text:
    Richard Lee HUTCHINS, Respondent, v. Martha Belle HUTCHINS, Appellant.
    No. 48767.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 12, 1985.

      W. Morris Taylor, Clayton, for appellant.
    Ellsworth Cundiff, St. Charles, for respondent.
   REINHARD, Chief Judge.

This is an appeal by wife from the decree dissolving the parties’ marriage. This is the second time this case is before the court. The first appeal was dismissed because the trial court had failed to dispose of all marital property. Hutchins v. Hutchins, 660 S.W.2d 403 (Mo.App.1983). Following that dismissal the parties entered into a stipulation for the distribution of that property. The stipulation also transferred custody of one of the parties’ three minor children to husband, but otherwise left the original decree intact, subject to right of appeal. The agreement was approved by the trial court and a final, appealable decree is now before us. The record of the first appeal has been incorporated into the present appeal, with the parties resubmitting their original briefs with supplementation. Wife realleges the same points as in the first appeal: that the trial court erred in its awards of maintenance, child support, and attorney’s fees, in the division of marital property, and in classifying certain assets as husband’s separate property. We modify and affirm as modified.

The parties were married on January 9, 1965. They separated on Janjiary 3, 1981, when wife was admitted to an alcohol abuse treatment center. Although she successfully completed the treatment program, and has had no problems with alcohol since, the parties never resumed cohabitation. Three children were born of the marriage; Mary Frances, born September 18, 1965; Kathleen Beatrice, born October 10, 1968; and Richard Lee Hutchins, Jr., born October 7, 1974. The original decree gave custody of all three children to wife, and awarded her child support of $65 per week per child. As noted above, the stipulation provided that custody of the youngest child be transferred to husband and eliminated child support payments after the date of transfer.

During the marriage, husband provided for the financial needs of the family while wife remained home to raise the children. She has an eleventh grade education and has not been employed outside the home since the marriage. He had been employed for about 20 years by the Hutchins Co., serving 15 years as an officer and 10 years as a director. On June 30, 1981, however, his employment was terminated, the details of which are discussed below. He remained unemployed until August 17, 1981, when he began working for Traditional Watercraft, a manufacturer of sailboats, located in Florida. Initially, he earned $3.35 per hour, but by January 1982 he was earning $4.00 per hour, and working an average of 32 hours per week.

Hutchins Co. is a closely-held corporation with operations in St. Charles County and in Florida. The Florida division manufactures sailboats. Husband’s parents are the majority shareholders of the company, owning two-thirds of the stock. The remaining one-third is divided equally among husband and his two brothers. The three brothers also are partners in a partnership which owns the real estate on which Hutch-ins Co.’s Florida operation is located. Husband’s salary from Hutchins Co. had been over $40,000 each of the three years preceding his termination, and over $50,000 his last year.

Husband’s ^discharge by Hutchins Co. is the source of much dispute. The firing occurred the day after the hearing on temporary allowance. The reason advanced was husband’s alleged poor job performance. However, the corporate records show that the directors approved a resolution commending the officers for their work during the year. There was testimony that husband said he did not apply for unemployment compensation because he quit his job and was not fired.

The evidence showed that, despite the firing, husband’s relationship with his parents and brothers remained warm and cordial. Husband retained the use of a company automobile, and used his father’s car to travel to St. Charles from Florida for one of the hearings in the cause. He accompanied his brother to a trade show in Annapolis, Maryland, allegedly on behalf of his new employer, travelling in a Hutchins Co. car. His new employer was an acquaintance of husband’s father, and was located just six miles from Hutchins’ Florida plant.

The court ordered a roughly equal division of the marital property. The main asset awarded to wife was the marital home, valued at $60,000 subject to an outstanding debt of $21,000, which she was ordered to pay. She received no income producing assets. The court also awarded her maintenance in gross of $500 per month for one year.

The primary issue in this appeal is the court’s award of maintenance. We have reviewed wife’s allegations of error regarding the classification of the Hutchins Co. stock, the division of marital property, and the amounts of child support and attorney’s fees awarded her. We find the court’s decision on each of these items to be supported by substantial evidence and within the court’s discretion. The judgment is affirmed as to all these items. Rule 84.16(b).

On the issue of maintenance, wife challenges both the amount and nature of the award. Based upon the evidence before the trial court, we find no error in the awarded amount of $500 per month.

Since the enactment of the new dissolution act, one of the most vexing problems facing our courts has been the proper approach to limited maintenance awards. It is now well settled that § 452.-335 RSMo. (1978) authorizes three types of awards; a fixed sum payable at once, a fixed sum payable in installments, or an award of unlimited duration. Doerflinger v. Doerflinger, 646 S.W.2d 798 (Mo. banc 1983). Doerflinger also established that any award which is limited in duration is in the nature of an award in gross, so that it may not be modified in the future. Id. Thus, the only remedy for a spouse whose maintenance award was wrongly limited is an appeal. Id. That appeal will determine “whether there was substantial evidence at the time to justify imposition of the limitation.” Id. at 802. To satisfy this requirement there should be “evidence of some impending change in the financial conditions of the parties or at the least some reasonable expectation that such a change will occur.” In re Marriage of Powers, 527 S.W.2d 949, 956 (Mo.App.1975).

The evidentiary requirement seems to have resulted in a judicial preference for awards of unlimited maintenance. See e.g., Blount v. Blount, 674 S.W.2d 612 (Mo.App.1984); LoPiccolo v. LoPiccolo, 547 S.W.2d 501 (Mo.App.1977). However, in several cases the appellate courts have affirmed the award of limited maintenance. See Steinmeyer v. Steinmeyer, 669 S.W.2d 65 (Mo.App.1984); Royal v. Royal, 617 S.W.2d 615 (Mo.App.1981); Sansone v. Sansone, 615 S.W.2d 670 (Mo.App.1981). If there is any rational basis to support the trial court’s determination to limit maintenance, it should be affirmed. Sansone v. Sansone, 615 S.W.2d 670 (Mo.App.1981); Vogt v. Ketzner, 634 S.W.2d 583, 584 (Mo.App.1982) (concurring opinion).

Our review of the record in this case leads us to conclude that the limitation on maintenance is not supported by substantial evidence. Doerflinger v. Doerflinger, 646 S.W.2d 798 (Mo. banc 1983). The decree is modified to remove the limitation on maintenance. In all other respects, including the award of $500 per month maintenance, the decree is affirmed.

STEPHAN and SIMON, JJ., concur.


source: Caselaw Access Project

author: BERREY, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Jack T. JOHNSON, Appellant.
    No. WD 35892.
    Missouri Court of Appeals, Western District.
    March 12, 1985.

      James J. Wheeler, Keytesville, for appellant.
    Michael L. Midyett, Pros. Atty., Chariton County, Keytesville, for respondent.
    Before LOWENSTEIN, P.J., and NU-GENT and BERREY, JJ.
   BERREY, Judge.

Defendant was convicted by a jury in the Circuit Court of Carroll County of, Count I, driving while intoxicated, second offense, Count II, driving while license was revoked and Count III, failure to transfer license plates.

The jury assessed punishment of six months in the county jail and a fine on Count I, ninety days in the county jail on Count II and a fine on Count III. In addition to the jail time the judge imposed a fine of $250.00 on Count I and $250.00 on Count III. The defendant appeals the conviction and alleges six points of error: (I) the court erred in not sustaining defendant’s objection to leading questions by the prosecuting attorney; (II) the trial court erred in permitting an officer to testify as to breathalyzer reading since no foundation was laid and there was no showing of the meaning of the reading; (III) Instruction Number Seven was not supported by competent evidence showing appellant’s Missouri operator’s license was revoked; (IY) the trial court erred in not giving tendered Instruction A; (V) the trial court erred in giving Instruction Number Eight; and (VI) the trial court’s comment to the jury regarding defendant’s evidence was in error and in violation of Rule 27.06.

Deputy Sheriff Link was seated in his patrol car operating radar about 1:30 a.m. on Saturday night, August 21, 1983, on the main drag in Brunswick, Missouri. He was parked a block or so from the Rendezvous bar. As he sat in his cruiser he observed the defendant exit the bar and walk west and then turn south between some buildings. Officer Link next saw defendant drive west on Highway 24 in a white Plymouth and noted the license plate number, BRT 491. He then called the Carroll County sheriff’s office for a license check on the vehicle. While waiting for a response he followed defendant in his vehicle and after about two blocks the defendant pulled over and Officer Link pulled in behind him. The dispatch came back that the plates in question were registered to a different car.

At this juncture Officer Link approached the defendant’s car and asked him for his license, to which defendant responded “I don’t have any driver’s license.” Officer Link observed the usual signs evidencing intoxication to-wit: odor of alcohol on defendant’s breath, slurred speech, watery eyes, flushed face and when ordered to stand defendant was unsteady. Defendant stated he was thirty when, in fact, he was fifty-three and that he weighed one-hundred pounds when, in fact, he weighed one-hundred-eighty pounds. Officer Link then transported defendant to Keytesville to take a breathalyzer test, which measured 0.24 “breath alcohol content by weight.”

Appellant argues first that the trial judge erred in permitting the prosecuting attorney to ask leading questions.

