text:
    Jerry Lee BRINKLEY, Sr., Appellant, v. John ALMOND, Individually, and d/b/a John Almond Ranch, Appellee.
    No. 04-83-00262-CV.
    Court of Appeals of Texas, San Antonio.
    Jan. 31, 1985.

      Thomas S. Turner, III, Alice, for appellant.
    Parker Ellzey, Alice, for appellee.
    Before CADENA, C.J., and REEVES and TIJERINA, JJ.
   OPINION

TIJERINA, Justice.

This is an appeal from a summary judgment rendered in a law suit involving appellant’s claim for damages resulting from personal injuries allegedly sustained while doing work for appellee. Appellee filed a motion for summary judgment asserting that appellant was an independent contractor and that under the pleadings, depositions, answers to interrogatories, admissions and affidavits of record, they were entitled to judgment as a matter of law.

The summary judgment evidence establishes that appellant, prior to the occurrence in question, did electrical work for appellee on the same job location. He used a ladder to get to the top of the pole. After the repairs were completed he advised appellee that the wiring needed to be replaced and appellee authorized appellant to do the necessary electrical work when he had time. At a later date appellant and two employees arrived at the job site to replace the wiring. Appellant decided to climb the pole saying he had experience in pole climbing and that he could tell whether a pole was hollow or solid by hitting it with a hammer. Appellant did test the pole by hitting it with the hammer and then he and his co-workers shook the pole hard. Appellant, believing it was solid, climbed the pole. He cut some of the wires whereupon the pole fell and as a result he sustained several injuries.

Appellant in his sole point of error contends that the trial court committed reversible error in granting the motion for summary judgment. He argues that: (1) appellant was an invitee and that as such, appel-lee owed a duty to exercise reasonable care in providing for appellant’s safety; (2) ap-pellee’s failure to inspect the condition of the pole or to advise appellant that he did not know the condition of the pole was a breach of duty owed appellant; and (3) this constituted negligence and was the proximate cause of the injuries and damages sustained by appellant.

An appellate court, in reviewing a summary judgment record, is bound by the rules prescribed by the supreme court in Wilcox v. St. Mary’s University of San Antonio, 531 S.W.2d 589, 592-93 (Tex.1975) which provides:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. (Citation omitted.)
2. In deciding whether or not there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant ... will be taken as true. (Citations omitted.)
3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in their favor. (Citations omitted.)

See also City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979) and TEX.R.CIV.P. 166-A (Vernon Supp.1982-83). In summary judgment proceedings the trial is conducted on independently produced proofs, such as admissions, affidavits and depositions. Hidalgo v. Surety Savings & Loan Association, 462 S.W.2d 540, 545 (Tex.1971). The pleadings do not constitute summary judgment proof. City of Houston v. Clear Creek Basin Authority, supra at 678. Also see Hittner, Summary Judgment in Texas, 43 TEX.B.J. 11 (January 1980).

The status of an independent contractor is determined by the following, viz: (1) the independent nature of his business; (2) his obligation to furnish tools, supplies and materials to perform the job; (3) his right to control the progress of the work, except as to the final results; (4) the time for which he is employed; and (5) the method of payment, whether by time or by job. See Texas Employers Association v. Bewley, 560 S.W.2d 147, 149 (Tex.Civ.App.—Houston [1st Dist.] 1978, no writ). But, where there is no dispute about the controlling facts and there is only one reasonable conclusion determining whether the worker is an employee or an independent contractor, then the question of the worker’s status is one of law. Grimes v. Jalco, Inc., 630 S.W.2d 282, 285 (Tex.App.—Houston [1st Dist.] 1981, writ ref d n.r.e.). In the instant case there is no dispute that appellant was, on the occasion in question, an independent contractor.

The fact remains that appellant was an invitee and thus, we consider the duty which a possessor of land owes to invitees as summarized in Restatement (Second) of Torts § 353 (1965):

§ 343. Dangerous Conditions Known to or Discoverable by Possessor
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
The occupier is under the further duty to exercise reasonable care in inspecting the premises to discover any latent defects and to make safe any defects or to give an adequate warning. Restatement (Second) of Torts § 343, Comment b (1965).

Also see Guidry v. Neckes Butane Products Co., 476 S.W.2d 666, 669 (Tex.1972). The landowner owes a duty to exercise ordinary care to warn the invitee of any dangerous conditions which the occupier knows or should know about and which are not reasonably apparent to the invitee. Sun Oil Co. v. Massey, 594 S.W.2d 125, 129 (Tex.Civ.App.—Houston [1st Dist.] 1979, writ ref’d n.r.e.). Justice Pope addressed this question in Camp v. J.H. Kirkpatrick Co., 250 S.W.2d 413, 416 (Tex.Civ.App.—San Antonio 1952, writ ref’d n.r.e.), stating:

A more correct statement of an owner’s duty would be that he is under a duty to use reasonable care to make and keep the premises free from danger to invitees when the danger is known or should be known by the proprietor.

Appellee cites Kansas City Southern Railroad Co. v. Guillory, 376 S.W.2d 72, 76 (Tex.Civ.App.—Beaumont 1964, writ ref’d n.r.e.) in support of his contention that a landowner is not liable for defects that could not have been discovered by inspection. The court stated:

The inviter has a duty to exercise reasonable care to discover defects or dangerous conditions on the premises; he will be charged with knowledge of, and he will be held liable for injuries resulting from, any dangerous condition which he could have discovered in the exercise of ordinary care, but he will not be held liable for defects which would not have been disclosed by a reasonably careful inspection, even though no such inspection has been made. [Emphasis added.]

In the case at bar, appellant had superior knowledge of the job-site and the pole in question. On his first repair job at the ranch he used a ladder to climb the pole. On the date of the accident, he struck the pole with a hammer, and thereafter, he and his two workers shook the pole in order to determine if the pole was solid. He then climbed the pole and after cutting some wires, the pole fell causing the injuries sustained. Appellant argues that the pole fell because it was rotten just below the surface of the ground.

While it is apparent that appellee made no inspection of the pole, the record reflects that a reasonable inspection would not have disclosed the latent defect. Appellant testified that the only way to determine whether the pole was rotten would be to dig a three to five foot hole; he admitted that he himself did not dig a hole. Therefore, there is no general issue of material fact; appellant’s sole ground of error is overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: TIJERINA, Justice.

license: Public Domain

text:
    Harvey VILLARREAL, Appellant, v. STATE of Texas, Appellee.
    No. 04-83-00265-CR.
    Court of Appeals of Texas, San Antonio.
    Feb. 6, 1985.

      Andrew Carruthers, San Antonio, for appellant.
    Sam Millsap, Jr., Linda C. Anderson, San Antonio, for appellee.
    Before CADENA, C.J., and REEVES and TIJERINA, JJ.
   OPINION

TIJERINA, Justice.

This is an appeal from a conviction for murder. TEX.PENAL CODE ANN. § 19.-02(a)(1) (Vernon 1974). The jury found appellant guilty as charged; the trial court assessed punishment at confinement for life.

Appellant complains that the trial court committed reversible error by failing to submit to the jury the question of whether State witness Mettie Ann Dickey was an accomplice witness as a matter of fact and as a matter of law. His challenge to the sufficiency of the evidence is predicated on his assertion that Mettie Ann was an accomplice witness and that there was no corroborating evidence.

Under Texas law, a conviction cannot be sustained upon the uncorroborated testimony of an accomplice. TEX. CODE CRIM.PROC.ANN. art. 38.14 (Vernon 1979); see Walker v. State, 615 S.W.2d 728, 731 (Tex.Crim.App.1981). An accomplice witness is someone who has participated with another before, during, and after the commission of a crime. Villarreal v. State, 576 S.W.2d 51, 56 (Tex.Crim.App.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 176, 62 L.Ed.2d 114 (1979). However, a person is not an “accomplice witness” if he cannot be prosecuted for the same offense with which defendant on trial is charged, nor is he an accomplice witness because he knew of the crime but failed to report it or even concealed it. Carrillo v. State, 591 S.W.2d 876, 882 (Tex.Crim.App.1979).

TEX.PENAL CODE ANN. § 8.07 (Vernon Supp.1985) provides that a person may not be prosecuted or convicted for any act committed when younger than fifteen years of age, except perjury and motor vehicle offenses. Assuming, arguendo, that Mettie Ann was directly involved in the murder of her grandmother, she cannot be prosecuted for the reason that she was eleven years of age at the time of the commission of the offense. In Komurke v. State, 562 S.W.2d 230, 234 (Tex.Crim.App.1978), overruled on other grounds, Cooper v. State, 631 S.W.2d 508 (Tex.Crim.App.1982), the Court of Criminal Appeals held that a person too young to be criminally responsible was not an accomplice witness as a matter of law or fact; thus, no corroboration of the testimony was required. This ruling remains undisturbed. Accordingly, Mettie Ann is not an accomplice witness and her testimony requires no corroboration.

