text:
    STATE of Missouri, Plaintiff-Respondent, v. Jaronda HOUSTON, Defendant-Appellant.
    No. 37585.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 31, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Sept. 30, 1976.
    Application to Transfer Denied Nov. 8, 1976.

      Robert C. Babione, Marilyn Wallach, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Charles Sindel, St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Defendant was convicted of the illegal sale of marihuana, a felony, in violation of § 195.020 RSMo. Supp.1975. The jury affixed punishment at five years imprisonment. On appeal, defendant charges that the trial court erroneously failed to instruct the jury on the lesser or included offense of first offense possession of 35 grams or less of marihuana, a misdemeanor under § 195.-200.1(l)(a). Defendant also claims error as a result of prosecutorial argument. We find that the evidence does not support the giving of a possession instruction, nor did the prosecutor’s argument require mistrial. We therefore affirm the judgment.

In the State’s case, two undercover St. Louis police officers assigned to the Tactical Anticrime Team testified that defendant approached them and offered to sell them a $5.00 package of marihuana. One of the officers gave the defendant $2.00, and the defendant was thereupon arrested for an illegal sale of marihuana, a § 195.020 violation, and a felony under § 195.200.1(4).

Defendant’s evidence was that he had approached one of the officers and had asked for a marihuana cigarette; that the officer responded that he had none but he, too, would like to have a “joint.” Defendant then offered to take the police where a buy could be made. According to the defendant, he took $2.50 from one of the officers and with a contribution of $2.50 of his own money, he made a purchase of a $5.00 package of marihuana from a third person. He then gave the marihuana to one of the police officers, intending to share it equally with them. Shortly after the defendant gave the bag of marihuana to the police he was arrested for the illegal sale. Therefore, under both the police and defendant’s versions of the transaction, the police gave defendant some money and the defendant gave the police some marihuana.

The jury was instructed in accordance with MAI-CR 14.10 on the illegal sale of marihuana, but defendant’s instruction covering only possession of marihuana was refused. Defendant admits his possession of the marihuana but denies any sale of it. It is defendant’s contention that the possession of marihuana is a lesser or included offense of a sale and that an instruction on possession was mandatory. We disagree with defendant’s contention that a possession instruction was necessary, for we find under the circumstances of this case that defendant’s possession of the marihuana was not a lesser or included offense of the greater offense of sale. We find that there was no evidence to support a submission of possession of marihuana only. The evidence of both the State and the defendant was that the police gave the defendant money, and in exchange therefor the defendant gave the police marihuana. The defendant’s testimony in this regard was crushing to his cause:

“Q. [prosecutor]. . . . You did sell them [the police] marijuana, is that right?
A. [defendant] Yes, sir.”

Defendant readily admitted the exchange of money and marihuana between the police and him. Thus, there was no case of simple possession.

In State v. McCoy, 530 S.W.2d 8 1. c. 10 (Mo.App.1975) it was said:

“Whether an instruction upon a lesser or included offense is required, however, depends upon a consideration of the evidence presented. ‘An instruction on the lesser or included offense is required only if there is evidence to support such a submission. Where the evidence so clearly shows the commission of the more serious crime as charged that no other interpretation of the defendant’s conduct is reasonably possible, * * *’ a defendant is not entitled to an instruction on the lesser or included offense.” (citing and quoting from State v. Watson, 364 S.W.2d 519, 522 (Mo.1963) and State v. Webb, 518 S.W.2d 317, 321 (Mo.App.1975). (Emphasis added).

There was no evidence by either the State or defendant from which the jury could find defendant’s offense was mere possession of marihuana subject to the provisions of §§ 195.020 and 195.200.1(l)(a). The only evidence was that there was more than possession on defendant’s part, for there was an exchange of marihuana for money. Accordingly, there was no evidentiary basis for instructing on possession, and the trial court did not err in failing to submit such an instruction. It is basic legal rubric that an instruction is not to be given where the evidence will not support it. State v. Kelly, 365 S.W.2d 602 (Mo.1963); State v. Umfleet, 538 S.W.2d 55 (Mo.App.1976); State v. Lane, 537 S.W.2d 569 (Mo.App.1976); State v. Ivery, 534 S.W.2d 107 (Mo.App. 1976); State v. McCoy, supra.

The case before us is similar to State v. Sykes, 478 S.W.2d 387 (Mo.1972), in which a sale of marihuana was found to have taken place where a law enforcement officer gave the defendant a sum of money for marihuana never established to have been in actual custody of the defendant but delivered to the law enforcement officer by a third party. In Sykes, the jury was instructed that a sale was the acceptance of payment for and delivery of an article at a fixed price to be paid. We believe that under the facts of this case, even according to the defendant’s version, the officer gave defendant money and the defendant delivered the officer marihuana. Thus, no less than a sale of marihuana took place between the police officer and the defendant. See State v. Lemon, 504 S.W.2d 676 (Mo.App.1973).

A second issue raised by defendant concerns the prosecutor’s closing argument which the defendant asserts should have resulted in a mistrial. During the closing argument, defendant’s counsel stated to the jury that the arresting police officers were lying to make a sale case out of a mere unlawful possession offense. In retaliation, the prosecutor argued:

“Ladies and gentlemen of the jury, Miss Wallach has gotten up and told you the defendant is guilty of possession but not guilty of sale, the officers lied and they made a sale case out of a mere possession case, but what Miss Wallach hasn’t told you is that any time one person transfers marijuana or any other schedule substance to another person that’s a delivery. That’s the same thing as a sale. These police officers know this.”

Defendant’s counsel objected to the comment but did not request a mistrial. Defendant insists that whereas the defendant was charged with an illegal sale, the prosecutor’s argument changed the offense to an illegal delivery. The prosecutor explained to the jury that if the defendant’s version were to be believed, there had been at least a delivery of marihuana, which under § 195.200.1(4) carried the same penalty as a sale; hence, the police did not have to prevaricate to seek a felony conviction against defendant. We find that the prosecutor’s remarks were retaliatory in nature, and there was no abuse of the trial court’s discretion in overruling defendant’s objection or in failing sua sponte to declare a mistrial. State v. Blankenship, 536 S.W.2d 520 (Mo. App.1976); State v. Knapp, 534 S.W.2d 465 (Mo.App.1975).

The judgment is affirmed.

SIMEONE, P. J., and KELLY, J., concur.

      . Statutory references are to RSMo. Supp.1975, unless otherwise noted.

      . “I submit, yes, those police officers are lying, as harsh as that may sound. I’m sorry to have to say that. I wish I could believe a police officer is incapable of lying but that’s not true. They’re human beings just like the rest of us and I believe in order to make a sale they feel they had to tell the story the way they told you because if they told it the way it happened it wasn’t a sale, it was possession. The police officer had to lie on the stand and Mr. Houston has admitted to a crime, he’s admitted to a misdemeanor.”

      . The defendant’s argument on brief is broader than the specific objection made at trial, but we limit our consideration to the trial objection. State v. Umfleet, supra; State v. Blankenship, 536 S.W.2d 520 (Mo.App. 1976).

      . Every instance of a prosecutor’s exceeding limits of proper argument is not automatic ground for mistrial or reversal on appeal. State v. Raspberry, 452 S.W.2d 169 (Mo. 1970); State v. Knapp, supra.


source: Caselaw Access Project

author: DOWD, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Harold MASSEY, Defendant-Appellant.
    No. 37483.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 21, 1976.

      Shaw, Howlett & Schwartz, St. Louis, Joe G. Harms, II, Salisbury, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   DOWD, Judge.

Defendant was convicted by a jury of burglary in the second degree, § 560.070 RSMo 1969, and sentenced to 4 years in the custody of the Department of Corrections under the Second Offender Act. Defendant appeals.

The state’s evidence against defendant relied primarily upon testimony given by Vicent Gann. Gann testified that he owned and operated a business called the Midwest Bargain Barn. Gann went to the building housing his business at approximately 7:45 p. m. on Sunday April 6, 1975. As Gann prepared to unlock the plate glass door in the front of the building, he saw a man that he identified as the defendant bending down and standing up behind a counter in which binoculars were stored. Gann testified that defendant stood close to the cash register and that a box was on the counter which had not been left on the counter at the close of business. Gann recognized the defendant as the man who had sold Gann an air compressor at the Midwest Bargain Barn the prior day. When Gann last left his business, he had locked the doors and windows and none of the windows were broken. Gann said that after he observed defendant in the building he jumped back from the door, hoping defendant had not seen him. Gann then left the building to summon police. When Gann and the police returned, they found a rear window broken, and Gann discovered that $10.00 from the cash register and a set of binoculars were missing from the store. Defendant was not present. An automobile parked in the Midwest Bargain Barn’s parking lot belonged to defendant.

Defendant argues that the state did not prove the specific intent element of burglary and that therefore the trial court erred in denying his motion for judgment of acquittal and erred in denying his motion for a new trial. We disagree. The state presented -sufficient evidence to allow a jury to find that defendant broke and entered the Midwest Bargain Barn with the intent to steal. In the typical burglary prosecution, the specific intent requirement is proven by circumstantial evidence. The state has sufficiently proven the intent to steal in a burglary prosecution if the state has introduced evidence showing the accused has broken and entered a building in which goods, merchandise, or other valuable things are kept. State v. Pauley, 515 S.W.2d 824, 825-26 (Mo.App.1974). In the case before us, the state produced evidence that defendant was identified in a building which had been secured when left. Defendant, who had no right to be in the building, was seen investigating the contents of the store, and a rear window was found broken. There was $10.00 and a pair of binoculars missing from the store. The state’s evidence is sufficient to permit a jury to find that defendant broke and entered the building. State v. Smith, 521 S.W.2d 38, 40 (Mo.App.1975). Similarly, the state’s evidence is sufficient to permit the jury to find that defendant entered the building with the intent to steal. State v. Washington, 484 S.W.2d 267, 270 (Mo.1972). The fact that the jury found the defendant guilty of burglary but failed to find the defendant guilty of stealing does not disprove defendant’s intent to steal as an element of the burglary conviction. State v. Pauley, supra at 825.

