author: DAUGHTREY, Judge.

text:
    John Bennett MAY, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee, at Nashville.
    April 3, 1979.
    Robert C. Watson, Nashville, for appellant.
    William M. Leech, Jr., Atty. Gen., William 0. Kelly, Asst. Atty. Gen., Roger T. May, Asst. Dist. Atty. Gen., Nashville, for appellee.
   OPINION

DAUGHTREY, Judge.

The petitioner-appellant, John Bennett May, is an inmate of the state penitentiary, where he is serving a two to ten year sentence for voluntary manslaughter. His sentence was set originally at ten years, but was modified by the Supreme Court on direct appeal of May’s conviction.

In his current petition for post-conviction relief, May contends that the Supreme Court also ordered the manslaughter sentence to be served concurrently with a thirty year armed robbery sentence previously imposed in a separate case, and he insists that prison records should be changed to reflect this fact. May bases his contention on a typed notation on the procedendo order, which reads: “Expiration with Sentence now being served. Affirmed by Supreme Court.” He argues that the sentences are thereby ordered to expire at the same time.

The petitioner’s manslaughter sentence was originally ordered by the trial court to be served consecutively to the previously imposed robbery sentence. In its opinion affirming the judgment as modified, the Supreme Court said:

It is, therefore, ordered by the Court that the plaintiff in error, for the offense of voluntary manslaughter, as charged in the indictment, be retained in the custody of the warden of the state penitentiary, and there confined at hard labor for a term of not more than ten years and not less than two years, said sentence to run at the expiration of sentence plaintiff in error is presently serving in the state penitentiary (emphasis added).

Based on the record, the trial judge dismissed the petition for post-conviction relief without appointing counsel, allowing amendments to the petition, or setting it for an evidentiary hearing. The petitioner contests this action, and he further complains of the trial judge’s failure to comply with T.C.A. § 40-3803, which provides that the same judge who presided at trial shall not be assigned to hear and determine the related post-conviction matter, unless an issue is raised concerning the competency of trial counsel.

We hold that the trial court’s order denying relief and dismissing the petition was proper in this case. The petition asserts a very narrow ground for relief, which could be and was resolved on the basis of court records. It does not appear that any amendments to the petition were necessary, under T.C.A. § 40-3815. Furthermore, the petition was in proper form and its content did not raise an issue calling for an evidentiary hearing. Given these circumstances, the trial court was under no obligation to appoint counsel. Crumley v. Tollett, 4 Tenn.Cr.App. 495, 474 S.W.2d 148 (1971); Curelton v. Tollett, 477 S.W.2d 233 (Tenn.Crim.App.1971). Tennessee law recognizes that where the petition conclusively shows that the petitioner is entitled to no relief, the petition may be properly dismissed without an evidentiary hearing. Guy v. State, 4 Tenn.Cr.App. 218, 470 S.W.2d 28 (1971). Such was clearly the case here.

Nor do we find reversible error in the trial court’s failure to designate a different judge to rule on this matter. While it has been held that T.C.A. § 40-3803 is mandatory in nature, Eunis Howell v. State of Tennessee, Court of Criminal Appeals at Nashville, released April 4, 1978, this Court has also held that the statute “should not be construed ... [to prevent] the presiding trial judge from ruling on petitions which raise no questions calling for a hearing.” Earnest Burchfield v. State of Tennessee, Court of Criminal Appeals at Knoxville, released September 25, 1975. Fully recognizing the mandatory nature of the statute, we are nevertheless persuaded that any § 40-3803 error has been rendered harmless by the circumstances of this case, under the provisions of T.C.A. § 27-117. Certainly this would seem to be true where the only matter raised by petitioner concerns the orders of the appellate court and not the actions of the judge who presided at trial.

The assignments or error are therefore overruled, and the judgment of the trial court is affirmed.

O’BRIEN and BYERS, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Lewis H. ROLIN and David H. Snider, Appellants, v. STATE of Tennessee, Appellee.
    Nos. 2273 and 2274.
    Court of Criminal Appeals of Tennessee, at Nashville.
    April 3, 1979.

      Donald P. Harris, Franklin, for appellant Rolin.
    Richard A. Buerger, Franklin, for appellant Snider.
    William M. Leech, Jr., Atty. Gen., Robert E. Kendrick, Deputy Atty. Gen., Nashville, Elmer D. Davies, Jr., Dist. Atty. Gen., Joseph D. Baugh, Jr., Asst. Dist. Atty. Gen., Franklin, for appellee.
   OPINION

DAUGHTREY, Judge.

The defendants-appellants, Rolin and Snider, pleaded guilty to petit larceny in two separate cases and received one year sentences in each case.

At the guilty plea hearing on June 21, 1978, the question of concurrent-consecutive sentencing arose, and in this connection, the related issue of the defendants’ prior criminal record was raised. The defendants’ attorneys indicated they had no knowledge other than “what my client advised me.” The prosecutor then suggested that a pre-sentence report would be helpful, and the trial judge concurred. He ordered the matter continued to the next motion day, which apparently was July 7, 1978. Rolin’s attorney asked whether the defendants would need to be present at that time, and the judge responded, “I think they should be present. We might want them to testify.” Nevertheless, the record shows that when the case was called on July 7, the defendants were not present, but that the trial judge announced his decision to run the sentences consecutively anyway.

The record also fails to show any offer of proof on the question of sentencing at the June 21 hearing, nor any objection to the defendants’ absence by defense counsel at the July 7 hearing. They nevertheless insist that the defendants had a right to be present on July 7, and further, that they had a right to be heard at that time. They contend that the trial judge violated these rights and that the case should be remanded for a full hearing.

We note that the sentencing order was actually entered on July 12, 1978. In that order, the trial court ruled, based on the information contained in the pre-sentence reports, that the defendants were “persistent and professional criminals as defined in Gray v. State, 538 S.W.2d 391 (Tenn.1976).” He therefore ordered the sentences to be served consecutively to each other and to sentences then being served by the defendants in Davidson County.

We hold that the record is not sufficient to sustain the defendants’ contention that their rights in this matter have been violated. It appears, superficially at least, that they had the opportunity to present evidence on the sentencing question at the June 21 hearing and that they failed to do so. Furthermore, this Court has held that a criminal defendant has no right to be present at the time the consecutive sentencing order is entered, so long as he was present when the judgment was announced and the trial court imposed sentences on his guilty plea. Jessie James McMahan v. State of Tennessee, Court of Criminal Appeals at Knoxville, released July 26, 1977.

Finally, we have reviewed the pre-sen-tencing reports in this case, and they show an extensive record of arrests and convictions in Davidson County for both Rolin and Snider. Thus it appears highly unlikely that the defendants’ presence or their testimony on July 7 would have produced a different result on the question of consecutive sentencing.

The judgment of the trial court is affirmed.

O’BRIEN and BYERS, JJ., concur.


author: DUNCAN, Judge.

text:
    Ronald E. LEDUNE, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee, Jackson.
    May 17, 1979.

      G. Robert Radford, Huntingdon, for appellant.
    William M. Leech, Jr., Atty. Gen., Richard S. Maxwell, Asst. Atty. Gen., Nashville, George W. Hymers, Dist. Atty. Gen., Howard P. Douglass, Asst. Dist. Atty. Gen., Jackson, for appellee.
   OPINION

DUNCAN, Judge.

The appellant-defendant, Ronald E. Le-dune, along with four other individuals, was indicted for first degree murder. He was tried separately in the Henderson' County Circuit Court, found guilty of first degree murder and sentenced to serve 28 years in the penitentiary. However, for reasons not stated in the record, the trial court granted the defendant’s motion for a new trial and set aside the conviction. At a second trial, the defendant was again found guilty of first degree murder, but this time the jury fixed his punishment at 27 years.

In this appeal, the defendant contests (1) the trial court’s action in overruling his motion for a change of venue, (2) the admission of evidence of his silence in the face of an alleged incriminating statement, and (3) the legal sufficiency of the convicting evidence.

We find merit to the defendant’s second contention, and we reverse and remand this case for a new trial.

This prosecution arose out of the brutal slaying of Hubert Barker at his trailer home in Lexington. The victim’s body was discovered by his son-in-law, Guy Goff, on February 4, 1977. Mr. Barker had been stabbed several times with a sharp instrument and, according to the medical testimony, he died as a result of these multiple stab wounds.

By his first assignment of error, the defendant alleges that the trial court erred in refusing to grant his motion for a change of venue.

The defendant argues in his brief that the death of the victim had received considerable publicity, and that the prospective jurors were aware of Clois Garner’s previous trial in which Garner’s confession implicating the defendant had been introduced in evidence. Also, he argues that the prospective jurors knew that he had been previously tried and found guilty of murder.

The defendant offered no witnesses or affidavits in support of his motion for a change of venue; thus, the record is devoid of any evidence that would support these arguments.

Our review of the voir dire proceedings discloses that none of the jurors were questioned about their knowledge, if any, of the previous trials involving the defendant and Clois Garner. We do find that some of the jurors who were ultimately selected had heard about Mr. Barker’s death, but each of them stated that they had formed no opinion as to the defendant’s guilt or innocence, and that they could render a decision on the evidence presented in court. Several of the prospective jurors were excused for cause because they had fixed opinions about the case. However, in reviewing a claim of prejudicial pre-trial publicity, the question is whether the jurors who actually sat and rendered the verdict were prejudiced by that publicity. Adams v. State, 563 S.W.2d 804 (Tenn.Crim.App.1978).

The voir dire of the jurors that tried the defendant revealed no hostility or feeling against him that would have prejudiced his trial. The interrogation of these jurors showed they were impartial, and we find nothing in this record which would indicate that they were anything other than fair and impartial.

