author: SANDERS, Judge.

text:
    Franklin PAINTER, Phyllis Painter, and Jama Painter, Plaintiffs-Appellants, v. TOYO KOGYO OF JAPAN, Mazda Distributor (Gulf) Inc., Lawson Chevrolet Co., and Mazda Motors of America (Central) Inc., Defendants-Appellees.
    Court of Appeals of Tennessee, Eastern Section.
    Oct. 18, 1984.
    Permission to Appeal Denied by Supreme Court Dec. 31, 1984.

      Robert L. Randall, Jr., Jonesboro, for plaintiffs-appellants.
    Norman H. Williams, Robertson, Williams, Ingram & Overbey, Knoxville, for defendants-appellees Mazda Distributor (Gulf) Inc., and Toyo Kogyo, of Japan.
    Kenneth W. Kromer, Jr., McCampbell & Young, Knoxville, for defendant-appellee Lawson Chevrolet Co.
   OPINION

SANDERS, Judge.

In this personal injury action the Plaintiffs have appealed from the decision of the circuit court, which entered judgment in accordance with a jury verdict, in favor of the Defendants.

It appears that, at dusk on November 25, 1979, Phyllis Painter was driving her 1978 Mazda GLC automobile in a northerly direction on Asheville Highway. Evidently, the road was at least slightly wet from a light rain or mist that had fallen and was continuing to fall. Seated in the front seat with Mrs. Painter at the time were her daughter, Jama, aged 13, and Jama’s boy friend, Danny Broyles.

While on a straight stretch of the highway, and as Mrs. Painter was in the process of putting her lights back on bright subsequent to passing a southbound vehicle, allegedly the Mazda’s steering locked, became inoperable, and took control completely away from Mrs. Painter. It appears the Mazda proceeded to travel off of the right shoulder of the road, struck a bank, and flipped over. Mrs. Painter was thrown clear of the car, Jama was pinned inside, and Danny Broyles was trapped beneath the automobile.

Because of this accident Mrs. Painter and Jama, joined by Mr. Painter, sued the following parties, Toyo Kogyo of Japan (manufacturer), Mazda Motors of American (Central) Inc. (importer), Mazda Distributor (Gulf) Inc. (distributor), and Lawson Chevrolet Co. (dealer).

In their complaint the Plaintiffs allege that some or all of the Defendants mentioned above are liable in damages because of design and manufacture defects in the steering mechanism, negligence, breach of implied warranties of merchantability and fitness for a particular purpose, and breach of certain express warranties. Mrs. Painter and Jama sued to recover damages for bodily injury and for emotional pain and suffering, whereas Mr. Painter sought recovery for property damage and for the loss of services and consortium of his wife.

The Defendants answered separately. Lawson Chevrolet Co., after answering, cross claimed against the remaining Defendants, alleging it has a right of indemnity from the Cross Defendants should judgment be entered against it. The other Defendants answered, denying the allegations set forth, both in the Plaintiffs’ complaint and in Lawson Chevrolet’s cross claim.

After interrogatories had been propounded to each of the Defendants and answered by them, a trial was held. At the conclusion of the trial the court entered judgment for all of the Defendants in accordance with the jury verdict. From the trial court’s overruling of the Plaintiffs’ motion for a new trial, as amended, the Plaintiffs appeal and assign several issues for this court’s review.

The Plaintiffs-Appellants first contend that the trial court erred, during the voir dire of the jury, in .allowing the Defendants’ counsel to inform the jury of the unusual number of attorneys who had represented the Plaintiffs. In this connection, it appears that the following discussion took place during the voir dire:

“Mr. Hartman (for the Defendant): If the event comes to light that the Plaintiffs have been represented in this case previously by Charlie Terry, Gene Gaby, Kidwell King, Berkley Bell, John Rogers, Olen Haynes, ....
“Mr. Bell (for the Plaintiffs): Objection.
“Mr. Hartman: _ or Jerry Laughlin ....
“The Court: Overruled.
“Mr. Hartman: Would the fact that the Plaintiffs at one time or another in this case have been represented by these other lawyers, whose names I just now got through calling — would that have any influence on your verdict one way or the other?

All jurors indicate in the negative.”

Our courts have explained that “[t]he purpose of voir dire examination of prospective jurors is to enable counsel to become acquainted with their qualifications, interests, or biases, as a matter of fact, ... and to enable counsel to exercise peremptory challenges.” Wallis v. State, 546 S.W.2d 244, 249 (Tenn.Cr.App.1976). See also Smith v. State, 205 Tenn. 502, 327 S.W.2d 308 (1959). See generally 47 Am. Jur.2d Jury § 195 (1969), where it is stated that:

“[f]ull knowledge of all relevant and material matters that might bear on possible disqualifications of a juror is essential to a fair and intelligent exercise of the right of counsel to challenge either for cause or peremptorily. Accordingly, litigants are granted the right to examine prospective jurors on their voir dire in order to enable them to select a jury composed of men and women qualified, and competent to judge and determine the facts in issue without bias, prejudice, or partiality.”

With the purpose stated above in mind, it is reasonable that:

“[a] wide latitude is allowed counsel in examining jurors on their voir dire. The scope of inquiry is best governed by a wise and liberal discretion of the court, but the adverse litigants should be given the right to inquire freely about the interest, direct or indirect, of the proposed juror, that may affect his final decision. Thus, reasonable latitude should be given parties in the examination of jurors to gain knowledge as to their mental attitudes toward the issues to be tried, for the purpose of aiding them in striking jurors if they are not successful in challenging them for cause.”
47 Am.Jur.2d, supra, § 201.

The rule that trial judges possess wide discretion in overseeing jury voir dire is well supported in this jurisdiction. Specifically, our Court of Criminal Appeals has stated that “[t]he trial judge has wide discretion in controlling examination of prospective jurors and his action will not be disturbed on appeal unless there was an abuse of that discretion.” State v. Cox, 644 S.W.2d 692, 695 (Tenn.Cr.App.1982). See also State v. Jefferson, 529 S.W.2d 674 (Tenn.1975); Bolton v. State, 591 S.W.2d 446, 449 (Tenn.Cr.App.1979); and Smith v. State, 554 S.W.2d 648 (Tenn.Cr.App.1977). See generally 47 Am.Jur.2d, supra, § 212.

We find no abuse of discretion to have been committed by the trial court in permitting the Defendants’ counsel to disclose to the jury the names of those attorneys who had represented the Painters in the present case. It does not appear that any attempt was made by the Defendants’ counsel to asperse the Plaintiffs’ case, as no comment was made to the jury that the number of attorneys who had represented the Painters was abnormally excessive. Instead, counsel simply listed the names of the attorneys who had represented the Plaintiffs. In this regard, we believe that counsel, for either side, retains a valid interest in attempting to discover whether or not a potential juror might become biased upon learning that a certain attorney (or attorneys) had represented the opposing side. We therefore conclude that the trial court did not err in allowing the aforementioned inquiry to take place.

Next, the Appellants contend the trial court erred in allowing an expert to drill into the sealed steering column in order to determine whether or not foreign particles were in the steering column.

It has been generally stated that: “[wjhere the condition of personal property is in question, the court may in its discretion order it produced at the trial for inspection.”
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“The courts generally permit a party to make or perform an experiment in open court before the jury when such experiment will prove, or tend to prove or throw light upon the issues in the case on trial, provided it is made under conditions and circumstances like those existing in the case in issue, and evidence may be given of experiments and demonstrations made out of court and not in the presence of the jury, upon the same principles which permit experiments to be conducted in the jury’s presence.” (Emphasis ours.) 75 Am.Jur.2d Trial § 38 (1974).

Further:

“[i]t is clear, however, that experiments, demonstrations, and tests often serve to put the jury in the possession of knowledge, important to their determination of the issues, which they could not so readily or accurately obtain from the testimony of the witnesses, and often may afford evidence more satisfactory or reliable than oral testimony. The courts ... generally ... permit evidence to be given of experiments, demonstrations, or tests performed out of court ... for the purpose of aiding the trier of facts ... in determining the issues of fact.”
* * * * * *
“The performance of experiments, demonstrations, or tests in the presence of the jury, or the admission of evidence of experiments, demonstrations, or tests performed out of the presence of the jury, rests in the sound discretion of the trial court ... and this discretion will not be interfered with on appeal unless it is apparent that it has been abused.” 29 Am.Jur.2d Evidence § 818 (1967).

In the case at bar certain evidence was presented, suggesting that some substance or particle might have entered the sealed steering mechanism, thereby causing the steering to malfunction. Upon motion of the Defendants, the trial judge, after noting that some substance or particle could have somehow exited from the steering mechanism subsequent to the accident, permitted, over the Plaintiffs’ objection, the sealed device to be opened out of court but in the presence of representatives from both sides.

An “inspection of [exhibits that] may tend to the discovery of the truth of the matter in controversy” is permitted in this jurisdiction. City of Jackson v. Pool, 91 Tenn. 448, 454, 19 S.W. 324 (1892) (citing Greenleaf on Evidence, § 328). See also Friendship Telephone Co. v. Russom, 43 Tenn.App. 441, 309 S.W.2d 416, 423 (1957).

From a review of the facts, we believe the trial judge handled this entire matter correctly — obviously there was no abuse of discretion on his part in permitting the sealed device to be opened under such guarded circumstances.

Next, the Appellants argue the trial court erred in allowing the jury to observe, over the Plaintiffs’ objection, a steering shaft offered for identification by the defense counsel, where the shaft’s authenticity was in question. The Appellants contend that, while the steering shaft eventually was excluded from evidence, nevertheless, Plaintiffs’ counsel appeared to be keeping an important piece of evidence from the jury and this caused prejudice to the Plaintiffs’ case.

We cannot agree. We have confidence that the jury understood the steering shaft was excluded, not as an attempt in concealment, but rather on account of its dubious authenticity.

