author: TODD, Justice.

text:
    Virginia Jewell Hubbs PALMER, Original Plaintiff, v. Landon Louis PALMER, Original Defendant, James R. Sasser and Harvey L. Sproul, Intervening Petitioners, Appellants.
    Court of Appeals of Tennessee, Middle Section.
    Oct. 28, 1977.
    Certiorari Denied by Supreme Court Feb. 27, 1978.

      Virginia Jewell Hubbs Palmer, pro se.
    Jess D. Campbell, Knoxville, for Landon Louis Palmer.
    William H. Woods, Goodpasture, Carpenter & Woods, Nashville, for intervenors.
   OPINION

TODD, Justice.

In this divorce case, James R. Sasser and Harvey Sproul, attorneys for plaintiff, have appealed from an order of the Trial Judge which fixed a lien upon real estate granted to plaintiff to secure $6,000.00 of appellants’ fee but denied a lien to secure the remaining $6,000.00 of the total $12,000.00 fee allowed to appellants.

Appellants have filed assignment of errors and brief. A joint reply brief has been filed on behalf of plaintiff and defendant; however, at the bar of this Court, counsel for defendant stated that he represented only the defendant. Plaintiff appeared and presented oral argument on her own behalf.

There is no bill of exceptions. The cause is before this Court upon technical record only.

The assignments of error are as follows:

1.
“The Trial Court erred by changing a decree which had become final, to-wit, the decree of March, 1973 (TR 40), which impressed a lien upon the property obtained for complainant in this cause (TR 43), which decree was changed in November, 1976 by ‘Memorandum’ (TR 140) and Order (TR 141) of the Court.
2.
“The Trial Court erred in not impressing a lien for the full amount of plaintiff’s attorneys’ fees against the 14-acre tract of ground owned by her former husband obtained for plaintiff by her attorneys in this cause.
3.
“The Trial Court erred in failing to hold that defendant had no ‘standing’ to raise the question concerning the placing of the lien against the 14-acre tract of land for the full amount of reasonable fees awarded plaintiff’s attorneys.”

On March 5, 1973, a final decree was entered wherein plaintiff was awarded an absolute divorce, and custody of two minor children. Paragraph (3) of said decree required continuance of previously ordered alimony and child support payments. Paragraph (4) of said decree divested defendant of title to 14 acres in Loudon County, Tennessee (describing same fully) and vested same in plaintiff. Paragraph (5) of said decree divested defendant of title to “property located in the Four Seasons Resort in DeKalb County” and vested same in plaintiff without other description. Paragraph (6) of said decree provided verbatim as follows:

“6) The attorneys for Complainant are entitled to a reasonable fee for their services to Complainant in this Cause and a lien is hereby declared upon the aforede-scribed property in Paragraphs 3 and 4 of this Decree, the amount of said lien to be set upon further orders of this Court.”

On April 24, 1974, a “Motion for Attorney’s Fee” was filed which begins with the words,

“COME the solicitors of record for the complainant Virginia Jewell Hubbs Palmer, James R. Sasser and Harvey Sproul and would respectfully show to the Court the following matters:”

The record shows that a copy of the motion was served upon counsel for defendant, but there is no record of any notice to plaintiff of said motion.

On March 26, 1976, the Trial Judge filed a memorandum resulting in a decree entered on April 20, 1976, providing verbatim as follows:

“It is accordingly, ORDERED, ADJUDGED AND DECREED that Harvey L. Sproul and James R. Sasser, attorneys for plaintiff, be awarded a fee of $12,-000.00 for their services in this cause, with the plaintiff, Virginia Jewell Hubbs Palmer, being responsible to pay one-half of the fee in addition to the $500.00 previously awarded. It is further ORDERED and DECREED that the lien established by the Court in its decree dated February 22, 1973, be continued and a lien be impressed upon all the properties of each of the parties until the fees awarded to plaintiff’s attorneys have been satisfied in full, with specific reference being made to the following described tract of land which was owned by the defendant when these proceedings began, but having been awarded to plaintiff in the aforementioned decree of February 22, 1973:” (Here follows a description of the Loudon County property.)

On April 19, 1976, defendant moved to “set aside the memorandum of March 26, 1976” on certain grounds.

On May 17, 1976, a “Motion to Strike” was filed which states in part:

“Comes the plaintiff, Virginia Jewell Hubbs Palmer, and her attorneys, Harvey L. Sproul and James R. Sasser, and moves the Court to strike the motion to set aside the Court’s memorandum of March 26, 1976, and the subsequent order, on the following grounds:
* * * * # *
“5. Any complaint concerning the action of this Court as to liens on the property of plaintiff is not within the prerogative of defendant to raise The agreement or contract of employment is between plaintiffs attorneys and plaintiff, and the first responsibility for payment of such fees lies with the plaintiff in this regard and such is particularly so concerning any property which she may receive as a part of the settlement in this cause.”

The usual certificate of service upon adversary counsel is appended to this motion, but there is no record of any notice of same to plaintiff.

On May 17, 1976, a motion was filed stating in part:

“Comes the attorneys for plaintiff and move the Court that the Memorandum of Opinion and the Order entered herein be amended or altered as follows:
1. To provide that the fee for plaintiff’s attorneys be set at $15,000.00 as requested.
2. That defendant be declared and adjudged to be responsible for the entire fee, but that the lien established by the Court be specifically adjudged as against the 14-acre tract.
3. The judgment of the Court as to attorneys’ fees should be stated in such a way as to indicate plaintiff’s responsibility for paying her own lawyers, but to require full responsibility on plaintiff’s ex-husband for all of the fees for plaintiff’s attorneys, who should be responsible for reimbursing plaintiff for all the fees.”

Again, there is no evidence that plaintiff was notified of the filing of the motion.

On January 24, 1977, an order was entered providing as follows:

“This cause came on to be heard on the 1st day of July, 1976, upon the motion of defendant Landon Louis Palmer regarding attorney’s fees set by the court and liens upon the property of the plaintiff Virginia Jewel Hubbs Palmer for the collection of attorney’s fees awarded against the defendant Landon Louis Palmer, and upon a motion to strike the motion of the defendant, and a motion to alter or amend a prior order of this court filed by the former attorney of the plaintiff. . After argument and testimony, the court has rendered a memorandum opinion, and pursuant to that finding, it is hereby ORDERED that the motion of the defendant is granted in part and the motions of the plaintiff’s former attorney are overruled so that the prior attorneys fees awarded of $12,000.00 shall be affirmed. The plaintiff shall be responsible for paying one-half (½) the fees, or $6,000.00, and the lien heretofore impressed upon her property shall stand for that amount alone. The defendant shall pay fees of $6,000.00, and the property of the plaintiff shall not be impressed with any lien for the payment of the defendant’s portion of the fees owed.”

The preceding order was approved by signatures of plaintiff, her attorney and counsel for defendant.

On February 9,1977, a “Petition to Intervene” was filed, reading in part as follows:

“Come now James R. Sasser and Harvey L. Sproul who would respectfully show to the Court:
1. These attorneys formerly represented Mrs. Virginia Jewel Palmer in this cause and secured for her an absolute divorce from the defendant Landon Louis Palmer. .
“The petitioners will be irreparably harmed by the release of this lien in that they will be unable to collect one-half of their fee for valuable services rendered to plaintiff Virginia Jewel Palmer and as a result of which the said plaintiff secured valuable properties.
“PREMISES CONSIDERED, James R. Sasser and Harvey L. Sproul, intervenors, be allowed to intervene in this cause to protect their interests in the attorney’s fees heretofore awarded them by the Court.
cc: Mr. Jess Campbell
Attorney-at-Law
Southern Industrial Bldg.
205 Clinch Ave., S. W.
Knoxville, Tennessee 37902
Mrs. Virginia Jewel Palmer”

On March 30, 1977, an order was entered reading in part as follows:

“This cause came on to be heard on March 17, 1977 before the Honorable Benson Trimble, Judge, the complainant being present in Court and counsel for the defendant and intervenors being present, upon the petition of Harvey Sproul and James R. Sasser to intervene in this cause to protect their interest in the fee heretofore allowed them by the Court which motion the Court finds is well taken and said attorneys are allowed to intervene in this cause.
“The cause came on to be further heard upon the motion of the intervenors for the Court to reconsider its action heretofore taken in regard to the $12,000.00 fee allowed the intervenors and fixing a lien on the property which said intervenors had obtained for the complainant from the defendant to secure the payment of their fee and reducing the lien fixed on said property to $6,000.00 by ordering that the complainant would be liable for only $6,000.00 of said fee and that the defendant be obligated for the remaining $6,000.00.
“The Court is of the opinion that the motion to reconsider its action in reducing the lien on this property to $6,000.00 is not well taken and same is accordingly overruled.”

Appellants first insist that the divorce decree of March 5, 1973, became final after the lapse of 30 days thereafter and that any attempt to alter same is untimely. The quoted portion of said decree, supra, merely states that attorneys for complainant are entitled to a reasonable fee (amount not stated) and declares a lien upon certain property (purpose of such lien not stated) and further provides:

“the amount of said lien to be set upon further orders of this Court.”

It is therefore obvious that the decree of March 5, 1973, was not a final adjudication of the amount of the fee of appellants or the lien to secure same.

Appellant next relies upon the “Memorandum” of March 26, 1976, quoted supra. No principle is better known than that which states that a Court speaks through its orders and decrees entered upon the minutes of the Court.

The decree of April 20, 1976, implementing the memorandum of March 26, 1976, must be regarded as the authoritative and effective action of the Trial Court.

Appellants insist that the memorandum (decree of April 20, 1976), established the rights of appellants to a $12,000.00 lien upon their client’s property which was final and could not thereafter be changed by the Court.

