author: BROWN, Commissioner.

text:
    Floyd JAMES, Appellant, v. The STATE of Texas, Appellee.
    No. 51759.
    Court of Criminal Appeals of Texas.
    July 7, 1976.

      Paul S. Colley, Henderson, for appellant.
    Donald R. Ross, County Atty., and Davis P. Brown, Asst. County Atty., Henderson, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for burglary of a habitation. Trial was before a jury and appellant was found guilty and his punishment was assessed at twenty (20) years in the Texas Department of Corrections.

In two grounds of error appellant challenges the sufficiency of the evidence corroborating the testimony of an accomplice witness.

The record shows that the home of Mr. and Mrs. Joe Price Gibson was burglarized sometime between the hours of 2:00 p. m. and 4:00 p. m. on January 22, 1975. Mrs. Gibson testified that she returned to the house on Airport Highway near Henderson, Texas at about 4:00 p. m. and noticed that the carport door was open. She said that she looked through the open door and saw that a closet door inside was open and the contents of the closet had been strewn all over the room. She did not enter the house, but went to a neighbor’s home and called the Rusk County Sheriff’s department and her husband. Mr. Gibson testified that he and his wife and the sheriff’s deputy examined the home and determined that a television, a stereo record player and two guns were missing and that other rooms of the house had been ransacked.

John Winn, a neighbor, testified that he passed the Gibson home on his way to work at approximately 3:30 p. m. on the afternoon of the burglary. The Gibson house is situated on a hill some one hundred yards from the Airport Highway and Winn stated that as he drove past he noticed a car parked in the driveway seventy-five to a hundred feet from the house. Winn described the car as a late model “mid-size” Chevrolet, probably the “Chevelle series.” He described the color as “off yellow or off light tan or butterscotch” with either a brown or black top. He stated that the trunk lid of the car was open and that two black males were standing behind the car. One of the men he described as “a very large person” close to six feet three inches in height and much heavier than 160 pounds. Winn could not describe the clothing worn by the two men and could not identify appellant as one of the men, although he did testify that appellant was “that large of a man.” Winn stated that when he passed the house and saw the men he did not think anything unusual had happened.

Noah Carr testified as an accomplice witness and as a party to the crime. He stated that he and appellant met in Longview and drove together in appellant’s car to the house on Airport Highway. Carr described the car as a “tan Chevrolet Chevelle” with a black top. He stated that he entered the house through the carport and that they took a television, a stereo and two guns.

Michael Strong, chief deputy sheriff of Rusk County, testified that he knew appellant and was familiar with the type of car he was driving in January 1975. He described the car as a “butterscotch yellow Chevelle ... in the early ’70’s” with a black top. On cross-examination, Strong was asked if he saw appellant driving that car on January 22,1975 and he replied that he “couldn’t testify even what I drove then.”

None of the stolen property was recovered.

Art. 38.14, Y.A.C.C.P., requires corroborating evidence which tends to connect the defendant with the offense in order to support a conviction based upon accomplice testimony. Such corroboration is insufficient if it merely shows the commission of the offense.

The well-established test of the sufficiency of the corroborating testimony is to eliminate from consideration the evidence of the accomplice witness and then to examine the testimony of other witnesses to ascertain if there is inculpatory evidence which tends to connect the defendant with the commission of the offense. If there is other evidence of an incriminating nature, the corroboration is sufficient; otherwise, it is not. Bentley v. State, 520 S.W.2d 390 (Tex.Cr.App.1975) and cases cited therein.

It is not necessary that the corroboration directly link the accused to the crime or that it be sufficient in itself to establish guilt, Attwood v. State, 509 S.W.2d 342 (Tex.Cr.App.1974); it need only make the accomplice’s testimony more likely than not. Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974).

Eliminating from consideration the testimony of the accomplice Noah Carr, we are left with (1) the testimony of the Gib-sons and the sheriff’s deputy that a burglary was committed on January 22, 1975; (2) the testimony of Winn that he saw two black men and a late model “off yellow or off light tan or butterscotch” Chevelle with a dark top in the driveway of the house on the afternoon of the burglary; (3) Winn’s testimony that appellant is as large a man as one of the men he saw; (4) the testimony of the chief deputy that appellant was driving a butterscotch yellow Chevelle with a black top during the month of January 1975.

In Tompkins v. State, 501 S.W.2d 132 (Tex.Cr.App.1973) the non-accomplice testimony showed that the burglary was committed by “two white males” and that two white males were seen fleeing the scene. A patrolling police officer received a radio report that one of the subjects in the burglary was a “young, tall white male.” He arrested appellant, a young white male, walking on the road less than a mile from the burglary scene and only thirty minutes after the crime. We held that appellant’s proximity to the scene and the fact that he was a young white male were insufficient to corroborate the accomplice’s testimony.

In Nolley v. State, 368 S.W.2d 218 (Tex.Cr.App.1963) a non-accomplice witness testified that the stolen cattle were delivered to him by the accomplice in a “red, bob-tailed half-ton Ford truck” and that he obtained the license number of the truck. Another witness testified that prior to the date of the cattle theft appellant purchased a “1951 dual-wheel, ton and a half, stake body, cattle frame Ford truck.” A police officer testified that he found dual-wheel tracks in the pasture where the cattle were loaded. However, none of the witnesses could place appellant near the scene of the theft or in possession of the cattle, nor was the truck used to deliver the cattle identified as the same truck owned by appellant. We held the evidence insufficient to corroborate the accomplice’s testimony.

In the present case there is no showing that appellant owned any type of car at the time of the burglary other than the deputy’s statement that he was driving a butterscotch yellow Chevelle with a black top during the month of January. The witnesses were not asked to ideñtify, by photograph or otherwise, a car that could be positively linked to appellant by ownership or possession as the same car used in the burglary. Furthermore, the witness Winn was not able to identify appellant as one of the men he saw except for the fact that he is black and is “as large a man” as one of those .he saw.

We hold the evidence is insufficient to corroborate the accomplice’s testimony.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


source: Caselaw Access Project

author: ROBERTS, Judge.

license: Public Domain

text:
    Ex parte Elliott Wayne White.
    No. 52332.
    Court of Criminal Appeals of Texas.
    July 7, 1976.
    Elliott Wayne White, pro se.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

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

Petitioner’s sole contention in this application is that a prior conviction was improperly used on two occasions for enhancing petitioner’s punishment. See Art. 62, V.A. P.C. (Old Penal Code), and V.T.C.A. (Penal Code), Sec. 12.42(a).

The trial court, after considering petitioner’s application, made the following findings of fact:

(1) On November 23, 1970, petitioner entered a plea of guilty to the offense of felony theft in the 183rd District Court of Harris County in Cause No. 150,168, and was assessed a two-year term of imprisonment.
(2) Petitioner was again convicted of theft in Cause No. 186,106 in the 178th District Court of Harris County and assessed a 10-year mandatory term of confinement pursuant to Art. 62, V.A.P.C., on August 24,1973. The prior conviction alleged for en- . hancement under Art. 62, V.A.P.C., in Cause No. 186,106, was the prior 1970 conviction for theft in Cause No. 150,168.
(3) On July 22, 1974, petitioner was indicted for the offense of burglary— motor vehicle in Cause No. 215,574, with both of petitioner’s prior convictions in Cause Nos. 150,168 and 186,-106, alleged for enhancement under Sec. 12.42(d), V.T.C.A.
(4) Subsequently, the state dismissed the second enhancement allegation, i. e., Cause No. 186,106, and the petitioner entered a plea of guilty to the burglary of a motor vehicle charge with Cause No. 150,168, once again being retained in the indictment for enhancement purposes under Sec. 12-42(a), V.T.C.A., Penal Code.
(5) On April 24, 1975, the trial court accepted petitioner’s plea in Cause No. 215,574, charging him with the offense of burglary of a motor vehicle, second offender, and assessed his punishment at twelve (12) years’ confinement.

The trial court entered findings of fact and conclusions of law holding that since petitioner had been thus convicted twice as a second offender, his sentence in Cause No. 215,574 was therefore excessive. We agree.

It has long been the rule in this State that prior convictions cannot be used more than once to enhance punishment. Kinney v. State, 45 Tex.Cr.R. 500, 79 S.W. 570 (1904); Gooden v. State, 140 Tex.Cr.R. 351, 145 S.W.2d 179 (1940); Brown v. State, 150 Tex.Cr.R. 386, 196 S.W.2d 819 (1946); Cleveland v. State, 493 S.W.2d 145 (Tex.Cr.App.1973). This rule has been subject to the exception that “the use of a prior conviction to enhance the punishment as a second offender does not preclude the State from again using that conviction to fix the status of an habitual criminal.” Ex Parte Calloway, 151 Tex.Cr.R. 90, 94, 205 S.W.2d 583, 586 (1947); Mayo v. State, 166 Tex.Cr.R. 470, 314 S.W.2d 834 (1957); Head v. State, 419 S.W.2d 375 (Tex.Cr.App.1967).

The prohibition against the multiple use of prior convictions to enhance punishment has been held to be applicable to prosecutions utilizing the provisions of Section 12.-42(c) and 12.42(d) of the New Penal Code. See Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.1975); Shaw v. State, 530 S.W.2d 838 (Tex.Cr.App.1975).