We note further that, even were we to conclude the trial court erred in allowing this shaft to be viewed by the jury, such error would be harmless. “A final judgment from which relief is available and otherwise appropriate shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process.” T.R.A.P., Rule 36. See generally Cook v. Blytheville Canning Co., 210 Tenn. 414, 359 S.W.2d 828 (1962); O’Brien v. Smith Brothers Engine Rebuilders, Inc., 494 S.W.2d 787 (Tenn.App.1973); and Tiffany v. Shipley, 25 Tenn.App. 539, 161 S.W.2d 373 (1942).

Nor do we find merit in the Appellants’ next assignment of error — that the trial court committed prejudicial error when he made the statement that the answers given by Max Lawson, of Defendant Lawson Chevrolet Co., to the interrogatories propounded to him, were probably answered by his attorneys. In this connection, the record reflects the following discussion took place during the Plaintiffs’ counsel’s cross-examination of Mr. Lawson:

“Q. Do you recall being served questions to answer sometime back in connection with this lawsuit, in the nature of interrogatories? Do you recall that?
“A. I don’t know what that means.
“Q. This would have been sometime in February, 1981, a list of questions directed to you to be answered?
“A. It’s possible.
“Q. And the first question was: Identify yourself, your position with Lawson Chevrolet Company, and the period of time you have held that office. Do you recall your answer?
“A. No.
“Q. You don’t recall receiving those interrogatories at all?
“A. By definition I don’t know what interrogatory is.
“Q. Well, it’s a list of questions that were filed with the Court, a copy of which was sent to you, either through your lawyer or directly to you to be answered by you in connection with this suit. Do you not recall?
“The Court: Do you recall what you put ... your attorney probably answered them for you.
“A. He may have. He may have.”

We don’t believe the trial judge’s comment caused any prejudice to the Plaintiffs’ case. In fact, it would seem the only party possibly harmed by such a statement would have been Lawson Chevrolet Company, since the judge’s statement arguably calls into question the credibility of its president and its president’s answers to his interrogatories. We therefore believe that any possible error resulting from the trial court’s aforementioned statement was harmless to the Plaintiffs. See T.R.A.P., Rule 36. See also Cook, supra; O’Brien, supra; and Tiffany, supra.

As part of their argument under this assignment of error the Appellants rather vaguely imply that Mr. Lawson’s answers to questions 11 and 12 of his interrogatories are inconsistent with other testimony.

Questions 11 and 12 of the “Interrogatories Propounded to Lawson Chevrolet, Inc.” and the answers read are as follows:

“11. Did you make any repairs to this lock prior to sale to the Painters; after sale to the Painters; or after the accident; or did anyone in your service department make such repairs?
“Answer: No; no; no; no.
“12. Did anyone in the employ of the defendant Lawson Chevrolet Company lubricate the steering locking mechanism? If so, with what type of lubricant and at what times?
“Answer: No.”

We note that the only answers to interrogatories about which Mr. Lawson was asked at trial were his answers to interrogatory questions 1 and 8. As the interrogatories to Mr. Lawson were never introduced into evidence in their entirety, and as Mr. Lawson was not asked, at trial, about his answers to questions 11 and 12 in particular, we agree with the Appellees’ position that Mr. Lawson’s answers to the latter two questions are not now reviewable on appeal. See Allstate Insurance Co. v. Young, 639 S.W.2d 916, 918-19 (Tenn.1982).

As their fifth assignment of error the Appellants assert the trial court erred in not declaring a mistrial after defense counsel stated, in the presence of the jury, that the Plaintiffs’ attorney should not be allowed to read portions of John Marcosky’s deposition into evidence because the Plaintiffs’ attorney had procured the absence of Mr. Marcosky.

It appears that a deposition was taken of Mr. Marcosky, an expert hired by the Plaintiffs. At the conclusion of the deposition, Mr. Marcosky was asked if he would be present to testify at trial, to which he replied he would be present if the Plaintiffs’ counsel called him. At trial, it appears the Plaintiffs decided not to have Mr. Marco-sky testify. However, at trial, after the Defendants’ attorney had read from portions of Mr. Marcosky’s deposition, the Plaintiffs’ counsel’s attempt to use the deposition was objected to by the Defendants.

Rule 32.01(3) of the Tennessee Rules of Civil Procedure provides, in pertinent part:

“The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: ... (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; ... or (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.”

After reviewing this rule, the trial court, apparently based upon the “exceptional circumstances” language of subsection (E), allowed the Plaintiffs’ attorney to read the desired portions of Mr. Marco-sky’s deposition into evidence. Although we conclude the trial court was justified, under the rule, to allow the Plaintiffs’ counsel to read the deposition, such a conclusion in no way suggests that the defense counsel’s objection was improper. His objection simply was based upon the clear language found in Rule 32.01(3)(B), and obviously the Appellants have no ground to argue that raising such an objection formed the basis for the trial court to declare a mistrial.

The Appellants next contend the trial court erred in allowing the defense counsel to make improper closing arguments, including the following:

(1) Discussion of the number of attorneys that the Plaintiffs had talked to after the commencement of the action;

(2) The statement that the Plaintiffs’ attorneys had attempted to keep from the jury vital evidence;

(3) The statement that the case was a concoction of the Plaintiffs’ attorneys; and

(4) The statement “that counsel for the plaintiffs had obtained the services of a witness who testified for they know that the statement was untrue and that they, defense counsel, had subpoened the witness to testify.”

As to allegations (1) and (3), after a close scrutiny of the Defendants’ closing arguments, we do not find any mention of either matter. We strongly suggest that counsel read the record prior to alleging errors for our review.

As to allegation (2)—that Defendants’ closing argument included a statement that the Plaintiffs’ attorneys had attempted to keep from the jury vital evidence—the only statement made by the defense counsel relative to this contention is Mr. Williams’ comment that the Plaintiffs had attempted to prevent the sealed steering mechanism from being opened.

We find no error on the trial court’s part in allowing the Defendant’s counsel to make such a comment. Not only is counsel’s statement true, but also the jury, by the closing arguments, already knew that the Plaintiffs, in fact, had attempted to prevent the sealed unit from being opened.

It is a recognized rule in this state that the trial court, in its sound discretion, shall determine what is proper argument in a particular case and the appellate courts will not review the action of the trial court except for palpable abuse of that discretion. J. Avery Bryan, Inc. v. Hubbard, 32 Tenn.App. 648, 225 S.W.2d 282 (1949); Jenkins v. Perry, 52 Tenn.App. 576, 376 S.W.2d 726 (1964); Klein v. Elliott, 59 Tenn.App. 1, 436 S.W.2d 867 (1968).

As to allegation (4), we are unable to extract from the Appellants’ language any intelligible legal argument. Further, as this allegation has not been briefed properly by the Appellants, we deem that said argument has been waived pursuant to Rule 27(g) of the Tennessee Rules of Appellate Procedure (as interpreted in State v. Goodman, 643 S.W.2d 375, 378 (Tenn.Cr.App.1982); State v. Hicks, 629 S.W.2d 908, 910 (Tenn.Cr.App.1981); and State v. Doelman, 620 S.W.2d 96, 99 (Tenn.Cr.App.1981).

As their seventh and final assignment of error, the Appellants assert the trial court erred in refusing to grant a new trial on the basis of newly discovered evidence of collateral accidents of Mazda vehicles allegedly resulting from steering lockups.

In our recent decision of Seay v. City of Knoxville, 654 S.W.2d 397 (Tenn.App.1983), we addressed the question of granting or denying a motion for a new trial based upon newly discovered evidence. In Seay, we first noted that “the courts have an inherent distrust for such motions and they are looked on with disfavor....” Id. at 399. We further stated that:

“to justify a new trial for newly discovered evidence it must be shown that the new evidence was not known to the moving party prior to or during trial and that it could not have been known to him through exercise of reasonable diligence.”

Id. (and cases cited therein).

Here, there was no showing, by affidavit or otherwise, that this “newly discovered evidence” was not known either prior to or during the trial, nor is there a showing, by affidavit or otherwise, of due diligence on the part of the Plaintiffs in discovering said evidence.

In Seay, we also noted the “most oft-repeated principle governing motions for a new trial on the basis of newly discovered evidence” to be that “the granting or denial of such a motion is within the discretion of the trial judge.” Id. at 400-01 (citations omitted).

In the case at bar we find no abuse of discretion by the trial court in its denial of the Appellants’ amended motion for a new trial based upon newly discovered evidence. Although this “new evidence” seems to call into question the veracity or accuracy of certain answers of the Defendants to interrogatories that had been propounded to them, we believe the trial court acted within its granted discretion when it overruled the Appellants’ motion. In this connection, it ought to be remembered that the Appellants failed to show such evidence was unknown to them until after the trial or that they were unable to discover the evidence despite due diligence. See Seay, supra.

Finally, the Appellants have filed a “Motion to Submit New Evidence for Consideration of Post-Judgment Facts.” The motion, in substance, alleges facts identical to those alleged by the Appellants in their amended motion for a new trial based upon newly discovered evidence. As such, the facts alleged in this motion are not post-judgment in nature, to be considered for the first time by this court. Even were these facts actually post-judgment, we conclude that Rule 14 of the Tennessee Rules of Appellate Procedure would not permit this court to consider them. Rule 14 provides, in pertinent part:

“While neither controlling nor fully measuring the court’s discretion, consideration generally will extend only to those facts, capable of ready demonstration, affecting the positions of the parties or the subject matter of the action such as mootness, bankruptcy, divorce, death, other judgments or proceedings, relief from the judgment requested or granted in the trial court, and other similar matters. Nothing in this rule shall be construed as a substitution for or limitation on relief from the judgment available under the Tennessee Rules of Civil Procedure. ...”

The Advisory Commission Comment to this rule provides:

“Although the appellate court should generally consider only those facts established at trial, it occasionally is necessary for the appellate court to be advised of matters arising after judgment. These facts, unrelated to the merits and not genuinely disputed, are necessary to keep the record up to date. This rule gives the appellate court discretion to consider such facts. This rule is not intended to permit a retrial in the appellate court.”

