author: MASSEY, Chief Justice. SPURLOCK, Justice

text:
    Betty L. DEEN, Appellant, v. F. Edgar DEEN, Jr., Appellee.
    No. 17653.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 21, 1975.
    Rehearing Denied Dec. 19, 1975.

      C. Coit Mock, Fort Worth, for appellant.
    Fillmore, Lambert, Farabee & Purtle and Clyde Fillmore, Wichita Falls, for appellee.
   OPINION

MASSEY, Chief Justice.

Betty L. Deen, as plaintiff, brought suit against her husband (or former husband) Edgar Deen, Jr., in direct attack upon a prior judgment of divorce rendered against her and in favor of her husband. The number of the suit by which she attacked the former judgment was No. 95,544 — B. The number of the suit in which the prior divorce decree had been rendered was No. 94,536-B. Both cases were filed in the same court.

The divorce suit was filed June 22, 1973. As part of the record in the proceedings in such case a “waiver” of service of citation and voluntary appearance of the defendant wife was filed. However, this instrument showed on its face that it had been signed on June 21, 1973, the day before the suit was filed. Judgment granting a divorce to the husband was rendered on August 22, 1973, reciting that “the Defendant duly waived issuance and service of citation and wholly made default herein”. The record affirmatively shows that she was not otherwise brought before the court.

Antecedent history relative to events in the case appears by opinions: Deen v. Kirk, 508 S.W.2d 70 (Tex.Sup.1974); Deen v. Deen, 511 S.W.2d 612 (Fort Worth, Tex.Civ.App., 1974, no writ history). Note by the prior opinion of this Court that an order dismissing the wife’s suit to set aside the antecedent divorce decree had been entered by the trial court, and we reversed that order of dismissal and remanded the case for trial.

To be observed is the fact that there was never entry of any order consolidating Cause No. 94,536 — B (the divorce case) with Cause No. 95,544-B (the direct attack upon the divorce decree).

Promptly after mandate of this Court on the prior appeal certifying remand for trial of Cause No. 95,544-B, there was trial below. Judgment was rendered denying the wife’s prayer that the divorce decree in Cause No. 94,536 — B be vacated. She appealed.

Judgment reversed. Judgment rendered vacating antecedent judgment of divorce.

T.R.C.P. 329b, “District and County Court Cases", provides in part: “After the expiration of thirty (30) days from the date the judgment is rendered or motion for new trial overruled, the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law.” (Long before the 1941 adoption of Texas Rules of Civil Procedure the substantially identical provision was a part of our rules of practice. See V.A.T.S., Art. 2092(30). The provision has steadily persisted since 1923.)

V.A.T.S. 5529, “All other actions barred, when” recites: “Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterward.”

There is no doubt that the wife’s suit, by No. 95,544 — B, was a direct attack on the judgment rendered in No. 94,536-B. 34 Tex.Jur.2d, p. 234, “Judgments”, Sec. 289, “Direct attack distinguished — Illustrations”; Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325 (1895). Where direct attack against a prior judgment is made in the court which had rendered it the most common instance is plea for equitable relief against the prior judgment by equitable bill of review. This is indicated under the foregoing authority. Pleading and evidence requirements in that character of case almost invariably are that the plaintiff (in the bill of review suit) show (1) meritorious defense to the cause of action to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950).

Over the United States there have been various methods of direct attack upon a prior judgment in the trial court after its purported finality. See 49 C.J.S. Judgments § 286, Nature and Form of Remedy, p. 513.

In Texas, however, where it was necessary to make direct attack on equitable grounds the exclusive method since 1923 has been by bill of review. Not likewise treated have been instances where judgments have been directly attacked because they were void. One example is observed where the attack was made upon the defendant’s opposition to a revival of a void judgment purportedly existent. Carson v. Taylor, 261 S.W. 824 (Amarillo, Tex.Civ. App., 1924, no writ history). The case was an instance where there was lack of jurisdiction over the person of the defendant against whom the prior judgment had been rendered because citation had never been issued or served on him. Actually, over the entire country, courts have appeared ready and willing to vacate their own void judgments in any form they have been attacked, especially those exhibited as void “on the face of the record”, the “judgment roll” itself, including not merely the judgment and pleadings, but also the process whereby presence or absence of jurisdiction might be determined.

It is thought that the intent, by force of which that portion of procedural law quoted from T.R.C.P. 329b appeared to have application, was to eliminate all other methods of direct attack after purported finality of judgment of a trial court, i. e., whether the attack upon the prior judgment was on equitable grounds or was on legal grounds (as where the judgment was demonstrably void “on the face of the record”, for example, of a want of jurisdiction over the defendant). In other words the intent was that in all cases (1) there must be a new suit, (2) in a newly filed case, (3) in the same court, (4) involving the same parties. In this character of proceeding the “body” of the case in which the former judgment was rendered is brought before the court for a proper trial as part of the entire proceedings in order that there need not be delay in the trial of such case should the court vacate the prior judgment.

It is not thought that there was intent, as a predicate for such proper trial, to require proof other than that a prior judgment should be decreed void. Rules of equity would clearly be inapplicable where the judgment was “void” as distinguished from “avoidable”.

On the instant appeal we consider a case in which the judgment is demonstrably void “on the face of the record” for want of jurisdiction of the person of the defendant against whom the prior judgment was rendered. Indeed, as we understand the Supreme Court it has already stated that the very judgment under attack is thus void. Deen v. Kirk, 508 S.W.2d 70 (Tex.Sup., 1974).

The case of In Re Armstrong’s Adoption (and Armstrong v. Manzo by the U.S. Supreme Court), infra, served notice in such a ease, one in which there was procedure without service of process leading to trial and judgment had been rendered injuriously affecting the rights of (one who should have been) a defendant, that the judgment should be set aside on the ground that the defendant had been denied the due process of the law guaranteed by the United States Constitution. Furthermore, in the opinions in that case there was additional statement made to the effect that there would also be a denial of due process though the defendant was afforded a hearing after judgment, when the trial court still had jurisdiction of the original proceeding, if at such hearing he was required to make any affirmative proof. That which the appellate court was considering involved absence of notice and process on the defendant apparent “on the face of the record”. It was the observation of the United States Supreme Court in Armstrong that such a defendant’s entitlement was to have the slate “wiped clean”, with a new trial held in which he would be compelled to do nothing more than to defend the cause of action asserted against him; specifically, that such a defendant would not be obliged to prove anything affirmatively as a predicate to his entitlement to have judgment set aside. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); In Re Armstrong’s Adoption, 394 S.W.2d 552 (El Paso, Tex.Civ. App., 1965, no writ history). On invalidity of the judgment see also cases annotated at 24A Texas Digest, “Judgment”, <®=>485, “Judgment void on its face in general”.

Of Armstrong we are aware. It is in light thereof that we have stated our views upon a part of the provisions of Rule 329b. It is not thought that such portion of the provisions could be applied in a manner to require a defendant who has suffered the onus of a void judgment, in his direct attack upon it in the trial court which rendered the judgment, to show anything other than that the judgment was void.

The language of T.R.C.P. 329b is not subject to construction other than that the time honored rules governing direct attacks on judgments by equitable bill of review would govern all such proceedings, whether suit is attacked on legal grounds or on equitable grounds, plus a time limitation for bringing suit applicable whether the suit is one at law or in equity. By reason thereof, we conclude that T.R.C.P. 329b does not control in the circumstances of the case under consideration. It is in derogation of the wife’s right to due process, her suit being brought at law and not in equity. The rule must be held unconstitutional in its application to this case.

Even if we err yet the wife must be held to have prevailed as a matter of law by rules we deem to have relation to an equity case only. The trial court denied the wife’s suit for recited reasons, among which was the finding that she suffered judgment initially, as well as allowing it to become final, as result of her own negligence or fault. We know by recent decision of the Supreme Court that this is a case in which such a finding would be the only possible reason to support the judgment. Texas Industries, Inc. v. Sanchez, 521 S.W.2d 133, 136 (Dallas, Tex.Civ.App., 1975, writ ref., n.r.e., with written opinion by the Supreme Court on 19 July, 1975, at 525 S.W.2d 870).

Here the wife could not have been negligent as found by the trial court because she was under no duty to do anything to prevent the void judgment, and after it was rendered she had no duty to prevent a purported finality. As a matter of law she had no duty to intervene in the divorce ease since she was not served with citation. In other words she was under no duty to do anything. It is elementary that where there exists no duty to do or refrain from doing any act there could not be negligence by action or inaction. 40 Tex.Jur.2d 448, “Negligence”, Sec. 6, “In general”.

By reason of what we have written here-inabove there is obvious error in the statement made in our prior opinion (Deen v. Deen, 511 S.W.2d 612, at p. 614) to the effect that the wife would be obliged, as prerequisite to relief from the default divorce judgment taken against her by her husband, to plead and prove that she did not suffer the onus of the judgment negligently and that she had a meritorious defense to her husband’s action for divorce, etc. We now hold we erred by such statements. We likewise believe there was error in the authorities cited in support. 34 Tex. Jur.2d p. 96, “Judgments”, Sec. 227, “(Showing of merits or defense) Where judgment void”, and McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (1961). It was subsequent thereto that the Supreme Court wrote in Texas Industries, Inc. v. Sanchez, supra.