The motion filed by defendant on April 19, 1976, to “set aside the memorandum of March 26, 1976,” must be regarded as a motion for new trial or petition to rehear or motion to alter or amend judgment in respect to the decree of April 20 which implemented the memorandum of March 26, 1976. Viewed in this light, said motion preserved jurisdiction of the Trial Court to set aside, alter or amend the decree of April 20, 1976, until the motion should be ruled upon.

The “Motion to Strike” filed by appellants (quoted supra) correctly stated that the issue of fees to be paid by plaintiff to her attorneys is peculiarly between plaintiff and her attorneys.

On May 17,1976, within 30 days after the decree of April 20, 1976, appellants filed a motion which in effect was a motion for new trial, a motion to alter or amend, or a petition to rehear in respect to the decree of April 20,1976. Significantly the record discloses no issue made or tendered to plaintiff in respect to the fee, in spite of the previous protestations that the fee was a matter between plaintiff and her attorneys. This motion preserved and extended the authority and jurisdiction of the Trial Judge to alter or amend his decree of April 20, 1976.

In any event, the above mentioned motion of defendant, filed on April 19,1976, and the above mentioned motion, filed by appellants on May 17, 1976, served to preserve and extend the jurisdiction and authority of the Trial Judge to vacate, alter or amend his decree of April 20,1976, and said authority and jurisdiction continued to January 24, 1977, when the Trial Court apparently disposed of both motions in his decree of that date.

There is considerable doubt that the “petition to intervene” filed by appellants on February 9,1977, within 30 days of January 24,1977, effectively preserved and extended the authority of the Trial Judge to vacate, alter or amend his decree of January 24, 1977; but, as indicated above, he declined to do so on March 30, 1977, which renders this question moot.

The first assignment of error is respectfully overruled.

In support of the second assignment of error appellants’ brief states that “the law of Tennessee is or should be that attorneys for a plaintiff are entitled to a lien upon the recovery effected in court to secure their fees for so doing.”

§ 29-202 T.C.A. does provide for a lien “upon the plaintiff’s . . right of action.”

Appellants cite Railroad v. Wells, 104 Tenn. 706, 59 S.W. 1041 (1900), wherein the railroad settled with plaintiff for $100.00 while his $1,999.00 damage suit was pending in court. When the railroad sought dismissal of the suit, the Court awarded judgment against the railroad and in favor of plaintiff’s attorneys for $50.00. The Supreme Court held that the Trial Court should have rendered judgment in favor of the plaintiff and against the defendant for $100.00 to be satisfied by payment of the attorneys fee, to be established by the Court.

Appellants cite Hunt v. McClanahan, 48 Tenn. (1 Heisk.) 503 (1870) which recognizes the equitable “lis pendens” as effective during litigation and specified in final judgment or decree. In said opinion, the Master was directed to hear proof and report a reasonable fee.

As stated, appellants in the present case complain that, whereas the Trial Judge determined that a reasonable fee was $12,-000.00, he directed that plaintiff pay only $6,000.00 of same and that only $6,000.00 of same be secured by lien.

Appellant’s brief suggests that if the Courts do not assure the payment of fees which are deemed adequate “second thoughts” may arise as to loyalty to client’s interests to the preference of the interests of counsel. This Court does not accept the premise that the honorable bar of this State would neglect or betray the interests of their clients in order to assure payment of a fee.

Appellants cite a headnote from Donlon v. Donlon, 57 Tenn.App. 319, 418 S.W.2d 448 (1967). In that case, the Trial Court granted a divorce to the wife and ordered that the husband pay one-half of her attorney’s fee. The decree stated that the wife was “obligated” for the other half of the fee, but she was not ordered to pay it. Her attorneys sought to enforce a lien to secure the fee owed them by the wife. This Court held the proceedings to be irregular and, finding that the wife had satisfied her obligation to her attorneys, terminated the action upon the lien as moot. The cited case is not authority for enforcing the lien for attorney’s fees due from the husband by encumbering the property of the wife.

It appears in the present case that the wife has paid the $6,000.00 portion of the fee for which a lien was declared upon her property. The present case therefore differs from the cited case in that the appellants are seeking a lien on the wife’s property to secure a fee due them from the husband.

Appellants rely upon the principle stated in Winslow v. Winslow, 133 Tenn. 663, 182 S.W. 241 (1915); Sanders v. Sanders, 40 Tenn.App. 20, 288 S.W.2d 473 (1955) and authorities cited therein. Said principle in substance is that, where a wife is without resources to provide counsel for herself, the court will require her husband to provide funds necessary for procuring services of counsel by a grant to her of attorney’s fees ad litem. In practice, such fees are almost uniformly ordered to be paid to the wife’s counsel, but the grant is justified as an allowance to the wife for a necessary expense.

In the same manner, at the conclusion of a divorce case, if the wife is without sufficient resources to property compensate her attorney, and if the financial provisions made for the wife by way of alimony periodic and/or in solido do not include the means of compensation of her attorney, then (and only then) the court is authorized to and will grant to the wife additional alimony for the purpose of enabling her to pay her attorney. In practice such “additional alimony” is frequently designated simply as fee to be paid to the wife’s counsel; but the justification and principle are the same, i. e. that money ordered to be paid by the husband to the wife’s attorney is additional alimony allowed to the wife.

There is another principle, frequently enunciated in unpublished opinions of this Court, that a divorce court has no authority to order the successful wife to pay to her attorney any amount, this being a matter of contract between herself and her counsel, and not ordinarily being an issue to be determined in a divorce proceeding. If counsel desires a judgment in his favor and against his client, relief should be sought in adversary proceeding equivalent to a suit by the attorney against his client. This principle is not of determinative importance in the present appeal because, as stated, the wife paid to her counsel the $6,000.00 as ordered by the Trial Court.

There is a situation in which a Trial Court may, to a degree, rule upon the rights of counsel against his client, and that is when counsel seeks the declaration and enforcement of his lien against the funds or property recovered by his efforts. In such event, the Trial Court must perforce determine the extent (amount) of the lien to be enforced. This is what occurred in Railroad v. Wells. In effect, this is what occurred in the present case.

Originally, the Trial Judge simply granted a lis pendens, indefinite in amount. Subsequently, the Trial Judge adjudged that the services of the wife’s counsel were worth $12,000.00. In respect to the rights of the husband, the adjudication was probably upon proper procedural foundation. In respect to the rights of the wife, the adjudication was probably not upon proper procedural foundation because the wife’s counsel had not created an adversary relationship between themselves and their client by proper process and pleading to place the wife on the defensive as to the relief desired against her.

In any event the $12,000.00 adjudication never became final because of two timely motions to vacate, alter or amend the adjudication. Eventually, acting under his powers to alter extended by the pendency of the motions, he saw fit to amend his adjudication to divide responsibility for the fee equally between the parties and to limit the lien upon the property recovered in the suit to $6,000.00. This lien was satisfied when the wife paid $6,000.00 to her counsel.

Appellants insist that the Trial Judge erred in failing to allow a lien against the property of the wife for the full $12,000.00. Without a bill of exceptions, this Court is without any means of reviewing this action of the Trial Judge. This Court cannot agree with appellants that the allowance of a $12,000.00 fee to be paid one half by the wife and one half by the husband thereby compels the Trial Judge to declare a lien for the entire $12,000.00 against property awarded to the wife.

In fixing the amount of the lien, the Trial Judge must be allowed a measure of judicial discretion based upon all of the facts and circumstances which are not preserved for examination by this Court. For example, the agreement between the wife and her counsel as to fees would be highly material. In her oral presentation to this Court, the wife made references to conversations with her attorneys about their fee. This Court has no means of knowing what evidentiary statements were made to the Trial Judge in this regard.

The value of the property involved is a very material factor in fixing the amount of the lien. If the property was worth no more than $12,000.00, it would be almost inconceivable to award counsel a lien upon 100 per cent of this part of the recovery unless adequate funds were provided otherwise for payment of the $12,000.00 by the wife. There is no evidence in this record as to the value of the property or the financial ability of the wife to pay $12,000.00 to exonerate the property.

In short, the meager showing of the technical record is not sufficient to justify the reversal of the action of the Trial Judge as sought by appellants.

The second assignment of error is respectfully overruled.

This Court is inclined to agree with appellants’ third assignment of error that the defendant husband has no standing to assert or defend the property rights of his divorced wife. The reply brief of appellees is signed by counsel for the husband and by the wife in her own proper person. It has been considered as the brief of the wife, since she appears to have adopted it.

Moreover, because of the personal appearance by the wife before this Court and her appealing oral plea for justice, this Court has examined the justice of the issue without relying solely upon the brief and argument of appellees.

This Court is not unsympathetic with counsel who at first were led to believe they would recover a $12,000.00 fee and now find (as they insist) that only $6,000.00 will actually be received. It is well known, however, that many fees awarded in divorce cases are never collected; and counsel may consider themselves more fortunate in the present case than other counsel who have fared far worse in other eases.

As the technical record is viewed in the light of the cited authorities, the net effect of the actions of the Trial Judge is as follows:

The Trial Judge decided that the wife was able to pay and should pay her counsel $6,000.00 fee to secure which he declared a lien upon property awarded to the wife. This fee has been paid and this lien has been discharged.

The Trial Judge has awarded the wife additional alimony of $6,000.00 for the purpose of paying an additional fee of like amount to her attorneys and has declared a lien upon this additional alimony by ordering it paid to the wife’s attorneys. If and when the attorneys collect this additional alimony, they have a lien upon and are entitled to the full amount.

The actions of the Trial Judge are affirmed. Costs of this appeal are taxed against appellants.

Affirmed.

SHRIVER, P. J., concurs.

DROWOTA, J., not participating.


source: Caselaw Access Project

author: GALBREATH, Judge.

license: Public Domain

text:
    Leslie Leroy PATTON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Nov. 15, 1977.
    Certiorari Denied by Supreme Court March 20, 1978.

