author: ROBERTS, Judge. ONION, Presiding Judge, CLINTON, Judge, TOM G. DAVIS, Judge,

text:
    Oliver James WHITE, Appellant, v. The STATE of Texas, Appellee.
    Nos. 56129-56131.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 7, 1979.
    Joe F. Cannon, Houston, for appellant.

      Carol S. Vance, Dist. Atty., Alvin M. Titus and Jack Bodiford, Asst. Dist. Attys., Houston, for the State.
   OPINION

ROBERTS, Judge.

These are appeals from three convictions for the offense of aggravated rape. The appellant pleaded guilty, and after a trial before the court, the trial judge assessed the appellant’s punishment at fifty years’ imprisonment in each case.

The record reflects that at the time of the commission of these offenses the appellant was sixteen years of age. Accordingly, the Juvenile Court of Harris County had exclusive original jurisdiction over the appellant’s conduct. V.T.C.A., Family Code, Section 51.04.

However, on March 25,1976, the Juvenile Court, after a hearing, waived its jurisdiction and transferred the appellant to the 183rd District Court of Harris County for trial as an adult. See V.T.C.A., Family Code, Section 54.02(a) and (c).

On June 9,1976, the appellant was indicted for the offenses which form the basis of these appeals. The essential question, which we consider in the interests of justice, Article 40.09, Section 13, Vernon’s Ann.C.C.P., is whether the District Court ever acquired jurisdiction of the offenses.

V.T.C.A., Family Code, Section 54.02 sets forth the requisite procedures by which a juvenile court can waive its exclusive original jurisdiction and transfer a juvenile to the appropriate District Court or Criminal District Court. V.T.C.A., Family Code, Section 54.02(h) states:

“(h) If the juvenile court waives jurisdiction, it shall state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court, and transfer the child to the appropriate court for criminal proceedings. On transfer of the child for criminal proceedings, he shall be dealt with as an adult and in accordance with the Texas Code of Criminal Procedure, 1965. The transfer of custody is an arrest. The examining trial shall be conducted by the court to which the case was transferred, which may remand the child to the jurisdiction of the juvenile court.”

In Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App.1977), we dealt with the issue of whether a juvenile who had been transferred to a District Court for criminal proceedings has the right to an examining trial in the District Court before indictment, and if so, whether an indictment returned prior to an examining trial in the District Court is void. We there held that a juvenile who has been certified to District Court for criminal proceedings is entitled to an examining trial in the District Court to which he is transferred, that this examining trial “is a valuable right, for it furnishes another opportunity to have the criminal proceedings against the juvenile terminated and the jurisdiction of the juvenile court resumed,” Id. at 829, that “[t]he examining trial before the district court clearly appears to be the second vital step in determining whether a juvenile should be tried as an adult,” Id., and that the indictment, having been returned prior to an examining trial, was void. We therefore reversed the judgment since the District Court had no jurisdiction to proceed on a void indictment.

In the present case, the record is devoid of any evidence that the appellant was afforded an examining trial before the indictments were returned by the grand jury. Without a showing that the appellant was in fact afforded an examining trial before the indictments were returned by the grand jury, we are unable to ascertain whether the indictments are void and hence whether the District Court had jurisdiction over the offenses.

It is well established that under Article 16.01, Vernon’s Ann.C.C.P., a defendant is entitled to an examining trial before indictment. However, the return of an indictment terminates any right to an examining trial. Bullard v. State, 533 S.W.2d 812 (Tex.Cr.App.1976); Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971). Thus, a defendant is not always afforded an examining trial in a typical felony prosecution. In light of this, we refuse to apply a “presumption of regularity” to cases involving juvenile transfers; we will not presume that a juvenile has been afforded an examining trial in the District Court to which he is transferred. Rather, we require the record to affirmatively reflect that an examining trial has in fact been held in the District Court to which the juvenile is transferred. Cf. Matter of W. L. C., 562 S.W.2d 454 (Tex.1978). Moreover, since Article 40.09, Section 1, Vernon’s Ann.C.C.P., requires that the appellate record include a copy of “material docket entries made by the court,” and the court’s action in holding an examining trial should be noted on the docket sheet, Article 33.07, Vernon’s Ann.C. C.P., we hold that the record affirmatively reveals that no examining trial was in fact held.

Since the record reflects that no examining trial was held, it is clear that an examining trial could not have been held in the District Court prior to the return of the instant indictments. Under Ex parte Me-nefee, supra, it is clear that the indictments are void and that the 183rd District Court had no jurisdiction to proceed on the indictments.

The judgments are reversed and these indictments are ordered dismissed.

ONION, Presiding Judge,

concurring.

I concur in the result reached by the majority opinion authored for the court by Judge Roberts. In light of some of the things said by the dissent, I feel it necessary to review the history of the various enactments dealing with the discretionary transfer of a juvenile to be tried as an adult.

Turning the clock back only a few years, we find that the age of an accused at the time of the trial and not his age at the date of the alleged offense determined whether the accused was to be tried in juvenile or adult court. Northern v. State, 152 Tex. Cr.R. 569, 216 S.W.2d 192 (1948); Perry v. State, 171 Tex.Cr.R. 282, 350 S.W.2d 21 (1961). Thus, an accused, upon attaining the age of seventeen years, was properly tried in adult court for felony offenses committed prior to reaching that age. Dearing v. State, 151 Tex.Cr.R. 6, 204 S.W.2d 983 (1947); Roberts v. State, 153 Tex.Cr.R. 308, 219 S.W.2d 1016 (1949); Peterson v. State, 156 Tex.Cr.R. 105, 235 S.W.2d 138 (1950), cert. den. 341 U.S. 932, 71 S.Ct. 799, 95 L.Ed. 1361; Eiliott v. State, 168 Tex.Cr.R. 140, 324 S.W.2d 218 (1959); Wood v. State, 171 Tex.Cr.R. 307, 349 S.W.2d 605 (1961); Perry v. State, supra; Foster v. State, 400 S.W.2d 552 (Tex.Cr.App.1966).

As a result, a juvenile accused of a heinous felony offense was often declared a juvenile delinquent on the basis of the same offense, some other offense growing out of the same transaction, a revocation of a previous juvenile probation, etc., and committed to the Texas Youth Council, and later brought to trial as an adult when he reached seventeen, eighteen or nineteen years of age, and had matured in appearance, etc. See, e. g., Perry v. State, supra; Martinez v. State, 171 Tex.Cr.R. 443, 350 S.W.2d 929 (1961); Huitin v. State, 171 Tex.Cr.R. 425, 351 S.W.2d 248 (1961); Foster v. State, supra.

In Garza v. State, 369 S.W.2d 36 (Tex.Cr.App.1963), this court held that the conviction of Garza for murder violated the principle of fundamental fairness and constituted a deprivation of due process where prior to such conviction, which occurred after Garza reached the age of seventeen years, Garza had been adjudged a delinquent child on the basis of the same act of murder and held in custody as a delinquent child until his trial as an adult. Other cases where the convictions had been upheld in this court were set aside by the federal courts. Sawyer v. Hauck, 245 F.Supp. 55 (W.D.Texas, San Antonio Division, 1965); Huitin v. Beto, 396 F.2d 216 (5th Cir. 1968); Martinez v. Beto, 398 F.2d 542 (5th Cir. 1968).

It was obvious that a new approach involving fairness had to be adopted when the state judicial system was dealing with a juvenile who had allegedly committed a heinous felony offense. Thus, in 1965 the first discretionary transfer act was passed as an amendment to Article 2338-1 (See, e. g., Acts 1965, 59th Leg., p. 1256, ch. 577, § 3 [H.B. 444].). At first the transfer provisions were limited to the juveniles sixteen years old still within the jurisdiction of the juvenile court who were accused of a felony. The Legislature was, of course, concerned that other safeguards be installed before a juvenile be thrust into district court for trial as an adult. The pertinent parts of the 1965 enactment were set out in Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App.1977), and need not be requoted here. It provided a three step procedure commencing with a certification hearing in juvenile court, an examining trial in district court, and a return of the juvenile to the jurisdiction of the juvenile court if the grand jury refused to indict, in which case no further action by any grand jury could be taken against the juvenile with regard to the offense involved. At any of the three steps of the certification process the proceedings could be terminated and the matter handled solely in the juvenile court.

The said 1965 amendment provided that in regard to the examining trial aspect district judges would have the powers and duties conferred upon examining magistrates by the Code of Criminal Procedure. It further stated, “Provided that upon hearing the District Judge shall make an order committing the child to jail, discharging him, admitting him to bail, or remanding him to the custody of the Juvenile Court as the law and facts of the case may require.”

The amendment was widely acclaimed as removing the old injustice and providing that the juvenile could be tried willy-nilly as an adult in view of the three step procedure enacted as safeguards.

In Billings, “The New Juvenile Delinquent Law,” 31 Tex.Bar Journal 203, 242, 243, the author in discussing the amendment wrote:

“The Juvenile Court may, instead of retaining jurisdiction decide to transfer the child to the District or Criminal District Court for criminal proceedings. This court, however, may disagree with the Juvenile Court and return the child to the Juvenile Court to be proceeded against as a juvenile delinquent. The District or Criminal District Court must hold an examining trial to make its determination at which time the child is to be represented by a lawyer ....
“The District or Criminal District Court may instead of referring the child back to the Juvenile Court, send the case on to the Grand Jury. However, the Grand Jury is under no compulsion to indict. If the Grand Jury does not indict then the District or Criminal District Court must certify that fact to the Juvenile Court, which then must resume jurisdiction of the child.” (Emphasis supplied.)

A portion of the 1965 amendment to Article 2338-1, supra, was held unconstitutional in Foster v. State, 400 S.W.2d 552 (Tex.Cr.App.1966), but it did not directly relate to the above discussion, and in 1967 Article 2338-1, supra, was again amended (Acts 1967, 60th Leg., p. 1082, ch. 475).

The 1967 amendment to the said statute was similar in nature to the 1965 amendment with certain language changes, all of which is set forth in Menefee. § 6(j) of the statute, as amended, provided in part that after transfer from the juvenile court the “child” shall be dealt with as an adult in accordance with the Code of Criminal Procedure. The subsection then provided, “However, the examining trial shall be conducted by the district court or criminal district court which may remand the child to the jurisdiction of the juvenile court.”

