author: ONION, Presiding Judge. PHILLIPS, Judge,

text:
    Willie Arthur MILTON, Appellant, v. The STATE of Texas, Appellee.
    No. 53332.
    Court of Criminal Appeals of Texas.
    April 13, 1977.

      James H. Kreimeyer, Belton, for appellant.
    Joe Carroll, Dist. Atty., and Al W. Schorre, Jr., Asst. Dist. Atty., Belton, Jim D. Yollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for possession of heroin. Punishment was assessed by the jury at twenty (20) years’ imprisonment and a fine of $10,000.

In his sole ground of error appellant contends the “court erred in overruling appellant’s objection to the admission of the alleged heroin as evidence as it was seized as a result of an illegal arrest under Article 14.04, Texas Code of Criminal Procedure.”

The record shows that on the evening of November 22,1975 Detective Spriggs of the Killeen Police Department received information from a known and reliable informer who had previously given information to the police about narcotic violations. The informer told Spriggs that appellant had heroin on his person packaged in tinfoil, that he (informer) had personally observed the heroin in appellant’s possession within the last 24 hours, and that he was familiar with heroin and the instruments used to inject heroin. He said appellant would be located in the Yellow Cab Cafe in Killeen. Spriggs had seen appellant prior to the date in question. At approximately 11:10 p. m. on November 22, 1975, Spriggs and Officers Tampio and Smith set up a surveillance of the cafe. Shortly thereafter, the appellant walked up the street and stood in the doorway of the cafe. Several minutes later a marked patrol car came up the street, and upon observing the same, the appellant entered the cafe quickly. Spriggs went to the rear door because “. . . it is very easy to just run out the back door and elude officers.” The officers entered the cafe and detained the appellant. Spriggs rejoined them, and as they were escorting the appellant outside the cafe, he asked why he was being detained and Spriggs told him they had information he was in possession of heroin. At this point appellant reached his right hand into his right jacket pocket. Spriggs grabbed his hand to prevent any narcotics from being removed and destroyed and for the officers’ “self-protection.” Appellant was frisked, and a matchbox containing four tinfoils of a substance, later shown to be heroin, was found in the pocket into which appellant had reached. An ounce of what was later shown to have been heroin was in the left pocket of the jacket under his top jacket. A syringe, needle and plunger were also discovered. Appellant’s arms bore track marks.

The United States Supreme Court only recently held that the federal constitution does not require a showing of exigent circumstances for a felony arrest made in a public place which is based on probable cause. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). See also United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). In Watson the Court wrote:

“Law enforcement officers may find it wise to seek arrest warrants where practicable to do so . . . But we decline to transform this judicial preference into a constitutional rule when the judgment of the Nation and Congress has for so long been to authorize warrantless public arrests on probable cause rather than to encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances, whether it was practicable to get a warrant, whether the suspect was about to flee, and the like.”

Despite these decisions under our dual system of government, it is state law and not federal law that governs the legality of a state arrest so long as that law does not violate federal constitutional protections against unreasonable searches and seizures. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). The states are free to impose greater or additional restrictions on police conduct than are required by the federal constitution if its citizens either by their Constitution or their Legislature so determine. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967); Sibron v. New York, 392 U.S. 40, 60-61, 88 S.Ct. 1889, 1901-1902, 20 L.Ed.2d 917 (1968). See also People v. Hoinville, 553 P.2d 777 (Colo.1976).

Thus appellant relies upon Article 14.04, Vernon’s Ann.C.C.P., which provides:

“Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.”

Unquestionably this state statute imposes greater restrictions on peace officers than does the federal constitution as interpreted by the United States Supreme Court.

Appellant urges first that there is no showing that the police officers involved could not have secured a warrant, and that there was no information conveyed to the officers that the appellant was about to escape. This, he contends, would prevent a warrantless arrest for a felony under Article 14.04, supra.

The record on the sole question presented to this court was not as well developed as it might have been. In Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974), it was written:

“The record relating to the search and seizure was not developed as well as it might have been, which always increases the burden upon the appellate court in passing on the grounds of error presented. Cf. Keah v. State, 508 S.W.2d 836 (Tex.Cr.App.1974).”

There was no evidence as to the lack of availability of magistrates or even the officer’s opinion that a warrant could not be obtained. The only evidence bearing upon the subject is the fact the “tip” was received on the evening of Saturday, November 22, 1975 and that about 11:10 p. m. a surveillance was set up. The time lapse between the “tip” and the surbeillance was not elicited. While normally magistrates may not be available on weekends at such hours, this was not established. Further, there was no showing that the officers had received information that appellant was about to escape. The only evidence bearing on escape was the fact that Officer Spriggs feared that when the appellant entered the cafe upon the approach of the patrol car the appellant would leave by the rear door.

We need not, however, determine whether the requirements of Article 14.04, supra, have been met.

Police officers are not required to shrug their shoulders and permit crime to occur or a criminal to escape. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970), cert. den. 400 U.S. 918, 91 S.Ct. 180, 27 L.Ed.2d 158. Circumstances short of probable cause for arrest may justify temporary detention for the purposes of investigation since an investigation is considered to be a lesser intrusion upon the personal security. Leighton v. State, 544 S.W.2d 394 (Tex.Cr.App.1976); Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976); Mann v. State, 525 S.W.2d 174 (Tex.Cr.App.1975); Hernandez v. State, 523 S.W.2d 410 (Tex.Cr.App.1975); Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975); Wood v. State, supra; Baity v. State, supra; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams, supra. The detention is justified if the law enforcement officer has specific, articulable facts, which in light of his experience and general knowledge, together with rational inferences from those facts would reasonably warrant the intrusion on the freedom of the citizen stopped for further investigation. Terry v. Ohio, supra; Ablon v. State, supra; Mann v. State, supra; Hernandez v. State, supra.

Reasonable cause for an investigative stop can be based on information supplied by another person as “the subtleties of the hearsay rule should not thwart an appropriate police response.” Adams v. Williams, supra.

Further, Terry v. Ohio, supra, teaches us that:

“Where a police officer observes unusual conduct which leads reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.”

In Terry the Court also wrote:

“The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.”

See also Cox v. State, 442 S.W.2d 696 (Tex.Cr.App.1969); Ablon v. State, supra.

In the instant case Officer Spriggs had received information from an informer, who had given information to the police in the past about narcotic violations and whom he considered reliable, that appellant had on his person heroin. The source of the informer’s information was his personal observation within the last 24 hours. He described how the heroin was packaged and stated he was familiar with heroin, etc. He stated the appellant could be located at the Yellow Cab Cafe. Spriggs had previously seen the appellant. Within five minutes after Spriggs and his fellow officers had set up a surveillance at the cafe appellant was observed walking toward the cafe. At this point it was clear that the informer’s report was not fabricated. When the appellant, while standing in the cafe’s doorway, appeared to observe a marked patrol car turn the corner, he immediately entered the cafe as if to avoid detection. At that point the officers moved. Spriggs went to the cafe’s rear door to prevent escape and the other officers entered the cafe. The appellant was detained inside the cafe and moved outside the cafe. There he asked why he was being detained and was told by Spriggs they had information he was in possession of heroin. At this news appellant stuck his hand in his right jacket pocket. Spriggs grabbed appellant’s hand for the officers’ “self-protection” and to prevent any narcotics from being removed and destroyed. A frisk followed which revealed a matchbox in the jacket pocket into which appellant had reached. It contained heroin in tinfoils. Upon discovery of this substance, the appellant was then searched, which search revealed other heroin, a syringe, needle, etc., on appellant’s person.

When the appellant entered the cafe, the officers had the specific, articulable facts which warranted an investigatory stop. The appellant was detained inside the cafe and moved outside the cafe as the defendant was moved from the yard to the squad car in Ablon v. State, supra, during an investigatory stop. When informed, upon his inquiry, that the officers had information he possessed heroin, the appellant reached into his jacket pocket. Clearly the officers were justified at this time in frisking the appellant for self-protection. The first heroin thus found was admissible as the result of a frisk of the jacket during an investigatory stop. Upon the discovery of heroin, circumstances had clearly ripened into probable cause for arrest and the officers had the right to search incident to that valid arrest, for the officers had witnessed a crime being committed in their presence. Article 14.01, Vernon’s Ann.C.C.P.; Jones v. State, 493 S.W.2d 933 (Tex.Cr.App.1973); Lerma v. State, 491 S.W.2d 152 (Tex.Cr.App.1973); Legall v. State, 463 S.W.2d 731 (Tex.Cr.App.1971). The search that followed the discovery of the first heroin revealed an ounce of heroin, a syringe, needle, etc. These items were admissible as a result of the search incident to the legal arrest.

We need not determine if under the circumstances the heroin and other items were also admissible under the Draper line of cases [Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959)]. See also Almendarez v. State, 460 S.W.2d 921 (Tex.Cr.App.1970); Gonzales v. State, 467 S.W.2d 454 (Tex.Cr.App.1971); Gomez v. State, 470 S.W.2d 871 (Tex.Cr.App.1971); Mendoza v. State, 492 S.W.2d 489 (Tex.Cr.App.1973). Likewise, we need not determine if Article 14.03, Vernon’s Ann.C.C.P., as amended, was also applicable.

The ground of error is overruled.

The judgment is affirmed.

ROBERTS and ODOM, JJ., concur in the results.

PHILLIPS, Judge,

dissenting.

