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    Bette Bettes DAILEY, Deceased, Appellant, v. John V. WHEAT, et al., Appellees.
    No. A14-82-112CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 4, 1984.

      Ben H. Schleider, Jr., Carl H. Moerer, Schleider & Francis, Talmage _M. Guy, Hany G. Dippel, Houston, for appellant.
    Will G. Dickey; Little, Dickey & Stirman, Taylor Moore, Houston, for appellees.
    Before J. CURTISS BROWN, C.J., and DRAUGHN and ELLIS, JJ.
   OPINION

J. CURTISS BROWN, Chief Justice.

This is a will contest.

Ruth Bettes, the testatrix, died on June 12, 1980, in a Houston hospital at the age of 84 years. The will dated June 21, 1978, and a codicil dated March 21, 1979, were filed for probate by proponent, John V. Wheat, attorney and financial adviser of testatrix. Under the terms of the will and codicil, Mrs. Bettes left her estate as follows:

1. Specific cash bequest of $50,000 to Wheat;
2. Specific cash bequest of $40,000 to three servants;
3. Specific cash bequest of $10,000 to Grace Daily, one of the five daughters of Contestant;
4. 10% of the residual estate to the Episcopal Church;
5. 90% of the residual estate to charities selected by Wheat to be “used in perpetuity exclusively for the benefit of schools, colleges, universities, churches or other charities which are charitable organizations.

Bette Bettes Daily, testatrix’s only child, filed a timely contest. Following a lengthy trial, the jury, in response to special issues, found (1) the testatrix was of sound mind when the will and codicil were executed and (2) the testatrix’s will and codicil were not the result of proponent’s undue influence. Contestant filed a motion for judgment n.o.v. seeking to set aside the jury findings on undue influence. Such motion was overruled and final judgment was entered on the verdict admitting the will and codicil to probate. Contestant’s motion for new trial was also overruled, following which this appeal was duly perfected. Ap-pellees are Wheat, the Protestant Episcopal Church Council of the Diocese of Texas (or Episcopal Church), and the Attorney General of Texas . Appellant assigns ten points of error. She has not made our already difficult task any easier by setting forth her points in an argumentative and multifarious manner. However, we understand the thrust of her arguments, and will attempt to address the claims as submitted.

In her first three points of error, appellant contends (1) that the undisputed evidence shows as a matter of law that undue influence was exercised by Wheat upon testatrix; (2) that by reason of the fiduciary relationship existing between Wheat and testatrix a presumption of invalidity arose which was not adequately rebutted by proponent; and (3) that the jury’s finding was insufficiently supported by the evidence or was against the great weight and overwhelming preponderance of the evidence.

A leading case on undue influence is Long v. Long, 133 Tex. 96, 125 S.W.2d 1034 (1939). In that case, the jury found that while testatrix possessed testamentary capacity at the time the will was signed, the will was the product of undue influence. The court of civil appeals reversed and rendered, admitting the will to probate. In addressing the question of undue influence, the supreme court stated:

It is not possible to frame a definition of undue influence which embraces all forms and phases of the term. Every case is different from every other case, and must depend largely on its own facts and circumstances. Generally speaking, undue influence is such influence or dominion as exercised at the time, under the facts and circumstances of the case, which destroys the free agency of the testator, and substitutes in the place thereof the will of another. Undue influence has also been defined as that dominion acquired by one person over the mind of another which prevents the latter from exercising his discretion, and which destroys his free agency. Also, undue influence has been defined as that which compels the testator to do that which is against his will from fear, the desire of peace, or some other feeling which he is unable to resist.” 42 Tex.Jur., p. 792, Sec. 2, and authorities there cited.

Id. 125 S.W.2d at 1035.

The Court further stated:

In spite of the rule just announced, weakness of mind and body, whether produced by infirmities of age or by disease or otherwise, may be considered as a material circumstance in determining whether or not a person was in a condition to be susceptible to undue influence.
A person of sufficient mental capacity to make a will has the right to devise his property as he may see fit, so long as he transgresses no law. Also, a person in making a will rests under no legal obligation to devise his property according to the laws of descent and distribution, or according to any moral law, and the mere fact that a testator has ignored such laws is no ground for setting aside his will. In spite of this, however, the fact that a testator has left a will that is unnatural in its terms, and makes a difference between those who, according to natural law, ought to stand equal as to his property may be considered as a circumstance, along with other circumstances in determining whether or not the will was a product of undue influence.”

Id. 125 S.W.2d at 1036.

The court in Long reviewed the particular evidence at hand and reached the conclusion that a fact issue was presented. Therefore, it reversed the judgment of the court of appeals and remanded the case to that court for consideration of the factual insufficiency points which had not been passed on.

In Rothermel v. Duncan, 369 S.W.2d 917 (Tex.1963), a Mrs. Duncan contested the will of Mrs. Rothermel. The jury found undue influence had been exercised upon the deceased by her son, Louis Roth-ermel. Based upon the jury verdict, the trial court entered judgment in favor of the contestants. The court of civil appeals affirmed. The issue before the supreme court was whether the record contained any evidence of probative value to support the jury’s findings. The record revealed that upon the death of his father (Mrs. Rothermel’s husband), Louis left school and assumed responsibility of providing support for his mother, sister, and brother. The sister later died. Mrs. Rothermel relied upon Louis to continue support for her until investments made by him for and in her name became sufficient to provide for her. In 1939, she executed her first will, dividing her estate equally between her boys. Some time after his brother’s death, Louis took his mother to his farm in Waller County. He employed a woman named Blumenthal to care for his mother and look after his business. Mrs. Rothermel was 93 years of age and suffered from common maladies of age, such as hearing loss and poor eyesight. She also suffered from arthritis and diabetes. She was devoted to Louis and trusted him completely. She relied entirely upon him to handle all of her affairs. In 1957 or 1958, Mrs. Rothermel told Louis she wanted to make another will leaving everything to him. Louis drew the new will, and suggested to his mother that her will provide that if he predeceased her, his daughter would be executrix and the property would be divided equally among the daughter’s grandchildren and great grandchildren. No attorney was consulted. On January 30, 1958, the new will was signed by Mrs. Rothermel before appropriate witnesses which were gathered by Louis. Mrs. Rothermel continued to live with Blumenthal until her death in 1958 at 94 years of age. Evidence in the record revealed that Mrs. Rothermel loved the children of both her sons equally. Disinterested witnesses heard Mrs. Rothermel declare numerous times within five years of her death that she intended to leave her estate equally to her grandchildren.

Responding to the issue of undue influence, the supreme court stated that influence is not undue unless the free agency of the testator is destroyed and a testament produced that expresses the will of the one exerting the influence. They added that while one may request or even importune and entreat another to execute a favorable dispositive instrument, unless the importu-nities and entreaties are so excessive as to subvert the will of the maker, they will not invalidate the instrument. The court further stated that the exertion of undue influence cannot be inferred alone from opportunity, but there must be some testimony, direct or circumstantial, to show the influence was present, and, in fact exerted. After reviewing the facts set out above, the court held that there was no evidence of such influence. See also Estate of Woods, 542 S.W.2d 845 (Tex.1976).

Turning now to the case before us, we note the following. Mrs. Bettes was 84 years old when she died. She was survived by her only child, Mrs. Daily, and her five granddaughters. Por several years before her death, she lived alone in a large home in the River Oaks section of Houston. She was at one time a very wealthy woman, but she lost most of her fortune in the 1960’s when the T.J. Bettes Mortgage Company collapsed. She was left with her exempt assets, including her home, her jewelry, and some stocks and bonds. Upon encountering numerous financial problems, Mrs. Bettes turned to John Wheat for assistance. Wheat had been practicing law in Houston for many years, and had done some work for the Bettes family or company since the 1950’s. During this financial crisis, both Mrs. Bettes and her creditors chose Wheat to act as trustee of her assets, conveying title of the assets to him for the protection of Mrs. Bettes and her creditors. At a later date, Wheat assisted in solving a tax problem that resulted in a substantial tax refund to Mrs. Bettes. From 1970 until her death, Wheat, or someone in his employ, assisted Mrs. Bettes in paying her bills and in handling her affairs, including the preparation of her tax returns. When she became ill, she selected Wheat to exercise her power of attorney. Due to a cash flow problem, Mrs. Bettes had to sell or pledge some of her assets from time to time to pay her monthly bills and her medical and nursing expenses. While she made the decision as to what to sell or to pledge, John Wheat advised her in this regard. In addition, he guaranteed one of her promissory notes. After 1970, Wheat charged Mrs. Bettes no further legal fees. He claimed he did not wish to have her sell anything to pay his fee.

