author: O’BRIEN, Judge.

text:
    Ronnie Lee WILSON, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Sept. 3, 1975.
    Certiorari Denied by Supreme Court Feb. 23, 1976.
    Frank V. Williams, III, Rockwood, for plaintiff-in-error.

      R. A. Ashley, Jr., Atty. Gen., Michael E. Terry, Asst. Atty. Gen., Nashville, H. Kenneth Deatherage, Dist. Atty. Gen., Charles E. Hawk, Asst. Dist. Atty. Gen., Kingston, John C. Crawford, III, Asst. Dist. Atty. Gen., Maryville, for defendant-in-error.
   OPINION

O’BRIEN, Judge.

In a jury trial defendant was convicted of third degree burglary with punishment fixed at not less than three years nor more than four years in the State Penitentiary. He appeals from the judgment.

By his first assignments of error defendant says the trial court erred in permitting the state’s attorney to question him with regard to a purported out of court statement which the state had failed and refused to produce in response to a pre-trial request made in accordance with T.C.A. Sec. 40-2441. He also says it was error to permit a police officer to testify about the contents of this out of court statement.

Defendant has cited T.C.A. Sec. 40-2441, and Chadwick v. State, 219 Tenn. 296, 409 S.W.2d 367, in which a statement against interest by the defendant to a police officer was admitted without complying with the foregoing code section. Defendant also relies on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, which involves suppression of a statement made by a co-defendant admitting commission of the offense with which they were jointly charged.

We do not believe these authorities are applicable to the situation in which the defendant finds himself. This statement made by defendant was not an oral confession or an admission against interest. The statute does not contemplate an exculpatory statement made by a defendant. Moreover, the trial judge in this case did not allow the pre-trial statement made by defendant to be admitted in evidence in this case. A defendant, who testifies on his own behalf, on the trial of a criminal case, may be impeached in the same manner as any other witness. Peck v. State, 86 Tenn. 259, 6 S.W. 389. A witness may be impeached by showing that his present testimony is inconsistent with a prior writing, letter, affidavit, statement to a grand jury, or statement to the police while under arrest. Whartoii’s Criminal Evidence, 13th Edition, Section 468. The United States Supreme Court has recently ruled that a statement made by a defendant to the police, under circumstances rendering it inadmissible in the prosecution’s case in chief, because the defendant had not been warned of his right to remain silent and right to counsel, as required by Miranda, may nevertheless be used to impeach the credibility of the defendant’s trial testimony. See Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1. This is a salutary rule, designed to prevent perjurious testimony by a defendant at trial which we think is applicable in this case. Assignments of error No. 1 and 2 are overruled.

It is contended it was error to permit the state’s attorney to question defendant and one of his witnesses about marijuana found in the automobile in which defendant was riding at the time of his arrest. It is argued that this investigation was not material or relevant to the trial of the case and tended to associate him with the commission of another crime with which he was not charged, all to his prejudice.

We do not find in this record any place where the defendant was questioned about marijuana found in the automobile in which he was riding at the time of his arrest. When defendant was arrested, both he and the co-defendant, Michael Ray Clark, were in the vehicle owned by defendant’s aunt, Christine Phillips, who was also a passenger, riding in the left rear seat. Defendant was driving and Clark was in the right front passenger seat. The officer stated on direct testimony that two marijuana cigarettes were found in the car. Defense counsel asked the aunt what she knew about the marijuana, and if it was hers. On cross-examination she was asked and responded that Mike Clark saw the police and placed the marijuana into the console of the car. This was all the testimony in reference to any marijuana. It rather exonerated than implicated defendant. If anything, it tended to impeach the testimony of Mike Clark who testified for the state. We do not find any prejudice to the defendant. The assignment is overruled.

The judgment of the trial court is affirmed.

DUNCAN, J., concurs.

GALBREATH, J., 3rd member of this panel, did not participate in the decision of this case.


source: Caselaw Access Project

author: FRED H. GILLIAM, Special Judge.

license: Public Domain

text:
    STATE of Tennessee, Appellant, v. Carl LAWSON, Appellee.
    Court of Criminal Appeals of Tennessee.
    Sept. 11, 1975.
    Certiorari Denied by Supreme Court Dec. 1, 1975.
    R. A. Ashley, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, for appellant.
    Frank L. Slaughter, Bristol, for appellee.
   OPINION

FRED H. GILLIAM, Special Judge.

On or about May 1, 1973, Andrew Hicks was arrested and charged with having gaming devices in his possession. On June 26, 1973, Hicks was indicted by the Sullivan County Grand Jury for having in his possession “gambling devices, namely, bingo type pinball machines,” allegedly in violation of Tennessee Code Annotated, Section 39-2006. On July 27, 1973, Hicks plead guilty to the offense of “possession of gambling devices”, contrary to Tennessee Code Annotated, Section 39-2006, and the Court ordered that the three (3) Bally Miss America Pinball Machines which had been confiscated on the date of Hicks’ arrest should be destroyed after the completion of another case in which they would be used in evidence. In addition to the pinball machines taken from Hicks, two (2) Bally Silver Sails and one (1) Bally Circus Queen Pinball machines were confiscated during 1973 from the Tri-Cities Truck-stop which is owned by Hugh Bradshaw. Bradshaw was never prosecuted by the State for his possession of these pinball machines.

At the time these pinball machines were confiscated by the State they were the property of Carl Lawson Enterprises, and they were in the possession of Andrew Hicks and Hugh Bradshaw pursuant to a lease agreement between Lawson Enterprises and Hicks and Bradshaw.

The State petitioned the Criminal Court of Sullivan County for an order to destroy said pinball machines. In opposition thereto, a motion seeking return of the pinball machines was submitted on behalf of the owner lessor, Carl Lawson, the owner of Lawson Enterprises.

Upon the hearing on December 13, 1974, the Honorable Roger E. Thayer, Judge sitting by designation, considered the argument of counsel, pleadings and testimony, and on the 9th day of January, 1975, issued an order dismissing the State’s petition to destroy said machines and directing that said pinball machines be returned to the owner, Carl Lawson.

The sole question presented in this appeal is whether pinball machines can be subject to destruction under the State’s present statutory laws regarding gambling.

The Court is of the opinion that the statutory exemption of pinball machines from the definition of “gambling and gambling device” contained in Tennessee Code Annotated, Section 39-2033, sub-sections (2) and (3), exempts pinball machines from being subject to destruction.

In a case decided on October 19, 1974, in the United States District Court for the Middle District of Tennessee, Nashville Division, where machines of similar description as those confiscated from the Appellee were at issue. The Court specifically held that the machines in question were pinball machines within the meaning of the Tennessee Statute, Tennessee Code Annotated, Section 39-2033, and 18 U.S.C. § 1955, U. S. v. Allen.

Tennessee Code Annotated, Section 39-2033(2) specifically excludes pinball machines from the definition of “gambling”, and if pinball machines are excluded from these definitions, they should be excluded from all penal sanctions encompassed by Tennessee Code Annotated, Section 39 — 2001 and Section 39-2037.

These machines were seized by the State contrary to Tennessee law and Andrew Hicks’ plea of guilty should not prevent the rightful owner, Carl Lawson of Lawson Enterprises, who was not a party to that prosecution, from asserting the illegality of the seizure.

The validity of a city ordinance making it unlawful to possess or display pinball machines was held unconstitutional by the Tennessee Supreme Court in Smith Amusement Company v. Mayor and Board of Commissioners of the City of Chattanooga (1959), 205 Tenn. 712, 330 S.W.2d 320.

All assignments are overruled and the judgment is affirmed.

WALKER, P. J., and O'BRIEN, J., concur.


text:
    Ectlis L. LAWHON, alias, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 10, 1975.
    Certiorari Denied by Supreme Court March 8, 1976.

      William H. Russell, James H. Simpson, Arnold, Winfrey, McMurray & Russell, Lou-don, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, John C. Crawford, III, Asst. Dist. Atty. Gen., Maryville, Charles E. Hawk, Asst. Dist. Atty. Gen., Kingston, for appellee.
   OPINION

O’BRIEN, Judge.

Defendant was convicted of armed robbery and sentenced to ten years in the penitentiary. The sole issue raised on appeal is whether or not the provisions of T.C.A. Sec. 40-2516 require as a matter of law that the jury have in their possession at all times during deliberation a complete written copy of the judge’s instructions.

In this case, the trial judge read a prepared written charge to the jury which was delivered to them when they retired to their deliberations. After approximately three hours the jury made a written inquiry to the court in regard to the punishment for the offense of armed robbery. The jury was returned to the courtroom where clarifying instructions in reference to penalty were reiterated by the trial judge. The jury then retired for further deliberations. Through inadvertence the main portion of the charge was left in the courtroom. The two pages on which they had inquired were taken with them to the jury room. In a very few minutes they returned to announce they found the defendant guilty of armed robbery and fixed his punishment at ten years in the penitentiary.

Neither counsel nor the court have found a case directly on point. In our research, the case of Munson v. State, 141 Tenn. 522, 213 S.W. 916, seems to strike closest to the heart of the problem which confronts us. In that case, the judge, in his regular charge, which was in writing, instructed the jury that if they convicted the defendant of voluntary manslaughter, they would fix his punishment at confinement in the penitentiary from two to ten years. After the case was given to the jury and after they had considered their verdict, they returned, and a member of the jury requested further instructions upon this point. The judge then stated to them orally that they had nothing to do with fixing the punishment of defendant, if they found him guilty of manslaughter; that his punishment was fixed by the law. Later the jury returned a verdict of guilty of manslaughter. Our Supreme Court found that the trial judge had committed error in his original charge by directing the jury to fix the punishment of defendant at from two to ten years, if they convicted him of voluntary manslaughter. The court said that the trial judge had orally given the jury a correct statement of law on punishment, and that the error consisted, not in the substance of what the judge said orally, but the way in which it was said. They declined to reverse the case on what was categorized as a bare technicality which did not affect the merits, and did not injuriously affect the defendant by inducing the jury to agree upon a verdict.