Though it is recognized that the federal constitution permits a public arrest upon probable cause without proof of exigent circumstances, U. S. v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598, the State of Texas has the power to require by law the existence of exigency as a prerequisite to arrest upon representations of a credible person. Olson v. State, Tex.Cr.App., 484 S.W.2d 756; Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570. The Legislature of Texas has elected to establish said requirement by its enactment of Art. 14.04, V.A.C.C.P., which provides as follows:

“Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.”

There was no evidence as to lack of availability of magistrates or even the officer’s opinion that a warrant could not be obtained. The only evidence bearing upon the subject is the fact that a tip from a credible informant that appellant had heroin on his person packaged in tinfoil observed by informant within the last 24 hours was received on the evening of Saturday, November 22, 1975, and that about 11:10 p. m. a surveillance was set up. The time lapse between the “tip” and the surveillance was not elicited. While normally magistrates may not be available on weekends at such hours, this was not established. Further, there was no showing that the officers had received information that appellant was about to escape. The only evidence bearing on escape was the fact that Officer Spriggs feared that when he entered the cafe upon approach of the patrol car the appellant would leave by the rear door.

Obviously, the State clearly failed to show that the offender was about to escape so that there was no time to procure a warrant and therefore the State failed to meet the requirements of Art. 14.04, supra, for a lawful seizure of appellant’s person.

Art. 14.03, V.A.C.C.P., as amended, provides as follows:

“Any peace officer may arrest, without warrant, persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws.”

To justify a warrantless arrest under said statute, there must be a showing that (1) appellant was found in a suspicious place and (2) that he was found under circumstances which reasonably show him to have been guilty of some felony or breach of the peace or threatening or about to commit some offense. Neither of said requirements is shown by the record in this case.

The majority contends that the arrest and incidental search of appellant was justified under the doctrine of “temporary detention for the purposes of investigation” as pronounced in Terry v. Ohio, 396 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612; Ablon v. State, Tex.Cr.App., 537 S.W.2d 267; Leighton v. State, Tex.Cr.App., 544 S.W.2d 394. The purpose of a temporary detention is to permit a reasonably motivated officer to procure information or an explanation as to suspicious circumstances or conduct without the full seizure of the person. This may be done when the existing information of the officer falls short of probable cause to effect an arrest or full seizure of one’s person. Terry v. Ohio, supra; Adams v. Williams, supra; and Ablon v. State, supra. The purpose of the seizure in this case is not shown to have been a temporary detention to procure information or an explanation as to suspicious conduct or circumstances which had been brought to the attention of the officers. The seizure herein was simply for the purpose of determining whether the appellant was in possession of contraband in accordance with the representation of a purportedly credible person. This being so, Art. 14.04, supra, prohibits said warrantless seizure of appellant’s person since there was no showing that appellant was about to escape so there was no time to procure a warrant. Lowery v. State, Tex.Cr.App., 499 S.W.2d 160; Honeycutt v. State, Tex.Cr.App., 499 S.W.2d 662. Said Art. 14.04, supra, contemplates that we look to the time of the making of the representation to the peace officer by a credible person and determine if at that time the offender was then about to escape so that there was no time to procure a warrant. The record here merely shows that the representation was made to the officer sometime on the evening of November 22, 1975, and that at about 11:10 p. m. a surveillance was set up at a cafe where appellant was expected to be. Said seizure of appellant’s person having been unlawful, the subsequent search of his person, which was the actual purpose of the arrest, cannot be justified by the unrealistic and thin argument that as he was being escorted out of a public place wherein the officers had seized his person he reached one hand into his jacket pocket. Actually, the reactions through fear, humiliation and indignancy of an innocent person upon being seized in a public place by officers would be reasonably expected to be more abnormal, unusual and unexplainable than that of the hardened criminal. Said arrest and subsequent search were unlawful and admission of the evidence obtained thereby is specifically prohibited by Art. 38.23, V.A.C.C.P.

For the reasons stated, I respectfully dissent.

      . Article 14.03, supra, provides:
      “Any peace officer may arrest, without warrant, persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws.”


source: Caselaw Access Project

author: BROWN, Commissioner.

license: Public Domain

text:
    James Leonard CAUGHORN, Appellant, v. The STATE of Texas, Appellee.
    Nos. 54068, 54069.
    Court of Criminal Appeals of Texas.
    April 13, 1977.
    Kenneth L. Sanders, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and H. E. Bert Graham, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

These are appeals from the revocation of probation in two cases of burglary of a habitation wherein the trial court imposed cumulative sentences.

Appellant’s sole contention is that the court erred in cumulating the sentences in these causes.

On December 16, 1974 an indictment was returned charging appellant with burglary of the habitation of Claude Naegeli on October 28,1974. This was assigned cause No. 221,781 by the 179th District Court of Harris County (Our cause No. 54,068). Thereafter, on January 8, 1975 an indictment was returned into the 183rd District Court of Harris County charging appellant with burglary of the habitation of Harry Charles Calvin on October 29, 1974. This was assigned cause No. 222,412 (Our cause No. 54,069).

On August 18, 1975, appellant entered pleas of guilty to both causes in the 177th District Court of Harris County. Appellant received punishment of ten years in each case and was granted probation in each cause. On February 20,1976 the State filed an amended motion to revoke probation in these two causes alleging as violations burglary of a habitation by appellant on December 15, 1975 and burglary of a habitation by appellant on December 17, 1975. These motions to revoke were heard on March 8,1976 and the court revoked probation in each case. The court then sentenced appellant to not less than five years nor more than ten years in cause No. 221,781. He then sentenced appellant to not less than five years nor more than ten years in cause No. 222,412, said sentence to begin after the sentence in No. 221,781 shall have ceased to operate. Through obvious clerical error, the sentence filed in No. 222,412 failed to contain the cumulation as pronounced by the court when the sentence was imposed. Thereafter, on September 3, 1976 a sentence nunc pro tunc was entered reciting that through error the cumulation was omitted and providing that the sentence in said cause shall begin when the sentence in No. 221,781 shall have ceased to operate.

It is appellant’s position that V.T.C.A. Penal Code, Sec. 3.03, prohibits the cumulation of his sentences. This section is as follows:

“When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single action, sentence for each offense for which he has been found guilty shall be pronounced. Such sentences shall run concurrently.”

V.T.C.A. Penal Code defines “criminal episode” as follows:

“In this chapter, ‘criminal episode’ means the repeated commission of any one offense defined in title 7 of this code (Offenses Against Property).”

Appellant contends that since he was indicted in two cases involving offenses against property (burglary of a habitation) which were committed on successive days, such offenses constitute one criminal episode and that, therefore, the cumulation of his sentences is prohibited.

However, appellant by relying on V.T. C.A. Penal Code, Secs. 3.01 and 3.03, completely ignores the limitations contained within V.T.C.A. Penal Code, Sec. 3.02.

Chapter 3 of the Penal Code is entitled “Multiple Prosecutions.” This chapter for the first time in the history of Texas Criminal Jurisprudence permits more than one offense to be pleaded in the same charging instrument provided they arise out of the same criminal episode as defined above. Thus, several offenses may be consolidated in one indictment or information. Also, an innovation under the new Penal Code is the right of the State to join several charging instruments into a single criminal action if they arise out of the same criminal episode. However, in order to accomplish this, the State must file written notice of this action not less than 30 days prior to trial. No such notice was filed in these causes. Accordingly, even though appellant pleaded guilty to two indictments charging similar offenses, this did not constitute a single criminal action because the State had not filed the written notice necessary to achieve such results. Since these causes did not constitute one criminal action under Sec. 3.02, supra, the prohibition against the cumulation of sentences provided in Sec. 3.03, supra, does not apply.

The judgments are affirmed.

Opinion approved by the Court.

      . V.T.C.A. Penal Code, Sec. 3.02. Consolidation and Joinder of Prosecutions

      “(a) A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode.
      “(b) When a single criminal action is based on more than one charging instrument within the jurisdiction of the trial court, the state shall file written notice of the action not less than 30 days prior to the trial.
      “(c) If a judgment of guilt is reversed, set aside, or vacated, and a new trial ordered, the state may not prosecute in a single criminal action in the new trial any offense not joined in the former prosecution unless evidence to establish probable guilt for that offense was not known to the appropriate prosecuting official at the time the first prosecution commenced.”


author: ONION, Presiding Judge.

text:
    Ex parte Sheldon QUINN.
    No. 54125.
    Court of Criminal Appeals of Texas.
    April 13, 1977.
    Mario J. Martinez and H. Davidson Smith, III, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., and Douglas Gelo, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order entered in the 205th District Court of El Paso County in a habeas corpus proceeding remanding the appellant to custody for extradition to the State of Indiana on the charge of theft of a 1969 Cadillac automobile of the value of $2,300.00 in violation of Burns Indiana Statutes, § 10-3030.

At the habeas corpus hearing the State introduced the Executive Warrant of the Governor of Texas and the supporting papers from Indiana. The appellant offered no evidence.

First, we shall consider appellant’s contention that he was denied bail pending appeal after the habeas corpus hearing. It might be argued that if this appeal is affirmed, which it is, the question of bail is moot. Whatever may be the validity of such argument, it is observed that to raise such question it would be necessary for any appellant in an appeal from a habeas corpus proceeding ordering extradition where bail had been denied pending appeal to bring still another habeas corpus proceeding and bring an appeal from the continued denial of bail and hope that the second appeal would reach this court and be passed upon before the first appeal. Further, since the trial bench has been relying upon an Attorney General’s opinion with which this court does not agree for the denial of bail pending appeal in extradition cases, the matter should be considered.