Ordinarily it is the time honored duty of a trial court, where an appellate court has reversed its judgment and remanded the cause for new trial, to view the appellate decision as constituting the “law of the case” upon retrial. 64 Tex.Jur.2d p. 503, “Words and Phrases” on “Law of the case doctrine”. We hold that such rule finds its exception in an instance such as the one under scrutiny. We deem it our duty to reverse our own prior position in view of the requirements of the Federal and State Constitutions. It would be foolish to do otherwise, believing as we do that to follow it would be to violate that due process guaranteed by the Constitution. Under that conclusion and the holdings here made we must deem the trial court to have erred by following and acting in obedience to our prior opinion.

It follows that what we are holding is that the trial court, in following our prior opinion and in trying the case by rules applicable to equitable bills of review and under the theory that by such rules the wife was obliged to show compliance with the rules of Hagedorn as a predicate to any right to have the prior judgment vacated, tried the case under an erroneous theory of law. The circumstance is unusual, to say the least. In fairness to the trial court it would appear that our order upon reversal as applied to the instant appeal should be one which would remand the case for another trial rather than one which would render judgment to the contrary of that rendered by the trial court. 4 Tex.Jur.2d (Part 2, Revised), p. 645, “Appeal and Error — Civil Cases”, Sec. 936, “Disposition where case tried on erroneous theory”.

However, in the same section of Texas Jurisprudence Second, cited in the preceding paragraph, it is pointed out that where a plaintiff’s judgment is reversed and where there is an insuperable barrier to his recovery on any theory upon retrial the appellate court should render judgment rather than to remand the cause.

Such an insuperable barrier exists in the instant ease. We have held that as a matter of law the wife is entitled to the vacation of the divorce decree. By the Suggestion of Death of the husband filed in this Court’s record, and by the stipulation of the attorneys for the parties upon the oral presentation of the appeal, we know that pending the appeal the husband had died. With his prior divorce decree set aside and vacated for want of jurisdiction on the part of the trial court, it necessarily follows that when the husband died he was still married to Betty L. Deen, the plaintiff/appellant. He cannot sue for divorce. It would be pointless to remand the case for any reason. Therefore, our appellate action must be one wherein we not merely reverse judgment but one in which we must render the judgment which the trial court should have rendered.

There are additional reasons which would require reversal of the judgment of the trial court. These, however, and in particular the error of the trial court denying the wife’s motion for continuance, could merely require a remand. We do sustain the point of error upon the denial of the motion for continuance.

We conclude that we need not lengthen the opinion by a discussion of other complaints of error because the judgment of the trial court is reversed, with a contrary judgment rendered.

Other points of error are overruled as immaterial to our proper disposition.

Judgment of the trial court is reversed, with judgment here rendered setting aside the prior divorce judgment decree of the 78th District Court of Wichita County, Texas, bearing Number 94,536 — B, styled F. Edgar Deen, Jr. v. Betty L. Deen. All provisions of said judgment are vacated.

SPURLOCK, J., concurs.

SPURLOCK, Justice

(concurring).

As a general rule a void judgment cannot be validated by a subsequent proceeding. 46 Am.Jur.2d 349, “Judgments”, Sec. 50, “Validation of judgments".

The Hagedorn rule was established in a case in which the defendant was actually served with valid process and failed to appear and suffered a default judgment to be rendered against him.

I agree that it is unnecessary to comply with the Hagedorn requirements when the Court rendering judgment had no jurisdiction to render same; but, in any event, I would hold as a matter of law, that Mrs. Deen met the remaining requirements after Sanchez eliminated the second one. As a matter of law she had no duty to affirmatively intervene in the divorce case until she was served with citation. Absent such a duty she could not be negligent. She showed at least two valid defenses in that the undisputed record shows that Mr. Deen did not meet the residential requirements to obtain a divorce in Wichita County, and he was not entitled to a divorce on the only ground he plead, i.e.: 3 years living apart without cohabitation. The record shows Mr. and Mrs. Deen spent the night in the same bed the night of June 20, 1973, being the day before the waiver was signed and two days before the divorce suit was filed.

I feel it important to note that this case was set for trial and tried without Mrs. Deen having had the prior notice of the setting required by the Texas Rules of Civil Procedure and Rule 16, Rules of the District Court of Wichita County. This also denied her due process. Jackson v. Napier, 307 S.W.2d 833 (Fort Worth, Tex.Civ.App. 1957, no writ hist.). This fact alone would require a reversal of the judgment. Failure of a court to follow rules of civil procedure in certain instances may result in a party being denied due process. Ragsdale v. Ragsdale, 520 S.W.2d 839 (Fort Worth, Tex.Civ.App. 1975, no writ hist.).


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    Clyde SKEEN, Appellant, v. I. M. MOUSER, trading and d/b/a Black’s Refrigeration, Heating and Air Conditioning, Appellee.
    No. 5507.
    Court of Civil Appeals of Texas, Waco.
    Nov. 26, 1975.

      Geary, Brice, Barron & Stahl, Mark C. Clements, Dallas, for appellant.
    Kuhn, Collins & Rash, Rip Collins, Austin, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by appellant (defendant) Skeen from an order overruling his plea of privilege.

Plaintiff Mouser (d/b/a Refrigeration, Heating and Air Conditioning) sued defendants Argonaut Insurance Company, McClellan-Thomas, Inc., and Clyde Skeen; alleging plaintiff was subcontractor of McClellan-Thomas, Inc., to furnish labor and materials for air conditioning work at Wood-creek development in Wimberley, Texas; that Skeen was a principal; that Argonaut was surety on payment bond for McClellan-Thomas and Skeen; that defendants were obligated to plaintiff for $13,371.91 for labor and material. Plaintiff sought judgment against defendants for the $13,371.91 plus interest and attorneys’ fees.

Defendant Skeen filed plea of privilege to be sued in Dallas County, the county of his residence. Plaintiff controverted asserting venue against McClellan-Thomas, Inc., under Subdivision 23 or 27 Article 1995, and against Skeen under Subdivision 29a, Article 1995.

The trial court overruled defendant Skeen’s plea of privilege.

Skeen appeals on one point: “The trial court erred in holding that venue of this suit as to appellant is in Hays County by virtue of Subdivision 29a, Article 1995 VATS, because appellant is not a necessary party to the suit by appellee against McClellan-Thomas, Inc.”

Plaintiff Mouser, an air conditioning subcontractor, sued McClellan-Thomas, Inc., contractor, Skeen, and Argonaut (surety on payment bond) in Hays County, for moneys due plaintiff on the air conditioning subcontract. Skeen filed his plea of privilege to be sued in Dallas County. Plaintiff established venue as to McClellan-Thomas, Inc., and sought to maintain venue against Skeen under Subdivision 29a, alleging him to be a necessary party.

Subdivision 29a provides that when there are 2 or more defendants in a suit, and such suit is lawfully maintainable in the county of suit against any of such defendants, then such suit may be maintained against all necessary parties thereto.

Plaintiff could obtain full relief in his suit against McClellan-Thomas, Inc., and Argonaut. Thus defendant Skeen is not a necessary party within the meaning of Subdivision 29a, and is entitled to be sued in the county of his residence. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758; Mims v. East Texas Production Credit Assn., Tex. Civ.App., Er.Dismd., 496 S.W.2d 682.

The trial court erred in overruling Skeen’s plea of privilege.

Defendant Skeen’s point is sustained.

The order is reversed and remanded to the trial court with instructions to transfer the case as to Skeen to Dallas County.

Reversed and remanded.


author: EVANS, Justice.

text:
    Lynell Green ADDISON, Appellant, v. William A. ADDISON, Appellee.
    No. 16551.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 4, 1975.
    Ellis F. Morris, Houston, for appellant.
    Wyckoff, Eikenburg, Dunn & Frazier, John J. Eikenburg, Stephen S. Mims, Houston, for appellee.
   EVANS, Justice.

Appellant, Lynell Green Addison, obtained issuance of a writ of garnishment against Texas Southern University asserting a judgment indebtedness against her former husband, William A. Addison, in the amount of $400.00 as a result of an award entered in prior divorce proceedings. Ap-pellee, William A. Addison, filed a motion to quash the writ of garnishment, averring that Texas Southern University is an agency of the State of Texas and therefore is exempt from garnishment. Texas Southern University did not file an answer to the writ of garnishment, but after hearing ap-pellee’s motion, the trial court quashed the writ of garnishment and ordered that all funds held by Texas Southern University by virtue of the writ be released.

We are required to take judicial notice of the public statutes of this state, including pertinent portions of the Constitution and statutes relative to the establishment and operation of state universities. University of Texas v. Booker, 282 S.W.2d 740, 742 (Tex.Civ.App.—Texarkana, 1955, no writ); McCormick & Ray, Texas Law of Evidence, Sec. 171, p. 180. Texas Southern University was established by the Texas legislature, pursuant to the mandate of Article VII, Sec. 10, of the Texas Constitution, as a branch of the University of Texas System of Higher Education. Tex.Educ. Code Ann., Title 3, Ch. 106, pp. 235-239. The government of Texas Southern University is vested in its board of regents appointed by the Governor with the advice and consent of the senate. Section 106.11. All expenditures of Texas Southern University are paid on warrants issued by the State Comptroller on vouchers approved by the appropriate officer of its board. Sec. 106.32.

