author: SHRIVER, Presiding Judge.

text:
    Lenarta ANDERSON, Plaintiff-Appellee, v. Willard HAYES, J. H. Burnette, Robert White and Clay County, Tennessee [Clay County, Tennessee, Defendant-Appellant].
    Court of Appeals of Tennessee, Middle Section.
    June 30, 1978.
    Certiorari Denied by Supreme Court Nov. 27, 1978.
    Robert L. Johnson, Gainesboro, Donald G. Dickerson, Cookeville, for plaintiff-appellee.
    J. H. Reneau, Jr. and J. H. Reneau, III, Reneau & Reneau, Celina, for defendant-appellant.
   OPINION

SHRIVER, Presiding Judge.

Plaintiff, Lenarta Anderson, brought suit in the Circuit Court of Clay County pursuant to the provisions of the Governmental Tort Liability Act, Sections 23-3301, et seq., T.C.A., to recover for the wrongful death of her husband, Glynn Anderson, by the alleged negligent act of a Deputy Sheriff of Clay County who, in an attempted arrest of her husband, shot and killed him.

The case was tried by Judge Thomas H. Haile without the intervention of a jury and resulted in a judgment against Clay County for $20,000.00, from which the County appealed to this Court and has assigned errors.

—The Pleadings and Facts—

Plaintiff originally sued the Deputy Sheriff, Willard Hayes, and the two sureties on his bond and Clay County. However, a non-suit was entered as to all defendants except Clay County.

The complaint charges that in December 1974, Glynn Anderson, deceased, was a passenger in an automobile driven by Norman Thomas; that Clay County Deputies, including one Willard Hayes, were attempting to stop the automobile and arrest the occupants; that the automobile ultimately stopped and Glynn Anderson ran from the automobile; that Deputy Sheriff Hayes attempted to fire a warning shot over the head of Glynn Anderson to get him to stop; that Deputy Sheriff Hayes negligently aimed his firearm; that the bullet struck Anderson in the back of the head, killing him; that the death of Anderson was due to Deputy Sheriff Hayes’ negligence in aiming the pistol and in using deadly force under the circumstances of the arrest.

The foregoing allegations of fact are not in dispute.

The defendant, Clay County, in its answer asserted that it had not waived its governmental immunity and, therefore, was not subject to plaintiff’s suit. It was also alleged that plaintiff had failed to give notice as required by T.C.A. § 23-3314, and that this failure was a bar to plaintiff’s action, and that Anderson’s death was not due to the negligence of the Deputy Sheriff but was due to his own negligence in fleeing and failing to stop after the Deputy had announced his intention to arrest him and, furthermore, that the arrest was lawful under T.C.A. § 40-803.

The answer admits that Willard Hayes was, on December 13, 1974, a duly appointed and acting Deputy Sheriff for Clay County.

With leave of Court, plaintiff amended her complaint by adding the following:

“In the alternative and not being bound by the statement in Paragraph I, plaintiff alleges that the County is liable for the negligent actions of Willard Hayes under T.C.A. § 8-833 and § 8-834.-"

Clay County answered the Amended Complaint, asserting:

“1. That the Amended Complaint was not filed within one year of the date the cause of action allegedly arose and is therefore barred by the Statute of Limitations.
2. And not waiving the defense of the Statute of Limitations, Clay County, Tennessee says that it is not liable for the acts of Willard Hayes as alleged in said Amended Complaint under the provisions of § 8-833, et seq., T.C.A.”

—JUDGMENT—

On October 22, 1977, the following Judgment was entered:

“JUDGMENT
This cause came on to be heard on the 28th day of September, 1977, at Celina, Tennessee, by and before the Honorable Thomas H. Haile, Circuit Judge, upon the motion of the defendant, Clay County, Tennessee, for a jury trial. The Court, after argument of counsel, is of the opinion and so finds that the defendant is not entitled to a jury trial insofar as Counts One through Five of the complaint are concerned because said Counts are predicated upon § 23-3301, Tennessee Code Annotated, the ‘Governmental Tort Liability Act’ and because § 23-3319 of said Act provides that actions under the Act are to be tried without the intervention of a jury. The Court is of the further opinion and so finds that insofar as Count Six of the Amended Complaint is concerned, which count is predicated upon § 8-833, Tennessee Code Annotated, the defendant is not entitled to a jury trial because the defendant is a governmental entity not suable at common law and therefore not guaranteed a jury trial by the Constitution of Tennessee.
Thereupon the case came on to be further and finally heard by the Court without intervention of a jury. The Court, after considering the entre record in the case, the testimony of witnesses and the argument of counsel, is of the opinion and so finds that at the time of occurrence on Friday, December 13,1974, Willard Hayes was acting as a Deputy Sheriff of Clay County, Tennessee; that at the time of the occurrence as a Deputy he was acting by virtue of and under color of his office as Deputy Sheriff; that the Deputy’s act was an act of negligence, although not an act of willful conduct or intentional wrong; that the said Glynn Anderson, deceased, was not guilty of contributory negligence and that the proximate cause of the death of Glynn Anderson was the act of negligence on the part of the Deputy Sheriff, Willard Hayes; that the defendant, Clay County, Tennessee, came within the provisions of the ‘Governmental Tort Liability Act’ and had not by resolution exempted itself from the provisions of said Act at the time of the alleged injury; that Clay County, Tennessee had sufficient knowledge of the occurrence that no formal written notice was necessary; that the cause of action does not fall within the exceptions as defined in § 23-3311, Tennessee Code Annotated; that the plaintiff has suffered damages in the amount of Twenty Thousand Dollars ($20,000.00) and that the cause of action accrues under the ‘Governmental Tort Liability Act,’ § 23-3301, Tennessee Code Annotated, and not under § 8-833, Tennessee Code Annotated. All of which is so found and adjudged.
It is therefore ORDERED and ADJUDGED by the Court that the plaintiff, Lenarta Anderson, have and recover of the defendant, Clay County, Tennessee, the sum of Twenty Thousand Dollars ($20,000.00) together with the costs of the cause.
It is further ORDERED and ADJUDGED that the cause of action set forth in Paragraph Six of the complaint as amended is dismissed.
To the foregoing action of the Court the defendant, Clay County, Tennessee, respectfully excepts and prays an appeal to the next term of the Court of Appeals at Nashville, which appeal is granted upon the defendant giving bond as provided by statute. The defendant is allowed ninety (90) days from the filing of this Judgment within which to file its Bill of Exceptions.
This 19th day of October, 1977.
/s/ Thomas H. Haile
CIRCUIT JUDGE”

The motion of defendant, Clay County, for a new trial was heard and overruled and the appeal of said defendant was duly perfected.

—Assignments of Error—

There are four assignments, as follows:

“1. The Trial Judge erred in failing to sustain appellant’s plea of governmental immunity.
2. The appellee, Lenarta Anderson, failed to prove that the Governmental Tort Liability Act, Section 23-3301, et seq., T.C.A., was applicable to Clay County on December 13, 1974, the date the cause of action allegedly arose.
3. The appellee, Lenarta Anderson, failed to give the written Notice as required by Section 23-3313, T.C.A., which Notice is a condition precedent to any recovery and failure of which is a valid and complete defense to any liability a governmental entity might otherwise have.
4. The evidence preponderates against the Circuit Judge’s finding of fact that the deputy was negligent in attempting to arrest Anderson and instead establishes that the arrest was lawful and that the death ensued as the result of a lawful act for which there would be no liability.”

—Our Conclusions—

It is to be noted that there was no appeal from the action of the Court in dismissing the Amended Complaint which was based on liability under T.C.A. § 8-833, et seq., hence, the question raised by said Amended Complaint is not before us on this appeal.

There is no assignment of error challenging the Court’s action in denying the parties a jury trial.

The statutes involved herein are contained in Chapter 33, “Governmental Tort Liability,” and provide in pertinent part:

“23-3301. Title — This shall be known and cited as the ‘Tennessee Governmental Tort Liability Act.’ [Acts 1973, ch. 345].” Section 23-3311 provides:
“23-3311. Removal of immunity for injury caused by negligent act or omission of employees — Exceptions.—Immunity from suit of all governmental entities is removed for injury proximately caused by a negligent act or omission of any employee within the scope of his employment except if the injury:
(2) arises out of false imprisonment pursuant to a mittimus from a court, false arrest, malicious prosecution, intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of mental anguish, invasion of privacy, or civil rights . . . .”

Section 23-3313 provides that any person having a claim for injury to person or property against a governmental entity or its employee must give written notice, as provided in Section 23-3314 as a condition precedent to any recovery.

Section 23-3314 provides that a claim against a governmental entity shall be forever barred unless notice thereof is filed within one hundred and twenty days after the cause of action arises except for injury resulting from operation of a motor vehicle. Under this section it is also provided as follows:

“This section shall not be strictly construed where the municipality has been reasonably apprised of the occurrence of the incident from which the claim results and, by such notice, with the exercise of proper diligence, the municipality could have apprised itself of the circumstances relating to the incident.”

It is the insistence of counsel for appellant that Clay County is immune from this type of action, it being argued that the cause of action arises out of and is predicated upon an assault and battery by a Deputy Sheriff in the course of his employment during an arrest which resulted in the death of the one sought to be arrested.

Counsel insists that Section 23-3311, T.C.A. is applicable in this case and that the allegations of the complaint bring the case within the provisions of subsection (2) of the section which provides that governmental immunity is not waived when the injury “arises out of false imprisonment pursuant to a mittimus from a court, false arrest, malicious prosecution, intentional trespass ... or civil rights ...”

It is pointed out by counsel for the appellant that our Supreme Court decided the case of Potter v. City of Chattanooga on October 10, 1977, subsequent to the judgment in the case at bar, which case is published in 556 S.W.2d 543.

The opinion in Potter, written by Chief Justice Cooper, recites that the suit was brought against the City to recover for injuries arising out of an alleged false arrest of plaintiff and a subsequent battery allegedly committed by the City’s agent after plaintiff was taken to the City Jail. The Law Court of Hamilton County dismissed the complaint and the Supreme Court held the City was immune from liability for such alleged injuries.

