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+"{\"id\": \"10009454\", \"name\": \"Greg URQUHART, Individually & as Next Friend for David Urquhart, a Minor, Appellant, v. Curtis Elijah ANTRUM & Yellow Cab Company, Appellees\", \"name_abbreviation\": \"Urquhart v. Antrum\", \"decision_date\": \"1988-12-22\", \"docket_number\": \"No. A14-88-214-CV\", \"first_page\": \"595\", \"last_page\": \"598\", \"citations\": \"776 S.W.2d 595\", \"volume\": \"776\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T23:12:31.437839+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before J. CURTISS BROWN, C.J., and MURPHY and ROBERTSON, JJ.\", \"parties\": \"Greg URQUHART, Individually & as Next Friend for David Urquhart, a Minor, Appellant, v. Curtis Elijah ANTRUM & Yellow Cab Company, Appellees.\", \"head_matter\": \"Greg URQUHART, Individually & as Next Friend for David Urquhart, a Minor, Appellant, v. Curtis Elijah ANTRUM & Yellow Cab Company, Appellees.\\nNo. A14-88-214-CV.\\nCourt of Appeals of Texas, Houston (14th Dist.).\\nDec. 22, 1988.\\nRandy L. Fairless, Houston, for appellant.\\nJeffery L. Scott, Tom A. Dickens, Houston, for appellees.\\nBefore J. CURTISS BROWN, C.J., and MURPHY and ROBERTSON, JJ.\", \"word_count\": \"1548\", \"char_count\": \"9628\", \"text\": \"OPINION\\nMURPHY, Justice.\\nThis appeal follows a suit for personal injuries. Curtis Elijah Antrum was driving a taxi for the Yellow Cab Company in the parking lot of a Houston strip center when his cab struck and injured David Urquhart, a pedestrian. David suffered a broken leg in the accident. Individually and on his son David's behalf, appellant Greg Urquhart sued Antrum and Yellow Cab, the appel-lees. A jury found David ninety-five percent negligent. We conclude the trial court erroneously admitted Antrum's hearsay statements contained in the police report.\\nIn his first point of error, the appellant maintains the trial court erred by permitting the investigating police officer to testify concerning the cause of the accident. Appellant has not referred us to specific portions of the record in compliance with Tex.R.App.P. 74(d) & (f). As best we can determine from his brief and oral argument, he complains of portions of the officer's deposition testimony in which he opined that the cab driver was not the direct cause of the accident but that David's failing to look was. Appellant did not object to the two questions appellants posed or the officer's answers. In the absence of a proper, timely objection, appellant has waived any error. Tex.R.App.P. 52(a); see Tex.R.Civ.Evid). 103(a)(1); Pool v. Ford Motor Co., 715 S.W.2d 629, 637 (Tex.1986) (opinion on rehearing); Wilfin, Inc. v. Williams, 615 S.W.2d 242, 244 (Tex.Civ. App.\\u2014Dallas 1981, writ ref'd n.r.e.). Although appellant made a preliminary objection to the officer's qualifications this could not preserve error in admitting the officer's statements to which appellant did not object. In re Dahl, 590 S.W.2d 191, 199 (Tex.Civ.App.\\u2014Amarillo 1979, writ ref'd n.r.e.). We overrule the first point of error.\\nIn his second point of error, the appellant contends the trial court erred because it overruled his objections to the investigating police officer's testifying, by deposition, to statements recorded in his police report at the scene of the accident. The cab driver, Curtis Antrum, and a witness, Frances Ward, made the statements. Neither testified at trial. The trial court withdrew its original ruling sustaining appellant's objections to Ward's statement and permitted the officer's deposition testimony in which he referred to both her statement and Ant-rum's. The record does not reflect the court's reasons for its rulings. We conclude the trial court committed reversible error when it overruled appellant's hearsay objections to both statements.\\nUnless Tex.R.Civ.Evid. 801(e) defines the statement as non-hearsay, or unless the law provides an exception, an out-of-court statement offered for its truth is inadmissible. Tex.R.Civ.Evid. 802. By the express provisions of Tex.R.Civ.Evid. 801(e)(3) and Tex.R.Civ.P. 207, the officer's deposition testimony is non-hearsay and Tex.R.Civ. Evid. 803(6) creates an exception for those contents of the report which the officer made on personal knowledge. But the statements by Antrum and Ward, which the officer recorded in his report, are a different matter.\\nAppellant objects first to the following statement by Antrum: \\\"I was driving west in the parking lot and the kid ran out from behind the van and slipped and I swerved and caught his leg.\\\" Because Antrum did not testify at the trial, none of the exceptions in Rule 801(e)(1) apply. Because the statement was offered by, rather than against, the appellees, it does not constitute an admission by a party opponent under Rule 801(e)(2). See 1A C. McCormick & R. Ray, Texas Law of Evidence Civil & CRIMINAL \\u00a7 786 at 13 (Texas Practice Ed. 1980 & Supp.1986) [hereinafter \\\"Texas Law of Evidence\\\"]. And since Antrum did not make his statement at a deposition, Rule 801(e)(3) does not apply. Accordingly, the statement cannot escape hearsay status under Rule 801 and is hearsay, an out of court statement offered for its truth. Tex.R.Civ.Evid. 801(a)-(d); see Turner, Collie & Braden v. Brookhollow, Inc., 642 S.W.2d 160, 167 (Tex.1982).\\nAs hearsay, Antrum's statement would be properly admissible only under an exception to the hearsay rule. Tex.R.Civ.Evid. 802. As hearsay within a hearsay excep tion, Antrum s statement must independently satisfy an exception to the hearsay rule. Tex.R.Civ.Evid. 805. All hearsay exceptions require a showing of their trustworthiness. Robinson v. Harkins & Co., 711 S.W.2d 619, 621 (Tex.1986).\\nThe appellees maintain the statement qualifies as an excited utterance under Rule 803(2). We disagree. Rule 803(2) creates a hearsay exception for \\\"[a] statement describing or explaining an event or condition made while the declarant was under the stress of excitement caused by the event or condition.\\\" Rule 803(2) appears to codify Texas common law which has required a showing that the declarant made the \\\"res gestae\\\" statement spontaneously, without reflection, in response to the exciting event and, therefore, within a close time proximity to the exciting event. E.g., Richardson v. Green, 677 S.W.2d 497, 500 (Tex.1984); Truck Ins. Exch. v. Michling, 364 S.W.2d 172, 174 (Tex.1963); 1A Texas Law of Evidence \\u00a7 917.\\nWhile the record shows that the officer arrived at the scene within six minutes of the accident, there is no showing that Ant-rum gave his statement at that time. Indeed, the officer testified to the many tasks he must perform at the scene of an accident before interviewing persons at the scene. Thus, while no precise time period is too long or too short, 1A Texas Law of Evidence \\u00a7 917 at 161, it is not clear exactly how long Antrum waited before giving his statement to the investigating officer. The circumstances in this case show only that Antrum \\\"appear[ed] to be excited.\\\" There is no showing that his excitement was spontaneous or in response to the accident. Nor is there a showing that Antrum did not make the statement in response to the investigating officer's questions, a factor which mitigates against spontaneity. See 1A Texas Law of Evidence \\u00a7 914 at 155. Rather, the record suggests that Ant-rum had time to reflect and gave his statement to the officer in order to shift blame for the accident. Compare Jones v. Hopper, 506 S.W.2d 768, 770 (Tex.Civ.App\\u2014Houston [14th Dist.] 1974, no writ) (inculpatory statement made within minutes of accident by injured defendant who did not testify at trial, held admissible as spontaneous utterance). If its decision to permit Antrum's statement rests on Rule 803(2), we conclude the trial court abused its discretion.\\nSimilarly, while Antrum's statement describes or explains the accident, there is no showing, under Tex.R.Civ.Evid. 803(1), that he made the statement while perceiving the accident or \\\"immediately thereafter.\\\" Since Rule 803(l)'s present sense impression exception requires an even closer time proximity than the excited utterance exception, we hold that Rule 803(1) does not provide an alternative basis for the hearsay reference to Antrum's statement. See 1A Texas Law of Evidence \\u00a7 916 at 33 (Supp.1986). Moreover, while the hearsay statement shows that Antrum admits hitting David, the overriding thrust of his statement is exculpatory because it tends to shift blame for the accident to David. Accordingly, Tex.R.Civ.Evid. 803(24), which creates an exception for statements against interest, does not apply to this case. Robinson, 711 S.W.2d at 621; Duncan v. Smith, 393 S.W.2d 798, 803 (Tex.1965).\\nAppellant also complains of the trial court's permitting the officer's hearsay reference to the following statement by the witness Ward: \\\"That the boy ran out from the store, ran in front of the cab, the kid did not look and ran out from behind the van.\\\" Although the appellees contend Ward's statement qualifies as an excited utterance under Rule 803(2), we further hold that the trial court erred by overruling appellant's hearsay objection to her statement. There is no showing that Ward was excited when she made the statement, or that she made the statement spontaneously, in response to the accident and within a close time proximity to the accident.\\nThe appellees contend that any error in permitting Antrum's and Ward's hearsay statements is harmless because the statements corroborate David's own responses under direct and cross examination. We cannot agree. David did concede that he looked to the right, but looked to the left, from whence the taxicab came, only as he was being hit. However, only Antrum's statement indicates that David \\\"slipped\\\" and only Antrum's statement indicates that he swerved to avoid hitting David. Moreover, while David's testimony is not without conflict, he never conceded that he ran, rather than walked, into the path of the oncoming taxi, as both Ward and Antrum maintained. We conclude the trial court erred when it permitted the reference to both hearsay statements because no hearsay exception made them admissible. We further hold that permitting Ant-rum's and Ward's statements amounted to such a denial of appellant's rights as was reasonably calculated to cause and did cause rendition of an improper judgment. Tex.R.App.P. 81(b)(2).\\nWe sustain appellant's second point of error. Accordingly, we reverse the judgment of the trial court and remand this cause for a new trial.\"}"
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+"{\"id\": \"10009828\", \"name\": \"Fito Diaz HERNANDEZ, a/k/a Alberto Hernandez, Appellant, v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Hernandez v. State\", \"decision_date\": \"1991-02-21\", \"docket_number\": \"No. 13-90-152-CR\", \"first_page\": \"858\", \"last_page\": \"860\", \"citations\": \"805 S.W.2d 858\", \"volume\": \"805\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T20:41:38.147648+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before NYE, C.J., and SEERDEN and HINOJOSA, JJ.\", \"parties\": \"Fito Diaz HERNANDEZ, a/k/a Alberto Hernandez, Appellant, v. The STATE of Texas, Appellee.\", \"head_matter\": \"Fito Diaz HERNANDEZ, a/k/a Alberto Hernandez, Appellant, v. The STATE of Texas, Appellee.\\nNo. 13-90-152-CR.\\nCourt of Appeals of Texas, Corpus Christi.\\nFeb. 21, 1991.\\nYolanda Jurado, Edinburg, for appellant.\\nRene Guerra, Theodore C. Hake, Dist. Attorney\\u2019s Office, Edinburg, for appellee.\\nBefore NYE, C.J., and SEERDEN and HINOJOSA, JJ.\", \"word_count\": \"1204\", \"char_count\": \"7344\", \"text\": \"OPINION\\nNYE, Chief Justice.\\nA jury found appellant, Fito Diaz Hernandez, guilty of voluntary manslaughter and assessed as punishment twenty years' confinement in the Texas Department of Criminal Justice, Institutional Division, plus a $10,000.00 fine. By two points of error, appellant complains that the trial court erred in refusing to grant a mistrial, and that the jury considered the parole law in assessing punishment. We affirm the trial court's judgment.\\nThe State's evidence shows that on June 9, 1989, Officer Jaime Yasquez responded to a call relating to a woman screaming. Upon arrival, he saw appellant running through an alley in a \\\"crouched down manner.\\\" Police stopped the appellant. He told them that he had been involved in a fight at his residence. He pointed to the area where Officer Vasquez had first spotted him. Yasquez returned to the house where appellant had initially taken flight. A vehicle was parked in front of the house. Domingo Arrellano's body was partially underneath the vehicle. Arrellano had approximately five stab wounds and twenty cuts and abrasions to his body. Appellant told police that Arrellano came to his residence demanding beer. A fight ensued, and he stabbed Arrellano in the chest.\\nThe defense version of the events, showed that appellant and Arrellano arrived at appellant's residence together. They sat on the front steps and drank beer. Arrellano demanded more beer or money. He then decided to search the house for appellant's wallet. He tackled appellant and tried to choke him. Appellant grabbed a knife, put it to Arrellano's throat and took him outside. They tripped on the front steps and fell. Appellant stabbed Arrellano in the throat.\\nBy point one, appellant complains that the trial court erred in denying his motion for mistrial. He contends that the admission of blood spatter evidence violates the due process clause of the Fourteenth Amendment and the due course of law provision of Article 1, Section 19 of the Texas Constitution. After the defense rested its case, the State called Benjamin Wolfe as a rebuttal witness. Wolfe's testimony concerned a blood spatter investigation which he performed at the crime scene. He said that blood can produce a specific pattern when it contacts a surface. Blood spatter interpretations are used to determine the blood's origin, its distance from the point of origin, the number of blows to the victim, the positions of the attacker and the victim, and whether the victim was moved. Wolfe said that in this case, the blood spatters outside appellant's residence were consistent with violence and a lot of movement. Wolfe found no signs of blood or of a struggle inside the residence.\\nDuring Wolfe's cross-examination, the State gave counsel a copy of Wolfe's report and diagram pertaining to his investigation. Counsel told the trial court that she had not previously seen the report or diagram, and, therefore, did not have the opportunity to retain an expert to counter Wolfe's testimony. Counsel also told the trial court that even though she knew that the State listed Wolfe as a witness, she did not know that the State would call him as a rebuttal witness. Counsel made a motion that she be allowed time to retain an expert. The court granted the motion and postponed the case. Later, the trial court denied the motion. Counsel moved for a mistrial on the grounds that she did not receive a copy of Wolfe's report, that she was denied the opportunity to retain an expert, and that Wolfe's testimony had tainted the jury. The trial court denied the motion for mistrial and instructed the jury to disregard Wolfe's testimony. Counsel again moved for a mistrial, and the trial court overruled the motion.\\nAppellant's point of error is directed to the trial court's admission of Wolfe's testimony. An objection to testimony must be urged at the earliest opportunity in order to preserve error for appellate review. Marini v. State, 593 S.W.2d 709, 714 (Tex.Crim.App.1980); Duenez v. State, 735 S.W.2d 563, 565 (Tex.App.\\u2014Houston [1st Dist.] 1987, pet. ref d); Tex.R.App.P. 52(a); Tex.R.Crim.Evid. 103(a)(1). Here, in the instant case, appellant did not object to Wolfe's testimony until after he completed testifying on direct-examination. There is nothing preserved for review. In any event, an instruction to disregard is sufficient to cure error unless the testimony is clearly calculated to inflame the minds of the jury and is of such character that it suggests the impossibility of withdrawing the impressions produced. Livingston v. State, 739 S.W.2d 311, 335 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988); West v. State, 790 S.W.2d 3, 4-5 (Tex.App.\\u2014San Antonio 1989, no pet.). We find nothing to indicate that Wolfe's testimony could not be cured by the instruction.\\nBy point two, appellant complains that the jury improperly considered the parole law in assessing punishment. He contends that the jury's conduct violated the due process clause of the Fourteenth Amendment and Article 1, Section 19 of the Texas Constitution. After the jurors had retired to deliberate on appellant's punishment, the trial court received a note from the jury which read, \\\"We want to know if the Defendant will serve the full amount of years given by the jury?\\\" The court responded, \\\"You are not to consider the decision of this issue. That is solely up to the authority of the Board of Pardons and Paroles.\\\" Appellant asserts that based upon the jurors' question, and their assessment of the maximum punishment, no other conclusion can be reached but that they considered the parole law in assessing punishment.\\nIf a defendant has not received a fair and impartial trial as a result of jury misconduct, a new trial may be granted. Beck v. State, 573 S.W.2d 786, 789 (Tex.Crim.App.1978); Tex.R.App.P. 30(b)(8). To show that a jury's discussion of the parole law constitutes reversible error, the defendant has an onerous burden. He must show that there was: (1) a misstatement of the law; (2) asserted as a fact; (3) by one professing to know the law; (4) which was relied upon by other jurors; (5) who for that reason changed their vote to a harsher punishment. Callins v. State, 780 S.W.2d 176, 191 (Tex.Crim.App.1989), cert. denied, \\u2014 U.S. -, 110 S.Ct. 3256, 111 L.Ed.2d 766 (1990); Sneed v. State, 670 S.W.2d 262, 266 (Tex.Crim.App.1984). To determine if the five requirements were met, the reviewing court must have an adequate record. The record must show that the jury's discussion of parole was such misconduct that denied the defendant of a fair and impartial trial. Samuels v. State, 785 S.W.2d 882, 888 (Tex.App.\\u2014San Antonio 1990, pet. ref'd). In the instant case, appellant did not allege jury misconduct in his motion for new trial, nor did he present any evidence on this issue. Absent an adequate record, we cannot determine whether the jury's discussion or not of the parole law constituted reversible error.\\nThe trial court's judgment is AFFIRMED.\"}"
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+"{\"id\": \"10010281\", \"name\": \"Clarence HALL, Appellant, v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Hall v. State\", \"decision_date\": \"1993-08-25\", \"docket_number\": \"No. 09-92-046 CR\", \"first_page\": \"710\", \"last_page\": \"719\", \"citations\": \"862 S.W.2d 710\", \"volume\": \"862\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T21:29:56.847804+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.\", \"parties\": \"Clarence HALL, Appellant, v. The STATE of Texas, Appellee.\", \"head_matter\": \"Clarence HALL, Appellant, v. The STATE of Texas, Appellee.\\nNo. 09-92-046 CR.\\nCourt of Appeals of Texas, Beaumont.\\nAug. 25, 1993.\\nTom Brown, Livingston, for appellant.\\nRobert Hill Trapp, Cr. Dist. Atty., Coldspring, for the State.\\nBefore WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.\", \"word_count\": \"4799\", \"char_count\": \"29455\", \"text\": \"OPINION\\nPER CURIAM.\\nAppellant was charged with three offenses, aggravated robbery, aggravated kidnapping and aggravated sexual assault. He plead not guilty to each. The jury found him guilty of aggravated robbery and aggravated sexual assault. An instructed verdict of not guilty was granted by the trial court on aggravated kidnapping. The indictment contained 15 enhancement paragraphs. Appellant plead \\\"not true\\\" to all the enhancement paragraphs. The jury sentenced appellant on both offenses to life in the Institutional Division of the Texas Department of Criminal Justice and a fine of $10,000, coupled with a finding of true as to at least two enhancement paragraphs. Appellant's counsel unequivocally stated that after a thorough and diligent search and review of the record and the law applicable thereto, he concluded that the appeal was and is wholly without merit, citing Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); High v. State, 573 S.W.2d 807 (Tex.Crim.App.1978) and Currie v. State, 516 S.W.2d 684 (Tex.Crim.App.1974). Thereafter appellant filed a pro se brief. In his brief appellant concedes the record reflects he committed aggravated robbery and aggravated sexual assault.\\nPartial Statement of Facts\\nThe victim testified that on April 4, 1991, she was operating a store in San Jacinto County. When she arrived at the store at about 6:35 a.m. several people, including appellant, were waiting. After the others had left, appellant entered the store holding a gun covered with a towel. The victim testified appellant took money from the cash register and her purse. Appellant then put the gun to her back and ordered her to go with him.\\nAppellant ordered the victim into the back seat of a vehicle and ordered her to remove her shirt and pants. Appellant stopped the vehicle in a wooded area, instructed her to get out, removed her underwear and ordered her to take off her jewelry. Then appellant sexually assaulted the victim. During this assault the victim struck appellant who struck her back. Later appellant took the victim's necklace.\\nThe victim testified appellant had displayed and used a pistol and she was definitely in fear of her own life. Two other witnesses testified appellant was present at the store early in the morning. Employees of a store in Houston testified appellant had first used and then later on attempted to use, a credit card which had been in the victim's purse. Appellant's former girlfriend testified he came to her house in Houston the morning of April 4, 1991. He gave this former girlfriend a watch, two rings and a necklace, which were identified as belonging to the victim. The girlfriend testified appellant also had a money sack, some credit cards, a female's driver license and a pistol.\\nAppellant's niece testified he had lived at her house in Houston during the relevant time. The niece stated appellant was not there on the morning of April 4,1991. However, later, upon a search by peace officers, a gun and the victim's bank bag were found in the niece's house. A criminologist testified that she, the criminologist, had examined the victim's shirt and found semen on it. A Dr. Giles, who was a scientific director for Gen-eScreen, testified that he, and others under his direct supervision, tested various substances using a DNA fingerprinting technique. He stated that the DNA results, from a sample taken from appellant, matched a vaginal swab taken from the victim after the sexual assault. He further testified that appellant's DNA pattern was found in his own particular population in only one out of every 797,000 people.\\nA chemist with the Department of Public Safety testified that hair taken from the gun found in the appellant's residence was consistent with hair samples taken from the victim.\\nAppellant sets out twenty-one points of error. The first point alleges the trial court erred in not sustaining defense counsel's objections to tape recordings of telephone conversations between appellant and his girlfriend. Law enforcement officers went to the girlfriend's apartment and received permission to record conversations between herself and appellant. Counsel objected to the tapes based upon their quality, claiming they were unintelligible. Appellant now claims the tapes were inadmissible in violation of the Texas wiretap statute, Tex. Code CRIM.PROcAnn. art. 18.20, \\u00a7 3(b), 5(a), 14(b)(1) (Vernon Supp.1993). Points of error which do not correspond to the objection at trial are waived and nothing is preserved for review. Fuller v. State, 827 S.W.2d 919 (Tex. Crim.App.1992). Furthermore, the restrictions of the wiretap statute do not apply when a private individual consents to the taping of conversation with a defendant, even without the knowledge or consent of the defendant. See McDuffie v. State, 854 S.W.2d 195 (Tex.App.\\u2014Beaumont 1993, pet. filed); Ward v. State, 787 S.W.2d 116, 119 (Tex.App.\\u2014Corpus Christi 1990, pet. refd). This point of error is overruled.\\nThe next point of error urges the trial court erred in not forcing the state to make an election upon which count to proceed under the three count indictment. Appellant relies upon Holcomb v. State, 745 S.W.2d 903 (Tex.Crim.App.1988) for the proposition that Aggravated Sexual Assault and Aggravated Robbery may not be alleged in the same indictment. However, since the trial in Holcomb TexPenal Code Ann. \\u00a7 3.01 (Vernon Supp.1993) has been amended and it is permissible for a defendant to be prosecuted in a single criminal action for all the offenses arising out of the same criminal episode. See Letson v. State, 805 S.W.2d 801 (Tex.App.\\u2014Houston [14th Dist.] 1990, no pet.).\\nPoint of error number three alleges error in overruling counsel's hearsay objection to the question \\\"Did he give you any names regarding the name of the individual that did this?\\\" The question was asked in relation to appellant's use of a credit card belonging to the victim. The manager of a sporting goods store identified appellant as the person who had bought items using the credit card. The manager testified he had been contacted by an individual, Will Morris, who stated he might have knowledge about the credit card fraud. The witness was allowed to answer the question presented, but did not testify as to the name. Later Will Morris testified, without objection, that he had talked to the store manager and had given appellant's name to both the manager and the authorities. Consequently, we need not determine whether the first instance was error or not, for the same evidence was later admitted without objection, thereby curing any error. Lewis v. State, 759 S.W.2d 773 (Tex.App.\\u2014Beaumont 1988, no pet.). This point of error is overruled.\\nThe next point of error asserts the trial court erred in failing to sustain appellant's objection to the state amending the indictment. The indictment had fifteen enhancement paragraphs. During the reading of the enhancement paragraphs, at the beginning of the punishment phase, the state omitted paragraph number 12. After appellant plead \\\"Not True\\\" and the state had called its first witness, counsel objected to the state omitting paragraph twelve. The prosecutor responded it was within the state's prerogative and the court allowed the state to omit paragraph twelve. This was no.t an amendment of an indictment to correct or add allegations. See and compare Sodipo v. State, 815 S.W.2d 551, 555-556 (Tex.Crim. App.1990); Strickland v. State, 827 S.W.2d 406 (Tex.App.\\u2014Corpus Christi 1992, no pet.). The state may, with the permission of the trial court, abandon paragraphs or specific allegations of an indictment. Ex parte Scelles, 511 S.W.2d 300 (Tex.Crim.App.1974); Rodriguez v. State, 449 S.W.2d 469 (Tex. Crim.App.1970). This point of error is overruled.\\nPoints of error five through twenty-one complain of ineffective counsel.\\nThe Standard of Review on Effectiveness of Trial Counsel\\nThe landmark case on ineffectiveness of counsel is Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). It announces a two-prong test. First, an appellant must demonstrate counsel's performance was deficient, his professional assistance was not reasonably effective and his actions fell below community standards. Next, an appellant must also show that but for the lack of effective counsel the results or the outcome of the trial would have probably been different.\\nThe Strickland test has been adopted in Texas. An appellate court has to look at counsel's performance as of the date of trial. An isolated or infrequent failure to object to certain procedural mistakes or improper evidence does not constitute ineffective assistance. The totality of the trial counsel's conduct and performance must be reviewed and analyzed. The constitutional right of counsel as guaranteed by the fundamental laws of both the United States and Texas does not mean an errorless trial. Importantly upon an appellate review, the judicial scrutiny of an intermediate appellate court must be highly deferential to the trial lawyer and his trial strategy. Any distorting effects of hindsight are to be eliminated and avoided. Even trial tactics that are not successful do not amount to ineffectiveness. Only reasonably effective assistance is required. Perhaps the final touchstone is a review of the totality of all the circumstances of the trial. Moreover, the allegations of ineffective assistance of counsel will only be sustained and adhered to if those same allegations are firmly established and founded. See Holland v. State, 761 S.W.2d 307, 319 (Tex.Crim.App.1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1560, 103 L.Ed.2d 863 (1989). Appellant first alleges his defense counsel was ineffective in that he failed to move to quash the jury panel. This point is based upon the contention that there was a discriminatory use of racially motivated peremptory strikes by the State which engaged and brought about the systematic exclusion of minority members from the jury. Appellant places major reliance on Keeton v. State, 724 S.W.2d 58 (Tex.Crim.App.1987).\\nAt the conclusion of the voir dire, the defense counsel exercised all of his peremptory strikes. The State, however, exercised only four of its ten. The jury was then seated and sworn. The record seems clear that the trial court diligently and conscientiously excused many of the jurors who had any question about their ability to be fair and impartial or who had heard anything about the case or who had formed any opinion no matter how slight.\\nThere is nothing in the record to indicate trial counsel objected to the racial make up of the jury. Nor is the racial makeup itself shown. The record does not indicate the race of any person struck by the state or by the defense. Appellant's brief makes no reference to the record. No argument, as such, is contained. Appellant has not demonstrated that trial counsel was ineffective in failing to move to quash the venire panel. Point of error number five is overruled.\\nAppellant has failed to show a systematic exclusion of potential minority jurors in a discriminatory manner that violated the appellant's rights to due process or the appellant's rights to equal protection, or the appellant's rights to a jury trial by a cross section of the community. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Again, the record is silent as to any pattern of strikes against any minority jurors. Point of error number six is overruled.\\nThe next point of error alleges counsel was ineffective by failing to object to the jury charge. Appellant states the jury charge was \\\"fundamentally erroneous in that it authorizes a conviction under every con-eeivable theory under Statutes rather than limiting conviction to the theory alleged in the indictment.\\\" His real argument is that the indictment does not allege \\\"serious bodily injury\\\" while the charge makes extensive use of it. The indictment alleges appellant committed the sexual assault by \\\"threats, force and violence.\\\" The charge defined aggravated sexual assault in terms of placing the victim in fear of serious bodily injury. The variance between the indictment and the charge was error. See Bonfanti v. State, 686 S.W.2d 149 (Tex.Crim.App.1985). If the point of error simply involved the jury charge, then an analysis under Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985) would be proper, i.e., since the error was unobjected to, whether in reviewing the entire jury charge, the state of the evidence and the record of the trial as a whole, was the error so egregiously harmful that appellant did not have a fair and impartial trial. However, this is not the standard of review under this point of error. We must look at counsel's failure to object. It can be argued that the charge places a higher burden on the state than did the indictment. Thus, it is certainly plausible that counsel did not object based upon trial strategy. This does not make his performance ineffective. Miniel v. State, 831 S.W.2d 310 (Tex.Crim.App.), cert. denied, \\u2014 U.S. -, 113 S.Ct. 245, 121 L.Ed.2d 178 (1992). The failure to object was not error. Point of error seven is overruled.\\nPoint of error eight urges ineffectiveness by not objecting to the prosecutor's opening statement reference to appellant. Contrary to appellant's assertion that this injected the prosecutor's personal prejudicial opinion, the remark was prefaced by a statement of what the State intended to prove and was proper. Marini v. State, 593 S.W.2d 709, 715 (Tex.Crim.App.1980). Counsel was not ineffective by failing to object to a proper opening statement. This point of error is overruled.\\nThe ninth point alleges counsel was ineffective by \\\"not moving to quash the improperly joined indictment.\\\" In view of our disposition of point of error two, this point is overruled.\\nPoint of error ten states counsel was ineffective in that he failed to object to extraneous testimony. The offending testimony was given by a witness who lived near the store. The witness testified appellant came to her residence on two occasions prior to the occurrence and asked directions to another house. All of the cases cited by appellant deal with extraneous offenses. This was not evidence of any extraneous offenses. It simply showed appellant was in the general area several days prior to the offense. We find no ineffective assistance. This point of error is overruled.\\nThe next point of error states counsel should have objected to conflicting testimony of witnesses. Appellant points out testimony during the guilt phase where a witness testified appellant came by her house on March 2, 1991, and testimony during the punishment stage where a witness stated appellant had been released on parole March 3, 1991. In the first place an objection was certainly not a proper vehicle. Appellant's real complaint is counsel's failure to somehow point out the inconsistent testimony, either by cross-examination or argument. However, appellant does not suggest how this tactic would have been helpful, much less its absence harmful. Nothing is presented for review. This point of error is overruled.\\nPoint of error twelve again urges error for failing to object to conflicting testimony. The victim testified appellant did not have a moustache. Another witness testified he saw appellant at the store the morning of the crime and appellant did have a moustache. As noted in the previous point of error, nothing is presented for review. This point of error is overruled.\\nThe thirteenth point of error alleges counsel was ineffective for not objecting to the introduction of a gun or moving to suppress the evidence. The victim identified the gun as the one appellant held on her during the robbery. Later, during cross-examination, she testified she really could not say whether the exhibit was the gun used or not. The gun was found at appellant's sister's house. A chemist testified that hair recovered from the gun and from the victim were similar. Pursuant to the execution of a search warrant, the gun was discovered, along with a bank bag taken in the robbery, in the residence where appellant was living. Appellant does not challenge the validity of the search warrant. He only advances the point of error because the victim equivocated on the identification of the weapon. Even with the equivocation, the gun was admissible. This point of error is overruled.\\nThe next point of error alleges ineffectiveness of counsel based on a failure to object to physical evidence taken from appellant. Samples of appellant's head hair, pubic hair, saliva and blood were taken from appellant at a hospital in Cleveland, Texas. These were taken after a search warrant was issued authorizing the taking of these samples. Appellant urges counsel should have objected to the introduction of the evidence or moved to suppress it. This would have been fruitless in light of a valid search warrant. Appellant produces nothing showing counsel had not reviewed the warrant. In fact, counsel had filed a motion for discovery requesting a copy of any search warrants and results of any scientific tests. Appellant has presented nothing but conjecture for review. This point of error is overruled.\\nPoint of error fifteen alleges counsel was ineffective for not objecting to hearsay testimony, that of Will Morris. Appellant asserts Morris' entire testimony is \\\"predicated on hearsay\\\", yet does not point to what particular portion of Morris' testimony is tainted. This allegation is only conclusory and presents nothing for review. We find no error. This point of error is overruled.\\nThe next point of error complains that counsel was ineffective in \\\"not objecting to 'conflict of interest' issue\\\". Appellant argues that the justice of the peace who arraigned appellant and set bail was the victim's spouse's uncle and was thus prejudiced. It appears the justice of the peace was related to the victim within the third degree of affinity, Tex.Rev.Civ.Stat.Ann. art. 5996h (Vernon Supp.1993). Thus, the justice of the peace was disqualified. Tex.Code CRIM.PROG. Ann. art. 30.01 (Vernon Supp.1993). However, all of the actions taken by the justice of the peace were prior to indictment. Therefore, the pre-indictment arraignment and setting of bonds were mooted by the indictment. Trial counsel had no basis for any \\\"conflict of interest\\\" objection during the district court trial. This point of error is overruled.\\nThe seventeenth point of error urges ineffectiveness for failing to move to suppress the evidence obtained as a result of the search warrant issued for appellant's residence. He also argues ineffectiveness for failing to object to the introduction of the items at trial. As with point of error fourteen, this would have fruitless in light of a valid search warrant. Appellant produces nothing showing counsel had not reviewed the warrant. In fact, counsel had filed a motion for discovery requesting a copy of any search warrants and results of any scientific tests. Appellant has presented nothing but conjecture for review. This point of error is overruled.\\nPoint of error eighteen complains of counsel's failure to move to suppress the hair samples found on the gun due to conflicting testimony. The chemist testified that the victim's hair and the ham removed from the gun were consistent with one another. His lab report stated that it was his opinion the unknown hair (found on the gun) could originate from the victim, but did not possess a specific, significant number of unique characteristics to be positively identified. As with a number of appellant's points, he is only con-clusory, cites no authority and presents nothing for review. Brooks v. State, 642 S.W.2d 791, 797 (Tex.Crim.App.1982). It was the province of the jury to resolve the inconsistencies, if any. This point is overruled.\\nThe next point of error urges counsel was ineffective for failing to object to the jury findings of guilty on both counts of the indictment. This is but the final argument based upon the joinder of the two offenses in the single indictment and trial. Having found no error in the joinder under point of error two, nor ineffectiveness in this regard in point of error nine, we find no error under this point of error. It is overruled.\\nThe twentieth point of error asserts appellate counsel was ineffective for filing a frivolous brief. We strongly disagree. Appellate counsel's brief was in compliance with Anders and High. As reflected by our disposition of appellant's pro se points, the appeal was wholly without merit. Appellate counsel discussed nine areas, many of which were adopted by appellant, and concluded no error existed in any of these areas. He was and is correct. This point of error is overruled.\\nThe last point of error is a cumulative ineffectiveness of counsel point. We have carefully reviewed each of the points of error concerning ineffectiveness of counsel at trial and on appeal. We have reviewed counsel's performance throughout the record. He was prepared. He was an aggressive advocate for appellant. Under any standard, especially the \\\"totality of the circumstances\\\" standard, appellant's counsel did an admirable job in representing appellant both at trial and on appeal. Appellant received reasonably effective assistance of counsel.\\nAppellant, in his pro se capacity, has failed to show any error, much less reversible error. We affirm the judgment.\\nAFFIRMED.\\n. The State asserts this follows the 1984 wording of the \\\"Texas Prosecutor Council indictment manual [sic].\\\"\\n. The State asserts the charge generally tracked \\\"the 1990 Revised Edition of McClung's Jury Charges for Texas Criminal Practice.\\\"\\n. Simply because we discharged our duty and reviewed appellant's pro se points, this does not somehow give the appeal more merit than it deserves otherwise.\"}"
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+"{\"id\": \"10014347\", \"name\": \"Edward Troy SMITH, Appellant, v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Smith v. State\", \"decision_date\": \"1993-11-24\", \"docket_number\": \"No. 01-92-01063-CR\", \"first_page\": \"760\", \"last_page\": \"765\", \"citations\": \"866 S.W.2d 760\", \"volume\": \"866\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T21:59:39.148563+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before OLIVER-PARROTT, C.J., and O\\u2019CONNOR and WILSON, JJ.\", \"parties\": \"Edward Troy SMITH, Appellant, v. The STATE of Texas, Appellee.\", \"head_matter\": \"Edward Troy SMITH, Appellant, v. The STATE of Texas, Appellee.\\nNo. 01-92-01063-CR.\\nCourt of Appeals of Texas, Houston (1st Dist.).\\nNov. 24, 1993.\\nDiscretionary Review Refused March 16, 1994.\\nTerrence Gaiser, Houston, for appellant.\\nJohn B. Holmes, Jr., Ernest Davila, Michelle Stansbury, Houston, for appellee.\\nBefore OLIVER-PARROTT, C.J., and O\\u2019CONNOR and WILSON, JJ.\", \"word_count\": \"2063\", \"char_count\": \"13569\", \"text\": \"OPINION\\nWILSON, Justice.\\nAppellant, Edward Troy Smith, was charged by information with the offense of operating a sexually oriented business without a permit. The trial court overruled his motion to quash the information. Pursuant to a plea agreement, appellant pled guilty to the charged offense and true to an enhancement paragraph. The trial court sentenced appellant to 90-days confinement and assessed a $350 fine. We affirm.\\nFactual background\\nAppellant owned and operated the Long-point Emporium. At the hearing on appellant's motion to quash, Houston Police Department Officer Steven Andrews testified that in February 1992, as a member of the police department's vice division, he was investigating sexually oriented businesses. On February 18, 1992, he and Officer R.E. McFarland visited the Longpoint Emporium. Officer Andrews noticed that the store was divided into three areas. He described the front of the store as a \\\"straight\\\" (or non-sexually oriented) area, containing old newspapers, books, and magazines, as well as some leather goods, including underwear, masks, and straps \\\"used for bondage type things.\\\" The second area of the store contained videotapes and magazines, as well as \\\"gel, poppers and that type of thing\\\" in a display case. Officer Andrews counted 510 videotapes in the second area. The second area also contained the manager's station, which contained several VCR's. The VCR's were connected to a television set in the third area, described as a \\\"viewing area,\\\" in which customers could watch the video being played. Officer Andrews described the viewing area as an unsanitary room with sofas and chairs and \\\"various little cubbyholes.\\\" During the officers' visit, the clerk was showing a video in which a man and woman were engaged in anal intercourse.\\nBased on the covers of the magazines and videotapes in the second area, some of which depicted \\\"sexual intercourse, deviate sexual intercourse, anal intercourse and oral sodomy,\\\" Officer Andrews concluded that they contained sexually explicit material and that the store was a sexually oriented business. The store did not have a sexually oriented business permit attached to the front door. After the officers arrested the store manager, they found nine rubber dildos in an opaque trash bag underneath a counter.\\nSometime before February 1992, appellant had applied for a sexually oriented business permit for the store. In his application, appellant described his business as an adult video and book store. Officer Andrews testified that he investigated appellant's application, and that appellant's application was denied because the business was in a residential area and across the street from one church and 660 feet away from another.\\nEnabling legislation and municipal ordinance\\nThe legislature has found that \\\"the unrestricted operation of certain sexually oriented businesses may be detrimental to the public health, safety, and welfare by contributing to the decline of residential and business neighborhoods and the growth of criminal activity.\\\" Tex.Local Gov't Code Ann. \\u00a7 243.-001(a) (Vernon Supp.1993). The legislature has therefore authorized municipalities to adopt certain regulations regarding sexually oriented businesses. Tex.Local Gov't Code Ann. \\u00a7 243.003(a) (Vernon Supp.1993). The definition of \\\"sexually oriented business\\\" includes adult bookstores. Tex.Local Gov't Code Ann. \\u00a7 243.002 (Vernon Supp.1993). A municipality may restrict the location of a sexually oriented business to certain areas; such businesses may also be prohibited within a certain distance of, among other things, schools, churches, and residential neighborhoods. Tex.Local Gov't Code Ann. \\u00a7 243.-006(a)(1), (2) (Vernon Supp.1993). A municipality may require that the owner or operator of a sexually oriented business obtain a permit for the operation of the business. Tex.Local Gov't Code Ann. \\u00a7 243.007(a) (Vernon Supp.1993).\\nPursuant to these provisions of the Local Government Code, the city of Houston has promulgated an ordinance governing sexually oriented businesses. The ordinance requires anyone owning, operating, or conducting any business in an \\\"enterprise\\\" located within the city to have a permit for the enterprise, and to post the permit at or near the enterprise's entrance. Houston Municipal Ordinance \\u00a7 28.122(a), (b). The definition of \\\"enterprise\\\" includes \\\"adult bookstore,\\\" which is defined in the ordinance as follows:\\nAn establishment whose primary business is the offering to customers of books, magazines, films or videotapes (whether for viewing off-premises or on-premises by use of motion picture machines or other image-producing devices), periodicals, or other printed or pictorial materials which are intended to provide sexual stimulation or sexual gratification to such customers, and which are distinguished by or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities, or specified anatomical areas.\\nId at \\u00a7 28-121 (emphasis added). The ordinance defines \\\"specified sexual activities\\\" and \\\"specified anatomical areas.\\\" Id The ordinance further provides that the police department shall issue a permit unless, among other things, the enterprise is located within 750 feet of a church, or if 75 percent of the surrounding tracts within a prescribed area are residential in character. Id at \\u00a7 28-125(b)(1), (3).\\nAppellant's first amendment argument\\nIn one point of error, appellant asserts the trial court erred in denying his motion to quash because \\\"the application of the Houston city ordinance to the facts of this case prohibiting appellant from owning his bookstore and operating that business without a permit violates the appellant's right to equal protection of the law under the Fourteenth Amendment to the Constitution of the United States.\\\" Specifically, he argues that because the ordinance defines \\\"specified anatomical areas\\\" and \\\"specified sexual activities,\\\" it is impermissibly directed at the content of the materials sold. He further argues that because the ordinance applies only to enterprises whose primary business is selling sexually oriented material, it violates the first and fourteenth amendments \\\"by imposing a prior restraint and criminal sanctions to enforce a content-based restriction on the geographic location of adult bookstores that sell, lease or exhibit sexually explicit material,\\\" while exempting businesses that do not deal primarily in sexually explicit material.\\n1. Content\\nAppellant asserts that \\\"one need only look at the Ordinance's [definitions of \\\"specified anatomical areas\\\" and \\\"specified sexual activities\\\"] to see that it is the sexual content of the material offered to the public that is the target of the restrictions imposed.\\\" We think it is clear from the ordinance's title \\u2014 \\\"Sexually Oriented Businesses\\\" \\u2014 that the ordinance targets the content of the material. All written material is presumptively protected by the first amendment. Davis v. State, 658 S.W.2d 572, 577 (Tex.Crim.App.1983). However, an ordinance is not invalid merely because it subjects the commercial exploitation of materials protected by the first amendment to licensing or zoning requirements. Young v. American Mini Theatres, Inc., 427 U.S. 50, 62, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310 (1976); Jolar Cinema of Houston, Inc. v. City of Houston, 695 S.W.2d 353, 355 (Tex.App.\\u2014Houston [1st Dist.] 1985, no writ).\\nIn City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), the Supreme Court considered a zoning provision that prohibited sexually oriented businesses from locating near churches, residential areas, schools, and parks. 475 U.S. at 44,106 S.Ct. at 927. The Court held that the ordinance could be treated as content-neutral because its purpose was not to curb speech, but was, rather, to curb the secondary effects of certain businesses on the surrounding community. 475 U.S. at 47,106 S.Ct. at 928; SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1273 (5th Cir. 1988), cert. denied M.E.F. Enter., Inc. v. City of Houston, 489 U.S. 1052, 109 S.Ct. 1310, 103 L.Ed.2d 579 (1989). The constitutionality of such ordinances is tested by the time, place, and manner of their regulation. City of Renton, 475 U.S. at 47, 106 S.Ct. at 928; SDJ, Inc., 837 F.2d at 1273. These t\\u00edme, place and manner regulations are acceptable as long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication. City of Renton, 476 U.S. at 47, 106 S.Ct. at 928.\\nA \\\"city's interest in attempting to preserve the quality of urban life is one that must be accorded high respect.\\\" American Mini Theatres, Inc., 427 U.S. at 71, 96 S.Ct. at 2453. For this reason, ordinances similar to the one now before this Court have repeatedly been found to serve a substantial governmental interest. See SDJ, Inc., 837 F.2d at 1274-75 (holding that an earlier version of the ordinance now before this Court did not violate the first amendment); Lindsay v. Papageorgiou, 751 S.W.2d 544, 549 (Tex.App.\\u2014Houston [1st Dist.] 1988, writ denied) (upholding Harris County regulations regarding the location of sexually oriented enterprises); Rahmani v. State, 748 S.W.2d 618, 622-23 (Tex.App.\\u2014Houston [1st Dist.] 1988, pet. ref d) (upholding the city of Houston's ordinance regulating adult arcades); Jolar Cinema, 695 S.W.2d at 355 (upholding an earlier version of the ordinance currently before this Court). We find that this ordinance similarly serves a substantial governmental interest.\\nWe also find that the ordinance leaves open alternative channels of communication. The ordinance does not totally ban operation of all such enterprises, and does not limit the number of such enterprises. The ordinance merely places a limit on the locations where such expression may be expressed. Papageorgiou, 751 S.W.2d at 550.\\n2. Equal protection\\nAppellant asserts that the ordinance denies him equal protection because it requires the permitting of enterprises whose primary business is offering sexually oriented material, but exempts those businesses whose activities might incidentally include the offering of sexually oriented material. We disagree.\\nAs previously noted, the legislature has determined that the unrestricted operation of certain sexually oriented businesses may contribute to \\\"the decline of residential and business neighborhoods and the growth of criminal activity.\\\" Tex.LoCAL Gov't Code Ann. \\u00a7 243.001(a) (Vernon Supp.1993). Additionally, in 1982, before enacting regulations on sexually oriented businesses, the city of Houston conducted a study to determine the effects of such businesses within the city. The results of this study were described by the Fifth Circuit:\\nThe committee conducted public hearings, studied the regulations and experiences of other cities, and concluded that sexually oriented businesses can exert a dehumanizing influence on persons attending churches and schools, can contribute to an increase in criminal activity, can contribute to the impairment of character and quality of residential neighborhoods, and, when concentrated in one area, can contribute to a decline of surrounding property.\\nSDJ, Inc., 837 F.2d at 1272. It is clear from the city's findings that sexually oriented businesses generate undesirable secondary effects. The Fifth Circuit found that in drafting its ordinance regulating sexually oriented businesses, the city's predominant concern was with these secondary effects and not with the content of the expression itself. Id. at 1273.\\nIf a statutory scheme infringes upon fundamental rights or interests or burdens an inherently \\\"suspect\\\" class, the scheme is subject to strict scrutiny, and the statutory classification must promote a compelling state interest. If, however, the statutory scheme does not involve a fundamental right or a suspect class, then the appropriate standard of review is whether the classification is reasonable, not arbitrary, and bears a reasonable relationship to a legitimate state objective. Suber v. Ohio Medical Prod., Inc., 811 S.W.2d 646, 651 (Tex.App.\\u2014Houston [14th Dist.] 1991, writ denied); Jack v. Jack, 796 S.W.2d 543, 550 (Tex.App.\\u2014Dallas 1990, no writ). Suspect classes are those likely to reflect deep-seated prejudice rather than legislative rationality in pursuit of a legitimate objective. Suber, 811 S.W.2d at 651, Owners or operators of sexually oriented businesses do not constitute a suspect class.\\nWe note that sexually oriented materials are due less protection than other forms of expression. SDJ, Inc., 837 F.2d at 1274; see also American Mini Theatres, Inc., 427 U.S. at 70, 96 S.Ct. at 2452. However, we think that under either test articulated above, the ordinance in question withstands appellant's equal protection challenge. The city has a significant interest in the character and quality of its neighborhoods and the effect of sexually oriented businesses upon its populace. The ordinance currently before this Court is narrowly tailored to affect only those businesses that produce unwanted secondary effects.\\nWe overrule appellant's point of error, and affirm the judgment of the trial court.\"}"
