author: GUITTARD, Justice.

text:
    Violet MOSS, Appellant, v. The STATE of Texas, Appellee.
    No. 19016.
    Court of Civil Appeals of Texas, Dallas.
    July 22, 1976.

      Roy Johnson, Dallas, for appellant.
    Henry Wade, Dist. Atty., Dallas County, William F. Denman, Asst. Dist. Atty., Dallas, for appellee.
   GUITTARD, Justice.

After a jury trial the probate court ordered Violet Moss to be confined to a mental hospital for a period of ninety days for “observation and/or treatment.” She appeals, complaining that the provisions of the Mental Health Code concerning temporary hospitalization, and particularly Tex. Rev.Civ.Stat.Ann. arts. 5547-27 to 5547-39d (Vernon 1958 and Vernon Supp.1975), are unconstitutional because they deprive persons of their liberty without due process of law. Appellant also contends that the evidence is insufficient to support jury findings that she is “mentally ill” and that she “does require observation and/or treatment in a mental hospital for her own welfare and protection or the protection of others.” We hold that appellant has not been denied due process in the respects alleged, but that the evidence is insufficient to support the verdict because the record does not show the factual information on which the medical witnesses based their recommendation of temporary hospitalization. Accordingly, we reverse the order and remand the cause for another hearing on the application for temporary hospitalization.

I. Necessity of Motion for New Trial

Before discussing appellant’s contentions, we must consider the State’s objection that we have no jurisdiction of the matters presented because appellant filed no motion for new trial as required by Tex.R.Civ.P. 324 as a prerequisite to appeal in jury cases. We hold that rule 324 has no application to this proceeding.

The appeal is governed by § 39a of the Code, which provides:

The person ordered committed may appeal the Order of Temporary Hospitalization by filing written notice thereof with the County Court within five (5) days after the Order of Temporary Hospitalization is entered.

The Code further provides that when notice of appeal’ is filed the clerk “shall immediately send a certified transcript of the proceedings to the Court of Civil Appeals” (§ 39b), and that such cases “shall be advanced on the docket and given a preference setting over all other cases” (§ 39d). Expeditious disposition of such an appeal is appropriate in view of the deprivation of liberty involved and the fact that the period of temporary hospitalization authorized by § 38(b) is only ninety days.

The State argues that since § 39a concerns only the notice of appeal and contains no reference to a motion for new trial, the requirement of a motion for new trial in rule 324 is not affected. We do not so construe § 39a. It is reasonable to suppose that if the legislature had intended that a motion for new trial should be filed as provided by rule 324, it would have provided for the notice to be filed after entry of the order overruling such motion, as did Tex.R.Civ.P. 353 before the recent amendment eliminating the notice of appeal requirement, and as Tex.R.Civ.P. 356 and 386 provide with respect to filing the appeal bond, transcript, and statement of facts. Since § 39a makes no such provision, but rather provides that the notice must be filed within five days after entry of the order for hospitalization and that the transcript should be sent “immediately” to the appellate court, the evident intent is that the jurisdiction of the trial court should be suspended and that of the appellate court should “immediately” attach. It would be contradictory to hold that after the record is already filed in the appellate court, the trial court retains authority to act on a motion for new trial within the periods of time prescribed by Tex.R.Civ.P. 329b and that disposition of such a motion is a prerequisite to appeal.

II. The Due Process Attack

Appellant argues that involuntary commitment of a person alleged to be mentally ill, although resulting from civil rather than criminal proceedings, is a deprivation of liberty that requires due process of law, citing In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), and Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968). We agree that due process is required. Consequently, we must examine the grounds on which appellant asserts that the Mental Health Code deprives the proposed patient of due process.

These grounds must be considered in the light of the record in this case. On April 20,1976, on filing of a sworn application by appellant’s mother, appellant was arrested and confined in the Dallas County Mental Evaluation Center. Appellant promptly employed counsel, who notified the Mental Evaluation Center that appellant did not consent to any mental examination. Nevertheless, on the next day, the probate judge signed an ex parte order appointing two physicians to examine her, requiring her to submit to such examination, and setting a hearing six days later. Notice of this order, together with a copy of the application, was immediately served on appellant. On the same day, April 21, she was examined by the two physicians so appointed, and on April 26 she was examined by another physician. All of the physicians signed and filed certificates stating that appellant was mentally ill, that she was likely to cause injury to herself or others if not immediately restrained, and that she required observation and treatment in a mental hospital.

The hearing was held on April 30 before the court and a jury, with appellant present. Her counsel participated and provided vigorous representation. After hearing the testimony of appellant’s mother and two of the physicians who had filed certificates, the court submitted special issues to the jury, and, based on the jury’s answers, the court signed an order committing appellant to a mental hospital “for observation and/or treatment.”

1. Notice to Patient

The first ground of the due process attack is that the Code permits a person to be incarcerated without personal notice to him since it permits notice to be waived by any responsible relative. This argument is based on a misreading of the Code. Section 33 provides:

The proposed patient shall be personally served with a copy of the Application and written notice of the time and place of hearing thereon and of the order, if any, to submit to an examination for mental illness. A copy of the Application and notice shall be sent by registered mail to the guardian or a responsible relative of the proposed patient.

Under this provision, notice to the relative is not a substitute for personal service on the proposed patient, but is an added safeguard. The relative may waive notice to himself, but not notice to the proposed patient. The record in this case shows that § 33 was fully complied with by personal notice to appellant as well as by a waiver of notice signed by her mother. We see no problem of due process in this respect.

2. Attorney Ad Litem

The second ground is that the only legal representation guaranteed to the proposed patient is the appointment of an attorney ad litem, who is not in a true adversary position with respect to the State because, like the State, he is supposed to represent the “best interests” of the proposed patient rather than to act as the proposed patient’s advocate in defense of his liberty. We find nothing in the Code that would deprive the proposed patient of representation by counsel of his own choice or that would prevent an appointed attorney from providing true adversary representation. Section 33 provides:

When such application is filed, the county judge shall simultaneously appoint an attorney ad litem, if there is no attorney representing the proposed patient. Such attorney shall be furnished with all records and papers in said cause together with access to all the hospital and doctors’ records in said cause.

We recognize that appointed counsel may not always provide adequate representation. No such problem is raised here, however, because the record shows that appellant had counsel of her choice, who provided able representation from the time of her arrest. Even if the Code should be held deficient in failing to guarantee adequate counsel to one not represented by counsel of his own choice, a person represented by his own chosen counsel has no standing to challenge the validity of the Code on that ground. Cf. Bode v. Barrett, 344 U.S. 583, 586, 73 S.Ct. 468, 471, 97 L.Ed. 567 (1953); Houston Oil Co. of Texas v. Lawson, 175 S.W.2d 716, 720 (Tex.Civ.App., Galveston 1943, writ ref’d); Waco v. Landingham, 158 S.W.2d 79, 81 (Tex.Civ.App., Waco 1940, writ ref’d).

3. Jury Verdict

The third ground is that the proposed patient can be “convicted” by a five-to-one vote of a county-court jury. This point was not raised by objection to the court’s charge. In any event, it is untenable because even in a criminal case due process does not require either a jury of twelve, Williams v. Florida, 399 U.S. 78, 103, 90 S.Ct. 1893, 1907, 26 L.Ed.2d 446 (1970), or a unanimous verdict, Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972).

4. Standard of Proof

The fourth ground is that the Code permits the proposed patient to be “convicted” by proof by a preponderance of the evidence rather than by proof beyond a reasonable doubt. The Code does not specify the standard of proof, but the special issues submitted required the jury to make its findings “from a preponderance of the evidence.” No objection was made to the charge on this ground. Consequently, this error, if it was an error, is not ground for reversal.

Nevertheless, since we remand the case for another hearing for insufficiency of the evidence, it is appropriate to determine whether “a preponderance of the evidence” is the proper standard of proof. The Code is not itself subject to attack for failure to specify the standard of proof. Greene v. State, 537 S.W.2d 100, 102 (Tex.Civ.App., Houston [1st Dist.] 1976, no writ). Traditionally this question has been left to the judiciary to resolve. Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 284, 87 S.Ct. 483, 487, 17 L.Ed.2d 362 (1966). Some of the federal courts have held that a civil commitment for mental illness requires proof beyond a reasonable doubt, at least when the commitment is for a long or indefinite period. In re Ballay, 157 U.S.App.D.C. 59, 482 F.2d 648, 653-669 (1973); Lessard v. Schmidt, 349 F.Supp. 1078, 1095 (E.D.Wis.1972), vacated on other grounds, 421 U.S. 957, 95 S.Ct. 1943, 44 L.Ed.2d 445 (1975). Justice Douglas took this position in his dissenting opinion in Murel v. Baltimore City Criminal Court, 407 U.S. 355, 358, 92 S.Ct. 2091, 2093, 32 L.Ed.2d 791 (1972). Other courts have held that no particular standard of proof is constitutionally required. Tippett v. Maryland, 436 F.2d 1153, 1159 (4th Cir. 1971), cert. dismissed as improvidently granted, sub nom. Murel v. Baltimore City Criminal Court, supra; cf. Purks v. State, 226 Md. 43, 171 A.2d 726, 728 (1961). Still other authorities have adopted the view that more than a bare preponderance of the evidence is required to deprive a person of his liberty, but that proof “beyond a reasonable doubt” is virtually unattainable at this stage in the development of psychiatric medicine on the issue of a person’s subjective mental condition and the probability that he will be dangerous in the future. Accordingly, these authorities require proof “by clear, unequivocal and convincing evidence,” which is considered to be “the highest degree of certitude reasonably attainable in view of the nature of the matter at issue.” Lynch v. Baxley, 386 F.Supp. 378, 393 (M.D.Ala.1974); Dixon v. Attorney General of Pennsylvania, 325 F.Supp. 966, 974 (M.D.Pa.1971); Comment, Civil Commitment of the Mentally Ill: Theories and Procedures, 79 Harv.L.Rev. 1288, 1291 (1966); Comment, Due Process for All—Constitutional Standards for Involuntary Civil Commitment and Release, 34 U.Chi.L.Rev. 633, 654-59 (1967); Note, Due Process and the Development of “Criminal” Safeguards in Civil Commitment Adjudications, 42 Fordham L.Rev. 611, 624-25 (1974); and see Tippett v. Marylandsupra, Sobeloff, J., concurring and dissenting at 1164-1166; Cf. In re Mastin, 521 S.W.2d 150, 152 (Tex.Civ.App.Dallas 1975, no writ), in which this court did not determine the standard of proof, but noted that the State conceded that it should be proof by “clear, unequivocal and convincing evidence.”

