author: DOUGLAS, Judge. ROBERTS, Judge

text:
    Larry ROBERTSON, Appellant, v. The STATE of Texas, Appellee.
    No. 51878.
    Court of Criminal Appeals of Texas.
    Oct. 6, 1976.

      Louis M. Moore, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, Byron Davis, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

Larry Robertson was found guilty by the trial court upon stipulated facts for the possession of less than two ounces of marihuana. Punishment was assessed at a fine of $350.00. His sole contention on appeal is that the evidence was illegally obtained as the result of an inventory of his automobile. We overrule that contention and affirm.

When a driver has a collision rendering the car inoperable and he is taken to a hospital because of injuries, is it reasonable for an officer to make an inventory of the property in the car to protect the owner and the officer and the wrecker service?

At approximately 9:00 p. m., Robertson, who was alone in his car, drove into a utility pole on Winkler Drive in Houston. Within a few minutes Officers D. E. Logs-don and R. H. Thomas of the Houston Police Department arrived and found Robertson, who was semi-conscious’ “. kind of laid across the frontseat.” At about the same time, an ambulance arrived. Officer Logsdon helped take Robertson out of the car and put him in the ambulance to be taken to a hospital. The wrecked car was partially in the street. The utility pole was broken and “hot” lines were across the street. Men from Houston Power and Light Company came and moved the lines. The officers then took an inventory of the property in the car. They found, among other things, marihuana in the glove compartment. Officers then directed a wrecker to take the car for storage.

Officer Logsdon testified that an inventory is made when the driver has been taken to a hospital and when the car is not drivea-ble. He related that it was mandatory for him to make such an inventory because he was responsible for the property. This check was to make “. . . sure the man’s property is still there when he comes to pick it up” and if anything were stolen or missing the wrecker driver would be responsible for it.- It was stipulated and the record shows that the Houston Police Department required an inventory in such cases. A copy of the inventory was given to the wrecker service and to the accident division office and the auto theft division of the police department. The inventory included in the “Houston Police Department Record of Towed Vehicle” was admitted into evidence.

The policy of making an inventory is based upon logic. Most citizens would expect their property to be protected where officers are responsible for taking charge of a wrecked car and removing it from a street. When officers make such an inventory, they know that there might be valuables which should be protected. A police department should require such an inventory-

The Fourth Amendment to the Constitution of the United States prohibits unreasonable searches and seizures. In this ease there was an inventory and no search as contemplated under the Fourth Amendment. Therefore, there was no unreasonable search. The officers had a duty to protect any property found in the car. They were not looking for evidence to convict Robertson. They had a right to be in the car. A large majority of citizens do not have illegal substances or contraband in their cars and want their property protected. The rights of the law-abiding citizens should be taken into consideration. A special rule should not be made by this Court to prevent such inventories, especially when no constitutional or statutory provision demands it. Inventories made under the circumstances of this case should be commendable, not condemned.

The dissent reasons that the car was not in the custody of, and that it was not impounded by, the police. The officers had a duty to take control of the wrecked car which was partially on the street. They took control of the car and this amounted to custody. When they ordered a private wrecking company to take the car for im-poundment, it was impounded just as effectively as if it had been taken to a police compound. What difference should it make if the car was taken to a private lot or city compound? The inventory was made before it was moved and when it was under the control of the officers. There is more reason for making an inventory of property in a car which is to be stored on a private lot than there is reason for one stored at a police compound where it is likely to have better police protection. The more property changes hands, the more chances are that it will be lost unless records are kept.

This case is governed by the recent decision of South Dakota v. Opperman, - U.S. -, 96 S.Ct. 3092, 50 L.Ed.2d - (1976). There, the Supreme Court of the United States recognizes the authority to conduct routine inventory searches under certain circumstances. The case involved an automobile lawfully impounded by police because of multiple parking violations. Following standard procedures, the police inventoried the contents of the car at the impound lot. Marihuana was discovered in the unopened glove compartment. The arrest and conviction of Opperman for possession of marihuana resulted.

In concluding that the police procedure in question was valid, the Supreme Court held that the conduct of the police was not “unreasonable” under the Fourth Amendment of the United States Constitution. The Court reasoned that there is a distinction between automobiles and homes or offices in relation to the Fourth Amendment. This is due to the inherent mobility of automobiles which, of practical necessity, precludes rigorous enforcement of the warrant requirement. Carroll v. United States, 267 U.S. 132, 153-154, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Coolidge v. New Hampshire, 403 U.S. 443, 459-460, 91 S.Ct. 2022, 2034, 29 L.Ed.2d 564 (1971). The Court further reasoned that the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office. This view rests on the fact that the motor vehicle’s function is transportation and it seldom serves as one’s residence or as the repository of one’s personal effects. Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974).

The above reasoning points toward and emphasizes the Supreme Court’s conclusion in Opperman. The decision was based on “community caretaking functions” as follows:

“In the interests of public safety and as part of what the Court has called ‘community caretaking functions,’ [citation], automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic-control activities. Police will also frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.
“When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles’ contents. These procedures developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody [citation]; the protection of the police against claims or disputes over lost or stolen property [citation]; and the protection of the police from potential danger [citation]. The practice has been viewed as essential to respond to incidents of theft or vandalism. . ”
(Emphasis supplied) 96 S.Ct. at 3096.

In the instant case, the Houston police were indisputably engaged in caretaking and traffic-control activities. In light of Opperman, the Houston police had the authority to seize and remove appellant’s vehicle from the street. It is of no material consequence that they selected a private wrecking company to remove the car pursuant to the exercise of that authority. In this connection, Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), relied on by the Supreme Court in Opperman, is applicable.

In Cady, defendant’s vehicle was disabled as the result of an accident. Defendant was intoxicated and later comatose, and therefore could not make arrangements to have the automobile towed and stored. At the direction of the local police the vehicle was towed to a private garage. A warrant-less search of the car pursuant to standard police procedures was upheld by the Supreme Court. The sole justification for the search was that it was incident to the care-taking function of the police to protect the community’s safety.

Finally, the Supreme Court recognized in Opperman that standard inventories often include an examination of the glove compartment, since it is a customary place for documents of ownership and registration, as well as a place for the temporary storage of valuables.

We hold that in following standard police procedures, the conduct of the police was not “unreasonable” under the Fourth Amendment.

No error is shown. The judgment is affirmed.

ROBERTS, Judge

(dissenting).

Today the majority has created a new exception to the Fourth Amendment of the United States Constitution and Article I, Section 9 of the Constitution of this State. This exception has been released upon the citizens, of this State unsupported by prior case law and without a careful analysis as to when it should or should not be applied. In this sense, the newly created exception differs from the others already in existence. The new exception is justified not by a set of circumstances in existence at the time the search is conducted which logically dictate that it should be applied but rather it is viewed after the fact and given the sanction of law by the single descriptive term: Inventory.

The record reveals that the appellant was involved in a one-car accident at nine o’clock on the evening of the offense. Swerving to avoid two boys on a bicycle, he collided with a telephone pole. His car was rendered inoperable and was lodged partly on and partly off the street.

An ambulance arrived about five minutes later, around the same time that Houston Police Officers D. E. Logsdon and R. H. Thomas arrived to investigate the accident. After giving his name to the officers, the semiconscious appellant was taken by ambulance to a nearby hospital. Appellant was not under arrest or in custody, nor was there any probable cause to believe he had been involved in criminal activity.

Preparatory to having appellant’s car towed, the officers conducted an inventory search of the car’s contents. They found two pairs of shp|s, a water pump, two cases of oil, and a box of papers. In the unopened glove compartment, they also found less than an ounce of marihuana, which formed the basis of this prosecution. Appellant did not consent to the search of his vehicle. There were no “fruits or instrumentalities” of a crime or contraband in plain view in the automobile. The only justification for the search advanced at the trial was that the policy of the Houston Police Department called for inventorying a vehicle prior to its being turned over to a private wrecking company to secure the owner’s personal effects and protect the officers from any liability in the event of their disappearance. After the officers completed a list of the property found in the car, it was towed by a private wrecker to a private automobile dealership and placed in a safe enclosure.

There is no contention that the officers conducted the search for their own safety. The appellant did not request that the contents of his automobile be secured in any way, shape or form by the Houston Police Department. The automobile was not subject to forfeiture and, in fact, was in no way seized at all. The only question presented is whether the officers were justified in searching the car for inventory purposes. The only possible basis for this justification is whether the police needed to inventory the car in order to protect themselves from later civil liability.

