text:
    Dixie Dean POGUE v. The STATE of Texas, Appellee.
    No. 53585.
    Court of Criminal Appeals of Texas.
    July 13, 1977.
    D. Jennings Bryant, Jr., on appeal only, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Robert Shults and George M. Karam, Asst. Dist. Attys., Houston, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for aggravated robbery. Punishment was assessed at twelve years.

In her sole ground of error, appellant contends that the court erred in denying her peremptory challenge to “juror number five.”

The record reflects that after the names of twelve members of the panel were called by the clerk those persons were directed by the court to take a seat in the jury box. The court advised the remainder of the panel that they were free to go and stated to the twelve seated in the jury box, “. let’s take about a, let’s say, a slightly more than fifteen minute recess, to 4:10 by the clock on the courtroom wall.” Prior to the conclusion of the recess, defense counsel advised the clerk of the court that juror number five, William Evans Huggins, had been struck by appellant and that Huggins’ name had been mistakenly called as one of the twelve jurors selected.

The record reflects that the matter was brought to the court’s attention at 4:23 p. m. after the jurors had been returned to the courtroom prior to arraignment of appellant and before the twelve jurors were sworn. The court advised appellant’s counsel that it was impossible to “retrieve” the next person on the list since those not selected had been excused; “that the court had the lawyers present when the jury list was read out; that no information of this matter was brought to the court until after all others had been excused, and this person, who it is claimed his name was struck, was sequestered with the balance of the panel of jury.” Appellant’s motion for mistrial was overruled. At the hearing on the motion for new trial, the court stated that he knew from his conversation with the jury shepherd that there were no panels available remaining for that day but there was a panel available for the next morning.

In Acosta v. State, Tex.Cr.App., 522 S.W.2d 528, where a juror who had been stricken by defendant on a peremptory challenge served on the jury, this Court said:

“There can be no argument about appellant’s correctness in urging that a peremptory challenge can be made without a showing of prejudice. Art. 35.14, Vernon’s Ann.C.C.P. However, a different standard necessarily applies in removing a person from a jury where, as in the instant case, the juror had served as a member of the jury which had returned a verdict at the guilt stage of the trial before any objection was raised as to her presence on the jury. Anderson v. State, supra [142 Tex.Cr.R. 384, 154 S.W.2d 482]; Munson v. State, supra [34 Tex.Cr.R. 498, 31 S.W. 387]; 35 Tex.Jur.2d Jury, Sec. 133 (1960).”

The State urges that in the instant case there was a lack of diligence on appellant’s part in correcting the mistake and that appellant has failed to show any bias or prejudice on the part of the juror.

Two of the cases cited by the State, Anderson v. State, 142 Tex.Cr.R. 384, 154 S.W.2d 482, and Munson v. State, 34 Tex. Cr.R. 498, 31 S.W. 387, were discussed by this Court in Acosta, where it was stated:

“In Anderson v. State, 142 Tex.Cr.R. 384, 154 S.W.2d 482, where a juror whose name was not called took his place in the jury box thinking his name was called and was impaneled on the jury, and it was not until the next day after the case had proceeded to trial that the district clerk discovered that a juror had been mistakenly impaneled, this Court held the overruling of defendant’s motion for mistrial was not error in the absence of a showing that the juror mistakenly impaneled was prejudiced. In Anderson, it was further noted:
‘It is the duty of the parties to see that, as impaneled, the box does not contain a juror who has been challenged by striking; should such a juror remain and be sworn, the court is not obliged to discharge him and substitute another juror. A fortiori, the verdict is not vitiated thereby — at least unless the complainant can affirmatively show that the unaccepted juror was prejudiced.’
“In Anderson the Court cited Munson v. State, 34 Tex.Cr.R. 498, 31 S.W. 387, where the defendant urged that the trial court erred in refusing to excuse a juror ‘that he challenged ... on the list handed him.’ Such request was not made until after said juror was seated in the jury box, the jury was sworn, the indictment was read, and the defendant had entered his plea. In Munson, it was stated:
‘He [defendant] should have discovered the mistake before the jury was sworn, and then made his motion to withdraw his plea, and discharge the jury, and draw another jury. But, conceding that he had the right to have the juror set aside after he made the discovery, no injury appears to have resulted, as no opinion as to the case, or animus or prejudice, is shown to have existed on the part of the juror against appellant.’ ”

In West v. State, 54 Tex.Cr.R. 597, 114 S.W. 142, cited by the State, the Court relied on Munson in holding that an objection made for the first time at the motion for new trial that a juror stricken by the defendant had served on the jury came too late.

In Granger v. State, 31 S.W. 671, also cited by the State, a juror accepted by both the defendant and the State was left off the jury that heard the case. It was held that the defendant could not wait until after trial and for the first time complain on motion for new trial about the exclusion of the juror. The State points to that portion of the opinion which recites that defendant has not shown that he was compelled to take an obnoxious juror, or that he suffered any injury from the mistake or the negligence.

In Boles v. State, 102 Tex.Cr.R. 634, 279 S.W. 261, cited by appellant, where defendants were denied the right to make the number of peremptory challenges provided by law, it was stated:

“We think the action of the learned trial judge was clearly erroneous, and that under the law it was not incumbent upon the appellants to show injury, but that, when they are deprived of this right to exercise their full number of peremptory challenges, there is but one thing for this court to do, and that is to reverse this case.”

At the hearing at the motion for new trial in the instant case, the following testimony was elicited from the prosecutor:

“Q. Mr. Karam [prosecutor], isn’t it a fact that before the testimony started in this case and during the recess, this was made known to the Court, to the clerk, that he had made a mistake? Wasn’t this made known to you and everyone concerned that juror number five had, in fact, been struck by the Defense and should not have been on the jury?
“A. That was made known during the latter part of the recess and before the jury had heard any of the evidence. That’s correct.”

Clerk of the court, Vernon Sanders, testified at the hearing on the motion for new trial in response to appellant’s questions:

“Q. May I ask you if on the Defendant’s jury list, that juror number five, William E. Huggins — You examine that and tell me whether there is a line drawn through his name.
“A. Yes, sir. I can see that there is a line drawn partially through the name and partially on the exact line under the juror’s name.
* * * * * *
“Q. Isn’t it a fact that William Evans Huggins, juror number five was placed on the jury panel by mistake?
“A. Oh yes, sir.”

Unlike any of the cases cited herein, appellant brought the mistake to the attention of the trial court before the jury was sworn. The question presented is whether appellant’s failure to detect the error and call it to the court’s attention when the clerk called the names of the jurors and before the court excused the remaining members of the panel places appellant under the burden of showing that the juror mistakenly taken was prejudiced or that appellant was injured thereby. We do not find a lack of diligence on the part of appellant solely because of his failure to detect the error when the names of the jurors were called by the clerk when the appellant made the mistake known to the court before the jury was sworn. It is not contended that any other facts exist from which a lack of diligence could be inferred on appellant’s part. No bad faith is contended or shown. To require appellant to show that the juror in question was prejudiced or that he was injured by virtue of said juror’s presence on the jury would be in effect to deny appellant the right to the peremptory challenges afforded by law. We conclude the court’s failure to allow appellant’s peremptory challenge to the jur- or in question was error and requires reversal of this cause.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

      . The record contains what appears to be a photocopy of “Defendant’s Jury List.” While the line drawn through prospective juror number 5, William Evans Huggins, is not a bold one, it is discernible. It would appear to be a good practice in addition to marking through a challenged name to also place the numbered strike beside same. This not only better identifies the strike but also provides a method of determining rapidly the number of strikes exercised. Appellant’s list shows that, including challenge in juror number 5, ten strikes were made by appellant.


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    Hillary ROBINSON, Appellant, v. The STATE of Texas, Appellee.
    No. 53679.
    Court of Criminal Appeals of Texas.
    July 13, 1977.
    Marvin O. Teague, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and Ned B. Morris, Asst. Dist. Attys., Houston, for the State.
   OPINION

ONION, Presiding Judge.

These are appeals from conviction for aggravated robbery. See V.T.C.A., Penal Code, § 29.03. Punishment was assessed by the jury at life imprisonment on each count of the indictment.

The offenses charged were alleged to have been committed against different persons on the same date. They were consolidated in a single indictment pursuant to Article 21.24, Vernon’s Ann.C.C.P., as amended, and V.T.C.A., Penal Code, § 3.01 and § 3.02.

Article 21.24(a), supra, provides:

“(a) Two or more offenses may be joined in a single indictment, information, or complaint, with each offense stated in a separate count, if the offenses arise out of the same criminal episode, as defined in Chapter 3 of the Penal Code.”

