author: STEPHENS, Justice. DEVANY, Justice,

text:
    George Arnold GIESEN, Appellant, v. The STATE of Texas, Appellee.
    No. 05-84-00444-CR.
    Court of Appeals of Texas, Dallas.
    Feb. 19, 1985.

      Kerry Fitzgerald, Dallas, for appellant.
    Celia V. Barr, Asst. Dist. Atty., Dallas, for appellee.
    Before STEPHENS, VANCE and DEVA-NY, JJ.
   STEPHENS, Justice.

George Arnold Giesen, convicted by a jury of burglary of a habitation, and sentenced to forty years imprisonment, appeals. In eight grounds of error appellant contends: that the prosecutor committed reversible error by eliciting testimony regarding polygraph tests; that the prosecutor made impermissible comments about appellant during closing argument; that the prosecutor was allowed to argue outside the record; and that the prosecutor impermissibly attacked appellant through appellant’s trial counsel. We disagree with each contention and, accordingly, affirm.

In his first ground of error, appellant contends the prosecutor erroneously elicited testimony regarding the administering of a polygraph test to the complaining witness. We disagree.

The record reflects the following testimony:

(By prosecutor) Q. When a person who comes to you as a rape victim, comes to you after the fact, that being a couple of days later, do you usually follow a certain procedure when you are investigating that particular type of rape victim’s case?
A. I view it with somewhat more skepticism that I would others that would be reported instantly.
Q. If you have a skepticism do you have that rape victim do anything, that is additionally in your procedure?
A. In some instances I ask them if they would take a polygraph test.
Mr. Green: Your Honor, object to anything about a polygraph test.
The Court: Sustained.
Mr. Green: Not admissible. Instruct the jury to disregard it.
The Court: Jury is so instructed.
Mr. Green: At this time, Your Honor, I move the Court for a mistrial for mentioning the word polygraph.
The Court: Overruled.
(By prosecutor): Q. After you interviewed this witness, that is (K_ W_), did you have any doubt about what she was telling you?
A. No sir I didn’t (RII-233, 234).

The witness did not testify that he felt that a polygraph test was warranted in this instance; that a polygraph test was in fact administered to the complainant; what the results of the test were, assuming one was conducted; or that he was basing his opinion of the complainant’s veracity upon such a test. Although the results of polygraph tests are inadmissible in all cases, Fernandez v. State, 564 S.W.2d 771 (Tex.Crim.App.1978), in light of the nature of the offending statement in this case and the court’s prompt instruction to disregard, no reversible error is shown. Reed v. State, 522 S.W.2d 466 (Tex.Crim.App.1975). Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends that P_W_’s testimony regarding what the complainant told her the day of the offense was prejudicial and inadmissible hearsay. We disagree.

The record reflects the following:
(By prosecutor) Q. Do you recall receiving a telephone call from Ms. (W_) on Saturday, September 17,1983?
A. Yes, sir.
Q. What did she tell you?
A. Well, she told me that she had been raped the night before—
MR. GREEN: Your Honor, I’m going to object to hearsay.
THE COURT: Sustained.
MR. GREEN: Will you instruct the Jury to disregard it, please?
THE COURT: Jury is so instructed.

Although hearsay is generally inadmissible, it is well settled that statements constituting a rape victim’s complaint, her “outcry”, are admissible in the State’s case in chief as direct evidence of that complaint; this evidentiary rule applies without regard to the spontaneity of those statements. King v. State, 631 S.W.2d 486 (Tex.Crim.App. 1982). We conclude the testimony was admissible and the trial court erred in sustaining appellant’s objection. Since the error benefitted appellant, appellant’s complaint is without merit. Appellant’s second ground of error is overruled.

In his next two grounds of error, appellant complains the prosecutor deprived him of due process and a fair trial by making the following statements during closing argument:

He said the whole thing is like he is a gladiator and he is sentenced by Caleta (phonetic), well he may be in an arena, but this guy is not a gladiator, he is one of the animals, that’s what he is.
# * * * * *
You know, it’s a reasonable and logical deduction from his own testimony and his version of what the story is is totally preposterous, unbelievable, period. Consent, no. Look at him, look at this thing as he sits here. Do you think—

In both instances appellant’s counsel’s objections were sustained and the jury was instructed to disregard the prosecutor’s statements, but appellant’s motions for a mistrial were denied. We conclude that the prosecutor’s statements were not so extreme or manifestly improper as to deny appellant a fair trial and any error was cured by the court’s instruction to disregard. Stringer v. State, 632 S.W.2d 340 (Tex.Crim.App.1982); Todd v. State, 598 S.W.2d 286 (Tex.Crim.App.1980). Appellant’s grounds of error three and four are overruled.

In his fifth ground of error, appellant contends the court erred in allowing the prosecutor to attack appellant by arguing outside the record. We disagree. The record reflects that during the State’s closing argument the prosecutor stated:

He will do anything he will violate any oath that he takes on the witness stand. He will violate—

Defense counsel’s objection was overruled. Appellant testified under oath that the complainant had invited him into her apartment and had engaged in sexual intercourse voluntarily. In light of the other evidence presented, it was a reasonable deduction from the evidence that appellant’s testimony was untrue, and the prosecutor’s comment was, therefore, proper. Todd v. State, 598 S.W.2d 286 (Tex.Crim. App.1980). Appellant’s fifth ground of error is overruled.

In his sixth ground of error, appellant complains of the following statements by the prosecutor during the State’s closing argument:

But what about the boy? What kind of life is he going to have. What will he think twenty years from now down the line when he thinks back and he knows that his mother was raped in his bed? By the likes of this man? What is going to happen to him, is he going to—he is seven years old—eight years old. What is he going to think? What kind of normal life can he lead when this man has violated the sanctity of his home and has robbed him of the ability to have a normal childhood and discover what sex is in a normal way and life is supposed to treat you? That’s been robbed, that’s been taken. That is out the window because of this man and his mother—

Defense counsel objected; his objection was sustained; and the jury was instructed to disregard the statements. We conclude that the court’s instruction was sufficient to cure any error. Stringer v. State, 632 S.W.2d 340 (Tex.Crim.App.1982). Appellant’s sixth ground of error is overruled.

In his final two grounds of error, appellant contends the prosecutor committed reversible error during closing argument by attacking appellant through his defense counsel. We disagree. Appellant first complains of the following statement:

(By prosecutor) I want to apologize for (sic) you too, because of the nature of this offense and the trial and the kind of testimony that you have had to hear sitting out there. Beforehand you knew only it was a burglary and that the intent involved was that committing sexual assault but in listening to the testimony yesterday although it wasn’t a rape case, it was pretty much tried like one, with all of the accusations and victimizing again taking place her in front of you and I just want to—

Appellant’s objection was sustained, and the jury was instructed to disregard, but his Motion for Mistrial was overruled. This statement was not a direct reference to appellant or to his counsel. We hold that the trial court’s instruction was sufficient to cure any error Anderson v. State, 633 S.W.2d 851 (Tex.Crim.App.1982).

Appellant next complains of the following statement:

(By prosecutor) On behalf of Mr. Wade’s office and people connected to this case, I join in the apologies offered by my co-counsel because you had to sit there and listen to a bunch of perverted facts, twisted lies and inuendos and implications not brought on by the attorneys, not brought on by the Court—

Appellant’s objection was overruled. We hold that, although improper, this statement was not so extreme or manifestly improper as to constitute reversible error. Appellant’s grounds of error seven and eight are overruled.

Affirmed.

DEVANY, J., dissents.

DEVANY, Justice,

dissenting.

George Arnold Giesen was convicted by a jury of burglary of a habitation with intent to commit a sexual assault and sentenced to forty years imprisonment. I respectfully disagree with the majority opinion overruling all of appellant’s contentions and affirming the conviction. A close inspection of the trial proceedings should be offensive to anyone’s sense of a fair trial. Therefore, I would reverse and remand with the trust that the appellant would receive a fair trial.

The record reflects that the complainant was a female with an eleven year old daughter and a seven year old son. She had met the appellant on several previous occasions although there is no evidence of intimacy. At the time of the alleged offense, the appellant supposedly entered the complainant’s house and crawled into bed with her. The complainant was lying naked with her seven year old son in bed with her at the time. Supposedly, the complainant was awakened and discovered the strange male in bed with her. According to complainant’s testimony, the appellant began having intercourse with her, but the seven year old boy woke up and the complainant then said to the appellant, “My God, you woke my son up, get out of here.” At this point the appellant got up, put on his clothes and left. Complainant’s reference to appellant as “George” at this point in her testimony should be noted.

The complainant’s testimony further indicates that she did not report the incident to the police until several days later. When she reported it to a police officer, who testified at the trial, the officer indicated that in such instances, where there has been a delay in reporting a rape, he has some skepticism. At that point during the testimony of the officer, the prosecutor asked the police officer the following question:

Q. If you have a skepticism do you have that rape victim do anything, that is additionally in your procedure?
A. In some instances I ask them if they would take a polygraph test.

At this point defense counsel objected and his objection was sustained. He asked that the jury be instructed to disregard the reference to the polygraph test. The court responded by instructing the jury to disregard the statement. Defense counsel then moved for a mistrial, but was overruled. Following this exchange, the prosecutor then continued the questioning as follows:

Q. After you interviewed this witness, that is (K_W_), did you have any doubt about what she was telling you?
A. No sir I didn’t.

The reasonable inference that would be drawn by reasonable minds, which I assume the jury collectively had, was that the complainant was given a polygraph test and had passed it. In other words, the thought was instilled in the minds of the jury that although complainant had waited several days, under this strange set of facts, to report the incident, she must have been telling the truth because she convinced the police officer who used a polygraph test to quiet his skepticism. No other reasonable inference can be drawn from this testimony.

The prosecutor elicited hearsay testimony from a girlfriend of complainant which the defense attorney objected to. Once again the objection was sustained and the jury was instructed to disregard the testimony. Defense’s motion for a mistrial was overruled. Again the jury received inadmissible testimony which they were instructed to disregard.

Subsequently, during the argument before the jury, the prosecutor in his closing argument stated: “He will do anything, he will violate any oath that he takes on the witness stand. He will violate Again defense counsel objected, but this time the court had mixed emotions on its ruling, clearly expressed in the record. The prosecutor was obviously referring to the appellant’s direct testimony under oath that the complainant had invited him into her apartment and had engaged in sexual intercourse voluntarily.

Next, the prosecutor in his closing argument talked about the seven year old boy and the impact of this rape on his life. Since the evidence did not indicate the boy was fully awake, the statements appeared clearly improper and defense counsel objected. He was sustained, the jury was instructed to disregard the statements, and motion for mistrial was overruled.