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+"{\"id\": \"10017028\", \"name\": \"D. PRIEST and Van Zandt Commission Company, Inc., Appellants, v. TEXAS ANIMAL HEALTH COMMISSION, Appellee\", \"name_abbreviation\": \"Priest v. Texas Animal Health Commission\", \"decision_date\": \"1989-11-06\", \"docket_number\": \"No. 05-88-01417-CV\", \"first_page\": \"874\", \"last_page\": \"884\", \"citations\": \"780 S.W.2d 874\", \"volume\": \"780\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T00:16:18.477214+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before HOWELL, THOMAS and OVARD, JJ.\", \"parties\": \"D. PRIEST and Van Zandt Commission Company, Inc., Appellants, v. TEXAS ANIMAL HEALTH COMMISSION, Appellee.\", \"head_matter\": \"D. PRIEST and Van Zandt Commission Company, Inc., Appellants, v. TEXAS ANIMAL HEALTH COMMISSION, Appellee.\\nNo. 05-88-01417-CV.\\nCourt of Appeals of Texas, Dallas.\\nNov. 6, 1989.\\nMark J. Calabria, Rebecca L. Calabria, Kaufman, for appellants.\\nMolly D. Shannon, Austin, for appellee.\\nBefore HOWELL, THOMAS and OVARD, JJ.\", \"word_count\": \"6132\", \"char_count\": \"38307\", \"text\": \"OPINION\\nTHOMAS, Justice.\\nD. Priest and Van Zandt Commission Company (hereafter collectively \\\"Priest\\\") appeal from a permanent injunction entered by summary judgment, enjoining Priest from: 1) failing to maintain proper cattle ownership records for cattle sold through them; 2) refusing to allow Texas Animal Health Commission (hereafter \\\"Commission\\\") representatives to examine such records; and 3) failing to brand cattle exposed to brucellosis. In two points of error, Priest contends that the trial court erred in granting the Commission's motion for summary judgment because: 1) the summary judgment evidence did not entitle the Commission to judgment \\u00e1s a matter of law and did not establish that there were no genuine issues of material fact; and 2) the affidavits and attachments to the Commission's motion for summary judgment were inadequate as a matter of law to establish that no material issue of fact existed. We agree that the proof failed to establish that Priest failed to keep records as required by law. We conclude, however, that the other grounds for injunction were properly established. Thus, the trial court's judgment is affirmed in part and reversed and remanded in part.\\nSTANDARDS OF REVIEW\\nA. Permanent Injunction\\nA successful applicant for injunctive relief must demonstrate the following four grounds for relief: 1) the existence of a wrongful act; 2) the existence of imminent harm; 3) the existence of irreparable injury; and 4) the absence of an adequate remedy at law. Frey v. DeCordova Bend Estates Owners Ass'n, 632 S.W.2d 877, 881 (Tex.App.\\u2014Fort Worth 1982), aff'd, 647 S.W.2d 246 (Tex.1983).\\nThe grant or refusal of a permanent or temporary injunction is ordinarily within the sound discretion of the trial court and, on appeal, review of the trial court's action is limited to the question of whether the action constituted a clear abuse of discretion. Janus Films Inc. v. City of Fort Worth, 163 Tex. 616, 617, 358 S.W.2d 589, 589 (1962) (temporary injunction); Mejerle v. Brookhollow Office Products, 666 S.W.2d 192, 193 (Tex.App.\\u2014Dallas 1983, no writ) (temporary injunction); Electronic Data Sys. Corp. v. Powell, 508 S.W.2d 137, 139 (Tex.Civ.App.\\u2014Dallas 1974, no writ) (temporary injunction, but suggesting that abuse of discretion standard applies to all injunctions); Lee v. Bowles, 397 S.W.2d 923, 926 (Tex.Civ.App.\\u2014San Antonio 1965, no writ) (permanent injunction). Where the facts conclusively show a party is violating the substantive law it becomes the duty of the court to enjoin the violation and in such case there is no discretion to be exercised. City of Houston v. Memorial Bend Util. Co., 331 S.W.2d 418, 422 (Tex.Civ.App.\\u2014Houston 1960, writ ref'd n.r.e.).\\nAlthough a litigant has the right to a trial by jury in an injunction action, only ultimate issues of fact are submitted for jury determination. State v. Texas Pet Foods, Inc., 591 S.W.2d 800, 803 (Tex.1979). The jury does not determine the expediency, necessity or propriety of equitable relief. Id.; Alamo Title Co. v. San Antonio Bar Ass'n, 360 S.W.2d 814, 816 (Tex.Civ.App.\\u2014Waco 1962, writ ref d n.r.e.). As the supreme court has noted:\\nWe do not consider the question of likelihood of [defendant's] resumption or continuation of the acts enjoined as being an ultimate issue of fact for the jury.... A jury in equity, even under a blended system, does not decide the issue of expediency, necessity or propriety of equitable relief.... It was an element deducible from the circumstances for the court to consider in determining whether wrong or injury might be anticipated and whether chancery powers should be exercised. It constituted here, in effect, a mixed question of law and fact at most. Such questions are not for the jury in injunction cases.\\nTexas Pet Foods, 591 S.W.2d at 803, quoting Alamo Title Co., 360 S.W.2d at 816.\\nB. Summary Judgment\\nThe function of a summary judgment is not to deprive a litigant of his right to a full hearing on the merits of any real issue of fact, but to eliminate patently un-meritorious claims and untenable defenses. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). Under rule 166a of the Texas Rules of Civil Procedure, summary judgment may be rendered only if the pleadings, depositions, admissions, interrogatory answers, and affidavits show 1) that there is no genuine issue as to any material fact and 2) that the moving party is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c).\\nThe applicable standards for reviewing a summary judment may be summarized as follows:-\\n1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judment as a matter of law.\\n2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true.\\n3. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor.\\nNixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). With the standards of review for injunction and for summary judgment in mind, we turn to the summary judgment proof offered in support of Priest's violations of the Texas Agriculture Code.\\nFAILURE TO KEEP PROPER RECORDS\\nThe Texas Agriculture Code requires that each livestock auction commission merchant keep a record of transportation of livestock to and from the place of sale, including the name and address of the original owner and the purchaser of the livestock. TEX.AGRIC.CODE ANN. \\u00a7 147.042 (Vernon 1982). The statute provides that the commission merchant shall retain the records for at least one year after the date of sale. Id. \\u00a7 147.042(d).\\nThe Commission also points to section 147.041 of the Texas Agriculture Code and to rule 85.2(e) of the Texas Bovine Brucel-losis Regulations promulgated by the Commission pursuant to sections 161.046 and 163.061 of the Texas Agriculture Code, as requiring Priest to keep records of the names and addresses of sellers and purchasers of cattle. Section 147.041 requires Priest to keep records of all livestock sold. TEX.AGRIC.CODE ANN. \\u00a7 147.041(a). It does not explicitly state that Priest must keep records including the name and address of sellers and purchasers of livestock, although the statute requires him to file with the commissioners court a quarterly report containing this information. TEX.AGRIC.CODE ANN. \\u00a7 147.041(c). Because the statute does not specifically require Priest to keep the information the Commission contends he failed to keep, we conclude that violation of this provision will not support the injunction. Rule 35.2(e) provides that the market will supply certain information to the veterinarian making a market test of cattle, including the full name and address, including zip code, of the owner of the cattle at the time the cattle are delivered to the market. Again, although the rule certainly implies a requirement to keep records in order to supply the information to the veterinarian, there is no explicit requirement that Priest keep such records. The Commission has not alleged that Priest failed to give the required information to the veterinarian. Thus, violation of rule 35.2(e) will not support the injunction.\\nAs proof that Priest failed to keep records including the name and address of the original owner and the purchaser, the Commission attached to its motion for summary judgment Priest's answers to interrogatories, an affidavit of Wayne Rogers, a postmaster, and excerpts from the United States Government Manual pertaining to mail. The Commission served on Priest two sets of interrogatories. The sixty questions in the two sets each asked Priest to: \\\"Provide full name, address including county and telephone number for seller/original owner of [certain cattle identified by back tag number] sold through Van Zandt Commission Company, Inc. on [a certain date].\\\" The dates of sales were between January 4, 1986 and December 20, 1986. Priest's answers to the interrogatories were served on counsel on June 17, 1988. Priest's responses to a number of the interrogatories included name, address including route number and box number or street address, city and state, and zip code. Several interrogatory answers included a name and route number, city and state, but did not include a box number and zip code. Others included a name, city and state, or merely a name. In response to one interrogatory asking for the name and address of the seller/original owner of back tag #74 493 sold through Van Zandt Commission Company on November 22, 1986, Priest responded, \\\"Information not available.\\\" The affidavit of the postmaster and the excerpts from the Government Manual concerning the elements of a proper address were offered to show that the information provided by Priest did not, in many respects, constitute full names and addresses.\\nThe Commission's theory for summary judgment was that Priest's inability to produce names and addresses for his responses to the interrogatories was proof that, as a matter of law, Priest did not keep the records required by the Agriculture Code. The hypothesis is compelling, except for one failing. The Agriculture Code required Priest to retain records from sales for only one year. TEX.AGRIC.CODE ANN. \\u00a7 147.042(d). The fact that Priest could not produce information on June 17, 1988, concerning sales in 1986, constitutes no proof that Priest failed to keep the records of sale for one year as required by the Code. In fact, Priest stated in his affidavit that he has always maintained the proper records. Such statements of the nonmov-ant must be taken as true. Nixon, 690 S.W.2d at 548.\\nWe recognize that Priest did not raise this precise argument in his response to summary judgment, nor in his brief on appeal. We note, however, that this point concerns a deficiency of proof that Priest is entitled to raise without first complaining in his response to the motion for summary judgment. No response from the nonmov-ant is required when the movant's summary judgment proof is legally insufficient. Cove Investments, Inc. v. Manges, 602 S.W.2d 512, 514 (Tex.1980). Further, Priest's points of error aver generally that the trial court erred in granting the summary judgment because the Commission failed to prove its entitlement to such judgment. These points embrace all reasons for the failure of proof which rendered the granting of the summary judgment improper. Id. at 517. We hold that the summary judgment proof failed to establish the Commission's entitlement to summary judgment on the basis of a failure by Priest to maintain proper records. Without proof of unlawful conduct or proof of intent to commit such conduct, injunctive relief is improper. Frey, 632 S.W.2d at 881. We sustain that portion of point of error one contending that the Commission failed to establish its right to judgment on the ground of failure to keep proper records.\\nREFUSAL OF ACCESS TO RECORDS\\nSection 147.042 of the Texas Agriculture Code provides that the commission merchant shall prepare the transportation records referenced above and make them available for public inspection within twenty-four hours after receipt of the livestock and that these records are to be retained for at least one year after the date of sale. TEX.AGRIC.CODE ANN. \\u00a7 147.042. The Commission contended that Priest had refused to allow Commission representatives to examine these records. As proof, the Commission offered the affidavit of Richard Hanson, Animal Health Inspector. Hanson averred that on several occasions in the exercise of his official duties he had attempted to examine the records of the Van Zandt Commission Company and was told by Priest or his wife, who acted as bookkeeper for the company, that he would not be allowed to view any of the records unless he brought a search warrant. He lists several dates upon which he was refused access to the records, such dates being within one year of sales referenced in the interrogatories.\\nPriest argues that Hanson's affidavit will not support summary judgment because Hanson is an interested witness. Rule 166a of the Texas Rules of Civil Procedure provides that a summary judgment may be based on uncontroverted evidence of an interested witness if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. TEX.R.CIV.P. 166a(c); Republic Nat'l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex.1986). We conclude that the statements in Hanson's affidavit that on several listed dates he was refused access to records by Priest and his wife are clear, positive, direct and could have been readily controverted. Further, this evidence was not controverted by Priest. Thus, the summary judgment could be based upon Hanson's affidavit. Hanson clearly stated that he was not allowed to view records which the Agriculture Code required Priest to retain and make available for public inspection. We hold that this evidence established the Commission's entitlement to summary judgment on this ground as a matter of law.\\nFAILURE TO BRAND CATTLE EXPOSED TO BRUCELLOSIS\\nThe Texas Bovine Brucellosis Regulations require cattle infected with brucello-sis and cattle exposed to infected cattle to be appropriately branded. Cattle identified as being infected with brucellosis are branded on the left jaw with the letter \\\"B.\\\" Cattle from the same herd as any infected cattle are considered suspects, and are to be branded on the left jaw with the letter \\\"S.\\\" Tex. Animal Health Comm'n, 4 TEX. ADMIN. CODE \\u00a7 35.2(h) (West Oct. 15, 1988) (brucellosis). All exposed cattle are to be branded prior to moving, except that cattle on the premise of origin may be moved to a livestock market where they are to be indentified by \\\"S\\\" brand upon arrival. Id. \\u00a7 35.2(h)(2).\\nAs proof that Priest had moved suspect cattle without first \\\"S\\\" branding them, the Commission offered the affidavits of Rick Nabors, director of the State-Federal lab oratories in Texas, and veterinarian Edward L. Ptacek. In addition, Nabors's affidavit was accompanied by documents reflecting the results of brucellosis tests of cattle passing through the Van Zandt market. Nabors stated that he is a microbiologist and that the attached documents correctly reflect that brucellosis tests were conducted on blood samples received from a herd of cattle owned by the Malouf Ranch. The test results on two animals, identified by backtag numbers, were positive. Nabors averred further, \\\"Based on the card test, the veterinarian classified both animals as reactors [infected with bru-cellosis]. The State-Federal laboratory tests confirm his results.\\\" Edward Ptacek stated that he had been employed by the Commission as the director of Area 5; the area in which the Van Zandt Commission Company conducted business. On a certain date, he personally observed seventy-three head of cattle from the Malouf Ranch, which herd contained two brucello-sis-infected animals, being moved without proper \\\"S\\\" branding as required for the seventy-one exposed cattle.\\nPriest argues that Nabors's affidavit and attachments do not support the summary judgment because the affidavit contains hearsay, is not based upon personal knowledge, and fails to establish the admissibility of the attachment. Priest's hearsay complaint is directed to the statement that \\\"the veterinarian classified both animals as reactors.\\\" We agree that such statement is inadmissible hearsay, properly objected to in Priest's response to the motion for summary judgment, and should be disregarded. Priest further contends that this hearsay statement shows that Nabors's affidavit is not based on personal knowledge, but rather upon the statement of some unknown veterinarian. We disagree. The affidavit states that Nabors confirmed this statement from his own laboratory tests. Priest also argues that the documents attached to Nabors's affidavit are inadmissible because the documents are not directly referenced or identified in the affidavit, the affidavit does not reflect whether the attachments are true and correct copies of the originals, and the affidavit does not establish the admissibility of the documents.\\nPriest is mistaken in stating that the affidavit does not refer to the documents. The affidavit clearly states, \\\"The attached documents correctly reflect . \\\"; thus, the affidavit does directly reference the documents. Priest's argument that the affidavit fails to state that the copies are true and correct copies is more troublesome. Priest correctly states that such words are not used. Rule 166a states that attachments referred to in an affidavit shall be sworn or certified copies. TEX.R. CIV.P. 166a(e). Documents which are not sworn to or certified in any way do not constitute summary judgment proof. Lopez v. Hink, 757 S.W.2d 449, 450 (Tex.App.\\u2014Houston [14th Dist.] 1988, no writ).\\nThe supreme court has held, however, that copies of documents which are attached to a properly prepared affidavit are sworn copies within the meaning of rule 166a. Schindler, 717 S.W.2d at 607; Zarges v. Bevan, 652 S.W.2d 368, 369 (Tex.1983). An affidavit which avers that the documents are true and correct copies is considered a properly prepared affidavit. Schindler, 717 S.W.2d at 607. Schindler does not, however, limit a properly prepared affidavit to one containing these magic words. We hold that Nabors's statement that the documents accurately reflect the results of tests performed by the laboratory he supervises properly verified the documents.\\nPriest's last complaint directed to Nabors's affidavit and attached documents is that the affidavit fails to establish the admissibility of the attachments \\\"with respect to who made the document, when they were prepared or whether or not they were business records.\\\" Priest does not aid us with citation to authority; nevertheless, we discern that his complaint is that the documents were hearsay in that they were not shown to be admissible business records. Priest raises this complaint for the first time on appeal. Because he failed to raise this hearsay objection in his response to the motion for summary judgment, he has waived any complaint as to consideration of inadmissible evidence as part of the summary judgment record. Dolenz v. A.B., 742 S.W.2d 82, 83-84 n. 2 (Tex.App.\\u2014Dallas 1987, writ denied).\\nPriest attacks Ptacek's affidavit because the witness references \\\"the foregoing test records,\\\" an apparent reference to the documents attached to Nabors's affidavit, which preceded Ptacek's affidavit when presented to the court. Priest again complains that the documents were not properly sworn. We reiterate that Nabors's affidavit properly verified the exhibit. Priest further complains that the referenced document was not attached to Ptacek's affidavit. Rule 166a(e) provides that sworn copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. Priest does not contend that the documents attached to Na-bors's affidavit were not served together with Ptaeek's affidavit when the Commission's motion for summary judgment was served.\\nHaving determined what parts of the summary judgment proof may be considered, we turn now to the sufficiency of that proof. Nabors stated that two animals from the Malouf herd tested positive for brucellosis, and were therefore considered reactors. The test results show that the test was conducted at Priest's facility. Further, Ptacek stated that he personally observed, at the Van Zandt Commission Company, suspect cattle that were moved without first being branded \\\"S\\\".\\nWe conclude that the summary judgment proof showed that Priest had moved suspect cattle without first branding the cattle with the letter \\\"S\\\" as required by the Texas Bovine Brucellosis Regulations promulgated by the Commission. Thus, the Commission established its entitlement to summary judgment on this ground as a matter of law.\\nSUMMARY\\nWe hold that the trial court properly granted the summary judgment concluding that Priest had refused to allow Commission representatives to examine records and that Priest had allowed suspect cattle to be moved without first branding them as required by state regulations. We also conclude that the trial court did not abuse its discretion in entering the permanent injunction on these grounds. We further hold that the evidence failed to show that, as a matter of law, Priest failed to keep records as required by law. Thus, we conclude that the trial court abused its discretion in entering the injunction on this ground. We reverse the summary judgment on this ground and remand for further proceedings. In addition, the permanent injunction enjoining Priest from failing to maintain proper records is dissolved.\\nHOWELL, J., dissents.\"}"
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diff --git a/tex/10123109.json b/tex/10123109.json
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+"{\"id\": \"10123109\", \"name\": \"Dennis Leroy HIGNITE, Appellant, v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Hignite v. State\", \"decision_date\": \"1975-04-30\", \"docket_number\": \"No. 49861\", \"first_page\": \"210\", \"last_page\": \"214\", \"citations\": \"522 S.W.2d 210\", \"volume\": \"522\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T21:11:37.867418+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Dennis Leroy HIGNITE, Appellant, v. The STATE of Texas, Appellee.\", \"head_matter\": \"Dennis Leroy HIGNITE, Appellant, v. The STATE of Texas, Appellee.\\nNo. 49861.\\nCourt of Criminal Appeals of Texas.\\nApril 30, 1975.\\nJim G. Bray, Jr., Plano, for appellant.\\nTom O\\u2019Connell, Dist. Atty., Elliott Knott, Bill Jouette and Verla Sue Holland, Asst. Dist. Attys., McKinney, Jim D. Vollers, State\\u2019s Atty., and David S, McAngus, Asst. State\\u2019s Atty., Austin, for the State.\", \"word_count\": \"1969\", \"char_count\": \"11467\", \"text\": \"OPINION\\nONION, Presiding Judge.\\nThis is an appeal from a conviction under the former Penal Code for robbery by assault with a firearm, wherein the punishment was assessed by the jury at life imprisonment.\\nThe sole contention on appeal is that the court erred in failing to grant his motion for instructed verdict at the conclusion of the State's .case since the undisputed evidence showed that the alleged offense occurred in Dallas County, not in Collin County, as charged.\\nThe indictment alleged that the appellant had taken from John W. K. Simon \\\"a 1959 Chrysler automobile, the same being the property of the said John W. K. Simon, and with the intent then and there to deprive the said John W. K. Simon of the value of the same and to appropriate the same to the use of him, the said Dennis Leroy Hignite.\\\"\\nSimon testified that he lived in Richardson, and on the night of December 25, 1973, he had gone to a small youth church known as Shepherd's Bush. He left the church near midnight and was returning to his home in Richardson driving his Chrysler automobile north on North Central Expressway, Highway 75, when he saw two hitchhikers between the S.M.U. campus and North Park Shopping Center. He stopped to give them a ride when one of the hitchhikers, the appellant Hignite, opened the passenger side of the car and stuck a gun \\\"right in.\\\" Simon related he took his hands off the wheel and said, \\\"O. k., I'm scared.\\\" Appellant then ordered Simon away from the wheel and instructed his companion, Stephen Horner, to get in the driver's seat. Simon testified that the appellant noticed the broken gas gauge registered \\\"empty\\\" and instructed Horner \\\"to get off on Forest\\\" and go west on \\\"LBJ,\\\" where they found a Texaco service station and purchased gas using some mon ey taken from Simon's wallet and some of their own. All during this time appellant held a gun on Simon. They later returned to Highway 75 and continued in a northerly direction, stopping briefly in Plano, at which time Horner displayed a pistol to Simon. Another stop was made in the vicinity of McKinney, at which time Simon was asked if he wanted \\\"to die slow or fast.\\\" They returned to Highway 75 and drove just north of McKinney and again made an exit off the highway. Simon was ordered out of the car and to walk. As he started to walk \\\"back toward Dallas,\\\" the appellant shot him in the back and again in the leg after he was on the ground. A third shot missed. Appellant and his companion then fled in the Chrysler. The badly wounded Simon was able to make his way to a residence. Law enforcement officers were summoned and Simon gave a description of his car, its license number and a description of his assailants. They were spotted by a law enforcement officer in Collin County, and as they headed south on Highway 75 a roadblock was set up and appellant and Horner were apprehended and disarmed in Collin County.\\n\\\"The venue in a robbery prosecution must be proved as alleged in the indictment. To sustain the allegation, however, the state need only prove that, by reason of the facts, the county where the prosecution is carried on has jurisdiction.\\\" 50 Tex.Jur.2d Rev., Robbery, Sec. 41 (Venue), p. 201.\\nIt is well established that venue in a criminal case need not be proven beyond a reasonable doubt but only by a preponderance of the evidence. Article 13.17, Vernon's Ann.C.C.P. (as amended 1973); Esquivel v. State, 506 S.W.2d 613 (Tex.Cr.App.1974); Edwards v. State, 427 S.W.2d 629 (Tex.Cr.App.1968). Venue is sufficiently proven if from the evidence the offense was committed in the county alleged. Harden v. State, 417 S.W.2d 170 (Tex.Cr.App.1967); Edwards v. State, supra.\\nUpon the question of venue raised, appellant relies upon Article 13.18, Vernon's Ann.C.C.P., which provides:\\n\\\"If venue is not specifically stated, the proper county for the prosecution of offenses is that in which the offense was committed.\\\"\\nIn addition he cites Etzler v. State, 143 Tex.Cr.R. 327, 158 S.W.2d 495 (1942), and Busby v. State, 143 Tex.Cr.R. 72, 157 S.W.2d 394 (1942).\\nBusby involved a complaining witness who picked up two hitchhikers and, while traveling in Williamson County, Busby's companion produced a pistol and ordered the complaining witness to turn the car over to them. The witness got out from under the wheel, and the defendant then began to drive, and the two robbers turned around \\\"and came back to Travis County.\\\" It is not clear from the opinion where the complaining witness picked up the hitchhikers or whether he remained in the car after he got out from under the wheel. Nevertheless, the court held that in view of the witness' undisputed testimony that the offense occurred in Williamson County, venue was properly laid in that county.\\nIn Etzler the defendant, posing as a prospective buyer of a used car, asked the salesman in Tahoka, Lynn County, for a demonstration of a car and, after driving seven or eight blocks, pulled a pistol, ordered the salesman to get a suitcase under a bush and place't in the car. The salesman was commanded to reenter the car, and the appellant then drove to Lubbock in another county before releasing the salesman, telling him the car could be recovered the next morning in Big Spring. In Etzler the court held that the robbery took place in the county where the defendant took possession and control of the automobile, and not in the county where the defendant made the salesman get out of the car. The court in Etzler observed that if the appellant had abandoned the car before he was apprehended, then the issue of whether or not he intended to permanently appropriate it would have been raised, but he did not do so.\\nThe State urges that Etzler should be read as approving the fact that venue was properly laid in Lynn County, but not condemning the possible prosecution in Lubbock County.\\nThe State takes the position that the evidence is unclear as to in what county the complaining witness picked up the hitchhikers, but the evidence clearly shows that the complaining witness was forced out of the car and shot in Collin County, and thereafter the appellant fled in the car and then permanently appropriated the car to his own use and benefit, and he was subsequently apprehended in the car in Collin County.\\nWe do observe that Article 13.19, Vernon's Ann.C.C.P., provides that:\\n\\\"If an offense has been committed within the state and it cannot readily be determined within which county or counties the commission took place, trial may be held in the county in which the defendant resides, in the county in which he is apprehended, or in the county to which he is extradited.\\\"\\nThe State further urges that robbery is but an aggravated form of theft. Thomas v. State, 168 Tex.Cr.R. 225, 324 S.W.2d 869 (1959); Dickey v. State, 169 Tex.Cr.R. 576, 336 S.W.2d 165 (1960); Johnson v. State, 463 S.W.2d 736, 738 (Tex.Cr.App.1971). See and compare Shannon v. State, 170 Tex.Cr.R. 91, 338 S.W.2d 462 (1960). And felony theft and robbery by assault have long been held to be offenses of like character. Ex parte Romines, 419 S.W.2d 358 (Tex.Cr.App.1967); Cherry v. State, 447 S.W.2d 154, 158 (Tex.Cr.App.1969), and cases there cited.\\nArticle 13.08, Vernon's Ann.C.C.P., provides that:\\n\\\"Where property is stolen in one county and removed by the offender to another county, the offender may be prosecuted either in the county where he took the property or in any other county through or into which he may have removed the same.\\\"\\nIn Wallace v. State, 458 S.W.2d 67 (Tex.Cr.App.1970), this court on rehearing held that where the robbery was a continuing offense which lasted for hours, testimony of the owner of the vacant house in which the victim was found that the house was in the forum county, and by the sheriff that both the house and a gas station where the robbers and victim stopped for gas were in the forum county was sufficient to show the continuing offense was committed in the forum county and the venue was laid in that county.\\nIn the instant case, if it can be validly argued that it is not clear just where the offense commenced or was completed, then venue was properly laid under the provisions of Article 13.19, supra, since it is undisputed that the appellant was apprehended in Collin County. If, on the other hand, it can be argued that the evidence is sufficient to show that the offense commenced and was completed in Dallas County, venue was still properly laid in Collin County in view of the provisions of Article 13.08, Vernon's Ann.C.C.P. As we view the provisions of that statute, it is not limited to theft cases, but if the property is stolen by other unlawful means, such as robbery, the statute would have application and authorize venue in either Dallas County or Collin County where the property was removed. Still further, it appears that the robbery alleged (the taking of the Chrysler automobile) was a continuing offense over a period of time, and venue was properly laid in Collin County, where the complaining witness was finally forced from his car and shot, and where the appellant was apprehended. See Wallace v. State, supra.\\nEtzler and Busby appear to have been properly decided, but to the extent they infer venue could not have been properly laid in another county they are overruled to the extent of any conflict with this decision.\\nThe judgment is affirmed.\\n. An examination of the record reflects that the complaining witness picked up the defendant and his companion in Travis County while on his way home to Taylor and that after the twosome had taken possession of the car in Williamson County, they drove back to Travis County. The complaining witness remained in the car, but after reaching Travis County was forced from the car and his money was taken from him. He was tied and left, but soon untied himself and summoned law enforcement officers. The automobile was later recovered in Indiana.\\n. We note that in Smallwood v. State, 464 S.W.2d 846 (Tex.Cr.App.1971), the defendant's contention was exactly opposite that of the appellant in the instant case. The robbery indictment in Smallwood alleged the defendant took one automobile, one watch and $14.00 in money from the complaining witness in Dallas County. The evidence showed that the defendant forced his way into the complaining witness' car in Dallas County and ordered the witness to drive to the Central Expressway, where he took the witness' watch and money, as well as money from the witness' female companion. The defendant then drove into Ellis County, where be and his companion raped the female and then departed in the car. On appeal he contended that venue was not proved in Dallas County because the automobile was not finally taken until the parties were in Ellis County. In Smallwood the court, without reaching the question here involved, held that in a robbery all the property alleged taken need not be proven, and proof of the taking of a part is sufficient. The court concluded that evidence showing the taking of the watch and money was in Dallas County, and venue was properly laid. Etzler was not mentioned or cited.\"}"
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diff --git a/tex/10126295.json b/tex/10126295.json
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+"{\"id\": \"10126295\", \"name\": \"AERO SERVICES, INC., Appellant, v. AERO SERVICE CORPORATION, Appellee\", \"name_abbreviation\": \"Aero Services, Inc. v. Aero Service Corp.\", \"decision_date\": \"1976-06-09\", \"docket_number\": \"No. 1336\", \"first_page\": \"226\", \"last_page\": \"227\", \"citations\": \"538 S.W.2d 226\", \"volume\": \"538\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T22:15:02.535914+00:00\", \"provenance\": \"CAP\", \"judges\": \"COULSON, J., dissents.\", \"parties\": \"AERO SERVICES, INC., Appellant, v. AERO SERVICE CORPORATION, Appellee.\", \"head_matter\": \"AERO SERVICES, INC., Appellant, v. AERO SERVICE CORPORATION, Appellee.\\nNo. 1336.\\nCourt of Civil Appeals of Texas, Houston (14th Dist.).\\nJune 9, 1976.\\nJerry W. Bussell, Engel, Groom, Miglicco & Gibson, Houston, for appellant.\\nBen L. Reynolds, James Patrick Cooney, Royston, Rayzor, Vickery & Williams, Houston, for appellee.\", \"word_count\": \"602\", \"char_count\": \"3829\", \"text\": \"CIRE, Justice.\\nThis is an appeal from the granting of a temporary injunction. The suit was originally instituted by appellant Aero Services, Inc. seeking to enjoin appellees from conducting business in Texas under the names \\\"Aero Services\\\", \\\"Aero Service\\\", \\\"Aero Services Division\\\", or \\\"Aero Service Division\\\". Appellee answered by way of counterclaim that it is the owner of the service mark \\\"Aero Service\\\", registered in the United States Patent and Trademark Office, and of the trademark \\\"Aero\\\", registered with the Secretary of State of Texas, and has used the name \\\"Aero Service\\\" in Texas since the year 1940. Appellee sought to enjoin appellant from using the symbols \\\"Aero Service\\\" or \\\"Aero Services\\\" in Texas.\\nAfter separate hearings on each party's motion, the trial court granted the temporary injunction prayed for by appellee.\\nThe record reflects that appellee was originally incorporated in 1919 in Delaware as \\\"The Pennsylvania Aero-Service Corporation\\\", and changed its name in 1920 to \\\"Aero Service Corporation\\\". In November, 1961 Aero Service Corp. was acquired by Litton Industries, Inc. Under that agreement Litton acquired Aero's right to the use of the corporate name \\\"Aero\\\". In June, 1974 Aero Service Corp. was merged with Western Geophysical Co. of America, another subsidiary of Litton Industries. The company headquarters was moved to Houston, where it now conducts business under the name \\\"Aero Service\\\" or \\\"Aero Service Division\\\" of Western Geophysical Company. The company engages in the business of making aerial maps and surveys.\\nAppellant was issued a certificate of incorporation in Texas on August 1, 1961 under the corporate name \\\"Aero Services, Inc.\\\" and engages in the business of supplying repair parts for jet aircraft. The parties are not in competition with each other.\\nThe record reflects, and the trial court found, that appellee has used the name \\\"Aero Service\\\" in Texas since at least the early 1950's. Portions of the deposition of Harry Bradley, appellant's president, were introduced at the hearing in which Mr. Bradley testified that he had had knowledge, \\\"back in the '50's\\\" that appellee was operating in Texas under the name \\\"Aero Service\\\". It is also clear that appellant has used the name \\\"Aero Services, Inc.\\\" in Texas for approximately 14 years.\\nAppellee offered no proof at the injunction hearings of any harm which has resulted to appellee by virtue of appellant's use of its corporate name. Appellant offered evidence that there had been some confusion in mail and telephone service, but did not show any harm to appellant other than the resulting inconvenience.\\nIt is clear that appellant used its corporate name for approximately thirteen years before this suit was filed, and that appellee has used the name \\\"Aero Service\\\" for an even longer period. Both parties have built their businesses on the use of their respective names. We feel that appellant's \\\"actual, peaceable, and non-contested\\\" use of its corporate name for thirteen years could not equitably be interrupted now by a temporary injunction, especially on a showing of such little, if any, harm to either party. Burge v. Dallas Retail Merchants Association, 257 S.W.2d 733, 736-37 (Tex.Civ.App. \\u2014Dallas 1953, no writ); see Dallas Plumbing Co. v. Dallas County Plumbing Co., 253 S.W. 308 (Tex.Civ.App. \\u2014 Dallas 1923, no writ).\\nThe judgment of the trial court is reversed, and judgment is here rendered denying the temporary injunction.\\nReversed and rendered.\\nCOULSON, J., dissents.\"}"
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+"{\"id\": \"10142402\", \"name\": \"Ex parte Terry Martin COLLINS\", \"name_abbreviation\": \"Ex parte Collins\", \"decision_date\": \"1970-03-25\", \"docket_number\": \"No. 42839\", \"first_page\": \"454\", \"last_page\": \"454\", \"citations\": \"452 S.W.2d 454\", \"volume\": \"452\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T22:19:02.530596+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ex parte Terry Martin COLLINS.\", \"head_matter\": \"Ex parte Terry Martin COLLINS.\\nNo. 42839.\\nCourt of Criminal Appeals of Texas.\\nMarch 25, 1970.\\nNo attorney on appeal for appellant.\\nJim D. Vollers, State\\u2019s Atty., Austin, for the State.\", \"word_count\": \"221\", \"char_count\": \"1380\", \"text\": \"OPINION\\nDOUGLAS, Judge.\\nThis is an appeal from an order of the Honorable Jerry Woodard, Judge of the 34th Judicial District Court of El Paso County, in a habeas corpus proceeding remanding appellant to custody for extradition to the State of Louisiana.\\nThe Executive Warrant of the Honorable Preston Smith, Governor of Texas, regular on its face, was introduced making a prima facie case. The Warrant recited that appellant stood charged by affidavit made before a magistrate, with a warrant, before proper authorities with the crime of forgery of a check.\\nAppellant's counsel contends that extradition should not be granted where there is only an affidavit and no information or indictment. Article 51.13, Sec. 3, Vernon's Ann.C.C.P., provides for extradition when there is a copy of an affidavit before a magistrate with a copy of any warrant which is issued thereon. See Ex parte Preston, Tex.Cr.App., 434 S.W.2d 136, and Ex parte Krarup, Tex.Cr.App., 422 S.W.2d 173.\\nThe supporting papers which contained two affidavits before magistrates were introduced, and they support rather than defeat the prima facie case made by the introduction of the Governor's Warrant.\\nThe judgment is affirmed.\"}"
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diff --git a/tex/10142566.json b/tex/10142566.json
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+"{\"id\": \"10142566\", \"name\": \"SOUTHWESTERN LIFE INSURANCE COMPANY, Appellant, v. Ronald F. SCARBOROUGH, Administrator of the Estate of Frank A. Scarborough, Deceased, Appellee\", \"name_abbreviation\": \"Southwestern Life Insurance Co. v. Scarborough\", \"decision_date\": \"1975-11-06\", \"docket_number\": \"No. 7743\", \"first_page\": \"871\", \"last_page\": \"874\", \"citations\": \"530 S.W.2d 871\", \"volume\": \"530\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:01:39.555722+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SOUTHWESTERN LIFE INSURANCE COMPANY, Appellant, v. Ronald F. SCARBOROUGH, Administrator of the Estate of Frank A. Scarborough, Deceased, Appellee.\", \"head_matter\": \"SOUTHWESTERN LIFE INSURANCE COMPANY, Appellant, v. Ronald F. SCARBOROUGH, Administrator of the Estate of Frank A. Scarborough, Deceased, Appellee.\\nNo. 7743.\\nCourt of Civil Appeals of Texas, Beaumont.\\nNov. 6, 1975.\\nDewey Gonsoulin, Beaumont, for appellant.\\nK. M. Armstrong, Kountze, for appellee.\", \"word_count\": \"957\", \"char_count\": \"5810\", \"text\": \"KEITH, Justice.\\nThis is a venue appeal and we will designate the parties as they appeared in the trial court.\\nPlaintiff is the administrator of the Estate of Frank A. Scarborough, Deceased, by virtue of his appointment by the Probate Court of Jefferson County. The intestate was a lifetime resident of Jefferson County; he made application to the defendant for the policy now in issue while a resident of such county and it was delivered to him therein. He died in Jefferson County and his estate is in the probate court of that county.\\nThe policy provided that the death benefits would be paid to the beneficiary, designated in this case to be: \\\"To the Executors or Administrators of the Estate of the Proposed Insured.\\\"\\nPlaintiff, a resident of Hardin County, brought suit in his representative capacity in the District Court of Hardin County seeking to recover the death benefits provided in the policy, penalties, and attorney's fees. Defendant filed its plea of privilege to be sued in Dallas County, where it is domiciled. Plaintiff's controverting affidavit invoked only the provisions of Subdiv. 28, Art. 1995, Tex.Rev.Civ.Stat.Ann. (1964).\\nUnder this venue exception, suits may be brought against life insurance companies in the county where \\\"the policyhold er or beneficiary instituting such suit resides.\\\" (emphasis supplied) Under this exception, a plaintiff is not required to prove a cause of action. Darnell v. Southwestern American Ins. Co., 226 S.W.2d 239, 241 (Tex.Civ.App.\\u2014Dallas 1949, writ ref'd n. r. e.); American Sec. Life Ins. Co. v. M. D. Anderson H. & T. Inst., 408 S.W.2d 155, 158 (Tex.Civ.App.\\u2014Houston 1966, writ dism'd).\\nThe nature of plaintiff's suit was established by his petition which was before the trial court. Commercial Standard Insurance Company v. Caylor, 333 S.W.2d 161, 163 (Tex.Civ.App.\\u2014Austin 1960, no writ).\\nMoreover, defendant did not deny under oath any of the allegations of plaintiff's petition required to be denied under oath by Tex.R.Civ.P. 93; thus, the trial court properly admitted the policy into evidence.\\nUpon the hearing, plaintiff proved his residence in the county where the suit was instituted, his appointment as administrator of the insured's estate, and tendered the policy in evidence. Defendant thereupon offered in evidence an instrument bearing the same date as the application for the policy of insurance designated \\\"Assignment of Life Insurance Policy as Collateral\\\" whereby the insured assigned to a third party, inter alia: \\\"The sole right to collect from the Insurer in one sum the total net proceeds of the Policy payable by reason of the death of the Insured or the maturity of the Policy.\\\" However, the insured, or assignor, retained the right, inter alia, \\\"to designate and change the beneficiary\\\" named in the policy without prejudice to the rights of the assignee.\\nDefendant's proof showed that it had no record of any revocation of this assignment; and, we note in passing that the assignee was not a party to this proceeding.\\nDefendant argues that a beneficiary of a life insurance policy is the person designated by the terms of the contract as the one to receive the proceeds of the insurance, supporting the argument with citation to Bankers Protective Life Ins. Co. v. Mozingo, 127 S.W.2d 525 (Tex.Civ.App.\\u2014Dallas 1938, no writ). There is language in the cited case supporting defendant's argument; but, the context in which the statement appears does not make it applicable to the case at bar. As made plain by the abbreviated opinion, the holding was to the effect that a beneficiary of a policy was not a party to fraud in the procurement thereof so that her residence \\u2014 and not that of the insured \\u2014 determined venue in a suit for cancellation or rescission of the policy.\\nWe now have a statute covering the subject: Tex.Ins.Code Ann. Art. 3.01, \\u00a7 9 (1963), reading: \\\"The 'beneficiary' is the person to whom a policy of insurance effected is payable.\\\" Under the very terms of the policy in suit, it was payable to the executors or administrator of the insured; not to the assignee.\\nMoreover, as we have noted, the assignment which defendant offered in evidence recognized the distinction between a beneficiary and an assignee since the insured retained the right to change the beneficiary but subject to the rights of the as-signee. We conclude, therefore, that plaintiff was a \\\"beneficiary\\\" as that term is used in the cited provision of the insurance code and in Subdiv. 28 of the venue statute. Republic Bankers Life Ins. Co. v. Bunnell, 478 S.W.2d 800 (Tex.Civ.App.\\u2014Austin 1972, no writ).\\nDefendant's tender of the assignment was, essentially, a defensive plea which may properly be shown only upon the trial on the merits. The sole issue in the plea of privilege hearing is that of venue\\u2014 not liability upon the merits of the case. General Motors Acceptance Corporation v. Howard, 487 S.W.2d 708, 711 (Tex.1972).\\nDefendant's reliance upon McAllen State Bank v. Texas Bank & Trust Company, 433 S.W.2d 167 (Tex.1968), is misplaced. There, at the conclusion of a full trial upon the merits, the Court was considering the rights of a beneficiary and a pledgee to the proceeds of a life insurance policy. We do not find this case to be either controlling or persuasive.\\nFrom our review of the policy and the record as a whole, we are of the opinion that plaintiff properly invoked the jurisdiction of the court under the provisions of Subdiv. 28, Art. 1995, of the statutes, and the judgment of the trial court is\\nAffirmed.\"}"
\ No newline at end of file
diff --git a/tex/10143658.json b/tex/10143658.json
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+"{\"id\": \"10143658\", \"name\": \"Mildred Mitchell JONES et vir, Appellants, v. HUNT OIL COMPANY et al., Appellees\", \"name_abbreviation\": \"Jones v. Hunt Oil Co.\", \"decision_date\": \"1970-06-12\", \"docket_number\": \"No. 17450\", \"first_page\": \"506\", \"last_page\": \"514\", \"citations\": \"456 S.W.2d 506\", \"volume\": \"456\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T01:01:46.612512+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mildred Mitchell JONES et vir, Appellants, v. HUNT OIL COMPANY et al., Appellees.\", \"head_matter\": \"Mildred Mitchell JONES et vir, Appellants, v. HUNT OIL COMPANY et al., Appellees.\\nNo. 17450.\\nCourt of Civil Appeals of Texas, Dallas.\\nJune 12, 1970.\\nRehearing Denied July 10, 1970.\\nJohn A. Pace, Payne, Pace & Benners, Dallas, for appellants.\\nRalph B. Shank, Shank, Irwin, Conant & Williamson, Dallas, Frank L. McClendon, Ramey, Brelsford, Flock, Devereux & Hutchins, Tyler, for appellees.\", \"word_count\": \"4826\", \"char_count\": \"29187\", \"text\": \"CLAUDE WILLIAMS, Justice.\\nMildred Mitchell Jones, joined by her husband, Harry C. Jones, brought this action against Hunt Oil Company, Hunt Petroleum Corporation, Caroline Hunt Trust Estate, and its Trustees, Atlantic Richfield Company, Mobil Oil Corporation, and others, seeking to recover damages resulting from acts which were alleged to constitute wrongful conspiracy.\\nVenue having been held to be properly laid in Dallas County, certain of the defendants filed their motions for summary judgment, supported by numerous affidavits, admissions and exhibits. Plaintiffs filed a reply to the motion, verified by one of their attorneys. Following a hearing the trial court sustained the motion and thereafter rendered judgment decreeing that plaintiffs take nothing against the named defendants. Certain other defendants not parties to the motion were dismissed. From this judgment plaintiffs have perfected their appeal.\\nProper consideration and resolution of appellants' points of error require that we set forth the following essential and relevant antecedent facts which appear to be uncontroverted in this record.\\nAppellants were the owners in fee to a certain tract of land in Henderson County, Texas consisting of 20.55 acres. On August 16, 1951 appellant Mildred Mitchell Jones (then a single woman), as lessor, executed an oil, gas and mineral lease covering the land in question to S. S. Long, referred to in the record as the Long Lease. The primary term of this lease was ten years with an annual delay rental which was paid throughout the primary term of the lease. Long subsequently assigned the lease so that on July 12, 1961 title to the leasehold estate was vested in S. H. Kil-lingsworth, subject to certain overriding royalty interest. Subsequently Killings-worth assigned certain interests in the lease to Hunt Oil Company, Hunt Petroleum Corporation and Caroline Hunt Trust Estate. On July 12, 1961 Killingsworth, joined by Hunt Oil Company, Hunt Petroleum Corporation and other owners of leases in the immediate vicinity of the Long Lease, entered into a pooling agreement establishing a unit called the \\\"Hunt-West Poynor Unit\\\" for the purpose of drilling for and producing of oil and gas from the James Lime Formation. The entire pooling unit contained 170.86 acres, including the Long Lease. Thereafter the unit operators commenced drilling operations on land located in the Hunt-West Poynor Unit, but not on the Long Lease, and completed a producing oil well on or about August 16, 1961 which well has continued to produce oil in paying quantities. No well has been drilled on the lands actually described in the Long Lease.\\nOn November 14, 1961 Hunt Oil Company, Hunt Petroleum Corporation, S. H. Killingsworth and the remaining lessees of the leases in the Hunt-West Poynor Unit executed a written instrument designated as an amendment to the unit agreement so as to exclude from the boundaries of the unit approximately 10 acres of land, leaving within the unit approximately 160 acres.\\nOn February 27, 1962 Mildred Mitchell Jones and husband filed an action in the District Court of Henderson County against those named as appellees herein, but excluding Mobil, such suit being in the nature of an action for trespass to try title and in which they set forth the facts relating to the lease, the pooling arrangement, the amended designation of unit, and contended that the attempted pooling was invalid and not authorized under the terms of the lease so that the lease terminated on August 16, 1961 at the expiration of its primary term. Plaintiffs in that case prayed judgment that the lease be adjudicated as having been terminated and that the cloud cast by same be removed and for title and possession of said land. In that action plaintiffs did not seek or pray for the recovery of any damages by reason of the acts complained of in said suit nor were there any allegations concerning wrongful conspiracy. During the trial of the case in the district court plaintiffs, appellants here, stipulated in open court that if they prevailed in that suit and recovered the land in question they would ratify the Hunt-West Poynor Unit. Also it was stipulated that it was not the contention of plaintiffs that defendants (appellees here) acted in bad faith in pooling the lease; in drilling the well on the unit; in making application to drill the well; or in amending the description of the unit area. Judgment for defendants was rendered in the trial court and affirmed on appeal to the Court of Civil Appeals. However, on June 23, 1965 the Supreme Court of Texas reviewed the case and reversed the judgments of the lower courts. The Supreme Court held that appellants here were not bound by said unit agreement, that none of the unit production was effective to maintain the lease in force, that the lease terminated on August 16, 1961, the end of its primary term, and that appellants recover the land free of the Long Lease. The Supreme Court, in its opinion, specifically held that Killingsworth and the other unit owners in the unit acted in good faith in forming the unit, and securing a permit to drill and in drilling the well on the unit. The second motion for rehearing was denied by the Supreme Court on April 20, 1966. Jones et vir v. Killingsworth et al, 403 S.W.2d 325.\\nOn February 3, 1968 the present suit was filed in which the pooling arrangement, the amendment to the same, the application to the Railroad Commission for permit to drill a well on the unit, the drilling of the well and production of oil and gas therefrom, as well as numerous other ancillary acts constituted wrongful acts of civil conspiracy which resulted in damage to plaintiffs.\\nDefendants answered with specific denials and also affirmative defenses of limitation, res judicata, estoppel, ratification, and the absence of any facts which could legally constitute wrongful conspiracy resulting in damages.\\nOPINION\\nAs a basis for reversal of the summary judgment against them appellants assign six points of error.\\nThe first point of error is: \\\"The trial court erred in granting Appellees' Motion for Summary Judgment, because the record before the Court discloses that genuine FACT issues exist as to one or more disputed material facts. Para. 1.\\\"\\nIn the statement and argument under this point appellants say \\\"that an examination of Plaintiffs' First Amended Original Petition will show that Appellant alleges that the Appellees entered into a wrongful conspiracy in connection with the formation of the Hunt-West Poynor Unit in the Fairway Field in Henderson County, Texas; that Appellees in furtherance of the announced purpose of the formation of the unit, the drilling of the well and the production of oil and gas interfered with the Appellants' property rights and the enjoyment of her right of ownership.\\\" They further say: \\\"Acts of wrongful conspiracy and damages are specifically alleged in Plaintiffs' First Amended Petition Further, they allege: \\\"Therefore, all of the allegations of damages and conspiracy are in issue.\\\" Finally, in their conclusion, appellants say: \\\"The allegations of Plaintiffs' First Amended Petition in a Motion for Summary Judgment must be taken as true and were all denied by the Defendants who filed answers; that, under these circumstances, the court was in error in rendering Summary Judgment.\\\"\\nFrom these statements by appellants it is quite evident they are proceeding on the theory that the propriety of the action of the trial court in granting appellees' motion for summary judgment must be reviewed in the light of the sufficiency of appellants' pleadings alone. This position runs counter to the specific provisions of Rule 166-A, Vernon's Texas Rules of Civil Procedure, which was wisely designed to set it apart from other rules set up to test the sufficiency vel non of pleadings alone. In Arant v. Jaffe, 436 S.W.2d 169 (Tex.Civ.App., Dallas 1968), we had occasion to pass upon the identical question and there pointed out:\\n\\\"The summary judgment rule goes much further by permitting the parties to support their motions for summary judgment, as well as their opposition thereto, with affidavits, depositions, requests for admissions, and other 'summary judgment evidence.' It is this summary judgment evidence, and not the pleadings, that is looked to by the court to determine the existence or nonexistence of issuable facts. Moreover, it has been held that there is a duty on the part of a court to 'pierce the pleadings' in determining the question of the existence or nonexistence of issuable facts. Sparkman v. McWhirter, 263 S.W.2d 832 (Tex.Civ.App., Dallas 1953, writ ref'd).\\\"\\nOur Supreme Court has had occasion in numerous instances to reiterate the longstanding rule that pleadings alone do not form the basis for judicial determination of the propriety of the trial court's action on a motion for summary judgment. The court has held, many times, that in summary judgment proceedings when the moving party supports his motion with affidavits or other summary judgment evidence it then becomes incumbent upon the adverse party to come forward and file counter affidavits or other summary judgment evidence in opposition thereto and, failing to do so, suffer the consequences thereof. Gulf, C. & S. F. Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958); Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948 (1960); Allen v. Western Alliance Ins. Co., 162 Tex. 572, 349 S.W.2d 590 (1961).\\nIn Rothchild v. Fannin Bank, 407 S.W.2d 878 (Tex.Civ.App., Texarkana 1966, writ ref'd n. r. e.), the court reasserted the rule that a pleading even verified, was not sufficient to overcome a proper motion supported by appropriate summary judgment evidence. To the same effect see St. Clergy v. Northcutt, 448 S.W.2d 847 (Tex.Civ.App., Beaumont 1969, no writ).\\nIn Maxey v. Rodman, 444 S.W.2d 353 (Tex.Civ.App., El Paso 1969, writ ref'd n. r. e.), the court considered a similar summary judgment\\\" in a conspiracy action. The court said:\\n\\\"Admittedly, it is difficult to prove a conspiracy or a fraud under these facts. But allegations of fraud or conspiracy do not, in and of themselves, raise fact issues prohibiting the granting of a summary judgment. Martin v. Coastal States Gas Producing Company, 417 S.W.2d 91 (Tex.Civ.App., 1967, n. w. h.); Midwestern Development Co. v. Dunlap, 389 S.W.2d 112 (Tex.Civ.App., 1965, n. r. e.). In order that there be a conspiracy, it can generally be said that the evidence must establish (1) there is a combination of two or more persons, (2) there is an agreement or meeting of the minds among these persons, (3) on a common object, purpose or course of action, (4) knowledge of the object and purpose, (5) one or more overt acts, and (6) intent to participate therein. Schlumberger Well Sur. Corp. v. Nortex Oil & G. Corp., 435 S.W.2d 854 (Tex.Sup.1969).\\\"\\nHere we are faced with a summary judgment filed by appellees in proper form and supported by a host of exhibits, affidavits, admissions, and other forms of summary judgment evidence. Appellants did not counter the motion with like summary judgment evidence but, obviously proceeding on the theory of sufficiency of pleadings, relied upon an answer, though verified, by one of their attorneys. We have carefully reviewed this answer or reply and find that the same amounts to nothing more than repetitive assertions to those things pled in the first amended original petition. After repeating the operative facts set forth in the petition the attorney repeatedly states that such facts amount to a wrongful conspiracy. We are convinced that this verified reply does not legally meet the requirements of the rule as well as the opinions of our Supreme Court on the question.\\nWe agree with appellees that appellants' first point of error is too general and indefinite so that it does not comply with the briefing rules. Rule 418, T.R.C.P. Almost identically worded points were condemned by us as being too general in White v. Great American Reserve Ins. Co., 342 S.W.2d 793 (Tex.Civ.App., Dallas 1961) ; Little v. Employees Security Life Ins. Co., 343 S.W.2d 517 (Tex.Civ.App., Dallas 1961); Crutchfield v. Associates Investment Co., 376 S.W.2d 957 (Tex.Civ.App., Dallas 1964, writ ref'd); Ballard v. Associates Investment Co., 368 S.W.2d 232 (Tex.Civ.App., Dallas 1963); and Cotten v. Republic Nat. Bank, 395 S.W.2d 930 (Tex.Civ.App., Dallas 1965). In practically all of these decisions, applying the rule of liberal construction, we looked to the argument and authorities under the point to determine if we could ascertain the issues of fact claimed to have been presented. We have done so in this case but find nothing in the argument and authorities under Point 1 which would advise us of the specific issuable facts claimed by appellants to have been presented to the trial court on the hearing of the motion for summary judgment. Not finding the issues relied upon by appellants in their brief we turn to Paragraph 1 of appellants' amended motion for new trial, found in the transcript, and there we find enumerated nine alleged overt acts which appellants 'allege interfered with their property rights in the fee ownership of the land causing damages. While we entertain doubt that we are required to do so we have proceeded to carefully examine each of the alleged overt acts which are contended by appellants to constitute issuable facts on the question of wrongful conspiracy.\\nPrior to a consideration of the alleged overt acts we deem it appropriate to examine the law relating to civil conspiracy which has been definitely settled by our Supreme Court. In Schlumberger Well Sur. Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854 (Tex.Sup.1969), Chief Justice Calvert reviewed the guidelines of this phase of the law:\\n\\\"A civil conspiracy has been defined by this court as 'a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means.' Great Nat'l Life Ins. Co. v. Chapa, Tex., 377 S.W.2d 632, 635 (1964); State v. Standard Oil Co., 130 Tex. 313, 107 S.W.2d 550 (1937). But the gist of a civil conspiracy is the damage resulting from commission of a wrong which injures another, and not the conspiracy itself. Starling v. Hill, 121 S.W.2d 648 (Tex.Civ.App.-Waco 1938, no writ); Shelton v. Lock, 19 S.W.2d 124 (Tex.Civ.App.-Amarillo, 1929, writ dism.); 16 Am.Jur.2d 149, Conspiracy, \\u00a7 344.\\\"\\nWith these rules of law in mind we turn to the alleged acts claimed by appellants to constitute civil conspiracy, which are: (1) that defendants entered into the Hunt-West Poynor Unit agreement claiming a valid oil and gas lease to plaintiffs' land; (2) that defendants filed an application with the Railroad Commission for authority to drill a well upon land included in the unit but not upon the land included in the Long Lease; (3) that defendants entered into a joint operating agreement for the Hunt-West Poynor Unit designating Hunt Oil Company as operator and continued to operate the unit while claiming title to an oil and gas lease covering minerals under the plaintiffs' land; (4) defendants directed Mobil to enter upon and lay pipeline across plaintiffs' land; (5) defendants operated said Hunt-West Poynor Unit claiming title to an oil and gas lease on plaintiffs' land until final judgment of the Supreme Court which divested and removed their claim of title; (6) defendants claiming title to plaintiffs' land received from the Railroad Commission an allowable assuming title to 160 acres including plaintiffs' land; (7) defendant Mobil advised plaintiffs that it would withhold that part of the proceeds of sale of production of oil and gas from the Hunt-West Poynor Unit attributable to plaintiffs' land, but fraudulently and secretly made payment to other defendants; (8) defendants advised the plaintiffs they would not allow plaintiffs to obtain a permit to drill a well on plaintiffs' land; and (9) defendants, from August 1961 until April 20, 1966, produced oil from the Hunt-West Poynor Unit, claiming the title to that portion which defendants by their unit declaration, admitted was attributable to plaintiffs' land.\\nAn examination of the summary judgment evidence contained in this record convinces us that appellees have sustained their burden of demonstrating that they have established as a matter of law that there is no issue of fact on the question of conspiracy. As Chief Justice Calvert said in the recent case of Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970), in a summary judgment case:\\n\\\" the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of the plaintiff's claim or cause of action, but is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action.\\\"\\nThe record demonstrates that the unit agreement was entered into on July 12, 1961 before the expiration of the primary term of the Long Lease. The unit agreement was amended on November 14, 1961 so as to provide for unit area of 160 acres. The unit agreement, as amended, was the same Hunt-West Poynor Unit which appellants agreed in open court to ratify if they prevailed in the Jones v. Killingsworth litigation. This is the same unit agreement of which the Supreme Court in its opinion in Jones v. Killingsworth said that Killings-worth and the other unit owners acted in good faith in forming. Throughout the litigation of Jones v. Killingsworth it was appellants' position that the unit agreement did not bind them in any way in that they were not parties thereto. In their answer to the motion for summary judgment appellants state: in this suit the Plaintiffs [appellants here] do not contend that they are entitled to share in the production, or that their land was a part of the unit, or that the defendants [ap-pellees here] were under a duty to offer the Plaintiffs the opportunity to ratify \\\" Appellants in their sworn reply to appellees' motion for summary judgment state: \\\"Plaintiffs have not claimed and do not claim that they were entitled to share in any of the Hunt Oil Company production from the unit.\\\"\\nConcerning the application with the Railroad Commission for authority to drill a well upon the unit, it is undisputed that in Jones v. Killingsworth appellants stipulated, among other things, that they were not contending that Hunt Oil Company had acted in bad faith in applying to the Railroad Commission for permit to drill a well on the unit. The Supreme Court specifically held that the permit granted by the Railroad Commission was valid. As to the joint operating agreement to operate the unit well the record is undisputed that appellants in this suit do not contend that they are entitled to share in the production or that their land was a part of the operating unit.\\nConcerning the laying of a pipeline across plaintiffs' land, the record reveals that on June 27, 1966 appellants executed and delivered to Magnolia Pipeline Company a right-of-way and easement over, across and through appellants' land, reciting receipt of money \\\"for all damages to this date caused by laying, maintaining and operating a four inch pipe in the place and manner in which it has been laid through the lands\\\" of appellants. Moreover, appellants, on July 16, 1966, ratified the \\\"Fieldwide Unit.\\\" This unit agreement recites in part: \\\"The parties hereto, to the extent of their rights and interests, hereby grant to Working Interest Owners the right to use as much of the surface of the land within the Unit Area as may be reasonably necessary for Unit Operations; \\u215d \\u2021 \\u215c \\u00bb\\nConcerning the Railroad Commissions' order in issuing allowable to 160 acres, the substance of this alleged overt act is that since the unit acreage was less than 160 acres the unit allowable granted to appel-lees by the Railroad Commission was too large. The Supreme Court in Jones v. Kil-lingsworth held that there was no contractual relationship between appellants, and appellees whereby appellees could allocate any of the unit production to the Long Lease and maintain it in force. The Supreme Court expressly held: \\\"The orders of the Railroad Commission cannot compel pooling agreements that the parties themselves do not agree upon. The Railroad Commission has no power to determine property rights.\\\"\\nThe record is undisputed that Mobil was a purchaser of the unit oil. It was not a signatory to the Hunt West Poynor Unit agreement. It purchased the unit oil and its duty was to account to the true unit owners for their share in the unit oil purchase. Appellants have disclaimed any right to an accounting or for any loss of oil or gas owned by them from their lease.\\nAppellants claim that appellees told them that they would not allow appellants to obtain a permit to drill a well on appellants' land and that such is an issuable fact. Permits to drill wells in search of oil and gas are granted or denied by the Railroad Commission upon application. It is undisputed that appellants never made an application to the Railroad Commission for a permit to drill a well on their land during the period of January 1, 1961 to April 25, 1969. Title disputes do not prohibit the issuance of permits by the Railroad Commission. Magnolia Petroleum Co. v. Railroad Commission, 141 Tex. 96, 170 S.W.2d 189 (1943).\\nFrom this review of the record we find no evidence of a civil conspiracy as defined by the Supreme Court. The act of appellees in entering into the Hunt-West Poynor Unit agreement was neither for an unlawful purpose nor to accomplish a lawful purpose by unlawful means. There is no evidence that appellants were injured by such act. They specifically withheld any claim for injuries or damages when they filed Jones v. Killingsworth. Moreover, by appellants' own acts and conduct, by their stipulations, ratifications, and specific grants, they are barred from asserting damages.\\nAppellees' defense of ratification has been established in this record, as a matter of law. After the unit was created, and prior to the filing of Jones v. Killings-worth, appellants were offered an opportunity to ratify the unit agreement but they refused. Appellants continued to refuse to become bound to any unit established by appellees until they first sought to ratify same in May 1966. During the trial of Jones v. Killingsworth appellants stipulated in the record that if they prevailed in this suit to recover the land they agreed to ratify the unit. Throughout the entire litigation appellants' position was that their land was not bound by the unit and that they claimed no money damages for the use or taking of oil, gas and minerals from the unit. The Supreme Court upheld their position. Thereafter appellants ratified and confirmed the unit agreement and became active participants in the same. By doing so they became bound to the unit venture fully as if they had joined in the original execution. Such was held by the Supreme Court in Montgomery v. Rittersbacher, 424 S.W.2d 210 (Tex.Sup.1968), in which a non-participating royalty owner filed suit to participate in lease production unitized by reason of an entirety clause in the lease. The court said that Montgomery could not recover royalties from the date of the first production from the lease but could recover from the date of his ratification and said that by such ratification Montgomery was as much bound by the unauthorized terms of the lease as if he had joined in the original execution thereof. See also our opinion in Leopard v. Stanolind Oil & Gas Co., 220 S.W.2d 259 (Tex.Civ.App., Dallas 1949, writ ref'd n. r. e.).\\nConcerning appellants' claim that they suffered damages by Mobil not suspending payment of unit benefits allocated for accounting convenience to the Long Lease until the title suit had been finally concluded, we are of the opinion that appellants by their own acts and conduct have become estopped to assert such contention. Appellants took the position in Jones v. Killingsworth that they were not bound by the terms of the unit agreement and that their original lease had terminated. The Supreme Court held that they were not bound and that in the absence of a contractual relationship between appellants and appellees the unit production, regardless of how allocated, was not effective to maintain the Long Lease in force beyond its primary term. Said the Supreme Court: \\\"Absent express authority, a lessee has no power to pool interests in the estate retained by the lessor with those of other lessors.\\\" Thus not being bound to the unit it mattered not how appellees operated the unit or how the unit oil might be allocated for accounting purposes by Mobil.\\n\\\"One who has successfully taken and maintained, either by pleading, admission, or agreement, a particular position in a ju dicial proceeding is estopped by the judgment therein from taking an inconsistent position in subsequent proceedings, such as an appeal or a retrial of the case, or another suit involving the same subject matter.\\\" 34 Tex.Jur.2d, Judgments, \\u00a7 349, pp. 480-481.\\nHaving disclaimed any right to the unit or its production in Jones v. Killingsworth, appellants are in no position to now say that the disposition made of the overall proceeds from the sale of the production of the unit well resulted in their damage.\\nWe agree with appellees' counterpoint that appellants' action in failing to present their claim for damages in the prior suit of Jones v. Killingsworth effectively bars appellants' present suit for damages because in both suits the relief sought is based upon the same alleged operative facts. In the first case appellants sought the relief of possession, title and removal of cloud cast upon the Long Lease. In the present suit, based upon the same operative facts, appellants seek the relief of damages for alleged civil conspiracy. The relief of damages was available in the trespass to try title action. Rule 783, T.R.C.P. and Rule 805, T.R.C.P.\\nThe principle of law condemning splitting of causes of action is stated in 34 Tex.Jur.2d, Judgments, \\u00a7 516, p. 592, as follows: \\\"A party will not be permitted to split a single and indivisible claim or demand so as to make it a basis for successive suits, and if he attempts to do so, the judgment in the first case decided will bar prosecution of the others, \\\"\\nIn 1884 our Supreme Court, in Nichols v. Dibrell, 61 Tex. 539, said it was settled that the decision of a court of competent jurisdiction is conclusive, not only as to the subject matter determined, but as to every other matter which the parties might have litigated in the case and which they might have decided. The court said: \\\" the plea of res judicata, applies not only to points upon which the court was actually required to pronounce judgment, but to every point which properly belonged to the subject of litigation, and which the parties, by exercising reasonable diligence, might have brought forward at the time.\\\"\\nTo the same effect see: Freeman v. McAninch, 87 Tex. 132, 27 S.W. 97 (Tex.Sup.1894); Cole v. Wadsworth, 376 S.W.2d 13 (Tex.Civ.App., Tyler 1964, writ ref'd n. r. e.); and Ladd v. Ladd, 402 S.W.2d 940 (Tex.Civ.App., Amarillo 1966, writ ref'd n. r. e.).\\nAppellees specifically pled that appellants' cause of action was barred by the two year statute of limitations. Art. 5526, Vernon's Ann.Civ.St. of Texas. Ap-pellees contend that the summary judgment proof demonstrates that all of the material overt acts complained of by appellants were committed as far back as 1961 and were certainly known to appellants at the time they instituted their suit in Jones v. Killingsworth in February 1962. With such knowledge no suit for damages based on wrongful conspiracy was filed for more than six years. We agree with appellees that the statute of limitations has effectively barred appellants' cause of action. There is no merit in appellants' contention that the statute of limitations did not begin to run until the judgment of the Supreme Court in Jones v. Killingsworth decreeing title to the land. The trespass to try title judgment did not act to create a new liability or a cause of action. Such judgment merely confirmed that the Long Lease covering appellants' land terminated on August 16, 1961.\\nWe have carefully examined all of appellants' points of error and find all to be without merit so that they must be overruled.\\nJudgment of the trial court is affirmed.\\nThe exact nature of plaintiffs' action was judicially determined by the Court of Civil Appeals at Eastland in an appeal of the venue question presented. Hunt Oil Co. et al. v. Jones et vir, 436 S.W. 2d 186 (1968, writ dism'd).\"}"
