author: BASS, Justice.

text:
    Eva Barrett LOTT, Appellant, v. The STATE of Texas, Appellee.
    No. 01-82-0707-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 31, 1985.

      Maria Elena Castellanos, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., J. Harvey Hudson, Jim Lavine, Harris County Asst. Dist. Attys., Houston, for appellee.
    Before WARREN, BASS and DUGGAN, JJ.
   OPINION

BASS, Justice.

OPINION ON MOTION FOR REHEARING

The opinion of this court delivered on November 15, 1984, is withdrawn and the following opinion is substituted.

Appellant, Eva Lott, was indicted for the murder of her minor son. A jury found her guilty and the trial court assessed punishment at confinement for 45 years. Appellant brings two grounds of error. In her first, she contends the trial court erred in refusing to grant her motion to suppress evidence because the evidence was tainted by an illegal arrest, and in her second, she argues that there was insufficient evidence.

We affirm.

In April, 1981, a Houston Fire Department paramedic, Michael Augun, and his partner, Keith Dees, proceeded to an apartment two blocks from the firehouse on a call that a baby’s heart had stopped beating. Gary Barber answered the door and Augun saw a child lying on its back. The child, Thomas Lott, was badly burned, battered and barely showed any signs of life. Augun started cardiopulmonary resuscitation and transported the child to Twelve Oaks Hospital.

The child was pronounced dead at the hospital. An examination of the body by several physicians, including a pathologist and a radiologist, revealed that the child had sustained numerous injuries, including the following: hair pulled from his head; bruises to the head and face; the left eye was bruised and swollen; the skull was fractured; the upper lip was torn away; the neck had abrasions or rope burns; first and second degree water burns on his scalp, forehead, eyelids, and the sides of his face; a stab wound on the face; a gaping puncture wound on the left foot; a gaping laceration on his left temple; and, the lower teeth were loose. There were fresh cigarette burns on the chest and left abdomen. The ninth rib had been fractured ten to fourteen days before death. The surface of the scrotum contained one fresh, one healing, and one healed cigarette burn. An incision to the scrotum revealed a massive hemorrhaging that was from two to three days old. The rectum had been forcefully dilated. The anus was surrounded by red friction markings and several strands of human hair were pushed into the anal canal. There had been considerable hemorrhaging of the rectum and the injury was from 24 to 48 hours old. There were parallel scars across his lower legs that were at least one month old. X-ray photographs revealed a swelling of the per-iosteum or sheath surrounding the bones of Tommy’s arms, consistent with trauma inflicted anywhere from five days to several months earlier and the presence of epiphy-seal lines in the leg bones, indicating growth arrest and possible malnutrition over a period of months.

Augun contacted the Houston Police Department and reported the incident as a case of child abuse. Juvenile Officers Keller and Coleman responded and went to Twelve Oaks Hospital. There they examined and photographed the child and made notes of the child’s abused condition.

Augun arrived back at the fire station and with several other firemen returned to the apartment, where Augun spoke with Barber to get information for his report. Augun had to leave, but Captain Higgins and several other firemen continued to watch the apartment. A short time later, Barber left the apartment and Higgins ordered one of his men to follow him. Meanwhile, Captain Higgins radioed for police assistance and informed them that one of his men was in pursuit of Barber. Officers Rankin and Dielensynder were immediately dispatched to the location. Rankin testified that as he approached Barber’s apartment a fireman flagged him down and directed him to another fireman who was holding Barber.

Barber was arrested and placed in the patrol car. Officer Rankin read Barber his Miranda rights. At this time Barber told Officers Rankin and Dielensynder: “l didn’t do it. Eva did it.” In response to an inquiry, Barber identified Eva as the mother of the child.

While Barber was being handcuffed, Officers Paramore, Kay, Keller, and Coleman arrived, and Officer Keller showed the photographs of the boy’s body to Officer Rankin and his partner and gave them a verbal description of the body’s condition. Officer Rankin and his partner departed with Barber for the police station, and after they had traveled 32 blocks, Barber yelled out, “There’s Eva.” They stopped the car and determined that the appellant was the mother of the dead child and that she knew Barber. They asked her to accompany them to the police station.

The appellant was read her Miranda warnings. Later, she was taken before a magistrate who informed her that she had been accused of murder and advised her of her rights. The magistrate made inquiries of the appellant to make certain that she understood her rights and privileges. She was taken to the Juvenile Division where she again received her Miranda warnings and gave a statement.

In appellant’s first ground of error, she argues that her warrantless arrest violated article 14.04 of the Texas Code of Criminal Procedure. We find that the statute has two requirements which the state must establish: first, a showing of probable cause that a person has committed or is about to commit a felony, and second, that such person is about to flee. Honeycutt v. State, 499 S.W.2d 662 (Tex.Crim.App.1973).

In considering if the state had probable cause to arrest, we must determine whether the officer’s knowledge of the facts and circumstances was based upon reasonably trustworthy information which would warrant a reasonable and prudent person in believing that a particular person has committed or is committing a crime. Hawkins v. State, 660 S.W.2d 65, 70 (Tex. Crim.App.1983).

The Court of Criminal Appeals in Woodward v. State, 668 S.W.2d 337, 345 (Tex.Crim.App.1984), held that the sufficiency of probable cause is determined on a case by case basis. Here, Officer Keller went to the hospital and saw the child’s body and the abuse he had undergone. While Officer Keller was at the hospital inspecting the child’s body and taking photographs, Officer Rankin arrested Barber and placed him in the patrol car. It was then Barber shouted, “I didn’t do it; Eva did it.” Shortly thereafter, Officer Keller arrived at the scene and gave a verbal description of the child’s condition and showed the photographs he had taken to Officer Rankin and his partner. From the photographs and the verbal description, Officer Rankin learned that Thomas Lott had been abused. Upon completion of this briefing, Officer Rankin and his partner transported Barber downtown. During this ride, Barber suddenly yelled out, “There she is,” “Eva.” The officers saw the appellant walking along a public sidewalk, 32 blocks from home. They stopped the car and asked the appellant if she knew Tommy Lott. The appellant replied, “Yes, that’s the name of my son.” She was then asked whether she knew the person in the back of the patrol car, and to which she replied, “Yes, that’s Gary.” Then Barber shouted, “Don’t talk to them. Tommy is dead.” Upon hearing that her son was dead, the appellant made no verbal or emotional response. According to article 14.04, it was then that the officers needed to have knowledge sufficient to warrant a reasonable and prudent person in believing that appellant had committed, by at least negligent omissions, the felony offense of injury to a child.

Once the appellant admitted that she was the boy’s mother, the officers should have assumed that she knew of the child’s injuries, and if so, she would have committed the offense of “injury to a child,” as promulgated in article 22.04 of the Texas Penal Code.

The second element of article 14.04 is the requirement that the suspect is about to flee. In Hardison v. State, 597 S.W.2d 355, 357 (Tex.Crim.App.1980), the Court of Criminal Appeals held that a showing that the offender is about to escape is indispensable under article 14.04. See also King v. State, 631 S.W.2d 486 (Tex.Crim.App.1982). This requirement was modified in Fry v. State, 639 S.W.2d 463 (Tex.Crim.App.1982), where the Court of Criminal Appeals said:

We hold Article 14.04 (V.A.C.C.P.) does not require a showing that the offender in fact was about to escape, nor does it require a showing that there in fact was no time to procure a warrant. The statute merely requires a showing that the officer was acting upon satisfactory proof from representations by a credible person that the felony offender is about to escape, so that there is no time to procure a warrant.

Id. at 476 (emphasis added); see also Pearson v. State, 657 S.W.2d 120, 121 (Tex. Crim.App.1983). In examining the facts of this case, it is doubtful whether there is evidence that the officers were acting upon satisfactory proof of representations by a credible person that the appellant was about to escape, so that there was no time to procure an arrest warrant. Moreover, Officer Rankin testified at trial that he did not believe Barber’s accusation that Eva committed the murder or that apopellant was about to escape. However, the circumstances under which she was found dictated her apprehension as a practical matter. She was found on a public street, thirty-two blocks from home, at a time when her alleged boy friend had been arrested in connection with the death of her child and had accused her of causing the child’s death. Moreover, there was nothing to keep her from fleeing Houston. However, there is still a serious question whether the requirements of article 14.04 were met. See, e.g., Randall v. State, 656 S.W.2d 487, 490 (Tex.Crim.App.1983); Hogan v. State, 631 S.W.2d 159, 161 (Tex. Crim.App.1982); Hardison, 597 S.W.2d at 357.

Whether or not the requirements of article 14.04 were met, our concern is whether the statement later obtained from Eva Lott was so tainted by the illegal arrest that the admission of the statement requires a reversal of the judgment. Appellant concedes that her statement was voluntary, but contends that the statement was not made with a sufficient act of free will so as to purge the taint of illegality.

