author: McDONALD, Chief Justice.

text:
    Bernard L. MIDDLETON, et al., Appellants, v. Bonner D. MURFF, et al., Appellees.
    No. 10-84-060-CV.
    Court of Appeals of Texas, Waco.
    Nov. 29, 1984.
    Rehearing Denied Dec. 27, 1984.
    Anthony W. Hall, Jr., Houston, for appellants.
    Joe Cannon, Cannon, Cannon & Reed, Groesbeck, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by appellants (plaintiffs below) from an order of the trial court in Cause 9248 denying plaintiffs’ motion to vacate judgment in Cause 3424B.

The controlling facts are:

In April, 1981, appellee Murff filed suit against appellants in Cause 3424B in 87th District Court in Leon County to partition certain real estate in Leon County. Appel-lee Ward thereafter intervened in such suit.

On June 25,1982, the parties appeared in court and entered an agreement to settle the case, and agreed to submit thereafter to an agreed judgment of the court. Soon thereafter appellants repudiated the agreement to settle and so informed the trial court and of the reasons therefor.

The matter was then set for a hearing on August 6, 1982. Plaintiffs appeared but the judge did not. Plaintiffs’ counsel reached the judge by telephone, who advised plaintiffs’ counsel he was going to enter a consent judgment without consent of plaintiffs and over their objections.

Thereafter the judge entered final decree in Cause 3424B dated August 6, 1982, dividing the property as previously agreed by the parties.

Plaintiffs filed motion for new trial which was overruled.

On August 5, 1983, plaintiffs filed this case, Cause 9248, as a Bill of Review. On September 21, 1983, plaintiffs filed a Motion to Vacate the Judgment in Cause 3424B, and Withdraw Plaintiffs’ Petition for Bill of Review (Cause 9248).

On December 16, 1983, after hearing, the court granted plaintiffs’ motion for nonsuit on plaintiffs’ petition for Bill of Review (Cause 9248), and denied plaintiffs’ motion to vacate the August 6, 1982, judgment in Cause 3424B.

The trial court thereafter entered like judgment Nunc Pro Tunc, correcting clerical errors.

Appellants (plaintiffs) appeal on 12 points asserting the trial court erred in overruling their motion to vacate the 1982 consent judgment [in Cause 3424B] because the undisputed evidence discloses that the court knew before it entered the consent judgment that plaintiffs did not consent to the entering of such judgment and the court therefore lacked the authority to do so.

The record discloses that the parties agreed to the terms of the judgment rendered August 6,1982, on June 25,1982, but that they withdrew their agreement and consent prior to August 6, 1982, and so informed the judge. The judge nevertheless rendered the previously agreed to consent judgment.

A judgment rendered on agreement of parties is a consent judgment. But a valid consent judgment cannot be rendered when consent of one of the parties thereto is wanting. It is not sufficient to support the judgment that a party’s consent thereto may at one time have been given; consent must exist at the very moment the court undertakes to make the agreement the judgment of the court. Burnaman v. Heaton, et al, S.Ct. 150 Tex. 333, 240 S.W.2d 288; Beazley et al, v. Randolph et al, CCA (Houston) NRE, 409 S.W.2d 487.

Appellants argue that because the judgment did not have their consent at the time of its entry it is void and can be set aside at any time by any court.

If a judgment rendered by a trial court is void it may be set aside by that court at any time. Freeman v. Freeman, S.Ct. 160 Tex. 148, 327 S.W.2d 428, 433; Glenn W. Casey Construction, Inc. v. Citizen’s National Bank, CCA (Tyler) NWH, 611 S.W.2d 695. Freeman, supra, holds:

Generally speaking, a judgment rendered by a legally constituted and organized court having jurisdiction over the subject matter of all the parties to a suit will be held valid * * unless the particular judgment is one which the court had no power to render * *. Judgments are void for lack of power in courts to render them where they are rendered contrary to constitutional or validly statutory prohibition or outside limiting constitutional or statutory authority.

The court which rendered the August 6, 1982, judgment had jurisdiction over the parties and the subject matter — albeit it appears the court erred. Thus the 1982 judgment is merely voidable or invalid and not void.

When appellants did not appeal such voidable judgment, did not seek a writ of error to such judgment, and voluntarily dismissed their Bill of Review to correct such judgment, the trial court was without authority to vacate it or set it aside, as it would have had the authority to do if such judgment was void. Sawyer v. Smith, CCA (Waco) NRE, 552 S.W.2d 936, 939.

The order of the trial court is correct. All appellants’ points are overruled.

AFFIRMED.

      . The 87th District Court and the 278th District Court have concurrent jurisdiction.


source: Caselaw Access Project

author: McCLOUD, Chief Justice.

license: Public Domain

text:
    Bart TALKINGTON, Appellant, v. STATE of Texas, Appellee.
    No. 11-83-288-CR.
    Court of Appeals of Texas, Eastland.
    Nov. 29, 1984.
    Rehearing Denied Jan. 10, 1985.
    James Murphy, Dallas, for appellant.
    Henry M. Wade, Criminal Dist. Atty., Dallas, for appellee.
   McCLOUD, Chief Justice.

The jury convicted appellant of rape and set his punishment at confinement in the Texas Department of Corrections for a term of five years.

On March 24, 1983, appellant and James Parker met the complainant at a bar. After leaving the bar, appellant purchased champagne which the three drank as they rode around in appellant’s van. It is undisputed that appellant and Parker had sexual intercourse with the complainant in the van. The dispute is whether or not the complainant consented. She testified that she did not consent to having sexual intercourse with either Parker or appellant. Appellant and Parker testified that the complainant consented to the sexual intercourse.

Parker and appellant were jointly tried. The jury acquitted Parker, but found appellant guilty. We reverse and remand.

Appellant argues that the court improperly commented on the weight of the evidence in the charge. We agree. The court, in its charge, referred to the complainant as the “victim.” Appellant timely and properly objected. In the charge, when applying the law to the facts, the court stated:

Now therefore, bearing in mind the foregoing instructions, if you find and believe from the evidence beyond a reasonable doubt that the defendant, Bart Talkington, on or about the 24th day of March, 1983, in Dallas County, Texas, did then and there unlawfully intentionally or knowingly by means of force or threats have sexual intercourse with (KB), hereinafter called victim, a female not his wife without the consent of the said victim and by acts, words, and deeds placed the said victim in fear of harm, then you will find the defendant guilty of the offense of rape. (Emphasis added)

The sole issue in the ease was whether or not the complainant consented to the sexual intercourse. All parties testified that the sexual intercourse occurred. The controversy was whether the complainant was truly a “victim” or a willing participant.

TEX.CODE CRIM.PRO.ANN. art. 36.14 (Vernon Supp.1984) expressly provides that the judge shall not express “any opinion as to the weight of the evidence” in the written charge, or use “any argument in his charge calculated to arouse the sympathy or excite the passions of the jury.”

“Victim” is defined in Black’s Law Dictionary, 5th Ed., as “The person who is the object of a crime....” If the complainant consented to the sexual intercourse, as testified by appellant and Parker, she was not the object of a crime, and she was not a “victim.”

We hold that to refer in the court’s charge to the complainant as the “victim” when the issue is whether or not she consented to the sexual intercourse, constitutes reversible error.

We overrule appellant’s attack upon the sufficiency of the evidence to support the conviction. There is evidence that appellant, by means of force, had sexual intercourse with the complainant without her consent.

The judgment of the trial court is reversed, and the cause is remanded.


author: KEITH, Justice.

text:
    Jon Robert BELFORD, Appellant, v. Edith Ann BELFORD, Appellee.
    No. 14,198(T).
    Court of Appeals of Texas, Austin.
    Dec. 5, 1984.
    Rehearing Denied Jan. 1, 1985.

      Virgil E. Rogers, Dallas, for appellant.
    No brief for appellee.
    Before POWERS, KEITH and GAM-MAGE, JJ.
   KEITH, Justice.

The appeal is from an order denying a change of custody of minor children whose status was governed by a prior order entered in a divorce proceeding.

Jon Robert Belford and his prior wife, then known as Edith Ann Belford, who are the parents of the two children now the focus of our attention, procured the entry of a divorce decree in Dallas County on September 4, 1980. The mother, Edith, was appointed managing conservator of both boys with the father being ordered to make monthly support payments of $75.00 weekly.

Both parties to that proceeding have remarried and the mother has moved to the State of Missouri. The mother’s second husband had custody of children by his first marriage and tension soon developed between the new stepfather and the older boy, Jonathan Joseph Belford.

The original decree was very specific in its visitation rights granted each parent; and, with the mother’s move to a foreign state, the expense thereof became burdensome to the parties. In any event, the mother consented for the older boy to remain in Texas, after his Christmas visit, and attend school in Garland, Texas. During this modification (without court authorization) the boy stayed with his paternal grandparents of whom he was very fond and did exceptionally well in his school activities. This child is musically gifted and his stepfather was unable to finance his musical education because of his inability to give similar advantages to all of the children of his household. On the other hand, the paternal grandparents not only could, but did supply the child with all the amenities of life he desired.

