author: GREENHILL, Justice.

text:
    JESSEN ASSOCIATES, INC., Relator, v. Bob BULLOCK, Comptroller of Public Accounts, Respondent.
    No. B-5577.
    Supreme Court of Texas.
    Dec. 17, 1975.
    Rehearing Denied Jan. 21, 1976.

      Baker & Botts, Thomas M. Phillips, Stan McLelland and Robert P. Wright, Houston, for relator.
    John L. Hill, Atty. Gen., C. Robert Heath, Asst. Atty. Gen., Austin, for respondent.
   GREENHILL, Justice.

This suit is an original petition for writ of mandamus to compel the Respondent Bob Bullock, Comptroller of Public Accounts, to issue a warrant on the State Treasury for $2,590.25 for architectural services performed by Relator, Jessen Associates, Inc., for The University of Texas at Austin.

It is our conclusion that the warrant should be issued. In reaching this conclusion, we hold that a rider to the latest General Appropriations Act was not subject to the veto of the Governor. The Governor has the power to veto an entire appropriations bill; but his power to veto part of an appropriations bill is limited to vetoing “items of appropriation.” This rider, authorizing the construction of certain enumerated projects without the consent of the College Coordinating Board, was not intended by the Legislature to appropriate funds, and therefore was not an “item of appropriation” which was subject to veto apart from the remainder of the bill. We also hold that the rider did not violate the constitutional requirement that bills contain no more than one subject, since the rider related to, and was germane to, the subject of the General Appropriations Act. The reasons for these holdings are discussed more fully below.

The basis for this controversy originates in Senate Bill 706 enacted by the last Legislature. Section 3 of that bill amends Section 61.058 of the Texas Education Code to read in part as follows:

“To assure efficient use of construction funds and the orderly development of physical plants to accommodate projected college student enrollments, the board [the Coordinating Board, Texas College and University System] shall:
“(8) approve or disapprove all new construction and repair and rehabilitation of all buildings and facilities at institutions of higher education financed from any source other than ad valorem tax receipts of the public junior colleges, provided that:
(D) the requirement of approval or disapproval by the board does not apply to any new construction or major repair and rehabilitation project that is specifically approved by the legislature.”

Several days after the passage of Senate Bill 706, the Legislature approved the General Appropriations Act for the 1975-1977 biennium. In that Act, following the schedule of appropriations for The University of Texas at Austin, there appears a rider which contains three sections. The rider reads:

“The Board of Regents of The University of Texas System is hereby authorized (1) to expend such amounts of its Permanent University Fund bond proceeds and/or other bond proceeds and such amounts of its other available moneys as may be necessary to fund one or more of the following projects either in whole or in part, (2) to accept gifts, grants, and matching grants to fund any one or more of such projects either in whole or in part, and (3) to acquire, construct, alter, add to, repair, rehabilitate, equip and/or furnish any one or more of such projects for The University of Texas at Austin: (1) Alterations and Additions to Law School . . .”

Other projects not relevant here are also listed.

It is the position of Jessen Associates (hereinafter referred to as Jessen) that the specific legislative approval required in the College Coordinating Board statute set out above was given, in as much as the rider states that “The Board of Regents . is hereby authorized.” As indicated, we agree that it did constitute such approval.

By proclamation dated June 22, 1975, the Governor attempted to veto this rider to the General Appropriations Act.

Notwithstanding the Governor’s action, the Board of Regents of The University of Texas System approved a project for the construction of alterations and additions to The University of Texas School of Law, and entered into a written contract with Jessen. Jessen made certain preliminary studies and cost estimates with regard to the construction project, and submitted its claim for payment in the amount of $2,590.25. This amount was approved by the Board of Regents, and a voucher was issued directing the Comptroller of Public Accounts to issue a warrant in payment of the claim.

The voucher was submitted to Respondent Bullock, who declined to issue the warrant. In a letter to Jessen and the Chairman of the Board of Regents, Bullock gave the following reasons for his action: (1) the proposed construction project had not been approved by the Coordinating Board, as required by Article 61.058(8) of the Texas Education Code; (2) the Governor had vetoed the provision in the General Appropriations Act by which the Legislature had sought to give its approval to the project; (3) that provision is void because it constitutes “general legislation” in violation of Section 35, Article III, of the Texas Constitution; and (4) the vetoed provision did not constitute “specific approval by the legislature” as required under Section 61.-058(8)(D) of the Texas Education Code.

The constitutional provisions dealing with the Governor’s power to veto legislation are found in Article IV, Section 14 of the Texas Constitution:

“Sec. 14. Every bill which shall have passed both houses of the Legislature shall be presented to the Governor for his approval. If he approve he shall sign it; but if he disapprove it, he shall return it, with his objections . . . . If any bill presented to the Governor contains several items of appropriation he may object to one or more of such items, and approve the other portion of the bill. In such case he shall append to the bill, at the time of signing it, a statement of the items to which he objects, and no item so objected to shall take effect.”

This language is the sole source of the Governor’s authority to veto legislation. His veto power is a legislative function and not an executive function, and it exists only to the extent granted by the Constitution. To the extent that the Governor’s actions exceed this authority, they have no effect. Fulmore v. Lane, 104 Tex. 499, 140 S.W. 405 (1911). Therefore the first question for our consideration is whether the Governor’s attempted veto was permitted under the constitutional language set out above.

The case of Fulmore v. Lane, supra, is a leading Texas authority on the veto power of the Governor. That case, like this one, involved an attempt to veto a portion of a General Appropriations Act. In the opinion by Justice Dibrell, there appears the following discussion:

The executive veto power is to be found alone in section 14, art. 4, of the Constitution of this state. By that section he is authorized to disapprove any bill in whole, or, if a bill contains several items of appropriation, he is authorized to object to one or more of such items. Nowhere in the Constitution is the authority given the Governor to approve in part and disapprove in part a bill. The only additional authority to disapproving a bill in whole is that given to object to an item or items, where a bill contains several items of appropriation. It follows conclusively that where the veto power is attempted to be exercised to object to a paragraph or portion of a bill other than an item or items, or to language qualifying an appropriation or directing the method of its uses, he exceeds the constitutional authority vested in him, and his objection to such paragraph, or portion of a bill, or language qualifying an appropriation, or directing the method of its use, becomes noneffective. 140 S.W. at 412.

Consequently, if the provision which the Governor attempted to veto in the present case is not an item of appropriation, but is merely language qualifying an appropriation, or directing its uses, then the veto is of no effect. See also Texas Attorney General Opinion No. V-1196(1951).

There is no Texas authority other than the Fulmore case which deals with the question of what is meant by “item of appropriation.” However, that term has been discussed by courts in other jurisdictions with similar constitutional provisions. In Bengzon v. Secretary of Justice, 299 U.S. 410, 57 S.Ct. 252, 81 L.Ed. 312 (1936), the Supreme Court of the United States held that such term “obviously means an item which in itself is a specific appropriation of money . . The Supreme Court of Florida, in Green v. Rawls, 122 So.2d 10 (Fla.1960), made its determination based on the presence of two factors. Where a certain provision designates a specified purpose and the amount to be used therefor, it is an item of appropriation even though it may be included in a larger, more general item. In Commonwealth v. Dodson, 176 Va. 281, 11 S.E.2d 120 (1940), the following definition is given:

An item in an appropriation bill is an indivisible sum of money dedicated to a stated purpose. It is something different from a provision or condition, and where conditions are attached, they must be observed; where none are attached, none may be added.

It can be said then that the term “item of appropriation” contemplates the setting aside or dedicating of funds for a specified purpose. This is to be distinguished from language which qualifies or directs the use of appropriated funds or which is merely incidental to an appropriation. Language of the latter sort is clearly not subject to veto. Fulmore v. Lane, supra; Bengzon v. Secretary of Justice, supra; Fairfield v. Foster, 25 Ariz. 146, 214 P. 319 (1923); Turner v. Iowa State Highway Comm’n, 186 N.W.2d 141 (Iowa 1971); State v. Holder, 76 Miss. 48, 23 So. 643 (1898); Commonwealth v. Dodson, supra; Texas Attorney General Opinion Nos. M-1199 (1972), V-1196 (1951).

It is clear that subdivisions (2) and (3) of the rider here in question do not set aside funds. They only authorize the Board of Regents to accept gifts and grants and to acquire and construct the enumerated projects. Therefore, if the rider contains any language of appropriation, it must be found in subdivision (1), which authorizes the Regents “to expend such amounts of its Permanent University Fund bond proceeds and/or other bond proceeds and such amounts of its other available moneys as may be necessary.” Although this is not the traditional language of appropriation, it might be construed as setting aside funds under certain circumstances.

A fundamental rule in the construction of statutes is to ascertain and give effect to the intent of the Legislature. Calvert v. Texas Pipe Line Co., 517 S.W.2d 777 (Tex.1974); Flowers v. Dempsey-Tegeler & Co., 472 S.W.2d 112 (Tex.1971). This rule applies also in determining what constitutes an item of appropriation. See Fulmore v. Lane, supra. If the language is intended to set aside funds for a specified purpose, it is an “item of appropriation” and is therefore subject to veto by the Governor. Otherwise, the Governor must veto the entire bill or let the objectionable part stand.

Of special significance in determining the legislative intent in this case is the fact that the funds mentioned in subdivision (1) of the rider are appropriated elsewhere in the General Appropriations Act. By its terms, the rider involves only bond proceeds and other available moneys. Clearly such language cannot be construed as making an independent appropriation, but refers only to funds which have otherwise been made available.

The mere fact that the funds have been appropriated elsewhere does not preclude the construction that a provision is an item of appropriation, but it may raise questions as to what the Legislature intended. It is generally presumed that every word in a statute is used for a purpose. Perkins v. State, 367 S.W.2d 140 (Tex.1963); Eddins-Walcher Butane Co. v. Calvert, 156 Tex. 587, 298 S.W.2d 93 (1957). In light of this rule of construction, should we conclude that this rider was intended merely to reappropriate funds appropriated elsewhere? If no other purpose was evident, such a conclusion might be required. However, an examination of the laws bearing on the same subject reveal a different intent, and that intent should be given effect.

When the rider is read in connection with the requirements of Section 61.-058, Texas Education Code, its purpose becomes clear. What the Legislature intended was to give its approval to the enumerated projects, and thereby eliminate the need for approval by the Coordinating Board. There was no intent for the language of the rider to set aside funds for these projects, because such funds were appropriated elsewhere. The rider was intended merely to direct the use of those funds by giving express legislative approval to the projects specified.

