author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. John Thomas FERGUSON, Defendant-Appellant.
    No. KCD 30255.
    Missouri Court of Appeals, Western District.
    April 30, 1979.

      R. J. O’Hanlon, Lee, O’Hanlon & Brady, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Earl W. Brown, III, Special Asst. Atty. Gen., Kansas City, for plaintiff-respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   DIXON, Judge.

Defendant appeals his conviction of second degree murder. Defendant was tried under the provisions of the Second Offender Act, § 556.280 RSMo 1969, and, upon a jury finding of guilt, the trial judge imposed a sentence of thirty years.

A single issue is presented. The defendant asserts that the trial court erred in refusing defendant’s instruction on self-defense predicated upon a theory of “appearances.”

Defendant struck and killed the deceased with an iron pipe in the course of an altercation on the business premises where the defendant was employed. The deceased, in company with two of his daughters and three other persons, had been engaged in a daylong drinking bout. The party went to several taverns and ended up at a tavern across the road from the automobile agency where defendant was employed. One of the daughters of the deceased had purchased a motor vehicle there and had been having difficulty with it. The deceased walked across the road and spoke to the manager about when repairs would be undertaken. The manager answered, bét the deceased apparently did not hear the response. Defendant then spoke to the deceased, and the deceased told the defendant to “shut up because he wasn’t talking to him.” While this exchange occurred, the deceased’s vehicle was driven to the rear of the office by someone in the company of deceased. Besides the five persons in the deceased’s party, there were several other witnesses to the events. Because of the nature of the defendant’s claim of error, it will be necessary to set forth in some detail the accounts of the various witnesses, both substantively and sequentially.

Stating the chronology of events and their relationship to the place where the altercation occurred is difficult because the witnesses referred to an exhibit in placing the various events and the participants, and the exhibit has not been filed in this court. As best as may be gleaned from the descriptions of the witnesses, the business premises where the defendant was employed consisted of a front room, or showroom, which contained a small partitioned office; the balance of the front was open space with an opening to the showroom. A partition or semi-partition separated the showroom from the rear of the building which was utilized as a shop.

The witnesses, including the defendant, are all in agreement that the verbal altercation between the deceased and the defendant commenced at or near the office space in the front or showroom portion of the building. By one means or another, the two participants maneuvered to a position near the partition between the shop area and the showroom area where there was an opening in the wall or doorway, apparently of substantial size. As noted, the deceased was accompanied by his two daughters, Viola and Terry, as well as one Bob White, his wife, Candy White, and a person named Gary Pierce.

The testimony concerning the movements of the five persons in the company of the deceased is confusing, but it appears that when the deceased first entered the premises he was accompanied by his daughter, Terry, and Bob White. The other three in the party remained in the car. Terry, the deceased’s daughter, apparently left before the verbal altercation and told her sister to move the car to the rear of the building, the car having been parked in a no parking zone. When she returned, the defendant had obtained the pipe, and she saw him strike her father. She then ran to get a ball bat from the car, but her sister had already obtained the ball bat and was entering the premises. She took the keys to the car from her sister, and Bob White went to the vehicle to get a rifle which was in the trunk of the car. All of this occurred after the deceased was struck. Gary Pierce says he went in the building after the defendant had the pipe and saw the fatal blow struck, but did not see the rifle. Viola corroborated Terry’s testimony that she stayed outside, although she said four persons initially went into the building. Viola said Terry came out and told her that the defendant had struck her father.

When Viola entered the premises with the ball bat, Ferguson was almost to the front door carrying the pipe. Her claim is that Bob White came in with a gun after the defendant was struck and while she was striking at the defendant with the ball bat she was carrying. Bob White, on the other hand, contended that he had gone outside to look at a car and did not enter the premises until after the deceased was struck and was on the floor. He admits that he went to get the gun and says that he did not take the gun inside and did not load it. He denied making any threats against the defendant or taking the gun into the building. Candy White, his wife, entered the building while the defendant was striking the deceased, and after the deceased had fallen to the floor, she went to call an ambulance. She claims she did not see any rifle at the scene.

There were three witnesses who were not connected with the group accompanying the deceased. A man named George Pace, who was a customer at the automobile agency, saw the defendant and deceased arguing, and he saw the deceased after the blows had been struck with the pipe; but he did not see the actual striking by the defendant. He claimed that he did not see a man with a rifle either in the shop or aiming a rifle into the shop.

Harold Davis was another employee at the business; his testimony is that he was in the back part of the shop working on an automobile, and that the defendant retired from the showroom portion of the building, part of which Davis could see because of the wide opening in the partition. Davis said there was a group of people with the deceased and that he offered to help the defendant, it being obvious to him that an altercation was in progress. He said the defendant told him to stay out of it, and he did; but he observed the defendant pick up a “cheater” pipe or a length of pipe one inch in diameter and 16 to 18 inches long. At that point, according to the witness Davis, the people with the deceased had stopped in the opening separating the shop from the front. At that point, Ferguson invited the deceased to go out into the alley; there was some name calling and the defendant prodded the deceased in the stomach with the pipe. The deceased was holding his stomach at that point. The defendant and the deceased then moved out of this witness’ sight momentarily and then came back into view through the wide opening in the partition, and it appeared to the witness that the deceased and the man with him were going out the front door. As they started toward the front door, the deceased turned around and called the defendant some kind of a “punk.” At that time, the defendant swung the pipe and the deceased warded it off with his arm. After this blow was struck, the deceased was holding his arm; the defendant struck a second blow on the left side of the deceased’s head, and the deceased collapsed on the floor.

After that occurred, the witness Davis said there was a lot of noise at the back door; a young woman ran in with a ball bat, and there was another lady at the back door with a man arguing about the car keys. The woman outside the building threw the keys at the man, and the man went to the back of the car, opened the trunk, and came around the car into Davis’ view carrying a rifle. The witness Davis then went out and talked the man with the rifle into putting it back in the trunk. Davis said that the man with the rifle had pointed it in the shop, but it is not clear from his testimony as to whether any part of the rifle entered the building or whether it was pointed through an open door. In any event, White was not in the shop with the rifle and at no time prior to the time the defendant struck the deceased was the rifle in sight, nor was the ball bat. All of those events occurred after the defendant had struck the deceased. Another young man named Pinion, who was employed at the agency, testified to virtually the same events but stated that the time of the incident with the rifle and bat and the striking of the defendant by the deceased was almost simultaneous.

The defendant’s version of the events pretty well follows that of the other witnesses, the defendant saying that he heard a statement about getting a gun and hearing a man keep making the statement, “I’m going to get him.” “I’m going to get him.” But his testimony was that the ball bat incident occurred after he had struck the deceased the fatal blow and after he heard the deceased say, “Go get the gun.” The defendant denies ever seeing the gun.

There is no question from all the evidence that the deceased was a large man, that he had been drinking heavily prior to the events which occurred. There was ample evidence that the deceased had a reputation for violent behavior. Premised upon this factual background, the defendant asserts that the court erred in refusing the defendant’s instruction No. B. The court gave an instruction which was MAI-CR 2.40; this latter paragraph is the paragraph in the MAI instruction relating the doctrine of appearances to the doctrine of self-defense. The defendant concedes that the doctrine of appearances as delineated in State v. Cooksey, 499 S.W.2d 485, 489 (Mo.1973); State v. Minnis, 486 S.W.2d 280, 283-84 (Mo.1972); State v. Demaree, 362 S.W.2d 500, 503 (Mo. banc 1962), requires the defendant to have been subject to appearances, either verbal or visual, which subsequently are demonstrated to be false. In his argument, the defendant emphasizes State v. Lowe, 260 S.W.2d 729 (Mo.1953), which the defendant claims holds that an attack by some other person or persons is a special circumstance warranting the submission of an instruction on appearances. Before undertaking to discuss these authorities in connection with a claim of error posed by the defendant and the argument supporting it, an examination of the ground of error as it was alleged in the motion for a new trial demonstrates that the defendant raised the issue by asserting under five separate lettered paragraphs (a) the action of the deceased in advancing upon the defendant; (b) the defendant’s awareness of the deceased’s reputation for violence; (c) the defendant’s fear of immediate death or bodily injury; (d) the threats made by the deceased to the defendant; (e) and the size of the deceased.

In the brief, defendant improperly expands the grounds raised in the motion for new trial by arguing that the threats of violence by others and the presence of the rifle and the ball bat were also appearances to be considered in the determination of defendant’s claim of error. It is not necessary to rest the decision on that procedural defect.

Giving the defendant the benefit of the doubt on the procedural issue, the merits of the contention will be addressed. Based upon the foregoing statement of the evidence, it is obvious that the conflict in the evidence relates to the time of the occurrences, not to the tact of the occurrences. Depending upon which of the witnesses were believed by the jury, the defendant was either facing the deceased alone or facing a group armed with a ball bat and a rifle. The “appearances” may have been different depending upon which version of the events is considered as fact, but no witness testified to any fact which was later demonstrated to have created a false appearance. The evidence concerning the loading of the rifle is, at best, equivocal and, at worst, conflicting, but the defendant does not raise an issue either in the motion for new trial or in the brief relating to the rifle being loaded or unloaded.

The appearance doctrine, as it is enunciated in the cited cases, is a special rule designed to afford a right of self-defense to the defendant based upon which “appears” to the defendant to a situation which justifies the use of force in self-defense. While it may be true in some factual situations that these “appearances” need not be supplied by the defendant’s testimony, the doctrine does not extend to require the instruction on appearances when there is nothing to indicate that the apparent situation was misleading to the defendant.