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+"{\"id\": \"10160724\", \"name\": \"Theo J. KRIEGER, Appellant, v. SHEFFIELD, GARRETT & CARTER, a Partnership, Appellee\", \"name_abbreviation\": \"Krieger v. Sheffield\", \"decision_date\": \"1960-11-19\", \"docket_number\": \"No. 3791\", \"first_page\": \"564\", \"last_page\": \"566\", \"citations\": \"341 S.W.2d 564\", \"volume\": \"341\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T00:41:10.481476+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Theo J. KRIEGER, Appellant, v. SHEFFIELD, GARRETT & CARTER, a Partnership, Appellee.\", \"head_matter\": \"Theo J. KRIEGER, Appellant, v. SHEFFIELD, GARRETT & CARTER, a Partnership, Appellee.\\nNo. 3791.\\nCourt of Civil Appeals of Texas. Waco.\\nNov. 19, 1960.\\nRehearing Denied Dec. 1, 1960.\\nRobert L. Sonfield, Houston, for appellant.\\nElledge & Urban, Geo. P. Murrin, Vinson, Elkins, Weems & Searls, Houston, for appellee.\", \"word_count\": \"793\", \"char_count\": \"4847\", \"text\": \"WILSON, Justice.\\nAppellee filed applications for writs of garnishment, alleging recovery of an unsatisfied judgment in a divorce case. Ap-pellee's assignor was appointed auditor in the divorce case, judgment in which fixed the reasonable cost of the audit and taxed the amount as costs of suit against appellant. Appellee filed an independent suit against appellant for recovery of this amount which was dismissed without prejudice. Appellant intervened in the garnishment proceedings, after garnishees admitted indebtedness to appellant, challenging issuance of the writs. His pleas and motions were overruled and judgment in garnishment was rendered for appellee.\\nAppellant's basic position is that since appellee \\u2014 appointed auditor in the divorce case under Rule 172, Texas Rules of Civil Procedure \\u2014 was not a party to the judgment in the divorce proceedings, the writ of garnishment is not available to him under the provisions of Art. 4076, Vernon's Ann.Tex.Stats., because he does not have \\\"a valid, subsisting judgment\\\" required by subdivision three thereof.\\nRule 172 provides that the court appointing an auditor shall award reasonable compensation \\\"to such auditor\\\", to be taxed as costs of suit. This provision is not materially unlike those in such examples as Rule 173, dealing with the fee of a guardian ad litem; Rules 244 and 759, concerning attorney's fees; and Rule 171 relating to masters in chancery. The fee is allowed \\\"as compensation for services rendered\\\", although taxed as costs. Bruni v. Vidaurri, 140 Tex. 138, 166 S.W.2d 81, 96.\\nThis question is not free from doubt and has given us concern, but we are convinced appellant's contention must be sustained under this record. Ordinarily, processes to enforce collection of costs are available only in the names of parties \\\"and not in favor of officers in whose favor the costs have been adjudged.\\\" 15 Tex.Jur.2d Sec. 79, p. 94; 20 C.J.S. Costs \\u00a7 416, p. 654. The divorce judgment determined \\\"the reasonable cost of the audit\\\" and taxed it as costs of suit against appellant. The auditor is not designated as a party to the judgment, although his identity as the auditor appointed is shown by the judgment roll. The court had judicial knowledge of the existence and terms of the order appointing the auditor and the divorce judgment. King & King v. Porter, 113 Tex. 198, 252 S.W. 1022. This knowledge, however, does not make the auditor a \\\"party in whose favor the judgment was rendered.\\\" There is no award here \\\"to such auditor.\\\" To support a writ of garnishment the judgment in the main suit must be definite, final, and one upon which execution may issue. 20-B Tex. Jur., Sec. 42, p. 234. The clerk could not have properly issued an execution stating appellee's (or his assignor's) as the name of the party in whose favor the judgment was rendered as required by Rule 629. 18 Tex. Jur., Sec. 25, p. 559. No judgment was rendered in appellee's favor. This is not merely because the auditor was not named in the judgment. Had there been an award to the auditor, his identity might have been supplied. Laros v. Hartman, 152 Tex. 518, 260 S.W.2d 592, 594; Nicholson v. Mills, Tex.Civ.App., 227 S.W.2d 354, writ ref. He simply does not have a \\\"valid, subsisting judgment.\\\"\\nThe most liberal construction of the divorce judgment does not make the ancillary writ available to appellee, in our opinion, under Art. 4076, subd. 3. \\\"The remedy of garnishment is summary and harsh. [S]uch proceedings cannot be sustained unless they are in strict conformity with statutory requirements.\\\" Beggs v. Fite, 130 Tex. 46, 106 S.W.2d 1039, 1042. The record shows only a judgment for costs in favor of plaintiff in the divorce judgment against defendant. We do not reach, nor imply opinion on the academic question of whether the writ would have been available to appellee had the judgment made an award to the auditor as provided by Rule 172, rather than merely fixing the amount and taxing it as costs.\\nThe judgment in garnishment is reversed and here rendered that appellee take nothing, and that garnishees are discharged. That portion of the judgment dismissing appellant's cross-action, however, is reversed and to such extent the cause remanded for further proceedings not inconsistent herewith on appellant's cross-action. Costs on appeal and in the trial court are taxed against appellee. The clerk of the trial court is directed to deliver any sums paid into the registry of the court by garnishees, under the judgment, to the garnishees so paying such sums.\"}"
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+"{\"id\": \"10161902\", \"name\": \"FISHER CONSTRUCTION COMPANY et al., Appellants, v. Robert E. RIGGS et al., Appellees\", \"name_abbreviation\": \"Fisher Construction Co. v. Riggs\", \"decision_date\": \"1959-01-08\", \"docket_number\": \"No. 13334\", \"first_page\": \"200\", \"last_page\": \"211\", \"citations\": \"320 S.W.2d 200\", \"volume\": \"320\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T17:05:51.703582+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FISHER CONSTRUCTION COMPANY et al., Appellants, v. Robert E. RIGGS et al., Appellees.\", \"head_matter\": \"FISHER CONSTRUCTION COMPANY et al., Appellants, v. Robert E. RIGGS et al., Appellees.\\nNo. 13334.\\nCourt of Civil Appeals of Texas. Houston.\\nJan. 8, 1959.\\nRehearing Denied Jan. 29, 1959.\\nDyess, Dyess & Prewett, Arthur D. Dyess, Jr., Houston, for appellant B. B. Bettell' & Son, Inc.\\nMcGregor, Sewell & Junell, William L. Bowers, Jr., Houston, for appellant Fisher Const. Co.\\nStanley F. Swenson, Houston, for appel-lee Riggs.\\nCarey Williams, Houston, for intervenor I. C. T. Ins. Co.\", \"word_count\": \"6118\", \"char_count\": \"35838\", \"text\": \"WERLEIN, Justice.\\nAppellee, Robert E. Riggs, brought this suit for personal injuries sustained by him on August IS, 1955, when he hopped or jumped through a plate-glass window in an unfinished store space, a part of the Palm Center Shopping Center in the City of Houston, then in the process of construction. Appellant Fisher Construction Company, hereinafter referred to as Fisher, was the general contractor for the shopping center project consisting of some 42 stores covering approximately 6 acres of buildings. Appellant, B. B. Bettell and Son, Inc., hereinafter referred to as Bettell, was the painting contractor on the project, and appellee was a painter in the employ of Bettell. I. C. T. Insurance Company, carrier of workmen's compensation insurance on employees of Bettell, intervened. Fisher filed its third-party action against Bet-tell, basing such third-party action on an indemnity agreement entered into between them.\\nThe court entered judgment on the verdict of the jury in favor of appellee in the sum of $20,010, out of which $4,099.45 was decreed to the intervenor. It was further ordered and decreed that Fisher recover over against Bettell judgment for the sum of $850 attorney's fees and expenses incurred, plus such sums as Fisher may ultimately be required to pay appellee.\\nBettell's brief asserting 11 Points of error is adopted by Fisher with the exception of Points 10 and 11 relating to the indemnity agreement in answer to which Fisher has filed a separate brief.\\nWe shall first consider appellee's motion to dismiss this appeal or to require new cost and supersedeas bonds with two sureties. The supersedeas bond was executed by Bettell as principal and Fidelity & Deposit Company of Maryland as surety. The cost bond was executed by Fisher as principal and the Employers' Liability Assurance Corporation, Ltd., as surety.\\nArticles 7.01 and 7.02 of the Insurance Code of Texas, permitting private corporations to act as surety and requiring only one corporate surety, were repealed by act of the 55th Legislature, effective ninety days after May 23, 1957. In repealing such articles, the Legislature failed to enact any law in lieu thereof. Hence there is no statutory provision authorizing surety com- pa\\u00f1\\u00edes to execute bonds in judicial proceedings other than in prohate matters and certain proceedings not here pertinent, nor is there any statutory requirement that an appeal or supersedeas bond be executed by two sureties.\\nAppellants assert that appellee's motion to dismiss was not timely filed, under Rule 404, Texas Rules of Civil Procedure, since it was not filed within thirty days after filing of the transcript in this Court. We are of the opinion that appellee has waived the right to object to the sufficiency of the ap-. peal bond, but agree with the decision in Berry v. Curtis, 154 Tex.Civ.R. 579, 227 S.W.2d 396, no writ history, holding that Rule 404 does not apply to a supersedeas bond in view of the language of Rules 364 to 368. In any event, Rule 365 gives this Court the authority to review such bond and to require an additional bond upon a proper showing of insufficiency. See also Rule 430, T.R.C.P.\\nRule 354, T.R.C.P., covering cost bonds on appeal, provides that the appellant \\\"shall execute a bond to be approved, by the clerk.\\\" This rule also provides, \\\"Each surety on the bond shall give his post-office address.\\\" Appellee asserts that this last sentence implies the-necessity for more than one surety on the bond. Rule 354 does not so state, nor does the sentence quoted so imply. Whether there is one surety or more, each surety must give his postoffice address.\\nRule 364, T.R.C.P., relative to super-' sedeas bonds, provides only for \\\"a good and sufficient bond to be approved by the clerk,\\\" and does not specify the number of sureties.\\nThe Supreme Court, in Ex parte Wrather, 139 Tex. 47, 161 S.W.2d 774, 775, in which one of two personal sureties was financially able to pay the amount of the bond in the event of default, stated:\\n\\\"Rule 364 merely prescribes that an appellant must give 'a good and sufficient bond to be approved by the clerk.' Therefore, if one of the bondsmen was actually sufficient surety, and the clerk was willing to accept the bond, this made a 'good and sufficient bond,' and met the requirements of the rule.\\\"\\nFor a discussion of the history of various statutes and requirements with respect to bonds, .see Universal Automobile Ins. Co. v. Culberson, Tex.Civ.App., 51 S.W.2d 1071, 1072, no writ history, in which case the court stated:\\n\\\"The sole purpose of requiring an appeal or supersedeas bond must therefore necessarily be to furnish security to the appellee in addition to the personal responsibility of the appellant. Automobile Insurance Co. v. Teague (Tex.Com.App.), 32 S.W.(2d) 824, We therefore conclude that the, 'good and sufficient' supersedeas bond required by said article 2270 is one signed by a solvent surety or sureties ap-. proved by the clerk.\\\"\\nRule 364 supersedes'Article 2270.\\nSee also Pinkston v. Victoria Bank & Trust Company, Tex.Civ.App., 210 S.W.2d 612, 613, no writ history, where the court said:\\n\\\"When a district clerk is called upon to approve a bond as to its financial sufficiency he performs more than a ministerial duty, he is called upon to exercise discretion, his act becomes a quasi judicial one 'and his decision is conclusive in an administrative sense. Baker v. Denniston-Boykin Co., 245 Ala. 407, 17 So.2d 148.\\\"\\nAppellee does not contend that the sureties on the bonds in question are not au-, thorized to write bonds and do business in this State or that they.are not thoroughly solvent. Each'of the bonds appears to have been executed by the attorney-in-fact, respectively, of each surety. We are of the opinion that the bonds are sufficient and that it is not necessary for either bond to have been executed -by more than one surety. Appellee's motion is overruled.\\nAppellants' first two Points are that the trial court erred in overruling appellants' motion for an instructed verdict on the ground that appellee occupied the status of licensee on the premises at the time and place he received his injury, and that under the undisputed evidence there was no breach of any legal duty on the part of appellants with respect to appellee.\\nAppellee had been working on the Palm Center Shopping Center as a painter for Bettell approximately 10 days before the date of his injury. His first work had been spraying, and then on Saturday preceding the Monday when he was injured he had handled rollers and brushes in some of the stores where he had been painting. On the morning of the accident appellee had painted four or five rear doors to store spaces, having been assigned to such job. He testified that in painting the back door of the store space to be occupied by Napko, he observed that it had been painted on the inside also, and he therefore started through the building to see his foreman to find out whether he should paint the inside of the back doors of the other stores. He noticed the foreman passing in front of such store space. Failing to attract his attention, he undertook to overtake him. At such time appellee was about 20 or 30 feet from the front of the store space which was 40 feet in depth. He had paint on his hands and his clothes and for that reason undertook to step through what he thought was an open space to his right of the door, rather than use the door and get paint on it. He testified that he just sort of ran or walked fast and jumped over the bulkhead which was about one foot high. He never saw the plate-glass before he hit it and did not know it had been installed. There is no evidence indicating that the accident would have been avoided had appellee approached the glass more slowly.\\nAt such time a painter was painting inside the store space. Decorative wallpaper had already been hung but appellee testified he did not notice it. He was in a hurry to catch his foreman and get instructions as to his work. There were between 9 and 17 glaziers still working on the project and at least 12 painters. Some time prior to the accident, plate-glass had been installed in the front window of the Napko Paint Store space. When installed it was marked with large pieces of paper taped on with masking tape. Prior to the accident Fisher directed that such markings be removed and the plate-glass cleaned. Mr. Fisher, part owner of Fisher Construction Company, testified that the opening of .the Center was to be on September 1, 1955, and that a great deal of work remained to be done. He further testified that construction workers frequently use the openings where plate-glass windows are to be installed as an opening to pass through, and that one of the purposes of having tape and stickers on plate-glass is that it makes the glass easier to see so that it won't be broken by workmen carrying objects. At the time of the accident the plate-glass was unguarded, unmarked, highly polished and spotlessly clean.\\nMr. Fisher testified that he was sure the tenants were \\\"pushing us to get out of their way so they could complete their work in time for the opening.\\\" That morning the painting foreman had given his men a pep talk. He testified that if any of his men had questions concerning the work he would want them to hurry up and find out what it was they needed to have answered. Appellants' Exhibit No. 1, taken on August 26, 1955, indicates that 11 days after the accident there was still painting going on in front of the Napko store space.\\nThe testimony was undisputed that it was common practice for construction workers to use window openings as a means of ingress and egress to and from buildings in the course of construction. Appellee had used such openings at the Palm Center project before his injury.\\nRalph V. Barr, an experienced glazier, testified that he always marked newly installed windows for the purpose of keeping people from walking through them or throwing anything through them. Jesse Feagin, painting contractor, when asked why they put the tags or markings on the, windows, testified, \\\"The only thing I could see was to keep someone from running through it.\\\"\\nAppellee testified that in his experience he had never worked on a job where the plate-glass panels were completely cleaned up before other workmen had finished their jobs. McDaniels, a painter of 20 years' experience, stated that it was not customary for plate-glass windows to be cleaned up before painters have completed their work. Albert Atchison, a painter for 45 years, testified that it was not customary for windows on jobs such as those in question to be cleaned up and have markings removed before the painters leave the job. Painting contractor Jesse Feagin testified that in shopping center work window cleaners are the last craft on the job. It is undisputed that there were no guard rails, signs, posters, or warnings of any kind indicating the presence of plate-glass in the windows.\\nWe do not agree with appellants' contention that since appellee had been assigned to paint the back doors of store spaces he had no business inside the store space to be occupied by Napko Paint Company. The fact that he was assigned to paint back doors or the outside of back doors would not tie him down to just that particular spot and prevent him from entering a store space, the back door of which he was painting, and through which he was taking a short cut to contact his foreman, and especially at a time when painting was going on in such unfinished store space and a painter and, according to some testimony, also a painter foreman, were therein. We think that appellee was a business invitee and not a mere licensee at the time of his injury.\\nUnquestionably a person may be an invitee as to certain parts of the premises but not as to others. See Burton Construction & Shipbuilding Co. v. Broussard, 154 Tex. 50, 273 S.W.2d 598. In that case, as also in the cases of Jameyson v. Farmers Gin Cooperative Association, Tex.Civ.App., 278 S.W.2d 169, no writ history; Cowart v. Meeks, 131 Tex. 36, 111 S.W.2d 1105; Texas Pacific Coal & Oil Co. v. Bridges, Tex.Civ.App., 110 S.W.2d 1248, writ dism.; and other cases cited by appellants, the injured party had gone or wandered to a part of the premises to which his invitation did not in any way expressly or impliedly extend. The cases relied upon by appellants are distinguishable from the present case in that in such cases the defendant could not reasonably have anticipated, in the exercise of ordinary care, that the injured party would have gone on the premises at the place where the injury occurred or used the premises for the purpose used at the time of injury. The case of McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391, relied upon by appellants, is also clearly distinguishable in that in such case the plaintiff testified to his knowledge of the slick condition of the floor upon which he was working and fully appreciated the danger of working on such floor as he was doing.\\nIn the present case, Fisher might reasonably have anticipated, in the exercise of ordinary care, that appellee or some workman similarly situated would pass through the vacant store space on business of his employer, and that in doing so he might undertake to use what appeared to be an open window space or panel for egress, as was customarily done. It was not necessary that appellant should have anticipated the exact nature of appellee's injury or the precise manner of its infliction. It is sufficient that it might reasonably have anticipated consequences or an injury of the general nature of that which ensued. Texaco Country Club v. Wade, Tex.Civ.App., 163 S.W.2d 219, no writ history; Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352, and authorities cited.\\n. It is well settled that the duty owed by a general contractor, such as Fisher, to the employee of a subcontractor is similar to the duty owed by a landowner to business guests or invitees. The standard by which this duty is measured is that of reasonable care. McKee General Contractor v. Patterson, supra; Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853. The line of demarcation between a business invitee and a licensee is sometimes difficult to draw. In the instant case we think that appellee did not exceed the scope of his implied invitation in undertaking to go through the unfinished store space still in process of construction under the existing circumstances. If we assume, however, that he became a licensee upon entering the vacant store space, Fisher was under a duty not to injure him by its active negligence. Houston Belt & Terminal Ry. Co. v. O'Leary, Tex.Civ.App., 136 S.W. 601, writ denied. Moreover, the duty devolves upon an owner to exercise reasonable care to safeguard a licensee from a new or hidden danger or peril that might exist or result from a changed condition. Texas-Louisiana Power Company v. Webster, 127 Tex. 126, 91 S.W.2d 302.\\nIn the present case, Fisher knew that it was usual and customary for windows to be taped and marked when installed in order to make them easier to see, and also knew that it was customary and usual for workmen to use the open spaces where such windows were to be installed for ingress and egress. Notwithstanding such knowledge, Fisher authorized and directed the removal of the markings from the plate-glass and had it highly polished and spotlessly cleaned so that it could not be seen from inside the store space. This was done at a time when appellant knew that the work was going on and the construction was not completed, and at a time when Fisher might reasonably have anticipated that some workman, in the belief that the glass had not been placed therein, might step or hop or push some object through or against such window and be injured by shattered glass. Thus, appellant changed the existing condition from one that threatened no harm to one that became a hidden danger and a menace to workmen on the job, without taking any precautions whatever to protect such workmen against the hazard of encountering an invisible barrier of glass presenting the appearance of an open space.\\nWith the knowledge it had, Fisher was in an entirely different position from that of appellee who was not aware that the glass had been installed and the markers removed. We think, therefore, that under these circumstances fact issues were raised and Fisher was charged with the duty of permitting the markings and stickers to remain on the glass until the other work had been completed or placing some temporary markings thereon or in front thereof or giving some other warning of the presence of the plate-glass. Appellants' First and Second Points present a close question, but we have concluded they must be overruled:\\nAppellants' Third to Seventh Points, inclusive, briefed together, assert that the trial court erred in overruling appellants' motion for an instructed verdict because the conditions alleged to constitute negligence were open and obvious to ap-pellee, and he was guilty of contributory negligence under the undisputed evidence and is precluded from recovery under the principle of volenti non fit injuria, and' further because appellee failed to offer any evidence of negligence on the part of appellant constituting a proximate cause of his injuries, and the findings and answers of the jury to Special Issues Nos. 1, 3 and 11 were not supported by any evidence and the findings and answers to Special Issues Nos. 2, 4, 5, 7 and 9 were contrary to the overwhelming weight and preponderance of the evidence, and also because appellant could not have reasonably anticipated the occurrence in question.\\nAppellants contend that appellee knew that the window was designed for plate-glass which would rest on the masonry bulkhead approximately one foot high, and saw the framework of the glass door, although he did not see the vertical metal strip and thought there was only one solid sheet of glass when he went through same. He did not see the decorative wallpaper in place, although he admitted that he knew such paper is not hung until the building area involved is closed in.\\nWe think the testimony amply supports appellee's contention that he could not see the glass until he had gone through it, and that it was not an Open and obvious condition. At the time there were no light reflections or sunshine that possibly would have made the plate-glass visible. The glazier who installed the glass and who went inside the store space immediately after the injury, testified that you could tell the glass that was broken and could see the edges of it, but where it was not broken you could not see it. He further testified you could not tell whether it was there or not. Appellee's foreman O'Con-nor, who also entered the store space shortly after the accident, testified \\\"I could -easily see how this could happen as we could not see that there was any glass in those windows, I could hardly tell there was glass in the one that Riggs went through except that there was some ragged edges around the frame. I mean that I could not tell that there was glass in them or not.\\\"\\nTrue, appellee knew that the door had been installed, but the doors and windows were not always contemporaneously installed or glazed. Had he seen the upright aluminum bar, which he testified he did not notice, he still would not have been warned that there was any glass that had been placed in the opening because the glass frequently was not installed until days after such bars were put in place. It is not difficult to see why appellee, undertaking to -overtake his foreman, did not look up or notice the wallpaper that had been installed. His attention was directed to the task at hand. He would normally rely upon his experience that the last craft on the job were the window cleaners and that the windows would not be cleaned while the painting in the store space was being done.\\nThe cases of Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374, and Fergeson v. National Bank of Commerce, Tex.Civ.App., 174 S.W.2d 1015, no writ history, relied on by appellant, involved injuries to business invitees resulting from slipping on stairs with which they were familiar, the conditions complained of being as open and obvious to them, as to the owners. Appellant also relies upon A. C. Burton Co. v. Stasny, Tex.Civ.App., 223 S.W.2d 310, writ refused. In that case the plaintiff, a customer, walked in through the grillwork doors. He saw the plate-glass window adjacent to the grillwork doors and knew that it was a window. In leaving the premises he first looked up and he saw the same doors through which he had entered, and then he dropped his head when about 20 feet from the doors and continued to walk with his head down, never looking up until he crashed through the window. In the instant case there is no evidence that appellee had ever passed through the door or had ever been in front on the outside of this particular store space where he might have seen the glass. The Stasny case and also Acme Laundry Company v. Ford, Tex.Civ.App., 284 S.W.2d 745, writ ref., n. r. e., in which latter case a customer went into a laundry and in walking out stepped through a glass panel which he thought was a doorway, are clearly distinguishable from' the present case. In each of those cases the injured party knew of the presence of the plate-glass into which he walked, and the defendant was an established, open and operating business. In Marshall v. San Jacinto Building, Inc., Tex.Civ.App., 67 S.W.2d 372, writ ref., the plaintiff tripped over a cement slab approximately \\u00be inch in elevation. Plaintiff had been in the same building, and had entered at the same entrance on many occasions, and the slab was open and obvious. In the instant case the plate-glass, under the lighting and atmospheric conditions there existing with no sunshine or light reflections, was not visible and hence not an open and obvious condition.\\nWe do not think that the doctrine of volenti non fit injuria has any application in the instant case. There is nothing to show that appellee ever noticed or that he could possibly have seen the window glass through which he jumped or hopped. In Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60, 64, our Supreme Court through Justice Calvert stated:\\n\\\"A plaintiff's right to recover cannot be defeated on the theory that he assumed the risk of injury under the doctrine of volenti non fit injuria unless it appears that with full knowledge of the nature and extent of the danger involved he put himself in the way of the particular risk involved as the result of an intelligent choice. Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172.\\\"\\nWe cannot agree with appellant that ap-pellee was guilty of contributory negligence as a matter of law and that the findings of the jury are not supported by any evidence or that they are against the great weight and preponderance of the evidence. The fundamental principle of appellate review is that the record must be viewed in the light most favorably in support of the judgment of the trial court and the jury verdict. Whether plaintiff has exercised due care is ordinarily a question of fact for the jury. See Tidy Didy Wash v. Barnett, Tex.Civ.App., 246 S.W.2d 303, writ ref., n. r. e. This Court, in considering the sufficiency of the evidence, must disregard all evidence adverse to the findings of the jury and consider only th\\u00e9 evidence favorable to such findings, indulging every legitimate conclusion which tends to uphold the same. Chesshir v. Nall, Tex.Civ.App., 218 S.W.2d 248, writ ref., n. r. e. See also Najera v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365. In Texas & Pac. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332, 334, the court held that the failure to look for an oncoming train at the proper moment was not contributory negligence as a matter of law. The court stated:\\n\\\"But the legal test is, not what the traveler could have done had he used his senses, but what an ordinarily prudent person would have done under the particular circumstances. Hence the courts have held that the failure to look and listen before going upon a railway track is not, as a matter of law, contributory negligence.\\\"\\nTo Issues submitted, the jury found that the act of Fisher in having the markings removed from the plate-glass windows of the Napko Paint Store, when they were so removed, constituted negligence, and also that its failure to place a guard-rail or markings on or by the plate-glass windows in question after being cleaned, was negligence, and that each of such grounds of negligence was a proximate cause of the accident in question. The jury further found that appellee's act of jumping over the bulkhead rather than stepping over it was not negligence, and that he did not fail to keep such a lookout ahead in the direction he was going as would have been kept by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances, and that his failure to use the door in going out of the store was not negligence. The jury also found that the plate-glass front on the Napko store was not an open and obvious condition to one situated as was the plaintiff inside the store at the time and place in question, exercising ordinary care, and that the occurrence in question was not an unavoidable accident.\\nWe have carefully reviewed the statement of facts and authorities, and have concluded that the court did not err in overruling appellants' amended motion for new trial and in refusing to instruct a verdict, and that the jury's findings are supported by ample evidence, and that the same are not against the great weight and preponderance of the evidence.\\nAppellants' Eighth Point presents the proposition that the court erred in admitting in evidence testimony showing or tending to show that subsequent to the accident in question, Fisher placed paper tape marking's back on the plate-glass windows, over the objection that such evidence was not admissible and was prejudicial and inflammatory.\\nMr. Fisher was asked whether the windows in question could not \\\"have been washed the following day when it was absolutely certain that all the painting was through in that building.\\\" He answered:\\n\\\"If we had been building only a Napko 25-foot wide store, we might have cleaned the windows somewhat later. But since Napko was one space of a very large project, it was impossible to have sufficient manpower to perform the window washing operation at the very last minute and still be able to finish the entire work.\\\"\\nHe also testified:\\n\\\"Not from convenience or ecomomy, because we wouldn't have paid any more to wash them. But it' was the physical impossibility to leave all of the window cleaning to be done on the last day.\\\"\\nIt then devolved upon appellee to show that it would not have been physically impossible or impractical to have cleaned the windows if the cleaning and removal of the stickers or tape had been left till after the painting had been finished and the store space completed. The testimony was not introduced as an admission by Fisher that it was negligent, but in rebuttal of the testimony of Mr. Fisher. It could have been limited to such purpose. Appellants, however, did not request that the testimony be limited.\\nThe applicable rule and exceptions thereto are set out in Vol. 2, McCormick and Ray, Texas Law of Evidence, Sec. 1151, page 42. See also St. Louis, A. & T. Ry. Co. v. Johnston, 78 Tex. 536, 15 S.W. 104; Texas-Midland Ry. Co. v. Truss, Tex.Civ.App., 186 S.W. 249, writ ref.; Houston Lighting and Power Co. v. Taber, Tex.Civ.App., 221 S.W.2d 339, writ ref., n. r. e.; St. Louis & S. F. Ry. Co. v. George, 85 Tex. 150, 19 S.W. 1036; Fordyce v. Moore, Tex.Civ.App., 22 S.W. 235, no writ history.\\nIn Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99, 105, the Court said:\\n\\\"The rule [against admission of evidence of subsequent precautions to prove negligence] is largely one of policy and good sense to avoid discouraging safety measures, but is inapplicable where the evidence would be valid as to other issues which also exist in the case.\\\"\\nFurther, it is the duty of the party objecting to the introduction of evidence which is.admissible for one purpose but not for another, to request the court to limit the purpose for which it might be considered, and failing to do so, he may not be heard to complain that the jury may have considered the evidence for other purposes. 17 Tex.Jur. 361, 362, Evidence, Civil Cases, Sec. 122, and cases cited.\\nAppellants' Ninth Point of Error is to the effect that the court erred in sustaining appellee's objection to the testimony of Mr. Fisher, in substance that he could see the plate-glass in other stores from within such stores after it had been cleaned, and also erred in sustaining ap-pellee's motion to strike such testimony because it was admissible to show appellant was not aware of any hazard existing at the time and place of appellee's injury, and also to show that prior to appellee's injury the windows in the shopping center were being washed and cleaned and that appellee in the exercise of his normal _senses should have known of such fact.\\nMr. Fisher testified that he did not recall being in the store in question. There is nothing to show that appellee knew anything about the windows in other stores of the project or the cleaning and polishing thereof. True, it was shown by appellants that the glass in windows of the vari ous stores was substantially the same size and shape and had been washed in the same manner. There is no testimony, however, as to the presence or absence of similar fixtures or painting or obj ects within the store or that the conditions of the store in question and other stores with respect to possible reflections and shadows and outside structures were the same or that weather conditions were substantially the same. In Panhandle & S. F. Ry. Co. v. Haywood, Tex.Civ.App., 227 S.W. 347, 351, error ref., the plaintiff sued for damages for the death of a child struck by a train. There was testimony that tests had been made by several different persons as to the distance a child might be seen on the track at the place in question. The testimony was admitted. The court stated:\\n\\\"The decision of the preliminary question as to whether the conditions are so substantially similar as to authorize the introduction of the evidence is necessarily for the trial court and he has considerable latitude of discretion in deciding it.\\\"\\nIn the instant case there are numerous facts which may have resulted in dissimilar conditions existing at the time of the accident in question and the time when Mr. Fisher made his observations of other store windows, and also dissimilar conditions with respect to the stores that might have affected visibility of the plate-glass. Under the circumstances, we do not think that the court erred in striking such testimony. See Long v. Galveston Electric Co., Tex.Civ.App., 59 S.W.2d 228, error dism.; Bonner v. Mercantile National Bank of Dallas, Tex.Civ.App., 203 S.W.2d 780, ref., n. r. e.\\nThe case of Team v. Texas & Pacific Ry. Co., Tex.Civ.App., 199 S.W.2d 274, ref., n. r. e., is readily distinguishable in that two engines practically identical in their construction and operation are so similar that testimony concerning the operation of one would necessarily have an evidential bearing upon the operation of the other.\\nBy its Points 10 and 11 Bettell contends that the Court erred in holding that the indemnity agreement between Fisher and Bettell requires Bettell to reimburse Fisher for all sums paid to satisfy the judgment in favor of appellee, contending that appellee's cause of action did not grow out of the work to be performed by Bettell under the sub-contract, and also that such indemnity agreement does not require Bettell to pay attorney's fees incurred by Fisher.\\nThe applicable clause in the sub-contract is as follows:\\n\\\"XVIII. Sub-Contractor shall protect, indemnify and save the Contractor harmless against any and all claims, demands and causes of action of every kind and character arising in favor of any person, including both Contractor's and Sub-Contractor's employees, on account of personal injuries or death, or damages to property occurring, growing out of, incident to, or resulting directly or indirectly from, the work to be performed by Sub-Contractor hereunder, whether such loss, damage, injury or liability arises from or is contributed to by the negligence of the Contractor or his employees, and whether due to imperfections of any material furnished by the Contractor, or the premises themselves or any equipment thereon, whether latent or patent, or for other causes whatsoever; and for damages for infringement of any patent growing out of or incident to SubContractor's performance of said work or the use of material or equipment furnished by the Sub-Contractor.\\\"\\nWe think the indemnity agreement is broad enough to include not only reimbursement of any amounts that Fisher is required to pay under the judgment, but also reasonable attorney's fees and expenses which were stipulated to be in the sum of $850. Bettell undertook to protect and indemnify Fisher against causes of action of every kind and character growing out of, incident to, or resulting directly or indirectly from the work to he performed by such sub-contractor. Appellee's cause of action unquestionably grew out of and is incident to work that was to be performed by Bet-tell. At the time of the accident appellee, was undertaking to obtain instructions ' in furtherance of Bettell's work.\\nThis case is distinguishable from Employer's Casualty Co. v. Howard P. Foley Co., 5 Cir., 1955, 158 F.2d 363, relied upon by Bettell. In that case the indemnity clause was not as broad as in the present case and at the time of the injury the employee was doing nothing in performance of his employer's contract.\\nThe rule of strict construction of indemnity contracts relied upon by Bet-ted applies only after the intention of the parties has been determined by applying the same rules of construction as are applied to other contracts. Mitchell's, Inc. v. Friedman, Tex.Sup., 303 S.W.2d 775. Unless the indemnity agreement in question covers reasonable attorney's fees and expenses of defending the cause of action, Fisher would not be fully protected, indemnified and saved harmless. The expenses of litigating a claim indemnified against may be recovered whether the right of indemnity is implied by law or arises by implication. See Sigmond Rothschild Co. v. Moore, 166 S.W.2d 744, writ ref,, w. m., in which the court quoted from 27 Amer. Jur., p. 474, the following:\\n\\\"Reasonable counsel fees which have been incurred in resisting the claim indemnified against may be recovered as a part of the damages and expenses when an action is brought to recover indemnity either upon a right of indemnity implied by law or arising under a contract.\\\"\\nSee also Price v. Steves, Tex.Civ.App., 175 S.W.2d 450, writ ref., w. m. The case of Rublee v. Stevenson, Tex.Civ.App., 161 S.W.2d 528, cited by Bettell, is clearly distinguishable.\\nBettell's Points of Error are overruled and the judgment of the trial court is affirmed.\"}"
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+"{\"id\": \"10162611\", \"name\": \"Laura F. NEALY et al., Appellants, v. FIDELITY UNION LIFE INSURANCE COMPANY, Appellee\", \"name_abbreviation\": \"Nealy v. Fidelity Union Life Insurance Co.\", \"decision_date\": \"1964-02-28\", \"docket_number\": \"No. 16314\", \"first_page\": \"401\", \"last_page\": \"406\", \"citations\": \"376 S.W.2d 401\", \"volume\": \"376\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:52:24.396351+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Laura F. NEALY et al., Appellants, v. FIDELITY UNION LIFE INSURANCE COMPANY, Appellee.\", \"head_matter\": \"Laura F. NEALY et al., Appellants, v. FIDELITY UNION LIFE INSURANCE COMPANY, Appellee.\\nNo. 16314.\\nCourt of Civil Appeals of Texas. Dallas.\\nFeb. 28, 1964.\\nLocke, Purnell, Boren, Laney & Neely and John D. Crawford, Dallas, for appellants.\\nJackson, Walker, Winstead, Cantwell & Miller, L. P. Bickel and Gerald W. Benson, Dallas, for appellee.\", \"word_count\": \"3082\", \"char_count\": \"17840\", \"text\": \"WILLIAMS, Justice.\\nWrongful death action. Article 4671 et seq., Vernon's Ann.Civ.St., and Art. 16, \\u00a7 26, Vernon's Annotated Constitution of the State of Texas. On May 5th, 1961 Willie Fred Nealy was shot and killed by Earl S. Swinney, an armed guard, in the lobby of the Fidelity Union Life Insurance Company Building in the City of Dallas, Texas. This action was instituted by the surviving wife and minor children of the deceased, seeking actual and exemplary damages against both Fidelity Union Life Insurance Company and Earl S. Swinney, who was alleged to have been acting within the course and scope of his employment for such company. The defendant Swinney, though duly served, filed no answer but appeared in person and participated in the trial of the case. The trial was before a jury and at the conclusion of the evidence the court submitted the case on special issues. In response to these issues the jury found (1) that the action of Swinney in shooting the deceased, Nealy, was not wrongful; (2) that the action of Swinney in shooting Nealy did not grow out of the performance by Swinney of his duties as an employee of the defendant Fidelity Union Life Insurance Company; (3) that the defendant Fidelity Union Life Insurance Company failed to properly train Swinney as an armed guard; (4) that such failure was negligence; (5) that such negligence was a proximate cause of the death of Nealy; (6) that at the time the defendant Fidelity Union Life Insurance Company hired Swinney he was not an unfit person for the duties entrusted to him as an armed guard; (9) that the act of Swinney in shooting Nealy was performed as a resentment of insult, or the furtherance of personal animosity of Swinney towards Nealy; (10) that the actual damages sustained by the widow as a result of the death of her husband was $1,500; (.11) that the minor children sustained actual damages in the sum of $6,300 as a result of the death of their father; and (12) no exemplary damages should be paid by the defendant Fidelity Union Life Insurance Company.\\nThe trial court, upon motion of the defendant Fidelity Union Life Insurance Company set aside and disregarded the answers of the jury to Special Issues 3, 4, and 5, noted above, and rendered judgment that plaintiffs take nothing against either of the defendants. From this judgment plaintiffs appeal, assigning twelve points of error. We find no reversible error reflected in this record and therefore affirm the judgment of the trial court.\\nBy their first point of error appellants complain of the action of the trial court in refusing to grant them judgment against the defendant Swinney who, though being duly served, failed to file an answer. Rule 240, Texas Rules of Civil Procedure provides that where there are several defendants, some of whom have answered or have not been duly served and some of whom have been duly served and have made default, an interlocutory judgment by default may be entered against those who have made default, and the cause may proceed or be postponed as to the others. Appellants did not request the court to award to them an interlocutory default judgment against the non-answering defendant Swinney, but proceeded to trial in the ordinary fashion. The record reveals that Swinney appeared in person and participated in the trial of the lawsuit, though not represented by an attorney. He was called by appellants to testify as an adverse party. Appellants' failure to demand an interlocutory default judgment against Swinney was acknowledged by appellants' attorney during the trial of the case. The case was submitted to the jury on issues relating both to Swinney and to the corporate defendant. The judgment recites that though Swinney was duly served, he did not file an answer, but did appear in person, though not represented by counsel. Under the peculiar circumstances evident in this record we are of the opinion that appellants waived their right to demand a default judgment against Swinney.\\nIn 33 Tex.Jur.2d, \\u00a7 126, Page 647, the rule is announced:\\n\\\"By proceeding to trial without taking advantage of the defendant's failure to answer the plaintiff waives his right to a default judgment.\\\"\\nOur court had occasion to review the authorities on this question in Foster v. L. M. S. Development Co., Tex.Civ.App., 346 S.W.2d 387, wherein Chief Justice Dixon, speaking for this court, said:\\n\\\"Smith in person appeared, participated in the trial as a party, and gave his testimony. Even if no written answer of any kind had been filed in his behalf, appellants under the circumstances have waived their right to take advantage of his failure to file a written answer. Shaw v. Whitfield, Tev.Civ.App., 35 S.W.2d 1115; Guaranty State Bank v. Brill, Tex.Civ.App., 268 S.W. 260, 265; W. T. Rawleigh Medical Co. v. Mayberry, Tex.Civ.App., 193 S.W. 199; Rules 67 and 90, Texas Rules of Civil Procedure; 25 Tex.Jur. 393 and 401.\\\"\\nHaving proceeded to trial without requesting an interlocutory default judgment, appellants impliedly consented to the procedure followed by the trial court, both in the introduction of evidence and the submission of issues to the jury, and hence any right to a default judgment was waived.\\nBy their second and third points appellants contend that even though the jury found that the shooting of Nealy by Swin-ney was not wrongful and that Swinney was not acting in the course of his employment for the corporate defendant at the time he shot Nealy, the court should have awarded appellants judgment against appellee, Fidelity Union Life Insurance Company, based upon the jury's finding in response to Special Issues Nos. 3, 4, and 5 to the effect that such corporate defendant was negligent in failing to properly train its armed guard, Swinney, and that such negligence was a proximate cause of Nealy's death. They argue that the court was not justified in setting aside and disregarding the jury's answers to Issues 3, 4 and 5 in that even though the servant may be excused from liability the corporate master may be legally held liable for its failure to perform a non-delegable duty. Kirby Lumber Co. v. Chambers, 41 Tex.Civ.App. 632, 95 S.W. 607; Fleming v. Texas Loan Agency, 87 Tex. 238, 27 S.W. 126, 26 L.R.A. 250; American Express Co. v. Parcarello, Tex.Civ.App., 162 S.W. 926; Fletcher v. Baltimore & Potomac R.R. Co., 168 U.S. 135, 18 S.Ct. 35, 42 L.Ed. 411, and Restatement of the Law of Torts and Negligence, Vol. 2, \\u00a7 317 and 392.\\nThe record contains testimony to the effect that at the time Swinney was employed by the Fidelity Union Life Insurance Company he was not given any special training as an armed guard. Even so we are of the opinion that the action of the trial court in setting aside and disregarding Issues 3, 4 and 5 was proper and that appellants' contention must be overruled for several reasons. First, we agree with ap-pellee that Special Issues 3, 4 and 5 are immaterial under the facts of this record and the answers of the jury to such issues cannot support a judgment for appellants. The controlling issue, No. 3, inquired as to whether \\\"defendant failed to properly train Earl Swinney as an armed guard.\\\" The testimony reveals that Swinney had been employed by the insurance company for eight years prior to the date of the shooting. The inquiry, therefore, concerned some failure on the part of the company to do something many years prior to the incident made the basis of this litigation. Moreover, the issue inquired as to Swinney's training as an armed guard and it necessarily follows that the act complained of by appellants against Swinney would have to flow from his act as \\\"an armed guard.\\\" The jury found that Swinney was not acting as an armed guard at the time he killed Nealy. The jury further found that Swinney was not acting wrongfully when he killed Nealy. Therefore, it is obvious that the jury finding concerning some failure on the part of the corporation to train Swinney as an armed guard becomes wholly immaterial inasmuch as the alleged wrongful act did not flow from any action on the part of Swinney while performing the duties as an armed guard. There is no evidence in this record \\u2022of any other act committed by Swinney which would convey notice to the employer as to his alleged inefficiency as an armed guard. This fact added to the immateriality of the issues complained of, as reflected in the case cited by appellants, Fletcher v. Baltimore & Potomac R.R. Co., 168 U.S. 135, 18 S.Ct. 35, 42 L.Ed. 411, wherein the United States Supreme Court said:\\n\\\" negligence on the part of the company in failing to prevent the act could not probably be shown by proof of a single act of that kind, even though damage resulted, where there was nothing to show the company had any reason to suppose the act would be \\u2022committed. Negligence on the part of the company is the basis of its liability, \\u2022and the mere failure to prevent a single .and dangerous act, as above stated, would not prove its existence.\\\"\\nSee also Walton v. New York Central Sleeping Car Co., 139 Mass. 556, 2 N.E. 101, and Kelly v. Louisiana Oil Refining Co., 167 Tenn. 101, 66 S.W.2d 997. Such issues being immaterial to the ultimate liability of the corporate defendant, the trial court was justified in disregarding same. Whittenburg v. Miller, 139 Tex. 586, 164 S.W.2d 497; 41-B Tex.Jur., \\u00a7 589.\\nAnother obvious reason why the trial court's action was correct is that even if it could be argued that Issues 3, 4 and 5 were material yet there is no evidence in this record to support the answer of the jury to Special Issue No. 5 to the effect that the failure to properly train Swinney as an armed guard was a proximate cause of Nealy's death. Even if it could be said that appellee owed a duty to properly train Swinney as an armed guard and that its failure to do so was negligence, yet such negligence could not, as a matter of law, be a proximate cause of Nealy's death unless the consequence of the negligence was reasonably foreseeable by the appellee. In Davidson v. Methodist Hospital of Dallas, Tex.Civ.App., 348 S.W.2d 400, we had occasion to review the case and to reiterate the rule that a party is only responsible for a consequence which is probable according to ordinary and usual experience. See also 17 Tex.Jur.2d \\u00a7 14, \\\"Death by Wrongful Act\\\"; Hill v. Sabine Pipe & Supply Co., Tex.Civ.App., 272 S.W.2d 769. Moreover, it appears affirmatively in this case that a new and independent cause, in the form of Nealy's act and conduct, which will be hereinafter more fully discussed, intervened to destroy the causal connection between any negligence on the part of the employer and the ultimate act resulting in Nealy's death. For a review of the authorities dealing with this point see our opinion in Compton v. American Airlines, Inc., Tex.Civ.App., 348 S.W.2d 427; 40 Tex.Jur.2d, \\\"Negligence\\\", \\u00a7 27 and 28.\\nInasmuch as appellants' remaining points, 5 through 12 inclusive, are \\\"no evidence\\\" or \\\"insufficient evidence\\\" points assailing the jury's answers to Issues 1, 2 and 9, thereby requiring us to give careful consideration to the testimony as a whole, we deem it desirable to set forth the essential portions of such testimony dealing with these issues.\\nWillie Fred Nealy, prior to May 5, 1961, was an employee of the Fidelity Union Life Insurance Company as a porter. He had drawn his pay check just prior to the shooting on May 5, 1961 and there is evidence that he was no longer an employee at that time. Earl S. Swinney was an employee of Fidelity Union Life Insurance Company as an armed guard, having held that position for eight years prior to May 5, 1961, and on the night of that date he was stationed in the lobby of the Fidelity Union Building performing his duties as such guard. Swinney was sixty-one years of age, five feet six inches in height, and weighed approximately 135 pounds. He had been disabled and was drawing twenty percent government disability due to an arthritic spine. His spine was stiffened or ossified and he also suffered pain in his left arm and shoulder for which he received treatment from time to time. His disability resulted in his inability to stand completely erect. Nealy was twenty-nine years of age, six feet tall, and weighed 185 to 190 pounds. He had an athletic build and was in good health. The shooting occurred in the lobby of the Fidelity Union Building. Swinney testified that he first saw Nealy around six P.M. when he took Nealy to the basement in the elevator. The next time he saw him Nealy was standing near a buffer in the hall near the lobby and at that time was loud and boisterous and using vulgar language. Swinney testified that he asked Nealy to quit using the filthy language and Nealy disappeared but later returned to the lobby where he again used loud, vulgar and profane language. Swinney again warned him about his conduct and Nealy disappeared but again returned to the lobby using profane and loud language and demanded that Swinney get his hat from a closet. Swinney went with Nealy to a wire closet, unlocked the door, and obtained Nealy's hat from the closet. While in the closet Nealy struck Swinney and knocked him against the wall. Swinney apparently tried to get away from Nealy and went up the hallway but Nealy followed him and grabbed him, dragging him out to the main lobby of the building. Swinney testified:\\n\\\"Question: All right, then, you both turned and walked together; was he on your right or on your left?\\n\\\"Answer: He was on my left.\\n\\\"Question: All right, he would be on this side? (indicating). Now, let's walk straight down; we are going down the hall, now, and you walked here with him, Mr. Swinney (indicating) ; were any words spoken as you walked down that hall ?\\n\\\"Answer: He said, 'Give me my God damned hat.' \\\"\\n\\n\\\"Question: All right, and you unlocked the door ?\\n\\\"Answer: Unlocked the door \\u2014 when I unlocked it, he hit me and knocked me against that back wall.\\n\\\"Question: When you unlocked it?\\n\\\"Answer: Yes.\\n\\\"Question: And then did he reach in and get his hat?\\n\\\"Answer: He got his hat with one hand and grabbed me and dragged me halfway up that corridor.\\\"\\nsjc\\n\\\"Question: Did he grab you halfway up the corridor?\\n\\\"Answer: Yes, after he got me against the wall, he grabbed me again and dragged me both.\\n\\\"Question: Out to the main lobby ?\\n\\\"Answer: Yes, sir.\\n\\\"Question: Okey; did you break loose from him?\\n\\\"Answer: I broke loose and he grabbed me again and I told him to leave me alone and stay away from me.\\\"\\n*\\n\\\"Question : All right, you were backing toward Pacific ?\\n\\\"Answer: That's right.\\n\\\"Question: And he kept pursuing you, kept coming at you?\\n\\\"Answer: Yes, sir.\\n\\\"Question: And then what did you do?\\n\\\"Answer: I shot him.\\n\\\"Question: All right, did you have any argument at all about getting into that wire closet?\\n\\\"Answer: No argument getting into it. The argument started over grabbing the hat and shoving me around.\\\"\\n:Ji # j|c \\u00edfc ijs\\n\\\"Question: (By Mr. Bickel) Now, then, about this disorder, he wasn't being disorderly at the time he came up to get his hat; was he directing his remarks to anybody except you, Earl Swinney \\u2014 I mean when he came up to get the hat ?\\n\\\"Answer: When he come up to get the hat, it was directed at me.\\n\\\"Question: And was the rest of his grabbing and following and everything like that directed to you, you alone, Earl Swinney?\\n\\\"Answer: That's correct.\\\"\\nThe only other witness to this incident was James O. Donaldson, also an employee, and a friend of Nealy. He testified he did not hear any profanity or cursing and did not see Nealy strike Swinney or drag him at any time. Upon cross examination he admitted he did not actually see everything that transpired prior to the time he heard the shot which killed Nealy.\\nThe court submitted Special Issue No. 1 to the jury which inquired as to whether or not the shooting of Nealy by Swinney was wrongful. In connection with this issue the court gave to the jury a lengthy definition of the term \\\"wrongful\\\" which included the element of self defense and instructed the jury that if they believed that by the acts of Nealy it reasonably appeared to Swinney, viewed from his standpoint alone, that Nealy was then about to attack him in such a manner as to cause his death or serious bodily injury, or was reasonably calculated to create in the mind of Swinney a reasonable expectation or fear of death or serious bodily injury, that such killing would not be wrongful. The jury found that the killing was not wrongful. They also found in answer to Special Issue No. 2 that when Swinney shot and killed Nealy he was not acting as an employee of Fidelity Union Life Insurance Company, and in answer to Special Issue No. 9 that the act of Swinney in shooting Nealy was performed as a resentment of insults and in the furtherance of personal animosity of Swin-ney toward Nealy.\\nWe have carefully considered this, testimony, as well as the entire record,, pursuant to the now familiar rule announced! by our Supreme Court in In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, and! having done so we cannot say that there-is no evidence to support the jury's answers, to the issues in question. Nor can we say that the answers of the jury to these issues were so contrary to the great weight and! preponderance of the evidence as to be manifestly wrong or unjust. Accordingly, appellants' Points 5 through 12 inclusive, are overruled.\\nFinding no error demonstrated in this, record we affirm the judgment of the trial, court.\\nAffirmed.\"}"