The questions objected to by the appellant were from the offense report form and constituted the interrogation between Officer Link and the defendant. The appellant had been supplied a copy of the report pursuant to his discovery request. Although the questions were numerous, in this case, the defendant was not prejudiced as he already knew the answers to be given since it was from his interrogation.

The matter of leading questions is largely discretionary with the trial court and unless there is abuse of discretion will not constitute reversible error. State v. Wolfe, 570 S.W.2d 694, 696 (Mo.App.1978).

The appellant contends that State v. Shepard, 334 Mo. 423, 67 S.W.2d 91 (1933), holds it error for the prosecuting attorney to lead the witness and so it does. Later cases have consistently held that the trial court has discretion to overrule objections and grant leading questions. It also holds that the prosecuting attorney may lead a witness to refresh his memory and that was the evidence in the instant case. Officer Link was asked:

Q. Do you need those notes to refresh your memory as to what you asked him and what the responses were, that he made?
A. Yes, sir, I’d like to.
Q. Why don’t you refer to those notes. Did you ask him the question, when did he leave?
A. Yes, sir.

The following then transpired between counsel and the court:

Mr. Wheeler: May I ask a voir dire question?
The Court: You may.
Mr. Wheeler: Do you have an independent memory of this, or are you reading from something that has been furnished you?
The Witness: That is a copy of Alcohol Influence Report.
Mr. Wheeler: Something that the prosecutor gave to you today?
The Witness: No. I made this report out myself.
Mr. Wheeler: Did he give it to you today?
The Witness: No, sir.
Mr. Wheeler: Do you have an independent memory of what you are saying?
The Witness: With help from this, I can remember exactly what was said. By myself, I have trouble remembering exactly what Mr. Johnson said.
Mr. Wheeler: I have nothing further.

It is clear from the evidence that the witness was refreshing his memory and the leading nature of the questions fell under the trial court’s discretion. In Sheets v. Kurth, 426 S.W.2d 108, 104 (Mo.1968), the court acknowledged that the general rule regarding leading a witness was discretionary with the trial court. Leading a witness will not constitute reversible error unless the trial court abuses its discretion.

The transcript reveals the testimony of Link was fairly conducted and the court did not err in overruling the appellant’s objection to the leading questions. State v. Todd, 372 S.W.2d 133, 137 (Mo.1963). Appellant does not allege prejudice, and, “[ejrror without prejudice, if there was error here, affords no basis for relief by an appellate court.” State v. Phelps, 478 S.W.2d 304, 310 (Mo.1972).

Point I is denied.

Appellant next alleges that the trial court erred in permitting testimony concerning the breathalyzer reading because no foundation was laid and there was no showing of the meaning of the reading. The record, though, shows quite the contrary. Deputy Sheriff John Gamblin, the Chariton County breathalyzer operator, testified he administered the breathalyzer to defendant. In the process of doing so he smelled intoxicants on defendant’s breath, observed defendant had blood shot eyes, slurred speech and staggering gait. Gamblin further testified he had observed hundreds of persons who had the same characteristics as defendant and that in his opinion defendant was drunk. Gamblin testified defendant registered 0.24 plus on the breathalyzer and he reported it as the lower reading 0.24, breath alcohol content by weight. He identified state Exhibit 2 as the checklist supplied by the Division of Health that he completed at the time the test was administered to the defendant. Pursuant to his testimony, the exhibit was received as reflective of the actual procedure he followed.

Brian Smith, a corporal of the Missouri State Highway Patrol, testified his duties for the past four years involved maintenance of breathalyzers in Chariton County. Smith holds a Type II R and Type III permit issued by the Missouri Division of Health. The former authorizes him to repair the “Stevenson Model 900” machine, the machine used in this case. The trooper had checked the machine monthly. On August 19, 1983, and September 15, 1983, he found it to be within its tolerances.

The evidence offered by the state demonstrated that Deputy Gamblin followed the procedures set forth in the checklist approved by the Division of Health. State v. Bush, 595 S.W.2d 386, 388 (Mo.App.1980). The officer testified he was licensed to operate a breathalyzer by the Missouri Division of Health and his permit was offered into evidence. The state sought and received without objection judicial notice of the Missouri Code of State Regulations specifically 13 C.S.R. 50-140 which pertains to the Missouri Division of Health and its rules for analyzation of breath by the breathalyzer 900 devices. State v. Sinclair, 474 S.W.2d 865, 868 (Mo.App.1971). The test results for admission as evidence were properly qualified and received as evidence of Johnson’s state of intoxication.

Appellant’s Point II is denied.

For his third point, appellant argues that Instruction Number Seven was not supported by competent evidence showing appellant’s Missouri operator’s license was revoked. As evidence of the revocation, the state introduced a copy of the appellant’s driving record, certified by the Custodian of Records of the Driver’s License Bureau of the Missouri Department of Revenue. The exhibit shows in part:

Chariton County 11/23/82 Convicted 12 points
Driver’s Lie. 12/08/82 Revoked 1 year

The state also introduced a certified copy of the appellant’s conviction on November 23, 1982, for driving while his license was revoked. Appellant admitted the conviction. At the time of his arrest for the present offense, Officer Link asked the appellant for his license and the appellant responded, “No, I haven’t got any.”

According to § 302.302.1(5), RSMo 1978, twelve points are assessed to a person convicted of driving while under revocation. Under § 302.304.6, RSMo 1978, where an individual has accumulated 12 points in twelve months, the director shall revoke the driver’s license for one year. This is the law. Regardless of defendant’s claim that he was not notified of the December 8, 1982, revocation, all persons are presumed to know the law. Hartley Realty Company v. Casady, 332 S.W.2d 291, 295 (Mo.App.1960).

Appellant argues that the copy of his driving record was insufficient evidence to allow submission of the issue to the jury and that the state should have produced the order of revocation. However, in State v. Williamson, 668 S.W.2d 597, 599 (Mo.App.1984), the trial court properly admitted into evidence a certified copy of the defendant’s driving record for the purpose of showing he did not have a valid license. The certification was sufficient foundation.

Point III is denied.

Appellant next argues under Point IV, that the trial court erred in giving Instruction Number Seven because the instruction did not instruct the jury as to the culpable mental state of the appellant. The instruction includes all elements for the offense of driving while license revoked as set forth under § 302.321 RSMo 1978, and reads:

As to Count II, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about August 21, 1983, in the County of Chariton, State of Missouri, the defendant operated a motor vehicle and
Second, that at said time the defendant’s license and privilege to drive a motor vehicle on the highways of the State of Missouri was revoked,
then you will find the defendant guilty under Count II of driving while license revoked.

The trial judge refused to submit appellant’s tendered Instruction A:

The Court instructs the jury that you must find the defendant not guilty of Count II of the information if you do not find and believe, beyond a reasonable doubt, that defendant had knowledge his license and privilege to drive a motor vehicle on the highways of the State of Missouri was revoked at the time described in evidence.

Appellant cites § 562.021.2, RSMo 1978, for his proposition that even where the elements of an offense do not expressly proscribe a culpable mental state, a culpable mental state is nonetheless required. However, § 562.021.4 provides, “Knowledge that conduct constitutes an offense, or knowledge of the existence, meaning or application of the statute defining an offense is not an element of an offense unless the statute clearly so provides.” (Emphasis added.)

Appellant was driving a motor vehicle during a period when his license was revoked. He knew he was driving and on November 23, 1982, he had been convicted of an offense punishable by the assessment of points sufficient for revocation.

Point IV is denied.

Appellant’s argument under Point V is substantially similar to Point IV.

Incorporating by reference his argument under Point IV, he argues the court erred by failing to instruct the jury as to his culpable mental state in driving a vehicle with license plates not registered to the said vehicle. The instruction pertaining to Count III which was submitted to the jury specifically sets forth the elements of the offense contained in § 301.320. The statute does not include the element that defendant knows he is committing an offense.

The vehicle was registered to appellant and his son. Appellant attempted to interject the issue that perhaps his son had failed to transfer the plates. He offered to prove he had no knowledge of any irregularity concerning the plates and the trial court refused the offer. Section 301.320 is specific: “No person shall operate a motor vehicle ... on which there is displayed on the front or rear thereof any other plate, ... bearing any number except the plate furnished by the director of revenue.... ” This was precisely the conduct of which appellant was charged and convicted.

Point V is denied.

For Point VI relied on appellant contends Judge Sloan erred in making the following comments to the jury.

The Court: That’s correct. The point I’m making is that the jury will remember the evidence that they previously heard concerning the license on that night in question.
(By Mr. Wheeler) Did you have this license on August 20th of 1983?
Mr. Midyett: Objection, Your Honor, for the same reasons I have previously enunciated.
The Court: I am going to overrule the objection at this time, whether or not he had it. He didn’t have it on his person.
The jury will remember that.
(Proceedings held at the bench.)
Mr. Wheeler: We object to the Court commenting on the evidence. We object to the Court telling the jury and making the statement in the presence of the jury, that the Court will remember that the Defendant stated he didn’t have it on him. That is a direct comment on the evidence and improper, and we ask for a mistrial.
The Court: Overruled.