Defendant also argues that the trial court erred in permitting the introduction of Gann’s testimony that defendant attempted to bribe Gann not to testify and erred in permitting the prosecutor to comment upon such evidence in his opening statement and closing argument. Gann testified that, following defendant’s arrest, defendant offered Gann $1000 to $2000 dollars or whatever amount Gann would want to “buy a hat” because defendant feared for his life should he be sent to the penitentiary. We believe Gann’s testimony was properly admitted by the trial court. Evidence showing an accused’s attempted fabrication or procurement of false evidence, attempted destruction of evidence, or attempted subornation may be received as evidence of guilt of the main facts charged. State v. Seals, 515 S.W.2d 481, 484 (Mo.1974); State v. Hoyel, 534 S.W.2d 266, 269 (Mo.App. 1975).

Permitting the prosecutor to comment upon Gann’s testimony was within the broad discretion accorded the trial court to control oral argument. State v. Kimmins, 514 S.W.2d 381, 382 (Mo.App.1974). The prosecutor referred to the offer of the defendant to Mr. Gann of a $1000 or $2000 to buy a hat if Mr. Gann would not testify against him. The trial court did not err in allowing the prosecutor’s opening statement and argument to the jury which were confined to the record and the legitimate inferences to be drawn therefrom. State v. Fox, 510 S.W.2d 832, 838 (Mo.App.1974).

Finally, defendant argues that the trial court erred in submitting both Instruction Number 5 and Number 6 to the jury. Instruction Number 5 (MAI-CR 7.32) is the verdict directing instruction for burglary and required the jury to find that defendant broke and entered with the intent to steal. Instruction Number 6 (MAI — CR 7.34) is the verdict director for burglary and stealing. The record fails to show that the defendant’s attorney made a specific objection to the instruction prior to the instruction being given to the jury. In his motion for a new trial, he alleges only that the court “committed prejudicial error in submitting Instructions 5 and 6 to the jury.” The defendant fails to state to the trial court in what manner these two instructions are defective or improper. Thus, defendant has not preserved the issue for our review. State v. Rennert, 514 S.W.2d 579, 580 (Mo.1974). However, submission of both Instructions Number 5 and 6 is not error. If an accused is prosecuted for both burglary and stealing the court should submit both an instruction for burglary and stealing and a separate instruction for burglary. MAI — CR No. 7.34, Notes on Use 2. A jury finding of not guilty on the charge of stealing does not negate a guilty finding on the charge of burglary even though the burglary charge alleges intent to steal. State v. Pauley, supra at 825.

We have not found any error by the trial court and affirm defendant’s conviction.

The judgment is affirmed.

CLEMENS, P. J., and WEIER, J., concur.

      . The specific intent element of burglary in the second degree is the “intent to steal or commit any crime” in the building which is broken and entered. § 560.070 RSMo 1969.

      . We note that, at trial, defendant made no objection to the prosecutor’s opening statement and objected only to the use of the term “buying off” in the prosecutor’s closing argument. The defense objected to the term “buying off’ as not being “fair” or “warranted by the evidence,” and the trial court instructed the prosecutor to stay within the record.


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Glezey TAYLOR, Defendant-Appellant.
    No. 37404.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 21, 1976.

      Richard A. Fredman, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant Glezey Taylor appeals from a jury conviction of attempted burglary, second degree. Appellant asserts that the trial court erred in overruling his motion for acquittal because there was insufficient evidence to show that he actively and affirmatively aided and abetted the commission of the crime. Appellant also contends that the trial court erred in admitting into evidence his statement made to police at the time of his arrest because there was no showing that appellant knowingly and intelligently waived his constitutional rights. Upon our review of the record, we have discovered insufficient evidence to constitute a submissible case against appellant. We must, therefore, reverse the decision of the trial court.

Because appellant challenges the sufficiency of the evidence, “in determining the sufficiency of the evidence, this court accepts all evidence, circumstantial or direct, tending to support the conviction together with all favorable inferences reasonably to be drawn therefrom,” State v. Lemon, 504 S.W.2d 676, 679 (Mo.App.1973).

Viewed in the light most favorable to the state, the evidence showed the following. At about 10:30 A.M., a mailman saw appellant and a companion in the vicinity of an apartment at 6001a McPherson Avenue, on the north side of the street. The appellant was standing alongside his car parked at the curb about (20) twenty feet from where his companion was standing inside the screen door of the apartment. The mailman continued on his delivery route on the south side of the street but kept looking over his shoulder to observe the activities of the two men since he was familiar with the occupant of the apartment and knew that he had left for work at 5:00 A.M. The mailman could not see what the man at the door was doing or if he was doing anything. The mailman returned on his route on the north side of the street. When he was about fifty (50) feet away from the apartment, the man at the door walked down the driveway. He and the appellant got into the car and drove away. The mailman did not see anything in the hands of the man as he walked down the driveway. When he delivered the mail at 6001a McPherson Avenue, he noticed the front door had been pried at as evidenced by pry marks and a broken lock. He, therefore, alerted a neighbor to call the police. Before the police arrived, as the mailman was making deliveries in the next block, the appellant and his companion drove by him again, pulled over to the curb for a few minutes and then drove away.

When the police arrived, the mailman gave them a description of the two men and the car license number. The police arrived -at the appellant’s house at approximately 11:30 A.M. A few minutes later, appellant and his companion arrived. Both men were arrested for suspicion of burglary, placed in the patrol car and advised of their rights. The arresting officer looked into appellant’s car and found a screwdriver and crowbar lying on the floorboard on the passenger side. Microscopic examination of the screwdriver and crowbar revealed nothing on these tools matching any of the wood samples from the apartment door. It was established, however, that this microscopic examination produced positive results in only about one-third of the cases.

Over the objection of defense counsel, a policeman recounted a statement made by appellant at the police station. The appellant’s statement was to the effect that he had been in the 5900 block of McPherson Avenue eating hamburgers and talking to a friend whose name he could not remember and that he had not picked up Charles Martin, the man with whom he was arrested, until 11:00 A.M., on Cora Street.

Appellant testified and offered explanations of his conduct and of the presence of the tools in his car.

To make a submissible case of aiding and abetting the state must introduce evidence of more than mere presence at the scene of the crime, State v. Minor, 531 S.W.2d 101, 102 (Mo.App.1975). Presence is but one factor that may be viewed as creating an inference of guilt. Association with other parties before, during and after the offense may also be an indicium of guilt, State v. Burks, 521 S.W.2d 11, 15 (Mo.App. 1975). Flight from the scene of the crime or from arresting officers might also be incriminating, State v. Thompson, 363 S.W.2d 711, 715 (Mo. banc 1963). Basically, to make a submissible case there must be some evidence that “the defendant in some fashion associated himself with the venture or participated in the crime in some manner as something he wished to bring about or to make the offense succeed,” State v. Jackson, 519 S.W.2d 551, 557 (Mo.App.1975). In addition, where the evidence against appellant is wholly circumstantial—

“In order to warrant a conviction or make a submissible case based upon circumstantial evidence, the facts and circumstances must (a) be consistent with each other, (b) be consistent with the hypothesis of the guilt of the accused, (c) be inconsistent with innocence, and (d) point so clearly to guilt as to exclude every reasonable hypothesis of innocence. . . .” (State v. Cain, 507 S.W.2d 437, 441, Mo.App.)

There are, of course, numerous cases dealing with the sufficiency of the evidence of aiding and abetting. The state’s brief presents three cases in which submissible cases were found. All appear distinguishable from the present case.

In United States v. Jarboe, 374 F.Supp. 310 (W.D.Mo.1974), cert, den., the defendant admitted driving his partner to the bank in order to case the bank. The defendant stayed outside in the car with the motor running and helped his partner to hide after the bank robbery. The defendant’s contention was that there was no evidence that he shared the intent of his partner in robbing the bank because he did not know his partner was actually robbing the bank until he came out. It was in this context, that the Jarboe court disposed of the defendant’s contention on grounds that, “One who is the driver and ‘lookout’ or simply a ‘lookout’ aids and abets the commission of [the] crime. One who takes another to the scene of the crime and assists the active culprit to get away cannot claim innocence.” Id. at 315. In Jarboe, the defendant, in effect, admitted involvement and attempted a technical argument to overturn his conviction. In the present case, there was no admission of involvement or evidence of a pre-arranged scheme or attempts at concealment.

In a second case advanced by the state, State v. Hudson, 508 S.W.2d 707 (Mo.App. 1974), the defendant was charged with robbery of a delicatessen truck and assault of a police officer. The evidence showed that defendant and a friend approached a delicatessen truck with guns in hand. The defendant then apparently said that he did not think they should go through with the robbery. He walked around behind the truck. When a policeman approached, the defendant jumped out and shot him. To answer defendant’s contention that there was insufficient evidence to support the robbery conviction, the court noted:

“Under these facts, defendant’s activity at the scene of the crime was more than mere presence. . . . Presence, companionship and conduct before and after the offense are circumstances from which one’s participation in the criminal act may be inferred. . . .” Id. at 709.

It seems that the defendant in Hudson, supra, was much more clearly involved in an active way in the perpetration of the crime than the appellant in the present case.

The final case suggested by the state, State v. Ramsey 368 S.W.2d 413 (Mo.1963) is the closest parallel to the present case. In Ramsey, the police were called at 2 A.M. to a store where a burglary had just been committed. When they arrived, one man was just entering a car in which the defendant was a passenger. A third man fled. A search of the car revealed a padlock, a tire tool, and a,pinch bar on the floor behind the front seat. The padlock was the one that had been on the door of the store; analysis of the tire tool revealed paint matching the paint on the store door. Recognizing that every case must be decided on its own facts and that “one’s ‘presence’ may have substantially different meanings and raise wholly different inferences under differing circumstances. . . .” Id. at 417, the Ramsey court concluded that:

“. . . Here there were physical facts showing the commission of a crime, and we conclude that, under all the circumstances, a finding of defendant’s guilt did not rest upon mere suspicion, conjecture, surmise or inference upon inference. ...” Id. at 418.