In 1973 Article 2338-1, supra, was replaced by V.T.C.A., Family Code, § 54.02 (Acts 1973, 63rd Leg., ch. 543 [see p. 1406]). Like its forerunners, said § 54.02 provided the same safeguards as earlier provided. In subsection (h) of the statute it is provided in part, “The examining trial shall be conducted by the court to which the case was transferred, which may remand the child to the jurisdiction of the juvenile court.”

In Menefee v. State, supra, this court wrote:

“It is clear from these enactments that the legislative intent has been that a three step procedure be followed before a juvenile, sixteen and later fifteen years old or older, is tried in district court as an adult. At each step safeguards were provided. If the juvenile court decides to retain jurisdiction at the hearing to determine if the court should waive jurisdiction and certify the juvenile for criminal proceedings, that ends the matter with regard to certification. The juvenile then will be handled as a juvenile. If there has been certification and the district court, following an examining trial, decides to remand the juvenile to juvenile court, then the juvenile will not be tried as an adult but will be subject to the jurisdiction of the juvenile court. If the juvenile, after an examining trial in district court, is bound over for action by the grand jury and the grand jury does not indict, the district court certifies such failure to indict to the juvenile court and the jurisdiction of the case is resumed by the juvenile court. Thus, at any of the three steps if there is a decision not to prosecute the juvenile as an adult, then the juvenile will not be so prosecuted.
“While there have been changes in the language in the various enactments, the purpose and basic procedure has remained the same.”

Thereafter, the court in Menefee concluded that the examining trial was to be the second vital step in determining whether a juvenile should be tried as an adult, and that the indictment returned against Mene-fee prior to an examining trial must be set aside.

The dissent now says the reasoning in Menefee was based on a faulty premise. How was it faulty? Did the Legislature never intend the examining trial to be a second vital step in the discretionary transfer procedure, or having once so intended, did it amend the law to provide otherwise? The dissent does not tell us and seems to steer clear of any analysis or.even discussion or mention of’the various enactments providing for an examining trial since 1967 for the discretionary transfer procedure.

After labeling the premises in Menefee faulty, the dissent, without more, immediately launches into a discussion of V.T.C.A., Family Code, § 56.01, providing for an appeal from the juvenile court’s order transferring a juvenile to a district court. Thereafter, the dissent boldly asserts, without reasoning and without a discussion of previous provisions for appeals:

“The provisions for an appeal from the juvenile court’s order of transfer reflects the Legislature’s intent that a determination is to be made on this issue (whether the grand jury may be expected to return an indictment) in the juvenile court and negates any suggestion that a second step is required to be taken in this procedure.”

Said § 56.01 provides, inter alia, generally for various appeals from the orders of the juvenile court to the Courts of Civil Appeals and by writ of error or upon certificate to the Supreme Court of Texas as in other civil cases. It does provide, inter alia, that “(c) An appeal may be taken by or on behalf of the child from: (1) an order entered under Section 54.02 of this code respecting transfer of the child to criminal court for prosecution as an adult.” In subsection (c)(2), (3), (4) and (5), appeals are also provided for from orders entered in juvenile court under §§ 54.03, 54.04, 54.05 and Chapter 55 of the Family Code.

A reading of § 56.01 (Acts 1973, 63rd Leg., p. 1485, ch. 544, § 3) clearly shows it is applicable to all types of appeals from orders of the juvenile court just as its forerunner, Article 2338-1, § 21, provided in more general terms for appeals from orders of the juvenile court long before the enactment of the first discretionary transfer act in 1965. It cannot be said, as does the dissent, that merely because an appeal is provided from the order of the juvenile court transferring a juvenile to the district court that such is indicative of the legislative intent that an examining trial is not a second vital step in the transfer process. There is nothing to support such assertion and it is therefore obvious why the majority offers no support for its assertion.

It is true that in making the determination whether to transfer the juvenile to district court one of the factors the juvenile court shall consider, among other matters, is whether there is evidence on which a grand jury may be expected to return an indictment. This, of course, is only one of the many factors that must be considered by the juvenile court, and on appeal the failure to consider a necessary factor may be raised. However, such appeal is not a substitute for the examining trial in district court after transfer. § 56.01(g) of the Family Code provides that an appeal does not suspend the order of the juvenile court. The appeal is entirely distinct from the examining trial procedure prescribed by transferred juveniles. If the Court of Civil Appeals determines on appeal that reversible error was made by the juvenile court in the discretionary transfer procedure, the case is generally remanded to the juvenile court, but this does not mean that the proceedings to try the juvenile as an adult are then terminated. The proceedings may commence anew in the juvenile court. However, as we have interpreted the law in Menefee, when the examining trial takes place in district court the trial judge may remand the case to the juvenile court and that terminates the adult proceedings against the juvenile, it being one of the three step procedural safeguards provided by law. The district judge in conducting an examining trial in such situation is not conducting an appellate review of the correctness of the juvenile court’s proceedings, as that is provided for elsewhere, but is making an independent determination whether the proceedings against the juvenile as an adult should be ended at that point or should be continued.

As noted by Chief Justice Cadena in Q_ V_ v. State, 564 S.W.2d 781, 785 (Tex.Civ.App.—San Antonio, 1978), “There is nothing in the Family Code indicating that, after transfer, the examining trial conducted by the criminal district court must be, in effect, a second hearing on the question of waiver of juvenile court jurisdiction ... If the criminal district court, after conducting the examining trial, concludes that there is no probable cause for holding the child to await the action of the grand jury, it may, instead of ordering the child released, as would be the result in a case involving an adult, remand the child to the jurisdiction of the juvenile court.”

The dissent argues that a certified or transferred juvenile is to be treated as an adult under the express terms of V.T.C.A., Family Code, § 54.02(h). The section so provides, but this cannot be taken too literally. The section also provides that the examining trial shall be conducted by the district court to which the transfer is made and that the court may remand the juvenile to the jurisdiction of the juvenile court. While legally trained district judges are magistrates (Article 2.09, V.A.C.C.P.) and may conduct examining trials for adults, there is no requirement they do so in ordinary cases, and in fact, as we know, most of the examining trials for adults are conducted by Justices of the Peace, many of whom are non-lawyers. It is obvious that the Legislature intended to avoid having the transferred juvenile’s examining trial 'Where adults have their examining trials by providing that the examining trial for a juvenile shall be in the district court. As noted in Menefee, the district court may remand the juvenile to juvenile court which no magistrate has the authority to do in the case of an adult. Further, where the grand jury does not indict the transferred juvenile, that fact is certified to the juvenile court and that court may resume jurisdiction. No such right is accorded an adult. Thus, it is clear that the transferred juvenile is not always “dealt with as an adult” as the dissent insists in its reasoning that the return of an indictment terminates the right to an examining trial for the transferred juvenile, nor did the Legislature so intend.

I concur.

CLINTON, Judge,

concurring.

The function of accepted rules of statutory construction is to ascertain legislative intent. My own analysis of pertinent provisions of the family code against a backdrop of predecessors to its Section 54.02(h) has led me to a conclusion that Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App.1977) was correctly decided. For me it is clear enough that the Menefee holding comports with discernible legislative concern that a child transferred over to the criminal justice system be afforded protections beyond those provided for real adults.

The perceived situation concerning handling children alleged to have committed penal offenses as it had developed to 1965 evoked a corrective, remedial legislative response that materialized as Acts 1965, 59th Leg., p. 1256, Ch. 577, Sec. 3. Basic to that response was the expressed notion that circumstances surrounding a child certified and transferred by a juvenile court as an adult to a district court or criminal district court should again be examined by the latter court having jurisdiction over criminal offenses. Thus, the 1965 amendment conferred upon a transferee district judge powers and duties of examining magistrates and directed that “upon hearing the District Judge shall make an order committing the child to jail, discharging him, admitting him to bail, or remanding him to the custody of the Juvenile Court as the law and facts of the case may require.”

In 1967 the 1965 amendment was stripped of redundancies and crystallized to provide that the transferred child “shall be dealt with as an adult and in accordance with the Code of Criminal Procedure,” to prescribe that transfer of custody “is an arrest” and to insist that “the examining trial shall be conducted by the district court or criminal district court which may remand the child to the jurisdiction of the juvenile court.” But, according to at least one close observer, essence of initial legislative response remained so that in carrying out the statutory scheme the transferee court “must hold an examining trial to make its determination” and it “may instead of referring the child back to the juvenile court send the case on to the grand jury,” Billings, footnote 2, supra.

Adopted in 1973, the family code brought forward as Section 54.02(h) substantially the 1967 provisions regarding responsibilities imposed on a transferee court:

“On transfer of the child for criminal proceedings, he shall be dealt with as an adult and in accordance with the Texas Code of Criminal Procedure, 1965. The transfer of custody is an arrest. The examining trial shall be conducted by the court to which the case was transferred, which may remand the child to the jurisdiction of the juvenile court.”

This history of developments and resultant language of Section 54.02(h) teaches that legislative intent was to vest in the transferee court jurisdiction over a child cum certified adult to make a threshold “probable cause” determination to hold the “adult” for further criminal proceedings or to relinquish criminal jurisdiction by remanding the child to juvenile court. Since power and authority to conduct an examining trial — a criminal proceeding — attach only upon transfer of a child certified as an adult to the transferee court, it follows that a remand to juvenile court upon finding no probable cause terminates criminal jurisdiction of the transferee court and returns the certified adult to status as a child.

Of course, by reason of Sec. 8.07(b), Y.A. P.C., when the child is no longer a certified adult neither a grand jury nor any other law enforcement agency restricted to dealing with alleged adult offenders may legally confront the remanded child.

Accordingly, I agree with the conclusions of Menefee, supra, that upon transfer an examining trial is mandated and it is the “second vital step in determining whether a juvenile should be tried as an adult” so that, without it, an indictment returned pri- or to an examining trial is void. Therefore, I concur in the judgment of the Court.

TOM G. DAVIS, Judge,

dissenting.