      Burt Raymond Francis, Jr., Asst. Public Defender, Nashville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., William 0. Kelly, Asst. Atty. Gen., Thomas H. Shriver, Dist. Atty. Gen., Sterling P. Gray, Jr., Harold B. McDonough, Jr., Asst. Dist. Attys. Gen., Nashville, for appellee.
   OPINION

GALBREATH, Judge.

Among his assignments of error the appellant avers that the trial judge refused to hear evidence to the effect that the Davidson County Criminal jury, finding him guilty of rape and assessing punishment at 72 years in the penitentiary, arrived at the verdict by agreeing in advance to fix the punishment by dividing the total of all the jurors’ suggested sentences by the number of jurors. Such a quotient verdict is not lawful in Tennessee. See Thompson v. State, 197 Tenn. 112, 270 S.W.2d 379 (1954). Compelling us to overrule this assignment is the insurmountable difficulty confronting the appellant in the fact that the record before us contains no reference to the fact alleged, or that the matter was even brought to the attention of the trial judge. We cannot consider this type of alleged error if it is raised for the first time on appeal. Crumpler v. Henderson, 1 Tenn.Cr.App. 47, 428 S.W.2d 800 (1968).

The conviction was based not only on the testimony of the victim, but on the defendant’s confessions and incriminating evidence found in his automobile when arrested. Not surprisingly, there is no contention made here that the defendant was not guilty. The other assignments object to the admission of evidence, primarily the confession and a stocking cap observed by the officer in plain view when the defendant was seized, as aforesaid, in his car, and a pistol found under the front seat at that time by the arresting officer.

The defendant, during an out of jury hearing, did not contend that he was mistreated or that he did not freely waive his rights against self-incrimination in giving the confession. Instead he contends, relying on the rationale in Vandegriff v. State, 219 Tenn. 302, 409 S.W.2d 370 (1966), that due to alcohol and drug ingestion prior to his arrest he was not capable of giving an informed waiver. The trial judge held to the contrary and the record supports his holding.

Lastly, the defendant questions the qualifications of a witness who testified that a fingerprint found on the victim’s automobile, in which the rape occurred, matched .one of his. The witness had been working in the fingerprint section of the Metropolitan Police Department for three years and had undergone special training in order to become an expert in fingerprint identification. Whether he was qualified or not was a matter that addressed itself to the good judgment of the trial court. We cannot disturb the exercise of that discretion in the absence of manifest abuse. There was none.

The judgment of the trial court is affirmed.

RUSSELL, Panel P. J., and DAUGH-TREY, J., concur.

OPINION ON MOTION TO RECONSIDER

By motion, the appellant requests that this cause be remanded to the trial court for the purpose of inserting into the record evidence in support of his contention that the jury was, by an agreement, to abide by a quotient verdict.

Whether such proof, in the form of affidavits, was presented to the trial judge in support of the motion for new trial is not suggested in the motion, but no good cause appears that would justify permitting a late filing under the applicable provisions of T.C.A. § 27-111.

Nothing is averred in support of an alternative motion for us to reconsider our disposition of the appeal and the motion is overruled.

GALBREATH, RUSSELL, and DAUGH-TREY, JJ.


author: REAVLEY, Justice.

text:
    H. A. SEARS, Petitioner, v. CONTINENTAL BANK AND TRUST COMPANY, Respondent.
    No. B-6639.
    Supreme Court of Texas.
    July 20, 1977.
    Rehearing Denied Sept. 27, 1978.
    Van E. McFarland, Houston, Warren E. Burnett, Odessa, for petitioner.
    Reynolds, Allen & Cook, Joe H. Reynolds, Houston, for respondent.
   REAVLEY, Justice.

A depositor sued for a large sum which the bank “took” from his account. The pleadings suggest possible factual and legal issues, but the evidence leaves us virtually in the dark. The trial court directed a verdict against the depositor, and the Court of Civil Appeals affirmed. 553 S.W.2d 394. We remand the case for trial.

The statement of facts is quite brief. H. A. Sears presented a stipulation between the parties that “on August 29, 1966 the Bank took $431,305.11 out of the account of H. A. Sears, doing business as Sears Enterprises Inc.” Sears then introduced a copy of a bank ledger sheet which reflected the activity during August 1966 of an account with Continental Bank and Trust Company in the name of “H. A. Sears, dba Sears Enterprises.” This shows a reduction in the balance on August 29 and, attached thereto, is a copy of a notice from the Bank to Sears showing that the account has been charged $431,305.11 as follows: “Apply to note of James W. Williams, Ernest M. Hall, Jr. & H. A. Sears.”

There is evidence that this account is owned by the plaintiff. We will presume that this H. A. Sears is the same person who owned an account in the name of “H. A. Sears dba Sears Enterprises” or “H. A. Sears dba Sears Enterprises Inc.” See United States Fidelity & Guaranty Co. v. First National Bank, 81 S.W.2d 213 (Tex.Civ.App.1935, writ dism’d); Peoples National Bank v. William Tell Lodge No. 27, 77 S.W.2d 929 (Tex.Civ.App.1934, no writ). The defendant itself pleaded that the plaintiff, H. A. Sears, was indebted to the defendant on the note and that this indebtedness was offset in taking $431,305.11 out of the account of “H. A. Sears, d/b/a Sears Enterprises.”

The relationship of a bank to its general depositors is that of debtor to creditor. City Nat. Bank of Bryan v. Gustavus, 130 Tex. 83, 106 S.W.2d 262 (1937). It follows that the bank has the right to set off against an amount on deposit an equal amount of indebtedness owed by the depositor to the bank. First Nat. Bank of Schulenburg v. Winkler, 139 Tex. 131, 161 S.W.2d 1053 (1942). The bank must justify its withdrawal from the depositor’s account when the depositor proves the balance in his account and sues the bank for that amount. Mesquite State Bank v. Professional Invest. Corp., 488 S.W.2d 73 (Tex.1972). We do not agree with Sears that the Continental Bank and Trust Company may assert the right of setoff only by pleading and proving the promissory note or other indebtedness as a counterclaim. The Bank does, however, have the burden of proving the indebtedness which justifies its deduction from the account balance owing to the depositor Sears.

There being no proof that the amount withdrawn from the account was owed to the Bank by Sears, the directed verdict in favor of the Bank was improper. The judgments of the courts below are reversed, and the cause is remanded to the trial court.

McGEE, J., notes his dissent.


author: McGEE, Justice. SAM D. JOHNSON, Justice,

text:
    Paul BARR et al., Petitioners, v. Milton Johnny BERNHARD et al., Respondents.
    No. B-6698.
    Supreme Court of Texas.
    Feb. 15, 1978.
    Rehearing Denied April 5, 1978.

      Groce, Locke & Hebdon, Edward P. Fa-hey and J. Michael Myers; Clark, Thornton & Summers, Robert Summers, San Antonio, for petitioners.
    Bob Gibbins, Bill Zook, Austin, for respondents.
   McGEE, Justice.

This is a summary judgment case involving the liability of the Kerrville Independent School District and certain of its individual employees for personal injuries sustained by Mark William Bernhard, a student at Tivy High School of the Kerrville Independent School District. The trial court granted the School District’s plea in bar on the basis of governmental immunity and granted the individual defendants’ motion for summary judgment. The court of civil appeals affirmed the holding of the trial court regarding the School District, but reversed the judgment granting the individual defendants’ motion for summary judgment and remanded the cause to the trial court for a new trial. 547 S.W.2d 685. We reverse the judgment of the court of civil appeals and affirm that of the trial court.

Mark Bernhard was a student at Tivy High School and was enrolled in a vocational-agricultural course that called for him to raise a calf in order to satisfy the course requirements. The School District maintained a 73-acre facility, hereinafter referred to as the Ag Farm, where the students in the course could keep or raise their animals. It was not mandatory that the students keep their animals at the Ag Farm; but they could do so after obtaining permission from their instructors.

The Saturday on which the accident occurred, Mark was at the Ag Farm with his parents and some friends to care for his calf. There were no school personnel present at that time. After weighing his calf, Mark and his friends attempted to lead the calf back into an old army barracks that was used as a barn. The calf struck a metal pole which supported a gable roof over the entrance to the barn. The pole gave way and the roof collapsed, pinning Mark underneath the structure and severely injuring him.

Bernhard brought suit against the Kerr-ville Independent School District and certain of its individual employees alleging that they were negligent in several respects: (1) by failing to properly inspect the facility; (2) by failing to maintain or supervise the facility; and (3) by allowing the facility to be used while in a condition of disrepair.

THE LIABILITY OF THE SCHOOL DISTRICT

The law is well settled in this state that an independent school district is an agency of the state and, while exercising governmental functions, is not answerable for its negligence in a suit sounding in tort. See, e. g., Braun v. Trustees of Victoria Independent School District, 114 S.W.2d 947 (Tex.Civ.App.—San Antonio 1938, writ ref’d); Coleman v. Beaumont Independent School District, 496 S.W.2d 245 (Tex.Civ.App.—Beaumont 1973, writ ref’d n. r. e.). The Texas Tort Claims Act was enacted in 1970, and Section 3 of that Act provided for waiver of governmental immunity for the use of publicly-owned motor vehicles, premises defects, and injuries arising out of conditions or use of property. With respect to the liability of a school district, however, the Legislature provided for a more limited waiver of immunity. Section 19A of the Act states that a school district’s liability is limited to causes of action arising from the use of motor vehicles.

Bernhard seeks to avoid the preclusive effect of section 19A on his cause of action against the School District by arguing that this Court should abolish the provisions of section 19A that restrict a school district’s amenability to suit. He also argues that the School District waived any governmental immunity by the purchase of general liability insurance.