On July 22, 1972, Mrs. Bettes executed a will which created a spendthrift trust for appellant and her daughter, Eliza. On March 22,1975, Mrs. Bettes executed a will which eliminated the appellant as a major beneficiary of her estate, leaving the bulk of the estate to a spendthrift trust for her granddaughters, Ruth and Eliza. In August 1975, Mrs. Bettes took Ruth and Eliza on a trip to Hawaii. For some reason she seemed to be quite upset when she returned. Mrs. Bettes called an employee of Wheat and advised her that Mr. Wheat had been a good friend, had always stood by her, and had been present when she needed him. Therefore, she wished to make a $50,000 bequest to Wheat. On September 12, 1975, Mrs. Bettes executed a new will which left specific bequests of $50,000 to Wheat, $25,000 to her servants, and the remainder to charity with Wheat as trustee. This will was prepared by Wheat or his law firm. On June 21, 1978, Mrs. Bettes executed the will in question.

At the direction of Wheat, Jack Eckels of the law firm of Chamberlain, Hrdlicka, White, Johnson and Williams prepared the June 1978 will. Eckels had never met nor consulted with Mrs. Bettes before the execution of such will. He had no information concerning testatrix, her estate, nor family relationship. After preparing the will as directed by Wheat, Eckels and two secretaries from his office took it to the testatrix’s home on June 21, 1978. Eckels spent five or ten minutes explaining the substantive provisions of the will to Mrs. Bettes. Eckels then gave her the thirteen page will to read which was variously estimated to have taken fifteen minutes to one hour. When Eckels asked Mrs. Bettes if she had any questions, she said she did not. She then duly executed the will. The safekeeping receipt was later sent to Wheat. Mrs. Bettes did not receive a copy of the will, and there is no indication that she ever saw it again.

Although Mrs. Bettes was seriously ill on occasion during the last years of her life, she was mentally alert and competent up until the time of her final illness. Although the evidence suggests that Mrs. Bettes may have indulged in alcohol, there was ample evidence to show that she had no drinking problem at the time the will and codicil under attack were executed. Mrs. Bettes likewise had been prescribed anti-depressant drugs; however, these were discontinued prior to the date of the execution of the will in question.

The relationship between Mrs. Bettes and appellant was a rocky one. During the time they lived together, a number of conflicts and quarrels developed, largely over Mrs. Daily’s conduct. Mrs. Daily appears to have had a serious drinking problem but, to her credit, had overcome it many years before the time of the trial. As late as November 1974, Mrs. Bettes’ physician noted, “in the last two months she has marked exacerbation of problems relative to her daughter.” Mrs. Bettes also told her attending physician in August of 1975 that her family problems were still persisting and remained essentially unchanged. On occasion, Mrs. Bettes asked her doctor to request that appellant not visit her in the hospital during illnesses because appellant made her nervous. Both Mrs. Bettes and Mrs. Daily maintained a certain reserve in their relationship. Mrs. Bettes did not discuss her will with Mrs. Daily nor the fact that she was seeing a licensed social psychotherapist. When Mrs. Bettes sold her jewelry to cover certain expenses, she did not entrust the sale to her daughter, despite the fact Mrs. Dailey worked for a jewelry store and could have made a substantial commission on the sale. In fact, Mrs. Bettes never gave Mrs. Daily power to handle matters on her behalf.

Up until the trip to Hawaii, Ruth Daily was Mrs. Bettes’ favorite grandchild and received special treatment in many of the wills executed by Mrs. Bettes. During the month the will under attack was executed, Ruth borrowed $5,000 from Mrs. Bettes to open a business with her boyfriend. She never opened the business and never repaid the loan. During the last years of Mrs. Bettes’ life, Ruth Daily chose to call herself Ruth Goldfein rather than Ruth Daily or Ruth Bettes. Ruth was the beneficiary of a spendthrift trust which had a value in 1973 of $175,000. The full amount had been dissipated by the time of trial. In addition, a problem arose regarding granddaughter Eliza while she was employed by proponent’s wife. It is unnecessary to detail the event, but would nonetheless justify a change in Mrs. Bettes’ attitude.

In contrast, appellant advances the following facts and contentions. The provisions of the will authorize Wheat to select the charity to benefit under the will, including, perhaps, his own foundation if it complied with applicable regulations of the Internal Revenue Service. Under the terms of the will: (1) Wheat has broad investment and selfdealing powers; (2) upon his death, Wheat’s powers and benefits as executor and trustee go to his son and then to his daughter; (3) Wheat’s liability is limited to bad faith or gross negligence; (4) Wheat is to be compensated for the reasonable costs and expenses incurred in connection with his duties, and such compensation inures to the benefit of his family successors. No time limit is fixed for the charitable donations contemplated, other than compliance with the requirements of the Internal Revenue Service.

In the declining years of testatrix’s life, Wheat became her confidant as well as her attorney and financial adviser. He would visit her home to watch sporting events on television. He gave Mrs. Bettes his private unlisted number so that she could call him at any time. Wheat was instrumental in securing the services of the psychotherapist, Ned Bartee, to visit Mrs. Bettes. Wheat kept copies of Mrs. Bettes’ various wills and did not provide her with a copy at her home. He maintained all records on her behalf, both relating to her affairs and that of the T.J. Bettes Company. Wheat’s secretary handled the details of Mrs. Bettes’ affairs after he was appointed her agent by power of attorney in December of 1974. This included the preparation and filing of all of Mrs. Bettes’ insurance and medicare claims, as well as the data for Mrs. Bettes’ income tax returns. The secretary received no compensation or gifts from the testatrix for these services. However, she received from Wheat the largest annual raise she had ever received shortly after he filed the will in question for probate.

Despite appellant’s contentions, the overwhelming evidence is that Mrs. Bettes was an intelligent and strong-willed woman of sound mind, despite declining health in her last years. She had a testamentary plan which changed many times during the last 30 years of her life. A review of the wills and codicils executed over many years show that appellant and her daughters were mentioned on many occasions, but also show that Mrs. Bettes never intended to leave her whole estate to the appellant or appellant’s children. They do reflect Mrs. Bettes’ interest in leaving a portion of her estate to charities. They also demonstrate, her unbending confidence in Wheat. For several years Mrs. Bettes knew that appellant and her daughters were not beneficiaries of a major portion of her estate. She confirmed this disposition in conversation with others. Mrs. Bettes was available to appellant to discuss this matter but the relationship between the parties was not such that she could do so. Whatever her reasons may have been, the record supports the belief that she deliberately elected to favor charities rather than appellant. That she incidentally benefitted Wheat, as well as making him a direct bequest, also seemed to be her deliberate decision.

Appellant further contends that the conceded fiduciary relationship between Wheat and Mrs. Bettes gives rise to a presumption of undue influence. She claims that proponent Wheat was required to establish by clear and convincing evidence that the transaction between him and testatrix was fair and equitable. Present Texas law does not support appellant’s sweeping conclusions relative to the so-called “presumption.” Some Texas cases applying such a presumption deal with in-tervivos transactions, such as contracts (frequently attorney’s fees), gifts of real or personal property, and the holding or handling of assets such as stocks, bonds, etc. For example, Archer v. Griffith, 390 S.W.2d 735 (Tex.1964), involved an action to set aside a deed executed by a Mrs. Griffith through her attorney pursuant to the provisions of a contingent fee contract between the parties. The case was tried to the trial court without a jury and without findings of fact or conclusions of law. In upholding the action of the trial court, the supreme court stated that an attorney-client relationship is highly fiduciary in nature; therefore, their dealings with each other are subject to the same type of scrutiny as a transaction between an ordinary trustee and his cestui qui trust. As such, the burden of establishing the fairness of a transaction is on the attorney, based upon the general rule that one who bargains in a matter of advantage with a person, placing a confidence in him, is obligated to show that a reasonable use has been made of those confidential relations with each other. This rule applies to a contract or other transaction relating to compensation, provided the attorney-client relationship was in existence at the time.

Turning now to cases involving wills, we first consider the case of Lipper v. Weslow, 369 S.W.2d 698 (Tex.Civ.App.-Waco 1963, writ ref’d n.r.e.), a will contest on the grounds of undue influence. Contestants were three grandchildren of a deceased son of testatrix. The proponents were testatrix’s two surviving children, one of whom was Frank Lipper, an attorney, and against whom the undue influence was charged. In 1956, testatrix executed the will in controversy which was prepared by Frank Lip-per. Lipper was one of the beneficiaries under the will as well as the named executor. He was a lawyer, and admitted being scrivener of the will. The evidence also showed, however, that testatrix was physically active, and of sound mind and strong will at the time the will was executed. The court, in concluding there was no evidence of probative force to support the jury’s verdict of undue influence, stated that while the contestants established a confidential relationship, the opportunity, and perhaps a motive for undue influence by defendant, proof of this type simply sets the stage. Contestants must go forward and prove in some fashion that the will as written resulted from the defendant substituting his mind and will for that of the testatrix. Further, despite the fact the will and circumstances might raise suspicion, it does not supply proof of the vital facts of undue influence — the substitution of a plan of testamentary disposition of another as the will of the testatrix. The court found no undue influence, stating that “[a] person of sound mind has a legal right to dispose of his property as he wishes, with the burden on those attacking the disposition to prove that it was the product of undue influence.” (emphasis added.) Id. at 703.