We hold that the sense of the decision in Munson governs the fact of the case at bar. In this case the jury had obviously concluded their deliberations on the substance of the case, that is the guilt or innocence of the defendant. They had considered the evidence and had found him guilty of armed robbery which left nothing more for them to do than to fix the penalty. They made inquiry from the trial judge about the applicable penalty for the offense which they had decided defendant had committed. When they returned to their deliberations they carried with them to the jury room, the written instructions necessary to enable them to fix a penalty commensurate with the offense, in accordance with the applicable law. As it is succinctly stated in McElhaney v. State, 220 Tenn. 532, 420 S.W.2d 643, when a violation of T.C.A. Sec. 40-2516 appears, the threshold question is whether the situation presented is one which is properly within the ambit of the language of the statute. If the situation in issue is determined to be error outside the limits of the statute, that is, collateral to the general charge of the basic substance of the case, the Court may reverse or affirm, depending on the nature of the error, and in such a situation the harmless error statute (T.C.A. Sec. 27-117), may be utilized, where appropriate.

The defendant received the minimum sentence in this case for the offense the jury determined he had committed. He has failed to show he was prejudiced in any manner by the events which occurred in the trial court. It would be improper for us to reverse unless prejudice resulted from the error claimed.

The judgment of the trial court is affirmed.

WALKER, P. J., and FRED GILLIAM, Special Judge, concur.


author: GREENHILL, Chief Justice.

text:
    CITY OF FARMERS BRANCH et al., Petitioners, v. MATSUSHITA ELECTRIC CORPORATION OF AMERICA, Respondent.
    No. B-5551.
    Supreme Court of Texas.
    May 5, 1976.
    Durant, Mankoff, Davis & Wolens, Ronald M. Mankoff, Dallas, for petitioners.
    Thompson, Knight, Simmons & Bullion, Jerry L. Buchmeyer, Dallas, for respondent.
   GREENHILL, Chief Justice.

This case involves an interpretation of Section 10 of Article I of the Constitution of the United States, which provides in part that,

“No State shall, without the Consent of Congress, lay any Imposts or Duties on Imports or Exports . . . ”

The City of Farmers Branch assessed a nondiscriminatory ad valorem tax on merchandise stored in warehouses within its limits. In 1972, it assessed such a tax on the merchandise here in question. It had been imported from Japan and Puerto Rico and was the property of Matsushita Electrical Corporation of America, a wholly owned subsidiary of a Japanese corporation of a similar name.

The property had come to its destination in Farmers Branch, but was still in its original corrugated cartons. Matsushita declined to pay the tax. In this declaratory judgment suit, its contention is that the tax on its property is unconstitutional under the above provision of the Constitution of the United States.

Because of the earlier decision of the Supreme Court of the United States which this court is bound to respect, we at first upheld the position of Matsushita. The Court of Civil Appeals had held the property was not subject to taxation by the city, and we upheld that decision by refusing a writ of error with a notation, “no reversible error.” 527 S.W.2d 768. Upon the same day upon which our court acted, January 14, 1976, the United States Supreme Court announced its decision in Michelin Tire Corporation v. Wages, 423 U.S. 276, 96 S.Ct. 535, 46 L.Ed.2d 495. We thereafter granted a writ error upon rehearing. It is our opinion that under Michelin, the tax of the City of Farmers Branch is not an unconstitutional tax. In the words of the Michelin decision, an “ . . . assessment of a nondiscriminatory ad valorem property tax . is not within the constitutional prohibition against laying ‘any Imposts or Duties on Imports . . . ’ ”

The property which is the subject of the tax consists of Panasonic units and parts manufactured by or for Matsushita in Japan and Puerto Rico. The items were packed in sealed corrugated cartons and were shipped to the United States in sea vans. After the sea vans reached their port of entry, they were shipped by rail to Fort Worth. The seals on the sea vans were broken at Matsushita’s warehouse in Farmers Branch, and the individual cartons were there unloaded and stored. No manufacturing, repairing or servicing is carried on at the Matsushita warehouse. The warehouse is used only to store the merchandise until needed by retail dealers. The disputed items were all in their unopened corrugated cartons.

The “original package doctrine” had its origin in Brown v. State of Maryland, 25 U.S. 262, 6 L.Ed. 419 (1827), in which Chief Justice Marshall wrote:

“When the importer has so acted upon the thing imported that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive characteristic as an import, and has become subject to the taxing power of the state; but while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the constitution.” [Emphasis supplied.]

Brown v. Maryland was enlarged upon in 1871 by'Low v. Austin, 13 Wall. 29, 80 U.S. 29, 20 L.Ed. 517, which is characterized by the Supreme Court in Michelin as “the leading decision of the Court holding that the States are prohibited by the Import-Export clause from imposing a nondiscriminatory ad valorem property tax on imported goods until they lose their character as imports

In Michelin, however, the Supreme Court, upon its own initiative, carefully reviewed the Brown and the Low v. Austin decisions; and it concluded that, “Low v. Austin was wrongly decided. That decision therefore must be, and is, overruled.”

We understand the holding of Michelin to be that where the tax is not upon the importation or movement of imported goods, and where the goods are no longer in transit, the goods are subject to the imposition of nondiscriminatory ad valo-rem property taxation by the states and their subdivisions.

We agree with the Supreme Court that there is no reason why an importer should not bear his share of the cost of services such as police and fire protection along with his competitors who handle only domestic goods. As the Supreme Court said in Michelin, the Import-Export clause “ . cannot be read to accord imported goods preferential treatment that permits escape from uniform taxes imposed without regard to foreign origin for services which the State supplies.”

The ad valorem tax imposed by Farmers Branch is clearly nondiscriminatory and applicable to all such stored goods whether imported or not. The property of Matsushi-ta is therefore subject to the tax.

In the alternative, Matsushita contends that because the Supreme Court changed the law in Michelin in 1976, that it should not be liable for taxes assessed for the year 1972 and beyond; i. e., that the Michelin decision should not be given retroactive effect, and that it should only be liable for taxes assessed after January 14, 1976, the date of the Michelin decision. We disagree for the following reasons.

First, the taxes assessed by Gwinnett County, Georgia, in the Michelin case were for the years 1972 and 1973, the same periods involved here. The Supreme Court upheld the judgment of the Supreme Court of Georgia that the taxes were valid, and at least by inference, that they were collectible. Michelin filed a motion for rehearing in the Supreme Court, and we were furnished with a copy of it. In the motion, Michelin limited its argument to the retroactive effect of the Michelin decision, and it urged the Supreme Court to declare its opinion to be prospective only because it had changed the law in effect for 100 years. The Supreme Court overruled Michelin’s motion.

Second, Matsushita contends that it is inequitable to apply the Michelin decision and our decision as applying to taxes assessed in 1972 because under Low v. Austin and other decisions, Matsushita and others then considered their goods exempt from •taxation. At the same time, however, Mat-sushita was plainly informed and put upon notice by the City of Farmers Branch that the city considered that the goods were taxable, and that Low v. Austin and similar cases were wrongly decided and should be overruled. There is no basis for a contention that Matsushita relied on any previous action or non-action of the city because the city assessed the Matsushita property for taxes at its first opportunity.

And thirdly, the reasons for the collecti-bility of the nondiscriminatory tax as to Matsushita for the years in question are prominent in the Michelin decision. Matsu-shita’s property during such period was afforded the same public services, including police and fire protection, as were afforded to their competitors and to others in the community; and there is no great inequity in their having to bear their same fair and equal share of such expense; i. e., the nondiscriminatory taxes assessed during such period.

The judgments of the trial court and the Court of Civil Appeals are reversed. The injunction issued by the trial court enjoining the assessment and collection of the taxes involved is dissolved; and judgment is here rendered that the merchandise in question was and is subject to the nondiscriminatory ad valorem personal property taxes.


text:
    CITY OF FARMERS BRANCH et al., Petitioners, v. AMERICAN HONDA MOTOR COMPANY, INC., Respondent.
    No. B-5550.
    Supreme Court of Texas.
    May 5, 1976.
    Durant, Mankoff, Davis & Wolens, Ronald M. Mankoff, Dallas, for petitioners.

      Carrington, Coleman, Sloman, Johnson & Blumenthal, Marvin S. Sloman and Peter Tierney, Dallas, for respondent.
   GREENHILL, Chief Justice.

This is a companion case to our Cause Number B-5551, City of Farmers Branch v. Matsushita Electric Corp. of America, decided this day. 537 S.W.2d 452. The cases were submitted and argued together in this court.

The Honda warehouse in Farmers Branch stores parts and accessories for Honda automobiles, motorcycles, and outboard motors. The parts and accessories were imported from Japan in sealed sea vans. As in Mat-sushita, Farmers Branch assessed ad valo-rem personal property taxes on these items for the year 1972. Honda declined to pay the tax and brought this suit for a declaratory judgment that the merchandise was tax-exempt under the import-export clause, Section 10 of Article I of the United States Constitution.

The questions are the same as those presented in Matsushita, and the disposition of those questions in Matsushita control the disposition of this cause.

The judgments of the trial court and the Court of Civil Appeals, 527 S.W.2d 776, are reversed; the injunction entered by the trial court against the assessment and collection of the taxes is dissolved; and judgment is here rendered that Honda is subject to the nondiscriminatory ad valorem taxes assessed by Farmers Branch.


author: ROBERTS, Judge. DOUGLAS, Judge

text:
    David E. PEREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 51813.
    Court of Criminal Appeals of Texas.
    June 9, 1976.
    Thomas Rocha, Jr., San Antonio, for appellant.
    Ted Butler, Dist. Atty., E. Dickinson Ry-man, Gus E. Wilcox and Susan Spruce, Asst. Dist. Attys., San Antonio, Jim D. Vol-lers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

Appellant was convicted by a jury for burglary under the former Penal Code. The punishment, enhanced under Art. 62, Vernon’s Ann.P.C., was assessed by the court at twelve (12) years.