§ 3.01 provides:

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

§ 3.02(a) provides:

“(a) A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode.”

The offense of aggravated robbery is provided for in V.T.C.A., Penal Code, § 29.03, which is found in Title 7 of said code.

An examination of the record reflects only one sentence was pronounced. It recites that appellant “has been adjudged to be guilty of Aggravated Robbery, as charged in the two counts of the indictment . and whose punishment has been assessed at confinement in the Texas Department of Corrections for Life . . .”

V.T.C.A., Penal Code, § 3.03, provides:

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

The single sentence referring to both counts of the indictment failed to meet the requirements of said § 3.03. In White v. State, 543 S.W.2d 130 (Tex.Cr.App.1976), there was a single sentence for three convictions of aggravated robbery arising out of the same criminal episode and prosecuted in a single criminal action. There was also only one judgment as in the instant case. In White, we were able to determine that the judgment and sentence were applicable to the first count of the indictment in view of the finding of the date of the offense as alleged in the first count and as supported by proof. Thus the conviction as to the first count was affirmed and the attempted appeals from the second and third counts were dismissed.

In the instant case the offenses were both alleged to have occurred on March 7, 1975. The judgment contains the finding, “. and that the said defendant committed the said offense on the 7th day of March, A.D. 1975 . . . .” as if there was only one offense. This is followed by the single sentence.

Unlike the situation in White, we are unable to determine upon which count of the indictment the single sentence was pronounced.

In instances where two convictions occurred at the same time based on the same evidence and the doctrine of carving renders one invalid, we have held that the conviction with the lower numbered indictment is the presumptively valid one. See and cf. Ex parte Calderon, 508 S.W.2d 360 (Tex.Cr.App.1974); Ex parte Adams, 541 S.W.2d 440 (Tex.Cr.App.1976); Ex parte Birl, 545 S.W.2d 169 (Tex.Cr.App.1977). Using the same rationale in the instant case, we hold that the judgment and sentence are applicable to the first count of the indictment. See Parks v. State, 553 S.W.2d 114 (Tex.Cr.App.1977).

Since, however, there is no sentence applicable to the second count as required by said § 3.03, the appeal relative thereto must be dismissed.

As the appeal from the first count of the indictment is properly before us, we shall discuss appellant’s contentions relative thereto.

In a ground of error appellant contends fundamental error occurred when the charge authorized the jury to find him guilty of aggravated robbery for conduct not plead in the indictment.

V.T.C.A., Penal Code, § 29.02 (Robbery), 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:
“(1) intentionally, knowingly or recklessly causes bodily injury to another; or
“(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
“(b) An offense under this section is a felony of the second degree.”

The elements of robbery with bodily injury under V.T.C.A., Penal Code, § 29.02, are: (1) a person (2) in the course of committing theft (3) with intent to obtain or maintain control of property (4) intentionally, knowingly or recklessly (5) causes bodily injury to another.

The elements of robbery by threats or fear are: (1) a person (2) in the course of committing theft (3) with intent to obtain or maintain control of property (4) knowingly or intentionally (5) threatened or placed another in fear of imminent bodily injury or death.

It is observed as to the culpable mental states involved in the two ways of committing robbery knowingly or intentionally are common to both while recklessly is applicable only to robbery with bodily injury.

V.T.C.A., Penal Code, § 29.03 (Aggravated Robbery), provides:

“(a) A person commits an offense if he commits robbery as defined in Section 29.02 of this code, and he:
“(1) causes serious bodily injury to another; or
“(2) uses or exhibits a deadly weapon.
“(b) An offense under this section is a felony of the first degree.”

The elements of aggravated robbery with serious bodily injury are: (1) a person (2) commits robbery under § 29.02 and (3) causes serious bodily injury to another.

The elements of aggravated robbery by deadly weapon are: (1) a person (2) commits a robbery under § 29.02 and (3) uses or exhibits a deadly weapon.

The Practice Commentary to said § 29.03 states:

“Section 29.03 aggravates robbery defined in Section 29.02 to a more serious offense if the bodily injury the offender inflicts under Section 29.02(a)(1) is 'serious,’ or if the offender threatens or otherwise causes fear of imminent bodily injury or death under Section 29.02(a)(2) by using a deadly weapon. . . .”

Omitting the formal parts, the first count of the indictment in the instant case alleges the appellant “heretofore on or about March 7,1975, did then and there unlawfully while in the course of committing theft of one billfold and keys owned by Marshall William Moody, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting . . . a pistol.”

It is clear the first count alleged robbery under V.T.C.A., Penal Code, § 29.02(a)(2), by alleging the appellant intentionally and knowingly threatened and placed the complainant in fear of imminent bodily injury and death and further alleged aggravation “by using and exhibiting ... a pistol.” See Y.T.C.A., Penal Code, § 29.-03(a)(2).

In the charge, among other things, the court abstractly charged on robbery, aggravated robbery, bodily injury, serious bodily injury, and the terms “knowingly,” “intentionally” and “recklessly.”

Then the court charged as follows with regard to the first count of the indictment:

“Now if you find from the evidence beyond a reasonable doubt that on or about the 7th day of March, 1975 in Harris County, Texas, the defendant, Hillary Robinson, did, without the effective consent of Marshall William Moody, the owner, take and exercise control over the corporeal personal property of Marshall William Moody, to-wit, one billfold and keys, from the possession of Marshall William Moody with intent then and there to deprive Marshall William Moody of said property, and that said defendant, in so doing, and with intent to acquire and maintain control of said property, intentionally, knowingly, or recklessly caused bodily injury to said owner or intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and if you further find from the evidence beyond a reasonable doubt that in so doing the foregoing acts, if you do so find, the defendant caused serious bodily injury to Marshall William Moody or the defendant used or exhibited a deadly weapon, to-wit, a pistol, then you will find the defendant guilty of aggravated robbery as charged in the indictment, in the first count thereof.
“If you find from the evidence that the defendant committed the offense of robbery as alleged in the first count of the indictment, as herein defined, but you have a reasonable doubt as to whether he caused serious bodily injury to Marshall William Moody or as to whether he used or exhibited a deadly weapon in committing said robbery, then you will find the defendant guilty only of robbery in the first count of the indictment and not of aggravated robbery.
“If you have a reasonable doubt as to whether the defendant is guilty of any offense, that is, aggravated robbery or robbery, as alleged in the first count of the indictment, then you will acquit the defendant and say by your verdict not guilty of the first count of the indictment.”

This charge authorized the jury to convict the appellant as charged of aggravated robbery, if they found, among other things, he intentionally, knowingly or recklessly caused bodily injury to the complainant and if they further found, beyond a reasonable doubt, the appellant caused serious bodily injury to the complainant. This was simply not alleged in the indictment. Further, the charge would have authorized a conviction for aggravated robbery if the jury found he intentionally, knowingly or recklessly caused bodily injury by using and exhibiting a deadly weapon. This was not alleged either. In fact, the charge autho-. rized a conviction under every conceivable theory under V.T.C.A., Penal Code, § 29.02 and § 29.03, rather than limiting it to the theory alleged in the indictment.

In Dowden v. State, 537 S.W.2d 5, 7 (Tex.Cr.App.1976), the defendant complained because the court included in its charge portions of the statutes that were neither pled in the indictment nor supported by the proof at trial. There this court said:

“. . . This practice at best is useless and at worst may confuse and mislead the jury and, therefore, prejudice a defendant. This Court in the past has had occasion to caution against the enumeration in the charge of portions of a statute that could not be relied upon for a conviction. E. g., Griffith v. State, 142 Tex.Cr.R. 559, 155 S.W.2d 612; see Grudzien v. State, Tex.Cr.App., 493 S.W.2d 827; Simons v. State, Tex.Cr.App., 34 S.W. 619; cf. Mauldin v. State, Tex.Cr.App., 463 S.W.2d 10. We reiterate that admonition.”

Appellant concedes there was no objection to the charge but urges fundamental error.

In Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974), this court stated:

“Appellant concedes there was no proper objection to this instruction made at trial. Without such objection, under Art. 36.19, V.A.C.C.P., only fundamental error requires reversal. Whitson v. State, 495 S.W.2d 944 (Tex.Cr.App.1973); Mendoza v. State, 491 S.W.2d 888 (Tex.Cr.App.1973); Fennell v. State, 424 S.W.2d 631 (Tex.Cr.App.1968). Fundamental error is an error ‘calculated to injure the rights of the appellant to the extent that he has not had a fair and impartial trial.’ Ross v. State, 487 S.W.2d 744 (Tex.Cr.App.1972).”