In the very recent decision of Duncan v. Duncan, 672 S.W.2d 765 (Tenn.1984), our Supreme Court lent its interpretation of Rule 14. Quoting at length from Crawford v. Crawford, 163 Kan. 126, 181 P.2d 526, 531-32 (1947), the Duncan court stated:

“[The Kansas Court] limited the scope of such evidence so as not to include
“ ‘... what would be mere cumulative evidence, nor evidence which it would be possible to controvert or dispute in the trial court, nor concerning the effect of which there might be differences of opinion, or from which different conclusions could possibly be drawn.’ [Citations omitted.]
“As to those matters which could be considered the court stated
“ ‘Sometimes the court is in need of extraneous evidence respecting some situation or fact to enable it to determine, not the propriety of the conduct of the district court, but the nature of the judgment to be directed. Sometimes a document, or public record, or other item of evidence of like character, material to a proper determination of the appeal and substantially incon-testible, is called for, or is examined if produced, and then is treated in the same way as an admission of the parties would be treated if found in the record.’
“We agree with the Kansas court that courts in the exercise of their appellate jurisdiction are not prevented from considering post-judgment facts if such facts are appropriately limited.... And although they are not controlling, we regard the limitations on the use of post-judgment facts found in the language quoted in Crawford v. Crawford to be particularly valuable as a guideline in determining the scope of Rule 14.”
Duncan, supra, at 767-68.

From the discussion quoted above, we conclude the facts alleged by the Appellants, even were they post-judgment, would not be the type that Rule 14 intends for an appellate court to consider for the first time on appeal. The facts raised by the Appellants can be controverted and go to the case’s merits. They are not “capable of ready demonstration,” as Rule 14 requires.

The issues are found in favor of the Appellees. The judgment of the trial court is affirmed and the cost of this appeal is taxed to the Appellants.

PARROTT, P.J., and GODDARD, J., concur.


source: Caselaw Access Project

author: REEVES, Justice. TIJERINA, Justice,

license: Public Domain

text:
    CITY OF LAREDO, Firemen’s and Policemen’s Civil Service Commission of the City of Laredo and Victor L. Garcia, Chief of Police, Appellants, v. Jose L. MARTINEZ, Appellee.
    No. 04-83-00292-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 30, 1984.
    Rehearing Denied Jan. 8, 1985.
    Anthony C. McGettrick, City Atty.’s Office, Laredo, for appellants.
    George 0. Jacobs, Charles R. Borchers, Person, Whitworth, Ramos, Borchers & Morales, Laredo, for appellee.
    Before BUTTS, REEVES and TIJERI-NA, JJ.
   OPINION

REEVES, Justice.

Police Lieutenant Jose L. Martinez was suspended for five days by the police chief of the City of Laredo. He appealed to the Civil Service Commission of Laredo which reduced the suspension to four days. Martinez then appealed to the district court which set aside the decisions of the Civil Service Commission and the police chief. The City of Laredo, the Firemen’s and Policemen’s Civil Service Commission of the City of Laredo, and the Laredo Police Chief appeal from the judgment of the district court.

One point of error is asserted: the trial court erred in reversing the decision of the Civil Service Commission since the Commission’s decision to suspend Martinez for four days was supported by substantial evidence.

There is a presumption in favor of the validity of the administrative agency’s action. The burden is on the person challenging such action to show that it is not supported by substantial evidence. Board of Adjustment of the City of San Antonio v. Leon, 621 S.W.2d 431, 434 (Tex.Civ.App.-San Antonio 1981, no writ). Under the substantial evidence rule, the decision of an administrative agency must stand unless the record as a whole compels the conclusion that reasonable minds could not have reached the conclusion reached by the agency. Id. at 433.

The incident for which Lieutenant Martinez was suspended occurred on September 3, 1982. Lieutenant Hinojosa, Captain Moran and Officer Revolledo of the Laredo Police were discussing in a hallway of the police station which patrol car was to be assigned to Officer Revolledo. Officer Re-volledo did not want to use unit number 14 which had been assigned to him because it had been stripped of lights, radios and sirens. Lieutenant Martinez arrived at the scene and an argument between him and Lt. Hinojosa ensued. What was said during the argument is disputed.

Lt. Hinojosa testified that Lt. Martinez told Officer Revolledo, who was under Lt. Hinojosa’s command, to not take a car and to just go tell Judge Molina (a judge who issued warrants). Captain Moran testified that Lt. Martinez shouted this to the group as he approached. Then, according to Lt. Hinojosa, Martinez asked him, “Why don’t you drive Unit 14?,” to which Hinojosa responded, “Why don’t you?.” Captain Moran testified that at this point Lt. Hino-josa told Martinez that he, Hinojosa, was fed up with Martinez’s meddling in their decisions. On cross examination, Hinojosa admitted that Martinez, as a member of the management team for the police department, had the right to discuss the problems regarding patrol unit number 14 with all officers, even if they were under the command of Captain Moran.

Martinez then allegedly told Hinojosa that no one was going to tell him what to do and stuck his tongue out at Hinojosa. Captain Moran testified that he did not see Martinez do this but had, on other occasions, when Martinez was trying to “put somebody down.” Lt. Martinez testified that he had a habit of sticking his tongue out but not in a derogatory manner, and, further, he had not stuck out his tongue to Lt. Hinojosa on this occasion. Rather, Lt. Martinez claimed, it was Hinojosa who stuck out his tongue and did so in full view of Captain Moran without any disciplinary action on Moran’s part. Captain Moran denied seeing Hinojosa act in this manner.

Hinojosa testified that Martinez said, in Spanish, the English equivalent of “if you want something with me, let’s see how you come out of it.” At this point, Hinojosa turned away to respond to a request to come to the police chief’s office. As Hino-josa walked away, Martinez said, in Spanish, the English equivalent of “you are good for nothing together with your Captain.” However, Martinez’s translation of the Spanish phrase he used is “it’s not worth it.”

Captain Moran testified that he then asked Martinez, “Are you referring to me? ... are you going to challenge me, too?” Martinez responded, testified Moran, “No, you don’t have the guts to discipline your people.” When Moran suggested they talk to the Chief, Martinez answered, “You go ahead and talk to the Chief, ... Iam still telling you to discipline your people.” Moran testified he then said, “Look, you are not going to give me orders, now or ever,” to which Martinez responded, “I’m giving the orders now and anytime I please.” Martinez denied making this statement.

A secretary who was sitting in an office near the hallway on September 3, 1982, testified that she heard loud voices and recognized Lt. Martinez and Captain Moran’s voices. The only part of the conversation she heard distinctly was Martinez stating, “I am giving you an order,” and Moran responding, “You don’t give me any orders.”

After the incident, Captain Moran submitted a letter of complaint to the police chief concerning Martinez’s behavior. On cross examination, Captain Moran testified that the letter included matters extraneous to the September 3, 1982 incident. On October 18, 1982, the police chief issued a letter suspending Martinez for five days for two violations of the Rules of the Firemen’s and Policemen’s Civil Service Commission of the City of Laredo: discourtesy to the public and/or conduct unbecoming an officer. The only basis given for these violations is Martinez’s actions on September 3, 1982.

Martinez appealed to the civil service commission. A hearing was held and an order issued on November 15, 1982. The order stated there were no relevant grounds on which to uphold the five day suspension because of discourtesy to the public. The commission found, however, that Martinez did engage in conduct unbecoming an officer. The order reduced his suspension to four days.

When reviewing an order of the civil service commission, a trial court may not substitute its judgment for that of the commission. City of Garland v. Dittrich, 517 S.W.2d 839, 841 (Tex.Civ.App.-Eastland 1974, no writ). A review of the testimony reveals contradictory versions of what was said, what was meant by the statements, and what gestures were made during the September 3, 1982 incident. Yet, reasonable minds might well have concluded, based on the testimony of Lt. Hino-josa, Captain Moran and the secretary at the police station, that Martinez did make disrespectful remarks and gestures to a fellow officer and an officer of superior rank. Further, it is improper for a trial court, in reviewing a civil service commission order to assume the function of fact finder. City of Wichita Falls v. Fowler, 555 S.W.2d 920, 923 (Tex.Civ.App.-Fort Worth 1977, no writ). The trial court’s query is not whether Lt. Martinez did or did not say certain words or engage in the conduct stated as grounds for his suspension. Rather, the question before the trial court is whether the commission’s order is supported by substantial evidence, and this is a question of law. Pruitt v. City of Houston, 548 S.W.2d 90, 95 (Tex.Civ.App.-Houston [1st Dist.] 1977, no writ). Any conflict in the evidence must be resolved in favor of the commission. City of Carrollton v. Keeling, 560 S.W.2d 488, 490 (Tex.Civ.App.-Dallas 1977, writ ref’d n.r.e.).

Therefore, we hold there was substantial evidence to support the commission’s order.

However, it is possible the trial court set aside the order for a different reason. There were two issues properly before the trial court: (1) whether the commission’s order was reasonably supported by substantial evidence, and (2) whether the order was free from taint of any illegality. Fire Department of City of Fort Worth v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664, 666 (1949).

Martinez alleged a violation of his due process rights by the Commission. The letter of complaint submitted by Captain Moran to the police chief was not limited to events transpiring at the September 3,1982 incident. Although the police chiefs suspension order restricted the grounds for suspension to conduct occurring only on September 3, 1982, there is testimony in the record that the Commission did read Captain Moran’s letter. Martinez contends that he never had notice of other charges alleged by Captain Moran nor did he have an opportunity to respond to such charges. He argues this was a violation of his due process rights because the commission considered the contents of the letter in its deliberations.

When a decision is influenced by evidence of which one party has no knowledge, or has no chance to confront a witness or explain, a due process violation problem arises. Richardson v. City of Pasadena, 513 S.W.2d 1, 4 (Tex.1974).