The witness Lopez testified, without objection, that appellant told him that he kicked and stabbed the victim. Mettie Ann testified she saw appellant strike the victim with his fists and take a knife from his pocket and stab her. She stated that both men had the victim on the floor and were beating on her. The knife found in appellant’s possession was connected to the offense. The medical examiner gave the cause of death as multiple injuries which included strangulation and a stab wound to the chest.

Appellant testified denying he participated in the assault and murder of the victim. His explanation of his possession of the knife was that he took it away from Barajas to stop the assault on the victim. It is the province of the jury to judge the credibility of the witnesses and the weight to be given their testimony and it may resolve or reconcile conflicts in the testimony, accepting or rejecting such portions thereof as it sees fit. Banks v. State, 510 S.W.2d 592, 595 (Tex.Crim.App.1974). Having reviewed the evidence in the light most favorable to the prosecution, we conclude that the trier of fact rationally found the essential elements of the offense beyond a reasonable doubt. Girard v. State, 631 S.W.2d 162, 163 (Tex.Crim.App.1982). Grounds of error one, two, and three are overruled.

In his next assignment of error, appellant complains that the trial court erred in not granting his motion to suppress the evidence seized from the victim’s house. The officers, responding to an anonymous report of a homicide, arrived at the victim’s house without a search warrant. Upon arrival, they observed blood stains on the porch and the front door standing open. They entered the house and discovered the body. A mobile crime laboratory unit arrived at the scene of the murder and the officer made a search of the premises, taking blood samples, fingerprints, and other items. Part of the blade of a knife was removed from the body of the deceased. Appellant was not on the premises during the investigation.

Appellant relies on Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), where the Supreme Court refused to consider a murder scene exception to the warrant requirement for a search of a house. In Mincey the search of the premises lasted four days, every item in the apartment was closely examined and inventoried, over two hundred objects were seized, and it was the defendant’s house that was searched. In the instant case, however, the investigation lasted seven hours, only a limited number of items were taken, and the house was the victim’s place of residence. The relevant evidence seized that may have contributed to the guilty verdict against appellant were blood samples and fingerprints. Justice Rehnquist, in his concurring opinion in Mincey, supra, suggested that “some evidence — for example, blood on the floor — required immediate examination.” Therefore, the risk that evidence will be lost is an emergency that would justify a warrant-less search of a house. Dombrowski v. Cady, 471 F.2d 280 (7th Cir.1972), rev’d on other grounds, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); Hunter v. State, 496 S.W.2d 44, 45 (Tex.Crim.App.1973). W. LaFave, Search and Seizure § 6.5, at 461 (1978), details the effects and concerns of Mincey, supra, and in relevant part recites, viz:

The cases have also implied that it is of some significance that the deceased also occupied the premises in question. Although no court has put it in these terms, it is almost as if there was an implied consent-in-advance by the deceased to enter the premises to investigate in the event of his death, corresponding to the consent which could be expected if the victim were only injured, so that even if the co-occupant is the prime suspect he may not by virtue of the death suddenly claim exclusive possession. As one court put it: ‘The need for all citizens and particularly potential victims such as this to effective protection from crime, particularly while in their own home, would indicate that a warrantless search of the premises is not made unreasonable or unconstitutional by the fact that the defendant exercise joint control of the premises.’ [Citations omitted.]

It appears that the initial entry was lawful and based on probable cause. The officers had the information given by the anonymous caller and upon arrival saw blood stains on the porch and the open door. Once the body was discovered the officers were confronted with the emergency of preserving such evidence as blood samples and fingerprints. See Hooper v. State, 516 S.W.2d 941, 943 (Tex.Crim.App.1974). If the items seized constitute evidence of a nonpossessory crime, the burden is on the defendant to establish his standing, i.e., that he had a legitimate expectation of privacy in the thing seized or the place searched. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). In this case the location searched was the residence of the murder victim. Appellant had been allowed to stay at the house for two weeks without paying rent. He was sleeping in the living room. The record suggests that decedent was victimized by Ba-rajas and appellant. The deceased was led to believe that Barajas was a preacher. Barajas performed a purported wedding ceremony between himself and the victim, who was thirty-eight years his senior. The evidence discloses that appellant and Bara-jas were demanding money from the victim at the time of the homicide. Appellant was unable to show a reasonable expectation of privacy, for he certainly does not have a possessory interest in the items seized such as the ceramic owl, a bedsheet, a dress, and the alleged marriage certificate. See Goehring v. State, 627 S.W.2d 159, 165 (Tex.Crim.App.1982), where the court in reviewing the question on standing noted that appellant had not shown he had authority to exclude others from the premises.

The most incriminating evidence against appellant was the murder weapon, a knife, found in his possession. A part of the knife was removed from the victim’s body. Appellant disclaimed ownership and testified that the knife belonged to Barajas. Therefore, we conclude that appellant has not shown a reasonable expectation of privacy to the premises searched or the relevant evidence seized. Ground of error four is overruled.

Lastly, appellant contends that the trial court erroneously failed to apply the law to the facts on the question involving the search and seizure of evidence. He dictated to the record a general objection and special requested charge pursuant to TEX.CODE CRIM.PROC.ANN. art. 38.23 (Vernon 1979), which provides in pertinent part, viz:

No evidence obtained by any officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this article, then and in such event, the jury shall disregard any such evidence so obtained.

Texas courts have uniformly held that the question of whether probable cause exists for a warrantless search is solely a question of law for determination by the court. Marrs v. State, 647 S.W.2d 286, 289 (Tex.Crim.App.1983); Boles v. State, 137 Tex.Crim.R. 521, 132 S.W.2d 881, 882-83 (Tex.Crim.App.1939); Lee v. State, 126 Tex.Cr.R. 18, 70 S.W.2d 185, 187 (Tex.Crim.App.1934); Ballestero v. State, 640 S.W.2d 423, 427 (Tex.App.—San Antonio 1982). However, when the facts alleged to constitute probable cause are controverted, the defendant has the statutory right to have the jury charged on this issue. Jordan v. State, 562 S.W.2d 472, 473 (Tex.Crim.App. 1978).

The facts concerning the entry into the house and subsequent search are undisputed. The officers responding to an anonymous report of a homicide arrived at the victim’s house and before entry observed blood on the porch and an open front door. There only remains the legal question of whether the officer had probable cause to search and seize the evidence. Where the facts and circumstances show that probable cause exists as a matter of law, a jury charge under article 38.23, supra, is not required. See Davis v. State, 474 S.W.2d 466, 469 (Tex.Crim.App.1971). Appellant denied that he attacked the victim and in effect denied ownership of the items seized, such as the knife, the ceramic owl with blood stains, and the ligature. Thus, we are of the opinion that no fact question existed as to the legality of the search and seizure of evidence. The fifth ground of error is overruled.

The judgment is affirmed.


author: CARROLL, Justice.

text:
    The CITY OF AUSTIN, Appellant, v. The AVENUE CORPORATION, Appellee.
    No. 14280.
    Court of Appeals of Texas, Austin.
    Feb. 6, 1985.
    Rehearing Denied Feb. 27, 1985.

      Mary A. Keeney, John F. Morehead, Daugherty, Kuperman, Golden & More-head, Austin, for appellant.
    Susan Vincent McClish, John McClish, Roberts, Womack, Weldon & McClish, Austin, for appellee.
    Before POWERS, GAMMAGE and CARROLL, JJ.
   CARROLL, Justice.

The City of Austin appeals from the judgment of the trial court awarding appel-lee, The Avenue Corporation, $82,660.00 as damages in an inverse condemnation cause of action. We will affirm the judgment of the trial court.

During 1982 and continuing through a part of 1983, the City of Austin undertook the Congress Avenue Reconstruction project, which involved the upgrading of street and sidewalk conditions along the length of Congress Avenue in downtown Austin. During a nine and one-half month period from October 17, 1982, through July 31, 1983, The Avenue Corporation claimed that the construction project substantially affected its restaurant business. Thereafter, The Avenue Corporation brought suit to recover lost profits due to alleged inverse condemnation resulting from the construction work done in front of its restaurant business located on Congress Avenue.

The Avenue Corporation sought recovery based on a claimed material and substantial impairment of its right of access as a result of the construction work. This claim was based on temporary impairment of access only, as no claims were made of any permanent taking of property, or of any permanent impairment of access to the business. The City of Austin defended, contesting the extent of the impairment of access, as well as the evidence supporting lost profits.

The trial court found that there had been an inverse condemnation as a matter of law, and submitted a special issue to the jury inquiring as to the extent of damages, if any, resulting from the inverse condemnation. The jury awarded the plaintiff damages in the amount of $82,660.00 as lost profits.

The City of Austin complains in its first and second points of error that the trial court erred in its apparent finding of material and substantial impairment of access to the plaintiff’s place of business, resulting in an inverse condemnation of The Avenue Corporation’s property as a matter of law. According to the City, although access to the property was somewhat restricted by the construction, such restriction did not constitute inverse condemnation.