In the bench trial, the paternal grandfather joined with the natural father in seeking modification of the order, but all relief was denied by the trial judge and the original order was not disturbed, except that the boy was permitted to remain in the Texas school for the remainder of the scholastic year and the grandfather was ordered to return him to his mother in Missouri at his expense, at the end of the semester.

There are three points of error contending that the court’s findings of fact supporting this order are contrary to the great weight and preponderance of the evidence. We have read the record carefully and find no merit in any of the points of error; consequently, we will affirm the judgment of the trial court.

In considering the challenges to the judgment, we will follow the rule enunciated in Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965), by considering all of the evidence in deciding the question.

Admittedly, there have been some changes in the conditions since the entry of the original divorce decree. Both parties have remarried and the mother now lives in a distant state. But a careful review of the record does not reveal that the movant— the father — met his burden on the “threshold inquiry” now required by Tex.Fam. Code Ann. § 14.08(c)(l)(1984), which now imposes upon the party seeking a change in custody, the burden to show a change of conditions so material and substantial that “the retention of the present managing conservator would be injurious to the welfare of the child and that the appointment of the new managing conservator would be a positive improvement for the child....” See Neal v. Neal, 606 S.W.2d 729, 731 (Tex.Civ.App.1980, writ ref’d n.r.e.), and authorities therein cited.

Appellants recognize the existence of such a burden but still argue that the trial court erred in failing to change the order. We disagree.

We are impressed from our study of the record that there is not a hint of any lack of moral integrity in either parent and there is no suggestion that ill treatment of the children can be expected from either parent.

In a non-jury case, the credibility of the witnesses and the weight to be given to the testimony is entrusted to the trial court whose judgment is not to be disturbed in the absence of strong evidence contrary to his findings. This we have not found.

The first three points of error, challenging the sufficiency of the evidence are overruled.

In the final point appellants argue that appellants’ constitutional rights were violated because a retired district judge heard the case and the appeal was transferred to this Court by the Supreme Court. No supporting case authority is mentioned, the argument being that under our state Constitution, Art. I, § 2, and Art. I, § 27, because our judges are elected and all litigants “impliedly [have the right to campaign for or against an elected judge],” he has been denied the right to have a judge hear his case who “can reflect the mores of the area where the matters are tried and not those of East Texas, the Hill Country, or another area of the State....”

Appellants do not point to any procedural irregularities in the judicial process or failure to comply with the statutes relating to the use of retired judges or the equalization of the dockets among the appellate courts. We find no error and the final point is overruled.

The judgment is affirmed.

      Keith, Justice, Retired, Ninth Court of Appeals, sitting by assignment. See Art. 1812, as amended.


author: BULLOCK, Justice.

text:
    REGO COMPANY, Appellant, v. Edsel W. BRANNON, Appellee.
    No. 01-83-0864-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 6, 1984.
    Rehearing Denied Dec. 31, 1984.

      James C. Arnold, Montgomery J. English, H. Lee Lewis, Jr., Ross, Griggs & Harrison, Barclay A. Manley, Thomas P. Sartwelle, Fulbright & Jaworski, Susan M. Townsend, Funderburk & Funderburk, James Barker, Talbert, Giessel, Stone, Barker & Lyman, Houston, for appellant.
    Ron G. Franklin, A. Glenn Diddel, III, Hill, Parker, Franklin, Cardwell & Jones, Houston, for appellee.
   OPINION

BULLOCK, Justice.

Rego appeals from a trial court judgment rendered on a jury verdict, awarding the appellee $205,000 in damages and post-judgment interest at an annual rate of 10%. We affirm.

The appellee purchased a pressurized propane gas cylinder in February, 1977, to fuel the stoves in his barbeque restaurant. In August, 1978, the appellee took the cylinder to a propane filling station, had it filled with propane gas, placed it in the rear of his hatchback automobile, and drove to his restaurant. He parked the automobile outside the building and left it there all day. When he returned to the automobile that evening and struck a match, propane gas that had accumulated inside the automobile ignited, inflicting second and third degree burns over 30% of the appellee’s body. Although propane gas normally contains an odoring agent, the appellee testified at trial that, because his clothes were saturated with barbeque sauce, he was, at the time of the accident, unable to smell anything except the aroma of barbeque.

Lee Cylinders, Inc., a co-defendant in this cause who arrived at a settlement with the appellee, manufactured the cylinder that contained the pressurized gas. Lee Cylinders affixed a warning label to the body of the cylinder that advised users not to expose the cylinder to fire or heat, and that “the valve is equipped with an automatic relief device designed to actuate when internal pressure exceeds 375 P.S.I.”

The appellant is the manufacturer of the valve, which contains a hand-operated main control and an automatic safety release. This is a spring-loaded device, required by federal law on such pressure control systems, designed to trip open automatically whenever pressure in the cylinder exceeds a threshold of 375 pounds per square inch, in order to prevent rupture and possible explosion. Evidently the temperature inside the automobile on August 11, 1978, reached or exceeded the required temperature that would cause excessive pressure within the tank, with the result that the automatic release bled quantities of propane into the vehicle throughout the day.

The appellee offered the testimony of an expert witness who testified that in his opinion the valve was defective as marketed from the standpoint that the appellant had failed to affix any warning on the valve apprising users of the existence and operation of the automatic safety release. The appellant countered that the valve was neither defective in its design nor manufacture, and that if anyone had been careless in failing to place adequate warnings about the automatic safety release, it had been the co-defendant Lee Cylinders.

The jury found that the appellant failed to give adequate warnings regarding the automatic safety release and that this failure to warn rendered the valve unreasonably dangerous as marketed. It then apportioned the negligence in this dispute as follows: 18% with Lee Cylinders; 41% with the appellee, and 41% with the appellant. The jury awarded $500,000 in damages, and the trial court assessed the appellant’s percentage of liability for the total award.

The appellant presents four points of error on this appeal, comprising three arguments:

That the trial court improperly denied the appellant’s motion for judgment notwithstanding the verdict (Points of Error 1, 2);

That insufficient evidence supports the jury’s attribution of negligence among the parties (Point of Error 3); and

That the trial court improperly admitted evidence of other claims against the appellant (Point of Error 4).

The appellant argues that the evidence introduced at trial did not support any theory of recovery against it, specifically, contending that the evidence established only the following:

1) That the design of the valve was not defective;

2) That the appellee’s only evidence regarding the inadequacy of a warning thus goes to the question of a warning about a non-existent design defect; and therefore

3) That since the appellant’s valve, standing by itself, had no defect, any danger or harm arising in this case arose as a result of Lee Cylinders’ failure to impart an adequate warning to the appellee.

The appellant contends that, contrary to the jury’s finding, it did not fail to provide an adequate warning to the appellee, and this failure to warn did not render the valve unreasonably dangerous as marketed. The appellant argues that the trial court should have sustained its motion for a judgment notwithstanding the verdict.

“Errors of the trial court in refusing to render judgment non obstante veredicto raise only no evidence questions for appellate review.” Wise v. Pena, 552 S.W.2d 196, 199 (Tex.Civ.App.-Corpus Christi 1977, writ dism’d). Moreover:

The law is clear in this State that before a trial court can render a judgment non obstante veredicto, based on the absence of evidence, it must determine that there is no evidence having probative force upon which the jury could have made the findings relied upon. 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 deducible from the evidence is to be indulged in such party’s favor [citations omitted].

Harbin v. Seale, 461 S.W.2d 591, 592 (Tex.1970); see Missouri Pacific Railroad Co. v. Shaw, 620 S.W.2d 161, 163 (Tex.Civ.App.-Corpus Christi 1981, writ ref’d n.r.e.); Siderius, Inc. v. Wallace Inc., 583 S.W.2d 852, 860-61 (Tex.Civ.App.-Tyler 1979, no writ); City of San Augustine v. Roy W. Green Co., 548 S.W.2d 467, 472 (Tex.Civ.App.-Tyler 1977, writ ref’d n.r.e.); Hartford Accident & Indemnity Co. v. Spain, 520 S.W.2d 853, 855 (Tex.Civ.App.-Tyler 1975, no writ); cf. Tex.R.Civ.P. 301.

In reviewing a challenge that insufficient evidence supports the jury’s finding, we must look to the record as a whole. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); In re King’s Estate, 150 Tex. 662, 663, 244 S.W.2d 660, 661 (1951). The jury is the sole judge of the credibility of a witness and the weight to be given his testimony. See, e.g., Dotson v. Royal Indemnity Co., 427 S.W.2d 150 (Tex.Civ.App.-Fort Worth 1968, writ ref’d n.r.e.).