We approach the question from the viewpoint of sound administration of justice as well as from the viewpoint of due process. After reviewing the above authorities, we conclude that proof beyond a reasonable doubt is not constitutionally required in temporary hospitalization proceedings, in which the mental condition of the proposed patient has not been finally determined and the issue is whether he should be “committed as a patient for observation and/or treatment in a mental hospital for a period not exceeding ninety (90) days” under § 38(b) of the Mental Health Code. Since one of the purposes of temporary hospitalization is “observation,” the evident intent is to afford opportunity at a later stage for the attainment of a higher degree of certainty in the diagnosis and recommended treatment than is attainable within the time allowed for an order of temporary hospitalization. On the other hand, even a commitment for ninety days is a serious deprivation of liberty and may have grave consequences for a person not mentally ill or whose variance from normal standards of behavior is not of such a serious nature as to require confinement. Even at this stage, the necessity for involuntary hospitalization should be reasonably clear. Consequently, we hold that an order for temporary hospitalization under § 38 must be based on “clear, unequivocal, and convincing proof,” and that on another hearing the jury should be so instructed.

5. Secrecy of Hearing and Presence of Patient

The fifth ground is that the “mechanics are present for secret trials without the presence of the accused.” In this connection, complaint is made of the following provisions of § 36:

(a) The Judge may hold the hearing on an Application for Temporary Hospitalization at any suitable place within the county. The hearing should be held in a physical setting not likely to have a harmful effect on the mental condition of the proposed patient in the event he is present.
(b) The proposed patient is not required to be present at the hearing, but he shall not be denied the right to be present.
(e) The Court may exclude all persons not having a legitimate interest in the proceedings, provided the consent of the proposed patient first shall have been obtained.

This section does not provide that the hearing may be had in the absence of the proposed patient, if he wishes to be present, or that anyone may be excluded from the hearing over his objection. The record in the present case fails to show that the hearing was held in appellant’s absence or that any person was excluded. Consequently, no denial of due process in this respect is shown.

6. The Privilege Against Self-Incrimination

The most difficult question presented is that raised by appellant’s sixth ground, which attacks the provision of § 32 of the Code authorizing the judge to order the proposed patient to submit to a psychiatric examination. This section provides:

(a) Before a hearing may be had on an Application for Temporary Hospitalization there must be filed with the county court Certificates of Medical Examination for Mental Illness by two (2) physicians who have examined the proposed patient within five (5) days of the filing of the Certificate, each stating that the proposed patient is mentally ill and requires observation and/or treatment in a mental hospital.
(b) If the Certificates of two (2) physicians are not filed with the Application, the county judge shall appoint the necessary physicians, at least one of whom shall be a psychiatrist if one is available in the county, to examine the proposed patient and file Certificates with the county court. The judge may order the proposed patient to submit to the examination. [Emphasis added.]

Acting pursuant to this section, the probate judge appointed two physicians to examine appellant and ordered her to submit to such examinations. The examinations proceeded notwithstanding notice by appellant’s counsel that appellant did not consent. The examining physicians were permitted to testify at the hearing, over appellant’s objection, concerning their diagnosis and recommendations based on information obtained from appellant in these examinations.

Appellant argues that since involuntary hospitalization is a deprivation of liberty, the proposed patient has the same privilege to refuse to give evidence against himself as a person accused of a crime. Consequently, she insists, to order a person to submit to the interrogation involved in a psychiatric examination, as implied by § 32(b), requires him to give evidence against himself, thus depriving him of his liberty contrary to the fifth and fourteenth amendments to the Constitution of the United States.

We are not concerned with whether a person ordered to submit to a psychiatric examination under § 32(b) may refuse to divulge information that might be used against him in a criminal prosecution. For the purpose of this opinion, we assume that he may claim the privilege to this extent. Lynch v. Baxley, 386 F.Supp. 378, 394 (M.D.Ala.1974); People v. English, 31 Ill.2d 301, 201 N.E.2d 455, 459 (1964). Our question is whether he may refuse to answer any or all questions put to him by the appointed psychiatrist or other physician on the ground that his answers may be used against him in a civil commitment proceeding.

We have found only one decision holding that the privilege against self-incrimination applies in this situation. In Lessard v. Schmidt, 349 F.Supp. 1078, 1100-02 (E.D.Wis.1972), vacated on other grounds, 421 U.S. 957, 95 S.Ct. 1943, 44 L.Ed.2d 445 (1975), a three-judge federal district court made a broad review of the Wisconsin commitment procedure and held that statements to a psychiatrist, unless made voluntarily after notice of the possible consequences, cannot be the basis for an order of commitment, since such statements are incriminating in effect. Other authorities have seen a distinction between criminal prosecutions and civil commitment proceedings, in that the principal issue in a civil commitment proceeding is present mental condition rather than past anti-social activity, and have adopted the view that to recognize the privilege in this situation would deprive the court of the best and most reliable evidence, Tippett v. Maryland, 436 F.2d 1153, 1160-1162 (4th Cir. 1971), cert. dismissed as improvidently granted, sub nom. Murel v. Baltimore City Criminal Court, 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972); Greene v. State, 537 S.W.2d 100, 103 (Tex.Civ.App., Houston [1st Dist.] 1976, no writ); cf. Lynch v. Baxley, 386 F.Supp. 378, 394 (M.D.Ala.1974), and People v. English, 31 Ill.2d 301, 201 N.E.2d 455, 459 (1964), in which the privilege was apparently confined to statements that might be used in a criminal prosecution.

The Supreme Court passed up an opportunity to decide this question in McNeil v. Director, Patuxent Institution, 407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972), although Justice Douglas, in a dissenting opinion, seems to adopt the view that the privilege is applicable.

Any adequate analysis of the problem must take into account the decision of the Supreme Court in In re Gault, 387 U.S. 1, 42-57, 87 S.Ct. 1428, 1451-59, 18 L.Ed.2d 527 (1967). There the Court held the privilege to be applicable in juvenile delinquency cases notwithstanding the argument that such proceedings are civil in nature and are undertaken for the benefit of the child. The Court observed that proceedings which may lead to commitment to a state institution must be regarded as “criminal” for purposes of the privilege against self-incrimination. Consequently, the Court held that an admission by the juvenile could not be used against him in the absence of clear and unequivocal evidence that the admission was made with knowledge that he was not obliged to speak and would not be penalized for remaining silent.

Gault, however, does not support the view that any legal process which threatens to deprive a person of his liberty necessarily requires the same constitutional protections as a criminal prosecution. The Court was careful to state that it did not mean to hold that an adjudication of delinquency “must conform with all the requirements of a criminal trial,” but merely “that the hearing must measure up to the essentials of due process and fair treatment.” 387 U.S. at 30, 87 S.Ct. at 1445. The problem, said the Court, “is to ascertain the precise impact of the due process requirement upon such proceedings.”

The Supreme Court’s unwillingness to apply criminal due process requirements inflexibly to all proceedings involving involuntary incarceration is demonstrated in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), in which the Court held that due process does not require trial by jury in a juvenile delinquency case. Likewise, in Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972), which involved the application of due process guarantees to proceedings for revocation of parole, the Court reaffirmed previous declarations that due process is flexible and calls for such procedural protection as the particular situation demands, and that a determination of what process is due requires a determination of the precise nature of the governmental function involved and the private interest affected.

We are persuaded that the balance of the competing public and private interests with respect to the privilege of withholding information from the court in a civil commitment proceeding differs substantially from the balance struck in Gault for juvenile delinquency proceedings. In Gault, the Court emphasized the possibility that the juvenile’s admissions of guilt might be used against him in a criminal prosecution if the juvenile court should exercise its discretion to relinquish its jurisdiction to the ordinary criminal courts. 387 U.S. at 50-51, 87 S.Ct. at 1456. The Court’s conclusion that a juvenile should have no less constitutional protection than an adult charged with the same criminal acts seems to have been influenced by the fact that the points considered by the trial court differed little from those that would have been involved in determining any charge of violation of a penal statute by an adult. The Court seems to have given weight also to the circumstance that the offense involved would have been only a misdemeanor if committed by an adult. 387 U.S. at 28-30, 87 S.Ct. 1444-45. The major ground of the decision, however, appears to rest on the Court’s analysis of the rationale underlying the privilege against self-incrimination. According to the prevailing opinion by Justice Fortas, the privilege is based on the assumption that the confession of a criminal act is basically untrustworthy unless shown to be entirely voluntary. The Court reasons that if a confession of crime is untrustworthy in the case of an adult, it is even more so in the case of a child, as illustrated by the examples cited of children who confessed to crimes they did not commit. 387 U.S. 44-56, 87 S.Ct. 1453-59.