The majority bases its decision on the recent case of South Dakota v. Opperman, - U.S. -, 96 S.Ct. 3092, 50 L.Ed.2d -(1976), in which the Supreme Court of the United States discusses the validity of inventory searches. In that case, the defendant’s car had been impounded for multiple parking violations. After the vehicle was towed to the city impound lot, the police, following standard procedures, inventoried the contents of the car. In doing so they discovered marihuana in the glove compartment, for the possession of which the defendant was subsequently arrested. The Supreme Court upheld the validity of the police procedures, stating that such an inventory search was not an “unreasonable” search in violation of the Fourth Amendment. The Supreme Court stated that there is a distinction between automobiles and homes or offices in relation to the Fourth Amendment. This is due to the former’s inherent mobility which, of necessity, makes rigorous enforcement of the warrant requirement impossible. Coolidge v. New Hampshire, 403 U.S. 443, 459 — 460, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Furthermore, the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office because the motor vehicle’s function is transportation and seldom serves as one’s residence or as the repository of personal effects. Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974).

While the above reasoning by the Supreme Court lends further credence to its disposition of Opperman, the basis for its decision lies in the discussion of “community caretaking functions” and the rights and obligations of the police pursuant thereto:

“In the interest of public safety and as a part of what the Court has called ‘community caretaking functions,’ (citation) automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic control activities. Police will also frequently remove and impound automobiles which violate parking'ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.
“When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobile’s contents. These procedures developed in response to three distinct needs: The protection of the owner’s property while it remains in police custody, (citation); the protection of the police against claims or disputes over lost or stolen property, (citation); and the protection of the police from potential danger, (citation). The practice has been viewed as essential to respond to incidents of theft or vandalism.” (Emphasis added.)

In the case at bar, the appellant’s car was never impounded by the police. Furthermore, the police did not have custody of appellant’s car. The stipulated facts reveal that appellant was of the opinion that he was in control of his faculties sufficient to have maintained control and custody of the vehicle; that as far as he was concerned, he never discontinued to exercise custody and control over his vehicle; and that he could have made arrangements to have the vehicle towed and stored but he was not given a chance to instruct anybody what to do with the vehicle or where to send it. Appellant, based on his experience of having worked at a salvage and storage place, stated that he was aware that when an accident occurred in the City of Houston, there are usually one or two wreckers that arrive at the scene and that one of the wreckers picks the car up and puts it in a guarded lot where there isn’t any danger of theft. Based on this prior experience and knowledge, appellant stated that he was not concerned about the safety of the contents of his car at the time, that he did not tell the officers to take charge of the vehicle, that all doors of the vehicle had locks and could have been locked if someone wanted to lock them.

At the motion to suppress, the police officer testified that appellant was taken to the hospital approximately three to five minutes after the officers arrived at the accident, and that a wrecker arrived and towed the car away approximately ten minutes after appellant left for the hospital.

In light of the factual distinction present in the case at bar, South Dakota v. Opperman is inapplicable, as is Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), relied on by the Supreme Court in Opperman. In Cady, the police had reasonable grounds to believe a weapon might be in the car, and thus available to vandals. 413 U.S., at 436, 93 S.Ct. 2523. In the case at bar, the State has stipulated that “the station wagon was not searched because the officers believed or had reason to believe that the vehicle contained a dangerous instrument.”

A recent Florida decision, decided after Opperman, puts the question of inventory search in the proper perspective. In Altman v. State, 335 So.2d 626 (Fla.App.1976), the defendant lost control of his automobile as a result of an accident following a high-speed chase by the police. After the arrest, two officers conducted an inventory search of the defendant’s car and found in excess of five grams of marihuana in the glove compartment. No search warrant was obtained and no claim was made that the defendant consented to the search. Nor was any contention made that the officers had probable cause to believe the defendant had contraband in the vehicle. Defendant’s motion to suppress was overruled.

In reversing the trial court, the Florida Appellate Court held that in considering the validity vel non of an inventory search, it becomes essential to initially determine whether it is necessary for the police to conduct a search. They went on to state that a common pattern running through the cases they have reviewed is that the police must act in good faith and not use the inventory procedure as a subterfuge for a warrantless search of a vehicle. “A prime criterion to determine if the police have taken lawful custody of a motor vehicle is whether or not it is justifiable for the police, acting under routine police procedure, to become bailees of the vehicle.” Id., at 629. The court held that since it was stipulated that the defendant desired and had the ability to have his car removed by someone without the intervention of the police, the underlying necessity for police custody did not exist. The Florida Appellate Court then focused on Opperman:

“Our comment on the prerequisite of necessity for impoundment as the threshold to justify an inventory search is a timely caveat to law enforcement officers particularly in view of the recent opinion of the United States Supreme Court in South Dakota v. Opperman,-U.S.-, 96 S.Ct. 3092, 50 L.Ed.2d-, opinion filed July 6, 1976.”

I express no opinion as to when police contact with an individual’s automobile ■ could possibly subject the police to a later claim for lost or stolen property and thereby justify an inventory search by the police in order to protect themselves from such subsequent claim by the individual.

I would hold that where the vehicle is not impounded by the police, where express custody of the vehicle is not given by the individual to the police, where the police do not assume custody by seizing the vehicle in the absence of the individual while performing “community caretaking functions,” and where the police are in proximity to the vehicle for such an extremely short period of time as they were in this case, there is no reason to create an exception to the requirements of the Fourth Amendment of the United States Constitution or Article I, Section 9 of the Constitution of this State. In such instances, if a search is conducted, the police should fulfill the warrant requirement or bring their actions within the carefully defined exceptions to this requirement.

In this ease, the search conducted by the police was “unreasonable” within the meaning of the Fourth Amendment of the United States Constitution and Article I, Section 9 of the Constitution of this State. Consequently, the marihuana should not have been admitted into evidence.

I respectfully dissent, and would reverse and remand the judgment of the trial court.

      . While the majority indicates that what occurred was not a “search” within the meaning of the Fourth Amendment, I feel that a seman-tical voyage at this point is unnecessary. When a glove compartment of an automobile has been opened and its contents itemized, it has been searched within the meaning of the
      Fourth Amendment notwithstanding the applicable descriptive terms one may find in Webster to apply to this intrusion into privacy.
      Furthermore, the following cases support the proposition that an inventory is a “search” within the meaning of the Fourth Amendment: U. S. v. Lawson, 355 F.Supp. 101 (D.C.S.D.),
        aff’d, 487 F.2d 468 (8th Cir.1973); Cabbler v. Superintendent, 374 F.Supp. 690 (D.C.Va. 1974); Boulet v. State, 109 Ariz. 433, 511 P.2d 168 (1973); Mozzetti v. Sup. Ct. of Sacramento County, 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84 (1971); Gagnon v. State, 212 So.2d 337 (Fla.App.1968).
      The mere fact that the police officer conducting the search chooses to call it an inventory does not make his conduct something other than a search. State v. Jones, 122 N.J.Super. 585, 301 A.2d 185 (1973).

      . Notwithstanding the fact that this was the sole justification advanced at the trial, and should therefore be the isolated issue presented for appellate review, the majority bolsters its opinion by discussing the interest of the citizen in having his property, and not his privacy, protected and by stating, without explaining the basis for, the duty of the police to protect such property and degrade such privacy.
      Furthermore, the majority reasons that the police were not looking for evidence and that they should be commended for taking the initiative to invade the appellant’s privacy and protect his property. It has been held that regardless of the proffered benevolent purposes and euphemistic explication, an inventory search involves a thorough exploration by the police into private property of an individual, and that the police are not exempt from the constitutional requirements of the Fourth Amendment merely because they are not searching with the express purpose of finding evidence of crime. Mozzetti v. Sup. Ct. of Sacramento County, 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84 (1971).

      . While the majority equates police control with police custody, they do so unmindful of the fact that this reasoning runs counter to the law of bailment and when carried to its logical extreme, reduces the Fourth Amendment to a bundle of words.
      Sometimes police officers, in uniform, guard crowded parking lots at football games, concerts, et cetera. They are assigned these duties in order to prevent vehicles from being burglarized or other crimes from taking place which frequently occur on crowded parking lots at night. While police certainly have control of the vehicles in the sense that they could order one towed away if it was haphazardly parked and blocking traffic or otherwise creating a hazard, they do not have custody because temporary possession has not been given, either expressly or impliedly, by the owners to the officers. In such situations, if the mere presence of “control” justifies inventory searches to protect the police from civil liability, then they should be given the right to inventory every car on the parking lot, under the reasoning adopted by the majority today, since the owners could later claim that the police, while guarding the lot, took something out of the cars.

