author: ODOM, Judge. MORRISON, Judge

text:
    Virgil GARCIA, Appellant, v. The STATE of Texas, Appellee.
    No. 49950.
    Court of Criminal Appeals of Texas.
    Oct. 22, 1975.
    Tom Fleming, Brownsville, for appellant.
    Fred Galindo, Dist. Atty., James R. Oda-bashian, Asst. Dist. Atty., Brownsville, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted of unlawfully carrying a weapon. V.T.C.A. Penal Code, Sec. 46.02. Punishment, enhanced under Sec. 46.02(c), supra, for commission of the offense on premises licensed to sell alcoholic beverages, was assessed by the court at three years.

Appellant, when arrested in Polly’s Restaurant, premises licensed to sell alcoholic beverages, was carrying two handguns.

Appellant complains of the exclusion of evidence which would show he had been working with law enforcement officers in the investigation of a murder conspiracy case and that because of threats on his life and attempts on the lives of other witnesses in the case, he had been told by law enforcement officers involved in the ease to arm himself. He sought to prove these facts by testimony of various officers of the “DEA,” metro squad and sheriff’s office. The court directed appellant’s counsel to dictate a statement of what the testimony would be and declined to allow the witnesses to testify. Appellant objected to the exclusion of the evidence, and stated that its exclusion would deny him an entrapment defense.

On appeal appellant complains of the exclusion of the evidence and argues that had it been admitted he would have been entitled to a charge on entrapment. V.T.C.A. Penal Code, Section 8.06, provides:

“(a) It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
“(b) In this section ‘law enforcement agent’ includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents.”

The offense charged was the intentional and knowing carrying on or about his person a handgun. The excluded testimony was that he did so upon police instructions to protect himself from threats made against him because of his role in a pending murder conspiracy case. We are unable to say that such facts, if true, would not amount to an inducement by a law enforcement agent to carry on or about his person a handgun, by means likely to cause persons to do so. If the State had evidence to the contrary, they would, of course, be entitled to introduce it on the issue, but the issue would remain one for the jury.

Appellant’s proffered defensive testimony made a prima facie case of entrapment and would have entitled him to submission of the issue. Furthermore, the issue having been raised, the jury would have been instructed that if they had a reasonable doubt on the issue, they must acquit. V.T.C.A. Penal Code, Sec. 2.03(d).

The trial court reversibly erred by excluding the offered testimony. Therefore, the judgment is reversed and the cause remanded.

DOUGLAS, J., not participating.

MORRISON, Judge

(concurring).

While I agree with the reversal of this conviction because of the refusal of the court to permit the jury to hear the proffered testimony, I cannot agree that the time honored defense of entrapment is the answer. The defense of necessity is far more fitting for the facts in this case. Surely the officers did not induce this appellant to arm himself for the purpose of catching him so that they could prosecute him. This would be entrapment. See Ramirez v. State, 164 Tex.Cr.R. 498, 301 S.W.2d 125, as an example of how the doctrine applies. See also Practice Commentary, V.T.C.A., Penal Code, Sec. 8.06.

What the officers told this appellant was that his life was in danger and that he had better stay in crowds or arm himself. Presumably, they had no idea that he was going to commit this offense, and, by the same token, they did not intend to catch him and prosecute him therefor. The defense of necessity was thus available to appellant under V.T.C.A., Penal Code, Sec. 9.22, and the testimony should have gone to the jury.

I concur in the reversal of this conviction.

      . I paraphrase the Practice Commentary, V.T.C.A., Penal Code, following Sec. 9.22: If the harm sought to be avoided (the killing of this appellant by those involved in the murder conspiracy) was clearly greater than the harm actually caused (that is, the offense of carrying a pistol into a lounge), the appellant’s conduct in carrying the pistol is justified, and he is exonerated.


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    Mary J. CHANCE, Appellant, v. The STATE of Texas, Appellee.
    No. 50267.
    Court of Criminal Appeals of Texas.
    Oct. 22, 1975.

      Stan Brown, Abilene, for appellant.
    Ed Paynter, Dist. Atty., Jim Smart, Asst. Dist. Atty., Abilene, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from an order revoking probation.

Appellant was convicted of the misdemeanor offense of swindling by check and her punishment was assessed at two years’ confinement in the county jail. Imposition of the sentence was suspended and probation granted. Subsequently, probation was revoked upon the findings of the trial court that the appellant had violated the terms of her probation by committing theft by check and by leaving the county without the permission of her probation officer, as alleged in the motion to revoke.

Appellant contends that the trial court abused its discretion in overruling her motion for continuance. The ground for the motion was that she was “physically and mentally unable to go through such hearing at this time and moreover would probably not survive in the event the outcome of such hearing were to go against her.”

The trial judge filed “Findings of Fact and Conclusions of Law” detailing the various mental and physical maladies from which the appellant was suffering at the time of the hearing. These included anxiety, depression, hysteria, emphysema, coronary problems, hypertension, numbness in her right side, chest pains, shortness of breath, and obesity. Also enumerated are the types and dosages of her medication.

The findings and conclusions state, in part:

“4. That Defendant showed some signs of improving during the 17-day period of treatment by Mr. Showbarger and Dr. Cooke and would probably continue to improve with such treatment.
“5. That it would be possible, by continuing such treatment, that Defendant would return to a more normal state within a period of two months from the date of the hearing, August 22 and August 23, 1974.
“6. That the average person at the date of this hearing would probably not be in such a state of anxiety as Defendant.
“13. That due to all of the above and foregoing conditions the Defendant’s ability to assist her counsel had been greatly diminished.”

There was evidence presented at the hearing on the motion for continuance to support each of the findings. Parts of the testimony of appellant’s psychologist substantiated the statements contained in paragraphs 4-6 above, although other parts were ambivalent. Appellant’s attorney testified that, “[B]ased upon what I have learned ... I can state for a fact that the defendant is unable to adequately assist me in handling this hearing on this date. . . .’’At least one recess was necessitated by appellant’s condition.

On the other hand, the appellant attended both the hearing on the motion for continuance and the hearing on the revocation of her probation. She testified at both hearings and withstood cross examination, maintaining throughout a consistent defensive theory. Her testimony was reasonably lucid and coherent. Her attorney developed and argued all relevant issues, called several witnesses, and generally appeared familiar with the case.

It is well established that the disposition of a motion for continuance based upon equitable grounds lies in the sound discretion of the trial court. Ward v. State, Tex.Cr.App., 520 S.W.2d 395; Hernandez v. State, Tex.Cr.App., 492 S.W.2d 466; DeLao v. State, Tex.Cr.App., 489 S.W.2d 613. See Article 29.03, Y.A.C.C.P. From the above discussion of the evidence and events at both hearings, it is obvious that if we were confronted only with the bare refusal of the trial court to grant the continuance, we would not disturb the implied findings of fact. The court was in the best position to assess the evidence and had an ample basis for such implied findings. See Compton v. State, Tex.Cr.App., 500 S.W.2d 131; Junior v. State, 165 Tex.Cr.R. 332, 307 S.W.2d 262; Dix v. State, 142 Tex.Cr.R. 607, 155 S.W.2d 923; Gunn v. State, 119 Tex.Cr.R. 248, 44 S.W.2d 699; Tysinger v. State, 112 Tex.Cr.R. 4, 13 S.W.2d 698. For the same reasons, we will not disturb the judge’s written findings of fact arrived at after the hearing, when he had the entire record before him and the memory of the proceedings in mind. A finding that the ability of a defendant to assist his counsel has been greatly diminished, in conjunction with findings that improvement in his condition is expected within a reasonable time, entitles a mov-ant to a continuance. Cf. Compton v. State, supra; Mayfield v. State, 153 Tex.Cr.R. 526, 221 S.W.2d 281. Reid v. State, 138 Tex.Cr.R. 34, 133 S.W.2d 979; Graham v. State, 72 Tex.Cr.R. 9, 160 S.W. 714; Streight v. State, 62 Tex.Cr.R. 453, 138 S.W. 742. Hence, an abuse of discretion has been shown.

The judgment is reversed and the cause remanded.

DOUGLAS, J., not participating.

      . The record does not reflect the duration of the recess, but the trial court without request interrupted cross examination of a State’s witness and declared: “We will recess for about ten or fifteen minutes to see if you can help Mrs. Chance.”


author: DALLY, Commissioner.

text:
    Kenneth Noel FAULKS, Appellant, v. The STATE of Texas, Appellee.
    No. 50461.
    Court of Criminal Appeals of Texas.
    Oct. 22, 1975.

      Jack Rushing, Dallas, for appellant.
    Henry Wade, Dist. Atty., Richard W. Wilhelm and Paul Macaluso, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of burglary, which was committed on August 20, 1974; after a jury trial and pursuant to appellant’s election, the court set the punishment at imprisonment for 5 years.

The only question presented for review is whether the indictment is duplicitous.

The complained of indictment charged that the appellant:

“. . . did unlawfully, then and there intentionally and knowingly and without the effective consent of Marjorie Tyre, hereafter called Complainant, enter a building owned by the said Complainant and did then and there commit theft, to wit: did then and there unlawfully exercise control over personal property of Complainant the owner thereof without the effective consent of the said Complainant, and with intent to deprive the said owner of said property.”

