author: COUNTISS, Justice.

text:
    Pamela MAYO, Individually and as Guardian and Next Friend of Jeremy Mayo, Appellant, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Appellee.
    No. 07-83-0341-CV.
    Court of Appeals of Texas, Amarillo.
    March 29, 1985.
    Rehearing Denied April 16, 1985.

      Barry L. Hart, Moore & Associates, P.C., Odessa, for appellant.
    Cecil Kuhne, Crenshaw, Dupree & Mi-lam, Lubbock, for appellee.
    Before REYNOLDS, C.J., and COUN-TISS and BOYD, JJ.
   COUNTISS, Justice.

This is a workers’ compensation case. Tex.Rev.Civ.Stat.Ann. arts. 8306 et seq. (Vernon 1967 & Supp.1985). The jury failed to find that Joe Mayo was an employee or borrowed employee of Lawrence Ward Trucking, Incorporated, an insured of appellee Southern Farm Bureau Casualty Insurance Company. That verdict is challenged in this Court by Mayo’s widow, appellant Pamela Mayo, who advances three points of error. By the first two she contends her husband was Ward Trucking’s employee as a matter of law because (1) the truck being driven by Mayo when he was fatally injured was operating under the trucking company’s Railroad Commission permit and (2) the lease agreement under which the truck was operating expressly gave Ward Trucking the right of control over the vehicle and driver. By her third point, she contends the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. We affirm.

The points of error require an analysis of the evidence. Thus, certain established principles are applicable to each point. Mrs. Mayo had the burden of convincing the jury by a preponderance of the evidence, Industrial Indemnity Exchange v. Southard, 138 Tex. 531, 160 S.W.2d 905 (1942) that Mayo was an employee of Ward Trucking. Tex.Rev.Civ.Stat.Ann. art. 8309 § 1 (Vernon 1967). When the jury answered the special issues “[h]e was not an employee” and “[h]e was not a borrowed employee,” it was not finding those negatives as a fact; rather, it was failing to find the opposite, i.e., it was failing to find that Mayo was an employee or borrowed employee. The practical effect of that failure is to place a heavy burden on Mrs. Mayo, which she can discharge in two ways. First, she may convince us that she conclusively proved her husband’s status as an employee, a contention advanced by her first two points. The analysis to be applied to that contention when deciding whether the jury erred in failing to find the fact in question was stated in Texas & N.O.R. Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522, 530 (1947):

It is the province of the jury to decide the issues which are raised by conflicting evidence, but where there is evidence upon an issue and there is no evidence to the contrary, then the jury has not the right to disregard the undisputed evidence and decide such issue in accordance with their wishes.

Obviously that test requires us to review all of the evidence.

If Mrs. Mayo does not convince us that the jury ignored undisputed evidence and decided the case in accordance with their own wishes, she has one remaining option. She may convince us that the failure to find the facts she asserted was so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. Parrish v. Hunt, 160 Tex. 378, 331 S.W.2d 304, 306 (1960). We must also review all of the evidence in order to resolve that issue. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973). See generally, Calvert “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361, 364 (1960). Thus, a detailed statement of the evidence is appropriate and will follow our statement of the pertinent principles of workers’ compensation law.

When applying the foregoing tests to the evidence, we must be alert to events that are important in deciding a person’s status. The Workers’ Compensation Act defines employee as “every person in the service of another under any contract of hire, expressed or implied, oral or written_” Tex.Rev.Civ.Stat.Ann. art. 8309 § 1 (Vernon 1967). Several factors are relevant in deciding the employment question, such as the right to hire and discharge the worker, the carrying of the worker on social security and income tax withholding records, the providing of equipment, and the responsibility to pay wages. United States Fidelity & Guaranty Co. v. Goodson, 568 S.W.2d 443, 446 (Tex.Civ.App.—Texarkana 1978, writ ref’d n.r.e.). The ultimate test, however, is the right of the asserted employer to control the specifics of the worker’s performance. Anchor Casualty Company v. Hartsfield, 390 S.W.2d 469, 471 (Tex.1965); United States Fidelity and Guaranty Co. v. Goodson, supra at 446. Absent an express contract, evidence of the exercise of control may be the best evidence available to demonstrate the actual terms of the contract, but the right, not its exercise, is the supreme test. Newspapers, Inc. v. Love, 380 S.W.2d 582, 590 (Tex.1964). Dickerson v. I.N.A. of Texas, 640 S.W.2d 81, 83 (Tex.App.—Amarillo 1982, no writ). We also note that the courts have consistently determined that remuneration is a necessary element of a contract of employment. Tex. Emp. Ins. Ass’n v. Burrell, 564 S.W.2d 133, 134 (Tex.Civ.App.—Beaumont 1978, writ ref’d n.r. e.). The tests outlined above also apply when deciding whether the worker is a borrowed employee. United States Fire Insurance Company v. Warden, 471 S.W.2d 425, 427 (Tex.Civ.App.—Eastland 1971, writ ref’d n.r.e.). Thus, we review the evidence.

Mayo died in a truck wreck. The truck he was driving was owned by W.R. Connally, who did not have a Railroad Commission permit or workers’ compensation insurance, and was leased to Ward Trucking, which did have a Railroad Commission permit and workers’ compensation insurance. As pertinent here, the lease stated:

3. Lessor [Connally] shall operate under the TEXAS RAILROAD COMMISSION rules and regulations.
5. During the term of this lease, lessee [Ward Trucking] will use the described vehicle for transportation under Permit # 32243.
6. Lessor agrees for lessee to bill all invoices.
7. Lessee shall retain 25% of gross receipts for services.
8. ALL ITEMS OR SERVICES CHARGED TO LESSEE BY LESSOR OR LESSOR’S DRIVERS WILL BE DEDUCTED FROM SETTLEMENT SHEET.
9. The parties agree and understand that LESSOR will at his own cost and expense maintain insurance covering loss and/or damage to the said equipment as a result of fire, theft, collision or for any other casualty resulting in the loss and/or damage thereto, it being understood and agreed by both parties that LESSEE shall never be liable to LESSOR for loss and/or damage to said equipment from any cause whatsoever, including the negligence of LESSEE, his agents or employees. Lessor must furnish lessee with verification of all insurance carried.
10. Lessee will not be responsible for FICA, withholding taxes, or Workmen’s [sic] Compensation on lessor’s drivers.
11. Lessor’s drivers will be subject to lessee’s rules and regulations.

The lease was filed with the Texas Department of Public Safety as required by Texas Revised Civil Statutes Annotated article 6701c-l Section 2 (Vernon Supp.1985). It is apparent from the wording of the lease and from the evidence discussed below that one of the purposes of the lease arrangement was to provide Connally a Railroad Commission permit under which to operate his truck.

Mayo was driving for Connally when Connally leased his truck to Ward Trucking, and Mayo continued to drive the truck as he had in the past. Connally testified that he hired Mayo, that Mayo worked for him and that he established Mayo’s salary. Although Connally did not give Ward Trucking express permission to fire Mayo, he was of the opinion that Ward Trucking could have terminated Mayo if so desired. Connally’s testimony also revealed that Mayo received directions from Ward Trucking when driving the truck and that Mayo was responsible for the maintenance of the truck.

In contrast to Connally’s testimony, Lawrence Ward, sole stockholder of Ward Trucking Company testified that he could not have terminated Mayo, because Connally had hired him. Ward also said he couldn’t require Mayo (1) to drive one of Ward Trucking’s vehicles, (2) to purchase fuel at a designated place, or (3) to take a particular route in transporting cargo. He also pointed out that Mayo, and other lease drivers, were compensated on the basis of the number of loads transported, while his employees were paid a salary. Ward expressed his belief that Connally was carrying workers’ compensation for Mayo, but said he would have carried it if Connally had asked him to do so.

There was also evidence that Ward Trucking employed a number of truck drivers who were paid salaries, had regular hours and transported grain and general commodities. When there were no commodities to transport, these salaried drivers were required to perform other tasks for the company. By contrast, Mayo, who had been a salaried driver for Ward Trucking before he quit and went to work for Con-nally, did not have regular hours, and did not report to Ward Trucking- to perform other tasks if there was no cargo to transport.

At Connally’s request, and contrary to the terms of the lease, Ward Trucking issued checks to Mayo, prepared his W-2 form, filed quarterly reports and carried him as its employee. In following the rules of Ward Trucking, Mayo was required to submit data regarding mileage, fuel usage, delivery and pick-up points, and the type of commodity transported. Also, consistent with the Railroad Commission permit, Mayo was restricted to certain routes.

Mrs. Mayo points to two specific events discussed above as support for her contention, in points one and two, that Mayo was, as a matter of law, Ward Trucking’s employee. First, she says Mayo’s operation of a leased truck under Ward Trucking’s Railroad Commission permit compels that conclusion. We rejected a similar argument in Dickerson v. I.N.A. of Texas, supra, where a similar lease arrangement was present, pointing out that the lease, workers’ compensation statutes and Texas Revised Civil Statutes Annotated article 6701c-l Section 2 (Vernon Supp. 1985), upon which appellant relies here, do not speak to or in any manner resolve the status of the driver of a leased vehicle. We believe Dickerson is correct and, following it, we overrule Mrs. Mayo’s first point.