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+"{\"id\": \"10162775\", \"name\": \"Earl Wayne PARSONS, II, Appellant, v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Parsons v. State\", \"decision_date\": \"1966-01-26\", \"docket_number\": \"No. 39210\", \"first_page\": \"283\", \"last_page\": \"283\", \"citations\": \"398 S.W.2d 283\", \"volume\": \"398\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T22:22:52.919897+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Earl Wayne PARSONS, II, Appellant, v. The STATE of Texas, Appellee.\", \"head_matter\": \"Earl Wayne PARSONS, II, Appellant, v. The STATE of Texas, Appellee.\\nNo. 39210.\\nCourt of Criminal Appeals of Texas.\\nJan. 26, 1966.\\nNo attorney of record on appeal for appellant.\\nLeon B. Douglas, State\\u2019s Atty., Austin, for the State.\", \"word_count\": \"140\", \"char_count\": \"836\", \"text\": \"MORRISON, Judge.\\nThe information attempts to charge a violation of Article 567b, Vernon's Ann. P.C., for delivering a worthless check in the sum of $10.00; the punishment assessed was 30 days in jail and a fine of $150.00.\\nNeither the complaint nor the information charges that the check was given with intent to defraud. The intent to defraud is an essential element of the offense. Art. 567b, Sec. 1, supra, Wright v. State, 168 Tex.Cr.R. 214, 324 S.W.2d 883, Martinez v. State, Tex.Cr.App., 325 S.W.2d 145, and the cases there cited.\\nThe judgment is reversed and the prosecution is ordered dismissed.\"}"
\ No newline at end of file
diff --git a/tex/10163837.json b/tex/10163837.json
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+"{\"id\": \"10163837\", \"name\": \"Eugene A. HANN, Appellant, v. LIFE & CASUALTY INSURANCE COMPANY OF TENNESSEE, Appellee\", \"name_abbreviation\": \"Hann v. Life & Casualty Insurance Co. of Tennessee\", \"decision_date\": \"1958-02-19\", \"docket_number\": \"No. 13278\", \"first_page\": \"261\", \"last_page\": \"265\", \"citations\": \"312 S.W.2d 261\", \"volume\": \"312\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T17:47:11.255885+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Eugene A. HANN, Appellant, v. LIFE & CASUALTY INSURANCE COMPANY OF TENNESSEE, Appellee.\", \"head_matter\": \"Eugene A. HANN, Appellant, v. LIFE & CASUALTY INSURANCE COMPANY OF TENNESSEE, Appellee.\\nNo. 13278.\\nCourt of Civil Appeals of Texas. San Antonio.\\nFeb. 19, 1958.\\nRehearing Denied March 19, 1958.\\nAlbert Joe Saegert, Seguin, Tom I. Mc-Farling, Schleyer & Bartram, \\u00a1New Braun-fels, Threlkeld, Saegert & Saegert, Seguin, for appellant.\\nEskridge, Groce & Hebdon, Frank P. Christian, San Antonio, for appellee.\", \"word_count\": \"1702\", \"char_count\": \"10097\", \"text\": \"W. O. MURRAY, Chief Justice.\\nThis is a suit on two insurance policies for accidental death benefits. Appellant, Eugene A. Hann, alleged that her husband, Grover C. Hann, the insured, was injured in an automobile accident and that he died two days later, his death being the result of personal injuries sustained solely through violent external and accidental means. The cause was tried to a jury and, on the basis of the jury's findings, the court rendered judgment on June 5,1957, in favor of appellant. However, on July 27, 1957, the court granted appellee's motion for judgment non obstante veredicto, set aside the judgment of June 5, 1957, and rendered judgment that appellant take nothing.\\nAppellant contends that appellee's motion for judgment non obstante veredicto was both filed and heard too late. The jury's verdict was received May 31, 1957, and on June 5, 1957, judgment on the verdict was rendered in appellant's favor. On June 11, 1957, appellee filed its motion for a new trial; on June 28, 1957, without asking or receiving leave of the court, appellee filed its amended motion for a new trial and on the same date also filed its motion for judgment non obstante veredicto. After finding that it was timely filed and presented, the trial court granted the motion non obstante veredicto and rendered judgment in appellee's favor.\\nAppellant's first contention is that appellee's amended motion was a nullity because it was filed without leave of the court, and, therefore, appellee's original motion for a new trial was overruled by operation of law thirty days from the day it was filed, which would have been July 13,. 1957. In this appellant is mistaken. Since the adoption of Rule 329-b, Texas Rules of Civil Procedure, effective January 1, 1955,. the motion would not be overruled by operation of law until forty-five days after it was filed, which would be July 27, 1957, the day upon which appellee's motion for judgment non obstante veredicto was granted. Therefore, even if the amended motion for new trial was a nullity,'the motion for judgment non obstante veredicto was timely passed upon. The rules do not provide for a time limit on the filing and passing upon of a motion non obstante vere-dicto, therefore, such motion may be filed even after the court has rendered judgment on the verdict, and may be acted upon any time before the motion or amended motion for a new trial has been overruled, either by the court or by operation of law.\\nThe third ground set out in the motion for judgment non obstante veredicto reads as follows:\\n\\\"In order for the Plaintiff to recover on the two insurance Polices on which she brought suit it was necessary for her to prove and obtain a finding that there was a visible contusion or wound on the exterior of the body of the insured as provided in both Policies. The Plaintiff did not obtain such a finding and having failed to meet her burden of proof is not entitled to recover anything against the defendant.\\\"\\nThe trial court, in attempting to submit to the jury the question as to whether there were visible contusions or wounds upon the exterior of insured's body, of the injury causing his death, submitted Special Issue No. 4, reading as follows:\\n\\\"Do you find from a preponderance of the evidence that the exterior of the Body of Grover C. Hann showed any visible marks or evidences caused from such accidental bodily injuries, if any, to the said Grover C. Iiann?\\\"\\nwhich the jury answered in the affirmative. Appellee excepted to this issue, among other things, because it was not in the language of the policies relating to this matter, and its exception was overruled. In this action the court may have erred, but the court's error in overruling an exception to the charge is not such an error as can be raised by a motion for judgment non obstante ver-edicto. The court can only grant a motion for judgment non obstante veredicto where an instructed verdict would have been proper. Rule 301, T.R.C.P.; Houston Fire and Casualty Ins. Co. v. Walker, 152 Tex. 503, 260 S.W.2d 600; Crow v. City of San Antonio, Tex.Civ.App., 294 S.W.2d 899; Wilderspin v. Bewley Mills, Inc., Tex.Civ.App., 298 S.W.2d 636. An issue in the same form as here used was held sufficient by the Court in American National Insurance Co. v. Fox, Tex.Civ.App., 184 S.W.2d 937.\\nThe motion for judgment non ob-stante veredicto did not challenge one or more special issues, but, on the contrary, only asked for judgment notwithstanding the entire verdict. From such a motion we must presume that each issue was supported by the pleadings and the evidence. Service Life Ins. Co. v. Miller, Tex.Civ.App., 271 S.W.2d 301; Rules Nos. 300 and 301, T.R.C. P.\\nBefore the court could properly have disregarded the jury's answer to Special Issue No. 4, the motion non obstante veredicto would be required to single out this issue and ask that its answer be disregarded. Traders & General Ins. Co. v. Heath, Tex.Civ.App., 197 S.W.2d 130. In appellee's motion non obstante veredicto there was no request that the answer to any one or more issues be disregarded, it requested that the entire verdict be disregarded. Jinks v. Whitaker, 145 Tex. 318, 198 S.W.2d 85.\\nAppellee contends that the trial court properly granted its motion for judgment non obstante veredicto, because there was no evidence that the deceased insured had a visible wound or contusion on the exterior of his body. We have serious doubts if appellee can here raise this question, under the authorities we have cited above, as it failed to ask that the jury's answer to Special Issue No. 4 be set aside as being unsupported by the evidence. But if we be mistaken in this, then there was evidence of such contusion. Appellant testified that the insured's neck was swollen and he was spitting up blood. One doctor testified that these facts were evidence that insured had either sustained a broken rib and it had pierced a lung, or he had received a neck injury which affected his breathing, and that either condition could have caused his death.\\nIn answer to the special issues submitted, the jury found that:\\n1. Insured, while driving his private car on the Randolph Field-Seguin Highway, had an accident to his car on December 16, 1955.\\n2. Such accident to the private car of insured directly and proximately caused accidental bodily injuries to insured.\\n3. Such accidental bodily injuries resulted in the death of insured.\\n4. The exterior of the body of insured showed visible marks or evidences caused from such accidental bodily injuries.\\nThis verdict of the jury, when taken in connection with the undisputed evidence, warranted the judgment rendered by the trial court on June 5, 1957, and the court erred in setting it aside.\\nAppellee contends that the policies provide that insured's death had to be caused solely by violent, external and accidental means, and that appellant failed to secure such a finding from the jury. We do not agree. The only requirement in the policies is that insured's injuries be caused solely by violent external and accidental means. Bankers' Health & Accident Co. of America v. Shadden, Tex.Civ.App., 15 S.W.2d 704; Commonwealth Casualty & Ins. Co. v. Laurence, Tex.Civ.App., 223 S.W.2d 337; McVeigh v. International Travelers Assur. Co., Tex.Civ.App., 101 S.W.2d 644; Provident Life & Accident Ins. Co. v. Huston, Tex.Civ.App., 305 S.W.2d 837; Benefit Association of Railway Employees v. Armbruster, 224 Ala. 302, 140 So. 356; Clay County Cotton Co. v. Home Life Ins. Co. of New York, 8 Cir., 113 F.2d 856.\\nAppellee has not filed any cross-points asking that this cause be reversed and remanded so it might file a motion for new trial, or, perhaps it would be more correct to say, have the trial court pass upon the motion for a new trial which it has already filed. Rule 324, T.R.C.P., as amended, effective September 1, 1957.\\nAccordingly, the judgment non obstante veredicto will be reversed and judgment here rendered that appellant recover of ap-pellee the sum of $2,980, together with interest at the rate of 6% per annum from June 5, 1957.\\nReversed and rendered.\"}"
\ No newline at end of file
diff --git a/tex/10163953.json b/tex/10163953.json
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+"{\"id\": \"10163953\", \"name\": \"Osborn Donald CURRY, Appellant, v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Curry v. State\", \"decision_date\": \"1956-11-14\", \"docket_number\": \"No. 28592\", \"first_page\": \"214\", \"last_page\": \"214\", \"citations\": \"295 S.W.2d 214\", \"volume\": \"295\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T19:42:33.581007+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Osborn Donald CURRY, Appellant, v. The STATE of Texas, Appellee.\", \"head_matter\": \"Osborn Donald CURRY, Appellant, v. The STATE of Texas, Appellee.\\nNo. 28592.\\nCourt of Criminal Appeals of Texas.\\nNov. 14, 1956.\\nNo attorney for appellant of record on appeal.\\nLeon B. Douglas, State\\u2019s Atty., Austin, for the State.\", \"word_count\": \"100\", \"char_count\": \"614\", \"text\": \"DAVIDSON, Judge.\\nAppellant was convicted of forgery, with a previous conviction for like offense, and his punishment was assessed at confinement in the penitentiary for seven years.\\nThe record is before us without a statement of facts, in the absence of which the exceptions to the court's charge cannot be considered. There are no formal bills of exception.\\nThe judgment is affirmed.\"}"
\ No newline at end of file
diff --git a/tex/10167895.json b/tex/10167895.json
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--- /dev/null
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+"{\"id\": \"10167895\", \"name\": \"R. S. WAGONER, Appellant, v. CITY OF ARLINGTON, Appellee\", \"name_abbreviation\": \"Wagoner v. City of Arlington\", \"decision_date\": \"1961-03-24\", \"docket_number\": \"No. 16203\", \"first_page\": \"759\", \"last_page\": \"764\", \"citations\": \"345 S.W.2d 759\", \"volume\": \"345\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T23:49:37.146652+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"R. S. WAGONER, Appellant, v. CITY OF ARLINGTON, Appellee.\", \"head_matter\": \"R. S. WAGONER, Appellant, v. CITY OF ARLINGTON, Appellee.\\nNo. 16203.\\nCourt of Civil Appeals of Texas. Fort Worth.\\nMarch 24, 1961.\\nRehearing Denied April 21, 1961.\\nMartin, Moore & Tackett, and Elvin E. Tackett, Fort Worth, for appellant.\\nJames E. Wright, Fort Worth, for ap-pellee.\", \"word_count\": \"2985\", \"char_count\": \"17669\", \"text\": \"MASSEY, Chief Justice.\\nThis is a condemnation suit. Appellant R. S. Wagoner was the owner of the property taken, and of land not taken, to the extent of approximately 188 acres, lying across a county road from that condemned by the City of Arlington for the purpose of constructing an airport. He will be hereinafter referred to as condemnee. The City of Arlington will be hereinafter referred to as the city.\\nCondemnee contested the right of the city to take his property. After issues were joined in the trial court the city filed its motion for summary judgment in relation to the matter of right and propriety of its condemnation proceedings, and following a hearing partial summary judgment was entered as prayed for. The effect thereof was to make the only issues for trial before the jury the amount of damages which con-demnee was entitled to receive.\\nAt the conclusion of the trial a single special issue was submitted to t\\u00edre jury, posing inquiry as to the value of the con-demnee's property taken for airport purposes. The court refused to submit issues upon the question of the value, \\\"before and after\\\" condemnation, of condemnee's remaining 188 acres. The court denied con-demnee's motion for leave to make the opening and closing argument before the jury, allowing the city to make such over condemnee's protest.\\nThe jury returned its verdict finding the value of the condemned land, and judgment was entered based upon the verdict. Condemnee has appealed.\\nJudgment reversed and remanded.\\nWe are of the opinion that the case should be reversed because of the refusal to permit the condemnee to open and close the argument made to the jury. In the case of Ready v. City of Marshall, Tex.Civ.App., Ft. Worth 1950, 234 S.W.2d 104, this court had a somewhat similar case to that before us and saw fit to reverse and remand the same for .another trial because of the failure of the trial court to permit the condemnee to open and close the argument. The holding was that reversible error appeared and that Texas Rules of Civil Procedure, rule 269 controlled the case.\\nWe believe any attempted distinction between the instant case and that of Ready v. City of Marshall would be of form rather than of substance. In our opinion the decision reached in the Ready case was correct and the judgment therein was properly reversed. It necessarily follows that the judgment in the instant case should be reversed and remanded because of the trial court having denied condemnee the right to open and close the argument to the jury on the issue of damages, such being the only issue submitted.\\nWe recognize that argument may be made that T.R.C.P. 434 applies to a situation such as this. It has been held that the denial to the party who has the right, under the provisions of T.R.C.P. 266 and 269, to open and close the argument before the jury constitutes an error of law committed during the course of the trial, and that in order for such error to require reversal the complainant thereof must demonstrate from the whole record that it was reasonably calculated to cause and probably did cause the return of an erroneous verdict or rendition of an erroneous judgment. Hassell v. Pruner, Tex.Civ.App., Amarillo 1956, 286 S.W.2d 266, writ ref. n. r. e. (a will contest); Harrison v. Chesshir, Tex.Civ.App., Amarillo 1958, 316 S.W.2d 909, reversed on other grounds in 159 Tex. 359, 320 S.W.2d 814 (an injunction suit). We have noticed also that in other jurisdictions the denial of a right to open and close has been held to warrant reversal only when the denial has been shown to have amounted to an abuse of discretion. See text and annotations at 53 Am.Jur., p. 368, \\\"Trial\\\", sec. 462, \\\"Order of Argument; Right to Open and Close\\\".\\nNevertheless, we believe that T.R.C.P. 434 does not apply to the particular case and situation before us and that T.R.C.P. 266 and 269 afforded condemnee the right to open and close the argument before the jurjq since he insisted thereupon and moved the court for leave to do so, which motion was denied. Regarding the securing of such right see Rayburn, Texas Law of Condemnation, Sec. 214(1), \\\"Argument In the Trial Court \\u2014 Permissible and Erroneous Argument\\\". In 5 Texas Bar Journal p. 95 and 8 Texas Bar Journal p. 8 these rules were interpreted by the subcommittee on interpretation of the Texas Rules of Civil Procedure. This interpretation is printed under both rules in Vernon's Annotated Texas Rules. The answer printed is upon the matter of \\\"when the plaintiff has the right to open and close\\\", and excepts from such times \\\"(2) where the defendant has the burden of proof on all matters which are submitted by the Court's charge to the jury, \\\". T.R.C.P. 269 affirmatively states that the \\\"party having the burden of proof on all matters which are submitted by the charge\\\" shall be entitled to open and conclude the argument. In the instant case the con-demnee had and preserved the substantive legal right to open and conclude the argument to the jury. There is an absence of any proof placed in the record which creates a contrary inference. We therefore believe that the error should be considered and treated as so substantial in nature or so connected with the rights of the parties or the course of the proceedings that it cannot be said that the error did not influence the result. Therefore said error amounted to reversible error. On the matter of such a defendant's right to open and close and upon the distinction applicable to cases decided before and after the effective date of the 1941 Rules see McDonald, Texas Civil Practice, p. 1181, \\\"Jury Trial: Argument\\\", sec. 13.02, \\\"Order and Time Allowed\\\".\\nThe evidence in the record constituted proof that the parcel of condemnee's land which was condemned by the city, lying on one side of a county road across from the remainder of condemnee's land, was, at the time it was taken, being used along with and in conjunction with said remainder for one general purpose and in such manner as to warrant treating the two tracts as an entire parcel. In other words the situation was such that under ordinary usage the inquiry pursuant to condemnation proceedings would have been not only as to the value of the land condemned and taken, but additionally as to the damages sustained by the decrease, if any, in the value of his remaining land. See Concho, S. S. & L. V. Ry. Co. v. Sanders, Tex.Civ.App., Austin 1912, 144 S.W. 693; Southwestern Public Service Co. v. Goodwine, Tex.Civ.App., Amarillo 1949, 228 S.W.2d 925, writ ref. n. r. e.; Gulf, Colorado and Santa Fe Railway Co. v. Payne, Tex.Civ.App., Ft. Worth 1957, 308 S.W.2d 146; 18 Am.Jur., p. 910, \\\"Eminent Domain\\\", Sec. 270, \\\"Damage to Other Land of Same Owner\\\"; 170 A.L.R. at page 721 et seq. under Annotation, \\\"Compensation for diminution in value of the remainder of property resulting from taking or use of adjoining land of others for the same undertaking\\\"; 6 A.L.R.2d at page 1197 et seq. under Annotation, \\\"Unity or contiguity of properties essential to allowance of damages in eminent domain proceedings on account of remaining property.\\\"\\nWe do not believe, however, that in this particular case condemnee properly showed himself entitled to introduce evidence concerning the diminution in the value of his remaining land after a part was taken, \\u2014 or tendered evidence thereon proper to be received,' \\u2014 and therefore there was no error in the court's refusal to admit same. The reason therefor is somewhat peculiar and may be such ,as will not reoccur upon the occasion of another trial. Condemnee was attempting to try his case on the theory that the highest and best use of his property, both as to that taken in condemnation and as to the remainder left in his hands, was for residential purposes and not for the farming and ranching purposes to which same was devoted at the time the city's condemnation proceeding was instituted. Under that theory we do not believe there could be any proper claim of unity between the land taken and the remainder and there would not be any damage which would necessarily inure to the 188 acres remaining. Only under the theory that the \\\"unit\\\", i. e. the whole use of the land held and unitized (as to use), was so substantially destroyed or diminished in utility that the value of the land remaining after condemnation was disproportionately reduced in value in comparison with the value of that taken as the direct result of the deletion from the \\\"unit\\\" of the portion condemned, and/or as the direct result of its devotion to the purposes for which it was condemned, would condemnee be entitled to seek damages to the remaining land. This was not condemnee's theory and the evidence on damages tendered by him in his bill of exceptions had no relation thereto. Furthermore, tire evidence which he did tender as part of his bill constituted, in part, mere proof of damage which he, in common with the community as a whole, would endure because an airport was located nearby. This would not constitute damages inuring to him as a condemnee because of a diminution in the value of his land remaining after condemnation. In another respect the tendered proof was based upon the hypothesis that the value of condemnee's remaining land (for residential development purposes) would suffer because of a decrease in its desirability because of the proximity of an airport. This proof upon damages we consider to have been too remote, speculative and conjectural and therefore it was properly excluded.\\nWe do not believe that there was any error in the trial court's rendition of partial summary judgment prior to the trial of the issues upon damages. It was con-demnee's contention that condemnation was improper because the city owned nearby property which was suitable for use as an airport, and which the city desired to sell,, using the proceeds from the sale for the purpose of relocating the same airport and acquiring a part of his land. Basically, con-demnee's contention of impropriety lay in the fact that residential development of the city was approaching the present airport land, as result of which it had become rather valuable for residential purposes, and that the city's motive was inspired by a desire to sell the same for sufficient money to enable it to acquire the new site and have a profit for itself.\\nWe believe a proper construction of the record, as same was before the trial court for consideration in passing upon the city's motion for summary judgment, would be that the question was posed as to whether the evidence proper to be considered, in the light of the motion, presented an issue of fact by reason of the condemnee's affirmative allegations that the city's initiation of the proceedings under authority of its Charter, pertinent Eminent Domain Statutes, under Vernon's Ann.Tex.Civ.St. Art. 1107, \\\"Condemnation of property\\\", and Art. 1269h, \\\"Airports, maintenance and operation\\\", Sec. 1, subd. A, \\\"Acquisition; sale or lease\\\", constituted and amounted to arbitrary and capricious action. It furthermore appears that the condemnee claimed that the city's action amounted to a legal fraud.\\nConsideration of the question requires application of tests in the determination of whether the condemnee had raised an issue under the pleadings and evidence before the court at the summary judgment hearing. He could be considered to have raised the issue only if it was unquestionably established in the evidence that there could have been no actual public necessity for the city to seek the land in question for airport purposes. The terms \\\"arbitrary\\\" and \\\"capricious\\\" as applied to the city's action must mean willful and unreasoning action, action without consideration and in disregard of the facts and circumstances \\u2022existed at the time condemnation was decided upon, or within the foreseeable future. It is the purpose for which condemnation was sought which is to be examined in resolving the question; and if this purpose could in reasonable minds in good faith be deemed to be a public one, then there would be justification and lawful authority for the condemnation proceedings. Furthermore, though it be established that one result of such proceedings would be that the city would reap a profit such in itself could not raise an issue (even assuming that the profit objective under some circumstances would vitiate the proceedings) if there was also evidence that the public would benefit, as for example by having a more ready and convenient and accessible airport, one which was better drained of surface water following rains, one which would be more adaptable to airport purposes, etc., than would be the case if the land were not acquired.\\nThe term \\\"fraud\\\" as applied to the institution of condemnation proceedings would be any act, omission or concealment, which involved a breach of legal duty, trust or confidence, justly reposed and is injurious to another, or by which an undue and unconscientious advantage is taken of another. Boucher v. Texas Turnpike Authority, Tex.Civ.App., Texarkana 1958, 317 S.W.2d 594, 601, citing from Kellum v. Smith, 1857, 18 Tex. 835, 836.\\nFrom our examination of the record we are convinced that the condemnee failed to raise a question upon the issue of fraud or upon the issue of whether the city's action was arbitrary and capricious. In so stating it is pointed out that we are talking about a Judicial Issue. When the use for which property is sought under authority of the statutes of eminent domain is an authorized public use the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance. Imperial Irr. Co. v. Jayne, 1911, 104 Tex. 395, 138 S.W. 575, 587.\\nThe history of the many laws enacted by the legislature of this State relating to the exercise of the right of eminent domain clearly shows that it is the policy of the legislature to liberalize the exercise of that power rather than to restrict it. Brazos River Conservation and Reclamation Dist. v. Costello, 1940, 135 Tex. 307, 143 S.W.2d 577, 130 A.L.R. 1220. In order for there to be a judicial issue, the condemnee must plead and prove that the city's act was founded in fraud or was arbitrary and capricious. It could not be said that condemnee has met the requisites of proof by merely introducing facts and inferences showing that alternate plans might be feasible or better adapted to the project sought to be accomplished which would not require his property, that the project was not essential or necessary, or that incident thereto the condemning authority might reap a profit. In such instances questions as to the necessity of taking the land sought to be condemned are concluded when the applicant for condemnation, acting within the scope of its authority, determines its use is necessary. The reason for this rule is that if it were otherwise one jury might hold on competent evidence that land in question in the suit (a constituent part of the whole of a larger amount necessary to the accomplishment of the objective of the condemning authority) was not necessary to such purposes and the accomplishments of an entire project destroyed because of the inability to obtain the small part' of land which made the subject of the particular condemnation suit. 16 Tex.Jur., p. 401, \\\"Em inent Domain\\\", sec. 128, \\\"Condemnation of Particular Property\\\".\\nNeither may it he stated that in said connection a condemnee has met the requisites of proof sufficient to present a judicial issue where the record shows that there was room for two opinions, at the time the condemning authority determined upon the basis of one of such opinions that the land sought should be condemned. Action is not arbitrary and capricious when exercised honestly and upon due consideration, where there is room for two opinions, however much it may be believed that an erroneous conclusion was reached. Rayburn, Texas Law. of Condemnation, Sec. 38(1), p. 94 et seq., \\\"Purposes For Which Land Is To Be Taken, Must Be Set Out In Statement In Writing\\\"; Webb v. Dameron, Tex.Civ.App., Amarillo 1949, 219 S.W.2d 581, writ ref. n. r. e.\\nCondemnee cites liberally from the case of Brazos River Conservation & Reclamation Dist. v. Harmon, Tex.Civ.App., Eastland 1944, 178 S.W.2d 281, writ ref. want of merit. In that case the condemnor was held to have clearly abused its discretion in that, as a matter of law, it attempted to take more land than was necessary for the effectuation of the purposes to be accomplished by the project at hand. A distinction is to be made between such case and the case at bar. Here there is no contention that the city is seeking more land than is necessary for the purpose to be accomplished, but the contention is that the project is not necessary at all.\\nRemaining points of error -relate to matters which probably will not occur upon the occasion of another trial. As indicated in the opinion another trial will be necessary because of the error of the trial court in refusing to permit condemnee to open and close the argument. For any necessity which might become apparent we will state that said points of error have been examined and are deemed without merit -and for that reason are overruled.\\nJudgment reversed and cause remanded for another trial.\"}"
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+"{\"id\": \"10185511\", \"name\": \"Mrs. Emily LEBOHM, Petitioner, v. CITY OF GALVESTON, Respondent\", \"name_abbreviation\": \"Lebohm v. City of Galveston\", \"decision_date\": \"1955-01-19\", \"docket_number\": \"No. A-4814\", \"first_page\": \"951\", \"last_page\": \"955\", \"citations\": \"275 S.W.2d 951\", \"volume\": \"275\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Supreme Court of Texas\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T17:50:45.440340+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mrs. Emily LEBOHM, Petitioner, v. CITY OF GALVESTON, Respondent.\", \"head_matter\": \"Mrs. Emily LEBOHM, Petitioner, v. CITY OF GALVESTON, Respondent.\\nNo. A-4814.\\nSupreme Court of Texas.\\nJan. 19, 1955.\\nRehearing Denied March 2, 1955.\\nBarker & Barker, Galveston, for petitioner.\\nH. E. Kleinecke, Jr., and James A. Piperi, Galveston, for respondent.\", \"word_count\": \"2819\", \"char_count\": \"16765\", \"text\": \"CALVERT, Justice.\\nWhile using a street in the City of Galveston, petitioner tripped on an obstruction therein and fell, sustaining injuries made the basis of this suit. By special exception, and otherwise, respondent interposed Section 47 of its Charter \\u2014 a charter granted by-special act of the Legislature in 1903, Sp. Laws 1903, c. 37- \\u2014 as an absolute defense to petitioner's suit for damages. The defenses were overruled and the case was submitted to a jury which made findings of negligence on the part of the city, proximate cause and damages, resulting in a trial court judgment for petitioner. Holding that the evidence was sufficient to support the jury findings but that Section 47 of the Charter was valid and an absolute defense to the suit, the Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for respondent. 268 S.W.2d 782.\\nThere is no question but that the aforementioned Charter provision is an absolute defense to the suit if it is valid. It reads as follows: \\\"That the city of Galveston shall not be liable in damages for any injury or injuries to persons or to property caused by filling, raising, grading or elevating any property within the city of Galveston, or in the prosecution of any public improvement in said city, or on account of any defect of any street, sidewalk or other public place.\\\"\\nAs sustaining the validity of the Charter provision respondent relies on Williams v. City of Galveston, 41 Tex.Civ.App. 63, 90 S.W. 505, writ refused, and Reegan v. City of Galveston, Tex.Civ.App., 24 S.W.2d 61, writ dismissed, in which the validity of this Charter provision was in issue and in which it was sustained, in each instance, by the Galveston Court of Civil Appeals against the contention that it was in violation of Article I, Section 13 of the Constitution of Texas, Vernon's Ann.St., reading in part as follows: \\\"All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.\\\"\\nAs supporting her position that the provision is invalid petitioner relies, principally, on City of Amarillo v. Tutor, Tex.Com.App., 267 S.W. 697; City of Amarillo v. Green, Tex.Com.App., 267 S.W. 702; Hanks v. City of Port Arthur, 121 Tex. 202, 48 S.W.2d 944, 83 A.L.R. 278; City of Wichita Falls v. Lipscomb, Tex.Civ.App., 50 S.W.2d 867, writ refused, and City of Terrell v. Howard, 130 Tex. 459, 111 S.W.2d 692.\\nNone of the cases cited by petitioner involved the Galveston Charter provision and the Court of Civil Appeals chose, understandably, to follow and be governed by the Williams and Reegan cases. Since the Williams case was a one-point case, it is difficult to understand how this Court could have refused a writ of error except upon the theory that it was in agreement with the holding of the Galveston Court that the provision was valid. It seems to us, however, that the question needs reconsideration in the light of later decisions of this Court.\\nIt may be noted that the Charter provision in question here is subject to the same objections as those enumerated in the opinion of the Commission of Appeals which prompted this Court to strike down the statute and ordinance in City of Amarillo v. Tutor and City of Amarillo v. Green, to wit: 1. The provision exempts the City of Galveston from liability for damage to property in violation of Article I, Section 17 of the Constitution prohibiting the taking or damaging of property without adequate compensation being made. 2. It exempts the city from liability for damage growing out of injuries resulting in death and therefore conflicts with a general law as enacted by the Legislature. Article 4671, Vernon's Ann.Civ.St. 3. It exempts the city from liability for damage to property or injuries to persons willfully or intentionally inflicted and to that extent is violative of Article I, Section 13 of the Constitution. With similar findings in the Tutor case the Court proceeded to hold that the statute and ordinance there involved were subject to so many objections that they would be held invalid in their entirety. A similar conclusion was reached in Hanks v. City of Port Arthur, that is, that the Charter provision being invalid in some respects it would be held invalid in its entirety. We might rest our decision in this case on these holdings in the Tutor and Hanks cases but. choose not to do so.\\nAs the major basis for our conclusion that Section 47 of the Galveston Charter is invalid, we consider that the necessary-effect of Hanks v. City of Port Arthur and City of Terrell v. Howard, and as well the direct holding in City of Wichita Falls v. Lipscomb, is to deny to legislative bodies the right to arbitrarily abolish causes of action against municipalities where such causes of action are well established and well defined in the common law.\\nHanks v. City of Port Arthur and City of Terrell v. Howard did not involve the validity of exemption provisions but their ap-positiveness to that problem is apparent. In both cases this Court declared, unequivocally, that charter provisions or ordinances imposing unreasonable restrictions on the right to sue a city for damages for injuries for which the liability of the city was well established at common law were violative of Article I, Section 13 of the Constitution, quoted above, and therefore invalid. It is true that in both cases the Court noted particularly that it was not called on to pass on the validity of an exemption provision, but we can perceive no reasonable basis for striking down the one provision and upholding the other. If the due process clause of our Constitution inhibits legislation unreasonably restricting the right to sue in a given field it also inhibits legislation arbitrarily abolishing the right to sue in the same field. But it is unnecessary to rely entirely on the two decisions mentioned. As indicated above, it was the direct holding of the Fort Worth Court of Civil Appeals in City of Wichita Falls v. Lipscomb that a charter provision abolishing rights of action against the City of Wichita Falls for damages for personal injuries and exempting the city from liability therefor was in violation of Article I, Section 13 of the Constitution and therefore invalid. In that case injury was sustained by reason of the negligence of the city in the operation of its water department, a proprietary function, while in this the injury was sustained by reason of negligence of the city in the maintenance of its streets, a proprietary function. By refusal of a writ of error in City of Wichita Falls v. Lipscomb the opinion of the Court of Civil Appeals in the case was made the opinion of this Court. Thompson v. Gibbs, 150 Tex. 315, 240 S.W.2d 287. We know of no sound basis for distinguishing the two cases and conclude that the question here is foreclosed by the decision in that case. The charter provision is declared to be invalid.\\nIn an able amicus curiae brief Honorable J. M. Singer, City Attorney of the City of Corpus Christi and President of the Texas City Attorneys' Association, suggests that in point of fact, and contrary to the holding of this Court in City of Galveston v. Posnainsky, 62 Tex. 118, 50 Am.Rep. 517, cities are actually performing a governmental function in the building and maintenance of streets and ought to enjoy the same exemption from liability as is accorded to the State and counties in the building and maintenance of public roads and highways. This exact reasoning in large measure was the basis for this Court's original holding in City of Navasota v. Pearce, 46 Tex. 525, that a city was not liable for injuries resulting from its negligence in the maintenance of streets, but the subject was re-examined in City of Galveston v. Posnainsky, supra, and the reasoning rejected. It is admitted on all hands, as it was in City of Navasota v. Pearce, that the great weight of authority supports the view adopted in the Posnainsky case and adhered to in this state since that time. Considering that the principle is now well established in the municipal law of this state, in the absence of a very clear showing that it was erroneously established we regard the matter as governed by the rule of stare decisis.\\nThe judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.\"}"
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+"{\"id\": \"10198366\", \"name\": \"ROAD DIST. NO. 1, JEFFERSON COUNTY, v. SELLERS, Atty. Gen., et al.; JEFFERSON COUNTY v. SAME (three cases)\", \"name_abbreviation\": \"Road Dist. No. 1, Jefferson County v. Sellers\", \"decision_date\": \"1944-05-10\", \"docket_number\": \"Nos. A-100, 101, 102, 103\", \"first_page\": \"138\", \"last_page\": \"144\", \"citations\": \"180 S.W.2d 138\", \"volume\": \"180\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Supreme Court of Texas\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:40:44.852898+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ROAD DIST. NO. 1, JEFFERSON COUNTY, v. SELLERS, Atty. Gen., et al. JEFFERSON COUNTY v. SAME (three cases).\", \"head_matter\": \"ROAD DIST. NO. 1, JEFFERSON COUNTY, v. SELLERS, Atty. Gen., et al. JEFFERSON COUNTY v. SAME (three cases).\\nNos. A-100, 101, 102, 103.\\nSupreme Court of Texas.\\nMay 10, 1944.\\nShelby Long, Co. Atty., and Earl Black, Asst. Co. Atty., both of Beaumont, for petitioners.\\nGrover Sellers, Atty. Gen., and C. F. Gibson and Gaynor Kendall, Asst. Attys. Gen., for respondent.\\nHamilton, Lipscomb, Wood & Swift, of Dallas, for respondent Southwestern Life Iris. Co.\\nRoy B. Lucas, Stanley Bassett, and L. H. Betts, all of Kansas City, Mo., for respondent Kansas City Life Ins. Co.\\nWitt, Terrell, Lincoln, Jones & Riley and W. E. Terrell, all of Waco, for respondent Amicable Life Ins. Co.\\nBlack, Graves & Stayton and Chas. L. Black, all of Austin, for respondents Employers Casualty Co. and Texas Employers Insurance Ass\\u2019n and others.\\nGoldsmith & Bagby, of Austin and W. P. Dumas, John D. McCall, Clarence E. Crowe, and Millard Parkhurst, all of Dallas, for respondents State Life Ins. Co. and others.\\nStrong & Moore and Beeman Strong, all of Beaumont, for respondent T. F. Roth-w\\u00e9ll.\", \"word_count\": \"3364\", \"char_count\": \"19502\", \"text\": \"ALEXANDER, Chief Justice.\\nJefferson County has filed three original applications in this court for writs of mandamus to compel the Attorney General to approve the issuance of certain refunding bonds which it proposes to issue for the purpose of taking up and discharging certain bonds theretofore issued by it. Road District No. 1 of Jefferson County has filed a similar application. The Attorney General has refused to approve the issuance of the new bonds on the ground that the outstanding bonds sought to be refunded are now owned by third parties and are not redeemable at this time. All four applications will be disposed of under a single opinion.\\nArticle 611 as it was embodied in Chapter 1, Title 18, of Revised Statutes of 1911, read as follows:\\n\\\"All bonds issued under this chapter shall run not exceeding forty years, and shall be redeemable at the pleasure of the county at any time after five years after the issuance of the bonds, or after any period not exceeding ten years, which may be fixed by the commissioners' court.\\\" (Italics ours.)\\nThis same article was brought forward as Article 720 in Chapter 2, Title 22, in the recodification of 1925 in the same language, except that the word \\\"shall,\\\" which we have italicized, was changed to \\\"may.\\\" It has remained unchanged since that time. Hereinafter in referring to the above statute, it will be referred to as Article 611 when we are discussing bonds issued pri- or to 1925, and as Article 720 when we ar\\u00e9 discussing bonds issued subsequent to 1925.\\nIn the case of Cochran County v. Mann, Attorney General, 141 Tex. 398, 172 S.W.2d 689, we held that where bonds were issued under Chapter 1 of Title 18 of Revised Statutes of 1911, or Chapter 2 of Title 22 of Revised Statutes of 1925, the above-quoted statute was read into and made a part of the bond contract, and that if the Commissioners' Court at the time the bonds were issued made no provision concerning its right to redeem the bonds prior to their maturity, the bonds were redeemable at the pleasure of the county at any time after five years after the issuance thereof. We further held that the Commissioners' Court could, by an appropriate order entered at the time the bonds were issued, postpone the date after which the bonds could be redeemed to not exceeding ten years from the date of their issuance.\\nNone of the bonds here sought to be refunded were issued under the chapter which embodied the statute above quoted. None of the bonds are now due, nor are they by their terms redeemable at this time. Neither is there any provision in the acts or chapters under which they were issued which, standing alone, makes the bonds redeemable at this time. If any of the bonds are now redeemable, it is solely by virtue of the fact that the acts under which they were issued refer back to the article above quoted, and thereby make its provisions applicable to such bonds.\\nThe bonds involved in cause No. A-101 were issued in 1935 by Jefferson County under a Special Law, Acts 1934, 43rd Leg., 4th C.S., p. 78, ch. 32, for the purpose of constructing the Neches River bridge. This case will be discussed first because in our opinion the record is more favorable to petitioner than are the records in the other cases. The only material provision of the Special Act authorizing the issuance of these bonds will be found in Section 3 thereof. It reads in part as follows:\\n\\\"Said bonds, if voted, shall bear interest at the rate of not exceeding five per cent (5%) per annum and shall mature not later than thirty (30) years from their date and shall be issued in such denominations and payable at such time or times as may be deemed most expedient by the Commissioners Court of Jefferson County. Said bonds shall be voted and issued under the provisions of Chapters 1 and 2 of Title 22, Revised Civil Statutes of 1925, except as otherwise provided by this Act.\\\"\\nIt will be noted that the act provides that the bonds therein provided for shall be issued under the provisions of Chapters 1 and 2, Title 22, of Revised Statutes of 1925, \\\"except as otherwise provided by this Act.\\\" This makes it clear that in the event of a conflict between the provisions of said Chapters 1 and 2 and the provisions of this act, the latter will control in so far as the bonds here involved are concerned.\\nIt is contended that the herein-above quoted Article 720, which makes certain county bonds redeemable under certain conditions after five years from the date of their issuance, is applicable to the bonds here under consideration. Article 720 is by its terms made applicable only to bonds issued under the provisions of \\\"this Chapter,\\\" meaning Chapter 2, Title 22, of Revised Statutes of 1925. The bonds in question were not issued under that chapter. Since the Legislature saw fit to limit the provisions of Article 720 to bonds issued under that specific chapter we should not extend its provisions to bonds issued under other acts and chapters, unless it is reasonably clear that such was the intention of the Legislature. If its provisions have been so extended as to cover the bonds here involved, it is solely because the act under which these bonds were issued in some way refers thereto and incorporates its provisions as a part of said act. In the case of State v. Frear, 144 Wis. 79, 128 N.W. 1068, 1074, 140 Am.St.Rep. 992, the Supreme Court of Wisconsin, discussing the claim that the provisions of an older law had been adopted, had the following to say:\\n\\\"We should have as little confusion as possible in our statute law. Where the attempt is made to incorporate parts of a former law into one that is being presently made, the language used should be such as to indicate with a reasonable degree of certainty what was in the legislative mind. A careful and intelligent reading of the two acts should be sufficient to indicate to the reader what parts of the old law were applicable to and were incorporated in the new. People are obliged to obey the laws, and, in order that they may do so, they should be put in a position where they can ascertain what they are.\\\"\\nThe rule above announced is peculiarly applicable in a case such as this, for it is always essential that bond contracts be as free from uncertainties as possible in order that the full extent of the contract may be readily ascertainable; otherwise the bonds may not bring their full value and the taxpayers will suffer.\\nThe act under which these bonds were issued provides that such bonds \\\"shall mature not later than thirty (30) years from their date and shall be payable at such time or times as may be deemed most expedient by the Commissioners Court of Jefferson County\\\"; whereas Article 720 provides that the bonds therein referred to \\\"shall run not exceeding forty years, and may be redeemable at the pleasure of the county at any time after five years after the issuance of the bonds, or after any period not exceeding ten years, which may be fixed by the commissioners court.\\\" An examination of the two statutes will disclose that the Legislature in the enactment of the statute under which these bonds were issued conferred on the Commissioners' Court full and unlimited power to make the bonds payable at such time or times as may be deemed expedient by the Commissioners' Court not later than thirty years from their date, whereas no such unlimited authority was granted to Commissioners' Courts under the provisions of Article 720. The Legislature, by the enactment of' Article 720, specifically withheld from Commissioners' Courts the power to issue bonds of the kind therein referred to that could not be redeemed or paid off at any time after ten years after their issuance. In our opinion there is such conflict between the two provisions that we would not be justified in holding that the provisions of Article 720 are applicable to the bonds issued under the act here under consideration.\\nIt is true that Article 720 relates to the time when the bonds may be redeemed, whereas the act under consideration relates to the time when the bonds shall be payable, but in our opinion there is no essential difference in the subjects dealt with in so far as the question here under consideration is involved. To redeem and to pay sometimes mean the same thing, and in this instance the right of redemption provided for in Article 720 is merely an option to pay the bonds. The method of redemption contemplated by the statute was by payment. Consequently when the Legislature, by the enactment of Article 720, fixed a date after which the bonds there referred to could be redeemed, it fixed a date when such bonds could be paid.\\nWe hold that the bonds sought to be refunded in this instance are not redeemable at this time.\\nNo. A-103.\\nThe bonds involved in cause No. A \\u2014 103 were issued by Jefferson County in 1937 under the provisions of Vernon's Ann.Civ.Stats. Arts. 752a to 752i, incl., Acts 1926, 39th Leg., 1st C.S., p. 23, ch. 16. The only pertinent section of that act with reference to the issuance and maturity of the bonds therein provided for is Article 752i, which reads as follows :\\n\\\"Such bonds shall mature not later than thirty years from their date, except as herein otherwise provided; they shall be issued in such denominations, and payable at such ti-me or times as may be deemed most expedient by the Commissioners' Court, and shall bear interest not to exceed five and one-half per cent per annum. The general laws relative to county bonds, not in conflict with the provisions of this Act, shall apply to the issuance, approval and certification, the registration, .the sale and payment of the bonds provided for in this Act.\\\"\\nIt will be seen that the act provides that \\\"such bonds shall mature not later than thirty years from their date\\\" and shall be \\\"payable at such time or times as may be deemed most expedient by the Commissioners' Court.\\\" For the reasons stated in discussing cause No. A \\u2014 101 this provision is in conflict with the provisions of Article 720, which provides that the bonds referred to therein shall run not exceeding forty years and may be redeemable at the pleasure of the county after five years from the issuance of the bonds. Since only such part of the general law rel\\u00e1ting to county bonds as was not in conflict with the provisions ox the act here under consideration was made applicable to the bonds here involved, the provisions of Article 720 are not applicable to bonds issued under the act here under consideration.\\nNo. A-100.\\nThe bonds involved in cause No. A-100 were issued in 1922 by Road District No. .1 of Jefferson County under the provisions of Chapter 2, Title 18, of Revised Statutes of 1911. At that time Article 632 of that chapter read in part as follows:\\n\\\"Such bonds shall mature not later than thirty years from their date, except as otherwise provided in Articles 637a and 637b hereof, with such options of redemption as may be fixed by the Commissioners court, or such bonds may be issued to mature serially in approximately equal portions every year for not exceeding thirty years.\\\" Acts 1917, 35th Leg., p. 461, ch. 203, \\u00a7 1.\\nArticle 633 of the same chapter read as follows:\\n\\\"The general laws of Texas relative to county bonds, not in conflict with the provisions of this subdivision of this chapter shall apply to the issuance, approval, registration, sale and payment of the bonds provided for in said provisions.\\\"\\nIt will be noted that Article 633 makes only such of the general laws relative to county bonds as are not in conflict with the provisions of Chapter 2, applicable to the bonds issued under the provisions of that chapter. The specific provision of Article 632 that the bonds issued under that chapter should have \\\"such options of redemption as may be fixed by the commissioners court\\\" is in direct conflict with the provisions of Article 611 of Chapter 1 of Title 18 of Revised Statutes of 1911, which make the bonds issued under that, chapter redeemable within five years after, their issuance, or after any period not exceeding ten years, which may be fixed by the Commissioners' Court. Article 632 gives the Commissioners' Court unlimited authority to fix the date after which the bonds there. referred to could be redeemed ; whereas Article 611 of Revised Statutes of 1911 withheld from the Commissioners' Court the authority to postpone the county's right to redeem the bonds there referred to for more than ten years after their issuance. Consequently it cannot be said that the provisions of said Article 611 found in Chapter 1 were by reference incorporated in and made applicable to bonds issued under Chapter 2.\\nThe act under which these bonds were originally issued was held unconstitutional and invalid in the case of Browning v. Hooper, 269 U.S. 396, 46 S.Ct. 141, 70 L.Ed. 330. Thereafter the Legislature of this State passed validating acts which validated the bonds here involved. See Acts 1926, 39th Leg., G.L., 1st C.S., p. 33, ch. 17; Acts 1926, 39th Leg., Sp.Laws, 1st C.S., p. 1025, ch. 358. It is not necessary to discuss the terms of the validating act. It is sufficient to say that the validating acts contain nothing to indicate that it was the intention of the Legislature to make the provisions of Article 611 applicable to such bonds. Consequently the bonds sought to be refunded in this instance are not redeemable at this time.\\nNo. A-102.\\nChapter 163 of the Acts of 1931, Reg. Sess., 42nd Leg., p. 269 (now Art. 2368a, Vernon's Anno.Civ.Stats.) authorized the Commissioners' Court to issue refunding bonds to take up outstanding warrants. Accordingly Jefferson County issued bonds in the sum of $125,000 for that purpose. Jefferson County issued those bonds payable serially, no provision being made for their redemption at an earlier date. These are the bonds which Jefferson County now desires to refund by the issuance of new bonds.\\nThe act authorizing the issuance of these refunding bonds provided, in effect, that notice of the intention to refund such outstanding indebtedness should be published in a newspaper, and unless a protest was filed the Commissioners' Court could issue the bonds; but if as much as ten per cent, of the voters filed a protest, the matter should be submitted to an election as to whether the indebtedness should be refunded by the issuance of bonds. The act further provided:\\n\\\"The Commissioners' Court or governing body shall determine the time and the place or places of holding said election; and the manner of holding same shall be governed by the laws of the State regulating elections for the issuance of other county or city bonds under Chapters 1 and 2, Title 22, Revised Civil Statutes of 1925.\\\" \\u00a77.\\nThe mere fact that the act provided that the election to determine whether the bonds should be issued should be held in the manner prescribed for holding of elections for the issuance of other county bonds certainly is not broad enough to incorporate and make applicable the provisions of Article 720 which relate to the time of redemption of the bonds.\\nSaid act further provides:\\n\\\"The funding bonds hereby authorized shall be payable serially not exceeding forty years from the date thereof, unless the Commissioners' Court or, governing body affirmatively adjudge that the financial condition of such county or city will not permit, in such installments as will make the burden of taxation to support same, approximately uniform throughout the .term of said bond issue. Such bonds shall be executed and issued in the same manner now provided by law for the execution and issuance of bonds to refund outstanding county or city bonds.\\\"\\nIn view of the fact that the act so clearly authorizes the Commissioners' Court to fix the date for the payment of such bonds, we are likewise of the opinion that the provision that \\\"Such bonds shall be executed and issued in the same manner now provided by law for the execution and issuance of bonds to refund outstanding county or city bonds,\\\" is not sufficient to incorporate and make applicable thereto the provisions of Article 720 relating to the right to redeem the bonds prior to their maturity. .\\nIt is contended that the provisions of Article 752x, Vernon's Anno.Civ.Stats. (Acts 1929, 41st Leg., 2nd C.S., p. 149, ch. 74) are applicable to the bonds here under consideration, and particularly those involved in cause No. A-100. That article read in part as follows:\\n\\\"That the Commissioners' Courts of the several counties in Texas shall have authority to refund any Road Bonds that have been issued or 'that may hereafter be issued by authority of any law enacted pursuant to Section 52 of Article 3 of the Constitution of Texas, when such Road Bonds have been issued for and on behalf of a political subdivision or defined district or consolidated district in such county. Such refunding .bonds shall be made to mature serially over a period not exceeding forty years from their date, as may be determined by the Commissioners' Court, and they may be made to bear interest at the same or a lower rate than the original bonds which are being refunded.\\\"\\nThat article does authorize Commissioners' Courts to refund any road bonds previously issued, or that may be thereafter issued, by any road district. But the only reasonable construction to be placed thereon is that it was intended to authorize the Commissioners' Court to issue refunding bonds for the Road District when the old bonds sought to be refunded were then redeemable, or when they could be redeemed with the consent of the owner thereof. If it was intended thereby to alter bonds previously issued and Isold so as to make them redeemable contrary to their terms as construed in the light of - the -statutes as they existed at the'time the bonds were issued and sold, and without the consent of the owner thereof, then the statute would be void as impairing the obligation of an existing contract. See Article I, Section 16, of the Constitution, Vernon's Ann.St. We think the only purpose of this act was to make it clear that the Commissioners' Court was the proper authority to issue the refunding bonds for the Road District where the bonds sought to be refunded were otherwise redeemable.\\nWe are of the opinion that none of the bonds sought to be refunded are redeemable at this time, and consequently the Attorney General properly refused to approve the issuance of the new bonds.\\nAll four applications for writs of mandamus are retused.\"}"