We are confronted at the outset with fundamental error in the court’s charge which must be reviewed in the interest of justice. Art. 40.09(13), Vernon’s Ann.C.C.P. Harris v. State, 522 S.W.2d 199, 202 (Tex.Cr.App.1975).

The first paragraph of the charge states that the appellant stands accused of burglary with intent to commit theft, alleged to have been committed in Bexar County, Texas, on or about August 9, 1973. The appellant’s plea of not guilty is then noted.

The charge then defines “burglary,” “breaking,” “house,” “entry into a house,” and “theft.” The charge instructs the jury that the entry must be proved, beyond a reasonable doubt, to have been made with the intent to commit theft. The jury is then instructed that the ownership of the property may be alleged either in the owner of the property or in one having care, custody, and control of the property.

The charge next tells the jury that the indictment is not evidence of guilt, that matters not in evidence are not to be considered during the jury’s deliberations, that a foreman is to be chosen as soon as the jury retires, that the jurors are the exclusive judges of the facts, even though they must receive the law from the court, and that the burden of proof is on the State beyond a reasonable doubt.

The charge then instructs the jury generally on the law of circumstantial evidence and on the right of the appellant not to testify.

Finally, the charge notes, over the signature of the trial judge, that suitable verdict forms are attached to the charge.

The foregoing summary makes clear that the charge totally fails to apply the law of burglary to the facts of this case. The jurors were not instructed under what circumstances they should convict or acquit the appellant. This error goes to the very basis of the case and requires reversal. See Harris v. State, supra (and authorities there cited), which establishes this to be a rule of many years’ standing in this Court.

Accordingly, the judgment is reversed and the cause remanded.

DOUGLAS, Judge

(dissenting).

Neither appellant nor his counsel complains of the court’s charge upon which this case is reversed. A brief by appellant’s counsel admits that the appeal is frivolous. The majority reverses this conviction on the grounds that the trial court did not apply the law to the facts of the case. In applying the law to the facts more specifically, the instruction in substance would have been that the jury must believe that on the 9th day of August, 1973, Perez entered the house of Gonzalez without his consent with intent to commit theft.

The indictment charged in substance as follows:

“DAVID E. PEREZ hereinafter called Defendant, on or about the 9th day of AUGUST, A.D., 1973, in the County and State aforesaid, did then and there unlawfully, by force, break and enter the house occupied and controlled by JOSEPH F. GONZALEZ, hereinafter called complainant, without the consent of the said complainant, and with the intent on the part of him the said defendant to then and there fraudulently take from said house corporeal personal property therein being, and belonging to the said complainant, from the possession of the said complainant, and without the consent of complainant and with the intent on the part of him the said defendant to deprive said complainant, the owner of said property of the value thereof, and to appropriate the same to the use and benefit of him the said defendant; . . .”

A prior conviction for felony theft was alleged for enhancement purposes.

Joseph F. Gonzalez testified that on August 9, 1973, someone without-his permission broke into his residence in San Antonio and stole wedding gifts, clothing, rings and a radio. Fingerprints of appellant were taken from a silverware box which was located inside the house.

The following verdict was returned:

“We, the jury, find the Defendant, David E. Perez Guilty of the offense of Burglary with Intent to Commit Theft, as charged in the indictment. (Emphasis Supplied)
/s/ Otho L. Jordan. Jr. FOREMAN”
The indictment was read to the jury. The jury knew that appellant was charged with the burglary of the Gonzalez home from the indictment, the proof and the court’s charge. No other, not even the pri- or, offense was mentioned before the jury.
Omitting formal and non-pertinent parts, the court submitted the following:
“CHARGE OF THE COURT
“The Defendant, David E. Perez, stands charged by indictment with the offense of Burglary with Intent to Commit Theft, alleged to have been committed in the County of Bexar and State of Texas on or about the 9th day of August, A.D., 1973. To this charge the Defendant has pleaded ‘Not Guilty.’
U* * *
I.
“You are instructed that the offense of burglary is constituted by entering a house by force and breaking with the intent to commit the crime of theft. Further, you are instructed that burglary is constituted when one, with the intent to commit theft, by breaking, enters a house in the daytime.
II.
“By the term ‘breaking’ is meant that the entry must be made with actual force applied to the house; the slightest force, however, is sufficient to constitute breaking.
U* * *
IV.
“By the term ‘entry into a house’ is meant every kind of entry but one made with the free consent of the occupant or one authorized to give such consent.
V.
“ ‘Theft’ is the fraudulent taking of corporeal personal property belonging to another from his possession, or from the possession of some person holding the same for him, without his consent, and with the intent to deprive the owner of the value of the same and appropriate it to the use and benefit of the party taking.
VI.
“You are further instructed that the indictment in this case having charged that the burglarious entry was made with the intent to commit the crime of theft, before you would be warranted in finding a verdict of guilty you must be satisfied from the evidence, beyond a reasonable doubt, that the entry, if any, was made with the intent to commit the crime of theft.” (Emphasis Supplied)

The court also gave the usual instruction on circumstantial evidence as follows:

“You are instructed that in this case the State relies upon circumstantial evidence for a conviction.
“In order to warrant a conviction of a crime on circumstantial evidence, each fact necessary to the conclusion sought to be established must be proved by competent evidence, beyond a reasonable doubt; all the facts (that is, the facts necessary to the conclusion) must be consistent with each other and, taken together, must be of a conclusive nature, leading on the whole to a satisfactory conclusion and producing, in effect, a reasonable and moral certainty that the accused, acting alone or as a principal with another or others, committed the offense charged.
“But in such cases it is not sufficient that the circumstances coincide with, account for, and therefore render probable the guilt of the defendant. They must exclude, to a moral certainty, every other reasonable hypothesis except the defendant’s guilt; and unless they do so, beyond a reasonable doubt, you will find the defendant ‘not guilty.’ ”

The instructions to the jury refer to the offense charged in several places. The jury knew what offense he was charged with and found him guilty of that offense. No objection was made to the court’s charge and no injury has been shown to appellant. No complaint has been made about the charge. Even though the court should have applied the law to the facts more specifically the failure does not present reversible error in this case under Article 36.19, V.A.C. C.P. This charge taken as a whole substantially applies the law to the facts.

Harris v. State, 522 S.W.2d 199 (Tex.Cr.App.1975), is relied upon by the majority. If that case is authority for reversal it should be overruled. A past mistake on the part of the Court is not a justification for committing the same mistake again. A court-made rule can be changed by that court. There is no probability that the jury did not know for what offense they returned the verdict.

As stated by appellant in his brief, the appeal is frivolous. The judgment should be affirmed.


author: ROBERTS, Judge.

text:
    Ex parte Eden P. FLORES.
    No. 51830.
    Court of Criminal Appeals of Texas.
    June 9, 1976.

      Connell Ashley, Odessa, for appellant.
    Dennis Cadra, Asst. Dist. Atty., Odessa, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an application for writ of habeas corpus filed pursuant to Art. 11.07, Y.A.C. C.P.

Petitioner was convicted of the unlawful sale of heroin in the 161st District Court of Ector County and assessed a two hundred fifty (250) year sentence on December 29, 1970. The conviction was affirmed on appeal. See Flores v. State, 509 S.W.2d 580 (Tex.Cr.App.1974).

Petitioner has filed an application for writ of habeas corpus with the trial court, alleging, in part, that the State admitted into evidence a void prior conviction at the punishment phase of his 1970 trial and that this conviction was considered by the jury in assessing punishment. The petitioner alleges that he was found guilty in Midland County of the offense of possession of marihuana in Cause Number 2071, for which he received probation in 1955; however, his probation was revoked on November 21, 1957, at a time when he was without counsel, indigent, and had not waived his right to counsel at the probation revocation proceeding. This Court remanded the case back to the trial court for habeas corpus evidentiary hearing on this issue. During the evidentiary hearing, the petitioner testified that he was not represented by counsel during his probation revocation proceeding; this fact is uncontroverted by the State. The trial records of the revocation proceeding are silent as to counsel, and the trial court made an affirmative finding that petitioner was not so represented by an attorney. The trial court further made a personal finding that it was not the “common practice” for the courts to appoint counsel for persons in revocation proceedings. Based upon the record before this Court, we conclude the trial court’s findings that petitioner was not represented by counsel are correct. See Ex parte Herrera, 493 S.W.2d 809 (Tex.Cr.App.1973); Ex parte Bird, 457 S.W.2d 559 (Tex.Cr.App.1970); Bray v. State, 531 S.W.2d 633 (Tex.Cr.App.1976).

It is, of course, well settled that criminal defendants are entitled to counsel at probation revocation proceedings under the Sixth Amendment to the United States Constitution. See Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Ex parte Bird, supra; Ex parte Jentsch, 510 S.W.2d 320 (Tex.Cr.App.1974); Ex parte Shivers, 501 S.W.2d 898 (Tex.Cr.App.1973). Under the record before this Court, this probation revocation proceeding is therefore void. Furthermore, it is also well settled that void prior convictions should not be admitted at the punishment phase of a trial. See United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Ex parte Olvera, 489 S.W.2d 586 (Tex.Cr.App.1973).

The only question remaining in this case is whether or not the admission of the revocation proceeding constituted harmful error under the facts of this case. According to the record before this Court, the original probation and the subsequent revocation were the only criminal proceedings admitted into evidence before the jury during the punishment phase of the trial. However, the record reflects, and petitioner admitted during his testimony, that he was represented by counsel at the original trial which resulted in the granting of probation.

Therefore, we haye the unique situation in which the original trial and order of probation are valid, and were admissible before the jury as part of petitioner’s criminal record. See Art. 37.07, V.A.C.C.P. Even had this probation not been revoked, the evidence concerning the original trial would have been admissible. See Moon v. State, 509 S.W.2d 849 (Tex.Cr.App.1974); Glenn v. State, 442 S.W.2d 360 (Tex.Cr.App.1969), and cases cited therein.