We therefore hold that the State was barred from using the same prior conviction for second offender enhancement under the provisions of Sec. 12.42(a) where said prior conviction had been previously used successfully under Art. 62, V.A.P.C. (Old Code). See Cleveland v. State, supra. Thus, the twelve-year sentence assessed petitioner in Cause No. 215,574 is excessive since the trial court improperly sentenced petitioner as a second-degree felony offender. The State has conceded error as to this point of law.

The State does ask, however, that the case be remanded to the trial court for another sentencing hearing since the original twelve-year sentence was assessed by the court, without intervention of a jury. We agree that the case should be remanded for a new hearing on punishment. See Ex Parte Murillo, 528 S.W.2d 127 (Tex.Cr.App.1975); Ex Parte Hill, 528 S.W.2d 125 (Tex.Cr.App.1975).

IT IS SO ORDERED.

      . In view of the prior conviction alleged in Cause No. 150,168, petitioner was sentenced for a second-degree felony as provided by V.T. C.A., Penal Code, Sec. 12.42(a), even though the primary charge was only a third-degree felony which carried a maximum of ten years’ imprisonment.

      . We see no reason why the rule of Ex Parte Calloway, supra, should not continue to be the law in Texas, and we therefore also hold that the State may use a prior conviction for enhancement under Section 12.42(a), (b), or (c), and later use that conviction for enhancement under Section 12.42(d). See Carvajal v. State, supra.


author: DALLY, Commissioner.

text:
    Ex parte Curtis TOWNSEND.
    No. 52480.
    Court of Criminal Appeals of Texas.
    July 7, 1976.
    Duncan F. Wilson, Austin, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is a post conviction writ of habeas corpus proceeding. See Article 11.07, V.A. C.C.P.

The petitioner, who was convicted for the offense of felony theft, asserts that he has been denied the right of appeal. The question presented is whether a defendant is bound by his agreement to waive appeal when the agreement is made prior to trial.

The trial court heard the petitioner’s application for writ of habeas corpus on May 10, 1976. There are no findings of fact, conclusions of law, or recommendations concerning granting or denial of relief.

The documents introduced in evidence at the habeas corpus hearing include the Indictment, Judgment, Sentence, Defendant’s Plea of Guilty, Waiver, Stipulation and Judicial Confession, Notice of Appeal, and Order Denying Notice of Appeal.

The petitioner, on March 17, 1976, before entering the plea of guilty agreed in writing that:

“I further understand that in the event I am convicted I have the legal right of appeal to the Court of Criminal Appeals of Texas, and also the right to be represented on appeal by an attorney of my choice or if I am too poor to pay for such attorney or the record on appeal, the Court will, without expense to me provide an attorney and a proper record for such an appeal, but after consulting with my attorney I voluntarily and knowingly and intelligently, waive my right to appeal, except for any good cause which I may show to the court in a motion for new trial.”

Judgment was entered on March 17, 1976; on April 1, 1976, punishment was assessed and sentence pronounced. On April 9th, written notice of appeal was filed and the court entered the “Order Denying Defendant’s Notice of Appeal.”

In Smith v. State, 440 S.W.2d 843 (Tex.Cr.App.1969), the defendant had entered into a pretrial agreement to waive the filing of a motion for new trial. Presiding Judge Woodley, in writing for the Court, said:

“We express the view that a defendant should not be deprived of the opportunity to file a motion for new trial by reason of a waiver filed prior to the trial and at a time when he could not know whether he would desire or have reason or ground for seeking a new trial.”

More recently in Ex parte Dickey, Tex.Cr.App., (No. 51,405, delivered May 4,1976), it was said:

“The instrument filed prior to trial mentioned by the court’s findings is not in the record before us, but even if it was, the procedure of requiring a defendant to waive the right of appeal prior to trial should be condemned. At this point the right has not yet matured, the defendant has no way of knowing with certainty the punishment that will be assessed and cannot anticipate the errors that may occur during the trial. Surely a waiver of appeal under such circumstances cannot be knowingly and intelligently made. Under such procedure the waiver of the right of appeal, as well as waiver of motion for new trial, etc., becomes an integral part of the plea bargaining procedure, and the defendant is put in the position of fearing that if he does not waive such rights it may affect the punishment assessed or result in a denial of his motion for probation, if any.”

We hold as a matter of law that a waiver of right of appeal made prior to trial cannot for the reasons stated in the quoted portions of the opinions of Smith and Dickey be made knowingly and intelligently. Such a waiver is therefore not binding on a defendant.

The appellant’s notice of appeal was timely. See Article 44.08, V.A.C.C.P.

Since the petitioner’s appeal has now been delayed, he should be permitted pursuant to the provisions of Article 40.09, V.A.C. C.P. to perfect his appeal as if notice of appeal were timely filed on the date the mandate was issued by this Court in this proceeding.

It is so ordered.

Opinion approved by the Court.


author: CADENA, Justice.

text:
    John J. McEWEN, Jr., Independent Executor of the Estate of Bessie McEwen Spence, Appellant, v. Joe Dudley PACE, Appellee.
    No. 15503.
    Court of Civil Appeals of Texas, San Antonio.
    April 28,1976.
    Jack Pasqual, Law Office of Pat Malo-ney, San Antonio, for appellant.
    Morris E. Belilove, Houston, for appellee.
   CADENA, Justice.

Plaintiff, John J. McEwen, Jr., independent executor of the estate of Bessie McEwen Spence, appeals from a summary judgment rendered in favor of defendant, Joe Dudley Pace.

Plaintiff sought damages arising from the alleged fraud of defendant. According to plaintiff’s petition, defendant, who had acted as the stockbroker of plaintiff’s decedent during her lifetime, fraudulently appropriated to his own use stocks and other securities belonging to such decedent, who died on November 1,1966. The defendant’s motion for summary judgment was based on the theory that plaintiff’s suit, which was filed on September 19, 1973, was barred by limitations, since the cause of action asserted by plaintiff arose no later than November 1, 1966.

Defendant’s affidavit attached to his motion for summary judgment asserted that defendant was present when plaintiff’s deposition was taken, and that during the course of such deposition plaintiff stated that he had talked to defendant about stock owned by decedent, and that defendant had refused to give details as to the alleged sale of such stock. The affidavit recited that plaintiff had in fact questioned defendant concerning stocks owned by the decedent and that defendant did in fact refuse to give plaintiff any information. The inquiries by plaintiff and the refusal to divulge information by defendant occurred “shortly after November 1, 1966.”

In answer to the motion for summary judgment plaintiff alleged defendant had willfully and consciously concealed his fraudulent acts from plaintiff, and that plaintiff “could not by the exercise of reasonable care and diligence discover said fraud until it was discovered by him in the year 1973, shortly before he filed suit against” defendant. Plaintiff alleged that he made the efforts “of an ordinary prudent person in discovering such fraud, but could not have discovered same prior to 1973.” This reply was supported by plaintiffs affidavit to the effect that he had not discovered the true facts until 1973, and that before that time he had no reason to suspect defendant.

In his deposition plaintiff stated that he had no indication of the nature of defendant’s conduct until 1973; two persons told him, by telephone, that the sale of the stocks “was not proper” and that decedent “had not been treated properly in the matter.”

In his second amended original answer to plaintiffs suit defendant alleged that plaintiff, in his capacity as independent executor, “signed and filed a final accounting, in which accounting the property which is the subject matter of this cause was not listed, nor was a possible claim against this Defendant listed as property belonging to the estate, and that therefore Plaintiff has waived any claim to said property. .

Statutes of limitation do not begin to run in cases based on fraud until the plaintiff has discovered the fraud or has learned facts sufficient to put a person of ordinary prudence on inquiry which, if diligently pursued, would lead to a discovery of the true facts. Susanoil, Inc. v. Continental Oil Company, 519 S.W.2d 230 (Tex.Civ.App. —San Antonio 1975, writ ref’d n. r. e.). The mere fact that plaintiff had an opportunity to investigate is not sufficient to charge him with knowledge as a matter of law. It is necessary that he be aware of facts which would have caused the ordinary intelligent and prudent man to investigate. Bush v. Stone, 500 S.W.2d 885 (Tex.Civ.App. — Corpus Christi 1973, writ ref’d n. r. e.).

The burden was on defendant, as movant for summary judgment, to establish his affirmative defense of the statute of limitation as a matter of law. Stated in traditional summary judgment language, it was incumbent on defendant to establish the absence of any material issue of fact as to the essential elements of his defense. Farley v. Prudential Insurance Company, 480 S.W.2d 176 (Tex.1972). Even if it be assumed that defendant’s motion and affidavit would be sufficient, if uncontroverted, to establish the defense as a matter of law, plaintiff’s reply, supporting affidavit and deposition were sufficient to raise an issue of fact as to the time when plaintiff discovered, or, by the exercise of reasonable care, should have discovered the fraud.

Since the summary judgment proof does not preclude the absence of an issue of material fact concerning the defense of limitations, the rendition of summary judgment in favor of defendant was not justified.