There are well-established guidelines to determine whether the taint connecting the illegal arrest and the statement has been so attenuated as to dissipate that taint and ensure the admissibility of the statement. The Court of Criminal Appeals has adopted the four factors set, out in Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416 (1975), to determine whether a statement was obtained by exploitation of an illegal arrest. They were adopted and set out in Green v. State, 615 S.W.2d 700, 708 (Tex.Crim.App. 1981), as follows:

(1) Whether Miranda warnings were given;
(2) The temporal proximity of the arrest and the confession;
(3) The presence of intervening circumstances; and,
(4) The purpose and flagrancy of the official misconduct.

The presence or absence of one of these factors is not an indication per se of free will sufficient to break the causal connection between the illegality and the statement. Nor will the presence of one of these factors bar a finding of sufficient free will. However, when an illegal arrest has occurred, the state has the burden to show that the statement was sufficiently purged of the taint. Garrison v. State, 642 S.W.2d 168, 169 (Tex.Crim.App.1982). In reviewing the first factor, the appellant received her Miranda warnings when she arrived at the police station, again when she was taken before a magistrate, and a third time when she was turned over to the Juvenile Division. In considering the second factor, the record shows that she gave her statement within two hours of her arrest. The Court of Criminal Appeals in Townsley v. State, 652 S.W.2d 791 (Tex. Crim.App.1983) noted that the “longer the time elapsed between confession and arrest the more likely it is that the taint of the illegal arrest will be attenuated.” Id. at 797. In considering the third factor, that of intervening circumstances, we observe that the state claims that the appellant’s presentment before a neutral and detached magistrate within 90 minutes of her arrest was a factor intervening between her arrest and her statement. In Gregg v. State, 667 S.W.2d 125, 130 (Tex.Crim.App.1984), the Court of Criminal Appeals noted that the defendant there was taken before a magistrate. In considering the final factor, the purpose or flagrancy of the official misconduct, the record indicates the officers brought the appellant to the police station for investigatory purposes.

We also find the appellant’s statement to be exculpatory. With the exception of noting some small bruises and injuries, which she said had been caused by Barber, appellant denied any knowledge of the life threatening bruises and injuries to the child. Moreover, she stated that if any abuses occurred or were suffered by the child, then they were not done in her presence and were very minor ones that she could properly treat and cure. She also denied that she inflicted any bruises, abrasions, or injuries to the child. Furthermore, we find that the only potentially incriminating statement made by appellant was that she had seen the child the night before and the morning of his death. This was amply proven by at least two other witnesses.

In conclusion, upon consideration of all four of the factors adopted by Green and the exculpatory nature of the statement, we find that the statement was the product of a cool, calm, deliberate reflection. Thus, we hold under these facts any taint to her statement was sufficiently purged of its illegality, and the statement was therefore admissible. We overrule appellant’s first ground of error.

Appellant further contends that she must be acquitted because the evidence is insufficient to support her conviction. The Court of Criminal Appeals has held that the standard for reviewing sufficiency of the evidence on appeal is the same for direct and circumstantial evidence cases, Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App. 1983); Denby v. State, 654 S.W.2d 457 (Tex.Crim.App.1983), and that standard is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Griffin v. State, 614 S.W.2d 155 (Tex.Crim.App.1981).

Summarizing the evidence, we find that the appellant was the natural and custodial parent who had a duty to provide medical care and protection for the child. She knew the child was being abused over an extended period of time, and that it was Barber who was beating her child. However, because she was dependent on the drugs Barber supplied, she did not leave and did not provide proper medical care or protection for her child. The record also shows that the facial injury that resulted in a subdural hematoma was plainly visible, and that the child’s other injuries would be visible to any person bathing the child. Additionally, there was testimony that the appellant was at the apartment with the child the day before and on the day of his death. It was also shown by expert testimony that the child suffered from at least three life-threatening injuries to the head, all of which were visible more than twenty-four hours prior to his death. Moreover, the appellant did not seek medical attention for the child. The state also proved that the child’s death was a result of massive subdural hematoma secondary to a blunt trauma.

The evidence adduced at trial is sufficient to support the conviction. The facts in the record are sufficient to exclude every reasonable hypothesis except the guilt of the appellant. The appellant’s second point of error is overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: REEVES, Justice. TIJERINA, Justice,

license: Public Domain

text:
    ESTATE OF Horace CLIFTON, et al., Appellants, v. SOUTHERN PACIFIC TRANSPORTATION CO., Appellee.
    No. 04-83-00127-CV.
    Court of Appeals of Texas, San Antonio.
    Jan. 31, 1985.
    Rehearing Denied March 6, 1985.

      Dale Friend, Ronald Wardell, Fisher, Gal-laagher, Perron & Lewis, Billy McAninch, John O’Quinn, Houston, for appellants.
    Howard Newton, Matthews & Bran-scomb, Judith R. Blakeway, San Antonio, for appellee.
    Before CADENA, C.J., and TIJERINA and REEVES, JJ.
   OPINION

REEVES, Justice.

James Bozeman, Horace Clifton and Ronald Athey were accidently killed while on a fishing trip in Val Verde County. The accident occurred when the van in which they were riding was struck by a freight train owned by Southern Pacific Transportation Company at a railroad crossing on Box Canyon Road. The train’s engineer was Rusty Reams. Suit was instituted by Linda Clifton, widow of Clifton, individually and as legal representative of the estate of Clifton, and as next friend of their three minor children, Anthony Paul Clifton, David Wayne Clifton, and Julie Ann Clifton, and Clifton’s mother, Ada Clifton Weatherly. Ronald Athey’s widow, Diane Athey, individually and as legal representative of Athey’s estate and as next friend of their three minor children, Jeffrey Athey, Kathy Athey and Michael Athey, and his parents, Mae and Elzie Athey, also sued the Railroad and its engineer.

Southern Pacific and Reams filed a third party action against the estate of James Bozeman alleging Bozeman was the driver of the van and was negligent in his operation of the vehicle. They sued Bozeman for contribution and/or indemnity on any judgment that might be rendered against them. Thereafter, Clifton and Athey amended their pleadings to add the Boze-man estate as a defendant. Bozeman instituted a counterclaim against Southern Pacific and Reams. The jury found that the railroad crossing at Box Canyon Road was extra hazardous and the failure of Southern Pacific to have flashing lights at the crossing to warn vehicular traffic was negligence and a proximate cause of the accident. The jury also found that the driver of the van was guilty of negligence, which negligence was a proximate cause of the accident in the following particulars: failure to keep a proper lookout, failure to timely apply the brakes, and stopping the van on the railroad track. The jury, however, failed to find that Bozeman was driving the van.

While the jury was deliberating its verdict, Clifton and Athey settled their case with the estate of Bozeman for $1,500,-000.00.

The jury answered the damage issue as follows:

Linda Clifton (widow):
A. Care, maintenance, support, services, advice, counsel and contributions of a pecuniary value that Linda Clifton would in reasonable probability have received from Tony Clifton during his lifetime had he lived.
ANSWER: $500,000.00
B. Loss of companionship, society, affection, comfort, sexual relationship and love.
ANSWER: $250,000.00
Anthony Clifton (son):
A. Care, maintenance, support, services, education, advice, counsel and contributions of a pecuniary value that Anthony Clifton would in reasonable probability have received from Tony Clifton during his lifetime had he lived.
ANSWER: $25,000.00
B. Loss of companionship, society, affection, comfort and love.
ANSWER: $10,000.00.
David Wayne Clifton (son):
A. Care, maintenance, support, services, education, advice, counsel and contributions of a pecuniary value that David Clifton would in reasonable probability have received from Tony Clifton during his lifetime had he lived.
ANSWER: $50,000.00
B. Loss of companionship, society, affection, comfort and love.
ANSWER: $25,000.00.
Julie Clifton (daughter):
A. Care, maintenance, support, services, education, advice, counsel and contributions of a pecuniary value that Julie Clifton would in reasonable probability have received from Tony Clifton during his lifetime had he lived.
ANSWER: $50,000.00
B. Loss of companionship, society, affection, comfort and love.
ANSWER: $50,000.00.
Mrs. Ada Clifton Weatherly (mother):
A. Care, maintenance, support, services, advice, counsel and contributions of a pecuniary value that Ada Clifton Weatherly would in reasonable probability have received from Tony Clifton during his lifetime had he lived.
ANSWER: $5,000.00
B. Loss of companionship, society, affection, comfort and love.
ANSWER: $5,000.00.
Diane Athey (widow):
A. Care, maintenance, support, services, advice, counsel and contributions of a pecuniary value that Diane Athey would in reasonable probability have received from Ronald Athey during his lifetime had he lived.
ANSWER: $1,000,000.00
B. Loss of companionship, society, affection, comfort, sexual relationship and love.
ANSWER: $250,000.00
C. Mental suffering in the past and which in reasonable probability she will suffer in the future.
ANSWER: $10,000.00
Mr. Elzie Athey (father):
A. Care, maintenance, support, services, advice, counsel and contributions of a pecuniary value that Elzie Athey would in reasonable probability have received from Ronald Athey during his lifetime had he lived.
ANSWER: $2,500.00
B. Loss of companionship, society, affection, comfort and love.
ANSWER: $2,500.00
C.Mental suffering in the past and which in reasonable probability he will suffer in the future.
ANSWER: $500.00
Mrs. Mae Athey (mother):
A. Care, maintenance, support, services, advice, counsel and contributions of a pecuniary value that Mae Athey would in reasonable probability have received from Ronald Athey during his lifetime had he lived.
ANSWER: $2,500.00
B. Loss of companionship, society, affection, comfort and love.
ANSWER: $2,500.00
C. Mental suffering in the past and which in reasonable probability he [sic] will suffer in the future.
ANSWER: $500.00
Fay Bozeman (Widow):
A. Care, maintenance, support, services, advice, counsel and contributions of a pecuniary value that Fay Bozeman would in reasonable probability have received from James C. Bozeman during his lifetime had he lived.
ANSWER: $500,000.00
B. Loss of companionship, society, affection, comfort, sexual relationship and love.
ANSWER: $250,000.00
Amanda Bozeman (daughter):
A. Care, maintenance, support, services, education, advice, counsel and contributions of a pecuniary value that Amanda Bozeman would in reasonable probability have received from James
C. Bozeman during his lifetime had he lived.
ANSWER: $35,000.00
B. Loss of companionship, society, affection, comfort and love.
ANSWER: $10,000.00