In Ross v. State, 487 S.W.2d 744 (Tex.Cr.App.1972), it is stated:

“The charge erroneously authorized the appellant’s conviction under a theory not charged in the indictment. Gooden v. State, 140 Tex.Cr.R. 347, 145 S.W.2d 177 (1940); Sullivan v. State, 13 Tex.App. 462 (1883); Weeks v. State, 13 Tex.App. 466 (1883); and Powell v. State, 12 Tex.App. 238 (1882). Even though there was no objection to the charge at the time of trial, the error was fundamental and calculated to injure the rights of the appellant to the extent that he has not had a fair and impartial trial. See Article 36.-19, Vernon’s Ann.C.C.P.; Fennell v. State, 424 S.W.2d 631 (Tex.Cr.App.1968); and Garza v. State, 162 Tex.Cr.R. 655, 288 S.W.2d 785 (1956). ...”

Cf. Peoples v. State, 548 S.W.2d 893 (Tex.Cr.App.1977); Windham v. State, 530 S.W.2d 111 (Tex.Cr.App.1975); Perez v. State, 537 S.W.2d 455 (Tex.Cr.App.1976); Mendoza v. State, 491 S.W.2d 888 (Tex.Cr.App.1973).

While the charge authorized a conviction upon the theory alleged in the indictment, it also authorized a conviction upon every other conceivable theory under § 29.02 and § 29.03 which was not alleged in the indictment. We conclude that fundamental error is reflected and the conviction based on count one of the indictment must be reversed.

For this reason, we need not discuss appellant’s remaining ground of error as to such conviction.

As earlier noted, the appeal from the conviction based on the second count of the indictment must be dismissed for want of proper sentence. If a proper sentence was in fact pronounced in the case as to the second count conviction but there was a failure to enter such sentence, it may be entered nunc pro tunc. Article 42.06, Vernon’s Ann.C.C.P. If, on the other hand, a separate sentence was not pronounced with regard to the second count conviction, the trial court may now pronounce sentence and an appeal may be taken therefrom if the appellant so desires. White v. State, supra, and cases there cited. It is observed, however, the appellant raises the same contention regarding the charge on the second count conviction as caused the reversal as to the first count conviction. The charges are exactly the same with the exception of the complainant’s name. The trial court may want to take action in accordance with Article 40.09, Vernon’s Ann.C.C.P., prior to any further effort at appeal.

For the reasons stated, the judgment as to the first count conviction is reversed and remanded and the appeal as to the second count conviction is dismissed.

DOUGLAS, J., dissents because there was no objection to the court’s charge.

      . A separate judgment should likewise be entered regarding the second count conviction if one has not been previously entered. White v. State, supra.


author: PHILLIPS, Judge.

text:
    Robert DRAGO, Appellant, v. The STATE of Texas, Appellee.
    No. 53685.
    Court of Criminal Appeals of Texas.
    July 13, 1977.

      Frank Maloney and Philip A. Nelson, Jr., Austin, for appellant.
    Robert 0. Smith, Dist. Atty. and Richard E. Banks, Asst. Dist. Atty., Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

This is an appeal of a conviction of the offense of possession of more than four ounces of marihuana. Trial was by the court with punishment being assessed at a probated term of five years’ confinement.

At around midnight on March 2, 1975, Sgt. Muennink and Officer Alexander of the Austin Police Department saw the car in which appellant was riding traveling east on Seventh Street near the intersection of that street and Interstate Highway 35 in Austin. Seventh Street at that point is one way eastbound and consists of four lanes divided down the center by a small esplanade. The car was in the lane immediately to the south of the esplanade and after it passed under the expressway overpass it turned left from that lane northward onto the expressway’s east frontage road. There were traffic signs over each of the four lanes of Seventh Street on the west side of the overpass highway. The signs over the two lanes north of the esplanade each portrayed a left turning arrow and the word “only”. The signs over the two lanes south of the esplanade, including the lane from which the car made its left turn, each portrayed an arrow pointing straight ahead. After the car completed its left turn, the officers pursued it in their own car and pulled it over. John Griffin, the driver of the car, got out and met Sgt. Muennink near the front of the police car, where Sgt. Muennink started writing Mr. Griffin a warning ticket for having made a turn from the wrong lane. Officer Alexander approached the passenger side of the stopped car to tell appellant the reason for the stop. While Officer Alexander was speaking to appellant through the open car window, he smelled the odor of marihuana and saw appellant place his hands down close to the floor of the car. Officer Alexander searched the car and found a large plastic bag of marihuana, which he seized. The marihuana was found to weigh more than nine pounds. At trial, evidence of the seizure of the marihuana was admitted over appellant’s objection that it was illegally obtained.

Appellant’s first ground of error asserts error in the overruling of his motion to suppress the alleged marihuana seized as the result of a search of appellant’s automobile upon the asserted ground that the signs in question were so uncertain as to render their inclusion within the penal prohibition of Sec. 65(c) of Art. 6701d, V.A.T.S., unconstitutional. Since said Sec. 65(c) makes unlawful the turning of a vehicle at an intersection other than as directed and required by an official traffic control device and authorizes the State Highway Commission and local authorities to place such devices within or adjacent to intersections, such devices become an integral part of said penal statute, and as such must meet the certainty requirements of due process the same as any other essential part of a criminal statute. Signs are within the definition of the term “traffic-control device”. Sec. 18(a), Art. 6701d, V.A.T.S. Whether the signs in this instance, considering their location, visibility, possible conflict with other signs, and lack of specificity, render said statute unconstitutionally vague when applied to a criminal prosecution for an alleged violation of such signs is not necessary for a determination of the legality of the search and seizure issue. Though Sec. 153, Art. 6701d, V.A.T.S., and Art. 14.01, V.A.C.C.P., both on their face, authorize an arrest on a traffic offense only for an actual violation, this Court in Soileau v. State, 156 Tex.Cr.R. 544, 244 S.W.2d 224, has construed such statutes to require only specific facts within the presence or view of an officer for him to reasonably conclude therefrom that an offense is being committed in his presence or within his view.

Appellant’s second ground of error contends that an offense was not shown to have been committed in the officers’ presence and, therefore, the stopping of appellant was unlawful and the evidence seized thereafter illegally acquired. As stated above, proof of the actual commission of the offense is not a requisite. The facts above set out were sufficient observable facts by the officers to reasonably justify said belief and, thus, afford them probable cause for the stopping of appellant. The ultimate determination of the constitutionality of a criminal statute, the reasonably apparent violation upon which an officer predicates an arrest cannot affect the existence or non-existence of probable cause for arrest. The primary purpose of the Exclusionary Rule is to deter police activity which could not have been reasonably believed to be lawful by the officers committing same. United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975). Furthermore, the sign arrangement at the scene was clearly sufficient to reasonably justify the officers in stopping appellant to warn him of the traffic hazard possibly created by his failure to comply with the arrows and was lawfully done under the temporary detention doctrine of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See Balli v. State, Tex.Cr.App., 530 S.W.2d 123; Smith v. State, Tex.Cr.App., 542 S.W.2d 420; Long v. State, Tex.Cr.App., 532 S.W.2d 591; Mann v. State, Tex.Cr.App., 525 S.W.2d 174.

In his third ground of error appellant contends that the traffic control devices were so obscure of meaning that same constituted an entrapment as a matter of law. The defense of entrapment is limited by V.T.C.A., Penal Code, Sec. 8.06, to inducement by a law enforcement agent, which is defined as personnel of the federal, state and local law enforcement agencies and their agents. The State Highway Commission and local traffic engineers would not fall within such definition. Furthermore, even if we were to hold that other signs tending to induce a person to violate the arrows in question could constitute entrapment, the evidence here, at the most, would merely raise an issue of fact as to the entrapment elements of inducement and likelihood of causing persons to commit the offense. Said ground is therefore overruled.

The judgment is affirmed.


author: DOUGLAS, Judge.

text:
    Juanita Faye Evans ZIMA, Appellant, v. The STATE of Texas, Appellee.
    No. 54771.
    Court of Criminal Appeals of Texas.
    July 13, 1977.

      J. Charles Whitfield, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., J. Richard Trevathan and Thomas M. Henderson, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from an order revoking probation. On November 13,1975 appellant entered a plea of guilty to the offense of harassment. The court assessed punishment at thirty days’ confinement, probated for six months, and a fine of $150.00.