The judgment of the trial court is reversed and the cause is remanded for further proceedings.


author: McCLOUD, Chief Justice.

text:
    Garry Marcus GUNTER, Appellant, v. Theresa GUNTER, Appellee.
    No. 4872.
    Court of Civil Appeals of Texas, Eastland.
    March 18, 1976.
    John D. Crawford, Dallas, for appellant.
    Lawrence Bergman, Bergman & Crowl, Kenneth Fuller, Garland, for appellee.
   McCLOUD, Chief Justice.

Petitioner, Theresa Gunter, was granted a divorce from respondent, Garry Marcus Gunter, and named Managing Conservator of the three minor children of the marriage. The community property was divided and respondent was ordered to pay $60 per week child support. Respondent, Garry Marcus Gunter, has appealed the child support award.

No findings of facts or conclusions of law were filed, although properly requested by respondent. Rules 296, 297, Texas Rules of Civil Procedure; Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117 (1944).

Respondent contends the trial court abused its discretion in setting child support payments at $60 per week. We agree.

The statement of facts reflects that respondent is presently employed and his net income is $87 per week. Respondent’s 1974 income tax return shows that his net income was approximately $98 per week during 1974.

The court in Kominczak v. Kominczak, 474 S.W.2d 749 (Tex.Civ.App. — Houston, 1st Dist. 1971, no writ), said:

“The testimony here shows rather clearly that Mr. Kominczak simply does not earn enough money to properly provide for his child and to support himself. His support payments must be made to correspond to his financial ability. While in cases such as this where hardship is inevitable, the trial court may well determine that the brunt of the sacrifice must fall on the father, still he must be permitted to retain enough of his earnings to pay the necessary expense of living and earning a living. Any other order would be self-defeating and unenforceable. Ex Parte Gonzales, 414 S.W.2d 656 (Tex.1967).”

In view of the respondent’s present earnings and earning capacity, we hold that the court abused its discretion in setting the child support payments at $60 per week.

That portion of the judgment ordering respondent to make child support payments of $60 per week is reversed and remanded. In all other respects the judgment is affirmed.

Affirmed in part and reversed and remanded in part.


author: COLEMAN, Justice.

text:
    TEXAS REAL ESTATE COMMISSION, Appellant, v. Leona HOWARD, Appellee.
    No. 16687.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 6, 1976.
    Rehearing Denied June 3, 1976.

      John L. Hill, Atty. Gen. of Texas, Robert J. Provan, Asst. Atty. Gen., Austin, for appellant.
    Hoover, Cox & Miller, Parx F. Shearer, Houston, for appellee.
   COLEMAN, Justice.

This is an appeal from the judgment of the district court which set side the Commission’s order revoking the Texas Real Estate Brokers’ License of Leona Howard.

Section 18, Article 6573a, Vernon’s Annotated Civil Statutes (the Real Estate License Act) provides:

“The Commission shall before suspending or revoking any license, notify the licensee in writing of any charges made in order to afford such licensee an opportunity to be heard, which notification shall be given at least ten (10) days prior to the date set for hearing. The Commission shall prescribe the time and place of the hearing. The Commission shall have no authority to promulgate rules or regulations which are not definitely set forth in this Act. Such written notice may be served by mailing same by registered mail to the last known business address of such licensee . . .”

Section 21, supra, provides:

“(a) Any real estate broker, or real estate salesman, or any person having a justiciable interest, who is aggrieved by any decision of the Commission may file within thirty (30) days thereafter in the District Court of the county in which he resides, or in the District Court in the county where his principal place of business is situated, a petition against the Commission officially as defendant, alleging therein in brief detail the action and decision complained of and for an order directing the Commission to license or reinstate the applicant. The case shall be tried in accordance with the Texas Rules of Civil Procedure.”

Section 13 of the Real Estate License Act requires a real estate broker to specify the address of his place of business in his application for a license, and further that such address be designated in the license. It further requires that upon change of address of the place of business the real estate broker shall return his license and that a new license showing the correct address be issued to the broker for display in the new office.

An administrative agency, though vested with discretion in its acts, must not exercise its powers arbitrarily or capriciously, and the reasonableness of its orders is subject to judicial review. The extent of such a review has been rather generally held to be limited to an ascertainment of whether there was substantial evidence reasonably sufficient to support the challenged order. Even where a statute provides for a trial de novo, this term, as applied to reviews of administrative orders, has come to have a well defined significance in the decisions of this State, and as a rule has been taken to mean a trial to determine only the issues of whether the agency’s ruling is free of the taint of any illegality and is reasonably supported by substantial evidence. Fire Department of City of Fort Worth v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664 (1949).

In a case involving the order of a county judge denying an application for a license to sell beer the Supreme Court considered a statute authorizing an appeal to the district court and providing “The trial shall be de novo under the same rules as ordinary civil suits.” The court, in Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198 (1949), stated:

. . The statute does not expressly provide that there shall be in district court a full retrial of the facts as if there had been no findings made by the county judge, nor does the statute specify what issue or issues shall be tried in the district court. It may, therefore, reasonably be concluded, in view of the subject matter involved and the nature of the order to be reviewed, that only a limited review is intended, and that insofar as the facts which are the basis for the order of the county judge are concerned the question or issue to be determined in the district court is whether or not the findings of the county judge are reasonably supported by substantial evidence. Such a trial is one kind of a trial de novo, and the somewhat limited trial can be held, as the statute requires, under the rules applicable to ordinary civil suits.”

Since we are not here dealing with a statute requiring a trial de novo, we are not concerned with the question of whether the Commission in making its order was exercising a judicial function rather than a legislative function. The Commission was carrying out an administrative duty in the manner authorized by the legislature. The substantial evidence rule properly was applied by the trial court. Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619 (1958); Railroad Commission v. Metro Bus Lines, 144 Tex. 420, 191 S.W.2d 10 (1945).

As the court pointed out in Wilson v. Board of Education of Fort Worth Ind. School Dist., 511 S.W.2d 551 (Tex.Civ.App. —Fort Worth 1974, writ ref’d n. r. e.), in addition to determining whether or not the order of the Commission is reasonably supported by substantial evidence, we must determine whether or not the agency’s ruling is free of the taint of any illegality. Mrs. Howard asserts that she was denied procedural due process in that she was not afforded notice of the time and place of the hearing and therefore had no opportunity to be heard before the Commission revoked her license. On this issue the trial court is authorized to make findings of fact in accordance with the preponderance of the evidence. The evidence establishes that a proper notice was prepared and mailed to Mrs. Howard by registered mail to her last known business address as authorized by Section 18, Article 6573a, V.A.C.S. The letter mailed to Mrs. Howard, together with the return receipt is in evidence. This letter was returned to the Commission unopened with the following notations: “Notified No Response 3-6-71”; “Final Notice 3-11 3-18”; and “Return to Sender Reason Unclaimed.” There is testimony that the address shown on the letter was that of the offices occupied by Mrs. Howard at that time. Subsequently a letter directed to Mrs. Howard at the same address notifying her of the fact that her license had been cancelled was delivered to her.

A similar question was presented in Ford v. Genereux, 104 Colo. 17, 87 P.2d 749 (1939). There it was argued that a tax deed was void because a delinquent taxpayer was not legally notified of the proposed issuance of the tax deed as required by a statute providing that “The county treasurer shall serve or cause to be served by personal service or by registered mail, a . notice . . . not more than five months, and at least three months before the time of the issuance of such deed.” The evidence disclosed that the treasurer mailed a registered letter containing the statutory notice more than three months before the date of the issuance of the tax deed. The letter was properly addressed. The letter was delivered to the taxpayer less than three months before the issuance of the deed. The court held that service was complete when the treasurer registered and deposited in the United States Mail the statutory notice directed to the proper post-office address of the party to be notified. The court reasoned:

“. . . Any other construction would impose unwarranted continuances with respect to the issuance of tax deeds in that if the date of the issuance of the deed is to be controlled by the dates of the receipt of the registered mail notice by the various interested parties, the treasurer would be unable with certainty to specify in the notice, when transmitted, the day upon which the deed would issue as is required by section 255, supra. It would also make it possible for an interested party to indefinitely defer the issuance of the deed by failure or refusal to accept the registered mail notice. Where service of notice by registered mail is expressly authorized by statute, as is the situation here, it has generally been held that service is effected when the notice is properly addressed, registered and mailed . . . ”

Ford v. Genereux, supra, was cited with approval by the Supreme Court of Idaho in Wasden v. Foell, 63 Idaho 83, 117 P.2d 465 (1941). In Ross v. Hawkeye Ins. Co., 93 Iowa 222, 61 N.W. 852 (1895), the court dealt with the statute providing that insurance policies shall not be declared forfeited or suspended for non-payment of premium until after thirty days’ notice is given. The statute provided that such notice may be served by registered letter, addressed to the assured at his postoffice address named in or on said policy. The court held that service of such a notice is completed when the letter is properly addressed and registered at the postoffice.