The jury also found that the conduct of the Southern Pacific constituted gross negligence, that such act was a proximate cause of the accident and awarded each of the appellants an additional $10,000.00 exemplary damages.

Southern Pacific filed a motion which the court granted to disregard the finding of damages for loss of companionship, society, affection, comfort, sexual relationship, love and mental suffering and the finding of gross negligence and exemplary damages.

INTANGIBLE DAMAGES UNDER THE WRONGFUL DEATH STATUTE

The Bozemans, Cliftons and Atheys maintain error in the trial court denying their right to recover loss of companionship, society, affection, comfort and love, and in the case of the deceased’s spouses, the loss of sexual relationship (loss of society). The Atheys also claim compensation for their mental suffering, some times referred to as mental anguish, endured in the past and which they would suffer in the future.

In Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983), the Court established the law in Texas that a parent is entitled to compensation for the mental anguish suffered due to the loss of a child in a wrongful death action. Furthermore, the Court stated that thereafter a plaintiff could “recover damages for loss of companionship and society and damages for mental anguish for the death of his or her child.” Id., at 254. Implicit in Sanchez was the intent of the Supreme Court to extend this doctrine to the other members of that class who have a cause of action against a tort-feasor under the Wrongful Death Act. The Court expressly overruled more than twenty (20) decisions of the Supreme Court of Texas which directly dealt with the Wrongful Death Statute, some of which denied recovery to other classes of claimants provided for under the statute. Some of the cases specifically overruled are: J.A. Robinson Sons, Inc. v. Wigart, 431 S.W.2d 327 (Tex.1968) (suit for wrongful death of spouse and father brought for loss of society by a wife and three minor children); Tex-Jersey Oil Corp. v. Beck, 157 Tex. 541, 549, 305 S.W.2d 162, 169 (Tex.1957) (suit by a daughter for the wrongful death of her mother wherein the jury was instructed not to consider sorrow and grief and loss of companionship or love and affection); Gulf, Colorado & Santa Fe Railway Co. v. Farmer, 102 Tex. 235, 239, 115 S.W. 260, 261 (Tex.1909) (suit by husband and daughter for the wrongful death of the wife and mother wherein recovery was limited only for the pecuniary loss and specifically excluded all recovery for the loss of society); International & Great Northern Railway Co. v. McVey, 99 Tex. 28, 32, 87 S.W. 328, 329 (Tex.1905) (suit by wife and children for the wrongful death of the husband and father wherein the jury was instructed to exclude recovery of any compensation for loss of society); Merchants’ & Planters’ Oil Co. v. Burns, 96 Tex. 573, 581, 74 S.W. 758, 761 (Tex.1903) (wife and mother suing for wrongful death of husband and son wherein jury was instructed not to consider loss of society).

Article 4671 provides “for actual damages on account of the injuries causing the death of any person ...” The Supreme Court has now, in our opinion, expanded “actual damages” to include loss of society and mental anguish and we see no rational reason why the Court would exclude any member of the class or prefer one member of the class to the others. In accord, Missouri Pacific Railroad Co. v. Dawson, 662 S.W.2d 740 (Tex.App.—Corpus Christi 1983, writ ref'd n.r.e.).

The Railroad alleges there was no evidence which would authorize the submission of the damage issue for loss of society and the damage on mental suffering or, as it is also referred to, mental anguish. In reviewing the evidence, we will consider only the evidence which, when viewed in the light most favorable, support the jury’s finding and disregard all evidence leading to a contrary conclusion. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

Before examining the no evidence question, we will discuss the proof necessary to establish loss of society and mental anguish. The elements which comprise loss of society and mental anguish are similar, in part, in that the loss of love, companionship and the insecurity due to the lack of advice and support of a lost one can trigger a psychological problem on the part of the bereaved claimant. Be that as it may, mental suffering proof requires a showing of psychic and/or physical injuries directly inflicted upon the mind of the claimant. The distinction between loss of society and mental suffering was recognized in Minyard Food Stores v. Newman, 612 S.W.2d 198 (Tex.1980); Gulf States Utilities Co. v. Reed, 659 S.W.2d 849 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.).

In reviewing the evidence on loss of society, the statement of the court in Whittlesey v. Miller, 572 S.W.2d 665 (Tex.1978) is helpful.

The loss of companionship, emotional support, love, felicity, and sexual relations are real, direct, and personal losses. [Citations omitted.] It is recognized that these terms concern subjective states which present some difficulty in translating the loss into a dollar amount. The loss, however, is a real one requiring compensation, and “the issue generally must be resolved by the ‘impartial conscience and judgment of jurors who may be expected to act reasonably, intelligently and in harmony with the evidence.’ ” [Citation omitted.]

572 S.W.2d at 667.

It is well settled Texas law that Neither the pecuniary benefits the children might have reasonably expected to receive from their mother, nor the value to them of her nurture, care, education and guidance can be measured in dollars and cents with either mathematical or legal certainty. For this reason the assessment of damages in this kind of case is a matter peculiarly within the province of the triers of the facts, and unless the jury’s award of damages should be so clearly excessive as to amount to an abuse of discretion, we feel that it should not be disturbed.

Texas & N.O.R. Co. v. Landrum, 264 S.W.2d 530, 539 (Tex.Civ.App.—Beaumont 1954, writ ref’d n.r.e.).

The evidence in support of the award of loss of society and mental suffering discloses each of the couples were blessed with, what is generally called, a good marriage. The fishing tournament they were attending is a good example. Bozeman, Clifton, Athey and their wives were members of a fishing club called “Guys and Gals.” Each married couple, as a team, would compete against other teams and other clubs. Each of the wives, as well as other witnesses, testified to instances of the families working and playing together. Each of the wives stated that her husband was the principal source of the income for the family and was relied upon for counsel and advice. The decedents were considered good fathers who loved their children and the evidence showed their children sought and heeded their counsel and advice. There was testimony as to the close family relationship of the decedents to their families and particularly the physical and moral support of each of the fathers given to his children.

Clifton was survived by a mother and Athey was survived by a mother and father. There was a close relationship between the decedents and their parents. Mrs. Weatherly, Clifton’s mother, testified that Horace Clifton was the oldest of seven children. She lived in a small town approximately 20 miles from Nacogdoches and he made it a point to visit her at least once a month and always on holidays. Clifton gave her a car in 1980. She sought and took his counsel on many things, especially financial matters. He prepared her income tax. As a result of this fatal accident she became ill with what she described as “a near breakdown” which required medical attention. She further testified that she continues to have emotional problems which directly relate to the death of her son.

Elzie Athey and his wife, May, lived in Lufkin which is approximately 20 miles from Nacogdoches, the resident city of Athey. Athey, along with his family, frequently visited with his mother and father and, when unable to visit in person, would talk with his parents by phone. Mr. Athey testified that he occasionally fished with his son and Ronald made repairs around the parents’ home. Mrs. Athey supported her husband’s testimony. She testified that, from time to time, Ronald would call her early in the morning and tell her to make some hot coffee, biscuits and gravy because he alone or with his stepchildren was coming over for breakfast. She missed this relationship very much and testified that it was horrible without it. Evidence established that Ronald Athey was an attentive son, and his death had created a void in his parents’ lives.

We are of the opinion that there was evidence to support the submission of the special issue on loss of society.

Mrs. Diane Athey testified, as the result of the death of her husband, she had trouble sleeping at night, had been hospitalized for depression, and was under medical care. She further testified that since her husband’s death she occasionally had difficulty in coping with the children, a problem she did not have prior to the death of her husband.

We are of the opinion that there is some evidence to support the submission of the mental suffering issue as to mental anguish of Mrs. Athey.

Our search- of the record as to the mental anguish of Mr. Elzie Athey and Mrs. May Athey, parents of Ronald, fail to reveal any probative evidence in support of their allegation of mental suffering. Consequently, we are of the opinion that the trial court was correct in entering judgment denying mental suffering damages as to Mr. Elzie Athey and Mrs. May Athey.