In determining whether the admission of improper evidence constitutes harmful error, we must look to the facts and circumstances of each case. See, e. g., Madeley v. State, 488 S.W.2d 416 (Tex.Cr.App.1972); McComb v. State, 488 S.W.2d 105 (Tex.Cr.App.1972); Williams v. State, 493 S.W.2d 863 (Tex.Cr.App.1973); Clark v. State, 496 S.W.2d 83 (Tex.Cr.App.1973). After examining the record in this case and the record on original appeal, we construe the following factors to be highly material in determining the issue of harmful error in this case:

1) The petitioner received a two hundred fifty (250) year sentence from the jury;
2) The prior conviction was for a similar offense: a violation of the narcotics laws;
3) As a result of this probation revocation proceeding, the petitioner was sentenced for the only time (at least according to this record) to confinement in the state penitentiary, thus making him an ex-convict and unable to apply for probation in this case;
4) The order of revocation and formal sentence entered in the revocation proceeding contain the recitation that petitioner’s probation was revoked because “ten sticks of cigarettes of marihuana was [sic] removed from his pocket and he was in a high state of intoxication due to the smoking of marihuana and drinking of alcoholic beverages,” such recitation clearly indicating that petitioner was guilty of a third violation of the Texas narcotics laws;
5) During the jury argument at the punishment phase of the trial, the State stressed that petitioner had not rehabilitated himself as a result of his revocation, and specifically argued that “The guy (petitioner) has had three chances ... he has proven to us and prosecution, the people I represent that he cannot be rehabilitated.”

These factors clearly indicate a substantial probability that the admission of the revocation proceeding before the jury was harmful to the petitioner Therefore, although the error is to the penalty alone, the petitioner is entitled to an entirely new trial. See Ex parte Olvera, supra.

The relief is granted, and the petitioner is ordered released to the sheriff of Ector County to answer the indictment in Cause Number 5115 in the 161st District Court.

It is so ordered.

      . We have reviewed all of the other contentions raised by petitioner’s application and are of the opinion that they are without merit.

      . Even though the record before this Court clearly indicates that petitioner did not object to the admission of this prior conviction at the time of his original trial in 1970, such a failure to object is not a waiver since at the time of that trial the United States Supreme Court had not yet ruled directly upon the admissibility of void prior convictions used for punishment purposes only. See Ex parte Casarez, 508 S.W.2d 620 (Tex.Cr.App.1974); U. S. v. Tucker, supra; Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972). Compare Simmons v. State, 456 S.W.2d 66 (Tex.Cr.App.1970).

      . This Court may take judicial notice of its records “in the same, or related proceedings involving the same or nearly the same parties.” Huffman v. State, 479 S.W.2d 62, 68 (Tex.Cr.App.1972).


author: ODOM, Judge.

text:
    Pauline ROBERTS, Appellant, v. The STATE of Texas, Appellee.
    No. 52032.
    Court of Criminal Appeals of Texas.
    June 9, 1976.
    Bob Kuhn, Austin, for appellant.
    Robert 0. Smith, Dist. Atty., and Stephen H. Capelle, Asst. Dist. Atty., Austin, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from an order revoking probation.

On July 6, 1972, appellant was convicted of theft. Punishment was assessed at ten years. Imposition of sentence was suspended and probation granted. Among the conditions of probation was the requirement that she avoid injurious or vicious habits, including the use of narcotic or habit-forming drugs and alcoholic beverages.

Subsequently the State filed a motion to revoke appellant’s probation, alleging that “she violated the provisions of her probation in that the urine specimen the defendant submitted on August 6,1974, was found to contain morphine.”

The trial court, after hearing evidence on the motion to revoke, found that the allegation was true, revoked appellant’s probation, and reduced the punishment to two years. Appellant contends that the evidence presented at the hearing was insufficient to support the trial court’s findings and order.

It was proved at the hearing and the State stipulated that on August 6, 1974, appellant possessed a valid prescription for a drug containing codeine that had been given to her by an Austin dentist during treatment of a dental problem.

The State contends that the evidence showed that appellant’s urine contained morphine, not codeine. The State relies wholly upon the testimony of Ed Gleason, laboratory supervisor of the Adult Probation Department, Travis County.

Gleason testified that he had performed spectrophotometer analysis upon appellant’s urine, using an emit spectrophotometer machine. He was properly qualified as an expert in the theory and use of this machine. He interpreted the results of the test he performed upon appellant’s urine as showing the urine contained “morphine or an opiate derivative.” He agreed, however, that solely upon the basis of this test it was “impossible” to determine whether the urine contained morphine or codeine.

Gleason then traveled to the Texas Medical Center in Houston, where there was a morphine analyzer operating on a spectro-florometer. This machine, unlike the emit spectrophotometer, was capable of determining whether urine contained morphine or codeine.

Some unnamed person tested appellant’s urine upon this machine while Gleason was present. Appellant’s objection to the introduction of the hearsay results of the test was overruled. Appellant asked to take the witness on voir dire examination and adduced the following:

“Q. [by defense counsel]: Mr. Gleason, have you operated this machinery that you are talking about now?
“A. [by Gleason]: The morphine analyzer?
“Q. Yes.
“A. No, I haven’t.
“Q. You have never operated one?
“A. No, sir.”

After testifying that the test showed there was morphine in the urine sample, Gleason testified as follows upon cross-examination:

“Q. [by defense counsel]: What does —well, tell me on how many occasions that you have observed this test being run — the same type of test that was used?
“A. [by Gleason]: This same — particular specimen?
“Q. No, with this particular kind of machine.
“A. On four other occasions.
“Q. And where did you receive your training concerning the use and operation of this machine?
“A. I didn’t receive any training on that machine.
“Q. You’ve never received any training on the use and operation of this machine?
“A. On the morphine analyzer, no, sir.
“Q. Did you rely on what the other person who was operating the machine told you concerning the analysis of this urine specimen?
“A. The explanation — I actually did visualize the reading on the screen, the print outs.
“Q. But the reading itself would not tell you anything unless you knew how the machine functioned or how it worked.
“A. Yes, sir.
“Q. Is that correct?
“A. Yes, sir.”

Thus, Gleason was not qualified as an expert in the theory or use of this type of machine. He relied upon the statements of the anonymous operator of the machine, who may or may not have been such an expert, and a chart to interpret the result of the test performed using the machine. Both were hearsay. Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93.

It is not the mere fact that Gleason did not personally operate the machine that rendered his testimony inadmissible. Rather, his lack of expertise with respect to the machine and his reliance upon the assumed expertise of others deprived appellant of any meaningful cross-examination upon the accuracy of the machine.

In Kent v. State, 374 S.W.2d 671 (Tex.Cr.App.), a properly qualified expert testified that other qualified experts under his supervision had performed the relevant tests. This Court held:

“A chemist under whose supervision laboratory analysis of certain specimens are made, by another chemist in said laboratory, may testify from records of the laboratory as to the results thereof.”

Accord, Alvarez v. State, 508 S.W.2d 100 (Tex.Cr.App.); Norris v. State, 507 S.W.2d 796 (Tex.Cr.App.); Boatright v. State, 472 S.W.2d 765 (Tex.Cr.App.). In addition, the custodian of the business records of a laboratory may testify as to test results under circumstances in compliance with Art. 3737e, V.A.C.S., and Coulter v. State, 494 S.W.2d 876 (Tex.Cr.App.). Norris v. State, supra.

In the instant case, Gleason was not an expert upon this type of machine, the person who operated the machine was not shown to be an expert, the latter was not under the supervision of the former, and no records from the laboratory where the test was performed were either introduced into evidence or even seen by the witness. The objection to this portion of Gleason’s testimony should have been sustained and the Houston test results should not have been admitted into evidence.

We will presume that the trial court disregarded this evidence, and will next determine whether the remainder of the evidence was sufficient to support the revocation of appellant’s probation. Kubat v. State, 503 S.W.2d 258 (Tex.Cr.App.); Johnson v. State, 498 S.W.2d 198 (Tex.Cr.App.); Smith v. State, 494 S.W.2d 873 (Tex.Cr.App.).

The only other evidence was the result of Gleason’s emit spectrophotometer analysis, which was properly admitted. Such result was that appellant’s urine contained either morphine or codeine, and it was impossible to determine which, and as stated above, appellant was at the time under the prescribed use of a drug containing codeine. The evidence was insufficient to support the revocation order. The entering of same was therefore an abuse of discretion.

The order revoking probation is set aside and the cause is remanded.

      . A term of appellant’s probation required her to submit urine specimens.

      . Technically, the motion to revoke did not allege a violation of the referred to condition of probation. The terms of probation prohibited the use of narcotic drugs, not the presence of metabolic products of such drugs in the urine.


author: CURTISS BROWN, Chief Justice.

text:
    KING SON WONG et ux., Relators, v. Honorable Jack SMITH et al., Respondents.
    No. 1378.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 14, 1976.
    Opinion on Resubmission May 19, 1976.
    Jack Edward Love, Houston, for relator.
    John P. Forney, Jr., Eastham, Watson, Dale & Forney, O. W. Bussey, Jr., Thomas P. Sartwelle, Russell H. McMains, Fulbright & Jaworski, Houston, for respondent.
   CURTISS BROWN, Chief Justice.

This is an original proceeding in which the relators seek writs of mandamus and prohibition.