      . For other cases which hold that the essential prerequisite to a valid inventory search is that police must have taken lawful custody of the vehicle in the first instance and when police custodial care is not necessary, the inventory search is unlawful, see, 48 A.L.R.3rd 537, 551.

      . Even so, I have doubts that such a procedure is necessary, as police derive no benefit from the performance of these caretaking functions, and their conduct is usually for the sole benefit of the owner of the car. “The nature of a particular bailment determines the standard of diligence imposed by law on a bailee in caring for the property entrusted to him and his liability for loss or injury. If the bailment is for the sole benefit of the bailor, the law requires of the bailee only slight diligence, and holds him answerable only for gross negligence.” 7 Tex. Jur.2d Rev. Part 2, Bailment, Section 24, p. 732 (and cases there cited). I further doubt that inventory procedures would have any effect in a subsequent suit for missing property. See, Szwajkowski, “The Aftermath of Cooper v. California,” 1968 University of Ill.L.Forum 401, at pages 407, 408; and Nelson, “Chimel v. California: A Potential Roadblock to Vehicle Searches,” 17 U.C.L.A.L.Rev. 626, at page 642. Locking the doors of the car would not only better protect the police from false claims, but would also preserve the individual’s constitutional rights. Mozzetti, supra.

      . In its opinion, the majority commits a graver error by impliedly reasoning that since the conduct of the police is not constitutionally proscribed, it is thereby constitutionally permitted. There was no showing by the State on appeal that this power to “inventory” is given the Houston Police Department by statute or municipal ordinance. The record reflects merely that the “policy” of the Houston Police Department requires that an inventory be made in such circumstances. This reasoning is repugnant to the fundamental principle in a free society that the police have only those powers given to them by statute. To say the police can act without a grant of power from the legislative branch is to say the police can give the power to act to themselves, which is characteristic of a police state.


source: Caselaw Access Project

author: GREEN, Commissioner.

license: Public Domain

text:
    Ellis Douglas BURRELL, Appellant, v. The STATE of Texas, Appellee.
    No. 52069.
    Court of Criminal Appeals of Texas.
    Oct. 6, 1976.

      Thomas P. Roebuck, Beaumont, for appellant.
    Thomas L. Hanna, Dist. Atty., Jimmie R. Stanton, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

This is an appeal from an order revoking probation.

By per curiam opinion dated May 26, 1976, this appeal was ordered dismissed by this Court due to lack of jurisdiction of the appeal in the absence of a judgment of the original conviction in the appellate record. Thereafter a supplemental transcript was filed containing a judgment duly entered by the trial court on December 18, 1974. By order of the Court of Criminal Appeals dated June 29, 1976, the appeal was for good and sufficient cause reinstated on the docket, and it is now before us for our consideration.

The record reflects that on December 18, 1974, appellant plead guilty, waived a jury, and was convicted of burglary. Punishment was assessed at eight years, probated. Condition (a) of the order of probation provided that appellant should commit no offense against the laws of this state or any other state or of the United States.

On May 30,1975, the State filed a motion to revoke probation, alleging that on May 7, 1975, in Jefferson County, appellant committed the offense of Terroristic Threat (see V.T.C.A. Penal Code, Sec. 22.07) by threatening'to kill Willie Ches'ter Wise with the intent to place the said Wise in fear of imminent serious bodily injury. A hearing was conducted on said motion on August 4, 1975, at the close of which the court found that appellant had violated condition (a) of the order of probation: “By committing the offense of Terroristic Threat in that on or .about May 7, 1975, in Jefferson County, Texas, Ellis Douglas Burrell did then and there threaten to commit an offense involving violence to Willie Chester Wise, namely, to kill the said Willie Chester Wise, with intent to place Willie Chester Wise in fear of imminent serious bodily injury.”

The court entered its order revoking appellant’s probation, and duly sentenced him to a term of not less than two nor more than eight years in the Texas Department of Corrections. Appellant timely gave notice of appeal.

In two grounds of error, appellant complains of insufficiency of the evidence to justify the court’s finding that appellant directed a serious terroristic threat toward the complainant which placed complainant in fear of imminent serious bodily injury.

V.T.C.A. Penal Code, Sec. 22.07(a)(2) and (b), Terroristic Threat, provides:

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

The complainant Wise testified that on May 7,1975, he was the owner and operator of Cookie’s Soul Kitchen in Port Arthur. About midnight on May 7, he became involved in an argument with Norman Wade outside of the building concerning the latter having urinated on the side of the building. Appellant and his brother Clyde Burrell appeared and sided with Wade. The argument “really then got heated. I was called some quite obvious names, and a threat was made against my life.” Wise testified that Wade, Clyde Burrell and appellant made threats against him, “and the Burrell brothers said they would get me, period.” The threats against his life and to get him caused complainant to have “one thought in my mind: it was either me or them.” Wise could tell that appellant “meant what he said” and seeing the severity of the situation, he asked his wife to call the police. Wise testified that in calling the police he took the precautions he felt were necessary in order to protect his life, and also to' protect his patrons and “my kids.”

Appellant and Norman Wade testified and denied having made any threats against complainant on this occasion. Fact issues were raised by the evidence which were decided by the court when he found “beyond a reasonable doubt” that the facts alleged as a violation of condition (a) of the probation order were true, and revoked probation.

As stated in the Practice Commentary by Hon. Seth S. Searcy and James R. Patterson to V.T.C.A. Penal Code, Sec. 22.07, appearing following that Section in Volume 2 of the Code:

“This section is directed toward those who seek to cause terror or public inconvenience by threatening to commit crimes of violence. It is a new offense covering conduct covered only haphazardly in prior law, see, e. g., Penal Code arts. 476, 1265. The conduct resembles that proscribed by Section 42.06 (false alarm or report), except that the actor does not necessarily know his threat is false; indeed, he may intend to carry it out.
“The section is broad enough to cover threats to commit any crime of violence if the actor’s intent is to cause fear, emergency action, or substantial inconvenience. It also covers both threats against an individual that may not constitute assault and threats that cause public terror or inconvenience.
“Threats that affect the public, being more serious because their effect is widespread, are punished more severely.”

The testimony of the complainant Wise reflected that on the occasion here involved appellant did threaten to commit an offense involving violence to complainant with intent to place him in fear of imminent serious bodily injury. See Section 22.07(a)(2), supra. The trial court did not abuse its discretion in revoking probation.

The judgment is affirmed.

Opinion approved by the Court.


author: ONION, Presiding Judge.

text:
    Joseph CAUDILLO et al., Appellants, v. The STATE of Texas, Appellee.
    No. 52766.
    Court of Criminal Appeals of Texas.
    Oct. 6, 1976.

      H. Thomas Hirsch, Odessa, on appeal only, for appellants.
    Steve W. Simmons, Dist. Atty., and James C. Butts, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a final judgment forfeiting an appearance or bail bond in the sum of $2,500.

The record reflects that on August 23, 1975, Joseph Caudillo was charged by indictment with aggravated rape. On that date he was released on a $2,500 bail bond with Odell and Thedis Walker as sureties. On November 20,1975, the principal on the bond, Caudillo, failed to appear for a pretrial hearing in district court. The bond was ordered forfeited. A judgment nisi was formally entered on December 16,1975. On February 23,1976, a hearing was held to determine why the judgment of forfeiture should not be made final. At the conclusion of the hearing, a final judgment was ordered, which was formally signed April 23, 1976.

Appellants’ first contention is that the court erred in entering a final judgment “for the reason that there was no evidence that the defendant or his attorney or the sureties ever received notice of the November 20, 1975, pre-trial hearing.”

Article 22.13, Vernon’s Ann.C.C.P., provides that certain causes, “and no other” will exonerate the defendant-principal and his sureties, if any, from liability upon the forfeiture taken. Appellant apparently relies upon § 3 thereof, which provides in part:

“3. The sickness of the principal or some uncontrollable circumstance which prevented his appearance at court, and it must, in every such ease, be shown that his failure to appear arose from no fault on his part. . . . ”

Appellants contend that since the principal, sureties, etc., did not receive notice of the setting that this was an uncontrollable circumstance which prevented the principal’s appearance.