In an action brought under the Employers Liability Act of New York, the Court of Appeals of New York in Hurley v. Olcott, 198 N.Y. 132, 91 N.E. 270 (1910), considered a statute providing that notice may be served by post by letter addressed to the person on whom it is to be served at his last known place of residence or place of business and if served by post shall be deemed to have been served at the time when the letter containing the same would be delivered in the ordinary course of the post. The court stated:

“. . . This provision is not anomalous. In many cases the statute provides that notice may be served by mail. Such as the provision as to service of papers on the attorneys in an action, and it has been uniformly held that the service was effective when the papers were properly mailed, regardless of their receipt by the adverse party. The risk of miscarriage is with the party to whom they are directed The law may prescribe other than personal service even of original process by which it is sought to bring a party into court and bind him by its judgment.”

The court pointed out that personal service is not required to constitute due process of law, and that the legislature may prescribe a kind of notice by which it is reasonably probable that the party proceeded against would be apprised of what is going on against him, such as by advertisement in a newspaper.

No Texas cases directly in point have been found. In Rosenthal Executive Car Leasing Co. of Houston, 435 S.W.2d 168 (Tex.Civ.App. — Houston [1st Dist.] 1968, no writ history), this court considered a contract which contained a provision requiring the lessor of an automobile to notify lessee of the amount of an appraisal of the leased automobile after it had been returned to the lessor which notice would constitute an offer by the lessor to sell the leased vehicle at the appraised price. The lease stated that the notification could be by mailing such notice to lessee at the address stated in the lease, “or by any other method deemed by lessor to give actual notice to lessee.” In that case it was contemplated that actual notice be given. The facts established that the proper amount of postage was not affixed to the letter. Under the evidence in that case the court properly held that the lessee of the automobile had not been given notice required by the contract. The Texas courts agree that the date of notice when given by registered mail is controlled by the mailing date rather than the date on which the letter was received. Buckner v. Anderson-Dunham, Inc., 482 S.W.2d 350 (Tex.Civ.App. — Eastland, 1972, writ ref’d n. r. e.); Johnson Service Co. v. Climate Control Con tractors, 478 S.W.2d 643 (Tex.Civ.App.-Austin, 1972, no writ history).

Where service of notice by registered mail is expressly authorized by statute, service is effected when the notice is properly stamped, addressed, registered and mailed. Mrs. Howard had proper legal notice of the time and place of the Commission’s hearing.

The standard by which the order of the Commission under attack must be reviewed was clearly set out in Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198 (1949), in these words:

“Stating again the substantial evidence rule, it is that the finding of the administrative body or agency will be sustained by the court if it is reasonably supported by substantial evidence, meaning evidence introduced in court. It is for the court, whether trial or appellate, to determine as a matter of law the reasonableness of the support afforded by substantial evidence, and in making its decision of this question the court examines and takes into consideration all of the evidence . . . ”

The burden of proving that the order of the Commission revoking her broker’s license was invalid is that of Mrs. Howard. Isbell v. Brown, 196 S.W.2d 691 (Tex.Civ.App. — San Antonio 1946, writ ref’d). The Commission urges that Mrs. Howard failed to sustain her burden because she did not offer the findings and order of the Commission into evidence. Under the peculiar circumstances of this case, we will not sustain this contention. The appellant, Texas Real Estate Commission, asserts in its brief that the instant appeal is from a judgment of the trial court setting aside the order of the Texas Real Estate Commission whereby the Texas Real Estate Broker’s License issued to Leona Howard was revoked. There is in the record a copy of the notice mailed to Mrs. Howard advising her that a hearing had been called to receive evidence in connection with certain specific charges set out in the notice.

The grounds on which a real estate broker’s license may be cancelled are set out in the Real Estate License Act. The notice charged that Mrs. Howard had violated Section 16(c)(5) of said Act which provides:

“Failing within a reasonable time to account for or remit moneys coming into his possession which belong to others, or commingling of money belonging to others with his own funds; . . .”

She was also charged with violating Section 16(c)(22) of the Real Estate License Act reading:

“Conduct which constitutes dishonest dealings, bad faith, untrustworthiness or incompetency; . . . ”

It was alleged that Mrs. Howard failed to return $100.00 earnest money which she had received from Mr. Albert J. Lastrapes in connection with an earnest money contract between Albert J. Lastrapes and Robert Brower and wife, which contract had been negotiated through the Leona Howard Agency. Mr. Lastrapes testified that he approached Mrs. Howard with reference to the purchase of a house and, during their negotiations they discussed the monthly payments which he would be required to make. He stated that he didn’t want a house if the payments on the note would be in excess of $150.00 and that Mrs. Howard told him the payments would be about $134.00 or under $140.00. He told her that he could not afford payments over $150.00. Mrs. Howard assured him that the payments would be around $134.00. There was no written contract with regard to the amount of the payments but there was a verbal agreement between Mr. and Mrs. Lastrapes and Mrs. Howard. He testified that he didn’t think that the restriction on the amount of the payments was a part of the earnest money agreement which he signed with the owner and that he just relied on Mrs. Howard in that regard. Mrs. Howard drew up the contract and he signed it and at that time gave her $100.00 as earnest money. He was given a copy of the earnest money contract. When he learned that the payments on the loan would be $154.00 per month he decided not to go through with the purchase. He then demanded the return of the $100.00 earnest money deposit and Mrs. Howard refused to return it to him.

Mr. Lastrapes also testified that Mrs. Howard told him that if he would complete the purchase she would reimburse him the $100.00 earnest money and give him the money for the downpayment. He supposed that she anticipated that he would not pay the note and that the house would be repossessed. He told her that it appeared to him that that would hurt his credit and he wouldn’t be able to buy another house; that he would have to check into it. He then called someone at the F.H.A. who told him that it would affect his credit and that it was illegal. He testified that he contacted Mrs. Howard and told her about this and that she got very upset. He admitted that he was negotiating with another agent for the purchase of a house at the same time, and that he thereafter purchased the house and that the monthly payment on the house which he purchased was $154.00.

Mrs. Howard, as broker, negotiated the sale of the Brower house to Lastrapes and drew up the earnest money agreement. She testified that she received the $100.00 earnest money, and that she subsequently paid it to the Browers. She testified that she discussed the amount of the monthly payments with Mr. Lastrapes. She figured the principal and interest payments on the amount of the loan and added to that the proper amount for taxes and insurance based on the amount paid by Mrs. Brower and gave him the resulting figure as the approximate monthly payment. She testified that she did not put the monthly payment in the earnest money contract because she never did that. She testified that she had had a real estate broker’s license for approximately twenty years and that she devoted her full time to that occupation. She testified that she had no agreement with Mr. Lastrapes that she would “put a limit on the amount of the payment”; that he did not ask her to put it in the contract; and that she did not remember whether Mr. or Mrs. Lastrapes told her the amount of payment that they could afford. She answered “no” to the question: “Did you have any kind of deal with Mr. Lastrapes to close the deal and you would either pay him or take the property off his hands?” She further stated that she did not indicate to Mr. Lastrapes that if he would close the transaction she would buy the house from him. She further testified that she made no agreement with Mr. Lastrapes to refund him any money after the closing.

The purchase money agreement contained a provision that “if the purchaser fails to consummate the agreement for any reason other than title defects, the seller should have the right to said earnest money as liquidated damages and shall pay to the undersigned agent therefrom one-half of said cash deposit.”

In Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73 (1939), the Supreme Court was faced with an appeal from an order of the Railroad Commission. In the course of the opinion (page 84) the court stated:

“. . . It is also the rule that an appellate court will sustain the judgment of a trial court if it is correct on any theory of the law applicable to the case, and that regardless of whether the trial court gives the correct legal reason for the judgment he enters, or whether he gives any reason at all . . . We think the above rule should apply with double emphasis to cases of this kind where the Commission must make fact findings in the first instance. In the case at bar, if the Commission had merely made a general finding of fact, or if it had made no express finding of fact at all, we could and would presume all controverted fact issues as found in favor of the order entered . . .”

In another appeal from an order of the Railroad Commission in an oil and gas matter the Supreme Court dealt with the meaning of the phrase “reasonably supported by substantial evidence.” In Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022 (1942), beginning on page 1029 the court stated:

“. ... In such a case the issue is not whether or not the agency came to the proper fact conclusion on the basis of conflicting evidence, but whether or not it acted arbitrarily and -without regard to the facts. Hence it is generally recognized that where the order of the agency under attack involves the exercise of the sound judgment and discretion of the agency in a matter committed to it by the Legislature, the court will sustain the order if the action of the agency in reaching such conclusion is reasonably supported by substantial evidence. This does not mean that a mere scintilla of evidence will suffice, nor does it mean that the court is bound to select the testimony of one side, with absolute blindness to that introduced by the other. After all, the court is to render justice in the case. The record is to be considered as a whole, and it is for the court to determine what constitutes substantial evidence. The court is not to substitute its discretion for that committed to the agency by the Legislature, but is to sustain the agency if it is reasonably supported by substantial evidence before the court. If the evidence as a whole is such that reasonable minds could not have reached the conclusion that the agency must have reached in order to justify its action, then the order must be set aside.”

When we apply the tests above set out we find that the order of the Real Estate Commission revoking the broker’s license of Mrs. Leona Howard is reasonably supported by substantial evidence.