The question of a change of venue is largely within the discretion of the trial judge, and we may not review his action unless there is a clear abuse of that discretion. Adams v. State, supra; Broz v. State, 4 Tenn.Crim.App. 457, 472 S.W.2d 907 (1971). Based on the record before us, we find no abuse of discretion. This assignment is overruled.

Next, the defendant challenges the admission of the testimony of June Dunavant relating to an alleged admission by silence on his part. Ms. Dunavant’s testimony concerned a conversation which she overheard between the defendant’s co-indictees, Clois Garner and Belinda Garner Cagle.

June Dunavant testified that on the day after the death of Mr. Barker, she and Belinda Cagle were in the house trailer of Belinda’s brother, Clois Gamer, along with several other people, including the defendant. She stated that Clois Garner took his sister, Belinda, into the bedroom of the trailer, but that the bedroom door remained open. She further stated that she was standing at the entrance to the bedroom, some 6 to 8 feet from Clois Garner and Belinda, could hear and see them talking, and that the defendant was in the living room about the same distance away. At another point in her testimony, she placed the defendant some 16 feet from Clois Garner and Belinda. Ms. Dunavant stated that she did not know whether the defendant could see Clois Garner and Belinda as they conversed. According to her, in addition to the defendant, three other men, Clothel Garner, Tommy Grissom, and Larry Cagle, were seated in the living room. . She testified that all of these individuals in the living room were drinking beer, but she did not know whether they were talking. Ms. Dunavant then proceeded to testify about the conversation between Clois Garner and Belinda Cagle, as follows:

Q. Now, what did you — what did you hear that was said in there?
A. I just heard Clois tell Belinda that they robbed Mr. Barker.
Q. Did he use that word “they?” Well, I guess he—
A. He said “we.”
Q. He would say “we?”
A. Yes.
Q. All right, he said we did what?
A. He said, “We robbed Mr. Barker.” And she said, “You didn’t?” And he said, “Yes, we did.” And she said, “Well, you didn’t hurt him?” And he said, “Well, we had to kill him.”
Q. “We had to kill him”?
A. Yes, sir.
Q. And you heard these statements?
A. Yes, sir.
Q. At the time—and the Defendant was there present in that same room where you were when these statements were made?
A. Yes, he was over on the couch.
Q. Did the Defendant say anything at the time these statements were made by Clois Garner?
A. Not that I heard.
Q. Did anybody say anything?
A. Not that I heard, no.

Further, Ms. Dunavant testified that Clois Gamer and Belinda came out of the bedroom and that “Clois told us as we was fixing to leave that if we told anybody or if we talked that we would get the same thing Mr. Barker got.”

Over the objection of the defendant, the trial court allowed Ms. Dunavant’s testimony to go before the jury as an admission by silence on the part of the defendant.

Tennessee has long recognized the rule that when a statement is made in the presence and hearing of one accused of an offense and the statement tends to incriminate him, or is of an incriminating character, and such statement is not denied or in any way objected to by him, both the statement and the fact of his failure to deny it or make any response to it, is admissible against him as evidence of his acquiescence in its truth. Lovvorn v. State, 192 Tenn. 336, 241 S.W.2d 419 (1951); Camper v. State, 187 Tenn. 511, 216 S.W.2d 18 (1948); Phelan v. State, 114 Tenn. 483, 88 S.W. 1040 (1904); Green v. State, 97 Tenn. 50, 36 S.W. 700 (1896); Queener v. Morrow, 41 Tenn. (1 Cold.) 123 (1860); Kendrick v. State, 28 Tenn. (9 Hump.) 722 (1849).

In recent times in criminal cases this rule of tacit admissions has been modified by constitutional developments, and it will not be applied where the statement and failure to deny occur after police custody or interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Braden v. State, 534 S.W.2d 657 (Tenn.1976); Drake v. State, 576 S.W.2d 593 (Tenn.Crim.App.1978); Ware v. State, 565 S.W.2d 906 (Tenn.Crim.App.1978). However, the rule is still viable if the accusation and silence takes place prior to police custody. See D. Paine, Tennessee Law of Evidence § 57 (1974).

Thus, if the present case involved a true admission by silence, we would find no difficulty in holding that the testimony of the witness would have been properly admitted in evidence. The problem that confronts us, however, is that the facts surrounding the alleged accusation and silence do not warrant a finding that there was such an admission by the defendant. There is a serious question whether the accusation was made in the defendant’s presence, and even if so, whether he heard and understood it. But apart from those questions, we find that no accusation was made against this defendant that would have demanded a denial from him. Ms. Dunavant’s use of the terms in relating Clois Garner’s statement that “We robbed Mr. Barker” and “We had to kill him” has no more reference to the defendant than it would have had at least to four or five other people in the trailer. At no point was the defendant referred to by name or otherwise individually pointed out as being the person against whom the accusation was being made. The pronoun “We” in the context in which Clois Garner used it could have encompassed anyone else in the trailer or for that matter, could have meant another, or others, who were not even on the scene at the trailer. As Mr. Paine points out in his treatise, these “admissions are suspect.” It is our opinion that before such admissions can be admitted in evidence, not only must a clear showing be made that the implicating accusation was made in a defendant’s presence and clearly understood by him, but also, there must be a direct showing that the defendant was the target of the accusation.

Therefore, based upon the facts in this record, we hold that the trial court erred in allowing June Dunavant’s testimony to be admitted into evidence. We sustain this assignment.

We find no merit to the defendant’s final complaint about the alleged insufficiency of the evidence. Aside from the testimony of June Dunavant, there was other competent proof implicating the defendant in the killing of Mr. Barker.

The evidence showed that the defendant and his accomplice, Clois Garner, lived together and were in company with each other the day of the murder, as well as the day after. Further, the victim had been robbed of a “stack of bills,” and, according to Belinda Cagle, the day after the homicide, she saw the defendant counting money, including “hundred-dollar bills.” Also, Elmer Moody testified about an incident where the defendant and Clois Garner wanted to play pool with him, but they did not have any money. Mr. Moody stated that the defendant and Clois Garner left and returned in forty-five minutes to an hour and began playing pool, at which time he noticed that the defendant had a large sum of money consisting of “hundreds and fifties.” Moody said to the defendant: “Son, where did you get all that money at? Did you rob a bank, kill somebody, or what?” The defendant replied, “You said it right the last time.”

It was the jury’s function to place whatever interpretation they desired upon the defendant’s answer to Mr. Moody’s inquiry, and to draw necessary inferences therefrom, if they so desired.

While the precise date and time that the above events took place involving Mr. Moody are not stated in the record, the jury was entitled to infer, in considering this proof along with the other proof in the record, that those events occurred near the time of Mr. Barker’s death, and could have even inferred that Mr. Barker was robbed and killed by the defendant and Clois Garner between the time of their first contact with Mr. Moody about playing pool and the second occasion when the game actually took place.

Further, there was evidence that the day after the homicide, the defendant and Clois Gamer fled from Tennessee and went to the state of California. The jury was entitled to consider this flight on the part of the defendant as showing an inference of guilt. Rogers v. State, 2 Tenn.Crim.App. 491, 455 S.W.2d 182 (1970); 22A C.J.S. Criminal Law § 625a, b (1961).

From our review of the competent proof in this record, we conclude that the evidence is ample to support the verdict of the jury. The defendant has failed to carry his burden to show that the evidence preponderates against the verdict and in favor of his innocence. State v. Thompson, 549 S.W.2d 943 (Tenn.1977). Therefore, we specifically state that we are not reversing this case because of any insufficiency of the evidence. Rather, our reversal is predicated on the erroneous admission of the testimony of June Dunavant. While we find the evidence to be sufficient to support the verdict, it is obviously not overwhelming, and we cannot say that this improperly admitted evidence did not influence the verdict of the jury to the prejudice of the defendant.

We reverse the defendant’s conviction and remand this case for a new trial.

WALKER and DAUGHTREY, JJ., concur.

      . The defendant was indicted along with Clois Gamer, James Ray Maness, Harrison G. Crowe and Belinda Cagle. Clois Gamer was tried separately, convicted of first degree murder and on appeal his conviction was affirmed. See Clois Gamer v. State, Tenn.Crim.App., unpublished, Jackson, October 12, 1978.

      . According to the defendant’s motion for a new trial filed after his first conviction, the case against Maness and Crowe had been dismissed and they had been re-indicted as accessories after the fact. The record contains no information as to the disposition of the case against Belinda Cagle.

      . According to the testimony of Belinda Cagle, James Maness was also in the trailer at that time.


text:
    Lee COLE, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    May 25, 1979.
    Mary Neill Southerland, Chattanooga, for appellant.
    William M. Leech, Jr., Atty. Gen., William P. Sizer, II, Asst. Atty. Gen., Nashville, Jerry S. Sloan, Asst. Dist. Atty. Gen., Chattanooga, for appellee.
   OPINION

DAUGHTREY, Judge.

In this appeal, the sole issue raised by the defendant-appellant concerns the failure of the trial judge to hold an evidentiary hearing on the defendant’s petition for writ of error coram nobis, brought under T.C.A. § 40-3411. That statute, as amended by Acts 1978, ch. 738, § 1, now provides that “[u]pon a showing by the defendant that he was without fault in failing to present certain evidence at the proper time, a writ of error coram nobis will lie for subsequently or newly discovered evidence relating to matters which were litigated at the trial if the judge determines that the evidence may have resulted in a different judgment, had it been presented at trial.” This amendment apparently creates an exception to the provision in § 40-3411 immediately preceding it, which limits the relief available by writ of error coram nobis to “errors dehors the record and to matters that were not or could not have been litigated on the trial of the case, on a motion for a new trial on appeal . . . or in a habeas corpus proceeding.” See generally Johnson v. Russell, 218 Tenn. 443, 404 S.W.2d 471 (1966); Rowe v. State, 498 S.W.2d 322 (Tenn.1973).

