text:
    STATE of Missouri, Plaintiff-Respondent, v. Wilburn BELLEW, Defendant-Appellant.
    No. 11025.
    Missouri Court of Appeals, Southern District, En Banc.
    Aug. 30, 1979.

      John D. Ashcroft, Atty. Gen., M. Hillel Finkelstein, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Richard L. Parker, Asst. Public Defender, Vienna, for defendant-appellant.
   PREWITT, Judge.

Defendant appeals from his fourth conviction of driving a motor vehicle while intoxicated. Section 564.440, RSMo 1969. He was sentenced to three years imprisonment.

Defendant makes one point on appeal. He contends that the trial court erred in allowing the prosecuting attorney to state in the final part of his closing argument: “There was no evidence of a Breathalyzer examination because that man refused to take one. That’s why there’s not one. Can’t present it if he won’t blow into the machine.” The state answers that the comments were justified in refuting this argument of defendant’s trial attorney:

“Secondly, what did the defendant testify to? He said he took two pain pills which he got from a doctor that day and he took them with beer, which is probably not the most smart thing to do. But we don’t know what effect that might have. We don’t have any percentage tests in this case to know what his blood-alcohol content was; no Breathalyzer test; we have no such evidence at all. Was this man intoxicated? That’s the question.”

There was no evidence of a refusal to take the breathalyzer test. Such evidence has been held inadmissible. City of St. Joseph v. Johnson, 539 S.W.2d 784, 787 (Mo.App.1976). Defendant, in the trial court, or here, did not argue that there was no refusal, but that it was not in evidence. Defendant is correct that the prosecutor’s comments were more than just retaliatory argument. They were a statement of fact.

The cases generally hold that a prosecutor may not argue matters not in evidence. State v. Hooker, 536 S.W.2d 487, 489 (Mo.App.1976); State v. Fox, 510 S.W.2d 832, 838 (Mo.App.1974). However, where the argument complained of is retaliatory in nature, and invited by remarks of defendant’s counsel, a claim of error will not be sustained. State v. Knighton, 518 S.W.2d 674, 681 (Mo.App.1975). Defendant’s counsel did not merely refer to a lack of evidence of intoxication, but specifically referred to “no Breathalyzer test”. The prosecutor can go further by way of retaliation than in the first instance, and the trial court has considerable discretion in permitting the use of retaliatory arguments. State v. Knighton, supra, 518 S.W.2d at 681. Other cases so holding are collected at 9A Mo.Digest, Criminal Law Key Number 726. The retaliatory statements of prosecutors have often been upheld as argument or illustration, but some cases have allowed factual statements outside the record. In State v. Tehee, 445 S.W.2d 285, 287 (Mo.1969), the prosecutor, in referring to identification of defendant at lineups, said that witnesses were asked: “Did the police officer tell you which one it was, make any suggestion to you at all? No, sir.” It was urged that there was no such evidence and that this was a prejudicial misstatement. On appeal the court found that this argument was retaliatory in replying to defense arguments regarding the lineups and was not manifestly inflammatory or unfair. The trial court was found not to have abused its discretion in failing to sustain an objection to the argument and in denying a request for new trial. In State v. Granberry, 484 S.W.2d 295 (Mo. banc 1972), the defense, in closing argument, challenged the state for not calling an officer who had questioned the defendant. In response, the prosecutor replied that this particular officer had been shot. On appeal it was held that if such comment was improper, it was invited error of which the defendant could not complain.

Defendant’s counsel must have thought the argument that there was no breathalyzer test evidence to his client’s advantage. The jurors had to know there was no such evidence. It was a short and uncomplicated trial. Counsel may have wanted to plant some- inference in their minds as a result of there being no breathalyzer evidence. For whatever reason the comment was made, he could assume that it would bring a response. If the prosecutor’s comments were improper, they were created by invited error. State v. Granberry, supra, 484 S.W.2d at 301. The trial court did not abuse its discretion in overruling the objection and denying a new trial.

A finding that the comments were not invited error, would not have entitled appellant to a new trial. A statement by a prosecutor referring to facts not in evidence does not necessarily create reversible error. In such instances the court should consider the entire record to determine if they were sufficiently prejudicial to have denied defendant a fair trial. United States v. LeFevre, 483 F.2d 477, 479 (3d Cir. 1973); State v. Bailey, 526 S.W.2d 40, 43 (Mo.App.1975). Previous to counsel’s arguments, the jury was instructed that closing arguments were intended to help the jury in understanding the evidence and applying the law, but were not evidence. Defendant’s counsel so reminded the jury in his argument. The prosecuting attorney did not call upon the jury to make an inference of guilt from the refusal to take the breathalyzer test or infer that the breathalyzer test would have established that defendant was guilty. He likely sought to answer the argument of defense counsel; perhaps to correct any improper inferences he thought defense counsel had established. The comments were not such that would inflame the prejudices or excite the passions of the jury against the defendant. They were apparently true.

The defendant does not challenge the sufficiency of the evidence. It was more than sufficient that there was erratic driving and impaired ability. At trial defendant did not dispute the improper driving, but tried to contend that it was caused by taking two prescription pain pills with half a can of beer. He admitted to a “past” drinking problem and three previous convictions for driving while intoxicated. A police officer and highway patrolman both testified as to defendant’s inability to perform physical sobriety tests. Defendant’s speech was slurred and he had a strong smell of intoxicants on his breath. Both officers believed defendant to be intoxicated. The record indicates that it would have been highly unusual for the jury to have acquitted him based on the evidence. Error which in a close case might call for reversal may be disregarded as harmless where the evidence of guilt is strong. State v. DeGraffenreid, 477 S.W.2d 57, 65 (Mo. banc 1972). In State v. Green, 534 S.W.2d 600, 602-603 (Mo.App.1976), the prosecutor argued that if the defendant was acquitted he would return to the business of forgery. These comments were held not prejudicial as they were phrased in mild language and there was strong evidence of guilt.

We have examined the record in the case and believe that the evidence was such that defendant’s rights were not prejudiced. He is not entitled to a perfect trial — just a fair one. State v. Bailey, supra, 526 S.W.2d at 42. We believe the error, if any, was invited, and defendant cannot complain of it. We also find that the comments, even if error, were not so prejudicial under the circumstances of this case as would deprive defendant of a fair trial.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: HARBISON, Justice. FONES, Justice,

license: Public Domain

text:
    Herschel HAWKINS and Thomas Woods, Petitioners, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Sept. 13, 1979.
   OPINION AND ORDER ON PETITION FOR COMMON-LAW WRIT OF CERTIORARI

HARBISON, Justice.

A petition for the common-law writ of certiorari was presented to a member of the Court and subsequently oral argument was heard by the entire court. The single issue which we consider to be properly before us is whether Article 6, § 11 of the Tennessee Constitution requires a trial judge to recuse himself from hearing a motion to suppress a search warrant which he has previously issued.

It has long been provided by statute that the magistrate who issues a search warrant may hear and determine any contest concerning its validity or the grounds upon which it was issued. T.C.A. § 40 — 514. Necessarily, this requires the magistrate to review his own judicial act in issuing the warrant, and it may involve his reconsidering evidence heard at the ex parte hearing. It has not previously been considered, however, that T.C.A. § 40-514 was itself unconstitutional, or that the issuing magistrate was constitutionally disqualified from performing the duties expressly required of him thereunder.

In the recent case of State v. Little, 560 S.W.2d 403 (Tenn.1978), this Court reaffirmed the principle that the issuing official may pass upon motions to suppress or other questions concerning the validity of the warrant. It was held in that case that the enactment of T.C.A. § 40-519 in 1965 also permitted such questions to be presented at the trial of the case, resulting in an abrogation of the previous rule that only the issuing magistrate could pass upon the validity of the search warrant.

Petitioners rely principally upon Hamilton v. State, 218 Tenn. 317, 403 S.W.2d 302 (1966). In our opinion there is nothing in that case disqualifying the issuing official, as a matter of constitutional law, from subsequently passing upon the validity of a search warrant. In that case an arrest warrant had been issued by a general sessions judge. Subsequently, he was elevated to the criminal court and presided at the trial of the person arrested under the warrant. It was held that the judge could not preside over the trial of the case because of his previous connection with it in a lower court, in contravention of Article 6, § 11 of the state constitution. That article provides:

“No judge of the Supreme or Inferior Courts shall preside on the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by affinity of consanguinity, within such degrees as may be prescribed by law, or in which he may have been of counsel, or in which he may have presided in any inferior Court, except by consent of all the parties.”

The latter clause, pertaining to presiding in an inferior court, was italicized in the opinion in the Hamilton case, and it was noted that T.C.A. § 17 — 201 contained a similar statutory disqualification.