It is appellant’s contention that the trial court erred in refusing to quash the indictment. He asserts that the indictment charges him in the same count with two separate offenses — burglary and theft — and that it is therefore duplicitous. There is no written motion to quash the indictment in the record; however, the appellant’s counsel made an oral motion to quash the indictment immediately prior to trial. Article 27.10, V.A.C.C.P. [formerly Article 513, V.A.C.C.P. (1925)] requires that all motions to set aside an indictment or information shall be in writing. It was held under former Article 513, V.A.C.C.P. (1925), that an oral motion to quash or to dismiss the indictment preserved nothing for review. Fegan v. State, 152 Tex.Cr.R. 452, 215 S.W.2d 163 (1948); Quarles v. State, 398 S.W.2d 935 (Tex.Cr.App.1966); Stecher v. State, 383 S.W.2d 594 (Tex.Cr.App.1964); Riley v. State, 379 S.W.2d 79 (Tex.Cr.App.1964). The requirement of a written motion is the same under Article 27.10, V.A.C.C.P.; therefore, appellant’s contention is not properly before us for review. However, were this ground before us, we would hold the overruling of the motion to be proper.

Appellant relies on Article 21.24, V.A.C. C.P., which provides:

“An indictment, information or complaint may contain as many counts charging the same offense as the attorney who prepares it, acting in good faith, may think necessary to insert, but may not charge more than one offense. An indictment or information shall be sufficient if any one of its counts be sufficient.”

Burglary and theft are separate offenses; Punchard v. State, 124 Tex.Cr.R. 101, 61 S.W.2d 495 (1933); Alarcon v. State, 92 Tex.Cr.R. 288, 242 S.W. 1056 (1922); it has therefore generally been the practice to return separate indictments for these offenses. It has, however, long been established that the offenses of burglary and theft may be charged in the same count of a single indictment. Williams v. State, 24 Tex.App. 69, 5 S.W. 838 (1887); Turner v. State, 22 Tex.App. 42, 2 S.W. 619 (1886); Bernal v. State, 95 S.W. 118 (Tex.Cr.App.1906).

Under former Penal Code provisions it was held that both burglary and theft could be charged in the same count of an indictment. See Bernal v. State, supra; Powers v. State, 154 Tex.Cr.R. 73, 225 S.W.2d 176 (1949); Shepherd v. State, 42 Tex. 501 (1875); Hobbs v. State, 44 Tex. 353 (1875). Further, it is said in 3 Tex.Jur.2d, Indictment and Information, Sec. 43, pp. 612-3, that:

“Where the definition of one offense so includes another that proof of the one necessarily includes or makes out the other, both may be charged in the same count ... An indictment for burglary may also charge theft in the same count . . ”

There is nothing contained in V.T.C.A. Penal Code, Sec. 30.02 (burglary) which would point to a contrary holding under the new Code:

“(a) A person commits an offense if, without the effective consent of the owner, he:
“(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; or
“(2) remains concealed, with intent to commit a felony or theft, in a building or habitation; or
“(3) enters a building or habitation and commits or attempts to commit a felony or theft.

A necessary element of the offense under Sec. 30.02(a)(1) and (2) is the intent to commit a felony or theft. A necessary element of the offense under Sec. 30.02(a)(3) is the commission or attempted commission of a felony or theft. It is therefore necessary, in order to fully apprise the accused of the charges against him, that an indictment for burglary under Y.T.C.A. Penal Code, Sec. 30.02, allege, depending on the subsection involved, an intent to commit, an attempted commission or a consummated felony or theft. Appellant was charged with burglary under Sec. 30.-02(a)(3), and it was therefore necessary to allege the commission or attempted commission of a felony or theft. To allege both the burglary and the theft in the same count is proper. Cf. Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975). The ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

DOUGLAS, J., not participating.

      . In Gonzales v. State, 517 S.W.2d 785 (Tex.Cr.App.1975), this Court held that the constituent elements of the particular theft or intended theft need not be alleged in an indictment or information for burglary with intent to commit theft. We note that this may be the better practice. Cf. Earl v. State, 514 S.W.2d 273 (Tex.Cr.App.1974).


author: BROWN, Commissioner.

text:
    Ex parte Henry Doyle SHUFLIN, Jr.
    No. 50693.
    Court of Criminal Appeals of Texas.
    Oct. 22, 1975.

      Will Gray, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is a post conviction habeas corpus proceeding under Article 11.07, V.A.C.C.P.

On October 19,1973, the petitioner, represented by retained counsel, plead guilty to the offénsé of murder with malice in Cause No. 177,987. He was sentenced to a term of twenty-five years. ,On May 20, 1975, petitioner filed an application for a writ of habeas corpus in the 179th District Court of Harris County, claiming that he plead guilty to murder with malice as a result of judicial coercion. The Hon. I. D. McMaster, who was the presiding judge in the original case, entered an order directing that an evidentiary hearing be held. An evidentia-ry hearing was held on June 10,1975 before the Hon. Fred Hooey, sitting as judge of the 179th District Court of Harris County, pursuant to Art. 199a, Section 2.002(b), V.A. C.S., and Gregory v. State, 495 S.W.2d 891 (Tex.Cr.App.1973). At the close of the hearing the petitioner requested the trial court prepare findings of fact and conclusions of law.

The following findings of fact were made by the trial court:

“1) Petitioner was convicted of the felony offense of Murder with Malice, on October 19, 1973, in Cause No. 177,-987, styled THE STATE OF TEXAS vs. HENRY DOYLE SHUFLIN, JR., in the 179th District Court of Harris County, Texas, Honorable I. D. McMaster, presiding. Punishment was assessed at twenty-five years imprisonment. Appellant was sentenced accordingly.
“2) Appellant was represented by retained counsel, Stuart Kinard, at and prior to his trial, and by assistant counsel, Terry Gaiser, prior to trial but not at time of trial.
“3) At the time of his trial, applicant waived his right to trial by a jury and received all admonitions and determinations required by law, and entered a plea of guilty before the Court.
“4) Applicant’s guilt was proved by competent evidence.
“5) Prior to trial on the plea of guilty to the Court, the same judge had heard evidence for three weeks on pre-trial motions respecting the same .case, had presiding (sic) over selection of a jury in said case, which was never sworn, had then presided over a hearing on change of venue in said case, had agreed to order a change of venue, but postponed said act pending assignment of a county of trial by the presiding judge.
“6) Change of venue was scheduled to be formally ordered on October 19,1973.
“7) Judge I. D. McMaster was expected to preside at trial after a change of venue.
“8) Before a change of venue was formally ordered, Applicant entered his plea of guilty before the Court on October 19, 1973.
“9) During the pre-trial period before October 19, 1975, (sic) plea bargaining had occurred between Assistant District Attorney Jack Bodiford and Applicant’s attorney, Mr. Kinard.
“10) Mr. Kinard had communicated to his client, Applicant here, offers, if a plea of guilty were entered, of recommendation of punishment ranging from seventy-five years down to twenty-five years, all of which had been refused by Applicant.
“11) During the pre-trial hearings, selection of jury and change of venue hearing, Judge McMaster was favorably impressed by the conduct and demeanor of Applicant Shuflin, and Judge McMaster so stated to Applicant Shuflin’s attorney Mr. Kinard, during informal out-of-court conversation.
“12) Mr. Kinard then asked Judge McMaster if the judge would be willing to state his favorable impression of applicant in a letter to the Board of Pardons and Paroles, with recommendation for an early parole for Applicant. Judge McMaster expressed his willingness to do this, at the time Applicant becomes eligible for parole.
“13) Mr. Kinard then requested that the judge write the letter, undated, and give it to Mr. Kinard for Applicant, to guard against the possibility of the event of the judge’s death prior to time of Applicant’s eligibility for parole.
“14) This the judge agreed to do.
“15) At the time these occurrences transpired, Applicant had still rejected all plea bargains.
“16) Judge McMaster attached no condition, directly or indirectly, to his offer to write this letter.
“17) On October 18, 1973, with a formal change of venue scheduled for the following day, Mr. Kinard, with Applicant’s father, consulted with Applicant, evaluating his situation, and recommended that Applicant accept the twenty-five year offer and plead guilty, Mr. Kinard expressing the opinion that the letter Judge McMas-ter would write would have an impact upon the Board of Pardons and Paroles, and Applicant’s father expressing confidence in Mr. Kinard.
“18) Applicant refused to enter a plea of guilty until Mr. Kinard telephoned Mr. Gaiser, Applicant’s former assistant counsel, in whom Applicant had confidence, but after that was done, and Applicant received a report on that conversation, Applicant decided to enter a plea of guilty.
“19) Mr. Kinard had previously investigated the time schedules on parole availability, and had informed Applicant that if he had a twenty-five year sentence, he could, with credit for his back jail time and with certain conduct and diligence, be eligible for parole in about three years. This was based on the computation that he could build eight years credit in four years and four months.
“20) Applicant hoped, with the advantage of a letter from the trial judge, to get parole when he first became eligible.
“21) Mr. Kinard also made it clear to Applicant Shuflin that Applicant would also need to get a letter recommending parole from the District Attorney’s Office and from the Sheriff of Harris County.
‘22) On the morning of October 19, 1973, prior to Applicant’s entry of his plea of guilty, Mr. Kinard informed Assistant District Attorney Jack Bodi-ford that Judge McMaster was going to write a letter recommending early parole for Applicant Shuflin, and asked Mr. Bodiford if he would do the same, to which Mr. Bodiford replied that he would recommend Applicant never receive parole.
‘23) Mr. Bodiford’s position, thus made clear to Applicant’s counsel, was based on his evaluation of Applicant; Mr. Bodiford’s conclusions as to Applicant’s qualities being different from those of Judge McMaster.
‘24) On the morning of October 19, 1973, prior to the entry of Applicant’s guilty plea, Judge McMaster did write and deliver to Mr. Kinard the undated Letter which is Applicant’s Exhibit No. Two, which extols Applicant’s good qualities and expresses the opinion that Applicant ‘assuming that he had been a good inmate, should be given serious and favorable consideration for early release under our parole law.’
‘25) Judge McMaster in this letter expressed his true convictions and he would have been willing to write a similar letter if Applicant had pleaded not guilty to a jury.
“26) Any hope of Applicant’s likely receipt of early parole which Mr. Ki-nard had imparted to Applicant was in accordance with that lawyer’s research and was a genuine hope, as correct as Mr. Kinard could make it.
“27) Before Applicant entered his plea of guilty, Judge McMaster admonished Applicant in accordance with Article 26.13 of the Code of Criminal Procedure of Texas. Applicant’s replies are those required to authorize acceptance of a plea of guilty, and they were true.
“28) Judge McMaster did not engage in any plea bargaining in this case and did not attempt to influence Applicant’s plea of guilty, not guilty, or nolo contendere by his willingness to write a letter aimed at helping Applicant get early parole.
“29) Applicant did not have any reason, from his attorney, to believe the letter was conditioned upon a plea of guilty.”

