author: DALLY, Commissioner. ONION, Presiding Judge

text:
    William Lee BAILEY, Appellant, v. The STATE of Texas, Appellee.
    No. 50233.
    Court of Criminal Appeals of Texas.
    Jan. 21, 1976.

      James E. Davis, on appeal only, Texar-kana, for appellant.
    Lynn Cooksey, Dist. Atty., Texarkana, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of robbery by firearms; the punishment assessed by the jury is imprisonment for 25 years.

A judgment was reversed in an earlier appeal from a conviction for the same offense because the punishment assessed was not authorized by law. See Bailey v. State, 501 S.W.2d 633 (Tex.Cr.App.1973). The appellant was again tried for this offense; a mistrial was declared on April 25, 1974, because the jury could not reach a verdict. In this appeal from the judgment after the third trial the appellant urges several grounds of error, but it is only necessary for us to consider one of them. In that ground the appellant complains of the prosecutor’s jury argument.

Our disposition of this appeal is controlled by the recent case of Reynolds v. State, 505 S.W.2d 265 (Tex.Cr.App.1974). There we held that when defense counsel’s argument is not objectionable the State may not in reply go outside the record and argue facts not in evidence. During his argument at the guilt-innocence phase of the trial the prosecutor argued as follows:

“MR. HALL: ....
“Now, Mr. Davis says, ‘Well, where is Earnest Minnifield’? I just want to tell you where he is. I’m happy to tell you where he is. He’s in the Texas Penitentiary.
“MR. DAVIS: I object, Your Honor. That’s improper jury argument.
“THE COURT: I specifically recall your asking that question before this Jury. Overruled.
“MR. HALL: I’m just more than happy to tell you where he is. And, I’m — he said, ‘Well, why wouldn’t Minnifield testify? Why wouldn’t he?’ Well, I’m here to tell you that Minniefield had an opportunity and he refused to testify against Bailey. Minniefield has been convicted of this armed robbery just like Bailey should be.
“MR. DAVIS: I object, Your Honor, to him telling the Jury the disposition of Mr. Minniefield’s case.
“THE COURT: Overruled.”

The State strenuously urges that the prosecutor’s argument was in reply to the following argument made by defense counsel:

“Now, the State has made mention— and, I certainly agree — that what I say is not evidence. What Mr. Hall will say in a few minutes is not evidence; what Mr. Dowd has said is not evidence. The evidence comes from the witness stand, and naturally, if you’re going to have an armed robbery, no one sells tickets to an armed robbery. But, where is Earnest Minniefield? Why didn’t The State put him on the stand and let him tell who was in the store? Surely, he knows. You have a right to assume that his testimony wouldn’t be what The State of Texas wanted you to hear, or they would have put him there and had him testify as well.”

The defense counsel’s argument was not objectionable. There is no evidence in the record that Minniefield had been convicted and was serving a sentence in prison for this armed robbery. This unsworn testimony of the prosecutor injected new facts into the case and was manifestly harmful to the appellant. See Vargas v. State, 442 S.W.2d 686 (Tex.Cr.App.1969); Barton v. State, 172 Tex.Cr.R. 600, 361 S.W.2d 716 (1962); cf. Thomas v. State, 519 S.W.2d 430 (Tex.Cr.App.1975); Smith v. State, 506 S.W.2d 602 (Tex.Cr.App.1974); Garrison v. State, 528 S.W.2d 837 (Tex.Cr.App., decided Oct. 15, 1975).

The State contends Meadowes v. State, 368 S.W.2d 203 (Tex.Cr.App.1963), supports its position that the argument was invited. Meadowes, however, is distinguishable in that there counsel for the defendant was the first to go outside the record; the prosecutor responded by going outside the record. Defendant’s counsel argued as follows:

“We haven’t heard from Mr. Frost on this thing. We certainly couldn’t use him, couldn’t try. I think the State could have very handily if they had wanted to, but we didn’t get to hear from him.” (emphasis ours.)

Frost accompanied the defendant when he sold dangerous drugs to two undercover agents. The emphasized portion of the argument was an unmistakable reference to Art. 711, V.A.C.C.P. (1925), which provided that co-indictees were not competent witnesses for each other. Defendant’s argument necessarily implied that Frost had been charged in connection with the same offense and was therefore outside the record. The prosecutor accepted the invitation by going outside the record to inform the jury that Frost was “doing two years in jail.” In the case at bar the appellant’s argument was permissible; the only objectionable argument was made by the prosecutor.

It would have been appropriate for the prosecutor to argue that Earnest Minnie-field was equally available as a witness for the defense as he was for the prosecutor. Easley v. State, 454 S.W.2d 758 (Tex.Cr.App.1970); Luna v. State, 461 S.W.2d 600 (Tex.Cr.App.1971).

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

ONION, Presiding Judge

(concurring).

While I agree the instant case must once again be reversed, I cannot agree for the reason stated by the majority. The prosecutor perhaps should not have told the jury the co-defendant Minniefield had been convicted of “this armed robbery,” but I conclude that argument was invited by defense counsel’s earlier argument set forth in the majority opinion. Further, in light of the evidence before the jury of Minniefield’s participation in the robbery and the rule that the State may respond to invited argument, the error, if any, was harmless.

I would reverse, however, for another reason. Frank Horton testified for the State that the appellant and Minniefield had urged him to participate with them in the instant robbery, but because of his size, over three hundred pounds, and easy identification and because he was scared, he left the car in which the other two were riding and did not participate in the robbery. His testimony was most damaging to the appellant. At the conclusion of the State’s case in chief the defense offered a stipulation, agreed to by the State, that the indictment against Horton for robbery in the instant case had been dismissed. The court instructed the jury that Horton was an accomplice witness as a matter of law and that a conviction could not be had upon his testimony unless the jury first believed the testimony to be true and further it had to be corroborated, etc. Subsequently, the defense counsel mentioned that Horton’s testimony by itself was “not sufficient by law” and that it came from a “successful accomplice” witness “in that he shifted the blame to somebody else and got the case against him dismissed.”

In his closing argument at the guilt stage of the trial the prosecutor argued that Horton was telling the truth and, in response to the stipulation as to the dismissal order and counsel’s argument, stated: “Well, in that connection, before a criminal case can be dismissed, The State must file a Motion and present evidence into Court to dismiss it, and the Court must sign the order, and the Court will not dismiss the case unless he is convinced that the man is innocent. That’s why it was dismissed against Frank Horton. . ” The objection that there was no finding of innocence by the dismissal order was overruled.

Article 32.02, Vernon’s Ann.C.C.P., provides:

“The attorney representing the State may, by permission of the court, dismiss a criminal action at any time upon filing a written statement with the papers in the case setting out his reasons for such dismissal, which shall be incorporated in the judgment of dismissal. No case shall be dismissed without the consent of the presiding judge.”

It is clear that a judge cannot dismiss an indictment under Article 32.02, supra, until a State’s motion to dismiss is presented to him, Flores v. State, 487 S.W.2d 122 (Tex.Cr.App.1972), but it is also clear that a case cannot be dismissed until the presiding judge consents to such order.

It does not follow, however, that when the court consents to a dismissal order for whatever reasons stated in the State’s motion to dismiss the court is finding the accused is innocent of the crime charged as argued by the prosecutor, and there is no showing in the evidence that the dismissal revealed such a finding by the district judge who entered the order.

The unsworn testimony of the prosecutor that Horton had been found innocent by another district judge injected new facts into the case and was manifestly harmful to the appellant, especially in light of the trial court’s instruction that Horton’s testimony was to be considered as that of an accomplice and the issue of the complaining witness’ identification of the appellant raised before the jury.

I concur in the reversal.

DOUGLAS, J., joins in this concurrence.

      . Held to be unconstitutional in Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).

      . Adams v. State, 531 S.W.2d 626 (Tex.Cr.App., delivered Jan. 14, 1976); Walker v. State, 530 S.W.2d 572 (Tex.Cr.App., delivered Dec. 17, 1975).

      . The complaining witness did identify the appellant as one of the two robbers, but he admitted that he had attended a lineup and had been unable to identify the appellant, that a police officer told him one of the robbers was in the lineup and actually pointed out the appellant to the complaining witness, but he was still unable to identify him until he later saw the appellant sitting on a bench in the courthouse.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    Jesse David WASHINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 51262.
    Court of Criminal Appeals of Texas.
    Jan. 14, 1976.
    Douglas Parks, Dallas, for appellant.
    Henry Wade, Dist. Atty., Donald H. Fla-nary, Jr., Dale Markland and Jim Burnham, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appellant was convicted by a jury of the offense of burglary of a habitation. Punishment was assessed by the court at fifteen years.

Appellant’s court-appointed counsel has filed a brief in which he has concluded that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. One contention is advanced which counsel says might arguably support the appeal. See Gainous v. State, Tex.Cr.App., 436 S.W.2d 137; Jackson v. State, Tex.Cr.App., 485 S.W.2d 553; Currie v. State, Tex.Cr.App., 516 S.W.2d 684. A copy of counsel’s brief and the appellate record have been delivered to appellant and appellant has been advised of his right to file a pro se brief. No pro se brief has been filed.

The record reflects that appellant waived indictment and elected to be prosecuted by information pursuant to Art. 1.141, Vernon’s Ann.C.C.P. Counsel’s contention is that the complaint, which was filed with the information, was unsigned, therefore rendering the information based on an invalid complaint. In Chappie v. State, Tex.Cr.App., 521 S.W.2d 280, this Court held that when an accused waives the right to be tried upon an indictment in a non-capital felony case and elects to be tried upon an information, no complaint is required. No error is shown.

We have carefully reviewed the record and counsel’s brief and agree that the appeal is wholly frivolous and without merit.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Frank BRAY aka Frank Bray, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 50768.
    Court of Criminal Appeals of Texas.
    Jan. 21, 1976.
    Joseph J. Skrivanek, III, Caldwell, for appellant.
    W. T. McDonald, Jr., Dist. Atty., J. Bradley Smith, Asst. Dist. Atty., Bryan, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for the offense of burglary of a habitation with intent to commit rape. The jury found the paragraphs in the indictment charging appellant with having been previously convicted of two felony offenses to be true and punishment was assessed at life.