It is further observed that the appellant has fifteen days in which to file his motion for leave to file his motion for rehearing, and this appeal is not final until the mandate of this court is issued.

We observe that it was held in early cases of Ex parte Erwin, 7 Tex.App. 288 (1879), and Hobbs v. State, 32 Tex.Cr.R. 312, 22 S.W. 1035 (1893), that where an individual is held under and by virtue of an extradition warrant from the Governor, he is not entitled to bail.

In 1927 the Legislature enacted Article 857a, Vernon’s Ann.C.C.P., which provided:

“In any habeas corpus proceeding in any court or before any judge in this State where the defendant is remanded to the custody of an officer and an appeal is taken to an Appellate Court, the defendant shall be allowed bail by the court or judge so remanding the defendant, except in capital cases where the proof is evident. The fact that such defendant is released on bail shall not be ground for a dismissal of the appeal except in capital cases where the proof is evident.” (Acts 1927, 40th Leg., p. 66, ch. 43, Sec. 1.) (Emphasis supplied.)

In Ex parte Anderson, 133 Tex.Cr.R. 589, 113 S.W.2d 551 (1938), it was noted that the Erwin and Hobbs cases were decided when no statute such as Article 857a, supra, was in effect. The court then wrote:

“In those states having no statute permitting bail upon appeal in habeas corpus cases it has been quite uniformly held that bail should not be allowed where the party complaining was held upon extradition demand. In other states by statute bail is allowed upon appeal in habeas corpus cases except where the party has been remanded in extradition proceedings. But in those states having a statute similar to that passed by the 40th Legislature bail is allowed upon appeal even in extradition cases .
“Our own Legislature not having excepted extradition cases from the operation of the statute passed in 1927 permitting bail upon appeal where one has been remanded upon habeas corpus hearing, we feel compelled to give it application in the present instance.” See and cf. Ex parte Hawthorne, 151 Tex.Cr.R. 283, 207 S.W.2d 408 (1948). Cf. Ex parte Gallogly, 138 Tex.Cr.R. 115, 134 S.W.2d 666 (1939), holding Article 857a, supra, inapplicable to habeas corpus proceedings involving extradition for escaped felon from Georgia whose convictions were there final.

In 1951 Texas adopted the Uniform Criminal Extradition Act which became Article 1008a, Vernon’s Ann.C.C.P. § 16 thereof provided:

“Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment under the laws of the State in which it was committed, a judge or magistrate in this State may admit the person arrested to bail by bond, with sufficient sureties and in such sum as he deems proper, conditioned for his appearance before him at a time specified in such bond; and for his surrender, to be arrested upon the warrant of the Governor of this State.”

The statute made no provision regarding bail after the Governor’s Warrant is issued. The act was silent as to such matter, and there was no express repeal of Article 857a, supra, which remained on the statute books. One statute expressly provided for bail pending appeal in any habeas corpus case except as otherwise provided, and the other statute was silent as to bail after the issuance of the Governor’s Warrant. We observe no conflict between such statutes and know of no decision construing the statutes to be in conflict.

In the 1965 Code of Criminal Procedure, Article 1008a, supra, was brought forward as Article 51.13, Vernon’s Ann.C.C.P., with § 16 unchanged and with the act remaining silent as to bail after the issuance of the Governor’s Warrant. Article 857a, supra, was brought forward unchanged as Article 44.35, Vernon’s Ann.C.C.P., indicating a legislative intent that in any habeas corpus proceedings, except as limited in the statute, the petitioner was entitled to bail pending appeal.

It is true that in some states which have adopted the Uniform Criminal Extradition Act the courts have construed it to prohibit bail in extradition cases after the issuance of the Governor’s Warrant, including the situation where the prisoner has applied for habeas corpus or has appealed from a remand to custody following denial of habeas corpus relief. See Allen v. Wild, 249 Iowa 225, 86 N.W.2d 839 (1957); Buchanan v. State ex rel. Weiss, 166 So.2d 596, 597 (Fla.App.1964); State v. Second Judicial Dist. Ct., County of Washoe, 86 Nev. 531, 471 P.2d 224 (1970); Wayans v. Wolfe, 30 Conn. Sup. 60, 300 A.2d 44 (1972); State ex rel. Howard v. St. Joseph Superior Court, 262 Ind. 367, 316 N.E.2d 356 (1974); Deas v. Weinshienk, 533 P.2d 496 (Colo.1975). These cases seem to rely upon the omission in the act of any reference to bail after the issuance of the Governor’s Warrant. See Allen v. Wild, supra; State v. Second Judicial Dist. Ct., County of Washoe, supra. However, in none of these jurisdictions did there exist a statutory provision permitting bail on appeal in habeas corpus such as Article 44.35, supra.

In states where there is an express statute outside the Uniform Criminal Extradition Act providing for bail pending appeal, it has been held that such statute controls. See Ruther v. Sweeney, Ohio App., 75 Ohio L.Abst. 385, 137 N.E.2d 292 (1956). See also Application of Haney, 77 Idaho 166, 289 P.2d 945 (1955). In Ruther v. Sweeney, supra, the Court of Appeals of Ohio wrote:

“We are not unmindful of the authority to the contrary to be found in the annotation in 63 A.L.R. 1460 and also in 143 A.L.R. 1354. These cases, however, for the most part, are decided against the right to bail because of the absence of statutory authority, and where it was claimed the right to release on bail was to be found in the inherent power of the court in the administration of justice. These cases are not in point. In every case where the right to release the relator on bail in an appeal from a denial of release in a habeas corpus case was based on statutory authority the holdings are in complete accord with our conclusions in this case.”

We conclude that the Legislature having enacted Article 44.35, supra, as part of the same Code of Criminal Procedure as Article 51.13, supra, and not having excepted extradition cases therefrom, the provisions of Article 44.35, supra, control except in capital cases where the proof is evident. We hold the court erred in not setting bail pending appeal.

The court obviously relied upon Attorney General’s Opinion H-803 (1976), which was cited to the court and which held that a person held for extradition may not be admitted to bail after issuance of the Governor’s Warrant pending determination of an appeal from a remand to custody. For reasons stated, we do not agree with such opinion.

As stated in Ex parte Anderson, supra, “Whether it would have been more expedient if the Legislature had exempted from the operation of the statute those held under extradition warrant is a matter for the legislative branch of the government and not the courts.”

Appellant also complains that the Indiana information found in the supporting papers is defective because it was executed before a notary public and does not comply with the laws of Texas, to-wit, Article 21.21(9), which requires that an information “must be signed by the District or County Attorney, officially.” He argues that in absence of proof to the contrary it is presumed that the laws of Indiana are the same as Texas. Ex parte Posey, 453 S. W.2d 833, 834 (Tex.Cr.App.1970); Ex parte Krarup, 422 S.W.2d 173, 174 (Tex.Cr.App.1967). While the information was signed by the complaining witness and sworn to by the complaining witness before a notary public, it is also signed by the deputy prosecuting attorney. While the signature and oath of the complaining witness are not required in Texas on an information, it can be disregarded as surplusage since it is signed by the prosecuting official. Appellant’s contention is without merit.

Next, appellant complains that the affidavit used by the State of Indiana was defective as it was sworn to before a notary public and not a magistrate as required by law. It is true that the Indiana affidavit was sworn to by the complaining witness before a notary public.

In Ex parte Rosenthal, 515 S.W.2d 114 (Tex.Cr.App.1974), this court in interpreting Article 51.13(3), Vernon’s Ann.C. C.P., held that a demand for extradition is sufficient where accompanied by either:

(1) copy of indictment, or
(2) information supported by affidavit, or
(3) copy of an affidavit made before a magistrate, together with a copy of a warrant which was issued thereupon, or
(4) copy of a judgment of conviction.

See Ex parte Peairs, 162 Tex.Cr.R. 243, 283 S.W.2d 755 (1955).

The instant case falls under method # 2 above. The Indiana information is supported by affidavit. Under such method, there is no requirement that the affidavit be made before a magistrate as in method # 3. Appellant’s contention is without merit.

Another of appellant’s grounds of error is somewhat confusing as to the real thrust of his contention. He urges the “Warrant used as a part of the State’s Exhibit number one does not comply with the requirements of Article 51.13, Sect. 7 of the Texas Code of Crim.Proe., the Uniform Fugitives from Justice Act, which states:

“ ‘If the Governor decides that the demand should be complied with, he shall sign a warrant of arrest . . . The warrant must substantially cite the facts necessary to the validity of the issuance.’ ”

He then argues that the warrant fails to comply with Article 15.02(3), Vernon’s Ann. C.C.P., that a warrant “must be signed by a magistrate, and his office be named in the body of the warrant or in connection with his signature.”

Under authorities and argument relative to this ground of error appellant argues, however, that the Indiana information found in the supporting papers was executed before a notary public and not before a magistrate and that the warrant issued thereon is invalid since in absence of any showing to the contrary it is presumed the law of Indiana is the same as Texas. Ex parte Krarup, supra; Ex parte Posey, supra.