We feel that a detailed examination of the facts which led to this original proceeding is essential. In 1971 King Son Wong and Bobbie Joan Wong (relators) were injured in a collision with a truck owned by the Carnation Company (the Company) and driven by Ben Johnson. The Wongs subsequently filed suit in the district court of Harris County against Johnson and the Company. About the time the suit was filed, the Wongs discharged their former attorneys, Wilbert K. (Bert) Gripp and Marvin S. (Buddy) King, and retained Homer T. Bouldin to represent them. Gripp and King later intervened in the suit, seeking attorney’s fees. About the time the trial began, the intervenors’ cause of action was severed by agreement from the cause in chief. The Wongs’ case was tried in 1973, and the jury answered the vital liability issues in their favor. However, based on the jury’s answers to certain defensive special issues, the court entered judgment for the Wongs for an amount less than their damages found by the jury. On appeal to this court, we reversed the judgment of the trial court and rendered judgment for the Wongs for the full amount of their damages. See Wong v. Carnation Co., 509 S.W.2d 385 (Tex.Civ.App.—Houston [14th Dist.]), writ ref’d n. r. e., 516 S.W.2d 116 (Tex.Sup.1974). An application for writ of error was refused by the supreme court in accordance with a per curiam opinion, and we issued a mandate to the trial court.

Shortly after the mandate was received, Johnson and the Company filed in the trial court a “Motion for Instructions on Payment of the Judgment,” asking to whom the judgment should be paid. Although at the hearing on the motion the court apparently instructed Johnson and the Company to pay the judgment in strict accordance with its terms, no written order was entered at that time. A short time later the Wongs’ attorney, Bouldin, died. The Wongs subsequently retained their present attorney, Jack Edward Love.

At this point Johnson and the Company filed a bill of interpleader in the Harris County district court and tendered to the District Clerk the full amount of the Wongs’ judgment against them plus interest to that date. Named as defendants were the Wongs, the Wongs’ attorney, Love, the Wongs’ former attorneys Gripp and King, the attorney representing Gripp and King in the severed case, William 0. Bussey, Jr., and the independent executrix of the estate of the Wongs’ former attorney Bouldin, Mrs. Virginia Bouldin. Ultimately Love, Bussey, and Bouldin disclaimed in that suit, leaving as defendants only the Wongs and the former intervenors, Gripp and King.

Shortly after the filing of the interpleader suit, the Wongs’ attorney moved the court in the original case to enter a written order in response to the “Motion for Instructions on Payment of the Judgment” and at the same time requested the District Clerk to prepare and issue a writ of execution on the judgment. Execution did issue, and the Sheriff of Harris County levied on lands belonging to the Company.

The interpleader suit was subsequently assigned to the same court in which the original case had been tried: the 189th District Court, Honorable Jack Smith presiding. Judge Smith, acting in the original case, signed an order instructing Johnson and the Company

“to pay the entire amount of the judgment rendered herein by the 14th Court of Civil Appeals and approved finally by the Supreme Court of Texas to the persons, and only to the persons, designated therein; to wit: KING SON WONG and BOBBIE JOAN WONG. . . .”

However, having learned that the Wongs were proceeding with execution on the judgment, Judge Smith appended to the order the following words:

“and it appearing to the court that after the above hearing but prior to entry of this judgment such funds have been paid into the registry of the court no execution shall issue.”

After this order was signed, the Company received notice of an upcoming Sheriff’s sale of their property, which sale was pursuant to the previously issued writ of execution. Johnson and the Company thereupon filed, under the docket numbers of both the original suit and the interpleader suit, a motion to quash the Sheriff’s sale. Judge Smith granted this motion, quashing the Sheriff’s sale, the levy, and the writ of execution, and ordered that “all proceedings to levy execution on any judgment in Cause No. 850,969 [the original suit] shall be and are hereby terminated and quashed.

Johnson and the Company thereafter moved for discharge from the interpleader suit and for the recovery of costs, expenses, and attorney’s fees. Judge Smith denied the recovery of costs, expenses, and attorney’s fees, but did order that Johnson and the Company be discharged from the suit.

It is in this posture that the Wongs, as relators, filed this original proceeding asking this court to issue these writs prohibiting Judge Smith and all of the remaining parties from taking any further action designed to frustrate relators’ attempts to obtain execution of their judgment in the original suit. It is our opinion that such writs are called for in this case.

The rule in Texas is that

“a bill of interpleader comes too late when application therefor is delayed until after judgment has been rendered in favor of one of the claimants of the fund, and this is especially true where the holder of the fund had notice of the conflicting claims prior to the rendition of such judgment and an opportunity to implead the adverse claimants in the suit in which such judgment was rendered.”
United Producers’ Pipe Line Co. v. Britton, 264 S.W. 576, 578 (Tex.Civ.App.—El Paso 1924, writ ref’d).

Accord, Farmers State Bank of Meridian v. National Fire Ins. Co., 169 S.W.2d 545 (Tex.Civ.App.—Waco 1943, no writ); Nash v. McCallum, 74 S.W.2d 1046 (Tex.Civ.App.—El Paso 1934, no writ). See also Annot., 108 A.L.R. 267, 275-76 (1937); 48 C.J.S. Inter-pleader § 23 at 70 (1947).

We feel that the above rule controls the instant case. Johnson and the Company waited to file their interpleader until after the judgment against them had become final, thus rendering them independently liable to relators. Not only did Johnson and the Company know of other possible claims against relators without joining the potential claimants as parties to the original suit, they agreed to sever the intervention action of two of the claimants from the main case. In such a situation it is manifest that the equitable remedy of interpleader should not be available.

Our judgment in the original suit recited the following:

“It is ordered, adjudged and decreed by the Court that plaintiff, King Son Wong, do have and recover of and from defendants, Carnation Company and Ben Johnson, the sum of . . . , for which let execution issue.
“It is further ordered, adjudged and decreed by the Court that plaintiff, Bobbie Joan Wong, do have and recover of and from defendants, Carnation Company and Ben Johnson, the sum of . . . , for which let execution issue.”

The actions of Judge Smith in preventing execution of our judgment and in entertaining the interpleader suit are an interference with the jurisdiction of this court. See Nash v. McCallum, supra. We may issue any writ necessary to protect our jurisdiction. Tex.Rev.Civ.Stat.Ann. art. 1823 (1964).

The Honorable Jack Smith, Judge of the 189th District Court, is ordered to vacate his orders quashing the Sheriff’s sale, the levy, and the writ of execution, and prohibiting execution of the judgment in Cause No. 850,969, and he is prohibited from taking any further action which will interfere with the enforcement and collection of the judgment in that case.

Writs of mandamus and prohibition ordered issued.

ON RESUBMISSION

By way of a motion to vacate or in the alternative for rehearing, respondent Judge Jack Smith has alleged that before the rendition of our former judgment in this cause on April 14, 1976 he received no notice of the pendency before this court of relators’ petition for writs of mandamus and prohibition. We will assume that Judge Smith received neither our letter of January 16, 1976 nor the brief of respondents Ben Johnson and the Carnation Company, mailed to him on April 2, 1976 by counsel for respondents. On the basis of the supreme court’s holding in Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926), we ordered the cause resubmitted and have now heard argument from all interested parties, including Judge Smith. An extensive statement of the facts of this case is contained in our initial opinion, and therefore we will not repeat them here.

Judge Smith’s sole remaining contention is that our decision in this case should be controlled by an agreement entered into at a pre-trial conference. He states that

“it was agreed by all parties, through their attorneys of record, that the intervention would be severed, and if the Wongs prevailed and secured a judgment against defendants, a disposition of the intervention suit would be made before any disbursement of the proceeds of any judgment was made to any of the parties. This agreement was made in open Court and was subsequently reduced to writing by dictating the agreement and stipulation to the court reporter in my chambers.”

Judge Smith also says that no one ever requested that the agreement be transcribed from the court reporter’s shorthand, and that his notes have, unfortunately, been destroyed.

When judgment was rendered in the principal cause the judgment prepared by the attorneys for the Carnation Company and Johnson did not include any reference to any agreement that it would not be enforceable as any other final judgment. On the contrary, it appeared in every way to be a valid and enforceable final judgment. When the original cause was appealed to this court no mention or claim was made by anyone that such agreement existed. Had such agreement been brought to our attention a question would have been presented as to whether the judgment was final and appealable. Our judgment, reciting that execution should issue, was duly rendered and furnished to all parties. No contention was made on motion for rehearing or on any occasion that an agreement existed which impaired the enforceability of our judgment. Application for writ of error was made to the Supreme Court of Texas without any claim that any such agreement existed. Following refusal of the application by the supreme court for “no reversible error” by per curiam opinion, 516 S.W.2d 116 (Tex.Sup.1974), our mandate duly issued. No such agreement was called to our attention at that time, nor motion made to modify or recall our mandate.

The defendants in the original cause, Carnation Company and Johnson, filed a “Motion Requesting Instructions on Payment of the Judgment.” No claim was made in such motion of any agreement that would affect the enforceability of the judgment. The trial court initially ordered the judgment to be enforced in accordance with its terms without making any notation or claim of a contract impairing the enforceability of the final judgment. A bill of in-terpleader was filed by Carnation Company and Johnson without any allegation of the existence of such agreement. The court ordered the execution quashed. In so doing the court made no finding or any mention whatsoever of such agreement. On the original submission of this original proceeding all parties (except Judge Smith) appeared and fully argued this matter and never made any claim that such agreement existed or that our judgment was impaired by any outstanding contractual agreement between the parties.

It is untimely to ask the court to enforce this agreement at this late date. It is not necessary to consider the effect of Tex.R. Civ.P. 11. Our judgment has long since become final and its terms are quite specific. Our mandate has issued in accordance with law. Were we now to undertake to enforce such an agreement we would do damage to the finality of all judgments.

In Southern Pacific Transportation Co. v. Stoot, 530 S.W.2d 930 (Tex.Sup.1975), it was well said:

“Delay haunts the administration of justice. It postpones the rectification of wrong and the vindication of the unjustly accused. It crowds the dockets of the courts, increasing the costs for all litigants, pressuring judges to take short cuts, interfering with the prompt and deliberate disposition of those causes in which all parties are diligent and prepared for trial, and overhanging the entire process with the pall of disorganization and insolubility.” Id. at 931.