I dissent to the majority’s holding that the district court never acquired jurisdiction of these offenses and would hold that the appellant’s right to an examining trial under V.T.C.A. Family Code, Sec. 54.02(h), was terminated upon the return of indictments.

The holding in Ex parte Menefee (Tex.Cr.App.), 561 S.W.2d 822, that an indictment returned against a juvenile who has been transferred to district court prior to examining trial is void, is based on the faulty premise that the examining trial in district court is a “mandatory second step” in determining whether a juvenile should be tried as an adult in district court.

The majority elevates the examining trial provided for in Sec. 54.02(h) to the jurisdictional level of the requirement that an indictment be returned by a grand jury. It is readily apparent that the Legislature intended that any examining trial held after the transfer be in district court rather than before a justice of peace who might be a non-lawyer, but this provision only addresses the question of who shall hold the examining trial.

In Criss v. State, (Tex.Cr.App.), 563 S.W.2d 942, it was held that the examining trial provided for in the district court could be waived provided the waiver met the requirement of V.T.C.A. Family Code, Sec. 51.09. I would hold that an examining trial is not mandatory for the district court to acquire jurisdiction and, like an adult, the right to an examining trial is terminated by the return of an indictment.

V.T.C.A. Family Code, Sec. 56.01, provides for an appeal from the juvenile court order transferring the juvenile to district court for trial as an adult and Sec. 56.01(e), supra, requires that the juvenile court instruct the accused’s counsel to advise the child and his parent, guardian, or guardian ad litem of the child’s right to appointment of an attorney for appeal if an attorney cannot be obtained because of indigency. The record reflects careful compliance by the juvenile court judge of this provision. The orders of the juvenile court waiving jurisdiction contained findings “that evidence was presented concerning the alleged offense upon which a grand jury may be expected to return an indictment” pursuant to V.T.C.A. Family Code, Sec. 54.02(f)(3). There is no indication that appellant took such an appeal or desired to appeal from those orders.

The provision for an appeal from the juvenile court’s order of transfer reflects the Legislature’s intent that a determination is to be made on this issue in the juvenile court and negates any suggestion that a second step is required to be taken in this procedure. If the district court did not acquire jurisdiction of the offenses until an examining trial is held in district court, then it would logically follow that there should be no provision for an appeal to the Courts of Civil Appeals from the order of the juvenile court. Under such circumstances, the juvenile court’s order would amount to nothing more than an interlocutory order with final determination to be made in the district court.

Upon the district court accepting jurisdiction on March 25, 1976, following the waiver of jurisdiction by the juvenile court, the appellant was to “be dealt with as an adult” [emphasis supplied] under the express terms of Sec. 54.02(h), supra. In Menefee, it was emphasized that the accused was given the additional opportunity to have the criminal proceedings terminated and the jurisdiction of the juvenile court resumed at the examining trial in district court. The pertinent portion of Sec. 54.02(h), supra, provides that the court conducting the examining trial “may remand the child to the jurisdiction of the juvenile court.” The provision that the district court may remand the accused to the juvenile court further reflects the Legislature’s intent that the district court had acquired jurisdiction at this stage of the proceeding. It is noted that there is no mandatory provision that the accused be remanded to juvenile court if the examining trial does not bind him over for grand jury action, Sec. 54.02(h), supra, providing this action “may” be taken. If the examining trial in district court were a mandatory “second vital step” in determining whether a juvenile should be tried as an adult, as held in Menefee, the district court would not be vested with the discretion of whether to remand the accused to juvenile court in the event he was not bound over for grand jury action. On the other hand, Section 54.02(i) provides if the grand jury does not indict, the district court “shall certify the grand jury’s failure to indict to the juvenile court.” [Emphasis supplied.] If the grand jury does not indict the accused for a felony offense, it is mandatory that this fact be certified to the juvenile court which court “may resume jurisdiction of the case.” Since the juvenile court has supervision of juveniles who violate the compulsory school attendance laws and children who leave home without the consent of their parents, it is obvious why this mandatory provision may be desirable where the grand jury fails to indict the juvenile for a criminal offense. While the district court, sitting as an examining tribunal, has a power not granted over ordinary adults in that it “may” remand the accused to juvenile court, this provision imposes no limitation on the grand jury’s authority to take action where the district court has accepted jurisdiction but no examining trial has been held. It should be remembered that the juvenile has already been afforded a mandatory hearing in juvenile court in which it must have been determined that there was evidence presented “[u]pon which a grand jury may be expected to return an indictment.” Sec. 54.02(f)(3), supra.

After this determination had been made by the juvenile court in the instant case and no appeal taken therefrom, the district court accepted jurisdiction of the cause on March 25, 1976. Upon the district court accepting jurisdiction, the appellant was to “be dealt with as an adult” under the express terms of Sec. 54.02(h), supra. The inescapable conclusion to be drawn from the record is that appellant felt that an examining trial would avail him of nothing and he did not make a request for such a hearing. The appellant had already had a hearing in juvenile court in which it was found that there was evidence upon which a grand jury may be expected to return an indictment. This hearing and determination in juvenile court was mandatory before the appellant ever reached district court. Thus, appellant had already had a hearing not offered an adult on the question of evidence to support an indictment. From March 25, 1976, when the district court accepted jurisdiction, until June 9,1976, when the indictments were returned, appellant made no request for an examining trial, and for that matter has not to this date made any complaint about the denial of same. Under such circumstances, it is unthinkable that the appellant, who was to be dealt with as an adult when reaching district court, could be heard to complain that he was not accorded an examining trial in district court.

It has long been held that the return of an indictment against an adult terminates any right to an examining trial. See Bullard v. State (Tex.Cr.App.), 533 S.W.2d 812; Brown v. State (Tex.Cr.App.), 475 S.W.2d 938. Article 16.01, V.A.C.C.P., provides for an examining trial “before a magistrate” whereas Section 54.02(h), supra, provides that the examining trial shall be conducted “by the court to which the case was transferred.” It is apparent that the Legislature’s concern was that any examining trial be held by the court to which the case was transferred (instead of any magistrate under Art. 16.01, supra), rather than making such hearing a necessary step in the district court acquiring jurisdiction. Just as an indictment terminates the right of an adult to an examining trial, I would hold that an indictment terminates the right of a juvenile (when jurisdiction has been accepted in the district court) who by the express terms of Sec. 54.02(h), supra, is to be “dealt with as an adult.”

I dissent,

DOUGLAS, DALLY and W. C. DAVIS, JJ., join in this dissent.

      . In Winegamer v. State, 505 S.W.2d 303 (Tex.Cr.App.1974), it was intimated that this Court will indulge in a presumption of regularity of proceedings in juvenile transfer cases where the appellate record fails to reflect whether or not an examining trial was in fact conducted by the transferee District Court pursuant to the provisions of Section 54.02(h), supra. Accordingly, insofar as Winegamer, supra, is in conflict with our present holding, it is expressly overruled.

      . So that our holding will not be misconstrued, we here point out that in juvenile transfer cases a pre-indictment examining trial in the transferee District Court can be waived. Criss v. State, 563 S.W.2d 942 (Tex.Cr.App.1978).

      . Said § 54.02 was amended in 1975 by adding subsections (j). 00 and (7), not here involved (Acts 1975, 64th Leg., p. 2156, ch. 693, § 16).

      . Minton v. Frank, 545 S.W.2d 442, 445 (Tex.1976).

      . See generally, Billings, “The New Juvenile Delinquent Law,” 31 T.B.J. 203 (March 1968); Steele, “The Treatment of Juveniles Under the Family Code; an Overview,” Texas Tech.L.R. 589 (1974).

      .That these statutory provisions may reflect concepts which perplex and confound the criminal law expert is not sufficient justification for rejecting them in critical terms.

      . Comfort in the conclusion reached is provided by historically recorded facts that examining trials were indeed routinely conducted by the trial bench from and after the 1965 amendment: Jackson v. State, 449 S.W.2d 242, 243 (Tex.Cr.App.1969); Garza v. State, 469 S.W.2d 169, 171 (Tex.Cr.App.1971); Ellis v. State, 543 S.W.2d 135, 137 (Tex.Cr.App.1976); Q-V_ v. State, 564 S.W.2d 781, 785 (Tex.Civ.App.—San Antonio, 1978, writ ref., n. r. e.) and, further, that the bar is being so advised as in, e. g., Billings, supra and Dawson, “Juvenile Law and Procedure,” II Advanced Criminal Law Course JJ at 29 (State Bar of Texas, August 1978). Moreover, our appellate courts are making clear that the respective determinations made by a juvenile court in a transfer proceeding and the transferee court at examining trial are independent of and not at war with each other; thus, a determination of the ultimate issue in a transfer proceeding is independently reviewed without regard to subsequent criminal proceedings, L.L.S., Relator v. Wade, 565 S.W.2d 251 (Tex.Civ.App.—Dallas 1978) and does not suspend criminal proceedings pending appeal, Moreno v. State, 511 S.W.2d 273 (Tex.Cr.App.1974) and the transferee court conducting an examining trial after transfer “need only make a finding of probable cause,” Q_ V_ v. State, supra.

      . V.T.C.A. Family Code, Sec. 56.01, “Right to Appeal,” provides in pertinent part:
      “(a) An appeal from an order of a juvenile court is to the Texas Court of Civil Appeals and the case may be carried to the Texas Supreme Court by writ of error or upon certificate, as in civil cases generally.
      ******
      “(c) An appeal may be taken by or on behalf of the child from:
      “(1) an order entered under Sec. 54.02 of this code respecting transfer of the child to criminal court for prosecution as an adult; . . .”