The judge commented correctly on his recollection of the challenged testimony when he ruled upon the admissibility of the evidence and his reasoning on which the ruling was based. He directed his remarks to counsel, not to the jury, and the jury would have so understood. State v. Phelps, supra. Certainly nothing can be read into the trial court’s comments that would indicate a bias, prejudice or hostility towards the appellant such as to prejudice the minds of the jury and deprive him a fair trial. State v. Underwood, 642 S.W.2d 658, 660 (Mo.App.1982); State v. Jones, 558 S.W.2d 242, 246 (Mo.App.1977).

Appellant’s Point VI is denied.

Judgment affirmed.

All concur

      . Though Officer Link is a deputy sheriff in Chariton County, Chariton County does not have the facilities to give him this information after midnight.


author: PER CURIAM.

text:
    GREEN HILLS PRODUCTION CREDIT ASSOCIATION, Respondent, v. Charles E. BLESSING and Lois Lee Blessing, Appellants.
    No. WD 35967.
    Missouri Court of Appeals, Western District.
    March 12, 1985.
    Kenneth C. Hensley, Gallatin, for appellants.
    R.E. Moulthrop, Bethany, for respondent.
    Before CLARK, P.J., and SOMERVILLE and KENNEDY, JJ.
   ORDER

PER CURIAM.

Appeal from judgment for plaintiffs entered upon jury trial in action to recover on promissory notes.

Judgment affirmed. Rule 84.16(b).


author: FONES, Justice.

text:
    Glenn H. HALL, Appellant, v. AMERICAN FREIGHT SYSTEM, INC., Appellee.
    Supreme Court of Tennessee, at Nashville.
    March 25, 1985.
    Pat Nichol, Antioch, for appellant.
    Barry L. Howard, Gracey, Maddin, Cow-an & Bird, Nashville, for appellee.
   OPINION

FONES, Justice.

This is a worker’s compensation case in which the trial court, after considering all the evidence, denied plaintiffs claim for permanent partial disability.

On November 1, 1982, Glenn Hall, a 61-year-old truck driver employed by American Freight System, was driving alone in defendant’s truck between St. Louis and Louisville when the truck allegedly hit a series of defects in the highway causing plaintiff to repeatedly strike his head on the top of the cab. Plaintiff maintains that as a result of this November 1 incident he suffered an injury to his cervical spine and neck and that he is permanently disabled and entitled to worker’s compensation benefits.

The determinative issue on this appeal is whether there is any material evidence to support the finding of the chancellor that plaintiff was not permanently disabled as a result of the November 1 accident. Issues as to the causation and permanency of an injury are questions of fact, and the findings of the chancellor on these issue are binding on the Supreme Court if supported by any material evidence. Seay v. Town of Greenville, 587 S.W.2d 381, 383 (Tenn.1979). Because there is material evidence to support the findings of the trial court, we must affirm. T.C.A. § 50-6-225(e).

Plaintiff was initially examined by a neurosurgeon, Dr. William Moore, on De-cember 9, 1982. Dr. Moore, based primarily on a history of no prior neck or back problems and on plaintiff’s limitation of movement, estimated a 19% impairment of function to the body as a whole for the period between December 1982 and February 1983. Dr. Moore, however, later expressed reservations about the reliability of his findings based on his final examination of Mr. Hall on January 24, 1984. Dr. Moore stated that if he had known of plaintiff’s history of back-related problems he would have been less sure as to the causation of plaintiff’s alleged injury. Dr. Moore further stated that plaintiff appeared to be dramatizing his complaints, indicating that at the January 24 examination, Mr. Hall “stood and walked in a manner that was substantially different from what he had been observed to walk into the office area from the elevator a short time prior to the examination.” Dr. Moore, therefore, concluded that he could not make an accurate estimate of impaired function because his earlier findings were not sufficiently reliable, and that he could not ascribe plaintiff’s symptoms to any specific condition.

Dr. Warner Wood, an Atlanta orthopedic surgeon, examined plaintiff on September 2, 1983, at the request of defendant-employer. Dr. Wood stated that there were no objective findings of permanent physical impairment, but he estimated a 5% physical impairment to the body as a whole, based solely on subjective complaints. Dr. Wood, however, like Dr. Moore, expressed reservations as to the reliability of the subjective findings, and after an extensive explanation in which he detailed his reasons why he questioned plaintiff’s condition, concluded that Mr. Hall was attempting to exaggerate the severity of his symptoms.

The chancellor also considered evidence that plaintiff had a number of health problems which made it difficult to conclude that his disability resulted from the November 1 accident. Not only did Mr. Hall suffer from arthritis, emphysema and cancer, but, most importantly, plaintiff also had a history of back and neck pain that he concealed from both the treating physician, Dr. Moore, and the examining physician, Dr. Wood. There is material evidence to support the factual conclusions reached by the chancellor, and we, therefore, affirm.

Appellee has asserted that this is a frivolous appeal under T.C.A. § 27-1-122. We agree that this is an appropriate case for the award of damges for a frivolous appeal because the issues raised by appellant were issues of fact with abundant material evidence supporting the chancellor’s findings. Liberty Mutual Ins. Co. v. Taylor, 590 S.W.2d 920 (Tenn.1979).

The judgment of the trial court dismissing the claim for worker’s compensation benefits is affirmed, and the case is remanded to the trial court for a determination of damages for a frivolous appeal. Costs are adjudged against plaintiff.

COOPER, C.J., and BROCK, HARBI-SON and DROWOTA, JJ., concur.

      . Although the complaint asserts that plaintiff struck his head on three separate occasions, Mr. Hall testified at trial that he struck his head "4, 5 or possibly 6 times.” This is just a portion of plaintiffs testimony, from which the chancellor justifiably questioned plaintiffs credibility. The trial court's memorandum opinion also noted that in his complaint the plaintiff stated the incident occurred at Mt. Vernon, Illinois, but he told his supervisor that it occurred near Louisville.

      . Although plaintiff did not relate a history of prior neck or back problems to Dr. Moore, in response to defendant’s Rule 36 requests for admissions, Mr. Hall admitted a long history of back and neck problems prior to the November 1 incident.


author: DUNCAN, Judge. /s/ Mark A. Walker Presiding Judge /s/ Joe D. Duncan Judge /s/ John K. Byers Judge

text:
    STATE of Tennessee, Appellee, v. Frank James PENDER, Appellant.
    Court of Criminal Appeals of Tennessee, at Jackson.
    Nov. 28, 1984.
    Opinion on Petition to Rehear Dec. 19, 1984.
    Permission to Appeal Denied by Supreme Court March 4, 1985.

      Edward Witt Chandler, Memphis, for appellant.
    W.J. Michael Cody, Atty. Gen., William Barry Wood, Asst. Atty. Gen., Nashville, Clayburn Peeples, Dist. Atty. Gen., A.H. Schoonover, Asst. Dist. Atty. Gen., Trenton, for appellee.
   OPINION

DUNCAN, Judge.

The defendant, Frank James Pender, was convicted of aggravated kidnapping and aggravated rape, receiving Range II sentences of fifty (50) years for each offense. His sentences are to be served concurrently-

In this appeal, the defendant contests the evidence, says both of his convictions cannot stand, insists that the aggravated rape statute is unconstitutional, complains that one of the jurors should not have sat on his case, alleges error concerning the admission into evidence of his statement, his post-arrest silence and his green trousers, says the trial court erred in failing to charge the missing witness rule, and contends his sentences were improperly imposed. We find merit to his sentencing complaint, but find no reversible error incident to his other complaints.

According to the testimony of the eighteen (18) year old victim in this case, on December 16, 1982, at approximately 11:30 p.m., she and her fiancé, Darrell McCready, were travelling through Tennessee on Interstate 40 when their car broke down at the edge of Fayette County. Two black men, the defendant and James Shaw, stopped to ask if help was on the way. They left a few minutes later. Since they could not get assistance until the next morning, the victim and McCready decided to sleep in the car.

The defendant and Shaw returned a little later and told McCready to open the door or they would force it open because they wanted to “borrow his old lady for a little bit.” After McCready got out of the car, the victim was forced into the men’s truck and driven down the road into Haywood County. The defendant and Shaw took the victim’s clothing off and took turns raping her while holding her down. The victim fought with the men and said that some of her hair was ripped out because it had gotten caught in the window handle when she tried to jump out the window.

About one-half (½) hour later, the victim was able to get out of the truck. Her assailants threw her clothes out on the road and left. The victim went to a nearby house where she called the police. Later that night, the victim identified a truck at the defendant’s house as the one in which she had been raped. She also identified the defendant as one of the men who kidnapped and raped her.

The victim further testified that she did not know what happened to McCready after he got out of the car. He did not testify at the trial.

Sam Croom testified that at approximately 2:00 a.m., the victim knocked on his door and said that she had had a wreck and killed her cat. After he told the victim to go to another house, she became very upset and started crying and yelling for help. The police were then called. Mr. Croom said that the victim was very upset when she came to his house.

Dr. David Stewart examined the victim at 6:00 a.m. He testified that her vulva was moderately swelled and that he found spermatazoa in her vagina. He observed a knot on the back of her head, many scratches, and an abrasion on her toe. Dr. Stewart described the victim as upset and nervous.

Officers Jeffrey Holt, Lemuel Marlar, and Phillip Grey all testified that the victim described the truck in which the rapes had occurred and later identified it as the one in front of the defendant’s house. After the defendant gave his permission, the officers opened the truck and discovered hair, the same color as the victim’s, entangled around the window handle. The defendant was arrested at that time.

