author: ODOM, Judge.

text:
    Earl Edward YOUNG, II, Appellant, v. The STATE of Texas, Appellee.
    No. 52544.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1977.
    Rehearing Denied March 9, 1977.

      Pat McDowell, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky and Winfield W. Scott, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated rape. Punishment was assessed at twenty years.

Grounds of error one through eight complain of improper jury argument. In six instances the trial court instructed the jury to disregard the statements of the prosecutor. In another instance the prosecutor withdrew his statement. We have reviewed the record and conclude that the court’s action and the prosecutor’s withdrawal of his statement were sufficient to cure any harm caused by the argument. A declaration of mistrial was unnecessary. Pringle v. State, Tex.Cr.App., 511 S.W.2d 35. The first seven grounds of error are overruled.

Ground of error number eight contends that the prosecutor in jury argument at the punishment stage attacked by implication appellant’s assertion of his right to a jury trial when he stated:

“I represent the police officers who would like to be patrolling your streets watching out for prowlers and what have you, but instead have to spend their time tracking the likes of him down and spending their time trying to get to the truth of the matter, going out and recovering evidence and then coming down here and spending days trying to convince a jury how guilty he is.”

This argument does not demonstrate an attack on appellant’s exercise of his right to a jury trial. The eighth ground of error is without merit.

The next two grounds of error maintain that the trial court improperly limited the appellant’s introduction of evidence concerning the prosecutrix’s prior sexual behavior. The court refused to allow the appellant to show that the victim had engaged in sexual intercourse the night before the offense. The court also excluded evidence establishing that the prosecutrix had an abortion three years prior to the rape. Finally, the appellant complains that he was not allowed to ascertain the names of two men who dated the victim at the time of trial.

Initially, we note that appellant’s trial occurred after the effective date of V.T. C.A., Penal Code Sec. 21.13. This statute provides a procedure to be followed when a defendant proposes to introduce instances of the victim’s sexual conduct in a prosecution for rape. It was not followed in the case at bar.

The court did, however, allow the appellant, through a bill of exception, to preserve error on this issue. The court concluded that the evidence was not admissible and upheld its previous decision which sustained the State's motion in limine.

We hold that the court correctly excluded the evidence. Consent was an issue in the case, but the items the appellant attempted to establish were not germane to the issue of the victim’s acquiescence, or any other issue raised by the evidence. See, Campbell v. State, 147 Tex.Cr.R. 192, 179 S.W.2d 547; Tyler v. State, 145 Tex.Cr.R. 315, 167 S.W.2d 755. The appellant’s ninth and tenth grounds of error are overruled.

Our holding on this issue is not to be used as precedent for the avoiding of the requirements of Sec. 21.13, supra. The statutory proceedings outlined in that section should be followed in each case where the defendant proposes to introduce the evi-dentiary matters listed therein. We make an exception to those requirements in the ease at bar only because the trial occurred shortly after the effective date of the statute, and because the trial court constructed a sufficient record for review of the issue.

Grounds of error eleven and fifteen contend that the trial court erred in admitting the oral confession of the appellant. First, the appellant asserts that his confession was not voluntary because he was deprived of sleep, food, warmth, and was made to believe that he would receive psychiatric help. He also asserts that his lack of experience with policemen and his “intense personal contact” with the officers on the night of his arrest rendered his confession involuntary.

A pre-trial hearing to determine volun-tariness was conducted in accordance with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, and Art. 38.22, V.A.C. C.P. The court concluded that the confession was voluntary.

The investigating officer, Charles Royal, testified for the State. Royal stated that the appellant was given his statutory and constitutional warnings. Appellant indicated that he understood these protections. The officer also stated that the appellant was only interrogated for an hour.

Royal further testified that the interrogation room was not cold and that the appellant was not mistreated in any manner.

Sergeant Parker, another police officer, also testified for the State. He said that the appellant did not complain of coldness or any other inconveniences during interrogation. The witness also said that the appellant did not demonstrate any fear, by word or by action.

The State, through its two witnesses, satisfactorily rebutted the contentions of the appellant in regard to the voluntariness of the oral confession. See and compare, Sherman v. State, Tex.Cr.App., 532 S.W.2d 634; Farr v. State, Tex.Cr.App., 519 S.W.2d 876. The court did not abuse its discretion by finding the confession voluntary. Appellant’s contention on this matter is overruled.

Appellant also contends that the oral confession was inadmissible because his statements did not lead to unknown evidence tending to establish his guilt. Article 38.22(l)(e), V.A.C.C.P.

The record demonstrates that the appellant orally confessed to the rape and then led the police to the field where he had discarded the knife used during the offense. Appellant contends, however, that the knife was never positively identified at trial and therefore was not evidence tending to prove his guilt.

The victim could not positively identify the knife held to her throat during the rape because she could not clearly see it during the offense. She did, however, give a general description of a weapon which matched the knife found in the field.

Furthermore, when an accused identifies a weapon and states that it was used during the offense, the lack of positive identification bears on the confession’s credibility, not on its admissibility. Dow v. State, Tex.Cr.App., 491 S.W.2d 917. Appellant’s assertion is without merit.

Appellant’s final argument in regard to his oral confession concerns a statement he made to the police in the field where the knife was located. Royal testified that when the weapon was found, appellant stated it was the instrument used during the offense.

Appellant’s objection to this testimony was sustained and the jury was instructed to disregard the officer’s answer. Any error was cured by the court’s action. The grounds of error on this issue are overruled.

The twelfth ground of error claims that the trial court erred in overruling appellant’s motion for new trial based on jury misconduct. Appellant argues that Art. 36.22, V.A.C.C.P., was violated by certain members of the jury.

Article 36.22, supra, provides:

“No person shall be permitted to be with a jury while it is deliberating. No person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court.” (Emphasis added.)

Appellant’s mother testified at the motion for new trial hearing. She stated that during a recess taken at the guilt-innocence stage of the trial, she overheard a comment made by one woman juror to another in the ladies’ restroom. One of the jurors allegedly said:

“Aggravated? It sounds more like cold-blooded to me.”

This statement was the only statement heard by appellant’s mother. The witness did not see who made this comment because she was in a stall at the time she heard it. No juror testified at the hearing on the motion for new trial.

This does not constitute a violation of Art. 36.22, supra. The record made at the hearing held on the motion for new trial fails to demonstrate that the single statement set out above was “about the case on trial.”

The ground of error is overruled.

Appellant next asserts that the trial court erred in denying his pre-trial motion for discovery of the names of witnesses expected to be used by the State at the punishment stage of the trial. The record establishes, however, that this motion was sustained. The judge instructed the State to divulge the names of the punishment witnesses if they were known.

The State informed the court that it did not know what witnesses it would call on punishment. The appellant never raised this issue again, nor did he object when the State called witnesses at the punishment stage.

Witnesses should be disclosed if they will be used by the State at any stage in the trial. The State, however, did not know what punishment witnesses it would call at the time of appellant’s motion requesting this information. Appellant failed to pursue this matter at a time when the State did know what punishment witnesses it would use. The ground of error is overruled.

The final ground of error contends that the trial court erred in denying a motion for mistrial made after Officer Royal bolstered the complainant’s identification by testifying that she had identified a photograph of the appellant.

Appellant’s objection to this evidence was sustained and the court instructed the jury to disregard the officer’s answer. Also the State withdrew the question which elicited Royal’s answer before the appellant voiced his objection. Furthermore, the appellant admitted his presence at the victim’s apartment on the night of the offense. The identity of the appellant was not an issue at trial. Taking all these circumstances together, we conclude that reversible error has not been shown.

The final ground of error is overruled.

The judgment is affirmed.

      . Section 21.13 provides:
      “(a) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct may be admitted under Sections 21.02 through 21.05 of this code (rape, aggravated rape, sexual abuse, and aggravated sexual abuse) only if, and only to the extent that, the judge finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.
      “(b) If the defendant proposes to ask any question concerning specific instances, opinion evidence, or reputation evidence of the victim’s sexual conduct, either by direct examination or cross-examination of any witness, the defendant must inform the court out of the hearing of the jury prior to asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible under Subsection (a) of this section. The court shall determine what evidence is admissible and shall accordingly limit the questioning. The defendant shall not go outside these limits nor refer to any evidence ruled inadmissible in camera without prior approval of the court without the presence of the jury.
      “(c) The court shall seal the record of the in camera hearing required in Subsection (b) of this section for delivery to the appellate court in the event of an appeal.
      “(d) This section does not limit the right of the state or the accused to impeach credibility by showing prior felony convictions nor the right of the accused to produce evidence of promiscuous sexual conduct of a child 14 years old or older as a defense to rape of a child, sexual abuse of a child, or indecency with a child. If evidence of a previous felony conviction involving sexual conduct or evidence of promiscuous sexual conduct is admitted, the court shall instruct the jury as to the purpose of the evidence and as to its limited use.”

      . The statement appears to satisfy the requisites of Art. 38.22, supra, because it identifies the weapon used to commit the offense, a fact unknown to the police which tended to establish the appellant’s guilt.

      . See concurring opinion in Hoagland v. State, Tex.Cr.App., 494 S.W.2d 186 at 189.


source: Caselaw Access Project

license: Public Domain

text:
    Ozie LONDON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 52657.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1977.

      Michael D. Matheny, Beaumont, on appeal only, for appellant.
    R. Stanley Coe, Dist. Atty., Kountze, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for murder; punishment was assessed at twenty-five years.

Appellant contends the trial court erred in refusing to honor his timely objection to the court’s charge for failure to instruct on the lesser included offense of criminally negligent homicide. We agree, and reverse.

On October 6, 1974, Jessie Finister was killed by a shotgun blast outside a pool hall near Silsbee in Hardin County. The evidence showed appellant and Finister had played a game of pool on a one dollar wager. Appellant won and Finister refused to pay. After an argument appellant left the premises and went to his home where he picked up the shotgun used in the killing. He took the loaded weapon back to the pool hall and confronted Finister. The State offered appellant’s oral confession to the effect that he intentionally shot Finister over the one dollar bet. Appellant testified that he held the loaded shotgun pointed at Finister when another person standing behind him hit the gun causing it to discharge. Another defense witness to the events testified to the same effect.