The indictment alleged the primary offense occurred on or about August 2, 1974, and the record reflects that trial was in January, 1975.

Appellant contends the court “erred in overruling appellant’s objections to introduction of evidence pertaining to an alleged prior conviction from Brazos County, Texas, where there was no evidence that appellant was represented by counsel at the hearing for revocation of probation and sentencing.”

The indictment alleged in pertinent part that “prior to the commission of each of the aforesaid offenses by the said Frank Bray, Jr. to wit: on the 15th day of February, A.D.1949, in the 85th District Court of Brazos County, Texas, in Cause Number 8785 on the docket of said Court, the said Frank Bray, Jr. . was duly and legally convicted in said last named Court for a felony, to wit: burglary . . . .”

The court admitted into evidence over appellant’s objection penitentiary papers containing a judgment reflecting that appellant was convicted of the offense of burglary on April 24,1948 in Brazos County in Cause No. 8785 and was assessed a five year probated sentence, an order revoking such probation bearing the date of February 15, 1949, and a sentence in said cause dated February 16, 1949.

Appellant testified that he was not represented by counsel at the time his probation was revoked and that he was unable to hire counsel.

The order revoking probation on February 15,1949 does not reflect that appellant was represented by counsel, such order reciting “ . . . the said Defendant is now charged with burglary in this Court, and has signed a written confession admitting his guilt, which confession has been this day presented to me in open Court, and for this reason it clearly appears that the Defendant has violated the conditions of the parole given him.” The docket sheet was introduced into evidence and it reflects that counsel was appointed to represent appellant on April 20,1948, four days prior to the trial of the primary offense, but the docket sheet is silent as to appellant’s representation by counsel at the revocation hearing. The sentence is also silent as to appellant’s representation by counsel.

Appellant has the burden to show that he was without counsel and that he was indigent and did not voluntarily waive his right to counsel. Boss v. State, Tex.Cr.App., 489 S.W.2d 580; Taylor v. State, Tex.Cr.App., 470 S.W.2d 663.

In the instant case, no effort was made to controvert the appellant’s testimony that he was indigent. Ex parte Williams, Tex.Cr.App., 486 S.W.2d 566; Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519. Appellant’s testimony that he was not represented by counsel at the probation revocation hearing is corroborated by the order revoking probation, the sentence and the docket sheet. See Williams v. State, supra. No evidence was offered to refute appellant’s claim of lack of counsel. Waiver of counsel cannot be presumed from a silent record. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319.

The undisputed evidence supports appellant’s contention that he was indigent, had not been represented by counsel at the revocation hearing and sentencing and had not waived counsel. Thus, the Brazos County conviction was invalid and could not be used for enhancement of punishment. Ex parte Shivers, Tex.Cr.App., 501 S.W.2d 898; Ex parte Allen, Tex.Cr.App., 452 S.W.2d 472; Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968); Stiltner v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968).

In a ground of error challenging the other prior conviction used for enhancement, appellant contends that the court erred in overruling his objection to “introduction of evidence pertaining to an alleged prior conviction from Falls County, Texas, when the indictment in the instant case contained a fatal variance.”

The indictment alleges that appellant was previously convicted of a felony in Falls County on June 25,1956, in Cause No. 3524. The docket sheet, indictment, judgment, and sentence support this allegation, as does appellant’s testimony. The only discrepancy appears in the number of the district court in which this conviction occurred. Under our holdings in Morman v. State, 127 Tex.Cr.R. 264, 75 S.W.2d 886 and Corley v. State, 158 Tex.Cr.R. 207, 254 S.W.2d 394, it would appear this variance is fatal. However, both of these cases involved prior convictions alleged to have occurred in counties with multiple district courts. Under the statutes of this State there is only one district court in Falls County. See Article 199(82), Y.A.C.S.

In Morman, supra, at page 887, we said: “The accused is entitled to a description of the judgment of former conviction that will enable him to find the record and make preparation for a trial of the question whether he is the convict named therein.”

At the punishment phase of the trial, appellant’s counsel introduced a certified copy of the docket sheet of Falls County in Cause No. 3524 and of the waiver of trial by jury in that cause. At that time appellant’s counsel presented objections to Count 2 of the indictment, asking that the Falls County prior conviction be held void and not be considered for punishment. Attached to this motion were copies of the docket sheet, indictment, judgment, sentence, order appointing an attorney, and waiver of jury trial in Cause No. 3524 in the 82nd District Court. Thus it is apparent the error in the district court number did not prevent appellant from finding the record of the prior conviction and presenting a defense thereto.

In Thomas v. State, Tex.Cr.App., 496 S.W.2d 578 and Baity v. State, Tex.Cr.App., 455 S.W.2d 305, we held that clerical error in the sentence did not render the proof of the conviction relied on for enhancement at variance with the allegation in the indictment when the judgment and all other proof supported the allegation in the indictment. In the case at bar, the proof established the nature of the offense, the date of conviction, the cause number and the county as alleged in Count 2 of the indictment. The clerical error in the number of the district court does not render the proof of this prior conviction at variance with the allegations in the indictment.

While the admission of the Falls County conviction does not constitute a basis for reversal, it would be better pleading, in the event of retrial, to reindict in order that the indictment may reflect the correct number of the court in which the prior conviction occurred.

The State suggests that in the event this Court finds one of the prior convictions to be void, the sentence should be reformed so that “the appellant would be ordered to confinement of not less than 15 years . . . .” This position is untenable. Under the provisions of V.T.C.A. Penal Code, Sec. 12.42(d), a life sentence was assessed by the court because the jury found appellant had previously been convicted of two felony offenses. With one valid prior conviction, punishment could have been assessed under V.T.C.A. Penal Code, Sec. 12.-42(c), which provides for a range of punishment of life or a term of years not more than 99 or less than 15. We cannot presume what punishment the jury would have assessed under Sec. 12.42(c), supra.

For the error discussed, the judgment is reversed and the cause remanded.

Opinion approved by the Court.

      . See V.T.C.A. Penal Code, Section 12.42(d).

      . The prior conviction in Corley occurred in Dallas County and in Morman the prior conviction was in Harris County. See Article 199(14) and (11), V.A.C.S.


text:
    Leon Jack SHERBERT, Appellant, v. The STATE of Texas, Appellee.
    No. 50837.
    Court of Criminal Appeals of Texas.
    Jan. 21, 1976.
    Douglas H. Parks, Dallas, for appellant.
    Henry Wade, Dist. Atty., Gary Love, Robert Hinton and Dale Markland, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for rape of a child as denounced by V.T.C.A. Penal Code, Sec. 21.09. Punishment was assessed by the jury at twenty years.

The indictment alleged the offense occurred on or about May 19, 1974 and the record reflects that trial was in November, 1974.

At the outset, appellant contends that “the evidence is insufficient for the reason that the record does not reflect penetration of appellant’s sexual organ into that of the complaining witness.”

V.T.C.A. Penal Code, Sec. 21.01(3) provides:

“ ‘Sexual intercourse’ means any penetration of the female sex organ by the male sex organ.”

The record reflects the eleven-year-old prosecutrix testified:

“A. He [appellant] unzipped his pants and put his thing in my thing.
“Q. His thing? You mean his male sexual organ?
“A. Yes, sir.
“Q. . . . Did Leon Jack Sherbert, this Defendant right here, stick his male sexual organ, as you call his thing, into your thing, your female sexual organ?
“A. Yes, sir.
“Q. And did he push and push and push his male sexual organ against and into your female sexual organ?
“A. Yes, sir.”

Dr. James D. Strong testified that upon examination of prosecutrix he found “some abraded or raw areas on the inner surface into the area around the vagina” and that these abrasions were compatible “with abrasions caused by the friction of a human male sexual organ rubbing against these parts of the labia majora and the labia minora of [prosecutrix].” We cannot agree with appellant’s argument that the testimony of Dr. Strong that the abrasions could have resulted from other causes such as a hand or a finger rendered the evidence insufficient to support the verdict.

The burden of proof upon the State in proving penetration is no greater under V.T.C.A. Penal Code, Sec. 21.01(3) than it was under Art. 1187, V.A.P.C. This Court has held that the requirement of Art. 1187, V.A.P.C. is satisfied by showing any penetration, no matter how slight. Rhynes v. State, Tex.Cr.App., 479 S.W.2d 70; Nilsson v. State, 477 S.W.2d 592; Johnson v. State, Tex.Cr.App., 449 S.W.2d 65. While proof of the slightest penetration is sufficient, this element of the offense must be proved beyond a reasonable doubt. Lynch v. State, 150 Tex.Cr.R. 57, 199 S.W.2d 780; Calhoun v. State, 134 Tex.Cr.R. 423, 115 S.W.2d 965. Penetration between the labia of the female’s private parts by the male sexual organ of the defendant is sufficient although the vagina was not entered or an act of intercourse was never completed. Rhynes v. State, supra.

We find that the evidence was ample to prove the act of penetration and conclude that the evidence was sufficient to support the conviction. Nicholas v. State, Tex.Cr.App., 478 S.W.2d 494; Sanchez v. State, Tex.Cr.App., 479 S.W.2d 933.

Appellant contends the court erred in allowing the prosecutrix to relate the hearsay comments of a third party.

The record reflects the following testimony of prosecutrix which gives rise to appellant’s contention:

“Q. And that night, in the confines of that bathroom, did you confide in Tommie Sue?
“A. Yes, sir.
“Q. And what did you tell her?
“A. I told her that Jack [appellant] had been bothering me.
“Q. And what did she tell you?
“A. She said, ‘I had been expecting that.’ ”

Appellant objected to the statement of the third party as being hearsay and prejudicial and the court overruled the objection.

The same information relative to Tommie Sue telling prosecutrix that she “expected that” after prosecutrix had told her about the events in question was later admitted without objection. Nothing is presented for review. Mutscher v. State, Tex.Cr.App., 514 S.W.2d 905; Amaya v. State, Tex.Cr.App., 473 S.W.2d 476; Vela v. State, Tex.Cr.App., 516 S.W.2d 176.