Inverse condemnation is an indirect governmental taking of one’s property, although the governmental entity’s eminent domain power has not been exercised. Hubler v. City of Corpus Christi, 564 S.W.2d 816 (Tex.Civ.App.1978, writ ref’d n.r.e.). A direct physical invasion of property is not required under the provisions of the Texas Constitution dealing with eminent domain. Rather, dimunition in value of property resulting from loss of access may constitute damage within the relevant constitutional provisions so that no person’s property shall be taken, damaged, destroyed, or applied to public use without adequate compensation. Tex. Const.Ann. art. I, § 17 (1955); Dupuy v. City of Waco, 396 S.W.2d 103 (Tex.1965).

Whether access rights have been so impaired as to constitute damage to property for public use under the eminent domain section of the constitution is a question of law to be decided by the trial court prior to submitting any question of damages to the jury. Dupuy, supra. An action for damages will lie even where all reasonable access has not been disrupted if access is materially and substantially impaired. City of Waco v. Texland Corporation, 446 S.W.2d 1 (Tex.1969).

The Avenue Corporation presented testimony that the restaurant had suffered a loss of 8,200 customers due to the construction. Additionally, The Avenue Corporation presented as witnesses customers and owners of other businesses in the area who testified to the substantial impairment of the restaurant’s access and the discomfort in dining created by the dust and noise generated by the City’s construction.

It is apparent from a review of this evidence that the trial court had sufficient basis to make its determination as a matter of law that there was material and substantial impairment of the restaurant’s access and that inverse condemnation had occurred. Accordingly, the City’s first two points of error are overruled.

The City contends in its third and fourth points of error that the jury’s finding of damages in the amount of $82,660.00 was not supported by the evidence. The evidence introduced by The Avenue Corporation at trial showed $120,270.00 in lost profits during the nine and one-half months of construction. The City attacks on appeal the method of proof regarding lost profits used by the restaurant, citing Southwest Battery Corporation v. Owen, 131 Tex. 423, 115 S.W.2d 1097 (1938) and White v. Southwestern Bell Telephone, Inc., 651 S.W.2d 260 (Tex.1983).

The City maintains that these cases set out the sort of proof which must be shown in proving lost profits. However, as there was no objection made to the evidence when offered, the City has failed to preserve any error in the consideration by the jury of the plaintiff’s evidence. PGP Gas Products, Inc. v. Fariss, 620 S.W.2d 559 (Tex.1981); Rule 103, Texas Rules of Evidence (Supp.1984). Consequently, the City’s third and fourth points of error are also overruled.

Finally, The Avenue Corporation asserts in its only crosspoint of error that it was entitled to recover pre-judgment interest as damages. At the conclusion of the trial, after the jury had made its finding regarding damages, The Avenue Corporation sought to recover as additional damages pre-judgment interest on the entire amount of damages from October 17, 1982, the beginning of the construction project. The trial court refused to award such prejudgment interest, concluding that The Avenue Corporation had no pleadings in the trial court to support an award of pre-judgment interest; that damages were not established as of a definite time, so that there was no way for the court to set the date from which the interest should commence to run; and that the amount of damages sought by The Avenue Corporation was not definitely determinable. We agree.

The plaintiffs third amended original petition (on which it went to trial) contained no prayer for pre-judgment interest. While pre-judgment interest which is based on a written contract and which is recoverable by a statute may be sought under a simple prayer for general relief, a plaintiff seeking recovery of pre-judgment interest as damages must have a specific pleading and prayer. Republic National Bank v. Northwest National Bank, 578 S.W.2d 109 (Tex.1979); Black Lake Pipe Line Co. v. Union Construction Co., Inc., 538 S.W.2d 80 (Tex.1976).

Accordingly, we affirm the judgment of the trial court.


text:
    Mildred L. TILLER, et al., Appellants, v. W.J. TILLER, et al., Appellees.
    No. 14227.
    Court of Appeals of Texas, Austin.
    Feb. 6, 1985.
    Rehearing Denied Feb. 27, 1985.
    C.C. Small, Jr., Small, Craig & Werken-thin, Austin, for appellants.
    John H. Burris, Alice, for appellees.
    Before POWERS, GAMMAGE and CARROLL, JJ.
   CARROLL, Justice.

The appellees filed suit in the district court of Caldwell County, seeking, among other relief, recovery of accrued royalty payments claimed by them under a 1958 partition deed. The trial court entered partial summary judgment construing the partition deed in favor of the appellees, and subsequently entered a final judgment awarding damages to the appellees based on the trial court’s interpretation of the 1958 deed. We will reverse the judgment of the trial court and render judgment that the appellees take nothing in this cause.

This case revolves around the proper construction of an October 13, 1958 partition deed between eight persons who were the owners in common and in fee simple of 356.536 acres of land in Caldwell County. The parties to the 1958 partition deed included Mildred L. Tiller, one of the appellants in this case, and W.C. Tiller, under whom the appellees claim. The deed expressly recited that the eight partitioners were “... desirous of making partition of the (356.536 acres), including the oil, gas and mineral rights thereunder, _” (emphasis added). The deed divided the property into eight separate 44.567 acre tracts, with one individual tract being conveyed to each of the partitioners. The surface estate was clearly vested in each of the individual owners. This dispute arose over the division of minerals in the partition deed.

Appellant Mildred L. Tiller received Tract # 1 under the partition deed which conveyed to her the following:

... for her part, share and proportion of the aforesaid lands and premises, and the oil, gas and mineral rights thereunder, the following described tract of land and the following oil, gas and mineral rights therein, on and under the same, to-wit: [metes and bounds description deleted] and of the oil, gas and other minerals in, on, under or that may be produced from said 44.567 acres, Tract # 1, the said Mildred L. Tiller shall own out of the royalties provided for in any oil, gas or other minerals lease that may be given thereon % of such royalties (⅜ of Vs) and of such oil, gas and minerals produced in, on and under, or that may be produced from said land, and the said Mildred L. Tiller shall own all of the Vs lease-hold rights on all oil, gas and other minerals, in, on or under said land, and shall have the sole right, without the joinder of any of the parties hereto, to give and execute oil, gas and mineral leases on said tract of land and to receive for herself, her heirs and assigns, all bonus monies or other consideration, including annual rentals, paid for any such oil, gas or other mineral leases, provided, however, that all oil, gas and other mineral leases that may be executed by the said Mildred L. Tiller, her heirs or assigns, shall provide for a royalty of not less than Vs of the oil, gas or other minerals that may be produced from said land.

The exact language used in the conveyance to Mildred L. Tiller was also used in conveying the remaining seven tracts. The partition deed also contained the following language:

In other paragraphs of this partition deed, Tract # 1 is described herein and set aside to Mildred L. Tiller, Tract # 2 to Ester T. Morse, Tract #3 to Lucille T. Langley, Tract #4 to Irby L. Tiller, Tract # 5 to Gladys T. Couser, Tract # 7 to Jimmy T. Warner, and Tract #8 to James M. Tiller, each of said tracts containing 44.567 acres of land. Under each of said tracts, Nos. 1, 2, 3, 4, 5, 7 and 8, the said W.C. Tiller shall own ¼ of the Vs royalty, (¾) of all the oil, gas and other minerals, produced from said land, and the same shall be payable out of the royalty provided in any oil, gas or other minerals lease given on said land, same to be a royalty interest and free and clear of all drilling and operating expenses, (emphasis added).

On March 6, 1981, the appellants executed oil and gas leases on their respective individual tracts. These leases provided a Vs royalty payment, rather than a Vs royalty payment. Each of these oil and gas leases contains the following express royalty provision:

In lieu of the normal Vs royalty and bonus, lessor shall receive a Vs royalty as herein provided. It is understood and agreed that any other heirs of J.L. Tiller and Emma Tiller (or such heirs, successors and assigns) who may have a royalty interest in the herein described land shall be paid out of lessor’s royalty as if such royalty was the customary Vs royalty interest, the remaining ¾0 interest attributable to bonus.

The appellees claim that they are entitled to Vs of any royalty received under any oil and gas lease on the partitioned tracts, claiming in this case, Vs of Vs or Vas of the total production from each tract. The trial court agreed, and granted relief which awarded them a Vis interest in all production under the oil and gas leases.

Our reading of the partition deed, leads us to conclude that each of the partitioners received, outright, the surface to his respective tract, along with the mineral estate lying under his acreage, subject to a royalty interest discussed below. While the partition deed in one section uses the phrase “all of the Vs lease hold rights”, it is apparent that the deed conveyed outright ownership to each individual of the mineral estate under his respective tract.

Each tract was subject to a Vs royalty interest which was to be shared among the partitioners. The owner of each individual tract would receive ¾ of the Vs royalty with each remaining partitioner receiving ⅛ of Vs (which was clearly expressed as V72) of the minerals in and under the tracts conveyed to their eopartitioners.

The partition deed expressly granted the owner of each individual tract all rights regarding the execution of oil and gas leases on his tract as well as the right to receive all bonus monies or other considerations. The only restriction on the individual owners as to the development of their mineral estate was a provision that any lease must provide at least a Vs royalty interest to be shared, as described above, among the original partitioners and their successors.