By her second point, Mrs. Mayo contends the lease gave Ward Trucking so much control over Mayo that he was its employee as a matter of law. Although the lease certainly gave Ward Trucking the right to control certain aspects of the operation of the truck, we note that the lease also refers frequently to “Lessor’s drivers,” and places on Connally the responsibility for various activities related to his drivers. Thus, the lease, in isolation, is at best ambiguous on the matter and the jury’s resolution of that ambiguity must prevail. Point of error two is overruled.

Under her final point, Mrs. Mayo points to the numerous instances where Ward Trucking could control some aspect of Mayo’s activities and to the evidence that it issued checks to him, withheld taxes from his check and carried him as its employee on government reports, in support of her general argument that the verdict is clearly wrong and unjust. We observe, however, that there was evidence that: (1) Ward Trucking employed salaried drivers for its trucks; (2) Mayo was the driver of a leased truck and treated like other lease-drivers; (3) Mayo was not required to perform certain tasks or work designated hours as the salaried employees; (4) Mayo was hired by Connally; (5) Ward Trucking could not have terminated Mayo; (6) Mayo had control of his routes; (7) Mayo or Con-nally decided where to park the truck overnight, where it was repaired and where to purchase fuel; and (8) Connally established the amount of Mayo’s earnings.

Thus, there was a factual dispute over the extent to which Ward Trucking could control Mayo and the jury resolved that dispute against Mrs. Mayo. We are powerless to change the result. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952). Point of error three is overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: ASHWORTH, Justice.

license: Public Domain

text:
    Cora Margrett EARP, Appellant, v. Alvin D. EARP and Ullaine Walker, Executrix, Appellees.
    No. 2-84-144-CV.
    Court of Appeals of Texas, Fort Worth.
    April 10, 1985.

      Dennis G. Brewer, Inc. and Dennis G. Brewer, Sr., Irving, for appellant.
    Banner, McIntosh & Dobbs and Garry Dobbs, Wichita Falls, Glen Jones, Bowie, for appellees.
    Before FENDER, C.J., and ASHWORTH and BURDOCK, JJ.
   OPINION

ASHWORTH, Justice.

This is a proceeding in the nature of a bill of review arising out of a divorce case.

We affirm.

In the Spring of 1981, appellant sued her husband, Alvin D. Earp, now deceased, for divorce and a property division. Matters pled by both husband and wife consisted of the allegations usual in the case of “no fault” divorce proceedings.

On September 24, 1981, the trial court entered the first decree of divorce and divided the community property of the parties. The court, on its own motion, entered an order for nunc pro tunc judgment on February 9, 1982. The community property division in this judgment is the same as in the first decree of divorce except for the correction of clerical errors in the form of legal descriptions. Eight days later, on February 17, 1982, the trial court entered an order granting a new trial. Subsequent to the granting of the new trial, the trial court entered a second decree of divorce.

On November 24, 1982, this Court rendered an opinion holding that the nunc pro tunc judgment of February 9, 1982 was only the correction of clerical errors in the September 24, 1981 judgment. We noted that the trial court committed an obvious error by granting a new trial almost five months after the entry of the original judgment of divorce.

On April 11, 1983, appellant filed her petition for bill of review complaining of the unequal division of community property. A pretrial hearing was had on appellant’s first amended petition for bill of review. Subsequent to this pretrial hearing, the trial court entered an order dismissing appellant’s petition. Appellant then timely filed a motion for new trial which was overruled and appellant timely perfected her appeal to this court.

A bill of review is an independent equitable action brought by a party to a former action seeking to set aside a judgment which is no longer appealable or subject to motion for new trial. Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex.1979). See McEwen v. Harrison, 162 Tex. 125, 131-32, 345 S.W.2d 706, 709-10 (1961). In order to be successful upon a bill of review, the complainant must allege and prove: “(1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own.” Baker, 582 S.W.2d at 406; Alexander v. Hagedorn, 148 Tex. 565, 568, 226 S.W.2d 996, 998 (1950). It is not necessary that the complainant prove his meritorious defense by a preponderance of the evidence. Baker, 582 S.W.2d at 408.

The trial procedure to be utilized is as follows. In order to invoke the equitable powers of the court, the bill of review complainant must file a petition. Such petition must allege factually and with particularity that the prior judgment was rendered as the result of fraud, accident or wrongful act of the opposite party or official mistake unmixed with his own negligence. Id. The complainant must further allege, with particularity, sworn facts sufficient to constitute a defense to the original judgment and, as a pretrial matter, present prima facie proof to support the contention. Id. This preliminary showing is essential in order to assure the court that valuable judicial resources will not be wasted by conducting a spurious “full blown” examination of the merits. Id.

A prima facie meritorious defense is made out when it is determined that the complainant’s defense is not barred as a matter of law and that he will be entitled to judgment on retrial if no evidence to the contrary is offered. Baker, 582 S.W.2d at 409. This is a question of law for the court. Id. Prima facie proof may be comprised of documents, answers to interrogatories, admissions and affidavits on file along with such other evidence that the trial court may receive in its discretion. Id. The bill of review defendant may respond with like proof showing that the defense is barred as a matter of law, but factual questions arising out of factual disputes are resolved in favor of the complainant for the purposes of this pretrial, legal determination. Id. If the court determines that a prima facie meritorious defense has not been made out, the proceeding terminates and the trial court shall dismiss the case. Id.

In point of error one, appellant contends that the trial court erred in overruling her motion for new trial because appellant presented prima facie proof of a meritorious defense to the cause of action alleged to support the divorce judgment. It appears from appellant’s brief that this prima facie defense is that the division of property, pursuant to the final decree of divorce, is unequal inasmuch as she only received 37% of the community property while her ex-husband received 63%. In support of this contention, appellant states that her pleadings and proof, offered at the original divorce trial as well as at the pretrial hearing on her petition for bill of review, coupled with the absence of any evidence in the original divorce trial warranting an unequal property division, constitute prima facie proof of a meritorious defense.

We find that appellant is basically contending that the trial court abused its discretion in its division of the parties’ community property. Abuse of discretion is not a proper subject for a bill of review. Accordingly, we hold that appellant has not set forth a meritorious defense and her point of error one is hereby overruled. Since it is incumbent upon appellant in a bill of review proceeding to establish a prima facie meritorious defense to the original judgment and appellant has failed to do so, we need not address appellant’s other points of error.

Judgment is affirmed.


author: FENDER, Chief Justice.

text:
    Frank Andrew SKATELL, Appellant, v. The STATE of Texas, State. Richard Charles SKATELL, Appellant, v. The STATE of Texas, State.
    Nos. 2-83-408-CR, 2-83-409-CR.
    Court of Appeals of Texas, Fort Worth.
    April 10, 1985.

      Frank S. Wright, Dallas, for appellants.
    Jerry Cobb, Dist. Atty., Denton, for ap-pellee.
    Before FENDER, C.J., and BURDOCK, J.
   OPINION

FENDER, Chief Justice.

These are companion cases involving a father and son who were convicted of aggravated robbery. Frank Skatell (the father) was sentenced to 25 years confinement in the Texas Department of Corrections and Richard Skatell was sentenced to 8 years. Appellants raise the same six grounds of error, and therefore they shall be treated together.

We affirm.

On May 27, 1983, Frank and Richard went to the residence of Ted Hawk to have Hawk’s wife, Louise, counsel Frank regarding some money matters. After they arrived Richard, brandishing a gun, ordered the Hawks to give them all their money and jewelry. After the robbery Frank and Richard fled the premises, and were subsequently apprehended in Pennsylvania in July, 1983.

In their first ground of error, appellants claim that the trial court erred by rejecting appellants’ request that the jury be charged that illegally obtained evidence is inadmissible at trial. See TEX.CODE CRIM.PROC.ANN. art. 38.23 (Vernon 1979).

The record shows that a hearing was held outside the presence of the jury to determine the legality of Frank’s arrest because appellants wished to suppress certain evidence seized as a result of such arrest. At this hearing Officer McKenna (the Pennsylvania State Police Officer who arrested Frank) testified that he arrested Frank because (1) he had learned that a capias had been issued for Frank’s arrest from Denton County, Texas, and (2) he had received a copy of a capias from Harris County, Texas, (for an unrelated offense) which he had in his possession at the time he arrested Frank. Officer McKenna was then questioned by one of the counsel for appellants who asked him if the Harris County capias which he had in his possession was the exact one which was being offered into evidence. Officer McKenna replied that it was. Counsel then objected to the introduction of the capias because the copy which was being offered had not been attested to until two days after the arrest, which counsel contended rendered the capias invalid, and by extension, the arrest illegal. The trial court overruled this objection to the Harris County capias, and subsequently overruled appellants’ motion to suppress. Officer McKenna then testified before the jury about the circumstances of the arrest. When the State attempted to introduce the evidence seized as a result of the arrest, appellants renewed their objections to the introduction of the evidence, arguing that it resulted from “an arrest without a valid warrant.” The trial court overruled this objection and admitted the evidence.