Lucien English, Special Agent for the Tennessee Bureau of Criminal Investigation, interviewed the victim the next morning and described her as emotionally drained, highly nervous, and fidgety. He further testified that he interviewed and took a sworn statement from the defendant later that day. In his statement, the defendant said that he and Shaw picked the victim up because they thought they wanted to have sex with her. According to the statement, the victim entered the truck on her own free will and took off her clothes herself. The defendant said that he got out of the truck and did not have intercourse with the victim.

A serologist with the Tennessee Bureau of Investigation Crime Laboratory, conducted tests on the pants taken from the defendant and discovered the presence of blood stains and spermatazoa. The serologist also found the presence of spermata-zoa on the victim’s underwear and jeans.

James Shaw testified as a State’s witness. He testified that he had been indicted with the defendant in this matter, but that he had negotiated a plea of guilty. Shaw stated that the victim was not forced into the truck but that after she got in, she “hollered a few times,” and tried to get out. Shaw tried to have intercourse with the victim, but said that the defendant told him to get out of the way. Shaw further testified that the defendant removed the victim’s clothes and that when the victim begged them not to hurt her, the defendant told her that if she cooperated, they would not hurt her.

From the foregoing summary of the evidence, it is clear that the jury was well warranted in finding the defendant guilty beyond a reasonable doubt of aggravated kidnapping and aggravated rape. The evi-dentiary tests outlined in T.R.A.P. 13(e) and Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) are fully satisfied by the proof in this case.

Further, the defendant’s argument that the evidence failed to show any personal injury within the meaning of T.C.A. §§ 39-2-603, 39-2-602, and 39-2-101 is without merit. The evidence that the victim sustained bodily injuries was clearly showed by the proof.

Additionally, the defendant’s venue complaint is not meritorious. The evidence showed that the victim was abducted in Fayette County and taken to Haywood County where she was raped. With respect to the offense of kidnapping, there is wide latitude in trying a defendant in either county where the victim is taken from one county to another county. State v. Holtcamp, 614 S.W.2d 389 (Tenn.Cr.App.1980). We find that the evidence clearly established Haywood County as the proper county of venue for both offenses.

Further, contrary to the defendant’s insistence, the defendant’s convictions for both aggravated kidnapping and aggravated rape were proper. State v. Black, 524 S.W.2d 913 (Tenn.1975); Morgan v. State, 582 S.W.2d 94 (Tenn.Cr.App.1979).

Also without merit is the defendant’s argument that the aggravated rape statute is unconstitutionally vague. Our Supreme Court has previously ruled that this statute is not unconstitutionally vague. State v. Wilkins, 655 S.W.2d 914 (Tenn.1983); State v. Thomas, 635 S.W.2d 114 (Tenn.1982).

Next, the defendant contends that he was denied the right to a fair trial because one of the jurors was a Brownsville, Tennessee police officer.

Juror Claude H. Gibbs testified post-trial that he was an officer with the Brownsville Police Department; however, he was not a regular police officer, only a reserve officer who worked when he was called in on special occasions. He testified that in his reserve officer capacity, he had no participation in the investigation of the case. Also, he had neither talked to any of the officers who were witnesses in the case nor talked to any of the other people involved. He stated that his position as a reserve officer did not influence his decision in the case. He acknowledged to defense counsel that if a policeman testified in court, he would believe him under oath.

The record shows that on voir dire neither the defense nor the State elicited from juror Gibbs his officer status with the Brownsville Police Department. We have reviewed juror Gibbs’ voir dire examination, and nothing therein indicates that he would be prejudiced or biased against the defendant. He affirmatively acknowledged that he could be fair and impartial.

The constitutional guaranty of trial by an impartial jury requires that the jury be free of even a reasonable suspicion of bias and prejudice. Hyatt v. State, 221 Tenn. 644, 430 S.W.2d 129 (1967). However, a juror is not incompetent merely because he is a member of a particular order, association, or other organization. State v. Mason, 623 S.W.2d 126 (Tenn.Cr.App.1981).

In our view, juror Gibbs’ status as a reserve police officer, standing by itself, does not lead to the conclusion that he was a biased or prejudiced juror, and as previously stated, there is nothing in the record to indicate bias or prejudice on his part. The fact that he stated post-trial that he would believe a police officer on oath does not demonstrate bias or prejudice when it is considered that all witnesses are presumed to tell the truth. See Hull v. State, 553 S.W.2d 90, 93 (Tenn.Cr.App.1977).

We find that the defendant has not carried his burden to show that juror Gibbs was in some way biased or prejudiced. Bowman v. State, 598 S.W.2d 809, 812 (Tenn.Cr.App.1980); Clariday v. State, 552 S.W.2d 759, 772 (Tenn.Cr.App.1976).

Also, whether the State was aware of juror Gibbs’ officer status and should have disclosed such to the defendant is of no significance. Both the State and the defendant had a full opportunity on voir dire to elicit whatever information they desired about juror Gibbs, and we are aware of no authority that would have required disclosure of this information by the State, even if the State had been aware of it.

Further, since the record shows no bias or prejudice on the part of juror Gibbs, then he was competent to sit on the case. The record demonstrates that the defendant received a fair trial free from any bias or prejudice. Under these circumstances, and contrary to the defendant’s further argument, it may not be said that his own counsel’s failure to elicit on voir dire juror Gibbs’ officer status would amount to ineffective representation on the part of his counsel.

We find no merit to the defendant’s complaint about juror Gibbs.

The defendant raises additional issues concerning the admission of certain evidence.

The defendant says that his green trousers were improperly admitted into evidence, arguing that they were illegally seized. The police seized, without a search warrant, the trousers from the defendant while he was in jail. This occurred one or two days after his arrest.

In United States v. Edwards, 415 U.S. 800, 804-809, 94 S.Ct. 1234, 1237-1239, 39 L.Ed.2d 771 (1974), the Court held that the warrantless seizure of an individual’s clothing may be considered as a reasonable, hence constitutional, search when made while he is in custody following his arrest. See also State v. Barger, 612 S.W.2d 485, 491 (Tenn.Cr.App.1980).

We find that the defendant’s trousers were properly admitted into evidence.

Likewise, we find that the defendant’s statement to the police was properly admitted into evidence. The defendant was given his Miranda admonitions and he signed a waiver of rights form. The evidence shows that the statement was given voluntarily. Further, the statement was not the product of an illegal arrest, as is argued by the defendant. The evidence shows that the defendant was legally arrested. The evidence clearly supports the trial court’s finding that the statement was admissible in evidence.

Further, we are in agreement with the defendant that his right to post-arrest silence was violated when the State was permitted to elicit from Officer Lemuel Ma-lar that at the time the defendant was arrested, the defendant made no statement. This was error. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Braden v. State, 534 S.W.2d 657 (Tenn.1976). However, in view of the overwhelming proof showing the defendant’s guilt, we find this error to be harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see also Lyons v. State, 596 S.W.2d 104 (Tenn.Cr.App.1979).

Another complaint by the defendant is that the trial court erred in failing to charge the missing witness rule regarding the absence of Darrell McCready, the victim’s former fiancé.

When the matter was discussed, State’s counsel explained that the State had subpoenaed McCready who lived out of the State, and that the State had talked to him, receiving' assurances from him that he would be present. This demonstrates that the State had made a good faith effort to produce the witness, and obviously the proof from the other witnesses was such that had he been present, he certainly would not have given testimony unfavorable to the State and in favor of the defendant. Clearly, under all the circumstances, the absence of this witness did not create an inference that his testimony would have been unfavorable to the State’s case.

We find that the court did not err by refusing to give this instruction.

Finally, we find merit to the defendant’s complaint about his Range II sentences.

Under the Criminal Sentencing Reform Act, Range II sentences are reserved for one who is found by the court to be a persistent offender and/or who is convicted of an especially aggravated offense. The sentence for a standard or especially mitigated offender shall be to a term within Range I. T.C.A. § 40-35-109(c) (Supp. 1984).

Further, the Reform Act requires the State to file before trial a notice of intent to seek enhanced punishment if the State believes that “a defendant should be sentenced to an enhanced punishment for a second or subsequent violation of the crime charged or, for an especially aggravated offense or as a persistent offender. T.C.A. § 40-35-202(a) (1982).

The State did not file before (or after) trial the notice as required by T.C.A. § 40-35-202(a). Therefore we are obligated to find that the trial court was without authority to impose Range II sentences upon the defendant. In view of this finding, we need not consider the defendant’s additional argument that his sentences were excessive.

Accordingly, we affirm the defendant’s convictions, but we remand the case to the trial court for a new sentencing hearing, at which time the trial court shall fix the defendant’s sentences in Range I at such terms as the trial court, in its discretion, finds appropriate.

Affirmed and remanded for further proceedings not inconsistent with this opinion.

WALKER, P.J., and BYERS, J., concur.

ORDER

The State has filed a petition to rehear requesting us to reconsider our ruling that the State is obligated to comply with the notice requirements of T.C.A. § 40-35-202(a) (1982) before a Range II sentence can be imposed upon a defendant. This we decline to do. The Legislature has expressly mandated this requirement and we see no reason why the State should be relieved of its obligation to follow the law.