We agree with the appellee that the trial court acted properly in denying the appellant’s motion for judgment notwithstanding the verdict. The appellee offered the testimony of a competent and qualified expert witness who testified clearly about the need for an adequate warning on the valve itself as to the existence and function of the automatic safety release, and therefore as to the dangers presented by the normal or abnormal operation of that automatic release. We do not agree with the appellant’s contention that this evidence established only a question regarding the design of the valve itself. The evidence introduced at trial established the necessity for an adequate warning affixed to the valve assembly independent of the warning attached to the cylinder, and it also established the responsibility of the component manufacturer, the appellant herein, to ensure the effective transmission of that warning. The basis for the appellant’s argument is a theory hypothesizing a defective design or manufacture of the device itself, and does not deal with the thrust of the appellee’s claim that the valve with its automatic safety release, although perhaps manufactured properly, did not apprise its users sufficiently about the dangers inherent in the operation of the automatic safety release. The evidence supports the jury’s finding, and we hold that the trial court acted properly in overruling the appellant’s motion for a judgment notwithstanding the verdict.

In the alternative, the appellant suggests that the weight of the evidence establishes either that there was no necessity for placing a warning on the valve, or that we should attribute any liability stemming from an inadequate warning to Lee Cylinders. We conclude, in reviewing the evidence, that this argument is without merit.

Furthermore, “when testimony is offered which tends to prove a fact issue it is admissible, and its sufficiency or probative effect becomes a question for the jury to pass upon. Meredith v. Eddy, 616 S.W.2d 235, 238 (Tex.Civ.App.-Houston [1st Dist.], 1981, no writ).

The appellant contends that the appel-lee’s expert witness in reality testified that the greater need regarding the valve was for its redesign, and that had the appellee accomplished such a redesign any additional warnings would have been unnecessary. The appellant argues that this, coupled with the jury’s finding that there was no defective design or manufacture of the valve, should result in the conclusion that there was no inadequate warning by the appellants. The appellee’s expert witness did hypothesize that a radically redesigned valve would have no need for additional warnings; however, this does not extend logically as far as the appellant would have us extend it. The bulk of the witness’ testimony, on both direct and cross-examination, established that the appellant negligently failed to place an adequate warning about the nature and operation of the automatic safety release on its valve, and that this inadequate warning did, in fact, render the valve unreasonably dangerous as marketed. The expert witness’ testimony does not, as the appellant suggests, go only to the question of the physical design of the valve, nor do we find that cross-examination disrupted his testimony in any way.

The record does not establish any basis for relieving the appellant of liability and shifting that liability to a co-defendant not now part of this appeal. No evidence exists in the record that the appellant ever transmitted a warning, either to the appel-lee or to Lee Cylinders, in a manner reasonably calculated to reach consumers such as the appellee. See Rourke v. Garza, 530 S.W.2d 794 (Tex.1975). We hold that the weight of the evidence supports the jury’s finding on the questions of the inadequacy of the warning and of the defective marketing effect of that inadequacy.

The appellant has failed to demonstrate the total lack of evidence necessary to compel the trial court to render a judgment notwithstanding the verdict. Similarly, the appellant has failed to demonstrate that the jury’s findings are without sufficient support in the record. We overrule the appellant’s first two points of error.

The appellant suggests in its third point of error that because Lee Cylinders was in a better position than the appellant was, to transmit an effective warning regarding the automatic safety release or that because the appellee would have neither read, understood, nor heeded such a warning, the jury’s apportionment of responsibility in this cause was contrary to the balance of the evidence and manifestly unjust.

This challenge is essentially an argument that the jury did not accord sufficient weight or credibility to the appellant, and we thus govern our review in accordance with the standards discussed in Garza, 395 S.W.2d 821; In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; Meredith, 616 S.W.2d 235; and Dotson, 427 S.W.2d 150. Based on those standards, we reject the appellant’s contention.

The weight of the evidence based upon the testimony of witnesses from Lee Cylinders and the appellee’s own expert witness satisfactorily demonstrates the propriety of the jury’s conclusion as to the part Lee Cylinders played in this unfortunate accident. This co-defendant is no longer present, and we refuse to hold in light of the total record that the apportionment was improper as between it and the appellant.

Regarding the apportionment between the appellant and the appellee, it is apparent from the record and the arguments of both parties that the appellee was in some respect responsible for the accident that overtook him. Presumably, this responsibility centers on the appellee’s having left the propane cylinder, fully charged, inside an automobile on a sunlit day, with the attendant risk arising from the “greenhouse effect” inside automobiles. However, we do not hold on the basis of the balance of this record that, because the appellee testified that he did not read with great care the warning that Lee Cylinders placed on the tank, he therefore would have disregarded any warning placed on the valve and dealing specifically with the hidden hazard that the automatic safety release presented. Given that the jury is properly the exclusive judge of the credibility of the testimony presented, and of the weight to be accorded that testimony, we conclude from this record that the apportionment of responsibility was proper. We overrule the appellant’s third point of error.

The appellant’s fourth point of error asserts the trial court erred in admitting testimony of other claims against the appellant. In this connection, the appellant presented testimony from the vice-president of Lee Cylinders that it had never received any other complaints about the manufacturer or operation of the appellant’s valve. To rebut this evidence, the appellee presented two sources of testimony. First, it offered the testimony of the president of Lee Cylinders, that Lee Cylinders had received complaints in the field about the valve, and that it was common knowledge that claims had been filed against the appellant regarding its valve. The appellee also recalled his expert witness, who testified that part of the basis for his expert opinion that the appellant should have affixed an adequate warning to the valve itself was the fact that there had been complaints from users about the automatic safety release. The trial court admitted this testimony over the appellant’s objection, and the appellant now contends that this evidence was improper and prejudicial.

We disagree with the appellant’s contention. The general rule in this state is that any evidence is relevant to a proposition if it tends to prove or disprove any material fact about that proposition. Lone Star Gas Company v. State, 137 Tex. 279, 153 S.W.2d 681, 699-700 (Tex.1941). This evidence was relevant, as it tended to prove or disprove a material fact in this dispute; namely, whether the appellant had notice of any prior or continuing problems with the valve assembly. The appellee offered this testimony in direct rebuttal of the appellant’s evidence for the converse proposition. Where testimony raises a question of fact, the opposing party may offer relevant evidence to rebut that testimony. Roy v. Sherman, 299 S.W.2d 329, 333 (Tex.Civ.App.-Dallas 1957, writ ref’d n.r.e.).

The appellant’s fourth point of error is overruled, and the judgment of the trial court is affirmed.

EVANS, C.J., and DOYLE, J., also sitting.


author: DUGGAN, Justice.

text:
    AATCO TRANSMISSION CO., Appellant, v. Demetrius HOLLINS, Appellee.
    No. 01-84-0234-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dee. 6, 1984.

      Audley H. Heath, Houston, for appellant.
    Chester L. Thornton, Boston & Thornton, Houston, for appellee.
    Before JACK SMITH, DUGGAN and KEITH, JJ.
   OPINION

DUGGAN, Justice.

This is an appeal from a bench trial judgment awarding $3,000 damages to the ap-pellee automobile owner on his action for negligent bailment against the appellant transmission company, and entering a take nothing judgment against the appellant’s shop manager. Appellee contracted with appellant to have his automobile transmission replaced. While his car was in appellant’s shop, it was stolen. When appellee came to pick up his car, he was informed of the theft, and told that his car was found at a salvage yard. The engine, transmission, tires, accessories, and hood had been removed from the car, and the body of the car had been burned. Appellant brings three points of error on appeal.

In its first point, appellant alleges that the trial court erred in finding that it had not rebutted the presumption of negligence. Where a bailed chattel is not returned, or is returned in a damaged condition, a prima facie case of negligence is established, and the bailee must rebut this presumption of negligence. Buchanan v. Byrd, 519 S.W.2d 841 (Tex.1975). In order to rebut this presumption, the bailee must prove that the loss or damage resulted from some cause other than his own negligence, and he must establish that he used due care in protecting the chattel. Allright, Inc. v. O’Neal, 596 S.W.2d 208 (Tex.Civ.App.-Houston [14th Dist.] 1980, writ dism’d). The standard of care is the care a reasonable and prudent person would use in protecting the chattel. Allright, Inc. v. Elledge, 515 S.W.2d 266 (Tex.1974); Rudolph Chevrolet Co. v. Fullbright, 449 S.W.2d 355 (Tex.Civ.App.-El Paso 1969, no writ). When the bailee shows that the chattel was stolen, he has sufficiently explained the failure to return to the bailor, and the presumption of negligence is rebutted; the bailor must then go forward and prove that the bailee’s negligence proximately caused the loss. Allright Inc. v. Brubaker, 473 S.W.2d 593 (Tex.Civ.App.-Houston [14th Dist.] 1971, no writ).