In the Hamilton case, reliance was placed upon Wilson v. State, 158 Tenn. 206, 281 S.W. 151 (1925), which had held that an attorney general who had signed an indictment and prosecuted in a previous trial of the same case could not thereafter sit as judge upon the retrial. The Wilson case, however, was expressly overruled in State ex rel. Roberts v. Henderson, 223 Tenn. 115, 442 S.W.2d 629 (1969), insofar as it held that there could be no waiver of the constitutional disqualification.

In the Henderson case, the Court summarized the holding in Wilson, and noted its broad language concerning the policy of the law prohibiting a disqualified judge from presiding in a criminal case even though the defendant has consented. The Court then commented upon the Hamilton case:

“In Hamilton, in spite of this broad statement, we were not content to rest our decision thereon, but in final analysis rested it on the fact that there was no clear evidence of waiver or consent, and on the possibility that under the record the waiver had been by state appointed counsel and so was state action, not the action of the defendant himself.” 442 S.W.2d at 631.

In our opinion a trial judge who initially issues a search warrant is not thereafter so interested in the cause as to be disqualified under Article 6, § 11. The term “interest” has generally been construed to mean either a direct pecuniary or property interest, or one involving some individual right in the subject matter of the litigation. See Chumbley v. People’s Bank & Trust Co., 165 Tenn. 655, 57 S.W.2d 787 (1933).

It has been expressly held that a circuit judge was not disqualified from presiding at the trial of a criminal defendant for assault with intent to commit murder on the defendant’s wife, because of the fact that the judge had previously presided at a divorce case wherein the wife was granted a divorce from the defendant upon the same facts. King v. State, 216 Tenn. 215, 391 S.W.2d 637 (1965).

It frequently happens in the course of litigation that a trial judge is required to review his own judicial determinations, particularly in post-trial proceedings, both civil and criminal. In our opinion, nothing in Article 6, § 11 or in any related policy of the law precludes his doing so.

The fact that the issuing officer is required to review the evidence upon which a search warrant was issued does not, in our opinion, conflict with the requirement of a neutral and detached magistrate issuing the warrant in the first place. The warrant is frequently issued upon an ex parte hearing. At that point in the proceedings the magistrate must be neutral and detached in evaluating such evidence as has been presented to him. As previously stated, however, at least since 1858 it has been provided by statute that the magistrate not only may, but “must,” proceed to hear testimony if the grounds on which the warrant was issued are controverted. T.C.A. § 40-514. Such a hearing usually would not occur until after a warrant had been issued, executed and returned to the issuing official. T.C.A. § 40—507. The statutes provide that if upon such a hearing it appears that the wrong property was seized “or that there is no probable cause for believing the existence of the ground on which the warrant issued,” any property seized is to be restored to the person from whom it was taken. T.C.A. § 40-515 (Emphasis added).

In our opinion the Criminal judge who issued the warrant in this case has not been shown to be disqualified from presiding over the suppression hearing or any subsequent proceedings involving the property or the accused persons.

The petition for certiorari is denied at the cost of petitioners.

BROCK, C. J., and COOPER, J., concur.

FONES and HENRY, JJ., dissent.

FONES, Justice,

dissenting.

I respectfully dissent.

I agree with the legal principle in the majority opinion and the legal conclusions that the trial judge in this case is not “disqualified” under the constitution or statutes of this state, from presiding over the suppression hearing or subsequent proceedings. Nevertheless, to better serve the appearances of justice in criminal eases, I believe this Court should adopt a judicial rule requiring a judge to recuse himself under circumstances similar to those presented in this case.

In Hamilton v. State, 218 Tenn. 317, 403 S.W.2d 302 (1966), the judge who presided at the trial had issued a warrant for the defendant’s arrest, after an ex parte hearing, when he was serving as a General Sessions Judge. The Tennessee Constitution requires disqualification in any case, “in which he may have presided in any inferior court, except by consent of all the parties.”

The Hamilton court did not grapple with the question of whether an ex parte hearing to determine probable cause to issue an arrest warrant was, in the constitutional sense, equivalent to presiding in an inferior court, but rather based its holding that Judge Faquín should not have presided as trial judge on the rationale that there is,

“[T]he possibility that prior knowledge of the facts could in some way influence a criminal judge generally, in exercising his discretion — for example, in whether or not to grant a new trial — is one of the reasons for which we think this constitutional provision exists.” 218 Tenn. at 321, 403 S.W.2d at 303.

We recently observed that both arrest and search warrants involve a judicial determination of the issue of probable cause by a neutral and detached magistrate who must judge for himself the persuasiveness of the facts relied upon. In re Dender, 571 S.W.2d 491 (Tenn.1978). Upon the subsequent filing of a motion to suppress the search warrant, the trial judge may be called upon to rule on the validity of his own judicial determination theretofore made on evidence heard at the ex parte hearing, and the possibility arises that prior knowledge of the facts could in some way influence his disposition of that motion— and rulings upon subsequent proceedings. Thus, in principle the facts here are indistinguishable from those in Hamilton. Whether the judge who is to preside at the criminal trial was, at the time he conducted a probable cause hearing and issued the arrest or the search warrant, a judge of an inferior court or a trial court is immaterial.

For the reasons stated above, I would grant the petition and direct the entry of an order granting defendants’ motion of recusal.

Mr. Justice HENRY joins me in this dissent.


author: MATHERNE, Judge.

text:
    STATE FARM LIFE INSURANCE COMPANY, Plaintiff-Appellee, v. Johnny Edward LAWLESS and West End Recreation, Inc., Defendants-Appellants.
    Court of Appeals of Tennessee, Western Section.
    July 3, 1979.
    Certiorari Denied by Supreme Court Sept. 4, 1979.
    Ralph H. Noe, Jr., Morristown, for defendants-appellants.
    Earnest R. Taylor, Morristown, for plaintiff-appellee.
   MATHERNE, Judge.

The plaintiff insurance company sues to rescind a policy of decreasing term life insurance it issued on the life of the defendant, Johnny Edward Lawless, payable on his death to the defendant West End Recreation, Inc. The chancellor, under the facts, held in favor of the plaintiff and entered an order rescinding the policy.

The defendants appeal under the following assignments of error:

ASSIGNMENT OF ERROR NUMBER ONE: The Court erred in finding that State Farm Life Insurance Company is entitled to a rescission of the life insurance policy on the life of Johnny Edward Lawless.
ASSIGNMENT OF ERROR NUMBER TWO: The Court erred in failing to find that State Farm Life Insurance Company was estopped to rely upon the physical condition of John Lawless as a basis for rescission.
ASSIGNMENT OF ERROR NUMBER THREE: The Court erred in finding that the physical condition of Johnny Edward Lawless had materially changed from the date of the insurance policy application to date of insurance policy issuance.

On November 13, 1975, Lawless made application to the plaintiff for a policy of life insurance. No premium was paid at that time and no binding receipt was issued. The application stated that under those conditions the policy would go into effect under the following conditions:

. there shall be no liability under the policy until it is delivered and the first premium thereon is paid while all persons proposed for insurance are living, and then only if the statements and answers contained in all parts of this application are, without material change, true and complete as of the time of payment of such premium in which case such policy shall be deemed to have taken effect on the Policy Date thereof.

Lawless answered questions on the application that he had stomach ulcers in 1969 but had completely recovered. This fact is established as true. He also answered that he had consulted a doctor in the past five years only for the purpose of a physical examination for two other life insurance policies with the plaintiff company. These examinations were stated to have occurred in 1974. All other questions on the application were answered in the negative which answers indicated good health.

Though requested to do so in the application, Lawless failed to disclose that he was seen by Dr. Gene Lynch of Morristown on March 29, 1972, and hospitalized for treatment of vertigo, headache and sinusitis and that he consulted Dr. 0. C. Renner of Mor-ristown on October 20,1975, (23 days before he applied for the life policy) complaining of numbness of the left side of his face.

In order to obtain the policy, Lawless submitted to a physical examination by the insurer’s physician, Dr. John H. Kinser of Morristown, on December 23, 1975. Dr. Kinser had previously treated Lawless for sinus infection and had prescribed “injections” therefor. The physical examination by Dr. Kinser and the medical history as revealed to the doctor by Lawless showed no other medical record or physical infirmities other than the surgery for stomach ulcers in 1969, an X-ray preparatory thereto, and the sinus infection.

On February 16, 1976, the policy of life insurance was delivered to Lawless and he paid the first premium. The crux of this lawsuit is that upon the delivery of the policy to Lawless and his payment of the premium he did not advise the insurer of the continued physical trouble he had experienced or of the medical examinations and medical advice he had received between the date of the application and the date of the delivery of the policy and payment of the premium.