The subject matter of the instant petition is a statement purportedly signed by the victim of the offense for which the defendant was convicted. It reads:

I, Willie Longmire, state that I was mistaken when I identified Lee Cole as the person who robbed me. I was confused and frightened about the robbery and do not want someone to suffer because of this.

The evidence at trial established that Mr. Longmire, 77 years old at the time of the offense, was accosted while walking home from a nearby grocery by a man he said was known to him as “Lee Coleman.” The robber first asked Longmire for a cigarette and when his request was declined, he apparently became angry and attacked Long-mire from behind. He hit the old man, knocked him down, earned away his groceries (worth some $35.00), and then returned to resume beating him. Longmire lost consciousness, and when he came to, he was lying wounded and bleeding in a ditch some distance away. His wallet and pocket change (totalling approximately $32.00) were missing. Longmire was driven to a hospital by a taxi driver. There he described the attack to police and gave them the' name “Lee Coleman” and the defendant’s address, which was in the victim’s immediate neighborhood. At trial, Longmire identified Cole as the robber and said he had known the defendant for some four or five years.

The victim’s identification of Cole was subjected to extensive and rigorous cross-examination by defense counsel. Longmire said that the defendant had asked him to “drop charges” in exchange for money and Cole’s promise “not to do it again.” Long-mire further testified that he initially agreed to withdraw prosecution and that he so informed members of the district attorney’s office, indicating to them that he was “scared” of Cole. Apparently reassured by the prosecutors, Longmire later decided to testify in the case, and at trial he was positive and unequivocal in his identification of Cole as his attacker.

The defendant produced one witness who testified that Longmire had told her that Cole was not the man who had attacked him. On direct examination, the following colloquy occurred:

Q: Do you remember — were you up here the last time this case was set for court?
A: Yes, ma’am.
Q: Do you remember accompanying Mr. Cole and myself and Mr. Longmire down to the Attorney General’s office?
A: Yes, I was with you all that day.
Q: O.K. Do you remember a statement that Mr. Longmire made at that time?
A: Yes, I do.
Q: What did he say?
A: He [Longmire] said that he was — that he [Cole] did not do that to him [Longmire]. He [Longmire] said that he was going right up here to the— whatever the name of that place is— right down here — said he was going up there and tell them that he’d [Longmire] testify that he [Cole] did not do nothing to him [Longmire],

Cole testified that Longmire had said to him, “Don’t worry, I’m not going to prosecute.” Cole also produced several alibi witnesses. However, the jury apparently rejected his alibi defense and accredited the sworn testimony of the only eyewitness to the robbery, Mr. Longmire. Concomitantly, we must conclude that the jury knew of Longmire’s pre-trial ambivalence concerning his upcoming testimony and his identification of Cole as his assailant, and that the jury decided to accept Longmire’s testimony in court as opposed to his pre-trial declarations.

The defendant now complains of the trial court’s failure to hold a post-trial hearing to elicit Mr. Longmire’s purported recantation. The trial judge dismissed the petition without a hearing, on the ground that to permit further testimony from Mr. Longmire would create a “bad precedent” because it would invite witness intimidation and frustrate the policy favoring finality of judgments.

We conclude that the result reached by the trial judge was correct, although not for the reasons he assigned. We are in complete .agreement with the trial court’s expression of concern for the need for finality in criminal trials. And we recognize the danger that witnesses may be subjected to post-trial intimidation aimed at securing the recanting of damaging trial testimony. See generally Guy v. State, 1 Tenn.Cr.App. 366, 443 S.W.2d 520, 522 (1969). Both these problems are inherent in the process of re-litigation authorized by the 1978 amendment to § 40-3411. However, the legislature has expressed a clear intention that these risks be balanced against a concern for minimizing injustice, and has therefore provided for relitigation in limited circumstances.

We nevertheless find that the judgment dismissing the petition in this case should be affirmed. When confronted by a § 40-3411 Request, the trial judge must make the following findings:

(1) whether or not there now exists subsequently or newly discovered evidence (even though related to matters previously litigated),
(2) which might have resulted in a different judgment had it been presented at trial,
(3) but which was not presented at that time through no fault of the defendant.

As a threshold matter, the post-trial statement signed by Mr. Longmire does not qualify as “subsequently or newly discovered evidence,” because the substance of the statement was known to the defendant and was fully explored at trial. Simply put, it cannot be said to be “newly” discovered, and thus no basis exists for a hearing to determine the remaining questions prerequisite to the issuance of a writ, i. e., whether the evidence, if presented, would have produced a different result, and whether the defendant should be charged with its omission into evidence. The petition should have been dismissed on this basis.

The judgments of conviction in the Trial Court are hereby affirmed.

O’BRIEN and CORNELIUS, JJ., concur.


author: CORNELIUS, Judge.

text:
    Douglas Vincent METHENY, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    June 12, 1979.
    Cert. Denied Oct. 22, 1979.

      Ann Mostoller, Oak Ridge, for appellant.
    William M. Leech, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, Mike Lawson, Asst. Dist. Atty. Gen., Clinton, for appellee.
   OPINION

CORNELIUS, Judge.

Appellant, Douglas Vincent Metheny, is before this court on three cases appealed from the Criminal Court of Anderson County. The cases are consolidated in this opinion, as they obviously should be.

Appellant was indicted as follows:

1. Armed Robbery, January 8, 1977, of Clyde and Myrtle Welch;
2. Burglary in the first degree, January 8, 1977, by breaking and entering residence of Clyde and Myrtle Welch;
3. Being an Habitual Criminal, having on January 8,1977 committed the offense of armed robbery on the persons of Clyde and Myrtle Welch when he was then a person who had been seven times convicted within the purview of Tennessee Code Annotated § 40-2801.

On July 26, 1978, a jury found appellant guilty of burglary in the first degree and fixed his punishment at not less than five nor more than fifteen years in the state penitentiary and guilty of armed robbery with his punishment fixed at fifteen years in the state penitentiary. On the same date, at a bifurcated hearing, the same jury found appellant to be an habitual criminal as charged in the third indictment. It is from these three convictions the appellant is now before us assigning a total of six errors on the part of the trial court.

Appellant’s first assignment of error is that the State violated the Interstate Agreement on Detainers, Section 40-3901, et seq. An examination of this record does not demonstrate that the State of Tennessee caused a detainer to be lodged with the federal authorities for the appellant. The appellant’s counsel filed and argued a motion to dismiss the indictments because appellant had been brought before the court three separate times through a writ of ha-beas Corpus ad prosequendum and returned to federal custody without a trial or final determination of his cases. The trial judge heard the motion, took the matter under advisement and later entered an order denying the motion which included a thorough opinion.

The trial judge held that the compact agreement is not the exclusive means of transfer of prisoners between jurisdictions, and a writ of habeas corpus ad prosequen-dum does not come under the definition of “detainer” for the purposes of invoking the provisions of the agreement. United States v. Scallion, 548 F.2d 1173 (5th Cir.). The United States Supreme Court reversed an opinion of the Court of Appeals for the Second Circuit which held that a writ of habeas corpus ad prosequendum was a de-tainer entitling the State inmate to the protection provided in Article IV and specifically to a trial before his return to the state institution. United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978). The Supreme Court clearly held the writ of habeas corpus ad prosequendum not to be a detainer within the meaning of the agreement and thus does not trigger the application of the agreement. Mauro, supra. This assignment of error is overruled.

Appellant’s second assignment of error is that the District Attorney failed to honor a plea agreement entered into by the parties, which plea agreement the court must honor. In the case of James Douglas Orange v. State, 1976, O’Brien, J., James Douglas Orange relied upon Santobello v. United States, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 to enforce a plea agreement, as does this appellant. In Santobello, the statement was made that the courts will specifically enforce agreements made by the government in the process of plea bargaining after the guilty plea is accepted by the court. No authority was offered in Orange, supra, nor has any been offered herein, to support the appellant’s position that a plea bargaining agreement will be enforced prior to its acceptance by the court. Where an agreement is accepted and breached, one of two results ordinarily follows, depending on the circumstances: (1) either specific performance of the agreement is directed, or, (2) the parties are restored to the status existing immediately before the plea was entered.

The bill of exceptions (line 24, page 28 through line 5, page 29) reflects that appellant’s counsel attempted to take up with the trial judge the question of the plea bargain agreement but she did not succeed. We think the trial judge was in error not to allow appellant’s counsel to complete the record on this point. However, appellant’s counsel did not except to the trial judge’s ruling. It has long been the rule of this court that errors to which no objections are made and exception taken in the court below cannot be raised on appeal. Ezell v. State, 413 S.W.2d 678, 681 (Tenn.). Furthermore, appellant has not demonstrated the loss of any trial tactic or fundamental right as a result of this miscarriage of negotiations. In Orange, supra, this court adopted the comment of a Maryland court in Wynn v. State, 22 Md.App. 165, 322 A.2d 564:

“We cannot overlook the fact that a prosecutor has a profound obligation to society. If prior to the consummation of a plea bargain he foresees that it might endanger society, he has not merely the right, but the responsibility, to withdraw from the agreement. Plea bargains should not be specifically enforced in the absence of affirmative evidence of prejudice arising from the bargain, which prejudice cannot be remedied by permitting the defendant to withdraw his plea and commence anew. Only upon a finding of such inexpiable prejudice should a defendant be permitted the option of specific performance by the trial court.”

There being no affirmative showing of irremediable prejudice to appellant, we overrule this assignment of error.