Next, the prosecutor during closing argument attempted to apologize to the jury because of the offensiveness of the testimony that they had to hear since the case was more like a rape case than a burglary case. The argument went outside of the record and defense counsel objected; he was sustained, and the jury was instructed to disregard the statements. A motion for mistrial was again overruled.

Finally, the prosecutor, during closing argument, offered his apology to the jury because you had to sit there and listen to a bunch of perverted facts, twisted lies and innuendos and implications not brought on by the attorneys, not brought on by the court_” The clear implication of this statement was that the appellant personally, and no one else, was guilty of such misconduct. Defense counsel’s objection was overruled. The prosecutor then proceeded to call the appellant an animal. Upon objection, the Court instructed the jury to disregard classifying the defendant as anything other than a human.

The majority in its opinion has considered each of these errors as harmless or not reversible error. I strongly disagree with that opinion and disagree that the authorities cited are in support of it.

A review of the prosecutor’s argument indicates that he continuously injected extraneous matters into his argument and repeatedly gave the jury his own personal opinions. All too frequently, after an objection to his argument was sustained, he would flagrantly continue with further ob-jectional argument. I suspect that on many occasions no objection was made in the fear, perhaps, that to do so would only emphasize the improper remarks or prejudice appellant in the eyes of the jury by over objecting. The reference to the use of the polygraph test was clearly improper and the impression which had to be left with the jury was that the police officer had verified the complainant’s story through some means, and that means was a polygraph test. There are instances where curative instructions by the court do not negate the prejudicial effect of argument. This is such a case. The prosecutor’s cumulative misbehavior was of such an extreme nature that any instructions to the jury could not effectively have remedied the damage. This misconduct was so pronounced and persistent that it permeated the entire atmosphere of the trial. The prosecutor’s argument before the jury was error ridden and prejudicial, and the instructions given by the court to the jury did not remove the taint and harm created by the argument. No amount of instructions from the court could have done so. Repeated violations by the prosecutor placed the defendant in the difficult position of having to make constant repeated objections or otherwise suffer a waiver of any claim of error. Brown v. Estelle, 468 F.Supp. 42 (N.D.Tex.1978), affd 579 F.2d 1207 (5th Cir.1979); Washington v. State of Texas, 668 S.W.2d 715 (Tex.App. — Houston [1st Dist.] 1983, pet. ref’d).

I have no doubt that the State prosecutor recognized few, if any, limits on his forensic conduct. Under a duty to seek justice, the prosecutor recognized only a duty to seek victory. Both State and Federal law governing the limits of proper argument find their source in notions of fairness, the same source from which flows the right to due process of law. Moreover, repeated violations of a state law standard, even where that standard is not constitutionally compelled, may in the circumstances of a particular case produce a due process violation because of the prejudicial effect of requiring the defense to continually assert objections or suffer deprivation of a right under state law. The very repetition of the improper argument, moreover, had a corollary effect. We are aware, of course, that a defect of constitutional proportions is not to be found in any but egregious cases. I think this is such a case. I would hold that the appellant was denied a fundamentally fair trial, not that prosecutorial remarks of the character quoted necessarily constitute a due process violation. I am convinced beyond doubt that the prosecutor overstepped the norms of decency in prosecution, fairness in presentation, and truthfulness in argument. In view of the severity of the sentence, it appears that the jury could not weigh all of the admissible evidence fairly in light of all the improper statements that were made during trial. While it is true that the trial judge instructed the jury to disregard the polygraph test, the hearsay testimony, and prosecutor’s improper remarks, such curative instructions did not adequately negate the impact. Such curative instructions are a device to be employed and the utility of which is to be respected. Nonetheless, we are convinced that in the circumstances of this case, this mild cure was insufficient to purge the taint. The constitutional frontier stands very far indeed from the core of good prosecutorial practice. But even the wide open spaces within constitutional bounds are not sufficient range for some prosecutors. A public prosecutor wields the sword of justice. It is his duty to recall that this sword, though forged in the flame-heat of zeal, is alloyed with the iron of restraint. The prosecutor in this case forgot this fundamental truth. As a result, George Arnold Giesen was not afforded that fundamentally fair trial to which he was entitled by law. Houston v. Estelle, 569 F.2d 372 (5th Cir.1978).

Therefore, I would reverse and remand for a new trial.


source: Caselaw Access Project

author: BURGESS, Justice.

license: Public Domain

text:
    Deborah Kay FITTS, Appellant, v. The CITY OF BEAUMONT, Texas, Appellee.
    No. 09 83 223 CV.
    Court of Appeals of Texas, Beaumont.
    Feb. 21, 1985.
    Rehearing Denied March 21, 1985.
    Kenneth W. Lewis, Gribbs & Lewis, Beaumont, for appellant.
    Robert A. Black, Mehaffy, Weber, Keith & Gonsoulin, Beaumont, for appellee.
   OPINION

BURGESS, Justice.

This is a summary judgment case involving a “notice of claim” provision in a city charter. Deborah Kay Fitts filed suit against the City of Beaumont, Texas alleging she had been injured in a fall on the city’s property. The fall, she alleged, was a result of a hole in the roadway which constituted a dangerous condition. The city answered stating Ms. Fitts had not given notice of her injuries within the sixty day period required by the city charter. All the requisite dates were uncontroverted or admitted by both parties. The City of Beaumont filed a motion for summary judgment based upon the admitted noncompliance with the city charter provision. Ms. Fitts responded and attempted to avoid summary judgment by alleging there was a fact issue concerning her good cause for giving late notice. Summary judgment was granted and appeal was perfected to this court.

Ms. Fitts alleges three points of error:
Number one: “The trial court erred in granting Defendant’s motion for summary judgment because the notice provision in the City Charter of Beaumont violates the Texas and United States Constitutions.”
Number two: “The trial court erred in granting Defendant’s motion for summary judgment because sovereign immunity creates an arbitrary and unlawful distinction between governmental and non-governmental tortfeasors.”
Number three: “The trial court erred in granting Defendant's motion for summary judgment because genuine issues of material fact existed which precluded summary judgment.”
The Charter of the City of Beaumont contains the following provision:
“Sec. 21. Written notice of injury of damage.
Before the City of Beaumont shall be liable for personal injuries of any kind, the person injured or someone in his behalf shall give the City Council notice in writing of such injury within sixty (60) days after the same has been sustained, stating specifically in such notice when, where and how the injury occurred and the extent thereof, and the names and addresses of any person or persons, if any witnessing same, if such names and addresses can be ascertained by reasonable diligence. No officer or employee of the City shall have authority to waive any of the provisions of this section as to notice, but same may be waived only by a resolution of the City Council, made and passed before the expiration of the period herein provided, and evidenced by the minutes of the City Council. (Charter 1947, art. 17 sec. 15).”

The statutory authority for the city’s notice requirement, it being a home-rule city, is derived from TEX.REV. CIV.STAT.ANN art. 1175 (Vernon 1963 and Vernon Supp. 1985). Paragraph 6 of this article is the source of the city’s authority to place limitations upon actions against the city for damages arising from proprietary wrongs. Artco-Bell Corp. v. City of Temple, 616 S.W.2d 190 (Tex.1981). This statutory authority is derived from TEX. CONST, art. XI, sec. 5. This article, however, recognizes the right of the legislature to prescribe limitations for home-rule cities and requires that city charter provisions not be in conflict with the constitution of the state or the general laws enacted by the legislature.

Ms. Fitts alleges, in her first point of error, that Sec. 21 of the Beaumont City Charter is in violation of Art. XI, sec. 5 of the Texas Constitution in that the charter section shortens or abrogates the general two-year statute of limitations in personal injury cases. This argument has long been answered by the general premise authorizing “notice of claim” provisions. The purpose of these requirements, as recognized by the Texas Supreme Court, is to ensure a prompt reporting of claims to enable the municipality to investigate while facts are fresh and conditions remain substantially the same. Such opportunity to investigate, predicated upon timely reporting of claim of injury, enables the city to gather the information needed guard against unfounded claim, settle claims and prepare for trial. City of Houston v. Torres, 621 S.W.2d 588, 591 (Tex.1981). The claim of unconstitutionality under Art. XI, sec. 5 of the Texas Constitution cannot be sustained.

Ms. Fitts next attacks the city charter provision as being violative of TEX. CONST, art. I, sec. 13 or the “open courts” provision. In reviewing previous Texas Supreme cases on city charter provisions, a much cited case is City of Waco v. Landingham, 138 Tex. 156, 157 S.W.2d 631 (1941). Here, Landingham argued the city charter provision was unconstitutional under Art. I, sec. 13 of the Texas Constitution and the fourteenth amendment to the United States Constitution because it was unreasonable and discriminatory, in that it was not possible to give it a fair and impartial application in all instances. The court held the charter provision could not be held unconstitutional merely because it could not be given universal application. McCrary v. City of Odessa, 482 S.W.2d 151 (Tex.1972) established the “minority” exception to notice provisions on the grounds of Art. I, sec. 13. Brantley v. City of Dallas, 498 S.W.2d 452 (Tex.Civ.App.— Eastland 1973, writ ref’d n.r.e.), cert, denied, 415 U.S. 983 (1974) raised the question of the validity of notice provisions under the fourteenth amendment to the United States Constitution and the court held no fourteenth amendment violation existed. City of Houston v. Torres, supra, was not an Art. I, sec. 13 attack on a city charter, but sought to carve a “good cause” exception based on the party’s “belief that his injuries were trivial.” The court refused to carve such an exception. Artco-Bell Corp. v. City of Temple, supra, struck down the requirement that a notice of injury claim be verified. The decision turned, not on a constitutional question, but, on the theory that the requirement was unreasonable under TEX.REV. CIV.STAT.ANN. art. 1175, para. 6 (Vernon 1963). Hanks v. City of Port Arthur, 121 Tex. 202, 48 S.W.2d 944 (1932) was an early case which found a city “notice of defect” provision unconstitutional under Art. I, sec. 13 because the charter provision was unreasonable and violated due process. In Hanks, supra, 48 S.W.2d at 949, our Texas Supreme Court quoted from the Supreme Court of Washington:

“ ‘... Charter provisions of the character in question, whether enacted by the legislature, or, as in the present case, by the city itself, are to be upheld only so far as they are reasonable and tend to the due administration of justice. When such provisions so far depart from reasonableness as to amount to a denial of justice, they are void.’ ”

This brings us almost full circle only to discover that the question of a time period limitation in “notice of injury” charter provisions being in violation of the “open courts” provision of the Texas Constitution is yet unanswered. A recent discussion of the “open courts” provision by our Supreme Court is Sax v. Votteler, 648 S.W.2d 661 (Tex.1983). Admittedly, this is not a city charter case. The court here, declared the limitations provisions of TEX.INS. CODE ANN. art. 5.82, sec. 4 (Vernon 1981) (repealed) to be in violation of Art. I, sec. 13, as it applied to minors. The discussion of Art. I, sec. 13 and its requirements are enlightening and we think, controlling. Basically, Justice Kilgarlin, speaking for the entire court, tells us to weigh the legislative basis for the respective ordinance against the extent to which a litigant’s right to redress is affected. A more recent and more celebrated case is Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984). Here, the same statute as in Sax v. Votteler, supra, was declared unconstitutional in violation of Art. I, sec. 13, because the legislature established an absolute limitation period as opposed to an “accrual” limitation period. Thus, in following Sax v. Votteler, supra, the Supreme Court reaffirmed the proposition that the “open courts” provision of the Texas Constitution prohibits unreasonable limitation provisions.