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+"{\"id\": \"10200279\", \"name\": \"EL PASO BUILDING & CONSTRUCTION TRADES COUNCIL v. TEXAS HIGHWAY COMMISSION et al.\", \"name_abbreviation\": \"El Paso Building & Construction Trades Council v. Texas Highway Commission\", \"decision_date\": \"1950-05-17\", \"docket_number\": \"No. .9905\", \"first_page\": \"533\", \"last_page\": \"539\", \"citations\": \"231 S.W.2d 533\", \"volume\": \"231\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:40:52.981150+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"EL PASO BUILDING & CONSTRUCTION TRADES COUNCIL v. TEXAS HIGHWAY COMMISSION et al.\", \"head_matter\": \"EL PASO BUILDING & CONSTRUCTION TRADES COUNCIL v. TEXAS HIGHWAY COMMISSION et al.\\nNo. 9905.\\nCourt of Civil Appeals of Texas. Austin.\\nMay 17, 1950.\\nRehearing Denied June 7, 1950.\\nMullinax, Wells & Ball, L.N.D. Wells, Jr., Dallas, Creekmore Fath, Austin, for appellant.\\nPrice Daniel, Attorney General, William S. Lott, Ned McDaniel, Clinton Foshee, Assistant Attorneys General, for appellees.\", \"word_count\": \"3587\", \"char_count\": \"21413\", \"text\": \"ARCHER, Chief Justice.\\nAppellant, labor union, brought suit in the 53rd District Court of Travis County against the Texas Highway Commission, the individual members thereof, and the State Highway Engineer, seeking a declaratory judgment that defendants' prevailing wage rate determination in and for El Paso County was substandard, unlawful, and void, and further seeking a mandatory injunction requiring defendants to reconsider and redetermine prevailing wage rates in the El Paso locality as required by Article 5159a, Vernon's Ann. Civ. St.\\nTemporary restraining order was issued prohibiting execution of contracts for construction of certain highway projects in the El Paso locality, unless such contracts required payment of the true and actually prevailing rate of wages in the El Paso locality.\\nDefendants thereafter filed plea in abatement and motion to dismiss, and, subject thereto, exceptions and answer.\\nThe trial court, after hearing evidence on plaintiff's application for temporary injunction, granted defendants' oral motion for judgment and rendered judgment denying temporary injunction, sustaining defendants' plea in abatement, and dismissing the suit.\\nThis appeal is based on five points assigned as error by the plaintiff, but may be considered and discussed as two points.\\nThe first point complains of the error of the trial court in sustaining the plea in abatement, on the ground that plaintiff did not have a justiciable interest and standing to bring and maintain the suit.\\nArticle 5159a, V.A.C.S., is long and we do not embody it herein, but it provides that:\\n\\\"Sec. 1. Not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the work is performed, .\\n\\\"Sec. 2. The public body awarding any contract for public work on behalf of the State, or on behalf of any county, city and county, city, town, district or other political subdivision thereof, or otherwise undertaking any public work, shall ascertain the general prevailing rate of per diem wages in the locality in which the work is to be performed for each craft or type of workman or mechanic needed to execute the contract, .\\n\\\"Sec. 3. The contractor and each subcontractor shall keep, or cause to be kept, an accurate record showing the names and occupations of all laborers, workmen and mechanics employed by him, in connection with the said public work, and showing also the actual per diem wages paid to each of such workers, which record shall be open at all reasonable hours to the inspection of the public body awarding the contract, its officers and agents.\\n\\\"Sec. 4. Any construction or repair work done under contract, and paid for in whole or in part out of public funds, other than work done directly by any public utility company pursuant to order of the Railroad Commission or other public authority, whether or not done under public supervision or direction, or paid for wholly or in part out of public funds, shall be held to be 'public works' within the meaning of this Act. The term 'locality in which the work is performed' shall be held to mean the county, city and county, city, town, district or other political subdivision of this State in which the building, highway, road, excavation, or other structure, project, development or improvement is situated in all cases in which the contract is awarded by the State, or any public body thereof, and shall be held to mean the limits of the county, city and county, city, town, district or other political subdivisions on whose behalf the contract is awarded in all other cases. The term 'general prevailing rate of per diem wages' shall be the rate determined upon as such rate by the public body awarding the contract, or authorizing the work, whose decision in the matter shall be final. Nothing in this Act, however, shall be construed to prohibit the payment to any laborer, workman or mechanic employed on any public work as aforesaid of more than the said general prevailing rate of wages.\\n\\n\\\"Sec. 7. The fact that there is no adequate law protecting laborers, workmen and mechanics engaged in doing and performing work on public works in Texas and its political subdivisions, and the further fact that many contractors are taking advantage of the present industrial and economic condition to beat down wages to a level far below that required to maintain a laborer, workman or mechanic in reasonable circumstances, and the further fact that this condition has created a social problem demanding the immediate attention of the legislative department of our State, create an emergency and an imperative public necessity that the Constitutional Rule requiring that bills be read on three several days be suspended, and said Rule is hereby suspended, and this Act shall be in full force and effect from and after its passage, and it is so enacted.\\\"\\nThe plaintiff alleges that it is party to written collective bargaining contracts or oral wage agreements with 93 contractors and subcontractors employing 2,470 workers in the contract construction industry in the El Paso locality. These employers pay rates ranging from 95\\u2021 to $2.50 per hour, depending on the craft classification, and are under written contract or oral agreement to pay not less than these rates. Also, as the mouthpiece of the laboring man in this industry in the El Paso locality, has intense interest in the preservation and improvement of wage standards. Indeed, the very purpose for which plaintiff was organized, its very reason for existing, is to preserve and protect the wage standards and working conditions of laboring men in this locality.\\nAs is to be noted, Section 2 requires that the public body awarding any contract for public work to \\\"ascertain the general prevailing rate of per diem wages in the locality for each Craft or type of workman or mechanic needed,\\\" and that such wage rate be specified in the call for bids.\\nThe Highway Commission in 1945 declared that the prevailing wage rate on highway construction in El Paso locality to be from 45\\u215c to $1.37\\u00bd per hour, and all contracts so let contained the wage determinations as above.\\nIn the fall of 1949 the Commission let a contract in connection with the Cotton Avenue Overpass in El Paso, and fixed the wage scale at 45\\u215d\\u215e to $1.37\\u00bd per hour, which, upon protest by the Union, resulted in a labor dispute, and picketing developed. Subsequently, the prevailing rates were raised to 75\\u2021 to $1.65. The Union continued to protest these rates as not being the true prevailing rates.\\nIn December 1949 the Commission invited bids on certain public work called \\\"Main Street Overpass,\\\" to be constructed in the City of El Paso, Texas, and in the notice stated that it was a public works project as defined by House Bill No. 54 of the 43rd Legislature, Vernon's Ann.Civ.St. art. 5159a, and House Bill No. 115 of the 44th Legislature, Vernon's Ann.P.C. art. 1580, and as such was subject to the provisions of said bills, and that the wage scale had been ascertained and the rates prevailing in the locality in which the work was to be done. The general rate of per diem wages was declared to be from 45^ to $1.37 per hour. On January 3, 1950, the plaintiff by letter protested to the Commission the failure to determine the actual prevailing wage rates in the locality where the Main Street Overpass was to be constructed. On January 6, 1950, the Commission advised the plaintiffs attorneys by wire that a hearing would be had on January 26, 1950. The hearing was had and subsequently the Commission declared the general prevailing wage rate per diem in said locality to be from 75\\u2021 to $1.65 per hour.\\nThe institution of this cause followed and the plaintiff alleged the wage rate declared by defendants was not the prevailing rate within the meaning of Article 5159a, V.A. C.S.; that the determination has no basis in fact; that the general prevailing wage rate was from at least 85\\u2021 to $2.25 per hour; that the said wage rate as determined was as abuse of discretion and unlawful and void, because (1) a single prevailing wage rate determination covered a great number of cities, counties and political subdivisions, including the locality in issue, and did not make a separate and independent determination for each locality as provided in Section 4; (2) that the determination was not based on facts and without relation to wages actually prevailing in El Paso locality; (3) that the defendants ignored data that was relevant, to-wit: the wage determination by the City of El Paso Commissioners Court of El Paso County, the Secretary of Labor, and every other public agency which lets contracts for public work in that locality ; the' rates presently being paid on highway underpass and bridge construction in the .locality; current data available from the Texas Employment Commission; and affidavits from contract construction employers in the El Paso locality, which indicate that three-fourths of the persons employed in construction industry are now actually receiving wages of from ten cents to fifty cents per hour in excess of the Commission's determination.\\nA temporary restraining order was made by the trial court and hearing.fixed, and upon such hearing the court had before it the pleadings, with exhibits attached, and heard the testimony of the witnesses who testified, and upon the mlose of the plaintiff's case and before the defendants had. offered any direct testimony, the defendants filed their motion for judgment, on the grounds that the plaintiff in the then state of the record had not discharged its burden of proving its case. The court denied the application for a temporary injunction and sustained the defendants' plea in abatement, and dismissed the cause.\\nAs has been indicated above, the right of the plaintiff to bring and maintain this suit is the prime question to be determined by this court. If the plaintiff did not have a justiciable interest and standing to bring and maintain the suit, there was no necessity for the trial court to have refused the temporary injunction, since there were no proper parties before the court, and the order \\\"of dismissal would have effectively disposed of the case.\\nThe purpose of the enactment of the law was for the benefit of labor and to prevent the beating down of wages to a level far below that required to maintain a laborer, workman or mechanic in reasonable circumstances.\\nWe believe that the plaintiff, El Paso Building and Construction Trades Council, seeking to be the mouthpiece for union labor in the El Paso locality, has a sufficient interest in the subject matter to enable it to institute and maintain the proceedings in the instant case.\\n\\\"We think the intention is clearly apparent from the terms of the contract, relating to the rate and scale of wages to be paid, that such provisions were included for the benefit and protection of the laborers employed in constructing the building. This, construction is further fortified by the fact, that the United States Department of Labor was a party to the agreement. 'The purpose of the Department of Labor shall be to foster, promote, and develop the welfare of the wage earners of the United States, to improve their working conditions, and to advance their opportunities for profitable employment.' U.S.C.A., title 5, chap. 11, Department of Labor, \\u00a7 611.\\\" Hearn v. Ralph Sollitt & Sons Const. Co., Tex.Civ.App., 93 S.W.2d 551, 556.\\nWithout the right to bring and maintain the suit on behalf of labor the statute would be ineffectual in its requirement that the public body 'ascertain the prevailing rate, and that such body: in the letting of contracts could ignore such duty at its discre- . tion; this it cannot do. Southern Prison Co. v. Rennels, Tex.Civ.App., 110 S.W.2d 606, 607. '\\nIn Austin Bridge Co. v. Teague, Tex.Civ.App., 149 S.W.2d 674, at page 676 (reversed on other grounds in 137 Tex. 119,-152 S.W.2d 1091), this court stated that: \\\"Appellants concede that the Act is primarily for the protection and benefit of the laborers and workmen in securing to them payment of the minimum wages prescribed.\\\"\\nIn Iiearn v. Ralph Sollitt & Sons Const.' Co., supra, the court said: \\\"We think.the intention is clearly apparent from the terms of the contract, relating to the rate and scale of wages to- be paid, that such provisions were included for the benefit and protection of the laborers employed in constructing the building. \\\"\\nThe issue of the right of the .Union to maintain, this suit has not previously been. presented to and determined by one of our courts; the subject has had consideration by courts of some of the other states.\\nIn Denver Bldg. & Construction Trades Council v. Vail, 103 Colo. 364, 86 P.2d 267, 269, the Colorado Supreme Court held: \\\"It is conceded that the Trades Council seeks to be the mouthpiece for union labor in the particular lines of work to be involved in the proposed construction. No single workman who hopes or desires to be employed on one of these projects could be expected to go to the trouble and expense of bringing an action individually. In the light of the practical situation, and in view of the obvious attempt of the General Assembly we hold that the Trades Council has a sufficient interest in the subject matter to enable it to institute the proceedings in the case at bar.\\\"\\nIn Southern Prison Co. v. Rennels, Tex. Civ.App., 110 S.W.2d 606, 607, the court held that the- statute is especially-to protect workmen from being required, if they accept employment, to work for less than the prevailing wage paid in the county for the same class of work, and that (the public body) was not authorized to ignore such power and duty at its discretion to determine the prevailing wage.\\nIn the decision of the U. S. Supreme Court in United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, at page 385 if., 42 S.Ct. 570, at page 574 ff., 66 L. Ed. 975, 27 A.L.R. 762, it was held: \\\"Undoubtedly at common law an unincorporated association of persons was not recognized as having any other character than a partnership in whatever was done, and it could only sue or be sued in the names of its members. But the growth and necessities of these great labor organizations have brought affirmative legal recognition' of their existence and usefulness .and provisions for their protection, which their members have found necessary. They have' been given distinct and separate representation and the right to appear to represent- union interests in statutory arbi-trations, and before official labor boards. More than this, equitable procedure adapting itself to modern needs has grown to- recognize the need of representation by one person of many, too numerous to sue or to be sued See U. S. v. White, 1944, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542, 152 A.L.R. 1202.\\nIn Construction and General Labor Union v. Stephenson, Tex. Sup., 225 S.W.2d 958, 961, it was held: \\\"The Court of Civil Appeals undertook to distinguish the Swing case, supra, (Amer. Fed. of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855) citing Carpenters & Joiners Union of America, Local No. 213 v. Ritter's Cafe, 315 U.S. 722, 62 S.Ct. 807, 86 L.Ed. 1143, on the ground that there was no 'interdepend-ence of economic interest' between the petitioners and the Stephenson's employees, emphasizing the facts that house moving is a specialized business, that there was no house movers' union for Stephenson's employees to join, and that Stephenson's employees, performed .a variety of tasks, many of which were not performed by any mem- bers of the picketing unions. Conceding all-of this to be true, still we think that the undisputed facts compel the conclusion that a relation existed between the work which Stephenson's employees were doing; at the time of the picketing and the work which the union members were accustomed to perform which would give them a real and substantial economic interest in the work on Stephenson's job. The undisputed evidence shows that the work of erecting the steel trusses was work which members of the iron workers' union were accustomed to do. Other work being done in the erection of the building came within the tasks usually performed by members of the carpenters' and laborers' unions. Moreover, union members were employed by the county on the same job and had to work alongside of Stephenson's employees. We believe, therefore, that it must be concluded that the unions had a legitimate concern with the work done by Stephenson's employees, and that therefore the injunction cannot be sustained on the basis of the absence of such concern.\\\"\\nFor an analogy only we wish to call attention to the opinion of the Supreme Court in Hexter Title and Abstract Co. v. Grievance Committee, 142 Tex. 506, 179 S.W.2d 946, 948, 157 A.L.R. 268, where it was held that a grievance committee of the State Bar of Texas for the Fifth Congressional District \\\"has an interest in the subject of the suit peculiar to it\\\" sufficient for an injunction to enjoin the illegal practice of law.\\nIn a very well prepared brief by the Attorney General in behalf of the defendants, we have been cited a number of cases, but which may be distinguished from this case.\\nIn Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 877, 84 L.Ed. 1108, the court said: \\\"This Act's purpose was to impose obligations upon those favored with Government business and to obviate the possibility that any part of our tremendous national expenditures would go to forces tending to depress wages and purchasing power and offending fair social standards of employment. As stated in the Report of the House Committee on the Judiciary on the Bill, 'The object of the bill is to require persons having contracts with the Government to conform to certain labor conditions in the performance of the contracts and thus to eliminate the practice under which the Government is compelled to deal with sweat shops.\\\"\\nThe court further stated: \\\"Respondents have no standing in court to enforce that responsibility or to represent the public's interest in the Secretary's compliance with the Act. That respondents sought to vindicate such a public right or interest is made apparent both by their prayer that the determination be suspended as to the entire steel industry and by the extent of the injunction granted.\\\"\\nAnd it appears that the decision is based on \\\"the impropriety of judicial interpretations of law at the instance of those who show no more than a mere possible injury to the public.\\\"\\nWe believe that the plaintiff in the present case was seeking relief from the action of the public body concerning a matter in which it had a real and legitimate concern and was not seeking to vindicate a public right, and one in which it had no more than a mere possible injury to the public.\\nWe believe that the cases cited are ones in which the plaintiffs sought to interfere with a public right, and were not cases in which the individuals were threatened with some damages peculiar to them, and that individual and personal rights gave them a personal interest in the subject matter. Holt & Co. v. Wheeler Co., Tex.Civ.App., 235 S.W. 226; San Patricio Co. v. Maxwell, Tex.Civ.App., 56 S.W.2d 295; Wilson v. Pierce, Tex.Civ.App., 123 S.W.2d 695.\\nThe trial court was in error in sustaining the plea in abatement.\\nAppellees have practically, although not actually, staked their entire case upon the point just determined against them, but since the case is to be reversed and further proceedings are quite likely we will, for guidance of the trial court, briefly express our views upon other questions which, as indicated from the record, will arise.\\nThe statute 5159a, supra, provides that the decision of the public body in determining the prevailing rate of per diem wages shall be \\\"final.\\\" We do not construe this provision as exempting the action of the Ccmmission in this regard from judicial review.\\nThe general rule is that the right of appeal to the courts from an order of an administrative board will be implied where such right is not expressly conferred by statute. English Freight Co. v. Knox, Tex.Civ.App., 180 S.W.2d 633 (Austin CCA. Writ Ref. W.O.M.), and cases therein cited.\\nWe are further of the opinion that the substantial evidence rule as applied to orders of the Railroad Commission is the standard by which the validity of order in suit must be measured. See Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424; Hawkins v. Texas Co., 146 Tex. 511, 209 S.W.2d 338.\\nSince the evidence heard below was only ex parte we cannot know what it will show when fully developed. We do say, however, that if the evidence is substantially the same upon further hearing as it now is, that a temporary injunction preventing the letting of the contract should be granted.\\nThe judgment of the trial court is reversed and this cause remanded for further proceedings not inconsistent with the views expressed in this opinion.\\nReversed and remanded.\"}"
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diff --git a/tex/10203072.json b/tex/10203072.json
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--- /dev/null
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+"{\"id\": \"10203072\", \"name\": \"FIELDS v. STATE\", \"name_abbreviation\": \"Fields v. State\", \"decision_date\": \"1949-02-09\", \"docket_number\": \"No. 24261\", \"first_page\": \"462\", \"last_page\": \"462\", \"citations\": \"218 S.W.2d 462\", \"volume\": \"218\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T00:07:57.544725+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FIELDS v. STATE.\", \"head_matter\": \"FIELDS v. STATE.\\nNo. 24261.\\nCourt of Criminal Appeals of Texas.\\nFeb. 9, 1949.\\nOn Motion to Reinstate Appeal March 16, 1949.\\nNo appearance for appellant.\\nErnest S. Goens, State\\u2019s Atty., of Austin, for the State.\", \"word_count\": \"353\", \"char_count\": \"2158\", \"text\": \"HAWKINS, Presiding Judge.\\nConviction is for the transportation of intoxicating liquor in dry area, punishment assessed being a fine of $500 and 30 days in the county jail.\\nThe record contains no notice of appeal as is required by Art. 827, C.C.P.\\nThe appeal is dismissed.\\nOn Motion to Reinstate Appeal.\\nBEAUCHAMP, Judge.\\nAppellant has filed herein supplemental transcript correcting the record, which failed to contain a notice of appeal entered of record. Accordingly, his motion to reinstate the appeal is granted.\\nWe are asked to reverse the case on the ground that the complaint was not sworn to or certified by any person. The record does not sustain this contention.\\nThe other ground presents the contention that there is a variance between the complaint and information. The complaint, signed and sworn to by J. T. Morgan on the 7th day of May, 1948, charges the unlawful transportation of \\\"whisky and wine.\\\" The information filed by the district attorney contains two counts, one charging transportation of an alcoholic beverage, \\\"to-wit: Forty-Eight (48) Four-Fifths quarts of wine.\\\" The second count sets out that appellant did unlawfully transport \\\"an alcoholic beverage to-wit, Twenty-Four (24) pints of whiskey.\\\" Together the two counts in the information describe the same thing that is alleged in the complaint. In addition the exact amounts are specified and it is further stated that it was on \\\"State Highway No. 180,\\\" in Borden County, whereas the complaint only states that it was in Borden County.\\nThe pleading is awkward and subject to criticism, but we are unable to find a conflict. We do not think there is authority for sustaining appellant's contention in this respect. *\\nThe court's charge further confuses the issues but no complaint was lodged against it and, consequently, that matter is not before us for consideration.\\nThe case is now considered on its merits and the judgment of the trial court is affirmed.\"}"
\ No newline at end of file
diff --git a/tex/10203116.json b/tex/10203116.json
new file mode 100644
index 0000000000000000000000000000000000000000..3d0ad5e791be190cda2b7a7c97bf6bb21e26714a
--- /dev/null
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@@ -0,0 +1 @@
+"{\"id\": \"10203116\", \"name\": \"Arnulfo AGUIRRE, Appellant, v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Aguirre v. State\", \"decision_date\": \"1954-10-20\", \"docket_number\": \"No. 27090\", \"first_page\": \"819\", \"last_page\": \"819\", \"citations\": \"271 S.W.2d 819\", \"volume\": \"271\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T20:52:35.655363+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Arnulfo AGUIRRE, Appellant, v. The STATE of Texas, Appellee.\", \"head_matter\": \"Arnulfo AGUIRRE, Appellant, v. The STATE of Texas, Appellee.\\nNo. 27090.\\nCourt of Criminal Appeals of Texas.\\nOct. 20, 1954.\\nNo attorney on appeal for appellant.\\nWesley Dice, .State\\u2019s Atty., Austin, for the State.\", \"word_count\": \"101\", \"char_count\": \"613\", \"text\": \"WOODLEY, Judge.\\nThe conviction is for the offense of assault with intent to murder. Punishment was assessed at two years in the penitentiary.\\nThe record on appeal does not reflect that appellant has been sentenced in the trial court. Where no sentence has been pronounced in the trial court, this court is without jurisdiction to enter any order except to dismiss the appeal.\\nThe appeal is dismissed.\"}"
\ No newline at end of file
diff --git a/tex/10205081.json b/tex/10205081.json
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index 0000000000000000000000000000000000000000..66f04518085a7aedbf8343934bfdf27451a0ed1f
--- /dev/null
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@@ -0,0 +1 @@
+"{\"id\": \"10205081\", \"name\": \"HEARN et al. v. HANLON-BUCHANAN, Inc., et al.\", \"name_abbreviation\": \"Hearn v. Hanlon-Buchanan, Inc.\", \"decision_date\": \"1944-02-18\", \"docket_number\": \"No. 14612\", \"first_page\": \"364\", \"last_page\": \"371\", \"citations\": \"179 S.W.2d 364\", \"volume\": \"179\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T17:10:41.641282+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HEARN et al. v. HANLON-BUCHANAN, Inc., et al.\", \"head_matter\": \"HEARN et al. v. HANLON-BUCHANAN, Inc., et al.\\nNo. 14612.\\nCourt of Civil Appeals of Texas. Fort Worth.\\nFeb. 18, 1944.\\nRehearing Denied March 24, 1944.\\nSmoot & Smoot, of Wichita Falls, for appellants.\\nJames E. Allison, of Tulsa, Okl., and Rogers & Montgomery, of Wichita Falls, for appellees.\", \"word_count\": \"3745\", \"char_count\": \"22233\", \"text\": \"SPEER, Justice.\\nMark N. Hearn and Guydell Hearn and their respective wives, to whom we shall refer as plaintiffs, sued Hanlon-Buchanan, Inc., and Henaghan & Hanlon, Inc., as corporations, to which we shall refer as defendants, to recover $1500 represented by two drafts for $750 each.\\nPlaintiffs resided in California and defendants had their place of business and general offices at Tulsa, Oklahoma. Defendants held an oil and gas lease on a large body of land in Clay County, Texas, in which tract plaintiffs owned 150 acres. Defendants desired an extension of the lease and requested George C. Meredith, a broker at Jacksboro, Texas, to ascertain from the original lessor if the extension could be obtained. Lessor had died since executing the original lease and plaintiffs, her grandsons, had inherited 150 acres of the tract. Defendants sent Meredith a typewritten form of extension, such as they wanted. Meredith advised defendants that lessor was dead and the heirs would Have to be located and that he would investigate and advise defendants what he could find out before closing any renewal proposition. Meredith'employed G. C. Rounsaville, who lived near the land and knew plaintiffs, to contact them and' find out upon what terms the extension ' agreement could be had. Plaintiffs wrote Rounsaville they wanted $1500 for the extension. Rounsaville notified Meredith of plaintiffs' requirement of price and further that they would expect the extension agreement to obligate lessees to drill a well on the land to a depth similar to other production in the area. When Meredith saw plaintiffs' letter, he told Rounsaville, substantially, that they would send the extension agreement to plaintiffs and try to close it, but that he did not think defendants would pay that price for the extension. Defendants had previously sent to Meredith a form of extension they desired, for use by him when satisfactory arrangements had been made. Meredith drew two drafts on defendants through National Bank of Tulsa, Oklahoma, for $750 each, attached to them the prepared form of extension and gave them to Rounsaville for transmission to plaintiffs. The extension agreement was executed by plaintiffs, and delivered by them to a California bank for transmission, along with the two drafts. The \\\"Customer's Drafts\\\" had written across the top of each these words: \\\"For collection and approval of extension agreement attached by James E. Allison on the Laura Newton Lease, T. E. & L. Sur. Nos. 2673 and 2674.\\\" The drafts were drawn on a form used by First National Bank, Jacksboro, Texas, and one of which was payable to each of the plaintiffs in the sum of $750.00. Both drafts were: \\\"To Han-lon-Buchanan, Inc., Henaghan & Hanlon, Inc., National Bank of Tulsa, Tulsa, Oklahoma,\\\" and signed by George C. Meredith.\\nWhen the extension agreement, which accompanied the drafts, was sent to the drawee bank and defendants' attorney examined it, there had been written into it a provision which was not in the instrument when sent by defendants to Meredith. The added portion was so placed in the instrument as to break into the middle of another provision thereof. The following inside quotation is the part which had been added: \\\" said lease is extended as a single lease covering all of said lands as to all royalty and mineral interests for which the undersigned is empowered to join \\u2014 'it being understood that in the event of drilling the well will be drilled to the depth of the Shell pay on the Henderson lease' \\u2014 in such extension of said lease\\nThe added provision was referred to as being at the bottom of a page in the instrument, which indicates that it was added at that place because sufficient space was found there for it.\\nOn October 6, 1942, defendants wired plaintiffs that their price was too high and asked them to reduce it. On October 7, 1942, plaintiffs wired defendants, declining to reduce the price. On October 14, 1942, defendants wired plaintiffs, declining to accept the extension agreement and pay the drafts, and advised they were drilling on the land. It was stipulated that the extension agreement and drafts were returned to plaintiffs on October 13, 1942, and further stipulated that the well was completed as a producer and was flowing on November 13, 1942 (two days before the expiration of the original lease held by defendants).\\nTrial was to a jury. At the conclusion of taking testimony, defendants moved for an instructed verdict. The motion was denied. Upon special issues the verdict was in all respects favorable to plaintiffs. Motion for judgment non obstante veredicto was filed by defendants and upon notice, appearances and a hearing, judgment was entered for defendants notwithstanding the verdict. The plaintiffs have appealed.\\nAppropriate points complain of the action of the court in entering judgment non obstante veredicto, and in refusing to' enter judgment for plaintiffs on the verdict. These points are briefed together and we may so discuss them.\\nAs we view' this record, the controlling questions are: (1) The nature of Meredith's agency and (2) the extent of his authority to bind defendants thereunder.\\nFor purposes of this opinion it may be said that agencies as a rule are either general or special. When agency is established without a showing of its extent, it will be presumed to be general and not special. 2 Tex.Jur. 406, sect. 21. In the instant case the testimony without dispute shows the ex-tent of Meredith's agency and we need not pay further attention to general agencies.\\nPlaintiffs called Meredith to the witness stand and proved by him the nature of his employment and on cross-examination he detailed the manner of his employment and the particular duties he was to perform. This testimony was admissible. In some cases broad language has been. used to the effect that agency cannot be proved or disproved by the declarations of the alleged agent, but such expressions are applicable only to declarations made when not called to testify and are not applicable when the purported agent is called to give direct testimony upon the trial concerning such matters. Slaughter & Veal v. Schneider, Tex.Civ.App., 289 S.W. 414, writ dismissed. 2 Tex.Jur. 538, sect. 137.\\nMeredith testified in effect that he was a broker and oil operator; maintained an office at Jacksboro, Texas; had blocked acreage for defendants on special contracts before; had done other services for defendants when called upon, and was paid each time for such services as he performed. He had many clients in his busi ness; his custom in the past with defendants was, that if they wanted him to do something for them they would write him to that effect, and if it was to buy a lease for them they would tell him how much to pay; he had sometimes offered to sell leases to defendants and attached drafts thereto; some have been accepted, others have been rejected; he had never at any time determined for defendants what they would pay for property; his instructions as to prices have always come from either Mr. Boyles, the secretary, or Mr. Allison, the attorney; it was his custom in the past when he sent leases and drafts, to indicate that they were for inspection and approval of Mr. Allison; if Allison did not approve them, they did not go through.\\nMeredith said he had received a letter from defendants about procuring an extension of the lease involved, and in giving the substance of the correspondence he said defendants wanted to see how cheap they could get the extension. The letter referred to by the witness was in evidence. It was dated August 17, 1942, was signed by J. H. Boyles; in substance it advised Meredith of the early expiration of the Newton lease; and expressed doubt if they could save the lease before its expiration; the letter concluded with this language: \\\" Therefore, we must act promptly and I ask that you kindly see what you can do with Mrs. Newton (original lessor) without delay.\\\" On August 19, 1942, Meredith wrote defendants, acknowledging receipt of their letter, and advising that Mrs. Newton was dead; that he would get in touch with the heirs: \\\"I will comply with your letter and advise what can be done in regard to extension. I will advise you best that can be done before closing any renewal proposition.\\\" None of the foregoing facts was in any way contradicted. So it must be said that clearly Meredith's agency was special and not general.\\nIt is the settled rule that any one dealing with a special agent is bound at his peril to inquire of such agent's instructions \\u2014to ascertain the extent of such agent's authority. 2 Tex.Jur. 408, sect. 24.\\nIn 2 Tex.Jur. 406, sect. 22, this is said: \\\"A special agent cannot exercise authority in excess of his powers, which must be ascertained from the language used in conferring authority upon him.\\\" In the same section we note this language: \\\"If a special agent exceeds his authority, the principal is not bound.\\\" To these general rules may be added: He may also do such other things in connection with his assigned duties as are apparently necessary to accomplish the end sought by the principal through the agent. Great American Casualty Co. v. Eichelberger, Tex.Civ.App., 37 S.W.2d 1050, writ refused. The cited case thoroughly discusses general and special agencies and collates many authorities for the rule announced. It is held in the Eichelberger case, supra, that by apparent authority of the agent is meant such authority as a reasonably prudent person, using diligence, in view of the principal's conduct, would naturally suppose the agent to possess. It was also held there, that apparent authority is based on estoppel, and arises from one of two sources: (1) When the principal knowingly permits the agent to hold himself out as having the authority imputed to him, and (2) when the principal clothes the agent with the indicia of authority so as to lead a reasonably prudent man to believe he actually has such authority. The same rules are again announced in Wewerka v. Lantron, Tex.Civ.App., 174 S.W.2d 630, 632, writ dismissed, want of merit.\\nIn 2 C.J. 574, \\u00a7 214, this is said: \\\"The apparent power of an agent is to be determined by the acts of the principal and not by the acts of the agent; a principal is responsible for the acts of an agent within his apparent authority only where the principal himself, by his acts or conduct, has clothed the agent with the appearance of authority, and not where the agent's own conduct has created the apparent authority See also 2 C.J.S., Agency, \\u00a7 96.\\nWe find no testimony in this record which remotely tends to show that defendants did or said anything in connection with the drafts sued on, upon which plaintiffs could rely to estop defendants from asserting a lack of apparent authority in Meredith to agree with plaintiffs upon an amount to be paid for the extension agreement. There is no testimony before us tending to show that Meredith ever at any previous time did or was instructed by defendants to do such things as plaintiffs claim he did in this case. His original letter of instructions asking him to find out if an extension agreement could be had and his reply that he would do so and advise defendants of the result before closing any proposition, refute all implied general pow ers that might be imputed to him by virtue of a general agency; nothing appears to show these powers were ever enlarged. It is certain that plaintiffs were not misled to their detriment by anything defendants may have said or done because they never knew any part of it. When we consider the powers and duties actually enjoined upon Meredith, even if known to plaintiffs, his implied powers and duties to effectuate the purposes of his agency could not be said to lead any prudent man to believe he could fix the price defendant was to pay and obligate it to drill a well of specified depth in addition to simply ascertaining if an extension agreement could be obtained. See Wewerka v. Lantron, Tex.Civ.App., 174 S.W.2d 630, writ refused, want of merit, and National Cash Register Co. v. Wichita Frozen Food Lockers, Inc,, Tex. Civ.App., 172 S.W.2d 781, affirmed Tex. Sup., 176 S.W.2d 161.\\nIt is not shown that plaintiffs knew anything about Meredith's agency, such as it was; they did not know him, they dealt with Rounsaville, their former neighbor and friend. To avail plaintiffs of their plea of estoppel, they must show that some act or acts of defendants caused them to alter their situation to their detriment by a reliance thereon. Fenner & Beane v. Lincoln, Tex.Civ.App., 101 S.W.2d 305. In the last cited case, the court again discusses the principles of estoppel applicable to the apparent scope of a special agent's authority, especially when, as in this case, the complaining party knew nothing of the agency and its restrictions, between the defendant and the purported agent; in such circumstances, it is held that such acts of either the principal or agent, when unknown to the third party, may not be considered. Plaintiff recovered in that case, but the judgment was reversed and rendered by the appellate court.\\n[14] It may be conceded that an agent may employ a subagent and delegate to him matters of a ministerial nature requiring no act or discretion entrusted by the principal to the agent, but where, as in this case, it is \\\"obvious that when the agent (Meredith) himself has no authority to do the act in controversy (fix the price of the lease) he lacks authority to delegate the doing of it to some one else\\\". 2 Tex.Jur. 472, sect. 76.\\nIt is argued by plaintiffs that since Meredith had testified that defendants wanted him to see how cheap he could get the renewal, this furnished some evidence that there had been additional communications between him and defendants as to his authority, which plaintiffs had been unable to. procure. We also note that Meredith, in attempting to summarize what defendants, had asked him to do, said he had had no. communications from them except the extension agreement and \\\"a request to see what I could get them for.\\\" When we consider the actual language used in the correspondence, quoted in other parts of this opinion, we think the witness' short-hand! form of the meaning of such instructions are not unreasonable deductions from the language used. The contention of plaintiffs is no more than a surmise or suspicion that something was said and done, not disclosed by the testimony. It is also argued in effect that irrespective of who wrote the additional provision in the instrument obligating defendants to drill a well to a specified depth, defendants did not reject the purported renewal instrument because of that provision. While it is true defendants did not specifically object to the document because of that provision, yet it is reasonable to assume that the more onerous the conditions and provisions of a contract, the less attractive it is to the one upon whom the burden is imposed, and this naturally would affect the price to be paid.\\nUnder familiar rules of law in such cases as this, we must consider all testimony in its most favorable light to the one against whom a judgment non obstante veredicto has been entered. Therefore it must be conceded that Meredith wrote the extra provision in the instrument as testified to by Rounsaville, although Meredith denied it. A purported carbon copy of the original was introduced in evidence and it did not contain the controverted provision. If Meredith did so alter the original instrument (and it cannot be said that the alteration was immaterial), clearly its execution in its altered form was different from what it was when entrusted to Meredith by defendants, and all was unknown to-plaintiffs. The manner in which the alteration was made, in the middle of another sentence and provision, even though one did not detect that it had been written on a different typewriter, it occurs to us, was such as to put a person of ordinary care on inquiry as to why it appeared in that form. Certainly such alteration cannot be traced to defendants, for plaintiffs did not know Meredith nor that defendants had invoked his aid in the matter. To say the least of the situation, absent fraud and mutual mistake, the minds of plaintiffs and defendants did not meet on the proposed instrument. Wewerka v. Lantron, Tex. Civ.App., 174 S.W.2d 630, 633, writ refused, want of merit.\\nPlaintiffs argue here, in effect, that since agency of Meredith was admitted by defendants, and defendants having offered no testimony as to instructions given Meredith, it will be presumed that Meredith had all necessary authority to do whatever was necessary and proper for the performance of his agency in the matter, and this embraced Meredith's authority to agree on the price to be paid. They cite such cases as Birge-Forbes Co. v. St. Louis & S. F. R. Co., 53 Tex.Civ.App. 55, 115 S.W. 333, writ refused. In that opinion, however, the court announced the rule to be: \\\"Every agency, unless expressly limited, carries with it, as an incident to do whatever is necessary The italicized words by us make the difference in the rule there announced and in the case before us. The limitations put on Meredith's agency are undisputed in this record.\\nWe hold that this record is wholly void of any evidence of a general agency in Meredith, and that there are no facts or circumstances of probative value tending to show that Meredith could be said to be acting within the scope of his apparent or implied authority to agree with plaintiffs, if he did so agree, on the price to be paid for their extension agreement, and thereby bind defendants. All points raising these questions are overruled.\\nSeventh and eighth points complain of the judgment notwithstanding the verdict, especially applicable to the notations put on the drafts by Meredith when they were sent by Rounsaville to plaintiffs. For a better understanding, we repeat those notations: They were, \\\"For collection and approval of extension agreement attached by James E. Allison on the Laura Newton lease, T. E. & L. Sur. Nos. 2673 and 2674\\\". Meredith testified that his intention in putting that notation on the drafts was to enable James E. Allison to pass on the extension agreement and the amounts to be paid before acceptance by defendants. Plaintiffs' construction of the language was to the effect that the drafts and extension agreement were being sent to plaintiffs so that they could examine and approve the agreement and collect the $1500 they had offered to take for executing the instrument. The jury found in favor of plaintiffs' contention. The error assigned is that the court should not Lave disregarded the jury finding, supported as it was by the testimony of plaintiffs.\\nMuch is said in briefs of all parties pertaining to a proper grammatical construction of the language used. We do not think it necessary for us to make such an analysis of the language employed. As has been pointed out above, we must consider the testimony in its most favorable light to plaintiffs. This means that we must adopt plaintiffs' construction of the language used. Plaintiffs construe the drafts and endorsements thereon to mean James A. Allison, whom they knew to be defendants' general attorney, had drawn the drafts and attached the extension agreement, and that by this act the price of $1500 named by plaintiffs for the agreement, had been accepted. Under the undisputed testimony in this record, this construction and assumption by plaintiffs were from a misunderstanding of the true facts. Meredith, the special agent, had done the things that plaintiffs thought had been done by defendants. From plaintiffs' point of view their offer to accept $1500 for signing the agreement had been accepted by defendants. But not so; such acceptance as it was, was by Meredith. The undisputed evidence in the case shows that Meredith had no such authority to agree with plaintiffs on a price to be paid. There is nothing in the record to indicate that defendants accepted same or did any act to estop them from denying Meredith's authority to accept the offer. If we are correct in the conclusions expressed in the former part of this opinion, relating to Meredith's duty, power and authority as agent for defendants, then we think it becomes immaterial what kind of language was used by Meredith in his purported effort to accept plaintiffs' offer of sale and bind defendants. This he could not do under the facts of this case. The authorities above cited preclude the presumption, under the facts in this case, that Meredith had the apparent authority to fix the price or agree upon the price defendants would pay for the extension agreement. For the reasons stated, points seven and eight are overruled.\\nNinth point of error complains of the ruling of the court in excluding the testimony of plaintiffs as to the contents of a lost or destroyed letter, sent them by Rounsaville when he transmitted through plaintiffs' mother the extension agreement and two drafts sued on. In this we think there was no error. Rounsaville, the writer of the letter, was definitely shown by his own testimony not to be the agent of defendants in any respect, but that what he did was as a subagent or employee of Meredith. The bill of exception shows that by the terms of the lost letter, plaintiffs were apprised by Rounsaville that plaintiffs' offer to sign the renewal lease for $1500 had been accepted, and that'plaintiffs should execute the agreement and have their bank collect the money on the drafts. This would have meant that Rounsaville was purporting to act in lieu of defendants, in such acceptance. What we have already said relating to agency of defendants disposes of this question adversely to plaintiffs' contention.-\\nWe conclude that the judgment notwithstanding the jury verdict was proper and the judgment should be affirmed. It is so ordered that this be done.\"}"
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+"{\"id\": \"10218792\", \"name\": \"CLAYTON v. CHICAGO, R. I. & G. RY. CO. et al.\", \"name_abbreviation\": \"Clayton v. Chicago, R. I. & G. Ry. Co.\", \"decision_date\": \"1941-07-09\", \"docket_number\": \"No. 2364-7639\", \"first_page\": \"453\", \"last_page\": \"454\", \"citations\": \"154 S.W.2d 453\", \"volume\": \"154\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Commission of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T00:36:32.167249+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CLAYTON v. CHICAGO, R. I. & G. RY. CO. et al.\", \"head_matter\": \"CLAYTON v. CHICAGO, R. I. & G. RY. CO. et al.\\nNo. 2364-7639.\\nCommission of Appeals of Texas, Section A.\\nJuly 9, 1941.\\nL. D. Eakman, of Montague, and T. B. Coffield, of Bowie, for plaintiff in error.\\nBenson & Benson, of Bowie, and Jenkins Garrett, Walker, Smith & Shannon, and F. B. Walker, all of Fort Worth, for defendant in error.\", \"word_count\": \"1222\", \"char_count\": \"6329\", \"text\": \"GERMAN, Commissioner.\\nWhile Ocie Clayton was working as a sectionhand on a railroad, using a crowbar to pull spikes from the cross-ties, the bar, because of its defective condition, slipped and severely bruised the index finger on his left hand. He sued the railway company for damages. The trial court held that the plaintiff assumed the risk incident to his injury, and instructed a verdict for the defendant. The judgment was affirmed by the Court of Civil Appeals. 129 S.W.2d 693.\\nThe material facts are shown by plaintiff's own testimony, and are without any substantial dispute. The substance of his testimony, when reduced to a narrative form, is:\\n\\\"I am 20 years old. I was employed by the Chicago, Rock Island & Gulf Railway Company on October 23, 1938, as a laborer. I had been for several years prior to that time earning my living as a common laborer. I had never worked on a railroad before. When I went to work I was knocking rocks from under the rails with a foot adz. I had been working for the railroad company about ten days prior to that date. I had been working about two hours the day that I was injured. They were getting behind pulling spikes, and I was told by the straw boss to quit knocking rocks from under the rails and to begin pulling spikes. You pull spikes with a crowbar. A crowbar is about six feet long, one and one-half inches in diameter, and has a fork at the end like a claw hammer to set under the head of the spike when you pull spikes. I got a crowbar off the work car that had been placed there for the workmen. I didn't examine the crowbar when I picked it up. I was in a hurry. The boss was hurrying us. After they called me from knocking rocks from under the rails, I went to pull spikes, and I had pulled about a rail; about the length of a rail, and I came to a .spike that the bar wouldn't pull; I couldn't get it under it to hold and the straw boss drove the bar under the spike and we couldn't pull it and he told me to go on down the line, and I pulled the next two or three, and then I came to one and the bar slipped off and I mashed my finger. The assistant foreman tried to drive the bar under the head with a maul, but couldn't make it take hold and told me to go on and he would get another bar to pull that spike. I went on down the line pulling spikes. I had pulled two or three more when I got hurt. I was trying to pull another spike. The bar first caught on the spike where I got hurt. I was working with both hands. I am left-handed, and I throwed my weight on the bar and it slipped off and my weight went down and caught my hand between the bar and the tie-plate. The index finger on my left hand was injured. I had never used a crowbar to pull spikes before that morning. I was not given any instructions as to how to use it. The claws on the crowbar were worn smooth just like a worn-out hammer. It wouldn't hold the spike. The spike had to be up an inch or two before it would pull it. When I first put the bar under the spike it held, but when I put my weight on it, it fell. I had used the bar about twenty minutes before I was injured. I didn't examine the bar when I first got it, but noticed it wouldn't catch a spike head as it should, and on a spike it wouldn't pull. I did notice that it was worn and slick and wouldn't catch a spike like it ought to. Some of the spikes it would pull all right if the spikes were down like they should be it wouldn't pull them. I noticed it was in a worn, dilapidated condition at the time. I noticed that immediately. It worked pretty much on the same plan as a claw hammer, except the claw hammer isn't nearly so large. There is a heel immediately behind which forks and rests on the tie, and by putting weight on the upper end of the har the spikes are drawn from the tie. They didn't tell me how to pull spikes. Anyone would know how to pull them. I knew how to pull spikes. I didn't examine the crowbar closely when I first picked it up.\\\"\\nWe are of the opinion that the trial court and the Court of Civil Appeals correctly decided the case. It is conceded that the plaintiff at the time of his injury was engaged in interstate commerce, and that as a consequence the defense of assumed risk was available under Federal Employers' Liability Act. U.S.C.A., Title 45, sec. 54. From the evidence it is apparent that the crowbar was a rather simple tool, and that, while plaintiff had never used a crowbar before, yet, because of its simplicity, the method of using it to pull spikes was well known to plaintiff. It is also apparent that the defect in the tool was well known to the plaintiff. He may not have known that the tool was defective when he first picked it up, but he testified that he immediately discovered that it was worn smooth and, would not hold on a spike. He acquired all this information before he attempted to pull the spike where he was injured. While he did not anticipate that his finger would be mashed in the manner that it was by the bar slipping off the spike, he did know that the claws would slip off the spike if he placed his weight'on the other end of the bar. As a matter of common knowledge he must have known that if he put his weight on one end of the bar and the other end slipped off the spike, the bar would necessarily fall to the ground with great force, and that if his fingers were around the bar, they would be mashed. This was but a natural consequence that would necessarily result from facts well within his knowledge. Since he had full knowledge of the defect in the tool and of the danger incident to the use thereof, he must be held to have assumed the risk by continuing to use it. Galveston, H. & S. A. Ry. Co. v. Lempe, 59 Tex. 19; Texas & Pacific Ry. Co. v. French, 86 Tex. 96, 23 S.W. 642; Gulf, W. T. & P. R. Co. v. Smith, 37 Tex.Civ.App. 188, 83 S.W. 719, error refused; 39 C.J. 807, 810; 18 R.C.L. 683, 691.\\nThe judgment of the Court of Civil Appeals, which affirms the case, is affirmed.\\nOpinion adopted by the Supreme Court\"}"