One of the conditions of probation was that she commit no offense against the laws of the State. On January 7, 1976 the State filed a motion to revoke probation alleging that she did “ . . . intentionally communicated by telephone in vulgar, profane, obscene, and indecent language, and in coarse and offensive manner, intentionally and knowingly annoy and alarm the recipient, Lanora Pennington.” A hearing was held on March 11, 1976 wherein the court found the allegation to be true and entered an order revoking probation.

The sufficiency of the evidence to support the revocation order is not challenged. Her initial contention is that the judge who presided at the revocation hearing was disqualified due to bias against her and that he erred in refusing to recuse himself.

Judge Bill Ragan presided at the revocation hearing in County Criminal Court at Law No. 1. At the outset of the hearing, appellant requested that Judge Ragan transfer the cause to another county criminal court on the ground that the judge was disqualified. The motion for transfer was denied.

Judge Ragan stipulated that appellant called the judge’s co-ordinator while the motion to revoke was pending; that she told the co-ordinator she was not coming to Judge Ragan’s court; that he (Judge Ra-gan) picked up the telephone and discussed the matter with appellant; that during the conversation he formed the opinion that appellant was intoxicated; that he “might have told her that if she called me again while she was intoxicated I would put her ten feet under the jail”; that he had gotten similar calls from other defendants; and that he was not prejudiced against appellant as a result of the conversation.

Article 5, Section 11, Vernon’s Annotated Texas Constitution, provides, in part:

“No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such degree as may be prescribed by law, or when he shall have been counsel in the case.”

Article 30.01, V.A.C.C.P., provides:

“No judge or justice of the peace shall sit in any case where he may be the party injured, or where he has been of counsel for the State or the accused, or where the accused or the party injured may be connected with him by consanguinity or affinity within the third degree.”

In Ex parte Largent, 144 Tex.Cr.R. 592, 162 S.W.2d 419 (1942), cert. denied, 317 U.S. 668, 63 S.Ct. 72, 87 L.Ed. 536, rehearing denied, 317 U.S. 713, 63 S.Ct. 443, 87 L.Ed. 568, this Court held that Article 5, Section 11, supra, and the predecessor to Article 30.01, supra, provide the exclusive grounds for disqualifying a judge from sitting or acting in a criminal case.

It is well established that the bias or prejudice of a trial judge not based upon interest is not a legal disqualification. Aldridge v. State, 170 Tex.Cr.R. 502, 342 S.W.2d 104 (1961); Vera v. State, 547 S.W.2d 283 (Tex.Cr.App.1977). However, any indication of prejudice or opinion of guilt on the part of the trial judge requires close scrutiny of his rulings on appeal. Aldridge v. State, supra; Vera v. State, supra. But the judge’s bias, if any, standing alone, does not constitute error. Of course, a defendant could challenge an erroneous ruling rather than the prejudice which would give the defendant the right to complain. Bolding v. State, 493 S.W.2d 181 (Tex.Cr.App.1973); Vera v. State, supra.

In Chamberlain v. State, 453 S.W.2d 490 (Tex.Cr.App.1970), it was contended that the judge was disqualified because the defendant had filed a civil suit against him. This Court held that Chamberlain had shown no bias or prejudice on the part of the trial judge and no pecuniary interest in the outcome of the case and that the judge was not disqualified. The Court wrote:

“ . . .If the mere filing of a civil action against the judge presiding at a criminal case would disqualify him, then any judge would be subject to disqualification at the whim of a defendant. Such practice, if allowed, could delay or prevent the trial of a case.”

The same reasoning is applicable here. If a defendant can call up a judge and curse him out and have the judge disqualified because the judge threatens her with contempt charges, then a defendant could delay and get other judges at will. We hold that Judge Ragan was not disqualified to preside either under the Constitution or the statute.

We perceive no error because Judge Ragan did not seek an independent determination of his impartiality in this cause by another judge. Such extraordinary relief is not contemplated by either Article 5, Section 11, supra, or by Article 30.01, supra.

No abuse of discretion is shown. The judgment is affirmed.

      . We observe that where a county judge is disqualified in any criminal case pending in the court of which he is judge Article 30.03, V.A.C. C.P., provides no authority for transferring such case to another court. That article does authorize, however, selection of a special judge to try the case.


author: DAVIS, Commissioner.

text:
    Ex parte Glenn BRANCH.
    No. 54853.
    Court of Criminal Appeals of Texas.
    July 13, 1977.

      Joseph C. Hawthorn, Beaumont, for appellant.
   OPINION

DAVIS, Commissioner.

Appeal is taken from an order entered in a habeas corpus proceeding in the Criminal District Court of Jefferson County denying the relief requested.

Appellant contends that the court erred in (1) not ordering the release of appellant for lack of probable cause to believe an offense had been committed and (2) in not reducing the amount of bail.

The record reflects that appellant had been charged by complaint in the Justice Court, Precinct No. 2, Place No. 2, Jefferson County, with the offense of possession of heroin alleged to have occurred on or about February 4, 1977, and bond had been set at $500,000.00.

It has been duly brought to our attention that the appellant is now under indictment for said offense. The return of an indictment establishes probable cause as a matter of law. Therefore, the question of probable cause to hold appellant has been rendered moot. Ex parte Preston, Tex.Cr.App., 533 S.W.2d 820; Ex parte Sellers, Tex.Cr.App., 516 S.W.2d 665; Ex parte White, Tex.Cr.App., 486 S.W.2d 301.

The return of an indictment does not render moot an appeal from a habeas corpus proceeding to set or reduce the amount of bail. Ex parte Johnston, Tex.Cr.App., 533 S.W.2d 349.

The only evidence offered by the State was a stipulation that appellant had three other cases pending against him, two charging him with the offense of possession of heroin and one case charging him with aggravated assault on a peace officer; that appellant had posted bonds in the total amount of $200,000.00 in those cases; that an examining trial had been conducted in the Justice Court, bond was set at $500,-000.00 and appellant was in custody of the Sheriff of Jefferson County in lieu of posting such bond; that the “substance in question was in fact heroin”; and the transcript of the examining trial is in evidence as part of the record at this hearing. A review of the record made at the examining trial reflects that testimony offered therein relates to the matter of probable cause.

Dinah Mae Branch, wife of appellant, testified that she had contacted three bondsmen and was advised that the fee for making a $500,000.00 bond was $50,000.00. She stated that their home in which they had two thousand dollars’ equity had been deeded to a prior bondsman. They owned three cars, a 1976 Cadillac worth ten thousand dollars with a lien against it for six thousand dollars, a 1976 Ranchero which had an amount owing on it equal to its value, and a 1974 Mustang worth $2,500.00 that was debt-free. Mrs. Branch further testified that there were three or four hundred dollars in a checking account and about five or six thousand dollars in a savings account. Appellant had worked for Gulf Oil Corporation for about twenty-three years prior to his suspension from that company and owned eighty-five shares of stock worth thirty dollars a share. Prior to his arrest for this offense, Mrs. Branch stated that appellant had been working for his father in a store for five hundred dollars a month. She estimated that living expenses were approximately $685.00 a month.

The ability or inability to make bond does not, alone, control in determining the amount of bail; however, it is a factor to be considered along with others set out in Art. 17.15, Y.A.C.C.P. Ex parte Runo, Tex.Cr.App., 535 S.W.2d 188; Ex parte Clark, Tex.Cr.App., 537 S.W.2d 40; Ex parte McClellan, Tex.Cr.App., 545 S.W.2d 483. While bail should be sufficiently high to give reasonable assurance that the undertaking will be complied with, the power to require bail is not to be used so as to make it an instrument of oppression. Ex parte Bufkin, Tex.Cr.App., 553 S.W.2d 116 (1977).

We hold that under the circumstances of this ease the bail of $500,000.00 is excessive and it is hereby reduced and set in the sum of $20,000.00.

It is so ordered.

Opinion approved by the Court.


text:
    Ex parte G. W. GREEN.
    No. 54906.
    Court of Criminal Appeals of Texas.
    July 13, 1977.
    Gregory L. Hennig, Houston, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

This is an appeal from an order denying appellant’s application for writ of habeas corpus and refusing appellant’s application for bail. Appellant stands indicted for the offense of capital murder.

In order to meet its burden of proof to establish the proof is evident, the State offered the testimony of a deputy sheriff who observed the scene of the alleged offense and who interviewed appellant after he had been taken into custody. This testimony established that deceased was found in the kitchen of his home; deceased had been shot; and “the kitchen was tore up”. A written statement given by appellant was admitted into evidence over objection.