In re Estate of Willenbrock, 603 S.W.2d 348 (Tex.Civ.App.-Eastland 1980, writ ref’d n.r.e.), involved a will contest wherein the sole heir-at-law contested the will of Elinda Willenbrock based on lack of testamentary capacity and undue influence by her attorney, a beneficiary under the will. Certain charities who were also beneficiaries under the will intervened. Prior to trial, the parties stipulated that the testatrix possessed testementary capacity, and the sole issue for determination was whether the attorney unduly influenced testatrix to include himself in the will. The jury found that testatrix was acting under undue influence, but the trial court disregarded such finding and entered judgment admitting the will to probate. Appellant attacked the trial court’s action, stating that because testatrix’s attorney was a beneficiary of the will, it should be presumed that he unduly influenced her to leave bequests to him. In response, the court stated that the fact the attorney occupied a fiduciary relationship with the testatrix, standing alone, was insufficient to raise an issue that the will was executed as a result of undue influence. It further stated that frequently a beneficiary under a will occupies a close family relationship with the testator or testatrix, and while a eonfiden-tial or fiduciary relationship may exist, this alone does not prove undue influence. The court concluded that the evidence did not raise the issue of undue influence, and thus affirmed the trial court. While we may question the holding of both Lipper and Willenbrock, that no fact issue for the jury was presented in those cases, it is nonetheless clear that, as yet, Texas has not adopted the sweeping presumption sought to be announced by the contestant in the case at hand.

In Texas, the rale seems to be established that although one may be sick and aged, one may dispose of his or her property as either he or she may elect, subject to the testamentary disposition being free from undue influence. We believe that a question of fact was raised for the jury in this case, and we decline to disturb the jury’s verdict. We overrule appellant’s points of error one through three.

In her fourth point of error, appellant argues the trial court erred in refusing to grant a new trial because of the improper admission of evidence previously prohibited by a motion in limine. The trial court granted § 3(a) of appellant’s motion in li-mine which reads:

3. The following matters would not be admissible for any purpose in the cause:
a. That contestant and cross-plaintiff, Bette Bettes Daily, was given by or inherited from her mother Ruth R. Bettes, one-half of the Bettes residence located on Kirby Drive, in the City of Houston, Texas. The facts are that decedent disclaimed her interest in one-half of the residence for federal tax purposes.

As stated in Wilkins v. Royal Indemnity Co., 592 S.W.2d 64 (Tex.Civ.App.-Tyler 1979, no writ):

The purpose'of a motion in limine is to avoid the injection into trial of matters which are irrelevant, inadmissible, and prejudicial. Vega v. Royal Crown Bottling Co., 526 S.W.2d 729 (Tex.Civ.App.-Corpus Christi 1975, no writ); Redding v. Ferguson, 501 S.W.2d 717 (Tex.Civ.App.-Port Worth 1973, writ ref'd n.r.e.). The granting or overruling of a motion in limine is not a ruling on the evidence and, therefore, cannot be error. Redding v. Ferguson, supra; Biard Oil Co. v. St. Louis Southwestern Railway Co., 522 S.W.2d 588 (Tex.Civ.App.-Tyler 1975, no writ). Consequently, the party opposing the admission of certain evidence still has the burden of interposing a specific objection at the time the evidence is offered (Emphasis added.) Biard Oil Co. v. St. Louis Southwestern Railway Co., supra; K-Mart No. 4195 v. Judge, 515 S.W.2d 148 (Tex.Civ.App.-Beaumont 1974, writ dism’d). Therefore, any error in the trial court’s refusal to admit or exclude the testimony of a witness must be shown to have been such a denial of appellant’s right as was reasonably calculated to cause and probably did cause rendition of an improper judgment. Vega v. Royal Crown Bottling Co., supra; Clark v. Turner, 505 S.W.2d 941 (Tex.Civ.App.-Amarillo 1974, no writ); Rule 434 T.R.C.P.

At trial, numerous references were made by appellee to the subject of appellant’s motion in limine. Appellant’s proper recourse was to object and ask the court to instruct the jury to disregard, and, if such references continued, to move for a mistrial. Appellant argues in her brief that it is “unrealistic” to think that traditional curative actions by the trial court would have been effective, and that such action by her would have aggravated the harm. We disagree. An order from the trial court ruling such evidence as inadmissable upon a first objection by appellant would have prevented the numerous other “improper” references of which appellant complains. In order for complaint to be made on appeal that testimony prejudiced the case in such a manner as was calculated to cause and probably did cause the rendition of an improper judgment, it was necessary for objection to have been made at the time of trial so that the trial court could have had an opportunity to cure the matter by appropriate instruction. Dodson v. McCoy, 601 S.W.2d 128 (Tex.Civ.App.-Houston [1st Dist.] 1980, no writ).

Additionally, appellant argued at trial, and argues on appeal, that such references opened the door for appellant to introduce evidence of appellee's wealth. We disagree. Appellant has not cited, nor can we find any cases stating, that the wealth of a devisee of a will is material to proving undue influence on the testatrix. We agree that the wealth of the proponent or contestant may occasionally have some bearing on whether there was an unnatural disposition of the testatrix’s property. But offering such evidence to rebut similar evidence which appellant claims was inadmissible was improper, and the trial court correctly refused such admission. We overrule point of error four.

In point of error number five, appellant argues that the trial court erred in (1) refusing to allow appellant’s expert witness to testify as to the scope of proponent Wheat’s power as trustee and (2) in refusing to lead, on direct examination, an “adverse” witness. Appellant called Charles Dillingham, a tax attorney, as an expert witness to explain the terms of the will and the broad scope of powers given to Wheat as trustee. The trial court refused to allow such testimony. We find no error in the trial court’s ruling. The will itself setting out the trust powers was admitted into evidence, and the provisions therein were reviewed on more than one occasion during the course of the trial. Jack Eckels testified that the trust in question conferred broad powers on Mr. Wheat in administering the trust. He also explained the various ramifications of many of the trust provisions. We believe any further testimony regarding the complexities of the will provisions fell within the discretion of the trial court.

In her same point of error, appellant also contends the trial court erred in refusing to allow her to ask Jack Eckels leading questions on direct examination. We disagree. The allowance of leading questions is a matter resting largely within the discretion of the trial court, and a case will not be reversed in absence of a showing of abuse of that discretion. Coronado v. Employees Nat’l. Ins. Co., 577 S.W.2d 525 (Tex.Civ.App.-El Paso), aff’d, 596 S.W.2d 502 (Tex.1979). Mr. Eckels was not a party to the lawsuit, nor did he give any indication of being a hostile witness. He willingly explained the provisions of the trust instrument and its broad powers without leading questions by appellant. We find appellant’s complaints regarding this issue groundless. Appellant’s fifth -point of error is overruled.

In point of error six, appellant contends the trial court erred in submitting an explanatory instruction on the Dead-man’s Statute, TEX.REV.CIV.STAT.ANN. art. 3716, or alternatively, the court erred in failing to grant appellant’s requested addenda to said instruction. We disagree. Appellant herself tendered to the court a jury instruction on the Dead Man’s Statute in substantially the same form as that prepared by the court. It is well settled that a party cannot complain on appeal when instructions given are substantially the same as those requested by appellant. American Motorists Ins. Co. v. Ellison, 364 S.W.2d 83 (Tex.Civ.App.-Waco 1962, writ ref’d n.r.e.). However, appellant requested the following additional instructions: “You are further instructed that Proponent, John V. Wheat, is free to testify as to all other matters except as to transactions with the decedent, Ruth R. Bettes.” Appellant claims the court’s failure to include the additional instructions, along with its instructions on the Dead Man’s Statute, constituted reversible error. We find no merit in this contention. Appellant cites no case, and we know of none, wherein the court is under an obligation to instruct the jury beyond the scope of TEX.R.CIV.P. 182a. Rule 182a provides that:

Subject to appellate review for an abuse of discretion, the trial court shall in a proper case, where Article 3716 prohibits an interested party or witness from testifying, instruct the jury that such person is not permitted by the law to give evidence relating to any transaction or conversation with, or statement by, a deceased person, unless he is called to testify thereto by the opposite party (Emphasis added.)

Any further instructions would have been surplusage; therefore, the court properly denied appellant’s request. We overrule point of error six.