In his brief the petitioner asserts four distinct yet very closely related contentions. All involve the trial judge’s action in writing the undated letter to the Board of Pardons and Paroles before the petitioner entered his guilty plea. First, petitioner contends that it was fundamentally unfair for the trial judge to enter plea negotiations before an agreement had been reached. Second, the petitioner contends that his plea of guilty was entered because of promises and inducements made by the trial judge in violation of the provisions of Art. 26.13, V.A.C.C.P. Third, the petitioner contends that his guilty plea was obtained in violation of the due process clause of the Fourteenth Amendment to the United States Constitution. The petitioner’s fourth and final contention is that his plea of guilty was involuntary and the result of judicial coercion.

We will deal initially with the petitioner’s last two contentions; namely, that his plea of guilty was the result of judicial coercion and resulted in a denial of due process. The record of the evidentiary hearing reveals the following admission by the petitioner:

“Q Well, did anybody promise you that you would, in fact, receive an early parole from the Board of Pardons and Paroles if you entered a plea of guilty?
“A I believe that with the letter, sir, from Judge McMaster that I would, yes, sir.
“Q But did anybody promise you that?
“A Sir?
“Q Did anybody promise you that?
“A No, sir.
“Q Did anybody promise you that the Governor would pardon you if you entered a plea of guilty?
“A No, sir.
“Q Did you think that you would receive a parole if you entered a plea of guilty? Not what you hoped, but did anyone promise you that?
“A No, sir.
“Q And is it your testimony that Mr. Kinard told you that you would be sworn before you entered your plea of guilty, and then in open Court you would state to the judge that you had not been promised anything such as a pardon from the Governor, or any early parole, or that you were not entertaining any delusive hope of pardon or parole from the Governor at the time, and that you would tell Judge McMaster, ‘No, I do not have any such beliefs as that,’ Is that what you are saying?
“A Yes, sir.
“Q Did you have any further conversations concerning your guilty plea on the morning of the 19th when you did, in fact, enter your plea of guilty?
“A No, sir, other than the fact that I had asked Mr. Kinard if he had the letter, and he showed it to me.
“Q Did he tell you on the 18th that the judge had already said that he would write the letter out at the Rehabilitation Center?
“A Yes, sir.
“Q Now, I believe you said also that as part of your negotiations and conversations with Mr. Kinard on the 18th out at the Rehabilitation Center, that you were told that you would have to have a letter from the District Attorney’s office and one from the Sheriff’s office as well as from the Judge?
No, sir, not on that occasion. I understood that at an earlier conversation at sometime in the jury room, that before I could make parole I would have to have all three. A
‘Q So then when you entered your plea of guilty you knew, of course, at that time that Judge McMaster had written the letter to the Board of Pardons and Paroles; you knew that, didn’t you?
‘A Yes, sir.
‘Q And you also knew that there had been no letter written from the District Attorney’s office recommending an early parole for you? You knew that?
‘A Yes, sir.
‘Q Did you know that I would not write such a letter? Did you know whether I was asked to write such a letter by Mr. Kinard?
‘A No, sir.
‘Q But you also, of course, knew that there was no letter written from the Sheriff’s Department to the Board of Pardons and Paroles. Did you know that?
‘A Yes, sir.
‘Q Now as I understand your frame of mine at the time that you entered the plea of guilty, you did entertain a hope of an early parole based upon the fact that Judge McMaster had written that letter, is that correct?
‘A Yes, sir, that it would help me make an early parole.
‘Q And you knew that no letter from the District Attorney’s office or the Sheriff’s Department had been written?
‘A Yes, sir.
‘Q Tell me in your own words what you believed with respect to an early parole at the time you entered a plea of guilty?
“A I believed, sir, that with that letter in my possession that it would be easier for me to get a parole at the time that I became eligible for parole.”

Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, established the standard to be used in determining the vol-untariness of a plea of guilty.

“A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e. g. bribes).” Citing Shelton v. United States, 246 F.2d 571 (5th Cir. 1957). . . . “The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision.”

The case of Brown v. Peyton, 435 F.2d 1352 (4th Cir. 1970) is in point. In Brown the petitioner contended that the participation of the trial judge in plea bargaining negotiations rendered involuntary his subsequent plea of guilty. The petitioner in Brown urged the court to adopt a rule which would bar the participation of the trial judge in plea negotiations and render any plea resulting from judicial participation per se involuntary. This the Fourth Circuit declined to do. After discussing the implications of Brady v. United States, supra, the Court reached the following conclusion:

“The Supreme Court’s decision in Brady provides the standard by which reviewing courts may now measure any promises which might have induced the defendant’s guilty plea. Simply because the promise made by the judge induced the defendant to plead guilty does not make that plea involuntary, rather, the promise must be of the prohibited type to affect the voluntariness of the defendant’s plea.” Brown v. Peyton, 435 F.2d 1352 (4th Cir. 1970).

Assuming for the moment that the trial judge did participate in the plea negotiations it is clear from the record before us that the defendant’s plea of guilty when measured against the standards of Brady v. United States, supra, and Brown v. Peyton, supra, was voluntarily entered into and was not the result of judicial coercion. It is also clear when measured against the same standards that the petitioner’s plea of guilty was not obtained in violation of the due process clause of the Fourteenth Amendment to the United States Constitution. Petitioner’s third and fourth contentions are without merit.

Petitioner’s second contention is that his plea of guilty was entered because of promises and inducements made by the trial judge contrary to the provisions of Art. 26.13, V.A.C.C.P. The record does not support the petitioner’s contention. At the evidentiary hearing the petitioner testified as follows on cross-examination:

“Q Well, so that the record is clear, you stated a while ago that no one had promised you anything to get you to plead guilty, is that true?
“A Yes, sir.
“Q So when you stood before the Court and he admonished you as to your plea of guilty, you were telling him the truth when he asked if you had been promised a pardon from the Governor that prompted you to con- ' fess your guilt. You were telling him the truth weren’t you?
“A Yes, sir.
“Q And do you remember if he asked you if your plea had been influenced by any considerations of fear, or by any persuasion, or any delusive hope of pardon prompting you to confess your guilt? When you answered him no, you were telling him the truth, weren’t you? You had not been promised any of those things?
“A No.”

Petitioner’s second contention is simply not supported by his own testimony.

We turn now to the petitioner’s allegation that it is fundamentally unfair for the trial judge to enter the plea negotiations. Petitioner’s allegations assume that Judge McMaster did, in fact, enter the plea discussions. The findings of fact from the evidentiary hearing conclude that Judge McMaster did not enter the plea negotiations by offering to write a letter recommending early parole. At the evidentiary hearing Judge McMaster testified that his offer to write a letter on behalf of the petitioner was in no way conditioned on the petitioner’s plea of guilty. He stated that he would have written the letter without regard to the petitioner’s decision to accept or reject the prosecution’s offer of twenty-five years. Mr. Kinard, the petitioner’s attorney at the time of his plea of guilty, testified that the offer of Judge McMaster was not conditioned on the petitioner’s willingness to plead guilty. Mr. Kinard further testified that he explained the operation of the parole laws to his client, including the fact that petitioner would have to obtain letters from both the prosecuting attorney and the sheriff, in addition to the one from the trial judge, if he hoped to obtain an early parole. Mr. Kinard also stated that it was his recommendation that his client accept the offer of twenty-five years. The petitioner conceded that the requirements for early parole were explained to him by his counsel and that he understood that early parole was in no way guaranteed by the letter from Judge McMaster.

In Kincaid v. State, 500 S.W.2d 487 (Tex.Cr.App.1973) this Court stated:

“It would have been unjudicial and contrary to public policy for the trial judge to commit himself as to his decision prior to the hearing. Our system contemplates that decisions are to be reached after evidence and argument of counsel and not before. As experienced trial lawyers, appellant’s counsel must have been aware of this, and were charged with upholding the integrity and the justice of our judicial process. They should not have sought or expected the trial judge to commit himself in advance of the hearing.” (Footnotes omitted)

This case was briefed and argued by both the petitioner and the State in terms of the trial judge’s participation, or not participation in the plea discussion process. This may be an imprecise analysis of the issue. Rather what is at issue is the effect of the trial judge’s apparent pre-judgment of the petitioner. The petitioner had maintained his plea of not guilty throughout the lengthy pre-trial hearing, the jury selection, and the change of venue hearing. The petitioner also knew that the trial judge would accompany the case after the change of venue was granted. It was in this context that the offer to write to the Board of Pardons and Paroles was made known to the petitioner. Only then did he decide to change his plea from not guilty to guilty. When viewed through the eyes of a layman, this could be interpreted to mean that the judge had already determined in his own mind that the petitioner would be convicted, even before the trial began. If the petitioner viewed the judge’s action in this way, would not a continued plea of not guilty only result in a longer sentence and reduced chances of early parole?