Looking to the factual situation in the instant case, whichever set of facts is believed with respect to the time when the events involving the deceased’s companions occurred, there was no false impression from the situation. There is no claim that the danger of harm to the defendant did not in fact exist. Viola testified she did attack him with the ball bat, albeit after the deceased had fallen. Bob White admits obtaining the rifle. The defendant’s difficulty is that the jury apparently believed the testimony that the deceased was in retreat under the prodding of the defendant and that the final and deadly blow was not a necessary exertion of force.

The defendant’s reliance upon State v. Lowe, supra, is misplaced. In Lowe, the defendant testified that shots were fired at him from inside a building prior to the assault upon the deceased, and according to the defendant’s testimony, he was confronted with a simultaneous attack by several persons before he shot the deceased. This claim was apparently a fact which was controverted. In the instant case, the defendant’s direct testimony is that the attack by Viola with the ball bat occurred after he struck the deceased. The cross-examination of defendant reveals that he never saw the gun prior to the fatal attack. Giving the defendant the full benefit of his own testimony, no fact or circumstance was in fact false or misleading. Lowe does not control because there is no claim defendant was misled or deceived by facts which gave the appearance of a danger which did not exist. There is simply nothing in this record to require the submission of paragraph 5 of MAI-CR 2.40, and the trial court did not err in refusing defendant’s instruction B. The judgment and conviction are affirmed.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Tommy L. HUNT, Appellant.
    No. KCD 29519.
    Missouri Court of Appeals, Western District.
    May 23, 1979.
   MEMORANDUM AND ORDER

There is now pending before this Court appellant’s motion to “Redocket, Rebrief and Reargue” the above captioned appeal, which motion shall be treated as one to recall our mandate and reinstate the appeal.

The appellant herein prosecuted his appeal to this Court from a conviction on the charge of kidnapping and sodomy, which conviction and judgment was affirmed by this Court on July 31,1978 and our mandate issued on October 11, 1978, State v. Hunt, 570 S.W.2d 777 (Mo.App.1978). In so doing, this Court followed the then binding authority of State v. Duren, 556 S.W.2d 11 (Mo. banc 1977) which ruled that the Missouri jury selection laws as they pertained to the automatic exclusion of women from jury service upon request to be constitutional. Upon certiorari in the Duren case to the Supreme Court of the United States, that Court held such laws to be unconstitutional and void. Duren v. State of Missouri on writ of certiorari to the Supreme Court of Missouri, No. 77-6067, decided January 9, 1979, 439 U.S. -, 99 S.Ct. 664, 58 L.Ed.2d 579.

On April 16, 1979, the Supreme Court of the United States granted a writ of certio-rari to the appellant herein and thereafter that proceeding in the Supreme Court of the United States was numbered 78-5995, entitled L. Hunt v. State of Missouri, - U.S. -, 99 S.Ct. 1987, 60 L.Ed.2d 370.

This Court has received from the Supreme Court of the United States its mandate dated May 15, 1979 ordering that the judgment of this Court in this case be vacated and remanding the same for reconsideration by this Court in the light of Duren v. Missouri, supra, and directing this Court to take such proceedings herein in conformity with such opinion in Duren and as will accord with right and justice and the Constitution and Laws of the United States.

It appears from the record in this case that the defendant (appellant herein) Tommy L. Hunt raised the constitutional question as to the jury selection laws in Missouri pertaining to women, decided in Duren v. Missouri, supra, by moving to quash the jury panel in his criminal trial at the earliest possible time and preserved the question throughout the criminal trial and appeal to this Court. It further appears that said motion to quash the jury panel was supported by written stipulation with the State and supporting exhibits attached thereto.

IT IS THEREFORE ORDERED, CONSIDERED AND ADJUDGED that this Court’s decision herein of July 31, 1978 and our mandate herein of October 11, 1978 be and the same are hereby withdrawn and the cause is remanded to the Circuit Court of Jackson County, Missouri.

IT IS FURTHER ORDERED that the defendant, Tommy L. Hunt, be transported from his present place of confinement by the Department of Corrections of the State of Missouri to the Jackson County, Missouri jail at Kansas City, Missouri and be placed in the custody of the Department of Corrections of Jackson County, Missouri pending further proceedings in the court below.


text:
    STATE of Missouri, Respondent, v. Lavance JONES, Appellant.
    No. KCD 29581.
    Missouri Court of Appeals, Western District.
    May 24, 1979.
   MEMORANDUM AND ORDER

There is now pending before this Court appellant’s motion to “Redocket, Rebrief and Reargue” the above captioned appeal, which motion shall be treated as one to recall our mandate and reinstate the appeal.

The appellant herein prosecuted his appeal to this Court from a conviction and sentence on the charges of Murder, Second Degree and Robbery, First Degree, which conviction and judgment was affirmed by this Court on August 28,1978 and our mandate issued on November 13, 1978, State v. Jones, 571 S.W.2d 741 (Mo.App.1978). In so doing, this Court followed the then binding authority of State v. Duren, 556 S.W.2d 11 (Mo. banc 1977) which ruled that the Missouri jury selection laws as they pertained to the automatic exclusion of women from jury service upon request to be constitutional. Upon certiorari in the Duren case to the Supreme Court of the United States, that Court held such laws to be unconstitutional and void. Billy Duren v. State of Missouri on writ of certiorari to the Supreme Court of Missouri, No. 77-6067, decided January 9, 1979, 439 U.S. -, 99 S.Ct. 664, 58 L.Ed.2d 579.

On April 16, 1979, the Supreme Court of the United States granted a writ of certio-rari to the appellant herein and thereafter that proceeding in the Supreme Court of the United States was numbered 78-6077, entitled Jones v. State of Missouri, - U.S. -, 99 S.Ct. 1987, 60 L.Ed.2d 37.

This Court has received from the Supreme Court of the United States its mandate dated May 15, 1979 ordering that the judgment of this Court in this case be vacated and remanding the same for reconsideration by this Court in the light of Duren v. Missouri, supra, and directing this Court to take such proceedings herein in conformity with such opinion in Duren and as will accord with right and justice and the Constitution and Laws of the United States.

It appears from the record in this case that the defendant (appellant herein) La-vance Jones raised the constitutional question as to the jury selection laws in Missouri pertaining to women, decided in Duren v. Missouri, supra, by moving to quash the jury panel in his criminal trial at the earliest possible time and preserved the question through the criminal trial and appeal to this Court. It further appears that said motion to quash the jury panel was supported by written stipulation with the State and supporting exhibits attached thereto.

IT IS THEREFORE ORDERED, CONSIDERED AND ADJUDGED that this Court’s decision herein of August 28, 1978 and our mandate herein of November 13, 1978 be and the same are hereby withdrawn and the cause is remanded to the Circuit Court of Jackson County, Missouri.

IT IS FURTHER ORDERED that the defendant, Lavance Jones, be transported from his present place of confinement by the Department of Corrections of the State of Missouri to the Jackson County, Missouri jail at Kansas City, Missouri and be placed in the custody of the Department of Corrections of Jackson County, Missouri pending further proceedings in the court below.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Leon NEVELS, Defendant-Appellant.
    No. KCD 29569.
    Missouri Court of Appeals, Western District.
    June 1, 1979.
   MEMORANDUM AND ORDER

There is now pending in this Court defendant’s motion to recall our mandate herein.

The appellant appealed from convictions for second degree murder and for assault with malice, which convictions resulted in separate trials conducted in March of 1977 and May of 1977. These judgments and convictions were affirmed by this Court on August 28, 1978 and our mandate was issued November 13, 1978. State v. Nevels, 571 S.W.2d 736 (Mo.App.1978). In so doing, this Court followed the then binding authority of State v. Duren, 556 S.W.2d 11 (Mo. banc 1977) which ruled the Missouri jury selection laws constitutional as they pertained to the automatic exclusion of women from jury service upon request. Upon certiorari in the Duren case to the Supreme Court of the United States, that Court held such laws to be unconstitutional and void. Billy Duren v. State of Missouri on writ of certiorari to the Supreme Court of Missouri, No. 77-6067, decided January 9, 1979, 439 U.S. -, 99 S.Ct. 664, 58 L.Ed.2d 579.

On January 15, 1979, the Supreme Court of the United States held that its unconstitutionality of the pertinent Missouri statutes as to automatic exemption of women to serve upon juries was to be applied retroactively to the date of its decision in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Lee v. Missouri, - U.S. -, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979).

In accordance with the authority of Du-ren v. State, supra, the Missouri Supreme Court and this Court have set aside and ordered new trials in numerous cases where the jury was clouded by the unconstitutional methods employed in jury selection as it pertained to the service of women. State v. Hardy, 578 S.W.2d 361 (Mo.App.1979); State v. Brown, 577 S.W.2d 163 (Mo.App.1979); State v. Arrington, No. 59,669 (Mo. banc March 15, 1979); State v. Madison, No. KCD 29,639 (February 26, 1979); State v. Heavey, 582 S.W.2d 284 (Mo.App.1979); State v. Tate, 582 S.W.2d 329 (Mo.App. 1979); State v. Coleman, 582 S.W.2d 335 (Mo.App.1979); State v. Buford, 582 S.W. 2d 298 (Mo.App.1979); State v. Hawkins, 582 S.W.2d 333 (Mo.App.1979); State v. Wickizer, No. KCD 30,033; State v. Peters, 582 S.W.2d 323 (Mo.App.1979); State v. McReynolds, 581 S.W.2d 465 (Mo.App.1979); State v. Hunt, 581 S.W.2d 136, under mandate from the Supreme Court of the United States (Mo.App.1979); and State v. Jones, 581 S.W.2d 137, under mandate from the Supreme Court of the United States (Mo.App.1979).