On January 15, 1976, Lawless consulted with Dr. Renner complaining of numbness of his lip, teeth, gums and nose on the left side and was advised by that physician to have a brain scan.

On a date prior to January 25,1976, Lawless consulted with Dr. Shelton Soss of Knoxville, Tennessee with complaints above noted, and was referred by Dr. Soss to Dr. Fred F. Brown, Jr., of Knoxville, Tennessee.

On January 23, 1976, Lawless consulted with Dr. Brown concerning the same complaints. Dr. Brown advised Lawless to enter a hospital for an EMI and a laminagram and arranged for Lawless to enter St. Mary’s Hospital in Knoxville on February 3, 1976, for that purpose. Dr. Brown wrote Dr. Soss that, he, Brown, suspected a malignancy but he did not relate this suspicion to Lawless.

On January 27, 1976, Lawless consulted Dr. Frank Turney of Knoxville, Tennessee, concerning the same complaints. Lawless told Dr. Turney of his visit to Dr. Brown, of Dr. Brown’s advice and of the hospital appointment. Dr. Turney advised an X-ray study to see if there was a thickening of the bone as result of a previous blow to the head suffered by Lawless. The X-ray was made and it did not reveal a thickening of the bone. Dr. Turney thereupon advised Lawless to follow the advice of Dr. Brown, enter the hospital and have the diagnostic tests.

Lawless did not keep his appointment with Dr. Brown and the hospital. In August 1976, it was determined that Lawless was suffering from brain cancer which condition was diagnosed as terminal. Lawless died on January 19, 1979. An Order was entered reviving this lawsuit in the name of the administrator of his estate.

It is established in Tennessee that a representation made in an application for insurance is a continuing affirmation of the truthfulness of such representations until the policy is delivered. Independent Life Ins. Co. v. Russell (1934) 18 Tenn.App. 622, 80 S.W.2d 846. It is also the rule that an applicant for a life policy must use due diligence to communicate to the insurer facts materially affecting the risk which arise after his application has been made and before the contract is consummated by delivery of the policy. Harris v. Insurance Co. (1914) 130 Tenn. 325, 170 S.W. 474. See also 7 Couch on Insurance 2d, Sections 35:97 and 35:98; 43 Am.Jur.2d Insurance § 794 (1969); cases annotated at 148 ALR 461.

The chancellor found that Lawless had cancer when the application was signed, and there is material evidence to support that finding. The defendants claim that cancer was present at the time of the application and at the time of the delivery of the policy and there was no change in the physical condition of Lawless which increased the risk undertaken by the insurer. The defendant also argues that Lawless did not know he had cancer until August 1976. Under the issue before the Court it matters not whether Lawless had cancer at the time of the application or whether he knew of that condition at the time of the application or at the time the policy was delivered. Under the provisions of the application and the rule of law heretofore stated, Lawless owed the duty to advise the insurer of all physical examinations, consultations and prescribed treatments which he experienced during the time between the policy application and the delivery of the policy. The insurer was entitled to these facts so that it could further investigate the condition of Lawless’s health prior to delivery of the policy.

The defendants claim the insurer is es-topped to seek rescission of the policy. The insurer’s physician, Dr. John H. Kinser, had treated Lawless for a sinus infection prior to the time he made the physical examination of Lawless for the insurer. The defendants also point out that a retail credit company report to the insurer, dated December 3, 1975, showed that Lawless had consulted his personal physician, Dr. O. C. Renner, about a month prior to December 3, 1975, for a sinus condition. The argument is made that the insurer should have contacted Dr. Renner, and had it done so it would have learned of the visit Lawless made to Dr. Renner on October 20, 1975, complaining of numbness on the left side of his face. The defendants claim that diligent investigation of the information concerning the numbness of the face would have revealed the malignancy of the brain.

Where an insurance company has information which, if pursued with reasonable diligence, would lead to a discovery of the true state of facts regarding the health of the insured upon which it seeks to base a rescission of the policy, the courts will raise an estoppel against the claim for rescission. See Life & Casualty Ins. Co. v. King (1917) 137 Tenn. 685, 195 S.W. 585.

This argument must fail because there is no evidence that sinus infection is a signal of brain cancer. Compare Lincoln

American Life Insurance Co. v. Stephens (1969) 60 Tenn.App. 221, 445 S.W.2d 910. The insurer through its own medical examiner knew of the sinus trouble and there is no reason shown why it should have gone to Dr. Renner to inquire about a condition of the applicant’s health which it already knew.

It results that all assignments of error are overruled, and the judgment of the chancellor is affirmed. The cost in this Court is adjudged against the defendants-appellants for which execution may issue, if necessary,

NEARN and SUMMERS, JJ., concur.


author: POPE, Justice.

text:
    TRANSAMERICAN LEASING COMPANY, Petitioner, v. THREE BEARS, INC., et al., Respondents.
    No. B-8172.
    Supreme Court of Texas.
    July 25, 1979.
    Rehearing Denied Sept. 19, 1979.

      Daniel R. Rutherford, San Antonio, for petitioner.
    James N. Martin, San Antonio, Lang, Cross, Ladon, Boldrick '& Green, Paul M. Green and Lawrence H. Rubenstein, Bruce Waitz and Van H. Johnson, Robert C. Patterson, San Antonio, for respondents.
   POPE, Justice.

Transamerican Leasing Company sued Three Bears, Incorporated, for breach of three agreements by which Three Bears leased restaurant equipment. Transameri-can also sued the G. S. and Gladys A. McCreless Trust and its trustees as guarantors on the leases. The trial court rendered judgment on the jury verdict against Three Bears and the McCreless Trust and its trustees in the amount of $109,447.76 for unpaid rentals, together with attorney fees and interest. The court of civil appeals reversed the trial court’s judgment in part, holding that the McCreless Trust was not liable because its trustees did not have the power to bind the Trust as guarantors. 574 S.W.2d 193. Both Transamerican and Three Bears have applications for writs of error. We reverse that part of the judgment of the court of civil appeals which denied recovery against McCreless Trust and affirm the judgment of the trial court. We affirm the judgment which denied attorney fees to Transamerican.

Three Bears operated a chain of hamburger stands in San Antonio. The McCreless Trust owned fifty percent of the stock in Three Bears. G. S. and Gladys A. McCreless are the settlors of the McCreless Trust. The settlors are the beneficiaries of the Trust during their lifetime; their two daughters will become the beneficiaries upon the death of the settlors provided they survive their parents; and the daughters’ children are contingent beneficiaries. During the time of these events, G. S. and Gladys A. McCreless were the beneficiaries. The trustees for the Trust are the settlors and their two daughters.

In May and June of 1973, Three Bears signed three agreements for the leasing of large amounts of restaurant equipment to be supplied by Transamerican. The agreements had a term of sixty months. The McCreless Trust by separate agreements guaranteed Three Bears’ performance on each of the leases. Three Bears made the first and last rental payments under each of the leases but failed to make any other payments.

Transamerican had borrowed the funds to purchase the equipment that it leased to Three Bears. While it was seeking permanent financing, it obtained interim financing by a short-term loan in the amount of $88,000 from the First National Bank of San Antonio. Transamerican’s note to First National Bank was also guaranteed by the McCreless Trust and by G. S. McCreless individually. Transamerican did not obtain the permanent financing for its purchase of the equipment. Three Bears refused to make its rental payments, and when Transamerican defaulted on its note to the First National Bank, G. S. McCreless honored his guaranty and paid the bank. The bank assigned the $88,000 note, to him. He took possession of the restaurant equipment and sold it to the Fair Development Company, a partnership that was wholly owned by the McCreless family. Transamerican gave the Trust and Three Bears credit in the amount of $88,000 against the unpaid rentals owed under the leases and the guaranty agreements.

Transamerican’s Application for Writ of Error

Transamerican obtained a judgment against Three Bears and also against the McCreless Trust as guarantor. The jury refused to find that Three Bears’ and McCreless Trust’s obligations on the equipment leases were conditioned upon Trans-american’s obtaining permanent financing for the leases and also that Transamerican’s arrangement for permanent financing was a part of the consideration for the leases. There was evidence which supported those findings. The court of civil appeals reversed the judgment against the McCreless Trust, holding that the Trust had no power to obligate itself as a guarantor of the three lease agreements that Three Bears signed. We reverse that part of the judgment of the court of civil appeals.