PREJUDGMENT INTEREST

The Athey’s assert error on the part of the trial court in not granting prejudgment interest on the compensatory damages. In calculating the compensatory damages the jury also considered his future earnings. Prejudgment interest is not permissible on future earnings because there could be no loss incurred by delaying the payment of future earnings from the time of death until judgment is rendered. Fisher v. Agios Nicolaos, 628 F.2d 308, 319 (5th Cir.1980), cert. denied, 454 U.S. 816, 102 S.Ct. 92, 70 L.Ed.2d 84 (1981); City of New York v. Bernstein, 332 F.2d 1006, 1008 (2d Cir.1964), cert. denied, 379 U.S. 922, 85 S.Ct. 277, 13 L.Ed.2d 335 (1964). In addition to Athey’s earnings, the award for compensatory damages included future compensation for loss of care, maintenance, advice and counsel. We affirm the trial court’s judgment denying prejudgment interest.

EXEMPLARY DAMAGES

The jury found that the railroad crossing was extra hazardous, and the failure of the railroad to have flashing signal lights at the crossing to alert vehicular traffic of an approaching train was negligence. The jury also found that the railroad was negligent in its failure to keep its right-of-way clear of weeds and vegetation but that this act of negligence was not a proximate cause of the accident. The jury found the train was not visible before the driver of the van reached a point fifteen feet from the nearest rail of the railroad track.

The jury also found that the conduct of the railroad constituted gross negligence which was a proximate cause of the collision and awarded each of the appellants $10,000.00 as exemplary damages. The railroad filed a motion for judgment n.o.v. contending there was no evidence to support the award of exemplary damages, which motion was granted by the court. In Burk Royalty Co. v. Walls, 616 S.W.2d 911, 920 (Tex.1981), the court stated:

Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it.

In reviewing a no evidence point relating to gross negligence, we are instructed:

When there is some evidence of defendant’s entire want of care and also some evidence of “some care” by the defendant, the jury finding of gross negligence through the entire want of care resolves the issue, and the appellate court is bound by the finding in testing for legal sufficiency.

Id., at 921.

We are further instructed:

In determining whether there is some evidence of the jury’s finding of gross negligence, the reviewing court must look to all of the surrounding facts, circumstances, and conditions, not just individual elements or facts ... the existence of gross negligence need not rest upon a single, act or omission, but may result from a combination of negligent acts or omissions, and many circumstances and elements may be considered in determining whether an act constitutes gross negligence. A mental state may be inferred from actions. All actions or circumstances indicating a state of mind amounting to a conscious indifference must be examined in deciding if there is some evidence of gross negligence.
In making this determination, all evidence must be considered in a light most favorable to the party in whose favor the verdict has been rendered, and every reasonable inference deductible from the evidence is to be indulged in such party’s favor. [Citations omitted.]

Id., at 922.

The essential ingredient which raises ordinary negligence to gross negligence and thereby authorizes a jury to award exemplary damages is the mental attitude of the defendant. It must be shown, “that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it.” Id., at 920.

The trial court instructed the jury, in deliberating on the gross negligence issue, to consider only the negligence of the railroad in failing to have flashing lights at the crossing. We will, therefore, consider all the surrounding facts, circumstances and conditions favorable to the finding of the jury that this type of warning device should have been erected and in use at the time of the accident.

West of the crossing where the accident occurred, the railroad had, in constructing the track, carved its right-of-way from a hill or a large mound of rock. In doing so, it left a wall or barrier which obscured the view of the engineer when the train was traveling east to a vehicle proceeding south, the direction the van was traveling at the time of the accident. It was described by some as a “blind crossing,” in that a motorist traveling south on the road could not see an approaching train until the vehicle was actually on the railroad track. The track had been in use for some years and this condition was well known to the train’s crew and supervisors. There had been, “one near miss before at this location.” A conductor for the railroad testified the crossing was a little more dangerous than most due to the limited visibility.

The jury found the railroad company did fail to clear the right-of-way of weeds and vegetation, but such failure was not a proximate cause of the accident. Nevertheless, the high weeds in the right-of-way could obscure a driver’s vision and can be considered in the overall review of the railroad’s attitude toward this crossing. Burk, supra, at 920.

We conclude there is more than a scintilla of evidence to support the jury’s findings of gross negligence to warrant the submission of the exemplary damage issue.

EXCESSIVE DAMAGES

The railroad suggests that a re-mittitur is in order in that the jury’s award of damages to appellees for loss of society ranged from 25% to 100% of the awards for pecuniary losses, and, therefore, is excessive. The determination of the amount of the award rests with the jury and there is no set formula to follow. The award of the jury, however, is subject to review by the Court. We also recognize that there should be some uniformity as to the amount of verdicts and judgments in the various cases. Kimbriel Produce Co. v. Webster, 185 S.W.2d 198 (Tex.Civ.App.— San Antonio 1944, writ ref’d w.o.m.).

We do not understand the relevancy of the ratio the award of pecuniary damages bears to the award for loss of society. The decedents were approximately the same ages, between 34 to 41 years, at the time of their deaths. Thus, the life expectancies were approximately the same. Two of the widows received $500,000.00 and one widow received $1,000,000.00 as pecuniary damages. Each received $250,-000.00 for loss of society. The children and parents received from $500.00 to $50,000.00 as pecuniary damages and from $2,500.00 to $50,000.00 for loss of society. The record strongly indicates that the jury, in assessing loss of society, considered a number of factors such as the formative years of a child, and the loss to that child of the father’s council, love and advice. The amount of the award, in general, diminishes as the age of the child increases. The jury was uniform in its application of such factors with the award for loss of society to the widows as well as to the children. In our opinion, the awards are not excessive.

IDENTIFICATION OF THE VEHICLE’S DRIVER

The jury found that the driver of the van was negligent in his failure to keep a proper lookout, failure to apply his brakes and in stopping the van on a railroad crossing when a person using ordinary care would not have done so, and that each of the aforesaid negligent acts was a proximate cause of the accident. However, in response to the special issue inquiring if Bozeman was the driver of the van, the jury answered no. The jury found no acts of negligence attributable to engineer Reams. Consequently, the trial court attributed 100% of the negligence to the railroad.

The railroad filed a motion that the court disregard the finding Bozeman was not the driver of the van in that the evidence established as a matter of law that Bozeman was the driver. The trial court denied the motion.

The following evidence will be reviewed in the following manner: first, the evidence will be viewed in its most favorable light that tends to support the jury’s finding and all evidence leading to a contrary conclusion will be discarded. In other words, a “no evidence” review as mandated in Garza v. Alviar, supra. If we find more than a scintilla of probative evidence which supports the jury finding, the cross-point asserted by the railroad will be overruled. If, however, we find a scintilla or less of probative evidence to support the finding, then we will consider the entire record to determine if the contrary evidence establishes that Bozeman was the driver as a matter of law. See Texas & N.O.R. Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522, 529-531 (Tex.1947); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TEXAS L.REV. 361, 363-364 (1960).

The railroad evidence is circumstantial. The court in Lumbermen’s Underwriting Alliance v. Bell, 594 S.W.2d 569 (Tex.Civ.App. — Tyler 1980, writ ref’d n.r.e.) aptly sets forth these parameters governing circumstantial evidence:

To establish a fact by circumstantial evidence the circumstances relied upon must have probative force sufficient to constitute a basis of legal inference; it is not enough that they raise a mere surmise or suspicion of the existence of the fact or permit a purely speculative conclusion. (Citations omitted)
Although facts may be established circumstantially, the circumstances themselves must be shown by direct evidence, and cannot be inferred from other circumstances nor can a presumption of fact rest upon a fact presumed; in other words, it is not admissible to get into the domain of conjecture and pile one presumption upon another.

594 S.W.2d at 570.

The following is a narrative of the uncontroverted evidence. The van was owned by Bozeman’s employer, but Boze-man had the privilege of the use of the van during his leisure time. He drove the van from his home to Yal Verde County and was the driver of the van when he and his two other fishing buddies, Athey and Clifton, left to check the boat ramp on Lake Amistad. Mrs. Clifton testified that the three couples, each driving separate vehicles, arrived at a motel in Val Verde County approximately 5:30 P.M. and that shortly thereafter, at approximately 5:45 P.M. to 5:50 P.M., Bozeman, Athey and Clifton left to check out a boat ramp where they intended to launch their boats the next morning. The fatal accident occurred sometime before 6:20 P.M. At the time of their departure from the motel, Bozeman was driving, Clifton was sitting in the front passenger seat and Athey was seated immediately behind the driver’s seat.