Appellant contends the court erred in refusing to allow appellant to impeach the prosecutrix by use of the examining trial transcript.

Appellant points to the testimony of pros-ecutrix that appellant had attempted to fondle her on two occasions and complains that the court refused to allow appellant to impeach prosecutrix with examining trial testimony of prosecutrix to the effect that the occasion in question was the first time appellant had attempted to bother her.

The record reflects the following testimony was elicited from prosecutrix by appellant before proffer of the examining trial testimony for impeachment:

“Q. As opposed to any other dates, May the 19th [date of the alleged offense] was the couch date, and he asked you [at the examining trial] if Jack had ever touched you before that couch day and you answered that he hadn’t. Do you remember that?
“A. Yes, sir.”

When a witness admits making the prior inconsistent statement, such statement is not admissible, for under such circumstances the witness has performed the act of impeachment. Wood v. State, Tex.Cr.App., 511 S.W.2d 37; Hoffman v. State, Tex.Cr. App., 514 S.W.2d 248. No error is shown.

The judgment is affirmed.

Opinion approved by the Court.

      . Art. 1187, V.A.P.C. provided:
      “Penetration only is necessary to be proved on a trial for rape.” The Commentary following Sec. 21.01, supra, notes:
      “The definition of ‘sexual intercourse’ contained in Subdivision (3) does not change prior Texas law, but retains, for example, the requirement of penetration, however slight, Penal Code art. 1187; e. g., Flannery v. State, 135 Tex.Cr.R. 235, 117 S.W.2d 1111 (1938).”


text:
    Charlie Perry REESE, Appellant, v. The STATE of Texas, Appellee.
    No. 50874
    Court of Criminal Appeals of Texas.
    Jan. 21, 1976.

      Robert T. Baskett, Court appointed, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky and Norman Kinne, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for aggravated robbery. After the jury returned a verdict of guilty, punishment was assessed by the court at twelve years.

The indictment alleges the offense occurred on or about June 14, 1974, and the record reflects that trial was in October, 1974.

Appellant contends that the indictment under which he was convicted is fatally defective for failure to allege the ownership of property and money appellant was charged with taking during the robbery.

The pertinent portion of the indictment recites that appellant did

“then and there, while in the course of committing theft of one carton cigarettes $6.10, One Hundred Twenty Three Dollars ($123.00) current money of the United States of America, hereinafter called ‘the Property’ from Richard Haywood with intent to obtain and maintain control of the property, and by using and exhibiting a deadly weapon, namely a pistol knowingly and intentionally threaten and place Richard Haywood in fear of imminent bodily injury and death.”

Appellant’s argument that the indictment is fatally defective is bottomed on the failure of the indictment to allege to whom the property and money that were taken in the alleged robbery belonged. Appellant cites Lucero v. State, Tex.Cr.App., 502 S.W.2d 128 and Ward v. State, Tex.Cr.App., 520 S.W.2d 395. The opinions in Lucero and Ward held that the omission of the allegation of ownership of the property taken in the robbery rendered an indictment defective under the statutes defining the offense in the old Penal Code.

The appellant was charged with the offense of aggravated robbery under the new Penal Code, and we find our opinion in Earl v. State, Tex.Cr.App., 514 S.W.2d 273, where an identical indictment was under attack, to be dispositive of appellant’s contention. In Earl, appeal was taken from an aggravated robbery conviction. The pertinent portion of the opinion states:

“It is appellant’s contention that the indictment should have alleged the constituent elements of the theft in the course of which the robbery was committed. In considering the argument we observe that Section 29.01, V.T.C.A. Penal Code, provides in part:
“ ‘ “In the course of committing theft” means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.’
“Thus the actual commission of the offense of theft is not prerequisite to commission of a robbery, nor need the victim of the theft or attempted theft and the victim of the robbery be the same. Of course it must be alleged and proven that the alleged offense was committed ‘in the course of committing a theft’ and ‘with intent to obtain or maintain control of the property’ involved in the theft. Although the proof will involve proving up a theft or attempted theft, the elements of the particular theft (see Chapter 31, and specifically Secs. 31.02 and 31.03, V.T. C.A. Penal Code) or attempted theft (see Sec. 15.01, V.T.C.A. Penal Code), need not be alleged in the indictment.” See Gonzalez v. State, Tex.Cr.App., 517 S.W.2d 785.

The indictment in question failed to allege an element of the offense of theft; to-wit, ownership of the property. Under our holding in Earl, such omission does not render the indictment defective.

Appellant contends that the prosecutor adduced before the jury the extraneous offense that he did not own the car he was driving when arrested, and that he was charged with unauthorized use of an automobile.

Generally, charges of offenses are inadmissible for impeachment purposes unless the charges result in final convictions for felony offenses or final convictions involving moral turpitude, none of which are too remote. Ochoa v. State, Tex.Cr.App., 481 S.W.2d 847. An exception arises when the witness, by his direct testimony, leaves a false impression of his “trouble” with the police. In this situation, it is legitimate to prove that the witness had been “in trouble” on occasions other than those about which he offered direct testimony. Nelson v. State, Tex.Cr.App., 503 S.W.2d 543; Ochoa v. State, supra.

On direct examination of appellant by defense counsel, the following took place:

“Q. Okay, Mr. Reese, are you nervous? “A. Yes, sir.
“Q. Why are you nervous?
“A. I am charged with something I didn’t do.
“Q. Mr. Reese, you have had trouble with the law before, haven’t you?
“A. Yes, sir.
“Q. What kind of trouble do you have with the law?
“A. On a car theft case I have.
“Q. Would you speak up so we can hear you?
“A. A recent case I had, a car theft.
“Q. Did you plead guilty in that case?
“A. Yes, sir.
“Q. Why did you plead guilty?
“A. Because I did.
“Q. You did it and you plead guilty because you were guilty, is that correct?
“A. Yes.
“Q. And how have you pled in this case?
“A. Not guilty.
“Q. Why did you plead not guilty?
“A. Because I am innocent in this case.”

On cross-examination, the prosecutor proceeded to question appellant about convictions for misdemeanor theft, carrying a pistol, and felony unauthorized use of an automobile, and the arrest and charge for unauthorized use of an automobile here complained of.

Appellant’s response to his counsel’s question relative to his “trouble with the law” was that he had plead guilty to a car theft case. While counsel did not ask if this was all the trouble he had been in, appellant’s failure to relate any other instances clearly left the impression with the jury that this was the extent of his “trouble with the law.” Having opened the door to his “trouble with the law,” appellant is in no position to complain of the prosecutor’s inquiry relative to the arrest and charge for unauthorized use of an automobile. Nelson v. State, supra.

Appellant next complains • of the prosecutor’s statement during argument at the guilt stage of the trial that appellant was driving a stolen automobile when arrested.

Appellant’s objection was sustained, and an instruction to disregard was given by the court. No further relief was requested. Appellant having received all the relief requested, nothing is presented for review. Hunt v. State, Tex.Cr.App., 511 S.W.2d 954; Gleffe v. State, Tex.Cr.App., 509 S.W.2d 323.

Appellant contends that “the evidence is insufficient to support the verdict because there is no testimony showing a lack of consent to the taking of the property.”

Appellant points to the fact that at the time of the robbery both assistant manager Bardin and manager Haywood were present in the store. Both were present at trial but only Haywood testified that no consent was given appellant to take the money and property. Appellant’s complaint appears to be bottomed on the fact that assistant manager Bardin did not testify to the lack of consent to the taking of the property. The testimony of Bardin and Haywood reflects that appellant pointed a gun toward them, demanded the money in the cash register, told them to open the safe and threatened to blow their heads off if they did not lie on the floor.

In 5 Branch’s Ann.P.C., Sec. 2592 (2d ed. 1956), it is stated, “If the owner parts with his property because of an assault, fear or violence his consent or want of consent is irrelevant. . . . ” While the foregoing relates to the robbery statutes under the old Penal Code, we perceive no change in this respect under V.T.C.A. Penal Code, Secs. 29.01, 29.02 and 29.03 (effective January 1, 1974). Evidence, direct and circumstantial, supports the fact that the persons who had care, custody and control of the money and property in the store parted with the same because of an assault, fear and violence. We find no merit in appellant’s contention that it was necessary for the manager and assistant manager to testify that they did not give their consent to the taking of the money and property.

The judgment is affirmed.

Opinion approved by the Court.

      . See V.T.C.A. Penal Code, Secs. 29.01, 29.-02 and 29.03.

      . In Earl v. State, supra, it was noted that an identical indictment was no model and reference was made to exemplary forms in Morrison and Blackwell, New Texas Penal Code Forms, p. 33, Sec. 29.03B, Aggravated Robbery — With a Deadly Weapon; McClung, Jury Charges for Texas Criminal Practice, rev. ed., p. Ind. 19.


author: KEITH, Commissioner.

text:
    Stanley Craig TERRILL, Appellant, v. The STATE of Texas, Appellee.
    No. 51039.
    Court of Criminal Appeals of Texas.
    Jan. 21, 1976.
    James P. Finstrom, Dallas (Court-appointed), for appellant.
    Henry Wade, Dist. Atty. and Maridell Templeton and John Roach, Asst. Dist. At-tys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

KEITH, Commissioner.

Appellant was charged with the possession of a usable quantity of marihuana in an amount of less than two ounces. In a trial to the court he was found guilty and his punishment fixed at confinement in jail for thirty days.

His first ground of error challenges sufficiency of the evidence to support the conviction, the thrust of the argument being that the State failed to show that he exercised care, control and management over the marihuana and that he knew it was contraband.

Upon the date in question, at approximately 2:16 a. m., Irving Police Officer Taylor, along with another officer, was investigating a suspected hit and run vehicle then upon an apartment complex parking lot. A vehicle driven by appellant entered the parking lot and the officers became suspicious of the actions and gestures of the occupants of appellant’s vehicle which left immediately upon seeing the officers. The officers pursued appellant’s car and it was stopped some distance from the apartment complex, one of its passengers having left the vehicle before it was stopped.