Consequently, the rider cannot be construed as an “item of appropriation” as that term is used in the Constitution. The Governor, therefore, exceeded the power granted to him in the Constitution in attempting to veto the rider; and his actions therefore have no effect.

The Comptroller argues that if the rider is not an item of appropriation (which we have held it is not), then it is “general legislation” and therefore violates Article III, Section 35 of the Texas Constitution. The relevant portions of that section read as follows:

No bill, (except general appropriations bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title.

Despite the apparent exception for general appropriations bills, it has been held that they too must be limited to a single subject, which is the appropriation of funds to be paid from the State Treasury. Moore v. Sheppard, 144 Tex. 537, 192 S.W.2d 599 (1946); Linden v. Finley, 92 Tex. 451, 49 S.W. 578 (1899). See also Texas Attorney General Opinion No. V-1254 (1951).

In determining whether a bill includes more than one subject, both the constitutional provision and the statute under consideration are to be liberally construed in favor of constitutionality. Robinson v. Hill, 507 S.W.2d 521 (Tex.1974); Central Education Agency v. Independent School District of City of El Paso, 152 Tex. 56, 254

S.W.2d 357 (1958). The statute will be upheld where its provisions relate, directly or indirectly, to the same general subject, and have a mutual connection. See Robinson v. Hill, supra, and cases cited therein. Or, stated differently, the provision is valid where it is germane to the subject of the bill. Moore v. Sheppard, supra; Linden v. Finley, supra; Missouri-K. T. R. Co. v. Rockwall County Levee Improvement District No. 3, 117 Tex. 34, 297 S.W. 206 (1927).

However the test is stated, subdivision (1) of the rider is clearly not invalid. In authorizing the expenditure of funds, it relates to the appropriation of funds. Likewise, it is germane to that subject. This subdivision merely directs the expenditure of appropriated funds, and is therefore permissible under Article III, Section 35, of the Constitution. Conley v. Daughters of the Republic, 106 Tex. 80, 156 S.W. 197 (1913).

On the other hand, the necessary relationship between subdivisions (2) and (3) and the subject of the General Appropriations Act is not so evident. Read apart from subdivision (1), these subdivisions might embrace subjects impermissible in a general appropriations bill. This is especially true of subdivision (3). However, statutory provisions are not to be isolated from the surrounding language and construed apart from their context. Calvert v. Texas Pipe Line Co., 517 S.W.2d 777 (1974); Short v. W. T. Carter & Brother, 133 Tex. 202, 126 S.W.2d 953 (1939). When read as a whole, as relevant here, the rest of the rider does no more than subdivision (1). It merely directs the use of appropriated funds by expressly approving their expenditure on certain construction projects. Therefore, the rider does not violate the provisions of Article III, Section 35, of the Constitution.

In his letter setting forth the reasons for refusing to issue the warrant, Bullock states that the rider did not constitute “specific approval of the Legislature” as required under Section 61.058(8)(D) of the Texas Education Code. We cannot agree with this contention. As discussed above, approval under this section of the Education Code was the manifest purpose of the rider. In addition, a review of legislative practice under a similar provision shows clearly that “prior approval of the Legislature” has been given by rider to the General Appropriations Act similar in form to the one in question.

In 1958, Article VII, Section 18, of the State Constitution was amended by adding the following limitation to the authority of the Board of Regents to issue negotiable bonds and notes for the purpose of constructing, equipping or acquiring permanent improvements:

“. . . provided, however, no building or other permanent improvement shall be acquired or constructed hereunder for use by any institution of The University of Texas System, except at . The Main University and Texas Western College, without the prior approval of the Legislature or of such agency as may be authorized by the Legislature to grant such approval.”

The very next General Appropriations Act passed after the effective date of this amendment contained a rider authorizing certain construction projects at The University of Texas Medical Branch at Galveston. Acts 56th Leg., 3rd C.S. 1959, ch. 73, art. IV, pp. 676-77. As in this case, the rider authorized the Board of Regents to construct certain projects and to accept gifts and grants for other projects. Riders containing similar language have been included in each of the succeeding ten General Appropriations Acts.

In reliance on these riders, the Board of Regents has undertaken numerous construction projects and has caused vast sums of money to be expended. It must be presumed that the Legislature, in permitting this practice to continue, has approved the construction placed on these riders by the Board of Regents. Consequently, by enacting the provisions of Senate Bill 706 in substantially the same form as the 1958 constitutional amendment, the Legislature must have contemplated that a similar construction would be given, and that riders to the General Appropriations Acts would constitute the requisite “legislative approval.” Federal Crude Oil Co. v. Yount-Lee Oil Co., 122 Tex. 21, 52 S.W.2d 56 (1932); Oden v. Gates, 119 Tex. 76, 24 S.W.2d 381 (1930).

Further evidence that the rider was intended to give legislative approval to the enumerated projects is evident from an examination of a proposed rider to Article IV of the General Appropriations Act. Contained in Senate Concurrent Resolution 109, the proposed rider read as follows:

“Notwithstanding the specific listing of approval of facilities construction projects following appropriations to various component units of The University of Texas System, The Texas A&M University System, East Texas State University, University of Houston, Sam Houston State University, and Stephen F. Austin State University, such listing shall not constitute approval by the Legislature as contemplated by Senate Bill 706, Sixty-fourth Legislature.” S.C.R. 109, 64th Legislature (1975), ch. IV, § 34, at 86.

This amendment was rejected by the Conference Committee considering the General Appropriations Bill, and was therefore not a part of the final version of that bill. That this amendment was proposed at all and rejected is an indication that the rider under consideration was viewed as legislative approval under the terms of Senate Bill 706.

When the General Appropriations Act was enrolled and filed with the Secretary of State, it contained the language of the proposed amendment set out above. However, that language was marked through by a wavy line of blue ink. It is the Comptroller’s position that this fact raises questions as to the effect to be given the marked-through language, and that his duty is not clear and free from doubt. He therefore contends that the remedy of mandamus ought not to lie.

Generally speaking, mandamus will lie only where the duty to act is clear and there is no disputed question of fact. Cobra Oil & Gas Corporation v. Sadler, 447 S.W.2d 887 (Tex.1970); Williams v. Pitts, 151 Tex. 408, 251 S.W.2d 148 (1952); Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138 (1939). These requirements were satisfied here by the affidavit of Thomas M. Keel, the Director of the Legislative Budget Board. Mr. Keel’s affidavit, which is not disputed, explained that the rejected amendment had not been physically removed from the enrolled copy of the bill due to the critical shortage of time before the adjournment of the Legislature. The affidavit leaves no doubt that the proposed amendment was in fact rejected by the Conference Committee and did not become a part of the bill as passed.

For the reasons discussed above, the construction project for the law school on the campus of The University of Texas at Austin was properly authorized. The voucher issued by The University of Texas at Austin was therefore valid and Jessen is entitled to payment. We assume that the Comptroller will comply with this opinion and issue the warrant in question. In the event he fails to do so, a writ of mandamus will issue. The petition for writ of mandamus is conditionally granted.

      . This rider, set out in part on page 2 of this opinion, is found in Text of Conference Committee Reports, S.B. 52, art. IV, at IV-29. The text of the General Appropriations Act, Acts 64th Leg., R.S.1975, ch. 743, p. 2416, has not yet been printed in Vernon’s Texas Session Law Service, Laws 1975, 64th Legislature. The text of that Act has been published in “Text of Conference Committee Report, S.B. 52 and Governor’s Veto Proclamation,” Supplement to Senate Journal, Sixty-fourth Legislature, Regular Session, June 2, 1975. Therefore, citations in this opinion to portions of the General Appropriations Act refer to the latter publication. All emphasis herein is added by the Court.

      . Acts 64th Leg., R.S.1975, ch. 676, p. 2055.

      . Text of Conference Committee Report, S.B. 52, art. IV, at IV-29.

      . That provision reads as follows:
      Sec. 35. No bill, (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof, as shall not be so expressed.

      . All three members of the Court wrote separate opinions in that case. Although all reached the same result, Justice Ramsey dissented in part. On motion for rehearing, Chief Justice Brown and Justice Ramsey authored additional writings. 104 Tex. 499, 140 S.W. 1082.

      . Opinions of Attorney Generals, while not binding on the judiciary, are persuasive and are entitled to consideration. Jones v. Williams, 121 Tex. 94, 45 S.W.2d 130 (1930); City of Houston v. Southern Pacific Transportation Company, 504 S.W.2d 554 (Tex.Civ.App.—Houston [14th] 1973, writ ref d n. r. e.); Bass v. Aransas County Independent School District, 389 S.W.2d 165 (Tex.Civ.App.—Corpus Christi 1965, writ refd n. r. e.).

      . The case of National Biscuit Co. v. State, 134 Tex. 293, 135 S.W.2d 687 (1940), is relied on by Respondent in this regard. However that case did not involve the veto power of the Governor. Instead, an attempted appropriation was attacked as being in violation of Section 6, Article VIII of the Constitution, which requires appropriations to be specific. The opinion in that case assumes that an appropriation was made, and deals solely with the problem of specificity. It sheds no light on what is meant by “item of appropriation.”

      . Relator’s brief sets out six areas in the General Appropriations Act which make funds available for use under the terms of the rider. These areas include (1) Section 18, Article IV, at IV-93, which appropriates the revenues from the constitutional building funds; (2) Section 18, Article V, at V-A4, which appropriates all bequests and gifts of money to State agencies; (3) Section 19, Article V, at V-44, which appropriates all federal funds received by State agencies; (4) language at IV-25 which appropriates the residue of the Available Fund allocable to the University of Texas System; (5) certain portions of the appropriations to the University of Texas at Austin, at IV-28-29, which may be used to fund certain aspects of construction projects; and (6) those funds appropriated to the University of Texas at Austin, at IV-28-29, which may be transferred from their designated use and used to fund construction projects. This list is intended only to show some possible sources of funds available for use under the terms of the rider. It should not be construed as a holding by this Court that such funds are in fact available for the construction projects, or that such funds are the only funds available. Those questions are not presented in this case.

      . In ascertaining the intent of the Legislature, all laws bearing on the same subject are to be considered and given effect. Duval Corporation v. Sadler, 407 S.W.2d 493 (Tex.1966); Wintermann v. McDonald, 129 Tex. 275, 102 S.W.2d 167 (1937).