Appellant’s third assignment of error addresses the denial of a request for an instruction on criminal trespass as a lesser included offense of first degree burglary and the ordering of the sentences to run consecutively. This record does not support the need for an instruction upon the law of criminal trespass. Howard v. State, 578 S.W.2d 83 (Tenn.1979; recommended for publication).

The trial court ordered the sentences for first degree burglary and for armed robbery to run consecutively to the federal sentence appellant is serving and to run consecutively as to each other. The trial judge ruled this was necessary “in order to protect the public from further criminal conduct by the defendant, whom the court finds to be both a persistent offender and a multiple offender as judicially defined.” We do not find this ruling of the trial judge to conflict with the holdings in Greer v.. State, 539 S.W.2d 855, 860 (Tenn.Cr.App.). This ruling also is supported by Gray v. State, 538 S.W.2d 391, 393 (Tenn.). The indictment under which appellant was convicted charged appellant with being an habitual criminal, which is a status, and did not charge an independent crime to the armed robbery offense. Upon being found guilty under the armed robbery indictment, the “trigger was pulled” for the habitual criminal indictment, the conviction thereunder enhancing the armed robbery sentence. Harrison v. State, 394 S.W.2d 713 (Tenn.); Evans v. State, 571 S.W.2d 283 (Tenn.). The charging procedure followed in this case is the same as in State v. Hudson, 562 S.W.2d 416 (Tenn.):

“The defendant was separately indicted and convicted in one trial of the following offenses and received the punishment indicated.”

Our Supreme Court approved the procedure of revising the judgments to comply with the law. The trial judge did this in his order entitled “Verdict of the Jury and Order of the Court.” This assignment of error is overruled.

Appellant’s fourth assignment of error attacks the introduction of proof of certain crimes which were felonies but which would have been misdemeanors in Tennessee. Appellant says it was further error to instruct the jury that any crime which is a felony in another state must be considered as a felony for the purposes of conviction under the habitual criminal statute in Tennessee. The State’s basis for proof of appellant’s status as a habitual criminal is found upon the following convictions:

1. Taking goods of a value in excess of $100.00, Peach County, Ga. (Compare T.C.A. § 40-2712 and T.C.A. § 39-4203);
2. Assault with intent to rape, State of Iowa (Compare T.C.A. § 39-605);
3. Receiving stolen property, State of Iowa (Compare T.C.A. § 40-2712 and Odell Smith v. State, C.C.A. at Jackson, February 1, 1979, Tatum, Judge).

We think the requisite criteria to support the status of having three prior convictions against him, as required under Section 40-2801 T.C.A., has been properly met. Crafton v. State, 545 S.W.2d 437, 439 (Tenn.).

Appellant’s counsel in the caption to this assignment of error complained conjunc-tively as to the trial judge’s instructions to the jury. We are cited no authority to support this part of the assignment and it is without merit. Rockett v. State, 475 S.W.2d 561 (Tenn.Cr.App.). This assignment of error is overruled.

Appellant’s fifth assignment of error relates to the trial judge’s allowing the introduction of certified copies of appellant’s conviction and the certified statutes from out of state. It is alleged that the District Attorney failed to comply with defendant’s motion for copies of such documents before trial.

The habitual criminal indictment in this case contains all the information required under Section 40-2803 T.C.A. The thrust of appellant’s assignment centers upon the difference between having the information in fact and having certified information. Appellant states the complaint as follows:

“There was no reason for the State to fail to show defense counsel the documents they intended to rely upon, particularly when they had willingly produced similar documents earlier; in fact, failure to provide defense counsel with proper documents compounded the error in that it led defense counsel to believe that they knew what documents would be introduced at trial.”

The bill of exceptions shows that the District Attorney answered the question by stating he had only shortly before trial received the certified copies. The trial judge overruled appellant’s objection and allowed this evidence. The record does not reveal a motion or an order for disclosure of evidence of the convictions alleged in the indictment. No effort was made in the appellant’s brief to explain how he was prejudiced by not seeing the certified documents. Anglin v. State, 553 S.W.2d 616, 622 (Tenn.Cr.App.). This assignment of error is overruled.

Appellant’s sixth assignment of error is that the habitual criminal statute is unconstitutional on its face and as applied in this case. He raises three points. The first point is that no evidence may be presented to the jury concerning the nature of the crime committed by the defendant or of his character reputation, social-economic standing. This court held in Delay v. State, 563 S.W.2d 905, 907 (1977) (Cert. denied Feb. 20, 1978, pet. rehear, denied April 3, 1978):

“[7] Johnson (a co-defendant) complains that the court refused his offer of proof. During the habitual criminal trial, he sought to show by his wife his present good behavior. This was not error. The only issue at this trial was the validity of Johnson’s prior convictions.”

In the instant case the trial judge allowed the appellant to take the stand over the State’s objection. During his testimony the State raised several specific objections which were sustained. However, the trial judge clearly advised appellant’s counsel that he was not cutting off appellant’s right to testify [on relevant matters]. We find no abuse of discretion on the part of the trial judge.

The next issue is that the jury had no leeway to enhance the sentence without automatically granting a life sentence without parole, and that this amounts to a form of cruel and unusual punishment. Our Supreme Court, in 1975, in an unanimous opinion, authored by [then] Justice Henry, clearly answered this issue against appellant. Pearson v. State, 521 S.W.2d 225 (Tenn.) (citing with approval this court’s opinion of Hobby v. State, 499 S.W.2d 956 (Tenn.Cr.App.). Appellant says in effect that the above cases have been compromised by Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). The lead opinion of Woodson, supra, covers six points all inter-locked to capital punishment, the death penalty, and who would live and who would die. It does not treat the subject of automatic sentences, but rather the subject of automatic death penalties.

“This whole country has traveled far from the period in which the death sentence was an automatic and commonplace result of conviction . . . ” Williams v. New York, 387 U.S. 241, 247, 93 L.Ed. 1337, 69 S.Ct. 1079, 1083 (1949). Woodson v. North Carolina, supra.

This court has traversed this issue since Woodson v. North Carolina, supra, and again found the habitual criminal statute does not impose cruel and unusual punishment. Glasscock v. State, 570 S.W.2d 354, 355 (Tenn.Cr.App.), cert. denied Aug. 28, 1978.

Appellant next says it is error to require the jury that convicts of the triggering offense to determine the defendant’s status of being an habitual criminal. We think appellant has misconstrued Bishop v. State, 563 S.W.2d 913 (Tenn.Cr.App.).

“Even though this assignment of error is not properly before this court, we note that the jurors had already been qualified before hearing the burglary evidence and find no merit to the appellant’s contention that they should be qualified again before hearing the habitual criminal evidence. The same jury is required to hear both facets of the bifurcated proceedings, and was found initially to be qualified. This assignment is overruled.”

Appellant contends that the habitual criminal statute is unconstitutional, because as applied in the instant case the life sentence was so excessive and disproportionate to the underlying offenses that it constituted a violation of the Eighth Amendment protection against cruel and unusual punishment. Appellant relies upon the rationale of Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973) and Rummel v. Estelle, 568 F.2d 1193 (5th Cir. 1978).

In Elnorris Smith v. State of Tennessee, at Jackson, opinion filed Oct. 18, 1978, Duncan, J., another panel of .this court found:-

“The underlying offenses of Hart and Rummel can hardly be equated with the defendant’s underlying offenses in the present case. The same thing must be said in comparing the Hart and Rummel triggering offenses with the defendant’s triggering offense.”

We adopt the comparison test of Smith, supra. The present case has underlying offenses of assault with intent to rape and taking goods of a value in excess of $100.00, as well as a triggering offense of armed robbery and the life sentence given was not excessive and disproportionate to the underlying offenses. This assignment of error is overruled.

We affirm the judgments below.

DWYER and BYERS, JJ., concur.

      . Upon hearing appellant’s motion, the trial judge found the District Attorney had not filed a detainer within the meaning of Article IV(e) of the agreement.

      . See T.R. 61, page 54.

      . Motion for discovery, filed August 5, 1977, clearly did not cover such a request. We are unable to find an order covering the three items covered in this motion (T.R. # 61, page 13).


text:
    Billy HULL, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    June 28, 1979.
    Permission to Appeal Denied by Supreme Court Sept. 4, 1979.

      Jerry H. Summers, Chattanooga, for appellant.
    William M. Leech, Jr., Atty. Gen., William P. Sizer, II, Asst. Atty. Gen., Nashville, Lawrence E. Young, Asst. Dist. Atty. Gen., Chattanooga, for appellee.
   OPINION

CORNELIUS, Judge.

Appellant is before this court following an evidentiary hearing wherein the trial judge found his claims for post-conviction relief to be without merit and dismissed his petition. We affirm the dismissal.

Appellant was convicted in the Criminal Court of Hamilton County of being an accessory before the fact of first degree murder and sentenced to twenty years in the State penitentiary. On his direct appeal to this court his conviction was affirmed. The Tennessee Supreme Court denied certiorari. Billy Hull v. State of Tennessee, 553 S.W.2d 90. Appellant filed petition for a writ of habeas corpus in United States District Court for the Eastern District of Tennessee, which petition was dismissed. Thereafter, this petition was filed and an evidentiary hearing was conducted. The matter was taken under advisement and subsequently, the trial judge filed his memorandum and order dismissing the petition.

By his assignments of error appellant contends that his constitutional rights were violated and his conviction rendered void because the State suppressed exculpatory evidence which should have been turned over to his counsel pursuant to his pretrial motions. Appellant says the State withheld valuable evidence by the action of the Chattanooga Police Department allowing the victim’s shirt to be destroyed without being subjected to scientific analysis for powder burns. He claims the errors complained of were not harmless errors. He alleges his petition should have been sustained upon the ground of newly discovered evidence which was relevant and material to his innocence and defense.