In the present case, we find no such hard evidence of the actual commission of a crime by appellant and his companion because the tools found in appellant’s car could not be connected with tools used in the attempted burglary. In addition, appellant’s presence at 10:30 A.M., in a residential area seems less suspicious than presence outside a closed, burglarized store at 2:00 A.M. Finally, there is no evidence of attempted flight upon encountering the police.

Another pertinent case is State v. Simmons, 494 S.W.2d 302 (Mo.1973). In Simmons, the police having been advised of the presence of prowlers onboard a large boat arrived at the scene at about 6:00 A.M. When they arrived, they saw two men passing items over a fence. The defendant was standing on the first deck and had a clear view of his two companions. Upon sighting the police, he fled. Recognizing that each case must be judged on its own facts and that one’s “presence” may have different meanings depending on the circumstances, the Simmons court held that the evidence established more than mere presence, id. at 305. The fact that the defendant admittedly had trespassed onto the boat with his two friends coupled with evidence of his clear view of the active perpetration of the crime and his unexplained flight were held sufficient to constitute a submissible case, id. In the present case, there is neither admitted involvement in the preparatory stages of the crime nor flight.

In contrast to the cases discussed above, the appellant has directed our attention to State v. Castaldi, 386 S.W.2d 392 (Mo.1965), a case in which the defendant’s tampering conviction was reversed on appeal because of insufficient circumstantial evidence. In Castaldi, defendant was discovered in the woods along with two companions who were cutting up a stolen car with torches; Castaldi was just standing watching. He denied involvement in the cutting operation and insisted that he and his partners had discovered the burning car while walking through the woods and had attempted to extinguish the fire with dirt and water. No traces of dirt or water were found on the car. When the police expanded their search beyond the immediate area of the scene of the cutting, Castaldi left the area in the car of one of his companions. In holding that the state had failed to carry its burden of proof to show circumstances inconsistent with innocence, the court noted:

“. . . [T]he most that can be said is that the state proved Castaldi’s presence at the scene of the crime, an opportunity to commit the crime, suspicious circumstances, and perhaps flight.” Id. at 395.

We feel that the Castaldi case suggests a proper analysis of the present case. In both Castaldi and the present case, the defendants offered alibi stories which seemed to be contradicted by the evidence. In both cases, the state’s evidence showed simply presence at the scene. In neither case, was there any clear evidence of active involvement. The state attempts to distinguish Castaldi on the basis that the defendant in the present case was acting as a “lookout.” Characterization of the appellant as a “lookout” is, of course, merely conclusory, cf. United States v. Irons, 475 F.2d 40, 42 (8th Cir. 1973). No evidence was introduced that appellant warned his companion of the approach of the mailman. Actually, the present case presents a more compelling situation for reversal of the conviction than in Castaldi. In the case now before us, there was no evidence of attempted flight by the appellant. In addition, the evidence that the burglary was actually attempted by the appellant’s companion is wholly circumstantial.

Our review of the record reveals no evidence upon which a jury could legitimately determine that the state demonstrated appellant’s guilt beyond a reasonable doubt. “. . . Mere suspicion, however, strong, will not supply the place of evidence when life or liberty is at stake.” State v. Jones, 106 Mo. 302, 17 S.W. 366, 369 (Mo.1891). Since it also appears from the record and briefs in the case that the state would be unable to present any new evidence in a new trial, the proper course is to order the discharge of the appellant, State v. Morse, 503 S.W.2d 450, 451 (Mo.App.1973).

Because of our disposition of appellant’s allegation of insufficient evidence to support the conviction, we need not reach the issue of alleged error in the admission of appellant’s statements to the police.

Judgment reversed and defendant ordered discharged.

WEIER, P. J., and RENDLEN, J., concur.

      . Because we are only judging the sufficiency of the evidence, we must assume that the jury totally disbelieved the appellant’s explanations.

      . See Mo. Digest, Annot. Criminal Law


author: PER CURIAM.

text:
    Ed M. PAYNE d/b/a Ed M. Payne Insurance, Plaintiff-Respondent, v. CREEK AUTO WORKS, INC., Defendant-Appellant.
    No. 10129.
    Missouri Court of Appeals, Springfield District.
    Sept. 27, 1976.

      Jerry Reynolds, Springfield, for plaintiff-respondent.
    Carl E. Yates, Yates, Mauck, Robinett & Hannah, Incorporated, Springfield, for defendant-appellant.
   PER CURIAM.

The notice of appeal in this case was filed September 10, 1975, and following a six-month extension of time in which to file the transcript by the trial court and an additional thirty-day extension by this court the transcript was filed two days late on April 12, 1975.

Appellant’s brief was due to be filed with us within 60 days after the date the transcript was filed. Rule 84.05, V.A.M.R. At appellant’s request we granted two separate thirty-day extensions of time for filing of its brief, the last such extension expiring on September 10,1976. On that date appellant filed its third motion for extending the time to file its brief, seeking an additional thirty-day period, because the “press of other matters” had prevented appellant’s counsel from completing the brief. This was the same reason given for appellant’s previous motions to extend the time for filing its brief.

Since at the time the third motion was filed with us appellant had already had in excess of 150 days since the transcript was filed to prepare its brief, we can only conclude that all other matters were considered more important than the appeal pending in this court. The stated reason for delay constitutes no legal excuse for failure to comply with the rules governing appeals.

This dismissal should serve as a caveat that the leniency experienced by the Bar in the past because of attending to other legal business has come to an end. This oft-stated reason will no longer be recognized in this District as a ground for extending the time in which briefs are to be filed.

Appellant’s motion is denied and the appeal is dismissed for failure to perfect. Rule 84.27, V.A.M.R.

All concur, except STONE, J., who took no part in the consideration or decision of this case.


author: KELLY, Presiding Judge.

text:
    In re MARRIAGE OF Reita Leone MICHALSKI (Marshall), Plaintiff-Petitioner, and James Jerome Michalski, Defendant-Respondent.
    No. 37169.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 5, 1976.

      Gordon F. Webb, Clayton, for plaintiff-petitioner.
    Charles E. Roth, Clayton, for defendant-respondent.
   KELLY, Presiding Judge.

This appeal from an order of the Circuit Court of St. Louis County was entered on May 19, 1975 after a hearing on motions to modify the child custody provisions of a divorce decree filed by both the natural mother and father, plaintiff and defendant respectively in the original divorce suit. For reasons hereinafter stated we dismiss the appeal.

The divorce decree was entered in the Circuit Court of St. Louis County on February 25, 1972, and in addition to granting a divorce to the plaintiff, Reita Leone Michal-ski, awarded her custody of the three minor children of the marriage subject to certain specified rights of visitation and temporary custody awarded to the defendant, James Jerome Michalski. An order for the payment of support money for the minor children was also granted plaintiff and this amount was subsequently increased by an amendment to the judgment in the divorce case on December 5, 1973, from $30.00 per week per child to $35.00 per week per child and the defendant was further ordered to pay the cost of orthodontic treatment for one of the minor children.

Subsequent to the granting of the divorce decree, plaintiff married Alden Marshall on June 22, 1974. Defendant also remarried.

On December 9, 1974, plaintiff filed a motion for modification of the divorce decree as amended on the ground that her husband’s employment had been terminated and for him to continue in the employment of a subsidiary corporation of his employer he was being transferred to Pittsburgh, Pennsylvania, she prayed the trial court to grant her permission to remove her children from the state of Missouri.

Defendant responded by filing his own motion to modify on January 14,1975, praying that the trial court modify the divorce decree by ordering that the custody of the three minor children be transferred to him. The grounds for this motion were that the appellant was an unfit person to have custody of the children and the removal of the children from the state of Missouri as prayed in plaintiff’s motion to modify would not be in the best interests of the children. Defendant also filed an “answer” to plaintiff’s motion to modify which was essentially a general denial of the allegations contained therein.

A hearing on both of these motions was conducted on May 15, 1975, and on May 19, 1975, the trial court filed its “Findings of Fact, Conclusions of Law, Judgment and Decree” whereby it found that the oldest child had indicated his preference to live with his father and that the other two younger children expressed no preference as to which parent they desired to live with. The trial court further found as a fact that the parties entered into a mutual agreement at the time of the divorce that the children would not be taken out of the state of Missouri and the St. Louis Metropolitan area; that both parents were competent to take care of and maintain the children and that the request to remove the children from the continental limits of the United States would not be in the best interest of the children for the reason that the children would be deprived of the companionship and parental guidance of the natural father. The trial court further found that the new community where the children would be located if permitted to leave the continental limits of the United States did not have well established schools and that the rigors of the adverse climactic conditions would not be conducive to the welfare of the children. The court further found that both movants treated each other from the time of the divorce with mutual contempt, and that neither one of them communicated with the other and that this is detrimental to the best interest of the children and that certain behavior of the children were normal incidents in the course of growing children.

As Conclusions of Law the trial court further found that the contract entered into between the parties as a stipulation at the time of the divorce was a good and valid contract and binding on the parties, and, as a matter of law, that the best interests of the children would be served by them remaining in the St. Louis metropolitan area during the school year.