In our opinion the considerations deemed controlling in Gault do not apply with the same force when the issue is not a past act, which can be established by the testimony of an ordinary witness, but a present mental condition, which can be adequately described and evaluated only with the assistance of experts. There is little danger that the statements of the proposed patient to the examiner will be taken as evidence in a subsequent criminal proceeding, since the privilege is admittedly applicable to that extent. So far as untrustworthiness is concerned, the opinion of a physician based on the patient’s statements to him is likely to be more reliable than the opinion of the same physician if based on the statements of other witnesses who must rely on their own casual and untrained observation. Although an examination ordered by the court may be coercive to some extent, particularly if the patient is under detention, no particular answer is as likely to be coerced as when the inquiry is whether the person in question committed a particular criminal act. Consequently, we do not consider such a compelled examination inhumane or likely to produce an untrustworthy result to the same extent as a confession of crime elicited by interrogation of an accused person in custody of the police.

Indeed, a mental examination by a psychiatrist or other physician may properly be regarded as a protection for a person alleged to be mentally ill. The people of Texas have recognized this protection by including in their Bill of Rights a provision that “no person shall be committed as a person of unsound mind except on competent medical or psychiatric testimony.” Tex.Const. art. I, § 15-a. This provision is a strong declaration of the public policy of this state concerning the necessity of expert testimony in a civil commitment proceeding. Without this guarantee, a person who is merely eccentric may be committed to an institution against his will on the basis of testimony by misguided or unscrupulous persons who are neither enlightened nor restrained by the training, experience, and standards of the medical profession. This guarantee would be substantially weakened, and perhaps nullified, if the physician or psychiatrist is provided no opportunity to employ the procedures recognized in the profession for diagnosing the problems of the mentally disturbed patient.

The psychiatric interview, as we understand it, is highly important to proper diagnosis and treatment of a mentally disturbed patient. In a case of physical illness, the physician consulted would be at a serious disadvantage if he is required to make a diagnosis and prescribe a treatment without examining the patient and hearing at first hand the patient’s own account of his history and complaints. A psychiatrist or other physician consulted about suspected mental illness is at an equal if not greater disadvantage if he is required to make a diagnosis and recommendation without a direct interview with the patient, since the only manifestation of mental illness may be the patient’s revelation of his own mental processes. An opinion based on an interview is likely to be more reliable than one based entirely on information related to the physician by the patient’s family or other related persons or one expressed in court in response to a hypothetical question based on the testimony of other witnesses. Thus the constitutional guarantee of “competent medical or psychiatric testimony,” reasonably implies a proper opportunity to examine the patient and affords substantial protection against deprivation of liberty, even to a person unwilling to submit to such examination. Certainly a proposed patient who may be dangerous to himself or others should not be able to avoid restraint by refusing to submit to the examination necessary to satisfy the requirements of the Texas Constitution and Mental Health Code.

We recognize, of course, that the fourteenth amendment right of due process takes precedence over the provision of our Texas Bill of Rights, but, as the Supreme Court of the United States has recognized in the cases above discussed, due process is a flexible concept requiring a balancing of interests. The interest of the individual in maintaining his liberty must be balanced against the interest of the state in protecting its citizens against injury from mentally disturbed persons, and also against the state’s interest in providing care and treatment for mentally disturbed persons unable to appreciate the necessity for hospitalization. On striking that balance in the light of the foregoing considerations, we conclude that due process does not require an absolute privilege against providing information in a psychiatric interview that may be used by the interviewer as basis for his recommendation for hospitalization, but rather requires safeguards to assure that such interviews are not employed as instruments of abuse or oppression.

We are convinced that the Texas commitment procedure has adequate safeguards against abuse in the conduct of mental examinations. Section 32 of the Code provides for the filing of certificates of two physicians, based on recent examinations of the proposed patient, before a hearing is held. Section 33 provides that the patient’s attorney, whether selected by him or appointed by the court, “shall be furnished with all records and papers in said cause together with access to all the hospital and doctors’ records in said cause.” These provisions give assurance that a patient will not be deprived of his liberty because of the incompetence or unserupu-lousness of a single examining physician. The ethical standards of the medical profession provide a measure of protection that may not be available in other types of interrogation, such as that in Gault, where the Supreme Court was prompted to regard the juvenile’s admission of guilt as untrustworthy. The effectiveness of those standards is increased by requiring an examination and certificate by more than one physician.

Another safeguard provided by the Code and by the Texas Constitution is the requirement of a legal as well as a medical determination of the necessity for commitment. Under § 38, an order of temporary hospitalization must rest on the court’s own findings or the findings of a jury if a jury has been demanded. For reasons to be stated in our discussion of the sufficiency of the evidence in this case, this legal determination must be based on factual information supporting the expert opinion; thus, the physician’s conduct of the interview is subject to scrutiny by the court. Other safeguards, not urged here, may be imposed by judicial decision if appropriate or constitutionally required.

We have no occasion to consider what sanctions are available if the proposed patient fails to appear for the interview or refuses to answer questions, since, in the present case, the appellant did respond to questions although the examinations were made over the objection of her counsel. We realize, however, that problems of this kind may arise. Cf. McNeil v. Director, Patuxent Institution, 407 U.S. 245, 251, 92 S.Ct. 2083, 2087, 32 L.Ed.2d 719 (1972). Neither do we decide here whether the proposed patient may be called by the State as witness and required to give evidence against himself at the hearing. We hold only that the due process clause of the fourteenth amendment does not forbid an order to submit to these examinations, as provided by § 32(b), and that testimony of the examining physician based on information obtained at such an examination may be admitted in evidence at the commitment hearing.

III. Sufficiency of Evidence

We turn now to appellant’s contention that the evidence is insufficient to support the jury’s findings that appellant is “mentally ill” and that she “does require observation and/or treatment in a mental hospital for her own welfare and protection or the protection of others.” Consideration of this contention requires a review of the evidence.

The State called as its only witnesses appellant’s mother, who had signed the application for voluntary hospitalization, and Dr. Marjorie Sewell, one of the physicians who had examined the plaintiff in the Mental Evaluation Center. Appellant’s mother testified that during the sixty days before she had made the application appellant had been living with her and that she had observed appellant during that period. She said that shortly before the application was made she and appellant were in the kitchen and appellant said, “I’m getting a flash and I could knife you.” For more than a month before that incident, appellant had not bathed, had stayed in bed or on the sofa, rising only for meals, and had refused to see anyone. Her mother had tried to persuade appellant to secure some sort of mental treatment, but appellant had refused and had become hostile whenever the subject was mentioned. The mother further testified that in her opinion, based on her observation over this sixty-day period, appellant was mentally ill, and was dangerous to herself and to her mother.

Dr. Marjorie Sewell testified that she was a physician with special training and experience in the field of mental health. She had examined plaintiff on April 26 after her arrest and detention on April 20. She did not record the length of time she was with appellant, but said that such interviews usually take fifteen or twenty minutes. She testified that on the basis of the examination and interview, she diagnosed appellant’s condition as “chronic schizophrenia,” a form of mental illness. She reeom-mended as treatment a temporary period of hospitalization, and said that she would not recommend treatment as an outpatient. In her certificate filed with the court, she stated that in her opinion appellant was likely, because of mental illness, to cause injury to herself or others if not immediately restrained. She testified that this opinion was based on appellant’s “delusional thinking,” which was “disassociated from reality.”

Dr. Raymond Brown, a psychiatrist, was called by appellant as an adverse witness. On examination by appellant’s counsel, Dr. Brown admitted that counsel had talked to him by telephone before he examined appellant and that he knew that appellant had been advised by counsel to remain silent, but that he proceeded with the interview. On examination by counsel for the State, Dr. Brown testified that he took from appellant a history, including the fact that she had previously been committed many times for mental illness. Based on that history and his examination, he testified that appellant was mentally ill at the time he examined her, and he recommended hospitalization. He diagnosed her condition as a “paranoid state” and found that she “was a potential danger to herself and others.” This finding of dangerousness, he said, was based on a telephone call from another psychiatrist who had seen appellant earlier. Dr. Brown admitted that he had filled out a form after his examination of appellant in which he had checked “None” to the inquiry of “danger to self and others,” and that he had made no affirmative indication in the spaces provided for noting “thoughts of suicide,” “suicidal behavior,” “other self-destructive behavior,” “recent thoughts of homicide,” “homicidal behavior,” and “other externally-directed destructive behavior.” This doctor saw no inconsistency between his finding that appellant was not dangerous at the time he examined her and his conclusion that she was a “potential danger” for the future.

Appellant argues that the doctors’ opinions were not competent because they were based on information obtained from the patient contrary to her privilege to remain silent. This ground is untenable because we hold, for reasons already stated, she had no such privilege. However, serious questions remain concerning sufficiency of the evidence.

We conclude that this evidence is insufficient to support the jury’s findings because it does not give the factual basis on which the medical opinions are based. A person suspected of mental illness ought not to be deprived of liberty on the basis of expert opinion alone. Such an opinion, although constitutionally required in Texas, as pointed out above, is not in itself enough to deprive a person of his liberty. If the conclusion of a psychiatrist were sufficient for a civil commitment, no necessity would exist for a court, with or without a jury, to make a judicial determination of the facts necessary for involuntary hospitalization. Section 32 of the Code requires examination by two physicians, but under §§ 37 and 38, if temporary hospitalization is opposed, the court must hear testimony and make its own findings. Trial by jury is required if demanded by the patient. Tex.Const. art. I, § 15-a; Mental Health Code § 36(e).