It appears from the record in this case that the defendant herein, Leon Nevels, raised the constitutional question as to the jury selection laws in Missouri pertaining to women, decided in Duren v. State of Missouri, supra, by moving to quash the jury panel in his first trial at the earliest possible time, which motion was supported by written and oral stipulations with the State and supporting exhibits attached thereto. Such motion, stipulations and exhibits were again filed in the second trial, and in each trial after adverse rulings thereupon the point was preserved throughout and upon the appeal to this Court.

This stipulation and its constitutional impact under Duren has heretofore been thoroughly discussed in the previous opinions of this Court above cited, and further exposition here would be of no value. After review of this record the conclusion is reached that it brings this case squarely within the constitutional prohibitions of Du-ren and the opinions above cited.

IT IS THEREFORE ORDERED that the decision of this Court of August 28, 1978, and the mandate issued pursuant thereto on November 13, 1978, are hereby withdrawn and for naught held and this cause is remanded to the Circuit Court of Jackson County, Missouri.

IT IS FURTHER ORDERED that the defendant, Leon Nevels, be transported from his present place of confinement by the Department of Corrections of the State of Missouri to the Jackson County jail at Kansas City, Missouri and be placed in the custody of the Department of Corrections of Jackson County, Missouri pending further proceedings in the court below.


author: COOPER, Justice.

text:
    BROWN SHOE COMPANY, Appellant, v. Robbie Inez PIPES, Appellee.
    Supreme Court of Tennessee.
    May 8, 1979.
    W. W. Lackey, Lackey & Lackey, Savannah, for appellant.
    T. Robert Hill, Hill & Sanders, Jackson, for appellee.
   OPINION

COOPER, Justice.

Brown Shoe Company has appealed from the decree of the Chancery Court of Hardin County awarding appellee, Robbie Inez Pipes, temporary total and permanent partial disability benefits under the workmen’s compensation act. Appellant insists there is no evidence to support the chancellor’s finding of permanent disability or the causal relationship of any disability to the industrial accident. Appellant also questions the award of temporary total disability benefits.

Mrs. Pipes was employed by appellant as a “cover stitcher.” On April 22, 1976, while performing the duties assigned her by appellant, Mrs. Pipes slipped and fell. After the fall, Mrs. Pipes had pain in the low back area and in her left leg. Mrs. Pipes’ family doctor admitted her to the hospital in Savannah where she was placed in traction for a period of approximately two weeks. The low back pain persisted and Mrs. Pipes was referred to Dr. Joseph P. Rowland, a neurosurgeon, for examination and treatment. Dr. Rowland hospitalized appellee from June 29th to July 8, 1976, and saw her at regular intervals thereafter until September 28, 1976, when he recommended that Mrs. Pipes undergo a myelogram to localize her “problem.” Mrs. Pipes refused the test at that time, but did have the test in May, 1977. The myelogram disclosed one and possibly two ruptured in-tervertebral discs. Mrs. Pipes refused to undergo surgery to correct the disc problem.

Dr. Rowland testified that without surgery, Mrs. Pipes would continue to have back pain. He was unwilling, however, to give her a disability rating absent some evidence of neurological involvement. Dr. Robert Barnett, an examining physician, expressed the opinion that Mrs. Pipes had a permanent anatomical disability of thirty-five percent to the body as a whole.

Except in the most obvious of cases, medical causation and the permanency of any injury must be established by expert medical testimony. Floyd v. Tennessee Dickel Company, 225 Tenn. 65, 463 S.W.2d 684 (1971). But once they are established the chancellor is not required to accept the doctors’ opinions of the extent of the workman’s disability, but is entitled to determine the extent of disability from all the evidence, both expert and nonexpert. A. C. Lawrence Leather Company v. Loveday, 224 Tenn. 317, 455 S.W.2d 141 (1971). In doing so, the chancellor considers many pertinent factors, including job skills, education, training, duration of disability, and job opportunities for the disabled, in addition to the anatomical disability testified to by medical experts. See Federated Mutual Implement & Hardware Ins. Co. v. Cameron, 220 Tenn. 636, 422 S.W.2d 427 (1967).

Medical causation and permanency of injury were established by medical testimony in this case. A fair reading of Dr. Rowland’s testimony establishes that Mrs. Pipes has at least one ruptured intervertebral disc and that it resulted from her fall on April 22, 1976. Dr. Rowland also testified that Mrs. Pipes’ physical condition will not improve unless and until she has back surgery. Dr. Barnett was willing to and did rate Mrs. Pipes’ anatomical disability from the back injury. Both doctors testified that Mrs. Pipes’ injury would limit her in lifting, bending, stooping, and twisting, all activities and movements required of a person performing manual tasks. There is also evidence that Mrs. Pipes has had little education and that her training and work experience are limited to manual labor.

On considering the medical evidence and other factors having a bearing on the issue of disability the chancellor concluded that appellee had a permanent partial disability of sixty-five percent to the body as a whole. In our opinion this finding is supported by material evidence.

The chancellor also awarded Mrs. Pipes temporary total disability benefits from the date of her injury to May 27,1977, “which is the date the results of the myelo-gram were obtained and surgery was refused by Mrs. Pipes.” Appellant insists the temporary total disability benefits should terminate on September 28, 1976.

Redmond v. McMinn County, 209 Tenn. 463, 354 S.W.2d 435 (1962), contains an extensive analysis of temporary total disability. After noting that our statutes classify compensable disabilities into four distinct classes, temporary total disability, temporary partial disability, permanent partial disability, and permanent total disability, this court said:

Under statutes like ours, “temporary total disability” refers to the injured employee’s condition while disabled to work by his injury and until he recovers as far as the nature of his injury permits; and it is separate and distinct from any of the other four kinds of disability.

Temporary total disability benefits then are terminated either by the ability of the employee to return to work or the attainment of maximum recovery from his injury. Simpson v. Satterfield, Tenn., 564 S.W.2d 953 (1978); Gluck Bros. Inc. v. Coffey, 222 Tenn. 6, 431 S.W.2d 756 (1968).

Mrs. Pipes had attained maximum recovery from her injury by September 28, 1976, and her disability thereafter was less than total. According to Dr. Rowland, her physical condition has not changed since September, 1976, and will not change unless and until she undergoes back surgery. While it is true that Dr. Rowland’s diagnosis of disc involvement was not definitely confirmed and definitely located until the myelogram was performed in May, 1977, the myelo-gram had no effect on appellee’s physical condition. It was merely a diagnostic aide, not a form of treatment.

Under the evidence in this case and the rule announced in the above cases whereby the temporary total disability period is cut off when the workman has reached his maximum recovery, at which point either permanent total or permanent partial disability commences, we must hold that the chancellor erred in awarding temporary total disability benefits through May 27,1977. The cut-off date for these benefits should have been September 28, 1976.

Appellant also questions the chancellor’s action in admitting in evidence the testimony of a vocational examiner as to the results of tests he conducted with appel-lee and his conclusions from the tests. The tests were designed to determine the mental acuity and physical dexterity of appel-lee, with a view of placing her in the job market. We see no error in the admission of the testimony. It is relevant to the issue of industrial disability and is an additional way to bring home to the trier of fact the impact of the injury on the earning capacity of the appellee.

By motion appellee has asked this court to assess damages against appellant on the ground the appeal was frivolous and was taken solely for the purpose of delay and harassment of appellee, T.C.A. § 27-124. We see no merit in the motion. The controversy over the award of temporary total disability benefits, in our opinion, justified the appeal.

The decree of the chancellor is modified so as to award Mrs. Pipes temporary total disability benefits from the date of her injury to September 28, 1976, and for the three days she was hospitalized for the my-elogram examination. In all other respects, the decree is affirmed.

The costs of the appeal are taxed against Brown Shoe Company.

HENRY, C. J., and PONES, BROCK and HARBISON, JJ., concur.


author: DROWOTA, Judge.

text:
    COMMERCE UNION BANK, Plaintiff-Appellee, v. Gerald DAVIS and Clarence Trulson, Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    Dec. 1, 1978.
    Certiorari Denied by Supreme Court May 7, 1979.

      Herman 0. Loewenstein, Nashville, Tenn., Robert J. Warner, Jr., and William W. Earthman, III, Dearborn & Ewing, Nashville, Tenn., for plaintiff-appellee.
    Ronald B. Buchanan, Madison, Tenn., for defendant-appellant Gerald Davis.
   OPINION

DROWOTA, Judge.

This is a suit by Commerce Union Bank for a deficiency following the repossession and sale of an airplane pledged as collateral for a loan. The Chancellor awarded judgment to the Bank in the amount of $12,-965.41, and defendant Davis appeals, alleging that the Chancellor erred in failing to find Davis an accommodation party released from liability under T.C.A. § 47-3-606. Defendant Trulson, who did not answer or defend below, is not a party to this appeal.

On January 6, 1975, Gerald Davis executed a note payable to the Bank in the amount of $30,195.60. He also granted the Bank a security interest in his Cessna 337A airplane as collateral for the indebtedness. On January 20, 1976, Davis conveyed his interest in the plane to Clarence T. Trulson. In consideration for the Bank’s approval of the transfer, Davis signed a “transfer of equity” agreement wherein he agreed to remain liable on his January 6, 1975, note. Trulson also agreed to be jointly and severally liable with Davis for the remaining balance of $23,965.41. In addition, Trulson executed a security agreement pledging the plane to the Bank as collateral. From the time of the transfer until the date of the suit, however, Trulson made no payments on the note. The Bank gave no notice to Davis of Trulson’s defaults on these installments until January 10, 1977, when the Bank filed suit. By the time suit was filed, Trulson had a negative net worth.

The plane was repossessed and sold, and the Chancellor awarded a judgment for the deficiency jointly and severally against Davis and Trulson.