Public policy exempts from garnishment or execution departments of the state which are performing governmental functions. Delta County Levee Imp. Dist. No. 2 v. Leonard, 516 S.W.2d 911, 912 (Tex.1974); National Sur. Corp. v. Friendswood Independent School Dist., 433 S.W.2d 690, 694 (Tex.1968); Willacy County Water Control & Imp. Dist. No. 1 v. Abendroth, 142 Tex. 320, 177 S.W.2d 936, 937 (Tex.1944). As a state institution, Texas Southern University and its board of regents are exempt from garnishment proceedings. Splawn v. Woodard, 287 S.W. 677, 681 (Tex.Civ.App.—Austin, 1926, no writ); University of Texas v. Booker, supra. Appellee had a direct interest in the proceedings and was entitled to attack the issued writ by motion to quash. Cleveland v. San Antonio Bldg. & Loan Ass’n, 148 Tex. 211, 223 S.W.2d 226, 229 (Tex.1949); Rule 664, Texas Rules of Civil Procedure.

Affirmed.


author: HALL, Justice.

text:
    In the Interest of R_ V_ M_, a child.
    No. 5511.
    Court of Civil Appeals of Texas, Waco.
    Dec. 4, 1975.
    Stayton, Maloney, Hearne & Babb, William T. Hall, Austin, for appellant.
    Jack F. Ritter, Jr., Austin, for appellee.
   HALL, Justice.

This is a paternity suit coupled with an action for support for the illegitimate child. The child in question was born on November 16, 1973. This suit was brought on behalf of the child by the natural mother to have the appellant adjudged to be the father, and to require him to support the child. After a trial without a jury, judgment was rendered declaring the appellant to be the natural father of the child; requiring him to contribute $50.00 per month to the support of the child; and awarding the mother $750.00 attorneys’ fees. The appellant challenges only the order for child support and the allowance of attorneys’ fees, asserting that at the time of trial and at the time of judgment neither award was permissible under the law of this State. We overrule these contentions and affirm the judgment.

At the time this suit was filed (on June 25, 1974), and heard (on February 19, 1975), and when the judgment in question was rendered (on May 23, 1975), the law of this State required the father of a legitimate child to support the child; but it did not require the father to support his illegitimate child. Y.T.C.A., Family Code, §§ 4.02, 11.01, 13.05, 14.05. These statutes became effective January 1, 1974, per Acts 1973, 63rd Leg., p. 1411, ch. 543, §§ 1, 4.

Gomez v. Perez, (Tex.Civ.App.—San Antonio, 1971, writ ref., n. r. e.) 466 S.W.2d 41, is virtually identical with our case, factually. There, as here, the mother of an illegitimate child brought an action against the asserted biological father of the child to have him declared to be the father and to require him to support the child. There, as here, the support action was defended on the ground that there was no statutory or common law basis for requiring him to support an illegitimate child. There, as here, the finding that the defendant was the father was not questioned on appeal. There, as here, the law of this State required a father to support his legitimate child, but did not require him to support his illegitimate child. In that case, the appellate courts of Texas affirmed the trial court’s ruling “that there was no cause of action in this State to impose civil liability on the part of [the father] to support such illegitimate child.” This judgment was set aside by the U.S. Supreme Court in Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), as violative of the Equal Protection Clause of the 14th Amend., U.S. Const. The Court recognized that nowhere in the “elaborate statutory scheme” in Texas for child support by parents “does the State recognize any enforceable duty on the part of the biological father to support his illegitimate children” and that, “absent a statutory duty to support, the controlling law is the Texas common-law rule that illegitimate children, unlike legitimate children, have no legal right to support from their fathers.” But the Court reiterated its ruling in Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), and Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972), that “a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally”; and held that “once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother.”

This decision was made on January 17, 1973. 93 S.Ct. 872. It became the law of Texas at that time on the constitutional question involved. Ex Parte Twedell, 158 Tex. 214, 309 S.W.2d 834, 844 (1958); McKinney v. Blankenship, 154 Tex. 632, 282 S.W.2d 691, 694 (1955). When the Legislature later provided judicial relief against the father on behalf of a legitimate child for support, it necessarily provided the same relief on behalf of an illegitimate child. Stated another way, having provided judicial recourse on behalf of a legitimate child against its father for support, the State may not now deny that same action on behalf of an illegitimate child.

Under the terms of § 11.18 of the Family Code, reasonable attorneys’ fees may be awarded in child support cases. This suit being legally permissible, the award of attorneys’ fees was proper. Its reasonableness is not in question.

The judgment is affirmed.

      . See, also, Lane v. Phillips, 69 Tex. 240, 6 S.W. 610 (1887); Home Of Holy Infancy v. Kaska, (Tex.Sup., 1965) 397 S.W.2d 208, representing the case law upon which the statutory law was based. Effective September 1, 1975, Chapter 13 of the Family Code was broadly amended, by Acts 1975, 64th Leg., p. 1261, ch. 476, § 24. Provision is now made for paternity suits against the father of an illegitimate child and the creation of a parent-child relationship that requires him to support the child.


text:
    James KENNEDY, Appellant, v. Mildred Louise BECKER et vir., Appellees.
    No. 5513.
    Court of Civil Appeals of Texas, Waco.
    Dec. 4, 1975.
    Frank D. Kerbow, Austin, for appellant.
    Sneed, Vine, Wilkerson, Selman & Perry, Gretchen E. Raatz, Austin, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by appellant Kennedy from judgment terminating the parent-child relationship between appellant and his twelve year-old son.

Charles Dolen Becker and wife Mildred Louise Becker petitioned the trial court to terminate the parent-child relationship between appellant and his son Jay Patrick Kennedy. Mildred Louise Becker is the mother of the child, and Charles Dolen Becker is her present husband. The petition alleged that the child lived with petitioner and wife; that appellant had failed to support the child in accordance with his ability during a period of one year ending within six months of the date of filing of petition, and that termination of the parent-child relationship was in the best interest of the child.

Trial was before the court which after hearing found: that appellant failed to support the child in accordance with his ability during a period of one year ending within six months of the date of filing of petition; that termination would be in the best interest of the child; and decreed that the parent-child relationship between appellant and his son be terminated.

Appellant appeals on 2 points:
1) The Court erred in finding that appellant had failed to support his child in accordance with his ability during a period of one year ending within 6 months of the date of the filing of the petition, for there is no evidence that appellant had any income during such period of time.
2) The Court abused its discretion in finding that it is to the best interest of the minor child to grant the termination for the reason that such finding is against the great weight and preponderance of the evidence.

In a non-jury case the trial court is the judge of the credibility of the witnesses, and the weight to be accorded their testimony. Harrell v. Sunylan Co., 128 Tex. 460, 97 S.W.2d 686; White v. Chamberlain, NWH (Austin, Tex.Civ.App.) 525 S.W.2d 273.

Texas Family Code Section 15.02 empowers the court to grant a petition terminating the parent-child relationship upon a finding that the parent has: “(F) failed to support the child in accordance with his ability during a period of one year ending within [a] six-months [period] of the date of the filing of the petition; * * * ” and “(J) * * * (2) termination is in the best interest of the child.”

The petition here was filed on September 11, 1974, thus the relevant time period may be any one-year period beginning on any day during the six-month period from March 11, 1973.

The 1971 divorce decree ordered appellant to pay $25. per week child support beginning November 5, 1971. He has only made one $25. payment since that date, and has never sought modification of the decree. He testified he had given petitioner $400. or $500. but did not say when, and appellee denied that he ever gave her any money. It is true appellant was ill for a time and out of work for a time, but it is further in evidence he lived with his parents in the summer of 1973 and did plastering work for which he was paid $7.90 per hour; and he testified he did not pay the judicially ordered $25. per week because “the mother of the child said he didn’t have to”. The mother denied telling him such.

There was evidence the stepfather appel-lee contributed more than half of the support of the minor since September 1972; that the minor lives in appellee’s home with his mother and appellee stepfather; that the natural father was indifferent to his visitation privileges; that there was love and affection between the child and appel-lee stepfather.

The trial court had the opportunity to observe the demeanor, attitude and credibility of the witnesses and of the parties. In situations of this sort the trial judge must be accorded the right to exercise a large amount of discretion, and his judgment should be reversed only when it appears from the record as a whole that he has abused the discretion entrusted to him. Mumma v. Aguirre, Tex.S.Ct., 364 S.W.2d 220.

We think there is evidence that appellant did not support the child in accordance with his ability during a period of one year ending within 6 months of the date of filing of petition; and we cannot say from the record as a whole that the trial court abused his discretion.

Both appellant’s points are overruled.

Affirmed.


text:
    A. J. MIDDLETON, Appellant, v. Larry Ray VAUGHN et ux., Appellees.
    No. 5501.
    Court of Civil Appeals of Texas, Waco.
    Dec. 11, 1975.
    Woodrow P. Eason, Waco, for appellant.
    Haley, Fulbright, Winniford & Bice, Waco, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant from $350. judgment against him in an automobile collision case. The case was set for trial on April 14, 1975, on which date the trial court overruled defendant’s motion for a continuance, heard the case and rendered judgment for plaintiff for $350.