The trial judge in his memorandum, and in response to the claim that the State suppressed exculpatory evidence in the original trial which should have been turned over to appellant’s counsel, found:

1. The State did, in fact, furnish to the defendant (pursuant to his pre-trial motion and order) all exculpatory material and information.
2. The State did, in fact, furnish to the defendant (pursuant to his pre-trial motion and order) the relevant details of all agreements “entered into between the State and any prosecution witness, co-defendant, or accomplice that could conceivably influence his testimony.”

The finding of a trial judge who has seen and heard the witnesses testify in an oral hearing, and considered the conflicting testimony, will be given the weight of a jury verdict. Long v. State, Tenn.Cr.App., 510 S.W.2d 83, 86. The findings of the trial judge are supported by the record.

The United States Supreme Court in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104, stated the following:

“We do not, however, automatically require a new trial whenever ‘a combing of the prosecutor’s files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict . . .’ United States v. Keogh, 2nd Cir., 391 F.2d 138, 148.”

We overrule this assignment of error.

Appellant’s second assignment of error attacks the action of the Chattanooga Police Department in allowing the victim’s shirt to be destroyed without subjecting it to scientific analysis for powder burns. Appellant’s counsel admits he did not amend the petition to specifically allege this assignment, but submits the error is of a constitutional dimension which can be raised on appeal by authority of Veach v. State, Tenn., 491 S.W.2d 81.

At the evidentiary hearing in the instant petition, Officer Slaughter testified:

A. I know the shirt was — all the clothing was kept and then one day it was just gone. When we reopened the investigation, we could not find any of the clothing.
Q. All right, is it not correct that the clothing was missing at the time of the trial and could not be produced in court.
A. That is correct.
Q. And you are aware of the controversy over whether there was powder burns or just gun residue on the shirt, are you not, Mr. Slaughter?
A. I know what was testified, yes.
Q. All right. Do you have any idea what happened to that shirt?
A. I do not. Or the pants or the shoes.
Mr. Summers: I have no further questions, Your Honor.

The State’s position is that this assignment of error is without merit since it is a matter which was raised at the trial level and could have been presented on direct appeal. This was waived under Section 40-3811—40-3812 T.C.A. We agree. See Gaskin v. State, Tenn.Cr.App., 530 S.W.2d 533, 534.

We have examined this assignment in the light of appellant’s claim that it is of constitutional dimension. We do not find the alleged error to be anything more than an evidentiary matter. In United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537, the Supreme Court dealt with the issue of lost tapes which were not produced and “their ultimate fate remains a mystery.” The record was devoid of credible evidence they were suppressed. The court said the Jencks decision and Jencks Act were not cast in constitutional terms. It held the question of the tapes was not one of constitutional dimension.

In the case of People v. Eddington, Mich. App., 218 N.W.2d 831, the Michigan court held the nonproduction of glass particles, which were once embedded in defendant’s shoes and which expert testimony indicated matched broken back-door glass in murder victim’s home did not violate defendant’s right to compulsory process and to present witnesses in his defense. See also, State v. Chabot, Me., 129 A.2d 559 and People v. Sauceda, 199 Cal.App.2d 47, 18 Cal.Rptr. 452, 457. We overrule this assignment of error.

Appellant’s third assignment of error is directed at the trial judge’s reference to “harmless error.” In the first paragraph of page 14 of his memorandum and order the trial judge found:

“The Court further finds that the complaints of the petitioner, taken singly or in the aggregate, would at most constitute harmless error. There were abundant evidentiary and physical facts corroborative of those witnesses’ testimony, and independent of the witnesses, which would have compelled the same result of conviction. Reddy v. Jones, 4th Cir., 572 F.2d 979.”

Examining the complaints of the petitioner in the light of the entire record of the case, cumulatively the complaints did not provide an impact so material as to affect the outcome of the trial. Hence, the trial court held there was no constitutional error which would afford relief under the post-conviction statutes.

We do not find appellant has carried the burden of proving a material error was committed in his original trial. The trial judge hearing the petition summarized his findings by use of a modifying and limiting sentence, “The court further finds that the complaints . . ; , would at most constitute harmless error.” The trial judge correctly applied the federal standards as required by Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

This assignment is overruled.

Appellant’s last assignment of error is the trial judge’s failure to sustain his petition and grant him a new trial upon the ground of newly discovered evidence which was relevant and material to his innocence and defense. We have in treating the other assignments of error found that the State has not suppressed material evidence which was exculpatory of the appellant. The appellant has not carried the burden of showing in his original trial a material error of such constitutional dimensions as would require a new trial. Therefore, it was not error for the trial judge to dismiss the petition without granting a new trial. This assignment of error is overruled.

The judgment below is affirmed.

DWYER and BYERS, JJ., concur.

      . The Federal District Judge, on pages 7 and 8 of his memorandum, reached the same results, reasoning the suppressed evidence must be exculpatory and of material value to the defense. Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706. The Federal District Judge was also of the opinion that the evidence in question could not dimmish petitioner’s culpability, therefore by reason of the character of the evidence, there was no constitutional error. United States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 49 L.Ed.2d 342.

      . See Dr. George Beckmann’s testimony in original bill of exceptions, pages 428 through 445, exhibit 15 to this record. Also see jury argument of appellant’s counsel, page 885, same reference.

      . The Federal District Judge found there had been no constitutional error committed in the state criminal trial. “ . [T]he harmless error statute becomes irrelevant to these proceedings.” (Page 9, memorandum civ. 1-77-153)


author: TATUM, Judge.

text:
    STATE of Tennessee, Appellant, v. Jerry Lynn HOPSON, Appellee.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    Sept. 11, 1979.
    Permission to Appeal Denied by Supreme Court Nov. 5, 1979.
    William M. Leech, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, Larry W. Weems, Asst. Dist. Atty., Greene-ville, for appellant.
    John T. Milburn Rogers, Greeneville, for appellee.
   OPINION

TATUM, Judge.

This is a post-conviction relief case in which the State appeals from a judgment of the Criminal Court of Greene County, granting the appellee a “delayed appeal” from a. judgment of this court affirming appellee’s conviction for armed robbery.

The appellee filed a petition for post-conviction relief attacking the validity of his conviction for armed robbery, alleging several grounds for relief. The trial judge found all of the issues in favor of the State, except for the appellee’s contention that his attorney unilaterally terminated the appellate process without the appellee’s knowledge or consent after assuring the appellee that he would “take the case all the way to the Supreme Court.” The court-appointed attorney did appeal the case to this court and this court affirmed the conviction, but the attorney did not apply to the Supreme Court for a Writ of Certiorari. The trial judge accepted the appellee’s testimony that his attorney promised to apply to the Supreme Court for certiorari and that he did not learn that the attorney had not done so until the time for filing had expired. See Moultrie v. State, 542 S.W.2d 835 (Tenn.Cr.App.1976).

The judgment of the trial court in part is as follows:

“ORDERED, ADJUDGED AND DECREED by the Court that the Petitioner, Jerry Lynn Hopson, be granted a delayed appeal from the adverse decision in the Court of Criminal Appeals of Tennessee at Knoxville filed on July 7, 1977, in the case of Harold Vernon Smith and Jerry Lynn Hopson, Appellants, vs. State of Tennessee, Appellee, Docket No. Ill, Greene Criminal, Armed Robbery charges. In said appeal, the Petitioner herein was represented by the Honorable Ray E. Cate of Knoxville, Tennessee.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that the Petitioner through his counsel, the Honorable John T. Milburn Rogers, be allowed ninety (90) days from the date of the entry of this Order in which to file his delayed appeal and the Clerk of the Court of Criminal Appeals is hereby ordered to provide said court-appointed attorney the transcript of record and all briefs heretofore filed in that cause and is further directed to forward said Petition for Writ of Certiorari to the Supreme Court of Tennessee upon filing of the same.”

The appellee did not appeal from the portion of the judgment adverse to him, so we are confronted only with the appeal by the State containing the following assignments of error:

1. The trial court erroneously held he had jurisdiction to vacate the judgment of the Court of Criminal Appeals in prior proceedings involving this appellee and grant a delayed petition for writ of cer-tiorari.
2. Even if the trial court had jurisdiction to grant a delayed petition for writ of certiorari, the trial court erroneously granted such a petition when the record reflects no violation of the appellee’s constitutional rights.

We concur with the State that the trial court has no jurisdiction to grant a “delayed appeal” from the Court of Criminal Appeals to the Supreme Court. T.C.A. § 40-3820 authorizes a trial judge to grant a delayed appeal in the nature of a writ of error from an original conviction when a prisoner can show that his right to appeal was denied in violation of his constitutional rights. However, this section only empowers the trial judge to grant a delayed appeal in the nature of a writ of error from the trial court to the Court of Criminal Appeals. Baugh v. State, 3 Tenn.Cr.App. 121, 457 S.W.2d 887 (1970). The only remedy for a prisoner who has been unconstitutionally deprived of his right to apply to the Supreme Court for certiorari is for this court to vacate its order affirming the prisoner’s conviction and to reinstate the same order so as to start anew the prisoner’s statutory period for filing the petition for certiorari. There is no authority for a trial judge to vacate and reinstate a judgment of this court. See State v. Williams, 529 S.W.2d 714 (Tenn.1975); Campbell v. State, 576 S.W.2d 591 (Tenn.Cr.App.1978); Moultrie v. State, supra.

We note also that only the Supreme Court or one of the Justices thereof can extend the time for the filing of a petition for a writ of certiorari from 45 days to 90 days. T.C.A. § 16-452; Gossett v. State, 224 Tenn. 374, 455 S.W.2d 585 (1970).