Originally, Lt. Martinez testified that the attorney for the City of Laredo attempted to introduce Captain Moran’s letter into evidence, the Commission members adjourned to a private room to consider the contents of the letter, and, upon returning, ruled the letter would not be admitted into evidence. On cross examination, Lt. Martinez recalled that the reason the Commission saw the letter was that his counsel asked to see the letter and the city attorney objected on the basis of the attorney-client privilege and the work-product privilege. Martinez further recalled that the Commission ruled his counsel could not read the letter.

The parties are in agreement that the Commission did read the contents of Captain Moran’s letter. The letter, however, was not allowed into evidence. The commissioner who testified stated that he had no recollection of the letter or its contents. He stated that the decision of the commission was based only on the testimony of the witnesses at the hearing and on the police chief’s letter of suspension. The commissioner had with him at trial in district court the file containing all documentary evidence from Lt. Martinez’s hearing. The letter of complaint written by Captain Moran was not included.

Under these facts, no due process violation occurred.

We reverse the judgment of the trial court, and render judgment that the order of the Laredo Firemen’s and Policemen’s Civil Service Commission be sustained.

TIJERINA, Justice,

dissenting.

I respectfully dissent. Appellee’s suspension arises from a trivial act of misconduct which at most should merit a reprimand. This set of facts should be viewed under the doctrine of de minimis non cur-at lex, which stands for the proposition that the law does not care for or take notice of very small or trifling matters. This doctrine has been used to excuse minor deviations from the letter of the law. See Fort Worth Neuropsychiatric Hospital, Inc. v. Bee Jay Corp., 587 S.W.2d 746, 757 (Tex.Civ.App.-Fort Worth 1979), rev’d on other grounds, 600 S.W.2d 763 (Tex.1980); Anguiano v. Jim Walter Homes, Inc., 561 S.W.2d 249, 255 (Tex.Civ.App.-San Antonio 1978, writ ref’d n.r.e.).

Additionally, the commission’s hearing on this matter was tainted when members of the commission adjourned to a private room to consider the contents of a letter from Captain Moran. Appellee was not allowed to read the letter, which deprived him of effective cross examination and due process. The fact that the letter was not admitted in evidence does not cure the inappropriate action by the commission. The right to cross examination is a vital element in a fair adjudication of disputed facts. The right to examine and rebut all evidence is not confined to court trials, but applies also to administrative hearings. Richardson v. City of Pasadena, 513 S.W.2d 1, 4 (Tex.1974). Accordingly, I would affirm.


author: LEVY, Justice.

text:
    Joseph KAUFHOLD, Jr., Independent Executor, Appellant, v. James B. McIVER, et al., Appellees.
    No. 01-84-00012-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 29, 1984.
    Rehearing Denied Dec. 31, 1984.

      Thomas N. Crowell, Hutcheson & Grundy, Houston, for appellant.
    Richard W. Davis, Davis, Wardlaw, Hay, Whittenburg & Aboussie, San Angelo, John Kahanek, III, James Weir, Louis Pontello, Jr., William E. Wylie, Houston, for appel-lees.
    Before EVANS, C.J., and LEVY and DOYLE, JJ.
   OPINION

LEVY, Justice.

This is an appeal from an order construing a will. The trial court’s judgment is affirmed.

Louise Mclver died on December 26, 1976. She had executed a will on October 29, 1976, which revoked all prior wills and appointed appellant, her nephew, as independent executor of her estate. On February 1, 1977, an order was signed admitting the will to probate, and appellant filed an application with the probate court on July 23, 1982, asking that the court enter a declaratory judgment construing the testamentary provisions of the will.

A bench trial was held on the application, and the court entered an order construing the will. The court held, inter alia, that the testatrix died testate only as to her personal property and that she died intestate as to her real property, except for her homestead, which was specifically bequeathed to her sister in Article VII of her will.

Appellant filed a motion for a new trial, alleging discovery of new evidence which would require a different construction of the will. A hearing was held thereon, and the trial court overruled appellant’s motion for new trial. Appellant ■ brings seven points of error before the court. Appel-lees, the heirs of the testatrix, bring one cross-point.

In his first four points of error, appellant challenges the trial court’s conclusions of law and its construction of the will. The trial court’s conclusions of law are as follows:

1. Under the terms of her will dated October 29, 1976, Louise Mclver died testate only as to her personal effects and personal property, which passed to the named persons in the percentages stated in Paragraph VI in said will and the real property described in Paragraph VII in said will.
2. Louise Melver died intestate as to all real property which she owned, in whole or in part, save and except only that described in Paragraph VII in her will dated October 29, 1976, and all such real property, or interest therein, owned by the decedent passed to her heirs at law by intestate succession.

In his first point of error, appellant alleges that the trial court erred in ruling that Louise Melver died testate only as to her personal property and her homestead. The only bequests occur in Articles IV, VI and VII. Article IV of the will directs the executor to distribute the testatrix’s “personal effects” among the relatives listed in Article VI. Article VII specifically gives the testatrix’s homestead to her sister. This is the only real estate mentioned in the will, and there is no residuary clause. In appellant’s second point, he alleges that the trial court erred in ruling that Article IV of the will disposed only of Louise Mclver’s personal property. In his fourth point, he alleges that the trial court erred in failing to find that the term “personal effects” in Article IV of the will included all of Louise Mclver’s property not otherwise specifically bequeathed. Appellant argues that the will disposes of all of Louise Mclver’s property as a matter of law, and that the trial court’s construction of the will is against the great weight and preponderance of the evidence.

At the outset, we are faced with the problem of construing the phrase “personal effects.” Appellant argues that “personal effects” should include all property, including personalty and realty. However, “personal effects” has customarily been defined more narrowly as referring only to articles bearing intimate relation or association to the person of the testator. Teaff v. Ritchey, 622 S.W.2d 589 (Tex.App.-Amarillo 1981, no writ); First Methodist Episcopal Church South v. Anderson, 110 S.W.2d 1177 (Tex.Civ.App.-Dallas 1937, writ dism’d); see also Goggans v. Simmons, 319 S.W.2d 442 (Tex.Civ.App.-Fort Worth 1958, writ ref’d n.r.e.)

The trial court interpreted “personal effects” to exclude real property, but appellant argues that this interpretation is against the great weight and preponderance of the evidence. In a “great weight” point of error, this court must examine all the evidence in the record relevant to the finding being challenged. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

A will is a unilateral instrument, and the court is concerned only with the intention of the testator as expressed in the document. The sense in which the words were used by the testator is the ultimate criterion, and the court may always receive and consider evidence concerning the situation of the testator, the circumstances existing when the will was executed, and other material facts that will enable the court to place itself in the testator’s position at the time. Stewart v. Selder, 473 S.W.2d 3 (Tex.1971). However, the intention of the testator must be ascertained from the language used within the four corners of the instrument. Shriner’s Hospital v. Stahl, 610 S.W.2d 147, 151 (Tex.1980). The question is not primarily what the testator intended to write, but the meaning of the words he actually used. Id. at 151.

A careful examination of the testatrix’s background, as shown by the record, reveals that she knew the difference between various terms such as real property, personal property, and personal effects. She worked in the Harris County Clerk’s office for 31 years, and for 15 years she was the department head of the Real Property Document Recording Section. Appellees presented testimony from two of the testatrix’s former co-workers. One witness testified that she knew the deceased from 1959 to 1966. Her opinion was that the testatrix was “a jack of all trades in that office, because she knew it like she knew the back of her hand.” Furthermore, the witness stated that the testatrix definitely knew the difference between real property, real estate, personal property, and personal effects at that time, as she dealt with instruments covering such areas in connection with her work.

Appellant argues that the testimony of the testatrix’s sister, Katherine Openshaw, establishes that “personal effects” in the testatrix’s will referred to real estate as well as personal property. Openshaw testified that the testatrix had told her that she would leave her entire estate to her nieces and nephews, and nothing to Openshaw because she had her own property. She also testified that the list of names under Article VI of the will specified the testatrix’s nieces and nephews.

Another witness, Carl S. Smith, County Tax Assessor-Collector, testified that he knew the testatrix very well during her employment at the county clerk’s office. He was of the opinion that she was a good deputy, and certainly knowledgeable in her job. Smith testified that he believed that the testatrix had personal knowledge of certain terms such as personal property, real property, personal effects, and household effects.

Appellees also presented testimony from a law school graduate who had done a “run of the records” in the Harris County Clerk’s office. The witness testified that between 1961 and 1976, the testatrix was involved in approximately 74 different transactions which were recorded in the Harris County deed records. These transactions included warranty deeds, easements, releases, deeds of trust, quitclaim deeds, affidavits, and assignments regarding real estate.

Based on the testimony presented regarding the extent of the testatrix’s knowledge of real estate transactions, both from work and her own personal involvement, it does not appear reasonable to define “personal effects,” as she used the phrase in her will, to include real property. The intention of a testator must be found, in the last analysis, in the words of the will, and for that reason, a testator’s other and external declarations of intention dealing with the subject of the special document are generally not admissible. These declarations may be received only as an aid in resolving certain specific problems of interpretation, such as an equivocation, or latent ambiguity. Stewart, 473 S.W.2d at 7.

The trial court found that the testatrix “was knowledgeable of and understood the legal interpretation and meaning of such words as personal effects, personal property, real estate and real property.” This finding is not against the great weight of the evidence. Having found that the testatrix understood the use of the words “personal effects,” the trial court was faced with the interpretation of a will which apparently did not provide for the distribution of most of the testatrix’s real property.

The mere making of a will is evidence that a testator had no intent to die intestate, and creates a presumption that the testator intended to dispose of his entire estate, and that he did not intend to die intestate as to the whole or any part of his property. Shriner’s Hospital, 610 S.W.2d at 151; Haile v. Holtzclaw, 414 S.W.2d 916, 922 (Tex.1967). Appellant argues that this presumption applies in the instant case, and that Article II, which states that the testatrix intended to dispose of all property owned by her at the time of her death, supports this position. It is highly inconsistent, appellant argues, that Article IV be literally construed to mean that only the testatrix’s personal effects pass by her will. If it is interpreted as such, all of the testatrix’s real property except for her homestead, which was specifically bequeathed, would pass according to the intestacy statute, to her heirs at law. The record in the case contains an inventory of the testatrix’s estate, and listed among the real property are some 13 items besides her homestead, totaling in value over $500,000.