Defendant appeals on 5 points contending the trial court abused its discretion in not granting his motion for continuance.

Plaintiffs Vaughn and wife sued defendant Middleton alleging defendant made a left turn in front of plaintiffs’ vehicle causing a collision which resulted in damage to plaintiffs’ vehicle. Defendant answered by general denial filed on December 6, 1974. The case was set for trial for April 14,1975. On April 14, 1975 defendant filed amended answer alleging plaintiffs changed lanes without warning ramming their vehicle into the side of defendant’s vehicle. On April 14, 1975 defendant also filed motion for continuance under oath on account of the absence of Samuel Smith, an eye witness to the collision who would testify that “plaintiff changed lanes and ran into the auto being driven by defendant”; that the witness lived in Bell County; and agreed to come to Waco to testify but just before trial date refused to come as he had not recovered from “his auto accident”; that defendant would take the witness’ deposition or have the witness at a trial in Waco in 3 weeks; that defendant has used due diligence to procure testimony of the witness.

The trial court overruled the motion for continuance, heard the case without a jury, and rendered judgment for plaintiffs for $350. Defendant filed Motion for New Trial and Amended Motion for New Trial, and appeals from the overruling of such amended motion for new trial by operation of law.

Rules 251 and 252 TRCP provide among other matters that continuance may be granted for “sufficient cause”; that on an application for want of testimony the testimony must be material; that the party has used due diligence to procure the testimony; and that on first motion it is not necessary to show that the absent testimony cannot be procured from any other source.

The granting of a continuance rests in the sound discretion of the trial judge. Hernandez v. Heldenfels, S.Ct., 374 S.W.2d 196. The absence of a material witness is “sufficient cause”, but only if proper diligence has been used to procure the testimony of the witness. Fritsch v. J. M. English Truck Line, S.Ct., 246 S.W.2d 856.

In Fritsch, the court holds: “Except for the statement that the witness had orally agreed to appear as a witness when called, the motion [for continuance] did not seek to excuse for failure of defendant to place the witness under subpoena”, * * “nor to excuse the failure to take his deposition”. Rules 176 et seq. and 186 et seq. authorizes the placing of witnesses residing within 100 miles of the courthouse under subpoena to compel their attendance, and authorizes the taking of depositions. These rules if utilized offer parties ready and fairly certain means of procuring the testimony of witnesses who reside within 100 miles. And they offer parties absolute protection against being forced to trial without the benefit of the testimony of material witnesses. “If parties choose to forego their rights under these rules and resort to other and less effective and less certain means of procuring the testimony of material witnesses they must be held to their own risk and with foreknowledge that they will be put to trial without the benefit of the testimony”.

In the instant case defendant did not subpoena the witness and did not take his deposition, and alleged no reasons in his motion for continuance why he could not have done so.

In such circumstance we cannot hold that the trial court abused its discretion in overruling the motion.

Defendant’s points and contentions are overruled.

Affirmed


author: POPE, Justice.

text:
    TEXAS WOMAN’S UNIVERSITY, Petitioner, v. Vanida CHAYKLINTASTE et al., Respondents.
    No. B-5319.
    Supreme Court of Texas.
    Dec. 10, 1975.
    John L. Hill, Atty. Gen., William C. Bed-nar, Jr., Asst. Atty. Gen., Austin, for petitioner.
    Michael J. Whitten, Denton, for respondent.
   POPE, Justice.

Vanida Chayklintaste and Caroline-Anne Bolee instituted this suit on their own behalf and on behalf of a class of students, complaining of the constitutionality of a rule at Texas Woman’s University which required all undergraduate women students under the age of twenty-three to live in one of the campus dormitories. The trial court granted a permanent injunction which prohibits the University from enforcing the rule and the court of civil appeals affirmed the decree, holding that the rule was discriminatory on the basis of sex. 521 S.W.2d 949. The sufficiency of the class representation is not questioned.

The rule which was the basis for the constitutional attack is a very old one and is known in the academic community as the parietal rule, and it governs the residence of undergraduate students. The rule under attack with its important exemption provisions is:

“The following University policies govern housing:
“1. RESIDENTIAL PROVISION
“Every undergraduate woman student is required to live in a unit of the residential system.
“For residential purposes an ‘undergraduate’ is defined as a student 22 years of age or younger who has not yet received a B.A. or B.S. degree. A woman who ordinarily would be required to live in a University residence under this definition may obtain a waiver of this requirement from the University Housing Coordinator upon presenting satisfactory evidence that the student is married or is living with parents within commuting distance, or is a veteran of one of the armed services. Special hardship cases may be reviewed by the University Housing Committee.”

Vanida Chayklintaste is no longer enrolled at the University, and she did not testify. Miss Bolee testified that she was nineteen years of age and was a sophomore. Disciplinary action had been commenced against her when she moved to an apartment two miles off campus, and she then instituted this suit. Miss Bolee made no attempt to obtain an exemption from the rule by reason of hardship.

At oral argument before this court, the court was informed that the rule which was under attack has since been changed so that it now applies with equal force to both male and female students who are under twenty-three. The objection to the constitutionality of the rule by reason of sex has now become moot and hypothetical. Board of Trustees v. Kreger, 369 S.W.2d 916 (Tex.1963); Noland v. Maxey, 119 Tex. 462, 32 S.W.2d 822 (1930). There remains in the case, however, the question which was presented to the trial court and not discussed by the court of civil appeals: Does the rule’s applicability only to the students who are under twenty-three constitute an unconstitutional classification?

The age classification is constitutionally permissible if it is reasonable, not arbitrary and rests “upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971). When no suspect categories are involved, any rational basis may justify the classification. Johnson v. Robinson, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974); McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973).

In recent years the parietal rules of several state universities have been constitutionally challenged. Pratz v. Louisiana Polytechnic Institute, 401 U.S. 1004, 91 S.Ct. 1252, 28 L.Ed.2d 541 aff’d mem., 316 F.Supp. 872 (W.D.La.1970); Cooper v. Nix, 343 F.Supp. 1101 (W.D.La.1972), aff’d, 496 F.2d 1285 (5th Cir. 1974); Prostrollo v. University of South Dakota, 507 F.2d 775 (8th Cir. 1974); Poynter v. Drevdahl, 359 F.Supp. 1137 (W.D.Mich.1972); Mollere v. Southeastern Louisiana Polytechnic Institute, 304 F.Supp. 826 (E.D.La.1969). The cases seem to turn on the question of whether or not the universities implemented the rules for a legitimate educational purpose. In Pratz v. Louisiana Polytechnic Institute, supra at 885, the district court held that such a purpose existed:

It is argued that the parietal rules which we today uphold require students to live in dormitories “under the guise of having students receive a complete education through the ‘living and learning experience’ of campus communal living.” (Emphasis theirs.)
We simply do not feel the numerous outstanding educators, many of national renown, who submitted affidavits in this case to the effect that the living and learning center concept is a very valuable educational tool would say so unless this indeed was their sound, professional, expert opinion. It is a travesty of a sort even to infer they would be parties to any sort of disguised scheme to protect the interests of bondholders who bought the bonds within parietal covenants to protect their investments.
As already stated, the living and learning center concept was being followed here long prior to promulgation of the contested rules. Generation after generation of students have profited from such an experience. Only recently did this concept, formerly adhered to voluntarily, have to be placed in writing and made mandatory.

Prostrollo v. University of South Dakota, 507 F.2d 775, 782 (8th Cir. 1974), exhaustively considered the parietal rule in general and upheld a requirement that all freshmen and sophomore students live in the residence halls of the university. The court there concluded:

This parietal rule and its challenged classification are directed toward a permissible objective. The classification is not based on any patently invidious basis. We conclude that the rule is reasonable and not arbitrary and that it “bears a rational relationship to a permissible state objective.” See Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974); Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974); McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973). We find this test to be met here. Accord, Pratz v. Louisiana Polytechnic Institute, 316 F.Supp. 872 (W.D.La.1970), appeal dismissed, 401 U.S. 951, 91 S.Ct. 1186, 28 L.Ed.2d 234, aff’d, 401 U.S. 1004, 91 S.Ct. 1252, 28 L.Ed.2d 541 (1971); Poynter v. Drevdahl, 359 F.Supp. 1137 (W.D.Mich.1972).

As implemented in this case, the residence rule includes and applies equally to all students beneath twenty-three years of age, which class generally is that which applies to and includes undergraduate students. The Vice-President for Fiscal Affairs said that the rule was basically an educational one and that it was in existence before the time that bonded indebtedness was incurred against the residence and boarding facilities at the University. He said, however, that occupancy of the dormitories was essential to the University’s meeting its financial obligations.

The Vice President for Student Affairs, a professor of education, and an instructor of social work all testified that the parietal rule served a valid educational purpose. Texas Woman’s University is a residential liberal arts institution; the University administration believes that on campus dormitory life adds to the intellectual and emotional development of its students. A closer student-faculty relationship, an atmosphere of varied intellectual and political attitudes, and the opportunity to share diverse personal backgrounds and experiences were some of the factors which the University witnesses felt dormitory life adds to the students’ education. Two articles from professional educational journals also supported the University’s position. 54 Educational Record 3 (Summer 1973); 63 Educational Research 8 (April 1970).