Appellant asserts that the Chancellor’s decision was in error because (a) the transfer of equity agreement and the Bank’s subsequent conduct “recast” his note to that of an accommodation maker, and (b) the Bank extended the time of payment on the note without Davis’s approval, suspended its right of enforcement against Trulson, and permitted Trulson to waste his assets so as to destroy Davis’s right of subrogation, thereby releasing Davis from liability by virtue of T.C.A. § 47-3-606. We do not find appellant’s arguments persuasive, and must affirm the Chancellor’s decision.

T.C.A. § 47-3-415(1) defines an “accommodation party” as “one who signs [an] instrument in any capacity for the purpose of lending his name to another party to it. . . .” [Emphasis added.] The essential test of an accommodation party’s status, then, is the purpose for which he signed the instrument. While an accommodation purpose may be determined by ascertaining a party’s subjective intent, a purpose other than accommodation may be inferred by the receipt of any benefit by the party claiming accommodation status, since the “receipt of proceeds from the instrument or other direct benefit” is “generally inconsistent with accommodation status . .” J. White & R. Summers, Uniform Commercial Code 431 (1972). For decisions in other jurisdictions based on the “benefit” test, see Reigler v. Reigler, 244 Ark. 483, 426 S.W.2d 789 (1968); MacArthur v. Cannon, 4 Conn.Cir. 208, 229 A.2d 372 (1967); J. White & R. Summers, supra, at 431 n. 111. Accordingly, the receipt of benefits raises a presumption that a party’s purpose is other than mere accommodation, and any person claiming such status must carry the burden of proof.

The appellant has failed to carry this burden. It is clear that the appellant received several benefits from the transfer of the aircraft to Trulson, including a favorable restructuring of his debt to the Bank and the elimination of the cost of maintaining a disabled plane. Indeed, the facts surrounding the transfer indicate that the appellant’s motive was not to lend his name to Trulson in order that Trulson’s note might be acceptable to the Bank, but to acquire a contract right from Trulson that Trulson would assume appellant’s responsibility for making payments on appellant’s note. Moreover, it must be observed that appellant’s note of January 6, 1975, is the only note involved in the transaction; no cancellation of appellant’s liability occurred at the time of the conveyance, nor was a new note executed by Trulson upon which appellant could have signed as accommodation comaker.

Appellant has ignored the “purpose” test outlined by the Code, and has instead relied upon two indices of accommodation status: the Bank’s looking only to Trulson for payment of the note and his right of reimbursement against Trulson. While this in and of itself should be fatal to appellant’s cause, it must be noted that even were this Court to accept appellant’s arguments as the proper test of accommodation status, appellant would still not prevail. First, his right of reimbursement from Trulson derives not from the rights of an accommodation party under section 47-3-415(5), but from a contract right for payment for the aircraft conveyed. Second, the Bank, as holder of the appellant’s note, was under no obligation to make presentment to appellant upon Trulson’s default or to provide appellant any notice of dishonor. T.C.A. §§ 47-3-501, 504(3)(a). As comment 3 to section 47-3-504 states, “[t]he holder is entitled to expect that any one of the named parties will pay or accept, and should not be required to go to the trouble and expense of making separate presentment to a number of them.”

Appellant has asserted that even if he were not an accommodation maker, the “surety” defenses of section 47-3-606 would nevertheless be available to him as a comaker, since that code section does not expressly limit its scope to sureties. This, however, is not the law in this State. In Commerce Union Bank v. May, 503 S.W.2d 112, 116 (Tenn.1973), our Supreme Court stated that “the phrase, ‘any party to the instrument,’ is used in [section 47-3-606] to embrace parties to the instrument in addition to drawers and endorsers who are in the position of a known surety.” [Emphasis in original.] Thus, the defenses of that section are not available to the appellant, and further consideration of his arguments in that regard is unnecessary.

For the reasons stated herein, the decision of the Chancellor is affirmed.

Affirmed.

TODD and LEWIS, JJ., concur.


author: DUNCAN, Judge. DUNCAN, Judge. DWYER, Judge,

text:
    Lula Mae REED, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 26, 1978.
    On Petition to Rehear Jan. 4, 1979.
    Certiorari Denied by Supreme Court April 9, 1979.

      Edward T. Thompson, Public Defender, Charles E. Baucum, Asst. Public Defender, Memphis, for appellant.
    William M. Leech, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Hugh W. Stanton, Jr., Dist. Atty. Gen., James R. Garts, Jr., Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

DUNCAN, Judge.

In the first phase of a bifurcated proceeding, the appellant-defendant, Lula Mae Reed, was convicted in the Shelby County Criminal Court of shoplifting. In the second phase, the jury found her to be guilty of shoplifting, as a third offender, and imposed as enhanced punishment a penitentiary sentence of not less than one year nor more than two and one-half years.

In this appeal, the defendant complains about the admission into evidence of an eight-track stereo tape, the alleged insufficiency of the evidence, and the attorney general’s argument. We find merit to the defendant’s complaint about the proof in this case insofar as it pertains to that part of the indictment which charged her with having been previously convicted of shoplifting offenses.

This prosecution arose out of the taking by the defendant of an eight-track stereo tape from a Kroger store. The evidence clearly shows that the defendant is guilty of the present offense of shoplifting, and she does not contest the sufficiency of the evidence regarding the present offense.

The defendant’s first assignment of error concerns the introduction into evidence of the stereo tape, and alleges that there was a faulty chain of custody. David Jones, co-manager of the Kroger Store, brought the tape to the trial and testified that he had kept the tape in his desk drawer from the date of the incident until he brought it to court. He identified the tape as the one stolen by the defendant. There was no defect in the chain of custody. Also, with the evidence showing that the tape was not in possession of or under the control of the State’s attorney or any law enforcement officer, the defendant was not entitled to the benefit of the discovery provisions of T.C.A. § 40-2044. The tape was properly admitted into evidence.

Next, the defendant argues that the trial court should have directed a verdict of not guilty with respect to the second part of the indictment, insisting that the proof was insufficient to show her guilt of the prior shoplifting offenses alleged, and that there were variances between the indictment allegations and the proof. We find merit to this contention.

The second part of the indictment alleged that at the time of the current offense (May 8, 1977), the defendant had been previously convicted in the Shelby County Criminal Court of three shoplifting offenses, to-wit:

We find that the proof in this case is totally lacking to establish these prior convictions as alleged in the indictment. For some reason not apparent in the record, the State did not offer to prove these alleged prior convictions by introducing the minutes of the court. Rather, the State embarked on a protracted and confusing course seeking to establish its case by having a deputy clerk of the court to testify from information contained on or in the court’s “yellow jackets” concerning these prior cases.

The State filed as exhibits copies of the entries made on these jackets in an attempt to prove the alleged prior convictions. We find them woefully inadequate for the purposes intended. For example, the jacket entry concerning the first alleged prior offense (Indictment No. 11932) shows no judgment of conviction. There is a handwritten entry, apparently made by the foreman of the jury stating:

“We the jury find Lula Mae Reed guilty of shoplifting as conformed with the indictment and fix her punishment at $50.00 fine.”

There is nothing signed or approved by the trial judge and no indication that the trial judge ever approved or entered any judgment on this jury verdict. Further, the indictment had alleged that this former conviction had occurred on March 29, 1969. There is no date showing when the jury verdict was entered. According to the deputy clerk’s testimony, he could not determine from the jacket the date of the disposition of this offense but stated that the last court appearance marked on the jacket was March 28, 1969.

Regarding the second alleged prior offense (Indictment No. B-27672), the State attempted a similar approach to prove that conviction. There is an entry on that jacket, ostensibly signed by the trial judge, as follows:

“As to Lula Mae Reed, plea of guilty to shoplifting, as charged in the indictment, the court finds the defendant guilty and fix her punishment at confinement for thirty (30) days in the Shelby County Jail.”

This entry is dated June 17, 1971, and the jacket indicates that the proceedings occurred in Division I of the court. The present indictment alleges that this prior conviction occurred on July 6, 1971, in Division III of the court.

Because of these variances between the indictment allegations and the proof, the trial judge did not submit this alleged prior conviction to the jury.

Regarding the third and last alleged prior conviction (Indictment No. B-37701), the jacket contains the following entry:

“On a plea of guilty by the defendant to shoplifting as charged in the indictment, punishment is fixed at confinement for four (4) months in the Shelby County Jail.”

The name “William H. Williams” is written under this entry, which we assume is the trial judge’s signature. Even if it is his signature, this entry cannot be afforded the dignity of a final judgment. Moreover, this entry also carries with it no date of disposition. The State attempts to establish this conviction date as December 7, 1973, because that is the last date in order that appears elsewhere on the jacket. Even if this 1973 date could be accepted, we hasten to point out that the indictment alleged that this third prior conviction had occurred on December 7, 1976, three years later.

The State attempted to bolster its case by introducing copies of the original indictments, which listed the dates of the occurrences of the alleged prior offenses. But these indictments cannot be used in any manner to show the dates and final judgments of the alleged prior convictions. Further, they cannot serve as a vehicle to cure the variances that exist between the allegations in the current indictment and the proof as introduced.

Further, the testimony of Sgt. Jerry McElrath, fingerprint expert for the Memphis Police Department, cannot aid the State’s case here.

In an effort to establish the defendant’s identity, the State offered Sgt. McEl-rath and his records to show that this defendant had been arrested for shoplifting on certain dates, ostensibly the same dates as those alleged in the original indictments concerning the prior offenses. This officer’s testimony is in the same posture as the original indictments in the prior cases; neither his testimony nor the indictments can properly or validly establish any dates of convictions, or that final judgments were rendered in the cases in question.

The trial court recognized that the State’s proof left much to be desired. At one point, the court stated:

“Let me say this. I don’t know of any way that you can prove officially what happened in a criminal court other than through the minutes of that court.”