The State insists that the appellee is not entitled to the petition for the writ of certiorari. We agree that T.C.A. § 40-2018, providing that appointed counsel is required to represent a defendant only through the initial appellate review, is a valid statute. Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). However, here, counsel, having assured the convicted defendant that he would file for the writ of certiorari, failed to do so. Instead, he permitted the time for filing to expire without notice to the defendant. The defendant, thus deprived of his right to file a pro se petition, was deprived of his constitutional right and was entitled to relief. Campbell v. State, supra; Moultrie v. State, supra.

The attorney who represented the appellee in both the principal trial and on direct appeal to this court was not present and did not testify because he was engaged in another trial. The trial judge was ill advised in proceeding without the testimony of original counsel. We have observed on many occasions that original counsel, when available, should always testify in a post-conviction proceeding when there is an allegation that he was ineffective. The State cites Swaw v. State, 3 Tenn.Cr.App. 92, 457 S.W.2d 875 (1970) for the proposition that the uncorroborated testimony of a petitioner is insufficient to carry the burden where the judgment is regular upon its face and entitled to the presumption of validity. We are not confronted here with an attack on the validity of a judgment, but only with the right of the appellee to file for the writ of certiorari seeking a review of a judgment of this court by the Supreme Court. While we do not think that the trial judge was bound to accept the uncorroborated testimony of the appellee if not believed, we think that it was within his province to accept this testimony if he deemed it credible.

The trial judge did not have jurisdiction to make the portion of the judgment above quoted; that portion of his judgment is reversed.

Since the power to grant the relief is vested in this court, we must vacate and immediately reinstate the judgment of this court filed July 7, 1977 at Knoxville, CCA No. Ill, Greene County, affirming the conviction of appellee for armed robbery. This action is taken for the sole purpose of armed robbery. This action is taken for the sole purpose of starting anew the time for which the appellee may petition the Supreme Court for the writ of certiorari.

CORNELIUS, J., and BEASLEY, Special Judge, concur.


author: SPEARS, Justice.

text:
    Honorable Joe Edd GRIMM, Justice of the Peace, Petitioner, v. Edward Ray GARNER, Respondent.
    No. B-8384.
    Supreme Court of Texas.
    Oct. 24, 1979.
    Rehearing Denied Dec. 19, 1979.
    Felipe Reyna, Crim. Dist. Atty., Frank M. Fitzpatrick, Jr. and Randall L. Rogers, Asst. Crim. Dist. Attys., Waco, for petitioner. Clark & Vannatta, Richard E. Miller and Bill Vannatta, Waco, for respondent.
   SPEARS, Justice.

Petitioner, Joe Edd Grimm, a Justice of the Peace, appeals from the issuance of a writ of mandamus by the District Court of McLennan County commanding him to. grant a motion to set aside a criminal complaint pending in his justice court against Respondent, Edward Ray Garner. The power of the district court to issue the writ was upheld by the court of civil appeals. 577 S.W.2d 573. The question before us is whether Garner’s right to appeal from the justice court to the county court at law by trial de novo provided him with an adequate remedy at law. We hold that it does, reverse the courts below, vacate the writ of mandamus, and order this cause dismissed.

On April 14, 1978, Edward Ray Garner was charged with speeding in a complaint filed in Judge Grimm’s justice court in McLennan County. A jury trial on August 4, resulted in a mistrial. On September 12, more than thirty days after the mistrial, Gamer moved to set aside the complaint under the provisions of the Speedy Trial Act, Tex.Code Crim.Pro.Ann. art. 32A.02 (Vernon 1979). The pertinent provisions of that act read:

Section 1. A court shall grant a motion to set aside an indictment, information, or complaint if the state is not ready for trial within: ... (4) 30 days of the commencement of a criminal action if the defendant is accused of a misdemean- or punishable by a fine only.
Sec. 2. . (b) If a defendant is to be retried following a mistrial, an order granting a new trial, or an appeal or collateral attack, a criminal action commences for purposes of this article on the date of the mistrial, the order granting a new trial, or the remand.

Judge Grimm overruled Garner’s motion to set aside the complaint on September 21, whereupon Gamer brought this action in the district court for a writ of mandamus to compel Judge Grimm to discharge him. The district court granted the writ of mandamus.

The court of civil appeals affirmed, holding that Article V, Section 8 of the Constitution of Texas, which vests district courts and the judges thereof with jurisdiction to issue writs of mandamus, gave the district court the authority to issue a writ of mandamus compelling Judge Grimm to perform the act of setting aside the criminal complaint filed against Garner. Citing Thorne v. Moore, 101 Tex. 205, 105 S.W. 985, 986 (1907), the court held that it was not necessary for the writ to be issued in the enforcement of the court’s jurisdiction, because the constitutional grant of authority was a grant of distinct jurisdictional power independent of other jurisdictional provisions.

A mandamus proceeding is a civil proceeding rather than a criminal action. Hogan v. Turland, 428 S.W.2d 316 (Tex.1968). District courts are empowered by the Texas Constitution “to issue writs of habeas corpus, mandamus, injunction, and certiorari, and all writs necessary to enforce their jurisdiction. . ■ . . ” Tex.Const. art. V, § 8. We have interpreted that power to be a grant of distinct jurisdiction, carrying the substantive power to issue the writs named in all cases in which courts of law or equity under settled rules would have the power to issue them, whether they be necessary to enforce some jurisdiction given by other constitutional provisions or not. Thorne v. Moore, supra.

Article V, Section 3 of the Texas Constitution confers jurisdiction on this court to issue writs of mandamus in both civil and criminal cases. Pope v. Ferguson, 445 S.W.2d 950, 952 (Tex.1969); Stakes v. Rogers, 139 Tex. 650, 165 S.W.2d 81 (1942). In exercising this jurisdiction, we have consistently held that this court has no jurisdiction to issue writs of mandamus to supervise or correct rulings of a trial judge on motions or pleas which are mere incidents in the normal trial process when there is an adequate remedy by appeal for their correction. Pope v. Ferguson, supra, at 954. Trial courts that have issued extraordinary writs violative of this rule have also been held to be without jurisdiction to act. See Winfrey v. Chandler, 159 Tex. 220, 318 S.W.2d 59, 61 (1958) (district court writ of prohibition issued to prohibit county judge from trying a criminal case); Brady v. Fry, 517 S.W.2d 304 (Tex.Civ.App.—Beaumont 1974, no writ) (district court writ of mandamus issued to require municipal court to conduct a hearing on motion).

By amendment to Article V, Section 5 of the Constitution, effective January 1, 1978, the jurisdiction of the Texas Court of Criminal Appeals was expanded to confer concurrent jurisdiction to grant writs of mandamus in cases “regarding criminal matters.” Thomas v. Stevenson, 561 S.W.2d 845, 847 (Tex.Cr.App.1978). That court recently announced its test for the issuance of writs of mandamus in criminal cases. In Ordunez v. Bean, 579 S.W.2d 911 (Tex.Cr.App.1979), involving the Speedy Trial Act, the court applied the two traditional limitations on writs of mandamus. First, mandamus is not available if petitioner has an adequate remedy at law. Second, mandamus is not available to compel a discretionary as distinguished from a ministerial act. That court has also said that while it has the jurisdiction to issue a writ of mandamus in criminal cases, it is only available when no other adequate remedy at law is available. State ex rel. Vance v. Routt, 571 S.W.2d 903 (Tex.Cr.App.1978). This is consistent with the holdings of this court in Pope v. Ferguson and Winfrey v. Chandler. In a criminal case, this court adopts as a matter of comity the test announced by the court of criminal appeals. Pope v. Ferguson, supra.

It is Garner’s contention that he has no adequate remedy at law from Judge Grimm’s overruling of his motion to set aside the complaint. Since the offense with which he is charged is a class C misdemean- or, original jurisdiction is vested in the justice courts, and appeal is to the county court by trial de novo. Tex.Code Crim.Pro. Ann. art. 44.17 (Vernon 1979). Garner argues that in a trial de novo, none of the rulings of Judge Grimm will be reviewed by the county court because the case is tried “as if the prosecution had been originally commenced in that [county] court.” Garner further argues that if he is found guilty in county court and assessed a fine of $100 or less, there would be no right of appeal to the court of criminal appeals to correct any error committed by Judge Grimm. See Williams v. State, 170 Tex.Cr.R. 121, 339 S.W.2d 63 (Tex.Cr.App.1960); Tex.Code Crim.Pro.Ann. art. 4.03 (Vernon 1977).

We hold that Garner’s right to appeal to the county court or county court at law is an adequate remedy, and the mandamus issued by the district court is therefore an improper remedy here. Since the appeal to the county court would be by trial de novo, Garner would have the right to urge his same motion based on the Speedy Trial Act in the county court. The original court papers of the justice court case filed in the county court under the provisions of Article 44.18 of the Code of Criminal Procedure can form the basis of such a motion. The rulings of the county court on the motion would then be reviewable by the court of criminal appeals.

Judgments of the courts below are reversed, the writ of mandamus issued by the district court is vacated, and the cause is ordered dismissed.

      . Art. 44.18 reads:
      In appeals from justice and corporation courts, all the original papers in the case, together with the appeal bond, if any, and together, with a certified transcript of all the proceedings had in the case before such court shall be delivered without delay to the clerk of the court to which the appeal was taken, who shall file the same and docket the case.


author: PER CURIAM

text:
    Robert Clinton RICHEY, Petitioner, v. Loretta J. Richey BOLERJACK, Respondent.
    No. B-8583.
    Supreme Court of Texas.
    Nov. 14, 1979.