Appellants argue on appeal that they were entitled to an art. 38.23 instruction because McKenna testified that he had in his possession at the time of Frank’s arrest the actual copy of the capias which the State introduced into evidence. Appellants implicitly argue that this testimony indicates an inconsistency — McKenna could not have had the same instrument because the actual capias introduced into evidence had not been attested to until after the arrest— and that therefore a fact issue for the jury to decide was raised.

Although we acknowledge that McKenna’s testimony is inconsistent in regards to which particular document he actually had in his possession, we disagree that it raised a fact issue for the jury to decide. It is elementary that before a jury may be allowed to decide a particular fact issue, it must hear evidence relating to the question. In the case at bar though, appellants rely on Officer McKenna’s testimony which was presented outside the presence of the jury. Thus, there was not even a possibility that a fact issue was raised for the jury to decide. See Murphy v. State, 640 S.W.2d 297, 299 (Tex.Crim.App.1982) (opinion on the State’s petition for discretionary review). In the absence of any fact issue for the jury to decide, an art. 38.23 instruction should not be given. Id.

In the interest of justice we have examined Officer McKenna’s testimony before the jury to see if any fact issue was raised regarding the admission of evidence introduced as the result of the arrest of Frank. We find none. Appellants did not produce any evidence controverting Officer McKenna’s testimony. See Rose v. State, 470 S.W.2d 198, 200 (Tex.Crim.App.1971). Appellants’ first ground of error is overruled.

In their second ground of error, appellants urge that the trial court erred in refusing to submit an instruction regarding impeachment evidence. Appellants contend that Ted Hawk was impeached by the testimony of his wife and a police officer because Ted Hawk had testified that certain pieces of jewelry had been taken in the robbery when in fact they were found not to have been taken. Although Ted Hawk might have been impeached by his wife and the police officer, the appellants were not entitled to a limiting instruction on the use of such impeachment testimony. A defendant may not ask for a limiting instruction on the use of impeachment evidence against a State witness. See Sanders v. State, 642 S.W.2d 860, 863 (Tex.App.—Fort Worth, 1982, pet. denied). Furthermore, appellants failed to show how the impeachment testimony in question might have been detrimental to them, and thus, no need is shown for a limiting charge. Appellants’ second ground of error is overruled.

Appellants claim in their third ground of error that the trial court erred in refusing to give the jury a requested charge about reasonable doubt. The appellants’ requested jury charge reads as follows:

“In case you have a reasonable doubt as to the Defendants’ guilt after considering all of the evidence before you and these instructions, you will acquit the Defendants.”

The trial court refused the requested instruction, but did instruct the jury:

“Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof you will acquit the Defendants of aggravated robbery.... All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.”

The trial court did not err in refusing the appellants’ requested instruction. The charge given by the court was substantially similar to that requested by the appellants and adequately protected appellants’ rights. See Ruiz v. State, 627 S.W.2d 507, 508 (Tex.App.—Corpus Christi 1982, no pet.); Adams v. State, 588 S.W.2d 597, 598 (Tex.Crim.App.1979); DeRusse v. State, 579 S.W.2d 224, 234 (Tex.Crim.App.1979). Appellants’ third ground of error is overruled.

In their fourth ground of error, appellants urge that the trial court should have instructed the jury that the jury could request, during deliberations, that parts of the record be read back to them. See TEX.CODE CRIM.PROC.ANN. art. 36.28 (Vernon 1981). We are aware of no authority requiring the giving of such an instruction. In any event, appellants were not harmed because the jury during deliberations requested portions of the testimony and this request was complied with by the court. Appellants’ fourth ground of error is overruled.

In their fifth ground of error, appellants argue that the trial court erred in overruling their motion to suppress certain evidence seized as a result of the arrest of Frank. Appellants contend the arrest was illegal because as they view the facts, Officer McKenna was acting pursuant to an invalid warrant (apparently related to another offense and issued from Harris County), and without knowledge that a capias had been issued from Denton County for the offense in question. See Madden v. State, 644 S.W.2d 735, 738 (Tex.Crim.App.1983) (opinion on State’s petition for discretionary review).

We disagree with appellants’ assessment of the facts. First, as discussed in regard to their first ground of error, we acknowledge that there might be some inconsistency or confusion reflected in Officer McKenna’s statement that he had in his possession at the time of Frank’s arrest a warrant which was not attested to until two days after the arrest. Notwithstanding this confusion, the record shows that a valid warrant had been issued from Harris County on June 6, 1983, and that Officer McKenna was aware of this warrant. That the particular copy of the warrant which was introduced into evidence had been executed after the arrest does not render the warrant itself invalid. Thus, based on Officer McKenna’s testimony that he was acting pursuant to a warrant that had been issued from Harris County, his arrest of Frank was legal. See Cook v. State, 470 S.W.2d 898, 899 (Tex.Crim.App.1971). Second, appellants’ contention that Officer McKenna had no knowledge that a capias had been issued from Denton is not supported by an examination of the record. The record shows that Officer McKenna had talked by telephone with the authorities in Denton County who informed him that a capias had been issued for both Richard and Frank. Under these circumstances, Officer McKenna had probable cause to arrest Frank. See TEX.CODE CRIM.PROC.ANN. art. 15.26 (Vernon 1977). Appellants’ fifth ground of error is overruled.

In their sixth ground of error, appellants contend that witnesses for the State improperly suggested that Richard, who was 19 at the time of trial, had a juvenile record. See TEX.FAM.CODE ANN. sec. 51.13(b). Appellants first complain that Officer Hochheim gave a nonre-sponsive answer to a question placed to him during cross examination. Officer Hochheim was asked if he knew that Richard had never been convicted of a felony. In response, Officer Hochheim said that “To the best of my knowledge, as an adult I don’t think he has.” Although Richard’s counsel moved for a mistrial which was denied, counsel withdrew his request to have the court instruct the jury to disregard the testimony. Thus, any error in the answer was waived. See Brooks v. State, 642 S.W.2d 791, 798 (Tex.Crim.App.1982); Koller v. State, 518 S.W.2d 373, 378 (Tex.Crim.App.1975).

Appellants also complain about the testimony of Officer Poole. During the punishment phase, Officer Poole stated that he had known Richard for eight years and that he knew his reputation to be bad. As in the first complained of incident, Richard’s counsel failed to ask for a motion to disregard, and thus, any error was waived. See Brooks, supra. But even assuming the ground of error had been properly preserved, we find no error. Officer Poole did not testify that Richard had a juvenile record. He simply said that Richard had a bad reputation. Such an assessment is permissible. See Allen v. State, 533 S.W.2d 352, 355 (Tex.Crim.App.1976). Appellants’ sixth ground of error is overruled.

The judgment below is affirmed.


text:
    Danny James ISHMAEL, Appellant, v. The STATE of Texas, State.
    No. 2-84-144-CR.
    Court of Appeals of Texas, Fort Worth.
    April 10, 1985.

      Gilfeather, Parker & Griffin, Pete Gil-feather, Fort Worth, for appellant.
    Tim Curry, Dist. Atty., and Darrell G. Adkerson, Asst., Fort Worth, for State.
    Before FENDER, C.J., and BURDOCK, J.
   OPINION

FENDER, Chief Justice.

This is an appeal from a conviction for the offense of involuntary manslaughter where, upon a showing of two prior felony convictions, appellant was assessed a life term by a jury. Appellant raises twelve grounds of error.

We affirm.

In his first ground of error, appellant claims the evidence was insufficient to support the verdict.

Appellant was convicted upon circumstantial evidence. In reviewing the sufficiency of the evidence in a circumstantial evidence case, we must view the evidence in the light most favorable to the 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) (opinion 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, 61 L.Ed.2d 560 (1974). 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, 195 (Tex.Crim.App.1984); Wilson, 654 S.W.2d at 471; Williams v. State, 631 S.W.2d 171, 173 (Tex.Crim.App.1982).

In order to address this ground of error, a review of the evidence is necessary.

On the afternoon of May 6, 1983, appellant and one Ranee Miller were imbibing at the “Nude Connection” (a dancing club). They appeared to be intoxicated and enjoyed harassing the dancers. Gary Feem-ster, the bartender, asked them to behave, but they again bothered the dancers. Feemster asked them to behave a second time and they complied. Gary Feemster’s brother, Joe, appeared for work and was apparently informed of the situation. Eventually, Joe Feemster had to ask appellant and his companion to leave the establishment, and escorted them outside.

Gary Feemster left the club and, while walking to his car, he saw appellant in a car. Appellant told Gary he was going to return and “blow his f_ head off.” Joe Feemster came outside and appellant said to him, “I’m going to kill you.”

About half an hour later, Tina Williams, an occupant of the “Nude Connection” building, was hit by a metallic slug which was fired through the side door while the door was closed. She died as a result. Three metal fragments were found in her body.