The presumption against intestacy is one factor to be considered in determining the intention of a testator, but it is not to be used as an excuse for violating the testamentary scheme adopted by him. Stewart, 473 S.W.2d at 8; Carr v. Rogers, 383 S.W.2d 383, 385 (Tex.1964); Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885 (1960). When a will provision is fairly open to more than one construction, a construction resulting in intestacy, either in whole or in part, will not be adopted if by any reasonable construction it can be avoided. Kuehn v. Bremer, 132 S.W.2d 295 (Tex.Civ.App.-Waco 1939, writ ref’d); Ferguson v. Ferguson, 121 Tex. 119, 45 S.W.2d 1096 (1931).

When a will contains a general provision and an inconsistent specific provision, the latter provision will control regardless of the position in which the provisions appear in the will. However, if there is an irreconcilable conflict in an earlier and a later clause, the earlier clause must give way to the later one, which prevails as the latest expression of the testator’s intention on that particular subject. Morriss v. Pickett, 503 S.W.2d 344 (Tex.Civ.App.-San Antonio 1973, writ ref’d n.r.e.).

While the intention of the testator must be ascertained from the words of the instrument itself, Shriner’s Hospital, 610 S.W.2d at 151, where a testator fails to provide for the complete disposition of all of his property, whether by intent or not, it must be held that the testator dies intestate as to such omitted property. Carr, 383 S.W.2d at 385. Because the testatrix did not provide for the distribution of her real property other than her homestead, the trial court correctly found that she died partially intestate. Appellant’s points of error number one, two, and four are overruled.

In his third point of error, appellant alleges that the trial court erred in failing to find that residuary estate disposition language was mistakenly omitted from Article VI of the will.

Katherine Openshaw testified that she had discussed the will with her sister and that they wrote the will together. She also testified that she prepared the testatrix’s will and that she had gotten “some of the verbiage” for it from her own will. She revealed that in Article IV of the testatrix’s original will there is a “white-out,” and the words “personal effects” were typed in over the words which were whited-out. Openshaw was not able to state what words must have been whited-out. However, appellant also introduced into evidence the second page of Katherine Open-shaw’s will, which she claimed to have copied for the testatrix. It appears that the testatrix changed the words "foregoing property” from Openshaw’s will to the words “personal effects” in her own will.

Ben Sewell, a Houston attorney who prepared the Openshaw will in 1974, testified that Article VI of the testatrix’s will was apparently adapted from Article VII of the Openshaw will. He further testified that Article VII of the Openshaw will contained a residuary clause. When comparing the two articles, he observed that there was no residuary clause language in the testatrix’s will. Sewell further observed that, in his opinion, the testatrix’s will was ambiguous, and that the testatrix had apparently overlooked including in her own will the residuary clause language from the Openshaw will. He further explained that the Open-shaw will was very complicated and thus, it would have been very difficult for a layman to pick up the reference therein to the residuary estate. Appellant argues that the trial court erred in failing to find the residuary language was omitted by mistake.

Appellant asserts that, because Article VI of the will is ambiguous and open to two constructions, the interpretation that will prevent intestacy must be utilized. Shriner’s Hospital, 610 S.W.2d at 151. But the alleged alternative construction of the will is not apparent on its face, and we must give the words of the will their normal meaning, in light of the testatrix’s intentions.

An ambiguity in a will has been said to exist only when the meaning arising from the language used admits of more than one reasonable interpretation. Farah v. First National Bank, 624 S.W.2d 341, 346 (Tex.App.-Fort Worth 1981, writ ref’d n.r.e.); Price v. Austin National Bank, 522 S.W.2d 725, 732 (Tex.Civ.App.-Austin 1975, writ ref’d n.r.e.). Appellant argues that Sewell’s testimony establishes that Article VI of the Mclver will, as written, is ambiguous, and that this court should, as a result, hold that the testatrix mistakenly left out the residuary clause language. However, Article IV specifically says that the testatrix’s personal effects are to go to the people named in Article VI, in the proportions listed for each. Therefore, reading Article VI in context with the provisions of Article IV, any ambiguity is resolved. The only properties covered by these provisions are the testatrix’s “personal effects.”

In determining the testatrix’s intention, the true purpose of the inquiry is to ascertain not what she meant to express apart from the language used, but what the words she has used do express. Accordingly, when there is no dispute as to what words were written in the will, extrinsic evidence cannot be received to show that the testatrix intended something, outside of and independent of such written words, to add to those words in the will. Farah, 624 S.W.2d at 346; Price, 522 S.W.2d at 732. The trial court must ascertain a testator’s intent from within the four corners of the will. A mistake of fact or law, in the absence of fraud or undue influence, will not defeat the probate of a will, even though the testator might have made a different will if there had been no such mistake inducing the testator to make the will. Courts have no authority to vary or modify the terms of a will or to reform it even on grounds of mistake. Carpenter v. Tinney, 420 S.W.2d 241, 244 (Tex.Civ.App.-Austin 1967, no writ). Neither trial nor appellate courts have the authority to redraft a will to conform it to the court’s perception of the testator’s unexpressed intent. Farah, 624 S.W.2d at 345; Huffman, 161 Tex. at 270, 339 S.W.2d at 888.

The law does not favor a construction that results in a partial intestacy. However strong the presumption against intestacy is, it does not authorize the court to make a new will, nor to include property that is not within its terms, nor to supply a residuary clause when one was not included. Farah, 624 S.W.2d at 347; Swearingen v. Giles, 565 S.W.2d 574 (Tex.Civ.App.-Eastland 1978, writ ref’d n.r.e.); Alexander v. Botsford, 439 S.W.2d 414 (Tex.Civ.App.-Dallas 1969, writ ref’d n.r.e.).

Thus, while it appears that Se-well’s testimony is competent to show what he thought the testatrix intended to do, it is not competent to show what the testatrix’s actual intent was, as expressed in the will. Appellant’s third point of error is overruled.

Appellant argues, in his fifth and sixth points of error, that the trial court erred in admitting into evidence, and considering for its ruling, a purported 1960 holographic will of the testatrix. Appellant objected to the admission of this exhibit on the grounds that it was irrelevant and that it had not been properly authenticated. The court overruled his objections and admitted the exhibit into evidence.

Appellant correctly argues that the proper predicate had not been laid for the admission of the exhibit. A private writing must be proved to be genuine before it can be admitted into evidence, especially when it is offered against a person not a party to the writing. Morris v. Ratliff, 291 S.W.2d 418 (Tex.Civ.App.-Dallas 1956, writ ref’d n.r.e.). The record reveals that no attempt was made to authenticate the purported holographic will in any way prior to its admission. Moreover, the probate code sets forth the requirements of validating .a holographic will. Tex.Prob. Code Ann. sec. 84(b) (Vernon 1980). A holographic instrument offered for probate must be wholly in the handwriting of the decedent, and such burden of proof may be met by evidence of two witnesses to the handwriting of the decedent. Gillispie v. Reinhardt, 596 S.W.2d 558 (Tex.Civ.App.-Beaumont 1980, writ ref’d n.r.e.). A revoked will cannot be admitted to probate. Davis v. Hoskins, 531 S.W.2d 424 (Tex.Civ.App.- Fort Worth 1975, no writ); Shawver v. Parks, 239 S.W.2d 188 (Tex.Civ.App.—Eastland 1951, writ ref’d).

However, it is important to note that this will was not the will being, or sought to be, probated. It appears to have been admitted only to show the testatrix’s prior intent to die partially intestate, although it was not admitted for a limited purpose. The admission of incompetent evidence will not generally require a reversal of the judgment in a trial before the court when there is other competent evidence to authorize the judgment, and it will ordinarily be assumed that the trial court disregards incompetent evidence. Merrell v. Merrell, 527 S.W.2d 250 (Tex.Civ.App.-Tyler 1975, writ ref’d n.r.e.). An appellate court must assume, upon appeal of a case heard before the court without a jury, that such court considered only admissible evidence. Red Jacket Manufacturing Co. v. Adams, 346 S.W.2d 897 (Tex.Civ.App.-El Paso 1961, writ ref’d n.r.e.). Because there was other sufficient and competent evidence to show that the testatrix died intestate as to her real property, the error, if any, is harmless. Tex.R.Civ.P. 434. In passing on the sufficiency of the evidence to support the trial court’s findings, we will view the evidence in a light most favorable to such findings, and will presume that the trial court did not consider any improper evidence. Martin v. Taggart, 311 S.W.2d 749 (Tex.Civ.App.-Eastland 1958, no writ). Appellant’s fifth and sixth points of error are overruled.

Appellant complains in his seventh point of error of the trial court’s consideration of the testimony of four witnesses presented by the appellees. The witnesses were two of the testatrix’s co-workers, the law graduate who searched the records, and the testatrix’s niece, Mrs. Gleason, who testified that the testatrix knew her job well. She also testified that she saw no difference in her aunt’s knowledge and attitudes in the spring of 1976, when she last spoke with her aunt.

Appellant argues that the four witnesses’ testimony was incompetent to show any evidence of the testatrix’s knowledge in 1976 of the meaning of various technical words such as “personal effects,” “personal property,” and “real estate.” Appellant particularly points to the fact that both of the testatrix’s former co-workers had little or no contact with her after her retirement, and that both of them testified to the fact that neither was ever her supervisor. It is appellant’s contention that the remoteness in time of the witnesses’ contact with the deceased disqualifies their testimony as to the testatrix’s knowledge and intent at the later date when she executed her will.

The testimony of the niece and of the law school graduate was relevant to show the extent of the testatrix’s knowledge of transactions involving real property. The niece testified about her aunt’s testamentary capacity, and this was admissible to show that the testatrix knew as much, immediately prior to her death, as when she worked for the Harris County Clerk’s office.