We interpret these provisions of the Code and the Constitution as requiring both a medical and a legal determination of the grounds on which the proposed patient is to be deprived of his liberty. The rationale for requiring a legal determination has been stated by the Supreme Court of the United States with respect to a similar statute of Wisconsin as follows:

Since 1880, Wisconsin has relied on a jury to decide whether to confine a person for compulsory psychiatric treatment. Like most, if not all, other States with similar legislation, Wisconsin conditions such confinement not solely on the medical judgment that the defendant is mentally ill and treatable, but also on the social and legal judgment that his potential for doing harm, to himself or to others, is great enough to justify such a massive curtailment of liberty. In making this determination, the jury serves the critical function of introducing into the process a lay judgment, reflecting values generally held in the community, concerning the kinds of potential harm that justify the State in confining a person for compulsory treatment.

Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394 (1972).

In order for the jury to make a “lay judgment, reflecting values generally held in the community concerning the kinds of potential harm that justify the State in confining a person for compulsory treatment,” the factual data supporting the medical opinion should be shown by the evidence. Expert testimony that a person’s condition has been diagnosed as “chronic schizophrenia” or “paranoid state” does not advise the jury whether hospitalization is necessary. Neither does an opinion that a person is “potentially dangerous,” without more, warrant confinement, if that person has never done violence to himself or anyone else. Unless opinions such as these are supported by statements of the behavior on which they are based, the court does not have sufficient information to make a proper legal determination of whether the potential harm is great enough to justify depriving the person of his liberty.

The inherent weakness of the conclusions of psychiatrists on the issue of dangerousness in civil commitment proceedings, when offered without supporting data, has been judicially recognized. In re Barnard, 147 U.S.App.D.C. 302, 455 F.2d 1370, 1375 (1971); Cross v. Harris, 135 U.S.App.D.C. 259, 418 F.2d 1095, 1099-1101 (1969); Millard v. Harris, 132 U.S.App.D.C. 146, 406 F.2d 964, 968 (1968). The same weakness has been recognized when such testimony has been offered on the issue of insanity in criminal cases. Washington v. United States, 129 U.S.App.D.C. 29, 390 F.2d 444, 453-454 (1967); Mims v. United States, 375 F.2d 135, 140-146 (5th Cir. 1967); Dusky v. United States, 295 F.2d 743, 754-755 (8th Cir. 1961); Blocker v. United States, 110 U.S.App.D.C. 41, 288 F.2d 853, 863 (1961, Burger, J., concurring), cert. den., 375 U.S. 923, 84 S.Ct. 269, 11 L.Ed.2d 167 (1963); Carter v. United States, 102 U.S.App.D.C. 227, 252 F.2d 608, 617 (1956). It has even been seriously argued on the basis of case studies that psychiatric opinions, diagnoses, and predictions are so inaccurate and unreliable that they should not even be admissible in civil commitment proceedings, and that the testimony of psychiatrists should be limited to descriptive statements of what the psychiatrist has personally observed. Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Calif.L.Rev. 693, 735-38 (1974). Although we do not go that far, we are not convinced that a psychiatrist, physician, or any other expert is sufficiently qualified by training or experience in the prediction of human behavior that his bare opinion of “potential danger” is sufficient to justify the court in depriving a person of his liberty. See Elliott, Procedures for Involuntary Commitment on the Basis of Alleged Mental Illness, 42 U.Colo.L.Rev. 231, 248 (1970); Bazelon, Institutionalization, Deinstitutionalization and the Adversary Process, 75 Colum.L.Rev. 897, 900-901 (1970); Ross, Commitment of the Mentally Ill: Problems of Law and Policy, 57 Mich.L. Rev. 945, 963 (1959).

In the present case, neither Dr. Sewell nor Dr. Brown gave any factual basis for their opinions. They testified that their diagnoses were based on statements that appellant had made to them, but they did not reveal what those statements were. Dr. Sewell testified that her opinion of appellant’s potential dangerousness was based on appellant’s “delusional thinking,” which was “disassociated from reality,” but she gave no indication of what beliefs appellant held that were “disassociated from reality,” except to say that appellant has spoken of “anti-communist articles in St. Louis.” Likewise, Dr. Brown’s opinion of appellant’s “potential danger” was extremely weak in view of the apparent inconsistency in his reports and the fact that his opinion in this respect was based on the hearsay statement of another psychiatrist.

The testimony of appellant’s mother provides more factual information, but the record does not show that this information was available to either Dr. Sewell or Dr. Brown. The only specific evidence of appellant’s dangerousness was her mother’s testimony that appellant had told her, “I could knife you.” However, the mother’s testimony alone is not sufficient to support the jury’s finding in view of the constitutional prohibition against commitment “except on competent medical or psychiatric testimony.” Tex.Const. art. I, § 15-a. This provision is implemented by § 32 of the Code, which requires examination and certification by two physicians before a hearing can even be held on an application for temporary hospitalization.

We conclude that when an application for temporary hospitalization is opposed by the prospective patient, the order of commitment must be supported by the recommendation of a physician and a showing of the factual information on which that recommendation is based. Since that factual information is not shown here, we hold that the evidence is factually insufficient to support the verdict. Accordingly, the order for temporary hospitalization is reversed and the cause is remanded to the probate court for another hearing. Meanwhile, it is ordered that all treatment of appellant for mental illness be discontinued and that she be returned to the Dallas County Mental Health Evaluation Center. It is further ordered that appellant be released from custody unless another hearing on the application for temporary hospitalization is set in accordance with § 33 of the Code within fourteen days after the filing of our mandate.

Reversed and remanded.

      . The articles of the Mental Health Code will be cited in this opinion by section numbers; for example, the articles mentioned above as §§ 27 to 39d.

      . See the following discussions of this problem: Cohen, The Function of the Attorney and the Commitment of the Mentally Ill, 44 TEXAS L.REV. 424-459 (1966); Brunetti, The Right to Counsel, Waiver Thereof, and Effective Assistance of Counsel in Civil Commitment Proceedings, 29 SW.L.J. 684, 708 (1975); Litwack, Role of Counsel in Civil Commitment Proceedings: Emerging Problems, 62 CALIF.L.REV. 816-839 (1974); The Role of Counsel in Civil Commitment Process: A Theoretical Framework, 84 YALE L.J. 1540-1563 (1975).

      . This standard of proof was adopted for deportation proceedings in Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 284, 87 S.Ct. 483, 487, 17 L.Ed.2d 362 (1966).

      . The fifth amendment, which is made applicable to the states by the fourteenth amendment, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), provides that no person “shall be compelled in any criminal case to be a witness against himself.” The same question arises under Tex.Const. art. I, § 10: “In all criminal prosecutions the accused shall not be compelled to give evidence against himself.”

      . Detailed discussion of the privilege in the context of civil commitment may be found in a number of law-review articles: Aronson, Should the Privilege Against Self-Incrimination Apply to Compelled Psychiatric Examinations? 26 Stan.L.Rev. 55-93 (1973); A. Dershowitz, Preventive Confinement, A Suggested Framework for Constitutional Analysis, 51 Tex.L.Rev. 1277, 1314-1316 (1973); Civil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190, 1303-1313 (1974); Lessard v. Schmidt, Due Process and Involuntary Commitment, 68 NW. U.L. Rev. 585, 617-623 (1973); Fielding, Compulsory Psychiatric Examination in Civil Commitment and the Privilege Against Self-Incrimination, 9 Gonz.L.Rev. 117, 126-127, 158, 165 (1973); see also 8 Wigmore on Evidence (McNaughton rev. 1961) § 2251.

      . These may include the presence of the patient’s own psychiatrist or attorney, if demanded, or, alternatively, making a complete record of the interview available to the patient’s counsel. Lessard v. Schmidt, supra at 1100. Cf. Heryford v. Parker, 396 F.2d 393, 396 (10th Cir. 1968); but cf. also Lynch v. Baxley, 386 F.Supp. 378, 389 (M.D.Ala.1968), note 5. See also Aronson, supra, note 5, at 91. Restrictions on mental examinations when the patient is under the influence of psychoactive medication may also be advisable.

      . Art. 5547-37 Findings on Certificates

      If at the hearing no one opposes temporary hospitalization of the proposed patient, the court may make its findings upon the basis of the Certificates of Medical Examination for Mental Illness on file with the court.

        Art. 5547-38 Order upon Hearing

      (a)If upon the hearing the court finds that the proposed patient is not mentally ill or does not require observation and/or treatment in a mental hospital, the court shall enter its order denying the Application and shall order the immediate release of the proposed patient if he is not at liberty.
      (b) If upon the hearing the court finds that the proposed patient is mentally ill and requires observation and/or treatment in a mental hospital for his own welfare and protection or the protection of others, the court shall order that the mentally ill person be committed as a patient for observation and/or treatment in a mental hospital for a period not exceeding ninety (90) days.
      (c) If upon the hearing the court finds that the proposed patient is mentally ill and requires observation or treatment for his own welfare and protection or the protection of others but that the required observation or treatment can be accomplished without commitment to a mental hospital, the court may order the proposed patient to submit to other treatment, observation, or care as may be found by the court to be likely to promote the welfare or protection of the proposed patient and the protection of others. If the proposed patient fails to fulfill the terms of the court’s order, the court may, on its own motion or on the motion of any interested party, order that the mentally ill person be committed as a patient for observation or treatment in a mental hospital for a period not exceeding 90 days.