Turning to the charter provision in question, we must analyze it in accordance with Sax v. Votteler, supra, and Nelson v. Krusen, supra. The general legislative basis for “notice of injury” provisions, as stated in City of Houston v. Torres, supra, is logical and reasonable. But does a 60 day period, without any good cause exception, affect a litigant’s right to redress? Obviously it does. The selection of 60 days as the notice period can be nothing but arbitrary. The legislature, in the “Tort Claims Act” established six months as the time limit within which notice must be given under that act. TEX.REV.CIV.STAT. ANN. art. 6252-19 sec. 16 (Vernon Supp. 1985). While not conclusive, as a reasonable time limitation, this six month requirement is certainly persuasive.

We therefore hold the city charter provision in question violates the “open courts” provision and can not stand. Point of error number one is sustained.

We have considered point of error number two and find it without merit and it is accordingly overruled. Having disposed of the case in the manner indicated, point of error number three need not be decided.

While the trial judge cannot and should not be faulted for following the law as it stood prior to this opinion, the judgment of the trial court is reversed and the cause remanded.

REVERSED AND REMANDED.

      . Answers to Interrogatories indicate the notice to the city was given 66 calendar days after the injury.


author: UTTER, Justice.

text:
    Valentino GONZALEZ, Jr., Appellant, v. STATE of Texas, Appellee.
    No. 13-84-210-CR.
    Court of Appeals of Texas, Corpus Christi.
    Feb. 21, 1985.

      Walter E. Chastain, Corpus Christi, for appellant.
    Grant Jones, Elaine Stone, Corpus Christi, for appellee.
   OPINION

UTTER, Justice.

This is an appeal from a jury conviction for the offense of theft for which the jury assessed punishment at ten years’ confinement in the Texas Department of Corrections. We affirm the judgment of the trial court.

Sandra Lee Dunning, the complainant, testified that, at approximately 9:15 p.m. on November 1, 1983, she was walking alongside Ayers Street in Corpus Christi towards a laundromat. As she was walking, she noticed an individual, who was wearing blue jeans and no shirt and whom she identified to be appellant, jogging up from behind her. As appellant came up behind her, she moved over to let him pass; however, as his steps then slowed down, she turned around, at which time appellant stopped and then attempted to grab with both hands and to pull her purse off of her shoulder until the purse strap finally broke. Appellant then turned and fled with the purse. As appellant fled, Ms. Dunning chased him and saw him jump into a light-colored small car, which she had earlier seen while walking to the laundromat. Ms. Dunning later called the police and subsequently received a message that her purse had been found by Mr. Nichols in a laundromat on Morgan Street in Corpus Christi. After she had picked up her purse from Mr. Nichols, she noticed that her Missouri driver’s license as well as two uncompleted checks were missing.

James L. Nichols, Jr., the owner of a self-service car wash in Corpus Christi, testified that, after 10:00 p.m. on November 1, 1983, he saw a light-colored car pull into one of the self-service car wash stalls. After the car pulled away out of the stall, Mr. Nichols went over to the stall and found a ladies’ purse lying on the concrete floor with all of its contents strewn about the floor of the stall. Among the contents were a driver’s license and a payroll stub, by which he was able to contact Ms. Dunning and tell her that he had found her purse.

Oliver Cantu, an employee at the Whata-burger restaurant at the intersection of Ayers Street and South Padre Island Drive in Corpus Christi, testified that, on November 1, 1983, an individual, whom he identified to be appellant, came into the restaurant late that night and placed an order and paid for his food with a check, which the manager approved. The manager had written on the check the number of a Missouri driver’s license, which appellant had given him and which had a woman’s picture on it. Mr. Cantu further stated that appellant returned to the Whataburger restaurant later that same night.

Esmerelda Ramirez, another employee at the Whataburger restaurant, testified that, on November 1, 1983, she took the order from a man who attempted to pay for his order with a second check, accompanied by a Missouri driver’s license issued to Sandra Lee Dunning. Because of restaurant policy, Ms. Ramirez took the check and the driver’s license to the assistant manager.

Mary Lou Arrendondo, the manager or assistant manager of the Whataburger restaurant on the night of November 1, 1983, was unable to identify the first of the two checks presented at the Whataburger restaurant that night. She stated that she had approved the first check that night because Mr. Cantu had brought it to her while she was on the telephone and that she had merely initialed it. Ms. Arrendon-do further testified that, at about 11:00 p.m. that same night, the second check was brought to her, and that she then told appellant that she could not accept the check.

Charles Joe Parker, a civilian identification analyst employed by the Corpus Christi Police Department, testified that he compared a latent fingerprint taken from the second check with an inked fingerprint of appellant and that, in his opinion, the two fingerprints were the same.

In his sole ground of error, appellant asserts that the trial court erred in admitting evidence of appellant’s commission of two extraneous offenses (the passing of the two forged instruments) for the purpose of proving appellant’s identity. Appellant, in essence, argues that, because the complainant had positively identified appellant as the person who had stolen her purse, the trial court erred by admitting, over appellant’s continued objections, evidence of the passing of the two forged instruments as further proof of appellant’s identity.

Appellant’s argument is based on Redd v. State, 522 S.W.2d 890 (Tex.Crim.App. 1975), and other cases which hold that, in direct evidence cases, extraneous offense evidence may not be used to show identity unless identity has been put in issue through material impeachment of the State’s witnesses or through evidence offered by the defendant. See Prior v. State, 647 S.W.2d 956 (Tex.Crim.App.1988); Walker v. State, 588 S.W.2d 920 (Tex.Crim. App.1979). For reasons stated below, we hold that the extraneous offense evidence, of which appellant complains, was properly admitted despite the fact that this is a direct evidence case and that the issue of identity was not put in issue through material impeachment of the State’s witnesses or through evidence offered by appellant.

The “true” test of extraneous offense evidence admissibility is set forth in Williams v. State, 662 S.W.2d 344 (Tex. Crim.App.1983). In Williams, the Court of Criminal Appeals held that evidence of extraneous offenses committed by an accused may become admissible upon a showing by the prosecution both that the transaction is relevant to a material issue in the case and that the relevancy value of the evidence outweighs its inflammatory or prejudicial potential.

In the present case, appellant’s use of the complainant’s checks shortly after the assault is highly probative of his guilt. In addition, appellant’s possession of the recently stolen checks and driver’s license adds credence to the complainant’s identification of appellant. This evidence, of course, is also prejudicial because it shows appellant’s commission of the extraneous offenses and, perhaps, appellant’s propensity to commit crimes. The evidence is thus both probative and prejudicial.

The issue on appeal is whether the trial court erred in finding that the probative value of this evidence outweighed its prejudicial potential. We find that this case is distinguishable from those cases relied upon by appellant and hold that the trial court did not err.

As cited by appellant, the direct evidence cases, which prohibit the admission’ of extraneous offense evidence to show an accused’s identity, involve situations where the accused had committed other offenses similar to the one charged. See Redd v. State, 522 S.W.2d 890 (Tex.Crim.App.1975); Rogers v. State, 484 S.W.2d 708 (Tex.Crim. App.1972). In each of those cases, the similar offenses were irrelevant to the charged offense except to show that the accused’s conduct, for which the accused was charged, was consistent with his similar criminal conduct and, perhaps, to add credence to direct identification testimony.

However, in the present case, the extraneous offenses were not similar to the charged offense but, instead, concerned appellant’s conduct subsequent to the charged offense which was probative of the assailant’s identity. More importantly, instead of showing that appellant’s conduct was consistent with similar criminal conduct, the extraneous offense evidence here directly incriminated appellant in the offense charged. The extraneous offense evidence in the present case was thus much more probative than the extraneous offense evidence in the other cases involving similar criminal conduct; and, while the extraneous offense evidence was still prejudicial, its probative value outweighed its prejudicial potential.

We further note that, in situations like this, the term “res gestae” has been used to allow the introduction of such extraneous offense evidence concerning an accused’s subsequent criminal conduct. See Mitchell v. State, 650 S.W.2d 801 (Tex.Crim.App.1983). However, as recently noted in Maddox v. State, 682 S.W.2d 563 (Tex.Crim.App.1985) (Clinton, concurring) (not yet published), the term “res gestae” adds little more than confusion to any legal discussion because so many wholly unrelated types of evidence, which may or may not be admissible for a diversity of reasons, are labeled “res gestae.” At trial, evidence of what occurs immediately prior and subsequent to the commission of an offense is always admissible under the reasoning that events do not occur in a vacuum and that the jury has a right to have the offense placed in its proper context so that all evidence may be realistically evaluated. When such evidence is offered under this “context of offense” rationale, the prejudicial nature of the evidence will rarely render it inadmissible so long as it truly sets the stage for the jury’s comprehension of the whole criminal transaction. Maddox, 682 S.W.2d at 566. Appellant’s sole ground of error is overruled.

The judgment of the trial court is AFFIRMED.


author: REYNOLDS, Chief Justice.

text:
    Donald Wayne STROUT, Appellant, v. The STATE of Texas, Appellee.
    No. 07-83-0281-CR.
    Court of Appeals of Texas, Amarillo.
    Feb. 22, 1985.

      E. Dean Roper, Amarillo, for appellant.
    Thomas Paige Brittain, Asst. Dist. Atty., Amarillo, for appellee.
    Before REYNOLDS, C.J., and DODSON and BOYD, JJ.
   REYNOLDS, Chief Justice.

A jury convicted appellant Donald Wayne Strout of possession of a controlled substance, oxycodone, and assessed his punishment at a $3,000 fine and five (5) years confinement in the Texas Department of Corrections. However, the imposition of the prison sentence was suspended in favor of probation.

On appeal, appellant contends, in three grounds of error, that the trial court erred in denying his respective motions (1) to suppress evidence discovered and seized as a result of an illegal warrantless search, (2) for a mistrial when the deliberating jurors were exposed to the fact that he was simultaneously being tried for another offense in the same court, and (3) for a mistrial because of prejudicial jury argument when the prosecutor injected harmful suggestions of his prior misconduct not before the jury. Concluding that the grounds of error do not warrant reversal of the judgment, we affirm.