The “Judgment and Decree” reads as follows:

“The Court will order that in the event the Marshalls decide to accept the job in Canada for United States Steel, Canadian Subsidiary, they shall have the custody of the three minor children during the summer months of June, July and August. That the three minor children shall then be returned to the custody of the natural father, James Jerome Michalski, and he shall have the custody of the three minor children from September 1, 1975, to June 1, 1976. The Court will cancel any obligations on the part of the natural father to pay support to his former wife, Reita Leona Marshall, during the period of time that he has legal and physical custody from September to June. That the child support payments during the summer months of June, July and August will remain the same as they currently are. “That in the event the Marshalls do not decide to accept the employment opportunity offered in Canada, Reita Leona Marshall shall have the care and custody of the three minor children under the same conditions that have existed heretofore. In the event that the Marshalls accept some other job requiring them to leave the jurisdiction of the State of Missouri, the legal and physical custody and care of the oldest child, James Jeffrey Michalski, will be in the natural father, James Jerome Michalski. The Court reserves any ruling as to the two minor children, Felicia Louise and David Joseph, being removed from the jurisdiction of the State of Missouri upon the obtaining of a new job by Mr. Marshall outside the jurisdiction of the Court to determine whether it would be in the best interest of those two minor children to leave the jurisdiction of the State of Missouri. The Court will order that the children remain in the jurisdiction of the State of Missouri and this Court until the petitioners, Reita Leona Marshall and Alden Marshall, post a bond for $10,000.00 conditioned upon the return of all three children to the natural father in the event they agree to accept the employment offered by United States Steel, Canadian Subsidiary. If the minor children are removed from the jurisdiction to Canada the cost of the return flight in 1975 will be paid by the respondent, James Jerome Michalski, and he will be required to pay one half of the transportation costs for so long as the children are in Canada.” (Emphasis supplied).

Thereafter, on May 21, 1975, a memorandum was filed of record which reads:

“Plaintiff’s bond with surety filed and approved. Bond together with Certificate of Deposit ordered to be deposited in Court and held therein until further order. Petitioner and her present husband, ALDEN MARSHALL, granted leave to take the three children to Canada with them effective May 23, 1975, to permit children to be escorted during the first summer trip. Letter from St. Louis Teachers Credit Union filed.”

On May 30, 1975, appellant filed her notice of appeal “from the order entered in this action on the 19 (sic) day of May, 1975.” (Emphasis supplied).

Appellant’s notice of appeal is an attempt to perfect an appeal from the order of May 19,1975. We hold that the order is not an appealable one. The order is a declaration of the action which the trial court intended to take upon the occurrence of one of several contingencies transpiring in the future and of necessity would require a further order when the particular contingency transpired. The general principle is that a judgment must be sufficiently fixed and certain in its terms to be susceptible of enforcement in a manner provided by law and after thirty days becomes fixed and beyond the reach of the trial court to change, amend or modify. Cf. Thompson v. Hodge, 348 S.W.2d 11, 13 (Mo.App.1961); Taylor v. Taylor, 367 S.W.2d 58, 62 (Mo. App.1963). At most the order herein is an interlocutory one not subject to appeal. Thompson v. Hodge, supra, 348 S.W.2d at 13.

The resolution we make does not preclude the parties from pursuing further remedies. Further proceedings may well be more enlightening because of the passage of time and the experience of the parties during the past year.

Appeal dismissed.

SIMEONE and GUNN, JJ., concur.

      . Between the time of the filing of the plaintiff’s motion to modify and the date of the hearing it had been determined that the job offered to Mr. Marshall would be in Canada and not in Pittsburgh, Pennsylvania, as alleged in the motion.


author: DWYER, Judge.

text:
    Charles PENNINGTON, Jr., Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    May 21, 1976.
    Certiorari Denied by Supreme Court Aug. 23, 1976.
    Jay Fred Friedman, Memphis, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., Robert H. Roberts, Advocate Gen., Nashville, Arthur T. Bennett, Asst. Dist. Atty. Gen., Memphis, for defendant-in-error.
   OPINION

DWYER, Judge.

The state moves to affirm on the technical record the conviction in the trial court for the offense of rape with punishment of confinement for thirty years. The plaintiff-in-error in opposition urges the court that pursuant to the mandates of Dennis v. State, 137 Tenn. 543, 195 S.W. 162 (1917), that no one other than the trial judge who heard the trial can certify and authenticate a bill of exceptions.

The technical record reflects that the motion for new trial was overruled on July 18, 1975, with thirty days allowed for perfection of the appeal and that an additional sixty days was allowed plaintiff-in-error by the trial court on August 18, 1975.

The plaintiff-in-error in his answer to the state’s motion to affirm relates that the trial court resigned his office in the middle of August and consequently was unavailable for the authentication of the bill of exceptions. In an affidavit by counsel attached to his answer to the motion the following language may be found:

“I, Jay Fred Friedman, being one of the attorneys who represented the Defendant at trial hereby make oath in due form according to law, that the facts and statements contained herein are true and correct according to the best of my knowledge, information and belief.
“1. That the order overruling the Motion for New Trial and granting an appeal was filed, and mailed to counsel, just immediately prior to the resignation of the Honorable W. Otis Higgs, Jr., Judge of Division IV. of the Criminal Court of Shelby County, Tennessee from that office.
“2. That the resignation of Judge Higgs from the bench occurred around the first to the middle of August, 1975.
“3. That there was a vacancy in that Court for approximately thirty (30) days prior to the appointment of the Honorable H. T. Lockard to that same office formerly held by Judge Higgs.
“4. That according to counsel’s best understanding of the law that a trial transcript must be authenticated by the Judge who heard the Trial. That a Judge who has resigned is no longer a Judge, and could accordingly not certify a Bill of Exceptions, or perform any other judicial act. That pursuant to case law in this State the successor Judge would likewise be unable to certify a Bill of Exceptions since he did not hear the trial, and would be unable to comment on the accuracy of a Bill of Exceptions.
“FURTHER, AFFIANT SAYETH NOT.”

In the state’s reply brief the following language may be found:

“Apparently defense counsel has not bothered to check recent law on the subject. Section 27-110, Tennessee Code Annotated, now provides:
‘Certificate as leave to file bill — Authentication — Death or inability of judge or chancellor. — The certificate of approval of the parties or the certificate of the court stenographer upon said bill of exceptions or wayside bill of exceptions shall be sufficient leave to file same, when filed within thirty (30) days after the order or action which occasioned its filing, or an extension thereof.
‘The lodging of said bill of exceptions or wayside bill of exceptions with the clerk of the trial court within the time allowed, along with certification by the filing party showing notice of such filing to all other interested parties, shall complete the process of filing.
‘Any party not certifying approval of said bill of exceptions, or wayside bill of exceptions prior to filing may, within ten (10) days of such filing, file with the clerk of the trial court written objections detailing wherein such party questions the accuracy and/or authenticity of the bill of exceptions, and the trial judge shall make such changes in the bill of exceptions or wayside bill of exceptions, if any, as the truth requires.
‘The certificate of approval upon said bill of exceptions or wayside bill of exceptions by the trial judge or chancellor and the authentication of the exhibits by the trial judge or chancellor shall be affixed to the bill and the exhibits as soon as practicable after the filing thereof or after the expiration of the aforesaid ten (10) day period, as the case may be, and such action of the trial judge or chancellor shall comprise the requisite authentication.
‘In the event of the death or inability to act of the trial judge or chancellor, the succeeding or replacement judge or chancellor of the court in which the case was tried shall perform the duties of the trial judge or chancellor as set out in this chapter.’ ”

The state then concludes therefore there is no reason advanced why the bill of exceptions could not have been filed. With this we agree.

The minutes in the technical record disclose the Honorable H. T. Lockard presiding in Division IY of the Criminal Court of Shelby County on September 15, 1975, the first day of the September term of 1975. Under the above quoted provision, the plaintiff-in-error could have filed the bill of exceptions with the clerk within thirty days of the denial of his motion for new trial or within the extension time with the state having ten days to except. If the original trial judge was inaccessible, his successor could have authenticated the bill of exceptions.

Additionally, we think if the Honorable Otis Higgs was campaigning for the office of Mayor of the City of Memphis his whereabouts for the authentication of the bill of exceptions could have been ascertained within the time allowed, inasmuch as his authority to authenticate the bill extended sixty days beyond his resignation. T.C.A. 17-116.

We have examined the technical record. Finding no error therein we affirm the judgment of the trial court.

O’BRIEN and DAUGHTREY, JJ., concur.


text:
    Daniel GREY and Gregory Smith, Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Aug. 11, 1976.
    Certiorari Denied by Supreme Court Sept. 13, 1976.

      Jay Fred Friedman, Memphis, for plaintiffs-in-error.
    R. A. Ashley, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, Donald D. Strother and James W. Harrison, Asst. Dist. Attys. Gen., Memphis, for defendant-in-error.
   OPINION

DWYER, Judge.

The plaintiffs-in-error, Daniel Grey and Gregory Smith, were convicted at a trial on consolidated indictments for committing the following offenses: assault to commit murder in the first degree, with punishment of confinement for not less than six nor more than fifteen years, and three counts of robbery with a deadly weapon with punishment of confinement for sixty-five years on each count. The trial court ordered the sentences to run consecutively.

The evidence accredited by the verdict of the jury reflects that the Perel and Lo wen-stein’s Jewelry Store, located in the Poplar Plaza Shopping Center in the City of Memphis, was robbed at gunpoint by the resolute plaintiffs-in-error on the afternoon of July 6,- 1974. The plaintiffs-in-error entered that store at closing time and herded the employees into an engraving room and handcuffed them. They then ransacked the display cases and safe obtaining currency, watches and rings. When they fled, an immediate alarm was given to the police along with descriptions of the two black holdup men, which precipitated an unusual amount of response activity by the police. The plaintiffs-in-error while fleeing in a car, were observed by an officer cruising in the vicinity of the holdup. This officer followed the car and when it pulled into a parking lot the officer approached the car to investigate it. He saw the two plaintiffs-in-error alight armed with pistols and carrying a briefcase. They then commandeered a Thunderbird automobile at gunpoint from a citizen and fled in this stolen car after the plaintiff-in-error, Grey, fired a shot at the approaching officer, who returned the fire.

A short time later, in the general area where the Thunderbird was taken, these two plaintiffs-in-error entered a residence and at gunpoint and with threats obtained the keys to a car from the female occupant of that home and continued their escape in this second stolen car. A prompt call by this victim to the police intensified their search for these desperadoes.

