author: FRANKS, Judge.

text:
    Virgin PERSON et al., Plaintiffs-Appellees, v. Eunice M. FLETCHER, Defendant-Appellant.
    Court of Appeals of Tennessee, Eastern Section.
    Jan. 19, 1979.
    Certiorari Denied by Supreme Court May 7, 1979.

      Phillip A. Fleissner of Chambliss, Bahner, Crutchfield, Gaston & Irvine, Chattanooga, for defendant-appellant.
    Michael L. West of Weill, Ellis, Weems & Copeland, Chattanooga, for plaintiffs-appel-lees.
   OPINION

FRANKS, Judge.

This appeal presents for determination what are all costs as expressed in Rule 68 of the Tennessee Rules of Civil Procedure.

Rule 68, T.R.C.P., provides at any time more than ten days before trial a party defending against a claim may make an offer of judgment, together with the costs then accrued. If the offer is not accepted within ten days and the case goes to trial, and the judgment obtained by the offeree is not more favorable than the offer, then the offeree shall pay all costs accruing after the making of the offer.

In this case, an offer was made pursuant to the rule, the cause proceeded to trial and judgment and, following the judgment which was less favorable than the offer, defendant-appellant moved the trial court to assess all costs against plaintiffs-appel-lees in accordance with Rule 68, T.R.C.P. The trial judge, in response to the motion, ruled in his order:

Upon consideration of the legal authorities and arguments of counsel, the Court found that the provisions of Rule 68, Tennessee Rules of Civil Procedure, are not interpreted to permit any costs other than the costs taxed by the Clerk of the Court in passing upon an application for costs under Rule 68. The Court was of the opinion that Rule 68 does not provide for the taxation of expenses as requested by the defendant herein, nor the allowance of counsel fees as requested by the defendant herein.

Defendant insists that the phrase “all costs”, contained in Rule 68, would include the following enumerated costs and expenditures incurred by defendant:

1. Costs taxed by the Clerk of the Court.
2. Cost for photographs necessary for use at the trial.
3. Deposition costs which were essential to prepare the case for trial.
4. Court reporter’s fee for attendance at the trial.
5. The defendant’s reasonable counsel fees from the time the Offer of Judgment was made through the trial and entry of judgment in the case.

Defendant’s counsel cite no authorities for this proposition but argue that Rule 68, T.R.C.P., is patterned after the federal rule and, under federal law, the foregoing items may be included as elements of costs for this purpose. We are urged to declare these items as costs under Rule 68, and counsel contend to hold otherwise Rule 68 will provide no deterrent to the unreasonable prosecution of nuisance value cases.

While Rule 68, T.R.C.P., is patterned after Federal Rule 68, this state has not enacted a law comparable to the federal law found at 28 U.S.C., § 1920, which expressly empowers the judge or clerk of any court of the United States to tax certain enumerated items as cost. This federal statute is the controlling distinction between Rule 68, T.R.C.P., and the federal rule insofar as what may be included as items of costs.

What constitutes costs is determined from legislative enactment on the subject and this principle is expressed in American Jurisprudence, vol. 20, Costs, § 52:

Inasmuch as the recovery of costs is dependent on statutory provision, a party who has been adjudged to be entitled to recover or tax costs may include in his bill or memorandum only such items of expense as are taxable by virtue of legislative enactment.

The Supreme Court in the case of Railroad v. Boswell, 104 Tenn. 529, 58 S.W. 117 (1900), overruling an effort to include a fee as costs not authorized by statute and quoting its earlier case of Mooneys v. The State, 10 Tenn. 578, tersely stated: “costs are created by statute; unless there be some law to authorize it, the Court cannot ex officio give costs against any one.” At common law, costs were not recoverable eo nomine, 20 C.J.S. Costs § 2. In the absence of statute expressly designating the claimed items as costs, we hold the costs referred to in Rule 68, T.R.C.P., are those costs authorized by statute as assessed by the trial court in this case.

A further argument is made by defendant that the trial judge should have conducted an evidentiary hearing on the issue of plaintiffs’ bad faith to determine whether or not attorneys’ fees should be assessed as costs. This argument is without merit since no statute authorizes attorneys’ fees to be included as costs, no hearing of this nature is provided in Rule 68 and the record does not indicate any request for an evidentiary hearing was made.

For the foregoing reasons the assignments of error are overruled, the judgment of the trial court is affirmed and the costs incident to this appeal are assessed against appellant.

PARROTT, P. J., and GODDARD, J., concur.


source: Caselaw Access Project

author: DENTON, Justice.

license: Public Domain

text:
    TEXAS WATER RIGHTS COMMISSION et al., Petitioners, v. CROW IRON WORKS et al., Respondents.
    No. B-7903.
    Supreme Court of Texas.
    May 30, 1979.
    Mark White, Atty. Gen., Douglas G. Ca-room, Asst. Atty. Gen., Austin, King, Waite & Guerra, Neal P. King, Mission, for petitioners.
    Booth, Lloyd & Simmons, Frank R. Booth, Austin, Stubbeman, McRae, Sealy, Laughlin & Browder, James W. Wilson, Austin, for respondents.
   DENTON, Justice.

Crow Iron Works, L.M.B. Corp., Gustave Ring and Hidalgo County Water Control and Improvement District No. 15, respondents here [hereinafter “Crow Iron Works, et al.”], brought suit against the Texas Water Rights Commission, petitioner here. Several water districts intervened on behalf of the Commission. The suit seeks to set aside a Commission order denying Crow Iron Works, et al.’s petition to upgrade water rights awarded them or their predecessors under the judgment entered in the Lower Rio Grande Valley water rights adjudication. State v. Hidalgo County W.C.I.D. No. 18, 443 S.W.2d 728 (Tex.Civ.App.—Corpus Christi 1969, writ ref’d n. r. e.) [hereinafter “the Valley Water Case”]. The primary issue is whether the judgment in the Valley Water Case is res judicata of the water rights asserted here. The trial court upheld the Commission’s determination that the Valley Water Case is res judi-cata of Crow Iron Works, et al.’s claims. The court of civil appeals reversed and remanded the cause for a trial on the merits. 569 S.W.2d 638. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

The Valley Water Case was a massive adjudication brought by the State of Texas in October 1956 to determine rights to the use of the United States’ share of the waters of the Rio Grande between the Falcon Reservoir and the Gulf of Mexico. The case involved approximately 3,000 named defendants and 850,000 acres of land. It was not completed until 1970 when this Court refused all applications for writ of error with the notation “no reversible error.”

The State’s fifth amended petition in the Valley Water Case prayed that “the Court determine the validity and priority in point of time of each and every right to appropriate, impound, divert and use waters of the Rio Grande claimed by Defendants” and that “the Court permanently enjoin those Defendants found without valid and subsisting water rights . . . from appropriating, impounding, diverting or using waters of the Rio Grande.” On September 21, 1962, the trial court took judicial custody of the waters of the Rio Grande and filed a lis pendens notice in each of the four counties affected by the suit. The notice stated:

[S]uch suit is a cause of action which affects any and all claim of right of land in Starr, Hidalgo, Willacy and Cameron Counties, Texas, alleging any nature of right to use waters of the Rio Grande River as of October 17, 1956, or thereafter ... . [A]ll persons hereafter that may be interested in obtaining to any land such right or rights, if any, are hereby put on notice that said suit is pending, and that the nature of the law suit is such that the final judgment will determine the nature of such right ....

The trial court required “all persons owning real property outside of the organized districts, claiming right to use any of the waters of the Rio Grande to make themselves parties to the suit and submit to the jurisdiction of the Court.” The trial court entered its final decree on August 1, 1966. The decree divided water rights into five classes and adopted a system of weighted priorities under which water would accrue faster to higher priorities than to lower priorities.

The court of civil appeals in the Valley Water Case affirmed in part and reversed in part. The court classified the water rights of irrigators into two classes: Class A (Legal) rights and Class B (Equitable) rights. Class A rights were given those persons who had complied with the appropriation statutes of the State or whose rights had been recognized by the State. Generally, use of water prior to the commencement of the Valley Water Case, coupled with a valid paper claim to water, entitled one to a Class A right. Class B rights were given those who had been making a good faith use of the waters of the Rio Grande for irrigation purposes prior to the commencement of the Valley Water Case, but who did not qualify as Class A users. Generally, good faith use of water without a valid paper claim entitled one to a Class B claim.

Both Class A rights and Class B rights are entitled to an allotment of up to 2.5 acre-feet per acre, but water is credited to Class A rights at a 70% faster rate than it is credited to Class B rights. As a practical matter, the difference between Class A rights and Class B rights is that in times of extreme drought when there is insufficient water to provide everyone with the full 2.5 acre-feet per acre allotment, Class B will suffer proportionally greater shortages than Class A rights.