The controlled substance, oxycodone, the evidence vital to the State’s case, was seized under the authority of a search warrant from a locked safety deposit box purchased by appellant under the name Supreme Jewelers. In presenting his first-ground contention that the seized oxyco-done should have been suppressed, appellant admits that he does not complain of the sufficiency of the probable cause for the issuance of the search warrant; instead, he contends that an illegal warrant-less search was conducted to obtain the probable cause itself upon which the search warrant was issued. A summary of the pertinent evidence will serve to position appellant’s contention.

Acting upon information from two informants that appellant kept narcotics in safety deposit boxes of Stout Safe Storage located in a building in Amarillo, detective Edward Smith, sergeant Sams and officer David Abraham arrived at the building with a dog, Risky, trained to detect narcotics by smell. Displayed on the outside of the building was the business trademark “Stout Safe Storage, Total Privacy and Security.” Access to the storage area was controlled by an electronically-opened inner door operated by a security guard. Tom Stout, manager of the storage facility, explained that the access is limited to customers, prospective customers and people with related business who come to speak to him.

The officers approached manager Stout and asked, “Does Donald Strout have a safe deposit box here?” Stout replied, “We do not have a box listed in Donald Strout’s name.” After further conversation during which the officers advised Stout that they knew appellant was doing business with the firm and was storing illegal drugs in the facility, the officers inquired of Stout, “Would you give us permission to enter the door with a dog?” Stout said he stated it would be all right, although detective Smith reported that Stout said, “You have got the dog.”

Admitted by Stout to the facility of 1,126 deposit boxes, none of which was airtight, the officers, with Risky being handled by Abraham, walked around the perimeter three times. On each occasion, the dog Risky “alerted,” i.e., he became agitated to indicate his detection of the odor of narcotics, at a spot on the aisle below a group of boxes numbered 830, 829, 880 and 879; but, the dog was unable to isolate the particular box(es) from which the odor emanated. The officers, believing the dog was unable to pinpoint the box(es) due to the air conditioner and humidifier blowing, requested Stout, and he agreed, to turn off the air conditioner and humidifier that night and allow them to return in the morning.

The next morning, the officers, again having been informed that appellant had some narcotics in the boxes, returned to the building with the dog Risky. Following the procedure used the previous day, officer Abraham led Risky through the vault area three times, and on each occasion Risky “alerted” to the group of boxes numbered 830, 829, 880 and 879. When asked, manager Stout said that he had seen appellant in those boxes. Stout volunteered that box number 830 was empty, and he opened it with a key to show the officers that it was empty. Stout, who does not keep a duplicate key to the boxes that are rented or purchased, was informed that a search warrant would be secured.

Later that day, officers came to the building with a locksmith and a search warrant. The locksmith drilled the boxes numbered 829, 880 and 879. In one of the boxes was found the oxycodone which is the subject of this prosecution.

The crux of appellant’s initial contention is that because a storage locker is entitled to Fourth Amendment protection, Kolb v. State, 532 S.W.2d 87 (Tex.Cr.App.1976), and he had an expectation to the total privacy represented by the management of Stout Safe Storage, the detection of the controlled substance by the canine Risky in the secured place not open to the public constituted an illegal search. The contention appears to be a novel one in Texas law; but, when considered in the light of the actual underlying facts and the controlling authority on the subject, the contention must fail, for it becomes obvious that there was no search within the meaning of the Fourth Amendment.

The Fourth Amendment protects people, not “areas,” against unreasonable searches and seizures, Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967), and the protection extends to and safeguards the person’s legitimate expectations of privacy. United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481* 53 L.Ed.2d 538 (1977). It follows that, except in a few specifically and well-delineated instances, an individual’s private interest in a closed locker may not be invaded through a search of the locker by officers without a warrant issued upon probable cause. Kolb v. State, supra, at 88-89. It also follows that there is no prohibited intrusion into a person’s legitimate expectation of privacy, and thus no search within the meaning of the Fourth Amendment, by a canine sniffing a person’s luggage in a public place, United States v. Place, 462 U.S. 696, 707-708, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110,121 (1983), or sniffing in the areaway outside a locker in a semi-public place, United States v. Venema, 563 F.2d 1003, 1006 (10th Cir. 1977); State v. Quatsling, 24 Ariz.App. 105, 536 P.2d 226, 228-29 (1975), cert. denied, 424 U.S. 945, 96 S.Ct. 1416, 47 L.Ed.2d 352 (1976), for the canine’s sniffing around the locker is not an unconstitutional invasion of the locker itself. United States v. Fulero, 162 U.S.App.D.C. 206, 498 F.2d 748, 749 (1974).

Although appellant argues that he had an expectation of the total privacy represented by the management, the expectation could not legitimately extend further than the privacy of the boxes themselves, for he neither rented nor purchased the aisle or areaway in front of the boxes. The areaway outside the boxes was, according to the testimony of manager Stout, open to the firm’s customers and prospective customers and to other persons admitted by Stout, and, therefore, was at least semi-public in nature. Stout consented to the admission of, and admitted, the officers and Risky to the areaway and aisle in front of appellant’s boxes from which, without a physical invasion of the boxes themselves, Risky detected the odor of the controlled substance(s) emanating from appellant’s box(es).

On these facts, we conclude, in harmony with the conclusions of the Venema and Ouatsling courts in analogous factual situations, that Risky’s sniffing in the aisle in front of appellant’s safety deposit boxes did not constitute a search within the meaning of the Fourth Amendment, since appellant did not have a legitimate expectation of privacy in the aisle in front of his boxes. The first ground of error is overruled.

While the jury was deliberating on appellant’s guilt or innocence in the jury room, another jury was being selected in the courtroom from a panel of veniremen for the trial of appellant on another criminal indictment. When the deliberating jurors noted their dispute about the testimony of one witness, the panel of veniremen was removed from the courtroom, the jury was returned to the courtroom to hear the testimony read and then was retired to continue its deliberations, and the panel of veniremen was recalled to the courtroom. During these activities, appellant remained seated at the counsel table.

Upon the happening of these events, appellant moved for, but the court denied, a mistrial on the ground the jurors were exposed to the fact that he was on trial for another offense in the same court. The court’s denial of the mistrial motion is the basis of appellant’s second ground of error.

Appellant’s argument is, in essence, that the events constructively placed the jury on notice that he was on trial for another criminal offense, which constituted inadmissible evidence of prior criminal conduct. However, other than the happenings themselves, there is no evidence of what notice the jurors took of appellant’s presence in the courtroom, where he should have been, see Tex.Code Crim.Pro.Ann. art. 33.03 (Vernon Pamp.Supp. 1966-1985), when they returned to hear the testimony read. At most, then, the events merely raised a fact issue whether the jury actually received inadmissible evidence harmful to appellant, and it is not shown that the trial court abused its discretion in resolving the issue against appellant. Honeycutt v. State, 157 Tex.Cr.R. 206, 248 S.W.2d 124, 125 (1952).

Beyond that, if the jury actually noticed that appellant was on trial for another offense, the notice was invited by him when his counsel, in his argument to the jury, referred to other drugs seized from appellant’s safety deposit boxes and stated, “We are not on trial for that, that is another jury, another day.” It is axiomatic that appellant cannot inject inadmissible evidence into the case and then urge its receipt as a ground for reversal. Thompson v. State, 652 S.W.2d 770, 773 (Tex.Cr.App. 1981). The second ground is overruled.

In making the State’s argument to the jury during the punishment phase of the trial, the prosecutor stated:

You know, Mr. Roper [appellant’s counsel] said he [appellant] had never been in any kind of trouble before, and you know that’s not the truth. The testimony is he has never been convicted in this State or any other State or in the United States.

Appellant’s objection to the argument was sustained, and the court admonished the jury in the following language:

Members of the jury, you are not to consider the statement made by Mr. Hamilton [the prosecutor], I don’t know the exact wording, the only evidence you have is he has been — not been convicted of a felony, never been in any trouble, I’m not sure just what he did say, but you heard the evidence, and the only evidence in the case for your consideration is that that you heard from this witness stand and that is all you are to consider for any purpose, so don’t consider what Mr. Hamilton says, because that is not evidence and that is not evidence in this case.

Appellant then moved for a mistrial, which the court denied. The denial was error, appellant charges in his third ground of error, because the instruction given by the court was not specific or sufficient to cure the prejudicial argument.

Viewed in proper context of the arguments, the prosecutor’s statements did not, as appellant urges, impermissibly inject un-sworn testimony or strike at him over his counsel’s shoulders by suggesting that counsel was lying to the jury; rather, the statements voiced the prosecutor’s appraisal of the accurate state of the evidence, a deduction he was entitled to draw. Denison v. State, 651 S.W.2d 754, 761-62 (Tex. Cr.App.1983). But in any event, if it can reasonably be said that, the argument improperly suggested the existence of other evidence detrimental to appellant, the error was of the type that was cured by the instruction given. Anderson v. State, 633 S.W.2d 851, 855 (Tex.Cr.App.1982). The third ground is overruled.

The judgment is affirmed.


author: DIES, Chief Justice.

text:
    LEVINGSTON SHIPBUILDING COMPANY, et al., Appellants, v. INLAND WEST CORPORATION and Inland Shipyard Corporation, Appellees.
    No. 09 83 234 CV.
    Court of Appeals of Texas, Beaumont.
    Feb. 28, 1985.
    Rehearing Denied March 21, 1985.

      John Cash Smith, Orange, Edward H. Green, Beaumont, for appellants.
    Ralph S. Carrington, Houston, for appel-lees.
   OPINION

DIES, Chief Justice.

Levingston Shipbuilding Company, as plaintiff below, filed suit against Inland West Corporation, as defendant below, for damages and other relief, alleging that defendant had disclosed trade secrets, entrusted to it by plaintiff, to others. Inland West Corporation was an engineering firm which did work for Levingston. Defendant, Inland West Corporation, and its projected shipyard company, Inland Shipyard Corporation, filed an “Original Counterclaim and Third-party Complaint” based upon “libel, abuse of process, and interference with contractual relations”, brought in Edward Earl Paden, the principal owner of Levingston, and alleged, inter alia, that plaintiffs had filed their lawsuit to eliminate defendant from obtaining a bond issue and financial backing in order to establish another shipbuilding concern “in the Orange area.”

After a lengthy jury trial, the following findings were made by the jury: (The numbers used in this opinion correspond to the numbers of the Special Issues in the trial court.)