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+"{\"id\": \"10221230\", \"name\": \"STONE v. CITY OF DALLAS\", \"name_abbreviation\": \"Stone v. City of Dallas\", \"decision_date\": \"1951-12-13\", \"docket_number\": \"No. 2995\", \"first_page\": \"937\", \"last_page\": \"944\", \"citations\": \"244 S.W.2d 937\", \"volume\": \"244\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T22:08:08.395588+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STONE v. CITY OF DALLAS.\", \"head_matter\": \"STONE v. CITY OF DALLAS.\\nNo. 2995.\\nCourt of Civil Appeals of Texas. Waco.\\nDec. 13, 1951.\\nRehearing Denied Jan. 10, 1952.\\nFinklea & Finklea, Dallas, for appellant.\\nH. P. Kucera, City Atty., H. Louis Nichols, Asst. City Atty., John C. Ford, Asst. City Atty., Dallas, for appellee.\", \"word_count\": \"4193\", \"char_count\": \"24247\", \"text\": \"TIREY, Justice.\\nThe City of Dallas, a home rule city, brought this suit in the Justice Court against appellant for delinquent taxes, interest and penalties in the sum of $100.45, due on personal property consisting of automobiles owned by appellant for the years 1930 to 1945, inclusive, save and except the years 1934, 1935, 1937 and 1944, inclusive. The assessments were on un-rendered personal property.\\nThe defendant answered to the effect that he was not the owner of an automobile on the first of January of the years 1930, 1931, 1933, 1936 and 1938. He prevailed in the Justice Court and the City of Dallas appealed to the County Court at Law No. 1 of Dallas County. The court overruled both appellant's and appellee's motions for instructed verdict, and the jury in its verdict found substantially that defendant did not own an automobile on January 1, 1930, 1931, 1933, 1936 and 1938; that defendant was not the same L. C. Stone listed on the city tax rolls for the years 1930 and 1931 ; that defendant was the same L. C. Stone listed on the city tax rolls for the year 1938. Appellant filed motion for judgment, which was overruled. Appellee filed motion for judgment non obstante veredicto for the amount of $100.45, and in the alternative for $41.41. The court overruled plaintiff's motion for judgment non obstante vere-dicto/ but granted plaintiff's motion for judgment based \\\"on the jury verdict and undisputed evidence\\\" to cover taxes, penalties and interest for the years 1939, 1940,, 1941, 1942, 1943 and 1945, in the amount of $41.41, together with legal interest and costs of suit. Plaintiff and defendant excepted to the judgment entered and thereafter seasonably filed motions for new trial, which were overruled, to which both plaintiff and defendant excepted, and defendant perfected his appeal to.the Dallas Court of Civil Appeals and the cause was transferred to our court by order of the Supreme Court.\\nAppellant assails the judgment of the court on seven points. Points 1, 2, 3 and 4 in effect assail the plan of the City of Dallas for assessing and collecting personal property ad valorem taxes on unrendered automobiles whose owners are residents of the City of Dallas on the ground that such plan is unlawful, arbitrary, discriminatory and a violation of Article VIII, Sec. 1 of the Constitution of Texas, Vernon's Ann.St., and the 14th Amendment to the United States Constitution, and that such system is not equal and uniform. These contentions are without merit and are overruled. A statement is necessary.\\nA judgment of $41.41 was entered against appellant for taxes (and includes penalties and interest) accruing on his automobiles for the years 1939, 1940, 1941, 1942, 1943 and 1945. Appellee in its brief says: \\\"The evidence, insofar as these years are concerned, is undisputed. The appellant admitted residing in the City of Dallas during th\\u00e1t period of time, he admitted owning an automobile on January 1st for each of those years, he further admitted that he did not render the automobile for taxes, and that he had never paid any taxes on automobiles of the years in question. In addition, he admitted that he had never appeared before the Board of Equalization to question the tax assessment made by the Tax Assessor on his automobile. Since the automobiles had not been rendered for taxation by the appellant as is required by the charter of the City of Dallas, the Tax Assessor was required to render such property for taxation and place such valuation thereon as he may deem to be just. In rendering' these automobiles for taxes, the Tax Assessor adhered to the following procedure. Each year he obtained from the County Tax Collector a list of automobiles which had been registered and licensed in Dallas County, and from this list he prepared a list, of automobiles and the owners thereof residing within the City limits of Dallas, and from this list a tax assessment roll on automobiles was prepared. The Tax Assessor then placed a valuation on these automobiles in accordance with a uniform method applied to all automobil'es on the tax roll. In determining this value, the evidence showed that the Tax Assessor used as a preliminary guide a book known as \\\"The Official Used Car Dealers Guide\\\", which listed the market value of various automobiles according to make, year, and model. Using these values as a guide, the Tax, Assessor then placed a value on each automobile according to its make, year, and model, such value not being the same value listed in the used car dealers' guide. According to the undisputed evidence, the Tax Assessor did not use the figure in the used car dealers' guide as the value of the automobile. (here we insert the exact words of the Assessor: \\\"We use the value in that book as a basis to arrive at a value and he takes, perhaps, SO per cent of that book value for the gross value for the assessing purposes and, then, we reduce that to an. assessable \\u2014 what we call the assessment value \\u2014 maybe, using <55 per cent of that.\\\") This value adopted by the Tax Assessor as the value of these automobiles was, in the opinion of the Tax Assessor, the reasonable value of such automobiles. After the assessment roll had then been prepared by the Tax Assessor, it was submitted to the Board of Equalization for its review. The Board of Equalization then issued notices and .conducted public hearings, and after having equalized the taxes, for each year in question, submitted the tax roll, to the -City Council for its approval and for the assessment of taxes'for each of the years in \\u2022 question. After appellant's taxes became delinquent, they were placed on the delinquent tax roll which was prepared each year in' the manner provided for by the charter of the City of Dallas and the Statutes of the State of Texas. The appellee introduced in evidence a certified copy of the delinquent tax roll insofar as it applied' to, the appellant, and also introduced in evidence certified copies of the current tax roll for each of the years in question. No evidence was offered by the appellant to show that his automobiles had been valued differently from other similar automobiles located in the City of Dallas, nor wa.s any evidence offered to show that appellant's automobiles were valued at more than their true market value in money. There is no evidence in the record which would indicate that the method used by the City of Dallas in rendering for taxes the appellant's automobiles resulted in any injury to the appellant. Nor was there any evidence introduced which would have shown that the appellant would have paid less taxes if another method of rendition had ibeen adopted by the 'City. '\\nThe foregoing statement is not challenged by appellant in his brief and we believe it present's an accurate summary of the controlling facts in this case.\\nAppellant testified in part: \\\"Q. Have they assessed your car for more than it is worth? A. Chances are, they have. Q. For which years ? A. I don't recall which years.\\\"\\nThe City of Dallas has been a home rule city since 1907. Section 189 ,of the City Charter provides: \\\"All property, real and personal, shall be rendered for taxation by the owner thereof or his agent, as provided by the laws of the State for the rendition of property for assessment by the County, insofar as applicable; It shall be the duty of the Assessor and Collector to value each and every item of the property so rendered in accordance with the fair market price thereof upon a basis of valuation to be applied alike to all taxpayers,\\nSection 187 of said Charter provides : \\\"The Assessor and Collector of taxes shall assess all property which for any cause has not been rendered, placing such valuation' thereon as he may deem just. If the owners of such property are unknown, such assessment may be made in the- name 'unknown'.\\\"\\nThe foregoing provisions were construed in the case of the City of Dallas v. Gulf, C. & S. F. Ry. Co., Tex.Civ.App., 1 S.W.2d 497. The court there held in effect that since the Railway Company did not render the property in question for taxation for any of the years in suit, the Assessor and Collector of such City had the power under the Charter provisions to render the same for taxes. This case was later reversed in Tex.Com.App., 16 S.W.2d 292 on a point not pertinent here.\\nSection 188 of the Charter provides: \\\"No irregularity in the time or manner of making or returning the City assessment rolls or the approval of such rolls shall invalidate any assessment.\\\"\\nSection 190 of the Charter provides: \\\"The said Board shall convene as near as practicable on the ISth day of June and continue its labors until its said work is complete, but not to continue longer than the 15th day of July following. It shall be the duty of the governing body, as soon as the assessment rolls are completed, to refer the same to the Board of Equalization, whose duty it shall ibe to equalize the taxes assessed on said rolls and to make all necessary correction and adjustment to that end;\\nSection 191 of the Charter provides in effect that any person aggrieved by any act of the Assessor and Collector of Taxes in making up the assessments or in the'valuation of property for taxing purposes shall have the privilege of making complaint to the Board of Equalization and to appeal to said Board for revision and correction of the matter upon which the complaint is based. In the case at bar appellant failed to perform any duty required of him by the City with reference to rendering- his automobile for taxes for the years in which he was adjudged to. have been in default.\\nSection 207 of the Charter provides, among other things, as follows: \\\" - and no irregularity in the manner of levying or assessing taxes shall invalidate the same unless it appears from, affirmative proof that such irregularity operated injuriously to the taxpayer attempting to avoid the payment of such tax.\\\"\\nWe think each of appellant's complaints have been answered adversely to him by the opinion in City of Longview v. Citizens National Bank, Tex.Civ.App., 294 S.W. 313, writ ref. on October 5, 1927, which makes this opinion of equal dignity with opinions of the Supreme Court \\u2014 See \\\"Notations on Applications for Writs of Error\\\" by Gordon Simpson, Texas, Bar Journal, December 1949. Needless to say that the charter provisions are controlling insofar as the Assessor and Collector of taxes by the City of Dallas is concerned, and since the charter of such city is an act of the legislature of the State of Texas, the appellant was charged with knowledge of the charter provisions and was bound to comply with the requirements of such charter provisions if he desired to contest the assessments made against him. Since the appellant was a resident of the City of Dallas and owned an automobile on January 1st. of the years that he was so taxed, as found by the judgment of the trial court, and since he wholly failed to comply with the provisions of the city charter of the City of Dallas, in that he failed to render his property for taxes as it was his duty to do, and thereafter failed to protest the assessments made against him, he is now precluded from so doing. The rule is that the decisions of taxing boards in the matter of valuations are quasi-judicial in their nature, and in the absence of fraud or other olbvious violations of the law, such decisions are not subject to collateral attack; nor will such valuations be set aside merely by the showing that same are in fact excessive. If a Board fairly and 'honestly endeavors to fix a just valuation for taxing purposes, a mistake on its part under such circumstances is not subject to review by the courts. See State v. Houser, 138 Tex. 28, 156 S.W.2d 968, points 3 and 6, at page-970 and cases there collated. See also opinion of this court in Tekell v. City of Cleburne, 176 S.W.2d 588. It is our view that appellant wholly failed to tender an issue to the effect that the taxing plan used by the City of Dallas in arriving at the value of defendant's automobile for the years for which judgment was rendered was arbitrary, discriminatory and not uniform, or that such plan violated any provision of our State or Federal Constitution, and wholly failed to show that the values placed thereon by the City were excessive, or that he had been injured by the plan used by the City of Dallas in assessing taxes. See Zachary v. City of Uvalde, Tex.Com.App., 42 S.W.2d 417; Smith v. City of Austin, Tex.Civ.App., 212 S.W.2d 947; Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282. Since appellant failed to point out wherein he had suffered any injury by virtue of the taxing plan used by the City, he cannot litigate a mere theory. See Lubbock Hotel Co. v. Lubbock Ind. School Dist., Tex.Civ.App., 85 S.W.2d 776; Druesdow v. Baker, Tex.Com.App., 229 S.W. 493; Gonzales v. State, Tex.Civ.App., 81 S.W.2d 180; Zachary v. City of Uvalde supra; Victory v. State, 138 Tex. 285, 158 S.W.2d 760.\\nAppellant's fifth point says in effect that the property was not sufficiently listed on the City's delinquent tax roll. There is no merit in this contention. The records show that the delinquent tax roll of personal property has a code designation of the type of property covered iby such a tax roll. This code designation is A/A and A/S. A similar designation of the property is found on the certified copy of the tax roll for the years 1930 and for the years 1940, 1941, 1942, 1943 and 1945 the property is described as a Dodge automobile. A witness for the City testified that the code designation A/A means an automobile that is assessed by the assessor and the code designation A/S means an automobile on the supplemental tax roll. This witness testified to the effect that the delinquent tax rolls show that the taxes were assessed on automobiles owned by the appellant. Plaintiff in its petition alleged that property covered by the tax is described as being personal property consisting of automobiles.\\nSection 205 of the City Charter provides as follows: \\\"In any suit by the City of Dallas for the collection of any delinquent tax where it shall appear that the description of any property in the City assessment rolls shall be insufficient to identify such property; the City shall have the right to set up in its pleading a good description of the property intended to be assessed, and to prove the same, and to have its judgment foreclosing its tax lien upon the same, and personal judgment against the owner, for such taxes, the same as if the property were fully described upon the assessment rolls.\\\"\\nSection 2 of art. 7328.1, Vernon's Ann. Civ.Stats. provides in part: \\\"Such form of petition, insofar as applicable, may be used in suits for the collection of delinquent taxes on personal property, and in any such suit, it shall be sufficient to describe such personal property in such general terms as automobiles , and no other or more particular description or designation \\u00bfhall be required as a prerequisite to a suit to obtain a personal judgment for taxes due upon personal property so described.\\\"\\nWe think it is obvious that under the provisions of the Statute and Sec. 205 of the City Charter aforesaid that the description of the property contained in the tax rolls and in plaintiff's petition is sufficient to support judgment against appellant for the delinquent personal property taxes.\\nAppellant's point 6 does not present any error to the judgment entered in the trial court against him. First of all, such judgment was for the taxes accrued against him for the years 1939', 1940, 1941, 1942, 1943 and 1945, and the evidence was without dispute that appellant lived in the City during each of the foregoing years and that he owned an automobile on January 1st of each year and that he did not render the same for taxes. We have previously discussed appellant's failure to- do his duty in this behalf and point 6 is overruled.\\nPoint 7 is to the effect that the court erred in taking judicial notice of the charter provisions of the City of Dallas for the reason that said charter was not introduced in evidence, nor was any proof made of the charter being filed with the Secretary of State of the State of Texas. There is no merit in this contention. It is the duty of the court to take judicial notice of the provisions of the charters of home rule cities. See art. 1174, Vernon's Ann.Civ. Stats.; also City of Dallas v. Megginson, Tex.Civ.App., 222 S.W.2d 349 (writ ref. n.r.e.) and cases there collated; Ex parte Farnsworth, 61 Tex.Cr.R. 342, 135 S.W. 538; City of Dallas v. Springer, Tex.Civ.App., 8 S.W.2d 772; City of Sweetwater v. Foster, Tex.Civ.App., 37 S.W.2d 799; Fuller v. State, 116 Tex.Cr.R. 310, 32 S.W.2d 358.\\nAppellee excepted to the judgment entered by the trial court for not awarding it an additional amount of $40.76, representing taxes, penalties and interest for the years 1930, 1931, 1933 and 1936, and has cross assigned error to this effect. Appellee says that since appellant had registered his automobiles in his name with the State Highway Department for a license, his mere statement to the jury that he did not remember owning such automobiles during such years is not sufficient to overcome his act of registering these automobiles in his name for the particular years aforesaid, and since he did not testify that the State registration records were false, there is no support in the evidence to sustain the court's refusal to render judgment in favor of the City for the $40.76 taxes, penalties and interest for the years 1930, 1931, 1933 and 1936. We sustain this cross assignment.\\nThe City introduced in evidence copy of its delinquent tax roll of personal property which showed the name of L. C. Stone for 1930, 1931, 1933 and 1936. The amount of delinquent taxes, penalties and interest for this period was shown to be the sum of $40.76. Appellee also tendered in evidence certified copy of the current tax rolls for the years 1930, 1931, 1933 and 1936 for the defendant Stone and it is without dispute that these taxes were never paid. But appellant says in effect that there is no basis for judgment entered against him in any event for the reason that the property for which taxes were sought to be collected for the years 1930,. 1931, 1933, 1936, 1938 and 1939 were not described on said certificate. We have previously discussed this matter and have overruled his contention in this behalf; however, defendant says further that since the jury found that he was not the same L. C. Stone listed on the tax rolls for the years 1930 and 1931, that in no event can the City recover against him for the taxes accrued for the years 1930 and 1931. We think there is no merit in this contention for the reasons hereinafter briefly stated.\\nAppellant testified that he lived at 5302 Phillips Street, the street address shown on the delinquent tax rolls in 1933 and 1936, but he did not recall whether he lived there in 1933, but admitted he lived there in 1936; that he had been living in Dallas since approximately 1930 and had been driving his automobile before he moved to Dallas; that he had owned automobiles off and on for a number of years. He did not specifically deny owning an automobile during the years 1930, 1931, 1933 and 1936, or on January 1st of those years, but his testimony was merely to the effect that he did not remember owning a car at that time. Art. 7326, Vernon's Ann.Civ.Stats., provides in part: \\\"All delinquent tax records of said county in any county where such suit is brought shall be prima facie evidence of the true and correct amount- of the taxes and costs due by the defendant or defendants in such suit, and the same or certified copies thereof shall be admissible in the trial of such suit as the evidence thereof.\\\" This provision of the statute has been sustained by our courts. See Victory v. State, supra. Sec. 6 of art. 7328.1, Vernon's Ann.Stats, provides that \\\"All of the provisions of this Act simplifying the collection of delinquent State and County taxes, are hereby made available for,- and when invoked shall be applied to, the collection of delinquent taxes of all municipal corporations and political subdivisions of this State or any county thereof, authorized to levy and collect taxes.\\\" See Corbett v. State, Tex.Civ.App., 153 S.W.2d 664, writ ref. worn. Since the City introduced in evidence certified copies of its delinquent tax rolls as well as certified copies of the current tax rolls for each of the years in question showing that the taxes had been assessed -against L. C. Stone for those years, such testimony made a prima facie case under the above provisions of the statute and the authorities just cited. Our view is that because oif the record made and the provisions of the foregoing statutes and the authorities just cited, the answers of the jury to the effect that Stone did not own an automobile on January 1, 1930, 1931, 1933 and 1936, have no support in the evidence and for such reasons the trial court should have disregarded the jury's answers to Special Issues 1, 2,-3, 4, 5 and 6, and should have granted the City's motion for judgment non obstante veredicto for taxes accruing for the years just above named. In Corbett v. State, supra [153 S.W.2d 667], we find this statement: \\\" it has been held that the presumption of a valid levy and assessment of taxes arising from the introduction of the delinquent tax records and the delinquent tax lists, under the provisions of said Articles 7326 and 7336, presupposes that the capacity to levy and assess taxes has been acquired as a result of the necessary election, and that all steps essential to the validity of the levy had been taken.\\\" City Crocker v. Santo Consolidated Ind. School Dist., Tex.Civ.App., 116 S.W.2d 750, writ dis. Section 207 of the charter of the City of Dallas among other things provides: \\\" and the assessment rolls shall be prima facie evidence of the facts stated in the said rolls and that all taxes assessed on such rolls have been regularly levied and assessed in accordance with the provisions of this charter amendment and of the law; and no irregularity in the manner of levying or assessing taxes shall invalidate the same unless it appears from affirmative proof that such irregularity operated injuriously to the taxpayer attempting to avoid the payment of such tax.\\\" See also City of Raymondville v. Harding, Tex.Civ.App., 40 S.W.2d 888, affirmed Tex.Com.App., 58 S.W.2d 55; Texas Land & Cattle Co. v. City of Forth Worth, Tex.Civ.App., 73 S.W.2d 860, (writ ref.\\u2014See \\\"Notations on Applications for Writs of Error\\\" aforesaid) ; Dill v. City of Rising Star, Tex.Com.App., 269 S.W. 769, opinion adopted by Supreme Cour.t; Victory v. State, supra; Freeman v. State, 199 S.W.2d 301.\\nWe have carefully reviewed the testimony of appellant and we think it is to the effect only that he does not remember whether or not he owned an automobile during the period of 1930, 1931, 1933 and 1936, being the years on which the court refused to grant the city's judgment for delinquent taxes. It is our view that such testimony under the authorities cited is insufficient to overcome the prima facie case made in the City's behalf by introducing into evidence the delinquent tax rolls as herein outlined, and in the absence of affirmative proof by the defendant. The City was entitled to recover judgment for the full amount of taxes shown on the delinquent tax rolls tendered by the City. Such we believe to be the holding in Corbett v. State, supra, and this holding has not been set aside by our Supreme Court. It follows that we think the trial court erred in not permitting the City to recover the additional amount of $40.76 for the years 1930, 1931, 1933 and 1936, and the judgment of the trial court in this behalf is reversed and rendered. The judgment of the trial court in all other respects is affirmed.\\nReversed and rendered in part; affirmed in part.\"}"
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+"{\"id\": \"10241561\", \"name\": \"FELL v. BAKER\", \"name_abbreviation\": \"Fell v. Baker\", \"decision_date\": \"1938-12-16\", \"docket_number\": \"No. 13843\", \"first_page\": \"746\", \"last_page\": \"752\", \"citations\": \"123 S.W.2d 746\", \"volume\": \"123\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T19:05:26.995512+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FELL v. BAKER.\", \"head_matter\": \"FELL v. BAKER.\\nNo. 13843.\\nCourt of Civil Appeals of Texas. Fort Worth.\\nDec. 16, 1938.\\nRehearing Denied Jan. 20, 1939.\\nT. R. Boone and Kearby Peery, both of Wichita Falls, for plaintiff in error.\\nCarrigan, Hoffman & Carrigan and James E. Prothro, all of Wichita Falls, for defendant in error.\", \"word_count\": \"4884\", \"char_count\": \"27549\", \"text\": \"DUNKLIN, Chief Justice.\\nThis was a suit by Mrs. Stella Baker in the statutory form of trespass to try title, for two tracts of land, one for 257.7 acres, and the other for 68\\u00bd acres, both situated in Wichita County, against A. H. Fell, who answered by general demurrer and a plea of not guilty. Those were the only pleadings of the parties.\\nPlaintiff deraigned title under the will of her deceased husband, T. F. Baker, which was duly probated. Actual and continued possession of her husband of the property, through tenants, for a number of years prior to his death, was also relied on to show a prima facie evidence of her title.\\nShe claimed title adversely to the defendant upon his alleged failure to carry out and perform the obligations and conditions of the following instrument, which she introduced in evidence:\\n\\\"Wichita Falls, Texas\\n\\\"March 6, 1937\\n\\\"Mr. A. H. Fell, Wichita Falls, Texas\\n\\\"Dear Sir: For myself individually and as Executrix of the Estate of T. F. Baker, deceased, I agree to convey to you by general warranty deed, subject to the terms and conditions hereof and upon the consideration hereinafter stated, the land and premises described in Exhibit 'A', attached hereto and made a part hereof:\\n\\\"As a consideration for the foregoing, you are to pay me for 'said land the sum of $6,442.50, in the following manner:\\n\\\"(a) Cash, $4,831.88; said sum to be paid to me upon the final consummation of this deal, but within the time hereinafter stipulated.\\n\\\"(b) The further sum of $1,310.62, evidenced by your note of this date in the amount of said sum and secured by a deed of trust lien upon the land and premises described in Exhibits 'A' and 'B', which are attached hereto and made a part hereof, and which said note is payable in two installments, the first of which is in the sum of $310.62, which shall be due and payable December 1, 1937, and the second installment in the sum of $1,000 payable on or before December 1, 1938; said note bearing- interest from date until due at the rate of six per centum per annum, and after the due date thereof the same shall bear ten per centum per annum until paid and further providing that if the installs ment of date due December 1, 1937, is not paid when due, then the owner or holder of said note may declare the entire debt at once due and payable, and further providing for ten per cent additional on the principal and interest as attorney's fees, if the same shall be placed in the hands of an attorney for collection or if the same shall be collected through the probate or bankruptcy court, or by any character of judicial proceeding.\\n\\\"(c) The further sum of $300, evidenced by your note of this date and payable to Louis H. Gould on or before December 1, 1937, with interest from date until due at the rate of six per centum per annum and thereafter at the rate of ten per centum per annum. In this connection, it is understood and agreed that said $300 evidences the commission of Louis H. Gould in connection with the sale of the property and premises described in Exhibit 'A'; and in this connection, it is further understood that I do not assume any responsibility whatever for the payment of said commission or the payment of said note but that the said Louis H. Gould shall look alone to the said A. H. Fell for the payment of said commission or for the payment of said note evidencing the same; and in this connection, it is further understood that the said Louis H. Gould does not have or claim any lien upon the premises described in Exhibits 'A' and 'B', and if any such lien exists to secure the payment of said $300 note, then nevertheless, the same is expressly fully and finally released.\\n\\\"In connection with paragraph (a) above, it is understood that you are applying to some one or mo're of the Feder'al Lending Agencies for a loan of seventy-five per cent of the purchase price of the land described in Exhibit 'A'; if said Federal Lending Agencies shall not within fifteen days from this date approve your application for a loan of seventy-five per cent of the purchase price of said land and commit itself to the making of said loan, then this entire contract shall be null and void and be of no binding force or effect upon either party hereto.\\n\\\"I agree to furnish you an abstract'of title certified to this date by a competent and responsible abstractor, showing good and merchantable title in me to the land and premises described in Exhibit 'A'; you are to have five days from and after the date of receipt of such abstract of title, within which to have the same examined by your attorney; if valid objections shall be \\u2022 raised thereto, a true, copy thereof shall be furnished me at Wichita Falls within said five day period and I shall have ten days within which to effect a cure thereof.\\n\\\"It is understood and agreed that title shall be accepted by you and this trade fully and finally consummated and the consideration aforesaid fully paid within sixty days from this date; and if said title shall not be accepted by you and the entire consideration as herein defined shall not be paid by you as hereinbefore provided within said sixty days, then this contract shall be null and void and neither party bound thereby.\\n\\\"It is further understood and agreed that you accept said premises subject to any and all rental contracts, verbal or otherwise, which may be outstanding.and that as to' the proceeds of any and all crops raised upon said land for the year 1937, the same shall belong to you. '\\n\\\"It is further understood 'and agreed that you are to assume and pay off as 'and when due, any and all taxes levied and;-assessed against said land described in-Exhibit 'A' for the year 1937. .\\u2022\\n\\\"It is further understood , and agreed that the performance of. all-of the obliga tions evidenced hereby shall be at Wichita Falls and Wichita County, Texas.\\n\\\"It is finally understood and agreed that in the deed mentioned herein, the vendor's lien and deed of trust lien shall be reserved, executed and delivered upon the land and premises described in Exhibit 'A' to secure the payment of any and all of the purchase price and by the acceptance of this contract, you agree to give me a chattel mortgage lien upon all of' your part of all grain and other crops grown on the land described in Exhibit 'A' as additional security for the indebtedness aforesaid, provided, however, that as to the grain you may reserve a sufficient amount to seed said premises for the crop year 1938.\\n\\\"Very truly yours,\\n\\\"(Signed) Mrs. Stella G. Baker\\n\\\"Accepted:\\n\\\"(Signed) A. H. Fell\\n\\\"(Signed) Louis H. Gould.\\\"\\nThe two tracts sued for are described in those Exhibits \\\"A\\\" and \\\"B\\\".\\nThe record indicates that Mr. Gould acted as broker in the negotiations leading up to the execution of the contract.\\nJ. M. Hendrick, who resides in Wichita Falls, was employed by the Security Association of Wichita Falls, who took applications for and negotiated loans for the Federal Land Bank at Houston. He testified that' the defendant filed with him an application for a loan by the Federal Land Bank at Houston, together, with an abstract of title to the property. He mailed the application to the land bank at Houston, but did not enclose the abstract of title, since it was the custom never to send them the abstract until the Federal Land Bank accepted the application for the loan. The Federal Land Bank at Houston first passes on the application for a loan to determine whether the security offered is satisfactory, because it is not willing to examine the title until it knows the loan can be closed. The defendant stated to him that he was to pay $6,442.50 for the property, and applied for a loan of $5,100. The Federal Land Bank approved the loan for $4,200, but it was never closed. Of the $4,200 for which the loan was approved, the Federal Land Bank was to put up $2,500, and an agency, which was called a Commissioner, was to put up the balance of $1,700. The Federal Land Bank can only lend 45% of' what the property is worth, and the emergency money is used in increasing that amount 25%, and the Bank never makes a loan where there is an outstanding second lien on the property in favor of some other person.\\nAfter receiving that information from the Federal Land Bank, Hendrick dropped the matter and did not send in the abstract of title.\\nPlaintiff, Mrs. Stella G. Baker, testified in the case, and admitted receiving the following. letter, addressed to her by Mr. T. R. Boone, attorney for the defendant, of date May 3, 1937, which the defendant introduced in evidence:\\n\\\"May 3, 1937\\n\\\"Mrs. Stella G. Baker, 2011 Victory Street, Wichita Falls, Texas |\\n\\\"Dear Mrs. Baker:- On March 6, 1937, you made a contract with A. H. Fell, to sell .to him a certain tract of land out here northwest of town, being 257.7 acres, and the contract provides that the title shall be accepted by Mr. Fell and the trade fully and finally consummated and consideration paid within sixty (60) days from date.\\n\\\"Mr. Fell is now ready to fully consummate this deal, has accepted title and now demands a conveyance as provided in this instrument, and to go through with the deal. He did on the 28th of April, 1937, accept title and demanded conveyance thereof and was informed by Mr. Hoffman that he did not believe that you intended to go through with the deal, so he filed the contract of record on April 28, 1937, which is now recorded in Volume 345, page 187, of the Deed Records of Wichita County, Texas, and he here and now accepts the title, here and now offers the consideration as provided therein and to fully and completely perform and demands performance of you.\\n\\\"This letter is written at the request of Mr. A. LI. Fell, and the writer is having Mr. Fell to sign this .letter, giving a copy thereof to Mr. Hoffman.\\n\\\"Yours truly,\\n\\\"TRB :S (Signed) T. R. Boone\\n\\\"cc Messrs. Carrigan, Hoffman & Carri-gan,\\n\\\"Attorneys at Law,\\n\\\"Hamilton Building,\\n\\\"Wichita Falls, Texas.\\\"\\nPlaintiff, Mrs. Baker, testified in part as follows:\\n\\\"Q. (By Mr. Hoffman, her counsel) Now, Mrs. Baker, under the terms of the contract that you had with Mr. Fell, and which are described in Exhibits 9 and 10, Mr. Fell agreed to pay you for the land de scribed in this contract an amount of money equaling $6,442.50, is that correct? According to your record? A. Yes, sir.\\n\\\"Q. Do you remember how much cash was to be paid? A. $4,800.00.\\n\\\"Q. $4,831.88? A. Yes, sir. '\\n\\\"Q. Now, do you remember in the negotiations that you had with Mr. Fell over there in my office and with Mr. Gould how that money was to be obtained? How the cash was to be obtained? A. He was to. borrow money from the government on the land.\\n\\\"Q. Well, now have you ever received any money at all under this contract for the land? A. No, sir, I have not.\\\"\\nAccording to her further testimony, the defendant and Mr. Gould came to her and told her that the Federal Government would approve a loan on the property for $4,200, but not for $4,800, which was seventy-fiv\\u00e9 per cent of the value of the property, but offered to give liens on diamonds and cattle as security for the excess of the loan over and above the amount which the Government would lend, and thus leave the Federal Land Bank with' a first and only lien on the property, as the Government would not make a loan with an outstanding, second lien in favor of a third person.\\nPlaintiff further testified as follows:\\n\\\"Q. (By Mr. Hoffman) All right, did Mr. Gould, in the presence of Mr. Fell, say anything to you about whether the Federal Land Bank had notified them that they wouldn't make the loan if there was going to be a second lien outstanding? A. Repeat that again, please.\\n\\\"Q. Did Mr. Gould tell you, on the occasion of his and Mr. Fell's visit to your home, and, in the presence of Mr. Fell, did he tell you that he had been informed by the Federal Land Bank's agent that the Federal Land Bank would (not) make, this loan if there was going to be a second lien against the land? A. As well as I remember, Mr. Gould said something of it but I wouldn't say positive about that, but as well as I remember.\\\"\\nOn Recross Examination, she testified as follows:\\n\\\"Q. (By Mr. Boone) Mrs. Baker, this conversation that you had with Mr. Gould, how long was that after you made the con- ' tract here dated March 6, '37 ? A: I can't tell you exactly. I would say a month.\\n\\\"Q. Was it before you got this, letter from me, or Mr. Fell, on the 3rd day of May, 1937? A. The 3rd day of May?\\n\\\"Q. The contract was made March 6 A. Well, I would think it was after.\\n\\\"Q. After what? A. After this letter.\\n\\\"Q. After this letter? Aren't you mistaken? Wasn't it before this letter? A. Well, I am not positive about the date. I didn't put the dates down. I didn't put the dates down because Mr. Fell told me if he couldn't get the money he would not cause me any trouble.\\n\\\"Q. Well, then, you got this letter stating he was ready to go forward with it, didn't you? A. I got a-letter from you, yes, sir.\\n\\\"Q. And stating that he was ready to. go forward with the deal. A. And I was ready' and I called him up \\u2014 I didn't know anything about the diamond ring business and I. called him up and he said he couldn't get the deal through like I wanted and it looked like we would have to cancel the contract, and that He wouldn't cause ' me any trouble. I called him at his home. '\\n\\\"Q. When did the diamond deal come up.' When was that? Was that not after they got this loan? Was that before you got' this letter here, or after you got this letter dated May 3rd? A. I can't say positively.\\\"\\nAt the conclusion of the evidence, the court instructed a verdict in favor of the plaintiff, and the defendant has prosecuted this writ of error, from judgment rendered' in accordance with that instruction.\\nAs noted, there were two provisions for the termination of the contract of sale, and the forfeiture of' any rights either party may have as against the other thereunder.' The first reads: \\\"In connection with paragraph (a) above, it is understood' that you are applying to some one or more of the' Federal Lending Agencies for a loan of seventy-five per cent of the purchase price of the land described in Exhibit 'A'; if said Federal Lending Agencies shall not within fifteen days from this date approve your application for a loan of seventy-five per cent of the purchase price of said land and commit itself to the making of said loan, then this entire contract shall be null and void and be of no binding force or. effect upon either party hereto.\\\"\\nAnd the second reads: \\\"It is understood and agreed that title' shall be accepted by-you and this trade fully and finally con-' summated and the consideration aforesaid fully paid within sixty days from this date; and if said title shall not be accepted by you and the entire consideration as herein defined shall not be paid by you as herein-before provided within said sixty days, then this contract shall be null and void and neither party bound hereby.\\\"\\nThere is no finding in the record of the grounds upon which the court instructed the verdict in favor of the plaintiff. Evidently it was upon'one or the other of those two stipulations for a termination of the contract.\\nBut in defendant in error's brief, in reply to the argument advanced in brief of plaintiff in error, that the letter written by Mr. Boone to the plaintiff, of date May 3, 1937, constituted a compliance on his part with the second contractual provision quoted in the brief, this is said:\\n\\\"As shown previously in this Brief, the contract in question failed on a material condition precedent expressed therein and such failure brought about an immediate termination of same, so that it is unnecessary to go into the question of whether or not there was compliance by defendant with the particular contract provision quoted above. Plaintiff in error in his brief conspicuously neglected to quote or mention that particular provision of the contract which immediately precedes the provision quoted above and _ which is quoted verbatim in this Brief on pages 2 and 3, and in the statement of facts, page 41, paragraph 2. It is on that provision that plaintiff (defendant in error) places her right to rescission in this case.\\\"\\nIt may, therefore, be assumed that the action of the trial court in instructing the verdict for the plaintiff was based solely upon the conclusion reached, as a matter of law, that the contract became null and void and of no binding force or effect upon either party by reason of the fact that the Federal Land Bank did not within fifteen days from the date of the contract approve the defendant's application for a loan of seventy-five per cent of the purchase price on the land, and commit itself to the making of said loan.\\nIn other words, that provision of the contract was given controlling effect to the exclusion of other provisions in the contract giving the defendant the right to title to the property by paying the consideration expressed in the contract within sixty days from its date, and with a further provision that the contract would be terminated for failure to pay for the same in that length of time, as shown in the second provision quoted.\\nThose two provisions were for the forfeiture of any of the defendant's rights to purchase and pay for the land; and that they render the contract on that particular point ambiguous is self-evident.\\nIn 43 Tex.Jur., par. 217, p. 385, this is said:\\n\\\"The right of the vendor to recover the property by an action in trespass to try title, for default by the purchaser, is, it seems, substantially the same as his right to rescind on that ground. The general rule, in the case of an executory sale, is that the vendor or his successor may sue for the recovery of the property when the purchaser has defaulted in making payment. But the vendor cannot recover so long as the purchaser is not in default; accordingly he cannot maintain an action to recover the property where the purchaser has made no default.\\n\\\"The contract may, of course, stipulate that a default of the purchaser shall ipso facto terminate the contract and forfeit his rights thereunder. But, as we have seen, a forfeiture provision is for the benefit of the vendor. Although the vendor may elect to declare a forfeiture, the language of the contract must be impelling to require him to accept one against his will. So, as a rule, a forfeiture does not take place automatically; the vendor or his successor must 'declare' it or in some appropriate manner exercise the right to forfeit. When the contract prescribes the manner of exercising the right of forfeiture, its provisions must be scrupulously observed.\\\" 43 Tex.Jur., par. 202, p. 352.\\n\\\"In order that a party ma.y rescind a contract of sale, he must, doubtless, have the 'right' to do so. As a general rule, the vendor or his successor has a legal or equitable right, at his election, to rescind an execu-tory contract on certain recognized grounds, until the purchase money debt is paid or the right is barred by the statute of limitation. But the right to rescind is not an absolute one, enforceable in all cases. On the contrary it may be lost or waived and it may not be exercised when, under the circumstances, rescission would be inequitable. \\\" 43 Tex.Jur., par. 206, p. 358.\\n\\\"The cardinal rule in construing a contract is to ascertain and give effect to the intention of the parties, as expressed .in the language which they have used, provided that such intention is not in conflict with the rules of law; and this is the general purpose of all rules for the construction of contracts.\\n\\\"The general intent and leading purpose should control minor inharmonious provisions. If two purposes or intents may be inferred from the language used and the main purpose clearly appears, such main purpose will control. This rule means that where language is used which is susceptible of two meanings, that meaning will be adopted which does not contradict the main purpose of the instrument, as evident on its face.\\\" Tex.Jur., vol. 10, par. 159, p. 272.\\n\\\"Where a contract is ambiguous or its meaning is doubtful, it will be construed most strongly against the party who drew or wrote it, and was responsible for the language used \\u2014 especially where it provides for exemptions from liability in his favor. This rule does not require that a strained construction should be put upon a contract in order to favor the party who did not draw it, but rather that, in case of a reasonable doubt as to which of two constructions best accords with the intent of the parties, that should prevail which is least favorable to the party whose language it is.\\\" 10 Tex.Jur., par. 162, p. 277.\\n\\\"The intention of the parties to a contract is to be gathered from a consideration of the entire instrument, taken by its four corners. In other words, the contract must be read, considered and construed as a whole, and all of its provisions must be taken into consideration and construed together in order to ascertain its meaning and effect.\\n\\\"Ordinarily it is not proper to consider a single paragraph or clause by itself in order to ascertain its meaning. Each clause or paragraph must be construed with reference to every other paragraph and the effect of one paragraph upon the other determined. A presumption at variance' with' the effect of the other provisions of a contract will not be raised upon a single one of its provisions; and a purpose which is necessarily inferred from the language of a particular clause, when considered alone, is not controlling where it is expressly negatived by a subsequent clause. But the intent of the parties with respect ,to a particular matter is to be gathered wholly from a particular paragraph where it alone refers to the matter and the other provisions refer wholly to different matters.\\n\\\"It is to be presumed that every provision of a contract was incorporated for a purpose. The court has no right to nullify any of .its terms, and, if possible, a construction will be adopted which gives effect to each and every part of the instrument, in preference to one which would render any of the provisions therein meaningless.\\\" 10 Tex. Jur., par. 164, p. 282. See, also, 43 Tex. Jur., pars. 59 and 60, pp,. 97 and 98; pars. 66 and 67, pp. 104 to-107.\\nForfeiture, as applied to this case, means forfeiture of the right of defendant to purchase, given by the contract.\\nAnd the following announcement by the Supreme Court, in Decker v. Kirlicks et al., 110 Tex, 90, 216 S.W. 385, is applicable here [page 386]: \\\"If the provision is ambiguous, that alone condemns it as a forfeiture provision. A forfeiture should rest upon surer ground. -Where a contract is so vague in its terms that a court cannot determine its meaning, it would be unjust to enforce a forfeiture under it against one whose only fault has been to possibly mistake its meaning. Forfeitures are harsh and punitive in their operation. They are not favored by the law, and ought not to be. The authority to' forfeit a vested right or estate should not rest in provisions whose meaning is uncertain and obscure. It should be found only in language which is plain and clear, whose unequivocal character may render its exercise fair and rightful.\\\"\\nAs shown, the first provision for forfeiture is followed by an agreement of the seller to furnish .an abstract of title showing good and merchant\\u00e1ble title in the land \\u2014 but with no stipulation as to when the same would be furnished \\u2014 with the right of the defendant to have five days after its receipt within which to have the same examined by his attorneys; and if valid objections should be raised thereto, a true copy thereof should be furnished to plaintiff within that five day period, and the plaintiff should then have ten days within .which to cure the defects. Under that paragraph of the contract, plaintiff would have been entitled to a reasonable time within which to furnish to defendant an abstract of title. The record does not show the date it was furnished, but even if it was furnished immediately after the con tract became effective, those two periods, five and ten days, would aggregate fifteen days, and if that period of time was thus consumed, it would have been impossible for the Land Bank at Houston to pass on the title and commit. itself to the making of the loan within that period, even though on the last day thereof plaintiff had been able to furnish an abstract showing good title to the land, and even though defendant's application,for a loan of the desired amount had been theretofore approved. It thus appears that the first provision for forfeiture, when read in connection with the paragraph just referred to, was itself ambiguous.\\nAs shown in the first paragraph of the contract of sale, plaintiff bound herself to convey the property by general warranty to the defendant, for the consideration therein stated, and the second provision quoted above, requiring the defendant to accept title and pay the full consideration therefor within sixty days from the date of the contract, shows clearly that the main purpose of the contract was one of sale and purchase to be consummated within that period of time, and that the requirement for securing a loan from the Federal Land Bank was merely to insure the .raising of the purchase money within the sixty day period stated for closing the transaction.\\nHence, the holding made by the trial court that the contract showed on its face that the defendant's right of purchase was terminated by his failure to get from the Federal Land Bank an approval of his application for a loan of seventy-five per cent of the purchase price, and that it would commit itself to the making of said loan all within fifteen days of the date of the contract, was erroneous. Especially so, in view of the plaintiff's testimony noted above, tending to show that after the expiration of said fifteen day period, she was willing to go on with the trade and close the transaction, upon payment of the consideration stated within the sixty day period from the date of the contract, thus evidencing an election not to claim the forfeiture under the fifteen day period.\\nIf the surrounding facts and circumstances could be looked to to determine the intention of the parties as to which of those ambiguous and conflicting stipulations in the contract should be given effect, then that would be a question for the determination of the jury, and the court could not withdraw the same from the jury, under the testimony of the plaintiff herself.\\nAnd in view of the quoted statement from the brief of the defendant in error, to the effect that the plaintiff relied solely upon the first provision for forfeiture, it becomes unnecessary to determine the sufficiency of the defendant's tender of performance of the contract, which was made within the sixty day period fixed for the payment of- the consideration mentioned. ,\\nIn this connection, we quote the following from 10 Tex.Jur., par. 229, p. 402:\\n\\\"A tender and offer to perform a condition precedent and a refusal by the party entitled to the benefit of it, is equivalent to performance, to the extent of authorizing a suit on the contract for nonperformance.\\\"\\nFor the reasons stated, the judgment of the trial court is reversed and the cause is remanded.\"}"
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+"{\"id\": \"10241879\", \"name\": \"ALLSMAN v. YOUNG\", \"name_abbreviation\": \"Allsman v. Young\", \"decision_date\": \"1939-02-22\", \"docket_number\": \"No. 3388\", \"first_page\": \"627\", \"last_page\": \"628\", \"citations\": \"125 S.W.2d 627\", \"volume\": \"125\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:46:53.220905+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ALLSMAN v. YOUNG.\", \"head_matter\": \"ALLSMAN v. YOUNG.\\nNo. 3388.\\nCourt of Civil Appeals of Texas. Beaumont.\\nFeb. 22, 1939.\\nRehearing Denied March 8, 1939.\\nBattaile, Burr & Holliday, of Houston, for appellant.\\nElton Cruse, of Beaumont, for appellee.\", \"word_count\": \"673\", \"char_count\": \"3995\", \"text\": \"WALKER, Chief Justice.\\nThis was an action filed by appellee, Miss Elma Young, against appellant, Harry Allsman, in the district court of Jefferson County for damages for personal injuries suffered by her in an automobile collision in the State of Louisiana. Appellant answered by plea of privilege, duly controverted by appellee, to be sued in Smith County. On hearing, the plea of privilege was overruled, and appellant has-duly prosecuted his appeal to this court. In support of the judgment the following conclusions of fact and law were filed:\\n\\\"1. I find that at the time this suit was filed and at the time this Plea of Privilege was filed that the defendant, Harry Allsman, his wife and family lived in Tyler, Smith County.\\n\\\"2. I find that the defendant, Harry Allsman, on September 15, 1937, by pleadings in a companion case through duly authorized representatives, represented under oath that the said Harry Allsman was a resident of and domiciled in Houston, Harris County, Texas.\\n\\\"3. I find that the defendant, Harry Allsman, authorized listings in the Houston Telephone Directory* showing the listing of a residence telephone under his name.\\n\\\"4. I further find that no change has occurred as to the domicile of the said defendant, Harry Allsman, since September 15, 1937.\\\"\\n\\\"1. I conclude that said defendant's conduct and representations as above set forth were a waiver of his rights, if any, to be sued in Smith County, Texas.\\n\\\"2. I conclude that the acts and representations of the defendants as above set forth estopped the defendant to assert his privilege, if any, to be sued in Smith County, Texas.\\\"\\nThe facts found by the court do not support the judgment. Subject to the exceptions enumerated, Art. 1995, R.S.1925, provides : \\\"No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except .\\\"\\nThe first fact conclusion brings this case within the quoted provisions of Art. 1995; the other fact conclusions do not invoke any of the exceptions enumerated in this article. Agey v. Red Star Supply Co., Tex.Civ.App., 113 S.W.2d 212; Caprito et al. v. Weaver et al., Tex.Civ. App., 63 S.W.2d 1043; Joy v. Marshall Field Co., Tex.Civ.App., 51 S.W.2d 731. Nor do the facts found by the court support the legal conclusions of \\\"waiver\\\" and \\\"estoppel.\\\" Appellant did nothing \\u2014 is not charged with doing anything \\u2014 constituting either a waiver or an estoppel. The facts relied upon to establish these issues grew out of a companion case, filed and prosecuted in the State of Louisiana. It is not charged that appellant, personally, made any representations in that case, or knew the nature of the representations made by his representative. Certainly it cannot be said that the facts found by the court constitute \\\"waiver\\\" as thus defined in Missouri, K. & T. Railway Co. v. Hendricks, 49 Tex.Civ.App. 314, 108 S.W. 745, 749: \\\"A waiver is the intentional relinquishment of a known right or such conduct as warrants an inference of the relinquishment of such right. A waiver, so called, is the result of an intentional relinquishment of a known right. 29 Am. & Eng.Enc.Law (2d Ed.) p. 1091. It has been held that a waiver never occurs unless intended, or where the act relied on ought in equity to estop the party from denying it.\\\" Nor do the facts found by the court constitute estop-pel. Sovereign Camp, W. O. W. v. Bailey, Tex.Civ.App., 277 S.W. 782; Wirtz v. Sovereign Camp, W. O. W., 114 Tex. 471, 268 S.W. 438.\\nIt is insisted that appellant did not except to the conclusions of fact. Exceptions were not necessary. The facts found do not support the judgment; the error is fundamental.\\nThe judgment of. the lower court is reversed and the cause remanded with .instructions to transfer this case to Smith County.\"}"