Crow Iron Works, et al. purchased unuti-lized paper water rights from entities who were parties to the Valley Water Case. Crow Iron Works, L.M.B. Corp. and Hidalgo County W.C.I.D. No. 15 all purchased their rights from Louis B. Hexter, a party to the suit and a good faith irrigator prior to the inception of the suit. Hexter purchased these unutilized rights from Border Development Co. through Hidalgo County W.C. I.D. No. 1. The purchase occurred after the inception of the suit but before the lis pen-dens notice in 1962 and before the entry of final judgment in 1966. Similarly, Gustave Ring, a party to the suit, purchased his rights from Hidalgo and Willacy County W.C.I.D. No. 1, also a party to the suit. Gustave Ring was a good faith irrigator before the inception of the suit, but purchased these unutilized paper rights during the pendency of the suit. Both Hexter and Ring were awarded Class B rights in the Valley Water Case.

The court of civil appeals in the Valley Water Case discussed Hexter’s claims in its per curiam unpublished supplemental opinion:

A claim is made for a Class I (trial court) priority which would place these lands in Class A as established by this court. This claim is based upon the conveyance of a water right from Hidalgo County Water Control and Improvement District No. One to Border Development Company and then to Hexter.
The date of this conveyance is long after the court took judicial custody of the American waters of the Rio Grande. See, statement relating to Hidalgo County Water Control and Improvement District No. Thirteen.
Hidalgo County Water Control and Improvement District No. Thirteen . . . It may be that such state authority as will control and regulate the waters of the Rio Grande after the determination of this suit would be empowered to make some adjustment in this situation, but neither the trial court nor this court in the present cause can recognize contracts or actions taken by parties, pendente lite, while the Rio Grande waters were in judicial custody.

State v. Hidalgo County W.C.I.D. No. 18, No. 261 at 9, 10-11 (Tex.Civ.App.—Corpus Christi 1969, writ ref’d n. r. e.) (unreported) [emphasis added].

With respect to Gustave Ring’s claims under the rights conveyed by Hidalgo and Willacy W.C.I.D. No. 1, the court of civil appeals stated:

It appears that subsequent to the filing of this suit and the trial court’s action in taking judicial custody of the American waters of the Rio Grande, there were in some instances [Gustave Ring included] additional contracts executed by the district which, so it is contended, operated to vest a legal title to a water right in some of the Willacy County claimants. Because these contracts or purported conveyances were executed pendente lite, we cannot recognize them as forming a basis for an equitable claim or raising an equitable claim to a legal status.

443 S.W.2d at 754 [emphasis added].

The court of civil appeals judgment on rehearing in the Valley Water Case concludes:

It is FURTHER ORDERED, ADJUDGED AND DECREED by the Court that any and all relief sought by any party hereto which is not specifically granted herein be, and the same is hereby denied.

Crow Iron Works, et al. contend that the court of civil appeals reserved the question of the status of their water rights by the above passages. This contention is without merit. We interpret the above passages as applications of the doctrine of lis pendens. We conclude that the doctrine of res judica-ta, coupled with the doctrine of lis pendens, precludes the recognition of the water rights asserted here.

Generally, the lis pendens doctrine states that a court which has acquired jurisdiction of a cause of action is entitled to proceed to the final exercise of that jurisdiction without the interference of anyone with the subject matter or res before the court. See, 37 Tex.Jur.2d, Lis Pendens, § 1 (1962); Olds, Lis Pendens, Hous.L.Rev. 221 (1966). Under this doctrine, one acquiring an interest in the property involved in a lawsuit takes the interest subject to the parties’ rights as finally determined by the court. 5 G. Thompson, Commentaries on the Modern Law of Real Property § 4508, at 391 (1924 & Supp.1958); 5 H. Tiffany, the Law of Real Property § 1294, at 82 (1939 & Supp.1979). Mr. Justice Joseph Story expressed the rule and rationale of lis pendens as follows:

[H]e who purchases during the pendency of a suit, is held bound by the decree that may be made against the person from whom he derives title . . . . [I]t is a rule founded upon a great public policy; for, otherwise, alienations made during a suit might defeat its whole purpose, and there would be no end to litigation. And hence arises the maxim, Pendente lite, nihil innovetur; the effect of which is not to annul the conveyance, but only to render it subservient to the rights of the parties in the litigation. As to the rights of the parties, the conveyance is treated as if it never had any existence; and it does not vary them.

1 J. Story, Equity Jurisprudence § 406 (6th ed. 1853) (footnotes omitted). Texas courts follow the lis pendens rule. Hartel v. Dishman, 135 Tex. 600, 145 S.W.2d 865 (1940); Rio Bravo Oil Co. v. Hebert, 130 Tex. 1, 106 S.W.2d 242 (1937).

In the Valley Water Case, the court exercised jurisdiction over all claims to water rights in the lower Rio Grande. The predecessors of Crow Iron Works, et al. were parties to this suit and therefore had notice of the extent of the lawsuit. During the pendency of the litigation the predecessors purchased unutilized paper water rights from the parties who owned them at the inception of the lawsuit. In this context, the language of the court of civil appeal’s opinion in the Valley Water Case is nothing more than a pronouncement of the lis pendens doctrine. The court was protecting its power to determine the water rights as they existed at the inception of the litigation. The language indicates that persons were not allowed to litigate rights which they claimed as a result of contracts executed pendente lite. This by no means authorized the litigation of these rights at a later time. The language in the court of civil appeals opinion indicating that a state authority might be empowered “to make some adjustment in this situation” means that Crow Iron Works, et al. might seek to have that state agency recognize in them the portion of the rights their predecessors transferred to them. Nevertheless, this would afford them only those rights which the adjudication granted their predecessors who were the parties entitled to assert the rights at the inception of the litigation.

The doctrine of res judicata states that a cause of action once finally determined, without appeal, between the parties, on the merits, by a competent tribunal, cannot afterwards be litigated by new proceedings either before the same or any other tribunal. Steakley & Howell, Ruminations on Res Judicata, 28 Sw. L.J. 355 (1974). The scope of res judicata is not limited to matters actually litigated; the judgment in the first suit precludes a second action by the parties and their privies not only on matters actually litigated, but also on causes of action or defenses which arise out of the same subject matter and which might have been litigated in the first suit. Griffin v. Holiday Inns of America, 496 S.W.2d 535 (Tex.1973); Abbott Laboratories v. Gravis, 470 S.W.2d 639 (Tex.1971); Ogletree v. Crates, 363 S.W.2d 431 (Tex.1963); Hanrick v. Gurley, 93 Tex. 458, 56 S.W. 330 (1900).

All the requirements of res judicata have been shown in this cause. Although the record does not reveal whether Crow Iron Works, et al.’s predecessors at the time of the inception of the litigation asserted the water rights in question here, they might have asserted these rights. We therefore hold that the judgment in the Valley Water Case is res judicata of the water rights asserted by Crow Iron Works, et al. Most of the policy considerations underlying the doctrine of res judicata, including the desirability of stable decisions and economy of court time, require this holding. See, Steakley & Howell, supra at 358-59.

The judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.

JOHNSON, J., not sitting.

      . Both the Valley Water Case and the decision in Valmont Plantations v. State of Texas contain thorough summaries of the history of water rights along the Rio Grande. 443 S.W.2d 728, 733-39; Valmont Plantations v. State of Texas, 346 S.W.2d 853, 855-78 (Tex.Civ.App.-San Antonio 1961), aff'd, 163 Tex. 381, 355 S.W.2d 502 (1962). These two landmark cases rectified the almost hopeless confusion in Texas water law prior to those decisions. We refer to them here for the historical background material relevant to the cause before us.


author: BARROW, Justice.

text:
    Erle Douglas McLEOD, et al., Relator, v. Honorable Ed J. HARRIS, Judge, et al., Respondents.
    No. B-8228.
    Supreme Court of Texas.
    May 30, 1979.
    Rehearing Denied June 27, 1979.

      Fisher, Roch & Gallagher, Mike T. Gallagher, Houston, Shirley, Shirley & Mackey, Michael G. Shirley, Texas City, for relator.
    Elmo Schwab, Thornton & Dunnam, R. Richard Thornton, Galveston, for respondents.
   BARROW, Justice.