Appellant’s sister also testified at the hearing on the habeas corpus application. She stated appellant did not own a house and to her knowledge did not own a car. She stated appellant’s family would try to make a bond in the amount of $10,000.00.

Although the decision of the trial judge that the proof is evident is entitled to weight on appeal, we cannot conclude that “the proof is ‘evident’ that the jury would answer the required questions in the affirmative as required by Art. 37.071, V.A.C.C.P.” See Ex parte Wilson, Tex.Cr.App., 527 S.W.2d 310, 312; Ex parte Cevallos, Tex.Cr.App., 537 S.W.2d 744; Ex parte Hammond, Tex.Cr.App., 540 S.W.2d 328; Ex parte Derese, Tex.Cr.App., 540 S.W.2d 332. Cf. Ex parte Davis, Tex.Cr.App., 542 S.W.2d 192.

The judgment of the trial court denying bail to the appellant is reversed. Bail is set in the amount of $25,000.00.

DOUGLAS, J., dissents.


text:
    Ex parte Luther M. VASQUEZ.
    No. 55140.
    Court of Criminal Appeals of Texas.
    July 13, 1977.
    Stephen M. Orr, Austin, for appellant.
    Carol S. Vance, Dist. Atty. and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, for the State.
   OPINION

DAVIS, Commissioner.

This is a post-conviction writ of habeas corpus brought under the provisions of Art. 11.07, V.A.C.C.P.

On May 7, 1971, petitioner was convicted of possession of a narcotic drug, to-wit, heroin, and murder with malice aforethought. He was assessed punishment at ten years for each offense, with each sentence to begin October 7, 1970, and run concurrently with a federal conviction that petitioner was serving.

The record does not reflect the federal offense for which petitioner was convicted, nor the sentence therein. It appears petitioner is still incarcerated in the federal penitentiary. He contends he has been denied “good time” credit for his state convictions while in federal custody.

In Ex parte Williams, 551 S.W.2d 416 (June 1, 1977), we held that a defendant was entitled to good time credit on a state conviction for time spent in federal custody after his state conviction became final. The basis of our decision in Williams was stated as follows:

“In this day of efficient modern communications, however, we see no practical reason for denying a Texas inmate a reward for good time conduct which he earned while he was confined in another jurisdiction yet subject to the ‘constructive custody’ of the Texas Department of Corrections. We stated in Gentry v. State, supra [Tex.Cr.App., 464 S.W.2d 848], that one of the reasons good time credit is not awarded to prisoners who are not in the actual physical custody of the Department of Corrections is that Texas officials have no way to determine what reward should be bestowed on the inmate for his behavior while in the custody of some other jurisdiction. This language, while it may be appropriate where there are no records, is certainly no excuse for denying ‘good time credits’ where the records are readily available. “ ‘But for’ the federal conviction, petitioner would have been transferred to the Department of Corrections when the state conviction became final. The federal incarceration precluded ‘physical custody’ but petitioner was still in ‘constructive custody’ of the Department of Corrections. As petitioner did not have his choice of custodian, it is repugnant to Article 1, Section 19, of the Texas Constitution to deny him credit for good conduct while in the federal institution. Obviously, the records will have to be available to see if this conduct would satisfy their predicate in awarding the petitioner good time credit. . . . After sentencing has become final, the defendant is in the custody of the Department of Corrections either through ‘constructive’ or ‘physical’ detention. It is this rationale that compels this Court to require the Department- of Corrections to apply ‘good time’ credit equal to both; therefore, the Department of Corrections’ officials shall make whatever decisions are appropriate in awarding petitioner with good time credit, if any, based upon the records from the federal authorities.”

The petitioner in the instant case, unlike the defendant in Williams, is still incarcerated in the federal penitentiary and has not been transferred to the Texas Department of Corrections. He contends, however, that the Department of Corrections should be ordered to extend any “good time” credit now which has accrued to petitioner from his incarceration until the present, so that a possible delay will not result when he is transferred to the Department of Corrections from the federal institution.

We find petitioner’s request to be premature. The Texas Department of Corrections cannot decide to award petitioner “good time” until he is in “physical custody” and not merely in “constructive custody.” In Williams v. State, supra, we stated:

“There is no question that the inmate must be in the ‘physical custody’ of the Department of Corrections before ‘good time’ can be awarded for any previous confinement.”

We further stated in footnote one of Williams:

“Of course, this decision to reward good time can be made only after a prisoner has been placed in the physical custody of the Texas Department of Corrections. See Gardner v. State, supra [Tex.Cr.App., 542 S.W.2d 127].”

Once petitioner has been transferred to the Texas Department of Corrections his federal records may be reviewed and a determination made as deemed appropriate in awarding petition any good time credit for time spent in federal custody. In this way, state authorities will not be forced to continuously review petitioner’s current federal “good time” status to determine his state “good time” awards.

Petitioner’s requested relief is denied.

Opinion approved by the Court.


author: SHANNON, Justice.

text:
    PHILLIPS PIPE LINE COMPANY, Appellant, v. CLEAR CREEK PROPERTIES, INC., et al., Appellees.
    No. 12560.
    Court of Civil Appeals of Texas, Austin.
    Granted on Motion for Rehearing June 29, 1977.
    Rehearing Denied July 20, 1977.
    Kent M. Rider, Stayton, Maloney, Hearne & Babb, Austin, for appellant.
    John H. Akin, Pearce, Smith & Akin, Austin, for appellees.
   SHANNON, Justice.

The opinion of this Court filed on May 18, 1977, is withdrawn, and the following opinion replaces it.

Appellees, Clear Creek Properties, Inc., Carl Morris, Trustee, and Edward R. Rath-geber, sued appellant Phillips Pipe Line Company in trespass in the district court of Travis County. After trial to a jury, the district court entered judgment for appel-lees for $50,179.65.

Appellees pleaded that Clear Creek Properties, Inc., and Rathgeber owned two tracts of land in Travis County, one tract containing about 291 acres and the other tract containing about 215 acres. The 215-acre tract is situated to the west of and adjacent to the 291-acre tract. Appellees alleged further that in 1928, Shell Pipe Line Corporation acquired an express easement for pipe line use in a twenty-foot wide strip over the two tracts. The twenty-foot strip runs for about two miles from the west side of the 215-acre tract to the east side of the 291-acre tract. A ten-inch gas pipe line remained in place along the center line of the center stripe from 1928 to June, 1973. Appellees pleaded further that in 1953 appellant purchased the pipe line together with easement rights from Shell.

Appellees alleged that in June, 1973, without their consent, appellant entered upon appellees’ land outside the twenty-foot wide easement strip and proceeded to clear the land of vegetation and trees within a new strip about eighteen to twenty feet in width. The new strip was north of the north line of the easements and extended for two miles through both tracts of land. The clearing of the trees and vegetation occurred in connection with appellant’s laying a new gas pipe line located within the twenty-foot strip. Appellees averred that as a result of appellant’s trespass many large and valuable trees were destroyed.

Appellees pleaded that they were in the process of “developing” the land into a subdivision for mobile homes, and that the presence of the trees contributed to the desirability of the area and, as such, represented a large part of the value of the land. By reason of the removal of the trees appel-lees alleged a diminution in value of both tracts in the total sum of $36,000. After the trees were cut, appellant left large stumps. Appellees claimed appellant was liable to them for $2,500, that sum being reasonable cost of removal of the stumps. Appellees also alleged that after laying the new pipe, appellant failed to properly refill the ditch, thereby leaving a depression for the entire length of the pipe. Appellees pleaded that the reasonable cost of restoring the ground to its approximate condition before excavation was $7,000.

Appellant answered, among other things, that it acted in the good faith belief that it was legally entitled to do what it did for the reason that its acts were “. reasonably necessary for it to have the full enjoyment of its easement rights . . . ” under the express easement. Appellant also alleged that it was entitled to make such use of appellees’ land “. . .by virtue of the incidental rights which it possesses as a part of the grant contained in the original 1928 easement to repair and replace its pipeline and to have ingress and egress to and from it [the pipeline].”

Appellant, as well, filed a cross-action in which it sought, after the fact, to condemn an easement for a “temporary working space” across appellees’ lands. Such easement rights were to have commenced on April 15, 1973, and terminated on July 30, 1973.

The relevant part of the express easement is set out below.