A police officer testified that he found numerous metal or lead fragments at the scene of the crime and he opined that the slug could have caused the deceased’s death. The Tarrant County Medical Examiner confirmed that it was the cause of death. The police officer further testified that a shotgun could have been used in the commission of the crime.

Larry Gene Burdette testified that he was at the home of Ranee Miller at about dusk on the night Tina Williams was killed. He saw Ranee and appellant drive up in a car from which appellant exited with a shotgun in his hands. Appellant then stated that he had been thrown out of a bar by the collar, that nobody could do that to him, and that he had gotten a gun, returned to the bar, and shot the man who threw him out. Appellant gave Burdette the gun and told him to dispose of it. Burdette further testified that Ranee Miller appeared frightened and stated the gun had discharged in the car.

We hold that the evidence was sufficient to support the verdict of involuntary manslaughter. The State has proved the case beyond a reasonable doubt and to a moral certainty, and we hold that the circumstances excluded every other reasonable hypothesis except the appellant’s guilt. The appellant’s first ground of error is overruled.

In his second ground of error, the appellant complains that the evidence was insufficient to support the verdict in that the prosecution used allegedly perjured testimony to show that the grand jury was diligent in trying to ascertain the identity of the person who the appellant intended to kill.

The evidence presented at trial showed that the appellant had made threats to kill both the bar owner and manager after appellant had been thrown out of the bar. Approximately half an hour later, appellant allegedly returned to the bar and fired a shotgun slug through a closed door of the bar, killing Tina Williams.

The appellant was indicted for murder under TEX.PENAL CODE ANN. see. 19.-02(a)(2) (Vernon 1974) which reads:

(a) A person commits an offense if he:
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.

Id.

The indictment was quashed for reasons unrelated to this ground of error and the appellant was re-indicted by a different grand jury. The new indictment alleged that the appellant:

did then and there intentionally with the intent to cause serious bodily injury to a person or persons unknown to the grand jury commit an act clearly dangerous to human life, namely, knowing that persons were inside the Nude Connection nightclub ... he did fire a firearm through the closed door of the nightclub, which caused the death of Tina Williams. [Emphasis added.]

When the State alleges that an element or fact is unknown to the grand jury, it must show that the grand jury used due diligence in trying to ascertain the fact which is alleged to be unknown. Cunningham v. State, 484 S.W.2d 906, 911 (Tex.Crim.App.1972). However, where the facts as developed at trial suggest that an investigation by the grand jury could not have helped in ascertaining the unknown fact, there is a prima facie showing of due diligence. Id. In an attempt to show this at trial, Mrs. Brown, the foreperson of the grand jury which re-indicted appellant, testified that her grand jury could not determine who appellant had intended to kill because he had fired the shot through a closed door. She testified that during the re-indictment process, there was no mention of any threats by the appellant against the bar owner and manager. She also testified that her grand jury had heard the case previously.

While the jury was deliberating, the Assistant District Attorney came forth and informed the court that Mrs. Brown’s testimony was partly false, that her grand jury had not heard the case prior to re-indictment, and that the appellant had been originally indicted by a different grand jury. He testified that Mrs. Brown thought she had heard the case previously because he had told her so. The State asked to reopen its case, but was denied. The appellant moved for an instructed verdict and for mistrial, and both were denied.

On appeal, the appellant now claims that the evidence was insufficient to support the verdict because the State was not entitled to rely on Mrs. Brown’s testimony to show that the grand jury was diligent in trying to ascertain the identity of the person who the appellant intended to kill. We disagree. The error in Mrs. Brown’s testimony did not affect any material issue.

When a person fires a gun into a crowd of people with no particular intended victim, the probability that serious bodily injury will result is so great that it is worse than reckless disregard of the consequences; if a death is thus caused, it is murder. See Womble v. State, 618 S.W.2d 59, 64 (Tex.Crim.App.1981); Salisbury v. State, 235 S.W. 901, 902 (Tex.Crim.App.1921). We believe that in such a case, it is sufficient to allege that the accused intended to cause serious bodily injury to a person or persons unknown to the grand jury.

On the other hand, when the State can prove that the accused intended to harm a specific person, and when the State plans to use such proof of intent to show that the accused was the one who fired the shot, we believe that the State must specify in the indictment who he allegedly intended to kill. This latter example would be a case of “transferred intent”. Johnigan v. State, 502 S.W.2d 136, 137 (Tex.Crim.App.1973).

The appellant in the case at hand did not fire the fatal shot until half an hour after threatening to kill two specific people. Furthermore, he did not re-enter the bar before firing the shot. He had no rational basis to believe that the person he wanted to kill was standing on the opposite side of the door through which he fired. Therefore, we believe that this situation was more akin to the example of one firing into a crowd of people with no intended victim than to the example of transferred intent, even though the State used the appellant’s threats to show that he fired the shot. The appellant may have wanted to take the life of a specific person, but he apparently settled for taking the life of whoever got in his way. We hold, therefore, that his intended victim was unknown as a matter of law, regardless of the appellant’s prior threats.

Since the intended victim was unknown as a matter of law, we hold that there was a prima facie showing that the grand jury was diligent in ascertaining the identity of the intended victim. Therefore, Mrs. Brown’s mistaken testimony to the effect that her grand jury had heard the case prior to re-indictment, which implied that her grand jury had knowledge of the appellant’s threats, was irrelevant and harmless. By testifying that her grand jury knew that the appellant had fired a gun through a closed door and that he could not have known who was on the other side, Mrs. Brown established a sound basis for the language of the indictment. We hold that the indictment properly alleged murder under TEX.PENAL CODE ANN. sec. 19.02(a)(2), and that the evidence was sufficient to support the allegation. Appellant’s second ground of error is overruled.

In ground of error number three, appellant claims that the trial court erred in admitting into evidence the following testimony of Gary Feemster to the effect that Ranee Miller immediately re-entered the bar, after he and appellant were thrown out, and apologized for their conduct:

Q. And did those two individuals, the Defendant and the other individual, come back in the bar?
A. The other individual did.
Q. Okay. Not the Defendant?
A. No.
Q. Now, what, if anything, happened then?
A. The other individual came in and apologized. I—
MR. GILFEATHER [defense counsel]: Your Honor, we’ll object to any conversation outside the presence of the Defendant.
THE COURT: Sustained.
MR. GILFEATHER: Thank you, Your Honor. We’d ask the Court to instruct the jury to disregard that last answer by the witness.
THE COURT: Ladies and gentlemen, you will disregard the last answer given.
MR. GILFEATHER: Your Honor, we feel no amount of instruction can cure the error, and we request a mistrial.
THE COURT: Denied.

The appellant contends that the assertion that “[t]he other individual [Ranee Miller] came in and apologized” to Joe Feemster was inadmissible hearsay because the apology was allegedly made outside the presence of the witness and of the appellant. The appellant contends that the testimony was harmful because it supplied the jury with information from which it could infer that appellant rather than Ranee Miller had a motive to discharge a firearm into the nightclub. These arguments are without merit for three reasons.

First, there was no objection at trial on grounds that the apology was made outside the presence of the witness. The only grounds stated in the objection was that the apology was made outside the presence of the defendant, which was irrelevant to the question of whether the statement constituted hearsay. Therefore, the trial court was not obligated to grant the appellant a mistrial or even to sustain the objection.

Second, even if appellant had properly preserved the alleged error for appeal by objecting that the apology to Joe Feemster was made outside the presence of the witness, Gary Feemster, he failed to prove it. Appellant’s brief asserts that “Mr. Feem-ster admitted that he did not overhear the conversation”, but we find no such admission in the record.

Third, assuming that appellant had preserved any error, the trial court sustained the appellant’s objection and instructed the jury to disregard the testimony as to the apology. Therefore, the only issue is whether the judge abused his discretion in refusing a mistrial. We believe he did not abuse his discretion. An instruction to disregard testimony will cure an error unless the testimony was calculated to inflame the minds of the jury and was of such character as to suggest the impossibility of withdrawing the impression produced on the jurors’ minds. Carter v. State, 614 S.W.2d 821, 825 (Tex.Crim.App.1981). There is no indication that the testimony was calculated to inflame the minds of the jury, and the prejudicial effect was negated by the fact that two other witnesses, Jacqueline Barnes and Larry Burdette, corroborated the testimony without objection. Error in the admission of evidence is cured where the same evidence is admitted elsewhere without objection. Brown v. State, 640 S.W.2d 275, 280 (Tex.Crim.App.1982).

We hold that the trial court did not err in denying the appellant a mistrial. Appellant’s third ground of error is overruled.