The issue before this Court is not the truth of appellant’s testimony: the issue is whether that testimony raised the issue of criminally negligent homicide. The facts in this ease bear a significant similarity to those presented in Dockery v. State, Tex.Cr.App., 542 S.W.2d 644. Although the prosecution in Dockery was under the former Penal Code, due to the date of prosecution we addressed the sufficiency of the evidence to prove negligent homicide under the present Code. In both cases there was evidence that a firearm was accidentally discharged resulting in the death of the person at whom it was pointed. This was held sufficient in Dockery, supra, to support a finding of guilt for criminally negligent homicide. The evidence in this case likewise raised the issue.

Criminally negligent homicide is defined in V.T.C.A., Penal Code Sec. 19.07(a):

“A person commits an offense if he causes the death of an individual by criminal negligence.”

Criminal negligence is defined in V.T.C.A., Penal Code Sec. 6.03(d):

“A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

A jury could find that appellant was criminally negligent in pointing a loaded shotgun at Finister. The State concedes in its brief that in a proper case an accused could be entitled to both a charge on accident and criminally negligent homicide. We find the facts here reveal this to be such a case. A charge on accident was not sufficient to protect appellant’s rights because it left the jury with the single alternative of finding him guilty of murder or setting him free. What was written in Esparza v. State, Tex.Cr.App., 520 S.W.2d 891, 893, is equally persuasive here:

“By charging the jury only on the defensive theory of accident, as was done here, the court left the jury no alternative but to convict the appellant of murder with or without malice, or to acquit him. .
“If the facts raise the issue of negligent homicide, then a charge on that subject, if properly requested, must be given. If the accused requests charges on both accident and negligent homicide, and there is any doubt in the court’s mind as to which issue should be submitted, the accused should be given the benefit of that doubt with charges on both being submitted.”

The judgment is reversed and the cause remanded.

DOUGLAS, J., concurs in the result.

      . The oral confession led to the discovery of the shotgun and a discharged shotgun shell. Appellant challenges the admissibility of the confession under V.T.C.A., Family Code Sec. 51.09, he being sixteen years of age when it was given. We decline to address this issue due to the state of the record before us, but in the event of a retrial Lovell v. State, Tex.Cr.App., 525 S.W.2d 511, should be consulted.


author: DAVIS, Commissioner.

text:
    Len STUEBGEN, Appellant, v. The STATE of Texas, Appellee.
    No. 52706.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1977.

      John T. White, Borger, for appellant.
    Steven F. Cross, Dist. Atty., and Dale W. Elliott, Asst. Dist. Atty., Borger, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for forgery. After the jury returned a verdict of guilty, the court assessed punishment at ten years.

At the outset, the State urges that nothing is before this Court for review because the transcription of the court reporter’s notes was not timely filed.

The record reflects that on March 11, 1975, appellant was tried, found guilty, his punishment assessed, and sentence pronounced after appellant waived the statutory ten day period to file a motion for new trial. Appellant gave notice of appeal on the same date.

The district clerk notified the attorneys for both sides that the record was complete on August 14, 1975. A motion for extension of time to file the transcription of the court reporter’s notes was filed by the court reporter on August 25, 1975. On the same date, the court granted the motion extending the time for filing the transcription until November 1,1975. The record further reflects that the trial court approved the record on August 29, 1975.

On November 1, 1975, the trial court granted another extension of time to file the court reporter’s notes until November 5, 1975. The transcription of the court reporter’s notes was filed with the trial court on November 4, 1975.

On February 18, 1976, the district clerk again notified the district attorney and the attorney for appellant that the record was complete. The record was approved by the trial court a second time on March 4, 1976. Appellant filed his appellate brief on March 8, 1976, and the record was filed in the Court of Criminal Appeals on June 29,1976.

The State relies primarily upon Conerly v. State, Tex.Cr.App., 412 S.W.2d 909, where we held:

“Appellant’s motion for extension of time to file a statement of facts filed after the record on appeal had been approved by the court — without objection, and filed with the clerk, came too late.”

In Heck v. State, Tex.Cr.App., 507 S.W.2d 737, we held that Conerly, supra, is distinguishable from a case where the trial court approves the record but subsequently grants an extension of time to file a transcription of the court reporter’s notes. We held in Heck, supra, that an order extending the time to file a transcription of the court reporter’s notes, subsequent to the trial court’s approval of the record, constitutes a supplemental approval of the record within Art. 40.09, Sec. 3, V.A.C.C.P., which provides in pertinent part:

“. . . The times herein provided for filing transcription of the notes of the reporter may be extended by the court for good cause shown, and the court shall have the power, in term time or vacation, on application for good cause to extend for as many times as deemed necessary the time for preparation and filing of the transcription, and the approval of the record after the expiration of the time provided by law for its approval shall be sufficient proof that the time for filing the transcription was properly extended, and the transcription so filed shall be construed as having been filed within the time required by law.”

Here, although the trial court approved the record on August 29, 1975, it granted two extensions for filing of the transcription of. the court reporter’s notes until November 5, 1975. The trial court approved the record for a second time on March 4, 1976. We find that the order extending the date for filing the transcription and the second approval by the trial court of the record, long before it was transmitted to this Court, constituted a supplemental approval of the record. See Heck v. State, supra.

Appellant in his sole ground of error challenges the sufficiency of the evidence, contending that the State has failed to show that he acted with intent to defraud or harm another.

Maxine Nicholas, an employee of Holt Food Company, testified that on December 5,1974, she cashed a check for appellant for $81.00. The check was made payable to appellant and “Bill Chitwood” was shown as maker of the check. Nicholas did not know who wrote the check. The check was later returned to Holt Food Company stamped, “signature forged.” Bill Tom’ Chitwood testified that the check passed was his personalized cheek, but that the signature on the check was not his. Chit-wood stated that appellant was an employee of his contracting firm in November and December of 1974, that Chitwood kept his checkbook in his pickup, and that three to five employees rode in his pickup daily during that period, including appellant. Chit-wood further stated that it was his usual practice to personally pay his employees weekly by cheek. He could not recall having another employee hand out the checks during November and December, 1974, even though he could recall such an occurrence sometime in the summer of 1974. Chitwood was not familiar with the handwriting of any of his employees. Testifying at the guilt stage of the trial, Chitwood stated that he would “hire him [appellant] back” if he had a “job going.”

V.T.C.A. Penal Code, Sec. 32.21(b), provides that a person commits the offense of forgery if he “forges a writing with intent to defraud or harm another.” Thus, a necessary element of forgery is that an accused have the intent to defraud or harm another. In a prosecution for forgery, the burden is on the prosecution to prove every element of the offense charged, Reed v. State, Tex.Cr.App., 533 S.W.2d 35. Scienter may be established by circumstantial evidence. 25 Tex.Jur.2d, Forgery, Sec. 57 (1961).

Our former Penal Code defined the elements of passing a forged instrument to be: (1) A person must pass as true (2) a forged instrument in writing, (3) knowing that it was forged at the time of the passing. Articles 996, 979, V.A.P.C.; Byrom v. State, Tex.Cr.App., 528 S.W.2d 224. Thus, the former statute did not denominate the culpable mental state to be intent to defraud or harm.

In Jones v. State, 545 S.W.2d 771 (1975), this Court, while holding (on motion for rehearing) that an indictment was not fundamentally defective (under Sec. 32.21(b), supra) for failing to allege that the defendant passed the check knowing it was forged, found that, “. . . knowledge that the instrument is forged is an element which is strongly implied in the statutory definition of forgery.”

V.T.C.A. Penal Code, Sec. 6.03(a), states that “A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.”

When the intent to defraud is the gist of the offense, the State must prove facts from which such an intent is deducible beyond a reasonable doubt and, in the absence of such proof, a conviction will not be justified. Arnwine v. State, 167 Tex.Cr.R. 386, 320 S.W.2d 353.

While the requisite culpable mental state under Sec. 32.21(b) is “intent to defraud or harm,” we fail to perceive how such culpable mental state can be shown absent proof of knowledge that the instrument is forged.

In Colburn v. State, Tex.Cr.App., 501 S.W.2d 680, evidence was found sufficient to show that defendant knew the check was forged where there was proof that extensive investigation revealed that no person could be found possessing the name listed as maker of the check, the defendant had represented that the check was for hauling pulpwood, and that it was a “good check.”

In Golden v. State, Tex.Cr.App., 475 S.W.2d 273, proof was found sufficient where the defendant stated, when passing the check, that the maker was an insurance man and the evidence reflected that the man listed as maker of the check was fictitious.

Evidence was held sufficient to show knowledge that the instrument was forged in Phillips v. State, Tex.Cr.App., 488 S.W.2d 97, where the defendant falsely represented himself as payee of the check, endorsed it in the presence of the supermarket cashier, and gave false information about the maker of the check to the supermarket manager.

In Hilton v. State, Tex.Cr.App., 443 S.W.2d 843, evidence that the check was stolen from defendant’s roommate, and that the defendant had possession of the check and falsely stated that it was a check from his roommate for rent at the time of cashing the check, was held sufficient to show that the defendant knew the check was forged and to support conviction for passing as true a forged instrument.

In Castanuela v. State, Tex.Cr.App., 435 S.W.2d 146, cited by appellant, it was held that the fact that defendant “cashed the forged check in question and endorsed his name thereon, with an incorrect address, is sufficient to warrant the jury’s conclusion that he knew the check was a forgery when he passed it.”

In the instant case, the record reflects that appellant made no statement from which it could be inferred that he knew the instrument was forged. Appellant was listed as the payee, and appellant did not falsely represent himself. No evidence was introduced to show that anything appearing on the check was in appellant’s handwriting. Although appellant had access to Chitwood’s checkbook, and Chitwood normally paid his employees personally, we do not find that this evidence is sufficient to discharge the State’s burden of showing that appellant acted with intent “to defraud or harm another.”