The question presented here is whether respondent, Honorable Edward J. Harris, Judge of the 10th Judicial District Court of Galveston County, is required by the provisions of Article 200a, Section 6 to request the Presiding Judge of the Second Administrative District to hear relator’s motion to recuse Judge Harris from hearing Cause No. 26,651, In the Matter of the Marriage of Erie Douglas McLeod and Sarah Helms McLeod which is now pending in the 306th Judicial District Court of Galveston County. We hold that the statute requires Judge Harris to make such request and conditionally grant the writ of mandamus.

Section 6 of Article 200a was amended by the 65th Legislature effective August 29, 1977 to provide in part:

“It shall be the duty of any district judge of any district within the Administrative District to diligently discharge the administrative responsibilities of office, to rule on a case within three months after that case has been taken under advisement, to extend the regular terms of his court, and to call special terms, when necessary to carry out the purposes of this Act and dispose of pending litigation. It shall also be the duty of a district judge in whose court an election contest or suit brought for the removal of a local official is filed to request the Presiding Judge of the Administrative Judicial District to assign a judge of the Administrative District who is not a resident of the county to hold a special or regular term of court in that county in order to dispose of such suits. A DISTRICT JUDGE SHALL REQUEST THE PRESIDING JUDGE TO ASSIGN A JUDGE OF THE ADMINISTRATIVE DISTRICT TO HEAR ANY MOTIONS TO RECUSE SUCH DISTRICT JUDGE FROM A CASE PENDING IN HIS COURT.
[The remainder of this section refers to matters not involved in this controversy.] (Emphasis Added)

Cause No. 26,651, being a suit for divorce, was filed by relator in the 306th Family District Court of Galveston County on June 13, 1978, but was assigned to Judge Harris because of a temporary vacancy in the office of Judge, 306th District Court. On January 26, 1979, relator filed his motion in said cause seeking to have Judge Harris recuse himself from hearing this divorce action because of the close personal relationship of Judge Harris and his wife with Sarah Helms McLeod and because of political differences between relator and Judge Harris. On February 6, 1979, Judge Harris conducted a hearing on said motion after refusing to request the Presiding Judge to appoint another judge to hear the motion and subsequently entered an order denying the motion. Relator declined to offer evidence at this hearing before Judge Harris, but instead filed this proceeding seeking a writ of mandamus to compel Judge Harris to comply with the provisions of Article 200a, Section 6.

The statute states in mandatory language that the district judge shall request the Presiding Judge to assign a judge to hear any motions to recuse. Respondents urge, however, that this provision has reference only to the preceding sentence of the statute and therefore it is applicable only to election contests or suits brought for the removal of local officials. Neither grammatical construction of the section nor the legislative history of the 1977 amendment justifies such a construction.

The 1977 amendment enumerates several duties of district judges. It provides that he shall rule on a case within three months after that case has been taken under advisement. Also where an election contest or suit brought for the removal of a local official is filed in his court, the district judge “shall request the Presiding Judge of the Administrative Judicial District to assign a judge of the Administrative District who is not a resident of the county” to dispose of such suit. There then follows the sentence in question which states that the district judge “shall request the Presiding Judge to assign a judge of the Administrative District to hear any motions to recuse such district judge from a case pending in his court.” This requirement is unrelated to the prior sentence regarding election contests and suits for removal of a local official. Furthermore, there would be no need to repeat the prior mandatory direction that the district judge shall request the Presiding Judge to assign another judge to dispose of these suits. See Sullivan v. Berliner, 568 S.W.2d 844 (Tex.1978).

The legislative history of the 1977 amendment is contained in Interim Report of the Judiciary Committee of the House of Representatives of the Sixty-Fifth Legislative Session. This report states in part:

“MOTIONS TO DISQUALIFY, ELECTION CONTESTS, SUITS TO REMOVE COUNTY OFFICIALS
“The Presiding Judge should be given the duty to hear all motions to disqualify a judge from a case or to assign another judge to hear such motions. It should be the duty of the Presiding Judge to hear or to assign a visiting judge to hear any election contests or suits to remove county officials in a county. It is probably asking too much of judicial impartiality to expect a judge to rule objectively on a motion that he disqualify himself from a case for cause if he has not already re-cused himself voluntarily. By the same token, it is unfair to ask a judge of a county to hear an election contest or removal case when the judge himself is a political creature, perhaps aligned with one of the factions involved. A judge should not be placed in the position or be given the opportunity to rule in such cases. The Presiding Judge under the present statute has no authority to withdraw a case from a judge and the procedures for disqualifying the judge or removing him when he refused to do so are time-consuming and uncertain. The Committee recommends that the Presiding Judge be given the authority to assign a visiting judge to hear such matters, or to hear those matters himself.”

It is clear from not only the heading of this section, but also from the contents thereof that the Committee was concerned about three separate situations where a visiting judge should properly be called upon to exercise judicial discretion.

It should be pointed out that under the terms of this statute, the motion to recuse does not in itself disqualify the local judge, nor do we here express any opinion relative to the merits of relator’s motion. The statute merely requires that another judge be assigned to determine the merits of the motion.

We conclude that under the express terms of Article 200a, Section 6, Judge Harris. had the mandatory duty to request the Presiding Judge of the Second Administrative District to assign another district judge to hear relator’s motion to recuse. We are certain that Judge Harris will comply with this opinion and request the Presiding Judge to assign another judge to hear relator’s motion. In the event he fails to do so, a writ of mandamus will issue. The petition for writ of mandamus is conditionally granted.

      . All statutory references are to Texas Revised Civil Statutes Annotated.

      . Parallel to Article 200a, Section 4, the district judges of the Second Administrative District have adopted Rules of Procedure including the following rule:
      “In accordance with Art. 200a, Sec. 6, V.A. T.S. (as amended), it shall be the duty of a District Judge, in whose court is filed a motion for that judge to recuse himself, to request the Presiding Judge to assign another judge to hear such motion.”
      A similar rule has been adopted by other administrative districts. Since the rule in question is also court-made, we do not have a constitutional question of separation of powers.

      . The basis for disqualification of a judge is contained in Article V, Section 11 of the Texas Constitution which provides in part:
      “No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case.”
      This constitutional prohibition has been implemented by Art. 15, Tex.Rev.Civ.Stat.Ann., Art. 30.01 of the Tex.Code Crim.Pro.Ann., and by Canon 3C of the Code of Judicial Conduct as promulgated by the Supreme Court of Texas, amended as of February 18, 1977.


author: PER CURIAM.

text:
    Mila K. CAMERON, Petitioner, v. Honorable Joe R. GREENHILL et al., Respondents.
    No. B-8286.
    Supreme Court of Texas.
    May 30, 1979.
    Rehearing Denied June 27, 1979.
    J. P. Darrouzet, Austin, for petitioner.
    Mark White, Atty. Gen., Douglas B. Owen, Asst. Atty. Gen., Austin, for respondents.
   PER CURIAM.

Petitioner, Mila K. Cameron, a licensed attorney, brought this suit against respondents, nine justices of the Supreme Court of Texas, complaining of an order of the Supreme Court setting a special fee assessment against State Bar members. Petitioner challenged this action in the 53rd Judicial District Court of Travis County as not being in compliance with the Administrative Procedure and Texas Register Act, Article 6252-13a . The district court sustained respondents’ plea to the jurisdiction that the Act expressly exempts courts from its application and dismissed the cause. The court of civil appeals affirmed and the petitioner has timely filed her application for writ of error. 577 S.W.2d 389.

In conjunction with her application for writ of error, petitioner has filed a motion urging that the respondents are disqualified from determining the merits of her application or, in the alternative, each member of the Supreme Court should re-cuse himself from participation in the final determination of this matter. We hold that we are not disqualified and, therefore, have a duty to serve.

On January 27, 1978 the Board of Directors of the State Bar of Texas voted to recommend and request that the Supreme Court of Texas order a referendum of the membership of the State Bar on the question of a one-time fee assessment for the sole purpose of reducing any indebtedness on the Texas Law Center. The Supreme Court ordered such referendum in accordance with the Texas Revised Civil Statutes, Annotated, Article 320a-l, Section 4, Subdivisions (b) and (c), and Article IV, Section 4, the Rules Governing the State Bar of Texas, and the results as certified by the Clerk of this Court show that more than 51% had voted as required by said Act and that the one-time fee assessment was favored by approximately 60% of those voting. The Supreme Court accordingly entered an order providing for this fee and statements were sent to the membership of the State Bar. Petitioner has not paid this fee assessment and by this suit challenges the Supreme Court’s authority to order it paid.