Needless to say it is difficult to ascertain just what appellant contends. First, we observe that the provisions of Article 51.13, supra, relative to the Governor signing a warrant of arrest for the purpose of extradition is a special statute and controls over the requirements of Article 15.02(3), supra, that a warrant of arrest must be signed by a magistrate which is defined by Article 2.09, Vernon’s Ann.C. C.P., and which does not include the Governor. As to appellant’s other assertion, it is observed, as noted earlier, that while the information is signed and sworn to by the complaining witness before a notary public it is also signed by the prosecuting attorney and meets the requirements of a Texas information. The oath of the complaining witness is surplusage as far as the validity of the information is concerned. Any warrant issued thereon would not be invalid for the reason urged by appellant.

As earlier noted, the court erred in refusing to set bail for the appellant, but such failure does not call for the reversal of this judgment.

The judgment is affirmed.

ROBERTS, J., concurs in the result.

      . It is observed that an “Information Relative to Statutes of the State of Indiana” is also found in the record signed by the Prosecuting Attorney, 60th Judicial Circuit of Indiana.


author: DALLY, Commissioner.

text:
    Ex parte Harold Wayne DICKERSON.
    No. 54255.
    Court of Criminal Appeals of Texas.
    April 13, 1977.
    Phillip S. Brown, Lubbock, Court appointed, for appellant.

      Alton R. Griffin, Dist. Atty. and Sam Oatman, Asst. Crim. Dist. Atty., Lubbock, 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 an order of the trial court entered in a habeas corpus proceeding refusing to reduce bail pending trial. The appellant is purportedly charged by indictment with the offense of burglary, and he is incarcerated in the Lubbock County jail unable to make bond in the amount of $100,000.

In view of the record presented, we take cognizance of a matter of fundamental nature that was not raised in the trial court and which is not presented in the briefs on appeal. Ordinarily, in this State, when there is a valid statute or ordinance under which a prosecution may be brought, habeas corpus is not available either prior to or after trial to test the sufficiency of the complaint, information, or indictment. Ex parte Jarvis, 109 Tex.Cr.R. 52, 3 S.W.2d 84 (1928); Ex parte Minor, 146 Tex.Cr.R. 159, 172 S.W.2d 347 (1943); Ex parte Meers, 129 Tex.Cr.R. 465, 88 S.W.2d 100 (1935); Ex parte Beverly, 34 Tex.Cr.R. 644, 31 S.W. 645 (1895); Ex parte Williford, 50 Tex.Cr.R. 417, 100 S.W. 919 (1907); Ex parte Webb, 113 S.W. 545 (Tex.Cr.App.1908); Ex parte Wolf, 55 Tex.Cr.R. 231, 115 S.W. 1192 (1909). However, if the pleading, on its face, shows that the offense charged is barred by limitations the complaint, information, or indictment is so fundamentally defective that the trial court does not have jurisdiction and habeas corpus relief should be granted. Ex parte Hoard, 63 Tex.Cr.R. 519, 140 S.W. 449 (1911); cf. Ex parte Stein, 61 Tex.Cr.R. 320, 135 S.W. 136 (1911); People v. McGee, 1 Cal.2d 611, 36 P.2d 378 (1934); Ex parte Vice, 5 Cal.App. 153, 89 P. 983 (1907); Ex parte Connolly, 16 Cal.App.2d 709, 61 P.2d 490 (1936).

The record fails to show that there is a charge pending against the appellant sufficient for the trial court to have jurisdiction of this prosecution. If the sheriff made a return on the writ of habeas corpus issued to him by the trial court showing the authority under which the appellant was being detained, as required by Articles 11.-29 and 11.30, V.A.C.C.P., the State did not introduce the return in evidence. Moreover, the State did not introduce in evidence either a complaint and warrant or an indictment and capias showing authority for detention of the appellant. The transcript does contain an indictment and a capias, but the indictment shows on its face that the prosecution for the offense with which the appellant is charged is barred by the statute of limitations. The indictment recites that the burglary was committed on or about January 29, 1971. The indictment was presented by the grand jury and filed by the clerk on February 12, 1976. The burglary was allegedly committed more than five years before the indictment was presented and filed. The statute of limitations for the offense of burglary is five years. Article 12.03, V.A.C.C.P., 1965; Article 12.01, V.A.C.C.P., effective January 1, 1974. Usually limitation is a matter which must be asserted as a defense in civil actions and in criminal prosecutions in some jurisdictions; however, our statute provides, as do those of many other jurisdictions, that an indictment must allege the offense was committed at a time not so remote that the prosecution of the offense is barred by limitations. Article 21.02(6), V.A.C.C.P. See Ex parte Jarvis, supra; Ex parte Hoard, supra.

Although the transcription of the court reporter’s notes made at the hearing indicates that the statute of limitations may have been tolled, this is not alleged in the indictment. The State may not rely on proof alone, but must allege facts which show that the statute of limitations has been tolled. See Donald v. State, 165 Tex.Cr.R. 252, 306 S.W.2d 360 (1957); Jackson v. State, 489 S.W.2d 565 (Tex.Cr.App.1972). Cf. Cooper v. State, 527 S.W.2d 563 (Tex.Cr.App.1975); see Article 12.07, V.A.C.C.P. (1965), and Article 12.05, V.A.C.C.P., effective January 1, 1974. There being no valid prosecution pending, no bail is required, and the question of reduction of bail is moot. Ex parte Spivey, 382 S.W.2d 491 (Tex.Cr.App.1964).

Habeas corpus relief is granted, and the prosecution under this indictment is ordered dismissed.

Opinion approved by the Court.

DOUGLAS, J., concurs in result.


author: ODOM, Judge. ONION, Presiding Judge,

text:
    Ex parte Gerald Eugene REAGAN.
    No. 54256.
    Court of Criminal Appeals of Texas.
    April 13, 1977.
    H. Thomas Hirsch, Odessa, for appellant.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from an order remanding appellant to custody for extradition to the State of California.

On this appeal appellant resists extradition on two grounds. First, he contends that the trial court’s order must be reversed because the Texas Governor’s Warrant and the supporting papers were not introduced into evidence and cannot support the trial court’s decision. Second, he contends that the authentication of the supporting papers by the executive authority of the State of California does not meet the requirements of Art. 51.13, Sec. 3, Y.A. C.C.P. Under the circumstances of this case, we overrule these contentions and affirm the judgment of the trial court.

The record reflects that the Texas Governor’s Warrant together with the supporting papers from the State of California were marked as State’s Exhibit No. 1. These papers were neither formally introduced nor admitted into evidence at the habeas corpus hearing. Appellant relies on Ex parte Sykes, 400 S.W.2d 568 (Tex.Cr.App.), wherein it is stated:

“The Executive Warrant of the Governor of Texas is not found in the record, though the order appealed from recites that it was considered.
“The same is true as to the requisition of the Governor of Arizona, and supporting documents.
“In the absence of the Executive Warrant or other evidence offered by the State, there was no showing that appellant was lawfully restrained.
“The order remanding appellant for extradition is reversed and the cause remanded.”

It is clear, however, that State’s Exhibit No. 1 was before the trial court and was considered by him prior to entry of his order remanding appellant to custody for extradition.

In Killion v. State, 503 S.W.2d 765 (Tex.Cr.App.1973), appellant entered pleas of guilty to two felony charges. On appeal he contended that the evidence was insufficient to support his convictions as required by Art. 1.15, V.A.C.C.P. The record in each case contained a written stipulation sworn to by appellant before a deputy district clerk in which the appellant fully acknowledged his guilt of each of the offenses charged. Although these written stipulations were neither formally introduced nor read into evidence, a reading of the records indicated that the court and the parties treated the stipulations as if they had been admitted into evidence. There we stated:

“. . . The appellant did not object when the trial court treated the written stipulations as if they had been admitted into evidence. Therefore, they may be considered in support of the judgment as if they had formally been admitted.” (Citations omitted)

We find Killion, supra, instructive here. Although the Texas Governor’s Warrant was neither formally introduced nor admitted into evidence, it was treated by the court and the parties as if it had been admitted. The warrant is in the record before us and we find it regular on its face. Under these circumstances, we decline to reverse the judgment of the trial court. See Ex parte Jackson, 470 S.W.2d 679 (Tex.Cr.App.1971), and compare Hokr v. State, 545 S.W.2d 463 (Tex.Cr.App.1977); Ex parte Hagler, 278 S.W.2d 143 (Tex.Cr.App.1955), is overruled to the extent of conflict.

Article 51.13, Sec. 3, supra, provides that no demand for extradition of a person charged with a crime in another state shall be recognized by the Governor of this State unless it is in writing and is accompanied by certain named documents which must be authenticated by the executive authority making the demand. As we understand appellant’s second contention, he does not claim that the supporting papers do not contain the requisite documents; rather, he contends that these documents have not been properly authenticated by the Governor of the State of California. We overrule this contention. The opening paragraph of the requisition of the Governor of the State of California states, in part:

“Whereas, it appears by the annexed application for requisition and copies of docket sheet reflecting guilty plea and supporting papers which I certify are authentic and duly authenticated in accordance with the laws of the State of California, . . .” (Emphasis added.)

The contention is without merit, because this certification, which was signed by the Governor and Secretary of State of California and which bears the Great Seal of that State, was sufficient to authenticate all the supporting papers. See and compare Ex parte Fontes, 475 S.W.2d 781 (Tex.Cr.App.1972); Ex parte Case, 485 S.W.2d 561 (Tex.Cr.App.1972); Ex parte Foss, 492 S.W.2d 552 (Tex.Cr.App.1973).

The judgment is affirmed.

ONION, Presiding Judge,

concurring.