We do not find the evidence sufficient to show that appellant knew the instrument he passed was forged. If there be other means of showing intent “to defraud or harm another” in cases such as this, which we are presently unable to envision, the record in the instant case is devoid of same.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

      . The court instructed the jury in its charge that they must find beyond a reasonable doubt, . at the very time the defendant passed the instrument in question to Maxine Nicholas, if he did, he knew the same was forged, if it was, . . . ■


author: ROBERTS, Judge.

text:
    Richard Hernandez RAMOS, Appellant, v. The STATE of Texas, Appellee.
    No. 52899.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1977.
    Robert D. Hudnall, Dallas, for appellant.
    Henry Wade, Dist. Atty.; Gary M. Love, Robert C. Hinton Jr., Dale G. Markland, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for burglary of a building. V.T.C.A., Penal Code, Sec. 30.02. After finding appellant guilty, the jury assessed his punishment at seventeen years.

The evidence was that at about eight o’clock on a Sunday night the complaining witness and a Dallas police officer, after responding to a silent burglar alarm, found appellant hidden in the complainant’s lumber store. The back door of the store had been broken into, and a window between the back room and the room in which appellant was found had also been broken. Appellant was found hidden behind a desk; he was wearing gloves taken from the store’s stock. In one of his pockets was a screwdriver, also taken from the store’s stock. The officer testified that the appellant was intoxicated.

The appellant testified that he had been drinking all day Sunday. He went to the house of his estranged wife early in the evening and found that, without his knowledge, she had moved and taken their children with her. He testified that he then “remember[ed] walking down Mercedes Street and then the next time I remember, I was in the lumber yard.” Appellant stated that he did not remember breaking in the lumber yard; he claimed only that he was “mad and drunk.”

Appellant’s sole contention is that “he was intoxicated to such an extent, that he failed to have the requisite intent necessary to commit a burglary.” Appellant acknowledges that Texas law has long been contrary to his contention, see Art. 36, V.A.P.C. (1925), but urges that we overrule a long line of cases in order to uphold his contention. This we decline to do, especially in light of the Legislature’s recent enactment of Section 8.04 of the new Penal Code. That section provides that voluntary intoxication is not a defense to the commission of a crime, but may be relied upon as a mitigating factor at the punishment phase of the trial. See also V.T.C.A., Penal Code, Sec. 8.01; Hanks v. State, 542 S.W.2d 413, 416 (Tex.Cr.App.1976); Hart v. State, 537 S.W.2d 21 (Tex.Cr.App.1976).

Appellant’s contention is overruled.

The judgment is affirmed.

      . Appellant cites Evers v. State, 31 Tex.Cr.R. 318, 20 S.W. 744 (1892) as the principal authority in this group of cases.

      . Section 8.04 thus appears quite clearly to have been a recodification of existing law, albeit in somewhat altered language. See Searcy and Patterson, Practice Commentary to Section 8.04, V.T.C.A., Penal Code; see also Art. 36, V.A.P.C., supra; Hanks v. State, 542 S.W.2d 413, 416 (Tex.Cr.App.1976); Hart v. State, 537 S.W.2d 21 (Tex.Cr.App.1976).


author: BROWN, Commissioner.

text:
    Roger TIDWELL et al., Appellants, v. The STATE of Texas, Appellee.
    No. 52905.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1977.
    Jackson & Levy, Denton, for appellant.
    John E. Lawhon, County Atty. and Marvin B. Waage, Asst. County Atty., Denton, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from convictions for taking fish from public waters by the use of an illegal gill net under the provisions of the Texas Parks and Wildlife Code. Appellants were tried before a jury and assessed fines of $200 each by the trial court.

Appellant Roger Tidwell was charged by complaint with taking fish from the waters of the Garza-Little Elm Reservoir by the use of an illegal net. Tidwell’s son Michael and the son’s friend, Larry Sikes, were charged by complaint with assisting in the taking of fish from the Garza-Little Elm Reservoir by the use of an illegal net. All three appellants were tried before a justice of the peace of Denton County, Roger Tid-well on a plea of not guilty, and the younger Tidwell and Sikes on pleas of guilty. All three were found guilty and assessed fines of $202.50. All three appealed their convictions to county court and were tried jointly, in a trial de novo, before a jury.

The evidence reflects that agents of the Texas Parks and Wildlife Department were keeping Roger Tidwell under surveillance during the early morning hours of December 17, 1975. The agents stated that they followed him to a lake known as the Garza-Little Elm Reservoir, or old Lake Dallas, where they concealed themselves on shore to observe Tidwell through high-powered scopes. They stated that they observed Tidwell in a boat running a gill net and removing fish from the net and placing them in his boat. The agents said that after a period of time Tidwell ceased collecting fish and piloted his boat into an area of the lake known as the Graveyard Slough where he passed out of their vision. They said that they did not see Tidwell again that day.

Warden Swede Johnson of the Parks and Wildlife Department testified that he was called by his supervisor to go to the Lake-view Airport on the shores of the reservoir. He stated that he drove into the area and observed a pick-up truck driving out of the area near Graveyard Slough with two large barrels in the back. He stated that the area where he saw the truck was government land and he thought that the truck might be there dumping trash on government property, so he approached the truck to speak with the two occupants. He stated that as he got out of his car and walked toward the truck he observed that the two barrels were full of buffalo fish, alive and still wet. He identified the occupants of the truck as appellants Michael Tidwell and Larry Sikes. It appears from the record that Johnson did not arrest the young men at this time. He testified that he asked them if they had seen any of the other wardens in the lake, area and then went with them to a nearby cafe for coffee. Johnson said that a short while later they were joined by the other wardens who had been watching Roger Tidwell, and these wardens placed the young men under arrest. Later that day the wardens returned to the lake and retrieved the net which they described as a 600 foot gill net. A gill net was defined as a net with weights on the bottom and floats on the top which will suspend the net in the water. When a fish passes into the net, its gills are caught by the mesh so that it cannot withdraw.

Section 66.101 of the Texas Parks and Wildlife Code provides:

“(a) No person may catch fish in public fresh water by any method or by the use of any device except as authorized by this section.
“(b) The following methods and uses are authorized:
“(1) the use of the ordinary hook and line or trotline;
“(2) the use of a minnow seine not longer than 20 feet, for the taking of bait only;
“(3) the use of a minnow seine not longer than 20 feet, dip net, cast net, and umbrella net of meshes of any size for the purpose of catching bream, shad, carp, suckers, gar, and buffalo fish only;
“(4) the use of a trammel net, a drag or set net, or seine having meshes the sides of which are at least three inches long;
* * sfc * ⅜ *
“(c) A person who violates this section is guilty of a misdemeanor and on conviction is punishable by a fine of not less than $25 nor more than $100.”

Section 61.054 of the Parks and Wildlife Code provides that the Parks and Wildlife Commission can regulate the taking of wildlife resources by proclamation of the commission setting forth the methods and means that may be used to take the wildlife resources and the region, county, area or portion of a county where the wildlife resources may be taken.

Section 1.08 of the Statewide Hunting, Fishing and Trapping Proclamation No. A-3, 1975-76, which was introduced into evidence and made a part of the record filed in this Court, states,

“Taking or attempting to take any fish or game in counties enumerated under Part I, Section 1.01, Subsection 1 through 10, by any means other as hereinafter (sic) set forth shall be unlawful, except under the fish management contracts with the Parks and Wildlife Department for removal of rough fish . . .”

Under Section 1.01(6), Denton County is placed in the Possum Kingdom Regulatory District. In Section 7.04 of the proclamation it is stated,

“It is unlawful to take or attempt to take any fish by any means or method except as specifically allowed in this section
aft * * * ⅝: *
“In the Possum Kingdom . . . Regulatory District, only the following means and methods may be used in taking fish:
“(a) Not more than one hundred (100) hooks altogether which may be used in any combination of the following: Pole and line, rod and reel, artificial and natural baits, jug line, or throw line and not more than two (2) non-metallic trotlines with not more than fifty (50) hooks each; hooks on throw lines and trotlines must be spaced not less than three (3) horizontal feet apart. All freshwater trotlines must be identified by a legible tag, constructed of a material as durable as the trotline, bearing the name and address of the fisherman and the date it was set out .
Any net used in the public waters by sports fishermen shall be identified by a legible tag constructed of a material as durable as the net, bearing the name and address of the fisherman and date it was set out. Any trotline set in the public waters of this state in violation of any section of this proclamation shall be removed from the waters thereof . . . ”

Finally, Section 12.01 of the proclamation provides for a penalty of not less than $25 nor more than $200 for a violation of the proclamation.

The general provisions of Section 66.101, supra, and the specific provisions of Section 7.04, supra, clearly set out the authorized methods for the taking of fish from the waters of Denton County. The use of a 600 foot gill net is not authorized by either provision, and, therefore, the evidence, as set out above, is sufficient to establish a violation.

In grounds of error one through, three, appellants contend that the trial court erred in admitting into evidence over appellants’ objections the pleas of guilty entered by Michael Tidwell and Larry Sikes in justice court.

Under the provisions of Article V, Section 16 of the Texas Constitution, and Article 44.17, Vernon’s Ann. C.C.P., there shall be a trial de novo in county court in all appeals from justice court, the same as if the prosecution had been originally commenced in county court.

In Ex Parte Jones, 128 Tex.Cr.R. 380, 81 S.W.2d 706 (Tex.Cr.App.1935), this Court held that in a trial de novo in the county court, “the evidence must be heard, and the verdict and judgment rendered in accordance with law in the superior court, without regard to the evidence, plea, or manner of conduct the trial took in the lower court.”

It was clearly error for the trial court to admit the guilty pleas of appellants Michael Tidwell and Larry Sikes. Since they pled guilty to “assisting in the taking of fish . . the admission of those pleas before the jury in a joint trial where Roger Tidwell was charged with “taking fish . . . ” was prejudicial to Roger Tidwell as well.