“. . . and being a strip of land 20 ft. wide, the center line of which is 887-ft. S. 30° W. of N. E. corner of said Moore property, said point being Station # 98, plus 72, and extending S. 70° 10' E. across said property approximately in. straight line a distance of 3003-ft. to point in West line of the said Vance property at Station 128 plus 75, said point being S. 30° W. 260 ft. from N. W. corner of said Vance property on Onion Creek;
“Together with rights of ingress and egress to and from said line or lines, or any of them, for the purpose aforesaid. The Grantor reserve [sic ] the right to use and fully enjoy the right hereinbefore granted and the Grantee right hereinbe-fore granted and the Grantee hereby agrees to pay any damages which may arise to crops, timber, fences or buildings of said Grantor from the exercise of the rights herein granted, said damages, if not mutually agreed upon, to be ascertained and determined by three disinterested persons, one to be appointed by the Grantor, one by the Grantee, and the third by the two so appointed, and the award of such three persons or any two of them shall be final and conclusive.
“This instrument embodies the entire agreement between the parties hereto, including the consideration paid or to be paid therefor.”

We are not concerned in this appeal with the permissible use by appellant of the land within the confines of the easement. Appellant by the terms of the easement instrument had the right to lay the new pipe line inside the twenty-foot strip. The question, instead, is whether appellant may use ap-pellees’ land situated outside the boundaries of the easement in order to lay the pipeline within the easement.

Appellant claims that it possessed under the easement instrument the right to do those things which were reasonably necessary for it to enjoy the easement so long as appellant kept its pipe line within the twenty-foot strip. Appellant reminds us that one of the specific rights conferred upon its predecessor was the right to replace its pipe, which is coupled with the right of ingress and egress for that purpose. Appellant insists that “. . . these rights, taken together, plus with the general law that it had such other incidental and secondary rights as are necessary for it to fully enjoy the express rights of its easements, authorized it to temporarily enter on and cause injury to appellees’ property for the 13 feet outside of the described permanent 20-foot easement without being guilty of trespassing on that land.” Appellant then argues that because it rightfully used ap-pellees’ land to enjoy its easement, it was not responsible to appellees for damages to the land.

Appellees argue, to the contrary, that appellant was confined by the terms of the easement to an operation entirely within the twenty-foot strip. Any excursion by appellant outside the twenty-foot strip constituted a trespass for which appellant must respond in damages.

The scope of an express easement is determined by the same rules which are applicable to deeds and other instruments. Armstrong v. Skelly Oil Co., 81 S.W.2d 735 (Tex.Civ.App.1935, writ ref’d). In case of an unambiguous writing, the courts will give effect to the intention of the parties as expressed by or as is apparent from the writing. Wall v. Lower Colorado River Authority, 536 S.W.2d 688 (Tex.Civ.App.1976, writ ref’d n. r. e.). In the usual case, the instrument alone will be deemed to express the intention of the parties for it is the objective, not the subjective, intent which controls. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515 (Tex.1968).

The parties did not plead that the easement instrument was ambiguous, and accordingly, they did not tender evidence to explain any supposed ambiguity. Under such circumstances the courts give effect to the intention of the parties as expressed by or as is apparent in the easement instrument.

The rights of the parties in the case at bar are governed by the terms of the express easement. An examination of the language of the easement shows appellant’s predecessor was granted a twenty-foot strip of land in which it and its assigns could “. . . lay, construct, reconstruct, replace, renew, maintain, repair, change the size of, and remove pipes and pipe lines .” and in which appellant’s predecessor and its assigns could erect and maintain a single line of poles. The owner of the easement was also granted “. rights of ingress and egress to and from said line or lines, or any of them, for the purpose aforesaid.”

By the terms of the easement appellant had the “right of ingress and egress” across appellees’ land to the twenty-foot strip to lay the new pipe line. The phrase “right of ingress and egress” usually means the right to enter and the right to exit. Appellant’s activities on appellees’ land consisted of far more than merely entering upon the land to go to the twenty-foot easement strip and leaving from the easement strip to regain the public roadway. Appellant entered and occupied a swath of appellees’ land thirteen to twenty feet in width and two miles in length for a period of three and a half months. During its occupation appellant cleared that land of trees and brush. Nothing in the easement grant or the phrase “right of ingress and egress” contemplates such a use or the exercise of such dominion and control.

The easement in the case at bar is not one wherein the total width of the easement was not specified and where the location of the easement was not designated, as was the easement in Harris v. Phillips Pipe Line Company, 517 S.W.2d 361 (Tex.Civ.App. 1974, writ ref’d n. r. e.). To the contrary, and as was written before, the easement instrument involved in this appeal specified a strip twenty feet in width and designated the exact location of that strip. Appellant’s predecessor purchased the right to use a specific strip of land for the purposes set out in the easement instrument. As a result, the maximum area in which appellant could operate was known. The easement instrument did not leave the parties in a situation where the extent of the easement could never become fixed or definitely ascertainable, but instead the parties’ predecessors in title by the terms of the easement instrument fixed and made certain their rights. There is no implied easement, incidental to the grant of the express easement, which conferred upon appellant the right to occupy and cause damage to appellees’ land outside the confines of the easement strip. Appellant was a trespasser and is liable for damage done appellees’ land.

Appellant’s second point of error is that the court erred in overruling appellant’s motion for judgment based upon its cross-action in condemnation under Tex.Rev.Civ. Stat.Ann. art. 3269 (1968). The point of error will be overruled.

Appellant occupied appellees’ property from about April 15, 1973, to about July 30, 1973. Appellees filed suit in April, 1974. In an effort to justify its past occupation of appellees’ land, appellant filed its cross-action seeking to condemn a “temporary working space” for a period of time nearly a year previous. The condemnation which appellant sought was for a period commencing April 15,1973, and terminating July 30, 1973.

The authority for the exercise of the power of eminent domain is found in the statutes. Appellant claims that Tex.Bus. Corp.Act Ann. art. 2.01(B)(3)(b) and Tex. Rev.Civ.Stat.Ann. art. 6022 empower it to condemn for a “temporary working space.” Appellant points to the following portion of Article 2.01(B)(3)(b) of the Texas Business Corporation Act:

“. . . any corporation engaged as a common carrier in the pipe line business for transporting oil, oil products, gas, salt brine, fuller’s earth, sand, clay, liquefied minerals or other minerals solutions, shall have all of the rights and powers conferred by Articles 6020 and 6022, Revised Civil Statutes, 1925.”

Article 6022 provides, in pertinent part, as follows:

“Every person, firm, corporation . owning, operating or managing any pipe line, or any part of any pipe line within this State for the transportation of crude petroleum that is declared by this title to be a common carrier, shall have the right and power of eminent domain in the exercise of which he, it or they may enter upon and condemn the lands, rights of way, easements and property of any person or corporation necessary for the construction, maintenance or operation of his, its or their common carrier pipe line. . ."

We are convinced that appellant has not shown us, nor have we discovered, any statute or case law conferring upon a pipe line company the right to condemn for a “temporary working space.”

The jury answered that the value of the 291-acre tract was reduced by $30,000 by the cutting of the trees, and that the value of the 215-acre tract was reduced by $2,000 by the cutting of the trees. Appellant’s third point of error is that there is no evidence to support those answers. There was no evidence, says appellants, because the district court erred in permitting appel-lees to testify to the amount of damages sustained based on unrecorded and preliminary plats of proposed subdivisions. We will overrule the point of error.

Appellees bought the 291-acre tract because of its beautiful stand of trees. Ap-pellees’ evidence was that from the time of purchase appellees had planned to make it a very “exclusive” type of residential subdivision for mobile homes. The subdivision would be considered “exclusive” because of the trees and because the lots were planned to be extra large so that double-wide mobile homes could be placed cross-wise instead of the usual side-by-side arrangement.

It was undisputed that the highest and best use of the property was for subdivision for residential purposes. Appellees purchased the 291-acre tract in 1971 and by July, 1971, appellees had presented to the City of Austin preliminary plans for developing the 291-acre tract. By June of 1973, appellees had platted two sections out of the 291-acre tract, and sales of those lots were taking place. Although some alternatives had been considered, as of June, 1973, appellees’ plan was to continue the development of the balance of the 291-acre tract in substantially the same manner as shown in the preliminary plan. Initial development on the ground had been undertaken in June, 1973, for the first of the lots crossed by appellant’s project. The initial development consisted of rough-cut streets and the installation of utilities.

The “lots” crossed by appellant’s project were similar to the adjacent lots in the platted section of the 291-acre tract. These “lots” were similar in location, size, shape, and tree cover. As a result, appellees’ witness testified, over objection, that the “lots” crossed by appellant’s project had the same value, before the trees were cut, as those in the platted section. That value was $5,700 for each lot. After the destruction of the trees the lots had an average value of $4,500. The witness testified that the value lost to the twenty-six lots crossed by the project was $31,000.

