to a jury, the appellant was convicted of the offense of aggravated robbery; punishment was assessed at ten years.

In his sole ground of error appellant alleges:

“The failure to remove Ms. Serena as interpreter and to appoint a new interpreter to translate the questions directed to the defendant and to translate the defendant’s answers to these questions was error.”

Appellant contends that the interpreter did not accurately and correctly interpret the testimony from Spanish to English and from English to Spanish.

The record fails to reflect any showing or claim of actual bias by the interpreter; any claim to any specific inaccuracy; nor does it reflect an objection to the interpreter during the trial. We find no reversible error in the record and overrule appellant’s ground of error.

The judgment is affirmed.


text:
    Ex parte Steven Jay CALDWELL.
    No. 52167.
    Court of Criminal Appeals of Texas.
    June 9, 1976.
    Barry P. Helft, Dallas, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

This is a post-conviction application for the writ of habeas corpus under the provisions of Article 11.07, V.A.C.C.P., in which petitioner seeks his release from confinement in the Texas Department of Corrections.

In a single trial before a jury in the Criminal District Court No. 4 of Dallas County, petitioner was convicted in two cases of rape (our No. 49,112) and robbery by firearms (our No. 49,113). Punishment for rape was assessed at fifteen hundred years, and for robbery, one thousand years. On appeal, both judgments were affirmed with per curiam opinions.

In his application, petitioner makes a number of attacks on the validity of his convictions, all of which are without merit. The case was submitted on the limited constitutional issue, not raised in the application, of whether the petitioner has been placed in double jeopardy by being convicted of rape and robbery by firearms growing out of the same transaction upon the same victim. A violation of the doctrine of “carving” or double jeopardy is a matter of constitutional dimensions of which this Court will take notice in a post-conviction habeas corpus proceeding where it is apparent in the record. See Ex parte Evans, 530 S.W.2d 589 (Tex.Cr.App.); Ex parte Calderon, 508 S.W.2d 360 (Tex.Cr.App.); Ex parte Scelles, 511 S.W.2d 300 (Tex.Cr.App.); Ex parte Jewel, 535 S.W.2d 362 (Tex.Cr.App., 1976).

The transcription of the court reporter’s notes of the evidence introduced on the joint trial of the two cases is included as the statement of facts in the record of the appeals in our Causes Nos. 49,112 and 49,-113, and we take judicial notice of such statement of facts. It reflects that the complainant-prosecutrix was the only witness who testified before the jury at the guilt stage of the trial. Her testimony reflects that at about 2:00 a. m., February 13, 1973, after she finished her duties as relief manager of a Burger King store and was leaving to get in her car, appellant and another man, armed with guns, forced her to re-enter the building. They demanded that she open the safe and give them the money in it. She insisted that she did not know the combination and couldn’t open it. After many threats directed at her, she was permitted to phone her employer, from whom she secured the combination (or perhaps a purported combination). After many attempts to open the safe, all of which failed, the other man told appellant to take her to a back room and tie her up, while he continued to try to open the safe. Appellant then took her to a back room, where he raped her and tied her up. After the rape, both men left, and she learned that the money in her purse, which had been taken from her, was missing. The safe was not opened.

The complainant-prosecutrix was named as the victim in both cases.

Where the record shows that more than one offense is committed against the same complainant in a single transaction occurring at the same time and place, the State may carve only one of these offenses to prosecute, and separate convictions for each offense under such circumstances would constitute a violation of the double jeopardy clauses of both state and federal constitutions. Tatum v. State, 534 S.W.2d 678 (Tex.Cr.App.); Ex parte Scelles, 511 S.W.2d 300 (Tex.Cr.App.); Ex parte Calderon, 508 S.W.2d 360 (Tex.Cr.App.); Ellis v. State, 502 S.W.2d 146 (Tex.Cr.App.); Price v. State, 475 S.W.2d 742 (Tex.Cr.App.); Duckett v. State, 454 S.W.2d 755 (Tex.Cr.App.).

However, the evidence on the trial of the instant cases summarized above reflects that the robbery and the rape did not occur in a single transaction, or in the same place or at the same time. The record reflects two separate assaults by appellant upon the complainant. The first occurred when appellant, as a principal with his companion, assaulted her outside the building, forced her to enter the store, and by using firearms and threats, robbed her. When appellant took her into another room of the building and raped her, this constituted an additional assault occurring in a different place at a different time, and was a separate transaction, and a separate offense. No violation of the doctrine of carving or double jeopardy is presented. Lamberson v. State, 509 S.W.2d 328 (Tex.Cr.App.); Douthit v. State, 482 S.W.2d 155 (Tex.Cr.App.); Frazier v. State, 480 S.W.2d 375 (Tex.Cr.App.); Robinson v. State, 530 S.W.2d 592 (Tex.Cr.App.); Lee v. State, 505 S.W.2d 816 (Tex.Cr.App.).

The relief prayed for is denied.

Opinion approved by the Court.


author: ONION, Presiding Judge.

text:
    Bennett Ray ABLON, Appellant, v. The STATE of Texas, Appellee.
    No. 52171.
    Court of Criminal Appeals of Texas.
    June 9, 1976.