The judgments are therefore reversed and the causes remanded. Tex.Const. Art. V, Sec. 16; Article 44.17, Vernon’s Ann. C.C.P.; Ex Parte Jones, supra.

Opinion approved by the Court.


author: ODOM, Judge. ONION, Presiding Judge,

text:
    Billy Franklin NEWCOMB, Appellant, v. The STATE of Texas, Appellee.
    No. 53664.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1977.
    Michael R. Gibson, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and James C. Butts, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty. and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from an order revoking probation.

Appellant was convicted of felony theft; punishment was assessed at five years, and appellant was placed on probation. One condition of his probation was that he commit no offense against the laws of Texas. Probation was revoked for a violation of this condition upon the State’s motion alleging commission of the offenses of burglary of a habitation and theft.

Appellant first contends the revocation is invalid because he was denied a speedy hearing on the State’s motion. The motion was filed on October 30, 1975; the hearing was conducted and probation was revoked on May 28, 1976. Appellant was not free on bail. Under this circumstance the Legislature has set a time limit within which the motion must be heard in Article 42.12, Sec. 8(a), V.A.C.C.P., which provides in part:

“If the defendant has not been released on bail, on motion by the defendant the court shall cause the defendant to be brought before it for a hearing within 20 days of filing of said motion, and after a hearing without a jury, may either continue, modify, or revoke the probation.” (Emphasis added.)

This statute provided appellant with the means to secure a prompt hearing on the motion to revoke. See Ex parte Trillo, Tex.Cr.App., 540 S.W.2d 728. The record re-fleets no such motion filed by appellant. We therefore overrule appellant’s contention that the length of delay denied him a speedy hearing as a matter of law. We also decline to set a time limit within which a motion to revoke probation must be heard.

In reaching this disposition we restrict ourselves to the contentions urged in appellant’s brief. Appellant asserts that the length of delay in his case constituted a denial of a speedy hearing as a matter of law, and urges this Court to set a time limit within which a motion to revoke probation must be heard. He does not contend that the particular facts of his case show a denial of a speedy hearing under the balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). His failure to rely on Barker v. Wingo is understandable in light of the fact that the matter was not made an issue in the trial court and accordingly the record was not developed on this point.

We decline to address the issue sua sponte and thereby also decline to establish precedent for considering unassigned Barker v. Wingo error in every case where there has been a delay of the duration shown in this case. If we were to consider this issue, which by nature of the applicable balancing test requires a full development of the facts, on our own motion, it would be necessary to abate the case for a full hearing on the matter. We could not render a considered judgment on the matter without a fully developed record, and this is particularly so where, as here, the parties never made it an issue, did not present evidence on the matter, and would have been utterly without notice, prior to judgment in this Court, that a binding judgment between the parties would be entered on the matter. We are not saying that we would order a hearing if the issue' were asserted without prior development in the record, but only that no judgment on the merits of the issue sua sponte should be entered without an evidentiary hearing first.

For these reasons we restrict consideration of the speedy trial issue to the matters asserted by appellant.

Appellant next contends the trial court erred in admitting his confession into evidence. Reliance is placed on Sherman v. State, Tex.Cr.App., 532 S.W.2d 634. Appellant testified on the issue of voluntariness that he confessed because he was told by Lee Glasscock, the interrogating officer, that if he did not confess he would be charged with a first degree felony punishable by five to ninety-nine years or life, and that if he did confess he would only be charged with a third degree felony punishable by two to ten years’ confinement. The State called Glasscock who specifically denied appellant’s assertions. This satisfied the burden that was not met in Sherman v. State, supra, and Farr v. State, Tex.Cr.App., 519 S.W.2d 876.

The second contention is overruled.

Finding no abuse of discretion, we affirm.

ONION, Presiding Judge,

concurring.

Appellant was convicted of felony theft on May 4, 1973, and his punishment was assessed at five (5) years. The imposition of the sentence was suspended and the appellant was placed on probation subject to certain conditions, including:

“(2) Commit no offense against the laws of this or any other State or of the United States.”

On October 30, 1975 the State filed a motion to revoke probation alleging violations of probationary condition # 2. On May 28, 1976 the court conducted a hearing on the motion and revoked probation, finding that on October 13, 1975 the appellant had committed the burglary of a habitation and also on the same date had unlawfully operated an automobile without the owner’s consent.

On appeal appellant contends “The Court erred in considering State’s Motion to revoke Appellant’s probation because, as a matter of law, Appellant was denied a speedy hearing in said matter.”

The right of an accused in a criminal case to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and is applicable to the states by virtue of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 576, 21 L.Ed.2d 607 (1969); Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); McKinney v. State, 491 S.W.2d 404 (Tex.Cr.App.1973). There is also a corresponding right independently set forth in the Texas Constitution. See Article I, § 10, State Constitution, Vernon’s Ann.St. See also Article 1.05, Vernon’s Ann.C.C.P.

There can be no question that a probationer is entitled to a speedy hearing with regard to revocation proceedings. Ross v. State, 523 S.W.2d 402 (Tex.Cr.App. 1975); McClure v. State, 496 S.W.2d 588 (Tex.Cr. App. 1973); Hilts v. State, 476 S.W.2d 283 (Tex.Cr.App. 1972).

It is true that Article 42.12, § 8(a), Vernon’s Ann.C.C.P., as amended by Acts 1975, 64th Leg., p. 1243, ch. 467, eff. June 19, 1975, provides that after the filing of a motion to revoke probation the probationer, who has not been released on bail, may by motion cause the court to have him brought before the court within 20 days of filing of said motion for a revocation hearing. And it has been held that where the court does not comply with the terms of the statute after the filing of such motion, the motion to revoke will be dismissed. Ex parte Trillo, 540 S.W.2d 728 (Tex.Cr.App.1976).

While the use of provisions of Article 42.12, § 8(a), supra, is an effective way for a probationer (not on bail) to insure a speedy hearing on the revocation motion, the mere failure of a probationer (not on bail) to utilize this procedure does not answer the contention that a speedy trial has been denied. As will be pointed out, a defendant’s assertion of or failure to assert his right to a speedy trial is only one factor to be considered in determining whether the defendant has been deprived of a speedy trial. Thus while the appellant (not on bail) did not seek to use the provisions of Article 42.12, § 8(a), supra, this failure is only one factor to be considered in passing upon appellant’s contention.

A “balancing test” for the determination of the federally protected constitutional right to a speedy trial in which the conduct of the prosecution and the defendant is weighed was set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). This “balancing test” has also been applied to the state protected constitutional right to a speedy trial or to a speedy hearing on revocation motions. Some factors that the court should consider in applying the “balancing test” are: (1) length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant. See Barker v. Wingo, supra; Pete v. State, 501 S.W.2d 683 (Tex.Cr.App.1973); McKinney v. State, supra. In Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973), it was made clear that none of these factors have “talismanic qualities” and, in particular, that a showing of prejudice is not sine qua non to demonstrating a denial of the right of speedy trial. See also Davison v. State, 510 S.W.2d 316, 319 (Tex.Cr.App.1974); Ross v. State, supra (footnote # 1).

As to the length of delay, it is observed that the revocation motion was filed on October 30, 1975. The hearing on said motion was conducted on May 28, 1976, indicating a delay of almost seven months.

As to the reason for delay, the record reflects that on December 1,1975 the cause was passed by agreement to December 11, 1975 for “pre trial” matters and to December 23,1975 for the revocation hearing. On December 18, 1975 appellant’s counsel filed a motion for “continuance” alleging appellant was in the hospital. The revocation hearing was then set for January 23, 1976. What transpired on that date is not reflected by the record. On March 23, 1976 the cause was passed by agreement to April 16, 1976. The record fails to reflect what occurred on that setting, but on May 21, 1976 the court set the hearing for May 28, 1976, at which time the hearing was conducted.

Thus the record is silent as to the reason for the delay except appellant’s hospitalization and the several agreements of counsel to pass the cause. The record does not support any deliberate effort by the prosecution to delay the revocation hearing. It cannot be said that the delay was such as to demand a per se determination of a violation of the constitutional right to a speedy revocation hearing. Haas v. State, 498 S.W.2d 206, 211 (Tex.Cr.App.1973).

The record fails to reflect any effort or attempt by the appellant to speed up the criminal process until the date of the revocation hearing when for the first time he orally moved to dismiss the revocation motion for lack of a speedy trial.

Of course, a failure to demand a speedy trial does not waive that right. As pointed out in Barker v. Wingo, supra, a defendant’s assertion of or failure to assert such right is only one of the factors to be considered in making an inquiry into whether there has been a deprivation of the right to a speedy trial. It does not appear in the instant case that the appellant made any diligent or repeated efforts to obtain a speedy trial. Dickey v. Florida, supra.

In determining prejudice to a defendant, we must consider the interest of a defendant, which the speedy trial right was designed to protect: (1) to prevent oppressive pre-trial incarceration; (2) to minimize anxiety and- concern of the defendant; (3) to limit the possibility that the defense will be impaired. Appellant, however, has made no showing how he was prejudiced, if he was. Haas v. State, supra; McKinney v. State, supra.

Having considered the four factors mentioned in Barker v. Wingo, supra, and finding no other circumstances that are relevant, I conclude in applying the “balancing test” appellant was not denied his right to a speedy revocation hearing. See George v. State, 498 S.W.2d 202 (Tex.Cr.App.1973); McCarty v. State, 498 S.W.2d 212 (Tex.Cr.App.1973).

For the reasons stated, I concur.

ROBERTS, J., joins in this concurrence.


author: QUENTIN KEITH, Commissioner.

text:
    James McDOUGALD, Appellant, v. The STATE of Texas, Appellee.
    No. 53667.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1977.
    John Judge, Amarillo, for appellant.
    Thomas A. Curtis, Dist. Atty. and Bruce P. Sadler, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

QUENTIN KEITH, Commissioner.