The district attorney general, conceding that, “there are some variances” and “I don’t understand how someone could have drafted this and come up with variances like this,” nevertheless argued that the variances were mere surplusage. The State, in its brief, refers to the errors as merely “technical” ones and argues that the proof is sufficient to show these prior convictions.

We disagree with the contentions made by the State. The defendant, among other things, is entitled to be apprised of the accurate dates of the prior convictions which the State intends to rely on for enhanced punishment purposes. Also, the State is obligated to prove that there was a final conviction for each of these prior offenses. These things were not done in this case. We sustain this assignment.

In her last assignment, the defendant says that the attorney general wrongfully argued to the jury that this was the type of case where they could “do something to show the public in general, and to show — The court sustained the defendant’s objection to this line of argument, and we hold that this innocuous comment was harmless.

For the reasons stated herein, we vacate that portion of the court’s judgment finding the defendant to be a third offender of the shoplifting laws, and the enhanced punishment set by the court for the defendant is hereby set aside. We dismiss that portion of the indictment. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

We find that the evidence of the defendant’s guilt of the present offense of shoplifting is conclusive. Therefore, we affirm her conviction for the present offense and remand this portion of the case to the trial court for a punishment trial. See Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738 (1956).

DWYER and BYERS, JJ., concur.

OPINION ON PETITION TO REHEAR

DUNCAN, Judge.

Our opinion in this case was filed on October 26,1978. The State filed a petition to rehear on Monday, November 13, 1978. Under the provisions of T.C.A. § 16-451, the State had 15 days in which to file its petition. That period would ordinarily have expired on Friday, November 10. However, November 10 was a legal holiday, and must be excluded from the time formula set forth in T.C.A. § 1-302. Likewise, because of the provisions of that statute, the succeeding Saturday and Sunday must also be excluded. By following the computation formula set forth in the statute cited, Monday, November 13, was the 15th day. This petition was filed on that day; thus the appellant’s insistance that the petition was not timely filed is not meritorious.

In its petition to rehear, the State asks us to reconsider the part of our opinion in which we vacated that portion of the trial court’s judgment which found the appellant to be a third offender of the shoplifting laws. In our original opinion, we dismissed that portion of the indictment which had charged her with being a third offender, and cited as authority for our ruling the case of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). It was our opinion then, and still is, that Burks would preclude a retrial on that portion of the indictment.

In our original opinion, we based our ruling on the fact that the State had failed to offer sufficient evidence to prove the appellant’s alleged prior convictions.

The record in this case is abundantly clear that the proof adduced on the enhanced punishment phase of this trial was totally insufficient to support a jury finding that the State had proved that the defendant had been convicted of the prior shoplifting offenses, as alleged in the indictment. The appellant moved for a directed verdict on that portion of the indictment. The trial court erred in not granting that motion. The appellant was entitled to a verdict of acquittal as to her third offender status. From our review of the record, and as we understand the law, it was, and is, our duty to enter a verdict of acquittal in this regard.

If the trial court had determined that the State’s evidence on the point in question was insufficient and had directed a verdict of not guilty on that portion of the indictment, as it should have done, it could not seriously be argued that the appellant could be tried again. Where we, as the reviewing court, determine that the evidence is insufficient, then the effect is the same, and the appellant cannot be retried.

In Burks v. United States, supra, the court specifically held that a defendant may not be tried a second time when a reviewing court has determined that in a prior trial the evidence was insufficient to sustain the verdict of the jury. Among other things, the court said:

Consequently, as Mr. Justice Douglas correctly perceived in Sapir (Sapir v. United States, 348 U.S. 373, 75 S.Ct. 422, 99 L.Ed. 426), it should make no difference that the reviewing court, rather than the trial court, determine the evidence to be insufficient, see 348 U.S., at 374, 75 S.Ct. at 422. The appellate decision unmistakably meant that the District Court had erred in failing to grant a judgment of acquittal. To hold otherwise would create a purely arbitrary distinction between those in petitioner’s position and others who would enjoy the benefit of a correct decision by the District Court. See Sumpter v. DeGroote, 552 F.2d 1206, 1211-1212 (CA7 1977).
The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. 98 S.Ct. at 2147.

The State analogizes in support of their position that in habitual criminal prosecutions, the fact that a defendant may have been acquitted of being an habitual criminal on one occasion would not bar a finding of his habitual criminality in another prosecution, even though the latter finding was based on the same prior offenses that the first prosecution was predicated upon. For this proposition, the State correctly relies on Pearson v. State, 521 S.W.2d 225 (Tenn.1975), and Glasscock v. State, 570 S.W. 2d 354 (Tenn.Cr.App.1978). We point out that both of those cases dealt with successive prosecutions where different triggering offenses were involved, and we readily concede that those case holdings are correct legal propositions, so long as a different triggering offense is involved. With respect to the present ease, if the appellant were re-indicted for a new and different triggering offense, then without question the State would be within its rights to use her prior offenses for enhancement purposes.

Further, if one is acquitted of being an habitual criminal, then he cannot again be prosecuted for habitual criminality, absent an intervening conviction of one of the required triggering felonies. We find this latter conclusion to be well supported by' our Supreme Court’s language in Pearson v. State, supra, as follows:

It is an elementary proposition that the double jeopardy provisions of the State and Federal Constitutions preclude a second conviction under the habitual criminal statutes, absent the intervening conviction for one of the specific felonies. Again, it is the subsequent felony conviction that triggers the statute. 521 S.W.2d at 227.

It is also true, as the State argues, that habitual criminality is a status and not an offense. However, before one can be found guilty of being an habitual criminal — or of being a repeat offender of the shoplifting laws — there must be a specific finding of such by the jury. See T.C.A. § 40-2805. To that extent then this specific finding is a part of the jury verdict, and once the die is cast by either a jury verdict, or a directed verdict of acquittal by the judge — or reviewing court as in the present case — because of the insufficiency of the evidence, then under the holdings of Burks v. United States, supra, the accused may not be subjected to another prosecution involving the same case for the purpose of enhanced punishment.

The State cites two cases, Davis v. Bennett, 400 F.2d 279 (8th Cir. 1968), cert. den. 395 U.S. 980, 89 S.Ct. 2137, 23 L.Ed.2d 768, and Branch v. Beto, 364 F.Supp. 938 (S.D.Tex.1973) for the proposition that the appellant’s prior convictions may be used for enhancement purposes upon a retrial for the same triggering offense. In our opinion those cases, which pre-dated the Burks decision, would no longer serve as any authority for the proposition stated. We hasten to point out that prior to Burks, Tennessee, as well as practically all other jurisdictions, had always allowed a retrial of cases that had been reversed at the appellate level because of insufficient evidence.

Unquestionably, the jury verdict in the present case, in addition to finding the appellant guilty of the present offense, necessarily included the additional finding that she was a repeat offender of the shoplifting laws. We have found that the State failed to adduce sufficient evidence to support that finding by the jury, thus mandating an acquittal. Therefore, the State may not now be allowed to subject the defendant to another trial, on this same indictment, before a different jury, in an attempt to prove what it could not prove at the original trial. The State has had their opportunity to present their evidence in an effort to prove the appellant’s status as a repeat offender of the shoplifting laws and has failed to do so. As we read Burks, the prosecution is not permitted to have a ‘second bite at the apple.’ ” Burks v. United States, supra, 98 S.Ct. at 2150.

We adhere to the ruling made in our original opinion. We enter a judgment of acquittal for the appellant on the enhanced penalty phase of this trial and dismiss that portion of the indictment. We affirm the appellant’s conviction for the present offense of shoplifting and remand that portion of the case to the trial court for a punishment trial solely as it pertains to the present offense.

The State’s petition to rehear is dismissed.

BYERS, J., concurs.

DWYER, Judge,

dissenting.

I am in respectful disagreement with my brethren where they dismiss the timely filed petition to rehear of the State.

I would grant the petition for I think it contains merit that the inadequacy of proof as to the prior convictions of the appellant did not and do not involve a double jeopardy question.

The majority in denying the petition to rehear holds that to allow a retrial of appellant on the sole question to determine whether or not she is a repeated offender is barred by Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), which is based, as I view it, on retrials barred solely on the basis of double jeopardy.

The proof at the bifurcated proceedings here was offered simply and solely to achieve enhanced punishment and had nothing whatsoever to do with guilt or innocence, for that had already been determined. With guilt already firmly established, the inadequacy of the State’s attempt to prove the prior convictions does not, as I view it, come within the penumbra of Burks v. United States, supra. I see little difference between the attempt at enhancement of punishment and proving prior convictions for the purpose of establishing the status of habituality. In other words, our Supreme Court has held the proving of prior convictions in habitual criminal proceedings does not involve double jeopardy. Pearson v. State, 521 S.W.2d 225 (Tenn.1975); Glasscock v. State, 570 S.W.2d 354 (Tenn.Cr.App.1978), certiorari denied August 28,1978. It is my belief that a remand and retrial on the question of prior convictions alone is not barred by any constitutional provision. Hence, Burks v. United States, supra, is not controlling. As Mr. Chief Justice Henry states in State v. Johnson, 569 S.W.2d 808 (Tenn.1978), “it is just that simple.”

I would therefore grant the petition to rehear and reverse my position in the original opinion and remand this record for a trial solely on whether the punishment should be enhanced.

      . The deputy clerk testified that the name signed on the entry was illegible. We have inspected that document and we agree.

      . Even here, we would point out another glaring error. Sgt. McElrath testified that one of the defendant’s arrests was for an offense that occurred on May 19, 1973. However, the original indictments allege no offense as having occurred on that date. The nearest one to it is Indictment No. 37701, which alleges an offense as having occurred on May 10, 1973.