The law graduate’s testimony showed the extensive involvement the testatrix had in the real estate market. This is supported by the fact that she owned some 13 various pieces of property at her death, and is competent to show her knowledge of the terminology used in the field.

Appellant’s challenge to the remoteness of the two co-worker’s testimony would have gone only to the weight of the testimony, not to its admissibility. Extrinsic evidence is admissible on the state of a testator’s family, on the status of his property, and as to other circumstances relating to him individually and to his affairs, to enable the court to determine the testator’s meaning in his use of language in his testamentary instrument. Anderson v. Dubel, 580 S.W.2d 404 (Tex.Civ.App.-San Antonio 1979, writ ref’d n.r.e.); see generally Federal Land Bank v. Little, 130 Tex. 173, 107 S.W.2d 374 (1937). Appellees, through the testimony of the two co-workers, showed the extent of the testatrix’s knowledge as to various technical terms. Even though the two co-workers were not in touch with the testatrix after her retirement, their testimony related to her knowledge between her retirement and her death, demonstrating both her testamentary capacity at a later age and the extent of her involvement in recordable transactions. The trial court did not err in considering this testimony; appellant’s seventh point of error is overruled.

We overrule appellees’ sole cross-point, which urges that the appellant’s appeal is frivolous and that attorney’s fees should be awarded appellees.

The judgment of the trial court is affirmed.


author: O’BRIEN, Judge.

text:
    STATE of Tennessee, Appellee, v. William Carroll KELLEY and Phillip Wayne Kelley, Appellants.
    Court of Criminal Appeals of Tennessee, at Nashville.
    Sept. 24, 1984.
    Permission to Appeal Denied By Supreme Court Dec. 17, 1984.

      William M. Leech, Jr., Atty. Gen. & Reporter, Jerry L. Smith, Asst. Atty. Gen., Nashville, Thomas M. Bottoms, Dist. Atty. Gen., Lawrenceburg, for appellee.
    Jerry Colley, Delk Kennedy, Columbia, for William Carroll Kelley.
    William A. Graham, Robert L. Holloway, Columbia, for Phillip Wayne Kelley.
   OPINION

O’BRIEN, Judge.

William Carroll Kelley and Phillip Wayne Kelley were brought to trial in the Giles County Criminal Court on a change of venue from Maury County. They were charged and convicted on three counts of first degree murder and one count of assault with intent to commit murder. They were sentenced to three terms of life imprisonment on the murder convictions and twenty-five years on the assault conviction. The sentences are to be served consecutively-

In summary the evidence shows that on June 23, 1982, a number of the members of the Estis family were fishing on a sandbar at a place called Vaughn’s Landing, in the Duck River in Maury County, Tennessee. They had noticed a tent pitched on a bluff above the river and Gary Estis had seen and recognized the campers as, “two boys from Culleoka”. Suddenly, without warning, a fusillade of shots centered on the Estis family from the bluff above the river. When the shooting ceased, three of the family members, Gary Estis, his wife Diane, and his mother, Hazel Estis had been killed. J.T. Estis, his father had been wounded. The defendants fled the scene. Shortly a police investigation centered on them and they were found at the home of William Carroll Kelley in Columbia. A search of the dwelling turned up a .22 caliber revolver which proved to be one of the weapons used in the assault on the Estises. Phillip Kelley led police officers to two .22 caliber rifles which had been hidden near the scene of the shooting. One of these belonged to him and one to William Kelley. Subsequent testing disclosed that these weapons too were used in the shooting on the river. William Kelley gave a statement in which he admitted he had been camping at the place on the river where the shooting occurred but denied any knowledge or participation in it. Phillip Kelley gave a statement incriminating himself and William Kelley in the shooting. He offered no explanation and told the officers he did not know why it happened. Included in his statement was the comment that he was taking “speed” at the time the incident occurred. There was much other testimony and evidence all pointing directly to the defendants as having committed a wanton, unprovoked, and senseless assault on the Estis family, including the testimony of a witness, Bobby Roland, who said William Kelley had told him there had been a shooting on the Duck River and that he had “shot one that didn’t move.”

Each of the defendants say it was error to deny motions for severance, and each of them assess different reasons.

William Kelley first calls up the proscription of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), against admission of an incriminating statement by a non-testifying code-fendant in order to preserve the right of an accused to confront witnesses against him. As our Supreme Court said in State v. Elliott, 524 S.W.2d 473 (Tenn.1975), “the Bruton rule proscribes, generally, the use of one codefendant’s confession to implicate the other as being violative of the nonconfessing codefendant’s Sixth Amendment right of confrontation.” Specifically, Bruton holds that admission of a nontesti-fying codefendant’s confession implicating a defendant at a joint trial constitutes prejudicial error even in the light of clear, concise and understandable instructions that the confession could only be used against the codefendant and must be disregarded with respect to an accused. Defendant also strongly relies on Elliott, supra, for the admonition that where a confession of a non-testifying codefendant contradicts, repudiates, or adds to material statements in the confession of other non-testifying codefendants, so as to expose the latter to an increased risk of conviction or to an increase in the degree of the offense with correspondingly greater punishment, the latter is entitled to test the veracity of the statements in the confession of the former. Neither Bruton nor Elliott are applicable to the facts in this case. Phillip Kelley’s redacted confession did not implicate William Kelley in the homicides in any fashion, or form whatsoever. His confession did not mention William Kelley, did not contradict, repudiate, nor add to any material statement in William Kelley’s confession as to expose him to an increased risk of conviction. The sentences in this case were the same for both defendants. There was no denial of confrontation, there was no abuse of discretion on the part of the trial court in denying a severance to William Kelley.

Phillip Kelley says a severance should have been granted because defenses between him and his codefendant were antagonistic in that he was admitting his participation in the homicides but was endeavoring to mitigate the degree of his participation while William Kelley disavowed any involvement in the crime. He has failed to show how he was prejudiced by William Kelley’s defense and we find no abuse of discretion in denial of a severance on that basis.

He further says his confession, which was redacted to prevent a denial of confrontation on the part of his codefend-ant, should have been admitted in its entirety to protect his right against self-incrimination. He cites several cases touching on the issue, specifically, State v. Robinson, 622 S.W.2d 62 (Tenn.Cr.App.1980), to sustain the contention that redaction was a violation of his right against self-incrimination. The facts involved in Robinson create a distinction which does not exist in this case. In Robinson two code-fendants each admitted their complicity in a robbery but endeavored to lay the blame on the other for the murder of the robbery victim. This obviously is not the factual basis in this case. There was nothing exculpatory of Phillip Kelley redacted from his confession.

Tenn.R.Crim.P. 14, dealing with severance of defendants, provides in pertinent part:

“14(c)(1) If a defendant moves for a severance because an out-of-court statement of a codefendant makes reference to him but is not admissible against him, the court shall determine whether the State intends to offer the statement in evidence at trial. If so, the court shall require the prosecuting attorney to elect one of the following courses:
(i) a joint trial at which the statement is not admitted into evidence or at which, if admitted, the statement would not constitute error; or
(ii) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been deleted, if, as deleted, the confession will not prejudice the moving defendant; or
(iii) severance of the moving defendant.
(2) The court, on motion of the State or on motion of the defendant other than under subdivision (c)(1), shall grant a severance of defendants if:
(i) before trial, ... it is deemed appropriate to promote a fair determination of the guilt or innocence of one or more defendants; or:
(ii) during trial, with consent of the defendant to be severed, it is deemed necessary to achieve a fair determination of the guilt or innocence of one or more defendants.”

Motions for severance were made pretrial, at the opening of the trial, at the close of the State’s proof, and at the close of all the evidence. We are satisfied that it was not reversible error to deny a severance to either of these defendants under the facts of this case. Moreover, in addition to the summary of the evidence we have included in this opinion, there was a wealth of testimony and physical evidence in the record which clearly and unerringly pointed to these defendants as the responsible parties for the homicides and the assaults on the victims in this case. If it could arguably be said that it was error to deny a severance to either of the defendants it was harmless beyond a reasonable doubt. State v. Elliott, supra; T.R.A.P. Rule 36(b).

Both defendants assert error and insist they were entitled to a mistrial because a large stick, inscribed with the initials WCK and a number of vulgarities, was brought into the courtroom and mistakenly placed with a group of items which the State intended to introduce as exhibits. When it became apparent the stick was not to be made an exhibit it was moved out of sight in the courtroom. The stick was in view of the jury for about ten minutes. No objection was made until a subsequent recess. The trial judge denied a motion for mistrial finding that the jury saw little of what was carved on the stick and that the impact of its presence was not sufficient to warrant such action. Defense counsel declined to have the judge deliver any curative instructions to the jury on the theory that such instructions would direct their attention to the stick. We agree with the trial judge that there was no manifest necessity for declaring a mistrial. See Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Cr.App.1977). There was no abuse of discretion. State v. Compton, 642 S.W.2d 745, 746 (Tenn.Cr.App.1982).

William Kelley submits that he should have been granted a new trial because a portion of his pretrial statement in which he requested counsel was read to the jury. This occurred when an Assistant District Attorney was reading the statement of Kelley into the record. The statement concluded with the remark by the Attorney General that they had another statement from Phillip Kelley. William Kelley’s response to that comment was, “I think I need a lawyer”. He was immediately advised that he did not have to say anything further unless he wished to, and indicated he did not. At this point the trial judge instructed the jury that defense counsel’s objection was appropriately made to introduction of any evidence of Kelley’s request for counsel or his desire to remain silent. The jury was advised not to infer anything from his request because he had a constitutional right to not respond to further questioning and to legal counsel.

Defendant relies on a statement in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966), at Footnote 37, in which the court said:

“In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. (Citations omitted).”