The appeal is from an order revoking probation. On July 26, 1974, appellant was convicted of criminal mischief in that he damaged and destroyed a motor vehicle, such damage causing a pecuniary loss in excess of two hundred dollars; and, upon his plea of guilty, his punishment was fixed at confinement for two years probated. Among the conditions of his probation was one that he commit no offense against the laws of this state.

On December 9, 1975, the State filed a motion to revoke probation, there being several allegations in the motion, only one of which is material to this opinion: that on or about December 5,1975, appellant knowingly and intentionally carried a handgun on and about his person. At the hearing, appellant pleaded not true to the charges in the motion.

At the conclusion of the hearing, the trial court entered an order revoking probation and sentenced appellant to confinement for two years. The appeal is prosecuted upon a single ground of error:

“The trial court committed reversible error by receiving into evidence the fruits of the search of the appellant’s vehicle for the reason that the arresting officer did not have a warrant or probable cause to stop appellant’s vehicle for the purposes of arrest, search or investigation.”

After carefully reviewing the record and the applicable authorities, we agree, and the judgment of the trial court is reversed for the reasons now to be stated.

The only evidence material to the revocation came from Amarillo Police Officer Austin W. Brown who stopped appellant while he was driving his pickup truck on IH — 40 in Amarillo at about five o’clock in the morning. Officer Brown found a pistol in plain view in appellant’s truck after it was stopped. Appellant was then arrested, taken to jail, and the proceedings to revoke probation were begun.

About two o’clock in the morning of December 5, 1975, Officer Brown was assigned as a “back-up man” to go to the scene of a disturbance at a house located at 4303 East 32nd Street in Amarillo. When he arrived at the address mentioned, he saw appellant, his girl friend, and other police officers talking inside the house. Brown said that the disturbance was caused by a “difference of opinion” between appellant and his girl friend. Appellant was advised by the officers to leave the house and Officer Brown saw him leave driving a pickup truck.

About three hours later that same morning, while Officer Brown was west-bound on the north frontal road of IH — 40, he noticed appellant enter the freeway and proceed in a west-bound lane thereof. Brown turned and entered the freeway and stopped appellant who immediately got out of the truck and met Brown at about the left rear fender of the pickup truck.

Upon direct examination, Brown testified:

“A. I asked the subject [appellant] if it was possible if I could look at his vehicle.
“Q. And what did he say?
“A. He said, ‘Sure, go ahead.’
“Q. Officer, did you find anything in his vehicle?
“A. Yes, sir, I made a visible search outside, looking inside through the window, and on the passenger’s side floorboard I found a .38 caliber revolver.” (emphasis supplied)

Brown also told of finding five expended shells in the pistol and his arrest of appellant whom he carried to the jail.

Upon cross-examination, Brown testified that although he had heard of another disturbance at the East 32nd Street address, he had no knowledge of appellant’s having been involved therein, since he left that address after appellant several hours earlier. Brown frankly admitted that (1) he did not know where appellant had been since he left the house earlier; (2) that he did not see appellant commit any traffic violations; (3) that he was not driving erratically; (4) that street lights provided adequate lighting at the place of the arrest; (5) he had no warrant for his arrest; (6) that he had no idea that appellant had done anything wrong; and (7) that appellant was just riding around.

Appellant testified only for the limited purpose of showing that there was an illegal arrest, search and seizure. He denied knowledge of the whereabouts of the pistol in the truck. The trial judge concluded that appellant had consented to the search and overruled appellant’s objection to the admission into evidence of the pistol which Officer Brown found in the vehicle. Counsel has preserved, properly, the contention at all appropriate steps in the proceedings.

Upon submission of the cause, appellant’s counsel made it plain that he urged only the single contention: that Brown had no authority to stop him under the circumstances shown in this record and that consent was not in issue. State’s counsel, in his brief and argument, has placed great emphasis upon Brown’s testimony that his was a consensual search and that the pistol was in plain view. He does not directly answer appellant’s contention that Brown had no authority to stop appellant. As presented by appellant, consent and plain view are of no consequence in this case.

We are not convinced that Officer Brown effected a “pretext arrest”. See Hooper v. State, 533 S.W.2d 762, 767 (Tex.Cr.App.1975). Cf. Hampton v. State, 511 S.W.2d 1, 3 (Tex.Cr.App.1974). Nor was appellant stopped in connection with a traffic violation, as considered in Wood v. State, 515 S.W.2d 300, 306 (Tex.Cr.App.1974), or Borner v. State, 521 S.W.2d 852, 854 (Tex.Cr.App.1975). See also, Greer v. State, 544 S.W.2d 125, 127 (Tex.Cr.App.1976).

Appellant had violated no traffic law, as in Borner, supra (traveling 78 miles per hour in a 70-mile zone); nor had he run a stop sign, as in Wood, supra; nor had he driven strangely as in Greer, supra.

Under the facts related by Officer Brown, he was not authorized to make an investigatory stop of appellant. See Mann v. State, 525 S.W.2d 174, 176 (Tex.Cr.App.1975). Appellant committed no crime in Brown’s presence and Brown had no knowledge that appellant had committed a crime. Under these circumstances, this language found in Leighton v. State, 544 S.W.2d 394 (Tex.Cr.App.1976), is applicable:

“The inarticulate hunch, suspicion or good faith of an arresting officer is insufficient to constitute probable cause for an arrest, search or temporary detention.”

See also, Brown v. State, 481 S.W.2d 106, 110 (Tex.Cr.App.1972); Hall v. State, 488 S.W.2d 788, 789 (Tex.Cr.App.1973).

We say, as was said in Leighton v. State, supra:

“The record does not reveal specific and articulable facts and circumstances such as to justify Officer Bruce’s [Brown’s] initial stop of appellant’s vehicle. The trial court erred in permitting Officer Bruce [Brown] to testify as to what he observed after he detained appellant.”

The judgment is reversed and the cause is remanded.

Approved by the Court.

      . Although the motion to revoke probation contained other grounds, State’s counsel was unable to prove the truth thereof. Although appellant sought findings of fact, none were filed. The trial court did, however, note in the record: “THE COURT: I would hear any argument or statement by the State or the defense. I will say that, of course, under the present record, the only thing in the record that we are looking at is the carrying of the firearm.
      “MR. SADLER [State’s counsel]: Yes, Your Honor.
      “THE COURT: There is no evidence whatsoever on the other four [grounds set out in the motion to revoke probation],
      “MR. SADLER: Yes, Your Honor. The State would address ourselves to that issue.”


author: DOUGLAS, Judge.

text:
    Ex parte Robert Leon DAVIS
    No. 53840.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1977.
    Carol S. Vance, Dist. Atty, Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is a post conviction habeas corpus proceeding in which petitioner seeks release from confinement in the Texas Department of Corrections as a result of his conviction for four cases of robbery by assault under the former Penal Code.

Appellant was convicted in Causes Nos. 186,492, 186,493, 186,444, and 186,496 on March 2, 1973, upon pleas of guilty. Punishment was assessed in the first three cases at twenty years and at ten years in the fourth.

In the petition for writ of habeas corpus he alleges that the indictments in all four instances are fundamentally defective. The State concedes in its brief that unless this Court is willing to reconsider its holding in Bouie v. State, 528 S.W.2d 587 (Tex.Cir.App.1975), the indictments in the challenged cases are fundamentally defective. As in Bouie v. State, supra, and Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973), the indictments here fail to allege to “whom the property allegedly taken belonged.”

The relief sought is granted.

      . The writer did not and does not agree with the decision in Bouie but is bound by it. See the dissenting opinion in Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App., 1976).


author: RALEIGH BROWN, Justice.

text:
    Joseph C. BOND, Appellant, v. Geneva BOND, Appellee.
    No. 4957.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 10, 1976.
    Rehearing Denied Jan. 6, 1977.
    Second Rehearing Denied Jan. 27, 1977.

      Les Mendelsohn, San Antonio, for appellant.
    Leonard J. Gittinger, Jr., Gittinger & Git-tinger, San Antonio, for appellee.
   RALEIGH BROWN, Justice.

This is a divorce case. Geneva E. Bond was granted a divorce from Joseph C. Bond, together with a division of community property and an award of attorney’s fees. Joseph Bond appeals. We reverse and remand.

Appellant argues the trial court erred in overruling his second motion for continuance as a matter of law because his military service prevented his appearance. He claimed the benefits afforded by the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C.App. § 521, which provides:

“At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act . unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service . . . ”

To determine whether a continuance should be granted in Soldiers’ and Sailors’ Act cases, Texas follows the rule as stated in Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677 (1956):

“ . . . The trial court is given a wide discretion in determining whether a stay should be granted under the circumstances of a particular case and in deciding which party should carry the burden of proof on the issue of prejudice. See Boone v. Lightner, 319 U.S. 561, 63 S.Ct. 1223, 87 L.Ed. 1587.”

The court in Roark v. Roark, 201 S.W.2d 862 (Tex.Civ.App.—Dallas 1947, no writ), considering § 521 and its applicability in a divorce case, said:

“Under this section of the Act it will be seen that a person in military service is entitled as a matter of right to a stay of proceedings in a cause in which he is a party, upon showing that he is in military service, . . . unless the opposing side or party shall make it appear that defendant’s ability to prosecute or defend is not materially impaired by such military service. There can be no question here that the ability of the defendant to conduct his defense in this cause is materially affected by reason of his military service, and to deprive him of the rights guaranteed him under the Soldiers’ and Sailors’ Act, in absence of proof that his military service is used as a shield for defense or instrument of oppression, is an abuse of judicial discretion in the court’s refusing the stay or continuance of the trial . . . ”

See also Becknell v. D’Angelo, 506 S.W.2d 688 (Tex.Civ.App.—Fort Worth 1974, writ dism’d); Ulmer v. Mackey, 242 S.W.2d 679 (Tex.Civ.App.—Fort Worth 1951, writ ref. n.r.e.); and Burke v. Hyde Corporation, 173 S.W.2d 364 (Tex.Civ.App.—Fort Worth 1943, no writ).