      . E. g., Acts 57th Leg., 1st C.S. 1961, ch. 62, art. IV, pp. 404-7; Acts 63rd Leg., R.S. 1973, ch. 659, art. IV, pp. 2098, 2100-2101, 2103, 2104.


source: Caselaw Access Project

author: DENTON, Justice.

license: Public Domain

text:
    ROLLINS LEASING CORPORATION, Petitioner, v. Ernest BARKLEY, Jr., et al., Respondents.
    No. B-5275.
    Supreme Court of Texas.
    Dec. 31, 1975.
    Rehearing Denied Feb. 4, 1976.
    Gary, Thomasson, Hall & Marks, John C. Holmgreen, Jr., Corpus Christi, for petitioner.
    Meredith & Donnell, M. W. Meredith, Jr. and Walter Clay Cooke, Corpus Christi, for respondents.
   DENTON, Justice.

Rollins Leasing Corporation leased, to A&A Meat Company, a truck-tractor vehicle which was subsequently destroyed in a collision with a vehicle owned by defendant Barkley. A&A Meat, and its employee driver James J. Casey, filed suit against Barkley and others for personal injuries and property damage sustained in that collision. Rollins Leasing Corporation intervened in this suit to recover damages from the defendants for the destruction and loss of use of its vehicle. In answer to special issues the jury found that the defendant was negligent and that Casey was contributorily negligent. Both such acts were found to be the proximate cause of the accident. The trial court entered judgment for defendants and a take nothing judgment against Rollins Leasing Corporation.

The plaintiffs appealed separately and only Rollins is before us now. The court of civil appeals affirmed the judgment as to Rollins, holding that a bailment situation existed, that the contributory negligence of the bailee, A&A Meat, was imputed to the bailor, Rollins, and that Rollins was therefore precluded from recovering from a negligent third party. 520 S.W.2d 539. We reverse the judgment of the court of civil appeals and render judgment for the petitioner.

Rollins, being in the equipment rental business, leased a truck-tractor unit to A&A Meat for use in its business operations. On May 6, 1971, while the vehicle was being operated by an A&A Meat employee, James J. Casey, a collision occurred with a truck owned by Barkley. Both Casey and Maxi-milliano Garza, the employee-operator of the Barkley truck, were acting within the scope of their employment when the accident occurred.

At trial Rollins and the defendants stipulated that the truck-tractor vehicle was totally destroyed by the accident. It was further stipulated that the vehicle had a market value of $18,000 prior to the collision and a market value of $3000 immediately after the collision. Because of the contributory negligence of A&A Meat, through its employee Casey, the courts below have held that Rollins is barred from recovering for the destruction of its vehicle. The question before us is whether Rollins is to be denied its stipulated damages by the imputation to it of its bailee’s negligent conduct in the absence of any evidence that Rollins had a right to control the bailee or its agent.

This Court has uniformly held that lease arrangements of this nature create a bailment situation wherein A&A Meat is the bailee and Rollins, the plaintiff, is the bail- or. Historically the rule in this State has been that when contributory negligence is proven against a bailee such contributory negligence is imputed to the bailor and prevents the bailor from recovering against a negligent third party. Rose v. Baker, 138 Tex. 554, 160 S.W.2d 515 (1942); Weir v. Petty, 355 S.W.2d 192 (Tex.Civ.App.—Amarillo 1962, writ ref’d); Langford Motor Co. v. McClung Construction Company, Inc., 46 S.W.2d 388 (Tex.Civ.App.—Eastland 1932, writ ref'd).

This approach was first enunciated in Texas by the Court in Texas & Pacific Ry. Co. v. Tankersley, 63 Tex. 57 (1885). The Court in that case adopted the then majority rule and supported the imputation of contributory negligence by analogizing the relationship of bailee and bailor to that of agent and principal. Although all other states have now abandoned this rule, Texas still imputes the contributory negligence of the bailee to the bailor on the basis of stare decisis. As early as 1932, in the Langford Motor case, the courts in this State recognized that Tankersley no longer represented the majority rule. Professor Prosser, a recognized scholar in the field of torts, noted the demise of “imputed contributory negligence” in the following manner.

Until the year 1897, nearly all courts imputed the contributory negligence of a bailee to his bailor, in an action by the latter for damage to the chattel inflicted by the defendant. The basis for the rule was obscure; but it appears to have rested upon the fact that the bailor had selected the bailee, that either might sue the tortfeasor and recover, and therefore it was assumed that there was an identity of their interests, and so the rule in the two suits should be the same. This is still the law in Texas; but with modern acceptance of the interests of the bailor and the bailee as quite separate and distinct, the earlier decisions have been overruled everywhere else. It is now held that in the absence of statute the bailment is not sufficient in itself to impute the contributory negligence of the bailee, and that the bailor will be charged with such negligence only where there are additional factors which would make him liable to a third person as a defendant. The negligence of the bailee will bar his recovery for any damage to his own interest, but will not prevent a recovery by the bailor. W. Prosser, Law of Torts § 74, page 491 (4th ed. 1971).

Since Tankersley there have been several strong and well reasoned dissents by members of this Court as to the continued efficacy of this rule. See, Langford Motor Co. v. McClung Const. Co., Inc., supra; Rose v. Baker, supra. In Rose, Chief Justice Alexander, dissenting, stated that:

I am not in accord with the holding in the majority opinion that contributory negligence on the part of the bailee should defeat the right of the bailor to recover damages from a third party for injuries to the bailor’s property in the hands of the bailee. The bailee in this instance was not the agent or the servant of the bailor. He was employed to pack and transport the bailor’s property in such manner as he thought proper. The bailee was therefore an independent contractor, and the relation of principal and agent, or master and servant, was not involved. Under these circumstances, the bailor should not be held responsible for the contributory negligence of the bailee. 160 S.W.2d at 517.

Chief Justice Alexander’s position adopts in effect the same rule adopted by the majority of courts in rejecting the doctrine of “imputed contributory negligence.” Simply put, the rule recognizes that if the bailor cannot be held vicariously liable for the negligence of a bailee in custody of his chattel, then neither can the contributory negligence of that bailee be imputed to him when he is the plaintiff seeking to recover from a negligent third party. In Bertrand v. Mutual Motor Co., 38 S.W.2d 417 (Tex.Civ.App.—Eastland 1931, writ ref’d), we approved the rule that the bailor of an automobile, who had no control over its operation by the bailee, was not liable to a third party for injuries arising from the bailee’s negligence.

This test recognizes that in the absence of some type of control relationship, there is no more reason in logic to automatically impute contributory negligence than there is to so impute primary negligence. Professor Prosser states it as follows:

Except for vestigial remnants which are at most moribund historical survivals, “imputed contributory negligence” in its own right has now disappeared. The re-suit at which the courts have arrived is that the plaintiff will never be barred fr'om recovery by the negligence of a third person unless the relation between them is such that the plaintiff would be vicariously liable as a defendant to another who might be injured. W. Prosser, Law of Torts, § 74, page 488 (4th ed. 1971). Cf., Shoemaker v. Estate of Whistler, 513 S.W.2d 10 (Tex.1974).

The bailment in this case is not based on an agency or control relationship between Rollins and A&A Meat. In fact any such control relationship is specifically excluded and denied by the terms of their contract. The previous rule allowing the imputation of contributory negligence by a bailee to a bailor is rejected and the following cases holding to the contrary are hereby overruled: Rose v. Baker, 138 Tex. 554, 160 S.W.2d 515 (1942); Texas & Pacific Ry. Co. v. Tankersley, 63 Tex. 57 (1885); Weir v. Petty, 355 S.W.2d 192 (Tex.Civ.App.—Amarillo 1962, writ ref’d); Langford Motor Co. v. McClung Construction Company, Inc., 46 S.W.2d 388 (Tex.Civ.App.—Eastland 1932, writ ref’d). We, therefore, hold Rollins is not barred from recovering the value of its totally destroyed truck-tractor because of the contributory negligence of its bailee.

Accordingly the judgment of the court of civil appeals is reversed. In accordance with the stipulation of the parties as to the damages to the petitioner’s truck-tractor, judgment is here rendered that petitioner Rollins Leasing Corporation do have and recover from respondents Ernest Barkley, Jr., et al., the sum of $15,000, together with interest from date of the trial court judgment.

      . See, Imputed Contributory Negligence in Bailments, 14 Baylor L.Rev. 192 (1962), for a discussion on the background of this rule and citation to states which have now abandoned it; 8 C.J.S. Bailments, § 56(1), p. 576; 2 Harper & James, The Law of Torts § 23.6 p. 1273 (1956); 8 Am.Jur.2d Bailments § 253 p. 1139.


author:
DAVIS, Commissioner.

     ROBERTS, Judge. MORRISON, Judge

text:
    John Willis WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 49781.
    Court of Criminal Appeals of Texas.
    Sept. 17, 1975.
    On Rehearing Jan. 21, 1976.

      Roy L. Merrill, Jr. and Buford A. Cates, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., and James B. Scott, Bill Booth and Winfield Scott, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for robbery with firearms. Punishment was assessed by the jury at forty years.

Edwina Moore, an employee of the O.K. Super Market on Colonial Street in Dallas on February 17, 1970, and George Ray, manager of the store, made an in-court identification of appellant as being one of four men who robbed them at gunpoint of cash and money orders while they were working in the store on said date. The record reflects that trial occurred in January, 1974.

In three of appellant’s contentions, it is urged that the court erred in admitting hearsay and bolstering testimony that witnesses Moore and Ray made out-of-court identifications of appellant.

Appellant’s contentions are directed to the testimony of Officer Sewell, who testified that Moore and Ray identified and made a “positive identification” of appellant as one of the robbers when he exhibited pictures to them in March, 1970.

Appellant relies on Lyons v. State, Tex.Cr.App., 388 S.W.2d 950, where it was held that a witness’ unimpeached identification testimony cannot be bolstered by corroborating the fact of identification.

In the first of this series of grounds, appellant points to the following testimony of Officer Sewell:

“Q. And do you recall the names of the three persons she [Miss Moore] identified?
“A. Richard Bell.
“MR. QUINN: Your Honor, we are going to object again, the pictures would be the best evidence. The evidence shows that there are no writings whatsoever on the pictures, and we, therefore object to any testimony unless the pictures are shown in the courtroom.
“THE COURT: Overruled.”