Our Tennessee Courts have ruled on similar issues in several cases since Miranda, one of which, Mays v. State, 495 S.W.2d 833 (Tenn.Cr.App.1972), is cited by defendant. In Mays a police officer testified that a defendant terminated interrogation to consult his attorney. The court held this to be a showing by the State that the defendant had claimed his privilege in the face of accusation, which was impermissible. The case was reversed for this as well as a number of other errors. On the otherhand, the State cites Harrison v. State, 532 S.W.2d 566 (Tenn.Cr.App.1975), in which the District Attorney General elicited the testimony from a witness that the defendant refused to make any statement after being advised concerning his constitutional rights. This Court held it was improper for the State to seek out this testimony from the witness in the light of the absolute and inviolable constitutional right of an accused to remain silent. We held that under the facts of the case, coupled with a specific instruction from the court to the jury that a person in custody who has been advised of his rights is not obligated to make any statement, that the incident did not trench upon the defendant’s constitutional rights to the degree which would nullify his trial and conviction. In State v. Flanagan, 443 S.W.2d 25, 223 Tenn. 134 (1969), a defendant was arrested and taken to the police station. Prior to being given Miranda type warnings he made a phone call to his attorney and then stated to the police “I am not going to tell you anything further. I don’t have anything to say.” The admission of this statement of the defendant into evidence was cited as error. After an analysis of the relevant portion of Miranda the court felt the testimony did not fall within the ambit of the admonition included in Footnote 37. In Ware v. State, 565 S.W.2d 906 (Tenn.Cr.App.1978) the court, recognizing a defendant’s constitutional right to remain silent in the face of accusations against him, held that when a defendant gave the police an exculpatory statement it was not improper for an officer to testify that he didn’t say anything else, or that he wouldn’t give a statement at the police station, on the theory that the defendant had not elected to remain silent in the fact of accusation. In Holt v. State, 591 S.W.2d 785 (Tenn.Cr.App.1979) a defendant had been advised of his Miranda rights and had signed a waiver. He then gave an exculpatory statement to the sheriff. The sheriff testified he had refused to sign the statement. The court followed Ware, supra, in holding that the defendant had not elected to remain silent and there was no abuse of his privilege to do so by admission of the testimony that he refused to sign the statement. The court declared that the admission of the evidence was not prejudicial to the defendant.

We are convinced that this is the appropriate ruling in this case. The admission of defendant’s statement “I think I need a lawyer”, into evidence, has every semblance of being inadvertent. The officer taking the defendants’ statement immediately responded, “all right, you don’t have to say another word. Do you wish not to make any other statement, any further statement, is that your wish?” The interrogation was then concluded without further questions. The court immediately admonished the jury as we have set out heretofore. The statement given by him was intended to be completely exculpatory. He had been fully advised of his rights.

There was other evidence that he had made admissions to a contemporary, which were properly admitted into evidence, involving himself fully in the homicides. Two of the weapons used in the killings were owned by him. One of these was found in his home, and the other found near the scene of the homicides where the police had been directed to search by his codefendant. It is inconceivable that the evidence complained of might have contributed to the conviction, and we are satisfied that its admission was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Phillip Kelley further says that his confession to the police should have been suppressed because it was involuntary. He says he was under the influence of drugs at the time of the confession; he has a sub-normal mental capacity; the police officer who took his statements was a relative with whom he had a close personal relationship; and the State failed to carry the burden of proving the confession was voluntary.

Our reading of this record indicates that is no evidence, except Phillip Kelley’s uncorroborated testimony, that he was under the influence of any drug of any type at the time he gave his statement to the police. To the contrary, laboratory tests of his blood and urine indicate otherwise, as did the testimony of the arresting officers. This issue is dismissed. There is nothing in this record to indicate his mental capacity to be sub-normal. He was given various psychological tests which indicated his IQ was borderline, low average. Although he was a grade school drop-out there was nothing in the evidence to indicate that he was not fully competent to give the confession. This issue is dismissed. We have also examined the evidence on the assertion that the defendant was over-reached because one of the interrogating officers was his maternal uncle. Defense counsel earnestly endeavored to show that defendant was influenced by the interrogating officer because of their family and personal relationship. We find nothing in this record to sustain that contention. After an extended and extensive suppression hearing in which a very patient and thorough trial judge gave defense counsel every opportunity to introduce evidence that this defendant’s confession was involuntary, he found this was not the case. We are wholly in accord with his judgment on this issue.

Defendant says the trial court should have instructed the jury that the law presumes a murder to be in the second degree once a killing is established. It is a correct statement of law to say a murder is presumed to be in the second degree, and that the burden is upon the prosecution to show the premeditation or deliberation necessary to raise the crime to first degree. State v. Bullington, 532 S.W.2d 556, 560 (Tenn.1976); State v. Story, 608 S.W.2d 599, 601 (Tenn. Cr.App.1980). The circumstances of a homicide may furnish the necessary proof of premeditation, such as death resulting from repeated shots or blows. Bullington, supra; Story, supra. The evidence adduced at this trial shows the killings to be willful, deliberate and malicious. Each victim was shot at least twice. One victim was shot a third time at close range. There was no explanation from either defendant for this senseless slaughter. The evidence preponderates heavily in favor of first degree murder. The trial court correctly instructed the jury on the lesser included offense of second degree murder as well as all lesser degrees of homicide. When jury instructions given are full, fair, and accurately state the law, there is no requirement that special instructions be given. State v. Chestnut, 643 S.W.2d 343, 352 (Tenn.Cr.App.1982). This issue is without merit.

It is insisted the trial court should have instructed the jury that the redacted statement of defendant was a summary and did not purport to relate all that he may or may not have informed the police about the activities of any other person on that day. The trial court, in denying this request, found the request to be an improper comment on the evidence which might result in a violation of Bruton, supra. The record shows that Phillip Kelley’s statement was presented to the jury, and referred to as a summary of conversation between defendant and Officer Harris. This defendant has failed to show any prejudice from denial of the requested instruction. We concur with the ruling of the trial judge on this issue.

Dr. Ben Bursten, a forensic psychiatrist, testified on behalf of the defendant, Phillip Kelley. Defendant contends the trial court should have permitted examination of Dr. Bersten concerning his opinion based on subjective findings and statements made to him relative to the defendant’s ingestion of drugs. These statements were not in the record. The trial court ruled that statements made by defendant to a psychiatrist were not admissible and the psychiatrist must limit his testimony to responses to hypothetical questions, or to tests which he actually conducted. He reasoned that to do otherwise would enable a defendant to introduce evidence into the record upon which the State would have no right of cross-examination. This ruling was correct. The defendant requested the court to apply the provisions of T.C.A. Sec. 24-7-114 which applies to the admission of medical opinions based on subjective findings in civil cases. This reasoning is not applicable in criminal cases for the reasons we have discussed.

We have thoroughly read this record and have found no reason why the judgment of the trial court should not be affirmed.

Judgment affirmed.

DUNCAN and SCOTT, JJ., concur.


author: ONION, Presiding Judge.

text:
    Terry William LEE aka Terry Lee Medina aka Terry William Medina, Appellant, v. The STATE of Texas, Appellee.
    No. 69412.
    Court of Criminal Appeals of Texas.
    Jan. 11, 1985.
    Charles T. Conaway, San Antonio, for appellant.
    Sam D. Millsap, Dist. Atty. and Edward L. Sargologos, Asst. Dist. Atty., San Antonio, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

Appeal is taken from an order denying bail under the provisions of Article I, Section 11a of the Texas Constitution.

The record reflects that on December 19, 1984, the State filed a motion requesting a denial of bail for appellant under the provisions of Article I, Section 11a. In that motion, it was alleged:

“The State so moves because the defendant is presently under indictment in the following: POSSESSION OF HEROIN. Furthermore, while defendant was on bond for the above, he was subsequently filed on for the offense of POSSESSION OF HEROIN, in Cause No. NM182886, by authority of TOM E. RICKHOFF, said new offense occurring on or about DECEMBER 18, 1984, in Bexar County, Texas.”

The trial court held a hearing on the State’s motion on December 19, 1984. At the conclusion of that hearing, the court ordered that appellant be held without bail for the offense allegedly committed on the previous day.

Appellant maintains the trial court erred in ordering that bail be denied. Specifically, appellant contends the State failed to introduce evidence substantially showing his guilt of the offense allegedly committed while he was on bail.

Article I, Section 11a provides in part: “Any person ... accused of a felony less than capital in this State, committed while on bail for a prior felony for which he has been indicted, ... after a hearing, and upon evidence substantially showing the guilt of the accused of the offense ... committed while on bail ..may be denied bail pending trial by a district judge in this State ...”

The record contains a transcription of the court reporter’s notes from the hearing on the State’s motion. No witnesses were called during that hearing. The record reflects that the prosecutor, without objection, simply stated:

“There has been an additional charge filed, which the paperwork is being brought over. Terry William Lee, while out on bond for said offense, was arrested yesterday. A search warrant was executed at Terry William Lee’s residence being at 404 East Huff, on a search warrant, at such time approximately one-half ounce of heroin, for which purpose the search warrant was executed, was confiscated.”

The burden of proof in a proceeding seeking to deny bail under Article I, Section 11a, is a “substantial showing” of the guilt of the accused. Such burden is a far less burden than beyond a reasonable doubt as required at the trial on the merits. Ex parte Moore, 594 S.W.2d 449 (Tex.Cr. App.1980). However, the general rule favors the allowance of bail. Ex parte Davis, 574 S.W.2d 166 (Tex. Cr.App.1978). In Taylor v. State, 667 S.W.2d 149 (Tex.Cr. App.1984), this Court noted that the exceptions to the constitutional right to bail as set forth within Article I, Section 11a, include the seeds of preventive detention urged by many to be abhorrent to the American system of justice. Thus, when the State seeks to have bail denied under the provisions of Section 11a, the burden is on the State to show that there has been compliance with the strict limitations and safeguards within that section.

We find that the evidence in the instant cause fails to substantially show the guilt of appellant for the offense allegedly committed while on bail. As noted above, the prosecutor simply stated that appellant had been arrested and that an additional charge had been filed. Additionally, the prosecutor indicated that contraband had been recovered at appellant’s residence pursuant to the execution of a search warrant. However, there was no evidence introduced showing that appellant was present when the contraband was recovered or otherwise affirmatively linking him with the contraband. We conclude that the State has failed to sustain its requisite burden of proof as required by Article I, Section 11a.