      James P. Finstrom (court appointed), Dallas, for appellant.
    Henry Wade, Dist. Atty., Gary Love and Phil Dixon, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation. Appellant pled guilty before the court on October 22, 1974, to the offense of possession of a controlled substance, to-wit: lysergic acid diethylamide, and punishment was assessed at three (3) years’ confinement. The imposition of the sentence was suspended, and appellant was placed on probation subject to certain conditions of probation. Among the conditions of probation appellant was to:

“(a) Commit no offense against the laws of this or any other state or the United States.”

A motion to revoke probation was filed on April 15, 1975, and amended motions to revoke were filed on July 23 and August 6, 1975. On September 3, 1975, another amended motion was filed. It alleged in part that on July 13,1975, in Dallas County the appellant “did intentionally, knowingly and unlawfully possess a dangerous drug, to wit: Diazedam.”

At the conclusion of the hearing on such motion on September 3, 1975, the court revoked probation for violation of probationary condition (a) in that he possessed “diazepam.”

Initially appellant complains that the court erred in admitting into evidence the pills or drugs found on his person at the time of his warrantless arrest and search incident thereto.

Dallas City Police Officer S. B. Christian testified he was on patrol at 10:45 a. m. on July 13, 1975, when he received a police radio call that a suspicious person wearing a cowboy hat and boots, blue jeans and a green tank top shirt was in a fenced backyard at 4317 Shady Bend, where no one was home. The area described was a high burglary area.

When Christian drove down Shady Bend a short time later, he saw the appellant at the east side of the house at 4335 Shady Bend wearing the exact clothes given in the radio call. The house at 4335 Shady Bend was two houses away from 4317 Shady Bend. Christian drove into the driveway at 4335 Shady Bend and approached the appellant. When the appellant told Christian he did not live there, Christian asked for identification, which showed he lived several miles away. Christian then asked the appellant to step to the squad car and patted him down for a weapons search and noted a bulge in his pants pocket. The appellant took the bottle out and the officer took it. It was unlabeled and contained ten pills. The chain of custody was traced, and the chemist testified that after certain tests it was concluded the pills were diazepam, whose trade name is valium.

On cross-examination Christian testified that appellant was with a girl at 4335 Shady Bend who had told him that she lived there and the appellant had her permission to be there.

Cheryl Sayles testified that appellant was her boyfriend and was at the house with her permission when Officer Christian arrested him. She saw the bottle being taken from the appellant, and when shown the exhibit identified the pills as valium.

Appellant’s mother testified that the pills in question were hers.

Testifying in his own behalf, appellant stated he had been in the yard at 4317 Shady Bend when a man approached, asked his name and inquired what he was doing there. He stated that he then returned to his girlfriend’s house. He admitted upon the court’s questioning that he had the bottle with the pills in his pocket and that he had gotten the pills from his mother.

Circumstances falling short of probable cause for an arrest may justify temporary detention for purposes of investigation since an investigation is considered to be a lesser intrusion upon the personal security of an individual than is an arrest. See Mann v. State, 525 S.W.2d 174 (Tex.Cr.App.1975); Hernandez v. State, 523 S.W.2d 410 (Tex.Cr.App.1975); Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975); Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974); Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

After receiving the call over the police radio, Officer Christian found the appellant wearing the exact clothing described only two houses from the location given in the call. It was in a high burglary area at the time most burglaries in that area occurred. Appellant’s identification showed he lived several miles away. He was asked to step to the squad car and, for the officer’s own safety, a pat down for weapons was made by the officer, who felt a hard object. The bulge in the pants pocket was obvious. The appellant removed the bottle from his pocket and the officer took the same from him.

In Terry v. Ohio, supra, the Court wrote:

“The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” See also Cox v. State, 442 S.W.2d 696 (Tex.Cr.App.1969).

We deem the frisk by the officer to have been proper under the circumstances. The evidence was properly admitted.

We also observe in passing that the revocation motion also alleged that appellant failed to work faithfully at suitable employment as far as possible. We observe at the conclusion of the hearing the court orally announced it was revoking probation for possession of dangerous drugs, but the written order revoking probation entered the same day also showed revocation was based upon failure to work faithfully at suitable employment as far as possible. The evidence would support such finding, and as we noted in Balli v. State, 530 S.W.2d 123 (Tex.Cr.App.1975), the written order controls over the oral announcement, and this is particularly true where the written order is included in the appellate record to which no objection has been addressed.

Next, appellant complains there was a material variance between the allegations in the amended motion to revoke probation filed on September 3,1975, and the proof in that the motion alleged he possessed “diaze-dam” and the proof showed he possessed “diazepam.” The chemist testified that the correct spelling of the name of the drug was “diazepam.”

It is a rule that the misspelling of a word does not render invalid an otherwise good indictment or information if the sense is not affected and the meaning cannot be mistaken. Gauthia v. State, 171 Tex.Cr.R. 522, 352 S.W.2d 129 (1961); Weeaks v. State, 163 Tex.Cr.R. 226, 289 S.W.2d 758 (1956). In Lute v. State, 166 Tex.Cr.R. 357, 314 S.W.2d 98 (1958), it was held that the spelling of the narcotic drug as “herion” instead of “heroin” did not vitiate the indictment. See also Florence v. State, 160 Tex.Cr.R. 591, 273 S.W.2d 631 (1954); Murphey v. State, 109 Tex.Cr.R. 524, 5 S.W.2d 988 (1928).