Favorable to a finding that Bozeman was not the driver is the following. A witness, Gene Blount, testified that on the day of the accident, he was travelling north on Box Canyon Road and was flagged down by a driver of a van. He estimated the time to be a few minutes after 5:00 P.M. The occupants of the van were looking for a boat ramp. Blount observed there were two passengers in the van, a man in the front seat next to the driver, and a person in the back seat. He could not determine whether the occupant in the back seat was a man or a woman as the back window was dark, thereby obfuscating his view. The window on the driver’s side was rolled down and the driver of the van and Blount were approximately three feet apart. Blount described the driver as young, approximately 34 years of age, that his hair was sort of light and short and curly. He had a full face. He could not recall if the driver had a beard or mustache. The van driver was not wearing glasses.

The testimony and physical evidence established that Clifton, 41 years of age, was bald-headed with hair on temples and the back of his head. Athey, 34 years of age, had a beard and mustache. Bozeman, 40 years of age, had black hair and was clean shaven.

Although we review Blount’s testimony in its most favorable light in support of the finding, giving effect to all reasonable inferences that may be properly drawn therefrom, we would be taking his testimony out of context and distorting it if we did not review his entire testimony. When asked if he could identify the driver if shown a picture of the man who was driving the van, he replied that he doubted it. When asked if shown the three pictures of the men who died in the accident, could he pick out the driver, he replied, “No sir, it would be highly unlikely.”

Deputy Sheriff Johnny Rodriguez, Val Verde County Sheriffs office was dispatched to the scene of the accident approximately 6:20 P.M. Upon arriving at the scene, he found the van, which had been struck broadside by the train on the passenger side, situated approximately 228 feet east of the crossing. He testified that the van was pointing in a northerly direction, indicating the van had turned approximately 180 degrees after impact. He also testified that, in his opinion, the van had turned over at least once and possibly several times. He found the van lying on the driver’s side to the ground. Bozeman’s body was lying against the door on the driver’s side, Clifton’s body was lying on top of Bozeman and Athey’s body was about two feet to the rear of Bozeman. All three bodies were situated on the left hand or driver’s side of the van.

Rodriguez, based on the physical evidence, surmised that Bozeman was the driver of the van and placed that information in his report. He testified that he couldn’t be positive that Bozeman was the driver since he was not found sitting in the driver’s seat behind the wheel.

We are of the opinion that there is less than a scintilla of evidence that someone else other than Bozeman was driving the van at the time of the accident. We will, therefore, consider the evidence which would support the assertion that Bozeman was the driver of the van.

Charles Rubel, an accident analyst, testified the van was impacted on the passenger side, and, in his opinion, became attached to the front of the engine and was carried 228 feet down the track where it became dislodged, rolled up on its top, continued to slide on its top until it came to a resting place approximately 20 feet south of the south rail, and then rolled back over on the driver’s side. He theorized that the van did not roll over completely as there was no evidence on the impact side of the van that it ever came in contact with any dirt or other elements in the terrain. Conversely, the driver’s side of the van revealed evidence of dirt and other debris from the track which indicated the van stayed attached to the front of the engine as it was pushed down the track. The bodies were in the same positions the men were in when they left their Del Rio motel shortly before the accident. We conclude, as a matter of law, that Bozeman was the driver of the van at the time of the fatal accident.

FAILURE OF RAILROAD TO RECEIVE SETTLEMENT CREDIT

After the case had been submitted to the jury but before it returned a verdict, Athey and Clifton settled with Bozeman for $1.5 million dollars. The comparative negligence issue was conditioned on attributing fault between Bozeman, Reams and the railroad. Since the jury found Reams not negligent and Bozeman not the driver of the van, the jury did not answer the comparative negligence question and the trial court attributed 100% of the fault to the railroad. The appellants propose that we reverse the trial court’s judgment in denying them their loss of society and exemplary damages and render judgment on the jury verdict. This we cannot do. The jury has found the driver of the van and the railroad responsible for acts of negligence which proximately caused the collision and we have found Bozeman, as a matter of law, the driver of the van. Therefore, some fault must be attributable, to Boze-man in order for the railroad to receive its proper credit pursuant to TEX.REV.CIV. STAT.ANN. art. 2212a.

TEX.R.CIV.P. 484 provides, in part,

When the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial.

Because this fact issue has not been determined, we are unable to render judgment and this cause must be remanded. We are cognizant that neither appellant nor appel-lee has prayed for a remand. However, it is the duty of the appellate court to reverse and remand a cause when a fact issue necessary to a judgment is unresolved. Furthermore, the ends of justice would be better served by reversing and remanding the cause for new trial. National Life and Accident Insurance Co. v. Blagg, 438 S.W.2d 905, 909 (Tex.1969); London Terrace, Inc. v. McAlister, 142 Tex. 608, 180 S.W.2d 619, 620-21 (1944); Groves v. Hanks, 546 S.W.2d 638, 649-650 (Tex.Civ. App.—Corpus Christi 1976, writ ref’d n.r. e.).

The judgment of the trial court is reversed and the cause remanded for new trial not inconsistent with this opinion. Costs are taxed one-half to appellant and one-half to appellee.

TIJERINA, Justice,

dissenting.

I respectfully dissent.

The majority has concluded that Boze-man was the driver as a matter of law. Special Issue 14 was phrased as follows:

Was James C. Bozeman the driver of the van at the time of the collision in question?
Answer “Yes” or “no”.
Answer: NO

This was a defensive issue; the railroad had the burden of proving by a preponderance of the evidence that Bozeman was the driver. Allied Finance Co. v. Gammill, 440 S.W.2d 897, 900 (Tex.Civ.App.—Fort Worth 1969, writ ref’d n.r.e.). The jury had the opportunity to observe the witnesses and to weigh their testimony. The witness Blount testified that on the date of the accident a few minutes after five he was stopped by the driver of a van who asked for directions to the boat ramp. He said he saw a total of three (3) persons in the van. The following testimony is relevant to this question:

A: If you were shown pictures of all three of the men who were in the van, assuming that there were three men in the van, do you think it would be possible for you to pick out the man who was the driver?
A: No Sir. It would be highly unlikely.

The witness Blount said the nearest description he could give of the driver was that he had a full head of hair, a medium build, and a full face. This description fit Bozeman or Athey. He said he did not remember saying that the driver had facial hair but that he could have said so. The following colloquy is pertinent:

Q: Okay. Let me ask you to try to remember back as close to the accident as you can on whether — when you are talking about facial hair, are you talking about a beard, are you talking about a moustache or which?
A: Both.
Q: Both?
A: Yes, sir.
Q: Was it a full moustache or what or was it just like a two day growth?
A: I couldn’t even say he had a mous-tache for sure.

Rodriguez, the police officer, was asked on cross-examination if there was any doubt on his mind, based on his observations at the scene, that Bozeman was the driver. He replied: “To be honest with you, I can’t put him on the steering wheel.” He further stated that he could not be absolutely positive because Bozeman was not sitting in the driver’s seat behind the wheel and the van after impact tumbled two or three times. With reference to the police report, Rodriguez stated that he located and identified a body close to the driver’s position and wrote “Bozeman” as the driver. Counsel then inquired, “You are not telling this jury you know who was driving the van?” He answered, “No, sir.

When the party having the burden of proof appeals from an adverse fact finding in the trial court, the point of error should be that the matter was established as a matter of law or that the jury finding was against the great weight and preponderance of the evidence. Where there is some evidence which contradicts the assertion, the matter is not established conclusively. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). In the instant case, the railroad, the party with the burden of proving Bozeman as driver, failed to establish by a preponderance of the evidence that he was the driver. Their point of error on appeal was that the jury finding at issue was erroneous because the evidence establishes as a matter of law that Bozeman was the driver. The testimony of Blount and the police officer on cross-examination constituted some evidence that Bozeman was not the driver. A reasonable inference from this evidence would be that Athey was the driver. Athey had a full head of hair and otherwise fit the description of the driver as given by Blount; Athey was the only one of the three occupants who had a beard. The jury in the exercise of their prerogative apparently considered the engineer and the reconstruction specialist to be interested witnesses and disregarded their testimony. The railroad did not assert a great weight and preponderance point of error, so we are not concerned with the quantum of evidence required to make that determination.

The railroad relies on circumstantial evidence to establish their onerous burden of proving that Bozeman was the driver as a matter of law. Texas law requires that the circumstances relied upon must have probative force sufficient to constitute a basis of legal inference; it is not enough that they raise a mere surmise or suspicion of the existence of the fact or permit a purely speculative conclusion. Lumbermen’s Underwriting Alliance v. Bell, 594 S.W.2d 569, 571 (Tex.Civ.App.—Tyler 1980, writ ref’d n.r.e.). A fact finder has implied finding power and can make a reasonable inference from the direct or circumstantial evidence. Harrison v. Harrison, 597 S.W.2d 477, 481 (Tex.Civ.App.—Tyler 1980, writ ref’d n.r.e.). The review of this record clearly shows the existence of a genuine fact issue on this question and there is sufficient evidence to support the jury finding.