(1) The jury failed to find that Inland West possessed trade secrets of Leving-ston.
(2) This issue, being conditional on a “yes” answer to No. 1, was unanswered.
(3) Same as 2 above.
(4) Same as 2 and 3 above.
(5) Same as 2, 3, and 4 above.
(6) That E.E. Paden either ordered or authorized the communication of the statements in the petition which Leving-ston filed against Inland West to the Orange and Beaumont news media.
(7) That the statements in the petition were communicated to the news media by representatives of Levingston.
(8) They failed to find that Paden’s ordering the communication of the statements in the petition to the news media was referable to a duty he owed Leving-ston, of which he was an owner and an officer.
(9) They failed to find such ordering was referable to a duty owed to Leving-ston Industries, Inc.
(10) They found that certain statements in Levingston’s petition were materially false.
(11) That each paragraph in Leving-ston’s petition (summarized in the footnote) tended to impeach the honesty, integrity, virtue and reputation of Inland West, thereby exposing Inland West to public hatred, contempt, ridicule and financial injury.
(12) That at the time Paden ordered the communication of such statements to the news media, a person of ordinary care would have known they were materially false.
(13) That a person of ordinary prudence should have known that such statements would injure or impeach the honesty, integrity, virtue or reputation of Inland West and expose it to public hatred, contempt, ridicule or financial injury-
(14) That by clear and convincing evidence, Paden acted with actual malice.
(15) That Paden authorized the seeking of damages by Levingston from Inland West in an amount of $25,000,000 or more.
(16) That Paden ordered the amount of the damages be communicated to the news media.
(17) Failed to find that such authorization by Paden was referable to a duty he owed Levingston.
(18) Failed to find that such authorization by Paden was referable to a duty he owed Levingston Industries.
(19) A person of ordinary prudence would know there were no facts supporting damages of $25,000,000.
(20) That a person of ordinary prudence would know such a communication to the media would cause financial harm to Inland West.
(21) That it was done through malice.
(22) That on July 31,1981, Paden knew Inland West and/or Inland Shipyard was developing a shipyard.
(23) That on such date there was a reasonable assurance Inland West would have received a fabricating contract from U.S. Steel Corp. for a sum of $400,000.
(24) That Paden knew in suing Inland West for $25,000,000 and communicating it to the media he would impede, stop, or hinder Inland Shipyard’s development as a viable or going shipyard.
(25) That the same was done with the purpose of intentionally impeding, stopping, or hindering Inland Shipyard’s development and without just cause.
(26) That Paden’s acts of A. communicating untrue statements to the news media, and B. seeking $25,000,000 in damages and communicating such fact were the proximate cause of Inland West’s losing its investment in Inland Shipyard.
(27) That Inland West’s loss in the shipyard was: A. $465,043.59 for Paden’s ordering of untrue statements to the news media, and B. $465,043.59 for seeking damages of $25,000,000 and communicating it to the news media.
(28) That such conduct proximately caused Inland Shipyard’s failure to receive the U.S. Steel contract.
(29) That the profit in such contract would have been $100,000.
(30) That Inland West’s damages for (a) impairment of professional reputation, (b) impairment as a creditworthy borrower, and (c) public ridicule among its competitors was $3,000,000.
(31) That Inland West’s damages for impairment to its financial reputation as a result of the seeking of damages of $25,000,000 and the communication thereof to the news media, was $2,000,-000.
(32) That exemplary damages of $2,000,000 against each of the parties listed should be assessed for the untrue stories maliciously communicated to the news media.
(33) That $4,000,000 against each of the parties listed should be assessed as exemplary damages for authorizing a suit for $25,000,000 and communicating it to the news media.

After notice and hearing, the court disregarded certain issues and findings and entered judgment that Inland West Corporation shall recover from E.E. Paden the sum of $5,465,043.59; that Levingston Shipbuilding recover nothing in its claim against Inland West; and Inland West and Inland Shipyard shall recover nothing against Levingston Shipbuilding and Lev-ingston Industries.

It is from this judgment that all parties have perfected appeal to this Court. In this opinion the parties will be referred to as they were below or by name.

Paden’s first eight points of error are grouped in his brief. The first is the real crux of this appeal: “The trial court erred in rendering judgment against Ed Paden because statements made in a petition are privileged and cannot constitute libel.”

In James v. Brown, 637 S.W.2d 914, 916 (Tex.1982), the Court wrote:

“Communications in the due course of a judicial proceeding will not serve as the basis of a civil action for libel or slander, regardless of the negligence or malice with which they are made. Reagan v. Guardian Life Insurance Co., 140 Tex. 105, 166 S.W.2d 909 (1942)....”

In Reagan, supra, a statement which a jury found to be a forgery was filed with the Board of Insurance Commissioners. The Court held that it was privileged the same as if uttered or published in the course of a judicial proceeding, in that the privilege applies to proceedings before commissions which exercise quasi-judicial powers. The Court made this observation at page 913: “It is the occasion, not the communication, which creates or furnishes the privilege.” (emphasis supplied)

Appellant cites us Wyatt v. Kaplan, 686 F.2d 276 (6th Cir.1982). There, defendant gave a statement to a newspaper apparently quoting or discussing the allegations of a lawsuit he had filed. At page 282 the Court wrote:

“We thus intimate no view whether Wyatt would have a cause of action if he could show that Kaplan, in his interview with Mufson, accused him of ‘skimming off substantial amounts of profits’. We hold only that for purposes of establishing publication in Texas, it is not enough to show that similar, or even identical, allegations from a privileged source were published there, [footnote omitted]”

And, in note 7, the Court wrote the following:

“We intimate no view whether any statements Kaplan may have made to Mufson would have been privileged under the law of either Texas or New York.”

In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), the identity of a 17-year-old deceased rape victim was obtained by a television newsman from official court records open to the public. Thereafter, the father of the victim sued for invasion of privacy. The Court held that the protection of freedom of the press barred the state from making defendants’ television broadcasts the basis of civil liability when there was no contention that the rape victim’s name had been obtained in an improper fashion or that it was not an official court document open to public inspection.

In Brown v. Wilson, 554 S.W.2d 817 (Tex.Civ.App. — Tyler 1977, no writ), an attorney published an advertisement which reprinted portions of an opinion by the Texas Supreme Court which indicated that a former judge had been censured by that Court. The Court upheld a summary judgment for the plaintiff below on the grounds the advertisement was true and privileged. See Walker v. Globe-News Publishing Company, 395 S.W.2d 686 (Tex.Civ.App.— Amarillo 1965, writ ref’d n.r.e.). So, without doubt, Levingston’s petition filed in the District Court of Orange County was privileged when filed, and the privilege extended to the press if they obtained it from the records. TEX.REV.CIV.STAT.ANN. art. 5432, sec. 1 (Vernon 1958). However, the question remains: How far does the privilege go?

Inland West, an engineering firm which had done work for Levingston, determined to start up another shipyard in Orange which would be in competition with Levingston. Inland had secured the approval from the Orange County Commissioners’ Court of a $10,000,000 bond issue which was never finalized after Paden filed his lawsuit. There is probative evidence from which the jury could believe that Pa-den was not at all happy about these developments and filed the Levingston suit grossly in excess of any damages that could be proved (even if the allegations were true, which the jury found they were not). Immediately after the lawsuit was filed, Paden instructed a long-time employee and one of his attorneys to give it to the news media, which they did, resulting in extensive publication and harm to Inland’s reputation for confidentiality of its work.

In De Mankowski v. Ship Channel Development Co., 300 S.W. 118, 122 (Tex.Civ. App. — Galveston 1927, no writ), we find:

“The privilege accorded a litigant which exempts him from liability for damages caused by false charges made in his pleadings, or in the court in the course of a judicial proceeding, cannot be enlarged into a license to go about in the community and make false and slanderous charges against his court adversary and escape liability for damages caused by such charges on the ground that he had made similar charges in his court pleadings.”

See also Williams v. Williams, 23 N.Y.2d 592, 298 N.Y.S.2d 473, 479 (1969). The jury in the case at bar believed from the evidence (as reflected in their findings to the special issues) that Paden, using the method of filing the lawsuit, intended to eliminate any competition from Inland, and that, in doing so, he accomplished his purpose. We hold that by Paden’s actions he stepped out of the umbrella of privilege and, thus, overrule this point of error.

Appellant’s points two, three, four, five, and six urge there was no or factually insufficient evidence to support the jury’s answer to Special Issues Nos. 6, 7, 12, 13, and 14. These points are neither discussed nor briefed and, therefore, need not be addressed. Bottinelli v. Robinson, 594 S.W.2d 112, 119 (Tex.Civ.App. — Houston [1st Dist.] 1979, no writ). At any rate, we have examined the evidence and find that the answers to such issues are supported by probative evidence.

Appellant’s seventh point of error complains of the testimony of Gerald A. Greenberg. Greenberg is the editor of a trade publication, the Ocean Construction Report, who testified concerning a publication in his paper. Appellant cites no authority under this point of error and we find no reversible error. TEX.R.CIV.P. 434.

We find no merit in appellant’s eighth point of error, and it is overruled.

Appellant’s points of error nine and ten complain of the trial court’s failure to grant a severance and try separately Lev-ingston’s lawsuit from Inland’s counterclaim.

In matters of severance, a trial court has broad discretion. We find no abuse. Kramek v. Stewart, 648 S.W.2d 399 (Tex.App. —San Antonio 1983, no writ); Lubbock Mfg. Co. v. Perez, 591 S.W.2d 907 (Tex.Civ. App. — Waco 1979, no writ); and Pitts v. Ashcraft, 586 S.W.2d 685 (Tex.Civ.App.— Corpus Christi 1979, writ ref’d n.r.e.). These points of error are overruled.

Appellant’s point of error number eleven urges: “The trial court erred in overruling Paden’s special exception and in admitting evidence concerning the claim under Rule 47.”

It is true no substantive rights are created by the rules of civil procedure. TEX.REV.CIV.STAT.ANN. art. 1731a, sec. 2 (Vernon 1962). However, the court entered no judgment for a TEX.R.CIV.P. 47 violation; hence, we find no reversible error. This point of error is overruled.

Appellant’s points of error twelve through eighteen concern the question of whether the evidence is sufficient to support the damage issues. We find it is and thus overrule these points of error.

Point of error number nineteen complains of the testimony of a witness, McAl-ister, concerning Paden’s refusal to continue lending a crane to launch a boat. We think this evidence was invited. At any rate, we find no reversible error. TEX.R. CIV.P. 434.

Paden has fourteen erosspoints which have either been answered in this opinion or which we find without merit, and they are overruled.

Inland West’s limited appeal has one point of error which we find to be without merit, and it is overruled.

Levingston has two points of error which have been addressed in this opinion. They are overruled.