The judgment of the trial court is reversed and judgment is here rendered that the order of the Texas Real Estate Commission be affirmed.


author: JAMES, Justice. HALL, Justice

text:
    TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. Arthur J. LOESCH, Appellee.
    No. 5524.
    Court of Civil Appeals of Texas, Waco.
    May 13, 1976.
    Rehearing Denied June 3, 1976.

      Ñaman, Howell, Smith & Chase, Louis Muldrow, Waco, for appellant.
    Dunnam, Dunnam, & Dunnam, W. V. Dunnam, Jr. and Fred Horner, Waco, for appellee.
   OPINION

JAMES, Justice.

This is a workman’s compensation case. ■Pursuant to jury trial the trial court entered judgment in favor of the Plaintiff-Appellee Arthur J. Loesch for total and permanent disability benefits. We affirm.

Plaintiff Loesch was employed at General Tire and Rubber Co., in Waco, Texas. He received an accidental injury while on the job on May 8, 1963.

Trial was to a jury which found:

(1) That Plaintiff Loesch sustained an injury to his body on May 8, 1963;

(2) that such injury was accidental;

(3)and in the course of employment for General Tire and Rubber Co.;

(4) that such injury resulted in total incapacity;

(5) that such total incapacity began on May 8, 1963; and

(6) that such total incapacity was permanent.

As stated, pursuant to such jury verdict the trial court entered judgment in favor of Plaintiff Loesch against Appellant Texas Employers Insurance Association for total and permanent disability benefits, from which Appellant insurer appeals.

Appellant asserts that there is no evidence, and insufficient evidence, to support the jury’s findings that Plaintiff-Appellee Loesch sustained total and permanent incapacity which began on May 8,1963. We do not agree.

At the time of trial Arthur J. Loesch was forty-two years of age, was married, and the father of three children. He had a tenth grade education. At all times material to this controversy he was employed by General Tire and Rubber Co. at Waco, Texas. At the time of May 8, 1963, he was employed as a truck tire builder. Plaintiff had not acquired any particular skills by way of education, and his work background was such that he was obliged to earn his living by manual work. Plaintiff injured his back on May 8, 1963, while building truck tires, and this is his account of how it happened:

“Well, we were using — we’re still using rayon fabric and we had these four-ply rayon bands which were — well, we use a band bar to run those bands on the drums, and you have to bend down and put pressure on them while the drum is spinning and sort of screw them on there, and these bands were unusually stiff. I mean, they wouldn’t stretch very easy, and I got one that was just out of the ordinary, it was real thick stock. I don’t know why. And heavy, and it wouldn’t stretch, and I had the thing about halfway on there and it started to hang the bar, and I don’t know whether you know what happens if a bar hangs. Lots of times it will throw you about twenty or thirty feet, and it was about to hang this bar, and there wasn’t nothing that I could do except just bear down with all I had, and d did, and I got it on there, but when I raised up it felt like a knife sticking in my back, and I couldn’t even walk. They had to carry me to first aid on a little truck — wagon.”

Some co-workers put him on a “skid” (or small truck that the workers get material on) and carried him about 200 yards to first aid. At the first aid station, he was put upon a stretcher, after which he came under the care of Dr. Harry Trippett. Plaintiff was totally disabled for thirteen weeks following this injury, and went back to work sometime the latter part of August, 1963, doing light work.

Dr. Trippett’s medical records showed that Plaintiff’s back was X-rayed on the date of his injury, May 8, 1963, which X-rays showed “no evidence of a fracture or dislocation of the visualized bones.” Dr. Trippett saw him on May 13, 1963, June 13, 1963, December 29, 1965, and February 10, 1966. On December 29, 1965, Dr. Trippett X-rayed Plaintiff’s back a second time, showing, “no evidence of a fracture or dislocation of the visualized bones,” and “no change since 5-8-63.”

Dr. Trippett referred Plaintiff to Dr. Robert Gassier, who first examined Plaintiff on May 21, 1963, and gave Plaintiff an injection. Plaintiff testified that Dr. Gassier told him (Plaintiff) that it was only a “pulled muscle.” Between May 21, 1963, and August 6, 1963, Dr. Gassier saw Plaintiff seventeen times, at which visits Dr. Gassier observed and gave injections to Plaintiff and caused him to be treated with diathermy. Dr. Gassier examined Plaintiff on March 2, 1965, and saw him again on April 3, 1965, after which said doctor again examined Plaintiff on January 6,1966. Dr. Gassler’s records further showed that he examined and X-rayed Plaintiff on February 8, 1971, examined him again on February 12, 1971, and saw him the last time on February 19, 1971. From the record it appears that neither Dr. Trippett nor Dr. Gas-sler ever ran a myelogram on Plaintiff’s back. After the original injury of May 8, 1963, Plaintiff was sent to Dr. Trippett by his employer, said doctor having been paid by the insurance carrier. In turn, Plaintiff was referred to Dr. Gassier by Dr. Trippett, and Dr. Gassier was paid by the insurance carrier through the 1963 treatments. It was not until after the March 2, 1965, examination that Dr. Gassier began sending statements for his services directly to Plaintiff. Neither Dr. Trippett nor Dr. Gassier testified in the case.

As stated before, Plaintiff was totally disabled for thirteen weeks after May 8, 1963, after which time he went back to work doing light work as a “flapper” on the final inspection line during the fall of 1963. Somewhere about January 1,1964, Plaintiff went back to building truck tires, at which work he remained until 1971, except for about six weeks of lighter work building passenger tires in the interim.

At the time of his injury of May 8, 1963, Plaintiff had a wife and three children at home, the ages of which children at the time were ten, eight, and six. The youngest child was a boy who was a hemophiliac (bleeder) and who also had a deformed left leg and foot. The boy was crippled and had to walk with crutches. Plaintiff testified that treatments for the boy were expensive, and he had a lot of unpaid bills at the time of the 1963 injury, and has continued to have many bills ever since for the boy’s medical treatment.

Plaintiff testified that from the time he went back to work in the fall of 1963 and thenceforward he was doing his job but “was hurting also.” In essence, Plaintiff testified that he was in pain practically all the time, sometimes worse than at other times; moreover, it grew progressively worse as time went on. He further testified that he hurt his back additionally many times both on and off the job during the years from 1963 through 1971. Finally, by the early part of 1971, Plaintiff’s condition had reached the point that, as he testified: “I had got to the point where I couldn’t sleep at night, I had to get up and go to the bathroom about every 15 minutes, and my stomach hurt and it was always upset and I was nervous.” He had pain in his left leg and foot that also caused his toes to “go to sleep.” The treatment that he had received from Drs. Trippett and Gassier had not caused his condition to improve. In an effort to relieve the pain, the upset stomach, and the bladder condition, Plaintiff went on his own to Scott and White Clinic and Hospital at Temple, Texas, beginning on February 23, 1971. The records of Scott and White showed their diagnosis to be a “herniated nucleus pulposus” in Plaintiff’s back between L-4 and L-5, commonly known as a ruptured disc. A myelogram was done by Scott and White upon Plaintiff’s back. This diagnosis further showed that the bladder trouble was secondary to his back trouble. On or about May 9,1971, Plaintiff was operated on at Scott and White for this ruptured disc. In the fall of 1971, Plaintiff re-injured his back and was re-admitted at Scott and White, at which time it was determined that Plaintiff had suffered another ruptured disc.

Dr. Robert L. Stockton, a neurosurgeon, testified that he first saw Plaintiff on August 21,1972. In response to a hypothetical question which fit the facts of Plaintiff’s ease, Dr. Stockton testified that the injury of May 8,1963, in reasonable medical probability was the cause of the ruptured disc found in Plaintiff’s back in 1971 at Scott and White Hospital. He further testified that medical doctors who conduct pre-em-ployment physical examinations for employers will not pass a man who has a ruptured disc in his spine; that a man with a ruptured disc who stands on his feet and works seven or eight hours every day will aggravate and worsen his physical condition; that a man might have the physical power to work while at the same time he may not be medically able to do so. Dr. Stockton interpreted the Scott and White diagnosis to mean that Plaintiff’s ruptured disc was “so bad that it was compressing on the nerve roots that control the urinary bladder.” Also, that the longer period of time that there is nerve root compression from a ruptured disc, the more likelihood that additional damage will occur; and that a man with a ruptured disc is not medically able to be carrying on work that requires him to be standing on his feet hours at a time and doing lifting, bending, and turning as a part of his job. Dr. Stockton testified that on September 1, 1972, he released Plaintiff to go back to work on September 5,1972, with the restriction that “he is not to lift more than ten pounds;” that he placed this restriction on Plaintiff because Plaintiff had a “significant medical impairment.”

Charles Holley, a general construction contractor, testified that a man with a ruptured disc in his back cannot obtain employment in the construction industry; that a man to perform the usual tasks of a workman has to be able to crawl, bend, stoop and twist his body.

Defendant-Appellant sought to impeach Plaintiff by showing Plairtiff applied for and collected from Equitable Life Assurance Society $85.00 per week total disability benefits during several months in 1971, upon Plaintiff’s representation that his disability was not connected with or due to his employment. Also, that Plaintiff applied to Trans-Texas Life Insurance Company on March 12, 1971 for similar-type benefits. However, Plaintiff answered this by saying that he applied for these benefits because of his stomach and bladder trouble, and sciatic trouble in his left leg and foot, not knowing that these troubles were being caused by his back trouble.