The petition to rehear is dismissed. It is so ordered.

/s/ Mark A. Walker Presiding Judge

/s/ Joe D. Duncan Judge

/s/ John K. Byers Judge


author: BYERS, Judge.

text:
    STATE of Tennessee, Appellee, v. Meredith Lemont WILSON, Appellant.
    Court of Criminal Appeals of Tennessee, at Nashville.
    Dec. 21, 1984.
    Permission to Appeal Denied by Supreme Court March 4, 1985.

      William L. Shulman, William P. Purcell, III, Sr. Asst. Public Defenders, Nashville, for appellant.
    W.J. Michael Cody, State Atty. Gen. & Reporter, Kevin Steiling, Asst. State Atty. Gen., John Zimmermann, Jack Seaman, Asst. Dist. Attys. Gen., Nashville, for ap-pellee.
   OPINION

BYERS, Judge.

The defendant was convicted of burglary and grand larceny. In a bifurcated hearing he was found to be an habitual offender and sentenced to life imprisonment.

With regard to the base charges, the defendant says that evidence seized from his home should have been suppressed because of an illegal search, that an officer was allowed to give hearsay evidence which described a person seen selling items taken in the burglary, and that the manner of proving the known fingerprints of the defendant was prejudicial. With regard to his conviction and sentence as an habitual criminal, the defendant says that the district attorney general’s practice of indicting all persons who are eligible for prosecution as an habitual offender is unconstitutional, that one of the prior offenses was erroneously submitted to the jury, that previous felony convictions were allowed in evidence without any showing the defendant had waived his constitutional rights when he pled guilty thereto, that the trial court erroneously instructed the jury that a previous conviction which was not an infamous crime or enumerated in the Habitual Offender Act could be so considered, that he was unduly restricted in showing mitigating evidence, and that the Tennessee Habitual Offender Act as applied to him constitutes cruel and unusual punishment.

The judgment is affirmed.

The defendant does not contest the sufficiency of the evidence, which shows that a house was broken into and several things were stolen therefrom. An overnight case stolen from the house was found on the premises where the defendant lived, and a fingerprint which matched the defendant’s fingerprint was found on a bottle in the burgled residence. There is ample evidence to show the defendant guilty of the burglary and larceny, and also to show the defendant qualified as an habitual offender. T.R.A.P. 13(e).

The defendant bases his claim of an illegal search and seizure upon the discovery of an overnight case, which was taken in the burglary, by officers executing an arrest warrant upon the defendant at his home. In the course of the arrest, an officer opened a chifforobe, and the case was found inside.

The burglary occurred on July 23, 1982, and after a month of investigation the officers determined there was probable cause to believe the defendant committed the crime. They obtained an arrest warrant charging the defendant with the offense and went to the defendant’s residence to execute the warrant.

The evidence shows the defendant lived in a high crime area, and the officers approached the home cautiously to protect themselves from violence if this should occur. When they entered the home, they looked in various rooms and closets to ensure no one was hiding. The officers testified this was their standard procedure in high crime areas, especially when executing felony warrants.

The defendant, who lived with his sister and her boyfriend, was apprehended as he came from the bathroom. He was taken into the bedroom which he occupied, ordered to sit on the floor, and handcuffed.

Located in this room was a chifforobe, which the evidence shows was large enough to conceal a person. When one of the officers opened the chifforobe to see if anyone was inside, another officer observed an overnight case, which fit the description of a case taken in the burglary, on the floor of the chifforobe. The case was seized and identified at trial by the owner of the burgled premises as being the case taken from her home.

The officer in charge of the investigation testified he did not obtain a search warrant to look for the things stolen in the burglary because it was his experience that thieves generally dispose of stolen goods rather quickly and he had no reason to believe there would be anything left at the defendant’s residence. Further, he testified that informants had told him that articles fitting the description of the things stolen had been sold.

Each of the officers testified that their action in looking into the closet and the chifforobe was for the purpose of protecting themselves from attack from anyone who might be lurking therein. There is no evidence that the officers opened or searched any drawer or other places too small to conceal a person. The items taken from the burgled premises included a pistol and several pieces of jewelry, which could have been concealed in such places.

The defendant bases his primary attack upon this seizure on the rule in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), which holds that officers may search an area where a person arrested might reach to obtain a weapon to use upon the officers but not areas which are beyond this reach. The defendant insists that at the time the chifforobe was opened he was handcuffed and seated on the floor and posed no threat to the officers. He argues, therefore, that the opening of the chifforobe meets no reasonable exception to the prohibition on warrantless searches.

If the validity of the police action depended solely upon the Chimel rule, the defendant’s argument would be persuasive. However, we are of the view that, under the facts in this case, the lawfulness of the officers’ actions depends upon whether their search was justified as a protective sweep of the premises when the arrest was made.

In United States v. Hatcher, 680 F.2d 438 (6th Cir.1982), the Court recognized that protective searches are valid if there is at the time some basis for reasonable belief that there may be other persons on the premises who could pose a danger to the officers. The Court went on to say: “Courts should be cautious ‘in limiting the ability of police officers to protect themselves as they carry out missions which routinely incorporate danger,’ United States v. Coates, 495 F.2d 160, 165 (D.C. Cir.1974). Nonetheless, officers must be able to articulate justification for a war-rantless search.” Id. at 444.

As we have said, the arrest was made in a high crime area, the arrestee was a previously convicted felon, and more than one person occupied the premises, including one person who was not apparently present at the time and who was said, by the occupant, to be away. Further, the officers did not believe any of the stolen property was present on the property, and the manner of the looking only into areas where a person could be concealed and not in drawers, etc., where the stolen merchandise could have been concealed convinces us that the protective sweep was not used as a subterfuge to search for evidence of the defendant’s guilt. The evidence was in the plain view of the officer, and its discovery was clearly inadvertent.

No Tennessee case has adopted the protective sweep rule set forth in Hatcher. However, we are persuaded that the rule is reasonable. When the facts and circumstances show the action of the officers conducting such a sweep is based upon reasonable, articulable facts relating to their safety, the protective sweep exception should be permitted, and we adopt it as the rule to be applied in such circumstances as are present in this case.

The defendant says the state was erroneously allowed, in direct examination, to present hearsay evidence through the investigating officer. The record more accurately reflects that the testimony complained of came out on redirect examination of the officer and was, in our view, a legitimate response to the defendant’s cross-examination. It is our further view this testimony was not hearsay.

In the cross-examination of the officer, the defendant vigorously attempted to show that his purpose in going to the defendant’s residence was to search for the stolen property. The officer insisted he did not do so, nor did he have any reason to believe the goods were located there.

On redirect, the officer testified that he believed the property was not on the premises because three people had told him a young black male was seen selling property which fit the description of the property taken shortly after the burglary. The officer on redirect did not further describe the person seen selling the property. On recross-examination, the defendant brought out the description of the person.

This testimony was relevant on the state of mind of the officer at the time he entered the defendant’s house, an issue raised by the defendant, and as such was not offered to show that the defendant was selling the property. The witness made no attempt to assert the defendant sold the property or to assert the property was sold.

In short, this evidence was not offered to show the truth of the matters therein and thus is not hearsay evidence. See Laird v. State, 565 S.W.2d 38 (Tenn.Cr.App.1978).

Further, the defendant was not entitled to an instruction on the inference to be drawn from the absence of material witnesses, namely, those persons who had reported the selling of the stolen goods.

To justify a missing witness instruction, the evidence must show that one of the litigants has peculiarly available to him a witness with peculiar knowledge of the material facts at issue, and that the litigant having such witness failed to call the witness or give reasonable explanation for failure to do so. In such event the other party is entitled to have the court instruct the jury that they may infer that had the witness been called he would have given evidence detrimental to the party having such witness available.

There is nothing in the context of the evidence in this case which would require the court to give such instruction. The testimony about what these witnesses said to the officers was introduced on a collateral issue. Furthermore, the cross-examination by the defendant shows that these witnesses’ testimony, had they been called, would have been adverse to the defendant because they would have described him as the person seen selling the stolen merchandise.

The defendant says that he was denied his constitutional right to confront the witnesses by the manner in which the state showed an alleged fingerprint of the defendant, with which the fingerprint found at the scene of the crime was compared. He did not attack the expertise of the witness who made the comparison, when the witness was submitted as an expert. The jury weighed his credibility and apparently accepted his testimony.

The state offered an old fingerprint card which bore the name of the defendant and an identification number. The evidence shows that the police assign an identification number to a person who is arrested, and this number is used thereafter on any subsequent arrest of that person. The state further introduced a photo mug shot of the defendant which was assigned the same identification number as the one shown on the card.

The defendant relies upon State v. Armes, 607 S.W.2d 234 (Tenn.1980), and State v. Henderson, 554 S.W.2d 117 (Tenn.1977), to assert a confrontation deprivation.

In Armes the Court held it was impermissible to allow a witness to give a recital of previous testimony of a witness who was unavailable at a subsequent trial. In Henderson the Court held it was error to introduce the results of a test conducted to determine the nature of a substance without having present the person who conducted the test. We think the situation before us is substantially different from these cases and that the issue turned on whether the fingerprint card was admissible in the nature of business records.