      . Judge Burger’s view on this question was later adopted by the Court of Appeals in Washington v. United States, supra.


source: Caselaw Access Project

author: JAMES, Justice.

license: Public Domain

text:
    Jim SIMON, Appellant, v. Sandra Elaine (Perry) WATSON, Appellee.
    No. 5560.
    Court of Civil Appeals of Texas, Waco.
    Aug. 5, 1976.
    Rehearing Denied Aug. 19, 1976.

      William Andress, Jr., Andress, Woodgate & Lodewick, Dallas, for appellant.
    R. Jack Ayres, Jr., Kelsoe, McDonald & Ayres, Dallas, for appellee.
   OPINION

JAMES, Justice.

This is a suit by a woman against a man for money and property growing out of and after the termination of an illicit relationship between them. Pursuant to a jury verdict favorable to the woman, the trial court entered judgment in favor of the woman, from which the man appeals. We affirm.

Plaintiff-Appellee Sandra Elaine Watson brought this suit against Defendant-Appellant Jim Simon, among other things, for certain real estate, a 1969 Rolls Royce automobile, a 1973 Jaguar automobile, and $100,000 actual damages, which prayer for relief included the setting aside of a purported letter agreement of February 12, 1973, as well as instruments whereby title to the two automobiles above referred to were assigned from her to him.

Sandra Elaine Watson’s maiden surname was Perry, and she was an heiress of her grandparents’ estate. She grew up in Luf-kin, Texas, and when she was fifteen years of age her parents sent her to Hockaday School for Girls in Dallas, Texas. After completing her studies at Hockaday, she graduated from Southern Methodist University in Dallas. Shortly after graduation, she married a schoolday sweetheart; however, this marriage was unsuccessful and ended in divorce. Thereafter she lived alone in Dallas, her testimony showing she was lonely and depressed.

In December 1969 she met the Defendant Jim Simon who represented himself to be a successful business man who owned and operated “Jamie’s,” a chain of restaurants, and who drove a 1969 Rolls Royce automobile. After they dated for a time, they began living together. She testified that she was very much in love with him, and that he proposed marriage to her, and that she accepted; that he took over the management of substantially all of her money and business affairs; that he investigated her financial holdings and that of her family, and convinced her that her father was wrongfully withholding from her what was rightfully due her. She said that he told her he would see to it that she was protected and that she would get what was coming to her, and that he succeeded in isolating her from her family and what friends she had.

In August 1970, he conducted the purchase of a piece of residence real estate located at 5055 Lake Hill Court in Dallas, Texas, and took title thereto in Sandra’s name. This is the real property in controversy which was sued for by Plaintiff-Ap-pellee. Simon arranged for a $60,000.00 loan with First Federal Savings and Loan Association of Dallas to pay the purchase price. Additionally, a $10,000.00 loan with First Federal was made to pay for improvements on the Lake Hill Court property which was secured by a $10,000.00 certificate of deposit put up with Sandra’s money. About a year later, when the $10,000.00 note came due, it was not paid, and First Federal foreclosed on the $10,000.00 certificate of deposit.

At or about the same time the Lake Hill Court property was purchased, Simon arranged for Sandra to put up another $10,-000.00 certificate of deposit to secure a $10,-000.00 note owing to the Bank of Dallas. The proceeds of this loan were used to build a swimming pool and to make other improvements on the Lake Hill Court property. Ultimately this note was not paid, and the Bank of Dallas foreclosed upon this $10,000.00 certificate of deposit.

The parties moved into and lived together in the Lake Hill Court property until August 1972, when she moved out. She testified he forced her to leave, whereas he testified she left voluntarily.

In March of 1971, he told her he owed $85,000.00 on the Rolls Royce automobile in connection with the purchase thereof; whereupon she helped him get a $35,000.00 loan with the Lakewood Bank and Trust Company by purchasing with her money a $35,000.00 certificate of deposit with said Bank. Six months later, this note to the Lakewood Bank not having been paid, said Bank foreclosed upon this $35,000.00 certificate of deposit. The title of the Rolls Royce was put in Sandra’s name. Not long after this, Simon bought a Jaguar automobile for $6100.00 and it is disputed how much of this was his money and how much was her money. At any rate, he had the title to the Jaguar put in her name. Later on, Simon got her to sign the titles on the Rolls Royce and Jaguar to his name, after which he mortgaged them for a $15,000.00 loan.

In addition to the above transactions, during the times material to this controversy, she put up a cashier’s check for $10,-296.79 to try to save Simon’s residence property on Bowser Street in Dallas, Texas, from foreclosure; also, in August 1972 when she moved out of the Lake Hill Court place she signed two checks in blank. Simon made out one of these checks to his brother, Sam Simon, for $5,000.00 and the other was made out in his own children’s name for $10,000.00. In addition thereto, through Simon’s efforts, her money went into such things as house payments on the Lake Hill Court place, child support payments for Simon’s children (he had been married and divorced), additional improvements on the Lake Hill Court place, and various living expenses.

To summarize these financial aspects, Plaintiff showed that during the time they lived together, there came into her hands $102,336.07, and by August of 1972 when she moved out of the Lake Hill Court place, all of this money was gone except $500.00.

The record shows that Simon was in serious financial difficulties from as far back as prior to the time he and Sandra met; that he had several lawsuits against him by creditors, some of which had been reduced to judgments. In some of these previous lawsuits he testified that he owned no interest in the Lake Hill Court property, the furniture and furnishings contained therein, the Rolls Royce, the Jaguar, or in any other property except some stock which proved to be of questionable value. Moreover, his testimony in these previous lawsuits was at serious variance with his income tax returns.

Plaintiff-Appellee testified that during her relationship with Defendant-Appellant, she was very much in love with him, but at the same time she was afraid of him; that sometimes he was nice and at other times he was mean to her; that he had told her of his underworld connections; that she was at all times under his domination and control partly out of love and partly out of fear. Her mental and emotional relationship toward Simon was corroborated by a Dr. John T. Holbrook, M. D., a psychiatrist who had examined her and who testified about these matters. Although she had studied business and accounting courses in school, she was yet emotionally unstable, which instability prevailed over what training and knowledge she may have possessed. Moreover, she had for most of her life prior to meeting the Defendant led a sheltered existence, first at home and later at college, and had never before been confronted with the harsh realities of life. Of course all of these aspects of the case were hotly disputed by the Defendant-Appellant.

On February 12, 1973, the parties signed a so-called “letter agreement” dated January 25, 1973, which had been prepared by Simon’s attorney, and which purported to settle the property problems between the parties. This instrument will be hereinafter referred to as the “letter agreement”, and reads as follows:

January 25, 1973

Miss Sandra Perry

Re: Letter Agreement, Loan Settlement

Dear Sandy:

If acceptable to you, this letter will serve as our agreement concerning the repayment by men to you of the sum of $45,000, plus interest. As you know, you have loaned or expended the sum of $45,000 in my behalf in connection with the purchase of the premises occupied by me as a residence, same being legally described as:

BEING LOT 13 in BLOCK 1/5544 of INWOOD PARK ESTATES, an Addition to the City of Dallas, according to map thereof recorded in Volume 801, Page 1758, Map. Records of Dallas County, Texas.

In addition to the obligation I have with you, there is a lien outstanding against said property in the principal sum of $60,000 payable to the order of First Federal Savings and Loan Association of Dallas, Dallas, Texas, which was executed by you at the time this house was purchased.

In addition to your returning to me certain other documents and titles, which I acknowledge receipt of, our agreement in connection with the S45,000 is as follows:

1. I acknowledge the advance by you in my behalf in the sum of $45,000, and my obligation to repay same to you.

2. I agree to pay said amount in full;on or before three (3) years from the date of execution hereof. ⅛ ...-1 .... .... Said obligation will be evidenced- by a note executed by me if desired by you.

3. Upon repayment by me to you of the aforementioned $45,000 you agree to assign and convoy to me all of your right, title and interest in the above described real property and to do all things reasonably necessary to transfer title thereto to me and to assist in my assuming the loan outstanding against said property.

If the foregoing is satisfactory and meets your approval, I will appreciate your so indicating in the space provided below, and upon your so acknowledging it is agreed between us that this letter shall then constitute a valid and binding contractual agreement.

Thereafter, on June 26, 1973, Sandra went down to a bank at Simon’s request and transferred the title of the Jaguar over to Simon’s name. Then on September 12, 1974 at his request she transferred the title of the Rolls Royce over to Simon’s name. She testified that he told her that signing these papers had something to do with the insurance on these automobiles, and that she did not know that she was transferring the titles over in his name. Simon denied that he made any such representations to her.

At some time after their separation of August 1972, and before this suit was filed in November 1974, each of the parties married third parties. Sandra married a man named Watson, hence the name used by her in this litigation. The record does not show whom Simon married.

Trial was to a jury, which found:

(1) That Plaintiff executed the letter agreement as the result of undue influence by the Defendant;

(2) That she executed the letter agreement as the result of duress by the Defendant;

(3) That she executed the letter agreement as a result of Defendant’s fraud;

(4) That she transferred the title to the Rolls Royce as the result of fraud by the Defendant;

(5) And as the result of undue influence by the Defendant;

(6) And as result of duress by the Defendant;

(7) That she transferred the title of the Jaguar to Defendant as the result of fraud by the Defendant;

(8) And as the result of undue influence by the Defendant;

(9) And as the result of duress by the Defendant;

(10) The jury failed to find that Plaintiff had made a gift to the Defendant of the household goods, furniture and furnishings at the Lake Hill Court property;

(11) That Plaintiff made payments to or for the Defendant other than the $35,000.00 paid for the Rolls Royce and the $20,000.00 paid for the house improvements;

(12) in the amount of $20,000.00.