The ground of error now urged does not comport with the objection at trial. Nothing is presented for review. Campbell v. State, Tex.Cr.App., 492 S.W.2d 956; Rawlinson v. State, Tex.Cr.App., 487 S.W.2d 341; Sloan v. State, Tex.Cr.App., 515 S.W.2d 913. Another objection is pointed to by appellant where the question was asked, “Who was she able to identify?” and the record reflects that the court sustained the objection and no other relief was requested by appellant. Appellant failing to pursue his objection to an adverse ruling leaves nothing for review. Gipson v. State, Tex.Cr.App., 503 S.W.2d 796; Newman v. State, Tex.Cr.App., 501 S.W.2d 94.

In the next in this series of appellant’s contentions, appellant directs our attention to the following testimony elicited from Officer Sewell on direct examination:

“MR. BOOTH: Was this identification of John Willis Williams [appellant] a positive identification?
“THE WITNESS: Yes, sir, it was.
“MR. QUINN: Your Honor, that calls for complete hearsay as to the defendant.
“THE COURT: Sustained.
“MR. QUINN: The picture would be the best evidence, and we ask that the jury be instructed not to consider the testimony-
“THE COURT: You will not consider the question for any purpose in your deliberations.
“MR. QUINN: And we ask again for a mistrial on the basis of the implications of the questions and the answers.
“THE COURT: Denied.”

The foregoing reflects that the court granted appellant all the relief he requested except motion for mistrial, which appellant asked for on the “basis of the implication of the questions and the answers.” The request for a mistrial was specified by appellant on a basis not now urged on appeal. Thus, nothing is before us for review. Sloan v. State, supra.

In the next of these series of contentions, the testimony of Sewell is again called to our attention, where the record reflects the following:

“Q. (By Mr. Booth) Did you also show a set of pictures — you testified you showed a set of pictures to Mr. Ray, was this the same photographs or—
“A. It was the same group of pictures.
“Q. Was Mr. Ray able to make an identification?
“A. Yes, sir, he was.
“MR. QUINN: Same objection, Your Honor. May I have the same objection to this line of testimony?
“THE COURT: Your objection to the last question is overruled.
“MR. QUINN: Best evidence and it is hearsay as to this defendant.
“Q. (By Mr. Booth) You may answer that question as to whether he identified.
“A. He identified the same three people Miss Moore identified, as being Richard Bell, Ray Jackson and the defendant.”

Appellant’s “Same objection, Your Hon- or” placed the trial judge in a difficult position of knowing the basis urged. Appellant had previously made objections and requested relief on the basis of the best evidence rule, hearsay and “on the basis of the implications of the questions and answers.” The record reflects that in each instance where appellant objected on the basis of hearsay during this line of questioning, the court had sustained his objection. While we are aware that a heavy burden is placed on counsel in requiring specificity in making objections in a fast-moving trial, we are not unmindful of the dilemma facing a trial judge who must rule upon an objection when he must guess as to the basis upon which it is grounded. We find that “Same objection, Your Honor” was not specific enough to apprise the trial court of the contention raised on appeal of hearsay and bolstering. We note that after the trial court overruled appellant’s objection, appellant stated, “Best evidence and it is hearsay as to this defendant.” To this objection appellant never received a ruling from the court. An objection must be pressed to the point of procuring a ruling or the objection is waived. Nichols v. State, Tex.Cr.App., 504 S.W.2d 462; Verret v. State, Tex.Cr.App., 470 S.W.2d 883.

Appellant urges a series of contentions relating to the testimony of Officer Sewell relative to a call Sewell received to go to the Sanger-Harris department store in Dallas. As a result of having responded to such call, it appears that Sewell had a conversation with one James Lewis Holloway and returned to the police station with Holloway, a money order and draft card.

Appellant’s first contention in this series is directed to the following testimony of Sewell:

“Q. Upon going back to the police station, were you first of all able to ascertain where this money order had originated?
“A. Yes, sir.
“Q. Where was that?
“A. The money order was taken in a robbery of a super market.”

Appellant’s objection that the foregoing was hearsay was sustained, and a requested instruction to disregard was given by the court. Appellant’s motion for mistrial was denied.

The answer given did not refer to a specific supermarket. Ordinarily, an error in asking an improper question or admitting improper testimony may be cured or rendered harmless by an instruction to disregard same. Bolden v. State, Tex.Cr.App., 504 S.W.2d 418; Clark v. State, Tex.Cr.App., 500 S.W.2d 469; Cazares v. State, Tex.Cr.App., 488 S.W.2d 110. Harm, if any, was cured by the court’s instruction to disregard.

The next contention in this series is directed to the following question asked Se-well by the prosecutor:

“Q. As a result of your conversation with James Lewis Holloway, and after going into your investigation as to your money order, who did you begin looking for?”

The court promptly sustained the objection to the foregoing question and the jury was instructed to disregard same. Motion for mistrial was overruled. The question was never answered. This Court seldom reverses a conviction solely because an improper question is asked. Mitchell v. State, Tex.Cr.App., 455 S.W.2d 266. We do not find the question, standing alone, to be so harmful that the instruction of the court would not cure same.

Appellant’s next contention is directed to the testimony by Sewell as follows:

“Q. As a result of your conversation with James Lewis Holloway and your investigation into the money order, what did you do?”

The record reflects that the court overruled appellant’s objection on the basis of hearsay, and Sewell answered: “I took a group of pictures to the store where the complainant, Mr. Ray and a lady were working.”

In Lufkin v. State, 144 Tex.Cr.R. 501, 164 S.W.2d 709, defendant’s complaint that the testimony of the officer to the effect that he and the sheriff were at the depot waiting for defendant “because of information we had received” was rejected, the court noting that the officer did not say what the information was. Extrajudicial statements offered for the truth of the matter asserted were not given, nor were the contents of any conversation or investigation revealed. No error is shown.

Appellant contends testimony of Sewell that he learned that appellant’s nickname was “Tip” after he went to the Sanger-Harris store was error and the court’s sustaining of his objection and instruction to the jury to disregard same did not remove the harmfulness of the error.

In Weems v. State, 148 Tex.Cr.R. 154, 185 S.W.2d 431, the Court rejected a claim that a witness’ testimony that he had been told that deceased was known by a certain name was hearsay. The Court held such testimony was an exception to the hearsay rule. See Ex parte Thompson, 171 Tex.Cr.R. 509, 351 S.W.2d 890.

Appellant contends that an argument of the prosecutor requires reversal.

The prosecutor made the following argument relative to the investigation of the robbery by Officer Sewell:

“He determines that the money orders, the American Express money orders that he got from Sanger’s came out of the robbery. He assembles a group of photos, and what a coincidence—
“MR. QUINN: Your Honor, I believe that was ruled out as hearsay against the Defendant.”

The court sustained appellant’s objection and instructed the jury to disregard any statements about money orders, but overruled appellant’s motion for a mistrial.

We find that the court’s prompt instruction to the jury to disregard rendered the error harmless. Black v. State, Tex.Cr.App., 491 S.W.2d 428; Hodge v. State, Tex.Cr.App., 488 S.W.2d 779.

Appellant in his last contention reviews grounds heretofore discussed and urges as a result of cumulation of errors he was denied due process of law. We have reviewed this contention and find same to be without merit.

Finding no reversible error, the judgment is affirmed.

Opinion approved by the Court.

(dissenting).

I dissent to the Court’s disposition of appellant’s grounds of error relating to Officer Sewell’s testimony. The disposition is strained and hypertechnical. I think a reversal is in order.

At the outset, I note that Officer Sewell should never have been allowed to testify in the first place. His entire testimony was hearsay and most of it was designed to bolster the unimpeached identification testimony of the two complaining witnesses. Lyons v. State, 388 S.W.2d 950 (Tex.Cr.App.1965). It is true, however, that appellant never urged the bolstering objection at trial and that many of his hearsay objections were improperly lodged.

But I cannot agree with the majority’s disposition of appellant’s ground of error # 7. The record shows the following transpired:

“MR. BOOTH [Prosecutor]: Was this identification of John Willis Williams [appellant] a positive identification?
“THE WITNESS: Yes, sir, it was.
“MR. QUINN [Defense Counsel]: Your Honor, that calls for complete hearsay as to the defendant.
“THE COURT: Sustained.
“MR. QUINN: The picture would be the best evidence, and we ask that the jury be instructed not to consider the testimony.
“THE COURT: You will not consider the question for any purpose in your deliberations.
“MR. QUINN: And we ask again for a mistrial on the basis of the implications of the questions and the answers.
“THE COURT: Denied.
“MR. QUINN: As all being hearsay.”

The majority says that the objection on appeal that the testimony amounted to “hearsay bolstering” differed from the objection at trial “on the basis of the implications of the questions and answers.” Yet a reading of the record clearly suggests to me that the “implications of the questions and answers,” followed as it was by counsel’s statement “As all being hearsay” was merely a broadly-worded request for a mistrial because of the hearsay testimony which had already been called to the trial court’s attention. It appears in the familiar litany of the sustained objection, the instruction to disregard, and the denial of a mistrial. And there can be no doubt that such hearsay testimony about prior identifications made by other witnesses is inadmissible. Hills v. State, Tex.Cr.App., 524 S.W.2d 692 (delivered June 25, 1975) (majority and concurring opinions); Haughton v. State, 99 Tex.Cr.R. 42, 267 S.W. 715 (1925); Jamail v. State, 99 Tex.Cr.R. 127, 268 S.W. 473 (1925); Hammond v. State, 123 Tex.Cr.R. 590, 60 S.W.2d 235 (1933).

The disposition of ground of error # 8 also causes problems for me. Immediately after defense counsel’s statement “As all being hearsay,” the statement of facts reveals the following to have transpired:

“Q (By Mr. Booth) Did you also show a set of pictures — you testified you showed a set of pictures to Mr. Ray, was this the same photographs or—
“A It was the same group of pictures.
“Q Was Mr. Ray able to make an identification?
“A Yes, sir, he was.
“MR. QUINN: Same objection, Your Honor. May I have the same objection to this line of testimony?
“THE COURT: Your objection to the last question is overruled.
“MR. QUINN: Best evidence and it is hearsay as to this defendant.
“Q (By Mr. Booth) You may answer that question as to whether he identified.
“A He identified the same three people Miss Moore identified, as being Richard Bell, Ray Jackson and the defendant.”

The majority states that defense counsel’s “Same objection, Your Honor” was too general to apprise the trial court of appellant’s hearsay objections. Coming as it did just five lines after appellant’s hearsay objection, the objection is specific enough for me. Note also that counsel specifically restated his objection immediately following the court’s ruling and before the question was asked again. If, as I contend, the objection was sufficient to apprise the court of appellant’s hearsay objection, then it surely should have been sustained. Hills, supra; Haughton, supra; Jamail, supra, and Hammond, supra.