It is pointed out in the opinion that the plaintiff was found sitting in her car by a police officer who discovered that she had a bottle of alcohol in her automobile, whereupon, he arrested her and charged her with public drunkenness but no test was made and she denied that she was intoxicated; that after being booked and after making a telephone call to a friend, “defendant’s agent seized complainant and forcibly dragged her without cause back into the cellblock area, whereupon, complainant becoming frightened and crying out, defendant’s agent became unruly and forcibly threw complainant about the cell, beating her about the face, causing complainant to receive lacerations and broken bones and causing her dentures to be broken beyond repair, and causing her to sustain bleeding of the ear which continued for a period of several days.”

The Court concluded that the injuries for which recovery was sought arose out of false arrest and battery and came within the exceptions to municipal liability set forth in T.C.A. § 23-3311, hence, the judgment of the Trial Court was affirmed.

It is argued by counsel for plaintiff-ap-pellee that the case at bar is not an action for false arrest, intentional trespass, or invasion of civil rights, citing Gittlemacker v. Prasse, C.A.Pa., 428 F.2d 1, where it was said:

“A tort committed by a state official acting under color of law is not, in and of itself, sufficient to show an invasion of a person’s rights under the statute, and it follows that mere negligence alone will not support a claim.” (14 C.J.S., Sec. 93)

To like effect is Aldridge v. Mullins, 474 F.2d 1189 (Tenn.).

It is further to be observed that in Potter v. City of Chattanooga, supra, the plaintiff was intentionally and purposefully injured and abused by the police officer of Chattanooga after the arrest was made and there was apparently a clear violation of the civil rights of the one arrested and it is logical to conclude that T.C.A. § 23-3311(2) shows an obvious legislative intention to exclude only intentional tort cases.

It is to be observed that in the case at bar the Trial Judge found that the charge of negligence on the part of the arresting officer as the proximate cause of Anderson’s death was sustained and we concur in his conclusion since the evidence clearly does not preponderate against this finding of fact.

By the second assignment it is charged that the record does not show that Clay County failed to exempt itself from the provisions of the statute and it is argued that in the absence of proof by the appellee in this regard, it must be assumed that appellant, Clay County, was exempt, citing Cooper v. Rutherford County, 531 S.W.2d 783 (Tenn.1975), where the Court said:

“We assume Rutherford County to be exempt pursuant to T.C.A. § 23-3303 by the failure of appellant to raise the issue in response to the County’s plea of governmental immunity.”

In the case at bar the issue was raised and there is evidence in the record with respect to the matter of exemption in the testimony of Judge Frank Halsell, Judge of the Clay County Court, who testified that he had served in the capacity of County Court for ten years and was duly qualified and acting County Judge of Clay County at the time, and that he was Judge on December 13, 1974 at the time the accident in question aróse; that he was sure that he was in his office at the time and that he probably heard of the shooting death of Glynn Anderson on the day it happened, or, at least, on the day following the incident; that as County Judge, he was Chairman of the Quarterly County Court of Clay County and, when asked if during the months preceding January 1, 1975 there was introduced any petition or act or any motion to exempt the government of Clay County from the provisions of the chapter dealing with the Tennessee Governmental Tort Liability Act of 1973, he answered that there was not to his knowledge. He was also asked if after he learned of the shooting incident concerning Deputy Hayes, he knew that Hayes was a Deputy Sheriff in Clay County, and he answered: “Yes, sir, I did.”

Judge Halsell was asked if he read the newspaper after the shooting occurrence concerning the incident, and he answered: “Well, yes, I think I read the newspaper but I can’t tell you exactly what it said.”

He also testified that he received a letter from Attorney R. L. Johnson of Gainesboro, advising him that Lenarta Anderson was claiming damages not only against Hayes but also against Clay County as a result of this shooting. He was asked if he remembered who it was that was killed, and he answered: “Mr. Glynn Anderson,” and he stated that he had understood that Willard Hayes was the one who shot him.

It appearing without dispute that the Chairman of the County Court, in effect, stated that no action was taken by the County through its elected representatives to exempt the County from the provisions of the Act in question, certainly, the Trial Judge in the case at bar was justified in his conclusion that the County had not by resolution or otherwise exempted itself.

With respect to the statutory provisions regarding notice to the County, it appears that there was sufficient evidence before the Court to support the conclusion of the Trial Judge that the responsible County officials had been reasonably apprised of the occurrence of the incident from which the claim resulted and that by such notice, with the exercise of proper diligence, the municipality (the County) could have apprised itself of the circumstances relating to the incident.

It is to be observed that this case, having been tried by the Circuit Judge without a jury, comes to us for a hearing de novo with a presumption of correctness as to all findings of fact unless the evidence preponderates against said conclusions of fact. § 27-303, T.C.A.; Allen v. Goldstein, 40 Tenn.App. 308, 291 S.W.2d 596. And, as has been stated in several of our cases, notably Mathis v. Campbell, 22 Tenn.App. 40, 117 S.W.2d 764, the findings of the Trial Judge are entitled to great weight on appeal.

From a consideration of this record we are convinced that the Trial Judge reached the right conclusions as to the facts and law. It, therefore, results that the assignments of error are overruled and the judgment of the Trial Court is affirmed.

AFFIRMED.

TODD and DROWOTA, JJ., concur.


source: Caselaw Access Project

author: MATHERNE, Judge.

license: Public Domain

text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY and Jupiter Industries Inc., d/b/a Chattanooga Gas Company, Plaintiffs-Appellees, v. CITY OF CHATTANOOGA, Tennessee, et al., Defendants-Appellants.
    Court of Appeals of Tennessee, Eastern Section.
    July 20, 1978.
    Certiorari Denied by Supreme Court Dec. 11, 1978.

      Eugene N. Collins, City Atty., Randall L. Nelson and W. Lee Maddux, Chattanooga, for defendants-appellants.
    Spears, Moore, Rebman & Williams, Chattanooga, for plaintiffs-appellees.
   MATHERNE, Judge.

The plaintiffs, utility companies furnishing telephone service and natural gas to the citizens of Chattanooga, Tennessee, brought this lawsuit for a declaratory judgment on whether they were entitled to reimbursement for their expenses in relocating their property as a result of the widening and rebuilding of certain streets by the city. The city appeals the chancellor’s decision that the utilities were entitled to be reimbursed by the city.

Since 1975, the City of Chattanooga has been engaged in a three-year “Community Development Program.” Funds for this purpose have been obtained from the federal government, pursuant to the provisions of the Housing and Community Development Act of 1974. That act was passed by Congress for the purpose of consolidating all of the existing urban renewal grant programs into a single program. The act provides for “block grants” to local governments for use in community development. The expenditure of money received under these “block grants” is left more to the discretion of the local government than was allowed by previous laws. However, the money must be spent on projects directly related to slum, blighted or deteriorated areas.

The city has filed with the United States Department of Housing and Urban Development (HUD) three separate requests for funds covering the years 1975 — 76, 1976 — 77, 1977-78. These funds have been received and we are here dealing with work to be done under the “East Lake Neighborhood Improvement Project.” The plan filed with HUD states that the funds will be used to “(i)mprove streets, storm drainage and add curbs, gutters and sidewalks in the East Lake community.” No condemnation of property nor destruction or rebuilding of buildings are included in the East Lake project.

It was necessary that the plaintiffs relocate their lines, poles and pipes so that the East Lake Project could be carried out. The plaintiffs have done this with an agreement that they are not to be prejudiced in their claim for reimbursement of relocation expenses from the city.

Prior to 1971, the law in Tennessee was to the effect that a city, in carrying out an urban renewal, slum clearance or redevelopment project, could require utilities using the public right-of-way to relocate their property at their expense. Bristol Tennessee Housing Authority v. Bristol Gas Corp. (1966) 219 Tenn. 194, 407 S.W.2d 681; Pack v. Southern Bell Telephone & Telegraph Co. (1965) 215 Tenn. 503, 387 S.W.2d 789. In each case the Court held that absent a valid reimbursement statute, the utilities must bear the expense.

Thereafter, the legislature enacted Chapter 171, Public Acts 1971, codified as T.C.A. § 13-828 through 13-831. Legislative findings and declarations pertaining to the enactment of the statute are stated in section 13-828. Section 13-830 specifically provides for reimbursement to utilities for relocation expenses, as follows:

Reimbursement of cost of moving utility facilities. — Whenever a municipality, housing authority, or other public body of this state determines that the relocation of public service facilities of a utility within a redevelopment or urban renewal project area is necessary to the carrying out of a redevelopment or urban renewal plan pursuant to the provisions of the housing authority law, the municipality, housing authority, or other public body shall reimburse the utility for the cost of relocation of such facilities. [Acts 1971, ch. 191, § 3.]

The city argues that the foregoing statutes are not applicable because the East Lake Project is not the “carrying out of a redevelopment or urban renewal plan pursuant to the provisions of the housing authority law. . . .” This argument is primarily based upon: (1) the East Lake Project is not a redevelopment or urban renewal plan, but it is merely the widening of streets and the installation of curbs, drainage, and sidewalk facilities which may be and is being done by the city under the authority of its charter and T.C.A. §§ 6-1601 through 6-1632, the Municipal Recovery and Post War Aid Act of 1945, and (2) the East Lake Project is not being carried out pursuant to the housing authority law because the project was not assigned to the Chattanooga Housing Authority, but it was assigned to and is being carried out by the city’s street department.

The record establishes that the city had the choice of assigning the various projects to the housing authority or carrying out the projects itself. The city admits that had it assigned the East Lake Project to the housing authority, Section 13-830 would have been applicable.

The city relies upon the rule that if there are two ways of attaining an authorized municipal end and both ways are proper, the governing body has a choice as to which of the two means it will select. City of Rockwood v. Rodgers (1926) 154 Tenn. 638, 290 S.W. 381; Knoxville Ice & Cold Storage Company v. City of Knoxville (1925) 153 Tenn. 536, 284 S.W. 866; Frazier v. City of Chattanooga (1928) 156 Tenn. 346, 1 S.W.2d 786; McQuillen’s, The Law of Municipal Corporations, § 10.28 (3rd Ed. 1966); 56 Am.Jur.2d, Municipal Corporation, § 152.