The Trust instrument confers numerous broad powers on the Trust. Among these powers are the following:

With reference to the Trust estate created herein and every part thereof, the Trustees shall have the following rights and powers, without limitation and in ADDITION TO POWERS conferred by law:
******
D. To invest and reinvest in such stocks, bonds and other securities and properties as they may deem advisable including stocks and unsecured obligations, undivided interests, interests in investment trusts, legal and discretionary common trust funds, mutual funds, ¡eases, all without diversification as to kind or amount and without being restricted in any way by any statute or court decision (now or hereafter existing) regulating or limiting investment by fiduciaries.
******
S. The Trustees shall have such additional powers as the Grantors, by any future instrument in writing delivered to Trustees, may grant to them, the right to grant such powers being hereby expressly
reserved to the Grantors. [Emphasis added.]

Paragraph D gives the trustees power to invest in leases. The Trust beneficiaries, however, contend that a guarantee of another’s performance under a lease does not constitute an investment in a lease. The term “invest” means to loan money on securities, to place it in business ventures or real estate, or to otherwise lay it out in an effort to produce revenue or income. BLACK’S LAW DICTIONARY 960 (4th ed. 1961). The Trust’s guaranty of Three Bears’ performance on its leases was not a gratuitous gesture; it was made as an effort to produce revenue for the Trust. The financial backing of Three Bears by the Trust was an important factor in Three Bears’ obtaining its lease agreements with Transamerican, and the Trust held fifty percent of the stock in Three Bears. Thus, the benefits from Three Bears’ success in the restaurant chain would ultimately accrue to the Trust. We consider the Trustees’ action in guaranteeing Three Bears’ performance to be one within their powers under the terms of the Trust instrument.

Paragraph S of the Trust instrument, which provides that the settlors may, in writing, confer additional power on the trustees, is an additional source of the trustees’ power to guarantee the lease. Along with the other trustees, both G. S. and Gladys A. McCreless, the settlors, signed a written agreement authorizing Robert E. Durr and G. S. McCreless to make the Trust a party to the lease agreements themselves. Furthermore, in their answer to Transamer-ican’s petition filed in this suit, the settlors and the other trustees stated that G. S. McCreless and Robert E. Durr had acted for them in executing the leases and thereby ratified the execution.

The Trust beneficiaries alternatively contend that the Trust cannot be bound as a guarantor because the trustees could not delegate their authority to enter into the leases to G. S. McCreless and Robert E. Durr. Only the latter two individuals signed the leases as agents of the Trust. Their authority to do so is found in the above mentioned power-of-attorney instrument whereby the trustees authorized them to enter into lease agreements with Trans-american. The general rule is that a trustee may not delegate his discretionary power to another. West v. Hapgood, 141 Tex. 576, 174 S.W.2d 963 (1943). A trustee may, however, after determining how to exercise his discretion, give authority to another to carry out ministerial or mechanical acts to effectuate the trustee’s decision. Id.

We consider the general rule against delegating authority inapplicable to this case. As parties to the power-of-attorney, the settlors, in effect, gave the trustees the express power of delegation. The granting of this express power to the trustees renders the delegation in this case permissible. See BOGERT, TRUSTS & TRUSTEES § 555 (2d ed. 1960). We need not decide whether, without such express power, the delegation would have been permissible.

All of the respondents, defendants in the trial court, urge that the trial court’s judgment was fatally defective because there was no notice to each of the McCreless beneficiaries as required by Tex.Rev.Civ. Stat.Ann. art. 7425b-19 B which provides:

Whenever a trustee shall make a contract which is within his powers as trustee, or a predecessor trustee shall have made such a contract, and a cause of action arises thereon:
* * sf: * * *
B. No judgment shall be rendered in favor of the plaintiff in such action unless he proves that within thirty (30) days after the beginning of such action, or within such other time as the court may fix, and more than thirty (30) days prior to obtaining the judgment, he notified each of the beneficiaries known to the trustee who then had a present or contingent interest, or in the case of a charitable trust the Attorney General of Texas and any corporation which is a beneficiary or agency in the performance of such charitable trust, of the existence and nature of the action. Such notice shall be given by mailing copies thereof by registered mail addressed to the parties to be notified at their last known addresses.

When this matter was first called to the attention of the trial court, it vacated the original judgment while it still had jurisdiction to do so. Transamerican Leasing Company v. Three Bears, Inc., 567 S.W.2d 799 (Tex.1978). After the judgment was vacated, Transamerican caused notice of the suit to be sent to the beneficiaries, and the court also appointed a guardian ad litem to represent the two minor contingent beneficiaries. The trial court also ordered the beneficiaries to show cause why judgment should not be rendered in the case. The beneficiaries’ response to the show cause order was that a new trial was mandatory since the notice was not sent until after the jury had returned its verdict. On August 17, 1976, the trial court again rendered judgment for Transamerican against both Three Bears and the McCreless Trust.

The beneficiaries acknowledge that the notices complied with the statutory requirement that they be sent “more than thirty (30) days prior to obtaining the judgment,” but insist that the technical compliance did not allow the beneficiaries the opportunity to participate in the trial of the case. There are undoubtedly many instances in which a notice that is sent after verdict would not be sufficient to protect a beneficiary’s interest in a trust. The beneficiaries in this instance have not been able to show anything they would have done differently or in addition to what was done in defense of the Trust liability if they had actually participated in the trial. Prior to the court’s judgment on August 17, 1976, the beneficiaries presented nothing to the court to suggest any beneficiary had been prejudiced by a failure to receive an earlier notice, or that the trial would have been conducted any differently if all beneficiaries had participated. The trustees were also the principal beneficiaries, and they answered and ably participated in the defense of the case. None of the beneficiaries who did not participate in the trial have ever asserted any conflict between their interests and the trustee-beneficiaries or that their interests were not adequately represented by the trustees. In the absence of a conflict of interest or of a pleading that they were inadequately represented, the beneficiaries who did not participate in the trial were not necessary parties to the case. Cf. Mason v. Mason, 366 S.W.2d 552 (Tex.1963). The requirement for a notice does not always require notice in time for trial, since the statute places some discretion with the court to require' the notice “within such other time as the court may fix” so long as it is thirty days before judgment.

Transamerican also contends that the court of civil appeals erred in denying its claim for attorney fees. It is our opinion that the court of civil appeals correctly denied the attorney fees. The leases provided that Transamerican could recover attorney fees in the event it had to repossess the restaurant equipment from Three Bears. Transamerican did not repossess the equipment, but it argues that it should be allowed attorney fees because it was prevented from repossessing the property. McCreless had purchased Transamerican’s note from the bank, and he then repossessed the equipment. Transamerican relies upon the rule that when the obligation of a party depends upon the performance of a condition, and the fulfillment of that condition is prevented by the act of the other party, the condition is considered as fulfilled. Sanderson v. Sanderson, 130 Tex. 264, 109 S.W.2d 744, 749 (1937). The rule is not applicable to this case. Although G. S. McCreless took possession of the equipment and conveyed it to Fair Development Company, a McCreless-owned partnership, the record does not show that Transamerican ever attempted to obtain possession of the equipment or made any effort to prevent Mr. McCreless from taking the property. In fact, nothing in the record suggests that Transamerican ever intended to repossess the property.

Three Bears’ Application

Three Bears has filed a conditional application for writ of error. It contends that there is no evidence to support the jury finding that Transamerican sustained damages in the amount of $109,447.76. There is evidence in support of the jury finding of damages that Three Bears failed to make fifty-eight rental payments, amounting to more than $170,000.

Three Bears also contends that the trial court erred in excluding evidence which tended to show that Three Bears and Transamerican had an oral agreement whereby Three Bears had an option to purchase the restaurant equipment. The excluded evidence contained testimony by G. S. McCreless to the effect that the parties intended the difference between the total of the rental payments and the purchase cost of the equipment to be paid as interest. A witness for Three Bears calculated the total interest to be in excess of twenty percent per annum. It- is Three Bears’ contention that all of this evidence should have been admitted to establish a violation of the usury statutes applicable to both individual and corporate borrowers. We hold that the evidence was properly excluded as violative of the parol evidence rule. The written lease agreements contain no provision giving Three Bears an option to purchase the equipment. Furthermore, each lease states that it “constitutes the sole agreement of the parties with respect to the subject matter thereof.” Thus, the claimed purchase option agreement is inconsistent with the lease contracts and not merely collateral to them. When such a purchase option agreement is inconsistent with, and not merely collateral to, a lease contract, the parol evidence rule applies. Hobbs Trailers v. J. T. Arnett Grain Co., Inc., 560 S.W.2d 85 (Tex.1977).