Article V, Section 11, of the Texas Constitution provides in part that no judge shall sit in any case “wherein he may be interested . . . The legislature has implemented this provision by the enactment of Article 15. It is a settled principle of law that the interest which disqualifies a judge is that interest, however small, which rests upon a direct pecuniary or personal interest in the result of the case presented to the judge or court. Sun Oil Company v. Whitaker, 483 S.W.2d 808, 823 (Tex.1972); Hidalgo County Water Improve. Dist. No. 2 v. Blalock, 157 Tex. 206, 301 S.W.2d 593 (1957).

Petitioner does not assert that any of the justices have a pecuniary or personal interest in the case and it is obvious that none does. In fact, the interest of respondent-justices is no greater than that of any other member of the State Bar of Texas or even of the public in general. In applying the rule of disqualification, we should endeavor to follow the spirit and intent of the Constitutional rule. The Constitution does not contemplate that judicial machinery shall stop. If this is threatened, the doctrine of necessity will permit the judge to serve. Hidalgo County Water Con. & Imp. Dist. No. 1 v. Boysen, 354 S.W.2d 420, 423 (Tex.Civ.App.-San Antonio 1962, writ ref’d). Respondents are parties only because they are named as parties. To hold that merely naming a judge as a party would disqualify him would put power in the hands of litigants to frustrate our judicial system.

Petitioner urges that due process requires our disqualification under the United States Constitution and the Texas Constitution. A similar contention has been rejected by other courts involving virtually identical situations. In Buschbacher v. Supreme Court of Ohio, No. C-2-75-743, 75-751, 76-309 (S.D. Ohio), a three judge district court denied a claim of disqualification of the Ohio Supreme Court justices to determine the constitutionality of Rule 7 of that court. That rule requires practicing attorneys to register and pay a biennial fee. The Supreme Court of the United States summarily affirmed the judgment of this three-judge district court. 430 U.S. 901, 97 S.Ct. 1167, 51 L.Ed.2d 577 (1977). In Ables v. Fones, 587 F.2d 850 (6th Cir. 1978), a similar claim of due process disqualification was rejected in a suit questioning the right of the Tennessee Supreme Court to hear challenges to its Rule 42 which provides for annual registration of attorneys to practice law in Tennessee.

The Supreme Court of the United States has unanimously rejected the broad claim that due process is violated by the combination of investigative and adjudicative functions in an administrative board. Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). In support of this holding the Court said:

“Judges repeatedly issue arrest warrants on the basis that there is probable cause to believe that a crime has been committed and that the person named in the warrant has committed it. Judges also preside at preliminary hearings where they must decide whether the evidence is sufficient to hold a defendant for trial. Neither of these pretrial involvements has been thought to raise any constitutional barrier against the judge’s presiding over the criminal trial and, if the trial is without a jury, against making the necessary determination of guilt or innocence. Nor has it been thought that a judge is disqualified from presiding over injunction proceedings because he has initially assessed the facts in issuing or denying a temporary restraining order or a preliminary injunction. . . . We should also remember that it is not contrary to due process to allow judges and administrators who have had their initial decisions reversed on appeal to confront and decide the same questions a second time around. .
“The initial charge or determination of probable cause and the ultimate adjudication have different bases and purposes. The fact that the same agency makes them in tandem and that they relate to the same issues does not result in a procedural due process violation. . . . ” Id. at 56-58, 95 S.Ct. at 1469-1470.

See also: Barger v. Brock, 535 S.W.2d 337, 338 (Tenn.1976).

We conclude that it is not a due process violation for the justices of this Court who ordered the submission of a referendum of the fee assessment at the request of the State Bar directors to determine the legality of such assessment. The respondent-justices are, therefore, not disqualified from considering petitioner’s application for writ of error. Since we are not disqualified, it is our constitutional duty to serve. Sun Oil Company v. Whitaker, supra.

Insofar as the merits of this case are concerned, the court of civil appeals has correctly determined that provisions of the Administrative Procedure Act do not apply to the acts of this Court under the express terms of Article 6252-13a, Section 3(1), which reads as follows:

“ ‘Agency’ means any state board, commission, department, or officer having statewide jurisdiction, other than an agency wholly financed by federal funds, the legislature, the courts, the Industrial Accident Board, and institutions of higher education, that makes rules or determines contested cases.” (Emphasis added).

The application for writ of error is refused.

      . Justices Price Daniel and T. C. Chadick have now retired and have been replaced by Justices Franklin S. Spears and Robert M. Campbell, but are still joined as defendants in their official capacity.

      . All references are to Texas Revised Civil Statutes Annotated.

      . There are other examples which can be added to this list, such as the determination of the validity or constitutionality of a rule of civil procedure and the consideration of motions for rehearing.


text:
    FIREMEN’S AND POLICEMEN’S CIVIL SERVICE COMMISSION OF the CITY OF FORT WORTH et al., Petitioners, v. B. G. BLANCHARD et al., Respondents.
    No. B-8365.
    Supreme Court of Texas.
    June 13, 1979.
    Arthur R. Petersen, City Atty., Walter W. Leonard and Richard E. Henderson, Asst. City Attys., Fort Worth, for petitioners.
    Farrar & Claunch, Jim Claunch, Fort Worth, for respondents..
   PER CURIAM.

This is an appeal from an order of the Fort Worth chief of police suspending two officers under his command. The officers, B. G. Blanchard and R. C. Sutherland, received disciplinary suspensions for using excessive force while making an arrest. Both suspensions were for a period of less than fifteen days. The principal issue is whether the Firemen’s and Policemen’s Civil Service Act, Article 1269m, Tex.Rev.Civ.Stat.Ann. allows an officer a right to appeal a temporary, disciplinary suspension.

The officers filed an appeal with the Fort Worth Civil Service Commission. A hearing was held and the orders of suspension were affirmed by the Commission. Both officers next appealed to the district court seeking reinstatement with back pay for the periods of suspension. The trial court found that the Commission’s action in sustaining the suspensions was supported by substantial evidence. The Court of Civil Appeals, however, disagreed finding no evidence connecting either officer to the events leading to their respective suspensions. 577 S.W.2d 337. The Court of Civil Appeals therefore reversed the judgment of the trial court and rendered judgment that the officers be reinstated with pay for the periods of suspension.

Although not mentioned by the parties or considered by the lower courts, the central issue is whether the Firemen’s and Policemen’s Civil Service Act grants an officer a right to appeal a temporary, disciplinary suspension. Not every act of the Commission is subject to judicial review. Firemen’s & Policemen’s Civil Service Commission v. Kennedy, 514 S.W.2d 237 (Tex.1974). Assuming compliance with basic constitutional guarantees, no right of appeal from the action of an administrative body or a civil service department exists unless provided by statute. Stone v. Texas Liquor Control Board, 417 S.W.2d 385 (Tex.1967); City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788 (1951); Fox v. Carr, 552 S.W.2d 885 (Tex.Civ.App.—Texarkana 1977, no writ).

The Firemen’s and Policemen’s Civil Service Act does not authorize an appeal from disciplinary suspensions which do not exceed fifteen days duration. See, Fox v. Carr, supra, and Attaway v. City of Mesquite, 563 S.W.2d 343 (Tex.Civ.App.—Dallas 1978, no writ). In Stone v. Texas Liquor Control Board, supra at 385-86, we said “there is no right of appeal from an administrative order unless the statute provides for the same or unless the order violates a constitutional right or adversely affects a vested property right.” Since the Act does not authorize an appeal from disciplinary suspensions and the police chief’s orders of suspension neither violate a constitutional right nor adversely affect a vested property right, the lower courts’ consideration of the present appeal is contrary to the well settled rule stated by this Court in Stone v. Texas Liquor Control Board, supra.

Pursuant to the authority conferred by Rule 483, Texas Rules of Civil Procedure, we grant the writ of error and, without hearing oral argument, the judgments of the courts below are reversed and set aside and the cause is dismissed.


author: ODOM, Judge.

text:
    Marvin FENTIS v. The STATE of Texas, Appellee.
    No. 51361.
    Court of Criminal Appeals of Texas.
    May 26, 1976.
    Rehearing Denied July 18, 1979.

      John W. Sayer, on appeal only, Houston, for appellant; Craig A. Washington and Ealy A. Bennett, Houston, of counsel.
    Carol S. Vance, Dist. Atty., Phyllis Bell and Robert C. Bennett, Jr., Asst. Dist. At-tys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This appeal is from a conviction for murder under our former Penal Code. A jury assessed punishment at thirty-eight years.

Two grounds of error are raised. The first contends that the trial court erred in admitting evidence of appellant’s resistance of arrest, flight, and eventual arrest, during which episode a police officer was shot in the knee. These events occurred in Garland; the murder forming the basis of this prosecution occurred in Houston. The trial court admitted all the above evidence upon the theory that the resistance to arrest, assault, and flight were probative of appellant’s guilt of the murder charge.