The record before us, however, indicates that the petitioner was not a neophyte in the criminal justice system. The record also shows that he was carefully advised by competent counsel at every step in the proceeding. Therefore, whether viewed as plea bargaining or not, the plea of guilty entered by the petitioner was not the result of fundamental unfairness and no harm is shown to the petitioner.

The American Bar Association’s standards relating to pleas of guilty and the function of the trial judge (not adopted by this State) provide excellent guidance. These standards provide that the trial judge should not participate in plea discussions until tentative agreement has been reached. This is to avoid even the appearance of judicial coercion or prejudgment of the defendant by the court. The commentary accompanying the standards explains the reasons why a trial judge should not inject himself into the plea discussion process.

We conclude that the record before us supports the findings of fact made at the evidentiary hearing.

We recognize that compassion for another human being is an admirable trait in any person. In a judicial officer compassion is an especially worthy characteristic though it must not overcome that evenhanded impartiality which is required of a trial judge.

It is only after the trial judge has passed on the evidence and the plea of the defendant that he can allow himself to express his personal offer of assistance to the defendant. The proper practice is for the trial judge to carefully avoid participation or the appearance of participation in plea discussions or negotiations until such time as an agreement has been reached.

Having concluded that the findings of the trial court at the evidentiary hearing are supported by the record, petitioner’s requested relief is denied.

Opinion approved by the Court.

DOUGLAS, J., not participating.

      . ABA Standards relating to the Administration of Criminal Justice, Pleas of Guilty, Section 3.3(a) (Approved Draft 1968) provide that:
      “The trial judge should not participate in plea discussions.”
      See also ABA Standards relating to the Administration of Criminal Justice, Function of the Trial Judge, Section 4.1(a) (Approved draft 1972) which provides that:
      “The trial judge should not be involved with plea discussions before the parties have reached an agreement other than to facilitate fulfillment of the obligation of the prosecutor and defense counsel to explore with each other the possibility of disposition without trial.”

      . See commentary accompanying Section 3.3(a), ABA Standards relating to the Administration of Criminal Justice, Pleas of Guilty. We also take note of the Code of Judicial Conduct of the Judiciary of the State of Texas. Canon 2 admonishes the judge to “avoid impropriety and the appearance of impropriety in all his activities.” Canon 3 A.(4) provides in part that: “A judge should . . . neither initiate nor consider ex parte or other private communications concerning a pending or impending proceeding.”


author: DAVIS, Commissioner. ROBERTS, Judge ONION, Presiding Judge

text:
    Charles Ray GREEN, Appellant, v. The STATE of Texas, Appellee.
    No. 50784.
    Court of Criminal Appeals of Texas.
    Oct. 22, 1975.

      Kenneth J. Vitucci, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell and Gerard Guerinot, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from an order revoking probation. Appellant entered a plea of guilty before the court to the offense of forgery of a credit card on June 12, 1973. Punishment was assessed at seven years probated.

The State filed a motion on February 12, 1974, alleging that appellant violated a condition of his probation in that on January 17, 1974, appellant “committed the offense of aggravated robbery in Harris County, Texas. . . . ”

The record reflects that after a hearing on October 4, 1974, the court entered an order revoking appellant’s probation finding that appellant had violated the terms of his probation “in that on the 17th of January, A.D. 1974, he did commit the offense of aggravated robbery in Harris County, Texas.”

Appellant contends the court abused its discretion in revoking probation in that the evidence is insufficient to support the court’s finding that appellant committed a violation of the law.

After the State offered a certified copy of the judgment in the primary offense and appellant was identified as the person named in the judgment, the State then offered:

“. . . all of that evidence which this Court heard at the date of trial of this cause, the State of Texas versus Charles Ray Green in Cause No. 209,070, styled The State of Texas versus Charles Ray Green, said charge being that of aggravated robbery.”

The court then noted that Cause No. 209,-070 was tried on September 5, 1974, before a jury “in this Court.” It was further established that the judge presiding at the hearing on the motion to revoke was the same judge who presided at the trial of Cause No. 209,070.

The appellant objected to the proffer of evidence from Cause No. 209,070 for the reasons that appellant “is thereby not allowed to confrontation of witnesses in this cause” and “this is hearsay evidence.” The overruling of appellant’s objections by the court forms the basis of this contention.

The identical question was before this Court in Barrientez v. State, Tex.Cr.App., 500 S.W.2d 474. In that case, this Court found Hilton v. State, Tex.Cr.App., 443 S.W.2d 844, to be in point, stating:

“As in Hilton, the present appellant was before the same judge in the same court in both the case where the probation was granted as well as the trial of the offense which was made the basis of revoking his probation.”

This Court went on to say that the State should not be forced to reproduce the same witnesses before the same judge and held that the judge could take judicial notice of the evidence introduced in the prior proceeding. See Stephenson v. State, Tex.Cr.App., 500 S.W.2d 855. The holding in Bar-rientez dictates that the court did not abuse its discretion in finding that appellant had violated the conditions of his probation by committing the offense of aggravated robbery.

Appellant contends the court erred in revoking his probation in that the conviction for the subsequent offense which formed the basis for revocation was on appeal and therefore not a final conviction.

We find appellant’s reliance on Prince v. State, Tex.Cr.App., 503 S.W.2d 777, to be misplaced. In Prince, this Court held that probation could not be revoked on the ground that defendant had subsequently been convicted of committing an offense where such conviction was not final. In the instant case, the State did not rely upon the conviction as the basis for its motion to revoke probation. Both the motion to revoke and the order revoking probation were worded to the effect that appellant committed the offense of aggravated robbery. The State alleged and sought to prove the commission, not the conviction, of the offense of aggravated robbery. See Barrientez v. State, supra.

No abuse of discretion is shown in the revocation of appellant’s probation.

The judgment is affirmed.

DOUGLAS, J., not participating.

Opinion approved by the Court.

ROBERTS, Judge

(concurring).

I concur in the result reached in this case. Although it does not appear from the record that counsel at the revocation hearing was the same as counsel at the trial of the aggravated robbery charge, such fact was admitted by the parties at oral argument. The requirements of Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973), for the introduction of this testimony are thus satisfied.

ONION, Presiding Judge

(dissenting).

This case is almost Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973), all over again. The question presented is whether in a probation revocation proceeding a trial judge, over objection, may take judicial notice given in a prior trial and use the same as the basis of the revocation where such testimony is not in any way incorporated in the record.

In Barrientez the majority held that the court could take such judicial notice where the trial judge was the same and where the probationer was represented at the prior trial and the revocation hearing by the same attorney. To such improper and erroneous use of judicial notice this writer dissented. See Barrientez v. State, supra, dissenting opinion.

In the instant case the appellant was identified as the person on probation. Then, relying upon Barrientez, the State offered by inference all of the evidence heard in Cause No. 209070 where the State concluded that the appellant was found guilty of aggravated robbery and assessed a punishment of fifty (50) years. There was no sworn testimony identifying this appellant as the accused in such trial, no showing as to when such trial took place, or any showing that the offense there involved occurred while the appellant was on probation. Further, no predicate was laid in compliance with Article 39.01, Vernon’s Ann.C.C.P., so as to authorize the use of testimony from the prior case, and no transcription of the court reporter’s notes or any other part of the prior record appears in this appellate record. There is no way that this court can, from this record, pass upon the sufficiency of the evidence and any abuse of discretion. For the same reasons set forth in the dissenting opinions in Barrientez v. State, supra, and Stephenson v. State, 500 S.W.2d 855 (Tex.Cr.App.1973), I dissent to the affirmance of this conviction. Further, I would point out again that the Barrientez decision turned upon the fact that the judge was the same and the defense lawyer was the same. In today’s opinion, the majority refers to the fact only that the same judge presided at both the prior trial and the revocation hearing. I hope that the majority is not attempting to extend the rule of Barrientez in a case where the record reflects that the judge and the defense counsel were the same at both proceedings.

For the reasons stated, I dissent.


author: CURTISS BROWN, Justice.

text:
    Lynn W. McGREGOR, Appellant, v. CITY OF HOUSTON et al., Appellees.
    No. 1205.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Sept. 24, 1975.
    Rehearing Denied Oct. 15, 1975.
    Wayne H. Paris, Houston, for appellant.
    Jonathan Day, City Atty., Alan F. Levin, Senior Asst. City Atty., Dennis C. Gardner, Asst. City Atty., Houston, for appellees.
   CURTISS BROWN, Justice.

Lynn W. McGregor (McGregor or appellant) instituted this suit seeking a writ of mandamus to compel the City of Houston, Director of the Firemen’s and Policemen’s Civil Service Commission and Fire Chief (appellees) to promote him to the position and pay of Assistant Arson Investigator. Appellant and appellees both filed motions for summary judgment. Appellant’s motion was denied. Appellees’ motion for summary judgment was granted and the trial court held that as a matter of law the position of Assistant Arson Investigator which McGregor sought was at all material times occupied by H. P. Duckett, that no other vacancies for which McGregor was eligible occurred in said position during the lifetime of the June 30, 1972 promotion eligibility list on which he appeared, and that McGregor had no right to a position on a position reinstatement list. Appellant has duly perfected his appeal. We affirm the judgment of the trial court.

By ordinance of July 8, 1969 the City established four positions of Assistant Arson Investigator. The City apparently thought, erroneously as it turned out, that men could be promoted as needed to these positions and that the existence of a vacancy did not necessarily create an entitlement to promotion. The City filled only one or two of such positions. No current eligibility list existed until one was established on May 7, 1970. The list created on that date contained the names of three individuals, with H. P. Duckett occupying the number three place on that list. D. A. Whigham occupied one of the four positions. The first two individuals on the list were appointed to positions as investigators, but Duckett (who would have occupied the last vacancy) was not. When the May 7, 1970 eligibility list expired by operation of law on May 6,1971, Duckett instituted suit contending that the ninety day provision of section 8 of Article 1269m imposed a mandatory duty on the Fire Chief to promote him or to bypass him following the requirements of section 14E of Article 1269m within ninety (90) days of the occurrence of a vacancy. See Bostick v. Owens 423 S.W.2d 471 (Tex.Civ.App., Forth Worth 1968, writ ref’d n. r. e.).