      . The majority opinion is contrary to our holding in Winegarner v. State, 505 S.W.2d 303, which was overruled sub silentio by Ex parte Menefee, supra, and expressly overruled by the majority herein.
      If the examining trial is the “second vital step” or a “mandatory second step” in determining whether a juvenile should be tried as an adult, then the record on appeal must reflect that an examining trial was held in district court just as the record must show a waiver of jurisdiction of the juvenile court and an indictment (or felony information).
      The majority opinion would also appear to be contrary to Attorney General’s Opinion M-1151, dated June 7, 1972, construing a similar provision in the statute applicable at that time,
      Sec. 6(g) of Art. 2338-1, V.A.C.S. The Attorney General In this opinion concluded that an examining trial in district court is not mandatory for a juvenile transferred from the juvenile court to district court for prosecution and that the right to an examining trial is terminated by the return of an indictment. While the opinions by the Attorney General are not binding upon courts and have no judicial precedent, courts have frequently said they are entitled to be given considerable weight in determining proper construction of statutes. Smith v. Panorama Country Club (Tex.Civ.App., 1976) 538 S.W.2d 268; Bradley v. Swearingen (Tex.Civ.App., 1975), 525 S.W.2d 280; City of Houston v. Southern Pac. Transp. Co. (Tex.Civ.App., 1973), 504 S.W.2d 554.


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    Wilbur JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 56004.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 7, 1979.
    Ronald Plessala, Port Arthur, for appellant.
    Tom Hanna, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for aggravated robbery. Punishment was assessed at ninety-nine (99) years by the jury.

Upon original submission of this appeal, it was gleaned from the record that the appellant was fifteen years old at the time of the alleged offense and was sixteen years of age at the time of trial. We failed to find in the record any evidence of waiver of the juvenile court’s jurisdiction over the appellant or any transfer of the juvenile court’s jurisdiction to the district court. See V.T.C.A., Family Code, § 54.02. The district clerk was ordered by this court to forward by supplemental transcript any order transferring jurisdiction from the juvenile court to district court or to certify that there was no such order. The district clerk forwarded such supplemental transcript showing an order transferring jurisdiction. In such supplemental transcript is found an instrument entitled “Findings Regarding Examining Trial,” signed by the trial judge which reads:

“Pursuant to the Defendant’s Motion for Inclusion in the Record on Appeal, the Court finds that the Defendant did not receive an examining trial prior to his indictment on the 19th of August, 1976. The Court would also reflect and find that an examining trial was not requested by the defendant.”

Thus, we are squarely presented with the question of whether this conviction can stand in light of Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App.1977). In Menefee the juvenile court waived jurisdiction and ordered the discretionary transfer to district court of Menefee’s cause. His attorney then requested an examining trial of the district court as provided in V.T.C.A., Family Code, § 54.02(h). None was provided and an indictment was returned. Mene-fee then filed an application for writ of habeas corpus contending the indictment was void since he had been denied an examining trial in violation of V.T.C.A., Family Code, § 54.02(h), and had been deprived of one of the essential steps provided by law before a juvenile can be tried as an adult. The trial court entered an order denying relief acting upon an agreed statement of facts.

On appeal this court wrote:

“The question presented is apparently one of first impression. Is an indictment returned against a juvenile after a discretionary transfer from juvenile court void for the failure of the district court, to which the transfer was made, to conduct an examining trial prior to the return of the indictment?”

After discussing the history of V.T.C.A., Family Code, § 54.02, and other matters, this court concluded that such indictment is void. This discussion need not be repeated here.

In Criss v. State, 563 S.W.2d 942 (Tex.Cr.App.1978), it was held that the right to an examining trial accorded a defendant by virtue of said § 54.02(h) could be waived if waived in accordance with V.T.C.A., Family Code, § 51.09(a). Said § 51.09(a) reads:

“Unless a contrary intent clearly appears elsewhere in this title, any right granted to a child by this title or by the constitution or laws of this state or the United States may be waived in proceedings under this title if:
“(1) the waiver is made by the child and the attorney for the child;
“(2) the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it;
“(3) the waiver is voluntary; and
“(4) The waiver is made in writing or in court proceedings that are recorded.”

In Criss the court stated: “When understood as a right created by Sec. 54.02(h), supra, the examining trial falls within the express terms of the Sec. 51.09(a) waiver provision.” In Criss there was a waiver in accordance with said Sec. 51.09(a) of the Family Code.

In the instant case it is undisputed that no examining trial was accorded the appellant. While the trial court found no examining trial was requested, there was no waiver of such examining trial in accordance with Sec. 51.09(a). Therefore, the indictment is void. See White v. State, 576 S.W.2d 843 (Tex.Cr.App.1979).

The indictment is hereby set aside and the cause is reversed and remanded in order that the appellant may be accorded an examining trial prior to the return of any new indictment.

DOUGLAS, TOM G. DAVIS, DALLY and W. C. DAVIS, JJ., dissent for the reasons stated in the dissenting opinion in White v. State, supra.

      . This motion was filed after this court’s order to the district clerk which requested that it be included in the record that the appellant had not received an examining trial prior to indictment.


author: ROBERTS, Judge.

text:
    Edward MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 56044.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Feb. 14, 1979.

      Mickey J. Blanks and Mark S. Smith, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty. and Robert E. Jones, Asst. Dist. Atty., Lubbock, for the State.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for sexual abuse. See V.T.C.A., Penal Code, Section 21.04(a)(1). A jury found appellant guilty and assessed his punishment at ten (10) years’ confinement.

Appellant complains of fundamental error in the court’s charge; he also contends that the court erred in overruling his motion for instructed verdict at the close of the State’s case in chief. We affirm.

The record reflects that on August 9, 1975, the complainant, an inmate at the Lubbock County jail, was sexually assaulted by the appellant, also an inmate. Immediately preceding the assault, the complainant had been found “guilty” of unspecified misconduct by a “court” composed of the appellant and other fellow inmates. As punishment, the appellant forced the complainant to submit to anal intercourse with him. On August 19, 1975, ten days after the assault occurred, the complainant reported the incident to jail authorities.

Appellant initially contends that the court’s instructions to the jury were fundamentally erroneous because the charge contained no instruction pursuant to the provisions of Article 38.07, Vernon’s Ann.C.C.P., which provides that:

“A conviction under Chapter 21, Penal Code, is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within six months after the date on which the offense is alleged to have occurred. The court shall instruct the jury that the time which lapsed between the alleged offense and the time it was reported shall be considered by the jury only for the purpose of assessing the weight to be given to the testimony of the victim.” (Emphasis supplied.)

Although the appellant failed to object to the court’s charge at trial, he presently argues that the provisions of Article 38.07, supra, are mandatory and that the court’s failure to sua sponte comply with its provisions renders the court’s charge fundamentally defective.

We agree with the appellant insofar as he contends that the directives of Article 38.07, supra, are mandatory; however, we cannot agree that the court’s failure to so instruct the jury, in absence of appellant’s objection or requested instruction, constitutes fundamental error. See Pitts v. State, 569 S.W.2d 898 (Tex.Cr.App.1978).

Fundamental error is presented where the error in the court’s instructions to the jury goes to the very basis of the case so that the charge fails to state and apply the law under which the accused is prosecuted. Harris v. State, 522 S.W.2d 199 (Tex.Cr.App.1975). Moreover, Article 36.19, Vernon’s Ann.C.C.P., provides in pertinent part as follows:

“Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.-16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. . . ” (Emphasis supplied.)

Accordingly, we cannot conclude that the court’s failure to instruct the jury pursuant to Article 38.07, supra, in absence of appellant's trial objection or request for instruction, constitutes reversible error. Therefore, this contention is overruled.

Appellant’s second and final contention is that the State failed to prove the requisite culpable mental state, i. e., that he acted with the “intent to arouse or gratify the sexual desire of any person . . . .” We find no merit in this contention. In most cases, evidence of a culpable mental state is provable only by circumstantial evidence. The record before us shows that appellant’s assault upon the complainant was both intentional and voluntary. See V.T.C.A., Penal Code, Section 6.01(a). Thus, the evidence amply supports a finding that appellant acted with the requisite intent. See Torme v. State, 525 S.W.2d 9, 10 (Tex.Cr.App.1975). Appellant’s second contention is overruled.

The judgment is affirmed.


author: PHILLIPS, Judge.

text:
    Joe Alton FULLER, Appellant, v. The STATE of Texas, Appellee.
    No. 56112.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Feb. 14, 1979.
    Kenneth W. Boyd, Cleburne, for appellant.
    John R. MacLean, Dist. Atty. and Wayne Bridewell, Asst. Dist. Atty., Cleburne, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for driving while intoxicated, second offense, on appellant’s plea of guilty before the jury. The punishment was assessed by the jury at one year imprisonment.

Appellant’s single ground of error contends that fundamental error was committed by the trial court when it failed to admonish the appellant on the range of punishment attached to the offense before accepting his guilty plea.

Appellant went to trial before the jury on a plea of not guilty and after the State rested its case sought to change his plea to guilty. The trial court questioned the appellant, but clearly failed to admonish him as to the range of punishment attached to this offense. The jury returned a verdict of guilty as instructed to do so by the court’s charge. After hearing the State’s case on punishment, the jury assessed the penalty at one year imprisonment.

Article 26.13(a)(1), Y.A.C.C.P., provided at the time of appellant’s plea as follows:

(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
(1) the range of punishment attached to the offense; .

This total failure to admonish the appellant as to the range of punishment attached to the offense to which he pled guilty constitutes reversible error under the authority of McDade v. State, Tex.Cr.App., 562 S.W.2d 487 (per Douglas, J.), and Murray v. State, Tex.Cr.App., 561 S.W.2d 821.

The judgment of conviction is reversed and remanded.


text:
    Warren WELLS, Appellant, v. The STATE of Texas, Appellee.
    No. 56210.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Feb. 14, 1979.
    Elmo R. Willard, III, Beaumont, for appellant.

      Tom Hanna, Dist. Atty. and John R. DeWitt, Asst. Dist. Atty., Beaumont, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for robbery. Punishment was assessed at eight years’ imprisonment. See V.T.C.A., Penal Code, Sections 29.02(a)(2), (b) and 12.42(b).

Appellant’s first ground of error complains of the trial court’s failure to grant his motion to quash this indictment based on his contention that because Section 29.-02(a) refers to Chapter 31 of the Penal Code in defining theft, the statute is vague, indefinite, and void. In his terms such internal statutory references create an “interpretative monstrosity.” Appellant’s brief at Page 9. We believe that this “interpretative monstrosity” is of counsel’s own making.