I concur in the result reached as to ground of error # 1, but do not feel that the majority sufficiently states the facts and I find no reason to overrule Ex parte Hagler, 278 S.W.2d 143 (Tex.Cr.App.1955).

“In proceedings to challenge the legality of the arrest and detention of an accused under an executive warrant for his extradition, the state has the initial burden of showing that the arrest and detention are lawful.” 25 Tex.Jur.2d, Extradition, § 3, p. 180.

The Executive Warrant of the Governor of the asylum state would appear to be an indispensable part of the evidence in any such proceeding. Ex parte Hagler, supra. If such warrant is in the courtroom at the habeas corpus hearing, it should be introduced into evidence by the State. If it is not introduced, it must be presumed that it does not authorize extradition. Ex parte Hagler, supra; Ex parte Jackson, 470 S.W.2d 679, 681 (Tex.Cr.App.1971).

It is well established that when the Executive Warrant, regular on its face, is introduced into evidence a prima facie cause authorizing extradition is made out. By the same token, such prima facie case is not established until the Executive Warrant is introduced. Ex parte Hagler, supra; Ex parte Jackson, supra.

As noted in Hagler, “It is not the duty of appellant to question the validity of a warrant until it is offered in evidence.”

In Ex parte Sykes, 400 S.W.2d 568 (Tex.Cr.App.1966), the statement of facts, agreed to be true and correct, reflected only the testimony of the petitioner elicited by his own counsel. There was no Executive Warrant in the record though the order denying relief in the habeas corpus proceedings said the same was considered. The same was true as to the supporting papers. There the court wrote:

“In absence of the Executive Warrant or other evidence offered by the state, there was no showing that appellant was lawfully restrained.”

Ex parte Jackson, supra, was distinguished from Sykes in that in Jackson the Executive Warrant was in the record before this court while in Sykes it was not. Further, the agreed statement of facts in Jackson reflected that it related only to the testimony given at the habeas corpus hearing and did not purport to include all the evidence presented as in Sykes. It was noted that evidence is a broader term and includes testimony which is one species of evidence. In Jackson the court wrote:

“Since the Texas Governor’s Warrant, regular on its face, is in the record before us, and the trial judge’s order clearly indicated it was before him when he entered his order, we deem the record sufficient to reflect its introduction and to establish a prima facie case authorizing extradition.”

With this background the facts in the instant case should be observed.

At the habeas corpus hearing State’s Exhibit # 1, which included the Executive Warrant of the Texas Governor and the supporting papers from California, was marked for identification by the court reporter. The record then reflects:

“MR. WITHROW (Assistant District Attorney): Is based entirely upon State’s Exhibit No. 1, being the Governor’s Warrant from the State of California and from the State of Texas, and the accompanying Affidavits to that Warrant, giving rise to the issuance of that Warrant, and that it is now, by the admission of this document into evidence, a prima fa-cie case that the Governor of the State of Texas has issued his Warrant, and that he has looked at the accompanying papers, and they have been deemed sufficient to him for him to have issued that Warrant. And the Warrant therefore is proper to the fullest extent, and that it is now — the burden is upon the Defendant to rebut the prima facie case of the State, that the extradition and the Governor’s Warrant is valid and in full force and effect.
“THE COURT: All right. Mr. Hirsch, you are entitled to have a copy of all of the instruments be delivered to you or the Petitioner. And you are entitled to have a chance to look at it.
“Have you had a chance to look over it?”

Appellant’s counsel then assured the court he had had a chance to examine the papers as the District Attorney had given him a copy the preceding week. Then at some length appellant’s counsel objected to certain papers and there was a colloquy about other papers in the exhibit. Subsequently appellant’s counsel stipulated that appellant was “one and the same Gerald Eugene Regan as set out in the Governor’s Warrant, Governor Briscoe’s Warrant

Later the appellant testified and admitted he had seen the Texas Governor’s Warrant.

Thereafter the trial court denied relief.

While it does not appear that the prosecutor formally offered the Governor’s Warrant into evidence and obtained a formal ruling as to its admission, all the parties considered the same in evidence. The docket sheet reflects the court heard testimony pertaining to the validity of the Governor’s Warrant and expressly found the extradition packets to be in compliance .with Article 51.13, Vernon’s Ann.C.C.P. Further, similar findings were included in the court order denying relief.

The Governor’s Warrant is in the record before us as part of State’s Exhibit # 1.

This then, is a far cry from Ex parte Hagler, supra, where the State did not introduce the Governor’s Warrant nor any other evidence. In the instant case, while clearly no model for the introduction of exhibits into evidence, the prosecutor did offer State’s Exhibit # 1 into evidence, though the offer was not clearcut. He then assumed that the same was admitted into evidence. The appellant had been given a copy of the exhibit the week before and after the State’s offer a lengthy colloquy between the court and the parties occurred as to the various portions of the exhibit, including the Governor’s Warrant. Under all of the circumstances, this case can be distinguished from Ex parte Hagler, supra, and to sustain the judgment Hagler need not be overruled, and it should not.

For the reasons stated, I concur.

      . The burden was on the State to introduce the Texas Governor’s Warrant; however, the burden was on appellant to introduce the supporting papers. Ex parte Kronhaus, 410 S.W.2d 442 (Tex.Cr.App.1967).

      . In Hagler the petitioner did introduce the demand of the Oklahoma Governor, but nothing was introduced to show the Texas Governor had ever responded to this demand.


author: DIES, Chief Justice.

text:
    STATEWIDE HOMES, INC., Appellant, v. James W. EDWARDS, Appellee.
    No. 7890.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 16, 1976.
    Rehearing Denied Jan. 6, 1977.
    Michael D. Stewart, Houston, for appellant.
    Robert C. Barnett, Houston, for appellee.
   DIES, Chief Justice.

Plaintiff below, James W. Edwards, sued Statewide Homes, Inc., defendant below, alleging breach of warranty in the sale of a house from defendant to plaintiff. Plaintiff contended a defect in the house permitted water leakage into the house during rains. Trial was to the court without a jury, which resulted in judgment for plaintiff and from which Statewide brings this appeal. The parties will be referred to as they were below.

Defendant’s first point of error contends: “The trial court abused its discretion in refusing to allow Statewide a trial amendment pleading the Statute of Limitations.”

Plaintiff’s pleading alleged “that in the contract of sale the Defendant warranted that such home was not defective. . .”,

etc.

In the trial, plaintiff introduced a written warranty, but it turned out to be from a Bema Construction, Inc., which was not shown to have any connection with defendant. Defendant contends it was then it realized plaintiff’s case was not on a written warranty, and therefore the two-year and not the four-year Statute of Limitations would' apply. Defendant requested leave to file a trial amendment pleading the statute, but it was not allowed by the trial court.

A similar situation was confronted by our Supreme Court in Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605 (1948). We quote at length from p. 609 of the decision:

“The language of that rule, as applied to the facts of this case, convinces us that the trial court erred in striking the trial amendment. The rule directs that the court shall ‘freely’ allow an amendment if to do so will subserve the ‘presentation of the merits of the action’ and the other party fails to satisfy the court that the amendment will prejudice him in maintaining his action or defense on the merits. Here the respondents’ objections were that the petitioner had neglected for more than a year to file the amendment, that it was tendered after the evidence was closed and without previous notice, and that it was without merit or support in the evidence and would prevent equity being done. It will be observed that these objections carried neither suggestion nor hint that the respondents were in any manner surprised or unprepared to meet the issues raised by the amendment; nor did they suggest that, in this trial without a jury, the amendment would otherwise prejudice them in maintaining their action on the merits. The statement that ‘it was without merit’ and ‘would prevent equity being done’ amounted to no more than an opinion or conclusion of the pleader, the soundness of which may well be open to question. Under those circumstances, we think that both the spirit and intent of Rule 66 required that the amendment be permitted. Illustrative cases supporting our holding are Butcher et ux. v. Tinkle et al., Tex.Civ.App., 183 S.W.2d 227, er. ref. W.M., and Brown et al. v. Jones et al., Tex.Civ.App., 134 S.W.2d 850. Rule 66, supra, with minor differences, is the same as Federal Rules of Civil Procedure, rule 15(b), 28 U.S.C.A., which has been applied like we have applied Rule 66 here, in Coblentz v. Sparks et al., D.C., 35 F.Supp. 605, and Overfield v. Pennroad Corp. et al., D.C., 39 F.Supp. 482.”

We agree with the trial judge that plaintiff’s petition does not specify whether the warranty sued on was oral or written; however, the language “in the contract of sale the Defendant warranted”, etc. to us more nearly connotates a written contract rather than an oral one.

Plaintiff says our case is distinguishable from Vermillion because there was no surprise in Vermillion, and he (plaintiff) was surprised when defendant offered the trial amendment pleading limitations.

Plaintiff was certainly aware that the written warranty he introduced was from “Berna Construction, Inc.” and if he were unable to connect by proof that warranty with defendant Statewide (which he did not do), his (plaintiff’s) cause of action would be for breach of an oral warranty, which would involve the two-year Statute of Limitations. Plaintiff can hardly claim surprise then when defendant sought leave to plead it.

Defendant Statewide’s first point is sustained, and this case is remanded for a new trial.

REVERSED and REMANDED.

STEPHENSON, J., not participating.


text:
    William Carey CRUTCHER, a/k/a Carey Crutcher, Appellant, v. LIBERTY BANK, Appellee.
    No. 7891.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 10, 1977.