The bail bond here involved required the principal to appear instanter in the court in which he was indicted “and there remain from day to day and term to term of said Court, until discharged by due course of law, then and there to answer said accusation and any and all subsequent proceedings had relative to the charge against him, this obligation shall become void; otherwise to remain in full force and effect.”

In International Fidelity Insurance Company v. State, 495 S.W.2d 240 (Tex.Cr.App. 1973), we held a similar worded bond met the requisites of Article 17.08, § 5, Vernon’s Ann.C.C.P., so as to give the principal notice as to when to appear, and thus, the principal there had not shown an uncontrollable circumstance which prevented his appearance. We likewise hold in the instant case. Further, the testimony of the principal Caudillo at the hearing on February 23, 1976, reflected that he knew of the November 20, 1975, setting and had discussed the setting with one of his attorneys prior thereto. Another of the principal’s attorneys did testify that he did not have knowledge of the November 20th setting, but the court was the trier of the facts and could believe or reject testimony as it chose. Beck v. State, 492 S.W.2d 536 (Tex.Cr.App. 1973); Farmer v. State, 475 S.W.2d 753 (Tex.Cr.App.1972). Under any circumstances, the principal was shown to have knowledge of the setting and we cannot conclude the appellants have shown an uncontrollable circumstance which prevented his appearance in court.

Lastly appellants contend the trial court erred in entering the final judgment because the nature of the hearing contemplated by the court on November 20, 1975, was not such a hearing that required the appearance of the accused (principal) under the provisions of the Code of Criminal Procedure. The record shows the case was set for a pre-trial hearing and Article 28.01, Vernon’s Ann.C.C.P., requires the appearance of the defendant at such hearings. Appellants rely upon the testimony of one of the principal’s attorneys that an earlier setting for pre-trial hearing on November 4, 1975, was for the purpose of obtaining the District Attorney’s recommendation and advising the principal that his attorneys had seen the District Attorney’s file. They argue that since the hearing was not held on November 4th, therefore the same purposes prevailed for the November 20th setting, and such purposes do not fall under the purview of Article 28.01, Vernon’s Ann.C. C.P. There is no other testimony to show that the pre-trial hearing was to be so limited and we further observe that the inspection of the District Attorney’s file, etc., are matters relating to discovery contemplated by Article 28.01, § 1(8), supra. The contention is overruled.

The judgment is affirmed.

      . The principal did testify that about October 3, 1975, he cut the tendon in his index finger which required extensive sutures and his arm was placed in a cast. He related he took pain pills for some time. He acknowledged, however, that he was not immobile and went to work every day though he was not able to do much work. We do not find that appellants are urging this injury as an uncontrollable circumstance which prevented the principal’s appearance.


text:
    John Carl JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 53089.
    Court of Criminal Appeals of Texas.
    Oct. 6, 1976.

      Michael Allen Peters, Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge, Don R. Stricklin, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before the court on a plea of guilty, appellant was convicted of unlawfully presenting a credit card with intent to defraud (see V.T.C.A. Penal Code, Sec. 32.-31(b)(1)(A), Credit Card Abuse). Punishment was assessed at nine years.

In three grounds of error appellant complains of a variance in the name of the complainant in the original complaint and the indictment. The complaint and the indictment name the owner of the credit card to be Michael D. Savage. All of the evidence refers to the owner as Michael D. Savage. Appellant’s complaint of a variance is based on a handwritten notation of “Michele D. Savage” and a line drawn through the typed name of Michael on the complaint filed in the Justice of the Peace court, as follows:

“WITNESSES FOR EXAMINING TRIAL:
“Betty Allbrooks, 2226 Silverbonne, 682-5459 “Michael D. Savage, 10756 Bexley, 498-2367 “C.|E. Love, # 1546 HPD
“Michele D. Savage” (This name is handwritten on the complaint)

Appellant under these three grounds of error makes no complaint of the sufficiency of the indictment to properly name the complainant, or of any variance between the indictment and the proof. Neither did he make any such complaint in the trial court. Since this prosecution was based on the indictment, error, if any, in the notation on the complaint of the name of a witness for the examining trial becomes immaterial and harmless.

In his fourth ground, appellant contends the indictment is fundamentally void since it does not adequately describe the property and services appellant intended to fraudulently obtain by presenting the Texaco credit card.

The indictment alleged that appellant in Harris County on or about January 17, 1975,

“did then and there unlawfully with intent to fraudulently obtain property and services, present to Betty Allbrooks a Texaco credit card owned by Michael D. Savage, hereafter called the Complainant, without the effective consent of the complainant, knowing that the credit card had not been issued to the Defendant.”

V.T.C.A. Penal Code, Sec. 32.31(b)(1)(A), provides:

“(b) A person commits an offense if: “(1) with intent to obtain property or service fraudulently, he presents or uses a credit card with knowledge that:
“(A) the card, whether or not expired, has not been issued to him and is not used with the effective consent of the cardholder; or . .”

No motion to quash the indictment was made in the trial court, and appellant’s contention is made for the first time on appeal. Hence, only such contentions cognizable under Art. 27.08, V.A.C.C.P., to-wit, that the indictment fails to allege the constituent elements of the offense, are before this Court for review. Cox. v. State, Tex. Cr.App., 523 S.W.2d 695; American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598.

Ordinarily an indictment which charges an offense in the terms of the statute is sufficient. Baldwin v. State, Tex. Cr.App., 538 S.W.2d 109, 111. Since the constituent elements of the offense were charged in the terms of the statute, and the owner of the card and the person to whom appellant presented it were named, the indictment gave sufficient notice of the offense with which appellant was charged. See Cox v. State, supra; American Plant Food Corporation v. State, supra. See also New Texas Penal Code Forms by Morrison and Blackwell, page 45, Form 32.31A.

Appellant’s contention in his fourth ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

ROBERTS, J., concurs in result.


author: DIES, Chief Justice.

text:
    NATIONAL MORTGAGE CORP. OF AMERICA, Appellant, v. James L. MAXWELL et ux., Appellees.
    No. 7838.
    Court of Civil Appeals of Texas, Beaumont.
    May 13, 1976.
    Peter Tierney, Dallas, for appellant.
    Julius Glickman, Houston, for appellees.
   DIES, Chief Justice.

James L. Maxwell and wife, Darlene Maxwell — appellees—brought suit in Travis County against National Mortgage Corporation of America, appellant, alleging violation of the Texas usury laws and seeking recovery of the statutory penalties provided for in Tex.Rev.Civ.Stat.Ann. art. 5069-1.06 (1971).

National Mortgage filed a plea of privilege to be sued in Dallas County, Texas, and the Maxwells controverted on the basis of subpar. 3 of art. 5069-1.06. The trial court overruled the plea from which National Mortgage perfects this appeal. The Max-wells allege in their petition they are residents of Fort Bend County.

The above venue article (5069-1.06) provides that an action for the statutory penalties for usury may be brought:

“ . . .in the county of the defendant’s residence, or in the county where the interest in excess of the amount authorized by this Subtitle has been received or collected, or where such transaction had been entered into or where the parties who paid the interest in excess of the amount authorized by this Subtitle resided when such transaction occurred, or where he resides.”

Appellees contend that proof that the transaction was entered into in Travis County plus allegation that the transaction was usurious is sufficient to maintain venue in Travis County, citing Donald v. Agricultural Livestock Finance Corp,, 495 S.W.2d 592 (Tex.Civ.App. — Fort Worth 1973, no writ). Appellees’ reliance is misplaced. In Donald plaintiff resided in the county of venue. Here plaintiffs (appellees — Maxwells) reside in Fort Bend County. To maintain venue in Travis County, they must not only prove that the transaction was entered into in that county but also that the transaction was usurious. Universal Credit Co. v. Dunklin, 129 Tex. 324, 105 S.W.2d 867 (1937); Ballard v. Shock, 91 S.W.2d 385 (Tex.Civ.App. — Eastland 1933, no writ); Taylor v. Whitehead, 88 S.W.2d 716 (Tex. Civ.App. — Fort Worth 1935, no writ); Thompson v. Hague, 430 S.W.2d 293 (Tex. Civ.App. — Fort Worth 1968, no writ). Here the plaintiffs below (appellees — Maxwells) did not prove the transaction was usurious and hence failed to establish venue in Travis County. The order of the trial court overruling the plea of privilege is reversed and this cause is remanded to the trial court with instructions to transfer the cause to Dallas County.