      Joel B. Mitchell, Austin, for petitioner.
    Joseph D. Martinec, Austin, for respondent.
   PER CURIAM

Loretta J. Richey Bolerjack filed a motion for contempt against Robert Clinton Richey, pursuant to Section 14.09(a) of the Texas Family Code, alleging that he had failed to make child support payments in accordance with a previous court order. She also requested the trial court to increase the amount of child support payments.

After a hearing, the trial court entered an order setting certain prospective child support payments. The trial court also found that Richey had failed to meet his prior support obligations. The court found him to be “in arrears in the amount of $1312.50” and entered the following order:

“IT IS FURTHER ORDERED that Respondent [Richey] pay to Movant [Boler-jack] by paying through the Travis County Domestic Relations Division at the Travis County Courthouse, Austin, Travis County, Texas, the sum of $328.00 on or before the 1st day of August, 1978; the sum of $328.00 on or before the 1st day of November, 1978, the sum of $328.00 on or before the 1st day of February, 1979, and the sum of $328.00 on or before the 1st day of May, 1979 until all amounts found to be in arrears and due for failure to pay child support are paid in full.”

The trial court did not otherwise mention Bolerjack’s motion for contempt in its order.

Richey duly appealed from this order. He contended that the trial court had, in reality, entered a judgment for arrearages, pursuant to Section 14.09(c) of the Texas Family Code. Accordingly, Richey argued that the judgment for arrearages failed to conform to the pleadings in the motion for contempt, contrary to the requirements of Rule 301, Texas Rules of Civil Procedure.

The Court of Civil Appeals sitting in Tyler dismissed Richey’s appeal. It held that the trial court’s order was not a final judgment for appeal purposes. 581 S.W.2d 780. That court placed controlling emphasis on the trial court’s failure to rule definitively on Bolerjack’s motion for contempt. In so holding, the Court of Civil Appeals relied on Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890 (1956). We hold that the appeal was improperly dismissed.

In North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966), this Court established the following rule for determining the finality of judgments for appeal purposes:

“When a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits ... it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such partied’. 400 S.W.2d at 897-98 (emphasis added).

In this case, the trial court entered a judgment disposing of both controversies before it. First, the court granted Boler-jack’s motion to modify the child support payments. Second, the trial court ruled that Richey had indeed failed to pay past child support obligations, and ordered him to pay the amount by which he was in arrears. The trial court’s order did not expressly reserve, for future consideration, its judgment on any part of Bolerjack’s motion. The fact that the trial court apparently entered a judgment for arrearages in response to a motion for contempt is a matter relevant only to the merits of Ri-chey’s appeal; it does not affect the finality of the trial court’s order.

The Court of Civil Appeals was mistaken in holding that Wagner v. Warnasch required a contrary result. In Wagner, the trial court specifically reserved judgment on the contempt motion until a later time. Absent such a specific reservation of judgment on part of a case then pending before a court, a judgment entered on the merits of a case will be presumed final for appeal purposes. Cf. Gani v. Gani, 495 S.W.2d 576 (Tex.1973).

Accordingly, the writ of error is granted. We regard the holding of the Court of Civil Appeals to be in conflict with North East Independent School District v. Aldridge, supra. Pursuant to Rule 483, Texas Rules of Civil Procedure, we reverse the judgment of the Court of Civil Appeals without hearing argument, and we remand the case to the Court of Civil Appeals for its consideration of the merits of the appeal.

      . Statutory references are to Vernon’s Texas Codes Annotated.


author: SHORT, Judge. CURETON, Chief Justice.

text:
    WILLIAMS et al. v. HENDERSON COUNTY LEVEE IMPROVEMENT DIST. NO. 3.
    Motion No. 9529; No. 1209-5521.
    Commission of Appeals of Texas, Section B.
    April 19, 1933.
    Eor original opinion, see 36 S.W. (2d) 204, which reversed in part judgment of the Court of Civil Appeals 19 S.W.(2d) 197.
    W. R. Bishop and Sam Holland, of Athens, and John H. Sharp, of Ennis, for plaintiffs in error.
    Justice & Sigler, of Athens, James Young, of Kaufman, and O. B. Freeman and Eckford & McMahon, all of Dallas, for defendant in error.
   SHORT, Judge.

In its motion for rehearing the defendant in error chiefly complains of the failure in our opinion to discuss the assignment of error which the Court of Civil Appeals overruled in its opinion claiming, very properly, that it had the right to have the Supreme Court pass upon these assignments of error, which the Court of Civil Appeals overruled, since the judgment of the trial court was affirmed and that of the Court of ‘Civil Appeals reversed by the opinion written by this section of the Commission. 19 S.W.(2d) 197; 36 S.W.(2d) 204.

Defendant in error in its supplemental motion for rehearing complains that the Commission of Appeals erred in reversing the judgment of the Court of Civil Appeals because the judgment of the trial court should be reversed and the cause remanded for the reason that the trial court erroneously overruled the special exceptions of the levee improvement district to those parts of the plaintiff’s petitions alleging negligence in the formulation and execution of the plan of reclamation and erroneously admitted evidence showing negligence in carrying out the plan of reclamation. In support of this contention, the following authorities are cited: Gregory v. Gulf & Interstate Railway Company, 21 Tex. Civ. App. 598, 54 S. W. 617; North Texas Traction Company v. Yates, 39 Tex. Civ. App. 114, 88 S. W. 283; Jefferson County Traction Co. v. Wilhelm (Tex. Civ. App.) 194 S. W. 448; City of San Antonio v. Fike (Tex. Civ. App.), 211 S. W. 639; Fort Worth & Denver South Plains Railway Co. v. Gilmore (Tex. Civ. App.) 2 S.W.(2d) 543; Throckmorton County v. Howsley (Tex. Civ. App.) 28 S.W.(2d) 951; Revised Civil Statutes Texas 1925, articles 7995, 3265, 3266, 3267, 3268; 20 Corpus Juris, 778; 10 Ruling Case Law, title Eminent Domain, § 191; Fremont, Elkhorn & Missouri Valley Railroad Co. v. Whalen, 11 Neb. 585, 10 N. W. 491; Fremont, E. & M. V. R. Co. v. Ward, 11 Neb. 597, 10 N. W. 524; O’Neill v. San Pedro, etc., Railroad, 38 Utah, 475, 114 P. 127; Buckhannon & Northern Railroad Co. v. Great Scott Coal & Coke Co., 75 W. Va. 423, 83 S. E. 1031; Mullen v. Lake Drummond Canal & Water Co., 130 N. C. 503, 41 S. E. 1027, 1030, 61 L. R. A. 833.

The plaintiffs in the trial court brought separate suits against the levee district for damages to certain lands appropriated without their consent ánd damages to other land appropriated by the district for the purpose of using same as a floodway in carrying out the plan of reclamation and for value of certain cotton destroyed belonging to some of the plaintiffs. Plaintiffs alleged, in substance, that the levee district was created under the levee improvement district laws of this state; that the plan of reclamation prepared by the district was impractical and unskillfully planned; that the district undertook, through construction of levees and ditches, to divert the flood waters of Cedar, Walnut, and Turkey creeks, .tributaries of the Trinity river, from their accustomed channels and divert same in a new channel across valleys and through hills into the Trinity river, and also to divert the waters of Trinity river in a similar manner from its natural channel into a different channel; that in doing so, the district stopped up the old channels of said streams and restricted their flood waters to narrower channels, holding the water at a higher level and at a reduced fall, thus causing the flood waters to overflow the lands of claimants, not theretofore overflowed, and to cause the waters to stand upon such land for a much longer period than they did before the construction of the improvements embraced within the plan of reclamation.

J. Frank Williams, who did not ask for cotton damages because his land was not in cultivation, among other things alleged that the levee district took without compensation or without his consent, for the purpose of plao ing thereon its levee, 4.1 acres of land and that the district never condemned same nor. acquired it in any way as required by law, and in addition to taking his -land for levee purposes, damaged his other land. J. B. Lin-der alleged that the entire waters of the Turkey creek basin were brought across through the hills in an unnatural way through a ditch over his land, which was out of the district, and dumped into the Walnut and Cedar creek basins, and that this was done without his consent or permission, and in some instances dug the ditch between the improvements situated on his land and in doing this appropriated 14.2 acres of land for levee and ditch purposes. H. L. Flagg alleged that the district, without his consent or permission, and without paying him anything therefor, took approximately 10 acres of his land upon which to dig a ditch and brought great quantities of water from an unnatural source which greatly damaged his other land. •

The levee district, subject to a plea in abatement, filed a general demurrer and certain special exceptions. We will notice the exceptions later. It further answered that it was created under the provisions of articles 7972 to 8042, R. S. It further alleged that commissioners of appraisement heard all claims for damages of those persons interested and by those believing themselves to be damáged and, after hearing the testimony of the witnesses, did on the 19th day of April, 1926, file their decree to the effect that plaintiffs and each of them in this cause had not and would not sustain any damage to his or their property by reason of the carrying out of the plan of reclamation. It further alleged: “Defendant now further shows to the Court that it has proceeded with its work and improvements, looking toward the reclamation of land heretofore overflowed and rendered unfit for cultivation, and that it has proceeded in strict conformity with the said plan of reclamation, and respectfully shows to the Court that it has not, is not now, and will not, by carrying out said plan, be guilty of any act or acts of negligence, faulty construction, or unskillful and unscientific trade to cause any damage of any kind or character to the lands of the plaintiff herein.”

In the first place, no exceptions raising the foregoing issue were leveled at the petition filed by plaintiff's and no objections were made or exceptions reserved to the introduction of any testimony touching this point. Therefore this question is not properly before the appellate courts for decision. Collins v. Panhandle National Bank, 75 Tex. 255, 11 S. W. 1053; Hausmann v. Railway Co. (Tfex. Civ. App.) 82 S. W. 1052 (Writ denied). In the second place, the rule announced in the foregoing decisions by the courts of this state pertain to proceedings under the eminent domain statutes. Title 52, article 3264 et seq., R. S. 1925. There is no pretense made that the levee district ever undertook to comply with the requirements of the eminent domain statutes. And in the third place, this issue was raised by the pleadings filed by the dis-triet as well as by the evidence introduced in support thereof. 3 Texas Juris, § 731.