Harold D. Menafee, Chairman of the Safety Committee at General Tire and Rubber Co. for twenty-one years, testified that no workman can obtain employment performing the usual tasks of a workman from any major employer without first submitting to a pre-employment physical examination; that no major employer would employ a man who has a ruptured disc in his back; that the usual tasks of a workman require varying degrees of strain to the lower back; that a strong or normal back is essential for performance of the usual tasks of a workman.

From our careful examination of this record, we are of the opinion that the evidence is legally and factually sufficient to support the jury’s findings that Plaintiff-Appellee Loesch sustained total and permanent incapacity which began on May 8, 1963.

Appellant complains of the trial court’s submission of Special Issue No. 5, wherein the jury was asked upon what date the total incapacity for work began, to which the jury answered, May 8, 1963. In this connection, Appellant requested a special issue worded as follows:

“What do you find from a preponderance of the evidence to be the beginning date or dates, and the duration of each period or periods of such total disability?

Beginning date(s) Duration in weeks, or 'Permanent'
1._ 1._
2._ 2._
3._ 3._

Appellant admits in its brief that Plaintiff sustained some period of total disability immediately following the injury of May 8, 1963; that after Plaintiffs back surgery at Scott and White in 1971, that he sustained another period of total disability; and that under the testimony of Dr. Stockton the jury could reasonably have found that from 1972 on down to the present, that Plaintiff has sustained some total incapacity. Moreover, Appellant admits that under the testimony of Dr. Stockton, the jury could also have found that at the time of trial Plaintiff’s total incapacity was permanent. This being so, Appellant asserts error because the jury did not have an opportunity to find, under the charge, multiple or interrupted periods of total incapacity. In other words, Appellant says the jury might have wished to find during the intervening period of time (between 1963 and 1971) that there was no total incapacity, but that the jury was deprived from doing so. Appellant also complains of the trial court’s submission of Special Issue No. 6, wherein the jury was asked whether the total incapacity was “permanent” or “temporary”, asserting the issue should not have been submitted disjunctively. As we understand Appellant’s contentions, the jury should have been permitted to find intermittent periods of temporary total disability between 1963 and 1971, “followed or interrupted either by periods of no incapacity or only partial incapacity, and eventually followed by another period of total, permanent incapacity.” We overrule these contentions.

The jury found in answer to Special Issue No. 4, that the May 8, 1963 injury resulted in total disability; in answer to No. 5 that the total disability began on May 8, 1963; and in answer to No. 6 that the total disability was permanent. Rule 277, Texas Rules of Civil Procedure, as amended effective September 1, 1973, expressly provides: “Inferential rebuttal issues shall not be submitted.” Said rule further provides:

“The court may submit an issue disjunc-tively where it is apparent from the evidence that one or the other of the conditions or facts inquired about necessarily exists. For example, the court may, in a workmen’s compensation ease, submit in one question whether the injured employee was permanently or only temporarily disabled.”

Moreover, Rule 279, T.R.C.P. provides: “Where the court has fairly submitted the controlling issues raised by such pleading and the evidence, the case shall not be reversed because of the failure to submit other and various phases or different shades of the same issue.”

In the case at bar, since it was undisputed, and the jury found, that the injury beginning May 8, 1963, resulted in total disability, the controlling issue then was whether the total incapacity was permanent or temporary. See Stone v. Texas Employers Insurance Association (1954), 154 Tex. 21, 273 S.W.2d 59. The jury found the total disability permanent, which finding rendered Appellant’s requested findings immaterial, or at best inferential rebuttal issues.

If the jury had answered Special Issue No. 6, “temporary”, the court conditionally submitted the issue (No. 7) inquiring how many weeks the total incapacity has or would continue. Then, by Special Issue No. 8, the. court unconditionally submitted the issue as to whether the May 8, 1963 injury resulted in any partial incapacity, and if so, when did it begin (No. 9) and how many weeks has it or will it continue (No. 10).

We believe and hold that the trial court fairly submitted the controlling issues in the case at bar, and that Appellant was not entitled to its requested submission of multiple periods of incapacity.

Appellant complains by eight points of error of Plaintiff’s attorney’s voir dire examination of the jury panel, asserting that Plaintiff’s attorney “engaged in vicious and unwarranted attacks upon the insurance carrier, its attorneys, the employer, the alleged ‘insurance doctors’, and even prospective jurors who might not be inclined to accept the plaintiff’s contentions.” Appellant asserts that Plaintiff’s counsel indicated that the defense attorneys and the Defendant wanted to and would deceive, mislead, and confuse the jury regarding the facts and issues in the case; that the Defendant insurance company did not want to abide by the terms and provisions of its policy and the law, and was attempting to avoid liability by evasion, confusion, and deception; that the Defendant insurance company and the “insurance doctors” engaged in sinister and malicious conspiracies to defeat the Plaintiff’s claim by “knowingly” concealing Plaintiff’s “true” condition from him; and sought to intimidate the prospective jurors by indicating that they were dishonest or gullible if they “swallowed” the Defendant’s contentions.

It has been held that a broad latitude should be allowed counsel on voir dire examination of a jury panel in order that peremptory challenges may be exercised, and that such examination is a matter within the discretion of the trial judge whose judgment in the matter will not be reviewed on appeal unless it clearly appears that his discretion has been abused. Fort Worth and D. C. Ry. Co. v. Kiel (Tex.Civ.App. Fort Worth CA 1946), 195 S.W.2d 405, NRE; Lubbock Bus Co. v. Pearson (Tex.Civ.App. Amarillo CA 1955), 277 S.W.2d 186, NRE; Fenton v. Wade (Tex.Civ.App. Fort Worth CA 1957), 303 S.W.2d 816, NRE; Levermann v. Cartall (Tex.Civ.App. San Antonio CA 1965), 393 S.W.2d 931, NRE; 35 Tex.Jur. 2, “Jury”, par. 102, p. 155 and pars. 117 and 118, p. 173 et seq.

In the case at bar, the voir dire examination by Plaintiff’s counsel consists of 84 pages in the statement of facts. The voir dire examination of the Defendant is not in the record, and therefore we are not in position to determine to what extent, if any, Plaintiff’s voir dire examination was answered, mitigated, or neutralized by Defendant’s voir dire examination. Plaintiff’s attorney made voir dire examination (containing some of the matters Defendant now complains of) that consumed eight pages before Defendant made an objection, at which time no request for instruction to the jury panel was made not to consider Plaintiff’s counsel’s remarks. The trial court took no action on this objection. Then Plaintiff’s counsel continued with his examination of the panel (making additional remarks now complained of) until page 32, when Defendant’s counsel objected for the second time, complaining of improper voir dire examination, which objection the trial court sustained, and at which point Plaintiff’s counsel said, “Well, we’ll agree not to go any further.” Again, no request was made for the court to instruct the jury panel not to consider Plaintiff’s counsel’s remarks. Plaintiff’s counsel proceeded with his examination of the jury panel without interruption until page 54, when Defendant’s attorney objected to one of the remarks now complained of, again without making a request for the trial court to instruct the panel not to consider it. At this point the Defendant moved for a mistrial outside the presence of the jury, which motion was overruled by the trial court. Plaintiff’s counsel thereafter resumed his examination on page 56 which continued without objection to page 84.

We believe it is significant that after the motion for mistrial was made, Plaintiff’s examination was largely free from the remarks now complained of by Defendant, which indicates that if Defendant had made prompt objection coupled with the request for instruction by the court to the jury panel not to consider the objectionable remarks, the harm, if any, would have been cured. In other words, we believe the asserted improper remarks of Plaintiff’s counsel were curable by prompt objection coupled with request for instruction not to consider the remarks.

Our Supreme Court has held many times, wherein jury arguments are concerned, that if the improper jury argument is curable, the complaining party must object to such argument and request the court to instruct the jury not to consider same, and failure to do so waives the error. Ramirez v. Acker (1940), 134 Tex. 647, 138 S.W.2d 1054; King v. Federal Underwriter Exchange (1946), 144 Tex. 531, 191 S.W.2d 855; Wade v. Texas Employers’ Insurance Assn. (1951), 150 Tex. 557, 244 S.W.2d 197; Texas Employers’ Ins. Assn. v. Haywood (1954), 153 Tex. 242, 266 S.W.2d 856; Turner v. Turner (Tex.1964), 385 S.W.2d 230, 237; Otis Elevator Co. v. Wood (Tex.1968), 436 S.W.2d 324 (excellent discussion by Chief Justice Greenhill on p. 333). Also see Hartford Acc. & Indemn. Co. v. Thurmond (Tex.Civ.App. Corpus Christi, 1975), 527 S.W.2d 180, 192, NRE.

However, be that as it may, before a judgment is reversed because of argument of counsel, two things must appear: the argument must be improper, and it must be such as to satisfy the reviewing court that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. To resolve this problem we must consider the entire record. Rule 434, T.R.C.P., Aultman v. Dallas Railway And Terminal Co. (1953), 152 Tex. 509, 260 S.W.2d 596; McNeil v. Current (Tex.Civ.App. Houston, 1972), 484 S.W.2d 394, NRE; Twin City Fire Insurance Co. v. Gibson (Tex.Civ.App. Amarillo, 1972), 488 S.W.2d 565, at p. 582, NRE.