The foregoing rule is sound law but we must here consider the legislative findings and declarations made in T.C.A. § 13— 828 and determine the applicability of T.C.A. § 13-830 in the light of those statements and the facts of the present lawsuit.

The record establishes that the East Lake project is by far a more extensive undertaking than normal city activity in this respect. The director of community development for the city testified that the project is not merely a street job, but is a part of an overall job to upgrade the neighborhood; he stated that “East Lake is an area that is blighted and deteriorated,” and that the purpose of the project was “to reverse the deteriorating trend and to upgrade the neighborhood.” The city engineer stated that the project is not a maintenance job but it is a “major construction project out there to reverse the deteriorating trend that is taking place and to upgrade the whole neighborhood.” The mayor of the city said that the East Lake is an area “that has become blighted, it’s deteriorating or it’s deteriorated, it needs to be improved, rehabilitated, redeveloped, that’s what the application [to HUD] said, and it was on that basis that HUD granted the money.” He further testified that “insofar as the streets, curbs and sidewalks are concerned, the East Lake Neighborhood Improvement Project is a redevelopment type project.”

Giving to T.C.A. § 13-830 the liberal interpretation required by the terms of section 13-828, we hold that the East Lake project was a redevelopment project as contemplated by T.C.A. § 13-830. We also hold that T.C.A. § 13-830 is not limited to those redevelopment projects which are assigned to and carried out by a housing authority. The East Lake project, being a redevelopment project of a blighted and deteriorated area, is being carried out by the city pursuant to the Housing Authorities Law, T.C.A. §§ 13-801 to 13-833, as contemplated by T.C.A. § 13-830. Money was obtained from the federal government for this purpose and under these conditions. The city could have carried out the improvements by means other than under federal block grants. The city, however, chose to operate under those laws, and it will not be permitted to circumvent the expressed public policy announced by T.C.A. §§ 13-828-830 by claiming it is carrying out the project under authority other than pursuant to the housing authorities law.

The city argues that the plaintiffs are excepted from T.C.A. § 13-830 by virtue of T.C.A. § 13-831 which provides, as follows:

Sections 13-828 — 13-831 shall not apply to any taking or damaging of property for which the utility is entitled compensation pursuant to the constitution of Tennessee or the United States or pursuant to any binding agreement inuring to the utility’s benefit. (Emphasis added)

It is claimed that the plaintiffs by their franchises from the city agreed to pay all relocation expenses. The city argues that under the emphasized portion of the statute these franchises are binding contracts whereby the benefits of furnishing their respective services to the citizens of the city inured to the benefit of the utilities. This argument is foreclosed by the recent decision of the Middle Section of this Court in Metropolitan Dev., Etc. v. South Cent. Bell (Tenn.Ct.App.1978) 562 S.W.2d 438.

All assignments of error are overruled and the decree of the chancellor is affirmed. The cost in this Court is adjudged against the City of Chattanooga for which execution may issue, if necessary.

PARROTT and GODDARD, JJ., concur.


author: LEWIS, Judge.

text:
    Jessie W. HARGIS, Plaintiff-Appellant, v. B. H. COLLIER, Oscar H. Collier and Braxton Collier, Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    Dec. 1, 1978.
    Certiorari Denied by Supreme Court April 2, 1979.

      Claude Callicott, Nashville, for plaintiff-appellant.
    Robert L. Johnson, Gainsboro, for defendants-appellees.
   OPINION

LEWIS, Judge.

Plaintiff, Mrs. Jessie W. Hargis, and defendants, B. H. Collier, Oscar Collier, and Braxton Collier, are adjacent landowners. A county road runs west along the southern boundary of defendants’ property. It then turns north and runs most of the length between plaintiff’s and defendants’ land before turning northwest and then southwest to where it exits plaintiff’s property. Many years ago the county connected the southernmost tips of this loop road and the loop fell into relatively infrequent use.

Plaintiff’s predecessor in title eventually closed off the loop road with fencing. During 1954, plaintiff’s husband, Jim Frank Hargis, now deceased, installed a gate in place of the fence at the southwest corner of defendants’ property.

At that time Defendant B. H. Collier was told by Mr. Hargis that the gate was not being put up to keep defendants out, “just open it and go through it when you are ready.”

After the gate was installed, defendants continued to use the road on occasion to repair fencing, for ingress and egress to certain portions of their property, and for other purposes associated with business aspects of the land.

The loop road remained in that status until shortly after the parties sold the northernmost portions of their properties for use in the “Cordell Hull” project. Horseback riders from that recreation area began using the loop road as an access to the “new” county road. To prevent that use, plaintiff locked the gate. It was at that time, September 1975, that defendants asserted their right to the use of the road.

It was plaintiff’s contention, at trial, that she had acquired the public road by adverse possession; that defendants’ property did not, in fact, abut the road; and that defendants had abandoned any right to the use of the road.

From the dismissal of her complaint by the Chancellor, the plaintiff has appealed.

Plaintiff first contends “the Chancellor erred in permitting counsel for the defendants to make findings of facts and conclusions of law and basic fundamental decisions beyond those made by the Court and announced by the Court at the end of the trial, and in signing and having entered the Judgment Order which was prepared by counsel for the defendants containing such additional findings, conclusions and decisions. If additional findings, conclusions and decisions were needed, they should have been made by the Court and he should have ordered accordingly. If they were not needed, the Court should have signed the Order prepared by counsel for the plaintiff or should have prepared and signed an Order of substantially the same import.”

Plaintiff says the Court’s action was error because the finding of facts and the making of conclusions of law and basic decisions are judicial functions and cannot properly be performed by counsel for either of the parties.

With this statement, we are in agreement. However, that is not the situation in the instant case.

The Chancellor, at the conclusion of all the evidence and argument of counsel, made certain findings of fact and dismissed plaintiff’s complaint.

Based upon the finding of facts and the dismissal, defendants’ counsel, on December 2, 1977, mailed to plaintiff’s counsel a copy of an order which he had prepared. The order was not satisfactory to plaintiff’s counsel, who then prepared an order and forwarded it to defendants’ counsel. Defendants’ counsel was not satisfied with the order as prepared by plaintiff’s counsel and called, advising him of that fact. On December 15, 1977, defendants’ counsel informed plaintiff’s counsel that he was forwarding the original order he had drawn to the Chancellor. On that same day, plaintiff’s counsel mailed to the Chancellor the original order he had prepared. The Chancellor received both orders and signed the order prepared by defendants’ counsel.

Both counsel submitted their versions to the Chancellor and each refused to concur in the other. The Chancellor made a conscious choice between the alternatives in selecting counsel for defendants’ version as accurately reflecting the facts and findings.

If there was error in this instance, it was harmless error since there is ample evidence in the record to sustain the dismissal of the plaintiff’s complaint. T.C.A. Sec. 27—116 and 117. Wimberley v. Wimberley, 50 Tenn.App. 242, 360 S.W.2d 779 (1960).

Plaintiff next contends that the Chancellor erred in admitting the following into evidence because Mr. B. H. Collier, defendant, was testifying as to a statement allegedly made by Mr. Jim Frank Hargis when Mr. Hargis erected the gate:

“Q. Now, what conversation did you and Jim Frank have, if you had any?
A. Well, he just said, T am not putting this gate up to cut you out at all, just open it and go through it when you get ready’. Because he had a lot fence in and everything to keep the cattle in.”

The form of the objection by Mr. Fitzpatrick, plaintiff’s counsel, is as follows:

MR. FITZPATRICK: Well, I except to what Jim Frank Hargis might have said. I except to that because he has no right to bind this woman. He is dead.
THE COURT: Well, he is the former owner. I believe I will let him testify.
MR. FITZPATRICK: He was the former owner, tenants by the entirety and he cannot do anything to jeopardize her interest.
THE COURT: Overrule the objection.

It is plaintiff’s contention that the admission of Jim Frank Hargis’s statement violated the hearsay rule.

As is said in 4 C.J.S. Appeal & Error §248:

“An objection made in the trial court will not be treated in the appellate court as raising any question for review which is not within the scope of the objection as made, both as to the matter objected to and as to the grounds of the objection, so that the question may be fairly held to have been brought to the attention of the trial court”.

This Court has stated:

[This assignment of error] is not well taken because the record shows that defendant’s objection, at the time the evidence was introduced, was not sufficient, in that, it did not specify the grounds of the objection. In order to be available in the appellate courts, an objection to evidence in the court below must specify the grounds of the objection. The reason for this rule is that the opposition party may be given the opportunity to act advisedly, and not to be entrapped into error after it is too late to remedy the matter by introducing new evidence, which may be done if specific objection is made. War Finance Corporation v. Ready, 2 Tenn.App. 61, 69 (1925).

In any event, the Chancellor was correct in admitting the testimony.

As was stated in Tom Love Grocery Co. v. Maryland Casualty Co., 166 Tenn. 275, 61 S.W.2d 672 (1933):

No rule is more familiar than that which requires the exclusion of unsworn statements or hearsay offered as evidence. Such statements are excluded, because they have not borne the test of cross-examination and are given without the sanction of an oath. There is no opportunity of inquiry into the character of declarant and his motives for making the statement. Those who repeat such declarations to the court stand upon the simple assertion that the statements were made, and are not obliged to enter into particulars or explain ambiguities in the declarant’s statement. If called upon to do so, they could satisfy the inquiry by repeating what they heard.
“There are, however, exceptions to the hearsay rule which authorizes the reception of admissions and declarations against interest. Declarations, to be distinguished from admissions, as to facts relevant to the matter of inquiry, are admissible in evidence when it appears that the declarant is dead, that the declaration was against his pecuniary or proprietary interest, and that he had no probable motive to falsify the fact declared.” Id. at 277, 61 S.W.2d at 673.