In State v. Caldwell, 671 S.W.2d 459 (Tenn.1984), our Supreme Court held that dental records made by a person who did not testify were admissible to identify the remains of a homicide victim and that the introduction of these records did not violate the confrontation clause. The Court distinguished this evidence from the laboratory report disallowed in Henderson on the basis that the dental records were not prepared specifically for the litigation at hand as was the toxicology report in Henderson, and that these records were admissible in the nature of business records.

In the case before us, the fingerprint card was not prepared for the specific litigation of this case. The evidence shows the manner in which records were kept, and in our view the introduction of this card did not deny the defendant the constitutional right of confrontation.

The photograph of the defendant which was introduced did not raise a confrontation question and we are unable to perceive how this photograph unduly prejudiced the defendant or denied him a fair trial.

This photograph did not bear a date or indicate the defendant was previously arrested. The fact that it fits the description of the person seen selling the stolen merchandise gives the defendant no right to relief because it was he, not the state, who introduced this description into the case.

The defendant says he was deprived of due process of law because the district attorney general seeks indictments on all persons who qualify under the Habitual Offender Act for prosecution and because the trial court would not allow him to show mitigating circumstances to the jury in the habitual offender phase of the prosecution.

The defendant relies upon two cases from the state of Washington, State v. Pettitt, 93 Wash.2d 288, 609 P.2d 1364 (1980), and State v. Rinier, 93 Wash.2d 309, 609 P.2d 1358 (1980), which held that prosecutorial authorities are required to exercise discretion in determining who is to be indicted as an habitual offender and that a policy of indicting all is unconstitutional. Whatever the state of Washington chooses to do on this is, of course, for them to determine. We do not find their rule persuasive and do not adopt their view.

On the complaint of not allowing ■the defendant to show mitigating circumstances to the jury, this Court has previously held that a defendant is not entitled to present such evidence because it is irrelevant. State v. Duffel, 665 S.W.2d 402 (Tenn.Cr.App.1983).

The defendant claims that a conviction for grand larceny should not have been introduced because the state did not affirmatively show that he had waived the right to be indicted by the grand jury on the charge to which he pled guilty. The records introduced show the following: a motion for waiver of jury, signed by appellant; a waiver of appeal, signed by appellant; a plea of guilty, signed by appellant; a criminal warrant, on the bottom of which is handwritten “Deft Waived Gr Jury;” and a minute entry, on which is printed in the margin, “Deft Waived Gr. Jury Action.”

Neither at trial nor on appeal has the defendant asserted that he did not waive grand jury action on this charge. We are not dealing with a silent record on these matters.

The defendant has failed to show he is entitled to relief on this basis.

The defendant further claims a larceny conviction was inadmissible because the warrant did not allege sufficient basis for a grand larceny conviction. Again, the record shows the defendant, with counsel, entered a plea of guilty to grand larceny in that case and he did not at trial or here make any claim to the contrary. The record supplies any deficiency claimed and entitles the defendant to no relief.

The defendant’s further claim that the warrant was not properly issued fails for the reasons above stated.

The defendant further claims the introduction of guilty pleas on previous felonies was erroneous because there was no affirmative showing of voluntary waiver of constitutional rights and that this ran afoul of the rule in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). We do not have a Boykin situation in this case. In Boykin the record was silent as to waiver of constitutional rights at the. guilty pleas. In the case before us this record as to waiver of constitutional rights is not silent.

In Boykin the Court would not indulge a presumption of waiver on a silent record. In the case before us, we will not indulge a presumption of non-waiver on a record which is not silent. We note again that the defendant does not assert he did not knowingly waive his rights in these cases.

The defendant says he is entitled to a new trial because the trial judge instructed the jury that they could consider a previous conviction that did not qualify as an infamous crime or as an enumerated felony under the Habitual Offender Act.

The record shows the defendant had more than enough other felonies to qualify him as an habitual offender. Any error in the instruction was therefore harmless error beyond a reasonable doubt.

The defendant lastly attacks his conviction for being an habitual offender as being cruel and unusual punishment under the holding in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). In numerous cases, this Court has held that Solem v. Helm is not applicable to the Habitual Offender Act of this state because our statutes provide for parole eligibility, unlike the act under scrutiny in So-lem. In reliance on Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) which was reaffirmed in Solem, we adhere to those holdings.

DWYER and O’BRIEN, JJ., concur.


author: GONZALEZ, Justice.

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Petitioner, v. Frederick SCHAEJBE, Respondent.
    No. C-3674.
    Supreme Court of Texas.
    April 3, 1985.
    Mike Driscoll, County Atty., John W. Ma-honey, Asst. County Atty., Houston, for petitioner.
    Littleton, Scherbarth & Associates, Larry D. Hatley, Houston, for respondent.
   GONZALEZ, Justice.

This is an appeal from a driver’s license suspension proceeding. The sole issue is whether a county court is authorized to grant probation to a habitual violator of state traffic laws whose license has been suspended and probated after the probation has been revoked pursuant to Tex.Rev.Civ. Stat.Ann. art. 6687b, § 22(f). We hold that the county court is not so authorized.

On August 16, 1982, respondent, Frederick Schaejbe, was adjudged a habitual traffic violator. A Houston municipal court suspended Schaejbe’s license, but probated the suspension. This decision was not appealed.

On February 7, 1983, Schaejbe committed a moving traffic violation for which he was convicted. The municipal court found that this was a violation of the terms of his probation and suspended Schaejbe’s license. Schaejbe then appealed to the Harris County civil court at law. In a de novo proceeding Schaejbe stipulated that he violated his probation. The county court ordered the suspension of his license for twelve months, but the suspension was again probated. The Texas Department of Public Safety appealed, contending that after proof of a violation of probation, the county court had no power to again probate the suspension. The court of appeals affirmed the second probation. 681 S.W.2d 211. We disagree with the court of appeals’ interpretation of the statute.

The original August 1982 judgment suspending the license but probating the suspension was not appealed. Article 6687b § 22(c) provides: “If any licensee ... fails within thirty (30) days to institute or prosecute a suit to set such suspension aside, then said final ruling and decision of the Department shall be binding upon all the parties thereto.” Schaejbe did not appeal from the suspension or the terms of the probation. That decision was final. When the county court determined that the terms of probation had been violated, the consequences were determined by the original ruling.

The court of appeals held that section 22(e) gives the county court power, on de novo review of a 22(f) probation revocation proceeding, to again impose probation. This interpretation would create a conflict with the language of section 22(c) just cited, as the alternative of further probation was not possible under the first ruling. Further conflict with this theory is found within the provisions of subsection (f) itself, where it states that:

[t]he issue at the hearing shall be whether a term or condition of the probation has been violated. The officer or judge presiding at the hearing shall report his findings to the department and if the finding is that a term or condition of the probation is violated, the department shall revoke or suspend the license as determined in the original hearing.

Tex.Rev.Civ.Stat.Ann. art. 6687b, § 22(f).

When an apparent conflict exists, it is the duty of the courts to resolve inconsistencies and effectuate the dominant legislative intent. Southern Canal Co. v. State Bd. of Water Engineers, 159 Tex. 227, 318 S.W.2d 619 (Tex.1959). Moreover, “[i]n all interpretations, the court shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil, and the remedy.” Tex.Rev. Civ.Stat.Ann. art. 10(6).

Subsections (e) and (f) were not part of section 22 as originally enacted. Before 1969, there was no statutory authority to probate a license suspension. The legislature attempted to provide an alternative to this sometimes harsh result and enacted subsection (e), permitting probation, and subsection (f), setting out the procedures and consequences of violating probation. The intent of the legislature is clear. “Subsection (f) sets up procedures to follow if a term or condition has been violated. Penalty is reinstatement of the original decision.” House Committee on the Judiciary, Bill Analysis, Tex.H.B. 363, 61st Leg. (1969) (emphasis added).

The right of appeal in a license suspension proceeding does not exist in the absence of statutory authority, since a driver’s license is not a right, but a privilege. Schwantz v. Texas Dept. of Public Safety, 415 S.W.2d 12 (Tex.Civ.App.—Waco 1967, writ ref’d). We hold that an appeal to a county court from a subsection 22(f) probation violation proceeding, although de novo, is nonetheless limited to the factual dispute indicated in 22(f), “whether a term or condition of the probation has been violated.”

This construction is in accord with the language of the statute and the intent of the legislature. We therefore reverse the judgment of the court of appeals and reverse the judgment of the county court insofar as it probates the license suspension. That portion of the county court’s judgment suspending the license is affirmed.


author: ROBERTSON, Justice. GONZALEZ, Justice,

text:
    BEAUMONT ENTERPRISE & JOURNAL et al., Petitioner, v. Clyde E. SMITH, Respondent.
    No. C-3517.
    Supreme Court of Texas.
    March 6, 1985.
    Rehearing Denied April 24, 1985.
    Fulbright & Jaworski, Royce R. Till, Jeff Dykes and Roger Townsend, Houston, for petitioner.
    Helm, Pletcher & Hogan, George E. Pletcher and J. Donald Bowen, Houston, for respondent.
   ROBERTSON, Justice.