Three Bears contends, however, that the parol evidence rule is not applicable to situations in which a party seeks to show that an apparently valid contract is really a mask for usury. As authority, Three Bears cites cases in which courts have held that parol evidence is admissible to show that a loan agreement, valid on the face of the written instrument, is in fact, a usurious loan. See, e.g., Smith v. Stevens, 81 Tex. 461, 16 S.W. 986 (1891); F. B. & D., Inc. v. Nathan Alterman Electric Co., 394 S.W.2d 821 (Tex.Civ.App.—San Antonio 1965, writ ref’d n.r.e.). These cases are not applicable to this particular case. In order for Three Bears to establish usury, it must first establish that the leases were not mere leases but were, instead, lease-purchase agreements. Without parol evidence of the purchase option, the lease agreements cannot constitute loan agreements.

Three Bears also presents the contention that the lease agreements are unenforceable because they are unconscionable within the meaning of Texas Business and Commerce Code provisions governing sales of goods. Tex.Bus. & Comm.Code.Ann. art. 2.302. Assuming, without deciding, that the Code provision on unconseionability applies to these leases, we agree with the trial court’s conclusion that the leases are not unconscionable. The terms of the contracts are neither harsh nor oppressive, and nothing in the record suggests that Three Bears, or the Trust, was in an unfair bargaining position at the time the agreements were made.

Three Bears’ remaining points of error concerning the admission and exclusion of certain evidence are also overruled.

The judgment of the court of civil appeals which affirmed the judgment of the trial court against Three Bears and which denied Transamerican’s recovery of attorney fees is affirmed. We reverse that part of the judgment of the court of civil appeals which reversed the judgment of the trial court for damages in the sum of $109,447.76 against the McCreless Trust and its trustees. We affirm that part of the trial court’s judgment. Attorney fees for the guardian ad litem and all costs of court are adjudged against Three Bears, the McCreless Trust and its trustees.

SPEARS, J., not sitting.

      .The ownership and control of Three Bears are as follows:
      Board of Directors G. S. McCreless Robert Durr (son-in-law) Jim Martin (McCreless’ attorney) Frank Hmcir (McCreless’ accountant) Bill Chapman (originator of Three Bears)
      Stockholders G. S. & Gladys A. McCreless Trust_50% Grace Ann McCreless Durr_15% Jim Martin_5% Frank Hmcir_5% Bill Chapman _25%
      The McCreless Trust
      Beneficiaries: Trustees:

      . G. S. McCreless Gladys A. McCreless

      .G. S. McCreless Gladys A. McCreless Grace Ann McCreless Durr Merry Christine McCreless Nielsen

      . Grace Ann McCreless Durr Merry Christine McCreless Nielsen

      . Kenneth Wesley Durr Robert Gordon Durr Cynthia Lynn Nielsen Carolyn Ann Nielsen [Cynthia and Carolyn are represented by a guardian ad litem.]

      .The partners of Fair Development Company are:
      G. S. McCreless
      Gladys A. McCreless
      Grace Ann McCreless Durr
      Merry Christine McCreless Nielsen

      . The provision states:
      Upon such repossession of the Leased Property, the Lessor shall have the right to:
      A. Rerent the Leased Property and credit the rentals collected thereunder during the balance of the term of this Lease upon the unpaid balance of the rents hereunder after first deducting the costs and expenses of repossession (including an attorney’s fee of 15% of the balance of the rent due if an attorney was used in connection therewith), storage until rerenting, reconditioning and repair of the Leased Property and rerenting, paying any overplus to the Lessee, the Lessee to remain liable for any deficiency, or
      B. If, in the sole opinion of the Lessor it would be impractical or impossible to rerent the Leased Property, sell the Leased Property at public or private sale with the right of Lessor or Assignee to purchase any or all of the Leased Property at such sale, pay all charges and expenses incurred by Lessor or Assignee in connection with or incidental to the repossession (including an attorney’s fee of 15% of the amount realized, if an attorney is used in connection therewith), storage and sale, and credit the remainder of the sale price to the unpaid balance of the rent hereunder, the Lessee to remain liable for any deficiency.


author: ROBERTS, Justice. DOUGLAS, Judge,

text:
    Larry Warren CROSS, Appellant, v. The STATE of Texas, Appellee.
    No. 56040.
    Court of Criminal Appeals of Texas.
    April 18, 1979.
    Rehearing Denied Oct. 3, 1979.

      Donald F. McNiel, II, Stephenville, for appellant.
    Robert J. Glasgow, Dist. Atty. and William L. Martin, Jr., Asst. Dist. Atty., Ste-phenville, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

ROBERTS, Justice.

A jury found the appellant guilty of murder and fixed the punishment at confinement for life.

, The appellant complains of three occasions on which the trial court admitted evidence of extraneous offenses. We note that these complaints are presented in one, multifarious ground of error, in disregard of subdivision 9 of Article 40.09, Texas Code of Criminal Procedure. Nevertheless, we shall review the complaints because of the nature of the case.

The victim was shot once in (or near) a bar. It was undisputed that the appellant fired his gun at least twice and that two other people fired their guns. No witness could testify that he saw the appellant shoot the victim because the witnesses “scattered” when the appellant fired the first shot (which struck no one). The State’s theory was that the appellant shot the victim, who staggered out of the bar and fell. The appellant’s theory was that the victim was shot outside the bar by a witness who admitted firing his gun. The appellant also said that the victim had a gun. The jury was instructed on the law of circumstantial evidence.

On direct examination in the guilt phase of the trial, the appellant admitted going to prison for a prior felony conviction of burglary. When the State began to cross-examine the appellant about this conviction, the appellant’s counsel made the following motion, outside the presence of the jury:

“MR. McNIEL: May it please the Court, the record in which the District Attorney is proceeding into as to the date of conviction of the defendant, Larry Warren Cross, also reveals that he was at the time put on probation, and the probation was subsequently revoked. I would like to make a motion that the District Attorney be instructed not to give before this jury the reason for the revocation of probation, it’s not relevant, it’s not a conviction itself and I think the District Attorney should be limited solely in order to present prejudice in this case to his one conviction which the record appears on the record to be a burglary conviction and I would request the Court to instruct the District Attorney outside the presence of the jury.”

The court overruled the motion. The jury returned, and cross-examination continued: “Q. Was your probation revoked because on the 4th day of July, 1971, you did make an assault on Edmond Carroll by shooting him with a gun?

“THE COURT: All right. Just a moment. Don’t answer yet.
“MR. McNIEL: Judge, I object on the ground that he was not convicted of shooting this man with a gun, number two, highly prejudicial and it’s inadmissable, Your Honor.
“THE COURT: Overruled.
“Q. Was that the allegation Mr. Cleveland made when he filed a motion to revoke your probation in this District Court?
“A. Was it the allegation — what do you mean by allegation?
“Q. Is that what he alleged in his motion when he revoked your probation?
“A. I guess so..
“Q. You had a hearing on it didn’t you? “A. Yes.
“Q. Didn’t he put evidence in Court about you shooting Edmond Carroll with a gun?
“A. I shot him in self-defense.
“Q. Just like this case?
“A. I didn’t shoot this case.
“Q. And the Court revoked your probation?
“A. He did.”

Later in the guilt phase, the State offered a “pen packet.” This included copies of the motion to revoke probation and the order revoking probation, both of which included as the ground that on July 4, 1971 the appellant assaulted Edmond Carroll by shooting him with a gun, not in self-defense. The appellant’s objection to these pages was overruled, and the entire packet was admitted.

By admitting the testimony and the exhibit as evidence of the probation revocation, the trial court committed errors. Proof of prior acts of misconduct is not admissible as evidence of a defendant’s guilt, but it may be admissible to impeach the credibility of a defendant who testifies. See C. McCormick & R. Ray, Evidence (2d ed.), Section 649. Even when their use is limited to impeachment, not all acts may be proved; a conviction must have resulted. Thrash v. State, 482 S.W.2d 213 (Tex.Cr.App.1972). Article 38.29 of the Texas Code of Criminal Procedure provides that impeachment by proof of an indictment, information, or complaint is allowed only if on trial a final conviction has resulted, or a suspended sentence has been given and has not been set aside, or the witness has been placed on probation and the period of probation has not expired. (There are also other restrictions, such as the remoteness of the offense, but these are not material here.)

We apply these rules to this case, and hold that it was error to admit proof of the misconduct for which the appellant’s probation was revoked. The assault was a prior act of misconduct, but it did not result in a conviction, for revocation of probation is not a conviction. Hulsey v. State, 447 S.W.2d 165 (Tex.Cr.App.1969). The requirement of Article 38.29 that there have been a trial was not met, for probation revocation proceedings are not trials. Bennett v. State, 476 S.W.2d 281 (Tex.Cr.App.1972). Probation revocation proceedings are administrative in nature. Davenport v. State, 574 S.W.2d 73 (Tex.Cr.App.1978). A violation of probation conditions need be proved only by a preponderance of the evidence, not beyond a reasonable doubt (as is required for a conviction, a suspended sentence, or a judgment granting probation). Russell v. State, 551 S.W.2d 710 (Tex.Cr.App.1977), cert. denied, 434 U.S. 954, 98 S.Ct. 480, 54 L.Ed.2d 312. Its value as proof of prior misconduct is correspondingly lower. Because of these differences, a probation revocation does not fall within the “conviction exception” to the general rule forbidding proof of prior acts of misconduct.