It is undisputed that whatever steps were .taken by the levee district to condemn the lands belonging to plaintiffs were taken under the provisions of articles 7972 to 80-12. Prior to the enactment of this statute the Legislature had invariably given these districts the right of eminent domain as prescribed by the eminent domain statutes with reference to the right of railroads to condemn property. This continued to be the policy of the Legislature until the articles under consideration were enacted. These articles provide an entirely different method of procedure with respect to ascertaining the amount of damages to property to carry out the needs and purposes of levee districts. They provide in detail the steps to be taken by levee districts to condemn and appropriate land. Article 7991 provides for the appointment of three disinterested commissioners and defines their qualifications. Article 7993, among other things, provides that “said commissioners shall proceed to view the lands within such district, and all other lands which will be affected by the plan of reclamation for such district if carried out * * ⅜ and all such lands within or without the district as may be acquired under the provision of this Act for any purpose connected with or incident to the fully carrying out of the plan of reclamation; they shall assess the amounts of benefits and all damages, if any,” etc. The law further provides, “and the failure of said commissioners of appraisement to return damages to any tract of land within or without the district shall be deemed a finding that no damage will be done to that tract.” Article 7995 also provides that “the findings of the commissioners as to benefits shall be final and conclusive” and “any person, or the board of supervisors of such levee district, may appeal from the decree of the appraisers assessing or refusing to assess damages or fixing the value of right of way; the only questions to be considered on such appeal shall be whether just compensation has been allowed for property, taken or whether property damages have been allowed for property injured or whether any damages are recoverable at all.” It further provides that “the trial in the district .court shall be do novo and proceedings shall be in accordance with the laws of this State in suit for damages.” The law further provides: “No appeal shall delay the prosecution of the work, but upon payment by the district supervisors to the district clerk the amount of damages awarded by the commissioners of appraisement, cmd upon the district malc-ing bond to pay to the oioner of any further amount that may be awarded him upon such appeal, title to such property so condemned shall thereupon vest in the district cmd it shall be entitled to immediate possession thereof.” The law further provides: “No person owning or having any interest in any land in any county in which copy of the plan of reclamation has been filed and notice published of the hearing before the commissioners of appraisement, who has failed to file claim for damages as above provided, or who has failed to file objection to the damages assessed by the commissioners against his land,, or who having filed such claim or objection, has failed to appeal from an adverse ruling upon such claim or objection, shall thereafter be heard to claim any damages from the levee district or its supervisors, officers or agents by reason of the carrying out of the plan of reclamation.” (Italics ours.) The law further provides that adequate compensation shall be made to the owners of any property so taken, damaged, or destroyed for such purposes (see article 7981).

It is alleged by the district that the commissioners of appraisement had a hearing and on April 19,1926, refused to award plaintiffs anything. The decree of the commissioners of appraisement, if ever made, was not introduced in evidence and therefore is not incorporated in this record. It is undisputed that the district undertook to carry out its plan of reclamation in January and Eebruary, 1926, even before a hearing was had 'before the commissioners of appraisement in April, 1926. It is undisputed that the district took more than 14 acres of Lin-der’s farm land for the purpose of constructing a ditch and placing levees thereon without his consent and without paying anything therefor; that it took 10 acres or more of Elagg’s land without his consent and for which it paid him nothing or offered to pay him anything and used it for its purposes; that Williams claims that it took more than 4 acres of his land for the purpose of placing a levee thereon without his consent and that the district has never offered to pay these plaintiffs or either of them anything for the land taken or damaged in carrying out its plan of reclamation. It is also undisputed that thp district had supplemental plans prepared and approved upon which no hearing was ever had as required by law; that the district never made a bond of any kind to the plaintiffs or either of them as required by this act.

When the language used in this act is construed in the light of the past history of the general eminent domain statutes of this state, we think it becomes plain that it was intended to get away from the old rule announced by the courts with reference to that statute, and to adopt a new procedure with respect to such matters. That the act was intended to evade the old rule and to relieve districts of uncertainty, litigation, and expense, is recognized by the district, and we quote from the 'brief filed by the attorneys for the levee district. In that brief the following language is used: “It will be noted that it is clearly the purpose of this Act to fix all damages prior to the beginning of the work and there is a sound reason for this because it is necessary for the levee district to know the cost before undertaking the work, else the property values upon which taxes are to be levied might not be sufficient to pay the costs in damages and therefore the work would be impracticable. It will be further noted that the Commissioners of Ap-praisement go further and have greater latitude than where there is condemnation for rights of way for Railroads. In condemnation for rights of way for railroads it is limited to the land taken, and damages to the other land owned by the individual whose land is taken and does not include damages of other parties whose land may be affected by the Railroad, but none of whose land is taken; whereas, in the case of levee district the Commissioners of Appraisement fix the value of the land taken and damages to all land affected in carrying out the Plan of Reclamation. * * * ”

Therefore, the rules announced in the authorities cited by the levee district are not applicable in this case.

Furthermore, the decisions hold that no rule is better established in this state than condemnation proceedings are purely statutory and must be strictly complied with. It is undisputed that the district dug its ditches and constructed its levees and diverted water, as above stated, without offering to pay the owners of the land so taken and damaged or to make a bond in compliance with the plain letter of the statute to compensate the owners in case of any award against the district upon appeal. The burden was upon the district to show that it had complied with the law. This was not done. Under the state of this record, the district was a naked trespasser and it was proper for the trial court to estimate the value of the land taken or damaged as of the date of the trial. Texas West. Ry. Co. v. Cave, 80 Tex. 137, 15 S. W. 786; San Antonio & A. P. Ry. Co. v. Ruby, 80 Tex. 172, 15 S. W. 1040; Beaumont & G. N. Ry. Co. v. Elliott (Tex. Civ. App.) 148 S. W. 1125, 1126; San Antonio & A. P. Ry. Co. v. Hunnicutt, 18 Tex. Civ. App. 310, 44 S. W. 535, 536; City of San Antonio v. Fike (Tex. Civ. App.) 211 S. W. 639, 641; Clower v. Fannin-Lamar-Delta Counties Levee District (Tex. Com. App.) 39 S.W.(2d) 831, 833. This section of the Commission, speaking through Judge Ryan in the case of Clower v. Levee District, supra, in discussing condemnation proceedings, said: “Proceedings to condemn property for public use are special in character, and their validity must depend upon a strict compliance by the condemning authority, with the law authorizing them. Parker v. Ry. Co., 84 Tex. 333, 19 S. W. 518; McIntire v. Lucker, 77 Tex. 259, 13 S. W. 1027; Cummings v. Kendall County, 7 Tex. Civ. App. 164, 26 S. W. 439; 1 Lewis, Eminent Domain (3d Ed.) § 387; 2 Cooley’s Const. Limitations (8th Ed.) ip. 1119. But, as to compensation and remedy, they should be liberally construed in favor of the property owner. 1 Lewis, Eminent Domain (3d Ed.) § 389.”

Several special exceptions were leveled at plaintiffs’ petitions upon the ground that it was a direct attack upon the plan of reclamation of said district and not in accord with article 8034, supra. This precise contention was overruled in the case of Wilmarth v. Reagan (Tex. Com. App.) 242 S. W. 726, 730.

The Court of Civil Appeals correctly held that the trial court did not err in consolidating these suits. Article 7995, among other things, provides that after an appeal has been made from the decree of the commissioners of appraisement to the district court that “such appeals may be consolidated in the district court.” The trial judge, in the exercise of his discretion, consolidated the suits. The suits were tried before the court without a jury and there is nothing in this record to show that any harm has been done the litigants by consolidating these suits. This holding' is in line with the rule announced by the decisions that it is the public policy of this state to avoid a multiplicity of suits. Lawther Grain Co. v. Winniford (Tex. Com. App.) 249 S. W. 195; Bolton v. City of DeLeon (Tex. Civ. App.) 283 S. W. 213.

It is contended that the trial court erred in allowing some of the plaintiffs certain sums for crop damages. This contention was raised by special exceptions to the petition as well as by reserving bills of exception to the testimony introduced. While the statute is broad and provides for the consolidation of suits with a view of reducing the expenses incident to litigation and to avoid a multiplicity of suits, yet we are constrained to construe the statute limiting the recovery to damages to land. The items for crop damages were found separately and independently of the items of land damages found by the trial court in favor of the respective plaintiffs, and can be remitted without disturbing the other parts of the judgment. To this extent the motion for rehearing will be sustained. Plaintiffs in error offer here, as they did in the Court of Civil Appeals, that if the court hold that the items of crop damages allowed by the trial court in its judgment be improper that the parties will remit all crop damages, .together with interest thereon as set out in the judgment of the trial court.

We therefore recommend: (1) That the judgment of the Court of Civil Appeals be reversed; and (2) that the judgment for crop damages allowed by the trial court as follows: To H. L. Flagg $515, to J. B. Linder $1,030, to J. W. Bartlett $1,522, to Mrs. J. L. Evans $412, and to Mrs. Adelle Evans $600, be reversed and hereby rendered in favor of defendant in error, and that each of the parties take nothing by reason of said judgment allowing them said items for crop damages as above stated, but that the judgment of the trial court in all other respects be affirmed.

CURETON, Chief Justice.

Motion for rehearing in part granted and in part overruled, and judgment entered as recommended by the Commission in the opinion on motion for rehearing.