      Vernon E. Fewell, Robert M. Davant, Houston, for appellant.
    C. F. Jordan, Jr., Houston, for appellee.
   DIES, Chief Justice.

Defendant below, William Carey Crutch-er, appeals from the granting of a summary judgment for plaintiff, Liberty Bank. Plaintiff bank sued defendant to enforce his liability as principal debtor on a promissory note. The evidence before the court was comprised of the pleadings, defendant’s amended motion for summary judgment supported by the affidavit of the bank’s president, and a number of uncertified documents (alleged to be copies of bank records and a series of promissory notes including the one at issue). We shall speak of the parties as they appeared in the trial court.

Defendant Crutcher contends that the trial court erred in granting summary judgment since the evidence offered in support thereof failed to rebut his verified defenses of lack of consideration, estoppel and fraud, and thus did not dispose of all genuine issues of material fact which would bar plaintiff’s recovery.

We begin our consideration of the issues presented on appeal with the proposition that the movant for summary judgment (here Liberty Bank) has the burden of establishing the nonexistence of any genuine issue of material fact and that it is entitled to judgment as a matter of law. Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540, 542 (Tex.1971); Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970). While Tex.R. Civ.P. 166 — A provides for the elimination of patently unmeritorious claims or untenable defenses, the rule is not intended to deprive a litigant of his right to a full hearing on the merits as to any real issue of fact. In re Price’s Estate, 375 S.W.2d 900, 904 (Tex.1964); Hill v. Highlands Insurance Company, 433 S.W.2d 247, 249 (Tex.Civ.App.—Houston [1st Dist.] 1968, writ ref’d n. r. e.); Robbins v. Maryland American General Ins. Co., 472 S.W.2d 203, 206 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.). Moreover, in order to secure a summary judgment, a party must comply with all of the terms of Rule 166—A. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400 (1958); Axcell v. Phillips, 473 S.W.2d 554, 560 (Tex.Civ.App.—Houston [1st Dist.] 1971, writ ref’d n. r. e.).

Plaintiff bank’s pleadings, motion and evidence, taken alone and without objection, established a prima facie case which would entitle it to summary judgment. As was explained by Chief Justice Calvert in “Moore" Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934, 936-937 (Tex.1972):

“In this situation we hold that the Gibbs rule did not impose the burden on the defendants to negative ‘Moore’ Burger’s defensive plea; rather, the burden was on ‘Moore’ Burger [Crutcher], if it wished to avoid the granting of summary judgment against it, to adduce evidence raising a fact issue concerning its promissory estoppel [fraud] defense.”

See also, Torres v. Western Casualty and Surety Company, 457 S.W.2d 50, 53 (Tex.1970); Whittenburg v. Cessna Finance Corp., 536 S.W.2d 444, 445 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n. r. e.).

When the hearing on plaintiff’s motion for summary judgment was held, defendant’s verified first amended answer and cross-action were the only instruments on file for defendant in this cause. The facts set out in the pleadings were of such nature and specificity that had they been contained in an affidavit, at the least a genuine issue of material fact would have been raised as to defendant Crutcher’s defense of fraud. See Viracola v. Dallas International Bank, 508 S.W.2d 472, 474 (Tex.Civ.App.—Waco 1974, writ ref’d n. r. e.), in which the court reversed the granting of a summary judgment and remanded the cause for trial on the grounds that fraud in the inducement is a good defense to a suit on a note between original parties and that the debtor had set out sufficient facts in his affidavit opposing the motion for summary judgment to raise a fact issue as to fraud. See also, Costello v. Sample, 470 S.W.2d 446, 448 (Tex.Civ.App.—Waco 1971, writ ref’d n. r. e.).

The sworn pleadings of defendant Crutcher are insufficient, standing alone, however, to place in issue the question of whether or not the note was fraudulently induced, etc.

As was said by our Supreme Court in Texas Nat. Corp. v. United Systems International, Inc., 493 S.W.2d 738, 741 (Tex.1973), citing Hidalgo v. Surety Savings and Loan Association, supra:

“ ‘Pleadings simply outline the issues; they are not evidence even for summary judgment purposes. ... On balance, we are convinced that orderly judicial administration will be better served in the long run if we refuse to regard pleadings, even if sworn, as summary judgment evidence.’ ” (citations omitted)

Further, in Texas Nat. Corp., supra, 493 S.W.2d at 741, Chief Justice Greenhill, while discussing the Hidalgo Case above cited, continued as follows:

“Two justices concurred in the result in Hidalgo. They agreed that the statements in the pleadings about holder in due course were mere conclusions and were not adequate summary judgment proof. They were of the opinion, however, that facts sworn to in pleadings should be treated as any other affidavits filed in the case. The holding is otherwise.” (emphasis in original)

Being of the opinion that the decisions in both Hidalgo and Texas Nat. Corp., supra, are dispositive of the case at bar, we overrule the points of error advanced by defendant Crutcher and affirm the judgment of the trial court.

Judgment affirmed.

STEPHENSON, J., not participating.


author: STEPHENSON, Justice.

text:
    Leslie COLLINS et al., Appellants, v. MERCURY STEAMSHIP CO., INC., et al., Appellees.
    No. 7877.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 17, 1977.
    Rehearing Denied March 17, 1977.

      Roger S. McCabe, Beaumont, for appellants.
    W. G. Griggs, James L. Walker, Houston, for appellees.
   STEPHENSON, Justice.

Plaintiffs, all members of the crew of the vessel SS HELEN H, brought this suit for negligence under the Jones Act against Mercury Steamship Co., Inc. (Mercury), and also for common law negligence against Port Arthur Towing Company (PATCO). All injuries complained of were allegedly caused by ammonia gassing. Trial was by jury and judgment was rendered for Mercury on the issues, and for PATCO, disregarding certain jury findings.

Plaintiffs alleged no specific acts of negligence against PATCO, but relied upon res ipsa loquitur. The jury made these findings: On the occasion in question, PATCO’s barges and their fixtures and appurtenances were under its custody and control; ammonia fumes escaped from such barges; such ammonia would not have escaped but for negligence; such negligence was a proximate cause of plaintiffs’ injuries. Plaintiffs were damaged in the amounts set forth in a list.

PATCO’s motion to disregard the above findings and for judgment non obstante veredicto is based solely upon no evidence points. In passing upon plaintiffs’ points of error as to PATCO, we consider only the evidence favorable to the jury findings. Only plaintiffs James Williams, Lorenza Bush and Louis Brown appeal from this portion of the judgment.

The favorable evidence shows the following: On the occasion in question, PATCO owned two barges which were tied up at the docks of National Phosphate Corporation (National). The two barges carried a cargo of liquid ammonia which they were engaged in discharging into a pipeline maintained by National exclusively for ammonia. The pipeline ran from the dock about half a mile to a storage tank located on National’s property. The barges contain two refrigeration units. The ammonia must be cooled to a minus 28 degrees Fahrenheit temperature in order to keep it in a liquid state. When the temperature of the ammonia rises above minus 28 degrees Fahrenheit it vaporizes into a gas resembling steam. No other barges were located at the dock at that time. The log of the SS HELEN H contained the following: “2012 Port Arthur Towing Company barge Pateo 51 released excessive ammonia cloud into atmosphere while moored to dock about 200 feet on port side of vessel and being on the weather side of vessel.” Captain Petrulis of the HELEN H testified he could see the PATCO barge and that a huge white cloud was emanating from the area of the barge. Plaintiff Brown testified that immediately following the gassing incident he looked over the port side and saw ammonia vapors still seeping out and blowing toward the HELEN H. It appeared to him that the vapors were coming from a valve on top of the tank on the barge and near the middle of the barge. Plaintiff Bush testified the vapor was right over the barge and appeared to be coming from a pipe on the barge. Claude Crow, a PATCO employee, testified he was a tankerman for PATCO on the occasion in question, and that it was his responsibility, during discharge operations, to see that the equipment operated properly and to keep the temperature of the cargo at minus 28 degrees Fahrenheit. Such pumping operations consume from 12 to 36 hours, during which time he does not sleep, although he did not recall how long it took on this occasion.

The favorable evidence supporting specifically the question as to whether the negligent discharge of the ammonia fumes proximately caused the plaintiffs’ injuries is as follows: Plaintiff Williams testified he inhaled some of the ammonia fumes in the engine room from which he suffered chest pains, burning in his stomach, sore throat and eyes, and vomiting. His eyes continue to water and be sensitive to light, and he has suffered a loss of vision which requires the use of eyeglasses. He suffers headaches on a daily basis and he had none of these problems before the gassing incident. Plaintiff Brown testified he was playing cards in the mess hall when he smelled the ammonia gas. He suffered weakness, burning and strain with his eyes, difficulty with breathing and spitting and coughing.

Plaintiff Bush testified as follows: He was also playing cards in the mess hall when he smelled an odor and began to sneeze, cough and gag. He suffered burning and watering of the eyes, burning in the stomach, and regular headaches for the next six weeks following the ammonia gassing. The burning in the stomach has continued, a sensation he did not have before this incident.

The foregoing evidence supported the jury findings and it was error for the trial court to disregard them and grant the judgment for PATCO non obstante veredic-to. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952); Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 550 (1962); and Leonard v. Texaco, Inc., 422 S.W.2d 160, 165 (Tex.1967).

Plaintiffs’ first three points of error as to Mercury complain about action of the trial court in submitting “proximate cause” in its charge concerning this defendant.