By his first argument, he urges this Court to judicially abrogate section 19A and place school districts on the same basis as other governmental units in waiving their immunity to the extent provided for under Section 3 of the Act. We recently held that any waiver of governmental immunity is a matter to be addressed by the Legislature, Lowe v. Texas Tech University, 540 S.W.2d 297, 298 (Tex.1976), and we are still of the opinion that it is the proper forum for such action.

Bernhard then argues that the School District waived its governmental immunity by purchasing liability insurance. He points out that several states have adopted this “insurance-waiver theory” in order to relieve unjust results that are sometimes produced by the doctrine of governmental immunity. We are not persuaded by this argument.

In support of his argument, Bernhard cites the case of Christie v. Board of Regents, 364 Mich. 202, 111 N.W.2d 30 (1961). There was no direct holding by the Michigan Supreme Court in that case that the governmental unit had waived its immunity by the purchase of the insurance. That court merely held that a trial court did not abuse its discretion by requiring the production of a liability insurance policy obtained by the Board of Regents as possible admissible evidence that the Board had waived its immunity to the extent of the policy limits. In fact, subsequent Michigan decisions have held that there is no waiver of immunity when a governmental unit purchases liability insurance. Sayers v. School District No. 1, 366 Mich. 217, 114 N.W.2d 191 (1962); Pichette v. Manistique Public Schools, 50 Mich.App. 770, 213 N.W.2d 784 (Mich.Ct.App.1973); Branum v. State of Michigan, 5 Mich.App. 134, 145 N.W.2d 860 (Mich.Ct.App.1966).

Bernhard also relies on the case of Schoening v. United States Aviation Underwriters, 265 Minn. 119, 120 N.W.2d 859 (1963). We do not consider this decision to be in point either. In Schoening, certain aircraft owners sued the municipality and its insurer for damages to the aircraft resulting from the collapse of a hangar at the municipal airport. Governmental immunity was held not to be a defense to the action to the extent that the municipality had purchased liability insurance to cover such risks. Id. at 865. In reaching its decision, the court relied on a statute that explicitly stated that governmental immunity was waived to the extent of the coverage of the liability insurance policy that was purchased. See Minn.Stat.Ann. § 466.06 (1977).

As was the situation in Minnesota, the waiver of governmental immunity by statutes expressing in clear and unambiguous terms that such immunity is waived only to the extent of the liability insurance purchased appears to be the trend among those states adopting the “insurance-waiver theory.” Holmes v. School Board, 301 So.2d 145 (Fla.D.Ct.App.1974) (construing Fla.Stat.Ann. § 234.03(4) (West’s 1977)); Longpre v. Joint School District No. 2, 151 Mont. 345, 443 P.2d 1 (1968); Clary v. Alexander County Board of Education, 286 N.C. 525, 212 S.E.2d 160 (1975) (construing N.C.Gen.Stat. § 115-53 (1975)). Therefore, Section 9 of the Texas Tort Claims Act is distinguishable in this respect since the language of that provision merely authorizes units of government to purchase liability insurance; no language is contained therein that expresses an intent on the part of the Legislature to waive governmental immunity by the purchase of liability insurance.

Moreover, Texas cases dealing with other governmental agencies have rejected the argument that the act of procuring liability insurance waives any governmental immunity. In Sears v. Colorado River Municipal Water District, 487 S.W.2d 810 (Tex.Civ.App.—Eastland 1972, writ ref’d n. r. e.) the plaintiffs sued the water district for damages resulting from a fire that the water district started on lake property. The trial court rendered summary judgment in favor of the water district based on the district’s claim of governmental immunity. The plaintiffs asserted that the district had waived its defense of governmental immunity because it had procured liability insurance. The court of civil appeals held that the trial court was correct in rendering summary judgment in favor of the district and stated, in accordance with prior cases, that “the all-important factor is that the procuring of indemnity insurance cannot create liability where none exists in the absence of such insurance.” Id. at 811; see Watkins v. Southcrest Baptist Church, 399 S.W.2d 530, 534-35 (Tex.1966); Jones v. Texas Gulf Sulphur Co., 397 S.W.2d 304, 307 (Tex.Civ.App.—Houston 1965, writ ref’d n. r. e.); Texas Prison Board v. Cabeen, 159 S.W.2d 523, 527 (Tex.Civ.App.—Beaumont 1942, writ ref’d).

Therefore, we hold that the School District is immune from liability under the doctrine of governmental immunity, and the trial court was correct in granting its plea in bar.

THE LIABILITY OF THE INDIVIDUAL DEFENDANTS

This case involves the initial interpretation of Section 21.912 of the Texas Education Code (Supp.1976-1977) by this Court. That section reads as follows:

“(a) The board of trustees of each school district within this state shall adopt policies specifying the duties of each of its professional positions of employment. The board of trustees shall assign positions of employment earned under the minimum foundation program to meet the specific needs of the district.
“(b) No professional employee of any school district within this state shall be personally liable for any act incident to or within the scope of the duties of his position of employment, and which act involves the exercise of judgment or discretion on the part of the employee, except in circumstances where professional employees use excessive force in the discipline of students or negligence resulting in bodily injury to students.
“(c) This section is not applicable to the operation, use, or maintenance of any motor vehicle.
“(d)-‘Professional employee,’ as used in this section, includes superintendents, principals, classroom teachers, supervisors, counselors, and any other person whose employment requires certification and an exercise of discretion.” [Emphasis added].

The purpose of this section is twofold: first, to provide local school boards with the authority to define the duties of professional school employees; secondly, to exempt such employees from individual liability for certain acts.

Section 21.912(b) grants qualified immunity to professional school employees for acts done within the scope of their employment involving judgment or discretion. Particularly, we are called upon to interpret the last clause of subdivision (b), the terms of which qualify the immunity by stating that there will be no personal liability “except in circumstances where professional employees use excessive force in the discipline of students or negligence resulting in bodily injury to students.”

There is language in the last clause which we find to be ambiguous. The problem is created by the use of the term “negligence” in the last phrase of that clause. At first glance, a reading of the last clause would seem to indicate personal liability for professional school employees who use excessive force in the discipline of students or who “use negligence” that results in bodily injury to students. Such a reading would be incorrect, however, because it is inaccurate to say that a person “uses negligence”; negligence occurs as a result of an act or omission by an individual. Because of this ambiguity, the meaning of the last clause is rendered uncertain and is susceptible of conflicting interpretations. Therefore, we are required to interpret the language of the statute involved in order to ascertain the intent of the Legislature. See Koy v. Schneider, 110 Tex. 369, 221 S.W. 880 (1920); Commissioners Court of Lubbock County v. Martin, 471 S.W.2d 100 (Tex.Civ.App.—Amarillo 1971, writ ref’d n. r. e.).

Bernhard would have us interpret the last clause in such a manner that an employee would be liable for either the use of excessive force in disciplining a student or for any act of negligence that results in bodily injury to a student. This was the interpretation adopted by the court of civil appeals. The individual defendants, on the other hand, urge a much narrower interpretation of the last clause. They contend that an employee may be liable only where he uses excessive force or is negligent in disciplining students which results in bodily injury to such students.

We conclude that the Legislature intended in the last clause of subdivision (b) to limit the liability of professional school employees to certain acts incident to the disciplining of students because this is the only manner in which section 21.912 can reasonably be interpreted as a whole. In determining legislative intent, we must look to the entire statute, not just to any one phrase, clause, or sentence of that statute. Further, one provision will not be given a meaning out of harmony or inconsistent with other provisions, although it might be susceptible of such a construction if standing alone. See Ex parte Roloff, 510 S.W.2d 913 (Tex.1974); Black v. American Bankers Insurance Co., 478 S.W.2d 434 (Tex.1972); Francis v. International Service Insurance Co., 533 S.W.2d 408 (Tex.Civ.App.—Texarkana), aff’d, 546 S.W.2d 57 (Tex.1976).

In the statute before us, subdivisions (b) and (c) of section 21.912 contain the provisions relating to liability and must be read together in order to ascertain what the Legislature meant in the last clause of subdivision (b). An interpretation that the last clause of subdivision (b) subjects a professional school employee to liability for any act of negligence that results in bodily injury to a student is untenable when read in light of subdivision (c).

Section 21.912(c) states that “[tjhis section is not applicable to the operation, use, or maintenance of a motor vehicle.” By this language, the immunity granted to professional school employees by section 21.-912(b) is not extended to acts incident to the operation, use, or maintenance of motor vehicles. Therefore, a professional school employee may be personally liable for certain negligent acts involving motor vehicles.

If the interpretation of subdivision (b) urged by Bernhard were followed, then subdivision (c) would be meaningless since liability for the negligent operation of a motor vehicle would necessarily be covered by the broader provisions of subdivision (b). We must give full effect to subdivision (e), however, because it is well established that every word in a statute is presumed to have been used for a purpose, Jessen Associates, Inc. v. Bullock, 531 S.W.2d 593 (Tex.1975); Perkins v. State, 367 S.W.2d 140 (Tex.1963), and that the Legislature did not intend to do a useless thing by putting a meaningless provision in a statute. Duson v. Poage, 318 S.W.2d 89 (Tex.Civ.App.—Houston 1958, writ ref’d n. r. e.). Therefore, the effect of subdivision (c) is to negate a broad interpretation of subdivision (b) when the two provisions are construed together.

We hold Section 21.912(b) of the Texas Education Code to mean that a professional school employee is not personally liable for acts done within the scope of employment, and which involve the exercise of judgment or discretion, except in circumstances where disciplining a student, the employee uses excessive force or his negligence results in bodily injury to the student.

As there were no issues in this case concerning the punishment of Bernhard, we hold that the trial court was correct in granting the individual defendants’ motion for summary judgment. See Mitchell v. Baker Hotel, 528 S.W.2d 577 (Tex.1975); Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970); Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972).

Accordingly, the judgment of the court of civil appeals is reversed and that of the trial court affirmed.

SAM D. JOHNSON, J., writes dissenting opinion in which POPE, J., joins.