The administration of Texas Woman’s University considers dormitory life an integral part of their undergraduate program. Although it was recognized that this type of educational experience may not be good for everyone, two witnesses for the University testified that they believed that the age bracket within this rule described closely “that group of students that would benefit most from the living and learning concept ..” The respondent offered no evidence on this point. The University has furnished a sufficient rationale for the classification. Therefore the trial court’s holding that the rule violates equal protection because of age discrimination is reversed.

Accordingly the judgments of the trial court and the court of civil appeals are reversed and the injunction dissolved.


author: REAVLEY, Justice.

text:
    SOUTHERN PACIFIC TRANSPORTATION COMPANY, Petitioner, v. Gussie F. STOOT, Respondent.
    No. B-5454.
    Supreme Court of Texas.
    Dec. 17, 1975.
    McLeod, Alexander, Powel & Apffel, Inc., Robert W. Alexander and James L. Anthony, Galveston, for petitioner.
    Baker, Coltzer, Allmond & Coltzer, Robert G. Coltzer, Galveston, for respondent.
   REAVLEY, Justice.

Pursuant to local rules and after hearing, the trial court dismissed for want of prosecution Gussie F. Stoot’s damage suit against Southern Pacific Transportation Company. The Court of Civil Appeals reversed the judgment of dismissal and remanded the cause for trial. 527 S.W.2d 765. We uphold the procedure and the decision of the trial court.

Stoot’s suit was filed on August 11, 1971, alleging an injury suffered on August 12, 1969, while alighting from a passenger train owned and operated by the defendant. Two years after the filing of the suit, it was placed on the dismissal docket. Stoot’s first motion for reinstatement was heard on October 2, 1973. That motion was granted and the case was set to be tried in November of 1973, but the setting was nullified on October 5 when the defendant effected the transfer of the case from the non-jury docket to the jury docket. There was no other activity in the case, other than the taking of the deposition of the plaintiff on January 31, 1974, until the case was placed on the drop docket on October 17,1974. Under the local rules of the four district courts of Galveston County, promulgated pursuant to Rule 817, Tex.Rules Civ.Proc., civil jury cases are automatically placed on the drop docket by the district clerk when they have been on file for over two (formerly three) years if there is then no setting for trial or other hearing. Notice is given to the parties of the status of the case and, after passage of thirty days following the mailing of the notice, the case is dismissed for want of prosecution unless a motion for reinstatement is filed. The rule was followed in the present case. Stoot filed a motion for reinstatement on November 15, 1974. The motion was heard and denied on December 17, 1974, and the judgment of dismissal was signed by the judge on January 2, 1975.

Delay haunts the administration of justice. It postpones the rectification of wrong and the vindication of the unjustly accused. It crowds the dockets of the courts, increasing the costs for all litigants, pressuring judges to take short cuts, interfering with the prompt and deliberate disposition of those causes in which all parties are diligent and prepared for trial, and overhanging the entire process with the pall of disorganization and insolubility. But even these are not the worst of what delay does. The most erratic gear in the justice machinery is at the place of fact finding, and possibilities for error multiply rapidly as time elapses between the original fact and its judicial determination. If the facts are not fully and accurately determined, then the wisest judge cannot distinguish between merit and demerit. If we do not get the facts right, there is little chance for the judgment to be right.

The case now on appeal was dismissed by the trial court five years, four months, and 21 days after the occurrence which this plaintiff says damaged him to the extent of $115,000. The passage of that much time presents substantial impediments to the full and fair determination of the facts in this case — or in any case.

The district judges of Galveston County recognized this problem, took responsibility for the condition of their dockets, and moved against the troubles of delay. They required all parties seeking affirmative relief to see that their cases were set for trial within a certain period of time. They provided a full opportunity for explanation to be made in those cases where there was cause for the delay. In this particular case the plaintiff had made no effort to bring his case to trial. No problems of complicated discovery interfered with its disposition. The only activity generated on the docket of the cause was at the instance of the defendant or of the trial court itself. The trial court, exercising judicial discretion, was clearly entitled to dismiss this cause for want of prosecution.

The Court of Civil Appeals and the brief filed on behalf of Stoot in this Court discuss that line of cases where dismissal for want of prosecution has been upheld on the ground that the party seeking relief “abandoned” his cause — or failed to exercise due diligence: Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85 (1957); Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489 (1942); Denton County v. Brammer, 361 S.W.2d 198 (Tex.1962); Missouri Pacific R. R. Co. v. Liberty County Water Control and Improvement Dist. No. 6, 483 S.W.2d 50 (Tex.Civ.App. 1972, writ ref’d n. r. e.); Petroleum Refining Co. v. McGlothlin, 429 S.W.2d 676 (Tex.Civ.App.1968, writ ref’d n. r. e.); Beckham v. Travelers Ins. Co., 487 S.W.2d 772 (Tex.Civ.App.1972, no writ). The question in those cases was whether the passage of time in itself, in the absence of satisfactory explanation, warranted the presumption of abandonment — or the legal conclusion that diligence had not been exercised. We need not decide whether the passage of over three years in itself would be sufficient to warrant a determination that Stoot had failed to exercise diligence, because that is not our case. Here the trial court has taken a reasonable and effective step to enforce the duty of diligence required of parties who seek relief in that court. The rules give notice to all who practice in the trial courts of Galveston County that all parties will be required to see to the disposition of their eases within the time stated or suffer dismissal. The counsel for plaintiff Stoot made no showing of good cause for his failure to meet the requirements of the rules of that court.

The judgment of the Court of Civil Appeals is reversed; the judgment of the trial court is here affirmed.

      . The following is the full text of this particular rule of the District Courts of Galveston County.
      RULE V — DROP DOCKET
      a) Civil non-jury cases, excepting tax cases, which have been on file over two (2) years, which are not set for trial or other hearing, shall be placed on the Drop Docket by the District Clerk.
      b) Civil jury cases, excepting tax cases, which have been on file over three (3) years, which are not set for trial or other hearing, shall be placed on the Drop Docket by the District Clerk.
      c) Commencing with the October, 1974, Term, civil jury cases, excepting tax cases, which have been on file over two (2) years, which are not set for trial or other hearing, shall be placed on the Drop Docket by the District Clerk.
      d) When a case has been placed on the Drop Docket as above provided, the District Clerk shall promptly send a notice of such fact to the last known address of counsel for all parties, and to the last known address of any party who is unrepresented by counsel. A copy of such notice shall be filed with the papers of the cause with notation thereon made by the District Clerk showing the name and address of all counsel or parties to whom notice was mailed and the date of mailing.
      e) Unless a written motion for reinstatement has been filed prior to the expiration of thirty (30) days after the mailing by the District Clerk of such notice, such case shall be dismissed for want of prosecution.
      f) Motions for reinstatement filed during such thirty (30) day period shall be called to the attention of the Judge of the Court in which the case is pending and shall be set down for hearing by that Judge more than ten (10) days after a copy of such motion and written notice of the time of the hearing is mailed to all parties or counsel of record. The original notice must show the names and addresses of all parties or counsel to whom copies of such notice were sent and the date of mailing same, such original notice shall be filed with the original papers of the cause. For good cause shown, the Judge may reset the hearing on the motion for reinstatement.
      g) An order reinstating a cause on the active docket shall, unless good cause be shown for not doing so, set the cause for trial on the merits on a day certain.


author: DALLY, Commissioner. DOUGLAS, Judge

text:
    Kevin Dale EVANS, Appellant, v. The STATE of Texas, Appellee.
    No. 50587.
    Court of Criminal Appeals of Texas.
    Dec. 10, 1975.
    Rehearing Denied Jan. 7, 1976.

      James M. Beauchamp, Houston, for appellant.
    Carol S. Vance, Dist. Atty., and James C. Brough, Alvin M. Titus and Ned Morris, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for possession of heroin; the jury assessed punishment at imprisonment for 9 years.

Appellant contends that the trial court erred in overruling his motion to suppress and in admitting into evidence the heroin that was seized. We agree and reverse the judgment.

The record reflects that on February 27, 1974, at about 11:00 p. m., several officers from the Houston Police Department and the Harris County Sheriff’s Department arrived at a Houston motorcycle shop known as “Chopper’s Fair.” The officers had in their possession arrest warrants for one Marion Ray Lester, who was being sought in connection with an attempted murder of a police officer; the officers had information that Lester was at the above location. There were sliding metal doors in the front of the motorcycle shop, and those doors were chained and padlocked. The officers knocked, identified themselves and informed those inside the building that they had arrest warrants for Lester; the person who answered passed keys to the padlock through a gap between the doors. After gaining entry to the building, the officers fanned out and conducted a search for Lester, who was not found on the premises. Behind the metal doors was a workshop where parts were stored and motorcycles were repaired. This work area was separated from attached living quarters by double glass doors which had been painted black. The living area consisted of a living room, a few small bedrooms and a hallway which led to the kitchen which was located in the back of the building. Officer White and Sergeant Thomas entered the kitchen area and found the appellant and two others seated at a table; in the center of the table was a clear plastic bag filled with purple tablets. Directly in front of the appellant on the table was a small tinfoil package; the appellant was toying with the tinfoil package with the blade of a pocket knife. After the three men were searched and taken to another part of the building, Officer White returned to the kitchen to retrieve the bag of tablets and the tinfoil package; in the package was a white powdery substance, later identified as heroin, which was admitted in evidence.