Special Issue 25, the percentage of negligence issue, was predicated on the jury finding more than one party negligent. The jury found that the railroad crossing was “extra-hazardous”, that the railroad was negligent for failure to have flashing signal lights at the crossing, and that such negligence was a proximate cause of the occurrence. With reference to Special Issue No. 2, the failure to have flashing signal lights, the jury found that such conduct on the part of the railroad constituted gross-negligence. The jury also found that the driver of the van was negligent in failing to keep a proper lookout, failing to properly apply his brakes, and failing to timely stop the van at the crossing. Such negligence was found to be a proximate cause of the collision. However, since the jury found that Bozeman was not the driver, he could not be guilty of negligence. Therefore, the only party subject to assessment of damages was the railroad. The supreme court in Cypress Creek Utility Service Co. v. Muller, 640 S.W.2d 860, 865 (Tex.1982), held: “The policy of the comparative negligence statute is to apportion all damages in relation to the percentage of fault found by the jury.” Accordingly, the judgment is correct in assessing all the damages against the railroad, the only party found negligent.

For the reasons indicated, I would affirm the judgment.

      . Southern Pacific and Reams also counterclaimed against the estate of Athey alleging that Athey was the driver of the van and sought contribution and/or indemnity on any judgment that might be rendered against them. This claim was severed by the trial court and is not subject to this appeal.

      . Engineer Reams is not involved in this appeal since the jury found no acts of negligence on his part.

      . TEX.REV.CIV.STAT.ANN. art. 4675, Title 77 (Vernon 1952), Injuries Resulting in Death, states, in part:
      “Actions for damages arising from death shall be for the sole and exclusive benefit of and may be brought by the surviving husband, wife, children, and parents of the person whose death has been caused or by either of them for the benefit of all ....”

      . Athey was not the natural father of Mrs. Ath-ey’s children and no recovery was allowed to the stepchildren.

      . TEX.REV.CIV.STAT.ANN. art. 2212a § 2 provides in pertinent part:
      (b) In a case in which there is more than one defendant, and the claimant’s negligence does not exceed the total negligence of all defendants, contribution to the damages awarded to the claimant shall be in proportion to the percentage of negligence attributable to each defendant.
      (c) Each defendant is jointly and severally liable for the entire amount of the judgment awarded the claimant, except the defendant whose negligence is less than that of the claimant is liable to the claimant only for that portion of the judgment which represents the percentage of negligence attributable to him.
      (d) If an alleged joint tort-feasor pays an amount to a claimant in settlement, but is never joined as a party defendant, or having been joined, is dismissed or nonsuited after settlement with the claimant (for which reason the existence and amount of his negligence are not submitted to the jury), each defendant is entitled to deduct from the amount for which he is liable to the claimant a percentage of the amount of the settlement based on the relationship the defendant's own negligence bears to the total negligence of all defendants.
      (e)If an alleged joint tort-feasor makes a settlement with a claimant but nevertheless is joined as a party defendant at the time of the submission of the case to the jury (so that the existence and amount of his negligence are submitted to the jury) and his percentage of negligence is found by the jury, the settlement is a complete release of the portion of the judgment attributable to the percentage of negligence found on the part of that joint tort-feasor.


author: JUNELL, Justice.

text:
    Justin Hughes ROBINSON, Appellant, v. STATE of Texas, Appellee.
    Nos. C14-84-284-CR, C14-84-285-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 7, 1985.
    Rehearing Denied Feb. 28, 1985.

      Frank Briscoe, Briscoe & Powell, Houston, for appellant.
    Calvin Hartmann, Asst. Dist. Atty., Houston, for appellee.
    Before JUNELL, ROBERTSON and CANNON, JJ.
   OPINION

JUNELL, Justice.

Appeals are taken from orders revoking probation. On November 10, 1982, appellant entered pleas of guilty to two separate charges that he possessed a controlled substance, cocaine. The court found him guilty and granted probationary sentences of ten years and two years. After a hearing on April 13, 1984, the court found that appellant had committed an offense against the laws of Louisiana and revoked probation in both cases.

Since most of the grounds of error concern in one way or another the wording of the motions to revoke probation, the language of the motions is quoted here:

The State would further show that the said Defendant did then and there violate terms and conditions of his probation by: committing an offense against the state of Louisiana: On or about December 23, 1983, in Caddo Parish, Louisiana, the Defendant did then and there unlawfully commit the offense of Attempting to obtain a controlled dangerous substance by fraud in that he violated R.S. 40:971B in that he did knowingly and intentionally on or about December 23, 1983 attempt to obtain a Schedule II controlled dangerous substance, to-wit: Percodan, Oxyco-done, by fraud, deceit, misrepresentation, subterfuge, and forgery, by forging the name of Dr. Mullen and giving a false name and address, to-wit: Pam Wilson, and uttering and presenting said false and forged prescription to Emily Gray, a registered pharmacist.

The Louisiana statute cited in the allegations provides in part that it shall be unlawful for any person knowingly or intentionally “to acquire or obtain possession of a controlled dangerous substance by misrepresentation, fraud, forgery, deception or subterfuge.” La.Rev.Stat.Ann. § 40:971(B)(l)(b) (West 1977).

In his first ground of error appellant contends that the state did not prove that appellant committed an offense in Louisiana because the state failed to offer into evidence any Louisiana law that makes it a crime to attempt to obtain a controlled dangerous substance through fraud or misrepresentation. The only statutes offered into evidence were Section 40.971, quoted above, and other Louisiana statutes containing the schedules of controlled dangerous substances.

The Court of Criminal Appeals has held that an appellate court need not look solely to the record for “evidence of statutory provisions in the law of a sister state.” Ex parte Mason, 656 S.W.2d 470, 471 (Tex. Crim.App.1983) (en banc). The Mason decision concerned an extradition proceeding. The Court of Criminal Appeals held that it was competent to ascertain whether a complaint was sufficient as a charging instrument under the laws of the sister state. Id. We see no reason why this appellate court reviewing an order revoking probation is any less competent to ascertain whether attempt to commit a crime is an offense against the laws of Louisiana.

Section 14:27(A) of the Louisiana statutes provides:

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended ...

La.Rev.Stat.Ann. § 14:27 (West 1974). Another statute sets out the penalty to be assessed when a defendant is convicted of attempt to commit an offense listed in the Controlled Dangerous Substances Act. See La.Rev.Stat.Ann. § 40:979 (West 1977). Attempting to obtain a controlled dangerous substance by fraud is an offense against the laws of Louisiana. The trial court committed no reversible error in so finding. The first ground of error is overruled.

In his second ground of error appellant complains that the motions to revoke probation were based on void orders setting conditions of probation because the conditions were amended in later orders. Appellant misreads the motions to revoke. The motions recite that the appellant was convicted on November 10, 1982, not that he violated conditions of probation imposed on that date. The appellant was fully informed as to which terms of probation he is alleged to have violated. Robinson v. State, 686 S.W.2d 326 (Tex.App.—Houston [14th Dist.] 1985). The second ground of error is overruled.

The third ground of error is related to the first. Appellant complains that the motions to revoke probation failed to give him adequate notice of what statutes he violated because no attempt statute was included in the allegation. We note that appellant did not complain of this allegedly inadequate notice in his written motions to quash. He did make vague objections to the adequacy of the motions when he objected to the state’s offer of certain Louisiana statutes not listed in the motion to revoke. (See discussion of ground of error seven).

Assuming that the ground of error is not waived, we hold that the notice in the motions was adequate. The motions clearly state that the offense alleged is attempt to obtain a controlled dangerous substance by fraud and give the date and location of the alleged offense. The fact that the state provided one citation to a specific statute but not others is insignificant. Ground of error three is overruled.

Appellant’s fourth and fifth grounds of error are related and will be discussed together. They concern the fact that the motions to revoke probation alleged that the prescription contained a forgery of the signature of “Dr. Mullen” when the prescription was actually signed “A.J. Mullen” with “M.D.” printed after the signature. Appellant’s fourth ground of error is that the motions to revoke probation were “faulty” because of the variance. The fifth ground of error is that the trial court should have excluded the prescription because of the variance.

A charging instrument alleging the offense of obtaining a controlled substance through fraud need not contain the purport and tenor clauses required in a forgery indictment. Ex parte Holbrook, 609 S.W.2d 541, 544 (Tex.Crim.App.1980) (en banc). “Since the tenor of the prescription is of no consequence in alleging the offense, we may regard it as surplusage which the State was not bound to prove.” Harrell v. State, 643 S.W.2d 686, 689 (Tex. Crim.App.1982). The fourth and fifth grounds of error are overruled.

In his sixth ground of error appellant contends that the trial court erred in admitting into evidence testimony that the alleged forged prescription was presented to a prescription clerk and not to the registered pharmacist Emily Gray, as alleged. The fact that the drug clerk acted as intermediary is of no legal significance. Harrell v. State. Id. at 689. Ground of error six is overruled.

In his seventh ground of error appellant argues that the trial court should not have admitted into evidence Louisiana statutes not specifically listed in the motions to revoke probation. He claims the trial court’s actions in effect permitted revocation of probation on the finding of a violation of law other than those included within the allegations in the motion to revoke. The statutes admitted were relevant and necessary to establish that the prescription presented by appellant was for a controlled dangerous substance. The state was not required to list in its motions to revoke each and every Louisiana statute involved in proving the offense. Ground of error seven is overruled.