      . The indictment in this case was not labeled as a two-count indictment. However, in one section the defendant was charged with a present offense of shoplifting, and in a separate section with being a repeat offender.


author: POPE, Justice.

text:
    Albin FINKE, Petitioner, v. Gloria WHEATFALL et al., Respondents.
    No. B-7703.
    Supreme Court of Texas.
    May 2, 1979.
    Rehearing Denied May 30, 1979.
    DeLange, Hudspeth, Pitman & Katz, Charles E. Fitch, Houston, for petitioner.
    Fender & Crawford, Michael Crawford, Houston, for respondents.
   POPE, Justice.

This is an appeal from a judgment setting aside a prior judgment that had been rendered on service of process by publication. The motion for new trial was timely filed within two years of the prior judgment. Rule 329, Tex.R.Civ.P. The court of civil appeals affirmed the judgment. 565 S.W.2d 386. The courts below correctly set aside the former judgment but made an error in the new judgment.

Mary Jane Gaston and her husband, Dan Gaston, are both deceased, and they both died intestate. They are the common source for fifty acres of Waller County property that they owned in community. Mary Jane had one daughter prior to her marriage to Dan Gaston, but there were no children born of the Gaston’s marriage. Gloria Wheatfall and the other respondents are the heirs of Mary Jane Gaston.

Dan Gaston remarried after Mary Jane died and upon his death left one daughter, Mary Valentine. He also had more than seventy nieces, nephews, and other collateral heirs. A number of the Dan Gaston heirs instituted the original action seeking a partition of the entire fifty acres among those heirs only. Their action named as defendants the other heirs of Dan Gaston along with his unknown heirs who were cited by publication. The court appointed a receiver who sold all of the land to petitioner, Albin Finke, on December 17, 1974, for $37,500.00. That sum, less court costs, was then distributed to the named Dan Gaston heirs.

Gloria Wheatfall and the other Mary Jane Gaston heirs timely filed their motion for new trial on March 20, 1975, and they also asserted a cross-action in trespass to try title. They alleged that they were not parties to and had no notice of the partition suit and asked that the receiver’s deed and the partition order be set aside in their entirety. They named and served, either personally or by publication, all of the Dan Gaston heirs who were parties to the original partition suit, together with the receiver and Albin Finke, the purchaser of the property. The court rendered an interlocutory default judgment against forty-two persons who were the named parties to the original partition suit and who were personally served in the motion for new trial action but failed to answer. They had already sold all of their interest to Albin Finke. The only persons who appeared at the final trial were the Mary Jane Gaston heirs and the petitioner Albin Finke, the purchaser from the receiver.

After a trial before the court, the trial court granted the motion for new trial, vacated and set aside the original judgment of partition and the receiver’s deed “insofar as it Effects any of the land hereinafter awarded to the Movants.” The judgment further ordered that “the Movants herein do recover one-half interest in and to the hereinafter described real estate, being the same community interest of Mary Jane Young Gaston, and the Movants herein do recover all of the undivided interest of the Defaulting Defendants . .” The court then severed the “final determination of the partition” of the tract from this cause of action. Mr. Finke appealed.

The court of civil appeals correctly affirmed the judgment except for the part which awarded the Mary Jane Gaston heirs, “the undivided interest of the forty-two defaulting defendants . . .” The Mary Jane Gaston heirs were entitled to no more than one-half of the fifty acres, but the forty-two defaulting defendants and the rest of Dan Gaston’s heirs were entitled to the other half. The Dan Gaston heirs either by deeds executed by persons individually or by deed from the receiver had already sold their one-half interest to Albin Finke.

The Mary Jane Gaston heirs were required to allege and prove a meritorious claim against the partition judgment, receiver’s sale, and the other proceedings based upon the original judgment. Smith v. United Gas Pipe Line Co., 149 Tex. 69, 228 S.W.2d 139 (1950). They sustained that burden, but only with respect to the one-half community interest they owned as heirs of Mary Jane Gaston. They proved no right to any part of the Dan Gaston one-half community which had already been sold by the receiver to Mr. Finke. Under this record, the trial court erred in setting aside the receiver’s sale insofar as any part of the Dan Gaston interest was concerned. Stated another way, the trial court erred in expanding the recovery by the Mary Jane Gaston heirs beyond the one-half community interest they owned.

The judgment of the trial court is reformed so that the writ of partition, receiver’s deed, report and order of confirmation of the sale are set aside only to the extent that they award or concern more than the one-half interest of the Mary Jane Gaston heirs in the fifty-acre tract. Gloria Wheat-fall and the other heirs of Mary Jane Ga-ston shall recover such undivided one-half interest but they take nothing against Al-bin Finke as to the remaining one-half interest.

The judgment of the trial court also incorrectly describes the fifty-acre tract of land. The judgment is, therefore, reformed and the cause is remanded to the trial court for the rendition of a judgment in accord with this opinion.


author: SAM D. JOHNSON, Justice.

text:
    A. W. WASHINGTON, Petitioner, v. The RELIABLE LIFE INSURANCE COMPANY, Respondent.
    No. B-7941.
    Supreme Court of Texas.
    May 2, 1979.
    Rehearing Denied May 29, 1979.

      Carl Steekelberg, Midland, for petitioner.
    Shafer, Gilliland, Davis, Bunton & McCol-lum, Tryon D. Lewis, Odessa, for respondent.
   SAM D. JOHNSON, Justice.

This is a suit brought by the beneficiary of three life insurance policies to recover the proceeds thereof. A. W. Washington, plaintiff below and petitioner here, brought suit against The Reliable Life Insurance Company, defendant below and respondent here, to collect the benefits of three $1,000 nonmedical life insurance policies, which were purchased on the life of his mother, Ozell Washington, within four months of her death. After trial to a jury, the trial court rendered judgment in favor of A. W. Washington, the named beneficiary of all three policies, for $3,000, twelve percent statutory penalties, and attorneys’ fees. The court of civil appeals reversed, and rendered a take-nothing judgment against Washington, holding that he failed to establish as a matter of law either an avoidance of release or Reliable’s waiver of “good health” clauses in the policies. 570 S.W.2d 24. We affirm the judgment of the court of civil appeals in part and reverse and remand for a new trial in part.

In October 1974 Reliable issued three life insurance policies pursuant to separate applications made by the insured, Ozell Washington, who named her son, A. W. Washington, as beneficiary. These three policies involve somewhat different facts and legal questions as indicated by the following chart:

The facts and circumstances surrounding the issuance of these policies are as follows.

Ozell Washington was a very sick woman during the last few months of her life. She was a patient in Parkview Hospital in Midland from September 16 to October 11, 1974. Medical records from the hospital show that she was treated for chronic gom-erulo nephritis and congestive heart failure. Her feet and ankles were very swollen. She had shortness of breath, which made it difficult for her to speak. It was difficult to obtain a history from her because the effort to talk only enhanced her shortness of breath. Notations in the records categorized her as a “Class IV cardiac” patient and “very, very acutely ill.” Her prognosis was “guarded and grave.” A doctor continued to see her at least twice a week after she left the hospital.

Upon her discharge from the hospital, Ozell went to the home of her son, A. W. Washington, beneficiary of the policies, who lived in Midland. Sometime before October 15, Luther “Luke” Armstrong, an agent for Reliable, came by A. W. Washington’s home and talked to Ozell about taking out some life insurance. She signed two applications for two $1,000 policies (A and B on the chart above). Reliable issued Policy A on October 21 and Policy B on October 15, each in the amount of $1,000 and each naming A. W. Washington as the beneficiary. About this time, Ozell moved into the home of her sister, Viola Smith, who also lived in Midland. There she was visited by Fred Jones, another agent for Reliable, who took her application for a third policy. Reliable issued Policy C on October 28, again for $1,000 and again naming A. W. Washington as beneficiary.

Ozell’s condition thereafter worsened and she entered Odessa Medical Center Hospital on December 16, where she remained until her death on January 20, 1975. The medical records from that hospital showed that she was still having shortness of breath, swollen feet, and heart and lung problems. The death certificate listed the causes of death as cerebral infarction; arterial occlusion acute, intracerebral; and arteriosclerosis. Reliable was duly notified of her death.

Thereafter, in April 1975, Agent Armstrong called on the beneficiary of all three policies, A. W. Washington, and persuaded him to sign a release form in exchange for a return of the premiums paid on the policies. The release only covered Policies A and B. Reliable’s check for $70.85, the amount of the premiums, was either left with Washington or mailed to him. Washington refused to cash the check. Instead, he took it to his attorney who mailed it back to Reliable along with a letter demanding full payment of the policy benefits. By return letter, Reliable stated that it was voiding the check “refused by [Washington]” because it should have named the Jackson Funeral Home as a co-payee. The letter further asserted that Washington was only entitled to a return of the premiums. Washington thereafter filed this suit.

VALIDITY OF THE RELEASE

Reliable contends that it is not liable on Policies A and B because A. W. Washington, the beneficiary, signed a release. No special issues were requested by Washington in avoidance of this release and none were submitted. As a general rule, a party waives an issue upon which he relies by failure to request its submission. Tex.R. Civ.P. 279. Washington contends that no issues were necessary, however, since the evidence established as a matter of law that there was no consideration to support the release. Citing the legal treatise Texas Jurisprudence, the court of civil appeals re-jected this argument with the following statement:

“The repayment to the beneficiary of the amount of the premium paid on a life policy and the acceptance of such premium by him, with full acknowledgment in the receipt that the repayment was in full payment of claims under the policy, would bar a recovery by him in the absence of a valid defense. 32 TEX. JUR.2d, Insurance, Sec. 451 at p. 678 (1962).” 570 S.W.2d 24 at 27.

The only case cited by the treatise in support of this position is Great Southern Life Ins. Co. v. Heavin, 39 S.W.2d 851 (Tex.Com. App.1931, holding approved), which in turn is the only case cited to this court by Reliable.