REVERSED and REMANDED with instructions.


text:
    David RICE, Independent Executor and Trustee of the Estate of Earl Morris, Deceased, et al., Appellants, v. Rhodes Erwin MORRIS et al., Appellees.
    No. 1054.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 10, 1976.
    On Rehearing Aug. 30, 1976.
    Rehearing Overruled Oct. 7, 1976.

      Kenneth Strahan, Daniel, Morrision & Strahan, Dayton, Everett H. Cain, Liberty, Leonard E. Choate, Dallas, John A. Fuh-rhop, Galveston, W. T. Bennett, Huntsville, Edward J. Ganem, Victoria, John L. Hill, Atty. Gen., W. James Murdaugh, Jr., Herman I. Little, Jr., G. Charles Kobdish, Asst. Atty. Gen., Austin, for appellants.
    James R. Cornelius, Jr., Zelesky, Cornelius, Rogers, Berry & Hallmark, Lufkin, for appellees.
   OPINION ON MOTION FOR REHEARING

The appellees, in their motion for rehearing, have called our attention to certain clerical errors and to the fact that the appellants did not file a motion for summary judgment, therefore precluding this Court from rendering judgment for appellants. See Cowar v. Woodrum, 472 S.W.2d 749 (Tex.Sup.1971); Hinojosa v. Edgerton, 447 S.W.2d 670 (Tex.Sup.1969); Alamo National Bank of San Antonio v. Hurd, 485 S.W.2d 335 (Tex.Civ.App. — San Antonio 1972, writ ref’d n.r.e.). We, therefore, withdraw our original Opinion and the following Opinion is substituted therefor.

This is a classic “Mixed-Trust” type case. The validity of the testamentary trust was tested in the trial court in this Will Contest by summary judgment. From a judgment holding the subject trust invalid, the trustee and others appeal.

The Last Will and Testament of Earl Morris, together with a Codicil to said Will, was admitted to probate in the County Court of Walker County, Texas, on February 4, 1974. Thereafter, two of Earl Morris’ children, Rhodes Erwin Morris and Anita Morris Weston (hereinafter referred to as “contestants”) filed a Will Contest and Application for Injunctive Relief naming as defendants, David Rice, Dale Morris Woo-druff, Verna Morris, Alva Morris, Edward Morris, Texas Elk’s Crippled Children’s Hospital, Inc., and Texas Scottish Rite Hospital for Crippled Children, Inc. The Attorney General of Texas was made a party on behalf of the interests of the general public of this State. See Article 4412a, Tex.Rev. Civ.Stat.Ann.

The Will provided that the beneficiaries of the trust res were to be recipients selected from churches and hospitals operating within the State of Texas and without restrictions as to denomination or otherwise (Section Two) and to five named individuals (Section Three of the Codicil), all according to the trustee’s discretion.

The contest centers around Article IV of the Earl Morris’ Will which created the subject trust. Among the several grounds of relief asserted by the contestants in their will contest and motion for summary judgment was that Article IV of Earl Morris’ Will, which created a trust, was invalid because: 1) the trust was too broad and designated no definite and certain beneficiaries; 2) there was no ascertainable beneficiaries of the trust and it was unenforceable for lack of a beneficiary or any person or party having the right or authority to enforce such trust; and 3) the purposes of the trust were not limited to charity and no' attempt was made to create a charitable trust.

Article I of the Will of Earl Morris provides for the usual payment of debts and taxes. Article II makes arrangements for the decedent’s funeral and burial. Article III sets up a specific trust with reference to certain designated property. Article IV places all of the residue of the testator’s estate in trust over which David Rice is designated trustee. It is Article IV of the Will which contains the questioned provisions that caused this will contest. The pertinent portions of Article IV are as follows:

“ARTICLE IV.
I Give, Devise and Bequeath all of the rest and residue of my estate, of every kind and character, real, personal and mixed, and wheresoever situated, to my said Trustee, and to his successors in Trust, to hold, manage, sell, give away and distribute as follows:
* * * ⅜ * *
SECTION TWO: The principal purpose of this Trust is to authorize my said Trustee to select worthy recipients, according to his judgment, of gifts from the income and properties bequeathed and devised under Article IV hereof, said recipients to be selected from churches and hospitals operating within the State of Texas and without restrictions as to denomination or otherwise. Upon making such selection, which may be done from time to time and as my Trustee shall see fit, my Trustee shall and is hereby authorized and directed to deliver such sums of money and/or properties to such selected beneficiaries as he may see fit and may deem proper, with no limitations as to amount or number of such gift or gifts.” (Emphasis supplied.)

The decedent executed a Codicil which added three additional persons making a total of five named beneficiaries under Section Three of Article IV of the Trust. The Codicil executed about one year after the original Will stated in part:

“1.

I hereby revoke all the provisions of ARTICLE IV, SECTION THREE, and said ARTICLE IV, SECTION THREE shall hereafter read as follows:

‘SECTION THREE: The Trustee is further authorized to deliver gifts, in such amounts and at such time as he may deem proper, to Rhodes Erwin Morris, Anita. Morris, Verna Morris, Alva Morris and Edward Morris, or any of them, according to their needs. In no event, however, shall my Trustee be accountable to any beneficiary hereunder by reason of the gift of any part or portion of my estate to any other beneficiary.’

2.

I hereby revoke all of the provisions of said Will of September 18, 1970 inconsistent with the foregoing provisions. Except for the changes set forth herein-above, I hereby ratify, confirm, and republish said Will of September 18, 1970, as my Last Will and Testament.”

Section Four of Article IV sets out the terms of the trust which was limited to 20 years from the date of the death of the settlor and “ . . . unless all of the property in said trust has been fully disposed of prior thereof in which event the trust shall then terminate . . . ” Section Five of Article IV provided for the release of liability of the trustee for exercising his office of trustee, saving and excepting willfulness, misfeasance or malfeasance. Section Six of Article IV stated that after all of the trust estate had been paid over and distributed, the trust would fully and finally terminate; and upon proper accounting, the trustee would be relieved of his responsibility thereunder.

The trial court granted the contestants’ motion for summary judgment holding that Article IV (of the Last Will and Testament of Earl Morris) was invalid and that the trust therein alleged to be created was ineffectual and that said Article IV was can-celled and held for naught.

There are three appellants involved in this appeal. They are David Rice, the Independent Executor and Trustee, the Texas Scottish Rite Hospital for Crippled Children (a contingent beneficiary under Article III of the Will), and the Attorney General of Texas. They are all referred to as “appellants” hereafter. Although each appellant has filed separate briefs, the errors of which they complain are similar and such points will be treated together rather than separately.

The question before us centers on the validity of Article IV of the Will of Earl Morris (deceased) and as stated specifically by appellee in his two reply points in question form: 1) Is the trust created under Article IV of the Will invalid as a matter of law because the trust is a mixed charitable and non-charitable trust? and 2) Was the summary judgment properly granted because there was no fact issue as to the testator’s intent to create a mixed trust since the language in Article IV is clear and unambiguous? The only issue on appeal is clarified by appellees’ argument that it is not the lack of clarity that invalidates the trust of Article IV, but the improper mixing of charitable and non-charitable purposes in a single trust. We agree that the instrument designated “The Last Will and Testament of Earl Morris” is not ambiguous, but clearly evidences the intention of the testator.

As part of the background of this suit, the undisputed summary judgment evidence showed that the settlor, Earl Morris, was a man of strong will who had started out in business as a poor man with little education, possessing only a team of mules and a wagon used to haul logs. Over the years, the settlor began trading mules and horses, then automobiles and later land. He finally obtained a 5,000 acre ranch in Walker County, Texas. Along with the Walker County ranch, the settlor accumulated a sizable estate which included other land in San Jacinto County valued at over $500,000.00 and certain notes valued at over $340,000.00. The settlor named his “beloved friend”, David Rice as independent executor and trustee of the two testamentary trusts set up in his Will. The persons named in his Will are three of his children (Rhodes Erwin Morris, Anita Morris and Edward Morris) and his two sisters (Verna Morris and Alva Morris). The settlor intentionally excluded his daughter, Gail Morris Woodruff, who was a party against him in a lawsuit which is a part of the subject matter of the trust res in the first trust under Article III of the Will in question.