While the Duckett case was pending in the courts a new eligibility list was established on June 30, 1972. One Brown occupied the first position and the appellant, McGregor, occupied the second. On September 29, 1972, (during the effective period of the June 30 list) one of the holders of the position in question was promoted. Appellant contends, and almost admits that such contention is the foundation of his position, that at this point there were two physically unoccupied positions. Ignoring Duckett, he reasons that as of that time both Brown and appellant were entitled to promotion. On November 8, 1972, the City Council reduced the number of positions to three. The Civil Service Commission ordered Brown promoted to fill the vacancy in the position on May 23, 1973. On June 29,1973, the eligibility list on which McGre-gor’s name appeared expired.

Our decision in this case is controlled by a proper construction of the opinion of the supreme court in Duckett v. City of Houston, 495 S.W.2d 883 (Tex.Sup.1973). The City claims that McGregor would not be entitled to the relief he seeks regardless of our construction of Duckett. In light of our view of that case, however, it will not be necessary to consider the City’s contention in this regard.

As stated above, Duckett occupied the third place on the eligibility list established on May 7, 1970. One position was occupied by Whigham. On June 13, 1970, Mikeska (number one) and Manos (number two) were promoted to the position. The fourth authorized position (sought by Duckett) was not filled. The City took the position that the vacancy was not required to be filled until funds to pay the salary for the position were budgeted. Furthermore, the City claimed that the Fire Chief had the discretion to delay requesting the filling of such authorized position until a need arose. The supreme court held that the ordinance did not purport to authorize surplus positions to be filled at the discretion of the Fire Chief. The court also held that the ordinance in question spoke plainly in terms of creating positions and classifications, and abolishing those theretofore existing which were in conflict. The supreme court then concluded that section 8 of Article 1269m required that all vacancies be filled by permanent appointment from the eligibility list within ninety days after such a vacancy occurs. The court held that a vacancy did exist and that Duckett had established his right to the promotion to fill it. The judgment of the supreme court reversed the judgment of the court of civil appeals and affirmed that of the trial court. The trial court’s judgment in the Duckett case provided that the City and the officials involved must “certify and record plaintiff’s promotion to the position and pay of Assistant Arson Investigator on August 6, 1970, for all purposes.” The effect of this judgment was to fill the vacancy under the eligibility list of May 7, 1970. That is Mikeska (number one), Ma-nos (number two), and Duckett (number three). No other vacancy for which McGre-gor was eligible occurred during the lifetime of the June 30, 1972 eligibility list on which he appeared.

The judgment of the trial court is affirmed.

Affirmed.


author: PRESLAR, Chief Justice.

text:
    MAPCO, INC., Appellant, v. Frank RATLIFF, Appellee.
    No. 6437.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 1, 1975.
    Rehearing Denied Oct. 29, 1975.

      Lynch, Chappell, Allday & Aldridge, Randall Lundy, D. Bruce Pope, Midland, for appellant.
    Crenshaw, Dupree & Milam, Brad Crawford, Jr., Cecil C. Kuhne, Lubbock, for ap-pellee.
   OPINION

PRESLAR, Chief Justice.

This is an action by a pipeline owner against a plowing contractor for severance of a buried pipeline. Involved are questions of trespass to personalty, negligence, and contributory negligence. Based on a jury verdict, a take nothing judgment was entered from which the plaintiff, Mapeo, brings this appeal. The judgment will be affirmed.

In 1960, plaintiff Mapeo purchased a pipeline easement from the owner of the land in question, which easement provided that the pipeline “shall be constructed at sufficient depth below the surface of the ground to permit normal cultivation, ..” The pipeline was severed by the defendant while “deep plowing” for the owner. The pipeline was originally constructed at a depth of 48 inches, but at the time of the puncture the evidence as to its depth ranges from 22 to 30 inches. The change in depth was due to the shifting sands of Gaines County where wind erosion of the soil is a serious problem. To combat the problem, the soil is plowed deep enough to bring up clay to mix with the surface sands. This process of deep plowing was found by the jury to be normal cultivation in the area and the evidence supports that finding.

Mapeo as plaintiff alternatively pled trespass and negligence. Mapeo cannot recover in trespass because its line was not within its easement. Hence, there was no invasion of its estate. The easement granted was to a “sufficient depth below the surface of the ground to permit normal cultivation, . . ..” By the jury findings, the pipeline at the time of puncture was not below that depth. It was not within the easement. This is an important fact and distinguishes this case from those relied on by Mapeo under its trespass theory. See for example the cases of Mountain States Telephone and Telegraph Company v. Vowell Construction Company, 161 Tex. 432, 341 S.W.2d 148 (1960), Pioneer Natural Gas Co. v. K & M Paving Co., 374 S.W.2d 214 (Tex.1963), and Phillips Pipe Line Company v. Razo, 420 S.W.2d 691 (Tex.1967). There the Court stated “Phillips was lawfully maintaining its pipeline in the easement granted it by the landowner.” The same was true in Vowell. Such was not the case here and Mapeo cannot recover in trespass. Pioneer was not decided on a trespass theory, but on an unusual and extraordinary use of the surface.

On the negligence theory, the jury found that the defendant was negligent in failing to make further investigation after seeing the pipeline markers. Mapco was found guilty of contributory negligence by a cluster of issues numbered 8, 9 and 10; the jury found it failed to maintain the pipeline at a depth to permit normal cultivation, that such was negligence and a proximate cause. Mapco urges that these issues should be disregarded because first, it had no duty to maintain under its easement, and secondly, it had no duty because of the lack of foreseeability. It first argues that it had only a duty to “construct” its pipeline below normal cultivation depth. This argument must be rejected for clearly the parties did not intend that cultivation would be only on the day of construction but that it would continue through the years. The easement said construct and maintain. Also, the construction placed on the easement by the parties themselves is the strongest evidence of their intention; through the years Mapco had reburied the line when the shifting sands uncovered it. In fact, the north half of the section where this break occurred had been reburied twice since 1960. This occurrence was in 1970.

On the question of foreseeability, it is urged that there was no duty to maintain because of the jury’s findings on issue number 11: “Do you find from a preponderance of the evidence that Mapco knew, or in the. exercise of ordinary care should have known, that the line on the property where the puncture occurred was not of sufficient depth to permit normal cultivation procedures?” To that the jury answered no. Mapco does not contend that this issue is in conflict with Special Issues 8, 9 and 10, but instead is an evidentiary fact finding going to the legal question of whether Mapco had a duty to maintain its line below normal cultivation depth. We are of the view that Issue 11 has been rendered immaterial by the jury findings on 8, 9 and 10 and was properly disregarded. Tex.R.Civ.P. 301, C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966). Under the Court’s definition of negligence, the jury found that the “failure to maintain” was negligence. That was a continuing duty, which is not overcome by the finding in issue number 11. Issue 11 does not establish the fact that Mapco had no knowledge; it is a failure to prove a negative — no knowledge; and it is a finding that the evidence does not preponderate as to such knowledge.

On the question of the duty to maintain, we quote from Phillips Pipe Line Company v. Razo, supra:

“Phillips was lawfully maintaining its pipeline in the easement granted it by the landowner. The operator of a pipeline has the duty of ordinary care in the construction and maintenance of its lines, but this duty does not extend to hold the pipeline operator liable for every conceivable contact with its pipeline. In Pioneer Natural Gas Co. v. K & M Paving Co., 374 S.W.2d 214 (Tex.Sup.1963), this Court held that pipeline operators had the ‘duty to properly install their lines and to avoid dangers from occurrences such as leaks and breaks in the pipe which could result from others making ordinary use of the surface.’ (Emphasis added.)”

In the case before us, the ordinary use of the surface — specifically reserved by the landowner in his easement — was for cultivation. Normal cultivation for the shifting sands of Gaines County was the deep plowing practice which caused the damage here. The evidence is that deep plowing was practiced at the time of this occurrence. It was also practiced at the time of the granting of the easement in 1960. That distinguishes this case from the ease of Brennan v. Socony Mobil Oil Company, 254 F.Supp. 792 (S.D.Tex.1966), aff’d, 385 F.2d 951 (5th Cir. 1967) where “root plowing” was unknown when that easement was executed. The evidence of deep plowing is undisputed, the only variance being as to how often different farmers practiced it. This ordinary use of the surface should have been anticipated by Mapco and charged it with foreseeing such use.

All points of error have been considered and all are overruled, including Appellee’s cross-point. The judgment of the Trial Court is affirmed.


author: SPURLOCK, Justice.

text:
    CITY OF DENTON, Texas, Appellant, v. Clayton MATHES et al., Appellees.
    No. 17646.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 3, 1975.
    Rehearing Denied Oct. 31, 1975.

      Coleman, Philips & White, and Earl L. Coleman, Denton, for appellant.
    Kelsey & Wood, and R. William Wood, and Whitten & Loveless, and Curtis M. Loveless, Denton, for appellees, Clayton Mathes and wife Dorothy Holden Mathes.
    Lancaster Smith, Dallas, John L. Sullivan, Denton, Harvey L. Davis, Dallas, for appellee, Pargas.
   OPINION

SPURLOCK, Justice.

Cornelius Holden, as next friend for his daughter, Dorothy Holden, brought suit against Pargas, Inc., for damages for personal injuries resulting from a collision between a motorcycle on which she was riding as a passenger and a truck being driven by an employee of Pargas at an intersection in the City of Denton, Texas, where the traffic was controlled by a traffic control system of lights installed and operated by the City of Denton.