Although the constitutionality of this statute has never been expressly ruled upon by this Court, appellant’s contention is “strained [and] near-frivolous.” See Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972); McMorris v. State, Tex.Cr.App., 516 S.W.2d 927. The latter case dealt with the constitutionality of a statute which provided, in pertinent part, that “a person who uses or exhibits a firearm in resisting any lawful arrest, apprehension, or investigation by a peace officer is guilty of a felony.” Article 341(b), V.A.P.C. (1925). A similar contention was advanced by the appellant in Bates v.' State (No. 58,338, January 10, 1979), with regard to V.T.C.A., Penal Code, Section 36.02. A statute is void for vagueness if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. See Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1953). If the statute encourages arbitrary and erratic arrests and convictions, it is also void for vagueness. See Papachristou v. City of Jacksonville, supra; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066 (1937).

V.T.C.A., Penal Code, Section 29.02(a)(2) provides:

(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he: .
(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.

V.T.C.A., Penal Code, Section 29.01(1) provides:

(1) “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.

V.T.C.A., Penal Code, Section 31.03(a) provides:

(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.

These provisions, when read in conjunction, “clearly furnish adequate warning to anyone of ordinary intelligence that the kind of conduct embarked on by appellant[s] would constitute an offense.” Mutscher v. State, Tex.Cr.App., 514 S.W.2d 905 at 916 (constitutionality of Article 159, V.A.P.C. [1925]). It is readily apparent, from a review of the applicable statutes, what conduct is prohibited by the statutes and' that the statutes’ application is appropriately restricted so as not to result in arbitrary and erratic convictions. We therefore hold that V.T.C.A., Penal Code, Section 29.02(a)(2) is not unconstitutionally vague or indefinite. See Connally v. General Construction Company, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1925); accord Earl v. State, Tex.Cr.App., 514 S.W.2d 273; Watts v. State, Tex.Cr.App., 516 S.W.2d 414; and Johnson v. State, Tex.Cr.App., 541 S.W.2d 185. Appellant’s first ground of error is overruled.

Appellant’s second ground of error complains that the trial court committed reversible error by permitting this case to proceed under the general robbery statute when the more specific criminal attempt statute (V.T.C.A., Penal Code, Section 15.-01) should have controlled. Appellant’s position is based on the proposition that since there was no completed theft, the State was precluded from prosecuting the appellant under the robbery provisions discussed above. Since V.T.C.A., Penal Code, Section 29.02 is much more specific than V.T.C.A., Penal Code, Section 15.01, appellant’s contention falls of its own weight. It does not merit further discussion. Appellant’s second ground of error is overruled.

Appellant complains in his third ground of error that the trial court reversibly erred in not sustaining his motion for instructed verdict or restructuring the court’s charge to submit only the offense of attempted robbery to the jury. At the outset we note that appellant’s ground of error is clearly multifarious in violation of Article 40.09(9), V.A.C.C.P. The arguments set forth under appellant’s third ground of error demonstrate unequivocally that his contentions are multifarious. Further, there are no references to portions of the record in support of any of the multifarious issues raised. See Rodriquez v. State, Tex.Cr.App., 530 S.W.2d 944; Noah v. State, Tex.Cr.App., 495 S.W.2d 260; Langham v. State, Tex.Cr.App., 473 S.W.2d 515. Further, from a review of this record, all the multifarious contentions of the appellant are clearly without merit or are not properly preserved. Church v. State, Tex.Cr.App., 552 S.W.2d 138. Appellant’s third ground of error is overruled.

There being no reversible error, the judgment is affirmed.


author: DOUGLAS, Judge.

text:
    Kenneth OWENS, Appellant, v. The STATE of Texas, Appellee.
    No. 56226.
    Court of Criminal Appeals of Texas, Panel Two.
    Feb. 14, 1979.

      Thomas W. Schueller and Charles J. Mason, Jr., Wichita Falls, for appellant.
    Timothy D. Eyssen, Dist. Atty. and Donald E. Maxfield, Asst. Dist. Atty., Wichita Falls, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

DOUGLAS, Judge.

Kenneth Owens appeals his conviction for burglary of a building. The jury assessed his punishment at seven years.

Owens’ sole contention is that the evidence is insufficient. We agree and reverse.

Barbara Lowe testified that on September 14,1976, she was employed as Jim Bentley’s secretary in his office in Electra. As she left work that evening she locked the office. Upon returning in the morning she found that the door latch was broken and the door was not completely shut. Inside she found muddy footprints and discovered that several glass cases containing Bentley’s gun collection had been broken into. She called the police.

John Southerland, a deputy sheriff, testified that he was called to Bentley’s office. He and Bentley were friends and he had observed Bentley’s gun collection prior to this time. His description of the office after the break-in was similar to Lowe’s.

William Girth, a Texas Ranger, was also called to the office. He testified that it had been raining on September 14 and 15. He noticed the muddy prints inside the office and also observed a trail of footprints leading from the door that had been forcibly opened. He followed the footprints a short distance. The footprints stopped outside the Rainbow Courts Motel Room 5.

Bobby Martin, Electra’s Police Chief, testified that he accompanied Girth as he followed the footprints to the motel. He took a statement from Roger Robeson, the occupant of Room 5.

Roger Robeson testified that he was living in Room 5 at the Rainbow Courts. He knew appellant who was also a friend of his brother, Billy Robeson. Around 9:00 p. m. on September 14, 1976, he observed his brother handing several rifles to appellant. Appellant was standing inside Room 5 and Billy was standing outside. Robeson asked what they were doing and was told that he did not need to know. Later that evening, Billy and appellant wrapped the rifles up in a bedspread and left.

Jim Bentley testified that he owned a large gun collection that he kept in his office. He stated that sixteen to eighteen rifles and shotguns were taken and they had a value of between $4,000 and $5,000. Only eight of the rifles had been returned. There was no evidence indicating how they had been returned.

Our review of the evidence must be in the light most favorable to the jury’s verdict. In a circumstantial evidence case that evidence must exclude every reasonable hypothesis except the guilt of the appellant. Easley v. State, 564 S.W.2d 742 (Tex.Cr.App.1978); Stuff v. State, 531 S.W.2d 814 (Tex.Cr.App.1976).

In the instant case the State offered proof of a burglary where rifles were taken. Through the footprints they showed that someone had walked from the burglarized office to the motel and through the testimony of Robeson they showed that appellant and Billy Robeson handled some rifles on the night of the burglary. The State offered no proof that the rifles handled by appellant were the same or even similar to the stolen rifles. They offered no proof to connect appellant to the eight rifles that were returned to Bentley. The evidence does no more than cast a strong suspicion on appellant; it is insufficient.

The State contends that if the cause has to be reversed, it should be remanded for a new trial. That was the rule before the Supreme Court of the United States decided Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). Greene held that retrial of an individual after an appellate court finds the evidence to be insufficient constitutes double jeopardy.

The judgment is reversed and the judgment is reformed to show an acquittal to the charge of burglary of a building.


text:
    Anthony Ray KENNEYBREW, Appellant, v. The STATE of Texas, Appellee.
    No. 57473.
    Court of Criminal Appeals of Texas, Panel Two.
    Feb. 14, 1979.
    Lawrence B. Mitchell, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., John H. Hagler, Stewart C. Robinson, Jr., and Dan C. Guthrie, Jr., Asst. Dist. Attys., Dallas, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

DOUGLAS, Judge.

Anthony Ray Kenneybrew appeals his conviction for burglary of a vehicle. After the jury found that Kenneybrew had twice before been convicted of felonies, his punishment was assessed at life. The sufficiency of the evidence is not challenged.

On October 1, 1976, Kenneybrew was observed by two eyewitnesses breaking into a pickup truck. He was apprehended at the scene.

At the punishment phase of the trial, the court prepared a charge which authorized the jury to find only that each of the two prior felonies alleged against appellant was either true or untrue. The charge did not provide any further instructions in the event the jury found either or both allegations untrue. Appellant objected that this charge was improper and that the jury should be instructed on all the punishment alternatives.

A hearing, outside the presence of the jury, was held prior to the punishment phase of the trial. At that point, the court stated:

“. . . Charge of the Court will be given to this Jury, will involve only the answering of the questions- — that’s Paragraph Two and Paragraph Number Three — true or untrue, without regard and without listing any range of punishment or any contingencies, if this Jury finds the Paragraphs Two or Three to be untrue, and if that occurs, there will be an additional — -perhaps additional evidence and additional charges involving those matters, if the Jury does find untrue to either Paragraph Two or Paragraph Three.”

Also, at the hearing, the court ruled that the State could not introduce evidence of two other prior convictions which were un-alleged.

Kenneybrew contends that the court’s procedure at the punishment stage was improper and requires reversal of his conviction. In three grounds of error, he argues essentially that the procedure was contrary to the mandatory provisions of Article 37.-07, V.A.C.C.P.

Article 37.07, supra, provides for a two stage trial with separate hearings at the guilt and punishment phases. The court did not follow the procedure set out in Article 37.07, supra, at the punishment phase of the trial.

The only witness called at the punishment phase was John Slovak of the Identification Bureau of the Dallas County Sheriff’s Office. He testified that appellant’s fingerprints matched the fingerprints on two pen packets. Both pen packets and a card, made by Slovak, of appellant’s fingerprints were introduced into evidence. Appellant offered no evidence and waived final arguments.

There were no contested issues of fact at the punishment phase. The evidence fully established the allegations of the two prior convictions. On these facts, the jury would not have needed to consider the punishment options on which it was not charged. The error in failing to charge on those options was irrelevant considering the facts proved at the punishment stage.

There is no reversible error. The judgment is affirmed.


author: DODSON, Justice. REYNOLDS, Justice,, DODSON, Justice. REYNOLDS, Justice,

text:
    INTERNATIONAL INSURANCE COMPANY, Appellant, v. Valentina A. TORRES, Appellee.
    No. 8932.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 18, 1978.
    Rehearing Denied Jan. 22, 1979.

      Key, Carr, Evans & Fouts, Donald M. Hunt, Lubbock, for appellant.
    Maner, Nelson, Jones & Reaud, Inc., John H. Richards, Lubbock, for appellee.
   DODSON, Justice.