Plaintiff admits in her pleadings that she and her husband, Jim Frank Hargis, were tenants by the entireties until the time of his death. The nature of the case makes it clear that the statement made by Jim Frank Hargis at the time the gate was installed was against his proprietary interest in asserting ownership of the county road.

Plaintiff’s reliance on Moore v. Cole, 200 Tenn. 43, 289 S.W.2d 695 (1956), and Sloan v. Jones, 192 Tenn. 400, 241 S.W.2d 506 (1951), is ill-founded. Moore involved a transfer, by a co-tenant, of property through a “strawman” to himself and his wife in an attempt to start the seven-year statute running as against his co-tenant. Sloan involved the devolution of personal property upon the death of a co-tenant in a tenancy by the entirety. Neither case deals with the issue at hand.

The statement of Jim Frank Hargis was admissible as a declaration against interest. This assignment of error is without merit.

Plaintiff next contends that she was an innocent purchaser for value without notice of the easement and, as such, did not take the estate burdened by the easement.

It is a well established principle of law that:

“A person who purchases land with knowledge or with actual, constructive, or implied notice that it is burdened with an easement in favor of other property ordinarily takes the estate subject to the easement.” 25 Am.Jur.2d Easements and Licenses Sec. 97.

The record contains much testimony concerning plaintiff’s inspection of this property, both prior and subsequent to the purchase. It also contains contrary evidence from the defendants and neighbors as to the existence of the road and its use, although infrequently, by them over the course of many years.

The trial judge’s findings are entitled to great weight where he saw and heard the witnesses and observed their manner and demeanor on the stand. The appellant, on appeal, has the burden of showing that the evidence preponderates against the findings of the Chancellor. T.C.A. Sec. 27—303 (Supp.1977).

The Court is of the opinion the plaintiff has failed to rebut the presumption of correctness on this issue. This assignment of error is without merit.

Plaintiff next contends that the Chancellor erred in failing to find that the road had been abandoned by the public and the defendants’ right to use it was forfeited under any claim they might make as an abutting landowner or otherwise. Plaintiff cites Shelby v. State, 29 Tenn. (10 Humph.) 165 (1849), and City of Knoxville v. Sprankle, 9 Tenn.App. 218 (1928), for the proposition that, “non-user, plus intent, constitutes an abandonment. While the establishment of a new way does not necessarily work an abandonment of a pre-existing way between the same points, where the new way is substituted for the old and is accepted by the public and used by the public instead of the old road, for even a few years, and where the change was made by public authority, there is a combination of both nonuser and intent to abandon and the road ceases to be a public road”.

City of Knoxville v. Sprankle is inappo-site to the facts at hand. In City of Knoxville v. Sprankle, the road was private rather than a public thoroughfare:

We do not think under the facts of this case that any prescriptive right of way has been acquired either public or private in that portion of the road covered by the defendants’ land. The road was laid out in 1903 and an effort made to have it accepted and the obligation of its upkeep taken over as a county charge, and . it does not appear that he [sic] county court ever accepted such obligation or recognized the public need of such a road. 9 Tenn.App. at 221.

In the instant case, neither party contests the status of this road as a public thoroughfare at the time of its creation.

Shelby v. State is also inapplicable to the facts at hand. As to non-user, the Court stated:

It might very well be admitted that the right of way or “easement” acquired by the public, in the present case, has not been lost by non-user; but on the contrary, that it might be resumed if deemed proper by the public. Though on this point we, at present, mean to express no opinion. 29 Tenn. at 166.

However, Shelby v. State continues on to create a presumption of abandonment if:

[T]he public cease to use a road, and adopt another, and thereupon the owner of the soil over which the old road passed, resume the use and occupancy thereof, and the public acquiesce therein for the period of three years, . . . [The presumption arises] in absence of all evidence indicating a contrary intention on the part of the public, [emphasis added] Id.

As to what constitutes “all evidence indicating a contrary intention”, the Court continues:

The use of the old road by a few individuals in the immediate vicinity thereof, for the purposes of mere private convenience, furnishes no evidence sufficient to repel the presumption of abandonment by the public. Id. at 166-67.

This latter language would appear to substantiate plaintiff’s contention of abandonment. However, the opinion affords no insight as to what constitutes the “private convenience” of the “few individuals in the immediate vicinity”. In the instant case, the use of the road by the defendants to gain ingress and egress to a portion of their property, to repair and maintain their property, and to transact business associated .with their property cannot be deemed a mere “private convenience”.

It should also be recognized that Shelby v. State involved a criminal prosecution under a statute that is not discernible from the opinion.

Plaintiff also contends the finding of the Chancellor that defendants' property abuts the roadway is error. In light of the Chancellor’s correct determination that the road was not abandoned, this issue is moot.

Plaintiff would also have the Court read the judgment below as improperly stating that “[tjhere could be no effective abandonment of a county road and that the public could lose its right to continue to use the road only where the road had been closed by the County Court in accordance with Sec. 54-905 to 54-915 of Tennessee Code Annotated”.

Such a reading of the judgment would be erroneous.

The judgment states:

It satisfactorily appears to the Court that the roadway . . . has not been closed by any proceedings before the County Court of Jackson County.

It is evident that the Chancellor was merely recognizing that the road had not been closed by official government action in accordance with Tennessee Code Annotated.

Plaintiff’s contention that the Chancellor erred in refusing to hold that defendants abandoned their right to use the road is inconsistent with the evidence adduced at trial. The record contains ample evidence as to the use of the road by defendants albeit on an irregular basis.

Plaintiff cites Rogers v. City of Knoxville, 40 Tenn.App. 170, 289 S.W.2d 868 (1955), to support her contention of defendants’ abandonment. Rogers v. City of Knoxville is distinguishable from the facts at hand. There the public service corporation which constructed the transmission lines across the defendant’s property had appropriated the land without condemnation proceedings and, as such, had only a possessory right and not a transmissible one. Thus, when the original appropriator’s successor in title dismantled the line and allowed the easement to remain unused for more than eight years, the easement was adjudged abandoned.

In the instant case, such lengthy non-user is not evidence from the record. In addition, the defendants did not engage in any of the types of action evident in Rogers v. City of Knoxville which would indicate an intent to abandon. This record is devoid of any evidence of intent to abandon on the defendants’ part. To the contrary, there is ample evidence of defendants’ actions taken to protect their use of this roadway.

The Chancellor properly found that defendants had not abandoned their right to use the road.

Finally, there remains to be settled the plaintiff's claim of adverse possession of the roadway.

3 Am.Jur.2d Adverse Possession Sec. 24 (1962) states:

Casual fencing: inclosure with other land. By casual fencing is meant the making of an inclosure by joining onto existing fences erected for purposes other and different from, and wholly foreign to, the purposes for which the inclosure thus made is to be used.

The fencing on the southwest corner of defendants’ property and running north along the road was used to separate defendants’ property from the roadway itself. Plaintiff’s predecessor in title extended his fencing across the road and attached it to defendants’ fence. If plaintiff’s predecessor in title had had a fence running north on the eastern boundary of his property, fencing off the road would have been unnecessary to prevent his livestock from escaping. If, in fact, there was no fence on the eastern boundary or if such fence was in disrepair, livestock could not be contained on the property proper.

Casual fencing is a weakening element in a limitation claimant’s case, and where the fencing is not only casual but practically the whole of it constitutes a purpresture in the public way, and incloses a temporarily unused but substantial portion of the public streets, the claimant’s asserted claim of right remains far from proved when nothing more than grazing within such fences is shown. Id.

Rather than establishing an adverse possession claim, this evidence is truly a “weakening element”.

Further, when plaintiff’s husband installed the gate, his statement to Defendant B. H. Collier refuted any adversé claim to the roadway. In addition, when the gate was locked in September 1975 this suit, in immediate reaction thereto, prevented the establishment of an adverse possession claim under any of the statutes cited by plaintiff, the statutory time requisite being tolled.

Plaintiff asserts that the trial Court failed to dispose of all the questions during the trial. Specifically, the plaintiff requested the Court to determine the distance up the roadway the defendants could travel. The northernmost portions of the road is now under water in the Cordell Hull Lake. However, as this road was, and still is, a county road open to the public, it was unnecessary for the Chancellor to make any determination on this matter.

It results that all assignments of error are overruled and the judgment of the Chancellor is affirmed. The costs are adjudged against plaintiff.

SHRIVER, P. J., and DROWOTA, J., concur.


author: DOUGLAS, Judge.

text:
    Raymond Henry LACHAPELLE, Appellant, v. The STATE OF Texas, Appellee.
    No. 55696.
    Court of Criminal Appeals of Texas, En Banc.
    April 4, 1979.
    Robert F. Watson, Mineral Wells, for appellant.
    Robert J. Glasgow, Dist. Atty. and William L. Martin, Jr., Asst. Dist. Atty., Ste-phenville, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for burglary. Punishment was assessed by the jury at ten (10) years confinement in the Department of Corrections and a fine of $2,000. The jury further recommended that the sentence be probated as to the confinement in the Department of Corrections, but did not recommend that the fine be probated.

The sufficiency of the evidence is not challenged. The appellant entered a plea of guilty before the jury and a confession was introduced without objection.

On March 10, 1976, a grocery store was burglarized, several items were taken, including meat, beer, cigarettes and various canned goods. These items were removed from the store by a shopping cart.

Appellant complains that an extraneous offense was introduced by a police officer in response to a question by the State. Specifically, he is complaining of the following statement:

“Well, it was a rather drawn-out procedure. To reiterate, we were notified by a citizen that had heard some unusual noises on two occasions, and looking out his window he observed a person pushing a grocery cart up Northwest 3rd Avenue. He advised that the persons looked like they possibly were intoxicated by the way they were weaving and pushing the baskets and they were extremely loud. I don’t know quite exactly how to explain this without going into the other case because we have got a—
“THE COURT: Well, just a minute. Ladies and gentlemen, would you step out just a moment, please?”

Thereafter, the appellant made a motion for mistrial. The motion was overruled but the trial court properly instructed the jury to disregard the reference to any other incident made by the officer.