We also note that there was no need for the State to have offered such proof in order to impeach the witness’s credibility. The rationale of this method of impeachment is that the fact-finder may regard as less credible the word of a felon (or person convicted of a crime of moral turpitude). Here, the appellant had already testified that he was convicted of the felony of burglary and confined in the Texas Department of Corrections. Even had he not so testified, the State need not offer proof of his probation revocation to impeach him. The State could prove the conviction, and the burden would be on the defendant (unless the record otherwise reflected) to show that the conviction was not final. Smith v. State, 409 S.W.2d 409 (Tex.Cr.App.1966), cert. denied, 389 U.S. 822, 88 S.Ct. 45, 19 L.Ed.2d 73; Cyrus v. State, 500 S.W.2d 656 (Tex.Cr.App.1973). Proof of the fact of probation revocation was unnecessary for impeachment.

We also note that, even had the offense which was described in the probation revocation motion and order resulted in a conviction, the conviction could not have been used for impeachment. On the date alleged, aggravated assault with a deadly weapon was neither a felony (Vernon’s Annotated Texas Penal Code, Articles 1147 & 1148) nor a crime of moral turpitude (Valdez v. State, 450 S.W.2d 624 (Tex.Cr.App.1970)), and such a conviction cannot be used to impeach.

The State contends that the grounds of error were not preserved by proper objections. We cannot agree. In each instance, the appellant told the court that the proof was not of a conviction, which is precisely the problem.

Next, the State argues that proof of the extraneous assault, even though there was no conviction, was admissible to prove identity. This argument has no merit. There was no question of identity. The only question was, which of the shots which were fired from various guns was the one that struck the victim.

Finally, the State contends that the errors were harmless because of overwhelming proof of the appellant’s guilt. We do not agree. The questions and answers quoted above not only inform the jury that the appellant previously shot, someone, they also strongly imply that the appellant fabricates false defenses. This is very prejudicial, and we cannot say that the State’s proof was so overwhelming that we can hold the error to have been harmless.

In view of our holding, we need not discuss the third complaint in the appellant’s multifarious ground of error.

The judgment is reversed and the cause remanded.

DALLY, J., concurs in the result.

DOUGLAS, Judge,

dissenting.

The majority holds “that it was error to admit proof of the misconduct for which the appellant’s probation was revoked.” The majority fails to recognize that the “proof of the misconduct” was in no greater detail than that contained in the motion to revoke probation. Since the motion to revoke probation was admissible, no harm was done to appellant.

Article 38.29, V.A.C.C.P., provides that a defendant may be impeached by evidence of a final conviction. A conviction is not final or otherwise admissible under Article 38.29 if the defendant has served out his probation. We have held that proof of a final conviction may include the indictment. Barnes v. State, 503 S.W.2d 267 (Tex.Cr.App.1974). We have also held that the defense could not prevent proof of the prior conviction, including the indictment, by stipulating to the conviction. Barnes v. State, supra; Wright v. State, 364 S.W.2d 384 (Tex.Cr.App.1963).

In the instant case, Cross took the stand and subjected himself to impeachment through use of his prior conviction for burglary. The documentary proof of the conviction, whether in the form of the original judgment and order granting probation or in the form of the order revoking probation, would necessarily indicate that probation was granted and revoked. Thus the fact of Cross’ probation could be proved to show the finality of the burglary conviction. Since the indictment may be introduced as part of the proof of a conviction, there is no reason that the motion to revoke probation cannot be introduced as part of the proof that probation was revoked.

The motion to revoke probation introduced in this case contained the following details:

“ . . . did on the 4th day of July, 1971, violate the terms of said probation by making an assault upon Edmond Carroll, and by shooting the said Edmond Carroll with a gun, such shooting not being in his own necessary self-defense.”

The order revoking probation contained no additional facts. The prosecution, in cross-examining Cross on the incident, did not elicit any additional facts.

This writer agrees with the majority’s basic premise; the underlying details of the misconduct which forms the basis for either a conviction or probation revocation should not be admissible. However, the majority goes too far in applying this principle to the facts of this case. The State was entitled to prove Cross’ prior, final conviction. The documents proving the conviction indicate that his probation was revoked because of a shooting. Neither the motion to revoke nor the State’s cross-examination showed any additional details. Given these facts, no error is shown.


author: DALLY, Judge. DALLY, Judge. ROBERTS, Judge, PHILLIPS, Judge,

text:
    Ex parte Gilbert Manly SPRING.
    No. 57268.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 7, 1978.
    Rehearing Denied Sept. 19, 1979.

      Donald S. Stirman and Joe J. Newman, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Larry Thomas, Asst. Dist. Attys., Houston, for the State.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

DALLY, Judge.

This is an appeal from an order denying relief in a habeas corpus proceeding. The appellant was convicted in a City of Houston municipal court for the violation of V.T.C.A. Penal Code, Sec. 38.02. He appealed from that conviction to a county criminal court at law. Art. 1200cc, Sec. 7, V.A.C.S. The judgment was affirmed; after a capias pro fine was issued and executed, the appellant’s application for a writ of habeas corpus was granted, but the relief sought was denied in County Criminal Court at Law Number One of Harris County. The appeal from that order is properly before this Court. Art. 44.34, V.A.C.C.P.; Nichlos v. State, 158 Tex.Cr.R. 367, 255 S.W.2d 522 (1952); Ex parte Largent, 144 Tex.Cr.R. 592, 162 S.W.2d 419 (1942).

The appellant asserts that Art. 1200cc, V.A.C.S. is unconstitutional since the procedure therein promulgated for the municipal courts that may be created by authority of that statute deprives a defendant of the constitutional right to equal protection of law. Art. 1200cc, supra, provides for establishment of municipal courts in cities with populations of. over 1,200,000. These courts are courts of record from which appeals are taken on the record to a county criminal court. These appeals are determined by the appellate court solely on the basis of errors assigned in a motion for new trial as presented in a transcript and statement of facts prepared in the municipal court. Art. 1200cc, Sec. 8, V.A.C.S. The appellant contends that this procedure denied him equal protection of law since he did not get a trial de novo on appeal, whereas trials de novo are granted appellants from convictions in municipal courts established under the general law of this State. Arts. 44.17 and 45.10, V.A.C.C.P.

Art. V, Sec. 1 of the Texas Constitution provides that the judicial power of this State shall be vested in one Supreme Court, in one Court of Criminal Appeals, in courts of Civil Appeals, in District Courts, in County Courts, in Commissioners Courts, in courts of the Justice of the Peace, and in such other courts as may be provided by law. It further provides that the Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district courts and other inferior courts thereto. This provision has been construed a number of times, and it has been held that the authority granted to the Legislature is plenary. E. g. Harris County v. Stewart, 91 Tex. 133, 41 S.W. 650 (1897); Ex parte Abrams, 56 Tex.Cr.R. 465, 120 S.W. 883 (1909); Ex parte Wilbarger, 41 Tex.Cr.R. 514, 55 S.W. 968 (1900); Ex parte Bennett, 85 Tex.Cr.R. 315, 211 S.W. 934 (1919). This constitutional provision allows the Legislature to provide for a flexible and adaptable judicial system. Harris County v. Stewart, supra.

The Legislature in Art. 1200cc, supra, which provides for municipal courts of record and for appeals on the record instead of trials de novo in certain cities, has allowed courts to be created in a classification that is reasonably related to the purpose of providing a flexible and more efficient court system. The Legislature has recognized that problems and conditions in the municipal courts in large metropolitan areas differ from those in the smaller cities and towns. We hold that Art. 1200cc, supra, does not deny the constitutional right to equal protection of law.

The appellant also argues that since Art. 1200cc, supra, is based on a population classification, it is a violation of Art. Ill, Sec. 56 of the Texas Constitution, which prohibits local or special laws relating to the affairs of cities and other political subdivisions. Notwithstanding the above constitutional provision, the Legislature has broad power to make classifications for legislative purposes and to enact laws for the regulation thereof, even though such legislation may be applicable only to a particular class or, in fact, affect only the inhabitants of a particular locality. Resort to population brackets for the purpose of classifying subjects for legislation is permissible where the spread of population is broad enough to include or segregate a substantial class, and where the population bears some real relation to the subject of legislation and affords a fair basis for the classification. See Miller v. El Paso County, 136 Tex. 370, 150 S.W.2d 1000 (1941); Ex parte Carson, 143 Tex.Civ.R. 498, 159 S.W.2d 126 (1942). As we have previously stated, Art. 1200cc, supra, is an attempt by the Legislature to deal with the problems and conditions facing municipal courts in large metropolitan areas. We hold that the class defined by Art. 1200cc, supra, is substantial, and bears a real relation to the subject of the legislation. The statute is not an unconstitutional local or special law.