SAM D. JOHNSON, Justice,

dissenting.

This dissent is respectfully submitted.

The majority has interpreted Section 21.-912(b) of the Texas Education Code in a manner which effectively grants immunity to professional school employees for acts of negligence that result in bodily harm to students. This interpretation is clearly contrary to the legislative intent and prevailing legal authority.

A statute should be construed to give effect to the legislative intent. Minton v. Frank, 545 S.W.2d 442 (Tex.1976); Jones v. Del Andersen and Associates, 539 S.W.2d 348 (Tex.1975). Where the wording of a statute is ambiguous or leaves the meaning obscure, the courts must resort to the legislative history to resolve the ambiguity. Texas & N. O. R. Co. v. Railroad Commission, 145 Tex. 541, 200 S.W.2d 626 (1947); Austin Road Company v. Evans, 499 S.W.2d 194 (Tex.Civ.App.—Fort Worth 1973, writ ref’d n. r. e.). In the instant case the majority notes that the language utilized in Section 21.912(b) is ambiguous. Section 21.-912(b) provides:

“No professional employee of any school district within this state shall be personally liable for any act incident to or within the scope of the duties of his position of employment, and which act involves the exercise of judgment or discretion on the part of the employee, except in circumstances where professional employees use excessive force in the discipline of students or negligence resulting in bodily injury to students.” [Emphasis added.]

As noted by the majority opinion, the language in the last clause of subsection (b) is ambiguous in its use of the term “negligence.” Bernhard argues that this clause means that professional school employees may be personally liable where their negligence results in bodily injury to students. The individual defendants, however, argue that the clause means that professional school employees are subject to personal liability only when they use excessive force or negligence in the punishment of students which results in bodily injury to a student.

In order to resolve this ambiguity, this court is required to determine the legislative intent. The legislative history of Section 21.912 is explicit in conveying the intent of the Legislature. In its committee report to the House of Representatives, the Committee on Judiciary submitted a “bill analysis” which provided the following background statement or statement of purpose of the bill, which was enacted and codified as Section 21.912:

“School employees performing certain duties may be individually liable for certain actions. As there are often no specific guidelines for their duties, their responsibilities are not clearly defined.
“This bill would allow Boards of Trustees of independent schools to set school standards and also exempt these persons from individual liability for acts within the scope of their duties except for individual negligence.” [Emphasis added.]

This “bill analysis” further summarized each subsection of Section 21.912, analyzing Section 21.912(b) as follows:

“No employee shall be personally liable for Acts incident to or within the scope of their duties of employment, and which act involves the exercise of judgment or discretion on the part of the employee, except where the employee uses excessive force or is negligent.” [Emphasis added.]

This statement in the legislative history clearly demonstrates that the personal liability exemption extended by Section 21.-912(b) does not extend to negligent actions of professional school employees. Professional school employees remain liable for their negligent conduct which results in bodily injury to a student.

In effect, this statute merely codifies the prevailing authority with respect to liability of professional school employees for their negligence. Wesley v. Page, 514 S.W.2d 697 (Ky.1974); Copley v. Board of Educa tion, 466 S.W.2d 952 (Ky.1971); Station v. Traveler’s Insurance Co., 292 So.2d 289 (La.Ct.App.1974), 32 A.L.R.2d 1163 (1953). See also E. Bolmeier, Teachers’ Legal Rights, Restraints and Liabilities § 8 (1971); Seitz, Legal Responsibility Under Tort Law of School Personnel and School Districts as Regards Negligent Conduct Toward Pupils, 15 Hastings L. J. 495 (1964); 78 C.J.S. Schools & School Districts § 238. At least one Texas case has considered this point and ruled in accordance with the prevailing law. In Sewell v. London, 371 S.W.2d 426 (Tex.Civ.App.—Texarkana 1963, no writ), the court was concerned with a student in a vocational training program who was injured while operating a power saw. The student alleged that the power saw was defective, that he was given improper supervision in its use, and that the teacher did not take the power saw out of operation until the alleged defects were corrected. The teacher was sued in his individual capacity and no claim was asserted against the school district. The trial court granted the teacher’s motion for summary judgment, but the court of civil appeals reversed and remanded on the basis that fact issues were raised by the evidence concerning the alleged negligence of the teacher. Consistent with the majority of states, the court of civil appeals’ decision indicated that professional school employees could be held personally liable for their negligent acts which resulted in bodily injury to students.

The individual defendants did not establish as a matter of law that they were immune from liability under the doctrine of governmental immunity. The judgment of the court of civil appeals should therefore be affirmed.

POPE, J., joins in this dissent.

      .Tex.Rev.Civ.Stat.Ann. art. 6252-19, § 3 (Supp.1976-1977) in pertinent part states:
      “Each unit of government in the state shall be liable for money damages for property damage or personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle and motor-driven equipment, other than motor-driven equipment used in connection with the operation of floodgates or water release equipment by river authorities created under the laws of this state, under circumstances where such officer or employee would be personally liable to the claimant in accordance with the law of this state, or death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state. . . . ”

      . This approach seems especially appropriate with regard to section 19A since it was a significant concession by the proponents of the Tort Claims Act in return for the support of the Act by school authorities. See Greenhill & Murto, Governmental Immunity, 49 Texas L.Rev. 462, 468 (1971). Further, the abolition of section 19A was considered by the 63rd Legislature in 1973 and rejected when it failed to enact House Bill No. 441, section 9 of which called for the repeal of Section 19A of the Tort Claims Act.

      . The School District was authorized to purchase liability insurance under the provisions of the Tort Claims Act. Tex.Rev.Civ.Stat.Ann. art. 6252-19, § 9 (1970) provides in pertinent part:
      “[A]U units of government are hereby expressly authorized to purchase policies of insurance providing protection for such units of government, their officers, agents and employees against claims brought under the provisions of this Act . . .

      . In 1973, the 63rd Legislature also considered this question in House Bill No. 441. Section 3 of that unsuccessful bill sought to amend Section 9 of the Tort Claims Act by expressly waiving governmental immunity to the extent of the risk covered by the liability insurance purchased and to the extent of the limits of the policy’s coverage. Apparently, one of the only examples where the Legislature has expressly waived governmental immunity because of the purchase of liability insurance is found in the Texas Education Code where it states that state institutions of higher education that operate nuclear reactors may purchase liability insurance up to the amount of $250,000 and the insurer may not invoke the defense of governmental immunity. Tex.Educ.Code Ann. § 51.-901 (1972).

      . The language used in section 21.912(c) is similar to that used in the Texas Tort Claims Act. Section 19A of that Act renders school districts liable for the negligence of their employees in the operation of motor vehicles. Likewise, an employee could be personally liable for his negligence arising from the same circumstances.


author: PER CURIAM.

text:
    In the Matter of D. W. M.
    No. B-7183.
    Supreme Court of Texas.
    March 1, 1978.
    Daniel, Tarver & Secrest, Jerry Secrest, Temple, for petitioner.
    Don S. Caldwell, Jr., Dist. Atty., Richard W. White, Asst. Dist. Atty., James L. Bradley and L. L. Geren, Groesbeck, for respondent.
   PER CURIAM.

This case involves an order of a juvenile court waiving its jurisdiction and transferring a juvenile to a district court for criminal proceedings. At issue is whether the juvenile court had jurisdiction to consider discretionary transfer where the record shows that the juvenile was not served with a summons to the hearing.

D.W.M. was alleged to have participated in the murder of Chester Brooks and the burglary of his store on January 17,1977, in Limestone County, Texas. At the time of the commission of the alleged offenses, D.W.M. was sixteen years old. Pursuant to Section 54.02 of the Texas Family Code Ann. (1975), the State requested the Juvenile Court of Limestone County to waive its jurisdiction of the case and to order the transfer of the juvenile to the 77th Judicial District Court of that county for criminal proceedings. The record does not show that D.W.M. was served with a summons to the transfer hearing.

The hearing in the juvenile court was held on March 11, 1977. D.W.M., his parents, and his attorney were present. At the commencement of the hearing, D.W.M.’s attorney announced ready; none of the parties present objected to the fact that no summons had been served upon D.W.M. At the conclusion of the hearing, the juvenile court waived its jurisdiction and ordered that the juvenile be transferred to district court for adult criminal proceedings. In doing so, the juvenile court found, among other things, that:

“D.W.M. is of sufficient sophistication and maturity to have intelligently, knowingly, and voluntarily waived all constitutional and statutory rights heretofore waived by said D.W.M., and to have aided in the preparation of his defense. . .”

The court in its order further found that:

“The social evaluation and psychiatric study indicate D.W.M. is mature and sophisticated enough to aid in his defense and to be treated as an adult.”

Based on the above facts, the court of civil appeals affirmed, holding that the juvenile had waived the requirement that a summons be served upon him. 556 S.W.2d 390. This holding conflicts with Section 53.06(e) of the Texas Family Code Ann. (1975), and we grant the application for writ of error pursuant to Rule 483 of the Texas Rules of Civil Procedure.

Juvenile transfer proceedings, in general, are governed by section 54.02 of the Family Code. It states, among other things, that the petition and notice requirements of sections 53.04, 53.05, 53.06, and 53.07 of the Family Code must be satisfied; further, it requires that the summons state that the purpose of the hearing is to consider discretionary transfer to criminal court. Tex. Family Code Ann. § 54.02(b) (1975). Failure to comply with section 54.02(b) will deprive the juvenile court of jurisdiction to consider discretionary transfer. In re T.T.W., 532 S.W.2d 418 (Tex.Civ.App.—Texarkana 1976, no writ); In re K.W.S., 521 S.W.2d 890 (Tex.Civ.App.—Beaumont 1975, no writ). See generally In re J.R.C., 551 S.W.2d 748 (Tex.Civ.App.—Texarkana 1977, writ ref’d n.r.e.); In re P.B.C., 538 S.W.2d 448 (Tex.Civ.App.—El Paso 1976, no writ).