When Officer Taylor came to the car, appellant was standing outside near the open left front door. In response to Taylor’s question, appellant stated that he owned the vehicle which he had been driving. While the door was open, Taylor observed a matchbox partially open lying upon the floor near the left front seat of the car. The greenish vegetable contents of the box caused him to suspect the contents to be marihuana. It was at this time that appellant was arrested for possession of marihuana.

A subsequent check of the car registration showed it to be owned by one “Terrill” but Officer Taylor did not remember the first name of the registrant. The State established that the box contained marihuana. Appellant did not testify upon the guilt/innocence phase of the trial.

Although appellant complains of the admission of his statement to the officers concerning his ownership of the automobile, we find that such statement was not made as the result of a custodial interrogation but was elicited during the investigatory process before arrest. See Williams v. State, 524 S.W.2d 705 (Tex.Cr.App.1975).

Appellant’s reliance upon Harvey v. State, 487 S.W.2d 75, 77 (Tex.Cr.App.1972), is misplaced. Appellant was not a mere passenger in the vehicle; he was the owner and in control thereof and of its contents which were located in a spot accessible only to himself. We find the evidence sufficient to support the conviction. Aldridge v. State, 482 S.W.2d 171, 174 (Tex.Cr.App.1972); Sanders v. State, 482 S.W.2d 648, 651 (Tex.Cr.App.1972). Ground one is overruled.

In his second ground of error, appellant contends that the evidence is insufficient to sustain the conviction in that it does not show a usable quantity of marihuana as that term is defined in the statute. The matchbox contained 1.48 grams or .05 ounces of marihuana and the expert witness testified that this was a usable quantity; and, leaving the seeds out of the calculated weight of the marihuana, it would still amount to more than two-tenths of a gram and could be made into two or three cigarettes or could be smoked in a pipe. The chemist made no effort to determine whether or not the seeds were or were not incapable of germination. Sec. 1.02(17), Texas Controlled Substances Act, Art. 4476-15, V.A.C.S., 1974-1975 Pamphlet Supplement.

The State’s proof that the box contained 1.48 grams of marihuana was sufficient to show an offense. See Parson v. State, 432 S.W.2d 89, 91 (Tex.Cr.App.1968), where the evidence showed the vial contained 1.41 grams of marihuana. See also, Mitchell v. State, 482 S.W.2d 223, 225 (Tex.Cr.App.1972). Cf. Taylor v. State, 505 S.W.2d 927, 929 (Tex.Cr.App.1974).

Ground two is overruled and the judgment of the trial court is affirmed.

Opinion approved by the Court.


author: ROBERTS, Judge.

text:
    Johnnie Lee ABRON, Appellant, v. The STATE of Texas, Appellee.
    Nos. 51400 & 51401.
    Court of Criminal Appeals of Texas.
    Jan. 21, 1976.

      Jerry Secrest, Temple, for appellant.
    Joe Carroll, Dist. Atty. and Bob D. Odom, Asst. Dist. Atty., Belton, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

These are appeals from convictions for the offenses of aggravated kidnapping and aggravated robbery, with the punishment being assessed at ninety-nine (99) years in each case, respectively.

We are confronted at the outset of this case with a question of whether or not jurisdiction of this appeal will lie from the trial court’s granting of an out-of-time appeal based upon an apparent finding that appellant showed “good cause” for filing a belated notice of appeal. See Art. 44.08(e), V.A.C.C.P.

The record reflects that appellant was indicted in Cause No. 22227 for the offense of aggravated robbery and in Cause No. 22230 for the offense of aggravated kidnapping. Appellant was convicted of the offense of aggravated kidnapping by a jury on September 18,1974, with his punishment being assessed by the jury at ninety-nine years in the Texas Department of Corrections. On October 7, 1974, appellant entered a plea of guilty to the court for the offense of aggravated robbery, and the trial court assessed another ninety-nine-year prison term.

On October 7,1974, appellant was formally sentenced to ninety-nine-year prison sentences, respectively, with the sentences to run concurrently. The trial court thoroughly and completely advised appellant of his right to appeal and his right to have an appeal perfected if he were indigent, and after consultation with both of appellant’s attorneys, the trial court was informed that the appellant did not desire to take an appeal in either case. A waiver of appellant’s right to appeal was executed in open court and approved by the trial court. No appeal having been perfected, appellant was transferred to the Texas Department of Corrections shortly thereafter.

Some two and a half months later, appellant filed a pro se motion with the trial court asking for the appointment of counsel on his appeal. The trial court appointed counsel for the appellant and the attorney filed a motion for an out-of-time appeal with the trial court, and a hearing was subsequently held on this motion.

During the hearing, appellant testified and acknowledged that he had been advised of his right to appeal, and had voluntarily, knowingly and intelligently waived his right to appeal at the time of formal sentencing. Appellant further acknowledged that he had executed at least one written waiver of his right to appeal. Appellant testified that both the trial court and his attorneys had advised him of his rights to appeal and that he understood all of these rights. Appellant admitted that he was represented by two capable attorneys, both experienced in criminal law and procedure.

Notwithstanding the above admissions, appellant contended that, even though he understood his attorneys’ advice, he still believed that he had a right to perfect an appeal at any time thereafter. He maintained that the reason that he did not appeal at the time of sentencing was due to the conditions in the Bell County jail. While appellant admitted that he was not physically coerced by any person to waive his right to appeal, he nevertheless contended that he had a meritorious appeal and requested the trial court to grant said out-of-time appeal for “good cause shown.”

This Court has continually held that, where a late notice of appeal is filed, “good cause” must be shown to the trial court through affidavits or evidence submitted as to why the notice of appeal was not timely perfected. Without reasons or evidence to support the finding of good cause, an out-of-time appeal cannot be allowed, and of course the trial court’s findings are reviewable by this Court. See Morrow v. State, 481 S.W.2d 144 (Tex.Cr.App.1972); Reed v. State, 481 S.W.2d 814 (Tex.Cr.App.1974); Menasco v. State, 503 S.W.2d 273 (Tex.Cr. App.1973); McDonald v. State, 501 S.W.2d 111 (Tex.Cr.App.1973); McCain v. State, 504 S.W.2d 512 (Tex.Cr.App.1974); Robinson v. State, 505 S.W.2d 298 (Tex.Cr.App.1974); Farris v. State, 514 S.W.2d 946 (Tex.Cr.App.1974); Garrison v. State, 517 S.W.2d 553 (Tex.Cr.App.1975).

In the case at bar, the record is replete with evidence that the appellant voluntarily, knowingly and intelligently waived his right, both orally and in writing, to appellate review of his convictions. See Ex parte Ross, 522 S.W.2d 214 (Tex.Cr.App.1975); Smith v. State, 513 S.W.2d 586 (Tex.Cr.App.1974). When an appellant makes a voluntary and intelligent waiver of his right to appeal at the time of sentencing, such waiver is effective unless and until a timely notice of appeal is filed. See Reed v. State, 516 S.W.2d 680 (Tex.Cr.App.1974). However, in the case at bar, no timely notice-of appeal was submitted.

The trial court made no findings as to appellant’s credibility concerning his testimony as reasons for not timely perfecting an appeal. There is no corroboration for appellant’s testimony in this record. The trial court did not even make findings of fact or conclusions of law in reference to the granting of the out-of-time appeal but, rather, ordered that the entire record be sent to this Court for our review.

In view of the clear showing of waiver of the right to appeal, we cannot conclude that appellant’s testimony concerning the conditions in the Bell County jail is sufficient to reflect “good cause” for a belated appeal. Even the appellant admitted that he did not first seek to obtain the out-of-time appeal for some two and a half months after he was received in the Texas Department of Corrections. We find it difficult to understand how the conditions of the Bell County jail could have any impact on appellant’s decision not to appeal after he had been transferred to the Texas Department of Corrections for such a time period.

In the record before this Court the trial court has not actually made a finding in this case that “good cause” has been shown, and without any findings as to the credibility of appellant’s testimony at the hearing, we hold that appellant’s uncorroborated self-serving testimony is insufficient to show “good cause” for granting the relief requested. See Ex parte Young, 479 S.W.2d 45 (Tex.Cr.App.1972); Ex parte Rocha, 482 S.W.2d 169 (Tex.Cr.App.1972).

The appellant having failed to establish good cause for perfecting the belated appeals, the appeals are dismissed.

      . The written waiver of appellant’s right to appeal was filed only in the aggravated robbery case, trial court # 22227, but that waiver of the right to appeal reflects that it was executed in open court and filed on the date of formal sentencing in both cases.

      . There is no need at this time to detail the various reasons for appellant’s displeasure with the conditions of the Bell County jail.


author: OSBORN, Justice.

text:
    Bruce Charles HUNGATE, a minor, Appellant, v. Janice HUNGATE et al., Appellees.
    No. 6461.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 29, 1975.

      Joe K. McGill, Seminole, for appellant.
    Freeman & Curry, William T. Curry, Seminole, Donald G. Canuteson, J. W. Ash-by, Dallas, for appellees.
   OPINION

OSBORN, Justice.

CASE SUMMARY

This case involves the enforcement of rights under a foreign judgment in a summary judgment proceeding. Having concluded that the foreign judgment is entitled to full faith and credit, we affirm the judgment of the trial Court.

FACTS

In February, 1962, Jack and Janice Chil-son took the Appellant, a newly born infant, into their home for purposes of adopting the child as their own. They paid some of the living and medical expense of the unwed mother and obtained her written consent to the adoption. On August 20, 1962, the adoptive parents filed a sworn Petition for Adoption in the County Court of Lancaster County, Nebraska, such County being their place of residence. Although Jack Chilson died five days later, Janice proceeded with the adoption which was subsequently granted on October 4, 1962.