Heavin is distinguishable on at least two grounds. First, the policy in Heavin specifically allowed a return of premiums instead of benefits, whereas the policy in our case has no such provision. Secondly, Mrs. Heavin not only accepted and kept the money tendered her, but also never offered to return it, whereas, in our case, Washington returned the check to Reliable and demanded full payment of the policy benefits. See Camden Fire Ins. Ass’n v. Baird, 187 S.W. 699 (Tex.Civ.App. — Dallas 1916, no writ). Moreover, Reliable voided the check due to omission of a payee and never tendered a corrected check to Washington. These facts establish as a matter of law a failure of consideration to support the release. It was not necessary to submit matters to the jury in this regard. The judgment of the court of civil appeals must be reversed on this ground.

WAIVER OF “GOOD HEALTH” CLAUSE

Policy A and Policy C contain identical “good health” clauses, which read as follows:

“This Policy shall become effective on the Policy Date if the Insured is then alive and in good health, but not otherwise.”

The parties stipulated that Ozell Washington, the insured, was not in good health within the meaning of the terms of these two policies on their effective dates. A. W. Washington, the beneficiary, urges, however, that the “good health” clauses were waived as a matter of law in that Reliable’s agents knew that Ozell was not in good health at the time the applications were procured. Waiver was an affirmative defense upon which Washington had the burden of proof. Texas Prudential Insurance Company v. Dillard, 158 Tex. 15, 307 S.W.2d 242 (1957). No special issues were requested or submitted to the jury on this point. As stated above, a party generally waives an issue upon which he relies by failure to request its submission. Tex.R.Civ.P. 279. Washington correctly states that no issue would be necessary if waiver were established as a matter of law. Texas Prudential Insurance Company v. Dillard, supra. The court of civil appeals held that the evidence did not establish waiver as a matter of law. Consequently, Washington was denied recovery on Policies A and C because of the violations of the “good health” clauses in those policies. We must examine the evidence concerning Policies A and C in light of this holding.

Policy A. Agent Armstrong obtained the application for this policy at the home of A. W. Washington, with whom Ozell was living at the time. Armstrong testified that he had known .Ozell for five or six years and that he did not know she was ill. On the day in question, she appeared to him to be in good health. Even A. W. Washington testified that on that day she looked “pretty good” and was “feeling Okay.” This testimony fails to establish as a matter of law that Agent Armstrong knew Ozell was not in good health and that he waived the “good health” provision of the policy. The court of civil appeals therefore correctly held that recovery on this policy was barred. See Texas Prudential Insurance Company v. Dillard, supra.

Policy C. This policy presents a somewhat different situation. Agent Jones obtained the application for this policy at the home of Viola Smith, Ozell’s sister. Three people were present when Ozell signed the application: Agent Jones, Ozell, and Viola Smith. Agent Jones did not testify and there is nothing in the record to indicate or explain his unavailability. Mrs. Smith testified that Ozell looked “horrible,” “like a skeleton,” and “dura near dead.” She stated that Ozell could not sit erect, could not get out of her chair, had difficulty talking and breathing, and that “everybody” who visited commented about her swollen legs. Most importantly, Mrs. Smith testified that she warned Ozell that the insurance company would not accept her because of her poor health.

“Q Well, I understand from your testimony that you do remember your saying that this insurance won’t pay because you are in bad health?
“A Sure did. That was what I said. I said that.
“Q All right. And what did the agent say to you and to Ozell when you said that?
“A He said, ‘Oh, yes, they will pay, they will pay. It is good. They will.pay.’ And I never did believe it, and I spoke it.”

On this point, Mrs. Smith was adamant and unswerving, returning to it several times during her testimony. Nevertheless, the court of civil appeals held that Mrs. Smith was “[a]t best ... an interested witness” and that as such her testimony did not establish waiver as a matter of law. 570 S.W.2d 24 at 27.

This court has only recently had occasion to consider in a slightly different context the rules concerning the finality to be given to testimony of an interested witness. In Collora v. Navarro, 574 S.W.2d 65 (Tex. 1978), this court stated the general rule to be that evidence given by an interested witness raises an issue of credibility upon which the jury must pass. It was also recognized that an exception to this general rule may arise when the testimony is clear, direct, and positive, is free from internal inconsistencies or contradictions, and is un-contradicted by other testimony or circumstances — “ ‘in short, when there is nothing to cause any reasonable suspicion as to its truth.’ ” 574 S.W.2d 65 at 69. The opinion further explained:

“This exception is most appropriate when the opposing party has the means and opportunity of disproving the testimony or testing the credibility of the witness, but fails to avail himself of it. On the other hand, . . ‘the basis for
recognizing an exception is weakened somewhat when the testimony is such that it could not readily be contradicted if untrue.’ ” [Citations omitted.] 574 S.W.2d 65 at 69.

An application of these rules to the facts of the instant case leads to the conclusion that the testimony of Mrs. Smith established as a matter of law that Reliable waived the “good health” provision of Policy C. Again we note that Reliable does not question the authority of its agents to waive this provision of the policy. Her testimony was clear, direct, positive, and uncontradicted. Reliable had the means to disprove her testimony by calling Agent Jones as a witness or by introducing his testimony through deposition. For whatever reason, Reliable did not utilize these options. Under these circumstances, we hold that the exception to the general rule applies and the testimony of Mrs. Smith established waiver as a matter of law. On this policy, therefore, the judgment of the court of civil appeals must be reversed.

MISREPRESENTATIONS DEFENSE

At trial, Reliable sought to avoid liability on all three policies with the defense of fraudulent misrepresentations by Ozell concerning her health. All three application forms contained questions inquiring about the health of the prospective insured. The answers on the application forms indicated that Ozell had not had heart disease, high blood pressure, or disease or injury of her lungs, nor had she had any injury, illness or operation within the past five years, nor had she been confined in the hospital for any reason, nor had she received any treatment by a doctor. All of the applications were signed by Ozell. These answers, of course, were false.

In the court’s charge to the jury, special issue one inquired whether Ozell had made certain representations concerning her health to Agent Armstrong when he was taking applications for Policies A and B. The jury answered this issue in the negative. Special issues two through five were not answered because they were conditioned upon an affirmative answer to special issue one. These unanswered issues asked whether the representations were false, were related to material facts or matters, were relied on by Reliable in issuing the policies, and were made by Ozell with the intent to deceive Reliable and induce it to issue the policies. Special issues six through ten made the same inquiries concerning the application for Policy C taken by Agent Jones. The jury returned a negative finding on special issue six, concerning Ozell’s representations to Agent Jones. Consequently, special issues seven through ten, relating to falsity, materiality, reliance, and intent, were not answered, inasmuch as they were conditioned upon an affirmative finding on special issue six. The trial court entered judgment in favor of A. W. Washington.

Reliable moved for judgment non obstante veredicto, contending that the defense of misrepresentations was proven as a matter of law. The trial court overruled the motion. The court of civil appeals disposed of the case on other grounds and did not consider the issue. Reliable bases its argument on the rule that an insured, having signed the application, is bound by the representations therein. In Odom v. Insurance Company of Penn., 455 S.W.2d 195, 199 (Tex.1970), this court stated: “[W]here an application for insurance is attached to and made a part of the policy and is accepted and retained by the insured, the insured is conclusively presumed to have knowledge of its contents and to have ratified any false statements therein.” This rule does not pertain to Policies A and C because the application forms were not attached to those policies.

The rule does control Policy B, however, because the application was attached to and made a part of that policy. While there was no testimony concerning delivery of Policy B to Ozell, it was admitted in request for admissions that Reliable “caused to be delivered to Ozell Washington ” all three policies. [Emphasis added.] Under the rule of Odom, then, Ozell was conclusively presumed to have ratified the false statements in the application. Robinson v. Reliable Life Ins. Co., 569 S.W.2d 28, 30 (Tex.1978); Johnson v. Prudential Insurance Co. of America, 519 S.W.2d 111, 114 (Tex.1975).

Contrary to what Reliable contends, however, this does not automatically establish the defense of misrepresentations, for there is still outstanding the issue of intentional deception, upon which Reliable had the burden of proof. As explained above, the jury did not reach the issue of intent because it failed to find in special issue one that Ozell made representations concerning her health to Agent Armstrong. Since under Odom v. Insurance Company of Penn., supra, Ozell was conclusively presumed to have ratified the false statements in the application on Policy B, special issue one, asking whether she made representations to Agent Armstrong, was irrelevant and it was improper to condition special issues two through five upon an affirmative answer to special issue one. Reliable is entitled to a new trial on its defense of misrepresentations as to Policy B. First Continental Life & Accident Co. v. Bolton, 524 S.W.2d 727 (Tex.Civ.App. — Houston [14th Dist.] 1975, writ ref’d n. r. e.).

It is true that Odom denied recovery to the insured without requiring a finding of intent. However, there are at least two reasons why this part of Odom does not apply to the case at bar. First, Odom and the cases cited therein concerned violations of warranties made by the insured, whereas the instant case concerns representations, a distinction of some importance to the court in First Continental Life & Accident Co. v. Bolton, supra. Secondly, there was strong evidence of collusion in Odom. Indeed, the court of civil appeals in that case held that collusion was proved as a matter of law, 441 S.W.2d 584, although that was not a basis of this court’s opinion. There is no suggestion of collusion between Ozell and Agent Armstrong here. Similarly, in Johnson v. Prudential Insurance Co. of America, supra, there was a specific finding of willful intent to deceive.