Appellant states in his brief there was no evidence submitted to or admitted by the trial court on considering his motion for continuance other than the motion itself. The appellee does not challenge this statement and the statement of facts does not include matters presented at the hearing on the motion. Appellant’s unchallenged statement as to the record is accepted by this court as correct. Rule 419, T.R. C.P.; Franks v. State, 498 S.W.2d 516 (Tex.Civ.App.—Texarkana 1973, no writ).

Appellant’s application for continuance substantially complied with Rule 251, T.R. C.P. The affidavit supporting the application was in compliance with Rule 14, T.R. C.P. It affirmed (1) appellant was to retire from the Air Force August 31, 1975, and the trial was to be August 15,1975; and (2) appellant was ordered to remain at the base until retirement.

We recognize it is settled law that the matter of granting a continuance rests with the discretion of the trial judge and his order will not be disturbed on appeal unless there was an abuse of discretion. Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.1963).

The record establishes a restricted member of the Air Force sought a continuance of his divorce trial for a period of approximately two weeks. Following the two weeks, he would no longer have the benefits of the Soldiers’ and Sailors’ Relief Act. We hold the trial court’s failure to grant appellant’s second motion for'continuance was an abuse of discretion. This holding makes it unnecessary for us to consider the other points of error.

The judgment is reversed and the cause remanded.

ON MOTION FOR REHEARING

Appellee now responds to appellant’s statement in his reply brief, which this court granted permission to file, that no evidence was submitted to or admitted by the trial court on considering appellee s motion for continuance other than the motion itself, by saying:

“ . . . the Trial Judge did in fact have before him the full Court’s Jacket concerning all of the pleadings and documents, request for admissions, Motions, Orders and Agreements theretofore filed in the case and further that Appellee’s counsel delivered to the Trial Judge the Citation with Petition attached issued out of the Circuit Court of Champaign County, Illinois, in the divorce cause commenced by the Appellant against the Ap-pellee in such State. He also received information from counsel concerning the status of the Illinois case, the status of the Appellee, and arguments of counsel for both parties. . . ”

This statement does not directly challenge the statement made by appellant in his reply brief and affirmatively shows no evidence was presented at the hearing. We accept the statement of appellant as correct. Rule 419, T.R.C.P.; Biscamp v. Zeno Carpet Company, 473 S.W.2d 218 (Tex.Civ.App.—Beaumont 1971, no writ).

Appellee also argues Rule 419, T.R. C.P., is applicable only to statements made by appellant in his “original” brief. The language contained in the rule refers to statements made by an appellant in his “original” brief. We hold, however, that Rule 419, permits the court to accept as correct an unchallenged statement as to the facts or record made by an appellant in a subsequent brief. This interpretation is consistent with the purpose and intent of Rule 419.

We find nothing to cause us to change the judgment heretofore entered. The motion for rehearing is overruled.


author: PEDEN, Justice.

text:
    DAIRYLAND COUNTY MUTUAL INSURANCE COMPANY of Texas, Appellant, v. Susan G. BERNAL, Appellee.
    No. 16793.
    Court of Civil Appeals of Texas, Houston (First Dist.).
    Jan. 13, 1977.
    Ramsey & Murray, John A. Murray, Jr., Houston, for appellant.
    Casbeer Snell, Jr., Houston, for appellee.
   PEDEN, Justice.

This is an appeal from an order overruling the defendant’s plea of privilege. Mrs. Susan Bernal sued the appellant, Dairyland County Mutual Insurance Company of Texas, and defendants Mrs. Elizabeth Montes and Benjamin Rodriguez, alleging that she sustained a personal injury and property damage when her car was struck from the rear while she was stopped at a red light. Mrs. Montes, the driver of the other car, and Rodriguez, its owner, are alleged to be uninsured motorists and Dairyland is alleged to be liable under the uninsured motorist provision in an insurance policy issued to the plaintiff.

The suit was filed in Harris County, where the accident occurred, and Dairyland filed its plea of privilege to be sued in the county of its residence, Travis County. The appellee filed a controverting affidavit contending that venue was proper in Harris County under Subdivisions 3, 4, 5, 9a, 23, 27, 28, 28a, and 29a, Article 1995, V.C.S. The trial court overruled Dairyland’s plea of privilege after a non-jury hearing. Neither findings of fact nor conclusions of law were requested or filed.

Dairyland says the trial court erred in overruling its plea of privilege because the appellee failed to bring her cause of action within one or more of the statutory exceptions to the venue statute in that there was not proper or admissible proof by a preponderance of the evidence that the other driver was a resident of Harris County or of the existence of a cause of action against either a resident defendant or against Dairyland. We affirm.

The necessary venue facts under Subdivision 4 of Article 1995 are: 1) one defendant resides in the county of suit (this fact must be established by affirmative evidence); 2) the party asserting his privilege is at least a proper party to the claim against the resident defendant (this may be established by reference to the controverting affidavit and the petition to show the nature of the suit); 3) the plaintiff has a bona fide claim against the resident defendant (he must plead and prove by a preponderance of the evidence each element of this bona fide claim; it must be the same claim asserted in the controverting affidavit). 1 McDonald, Texas Civil Practice, 439-444, Venue, Sec. 4.10.2 (1965); Atchison, Topeka and Santa Fe Railway Co. v. Texas Employers’ Insurance Association, 531 S.W.2d 867 (Tex.Civ.App.1975, no writ).

We review the pertinent testimony of Mrs. Bernal, the plaintiff. She resides in Harris County. On August 4, 1974, she had stopped for a red light at an intersection in Harris County and had been sitting there between thirty seconds and a minute when a car hit her from the rear. She talked to the other driver, who gave her name as Elizabeth Montes and her address as 3065 Golfcrest, Apartment 14. That address is in Harris County. Mrs. Bernal and her husband went there and found Mrs. Montes residing at that address. She told them Benjamin Rodriguez was the owner of the car she was driving and that he lived on Kernal Street in Houston. The Bernals did not go to his address; he came over to Mrs. Montes’ address. Mrs. Bernal’s car was damaged and she was injured in the accident. She has been to doctors and has incurred various expenses.

This testimony of Mrs. Bernal was not disputed, she was not cross-examined as to it, and it was presumably accepted by the trial judge. We hold that it establishes that defendant Mrs. Montes resides in Harris County and that the plaintiff has a bona fide claim against her. That Dairyland is at least a proper party to the claim against Mrs. Montes is shown by reference to the plaintiff’s controverting affidavit and to her petition.

Dairyland cites Williams v. Bain, 332 S.W.2d 360 (Tex.Civ.App.1959, no writ), which holds that venue may not be maintained under Subdivision 4 when there is no resident defendant before the court. Dairyland asserts on appeal that Mrs. Montes, the only defendant possibly shown to be a resident of Harris County, was not before the court. The record before us is silent on the matter. We hold that it cannot be raised for the first time on appeal. The plaintiff should be given an opportunity in the trial court to show that a bona fide effort has been made to bring the resident defendant before the court or that he is before the court even if its records do not so indicate.

Having held that the trial court’s order should be affirmed on the basis of Subdivision 4, we need not consider whether other subdivisions are applicable.

Affirmed.


author: HUGHES, Justice.

text:
    Billy R. DAVIS, Sr., Individually and for Billy R. Davis, Jr., Appellant, v. The TEXAS & PACIFIC RAILWAY COMPANY, Appellee.
    No. 17792.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 21, 1977.
    Byrd, Davis, Eisenberg & Clark, Don L. Davis, Austin, Herrick & Ward, Fort Worth, for appellant.
    Brown, Herman, Scott, Dean & Miles, Richard E. Miles, J. Shelby Sharpe, and. Stephen C. Howell, Fort Worth, for appel-lee.
   OPINION

HUGHES, Justice.

This is a personal injury action brought by Billy R. Davis, Sr., individually and for use and benefit of his minor son, Billy R. Davis, Jr., who sustained an amputation of his right leg on July 31, 1974, when he fell under a train of the T & P Railway (hereafter called T & P). T & P was defendant in the trial court.

Plaintiffs shall hereafter be referred to as Davis.

Under Rule 166-A, T.R.C.P., T & P filed motion for summary judgment alleging:

1. There was no breach of any legal duty by the defendant;

2. Billy Ray Davis, Jr., was a trespasser on the occasion in question; and

3. There was no evidence of negligence on the part of the defendant that could be a proximate cause of the incident made the basis of this suit.

Trial court granted T & P’s motion for summary judgment and entered its judgment that Davis take nothing. Appeal was perfected to this Court.

We affirm.

The only question in this appeal is whether or not the T & P had a duty to use reasonable care to protect children coming to the tracks to obtain flares that crewmen habitually threw to them.

The summary judgment hearing was based on an affidavit of a T & P agent and depositions of Davis, Sr. and Jr., Mrs. Davis, Sr., a younger Davis son, the three train crewmen, and the T & P dispatcher.

The deposition of Davis, Jr. (age 15 years, of normal intelligence or above) contains the only evidence that flares were habitually thrown to children at the section of railway where the accident occurred, he having deposed to having had them thrown to him on four or five occasions by- trainmen. The same deposition also reflects that Davis, Jr. was activated into going to the tracks to “catch flares” from the passing train and that, upon being disappointed .at not having any thrown, he decided to catch a ride on the train. He ran up to the train, grabbed at a step,- missed it and fell under the train where his leg was cut off.

Davis asserts that he was a licensee at the time of the accident. T & P asserts that he was a trespasser. Viewing the facts1 in the light most advantageous to Davis and using the same prerogative as the Supreme Court did in Lower Neches Valley Authority v. Murphy, 536 S.W.2d 561 (Tex.1976) we assume the plaintiff to have been a licensee without deciding such to have been his status. State v. Tennison, 509 S.W.2d 560 (Tex.1974) is the authority for duty-owed to a licensee by a unit of government as follows: “It is -well settled in this State that if the person injured was on the premises as a licensee, the duty that the proprietor or licensor owed him was not to injure him by willful, wanton or gross negligence.” Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.,2d 1073 (1941).