Pursuant to and in harmony with the jury verdict, the trial court entered in favor of Plaintiff-Appellee Sandra Watson against Defendant-Appellant Jim Simon, which judgment contains the following:

(1) The court found as a matter of law that there was no consideration for Plaintiff’s execution of the letter agreement, and that such agreement is void and unenforceable. Appellant has assigned no error to this finding by the trial court.

(2) That the Defendant is judicially es-topped to assert any right to ownership of or title in the Lake Hill Court property or any improvements thereon, or to the furniture, furnishings, or accessories therein as a matter of law. Appellant has assigned no error to this finding by the trial court.

(3) Plaintiff was awarded title to the Lake Hill Court property, together with all improvements thereupon, subject to the existing lien against said property.

(4) Plaintiff was awarded title to the Rolls Royce and Jaguar automobiles, subject to the existing lien against same.

(5) The letter agreement was held to be null and void.

(6) Plaintiff was awarded title and possession of the furniture, furnishings and accessories located in the Lake Hill Court property, exclusive of Defendant’s clothing and toilet articles.

(7) Plaintiff was awarded judgment against Defendant in the amount of $75,-000.00 and costs.

From this judgment the Defendant-Appellant appeals on thirty-one points of error. We overrule all of Appellant’s points and affirm the trial court’s judgment.

By Appellant’s points nine through twenty-six, inclusive, and twenty-nine and thirty, Appellant challenges the legal and factual sufficiency of the evidence supporting the jury’s answers to Special Issues one through nine, inclusive, as hereinabove set out, wherein the jury found that Plaintiff executed the letter agreement and titles to the Rolls Royce and Jaguar as the result of undue influence, duress, and fraud on the part of the Defendant. Appellant also challenges the legal and factual sufficiency of the jury’s answer of $20,000.00 to special issue No. 12 as the amount of money Plaintiff had paid to or for the Defendant over and above the $35,000.00 for the Rolls Royce and $20,000.00 paid for the house improvements. We overrule all these points of error. We have carefully examined the entire record as we are required to do, for a determination of these matters, and find that the evidence is legally and factually sufficient to support the jury’s answers. We have hereinabove outlined and summarized the Plaintiff’s evidence showing the comparative experience of the parties and their mental and emotional relationship to each other, and his domination and control over her and her money, all of which is legally and factually sufficient to support the jury’s findings of undue influence, duress, and fraud on Defendant’s part. There were many financial transactions between the parties, and between them and third parties, as evidenced by a 1073 page statement of facts and countless exhibits. As stated before, the evidence was hotly disputed. However, the jury had the right under this record to resolve these disputes in favor of the Plaintiff-Appellee, which they did.

With reference to the jury’s answer of $20,000.00 to special issue No. 12, as monies paid by Plaintiff over and above the $35,000.00 for the Rolls Royce and $20,-000.00 for real estate improvements: this finding is well within the range of the record. Without detailing all of the transactions, we have hereinabove detailed transactions wherein the Defendant caused Plaintiff to pay out approximately $100,-000.00 to him or in his behalf. Therefore, the jury’s finding of $20,000.00 is supported by legally and factually sufficient evidence.

Appellant contends the trial court erred in permitting Plaintiff-Appellee to file a trial amendment on the day the trial commenced and immediately before the trial started, setting up a claim for the contents of the Lake Hill Court property. The Defendant levelled a special exception to paragraph IX of Plaintiff’s pleadings, which exception was sustained and leave was granted Plaintiff to amend for sake of clarity; whereupon Plaintiff filed a trial amendment clarifying the monies advanced to the Defendant and in addition thereto alleged that she was the owner of the contents in the Lake Hill Court property. To this the Defendant filed a motion to strike these pleadings alleging surprise. We overrule this point of error for two separate and distinct reasons:

(1) Because we believe in paragraphs X and XIII of Plaintiff’s pleadings as they existed prior to the trial amendment, that plaintiff had already prayed for a recovery of the house contents, and thereby Defendant was already on notice that he was required to defend against this claim.

(2) Because in view of the court’s finding in the judgment that Defendant was judicially estopped to assert any rights in the house contents, of which action no complaint is made by Appellant on appeal, any error that existed by the trial court’s permitting Plaintiff’s trial amendment is moot. The filing of a trial amendment is within the sound discretion of the trial court, and unless the trial court clearly abuses that discretion, no reversible error is shown. Rule 66, Texas Rules of Civil Procedure; Victory v. State (Tex.1942) 138 Tex. 285, 158 S.W.2d 760. Also see Westinghouse Electric Corp. v. Pierce (Tex.1954) 153 Tex. 527, 271 S.W.2d 422.

Appellant’s next complaint is the refusal of the trial court to permit him to file a trial amendment setting up the two year statute of limitation concerning the house contents and all monies advanced to Defendant-Appellant by Plaintiff-Appellee in excess of $55,000.00. Defendant offered this trial amendment after both sides had rested, the testimony was closed, and the jury recessed until the next morning for jury argument. The case had been tried-without reference to any statute of limitations, and had the trial court permitted the filing of this trial amendment, it would have changed the complexion of the trial and would have necessitated the production of additional testimony, the length and amount of which is uncertain. In the language of our Supreme Court: “To require the trial court to permit amendments such as the one filed in this case would disrupt orderly procedure and lead to frequent interruptions and interminable delay in concluding expensive jury trials.” Westinghouse Electric Corp. v. Pierce (Tex.1954) 153 Tex. 527, 271 S.W.2d 422; King v. Skelly (Tex.1970) 452 S.W.2d 691 (wherein the trial amendment was offered after the evidence had closed, but before the draft of the court’s charge had been submitted to the counsel for the parties to review). Here again, insofar as the house contents in the case at bar are concerned, the trial court’s finding (in the judgment) of judicial estop-pel against Defendant-Appellant renders Defendant’s trial amendment moot.

Appellant complains of the admissibility of the testimony of Dr. John T. Hol-brook, M.D., a psychiatrist, asserting that his testimony invaded the province of the jury. We overrule this contention. Dr. Holbrook testified that he examined Plaintiff-Appellee on two occasions for a total of four hours about a week prior to the trial; that in these examinations he went into Plaintiff’s relationship with Defendant; that the sum and substance of the doctor’s testimony was that she had originally fallen in love with the Defendant and had hoped the relationship would lead to marriage; that she in time developed a sense of fear toward Defendant; that Defendant dictated to her and caused her to do things she ordinarily would not have done, such as her manner of dressing and becoming isolated from her family and friends. For example, Defendant prevailed upon her to have surgery wherein injections were made into her breasts to have them enlarged, he having told her he did not like flat-chested women. Dr. Holbrook testified that the turning point came in their relationship when her money ran out, at which time her desperation and confusion began to increase; that Plaintiff told the doctor that about this time she had long episodes of crying and being hysterical with tendencies toward suicide from time to time; that in light of this background of the relationship between the parties, she would have signed anything that Defendant Simon put in front of her without regard to her free will, and that this state of mind of Plaintiff existed at the time she signed the letter agreement as well as at the time she signed the papers transferring the titles to the Jaguar and the Rolls Royce. In summary, Dr. Hol-brook’s testimony supports the jury’s findings of undue influence, fraud, and duress at the times she signed the letter agreement and transfers of car titles. The doctor also testified that in his opinion she was truthful and honest with him in his evaluation of her and told him the truth “as she understood it” during the examinations, and that he was concerned with whether she was honest with him in these examinations rather than whether she told the truth in this lawsuit.

Appellant’s chief complaint about Dr. Holbrook’s testimony is the part wherein he testified that in his opinion the Plaintiff was being honest with him, for the stated reason that this invaded the province of the jury. We see no error in the admissibility of Dr. Holbrook’s testimony, since as a qualified expert in psychiatric matters he had the right to give his expert opinion on Plaintiff’s honesty concerning the examinations. See Carr v. Radkey (Tex.1965) 393 S.W.2d 806.

As stated before, the trial court made two findings in its judgment which are not challenged by Appellant, to wit: (1) That there is no consideration as a matter of law for Plaintiff’s execution of the letter agreement, and that said agreement is null and void, and (2) that the Defendant is judicially estopped to assert any right to ownership of or title in the Lake Hill Court property, the improvements thereupon, and the furniture and furnishings therein. Since these findings are not challenged, they stand, and Appellant has waived any right to complain of them. Rule 418, Texas Rules of Civil Procedure; State Farm Mutual Automobile Insurance Co. v. Cowley (Tex.1971) 468 S.W.2d 353; Gibson v. Hines (Waco CA 1974) 511 S.W.2d 546, no writ.

Appellant has other points and contentions. We have carefully considered each one of them and find that none present reversible error. All are overruled.

Judgment of the trial court is therefore affirmed.

AFFIRMED.


author: CRITZ, J. OURETON, C. J.

text:
    DENNY et al. v. WHITE HOUSE LUMBER CO. et al.
    No. 1590—5964.
    Commission of Appeals of Texas, Section A.
    Nov. 9, 1932.
    Will Crow, of Canadian, for plaintiffs in error.
    Hoover, Hoover & Cussen, of Canadian, for defendants in error.
   CRITZ, J.