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+"{\"id\": \"10243454\", \"name\": \"WHITE v. STATE\", \"name_abbreviation\": \"White v. State\", \"decision_date\": \"1935-04-17\", \"docket_number\": \"No. 16963\", \"first_page\": \"465\", \"last_page\": \"476\", \"citations\": \"84 S.W.2d 465\", \"volume\": \"84\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:41:06.969224+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WHITE v. STATE.\", \"head_matter\": \"WHITE v. STATE.\\nNo. 16963.\\nCourt of Criminal Appeals of Texas.\\nApril 17, 1935.\\nRehearing Denied June 19, 1935.\\nTom F. Reese, of Comanche, and Arthur R. Eidson, of Hamilton, for appellant.\\nLloyd W. Davidson, State\\u2019s Atty., of Austin, for the State.\", \"word_count\": \"8486\", \"char_count\": \"46621\", \"text\": \"LATTIMORE, Judge.\\nConviction for murder; \\u2022 punishment, thirty years in the penitentiary.\\nWe find in the record twenty-eight bills of exception, each of which has been carefully considered. Bill of exceptions No. 1 complains of the admission in evidence of a conversation between one Lennie Cropper and Tipton on the night of the alleged murder. It is evident that if there was a conspiracy to kill and rob deceased, to which appellant and Tipton were parties, its object was to get the money of deceased Milton for the joint use of appellant and Tipton. Manifestly, appellant had gotten no part of the proceeds of the robbery at the.time of said conversation, and the conspiracy had not yet achieved its object, and what was said by one party thereto in furtherance of the object of such conspiracy, if any, would be evidence admissible against the other. See Sapp v. State, 87 Tex. Cr. R. 606, 614, 223 S. W. 459. We see no error in bills of exception 2, 3, 4, and 5 which bring forward objections to the court's charge on principals, which objections are unsound for the reason above referred to. If there was a conspiracy, clearly appellant was a principal offender, and if there was such conspiracy, its obj ect had not yet been attained, and the conspiracy would not be ended until such was the fact.\\nBill of exceptions 6 complains of the refusal of a special charge, in effect, that Monte Sims was an accomplice and could not corroborate herself, and that one accomplice could not corroborate another, etc. There was but one accomplice witness in this case, and the special charge was manifestly erroneous. We see no substantial difference between the correct parts of this special charge and the charge given on the same subj ect by the court in his main charge.\\nWe think the testimony of Monte Sims that Tipton left money with Shorty Cropper on the night of the killing to be carried and delivered to appellant the next day was also admissible upon the theory that there was a conspiracy between appellant and Tipton which was not yet consummated. See Sapp v. State, supra.\\nWe see no error in bill of exceptions 8. The transcript upon change of venue from Comanche county to Coryell county showed a proper order by the court directing said change of venue, upon agreement of both parties, on December 12, 1933; also that when the papers reached the office of the clerk of the district court of Coryell county the transcript was marked filed as of the date received, but such file mark was not put upon the indictment or other original papers when so received. The bill of exceptions reflects the fact that when attention was called the trial 'court ordered the file mark put on said papers as of the date they were received by the clerk of the court of Coryell county, which was prior to the convening of the trial term of the court below.\\nBills of exception 9 and 10 seem not to call for any discussion. Bill of exceptions 11 complains of the testimony of the sheriff as to the caliber of the weapon used in shooting deceased. We fail to perceive any injury possible, and are of opinion the sheriff was qualified to give the answer shown.\\nBill of exceptions 12 complains of the fact that the sheriff was permitted to testify that discs of powder penetrated the face, hands, and skin of deceased, and that a man so shot would not fall in the position in which he found the body of deceased when he reached the place of the homicide. We see no material error in this, if any. Appellant testified in his own behalf, and swore that when deceased was shot the man who shot him went right down on top of him. Appellant also testified that before the sheriff got there he had raised the head of deceased and rubbed his face, and put his hat under his head. In other words, it is quite evident that there was abundant opportunity for the position of the body of deceased to have been moved subsequent to being shot. Bill of exceptions 13 fails to show what the witness would have testified had he been permitted. Bills 14 and 15 seem to call for no discussion on our part. We perceive no error in the complaint in bill of exceptions 16. The witness was permitted to say that he took appellant to the office of Mr. Eidson in Hamilton, and that appellant told him when he returned he did not get to see Mr. Eidson. The proposed statement, viz., that the reason he did not get to' see Mr. Eidson was because the latter was out of town, would appear to be but hearsay. Bills of exception 17, 19, and 20 complain of the admission of testimony which was offered by the state upon the theory that there was a conspiracy, to which appellant and Tipton were parties, and that the conspiracy was not yet fully consummated, hence the testimony was admissible. We cannot agree with appellant's contention that any of said bills reflect error.\\nBill of exceptions 18 presents objection to the testimony of Monte Sims upon the ground that she had been convicted of a felony and was confined in jail and not pardoned. The Legislature seems to have conferred the right of testifying upon parties who have been convicted of felonies and are confined in the penitentiary, or in jails. See Acts 39th Leg., 1926, First Called Sess., p. 20, c. 13, \\u00a7 1 (Vernon's Ann. C. C. P. art. 708); Underwood v. State, 111 Tex. Cr. R. 124, 12 S.W.(2d) 206, 63 A. L. R. 978.\\nBills of exception 21, 22, 23, 24, 25, and 26 have been considered, but are not deemed of sufficient importance to call for discussion. .>\\nAppellant's bill of exceptions 27 is copied literally as follows:\\n. \\\"Be it remembered that on the trial of the above styled and numbered cause and while the witness John Reese, a witness for the State, was testifying on direct examination, at the instance of the State and over the objection of the defendant, the district attorney propounded to said witness, thp following question.\\n\\\"Q. 'Are you acquainted with the general reputation of the defendant A. M. White in the community and town of Comanche as \\u2022one of a bootlegger?'\\n\\\"To which the defendant then and there objected and the court sustained the defendant's objection, and 'the district attorney, over the obj ections of the defendant, stated that 'We feel that your question as presented awhile ago is a material question, and one that would tend to shed light and assist the jury in determining the facts, that if this witness were permitted to answer\\u2014 he has said he is familiar with his reputation as a bootlegger, because to show the theory of the State through this case that the defendant has two motives, or more in the highjacking and killing of the deceased P. H. Milton, for the reason that he knew the deceased carried money on his person, and desired to obtain a portion of that money by having him hi-jacked by Tipton and he further desired to have him killed, knew he would not hist and desired to have him killed; that he was a competitor in business, that of bootlegging, and that this witness would answer that his reputation is that of a bootlegger.'\\n\\\"And the court sustained the objections to the question asked and stated at said time that it was not the proper question because the defendant's reputation was not in issue, and thereupon the defendant took his exception to the attempt on the part of the State to inject into the record a matter for the direct purpose and with a view to creating in the minds of the jury, prejudice against the defendant, and stated to the court at th'at time that the defendant wanted all of said matters to be shown and set forth in a bill of exceptions preserved at said time, all of which was allowed by the court.\\\"\\nIn' his brief appellant says that it was error for the court below to allow the 'state's attorney to make the statement above set out, in the presence of the jury, after the court had sustained appellant's objection to the question propounded to witness Reese. In passing on this or any other complaint appearing in any bill of exceptions, this court must as nearly as it can, as ascertained from the recitals of the bill, put itself in what appears to have been the situation of the trial court in making the ruling complained of. In other words, does bill 27 show that the complaint intended was of the statement made by the state's attorney, and, if so, is it in such condition as to make the complaint one of merit, and one which should be regarded by us as calling for re-vers\\u00e1l of this case? Does said bill show that said statement was made in the presence of the jury? For many reasons, we are impelled to answer in the negative. If the members of this court find themselves in serious doubt as to whether the proof shows such statement to have been made in the presence of the jury, it would not appear to be difficult to conclude that the trial court may have concluded that it was not. We further observe that nothing in the bill appears to indicate that the court below felt himself called on to rule upon any objection made to any statement, save that involved in the question asked to which the objection was sustained. We do not know from any recital in the bill whether the attorney approached the court and made his statement referred to, or whether it was made in the hearing of the jury. There is no affirmative statement either way, and we are left to conclude that the trial court knew that it was not in the presence' of the jury. Apparently after the statement referred to was made, the court below \\\"sustained the objection to the question,\\\" and appellant then \\\"took his exception to the attempt oh the part of the state to inj ect into the record a matter for the direct purpose of creating in the minds of the jury prejudice against the defendant.\\\" What does this mean? An argument to the court is in no sense injected into the record.. This is all, and the only exception taken by appellant to the matter under discussion. ' The court was not asked to rule upon any objection to argument, nor was he asked to instruct the jury not to consider any argument. If we try to arrive at the court's understanding of the matter, as evidenced by his ruling, and what he said in that connection, it would appear that he understood appellant's objection and exception to be directed at something which the state was trying to inject into the record, and accordingly he further sustained appellant's objection to the question asked, and said nothing regarding the statement made by the attorney, for the evident reason that he did not feel himself called on to make any statement regarding same, which situation is much in line with what we said in Salinas v. State, 113 Tex. Cr. R. 142, 18 S.W.(2d) 663, 668, speaking of an argument made: \\\"Possibly to the court, possibly to the jury.\\\" We can not tell as the matter is left to conj ecture.\\nBills of exception complaining of argument, as well as other matters, must be so exact and definite within themselves as to manifest the error complained of. See Tex. Jur., vol. 4, p. 261. The first case cited in support of the text just mentioned is Salinas v. State, supra, in which discussing \\u2022the refusal of a special charge, we said in \\u2022the opinion, \\\"Reflects the fact that the as sistant county attorney said in argument: 'I want to call to your attention that rarely in a court of justice have I ever seen a man apply for a suspended sentence when he was not guilty,' \\\" used language as follows : \\\"We are not apprised in any way as to how many arguments were made in the case, nor at what time in the course of the argument said assistant county attorney spoke, nor what led to the making of the remark. These matters are left to conjecture. All we know from the record is that, while the assistant county attorney was speaking \\u2014 possibly to the court, possibly to the jury \\u2014 he made the remark set out in the charge referred to, and, further, that before the jury retired at the conclusion of the argument, the special charge under consideration was presented to the court, and was then refused.\\\"\\nLater in the opinion it is said: \\\"Manifestly for an attorney to make a statement, possibly in reply to some suggestion of the other side, or in some discussion before the court, or under circumstances justifying or excusing same, but to which no objection is offered to the argument until the case is concluded, perhaps that day, or in many instances some later day, at a time when neither the court nor the attorney can adequately recall or state the facts pertaining to the argument, or adequately explain or withdraw or modify same, is unfair, and should not be tolerated.\\\"\\nThere are other rules equally well settled which apply. If appellant made an objection directed at the rather lengthy statement of the state's attorney above quoted, it was what might be termed a blanket objection, not specifying any part of same as that to which he excepted as likely to create prejudice. As we view it, the greater part of said statement is not open to any such imputation. The rule is that in objecting to argument the particular part deemed a proper subject for such objection should be pointed out, and if not so, the bill of exceptions presenting the complaint .would not call for consideration. See McKenzie v. State (Tex. Cr. App.) 11 S.W.(2d) 172, 179; Moore v. State, 107 Tex. Cr. R. 287, 290, 296 S.W. 308; Rowan v. State, 97 Tex. Cr. R. 130, 260 S. W. 591; Newman v. State, 99 Tex. Cr. R. 323, 269 S. W. 87; Nelson v. State, 99 Tex. Cr. R. 564, 270 S. W. 865; McVicker v. State, 100 Tex. Cr. R. 598, 272 S. W. 166; Gray v. State, 109 Tex. Cr. R. 481, 5 S.W. (2d) 518. As said by us in Blackmon v. State, 95 Tex. Cr. R. 116, 124, 252 S. W. 803, 807: \\\"There may have been some statements testified to by the witness Champion as made by deceased that could not be classed as coming within a res gesta; declaration. However, no objection appears to have- been made specifically to any particular part, but the objection went to the entire statement.- As made it was not tenable.\\\"\\nThere is another well-settled rule which has application. There must be written request of the trial court to have the jury instructed not to consider argument deemed objectionable. Watson v. State, 105 Tex. Cr. R. 152, 287 S. W. 265; Page v. State, 104 Tex. Cr. R. 63, 281 S. W. 871; Tarver v. State, 108 Tex. Cr. R. 655, 2 S. W.(2d) 439; Rambo v. State, 96 Tex. Cr. R. 387, 258 S. W. 827; Ferguson v. State, 95 Tex. Cr. R. 212, 253 S. W. 290; Smith v. State, 92 Tex. Cr. R. 446, 244 S. W. 522; Shaw v. State, 89 Tex. Cr. R. 205, 229 S. W. 509. When no request for such instruction is made, this court will not reverse for argument unless it be manifestly of such necessarily hurtful character that we conclude an instruction not to consider would have been of no avail. In determining this issue, we have in mind the whole case, including the testimony and the verdict. As' said by this court in McCall v. State, 113 Tex. Cr. R. 62, 18 S.W.(2d) 172, 175, in discussing the reversible character of a statement made in argument by the district attorney, who said, \\\"If you convict the defendant he has a right to appeal and review the judgment of the court,\\\" and after a discussion of certain cases wherein a somewhat similar remark was held ground for reversal: \\\"The statement should not have been made by the district attorney, but doubtless before it was made every man on the jury knew that if appellant was convicted he could obtain a review of his case. In Vineyard v. State, 96 Tex. Cr. R. 401, 257 S. W. 548, this court said: We think the only safe rule to be that this court should not hold an argument to be reversible error unless it is in extreme cases where the language complained of is manifestly improper, harmful, and prejudicial, or where a mandatory provision of the statute is violated, or some new and harmful fact injected into the case. Stanchel v. State, 89 Tex. Cr. R. 358, 231 S. W. 120; Henderson v. State, 76 Tex. Cr. R. 66, 172 S. W. 793; Bowlin v. State (No. 6418) 93 Tex. Cr. R. 452, 248 S. W. 396, opinion November 1, 1922.' In the opinion on rehearing in the same case Judge Morrow said: 'In deciding whether the argument is of a nature demanding a reversal of the judgment, the language used is not alone the test. The evidence and the verdict must'be considered. Hart v. State, 57 Tex. Cr. R. 21, 121 S. W. 508; Ex parte Davis, 48 Tex. Cr. R. 644, 89 S. W. 978, 122 Am. St. Rep. 775; Borrer v. State, 83 Tex. Cr. R. 198, 204 S. W. 10037.' \\\"\\nApplying these rules to the case at bar, what have we ?\\nThe question asked Reese was at practically the end of the testimony. It had been testified to that deceased was a bootlegger; that Shorty Cropper, at whose house in Hamilton the state claimed appellant and Cropper with Tipton formed the conspiracy to kill, was also a bootlegger; that Tupin, with whom appellant went to Hamilton on the day before this killing, was, in the language of appellant, engaged to sell appellant liquor that night, and was looking for a shipment, and thus shown to be a bootlegger; that Wiesendanger, who was with appellant at the home of Milton, deceased, at the very time of the homicide, was there to get jointly with appellant a half gallon of whisky, of which Wiesendanger said he would sell part the next day, thus evidently classing him as an illicit seller of liquor; that the very bill under discussion recites that the witness Reese had said he was familiar with appellant's reputation as a bootlegger, such statement appearing presumably in some other part of his testimony; that appellant was shown to have consorted with these proven bootleggers, and to have followed oil fields, and to have lived at Comanche for a number of years, with very slight showing as to how he made a living, was all before this jury for what it was worth as reflecting the true business and character of this appellant. As Judge Morrow said in the case last above referred to, and in line with what Judge Hawkins said in the same case [Vineyard v. State, supra], we would look at an argument complained of in the light of the testimony and the whole record and the verdict in trying to determine, from our standpoint as an appellate court, whether same be of such harmful nature as to have injected new and hurtful issues, or to have created prejudice, and unless we could overlook all the many obvious objections to this bill, and what was said and done in the light of the whole record, \\u2014 we would not feel inclined to believe the statement of the attorney, even if made in the presence of the jury, and if. such as it could be considered such as would call for reversal.\\nAppellant's chief ground of complaint in this case is that there is not sufficient testimony corroborating the accomplice Monte Sims. There is no question but that appellant was present at the time of the alleged homicide, and she was convicted herein upon the theory that she was a coconspirator with Tipton, the man who fired the fatal shot, and that Monte Sims was an accomplice to said killing. In order that our views might be understood, it will be necessary to set out at some length the testimony.\\nBy witnesses other than the accomplice, the following facts were established: Tip-ton shot and killed Milton. The killing was done about 8:30 p. m. in a street in front of Milton's house, from which house he had just come to the car of appellant with a jar of whisky. Said house was located in the little city of Comanche, some three-quarters of a mile from the public square. Appellant and one W had driven up to a point in front of the home of deceased, had called him out, and asked him to sell them a half gallon of whisky. The night was dark and cloudy. When deceased approached appellant's car, the latter turned off the car lights. \\u2022 At this juncture Tipton appeared from behind said' car with a pistol and commanded them to stick up their hands. Deceased was outside the car and appeared to be slow in getting his hands up, and Tip-ton shot him. Deceased fell beside the car, and Tipton ran his hand into the bosom of deceased and got something, went around the car and fled. Deceased had $215 in the bosom of his shirt before the occurrence. This money was found to be gone afterward. No effort was made by Tipton to rob either W or appellant, or apparently to get from the body of deceased any money or valuables in any other pocket or part of the clothing of deceased.\\nDeceased kept his car in a garage near the house. In the car he kept a shotgun. Examination of the car that night after the shooting revealed the fact that the glass door of the car had been broken and the shotgun was gone. The next day it was. found in some bushes across the road. Lennie Court, who had been the wife of appellant's brother, lived with Shorty Cropper in Hamilton, thirty-six miles from Comanche. At the time of this trial she had married Shorty and is herein referred to as Lennie. On the day before the night of this killing, Tipton and Monte Sims ap peared at Lennie's house in Hamilton. The same day appellant and Tupin went from Comanche to Hamilton and up to Lennie's house. Tipton, appellant, and Cropper were together at said house. Appellant and Tupin returned that afternoon to Comanche. The two got to Hamilton, according to Tupin, just before noon. Appellant testified that they left about 2 p. m. to go back to Comanche. On the way back appellant observed to Tupin that Pink Milton (deceased) flashed so much money that he was going to get robbed some time. While in Hamilton, appellant tried to pawn a shotgun and a rifle which he had carried over from Comanche. After getting back to Comanche, appellant engaged a half gallon of whisky from Tupin, at the house of the latter, this engagement being made, according to Tupin, between sundown and dark, but Tupin said appellant did not come back to his house afterwards for it. Some time in the afternoon after appellant and Tupin got back to Comanche they went to W's house, and appellant there told W he would be back to see him later. He did show up at W's house about 8 p. m., according to W. They then went to Milton's house where the killing occurred in a few minutes.\\nLennie Cropper swore that about 5 p. m. on said day Monte Sims and Tipton left her house going toward Comanche. They came back about midnight that night and stayed a short time. Tipton told her he had killed a man, had to kill him. Monte Sims took \\\"the money out of her bosom and gave it to him, and he counted it, and then he told how he killed the fellow in Comanche.\\\" He said he first got a shotgun out of the fellow's car and threw it in some bushes, and when this fellow came out of the house he ran up to him and told him to \\\"Stick them up.\\\" He said there was a car at the front, and that the fellow he killed had come out to the car, and he told him to stick them up, and that all the time he was coming up with one hand, he was pulling a gun with the other, and he told deceased \\\"Don't shoot,\\\" and the fellow shot at him, and he shot the fellow, and stuck his hand in the fellow's bosom and got his money, and that he run off and back to his car, and went out to a pasture and got lost, threw the gun away, went right through Comanche and on to Hamilton and to her house. She further testified that next morning she and Cropper went to Comanche and had a conference with this appellant, after which they went back to Hamilton.\\nA witness testified that on the night of the killing a man and a woman in a car came to appellant's house inquiring for him, but were told he was not there. This was about 7 or 7:30 p. m. Another witness testified that on the night of this killing he saw appellant near Renfro's market on the public square in Comanche, and later about dark saw appellant in a car with a man and woman who were unknown to witness, going across the public square north in a car together.\\nAppellant denied being in a car on the public square of Comanche that night with a man and woman. He explained his going to Hamilton as in furtherance of his desire to get a political job; also denied that he and W went to the house of deceased save to get whisky that night of the killing. He claimed that he had gone to Tupin's for whisky he had engaged, and said Tupin did not have it. He explained about turning off his car lights at the time and place of the killing by saying that W told him he had better turn off the lights. He later said he had been up there once before and that Milton told him \\\"whenever you come up here turn the lights off.\\\" Asked if another reason for turning off his lights was that he did not want W to see and observe the man who was going to do the hijacking, appellant replied that the only reason he turned his lights off was that Milton told him to turn his lights off whenever he came there. He admitted that the man who shot Milton made no effort to rob him and W, and also said that the man, while robbing the body of deceased, did not look up to see if they had guns. He testified he lived in Comanche and had never seen Tipton until that day. Sheriff Brightman also testified that Tip-ton did not live in Comanche and was a stranger up there. The substance of the testimony of Monte Sims was that on the morning of the day of the killing she and Tipton drove from Big Lake to Hamilton and to the house of Lennie Cropper. The two women went to another house. They came back in the afternoon. Shorty Cropper was then at the house. About 5 p. m. Shorty and Lennie left in a car. About the same time Monte and Tipton left in their car and drove to Comanche, where they arrived about 7 or 8 p. m. They drove around trying to find this appellant, going first to his home where some girls were in the yard. Tipton asked if Mr. White lived there, and some one said yes. He asked if White was there at the house. Some one called to a lady and asked if he was there, and they said, \\\"No, we would find him around Ren-fro's market.\\\" She and Tipton drove down town and found appellant at the side of Renfro's market. He got in the car with them and drove out with them to show them where Milton lived. Tipton did not know where deceased lived. They drove by the house twice, and appellant pointed out the house, the garage, and a ditch. They then drove out to where a gate went into a pasture and here they stopped and talked. Appellant described Milton to Tipton, and told Tipton that he (appellant) would come up in his car and leave the lights on so Tip-ton could see Milton, and if he was the right man he would knock his lights off and then turn them on again. Appellant also told Tipton that Milton did not carry a gun, and would \\\"Histe\\\" easy, and that if he did not \\\"Histe\\\" easy to shoot him as he did not carry any gun at all, but had a shotgun in his car, and for Tipton to get it, that appellant wanted 'it. Appellant told her and Tip-ton to then come out to this gate in the pasture and wait until he (appellant) could get out there. Appellant said several times that Milton did not carry a gun, and had been \\\"Histed\\\" before and would \\\"Histe\\\" easy. Appellant also said he would get somebody else to go with him who would not know anything about it, would pick up a boy and bring him along with him. He showed the woman and Tipton where to park their car. They then drove him back to town and let him out, and she and'Tipton drove back to the place where appellant showed them to park their car, and here Tipton, got out and walked back and 'she' stayed in .the car. Tip-ton was gone about a half hour. When he came back, he gave her some money, but how much she did not know. They then drove back to the gate mentioned where appellant was to meet them and divide the money gotten from Milton. They drove in this gate but decided not to wait. They drove out and down to the edge of Comanche, where they threw away the shoes worn by Tipton, and then came on to the square, got on the Hamilton road and drove to Hamilton and out to Lennie Cropper's, where they stayed not over forty-five minutes, and then drove to Austin, where they filled up with gas and then went on to San Antonio. While they were at Lennie's that night, after coming back from Comanche, Tipton gave to Shorty Cropper part of the money he got from deceased to give to appellant. The money Tipton had was something over $200 in all, but she did not know how much of the money he gave to Cropper..\\nIt is well settled that the state need not corroborate its accomplice witness upon all of his testimony, indeed, the requirement of the law goes no further than to demand that there be testimony other than that of the accomplice which in and of itself tends to connect the accused with the crime alleged. That the corroboration can be by circumstances seems also well settled. See Boone v. State, 90 Tex. Cr. R. 374, 380, 235 S. W. 580; Edwards v. State, 77 Tex. Cr. R. 654, 179 S. W. 1163; Rowan v. State, 97 Tex. Cr. R. 130, 260 S. W. 591; Stepp v. State, 92 Tex. Cr. R. 325, 244 S. W. 141; Chandler v. State, 89 Tex. Cr. R. 597, 232 S. W. 318; Lamb v. State, 101 Tex. Cr. R. 557, 275 S. W. 1038; Minor v. State, 108 Tex. Cr. R. 1, 299 S. W. 422; Belot v. State, 121 Tex. Cr. R. 524, 49 S.W.(2d) 1102.\\nWe have here a murder committed in the perpetration of the offense of robbery, the deceased at most an obscure bootlegger living in the outskirts of his home town, killed and robbed by a stranger. The setting of the crime seems to force the conclusion that some one with knowledge acted with Tipton. Was appellant this person? He was familiar with the location of Milton's house, and with Milton's habits of having on his per-son large sums of money. They lived in the same town. By nonaccomplice witnesses it was shown he met Tipton at Hamilton the day of the murder, and met him at the home of his former sister-in-law. Appellant was in Hamilton only about two hours. On the way back'to Comanche he suggested to his companion that Milton was going to be robbed; Milton was robbed and killed that very night by -the man Tipton, whom the jury may have, been justified in believing that appellant had gone to Hamilton that day to see.\\nThe accomplice testified that when she and Tipton got to Comanche in the late afternoon of that fatal day, they tried to contact appellant, and for that purpose went to his house and inquired of some girls in the yard if White lived there and was at home; they were told that he lived there, but was not at home but was down around Renfro's market. She further testified they went to Renfro's market, found appellant, and took him in their car to show them where deceased lived. She is corroborated by a girl who was in White's yard on said night, and also the man on the public square who saw appellant going across the square that night in a car with a strange man and woman.\\nThe accomplice testified that appellant showed them the home of deceased and the garage by it, and told them deceased kept a shotgun in his car in the garag\\u00e9, and that he, appellant, wanted this gun. That very night after the killing it was found that the garage had been entered, the door of his car broken, and his shotgun taken. The gun was found the next morning in some bushes across the road. That night, at Hamilton, in describing the occurrence to a nonaccom-plice witness, Tipton told her that he broke the door of the car of deceased, got the gun, and threw it in the bushes. The facts in this record further show that no opportunity for contact of appellant and Tipton, at the pasture gate after the gun had been so taken, was afforded.\\nThe accomplice also testified that appellant told her and Tipton 'that he would turn off his car lights as a signal to Tipton that the right man had come to the car. By non-accomplice witnesses, in fact by appellant himself, proof was made that when deceased came to the car, the car lights were turned off, Tipton promptly appeared and robbed the very man, and also killed him, and him alone, exactly in accordance with what the woman testified was the set up of the conspiracy. She testified that appellant told Tipton that if he did not \\\"Histe\\\" easy, shoot him. Appellant attempts to explain why he did turn off his lights, giving contradictory explanations but the jury did not have to accept his explanation.\\nAgain, the accomplice testified that as part of the conspiracy appellant said he would take with him to the place a party who would know nothing of the plot and enter Mr. W, who testified that about 8 p. m. appellant came to his house, having previously told him that he would see him later, and that about 8:15 p. m. he and appellant drove to Milton's house, where evidently Tipton was waiting and the tragedy was enacted.\\nDid appellant really want whisky that night? Tupin testified that appellant had asked him to get for him, appellant, a half gallon of whisky late that afternoon, and Tupin testified that he did get it for appellant, but that appellant did not come for it. Again, and significantly, the killer and robber, though \\u00e1 stranger, did not waste time on the two men in the car, or in searching in pants pockets of the dead man, but when Milton fell, Tipton thrust his hand into the bosom of the shirt of his victim where he found $215 and fled.\\nMonte testified that they drove at once to the pasture gate where they were to meet appellant and divide, but he was not there, and they, evidently afraid to wait, drove back to the house in Hamilton, where inference suggests the plot was laid; and here-Lennie testified Monte took frpm her bosom and gave to Tipton \\\"the money.\\\" Monte further testified that here Tipton gave to-Shorty Cropper appellant's half of the loot, with instructions to take it to Hamilton the next day and deliver it to appellant. For some reason, Shorty Cropper and Lennie drove some seventy-two miles to Comanche and back the next day, and as far as this record reflects saw no one in Comanche save this appellant. Cropper attempted to explain this trip by saying that he went to tell appellant that he could not wait longer on him, but would go on to Austin without him to see about a job. As a witness in his-own behalf, appellant's testimony, however, makes plain the proposition that Cropper had no thought of going to Austin for a job until appellant told him in Hamilton that he himself was applying, and Cropper then asked appellant if he thought he might get on. Also that after going to Comanche to see appellant the day after the killing, Cropper did not go at any time to Austin for a job, but instead went through Austin and on to San Antonio.\\nThe case is by no means free of difficulty, and the record has many angles, but as we view it, the facts and circumstances amply support the conclusion of guilt and corroborate the accomplice.\\nFinding no error in the record, the judgment will be affirmed.\"}"
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+"{\"id\": \"10243530\", \"name\": \"TEXAS & N. O. R. CO. v. STANLEY\", \"name_abbreviation\": \"Texas & N. O. R. v. Stanley\", \"decision_date\": \"1935-11-27\", \"docket_number\": \"No. 2851\", \"first_page\": \"141\", \"last_page\": \"141\", \"citations\": \"88 S.W.2d 141\", \"volume\": \"88\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T20:11:43.637204+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"TEXAS & N. O. R. CO. v. STANLEY.\", \"head_matter\": \"TEXAS & N. O. R. CO. v. STANLEY.\\nNo. 2851.\\nCourt of Civil Appeals of Texas. Beaumont.\\nNov. 27, 1935.\\nRoy L. Arterbury, of Houston, for appellant.\\nCarney & Carney, of Atlanta, for appellee.\", \"word_count\": \"328\", \"char_count\": \"1930\", \"text\": \"WALKER, Chief Justice.\\nThis action was instituted in county court of Nacogdoches county by appellant, Texas & New Orleans Railroad Company, against appellee, H. F. Stanley, to recover damages to its property in Nacogdoches county caused by a collision with one of appellee's trucks. Appellant pleaded a trespass in Nacogdoches county by appellee. Appellee answered by plea of privilege that the case be transferred to the county of his residence. Appellant duly controverted this plea. Upon trial the plea of privilege was sustained and the case transferred, as prayed for by appellee.\\nIf we understand appellee's brief, he would support the judgment appealed from upon the sole ground that, under the proof, he did not own the truck and was not responsible for the collision. There was abundant proof that he was guilty of the trespass, as charged.\\nThe proof on the issue of the ownership of the truck was as follows: After the collision appellant's local agent at Nacog-doches had a telephone conversation with a man in the town of Nacogdoches who told him that his name was H. F. Stanley, and that he owned the' truck. Lon B/ Marshall testified that, as the agent of the Ben T. Wilson Chevrolet Company in Nacog-doches, he made an estimate of the cost of repairs on the truck; that the request was made to him by appellee, H. F. Stanley; and that Mr. Stanley told him he owned the truck. There was other testimony to the effect that appellee admitted that he owned the cargo on the truck at the time of the collision.\\nBy its proof appellant satisfactorily established every issue essential to sustain venue in Nacogdoches county. The judgment of the lower court is reversed, and the cause remanded for a new trial.\\nReversed and remanded.\"}"
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+"{\"id\": \"10244799\", \"name\": \"MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS v. HAIL\", \"name_abbreviation\": \"Missouri-Kansas-Texas R. v. Hail\", \"decision_date\": \"1932-04-21\", \"docket_number\": \"No. 1523-5835\", \"first_page\": \"589\", \"last_page\": \"591\", \"citations\": \"48 S.W.2d 589\", \"volume\": \"48\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Commission of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:46:23.904036+00:00\", \"provenance\": \"CAP\", \"judges\": \"OURETON, O. J., not sitting.\", \"parties\": \"MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS v. HAIL.\", \"head_matter\": \"MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS v. HAIL.\\nNo. 1523-5835.\\nCommission of Appeals of Texas, Section A.\\nApril 21, 1932.\\nJ. M. Chambers, of Dallas, and E. V. Hard-wick, of Stamford, for plaintiff in error.\\n\\u25a0 Smith & Smith, of Anson, and M. Y. Brooks^ of Roby, for defendant in error.\", \"word_count\": \"1315\", \"char_count\": \"7350\", \"text\": \"HARVEY, P. J.\\nThis is a suit by Temple Hail against the Missouri-Kansas-Texas Railroad Company of Texas to recover damages for personal injuries. The trial court instructed the jury to return a verdict for the railroad company, and judgment was rendered accordingly. The Court of Civil Appeals reversed that judgment, and remanded the cause. 30 S.W.(2d) 1062.\\nWhile attempting, as a passenger, to board a moving passenger train of the railroad company, at Hamlin, Tex., Hail fell and the train ran over his arm, cutting it off. Among the grounds of negligence charged against the company was the failure of the train operatives to give warning that the train was about to depart, and in causing the train to jerk violently as he attempted to board it. Hamlin is a town through which the passenger train in question was operated. The following facts appear from testimony introduced: On the occasion in question, Hail went to the railway station, a short time before train time, for the purpose of going on the train from Hamlin to Stamford, Tex. There were one or two other persons in the waiting room who intended to become passengers on the train. When the train drew up to the station, the other passengers left the waiting room and boarded the train. Hail started to leave the waiting room with them, but, as he got to the door, it occurred to him that he had not obtained a ticket. He thereupon turned back to the ticket window and purchased a ticket. He then left the waiting room for the purpose of boarding the train. As he came out, the train, which was headed east, was standing on the main track just north of the station. The front end of the baggage and express car lacked a few feet of being opposite the entrance to the waiting room. Behind the baggage and express car were two coaches. The front end of the hindmost coach was the place where passengers were expected, to board the train. This place for boarding the train was, on the occasion in question, some 140 or 150 feet west of the entrance to the waiting room. The undisputed evidence shows that it was customary for the train in question to stop at Hamlin no longer than was necessary for passengers to disembark and embark, and for the loading and unloading baggage and express shipments into and from the baggage and express car; and that those operations usually required about 3 or 4 minutes of time. The evir dence also shows, without dispute, that it was customary, and had been for a long period of time, for the conductor or some other train operative, to give warning that the train was ready to depart by calling out \\\"All aboard.\\\" Hail knew of these several customs, and knew that the train usually stopped but about 3 or 4 minutes. On leaving the waiting room as stated above, Hail turned his steps westward toward the rear passenger coach for the purpose of getting aboard the train. As he walked along he passed a truck which was drawn up beside the baggage and express car, and saw the conductor and another man on the truck engaged in loading and unloading baggage, and perhaps express shipments, into and from the baggage and express car. He continued on toward the rear coach. When he reached a point about 15 or 20 feet from the rear coach he met two men, who were friends of his, and who had just assisted a relative of theirs to board the train. On meeting these men, he became engaged in conversation with them, and turned and walked southward with them to a point on the station grounds, which point was about 35 or 40 feet southeast of the front end of the rear passenger coach, where the train was to be boarded. At said point, the three stopped, and a few seconds later the two friends of Hail moved on. About this time, Hail saw the train begin to move. The interval of time that had elapsed since he left the waiting room was about three minutes. He testified that he had been constantly listening for the .warning signal, \\\"All aboard,\\\" to be called, and was relying on such warning signal to be given. He testified to facts which tend to prove that said warning call was not made by any of the-train operatives, or anyone else. None of the train operatives were down in the vicinity of the rear coach. Hail knew the conductor and knew'that he, or some other trainman1, usually called out \\\"All aboard\\\" when the train was ready to depart. There is testimony to show that, if this warning call had been given on the occasion in question, Hail could and would have reached and boarded the train before it began to move. When he discovered that the train was moving out, as stated above, he walked rapidly to it, as it moved slowly along, and taking hold of the hand rails on either side of the steps le\\u00e1ding to the front platform of the rear coach \\u2014 one with his left hand and the other with his right \\u2014 he stepped up on the lower step. Just as he did this, the train gave two violent jerks or lurches forward, which resulted in Hail being thrown to the ground and being injured as stated. This accident occurred about 8:00 p. m. February 18, 1929.\\nThe testimony raises a fact issue as to negligence oh the part of the railroad company, in failing to give the customary warning call \\\"All aboard.\\\" It cannot be doubted that the facts stated show that the status of Hail was that of passenger, and that the company had become charged with the duty to exercise that high degree of care for his safety which the law imposes on a carrier of passengers. Hail did not lose his status of passenger, by failing to go immediately and get aboard the train when he purchased his ticket. Nor do we think that it can be said, as a matter of law, as the plaintiff in error contends, that Hail was negligent in failing to go aboard immediately. Admittedly he knew that the train, according to custom, would remain standing no longer than was necessary for passengers to get 'on and oft the train, and for the loading and unloading of baggage and freight into and from the baggage and express car. The length of time the train usually remained stopped was variable, depending on the length of time required to conclude the operations named. Hail also knew, however, that the warning signal \\\"All aboard\\\" was customarily given when those operations were concluded and the train was ready to depart. About three minutes before the accident occurred he had seen the conductor, and another . man, up towards the front end of the train, engaged in loading and unloading baggage and freight. He was listening for the warning call that would signify that this task had been completed, and that the train was ready to go. It would be going too far to hold, as a matter of law, that Hail, under these circumstances, negligently delayed getting aboard the train. That, we think, was a jury question.\\nFor the reasons stated, we recommend that the judgment of the court of Civil Appeals, reversing the judgment of the trial court, be affirmed.\\nGREENWOOD and PIERSON, JJ.\\nJudgment of the Court of Civil Appeals is affirmed, as recommended by the Commission of Appeals.\\nOURETON, O. J., not sitting.\"}"
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+"{\"id\": \"10260528\", \"name\": \"MASON v. PRINCE\", \"name_abbreviation\": \"Mason v. Prince\", \"decision_date\": \"1938-09-22\", \"docket_number\": \"No. 3746\", \"first_page\": \"1087\", \"last_page\": \"1090\", \"citations\": \"120 S.W.2d 1087\", \"volume\": \"120\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T02:15:19.300037+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MASON v. PRINCE.\", \"head_matter\": \"MASON v. PRINCE.\\nNo. 3746.\\nCourt of Civil Appeals of Texas. El Paso.\\nSept. 22, 1938.\\nRehearing Denied Oct. 13, 1938.\\nJohn B. Daniel, of Temple, for appellant.\\nHamilton, Lipscomb & Wood, Logan Ford, and Burford, Ryburn, Hincks & Charlton, all of Dallas, for appellee.\", \"word_count\": \"2021\", \"char_count\": \"11923\", \"text\": \"WALTHALL, Justice.\\nThis is a suit by W. D. Prince, Receiver of the Lloyds of Texas, appellee, filed on May 26, 1934, in the 101st Judicial District Court, and subsequently transferred to the 44th District Court of Dallas County, Texas, against H. B. Mason, appellant, an underwriter of the Lloyds of Texas, to recover on the latter's subscription contract the sum of $1,220, which sum is appellant's several and pro rata liability on losses and claims which have accrued against the Exchange on policies issued, from the time he became an underwriter on January 18, 1929, until the cancellation of his power of attorney at a meeting of the underwriters at the Baker Hotel on April 14, 1930. Appellee, in-addition to appellant's several and pro rata liability on losses and claims which have accrued against the Exchange, sought to recover the sum of $400 as appellant's part of the expenses incurred in administering the estate in receivership since May 16, 1930, the date on which the estate was placed in the hands of a receiver, upon application of the Attorney General of Texas. Recovery for administration expense was abandoned on motion for judgment.\\nAppellant answered, setting up plea of privilege, pleas in abatement, pleas to the jurisdiction of the court, and other dilatory pleas and exceptions, defense of fraud inducing the execution of the subscription contract, and failure of consideration, all-of which pleas and defenses were waived.\\nAppellant defended on the ground that he revoked his power of attorney on May 3, 1929, by letter dated May 2nd, addressed to the attorney in fact, and received by him on May 3, 1929.\\nAppellee by supplemental petition plead that appellant was prohibited from successfully asserting his plea of revocation by reason of the finding of the Master in Chancery in the original suit, to which appellant was a party. That under proper Orders of Reference the Master in Chancery found appellant did not terminate his subscription contract until April 14, 1930. That appellant did not reserve any exception to the findings of the Master, or to the order of the Court confirming and adopting same. That such finding and approval by the Court constitute an adjudication adverse ' to appellant's plea, and in the absence of an objection thereto is conclusive upon him, and effectually precludes him from asserting the revocation of his power of attorney on May 3, 1929. Appellee further plead that appellant was estopped to assert that he had revoked his power of attorney on May 3, 1929, and had waived such defense because of his participating as an underwriter in a meeting of the Lloyds of Texas on April 14, 1930, and seconding the motion to cancel the powers of attorney and transfer to the Insurance Commission the assets of the Exchange for immediate liquidation with knowledge of the facts he now pleads to defeat recovery on his underwriter's contract \\u2014 to-wit, his alleged revocation on May 3, 1929. Appellee further alleged that the attorney in fact did not comply with the instructions contained in the letters of May 2 and 4, 1929. That the attorney in fact continued to write policies of insurance on the faith of appellant's subscription to the surplus of the Exchange, continued to list appellant as an underwriter on the books of the Exchange up to the appointment of a receiver on May 6, 1930, listed appellant as an underwriter in the annual report filed on February 8, 1930, with the Insurance Commission at Austin, and on December 31, 1929, represented to the examiner of the Insurance Commission that appellant was an underwriter. That policies of insurance were issued and credit was extended to the Exchange because of his apparent status as an underwriter. That appellant knew he was being held out to the public as an underwriter and contributor to the surplus of the Exchange. That the rights of creditors have intervened. That appellant-neglected to bring suit to cancel and rescind his underwriter's contract until June 6, 1930, after the Exchange had been adjudged insolvent and a receiver appointed to wind up its affairs, and that by reason of such facts appellant was estopped from asserting that he had revoked his subscription contract on May 3, 1929, and to deny his liability for the debts, claims, losses and expenses which accrued between January 18, 1929, and the termination of his power of attorney on April 14, 1930.\\nThe case was tried before a jury. At the close of the testimony appellee filed its motion for an instructed verdict in the sum of $1,220, defendant's several and pro rata liability on the unpaid losses due by the estate. This request was overruled by the court, to which appellant duly excepted and same is reserved by proper bill of exception.\\nThe jury found that appellant revoked his power of attorney on May 3, 1929. That he did not thereafter abandon his revocation and that he participated in a meeting of the underwriters on April 14, 1930, as an underwriter of the Exchange.\\nThe undisputed evidence discloses that in the event appellant revoked his power of attorney on May 3, 1929, and such revocation becomes effective upon receipt of notice thereof, appellant's liability is $51.-44. In the event his alleged revocation does not become effective until three months thereafter, as provided by the terms of the underwriter's contract, his liability is $488.46. In the event the appellant's subscription contract was terminated on April 14, 1930, his liability is the sum of $1,220%\\nAppellant asked that- judgment be rendered on the verdict against him for $51.-44. Appellee filed motion for judgment notwithstanding the verdict, and in the alternative, on the verdict. After notice and hearing the court granted appellee judgment for $1,220.\\nAppellant duly perfected his appeal.\\nOpinion\\nIn view of the disposition we have concluded to make of this- case it becomes unnecessary to state the findings of the jury on the facts submitted more than to say that appellant participated as an underwriter in the meeting of the underwriters of the Lloyds of Texas on April 14, 1930 at the Baker Hotel in Dallas, Texas, the trial court having entered judgment for appellee on appellee's motion non obstante veredicto for the sum of $1,220, from which judgment this appeal is prosecuted.\\nIn the discussion we make of the case we think the issues submitted in appellant's several propositions and appellee's counter propositions are sufficiently made to appear, without stating them severally. There is but little, if any, controversy on the facts.\\nDr. Mason's sole defense, as we view it, consists of a plea of revocation of his subscription contract by his letters of May 2nd and May 4th, 1929.\\nAppellee by supplemental petition, as stated, plead that appellant was prohibited from asserting his plea of revocation by reason of the finding of the Master in Chancery in the original suit, in which suit - appellant was a party; that under proper Orders of Reference the Master in Chancery found that appellant did not terminate his subscription contract until April 14, 1930; that appellant did not reserve any exception to the finding of the Master in Chancery or to the order of the Court confirming and adopting such finding.\\nThe statement of facts covers about 227 pages and is too extensive to copy, even briefly, the facts therein contained.\\nAppellant was a party to the original suit and filed answer in which the Lloyds of Texas was placed in the hands of a receiver, and where the Orders of Reference to the Master were made and his report approved and confirmed, and the findings therein \\\"ratified and adopted as the acts and findings of the court\\\" (the 44th District Court of Dallas County).\\nOn the 9th day of February, 1935, in the same proceedings the court referred additional matters to the Master for the purpose of hearing, determining and certifying his findings to.the Court the various underwriters of the Lloyds of Texas, the amount of each underwriter's subscription to the-guaranty fund of the Association, the date each became an underwriter, and the date his relationship terminated. The order provides that \\\"upon conclusion of such hearings that the Master embody his findings, together with those previously made in this cause,'in a written report, and file same with the Clerk of this Court on or before the 18th of February, A. D. 1935,\\\" and extended the time for the filing of the report. The order of the court further provided: \\\"All exceptions and objections to the Master's Report shall be filed herein on or before the 23rd day of February, A. D. 1935, on which date such exceptions and objections as have been filed will be heard and the Master's report be approved and confirmed in whole or in part, or rejected in whole or in part, as the facts and justice of the case may determine.\\\"\\nThe Master's report was duly filed. The Master found in his report that appellant became an underwriter on January 18, 1929, and that he terminated his subscription on April 14, 1930. In addition to the foregoing recitation in the report, the following appears in the Master's report: \\\"I find that the Lloyds of Texas went into liquidation on April 14, 1930, and that the subscribers withdrew from any liability on further business written after that date, and that all of the subscribers withdrew their subscriptions on that date,\\\" except W. O. Woten of Abilene, who withdrew in 1929.\\nThe report of the Master in Chancery was, by the Court adopted as the findings of the Court. Appellant did not appear and contest the approval of the report, nor did he reserve any exception to the action of the Court in adopting same as its findings.\\nWe do not understand that appellant controverts any of the above statements, but he contends in effect that the Master's report cannot deprive him of the right in this suit to have issues therein found adversely to him inquired \\\"into anew by a jury. On the contrary, appellee submits that in the absence of timely exception to the Master's report and the order of the Court confirming the report, the Master's report is conclusive on the facts reported and confirmed.\\nAppellant refers us to, and copies therefrom at length in his brief, San Jacinto Oil Company v. Culberson, 100 Tex. 462, 101 S.W. 197, the opinion by Judge Williams ; he also refers to Dwyer v. Kalteyer, 68 Tex. 554, 5 S.W. 75, the opinion by Judge Gaines. We have carefully reviewed each of those cases in connection with other cases referring to them, such as Kalteyer v. Wipff, 92 Tex. 673, 52 S.W. 63, the opinion also by Judge Williams; also the case of Arlington Heights Realty Company v. Citizens' Railway & Light Co., Tex.Civ.App., 160 S.W. 1109, 1117; Kemp- tier v. Galveston County, 76 Tex. 450, 13 S.W. 460.\\nWe understand the opinion of Judge Williams as holding in the San Jacinto Oil Co. v. Culberson Case that it was not necessary in the hearing before the Master in Chancery to except to the Master's rulings and to embody those rulings in exceptions before the Court, but that it was sufficient if, after the report of the Master was filed and before it was approved and adopted by the Court, the exceptions to the report should then be filed, and that it is at the time of the hearing of the report before the Court and not the Master that the matters and findings expressed in the report may be inquired into anew, and the question of fact at issue be then determined.\\nWe understand the courts uniformly to hold that in the absence of an exception to the Master's report the report of the Master becomes matters adjudicated.\\nWe have concluded that the case should be affirmed, and it is so ordered.\\n.Affirmed.\"}"
\ No newline at end of file
diff --git a/tex/10261616.json b/tex/10261616.json
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+"{\"id\": \"10261616\", \"name\": \"YOUNG v. STATE\", \"name_abbreviation\": \"Young v. State\", \"decision_date\": \"1931-02-11\", \"docket_number\": \"No. 13976\", \"first_page\": \"991\", \"last_page\": \"996\", \"citations\": \"46 S.W.2d 991\", \"volume\": \"46\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T20:54:51.954131+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"YOUNG v. STATE.\", \"head_matter\": \"YOUNG v. STATE.\\nNo. 13976.\\nCourt of Criminal Appeals of Texas.\\nFeb. 11, 1931.\\nState\\u2019s Rehearing Granted Jan. 20,1932.\\nAppellant\\u2019s Rebearing Denied March 9, 1932.\\nR. L. Neal and J. F. Hair, both of San Antonio, for appellant.\\nK. K. Woodley, Dist. Atty., of Sabinal, and Lloyd W. Davids on, State\\u2019s A tty., of Austin, for the State.\", \"word_count\": \"4567\", \"char_count\": \"25696\", \"text\": \"MORROW, P. J.\\nThe offense is murder; penalty assessed at confinement in the penitentiary for a period of fifty years.\\nThe evidence is such as to show that Johnnie W. Bradshaw was murdered, and that Homer Edwards and the appellant were present at the time the offense was committed. Appellant claims that Edwards committed the offense and that he (appellant) was merely present and took no part in it. The homicide occurred on April 9,1930. The appellant had twice been adjudged a lunatic, first in February, 1929, and again in January, 1930. Judgments, regular on their face, showing that the appellant was insane, were introduced in evidence. Some ten days before the homicide, the appellant and Edwards, who was likewise an inmate of the insane asylum, had escaped therefrom.\\nThe court instructed the jury on the defense of insanity. Paragraph 10 of the charge reads as follows: \\\"The judgments of the County Court in Bexar County, Texas, which have been introduced in evidence before you, \\u2022adjudging that the defendant was insane on the 26 day of February, 1929, and also on the 8 day of January, 1930, established the fact that he was insane on the 8 day of January, 1930 and raise the presumption that he was insane at the time Johnnie W. Bradshaw was killed, but whether he was sane or insane at the very time of such killing is a question which it is your exclusive province to determine from all the facts and circumstances in evidence before you.\\\"\\nUnder the facts, the jury should have been instructed, in substance, that by reason of the judgments of insanity, the presumption existed that the appellant was insane at the time the offense was alleged to have been committed, and that the burden was upon the state to prove from the evidence, beyond a reasonable doubt, that at the time the deceased was killed the appellant was sane, and, rfnless the state did so prove, the jury could not convict the accused of murder. In article 34, P. 0.1925, it is said: \\\"No act done in a state of insanity can be punished as \\u00e1n offense.\\\"\\nThat such is the law of this state has been declared many times. See Witty v. State, 69 Tex. Cr. R. 125, 153 S. W. 1146; Yantis v. State, 95 Tex. Cr. R. 541, 255 S. W. 180; Davidson v. State, 109 Tex. Cr. R. 255, 4 S.W.(2d) 74, and precedents there cited.\\nIn the succeeding paragraph of its charge the court instructed the jury on insanity, using the following language: \\\"Ordinarily every person is presumed to be sane until the contrary is shown by proof, but in this ease the defendant is presumed to have been insane at the time of the killing, and, therefore, not responsible for any act that he may have committed, until the contrary is shown by evidence beyond a reasonable doubt. So, even though you should find and be satisfied from the evidence under the charges hereinbefore given you that the defendant committed the act charged in the indictment, either alone or as a principal with one, Homer Edwards, still you cannot convict the defendant unless you further find and believe from the evidence beyond a reasonable doubt that the defendant was sane at the time of the killing.\\\"\\nThe part of the charge last quoted above manifests the intention of the learned trial judge to give a fair charge on the law of insanity. It is believed, however, that, when paragraphs 10 and 11 are considered together, they are calculated to leave the jury in doubt as to the burden of proof. The appellant had been adjudged insane and placed in a lunatic asylum. He had not been discharged. The judgments of insanity had not been set aside. He had recently escaped from the lunatic asylum. The evidence against him is wholly circumstantial, and the facts are such as to require for his protection that the jury be given a charge in which there could be no mistake that they would understand, that the burden of proving that the appellant was sane at the time the criminal act is charged to have taken place is upon the state, and, unless the burden was discharged, there could be no conviction.\\nThe sufficiency of the evidence to support the verdict is very earnestly challenged by the appellant's counsel. A reversal of the case upon other grounds renders it improper for us to express any opinion with reference to the sufficiency of the evidence.\\nEor the reasons stated above, the judgment is reversed, and the cause remanded.\"}"
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diff --git a/tex/10261772.json b/tex/10261772.json
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--- /dev/null
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+"{\"id\": \"10261772\", \"name\": \"NELSON v. STATE\", \"name_abbreviation\": \"Nelson v. State\", \"decision_date\": \"1930-11-26\", \"docket_number\": \"No. 13656\", \"first_page\": \"443\", \"last_page\": \"444\", \"citations\": \"35 S.W.2d 443\", \"volume\": \"35\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T01:52:23.665970+00:00\", \"provenance\": \"CAP\", \"judges\": \"HAWKINS, J., absent.\", \"parties\": \"NELSON v. STATE.\", \"head_matter\": \"NELSON v. STATE.\\nNo. 13656.\\nCourt of Criminal Appeals of Texas.\\nNov. 26, 1930.\\nRehearing Denied Feb. 11, 1931.\\nReynolds & Heare, of Shamrock, and J. Everett Cline, of Fort Worth, for appellant.\\n\\u2022 Lloyd W. Davidson, State\\u2019s Atty., of Austin, for the State.\", \"word_count\": \"720\", \"char_count\": \"4063\", \"text\": \"MARTIN, J.\\nOffense, the unlawful sale of intoxicating liquor; penalty, one year in the penitentiary.\\nProsecuting witness, Conway, testified to the unconditional sale to himself by appellant of one quart of whisky, for which he paid him $2.50. He was corroborated by another witness.\\nThe chief contention made on this appeal is the alleged error of the court in failing to define the term \\\"sale.\\\" As already indicated, the testimony for the state showed an absolute sale. Appellant testified that he was standing near when the prosecuting witness asked for whisky for medicinal purposes, and that he then said:\\n\\\"I told him that he couldn't buy it but if he would come in the house I would let him have what I had, if it would do him any' good. There was nothing said about the price of it or paying for it, or borrowing it or paying it back or anything of that kind, but it was in my mind that he would replace the whisky.\\\"\\nWe do not think that the quoted testimony called for any charge of the character suggested. The testimony for the state made out a sale, and that for the appellant showed a gift, of the whisky. There was not, in our opinion, any suggestion of barter or exchange or any character of transaction other than either a straight sale' or gift of the whisky in question. Under such circumstanc'es, it was not necessary to define the term \\\"sale.\\\" Asher v. State, 102 Tex. Cr. R. 162, 277 S. W. 1099; Stephens v. State, 50 Tex. Cr. R. 251, 96 S. W. 7; Young v. State, 92 Tex. Cr. R. 277, 243 S. W. 472.\\nSpecial charge No. 6 requested the court to submit the issue of the transaction being only a gift, which was apparently appellant's theory of the case. The court refused to give this charge, but his action was not excepted to, and, in the absence of such, the question cannot be reviewed. Linder v. State, 94 Tex. Cr. R. 317, 250 S. W. 703.\\nFinding no error in the record, the judgment is affirmed.\\nPER CURIAM.\\nThe foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.\\nHAWKINS, J., absent.\"}"