On October 16, 1962, Janice was duly appointed Administratrix of the Estate of Jack Chilson, Deceased, in the County Court of Lancaster County, Nebraska. Upon the filing of a Final Account and Petition for Discharge, the County Judge set the application for hearing and ordered notice be given to all interested persons by publication for three successive weeks in The Daily Reporter of Lincoln, Nebraska. A decree was entered on November 27, 1963, finding that Janice Chilson and two brothers of the deceased, Ted and Louis, were the sole and only heirs at law of Jack Chilson. A later order approved the accounting and closed the estate. The record before this Court contains a certificate from the County Judge of Lancaster County that no guardian ad litem was ever appointed to represent the Appellant in the probate proceedings of Jack Chilson, deceased. The Appellant filed a request for the Texas trial Court to take judicial notice of Section 38-114 of the Nebraska Statutes which empowers courts to appoint guardians to defend the interest of minors in any pending matter. Further, the Appellees filed a request for judicial notice of Section 30-1709 and 30-1710 of the Nebraska Statutes which provides for administration of estates, determination of heirship, and which requires notice by publication for three successive weeks before a final hearing. The record contains an order dated October 17,1963, directing such publication notice, but the record is void of proof of compliance with such statute and order other than an attorney’s Affidavit of Mailing Notice following the first publication. Neither party attempted to establish in this summary judgment proceeding either that the second and third publications were or were not made. The decree contains no recitals as to service.

In March, 1971, Mobil Oil Corporation commenced the present litigation by an in-terpleader suit, in which it tendered into Court oil runs from an interest Jack Chilson acquired as his separate property prior to marriage, and his widow, who has subsequently married James Hungate, the deceased’s two brothers and the minor child mentioned above, were all made parties. Following substantial discovery by' each side, the widow and brothers filed a Motion for Summary Judgment based upon the November, 1963, Nebraska decree as to heir-ship. A duly authenticated copy of such decree is in the record. The attorney ad litem, now representing the minor child, denied that Appellant was bound by such decree and also filed a Motion for Summary Judgment contending that there was an equitable adoption by Jack Chilson and that the Appellant is an heir. The trial Court granted the motion filed by the widow and brothers and the minor appeals with a single point of error attacking the granting of the Appellees’ motion. For purposes of this appeal, we assume that the evidence raises an issue as to an equitable adoption of Appellant by Jack Chilson.

ISSUES

ONE: Is a minor who makes a collateral attack upon an adverse foreign judgment bound by such decree which affects his rights when no guardian ad litem was appointed to represent his interest?

TWO: Where a collateral attack is made upon a foreign judgment in a summary judgment proceeding, who has the burden to establish jurisdiction, or the lack thereof, over the person of those claimed to be bound by such judgment?

DECISION

ISSUE ONE:

Conclusion — A minor may not make a collateral attack upon a foreign judgment in which the court failed to appoint a guardian to represent his interest.

In this case, the widow and brothers as moving parties contend that the Nebraska decree determining the heirship of Jack Chilson is binding upon the Appellant and that he may not make a collateral attack merely because the foreign decree may have been procedurally erroneous. We agree.

Although Rule 166-A, Tex.R.Civ.P., provides for summary judgment based on “ * * * the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, * * * ”, courts have not been reluctant to also grant summary judgment based upon foreign judgments. Bates v. Smith, 155 Tex. 443, 289 S.W.2d 215 (1956); Sidran v. Tanenbaum, 391 S.W.2d 93 (Tex.Civ.App.—Dallas 1965, no writ); Brownwood Manufacturing Company v. Tanenbaum Textile Company, 404 S.W.2d 106 (Tex.Civ.App.—Dallas 1966, writ ref’d n. r. e., cert. denied, 386 U.S. 944, 87 S.Ct. 977), 17 L.Ed.2d 874; Paschall v. Geib, 405 S.W.2d 385 (Tex.Civ.App.—Dallas 1966, writ ref d n. r. e.).

The general rule is that a judgment of a foreign state is entitled to full faith and credit even if it is irregular or erroneous, and this is true even where the procedural law of the state where the judgment was rendered was violated in the proceedings before judgment. 47 Am.Jur.2d, Judgments § 1238. An authenticated judgment of another state, when admitted in evidence in the forum, is presumed to be valid and binding in the state from which it comes, and the presumption of regularity includes the giving of due notice. 47 Am.Jur.2d, Judgments § 1237. Therefore, when a sister-state judgment is assailed in Texas, the attack being collateral, the judgment must be void for the attack to be successful. Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216 (1942); 34 Tex.Jur.2d, Judgments § 385. The courts of this State have consistently held that the failure to appoint a guardian ad litem to represent the interest of a minor will result in a judgment being voidable, and subject to a direct attack, but not void and subject to a collateral attack. Wallis v. Stuart, 92 Tex. 568, 50 S.W. 567 (1899); Kelly v. Kelly, 178 S.W. 686 (Tex.Civ.App.—Galveston 1915, no writ); Davilla v. State, 477 S.W.2d 410 (Tex.Civ.App.—Amarillo 1972, no writ); Texas Employers’ Insurance Association v. Williams, 522 S.W.2d 549 (Tex.Civ.App.—Waco 1975, writ ref’d n. r. e.). There being no showing of Nebraska law on collateral attacks, it is presumed to be the same as Texas. Commonwealth of Massachusetts v. Davis, supra. Thus, we reach the conclusion stated above in regard to the first issue in this case.

ISSUE TWO:

Conclusion — Where a collateral attack is made in a summary judgment proceeding upon a foreign judgment which is entitled to a presumption of regularity, the burden of proof is upon the one attacking the judgment to establish that it is void and of no effect.

The Nebraska Court made a determination of heirship and at least impliedly found that there was no equitable adoption of the Appellant by Jack Chilson. Of course, that determination is not binding upon one who was not a party to the proceeding, and to be binding on all interested parties, including Appellant, citation must have been given as provided by law. The record before the trial Court and this Court fails to establish whether the citation was published three successive weeks as required. We conclude that Appellant had the burden to show such citation was not so published in order to avoid the presumptions in favor of a foreign judgment which was valid on its face. This being a summary judgment proceeding, there are no presumptions to be implied in favor of the trial Court’s judgment which we now review. Box v. Bates, 162 Tex. 184, 346 S.W.2d 317 (1961). But this rule did not prohibit the Texas trial Court from considering presumptions in favor of the foreign judgment which was before it as the basis for Appellees’ Motion for Summary Judgment.

In between Gulf, Colorado & Santa Fe Railway Company v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958), and Zale Corporation v. Rosenbaum, 520 S.W.2d 889 (Tex.1975), the Supreme Court has written and rewritten on the question of burden of proof in summary judgment cases. Torres v. Western Casualty and Surety Company, 457 S.W.2d 50 (Tex.1970); “Moore” Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934 (Tex.1972); Nichols v. Smith, 507 S.W.2d 518 (Tex.1974); and Oram v. General American Oil Company of Texas, 513 S.W.2d 533 (Tex.1974). Obviously, the moving party must establish its right to a judgment as a matter of law, and there is no penalty of waiver for an opponent of a motion failing to point out that the mov-ant’s evidence is only sufficient to raise a fact issue. Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972). In this case, we are not actually involved with an affirmative defense, but a basic complaint about jurisdiction over the person. What, then, is the effect of proof of a valid and subsisting judgment, where no other proof is offered?

In several cases which involved a trial on the merits, the courts have held that the foreign judgment makes out a prima facie case. Garman v. Reynolds, 284 S.W.2d 262 (Tex.Civ.App.—Fort Worth 1955, writ ref’d); Roberts v. Hodges, 401 S.W.2d 332 (Tex.Civ.App.—Amarillo 1966, writ ref’d n. r. e.). Also, see cases cited in Mitchim v. Mitchim, 518 S.W.2d 362, 364 (Tex.1975). What, then, is a prima facie case in such an instance? It may mean a party has discharged his burden and is entitled to have the jury consider his case. This would not entitle one to a summary judgment. It also has another meaning.

“Prima facie is also employed in a different sense. It is applied where the party has not only produced sufficient evidence to avoid an adverse peremptory ruling but has gone further and by a general mass of strong evidence or a presumption has entitled himself to a directed verdict if the opponent fails to proceed with the evidence. While it is not altogether clear from the decisions, it is believed that the Texas courts more often use the term ‘prima facie case’ in the latter sense.” McCormick and Ray, Texas Law of Evidence, Volume 1, Section 55.

In that regard, the Court in Gulf, Colorado & Santa Fe Railway Company v. McBride, supra, noted that when a summary judgment is supported by extrinsic evidence sufficient on its face to establish facts, which, if proven at the trial, would entitle the movant to an instructed verdict, the opponent must show evidentiary data which will raise an issue as to a material fact.

If in this case there had been a trial on the merits before a jury and Appellees had offered into evidence the authenticated copy of the foreign judgment and rested their case, and Appellant offered no evidence, would there be an issue for a jury’s determination? We think not. Thus, the foreign judgment would in such a situation have entitled Appellees to an instructed verdict and under the McBride case such proof is sufficient to support the granting of their motion for summary judgment in this case.

Thus, we conclude that in order to make a collateral attack on the Nebraska judgment, Appellant had the burden to come forward with some evidence to show that the Nebraska Court did not have jurisdiction over his person because of defective or improper service and thus make the foreign decree void.. This he failed to do.

The Appellant’s point of error is overruled. The judgment of the trial Court is affirmed.


author: HALL, Justice.

text:
    Mary Jane Smith FOX, Appellant, v. Lilly SMITH et al., Appellees.
    No. 5469.
    Court of Civil Appeals of Texas, Waco.
    Nov. 20, 1975.

      Tom Sneed, Odessa, for appellant.
    Bill McGowan, H. B. Virgil Crawford, Brownfield, for appellees.
   HALL, Justice.

This suit was brought against the trustees of an employees’ profit-sharing retirement trust by the sister of a deceased employee, the former (divorced) wife of the employee, and his surviving wife, for benefits under the trust. The sister claims as the employee’s designated beneficiary of the benefits; the former wife claims as joint owner thereof; and the surviving wife claims as community survivor. After a hearing without a jury, the court divided the benefits equally between the sister and the former wife, but ordered that the trustees’ attorneys’ fees of $875 be paid from the trust account before distribution. Only the sister appeals. We affirm.