This case stands on much the sanie footing as Helms v. Guthrie, 573 S.W.2d 855 (Tex.Civ.App.1978, writ ref’d n.r.e.) wherein the Fort Worth court held that a reservation of “½ of the Vs royalty (same being ½6 of the total production) of oil, gas and other minerals” was a contractual limitation on the amount of the reserved interest. The court concluded that Helms owned a fractional royalty of Vis of the total production, not a “fraction of royalty” to be determined upon the execution of some future lease.

In the ease before us, the partition deed, in clear and unambiguous language, conveyed to W.C. Tiller, the appellees’ predecessor in title, “Vi of the Vs royalty, (V72) of all the oil, gas and other minerals produced from said land, (the tracts at issue)-” Under the Helms case, W.C. Tiller contractually limited the royalty interest reserved for himself to “Vo of Vs royalty, (V72) of all of the oil, gas and other minerals, ... payable out of the royalty provided for in any ... lease ... free and clear of all drilling and operating expenses.”

The appellees argue that the intention of the partition deed was to divide the royalty interest, regardless of size, with ¾ of the royalty being paid to the owner of each individual tract, and the remaining V9 of the royalty being shared among the other par-titioners. Appellees seek to disregard the apparent limitation language of the. partition deed which expressly states the division as “V9 of the Vs royalty (V72)” by relying on cases dealing with construction of ambiguous instruments. Since we find this provision of the partition deed to be clear and unambiguous, these cases are not persuasive.

Appellees next turn to the bonus clause in the leases at issue, arguing that the ¾0 share of production described as being given in lieu of bonus, is in fact, royalty and as such should be shared among the parti-tioners. The appellees contend that the party holding executory rights to a mineral estate cannot deprive royalty owners of their rightful share of royalties by characterizing what is, in reality, a royalty interest as some form of bonus, citing Lane v. Elkins, 441 S.W.2d 871 (Tex.Civ.App.1969, writ ref’d n.r.e.), and Griffith v. Taylor, 156 Tex. 1, 291 S.W.2d 673 (1956). Under our interpretation of the partition deed, any distinction between bonus or royalty as to the ¾0 interest at stake in this case is meaningless, since we hold that the appel-lees’ predecessor in title received a specific fractional royalty interest equal to Vs of Vs, or V72.

Accordingly, we reverse the judgment of the trial court, and render judgment that the appellees, as plaintiffs, take nothing in the case below.


author: GAMMAGE, Justice.

text:
    PEDERNALES ELECTRIC COOPERATIVE, INC., Appellant, v. C.D. BAKER, et ux., Appellees.
    No. 14276.
    Court of Appeals of Texas, Austin.
    Feb. 6, 1985.
    David C. Duggins, Clark, Thomas & Winters, Austin, for appellant.
    Danny M. Womack, Bob Roberts, Roberts, Womack, Weldon & McClish, Austin, for appellees.
    Before POWERS, GAMMAGE and CARROLL, JJ.
   GAMMAGE, Justice.

Pedernales Electric Cooperative, Inc., hereafter PEC, appeals from the trial court’s judgment awarding $51,933 in damages to C.D. Baker and Mary Baker, hereafter the Bakers, for condemnation of an easement over a portion of two tracts of land owned by the Bakers. PEC brings four points of error complaining of the factual and legal sufficiency of the evidence to support the judgment. We will affirm the trial court’s judgment.

The only issue in this appeal is adequacy of the evidence to support the jury’s findings on the value of the remainder of the two tracts after the easement was taken. PEC contends that the after-taking values found by the jury are below the minimum values for which there is testimony in the record; that while the jury is free to reach its own conclusion about the values of the remainder of the tracts by blending all the evidence, they cannot find a value outside the value range for which there is evidence. Texas Power and Light Co. v. Lovinggood, 389 S.W.2d 712 (Tex.Civ.App.1965, writ ref’d n.r.e.); Roberts v. State, 350 S.W.2d 388 (Tex.Civ.App.1961, no writ). We agree.

We believe the following statement in Roberts is pertinent to the case at bar:

It has been held in Maddox v. Gulf, Colorado & Santa Fe Ry. Co., Tex.Civ.App., 293 S.W.2d 499, (err. ref. n.r.e.) that in a condemnation case of this kind the jury, when considering the value of condemnee’s remaining property immediately after condemnation, are restricted only by the lowest figure testified to. See Houston Belt & Term. Ry. Co. v. Lynch, Tex.Civ.App., 185 S.W. 362, affirmed Tex.Comm.App., 221 S.W. 959. Also, in McConnico v. Texas Power & Light Co., Tex.Civ.App., 335 S.W.2d 397, (err. ref'd n.r.e.) the court held that a jury is at liberty to reach its conclusion by blending all of the evidence admitted before them, aided by their own experience and knowledge of the subject of inquiry; that they are not compelled to credit all the testimony of any witness or to reject it all. Moreover, our courts have held that opinion evidence is not conclusive. A jury may consider and accept or reject such opinions or it may find its own opinion from evidence and by utilizing its own experience in matters of common knowledge. McCarthy v. City of Amarillo, Tex.Civ.App., 307 S.W.2d 595 (no writ); Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943 and Nelson v. State, Tex.Civ.App., 342 S.W.2d 644. Citations omitted [emphasis added].

Id. at 391.

The record in this case contains the testimony of three people concerning the values of these tracts. Two of these three, both experts retained by the respective parties, testified about the value of the remainder of the two tracts after the condemnation of the easement, or the “after-values” of the remainders. All the witnesses agreed that the highest and best use of the larger tract was for rural acreage homesites, and retail business use for the small tract. There was conflicting evidence about whether the improvements had suffered damage or had any remaining value, since the improvements were not consistent with the highest and best use of the land. The improvements consisted of a water tank, barns, and out-buildings.

In reviewing the record in a condemnation suit, we must determine if there has been “a significant departure by the jury from the range of expert testimony” presented at trial. Leiber v. Texas Municipal Power Agency, 667 S.W.2d 206, 209 (Tex.App.1983, writ ref’d n.r.e.). Opinion evidence as to market value is not conclusive. McCarthy v. City of Amarillo, 307 S.W.2d 595 (Tex.Civ.App.1957, no writ). We must reverse the judgment only if the jury’s findings are so against the great weight and preponderance of the evidence as to be clearly wrong. Leiber, supra.

TRACT ONE

The remainder of the first of these two tracts is 35.71 acres in size. The jury found that the after-value of this tract is $77,491. The experts testified that the after-value was approximately $96,000 and $87,000. Based upon this testimony PEC contends, in its first and third points of error, that the jury’s finding is below the range of permissible values.

The record reflects, however, that both expert witnesses testified that the land had a per acre value, prior to the condemnation, of $2,500 an acre. One of these experts testified that the tract had diminished in value by 15%. If the jury believed that the land had the $2,500 per-acre value before the condemnation, and further believed that the‘ land had suffered a 15% diminution in value as a result of the condemnation, they could have found the after-value of this tract to be as low as $75,883. The amount found by the jury to be the after-value is above the minimum for which there is evidence in the record and is therefore within the permissible range of values. Appellant’s first and third points of error are overruled.

TRACT TWO

The remainder of the second tract is slightly less than one acre in size. The record contains direct testimony that the tract is now worth from $3,750 to $9,350. The jury found the after-value of the tract to be $3,135. The record also contains before-taking value estimates from $4,800 to $19,750. PEC complains in its second and fourth points of error that this finding is also below the range of permissible values. One of the witnesses testified that the tract was diminished in value by 30%. This testimony alone supports an after-value of $3,360, or an amount within $225 of the jury’s finding. Furthermore, there was testimony that the highest and best use of this tract would be for retail sales, and that the maximum potential for this purpose was decreased by 80% because of the easement. This evidence could support an after-value finding as low as $960. Appellant’s second and fourth points of error are overruled.

The judgment of the trial court is, in all things, affirmed.


author: FENDER, Chief Justice.

text:
    Helen Levell ORRELL, Appellant, v. Iva Dell COCHRAN, Independent Executrix, Appellee.
    No. 2-84-114-CV.
    Court of Appeals of Texas, Fort Worth.
    Feb. 13, 1985.
    Don Gladden, Fort Worth, for appellant.
    Morris & Schieffer, and Garrett Morris, Fort Worth, for appellee.
    Before FENDER, C.J., and ASHWORTH and JOE SPURLOCK, II, JJ.
   OPINION

FENDER, Chief Justice.

This case raises the issue of when a will has been properly executed. The trial court admitted into probate the instrument in question in spite of the fact that there was some irregularity regarding the placement of the decedent’s and notary public’s signatures. Appellant argues that it was error to admit the will into probate because she contends the instrument had not been executed in accordance with TEX.PROB. CODE ANN. sec. 59 (Vernon 1980).

We affirm.

On September 28, 1979, George Jefferson Cochran [hereinafter decedent] accompanied by his wife, Iva Dell Cochran [appel-lee], took a form document entitled “Last Will and Testament” to the Seminary State Bank, where decedent was a customer. The instrument had been filled out on a typewriter, and it contained a front and back side, which we set out in appendix.