Pargas, as third party plaintiff, sued the City of Denton, charging negligence of the City of Denton in its operation of the traffic control signals and asked for contribution or indemnity from the City of Denton.

Clayton Mathes, the operator of the motorcycle, had also filed suit, and after the marriage of Miss Holden and Mathes subsequent to the accident, these suits were consolidated and tried.

Upon answers to issues submitted to the jury, the court rendered judgment in favor of the plaintiffs and against Pargas and the City, jointly and severally, and judgment in favor of Pargas against the City for full indemnity. The City has appealed.

We affirm.

On August 18,1972, these plaintiffs were proceeding south on South Elm Street on a green traffic signal light when the driver for Pargas, driving a pickup truck and coming from the opposite direction, made a left turn into them. A vehicle travelling south on South Elm Street would be on a one-way southbound street until the driver reached its intersection with Eagle Drive, at which point the name changed to Fort Worth Drive and two-way traffic began.

About two months before the collision the City of Denton had installed a new traffic control device and changed the sequences. At one point in the new sequence, traffic proceeding south on Elm had a green light indicating that traffic was allowed to proceed south, and the signal facing traffic going north was changed so that a vehicle preparing to turn left onto Eagle would face a red light with a green arrow.

Immediately prior to the collision Mr. Mathes slowed the speed of his motorcycle to make sure that he could stop in the event the green light changed to red before he arrived at the intersection. At that time the Pargas truck was going very slowly, apparently stopping. When the light facing Mathes remained green as he entered the intersection he accelerated slightly. The driver of the Pargas truck, going in the opposite direction had slowed for the red light facing him but before he stopped a green left-turn arrow appeared in the red light indicating to him that he could make a left turn, which he did, striking the motorcycle with his left head light and fender. Mrs. Mathes was thrown from the motorcycle and struck a city owned vehicle occupied by an assistant warrant officer of the City of Denton who was then on duty.

Mr. William Moore, Traffic Control Engineer for the City of Denton, stated that prior to the change in the traffic light on June 1, 1972, the traffic lights were in conformity with the 1971 National Manual. This manual went into effect in Texas on June 1, 1972. After this manual went into effect, the City, under Mr. Moore’s direction, had the lights changed so that they would not then conform with state law which adopted the 1971 National Manual. He stated that: lights remained in that condition until the date of the accident; the signal sequence in question permitted a ear going south to come in conflict with a vehicle coming in the opposite direction which was making a left turn on a red light with green error; and each of the drivers of the vehicles here involved would then assume he had the right-of-way and would not know the signals would permit the vehicles to come in contact with one another.

The witness Moore testified that the City was obligated to comply with this manual. In addition, he admitted that under existing law at the time of the collision such signal should not be used when a two-way street merged into a one-way street and that the City was bound by the manual. He admitted that: no warning signals were posted advising the travelling public of the danger involved; this was the only signal light that functioned in this manner in the City; it would take from one to two days to change the lights so that they would conform with existing law; he had been in the traffic department of some cities prior to his present position; and at the time of the accident he was a college student majoring in economics.

The driver for Pargas testified that he saw plaintiffs proceeding toward him and thought they would stop because they would surely have a red light facing them. He then ceased looking toward the approaching motorcycle and looked to his left and proceeded until the collision occurred.

In response to special issues the jury found that the driver of the Pargas truck failed to keep a proper lookout which was a proximate cause of the occurrence in question; he was not driving at a greater speed than a person using ordinary care would have driven; and that he did not turn left at a time when a person of ordinary care would not have done so.

The jury was given the following definition of “actual notice”:

“. . . actual notice embraces those things of which the one sought to be charged has express information, and likewise those things which a reasonably diligent inquiry and exercise of the means of information at hand would have disclosed.”

The jury answered “We do” to each of the following issues having to do with actual notice:

“Issue No. 7: Do you find from a preponderance of the evidence that THE CITY OF DENTON, at or near the time of the collision in question, had actual notice that CLAYTON MATHES received some injury therein?

“Issue No. 8: Do you find from a preponderance of the evidence that THE CITY OF DENTON, at or near the time of the collision in question, had actual notice that DOROTHY HOLDEN MATHES received some injury therein?

“Issue No. 9: Do you find from a preponderance of the evidence that THE CITY OF DENTON, at or near the time of the occurrence involved herein had actual notice of the material facts pertaining to the time, manner and place of the collision involved in this suit and the personal injuries sustained by CLAYTON MATHES and DOROTHY HOLDEN MATHES?”

The jury also answered “We do” to these issues:

“Issue No. 10: Do you find from a preponderance of the evidence that at the time and on the occasion in question the Defendant, City of Denton, Texas, used a steady green arrow indication on Fort Worth Drive which would be in conflict with other vehicles crossing the intersection?

“Issue No. 11: Do you find from a preponderance of the evidence that such use was negligence?

“Issue No. 12: Do you find from a preponderance of the evidence that such use was a proximate cause of the occurrence in question?

“Issue No. 13: Do you find from a preponderance of the evidence that the Defendant, City of Denton, Texas, failed to correct said conflicting traffic condition within a reasonable time after notice of said condition?

“Issue No. 14: Do you find from a preponderance of the evidence that on the occasion in question the defendant, City of Denton, Texas, installed at the intersection in question arrows that were used on the two-way Fort Worth Drive approach to the one-way Elm Street approach which gave a false impression of a protected turning movement?

“Issue No. 15: Do you find from a preponderance of the evidence that such installation was negligence?

“Issue No. 16: Do you find from a preponderance of the evidence that such installation was a proximate cause of the occurrence in question?

“Issue No. 17: Do you find from a preponderance of the evidence that the defendant, City of Denton, Texas, failed to correct said false impression within a reasonable time after notice thereof?

“Issue No. 18: Do you find from a preponderance of the evidence that the defendant, City of Denton, Texas, failed to provide any warning sign or traffic device at the intersection in question that northbound traffic was permitted to turn left on a green arrow at the same time southbound traffic was permitted to pass through the intersection in the opposite direction on a green indication?

“Issue No. 19: Do you find from a preponderance of the evidence that such failure was negligence?

“Issue No. 20: Do you find from a preponderance of the evidence that such failure was a proximate cause of the occurrence in question?

“Issue No. 21: Do you find from a preponderance of the evidence that the defendant, City of Denton, Texas, failed to correct said absence of any warning sign or traffic device within a reasonable time after notice thereof?”

The jury’s answers to the above issues are amply supported by the evidence in the record. No answer was against the great weight and preponderance of the evidence.

This appeal is predicated upon 9 numbered points of error, some of which points contain more than one point of error, and consume over 10 pages of the brief.

The appellees object to this Court considering five of the points of error for the reason they are multifarious, duplicitous, argumentative, and present abstract propositions of law in violation of Rule 418, T.R.C.P., and cites as authority Smith v. Brown Express, 343 S.W.2d 550 (San Antonio Civ.App., 1961, ref. n. r. e.), and Kirkman v. Amarillo Savings Ass’n of Amarillo, 483 S.W.2d 302 (Amarillo Civ.App., 1972, ref., n. r. e.).

Pargas further objects to the consideration of all of appellant’s points of error because none refer to pages of the transcript where supporting assignments of error may be found. Rule 418, T.R.C.P.

Pargas further objects to each statement under appellant’s points because they contain extensive arguments and conclusions and failed in a number of instances to refer to pages of the record where the testimony may be found. Rule 418, T.R.C.P. It cites as authority: Coastal Transmission Corporation v. Lennox, 331 S.W.2d 778 (San Antonio Civ.App., 1960, no writ hist.); Bookoat v. Pugh, 513 S.W.2d 281 (Corpus Christi Civ.App., 1974, no writ hist.); Rosas v. Shafer, 411 S.W.2d 809 (San Antonio Civ.App., 1966, ref., n. r. e., 415 S.W.2d 889, Tex.Sup., 1967. In the per curiam opinion the Supreme Court, in refusing a writ, stated the Court of Civil Appeals reached a right conclusion on the merits but that the points of error should have been considered.)

In Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943) it was stated that the Court would pass on the sufficiency of the “points” in light of the statement and arguments thereunder, even though in that case the brief was long and violated our briefing rules in several material particulars. This Court has carefully read the lengthy transcript and the entire statement of facts contained in two volumes, and appellant’s brief consisting of 82 pages, and correlated same by cross references and will in this instance pass upon the asserted errors contained in the rather verbose points of error.

The Texas Tort Claims Act, Article 6252-19, V.A.T.S., herein referred to as “Act”, defines what is meant by government and units of government. This definition includes a city. Other pertinent provisions are as follows:

Section 3 of the Act, stated in summary form, provides that a governmental unit is liable for money damages for personal injuries or death caused by the negligence of the City acting through its employees in three general areas: the use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property.

Section 4 provides for a waiver of sovereign immunity.

Section 13 provides as follows: “The provisions of this Act shall be liberally construed to achieve the purposes hereof.”

Section 14 contains 12 exemptions, the pertinent exemptions are as follows:

“(7) Any claim based upon the failure of a unit of government to perform any act which said unit of government is not required by law to perform. If the law leaves the performance or nonperformance of an act to the discretion of the unit of government, its decision not to do the act, or its failure to make a decision thereon, shall not form the basis for a claim under this Act.

“(9) Any claim based on an injury or death connected with any act or omission arising out of civil disobedience, riot, insurrection or rebellion or arising out of the failure to provide, or the method of providing, police or fire protection.