This suit was instituted in the district court of Ochiltree county, Tex., by White House Dumber Company and Gibson Supply Company, both corporations, and one H. E. Hoover, against Charles Denny, Jr., and J.' W. Denny, to recover the title and possession of certain alleged personal property. The property in question is described in the judgment of the district court as follows: “One standard drilling rig complete, 259 feet of 5½ in. casing, 649 feet of 12½ in. casing, 3 joints of 12½ in. casing, 4 joints of 89 ft — 19 inch casing, 1 — 259 bbl steel tank, 1 — 259 bbl wood tank, 2,969 feet 19 inch casing, 1- — 6 horse power Novo pump and engine, 2,599 feet two-inch pipe, 699 feet of 1 inch pipe, Galvanized boiler housing.”

Trial in the district court with a jury resulted in a verdict and judgment for the plaintiffs, White House Dumber Company et al. On appeal by the Dennys, this judgment was affirmed by the Court of Civil Appeals. 49 S.W.(2d) 259. The Dennys bring error.

For convenience, we will hereafter refer to the parties as they appeared in the district court, to the White House Dumber Company et al. as plaintiffs, and to Charles and J. W. Denny as defendants.

' It seems from the record before us that on the 3d. day of July, 1926, one S. R. McOorkle, doing business under the name of McOorkle Pipe Dine Company, and the defendants, entered into a written^ well-drilling contract, -by the terms of which defendants agreed and bound themselves to drill a well in search of oil on section 471, in 'block 43, Houston & Texas Central Railway Company, Ochiltree county, Tex., to a depth óf 3,599 feet, unless oil or gas was found at a lesser depth. The contract provided that defendants should receive the sum of $5.59 per foot for drilling such well, payable 59 per cent, on the completion of each 599 feet and the remainder on the completion of the well. The contract contained other provisions not necessary to mention here. We call attention, 'however, to the following clauses of said contract:

“First party, (McOorkle) has employed second parties (defendants) to drill a deep test well in search of oil and gas on the location hereinafter described as follows:” (Here follows description of land on which well is to be drilled.) * * *

“First party shall furnish the rig, the fuel, water and casing necessary fdr the drilling of said well, and compensate second party for drilling the well as follows:” (Here follows stipulations as to compensation.)

The above contract was filed for record in the office of the county clerk of Ochiltree county, Tex., on November 2, 1926, about four months, lacking three days, after its execution. Also the defendants filed an affidavit purporting to be in compliance with subdivision 2 of article 5453, R. O. S. 1925. We shall refer to these matters later.

It seems from tlie record before us that the property was sold to McCorkle by different ones of the above plaintiffs, and none of it was ever paid for by him. The 2,060 feet of 10-inch casing was sold to McCorkle by the plaintiff Gibson Supply Company as a cash transaction. McCorkle gave his check therefor at the time it was sold and delivered to ‘him. The check was. worthless and never paid.

Before the filing of the above contract and. affidavit in the office of the county clerk, and before the defendants had obtained a judgment against McCorkle, which we will later discuss, McCorkle sold, delivered, and returned all of the above property to the plaintiff. The sale of the above property by McCorkle to the plaintiffs is evidenced by bill of sale duly executed, except the 2,060 feet of 10-inch easing. This property was returned because it was bought for cash and not paid for.

After the happening of • the above events, that is, after the signing of the original contract between defendants and McCor-kle, the filing of the same with affidavit in the office of the county clerk, the sale and delivery of the above property by McCorkle to the plaintiffs, and the return of the 2,060 feet of 10-inch casing, defendants sued McCorkle and these plaintiffs in .the district court of Ochiltree' county, Tex. In that suit we infer these defendants sought recovery as for debt against McCorkle under the above-mentioned well-drilling contract, and further sought a foreclosure of an asserted contractors’ and laborers’ lien on the property in question here, together with certain other properties not involved. The foreclosure was sought against all the defendants in that suit. The plaintiffs in this suit, who were defendants in that suit, were later dismissed therefrom, and judgment was finally entered for these defendants against McCorkle alone for their alleged debt, with foreclosure of their asserted lien on ’ the properties above described. Later order of sale was issued on that judgment, and the property sold and bought in by the defendants. As already shown, these plaintiffs were dismissed from that suit, and are certainly not bound by that proceeding.

After the happening of the above1 events, this suit was filed by White House Lumber Company et al. against Charles and J. W. Denny to recover the above property which they seemed to have come into possession of by virtue of the proceedings in the suit against McCorkle.

Both plaintiffs and defendants claim the property in dispute here by virtue of the facts above detailed.

Defendants complain of the holding of the Court of Civil Appeals to tlie effect that McCorkle never became the owner of the 2,-060 feet of 10-inch casing and therefore no lien ever attached in their favor thereon. We sustain the holding of the Court of Civil Appeals as to such property. As ■ already shown, the Gibson Supply Company sold this casing to McCorkle as a cash transaction. McCorkle gave his check therefor at the time it was purchased by and delivered to him. The check was worthless and never paid. Under such a record the title to this casing remained in the vendor, Gibson Supply Company, and never passed to McCorkle. Lang et al. v. Rickmers, 70 Tex. 108, 7 S. W. 527. This being the case, no lien could attach thereto in favor of defendants on a claim against McCorkle. Th'is is in harmony with the holding of the Court of Civil Appeals, and disposes of the 2,060 feet of casing in question.

Defendants are claiming a lien on the property above described under chapter 3 of title 90, article 5473 et seq., R. C. S. 1925. It will be noted that the lien provided for in chapter 3, supra, in favor of contractors, laborers, etc., is, by express terms of article 5476, chapter 3, fixed and secured in the manner as pro-yided for in article 5453, chapter 2, of title 90, supra. The portiop of article 5453 which concerns us here reads as follows:

“The lien provided for in Article 5452 may be fixed and secured in the following manner:
“1. Every original contractor, within four months, and every journeyman, day laborer, or other person, within three months after the indebtedness accrues, shall file his contract in the office of the county clerk of the county where the property is situated to be recorded in a book kept by the county clerk for that purpose.
“2. If a journeyman, day laborer or other person has no written contract, it shall be sufficient to file an itemized account of the claim supported by affidavit showing that the account is ‘just and correct and that all just and lawful offsets, payment and credits known to affiant have been allowed.”

The above article contains a third subdivision, but it does not concern us in.this case.

As shown by the statement we have made, the defendants filed their contract with Mc-Corkle .in the office of the county' clerk of Ochiltree county within four months from the time it was made, and within four months from the time their indebtedness against Mc-Corkle accrued. Also at the same time they filed an affidavit attempting to cbmply with the provisions of subdivision 2 of. article 5453, supra. The Court of Civil Appeals holds that, since this affidavit was insufficient to meet the requirements of subdivision 2 of article 5453, no lien was ever .fixed or secured in favor of defendants against McCorkle or the property here in dispute. It is evident from the statement contained in the opinion of the Court of Civil Appeals that the affidavit in question was in several particulars insufficient to fix or secure a lien under subdivision 2 of article 5453. In this respect the opinion of the Court of Civil Appeals is in absolute harmony with the opinion of the Supreme Court in the case of Ball v. Davis, 118 Tex. 534, 18 S.W.(2d) 1063.

It is contended by defendants that, even if it be admitted that the affidavit above discussed was insufficient to comply with subdivision 2, supra, nevertheless, they had a valid lien on the property in question by the filing of their contract at the time and in the manner above shown. In other words, defendants contend that under the provisions of subdivision 1 of article 5453, they fixed and secured their Hen by filing the written contract between them and McCorkle, and that it was not necessary for them to make and file the affidavit provided by subdivision 2 of the same article.

A reading of the statute, article 5453, discloses that it provides that the lien created by article 5473 shall 1¾⅞ fixed and secured:

(1) By filing the contract in the office of the county clerk of the county where the property is situated. This article requires the contract to be filed within- four months by every original contractor, and within thirty days by every journeyman, day laborer, or other person, from the time the cause of action accrues. Subdivision 1 has been amended (Acts 1929, c. 478, § 1 (Vernon’s Ann. Civ. St. art. 5453, subd. 1) so that three months is substituted for thirty days as contained in the codified article. This amendment does not affect this ease.

(2) If there be no written contract, it is sufficient to file an itemized account of the claim supported by affidavit showing certain things.

The Court of Civil Appeals seems to hold that since the contract between the defendants and McCorkle contains no express lien it was necessary, in order to fix a lien under article 5453, to file an affidavit under subdivision 2 thereof. We disagree with this holding.

If subdivision 1 of article 5453 refers to contracts containing express liens, it is absolutely superfluous and accomplishes nothing. The very ability to contract has always given that right, and, where the lien is expressly given in the contract, it exists independently of the statute. It is therefore evident that under subdivision 1 of the statute the mere filing of the written contract is all that is necessary to fix and secure the lien created by article 5473. Of course in order to bind third parties under such a lien, the contract must be sufficiently definite to give notice as to the debt and lien sought to be fixed. In other words, it must identify the property, and the debt secured thereby, or contain sufficient information to put third parties on inquiry.

The above construction of subdivision 1, art. 5453, supra, is fortified and made certain by the very wording of subdivision 2 of the same article. The latter subdivision, by its very terms, limits its application to cases where the person seeking to fix or secure the lien “has no written contract." (Italics ours.) In other words, subdivision 2 limits its application to oral contracts. It follows, therefore, that, if defendants in this case could not fix and secure their lien by filing their contract, then there was no way for them to do so. Ffom what we have said, it is evident that we hold that the filing of the written contract between defendants and McCorkle was all that was necessary, as between him and them, to fix the lien created by article 5473. We therefore hold that, if such contract is sufficiently definite to put third parties on notice as to the debt and lien sought to be fixed and secured, then it is binding on these plaintiffs.