We have carefully examined the entire record and have determined that the asserted improper voir dire examination by Plaintiff’s counsel, if error, was harmless error under Rule 434, T.R.C.P. Moreover, we cannot say from the record before us that the trial court abused his discretion in his conduct of the voir dire examination.

Appellant further complains that Plaintiff’s counsel in the voir dire examination informed the jury that total and permanent incapacity meant 401 weeks at $35.00 per week, and thereby the jury was informed of the legal effect of their answers. The record shows that Plaintiff’s counsel did inform the jury panel of this three different times (on pages 3, 37, and 41) without any objection from opposing counsel. This was pleaded by Plaintiff without any special exception having been levelled against same by Defendant. Such informing of the jury, if error, was waived and in our opinion was harmless, considering the record as a whole. See Transport Insurance Co. v. Nunn, (Tex.Civ.App. Houston, 1964), 375 S.W.2d 484, NRE; Utica Mutual Ins. Co. v. Jacobs (Tex.Civ.App. Houston 14th CA 1972), 483 S.W.2d 500, no writ. In the record before us, it does not appear that lump sum payment had been stipulated.

Finally, our Supreme Court has held that the workmen’s compensation act should be liberally construed in favor of the workman, since in coming under the terms of the act the workman is denied his common law rights; Hargrove v. Trinity Universal Ins. Co. (1953), 152 Tex. 243, 256 S.W.2d 73; and if there is any reasonable doubt which may arise in a particular case as to the right of the injured employee to compensation, same should be solved in favor of such right. Bailey v. American General Ins. Co. (1955), 154 Tex. 430, 279 S.W.2d 315, 318.

We have carefully examined all of Appellant’s points and contentions and overrule same. Judgment of the trial court is accordingly affirmed.

AFFIRMED.

HALL, Justice

(concurring).

I concur in the affirmance.

The voir dire in question was clearly improper. However, I agree that the harm caused by it was curable in this case by timely objections coupled with instructions by the court to the jury to disregard it; and that without a showing of such objections and requests for the instructions by the appellant, and incorrect rulings thereon by the court, the record does not reflect reversible error relating to the voir dire. Turner v. Turner, 385 S.W.2d 230, 237 (Tex.Sup., 1965); Texas Employers’ Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856, 858 (1954).

I agree also that the appellant’s requested issue is a different phase or shade of submitted issues nos. five, six, and seven. Findings on the appellant’s defensive theories of periods of temporary total incapacity intermittently broken by periods of partial incapacity or no incapacity could have been made in answers to these issues and issues nos. eight, nine, and ten if the jury had determined to do so. Accordingly, the court’s refusal to submit the requested issue was not error. Rule 279, Vernon’s Tex. Rules Civ.Proc.

It is for these reasons only that I join the majority in overruling the appellant’s complaints relating to the jury voir dire and the court’s charge.


author: McDONALD, Chief Justice.

text:
    Ricky Lee WELCH, Appellant, v. STATE of Texas, Appellee.
    No. 5549.
    Court of Civil Appeals of Texas, Waco.
    May 27, 1976.
    Rehearing Denied June 24, 1976.

      Hall, Terrell & Kettler, James O. Terrell, Waco, for appellant.
    Martin D. Eichelberger, Dist. Atty., and Robert W. Pearson, Asst. Dist. Atty., Waco, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by appellant Ricky Lee Welch from a waiver of jurisdiction by the 19th District Court (sitting as a Juvenile Court), in a cause involving Welch, and transferring the cause to the District Court of McLennan County exercising criminal jurisdiction.

The District Attorney of McLennan County on September 30, 1975 filed a petition in the 19th District Court (sitting as a Juvenile Court) alleging that Ricky Lee Welch is a male child 16 years old; resides with his mother Mrs. Flora Welch in Waco, Texas; that he has engaged in delinquent conduct within the provisions of title 3 of the Family Code; that the interests of the public and the child require the court to take formal jurisdiction of the child for the reason that on September 7, 1975 he committed theft from Robert Lynn Harlan by using a hand gun, and threatened Harlan and placed him in fear of bodily injury in violation of Section 29.03 of the Penal Code. The petition prayed the Court conduct proceedings and enter orders as for the best interests of the child and for the protection of the public.

On the same date the District Attorney filed motion with the same court for Discretionary Transfer of the case to a Criminal District Court. Such motion alleged: that after complete diagnostic study, social evaluation and a full investigation of the child, his circumstances, and the circumstances of the alleged offenses, that because of the seriousness of the offense, the welfare of the community requires that the Juvenile Court waive its jurisdiction and transfer Welch to a Criminal District Court.

After hearing on October 7, 1975 the Juvenile Court entered an order finding: 1) The appellant is 16 years old, and the parent is Flora Welch; 2) the act allegedly committed by appellant would be felony if committed by an adult; 3) the alleged offenses were against both person and property; 4) the alleged offense was committed in a premeditated aggressive manner; 5) there is evidence upon which the Grand Jury may be expected to return an indictment regardless of the youthful age of Welch; 6) Welch is of sufficient sophistication and maturity to be tried as an adult, and of sufficient sophistication and maturity to aid an attorney in his defense; 7) because of the record and previous history of Welch and the extreme and severe nature of the alleged crime, the prospect of adequate protection for the public and the likelihood of reasonable rehabilitation of the child by use of the facilities of the Juvenile Court are in serious doubt; 8) that it is contrary to the best interest of the child and the public to retain jurisdiction; and because of the seriousness of the alleged offense and the background of the child, the welfare of the community requires criminal proceedings.

The order then waived jurisdiction of the Juvenile Court and transferred the child to the Criminal District Court of McLennan County for proper criminal proceedings.

Appellant appeals on 3 points of error:

1) “The petition is fatally defective in that it does not state that it is a petition for adjudication on transfer hearing.
2) “It was error for the trial court to refuse to enter findings as to the vol-untariness of the confession. It deprived appellant due process of law of his statutory rights. It destroyed the essential fact-finding ability of the court.
3) “In view of the totality of the circumstances, the Miranda warnings given appellant were inadequate and thus the confession relied on by appellees was illegally obtained and wrongfully admitted as evidence because the 16 year-old juvenile did not make an intelligent and knowing waiver of his rights.”

Appellant’s 1st point asserts the petition is fatally defective in that it does not state that it is a petition for adjudication on transfer hearing.

Appellee State of Texas filed a petition on September 30, 1975 alleging appellant “engaged in delinquent conduct”, and that he had committed theft of money from Robert Lynn Harlan by using a hand gun; and then prayed the Court to enter such orders as the Court may deem to be for the best interest of the child and for the protection of the public.

On the same date appellee filed what it called “Motion for Discretionary Transfer to a Criminal District Court”. This instrument contained all requisites for a petition to transfer, and clearly informed appellant of the purpose of the hearing and what appellee was seeking. The fact that it was called a “Motion” to transfer rather than a “Petition” to transfer is of no consequence. Aside from the fact that the instrument here was labelled a “Motion” to transfer, rather than a “Petition” to transfer, this case involves the same procedure sanctioned by this Court in Stockton v. State, (Tex.Civ.App., Waco) NWH, 506 S.W.2d 918.

Appellant’s 2nd point asserts it was error for the trial court to refuse to enter findings as to the voluntariness of the confession; deprived appellant due process of law of his statutory rights; and destroyed the essential fact finding ability of the Court.

Appellee offered the confession of appellant in evidence. Appellant objected to its admission on the ground that, “The State has yet to sustain their burden that this Statement was voluntarily given”. The trial court overruled the objection and received the confession into evidence. After trial appellant requested the court to file Findings of Fact and Conclusions of Law. The trial court filed its Findings of Fact summarized in footnote below; but nowhere addressed itself to the confession. Appellant contends under his point that: 1) he was entitled to a full hearing as to the voluntariness of the confession before it was admitted into evidence; 2) that he was entitled to have the trial court make specific findings on the voluntariness of the confession as a result of his original request for Findings of Fact.

The record reflects that the provisions of Section 51.09(b) of the Family Code were fully complied with; that Judge Joe Johnson gave appellant all of the required warnings, and that the confession was admitted into evidence.

Appellee introduced evidence that the confession was voluntary. Appellant presented no evidence that it was not voluntary. The record sustains an implied finding that the confession was voluntary.

Appellant after the trial court made its Findings of Fact made no request for additional findings as to the voluntariness of the confession and has waived any complaint. TRCP 298.

Appellant’s 3rd point asserts in view of the totality of the circumstances, the Miranda warnings given appellant were inadequate and thus the confession was illegally obtained and wrongfully admitted because the juvenile did not make an intelligent and knowing waiver of his rights.