An exception to such the general rule is that when licensor has knowledge of a dangerous condition, and licensee does not, a duty is owed on the part of the licensor to either warn the licensee or to make the condition reasonably safe. Gonzalez v. Broussard, 274 S.W.2d 737 (Tex.Civ.App.-San Antonio 1954, writ ref’d n.r.e.).

However, “A licensee is not entitled to expect that the possessor will warn him of conditions that are perceptible to him, or the existence of which can be inferred from facts within his present or past knowledge.” Lower Neches Valley Authority v. Murphy, supra. Davis, Jr. at the time of the accident was a 15 year old boy of “average or above intelligence” and it was not necessary that T & P warn him of so perceptible a condition as the danger of slipping on the step of a freight car moving at a “moderate speed.”

Since T & P, as movant for summary judgment, had the burden of establishing as a matter of law that there were no genuine issues of fact as to one or more of the essential elements of the asserted cause of action, and since there was no allegation of • willful, wanton or gross negligence, we hold that T & P discharged the burden. We overrule both points of error urged in this appeal.

We affirm the judgment of the trial court.


author: McCLOUD, Chief Justice.

text:
    The TEXAS AND PACIFIC MOTOR TRANSPORT CO., Appellant, v. Tommie STEVENS d/b/a National Body Works, Appellee.
    No. 4980.
    Court of Civil Appeals of Texas, Eastland.
    Feb. 3, 1977.

      William A. Brasher, Dallas, for appellant. Davis Scarborough, Scarborough, Black, Tarpley & Scarborough, Abilene, for appel-lee.
   McCLOUD, Chief Justice.

Plaintiff, Tommie Stevens, d/b/a National Body Works, sued defendant, The Texas and Pacific Motor Transport Company, for services performed in removing defendant’s wrecked truck from the highway and delivering the truck to defendant’s terminal in Abilene, Texas. The case was submitted to the jury who answered three special issues as follows:

(1) At the time plaintiff agreed to pick up the wreckage, he was not acting as a volunteer at the request of the Department of Public Safety;
(2) On the occasion in question, there was not an “implied contract” between plaintiff and defendant covering the removal of the wrecked vehicle; and
(3) The sum of $400 would fairly, and reasonably compensate plaintiff for the services performed.

The court entered judgment for plaintiff and defendant has appealed. We affirm.

Defendant contends the judgment entered is not supported by the findings of the jury. There is no statement of facts. Defendant asserts this is an appeal under Rule 307, T.R.C.P., and that it may attack the judgment without a statement of facts. Defendant argues that the only liability issue submitted was found in its favor and since plaintiff failed to file a motion to disregard the finding there was no “implied contract” or for judgment notwithstanding the verdict, the court was not authorized to disregard such finding. Rule 301, T.R.C.P.

Plaintiff contends, and we agree, that without a statement of facts we must presume the court found the evidence conclusively established an independent ground of recovery that was not submitted

In deciding this point, the court in McPherson v. Black, 346 S.W.2d 615 (Tex.Civ.App.—Waco 1961, writ ref. n.r.e.) said:

“In the absence of a motion for new trial and a statement of facts, the only point presented which is properly preserved for review which we are authorized to consider under the record, is that which asserts the verdict does not support the judgment. Rules 324, 307; and see Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943, 948; Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887; Miller v. Miller, Tex.Civ.App., 274 S.W.2d 762, 764, writ refused; 3 Tex.Jur.2d Secs. 452-463, pp. 702-714 . . .
Rule 307 must be here construed in connection with Rule 279. In the absence of a statement of facts, and absent objection or request, we think it is to be here presumed that independent grounds of recovery on which no issue was submitted or requested were conclusively established under the evidence; and that the evidence did not make such grounds issuable. See Willeke v. Bailey, 144 Tex. 157, 189 S.W.2d 477, 480. Such grounds, presumed to be conclusively established, are not waived, under Rule 279, as appellant contends. That rule effects waiver only of such independent grounds of recovery as are ‘not conclusively established under the evidence,’ and we are required to presume under our record that they were so established.
In the absence of a statement of facts, ‘every presumption must be indulged in favor of the * * * judgment’, including existence of ‘such facts as are necessary to support the judgment’. Commercial Credit Corp. v. Smith, 143 Tex. 612, 187 S.W.2d 363, 365; Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683, 685; City of Galveston v. Hill, 151 Tex. 139, 246 S.W.2d 860, 863.”

In Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943 (1958), a nonjury Rule 307 appeal, where findings of fact and conclusions of law were filed, the court noted it could not presume under Rule 299, T.R.C.P., that the trial court found an independent ground of defense, since no element of such defense had been expressly found by the trial court in its findings of fact and conclusions of law.

Rule 299, T.R.C.P., provides in part:

“Where findings of fact are filed by the trial court they shall form the basis of the judgment upon all grounds of recovery and of defense embraced therein. The judgment may not be supported upon appeal by a presumption of finding upon any ground of recovery or defense, no element of which has been found by the trial court; but where one or more elements thereof have been found by the trial court, omitted unrequested elements, where supported by evidence, will be supplied by presumption in support of the judgment . . . ”

Rule 299, which is applicable to non jury trials, expressly prohibits a presumed finding on appeal upon any ground of recovery or defense, “no element of which has been found by the trial court.” However, the instant case is a jury case and as pointed out in McPherson, under Rule 279, T.R.C.P., which applies to submission of special issues in jury cases, it will be presumed on appeal, in the absence of a statement of facts, that independent grounds of recovery on which no issue was submitted or requested were conclusively established under the evidence.

We have considered all points of error and all are overruled. The judgment of the trial court is affirmed.

      . Rule 307 provides: ‘‘In non-jury cases, where findings of fact and conclusions of law are requested and filed, and in jury cases, where a special verdict is returned, any party claiming that the findings of the court or the jury, as the case may be, do not support the judgment, may have noted in the record an exception to said judgment and thereupon take an appeal or writ or error, where such writ is allowed, without a statement of facts or further exceptions in the transcript, but the transcript in such cases shall contain the conclusions of law and fact or the special verdict and the judgment rendered thereon.”


text:
    Janis M. FERGUS, Appellant, v. Mark V. FERGUS, Appellee.
    No. 4977.
    Court of Civil Appeals of Texas, Eastland.
    Feb. 3, 1977.

      Beverly Tarpley, Scarborough, Black, Tarpley & Scarborough, Abilene, for appellant.
    Malcolm C. Schulz, Abilene, for appellee.
   McCLOUD, Chief Justice.

Mark V. Fergus sued his wife, Janis M. Fergus, for divorce. Both parties sought to be appointed managing conservator of Michael V. Fergus, the minor child of the marriage. The court in a nonjury trial granted Mark V. Fergus a divorce and appointed him managing conservator of Michael V. Fergus. The mother, Janis M. Fergus, appeals. We affirm.

The mother contends the court abused its discretion in not appointing her managing conservator. We have carefully reviewed the evidence, and see no useful purpose in detailing the testimony. Section 14.01 of the Family Code expressly provides that in determining which parent to appoint as managing conservator, the court shall consider the qualifications of the respective parents without regard to the sex of the parent. The best interest of the child is the primary consideration of the court, and the evidence in this case would support the appointment of either parent as managing conservator.

The matter of determining who should be appointed managing conservator of Michael V. Fergus was addressed to the sound discretion of the trial court. It was stated in Mumma v. Aguirre, 364 S.W.2d 220 (Tex.1963):

“. . . He has an opportunity to observe and evaluate the personalities of the contending claimants, to weigh the credibility of their testimony, to assess the physical, mental, moral and emotional needs of the child, and to adjudge from personal observation which of the claimants can best meet the needs of the child. His judgment should be reversed only when it appears from the record as a whole that he has abused the discretion entrusted to him . .”

We hold the trial court did not abuse its discretion in appointing the father managing conservator.

The mother next complains that the court erred by not prescribing in the judgment her rights, privileges, duties and powers as possessory conservator of the minor child.

The judgment appointed Janis M. Fergus possessory conservator and stated that she had “reasonable visitation rights”.

Article 14.03 of the Family Code provides:

“(a) If a managing conservator is appointed, the court may appoint one or more possessory conservators and set the time and conditions for possession of or access to the child by the possessory conservators and others.
(b) On the appointment of a possessory conservator, the court shall prescribe the rights, privileges, duties, and powers of the possessory conservator.
(c) The court may not deny possession of or access to a child to either or both parents unless it finds that parental possession or access is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child.”

The rights, privileges, duties, and powers of a possessory conservator are expressly prescribed in Article 14.04 of the Family Code as follows:

“A possessory conservator has the following rights, privileges, duties, and powers during the period of possession, subject to any limitations expressed in the decree:
(1) the duty of care, control, protection, and reasonable discipline of the child;
(2) the duty to provide the child with clothing, food, and shelter;
(3) the power to consent to medical and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and
(4) any other right, privilege, duty, or power of a managing conservator expressly granted in the decree awarding possession of the child.”

The appointment of Janis M. Fergus as “possessory conservator” gave her the rights, privileges, duties, and powers contained in Article 14.04. The judgment contained no limitation nor granted any additional rights, privileges, duties, or powers as contemplated by Article 14.04. The court did not commit error in failing to list in the judgment the rights, privileges, duties, and powers given the possessory conservator in Article 14.04.

There is no finding that “possession” of or “access” to the child by the mother would not be in the best interest of the child or that possession or access by the mother would endanger the physical or emotional welfare of the child. Therefore, Janis M. Fergus, under Article 14.03, has certain rights of possession and access to the child. The judgment fails to specifically “set the time and conditions for possession of or access to the child” by the posses-sory conservator. The judgment states only that the possessory conservator has “reasonable visitation rights”. We think that under the current Family Code this language is inappropriate and should be avoided. It is clear that Subsection (a) of Article 14.03 contemplates that the time and conditions for possession of or access to the child by the possessory conservator be expressly stated in the judgment. We do not think, however, that the court committed error in using the traditional phrase “reasonable visitation rights”. We conclude that such language means that the posses-sory conservator is entitled to possession of or access to the child, Michael V. Fergus, at reasonable times and under reasonable conditions.