An off-duty officer spotted Grey afoot in the general locale and, since he fit the description of one of the armed thieves, stopped and arrested the armed Grey at gunpoint.

Another officer in the vicinity, passing a grocery store looking for suspects fitting the descriptions, saw Smith coming out of the store. He noticed Smith, after seeing the police car, stop, his eyes get large and his furtive manner in reentering the store which prompted the officer to stop and investigate. As he entered the store, he saw Smith running inside and at gunpoint ordered Smith to halt. Smith, after being advised of his rights, stated that he had been the driver of one of the cars but did not shoot at the officer.

A quantity of the stolen merchandise was recovered from the Thunderbird.

At a lineup the next day both plaintiffs-in-error were identified by the store manager and another employee with two other employees identifying Smith. The owners of the automobiles identified both Grey and Smith at the lineup.

The first assignment of error attacks the arrest of both plaintiffs-in-error on the premise that probable cause was lacking. We disagree. When officers áre responding to a series of armed robberies and observe suspicious actions as outlined afore, coupled with descriptions and being in the vicinity, they have probable cause to arrest. The officers are not required to have absolute assurance but only probable cause to believe a person arrested committed the offense. It was not, as contended, a dragnet-type operation as condemned in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). The arrest complies with the definition of reasonable cause as found in Jones v. State, 161 Tenn. 370, 374, 33 S.W.2d 59 (1930). This assignment is overruled.

We find nothing improper or suggestive about the lineup procedure used in this case. The trial court conducted a full hearing out of the presence of the jury and found the lineup to be proper. There was evidence from a public defender that he was called to represent the plaintiffs-in-error and from his observations the lineup was fair. This pre-indictment lineup from our review of its totality was fair. Craig v. State, Tenn.Cr.App., 506 S.W.2d 949, 950 (1973). This assignment is overruled.

We find no error in the trial court’s denial of a mistrial when it appeared a wanted poster on the defendants in the files of the attorney general was in view of the jury. While we think the attorney general’s inadvertence is incompatible with his duties as outlined in Foute v. State, 4 Tenn. 98, 99 (1816), the prompt instructions of the court to the jury not to consider it cured any error. This assignment is overruled.

The trial court detailed his reasoning for ordering the sentences to be served consecutively, i. e., different crimes, at different times, accompanied by armed force and threats of serious bodily harm. We find no abuse of discretion here. This assignment has no merit and is overruled.

With no objection to the trial court charging on the parole law and no assignment made in the motion for new trial, we find no error here and this assignment is overruled.

We think the jury was justified in concluding that Grey pointing a pistol in the officer’s direction and firing a shot at the pursuing officer while in the act of fleeing from an armed robbery was sufficient evidence to sustain the assault to commit murder in the first degree conviction. His act was then the act of his cohort, Smith. Woodruff v. State, 164 Tenn. 530, 537, 51 S.W.2d 843 (1932). This assignment is overruled.

We think the trial court was eminently fair in the manner in which he presided over the proceedings. There is evidence that the court was aware of escape and other pre-trial in-custody antics of the plaintiffs-in-error. This would not be adequate grounds for the court to recuse itself nor is it sufficient evidence of non-impartiality. This assignment is overruled.

We find no merit in plaintiffs-in-error’s argument that these four offenses were only one criminal event and should therefore result in one punishment. The evidence is sufficient to sustain convictions of these multiple and separate crimes according to the law as interpreted by both the Supreme Court of Tennessee and the Supreme Court of the United States. State v. Black, Tenn., 524 S.W.2d 913, 918, 919 (1975); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). We overrule this assignment.

We find no error in the trial court’s consolidation of the four crimes in one trial. Hunter v. State, 222 Tenn. 672, 681, 682, 440 S.W.2d 1 (1969). Nor do we find error in his denial of Smith’s motion for a severance. Hunter v. State, supra. With the argument of Grey not in the record, there is no evidence to support Smith’s assertion he was prejudiced thereby. These assignments are overruled.

The judgments of the trial court are affirmed.

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


author: DANIEL, Justice.

text:
    In the Matter of O. P. CARRILLO, District Judge.
    No. B-5898.
    Supreme Court of Texas.
    July 14, 1976.

      John L. Hill, Atty. Gen., Max Flusche, Asst. Atty. Gen., Austin, for petitioner.
    Arthur Mitchell, Austin, for respondent.
   DANIEL, Justice.

This case results from a recommendation by the State Judicial Qualifications Commission that O. P. Carrillo be removed as Judge of the 229th Judicial District of Texas, which is comprised of Duval, Starr and Jim Hogg Counties. The proceeding is pursuant to Section 1 — a of Article V of the Texas Constitution, which reads in part as follows:

“(6) A. Any Justice or Judge may, subject to the other provisions hereof, be removed from office for willful or persistent conduct, which is clearly inconsistent with the proper performance of his said duties or casts public discredit upon the judiciary or administration of justice; or any person holding such office may be censured, in lieu of removal from office, under procedures provided for by the Legislature.”

This proceeding was initiated by the Judicial Qualifications Commission on May 2, 1975, in accordance with Section 1 — a of Article V and the Rules for Removal or Retirement of Judges promulgated by this Court. On August 4,1975, upon request of the Commission, this Court appointed Judge James R. Meyers, District Judge for the* 126th Judicial District, as Master to hear evidence on the charges and report thereon to the Commission. Between November 3 and December 30, 1975, the Master heard evidence on 29 days, resulting in a record of 4467 pages and hundreds of exhibits. On January 13, 1976, the Master filed with the Commission findings in which he concluded that a preponderance of the evidence showed Judge Carrillo to be guilty of eleven of the twelve charges of misconduct alleged in the Commission’s First Amended Notice of Formal Proceedings. With minor exceptions, the Judicial Qualifications Commission agreed with the fact findings of the Master. On March 24, 1976, the Commission filed its findings and conclusions with this Court recommending that Judge Carrillo be removed from office. On April 23, 1976, Judge Carrillo filed his Petition to Reject the Recommendation of the Commission.

Among several unusual circumstances present in this case is the fact that practically all of the acts of misconduct found by the Master and the Judicial Qualifications Commission occurred before Judge Carrillo was re-elected as District Judge on November 5, 1974; none of such misconduct related to the discharge of his duties as District Judge; and there was a concurrent impeachment proceeding in which a judgment was voted by the Senate of Texas on January 23, 1976, removing Judge Carrillo from office.

Judge Carrillo asserts that this case is moot because of the impeachment, and that in no event should he be removed by this proceeding because the alleged misconduct occurred before he was last elected to the office of District Judge and because none of the alleged misconduct involved performance of his duties as District Judge. We disagree. After reviewing the record of the facts and the law, we agree with the conclusion of the Judicial Qualifications Commission that Judge Carrillo performed willful acts of conduct which cast public discredit upon the judiciary of the State and that he should be removed from office by this Court, without prejudice to the validity of any earlier removal by the Senate.

Concurrent Impeachment Proceeding

Ten Articles of Impeachment were voted by the House of Representatives against Judge Carrillo on August 5, 1975, and the Senate of Texas was convened as a Court of Impeachment on September 3,1975. After hearings on several days, the Senate postponed its trial until the Master had completed his report for the Judicial Qualifications Commission. On January 7, 1976, the Senate voted to incorporate as a part of its record a transcript of the 29 volumes of the Master’s record and exhibits. This use of the evidence adduced by the Master was after agreement and stipulation between counsel for the House Managers who were conducting the prosecution and counsel for Judge Carrillo.

On January 23, 1976, the Senate voted impeachment of Judge Carrillo on Article VII by the required two-thirds vote of the Senators present. He was acquitted on Article I by reason of a vote of less than two-thirds of the members present. The remaining eight Articles were dismissed without a decision as to their merits. The Senate’s final judgment of January 23, 1976, adopted by a vote of 26 to 1, declared “that O. P. Carrillo ... be and hereby is removed from office and is disqualified from holding any office of honor, trust, or profit under this State.”

The Impeachment Has Not Rendered This Proceeding Moot

On April 12, 1976, Judge Carrillo filed in this Court a motion to dismiss this proceeding on the grounds that it had been rendered moot by his impeachment. We overruled that motion on May 12, 1976, upon a showing by the Attorney General that the validity of the impeachment proceedings had been denied by Judge Carrillo in cause No. 9318, styled O. P. Carrillo, Judge, 229th District Court v. Bob Bullock, Comptroller, State of Texas, et al., filed in the District Court of Duval County on February 2,1976. In that case Judge Carrillo alleges that he is still the duly constituted District Judge and entitled to receive payment of the salary. That case has been removed to the 53rd District Court of Travis County, where it is now pending. In a 22 page supplemental petition Judge Carrillo contends that he is entitled to all emoluments of the office of District Judge of the 229th Judicial District because the impeachment proceedings were void and of no force or effect. Among other things, he contends that he was deprived of constitutional rights of due process during the House Committee hearings; that the House had no authority to call itself into session for the purpose of voting Articles of Impeachment against him; and that without valid Articles of Impeachment the Senate had no power to convict and remove him from office.

Without regard to the merits of the above mentioned lawsuit, it stands as an attack upon the validity of the impeachment and removal adjudged by the Texas Senate. As long as it is pending, the proceeding before this Court is not moot. Furthermore, neither impeachment nor this proceeding are exclusive methods for the removal of district judges. The Constitution of Texas provides four methods. One is by impeachment as provided in Sections 1-5 of Article XV. A second is by the Supreme Court, upon presentment of verified charges by at least ten lawyers practicing in the affected court, as provided in Section 6 of Article XV. A third is by the Governor on address of two-thirds of each House of the Legislature as provided in Section 8 of Article XV. The other is a proceeding of this nature in which the Supreme Court acts after an investigation and recommendation of the Judicial Qualifications Commission as provided in Section 1-a of Article V. Neither is an exclusive remedy. As in Judge Carillo’s case, more than one method may be pursued concurrently.