“Totality of the circumstance” is to be examined to determine if a confession is voluntary. Beecher v. Alabama, 389 U.S. 35, 88 S.Ct. 189, 19 L.Ed.2d 35. It is undisputed that 1) Appellant is 16 years old; 2) He had a tested IQ of 80; 3) Appellant had been handled on 9 occasions prior to the alleged aggravated robbery; 4) Appellant was placed on unofficial probation February 2, 1970; 5) Appellant was adjudicated delinquent on February 11, 1971 and put on official probation; 6) Appellant was brought before the court on September 15, 1971 to revoke probation, but the court continued his probation; 7) Appellant was found guilty of additional charges on August 10, 1972 and placed on probation with his father in Dallas; 8) Appellant was found guilty of additional charges July 11, 1974 and committed to the Texas Youth Council; 9) Appellant was paroled from the Texas Youth Council February 28, 1975; 10) Appellant was detained by the police from 4:30 P.M. to 10:30 P.M. on date of confession; 11) Appellant and his mother were given warnings required by Texas Family Code by Judge Johnson prior to talking to the police; 12) Appellant was again given such warnings prior to signing the confession; 13) The Magistrate certified he examined appellant independently, without the presence of any law enforcement officer and was convinced appellant understood the nature and contents of the statement, and that appellant knowingly, intelligently and voluntarily waived his rights prior to and during the making of the statement.

We think under the totality of the circumstances the Miranda warnings given appellant were adequate, and the confession was legally obtained, and properly admitted into evidence.

Moreover, Exhibit 1, the Social History of Appellant was admitted into evidence without objection, and contains similar information to that contained in appellant’s confession.

All appellant’s points are overruled.

AFFIRMED.

      . 1) Ricky Lee Welch is a male child born 31 December, 1958.
      2) He was 16 years old at time acts are alleged to have occurred.
      3) No adjudication hearing has been conducted concerning such acts.
      4) The parent of Ricky Lee Welch is Flora Welch of 1100 N 6th, Apt. VI, Waco, Texas.
      5) The acts would be felonies under Texas law if committed by an adult, towit: Aggravated Robbery Section 29.03 Penal Code.
      6) The acts occurred in McLennan County.
      7) The alleged offenses are against both person and property, towit: On 7 September, 1975 said child took property from Robert Lynn Harlan, by use of a hand gun.
      8) The alleged offense was committed in a premeditated and aggressive manner, towit: Robbery was planned and executed by use of a hand gun.
      9) There is evidence upon which the Grand Jury may be expected to return an indictment regardless of the youthful age of Ricky Lee Welch.
      10) Ricky Lee Welch is of sufficient sophistication and maturity to be tried as an adult.
      11) Ricky Lee Welch is of sufficient sophistication and maturity to aid an attorney in his defense.
      12) Because of the record and previous history of Ricky Lee Welch and the extreme and severe nature of the alleged crime, rehabilitation by use of the procedures of the Juvenile Court is in serious doubt.

      . The statement of the child is admissible in evidence in any future proceeding concerning the matter about which the statement was given if:
      1) When the child is in a detention facility or other place of confinement or in the custody of an officer, the statement is made in writing and the statement shows that the child has at some time prior to the making thereof received from a magistrate a warning that:
      (A) he may remain silent and not make any statement at all and that any statement he makes may be used in evidence against him;
      (B) he has the right to have an attorney present to advise him either prior to any questioning or during the questioning;
      (C) if he is unable to employ an attorney, he has the right to have an attorney to counsel with him prior to or during any interviews with peace officers or attorneys representing the state;
      (D) he has the right to terminate the interview at any time;
      (E) if he is 15 years of age or older at the time of the violation of a penal law of the grade of felony the juvenile court may waive its jurisdiction and he may be tried as an adult; and
      (F) the statement must be signed in the presence of a magistrate by the child with no law enforcement officer or prosecuting attorney present. The magistrate must be fully convinced that the child understands the nature and contents of the statement and that the child is signing the same voluntarily. If such a statement is taken, the magistrate shall sign a written statement verifying the foregoing requisites have been met.
      The child must knowingly, intelligently, and voluntarily waive these rights prior to and during the making of the statement and sign the statement in the presence of a magistrate who must certify that he has examined the child independent of any law enforcement officer or prosecuting attorney and determined that the child understands the nature and contents of the statement and has knowingly, intelligently, and voluntarily waived these rights.


author: KEITH, Justice.

text:
    Richard WOOD, Appellant, v. ZENITH MORTGAGE COMPANY, Appellee.
    No. 7833.
    Court of Civil Appeals of Texas, Beaumont.
    May 27, 1976.
    Rehearing Denied June 17, 1976.

      John E. Powers, Austin, for appellant.
    Thomas H. Watkins, Austin, for appellee.
   KEITH, Justice.

Our appellant is one of two defendants who were cast in judgment when they failed to appear for trial of the case at the time of its setting. The other defendant has not perfected any appeal from such judgment.

Plaintiff below, Zenith Mortgage Company, alleged causes of action for breach of an express written contract, an express oral contract, and statutory attorney’s fees in connection with the breach of the contracts. Appellant Wood and his co-defendant 0. D. Kendrick, appeared and answered with Counsel No. One. Some six months later, an amended answer was filed for both defendants by Counsel No. Two. Thereafter, and at a time when the case was set for trial on June 2, 1975, Counsel No. Two sought a continuance, the pertinent allegations being set out in the margin. The motion was granted and the cause was continued.

On June 4, the cause was set for trial on October 13, 1975, and both defendants had actual knowledge of such setting months before the actual trial date. Apparently, appellant did not cooperate with Counsel No. Two because he filed a motion for leave to withdraw as attorney of record for the defendants making the representation that “said defendants will obtain other counsel.” Leave to withdraw was granted on July 31, 1975.

On October 8, 1975, Counsel No. Three filed a motion for continuance asserting that “[a]t this time, defendants have no attorney of record and are unable to safely go forward and prepare or present their defense in this cause.” Further representations were made that such attorney had been “contacted” by defendants but he had had no opportunity to “interview the party Richard Wood” and had insufficient information about the case to either accept or reject the tendered employment. Counsel No. Three sought a 30-day postponement of the trial.

The parties are in apparent agreement that this second motion for continuance was overruled although we do not find any record showing thereof. At the appointed hour of 9 a. m., October 13,1975, plaintiff’s counsel was present in the courtroom but neither defendant nor Counsel No. Three was present. The cause proceeded to trial in defendants’ absence after a jury had been impaneled; and, at the conclusion of the presentation of plaintiff’s evidence, the court instructed the jury to return a verdict for the plaintiff and against the defendants and submitted a single issue, the amount of plaintiff’s attorney’s fees, to the jury.

Defendant Kendrick got word that his case was being tried and rushed to the courthouse where he encountered plaintiff’s counsel leaving the courtroom. Kendrick then learned that the case had been tried in his absence.

Defendants then retained Counsel No. Pour; and we note in passing that Counsel No. Four began to work diligently upon the case. He followed precisely the required procedures laid down by our Supreme Court to guide counsel in such a situation. See generally, Craddock v. Sunshine Bus Lines, 134 Tex. 388, 393, 133 S.W.2d 124, 126 (1939), and Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex.1966). Counsel No. Four even anticipated the Supreme Court because he filed in October, 1975, a motion which offered to pay expenses incurred by Zenith in securing the default judgment. See United Beef Producers, Inc. v. Lookingbill, Tex., 532 S.W.2d 958, 19 Tex.Sup.Ct.Jrl. 167, 168 (February 4, 1976).

Although the trial court heard evidence on the motion for new trial, no order was entered thereon since the motion was overruled by operation of law. We do not have a transcript of the evidence introduced at such hearing. However, under the undisputed record (the transcript) which we do review, we are able to reach the vital issue presented by the appeal — the reasonable excuse for failure to appear.

We need not consider whether or not defendant Kendrick was negligent in failing to appear at the trial; he did not appeal and his conduct is not under review. Appellant Wood labored under the burden of establishing that his default was “not intentional, or the result of conscious indifference on his part.” Craddock, supra; Ivy, supra. With full knowledge that he was without counsel after July 31, he took no steps to retain counsel to prepare for the trial. Even when he “contacted” Counsel No. Three, a few days before the trial date, he did not even confer with him.

We adopt the language found in Burnett v. Meletio, 351 S.W.2d 912, 916 (Tex.Civ.App. — Dallas 1961, writ ref’d n. r. e.):

“It is our opinion that the appellant in this case has failed to demonstrate by this record one of the essential elements of the rule announced in the Craddock case, namely, a reasonable excuse for his failure to appear either in person or by attorney at the time this case was tried.”

See also, Industrial Instrument Corp. v. Form Forge Co., Etc., 427 S.W.2d 955, 958 (Tex.Civ.App. — Austin 1968, no writ).

We have reviewed the cases cited by appellant but find none to be persuasive under the record proof in this cause.

The appellant has failed to show that the trial court abused its discretion in not granting the motion for new trial; thus, we find no necessity of discussing the points relating to the meritorious defense argued in his brief.

The judgment of the trial court is affirmed.

AFFIRMED.

       “Defendants cannot go safely to trial on account of the absence and consequent inability of Richard G. Wood [our appellant] to assist counsel in final preparation for trial, which is scheduled for June 2, 1975. .
      “Richard Wood has been and continues to be unavailable to cooperate with counsel in final preparation for trial. . . .”