International Insurance Company appeals from a judgment based upon a jury verdict awarding Valentina Torres damages for total and permanent incapacity resulting from injuries sustained during the course and scope of her employment. The insurance company attacks the jury findings and judgment with legal and factual sufficiency points of error. We determine that the evidence supports the jury findings and that such findings are not so against the great weight and preponderance of the evidence as to be manifestly unjust. Affirmed.

Mrs. Torres is a 41 year old divorced parent with a sixth grade education and five children, age 13 to 21 still at home. In 1971 or 1972, after having previously performed manual labor on various jobs without suffering injury, Mrs. Torres began work as a maid at St. Mary’s of the Plains Hospital in Lubbock. Her job duties included mopping, sweeping, changing linens, moving and cleaning mattresses, and occasionally moving patients from one room to another. On June 14,1974, Mrs. Torres was injured when she slipped and fell on a wet floor in the emergency room of St. Mary’s Hospital. The testimony indicated that Mrs. Torres’ legs went out from under her, causing her to injure her back and arm as well as her bottom.

Mrs. Torres was examined by one of the emergency room physicians, who prescribed pain pills and told her to come back in two weeks if the pain continued. She did not work any more that afternoon, but she resumed work the following day. Mr. Claude Bennett, Mrs. Torres’ supervisor, testified that following the accident Mrs. Torres “wasn’t able to do her work as well as she had before.” He elaborated by stating that it took her longer to do the same work she had done before and that there was an outward evidence of physical pain on occasion, but that she was not a complainer. Mr. Bennett further testified that when it became obvious that she couldn’t handle the patient ward, he assigned Mrs. Torres to the mental health ward of the hospital, which was the lightest work load area in the hospital.

Complaining of pain, Mrs. Torres returned to the emergency room on three occasions. Each time she was examined by a different doctor who recommended that she continue the medication provided by the first doctor and told her that the pain she was experiencing would eventually go away.

Mrs. Torres continued working in the lighter duty mental health ward of the hospital until February 5, 1975. At that time she voluntarily terminated her employment. On direct examination, Mrs. Torres stated that the reason for quitting was a change in supervisors and the new supervisor wanted the employees to double their work. She further stated that she was still hurting from her injury. On cross examination, Mrs. Torres testified that she did not tell Mrs. Cox, the new supervisor, about her back hurting when she quit.

Mrs. Torres testified that her condition continued to deteriorate following her termination of employment at the hospital. She related that she slept with a heating pad, took hot baths and participated in supervised exercises to help her back. She further testified that there had been no significant period of time between the accident on June 14, 1974, and the trial on September 21,1978, when she had been free of her back problems. Her right leg bothers her when she wants to do something, such as cleaning house. She is unable to do her housework and testified that she could hardly walk. She said she could not “go out and get a job and keep it doing manual labor.”

Due to her continued pain, Mrs. Torres visited Dr. Robert Burns, a private physician who had treated her for an ulcer in 1972 or 1973. Dr. Burns examined Mrs. Torres twice and then made an appointment for her to visit Dr. Ted Sisco. Dr. Sisco also examined Mrs. Torres and referred her to Dr. Lloyd Garland, a neurosurgeon.

Dr. Garland testified that he first saw Mrs. Torres in his office on August 20,1975. He conducted X-rays, which he found to be within normal limits, and noticed a rather exaggerated limp when she walked. Mrs. Torres related to Dr. Garland that she was experiencing “continued discomfort around the right hip with extension of the pain into the right leg.” Further, since she had stopped working she had “continued to have right leg pain with prickling sharp sensation into the right heel. She said she had difficulty walking because of the pain in her heel and would occasionally feel some diffuse numbness involving the entire right leg.” On September 30, 1975, Mrs. Torres was admitted to Methodist Hospital, where she stayed until the 10th of October. During this hospital visit a lumbar myelogram was performed, the results of which showed no abnormalities.

Dr. Garland last saw Mrs. Torres on November 4,1975. He testified concerning his patient’s injuries that:

[I]t is my opinion that Mrs. Torres was temporarily disabled up through the 4th of November which was the last time I saw her. I further projected that Mrs. Torres’ disability would continue for a period of approximately six weeks at which time she could return to work. I felt that a total disability would result from the injury in the range of approximately three to five percent to the body as a whole, primarily based on the fact that she had a significant muscular strain to her back which had weakened the liga-mentous muscular structures and would predispose her to subsequent back injuries and would also tend to leave her with intermittent flareups of muscle soreness in her back which may or may not prevent her from working from a day or so over the next several years (emphasis added).

After being unemployed for 14 months, Mrs. Torres began working at Feather Fabrics in May of 1976. Her job consisted of putting thread into a machine than ran yarn. She characterized the work as easy because she was not standing up. She testified that she had some back pain but she didn’t complain because she needed the work to support her kids. Mrs. Torres worked only five months at Feather Fabrics at which time the company went out of business.

Mrs. Torres was next employed at Texas Instruments in a temporary job placing labels on calculators. Mrs. Torres testified that the work was easier than her work at St. Mary’s because she sat all day and did not move anything heavy. The rate of pay Mrs. Torres received at Feather Fabrics and at Texas Instruments was slightly greater than that which she received at St. Mary’s.

The jury found Mrs. Torres to be totally and permanently incapacitated beginning in February 1975. The insurance company attacks the findings and the resulting judgment rendered thereon with factual and legal sufficiency points.

In Texas Employers’ Ins. Ass’n v. Mallard, 143 Tex. 77, 79, 182 S.W.2d 1000, 1001 (1944), our Supreme Court determined that:

The term ‘total incapacity’ (or total disability), . . . does not imply any absolute disability to perform any kind of labor, but a person disqualified from performing the usual tasks of a workman, in such a way as to enable him to procure and retain employment, is regarded as being totally incapacitated, or totally disabled.

In considering the insurance company’s assertions that there is no evidence of probative force to support the jury finding of total incapacity under the Mallard standard, we must review the evidence in a light most favorable to the jury findings and disregard all contrary evidence. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). Having done so, we find sufficient evidence of probative force to support the total incapacity determination and overrule the no evidence points.

The insurance company also maintains that the evidence is factually insufficient to support the jury finding of total incapacity because the undisputed evidence shows that following her injury Mrs. Torres was able to procure and retain employment at Feather Fabrics for a period of five months and at Texas Instruments for three weeks prior to, and continuing at, the time of trial.

Mrs. Torres terminated her employment at St. Mary’s Hospital on February 5, 1975. She began the Feather Fabrics employment 14 months later. During this 14 month period she did not work and she testified that her condition got worse. She was treated by Doctors Burns, Sisco and Garland and spent ten days in the hospital. She also received physical therapy treatment during this period. Shortly after leaving St. Mary’s she tried to obtain employment in Lubbock working as a maid, even though her condition was not improved, but was unable to do so. Mrs. Torres testified she took the job at Feather Fabrics because the work was easy, she could sit down and do the work rather than stand on her feet, and she needed “money to support her kids.”

After the Feather Fabrics employment terminated in approximately October of 1976, Mrs. Torres did not obtain and retain employment until approximately three weeks before the trial. The trial began on September 21, 1977. Thus, she was unemployed approximately 11 months between the Feather Fabrics employment and Texas Instruments employment. The Texas Instruments job was temporary employment. At this job, Mrs. Torres placed labels on calculators passing on an assembly line. Again, she sat down to do the work rather than stand on her feet.

Mrs. Torres had five children living at home and four attended school. The insurance company stipulated to hardship. From February 5, 1975, to September 21, 1977, she worked approximately five months and three weeks at temporary employment. We are persuaded that the record bespeaks and supports the inference that Mrs. Torres worked out of hardship and economic necessity.

In the early case of Davies v. Texas Employers’ Ins. Ass’n, 29 S.W.2d 987, 988 (Tex.Comm’n App.1930), the Commission of Appeals determined that the mere fact that a workman compensation claimant worked and earned money after injury does not conclusively preclude a jury finding of total and permanent disability. In Traders & General Ins. Co. v. Heath, 197 S.W.2d 130, 133 (Tex.Civ.App.—Galveston 1946, writ ref’d n. r. e.)’ the court, in sustaining a total and permanent injury award by the jury, stated:

[I]t is now well settled that the mere fact a workman worked and earned money after sustaining an injury is not conclusive on the issue of his capacity to work, but is evidentiary only, to be considered along with the other evidence. Davies v. Texas Emp. Ins. Ass’n, Tex.Com.App., 29 S.W.2d 987; Traders & General Ins. Co. v. Collins, Tex.Civ.App., 179 S.W.2d 525; Lott v. American Surety Co., Tex.Civ. App., 140 S.W.2d 928; 45 Tex.Jur. 588, par. 161.

To the same effect is Trinity Universal Insurance Company v. Scott, 342 S.W.2d 348, 350-51 (Tex.Civ.App.—Fort Worth 1961, writ ref’d n. r. e.), where Chief Justice Massey cites forty-one cases in support of this principle and concludes that the question is no longer open for a contrary consideration.

In Heath, the court, in determining the factual sufficiency question, stated:

The evidence here was certainly sufficient to have justified the jury in concluding that appellee was malingering. But under the cited holdings the findings of the jury on the issues in question cannot be set aside merely because of the evidence that appellee worked for nine months during the period between his injury and the trial.

197 S.W.2d at 133.

Nevertheless, the insurance company maintains that, under the facts of the case before us, we should disregard the Heath and Scott line of decisions and follow the cases represented by Texas Employers’ Insurance Association v. Hawkins, 387 S.W.2d 469 (Tex.Civ.App.—Amarillo 1965, writ ref’d n. r. e.); Commercial Insurance Company v. Kempe, 440 S.W.2d 919 (Tex.Civ.App.—Dallas 1969, no writ); Commercial Insurance Company v. Puente, 535 S.W.2d 948 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.). In overturning a jury finding of total and permanent disability on insufficient evidence the Puente court said:

[T]he overwhelming evidence from this record shows that appellee’s condition does not and has not prevented him from obtaining and retaining permanent and lucrative employment calling for lighter duties which lighter duties he is able to perform full time.