This jury found that there was a failure to sound the general alarm on the occasion in question, and that such failure was negligence. Then this jury declined to find that such negligence was the proximate cause of any injuries to any of the plaintiffs. Proximate cause was defined as follows:

‘“PROXIMATE CAUSE’ means that cause which, in a natural and continuous sequence, unbroken by any new and independent cause, produces an event, and without which cause such event would not have occurred; and in order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.”

These points are sustained.

The Jones Act, which is 46 U.S.C.A., § 688, reads in part as follows:

“Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; . . . ”

The courts have consistently held that the reference in the Jones Act to the statutes of the United States pertaining to railroad employees is a reference to the Federal Employers’ Liability Act. The Federal Employers’ Liability Act, which is 45 U.S.C.A., § 51, provides in part:

“Every common carrier by railroad shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce . . . for such injury resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier. . . . ”

It is noted that there is no reference to cause in fact or foreseeability, but requires the injury to be one “resulting in whole or in part” from the negligence.

In actions under the Federal Employers’ Liability Act, the Supreme Court of the United States in Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 507, 77 S.Ct. 443, 449, 1 L.Ed.2d 493, 500 (1957), has held:

“The employer is stripped of his common-law defenses and for practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit. The burden of the employee is met, and the obligation of the employer to pay damages arises, when there is proof, even though entirely circumstantial, from which the jury may with reason make that inference.”

The Dallas Court of Civil Appeals observed that “[t]he Congress has seen fit by statute to supplant the common-law duty of railroads to employees by the more drastic duty of the ‘In-whole-or-in-part’ causation concept” in Missouri-Kansas-Texas RR. Co. v. Shelton, 383 S.W.2d 842 (Tex.Civ.App.—Dallas 1964, writ ref. n.r.e.). See also, Horn v. Atchison, Topeka and Santa Fe Railway Co., 519 S.W.2d 894, 896 (Tex.Civ.App.—Beaumont 1975, no writ).

The precise question before this court arose in Page v. St. Louis Southwestern Railway Company, 312 F.2d 84, 92 (5th Cir.1963), 98 A.L.R.2d 639 (1964). This is a F.E.L.A. case in which the trial court submitted proximate cause as to defendant’s negligence, with a definition which included cause in fact and proximate cause. The Circuit Court found such form of submission to be erroneous because the instruction on proximate cause unduly restricted the jury in the exercise of its functions. See also, Brown & Root, Inc. v. Wade, 510 S.W.2d 408 (Tex.Civ.App.—Houston [14th Dist.] 1974, writ ref’d n.r.e.), which cites 98 A.L.R.2d 677, the annotation following the Page Case, supra.

We have not been cited a Texas case directly in point nor have we been referred to a case which holds specifically that the trial court should not use the term “proximate cause” in its charge when dealing with the defendant. However, that result is inescapable if we are to follow the Supreme Court of the United States and other courts cited above.

We now hold that it was error for the trial court to instruct the jury, in effect, in reference to the causation issue that plaintiffs’ burden was to prove defendants’ negligence must be a proximate cause of plaintiffs’ injuries. The definition given by the trial court included both “cause in fact” and “foreseeability”, neither of which are required under the F.E.L.A. statutes. We think it is now clear that the plaintiffs’ burden, in either a F.E.L.A. or Jones Act case, is to prove only that plaintiffs’ injuries resulted in whole or in part from defendants’ negligence.

This jury found Mercury guilty of negligence in failing to sound the general alarm on the occasion in question. From a study of the record as a whole, we have come to the conclusion that the error of the trial court, in requiring this jury to find this incident would not have occurred but for the negligence of Mercury, and in requiring the jury to find that Mercury should have foreseen this or a similar event, is reversible error. These points of error are sustained.

The judgment of the trial court is reversed and rendered as to defendant PAT-CO, that plaintiff Williams recover $5,000 and that plaintiffs Bush and Brown recover $500 each from PATCO. The judgment as to Mercury is reversed and remanded for trial as to all plaintiffs except Grey Little who did not appeal.

REVERSED and RENDERED in part, and REVERSED and REMANDED in part.


author: BISSETT, Justice.

text:
    Louise BILEK, Appellant, v. Julius TUPA, Sr., Appellee.
    No. 1138.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 28, 1977.
    Rehearing Denied April 14, 1977.

      J. Leonard Gotsdiner, Ranseler 0. Wyatt, Houston, for appellant.
    James A. Bouligny, El Campo, for appel-lee.
   OPINION

BISSETT, Justice.

The primary issues in this case, as disclosed by the points of error, are whether a certain Certificate of Deposit is community property of a decedent and his surviving wife or separate property of the wife, and whether a penalty should be assessed against an independent executor for an alleged failure to deliver certain property to the wife of the decedent.

The will of John J. Bilek, was duly submitted to probate on October 11, 1974 by the County Court of Wharton County, Texas, sitting in probate, hereinafter referred to as the “probate court”. The proceedings in the estate bear the Number 7500, and are entitled “ESTATE OF JOHN J. BILEK, DECEASED. Julius Tupa, Sr. and Mrs. Annie Grissom were appointed co-executors in the will, without bond. Both qualified. The will directed that the administration of the decedent’s estate be independent of control by the probate court.

On January 6, 1976, Louise H. Bilek, the surviving wife and a named beneficiary under the will of John J. Bilek, Deceased, filed an application in the probate proceedings in the Bilek Estate, wherein she petitioned the probate court: 1) to “interpret” the will of John J. Bilek; 2) to award the entire estate to her; 3) to compel Julius Tupa, Sr. to file a “final accounting” in the estate; 4) to “adjudicate” that she is the sole owner of a Certificate of Deposit in the sum of $18,-324.09; 5) to “vest the fee simple title” in all property belonging to the Bilek Estate in her; and 6) to assess a penalty against Julius Tupa, Sr. because of his “failure to comply with Article 384 of the Probate Code”. A hearing was had before the probate court, no jury having been demanded. Judgment was rendered on May 19, 1976. The judgment, insofar as this appeal is concerned decreed:

(1)The Certificate of Deposit was community property of “John J. Bilek and Louise Bilek and as such one-half belongs to the Estate of John J. Bilek and one-half to Louise Bilek”.
(2) The will of the decedent “devised and bequeathed his entire estate in trust for the benefit of Louise Bilek, not subject to the management and control of Louise Bilek”.
(3) “That no penalty is assessed against Defendant, Julius J. Tupa, Sr.”
(4) “All relief not specifically granted herein is denied”.

Louise H. Bilek has perfected an appeal from that judgment to this Court. Her first point of error reads as follows:

“The Court erred in ruling all of the inventoried property was community property.”

The point is too vague and general to be considered by this Court because it does not direct this Court’s attention to any particular error. The effect of such a broad and general point is to simply assert that the trial court committed reversible error in the judgment that was rendered. The point does not comply with the requirement of Rule 418, T.R.C.P. See Blackmon & Associates, Inc. v. Palmer Building Supplies and Specialties, Inc., 463 S.W.2d 228 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d, n.r.e.); Pleasant Grove Builders, Inc. v. Phillips, 355 S.W.2d 818 (Tex.Civ.App.—Dallas 1962, writ ref’d, n.r.e.); Stolte v. Mack Financial Corporation, 457 S.W.2d 172 (Tex.Civ.App.—Texarkana 1970, no writ); Wagon Wheel Club, Inc. v. Restaurant Equipment & Supply Co., 410 S.W.2d 788 (Tex.Civ.App.—San Antonio 1967, no writ). However, even if we were to consider the point on some legal basis, the record compels us to overrule it.

Julius Tupa, Sr. filed an inventory, ap-praisement and list of claims in the Bilek Estate. It was duly approved by the probate court. The inventory classified all of the property owned by the Estate of John J. Bilek, Deceased, as community property. Included therein is the Certificate of Deposit for $18,324.09, which is mentioned in the judgment.

The probate court made and filed detailed findings of fact. Included therein are the following findings, which bear on the points raised in this appeal, to-wit:

“All funds of Louise Bilek ... on hand at the time of . marriage were commingled into the Community Estate.
All funds of Louise Bilek derived from the sale of all property owned before her marriage to John J. Bilek were commingled into Community Assets.”

The findings were not challenged in this appeal by a formal point of error.

Among the conclusions of law is the following:

“That all real and personal property owned by John J. Bilek and Louise Bilek at the time of the death of John J. Bilek was owned as community property.”

Property possessed by either spouse during or on dissolution of marriage is presumed to be community property. Tex. Family Code Ann. § 5.02 (1975). The presumption is rebuttable and so the burden imposed by statute is discharged when a spouse can trace and clearly identify the property claimed as separate property.

The mere proof that property when purchased during marriage was separate property does not discharge this burden where separate and community property have become so commingled as to defy re-segregation and identification. Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex.Sup.1965).

The trial court’s findings of fact not challenged on appeal are binding on the appellate court. McKenzie v. Carte, 385 S.W.2d 520, 530 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n.r.e.); Zapata County v. Llanos, 239 S.W.2d 699, 701 (Tex.Civ.App.—San Antonio 1951, writ ref’d n.r. e.); Griffin v. Hidalgo County, 185 S.W.2d 232 (Tex.Civ.App.—San Antonio 1945, writ ref’d w.o.m.); Cameron County Water Improvement Dist. No. 1 v. Cameron County Water Improvement Dist. No. 15, 106 S.W.2d 362, 363 (Tex.Civ.App.—San Antonio 1937, writ dism’d).