The courts have always held that a testator has a right to dispose of his own property in such manner and to such persons or institutions as he sees fit, so long as such disposition is not repugnant to the law. The testator’s intentions should be carried out unless they contravene some rule of law or are against public policy. It is fundamental that the primary concern of the courts in will construction is the determination of the testator’s intent and the effectuation of that intent as far as legally possible. Sellers v. Powers, 426 S.W.2d 533 (Tex.Sup.1968).

Article IV of the subject Will contains two sections with which we are primarily concerned. Section Two authorizes the trustee to select worthy recipients from “churches and hospitals” operating within the State of Texas without restrictions as to denomination or otherwise and to make gifts to such selected beneficiary or beneficiaries in his sole discretion. Section Three authorizes the trustee to deliver gifts in such amounts and at such times as he may deem proper to the specific five named persons or any one of them according to their needs.

A “mixed trust” is usually defined as one which possesses private and public elements and is partly charitable and partly for the benefit of private individuals or non-charitable objects. It is not objectionable to have a mixed trust as such. Bogert, Law of Trusts, § 65 (Fifth Edition 1973). The objectionable characteristic of a mixed trust having both charitable and non-charitable purposes, is not due to the commingling of purposes. The objectionable characteristic occurs when the charitable portion of the trust is invalid for some reason or another, or the private portion of the trust is invalid for some reason or another, and the two trusts cannot be separated and individually enforced. If a mixed indivisible trust satisfies all of the requirements for a valid charitable trust and all of the requirements of a valid private trust, there is no good reason why the courts should not carry out the intentions of the settlor by enforcing the trust. Bogert, Law of Trusts, § 65 (Fifth Edition 1973); 2A Bogert, Trusts and Trustees, § 372, p. 85. See also Moskowitz v. Federman, 72 Ohio App. 149, 51 N.E.2d 48 (1943).

The beneficiaries under Section Two are limited to a definite class, that being “churches and hospitals operating in Texas”. First, we must determine if the trust under Section Two of Article IV is for a valid charitable purpose. Many charitable trusts fail because of the type or class of named beneficiaries.

Our Supreme Court discusses at length the various definitions of charities. Boyd v. Frost Nat. Bank, 145 Tex. 206, 196 S.W.2d 497 (1946). The court quotes with approval the classification found in the Restatement (Second) of Trusts, § 368, which states that charitable purposes include “ . . . (c) the advancement of religion; (d) the promotion of health. . . . ” We hold that worthy recipients from churches and hospitals operating in Texas would constitute a charitable beneficiary. See Bogert, Law of Trusts, §§ 57, 62 (Fifth Edition 1973); 2A Bogert, Trusts and Trustees, §§ 361, 373, 375; 14 C.J.S. Charities §§ 1, 12,17; 15 Am.Jur.2d Charities, §§ 63, 76.

The indefiniteness of beneficiaries is not an objection in the case of a charitable trust. That which is capable of being made definite by the trustee’s action is sufficiently clear to enable a court to enforce a trust. Bogert, Law of Trusts, § 55, p. 210 (Fifth Edition 1973); Boyd v. Frost Nat. Bank, 145 Tex. 206, 196 S.W.2d 497 (1946); Powers v. First Nat. Bank of Corsicana, 138 Tex. 604, 161 S.W.2d 273 (Tex.Comm’n App. 1942, opinion adopted); Zweig v. Zweig, 275 S.W.2d 201 (Tex.Civ.App. — San Antonio 1955, writ ref’d n.r.e.); Rentz v. First National Bank in Corsicana, 325 S.W.2d 958 (Tex.Civ.App. — -Waco 1959, writ ref’d). Since the trustee was given absolute discretion to select beneficiaries within a definite class (hospitals or churches operating in Texas), the charitable beneficiaries of the trust are made certain by giving the trustee this discretion. The purpose of the bounty and the classes to be benefitted are sufficiently definite to make this aspect a valid charitable trust. Powers v. First Nat. Bank of Corsicana, supra; Boyd v. Frost Nat. Bank, supra; Rentz v. First National Bank in Corsicana, supra; Wilson v. Franz, 359 S.W.2d 630 (Tex.Civ.App. — El Paso 1962, writ ref’d); 14 C.J.S. Charities §§ 39, 40; 2A Bogert, Trusts and Trustees, §§ 363, 366, 371; Restatement (Second) Of Trusts, § 364.

We pause to note that a charitable trust is valid even though by its terms, the trustee is authorized to apply the trust property to any charitable purpose which he may select so long as the trustee is able and willing to make the selection. No question has been raised that the appellant trustee David Rice is not able and willing to comply with the testator’s wishes. Boyd v. Frost Nat. Bank, supra.

Gifts for charitable purposes have always been favored in courts of law and equity, and trusts which were created for such purposes are usually carried into effect upon broad and liberal principles of equity jurisprudence under circumstances where a purely private trust might fail. See Wooten v. Fitz-Gerald, 440 S.W.2d 719 (Tex.Civ. App. — El Paso 1969, writ ref’d n.r.e.). “Public charities are public blessings, and the commonwealth is interested in giving force and effect to them.” Boyd v. Frost Nat. Bank, 145 Tex. 206, 196 S.W.2d 497, 503 (Tex.Sup.1946). “ . . . public charity trusts are particular favorites of courts of equity, which are quick to protect and enforce them.” Powers v. First Nat. Bank of Corsicana, 138 Tex. 604, 161 S.W.2d 273 (Tex.Comm’n App.1942, opinion adopted). We hold that Section Two of Article IV is a valid charitable trust.

A private trust on the other hand is one where the beneficial interest is vested in one or more individuals who are or can be distinctly ascertained. The beneficiaries named must be definite and certain. 89 C.J.S. Trusts § 19; Bogert, Law of Trusts, § 34 (Fifth Edition 1975). The Will in Section Three of Article IV provides (by codicil) that the trustee is authorized to deliver gifts in such amounts and at such times as he may deem proper to the five named persons or any one of them, according to their needs. We hold that this section of Article IV sets up a valid private trust.

One of the problems that invalidates mixed trusts is where the term of the trust creates a perpetuity. If a trust extends for a period of time longer than a life or lives in being and 21 years, plus the 9 months of normal gestation, the trust is void under the Constitution, unless the Will that set up the trust was exclusively for public charities. Tex.Const. art. 1, § 26; Powers v. First Nat. Bank of Corsicana, supra. A trust for charitable purposes is not subject to the operation of the rule against perpetuities. Boyd v. Frost Nat. Bank, supra; Moore v. Sellers, 201 S.W.2d 248 (Tex.Civ.App.); Atkinson v. Kettler, 372 S.W.2d 704 (Tex.Civ.App. — Dallas 1963, aff’d 383 S.W.2d 557 (Tex.); Carr v. Jones, 403 S.W.2d 181 (Tex.Civ.App. — Houston 1966, writ ref’d n.r.e.); Bogert, Law of Trusts, § 68 (Fifth Edition 1973); Restatement of the Law of Property, § 398; 15 Am.Jur.2d Charities, § 17; 11 Tex.Jur.2d Charities, § 6.

A private trust on the other hand is subject to the rule and unless it terminates within the term of the rule, it is void. Moore v. Sellers, supra; Carr v. Jones, supra; Bogert, Law of Trusts, § 59, p. 223 (Fifth Edition 1973). Therefore, it is the possible violation of the rule against perpe-tuities in mixed trusts by the non-charitable portion of the trust (if inseparable from the charitable purposes) that causes the entire trust to fail.

A good example of this type of situation is found in the case of Carr v. Jones, supra. Under that Will in question, the trustees were to provide for the operation of a public garden (charitable) and also for a park or garden or other suitable memorial in memory of testatrix’s father (private). The term was for an indefinite time. The court held that the gift for the purpose of having a monument built was a private purpose and unlike the charitable trust was subject to the rule against perpetuities. Since the charitable purpose (public garden or park) and the non-charitable (monument) were mingled and there was no direction in the Will concerning the amount of money to be spent on one purpose as opposed to the other, the entire trust failed for the failure of the Will to impose a time limitation upon the duration of the private portion of the trust.