535 S.W.2d at 953. In Puente, the claimant had returned to permanent employment with the same employer, at somewhat lighter duties and on a full time basis. At best, Mrs. Torres’ employment after the injury was temporary.

Our review of Hawkins and Puente also reveals no evidence of hardship which compelled the claimant, in each instance, to work in spite of incapacity. In the case before us, the insurance company stipulates hardship and Mrs. Torres testifies that she worked to support her kids. These matters are not disputed in the record.

We conclude that many cases can be cited pro and con on the question of the sufficiency of the evidence to sustain a jury finding of total and permanent disability. We respectfully refrain from undertaking the impossible task of attempting to reconcile all of these cases. However, we are persuaded that the great weight of authorities support the prevailing view that the mere fact that a workman worked and earned money after sustaining an injury is not conclusive on the issue of capacity to work but is evidentiary only and is to be considered along with the other evidence in the case. Davies v. Texas Employers’ Ins. Ass’n, supra; Trinity Universal Ins. Co. v. Scott, supra; Traders & General Ins. Co. v. Heath, supra. This principle is particularly applicable when, as here, the claimant continues to work and earn money after her injury out of hardship and economic necessity. Texas Employers’ Ins. Ass’n v. Pillow, 268 S.W.2d 716, 721 (Tex.Civ.App.—Fort Worth 1954, writ ref’d n. r. e.).

The courts of this state consistently hold that there is no precise formula by which incapacity may be measured. The duration and extent of disability received from an injury is at best an estimate which must be determined by a jury from all the pertinent facts before it. Gulf Ins. Co. v. Hodges, 513 S.W.2d 267, 272 (Tex.Civ.App.—Amarillo 1974, no writ); Montoya v. American Employers’ Ins. Co., 426 S.W.2d 661, 662-63 (Tex.Civ.App.—El Paso 1968, writ ref’d n. r. e.). Furthermore, the injured party’s testimony, even though contradicted by medical witnesses, may establish the disability. Texas Employers’ Ins. Ass’n v. Nelson, 534 S.W.2d 150, 152 (Tex.Civ.App.—Amarillo 1976, writ ref’d n. r. e.). Other cases further suggest that:

Any doubt we may have as to whether this evidence actually supports the jury finding of permanent incapacity must be resolved in favor of the right of the injured workman to receive compensation. Baily v. American General Ins. Co., 154 Tex. 430, 279 S.W.2d 315, 318; Hargrove v. Trinity Universal Ins. Co., 152 Tex. 243, 256 S.W.2d 73.

Royal Indemnity Co. v. Smith, 456 S.W.2d 218, 221 (Tex.Civ.App.—Fort Worth 1970, no writ); Travelers Ins. Co. v. Arnold, 378 S.W.2d 78, 83 (Tex.Civ.App.—Dallas 1964, no writ).

In essence, factual sufficiency questions in worker’s compensation cases must be determined as in other cases. Therefore, in passing on the insurance company’s factual sufficiency points we must review and consider all of the evidence, both favorable and unfavorable to the company’s position, to determine if the jury findings of total and permanent disability are so against the great weight and preponderance of the evidence as to be manifestly unjust or wrong. Having done so, we conclude that the insurance company’s factual sufficiency point must be overruled.

In summary, the insurance company's points of error one through nine are overruled. Accordingly, the judgment of the trial court is affirmed.

REYNOLDS, J., dissenting.

REYNOLDS, Justice,,

dissenting.

I respectfully dissent.

By her own admission, Valentina A. Torres was able to obtain and retain employment and ably performed the tasks of her employment during some of the period the jury found she was totally incapacitated. Consequently, within the meaning of the Texas Workers’ Compensation Act, Mrs. Torres was not, and the evidence is factually insufficient to sustain the jury finding that she was, totally incapacitated during those periods of time.

Because constitutionally the judgment of a court of civil appeals is final and binding on the Supreme Court on all questions of fact, Tex.Const. art. V, § 6, it normally serves no useful purpose to record a disagreement with the majority’s determination of the factual sufficiency of the evidence. But inherent in that constitutional command is the essential that the determination be reached under proper rules of law, Hubacek v. Ennis State Bank, 159 Tex. 576, 325 S.W.2d 124, 126 (1959), and a determination reached under a misconception of the law applicable to the facts is error which calls for a consideration of the question under the proper rules of law. Puryear v. Porter, 153 Tex. 82, 264 S.W.2d 689, 690 (1954). Thus, with the belief that the majority has reached its decision under an erroneous view of the law, I enter this dissent.

Within the meaning of the Texas Workers’ Compensation Act, total incapacity, which does not necessarily imply an absolute physical inability to perform any kind of labor, exists when a worker is disabled to the extent that he cannot perform the usual tasks of a workman in such a way as to enable him to obtain and retain employment. Texas Employers’ Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000, 1001 (1944). In connection with this standard, it has been recognized that the injured party’s testimony, even though contradicted by medical witnesses, may establish the disability, Texas Employers’ Ins. Ass’n v. Nelson, 534 S.W.2d 150, 152 (Tex.Civ.App.—Amarillo 1976, writ ref’d n. r. e.), and the fact that an employee works and earns money after an injury is not conclusive on the issue of total incapacity, but is an evidentiary factor to be considered with all other facts and circumstances, Aguirre v. Pan American Insurance Company, 417 S.W.2d 900, 902 (Tex.Civ.App.—San Antonio 1967, writ ref’d n. r. e.), particularly where the work is compelled by economic necessity. Texas Employers’Ins. Ass’n v. Pillow, 268 S.W.2d 716, 721 (Tex.Civ.App.—Fort Worth 1954, writ ref’d n. r. e.). Conceiving this law to be applicable to the evidence set forth in its opinion, the majority has determined that the recited evidence is factually sufficient to support the jury finding of total and permanent incapacity, “particularly . when, as here, the claimant continues to work and earn money after her injury out of hardship and economic necessity.”

Yet, a part of the same law is that to recover for total incapacity, the claimant has the burden to prove by a preponderance of all of the evidence that the disability is not merely partial. Southern Underwriters v. Boswell, 138 Tex. 255, 158 S.W.2d 280, 283 (1942). Partial incapacity is defined, in 2 State Bar of Texas, Texas Pattern Jury Charges § 22.02 (1970), in these words:

“PARTIAL INCAPACITY” is any degree of incapacity less than total incapacity, and means that a person’s earning capacity is reduced because he can perform only part of the usual tasks of a workman or can only do lower-paying work than he could do before his injury, but can get and keep employment suitable to his condition.

This definition has been specifically approved by the Supreme Court with the concurrent holding that the definition comports with the intent of the Workers’ Compensation Act. Select Ins. Co. v. Boucher, 561 S.W.2d 474, 479 (Tex.1978).

Impliedly, then, the majority has determined that the recited evidence negates partial incapacity. However, omitted from the majority’s recitation of the evidence is that during her testimony, Mrs. Torres unequivocally agreed that she was physically able to do the work at Feather Fabrics, where her intentions to continue at that employment were forestalled when the company went out of business, and at Texas Instruments, where she hopes the employment becomes permanent. There is no other evidence to contradict these statements. Mrs. Torres’ testimonial declarations that she obtained and retained employment which she is physically able to do are clear and unequivocal declarations which relate to facts peculiarly within her own knowledge. Under these circumstances, the declarations are judicial admissions which are conclusive on Mrs. Torres, Gevinson v. Manhattan Construction Co. of Okla., 449 S.W.2d 458, 466 (Tex.1969), and preclude a finding of total permanent incapacity during the periods of such employment. To uphold a recovery for total and permanent incapacity, the evidence must not only show the workman is disabled from performing the usual tasks of a workman, but it must also show the workman is disabled to such an extent that he cannot get and keep employment. Commercial Ins. Co. of Newark, N. J. v. Puente, 535 S.W.2d 948, 952 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.).

The situation pictured by all of the evidence is not one where Mrs. Torres, spurred only by economic necessity, labored when she was not physically able to perform the tasks of the employment she undertook after her injury. Rather, Mrs. Torres’ own testimony depicts the situation where she obtained and retained employment, albeit at a less strenuous job than she had before her injury, and is ably performing the usual tasks of her employment on a full-time basis at a rate of pay in excess of that formerly received. At most, the situation Mrs. Torres described, and corroborated by the medical evidence, is one of partial incapacity; and, in similar situations, a finding of total and permanent incapacity during such period of time has been held to be against the great weight and preponderance of the evidence. Commercial Ins. Co. of Newark, N. J. v. Puente, supra; Texas Employers’ Insurance Ass’n v. Vineyard, 316 S.W.2d 156 (Tex.Civ.App.—Dallas 1958, no writ).

Reaching this result does not conflict with the principles underlying the holdings in the cases cited by the majority in support of their determination of evidential sufficiency. None of those cases, so far as the opinions reveal, confronted a factual situation involving a claimant’s own judicial admission of physical ability to perform the tasks of the post-injury employment. Likewise inapposite is Mrs. Torres’ contention, which coincides with the majority’s holding, that the rule of Texas Employers’ Ins. Ass’n v. Mallard, supra, has been interpreted to mean that disability is total when the employee cannot get and keep employment for physical labor such as he or she had to do to make a living prior to the injury. Although Mrs. Torres cites two cases which contain statements tending to support the contention, the authorities listed in those cases for the statements do not make that interpretation of the rule. Moreover, it is an unwarranted interpretation, for Texas Employers’ Ins. Ass’n v. Mallard, supra, clearly states that total incapacity implies a disability to perform the usual tasks of a workman and not merely the usual tasks of his usual occupation or of any particular one trade or occupation. 182 S.W.2d at 1002.

Therefore, under the proper rules of law applicable to the facts in this cause, the evidence should be held factually insufficient to sustain the jury finding of total and permanent incapacity, the judgment should be reversed, and the cause should be remanded. Because the majority has reached a contrary determination under what I view to be a misconception of the applicable law, I respectfully dissent.

ON MOTION FOR REHEARING

DODSON, Justice.