Appellant also urges that he has been denied his constitutional right to equal protection of the law because the Houston Municipal Court is a court of record, Art. 1200cc, Sec. 1, V.A.C.S., whereas municipal courts established under the general law are not. Art. 1194, V.A.C.S., et seq. He argues that because final convictions in a court of record may be admitted in evidence at the punishment stage of a criminal trial, Art. 37.07, Sec. 3(a), V.A.C.C.P., he has been assessed a harsher penalty than may be assessed those convicted in other municipal courts. This contention is premature. Appellant’s municipal court conviction has not been admitted in evidence in any subsequent criminal trial. A constitutional attack may not be based on an apprehension of future injury. Bush v. Texas, 372 U.S. 586, 83 S.Ct. 922, 9 L.Ed.2d 958 (1963); Ex parte Usener, 391 S.W.2d 735 (Tex.Cr.App.1965); Austin Fire and Police Departments v. Austin, 149 Tex. 101, 228 S.W.2d 845 (1950).

Appellant contends that he has been denied the effective assistance of counsel because his request for oral argument on appeal to the Harris County Criminal Court at Law was denied. The denial of appellant’s request for oral argument in no way impaired his right to the benefit of counsel within the procedure established by the statute, which does not explicitly provide for oral argument. Art. 1200cc, Sec. 8, V.A.C.S. The record shows that appellant has been represented by counsel at all stages of this case. Although not required to, a county court judge may hear oral argument on an appeal from the municipal court.

Because his fine did not exceed $100.00, appellant was unable to directly appeal to this Court from the affirmance of the Municipal Court judgment in the Harris County Criminal Court at Law. Art. 1200cc, Sec. 21, V.A.C.S. Appellant contends that he has thereby been denied his right to appeal. The right to appeal in a criminal case is a statutory right, Savage v. State, 155 Tex.Cr.R. 576, 237 S.W.2d 315 (1950), and the jurisdiction of this Court is subject to such exceptions and limitations as may be prescribed by law. Texas Constitution, Art. V, Sec. 5. Ex parte Bennett, supra. Furthermore, the limitation on appeals to this Court contained in Art. 1200cc, Sec. 21, V.A.C.S., is consistent with the general limitation contained in Art. 4.03, V.A.C. C.P. See Leggio v. State, 489 S.W.2d 622 (Tex.Cr.App.1973); Bass v. State, 399 S.W.2d 558 (Tex.Cr.App.1966). None of the appellant’s rights to appeal has been denied. The judgment is affirmed.

Before the Court en banc.

OPINION ON APPELLANT’S MOTION FOR REHEARING

DALLY, Judge.

On his motion for rehearing appellant raises an alternative claim of denial of equal protection of the law. Rather than contending that residents of Harris County are treated unequally in comparison with residents in other counties across the state, appellant now claims that, within Harris County, the class of persons whose misdemeanor cases are filed in municipal court are treated unequally in comparison with those persons whose complaints were filed in a justice of the peace court. He argues that if the complaint had been filed in a justice of the peace court in Harris County instead of a municipal court of the City of Houston he would have had the right to a trial de novo on appeal, but since the complaint was filed in the municipal court he was deprived of the right to a trial de novo and his appeal was limited to the record made in municipal court. Art. 1200cc, Sec. 8, V.A.C.S.

These differences do not deny petitioner the equal protection of the law. The State can create a system of inferior courts that treats similarly situated offenders differently but with substantial equality. Colten v. Kentucky, 407 U.S. 104, 112-19, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). Judges in the municipal courts of the City of Houston must be licensed attorneys in good standing. Art. 1200cc, Sec. 3(e), V.A.C.S. In contrast, although many justices of the peace are licensed attorneys, there is* no requirement that a justice of the peace be a licensed attorney. Art. V, Sec. 19, Texas Constitution. Where the initial proceeding will be in a court of record before a law-trained judge, as it is in municipal court, appeal is understandably confined to the record. Where the initial proceeding will be unrecorded and potentially before a lay judge, the broader right of appeal to a trial de novo in county court does no more than guarantee an equal right to due process of law. See North v. Russell, 427 U.S. 328, 333-37, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976).

Both the municipal court procedure and the justice of the peace court procedure assure an ultimate right to a recorded trial before a law-trained judge. Since both systems afford equal protection, petitioner’s motion is denied.

ODOM and CLINTON, JJ., not participating.

ROBERTS, Judge,

dissenting.

The majority denies appellant’s motion for rehearing en banc. I would grant the motion and reverse the judgment.

In this motion appellant renews his attack on Art. 1200cc, V.A.C.S., which he claims operated to deprive him of the equal protection of the laws. Under the statute Harris County municipal courts are courts of record. However, Section 8 of Article 1200cc provides that misdemeanants convicted in municipal court who appeal their convictions to county criminal court may not as part of that appeal obtain a trial de novo. Instead, their appeal is limited to alleged errors contained in the record made in municipal court. Appellant was just such a defendant.

However, had the complaint against appellant been filed in a Harris County justice court instead of in municipal court, he would have been entitled to a trial de novo in county court after his lower court conviction. Art. 44.17, V.A.C.C.P. Appellant urges that because of this distinction, and because Harris County municipal courts have jurisdiction concurrent with justice courts, he has been deprived of equal protection of the laws.

In Missouri v. Lewis, 101 U.S. 22, 31, 25 L.Ed. 989 (1880), the court stated the applicable rule to be as follows:

“[Tjhere is nothing in the Constitution to prevent any State from adopting any system of laws or judicature it sees fit for all or any part of its territory. If the State of New York, for example, should see fit to adopt the civil law and its method of procedure for New York City and the surrounding counties, and the common law and its method of procedure for the rest of the State, there is nothing in the Constitution of the United States to prevent its doing so. This would not, of itself, within the meaning of the Fourteenth Amendment, be a denial to any person of the equal protection of the laws. If every person residing or being in either portion of the State should be accorded the equal protection of the laws prevailing there, he could not justly complain of a violation of the clause referred to. For, as before said, it has respect to persons and classes of persons. It means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances." (Emphasis added.)

The rule in Lewis was cited with approval in Salsburg v. Maryland, 346 U.S. 545, 551, 74 S.Ct. 280, 98 L.Ed. 281 (1954), and, more recently, in the Chief Justice’s opinion for the majority in North v. Russell, 427 U.S. 328, 338-339, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976).

As Chief Justice Burger pointed out in North, the rule is subject to the proviso that “all people within the classified area are treated equally.” 427 U.S., supra, at 339, 96 S.Ct. at 2714. But in Harris County, all equally-situated people are not treated equally. Those convicted in justice court have a right to trial de novo, while others, charged with the same offense in the same area but prosecuted in municipal court, are legislatively deprived of this valuable right. Such an arbitrary distinction exceeds even the admittedly broad power of the Legislature to act in this area. Missouri v. Lewis, supra; North v. Russell, supra. Cf. Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966).

I would hold that appellant’s right to the equal protection of the laws has been violated. The judgment denying relief should be reversed and the cause remanded for a trial de novo in county court.

PHILLIPS, Judge,

dissenting.

I join in the dissenting opinion of my Brother Judge Roberts. I further dissent on the basis of our own State Constitution. It is unquestioned that the Legislature has the power to prescribe jurisdictional modifications under Article Y, Section 1 of the Texas Constitution. However, that power is simultaneously circumscribed by the provisions of Article I, Section 3 of our Constitution which provide, in pertinent part:

“All free men . . . have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments or privileges . . . .” (Emphasis added.)

The inevitable result of Article 1200cc is that a particular set of men is accorded a

particular privilege unavailable to others within the same jurisdiction. That is to say that all the Class C misdemeanants in Houston who enjoy the fortuitous circumstance of having their case filed in a justice court will have the privilege of a trial de novo upon appeal to the county court. On the other hand, those Class C misdemeanants who find their cases filed in the municipal courts of Houston will be relegated to an appellate determination of their cases on the basis of the cold record created, without the assistance of counsel, unless hired specifically by the appellant. See Empy v. State, 571 S.W.2d 526 (Tex.Crim.App.1978). Article 26.04, V.A.C.C.P. It appears then that the nature of appellate review that a Class C misdemeanant receives is ultimately determined by the discretion of the filing police officer. This type of discretion would seem to offend against the concept that the ultimate distinctions reached between individuals of the same class not be based on an arbitrary or capricious standard, but have some rational basis. Although the above discussion is related solely to Class C misdemeanants, it would have equal applicability to convictions for violations of municipal code ordinances under Hickman v. State, 79 Tex.Cr.R. 125, 183 S.W. 1180 (Tex.Crim.App.1916). Thus, I dissent on the further grounds that this statute violates Article I, Section 3 of the Texas Constitution.