Besides Officer Sewell’s, the only other testimony for the State came from the two complaining witnesses, Moore and Ray. And neither of these two had seen appellant for four years prior to the trial. Moreover, defense counsel was able to develop some slight discrepancies in their accounts of the photographic identifications. It is therefore highly likely that Officer Sewell’s hearsay testimony bolstering their in-court identifications was prejudicial to this appellant. I note also that very little of Officer Sewell’s other testimony would have been admissible over the proper objections.

For these reasons, I dissent.

ODOM, J., joins in this dissent.

OPINION

ON APPELLANT’S MOTION FOR REHEARING

ROBERTS, Judge.

Appellant’s motion for rehearing was granted in order to examine more closely some of the objections to the testimony of Officer Sewell. After further considering these grounds, we reverse the conviction and remand the ease for a new trial.

At the outset, we note that Officer Sewell’s testimony was inadmissible for any purpose. His entire testimony was hearsay and most of it was designed to bolster the unimpeached identification testimony of the two complaining witnesses. Lyons v. State, 388 S.W.2d 950 (Tex.Cr.App.1965). It is true, however, that appellant never urged the bolstering objection at trial and that many of his hearsay objections were improperly lodged.

But we conclude that error was preserved on appellant’s ground of error # 7. The record shows the following transpired:

“MR. BOOTH [Prosecutor]: Was this identification of John Willis Williams [appellant] a positive identification?
“THE WITNESS: Yes, sir, it was.
“MR. QUINN [Defense Counsel]: Your Honor, that calls for complete hearsay as to the defendant.
“THE COURT: Sustained.
“MR. QUINN: The picture would be the best evidence, and we ask that the jury be instructed not to consider the testimony.
“THE COURT: You will not consider the question for any purpose in your deliberations.
“MR. QUINN: And we ask again for a mistrial on the basis of the implications of the questions and the answers.
“THE COURT: Denied.
“MR. QUINN: As all being hearsay.”

On original submission, this Court said that the objection on appeal that the testimony amounted to “hearsay bolstering” differed from the objection at trial “on the basis of the implications of the questions and answers.” Yet a closer reading of the record suggests that the “implications of the questions and answers,” followed as it was by counsel’s statement “As all being hearsay” was merely a broadly-worded request for a mistrial because of the hearsay testimony which had already been called to the trial court’s attention. It appears in the familiar litany of the sustained objection, the instruction to disregard, and the denial of a mistrial. And there can be no doubt that such hearsay testimony about prior identifications made by other unimpeached witnesses is inadmissible. Hills v. State, 524 S.W.2d 692 (Tex.Cr.App.1975) (majority and concurring opinions); Haughton v. State, 99 Tex.Cr.R. 42, 267 S.W. 715 (1925); Jamail v. State, 99 Tex.Cr.R. 127, 268 S.W. 473 (1925); Hammond v. State, 123 Tex.Cr.R. 590, 60 S.W.2d 235 (1933).

The disposition of ground of error # 8 has also been reconsidered by us. Immediately after defense counsel’s statement “As all being hearsay,” the statement of facts reveals the following to have transpired:

“Q (By Mr. Booth) Did you also show a set of pictures — you testified you showed a set of pictures to Mr. Ray, was this the same photographs or—
“A It was the same group of pictures.
“Q Was Mr. Ray able to make an identification?
“A Yes, sir, he was.
“MR. QUINN: Same objection, Your Honor. May I have the same objection to this line of testimony?
“THE COURT: Your objection to the last question is overruled.
“MR. QUINN: Best evidence and it is hearsay as to this defendant.
“Q (By Mr. Booth) You may answer that question as to whether he identified.
“A He identified the same three people Miss Moore identified, as being Richard Bell, Ray Jackson and the defendant.”

On original submission, this Court said that defense counsel’s “Same objection, Your Honor” was too general to apprise the trial court of appellant’s hearsay objections. Upon reexamining these remarks in context, we conclude the objection was specific enough, especially coming as it did just five lines after appellant’s hearsay objection. We note also that counsel specifically restated his objection immediately following the court’s ruling and before the question was asked again. Since the objection was sufficient to apprise the court of appellant’s hearsay objection, then it surely should have been sustained. Hills, supra; Haughton, supra; Jamail, supra, and Hammond, supra.

Besides Officer Sewell’s, the only other testimony for the State came from the two complaining witnesses, Moore and Ray. And neither of these two had seen appellant for four years prior to the trial. Moreover, defense counsel was able to develop some slight discrepancies in their accounts of the photographic identifications. It is therefore highly likely that Officer Sewell’s hearsay testimony bolstering their in-court identifications was prejudicial to this appellant. We note also that very little of Officer Sewell’s other testimony would have been admissible over the proper objections.

For these reasons, appellant’s motion for rehearing is granted. The judgment is reversed and the cause remanded.

MORRISON, Judge

(dissenting).

The majority now reverses this conviction because Officer Sewell was allowed to bolster the in-court identification of witnesses Moore and Ray with testimony of a previous identification from a photographic display. Although I agree that this testimony was erroneously admitted, I remain convinced that our original disposition was correct.

Officer Sewell stated four times without objection that Moore and Ray had been able to make an identification, of three men from nine photographs. Counsel objected only to testimony developing the circumstances and details of the identification. The objection was on the basis of the pictures as being the best evidence, and counsel stated, “We object to any testimony unless the pictures are shown in the courtroom”. Clearly this objection is not the same as the bolstering objection urged on appeal and nothing is presented for review. Campbell v. State, Tex.Cr.App., 521 S.W.2d 636; Arivette v. State, Tex.Cr.App., 513 S.W.2d 857. Furthermore, failure to object at any time to testimony that a prior identification was made by Moore and Ray waived any error.

I respectfully dissent to the reversal.

DOUGLAS, J., joins in this dissent.


author: ONION, Presiding Judge. DOUGLAS, Judge

text:
    Oscar FRENCH, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 50475.
    Court of Criminal Appeals of Texas.
    Nov. 5, 1975.
    Gerald K. Payte, Houston, for appellant.
    Carol S. Vance, Dist. Atty. and James C. Brough, Henry Oncken, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for the offense of robbery by assault with firearms. The punishment was assessed at ten (10) years.

An examination of the indictment in the instant case reveals that it contains the same fundamental defect as that found in Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973) (Case One) and Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App., delivered July 9, 1975), in that it fails to allege “to whom the property allegedly taken belonged.”

For this reason, the judgment is reversed and the prosecution ordered dismissed.

DOUGLAS, Judge

(dissenting).

The indictment has been held fundamentally defective because ownership was not alleged. Ownership was not an element of the offense of robbery under Article 1408, V.A.P.C. (1925), which provides that robbery is committed by taking property from the possession of the injured person. Possession was alleged in this. See the dissenting opinion in Bouie v. State, 528 S.W.2d 587 (1975).

The judgment should be affirmed.


author: ODOM, Judge. DOUGLAS, Judge

text:
    Lyndoll Lener AINSWORTH, Appellant, v. The STATE of Texas, Appellee.
    Nos. 50996 & 50997.
    Court of Criminal Appeals of Texas.
    Nov. 5, 1975.

      Lyndoll Lener Ainsworth, pro se.
    Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant waived trial by jury and entered pleas of guilty before the court to the offenses of robbery by assault under the former Penal Code. The court assessed punishment in each case at twenty-five (25) years.

We are confronted at the outset .with fundamentally defective indictments. As in Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973) (case one), the indictments here fail to allege “to whom the property allegedly taken belonged.” See Lucero v. State, supra, and the authorities there cited. See also Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App., delivered July 9, 1975).

The judgments are reversed and the prosecutions ordered dismissed.

DOUGLAS, Judge

(dissenting).

The indictment has been held fundamentally defective because ownership was not alleged. Ownership was not an element of the offense of robbery under Article 1408, V.A.P.C. (1925), which provides that robbery is committed by taking property from the possession of the injured person. Possession was alleged in this. See the dissenting opinion in Bouie v. State, Tex.Cr.App., 528 S.W.2d 587 (1975).

The judgment should be affirmed.


author: DAVIS, Commissioner. DOUGLAS, Judge

text:
    Curtis BATRO, Appellant, v. The STATE of Texas, Appellee.
    No. 51114.
    Court of Criminal Appeals of Texas.
    Nov. 5, 1975.
    None on appeal for appellant.

      Carol S. Vance, Dist. Atty. and Clyde F. De Witt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for robbery by assault. Punishment was assessed by the court at eight years.

The indictment alleged the offense occurred on or about December 5, 1973, and the record reflects that trial was in November, 1974.

At the outset, we are confronted with a fundamentally defective indictment. The pertinent part of the indictment alleged that appellant on or about December 5, 1973

“did then and there unlawfully assault Daniel Faltermeier hereinafter styled the Complainant, and did by the assault, by violence, and by putting the Complainant in fear of life and bodily injury, fraudulently and against the Complainant’s will, take from the person and possession of the Complainant money, clothing and one stereo with the intent to deprive the Complainant of the value of the property and to appropriate it to the Defendant’s use. . . . ”

An examination of the indictment reveals that, like the indictments in Lucero v. State, Tex.Cr.App., 502 S.W.2d 128 and Bouie v. State, Tex.Cr.App., 528 S.W.2d 587 (1975), it does not aver to whom the property allegedly taken belonged. Such deficiency renders the indictment fundamentally defective.

The judgment is reversed and the prosecution is ordered dismissed.

Opinion approved by the Court.

DOUGLAS, Judge

(dissenting).

The indictment has been held fundamentally defective because ownership was not alleged. Ownership was not an element of the offense of robbery under Article 1408, V.A.P.C. (1925), which provides that robbery is committed by taking property from the possession of the injured person. Possession was alleged in this. See the dissenting opinion in Bouie v. State, Tex.Cr.App., 528 S.W.2d 587 (1975).

The judgment should be affirmed.


author: DAVIS, Commissioner. ROBERTS, Judge

text:
    Pamela Walker AUSTIN, Appellant, v. The STATE of Texas, Appellee.
    No. 50272.
    Court of Criminal Appeals of Texas.
    Nov, 12, 1975.

      Marvin Collins, Fort Worth, for appellant.
    Tim Curry, Dist. Atty., and Ward Casey, Glen Eakman and Donald S. Gandy, Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for possession of heroin, alleged to have occurred on or about April 22, 1974. A plea of guilty was entered before the jury, and punishment was assessed at seven years.