It being too late to raise the matter of the agreement at this time, we, for the reasons stated above and in our initial opinion, order writs of mandamus and prohibition issued.


author: WARD, Justice.

text:
    CHEVRON OIL COMPANY, a California Corporation d/b/a Standard Oil Company of Texas, Appellant, v. CITY OF EL PASO, a Municipal Corporation, et al., Appellees.
    No. 6466.
    Court of Civil Appeals of Texas, El Paso.
    April 20, 1976.
    Rehearing Denied May 26, 1976.

      Scott, Hulse, Marshall & Feuille, J. F. Hulse, James T. McNutt, Jr., Ted Painter, El Paso, for appellant.
    John C. Ross, Jr., City Atty., Wade Adkins, Michael F. Ainsa, Bruce Yetter, David J. LaBrec, Asst. City Attys., Peticolas, Lus-combe, Stephens & Windle, Wayne Windle, Harry Lee Hudspeth, El Paso, for appellees.
   OPINION

WARD, Justice.

The Appellant, Chevron Oil Company, filed suit for a declaratory judgment against the Appellees, the City of El Paso and its City Council, alleging that ordinances controlling the routes and methods to be used in transporting flammable liquid products within the City limits were arbitrary, unreasonable, unconstitutional and void, and sought a declaratory judgment to that effect. Appellant further asked for injunctive relief from the enforcement of the penal features of those ordinances. The case was tried without a jury, and at the close of the Appellant’s case, the Court sustained the Appellee’s plea to the jurisdiction of the Court and granted Appellee’s motion for judgment. Findings of fact and conclusions of law were filed. We affirm insofar as the trial Court dismissed the Appellant’s cause of action for want of jurisdiction.

The ordinances are part of the traffic and fire prevention ordinances for the City of El Paso. They require that all vehicles transporting more than 50 gallons of flammable liquids operate only upon certain designated routes or streets within the City. Vehicles carrying 1500 gallons or less' may leave these designated routes only by the shortest route to deliver to retail service stations or to bulk oil stations. Vehicles carrying more than 1500 gallons of flammable liquids cannot depart or deviate from the designated routes to deliver to retail service stations, but they are permitted to leave the designated route to go to bulk oil stations. A bulk oil station is defined as being a place where flammable liquids are stored, and where at least 75% of such liquids is distributed therefrom by tank trucks.

Chevron operates and maintains an oil refinery within the city limits of El Paso. At the refinery, there is a gasoline loading rack from which Chevron sells and dispenses gasoline refined at the plant, and the gasoline is sold on a wholesale basis to jobbers and contractor buyers. Appellant is also in the business of operating or leasing some fifty-three retail service stations within the city limits which sell the Chevron brand gasoline, as well as selling directly to bulk plants within and without the City of El Paso. For its deliveries to the Chevron service stations, Appellant uses a fleet of seven “bobtail” trucks, each having a 1500 gallon capacity, and these comparatively small trucks have been used for about forty-five years and have never been involved in a fire or explosion. The Appellant hires common carriers having tank vehicles with capacities in excess of 1500 gallons for its deliveries to the bulk oil stations in El Paso.

Chevron desires to use a 9000 gallon gasoline tanker for its gasoline deliveries to its retail outlets. This is prohibited by the ordinances. It complains that it is required to make more trips over the city streets to deliver gasoline than it would be required to make if it could deliver 'to retailers in 9000 gallon loads. The ordinances prevent delivery of the flammable liquids to underground storage facilities at the retail service stations in the 9000 gallon trucks, but allow such vehicles to deliver the flammables in said quantities to the bulk storage facilities. The Appellant has twenty retail service stations which abut directly onto the designated flammable liquid routes within the City of El Paso, but the 9000 gallon transports cannot make delivery to these retail service stations under the ordinances. The 9000 gallon transport, which delivers gasoline from the Appellant’s refinery to the El Paso City corral, passes by twenty-four retail service stations of all brands enroute, and the 9000 gallon transport delivering flammable liquids from the refinery to the designated bulk oil station at the El Paso International Airport passes by four of the Appellant’s retail service stations enroute. Because the ordinances prohibit deliveries to retail service stations in vehicles with a capacity of more than 1500 gallons, Chevron has estimated that the increase in the Appellant’s cost in delivering its products amounted to $88,302.00 per year.

The trial Court sustained El Paso’s plea to the jurisdiction holding that it could neither grant a declaratory judgment nor a permanent injunction against the enforcement of the penal ordinances as Appellant made no proof as to irreparable injury to vested property rights and it was not shown that the ordinances were invalid. By its points numbers four and five, the Appellant attacks the action of the trial Court in sustaining the plea to the jurisdiction.

The applicable law has often been quoted from State v. Logue, 376 S.W.2d 567 (Tex.1964).

“The general rule is that equity will not enjoin enforcement of the criminal law. Ex parte Sterling, 122 Tex. 108, 53 S.W.2d 294 (1932); City of Austin v. Austin City Cemetery Ass’n, 87 Tex. 330, 28 S.W. 528 (1894). However, there is an exception to the effect that when the criminal statute is unconstitutional, or otherwise void, and enforcement thereunder involves an invasion of property rights which will result in an irreparable injury thereto, equity will intervene to protect those property rights by enjoining enforcement of such void law. Ex parte Sterling, supra; Crouch v. Craik, Tex., 369 S.W.2d 311 (1963). If either one of the requirements of equitable relief in this type of situation — void law and irreparable injury to property rights — is lacking, the courts of equity have no jurisdiction to entertain such suit. Because of the dual system of courts in this State— civil and criminal — this court will not pass on constitutionality of a criminal statute unless the requirement of irreparable injury of property rights is involved. See Kemp Hotel Operating Co. v. City of Wichita Falls, 141 Tex. 90, 170 S.W.2d 217, 219 (1943).”

This rule applies to municipal ordinances as noted in Bellew v. City of Houston, 456 S.W.2d 185 (Tex.Civ.App—Houston (1st Dist.) 1970, writ ref’d n. r. e.).

First, it is necessary to determine if the enforcement of the ordinances will result in irreparable injury to vested property rights. City of Richardson v. Kaplan, 438 S.W.2d 366 (Tex.1969). The trial Court, by its unchallenged findings of fact, determined that the ordinances have caused a substantial increase in the Appellant’s cost in delivering its product to its customers. In this regard, Appellant contends that its business of refining and marketing petroleum products is a vested property right, and that the use of the streets is only incidental to the marketing of the product; that other businesses which have an incidental use of the streets are permitted to use them without hindrance and that there is, therefore, an unlawful discrimination against the Appellant as to its street use.

It is settled, however, that no person can acquire a vested right to use public streets and highways for carrying on a commercial business. City of Wichita Falls v. Bowen, 143 Tex. 45, 182 S.W.2d 695 (1944); Town of Ascarate v. Villalobos, 148 Tex. 254, 223 S.W.2d 945 (1949). Appellant recognizes these authorities, but argues that the rule as to no vested property rights in the streets applies only where the primary business is carried on in the streets such as with bus services, taxicabs, and common carriers.

There is some merit to the Appellant’s argument in that the courts more readily find a lack of vested property rights in the “street” cases than in those situations where the use of the streets are not involved or are only incidental to the complainant's business. However, the argument is overruled on the following authorities where the uses of streets were only incidental to the complainant’s business. State v. Logue, supra, business of manufacture and sale of highway paving materials; City of Fort Worth v. Craik, 411 S.W.2d 541 (Tex.1967), solicitation of funds for the March of Dimes; Parker Bros. & Co. v. City of Hunter’s Creek Village, 459 S.W.2d 915 (Tex.Civ.App.—Houston (1st Dist.) 1970, no writ), manufacture and sale of construction materials; Stecher v. City of Houston, 272 S.W.2d 925 (Tex.Civ.App.—Galveston 1954, writ ref’d n. r. e.), sale of stationery supplies. The vested property right argument is rejected.

An adequate remedy at law is also present. Any defense to the unconstitutionality of the penal ordinances can be made in the criminal proceeding, State v. Logue, supra. The Appellant’s argument that, at one time long after the present suit was filed and had been set for trial, it invited the City to arrest one of its drivers, and that the City refused the invitation, is overruled.

By point number six it is argued that the Declaratory Judgment Act, Tex. Rev.Civ.Stat.Ann., art. 2524-1, granted an additional remedy to one in the Appellant’s position and, that the requirements regarding equitable relief are no longer applicable. Such a contention has been urged on previous occasions and always rejected. See City of Amarillo v. Griggs Southwest Mortuary, Inc., 406 S.W.2d 230, 233 (Tex.Civ.App.—Amarillo 1966, writ ref’d n. r. e.) and cases cited therein. The point is overruled.

The second requirement before equitable relief can be granted is that the ordinance be void, and this brings up for consideration the Appellant’s first three points. The question of the constitutionality of the ordinances need be examined for the limited purpose only of deciding if this additional ground existed which would sustain the trial Court’s position that it had no jurisdiction over the penal ordinances.

The Appellant emphasizes that the ordinances provide that trucks of any size transporting flammables can deviate from the flammable liquid routes to make deliveries to bulk plants, but that trucks deviating to retail service stations cannot exceed the 1500 gallon limit, and that the larger trucks, even when going to bulk plants, cannot turn into service stations which abut on the route. This, says Appellant, makes the ordinances discriminatory, arbitrary, unreasonable and void.

The accepted rules are that the City has general powers to regulate the use of its streets and to impose reasonable restraints by means or ordinances for the protection of the welfare of the public. Its ordinances are presumed to be valid and the court cannot interfere with the City unless it is clearly made to appear that its action was arbitrary, unreasonable, and a clear abuse of power. The ordinances are not rendered invalid because private rights of persons or property are subjected to restraint, or that a financial loss will result to a company from their enforcement. Town of Ascarate v. Villalobos, supra. If there is room for a difference of opinion as to the necessity and reasonableness of the ordinances which lie within the police power, the courts will not hold them void. City of Bellaire v. Lamkin, 159 Tex. 141, 317 S.W.2d 43 (1958).