Appellant alleges, in point of error number seven, that the trial court, when drafting its instructions to the jury, erred in refusing to grant either of appellant’s requested explanations of circumstantial evidence with regard to undue influence. Appellant cites no authority bearing on the alleged faults of the instruction given by the trial court, nor any authority in support of the requested instruction. Thus, the presentation is not sufficient to direct our attention to the error with any degree of certainty. See TEX.R.CIV.P. 418(d). Without proper development of the specific error claimed, an instruction to the jury will not be condemned. Texas Employers’ Ins. Ass’n v. Villasana, 558 S.W.2d 917 (Tex.Civ.App.-Amarillo 1977, no writ).

In point of error eight, appellant contends the trial court erred in severing Wheat’s claims for attorney’s fees from the will contest. In this instance, even if error were committed, an issue we need not decide, it would be a harmless one. The trial court agreed to bifurcate the trial, allowing the jury to first determine the merits of the will contest. Only in the event appellee was unsuccessful in the main case would it have been necessary for the jury to determine the attorney’s fee question. Since appellee was successful in the initial proceeding, there was no necessity for a jury finding on appellee’s attorney’s fees, and appellee sought no such finding. We fail to see how appellant can claim such severance of the attorney’s fees question resulted in the rendition of an improper verdict. TEX.R.CIV.P. 434.

Appellant also complains of the trial court’s severance of her claims against Wheat for an accounting, breach of fiduciary duties, and a surcharge for delay in selling testatrix’s residence. She argues that these matters were an integral part of the will contest and related to undue influence. We find no merit in this contention. TEX.R.CIV.P. 174 authorizes the trial court “in furtherance of convenience or to avoid prejudice” to order a separate trial of any claim or issue. This decision will not be disturbed on appeal absent an abuse of discretion. The trial court stated that any questions regarding a breach of fiduciary duties could be addressed within the context of undue influence and no separate issue need be submitted in the original lawsuit. In addition, it stated that while the issues of surcharge and accounting would “come up under the issues raised here, undue influence and fraud,” there was no need to have the jury rule on these matters in the proceeding in question. We cannot see how such a ruling could have harmed appellant, thus causing the rendition of an improper judgment. We overrule point of error eight.

In point of error nine, appellant maintains she was denied her constitutional right to equal protection of the law because she was forced to try her case before six jurors in statutory probate court, rather than before twelve jurors as permitted in district court. TEX.PROB.CODE ANN. § 5 (Vernon 1980 and Supp.1984). Appellant argues that Section 5 of the Probate Code is unconstitutional because it allows contested probate matters filed in counties without statutory probate courts to be heard by district courts. See TEX.PROB. CODE.ANN. § 5(b). Appellant complains the effect of this legislation is to permit district court trials with 12 jurors in the less populated counties while limiting the right of probate litigants in larger counties to juries composed of only six jurors.

In determining whether the legislative basis for a statute outweighs the denial of the constitutionally protected right of redress, a court must consider both the general purpose of the statute and the extent to which the litigant’s right to redress is affected. Sax v. Votteler, 648 S.W.2d 661 (Tex.1983). Texas has long recognized that legislation limited in operation to only a portion of the state or prescribing different rules for a distinct geographical area is not invalid for denying equal protection where there is a reasonable basis for the distinction and all persons similarly situated in the same place are equally treated. Mouton v. State, 627 S.W.2d 765 (Tex.App.-Houston [1st Dist.] 1981, no writ). We hold Section 5 of the Probate Code is not unconstitutional and appellant was not denied equal protection of the law.

Even if appellant had been denied her constitutional right to equal protection, she has waived the right to complain on appeal. Appellant requested a jury trial by filing her jury fee. After an extensive voir dire, a jury was selected. Not until her motion for new trial did appellant complain of the six person jury limitation. Appellant may not consent to a jury of six before trial and then object to such number only after receiving an adverse verdict. Even a defendant in a criminal case may waive his constitutional right to trial by a six person jury if he waits too long to complain. See Buck v. State, 599 S.W.2d 810 (Tex.Crim.App.1980). Point of error nine is overruled.

In her tenth point, appellant contends the cumulative effect of all the alleged errors by the trial court caused the rendition of an improper judgment. In light of our disposition of the other nine points of error, we find no merit in this contention. We overrule point of error ten.

The judgment of the trial court is affirmed.

      . The Attorney General of Texas is a party to this case by virtue of Art. 4412a, Tex.Rev.Civ. Stat.Ann. (Supp.1981), which, at the time of this lawsuit made him a necessary party to any suit to contest a will containing a charitable bequest.


source: Caselaw Access Project

author: SEARS, Justice.

license: Public Domain

text:
    Calvin Charles DOBY, Appellant, v. The STATE of Texas, Appellee.
    No. C14-83-490CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 4, 1984.
    Terrill L. Plenniken, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

SEARS, Justice.

Appellant was convicted of aggravated robbery under TEX. PENAL CODE ANN. § 29.03 (Vernon 1974), sentenced to twenty years confinement and assessed a fine of $7,500.00.

In his single ground of error, Appellant argues that his right to a hearing outside the presence of the jury, to determine whether his statement was voluntarily given, was violated when the judge admitted his statement without conducting such hearing. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); TEX.CODE CRIM.PROC.ANN. art. 38.22 (Vernon 1974). Further, he relies on our decision in Saenz v. State, 632 S.W.2d 793 (Tex.App.-Houston [14th Dist.] 1982, pet. ref’d), for the proposition that, in such a situation, we must reverse and remand for a new trial.

The State argues that in reaching our decision in Saenz we relied on Lopez v. State, 384 S.W.2d 345 (Tex.Crim.App.1964), a case which impliedly was overruled in Hullum v. State, 415 S.W.2d 192 (Tex.Crim.App.1967), as noted in Kincaid v. State, 500 S.W.2d 487, 489 n. 1 (Tex.Crim.App.1973). It thus concludes that we should merely abate the appeal and order the judge to conduct a Jackson/Denno hearing and submit his findings of fact and conclusions of law to this court.

We agree with Appellant’s assertion that the trial court erred when it failed to conduct a Jackson/Denno hearing. However, we have reexamined our holding in Saenz and now believe that Appellant’s constitutional and statutory rights will be satisfied if we abate the appeal and order the trial judge to conduct a Jackson/Denno hearing and submit his findings and conclusions to this court. Further, we find this action should be taken by the courts of appeals, sua sponte, even if the State does not request it.

During the course of the trial, the State introduced Appellant’s statement into evidence. Appellant did not file a pre-trial Motion to Suppress; rather, he objected to the statement, at the time it was offered, on the basis that it was hearsay and had been coerced. The trial court overruled the objection and the statement was introduced into evidence. In Young v. State, 650 S.W.2d 457, 459 (Tex.App.-Houston [14th Dist.] 1982, no pet.), we held that the mere objection that a statement was coerced sufficiently raised the issue of voluntariness and obliged the judge to conduct a Jackson/Denno hearing whether or not such a hearing was specifically requested by the defendant. We reaffirm that holding today and accordingly find that since the issue of voluntariness was raised, the trial judge erred in not sua sponte conducting a Jackson/Denno hearing.

However, as previously noted, we are abating this appeal in order that such a hearing may now be held. A somewhat lengthy discussion of Jackson v. Denno and its Texas progeny is necessary to an understanding of why we now believe that Appellant’s rights will be adequately protected by such action.

Jackson v. Denno involved a proceeding for a writ of habeas corpus which a United States district court denied. The circuit court affirmed and the Supreme Court granted certiorari. The Court stated that Jackson had a “constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness_” 378 U.S. at 367-77, 84 S.Ct. at 1780-81 (emphasis added). It then concluded that New York criminal procedure, which allowed the jury to determine the voluntariness of the confession, but which instructed the jury to disregard the confession if it found the confession was involuntarily given, did not protect Jackson’s constitutional right to a “fair hearing" on the issue of voluntariness. Id. at 377-79, 84 S.Ct. at 1780-82. The Court then held that Jackson was not automatically entitled to a new trial; rather, he was entitled to a hearing on the voluntariness of his confession. This decision satisfied Jackson’s argument that the voluntariness of his confession “should have been determined in a proceeding separate and apart from the body trying guilt or innocence.” Id. at 394, 84 S.Ct. at 1790. The Court continued by stating that

if at the conclusion of such an evidentia-ry hearing in the state court on the coercion issue, it is determined that Jackson’s confession was voluntarily given, admissible in evidence, and properly to be considered by the jury, we see no constitutional necessity at that point for proceeding with a new trial, for Jackson has already been tried by a jury with the confession placed before it and has been found guilty. True, the jury in the first trial was permitted to deal with the issue of voluntariness and we do not know whether the conviction rested upon the confession; but if it did, there is no constitutional prejudice to Jackson from the New York procedure if the confession is now properly found to be voluntary and therefore admissible. If the jury relied upon it, it was entitled to do so. Of course, if the state court, at an evidentia-ry hearing, redetermines the facts and decides that Jackson’s confession was involuntary, there must be a new trial on guilt or innocence without the confession’s being admitted in evidence.