The Carr case holds that where there is a mixed trust, and there is no method by which the charitable and non-charitable portions of the trusts can be separated and the charitable portion preserved, and the non-charitable portion violates the rule against perpetuities, the entire trust must fail under the rule. See Bogert, Trusts and Trustees, § 372; Moore v. Sellers, supra; Green v. Austin, 222 Ga. 409, 150 S.E.2d 346 (1966).

Another typical problem that invalidates the mixed trust is where the intended charitable purposes are mingled with other purposes which are non-charitable. This causes the whole gift to fail as a charity because of uncertainty. 14 C.J.S. Charities § 22. This applies when it is uncertain whether the purpose or purposes contained in the trust instrument are charitable or non-charitable.

A good example of this type of situation is found in the case of Allred v. Beggs, 125 Tex. 584, 84 S.W.2d 223 (1935). There, the Will directed the executor, with the advice of the testator’s sister, to distribute and give to such charities and worthy objects as they shall determine. There, the court said that: if a testator leaves his estate to charity generally, but authorizes his executor to determine for what worthy purposes it shall be used, and to select the beneficiaries thereof, and the Will contains no other definite manner of selection, the trust is a personal one and not a public charity. Since the Will expressly allowed the executor to deliver the estate to “worthy objects” which might or might not be charitable at all, it was held that the Attorney General could not intervene to enforce the trust under those circumstances.

The appellees cite as their sole authority for holding Article IV of the Will invalid because it is a mixed trust, the following cases: Allred v. Beggs, 125 Tex. 584, 84 S.W.2d 223 (1935); Powers v. First Nat. Bank of Corsicana, 138 Tex. 604,161 S.W.2d 273 (Tex.Comm’n App.1942, opinion adopted); and Boyd v. Frost Nat. Bank, 145 Tex. 206, 196 S.W.2d 497 (1946). These cases provide no support for appellees’ position.

In Powers v. First Nat. Bank of Corsica-na, the question presented to the court was whether that particular Will set up a trust exclusively for public charities which was not subject to the rule against perpetuities or whether the Will set up a trust for a private object, which would be subject to the rule. The Court found that the trust was an exclusively public charitable trust and, therefore, the rule against perpetuities had no application. There was no mixed trust involved in the Powers case, only the question of whether the Will set up a private or charitable trust.

In Boyd v. Frost Nat. Bank, the Supreme Court of Texas was faced with two questions, those being: 1) whether a trust which provided that any and all net income remaining in the possession of the trustee after certain other payments were made, shall be paid to such charitable associations as the trustee shall in its absolute discretion select, was so general, vague or indefinite as to be invalid; and 2) whether the particular trust, being in perpetuity was so broad that the trustee was authorized to expend the trust income for purposes other than charitable ones, and, therefore, void as vio-lative of the rule against perpetuities. The court held that the trust was sufficiently definite and certain to be a charitable trust and it could, therefore, exist in perpetuity.

The Will before us does designate purely charitable beneficiaries (hospitals and churches) and the term of 20 years does not violate the rule against perpetuiti-es as to the private portion of the trust. So, when David Rice, the trustee exercises his discretion and makes a gift from the trust res, the gift is a charitable gift if it is made to a hospital or church operating within the State of Texas. The trustee is limited to this class of charities and in such a case, the Attorney General of Texas has a duty to enforce this provision wherever proper or necessary. Allred v. Beggs, supra.

When David Rice, the trustee exercises his discretion and makes a gift, such gift is a private gift if it is made to one or more of the beneficiaries named in Section Three (Codicil). If the trustee wishes to make such a private gift, he is limited under the trust to the specific named beneficiaries and they or any one of them have such an interest that they can enforce this provision of the trust. See Restatement (Second) of Trusts, § 120(d) “Who Can Enforce the Trust”.

If David Rice, the trustee, chooses not to make any gift to either of the above named classes (charitable or private), then the trust will eventually come to an end (20 year term). And at the end of the term, the trust will cease and the proceeds (or the balance thereof) will go as the Will so provides. All of the provisions of Article IV of the Will conform to the wishes of the set-tlor.

The appellees have not cited a single case that holds as they contend, that a mixed trust as such, for no other reason, is invalid. Nor have we been able to find a case in Texas or in the jurisprudence of any other state, which has held that a trust, having for its purposes both charitable and non-charitable objects, is invalid for that reason alone.

On the other hand in Moskowitz v. Federman, 72 Ohio App. 149, 51 N.E.2d 48 (1943), a case of striking similarity to the case at bar, an express testamentary trust having both a charitable and non-charitable purpose, was also under attack. That trust, like the trust here in question, gave to the trustees complete discretion to choose between the charitable (charitable organizations) and non-charitable (next of kin) purposes, in any proportion and in any amount they choose, and to the exclusion of one class or the other if they so desired. The trust instrument was limited to a term of 20 years after the death of the settlor. The court, in a very scholarly opinion upholding the validity of the trust, stated:

“The instrument under consideration violates none of the principles of trusts pronounced in the many cited cases and text. And it may fairly be stated that a testamentary trust which is created for the distribution of the assets of an estate to members of a definite class of persons, or to charitable organizations, or to both or to none, all within the entire discretion of the trustees, and which provides for a distribution of the entire residue of the estate at the end of twenty years from the time of testator’s death, is a valid trust, is within the rule against perpetu-ities, and which trust, if breached, may be enforced by any member of a class named as possible beneficiaries, and even though they have not been designated by the trustees to take.” (Emphasis supplied.) See also 2A Bogert, Trusts and Trustees,

§ 372, p. 84, et seq.

We hold that Article IV of Earl Morris’ Will creates a valid mixed trust and as such is enforceable. The Motion for Rehearing is GRANTED ONLY with respect to the disposition of the case. The judgment of the trial court is therefore REVERSED and the cause is REMANDED to the trial court for further proceedings consistent with the hereinabove Opinion.

REVERSED AND REMANDED.


author: KEITH, Justice.

text:
    Charles D. GARRETT, d/b/a Charlie’s Drive-Through, Appellant, v. STANDARD FIRE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Appellee.
    No. 7840.
    Court of Civil Appeals of Texas, Beaumont.
    July 29, 1976.
    Rehearing Denied Aug. 19, 1976.

      James W. Mehaffy, Jr., Beaumont, for appellant.
    Dale Dowell, Beaumont, Osborne J. Dykes, III, Houston, for appellee.
   KEITH, Justice.

Plaintiff below appeals from an adverse judgment rendered in his suit to recover on a policy of fire insurance. The defendant insurer interposed several policy defenses including arson and the jury verdict was adverse to the contentions of the plaintiff. The judgment followed the verdict, and this appeal has been perfected from the order overruling plaintiff’s amended motion for new trial.

Garrett had been operating Charlie’s Drive-Through cafe or restaurant in West Orange for some time before it was destroyed by fire during the early morning hours of February 28, 1973. We will have occasion to summarize the evidence in connection with a discussion of plaintiff’s first two points of error. At this time, we summarize the jury findings in the margin.

Points one and two, reproduced in the margin, complain of the admission of certain testimony from defendant’s witness, Troy Standley, an arson investigator. Standley qualified as an expert witness on the subject of fires of incendiary origin, having had more than ten years’ experience in this specialized field. He testified that he made an exhaustive investigation a few weeks after the fire and determined that the fire was of incendiary origin. He fixed the point of origin of the fire to be under a sink against the back wall of the restaurant building; he eliminated as possible sources of the fire the normal hazards, including electrical fuseboxes, wiring, the hot water heater, compressors and condensers, etc.

It was shown by other testimony that plaintiff drastically increased the insurance coverage on the building about a month before the fire. Insurance agent Boehme wrote the coverage from the time plaintiff acquired the building in 1970 until December of 1972. In 1971, plaintiff insured the building for $2,500, with $6,600 on the contents; in 1972, the coverages were increased to $7,500 and $10,000, respectively, but all of the coverage (except one policy for $2,500 on the building) lapsed on December 8, 1972. On January 8, 1973, after the building had been almost completely uninsured for a month, plaintiff sought out another insurance agent, Thomas Sorrels, to write the insurance. This time he sought coverage: on the building, $25,000; on the contents, $15,000; and for earnings (which he had never carried before), $8,000. He told Sorrels that there was no mortgage upon the building and the policy was issued with no mortgagee shown as a loss payee. In truth and in fact, the building had substantial first and second mortgages.