Appellant argues that in a proceeding to determine the value of raw acreage it is improper to admit into evidence hypothetical plats of nonexistent subdivisions. We agree, but the rule is not applicable under the circumstances of this case. This case does not concern raw acreage. The preliminary plat of the subdivision of the 291-acre tract had been on file for two years prior to appellant’s invasion of the land. Actual development of the land pursuant to the preliminary plan had been under way for two years before the time of appellant’s intrusion, and appellees had commenced development in the “lots” crossed by appellant’s project by June 23, 1973. Under these circumstances, the district court concluded that it was reasonably probable that the balance of the 291-acre tract would continue to be developed in accordance with the preliminary plat and, accordingly, did not err in admitting into evidence the testimony relating to the diminution of the value of the land upon a lot basis. See City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808 (1954).

We have discussed appellant’s important points of error. The balance of those points have been considered, and as they have no merit, they are overruled.

The judgment is affirmed.


author: COLEMAN, Chief Justice.

text:
    H. A. SEARS, Appellant, v. CONTINENTAL BANK AND TRUST COMPANY, Appellee.
    No. 16803.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Jan. 20, 1977.
    Rehearing Denied Feb. 17, 1977.
    Van E. McFarland, Houston, for appellant.
    Reynolds, Allen & Cook, Joe H: Reynolds, Houston, for appellee.
   COLEMAN, Chief Justice.

This is an appeal from a judgment based on an instructed verdict for the defendant in a suit for debt. We affirm.

H. A. Sears as plaintiff sued Continental Bank and Trust Company as defendant alleging that on August 29, 1966, the defendant took $431,305.11 out of plaintiff’s general deposit account with defendant, and that defendant has refused to return the money. At the trial Mr. Sears introduced into the record a stipulation to the effect that on August 29, 1966, “the bank took $431,305.11 out of the account of H. A. Sears doing business as Sears Enterprises, Incorporated.” He then introduced without objection a copy of a ledger sheet reflecting the activity of the H. A. Sears doing business as Sears Enterprises, Incorporated for the month of August, 1966. It reflects that prior to August 29, 1966, there was a balance in said account of $431,346.11, a withdrawal of the sum of $431,305.11 as of August 29, 1966, leaving a very small balance in said account. The statement bears the legend “We have charged your checking account as follows: Apply to note of James W. Williams, Ernest M. Hall, Jr., and H. A. Sears, $431,305.11.”

The relation between Sears and the bank was that of debtor and creditor, and, as a consequence, the bank had the right to set off the amount of the deposit against an equal amount of indebtedness which the depositor owed the bank. First National Bank of Schulenburg v. Winkler, 139 Tex. 131, 161 S.W.2d 1053 (1942).

At the time the plaintiff rested, therefore, there was evidence that the bank had charged plaintiff’s account with the sum of $431,305.11 and had applied that sum to a note executed by James W. Williams, Ernest M. Hall, Jr., and H. A. Sears. The note is not in evidence, and the date on which it became due and payable was not in evidence.

Since the record relied on by the plaintiff reflects that the money withdrawn from plaintiffs account was credited to a note held by the bank on which the plaintiff was jointly liable, there is no evidence to establish that the bank wrongfully withdrew money from the plaintiff’s account, and there is no evidence to establish that the plaintiff had suffered damage in any amount. Cassidy Commission Company v. Security State Bank, 333 S.W.2d 454 (Tex.Civ.App. — Houston 1960).

Mr. Sears asserts that the trial court erred in overruling his motion to re-open under Rule 270, and in refusing to allow Sears to have his bill of exception to the court’s overruling of the motion to re-open.

After the plaintiff rested, the defendant made a motion for an instructed verdict. Counsel for both parties argued the matter. The court told counsel for the plaintiff that he did not think the plaintiff had made a case. At that time counsel for plaintiff stated: “Well, your Honor, it isn’t one for debt. If the Court will permit us, we would like to re-open and read one of the admissions of the pleadings and we will be ready to rest on that basis. We are not alleging a conversion by the bank, we are alleging an action for debt, . . .” After further argument the court stated that he was going to grant the motion for instructed verdict, at which time counsel for plaintiff again moved to re-open. The court refused to re-open the evidence. At that point plaintiff asked if he could make a bill and the court said, “Certainly.” The plaintiff then stated that he would like to read into the record certain portions of the defendant’s amended answer. The record reflects that there followed a discussion on the necessity of a bill of exceptions and the plaintiff suggested that he wished to introduce statements from a deposition of Mr. Smith, the chief executive officer of Allied Bank. It was explained to the court that the reason for the bill of exception was to make it clear in the record by excerpts from the deposition that H. A. Sears, the plaintiff in this case, was the same H. A. Sears whose account was referred to in the stipulation which was before the court.

We consider that there is in the statement of facts a bill of exception to the refusal of the trial court to permit plaintiff to re-open and present deposition testimony as evidence that plaintiff, H. A. Sears, was the same person as the H. A. Sears who maintained a bank account with the defendant bank. However, we find that reversible error was not presented by said bill of exception. The identity of the name of the plaintiff with that of the person maintaining the bank account constitutes some evidence that the plaintiff was the owner of that bank account. There was no evidence to the contrary.

Where the trial court refuses to permit a party to make a bill of exception to a ruling of the judge, the trial court commits error. State v. Biggers, 360 S.W.2d 516 (Tex.1962). Under Rule 434, Texas Rules of Civil Procedure, such an error would not result in a reversal of the case unless the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Here the plaintiff introduced evidence to show that money was withdrawn from his account at the defendant bank, but he failed to present any evidence that the withdrawal of the money from the account of the plaintiff was improper. The fact that the trial court refused to permit the plaintiff to present further evidence concerning the ownership of the account in question was not reversible error. In order to overturn the judgment rendered by the trial court it was necessary that plaintiff demonstrate from the record in this case that he had introduced evidence which, if believed, would require a judgment in his favor. The plaintiff failed to meet this burden.

The judgment is affirmed.

Order not published. Rule 452, T.R.C.P.

Writ Granted by Supreme Court June 22, 1977 and this opinion was ordered published.


author: EVANS, Justice.

text:
    SUBURBAN UTILITY CORP., Appellant, v. The STATE of Texas, Appellee.
    No. 16860.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 19, 1977.
    Rehearing Denied June 16, 1977.

      Sears & Burns, Robert L. Burns, Houston, for appellant.
    John L. Hill, Atty. Gen., J. David Hughes, David F. Bragg, Nicolas J. Perez, Asst. At-tys. Gen., Houston, for appellee.
   EVANS, Justice.

This case requires a determination of the constitutionality of Tex.Rev.Civ.Stat.Ann. art. 2372q-1 (Supp. 1976-1977).

This statute, which became effective on September 1, 1975, provided that the commissioners court of any county with a population of more than 1,500,000, according to the last preceding federal census, should regulate water and sewer rates of private water companies within and without the limits of incorporated cities and towns if (a) the private company charged or proposed to charge residential rates in any service area which exceeded by 30% or more the highest residential rate charged by the water department of the largest city in the county, or (b) a petition was submitted to commissioners court signed by at least 30% of the persons residing in one or more of the service areas requesting that the court exercise regulatory authority over the company. Acts 64th Leg., 1975, ch. 640, p. 25.

Suburban Utility Corp., a private water company within the definition of Article 2372q-l, provides water service to several subdivisions in Harris County. In January 1976 the residents of several such areas, including Castlewood Subdivision, filed a petition with Harris County Commissioners Court requesting that it regulate Suburban’s rates. After a hearing on April 23, 1976, the commissioners court adopted an order directing that the rate for water charged by Suburban to the residents of Castlewood Subdivision be “set at 30% above the rate charged by the City of Houston, but not to exceed an 8% profit as provided by law on the investments of the said Company . . .,” and further providing “that the exact dollar rate figure will be determined by the Commissioners Court’s rate consultant and adopted by the court at a later date.”

After entry of this order, Suburban continued to charge residential rates in excess of those set by the order. On July 22, 1976 Suburban filed a schedule of its rates with the Public Utility Commission of Texas, which, under the Public Utility Regulatory Act (PURA), assumed statewide jurisdiction of public utility rates and services effective September 1, 1976. Tex.Rev.Civ.Stat.Ann. art. 1446c, § 87 (Supp.1976-1977); Acts 64th Leg., 1975, ch. 721, p. 2327.