The record reflects that the deceased, a uniformed off-duty police officer, was shot six times and killed in the parking lot of the Silver Dollar Saloon in Houston a few minutes after midnight on October 27, 1972. The circumstances of the murder reveal no motive for the slaying. Appellant, who was described as having an extreme “underbite” in that his lower jaw protruded from his face, was identified by witnesses as having been inside the saloon earlier that evening with two other men. The only witness to the shooting said that after hearing shots he turned around and saw two men. One, whom he identified in court as appellant, was holding a gun. Both men successfully fled.

On March 4, 1973, three uniformed police officers were patrolling in Garland. They saw appellant walking on a sidewalk in a suspicious manner and stopped to question him. As they alighted from their police car, appellant turned and started walking toward them. When instructed to remove his hand from his coat pocket, he said “Fuck you, whitey,” pulled a pistol from his pocket, and commenced firing. After shooting one of the officers, he made his escape, but was apprehended a few minutes later.

We must decide whether the admissibility of the Garland confrontation, and running away, was authorized by the well-established rule that in certain circumstances flight is evidence of guilt. If so, then under Hunter v. State, Tex.Cr.App., 530 S.W.2d 573, 575, the shooting would be admissible as an extraneous offense incidental to the flight.

The test governing flight was aptly stated in Damron v. State, 58 Tex.Cr.R. 255, 125 S.W. 396, 397:

“Evidence of flight is admissible, where one is charged with an offense, on the ground, in substance, that it is some evidence of guilt, and amounts in effect to a quasi admission of guilt of the offense charged. If, however, the flight is in respect to another and different offense, it ought not to be considered as evidence of the guilt of an offense in which there was no flight.”

In short, the circumstances must indicate that the flight is “so connected with the offense on trial as to render it relevant as a circumstance bearing upon his guilt,” Hicks v. State, 82 Tex.Cr.R. 254, 199 S.W. 487, 488.

In Jones v. State, Tex.Cr.App., 481 S.W.2d 900, the State showed that one week after the primary offense the defendant committed a second robbery and attempted to flee, but was apprehended. We held that the attempted flight was more likely probative of consciousness of guilt of the second offense than the primary offense. Because the second offense was not otherwise admissible under any other exception to the rule barring the admission of extraneous offenses, the judgment was reversed. We reaffirm the holding in Jones, which is applicable whenever the flight sought to be shown follows and reasonably appears to be motivated by an extraneous offense, rather than the primary offense.

On the other hand, in Woods v. State, Tex.Cr.App., 480 S.W.2d 664, and Israel v. State, 158 Tex.Cr.R. 574, 258 S.W.2d 82, evidence of flight was held admissible even though there were intervening extraneous offenses because the facts in those cases indicated that the flight and the extraneous offenses were likely related to each other and were motivated by consciousness of guilt of the primary offense.

Here, too, an intervening extraneous offense of assault upon two police officers immediately preceded the flight. As in Woods, supra, and Israel, supra, and unlike Jones, supra, no motive for the extraneous offense independent of the primary offense appears. Instead, the circumstances strongly suggest that the extraneous offense and subsequent flight were all part of one effort to avoid a confrontation with law enforcement officers. See Hunter v. State, supra. The only motivation for the unprovoked attack that reasonably appears is consciousness of guilt of another offense. Any other explanation would go to the weight, not the admissibility, of the evidence. Ysasaga v. State, Tex.Cr.App., 444 S.W.2d 305; Carlisle v. State, 107 Tex.Cr.R. 408, 296 S.W. 889; Chastain v. State, 97 Tex.Cr.R. 182, 260 S.W. 172. The first ground of error is overruled.

The second ground of error contends that the trial court erred in denying appellant’s motion for new trial on the ground of jury misconduct.

The record reflects that after a verdict of guilty was returned on August 16, 1974, appellant filed a motion for new trial on August 23. A first amended motion was filed on September 3. On September 23, the trial court in open court apparently allowed appellant until October 3 to file a second amended motion for new trial and added that a hearing pursuant to that motion would be held on November 15, 1974.

The second amended motion for new trial and supporting affidavits were not filed until November 11 and 14, respectively. On November 27, 1974, a hearing was held at which the trial court granted the State’s motion to quash appellant’s subpoenas for juror-witnesses, finding that the second amended motion and affidavits were insufficient to justify any hearing on the merits. Sentence was then pronounced.

It is apparent that the November 11 motion was late-filed, there being nothing in the record to reflect that the trial court ever extended the time for filing the same past October 3. Article 40.05, V.A.C.C.P. Nevertheless, if the trial court had proceeded to conduct a hearing on the merits within twenty days after the motion was filed, such act would be construed as a finding of good cause for the late filing of the motion, see Art. 40.05, supra, and the question whether the trial court abused his discretion in overruling the motion would be properly presented for review. Arsola v. State, 138 Tex.Cr.R. 1, 133 S.W.2d 585, and authorities there cited.

Here, however, the trial court declined to allow appellant to present witnesses and therefore refused to entertain the motion. Where the motion was late-filed, no abuse of discretion has been shown. Defore v. State, Tex.Cr.App., 460 S.W.2d 128.

Because the trial court refused to hold a hearing on the late-filed second motion for new trial, we will not presume that an extension of the time for filing had been granted for good cause. Nothing is presented for review.

The judgment is affirmed.

ONION, P. J., dissents as to the admission of the extraneous offense.

      . See Fentis v. State, Tex.Cr.App., 528 S.W.2d 590, where this appellant’s conviction for assault with intent to murder a peace officer, such prosecution arising out of this shooting in Garland, was reversed after the State at trial adduced that appellant had committed the Houston murder that is the subject of this prosecution.


text:
    Thomas Peter GOSS, Appellant, v. The STATE of Texas, Appellee.
    No. 60898.
    Court of Criminal Appeals of Texas.
    May 23, 1979.
    Rehearing En Banc Denied July 11, 1979.
    Scott E. Segall, El Paso, for appellant.

      Steve W. Simmons, Dist. Atty. and Leo B. Garcia, Asst. Dist. Atty., El Paso, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for failure to stop and render aid. After appellant entered a plea of nolo contendere, the court assessed punishment at five years and granted probation.

In his first ground of error appellant attacks the indictment for its failure to include a proper allegation of the culpable mental state. In relevant part the indictment alleged that appellant did:

“. . intentionally and knowingly drive and operate a motor vehicle, to-wit: an automobile, and was then and there, while so driving said vehicle, involved in a collision with motorcycle occupied by one Ramiro Zaldivar, which said collision was an accident which then and there resulted in personal injury to said Ramiro Zaldi-var; and the said defendant, Thomas Peter Goss, after said accident, did then and there fail and refuse to immediately stop and remain at the scene of said accident and did then and there, after said accident, fail and refuse to render reasonable assistance to the said Ramiro Zaldivar, who was then and there injured as a result of said accident, . ”

Appellant does not deny that the indictment alleges he intentionally and knowingly drove an automobile, but responds to that allegation with the assertion that driving an automobile is not an offense under Texas law. Appellant’s attack focuses on the failure of the indictment to allege his state of mind as to the collision and as to his leaving the scene of the accident.

The prosecution was brought under Article 6701d, Secs. 38 and 40, V.A.C.S., which provide:

“Sec. 38. (a) The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of Section 40. Every such stop shall be made without obstructing traffic more than is necessary.
“(b) Any person failing to stop or to comply with said requirements under such circumstances shall upon conviction be punished by imprisonment in the penitentiary not to exceed five (5) years or in jail not exceeding one (1) year or by fine not exceeding Five Thousand ($5,000.00) Dollars, or by both such fine and imprisonment.”
“Sec. 40. The driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle which is driven or attended by any person shall give his name, address, and the registration number of the vehicle he is driving and shall upon request and if available exhibit his operator’s, commercial operator’s or chauffeur’s license to the person struck or the driver or occupant of or person attending any vehicle colliding with and shall render to any person injured in such accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if such carrying is requested by the injured person.”

It can be seen from the statutory language that no culpable mental state is expressly provided for this offense. Appellant relies on V.T.C.A., Penal Code Sec. 6.02. Sec. 6.02(b) provides:

“If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.”