The judgment of the trial court is affirmed.

Affirmed.

BURGESS, J., not participating.

      . The statements are herewith summarized:
      A. Defendant (Inland West) converted engineering drawings of plaintiff. B. Defendant intends to disclose these secrets to U.S. Steel Corp. to construct drilling vessels in competition with plaintiff, Levingston. C. Defendant is tracing the engineering drawings, removing the inscription showing they belong to plaintiff, Levingston, and then delivering the drawings to U.S. Steel Corp. D. The value of the trade secrets is $10,000,000. E. Inland’s conduct was willful and malicious.

      . TEX.R.CIV.P. 47: "An original pleading which sets forth a claim for relief, whether an original petition, counterclaim, cross-claim, or third party claim, shall contain ... (b) in all claims for unliquidated damages only the statement that the damages sought exceed the minimum jurisdictional limits of the court....”


author: RALEIGH BROWN, Justice.

text:
    Paige B. BAYOUD, Appellant, v. H.R. NASSOUR, Jr. et al., Appellees.
    No. 11-84-127-CV.
    Court of Appeals of Texas, Eastland.
    Feb. 28, 1985.
    Rehearing Denied April 11, 1985.
    John E. Rapier, Rapier & Associates, Dallas, for appellant.
    Waller M. Collie, Jr. and R.L. McSped-den, Collie, McSpedden & Roberts, Dallas, for appellees.
   RALEIGH BROWN, Justice.

This is a suit to dissolve a corporation. Dr. Paige Bayoud sued Dr. H.R. Nassour, Jr. seeking dissolution of Dallas Medical Center, Inc., and requesting that a receiver be appointed to distribute the corporate assets. Upon its findings of fact and conclusions of law, the trial court entered judgment appointing a receiver, canceling 554 of the 900 shares of stock issued to Bayoud and ordering an unequal distribution of the assets after sale. Bayoud appeals. We reverse and render in part, and affirm in part.

Nassour, in 1955, purchased approximately 18 acres of land on Buckner Boulevard in Dallas, Texas, for $36,000. He paid $10,000 cash as a down payment. The balance was reflected in a promissory note signed solely by Nassour. Bayoud and Nassour then sought the assistance of Attorney Richard Mackay in developing a plan for the two medical doctors to establish a practice together. On advice of Mackay, the doctors established a corporation, Dallas Medical Center, Inc. (DMC). Approximately 9.282 acres of the land owned by Nassour was released by the lienholder upon Nassour paying $2,000 and Bayoud paying $5,000 to the lienholder. In 1956, Nassour conveyed the 9.282 acres to DMC. Nine hundred shares of DMC stock were issued to each of the doctors and one share to Mackay, Mackay eventually assigning his share to Nassour. The 1801 shares of stock were issued and the land was conveyed to DMC all before the filing of DMC’s charter. Soon thereafter, the doctors began a litigation struggle that is still ongoing. DMC is still in corporate existence and the land is undeveloped.

Bayoud urges three points of error, and Nassour urges three cross-points.

Bayoud’s first point of error urges that the trial court erred in voiding 554 of his 900 shares because Nassour’s attempt at having them voided was barred by the statute of limitations. We disagree. Nass-our’s defense asserted that the issuance of the 900 shares was void because no consideration was ever received for them. The trial court concluded that the claim was not barred by limitations. The court, in Hennigan v. Heights Savings Association, 576 S.W.2d 126, 130 (Tex.Civ.App. — Houston [1st Dist.] 1978, writ ref’d n.r.e.), considering the application of the statute of limitations as to defensive matters, stated:

The rule in this state is that where the subject matter of a defense interposed by the defendant constitutes an independent cause of action which does not go to the foundation of the plaintiff’s demand, it cannot effect a reduction of the amount of the plaintiff’s recovery except by way of setoff, and the statutes of limitation are available to the plaintiff in respect to such a defense. On the other hand, if the subject matter of the defense be of an intrinsically defensive nature, which, if given effect, will operate immediately as a negation of the plaintiff’s asserted right to recover, or in abatement, either wholly or partially, of the amount claimed, the statute of limitation does not apply. Morris-Buick Co. v. Davis, 127 Tex. 41, 91 S.W.2d 313 (1936).

The defense Nassour urges would void all the shares of stock issued to Bay-oud. Such defense would operate as a negation of Bayoud’s right to recover. If he were not a shareholder, he could not sue for appointment of a receiver or distribution of the assets or a dissolution of the corporation. Considering the nature of the defense, we hold that it was not barred by limitations. The first point is overruled.

Bayoud, in two points of error, challenges the trial court’s action in voiding 554 of his shares in DMC. Nassour argues that since Bayoud failed to fully pay for his shares of stock, the court correctly voided shares issued without full considerations being paid.

The trial court made the following findings of fact:

* * He * * *
3. On May 9, 1956, Bayoud paid $5,000.00 (PX 13) and Nassour about $2,000.00 to the lien holders on the 18-acre tract to obtain a release of their lien on a 9.282-acre tract out of the 18 acres (DX 8).
4. The $5,000.00 paid by Bayoud was not a loan to Nassour but rather was an investment by Bayoud in the 9.282 acres.
5. On May 9, 1956, Nassour deeded the 9.282 acres to Dallas Medical Center, Inc. (“DMC”). (PX 8)
******
7. Although DMC did not come into existence by the issuance of its charter until 7 days after the deed of the 9.282 acres to DMC, Nassour and Bayour intended on and after May 16, 1956, that the 9.282 acres be conveyed to DMC in accordance with the deed of May 9, 1956.
8. The 9.282 acres was effectively conveyed to DMC, which became the owner of the 9.282 acres on May 16, 1956.
9. On April 16, 1956, 1801 shares of common stock in DMC were issued, 900 shares to Nassour (DX 2), 900 shares to Bayoud (DX 4), and 1 share to Mackay (DX 3).
10. Although DMC did not come into existence by the issuance of its charter until 30 days after the issuance of stock, Nassour, Bayoud and Mackay intended on and after May 16,1956, that the DMC stock be issued in accordance with the certificates dated April 16, 1956. ******
17. The fair market value of the 9.282 acres on May 9, 1956, was $18,000.00, of which amount Nassour had paid $13,-000.00 and Bayoud had paid $5,000.00.
18. On May 16, 1956, Nassour and Bayoud intended and agreed that Bayoud would pay Nassour an additional $4,000.00, so that the effect of the conveyance of the 9.282 acres to-DMC would have been that Nassour and Bayoud had each contributed $9,000.00 in property to DMC in exchange for 900 shares of DMC stock.
19. Bayoud never paid Nassour such $4,000.00....

TEX.BUS.CORP.ACT ANN. art. 2.16 (Vernon 1980) provides:

A. The consideration paid for the issuance of shares shall consist of money paid, labor done, or property actually received. Shares may not be issued until the full amount of the consideration, fixed as provided by law, has been paid. When such consideration shall have been paid to the corporation or to a corporation of which all of the outstanding shares of each class are owned by the corporation, the shares shall be deemed to have been issued and the subscriber or shareholder entitled to receive such issue shall be a shareholder with respect to such shares, and the shares shall be considered fully paid and non-assessable. (Emphasis ours)
******
C. In the absence of fraud in the transaction, the judgment of the board of directors or the shareholders, as the ease may be, as to the value of the consideration received for shares shall be conclusive.

The Articles of Incorporation of DMC and supporting affidavit signed and sworn to by Nassour state: “The amount of the capital stock is $18,010, divided into 1801 shares, each of par value of $10, all of which capital stock has been in good faith subscribed and 100% of which has been paid in property.” (Emphasis ours)

There is no finding that the property actually received by DMC was less than the full amount of the consideration to be paid for the issuance of the stock, nor is there any showing of any fraud in the transaction.

Article 2.16 and TEX.CONST. art. XII, sec. 6, which require the full amount of the consideration to be paid before the issuance of stock, are designed to protect the public and bona fide purchasers of stock against stock manipulation. In the instant case, the consideration was fully paid to the corporation. There was, therefore, no violation of either the constitutional provision or the statute. The trial court erred in voiding 554 shares of Bayoud’s stock. We are not required to determine the issue of whether Bayoud may be obligated to Nassour as to the stock issued.

Nassour urges three cross-points. First, he argues that the trial court erred in voiding only a portion of Bayoud’s stock. He contends that since Bayoud did not pay the full amount of consideration recited, all of his stock was invalidly issued. He cites Austin Lake Estates Recreation Club, Inc. v. Gilliam, 493 S.W.2d 343 (Tex.Civ. App. — Austin 1973, writ ref’d n.r.e.), in support of his position. In such case, the court merely upheld the cancellation of all the shares issued to a married couple because the evidence supported a jury finding that the shares were issued without the full amount of consideration having been paid to the corporation. In the instant case, full consideration had been paid to the corporation for the stock issued to Bayoud. The first cross-point is overruled.

Next, Nassour contends that the trial court erred: (1) by canceling the one share of stock issued to Mackay; and (2) in appointing a receiver. Each of these complaints are raised for the first time on appeal. They are therefore waived. West Texas Utilities Company v. Irvin, 336 S.W.2d 609 (Tex.1960).

That portion of the trial court’s judgment which voids 556 shares of stock owned by Bayoud in Dallas Medical Center, Inc. and directs the receiver to distribute the proceeds from the sale of DMC assets in an unequal manner is reversed, and judgment is rendered that Bayoud is the owner of 900 shares of stock in Dallas Medical Center, Inc.; the receiver is directed to distribute the proceeds from the sale of DMC assets in an equal manner; and in all other matters the judgment of the trial court is affirmed.

      . See Bayoud v. Nassour, 353 S.W.2d 331 (Tex. Civ.App. — Texarkana 1961, writ refd n.r.e.).

      . Sec. 6. No corporation shall issue stock or bonds except for money paid, labor done or property actually received, and all fictitious increase of stock or indebtedness shall be void.

      . Bayoud tendered payment of the $4,000 in his second amended answer to counterclaim defendant; however, the tender was to DMC, and the obligation, if any, was owed to Nassour individually.


author: SEERDEN, Justice.

text:
    Vidal S. MARTINEZ, Appellant, v. STATE of Texas, Appellee.
    No. 13-84-399-CR.
    Court of Appeals of Texas, Corpus Christi.
    Feb. 28, 1985.
    Fred Galindo, Brownsville, for appellant.
    Ben Euresti, Jr., Dist. Atty., Brownsville, for appellee.
    Before NYE, C.J., and SEERDEN and BENAVIDES, JJ.
   OPINION

SEERDEN, Justice.