Further, we note that the allegations of a revocation motion need not meet the requirements of an indictment, and it is enough that such pleadings give the probationer fair notice of the allegations against him so that he may prepare a defense. See Figgins v. State, 528 S.W.2d 261 (Tex.Cr.App.1975); Antwine v. State, 518 S.W.2d 830 (Tex.Cr.App.1975); Fowler v. State, 509 S.W.2d 871 (Tex.Cr.App.1974).

There was no motion to quash the revocation motion. We do not think the spelling of the drug affected the meaning of the revocation motion or that the appellant was misled thereby.

Appellant’s contention is overruled.

Lastly, appellant contends the evidence is insufficient to show that diazepam is a dangerous drug as classified by the Texas Controlled Substances Act (Article 4476-15, Vernon’s Ann.C.S.). The chemist testified diazepam, whose trade name was valium, was a tranquilizer, and stated the same was a dangerous drug. Article 4476-15, Sec. 2.17(1), Vernon’s Ann.C.S., provides that tranquilizers are dangerous drugs regulated by the Act. We conclude the evidence was sufficient to show the appellant was in possession of a dangerous drug.

Appellant’s contention is overruled.

The judgment is affirmed.


author: PHILLIPS, Chief Justice.

text:
    BROWNSTONE PARK LTD., Appellant, v. SOUTHERN UNION GAS COMPANY, Appellee.
    No. 12374.
    Court of Civil Appeals of Texas, Austin.
    March 10, 1976.
    Rehearing Denied May 19, 1976.

      William T. Hall, Stayton, Maloney, Hearne & Babb, Austin, for appellant.
    Guy C. Fisher, Barry K. Bishop, Clark, Thomas, Winters & Shapiro, Austin, for ap-pellee.
   PHILLIPS, Chief Justice.

Appellant, the plaintiff below, brought this action for $11,927.80 in damages for the destruction of a gas-fired steam boiler located at its apartment complex in Austin.

Appellant alleged that appellee Southern Union Gas Company entered into a written service contract with appellant by which appellee contracted to service and maintain the air conditioning and heating plant and system at the apartment complex. On October 27, 1972, the gas-fired steam boiler located in the boiler room at the apartment complex was destroyed.

Appellant alleged that the destruction of the boiler was proximately caused by several negligent acts and omissions of appellee’s employees. Appellant also pleaded that the boiler was under the management and control of appellee and that the destruction of the boiler would not have occurred but for the negligence of appellee.

Appellee pleaded that the destruction of the boiler was the result of several negligent acts on the part of appellant. Appel-lee also alleged negligence on the part of Hartford Steam Boiler Inspection and Insurance Company, who appellee joined as a third party defendant. Hartford’s defenses are not material to this opinion.

As is permitted, the district court submitted the negligence of the parties generally. The jury found that appellee was negligent and that its negligence was a proximate cause of the destruction of the boiler, that appellant was contributorily negligent and that its negligence was a proximate cause of the destruction of the boiler, and that appellant’s damages totaled $5,755.92. Hartford was found not negligent.

Based on the jury findings, the court entered judgment that appellant take nothing by its suit. We will reverse the judgment of the trial court and remand the cause for a new trial.

Appellant presents points of error contending that there was no evidence or insufficient evidence to support the jury findings of appellant’s negligence and proximate cause.

This case is before us on a lengthy statement of facts. Both appellant and appellee pleaded a variety of theories of negligence they claim resulted in destruction of the boiler. The evidence in support of these theories is circumstantial. The jury’s answers were in response to general submissions of negligence and proximate cause.

In a tort case a party seeking to establish liability bears the burden of producing evidence of both negligence and proximate cause. A finding of proximate cause cannot be sustained unless there is proof of both cause in fact and foreseeability. Enloe v. Barfield, 422 S.W.2d 905 (Tex.1967).

Without special issue findings of particular acts of negligence and proximate cause, we must apply appellant’s no evidence and insufficient evidence points of error to each act of negligence pleaded by appellee. In considering “no evidence” points, we will view the evidence in its most favorable light in support of the findings of fact, considering only the evidence and the inferences which support the findings and rejecting the evidence and the inferences which are contrary to the findings. In considering the “insufficient evidence” points of error, we will review all the evidence. Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Tex.L.Rev. 361, 363 (1960).

Appellee pleaded that appellant’s failure to replace the feed water pump was negligence. However, we find no evidence that the pump did not function properly between October 23 and October 27. To conclude that there is evidence of a malfunction, we would have to first infer that the feed water pump failed and from this inference proceed to another inference that the failure caused the damage to the boiler. Thus we would be piling inference upon inference which is unacceptable. Briones v. Levine’s Department Store, Inc., 446 S.W.2d 7, 10 (Tex.1969), 23 Tex.Jur.2d Evidence § 69 (1961). Consequently, there is no evidence to support a finding that this omission, if negligence, was a proximate cause of the boiler loss.

Appellee pleaded further that appellant failed to keep the door to the boiler room locked at all times to prevent unauthorized tampering with the equipment. Appellee adduced testimony that on isolated occasions prior to October 23, its servicemen had found the door to the boiler room unlocked, and that on other occasions they had seen tools stored in the boiler room. However, no evidence was introduced that the door was unlocked or that anyone entered the boiler room between the time appellee’s serviceman left on October 23, and the time the boiler was found burned on October 27.