Due Process

In all of the methods provided for removal of a judge, the judge is entitled to a full and fair trial on the charges preferred against him. In re Brown, 512 S.W.2d 317 (Tex.1974); In re Laughlin, 153 Tex. 183, 265 S.W.2d 805 (1954); Ferguson v. Maddox, 114 Tex. 85, 263 S.W. 888 (1924); Gordon v. State, 43 Tex. 330 (1875).

Judge Carrillo complains that he was denied due process in this proceeding because the Notice of Preliminary Investigation dated May 2, 1975, related only to alleged misconduct in receiving gifts and engaging in certain business transactions with a party to a lawsuit pending in his court; that he had no similar notice in accordance with Rule 3(b) when five additional charges were preferred against him in the Notice of Formal Proceedings served upon him on July 18, 1975, or when six additional charges were included in the Commission’s First Amended Notice of Formal Proceedings dated October 8, 1975. He complains further that the total of eleven additional charges of misconduct were not properly a part of the proceeding commenced by the May 2nd notice; that the Commission failed to specify in ordinary and concise language the additional charges against him; and that it failed to follow other procedures specified by the Rules of this Court for Removal or Retirement of Judges.

We find no merit in these procedural complaints. Our Rule 3(b) provides for the Commission to give a notice of preliminary investigation before finally determining that formal proceedings shall be instituted. The purpose is to give the judge an opportunity to reply to the charges then before the Commission before it acts with respect to formal proceedings. Judge Carrillo filed his reply on May 13, 1975. This did not mean that the Commission was prevented from preferring additional charges in its subsequent Notice of Formal Hearings and its First Amended Notice of Formal Hearings, or that it should start all over by incorporating all charges in a new Notice of Preliminary Investigation. It is clear from our Rule 4 that it was the Notice of Formal Proceedings which officially and formally commenced this proceeding. Nothing in our Rules nor the concept of due process requires that the pleadings instituting formal proceedings, or amendments thereto, need be limited to matters contained in the verified statement initially incorporated by the Commission in its Notice of Preliminary Investigation, so long as due notice is given concerning the additional charges. Rule 11 specifically provides that a Master, or the Commission, at any time prior to reaching a decision, “may allow or require amendments to the notice of formal proceedings . .” Rule 11 continues: “The notice may be amended to conform to proof or to set forth additional facts, whether occurring before or after the commencement of the hearing.” Judge Carrillo was given every notice required by the Rules. He had ample opportunity to reply and did reply to the sum total of the twelve charges that were made against him in the First Amended Notice of Formal Hearing filed with the Master on October 8, 1975.

We find no merit in Judge Carrillo’s remaining complaints about the wording of the charges and procedures followed by the Commission and the Master. The alleged acts of misconduct were stated with sufficient clarity to enable him to know and defend against the charges preferred. He was afforded an adequate pretrial hearing on October 25, and a postponement of the hearing on the merits until November 3, 1975, in order that he might prepare his defense. We find no lack of notice or due process in the proceedings before the Commission or the Master.

Findings of the Master and the Commission

As heretofore indicated, after 29 days of hearings which elicited 4467 pages of evidence and hundreds of documentary exhibits, the Master filed his findings with the Commission on January 13,1976. Since the Commission substantially agreed with the Master’s findings of misconduct, we shall summarize the findings from the Master’s Report, with notations of any differences in our own findings:

I. That Judge Carrillo conspired with Ramiro Carrillo, his brother and county commissioner, to obtain goods and merchandise from the Cash Store in an amount of $300.00 per month from at least July 1972 through December 1974. By a preponderance of the evidence it was shown that this resulted from a scheme by which a monthly payment of $700 to $800 of Duval County welfare funds was made to the Cash Store for fictitious welfare recipients, with no more than $100.00 per month being given out in welfare groceries. A monthly sum of $300.00 from each monthly Duval County Welfare payment was applied to Judge Carrillo’s account for a total during the period of approximately $9000.00.
II. That Judge Carrillo was deeply involved in transactions concerning property in litigation in his court and with one of the litigants, being charged, however, only with failure to voluntarily recuse or disqualify himself from the case. The Master found that Judge Carrillo signed only agreed orders prior to a hearing by another judge which resulted in a judgment of disqualification. The Judicial Qualifications Commission made no finding upon this charge. We find that the preponderance of the evidence shows that Judge Carrillo was so involved with the litigant and the property in litigation that he should have recused himself voluntarily. Except for the stronger action of removal on other charges, we would censure Judge Carrillo for failing to re-cuse himself in the case.
III. That Roberto Elizondo was unlawfully paid $225.00 per month from the Duval County Road and Bridge Fund while he attended Court Reporting School from January 1, 1972 through September of 1973, with the knowledge and assistance of Judge Carrillo. Neither the Master, nor the Commission, nor do we find from a preponderance of the evidence that these payments were the result of a conspiracy between Judge Carrillo and his brother, Ramiro Carrillo, to steal such sums from Duval County as charged in the First Amended Notice of Formal Proceedings.
IV, V AND V-A. That Judge Carrillo periodically used the services of employees and equipment of Duval County on his own ranch or in furtherance of his own personal business interests.
VI. That in November, 1973 Judge Carrillo used equipment of the Duval County Conservation and Reclamation District to construct the foundation of a building owned by him.
VII-X. Separate amounts in the sum of $1008.00, $1018.00, $1006.00 and $995.00, respectively, were appropriated by Judge Carrillo for his own use and benefit from Duval County with the intent permanently to deprive the county of such money. The findings on these charges were well documented and showed a scheme by which false bills or invoices were prepared showing that Farm and Ranch Supply sold goods and leased equipment to Benavides Implement and Hardware Company, which in turn billed Duval County for the goods, merchandise, services or equipment which, in fact, had not been provided. Duval County would then send checks to Benavides Implement and Hardware which, in turn, paid them over to various people and entities, including Judge Carrillo.
XI. That Judge Carrillo wrongfully obtained the sum of $5625.00 from the Duval County Conservation and Reclamation District with the intent to permanently deprive the district of such money. The evidence here included a check from Benavides Implement and Hardware to Judge Carrillo, the source of which was traced to the district.
XII. That Judge Carrillo, from December 14, 1972 until May 1974, unlawfully used Duval County funds in excess of $8000.00 with the intent permanently to deprive Duval County of said money. This was accomplished by Judge Carrillo’s purchase of two bulldozers for his own use through a lease-purchase agreement in the name of Benavides Implement and Hardware. The equipment was financed through payment of Duval County funds to Benavides Implement and Hardware on fictitious invoices, and in turn Bena-vides made payments for Judge Carrillo’s account on the sum owed by him to Plains Machinery Company, at least to the extent of $8000.00.

This is not a criminal proceeding, since its function is not to punish but to maintain the high quality and integrity of the judiciary. Consequently the findings of the Master, the Commission, and of this Court need be established only by a preponderance of the evidence. In re Brown, 512 S.W.2d 317 (Tex.1974). Except as indicated above, we agree that a preponderance of the evidence established the acts of misconduct as found by the Master and the Judicial Qualifications Commission. We further find that the misconduct set forth in charges I and III through XII constitute willful conduct which cast public discredit upon the judiciary.

Effect of Election Subsequent to Acts of Misconduct

As heretofore indicated, substantially all of the misconduct set forth above occurred prior to November 5, 1974, when Judge Carrillo was re-elected to the office of district judge. He insists that Article 5986, V.A.C.S. is applicable. It reads:

“No officer in this State shall be removed from office for any act he may have committed prior to his election to office.”

We have heretofore held that the above statute does not apply to the office of district judge. In re Brown and In re Laughlin, supra. Section 7 of Article XV of the Texas Constitution authorizes the Legislature to provide for the removal of officers for whom the methods of removal are not provided in the Constitution. This proceeding for removal is authorized by the Constitution, and for that reason Article 5986 is not applicable. The spirit of that Article, however, was applied by this Court in a proceeding to remove a district judge pursuant to Section 6 of Article XV in the case of In re Laughlin, 158 Tex. 183, 265 S.W.2d 805, 808 (1954). The rule was there stated:

“Neither may removal [of judges] be predicated upon acts antedating election, not in themselves disqualifying under the Constitution and laws of this State, when such acts were a matter of public record or otherwise known to the electors and were sanctioned and approved or forgiven by them at the election. This holding is in harmony with the public policy declared by the Legislature with respect to other public officials. Article 5986, R.C. S.”

In Brown, supra, we recognized that the sound rationale for this doctrine is that the public, as the ultimate judge and jury in a democratic society, can choose to forgive the misconduct of an elected official if the public knows about such misconduct prior to the election. If, on the other hand, the misconduct is unknown to the public prior to the election and is of such willful nature as to cast public discredit upon the judiciary, it cannot be said that the judge was forgiven by his election or re-election. In the present case there is no evidence whatever that the misconduct of Judge Carrillo was known to the public prior to his election on November 5,1974. Until these proceedings and the impeachment proceedings were commenced, the record shows that the acts of misconduct were concealed from the public. They were not matters of public record, and it cannot be said that they were acts which were forgiven by the electorate when they voted for Judge Carrillo on November 5, 1974.

We hold that the willful and persistent acts of misconduct committed by Judge Carrillo prior to his last election were such as to cast just as much public discredit upon the judiciary as if they had been committed after the election; and they were not in any manner absolved by his election.

Misconduct May Consist of Non-Judicial Acts

As heretofore stated, none of the misconduct found by the Commission and this Court involved acts of Judge Carrillo in his judicial capacity. In fact, both the Master and the Commission found as follows:

“Judge O. P. Carrillo is industrious in carrying out the responsibilities of his office. He is courteous to litigants, lawyers, witnesses and court personnel. He maintains proper decorum in the courtroom and he maintains a judicious demeanor. He is apparently fair to litigants in his decisions.”