CONCLUSION

In sum, we hold that under the facts in the record before us A. W. Washington is not entitled to recover under Policy A because the “good health” provision was violated and Reliable’s waiver of this provision was not established as a matter of law. Under the facts in the record before us Washington is not barred from recovering under Policy B by the release, because the release was not supported by consideration. The cause is remanded for a new trial with regard to Policy B, however, so that Reliable may properly submit the defense of misrepresentations to the jury on this policy. Under the facts in the record before us Washington is entitled to recover under Policy C, notwithstanding the violation of the “good health” clause, because Reliable’s waiver of this provision was established as a matter of law. There still remains for resolution, however, the defense of misrepresentations on Policy C, which is independent of the “good health” defense, Southern Surety Co. v. Benton, 280 S.W. 551 (Tex.Com.App. —1926, jdgmt adopted), and on which Reliable has preserved its “insufficient evidence” point of error.

The question is presented as to the proper disposition of this appeal. One possible course of action would be to sever the causes of action on each policy and, as severed, to affirm the judgment of the court of civil appeals on Policy A, reverse and remand for new trial the judgment relative to Policy B, and reverse and remand to the court of civil appeals Policy C on the factual sufficiency of the evidence point. This is not an appropriate solution. Rule 503 of the Texas Rules of Civil Procedure allows severances and partial remands “if it appear to the court that the error affects a part only of the matter in controversy and that such part is clearly separable without unfairness to the parties . . . .” Rule 505 allows a remand in the interest of justice. It is the conclusion of this court that fairness to the parties and the interest of justice require that Policies B and C be remanded for a new trial.

Our judgment, therefore, is that the cause of action on Policy A is severed and, as severed, the judgment of the court of civil appeals relative thereto for The Reliable Life Insurance Company is affirmed. The cause of action on Policies B and C is likewise severed and, as severed, the judgment of the court of civil appeals relative to such policies is reversed and the cause relative to those policies is remanded for a new trial. It is to be anticipated that on retrial the different legal issues affecting each policy will be borne in mind and that such special issues as may be raised by the evidence and required by this opinion will be submitted to the jury. It is further to be anticipated that the holdings in this opinion concerning the state of the evidence will not necessarily be binding upon the retrial of this case, inasmuch as the evidence adduced at the new trial may differ from that shown in the record currently before this court.

      . The exact date is uncertain. Although Agent Armstrong talked to Ozell while at her son’s house, the date on the application form is October 7, at which time she was still in the hospital. The meeting had to be sometime before October 15, however, because Policy B was issued on that date.

      . Reliable states in its brief that Washington and Agent Armstrong agreed after some discussion that Washington was only entitled to a return of the premiums and nothing more, whereupon he signed the release. We find nothing in the record to support this assertion. Agent Armstrong merely testified that Washington signed the release; he did not mention any “agreement.” Washington recounted the event in the following way: “Well, when Luke came — this is all I have ever called him, and we know one another pretty good. And he says, ‘A. W., I’m sorry to tell you that it is not going to pay. And I brought your money back, refund.’ And I said, ‘Okay, Luke.’ He said, ‘But 1 do need you to sign to show that I did give you this check.’ And I said, ‘Luke, I don’t want to sign anything now,’ because actually I was disgusted. He said, ‘Well, at least show that I did leave it here with you.’ I said, ‘Well, if that will help you, I will sign it to show that this is it.’ So I signed it, yes, sir.”

      . Reliable has not denied the authority of its agents to waive these provisions of the policies. The point was not preserved, in any event.

      . At one point Mrs. Smith gave the following account of what happened:
      “A She mentioned she needed a policy. Then he talked to her. And then 1 told her that they wouldn’t write her up because you sick.
      “Q Okay. And what did she say to the insurance man?
      “A She talked with him. Now I can’t tell what was said word for word, but he did insure her they would pay, because he knew she was sick.
      “Q How did he know she was sick?
      “A Because I said it — I told him she was sick. And he seen her, she was sick.”
      At another point, she explained it this way:
      “Q Well, as a matter of fact, you told the insurance agent, and you told your sister, did you not—
      “A I sure did.
      “Q —that the insurance company would not write this insurance?
      “A I told her they wouldn’t pay.
      “Q And what did the insurance agent say?
      “A He said they would.
      “Q He said that they would?
      “A He said that they would.
      “Q All right. And were you in the room during this conversation that your sister had with the insurance man?
      “A Sitting right there.
      “Q And he told her that the insurance would pay if she would take it out?
      “A Sure did.”

      . It should be noted that the release signed by A. W. Washington did not cover this policy. Therefore, that defense is not open to Reliable on this policy.

      . Reliable also argued the evidence was factually insufficient to support these answers. The court of civil appeals did not reach this point either.

      . It was A. W. Washington who directed this request for admission to Reliable. Reliable admitted it as fact.


author: ODOM, Judge.

text:
    Enrique RIVERA, Appellant, v. The STATE of Texas, Appellee.
    No. 56079.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 21, 1979.
    Rehearing En Banc Denied June 6, 1979.

      Thomas Rocha, Jr., San Antonio, for appellant.
    Alton R. Griffin, Dist. Atty. and Jim B. Darnell, Asst. Dist. Atty., Lubbock, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for murder wherein punishment was assessed at 60 years’ imprisonment. Appellant asserts error was committed when the trial court took the issue of competency to stand trial away from the jury empaneled to determine that issue, when his confession was admitted into evidence, and when evidence seized in an allegedly illegal search was admitted.

Appellant was convicted of murdering Arthur Luna by beating him to death with a tire tool. Before trial, his attorney submitted a motion for a present competency hearing which was granted. Rivera was examined by Dr. John Raines who filed a written report and testified at the hearing for which a jury was empaneled. Dr. Raines testified that he believed Rivera to be sane and able to aid in his defense and that he was trying to fake a psychiatric condition. His evidence was all that was submitted at the hearing. At the end of his testimony, the trial judge withdrew the matter from the jury and found Rivera sane as a matter of law.

Appellant protests that it was error for the trial judge to take the question of competency away from the jury. He claims that Art. 46.02, V.A.C.C.P., entitles him to a jury determination once a jury is empaneled and points to our decision in Carpenter v. State, 507 S.W.2d 794, for support. In that case the trial court, sua sponte, entered an order reciting that “there [had] arisen in the mind of the Court a reasonable doubt as to the present sanity of the defendant” and ordering that a jury be empaneled to determine the issue of competency. Carpenter at 794. When the jury was unable to agree on a verdict, the judge discharged it and set the case for trial on the merits at which the defendant was found guilty. This Court reversed because, once the trial judge had determined that the issue of present sanity existed, it was up to the jury to decide the issue. Appellant quotes us as saying in Carpenter at 795: “That provision [46.02, Sec. 1] entitles a defendant to a pre-trial hearing on the issue regardless of whether the trial court determines that such issue exists or not,” and that is true as far as it goes. The sentence is referring to the right of a defendant to have a hearing to determine present sanity once he makes a motion for one.

Art. 46.02, Sec. 2(b), V.A.C.C.P., however, provides certain rules that govern the conduct of that hearing. As it existed at the time of the proceedings in this case, it stated:

“(b) When the issue of present insanity is tried, the following rules shall apply:
“(1) The issue of present insanity shall be submitted to the jury only if supported by competent testimony.”

Thus, the issue should not be submitted to the jury that has been empaneled unless there is competent evidence supporting it. In Carpenter, the judge had already decided there was evidence requiring a hearing be conducted. In the present case, the judge was responding to the mandatory provision of Art. 46.02, Sec. 1, in convening a hearing after appellant’s motion. In the course of that hearing, after all the evidence had been submitted, he determined that there was “no competent testimony” to support submitting the issue to the jury and declared Rivera sane as a matter of law. Perryman v. State, Tex.Cr.App., 494 S.W.2d 542; Ainsworth v. State, Tex.Cr.App., 493 S.W.2d 517; and Townsend v. State, Tex. Cr.App., 427 S.W.2d 555, cited in the briefs, all revolve around the necessity for a jury determination of the question of competency once facts have come to the trial judge’s attention which cause him to believe that such an issue exists. But when at the conclusion of the hearing it is found that no competent evidence was presented to support a finding of incompetency, it is not error under the above statute to refuse to submit the issue to the jury. In this case, the judge determined, after listening to the testimony at the hearing, that the issue was not supported by competent testimony, and was, therefore, required by Art. 46.-02(2)(b)(l), as then extant, to proceed as he did. Appellant’s first ground of error is overruled.

Appellant claims error was committed when his confession was introduced at trial because the conditions under which it was taken made it involuntary. During the course of the trial, the court held a hearing outside the presence of the jury to determine the voluntariness issue. The trial court had also heard a pretrial motion on the same issue several months before the trial, and at the conclusion of the mid-trial hearing, when the trial court announced its finding that the confession was voluntarily given, the court stated that it was also considering the evidence presented at the pre-trial hearing. The record of that hearing, however, is not in the appeal record before us. Accordingly, the issue urged by appellant cannot be determined on the record before us. The burden to present a sufficient record is on the appealing party. The ground of error is overruled.

Appellant’s third and fourth grounds of error concern the admissibility of evidence seized by virtue of a search warrant which he alleges was improperly drawn. This exact question has been dealt with by this Court in a case involving one of his co-defendants. Lopez v. State, Tex.Cr.App., 535 S.W.2d 643. The warrant was found to be proper and the evidence admissible. Appellant’s third and fourth grounds of error are overruled.

The judgment is affirmed.

      . See Lopez v. State, Tex.Cr.App., 535 S.W.2d 643, for details.

      . Art. 46.02, V.A.C.C.P., as then extant, was mandatory:
      “The issue of present insanity shall be tried in advance of trial on the merits, upon written application on behalf of the accused. If upon trial of the issue of insanity in advance of trial on the merits, the accused is found to be sane, the trial judge shall dismiss the jury which decided the issue of present insanity and empanel a new jury to hear any subsequent trial on the merits.”