Appellee did not plead that the allowance of an accumulation of scale deposits was negligence. Therefore, this could not have been a basis for the jury’s answer to the special issue.

Finally, appellee pleaded that appellant utilized a boiler designed with a valve gate beneath the low water cut-off device, and that such design was negligent, and that this negligence was a proximate cause of the boiler fire.

Testimony adduced by appellee at trial did establish that the design of the boiler could have been made safer by eliminating the valve beneath the low water cut-off device, thereby eliminating the possibility that someone might negligently leave the valve in a closed position. Boiler inspectors Hildman, Pharr, and Parker all testified that they would not recommend the design, but that the design was not unsafe or a high risk if operated with reasonable care by trained personnel.

It is undisputed that appellant executed a written contract with appellee under which appellee was to Rave sole responsibility for servicing and maintaining the boiler, and that appellee furnished trained, experienced servicemen for this purpose. The testimony fails to support the conclusion that the boiler, designed as it was, could not be safely operated, nor does the record contain any evidence that appellant should have foreseen any possible negligence of the skilled servicemen supplied by appellee. We hold that under the facts of this case, the evidence is factually insufficient to support a finding that appellant’s possession of a boiler with the valve design in question was negligent.

Appellee brings cross-points complaining, on the basis of no evidence and insufficient evidence, of jury findings of negligence and proximate cause against it, and complaining that the jury finding of no negligence on the part of Hartford Steam Boiler Insurance Company was contrary to the great weight and preponderance of the evidence. We find no prejudgment motion or motion for new trial by appellee in the record; consequently, in the absence of any complaint to the trial court by appellee concerning the jury findings or the judgment, we will not consider appellee’s cross-points. West Texas Utilities Company v. Irvin, 161 Tex. 5, 336 S.W.2d 609 (1960); Texas Oil and Gas Corporation v. Vela, 429 S.W.2d 866 (Tex.1968); Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960); White Stores, Inc. v. Crain, 515 S.W.2d 677 (Tex.Civ.App. 1974, no writ); Appealing Jury Findings, 12 Hous.L.Rev. 82-86 (1974); Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Tex.L.Rev. 361, 362, 365 (1960).

The judgment is reversed and the cause is remanded for a new trial.

Because this cause will be remanded for a new trial, we do not reach appellant’s point of error five, concerning the amount of damages found by the jury.

ON MOTION FOR REHEARING

On Motion for Rehearing appellee correctly contends that this Court erred in not considering its cross-points because appellee did not file a motion for new trial or complain of the jury findings or judgment in the trial court.

Rule 324, Texas Rules of Civil Procedure, requires such complaint only when a party objects to the judgment. Since the judgment was favorable to appellee, it had no reason to object. See O’Connor, Appealing Jury Findings, 12 Hous.L.Rev. 65, 83-84 (1974).

Appellee’s first cross-point is that there was either no evidence or insufficient evidence to support the jury’s finding of negligence against it. We overrule this point and hold that there was sufficient evidence that appellee’s service man left the valve beneath the low water fuel cut-off closed. There is no evidence that anyone other than appellee’s service man was in the boiler room during the time interval in question. The evidence is uncontradicted that he manipulated the value in question several times on that occasion, and the jury could well have resolved the fact issue of whether he left the valve open or closed against the appellee. In the alternative, the jury could have found appellee negligent in failing to maintain the boiler alarm system as was required by its service contract with Brownstone Park. Appellee’s employee testified that had an adequate alarm been installed and left in operation, a service crew from Southern Union could have responded in time to prevent the destruction of the boiler by overheating.

Appellee’s second cross-point complains that the jury finding exonerating Hartford Insurance Company was contrary to the great weight and preponderance of the evidence. We also overrule this point as we are at a loss to understand what duty Hartford owed to Southern Union Gas Company, or even to Brownstone Park. Its voluntary inspection of the boiler was for the purpose of determining its insurability and, as such, was for the benefit of Hartford only. Although the Hartford inspector was commissioned by the State and filed a report to the State Boiler Commission, he had no authority as an agent of Hartford to compel Brownstone to comply with any particular standard. Any authority he had was as an agent for the State and any duty he owed was to the State, not to Southern Union Gas.

Finally, appellee contends that the take nothing judgment against Brownstone should be affirmed because Brownstone was guilty of negligence per se in owning a boiler not in compliance with the requirements of the State Boiler Code.

The rule of negligence per se is found in Southern Pacific Co. v. Castro, 493 S.W.2d 491 (Tex.1973), which approves of the definition set out in Restatement (Second) of Torts § 288(B) (1965). The unexcused violation of a legislative enactment or an administrative regulation which is adopted by the court as defining the standard of conduct of a reasonable man is negligence in itself. Thus for one to prove negligence per se, he must prove (1) a violation of the penal standard, and (2) a violation which is unexcused.

However, it is also clear that whether the violation of a criminal statute may also be the basis of civil liability in a given case in the absence of an express provision therefor, depends upon whether the plaintiff is within the class for whose protection the statute was passed, and the injury is of the nature the statute was intended to prevent. Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587 (1947); Texas & Pacific Ry. Co. v. Baker, 215 S.W. 556 (Tex.Comm’n App. 1919, jdgmt. adopted), 40 Tex.Jur.2d Negligence § 11-15 (1962), Restatement (Second) of Torts § 286 (1965).