An examination of this instrument reveals that A. Ruth Balega, a notary public at the bank, signed the instrument on the bottom line of the front side before the letters “L. S.” which is a Latin abbreviation meaning place of the seal. Decedent and his wife signed the instrument on the back side of the instrument in the affidavit part, after the words “personally appeared.” A. Ruth Balega also signed the back side on the bottom line above the words “Notary Public.” The three witnesses placed their signatures in the proper place at the top of the back side.

The decedent died on July 13, 1982. On July 21, 1982, decedent’s daughter, Helen Levell Orrell, filed an application in the probate court to probate a will which decedent had written in 1971. According to the terms of that instrument, decedent devised the sum of $5,000 to a son and the rest and residue of his estate to Helen Levell Orrell. On August 9, 1982, decedent’s widow, Iva Dell Cochran presented the instrument dated September 28, 1979, to the probate court. She asserted that this instrument was a will and that it revoked the will dated 1971 because it was later in time.

At a hearing to determine the validity of this instrument as a will, several witnesses testified as to the circumstances surrounding the signing of the 1979 instrument at the Seminary State Bank. The notary public, A. Ruth Balega, testified that the decedent and his wife (Iva Dell Cochran, the appellee) entered the bank and asked her to notarize his will. She stated that she got three bank employees to act as witnesses and that they all worked together to execute the document. When asked why she signed the instrument at the bottom of the front side, Balega replied, “I probably goofed.” Balega further stated that all three witnesses, as well as herself, affixed their signatures in the presence of each other and the testator. She described the order of the signings as follows: (1) she signed on the front side and placed her seal; (2) decedent and Iva Dell Cochran signed on the back side; (3) the three witnesses signed on the back side; and finally (4) she signed again at the bottom of the back side and placed another seal.

On March 27, 1984, about a year and a half after the hearing, the trial court ordered the 1979 instrument to be probated. Appellant claims that the trial court erred in admitting this instrument to probate because it was not executed in accordance with TEX.PROB.CODE ANN. sec. 59 (Vernon 1980).

Appellant argues that the irregularity in the placement of the signatures of the notary public and decedent renders the instrument invalid for testamentary purposes. Appellant relies on the doctrine that a self-proving affidavit of a will may not be used to validate a will which, standing alone, was not executed in accordance with the formalities required by sec. 59. Appellant relies on Boren v. Boren, 402 S.W.2d 728 (Tex.1966) and McGrew v. Bartlett, 387 S.W.2d 702 (Tex.Civ.App.—Houston 1965, writ ref’d), and Wick v. Fleming, 652 S.W.2d 353 (Tex.1983).

We disagree with appellant’s position that McGrew, Boren and Wich control the fact situation at bar. McGrew involved a situation in which there was a five-page document. The testimonial clause and the attestation clause appeared on the fourth page and they were left blank. On the fifth page there was a self-proving affidavit which was properly filled out by the testator, two witnesses, and the notary public. The court held that the self-proving affidavit is not merged in the will and that, therefore, the purported will was invalid because it had not been signed by the witnesses or testator. Boren also involved a self-proving affidavit which had been properly filled out. There the self-proving affidavit was attached to a purported will which did not have the names of the witnesses subscribed thereto. The Supreme Court held that the self-proving provisions attached to the will are not a part of the will but concern the matter of its proof only. In Wich, the signatures in question concerned those of witnesses, not of a testator. In addition, in Wich the witnesses signed at the conclusion of the affidavit, not in the body.

In the case at bar there is no completed affidavit. Rather, decedent simply placed his signature, because of the notary public’s mistake, in that part of the form which could be used as an affidavit, but which was not. Thus, appellant’s argument, drawn from McGrew, Boren, and Wich, that decedent’s signature cannot be valid for purposes of both the will and the affidavit is not controlling here.

We hold that the placement of testator’s signature on the backside of the instrument in the body of a part denominated as an affidavit does not, in and of itself, invalidate the signature for testamentary purposes. As no evidence was elicited at the hearing that decedent affixed his signature to the instrument for a non-testamentary purpose such as for a self-proving affidavit, and as a visual examination of the instrument also fails to reveal that the signature was affixed for a non-testamentary purpose, we hold that the signature was therefore placed on the instrument by decedent with testamentary intent.

Accordingly, the instrument was properly admitted to probate, and we overrule appellant’s only point of error.

The judgment is affirmed.

APPENDIX


author: GRAY, Justice.

text:
    Dennis BEALL, Appellant, v. Mark McCARTER, Individually and d/b/a Mark McCarter Insurance and Investments, Appellee.
    No. 2-84-186-CV.
    Court of Appeals of Texas, Fort Worth.
    Feb. 20, 1985.
    True & McLain and James W. Reed and Frank E. McLain, Dallas, for appellant.
    Ungerman, Hill, Angrist, Dolginoff & Vickers and Robert F. Jones, Jr., Fort Worth, for appellee.
    Before FENDER, C.J., and BURDOCK and GRAY, JJ.
   OPINION

GRAY, Justice.

This is an appeal from a judgment based on a suit originally filed on a sworn account but tried, by implied consent, as a contract matter.

We reform the judgment and affirm the trial court.

Appellant Beall had been an insurance salesman for appellee and operated as an independent contractor. Policies sold by appellant were turned over to appellee, and appellant would receive a commission. Ap-pellee would, in turn, give the policy to the underwriting company, National Health Insurance Corporation of Dallas, and appellee would receive a commission. If the policy was rejected by the underwriting company or if the policyholder cancelled the policy, then premiums paid but not yet earned would be refunded to the policyholder by the underwriting company. The underwriting company would then recover the commissions paid to both appellant and appel-lee by simply deducting the amount from commissions due to appellee. Appellee would then recover the commissions paid to appellant by deducting the amount from commissions due to appellant.

The contract between appellant and ap-pellee required appellant to deposit $5,000.00 into a reserve fund to be used for the purpose of absorbing refunds owed by appellant in the event appellant was no longer working for appellee. If the refunds owed by appellant exceeded the amount of the reserve fund, the contract provided that appellant was obligated to pay appellee the difference.

The appellant left appellee’s employ and the reserve fund had $10,941.24 less than the amount needed to cover all the refunds on policies sold by appellant. Appellee demanded reimbursement from appellant without success. Appellee then filed a petition alleging the existence of a sworn account which was unpaid. The appellant filed a sworn denial.

At trial, the only testimony was given by the accountant for appellee. The accountant testified to the existence of the contract mentioned above and to the fact that appellant had not performed under the contract. The contract itself was admitted into the evidence as were the accountant’s business records pertaining to the contract. The appellee then rested.

The appellant rested without cross-examining the appellee’s witness and without putting on any evidence of his own. The appellant then moved for judgment on the basis that appellee had not proven his cause of action.

One week after trial, appellant sent a letter to the judge, directing his attention to the case of Hollingsworth v. Northwestern National Ins. Co., 522 S.W.2d 242, 245 (Tex.Civ.App.—Texarkana 1975, no writ), which held that “a suit for insurance premiums may be brought as a sworn account, if it is for the recovery of premiums on policies sold by the plaintiff to the defendant ”, but not if it is for the recovery of premiums on policies sold by defendant to third parties on behalf of the plaintiff. The appellant’s letter to the judge pointed out that appellant’s duty to reimburse ap-pellee existed by virtue of a “special contract” between them, which fell outside the scope of sworn account.

The trial judge found that the case was tried by implied consent as a sworn account because there was no objection from the appellant. He further found that the appellant had failed to raise the defense of special contract until a week after trial and had, therefore, waived it. Judgment was then rendered for the appellee based on a sworn account.

In point of error number one, appellant again raises the issue of special contract and asserts that it was not waived at trial because it was the appellee’s duty to request a trial amendment pleading special contract as a theory of recovery.

We agree with the trial judge that the issue of special contract was waived. However, we disagree that the case was tried by implied consent as a sworn account. We believe that the case was tried by implied consent as a special contract, which caused the failure to plead special contract to be waived as a defense. The trial judge misapplied the concept of trial by implied consent under TEX.R.CIV.P. 67. Rule 67 does not breathe legitimacy into an illegitimate cause of action which is pled. Rather, it forgives the failure to plead a legitimate cause of action which is proven without objection.

In Hollingsworth v. Northwestern National Ins. Co., 522 S.W.2d at 244, the defendant continually objected to proof of a special contract since such a cause of action had not been pled. On that basis, the defendant in that case was entitled to judgment. In the case at hand, the appellant did not so object, and we hold that he was not entitled to judgment, assuming that appellee proved all the elements of a special contract.

The appellant’s first point of error is, therefore, overruled with the caveat that the trial court rendered judgment for the correct party but on an incorrect theory.

In point of error number two, appellant claims that even if the special contract was tried by implied consent, there was no evidence that the contract was breached or that appellee suffered any damage. We disagree.