The State contends this provision of the Penal Code does not apply to the offense at hand because the offense is located in the civil statutes and not in the Penal Code. V.T.C.A., Penal Code Sec. 1.03(b) is contrary to the State’s position, and provides:

“The provisions of Titles 1, 2, and 3 of this code apply to offenses defined by other laws, unless the statute defining the offense provides otherwise; . . . ”

In Bocanegra v. State, Tex.Cr.App., 552 S.W.2d 130, a conviction for welfare fraud under Article 695c, Section 34, V.A.C.S., was set aside because the information failed to allege a culpable mental state. Section 34(1) and (2) of the statute defining the offense were found not to prescribe culpable mental states, but it was held that one was nevertheless required by Secs. 6.02(b) and 1.03(b), supra, because the statute did not plainly dispense with any mental element.

In Broyles v. State, Tex.Cr.App., 552 S.W.2d 144, it was held that Sec. 6.02, supra, applied to the offense defined in Article 9012, Sec. 2(2), V.A.C.S., by virtue of See. 1.03(b), supra.

We hold that the Sec. 6.02 requirement of a culpable mental state applies to the offense of failing to stop and render aid as defined in the above quoted civil statute.

We must now decide what culpable mental state is required.

Sec. 6.02(c), supra, provides:
“If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b) of this section, intent, knowledge, or recklessness suffices to establish criminal responsibility.”

Despite this statutory language, it has been stated that even though burglary under V.T.C.A., Penal Code Sec. 30.02(a)(3) does not expressly require a culpable mental state, under Sec. 6.02(b) and (c), supra, a culpable mental state of intentionally or knowingly, and not recklessly, is required. Day v. State, 532 S.W.2d 302, 305, n. 1, and accompanying text. Early eases under the first statute creating an offense of failing to stop and render aid indicate that this offense, like burglary under Sec. 30.02(a)(3), supra, requires knowledge rather than recklessness.

At the time of Scott v. State, 90 Tex.Cr.R. 100, 233 S.W. 1097, the statute on failure to stop and render aid provided in part:

“Whenever an automobile strikes any person, the driver of, and all persons in control of such automobile, shall stop, and render to the person struck all necessary assistance, including the carrying of such person to a physician or surgeon for medical or surgical treatment, if such treatment be required, or if such carrying is requested by the person struck.”

At that time the requirement of knowledge that a collision occurred was regarded as a defensive matter that was not essential to the indictment. The Court in Scott said:

“Appellant complains that the indictment is defective in not alleging that the accused ‘knowingly’ struck the party injured, or that, ‘knowing’ he had struck him, he failed to stop and render aid. We cannot agree to this contention. The word ‘knowingly’ or ‘knowing’ does not appear in the description of the act denounced as an offense, and it is not necessary for the state to so allege. If it becomes an issue on the trial, lack of knowledge on the part of a defendant that he had injured some one would excuse him and be a defense to a prosecution under the article in question.”

Although the Court at that time held that an indictment for failure to stop and render aid did not have to allege that the defendant knew a collision had occurred, it did recognize that such knowledge must be proven by the State beyond a reasonable doubt and the jury must be charged on the matter, if evidence raised the issue. Stalling v. State, 90 Tex.Cr.R. 310, 234 S.W. 914; Goforth v. State, 92 Tex.Cr.R. 200, 241 S.W. 1027; Blakeley v. State, 127 Tex.Cr.R. 339, 77 S.W.2d 688. In Goforth v. State, supra, the Court wrote:

“The nature of the statute upon which the conviction rests is such that absence of knowledge on the part of the driver that his ear struck some person or vehicle would entitle him to an acquittal.”

Although today’s statute on failure to stop and render aid is not the same as the one in effect at the time of these earlier cases, the essential point that the accused must know an accident has occurred before the duty to stop and render aid arises, and before he may be held culpable for failure to stop and render aid, is as sound today as then. A construction of Article 670Id, Secs. 39 and 40, supra, that imposes strict liability upon the driver who had no knowledge that an accident had occurred would be unreasonable, and we find such a construction untenable.

These early cases, however, also characterized the issue of lack of knowledge as a defensive matter and accorded it the procedural consequences that under the present code attach to a defense under V.T.C.A., Penal Code Sec. 2.03. That is to say, the Court in prior cases held that such knowledge need not be alleged in the indictment, but if lack of knowledge were raised by the evidence, the jury must be charged to acquit if there were a reasonable doubt on the matter. Scott, Stalling, Goforth, Blakeley, supra.

Under the new penal code, in contrast, the culpable mental state is expressly made, not a defense, but an element of the offense, V.T.C.A., Penal Code Sec. 1.07(a)(13)(B), and this is so even where the culpable mental state is not expressly stated in the statutory definition of the offense. Sec. 6.02(b), supra. In numerous eases this Court has so held, and has set aside indictments as fundamentally defective for failure to allege a culpable mental state even though the definition of the offense did not prescribe a culpable mental state. Tew v. State, Tex.Cr.App., 551 S.W.2d 375 (possession of firearm by a felon, V.T.C.A., Penal Code Sec. 46.05); Ex parte Winton, Tex.Cr.App., 549 S.W.2d 751 (burglary under V.T.C.A., Penal Code See. 30.02(a)(3)); Zachery v. State, Tex.Cr.App., 552 S.W.2d 136 (attempted rape). See also, West v. State, Tex.Cr.App., 567 S.W.2d 515; Braxton v. State, Tex.Cr.App., 528 S.W.2d 844. And this rule has also been applied to offenses not defined in the penal code and not expressly prescribing a culpable mental state even though the offense pre-dated the new requirements of the penal code. Bocanegra v. State, supra.

We hold that pursuant to Sec. 1.03(b), supra, the requirements of Sec. 6.02, supra, apply to Art. 6701d, Secs. 38 and 40, supra, and that the culpable mental state thereby required for the offense of failing to stop and render aid is that the accused had knowledge of the circumstances surrounding his conduct (V.T.C.A., Penal Code Sec. 6.03(b)), i. e., had knowledge that an accident had occurred. We further hold that under Sec. 1.07(a)(13), supra, such knowledge is an element of the offense, and therefore must be alleged in the indictment. “For offenses that require a culpable mental state, it is an element of the offense and must be alleged in the indictment. V.T.C.A., Penal Code Sec. 1.07(a)(13); Ex parte Garcia, Tex.Cr.App., 544 S.W.2d 432; Tew v. State, Tex.Cr.App., 551 S.W.2d 375; Zachery, Winton, supra.” West v. State, Tex.Cr.App., 567 S.W.2d 515. Finally, we hold that the indictment in this case did not allege that culpable mental state. Although it does allege that appellant did intentionally and knowingly drive and operate his automobile, as pointed out by appellant, it is not an offense to drive a car, and the indictment utterly fails to allege appellant knew that the accident had occurred. It therefore fails to allege the culpable mental state of the offense.

The judgment is reversed and the prosecution is ordered dismissed.


author: DOUGLAS, Judge.

text:
    Billy J. McMAHON and Bobby F. McCormick, Appellants, v. The STATE of Texas, Appellee.
    No. 58240.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 22, 1978.
    Rehearing En Banc Denied Jan. 10, 1979.

      Lawrence R. Scroggins, D. Jennings Bryant, Jr., and Barry Barton Kieval, Houston, for appellants.
    William S. Warren, Dist. Atty., Center, for the State.
   OPINION

DOUGLAS, Judge.

Following a change of venue from Shelby County, appellants McMahon and McCormick were convicted in a joint trial for the offense of capital murder. Each appellant was assessed the death penalty.

The State alleged and proved that appellants murdered Earl Hammond for remuneration. See V.T.C.A., Penal Code, Section 19.03. The sufficiency of the evidence to support the convictions is not challenged.

The deceased’s wife, Becky Hammond, and her lover, Tony Bohannon, hired appellants to execute the deceased. Bohannon first offered to employ appellant McMahon in this regard in May, 1976, when they met in a store in Center. McMahon rejected this offer and returned to his home in Houston. McMahon subsequently discussed the matter with appellant McCormick who agreed to assist him in the event an agreement with Bohannon could be reached.

Thereafter, McMahon went to Center on several occasions and discussed the murder contract with Bohannon. On one of those occasions McMahon told Bohannon that he would commit the murder for twenty-five thousand dollars. Bohannon responded that he would have to discuss the terms with another party (Becky Hammond) and then contact him again. No agreement was made at that time.

McMahon met Bohannon again in mid-June of 1976 whereupon the agreement was finally consummated. McMahon told Bo-hannon that he and another person would commit the murder in exchange for ten thousand dollars or more. Several days later Bohannon talked to McMahon and instructed him to kill the deceased on June 19, 1976. Appellants left Houston on that date and drove to Center. McMahon took a .32 caliber revolver with him.