The purpose of the Texas Boiler Law Rules and Regulations is a matter of statutory interpretation. We must consider the harm the statute was intended to prevent and the interests it sought to protect. We regard as the purpose of the Code the protection of the lives and property of the inhabitants of the building containing a boiler, or of those persons lawfully within the building. We doubt that the legislature or the Boiler Commissioner promulgated the regulation cited by appellee for the purpose of absolving from liability those who contract to service boilers, and who, through their own negligence, damage them. Consequently, we cannot hold that, as a matter of law, the trial court erred in not holding appellant Brownstone Park negligent per se.

We grant that part of the motion which concerns the consideration of appellee’s cross-points. In all other things, the motion for rehearing is overruled.


author: OSBORN, Justice.

text:
    H. C. (Dick) THOMAS, and J. H. (John) Thomas, Individually and as co-partners d/b/a Thomas and Thomas, Appellants, v. G. Dale MORRISON, Appellee.
    No. 6488.
    Court of Civil Appeals of Texas, El Paso.
    March 17, 1976.
    On Rehearing April 28, 1976.
    Rehearing Denied April 28, 1976.
    Second Rehearing Denied June 2, 1976.

      John L. Shepherd, Seminole, Prappas, Caldwell & Moncure, B. Edward Williamson, Houston, for appellants.
    Garner, Vickers, Purdom & Nelson, Robert E. Garner, John E. Vickers, Lubbock, Gibson, Ochsner, Adkins, Harlan & Han-kins, Beau Boulter, Amarillo, for appellee.
   OPINION

OSBORN, Justice.

The Appellants complain of a judgment entered against them for damages resulting from a breach of a lease of one section of land in Gaines County for the purpose of raising alfalfa and grazing cattle. Having concluded that the judgment was not based upon a proper measure of damages, we reverse and remand for a new trial.

In 1972, Appellee acquired a section of land about five miles southwest of Seminole, on which was located two water wells and pumps, and a 26 tower irrigation system. Mr. Morrison bought the land for approximately $150.00 an acre which consisted of payment in cash of $2,200.00, a $1,000.00 note and assumption of a loan to John Hancock Insurance Company for $81,-000.00, plus payment of $15,000.00 to make the loan current. After an unsuccessful attempt to sell the property, he entered into negotiations with John Thomas for a lease for grazing purposes. There was a substantial controversy over what were the terms of the lease as finally agreed upon between the parties. On June 8, 1972, Mr. Thomas sent Mr. Morrison a proposed lease for the period of June 1972 through December 1972 for the sum of $10.00 and other valuable consideration. Under the terms of the lease, Thomas & Thomas (a partnership composed of J. H. Thomas and H. C. Thomas) agreed to “perform whatever tilling operations that are directed” by Morrison for one-half (⅛) of the prevailing custom rate. On June 14, 1972, Morrison returned the lease unsigned and noted that it did not mention the cotton allotment which they had discussed and raised a question as to whether there was to be a grass or alfalfa crop. On June 17, 1972, Thomas made changes in the lease and sent to Morrison a draft of two leases, one covering a period from June 1972 through December 1972, and providing for a Vioth acre of permanent cotton allotment to be left on the land after the lease expired and with the same clause on tilling operations. The other lease provided for a term from June 1972 through December 1972, and provided that:

“Lessee agrees to plant the above Section to alfalfa and will provide the necessary pumps, motors, and related irrigation equipment and fences to care for same, and Lessee will provide the necessary cattle to keep the alfalfa in a fully grazing condition. Lessee will provide the overseer and care for its own cattle. Lessor will have no responsibility for cattle count or health. Lessee will pay Lessor 12<t per pound on gain for all gain.”

Morrison approved and returned the proposed leases on June 20, 1972, the leases were executed effective June 22,1972, after the period of the second agreement was corrected by Thomas to provide for a term from October 1, 1972 through September 30, 1977.

According to Mr. Thomas, he prepared the leases and had his secretary type them. In September, 1972, he discovered what he considered to be an error or mistake in the long-term lease. He said it provided for “lessee” to plant the alfalfa, etc., when in fact it was the original agreement of the parties that “lessor” had such responsibility. Morrison denied that there was any error or mistake in the lease. Being unable to resolve the issue, Mr. Thomas wrote Mr. Morrison on June 8, 1973, stating that if the typographical error could not be corrected, he would be willing to (1) cancel the lease, (2) furnish the capital for irrigating at a reduced grazing fee, or (3) negotiate some other type arrangement. He concluded his letter by stating: “Without definitive action on your part, we shall take the position that the lease be cancelled in its entirety upon removal of the cattle that are presently there.” Mr. Morrison’s lawyer promptly replied that his client was unwilling to renegotiate for a new lease. Demand was made for payment due under the contract for gain on cattle already grazed, plus damages for failure to plant alfalfa. The matter being unresolved, this suit was filed the following month.

The section of land involved in this suit was foreclosed under the John Hancock Deed of Trust on April 2, 1974, and this case was tried in March, 1975.