The evidence shows that the parties entered into a contract (a copy of the contract was in evidence), that appellant agreed to maintain a fund for the purpose of refunding premiums paid on policies sold by appellant but subsequently cancelled, that appellant agreed to reimburse appellee for refunds not covered by the reserve fund, and that appellant did not perform even after demand. The appellee therefore proved a breach of contract.

As for damages, the accountant for ap-pellee testified as to the exact amount of the arrearage in the appellant’s reserve fund. The accountant testified that appel-lee reimbursed the underwriting company for the full amount of appellant’s debt, and had suffered a loss to the extent of the arrearage. We, therefore, hold that the appellee proved all the elements of a contract cause of action, even though he pled the elements of a sworn account cause of action. We overrule point of error number two.

When a plaintiff pleads a set of facts which, as a matter of law, would not entitle him to judgment and when he proves that same set of facts, the case has been tried on a wrong theory. We acknowledge that when a case is tried on a wrong theory, the proper disposition of the case on appeal is to reverse and remand for a new trial on a set of facts which, if proven, would entitle the plaintiff to judgment. West Texas Equipment Company v. Walker, 417 S.W.2d 864, 870 (Tex.Civ.App.—Amarillo 1967, writ ref’d n.r.e.).

However, we are not going to remand this case. The appellee pled a set of facts which, as a matter of law, did not entitle him to judgment, but he proved a set of facts, without objection, which did entitle him to judgment. Therefore, we hold that the proper disposition of this case is to void the judgment of the trial court which was rendered for appellee on the theory pled, and to render judgment for appellee on the theory which was proven.

The judgment of the trial court based on sworn account is hereby voided. We render judgment for appellee based upon breach of contract in the amount of $10,-941.24, principal, $1,550.06, interest, and $1,000.00, attorney’s fees.


text:
    Joe Angel CORTEZ, Appellant, v. The STATE of Texas, State.
    No. 2-83-217-CR.
    Court of Appeals of Texas, Fort Worth.
    Feb. 20, 1985.

      Anderson, Anderson & Rodriguez and Rosendo Rodriguez, Jr., Wichita Falls, for appellant.
    Harold Lerew, Dist. Atty., Wichita Falls, for State.
    Before FENDER, C.J., and HUGHES and GRAY, JJ.
   OPINION

FENDER, Chief Justice.

Appellant was indicted for possession of more than five but less than fifty pounds of marihuana. A jury convicted him of the lesser included offense of possession of more than four ounces (but less than five pounds) of marihuana. His punishment was fixed at seven years. He now appeals on some fourteen grounds of error.

We affirm.

Pursuant to a search warrant two Wichita Falls police officers went to premises rented by appellant and occupied by him together with his wife and two minor children, a son 12 years old and a daughter aged 10. Upon entry one officer smelled the odor of marihuana. The officer found appellant in a bedroom lying on the bed watching television. In the closet of such bedroom the officer found a suitcase which contained a white plastic trash bag and a plastic bag containing a usable quantity of marihuana. In a nearby hallway (where the odor of marihuana was strong) the officer found an ice chest that contained several empty plastic baggies.

The other officer searched the attached garage where he found a green trash bag which contained several baggies of marihuana and a brown paper bag which also contained marihuana. The baggies in the garage were similar to the baggies in the ice chest. All items in the garage were dusty (the garage was open by reason of having no door) except the green trash bag and the brown paper bag which thus appeared to have been recently placed therein.

In his first ground of error appellant attacks the sufficiency of the evidence to support the verdict of the jury. In reviewing the sufficiency of the evidence in either a direct or circumstantial evidence case, we must view the evidence in the light most favorable to the jury’s verdict and consider whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984); Wilson v. State, 654 S.W.2d 465, 471 (Tex.Crim.App.1983) (on rehearing). A conviction cannot be sustained if the evidence leaves any reasonable doubt as to the guilt of the accused. Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979). Thus it follows that a conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the defendant. Johnson v. State, 673 S.W.2d 190 (Tex.Crim.App.1984); Wilson v. State, supra, at 471; Williams v. State, 631 S.W.2d 171, 173 (Tex.Crim.App.1982).

In this case, as in many cases brought before our appellate courts, it is difficult to determine with certainty whether the State maintains that they have direct evidence or circumstantial evidence. Without reaching a decision on this question, the evidence will be tested under the principles of circumstantial evidence, since no known decisions on direct evidence would pose more stringent requirements under the facts before us.

An examination of the record reflects the following affirmative links between the appellant and the contraband seized on the occasion in question:

1. The house is rented by the appellant.
2. He and his immediate family (two “tween-age” children and his wife) were the only persons present.
3. The officers observed nothing to indicate that anyone other than appellant and his immediate family resided on the premises.
4. The garage adjoins the house.
5. Marihuana was found in the closet in the defendant’s bedroom inside a suitcase.
6. A central hallway was permeated with a very strong odor of marihuana in its harvested state.
7. There were plastic baggies in the hallway area similar to the 28 baggies containing marihuana found in the garage.
8. The smell of marihuana in the hallway area was strong enough that any occupant of the house should have been able to detect it.
9. Two bags containing marihuana were found in the adjoining garage.
10. The two bags had no dust on them although everything else in the garage was dusty.

There can be no other explanation for the strong smell of marihuana in the hallway than the recent presence of marihuana in that location. The lack of dust on the plastic trash bag and the brown paper bag found in the garage (where all else was dusty) can only lead to the conclusion that the bags were quite recently placed there. In the absence of any explanatory testimony, it is not illogical for the jurors to conclude that the marihuana in the garage had recently been exposed to the air in or near the hallway and then deposited (in sealed packages) in the garage.

The right of a defendant to rely on the State’s burden of proof (and thus decline to call witnesses) is well recognized. However, in this case appellant called his brother to the witness stand to testify generally to the effect that his (the brother’s) two teen-age sons had been living with appellant at the time of the search. Having availed himself of the opportunity to offer his brother’s testimony, it is singular to note that no effort was made to place upon the stand his wife or either of his two children, all of whom were present at the time of the search. Nor was any apparent effort made to secure the testimony of the nephews.

We conclude that the evidence was sufficient to sustain the verdict of the jury and also to eliminate any other reasonable hypothesis. We need not then discuss whether the finding of marihuana in a suitcase in his room where he was present constitutes direct evidence of his guilt. Ground of error number one is overruled.

In ground of error number two appellant complains of the failure of the trial court to grant a motion to quash which asked dismissal of the indictment because it failed to specify the type of “possession” charged to appellant. Appellant cites no case directly in point. Appellant urges that we must look to TEX.PENAL CODE ANN. sec. 6.01(b), where “possession” is defined in alternative terms, i.e., “knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.” (Emphasis added.)

Appellant attempts to differentiate this general definition of possession which is contained in that section of the Penal Code requiring that offenses must be “voluntary” from the specific provision set forth in the Texas Controlled Substances Act, sec. 1.02(23), which states: “ ‘Possession’ means actual care, custody, control or management,” and to require the State in its indictment to choose one of the alternative definitions in sec. 6.01(b). He undertakes to buttress this argument by showing that the court used the sec. 6.01(b) definition in the charge to the jury.

In Phelps v. State, 623 S.W.2d 936 (Tex.Crim.App.1981) the Court of Criminal Appeals held that the word “possession” is sufficient in an indictment to charge an offense under the Texas Controlled Substances Act without further definition and that the term “possession” describes a relationship to property, not an act or omission of the defendant. The Controlled Substances Act is silent as to voluntariness, hence the trial court quite properly drew upon sec. 6.01(b) of the Penal Code to demonstrate to the jury that involuntary acts are not offenses. Appellant made no objection to the manner in which the court so applied the law on voluntary action in the charge to the jury, hence nothing is preserved for review here. Ground of error number two is overruled.

In grounds of error three, four and five, appellant complains of the action of the trial court in excusing three venire persons from service on the jury when no objection or challenge had been levelled by the State. The record reflects that each prospective juror stated directly to the court that he or she could not consider the full range of punishment. In each instance defense counsel registered an objection that the court refused to permit counsel to “rehabilitate” the juror. At no time was any objection directed to the court concerning the lack of challenge by counsel. Where the objection made at trial does not comport with the ground of error on appeal nothing is preserved for review. Boyd v. State, 643 S.W.2d 700, 706 (Tex.Crim.App.1982). These three grounds of error are overruled.

In grounds of error six and seven, appellant complains of the admission, over objection, of two statements by one of the investigating officers on the ground that such were hearsay. The two statements (one right after the other) were:

(1) “A confidential informant advised me of a subject on Britain Street that had a quantity of marihuana.” [objection].
(2) “After taking the information from the confidential informant, I applied for a search warrant.” [objection].

Appellant’s reliance on Smith v. State, 574 S.W.2d 555 (Tex.Crim.App.1978) and Haynes v. State, 567 S.W.2d 518 (Tex.Crim.App.1978) is misplaced. In each of those decisions the testifying officer related statements that identified the defendant as the person possessing the contraband. The instant cause reflects only general information much like the testimony in Maxon v. State, 507 S.W.2d 234 (Tex.Crim.App.1974) which referred to a location but did not specify the individual. These two grounds of error are overruled.