We hold the court did not abuse its discretion or err as a matter of law in failing to prescribe expressly in the judgment the rights, privileges, duties, and powers of the possessory conservator.

Janis M. Fergus contends further that the court erred in refusing to grant her motion for new trial on the basis of newly discovered evidence. She relies upon the rule stated in In re Y., 516 S.W.2d 199 (Tex.Civ.App.—Corpus Christi 1974, writ ref. n.r.e.). The record in the instant case reveals that no hearing was held on the motion for new trial. Therefore, Mrs. Fergus has failed to show, as required by In re Y., that admissible competent evidence was introduced on the hearing of the motion for new trial showing the existence of the newly discovered evidence relied upon.

We have considered all points of error and all are overruled. The judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    Ken ANDREWS, Appellant, v. TWIN MONTANA, INC., Appellee.
    No. 17819.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 4, 1977.

      Penix, McCracken & Andrews, Ken Andrews, Graham, for appellant.
    Fillmore, Lambert, Farabee, Purtle & Lee, Thomas H. Bacus, Wichita Falls, for appellee.
   PER CURIAM.

January 5, 1977, appellant, Ken Andrews, filed a “Motion to Grant Late Filing of Brief in Court of Civil Appeals.” The appeal is from a summary judgment rendered on May 28, 1976. Such motion is opposed by appellee, and it has its own motion to dismiss the appeal.

The transcript was filed on July 26, 1976. Appellant’s brief was received by the clerk of this Court on December 20, 1976, (some 107 days after the August 25, 1976, date it should have been received). The motion for extension of time within which it might be filed was received on January 5, 1977.

Appellant alleged as good cause for his delay in filing brief the death of the senior partner of the law firm handling his work, the attendant increase of work on the other partners, and that appellee would not suffer material harm if the motion is granted due to continuous correspondence between appellant’s and appellee’s lawyers concerning the case, and because at no time has the case been considered settled by either party. Such motion was not sworn and no affidavits were filed in connection therewith.

Tex.R.Civ.P. 414, “Briefs: Time for Filing, Etc.”, provides for an appellant to file his brief in the Court of Civil Appeals within thirty days after having filed the transcript and statement of facts, if any. Tex.R.Civ.P. 415, “Briefs: Dismissal for Failure to File”, provides that the Appellate Court may dismiss the appeal for want of prosecution unless the appellant has complied with the provision of Rule 414 relative to time within which appellant should file his brief unless appellant shows good cause for the failure, and further shows that appellee has not suffered material injury thereby. In other words the presumption, absent appellant’s discharge of his burdens, is that there was not good cause for his delay and that because of his delay the appellee has suffered or will suffer prejudice. Practice in Appellate Courts is for appellant to seek to accomplish his purpose and have his delay authorized or approved by the Court upon his motion and request filed in the Court, with opportunity afforded the appellee to oppose the motion.

Involved in the instant appeal is not a short period of delay by appellant, but one of lengthy duration. Even had appellant’s motion been sworn it could not be said that anything more than that there had been an unspecified period in which there was occasion for delay in filing appellant’s brief. Good cause for delay in filing brief, even if existent at some point in time, is not shown unless there is explanation for the entire period of the delay during which there was failure to file it or to move for an extension of time to file it.

In the motion presented it is acknowledged that appellant was represented by a law firm. There were surviving members after the death of the one responsible for handling this appeal. It has been held that where a legal firm represents an appellant and there is delay in filing brief because one member was ill and one was involved in a political campaign there would not be any good cause for delay in filing an appellant’s brief. Assembly of God Church of Tahoka v. Bradley, 196 S.W.2d 696 (Tex.Civ.App.—Amarillo 1946, no writ), citing cases.

Generally, unless reason for failure to timely file brief is based in part on impact of some event beyond immediate control of appellant and/or his attorneys, and to some extent unforeseeable, good cause for extending time within which it might be filed does not exist. Rodriguez v. Flores, 426 S.W.2d 285 (Tex.Civ.App.—San Antonio 1968, no writ). Here, particularly in view of the fact that appellant is represented by a firm of lawyers, there would not exist good cause for delay — certainly for the extended period here involved— even assuming the Court would be obliged to accept the representation as true by some verification of the motion or by some affidavit to establish the fact.

This Court, in Evans v. Moore, 472 S.W.2d 540 (Tex.Civ.App.—Fort Worth 1971, no writ), reaffirmed its position as stated in Rhodes v. Turner, 164 S.W.2d 743 (Tex.Civ.App.—Fort Worth 1942, no writ), relative to requiring a strict showing by verification of motions, appending affidavits, etc., before granting extensions of time for filing of transcripts or statement of facts, and announced that there would be like requirement of motions for extension of time within which to file briefs.

Already noticed above is that the motion of appellant for extension of time for filing his brief is not verified and that there is no affidavit presented in support of it. Under these circumstances appellant has not proved anything by his motion; he has merely made some unsupported allegations. Previously indicated is that we are of the opinion that even were the motion for extension of time verified it would be insufficient to show good cause for appellant’s delay in tendering the brief desired to be filed and for this Court to grant the extension of time requested. There was no affidavit presented in support of the motion; sufficiency of affidavit proof is not a question to be considered.

We have examined the record and find that no question of fundamental error is involved; that there is not any other reason to deem the appeal as so exceptional that appellant’s motion should be granted because of Tex.R.Civ.P. 1, “Objective of Rules”, or that our action on the merits is a matter of public interest.

The appellant’s motion for extension of time is denied.

The appellee’s motion, insofar as it is for a dismissal of the appeal for want of prosecution, is granted.

The appeal is dismissed.


author: ROBERTSON, Justice.

text:
    Stuart S. WALLACE, Jr., D.D.S., Appellant, v. LINCOLN LEASING CORPORATION, Appellee.
    No. 19113.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 4, 1977.

      Frank E. McLain, Turner, Rodgers, Sail-ers, Jordan & Calloway, Dallas, for appellant.
    Edward S. Koppman, Ungerman, Hill, Ungerman, Angrist, Dolginoff & Teofan, Dallas, for appellee.
   ROBERTSON, Justice.

Appellant, Stuart S. Wallace, appeals from a default judgment and denial of his motion for new trial in which appellee, Lincoln Leasing Corporation as assignee of Ancillary Acceptance Corporation, recovered damages for violation of a lease agreement. Although appellant appealed on three grounds, in oral argument he waived all except one. Thus, his only contention is that there is no evidence that appellee or its assignor, both foreign corporations, have a certificate of authority to transact business in this state and, pursuant to Tex.Bus. Corp.Act Ann. art. 8.18A (Vernon 1956), is not permitted to maintain a suit in any court of this state. The principal question presented is which party has the burden of proof on this issue. We hold that a defendant has the burden to prove that the foreign-corporation plaintiff is “transacting business in this state” as defined in Tex.Bus.Corp.Act Ann. art. 8.01B (Vernon Supp.1976). Once the defendant offers this proof, the plaintiff must prove that it has a certificate of authority to transact business in this state. Because the appellant failed to establish that the appellee was transacting business, we hold that it failed to carry its burden and that the trial court did not err in proceeding to trial. Accordingly, we affirm the judgment.

Article 8.18 provides that no suit may be maintained by a foreign corporation which is transacting business in Texas without having obtained a permit from the Secretary of State authorizing it to do so. The burden is on a defendant to plead this in a plea in abatement and to prove facts showing a foreign corporation cannot maintain its suit where the corporation’s petition does not affirmatively show that the corporation either is transacting intrastate business or has a general or special office within the state. Continental Supply Co. v. Hoffman, 135 Tex. 552, 144 S.W.2d 253, 255 (Tex.Comm’n App.1940, opinion adopted); Aeronautical Corp. of America v. Gossett, 117 S.W.2d 893, 895 (Tex.Civ.App.—Dallas 1938, no writ); Chase Bag Co. v. Stafford, 120 S.W.2d 823, 824 (Tex.Civ.App.—Texarkana 1938, no writ); 17 Tex.L.Rev. 512; 19 Tex.L.Rev. 197; and 2 McDonald Texas Civil Practice, § 6.03.3 (Rev.Ed.1970). The allegations in a plea in abatement must be proven by evidence since those allegations, although sworn, do not constitute proof. Flowers v. Steelcraft Corp., 406 S.W.2d 199 (Tex.1966).

The appellant cites Normandie Oil Corp. v. Oil Trading Co., 139 Tex. 402, 163 S.W.2d 179, 181 (1942) for the proposition that the burden rests on the foreign corporation bringing the suit based on an intrastate transaction in this state’s courts to show that it has a permit to do business in this state. He contends that the appellee failed to carry this burden, and consequently, the trial court erred in permitting this suit. Although we recognize this principle enunciated by the supreme court, the fact remains that it is not apparent on the face of the appellee’s petition whether this suit involved an intrastate transaction, and the appellant did not offer proof to establish this fact. In Normandie, the court stated that the controlling question was whether the foreign-corporation plaintiff, which did not have a permit, could maintain in a court of this state a suit to recover compensation for services rendered when the undisputed evidence showed that a substantial part of those services were performed in the state. The court held that the subject matter of the transaction was the sale of an interest in Texas land, and consequently, the foreign corporation performed acts of a local nature. Thus, in essence, it was an intrastate transaction. Since the evidence clearly showed that the foreign corporation was transacting business in the state, the court placed the burden on the foreign corporation to prove it had a permit. Normandie is distinguishable from this case in that we have no evidence before us showing that the appellee was transacting business of a local nature. Since the appellee’s petition does not clearly show this fact on its face, the appellant had the burden of pleading and proving the intrastate transaction before the appellee was required to prove it had a permit to transact business within this state.

Accordingly, the judgment of the trial court is affirmed.