The jury failed to find that the long-term lease contained a mutual mistake. They also failed to find that “Morrison expressly directed Thomas & Thomas to have the tilling and planting operations performed.” The last Special Issue, No. 3, and its answer was as follows:

“What sum of money do you find from the preponderance of the evidence Morrison would have received as rent from Thomas and Thomas during the term of the lease in question had the section been planted to alfalfa and fully grazed?
Answer in dollars and cents, if any, as you may find.
Answer: iS162.750.00”

Judgment was entered for that amount, plus the amount Thomas acknowledged as due for grazing, plus the amount stipulated as to the increase in the value of land had it been planted in alfalfa.

The Appellants present seven Points of Error, most of which are related to Special Issue No. 3 and the judgment based upon the answer to that Issue. At the trial, Appellants objected to Special Issue No. 3 “for the reason that this issue does not properly outline the damages under the lease in question”, and “for the further reason that said issue and the wording contained therein is not the proper measure of damages in this cause.” The first Point of Error complains of the error in overruling those objections.

While the Point of Error probably presents error, the objection upon which it is based is not sufficient to have preserved the error. Rule 274, Tex.R.Civ.P., requires that a party point out distinctively the matter to which he objects and the grounds of his objection. In Whitson Company v. Bluff Creek Oil Company, 156 Tex. 139, 293 S.W.2d 488 (1956), the Court considered a similar objection and concluded that the objection was not adequate. The Court said:

“ * * * The only objection made by it to the special issue submitting market value other than that Rucker had parted with his interest, which objection is not briefed, was this: ‘Because said issue does not inquire as to the proper measure of damages.’ The general objection cannot be considered. If the market value as submitted was not the correct measure of damages, objection should have been made to the issue by Whitson Company pointing out distinctively the grounds of its objections. Rule 274, Texas Rules of Civil Procedure. Having failed to do so, it cannot thereafter be heard to say that the measure of damages as submitted was improper. * * * ”

That conclusion was followed and the same results reached in Cantile v. Vanity Fair Properties, 505 S.W.2d 654 (Tex.Civ.App.—San Antonio 1973, writ ref’d n. r. e.). The first Point of Error is overruled.

The second Point of Error also complains of overruling an objection to Special Issue No. 3 because it inquired as to rent to be received during the entire term of the lease even though the parties had stipulated as to the amount due for a part of the lease. The evidence established that' alfalfa would normally be planted in August or September and that it should not be grazed until it had a year’s growth. Mr. Thomas contended that since the long-term lease did not commence until October, 1972, alfalfa could not be planted until August or September 1973, but that in order to get some income prior to grazing in 1974, it was decided to plant and graze wheat in 1972-73. The evidence established without dispute that during the first year Thomas & Thomas did plant a wheat crop, and did graze cattle on the wheat, and it was stipulated that this resulted in an indebtedness to Morrison of $5,804.40 as rent during that period of time, although there was a dispute as to whether Morrison authorized or directed that wheat be planted the first year.

Since Special Issue No. 3 inquired as to the rent Morrison would have received for the full term of the lease, and since the parties stipulated as to recovery of $5,804.40 from grazing on the wheat during the first part of the lease, Appellants suggest that Appellee recovered double damages. They urge that their objection to the special issue should have been sustained. International-Great Northern R. Co. v. King, 41 S.W.2d 234 (Tex.Comm’n App. 1931, holding approved). Mr. Morrison testified that it was his understanding that the land was to be planted in alfalfa in 1972, and that the two leases were tied to each other so as to provide grazing income at the earliest possible time, probably in 1973. Under that construction of the two leases, the Appellant could have received double damages had the jury believed that alfalfa should have been planted in 1972 and grazed in 1973, the same year in which the wheat was grazed and for which Appellants admitted a liability of $5,804.40. We sustain the second Point of Error. Were this the only point to be sustained we would order a remittitur, but the next Point presents error which cannot be cured by a remittitur.

By the third Point of Error, Appellants contend that the answer to Special Issue No. 3 could not form the basis upon which the trial Court could render judgment against them. We agree. In White v. Watkins, 385 S.W.2d 267 (Tex.Civ.App.—Waco 1964, no writ) the Court stated the rule for determining damages where a tenant breaches his lease and abandons the premises. The Court said:

“Where the tenant abandons the premises, the lessor, as one remedy, may accept the breach by the tenant, retake possession and sue for his damages. Marathon Oil Co. v. Rone (Tex.Civ.App.1935), 83 S.W.2d 1028, 1031, writ ref. If he elects this remedy and has relet the premises for the entire unexpired term, the measure of lessor’s damage is generally the difference between the rental originally contracted for and that realized from the reletting.
“ * * * But he may elect, instead, to sue for damages for the anticipatory breach without reletting, and without exercising any diligence to do so. In the latter ease the measure of damages is the difference between the present value of the rentals contracted for in the lease and the reasonable cash market value of the lease for its unexpired term. John Church Co. v. Martinez (Tex.Civ.App.1918), 204 S.W. 486, 489, writ ref.; San Antonio Brewing Ass’n v. Brents (1905), 39 Tex.Civ.App. 443, 88 S.W. 368, 370, writ ref.; Massie v. State Nat. Bank (1895), 11 Tex.Civ.App. 280, 32 S.W. 797, 798; 32 Am.Jur., Landlord & Tenant, Sec. 161, p. 157; 137 A.L.R. 439; Annotation, 85 L.Ed. 352. See Employment Advisors, Inc. v. Sparks, Tex., 368 S.W.2d 199; Robinson Seed & Plant Co. v. Hexter & Kramer (Tex.Civ.App.1914), 167 S.W. 749, 751.”