Chevron contends that its evidence met the extraordinary burden of proof as a matter of law and that the ordinances are void where they restrict the size of trucks which deliver gasoline to retail service stations. Ex parte Rodgers, 371 S.W.2d 570 (Tex.Cr.App.1963, no writ); Humble Oil & Refining Company v. City of Georgetown, 428 S.W.2d 405 (Tex.Civ.App.—Austin 1968, no writ). While these cases cited support Chevron’s position to some degree, there are at least two vital differences between the ordinances condemned there and the El Paso ordinances. The ordinances condemned did not prescribe the route or regulate the capacities of the tank trucks hauling gasoline over the public streets of either of the cities involved; they obviously were not designed or intended to regulate the operation of the gasoline trucks on the city streets and, under the ordinances, the large gasoline trucks could travel or park on any of the streets, or travel to or park at any retail service station without being in any violation. The ordinances were obviously designed to favor or protect the local bulk station operators and merely prevented the larger trucks from discharging their gasoline on filling station property. It was determined in both cases that no fire danger was eliminated, and that there was no reasonable basis for applying the restrictive provisions to trucks unloading at retail stations to underground tanks while permitting the unloading by all trucks at wholesale plants to overhead storage tanks. Under the El Paso ordinances, all operators of all tankers must stay on certain designated flammable routes, except for the purpose of driving directly to and from bulk oil stations. The operators of the smaller trucks likewise are restricted to the flammable routes, but are permitted to deviate by the shortest route and deliver to the retail service stations. The El Paso ordinances have made a distinction between the bulk plants and the retail service stations on the basis of traffic and fire safety. A review of the testimony reveals many conflicts in the testimony between the parties, and there are admitted differences of opinion as to both the necessity for and the reasonableness of the ordinances. They are not such that will permit the intervention of equity in this controversy and in holding the ordinances void. The evidence, while in dispute, supports the City’s position that the ordinances lessen the fire danger within the City of El Paso. City of Bellaire v. Lamkin, supra. The first three points are overruled.

Appellant next complains of the action of the trial Court in entering judgment for the City on the merits of the case after having sustained its plea to the jurisdiction. From what has been previously said, the trial Court was correct in its holding that it had no jurisdiction in entering any further judgment for the City in the case. Any such error however, as far as Appellant is concerned, can form no basis for reversal of the entire judgment.

By a series of points, the Appellant complains of certain findings of the Court made regarding the lack of jurisdictional facts and of certain conclusions of law. We have considered all of the balance of these points and they are overruled as being without merit.

The judgment of the trial Court is affirmed wherein it dismissed the cause of action asserted by the Appellant. Insofar as it then attempted to pass upon the merits of the Appellant’s cause of action, the judgment is reversed and the Appellees’ motion for judgment is ordered denied as the trial Court was then without jurisdiction to consider such motion.


author: KLINGEMAN, Justice.

text:
    Rolando VALDEZ, Appellant, v. A. T. GILL, Appellee.
    No. 15461.
    Court of Civil Appeals of Texas, San Antonio.
    April 28, 1976.
    Rehearing Denied June 9, 1976.

      C. G. House, William N. Gremillion, Jr., House, Mercer, House, Brock & Wilson, San Antonio, for appellant.
    Clark, Thornton & Summers, Robert B. Thornton, Robert R. Biechlin, Jr., San Antonio, for appellee.
   KLINGEMAN, Justice.

This appeal arises out of a suit by A. T. Gill against Bagby Land & Cattle, Inc. and Rolando Valdez for damages and personal injuries allegedly suffered by Gill in an accident between an automobile driven by Gill, and a truck driven by Valdez and operated by Bagby Land & Cattle, Inc. Valdez filed a cross-action against Gill for alleged personal injuries suffered by him in the accident. Prior to trial, Gill filed his second amended original petition in which Valdez was omitted as a party-defendant. This was the live pleading on which Gill went to trial. The original trial was to a jury, and judgment was entered on the jury verdict on June 21, 1974, that Gill take nothing against Bagby Land & Cattle, Inc., and that Valdez take nothing against Gill.

Gill timely filed a motion for new trial, but Valdez filed no motion for new trial, gave no notice of appeal, and did nothing further to perfect an appeal. Thereafter, on August 14, 1974, Gill filed a motion to sever and, in the alternative, to reform alleging that although he had given notice of appeal and filed a motion for new trial, Valdez had done neither, and should Gill prevail on his motion for a new trial it would be unnecessary and unjust to allow a new trial in reference to Valdez’ cause of action, and asking the Court to sever the cause of action filed by Gill against Bagby from the cross-action filed by Valdez against Gill. In the alternative, Gill alleged that if the Court should decide that Gill is entitled to a new trial, the Court should reform its judgment to an interlocutory judgment against Valdez and grant a new trial on the issues that pertain to the cause of action filed by Gill against Bagby Land & Cattle, Inc.

On August 23,1974, the trial court granted Gill’s motion for severance of Valdez’ counterclaim, and the judgment in favor of Gill on such counterclaim was made interlocutory pending the final determination of the suit by Gill against Bagby Land & Cattle, Inc. Gill’s motion for a new trial was granted.

On March 17, 1975, after a jury had been selected and sworn in, attorneys for Gill and Bagby Land & Cattle, Inc. announced that the controversy had been compromised and settled. Judgment was entered that Gill take nothing against Bagby Land & Cattle, Inc., and the interlocutory judgment theretofore entered on August 23, 1974, against Valdez, was made final. Valdez excepted and gave notice of appeal, but filed no motion for new trial.

On this appeal Valdez complains that the trial court erred in sustaining and in not overruling Gill’s motion to sever or, in the alternative, to reform because (1) the litigation filed by Valdez was by nature a compulsory counterclaim, which is not a separate cause of action and is therefore not severable; (2) in ordering an interlocutory judgment be entered as to Valdez’ counterclaim because, by its inseverable nature, neither an interlocutory nor a final judgment could have been taken as to it until an interlocutory or final judgment was taken as to the original cause of action of which it was a part.

Appellee, Gill, has filed both a motion to dismiss for want of jurisdiction and a reply to appellant’s brief, in which, to some extent, similar contentions are made.

We will first consider Gill’s motion to dismiss, in which he asserts that this Court has no jurisdiction because no motion for new trial was ever filed by Valdez. Valdez’ answer to the motion to dismiss is twofold: (1) that the motion to dismiss for want of jurisdiction was not filed within 30 days after the filing of the transcript in the Court of Civil Appeals as required under our Rules of Civil Procedure, Rules 404-405; (2) this appeal is from a non-jury case, and he was not required to file a motion for new trial.

Gill concedes that his motion to dismiss was not filed within 30 days after the filing of the transcript, but asserts that such motion should be considered by us for two reasons: (a) under the provisions of Rule 405, the Court of Civil Appeals may consider a late filed motion, upon such terms as the Court may deem just and proper; (b) compliance with a jurisdictional requirement is not waived by failure to file within 30 days.

It appears clear that if this Court is without jurisdiction, the failure to file a motion to dismiss within 30 days after the filing of the record is not fatal. Walker v. Cleere, 141 Tex. 550, 174 S.W.2d 956, 958 (1943). The Supreme Court, in considering Rule 405, held that compliance with a jurisdictional requirement was not waived by the failure to file a motion to dismiss or strike the record within 30 days after the filing thereof. There are many other Texas cases so holding. In Winfree v. Winfree, 438 S.W.2d 937 (Tex.Civ.App.—Corpus Christi 1969, no writ), the court considered the contention that a motion to dismiss, which was not filed within 30 days after the transcript was filed in the Court of Civil Appeals, was not timely filed and should not be considered. The court stated:

In order for this Court to accept this appeal and consider it on the merits, the Court would of necessity have to have jurisdiction of the appeal. We have no such jurisdiction. Lack of jurisdiction can not be defeated even by waiver of the parties (Consolidated Casualty Insurance Company v. Wade, Tex.Civ.App., 373 S.W.2d 841, wr. dis.; Buckalew v. Fancher, Tex.Civ.App., 427 S.W.2d 351) and shall be considered as fundamental by the appellate court with or without motion or assignment of error. Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890, 893 syl. (4); State v. Sunland Supply Co., Tex.Sup.Ct., 404 S.W.2d 316, 319 syl. (5). Even had appellee failed to file a motion to dismiss, such failure could not and would not give this Court jurisdiction.

Despite the fact that appellee’s motion to dismiss was not filed within 30 days after the filing of the transcript, we will consider such motion.

A more difficult question is involved in connection with Gill’s contention that his motion to dismiss should be granted because Valdez failed to file a motion for a new trial as required by Rule 324, Tex.R.Civ.P.

A crucial question here involved is whether Valdez, having done nothing to perfect an appeal after a take nothing judgment has been entered against him in a jury trial based on adverse jury answers to special issues, is now entitled to be heard on his claim against Gill because a new trial was granted to Gill on his claim or cause of action against Bagby Land & Cattle, Inc. Stated differently, did the granting of a partial new trial as to Gill’s suit against Bagby Land & Cattle, Inc., the only defendant in such suit, operate to vacate the entire judgment, including the take nothing judgment against Valdez on his cross-claim against Gill, and the jury answers to all special issues?

Valdez asserts on appeal that his cross-action or cross-claim against Gill is by nature a compulsory counterclaim, and is therefore not severable. Gill asserts that even if you assume that Valdez’ cross-claim was compulsory in nature when filed, it lost its character as such when Gill dismissed Valdez as a defendant to the suit by filing his second amended original petition in which Bagby Land & Cattle, Inc. is the only defendant.