Id. The Court then observed that New York could grant Jackson a new trial but that such was not constitutionally necessary and “would not comport with the interest of sound judicial administration....” Id. at 395, 84 S.Ct. at 1790. Finally, the Court stated that it was “both practical and desirable that ... a proper determination of voluntariness be made prior to the admission of the confession to the jury which is adjudicating guilt or innocence” and reiterated that the Constitution did not mandate a new trial. Id. This procedure, remanding for a hearing strictly on the issue of voluntariness, also has been employed in direct appeals such as the one at bar. See, e.g., United States v. Renteria, 625 F.2d 1279, 1283 (5th Cir.1980).

The first Texas case to interpret Jackson v. Denno was Lopez v. State, 384 S.W.2d 345 (Tex.Crim.App.1964). Originally, the court of criminal appeals affirmed the conviction. 366 S.W.2d 587 (1963). However, the Supreme Court vacated that decision, 378 U.S. 567, 84 S.Ct. 1924, 12 L.Ed.2d 1038 (1964), and remanded it for proceedings not inconsistent with the Jackson v. Denno opinion. On remand, the court of criminal appeals held that it had no authority to merely abate the appeal in order for a Jackson/Denno hearing to be held and ordered a new trial be conducted. No law was cited to support such lack of authority.

Prior to Ex parte Engle, 418 S.W.2d 671 (Tex.Crim.App.1967), the decision in Lopez was followed in only two other opinions; Dixon v. State, 383 S.W.2d 928 (Tex.Crim.App.1964) (issued one week after Lopez); and, Harris v. State, 384 S.W.2d 349 (Tex.Crim.App.1964) (issued the same day as Lopez). Engle was convicted in 1962 and sought a writ of habeas corpus on the ground that the voluntariness of his confession was not determined in compliance with the requirements of Jackson v. Denno. The court held that although a Jackson/Denno hearing was held, the trial judge did not commit his finding of volun-tariness to writing, as advised by Lopez. However, since Lopez was decided over two years after Engle’s conviction, the court found no error because such a written finding was not mandated at the time Engle was convicted.

After so concluding, the court, in dictum, wrote:

that Jackson v. Denno, supra, did not require that the State must necessarily give [the defendant] a new trial, but held that a hearing in compliance with proper standards to determine if the confession admitted at his trial was in fact voluntary would suffice.

418 S.W.2d at 675. This statement constituted the first overt hint that the court of criminal appeals was reconsidering its holding in Lopez.

The next case in which this issue arose was Coursey v. State, 457 S.W.2d 565 (Tex.Crim.App.1970). Coursey was convicted in 1964 and was granted an out-of-time appeal in 1969. See Coursey v. Beto, 301 F.Supp. 740 (N.D.Tex.1969). On appeal, Coursey argued that he had not received a Jackson/Denno hearing and that this constituted reversible error. The court held that Coursey was not entitled to the hearing because he had not raised the issue of voluntariness at trial. It further stated in dictum:

Even if Jackson v. Denno were applicable, it would not call necessarily for a new trial but only a remand to the trial court for a hearing in compliance with its standards to determine if the confession admitted was in fact voluntary. Ex parte Engle, Tex.Cr.App., 418 S.W.2d 671.

457 S.W.2d at 569. The court then stated that evidence adduced at an intervening habeas corpus hearing established that the confession was voluntary and that the Jackson v. Denno requirements were met by such a procedure. Id.

This issue was next addressed in Harris v. State, 465 S.W.2d 175 (Tex.Crim.App.1971), the first case of this type to which TEX.CODE CRIM.PROC.ANN. art. 38.22 (Vernon 1979) (effective 1965), applied. The court of criminal appeals held that the trial court erred in failing to hold a Jackson/Denno hearing since the issue of vol-untariness was raised. Id. at 177. The State, however, did not request that the appeal be abated. The court next followed the general holding in a similar situation in Morales v. State, 466 S.W.2d 293, 301 (Tex.Crim.App.1971) (on Appellant’s Motion for Rehearing). Article 38.22 also applied to this case. Again, the State did not ask that the appeal be abated.

Figueroa v. State, 473 S.W.2d 202 (Tex.Crim.App.1971), and Davis v. State, 499 S.W.2d 303 (Tex.Crim.App.1973), both of which also fell under art. 38.22, also provided the court with its next opportunities to review the issue. The court reversed both convictions, and remanded for new trials because in each case the trial judge had failed to enter his findings and conclusions on the voluntariness issue in compliance with constitutional and statutory requirements. Id. at 305; 473 S.W.2d at 205.

The abatement issue was not raised in Figueroa but was addressed in Davis. The majority in Davis refused to abate the appeal in order that findings be made, 499 S.W.2d at 306, although the dissenting judge urged the court to do so. Id. The majority did consider a supplemental transcript which contained the necessary findings and conclusions in its opinion on the State’s Motion for Rehearing, though, and held that the Jackson/Denno requirements had been met. Id. at 307.

Kincaid v. State, 500 S.W.2d 487 (Tex.Crim.App.1973), followed. It pointed out that a previous decision, Hullum v. State, 415 S.W.2d 192 (Tex.Crim.App.1967) (on State’s Motion for Rehearing) “in effect sub silentio overruled Lopez ...,” which ruled that the court had no authority to abate the appeal merely for a Jackson/Den-no hearing. 500 S.W.2d at 489 n. 1. Hullum was decided approximately two years after Lopez and approximately nine months prior to Engle. This fact invites speculation as to whether the court would have abated the appeals for Jackson/Denno hearings in the Harris, 465 S.W.2d 175, and Morales cases, and for findings in the Figueroa case had the State so asked. The supplemental transcript filed in the Davis case, which apparently contained findings and conclusions which previously had been made but which were not included in the original transcript, rendered that issue in Davis moot.

King v. State, 502 S.W.2d 795 (Tex.Crim.App.1973), involved a delayed appeal, granted after a 1973 habeas corpus hearing, from a 1958 conviction. Article 38.22 did not apply because the court ordered the appeal to be tried under the criminal procedure in effect in 1958. On appeal, the court held that although it was questionable whether King raised the issue of volun-tariness, the Jackson v. Denno requisites had been met. The court so held because after the new appeal had been granted, a Jackson/Denno hearing was held by the trial court, which found that the confession was voluntary. King argued that the trial court did not have the authority to conduct such a hearing while his appeal was pending. The court of criminal appeals disagreed and stated that if a party had requested a Jackson/Denno hearing at that time, i.e. during the pendency of the appeal, that it “could have and quite likely would have granted the request .... ” Id. at 798.

A similar scenario is found in Davis v. State, 505 S.W.2d 800 (Tex.Crim.App.1974). This Davis appeal also arose as a result of an order entered after a 1972 habeas corpus hearing. Davis had been convicted in 1962, before art. 38.22 became effective. Here, the trial court conducted a Jackson/Denno hearing at his habeas corpus hearing and concluded the confession had been given voluntarily. In light of that fact, the court of criminal appeals deemed “it unnecessary to order an additional hearing” on the issue and overruled the ground of error, relying on King, Kincaid, Engle, and Hullum, 505 S.W.2d at 802.

Moore v. State, 505 S.W.2d 887 (Tex.Crim.App.1974), seemed to abruptly reverse the court’s trend on this issue. Moore involved a direct appeal from a conviction which was at least partially based on an oral confession. The voluntariness of that confession was challenged but the trial court did not conduct a Jackson/Den-no hearing or make any findings or conclusions as to the voluntariness of the confession. Relying on art. 38.22; Harris, 465 S.W.2d 175; and Davis, 499 S.W.2d 303; the court reversed and remanded for a new trial. 505 S.W.2d at 889. The issue of whether the appeal should have been abated solely for a voluntariness hearing was neither raised by the State nor discussed by the court, again leaving open the question of what the court would do if asked for that relief in a direct appeal.

The next case dealing with a variation of this issue was Hester v. State, 535 S.W.2d 354 (Tex.Crim.App.1976). In Hester, the trial judge reduced to writing his conclusion that the defendant’s confession was voluntary but failed to enumerate his findings supporting that conclusion. The court held that his failure violated both the requirements of Jackson v. Denno and art. 38.22. Consequently, the court of criminal appeals abated the appeal and ordered the trial judge to correct that deficiency. Id. at 356. This holding was amplified two weeks later in McKittrick v. State, 535 S.W.2d 873 (Tex.Crim.App.1976). That court held that whether the trial judge made insufficient findings to support a conclusion that a confession was voluntary, as in Hester, or made so findings at all, as in Figueroa, Davis, 499 S.W.2d 303; and in McKittrick, the appeal would be abated so that such findings and conclusions could be made. 535 S.W.2d at 876. That court held at that point, the requisites of Jackson v. Denno and art. 38.22 would be met. Thus, the court of criminal appeals impliedly overruled those portions of their Figueroa and Davis opinions.