At the outset, appellant urges that the court erred in accepting appellant’s plea of guilty to a felony information charging possession of heroin which neither alleged unlawful possession of heroin nor alleged facts negating legal possession.

In light of this Court’s recent decision in Vasquez v. State, 522 S.W.2d 910, and Sec. 5.10(a) of the Controlled Substances Act, we find no merit in appellant’s argument that the information was faulty in that it neither alleged unlawful possession of heroin nor alleged facts negating legal possession.

Appellant contends the court erred in accepting his plea to a felony information which was unsupported by a valid complaint.

In Chappie v. State, Tex.Cr.App., 521 S.W.2d 280, where the defendant waived his right to be tried on an indictment and elected to be tried on an information, as in the instant case, it was held that the information need not be based upon a complaint.

Appellant contends the court erred in conducting an arraignment of appellant in the presence of the jury.

This Court has stated that the practice of conducting arraignment in the presence of the jury should not be condoned and trial courts should be careful to avoid such practice. Winkle v. State, Tex.Cr.App., 506 S.W.2d 891; Minafee v. State, Tex.Cr.App., 482 S.W.2d 273. In the instant case, as in Winkle v. State, supra, and Stewart v. State, Tex.Cr.App., 473 S.W.2d 495, there was no objection voiced to the arraignment hearing conducted in the jury’s presence. No reversible error is shown.

Appellant contends the court erred in failing to declare a mistrial when the prosecutor injected an extraneous offense into evidence in violation of the court’s order made pursuant to appellant’s motion in li-mine.

Appellant complains of the testimony of Officer Wiley that one Edward Stone was arrested at the same time appellant was arrested, and that he approached a vehicle “on Dillard Street earlier there had been a disturbance where Edward Stone had —.” The foregoing statement of Wiley was interrupted by an objection by appellant which was sustained by the court. We do not find that the complained-of testimony constituted evidence of the commission of an extraneous offense by appellant. Further, appellant’s objection was sustained and appellant requested no further relief. Having failed to pursue the matter until she received an adverse ruling from the court, nothing is presented for review. Hicks v. State, Tex.Cr.App., 493 S.W.2d 833; Winkle v. State, supra.

Appellant contends the court erred in failing to grant her motion for a new trial for the reason that the jury received evidence regarding punishment and parole after they retired to deliberate, which resulted in an increased punishment.

The only juror called by appellant at the hearing was Rita Weimer. We find her testimony to be conflicting. The witness first testified it was stated that appellant would have to do three or four years of a seven year term and parole would be automatic. The witness then testified that nobody said parole would be automatic, but that the discussion was to the effect that if appellant were a “good prisoner, and if the parole board and prison authorities thought she was a proper person for parole, she could get parole in three to four years.”

The State called jurors Hegar and South as witnesses. Hegar, foreman of the jury, testified that there was discussion about the parole laws during deliberation, but that no one stated that they had any knowledge as to the parole laws and their application. Hegar stated that it was discussed that appellant might have to serve seven years if such time were assessed, but that she might be considered for parole at an earlier date in the event of good conduct and “it was up to her to serve less time than the seven called for.” Hegar recalled that there was talk about appellant having to do five years.

Juror South testified that the jurors wondered what the parole laws were and that no juror made any statement as to the number of years appellant would have to serve. South testified that the seven year term was arrived at in light of testimony that appellant’s oldest daughter was ten years old and if she had to serve the full seven years, appellant would be out of prison by the time her daughter graduated from high school.

Appellant points to testimony adduced at the hearing on the motion that the range of punishment on the first ballot was from two to ten years and urges that the discussion about how many years appellant would have to serve before parole influenced the jury verdict.

In Scaling v. State, Tex.Cr.App., 499 S.W.2d 318, relied upon by appellant, a jur- or who had previous jury service and purported to know the law stated that the defendant would have to serve one-third or one-fourth of the time assessed, and another juror agreed to the penalty only upon the assurance that such representation was correct. In Scaling, this Court reversed the conviction, finding that the misstatement of the law had the effect of increasing the punishment assessed.

Not every misstatement of the parole law or other comment during jury deliberation calls for reversal. Slanker v. State, Tex.Cr.App., 505 S.W.2d 274. It is a matter of common knowledge that from time to time inmates of the Texas Department of Corrections are released on parole. Howard v. State, Tex.Cr.App., 505 S.W.2d 306; Taylor v. State, Tex.Cr.App., 420 S.W.2d 601. While it appears that the jury discussed when appellant might be released on parole during their deliberations, it appears that no one professed to know the parole law. Further, it is not shown that any juror relied on any of the various suggestions made as to how long appellant would have to serve. We cannot conclude that the misstatement of the law had the effect of increasing the punishment assessed nor can we conclude that the misconduct of the jury was such as to have deprived the appellant of a “fair and impartial trial.” Art. 40.03(8), V.A.C.C.P.; Heredia v. State, Tex.Cr.App., 528 S.W.2d 847 (1975). Under the circumstances here presented, we find that the complained-of discussion of the parole law by the jurors does not require reversal. See Howard v. State, supra; Slanker v. State, supra.

The judgment is affirmed.

Opinion approved by the Court.

ROBERTS, Judge

(dissenting).

I cannot agree that a defendant in a felony case can be tried on an information unsupported by a complaint. See my dissenting opinion in Chappie v. State, 521 S.W.2d 280, 282-283 (Tex.Cr.App.1975).

ONION, P. J., joins in this dissent.

      . Section 5.10(a), supra, provides:
      “It is not necessary for the state to negate any exemption or exception set forth in this Act in any complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this Act, and the burden of going forward with the evidence with respect to any exemption or exception shall be upon the person claiming its benefit.”


author: ONION, Presiding Judge.

text:
    Phillip David HUNNICUTT, Appellant, v. The STATE of Texas, Appellee.
    No. 50254.
    Court of Criminal Appeals of Texas.
    Jan. 14, 1976.
    Rehearing Denied Feb. 4, 1976.

      Frank S. Wright, Dallas, on appeal only, for appellant.
    Martin D. Eichelberger, Dist. Atty., Lynn Malone, Asst. Dist. Atty., Waco, Jim D. Vollers, State’s Atty. and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for aggravated rape under the provisions of V.T.C.A. Penal Code, Sec. 21.03. Punishment for this first degree felony was assessed at life imprisonment by the trial court following a verdict of guilty.

Appellant contends that the trial court erred in admitting into evidence certain items seized from his automobile in violation of the Fourth Amendment, United States Constitution, and Article I, Sec. 9 of the State Constitution. He further urges that he was denied the effective assistance of trial counsel guaranteed by the Federal and State Constitutions — pointing out, among other things, that his retained and only counsel was an out-of-state lawyer not licensed to practice in Texas.

The sufficiency of the evidence is not challenged. Suffice it to say, the record reflects the prosecutrix, 17 years of age at the time, and her roommate, both apparently high school students, had rented an apartment at the Whispering Oaks Apartments in Waco. On May 19,1974, the pros-ecutrix awoke at 5:30 a.m. to observe a hooded man standing beside her roommate’s bed, telling her he would kill her if she screamed. The prosecutrix feigned sleep and had her head turned to the wall, but she could hear the conversation between her roommate and the man. Later, he came to the prosecutrix’s bed, shook her and pulled the covers down. He began to fondle her, told her not to resist as he had a gun and would kill her. The prosecutrix observed the man had both a gun and a flashlight. He pulled her to the floor and raped her. Thereafter, he left through the front door. The prosecutrix identified the appellant as her assailant as she had seen him closely by the light of the flashlight after he had ripped off his hood or mask. She identified a pistol as one being similar to that exhibited by appellant, as well as gloves, as being similar to the ones she had seen on the carpet at the time of the alleged offense.

Appellant’s written extrajudicial confession was admitted into evidence after a separate hearing on the voluntariness thereof. The only objection to the confession was that in addition to confessing the offense charged the appellant admitted that he had committed an act of oral sodomy upon the roommate and forced her to commit such an act upon him. The objection was overruled and the confession admitted into evidence before the jury.

Turning to the search and seizure question, the record reflects that a week later on May 26, 1974, 25 or 30 Waco police officers were on a “stake out” at various apartment complexes in Waco. Officer Michael Larrew was assigned to the Casa Linda apartments and Officer Lewis to Casa Royale apartments, which had a common parking lot with Casa Linda apartments. Larrew stated about 3:30 a.m. he observed a car circle the block and about 10 minutes later return and park around the corner. About 10 or 15 minutes thereafter, the officer observed a short, stocky white male walking across the parking lot. Sometime later, when he and Officer Lewis were on a foot patrol of the complexes, he observed the same man, whom he identified as the appellant, crossing the parking lot again going in the same direction as he had earlier. Later the appellant was seen going into an apartment at the Casa Royale, and 10 minutes later he was seen to emerge from the room. When he reached ground level, the officers decided to talk to him as he appeared to be roaming around aimlessly for an hour and 45 minutes after he was first observed. He gave his name, but had no identification. He admitted he was not a resident of Casa Royale, but stated he was waiting for an old girlfriend. The appellant suddenly complained of a stomach ache and was allowed to sit in the back seat of the police vehicle. At this point, he became very nervous and upset, his voice falling suddenly and then going higher. When asked about who his girlfriend was, he mumbled something unintelligible, and when asked what he was doing at the apartments, he stated he planned to swim nude in the swimming pool “just for kicks.” At this point the officer told the appellant he was under arrest as a suspicious person and was going to be taken to the police station for further questioning. When asked if he was in a vehicle and, if so, if he would like for it to be taken to the police station, the appellant agreed and took the officers around the corner and pointed out a green Rambler and told Officer Larrew the keys were in the car. When Larrew opened the car door, the interior light came on and he began to look for the keys and noticed what appeared to be a pile of rags on the front seat. He reached over and picked up one of them and it appeared to be a pillowcase fashioned as a mask. Larrew related that as he stepped out of the car to show Lewis what he had found Officer Lewis stepped forward to say the appellant had just told him a pistol was in the car. Lar-rew then found the pistol under the “rags,” which also included a white cotton glove, a white sock, a nylon stocking and a flashlight.