Section 53.06 of the Family Code pertains to the citation of parties participating in juvenile proceedings. Under that section, a juvenile court must issue a summons to the following parties to the proceedings: (1) the juvenile named in the petition; (2) his parents or guardian; (3) his guardian ad litem; and (4) any other person the court deems to be a necessary party to the proceeding. Additionally, a copy of a petition setting out the alleged conduct of the juvenile must accompany the summons.

Citation may be waived by all of the parties to the proceedings with the exception of the juvenile. Section 53.06(e) states in clear and unambiguous terms that “[a] party, other than the child, may waive service of summons by written stipulation or by voluntary appearance at the hearing.” [Emphasis added]. This language reflects the common law rule that a minor is without legal capacity under the law to waive service of summons, Sprague v. Haines, 68 Tex. 215, 4 S.W. 371 (1887); DeProy v. Prograkis, 269 S.W. 78 (Tex.Comm’n App. 1925, holding approved); Morris v. Drescher, 123 S.W.2d 959 (Tex.Civ.App.—Waco 1938, writ ref’d); nor can anyone waive it for him. Wright v. Jones, 52 S.W.2d 247 (Tex.Comm’n App.1932, holding approved); Casanova v. State, 489 S.W.2d 727 (San Antonio 1972), rev’d per curiam, 494 S.W.2d 812 (Tex.1973). We hold that a juvenile must be served with summons and that it must affirmatively appear of record.

In the instant case, the court of civil appeals held that service of summons was waived because the juvenile voluntarily appeared, was found to be mature and intelligent enough to waive any statutory rights given to him, and failed to object to the lack of summons. Such a holding constitutes error in view of our interpretation of section 53.06(e) that a juvenile cannot waive service of summons. In the absence of a summons to the juvenile, the juvenile court did not acquire jurisdiction to consider discretionary transfer.

Pursuant to Rule 483 of the Texas Rules of Civil Procedure, we grant the writ of error and, without hearing oral argument, reverse the judgments of the juvenile court and the court of civil appeals. The cause is remanded to the juvenile court for further proceedings consistent with this opinion.

      . Tex.Family Code Ann. 53.06 (1975) provides:
      “(a) The juvenile court shall direct issuance of a summons to:
      (1) the child named in the petition;
      (2) the child’s parent, guardian, or custodian;
      (3) the child’s guardian ad litem; and
      (4) any other person who appears to the court to be a proper or necessary party to the proceeding.
      “(b) The summons must require the persons served to appear before the court at the time set to answer the allegations of the petition. A copy of the petition must accompany the summons.
      “(c) The court may endorse on the summons an order directing the parent, guardian, or custodian of the child to appear personally at the hearing and directing the person having the physical custody or control of the child to bring the child to the hearing. A person who violates an order entered under this subsection may be proceeded against under Section 54.07 of this code.
      “(d) If it appears from an affidavit filed or from sworn testimony before the court that immediate detention of the child is warranted under Section 53.02(b) of this code, the court may endorse on the summons an order that a law-enforcement officer shall serve the summons and shall immediately take the child into custody and bring him before the court.
      “(e) A party, other than the child, may waive service of summons by written stipulation or by voluntary appearance at the hearing.”


author: W. C. DAVIS, Judge.

text:
    Charles William SHAFFER, Appellant, v. The STATE of Texas, Appellee.
    No. 53945.
    Court of Criminal Appeals of Texas. Panel No. 1.
    Jan. 25, 1978.
    Rehearing En Banc Denied March 29, 1978.

      Leonard C. Kahn and Donald F. Maier-son, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and Michol O’Connor, Asst. Dist. Attys., Houston, for the State.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction of carrying a handgun, V.T.C.A., Penal Code, Sec. 46.02(a). Trial was to the court and punishment was assessed at a fine of $125.00 and thirty days in jail, which was probated.

On September 24, 1975, at approximately 3:00 a. m., Officer Sanduske of the South-side Police observed the appellant driving his taxicab about 5-10 miles per hour in the 4000 block of Bellaire Boulevard. This is a commercial area. All businesses were closed. There were no pedestrians; there was no other traffic. Appellant stopped mid-block, drove slowly to the intersection of Bellaire and Stella Link, where he stopped at a green light, turned and continued in this manner. The officer testified that he stopped the appellant because he suspected him of being either ill or drunk, due to the slow speed in which he was traveling, and for no other reason. After the initial stop, a subsequent search of the cab led to the discovery of a pistol under the front seat.

In appellant’s sole ground of error, he urges that the trial court erred in overruling his motion to suppress and trial objection to the admission of the handgun into evidence. The case of Armstrong v. State, 550 S.W.2d 25 (Tex.Cr.App.1977) contains a thorough discussion of the applicable law, here summarized.

A police officer may briefly stop a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information. An occupant of an automobile is just as subject to a brief detention as is a pedestrian. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Circumstances short of probable cause for an arrest may justify temporary detention for the purpose of investigation since an investigation is considered to be a lesser intrusion upon the personal security of the individual. Leighton v. State, 544 S.W.2d 394 (Tex.Cr.App.1976). The totality of the circumstances surrounding the incident are looked to in determining whether the police conduct may be reasonable. State v. Hocker, 113 Ariz. 450, 556 P.2d 784 (1976). In order to justify the intrusion, the law enforcement officer must have specific articu-lable facts which, in light of his experience and personal knowledge, together with other inferences from those facts, would reasonably warrant the intrusion of the freedom of the citizen detained for further investigation. U. S. v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). Thus, even in the absence of bad faith, detention based “on a mere hunch” is illegal. There must be a reasonable suspicion by the officer that some activity out of the ordinary is occurring or had occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to crime. Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful. Irwin v. Superior Court of Los Angeles County, 1 Cal.3d 423, 82 Cal.Rptr. 484, 462 P.2d 12 (1969).

In the instant case, Officer San-duske had suspicion but not an articulable fact. Appellant had violated no traffic law nor committed a crime in the officer’s presence. McDougald v. State, 547 S.W.2d 40 (Tex.Cr.App.1977). The officer had not observed erratic driving after being informed of a prior traffic violation. Greer v. State, 544 S.W.2d 125 (Tex.Cr.App.1976). This was not a high crime area. Amorella v. State, 554 S.W.2d 700 (Tex.Cr.App.1977). Nor was this initial stop pursuant to a routine check of equipment and drivers’ licenses authorized by V.A.C.S., Art. 6687b, Sec. 13. Tardiff v. State, 548 S.W.2d 380 (Tex.Cr.App.1977); cf. Faulkner v. State, 549 S.W.2d 1 (Tex.Cr.App.1977); Fatemi v. State, 558 S.W.2d 463 (November 9, 1977). As the initial stop was without probable cause, the handgun obtained as a result was inadmissible. Wong Sun v. U. S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972).

The judgment is reversed and the cause remanded.


author: DALLY, Judge.

text:
    Robert Lee KENT, Appellant, v. The STATE of Texas, Appellee.
    No. 57144.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 1, 1978.
    Rehearing En Banc Denied March 29, 1978.

      Philip S. Greene, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Calvin A. Hartmann and Gary DiBella, Asst. Dist. Attys., Houston, for the State.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

DALLY, Judge.

This is an appeal from an order revoking probation.

On October 3, 1975, appellant waived a jury trial and pled nolo contendere to the offense of knowingly and intentionally possessing cocaine, a controlled substance. Punishment was assessed at imprisonment for 5 years, but the imposition of sentence was suspended and appellant was placed on probation. A condition of his probation was that appellant commit no offense against the laws of this State. A motion to revoke probation was filed which alleged that on July 27, 1976, appellant had committed the offense of possession of cocaine, a controlled substance. After hearing evidence, the court found that appellant had violated the condition of his probation as alleged, revoked probation, and pronounced sentence on February 10, 1977.

The appellant’s only contention is that the amount of cocaine seized was insufficient to sustain a finding of criminal possession, therefore, the court abused its discretion in revoking probation. The weight of the cocaine was determined by a chemist to be 3.2 milligrams.

Appellant relies principally on Coleman v. State, 545 S.W.2d 831 (Tex.Cr.App.1977); Pelham v. State, 164 Tex.Cr.R. 226, 298 S.W.2d 171 (1957); Greer v. State, 163 Tex.Cr.R. 377, 292 S.W.2d 122 (1956).

In Coleman it was said at page 835:

“The judgment should be reversed for yet another reason. The chemist testified that it is possible to weigh V28o,ooo of an ounce of cocaine. The trace amount that he recovered from the small vial was un-weighable because of difficulty in removing it from the vial. However, he felt that the actual amount in the vial was no more than 5/28,ooo of an ounce and maybe as little as Vz&.m of an ounce. ‘It would be a harsh rule, indeed, that would charge appellant with knowingly possessing that which required a microscope to identify.’ Pelham v. State, 164 Tex.Cr.R. 226, 298 S.W.2d 171, 173 (1957).
“We decline now to adopt such a rule.”

In Tomlin v. State, 170 Tex.Cr.R. 108, 338 S.W.2d 735 (Tex.Cr.App.1960), where the total amount of heroin possessed was 1700 micrograms, this Court affirmed a conviction for possession of heroin and said:

“Crawford, chemist and toxicologist for the City of Houston, who received the sealed envelope containing these articles, testified that there was a residue which was visible in the spoon, eye-dropper and needle ‘and little particles of powder on the cellophane paper submitted which were extracted and analyzed’; that his analysis revealed that the spoon contained 157 micrograms of heroin; the eye-dropper and needle together contained 810 micrograms of heroin, and the fine particles of powder on the paper contained 802 micrograms of heroin, a total of 1700 micrograms equivalent to one capsule of 3% heroin.
“The heroin, the chemist testified, was utilized or destroyed in the analysis.
“We overrule the contention that the amount of heroin was insufficient under Pelham v. State, 164 Tex.Cr.R. 226, 298 S.W.2d 171, and Greer v. State, 163 Tex.Cr.R. 377, 292 S.W.2d 122.”