When we come to examine the contract, we find that it contains provisions which are sufficiently definite to identify the land on which the work was to be done, the price of the work, kind and character thereof, and the-, kind and character of machinery and other property required for its accomplishment. It therefore contains information as to where such property would fee located in order to be used in the drilling of the well. We think all this was sufficient to put plaintiffs on inquiry and to charge them with the result of such inquiry had the contract .been of record at the-time they purchased the property in question. This brings us to a decision of the question as to whether plaintiffs are affected by a written contract filed for record after they purchased the property In dispute here.

With reference to the above, it is undisputed that the defendants filed their contract with McCorkle for record on November 2, 1926. It is also undisputed that the property in dispute here was sold to the plaintiff's by McCorkle on or about October 27, 1926. We think the record further shows that the plaintiff has no actual knowledge or notice as to-who had drilled the well or anything else in regard to the contract between defendants and McCorkle at the time they purchased this property. We infer that the plaintiffs did know or were charged with knowledge that some one had done the work.

In the above state of the record the defendants contend that, when they filed their contract for record and thereby fixed and secured the lien created by article 5473, supra, same related back to the date of its inception, and plaintiffs were charged with notice thereof. AVe sustain this contention. Trammell v. Mount, 68 Tex. 210 4 S. W. 377, 379, 2 Am. St. Rep. 479; Keating Imp., etc., v. Marshall Elec., etc., 74 Tex. 605, 12 S. W. 489.

We quote the following from the opinion by Judge Willie in the Trammell Case, supra: “The lien of a mechanic, though not fixed before record of the contract or bill of particulars, when it is fixed, relates hack to the time when the work was performed or the material furnished, and hence takes precedence of all claims to the property improved which have been fastened upon it since that time. This is the effect of the previous decisions of this court. Huck v. Gaylord, 50 Tex. 580; Fagan v. Ice Mach. Co., 65 Tex. 331. The registration does no more than preserve a lien which exists already. There was no error in overruling the motion for a new trial. The appellants allowed the witness to give his testimony without being sworn, and thereby waived any objections to it on that account.”

In the Keating Case, supra, our Supreme Court, speaking through Judge Henry, referred to and quoted with approval, the lan-. guage in the opinion in the Trammell Case which we have quoted above.

We recommend that the judgments of the Court of Civil Appeals and the district court, in so far as they award to the plaintiffs the '2,060 feet of 10-inch casing, be affirmed, but that in all other''respects the judgments of iboth lower courts be reversed, and the cause remanded to the district court for a new trial.

OURETON, C. J.

The judgments of the district court and Court of Civil Appeals are both affirmed in part and in part reversed and remanded, as recommended by the Commission of Appeals.

We approve the- holdings of the Commission of Appeals on the questions discussed in its opinion.


author: LATTIMORE, J. HAWKINS, J.

text:
    CURRY v. STATE.
    No. 15488.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Rehearing Denied Nov. 23, 1932.
    Watson & Spears, of San Antonio, for appellant.
    Delos Pinch, Asst. Dist. Atty., of San Antonio, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for attempt to commit burglary; punishment, two years in the penitentiary.

The record is here without any statement of facts. Appellant moved to quash the indictment. Same alleges that the accused “did by force, etc., attempt to break and enter a house, etc., in this that said Travis did then and there attempt to break open the door of said house.” In Jones v. State, 53 Tex. Cr. R. 470, 110 S. W. 748, this court held an indictment good which charged the accused with attempting to burglarize a ■house “by attempting by force to raise a window” of said house. We see no substantial difference. The Jones Case was approved and followed by us in Ash v. State, 93 Tex. Cr. R. 189, 245 S. W. 927.

It was fully charged in the indictment herein that the attempt to break and enter the house was with intent to commit theft. Whether these allegations were supported by testimony,, on the trial would depend on the facts, a statement of which appellant seems to have failed to bring forward.

If there was error, as contended by appellant, by the use of the word “felony” in that part of the court’s charge wherein the jury were told to convict appellant if they found he attempted to enter the house in question with intent to commit a felony, or the crime of theft as alleged in the first count of the indictment — same was cured and rendered harmless by the verdict of the jury which specifically found appellant guilty “as charged in the first count of the indictment” ; it being alleged in said count that appellant attempted- to enter said house with intent to commit theft. The judgment and sentence were for guilt of attempting to break with intent to steal.

We cannot agree with appellant’s complaint of the court’s charge upon accomplice testimony which, while in form somewhat different from that ordinarily used, pointedly told the jury that, before they could convict, the .testimony of the accomplice, together with the other testimony, must establish beyond a reasonable doubt that appellant was guilty of the offense.

Being unable to agree with any of appellant’s contentions, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

As stated in the original opinion, the first count of the indictment charged in appropriate language an attempt to break into the house at night with intent to commit theft. In defining burglary, the court told the jury it was constituted by entering a 'house by force at night with intent to commit a felony or theft. This, of course, was a correct general definition of burglary under the statute. Articles 1389 and 1390 of the Penal Code. The indictment contained no count charging.that the attempted burglary was with intent to commit a felony. In applying the law to the facts, the court instructed the jury to find appellant guilty if he attempted to enter the house with the intent to “commit a felony or the crime of theft.” ' Written objection was filed to that part of the instruction using the term “felony.” The court should have stricken it from the instructions because no such averment was in the indictment. However, we are unable to see how the error complained of could work harm to appellant. It is-true, if the evidence raised the issue that the entry of the house was with intent to commit some crime which was a “felony,” then it might be urged that the failure of the court to. correct the charge in response to the objection resulted in injury to appellant. In the absence of a statement of facts-, this court, of course, has no knowledge of what the evidence disclosed. We cannot presume that it raised any such issue as burglary with the intent to commit a felony without which the error in the charge appears harmless. Article 666, O. C. P., provides that a reversal shall not be awarded because of an error in the charge unless it was calculated to injure the rights of accused. Application of this principle in the present case we think calls for overruling the motion for rehearing, and it is so ordered.


author: CHRISTIAN, J.

text:
    DAVIS v. STATE.
    No. 15577.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Rehearing Denied Nov. 23, 1932.
    E. P. Hall and R. Loftin, both of Henrietta, for appellant.'
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is possession of a still for manufacturing intoxicating liquor; the punishment, confinement in the penitentiary for one year.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


author: LATTIMORE, J.

text:
    HANNA v. STATE.
    No. 15309.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1932.
    Williams & Williams, of Mt. Pleasant, for appellant.
    Uoyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for theft; punishment, five years in the penitentiary.

About the 27th of December, 1931, a new car of the value of $500 was taken from in front of the residence of its owner in Mount Pleasant. The car was later recovered and identified. An officer of Tyler, Tex., testified that about the first of January, 1932, lie arrested appellant in Tyler, and that appellant was driving the car later identified as the one here in question. No explanation of appellant’s possession seems to have then been made. Appellant took the witness stand in his own behalf and testified that he was in Muskogee, Okl., and met a friend who had the car in question, and this man wanted $400 for it, and appellant said he bought it, paying $200 down, and that he and the man referred to came together to Tyler in the car. No one else testified for the defense. The court’s charge appropriately submitted the issue thus raised. The verdict of the jury settled same against appellant. The possession of recently stolen property has many times been held a sufficient circumstance to justify the conclusion that said property was stolen, and that its possessor was the thief.

No bills of exception were taken to the introduction of any testimony. In his motion for new trial and on appeal appellant complains because the state’s attorney was permitted to ask, and did ask, him while on the witness stand if he had not 'been charged with various felonies at times prior to the one under investigation. While the matter is not properly brought up for our consideration, we might observe that it is the uniform practice in this court to uphold the admission of such testimony as that referred to, as affecting the credibility of the accused as a witness.

Binding no error in the record, the judgment will be affirmed.


author: HAWKINS, J.

text:
    BULLOCK v. STATE.
    No. 15351.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1932.
    C. E. Florence and Edwin M. Fulton, both of Gilmer, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for assault with intent to rape; punishment being two years in the penitentiary.

The main insistence before this court is that the evidence was not sufficient to support a conviction for assault with intent to rape. We find it unnecessary to consider that question.

Our attention has been called to the form of the indictment. That part of the statutory definition of rape (article 1183, P. O.) applicable to the present ease provides that rape is: “* ⅜ * The carnal knowledge .of a female under the age of eighteen years other than the wife of the person with or without her consent and with or without the use of force, threats or fraud.” The language “other than the wife of the person” accused being a part of the very definition of one character of rape denounced by the statute, it follows that, where the state relies upon that phase of the rape statute, which it does in this case, it is necessary to allege in the indictment charging that character of rape or assault with intent to rape that the female was not the wife of accused. The charging part of the present indictment alleges only that appellant “in and upon Jewell Rumsey, a female uhder the age of eighteen years, did make an assault with the intent then and there to commit the offense 'of rape upon the said Jewell Rumsey, hy then and there attempting to have carnal knowledge of her.” There is no averment that prose-cutrix was not the wife of accused. The indictment is exactly like that found in Dudley v. State, 37 Tex. Cr. R. 543, 40 S. W. 269, which was held fatally defective. To the same effect is Edwards v. State, 37 Tex. Cr. R. 242, 38 S. W. 996, 39 S. W. 368; Rice v. State, 37 Tex. Cr. R. 36, 38 S. W. 801; Sproulen v. State, 97 Tex. Cr. R. 561, 262 S. W. 757. Under the defective indictment, only one order can follow.

The judgment is reversed, and the prosecution ordered dismissed.