Steve Whorton, the manager of appellant Aatco Transmission, testified that Aatco’s shop and yard are completely surrounded by an eight foot high chain link fence topped with barbed wire. The owner of the company testified that the shop had a burglar alarm system, but the system was faulty and had been turned off on the night in question. The shop is operated in a steel building with two metal doors for customers and two sliding doors to allow cars to drive into the building. Whorton testified that while a car is being worked on, the keys are kept in the ear, but are removed at night and put in a desk drawer in the office. He said that he personally removed the keys from appellee’s car on the evening before the theft, so that he was certain that the keys were not in it when it was stolen. However, appellee and his sister testified that someone at the shop told them that the keys had been left in the car and the car had been left unlocked on the night in question.

On the night appellee’s car was stolen, the thief broke the deadbolt on the back door to the building and cut a padlock off the sliding doors to drive the car out of the building. The thief also drove over or pulled down the fence gate to get the car out of the yard. Nothing else was stolen from the shop, although other cars were inside, and at least one other car had its keys in the ignition.

Appellant presented evidence sufficient to rebut the presumption of negligence. However, in its findings of fact, the trial court found that appellant was negligent in leaving the car unlocked and the keys in the ignition, and that such negligence was a proximate cause of the theft. The trial court did not rely on the presumption of negligence, but found negligence from the evidence presented. Appellant’s first point of error is overruled.

In its second point of error, appellant alleges that the trial court erred in finding that the failure to remove the keys from appellee’s car was the proximate cause of the loss of appellee’s car. Appellee and his sister both testified that the man in appellant’s shop who told them the keys had been left in the car was the assistant manager. Neither knew his name, and both testified that the man was neither Steve Whorton nor Aatco’s owner nor anyone else present in court. Appellant introduced evidence that no one in its office had the title of “assistant manager,” and Whorton testified specifically that he took the keys from the car on the night before the theft and put them in the desk drawer inside the office. Although appellant argues that ap-pellee’s testimony regarding the statement allegedly made to him by the “assistant manager” is hearsay, and is not competent to prove that the keys were left in the car on the night in question, appellant did not object to this testimony when it was elicited.

The rule in Texas in the past has always been that hearsay is no evidence; even without an objection it had no probative value and could not support a finding or a judgment. See Cooper Petroleum Co. v. LaGloria Oil & Gas Co., 436 S.W.2d 889, 891 (Tex.1969). As of September 1, 1983, this rule was changed, and the instant case was tried on February 2, 1984. Rule 802 of the Texas Rules of Evidence now provides that inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay. Adapted from the Federal Rules of Evidence, the new Texas rule has yet to be interpreted by the state courts. We look therefore to federal case law to aid us in our construction. In Perryman v. Johnson Products Co., 532 F.Supp. 373, 376 (N.D.Ga.1981), the court held that unobject-ed-to hearsay was admissible and could be considered in arriving at “ultimate conclusions.” See also National Labor Relations Board v. International Union of Operating Engineers, 413 F.2d 705 (9th Cir.1969); Hayden v. Chalfant Press, Inc., 281 F.2d 543 (9th Cir.1960). So in the case at bar, the unobjected-to hearsay regarding the car keys was admissible and had some probative value on the issue of negligence.

The trial court, as the trier of fact, was entitled to believe appellee’s evidence and to discount Whorton’s self-serving statements regarding the keys. The trial court is the judge of the credibility of the witnesses and the weight to be given their testimony. Southwestern Bell Telephone Co. v. Griffith, 575 S.W.2d 92 (Tex.Civ.App.-Corpus Christi 1978, writ ref’d n.r.e.). The trial court did not err in finding that appellant negligently left the keys in appellee’s car.

We must also determine whether the trial court was justified in finding that appellant's negligence was a proximate cause of the theft. Appellant’s security system presented two impediments to auto theft: a locked fence around the yard and a locked steel building in which the car was kept at night. Although the keys were left in the car, the locked fence and the locked doors presented serious obstacles to the would-be thief. Cf. Yancey v. Olvera, 518 S.W.2d 935, 941 (Tex.Civ.App.-San Antonio 1974, writ ref’d n.r.e.); (fenced lot with chain for gate, no night watchman, held: negligence); Wagner v. Betts, 496 S.W.2d 190 (Tex.Civ.App.-Tyler 1973, writ ref'd n.r.e.) (car left locked on lot, keys kept on pegboard in office, held: not negligence); Rudolph Chevrolet Co. v. Fullbright, 449 S.W.2d 355 (Tex.Civ.App.1969) (car left unlocked with keys inside, fenced lot, access by unknown persons, held: negligence). The thief in the case at bar overcame these obstacles and took appellee’s car, although there were other cars in the shop. Even though the keys to the other cars were kept in an unlocked desk drawer in an unlocked office, the trial court could reasonably have concluded that the presence of the keys in appellee’s car enhanced its accessibility and may have influenced the thief to pass up the other cars and take appellee’s car. We hold that there was sufficient evidence to support the trial court’s finding that appellant’s negligence was a proximate cause of the theft.

In its third point of error, appellant alleges that the trial court erred in overruling its objections to the admission of documentary evidence. Appellee sought to introduce seven exhibits which allegedly represented the cost of various accessories he had installed in his car. The original receipts for these items were in the glove compartment when the car was stolen, and appellee was unable to recover them from the burned shell of his car after the theft. The documents introduced by appellee represented estimates of the value of each item from the store from which it was purchased. The trial court admitted exhibits showing the estimated cost of the tires, the wheels, the stereo system, a paint job, and a tune up. Appellant objected to the exhibits on the basis of hearsay, and it now urges that the trial court erred in admitting these exhibits over its objections.

However, there is other evidence in the record of the value of appellee’s car. Appellee testified that his car was worth $5000 before the transmission failed, and that it was worth $3000 on the day it was towed into appellant’s shop. He also testified that he had 125 tapes in his car when it was stolen, and that each tape cost him at least $6.99. The owner of a car or other personal property may testify as to its value for the purpose of establishing damages. Chrysler Corp. v. McMorries, 657 S.W.2d 858, 867 (Tex.App.-Amarillo 1983, no writ); Chrysler-Plymouth City, Inc. v. Guerrero, 620 S.W.2d 700, 703 (Tex.Civ.App.-San Antonio 1981, no writ); Espinosa v. Schomberg, 601 S.W.2d 161, 164 (Tex.Civ.App.-Waco 1980, writ ref’d n.r.e.); Ford v. Texas Department of Public Safety, 590 S.W.2d 786, 787 (Tex.Civ.App.-Houston [14th Dist.] 1979, writ ref’d n.r.e.); Stewart v. Frazier, 461 S.W.2d 484, 486 (Tex.Civ.App.-Dallas 1970, no writ).

The trial court found that appel-lee’s car was worth $2375 and that his tapes were worth $625, for a total loss of $3000. The trial court, as the trier of fact, was entitled to base its finding on appel-lee’s opinion testimony as to the value of his car and tapes. Cortez v. Mascarro, 412 S.W.2d 342, 344 (Tex.Civ.App.-San Antonio 1967, no writ). Therefore, even if the exhibits in question were inadmissible hearsay, any error in admitting them was harmless, as the trial court had before it sufficient evidence on which to base its findings of the value of appellee’s loss. Appellant’s third point of error is overruled.

The judgment of the trial court is affirmed.


author: BULLOCK, Justice. JACK SMITH, Justice,

text:
    Marvin E. WILLARD, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-0051-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 11, 1984.
    Rehearing Denied Dec. 31, 1984.

      Kenneth E. Houp, Jr., Frank Maloney & Associates, Austin, for appellant.
    Travis B. Bryan, III, Sp. Prosecutor for the State of Tex., Youngkin, Catlin, Bryan & Stacy, Bryan, for appellee.
    Before BULLOCK, WARREN and JACK SMITH, JJ.
   OPINION

BULLOCK, Justice.

This is an appeal from a jury conviction for the offense of murder and a jury sentence of thirty years’ confinement and a $10,000.00 fine.

On December 10, 1982, Jean Willard, appellant’s estranged wife, and the victim, who was Mrs. Willard’s adult daughter, went together to appellant’s house in order to remove some of Mrs. Willard’s property. Mrs. Willard testified at trial that when they arrived at the house, appellant physically attacked both of them, striking them ■with his hands and feet and several heavy objects. She then testified that appellant left the house, took a .357 magnum pistol from among the many firearms he kept at his house and in his car, and shot and killed the victim. Mrs. Willard also testified that appellant then abducted her in an attempt to escape to Mexico, while his adult children stayed on the premises. It was the state’s position that appellant’s family then altered the crime scene to make it appear that appellant had killed the victim in self-defense.