The questions presented may be summarized as follows: (1) was the arrest warrant for Marion Ray Lester valid under the two-prong test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), (2) since the arrest warrant was the means by which the officers gained entry to the building, if the warrant was invalid, was the consent to enter voluntarily given, and (3) if the consent was not voluntarily given, were the officers lawfully in a position to see the subject heroin in plain view in appellant’s possession?

The Supreme Court has held that the same standards set forth in Aguilar for hearsay affidavits supporting search warrants apply to those given in support of arrest warrants. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1970); Barnes v. Texas, 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818 (1965); Barnes v. State, 390 S.W.2d 266 (Tex.Cr.App.1965) (on remand). As applied to arrest warrants, Aguilar v. Texas, supra, would require that an affidavit based on hearsay that is used to support an arrest warrant must set out for the magistrate who issues the arrest warrant (1) underlying circumstances upon which the informer concluded that the named party committed the criminal act charged, and (2) the circumstances from which the affiant concluded the informer was credible or his information reliable.

The magistrate was shown a complaint and an affidavit; these documents are in the record before us. The pertinent portion of the complaint reads:

“IN THE NAME AND BY AUTHORITY OP THE STATE OF TEXAS:
“Before me, the undersigned Assistant District Attorney of Harris County, Texas, this day personally appeared the undersigned affiant, who upon his oath says that he has good reason to believe and does believe that in the County of Harris and State of Texas one MARION RAY LESTER hereinafter referred to as Defendant, heretofore on or about February 26, 1974, did then and there unlawfully intentionally and knowingly attempt to cause the death of Rodney Scott Morgan, hereafter called complainant by cutting with a knife and the said Complainant was a peace officer acting in the lawful discharge of an official duty and the said defendant then and there knew the said Complainant was a peace officer.”

The pertinent portion of the affidavit reads:

“WHEREAS complaint has been made by the undersigned affiant who upon his oath says that he has good reason to believe and does believe that in the County of Harris and State of Texas one MARION RAY LESTER hereinafter referred to as the Defendant, heretofore on or about February 26, 1974, did then and there unlawfully intentionally and knowingly attempt to cause the death of Rodney Scott Morgan, hereafter called Complainant, by cutting with a knife and the said Complainant was a peace officer acting in the lawful discharge of an official duty and the said Defendant then and there knew the said Complainant was a peace officer.
“PROBABLE CAUSE:
“F. G. Dodd personally observed and identified above Defendant acting as a principal in the commission of above offense.”

Both the complaint and the affidavit were signed by Officer John M. Donovan.

In determining the sufficiency of the affidavit we are bound by the four corners thereof. Art. I, Sec. 9, Texas Constitution; Art. 18.01, V.A.C.C.P.; Ruiz v. State, 457 S.W.2d 894 (Tex.Cr.App.1970); Gaston v. State, 440 S.W.2d 297 (Tex.Cr.App.1969) (concurring opinion), cert. denied sub nom. Gaston v. Texas, 396 U.S. 969, 90 S.Ct. 452, 24 L.Ed.2d 435 (1969); Sessions v. State, 498 S.W.2d 933 (Tex.Cr.App.1973); Cook v. State, 497 S.W.2d 295 (Tex.Cr.App.1973); Hegdal v. State, 488 S.W.2d 782 (Tex.Cr.App.1972); Wetherby v. State, 482 S.W.2d 852 (Tex.Cr.App.1972); Adair v. State, 482 S.W.2d 247 (Tex.Cr.App.1972); Polanco v. State, 475 S.W.2d 763 (Tex.Cr.App.1972); Nicol v. State, 470 S.W.2d 893 (Tex.Cr.App.1971); Hall v. State, 394 S.W.2d 659 (Tex.Cr.App.1965).

The charging instrument, the complaint, containing no allegations that the officer-affiant spoke with personal knowledge of the matters contained therein and not indicating any sources for the officer-affiant’s belief and not setting forth any other sufficient basis upon which a finding of probable cause could be made did not provide that necessary basis upon which a finding of probable cause could be made. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1970).

The affidavit contains no allegation of personal knowledge the alleged offense on the part of the affiant; therefore, the statements contained therein are hearsay and the affidavit must pass the two-prong Aguilar test. The affidavit does not state how the affiant acquired the information alleged in the affidavit; it does not state that Dodd was the informer; it does not state the name of an informer or allege that an unnamed informer gave the information to the affiant. The affidavit merely states that F. G. Dodd personally observed the named party Lester acting as a principal in the commission of the stated offense. This might satisfy the requirement that the informer state underlying facts from which he concluded the accused committed the offense charged, if the affiant also stated he had been told by F. G. Dodd that he (Dodd) had personally observed the commission of the offense. However, the affidavit does not state how the affiant came to know that Dodd had witnessed the offense; that is, the affidavit does not allege that Dodd communicated with the affiant at any time. Looking only to the affidavit, it is open to the interpretation that yet another unnamed person communicated to the affi-ant information to the effect that Dodd had been a witness to the commission of the offense. If that were the case, the affidavit would contain so-called “double hearsay.” Of course, the mere fact that an affidavit contains “double hearsay” does not automatically make it insufficient to supply probable cause. The inclusion of hearsay upon hearsay may be simply treated as one of the factors the magistrate weighs in determining whether the information contained in the affidavit is reliable. On the other hand, it has also been held that:

“. . . hearsay based on hearsay should be acceptable as long as the police officer has sufficient information so that both levels of hearsay meet the two-pronged test spelled out in Aguilar.” United States v. Wilson, 479 F.2d 936 (7th Cir. en banc 1973).

Also see, United States v. Carmichael, 489 F.2d 983 (7th Cir. en banc 1973); United States v. Finn, 502 F.2d 938 (7th Cir. 1974); Aguilar v. State, supra, footnote 4. Under the latter line of cases, and interpreting the affidavit such that another, unnamed person communicated to the affiant information to the effect that Dodd had been a witness to the commission of the offense, the affidavit before us contains neither underlying circumstances upon which the informer concluded that the named party was involved in criminal activities nor circumstances from which the affiant concluded the informer was credible or his information reliable, and would therefore be insufficient under both prongs of Aguilar.

Even if we were to assume that Dodd personally communicated with the af-fiant, the affidavit clearly fails to satisfy the second prong of Aguilar. There is no indication of who Dodd is or why the affi-ant considers him to be credible or his information reliable. We do note that Aguilar and its progeny generally involve informers whose names are concealed for security reasons. However, the assumption that the hearsay affidavit before us contains a named informer does not change the requirement that the affidavit pass the Aguilar two-prong test. The informer in the affidavit before us is unidentified; an informer’s name, with nothing more, does not supply a neutral magistrate with the necessary indicia of reliability upon which to base a finding of probable cause. Thus, with respect to the second prong of Aguilar, the affidavit before us is clearly deficient. Kemp v. State, 464 S.W.2d 141 (Tex.Cr.App.1971); Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973).

It has been held that a hearsay affidavit, otherwise insufficient under Aguilar, may be buttressed with corroborating facts obtained in surveillance or information obtained from other sources. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Polanco v. State, 475 S.W.2d 763 (Tex.Cr.App.1972). The facts recited for corroboration purposes must, however, be based upon the personal knowledge of or observations by the affiant. Ruiz v. State, 457 S.W.2d 894 (Tex.Cr.App.1970) (concurring opinion). The affidavit before us contains no such corroborating facts as are calculated to bring into play this means of buttressing an insufficient affidavit.

It has also been indicated by the Supreme Court, though not specifically held, that a declaration against penal interest on the part of an informer, contained in the affidavit, may be sufficient to support the reliability and credibility of an informer. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). See also, Abercrombie v. State, 528 S.W.2d 578 (Tex.Cr.App., decided Oct. 15, 1975). However, the affidavit before us contains no such declaration against penal interest on the part of F. G. Dodd.

We note, as we did in Bridger v. State, 503 S.W.2d 801 (Tex.Cr.App.1974), that:

“We do not intend to be overly strict or technical in our interpretation of affidavits supporting search warrants, recognizing that they must be written by working officers having limited time. We adhere to the ‘common sense’ interpretations of such affidavits, but in doing so we must stay within the boundaries of constitutional requirements.” 503 S.W.2d at 803.

We must conclude that the affidavit before us provided the magistrate with no basis for an independent determination of probable cause and the arrest warrant that issued was not valid. See Lowery v. State, supra; Kemp v. State, supra; Ruiz v. State, supra (concurring opinion, footnote No. 2).

The State contends that the legality of the seizure of the heroin is not dependent upon a showing of consent to enter to execute the arrest warrant. This contention rests upon the assumed validity of the warrant for the arrest of Marion Ray Lester; this assumption is incorrect inasmuch as we have held the arrest warrant to be invalid.