The same rule is applied in Evons v. Winkler, 388 S.W.2d 265 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n. r. e.) where the Court said:

“Although the testimony, as summarized above, is incomplete as to whether or not Lawless and Kirk had abandoned the premises by June, 1959, we feel that it is sufficient to sustain an implied finding by the trial court that such was the case. In such event, * * * the landlord would have had the right to relet the property and, not having agreed to surrender his rights under the lease contract, recover from the former lessee or assign-ee the amount of the agreed rent for the entire contractual period of the lease less the sum that he may realize from the re-letting, after the use of reasonable diligence to obtain a tenant. * * * ”

Where a party fails to establish an essential element of the proper measure of damages, the case must be reversed and remanded for a new trial. Cantile v. Vanity Fair Properties, supra. In our case there is no finding of the “present cash value” of the rent contracted for in the lease, but only the amount of rents to be received. There was no finding at all as to the reasonable cash market value of the lease for its unexpired term. Both findings were essential elements of the Appellee’s damages in this case. We sustain the Appellants’ third Point of Error.

In connection with the measure of damages, we note the rule of law which provides: “A tenancy may also terminate by the ending of the reversionary interest as where a mortgage executed prior to the lease is foreclosed on- the property.” Thompson on Real Property, Vol. 3A § 1318 p. 538. As noted above, the property under lease was foreclosed on April, 1974. This could have terminated any lease made after the Deed of Trust and which would as a matter of law be subject to the rights of the mortgagor. 36 Tex.Jur.2d, Landlord and Tenant, § 262. Certainly, it would have terminated the lessor’s rights under the lease. Thus, on retrial it would appear that lessor’s damages would be limited to a period of time up to the foreclosure if proper pleadings and proof are made as to the foreclosure and the lessor’s rights being subject to the rights of the mortgagor.

The other Points have been considered, but need not be passed on since any error involved will not likely reoccur upon another trial. The judgment of the trial Court is reversed and the cause is remanded for a new trial.

ON MOTION FOR REHEARING

Appellee’s Motion for Rehearing raises for the first time the question of failure to properly assign error in the trial Court as to a point of error which has been sustained on appeal. Some discussion is essential because the answer to the issue is neither simple nor easy.

First, Appellants’ brief presents as the third point of error the following:

“The Trial Court erred in entering judgment for Appellee based upon the jury verdict for the reason that, as a matter of law, the response of the jury to Special Issue No. 3 could not form the basis upon which the Court could render a proper judgment.”

That point and the following point, which raised a question as to the sufficiency of the evidence to support the answer to Special Issue No. 3, were argued together. None of Appellants’ points of error were shown to be germane to assignments of error in the trial Court as required by Rule 418(b), Tex. R.Civ.P.

Appellee, by its first reply point, urged that “Appellants’ objections to the damage issue, Special Issue No. 3, are too general to comply with Rule 274, and cannot be considered on appeal.” While the reply point was stated to be in reply to Appellants’ points of error one and three, it did not actually reply to point three which was related to the jury verdict as a basis for judgment, rather than objections to the charge, as was raised by point of error number one. We did sustain the first reply point insofar as it related to point of error number one because the objections to the Court’s charge were too general to be considered.

Appellee’s reply points two and three were also in reply to Appellants’ point of error number three. Those reply points were on the merits of the issue raised by the third point of error.

Having lost on each of the propositions set forth in reply to Appellants’ third point of error, Appellee now seeks a second bite at the apple and for the first time, on motion for rehearing, urges that there is no assignment of error in the trial Court to raise the third point of error. He relies primarily on Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960). The Appellant has filed no reply to the motion for rehearing. We are well aware of the need for proper assignment in order to preserve error for appeal. See W. T. Grant Company v. Key, 433 S.W.2d 163 (Tex.1968).

The final question is when must the issue be raised. In the Wagner case, the points sustained by the Court of Civil Appeals were alleged to present fundamental error and thus there was no need for a proper assignment in the trial Court. The Supreme Court concluded that the error was not fundamental and, not having been properly assigned, the points could not be considered. In the W. T. Grant Company case, Appellee’s counterpoint one in the Court of Civil Appeals was that there was no proper assignment of error in the trial Court as to the issues raised by Appellant’s points of error one and two. The argument in that counterpoint placed reliance upon Wagner v. Foster, supra; Oilfield Haulers Ass’n. v. Railroad Commission, 381 S.W.2d 183 (Tex.1964); and Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). Thus, the issue of lack of assignment of error in the trial Court was before the Court of Civil Appeals and was properly preserved for determination in the application for writ of error.

In the present case, Appellee chose to do battle on the merits of the issue presented in the third point of error and lost. Now he claims for the first time that there should have been no battle because the issue was not properly raised in the trial Court. May one wait until after an issue has been decided adversely on the merits and then complain for the first time on motion for rehearing about a failure to properly assign the error? There are many cases holding that a new issue may not be raised for the first time on appeal. 4 Tex.Dig., Appeal and Error, Key No. 835(2).