The judgment of the district court denying bail is reversed and the cause is remanded for bail to be set in a reasonable amount.


author: CLINTON, Judge. W.C. DAVIS, Judge,

text:
    Samuel BORDELON, Appellant, v. The STATE of Texas, Appellee.
    No. 67105.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 16, 1985.

      George Michael Jamail, Beaumont, for appellant.
    James S. McGrath, Dist. Atty., and R.W. Fisher, Asst. Dist. Atty., Beaumont, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

CLINTON, Judge.

This is an appeal from a conviction for burglary of a habitation in which.the jury assessed appellant’s punishment at 15 years confinement.

In his 10th and 11th grounds of error, appellant complains of the admission of the two motel keys and a motel key tag; he argues these items were never shown to be relevant to any issue in the case, and as such, were meant solely to prejudice the jury-

The evidence adduced at trial revealed that on August 15, 1979, Glen Wilson, his wife and three children were asleep in adjoining rooms of the Red Carpet Inn in Beaumont when at about 5:00 a.m., Wilson awoke to see “a dark male about 5' 10" or 5' 11", 150-160 pounds striding toward the door at the foot of his and his wife’s bed. The man was black and wearing “an apple cap, or cap like sports car drivers wear.” Wilson could not see the man’s face and was never able to identify anyone as the intruder.

The family discovered Mrs. Wilson’s purse and all its contents (including Mast-ercharge, Visa, Foley’s, Joske’s, Sakowitz and Conoco credit cards) was missing. There was no evidence of forcible entry into the room.

In the afternoon, between 1:00 and 3:00 p.m. on the same day, a black male identified as appellant, presented a Visa credit card bearing the name “Glenn Wilson” for payment of a camera bag and an air cable release at Thomas Camera Shop. Appellant signed “Glenn Wilson” on the credit slip. On the same day in the early afternoon, appellant presented the same Visa credit card for payment of a Timex watch in a Woolco Department Store in Beaumont, and signed the slip “Glenn Wilson.”

Also introduced at trial were photographs of appellant, seized at the time of his arrest, wearing a hat similar to the one observed by Wilson on the burglar, as well as other items which corroborated proof that appellant had used Wilson’s credit card at Thomas Camera.

In its case in chief, the State was permitted to introduce over appellant’s strenuous objection two motel keys and the tag to a motel key which had been found in a briefcase seized from appellant’s car and which had also contained a black notebook, a purchasing agent’s books and other papers appearing to be those of a salesman. The evidence was that neither key fit the Wilson’s room nor any other room at the Red Carpet Inn. The trial judge, however, allowed this evidence on the force of the prosecutor’s argument that the keys were like “burglar tools:” “It’s clearly relevant to the fact that this man is a burglar.”

The only real issue in the case was appellant’s identity as the burglar.

Appellant’s theory of the case was that he had been wrong to use a credit card not belonging to him, but that the State’s evidence did not exclude the possibilities that he had found it or that it had been given to him by the true burglar, in either of which cases appellant was not guilty of the burglary.

Clearly, then, the State was entitled to offer any prior specific act of misconduct on the part of appellant consisting of distinctive characteristics which were also common to the burglary of the Wilson family; material distinguishing similarity of an extraneous offense to the primary offense shows the two offenses were the work of the same person. Therefore, it is assured the evidence has greater potential for assisting the jury in resolving the issue of identity than it has for confusing the jury or diverting their attention from the material issues in the case. See generally Collazo v. State, 623 S.W.2d 647 (Tex.Cr.App. 1981); see also Messenger v. State, 638 S.W.2d 883 (Tex.Cr.App.1982) (Opinion on original submission); Ford v. State, 484 S.W.2d 727 (Tex.Cr.App.1972).

But in this case the clear inference the State sought to have drawn from appellant’s possession of two motel keys and a motel key tag — as the prosecutor himself told the trial judge — was that appellant was a motel burglar in general, and therefore, committed the motel burglary of the Wilson family.

Evidence tending to establish a defendant is a “criminal generally” is patently inadmissible. See generally Murphy v. State, 587 S.W.2d 718 (Tex.Cr.App.1979); see also Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972).

The determinative question in this case is whether the erroneous admission of this evidence requires reversal of the conviction, or is harmless.

Under the particular circumstances here appellant’s possession and presentation of Glen Wilson’s credit card eight to ten hours after it was obtained in a burglary, appears sufficient to support the jury’s verdict finding appellant guilty of that burglary; however, we are not able to characterize such evidence as “overwhelming.”

Neither will a reading of the record as a whole support the view that the inadmissible evidence could not have influenced the jury’s verdict. Indeed, the prosecutor’s arguments illustrate how critical the State thought it to be to its case:

“He brought in no evidence to show that the man didn’t commit the crime. * * * We don’t have the key to the Red Carpet Inn, as he told you. We don’t have that. These keys were received a month and a half afterwards and the only thing that was ever looked at was Samuel Borde-lon’s car. We couldn’t go into his house. * * * For all I know, he might throw away keys every time a burglary is committed, I don’t know.
[Objection on ground that ‘he’s arguing that Mr. Bordelon has committed other burglaries,’ overruled.]
* * * * * *
It is the law and always presumed that recent, unexplained, explicit and conscious possession of stolen property is sufficient evidence upon itself to base a verdict of guilty.[] * * * But we’ve showed you more; we’ve showed you a lot more and that’s all you need.
⅜ ⅝ ⅜ # ⅝
One more piece of evidence. Finally, Detective Gates told you that when he inventoried his car ..., they found, in a briefcase four motel keysand a tag.... Now I ask you, why did he have the motel keys[]
Do you remember how the room was entered? No sign of forcible entry. You remember the man locked the door? Why did he have the motel keys? Do you think he has a key collection or is it because he’s a motel burglar? That is evidence that he is guilty beyond a reasonable doubt.
⅝ * * * * *
[Prosecutor sets up a hypothetical robbery of a neighbor with circumstantial evidence similar to that adduced herein.] Don’t you know right then who did it? And especially if the evidence is uncoU-tested?
[Objection overruled]
If you don’t catch up with that man right then — but the neighbor says, ‘Look, whoever was in my house, they had burglary keys. They didn’t break in.’ You don’t catch up with that man right then, but a month and a half later, you do.... and you see burglary tools.
[Defense Counsel]: Your Honor, I object to him saying ‘those are burglary tools.’ That’s an improper statement.
THE COURT: The objection is overruled.
[By Prosecutor]: Don’t you know then the man did it? That’s guilt beyond a reasonable doubt.
Now, you come up and you can go back there and come up with all sorts of wild theories; let him off; let the man go free, and say, ‘Here, Mr. Bordelon, I’m sorry. I’m sorry we ever bothered you. Here, here’s the key back.’ You could do that.
[Objection overruled]
I will never be able to present to you a stronger case. Think about it. Use your common sense. We put him in possession of the stolen property, everything that was stolen.[]
* * * It’s just like the same type of hat. We placed him right across the street when the crime was committed, easy access, just go over and do it. We showed, right there the keys that he needed to commit it.
That’s guilt beyond a reasonable doubt_”

The determination of whether errors of this nature require reversal of a conviction cannot be made without a careful and complete reading of the record as a whole, deliberate consideration of the facts adduced, the contested issues in the case and the cumulative force of the evidence.

In the instant case, the erroneous admission of this evidence was seriously compounded by the prosecutor’s use of it during final argument as he outlined the State’s theory of what the evidence established—less than accurately at that. If we are to label a patent evidentiary error “harmless,” it must be demonstrated with clarity, in the context of the case, that the inadmissible evidence has not made any material contribution to the jury’s verdict. This we cannot do here.

The jury’s consideration of the inference arising from the complained of evidence may well have been determinative in the jury’s verdict of guilty, under the record before us.

Accordingly, the judgment of conviction is reversed and this cause is remanded to the trial court.

W.C. DAVIS, Judge,

dissenting.

The majority finds the admission of the motel keys to be harmful error. In light of the uncontradicted proof of appellant’s unexplained possession and use of Glenn Wilson’s credit card eight to ten hours after it had been stolen, I do not agree that the error is harmful. Also introduced were photographs of appellant wearing a hat similar to the one that Wilson saw the burglar wearing. Compare Cunningham v. State, 500 S.W.2d 820 (Tex.Cr.App.1973) in which admission of evidence more prejudicial than that in the instant case was held harmless. In view of the evidence of guilt, I dissent to the majority’s holding that the error is harmful.

ONION, P.J., joins.

      . By the time the State’s brief on appeal was written, their sole argument had become that admission of the keys was “harmless error.” (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

      . The trial judge granted a State’s motion in limine which prohibited the defense from informing the jury that appellant had already been convicted of the two credit card abuse transactions and sentenced to four years confinement; but then the court permitted the prosecutor to argue that defense counsel was asking the jury to let appellant "go free,” by overruling objection thereto.
      Complaint of this argument is the subject of appellant’s ground of error 13.

      .If the prosecutor’s suggested analogue between these items and “burglar tools" had been a true one, the evidence might have been more probative than prejudicial. But possession of burglar tools is admissible in burglary cases as a circumstance from which it may be inferred that such tools were used to commit the primary offense. In the instant case, the evidence was undisputed that the motel keys could not have been used to burglarize the Wilsons.

      . Appellant’s objection to this highly improper argument [see Hardesty v. State, 656 S.W.2d 73 (Tex.Cr.App.1983); and Hite v. State, 650 S.W.2d 778 (Tex.Cr.App.1983) ], was overruled.

      . In fact, only two keys were found.

      . The only stolen item the evidence placed in appellant’s possession was the VISA credit card.

      . Because of our disposition of appellant's 10th and 11th grounds of error, we need not address the other 12 grounds he advances.