The appellant was arrested as a result of Officer White’s having seen him in possession of the package of heroin. Contraband which is in plain view may be lawfully seized without a warrant by an officer who is lawfully on the premises. See, e. g., Alberti v. State, 495 S.W.2d 236 (Tex.Cr.App.1973); Legall v. State, 463 S.W.2d 731 (Tex.Cr.App.1971); Elliott v. State, 450 S.W.2d 863 (Tex.Cr.App.1970); Jackson v. State, 449 S.W.2d 279 (Tex.Cr.App.1970); Simpson v. State, 486 S.W.2d 807 (Tex.Cr.App.1972). The question raised here is whether or not Officer White was lawfully in a position to see the commission of the offense of possession of heroin in “plain view.” In light of the invalidity of the arrest warrant, we must decide whether the warrantless search of the premises properly followed a voluntary consent by the occupants to enter the building to serve the arrest warrant. Therefore, consent is an issue here.

An individual may waive the protections afforded by the Fourth Amendment to the United States Constitution against unreasonable searches and seizures by consenting to a search. E. g., Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Allen v. State, 487 S.W.2d 120 (Tex.Cr.App.1972); Paprskar v. State, 484 S.W.2d 731 (Tex.Cr.App.1972); DeVoyle v. State, 471 S.W.2d 77 (Tex.Cr.App.1971). However, the burden is upon the prosecution to show the consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The burden requires the prosecution to show the consent given was positive and unequivocal, and there must not be duress or coercion, actual or implied. Allen v. State, supra.

A search cannot be justified as lawful on the basis of consent where that “consent” has been given only after the official conducting the search asserts that he has a warrant. Bumper v. North Carolina, supra; Stephenson v. State, 494 S.W.2d 900 (Tex.Cr.App.1973). In Bumper, the Supreme Court said:

“The issue thus presented is whether a search can be justified as lawful on the basis of consent when that ‘consent’ has been given only after the official conducting the search has asserted that he possesses a warrant. We hold that there can be no consent under such circumstances.
“When a prosecutor seeks to rely upon a consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid.
“When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion— albeit colorable lawful coercion. Where there is coercion, there cannot be consent.” 391 U.S. 543, at 548-550, 88 S.Ct. 1788, at 1791, 20 L.Ed.2d 797.

Officer Ruchti testified that he initially knocked on the doors of the building and identified himself and those with him as police officers. Officer White testified that the offense report he dictated indicated that the occupants of the building were informed the officers possessed two arrest warrants for Marion Ray Lester before the keys were passed between the doors. Detective Donovan testified that Detective Hanning informed the occupants that he possessed arrest warrants for Lester. Detective Hanning, the lead officer, testified that he told the occupants of the building he had warrants for Lester’s arrest and that, after so informing the occupants, someone passed the keys to the padlock through the gap between the doors.

The record conclusively shows that the officers gained entry to the building by announcing that they had arrest warrants for Lester, effectively informing the occupants that they had “no right to resist the search.” See Art. 15.25, V.A.C.C.P.

Submission to authority cannot here be disguised as a free and voluntary consent to search. We find that the consent to enter and search the premises was not freely and voluntarily given. We therefore hold that Officer White was not lawfully on the premises when he seized the heroin and it should not have been admitted in evidence.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

DOUGLAS, Judge

(concurring).

The result reached is correct, but that part of the affidavit as follows:

“PROBABLE CAUSE:
“F. G. Dodd personally observed and identified above Defendant acting as a principal in the commission of above offense.”

states facts upon which the affidavit was made. Thus, only one of the requirements of Aguilar v. Texas, 387 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the reliability of the informant, is missing, not both as held by the majority.

      . Aguilar v. Texas, supra, footnote 4 reads:
      “To approve this affidavit would open the door to easy circumvention of the rule announced in Nathanson [Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159] and Giordenello. A police officer who arrived at the ‘suspicion,’ ‘believe’ or ‘mere conclusion’ that narcotics were in someone’s possession could not obtain a warrant. But he could convey this conclusion to another police officer, who could then secure the warrant by swearing that he had ‘received reliable information from a credible person’ that the narcotics were in someone’s possession.”

      .In United States v. Smith, 462 F.2d 456 (8th Cir. 1972), it was said that:
      “It is not unusual for an affidavit of a law enforcement officer to contain hearsay information from an informant, which, in turn, is based on other information gathered by that informant. See Spinelii v. United States, 393 U.S. 410, at 416-417, 89 S.Ct. 584, 21 L.Ed.2d 637, discussing Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Therefore, when a magistrate receives an affidavit which contains hearsay upon hearsay, he need not categorically reject this double hearsay information. Rather, he is called upon to evaluate this information as well as all other information in the affidavit in order to determine whether it can be reasonably inferred ‘that the informant had gained his information in a reliable way.’ Spinelii, supra, 393 U.S. at 417, 89 S.Ct. at 589. The magistrate must canvas the affidavit and the informer’s tip as a whole and measure it against Aguilar standards in order to assess its probative value.”
      And see, United States v. Fiorella, 468 F.2d 688 (2d Cir. 1972); United States v. McCoy, 478 F.2d 176 (10th Cir. 1973), cert. denied, 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62 (1973). See also, United States v. Kleve, 465 F.2d 187 (8th Cir. 1972).

      . We note that on the bottom of the complaint which accompanied the affidavit shown the magistrate there appears the following:
      “WITNESS FOR THE EXAMINING TRIAL: F. G. DODD 1240HPD.”
      The meaning of this inscription is not clear. We suppose that it might be the badge number of a police officer of the Houston Police Department. On the other hand, it could well be the number of a complaint filed by F. G. Dodd. Of course, it might mean something entirely different. In any event, this notation adds nothing to the complaint and affidavit which would provide a sufficient basis upon which a finding of probable cause could be made.

      . There are few cases on this point; however, it is inescapable that a mere name, with no additional information to enable the magistrate to determine the reliability of the named person, is no more sufficient than the bare phrase, “confidential informer.” See U. S. v. Cotham, 363 F.Supp. 851 (W.D.Tex.1973), where the Aguilar test is applied to an affidavit containing a named informant.

      . We note that Officer Ruchti took the stand when the State reopened during the pretrial suppression hearing; his testimony that he did nothing other than identify himself as a police officer before the keys were passed out is consistent with that of the other officers who testified that it was Detective Han-ning, the lead officer, who informed the occupants that he had arrest warrants, whereupon the keys were passed through the doors to Officer Ruchti.

      . Art. 15.25, V.A.C.C.P. provides:
      “In case of felony, the officer may break down the door of any house for the purpose of making an arrest, if he be refused admittance after giving notice of his authority and purpose.”


author: ODOM, Judge. ROBERTS, J.,

text:
    James Lee BANKS, Appellant, v. The STATE of Texas, Appellee.
    No. 50167.
    Court of Criminal Appeals of Texas.
    Dec. 17, 1975.
    Rehearing Denied Jan. 14, 1976.

      Sam Saleh and Ricky Smith (Both court-appointed) Lamesa, for appellant.
    Joe Smith, Dist. Atty., Seminole, Jim D. Yollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

The conviction was for the offense of aggravated rape alleged to have occurred on or about October 4, 1974. The jury assessed punishment at twenty years.

The first ground of error contends that appellant was denied due process of law in that his indictment fails to allege all the elements of the offense for which he was convicted.

The indictment contained two counts. The first sought to allege rape (V.T.C.A. Penal Code, Sec. 21.02); the second, aggravated rape (V.T.C.A. Penal Code, Sec. 21.-03). The charging part of the second count, upon which appellant’s conviction rests, states that appellant did

“intentionally and knowingly by threats, that would prevent resistance by a woman of ordinary resolution, compel M_E_S_, a female not his wife, to submit to sexual intercourse without her consent; and the said James Lee Banks did then and there intentionally and knowingly compel M_E. S_to submit to sexual intercourse by threat of death to be imminently inflicted on M_ E. S-against the peace and dignity of the State.”

V.T.C.A. Penal Code, Sec. 21.03, provides in pertinent part:

“(a) A person commits an offense if he commits rape as defined in Section 21.02 of this code . . . and he .
“(2) compels submission to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone. . . . ”

Section 21.03(a)(2) is sufficiently alleged in the indictment. The determination whether Sec. 21.03(a) is sufficiently alleged must rest upon an examination of Sec. 21.02, to which Sec. 21.03 alludes. Section 21.02 provides in pertinent part:

“(a) A person commits an offense if he has sexual intercourse with a female not his wife without the female’s consent.
“(b) The intercourse is without the female’s consent under one or more of the following circumstances:
“(2) he compels her to submit or participate by any threat that would prevent resistance by a woman of ordinary resolution . .

Section 21.02(b)(2) is sufficiently alleged in the indictment. Appellant’s complaint is that Section 21.02(a) is not. He argues that the indictment nowhere alleges that the appellant engaged in sexual intercourse with anyone.

When the indictment is read as a whole and considered in its entirety, it sufficiently alleges that appellant had sexual intercourse with the prosecutrix. Clark v. State, Tex.Cr.App., 527 S.W.2d 292. The first ground of error is overruled.

The second ground of error asserts that the indictment failed to allege that the prosecutrix was not appellant’s wife, an element of the offense of rape. An examination of the indictment reveals otherwise and the ground of error, therefore, is without merit.