So far as we can determine, the court of criminal appeals did not address a similar issue until its opinion in Bass v. State, 626 S.W.2d 769 (Tex.Crim.App.1982). This opinion was written as a result of an appeal of a retrial. In Bass’s first trial, the trial judge conducted a Jackson/Denno hearing and concluded that his confession was voluntarily given. The judge presiding over the second trial relied on the findings and conclusions of voluntariness which were made by the judge during the first trial and refused to conduct an additional hearing. The court of criminal appeals held that since a hearing had been held at some stage of the proceeding, that the second trial judge had complied with the requisites of Jackson v. Denno. Id. at 774. However, the court held that art. 38.22 made it necessary to abate the appeal so that the transcript could be supplemented with the findings and conclusion of the first trial judge. Id. at 772.

The Bass court thoroughly discussed its holding that so long as a hearing on volun-tariness is held at some stage of the proceedings, the requirements of Jackson v. Denno are met. It pointed out that the Supreme Court did not specify who must resolve the voluntariness issue, id. at 773, and did not hold that a new trial must automatically be granted in the event a voluntariness hearing had not been given. The court continued by citing the language in Jackson v. Denno which held that if at a subsequent hearing the confession is found to be voluntary, the defendant has suffered no constitutional prejudice and is not constitutionally entitled to a new trial. Id. at 774. Indeed, Jackson v. Denno itself was remanded solely for a voluntariness hearing.

The court then noted that three Texas cases, Coursey, Davis, 505 S.W.2d 800, and King, involved voluntariness hearings which occurred after the trial and which provided the avenue for the court of criminal appeals to determine that the Jackson v. Denno mandates had been met. Id. at 773-74.

The court’s final point in Bass is most crucial to our decision. The court wrote, in dictum, that if the supplemental transcript revealed

that the hearing was inadequate or that [the judge’s] findings [were] not supported ... it will be necessary to remand this case for a new hearing to determine the voluntariness of the appellant’s confession.

Id. at 775 (emphasis added).

Since the Bass opinion was rendered, the issue has arisen in three cases considered by courts of appeals. This court decided the first such case, Saenz v. State, 632 S.W.2d 793 (Tex.App.-Houston [14th Dist.] 1982, pet. ref’d), approximately two months after Bass was handed down. We held that the trial judge erred by not holding a Jackson/Denno hearing since Saenz raised the issue of voluntariness of his confession therefore the requirements of Jackson v. Denno and art. 38.22 had been violated. Further, we refused the State’s request to “abate the appeal and allow the trial judge to file specific findings of fact ....” because no voluntariness hearing had been held in the first place. Id. at 798. Finally, relying on Lopez, we held that we could not abate the appeal solely for a Jackson/Denno hearing. Id. at 799. See also Williams v. State, 644 S.W.2d 891 (Tex.App.-Fort Worth 1982, no pet.). The issue arose again in Young v. State, 650 S.W.2d 457 (Tex.App.-Houston [14th Dist.] 1982, no pet.). We followed our holding in Saenz by reversing and remanding for a new trial. In Young, however, the State did not ask that the appeal be abated. These are the only three cases which have cited Lopez, since the Kincaid decision was rendered, for the proposition that failure to hold a Jackson/Denno hearing after the voluntariness issue has been raised necessarily leads to a new trial. Kincaid noted that Lopez in effect had been sub silentio overruled.

Finally, in McNeill v. State, 650 S.W.2d 405 (Tex.Crim.App.1983) (en banc), the defendant requested, but was refused, a Jackson/Denno hearing. The State did not request that the appeal be abated. The court reversed and remanded for new trial without discussion and without citing any authority.

We recognize that the court of criminal appeals has never abated an appeal solely for a voluntariness hearing. However, our understanding of the previously discussed cases leads us to the conclusion that in the instant case, Doby’s constitutional right to a hearing on the voluntariness of his confession will be protected if we abate this appeal for such a hearing and order the judge who conducts the hearing to file specific findings of fact and conclusions of law. If the judge does conclude the confession was voluntary, and we find that the evidence adduced at the hearing supports the judge’s findings and conclusions, we will affirm the conviction. If the judge determines that the confession was not voluntary, we will reverse the conviction and remand for a new trial. See Jackson v. Denno, 378 U.S. at 394, 84 S.Ct. at 1790. We can find no support in Texas jurisprudence for the statement in Lopez that we do not have the authority to take such action.

We further find that such action will meet the requisites of art. 38.22, § 6. As pointed out in Moore, 505 S.W.2d at 888, that section of art. 38.22 “embodies the constitutional requirements articulated in Jackson v. Denno .... ” Neither Jackson v. Denno nor art. 38.22, § 6 declares that a voluntariness hearing must be held at any particular time. Rather, Jackson v. Denno mandates that the hearing be held at some stage of the proceedings. This holding was echoed in Bass, supra, the only case the court of criminal appeals has reviewed in which a Jackson/Denno hearing had occurred at some point and which fell under art. 38.22, § 6.

While we are abating this appeal for a voluntariness determination, we do agree with the remark the Supreme Court made in Jackson v. Denno that “it is both practical and desirable” for such a determination to be made before the jury views the confession. 384 U.S. at 395, 84 S.Ct. at 1791.

This appeal is abated.

      . § 6 requires the court to "make an independent finding in the absence of the jury as to whether the statement was made under voluntary conditions."

      . n. 1 — The Texas Rules of Form explain on Page 13 that “petition history notations should not be considered indicative of the court's approval or disapproval of the lower court's decision."


author: DRAUGHN, Justice.

text:
    Lorenzo HILL, Appellant, v. The STATE of Texas, Appellee.
    No. 14-83-784-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 4, 1984.
    Rehearing Denied Nov. 1, 1984.
    Clinton E. Wells, Jr., Houston, for appellant.
    Calvin A. Hartmann, Houston, for appel-lee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

DRAUGHN, Justice.

Lorenzo Hill appeals a jury conviction of aggravated robbery. In two grounds of error, he alleges that the trial court erred in denying his motion to dismiss for violation of the Speedy Trial Act and in denying his motion to suppress an in-court identification as tainted by an impermissibly suggestive one-on-one show-up in front of the complainant shortly after the arrest. We overrule these two grounds of error and affirm the judgment of the trial court.

This case arose out of the following facts. Billy Mack Samford, a security guard on duty, and his brother-in-law J. Frank Wesson, a civilian employee of the Houston Police Department, drove into a bank parking lot shortly after midnight to deposit an envelope of cash receipts in the bank's night deposit drawer. Samford, the driver, parked the car and walked to the bank while Wesson remained seated in the car. As Samford reached the deposit drawer, a masked assailant approached with a .38 Smith & Wesson pistol. Samford immediately placed the receipts in the drawer, turned and informed the assailant that he no longer possessed the money. The assailant motioned Samford toward the parked car, and as Samford turned, the assailant fled. During this incident Wesson remained on the passenger side of the car approximately thirty (30) feet away and was neither approached nor threatened by the assailant.

Samford and Wesson immediately contacted the Houston Police Department and gave a detailed description of the assailant, including height, weight, clothes, type of revolver, color of skin, and color of eyes. Within approximately one and a half hours, the police located appellant and produced him for a one-on-one show-up before Sam-ford and Wesson at which Samford positively identified appellant as the gunman at the bank. Samford also made a positive identification at trial.

After appellant’s arrest on May 3, 1983, the Harris County Grand Jury returned an indictment but listed the victim of the robbery as J. Frank Wesson. The appellant signed a waiver of his right to a speedy trial in this cause and remained in custody in the Harris County jail awaiting trial set for September 6, 1983. On September 6, the State asked that the trial be reset for October 10,1983, so that appellant could be reindicted with the correct name of the victim as Billy Mack Samford. On September 8, 1983, appellant was reindicted in a new cause which correctly listed the victim as Samford. On September 27, 1983, the State moved to dismiss the previous indictment.

In his first ground of error, appellant asserts that the trial court erred in denying his motion to dismiss the second indictment for violation of the Speedy Trial Act, TEX. CODE CRIM.PROC.ANN. art. 32A.02 (Vernon Supp.1984). Appellant contends that the two indictments (one listing Wesson and the other listing Samford as victim) apply to two entirely different cases arising out of the same transaction; therefore, the waiver of the right to a speedy trial filed with the earlier indictment does not apply to the later indictment obtained 128 days after appellant’s arrest. See Paris v. State, 668 S.W.2d 411, 412 (Tex.Crim.App.1984); Rosebury v. State, 659 S.W.2d 655, 657 (Tex.Crim.App.1983). The State replies that the indictments refer to the exact same case, but the first indictment was erroneously pleaded and later corrected in the second indictment to include the proper name of the victim.