“(12) Any claim arising from the absence, condition, or malfunction of any traffic or road sign, signal, or warning device unless such absence, condition, or malfunction shall not be corrected by the governmental unit responsible within a reasonable time after notice, or any claim arising from the removal or destruction of such signs, signals or devices by third parties except on failure of the unit of government to correct the same within such reasonable time, after actual notice. . . .”

The section in effect at the time of the collision, concerning notice of death or notice of injury, is as follows:

“Sec. 16. Except where there is actual notice on the part of the governmental unit that death has occurred or that the claimant has received some injury, any person making a claim hereunder shall give notice of the same to the governmental unit against which such claim is made, reasonably describing the injury claimed and the time, manner and place of the incident from which it arose, within six months from the date of the incident. Provided, however, except where there is such actual notice, charter and ordinance provisions of cities requiring notice within a charter period permitted by law are hereby expressly ratified and approved.”

Section 20 contains a general repeal clause which provides: “All laws or parts of law, and all enactments, rules and regulations or any and all units of government, and all organic laws of such units of government, in conflict herewith are hereby repealed, annulled and voided, to the extent of such conflict.”

The record reflects that the City, acting through its traffic department, installed the traffic light in question in violation of state law. Shortly after the installation numerous persons called the Traffic Department, Engineering Department, and Police Department complaining of the dangerous condition caused by the installation and maintenance of such lights. This continued for a period of 6 weeks prior to the collision here involved. A gasoline station operator whose place of business was at this intersection testified that after the traffic signal was changed to the condition in question he often heard the “screech of tires and people cussing each other”, and that automobile collisions occurred and people were wondering what was wrong with the lights. This witness called the City repeatedly advising it of the dangerous condition, as did his wife and several of his customers. He testified that the traffic light condition caused the drivers entering the intersection to play a game of Russian roulette. There were no warning signals advising people of the dangerous conditions.

Mr. Moore, Traffic Control Engineer for the City, admitted having received such phone calls over a period of time prior to the collision, and had received a copy of the traffic report of the collision here involved.

The assistant warrant officer, driving a City car which was slightly damaged in the collision, proceeded to the City attorney’s office and had the City attorney’s secretary complete an accident report which was forwarded to the State of Texas. There was admitted into evidence a part of the accident report prepared by the City’s investigating officer and his partner shortly after the accident occurred which was filed with the City. This accident report showed the details of the physical facts such as measurements of streets, point of impact, position of vehicles, and the fact that each of the plaintiffs was injured. This witness discussed the accident shortly after it occurred with the City attorney at which time he informed the City attorney of the light situation and the fact that both plaintiffs suffered serious injuries.

In Sparkman v. Maxwell, 519 S.W.2d 852 (Tex.Sup., 1975), that court had before it a fact situation very similar to one in this ease. The City of Wichita Falls had installed traffic signals similar to the ones here involved which caused the collision. In that case the traffic engineer had ordered the signals installed; a police officer noticed the confusion in the traffic caused by the lights. He notified the traffic engineer that something was wrong with the lights, the traffic engineer who had installed the lights also observed the signal and the confusion it was causing several days prior to the collision. Our Supreme Court held that during the period prior to the collision the City had notice in ample time to alter or remove the signal prior to the date of the collision. In other words, such notice was notice to the City in compliance with the notice provisions of the Act. That court further held that: the City was not immune from liability because the signal in question was installed in accordance with the exercise of a legislative function which was exempt from the Act by specific provisions (Subdivision 12 of Section 14); the 1971 National Manual on Uniform Traffic Control Devices for Streets and Highways became effective in Texas on June 1, 1972, after the accident in that case; and the condition of the traffic lights indicated above created a risk of harm to travelling public and the City’s failure to correct the traffic signal within a reasonable time after notice was received subjected it to liability under the Texas Tort Claims Act.

The Sparkman case disposes of most of the points of error asserted by the City of Denton.

The first point asserts error by the court in granting judgment for plaintiffs and Pargas because there is no evidence that the plaintiffs nor Pargas had given notice to the City within 6 months of the collision that they intended to file a claim against the City. It is the contention of the City that even if the City had immediate actual knowledge of the collision and the injuries sustained, and that the City’s negligence contributed to the injuries, the plaintiffs and Pargas each were required to give a formal notice to the City within 6 months of the date of the collision that they intended to file a claim against the City, and the Court erred in not rendering judgment for the City.

By its second point the City asserts error in that since plaintiffs had no cause of action against the City, Pargas had no right of indemnity; that therefore the court erred in not rendering a “take nothing judgment” in favor of the City and in granting Pargas indemnity.

The general principles of law concerning indemnity is stated by Professor Gus M. Hodges in 26 Texas Law Review 150, as follows: “When there are two tortfeasors, either or both of whom are liable to an injured third person, but one of them has breached a duty which he owed both to his co-tortfeasor and to the injured third person, then the tortfeasor who, to his co-tort-feasor, is blameless, should be allowed indemnity.”

This same principle of law was well stated in the following cases: Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563 (1949), and Austin Road Company v. Evans, 499 S.W.2d 194 (Fort Worth Civ.App., 1973, ref. n. r. e.).

The City had immediate ample notice that the claimants were seriously injured, that the maintenance of the traffic signal device was probably a cause of the collision and injuries, and the names and addresses of all the parties involved. Therefore, the City had actual notice within the meaning of Section 16 of the Act.

We therefore hold that the plaintiffs, under these circumstances, were not required to file a claim with the City within 6 months describing the injury, the time, manner and place of the incident stating therein they intended to file a claim against the City.

The record further reflects that the defendant Pargas, after receiving a citation in the case, immediately filed an answer and sought indemnity or contribution from the City and described the negligence of the City in detail and immediately served the City with such pleadings.

By its third point, error is claimed in that Pargas never gave such notice within 6 months and that the City had no actual notice that Pargas would make a claim against the City.

It is undisputed in the record that Par-gas, Inc. gave actual and written official notice to the City within 30 days after a claim was made by the plaintiffs on Pargas, Inc., which was the first notice to Pargas, Inc., that it had a cause of action against the City.

Harris County v. Dowlearn, 489 S.W.2d 140, 146 (Houston Civ.App., 14th Dist., 1972, ref., n. r. e.), is a suit in which the County was being sued, the County asserted that the plaintiffs had no cause of action because they had not complied with Art. 1573, V.A.T.S., which generally provides that a County may not be sued on a claim unless the claim is first presented to the Commissioner’s Court for allowance, and its audit and allowance is refused or neglected and not allowed. That court held that the Texas Tort Claims Act “provides for the notice requirements, and sec. 16 of the Act is clearly intended to be an exclusive notice requirement for purposes of bringing suit under the Act. . . . Moreover, the Act contains a repealer clause which repeals all laws in conflict with Art. 6252-19 to the extent of such conflict, (sec. 20).”

It is our opinion that Section 20 of the Act makes ineffective and repeals all ordinances, city charter provisions and statutes in conflict therewith. We hold notice requirement of the Act is an exclusive notice requirement for the purposes of bringing suit under the Act. We hold plaintiffs and Pargas complied with the notice provision of the Act.

These points are overruled.

By its fourth point the City asserts that it had governmental immunity except in limited situations such as claims growing out of death and from injuries sustained and that Pargas had no right of indemnity under the Act since the theory of indemnification is not based on such a claim.

In Flores v. Norton & Ramsey Lines, Inc., 352 F.Supp. 150 (W.D.Texas, 1972) a suit arose as the result of a collision between two trucks. The defendant interpleaded the Texas Department of Public Safety as a third party defendant claiming that the collision was caused by the Texas Department of Public Safety because they had stopped the plaintiff on the highway at a license and weight inspection station and had failed to make proper provision for removing from the highway the truck they had stopped. There the court held that the Texas legislature had expressly waived sovereign immunity under the Texas Tort Claims Act and that the defendant had alleged a good cause of action for indemnity or contribution in the event that it was found negligent in the main cause of action. The court stated as follows: “Section 13 of the Texas Act states: ‘this Act shall be liberally construed to achieve the purposes hereof.’ Thus, any ambiguity in the Act ought to be construed in favor of the claimant.”

Where the Act waives governmental immunity and no exclusion or express provision limits this immunity, the general law of this State will apply to the litigants in the same manner that it would apply to individuals.

We hold the right of indemnity is available under the Act even though Pargas sustained no personal injuries. This point is overruled.

By its fifth point the City contends the traffic signals were legally installed pursuant to the City’s legislative function and its police power and it was protected by the principles of governmental immunity.

At the time the Sparkman case was tried the State had adopted the 1971 National Manual but it had not gone into effect. The traffic control system here involved did conform to that manual but was changed after June 1, 1972, so that it became a non-conforming traffic signal thereafter and was in violation of the National Manual which was adopted by the State Highway Commission. The accident involved in the Sparkman case occurred on April 14, 1972, the manual went into effect June 1, 1972. The accident here involved occurred on August 18, 1972, after said manual went into effect.

We specifically hold that the traffic signals were illegally installed and that Subsection 12 of Section 14 of the Act controls. Sparkman v. Maxwell, supra.

The City asserted additional error by its fifth point in that it claims that the City, because of its legislative function and police power, could install the light in any manner which it desired, therefore, it was a governmental function and the City enjoyed immunity. These points were foreclosed against the City in the Sparkman case.

By its eighth point the City asserts that the court erred in two respects: in that the court’s definition of notice was erroneous, and the refusal to give the City’s requested definition of “actual notice”; for the reason that the given definition omitted the concept that the claimants must give notice that they intended to assert a claim against the City. The requested definition contained this concept.

This point is overruled because of the principles of law decided in the Sparkman case and for the additional reason that this definition was approved in the case of Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286 (1951).

By its point nine the City asserts error by the court in excluding from evidence a City ordinance which authorized and provided for the operation of the traffic light.