Judge Clyde E. Smith sued the Beaumont Enterprise & Journal and its reporter, Linda Gilchriest, for libel. A jury trial ended in a mistrial; thereafter, the defendants moved for summary judgment, and the trial court granted their motion. Holding that there were fact issues presented, the court of appeals reversed the judgment of the trial court and remanded the cause for a new trial. 677 S.W.2d 176. We affirm the judgment of the court of appeals.

The article which forms the basis for Judge Smith’s libel claim was written by Linda Gilchriest and published in the Beaumont Enterprise and Journal. Judge Smith’s primary allegation is that the article accused him of selecting the grand jury panel and therefore that it accused him of illegal and unethical conduct. See Tex. Code Crim.Proc.Ann. arts. 19.01-19.41, setting forth the requirements for organization of a grand jury.

The issue on appeal is whether the defendants met their burden for summary judgment of showing there is no genuine issue of material fact and that their defense is established as a matter of law. Tex.R.Civ.P. 166-A; City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979); Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970). Every reasonable inference must be indulged in favor of the non-moving party, Judge Smith; and any doubts must be resolved in his favor. Hudnall v. Tyler Bank and Trust Company, 458 S.W.2d 183 (Tex.1970).

The defendants contend that, as a matter of law, the article was not defamatory, and that it was not reasonably capable of bearing the meaning Judge Smith attributes to it. We are of the opinion that the article contains statements which are at least ambiguous in their meaning. Thus, we cannot say that, as a matter of law, the article is not defamatory. It is for the jury to determine the meaning which the article would convey to an ordinary person. Denton Publishing Company v. Boyd, 460 S.W.2d 881, 884 (Tex.1970).

The defendants further contend that the record does not contain any proof of “actual malice.” Therefore, they argue that their defense is established as a matter of law because Judge Smith, as a public official, must prove as an essential element of his cause of action that a defamatory false statement was made with “actual malice.” See Doubleday & Co., Inc. v. Rogers, 674 S.W.2d 751, 753 (Tex.1984). “Actual malice” means “with knowledge that it was false or with reckless disregard of whether it was false or not.” Doubleday, 674 S.W.2d at 753, citing New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

For summary judgment, the burden is on the defendants to show the absence of actual malice. Jackson v. Cheatwood, 445 S.W.2d 513, 514 (Tex.1969). The defendants rely on Gilchriest’s affidavit that she believed the article to be factually accurate and true. Texas Rule of Civil Procedure 166-A provides that a summary judgment may be based on the uncontro-verted testimonial evidence of an interested party provided that the evidence is “clear, positive, direct, otherwise credible ... and could have been readily controverted.” Gilchriest’s affidavit as to her own state of mind is not evidence that could have been readily controverted; therefore it is not evidence that will support a summary judgment. See Wise v. Dallas Southwest Media Corp., 596 S.W.2d 533, 535-536 (Tex.Civ.App.—Beaumont 1979, writ ref’d n.r.e.); see also Lewisville State Bank v. Blanton, 525 S.W.2d 696 (Tex.1975).

The defendants have failed to establish that they are entitled to judgment as a matter of law. The fact issues which warranted a jury trial in the first instance remain as fact issues and they must be determined by a jury. Summary judgment was improper. We affirm the judgment of the court of appeals.

Dissenting opinion by GONZALEZ, J., in which SPEARS, J., joins.

GONZALEZ, Justice,

dissenting.

I respectfully dissent. The court is correct that the issue on appeal is whether the Enterprise established its defense as a matter of law to warrant the granting of its summary judgment. The court is incorrect, however, in holding that the Enterprise did not meet its burden of proof.

Judge Smith’s recovery for libel must be predicated upon a finding that the article was both defamatory and published with actual malice. The Enterprise’s only burden was to negate either element of Smith’s cause of action.

To publish with “actual malice” is to do so with knowledge that a statement of fact is false or with reckless disregard for its truth. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Malice may not be implied or presumed from the mere fact of publication or the falsity of the statement published. It must be supported by evidence in the record of subjective intent. See Foster v. Upchurch 624 S.W.2d 564, 566 (Tex.1981); El Paso Times, Inc. v. Trexler, 447 S.W.2d 403, 406 (Tex.1969).

The record is replete with evidence that Gilchriest was thorough in her research: she talked to county employees about the prospective grand jurors; she met with the grand jury commissioners that Smith had appointed; she reviewed the statutes relating to grand jury selection; and she met with several attorneys with whom she discussed the selection process. There is no evidence of actual malice in this record.

For these reasons I would reverse the judgment of the court of appeals and affirm the judgment of the trial court.

SPEAKS, J., joins in this dissenting opinion.

      . The entire text of the article is set forth in the opinion of the court of appeals. 677 S.W.2d at 177 n. 1.


author: RAY, Justice.

text:
    Roy Livingston JACOBS, Jr., Petitioner, v. Ellen English JACOBS, Respondent.
    No. C-2977.
    Supreme Court of Texas.
    April 3, 1985.
    Crady & Peden, Douglas S. Johnston, Houston, for petitioner.
    Burta Rhoads Raborn and Martha Bourne, Houston, for respondent.
   RAY, Justice.

This is a divorce case in which only the property division is challenged on appeal. The court of appeals, after finding that the trial court had erred in determining what was properly a part of the community estate, reversed and rendered judgment as to part of the property division; reversed and remanded as to another part; and affirmed the trial court’s judgment as to the remainder. 669 S.W.2d 759. We reverse that part of the court of appeals judgment which limits the remand to specific properties, substitute therefor a remand of the entire community estate for a new division and affirm the remainder of the judgment. We hold that a court of appeals must remand the entire community estate for a new division when it finds reversible error which materially affects the trial court’s “just and right” division of the property.

The trial court found the value of the community estate to be between $1,300,000 and $1,500,000. About one-half of this value was attributable to reimbursement claims. The trial court found the community estate entitled to reimbursement for the time, toil and effort expended by husband on behalf of his separate property corporation, for certain community expenditures which benefited husband’s separate estate and for certain income earned by husband, but diverted from the community estate to third parties.

Husband appealed the property division contending that the trial court had erred in awarding reimbursement to the community estate, had mischaracterized certain property and had erred in awarding wife her attorney’s fees upon appeal. The court of appeals held that the trial court had erred in the following respects: (1) by awarding reimbursement to the community estate for the time, toil and effort of husband on behalf of his separate property corporation, (2) by awarding reimbursement to the community estate for income allegedly due husband, but diverted by him to third parties, (3) by characterizing as wholly community property certain properties in which husband had a separate property interest, (4) by characterizing as wife’s separate property certain properties belonging to the community estate, and (5) by awarding wife her attorney’s fees on appeal regardless of outcome.

Regarding the two reimbursement claims enumerated above, the court of appeals rendered judgment holding there was no evidence to support the first claim and no pleadings to support the second. The court of appeals also rendered judgment vacating wife’s claim for attorney’s fees on appeal. Regarding the mischaracterized property, the court of appeals remanded that part of the cause that affected the properties for a new division. The remainder of the property division was affirmed.

Both parties have filed applications for writ of error alleging conflicts jurisdiction. Tex.Rev.Civ.Stat.Ann. art. 1728, subd. 2 (Vernon Supp.1985). Only husband’s allegation of conflict with Faulkner v. Faulkner, 582 S.W.2d 639 (Tex.Civ.App.—Dallas 1979, no writ) is sufficient to invoke our jurisdiction over this case of divorce. We have dismissed wife’s application for want of jurisdiction. See Oil Field Haulers Ass’n v. Railroad Comm’n, 381 S.W.2d 183 (Tex.1964).

Under a single point of error, husband argues that the court of appeals has erred in failing to remand the entire property division to the trial court for a new division. Husband contends that the court of appeals’ piecemeal editing of the property division made by the trial court is contrary to McKnight v. McKnight, 543 S.W.2d 863 (Tex.1976). We agree.

In McKnight, the appellate court found the trial court had abused its discretion in how it divided the community estate and rendered a new division of the property. In reversing this judgment and remanding to the trial court, we held that an appellate court could not substitute its discretion for that of the trial court because a “just and right” division of the community estate was a matter lying solely within the discretion of the trial court. McKnight v. McKnight, 543 S.W.2d at 867.

In the present case, the court of appeals modified the trial court’s property division by rendering judgment on the two reimbursement claims while limiting its remand to specific properties found to have been mischaracterized. McKnight, however, dictates a remand to the trial court of the entire community property division for a new division. Although the court of appeals appears to recognize in its opinion that the reimbursement claims materially influenced the property division, the court simply attempts by some unarticulated method to expunge the value of such claims from the community property division. The result, if it could be achieved, would be to alter the trial court’s plan for a “just and right” division of the community estate.

It is, however, probably impossible to excise the reimbursement claims from the community property division, absent a remand of the community property division, because such claims are not represented in the divorce decree by any specific, identifiable award of money, nor are they traceable to any specific properties. Even if the reimbursement claims could be identified in the trial court’s property division, the court of appeals could not simply modify the decree by striking the reimbursement awards “because to do so would be to make a new division of the estate of the parties, a matter within the discretion of the trial court.” Faulkner v. Faulkner, 582 S.W.2d 639, 642 (Tex.Civ.App.—Dallas 1979, no writ).