Law enforcement officials found the victim’s body by her truck with a sawed-off shotgun lying approximately 3½ feet away. Mrs. Willard testified at trial that the shotgun had not been in the possession of the victim, that it was one of appellant’s weapons, that he routinely kept it in the house, and that she and the victim had parked the truck in a different location when they arrived at the property. During a second search of the premises, made without a search warrant but with the permission of appellant’s adult son, law enforcement officials found dried blood, identified as the victim’s, in the spot where they had originally found the truck. The state contended from this evidence that appellant’s family had moved the victim’s body and the truck after the shooting as part of their scheme to bolster appellant’s claim of self-defense.

The jury evidently disregarded appellant’s claim of self-defense and convicted appellant.

Appellant presents four grounds of error on this appeal:

(1) That the trial court improperly allowed Mrs. Willard to testify before the jury;

(2) That the trial court improperly excused a prospective juror on its own motion;

(3) That the trial court improperly charged the jury regarding the murder; and

(4) That the trial court improperly admitted evidence obtained as the result of an illegal search of appellant’s property.

Appellant contends that, because Mrs. Willard had not obtained a decree of divorce at the time of trial, she was by statute incompetent to testify against appellant. Appellant objected to the state’s attempt to use Mrs. Willard as a witness against him, but the trial court allowed her testimony. The state contends that, given the facts of this case, Mrs. Willard was competent to testify at trial.

Neither husband or wife shall, in any case, testify as to communications made by one to the other while married. Neither husband or wife shall, in any case, after the marriage relation ceases, be made witnesses as to any communications made while the marriage relation existed except in a case where one or the other is on trial for an offense and a declaration or communication made by the wife to the husband or by the husband to the wife goes to extenuate or justify the offense. The husband and wife may, in all criminal actions, be witnesses for each other, but except as hereinafter provided, they shall in no case testify against each other in a criminal prosecution. However, a wife or husband may voluntarily testify against each other in any case for an offense involving any grade of assault or violence committed by one against the other or against any child of either under sixteen (16) years of age, or in any case where either is charged with incest of a child of either, or in any case where either is charged with bigamy, or in any case where either is charged with interference with child custody, or in any case where either is charged with non-support of his or her spouse’s minor child [emphasis supplied].

Tex.Code Crim.Proc.Ann. art. 38.11 (Vernon 1981). Article 38.11 does create, as appellant suggests, a disqualification for a spouse when that spouse seeks to testify against his or her mate. However, we do not agree with appellant that this disqualification is absolute; quite the contrary, Article 38.11 expressly limits this disqualification. The question in the instant case is whether the situation demonstrates that appellant committed an offense involving an assault or violence against Mrs. Willard.

Appellant contends that the facts of this case do not establish such assault and urges us to rule that Mrs. Willard’s testimony was incompetent on the basis of Young v. State, 603 S.W.2d 851 (Tex.Crim.App.1980). The focus of appellant’s argument is that, since the state did not charge appellant with any kidnapping or attempted kidnapping of his wife, or with any physical assault upon her, it could not at trial present testimony by Mrs. Willard of the events surrounding the victim’s killing. The state contends that the events surrounding this killing establish clearly that appellant committed a violent assault upon his wife, and that the circumstances of this homicide so clearly tie together that assault and the actual killing of the victim that, despite the absence of a formal charge regarding the assault against Mrs. Willard, she was competent to testify against appellant under the standard set forth in Garcia v. State, 573 S.W.2d 12, 15 (Tex.Crim.App.1978). We agree with the state.

The determination of this ground of error requires that we evaluate and attempt to reconcile, insofar as it is possible for us to do so, what appears to be an inconsistency in the interpretation of Article 38.11 created by these two cases. In Garcia v. State, the defendant appealed a conviction for indecency with the sixteen-year-old child of the witness spouse. At trial, the spouse testified to other acts of sexual misconduct with the couple’s minor children that the children themselves had already testified to. In overruling the defendant’s claim that the spouse should have been incompetent to testify under Article 38.11, the Court of Criminal Appeals rejected the contention that such testimony is competent only if going to offenses charged in the indictment, stating:

[T]he question of whether an offense “involves” any grade of assault does not depend upon the allegations in the charging instrument but must be determined from the facts and circumstances in the particular case ... Since it appears that we are not bound by the allegations in the charging instrument to determining whether or not the case involves “any grade of assault or violence,” we must determine that issue from the facts presented.

Garcia v. State, 573 S.W.2d at 15. After noting the testimony the spouse had given, testimony corroborating allegations of other offenses against other children in the household, the Court of Criminal Appeals concluded that, “This testimony outlines a fact situation which would constitute an assault under [the Penal Code].” Id. at 15.

In Young v. State, the defendant appealed a conviction for aggravated assault, asserting that his wife was not competent to testify against him. The defendant in Young had committed the offense by ramming a car driven by another man, but in which his wife was an occupant. The wife apparently suffered some injury in the collision, and the state argued that such injury allowed her to testify against her husband, notwithstanding the fact that the state charged the defendant only with the aggravated assault against the other man in the automobile, and did not mention the wife’s injuries in any manner in the indictment. The Court of Criminal Appeals held that the wife was incompetent to testify under Article 38.11. In its opinion on the state's Motion for Rehearing, the Court expressly declined to apply the test set forth in Garcia v. State, stating:

The exceptional situation at issue in Garcia, supra, however, was ... ‘or against any child of either under 16 years of age’ . . . The dispositive question . . . was whether the alleged act of indecency with a child is ‘an offense involving any grade of assault ... committed ... against any child . . .’ [emphasis in the original]

Young v. State, 603 S.W.2d at 853.

In the instant case, it is appellant’s position that Young effectively displaces Garcia regarding the test for whether a spouse may testify under the “assault” exceptions to Article 38.11. In appellant’s view, it is the indictment and the indictment alone that determines a spouse’s competence to testify under this provision of the Code of Criminal Procedure. The state contends that the basic test established in Garcia, that of looking at the entire facts of the case, is still valid; under that test, the state claims, the events of December 10, 1982 clearly show that appellant engaged in violent criminal behavior against his wife, both prior and subsequent to his killing of the victim, sufficient to make his wife a competent witness against him. We agree with the state’s interpretation of the two foregoing cases.

We note, first, that nothing in Young holds the basic test, that of looking to the total circumstances of the events, has become altered in any manner since the Court of Criminal Appeals espoused it in Garcia; on the contrary, it appears that, in Young, there were not enough facts to establish that the spouse’s testimony was permissible under Article 38.11, while in Garcia those facts engendering permissibility did exist in the record. It may be true that the facts did exist in Young, and that the Court of Criminal Appeals has decided that the standard in Garcia was overly broad, or for some other reason inappropriate. If this is the case, then we feel it is for that court to resolve any conflict between these cases. For the instant case, however, we find nothing in Young that would compel us to discard the standard in Garcia.

We note, secondly, that the opinion delivered by the Court of Criminal Appeals in Young v. State is almost devoid of facts describing the events surrounding the defendant’s commission of and conviction for the offense charged and is equally silent regarding the wife’s testimony, while that of Garcia v. State gives considerable detail of the spouse’s testimony and the circumstances surrounding the defendant and his family. This strengthens our conclusion that the Garcia standard remains operative, and that it was a substantial difference in either the quantity or nature of the factual material in Young that led the Court of Criminal Appeals to its conclusion.

Thus, we view the witness’ testimony in the instant case in light of the standard established in Garcia v. State. Considering the testimony in that light, we conclude that Mrs. Willard testified to assault, aggravated assault, and aggravated kidnapping committed against her by appellant. All of these actions are offenses proscribed by our criminal statutes, and all are of their very nature violent offenses. Tex. Penal Code Ann. Sections 22.01, 22.02, and 20.04 (Vernon 1981). Clearly, therefore, Mrs. Willard presented testimony on the stand that depicted offenses committed by appellant involving assaults upon her. Moreover, since her testimony about these offenses was an integral part of the total circumstance that occurred on December 10, 1982, we hold that this testimony was proper to present the jury with the res gestae of the offense. See, e.g., Butler v. State, 645 S.W.2d 820, 824 (Tex.Crim.App.1983).

Since the evidence presented by Mrs. Willard demonstrated appellant’s unjustifiably violent and lethal conduct upon herself and the victim, we agree with the state that Mrs. Willard’s testimony described the violent, criminal transactions that surrounded appellant’s murderous act. We therefore overrule appellant’s first ground of error.

During voir dire, questions by the prosecutor to a specific juror established clear bias by that prospective juror in favor of appellant. The juror acknowledged that he was a close friend of appellant, and that he could not in good conscience convict appellant or give an objective verdict in the case. Having heard this testimony, the trial court excused the juror from further service without a challenge for cause by the state. Appellant’s counsel raised the objection “to the cause.”