The trial court’s prompt action in stopping the witness and removing the jury and his further instruction to the jury were more than sufficient to remove any harm that may have occurred by the statement of the witness.

Recently, in Evans v. State, 542 S.W.2d 139 (Tex.Cr.App.1976), this Court has held:

“That any error in the admission of improper testimony is cured by the trial court’s withdrawal of the evidence and its instruction to the jury to disregard ‘except in extreme cases where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds’ (cases cited). It has been held that testimony referring to or implying extraneous offenses allegedly committed by the defendant is rendered harmless by the trial court’s instruction to disregard, (cases cited).”

It is noted that the fine was not probated by the jury, but the time assessed in the Texas Department of Corrections was. This was authorized under Article 42.12, Sections 3 and 6, V.A.C.C.P. Cf. Franklin v. State, 576 S.W.2d 621 (Tex.Cr.App.1978).

The judgment is affirmed.


author: QUENTIN KEITH, Commissioner.

text:
    Jerry FERGUSON, Appellant, v. The STATE of Texas, Appellee.
    No. 56536.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 4, 1979.

      Bruce Roberson, Perryton, for appellant.
    William L. Rivers, County Atty., Perry-ton, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., PHILLIPS and TOM G. DAVIS, JJ., and KEITH, C.
   OPINION

QUENTIN KEITH, Commissioner.

Appellant was indicted for deviate sexual intercourse with a child who was under the age of seventeen years. Y.T.C.A., Penal Code, Sec. 21.10. Prior to trial, a jury determined that he was competent to stand trial. Whereupon, appellant waived a jury and was found guilty in a bench trial with his punishment being assessed at four years.

Although the appellant does not challenge the sufficiency of the evidence, his confession coming to us without challenge, we summarize the evidence only to the extent necessary to bring the grounds of error into proper focus. The victim was the eleven-year-old stepdaughter of appellant who testified that appellant forced her to take his erect penis in her mouth and give him a “blow job”. Appellant threatened physical harm to the child during the offense. The girl also testified that upon several other occasions the appellant made her play with his penis.

Court appointed counsel subjected the prosecutrix to a rigid cross-examination and attempted to create doubt in the mind of the trier of the fact by impeaching evidence. However, the victim remained firm in her original version of the complaint which she had given to the police officers a few days after the occurrence of the event forming the basis of the prosecution.

Appellant’s first ground of error brings forward the contention that “[t]he evidence presented established as a matter of law that the defendant was incompetent to stand trial.” Counsel points to the oral deposition of Dr. Allen Heacock which comes to us in the form of a supplemental transcript filed after oral submission of the cause.

During the course of the guilt-innocence phase of the trial, appellant’s counsel attempted to introduce the entire deposition of Dr. Heacock containing more than seventy-five pages of testimony. At such time, the trial court stated into the record:

“I’m going to receive the entire deposition in evidence. However, the question of competency has already been determined by a jury, and there has been no new evidence since that time pointed out to the Court that would again raise the question of competency, so I’m concerned at this point only with the question of sanity. I will consider the deposition in that regard, but the question of competency has already been determined.” (emphasis supplied)

We note at this point that counsel did not allude to any specific part of the deposition nor did he relate any happening in the courtroom which might have triggered a new competency inquiry. No objection was made to the limitation of the deposition to the sanity issue, as distinguished from the question of competency. Nor has appellant attempted to present for review the factual determination made at the competency hearing prior to his trial. See and compare Jackson v. State, 548 S.W.2d 685, 690 (Tex.Cr.App.1977).

Assuming, arguendo, that appellant has perfected a ground of error subject to review, we find no merit to the contention now advanced. We have considered Dr. Heacoek’s deposition, and particularly the specific pages to which our attention has been directed.

As said in Thomas v. State, 562 S.W.2d 240, 243 (Tex.Cr.App.1978):

“A trial court is only required to sua sponte hold a competency hearing when sufficient facts or circumstances are brought to the court’s attention, from any source, that create a reasonable doubt as to the competency of the appellant.”

From our review of the entire record, we do not find any facts or circumstances which would require the trial court to hold another competency hearing. Ground one is overruled. Johnson v. State, 564 S.W.2d 707, 709 (Tex.Cr.App.1978), upon rehearing.

Appellant filed a notice that he intended to rely upon the defense of insanity at the trial of the cause. V.T.C.A., C.C.P., art. 46.03, § 2(a). In his second ground of error he contends that Dr. Heac-ock’s deposition mentioned earlier “established as a matter of law that the defendant was insane at the time of the commission of the offense alleged in the indictment.”

The most that can be said for Heacock’s testimony is that he characterized appellant as intellectually immature. Other testimony presented by appellant from his co-workers and friends showed him to be an average normal oil field worker and none of his friends mentioned his mental deficiencies, if any. Indeed, even Dr. Heacock refused to express an opinion as to whether appellant “was either capable or incapable of conforming his conduct to the requirements of the law.”

In answer to a hypothetical question, Heacock said that appellant knew what he was doing, that it was wrong, and that he had the ability to conform to socially acceptable standards and expectations.

In our role as an appellant court, we must view the evidence in the light most favorable to the jury verdict. Jordan v. State, 506 S.W.2d 217, 221 (Tex.Cr.App.1974). We have reviewed the evidence and, contrary to the contention now advanced, we do not find that appellant has shown himself to be insane at the time of the trial. Ground two is overruled.

The third ground of error asserts that the State wholly failed “to show an intent on the part of the defendant to arouse and gratify the sexual desire of the defendant as alleged in the indictment.” Again, we disagree and overrule such ground of error.

In O’Neal v. State, 421 S.W.2d 391, 395 (Tex.Cr.App.1967), we held that evidence of a common pattern of similar acts was admissible as tending to prove the intent on the part of appellant to violate the statute under which he was indicted. See also McDonald v. State, 513 S.W.2d 44, 51 (Tex.Cr.App.1974).

From our review of the record, we are convinced that the State discharged its burden of proving the requisite intend on the part of appellant when he engaged in the unnatural acts with his stepdaughter. Torme v. State, 525 S.W.2d 9, 10 (Tex.Cr.App.1975).

Appellant presents grounds four and five jointly in his argument and we will so dispose of the contentions. In the fourth ground he claims the indictment is fundamentally defective and does not allege an offense while the fifth ground charges that there is a variance between the allegata and the probata.

In substance, the indictment charged that the appellant “did then and there intentionally and knowingly with intent to arouse and gratify the sexual desire of the said Defendant, engage in deviate sexual intercourse with [L. D. M.], a female child not his spouse younger than 17 years of age, by engaging in oral deviate sexual intercourse.” There was no motion to quash or set aside the indictment, so appellant must rely upon the indictment being fundamentally defective. See American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974); Rogers v. State, 550 S.W.2d 78, 82 (Tex.Cr.App.1977).

The proof, as related earlier, showed that appellant made the' child place her mouth over his erect penis and to move her head up and down while in such position.

Sexual abuse of a child is defined in V.T.C.A., Penal Code, Sec. 21.10(a):

“A person commits an offense if, with intent to arouse or gratify the sexual desire of any person, he engages in deviate sexual intercourse with a child, not his spouse, whether the child is of the same or opposite sex, and the child is younger than 17 years.”

In V.T.C.A., Penal Code, Sec. 21.01(1), this definition is pertinent:

“ ‘Deviate sexual intercourse’ means any contact between any part of the genitals of one person and the mouth or anus of another person.”

At the outset, it must be admitted that the form of the indictment differs materially from the simple and effective form found in 7 Texas Practice, Willson’s Criminal Forms Ann., § 6.31 (W. Morrison & T. Blackwell 8th ed. 1977), but this fact, standing alone, does not conclude our consideration of the question presented. The instant indictment leaves much to be desired, especially when contrasted with the exemplary language found in Morrison & Blackwell, supra, but it is not fundamentally defective.

Appellant argues that the State has broadened the statutory definition of the offense “to include any touching of the ‘surface of the mouth’ and the mouth of another person, a definition not contemplated by the drafters of Penal Code Section 21.10.” Further, it is contended that under the indictment proof of “nothing more than a lascivious French kiss” would suffice to support a conviction. We find the argument to be specious and lacking in merit.

Under the statute (Penal Code § 21.01), the deviate sexual intercourse may be had in contact of the genitals with either the mouth or the anus. The State, in the case at bar, used the word “oral” to confine its charge to contact with the mouth of the child. The use of the word “oral” in connection with a charge of sodomy is not uncommon, even by this Court. For instance, in Hohn v. State, 538 S.W.2d 619 (Tex.Cr.App.1976), the appellant was indicted for the offense of sexual abuse of a child; yet, throughout the opinion, this Court—and properly so—spoke of “oral sodomy” as being the gravamen of the charge.

In Pruett v. State, 463 S.W.2d 191 (Tex.Cr.App.1970), this Court made an in depth survey of the validity of Art. 524 of the prior penal code, including the history of the earlier statutes, and synthesized the holdings of the Court on the sodomy statute between 1860 and 1943, concluding that pri- or to the 1943 statutory amendment “copulation in the mouth or using the mouth on the person of another was not sodomy.” (463 S.W.2d at 196)

The Court then turned to a consideration of the holding in Furstonburg v. State, 148 Tex.Cr.R. 638, 190 S.W.2d 362, 363 (1945), rejecting a contention such as is advanced here. The Court pointedly noted that appellant was charged “with an unnatural connection with a young girl through the utilization of her mouth” and was, thus, guilty of violation of the amended statute.

There were two means by which the offense charged could have been committed,depending upon the body cavity invaded— per os or per anus. And, it has long been the established rule in this state that “the indictment should set out the particular offense charged with such certainty as that a presumptively innocent man seeking to know what he must meet may ascertain fully therefrom the matters charged against him.” Hardin v. State, 85 Tex.Cr.R. 220, 211 S.W. 233, 236, 4 A.L.R. 1308 (1919). See also Hill v. State, 544 S.W.2d 411, 413 (Tex.Cr.App.1976); Seiffert v. State, 501 S.W.2d 124, 126 (Tex.Cr.App.1973).