      . We should also point out that Texas, like Kentucky, has a two-tier system to adjudicate less serious criminal cases. The County Criminal Courts of Law of Harris County have concurrent jurisdiction of misdemeanor cases with the justice of the peace courts and the municipal courts. The County Criminal Courts at Law of Harris County have the same jurisdiction in criminal cases as do constitutional county courts. See V.A.C.S. Articles 1970-95, 1970-110b, 1970-110c, 1970-110c.1, 1970-110c.3. The charge in this case could also have been filed originally in one of these County Criminal Courts at Law. See Fouke v. State, 529 S.W.2d 772 (Tex.Cr.App.1975); King v. State, 146 Tex.Cr.R. 273, 174 S.W.2d 266 (1943); Ballew v. State, 26 Tex.App. 483, 9 S.W. 765 (1888); Galloway v. State, 23 Tex.App. 398, 5 S.W. 246 (1887), and the petitioner if tried in any one of these courts would not have been entitled to a trial de novo.

      . See Section 2 of Article 1200cc.


author: DOUGLAS, Judge. ROBERTS, Judge,

text:
    Larry Wayne MAHAN, Appellant, v. The STATE of Texas, Appellee.
    No. 60533.
    Court of Criminal Appeals of Texas, Panel No. 2.
    April 25, 1979.
    Rehearing Denied Oct. 3, 1979.

      J. Michael Smith, Gilmer, for appellant.
    James L. Chapman, Dist. Atty., and C. Stephen Hughes, Asst. Dist. Atty., Sulphur Springs, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

DOUGLAS, Judge.

Larry Wayne Mahan appeals his conviction for possession of more than four ounces of marihuana. Mahan pled guilty to the jury. Punishment was assessed by the jury at two years.

He contends that he should have been allowed to withdraw his announcement of ready and that the prosecutor made three separate improper jury arguments. The sufficiency of the evidence is not challenged.

Mahan contends that he should have been allowed to withdraw his announcement of ready because he was unfairly surprised by the State’s introduction of over a pound of marihuana when he had been led to believe only slightly over four ounces would be introduced. On Friday, March 17, 1978, Mahan’s attorney had a conversation with the district attorney which led him to believe that the State would introduce only slightly more than four ounces. The district attorney furnished the defense attorney with a lab report showing over a pound had been seized. During the weekend, defense counsel prepared a suppression motion challenging the search of the entire quantity of marihuana. On Monday, March 20, 1978, at the pretrial hearing, it became obvious that the State intended to introduce the full amount of marihuana. The defense moved to withdraw its announcement of ready. The court found that the defense was aware of the amount of marihuana since at least the previous Friday and refused to allow them to withdraw their announcement. The court then conducted a hearing on the motion to suppress which was denied. A jury was selected and trial had the following day.

The decision not to allow a withdrawal of an announcement of ready is reviewable by an abuse of discretion standard. Cooper v. State, 509 S.W.2d 565 (Tex.Cr.App.1974); Guerrero v. State, 487 S.W.2d 729 (Tex.Cr.App.1972). The record indicates that the defense was aware of the full amount of marihuana and had prepared an appropriate motion to suppress. Trial was not had until the following day. Appellant has not indicated any specific harm. Under these circumstances, no abuse of discretion is shown.

Complaint is made of the following argument:

“ . . . And he wants you to sort of pat him on the back. Give him probation. Let him go out the door. I don’t think that’s what the members of our community want. I don’t think that’s what they believe. I don’t believe they think that’s what should happen.”

No objection was made. Nothing is presented for review.

Mahan’s final two contentions concern jury argument which he contends indicated there was another offense the State could not charge him with and that he was involved in selling marihuana. The complained of argument went as follows:

“Mr. Old got up and said the one word that I had been dying to say. He said that we were trying to infer that this man was selling it. Well, I’ll tell you what. You use your common sense at all this dope. I think it speaks for itself. I know what I think. I know what I’ve heard from the evidence.
“MR. OLD: Your Honor, I’m going to object. He is trying to change the charge. I’d like to take a Bill.
“THE COURT: Well, I’ll overrule that objection.
“MR. COX: I wish I could change it.
“MR. OLD: Your Honor, now that was improper. I’m going to ask that be stricken.
“THE COURT: Sustain the objection. Stay in the record.
“MR. COX: Y’all look at the evidence. Y’all look at the evidence. Y’all see the amount.”

Mahan’s argument concerning the prosecutor’s allusion to another offense is based on the sidebar remark made after the court’s initial ruling. No adverse ruling was obtained by appellant. Taken in context, while the sidebar remark was clearly improper, it does not appear that it implied any additional information that was being withheld from the jury. The court’s ruling was sufficient to cure the error, if any.

The remarks concerning the sale of marihuana were a response to an earlier argument made by defense counsel. Defense counsel had earlier argued:

“I told you the first time I spoke to you Mr. Mahan would plead guilty because he is guilty. What he is guilty of is possession of more than four ounces of marijuana. He doesn’t deny that. That is all he is guilty of. Somewhere in the back of your mind Mr. Cox is trying to work this selling business in and this man is not being tried for selling. He is being tried for possession only.”

Mahan was being tried for possession. His attorney’s argument explicitly stated that possession was all he was guilty of. The evidence indicated an amount of marihuana beyond what would normally be associated with personal use. In view of the defense counsel’s assertion and the evidence, it was proper for the State to ask the jury to consider for itself, based on the evidence, if defense counsel’s statement was justified.

There is no reversible error. The judgment is affirmed.

ROBERTS, Judge,

dissenting.

The majority opinion says the prosecutor’s argument was proper because the evidence indicated the appellant had more marihuana than he could use personally. The majority does not detail the evidence. In the dining room closet the appellant had three brown paper bags containing a total of 4.69 ounces of marihuana. An ashtray held cigarette butts containing another 0.11 ounces. Growing in a two-foot by six-foot flower bed were 144 marihuana plants bearing leaves which weighed 22.4 ounces.

The majority opinion says that the prosecutor was responding properly to the appellant’s argument. As the quoted argument of appellant’s counsel states, the prosecutor opened the subject of selling. Again the majority fails to reveal the record, which begins with the cross-examination of the appellant:

“Q. Defendant Mahan, are you asking this jury to believe that you grew all this for your own personal use?
“A. Yes, sir, I sure am.
“Q. And you are going to smoke all this all by yourself?
“A. In a period of a couple years, yes, sir, I figured I would probably use that much.
* * * * * *
“Q. Why would you grow so much marijuana? Did you ever give any to your friends?
“A. No, never.
“Q. Did you ever sell any to your friends?
“A. No, never.
“Q. Just had this big bag all for yourself?
“A. That big bag is not so large, really, I don’t think. Yes, sir, it was for myself. I’m sorry.
* * * * 5$C *
“Q. You want this jury to believe that you grew all that marijuana for just ol’ Larry; is that right?
“A. That’s correct. That is fact.
“MR. COX: We pass the witness.”

The prosecutor continued this theme in his first argument:

“This was a bunch of marijuana. This was a lot of marijuana being cultivated in the Defendant’s backyard. We heard testimony the marijuana was throughout the house. * * * m let you draw from your own conclusions the amount, [sic] You know, I find it awful hard to believe that this was grown for one person.”

Only after all this were the arguments made which are quoted by the majority. It was the appellant who was responding to the prosecutor’s argument, not vice versa. The prosecutor seemed to think that the appellant had “opened the door,” but in fact the prosecutor had been trying to open it himself; his argument was not a proper reply.

The prosecutor’s argument had another vice. The remark, “I know what I think,” constituted improper testimony by the prosecutor.

The majority concedes that the prosecutor’s sidebar remark was improper, but it pretends that we can ignore the prejudicial effect because “no adverse ruling was obtained” and the trial court’s ruling, “Sustain the objection,” cured the error. Sometimes this Court is too much concerned with magic words and too little concerned with whether an appellant had a fair trial. The prosecutor implied throughout this trial that the appellant was a marihuana seller when there was no evidence of it and no charge of it. The prosecutor also improperly opposed probation because of community expectations. The appellant should have a new trial.