Appellant claims that this sua sponte dismissal of the juror constituted reversible error. The state counters that appellant failed to preserve this question for review because of the imprecise objection raised at trial. We agree with the state.

The examination and cross-examination of this prospective juror created the impression that the juror was biased in favor of appellant and therefore disqualifiable under Tex.Code Crim.Proc. art. 35.16(a)(9); it was also arguable that the juror could overcome his bias and still be an effective juror. Thus, the response of appellant’s counsel to the trial court’s sua sponte dismissal of the juror is open to at least two interpretations. By objecting “to the cause,” appellant’s counsel was objecting in equal likelihood either to the trial court’s action in dismissing the juror without waiting for a challenge for cause, or to the trial court’s dismissal of the juror at all, appellant’s claim being that the examination of the juror did not reveal a basis for disqualifying under art. 35.16.

Appellant’s counsel made a vague objection equally susceptible to two different and dissimilar interpretations. An objection on appeal must comport with that raised at trial or the defendant waives error. Graham v. State, 546 S.W.2d 605, 608 (Tex.Crim.App.1977).

We overrule appellant’s second ground of error.

The trial court charged the jury as follows:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 11th day of December, 1982, in Burleson County, Texas, the defendant, Marvin Willard, did then and there intentionally or knowingly cause the death of an individual, Lynn Pinyozy, by shooting her with a firearm, as alleged in the indictment, and that the defendant, in so acting, was not acting under the immediate influence of sudden passion arising from an adequate cause, or did then and there intentionally, intending to cause serious bodily injury to an individual, Lynn Pinyozy, commit an act clearly dangerous to human life, to wit, by shooting the said Lynn Pinyozy, with a firearm as alleged in the indictment, and that the defendant, in so acting, was not acting under the immediate influence of sudden passion arising from an adequate cause, then you will find the defendant guilty of murder.
Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of murder and proceed to consider the next paragraph of this charge.

The next paragraph of the charge was a proper charge to the jury regarding voluntary manslaughter.

Appellant’s position on appeal is that the trial court should have presented this charge to the jury in separate paragraphs; it is appellant’s belief that the paragraph, as phrased, allowed the jury to split its vote between murder by intending to kill and murder by intending to cause serious bodily injury such that the twelve individuals who comprised the jury needed only to agree that appellant had done something intentionally. This, appellant contends, was fundamental error. We disagree.

A person commits [murder] if he:

(1) intentionally or knowingly causes the death of an individual; [or]
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life but causes the death of an individual.

Texas Penal Code Ann. art. 19.03(a)(l)-{2) (Vernon 1981).

The record reflects that the trial court properly applied the law to the facts of the case, and that it required the jury to find all necessary elements of the offense beyond a reasonable doubt, in order to convict appellant. The charge did not permit the jury to convict appellant of murder by considering jointly instead of separately different means of killing the victim, nor did it permit the conviction after joint consideration of different offenses. Thus, we conclude that this charge was proper. See Riley v. State, 658 S.W.2d 818 (Tex.Crim.App.1983).

Even if this charge was defective, though, we note that any impropriety was not, as appellant claims, fundamental. Thus, appellant’s failure to object to the charge waived any issue on appeal. Archie v. State, 615 S.W.2d 762, 766 (Tex.App.1981). We overrule appellant’s third ground of error.

Appellant contends in his fourth and final ground of error that law enforcement authorities entered the property for their second search without having secured a search warrant, and that the trial court should therefore have excluded any evidence obtained during that search.

This ground of error is without merit, since the record clearly establishes that the authorities, before entering the property, secured the permission of appellant’s adult son, who was living on the property and had equal control over and use of the premises. Appellant’s son thus had ample authority to give the officers permission to search the premises without a warrant. Swinney v. State, 529 S.W.2d 70 (Tex.Crim.App.1975). Appellant being unable to point to any other action by the authorities during this search that was improper, we hold that the search was proper, and overrule appellant’s fourth ground of error.

The sequence of events in this case demonstrates that appellant engaged in a violent assault upon his estranged wife, and that Mrs. Willard’s testimony was also necessary in order for the jury to understand the sequence of events surrounding the murder.

We overrule the appellant’s grounds of error and affirm the judgment of the trial court.

JACK SMITH, J., dissents.

JACK SMITH, Justice,

dissenting.

I respectfully dissent. The majority opinion attempts to distinguish the instant case from the holding of the Texas Court of Criminal Appeals in Young v. State, 603 S.W.2d 851 (Tex.Crim.App.1980). Although the reasoning set forth by my brethren is persuasive, I am not persuaded.

The issue in Young and the instant case is identical; that is, may a wife be called to testify against her husband when she is not the injured party being tried?

In Young, the Court of Criminal Appeals, in its original opinion and in its opinion on motion for rehearing, emphasized that the wife could not testify against her husband because “The exception in the statute [Art. 38.11] that a wife testify against another [spouse] for injuries committed against the other [spouse] does not apply in this case because the wife was not the injured party in the case being tried.” Young at 852 and 853.

In the instant case, the appellant was being tried for the murder of his wife’s daughter; his wife was not the injured party. The record reflects that the wife was attacked, shot at, and kidnapped in the course of events that occurred when her daughter was murdered. Although it seems grossly unjust, under the facts of this case, not to permit the appellant’s wife to testify against him, Art. 38.11, Tex.Code Crim.P. prohibits such testimony. It is the prerogative of the legislature to add further exceptions to Art. 38.11, not the courts.

I do not believe that the facts of this case are distinguishable from Young. I would sustain appellant’s ground of error one, and hold that the trial court erred in admitting appellant's wife’s testimony. I would reverse and remand.


author: EVANS, Chief Justice.

text:
    Donald Dwayne JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-0122-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 13, 1984.

      Charles Baird, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., James C. Brough, Lori Millberg, Harris County Asst. Dist. Attys., Houston, for appellee.
    Before EVANS, C.J., and JACK SMITH and DUGGAN, JJ.
   OPINION

EVANS, Chief Justice.

The court, in a non-jury proceeding, found the appellant guilty of attempted capital murder, enhanced with one previous conviction for robbery by assault, and assessed his punishment at 50 years confinement. We affirm.

In three grounds of error, the appellant contends: (1) that his arrest was illegal, (2) that the identification procedure after his arrest was unnecessarily suggestive and conducive to irreparable misidentification, and (3) that he was denied effective assistance of counsel at trial.

On the evening of June 4, 1983, a man carrying a rifle and a paper sack was seen in the parking lot of the Kroger grocery store at the comer of Cullen and Polk streets in Houston. The man walked up to a parked car and at gunpoint demanded that the sole occupant put all his money into the paper sack. After the occupant said he had no money, the man poked him in the eye with the barrel of the rifle, causing serious eye damage. When the injured man got out of the vehicle and attempted to flee, the assailant shot him from behind and ran away.

The crime was witnessed by three people other than the victim. Two were sitting in another car in the same parking lot, and the third was working in a warehouse across the street. An officer of the Harris County Constable’s Department was patrolling the neighborhood nearby when he received a description of the gunman over his CB radio. Shortly thereafter, the officer saw a man fitting the assailant’s description running along the street, and he took him into custody, handcuffed him, and placed him in the patrol car. He then drove the suspect back to the Kroger store to see if the eyewitnesses could identify him. The witnesses had been told that the police were bringing a possible suspect back for them to view, and, after looking in the back seat of the officer’s patrol car, all three persons identified the handcuffed appellant as the man they had seen earlier.

The appellant’s trial attorney did not try to suppress the showup identification testimony, nor did he object to the appellant’s arrest or identification at trial. However, in view of appellant’s complaint of ineffective assistance of trial counsel, we have decided to consider the appellant’s first two grounds of error despite the lack of objection.

The test for determining probable cause for a warrantless arrest is whether, at the moment of arrest, the knowledge of the arresting officer that is based on reasonably trustworthy information 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). In reviewing the sufficiency of probable cause, the court will look to the facts and circumstances of each particular case. Woodward v. State, 668 S.W.2d 337, 345 (Tex.Crim.App.1982) (op. on reh’g).

In the case at bar, the officer testified that he had received reliable and credible information from this particular member of the Eastwood area CB patrol group in the past. This testimony combined with the corroborating circumstances surrounding appellant’s arrest satisfies the requirement that the officer based his knowledge on reasonably trustworthy information. Lyles v. State, 582 S.W.2d 138, 143 (Tex.Crim.App.1979). The information received was that a Kroger’s store, located just several blocks away, had been the site of a robbery by a black male, approximately 6'1", heavy build, wearing dark pants and a wet gray T-shirt. The officer testified that he observed a person of a similar build and wearing similar clothing, running along the street. At that time, the man was carrying the rolled up gray T-shirt under his arm. The officer then saw the man stop and jog in place on the median of the street, after the man apparently noticed the presence of another police car parked in the vicinity. When the man turned to run away from the other police car, the officer of the Constable’s Department emerged from his vehicle and ordered the appellant to stop, but the appellant threw the T-shirt down on the ground and continued to run away. After a short pursuit, the appellant stopped, but he could not produce any identification and was taken into custody. These facts and circumstances were sufficient to warrant a reasonable and prudent person in believing that the appellant had committed the crime at the nearby Kroger store, and there was sufficient probable cause to justify the officer’s arrest of the appellant without a warrant.