Further, it was shown that plaintiff was under severe financial strain. He showed a business loss of $4,461 during the calendar year 1972 upon his income tax return, although his bookkeeper’s records showed the loss to be $2,829. According to these private records, the total profit for the fourteen months preceding the fire was less than $200.

Plaintiff had been in ill health before the fire; he had trouble keeping a good manager; three of his suppliers had sued him on unpaid bills; both the state and federal governments had filed tax liens against his property; he was two months delinquent in his mortgage payments on a Beaumont operation and the holder of the mortgage was exerting pressure to make the payments current; he was almost two months delinquent upon his first mortgage payments on the premises which burned; he was behind on the second lien payments in excess of $5,000.

The fire occurred early on a Tuesday morning, February 28, 1973. Plaintiff had closed the place without any definite plans for reopening on the preceding Sunday night, February 26, when he laid off the last two employees and removed the cash register and the soft drink machine.

Standley testified to his investigation and, in doing so, admitted that he had talked with firefighters who were present while the building was burning, one or more of plaintiff’s former employees, the plaintiff himself, and others. Upon cross-examination, he was forced to admit that, at least in part, his opinion that appellant had started the fire was based upon hearsay. Plaintiff now contends that he is entitled to a reversal because of such admission by Standley. We disagree and overrule the first two points.

The leading case in this state is Bryant v. Trinity Universal Insurance Company, 411 S.W.2d 945, 951-953 (Tex.Civ. App. — Dallas 1967, writ ref’d n. r. e.), where the authorities are discussed in detail. We adopt as ours this language from the opinion:

“We are unwilling to hold that the testimony of an expert witness, whose opinion is based largely on facts actually known to him or proved to be true, is automatically rendered valueless and inadmissible merely because in the course of his investigation he heard someone make a casual hearsay statement which perhaps had some slight part in the formation of his opinion.” (411 S.W.2d at 952)
“It is our view that the admissibility of such expert testimony should be left to the sound discretion of the trial judge and that his decision should not be disturbed unless it be shown that he has abused that discretion. . . . No abuse of discretion was shown in this case, and we therefore hold that there was no error in admitting this witness’ expert opinion as to the origin of the fire.” (Id. at 953)

The Supreme Court, discussing the foundation of the opinion testimony of an expert witness in Lewis v. Southmore Savings Association, 480 S.W.2d 180, 186-187 (Tex. 1972), cited Bryant twice. The rule laid down in Bryant has received wide acceptance; see, e. g., Cisneros v. New Hampshire Insurance Company, 475 S.W.2d 351, 355 (Tex.Civ.App. — Corpus Christi 1971, no writ); Bell Aerospace Corporation v. Anderson, 478 S.W.2d 191, 198 (Tex.Civ.App.— El Paso 1972, writ ref’d n. r. e.).

See also, Payne v. Hartford Fire Insurance Company, 409 S.W.2d 591, 600 (Tex. Civ.App.—Beaumont 1966, writ ref’d n. r. e.); Annotation, “Cause of Fire—Opinion Evidence,” 88 A.L.R.2d 230 (1963).

There was no direct eyewitness testimony supporting the jury findings that the appellant caused the fire to start in his building for the purpose of collecting the proceeds of the insurance policy now in suit. However, the careful trial court instructed the jury upon the law of circumstantial evidence and the charge comes to us without objection. It has long been the law in this state that arson may be established by circumstantial evidence. See Joy v. Liverpool, London & Globe Ins. Co., 32 Tex.Civ. App. 433, 74 S.W. 822, 825 (San Antonio 1903, writ ref’d), wherein the court held:

“In the proof of an issue of such a character as arson, involving, as it does, such moral turpitude and criminal intent, every circumstance tending to prove the guilt of the party charged with the commission of the offense is admissible in evidence.”

The crime of arson, being in defiance of law, is ordinarily conceived in secrecy and executed in such a manner as to avoid detection and exposure; and proof of such an unlawful enterprise must, in the very nature of things, be made by circumstances, and every circumstance which tends to cast light upon the incident is legitimate and proper. Cf. San Antonio Gas Co. v. State, 22 Tex.Civ.App. 118, 54 S.W. 289, 292 (San Antonio 1899, writ ref’d). Having reviewed the record carefully, we are of the opinion that the trial court did not abuse its discretion in permitting the testimony to go to the jury.

In any event, as was done in several of the cited cases following Bryant, supra, if we be mistaken in so holding, we are, nevertheless, definitely of the opinion that no reversible error is shown. There was a wealth of other evidence admitted and it cannot be said that the admission of this bit of evidence was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. If there be error in the admission of the opinion evidence, such error was harmless.

Before entering into a discussion of plaintiff’s third, fourth, and fifth points of error, we must dispose of a troublesome threshold question. The cause having been heard by a jury, plaintiff was required to file a motion for new trial to preserve any complaints as to the admission of evidence or relating to the factual sufficiency of the evidence to support the answers of the jury to the several special issues. Tex.R.Civ.P. 324; Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887, 889 (1960); Airway Ins. Co. v. Hank’s Flite Center, Inc., 534 S.W.2d 878 (Tex.1976).

Plaintiff’s points three, four, and five are substantially alike, each challenging one or more findings of the jury to the special issues submitted. Point four is typical and is set out in the margin.

Having examined the assignments of error set forth in the amended motion for new trial, we note that they are grouped into units of three but each complains of the error of the court in submitting the issue because (a) “there was no evidence to support submission thereof, and the jury’s answer thereto”; (b) “there was not sufficient evidence to support submission thereof, and the jury’s answer thereto”; and (c) “because the jury’s answer thereto was against the great weight and preponderance of the evidence.”

We consider points three, four, and five multifarious and too general to comply with the requirements of Tex.R.Civ.P. 418. The subject was treated in detail by Justice Bissett in Barber v. Corpus Christi Bank & Trust, 506 S.W.2d 254, 257-258 (Tex.Civ. App. — Corpus Christi 1974, no writ), and we adopt his treatment of the subject. See also, Ives v. Watson, 521 S.W.2d 930, 933 (Tex.Civ.App. — Beaumont 1975, writ ref’d n. r. e.).

However, if the points of error were to be considered as not being multifarious, a careful examination of each of the complaints — reviewed according to the applicable standard — fails to reveal reversible error.

Finding no error, the judgment of the trial court is affirmed.

AFFIRMED.

STEPHENSON, J., not participating.

      . The jury found: (1) plaintiff “set fire, or caused fire to be set” to the insured premises on the occasion in question; (2) the hazard of fire was increased on the occasion in question by means within the knowledge and control of the plaintiff; (3) plaintiff misrepresented or concealed from the writing agent of the insurer the true status of the mortgages upon the insured premises; (4) such misrepresentation or concealment was willful; (5) the “mortgage status” of the restaurant building was material; (5-A) that the writing agent of the insurer actually relied on the misrepresentation or concealment in issuing the policy in question. The jury answered “we do not” to Special Issue No. 6 inquiring if plaintiff furnished the proper proof of loss to the defendant in accordance with the policy provisions. Under our view of the record, the remaining findings are immaterial and need not be further mentioned.

      . Point of Error No. 1: “The Trial Court erred in admitting the testimony of the witness Standley concluding that the fire was incendiary in origin and that Garrett was responsible for it, because such testimony was conjectural and speculative, based on hearsay, because the same invades the province of the jury, and because a sufficient predicate was not laid for the expression of this opinion.”
      Point of Error No. 2: “The Trial Court erred in admitting testimony concerning Garrett’s financial affairs, because the same was immaterial, irrelevant, and prejudicial.”

      . The rule enunciated in Bryant and Payne, supra, has now been introduced into the criminal law of this state. See Burrow v. State, 481 S.W.2d 895, 898 (Tex.Cr.App.1972).

      . Point 4: “The Trial Court erred in entering judgment for the defendant, because there was no evidence, or insufficient evidence, to support the jury’s answers to Special Issues Nos. 3, 4, 5, and 5A. In the alternative, the jury’s answers to said special issues were against the great weight and preponderance of the evidence. (Germane to Assignments of Error XIV through XXV).”
      The assignments of error complain that the evidence did not support the submission of the several issues. The assignments upon which the points are based mention “submission ” rather than the findings of the jury. Thus, the points are, essentially, “no evidence” points. Meadows v. Green, 524 S.W.2d 509, 510 (Tex. 1975).