Under the statute, V.T.C.A., C.C.P., art. 21.11, appellant was advised of the offense with which he was charged; namely, (a) deviate sexual intercourse, a term defined in V.T.C.A., Penal Code, Sec. 21.-01(1); (b) with a child of the opposite sex under the age of 17 years and with intent to arouse and gratify his sexual desire, as set out in V.T.C.A., Penal Code, Sec. 21.10(a); and (c) that the body cavity involved was not the anus but was “oral”, a word commonly associated with the mouth and never with the anus.

There being no challenge to the sufficiency of the indictment in the trial court, we are of the opinion that there is no reversible error now presented on appeal and the challenge is overruled. American Plant Food Corporation v. State, supra (508 S.W.2d 598).

We find no merit to the sixth ground of error contending that the State failed to prove that the child was not the spouse of the appellant. The State established that at the time of the commission of the offense appellant was married to the child’s mother and that the only relationship between appellant and the prosecutrix was that the child was his stepdaughter. The sixth ground of error is overruled.

Finding no reversible error, the judgment of the trial court is affirmed.

      . We do not approve of the method of bringing such testimony to our attention in the brief. Counsel says: “Appellant would urge that the testimony which most nearly incorporates the substance of Dr. Heacock’s testimony appears at p. 18 1. 23 through p. 21 1. 22 and p. 46 1. 6 through p. 44 1. 12 of the deposition included in the transcript on file herein. Other portions of the deposition, although relevant to the incompetency issue, are less defined and are of little help in determining the ultimate issue.”
      In Phillips v. State, 511 S.W.2d 22, 27 (Tex.Cr.App.1974), we had occasion to criticize such form of fact references in appellate briefs. Counsel may help a busy court by quoting short excerpts of the testimony upon which he relies.

      . Morrison & Blackwell’s form § 6.31, adapted to the facts of this case, reads: “A.B. did then and there with intent to arouse and gratify the sexual desire of the said A.B. engage in deviate sexual intercourse by then and there placing his genitals in contact with the mouth of C.D., a female child not his spouse younger than 17 years of age."

      . Furstonburg, supra (at 363): “The contention is herein made that ‘carnal copulation’ means the touching, or joining of bodies, and could be met by a mere shaking of hands between two persons, or a kissing thereof.”

      . Art. 21.11: “An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment . . .


text:
    Jack Adams McDOLE, Appellant, v. The STATE of Texas, Appellee.
    No. 56734.
    Court of Criminal Appeals of Texas, Panel No. 2.
    April 4, 1979.

      Dick DeGuerin, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, and William E. Taylor, III, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

DOUGLAS, Judge.

Jack Adams McDole appeals his conviction for possession of cocaine. Punishment was assessed by the court at twelve years. McDole’s sole contention on this appeal is that the cocaine was seized as a result of an illegal warrantless search. We agree and reverse.

The evidence concerning the legality of the search was developed at both a pretrial suppression hearing and in greater detail at the trial. We will consider the evidence of both in reviewing the validity of the search. See Hicks v. State, 545 S.W.2d 805 (Tex.Cr.App.1977).

The facts were established primarily through the testimony of Officer J. J. Reyes. He testified that, during the early evening of September 8, 1975, he received a telephone call from a confidential informant who had given his reliable information on three previous occasions. The informant stated that a possible “deal” was going to happen later that night. At 10:15, the informant called and stated that he had just left the apartment of Gary Mafrige and that there was a quantity of cocaine in the apartment. Reyes began to prepare the search warrant application and sent two officers out to the scene to set up a surveillance. At 10:30 p. m., Reyes was “partially half-way through” the warrant when he called Justice of the Peace Larry Wayne to determine his availability to sign the warrant and to ask if he had sufficient probable cause. At 10:31 p. m., while still on the telephone with Wayne, the informant called again to say that the people in the apartment would soon be leaving. Reyes informed Wayne of this and Wayne told Reyes to go ahead and search the apartment. Reyes abandoned his efforts to obtain the search warrant. Some time between 10:55 p. m. and 11:00 p. m. he and several other officers arrived at the Maf-rige apartment and met with the officers who set up the original surveillance. Twenty minutes later they entered the apartment, conducted a warrantless search and arrested all of the occupants. Reyes also testified that it would take between sixty and ninety minutes to obtain a warrant.

In most cases our State and Federal Constitutions prohibit a search of a private residence without a search warrant. Article 1, Section 9, Texas Constitution; Amendment Four, United States Constitution.

In the instant case, Reyes received information at 10:15. It would have taken between sixty and ninety minutes to obtain the warrant. It could thus be available between 11:15 and 11:45. Officers, who could stop anyone leaving the residence, had it under surveillance. At 10:30 Reyes was told the residents would be leaving shortly. He abandoned his efforts to obtain the warrant. The raid was conducted between 11:15 and 11:20.

A warrant could have been obtained within a matter of minutes of the time the warrantless arrest was made. This case is unlike the situation presented in Thompson v. State, 447 S.W.2d 175 (Tex.Cr.App.1969). In Thompson, an officer approached the house with an invalid search warrant. He heard someone ask, “Have you finished shooting yet?” and then looked in the window and observed an individual preparing to make an injection into his arm. We held that since the officers had sufficient probable cause to search based on their observations the search would not be unlawful because it was conducted under color of the invalid warrant. The instant case does not present a situation where a valid exception to the warrant requirement developed immediately prior to the search.

There is an indication that the officers sought to justify this search on the oral approval of the justice of the peace. If this were allowed, it would constitute an “oral search warrant.” Article 18.01, V.A.C.C.P., provides, “A ‘search warrant’ is a written order . . . .” A written warrant allows the officer to show his authority to the “person who has charge of” the place to be searched as required by Article 18.16, V.A. C.C.P. It also facilitates subsequent judicial review of the validity of the warrant. Thus, a search warrant must be in writing because both the statute and sound policy requirements demand that it be so.

For the above reasons, the evidence introduced was wrongfully seized, and its introduction into evidence was error.

The judgment is reversed and the cause is remanded.


author: PHILLIPS, Judge.

text:
    David RANGEL, Appellant, v. The STATE of Texas, Appellee.
    No. 60209.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 4, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a bond forfeiture proceeding. The cause of the principal was called for trial on December 13, 1976, but she did not appear. After being called at the courthouse door and being given a reasonable amount of time to appear, a judgment nisi was entered. A show cause order issued to appellant on January 5, 1977, and was served on January 7, 1977. Judgment was entered in favor of the State on October 9, 1978. See Article 22.15, V.A.C.C.P. The record was filed in this Court on December 5, 1978. No brief has been filed by appellant. See Rule 414, Texas Rules of Civil Procedure, and Article 44.44, V.A.C.

C.P. Accordingly, the appeal is dismissed. See Rule 415, Texas Rules of Civil Proceure, and Paniagua v. State, Tex.Cr.App., 491 S.W.2d 128.

It is so ordered.

      . The show cause order required a written answer to be filed within 20 days of service. No answer was filed until September 29, 1978, and after the State’s Motion for Summary Judgment was filed on August 29, 1978. See Article 22.11, V.A.C.C.P. The answer does not incorporate any cause set forth in Article 22.13, V.A.C.C.P.


author: TOM G. DAVIS, Judge.

text:
    Kenneth YOUNG, Appellant, v. The STATE of Texas, Appellee.
    No. 60374.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 4, 1979.
    Thomas N. Bluntzer, court appointed on appeal, New Braunfels, for appellant.
    Robert Huttash, State’s Atty., Austin, for cíj. j. the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for theft of property of over the value of $200.00 and less than $10,000.00. Trial was before the court upon a plea of guilty and punishment was assessed at two years.

In a single ground of error, appellant complains of the order of cumulation whereby the court cumulated the punishment assessed with the punishment assessed in a prior conviction in Harris County.

The order of cumulation reads as follows: “Sentence to run from and after Defendant completes his sentence in Cause No. 273166, Harris County, Texas being served by defendant.”

In Ward v. State, 523 S.W.2d 681, it was noted that this Court had recommended that cumulation orders contain:

“(1) the trial number of the prior conviction;
“(2) the correct name of the court where the prior conviction was taken;
“(3) the date of the prior conviction; “(4) the term of years of the prior conviction;
“(5) the nature of the prior conviction.”

It was noted in Ward that orders containing less than the recommended elements of a cumulation order have been upheld. Phillips v. State, Tex.Cr.App., 488 S.W.2d 97; Ex parte Collier, 156 Tex.Cr.R. 377, 243 S.W.2d 177.

In Ex parte Davis, Tex.Cr.App., 506 S.W.2d 882, a cumulation order read:

“ . . . this sentence shall commence and begin to run when sentences in cause numbers as follows have been completed. Cause # 12,772 Kaufman County, Texas, Dallas County, Texas Cause # C-69-6998-J, C-69-6551 — JK, C-70-1949-K and C-70-949-K.”

This Court held the foregoing cumulation order in Ex parte Davis, supra, to be void. As in the instant case, the cumulation order in Davis recited, at most, only one detail— the numbers of the prior convictions. The names of the convicting courts, the offenses upon which convictions were had, the dates of the sentences, and the terms of years assessed are not set forth in either the Davis case or the instant case. In Ex parte Lewis, Tex.Cr.App., 414 S.W.2d 682, a purported cumulation order like the ones in Ex parte Davis and the instant case was held to be insufficient. In Lewis, this Court held that when a cumulation order in which reference was made only to the previous case number was not sufficient where the prior conviction was in a different court. We conclude that the cumulation order in the instant case is void.

While the cumulation order is of no force and effect, it does not in any way affect the validity of the conviction in the instant case where appellant entered a plea of guilty and made a judicial confession. The judgment therein is affirmed.

      . A different result may have been indicated in the present case if the prior conviction had been shown to have been in the same court where the instant case was tried. See Hamm v. State, Tex.Cr.App., 513 S.W.2d 85.


text:
    Ex parte Peter Brett CLARK.
    No. 60646.
    Court of Criminal Appeals of Texas, Panel No. 2.
    April 4, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

DOUGLAS, Judge.