In his last ground of error the appellant complains that the trial court failed to provide findings of fact and conclusions of law in response to appellant’s written and filed requests. The orders revoking probation contain findings and conclusions adequate to explain to appellant why his probation was revoked. The last ground of error is overruled.

Finding no abuse of discretion, the orders revoking probation are affirmed.


author: SEARS, Justice.

text:
    Hampton Carroll ROBINSON III, Appellant, v. The STATE of Texas, Appellee.
    Nos. C14-84-383CR, A14-84-384CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 3, 1985.
    Rehearing Denied Jan. 31, 1985.

      Frank Briscoe, Houston, for appellant.
    Karen Zellars, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

SEARS, Justice.

These are appeals from orders revoking probation.

The appellant alleges in six grounds of error that the trial court abused its discretion in revoking his probation based on evidence that he violated terms as set forth in the amended Conditions of Probation. He also challenges the sufficiency of evidence to support revocation and alleges the trial court erred in failing to make Findings of Fact and Conclusions of Law as requested. We find no error and affirm.

The appellant pled guilty on January 10, 1984, to two indictments charging him with possession of a controlled substance. The trial court assessed punishment at ten years’ confinement in the Texas Department of Corrections. The imposition of sentence was suspended and appellant was placed on ten years’ probation with a $1,000 fine. The terms of probation were amended on February 7, 1984, and again on March 9, 1984. Both amendments bear appellant’s signature. The March 9, 1984, terms, among others, required appellant to:

1) commit no offense against the laws of the states;
2) report to the Harris County Adult Probation Department on March 15, 1984, and thereafter to his probation officer twice a month;
3) remain within Harris County; and
4) pay a $15.00 supervisory fee to the Harris County Adult Probation Department monthly beginning April 9, 1984.

The state filed a Motion to Revoke Probation on April 12, 1984, and a First Amended Motion to Revoke Probation on May 22, 1984. The amended motion alleged the appellant violated all four conditions listed above. However, the state dropped the first allegation and presented evidence of violation of conditions two through four. The trial court revoked appellant’s probation on grounds that he failed to report to the probation officer on March 15, 1984, failed to remain within Harris County, and failed to pay the supervisory fee.

The central issue on appeal is whether the appellant received proper notice as to which order he is alleged to have violated. The appellant argues (1) that the state’s First Amended Motion to Revoke Probation does not identify the March 9,1984, amended order as the one whose terms he violated, and therefore only the original order and its terms can serve as the basis for revocation; and (2) since the original order does not contain the requirements that appellant report to the probation officer on March 15, 1984, and pay a monthly supervisory fee, there is an inherent inconsistency, and therefore, appellant has no notice of which order he is alleged to have violated. This argument is persuasive but is unsupported.

The court having jurisdiction of the case may alter or modify the conditions of probation at any time, provided the probationer is supplied a copy of the terms. TEX.CODE CRIM.PROC.ANN. art. 42.12 § 6 (Vernon Supp.1984). An order revoking probation must be based on a condition as modified. Grommes v. State, 589 S.W.2d 461 (Tex.Crim.App.1979). The motion to revoke must fully inform the probationer of the violation of the terms which he is alleged to have breached. Caddell v. State, 605 S.W.2d 275 (Tex.Crim.App.1980).

Contrary to the appellant’s interpretation, the motion’s reference to January 10, 1984, is to the date of conviction, not the date of the Conditions of Probation. The record reflects that while the First Amended Motion to Revoke Probation does not identify per se the order on which the motion is based, it does list the terms alleged to have been violated. The last amended Conditions of Probation filed on March 9, 1984, clearly lists the terms relied upon in the Motion to Revoke Probation. The record reflects that the appellant signed this order and received a copy of the amended terms and conditions as required under art. 42.12. Burgess v. State, 628 S.W.2d 116 (Tex.App.—Beaumont 1981, no pet.), cited by appellant, is distinguishable. In Burgess the Motion to Revoke Probation alleged the probationer failed to remain in Jefferson County, a condition of the original order but not the amended order, the amended order requiring the probationer to remain in Georgia. The court held that revocation could not be based on proof that the probationer failed to remain in either Jefferson County or Georgia because the amended orders did not require the probationer to remain in Jefferson County, and the Motion to Revoke did not allege he failed to remain in Georgia. Thus probation may not be revoked upon a finding of a violation of a condition of probation except as alleged in the Motion to Revoke. Id. at 118. Here the state alleged and proved violations of the terms in the amended order.

While we acknowledge the strict pleading notice requirements in other proceedings which seek to divest an individual of freedom, e.g. commitment on contempt orders, there is no requirement that a Motion to Revoke Probation specify which order has been violated as long as the probationer is fully informed as to which terms of probation he is alleged to have violated. The appellant clearly had this notice. Appellant’s first three grounds of error are overruled.

Appellant argues in his sixth ground of error that the trial court erred in failing to make specific Findings of Fact and Conclusions of Law as requested. The record reflects that the trial court made findings at the Hearing on Motion to Revoke Probation which were sufficient to inform the appellant as to the grounds for revocation. See Ford v. State, 488 S.W.2d 793 (Tex.Crim.App.1972). The sixth ground of error is overruled.

It is undisputed that the appellant failed to report to the probation officer on March 15, 1984, and to pay the monthly $15.00 supervisory fee. It is unnecessary to consider appellant’s remaining grounds of error since proof of any single alleged violation of a condition of probation is sufficient to support revocation. Moore v. State, 605 S.W.2d 924 (Tex.Crim.App.1980).

The appellant’s grounds of error are overruled and the revocation of probation is affirmed.


author: BUTTS, Justice.

text:
    Edward Anthony ELLIS, Appellant, v. The STATE of Texas, Appellee.
    No. 04-84-00063-CR.
    Court of Appeals of Texas, San Antonio.
    Feb. 13, 1985.
    Richard Langlois, San Antonio, for appellant.
    Sam Milsap, Jr., Mike Granado, Edward F. Shaughnessy, III, San Antonio, for ap-pellee.
    Before CADENA, C.J., and ESQUIVEL and BUTTS, JJ.
   OPINION

BUTTS, Justice.

After a plea of guilty which was the result of a plea bargain, the trial court assessed punishment at fifteen years imprisonment. The offense is attempted burglary of a habitation. TEX.PENAL CODE ANN. § 30.02(a)(1) (Vernon 1974) and § 15.01 (Vernon Supp.1985). Appellant pled “true” to the enhancement allegations. Pursuant to TEX.CODE CRIM.PROC. ANN. art. 44.02 (Vernon 1979) appellant now appeals from the denial of his motion to suppress evidence. His sole ground of error is that the trial court should have suppressed the evidence of a screwdriver recovered by police officers from the locked trunk of the vehicle driven by appellant.

There is no challenge to the sufficiency of the evidence. The record shows that on February 23, 1983, at approximately 10:50 a.m., Lieutenant John Schlinger of the Castle Hills Police Department, while patrolling, observed an automobile exiting a driveway of a residence. His observation was that the car was being driven erratically, as if the driver were not familiar with the driveway since he drove over grass and curbing. Schlinger passed the car as it went toward Blanco Road away from the residential area. He recorded the license number and noted the occupants. Approaching the house from which the car had sped, he heard the sound of a burglar alarm and immediately turned around and pursued the fleeing automobile. He overtook it a few blocks south on Blanco Road, alerting another officer on the radio to go to the house. A third officer arrived to assist him. The second officer notified him there was evidence of an attempted burglary, citing a broken window and several pry marks. In the meantime, Schlinger had ordered the two occupants of the automobile to exit for identification purposes. Upon learning of the pry marks and broken window, he placed the appellant and his co-defendant under arrest, the “Miranda ” warning being given at that time. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The Chief of the Castle Hills Police Department drove the automobile to headquarters. There, a search of the automobile, including the locked trunk, was conducted. Items recovered were a tire tool found under the driver’s seat, some glass particles on the floor, and a screwdriver in the trunk. Appellant gave a written confession.

A combined motion to suppress evidence and Jackson v. Denno (confession) hearing was conducted. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). It is noteworthy that the screwdriver was never admitted into evidence at that hearing. However the findings of fact and conclusions on the voluntariness of confession hearing reflect the following:

5. The confession is admissible in evidence both as a factual matter and as a matter of law.

In answer to appellant’s argument that the search which yielded the screwdriver violated the Fourth Amendment to the United States Constitution and Article I, section 9 of the Texas Constitution, the State characterizes the search as an inventory search. See South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

We find we need not address the question of reasonableness of the search and suppression of the evidence. At the plea hearing the trial judge carefully admonished appellant. Further the judge read the attempted burglary charge of the indictment and asked appellant how he pled, to which he responded, “Guilty.” In addition appellant agreed “to allow the court to base its finding on evidence offered in the hearing on the Motion to Suppress Evidence and Motion to Suppress Confession. ..”