There is no dispute in the material facts. Waymon Smith married the appellee, Lilly Smith, on August 26, 1957. They were divorced on June 5, 1969. The judgment of divorce is silent as to their property or its disposition. Waymon married Dorothy Jean soon after his divorce from Lilly. This marriage continued until his death on August 25,1972. For a period extending from sometime in 1958 into 1968, Waymon was employed by Goodpasture Grain And Milling Company, Inc., and thereby participated in a profit-sharing retirement plan wholly funded by Goodpasture for its employees. The plan is administered in the form of a trust for the benefit of the employees. The first contribution to Waymon’s account was made by Goodpasture in June, 1958; and the last one was made in June, 1968. On September 30, 1958, Waymon, in writing, designated the appellant, Mary Jane Smith Fox, his older sister, as the beneficiary of his benefits under the trust in the event of his death before distribution. The balance of Waymon’s account immediately after the last contribution thereto by Goodpasture, in June, 1968, was $10,855.77. This was also the balance at the time of Waymon’s divorce from Lilly and his marriage to Dorothy Jean, in June, 1969. When Waymon died in August, 1972, the balance was $15,-524.13. No benefits have ever been paid from the account. At the time of trial in October, 1974, the balance was $20,397.49. With the exception of a very small amount which fits within the rule de minimis non curat lex, the growth of the account from the time of the termination of Waymon’s marriage to Lilly resulted solely from earnings of the account. According to the provisions of the plan, an employee’s interest therein becomes vested “after five (5) full years of employment”; and the benefits in question became payable upon Waymon’s death. All parties have always been residents of Texas.

The trust agreement shows by its terms that the plan was established and funded by Goodpasture as an incentive for, and as additional compensation for, “loyal and efficient service” by its employees. Payments of this nature are not gifts or donations to an employee, but are “as much a fruit of his labors as his regular wages and salary.” Lee v. Lee, 112 Tex. 392, 247 S.W. 828, 833 (1923); Herring v. Blakeley (Tex.Sup., 1965), 385 S.W.2d 843, 846. At all pertinent times it was the law in Texas, as it is now, that wages of the husband and wife are community property; and that all property possessed by the spouses at the time of dissolution of their marriage is presumptively community property. Arts. 4613, 4614, 4619, Vernon’s Tex.Civ.St. See, now, V.T.C.A., Family Code, §§ 5.01, 5.02. It was and is also the rule that, after divorce, the spouses are tenants in common or joint owners of community property of which division is not made in the divorce decree. Taylor v. Gatalon, 140 Tex. 38, 166 S.W.2d 102, 104 (1942); Busby v. Busby (Tex.Sup., 1970), 457 S.W.2d 551, 554. Under these rules, Waymon and Lilly became joint owners, equally, of the trust fund in question at the time of their divorce. Any subsequent earnings by the fund would also be equally theirs. The trial court’s award of one-half of the total account to Lilly was correct.

This suit was originally filed by Mary Jane, Lilly, and Dorothy Jean as co-plaintiffs against the trustees for a division of the trust account. Later, their claims became antagonistic and they filed separate petitions for the funds. Without detailing the trustees’ answer to these claims, we believe the trial court correctly held that it qualifies as a bill of interpleader within the provisions of Rule 43, Vernon’s Texas Rules Civ.Proc. In it, the trustees prayed for their attorneys’ fees. By stipulation of the parties, the attorneys’ fees allowed the trustees is reasonable. Only the right of recovery is questioned.

The innocent stakeholder in an in-terpleader action in Texas is entitled to reasonable attorneys’ fees, to be paid out of the impleaded fund. United States v. Ray Thomas Gravel Company (Tex.Sup., 1964), 380 S.W.2d 576, 581.

The judgment is affirmed.

      . Rule 43. Interpleader. Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that he is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of cross-claim or counterclaim. The provisions of this rule supplement and do not in any way limit the joinder of parties permitted in any other rules.


author: CADENA, Justice.

text:
    HOSPITAL CONSULTANTS, INC., et al., Appellants, v. James S. POTYKA, M.D., et al., Appellees. Rodney D. BOBBITT, M.D., et al., Appellants, v. Tedd CROW, Appellee.
    Nos. 15406, 15407.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 26, 1975.
    Rehearing Denied Dec. 31, 1975.

      Rique D. Bobbitt, Houston, Patrick Priest, San Antonio, for appellants.
    George W. Krog, San Antonio, for appel-lees.
   CADENA, Justice.

In our No. 15406 plaintiffs, Dr. James S. Potyka and Dr. James Larry Miller, sued defendants, Hospital Consultants, Inc. (a Texas Corporation), Dr. Rodney D. Bobbitt and the Baptist Memorial Hospital System, seeking (1) judgment declaring unenforceable certain covenants contained in an agreement between Dr. Bobbitt and Baptist Memorial Hospital System and in contracts between each plaintiff and Hospital Consultants, Inc.; and (2) an injunction preventing Dr. Bobbitt and Hospital Consultants, Inc., from attempting to enforce such covenants which allegedly had the effect of preventing or, at least, severely restricting, the practice of emergency room medicine by Dr. Potyka and Dr. Miller.

In No. 15407 Dr. Tedd Crow, as plaintiff, sought essentially the same relief against the same defendants with reference to the covenant in the contract between Dr. Bobbitt and Baptist Memorial Hospital System and a covenant contained in a contract between Dr. Bobbitt and Dr. Crow.

The cases were consolidated for the purpose of trial but, following trial without a jury, the trial court rendered separate judgments in each case. Each judgment declares the covenants to be unenforceable and restrains Dr. Bobbitt from attempting to enforce the covenant in his contract with Baptist Memorial Hospital System. Only Dr. Bobbitt and Hospital Consultants, Inc., have perfected appeals, and we consolidated the cases for argument and decision.

Plaintiffs, Dr. Miller, Dr. Potyka and Dr. Crow will be referred to by their surnames or, collectively, as “plaintiffs.” Dr. Bobbitt will be identified as “Bobbitt.” Hospital Consultants, Inc., will be designated as “corporation”, while Baptist Memorial Hospital System will be referred to as “Baptist.”

By instruments dated December 24,1971, Bobbitt and Baptist agreed that Bobbitt, in consideration of payment to him by Baptist of $17,500.00 per month, would furnish competent physicians to staff the emergency rooms of hospitals operated by Baptist on a 24-hour basis. Baptist was to make no payments to the doctors assigned to its emergency rooms, since the agreement contemplated that such doctors would collect, and retain for their own use, the customary fees from the patients they attended in the emergency rooms. This contract contained the following provision, which is the covenant which Bobbitt has been enjoined from enforcing:

So long as an Emergency Room Physician is under contract with [Bobbitt] to provide professional services in the emergency room of any hospital, and for a period of three (3) years thereafter, Baptist and/or Hospitals shall not contract with said Emergency Room Physician to otherwise perform professional services in the emergency room of any Hospital, or allow said Emergency Room Physician to provide professional services in the emergency room of any Hospital, except as provided for in his contract with [Bobbitt]. It is understood that the foregoing provisions are for the protection of the rights of [Bobbitt] and are not intended to restrict the rights and privileges of a physician to become an active member of the medical staff of any Hospital after ending his contractual relationships with [Bobbitt].

The contract also recited that since the damages resulting to Bobbitt as a result of a breach of the agreement by Baptist, would be difficult to ascertain, breach of the contract by Baptist would render it liable to Dr. Bobbitt in the sum of $50,-000.00, which sum was described as “liquidated damages and not ... a penalty.”

Subsequently, Bobbitt and others took steps to form the defendant corporation, Hospital Consultants, Inc. Bobbitt’s name, however, does not appear in the articles of incorporation which were filed on September 15, 1972. The principal activity of this corporation was the negotiation of contracts with hospitals in Texas such as the one executed in 1971 between Bobbitt and Baptist. Bobbitt owns stock in this corporation.

Despite his involvement in the formation of, and his ownership of stock in, the corporation, and despite the fact that he appears to have taken an active part in the management of the affairs of the corporation, Bobbitt, on February 23, 1973 (some 4 months after the formation of the corporation), entered into a contract with Crow, one of the plaintiffs, according to which Crow agreed to assume responsibility “for examining every person who presents himself for care and/or treatment at the emergency room of the hospital to which he is assigned. . . ” The instrument recited that Bobbitt had entered into contracts with various hospitals to provide emergency room services, and that the purpose of the agreement was “to enable Bobbitt to comply with his contracts with said hospitals, while enabling Crow to obtain substantial compensation for the exercise of his professional skills.” The contract contained the following restrictive covenant:

. CROW agrees that he will not enter into competition with BOBBITT by contracting or otherwise arranging to provide emergency room services for any hospital within a fifty (50) mile radius of any hospital to which he may be assigned, for a period of three (3) years following termination of this agreement, nor will he enter into an agreement similar to this agreement with any person or group of persons during said three (3) year period. Provided, however, that CROW shall be free to enter into a partnership or professional association with other medical doctors, so long as the terms of the partnership agreement or the articles of association or by-laws of the professional association do not abrogate or conflict with his obligations hereunder.

The instrument identifies Bobbitt and Crow as the parties to the contract. The corporation is nowhere mentioned, and the agreement is signed by Bobbitt with nothing to indicate that he signed the instrument in other than his individual, as distinguished from a representative, capacity.

Miller, on May 1, 1973, and Potyka, on June 22, 1973, signed contracts similar to the Bobbitt-Crow agreement, except that the Miller and Potyka contracts were with the corporation, rather than with Dr. Bobbitt. Although Bobbitt signed these agreements on behalf of the corporation, he is nowhere mentioned in the body of the agreement. The Miller and Potyka contracts recite that the corporation has entered into contracts to provide emergency room service for various hospitals, but it contains no reference to the Bobbitt-Baptist contract nor to any other contract to which Bobbitt is, or was, a party.