The practice of showing suspects singly to crime witnesses for identification has been widely condemned, but a one-on-one showup identification is not illegal per se. Ortega v. State, 628 S.W.2d 539 (Tex.App.-Amarillo 1982, no pet.). Such an identification procedure may be appropriate when the confrontation occurs at the scene of the crime shortly after the offense, because the witness’ memory is still fresh and accurate. Garza v. State, 633 S.W.2d 508, 512 (Tex.Crim.App.1981) (op. on reh’g). Also, the police can release innocent suspects after exoneration and continue their search while the perpetrator is still in the area. Id.

To determine whether a single showup identification violates due process, the court must examine whether the confrontation was (1) unnecessarily suggestive, and (2) conducive to the irreparable misidentification of the defendant. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967); Garza v. State, 633 S.W.2d at 512-13.

The very nature of a single showup identification conducted in the presence of police officers is suggestive, but the real inquiry in such a case is whether the particular confrontation was so unnecessarily suggestive as to deny due process. Ortega v. State, 628 S.W.2d at 541.

In the instant case, the witnesses were asked to wait at the scene of the crime, because the police were bringing over a suspect for identification purposes. The appellant was positively identified while sitting handcuffed in the back seat of a red-brown Chevrolet with overhead lights and marked with a Constable’s Department shield on the door. Police officers were present, and the witnesses did not individually view the suspect.

Although one witness made a strong identification, three others identified the appellant chiefly because of his build and the fact that the clothes he was wearing matched those of the assailant. The victim of the offense identified the appellant in court, despite his testimony that the assailant had worn a partial, pantyhose-type mask and despite his initial inability to identify the appellant at the scene of the crime. The forklift operator, who had been working across the street from the Kroger store, identified the appellant, but he admitted that he did not get a good look at the assailant’s face. Another identification witness testified that he was not paying attention to the gunman before the shot, because he initially assumed the person was a security guard. The totality of these circumstances indicates that the identification procedure may have been unnecessarily suggestive.

The court must next decide whether the confrontation was so likely to result in irreparable misidentification that the appellant was denied due process of law. In making this determination, the court is guided by five factors: (1) the witness’ opportunity to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the witness’ prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2248, 2253, 53 L.Ed.2d 140 (1977).

Viewing the evidence in light of these factors, we conclude that the identification procedure did not result in irreparable misidentification. With the exception of the victim, who only saw his attacker masked, all witnesses had adequate opportunity to see the assailant before, during, and after the crime. It is undisputed that the street and parking lot were very well-lit and that the assailant passed within 35 feet of all witnesses. Two of the witnesses said they were not paying close attention until after they heard the shot. However, Ms. Murray testified that she watched the gunman closely as soon as he came into view and that he walked from the scene of the shooting directly toward her automobile. All witnesses testified that they had noticed the assailant’s height, build, and clothing, and the appellant was wearing this same type of clothing at the time he was arrested several blocks away from the store. Ms. Murray showed no hesitation in identifying the appellant as the gunman, either at the showup confrontation or at trial, and she testified that there was no doubt whatsoever in her mind that he was the same man whom she saw shoot the victim. Finally, the appellant was taken to the scene of the crime within 15-20 minutes of the shooting, at a time when the witnesses’ memories of the assailant were still fresh and accurate. Thus, we hold that the suggestive identification was not conducive to and did not result in irreparable misidentification.

We overrule the appellant’s first and second grounds of error.

In his third ground of error, the appellant contends that his court-appointed counsel failed to object to or try to suppress the unnecessarily suggestive pretrial identification or the allegedly tainted in-court identification. Additionally, he argues that his attorney should have asked for a continuance to find a subpoenaed witness who did not appear. Finally, he complains that his trial counsel did not thoroughly investigate the facts or question his own defense witnesses before trial.

The right to counsel means a right to reasonably effective assistance. Ex parte Duffy, 607 S.W.2d 507 (Tex.Crim.App.1980). Claims of ineffective assistance must be decided in light of the totality of the representation, rather than because of isolated failures to object. Archie v. State, 615 S.W.2d 762 (Tex.Crim.App.1981). Furthermore, allegations of ineffective assistance must be firmly founded in the record. Faz v. State, 510 S.W.2d 922 (Tex.Crim.App.1974).

For the reasons stated earlier, we overrule the appellant’s contentions that his counsel was ineffective because he failed to object to or try to suppress the allegedly illegal arrest or the pretrial identification procedure. Although appellant’s attorney did not ask for a continuance to find a witness who did not appear, the record shows that he did arrange for another witness to testify for the defense instead. The appellant contends that his trial counsel should have prevented appellant’s employer, a defense witness, from testifying that appellant was not at work on the Saturday during the day, before the crime was committed. The appellant testified that he had been at work that day. However, the record shows that the attack occurred almost eight hours after the appellant claims he finished work, and even if undisputed, his whereabouts during the day would not have provided him with an alibi for the crime that night.

We overrule the appellant’s third ground of error.

The judgment of the trial court is affirmed.


author: WARD, Justice.

text:
    Delynda Ann Ricker Barker REED, Appellant, v. Princess Ann Ricker CAMPBELL, Individually and as Administratrix of the Estate of Prince Ricker, deceased, Appellee.
    No. 08-83-00022-CV.
    Court of Appeals of Texas, El Paso.
    Dec. 19, 1984.
    Rehearing Denied Jan. 23, 1985.

      R. Stephen McNally, Austin, for appellant.
    Paul McCollum, Kathleen McCulloch, Shafer, Gilliland, Davis, McCollum & Ashley, Odessa, for appellee.
    Before WARD, OSBORN and SCHULTE, JJ.
   OPINION

WARD, Justice.

The Plaintiff Delynda Ann Ricker Barker Reed appeals from a take-nothing judgment rendered against her in her suit to establish a share in the estate of her natural father Prince Ricker. Prince Ricker died intestate and the Defendant Princess Ann Ricker Campbell, a legitimate child, was appointed administratrix of the estate. Trial was to a jury which found that the Plaintiff was Prince's child but that her mother was never validly married to Prince. We will affirm the judgment of the trial court.

Prince Ricker and Alice Rosemary Lawson married in 1954. Two daughters were born of this marriage, Princess Ann and Rosemary Jane. Alice Rosemary left Prince Ricker in September, 1957. The Plaintiff’s mother, Annabel Boutwell, claimed that she and Prince Ricker were ceremonially married in Juarez, Mexico, on November 24 or 27, 1957, but it was not until February 28, 1958, that a divorce dissolved Ricker’s first marriage to Alice Rosemary. Four days before the Plaintiff’s birth, Annabel Boutwell changed her last name to Ricker. The Plaintiff was born on November 1, 1958, and her mother then married Jerry Barker in February, 1959. He later adopted the Plaintiff. On October 20, 1958, Prince Ricker married Jeri Laverne, which marriage was dissolved by divorce in January, 1960. In April, 1960, Prince Ricker married Marilyn Watts and their marriage lasted until 1967. Three children were born of this marriage, they being Prince Jr., Brett and Mark.

Prince Ricker was a chronic alcoholic with associated mental problems and was judicially declared non compos mentis in July, 1968. He died intestate on December 22, 1976, and the Defendant was appointed administratrix of his estate.

The Plaintiff filed her application to determine heirship in February, 1979. The Plaintiff contended that she was the legitimate child of Prince Ricker and was entitled to inherit from his estate. She alleged that upon the removal of the preexisting impediment to the marriage of Prince Rick-er and her mother, which was his divorce in February, 1958, from Alice Rosemary, the relationship between Prince and the Plaintiff’s mother became a putative or eommon-law marriage.

The Defendant contends that any relationship between the Plaintiff’s mother and Prince was merely meretricious, being no marriage at all, and any relationship they may have had did not ripen into a putative or common-law relationship when Prince Ricker and Alice Rosemary Lawson divorced. The Defendant and the four other children of Ricker’s valid marriages claimed to be Ricker’s only heirs at law.

By their answers to the Special Issues submitted, the jury determined:

1. The Plaintiff was a child of Prince Ricker.
2. Ricker and Boutwell did enter into a ceremonial marriage on November 24 or 27, 1957.
3. On November 24 or 27, 1957, Ricker and Boutwell did agree to be husband and wife.
4. The jury failed to find that Boutwell and Ricker did live together as husband and wife on or after the 24th or 27th of November, 1957 until June, 1958.
5. The jury failed to find that Boutwell and Ricker did hold themselves out to the public as husband and wife until June, 1958.
6. This issue asked if on November 24 or 27, 1957, Boutwell believed Ricker to be unmarried, and the jury answered “She Believed He Was Married.”