This is an application for writ of habeas corpus filed pursuant to Article 11.07, V.A. C.C.P.

On June 28, 1976, petitioner, a juvenile, entered pleas of guilty to five indictments charging him with delivery of heroin. Petitioner subsequently filed an application for writ of habeas corpus contending that the convicting court was without jurisdiction to hear the case because he was not accorded his right to an examining trial. The judge of the convicting court has entered an order finding that the relevant facts alleged by petitioner are true and concluding that Clark is entitled to the relief he seeks.

This Court has held that an examining trial is a mandatory step in securing conviction of a juvenile who has been certified as an adult. Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App.1978). This step may be waived only if done so according to the provisions of V.T.C.A., Family Code, Section 51.09(a). Criss v. State, 563 S.W.2d 942 (Tex.Cr.App.1978).

In the instant case, petitioner was not accorded his right to an examining trial and did not waive the right pursuant to Section 51.09(a). He is entitled to the relief he seeks.

Petitioner’s convictions for delivery of heroin in Cause Nos. A-8634, A-8636, B-8633, B-8635 and B — 8637 are set aside.

      . The writer remains convinced that Menefee was incorrectly decided and should be overruled. The State’s Attorney has filed a brief urging that the right to an examining trial is waived by entry of a guilty plea and that, in any event, such claims do not involve constitutional rights nor are they an essential requirement of a fair trial and therefore they should not be cognizable on habeas corpus. The writer agrees with these arguments advanced by the State. However, they have previously been rejected in several cases including White v. State, 576 S.W.2d 843 (Tex.Cr.App.1979), and Ex parte LeBlanc, 577 S.W.2d 731 (Tex.Cr.App.1979), which the State argues should be overruled.


text:
    Ex parte Travis BITTICK.
    No. 60834.
    Court of Criminal Appeals of Texas, En Banc.
    April 4, 1979.
    Richard E. Wetzel, Rosharon, for appellant.
    James H. Keeshan, Dist. Atty., and Michael A. McDougal, Asst. Dist. Atty., Con-roe, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an application for writ of habeas corpus filed pursuant to Article 11.07, V.A. C.C.P.

On September 19,1977, petitioner, a juvenile, entered a plea of guilty to an information charging burglary of a building and received a two-year sentence. Petitioner subsequently filed a writ of habeas corpus contending that the convicting court was without jurisdiction to hear the ease because petitioner was denied his right to an examining trial, that the juvenile court denied petitioner the right to counsel at the transfer hearing and that petitioner was not accorded his right to proper notice of the transfer hearing. On January 26, 1978, in our per curiam order, we remanded the case for an evidentiary hearing. The convicting court held a hearing and has entered findings of facts and conclusions of law. Essentially, the court found all the facts to be in accordance with petitioner’s allegation but concluded that petitioner’s waiver of indictment and entry of a guilty plea constituted a waiver of these complaints. The State disagrees and has filed a brief urging that relief be granted.

An examining trial is a mandatory step in securing conviction of a juvenile who has been certified as an adult. Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App.1978). This step may be waived but only if done so according to the provisions of V.T. C.A., Family Code, Section 51.09(a). Criss v. State, 563 S.W.2d 942 (Tex.Cr.App.1978).

In the instant case, petitioner was not accorded his right to an examining trial and did not waive the right pursuant to Section 51.09(a). He is entitled to the relief he seeks. Because of our disposition of this ground, we need not consider his other contentions.

Petitioner’s conviction in Cause 5697, burglary of a building, is set aside.

      . The writer is still of the opinion that the Menefee case was incorrectly decided and that it should be overruled.


text:
    Ex parte Michael Joe ELLIS.
    No. 60926.
    Court of Criminal Appeals of Texas, En Banc.
    April 4, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

This is a post-conviction application for habeas corpus filed under Article 11.07, V.A.C.C.P. • •

Appellant was indicted for the unauthorized use of a motor vehicle without any allegation of a culpable mental state. V.T. C.A., Penal Code, Section 31.07. Such an omission is fundamental and deprives the trial court of jurisdiction to enter any judgment. Ex parte Winton, Tex.Cr.App., 549 S.W.2d 751, and authorities cited therein. Cf. Allen v. State, Tex.Cr.App., 549 S.W.2d 5. The judgment in Cause No. 9321 is set aside and the indictment dismissed. A copy of this opinion will be sent to the Texas Department of Corrections.

It is so ordered.


author: CLAYTON, Justice.

text:
    Herman Devoe WRIGHT et ux., Appellants, v. Carlton E. WOLTERS et al., Appellees.
    No. 8123.
    Court of Civil Appeals of Texas, Beaumont.
    Jan. 18, 1979.
    Motion for Rehearing Overruled Feb. 15, 1979.
    R. L. Miller, Gonzales, for appellants.
    Wayne J. Prosperi, Houston, for appel-lees.
   CLAYTON, Justice.

This is a contest of the will of Quentin Bryan Schaefer, deceased, filed for probate by the appellants (proponents) Herman De-voe Wright and his wife, Leta Bates Wright. The probate of the will was contested by appellees, who were brothers, sisters, two nephews, and a niece of the testator, upon grounds of testamentary capacity and undue influence. Upon submission of special issues to the jury on these two contested grounds, the jury returned a verdict on both issues against the appellants, and the trial court entered its order denying probate of the will.

The first four points urged by appellants are that the findings of the jury as to the testator’s lack of testamentary capacity and undue influence “has no evidence to support it” and is so “greatly against the weight of the credible testimony as to be manifestly unjust.”

Schaefer, the testator, was born in 1901, attended Texas A & M University, and graduated as an engineer. Upon his graduation he went to work for a company in Dallas engaged in the manufacture of x-ray and other medical equipment. He became vice-president of the company in charge of sales and retired in 1959. He was married once. His wife died in 1962, and he never remarried. After his retirement from the Dallas company, Schaefer, together with others, formed a new company known as the X-Ray Engineering Company, and later a second company called the X-Ray Equipment Company in Fort Worth. Following his wife’s death, Schaefer spent a considerable amount of time visiting among relatives, but he remained active in the x-ray business until 1960, when he went on an advisory basis only.

In 1967, Schaefer moved onto a tract of land, part of which was owned jointly by him and his brother, and part of which was owned by Schaefer individually, and he lived on this farm until 1973. In April 1973, Schaefer, having difficulty in talking and subsequently in breathing, was taken to a hospital in Houston where he was diagnosed as having cancer of the larynx. He underwent surgery for the removal of his larynx.

Following the surgery, he was transferred to the Christian Home for the Aged. In June 1975, he was transferred back to the hospital, subsequently went into a coma, and died on July 8, 1975.

The will in question was executed by testator on the 21st day of August 1970, approximately five years before his death and two and a half years prior to his hospitalization. The will was drawn and signed in the office of E. A. Arnim, an attorney who had practiced law for nearly fifty years in Fayette County. Judge Arnim testified that testator brought in a will written entirely in the handwriting of the testator to be checked out, typed, and executed. Testator came into his attorney’s office alone. This attorney had represented the testator in many transactions prior to the drawing of the will, including the settlement of his wife’s estate, and the two had been friends for many years. The testator had executed a prior will in 1967 which was revoked by his 1970 will. Upon being questioned by the witness Arnim as to the reasons for making this new will, testator replied that his relatives would simply sell his land which he wanted preserved, that he wanted to keep his land together and eventually go to the daughter of appellants. He was very fond of the daughter. The 1970 will was typed out in virtually the same form as the handwritten copy brought in by the testator. Upon being notified the will was ready, testator came in, and on the 21st day of August 1970 the will was signed by the testator with Arnim and Arnim’s secretary as witnesses; the notary duties on the self-proving affidavit were performed by another secretary of Arnim. All three testified as to the formalities of execution of the will and to the elements of testamentary capacity of testator, that on the date of signing of the 1970 will, testator was of sound mind.

Appellants (proponents of the will) were the sole beneficiaries under the terms of the will. They had been close friends with testator since 1937. Appellant Wright and testator had worked together for the same company many years. After testator had moved to the farm ill Sehulenburg, appellants moved their trailer up to testator’s farm in 1966 or 1967. Testator executed a deed to 6.93 acres of land upon which appellants located their trailer and lived there, in close friendly relationship with testator. Testator was very fond of their daughter.

During the period of time at least two years prior to the execution of the 1970 will until he entered the hospital in 1973, the testator was engaged in a variety of businesses and social activities. During this time, he handled his Sehulenburg farm on which he lived, doing such farm work as feeding his cattle, doing routine maintenance work on farm machinery, and mowing weeds with his tractor.

Prior to 1968, he was in partnership with contestant’s witness Kruse. He made a new arrangement for operating his Shiner farm with the witness Gerdes, and in 1970 another arrangement was made with Gerdes’s son for operating the Shiner farm.

In 1967, testator made a lease contract with the witness Cain on some rental property owned by him in Dallas, and this lease was again negotiated in 1970 with a supplemental agreement. Shortly after executing the will in 1970, testator placed his home in Dallas on the market, listing the property with a long-time friend, and, after a series of negotiations, the property was sold in 1971. In 1969, testator purchased a new truck; the following year he bought a tractor. In 1970, he was considered as the “foreman” of the job of raising the elevation of a dam on his farm.

During these years, he was making frequent trips to Dallas, driving his own car and sometimes taking with him his nephew, a disabled war veteran, who was a ward of one of the contestants, for treatment in the Veteran’s Hospital. During this time, testator was buying farm supplies as well as personal items and paying for them by check or cash. As one witness stated, “He was making his own deposit slips and neatly balancing his checkbook each month. He was keeping neat records of his farm income and expenses, furnishing his income tax data to his tax accountant and signing his tax returns.” 'A witness testified as to testator’s skill and versatility with his tools. Shortly before executing the 1970 will, the testator completed a short course on welding and afterwards used and practiced such activity.