The record in this cause shows that appellant was arrested based on an extradition warrant issued by the Governor of Texas. Pursuant to TEX.CODE CRIM. PROC.ANN. art. 51.13 Sec. 10 (Vernon 1979) appellant was taken before a judge of this State on September 17, 1984, and informed of the demand from the State of Ohio and that he had a right to challenge the demand. The Honorable A.G. Betanc-ourt was appointed to represent appellant.

On October 4, 1984, another short proceeding was held and a hearing was scheduled for October 19, 1984. The trial court asked counsel, “Why don’t you prepare a writ of habeas corpus?” No application for writ of habeas corpus was ever filed.

On October 19, 1984, the trial court conducted a hearing and held that the extradition warrant would be honored and the appellant extradited to Ohio. Appellant gave notice of appeal. A.G. Betancourt was then appointed to represent appellant on appeal.

Appellant raises one “point of error” on appeal. It is not necessary for this Court to address this point, however, as we agree with the State that this Court lacks jurisdiction to consider this appeal.

As noted in Ex parte Chapman, 601 S.W.2d 380, 383 (Tex.Crim.App.1980):

The judge of a court of record before whom an arrestee is brought pursuant to § 10 [of Article 51.13 of the Code of Criminal Procedure] performs a function that is more magisterial than judicial in nature and purpose. Thus, the judge warns the arrestee of his rights in the premises of extradition, and ascertains his desires with respect to exercising them. The judge makes no judicial determination whatsoever....

An appealable judicial determination occurs, however, if the arrestee challenges the extradition by way of a writ of habeas corpus, and receives an adverse ruling by the trial court. If no writ of habeas corpus is filed — even if the trial court gratuitously holds a hearing on the extradition — the ar-restee is not in the posture of an applicant for habeas corpus whose prayer for relief has been denied for appellate purposes. Ex parte Chapman, 601 S.W.2d at 383.

Appellant in this case never filed an application for writ of habeas corpus, and the writ was never denied by the trial court. Hence, no appeal may be taken from the trial court’s order. See Weiner v. Dial, 653 S.W.2d 786 (Tex.Crim.App.1983) (Onion, concurring).

The appeal is dismissed. Ex parte Chapman, 601 S.W.2d at 383.


author: SCHULTE, Justice. STEPHEN F. PRESLAR, Chief Justice,

text:
    MacWHYTE COMPANY, Chancey Equipment Co., et al., Appellants, v. Calixto MORALES, Appellee.
    No. 08-84-00338-CV.
    Court of Appeals of Texas, El Paso.
    March 6, 1985.
    Rehearing Denied April 3, 1985.
    See also, Tex.App., 688 S.W.2d 205.

      Harrell Feldt, Marc L. Skeen, Stubbe-man, McRae, Sealy, Laughlin & Browder, Midland, for MacWhyte Co.
    William A. Hicks, McMahon, Smart, Su-rovik, Suttle, Buhrmann & Cobb, Abilene, for Chancey.
    Mark L. Withrow, Michael C. Steindorf, Turpin, Smith, Dyer & Saxe, Midland, for appellee.
    Before STEPHEN F. PRESLAR, C.J., and OSBORN and SCHULTE, JJ.
   OPINION

SCHULTE, Justice.

This purports to be an interlocutory appeal from an adverse venue ruling. The distinctive thing about the present appeal is that there was a prior venue appeal before us in the same matter prior to the effective date of the venue amendments of September 1, 1983. In the previous instance, this Court reversed and remanded the earlier judgment denying the venue transfer. MacWhyte Company and/or Amsted Industries, Inc., Individually and d/b/a MacWhyte Company and/or MacWhyte Wire Rope Company shall hereafter be referred to as MacWhyte, and Chancey Equipment Company as Chancey. We dismiss the present appeal for lack of jurisdiction to entertain this interlocutory appeal.

Calixto Morales, Appellee, suffered personal injuries on December 30, 1976, while on his job site in Pecos County, Texas, when a wire rope on a crane broke. His suit, filed in Pecos County, alleged Appellant MacWhyte manufactured the wire rope and Appellant Chancey sold and distributed it. Both MacWhyte’s and Chan-cey’s new pleas of privilege and/or motions to transfer venue were filed after September 1, 1983, and all were overruled by the trial court on August 15, 1984. The chronology pertinent here is as follows:

December 28, 1978 — original suit filed in Pecos County, Texas.
December 1, 1982 — this Court reversed the trial court’s venue decision.
September 1, 1983 — the new venue rules went into effect.
October 31, 1983 — Chancey filed a new motion to transfer venue.
April 25, 1984 — MacWhyte filed a new plea of privilege or in the alternative, a motion to transfer venue.
May 7, 1984 — retrial of the venue issue. August 15, 1984 — the trial court overruled the venue motions of both Chancey and MacWhyte to transfer.

We are called upon to determine the applicable law, i.e., which venue statute governs, in order to pass upon the jurisdiction of this Court to entertain this interlocutory appeal. Since we determine that the former law is not applicable, we need not now determine if Plaintiff/Appellee Morales met his burden of proof so as to sustain venue in Pecos County, Texas. That question would nevertheless be confronted ultimately by this Court on an appeal of the case on the merits, should that eventually occur.

This Court no longer has jurisdiction over an interlocutory venue appeal. Wells v. Metro Fina Co., 677 S.W.2d 251 (Tex.App. — El Paso 1984, no writ); Grubbs v. Mercantile Texas Corp., 668 S.W.2d 429 (Tex.App. — Eastland 1984, no writ); Ramcon Corporation v. American Steel Building Company, Inc., 668 S.W.2d 459 (Tex. App. — El Paso 1984, no writ); Boyd v. Raymondville State Bank, 668 S.W.2d 466 (Tex.App. — Corpus Christi 1984, no writ); Graue-Haws, Inc. v. The Honorable Lawrence Fuller, 666 S.W.2d 238 (Tex.App.— El Paso 1984, no writ); Morrison by Mor rison v. Williams, 665 S.W.2d 212 (Tex. App. — San Antonio 1984, no writ); Byrd v. Pharris, 663 S.W.2d 856 (Tex.App. — San Antonio 1983, no writ). Contra: Gonzalez v. H.E. Butt Grocery Co., 667 S.W.2d 188 (Tex.App. — Corpus Christi, 1983, no writ).

Appellants argue that since this Court had remanded the earlier venue matter, the old venue law should now be applied by the trial court and by this Court in hearing the second appeal. They also argue that the law of the case should be applied. A litigant does not have a vested right in procedural rules, and new rules may be put into effect taking away prior remedies provided the litigant is not left without any remedy. Church v. Crites, 370 S.W.2d 419 (Tex.Civ.App. — San Antonio 1963, writ ref’d n.r.e.). The litigants’ remedy here has merely been deferred. The law of the case applies only to matters dealt with in the prior appeal. Denny v. White House Lumber Company, 150 S.W.2d 296 (Tex.Civ.App. — Amarillo 1941, writ dism’d). This Court did not determine, in the prior appeal of the venue matter whether the venue law before or after September 1, 1983, should apply to the matter on remand. As to the argument that this Court has continuous jurisdiction over this particular venue matter, this Court retains only enough power over a case to ensure that its decisions are executed. Wells v. Littlefield, 62 Tex. 28 (1884). Appellants had received all remedies heretofore ordered by this Court. This Court does not retain jurisdiction to hear a case again after it has been remanded to a trial court unless a second appeal is duly perfected. In this instance, under the amended statute and rule, the appeal does not now lie. Appellants are not left without a remedy. Their appeal has merely been deferred until the matter reaches an appellate court on its merits.

The appeal is dismissed.

STEPHEN F. PRESLAR, Chief Justice,

dissenting.

I respectfully dissent on the basis that this case should be determined under the law existing prior to the September 1, 1983, amendments. I would interpret Senate Bill 898, 68th Legislature (1983), amending Article 1995 and repealing Article 2008, Tex. Rev.Civ.Stat.Ann., to provide that cases filed prior to September 1, 1983, are to be determined under the prior law. Poor legislative draftsmanship has created the problem of the effective date of the legislation and at least eight cases by the courts of appeals have passed on the questions as presented in various procedural stages of trial with varying reasons for the conclusions each reached. To date, the Supreme Court has not had occasion to construe the statute. However, conflict exists. The case of Gonzalez v. H.E. Butt Grocery, Co., 667 S.W.2d 188 (Tex.App. — Corpus Christi 1983, no writ) conflicts with the cases cited in our majority opinion.

As noted, the one act, Senate Bill 898, both amends Article 1995 and repeals Article 2008, so that when it speaks of the effective date, that includes the changes in Article 1995. These changes in substantive rights are overlooked in prior opinions and in our majority opinion. Section 1 of the act makes extensive amendments to Article 1995 with its many exceptions to the general venue rule. It is followed by Sections 2 and 3, providing:

Section 2. Article 2008, Revised Civil Statutes of Texas, 1925, as amended, is repealed.
Section 3. This act takes effect September 1, 1983, and shall not apply to pending appeals on venue questions. For the purpose of appeals on venue questions pending prior to September 1, 1983, the former law is continued in effect.

It is the writer’s belief that under rules of statutory construction, the interpretation to be given this act is that the former venue statute governs all eases filed prior to the effective date and all cases filed after that date are governed by the amended statute.

The effective date is stated. That is followed by the additional provision as to pending appeals. There is no mention of suits pending in the trial courts, unless attention is given to the provision of the effective date, September 1, 1983. Our question becomes, did the legislature intend that the amendment should alter the venue of pending suits — be retroactive? Our case put venue in issue long before September 1, 1988. The rule of construction is that an act will not be applied retrospectively unless it appears by fair implication from the language of the entire act that it was the intent of the legislature to make it applicable to both past and future transactions. Ex parte Abell, 613 S.W.2d 255 (Tex.1981); Merchants Fast Motor Lines, Inc. v. Railroad Commission of Texas, 573 S.W.2d 502 (Tex.1978); Coastal Industrial Water Authority v. Trinity Portland Cement Division, General Portland Cement Company, 563 S.W.2d 916 (Tex.1978). And it is held, a statutory amendment is presumed to operate prospectively only. Amplifone Corporation v. Cameron County, 577 S.W.2d 567 (Tex. Giv.App. — Corpus Christi 1979, no writ). And the burden of persuasion is on the one urging retroactive construction. Id. Considering the entire act before us, there is no “fair implication” that the legislature intended it to be retroactive. Nothing is presented to overcome the presumption against retroactivity. If the act is construed to be retroactive, then all cases filed prior to September 1, 1983, and not on appeal by that date, are without a remedy. Venue rights applicable to these cases may no longer exist. They are too soon for the new act and too late for the old law. What was pled, how and when, under the old law cannot be used under the new, for as noted, some actions have been abolished and the requirements to qualify for relief under the new law have been so harnessed by new rules of procedure, effective September 1, 1983, that there is no possibility of carrying over into the new what was started under the old. See Rules 86 through 89 inclusive. Tex.R.Civ.P. In fact, a reading of those rules raises the belief that the Supreme Court wrote them with no thought that the act was retroactive. As to construction of venue statutes in particular, Texas courts have many times determined the applicability of an amendment of a venue statute to a case filed before the amendment’s effective date. Each time, the courts have held that the law in effect at the time of the filing of suit determined venue, beginning with Baines v. Jemison, 86 Tex. 118, 23 S.W. 639 (1893). There the Supreme Court answered as a certified question, the very question now before us. The case involved a suit being filed prior to a statutory change in the venue law but tried after the change. It was held the law in effect at the time of filing controlled. For an excellent discussion of the present amendment see McCown, The Effective Date of the Venue Amendments, State Bar Litigation Report, The Advocate, April, 1984, Vol. 3. No. 2. Professor McCown cites authorities for the fact that since the case of Baines v. Jemison, “the legislature has never been found to have intended to alter the venue of a pending suit in an amendment to a venue statute.”