Ground of error number four raises an objection to Officer Gary Gray’s testimony. Gray testified as to two objects he discovered in the bar and characterized them as metal or lead. He then said:

A. It appeared that a large object or projectile of some sort had passed through the door from outside of the club, gone completely through the door, and it apparently had struck the complainant as she was beside the bar. It had entered, as I say, under her left ear. Apparently came out the right corner of her mouth, continued across the bar, struck the west wall, and at that time, bounced back across landing on the east side of the stage on the shelf or bar that was around the stage.
Q. Is it possible for a shotgun to have made that type of explosion in a door?
[Defense objections overruled as to expert qualifications regarding ballistics.]
Q. Would it be possible?
A. Yes, sir.
Q. Can you tell us how?
A. Yes, sir. Shotgun slugs — I don’t know if y’all are familiar with them — it’s a large caliber or large size piece of lead shaped like an extremely large bullet. It has what we call rifling on it, lands and grooves which essentially — they are essentially there to improve the trajectory or else make it spin at such a time it will fly a greater distance at a more linear pattern. It won’t dive or fluctuate or tumble. Those are normally role loaded in any caliber or gauge, where a shotgun you can find from a 4.10 probably up to a .12 gauge, and due to the weight of them, they are extremely heavy, more heavy than you would find in most any gun or rifle available.
Due to the weight of them, they normally have quite a large charge of powder in the shell with them that would cause them to come out at such force that they could do that much damage and travel that far.

Appellant claims this testimony was given without Gray having qualified as an expert. We disagree. Gray testified as to his practical experience through military training, police and civilian training and training through sports. He also showed that he had taken a college course that included ballistics, weapons and ammunition. Further, he had extensive police work and training in the Marine Corps. We hold that the witness was sufficiently qualified to testify to the matters quoted above. See Carrillo v. State, 634 S.W.2d 21, 23 (Tex.App.—El Paso 1982, no pet.). We overrule ground of error number four.

In appellant’s fifth ground of error, he asserts that the trial court erred in admitting an autopsy report because it was not introduced by the person who prepared it. We disagree.

The Tarrant County Medical Examiner testified that he was the custodian of autopsy reports even though he did not perform this particular autopsy. He also supplied the other elements of the business records exception to the hearsay rule. TEX.REV.CIV.STAT.ANN. art. 3737e (Vernon Supp.1985). Since the witness testified to the contents of the report, it was not exhibited to the jury because that would have been bolstering. Simply admitting the autopsy report into evidence and allowing the custodian to read from the report did not constitute error. See Burrell v. State, 446 S.W.2d 323, 324 (Tex.Crim.App.1969). Appellant’s fifth ground of error is overruled.

Appellant’s sixth ground of error complains that the trial court erred in admitting the hearsay testimony of witness Bur-dette concerning a conversation with Ranee Miller.

The conversation to which the witness testified occurred around dusk, after the shooting, when appellant and Miller drove up to Miller’s house. The witness, who was already at Miller’s house, stated that Miller exited the car on the driver’s side and appellant exited on the passenger side and was holding a shotgun. Burdette further testified that Miller’s cheek was bleeding and that Miller said it was bleeding because he had been hit by a bottle. Burdette said that appellant was in the immediate vicinity when Miller made this statement. Burdette then testified that appellant made several statements of his own to the effect that he had been thrown out of a bar and that he, appellant, had returned to kill the man who did it.

Appellant now alleges that Miller’s remark about being hit by a bottle was inadmissible hearsay and that it was harmful because it refuted appellant’s theory that Miller was the one who fired the shot and that Miller’s cheek was bleeding due to the recoil of the shotgun. We disagree that the testimony was inadmissible.

Though the evidence was hearsay, we hold that it was admissible under the res gestae exception. See Ward v. State, 657 S.W.2d 133, 136 (Tex.Crim.App.1983). The facts show that the statement was made in relation to a startling event while the de-clarant, Miller, was still under the stress of that event. Appellant’s sixth ground of error is overruled.

By ground of error number seven, appellant complains that the trial court committed reversible error in failing to negate “sudden passion” in its murder charge. Appellant simply states in his brief that sudden passion should be negated regardless of whether voluntary manslaughter is included in the charge. We disagree. Appellant cites no statute or case authority. We perceive no error because voluntary manslaughter was not raised and was not submitted to the jury. Had voluntary manslaughter been raised, appellant’s reliance on Green v. State, 658 S.W.2d 303, 306 (Tex.App.—Houston [1st Dist.] 1983, pet. ref d) and De La Rosa v. State, 660 S.W.2d 642, 645 (Tex.App.—Corpus Christi 1983, no pet.) might be correct. The issue of voluntary manslaughter was not raised, hence there is no error. See Hobson v. State, 644 S.W.2d 473, 478 (Tex.Crim.App.1983).

In grounds of error numbers eight and nine, appellant raises complaints about the court’s charge.

The indictment alleges that appellant did, among other things, “fire a firearm through the closed door of the nightclub.” (The indictment before us charges murder only and not involuntary manslaughter as stated in the State’s brief.) The charge on murder correctly uses the language “he did fire a firearm through the closed door of the nightclub ...” In the charge on the lesser included offense (involuntary manslaughter), however, the court uses the phrase “by shooting through the closed door of a nightclub ...” in applying the law to the facts. Appellant complains that the charge failed to specify the means appellant used to shoot the deceased. We disagree. The charge speaks in terms of a firearm or shotgun at three places before the involuntary manslaughter charge and the trial judge instructed the jury to “consider the charge as a whole.” See Thomas v. State, 599 S.W.2d 812, 814 (Tex.Crim. App.1980). Further, to “fire a firearm” and to “shoot” are the same thing. Webster defines “shoot” thusly: “To let fly or cause to be driven forward with force ... from a bow, sling, or similar device or from a firearm.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2100 (1981).

Appellant’s ninth ground of error relates to the same language in the jury charge and appellant submits that because of the different wording used in the application paragraphs regarding murder and involuntary manslaughter, the court committed fundamental error. Specifically, appellant claims that a lesser included offense cannot have elements which differ from those of the main offense.

Inasmuch as appellant did not object at trial to the error in the court’s charge, we must decide whether the error was so egregious and created such harm that appellant has not had a fair and impartial trial—in short, “egregious harm”. See Almanza v. State, 686 S.W.2d 157, 173 (Tex.Crim.App.1985) (opinion on rehearing) (not yet reported); TEX.CODE CRIM. PROC.ANN. art. 36.19 (Vernon 1981).

In making this determination, “the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Almanza at p. 173. The purpose of this review is to illuminate the actual, not the theoretical, harm to the accused. Id. at p. 171.

We find no egregious harm in the wording of the charge and we hold that there was no fundamental error. Grounds of error eight and nine are overruled.

In ground of error number ten, appellant complains of the trial court’s responses to two notes sent from the jury during deliberations. Appellant contends that these responses resulted in jury misconduct and a wrongful conviction.

Throughout trial, the State attempted to prove that appellant was the person who fired the fatal shot. Appellant’s theory of the case was that Ranee Miller had fired the shot and that he, appellant, should not be convicted on mere presence at the scene of the offense. During deliberations, the jury twice requested the judge to instruct them on “the law of parties.” Appellant asked the judge to inform the jury that the law of parties was not applicable to the case. The judge denied the request and instructed the jury that all the law applicable to the case was contained in the charge and that he was not allowed to give any further instructions.

Since both the State and appellant have admitted that the law of parties is not applicable to this case, the only issue presented herein is whether the trial judge sufficiently communicated this fact to the jury. TEX.CODE CRIM.PROC.ANN. art. 36.27 (Vernon 1981) requires the court to answer communications from the jury and to give additional instructions on questions of law requested by the jury when the request is proper. If the request is not proper, the court should so inform the jury by referring them to the court’s charge. Gamblin v. State, 476 S.W.2d 18, 20 (Tex.Crim.App.1972). It appears from the record that the court’s charge authorized a conviction only if the jury found that appellant fired the gun. We hold, therefore, that the trial court did not err in instructing the jury to look to the charge for all the law applicable to the case.

Another issue which is implicit in this ground of error, though not expressly raised in appellant’s brief, is whether the trial court erred in overruling appellant’s motion for new trial. In that motion, appellant alleged that the jury improperly convicted appellant of involuntary manslaughter simply because he was a party to the offense. During the hearing on the motion for new trial, appellant tried to elicit testimony from one of the jurors to the effect that the jury was never convinced that appellant was the one who pulled the trigger: After listening to all the evidence, the trial judge found no jury misconduct.

After reviewing the record of the hearing, we hold that the judge did not err in overruling the motion for new trial. Appellant’s tenth ground of error is overruled.

By ground of error number eleven, appellant complains generally about a sister-state “penitentiary packet”. His claim, on appeal, is that a Kentucky conviction does not appear on its face to be a final conviction and he complains that there is no judgment and sentence. There is a judgment and sentence in the record. As to appellant’s claim that the conviction might not be final, nothing is presented on appeal as he did not raise the matter in the trial court. His objection at trial was simply that there was “no fixed sentence” (and there is one—for a 15-year term). See Carrillo v. State, 591 S.W.2d 876, 892 (Tex.Crim.App.1979). Error presented on appeal must be the same as trial objection. Boyd v. State, 643 S.W.2d 700, 706 (Tex.Crim.App.1982).