When they arrived in Center, Bohannon gave the gunmen further instructions and money for the purchase of a .12 gauge shotgun. They bought such a gun in Center. McMahon gave the clerk his operator’s license “for identification” and she made a photograph of it. McMahon asked for buckshot. When he was told that they had none, he stated that he wanted shot that would kill. That evening appellants hid in the woods behind the deceased’s house. When the deceased returned home from work appellants executed him.

The death was caused by multiple pistol and shotgun wounds. An autopsy revealed no evidence of a struggle on the part of the deceased.

After the offense was committed, appellants met Bohannon at a predetermined location. He gave them between ten and fifteen thousand dollars in cash. This money belonged to the owners of a store where the deceased was manager and where Becky Hammond and Bohannon worked. Instead of making the deposit of the cash, it was delivered to the killers. Appellants returned to Houston the same night and fled to Mississippi the next day. They eventually went to Mobile, Alabama, where they surrendered to officers of the local police department.

Becky Hammond and Tony Bohannon testified about their roles in the offense. Both of them had been convicted for the murder and were serving their time.

A half-brother of Billy McMahon testified that Bobby McCormick and Billy McMahon came to his house in Mobile, Alabama and gave him some $1400 and a .12 gauge shotgun and told him that they had killed a “dude” with it.

Appellants waived extradition on August 9, 1976, and were returned to this State on August 11. McCormick gave a written confession to investigating officers on August 16 while he was in custody in Center. McMahon gave a written confession to officers the next day.

McCormick’s first contention is that the trial court erred in ruling that his confession was voluntary and in admitting into evidence the fruits thereof. The question of the voluntariness and admissibility of the written statement, however, is not before us because it was not introduced into evidence. Ex parte Parker, 485 S.W.2d 585 (Tex.Cr.App.1972). See also Perbetsky v. State, 429 S.W.2d 471 (Tex.Cr.App.1968).

Further, McCormick does not specify what, if any, evidence was obtained as the result of the confession. The record discloses no objections by him on this basis to the evidence introduced. Moreover, McMahon’s confession related the events surrounding the crime in a very detailed fashion. Assuming that McCormick’s confession was obtained in violation of his constitutional rights, it is apparent that the relevant evidence would have been obtained by means sufficiently distinguishable from the underlying illegality to be purged of the primary taint. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Santiago v. State, 444 S.W.2d 758 (Tex.Cr.App.1969).

McMahon contends that the trial court erred in ruling that his written confession was voluntary and admissible. He argues that the confession was the product of compulsion and inducement.

In compliance with the requirements of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and Article 38.22, V.A.C.C.P., the court held a hearing outside the presence of the jury to determine whether the confession was voluntary. Evidence introduced at the hearing showed that appellants were transported from Alabama to Center immediately after they were taken into custody on August 11,1976, by three Center police officers and a Texas Ranger. McMahon was questioned during the trip by Jimmy Matthews, a policeman of Center, but he made no incriminating statements at that time and there is no indication that this questioning affected his confession which was made six days later. Compare Farr v. State, 519 S.W.2d 876 (Tex.Cr.App.1975).

McMahon testified at the hearing that when appellants and the officers arrived in Center he was taken before a justice of the peace and warned in accordance with Article 15.17, V.A.C.C.P. McMahon stated that he was interviewed on August 17 by Officer Matthews and Ranger Maurice Cook. According to McMahon, the officers told him that McCormick had confessed and that their intention was to give McMahon an opportunity to avoid the electric chair. He also testified that, before this, his father told him that he understood that McCormick had confessed. McMahon told them that he would not make a statement unless his attorney was present. McMahon testified that the officers produced McCormick’s written statement and began reading from it. McMahon then gave a written statement to the officers.

On cross-examination, McMahon testified that he had stopped attending school in the tenth grade but that he had developed fair reading and writing skills. He further testified that he was not mistreated by any of the officers before he gave the confession.

Both Officer Matthews and Ranger Cook testified. Ranger Cook testified that he read McMahon his Miranda warning, had him execute a written waiver of his rights and finally obtained a signed statement. While Ranger Cook was examined extensively by both the prosecution and defense concerning McCormick’s confession, he gave no further testimony concerning McMahon. Matthews testified that he made no promise to McMahon that the giving of the confession would keep him from getting the electric chair. Ranger Cook testified that he was with McMahon during the questioning except for a period of some five minutes and that Matthews made no promise to him.

The confession itself recites that Matthews and Ranger Cook were the officers that took the confession. Matthews also warned McMahon of his rights. The statement at the top of the first page recites that no promises were made to the appellant. Cook testified that he did read parts of McCormick’s confession to McMahon before McMahon made his statement, but only because McMahon had already been told by his father that McCormick had confessed. Cook further testified that McMahon asked to see McCormick’s confession and that when the officers refused McMahon asked them to read part of it to him. Cook denied that either he or Officer Matthews ever promised McMahon that he could avoid the death penalty by making the confession.

A confession based upon an inducement, such as a promise that the State would not seek the death penalty, would be inadmissible. Sherman v. State, 532 S.W.2d 634 (Tex.Cr.App.1976). Relying upon Farr v. State, 519 S.W.2d 876 (Tex.Cr.App.1975), appellant urges that since Matthews and Cook did not controvert McMahon’s testimony at the suppression hearing the confession is inadmissible as a matter of law. When the State fails to controvert evidence of coercion, and there is no showing that the individuals who could controvert such statements are unavailable, we have long held that the confession is inadmissible as a matter of law. Farr v. State, supra; Prince v. State, 155 Tex.Cr.R. 108, 231 S.W.2d 419 (1950).

However, in the instant case, we cannot agree that the evidence was uncon-tradicted. The confession did contain a statement that McMahon had not been promised anything in return for making the confession. McMahon himself had testified that this portion of the confession had been read aloud to him. The statement in the confession and the testimony of Cook constituted evidence of the lack of any such promise. Matthews controverted McMahon’s testimony during the trial.

The trial court is the sole judge of the weight and credibility of the evidence. Aranda v. State, 506 S.W.2d 221 (Tex.Cr.App.1974); Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977). He was able to observe the demeanor of McMahon as he testified. He had before him all of the circumstances concerning the confession. He chose to disbelieve McMahon. We conclude that the judge did not abuse his discretion in ruling that the confession was admissible.

McMahon also argues that his confession was obtained by the use of McCormick’s confession and is therefore the fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Assuming, without deciding, that the McCormick confession was illegally obtained, McMahon has no standing to attack that confession. See Hull v. State, 510 S.W.2d 358 (Tex.Cr.App.1974); People v. Varnum, 66 Cal.2d 808, 59 Cal.Rptr. 108, 427 P.2d 772 (1967), cert. denied 390 U.S. 529, 88 S.Ct. 1208, 20 L.Ed.2d 86 (1968).

Appellants next complain of the admission into evidence of a copy of a deposit slip reflecting a deposit in the amount of $13,000.00. The slip was prepared by Becky Hammond on the day of the offense and introduced by the State as proof of the remuneration received by the appellants for the murder of Earl Hammond.

Judy Fitzgerald testified that she was the bookkeeper for Due’s Minimax and the present custodian of the store’s financial records, including those records and deposit slips which were received from the store’s previous management. Appellants contend. that because the deposit slip in question was executed prior to Mrs. Fitzgerald’s employment as bookkeeper, and because she therefore could not be certain when the copy had been made, a proper predicate was not laid for its introduction under Article 3737e, V.A.C.S.

Becky Hammond testified that on the night of her husband’s murder she was the bookkeeper for Due’s Minimax and that she regularly prepared deposit slips for the store. She further stated that she and Tony Bohannon determined that they would pay appellants for the murder of the deceased by using money from the store that should have been deposited and that on the night of the offense she prepared the deposit slip. Bohannon testified that he took the money after telling the deceased that it would be deposited and delivered the cash to the killers after the murder.

Assuming arguendo that the trial court erred in admitting the deposit slip into evidence, such error was waived or rendered harmless. The improper admission of evidence does not constitute reversible error if the same facts are shown by other evidence which is unchallenged. Hughes v. State, 562 S.W.2d 857 (Tex.Cr.App.1978); Watson v. State, 532 S.W.2d 619 (Tex.Cr.App.1976).

Appellants next contend that the prosecution improperly commented upon their failure to testify. Specifically, they complain of the following remarks by John Walker, a prosecutor, at the punishment phase of the trial:

“Have you seen any remorse? Have you seen any remorse on the part of the defendants?