All three plaintiffs were assigned to work in emergency rooms of hospitals operated by Baptist in Bexar County. In the fall of 1973 or, perhaps, sooner, plaintiffs began to hear rumors that Baptist would not renew its contract with Bobbitt when such contract expired on April 25, 1974. Plaintiffs met with Bobbitt early in December, 1974, and questioned him about the matter. Bobbitt acknowledged that there were differences between him and Baptist’s administrator, but he assured them that these differences would be resolved and that, in any event, because of his influence with members of Baptist’s board of trustees, the contract would be renewed. He added that if the Baptist contract was not renewed, plaintiffs would be released from their contracts, except that he would not consent to their working in the emergency room of any Baptist hospital.

The Bobbitt-Baptist contract was not renewed when it expired on April 25, 1974. Instead, Baptist signed a 2-year contract for the provision of emergency room services in its hospitals with a partnership doing business under the name of Emergency Room Affiliates. Plaintiffs agreed to work in the Baptist emergency rooms for this partnership, but Baptist refused to permit them to do so because of the restrictive provision in its contract with Bobbitt. Plaintiffs then filed the suits which are now before us and, under protection of a temporary injunction, began working at Baptist’s emergency rooms. Emergency Room Affiliates does not require that its doctors sign written agreements.

At the time of trial, Bobbitt had no emergency-room contract with any hospital located in Bexar County. The corporation has never had any such contract with Baptist or with any hospital located within a 50-mile radius of a hospital operated by Baptist. Both Bobbitt and the corporation are still actively seeking to negotiate similar contracts with hospitals in Bexar County and elsewhere in Texas. There is testimony concerning other contracts with hospitals in other cities, but it is not clear whether Bobbitt or the corporation is a party to such contracts.

We consider first the noncompetition agreements contained in the Bobbitt-Crow contract and in the contracts of Miller and Potyka with the corporation.

The trial court concluded that the individual contracts of plaintiffs with Bobbitt and with the corporation do not create the relationship of employer-employee, but, rather, the relationship of contractor-subcontractor, and that restrictive covenants against competition may not be applied to subcontractors beyond the term for which the subcontractor agrees to render exclusive service. Defendants’ fifth and sixth points challenge these conclusions. For the purposes of this opinion, we will assume that the rules applicable to a subcontractor’s agreement not to compete with the contractor are the same as those applicable to an agreement by an employee not to compete with his employer. We will, therefore, discuss the problem in terms of an employee’s agreement not to compete with his employer.

A covenant restraining an employee from competing with his employer on termination of the employment is valid if it is reasonable in view of the circumstances of the particular case. In Weatherford Oil Tool Co. v. Campbell, 161 Tex. 310, 340 S.W.2d 950, 951 (1960), our Supreme Court said that a postemployment restraint is reasonable, assuming that the public interest is not directly involved, if it does not impose on the employee “any greater restraint than is reasonably necessary to protect the business and good will of the employer.” Of., 2 Restatement, Contracts Secs. 513-15 (1932).

Bobbitt testified that his fear, which he described as “paranoid”, was that the hospitals and doctors whom he had brought together would decide to deal with each other directly, eliminating Bobbitt.

Most courts recognize that an employer has a sufficient interest in retaining his customers to support an employee’s covenant whenever the employee’s relationship with customers is such that there is a substantial risk that he may be able to divert all or part of their business. This is the “customer contact” which is discussed, along with its limitations, in Arthur Murray Dance Studios of Cleveland v. Witter, 105 N.E.2d 685, 705-09 (Ohio Com.Pl.1952). Clearly, whether the risk is great enough to justify the restriction, and the extent of the permissible restriction, must depend on the extent to which the employee is likely to be identified in the mind of the customer with the product or service being sold. The most important considerations are the frequency of the employee’s contacts with customers and whether they are the employer’s only contacts or relationships with such customers; the locale of the contact; and the nature of the functions performed by the employee. Blake, Employee Agreements Not To Compete, 73 Harv.L.Rev. 625, 659 (1960).

The evidence clearly establishes that plaintiffs performed their duties only on the premises of Baptist, that is, on the customer’s premises. However, the evidence does not establish that the circumstances were such as to establish any sort of rapport between the emergency room physicians and Baptist’s administrator or board of trustees. The evidence supports the conclusion that Bobbitt was in close contact with the persons at Baptist who were in a position to determine whether Baptist would or would not continue to deal with Bobbitt. Bobbitt’s loss of Baptist as a “customer” was not due to the fact that the emergency room physicians, because of their close association with Baptist, became identified in Baptist’s mind with the service being sold by Bobbitt. There is more than ample testimony to support the conclusion that Baptist’s failure to renew the Bobbitt contract was the result of dissatisfaction with Bobbitt and the manner in which he was performing under his contract, rather than the result of any desire by Baptist to deal directly with the emergency room physicians. Baptist did not opt to deal with these physicians directly, thus eliminating Bobbitt. Baptist chose to contract with Emergency Room Affiliates instead of with Bobbitt, and there is nothing to compel the conclusion that the emergency room physicians influenced this decision in any way. The decision by Baptist was not based on a desire to continue its association with the emergency room doctors. In fact, after it had chosen to contract with Emergency Room Affiliates, Baptist refused to allow the emergency room doctors to render professional services in its emergency rooms. In short, the evidence shows that plaintiffs did not “pirate” Bobbitt’s customer. It was not until Bobbitt had been replaced by Emergency Room Affiliates that plaintiffs sought to perform their professional services in Baptist’s emergency rooms under the direction of someone other than Bobbitt.

What we have said, although couched in terms of “emergency room physicians” is really applicable only to plaintiff, Crow, since he was the only doctor who had a contract with Bobbitt, and Bobbitt was the only person who could claim Baptist as a customer. Miller and Potyka had no contractual relations with Bobbitt. Their contract was with the corporation, and Baptist was not the customer of the corporation. Neither Bobbitt nor the corporation contends that the corporation was merely the alter ego of Bobbitt, and there is no finding to that effect.

Another important purpose sought to be achieved by an employee restraint, in addition to preservation of the employer’s customers, is preventing valuable business information obtained by employees from being used by a competitor. This is the so-called “trade secrets” doctrine. Here the trial court found that there are no “customer lists, sales or trade techniques, new methods, prospect lists, secret processes, corporate good will or commercial procedures” that plaintiffs “could appropriate to their own use or to the use of another person or could use unfairly to compete with” Bobbitt or the corporation. In addition, the trial court found that the “knowledge and training of plaintiffs was not uniquely valuable” to Bobbitt or the corporation, and that the business of furnishing licensed physicians to render emergency room treatment “is not one in which the competitive nature of the service provides the physicians with unfair knowledge of their employer’s business.” These findings and conclusions are challenged by defendants’ points 20, 21, 22 and 23.

There is testimony to the effect that Bobbitt conducted a training program for the emergency room physicians; that he purchased videotape equipment for this purpose; and that he paid their expenses so that they could attend conventions at which they could gain knowledge in the field of emergency medicine. There is evidence that the emergency room physicians became more competent and better qualified to practice emergency medicine than a general practitioner.

We are unwilling to hold that general knowledge, skill or facility acquired through training or experience while working for an employer become the “property” of the employer. Such knowledge and skill appertain exclusively to the employee, even though they were acquired by on-the-job training which was extensive and costly. Club Aluminum Co. v. Young, 263 Mass. 223, 160 N.E. 804 (1928). The result might be different if the evidence establishes that the training methods were, in fact, a “secret” of the employer. There is nothing in the record to indicate that the training procedures were developed by, and known exclusively to, Bobbitt. The fact that he used videotapes which he apparently purchased on the open market, and that he sent the doctors to conventions indicated that the special “training” was something less than Bobbitt’s secret. There is nothing to indicate that Bobbitt confided in the doctors by revealing to them special techniques known only to him. It may be safely assumed that the emergency room physician became more adept because of the fact that they labored regularly in emergency rooms. But the knowledge they thus acquired was not imparted to them in confidence by the employer. Every employee learns by experience, whether the experience be in digging a ditch or in setting a broken bone. Essentially, the problem is one of breach of trust or confidence. There can be no betrayal of confidence unless there is a confidence to betray. National Starch Products, Inc. v. Polymer Industries, Inc., 273 App.Div. 732, 79 N.Y.S.2d 357 (1948); Blake, op. cit., 73 Harv.L.Rev. at 668.

Again, the difference in the situations of Crow, on the one hand, and Miller and Potyka on the other must be kept in mind. There is no evidence that Potyka and Miller received any training whatever from the corporation with which they had contracted.

Under the circumstances of this case, the interpretation of the restrictive covenants for which defendants contend would make the agreements unreasonable, since they impose on plaintiffs a restraint more onerous than is reasonably required for the protection of the business and goodwill of defendants. To prevent plaintiffs from being employed by Emergency Room Affiliates endangers no protectible interests of defendants, and the sole purpose of the restriction, if so interpreted, would be to prevent Emergency Room Affiliates, or other similar groups, from competing with defendants. In the absence of special circumstances, a covenant which has as its sole purpose the elimination of competition is not reasonable. The special circumstances which have been traditionally recognized, such as customer lists, “pirating” of the employer’s customers because of the close association between employee and such customers, secret techniques, etc. are not present here.

It is true that there are cases, such as those involving sale of a business or goodwill, where a restrictive covenant has been enforced although its sole objective is the elimination of competition. But a restrictive covenant in connection with the sale of a business or goodwill is quite different from a post-employment restriction. A transfer of goodwill cannot be accomplished effectively unless the transferor agrees not to diminish the value of the thing transferred by refraining from competing with his transferee. Such a restraint is necessary in order to insure that the transferee will receive the full value of the thing which he is acquiring. An employee restraint is not necessary in order to insure that the employer is getting the full value of that which is acquiring by the employment contract. What he is acquiring in the employment case is simply the current services of the employee. The transfer of a business or goodwill of itself furnished, by its very nature, the special circumstances which make the transferor’s agreement not to compete reasonable and enforceable. Decisions involving restraints in connection with the sale of a business or goodwill, therefore, have little persuasive effect in cases involving post-employment restrictions. 2 Restatement, Contracts Sec. 515, comment b (1982); Carpenter, Validity of Contracts Not To Compete, 76 U. of Pa.L.Rev. 244, 267 (1928).