1700 micrograms converts to .00005996 of an ounce; V28,ooo converts to .00003571 of an ounce; 3.2 milligrams converts to .00011286 of an ounce. We hold that 3.2 milligrams of cocaine, approximately twice the weight of the heroin in Tomlin v. State, supra, is a sufficient amount of cocaine to sustain a finding that the appellant committed the offense of possessing cocaine.

The court did not abuse its discretion in revoking probation. The judgment is affirmed.


author: DOUGLAS, Judge. PHILLIPS, Judge.

text:
    Anderson HUGHES, Appellant, v. The STATE of Texas, Appellee.
    No. 51827.
    Court of Criminal Appeals of Texas, En Banc.
    March 15, 1978.

      Larry Miller, Dallas, for appellant.
    Henry M. Wade, Dist. Atty. and W. T. Westmoreland, Jr., Douglas D. Mulder, Stephen Tokoly and Les Eubanks, Asst. Dist. Attys., Dallas, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of capital murder wherein the punishment was assessed at death. See V.T.C.A., Penal Code, Section 19.03, and Article 37.071, V.A.C.C.P.

During the early morning hours of September 23, 1974, appellant drove into a service station in Mesquite, a suburb of Dallas, in a truck which he had previously stolen. The station was closed for the night and, when appellant saw a Buick automobile parked inside, he broke the glass out of a window and climbed through it into the station. The keys were in the ignition of the automobile. Appellant drove the vehicle out and started around to the front of the station when a marked police car drove in and blocked his path.

A uniformed officer got out of the police car and ordered appellant to exit the Buick. As appellant got out he had in his hand a .32 caliber pistol which he pointed at the officer. When the officer saw this he drew his revolver and fired a shot at appellant. Appellant started shooting and the officer fell to his knees. Appellant then obtained a 12 gauge shotgun from the stolen truck and shot the officer in the right side and killed him.

Appellant left in the Buick. After disposing of the pistol, shotgun, shotgun shells and his boots, he drove to Parkland Hospital where he entered the emergency room and advised the attendant that he had been shot. Shell fragments were removed from his thigh.

Appellant was thereafter arrested at the hospital and taken to the Mesquite police station where he gave a written confession after having been warned of his rights by a magistrate. In his confession he stated that he had disposed of the items mentioned above by throwing them in Blue Lake. Upon being taken to the lake, he admitted the falsity of that portion of his statement and directed the officers to a vacant house where the officers recovered the items sought.

Appellant does not challenge the sufficiency of the evidence. He first contends that the appeal should be abated because the trial court erroneously pronounced sentence. The identical contention was rejected in Hovila v. State, 532 S.W.2d 293, 297 (Tex.Cr.App.1976), wherein it was observed that “the provisions of Article 37.-071, supra, referring to ‘sentence to death,’ etc., refers [sic] to the assessment of punishment and not to a formal sentence, and the provisions of Article 42.04, supra [V.A.C.C. P.], still control.” As in Hovila, the trial court was apparently misled by the awkward wording of Article 37.071, supra, but it apparently recognized that another sentence setting the execution date would be required. Accordingly, there is no reason to abate the appeal because the court pronounced sentence. It will be regarded as surplusage.

Appellant next contends that Article 1257, V.A.P.C., violated the Eighth and Fourteenth Amendments to the United States Constitution. Since this article was repealed effective January 1,1974, and was not even in existence at the time of the commission of the instant offense, it is not relevant to this case.

Appellant contends that this State’s new statutory scheme for capital murder, including the possible infliction of the death penalty, violates his constitutional rights to due process and to be free from cruel and unusual punishment. He further contends that imposition of the death penalty under any circumstances offends the Eighth and Fourteenth Amendments. The same contentions were rejected by this Court in Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975), and by the United States Supreme Court in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). See also Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

Appellant next contends that twenty-four veniremen were excused in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

In Hovila v. State, supra, we held that the holding of Witherspoon was still viable in light of the new statutory scheme providing for the imposition of the death penalty adopted after the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976), we held that it was unnecessary to consider the Wither-spoon question where the prospective juror was disqualified under V.T.C.A., Penal Code, Section 12.31(b). See also Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977).

Section 12.31(b) provides:

“Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.”

Prospective jurors Margaret Houston and Ida Barton expressed opposition to the death penalty. When asked by the court whether such opposition would affect her deliberations on the three fact issues submitted to the jury at the punishment stage, Houston stated that her beliefs could affect her deliberations on the issues because she “would not want to send a man to death. . . .” Barton stated that her feelings would give her “a lot of problems” in answering the special issues objectively and that those feelings would influence her answers to the questions submitted to her.

It is clear that Houston and Barton were properly excused under Section 12.31(b) and that we need not determine whether their statements also disqualified them under the Witherspoon doctrine.

Neither the court nor the prosecutor questioned prospective juror Norma McClay with regard to whether she was unequivocally opposed to the death penalty in all circumstances. The court observed that she had expressed opposition to the death penalty in a questionnaire and inquired whether such opposition would affect her deliberations upon the fact issues. She responded that she would answer the three questions without regard to the consequences of such action, but then vacillated and stated that she did not know whether her deliberations would be affected by her beliefs. When the court stated that she had to determine whether her deliberations would or would not be affected, she equivocated and finally stated that she did not know.

Prospective juror Virginia Ball stated that she believed in the death penalty only in certain cases. She expressed doubt that she could answer special issue number two affirmatively because she did not think she could predict a defendant’s future conduct. She then stated that she would have to consider the issue carefully before answering and that she “might” give an affirmative answer under certain circumstances. The court then told her that it required a definite response. After more equivocation, she stated that she did not know whether the mandatory penalty of death in the event of a “yes” answer to each of the special issues would affect her deliberations upon special issue number two.

Upon interrogation by the court, prospective juror Irene Hawk stated that she believed in the death penalty “in some cases,” but then stated that she did not believe she could answer each special issue “yes.” She declared that she could not answer the issues affirmatively without difficulty even though the evidence dictated affirmative answers.

Section 12.31(b) does not disqualify prospective jurors who would find it difficult to impose the death penalty. But this provision does disqualify those prospective jurors who cannot state under oath that the mandatory penalty of death or life imprisonment will not affect their deliberations on any issue of fact and, thus, could not be fair and impartial jurors. None of the three prospective jurors in question— McClay, Ball and Hawk—could state that' the mandatory penalty would not affect her deliberations upon the fact issues. While it is clear that the answers of these prospective jurors would not have disqualified them under the holding in Witherspoon, nevertheless their answers disqualified them under Section 12.31(b), without the necessity of considering the Witherspoon question. Moore v. State, supra; Burns v. State, supra.

Prospective jurors Albert Baysinger, Gus Reese, Jeremiah Sherman, Ethelene Shaw, Ila Mays, Beverly Thomas, Alan Hurley, Oliver Graves, Harvey Nix, Ruth McKelvey, Annie Kelly, Beulah Darnell and Martha Sloan all clearly indicated that their deliberations on the special fact issues would be affected because the imposition of the death penalty was dependent on their answers to such issues. Accordingly, these prospective jurors were disqualified under Section 12.31(b).

Prospective juror Lawrence Shaw stated his opposition to the death penalty and, when asked whether he could vote for this penalty under any circumstances, he replied that he could not. He then stated that “there could not be an iota of doubt” before he could answer each of the three fact issues in the affirmative. The court inquired whether this meant that he held the State to a greater standard of proof than the beyond a reasonable doubt standard, and he responded affirmatively. The court ruled that Shaw was disqualified and excused him.

It is clear from the record that Shaw was biased or prejudiced against a phase of the law upon which the State was entitled to rely for punishment, and, thus, was subject to a challenge for cause under Article 35.-16(b)(3), V.A.C.C.P. Generally, the court should not excuse a prospective juror without challenge unless he is absolutely disqualified under Article 35.19, V.A.C.C.P., because such challenge could be waived by the State. See Article 35.16(a), V.A.C.C.P. In the present case, however, appellant did not object on the ground that there was no challenge for cause, nor does he urge this ground on appeal. Hence, no error is presented in this connection. Moore v. State, supra.

Appellant’s complaint on appeal regarding prospective juror Lawrence Shaw is directed to the Witherspoon issue. This complaint is without merit because the record reflects that Shaw was disqualified under Section 12.31(b) and under Witherspoon.

Prospective juror Zonetta Beachum did not believe in the death penalty and would not vote for this penalty under any circumstances. Thus, she was excused in compliance with Witherspoon.

Prospective jurors Rosa Gordon, Rebekah Holmes, Blanche Rivers and Ardella Campbell were excused without objection. Failure to object to the improper exclusion of veniremen waives that right and such exclusion cannot be considered on appeal. Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App.1976), cert. denied 430 U.S. 959, 97 S.Ct. 1610, 51 L.Ed.2d 811 (1977); Hovila v. State, 562 S.W.2d 243 (No. 56,989, decided February 8, 1978).

Appellant next complains that the trial court improperly restricted his voir dire examination of the jury and that consequently he could not intelligently exercise his right to make peremptory challenges. His argument centers on the court’s refusal to allow him to ascertain several prospective jurors’ attitudes and feelings about psychiatric opinion testimony.