As previously stated, the trial court received the jury’s verdict and based thereon entered a take-nothing judgment against the Plaintiff.

Recent developments in the inheritance rights of illegitimate children have been well documented in cases pertinent to this appeal such as Batchelor v. Batchelor, 684 S.W.2d 71 (Tex.App.-Fort Worth 1982, writ ref’d n.r.e.); Johnson v. Mariscal, 620 S.W.2d 905 (Tex.Civ.App.-Corpus Christi 1981), writ refd n.r.e., 626 S.W.2d 737, (Tex.1982), cert denied, 458 U.S. 1112, 73 L.Ed.2d 1375, 102 S.Ct. 3496 (1982); Winn v. Lackey, 618 S.W.2d 910 (Tex.Civ.App.-Eastland 1981, no writ) and Bell v. Hinkle, 607 S.W.2d 936 (Tex.Civ.App.-Houston [14th Dist.] 1980), cert denied, 454 U.S. 826, 70 L.Ed.2d 100, 102 S.Ct. 115 (1981). In 1955, and again in 1977, the Texas Legislature provided that while illegitimate children could inherit from their mothers under the laws of descent and distribution, they had no right to inherit from their father. That situation changed, however, with the passage by the Legislature in 1979 of Section 42(b) of the Texas Probate Code, effective August 27, 1979. An illegitimate child can now inherit from his father under three circumstances:

1. If he is born or conceived before or during the marriage of his father and mother;
2. If he is legitimized by court decree as provided in Chapter 13 of the Family Code; or
3. If the father has executed a statement of paternity as provided in Section 13.22 of the Family Code or a like statement properly executed in another jurisdiction.

Chapter 13 of the Family Code provides for a regular procedure through which a child may obtain a decree designating the alleged father as the father of the child in order to create a parent-child relationship. This may be an involuntary procedure pursuant to Sections 13.01 through 13.09, or it may be a voluntary legitimation pursuant to Section 13.21. If neither of these procedures is followed, a child may still be legitimated for the purposes of inheritance if the father has executed a written statement of paternity pursuant to Section 13.22 of the Family Code.

The Plaintiff’s first point argues that the Plaintiff was entitled to inherit from her father since the evidence conclusively established as a matter of law that the father recognized her as his child. To the extent that this point presents the argument that the evidence conclusively established that the father recognized the Plaintiff as his child, it will be overruled since the evidence was hotly contested on this issue. The instances of recognition by the father of the child are opposed in the main by the strong evidence of the deteriorated mental condition of the father during each occurrence as well as positive occurrences of nonreeognition. Considering only the evidence and the inferences arising therefrom that support the implied finding of the court on nonrecognition, the argument is overruled.

Since the evidence on recognition was disputed, the argument fails for the additional reason that the Plaintiff secured no finding on recognition. The issue was not requested. The matter has been waived. Rule 279, Tex.R.Civ.P.

Finally and regardless of the above, the Plaintiff still would not inherit as a “recognized” illegitimate child since Section 42(b) of the Probate Code provides the only methods by which an illegitimate child may inherit from her father. Being a “recognized” illegitimate is not one of them. Bell v. Hinkle, supra; Batchelor v. Batchelor, supra; Mills v. Edwards, 665 S.W.2d 153 (Tex.App.-Houston [1st Dist.] 1984, no writ). Johnson v. Meriscal, supra, held to the contrary, but the Supreme Court at 626 S.W.2d 737, expressed no opinion on that ruling and refused both applications for writ of error.

Mills v. Edwards, supra, is the last case to have passed on the “recognition” ground and it too held that Section 42(b) provides the only methods by which an illegitimate child may inherit from her father. Being a “recognized” illegitimate is not one of them. The first point is overruled.

The second point advances the same complaint as the first point except that it is in terms of great weight and preponderance of the evidence terminology. The point is overruled.

The third point is that the Plaintiff is entitled to inherit since to provide otherwise would be unconstitutional under the Equal Protection clauses of the State and Federal Constitutions. Under the rule of Winn v. Lackey, supra, and the out-of-state cases cited therein, the equal protection argument fails as Trimble v. Gordon, 430 U.S. 762, 52 L.Ed.2d 31, 97 S.Ct. 1459 (1977), has not been applied retroactively where the father died before the case came down and suit was filed afterwards. Even if the Plaintiff could claim under Section 42(b) as amended, her exclusion from the inheritance under that statute does not deny her constitutional equal protection since a rational state basis supports that legislation. Davis v. Jones, 626 S.W.2d 303 (Tex.1982); Mills v. Edwards, supra. The point is overruled.

A series of as a matter of law and great weight and preponderance of the evidence points attack the jury findings to Special Issue Nos. Four, Five and Six. In reviewing the record on the “as a matter of law” points, this Court must consider only the evidence and reasonable inferences arising therefrom which support the jury findings and must disregard all the evidence and inferences to the contrary. Estate of Claveria v. Claveria, 615 S.W.2d 164 (Tex.1981).

In regard to the claim of a good faith marriage by Annabel Boutwell, she admitted that as late as the summer of 1957, she knew of the common knowledge in the community where she lived that Prince Ricker was still married to Rosemary Lawson and as late as October, 1957, she did not know whether or not his divorce was final. She took no action to find out although the courthouse where the divorce had been filed was only two blocks from where she lived.

Annabel Boutwell testifies she and Rick-er were ceremoniously married in Juarez, but she did not know any of the witnesses present and claims she lost the marriage certificate evidencing the alleged marriage. Defendant’s Exhibit No. 31, consisting of two certificates of non-existence of records from Mexico, showed that the civil registries showed no marriage of Prince Ricker and Annabel Boutwell from January, 1957, to December, 1959, in the Mexican registries. Further, witness Trejo, an attorney from Juarez, Mexico, testified that Mexican law requires all marriage ceremonies to be performed by the civil registry judge and that all such ceremonies be recorded in the civil registry of the district. Further, Annabel Boutwell testified that from the time of the purported marriage until she and Prince Ricker ended their relationship in June, 1958, she continued to live with her mother in Big Springs and Ricker kept his residence in Stanton, Texas, where he was teaching school.

No documentary evidence was introduced to substantiate the claims that they held themselves out to the public as husband and wife, although Annabel testified that they made several trips to Austin, San Antonio, San Angelo and Midland and registered at the hotels as Mr. and Mrs. Prince Ricker. She admitted that she never filed a petition for divorce from him, and a teaching associate of Ricker’s testified that a search of the school records did not reflect whether Ricker was or was not married. He testified that he was under the impression that Ricker was single because he never mentioned a family. Annabel Boutwell never filed suit for child support nor did she ever attempt to establish the paternity of Prince Ricker during his lifetime.

Ricker told his last wife Marilyn Watts in the presence of his father that he never married Annabel Boutwell.

Thelma Barham, the mother of Rosemary Lawson Ricker, testified that she lived in Big Springs where Annabel Boutwell lived and she had at no time heard of any claim made by Annabel Bout-well that she was the wife of Prince Ricker. The “as a matter of law” points are overruled.

In reviewing the great weight and preponderance of the evidence points, we have considered all of the evidence. While the Plaintiff introduced evidence sufficient to support her contentions in regard to the challenged jury findings, we are of the opinion that the great weight and preponderance of the evidence points should likewise be overruled.

Based on the above, we therefore overrule Points of Error Nos. Four, Five, Seven, Eight, Nine, Ten, Eleven, Twelve and Thirteen.

The final point to be considered is Point of Error No. Six which complains of the action of the trial court in excluding certain testimony offered by Annabel Bout-well that she had been told by Prince Rick-er and by his first wife Alice Rosemary Lawson that Ricker was single at the time of the Juarez marriage. At the time that the offer was made as to a statement made by Alice Rosemary Lawson, the trial court first sustained the Defendant’s objection and then overruled the Defendant’s objection, and no further testimony was offered by the Plaintiff as to what the first wife had told her. At a later point, Annabel Boutwell began to testify as to what Ricker may have told her about his marriage status and the trial court then sustained the Defendant’s objections stating that he had previously sustained the Defendant’s objection as to what the first wife had told her and that he would sustain the Defendant’s same objection as to what Ricker told her of his marriage relationship. Regardless of this testimonial confusion regarding the two offers of testimony, no bill of exceptions on the excluded testimony was tendered by the Plaintiff on what either of the two people told Annabel Boutwell. The Plaintiff has failed to preserve any error. The point is overruled.

We have examined all of the Plaintiff’s points and they are all overruled. The judgment of the trial court is affirmed.