Appellant was initially arrested by the officers under the authority of Article 14.03, Vernon’s Ann.C.C.P. After being informed of his arrest, he agreed that his vehicle should be taken to the police station. Appellant does not contend that Officer Larrew did not have justifiable cause for being in his (appellant’s) automobile, but contends that what followed was a war-rantless search without probable cause and there was nothing in plain view. We cannot agree. The officer was in appellant’s vehicle with his consent, and while looking for the keys, he saw in plain view a pillowcase altered to serve as a mask. Officer Larrew was then informed that appellant had stated there was a pistol in the car. The information thus given Officer Larrew gave him probable cause to search the car. See, V.T.C.A. Penal Code, Sec. 46.02. Cf. Dugger v. State, 402 S.W.2d 178, 180 (Tex.Cr.App.1966); Thompson v. State, 398 S.W.2d 942, 944 (Tex.Cr.App.1966). In his search, Larrew found the pistol under the “rags,” which were also found to include the items previously mentioned, all on the front seat of the car.

We conclude the search and seizure were permissible under both the State and Federal Constitutions.

There are, of course, other reasons why the error, if any, in admitting into evidence the items found in appellant’s car do not present reversible error.

There was positive eyewitness testimony from the prosecutrix, who had an opportunity to observe the appellant from close proximity and at one time with a flashlight shining on his face. In addition, there is the voluntary extrajudicial confession of the appellant in which he mentions the use of a mask and pistol in the commission of a crime of rape. Even if it could be validly argued the items taken from appellant’s car resulted from an improper search, the admission of such evidence in light of the eyewitness testimony and appellant’s confession would render the error harmless beyond a reasonable doubt. See Clemons v. State, 505 S.W.2d 582 (Tex.Cr.App.1974); Bridger v. State, 503 S.W.2d 801 (Tex.Cr.App.1974); Clemons v. State, 501 S.W.2d 92 (Tex.Cr.App.1973).

Further, at the penalty stage of the trial the appellant took the stand. On cross-examination the prosecutor asked:

“Q Mr. Hunnicutt, are you guilty of "what you’re charged with?

The appellant replied, “Yes, sir.”

Thus, any objection the appellant may have had was waived when he made a judicial confession of the offense with which he was charged. Richardson v. State, 458 S.W.2d 665 (Tex.Cr.App.1970); Boothe v. State, 474 S.W.2d 219 (Tex.Cr.App.1971); Palmer v. State, 475 S.W.2d 797 (Tex.Cr.App.1972); Sheridan v. State, 485 S.W.2d 920 (Tex.Cr.App.1972); McKenzie v. State, 487 S.W.2d 65 (Tex.Cr.App.1972). Cf. Creel v. State, 493 S.W.2d 814 (Tex.Cr.App.1973).

Next, we shall consider the appellant’s claim of deprivation of effective assistance of counsel. It is his claim that since his sole counsel was not licensed in Texas and counsel was not associated with Texas counsel in the trial he made many procedural errors due to his lack of knowledge of Texas criminal procedure. The State argues the record fails to reflect that appellant’s retained counsel was not licensed in Texas. The docket sheet and the transcription of the court reporter’s notes reflect that defense counsel’s address was “Attorney at Law, 815 Cravens Building, Oklahoma City, Oklahoma, 73102,” and the affidavit of the assistant district attorney introduced at the hearing on the motion for new trial reflects he was present when the trial judge granted defense counsel permission to practice in his court for the purpose of the instant case since counsel was not licensed to practice in Texas. Further, this court will take judicial notice of whether an attorney is licensed in Texas or not. Cf. Devereaux v. Daube, 185 S.W.2d 211 (Tex.Civ.App.1945—no writ). See also 23 Tex. Jur.2d, Evidence, Sec. 25, p. 45.

It seems clear that the fact that a private or retained counsel representing the accused in a criminal case was an attorney from another jurisdiction but was not admitted to practice in the court in which the accused was tried does not conclusively show that such counsel is incompetent. Dennis v. United States, 340 U.S. 887, 71 S.Ct. 133, 95 L.Ed. 644 (1950), 74 A.L.R.2d 1390 at p. 1426 and cases there cited.

Article 308, Vernon’s Ann.C.S., provides:

“The Supreme Court shall make such rules and regulations as to admitting attorneys from other jurisdictions to practice law in this State as it shall deem proper and just. All such attorneys shall be required to furnish satisfactory proof as to good moral character.”

Pursuant to such statute, the present Rules Governing Admission to the Bar of Texas adopted by the Supreme Court of Texas on February 26,1974, provide in Rule XII(i) as follows:

“(I) A reputable non-resident attorney, although not licensed to practice law in Texas, may, after first complying with the requirements hereinafter set forth, participate in the trial or hearing of any particular cause in this State, provided a resident practicing attorney of this State, a member of the State Bar of Texas, is actually employed and associated and personally participates with such non-resident attorney in such trial or hearing. If such admission is sought to any court of this State by a non-resident attorney, applicant shall first file with the court wherein he or she seeks admission a written sworn motion requesting admission. The motion shall contain:
“(1) The office address of the non-resident attorney.
“(2) The office address of an attorney of this State with whom the non-resident attorney is associated in the trial.
“(3) A statement that the non-resident attorney is or is not a member in good standing of the Bar of the state of his residence.
“(4) A statement that the non-resident attorney has or has not been the subject of disciplinary action by the Bar or courts of the state of his residence during the preceding five (5) years.
“(5) A statement that the non-resident attorney has or has not been denied admission to the courts of any state or to any federal court during the preceding five (5) years.
“(6) A statement that applicant is familiar with the Rules of the State Bar of Texas governing the conduct of members of the State Bar of Texas, and will at all times abide by and comply with the same so long as such trial or hearing is pending, and he or she has not withdrawn as counsel therein.
“The motion of the non-resident attorney seeking admission shall be accompanied by motion of the resident practicing attorney of this State with whom he or she shall be associated in the trial or hearing of a particular cause, which shall contain a statement that the resident attorney finds the applicant to be a reputable attorney and recommends his or her admission to practice before the court.
“The judge may examine the non-resident attorney to satisfy himself that the non-resident attorney is aware of and will observe the ethical standards required of attorneys of this State. If the judge is not satisfied that the non-resident attorney is a reputable attorney and will observe the ethical standards required of attorneys in this State, he may in his discretion deny the motion.
“If after admission to practice in this State the non-resident attorney engages in professional misconduct as that term is defined by the Rules Governing the State Bar of Texas, the admitting judge may revoke his or her admission to practice and may cite him or her as for contempt. In addition, the admitting judge may refer the matter to the Grievance Committee of the Bar District wherein the court is located for such action by the Committee as it deems necessary and desirable.
“The filing of a motion requesting admission to a court of this State by a non-resident attorney shall constitute his or her submission to the jurisdiction of the State Bar of Texas Grievance Committee for the Bar District wherein the court is located. The county in which the court is located shall be considered the county of his or her residence for purpose of determining venue in any disciplinary action taken against him or her.”

The requirement that out-of-state counsel be associated with Texas counsel is not a new requirement. See and cf. Attorney General’s opinion No. 1601 (1939); State Bar v. Belli, 382 S.W.2d 475 (S.Ct.1964).

In the instant case it appears the trial court permitted an out-of-state attorney to practice in his court for the purpose of the instant case without the association of Texas counsel and without compliance with the other requirements of the aforesaid Rule. This should not have been done, and such action should not be condoned. We cannot agree, however, that the failure of the trial counsel to properly comply with such Rule or the failure of the trial court to require compliance would invalidate per se the conviction or demonstrate in and of itself the ineffective assistance of counsel. See United States v. Bradford, 238 F.2d 395 (2nd Cir. 1956) cert. denied, 352 U.S. 1002, 77 S.Ct. 558, 1 L.Ed.2d 546. In addition to the factor of the lawyer being from outside the State and not complying with the stated Rule, there should be other factors showing incompetency, particularly under the circumstances, as here, where the trial court permitted, even though wrongly, such practice.

Turning to those other factors we noted, it is contended that counsel should have filed pre-trial motions, but appellant fails to point out what motions could or should have been filed or how he would have benefited therefrom. The mere “shotgun” filing of pre-trial motions, for the sake of appearance, does not in and of itself effectively aid the defense of an accused. See Hayes v. State, 484 S.W.2d 922 (Tex.Cr.App.1972).

Appellant’s contention that trial counsel’s failure to actively contest the admission of his confession does not reflect ineffective assistance of counsel absent a showing that the confession was obtained involuntarily. Nichols v. State, 500 S.W.2d 158 (Tex.Cr.App.1973).

Similarly, the fact that counsel did not object to the court’s charge is not significant unless there is a showing that there should have been a proper objection or a requested charge or instruction. Jackson v. State, 491 S.W.2d 155 (Tex.Cr.App.1973).

Likewise, appellant’s complaint that his counsel failed to call witnesses at the guilt stage of the trial or character witnesses later is unwarranted in absence of showing that such witnesses were available and appellant would benefit from the presentation of such evidence. Coble v. State, 501 S.W.2d 344 (Tex.Cr.App.1973).

Beyond the assertion in appellant’s brief, there is nothing in the record to reflect that appellant had a history of psychological problems. The record reflects that the appellant was examined by two psychiatrists at the behest of the State, and their reports did not reflect any lack of mental competency. Under the circumstances, counsel cannot be faulted for failing to seek additional psychiatric evaluation of the appellant as contended.

The contentions that counsel was ineffective because he failed to file a “Brady v. Maryland” motion seeking evidence favorable to the defense or seek under the “Gaskin rule” statements of witnesses for use in cross-examination are without merit. There is nothing in the record to show that exculpatory evidence was in the possession of the State that would have been discoverable by a “Brady v. Maryland” motion or that any of the witnesses had given statements which could have been secured by invoking the “Gaskin rule.”

The main problem with many of appellant’s contentions, as seen from the above, is that there is no proof supporting the same. These contentions were asserted in allegations in an amended motion for new trial filed by Texas counsel after trial counsel was no longer in the case, but no proof was offered in support thereof at the hearing on such motion. The allegations of a motion for new trial do not prove themselves. Huffman v. State, 479 S.W.2d 62 (Tex.Cr.App.1972); Carpenter v. State, 473 5.W.2d 210 (Tex.Cr.App.1971).

Appellant also urges that counsel failed to “object with specificity” to the admission of items taken from appellant’s car. While the objection was perhaps more general than it should have been, it was undoubtedly sufficient to apprise the trial court of the nature of the objection and certainly this court has not refused to review the question because of the nature of the objection.