No evidence seized, including the screwdriver retrieved from the trunk, was introduced nor was any used to support appellant’s conviction. We note that only the extrajudicial confession was admitted into evidence at the pretrial hearing. No failure to comply with the requirements of TEX.CODE CRIM.PROC.ANN. art. 1.15 (Vernon 1977) is shown. If the guilty plea is supported by evidence independently of the matter contested in the pretrial motion, here the screwdriver, then any erroneous ruling on that motion does not vitiate the conviction. Ferguson v. State, 571 S.W.2d 908, 910 (Tex.Crim.App.1978).

The record not reflecting that any evidence obtained as a result of the alleged illegal search was introduced in evidence during the plea hearing, error is not shown and nothing is presented for review in that respect. Prochaska v. State, 587 S.W.2d 726, 728 (Tex.Crim.App.1979); Stiggers v. State, 506 S.W.2d 609, 611 (Tex.Crim.App. 1974).

The ground of error is overruled, and the judgment of conviction is affirmed.

      . The State did not urge lack of standing by the appellant to complain of the evidence obtained from the automobile driven by him but owned by his brother. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Nor was ownership of the screwdriver ascribed to appellant.


author: QUENTIN KEITH, Justice

text:
    Lawrence Scott GRIFFITH, Appellant, v. The STATE of Texas, Appellee.
    No. 01-83-0479-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 14, 1985.
    Larry Urquhart, Brenham, for appellant.
    John B. Holmes, Jr., Dist. Atty., Timothy G. Taft, Asst. Dist. Atty., Houston, for appellee.
    Before BASS and COHEN, JJ., and QUENTIN KEITH, J. (Retired).
   ORDER DISMISSING APPEAL

QUENTIN KEITH, Justice

(Retired).

The appellant was charged with capital murder in the death of Sarah Reese during the robbery of Jonelle Callaway. After finding him guilty, the jury was unable to reach a verdict on the second special issue regarding punishment, Tex.Code Crim.P. Ann. art. 37.071(b)(2) (Vernon 1981), and the court assessed punishment at life imprisonment. Id. at (e).

The ninth ground asserts that the trial court erred in giving a “dynamite” charge over his objection. Testimony at the guilt/innocence stage of appellant’s trial began at approximately 10:30 a.m. on June 13, 1983, and concluded at approximately noon on June 16. The total time for presentation of evidence was approximately 22 and one-half hours. The jury began its deliberations at 5:06 p.m. on June 16. At 11:00 a.m. June 17, after six and one-half hours of deliberation, it sent out a note stating that it was deadlocked. Appellant’s request for a mistrial was denied. The jury was returned to the courtroom and was given the following charge:

Members of the jury, in response to your comment regarding your inability to reach a verdict, I will instruct you to follow the oath that you took, that you and each of you solemnly swear that in the case of the State of Texas v. Lawrence Scott Griffith, you will a true verdict render according to the law and the evidence so help you God. It would be necessary for the court to declare a mistrial if the jury found itself unable to arrive at a unanimous verdict after a reasonable length of time. The indictment will still be pending, and it’s reasonable to assume the case will be tried again, the same questions to be determined by another jury and with no reason to hope such other jury would find the questions any easier to decide.
The length of time that the jury will be required to deliberate is within the discretion of the court, and the court does not at the present time feel the jury has deliberated a sufficient length of time to fully eliminate the possibility of its being able to arrive at a verdict.
You are to continue to deliberate in this case, (emphasis added)

The appellant objected to this instruction on the ground that it was coercive. The jury retired for further deliberation, and at 5:00 p.m. it sent the court a second deadlock note, causing the appellant to move for a mistrial again. No further charge was given. At 9:30 p.m., the appellant moved for a mistrial a third time. Jury deliberations were recessed at 10:00 p.m. The jury reconvened at 8:20 a.m. the following day and returned a verdict of guilty at 11:15 a.m.

The type of instruction given in this cause, known as a “dynamite” charge because of its ability to remove obstacles to the return of a unanimous verdict, is also called an “Allen” charge after the case Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Allen has been cited as authority on this subject for almost a century. It is enlightening to examine the instruction approved in Allen and see how very different it is and how much more protective of the parties it is than the “Allen ” charge given in the instant case. The instruction in Allen v. United States informed the jury that:

in a large proportion of cases absolute certainty could not be expected; that although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the questions submitted with candor and with proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other’s arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority.

164 U.S. at 501, 17 S.Ct. at 157. This charge, although encouraging further deliberations, could not be misconstrued as a criticism of a juror’s steadfast adherence to his own judgment, for it explicitly stated that no juror should change his vote in mere acquiescence to the opinion of his fellow jurors.

The charge in the instant case stands in marked contrast to the instruction in Allen v. United States. The admonishment to “follow the oath that you took” implies that the failure to reach a unanimous verdict either results from or constitutes a violation of the juror’s oath. Texas jurors swear to render a true verdict, not a unanimous verdict. Tex.Code Crim.P.Ann. art. 35.22 (Vernon 1966). Disagreement among jurors is no evidence that any juror is violating his oath. On the contrary, it is at least as probable that such disagreement is evidence that the oath is being conscientiously followed. Instructing a deadlocked jury to follow its oath creates a significant risk that jurors will interpret the comment as criticism of the position taken by the minority. This danger is increased when, as in the instant case, the charge contains no cautionary instructions like those given in Love v. State, 627 S.W.2d 457 (Tex.App.—Houston [1st Dist.] 1981, no pet.), in which the judge told the jury:

I don’t mean to say that any individual man or woman on the jury should yield his or her conscience and positive conviction _ He or she should not surrender any conscientious views founded upon the evidence unless convinced by his or her fellow jurors of his or her error.

Id. at 459. Such instructions clearly reduce the charge’s coercive potential. This court has previously observed that a similar instruction went further than Allen charges approved in other reported cases. Simpson v. State, 668 S.W.2d 915, 919 (Tex.App.—Houston [1st Dist.] 1984, no pet.).

We find that the trial court erred in admonishing the jurors to follow their oaths without further instructing them that it was proper for them to steadfastly adhere to their individual convictions.

We conclude, however, that the error was harmless. Nothing in the record indicates that any juror was coerced by the instruction given. No affidavits or testimony to that effect were produced at a hearing on a motion for new trial or at any other time. Such evidence was admitted at the motion for new trial hearing in Golden v. State, 89 Tex.Cr.R. 525, 232 S.W. 813 (1921), and influenced the court to hold that the instruction in that case was harmful. The record before us, however, reflects the absence of any coercive effect. The jury in the case at bar deliberated for 13 hours after the instruction was given and during that time sent out a second note stating that they were deadlocked. The jury was obviously not stampeded to a quick verdict by the instruction. This is not a case like Golden, where the jury deliberated for 42 hours in a case where the evidence was “short and clear,” and then suddenly returned a unanimous verdict five minutes after the coercive instruction was given. The Court of Criminal Appeals pointedly observed, “It thus appears that what the court said to the jury accomplished what forty-two hours of their deliberation had failed to bring about.” Golden, 89 Tex. Cr.R. at 527, 232 S.W. at 814; see also Arrevalo v. State, 489 S.W.2d 569 (Tex. Crim.App.1973).

We need not rule, however, on this or any other ground of error because we have received from the State’s Attorney a motion to dismiss and a sworn report from the Bexar County Sheriff that the appellant, after giving notice of appeal in this case, escaped from custody in November of 1984, and has not been recaptured or voluntarily surrendered within thirty days after his escape. These circumstances terminate our jurisdiction. Tex.Code Crim.P.Ann. Arts. 44.09, 44.10 (Vernon Supp.1984). The State’s motion is granted.

The cause is dismissed for lack of jurisdiction.

      . The case of Alexander Allen was extraordinary. Allen, a 14-year-old Black, was tried three times for the murder of an 18-year-old White male. The case was tried in the United States Court for the Western District of Arkansas, apparently because the crime took place in the "Cherokee Nation of the Indian Territory.” 164 U.S. at 494, 17 S.Ct. at 154. All three juries rejected Allen’s claim of self-defense, and he was sentenced to death in at least two of the trials. The first conviction was reversed by the Supreme Court in Allen v. United States, 150 U.S. 551, 14 S.Ct. 196, 37 L.Ed. 1179 (1893). The second conviction was reversed in Allen v. United States, 157 U.S. 675, 15 S.Ct. 720, 39 L.Ed. 854 (1895). The third conviction was affirmed in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), from which comes the Allen charge. Allen apparently had no counsel in either the second or third appeal to the United States Supreme Court. 157 U.S. at 678, 15 S.Ct. at 720; 164 U.S. at 493, 17 S.Ct. at 154. Allen’s first and second convictions were reversed because of jury instructions which erroneously limited his right to self-defense. The third Supreme Court decision in Allen’s case, in addition to upholding the "Allen” charge, approved an instruction stating that a defendant is presumed to intend the natural and probable consequences of his own act. 164 U.S. at 496, 17 S.Ct. at 155. This proposition of law was overruled 83 years later in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 245, 61 L.Ed.2d 39 (1979).

      . Both the state and the defendant are protected by a neutral instruction since the party having the minority vote in a deadlocked jury will vary from case to case.