In Rosebury, appellant was indicted for possession of “tetrahydrocannabinol other than marijuana,” and he signed a waiver of speedy trial rights. Subsequently, the State discovered the controlled substance to be marijuana and reindicted appellant in a new cause listing the correct name of the drug. The Court of Criminal Appeals upheld the trial court’s denial of appellant’s motion to dismiss for violation of the Speedy Trial Act, saying that under the facts there was only one case. The court viewed the situation as a single offense that was at first erroneously pleaded, and it noted that if appellant had possessed both drugs a different issue would arise. Id. The court determined that the waiver of a speedy trial in the first cause also applied to the subsequent cause. Paris follows Rosebury on this issue.

The crucial point of contention in the instant case is whether the circumstances relate to the same or different cases. We are of the opinion that the facts describe only one case. If the gunman had robbed both Samford and Wesson, appellant’s argument that the indictments applied to separate cases would be more credible. Wesson was never approached nor threatened. The encounter with the assailant encompassed only one victim; therefore, we view the facts as a single offense that was at first erroneously pleaded. We follow the Rosebury and Paris analysis and hold that appellant’s waiver of a speedy trial in the first indictment extended to the second indictment. Appellant’s first ground of error is overruled.

In his second ground of error, appellant asserts that the trial court erred in denying his motion to suppress the in-court identification as tainted by an impermissibly suggestive one-on-one show-up in front of Sam-ford and Wesson shortly after the robbery. Samford and Wesson provided the police with a detailed description immediately following the holdup. They testified in court that they were certain of their identification of appellant at the time of the arrest. Appellant relies upon the brevity of the robbery and minor discrepancies in the witnesses’ testimony as the basis for asserting that the one-on-one show-up was impermis-sibly suggestive.

The criteria for assessing the suggestiveness of these confrontations are set out in Garza v. State, 633 S.W.2d 508, 513 (Tex.Crim.App.1982). These criteria include (1) opportunity to view, (2) degree of attention, (3) accuracy of description, (4) witness’s level of certainty, and (5) the time between the offense and the show-up. Any discrepancy or weakness in the testimony goes to the weight and credibility of the evidence, factors exclusively within the domain of the trier of fact. Examination of the record in light of the above criteria reveals that the one-on-one show-up was not impermissibly suggestive. Therefore, appellant’s second point of error is also overruled.

The judgment of the trial court is affirmed.


author: GEORGE E. MILLER, Justice (Retired).

text:
    Ronald Dee STEENS a/k/a Ronnie Fisk, Appellant, v. The STATE of Texas, Appellee.
    No. D14-83-803-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 4, 1984.

      Stanley Schneider, Houston, for appellant.
    Calvin Hartmann, Asst. Dist. Atty., Houston, for appellee.
    Before BERT H. TUNKS and TOM F. COLEMAN, C.JJ. (Retired), and GEORGE E. MILLER, J. (Retired).
   OPINION

GEORGE E. MILLER, Justice (Retired).

This is an appeal from a conviction of aggravated robbery pursuant to TEX. PENAL CODE ANN. § 29.03 (Vernon 1974.) Appellant entered a plea of not guilty. The jury found him guilty and the trial court assessed punishment at thirty years confinement in the Texas Department of Corrections. Appellant raises two grounds of error challenging the validity of his arrest and lack of a presentence investigation. We affirm.

In his first ground of error, appellant contends his arrest warrant was invalid because it was based on an insufficient affidavit. He argues further his photo used in a photographic spread was a direct result of the unlawful arrest. He further complains the photographic spread and the subsequent testimony concerning the photo identification of appellant should not have been admitted into evidence.

No pretrial motion raised the issue of an invalid arrest. No motion in the record complains of the arrest. A pro se application for writ of habeas corpus contested the sufficiency of the affidavit but the record nowhere indicates the application was brought to the court’s attention and ruled on. The arrest warrant and underlying affidavit are not in the record. There was no objection to any evidence urging it was tainted by an illegal arrest. Nothing is presented for review. Assertions in a brief, unsupported by the record, present nothing for review. Tooke v. State, 642 S.W.2d 514, 518 (Tex.App.-Houston [14th Dist.] 1982, no pet.) see Haynes v. State, 468 S.W.2d 375, 377 (Tex.Crim.App.1971) cert. denied, 405 U.S. 956, 92 S.Ct. 1180, 31 L.Ed.2d 233 (1972).

Even if appellant had a meritorious argument against the arrest warrant, the record shows the photographic indentification procedure was not the fruit of appellant’s arrest. The photo of appellant was an old one in Houston police files.

The record further indicates the identifying witness’ observation during the robbery provides a basis for in-court identification wholly independent of her examination of the photo spread. Turner v. State, 614 S.W.2d 144, 146 (Tex.Crim.App.1981). Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends the trial court erred in not ordering a presentence investigation report as required by TEX.CODE CRIM.PROC. ANN. art. 42.12 § 4 (Vernon Supp.1984).

Under that article the judge need not order a report if the “Court finds that there is sufficient information in the record to permit the meaningful exercise of sentencing discretion and the Court explains this finding on the record.”

After appellant’s attorney gave notice of appeal, the trial judge made the following statement for the record.

The Court finds that there is sufficient information in the record to permit the meaningful exercise of sentencing discretion and the Court explains this finding on the record and that is what I am doing now. I am not ordering a presentence investigation in this matter.

There was no objection.

Appellant asserts the court’s statement did not amount to an explanation. He further argues the evidence was clearly not sufficient to allow a meaningful exercise of sentencing discretion as required by the statute. No cases are cited in support of the argument. Indeed, this appears to be a matter of first impression.

The term “explain” should not be construed as requiring the judge to state for the record all the factors which enter into his consideration. Section 4, furthermore, refers to the court’s sentencing “discretion,” that is, under Article 42.12, the court’s decision whether to grant or deny probation. Appellant was convicted of aggravated robbery. The trial court, therefore, had no sentencing “discretion.” Id. at § 3(a)(1)(D). A presenténce investigation, thus, would have served no purpose. Appellant’s second ground of error is overruled.

The conviction is affirmed.


author: ELLIS, Justice.

text:
    Thomas Lee GAMBLE, Appellant, v. The STATE of Texas, Appellee.
    No. C14-83-858-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 4, 1984.

      Brian Wice, Houston, for appellant.
    Calvin Hartmann, Asst. Dist. Atty., Houston, for appellee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ELLIS, Justice.

Appellant, Thomas Lee Gamble, appeals from a judgment of conviction for the felony offense of burglary of a habitation. In a joint trial, with co-defendant Gary Wayne Fisher, the jury found appellant guilty and assessed punishment at fifty years in the Texas Department of Corrections. Appellant raises five grounds of error. We affirm.

Appellant’s first ground of error asserts that the trial court erred in making an affirmative finding that a deadly weapon was used during the commission of the offense. His second ground of error claims that the trial court erred in admitting, over timely objection, State’s Exhibit 5, evidencing appellant’s prior deferred adjudication and its subsequent adjudication of guilt. Appellant’s third and fourth grounds of error assert that the trial court erred in admitting, over timely objection, State’s Exhibit 6 and 7, evidencing appellant’s prior misdemeanor convictions which had been reduced from a felony. Appellant’s fifth ground of error alleges that the trial court did not properly charge the jury on the law of parties. We overrule all of appellant’s grounds of error and affirm the judgment of the trial court.

The events leading to appellant’s arrest began when Shirley Irving, around midnight on April 29, 1983, observed an automobile stop across the street from her apartment and saw two men get out. She testified that she recognized the two men as appellant, Thomas Lee Gamble, whom she had known for twelve years, and co-defendant, Gary Wayne Fisher, whom she had known for thirteen years. Irving testified that about ten minutes after she saw appellant and co-defendant Fisher arrive, she heard a noise “like someone was kicking in a door.” Irving called the police to report a burglary in progress. She testified that she saw appellant carrying clothes and shoes to the car which he came in and then returned to the apartment building across from Irving’s apartment. The police arrived and Irving said she heard what sounded like a gunshot. Irving later identified both appellant and co-defendant when police brought them to the scene for identification.

Wally Posey, the complainant, testified that he awakened around midnight on April 29, 1983, to find two people in his bedroom. He recognized both co-defendant Fisher and appellant, having previously known them. Appellant placed a pistol to Posey’s head and demanded money. Appellant told Fisher to hit Posey if he moved. Appellant put a pillow over Posey’s head. Posey testified that appellant found and took his wallet and money. Posey said that he heard the noise of a door being kicked in and, as he turned his head, Fisher hit him across the hand with a piece of metal. Posey testified that the two men took clothing and shoes from his apartment. Both appellant and co-defendant Fisher rushed from Posey’s apartment when the police arrived. On Posey’s way out to see what was happening outside, he noticed his television and AM/FM radio at the bottom of the staircase. Outside, Posey found the police, who had co-defendant Fisher in custody. Posey identified Fisher and told them that appellant could be found at the Sampson Motel. Posey was taken to the motel to identify appellant. Posey also claimed clothes and shoes which were found in the car that Irving saw appellant and Fisher get out of.