This action was instituted on September 10, 1976 by the attorney general acting on the request of the Public Utility Commission. In its original petition the State sought to enjoin Suburban from terminating water and sewer services to customers in Castlewood Subdivision, pending a ruling by the Public Utility Commission as to whether the rates charged were legal, and sought to recover civil penalties under Article 2372q-l. In its amended petition, the State alleged that the commissioners court on April 23,1976 set water rates for Suburban as shown by a supplemental exhibit dated August 12, 1976 “30% higher than that of the City of Houston outside the city limits, but not to exceed an 8% profit as provided by the law on the investments of the company.” The State asked for a temporary injunction enjoining Suburban from charging rates for water service in excess of those authorized by commissioners court, from terminating or interfering with water service being furnished to its customers pending the determination of the commission as to whether the rates were valid, and compelling Suburban to reconnect water services terminated subsequent to July 1, 1976. The State also sought civil penalties, a refund to Suburban’s customers, and a permanent injunction restraining Suburban from terminating water service pending the commission’s determination as to the legality of the rates charged.

After a nonjury trial, the trial court entered a final judgment dated November 2, 1976 enjoining Suburban from charging rates for water service to its customers in Castlewood Subdivision for the period April 3,1976 through August 31,1976 in excess of those authorized by commissioners court and from disrupting, terminating or otherwise interfering with its customers’ water service for failure to make payment so long as the customers paid water rates as set by the commissioners court.

Suburban appeals from that portion of the judgment which grants an injunction and assesses costs against it, and the State appeals from that portion of the judgment which limits the commissioners court order to the period of time specified.

In its first point of error Suburban contends that Article 2372q-l was unconstitutional and void because:

(1) The subject of the bill was not expressed in its title as required by Tex. Const, art. Ill, § 35;
(2) The Act was a local or special law in violation of Tex.Const. art. Ill, § 56;
(3) The Act contained arbitrary and discriminatory classifications with respect to the entities to be regulated as prohibited by Tex.Const. art. I, § 3, 19 and the 14th amendment to the Federal Constitution;
(4) The Act constituted an unconstitutional delegation of legislative power;
(5) The regulation of rates of a utility is a legislative function and not county business as that term is used in Tex. Const, art. 5, § 18, and the commissioners court, therefore, did not have such regulatory power conferred upon it; and
(6) The statutory provision limiting the rate or charge to a maximum of 8% per annum was confiscatory and a denial of due process of law.

In its last three points of error, Suburban charges that it was denied procedural due process at the rate hearing; that the commissioners court did not sustain its burden of offering evidence in support of rates prescribed by its order; that the order of the commissioners court was so vague, indefinite and uncertain as to be unenforceable; that the order is void because it did not set forth the reasons for the commissioners’ determination; and that there had not been substantial compliance with the statutory prerequisites to the vesting of rate making power in the commissioners court.

Under the first point of error, only appellant’s contention that Article 2372q-l was unconstitutional as a special or local law needs discussion.

A statute is not local or special within the prohibition of the constitution, even though its enforcement may be confined to a restricted area, if persons or things throughout the state are affected thereby, or if it operates on a subject in which the people at large are interested. County of Cameron v. Wilson, 160 Tex. 25, 326 S.W.2d 162 (1959); Inman v. Railroad Comm’n, 478 S.W.2d 124, 127 (Tex.Civ.App.-Austin 1972, writ refd n. r. e.).

It is the State’s position that the statute in question did not merely regulate the local affairs of one county, but rather assigned duties to the county commissioners courts which were to be performed on behalf of the state. It contends that the classification by population was constitutional because there was a legitimate purpose to be served, i. e., in counties having 1,500,000 inhabitants there would have been commissioners courts capable of handling regulatory duties with respect to utility companies operating outside the cities’ regulatory agencies.

The legislature has the constitutional power to classify on the basis of population, but the population bracket must bear a true relation to the subject and object of the act, and not merely be used as an arbitrary device to give a local law the appearance of being a general law. Miller v. El Paso County, 136 Tex. 370, 150 S.W.2d 1000 (1941); Robinson v. Hill, 507 S.W.2d 521, 526 (Tex.1974).

Suburban contends that Article 2372q-l, tested by these principles and considered in the light of the circumstances surrounding its enactment, was necessarily limited in its application to Harris County and that the statute was, therefore, unconstitutional. It argues that when population is used as a basis for classification the population bracket must be “open-ended” so that other local units may grow into the bracket as their populations increase. Suburban points out that at the time the statute was enacted, Harris County was the only county in the state with a population of more than 1,500,-000 inhabitants, according to the 1970 federal census, and that the metropolitan counties having population nearest in size to Harris County were Dallas with approximately 1,327,000, Bexar with approximately 830,000, and Tarrant with approximately 716,000.

The fact that a statute may have application to only one county at the time of its passage does not compel a determination that it is a special or local law if it is framed so as to apply to other counties in the future. Bexar County v. Tynan, 128 Tex. 223, 97 S.W.2d 467 (1936). However, when population is used as a basis for classification, the population bracket must not be based on existing circumstances only, and other local units of the state should be able to come within the application of the act upon meeting the qualifications of the population bracket. See Population Bills in Texas, 28 Texas L.Rev. 829, 835 (1950). The statute is unconstitutional as a special or local law if at the time of its enactment, the classification by population is based entirely upon existing circumstances and the application of the statute is “closed” to other local units in the future. Fort Worth v. Bobbitt, 121 Tex. 14, 36 S.W.2d 470, aff’d on rehearing, 121 Tex. 22, 41 S.W.2d 228 (1931).

It is appropriate to examine the statute’s legislative history. Article 2372q-1 was introduced in the House by representatives from Harris County, and it was originally entitled “An Act Relating to the Regulation of Certain Water Companies in Harris County . . .’’It was passed in the House on the local and uncontested calendar. The language of the bill was changed in the Senate by a senator from Harris County so that the words “Harris County” were deleted and the words “certain counties” were substituted in their place. In another place in the bill, the words “having a population of more than 1,500,000” were substituted for the words “Harris County.”

The same legislature which enacted Article 2372q-l, effective September 1, 1975, repealed that statute by its enactment of Article 1446c, effective September 1, 1976, which vested regulatory jurisdiction in the Public Utility Commission.

In State v. Hall, 76 S.W.2d 880, 884 (Tex.Civ.App.-Galveston 1934, writ dism’d), a statute limited in application to counties with a population in excess of 350,000 inhabitants according to the last federal census, and limited in life to a period of two years after the date of its passage, was held to be unconstitutional since only Harris County could be affected by the provisions of the statute, even though the act purported to be general in its scope. See also Mading’s Drug Stores v. Blanton, 78 S.W.2d 1036 (Tex.Civ.App.-Galveston 1934, writ dism’d).

It is Suburban’s position that since the. legislature repealed Article 2372q-l effective September 1, 1976, the statute’s classification by population was limited to a single year’s duration and, thus, could apply only to Harris County and was closed to all other units in the future.

The State contends, on the other hand, that it cannot be assumed that at the time of the enactment of Article 2372q-l, the legislature knew that Article 1446c would also be enacted during the session, because there was so much controversy surrounding the passage of the latter act.

Acts of the same session of the legislature should be construed together as if embodied in a single act. Martin v. Sheppard, 145 Tex. 639, 201 S.W.2d 810 (1947). Since Article 2372q-1 was repealed effective September 1, 1976, by the provision of the subsequently enacted Article 1446c, it must be considered the legislature intended to limit the life of Article 2372q-1 to a period of one year.

There exists a presumption in favor of the validity and constitutionality of a statute duly enacted by the legislature. Duncan v. Gabler, 147 Tex. 229, 215 S.W.2d 155, 158 (1948). However, it clearly appears that Article 2372q-l was at the time of its enactment a local or special law, limited in its application to Harris County for the one year period of its duration, and that it, therefore, must be declared unconstitutional. Tex.Const. art. III, § 56; Fort Worth v. Bobbitt, 121 Tex. 14, 36 S.W.2d 470, aff’d on rehearing, 121 Tex. 22, 41 S.W.2d 228 (1931); 28 Texas L.Rev. 829.

In view of this Court’s ruling that the statute was unconstitutional as a local or special law, it becomes unnecessary to consider the other grounds asserted by Suburban as to the constitutionality of the statute or its subsequent points directed at the validity of the commissioners court’s order.

The judgment of the trial court is reversed and judgment is rendered that Article 2372q — 1 was unconstitutional and did not, therefore, vest power in the commissioners court to regulate Suburban’s rates.