“MR. BRYANT: I object to that, Your Honor. That is a comment on the Defendants failure to testify in this case, and at this time I would ask immediately for a mistrial.
“THE COURT: Denied.
“MR. BRYANT: Note our exception.
“THE COURT: Exception noted.
“MR. WALKER: Have you heard any evidence of redeeming value, true evidence of redeeming value of these defendants? Have you any such evidence? Have you heard of it? It doesn’t exist in this case. You haven’t heard it.”

No objection was made to the prosecutor’s last remarks. Error, if any, relating to that part of the argument was waived by appellants’ failure to timely object. Collins v. State, 548 S.W.2d 368 (Tex.Cr.App.1976).

In reviewing the prosecutor’s argument as a whole, moreover, we do not agree that it constituted an improper comment on the appellants’ failure to testify. In Nowlin v. State, 507 S.W.2d 534 (Tex.Cr.App.1974), this Court stated that before a prosecutor’s argument may be so construed the language used must be viewed from the jury’s standpoint and the implication that the language refers to the defendant’s failure to testify must be a necessary one. It is not sufficient that the language might be construed as an implied or indirect allusion. Turner v. State, 504 S.W.2d 843 (Tex.Cr.App.1974); Armstrong v. State, 502 S.W.2d 731 (Tex.Cr.App.1973). If the prosecutor’s remarks may be reasonably construed as referring to the defendant’s failure to present evidence through a witness other than himself, reversal is not required. Brown v. State, 475 S.W.2d 761 (Tex.Cr.App.1971); Alvear v. State, 170 Tex.Cr.R. 378, 341 S.W.2d 426 (1960).

In this case, the district attorney’s remarks were not addressed to the jury at the guilt phase, but rather at the punishment phase. In this connection, appellants were not the only individuals in a position to testify to the presence or absence of remorseful feelings on their part. Twenty-one reputation or character witnesses were called by the defense. They testified that appellants probably would not commit acts of violence in the future.

In Tarpley v. State, 565 S.W.2d 525 (Tex.Cr.App.1978), the prosecutor stated (referring to the defendant):

“He’s shown no reason to me, and I don’t think he’s shown you any reason why he shouldn’t be put away — ”

We held no reversible error in that argument. We conclude that the prosecutor’s argument in the present case could reasonably have been construed not to be a reference to the appellants’ failure to testify but to their failure to show through other witnesses any remorse for their role in the commission of the murder.

Appellants contend that the evidence is insufficient to support the jury’s finding that they would probably constitute a continuing threat to society. See Article 37.-071(b)(2), V.A.C.C.P. Each reputation witness testified, in essence, that appellants’ reputations for being peaceful, law-abiding citizens were good, and that probably neither appellant would commit future acts of violence. Because the State presented no evidence at the punishment phase, appellants argue that we should hold that the evidence supporting the second special issue is insufficient as a matter of law.

It is now well established that evidence presented at the guilt phase of the trial may be considered by the jury in the process of resolving the three special issues submitted at the punishment phase. Brock v. State, 556 S.W.2d 309 (Tex.Cr.App.1977); Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977); Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976); and Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976). Evidence presented at the guilt phase in the present case shows that appellants’ greed motivated them to kill and that they executed the deceased with cruel calculation. McMahon’s confession reveals that appellants contemplated at least one more murder for hire:

“ . . Tony [Bohannon] told me, after I asked him if this was going to be the only one (killing) provided things worked out and Tony said it would be about three months and he might have another one that that [sic] would pay about fifty thousand dollars. I told Tony to call me and Bobby and I would do it.

Evelyn Barton identified appellants as the parties who had purchased a Remington Model 870 .12 gauge shotgun at her place of employment on the date of the offense. Appellants asked for buckshot ammunition. Barbara Livingston and David Adams recalled that when Barton told McMahon that she had no such ammunition in stock McMahon’s response was, “Well, give me something that will kill.”

Joe Hooker, a physician, testified that he went to the scene of the crime and examined the deceased’s body and then assisted with the autopsy. Hooker stated that during his entire medical career he had never observed a human body so thoroughly destroyed by reason of gunshot wounds. Ed Roberts was one of the investigating officers. He testified that, although he had been acquainted with the deceased, the body he observed was only identifiable by the name tag on the shirt.

Furthermore, there was no evidence of mitigating circumstances presented to the jury. See Hovila v. State, 562 S.W.2d 243 (Tex.Cr.App.1978); Robinson v. State, 548 S.W.2d 63 (Tex.Cr.App.1977). Cf. Warren v. State, 562 S.W.2d 474 (Tex.Cr.App.1978). Accordingly, we hold that the evidence is sufficient to support the jury’s determination that appellants would probably constitute a continuing threat to society. See Brock v. State, supra; Burns v. State, supra.

Appellants insist that the court erred in failing to declare a mistrial on its own motion after being notified of the attempted bribery of a juror.

The record reflects that on the evening of December 30, 1976, Charles Brazzil was at the home of his son-in-law, Juror Jim Ishmael. While at the Ishmael home, Brazzil received a telephone call from an anonymous individual who offered to pay Ishmael five hundred dollars to “hang the jury.” Brazzil communicated this to his son-in-law and to the trial judge.

Appellants correctly argue that the rule against jurors conversing with unauthorized persons about a case is so strong that injury to the accused is presumed. Williams v. State, 463 S.W.2d 436 (Tex.Cr.App.1971); Cole v. State, 157 Tex.Cr.R. 469, 250 S.W.2d 201 (1952). As the State points out, however, this presumption is rebut-table. Before a new trial will be warranted, there must be injury to the accused. Thus, if it is shown that the case was not discussed, or that nothing prejudicial to the accused was said, then the verdict will be upheld. Williams v. State, supra; Cole v. State, supra.

In the present case, the bribe attempt was immediately reported to the court and an evidentiary hearing was held on the matter. Testimony adduced at the hearing revealed that no bribe was accepted, that nothing occurred between juror Ishmael and the anonymous caller, and that Ishmael discussed the case with no one. Since all the facts were fully before the court and no prejudice to appellants was demonstrated, the State discharged its burden of showing that the declaration of a mistrial was unnecessary. No objection was made. Trial judges should seldom declare mistrials on their own motions because in many cases jeopardy will attach. The judge did not err in failing to grant a mistrial on his own motion.

Appellants’ next contention is that the admission into evidence of a money bag was error. This contention is premised on the argument that the bag was a fruit of the confessions.

No objection to the money bag was raised at trial. Thus, any error was waived. Lejeune v. State, 538 S.W.2d 775 (Tex.Cr.App. 1976); Phillips v. State, 511 S.W.2d 22 (Tex.Cr.App.1974).

McCormick contends the court erred in admitting McMahon’s confession. He argues that since this confession implicates him along with McMahon and since he was unable to cross-examine McMahon, his right to confront the witnesses against him was abridged.

Introduction, at a joint trial, of a non-testifying codefendant’s confession which implicates the other defendant, violates the defendant’s confrontation clause rights. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Evans v. State, 534 S.W.2d 707 (Tex.Cr.App.1976). This error can be avoided by either granting each defendant a separate trial or, if possible, editing the confession so that it does not implicate the other defendant. Ex parte Smith, 513 S.W.2d 839 (Tex.Cr.App.1974); Carey v. State, 455 S.W.2d 217 (Tex.Cr.App.1970). Also, the harmless error doctrine is applicable to confrontation clause rights. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Carey v. State, supra.

In the instant case, references to McCormick could not be excised from the confession without the jury realizing that the excised portions referred to McCormick. Therefore, the only way to protect McCormick’s rights, while allowing the State to use the confession against McMahon, would be to have separate trials. The State sought such a severance. Appellants, represented by the same counsel, opposed the severance. The trial court refused to sever the cases.

In Carey v. State, supra, we cited appellant’s failure to request a severance as one ground for holding the Bruton error harmless. Similarly, in Moore v. State, 504 S.W.2d 904, 905, n. 1 (Tex.Cr.App.1974), we considered the Bruton question as unassigned error and again concluded that the failure to request a severance was one factor in determining that the error was harmless.

The case at bar squarely presents the question of whether opposition to the State’s request for a severance waives a denial of confrontation clause rights. The cases previously discussed indicate that the confrontation clause rights are such that a violation may be harmless error and failure to seek a severance is a factor to consider in determining harmless error. We see no reason why such rights cannot also be waived by trial strategy. The only feasible method to protect McCormick’s confrontation clause rights was to try appellants separately. The State sought such a severance; the defense successfully opposed it. We hold that under these facts McCormick waived his right to confront McMahon with respect to the confession.

There being no reversible error, the judgments are affirmed.

ODOM and PHILLIPS, JJ., concur in the result.

ROBERTS, J., dissents.