One of the arresting officers testified that as he got out of his car, he saw someone look out of the window of Posey’s apartment. Moments later, he saw two men run out of the building. The officer chased them and apprehended co-defendant Fisher. The officer testified that Posey identified Fisher and told them appellant could be found at the Sampson Motel. An officer searched the car outside Posey’s apartment and found personal articles which were claimed by Posey. The officers proceeded to the Sampson Motel and talked to Denise Carol, later identified as appellant’s common law wife. She told the officers that appellant was not home, but he would return in a few hours. The police returned to the Sampson Motel and arrested appellant.

Appellant, who denied any part in the burglary, testified on his own behalf. He testified that he had been with Carol that evening in the Sampson Motel. He said he left the motel for another motel, the El Orbit Motel, where he spoke with the manager. From there, he went to a bootleg house and then home. On cross-examination, appellant admitted he had been convicted of three misdemeanor thefts. The manager of the El Orbit Motel testified that he spoke to appellant that evening and appellant did not appear to be sweating or excited. Co-defendant Fisher did not testify. The jury found both appellant and co-defendant Fisher guilty.

At the punishment hearing, the State, over appellant’s objection, introduced three certified copies of judgments. The first one, State’s Exhibit 5, showed that appellant on April 28, 1981, received deferred adjudication, probated for three years, for the offense of theft. The exhibit also showed that on February 5,1982, a hearing to adjudicate was held and the court, after finding that he violated the’terms of his probation, adjudicated his guilt and found him guilty, assessing his punishment at one year in the Harris County jail. Copies of judgments, State’s Exhibits 6 and 7, each showed that after a motion by the State, the second paragraph of the charging instrument was reduced to a class A misdemeanor and appellant received one year in the Harris County Jail for the offense of theft.

During the punishment hearing appellant testified on his own behalf. He stated that he had never been convicted of a felony. Though appellant asked to be placed on probation, the jury assessed his punishment at fifty years confinement in the Texas Department of Corrections.

Ground of error one claims that the trial court erred in making an affirmative finding that a deadly weapon was used during the commission of this offense. The jury found appellant guilty as charged in the indictment. The indictment alleged only the offense of burglary of a habitation. At the conclusion of the punishment hearing the trial court made an affirmative finding that appellant used a deadly weapon during the commission of this offense. The appropriate trier of fact in this case was the jury, not the trial court. An affirmative finding as to whether a firearm was used during the commission of an offense must be made by the jury when the jury is the trier of fact. Ex parte Thomas, 638 S.W.2d 905 (Tex.Crim.App.1982); Barecky v. State, 639 S.W.2d 943 (Tex.Crim.App.1982). The court’s finding was entered on the docket sheet. The finding, however, does not appear in the judgment. Where the improper finding appears in the judgment, the proper remedy is reformation of the judgment. Barecky, 639 S.W.2d 943. This court has the power to reform any judgment as the law and the nature of the case may require. Tex.Code Crim. Proc.Ann. art. 44.24(b) (Vernon Supp.1984). However, in the case at bar, no reformation is required since the improper finding does not appear in the judgment. We overrule ground of error one.

The second ground of error asserts that the trial court erred in admitting, over timely objection, evidence of appellant’s pri- or deferred adjudication and its subsequent adjudication. During the punishment hearing, the State attempted to introduce evidence showing that appellant received deferred adjudication with three years probation and that subsequently guilt was adjudicated. Appellant objected to the admission of the exhibit on the grounds that the judgment of deferred adjudication was not a final conviction. The trial court ordered the State to delete any references as to how or why the court proceeded to adjudication and the reason probation was revoked. The trial court did allow the State to introduce evidence showing appellant received deferred adjudication with three years probation, that the same was adjudicated, and that punishment was assessed at one year in the Harris County Jail. Appellant contends that despite the deletion of the reason for the adjudication the jury was still able to learn that he had received the deferred adjudication and that it was adjudicated. Additionally, appellant contends that during the State’s cross-examination of appellant and the State’s final argument, the prosecutor brought before the jury the fact that appellant’s probation had been revoked and the reasons for the revocation.

We find that any error which might have existed has been cured. The defense counsel during examination of appellant asked:

Q. Your probation got revoked for failure to report; is that correct?
A. Yes, sir.

The admission of improper evidence does not constitute reversible error if the same facts are proved by other, proper testimony, as where the defendant voluntarily gives testimony substantially the same as that improperly admitted over objection. Craver v. State, 628 S.W.2d 155 (Tex.App.-Houston [14th Dist.] 1982, pet. ref’d), citing Meadowes v. State, 368 S.W.2d 203 (Tex.Crim.App.1963); McCain v. State, 363 S.W.2d 257 (Tex.Crim.App.1963). We find no reversible error exists with regard to the State’s cross-examination of appellant concerning the reasons for his revocation of probation because appellant opened the door to this cross-examination when he indicated by his direct testimony that his probation was revoked only for his failure to report to his probation officer as directed by the court.

In grounds of error three and four, appellant states that the trial court erred in admitting two exhibits, each evidencing a prior misdemeanor conviction which had been reduced from a felony. Appellant alleges that the exhibits, copies of judgments, are inadmissible under Tex.Code Crim.Proc. art. 37.07. The portion of each judgment which mentions that appellant had been charged with a felony was whited out. Appellant contends that the remaining material was enough to violate art. 37.07. As they were introduced at trial, the judgments read: “upon motion of the state, the second paragraph was reduced to a misdemeanor, the defendant on trial for theft, a class A misdemeanor.” A following paragraph starts out, “The defendant having been indicted in the above entitled and numbered cause for the felony offense indicated above ...” Appellant points out that the prosecutor informed the jury several times that the misdemeanor was originally filed as a felony. Art. 37.07, § 3(a) does not permit the State to show the details of an offense of a prior conviction at the punishment hearing. Johnson v. State, 650 S.W.2d 784 (Tex.Crim.App.1983), citing Lege v. State, 501 S.W.2d 880 (Tex.Crim.App.1973); Mullins v. State, 492 S.W.2d 277 (Tex.Crim.App.1973); Cain v. State, 468 S.W.2d 856 (Tex.Crim.App.1971). In Davis v. State, 642 S.W.2d 510 (Tex.Crim.App.1982) the appellant complained that the judgment of a conviction that was introduced during the punishment stage of the trial contained language that should have been deleted. Specifically, it showed that appellant was indicted for a felony offense, but the offense was reduced to a class A misdemeanor. In Davis the court said the language should have been deleted. However, the Davis court said the failure to delete was not reversible error because the court could not conclude that the error was not harmless error beyond a reasonable doubt. The court in Davis held that, “In order for this type error to rise to reversible error, it must be established that there was a possibility the error affected either the guilt or punishment stages of the trial,” citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Clark v. State, 627 S.W.2d 693 (Tex.Crim.App.1982); Clemons v. State, 605 S.W.2d 567 (Tex.Crim.App.1980); Jordan v. State, 576 S.W.2d 825 (Tex.Crim.App.1978); Montoya v. State, 625 S.W.2d 25 (Tex.App.-San Antonio 1981, no pet.). In the instant case appellant has failed to demonstrate the harmful effect of the error beyond a reasonable doubt. Merely stating that the jury completed deliberations within three hours, rejected his probation application, and assessed a penalty in excess of the statutory minimum does not demonstrate the harm that would necessitate a reversal. We find that any error in admitting the judgments in evidence was harmless error.

In ground of error five, appellant claims that the trial court failed to properly charge the jury on the law of parties despite defense counsel’s timely objection. The relevant part of the charge allowed the jury to convict appellant if they believed beyond a reasonable doubt that appellant "... either acting alone or as party with Gary Wayne Fisher ... committed the theft.” Appellant contends that there was no evidence to support the submission of the case upon the theory that appellant acted alone. We do not agree. There is more than enough evidence in the record to conclude that appellant himself performed all the acts needed to constitute burglary. Enough evidence also supports a finding that appellant ordered and assisted co-defendant Fisher. The appellant correctly could have been found guilty by the jury on either theory, under the evidence of this case.

According to Tex.Penal Code Ann. § 7.01(a):

A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.

Tex.Penal Code Ann. § 7.02(a)(2) (Vernon 1974) reads:

(a) A person is criminally responsible for an offense committed by the conduct of another if:
* sN * * * ⅜!
(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense

In this case appellant could have been guilty by reason of his own conduct, and guilty by reason of the conduct of co-defendant Fisher, because of appellant’s direction, aid, and encouragement to Fisher. Clearly, there was no error in the charge.

Accordingly, we affirm the judgment of the trial court.