While most removal eases do relate to judicial rather than personal misconduct, there have been at least two proceedings in other states which involved acts of personal non-judicial misconduct. In Geiler v. Commission on Judicial Qualifications, 10 Cal.3d 270, 110 Cal.Rptr. 201, 515 P.2d 1 (1973), much of the conduct of the judge under scrutiny related to vulgar and indecent language on his part, which took place at a time when he was not engaged in presiding over his court. The California Supreme Court described “prejudicial conduct” as including “willful misconduct out of office, i. e. unjudicial conduct committed in bad faith by a judge not then acting in a judicial capacity.”

The Supreme Court of Louisiana concluded that charges relating to personal non-judicial conduct warranted removal of a judge under provisions of the Louisiana Constitution. In re Haggerty, 257 La. 1, 241 So.2d 469 (1970). Although all of the alleged misconduct occurred in a private capacity, the Louisiana Supreme Court said that the public has a “deep and vital interest” in the “office of Judge.” * * * “The official conduct of judges, as well as their private conduct, is closely observed, when a judge, either in his official capacity or as a private citizen, is guilty of such conduct as to cause others to question his character and morals, the people not only lose respect for him as a man but lose respect for the court over which he presides as well.” 241 So.2d 469-478. With this we agree. It is entirely possible for the personal conduct of a judge while he is off the bench to be so willful, intemperate, or dishonest as to cause public disrespect for the office and the judiciary in general. It is wise that Section 1 — a of Article V holds a judge accountable for both his private and his judicial conduct whenever either are so willful or persistent as to cast public discredit upon the judiciary or the administration of justice.

We hold that non-judicial acts, including misconduct committed but unknown to the public before a judge is elected to office, may be willful or persistent so as to cast public discredit upon the judiciary or administration of justice and serve as grounds for removal under this type of proceeding. The conduct constituting grounds for removal under Section 1-a of Article V is not limited to judicial acts or acts performed during the term of office for which the judge is elected.

Custom In Duval County Is Irrelevant

Judge Carrillo complains that the Commission’s rejection of the Master’s specific findings as to customary use of Duval County employees and equipment by prominent ranchers was unsupported by the evidence. In this connection Judge Carrillo apparently deems the findings of the Master as exculpatory and therefore relevant to a judgment concerning his own misconduct. After his findings under charge IV that Judge Carrillo had wrongfully used a county employee and county equipment on his own ranch, the Master continued:

“I further find that it was common and accepted practice for politically influential ranch owners in Duval County to use county employees and county equipment to work on their ranches.”

Similar findings were made with respect to Judge Carrillo’s misconduct under charges V, V-A, and VI as being in accordance with custom and common practice in Duval County. The record supports these findings, but they are relevant only to the extent of showing that disrespect for the law in Duval County has been condoned rather than condemned by Judge Carrillo. The laws of Texas forbidding persons from using county employees and equipment for their own private benefit are applicable to Duval County whether or not they are applied or enforced by local officials. The unlawful conduct of Judge Carrillo was not excused because other citizens of Duval County may have engaged in the same practice.

Conclusion

We have carefully examined all other complaints lodged by Judge Carrillo against this proceeding and in favor of his Petition to Reject the Recommendation of the Judicial Qualifications Commission. We find no merit in his contentions and therefore deny his Petition to Reject. For the reasons stated above, we approve and concur in the Recommendation of the Judicial Qualifications Commission that O. P. Carrillo should be removed from office.

Accordingly, it is ordered that 0. P. Carrillo be, and he is hereby removed from the office of District Judge of the 229th Judicial District, this order to be effective at 11:00 a. m., July 14, 1976. In accordance with Rule 24 applicable to these proceedings, no motion for rehearing will be entertained.

The judgment herein is without prejudice to any valid earlier date of removal which may have been accomplished by the judgment' of impeachment voted against O. P. Carrillo by the Senate of Texas on January 23, 1976.

GREENHILL, C. J., concurs in the result.

      . All references to Rules, unless otherwise specified, are to the Rules for Removal or Retirement of Judges, adopted by the Supreme Court of Texas in 1966, as amended on July 20, 1971, as required by Section (11) of the above mentioned Section 1-a of Article V of the Texas Constitution. See also Article 5966a, V.A. C.S.

      . Senate Journal, 4th Leg., Impeachment Session, Sept. 3, 1975, 1, 6.

      . Id., Jan. 7, 1976, 772-773.

      . The Attorney General served both as Examiner for the Judicial Qualifications Commission in the hearings before the Master and as Special Prosecutor for the House Board of Managers in the trial before the Senate.

      . Article I charged: “While holding office as district judge . . . O. P. Carrillo conspired with others to have Duval County pay for groceries, to which he was not entitled, for his personal use and benefit.” The vote on sustaining that Article was 16 “ayes” and 12 “nays,” resulting in a judgment of acquittal thereon. Article VII which was sustained by a vote of 23 “ayes” to 5 “nays,” charged: “While holding office as district judge . . . O. P. Carrillo conspired with others to charge and collect money from governmental entities for rentals of equipment that did not exist and for rental of equipment that the governmental entities did not use.” Record of Proceedings, of the High Court of Impeachment, Twenty-third Day, Jan. 23, 1976, 3602, 3614-3615.


author: STEAKLEY, Justice.

text:
    Truman O’NEIL, Individually and d/b/a Mesa Mack Sales, Petitioners, v. MACK TRUCKS, INC., and Mack Financial Corporation, Respondents.
    No. B-5869.
    Supreme Court of Texas.
    Sept. 29, 1976.
    Rehearing Denied Nov. 10, 1976.

      Clark, Thomas, Winters & Shapiro, Barry Bishop and Donald S. Thomas, Jr., Austin, W. Dean Hester, El Paso, for petitioners.
    Stubbeman, McRae, Sealy, Laughlin & Browder, Harrell Peldt and David K. Brooks, Midland, for respondents.
   STEAKLEY, Justice.

We granted writ of error in this ease to settle the question of whether the Court of Civil Appeals may consider an appellant’s argument that his contention has been established conclusively and as a matter of law when the point of error presenting an issue upon which the appellant had the burden of proof is phrased in terms of there being no evidence to support a contrary finding by the trial court. The Court of Civil Appeals here held that it may not. 533 S.W.2d 832. See to the same effect the writing in Prunty v. Post Oak Bank, 493 S.W.2d 645 (Tex.Civ.App.1973, writ ref’d n.r.e.). We hold otherwise under the rule stated in Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943), and disapprove the writing in Prunty.

Mack Trucks, Inc. and Mack Financial Corporation, Respondents here, sued Truman O’Neil, Petitioner, on various debts. Mack sought foreclosure of an alleged deed of trust lien against a 4.09 acre tract of land which O’Neil alleged was at all relevant times his business homestead. Trial was to the court and judgment was rendered in favor of Mack Trucks and Mack Financial on all issues. Among other things, the judgment awarded foreclosure of a lien on the 4.09 acre tract of land claimed by O’Neil as his business homestead. On appeal the Court of Civil Appeals severed the homestead issue and remanded this severed cause to the trial court. The severance and remand was occasioned by the ruling that the implied negative finding of the trial court on the homestead issue was contrary to the great weight and preponderance of the evidence. The trial court judgment was otherwise affirmed.

The severed cause involving the homestead issue is the only matter brought forward by O’Neil in his application for writ of error. As to this, the Court of Civil Appeals ruled that it was without jurisdiction to entertain O’Neil’s point of error reading as follows: “There is no evidence to support the trial court’s implied finding that the 4.09 acre tract of land was not appellant’s business homestead.” The Court remarked that this was an issue upon which O’Neil had the burden of proof and ruled that a “no evidence” point so phrased did not invoke appellate review, citing Prunty, supra. This Court has, however, adopted a liberal rule with reference to the construction of points contained in appellants’ briefs and applications for writ of error and will pass on the merits of a point of error in the light of the statement and argument thereunder. See Fambrough v. Wagley, supra, where we said:

“The object of a ‘point’ in the brief, as provided for in Rule 418, is to call the Court’s attention to the question raised and discussed in the brief. . . . If a ‘point’ is sufficient to direct the Court’s attention to the matter complained of, the Court will look to the ‘point’ and the statement and argument thereunder to determine the question of reversible error.”

See also Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99 (1961). Here, O’Neil argued in support of his point as above stated that the record established the homestead character of the property as a matter of law; and that the evidence concerning the homestead character of the tract in question was basically undisputed.

We hold that O’Neil’s point and argument in the Court of Civil Appeals sufficiently invoked appellate jurisdiction. We will, however, rule on the point and not remand the cause to the Court of Civil Appeals for such purpose. In so doing, we reverse the judgments below in the severed cause involving the homestead issue and render judgment for O’Neil.

Art. 16, § 51 of the Texas Constitution as it read in 1965 provided:

“ . . . the homestead in a city, town or village, shall consist of a lot, or lots, not to exceed in value five thousand dollars, at the time of their designation as the homestead, without reference to the value of any improvements thereon; provided, that the same shall be used for the purposes of a home, or as a place to exercise the calling or business of the head of a family; * * *”

It is well established that the homestead right, when fixed, is an estate in land exempt from execution and not subject to mortgage by the owner; that the quantity and value are limitations upon the homestead when established but form no part of the definition of a homestead; that a business and residence may be on separate lots but are taken together and constitute only one homestead; that if the value exceeds the limitation, the homestead is not destroyed or rendered any less so; and that where a homestead right is asserted and established, a creditor of the homestead debtor seeking to subject any excess value to the payment of his debt must allege and prove such excess value and seek a corresponding partition of the property. Miller v. Menke’s Widow & Heirs, 56 Tex. 539 (1881); Hargadine v. Whitfield, 71 Tex. 482, 9 S.W. 475 (1888); Rock Island Plow Co. v. Alten, 102 Tex. 366, 116 S.W. 1144 (1909); Chalk v. Daggett, 251 S.W. 228 (Comm.App. 1924); Cooper Co. v. Werner, 111 S.W.2d 823 (Tex.Civ.App.1937, no writ).