Testator entertained guests in his home, including some of the contestants, who were visiting with him the month before the execution of the 1970 will.

The testimony was very lengthy, consisting of approximately 2,400 pages in the Statement of Facts from approximately fifty witnesses. Appellants presented numerous witnesses testifying that at the time of the execution of the will in question testator was of sound mind. Such conclusion was also given by the niece of the testator.

Appellants discharged their burden of proof in such manner, and it then became the burden of contestants to destroy the prima facie case made by appellants (proponents).

To show lack of testamentary capacity on the part of testator, contestants presented testimony from witnesses as follows:

Witness Bueek testified that testator came into Bucek’s restaurant frequently; that in 1969 testator began to shuffle his feet when walking; his clothing and outward appearance was shabby; that he would get radical and irrational, and, based upon this, witness testified that testator was of unsound mind. Witness states that if testator left a will of this kind he had gone out of his mind. The basis of witness’s opinion as to unsound mind was testator’s radical reaction to things, such as the way he talked about how bad his food was, how bad the employees were, and how bad Texas A & M athletic program was. The witness admitted that testator knew the property he owned and that he could recognize his nearest of kin.

Witness Joe Schwartz testified that testator shuffled his feet, appeared sick, and it was difficult to understand what testator said. Based upon this observation, witness considered testator to be “mentally weak.”

Witness Clyde Haynes testified that testator was an intelligent man until he reached a point where he “didn’t remember” and had a pretty clear mind “until he started forgetting; ” that testator began to “scuffle” his feet; that while in the hospital in 1973 testator wrote letters indicating he thought he was in Sehulenburg when in fact he was in a hospital in Houston.

Witness Juanita Schaefer recalls an incident in 1967 when testator became angry with her; she observed a change in the way he walked; he began to shuffle his feet in his later years; his manner of speech changed and he mumbled most of the time; he was forgetful. In the later ’60’s his outward appearance changed; that on one occasion the witness and two others were watching a parade, and testator walked by with a radio playing loudly and when asked to turn it down, he cursed her.

Raymond Kruse recalled that on two occasions testator did not recognize him; testator changed the way he walked in the ten years he knew him; he began to repeat himself; his appearance changed; he would become emotional when talking" about the loss of his wife; he would make suggestions as to how to conduct the cattle business operated by witness and testator which were unworkable and that testator would use bad judgment.

Mylla Wolters testified that she had known testator since 1969; whenever testator visited in her home he would speak about other members of his family, his friends, and his cattle business; that she began receiving letters referred to as the “Q-lix” letters in which testator talked about visits to other countries in his “Q-lix” machine.

Witness Vickery, who was testator’s tax accountant, stated that the testator considered the “Q-lix” letters as a joke, that the witness joked with him about taking trips in the machine and that they both considered this was a joke. The medical witness Dr. Fields testified that (referring to the letters) “That doesn’t seem to be rational to me. I think that is about all the commenting I have.” Vickery also testified that he had not noticed any change in testator’s walking; that he walked like he might have had an arch problem or flat feet. He testified that testator was of sound mind and that he had the mental capacity to know and understand the nature and extent of his property, and to know who his relatives were and his next of kin and that on August 21, 1970, he knew the effect of his acts of making a will.

Other witnesses testified along the same lines as the witnesses heretofore referred to with reference to testator’s mumbling, shuffling of feet, and his outward appearance.

Dr. Frank Bastían, a neuropathologist, testified that he made a neurological examination of the brain tissue of the testator which was made several months after testator’s death in 1975 and five years after the making of his will. He testified that he diagnosed testator as having Creutzfeldt-Jakob disease (hereinafter referred to as Jakob’s disease). He did not know how long testator had the disease. He testified that in most cases death from such disease occurs some three to twenty-four months from the onset of the disease.

Dr. William Fields confirmed Dr. Bas-tian’s diagnosis of Jakob’s disease, which is a very rare disease. The witness had only seen six to seven patients with such disease during the entire period of his medical practice. He states that the disease, in the early stages, starts at the frontal part of the cortex of the brain which relates to a person’s judgment, memory, and thought processes. It then gradually spreads over other parts of the brain, affecting walk, and people with this disease have a tendency to shuffle their feet. Once the physical symptoms of the disease become apparent, such as shuffling gait, jibberish, shortness of memory, radical personality or behavioral changes, the disease is obviously present in the brain, including the cortex, and that this would impair his ability to reason, his judgment process and intellect. However, he testified that a lapse of memory would not be an indication of Jakob’s disease. He further stated that a medical record (which was in evidence) stating “during the testing, patient had no difficulty following complex written or verbal instructions” indicates to him (the witness) that the patient (testator) had a certain mental capacity and that such results show that it was not typical of Jakob’s disease. Most of the witness’s testimony concerned itself with symptoms of the disease and what act could be consistent with such disease. He states that a man with Jakob’s disease could be sensible one day and not all right the next, except for the very late stages; that on the day of the execution of the will, “he could have been having a good day.” Dr. Fields did not testify as to the severity of the disease at or preceding the execution of the will. He testified that he had never known the testator and had never seen him or treated him. All he knew about the testator were the things which he had been told by others. Based upon those matters, he concluded as to the making of the 1970 will, “I can only conclude by 1970 he [testator] would have had great difficulty in remembering things sufficiently well to have executed such an instrument in detail.” We note here that the only detail in the will was the clause giving all his property to the proponents. Dr. Fields also indicated that the testator probably knew that he owned his bank account and that he probably knew that he owned his stocks and bonds as well as his other properties. The doctor further testified that radical surgery and removal of the larynx could have caused a sudden change resulting in stress that could have made his condition worse; that the cancer necessitating the removal of the larynx would have interfered with testator’s breathing and would affect his speech. He testified that based upon the presence of Jakob’s disease, “We would have to say he was of unsound mind.”

The witness Dr. Braden testified that testator underwent surgery in 1973 for cancer and removal of his larynx. After this surgery, testator had pronounced generalized failure in his health. He was later hospitalized and grew progressively worse and died one month later; that cancer was the cause of his death; that at the time he first examined testator he was of sound mind. “He was a sick man. He was acutely ill. He was grasping for breath, but from a medical standpoint I feel he was normal.” He stated unequivoeably that testator was of sound mind. From the time of testator’s first admission in 1973 until his second admission in 1975, testator had shown evidence of mental deterioration in addition to general physical deterioration.

Testamentary capacity is generally defined as the ability to know and understand the business in which the testator is engaged, the effect of the action of making his will, the capacity to know the objects of his bounty, and the claims upon him and the general nature and extent of his property. See Hamill v. Brashear, 513 S.W.2d 602 (Tex.Civ.App.—Amarillo 1974, writ ref’d n. r. e.); Miller v. Flyr, 447 S.W.2d 195 (Tex.Civ.App.—Amarillo 1969, writ ref’d n. r. e.).

Our Supreme Court in Lee v. Lee, 424 S.W.2d 609 (Tex.1968), states:

“The proper inquiry in a will contest on the ground of testamentary incapacity is the condition of the testator’s mind on the day the will was executed. Since there is no direct testimony in the record of acts, demeanor or condition indicating that testator lacked testamentary capacity . . [date of execution of will], testator’s mental condition on that date may be determined from lay opinion testimony based upon the witnesses’ observations of testator’s conduct either prior or subsequent to the execution [citing cases]. However, only that evidence of incompetency at other times has probative force which demonstrates that that condition persists and ‘has some probability of being the same condition which obtained at the time of the wills making. * * *’ 1 McCormick & Ray, Texas Law of Evidence, § 896, at 675 (2nd ed. 1956); Annot. 168 A.L.R. 969 (1947).”

In the case of Bell v. Bell, 237 S.W.2d 688 (Tex.Civ.App.—Amarillo 1951, no writ), the court reversed a judgment based on the verdict of the jury as to lack of testamentary capacity stating:

“ ‘A testator may be old and infirm, weakened in energy and impaired in his senses, but, if he responds to the test which is applied to human beings in the ordinary affairs of life, the disposition of his property will be respected. “It is not for juries nor courts to say how property should be passed by will. They can do no more than see that the testator’s mentality meets the law’s tests.” ’ ”

In the ease of Stolle v. Kanetzky, 259 S.W. 657 (Tex.Civ.App.—Austin 1924, writ dism’d), the court in reversing and rendering a judgment annulling a will states:

“ . . . It is true that some of the acts testified to may establish the fact that the deceased was a mean man, or a criminal, or uncouth and coarse, or that he would disregard his contract, or that he did acts in a jocular manner under circumstances that it was not wise to do so, but in no way are they sufficient as a matter of law to establish insanity.”

The testimony in the record before us concerns itself with symptoms of a disease; yet the testimony as to the severity of the disease on the date of the execution of the will is very weak and vague. We find competent testimony showing that on the date of the execution of the will in question, the testator was carrying on the normal activities of his life; that he knew and understood the business in which he was engaged, the effect of the action of making his will; and that he had the capacity to know the objects of his bounty, the claims upon him, and the general nature and extent of his property. The evidence of incompetency loses its strength when we examine it against the standard of the definition as stated in the court's charge, and the legal tests as laid down in the cases cited.

We overrule appellants' no evidence point, but hold that the finding of the jury as to the lack of testamentary capacity is so greatly against the overwhelming weight of the evidence as to be manifestly unjust.

As to appellants’ points under “undue influence,” we will not recite or detail the evidence in the record attempting to prove the element of undue influence.

In an “undue influence” case, contestants have the burden of proving: (1) the existence and exertion of an influence; (2) the effect of the operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the will; and (3) the execution of a will which the maker thereof would not have executed but for such influence. Because a contestant has the burden of proving undue influence, he must introduce some tangible and satisfactory proof of the existence of each of the above elements. In re Estate of Woods, 542 S.W.2d 845, 847 (Tex.1976); Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex.1963).

We have carefully reviewed the entire record before us, and we find and hold that as to the three elements of undue influence stated above, the finding of the jury as to undue influence is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust.

The judgment of the trial court is reversed, and the cause is remanded.

REVERSED and REMANDED.