Under the provisions of Rule 65, Tex.R.Civ.P., with some exceptions not here applicable, an amended pleading takes the place of and completely supersedes the pleading which is amended. As a general rule, the filing of an amended petition omitting an individual as a party-defendant has the effect of dismissing such party the same as if an order had been entered. Ridley v. McCallum, 139 Tex. 540, 163 S.W.2d 833 (1942); Hatley v. Schmidt, 471 S.W.2d 440 (Tex.Civ.App.—San Antonio 1971, writ ref’d n. r. e.); King v. Air Express International Agency, Inc., 413 S.W.2d 838 (Tex.Civ.App.—Houston 1967, no writ); Brennan v. Greene, 154 S.W.2d 523 (Tex.Civ.App.—San Antonio 1941, writ ref’d). A dismissal is not an adjudication of the rights of the parties and merely places the parties in the position in which they were in before the court’s jurisdiction was invoked, just as if the suit had not been brought. Crofts v. Court of Civil Appeals, 362 S.W.2d 101 (Tex.1962). Such a dismissal, however, could not defeat Valdez’ right to recover on his counterclaim theretofore filed. Cross v. B & B Growers and Packers, Inc., 364 S.W.2d 450 (Tex.Civ.App.—San Antonio 1963, no writ).

There are cases and authorities indicating that the compulsory counterclaim rule is not applicable to the situation in which the cross-plaintiff, the party asserting the cross-claim, is no longer a defendant. In Robertson v. Melton’s Estate, 306 S.W.2d 811 (Tex.Civ.App.—Beaumont 1957, writ ref’d), the court said:

We think the case of Heights Funeral Home v. McClain, Tex.Civ.App., 288 S.W.2d 839, 843, decided by this court, is conclusive of the question. Rule 97(a) was there construed in this manner: “The rule just quoted contemplates situations where the primary parties — the cross-plaintiff and at least one cross-defendant — are already before the court as parties to the action. It does not contemplate a situation where no cross-defendant is a party to the action and one can be brought in only with leave of the court and for such purposes only as the court may permit. The latter situation is governed by Rule 38(a), supra.”

In Astro Sign Company v. Sullivan, 518 S.W.2d 420 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.), the trial court stated:

The trial court held in conclusion # 8 that the claim in Astro’s suit was a compulsory counterclaim to that in Sullivan’s suit even if Sullivan’s cause named only Joe Norman as a defendant. Appellant says that is wrong in its point 25. Rule 97(a), supra, requires that the claim be against an opposing party in a pending action. 2 McDonald, Texas Civil Practice § 7.49 (1970). If, as the trial court surmised, Joe Norman was the only party defendant in Sullivan’s suit, appellant is not a party to that action. Appellant’s point 25 is sustained.

See also 2 McDonald, Texas Civil Practice § 7.47 n. 20.

Moreover, the Rules of Civil Procedure grant trial courts broad discretion in the matter of consolidation and severance of causes, and the trial court’s action in such matters will not be disturbed on appeal except for abuse of discretion. Rule 174, Tex.R.Civ.P.; McGuire v. Commercial Union Insurance Company of New York, 431 S.W.2d 347 (Tex.1968); Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677, 682 (1956); Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588 (1955); Damron v. Fireman’s Fund Insurance Company, 430 S.W.2d 956 (Tex.Civ.App.—Amarillo 1968, no writ).

In Youngblood v. Central Soya Company, Inc., 522 S.W.2d 277, 280 (Tex.Civ.App.—Ft. Worth 1975, writ ref’d n. r. e.), the trial court entered an order severing from plaintiff’s suit on an open account the plaintiff’s suit on a note and defendant’s cross-action, and then rendered a summary judgment for plaintiff against defendant on the open account. The Court of Civil Appeals affirmed the judgment of the trial court, stating:

Defendant’s second point of error is that the court erred in granting the summary judgment on the open account at a time when defendant had on file in the case a cross-action on matters that arose from the same transaction and which were an offset and counterclaim to the open account suit.
We overrule the point and defendant’s arguments in support of it.
Trial courts are vested with large discretion as to whether or not to sever and have separate trials of causes of action. See Rule 41, T.R.C.P., and Pure Oil Company v. Fowler, [Tex.Civ.App., 302 S.W.2d 461], supra.

We have concluded that after Valdez had been dismissed as a party-defendant, Valdez’ cross-claim against Gill was properly severable.

The next question to be answered is whether this is an appeal from a judgment based on a jury trial, as urged by Gill, or from a non-jury trial as urged by Valdez.

Rule 324, Tex.R.Civ.P., provides in part as follows:

[A] motion for new trial shall be filed as a prerequisite to appeal; provided that neither a motion for new trial nor an assignment therein shall be a prerequisite to the right to complain on appeal of the action of the court in giving a peremptory instruction, or in withdrawing the case from the jury and rendering judgment, or in rendering or refusing to render judgment non obstante veredicto or notwithstanding the finding of the jury on one or more special issues, or in overruling a motion for judgment on the verdict made by the party who becomes appellant; nor shall a motion for new trial be required in a non-jury case or in a case where the appeal is based upon some error of the trial court arising after its action upon the motion for new trial.

A motion for new trial is a jurisdictional prerequisite to appeal from a case tried to a jury, with certain exceptions. St. Louis Southwestern Railway Company v. Duke, 424 S.W.2d 896 (Tex.1967); Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960). No contention is here made by Valdez that any of the exceptions set forth in Rule 324 are applicable, except that Valdez contends that this is not an appeal from a jury trial, but rather from a non-jury trial.

It is to be remembered that at the time of the original trial which was to a jury, the only parties before the court were Gill, as plaintiff in his claim or cause of action against defendant, Bagby Land & Cattle, Inc., and Valdez, as cross-plaintiff in his claim against Gill. Based on the jury’s answers to special issues, judgment was entered on the jury verdict that Gill take nothing on his claim against Bagby Land & Cattle, Inc. and that Valdez take nothing on his claim against Gill. The judgment effectively disposed of all parties and issues before the court. Gill saw fit to appeal, and timely filed a motion for new trial as to his claim against Bagby Land & Cattle, Inc., which motion was ultimately granted on what we presume to be sufficient grounds. Valdez did not give notice of appeal or ever file a motion for new trial. His case is predicated upon his contention that the granting of a new trial to Gill on his claim against Bagby Land & Cattle, Inc, had the effect of vacating the entire judgment and the jury answers to all special issues, including the take nothing judgment rendered against Valdez on his claim against Gill.

Although Valdez contends that this is an appeal from a non-jury case, basically what he seeks to do is to set aside a take nothing judgment entered against him on his claim against Gill after a jury trial based upon adverse jury answers.

Gill asserts that Valdez’ counterclaim was clearly severable and that a partial new trial is authorized as to severable portions of the case; the new trial that was here ordered as to his claim against Bagby Land & Cattle, Inc. vacated only so much of the original judgment and jury findings as were based on Gill’s cause of action against Bagby; the judgment and jury finding as to Valdez’ claim against Gill and the judgment here being appealed from is still based on a jury trial insofar as Valdez’ claim is concerned; a motion for new trial was clearly required to preserve Valdez’ appeal; and that his failure to file such a motion is jurisdictional.

Gill further asserts that where a cause of action is properly severable, the more enlightened view is that a motion for new trial can be granted as to a portion of the case without necessitating a new trial of the entire case. 4 McDonald, Texas Civil Practice § 18.21.

In Hamilton v. Hamilton, supra, two separate actions involving wills of W. B. Hamilton were filed in the trial court, but were consolidated and tried as one cause. Based on jury findings on special issues, the trial court entered judgment on the verdict for Norman Hamilton. After petitioner, Cleo Hamilton, filed a motion for new trial; the trial court reformed its judgment granting petitioner a new trial in the will contest case, and rendered judgment n. o. v. in favor of petitioner in the contract case. The judgment was reversed in the Court of Civil Appeals. In the Supreme Court, the petitioner, Cleo Hamilton, asserted, among other things, that insomuch as a new trial had to be granted in the will contest case, the findings of the jury, which were adverse to petitioner in the contract case, should not be allowed to stand, and that a new trial ought to have been granted in both. The Supreme Court held such contention to be without merit, and stated that the trial court did not abuse its discretion when, having determined that' a new trial was necessary in the will case and that no error had been committed so far as the contract case was concerned, deemed it proper to grant a new trial only in the will contest case and severed the remaining causes of action.

In a case involving two or more separate and distinct causes of action, a final judgment may be rendered as to one or more of such causes, and a new trial ordered as to the others. Boone v. Hulsey, 71 Tex. 176, 9 S.W. 531 (1887); Associated Growers v. Smith, 244 S.W.2d 348 (Tex.Civ.App.—San Antonio 1951, no writ); Alexander v. Meredith, 154 S.W.2d 920 (Tex.Civ.App.—Texarkana 1939, no writ).

In Finder v. E. L. Cheeney Company, 368 S.W.2d 62 (Tex.Civ.App.—Beaumont 1963, no writ), appellant complained that the trial court erred in severing the original cause of action from the cross-action of appellee. Appellee had filed in the trial court a motion for severance, and for judgment on its cross-action, and subject thereto, a motion to enter judgment in favor of appellee notwithstanding the verdict. The trial court overruled appellee’s motion for judgment n. o. v., but granted appellee’s motion for severance. Appellant gave notice of appeal from the order granting appellee’s motion for severance, but filed no motion for a new trial. Appellant’s complaint on appeal was that the- trial court erred in severing the original action from the cross-action of ap-pellee. Appellee on appeal filed a motion to dismiss urging that the court lacked jurisdiction because of appellant’s failure to file a motion for new trial. The appellate court stated “[ajppellant’s point not having support in a motion for new trial and not based upon any of the exceptions listed above, cannot be considered.”

See also McGuire v. Commercial Union Insurance Company of New York, supra; Pope and Sheehan, “Try, Try, Again . . ” A Proposal to Limit the Scope of New Trials in Texas, 7 St. Mary’s L.J. 1, (1975).

We have concluded that Gill’s motion to dismiss the appeal is meritorious and should be granted. The appeal is dismissed.

      . Rule 174(b) Separate Trials. The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.