The instant case does not qualify as an exception from that construction of the legislative intent. There is no right of appeal under the amended act, but this case was filed under the old law and should be processed through the courts under that law. I would consider the appeal.


text:
    MacWHYTE COMPANY, Relator, v. Honorable Alex R. GONZALEZ, Respondent.
    No. 08-84-00443-CV.
    Court of Appeals of Texas, El Paso.
    March 6, 1985.

      Harrell Feldt, Marc L. Skeen, Stubbe-man, McRae, Sealy, Laughlin & Browder, Inc., Midland, for relator.
    Alex R. Gonzalez, Judge, 83rd District Court, Fort Stockton, pro se.
    Mark L. Withrow, Michael C. Steindorf, Turpin, Smith, Dyer & Saxe, Midland, for interested party.
    Before STEPHEN F. PRESLAR, C.J., and OSBORN and SCHULTE, JJ.
   OPINION

SCHULTE, Justice.

This is an original proceeding for writ' of mandamus. Relator prays that the Honorable Alex Gonzalez, District Judge, be commanded to vacate his order overruling Relator’s motions to transfer venue and command him to transfer the case of Morales v. MacWhyte Co., et al. to a district court in Dallas County, Texas. See 688 S.W.2d 202. We shall refer to Relator as MacWhyte. We deny the writ.

Calixto Morales suffered personal injuries on December 30, 1976, while on his job site in Pecos County, Texas, when a wire rope on a crane broke. His suit was filed in Pecos County on December 28, 1978, alleging MacWhyte manufactured the rope. On April 20, 1982, the trial court overruled Relator’s plea of privilege to move the case to Dallas County. On December 1, 1982, this Court reversed the trial court’s venue decision and remanded the case to the trial court. While the matter was back in the trial court, the new venue statute (Article 1995, Tex.Rev.Civ.Stat. [Vernon Supp. 1985]) and new venue rule (Rule 86, Tex.R. Civ.P.) went into effect September 1, 1983. On April 25, 1984, Relator filed a new plea of privilege or in the alternative, a motion to transfer venue. On August 15, 1984, the Respondent judge denied the transfer based on the amended venue statute and rule, and we believe correctly.

Relator argues that since this Court had remanded the venue matter, the old venue law should now be applied by the trial court and by this Court in hearing the second appeal. Relator argues that the law of the case should be applied. A litigant does not have a vested right in procedural rules, and new rules may be put into effect taking away prior remedies provided the litigant is not left without any remedy. Church v. Crites, 370 S.W.2d 419 (Tex.Civ. App. — San Antonio 1963, writ ref’d n.r.e.). The law of the ease applies only to matters dealt with in the prior appeal. Denny v. White House Lumber Company, 150 S.W.2d 296 (Tex.Civ.App. — Amarillo 1941, writ dism’d). This Court did not determine in the prior appeal of the venue matter whether the venue law before or after September 1, 1983, should apply to the matter on remand. As to the argument that this Court has continuing jurisdiction, this Court retains only enough power over a case to ensure that its decisions are executed. Wells v. Littlefield, 62 Tex. 28 (1884); Hughes v. Sanders, 243 S.W.2d 211 (Tex.Civ.App. — San Antonio 1951, no writ). Relator had received all remedies heretofore ordered by this Court. This Court does not retain jurisdiction to hear a case again after it has been remanded to a trial court unless a second appeal is duly perfected. In this instance, under the amended statute and rule, the appeal does not now lie. That is not to suggest that Relator is left without a remedy. Its appeal has merely been deferred until the matter reaches an appellate court on its merits.

This Court does not have jurisdiction of the interlocutory venue appeal as reflected by its opinion issued this same date, 688 S.W.2d 202. Wells v. Metro Fina Co., 677 S.W.2d 251 (Tex.App. — El Paso 1984, no writ); Grubbs v. Mercantile Texas Corp., 668 S.W.2d 429 (Tex.App. — Eastland 1984, no writ); Ramcon Corporation v. American Steel Building Company, Inc., 668 S.W.2d 459 (Tex.App. — El Paso 1984, no writ); Boyd v. Raymondville State Bank, 668 S.W.2d 466 (Tex.App. — Corpus Christi 1984, no writ); Graue-Haws, Inc. v. The Honorable Lawrence Fuller, 666 S.W.2d 238 (Tex.App. — El Paso 1984, no writ); Morrison by Morrison v. Williams, 665 S.W.2d 212 (Tex.App. — San Antonio 1984, no writ); Byrd v. Pharris, 663 S.W.2d 856 (Tex.App. — San Antonio 1983, no writ). Contra: Gonzalez v. H.E. Butt Grocery Co., 667 S.W.2d 188 (Tex.App.— Corpus Christi 1983, no writ). Nor do we find that the Relator is entitled to the writ. An adequate remedy at law is available to the Relator on the final appeal of the case on the merits, should that be necessary. We find no abuse of discretion on the part of a trial court in applying the law in effect at the time of the filing of the motions in question and the hearing thereon. Article 1995, Tex.Rev.Civ.Stat.Ann. (Vernon Supp. 1985); Rule 86, Tex.R.Civ.P.

The writ of mandamus is denied.

STEPHEN F. PRESLAR, Chief Justice,

dissenting.

I respectfully dissent on the basis that this case should be determined under the law existing prior to the September 1,1983, amendments. I would interpret Senate Bill 898, 68th Legislature (1983), amending Article 1995 and repealing Article 2008, Tex. Rev.Civ.Stat.Ann., to provide that cases filed prior to September 1, 1983, are to be determined under the prior law. Poor legislative draftsmanship has created the problem of the effective date of the legislation and at least eight cases by the courts of appeals have passed on the questions as presented in various procedural stages of trial with varying reasons for the conclusions each reached. To date, the Supreme Court has not had occasion to construe the statute. However, conflict exists. The case of Gonzalez v. H.E. Butt Grocery, Co., 667 S.W.2d 188 (Tex.App. — Corpus Christi 1983, no writ) conflicts with the cases cited in our majority opinion.

As noted, the one act, Senate Bill 898, both amends Article 1995 and repeals Article 2008, so that when it speaks of the effective date, that includes the changes in Article 1995. These changes in substantive rights are overlooked in prior opinions and in our majority opinion. Section 1 of the act makes extensive amendments to Article 1995 with its many exceptions to the general venue rule. It is followed by Sections 2 and 3, providing:

Section 2. Article 2008, Revised Civil Statutes of Texas, 1925, as amended, is repealed.
Section 3. This act takes effect September 1, 1983, and shall not apply to pending appeals on venue questions. For the purpose of appeals on venue questions pending prior to September 1, 1983, the former law is continued in effect.

It is the writer’s belief that under rules of statutory construction, the interpretation to be given this act is that the former venue statute governs all cases filed prior to the effective date and all cases filed after that date are governed by the amended statute.

The effective date is stated. That is followed by the additional provision as to pending appeals. There is no mention of suits pending in the trial courts, unless attention is given to the provision of the effective date, September 1, 1983. Our question becomes, did the legislature intend that the amendment should alter the venue of pending suits — be retroactive? Our case put venue in issue long before September 1, 1983. The rule of construction is that an act will not be applied retrospectively unless it appears by fair implication from the language of the entire act that it was the intent of the legislature to make it applicable to both past and future transactions. Ex parte Abell, 613 S.W.2d 255 (Tex.1981); Merchants Fast Motor Lines, Inc. v. Railroad Commission of Texas, 573 S.W.2d 502 (Tex.1978); Coastal Industrial Water Authority v. Trinity Portland Cement Division, General Portland Cement Company, 563 S.W.2d 916 (Tex.1978). And it is held, a statutory amendment is presumed to operate prospectively only. Amplifone Corporation v. Cameron County, 577 S.W.2d 567 (Tex. Civ.App. — Corpus Christi 1979, no writ). And the burden of persuasion is on the one urging retroactive construction. Id. Considering the entire act before us, there is no “fair implication” that the legislature intended it to be retroactive. Nothing is presented to overcome the presumption against retroactivity. If the act is construed to be retroactive, then all cases filed prior to September 1, 1983, and not on appeal by that date, are without a remedy. Venue rights applicable to these cases may no longer exist. They are too soon for the new act and too late for the old law. What was pled, how and when, under the old law cannot be used under the new, for as noted, some actions have been abolished and the requirements to qualify for relief under the new law have been so harnessed by new rules of procedure, effective September 1, . 1983, that there is no possibility of carrying over into the new what was started under the old. See Rules 86 through 89 inclusive. Tex.R.Civ.P. In fact, a reading of those rules raises the belief that the Supreme Court wrote them with no thought that the act was retroactive. As to construction of venue statutes in particular, Texas courts have many times determined the applicability of an amendment of a venue statute to a case filed before the amendment’s effective date. Each time, the courts have held that the law in effect at the time of the filing of suit determined venue, beginning with Baines v. Jemison, 86 Tex. 118, 23 S.W. 639 (1893). There the Supreme Court answered as a certified question the very question now before us. The case involved a suit being filed prior to a statutory change in the venue law but tried after the change. It was held the law in effect at the time of filing controlled. For an excellent discussion of the present amendment see McCown, The Effective Date of the Venue Amendments, State Bar Litigation Report, The Advocate, April, 1984, Vol. 3, No. 2. Professor McCown cites authorities for the fact that since the case of Baines v. Jemison, “the legislature has never been found to have intended to alter the venue of a pending suit in an amendment to a venue statute.”

The instant case does not qualify as an exception from that construction of the legislative intent. There is no right of appeal under the amended act, but this case was filed under the old law and should be processed through the courts under that law.

I would consider the appeal.