On motion for rehearing, appellant International Insurance Company maintains that the evidence conclusively shows only partial incapacity because the employee got and kept employment which she was physically able to perform. Appellant further asserts that we failed to consider all of the evidence by ignoring the employee’s judicial admissions that she got and kept employment. The dissenting opinion also asserts that Mrs. Torres judicially admitted that “she obtained and retained employment which she is physically able to do,” thus precluding “a finding of total and permanent incapacity during the periods of such employment.”

It is undisputed that Mrs. Torres was temporarily employed by Feather Fabrics for approximately five months. Similarly, she was employed in a temporary position with Texas Instruments for the three weeks prior to, and continuing at, the time of trial. With regard to this employment, Mrs. Torres testified on direct examination:

Q. Were you able to do that work [at Feather Fabrics]?
A. Yes.
Q. Did you have any problems while you were doing it, with your back?
A. Well, sometimes but I didn’t complain because I needed to work, I needed the money to support my kids.

Mrs. Torres also testified that there had been no significant period of time between the accident on June 14, 1974, and the trial on September 21, 1977, when she had been free of her back problems. Mrs. Torres did, however, testify on cross-examination that she was “able to do the work okay physically” at both Feather Fabrics, where her job required her only to thread yarn through a machine from a sitting position, and at Texas Instruments, where she placed labels on calculators from a sitting position. We do not find this isolated statement concerning physical ability to be a deliberate, clear and unequivocal testimonial declaration constituting a judicial admission of partial incapacity which would preclude a jury finding of total and permanent incapacity in this case. See Jennings v. Texas Employers’ Insurance Association, 397 S.W.2d 127, 128 (Tex.Civ.App.—Waco 1965, no writ), and the Supreme Court cases cited therein for a positive statement of the test concerning testimonial declarations as judicial admissions.

Under the Insurance Company’s contention, if there is any evidence that the claimant obtained and retained employment after the injury which the claimant is physically able to do, then the trial court is required to instruct the jury not to find total and permanent incapacity for any period during which the claimant worked. Alternatively, the trial court is required to set aside the jury verdict of total incapacity and grant a new trial. When carried to its logical conclusion, the Insurance Company’s contention would require preemptive instructions and successive new trials, until the jury, the trial court and the appellate courts agreed on the precise degree of incapacity. We do not perceive the controlling case law to dictate this drastic preemption of the province of the jury. Rather the courts of this state have generally refrained from attempting to substitute their judgment for that of the jury on the issue of degree of incapacity. We further note that the courts of this state have wisely refrained from attempting to establish a formula for the determination of the precise degree of incapacity a worker suffers other than the usual definitions of total incapacity and partial incapacity.

In conclusion, we reiterate that in determining the Insurance Company’s factual sufficiency points of error, we have reviewed and considered all of the evidence in the record, both favorable and unfavorable to the Insurance Company’s position, and having done so we reaffirm our determination that the jury finding of total and permanent incapacity is not so against the great weight and preponderance of the evidence as to be manifestly unjust. The Insurance Company’s motion for rehearing is overruled. With these further comments, discussion and considerations, we adhere to our original opinion affirming the judgment of the trial court in the cause.

REYNOLDS, J., dissenting.

REYNOLDS, Justice,

dissenting.

I adhere to the view expressed in my dissenting opinion. Therefore, I respectfully dissent to the overruling of International Insurance Company’s motion for rehearing.

The majority has characterized Mrs. Torres’ cross-examination testimony “that she was ‘able to do the work okay physically’ ” as an “isolated statement concerning physical ability” which “[w]e do not find . to be a deliberate, clear and unequivocal testimonial declaration constituting a judicial admission of partial incapacity which would preclude a jury finding of total and permanent incapacity in this case.” The pertinent testimony is:

Q This job at Feather Fabrics — as I understand it, Feather Fabrics went out of business?
A Yes, sir.
Q And you intended to continue working for them, didn’t you?
A Yes, sir.
Q And now you’ve picked up and gone to work for TI and that’s a good company to work for, I take it?
A I think so, yes.
Q And they have good benefits out there?
A I don’t know.
Q Do you intend to continue working for Texas Instruments?
A Well, it’s only temporarily, that’s what they told me.
Q Well, what I’m getting at, at least my experience in working has been that a lot of temporary jobs turn into permanent jobs. If that’s the case in your situation, do you intend to continue working for them?
A I hope.
Q Then you’re able to do the work okay physically?
A Yes, sir.
Q And you were able to do the work okay at Feather Fabrics, physically, weren’t you?
A Yes, sir.
Q And your termination or quitting of the employment at Feather Fabrics had nothing to do with any physical problem or anything, it went out of business?
A Yes, sir.

Mrs. Torres is in the best position to honestly evaluate the disabling effects of her injury. She has declared that she is physically able to perform the tasks of the employment she obtained. Her declarations are clear and unequivocal expressions of these facts which are peculiarly within her knowledge. They do not contradict any other portion of her testimony. They stand unmodified and unexplained. They are, thereby, judicial admissions which are conclusive on Mrs. Torres and preclude a finding of total and permanent disability during those periods of employment.

Thus, I would grant the motion for rehearing. I would reverse the judgment because the evidence is factually insufficient to sustain the jury finding of total and permanent incapacity during the time Mrs. Torres was able to obtain and physically able to retain employment, and remand the cause. Because the majority has not done so, I respectfully dissent.

      . See also 39A Texas Digest, Workmen’s Compensation Key Numbers 840, 1636 for numerous cases to the same effect as Davies, Heath and Scott.

      . Under Rule 326, Texas Rules of Civil Procedure, the trial court may grant only two new trials in a cause because of insufficiency or weight of the evidence; however, no limitation is placed on the appellate courts.


author: ROBINSON, Chief Justice.

text:
    Wylie HAMM and Joe J. Borrows d/b/a B & H Refrigeration, Appellants, v. John CROCKETT and Doug Crockett, Appellees.
    No. 8942.
    Court of Civil Appeals of Texas, Amarillo.
    Jan. 15, 1979.

      Garner, Vickers, Purdom & Nelson, Thomas J. Purdom, Lubbock, for appellants.
    James K. Walker, Morton, for appellees.
   ROBINSON, Chief Justice.

This is an appeal from a judgment overruling defendants’ plea of privilege. Plaintiffs, John and Doug Crockett, residents of Cochran County, Texas, instituted suit in that county against Wylie Hamm and Joe J. Borrows, d/b/a B & H Refrigeration. Plaintiffs sought damages arising from alleged fraudulent misrepresentations made by defendants. Defendants filed their plea of privilege, seeking to have suit transferred to Lubbock County, Texas, the county of their residence. Plaintiffs filed a controverting plea which contended that the cause of action was properly maintainable in Cochran County pursuant to article 1995, subdivisions 7 and 23, Tex.Rev.Civ.Stat.Ann. (Vernon 1964). The trial court, sitting without a jury, overruled defendants’ plea of privilege. Defendants attack this judgment, asserting: (1) that plaintiffs failed to prove misrepresentations which would constitute actionable fraud; and (2) that plaintiffs failed to prove that a cause of action arose in Cochran County. Affirmed.

Subdivision 7 of article 1995, relied upon by plaintiffs, requires that plaintiffs plead and prove by a preponderance of the evidence that the defendants committed actionable fraud in the county where the suit was filed. Coalson v. Holmes, 111 Tex. 502, 240 S.W. 896, 898 (1922); Brooks v. Parr, 507 S.W.2d 818, 819 (Tex.Civ.App.—Amarillo 1974, no writ). The elements of actionable fraud are: (1) that a material representation was made; (2) that it was false; (3) that when the speaker made it he knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by the party; (5) that the party acted in reliance upon it; (6) that he thereby suffered injury. Stone v. Lawyers Title Insurance Corp., 554 S.W.2d 183, 185 (Tex.1977); Oilwell Division, United States Steel Corp. v. Fryer, 493 S.W.2d 487, 491 (Tex.1973).

Findings of fact or conclusions of law were not requested and none were filed. In such circumstances all questions of fact are presumed found in support of the judgment. Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex.1977); Buchanan v. Byrd, 519 S.W.2d 841, 842 (Tex.1975). Judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Lassiter v. Bliss, supra, at 358; Seaman v. Seaman, 425 S.W.2d 339, 341 (Tex.1968). Defendants assert that the evidence did not support a finding that there was a false representation of a material fact or that defendants knew any representation was false.

At the hearing, plaintiffs, John and Doug Crockett, were the only witnesses. They testified to the following facts among others. Plaintiffs wished to buy an ice machine capable of producing five hundred pounds of ice in a twenty-four hour period. Defendants represented in Morton, Cochran County, that they had a used Whirlpool ice machine that would produce as required. Based on that representation, plaintiffs bought the machine. The $1,155.00 purchase price was paid at the time of delivery. The machine did not produce as represented and failed to work properly even after defendants returned and worked on it. Defendants finally picked up the machine. At the time they picked up the machine, defendants stated that they were taking it to the dump ground. Defendants agreed to apply the $1,155.00 paid by plaintiffs on the purchase of a new Manitowoc ice machine. Defendants recommended the Manitowoc as the best machine and said that the list price was $2,300.00. The Manitowoc machine was never delivered. Eventually, defendants delivered a Sunbeam machine with a bill for $2,900.00. The parties were never able to reach an agreement for the purchase of the Sunbeam machine. Defendants picked up the Sunbeam machine and stated that they did not have a check with them, but that they would put a check in the mail for the amount paid on the used Whirlpool machine. Plaintiffs, in spite of demands, never received payment.

We have considered all of the evidence including that unfavorable to findings of fraud as well as that supporting the findings and are of the opinion that the evidence is sufficient to support presumed findings by the trial judge that defendants, in order to induce the contract, made a false representation of a material fact, i. e., the capacity of the Whirlpool machine, knowing that it was false or in reckless disregard of its falsity and that the representation was relied upon to plaintiffs’ injury.

We conclude that the trial court did not err in maintaining venue in Cochran County under subdivision 7, art. 1995, and in overruling defendants’ plea of privilege.

The foregoing holding is dispositive of this appeal. We do not reach the remaining questions raised. The judgment of the trial court is affirmed.