John J. Bilek and Louise H. Bilek were married during the 1930’s. There is no certainty as to the amount of property which Louise H. Bilek brought into the marriage. The only attempt at tracing is based upon vague assertions and rank conclusions. All that is established by competent evidence is that Louise H. Bilek brought several pieces of real estate into the marriage, some of which were later sold. There was apparently no attempt to segregate the money received from the sale of such lands from income received during marriage. It is further shown that the proceeds from the several sales of such lands were invested in properties bearing the names of both John J. Bilek and Louise H. Bilek. That fact also bolsters the findings and conclusions made by the trial judge.

The record in this case, when examined in its entirety, conclusively shows that the proceeds from the sales of the several tracts of land which were owned by Louise H. Bilek as her separate property became commingled with property that was unquestionably community. The record does not reveal that any of the property listed in the inventory of the Estate of John J. Bilek, Deceased, was the separate property of Louise H. Bilek.

We hold, after carefully considering all of the evidence in the record, that Louise H. Bilek, the appellant, has not met her burden of rebutting the presumption that all of the inventoried property of the Estate of John J. Bilek, Deceased, was community property. There is ample evidence of probative value to sustain the finding and conclusion of the trial court that all of the property owned by John J. Bilek and Louise H. Bilek at the time of his death was community property. The first point is overruled.

The second point of error reads:

“The Court erred in failing to order the property belonging to Louise Bilek delivered to her.”

The point, as phrased, assumes that Julius Tupa, Sr., in his capacity as independent co-executor of the Bilek Estate, was in possession of property that was owned outright by Louise H. Bilek. There is no basis in the record for such an assumption. Furthermore, the probate court, in its construction of the will, held that all of the decedent’s property was devised in trust for the benefit of Louise H. Bilek, “not subject to the management and control of Louise Bilek”. The will appointed persons other than Julius Tupa, Sr. to be testamentary trustees. Rudolf Bilek and Victor Janak, the persons named in the will as trustees, were not parties to the proceedings in the probate court which ensued as a result of the filing of the petition by Louise H. Bilek. Moreover, there is no evidence that Julius Tupa, Sr. had any separate property of Louise H. Bilek in his possession at any time.

Article IV and Article VIII of the probated will make different dispositions of the decedent’s estate — Article IV devised all decedent’s property to Louise H. Bilek absolutely, while Article VIII, by express reference, devised the property described in Article IV to named trustees in trust for Louise H. Bilek during her lifetime. Article IV is set out in full in a footnote to this opinion. The pertinent portions of Article VIII are also set out in a footnote. The second point of error does not, by the language used therein, directly attack the construction placed by the probate court on the will. However, under a liberal interpretation of the real complaint, as revealed by the statement and argument under the point, that action is attacked. Louise H. Bilek contends that the will devised all of the decedent’s property to her in fee simple absolute. In connection with that issue, the probate court concluded:

“That the trust provision of the Bilek Will prevails over the general devise and John J. Bilek does not purport to dispose of any but his own property. The Will, when construed as a whole, evidence the intent of John J. Bilek to vest his estate assets in trust for Louise Bilek. As such, Louise Bilek is not entitled to such estate, but the same is vested in the trustees for her benefit.”

The probate court had jurisdiction to construe the will of John J. Bilek, Deceased. Tex.Prob.Code Ann. § 5(d) (Supp.1976). A myriad of rules have been formulated for the court’s use in construing a will; however, the primary objective of these aids is to ascertain the real intent of the testator. Republic National Bank of Dallas v. Fredericks, 155 Tex. 79, 283 S.W.2d 39, 42-3 (1955).

In ascertaining the intent of the testator, the will must be considered as a whole, and all of its provisions must be looked to for the purpose of deciding the real intent of the testator. If this can be done from a consideration of the language used in the will in its entirety, then any particular paragraph, which, if considered alone, might provide the basis for a contrary intent, must yield to the intent which is manifested by a consideration of the entire document. Bergin v. Bergin, 159 Tex. 83, 315 S.W.2d 943 (1958).

Louise H. Bilek argues that Tex. Rev.Civ.Stat.Ann. art. 1291 (1962) compels a construction of the terms of the will in question so as to vest in her the greatest estate possible, and as such, operates in superiority over other rules of construction. We do not agree. The statute reads as follows:

“Every estate in lands which shall thereafter [hereafter] be granted, conveyed or devised to one although other words heretofore necessary at common law to transfer an estate in fee simple be not added, shall be deemed a fee simple, if a less estate be not limited by express words or do not appear to have been granted, conveyed or devised by construction or operation of law.”

Here, the devise in fee simple pursuant to Article IV was expressly limited by the language of Article VIII. The testator was aware of Article IV at the time he made the seemingly inconsistent disposition in Article VIII. The limiting language in the will, as revealed by the provisions of Article VIII, clearly shows that John J. Bilek did not intend to devise all of his property to his wife in fee simple. See Gilliam v. Mahon, 231 S.W. 712, 713-4 (Tex.Comm’n App. 1921, jdgmt. adopted); Darragh v. Barmore, 242 S.W. 714, 716 (Tex.Comm’n App. 1922, jdgmt. adopted). The probate court correctly construed the will as vesting in the trustees the legal title and possession of the estate properties. Under that construction, Louise H. Bilek was not entitled to a delivery of any property belonging to the Estate. The record is silent as to whether Rudolf Bilek and Victor Janak acted as trustees, and we will indulge in no presumption as to that matter. The second point is overruled.

Louise H. Bilek, in her third and final point, asserts:

“The Court erred in finding Julius Tupa Sr did nothing to justify a penalty in taking possession of the property of Louis Bilek and refusing to surrender same, or render an accounting as requested.”

The penalty which Louise H. Bilek seeks to impose on Julius Tupa, Sr. is that which is prescribed by Tex.Prob.Code Ann. § 384 (1956). She contends that the penalty therein provided should be assessed against him because of his failure to deliver the said Certificate of Deposit ($18,324.09) to her, and because of his failure to file an accounting.

Section 384 of the Code is penal in nature and must be strictly construed. Bevill v. Young, 167 S.W.2d 573, 574 (Tex.Civ.App.-Dallas 1942, writ ref’d w.o.m.). A review of the facts show that Section 384 is inapplicable in this case.

Louise H. Bilek, among other allegations in her petition, also alleged that Julius Tupa, Sr. “on . . . the 25 day of November 1975, . . . finally forwarded said Certificate ... to the petitioner’s attorney of record, subject to conditions . . . unacceptable to the petitioner, by virtue of the fact that . it provides that one half of said Certificate of Deposit belongs to the petitioner and the other half belongs to the estate of John J. Bilek, Sr. ...”

Under the will, as construed by the probate court (which construction is upheld by this Court), Louise H. Bilek was the lifetime beneficiary of a trust. She was not entitled to either the possession or control of the corpus of the trust properties. That right was in the trustees appointed by the Bilek will. Julius Tupa, Sr., as independent co-executor of the Estate, was duty bound to carry out the terms of the will and to administer the estate in accordance with the provisions of the Texas Probate Code. He was required to collect, preserve and protect the Estate’s properties, and to reduce to possession all properties belonging to the Bilek Estate. Freeman v. Banks, 91 S.W.2d 1078, 1080 (Tex.Civ.App.—Fort Worth 1936, writ ref’d). Under the terms of the will, as construed, Julius Tupa, Sr. was not in neglect of his duties in failing to relinquish full control of the said Certificate of Deposit to Louise H. Bilek. He did nothing to incur the statutory penalty since Louise H. Bilek, personally, was not entitled to the delivery of any property owned by the Bilek Estate.

Section 384 of the Code deals only with a situation where an “executor or administrator shall neglect to deliver to the person entitled thereto, when demanded, any portion of an estate ordered to be delivered”. Here, Julius Tupa, Sr. has never been “ordered” by a court to deliver any property belonging to the Bilek Estate to Louise H. Bilek.

Furthermore, Section 384 of the Code pertains only to the failure to deliver property to “the person entitled thereto”. The mere failure to file an accounting pursuant to Tex.Prob.Code Ann. § 149A (Supp. 1976) is not in violation of any provision of Section 384, and does not warrant the imposition of any penalty under that section of the Code.

The contention that a penalty should be assessed against Julius Tupa, Sr. for the reasons asserted by Louise H. Bilek has no merit. The third point is overruled.

The judgment of the trial court is AFFIRMED.

      . “ARTICLE IV
      It is my will and desire that all of the property, both real and personal, that I may die seized and possessed of, after the payment of my just debts, together with the expense incident to the probating of this Will, I give, devise, and bequeath unto my wife, LOUISE H. BILEK, to be her absolute property, if she so survives me.”

      . “ARTICLE VIII
      In the event that I shall predecease my wife, the said LOUISE H. BILEK, then I give, bequeath and devise such property mentioned in ARTICLE IV herein in trust unto RUDOLF BI-LEK and VICTOR JANAK as Trustees for the benefit of my said wife, upon and for the following purposes and conditions:
      A. Said Trustees shall take, hold and manage and administer said Trust Fund or Trust Estate upon and in accordance with the Texas Trust Act as the same now exists or as it may be amended from time to time, and shall have all the powers, rights, privileges and duties as provided for thereby with the following exceptions and modifications and none other, to-wit:
      ******
      B. In the event that either of the two above mentioned Trustees shall predecease me or otherwise fail to serve as Trustee, then in that event JULIUS TUPA, SR. shall serve in such Trustee’s capacity.”