In ground of error number eight appellant complains of the refusal of the trial court to require the State to identify the confidential informant in this cause where a State’s witness referred to certain information furnished by the informant. The established rule on disclosure protects the identity of the informant unless (1) the informant participated in the offense; (2) the informant was present at the time of the offense or arrest; or (3) the informant was otherwise shown to be a material witness (a) to the transaction or (b) as to whether appellant knowingly committed the act charged. See Rodriguez v. State, 614 S.W.2d 448 (Tex.Crim.App.1981).

Appellant has failed to demonstrate that the informant in this cause falls into any one of these categories. Ground of error number eight is overruled.

In grounds of error nine and ten appellant complains of error because, during a recess, the trial judge was contacted by a juror (in the courthouse corridor) who asked the judge about some of the testimony concerning the odor of marihuana. The judge told the juror he could not ask a question of the witness and that the juror would just have to consider the testimony and make up his own mind about the evidence. Such a response cannot be considered as an “instruction” to the juror. It is always unfortunate when any contact takes place between a juror and any person not a juror where anything is said which is remotely connected with the case. But this record does not reflect any statement by the judge which could have influenced the juror or in any way indicate that the judge had any feeling about the guilt or innocence of the appellant or any feeling about the truthfulness of any witness. Grounds of error nine and ten are overruled.

The next three grounds of error are directed at arguments made by the prosecutor during summation at the close of the case. We find no error therein and overrule grounds of error eleven, twelve and thirteen.

In ground of error number fourteen appellant complains of error when the court (while instructing the jurors on proper use of the verdict forms) said “We, the jury, assess the defendant, Joe Angel Cortez’s punishment at four — at blank years confinement in the Texas...” When counsel made his objection the judge instructed the jury “You are instructed to disregard that slip of the tongue that the Court made.” Even if the inadvertent statement of the judge be construed as error, the prompt instruction to disregard was sufficient to cure same.

The judgment of the trial court is affirmed.


author: HILL, Justice.

text:
    Richard Larry BRYANT, Appellant, v. The STATE of Texas, State.
    No. 2-84-252-CR.
    Court of Appeals of Texas, Fort Worth.
    Feb. 21, 1985.

      Charles P. Saunders, Denton, for appellant.
    Jerry Cobb, Crim. Dist. Atty., and Jim E. Crouch, Asst. Dist. Atty., Denton, for State.
    Before ASHWORTH, JOE SPURLOCK, II and HILL, JJ.
   OPINION

HILL, Justice.

Appellant was found guilty by a jury of indecency with a child in violation of TEX. PENAL CODE ANN. sec. 21.11 (Vernon Supp.1985). The jury assessed punishment at five (5) years confinement in the Texas Department of Corrections. Four grounds of error are raised.

We affirm.

Appellant first complains of the trial court’s refusal to grant him permission to take the depositions of the prosecu-trix, K.C., and her mother. A trial court is authorized under TEX.CODE CRIM.PROC. ANN. art. 39.02 (Vernon 1979) to permit a defendant to take depositions upon a showing of good cause. Martin v. State, 422 S.W.2d 731, 732 (Tex.Crim.App.1967). The determination of whether a good reason exists for the taking of such depositions is based on facts made known to the court at a hearing for that purpose. Yaw v. State, 632 S.W.2d 768, 769 (Tex.App.—Fort Worth 1982, pet. ref’d). The court, in its judgment, then grants or denies the application on the basis of the facts presented. Id. Accordingly, the trial court has wide discretion in either granting or denying an application for depositions. James v. State, 546 S.W.2d 306, 309 (Tex.Crim.App.1977); Beard v. State, 481 S.W.2d 875, 876 (Tex.Crim.App.1972). It therefore follows that a reviewing court will not find that a trial court has abused its discretion in declining to permit depositions to be taken absent a showing of injury as a result of such denial. James v. State, 563 S.W.2d 599, 602-03 (Tex.Crim.App.1978); Beshears v. State, 461 S.W.2d 122, 126 (Tex.Crim.App.1970).

The record does not reveal an affidavit stating facts necessary to constitute a good reason for taking K.C. and her mother’s depositions. Thus appellant has failed to follow all the required statutory procedures and it was not an abuse of discretion for the trial court to refuse him permission to take the aforementioned depositions. See Martin, 422 S.W.2d at 732-33; art. 39.02.

Moreover, appellant has not shown he was injured by the trial court’s refusal. See Gonzalez v. State, 647 S.W.2d 369, 373 (Tex.App.—Corpus Christi 1983, pet ref’d). Both K.C. and her mother testified at trial and were thoroughly cross-examined. In situations such as this where the witnesses are subject to cross-examination, courts have held no injury results from a trial court’s refusal to permit a defendant to take their depositions. McKinney v. State, 491 S.W.2d 404, 407 (Tex.Crim.App.1973); Boyd v. State, 633 S.W.2d 578, 582 (Tex.App.—Texarkana), aff'd, 643 S.W.2d 708 (Tex.Crim.App.1982). We overrule appellant’s first ground of error.

In three separate grounds of error, appellant challenges the sufficiency of the evidence to support the jury verdict. We are required to view the evidence in the light most favorable to the verdict. See Flournoy v. State, 668 S.W.2d 380, 383 (Tex.Crim.App.1984). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Wilson v. State, 654 S.W.2d 465, 471 (Tex.Crim.App.1983).

A factual summary of the evidence adduced at trial reveals that on April 16, 1984, K.C., who was then five (5) years old, was turning cartwheels in her yard. Appellant was repairing a neighbor’s garage door. The child wandered over and began talking to appellant. Appellant then offered to give the girl a piggyback ride. While the girl was on appellant’s back, she claimed he put his hands underneath her underpants and touched her “down between [her] legs.”

By his second ground of error appellant contends there was insufficient evidence to show he touched the child’s vagina as alleged in the indictment. Having particularly alleged “the vagina,” the State must prove a touching of the vagina. Lujan v. State, 626 S.W.2d 854, 858 (Tex.App.—San Antonio 1981, pet. ref’d).

“Vagina” has been defined as the canal in the female extending from the uterus to the external parts of the female genital organs. BLAKISTON’S GOULD MEDICAL DICTIONARY 1439 (4th ed. 1979). The sufficiency of the evidence required to prove that a defendant touched the vagina of a child in an indecency with a child case has been previously considered by Texas courts. See Tyra v. State, 534 S.W.2d 695, 696-97 (Tex.Crim.App.1976) (prosecution under predecessor statute to TEX.PENAL CODE ANN. sec. 21.11); Lujan, 626 S.W.2d at 857-59. In examining the testimony of the children involved, courts have kept in mind a child’s lack of technical knowledge in accurately describing the parts of his body. See Clark v. State, 558 S.W.2d 887, 889 (Tex.Crim.App.1977).

In Tyra, the Court of Criminal Appeals held the testimony of the prosecutrix was sufficient to support the allegation that appellant “placed his hand ‘against’ [her] vagina.” Tyra, 534 S.W.2d at 697. In that case the nine (9) year old prosecutrix testified as follows:

A He put his hand between my legs.
Q Did he place his hand against your vagina?
A Yes.

She further testified:

A He put his hand where my vagina is.
Q All right. When you say vagina, what do you mean by that?
A Where I use the rest room.
Q Okay. You mean the whole area around there, don’t you, isn’t that what you mean, the whole area between your legs?
A Yes.
Q So you are saying that maybe he touched the whole area between your legs, is that what your testimony is?
A. Yes.

Id. at 696.

In the present case, K.C. testified with the aid of an anatomically correct doll that while appellant was giving her a piggyback ride he “put his hands underneath [her] [under]pants” and “touched [her] down between [her] legs.” We see no distinction between the prosecutrix’s testimony in Tyra and the testimony of the prose-cutrix in our case; accordingly, we find K.C.’s testimony was sufficient to describe a touching of the vagina. While it is true that the prosecutrix in Tyra at one point actually said the appellant placed his hand against her vagina, a close reading of her testimony indicates she used the word “vagina” to describe the whole area between her legs. See Tyra, 534 S.W.2d at 696. Thus the substance of the prosecutrix’s testimony in Tyra, as in our case, was that appellant put his hand between her legs. See id. The Court of Criminal Appeals deemed this sufficient to show a touching of the vagina. See id. at 697. We accordingly overrule appellant’s second ground of error.

In his third ground of error appellant contends that there was insufficient evidence to show he intentionally touched the child’s vagina.

K.C. unequivocally testified that appellant, while giving her a piggyback ride, put his hands down the top of her underpants and touched her down between her legs. Later, when asked how long appellant left his hand underneath her underpants, K.C. stated he left his hand there as long as it took her to count to ten slowly. Certainly this evidence will support the jury’s finding that appellant intentionally touched the child’s vagina. We therefore overrule appellant’s third ground of error.

By his fourth ground of error appellant argues that there was insufficient evidence to show he touched the child’s vagina with the intent to arouse and gratify his sexual desire.