The installation, operation, and maintenance of the traffic signal in question was in violation of state law and therefore the ordinance was ineffective because it was in conflict with state law. Harris County v. Dowlearn, supra, and Section 20 of the Act. Therefore, it was not error to refuse to admit such City ordinance in evidence. We overrule this point.

By its sixth point the City asserts the Court committed errors in permitting the witness McLeroy to interpret the meaning of the National Manual on Uniform Traffic Control Devices and the trial court commented on the weight of the evidence in that he referred to the witness as an expert.

The record reflects that the attorney for the City referred to such witness as an expert and thus admitted in the presence of the jury that the City recognized him as an expert.

This witness was regional traffic operations engineer for the Federal Highway Administration in Region 6, Fort Worth, Texas. He was a graduate engineer of Texas Tech. He had worked 17 years for cities in Texas in the traffic engineering departments. Part of his duties for the Federal government was to assist municipalities and help them solve traffic engineering problems. He served the cities as a consulting engineer in connection with their traffic engineering problems. He had authority to interpret the National Uniform Traffic Control Act described above. He testified without objection that the National Manual was in effect by reason of Texas law adopting same. He also testified without objection as to the interpretation of both the Act and Art. 6701d, V.A.T.S. (Uniform Act Regulating Traffic on Highways), as applied to the facts in this case. He further testified without objection the date the manual went into effect by authority of Texas law.

The record reflects the Court stated that he overruled the objection because this witness was an expert. The appellant objected as follows: “We take an exception to the court’s comment as to the — I don’t think the court intended to, but he is an expert within the — you mean he’s qualified as an expert.”

No motion for mistrial or motion was made to instruct the jury not to consider the remark made by the court. During the course of the trial appellant’s attorney, in referring to this witness, stated: “He’s (referring to opposing counsel) already qualified him as an expert in order to give an opinion on the facts.”

In several instances this witness, in response to a question, interpreted the state law and the manual, the witness giving his opinion, then appellant’s attorney objecting and the court sustaining the objection; but thereafter there was no motion requesting the court to strike the answer from the record and the jury not to consider it.

We hold the claimed error was waived. Ka-Hugh Enterprises, Inc. v. Fort Worth Pipe & Supply Company, 524 S.W.2d 418 (Fort Worth Civ.App., 1975, writ ref., n. r. e.).

It was stated in Battles v. Adams, 415 S.W.2d 479 (Austin Civ.App., 1967, ref., n. r. e.) that, “Since the objection to this testimony was made after its admission and no motion to strike having been made, the objection was waived and the testimony was before the court for all that it is worth.”

If error was committed it was not such an error as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rule 434, T.R.C.P.

We overrule this point.

By its seventh point the City contends error was committed because the trial court admitted into evidence on the issue of actual notice only a part of the police report, and for the additional reason that the court deleted from the police report a portion which contained an opinion by the police officer that the Pargas vehicle failed to yield the right-of-way and the additional point that no other factor was given in the report as causing the accident.

The opinion of a police officer who was not a witness to the accident as to the cause of the accident was hearsay. Flores v. Missouri-Kansas-Texas Railroad Company, 365 S.W.2d 379 (Dallas Civ.App., 1963, ref., n. r. e.). It was not error for the court to refuse to admit this portion of the police report.

It was not error under the facts in this case for the court to admit in evidence that portion of the police report showing the names of the parties involved, the dimensions of the streets which were measured by the investigating police officer, the point of impact as shown by the debris, the place where the vehicles came to rest, the fact that plaintiffs sustained serious injuries, that the Pargas vehicle sustained damages, and the City vehicle, occupied by an assistant warrant officer for the City, sustained damage when struck by the body of one of the plaintiffs when she was thrown through space by the force of the impact.

The police officer who made the investigation of the accident was a witness and testified to the same facts without objection. In addition thereto the court instructed the jury they could consider that portion of the police report admitted in evidence solely on the issue of whether the City had notice of the occurrence. This was a predicate also for material testimony admitted without objection that the coordinator for the traffic department for the City had seen this report and a copy had been filed in his office. If any error was committed it was not such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, T.R. C.P.

Appellee, Dorothy Holden Mathes, asserts by counterpoint that she is excused from compliance with the notice requirements because of her minority.

The record reflects that Dorothy Mathes was 19 years of age at time of the occurrence. She filed this suit on May 11, 1973, as a minor, through her father as next friend. She married the other plaintiff on May 26, 1973.

By Article 5923b, V.A.T.S., the age of majority was lower from 21 to 18 years óf age. This statute became effective August 27, 1973. Therefore, her disability of minority was removed on May 26, 1973, when she married.

She cites as authority the case of City of Lubbock v. Onley, 498 S.W.2d 429 (Amarillo Civ.App., 1973, ref., n. r. e., 506 S.W.2d 208, Tex.Sup., 1973. In the per curiam opinion the Supreme Court specifically approved the Court of Civil Appeals opinion in regards to the adequacy of the notice given to the City.) The Court of Civil Appeals, in passing upon this point stated: “The reason for excusing compliance upon proof of the plaintiff’s minority is that notice provisions presuppose the existence of a person capable of complying. Since the plaintiff was legally incapable of compliance, he was formally excused therefrom. To hold that a minor, though bringing suit while in minority, must still file a claim upon reaching age twenty-one, would require a useless or superfluous act.”

We hold that the notice provision of the Act was complied with as stated above and further hold that because of her minority Dorothy Mathes was excused from the giving of any notice concerning the occurrence prior to the time she filed suit; and was not required to give additional notice within six months after her disability of minority was removed by marriage.

Each of the appellant’s asserted errors have been carefully considered and each are severally overruled.

The judgment is affirmed.


author: WALTER, Justice.

text:
    Joe Ned LEWIS, Appellant, v. REPUBLIC NATIONAL BANK OF DALLAS, Appellee.
    No. 4817.
    Court of Civil Appeals of Texas, Eastland.
    Oct. 3, 1975.
    Rehearing Denied Oct. 31, 1975.

      John T. McCully, John T. McCully, Inc., Dallas, for appellant.
    Frank J. Betancourt, Gardere, Porter & DeHay, Dallas, for appellee.
   WALTER, Justice.

Joe Ned Lewis filed suit against Republic National Bank of Dallas under Article 8307c, Vernon’s Ann.Rev.Civ.Stat., for wrongful termination of his employment. The Bank’s motion for summary judgment was granted. Lewis has appealed.

While employed by the Bank, Lewis sustained an injury to his back and filed suit against Texas Employers’ Insurance Association, the Bank’s workmen’s compensation carrier. In his settlement, Lewis signed an agreement for judgment which contained in part the following:

“It is further agreed that upon the satisfaction of said judgment by the payment by Texas Employers’ Insurance Association of the principal amount thereof to the said Joe N. Lewis and his attorney, same shall be in full release of the said Texas Employers’ Insurance Association of and from any and all claims and demands, actions or causes of action now claimed by the plaintiff or to be claimed in the future against it on account of the injuries alleged in the pleadings herein, and also of and from any and all claims and demands whatsoever under the Texas Employers' Liability Act, or at common law, which the said plaintiff can, shall or may have against Republic National Bank of Dallas or against the said defendant by reason of any matter, cause or thing whatever prior to the date hereof or as to any future medical aid, hospital services, nursing, chiropractic services and medicines, whether alleged in said cause of action or not alleged therein.” (Emphasis added).

Article 8307c known as the Workman’s Compensation Law in part states:

“Section 1. No person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, instituted, or caused to be instituted, in good faith, any proceeding under the Texas Workmen’s Compensation Act, or has testified or is about to testify in any such proceeding.”

We overrule the Bank’s contention Lewis’ failure to plead ambiguity denies him the right to make such a complaint on appeal. The agreement of which Lewis complains was attached to the Bank’s motion for summary judgment. The rule is if the summary judgment proof shows the existence of fact issues, the summary judgment should be denied regardless of defects in the pleadings. Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233 (1956).

The Bank contends the term “Texas Employers’ Liability Act” as used in the release is synonymous and interchangeable with the term “Texas Workmen’s Compensation Act” and that both terms properly refer to Article 8307c. Lewis contends the agreement for judgment containing the term “Texas Employers’ Liability Act” refers to the Employers’ Liability Act and was, therefore, ambiguous and the summary judgment proof fails to establish the parties agreed to the meaning of the term.

In Lewis’ affidavit in opposition to the Bank’s motion, he stated:

“After reviewing the wordage contained in paragraph two as above quoted, my Attorney and I signed the agreement. It was not my intent nor did I understand that I was releasing the Republic National Bank from any action I might have for wrongful termination since this action is provided in the Workman’s Compensation Law. It was my clear understanding that I was releasing the Republic National Bank from any actions I had at Common Law and from any actions I might have had a result of any actions under the Employers’ Liability Act for anything such as any injuries I might claim as a result of actions of fellow employees or other matters outside of the Workman’s Compensation Law. I understood the wording of paragraph two to mean this particularly since paragraph four used the term ‘Workman’s Compensation Act of Texas’ in two separate instances.”

In Skelly Oil Company v. Archer, 163 Tex. 336, 356 S.W.2d 774 (1961), the Supreme Court said:

“We have concluded that the attachment of the rider makes the lease ambiguous. Not only is its meaning uncertain and doubtful, thus meeting the test of ambiguity announced in Neece v. A. A. A., Realty Company, 159 Tex. 403, 322 S.W.2d 597, our latest decision on the subject, but it is also subject to more than one reasonable meaning, unresolvable by rules of interpretation, thus meeting the stricter test of ambiguity laid down in Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154.”

Under appropriate summary judgment rules we hold the Bank failed to discharge its burden of establishing as a matter of law that there was no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970).

The judgment is reversed and the cause is remanded.