Still further, appellant contends the most glaring error was counsel’s failure to request prior to trial that the jury assess punishment in accordance with Article 37.-07, Vernon’s Ann.C.C.P., counsel not being familiar with the statute as he was an out-of-state lawyer. Appellant apparently relies upon counsel’s statement at the close of the guilt stage of the trial that he was unaware of the requirement that a request to have the jury assess punishment had to be filed prior to trial and belatedly requested the court to permit the jury to assess punishment. The State refused to agree, and the court assessed the punishment after the penalty stage of the trial. While counsel would have been better advised to have associated Texas counsel with him, the failure to make a timely request for the jury to assess punishment is not limited to out-of-state counsel; see, e. g., Green v. State, 433 S.W.2d 435 (Tex.Cr.App.1968). We cannot conclude that such error or oversight alone would render counsel ineffective. In light of the overwhelming evidence of guilt and the number of peace officers and women who all testified at the penalty stage of the trial that the appellant’s reputation for being a peaceful and law-abiding citizen was bad, it would be difficult to say that the jury, if allowed, would have assessed a lesser penalty.

Further, counsel having been retained, any claim of incompetency or lack of effective assistance of counsel cannot be imputed to the State. Elizalde v. State, 507 S.W.2d 749 (Tex.Cr.App.1974); Kincaid v. State, 500 S.W.2d 487 (Tex.Cr.App.1973); Curtis v. State, 500 S.W.2d 478 (Tex.Cr.App.1973); Cleaver v. State, 498 S.W.2d 945 (Tex.Cr.App.1973); Martin v. State, 493 S.W.2d 866 (Tex.Cr.App.1973); Sellers v. State, 492 S.W.2d 265 (Tex.Cr.App.1973); Hall v. State, 492 S.W.2d 950 (Tex.Cr.App.1973); Farmer v. State, 491 S.W.2d 133 (Tex.Cr.App.1973); Perez v. State, 491 S.W.2d 672 (Tex.Cr.App.1973); Gondek v. State, 491 S.W.2d 676 (Tex.Cr.App.1973).

Our review of the record does not reflect any willful misconduct by retained counsel without appellant’s knowledge which amounts to a breach of legal duty so as to deny the appellant of the effective assistance of counsel. Steel v. State, 453 S.W.2d 486 (Tex.Cr.App.1970); Lawson v. State, 467 S.W.2d 486 (Tex.Cr.App.1971); Walsh v. State, 468 S.W.2d 453 (Tex.Cr.App.1971); Helms v. State, 484 S.W.2d 925 (Tex.Cr.App.1972); White v. State, 487 S.W.2d 104 (Tex.Cr.App.1972); Ex parte Hill, 528 S.W.2d 259 (Tex.Cr.App.1975), and cases there cited; Ex parte Raley, 528 S.W.2d 257 (Tex.Cr.App.1975).

Appellant’s contention is overruled.

The judgment is affirmed.

      . In Taylor v. State, 420 S.W.2d 601 (Tex.Cr.App.1967), this court stated:
      “It is well settled that ‘(w)here the offense is one continuous transaction, or another offense is a part of the case on trial or blended or closely interwoven therewith, proof of all the facts is proper.” See also 4 Branch’s Ann.P.C., 2d ed., Sec. 2255, p. 618; 23 Tex.Jur.2d, Sec. 196, p. 302.

      . There was no objection to this testimony on the grounds of hearsay. Officer Lewis was not called to testify. It appears from what was developed in the record that appellant volunteered the information as to the pistol while in an upset and nervous condition shortly after his arrest.

      . Article 14.03, supra, provides:
      “Any peace officer may arrest, without warrant, persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws.” Under the circumstances of the instant case, see V.T.C.A., Penal Code, Sec. 21.08 (Indecent Exposure).

      . An officer may seize contraband which he sees in plain sight or open view if he is lawfully where he is. See and cf. Alberti v. State, 495 S.W.2d 236 (Tex.Cr.App.1973); Jackson v. State, 449 S.W.2d 279 (Tex.Cr.App.1970); Morrison v. State, 508 S.W.2d 827 (Tex.Cr.App.1974); LeBlanc v. State, 424 S.W.2d 434 (Tex.Cr.App.1968); Casarez v. State, 504 S.W.2d 847 (Tex.Cr.App.1974); Holman v. State, 474 S.W.2d 247 (Tex.Cr.App.1971); Lewis v. State, 439 S.W.2d 351 (Tex.Cr.App.1969).

      . Article 40.06, Vernon’s Ann.C.C.P., provides in part that the trial judge, upon a hearing on a motion for new trial, “shall hear evidence, by affidavit or otherwise, and determine the issue.”

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

        .Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467 (1962).


author: GREEN, Commissioner.

text:
    William Charles ADAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 50469.
    Court of Criminal Appeals of Texas.
    Jan. 14, 1976.
    Rehearing Denied Feb. 4, 1976.
    Donald D. Koons, Dallas, for appellant.
    Henry Wade, Dist. Atty., Gary Love, Dan Pitzer and John Roach, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION ON STATE’S MOTION FOR REHEARING

GREEN, Commissioner.

Our opinion on the original submission of this appeal is withdrawn, and the following opinion is rendered in lieu thereof.

In a trial before a jury, appellant was convicted of the misdemeanor offense of driving while intoxicated. Punishment was assessed at a fine of $50.00 and three days in the county jail, probated.

The record reflects that David Outlaw, an Irving police officer, while on patrol in Irving about 2:45 a. m. on February 23, 1974, noticed a Cadillac automobile being operated in such a manner that he decided to investigate. Appellant was the driver of the car, and Mike Shackleford was a passenger in the front seat. Outlaw testified that he had had much experience with intoxicated men, and that in his opinion appellant was “very intoxicated” and that Shackleford was “moderately intoxicated, not extreme.”

Officer Strum, dispatched to the scene after Outlaw had radioed for a back-up man, also testified that in his opinion both men were intoxicated.

The officers arrested both men and took them to the police station.

Appellant and Shackleford testified, and each denied being intoxicated on this occasion.

The sufficiency of the evidence is not challenged.

The sole contention of appellant on this appeal is that the trial court erred to his prejudice in denying him the right to prove that Mike Shackleford, in a prior trial in city court, was acquitted of the public intoxication charge arising out of the same transaction for which appellant was on trial. Appellant argues that Shackleford’s acquittal was admissible upon the issue of the credibility of the arresting officers’ testimony of the intoxication of appellant and Shackleford. He also argues that the prosecution having injected the alleged intoxication of Shackleford, his arrest and the filing of a complaint against him, appellant should be entitled to show the remainder of the transaction; to-wit, the acquittal of Shackleford of the charge of public intoxication.

On cross-examination of Officer Outlaw, the State’s first witness, appellant brought out that a complaint was filed against Shackleford for public intoxication in connection with this occasion. When the witness was first asked by defense counsel about the filing of such complaint, the State objected on the ground that “Mr. Shackleford is not on trial here today.” The objection was overruled. Further inquiries by defense counsel developed testimony that the complaint as filed misstated the location at which the alleged public intoxication occurred. Thereupon the court excused the jury and appellant offered to prove by Officer Outlaw that in a trial of Shackleford for public intoxication in city court, at which Outlaw had testified, a verdict of not guilty was rendered. Defense counsel argued that this evidence was admissible “as going to the officer’s credibility, and particularly since the State brought it out on direct examination.” The State’s objection that the disposition of Shackle-ford’s case was irrelevant to the trial of the instant case was sustained. Appellant also sought to be permitted to introduce this evidence before the jury by witness Shack-leford, but the State’s objection was again sustained.

Recently, in Walker v. State, Tex.Cr.App., 530 S.W.2d 572 (1975), we quoted with approval from Bacon v. State, 147 Tex.Cr.R. 605, 183 S.W.2d 177 (1944) as follows:

“Upon the trial appellant sought to prove the fact of Chastain’s acquittal. It is well established as a general rule that upon the trial of one charged with crime it is not permissible to show that another jointly or separately indicted for the same offense has been convicted or acquitted. Wharton’s Crim. Evidence, 11 Ed., Vol. 2, p. 1216, Sec. 724; 22 C.J.S. Criminal Law Sec. 784, p. 1334; Giles v. State, 109 Tex.Cr.R. 234, 4 S.W.2d 66; Bell v. State, 33 Tex.Cr.R. 163, 25 S.W. 769; Harper v. State, 11 Tex.App. 1; Walding v. State, 135 Tex.Cr.R. 430, 120 S.W.2d 1052. Cited in the notes under the sections in the textbooks will be found many cases from other jurisdictions supporting the principal announced in the Texas cases (supra).”

We quote further from Walker, supra, as follows:

“It should be noted that there was no special verdict showing that the jury in the Rollins case found the book to be obscene. The jury could have based its verdict on several grounds; for example, that Rollins did not sell the book. If proof of verdicts in other cases could be shown, then there would have to be proof of the reasons a jury reached their verdict. If proof of acquittals were allowed, then it follows that proof of convictions should be allowed.”

In Tucker v. State, 461 S.W.2d 630, we said:

“It is axiomatic that it is inadmissible to prove that another, jointly or separately indicted for the same offense, has been convicted or acquitted. Bacon v. State, 147 Tex.Cr.R. 605, 183 S.W.2d 177; Barton v. State, 172 Tex.Cr.R. 600, 361 S.W.2d 716.”

While Shackleford was not charged with the same offense as appellant, the offense with which he was charged involved intoxication growing out of the same transaction as the charge against appellant.

The elements of the offense of public intoxication set forth in Y.T.C.A. Penal Code, Sec. 42.08, are (1) an individual (2) appears in a public place (3) under the influence of alcohol or any other substance (4) to the degree that he may endanger himself or another. In a trial for public intoxication, it is necessary that the prosecution prove each and all of these elements beyond a reasonable doubt in order to establish a case against the accused. In the absence of proof of any one element, the accused is entitled to an acquittal. The acquittal of Shackleford of public intoxication does not serve to impeach or discredit the officer’s testimony that he was intoxicated. It was proper that the jury in appellant’s trial was not permitted to speculate on the reasons for such acquittal. Neither should any portion of that case be retried in the instant trial in an attempt to show the reasons for such judgment.

The evidence of Shackleford having been acquitted was not admissible for any purpose, and the trial court did not err in refusing to admit it. Walker v. State, supra; Tucker v. State, supra.

The State’s motion for rehearing is granted. The order reversing the judgment is set aside.

The judgment is affirmed.

Opinion approved by the Court.

      . See V.T.C.A. Penal Code, Sec. 42.08.

      o The record reflects that the fact that a complaint was filed against Shackleford was injected into the evidence by the appellant, and not by the State.

      . “Rollins” was the party who had been acquitted in the other trial. The defendant Walker sought to introduce evidence of his acquittal on the issue of contemporary community standards in an obscenity trial.