Specific intent to arouse or gratify sexual desire is an essential element of the offense of indecency with a child. TEX. PENAL CODE ANN. secs. 21.11 and 21.01 (Vernon Supp.1985). “[T]he requisite specific intent to arouse or gratify the sexual desire of any person can be inferred from the defendant’s conduct, his remarks and all surrounding circumstances.” McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Crim.App.1981).

The intent to arouse or gratify sexual desire has been inferred from a defendant’s laugh or smile. Turner v. State, 600 S.W.2d 927, 931 (Tex.Crim.App.1980); Rodriquez v. State, 634 S.W.2d 48, 49-50 (Tex.App.—Amarillo 1982, no pet.). In the instant case, appellant smiled and shrugged his shoulders when the prosecu-trix’s mother confronted him shortly after the incident and told him never to touch her child again. This is some evidence that appellant received self-gratification from the occurrence.

Further the prosecutrix testified that after she got down, appellant offered to give her another piggyback ride. It is reasonable to infer arousal from appellant’s second offer. McKenzie, 617 S.W.2d at 216.

We accordingly find that the circumstances surrounding the touching here are capable of raising an inference of sexual desire and intent on the part of appellant. See Yaw, 632 S.W.2d at 769. Appellant’s fourth ground of error is overruled.

The judgment is affirmed.


text:
    Xanthea Faye BARREE and Aubrey J. Barree, Appellants, v. CITY OF FORTH WORTH and Neis Manley Hayes, Appellees.
    No. 2-84-177-CV.
    Court of Appeals of Texas, Fort Worth.
    Feb. 21, 1985.

      Dushman, Friedman & Brady and Lowell E. Dushman and Jack Friedman, Fort Worth, for appellants.
    Wade Adkins, City Atty., and Harvey L. Frye, Jr., Asst. City Atty., Fort Worth, for -City of Fort Worth.
    Joe Riddles & Associates and Ben H. Tompkins, Dallas, for Neis Manley Hayes.
    Before ASHWORTH, JOE SPURLOCK, II and HILL, JJ.
   OPINION

HILL, Justice.

In this rear end collision case, Xanthea Faye Barree and her father, Aubrey J. Barree, appeal a judgment of $1,500.00 for Miss Barree and of $394.82 for Mr. Barree against the City of Fort Worth and Neis Manley Hayes, jointly and severally. The jury found that the negligence of Miss Bar-ree and Mr. Hayes each contributed fifty percent to causing the collision. The Bar-rees present twenty points of error.

We reverse and remand for trial because the trial court, in submitting issues inquiring as to the contributory negligence of Miss Barree and in inquiring as to proximate cause, included elements of negligence and proximate cause which were not supported by the evidence.

The Barrees urge in points of error numbers one, two, three, four, five, six, and fourteen that there was no evidence or insufficient evidence to support Special Issues Nos. 4 and 5 which inquired as to whether certain acts or omissions on the part of Miss Barree were negligence and whether such acts or omissions were a proximate cause of the collision in question.

In determining a “no evidence” point, we are to consider only the evidence and inferences which tend to support the finding of the jury and disregard all evidences and inferences to the contrary. See Stodghill v. Texas Employers Insurance Association, 582 S.W.2d 102, 103 (Tex.1979); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). If there is any evidence of probative force to support the finding of the jury, the point must be overruled and the finding upheld. In re King’s Estate, 244 S.W.2d at 661-62.

A “no evidence” point of error must and may only be sustained when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; (4) the evidence establishes conclusively the opposite of a vital fact. Royal Indemnity Co. v. Little Joe’s Catfish Inn, Inc., 636 S.W.2d 530, 531 (Tex.App.—San Antonio 1982, no writ); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361 (1960).

If a “no evidence” point is sustained and the proper procedural steps have been taken, the finding under attack may be disregarded entirely and judgment rendered for the appellant unless the interests of justice require another trial. See National Life & Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909 (Tex.1969); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

Where the challenge to a jury finding is framed as an “insufficient evidence” point, we are to consider all the evidence in the case, both that in support of and that contrary to the finding, to determine if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. Garza v. Alviar, 395 S.W.2d at 823. If the court so determines, the finding should be set aside and a new trial ordered. Id.

In considering an “insufficient evidence” point, we must remain cognizant of the fact that it is for the jury, as the trier of fact, to judge the credibility of the witnesses, to assign the weight to be given their testimony, and to resolve any conflicts or inconsistencies in the testimony. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ.App.—Amarillo 1977, writ refd n.r.e.). This court may not substitute its judgment for that of the jury if the challenged finding is supported by some evidence of probative value and is not against the great weight and preponderance of the evidence. Alford, Meroney & Co. v. Rowe, 619 S.W.2d 210, 213 (Tex.Civ.App.—Amarillo 1981, writ ref’d n.r.e.).

The accident occurred on the evening of September 26, 1980, after Miss Barree had left work in her father’s car. The weather was misty and the street wet. Miss Barree had stopped her vehicle in the middle of the block to turn left into the lot of a drive-in restaurant when she was hit from behind by Mr. Hayes, the driver of an animal control truck for the City of Fort Worth. Miss Barree testified that she was signal-ling for a left turn, although Mr. Hayes testified that he never saw Miss Barree give any kind of turn signal. Miss Barree did not check the traffic behind her before the collision by either looking in her rear-view mirror or by turning her head. Mr. Hayes related that he saw Miss Barree come to a slow, gradual stop and that he saw her brake lights come on when he was about five truck lengths behind her. He looked into his rearview mirror to see if he could get into the lane to his right so that he would not have to stop for her, but there was traffic in that lane which prevented his moving over. When he applied his brakes, he started skidding. He let off the brakes to stop the skid, then collided with Miss Barree’s vehicle. Miss Barree was not wearing the corrective lenses required by her driver’s license at the time of the collision.

The trial judge submitted Special Issues Nos. 4 and 5 as follows:

ISSUE NO. 4
Do you find from a preponderance of the evidence that on the occasion in question Xanthea Faye Barree was negligent?
In considering the negligence of Xan-thea Faye Barree you may consider proper lookout, stopping suddenly, driving without corrective lenses, use of rear-view mirror, timely application of brakes, giving of stop signal and giving of left turn signal.
Answer “We do” or “We do not.”
ANSWER: _
If you have answered “We do” to Issue 4, then answer Issue No. 5; otherwise, do not answer Issue No. 5.
ISSUE 5
Do you find from a preponderance of the evidence that such negligence, if any, inquired about in Issue No. 4, was a proximate cause of the occurrence in question?
Answer “We do” or “We do not.”
ANSWER: _

There is no evidence that Miss Bar-ree stopped suddenly, that she failed to make timely application of her brakes, or that she failed to give a stop signal or was in any way negligent in the giving of a stop signal. Also, in view of the undisputed testimony that Miss Barree never looked at the traffic behind her, there is no evidence that Miss Barree’s failure to wear corrective lenses was a proximate cause of the collision. The Barrees objected at trial to the inclusion of these elements in Special Issue No. 4.

“Under Rule 277, the trial court has the discretion to submit an issue broadly, including the combination in one issue of several acts or omissions which may be alleged to constitute negligence. However, when one or more pleaded acts or omissions are unsupported by' evidence ... failure to limit the broad ultimate fact issue to acts or omissions which were raised by both pleadings and proof violates Rule 277 and is error.” Scott v. Atchison, T & S.F.R. Co., 572 S.W.2d 273, 277 (Tex.1978). We find that the trial court’s instruction to the jury that they could consider several acts or omissions which were not supported by the evidence was reasonably calculated to and probably did cause the rendition of an improper judgment. TEX.R.CIV.P. 434. This error could possibly have been made harmless by the use of a charge such as those contained in the supplement to the Texas Pattern Jury Charges which contain a broad submission but in which the jury answers separately as to each submitted act or omission. 1 STATE BAR OF TEXAS, TEXAS PATTERN JURY CHARGES Supp. 11, 15 (1973). We sustain points of error numbers one, two, three, four, five, six, and fourteen.

In view of a retrial, we will consider the matter raised by the Barrees in points of error numbers sixteen, seventeen, eighteen and nineteen. The Barrees contend that the trial court erred in including both “proper lookout” and “use of rearview mirror” in the negligence issue, contending that “use of rearview mirror” is just a specific example of the more broad term “proper lookout.” The negligent failure to use one’s rearview mirror is included in the negligent failure to keep a proper lookout. It is a specific example of how one might fail to keep a proper lookout. Hayes and the City of Fort Worth are not entitled to the submission of the broad issue of “proper lookout” and one of the broad issue’s narrow parts such as “use of rearview mirror.” See Rodriquez v. Estes, 635 S.W.2d 918 (Tex.App.—Amarillo 1982, no writ). We sustain points of error numbers sixteen, seventeen, eighteen, and nineteen. In view of our holdings on the points of error discussed, it is unnecessary to determine the remaining points of error.

The judgment is reversed and remanded for trial with the costs charged to the ap-pellees, jointly and severally.