Here Mack sought foreclosure of an alleged deed of trust lien covering the 4.09 acre tract. O’Neil pleaded in defense that the tract was at all relevant times his business homestead and that therefore Mack was not entitled to foreclosure and sale of the 4.09 acre tract. There was no pleading by Mack asserting excess value or seeking to subject the excess in O’Neil’s homestead to payment of his debts or to the voluntary lien. See Clement v. First National Bank of Paris, Texas, 115 Tex. 342, 282 S.W. 558 (1926). The judgment of the trial court authorized foreclosure against the entire tract, and no finding may be deemed with respect to excess value.

In support of the contention that his homestead defense was established as a matter of law, O’Neil points to his testimony that he has been married since 1939 and that since 1965 he has operated his only business on the 4.09 acre tract in question. His testimony in this regard was clear, direct and positive, and there are no circumstances in evidence tending to discredit or impeach his testimony. Gevinson v. Manhattan Construction Co. of Oklahoma, 449 S.W.2d 458 (Tex.1969); McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722 (1943). Mack contends there was evidence in the record that cast doubt upon the testimony of O’Neil and raised a fact issue; but the testimony of O’Neil and the evidence Mack points to related primarily to the issues of quantity and value, issues not formed by the pleadings of Mack. Illustrative of this evidence is O’Neil’s testimony regarding his 1968 designation of his residence as a homestead and his testimony with respect to the value of both the 4.09 acre tract and the residence tract. The general testimony elicited from O’Neil that he engaged in other activities in the nature of farming and real estate investments does not contradict or discredit his otherwise unimpeached testimony that his operation on the 4.09 acre tract constituted his principal business. See Pfeiffer v. McNatt, 74 Tex. 640,12 S.W. 821 (1889); Thomas v. Creager, 107 S.W.2d 705 (Tex.Civ.App.—Eastland 1937, writ dism’d). See also McSwain, The Texas Business Homestead, 15 Baylor L.Rev. 39 (1963).

Mack also contends that the remand ordered by the Court of Civil Appeals was proper in the interest of justice and argues in support of this contention that the evidence strongly suggested the total value of the alleged homestead, if the 4.09 acre tract is included, exceeded $5,000. Yet Mack also argues that the case was tried on the wrong theory “because plaintiffs (Mack) tried the case consistently on the theory that the tract was not homestead at all.” Finally, Mack argues that the issue of excess value was tried by consent. We reject all of these contentions. For reasons no doubt considered advantageous, the pleadings of Mack drew only the issue that the 4.09 acre tract was not the homestead of O’Neil, and there was no attempt by Mack to assume the burden of alleging and proving excess value or of obtaining judgment subjecting the excess to payment of O’Neil’s debts.

The judgments of the Court of Civil Appeals and of the trial court are reversed, and judgment is rendered for O’Neil

      . Q All right. Now when did you actually— when did you purchase this 4.09 acres?
      A In 1964.

      Q All right. . . . Now when did your— this 4.— when did you operate, first become operational, on this 4.09 acres?
      A May 1st, 1965.
      Q Okay. Did you, at or about that time, close your location in Lamesa?
      A I did, simultaneously.
      Q All right. From the time you opened in Midland, in 1965, did you operate your business out of any other location?
      A No.
      Q And have you operated continuously at this 4.09-acre site since May 1, 1965?
      A Yes.

      Q Have you operated any other businesses of any type since 19 — May 1st, 1965?
      A No.

      Q Has the operation of Mesa Mack at this 4.09-acre tract been your sole occupation and business since 1965?
      A Yes.
      Q Is Mesa Mack á sole proprietorship?
      A Yes.
      Q Was Mesa Mack a sole proprietorship in 1965?
      A Yes.
      Q Has it been a sole proprietorship at all times since 1965?
      A Yes.
      On cross-examination, Petitioner further testified:
      Q Okay. Mr. O’Neil, what do you consider to be your present occupation?
      A A Mack truck dealer.
      Q Okay. Do you also make real estate investments?
      A Yes.
      Q And included in your real estate investments, do you have any farms?
      A Yes.
      Q All right. Do you consider yourself a full-time Mack truck man?
      A Yes.
      Q Do you consider that you have any other occupation?
      A No, sir.
      Q Do you consider yourself to be a farmer by profession?
      A No, sir.


text:
    The DICK MATZ AGENCY, Petitioner, v. Gertrude Wolf STOREY et al., Respondents.
    No. B-6158.
    Supreme Court of Texas.
    Oct. 6, 1976.
    Stayton, Maloney, Hearne & Babb, Douglass D. Hearne, Austin, for petitioner.
    Clark, Thomas, Winters & Shapiro, Barry Bishop, Austin, for respondents.
   PER CURIAM.

The Dick Matz Agency served as the real estate agent in making the sale of lands owned by Gertrude Wolf Storey and Marguerite Wolf Lee, and a dispute arose concerning the amount of the commissions owing the Agency. The Agency filed this suit for a declaratory judgment construing the contracts between the parties. The judgment of the court of civil appeals denies the contentions by Dick Matz Agency for the reasons expressed in the opinion of that court, 537 S.W.2d 507.

The judgment of the court of civil appeals that the Dick Matz Agency take nothing by this declaratory judgment should not be construed to mean that the Dick Matz Agency is not entitled to any commission. It means only that the declaration sought by the Dick Matz Agency was denied. The application for writ of error is denied with the notation, “Refused. No Reversible Error.”


author: ONION, Presiding Judge.

text:
    Ex parte Carlinuse DAVIS.
    No. 51296.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1976.
    Ray J. McQuary, Rosharon, for appellant.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.

      . The trial court records refer to the petitioner’s first name as “Carlinuse,” whereas in other parts of the record it is spelled “Carlenuse.”

   OPINION

ONION, Presiding Judge.

This is a habeas corpus proceeding brought under the provisions of Article 11.-07, Vernon’s Ann.C.C.P., wherein the convicting court denied relief.

The question presented appears to be one of first impression. May a judgment granting probation be made cumulative of two concurrent prison sentences so that the term of probation would not commence until the prison terms assessed have been discharged where the cumulation order is found only in the separate order granting probation?

The trial court’s findings reflect that on February 2, 1973, the petitioner waived the requirement of an indictment in three cases and entered guilty pleas before the court to three felony informations charging him with burglary with intent to commit theft. The court assessed punishment in two cases at confinement for ten (10) years in the Department of Corrections to run concurrently. In the third case, the court assessed the punishment at five (5) years in the Department of Corrections, but suspended the imposition of the sentence and placed the petitioner on probation subject to certain probationary conditions.

It is appellant’s position that the trial court was without authority to cumulate the judgment granting probation as it did and thus delay the commencement of probation. He argues that the judgment of probation should run concurrently with the other two sentences or otherwise the term of probation will extend beyond the ten year limitation imposed by the Adult Probation Law (Article 42.12, Vernon’s Ann.C.C. P.).

In addition to Article 42.12, supra, consideration must be given to Article 42.08, Vernon’s Ann.C.C.P. (Cumulative or Concurrent Sentence), which reads:

. “When the same defendant has been convicted in two or more cases, and the punishment assessed in each case is confinement in an institution operated by the Department of Corrections or the jail for a term of imprisonment, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction, except that in the discretion of the court, the judgment in the second and subsequent convictions may either be that the punishment shall begin when the judgment and sentence in the preceding conviction has ceased to operate, or that the punishment shall run concurrently with the other case or cases, and sentence and execution shall be accordingly.”

This statute has long been a part of our various Codes of Criminal Procedure and has been brought forward almost unchanged in language.

Appellant argues that Article 42.08, supra, providing for the cumulation of punishment, is not applicable since it applies only in cases where the punishment assessed is confinement in an institution operated by the Department of Corrections or in a jail, and thus it is not applicable to cases where probation has been granted. We cannot agree. Although probation was granted in the burglary case in question, the judgment entered actually assessed the punishment at confinement in the Department of Corrections.

If it can be argued that Article 42.08, supra, is not applicable because no sentence was entered, we note the very wording of the statute speaks of cumulation order being in “the judgment in the second and subsequent convictions . . . ." In fit parte Crawford, 36 Tex.Cr.R. 180, 36 S.W. 92 (1896), this court held that where the cumulation order was attached to and made a part of the sentence rather than the judgment proper the cumulation order was not void; that the sentence is in fact the final judgment in the case; and that while a cumulative punishment order could be placed in both the judgment and sentence, there is no necessity why this should be so, and a cumulation order in the sentence is proper. While the latter practice has been consistently followed and cumulation orders are normally found in the body of the formal sentence, we are not here presented with a question of whether a cumulation order is effective if found only in a judgment granting probation, but whether the cumulation order is effective where found only in the separate and distinct order granting probation.

In iight of the provisions of Article 42.08, supra, we hold that a cumulation order found only in the separate order granting probation is not effective. Thus, we need not reach the far more complicated question of whether a trial court can cumulate a judgment, granting probation with prior sentences under our procedure where a proper cumulation order is found in the judgment, there being no sentence in probation cases because the imposition of the sentence is suspended. See Article 42.-12, Vernon’s Ann.C.C.P; Anderson v. State, 421 S.W.2d 667 (Tex.Cr.App.1967). Likewise, we need not determine whether there are sufficient recitals in the cumulation order to render it valid.

Since the cumulation order is not effective, the term of probation began to run on March 21, 1973, and to run concurrently with the outstanding sentences.

The relief prayed for is granted.

ROBERTS, J., concurs in the result.

      . While the trial court’s findings reflect that all three guilty pleas were entered on February 2, 1973, the judgment in the third case in which probation was granted reflects it was heard on March 21, 1973, the same date the sentences were imposed in the first two cases. Needless to say, the record is not developed as well as it might have been.