The burden was on defendants to establish the existence of facts which will support the legal conclusion that the restriction is reasonable. Weber v. Hesse Envelope Co., 342 S.W.2d 652 (Tex.Civ.App.—Dallas 1960, no writ); Denny v. Roth, 296 S.W.2d 944, 947 (Tex.Civ.App.—Galveston 1957, writ ref’d). Considering the record as a whole, it cannot be said that the trial court’s refusal to find the existence of facts which would support the legal conclusion of reasonableness is contrary to the weight and preponderance of the evidence.

Our conclusion requires that defendants’ points 5, 6, 7,10,11,12, 20, 21, 22 and 23 be overruled.

Since we have decided that (the restrictions in the contracts of the individual plaintiffs are unreasonable as written, we need not consider defendants’ points challenging the trial court’s conclusion that the Bobbitt-Baptist contract and the individual contract of Crow with Bobbitt, and the contracts of Miller and Potyka with the corporation must be treated as component parts of a single transaction, so that the invalidity of the restriction in the Bobbitt-Baptist permeates the entire transaction and renders plaintiffs’ individual agreements unenforceable. Defendants’ points 1, 2 and 4 present no grounds for reversal.

We express no opinion on whether the restrictive covenants violate the provisions of the Texas Antitrust Act.

Defendants’ remaining points complain of that portion of the judgment invalidating the covenant in the Bobbitt-Baptist agreement.

With reference to Miller and Potyka, it must be noted that the restraint on Baptist does no more than limit Baptist’s conduct with reference to emergency room physicians who are under contract, or have been under contract, with Bobbitt. The contract expressly recites that the restriction is for the protection of Bobbitt. There is nothing in the language of the restriction which indicates an intention to curtail Baptist’s freedom to deal with doctors who have entered into contractual relations with any person or entity other than Bobbitt, nor is there any suggestion in the agreement that the restriction was intended to protect the corporation. The corporation was not in existence at the time of the execution of the agreement, and there is no evidence to support the conclusion that, at the time it entered into the agreement, Baptist had any reason to expect that the corporation would be subsequently formed.

The record does not disclose that Bobbitt at any time assigned his rights under his contract with Baptist to the corporation, nor that the corporation assigned its rights under its contracts with Miller and Potyka to Bobbitt, q

On the basis of the record before us, there is no basis for holding that the corporation has any interest in the enforceability of the Bobbitt-Baptist contract. As far as Bobbitt’s rights under such contract are concerned, they extend no further, assuming the restriction to be valid, than the right to insist that Baptist desist from dealing with persons under contract to Bobbitt. Since Miller and Potyka have never entered into any contract with Bobbitt, as distinguished from the corporation, the covenant, by its express terms, in no way circumscribes Baptist’s rights to deal with them.

The third plaintiff, Crow, of course, entered into a contract with Bobbitt and he is included within the class of persons designated in the agreement. We must, then, consider the validity of the restriction contained in the Bobbitt-Baptist contract in determining the rights of Crow.

We know of no case involving a covenant similar to that which we are now considering. It clearly is quite different from the ordinary post-employment restriction, since, assuming that the relationship between Bobbitt and Baptist is that of employer (Baptist) and employee (Bobbitt), the restriction here is on the employer, rather than on the employee. In using the terms “employer” and “employee,” we do not ignore the fact that the contract recites that the relationship between Baptist and Bobbitt under the contract is not that of employer and employee, since Bobbitt and the physicians with whom he might contract are not subject to the supervision, management, direction or control of Baptist in the performance of their professional duties.

Essentially, the covenant is an agreement by Baptist not to “employ” any physician who was, or had been within the preceding three years, under contract with Bobbitt. Except for its unilateral character, the agreement is similar to “no-switching” agreements under which the parties agree not to employ each others’ former employees until the expiration of a specified period following the termination of the former employment. Such agreements have generally been held invalid. Anno: 2 A.L.R.Fed. 839 (1969). However, such decisions have been based on provisions of applicable antitrust laws.

It is one thing to uphold a restraint as reasonable where it results from an agreement freely entered into by the person whose commercial activities are being restricted. Such a conclusion is the result of the weighing of several policy considerations, not the least of which is our traditional reverence for a person’s freedom to contract. But where the restriction on B’s freedom results, not from B’s voluntary agreement with A, but from A’s agreement with C, the difference in the situation and in the policy considerations to be balanced is obvious. In the one case B voluntarily relinquishes his freedom in order to obtain a benefit which, at the time of such relinquishment, he considered desirable. In the other situation B is deprived of his freedom without his acquiescence and with no resulting benefit to him.

Bobbitt testified that he insisted on the inclusion of the restriction in his contract with Baptist because of his fear, which he described as “paranoid,” that once he had complied with his obligation to assure “coverage” of Baptist’s emergency rooms, it would be “very easy” for Baptist and the physicians whom he had “brought together” to “eliminate” him.

Much, if not all, of what we said in connection with the validity of the restriction in Crow’s contract with Bobbitt is applicable here. Bobbitt’s loss of Baptist as a customer was not the result of a desire on the part of Baptist, because of its close association with Crow, to deal with Crow rather than with Bobbitt. Even if we assume that Crow, because of his frequent presence in Baptist’s emergency rooms, would be able to form such a close relationship with Baptist’s officers and place himself in a position to “steal” Bobbitt’s customer, Bobbitt would be amply protected from this eventuality if the restriction on Baptist merely restrained Baptist from entering into a contract with any physician under contract to Bobbitt who performed professional services in Baptist’s emergency rooms. But the restriction goes beyond this. It prevents Baptist from entering into a contract, similar to its contract with Bobbitt, with any physician under contract with Bobbitt, even if such physician had not performed services in the Baptist emergency rooms. It requires great imagination to understand how a physician assigned to another hospital and who had had no association whatever with Baptist, would be in a position to take advantage of the fact that he had been assigned to such other hospital in order to induce Baptist to “eliminate” Bobbitt.

With specific reference to Crow, the covenant does more than prevent Baptist from entering into a contract with Crow similar to its contract with Bobbitt. The restriction would prevent Crow from rendering professional services in the Baptist emergency rooms even if he has no contractual relations with Baptist. The distinction between the two situations is made clear by the record before us. Crow has made no agreement with Baptist. His agreement, if any, is with Emergency Room Affiliates. In the absence of facts making the “customer contact” theory applicable or showing a breach of trust or confidence arising from improper use by Crow of Bobbitt’s trade secrets, customer list, etc., enforcement of the Bobbitt-Baptist covenant would only have the effect of insulating Bobbitt against competition by Emergency Room Affiliates.

The judgment of the trial court is affirmed.


author: WARD, Justice.

text:
    Warren BURTON, Plaintiff in Error, v. HOME INDEMNITY COMPANY, Defendant in Error.
    No. 6474.
    Court of Civil Appeals of Texas, El Paso.
    Dec. 3, 1975.
    Rehearing Denied Dec. 31, 1975.

      Michael McLeaish, Odessa, for appellant.
    Shafer, Gilliland, Davis, Bunton & McCol-lum, Connell Ashley, Ray Stoker, Fred M. “Mickey” Jones, Odessa, for appellee.
   OPINION

WARD, Justice.

This is an appeal by Petition for Writ of Error. Warren Burton sued in the District Court of Ector County to set aside a Compromise Settlement Agreement entered in his Workmen’s Compensation claim, and the carrier was granted a final judgment on its Motion for Summary Judgment. The carrier presents a motion to dismiss this appeal based on the prohibition contained in Art. 2249a, Tex.Rev.Civ.Stat.Ann., which forbids appeal by writ of error to one who participates in the hearing in open court in the trial that leads to the final judgment. The motion to dismiss is granted and the Petition for Writ of Error is dismissed.

Warren Burton sustained an accidental injury on October 22, 1968. A Compromise Settlement Agreement was signed by the workman and the carrier on November 27, 1968, and approved by the Industrial Accident Board on December 30, 1968. The workman filed the present lawsuit in June, 1973, and in his first amended original petition alleged that the Compromise Settlement Agreement should be set aside on the ground of fraud. The carrier answered, and then moved for summary judgment on the bar of the two-year statute of limitations. The summary judgment proof consisted of the deposition of the workman and of a representative of the carrier, the records on file regarding the Workmen’s Compensation claim, and an affidavit by Warren Burton filed as “Plaintiff’s Answer in Response to Defendant’s Motion for Summary Judgment.” The final judgment entered in the summary judgment proceeding in favor of the carrier recites that the summary judgment “Motion has been made in proper time and form, that proper service thereof has been made and that the parties are before the Court for a hearing thereon; * * * if

The extent to which a non-movant defendant participated in a summary judgment proceeding was considered in Thacker v. Thacker, 496 S.W.2d 201 (Tex.Civ.App.—Amarillo 1973, writ dism’d). There the non-movant elected to absent herself from the summary judgment hearing. It was reasoned that since all prerequisite party and counsel participation was required to be taken and had been taken prior to the hearing day, no participation was required at the hearing in open court at which the summary judgment was rendered. The wording of the Summary Judgment Rule 166-A, Subsection (c), Tex.R.Civ.P., controlled the decision of the court, and it held that the non-movant participated as a party and as an attorney “in the actual trial of the case in the trial court,” under the purview of Art. 2249a, Tex.Rev.Civ.Stat.Ann., to such a degree that she could not appeal by writ of error.

Here the non-movant in the summary judgment proceeding was the plaintiff. He participated in the hearing as shown in the judgment of the trial Court. His deposition was taken and was submitted, and he then filed his affidavit as his answer to the motion. He appeared to an extent that he is now disqualified to appeal by this proceeding. The statute denying the right to use the petition for writ of error to a party who appeared in the trial is mandatory, jurisdictional and cannot be waived. Nutter v. Phares, 523 S.W.2d 292 (Tex.Civ.App. — Beaumont 1975, writ ref’d n. r. e.).

The carrier’s motion to dismiss for want of jurisdiction is granted. The Petition for Writ of Error is dismissed.