The third ground of error urges the insufficiency of the evidence to prove that the prosecutrix was not appellant’s wife. The record reflects that the prosecutor upon direct examination inquired of prose-cutrix as follows:

“Q. Now, you are married to Bill S_, are you not?
“A. Don William. He goes by Bill.
“Q. And the man that has been pointed out to you [the appellant] is not your husband?
“A. No, sir, he is not.”

The ground of error is without merit and overruled.

In the fourth ground of error appellant contends that the trial court erred in allowing the prosecutrix in court to identify the appellant as her assailant. He complains that appellant had no counsel present when the prosecutrix identified him during a one-man showup conducted at the police station a few hours after the offense was committed. He contends that the showup therefore tainted the in-court identification.

Appellant relies upon United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), and Martinez v. State, Tex.Cr.App., 437 S.W.2d 842. Such reliance is misplaced.

The showup, although conducted a short time after appellant had been arrested, occurred before he had been indicted or otherwise formally charged with criminal conduct. The presence of counsel is not required until “at or after the initiation of adversary judicial proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972).

The showup, therefore, was not illegal per se for lack of counsel. The confrontation may, nevertheless, under the totality of the circumstances, have been “so unnecessarily suggestive and conducive to irreparable mistaken identification that [appellant] was denied due process of law.” Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). Accord, Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Although we do not construe appellant’s ground of error as contending that his showup violated this general due process standard, we have in the interest of justice scrutinized the circumstances surrounding the showup with a view toward determining whether such a violation occurred. Art. 40.09(13), V.A.C. C.P.

The offense occurred in daylight. The prosecutrix had ample opportunity to observe the facial and other physical characteristics of the appellant. She viewed the appellant at the police station only hours after the commission of the offense and immediately identified him. The police officer who had asked her to come to the station merely stated that a suspect was in custody who matched the description she had given. Moreover, she testified that her in-court identification of appellant was based solely upon her observations during the commission of the offense. Under the totality of the circumstances, no violation of due process has been shown. The fourth ground of error is overruled.

In the fifth ground of error appellant contends that the evidence was insufficient to show that venue was proper in Gaines County. Article 13.15, V.A.C.C.P., provides that rape may be prosecuted in the county in which it is committed. Article 13.17, V.A.C.C.P., provides in pertinent part:

“To sustain the allegation of venue, it shall only be necessary to prove by the preponderance of the evidence that by reason of the facts in the ease, the county where such prosecution is carried on has venue.”

In the instant case, the prosecutrix testified that the rape occurred no more than three miles from Seminole, the county seat of Gaines County, and that her “best guess” as to the distance appellant drove her from Seminole was two miles. The prosecutor then inquired of her as follows:

“Q. Do you know whether or not that is in Gaines County, Texas?
“A. I would think it is, but I am not sure.”

This evidence was sufficient to support, by a preponderance of the evidence, a finding that venue was proper in Gaines County. Phillips v. State, Tex.Cr.App., 459 S.W.2d 632. See also Hignite v. State, Tex.Cr.App., 522 S.W.2d 210; Esquivel v. State, Tex.Cr.App., 506 S.W.2d 613; Williams v. State, Tex.Cr.App., 481 S.W.2d 119. The ground of error is overruled.

In the sixth ground of error appellant contends the trial court erred in refusing his requested charge on the definition of “threat” and “threat of death” within the meaning of V.T.C.A. Penal Code, Sec. 21.02(b)(2) and V.T.C.A. Penal Code, Sec. 21.03(a)(2), respectively, and argues that the charge should explain the meaning of these terms where the case demands it. The authorities relied upon and the definitions requested, however, state the meaning of “threats” under Article 1185, V.A.P.C., which was not the law governing the trial of the instant case. The court here charged the jury, “The intercourse is without the female’s consent if he compels her to submit or participate by any threat that would prevent resistance by a woman of ordinary resolution.” Applying the law to the facts of the case, the charge further required the jury to find, before they could convict appellant, that submission was compelled “by threats that would prevent resistance by a woman of ordinary resolution.” This charge correctly explained “what is meant by . . . threats, as a part of the case,” (Jones v. State, 10 Tex.App. 552, 559) as that term is now used in V.T.C.A. Penal Code, Sec. 21.02(b)(2). The ground of error is overruled.

Finally, appellant contends that the evidence is insufficient to support a conviction for aggravated rape in that the testimony of the prosecutrix was ambiguous or contradictory as to her fear of the appellant. At one point she stated that she did not fear that appellant would kill her. At another, she stated that “I felt sure that if he decided to kill me he would kill me. . . ”

The prosecutrix was certain, however, that appellant threatened to kill her several times. By virtue of such threats and the pistol he carried throughout the episode, appellant compelled submission to his desires. This evidence was sufficient to support the jury’s verdict. The ground of error is without merit and is overruled.

There being no reversible error, the judgment is affirmed.

ROBERTS, J.,

dissents for the reasons stated in the dissenting opinion in Clark v. State, 527 S.W.2d 295.

      . Although this writer dissented in Clark, supra, we are nevertheless bound by the decision of this Court establishing the above stated test for determining the sufficiency of an indictment. However, the indictment in this case should not be followed as a sound model for future pleading. Had a motion to quash been filed on the grounds now urged, an entirely different question would have been presented and a different result may well have been reached.


author: MORRISON, Judge.

text:
    Frank RODRIQUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 50721.
    Court of Criminal Appeals of Texas.
    Dec. 17, 1975.
    Rehearing Denied Jan. 14, 1976.

      Thomas Rocha, Jr., San Antonio, for appellant.
    James A. Mashburn, Dist. Atty., Jack K. Wall, Asst. Dist. Atty., Midland, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is delivery of heroin; the punishment, enhanced by V.T.C.A., Penal Code, Sec. 12.42(d), life.

By ground of error one appellant contends that his court appointed counsel Bearden had a conflict of interest because he was representing a possible witness in the instant case in a workmen’s compensation claim. The appellant was represented by two court appointed attorneys.

The State’s undercover narcotics officer Howard testified that he, in company with Elmer Don Culp and Felix Hernandez, met the appellant and made arrangements to buy heroin. Later in the day Culp accompanied Howard to appellant’s house and remained in the automobile while Howard went into the appellant’s home and bought the heroin. It was developed that attorney Bearden became Culp’s civil lawyer some two days after Bearden was appointed to aid in the representation of the appellant. Culp was not subpoenaed or called as a witness. Appellant did not testify or assert a defensive theory. We are at a loss to conclude that there could have been any conflict of interest on the part of attorney Bearden, nor do we see how the testimony of Culp could have aided the defense had he been called.

This case is distinguishable on the facts from the cases relied upon by appellant. In Castillo v. Estelle, 504 F.2d 1243 (5th Cir. 1974), the court appointed defense attorney also represented a principal witness for the prosecution in an unrelated civil matter. Porter v. United States, 298 F.2d 461 (5th Cir. 1962), involved representation of a police officer in an investigation for illegal narcotic activities. The defensive issue raised was entrapment, and this officer’s testimony would have been material to the defense had he testified. Randazzo v. United States, 339 F.2d 79 (5th Cir. 1964), concerned the representation by one attorney of two co-defendants with adverse interests.

By ground of error two appellant contends that the court erred in declining to permit him to discharge his appointed counsel and employ one of his own choice. There is no showing that appellant was able to employ an attorney, or whom he planned to retain. This motion was first made at 1:30 p. m. on the day the case was set for trial. It has long been the rule as quoted in Estrada v. State, Tex.Cr.App., 406 S.W.2d 448:

“An accused’s right to select his own counsel, however, cannot be insisted upon or manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice. United States v. Bentvena, 2 Cir., 319 F.2d 916, 936.”

See Smith v. State, Tex.Cr.App., 493 S.W.2d 154; Rogers v. State, Tex.Cr.App., 488 S.W.2d 833; Miller v. State, Tex.Cr.App., 479 S.W.2d 670; Robinson v. State, Tex.Cr.App., 458 S.W.2d 75; Herring v. Estelle, 41 F.2d 125. See also Viges v. State, Tex.Cr.App., 508 S.W.2d 76; Melton v. State, Tex.Cr.App., 508 S.W.2d 104.

Appellant’s third ground of error is multifarious in combining two separate complaints and is not in compliance with Article 40.09, Sec. 9, V.A.C.C.P. Nothing is presented for review. Stein v. State, Tex.Cr.App., 514 S.W.2d 927; Thompson v. State, Tex.Cr.App., 510 S.W.2d 949.

Ground of error four relates to argument. During his argument defense counsel anticipated that the prosecutor might ask, “Why didn’t Bearden bring Culp? He is one of his clients.” It therefore was not error for the prosecutor to argue, “Why didn’t Mr. Bearden call his client?” in reference to Culp. We further find no objection; hence, nothing is presented for review. Jackson v. State, Tex.Cr.App., 516 S.W.2d 167; Boykin v. State, Tex.Cr.App., 516 S.W.2d 946.

Ground of error five contends that the court erred in denying his oral motion for continuance made during the course of the trial so that he might secure the testimony of Felix Hernandez. There is no showing by affidavit or otherwise made at the hearing on the motion for new trial as to what Hernandez’ testimony would have been. No error is shown. Allen v. State, Tex.Cr.App., 505 S.W.2d 923; Articles 29.03, 29.06, 29.08, V.A.C.C.P.

Finding no reversible error, the judgment is affirmed.