Further, Johnson v. State, 583 S.W.2d 399, 403 (Tex.Crim.App.1979) (a case not cited by either party) teaches the rule applicable in this situation: Where the record is silent as to whether a prior conviction is final and the state has proved a prior conviction with certified copies of the judgment and sentence, the burden shifts to the defendant to show his conviction was not final. Proof of a lack of finality of the conviction was not presented by appellant. We hold that the State’s proof was adequate to show the prior conviction was final before the commission of the present offense. See Ashley v. State, 527 S.W.2d 302, 305 (Tex.Crim.App.1975). Ground of error number eleven is overruled.

By appellant’s ground of error number twelve, he complains of the trial court’s failure to dismiss for “lack of a Speedy Trial,” claiming the State’s announcement of “ready” on the first and second indictments did not carry forward to the third indictment, citing Richardson v. State, 629 S.W.2d 164, 165 (Tex.App.—Dallas 1982, pet. ref’d). Appellant contends that the addition of a new paragraph 3 to the third indictment was a different allegation with different elements requiring different proof than the two prior indictments, and that the State could not possibly have been ready for trial on the new indictment within the statutory period. (We note that the first two indictments are not contained in the appellate record.)

The trial court found the Richardson case distinguishable inasmuch as it involved the addition of an entirely new offense, whereas the instant case merely involved the addition of a different mode of committing the same offense. The trial court found, therefore, that the State’s original announcement of “ready” carried forward to the new indictment and that the State complied with TEX.CODE CRIM. PROC.ANN. art. 32A.02 (Vernon Supp. 1985) even though the first indictment was then defective.

The Speedy Trial Act does not require that the State be ready with a perfect indictment. Even though the defect in the charging instrument is such that it would require a mistrial or reversal of a conviction, the presence of such a defect does not necessarily indicate that the State was not ready for trial. Ward v. State, 659 S.W.2d 643, 647 (Tex.Crim.App.1983). A defective indictment is treated in much the same manner as other causes for trial delay with the nature of the defect and the length and reasonableness of the delay weighed in determining whether or not the State was, in fact, not prepared for trial. Id.

Since the appellant has failed to supply this court with a copy of the original indictment, it is impossible for us to determine whether the third indictment alleged a new offense or simply altered the original offense. We must assume, therefore, that the trial court correctly weighed the evidence in finding that the State’s original announcement of “ready” should be carried forward to the new indictment. We hold that the trial court did not err in denying appellant’s motion to dismiss the prosecution for want of a speedy trial. Appellant’s twelfth ground of error is overruled.

Affirmed.


text:
    Alvino GONZALES, Appellant, v. The STATE of Texas, State.
    No. 2-84-168-CR.
    Court of Appeals of Texas, Fort Worth.
    April 11, 1985.
    Morehead, Sharp & Tisdale, Tom Boyd, Plainview, for appellant.
    Ron Felty, Dist. Atty., Plainview, for ap-pellee.
    Before FENDER, C.J., and ASHWORTH and SPURLOCK, JJ.
   OPINION

FENDER, Chief Justice.

Appellant was convicted by a jury of the offense of aggravated kidnapping. TEX. PENAL CODE ANN. sec. 20.04 (Vernon Supp. 1981). The jury assessed punishment at thirty-five years confinement in the Texas Department of Corrections.

We affirm.

In his sole ground of error, appellant contends that the trial court committed reversible error in overruling appellant’s objection to the in-court identification of appellant by the complaining witness because the in-court identification was unduly influenced by an illegal pretrial identification procedure.

Prior to trial of this cause, appellant filed a motion to suppress illegal identification, a hearing was held on the motion and the evidence presented reflected that the complaining witness, A_H_, was abducted from a convenience store by appellant after he took the money from the cash registers in the store. As A_ H_was forced by appellant into his car, she observed that the car had a license number of AZM267. Appellant drove A_H_to a secluded spot, sexually assaulted her and, subsequently released her a few blocks from her home. A_H_gave police a description of the automobile and the license number. A vehicle license number check revealed that the registered owner of the vehicle lived at 909 Fir Street in Plainview, Texas. Officers, proceeded to that address and found the vehicle parked in back of the residence and appellant asleep in the front seat.

While at the hospital a few hours after the alleged offense, A_H_was shown a photo spread. She selected appellant’s photograph, but said she could not be positive because his hair was so long. After appellant was taken into custody, his picture was made which was included in a second photo spread shown to A_ H_ at the police station. A_ H_selected the recent photograph of appellant and positively identified him as her assailant. Shortly after the second photo identification, a line-up was conducted at which time A_ H_ again positively identified the appellant as her assailant.

Appellant contends that the photographic display was impermissibly suggestive because the second display included nine pictures, two of which were appellant, one being the 1978 photograph of him with shoulder length hair, the other, the recent photograph of appellant with short hair. Six of the pictures were a slightly larger size than the picture of appellant made immediately prior to the second photographic display. Two other pictures were the same size. All pictures shown were of individuals wearing shirts except for the recent picture of appellant, in which he was not wearing a shirt, thereby exposing ta-toos on his chest. We find no merit to appellant’s argument.

In Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968), the Supreme Court stated the general rule in cases such as the one before us:

“[W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermis-sibly suggestive as to give rise to a very substantial likelihood of irreparable mis-identifieation.”

See also, Turner v. State, 614 S.W.2d 144, 145-146 (Tex.Crim.App.1981).

In the instant case, we do not find the photographic identification process imper-missibly suggestive. The photographs displayed depict young Hispanic males of similar physical characteristics. A_ H_ selected appellant’s photograph from the first photo display, but because of the length of his hair in the picture, she could not be positive. However, A-H_ positively identified the recent photograph of appellant in the second photo display. A comparison of the two photographs of appellant reveals an extreme difference in hair length and in appellant’s appearance in the photographs. Further, the fact that appellant was not wearing a shirt does not render the identification procedure improperly suggestive.' There is no suggestion that the officer displaying the photographs in any way attempted to influence A_H_to identify any photograph. A_H_was unwavering in her identification of the recent photograph of appellant. Further, there is no indication that the difference in size of the photographs prejudiced the identification procedure in any manner.

Because we do not find the photographic display impermissibly suggestive, we overrule appellant’s ground of error.

The judgment is affirmed.


text:
    Raleigh DURANT, Appellant, v. The STATE of Texas, State.
    No. 2-84-121-CR.
    Court of Appeals of Texas, Fort Worth.
    April 17, 1985.

      George Kredell, Arlington, for appellant.
    Tim Curry, Dist. Atty., and David L. Richards, Asst. Dist. Atty., Fort Worth, for the State.
    Before FENDER, C.J., and ASHWORTH and BURDOCK, JJ.
   OPINION

FENDER, Chief Justice.

Appellant was convicted by a jury of burglary of a habitation. Based on an enhancement count, the court assessed punishment at 20 years confinement in the Texas Department of Corrections. Appellant raises three grounds of error.

We affirm.

On January 24, 1984, the complainant discovered that jewelry, guns, and other valuable articles had been stolen from his house. The complainant notified the Fort Worth Police Department and a few days later the police learned from a routine pawn shop inventory report filed with them that a ring, matching the description of one stolen from complainant’s house, had been pawned by one Raleigh Durant on January 25, the day after the burglary. Although it is not entirely clear from the record, apparently an arrest warrant was issued in the name of Raleigh Durant based on information from the pawn shop report. Some eighteen days after the offense, an Officer Lee and another officer stopped a car being driven by appellant for speeding. Appellant was driving without a license and without proof of insurance. When asked for his name, the appellant responded with a name which the officer knew to be false. Appellant was then arrested. At trial, Officer Lee testified to the circumstances of the arrest over objection by appellant.

In ground of error number one, appellant argues that the prosecutor’s remark in his rebuttal jury argument that “if this Defendant had made an explanation to a Police Detective, that detective would have testified,” constituted an impermissible comment on appellant’s failure to testify. TEX.CODE CRIM.PROC.ANN. art. 38.08 (Vernon 1979). We disagree. For a prosecutorial comment to violate art. 38.08, the language must be either manifestly intended, or of such a character that the jury would naturally and necessarily take it to be a comment on the defendant’s failure to testify. See Stafford v. State, 578 S.W.2d 394, 395 (Tex.Crim.App.1978); Angel v. State, 627 S.W.2d 424, 426 (Tex.Crim.App.1982). We do not find that the remark in question was of such character. Furthermore, it appears that the prosecutor’s remarks were invited by the following jury-argument by defense counsel:

“So when the Police Officer [Officer Lee] came up here, I thought sure he was going to clear up the mystery. He was going to tell us how Raleigh Durant got into the house. Who saw Raleigh Durant in the house ... Who was with Raleigh Durant when the burglary was committed. None of that. The Police Officer didn’t even talk about the burglary-
“Why not? Ask yourself why he didn’t mention one word about the burglary. Because the officer does not himself know anything about it.”