Counsel may interrogate members of the jury panel in order to intelligently exercise his peremptory challenges and to establish which prospective jurors should be removed for cause. Abron v. State, 523 S.W.2d 405 (Tex.Cr.App.1975); Mathis v. State, 167 Tex.Cr.R. 627, 322 S.W.2d 629 (1959). The trial court in its sound discretion, however, can and should control the examination of the venire. Abron v. State, supra; Hernandez v. State, 508 S.W.2d 853 (Tex.Cr.App.1974). Therefore, although the areas which counsel may properly explore in order to exercise his peremptory challenges are broad and cannot be unnecessarily limited [see Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974)], questions asked in an improper form may be disallowed. Abron v. State, supra; Hernandez v. State, supra.

In the present case, the trial court appointed two psychiatrists to examine appellant prior to trial. Anticipating that the psychiatrists would testify for the State at the punishment phase of the trial, defense counsel sought to question several prospective jurors with regard to “how they would feel concerning psychiatric testimony” and “if they heard certain psychiatric testimony, would that influence them in any way.” This constituted an improper attempt to require the prospective jurors to commit themselves as to how they would pass upon the credibility of the psychiatric witnesses prior to trial. Cf. Hunter v. State, 481 S.W.2d 137 (Tex.Cr.App.1972). Thus, the question was improper and the court properly disallowed it.

Appellant contends that the trial court erred in ruling that his confession was voluntary. He argues that the State failed to refute evidence of coercion.

In compliance with the requirements of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and Article 38.22, V.A.C.C.P., the court held a hearing outside the presence of the jury to determine whether the confession was voluntary. Officer Dale Eckman testified that he went to Parkland Hospital at approximately 6:00 a. m. on September 23, 1974, to take appellant into custody; that appellant remained in his custody from that time until appellant signed a written confession; that four bullet fragments were surgically removed from appellant’s right leg at 9:40 a. m.; that forty-five minutes later he (Eckman) left the hospital with appellant and Detective Bullard; that no one provided him with any medication for appellant; that appellant was limping and was in pain only when he walked; that they arrived at the police station at 11:00 a. m.; that appellant was taken immediately before a magistrate; that the magistrate advised appellant of his rights; that appellant then agreed to give Bullard and him (Eckman) a written statement in which appellant admitted shooting Officer Williams; that he (Eckman) began printing the statement at 11:10 a. m. and finished it at 12:20 p. m.; that two police department employees came into the interview room and that appellant voluntarily signed the statement in their presence; that the statement was then typed and signed by appellant at 1:10 p. m.; that appellant was later given lunch; and that no officer threatened, struck, or in other manner coerced appellant.

Dr. Martin L. Schneider testified that he removed four bullet fragments from appellant’s leg in the emergency room of the hospital; that the bullet had gone through a large part of leg muscle, but that there was no damage to any nerve or artery; that appellant was not given any type of medication that would alter his state of consciousness or impair his mental abilities; that appellant was given a local anesthetic; that the wound was no more than one and one-half inches deep; that the entire operation had a duration of fifteen minutes; that when the operation was finished appellant was given penicillin and antibiotics but no pain medication; that the pain associated with this type of wound was not great, but walking on the wounded leg would be painful.

Appellant testified at the hearing for the limited purpose of contesting the voluntariness of his statement. He stated that the gunshot wound caused him extreme pain while he was being interrogated, and that he was deprived of food during this period of time. He further stated that he was threatened and struck on the face and the elbow, and that one officer squeezed a pencil between his fingers.

During cross-examination appellant admitted that neither Officer Eckman nor Officer Bullard had threatened or harmed him. He testified that an unidentified officer had mistreated him, and that such mistreatment, occurred after he gave the confession.

At the Jackson v. Denno hearing, the court is the sole judge of the weight and credibility of the witnesses. He may believe or disbelieve all or any part of any witness’ testimony. Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977); Aranda v. State, 506 S.W.2d 221 (Tex.Cr.App.1974).

The evidence in this case that appellant was threatened and hit after he gave the statement was not pertinent to whether it was voluntary. The evidence that he was in extreme pain while he was being interrogated did raise an issue of fact as to the voluntary nature of the statement. There was ample evidence, however, to support the trial court’s findings of fact and conclusions of law. We conclude that the confession was voluntary and properly admitted in evidence. Myre v. State, supra; McKittrick v. State, 541 S.W.2d 177 (Tex.Cr.App.1976).

Appellant also contends that the court erred in refusing to charge the jury on the voluntariness of the confession. Appellant did not testify before the jury and did not call any witness on the issue of voluntariness. There was no evidence before the jury which raised that issue. Thus, the court did not err in refusing the charge. Myre v. State, supra; Morgan v. State, 502 S.W.2d 722 (Tex.Cr.App.1973).

Appellant complains of the testimony given by the two psychiatrists at the punishment phase of the trial. He argues that their opinions regarding his propensity to commit future acts of violence were improperly admitted because such opinions stated a legal conclusion.

Prior to trial, defense counsel filed two motions in limine requesting an instruction that the prosecutor refrain from asking any questions during either the guilt or punishment phase with regard to whether appellant would probably commit future acts of violence. The stated basis for these motions was that the question whether appellant represents a continuing threat to society was an ultimate issue for the jury and that allowing testimony along these lines would be an invasion of the province of the jury. See Hopkins v. State, Tex.Cr., 480 S.W.2d 212. It appears that the trial court never ruled on these motions.

When Dr. James Grigson was asked at the punishment phase his opinion regarding appellant’s propensity to commit future acts of violence, defense counsel objected on the ground that the question was “in the purview of the jury.” When the same inquiry was posed to Dr. John Holbrook, counsel objected by re-urging the motions in limine. Both objections were overruled.

The contention that the psychiatrists’ opinions stated a legal conclusion is raised for the first time on appeal. It is well-established that the ground of error presented on appeal must comport with the objection raised at trial. Hence, nothing is presented for review. Graham v. State, 546 S.W.2d 605 (Tex.Cr.App.1977); Bouchillon v. State, 540 S.W.2d 319 (Tex.Cr.App.1976).

Finally, appellant contends that Dr. Grig-son improperly referred to an extraneous offense. The record reflects:

“Q. So you didn’t discuss the case with Mr. Mulder as such, trying to find out the alleged facts or any of the background?
“A. No, not that I recall prior to the time of examining Mr. Hughes. I did after the examination primarily since he had stated that he had been requested not to discuss the offense with me. I did want to look up the information related to the offense so his confession was made available to me and other offenses were made available to me with regard to his juvenile record.
“Q. Did you check into any past record, then?
“A. Yes, sir, I did.
“Q. At a later date? Okay. Now, then, when you said that he didn’t express any guilt, what were you referring to, how did you approach this question?
“A. Of course throughout the examination I was attempting to see — he had been in a lot of trouble, burglary—
“MR. HALSEY: Judge, I have to object to unresponsive answers—
“THE COURT: Don’t go into the other offenses.”

The ground of error raised on appeal does not comport with the objection raised at trial. Thus, nothing is presented for review. Graham v. State, supra; Bouchillon v. State, supra. Moreover, there was no objection when the psychiatrist first mentioned appellant’s involvement in other offenses. The improper admission of evidence does not constitute reversible error if the same facts were shown by other evidence to which no objection was addressed. Watson v. State, 582 S.W.2d 619 (Tex.Cr.App.1976); Hayles v. State, 507 S.W.2d 213 (Tex.Cr.App.1974).

No reversible error is shown. The judgment is affirmed.

VOLLERS, J., not participating.

PHILLIPS, Judge.

I respectfully dissent to the majority disposition of appellant’s ground of error alleging a violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). For the purposes of this dissent I adopt the reasoning of Part I of Judge Roberts’ dissent in Shippy v. State, 556 S.W.2d 246 at 257.

ROBERTS, J., joins in this dissent.

      . In Witherspoon, the Supreme Court of the United States stated:
      “Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.” The Court further stated:
      “Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.”
      The Court elaborated in Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969):
      “[i]t is entirely possible that a person who has a ‘fixed opinion against’ or who does not ‘believe in’ capital punishment might nevertheless be perfectly able as a juror to abide by existing law — to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case.”
      And, in Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976), the Court reaffirmed its adherence to the Witherspoon doctrine and held that no death penalty can stand if a single venireman is excluded in violation of that doctrine.


author: DOUGLAS, Judge.

text:
    Asa Lamar WALKER, Appellant, v. The STATE of Texas, Appellee.
    No. 57773.
    Court of Criminal Appeals of Texas, Panel No. 2.
    March 15, 1978.
    Dick DeGuerin, Houston, for appellant.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

DOUGLAS, Judge.

This is a purported appeal from an order revoking probation.

On December 4, 1973, a jury convicted appellant for sale of an obscene book. The court assessed punishment at thirty days in jail and a $1,000.00 fine. Judgment was entered accordingly. Appellant’s original amended motions for new trial were subsequently overruled and sentence was pronounced on January 2, 1974. Notice of appeal was timely given and the appeal was subsequently docketed in this Court as Cause No. 50,289. On December 17, 1975, we affirmed appellant’s conviction. See Walker v. State, 530 S.W.2d 572 (Tex.Cr.App.1975). Our mandate issued on January 5, 1976, and was filed with the clerk of the trial court the following day. After the receipt of the mandate of affirmance, the trial judge attempted to probate the 30 days’ confinement in jail which had been imposed in 1973. Subsequently, the trial judge revoked the probation and it is from the order revoking that probation that appellant now attempts to appeal.

Once the mandate of this Court issued on January 5, 1976, affirming appellant’s conviction, the trial court only acquired jurisdiction to see that the judgment of this Court was carried out. State ex rel. Vance v. Hatten, 508 S.W.2d 625 (Tex.Cr.App.1974). It did not have jurisdiction to suspend the execution of the sentence and place appellant on probation. State ex rel. Vance v. Hatten, supra. Consequently the order which sought to place appellant on probation was a nullity.

The order granting probation is set aside. It is further ordered and directed that the trial court issue a capias for appellant’s arrest and to perform the ministerial act of carrying out the mandate of this Court which issued on January 5, 1976, unless it has already done so.

The purported appeal is dismissed.