The Texas Family Code requires the trial court to “order a division of the estate of the parties in a manner that the court deems just and right, having due regard of the rights of each party_” Tex.Fam. Code Ann. § 3.63 (Vemon Supp.1985). The trial court has wide discretion in dividing the “estate of the parties,” but must confine itself to the community property; the only property subject to division under section 3.63. Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex.1977). Whether the trial court abuses its discretion in dividing the property, as in McKnight, or commits reversible error in defining what property is properly a part of the community estate and therefore subject to division, as in the present case, the principle to be applied is the same. Once reversible error affecting the “just and right” division of the community estate is found, the court of appeals must remand the entire community estate for a new division.

That part of the court of appeals judgment limiting remand to specific properties is reversed and the cause is remanded to the trial court for a new division of the community estate. In all other respects, the judgment of the court of appeals is affirmed.


author: WALLACE, Justice. KILGARLIN, Justice,

text:
    SABINE PILOT SERVICE, INC., Petitioner, v. Michael Andrew HAUCK, Respondent.
    No. C-3312.
    Supreme Court of Texas.
    April 3, 1985.

      Orgain, Bell & Tucker, Gilbert I. Low and Robert J. Hambright, Beaumont, Long, Parker, Doyle & Cichowaki, Carl A. Parker, Port Arthur, for petitioner.
    Provost, Umphrey, McPherson & Swear-ingen, Greg Thompson, Port Arthur, for respondent.
   WALLACE, Justice.

This is a suit for wrongful discharge brought by an employee, Michael Andrew Hauck. The trial court rendered summary judgment for Sabine Pilot Service, Inc., the employer. The court of appeals reversed the judgment of the trial court and remanded the cause for trial. 672 S.W.2d 322. We affirm the judgment of the court of appeals.

Hauck was a deckhand for Sabine. He testified in deposition that he was instructed that one of his duties each day was to pump the bilges of the boat on which he worked. He observed a placard posted on the boat which stated that it was illegal to pump the bilges into the water. He called the United States Coast Guard and an officer confirmed that pumping bilges into the water was illegal; therefore, he refused to do so. He further testified that he was fired for refusing to illegally pump the bilges into the water.

Sabine testified through one of its officers that Hauck was discharged because he refused to swab the deck, man a radio watch and other derelictions of duty.

In reviewing the granting of a summary judgment we must accept as true the non-movant’s version of the evidence and make every reasonable inference in the non-movant’s favor. Gulbenkian v. Penn, 161 Tex. 412, 252 S.W.2d 929 (1952). To sustain the summary judgment the movant must establish as a matter of law that no genuine issue of material fact exists. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979).

The sole issue for our determination is whether an allegation by an employee that he was discharged for refusing to perform an illegal act states a cause of action. This court in East Line & R.R.R. Co. v. Scott, 72 Tex. 70, 75, 10 S.W. 99, 102 (1888), held that employment for an indefinite term may be terminated at will and without cause. The courts of Texas have steadfastly refused to vary from that holding. However, in the last 30 years the courts of 22 states have made exceptions to the employment-at-will doctrine and numerous commentators have advocated exceptions to the doctrine. The exceptions advocated by the commentators and adopted by various courts range from very liberal and broad exceptions to very narrow and closely defined ones. See Comment, The At-Will Doctrine: A Proposal to Modify the Texas Employment Relationship, 36 Baylor L.Rev. 667 (1984) for a thorough discussion of the reasoning and decisions of other states concerning this issue.

Sabine contends that any exception to the employment-at-will doctrine should be statutorily created. The Legislature has created exceptions to this doctrine. TEX.REV.CIV.STAT.ANN. art. 8307c (discharge for filing a worker’s compensation claim); TEX.REV.CIV.STAT.ANN. art. 5207a (discharge based on union membership or nonmembership); TEX.REV.CIV. STAT.ANN. art. 5765 § 7A (discharge because of active duty in the State Military Forces); TEX.REV.CIV.STAT.ANN. art. 5207b (discharge because of jury service); TEX.REV.CIV.STAT.ANN. art. 5221k § 1.02, Texas Commission on Human Rights Act (discharge based on race, color, handicap, religion, national origin, age or sex). Although the Legislature has created those exceptions to the doctrine, this court is free to judicially amend a judicially created doctrine.

Upon careful consideration of the changes in American society and in the employer/employee relationship during the intervening 97 years since the East Line & R.R.R. Co. v. Scott decision, we hold that the situation which led to that decision has changed in certain respects. We now hold that public policy, as expressed in the laws of this state and the United States which carry criminal penalties, requires a very narrow exception to the employment-at-will doctrine announced in East Line & R.R.R. Co. v. Scott. That narrow exception covers only the discharge of an employee for the sole reason that the employee refused to perform an illegal act. We further hold that in the trial of such a case it is the plaintiffs burden to prove by a preponderance of the evidence that his discharge was for no reason other than his refusal to perform an illegal act.

The judgment of the court of appeals is affirmed.

KILGARLIN, J., files a concurring opinion in which RAY, J., joins.

KILGARLIN, Justice,

concurring.

I concur with this judgment which gives Michael Hauck an opportunity to prove to a trier of fact that he was discharged for refusing to violate a law. Moreover, I heartily applaud the court’s acknowledgement of the vital need for a public policy exception to the employment at will doctrine. Absolute employment at will is a relic of early industrial times, conjuring up visions of the sweat shops described by Charles Dickens and his contemporaries. The doctrine belongs in a museum, not in our law. As it was a judicially promulgated doctrine, this court has the burden and the duty of amending it to reflect social and economic changes. Our duty to update this doctrine is particularly urgent when the doctrine is used as leverage to incite violations of our state and federal laws. Allowing an employer to require an employee to break a law or face termination cannot help but promote a thorough disrespect for the laws and legal institutions of our society.

The court admittedly carves out but one exception to employment at will, but I do not fault the court for the singleness of its exception. The issue before the court was whether a cause of action existed under this particular fact situation: termination of an employee for his refusal to violate a law with a criminal penalty. There was no need for the court to create any other exception to employment at will in order to grant Hauck his requested relief. But, our decision today in no way precludes us from broadening the exception when warranted in a proper case.

As the court opinion recognizes, over twenty-two jurisdictions have carved exceptions to the employment at will doctrine in the last thirty years. The characteristics of the cause of action for wrongful discharge in those states vary. For example, Wisconsin has instituted a narrow contract-based exception to the employment at will doctrine. Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834, 838 (1983). Wisconsin law now implies into each employment at will contract a provision that the employer will not “discharge an employee for refusing to perform an act that violates a clear mandate of public policy.” 335 N.W.2d at 841. The Wisconsin court narrowly defined public policy to include constitutional and statutorily enunciated public policy only. The employee has to show that the dismissal violated such a policy. Then it becomes the employer’s burden to go forward with evidence to show that the firing resulted from just cause, not from the employee’s refusal to commit an illegal act. Hawaii has a similar exception, but uses a broader definition of public policy. Judicial decisions are included in the scope of public policy which an employer is not permitted to ask an employee to violate. Parnar v. Americana Hotels, Inc., 65 Hawaii 370, 652 P.2d 625 (1982).

Washington uses the same definition of public policy as Hawaii, but the burden of proof varies slightly. The Supreme Court of Washington requires the employee to plead and prove that a public policy may have been contravened. Once the employee has met this relatively easy task, “the burden shifts to the employer to prove that the dismissal was for reasons other than those alleged by the employee.” Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 685 P.2d 1081, 1089 (1984).

On the opposite end of the scale are New Hampshire and Massachusetts. New Hampshire may have announced the broadest of exceptions to the employment at will doctrine when it recognized a cause of action for terminations resulting from “bad faith, malice or retaliatory motives.” Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974). Massachusetts simply implies a good faith and fair dealing clause into each employment contract. See Fortune v. National Cash Register Co., 373 Mass. 96, 364 N.E.2d 1251 (1977).

The court opinion today does not extend an employee’s protection as far as any of the other states and Texas may never extend the exception to the Monge limit. Yet, the examples of other states will be valuable in examining exactly how broadly the exception in Texas can evolve. In the meantime, an employee in Texas finally has a cause of action when he can show that his employer fired him for his refusal to commit an illegal act.

The employee has the burden of proof and persuasion. The judge will then have to determine if a statute with a criminal penalty is involved. The jury or fact finder then must decide if the employer sought to have the employee commit an illegal act. Finally, the jury will have to answer a question similar to the following:

Do you find from a preponderance of the evidence that the only reason for the employee’s termination was his (her) refusal to commit an illegal act?

Finally, because of the limited issues presented in this case, the court does not address the matter of Hauck’s measure of damages. Logically, Tex.Rev.Civ.Stat.Ann. art. 8307c (prohibition of firing an employee for filing a worker’s compensation claim) should serve as a guide. If so, damages would include loss of wages, both past and those reasonably anticipated in the future, and employee and retirement benefits that would have accrued had employment continued. It would also include punitive damages. See Carnation Co. v. Borner, 610 S.W.2d 450 (Tex.1980).

Although I might have defined the employment at will exception differently, I concur in the court’s result and am pleased that an antiquated doctrine has been overcome by the realization that modern times require modern law. I, too, would affirm the judgment of the court of appeals.

RAY, J., joins in this concurring opinion.