A prosecutor may not go outside the scope of an invited argument. Kincaid v. State, 534 S.W.2d 340, 342 (Tex.Crim.App.1976). The prosecutorial remark in question, however, was simply a response to the criticism levelled at Officer Lee’s testimony by defense counsel for failing to talk about the burglary. .Furthermore, the prosecutor did not repeat the remark, and thus, any error was harmless. See Buitu reida v. State, 684 S.W.2d 133, 141 (Tex.App.—Corpus Christi 1984); Chapman v. United States, 547 F.2d 1240, 1249-1250 (5th Cir.1977) cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977). The remark did not exceed the scope of defense counsel’s invitation, and it did not constitute a comment on appellant’s failure to testify. Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends that the trial court erred in allowing Officer Lee to testify to the circumstances surrounding appellant’s arrest some eighteen days after the burglary. Appellant contends that the circumstances surrounding the arrest — that appellant was stopped for speeding, showed no driver’s license or evidence of insurance, and that he and his passenger gave false names— are irrelevant to the charge of burglary. Appellant also contends that Officer Lee’s testimony constituted an improper impeachment of appellant because appellant had not taken the stand.

We disagree. It is not impermissible for the State to prove the circumstances surrounding the arrest of a suspect. See Jones v. State, 471 S.W.2d 413, 414 (Tex.Crim.App.1971). Furthermore, the untruthful offer of an assumed name by an accused has long been held to be evidence of avoidance of arrest and of strong probative value. Edwards v. State, 156 Tex. Crim. 146, 239 S.W.2d 618, 620 (1951). Appellant’s second ground of error is overruled.

Finally, in his third ground of error, appellant contends that there was insufficient evidence to support the verdict that appellant was guilty of burglary of a habitation. There is sufficient evidence to sustain a conviction for burglary if the evidence shows that appellant was in possession of recently stolen property and (1) the possession is personal to defendant, (2) the possession is recent, (3) the possession is unexplained, and (4) the possession involves a distinct and conscious assertion of right to the property by defendant. See Jackson v. State, 645 S.W.2d 303, 306 (Tex.Crim.App.1983); Williams v. State, 621 S.W.2d 613 (Tex.Crim.App.1981), cert. denied, 456 U.S. 908, 102 S.Ct. 1755, 72 L.Ed.2d 165 (1982); Ward v. State, 581 S.W.2d 164, 168 (Tex.Crim.App.1979). In the case at bar, the testimony adduced at trial met these criteria. The evidence established that on the afternoon after the burglary, appellant pawned complainant’s stolen high school class ring. This evidence was sufficient to sustain a conviction for burglary of a habitation.

Appellant argues that the State failed to carry its burden of proof because it did not offer evidence to refute the explanation offered by appellant’s girl friend at trial. (She testified that appellant found the ring at a playground). However, the State had no obligation to disprove the explanation proferred by appellant’s girlfriend, because it was made for the first time at trial. See Espinosa v. State, 463 S.W.2d 8, 10 (Tex.Crim.App.1971). Furthermore, the jury was entitled to consider her past criminal record (she admitted she was on probation for burglary) and her relationship to the accused in evaluating her explanation and weighing her credibility. See Chasco v. State, 154 Tex.Crim. 239, 226 S.W.2d 447, 448 (1950). Appellant’s third ground of error is overruled.

The judgment below is affirmed.


text:
    Phyllis Lynn SUBLETT, Plaintiff, v. UNITED STATES of America, Defendant.
    Supreme Court of Kentucky.
    April 11, 1985.
    Michael Fleet Johnson, Pikeville, for plaintiff.
    David Y. Olinger, Asst. U.S. Atty., Lexington, for defendant.
   CERTIFICATION OF LAW.

The plaintiff in this action in the United States District Court for the Eastern District of Kentucky was injured when she stepped into a small ditch at Dewey Lake Park in Floyd County, Kentucky. It is stipulated herein as follows:

(1) On the 28th day of August, 1982, in an area within the Dewey Lake Park in Floyd County, Kentucky, which is under the jurisdiction and control of the Army Corps of Engineers, Huntington District Office, Huntington, West Virginia, an accident occurred. The plaintiff, Phyllis Lynn Sublett, stepped into a ditch causing an injury to her ankle which necessitated surgery and corrective treatment.

(2) The park did not charge and the plaintiff did not pay a fee for her use of the premises at said time and place.

(3) Kentucky Revised Statute 411.190, among other things, provides in substance that an owner of land, who makes it available to the public for recreational purposes without payment of fees, is under no general duty and a person entering upon the premises takes the land as he finds it to be.

(4) The Constitution of the State of Kentucky provides:

Section No. 14, Courts to be open.
Section No. 54, Injury to person or property, recovery not to be limited.

The following questions of law were certified to this court by the Honorable G. Wix Unthank, Judge of the United States District Court:

(1) Is Kentucky Revised Statute 411.190 contrary to Sections 14 and 54 of the Kentucky Constitution?

(2) Is public land under the control and jurisdiction of Federal and/or State agencies within the meaning of Kentucky Revised Statute 411.190?

The statute in question is adequately summarized in the stipulated statement of facts, above, except that the statute does provide that the owner of such land is liable if the failure to guard against or warn of a dangerous condition is willful or malicious.

We will examine the questions certified in reverse order for the simple reason that, should we determine the United States of America is not an “owner of land” as contemplated by the statute, there would be no reason to reach the constitutionality of the statute.

KRS 411.190(l)(b) reads as follows:

“Owner” means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.

As set out in the stipulation, the defendant herein has the jurisdiction and control of the premises. No exception is contained in the statute as it relates to recreational property for the use of which no fee is charged. Additionally, 28 U.S.C. § 2674 states as follows:

§ 2674. Liability of United States.
The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.

Thus, we certify that the United States of America is an owner within the definition contained in KRS 411.190(l)(b) and that the entire statute is applicable to the United States of America.

Next, we certify that the statute is constitutional. The declared purpose of this section is:

411.190(2) The purpose of this section is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.

In encouraging dedication of land for recreational use by land owners, the statute creates a class of users which by such dedication loses its label as trespassers but does not acquire the label of invitees. We feel this is a reasonable classification and do not feel there is any violation of § 14, § 54, or any other pertinent section of the Kentucky Constitution.

The law is so certified.

Full court sitting.

STEPHENS, C.J., and AKER, GANT, LEIBSON, STEPHENSON and WINTER-SHEIMER, JJ., concur.

VANCE, J., does not concur.


author: GANT, Justice. STEPHENSON, Justice, VANCE, Justice,

text:
    Charles Leslie LOVETT, Movant, v. Nancy Wright LOVETT, Respondent.
    Supreme Court of Kentucky.
    April 11, 1985.

      William Ward Allen, Jr., Caudill & Allen, Bowling Green, for movant.
    Joe B. Campbell, Campbell, Smith, Ker-rick & Grise, Bowling Green, for respondent.
   GANT, Justice.

Discretionary review was accepted in this action for dissolution in an effort to resolve the uncertainties which have arisen as a result of Inman v. Inman, Ky.App., 578 S.W.2d 266 (1979), referred to as Inman I, and obiter dictum in Inman v. Inman, Ky., 648 S.W.2d 847 (1982), referred to as Inman II. These cases and their progeny have created what we will categorize as a “diploma dilemma” throughout the law of this state. This “diploma dilemma” is the treatment of a professional degree and ensuing license in those instances where there is insufficient property from which one spouse can provide for his or her reasonable needs.

Leslie and Nancy Lovett married in 1966, when both were high school seniors and 17 years of age. Their only child, a son, was born the following year. Both enrolled in Western Kentucky University and graduated in 1971, their principal support during this interval coming from their respective parents. In the fall of 1971, the couple and their child moved to Louisville, where Leslie enrolled in medical school at the University of Louisville and Nancy secured a teaching position. Nancy subsequently attained a master’s degree in counseling and worked as a teacher and counselor until the summer of 1977. In the same period, between the fall of 1971 and the summer of 1977, Leslie received his medical degree and completed his internship and his residency in emergency medicine.

Shortly after moving to Bowling Green and establishing his practice, Leslie informed his wife that he desired a divorce in order to marry someone else. Action for dissolution of marriage was filed, but the parties reconciled shortly thereafter, and Nancy resigned her tenured position and moved to Bowling Green to reunite the family. At this juncture, she withdrew her retirement fund of some $4,000 to defray the cost of moving. In this period between 1971 and 1977, Nancy contributed some $37,000 to the support of the family, and Leslie about $9,000, an 80%/20% ratio. The parties purchased the farm in Warren County in 1978 and resided thereon until a second separation early in 1980, which led to this action for dissolution of marriage.

The trial court found the marriage irretrievably broken and entered a Decree of Dissolution, awarding joint custody of the son for a temporary period, with the ultimate question of custody to be later decided by the court. The trial court made division of the marital property and the nonmarital property, and awarded maintenance to the wife of $1,750 per month for ten years, or until the death or remarriage of the wife, whichever is the former. It is the maintenance award which is the principal issue in this case, said award having been affirmed by the Court of Appeals. The basis of this award by the trial court was its finding that: (1) Nancy lacked sufficient property, including her division of the marital property herein, to provide for her reasonable needs; (2) Despite her education and experience and despite her diligent efforts to secure gainful employment, she was not able to support herself according to the standard of living established during the marriage; and (3) Charles had income in the year ending June 30, 1981, of about $125,000.