In Southern Gas & Gasoline Engine Co. v. Adams & Peters, 169 S.W. 1143 (Tex.Civ.App.-San Antonio 1914, writ ref’d), the Court, on motion for rehearing, said:

“Appellees urge, in their motion for a rehearing, that this court erred in sustaining appellant’s assignments of error numbered 6, 7, 8, 10, and 11 for the reason that said assignments complained of the errors of the trial court in either giving charges or refusing charges to the jury, and that there are no bills of exception in the record to the action of the court complained of in the assignments, and therefore this court had no power to consider and determine such assignments.
“Both parties to this appeal filed lengthy and able briefs, but appellees nowhere in their brief made any objection to the consideration of these assignments. Nor was our attention ever called to the fact that no bills of exception were reserved to the action of the court in such matter until the motion for a rehearing was filed. Under rule 40 this court is authorized to rely upon the briefs for a proper presentation of the case on appeal, without an examination of the record; and to assume that if there were any objections to the assignments or to the matters upon which the same were predicated, the other party would call our attention to it. Rule 41 (142 S.W. xiv), expressly provides that:
‘Whatever of the statements of appellant or plaintiff in error in his brief is not contested will be considered as acquiesced in.’
“We did not go into the lengthy transcript to see if there were preserved bills of exception, but assumed that, if counsel for appellees had any objection to the consideration of said assignments, the same would have been made known to us. Appellant insists that objections or exceptions were preserved and are shown in the record; but that is aside from the question. To tolerate a practice of this kind would virtually require a resubmission of the case. Certainly another consideration along a line not heretofore presented to us. It would be equivalent to giving a party two opportunities to brief the case. No matter what disposition this court would have made of these assignments, had timely objection been made, when able counsel present to us a brief upon all of them, in which they are presumed to urge every point favorable to them and do not raise the question, now for the first time urged, until a motion for rehearing, this court will consider that any other objection not contained in the brief was waived, unless it be some matter of fundamental law. And this is not a question of fundamental law, being purely one of procedure.”

The following year, the court in Taylor v. First State Bank of Hawley, 178 S.W. 35 (Tex.Civ.App.-Fort Worth 1915, no writ), overruling a motion for rehearing wrote:

“Appellee also insists that we erred in the conclusion that there was no evidence of fraud, and in here rendering the judgment, for the reason that appellant on the trial below made no objection to the court’s charge submitting the issue of fraud, and, on the contrary, requested a special charge on the subject, thus, as is contended, waiving any right on appeal to question the sufficiency of the evidence to sustain the verdict of the jury in appellee’s favor on that issue. On original hearing appellee made no such objection to a consideration of the assignments of error in this case, at least one of which directly attacked the judgment for want of sufficient evidence to sustain it on the issue of fraud, and it is now too late to do so. See opinion on rehearing in Southern Gas & Gasoline Engine Co. v. Adams & Peters, 169 S.W. 1149.”

The above two cases served as a basis for the conclusion reached on motion for rehearing in Texas Employers’ Ins. Ass’n v. Downing, 218 S.W. 112 (Tex.Civ.App.—Amarillo 1919, writ ref’d), where the court said:

“Appellee, in his motion for rehearing, calls our attention to the fact that the proceedings of the trial court, in respect to the motion to require a physical examination of the plaintiff, are not embodied in a formal bill of exceptions, but are preserved in the record only by the motion itself and order overruling it, which recites therein an exception on the part of the defendant, copied separately in the transcript, the statement of the evidence heard on the motion appearing in the statement of facts. Appellee now asserts that we were without authority to consider the assignment because of the absence of a bill of exceptions, as required by the rules. If this objection to the consideration of the assignment had been presented at the proper time, we would have felt bound to have sustained it. Rules 53, 54, and 55 (142 S.W. xxi) for the District and County Courts; Weatherford M. W., etc., Ry. Co. v. Smith, 170 S.W. 133; Panhandle, etc., Ry. Co. v. Kirby, 108 S.W. 498; Dixon v. Cooper, 178 S.W. 695; Paris, etc., Ry. Co. v. Boston, 142 S.W. 944.
“The case was fully briefed by both parties, and was orally argued on original submission, and no such objection to the consideration of the assignment was then urged by appellee. The appellant, in the statement under the assignment, copied the motion in full, referred to the evidence introduced on its hearing, and stated that the court overruled the motion, and that appellant duly excepted to such action. The statement also referred to other proceedings had which were thought to have a bearing on the propriety of the action of the court on the motion. We think we were justified in considering the assignment on the uncontested statement made by appellant, and that it is now too late for appellee to urge this objection. Rules 40 and 41 (142 S.W. xiv) for the Courts of Civil Appeals; Southern Gas & Gasoline Engine Co. v. Adams & Peters, 169 S.W. 1149, opinion on motion for rehearing (writ of error was refused in this case); Taylor v. First State Bank, 178 S.W. 38, opinion on motion for rehearing.”

Part of the problem arises from this Court’s failure to require strict compliance by the Appellants with Rule 418. Unfortunately, this is a defect which appears in many appellants’ briefs filed in this Court. But, Appellee having filed his reply brief and having raised no question about the assignment of error to support point of error number three, we believe the Court properly considered the issue raised by the point of error and the objection concerning a proper assignment in the trial Court comes too late and is waived for failure to timely raise the issue.

We have also considered the other points of error in the Appellee’s Motion for Rehearing and all of the points are overruled and the Motion for Rehearing is denied.