The trial court and the Court of Appeals, relying principally upon decisions of the latter and the dicta in Inman II, held that the proper solution of this “diploma dilemma” was to treat the professional degree and license as a source of maintenance and not as property capable of division under KRS 403.190. It is our position that this is correct. In Inman II, this court cited with approval certain language in Mahoney v. Mahoney, 182 N.J.Super. 598, 442 A.2d 1062 (1982), in speaking of a license or degree when that court stated:

It does not have an exchange value or any objective transferable value on an open market. It is personal to the holder. It terminates on the death of the holder .and is not inheritable. It cannot be assigned, sold, transferred, conveyed or pledged. An advanced degree is a cumulative product of’many years of previous education, combined with diligence and hard work. It may not be acquired by the mere expenditure of money. It is simply an intellectual achievement that may potentially assist in the future acquisition of property ...

KRS 403.200, our statute pertaining to maintenance, provides:

403.200. Maintenance — Court may grant order for either spouse. — (1) In a proceeding for dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of a marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
(a) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and
(b) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:
(a) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(c) The standard of living established during the marriage;
(d) The duration of the marriage;
(e) The age, and the physical and emotional condition of the spouse seeking maintenance; and
(f) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

This court interpreted KRS 403.200(1), in Casper v. Casper, Ky., 510 S.W.2d 253, 255 (1974), to mean that:

... maintenance may be awarded only after a finding that the spouse seeking maintenance (a) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (b) is unable to support himself through appropriate private employment according to the standard of living established during the marriage.

Casper thus sets out the threshold which must be crossed before we consider the amount of maintenance. There is no question herein concerning the lack of sufficient property to provide for the reasonable needs of the wife, inasmuch as Nancy’s total assets were slightly in excess of $25,000. There was also no abuse of discretion in the finding by the trial court that Nancy has been unable to support herself through “appropriate private employment,” despite her educational background and her best efforts at securing work.

We must then consider whether the maintenance awarded herein constitutes an abuse of discretion, and in so doing examine the meaning of the phrase “standard of living established during the marriage” contained in KRS 403.200(l)(b) by judicial decision, and expressly contained in KRS 403.200(2)(c). In making our determination, we first note that the key word is the word “established.” Although numerous cases since Casper, supra, have used the word “established” and “enjoyed” interchangeably, these are not words of the same definition or connotation. “Established” is customarily defined as “made firm,” “brought into existence,” “set on a firm basis,” “put into a firm position,” etc., and has its derivation from the Latin and French words “stabilire” or “stabilis,” meaning, literally, “stable.” “Enjoyed,” on the other hand, is derived from the French “en” plus “joie(r)” and means “took pleasure or satisfaction in.”

Thus, an “established” standard of living is not necessarily one which was “enjoyed” over a protracted period of time, but is the product of many factors. Although a professional degree, a license to practice, or an acquired specialty may not be property in the literal sense, they are assets of the marriage. For example, recognition of these as assets has been a long practice of lending institutions which make signature loans to newly practicing professionals. In the instant case, these assets were produced by the combined efforts of the husband, by his application of his abilities and his diligence, and by the contribution of the wife as a homemaker and mother, as well as her financial contribution of 80% of the income during the period these assets were acquired. Also, these are assets which of themselves must be considered when contemplating “the standard of living established during the marriage.”

Herein, the court considered of primary importance the income of $125,000 attained by the professional spouse during the year commencing July 1, 1980, and ending June 30, 1981. During this entire period, the parties hereto were separated, so this standard of living was hardly “enjoyed.” The record discloses that the husband’s income for the two years next preceding the separation was $26,000 and $63,-500. However, we find no error in applying the 1981 figure as relating not only to KRS 403.200(2)(f) — the ability of the husband to pay — but also as indicia of the standard of living established during the marriage by attainment of the professional degree and license.

In examining the decisions of other states, we find no clear-cut solution to this “diploma dilemma.” Some states simply deny any recovery by the non-professional spouse. See In re Marriage of Graham, 194 Colo. 429, 574 P.2d 75 (1978). Some treat the degree as marital property, as in Moss v. Moss, Mich., 80 Mich.App. 693, 264 N.W.2d 97 (1978), and Vaclav v. Vaclav, 293 N.W.2d 613, 617 (1980). The court in Mahoney, supra, created an equitable remedy which it called “reimbursement alimony.” Indiana, in its code section 31-1-11.5-ll(c), has provided a statutory remedy, so when “there is little or no marital property, [the court] may award either spouse a money judgment not limited to existing property.”

It is our opinion that the problem is best solved by application of our existing statutory and case law and treating the professional degree and license as relevant factors to be considered in the standard of living established during the marriage, awarding maintenance based thereon. We are cognizant that this solution depends on the specific facts of each case, but this represents no radical departure from the law of domestic relations. We do not intend to sentence the professional spouse to servitude or award the non-contributing spouse with a meal ticket. As maintenance, the award may be modified in cases of unconscionability.

It is the holding of this court that a professional degree and a license to practice are relevant factors to be considered by the trial court in its determination of the standard of living established during the marriage, both as this standard relates to the ability of the non-professional spouse to support himself/herself and as it relates to the amount and period of time of the maintenance. Also, as maintenance, the amount may be modified under the provisions of KRS 403.250 if proper showing of uncon-scionability is made.

The other issue presented to us for review concerns the temporary custody provisions relating to the child, under which the court declared it would subsequently determine final custody. Because of the proximity of this child’s 18th birthday, we decline to reverse the Court of Appeals, which affirmed the trial court.

The opinion of the Court of Appeals is affirmed, and this case is remanded to the trial court for reallocation of certain non-marital property in conformity therewith.

STEPHENS, C.J., and AKER, LEIBSON, GANT and WINTERSHEIMER, JJ„ concur.

STEPHENSON and VANCE, JJ., concur in result only, each filing herewith a separate opinion concurring in result.

STEPHENSON, Justice,

concurring in result.

It is my opinion that the “maintenance” statute is simply not broad enough to cover the situation presented here. I believe that in order to justify this award of “maintenance” we should find that the ability to earn money by virtue of possessing a medical degree and license to practice medicine is a form of property in these circumstances.

Therefore, I concur in result only.

VANCE, Justice,

concurring in result.

This opinion affirms the award of maintenance by the trial court, and I concur in that result. In my opinion, however, this court has again displayed a disturbing tendency to rule upon matters which are unnecessary to the decision of the case.

The medical degree in this case was obtained in 1977, and by the time the dissolution of marriage was granted, the movant was earning $125,000 per year. The parties had acquired a large house and 97 acres of land in Warren County, and they had established a lifestyle which had already begun to reflect the financial potential of the medical degree and license.

The award of maintenance can be affirmed on the facts of this case. It is entirely unnecessary to the decision of this case for us to rule that the potential for increased earnings brought about by a professional degree and license is not an asset which can be considered in the division of marital property.

I believe, therefore, that we should wait for a case where the decision of this matter is necessary to the disposition of the case before we decide the question. In particular, I am thinking of a case where a divorce is granted immediately after the professional degree is obtained. Then, there would have been absolutely no opportunity for the married couple to have established a standard of living which reflected the potential of the increased earning capacity. All that they would have established would be years of sacrifice, willingly undertaken, because of the prospect of future advantages which they would share.

Divorce, shortly after obtaining the professional license, nullifies the prospect of the future mutual benefit from the shared sacrifices of the past. Furthermore, the parties are not equally equipped to fend for themselves.

Our statute does not authorize maintenance for a spouse who is able to maintain herself. In Casper v. Casper, Ky., 510 S.W.2d 253 (1974), we interpreted this to mean the inability of a spouse to support himself according to the standard of living established during the marriage. No case, to my knowledge, has extended this to mean “inability to support one’s self” according to a “potential for support” established during the marriage.

Thus, I cannot find authority for the use of a potential for increased earnings which has not yet occurred as a basis for an award of maintenance in excess of that necessary to maintain the spouse in accordance with the standard of living established by the parties. Some states consider the “potential for increased earning capacity” which accompanies a professional degree earned during the marriage as a marital asset in the division of marital property. In Re Marriage of Horstman, Iowa, 263 N.W.2d 885 (1978); Stern v. Stem, 66 N.J. 340, 331 A.2d 257 (1975).

Admittedly, the valuation of this potential for purposes of property division poses some difficulty, but no more difficulty, it seems to me, than a determination of the extent to which a professional degree should be considered in awarding maintenance.

My premise is not that we should in this case hold the potential of increased earning capacity which attends a professional degree to be marital property, but simply that we should not hold it is not marital property in a case where such a holding is entirely unnecessary to the disposition of the case.