\ No newline at end of file
diff --git a/tex/10262861.json b/tex/10262861.json
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--- /dev/null
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+"{\"id\": \"10262861\", \"name\": \"PARSONS v. CITY OF FORT WORTH et al.\", \"name_abbreviation\": \"Parsons v. City of Fort Worth\", \"decision_date\": \"1931-11-11\", \"docket_number\": \"No. 4100\", \"first_page\": \"464\", \"last_page\": \"465\", \"citations\": \"44 S.W.2d 464\", \"volume\": \"44\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T21:15:28.498695+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"PARSONS v. CITY OF FORT WORTH et al.\", \"head_matter\": \"PARSONS v. CITY OF FORT WORTH et al.\\nNo. 4100.\\nCourt of Civil Appeals of Texas. Texarkana.\\nNov. 11, 1931.\\nRehearing Denied Nov. 19, 1931.\\nJ. M. Willis and C. F. Clark, both of Fort Worth, for appellant.\\nCecil Morgan and Alva W. Bound, both of Fort Worth, for appellees.\", \"word_count\": \"1041\", \"char_count\": \"5807\", \"text\": \"SELLERS, J.\\nThis was a suit filed by the city of Fort Worth for the use and benefit of Colglazier, Huff & Co., paving contractors, against Ed Y. Parsons and wife, Mollie B. Parsons, on a paving assessment certificate issued against the defendants for the paving of Allen avenue in the city of Fort Worth; said avenue being an alley back of defendants' property and shut off from defendants' property by a fence or wall of Chase court. The certificate was for the sum of $502.39, and provided for interest and attorney's fees. It was admitted that the property of defendants was a homestead and the separate property of the defendant Mollie B. Parsons. The case was tried to the court without the intervention of a jury, and resulted in a personal judgment for the plaintiffs against the defendant Mollie B. Parsons for the sum of $706.35, to which judgment the defendant Mollie B. Parsons excepted and has duly prosecuted this appeal. The plaintiff pleaded, with reference to notice, as follows: \\\"That said resolution also prescribed a hearing to be given to said property owners and fixed a day for said hearing to be held on the 9th day of August, 1927, at nine A. M. in the City Council chambers in the City Hall, Fort Worth, and directed the City Secretary to issue notices to each of the property owners, their agents and attorneys or representatives,' including the defendants herein, Mollie B. Parsons and Ed V. Parsons, by advertising in the Fort Worth Press, a daily newspaper of general circulation in the City of Fort Worth and surrounding country by publishing said resolution and notice for five consecutive days prior to said hearing. That said notices were duly published in said paper for five consecutive days, to-wit, on and from the 25th day of July, 1927, to and including the 29th day of July, 1927. And said notices advised said defendants of said hearing on the 9th day of August, 1927, in the Council chambers in the City Hall of Fort Worth at nine A. M., and of the proposed assessment of $\\u215e02.39 against him and his property and of the creation of a lien thereon.\\\"\\nIt was further alleged that on the 9th day of August, 1927, no quorum being present, said meeting was postponed on the 16th day of August, 1927. The defendants specially pleaded as follows:\\n\\\"And defendants further say that no such hearing was held pursuant to any notice given thereof and all the proceedings by which said assessment was made against these defendants, or either of them, for the cost of said improvements are void and of no force and effect.\\n\\\"Defendants deny that the meeting of the City Council of the City of Fort Worth to have been held on the- 9th day of August, 1927j when the hearing in this matter is alleged to have been had for the benefit of the property owners affected by said alleged improvements was postponed until August 16, 1927, and deny that any hearing on said resolution pursuant to any notice thereof was ever held by said City Council on said resolution.\\\"\\nThe- testimony of the city secretary to the following effect is undisputed: \\\"My name is I. L. Yan Zandt, Jr. I am City Secretary of Fort Worth. I keep the Minutes of the proceedings of the City Council of the City of Fort Worth. I occupied that position and kept the Mitotes and records of the City in the year 1927. I have here a part of the Minutes of the meeting of the City Council of the City of Fort Worth during the month August, 1927. I do not have the Minutes \\u00f3f a meeting, of August 9, 1927. There was no meeting that date. * \\u215c \\u215c They did not assemble at all. There is no Minute \\u00f3f an assembly on August 9th at all.\\\"\\nUnder articles 1093 and 1094 of the Revised Statutes of 1925, it is mandatory and jurisdictional that a' city comply strictly with the requirements of said articles before a valid assessment may be had against an owner of abutting property for public improvement.\\nThe sufficiency of the notice given appellant by the appellee is not questioned. The notice required the property owners to appear before the council on August 9, 1927, at 9 o'clock a. m. in the chambers of the city council at the city hall, Fort Worth, Tex.\\nThe vice in the proceedings is in the failure of the city council to meet at the time and place the notice required the property owners to appear. The evidence on this point is undisputed. There, was no meeting of the city council on August 9, 1927, and, so far as the statement of facts discloses, there is no explanation of why the meeting was not held. The city council, having failed to meet on the 9th day of .August, never acquired jurisdiction to make an assessment against appellant's property, Gill v. City of Oakland, 124 Cal. 335, 57 P. 150, and the attempted assessment made on August 16, 1927, was void. The rights of property owners in such cases are too sacred to hold otherwise.\\nIf the city council had met on August 9th, and had, in fact, adjourned the meeting to August 16th, a minute of the proceeding would have been made by the city secretary, which would have constituted sufficient notice to the property owners of the meeting to be held on August 16th, Crabb et al. v. Uvalde Paving Co. (Tex. Com. App.) 23 W.(2d) 300, but this was not done. No new notice having been given, the property owners were without any notice, as required by law, of the meeting of August 16, 1927.\\nThe disposition to be made of this appeal makes the discussion of other assignments unnecessary.\\nThe judgment of the trial court will be reversed, and judgment here rendered for appellant.\"}"
\ No newline at end of file
diff --git a/tex/10267781.json b/tex/10267781.json
new file mode 100644
index 0000000000000000000000000000000000000000..89e2daefe6cd65f1dec7702ce13f173f780d416c
--- /dev/null
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+"{\"id\": \"10267781\", \"name\": \"SMITH v. STATE\", \"name_abbreviation\": \"Smith v. State\", \"decision_date\": \"1934-06-20\", \"docket_number\": \"No. 16908\", \"first_page\": \"1087\", \"last_page\": \"1088\", \"citations\": \"72 S.W.2d 1087\", \"volume\": \"72\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:55:08.247560+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SMITH v. STATE.\", \"head_matter\": \"SMITH v. STATE.\\nNo. 16908.\\nCourt of Criminal Appeals of Texas.\\nJune 20,1934.\\nW. W. Ballard, of Wichita Falls, for appellant.\\nLloyd W. Davidson, State\\u2019s Atty., of Austin, for the State.\", \"word_count\": \"1313\", \"char_count\": \"7343\", \"text\": \"LATTIMORE, Judge.\\nConviction for conveying tools, etc., to prisoner in jail; punishment, two years in the penitentiary.\\nThe sheriff of Young county testified that on the 3d of November, 1933, a package came by mail to the jail for Clifford Smith, investigation of which revealed that same contained a cake in which were found eight hack saws and a letter. A typewritten letter appearing in the record is unsigned and has no other address except, \\\"Your Pal.\\\" It is to be regretted that more care was not exercised in the trial of this cas\\u00e9 in identifying documents which were exhibited to witnesses and which are not marked or brought forward in such manner as that we may be able to identify them. Examining the testimony of Sheriff Foster, we observe the following statement, referring to the wrapper around the box mentioned: \\\"(The State here offers the wrapper in evidence.)\\\" If there was anything about the wrapper which would aid in solving the issues, same is not brought forward in this record. Later, on the same page of the statement of facts, apparently referring to the letter which was in the cake mentioned, appears the following: \\\"(The state here offers the letter in evidence.)\\\" There is nothing from which this court can learn what mark of identification was put upon either the wrapper or the letter referred to. The same observation applies to a wrapper on another package which seems to have been taken off this appellant, the wrapper being offered in evidence without any mark of identification, nor can we tell what became of same. The state called Mr. Hammond, a rural mail carrier of Wichita county, who said that on the 3d day of November, 1933, two girls or young women were at a mail box to which he came in his rounds, and they handed him a package to be mailed, and gave him money to pay for the postage. He identified the wrapper and box shown him as the one handed him by them; but if there is any connection between \\\"this package\\\" and any package identified by any other witness, further than that he says the package delivered to him was addressed to Clifford Smith at Graham, Tex., care the county jail, it does not appear in the record. Mr. Hammond said he did not see the appellant or any other person at the time the package referred to was delivered to him by the two young women. The state recalled Mr. Foster, who said that if Evalee Adams and Mabel Hartman were ever in the jail at Graham he did not know it. He said that Clifford Smith had women callers while he was in. jail, and these two young women may have been among the number, but he could not say whether they had been there or not. The state then identified two indictments, one against Clifford Smith and the other against this appellant, bearing date of September 5, 1933. It was shown that appellant had been in jail with Clifford Smith, but was released some time prior to November 3, 1933, the alleged date of the delivery of the saws and letter. At this point the state rested its case-\\nAppellant introduced Mr. Yates, a deputy sheriff of Young county, who said that he had admitted Mabel Hartman and Evalee Adams to the county jail while Clifford Smith was there. Appellant introduced Clifford Smith, who said the two women mentioned had visited him in jail, and that he had received letters from them. He was shown a letter which he received from Mabel Hartman and said he had seen her write and knew it was her handwriting. What became of this letter, and whether it was introduced in evidence, does not appear. Witness refers to various letters, and winds up his direct testimony by saying: \\\"I have seen the defendant write his name and sign his signature. This isn't his handwriting you are showing me. In my opinion this is the defendant's handwriting on State Exhibit No. 3.\\\" Whether State-Exhibit No. 3 is the letter which came in the-cake is left to conjecture and inference. On cross-examination he repeated his ability to-identify the handwriting of Mabel Hartman, and being shown what is denominated De fendant's Exhibit No. 2, be says it appears to be from Mabel Hartman, but he would not testify whether it was or not in her handwriting. Shown another letter, he says he thinks it is in Mabel Hartman's handwriting, Shown another letter, he said that it did not look like Evalee Adams' handwriting. Shown a letter by defense counsel, he says that it was the signature of Mabel Hartman on that letter. What letter she was shown is left blank by this record. The defense introduced Mrs. Adams, the mother of Evalee Adams, who said that on the 3d of Novemr ber she, Evalee, and Mabel were at her house, and that no one else was there; she stayed at home all day; she did not see this appellant around the house that day; that Mabel and Evalee told her they were going to bake a cake; she saw them bake part of the cake; she repeated she did not see appellant there. Shown a letter apparently written by Evalee Adams, witness said that it was in Evalee's handwriting. Shown another letter and asked if it was Mabel Hartman's handwriting, she said she could not tell who wrote that. We know nothing of them because they are not before us. At this juncture both sides closed.\\nWe find then a typewritten document which seems to be styled State Exhibit No. 3, also copies of two indictments marked State Exhibits 4 and 5, then a document entitled Defendant's Exhibit No. 3, which appears to be 'two or three lines written with a pen and ink, the original appearing to be sent up, addressed to no one and signed by no one.\\nWe have tried as best we can to determine what documents are referred to or identified with any such certainty as would justify their being used as evidence upon which to secure a conviction of a citizen of this state for a felony, without success. No witness testified that the typewritten document appearing In this record as State Exhibit' No. 3 was ever in possession of appellant, or written by him, or that it was in his handwriting. Apparently it was the state's theory that the recitals in said letter must be taken as things which could not have been written but by appellant. We do not think that a safe rule of evidence by which to determine the admissibility of a written statement. The document was not found on appellant's person or in his possession. The postman who testified for the state did not see appellant in connection with the mailing of the package containing the saws, the cake, or the letter. Neither of the two young women who were present at the mailing of the package testified. The mother of one of them said she heard the two girls talking 'about baking a cake; that appellant was not present at her house at that time nor that day. There was no expert comparison of any kind between any real writing or signature of this appellant with the address on the package, or with the letter found inside the package. This case was submitted to the jury on the law of circumstantial evidence, and we do not think the legal testimony shown in the record to be such as to ex-elude every other reasonable hypothesis except the guilt of the accused,\\n\\u215b judgment will be reversed, and the cause remanded.\"}"
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+"{\"id\": \"10280481\", \"name\": \"TANTON et ux. v. STATE NAT. BANK OF EL PASO et al.\", \"name_abbreviation\": \"Tanton v. State Nat. Bank of El Paso\", \"decision_date\": \"1931-11-12\", \"docket_number\": \"No. 2587\", \"first_page\": \"957\", \"last_page\": \"963\", \"citations\": \"43 S.W.2d 957\", \"volume\": \"43\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T17:03:23.466424+00:00\", \"provenance\": \"CAP\", \"judges\": \"PELPHREY, C. X, and HIGGINS and WALTHALL, JJ.\", \"parties\": \"TANTON et ux. v. STATE NAT. BANK OF EL PASO et al.\", \"head_matter\": \"TANTON et ux. v. STATE NAT. BANK OF EL PASO et al.\\nNo. 2587.\\nCourt of Civil Appeals of Texas. El Paso.\\nNov. 12, 1931.\\nRehearing Denied Dec. 3, 1931.\\nGowan Jones and C. M. Wilchar, both of El Paso, for appellants.\\nO. R. Armstrong, John T. Hill, J. E. McKenzie, and H. R. Gamble, all of El Paso, for appellees.\\nPELPHREY, C. X, and HIGGINS and WALTHALL, JJ.\", \"word_count\": \"5459\", \"char_count\": \"30597\", \"text\": \"This is a suit by Tanton and wife to recover a tract of land containing about sixty-eight acres in El Paso county.\\nThe suit was filed February 17, 1930, against the devisees of M. W. Stanton, deceased, and his independent executor, the State National Bank of El Paso, Tex. The petition was in three counts. It was alleged that plaintiff resides in El Paso county, Tex., and has been a resident and bona fide citizen and inhabitant thereof for morp than twenty years prior to the filing of the suit. The first count was in the usual form of the action in trespass to try title. The second count was in the alternative and adopted all allegations in the first count not inconsistent with the second count, and pleaded specially plaintiff's record title and that the property was the homestead of plaintiff from 1911 until at least on or about August 29, 1921, at which last date plaintiff .by warranty deed conveyed same to R. W. Humphrey; that plaintiff at no time has owned or acquired any other homestead ; that, after the warranty deed to Humphrey, said Humphrey by and through tenants entered into peaceable and adverse possession under title and color of title and remained in peaceable and adverse possession until ejected in 1926, and pleaded the three-year statute of limitation; that Humphrey died in 1926, and in February, 1928, his heirs by warranty deed conveyed the premises to plaintiff; plaintiff denied that defendants had or ever had any right, legal or equitable, in the property, and pleaded the four-year statute of limitations against any right of defendants. The third count adopted all allegations in the first and second counts not inconsistent therewith, and in the alternative pleaded that if the court should decide that any right, legal or equitable, remained in plaintiff after plaintiff conveyed the property to Humphrey, then in that event he alleged the premises to be his homestead, not only up until the time of the deed from plaintiff to Humphrey, but until the present time.\\nTanton acquired the land in 1910. In January, 1921, Tanton's wife divorced him. By warranty deed dated August 20, 1921, filed for record August 29, 1921,. Tanton conveyed the land to R. W. Humphrey. In this deed Tanton is described as a single man of Logan county, Okl., where the deed was executed and acknowledged.\\nOn August 22, 1921, M. W. Stanton filed suit in the Thirty-Fourth district court of El Paso county, against Tanton in the petition averring that Tanton was a nonresident of Texas, residing in Logan county, Okl. In the first count of the petition Stanton claimed ah indebtedness of several thousand dollars due him by Tanton, and also asserted an equitable lien securing the same upon the land now in controversy. He prayed judgment for the debt and that the equitable lien of plaintiff upon the land and premises be found, established, and foreclosed to secure payment of said indebtedness, and for general relief.\\nBy second count, in the alternative, he declared upon a quantum meruit for like amount, and prayed judgment for said debt.\\nAn attachment was issued and levied upon the land August 31, 1921.\\nAt the September term, 1921, judgment was rendered in Stanton's favor. The judgment recited and found due service of process on August 24, 1921, by notice to nonresident, and that defendant had failed to appear and had defaulted. The judgment shows that it was rendered-after hearing the plaintiff's petition read and the evidence adduced. The judgment found and established \\\"in favor of plaintiff, and against the defendant, an indebtedness for the said sum of $5,796.15, together with interest thereon from this date, at the rate of six per cent per annum, and it is by the Court, therefore, further ordered, adjudged and decreed, under the allegations of the petition of plaintiff and evidence, oral and documentary, that the lien of plaintiff securing the payment of said sum, interest and cost of suit, as said lien existed on the 25th day of September A. D. 1917, and upon any date or time since said date, be and the same is hereby found and foreclosed upon that cer tain real estate,\\\" then follows description of land here involved.\\nThen follows also foreclosure of the attachment upon the land; also, direction that order of sale be issued. By sheriff's deed dated November 2, 1921, all of the \\\"right, title and interest which the said Nathan W. Tanton hud on the 25th day of September, A. D. 1917, or at any time afterwards, of, in and to\\\" the land was conveyed to Stanton for the sum of $3,952.52.\\nB.. W. Humphrey died February 27, 1926, and by deed dated February 15, 1928, his heirs reconveyed the land to Tanton.\\nUpon an instructed verdict, judgment was rendered that the plaintiffs take nothing by their suit, and that the defendants go hence without day.\\nWith reference to the deed which he executed to Humphrey on August 20,1921, Tan-ton testified:\\n\\\"When Stanton sued me X went to see a lawyer up there in Oklahoma and did exactly as he told me to. I went to him in Muskogee. He told me to convey the land to Mr. Humphrey -but hold my homestead rights in the property. That is what X did, and that is what I testified to on the previous trial of this case, in substance. I had an agreement with Mr. Humphrey that he would convey the property back to me any time I wanted it. His heirs conveyed the land back to me. I did this an the advice of my lawyer.\\n\\\"That was in Guthrie, Logan County. I had an agreement with Mr. Humphrey when the deed was made that it was not to be a bona fide transaction, I was just placing the title in him to hold for me, and the agreement was that somp time in the future he would return it \\u2014 I never gave up possession of the land. I delivered the deed to him, he sent it here to put on record. I did. not send it. Mr. Humphrey did not pay me anything for the deed. The bank in Oklahoma didn't send the deed nor was it escrowed. It wasn't turned back to me and I haven't testified so in previous litigation. Mr. Humphrey didn't pay me anything for the deed.\\\"\\nIt is well settled in this state that a deed absolute upon its face may be shown by parol to be intended as a trust. The testimony quoted shows that Humphrey held the land in trust for Tanton to be recoveyed upon request. Tanton's testimony shows that the superior equitable title remained in him. This superior title passed, by the foreclosure proceedings, to Stanton if such proceedings are valid.\\nMuch is said by appellants in their brief about the necessity of appellees showing that the deed was in fraud of creditors, and this cannot be done because the land was Tanton's homestead, was exempt as such, and the voluntary conveyance therefore not in fraud of creditors.\\nTanton contends that the land has always been his homestead and, if this be true, then the conveyance to Humphrey was not'in fraud of creditors, and the trust in the land in his favor a valid one. That trust retained in him the superior equitable title to the land which passed to Stanton, and the legal title subsequently acquired by Tanton from the Humphrey heirs is now and always has been subordinate to the equitable title.\\nIf the land was not Tanton's homestead, then the deed was fraudulent and void as to his creditor, Stanton. Tanton's own testimony so shows. Upon this phase of the case we hold that the superior equitable title passed to Stanton by the foreclosure proceedings, if these proceedings were valid, and Tan-ton cannot defeat this equitable title by simply showing that he has reacquired the bare legal title from the heirs of his trustee.\\nPassing now to the foreclosure proceedings, we will first consider the validity of the foreclosure of the so-called equitable lien.\\nThe petition is very lengthy. It was an action for debt amounting to over $5,000, and allegations intended to show an \\\"equitable\\\" lien upon the land, which it was prayed be found, established, and foreclosed to secure the payment of the debt.\\nThe facts alleged in the petition were insufficient to show a lien upon the land, and this feature of the petition was subject to general demurrer. But this does not subject the judgment to collateral impeachment unless the deficiency is one which affects the jurisdiction of the court and deprives it of jurisdiction. 1 Freeman on Judgments (5th Ed.) \\u00a7 365; 1 Black on Judgments (1st Ed.) \\u00a7 269, 34 C. J. p. 554, \\u00a7 852 and p. 560, \\u00a7 860; Holmes v. Buckner, 67 Tex. 107, 2 S. W. 452; Moore v. Perry, 13 Tex. Civ. App. 204, 35 S. W. 838; Pearson v. Lloyd (Tex. Civ. App.) 214 S. W. 759; Hart v. Hunter, 52 Tex. Civ. App. 75, 114 S. W. 882.\\nThis matter is discussed at some length by Judge Freeman at \\u00a7 365, from which these excerpts are taken:\\n\\\"For jurisdiction does not depend upon the sufficiency or fullness of the statement of the cause of action pleaded, nor is it of any importance collaterally whether the pleading does or does not state a cause of action, providing it- sets forth a case within the court's powers.- If a cause is pleaded belonging to a general class over which the court's authority extends, then jurisdiction attaches and the court has the power to determine whether the pleading is good or bad, and to decide upon its sufficiency as a statement of a cause of action.\\n\\\"It would be difficult to imagine a case in which a court having jurisdiction in other respects could, not render a judgment free from collateral attack, because of defects in or insufficiency of the pleading. A pleading which is adequate in bringing the subject matter before the court may be faulty in many respects, even in its averments of material elements of the cause, and yet sustain the judgment against impeachment.\\\"\\nThis doctrine, of course, has no application to a case in which the judgment is upon a matter not raised by the pleadings. In other words, a judgment without any pleading to support it. 1 Ereeman on Judgments (5th Ed.) 355; Hart v. Hunter, supra.\\nThe petition sought to recover a debt within the jurisdiction of the district court and to foreclose a lien on land. But in this connection appellants assert that under the rulings in' Higgins v. Bordages, 88 Tex. 458, 31 S. W. 52, 803, 53 Am. St. Rep. 770, and Barnett v. Eureka Paving Co. (Tex. Com. App.) 234 S. W. 1081, the court had no jurisdiction to foreclose the asserted lien because of the homestead character of the land which was apparent upon the face of the petition.\\nWe think the allegations show that the land was a homestead at the time the lien was attempted to be impressed upon it. In this respect also it was subject to general demurrer. But the petition further shows that Tanton had been previously divorced from his wife.\\n\\\"That said plaintiff further avers that after the appeal aforesaid, and after the writ of error was refused, as aforesaid, the said defendant (referring to Tanton) having long prior thereto abandoned his residence in the County of El Paso and State of Texas, his cross-bill for divorce was dismissed. \\\"\\nThe petition also averred \\\"that said defendant Nathan W. Tanton. resides in town of Guthrie, County of Logan and State of Oklahoma, and is now a non-resident of the State of Texas.\\\"\\nThe plain import of the petition is that the homestead character of the land no longer existed at the time the suit was filed because of abandonment.\\nIn the Higgins and Barnett Cases the homestead character of the land, at the time the lien was attempted to be fixed, and when the foreclosure suits were filed, was apparent upon the face of the. petition, and it was held that for this reason the court had no jurisdiction to foreclose the liens. The defect in the pleadings was jurisdictional.\\nThe present case is more like Gehret v. Hetkes (Tex. Civ. App.) 16 S.W.(2d) 395; Id. (Tex. Com. App.) 36 S.W.(2d) 700, 701. In that case Hetkes obtained a judgment of foreclosure against Gehret and wife upon a paving lien. The Gehrets later sought to enjoin the foreclosure sale upon the ground that the land was their homestead and the judgment void in so far as 'it foreclosed a lien against the property. In denying the relief sought, it was said by the Commission of Appeals:\\n\\\"Neither the petition, citation, nor judgment contains any intimation that the property was Gehret's homestead; it appears from the record itself that the court had jurisdiction of the parties to, and the subject-matter of, the suit. The judgment is therefore not void.\\n\\\"A voidable judgment is one rendered by a court having jurisdiction but which was irregularly and erroneously rendered. Such a judgment is valid until vacated by a direct proceeding instituted for that purpose or until reversed on appeal or writ' of error. Murchison v. White, 54 Tex. 78; Wheeler v. Ahrenbeak, 54 Tex. 535; Odie v. Frost, 59 Tex. 684; Buchanan v. Bilger, 64 Tex. 589.\\n\\\"Whether a judgment of a court of record is void or voidable must be determined from an inspection of the record. If the record discloses that the court rendering such judgment was without jurisdiction, the same is void and open to attack in a collateral proceeding; if it does not, the judgment is merely voidable and can be attacked only in a direct proceeding. Morris v. Halbert, 36 Tex. 19; Maury v. Turner (Tex. Com. App.) 244 S. W. 809; Ringgold v. Graham (Tex. Com. App.) 13 S.W.(2d) 355.\\n\\\"Higgins v. Bordages, 88 Tex. 458, 31 S. W. 52, 55, 803, 53 Am. St. Rep. 770, and Barnett v. Eureka Paving Co. (Tex. Com. App.) 234 S. W. 1081, 1082, cited by plaintiffs in error, are not in conflict with the rule announced above. In both those cases want of jurisdiction appeared upon the face of the record.\\n\\\"This is apparent in the quotation from Judge Brown's opinion in the Borddges Case, wherein he said, 'These facts, showing want of jurisdiction of the subject-matter of the suit, appeared upon the face of the record'; and from Judge Kittrell's opinion in the Barnett Case, discussing the question that the petition showed on its face that the property in question was defendant's homestead, wherein he said, 'It is but juggling with words to say that it did not appear in the original suit that foreclosure of the lien was sought against a homestead,' and 'the very terms of the decree itself show that the court was dealing with the property as homestead property.'\\n\\\"It is plain from those quotations that in both said cases the records affirmatively showed the lack of jurisdiction over the subject-matter, whereas here the record in the judgment attacked is silent on the subject of Gehret's homestead claim.\\n\\\"We think that the original judgment is not void, but only voidable at most, and the term of the court at which it was rendered having expired, it could be set aside only by bill of review brought by Gehret and wife. Gross v. McClaran, 8 Tex. 341; McKean v. Ziller, 9 Tex. 58.\\\"\\nIn Nichols v. Dibrell, 61 Tex. 539, Chief Justice Willie said:\\n\\\"The only question then is, Was the homestead right such a defense as might have been put in issue and decided in the former action? \\u215c. \\u215c *\\n\\\"The homestead right is not of a character to make it an exception to the rule we have announced as to the plea of res judicata. It has been frequently attempted in this state to exempt it from the operation of the rule, but it has always been held that when it might h\\u00e1ve been pleaded in the former suit it was too late to set it up in the latter. Thus, where a mortgage has been foreclosed upon the homestead and a second suit has been brought by the purchaser at the mortgage sale, it is held that it is too late to set up the homestead right as a bar to the last action. See authorities already cited.\\\"\\nAnd in Shonaker v. Citizens, etc. (Tex. Civ. App.) 8 S.W.(2d) 566, 568 (writ refused) it was said:\\n\\\"The homestead exemption does not arise as a matter of right, so as to preclude any action against property so impressed upon the mere showing that it is in fact homestead. It is an exemption or right that may he waived at the option of the party entitled to the exemption or right. That being true, it is incumbent upon a party desiring to avail himself of the homestead exemption to plead fully its homestead character, as is held by the authorities last above cited, otherwise he cannot avail himself of such homestead right or exemption.\\\"\\nSee, also, Colwick v. Wright (Tex. Civ. App.) 275 S. W. 152, Sweet v. Lyon, 39 Tex. Civ. App. 450, 88 S. W. 384, and Guarantee, etc., v. Nelson (Tex. Civ. App.) 223 S. W. 543.\\nIn this connection it perhaps should be noted that the petition in the foreclosure suit was not offered in evidence. It was incumbent upon appellants to show that the record in that suit disclosed the homestead character of the land. Otherwise they could not come within the doctrine of the Higgins and Barnett Cases. Gehret v. Hetkes, supra. But appellants' failure to offer such petition in evidence is unimportant in view of the fact that it is pleaded and attached as an exhibit to defendants' answer in this suit. Lalfield v. Maryland C. Co., 119 Tex. 466, 33 S.W. (2d) 187. At any rate, we have looked to the petition as it appears in the clerk's transcript as an exhibit to appellees' answer for the purpose of considering and determining the merits of appellants' contention that the Higgins and Barnett Cases are here applicable. It is only by so doing that we can consider that contention.\\nUpon the authorities cited, we hold that the judgment foreclosing the lien claimed is not impeachable in this collateral proceeding.\\nThe validity of the judgment foreclosing the attachment lien is controlled by other considerations.\\nIn that connection appellants invoke the rule that the foreclosure of an attachment lien does not preclude the later assertion of a homestead estate in the land. This is well settled where the homestead issue was not raised in the attachment suit by the pleadings of either party. Cline v. Niblo, 117 Tex. 474, 8 S.W. (2d) 633, 66 A. L. R. 916.\\nTanton was married three times. The first wife divorced him in 18S6. By her he had one daughter, who married and lived in Oklahoma. This daughter died in the fall of 1921 leaving two children about 12 and 13 years old. The record shows no other children.\\nHis second wife he married in 1911, and he had no children by her. This wife divorced him in January, 1921. Some years later he married the present Mrs. Tanton. He was unmarried during the foreclosure proceedings.\\nWith reference to the right of a divorced man to the homestead exemption when the effect of the divorce is to deprive him of the status of being the head of a family, Chief Justice Gaines, in Bahn v. Starcke, 89 Tex. 203, 34 S. W. 103, 105, 59 Am. St. Bep. 40, said:\\n\\\"The divorce destroys the particular family, the existence of which gave the right of exemptions; and hence destroys the right of homestead as to that family. Two new families may be created by a divorce dissolving the bonds of matrimony, or they may be created by the subsequent marriage of the parties. Such families would each have a right of exemption, but it proceeds from the existence of the new relation, and not from that of the old. It follows, we think, that if there exists any authority for holding that the exemption passed to the wife in this case, it must be found in the sections of the constitution which are hereinbefore quoted. Section 50 exempts 'the homestead of a family,' and the general rule is, 'no family, no homestead.' Wap. Homest. 71. Section 52 provides for the event of the dissolution of the family by the death either of the husband or wife, but makes no provision for the case of divorce. In neither, therefore, do we find anything to indicate that any exemption in favor of either a divorced wife or a divorced husband was intended to be recognized. The words 'homestead of a family' have a well-defined meaning, and are not open to a construction which would include the homestead of a single person without a family.\\\"\\nIn Jackson v. Jackson (Tex. Civ. App.) 283 S. W. 923, 924, it was said:\\n\\\"If said property was appellant's homestead at the time the divorce was granted, and if said property continued to be homestead property from the date the divorce was granted \\u2014 in other words, if the granting of the divorce did not destroy the family entitled to be protected in the use pf the homestead \\u2014 then appellant's proposition would be correct. Barber v. Barber (Tex. Civ. App.) 223 S. W. 866, and cases there cited. But we think the question sought to be raised here is not involved in this case. There is no evidence that there were any children, the issue of the marriage of appellant and appellee, nor that either of them had any children, the issue of any prior marriage. While appellant and appellee were husband and wife, they constituted a family, and the property involved was exempt to them as a homestead, but immediately on the granting of the divorce dissolving the marriage relation, they, having no children, each became single persons, and neither was entitled to any homestead exemption. Bahn v. Starcke, 89 Tex. 203, 34 S. W. 103, 59 Am. St. Rep. 40, and cases there cited.\\\"\\nSee, also, Lomax v. Comstock, 50 Tex. Civ. App. 340, 110 S. W. 762, and Id. (Tex. Civ. App.) 135 S. W. 185. (Writ refused on second appeal.) '\\nAppellant asserts that under the rulings in Woods v. Alvarado State Bank, 118 Tex. 586, 19 S.W.(2d) 35, Dorough v. Panse (Tex. Civ. App.) 24 S.W.(2d) 69, and Central Life Assur. Soc. v. Gray (Tex. Civ. App.) 32 S.W. (2d) 261, Tanton did not lose his homestead exemption upon his^divorce in January, 1921.\\nThe opinion in the Woods Case is by Chief Justice Cureton, and in our opinion it does not overrule the authority of Judge Gaines' opinion in Bahn v. Starcke, upon the present facts. The distinguishing feature of the Woods Case is disclosed in the first paragraph of the opinion. It is as follows:\\n\\\"At the time of the divorce decree the plaintiff in error Woods had two minor children, who, though awarded to their mother, continued to Iwe with him, and for the support of whom, whether living with him or not, he was at all times liable. Plainly he continued to he the head of a family, and as such entitled to all the homestead privileges and rights granted by the Constitution and laws of the state. Hall v. Fields, 81 Tex. 553, 17 S. W. 82; Speer & Goodnight v. Sykes, 102 Tex. 451, 119 S. W. 86, 132 Am. St. Rep. 896; Zapp v. Strohmeyer, 75 Tex. 638, 13 S. W. 9; Shook v. Shook (Tex. Civ. App.) 145 S. W. 682.\\\" (Italics ours.)\\nLater in the opinion it is expressly recognized that it does not conflict- with the Bahn Case.\\nThe decision in the Woods Case rests upon the fact that, although Woods was divorced, his status as the head of a family was not destroyed because his two minor children continued to live with him and were supported by him.\\nThat was not the case with Tanton. He was about 62 years old when he was divorced in 1921 from his second wife. Tanton testified:\\n\\\"I must have been in Oklahoma at the time of the filing of this suit. I had a telegram saying my daughter was about to die of cancer. That was in 1921 I went to her. My home then was down at Clint on the same property. My daughter was in Colorado and the doctor told 'me I would have to move her back to Guthrie, Oklahoma, which I did. I suppose I was not up there more than a month when I came back here; then my grandson wrote me his mother was worse and I went back and was up there off and on then all the year. My daughter died, leaving two grandchildren.\\n\\\"I went to Oklahoma in 1921 to see my daughter; she was married ; I don't keep up with her husband, I suppose he is living in Oklahoma; one child lives in Mississippi, the other in Colorado; both are married, married since their mother died in 1921.\\\"\\nBy bill of exception it is shown that \\\"while the witness N. W. Tanton was testifying, the plaintiff was questioning said witness about his grandchildren, one of them being fourteen years of age and the other eleven, and the plaintiff offered to prove that said grandchildren were dependent upon the plaintiff for support and that the plaintiff at said time was contributing to their support, and that the mother of said children at said time, to-wit: before the filing of the suit of Stanton .v. Tanton, was on her deathbed, to which said evidence counsel for the defendants objected and the Court sustained said objections, and the plaintiff excepted to said ruling and stated to the Court that plaintiff copld prove and would prove that said grandchildren were being partially supported by plaintiff and that he was at said time contributing to the support of said grandchildren.\\\"\\nThe bill was qualified \\\"with this explanation that neither the said grandchildren nor their mother had ever been in Texas and both of ' the parents were living at the time referred to and the children were with them.\\\"\\nWe do not regard the testimony given or that excluded as sufficient to show that Tanton remained the' head of a family at the time he was divorced in 1921. Tanton's married daughter in Oklahoma, and their children, were the constituent members of another family residing in another state. 29 C. J. 800; Andrews v. Hagadon, 54 Tex. 571; Roco v. Green, 50 Tex. 483; Davis v. Cuthbertson (Tex. Civ. App.) 45 S. W. 426; Hammond v. Pickett (Tex. Civ. App.) 158 S. W. 174.\\nCentral Life Assifr. Soc. v. Gray, supra, is no more in point upon the issue of the homestead exemption after the divorce than is Woods v. Alvara'do State Bank, upon which it is based, but Dorough v. Panse, supra, by the Sixth Court of Civil Appeals, supports the view that the homestead remained exempt after the divorce, although Tanton ceased to be the head of a family when the divorce was granted. The Woods Case is cited by that court in support of such ruling.\\nSo far as we are advised, no writ of error was applied for in the Dorough Case.\\nIt may be that the Woods Case sup-' ports the ruling that was made in the Dor-o'ugh Case. But it is the imperative duty of this court to follow the rulings of the Supreme Court until such rulings are by that court expressly or by necessary implication overruled or limited.\\nIn the Woods Case Chief Justice Cureton .expressly recognized that the Bahn Case decided a different question. Bahn v. Starcke has not been expressly overruled, nor, as we view it, is that the necessary inference to be drawn from the Woods Case.\\nThe Bahn Case was decided 35 years ago. It has been followed in other cases and frequently cited. It announced a property rule. In this connection we quote the distinguished Chief Justice Gaines again. In Whitmire v. May, 96 Tex. 317, 72 S. W. 375, he said:\\n\\\"The Court of Civil Appeals held that the case was ruled iby the decision in Buchanan v. Monroe, 22 Tex. 537. There it was decided that where a mortgagor has sold the mortgaged premises, and the purchaser has died before foreclosure, the power of sale given in the mortgage is revoked, so long as an administration is pending. When we granted the writ, we concurred in the view that Buchanan v. Monroe was decisive of the question, but we are not inclined to follow that ruling! So far as we have been enabled to- discover, although that case was decided more than 40 years ago, the precise point has never been again presented to this court. The case has, however, been frequently cited, and always with approval. If it were an original question, we should be inclined to hold that the death of a purchaser of property subject to a mortgage with a power of sale neither revokes nor suspends the power, but that the trustee may proceed to sell in the same manner as if the death had not occurred. But in view of the long lapse of time since Buchanan v. Monroe was decided, and of the fact that it has never been overruled or questioned, we feel constrained to hold that it has become an inflexible rule of property, which it is the duty of the courts in this state to uphold. The rule is unsatisfactory to us,' for the reason that it seems unjust that the mortgagor, by a sale of the property, 'should have the power to put the mortgagee in a position where his rights may become impaired by the death of the purchaser.\\\"\\nSo now we follow Bahn v. Starcke, because in our opinion the doctrine of that case applies in view of Tanton's divorce, leaving him without a family of which he remained the head.\\nIt is, of course, within the province of the Supreme Court to apply the ruling in the Woods Case to the present case, but we do not think this court can rightfully do so.\\nIt is insisted appellees cannot assert their equitable title until they have first set aside the deed from Tanton to Humphrey and their right so to do is barred Iby the four-year statute of limitations. This is untenable, and the cases cited in this connection have no application. Appellees here are the defendants and have acquired the equitable title, which is superior to the legal title. It is an equitable title as distinguished from a mere equitable right of rescission or cancellation.\\nIf Humphrey had sued Tanton for the land, the latter could have defended by showing that Humphrey held the land in trust for him. Appellees have succeeded to this title and right of Tanton, for it is well settled that an equitable title as distinguished from a mere equitable right is sufficient to support the action of trespass to try title. See cases cited in 16 Michie Digest 608. And under their plea of not guilty appellees could prove the superior equitable title vested in them. Article 7373 Vernon's1 Ann. Statutes and cases cited in Note 6.\\nWhat has been said directly or by necessary inference disposes of all questions raised by appellants.\\nSince ^we are of the opinion that the superior equitable title passed to Stanton by the foreclosure proceedings, it becomes unnecessary to consider the defenses of res judicata and estoppel set up by appellees arising out of the pleadings and judgment in the former suit of Tanton v. State National Bank (Tex. Civ. App.) 277 S. W. 449, independent executor of the estate of M. W. Stanton, deceased, in which Tanton unsuccessfully attempted to set aside the judgment of foreclosure and sheriff's deed under which appellees claim. See Tanton v. State National Bank, Executor (Tex. Civ. App.) 277 S. W. 449.\\nAffirmed.\"}"
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+"{\"id\": \"10280999\", \"name\": \"BARROW v. BOYLES et al.\", \"name_abbreviation\": \"Barrow v. Boyles\", \"decision_date\": \"1929-06-20\", \"docket_number\": \"No. 9275\", \"first_page\": \"716\", \"last_page\": \"720\", \"citations\": \"21 S.W.2d 716\", \"volume\": \"21\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T22:40:08.553345+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BARROW v. BOYLES et al.\", \"head_matter\": \"BARROW v. BOYLES et al.\\n(No. 9275.)\\nCourt of Civil Appeals of Texas. Galveston.\\nJune 20, 1929.\\nRehearing Denied Oct. 17, 1929.\\nNiday & Carothers and R. H. Ward, all of Houston, for appellant.\\nBaker, Botts, Parker & Garwood, O. L. Carter, and S. H. German, all of Houston, for ap-pellee Texas Co.\\nHunt, Moseley & Hunt, of Houston, for ap-pellees East Texas Oil Oo. and HaYris County Land & Improvement Co.\\nA. J. DeLange,' of Houston, for appellees McKnight.\\nJ. E. Walton,, of Houston, for appellees Guinn and others.\\nK. C. Barkley, of Houston, for appellees Garrett and others.\\nW. P. Hamblen, of Houston, for appellees Collins and others.\\nJ. W. Lockett, of Houston, for appellees Stewart and others.\\nFulbright, Crooker & Freeman, of Houston, for appellees Hornberger and others.\", \"word_count\": \"3776\", \"char_count\": \"21646\", \"text\": \"PLEASANTS, C. J.\\nThis is a suit for mandamus brought by appellant against J. S. Boyles, county surveyor of Harris county, to compel him to make a survey of land in that county claimed by appellant to be public land set apart to the permanent free school fund of the state, and for which appellant had filed application for purchase under the terms and provisions of article 5323, Rev. St. 1925. The suit was brought under the second section of this article of the statute.\\nThe defendant Boyles impleaded a number of persons, appellees herein, who were in possession of the land, claiming title thereto under a grant from the State of Ooahuila and Texas made to the Mexican citizen Victor Blanco, in 1831.\\nThe application for purchase was made by Victor Blanco in 1828 and was for eleven sitios or leagues of land. This application was approved by the Governor on October 25, 1828, and the title to him from the State of Coahuila and. Texas was extended on June 1, 1831.\\nPlaintiff's petition,' which is necessarily lengthy, sets out in full copies of all of the documents and records evidencing the grant to Victor Blanco under which the impleaded defendants claim title, and alleges that the defendants are claiming title \\\"under purported conveyance in regular chain under said purported Victor Blanco grant.\\\"\\nThe defendant Boyles in his answer admitted the truth of the allegations of the petition showing compliance by plaintiff with all. of the requirements of the statute in the matter of his application for the purchase of the land and as to the title claimed by defendants being under the grant to Victor Blanco from the State of Ooahuila and Texas, and averred that he refused to make the survey because the Commissioner of the General Land Office declined to recognize the land as vacant and unappropriated public land and declined to authorize a survey thereof, and because the impleaded defendants were claiming title to the land; the nature of such respective claims and the acreage claimed by each being unknown to this defendant. He further averred that he was willing to make the survey and return the field notes thereof to the General Land Office in event the court should hold that the land is unappropriated public domain and a part of the public school lands of the state.\\nThe other defendants answered by general demurrer, and by special exceptions and pleas the nature of which, in view of the ruling of the trial court on the general demurrer, need not be stated.\\nThe trial court sustained the defendants' general demurrer, and^the plaintiff declining to amend, his suit was dismissed.\\nWe deem it unnecessary to set out in detail the several propositions upon which appellant contends that the judgment of the trial court sustaining the general demurrer to his position should be reversed.\\nHis main contention is that the grant to Victor Blanco by the State of Ooahuila and Texas was void, because the land thereby granted was situated within the ten littoral leagues bordering on the coast of the Gulf of Mexico, and the grant was not issued with the consent or knowledge of the President of the government of the Mexican nation.\\nThe decision of the question presented by this contention is not necessary in determining the disposition of this appeal. The holdings of the Supreme Court of the United States and the Supreme Court of Texas upon the question are conflicting.\\nIn the cases of Wilcox v. Chambers, 26 Tex. 181, Cowan v. Williams, 49 Tex. 380, and Wood v. Welder, 42 Tex. 396, it is held, following earlier decisions of the Supreme Court of this state, that the consent of the Federal Executive of Mexico was essential to the validity of a grant of land within the littoral or border leagues, whether the grant was to a foreigner or to a Mexican citizen.\\nThe Supreme Court of the United States in the case of De Arguello v. United States, 18 How. 539, 15 L. Ed. 478, in an exhaustive and able opinion, construes the Mexican laws at the time in question as not requiring the consent of the Mexican President to a grant of public land within the littoral or border leagues, when such grant is made to a Mexican citizen and not for settlement by foreign immigrants. This decision was followed by the Supreme Court of this state in the c\\u00e1se of Cavazos v. Trevino, 35 Tex. 133, but that court in the later case of Wood v. Welder, supra, returned to its holding in the earlier cases.\\nIn the Chambers Case, supra, Judge Bell, who wrote the opinion, while feeling constrained to follow the earlier decision on the question, with his usual force and clearness expressed his opinion that the former decisions were unsound, and that the Mexican laws at the time this grant was made should not be construed as requiring the consent of the Mexican President to a grant by a state of its public lands within the littoral or border leagues when such grant was made to a Mexican citizen.\\nThe writer fully agrees with Judge Bell in the conclusions expressed by him, nor does he think that the question as here presented should be controlled by the rule stare decisis. But, as before said, we are not required to decide the question, since in our opinion the judgment must be affirmed, it matters not how this Question is decided.\\nThe statute under which the suit was brought should not be construed as authorizing a suit by a private citizen to recover for the state land occupied by persons claiming adversely to the state under a grant from a former sovereignty of the soil issued nearly 100 years ago, which is not void upon its face, and the validity of which has never been assailed or questioned by the state, but has been during all these years, and is now, recognized by the General Band Office of the state. Such a suit can only be brought by the Attorney General under article 5420, Rev. St. 1925.\\nIt seems to us that to construe the statute as authorizing this suit by appellant would make the legislative law thereby enacted so unreasonable as to largely excuse if not justify the impressive declaration of Mr. Bumble in Oliver Twist that \\\"the law is a 'ass.\\\" We think the reasonable construction of section 2 of article 5323 is that the Legislature by its enactment only intended to give a private citizen the right to compel the survey of land claimed to be not included in any prior grant by the state or former sovereignty of the soil. The statute only authorizes the bringing of the suit when there is doubt \\\"as to the existence of the area\\\" as public school land. This language indicates the intention of the Legislature to only give the right when there is a claim of vacancy between former grants.\\nThe following correct history of this legislation is copied from appellees' brief:\\n\\\"This section was first incorporated in our laws as a part of section 7, chapter 163, Acts of 1919, approved April 3, 1919, and was in the form of an amendment to article 5432, of the Revised Statutes of 1911. In the statutes of 1911 this article is captioned 'Unsurveyed or Scrap Lands.' This article had prior to that time been section 8 of chapter 103 of the Acts of 1905, approved April 15, 1905. This section in the Act of 1905 took the place of section 6 in. chapter 11 of the Act approved February 23,1900 (Acts 1st Called Bess. 26th Leg.) which section was amended by the Act approved April 15, 1901 (Acts 1901, c. 88, \\u00a7 1).\\n\\\"It will be seen that article 5323 is really old section 6 of the Act of February 23, 1900, as amended, with what is now section 2 of this article with reference to suits to require survey added thereto. In other respects the article is substantially the same as original section 6 of the act of 1900.\\n\\\"Section 'S of the act of 1900 (Acts 1st Called Sess. 26th Leg. c. 11), provided that where any public land or lands belonging to any vendee of the State were held, occupied or claimed by any one adverse to the State or such vendee, it should be the duty of the Attorney General to institute suit therefor! This section became article 5468 of the Revised Statutes of 1911 and is now article 5420 of the 1925 statutes, which is as follows: 'When any public lands are held, occupied or claimed by any person, association or corporation adversely to the State, or to any fund, or when lands are forfeited to the State for any cause, the Attorney General shall institute suit therefor, together for rent thereon, and for any damages thereto. For the purposes of this and the preceding article, venue is fixed in Travis County, concurrently with the county of defendant's residence and the county where the land lies.' \\\"\\nIn the case of Juencke v. Terrell, 98 Tex. 237, 82 S. W. 1025, 1026, the plaintiff brought suit in the Supreme Court for mandamus to compel the Commissioner of the General Land Office to file plaintiff's application to purchase land in Liberty county claimed by him to be public school land. The Commissioner refused to file the application on the ground that the land sought to be purchased \\\"was in conflict with a prior and incomplete\\\" grant to P. P. Devers. In refusing the mandamus the Supreme \\u00a1Court says:\\n\\\"The present Constitution contains this provision: 'All genuine land certificates heretofore or hereafter issued shall be located, surveyed or patented only upon vacant and unappropriated public domain, and not upon any land titled or equitably owned under col- or of title from the sovereignty of the state, evidence of the appropriation of which, is on the county records or in the general land office; or when the appropriation is evidenced by the occupation of the owner, or of some person holding for him.' Const. art. 14, | 2. This provision does not prohibit the Legislature from .providing for the. sale of such lands; but it very clearly evinces the policy of the state not to encourage litigation by permitting the acquisition from the .state of lands which appear upon the official records, or by actual occupancy to be claimed adversely to it. It should not lightly be assumed that the Legislature intended to depart from that -policy.\\n\\\"Our conclusion is that section 6 of the act under construction applied only to such lands as appeared upon the maps and records of the General' Land Office not to be claimed by other parties, and to such .as had been adjudged to the state, if ever so claimed.\\\"\\nIt should be borne in mind that the statute referred to in this opinion is identical with article 5323 of our present statute, with the addition of section 2 of that article.\\nThe holding in the Juencke Case was approved and followed in the case of Southern Pine Lumber Company v. Consolidated Lumber Company (C. C. A.) 217 F. 719, in which it was held that the Commissioner of the Gen eral Land Office was not authorized to place upon the market as public land any land which appeared to have been previously granted until the invalidity of such prior grant had been shown and the land recovered by the state in a suit brought by the Attorney General.\\nA similar holding was made by our Supreme Court in the case of Fitzgerald v. Robison, 110 Tex. 468, 220 S. W. 768, 769, in which it is said: \\\"If the particular land has been wrongfully patented, and it is rightfully a part of the public domain, the remedy of the State is an action in the District Court prosecuted by the Attorney General.\\\"\\nIt would be a strained and unreasonable construction of section 2 of article 5323 to hold that the Legislature intend.ed to give a private citizen the right to a mandamus against the surveyor of the county in which the land was situated to compel a survey of land which the Commissioner under the decisions just cited had rightly refused to place upon the market because it was covered by a prior grant, the invalidity of which had not been established by a suit - brought by the only officer of the state authorized to bring such suit.\\nThere is nothing in the language of the statute to compel such holding, and in the absence of such plain and compelling language the courts will not conclude that the Legislature intended, in the language of the decisions before cited, to \\\"turn loose a flood of litigation between purchasers and adverse claimants of the land.\\\"\\nIt is immaterial to the application of the rulings in these eases that the gz'ant to Victor Blanco may not be of record in 'the General Land Office, or have been properly authenticated for record. The existence of such grant and the claim of appellees thereunder and their adverse occupation of the land under such claim are shown by the allegations of plaintiff's petition to be known to the Commissioner, and his refusal to place the land on the market is alleged to be based on his knowledge of such grant and the adverse claim and occupancy of the land thereunder.\\nThat the state could stand by for 100 years and .acquiesce in the purchase and occupancy by its citizens of land claimed under title issued by the former sovereignty of the soil, and, as may be reasonably inferred from the allegations of the pleadings, collect taxes on tho land during all these years from its claimants and occupants, and after this lapse of time be allowed to assert title to the land and dispossess those who have purchased on the faith of this acquiescence, is a proposition so unjust and inequitable that no court of equity should entertain it even in favor of sovereignty.\\nBut if the question could be raised by general demurrer, we are not required to hold the state is estopped from asserting title to this land, because we think the Legislature of the state by the Act of February 5,1850, validated the Victor Blanco grant. This act contains the following provisions:\\n\\\"Section 1. Be it enacted by the Legislature of the State of Texas, that no certificate of land, land warrant or evidence of land claim of any kind whatever, shall hereafter be located upon any land heretofore titled or surveyed within the limits of the colonies of Austin, De Witt 'and De Leon, and the Commissioner of the General Land Office is hereby prohibited from hereafter issuing a patent on any location hereafter made for any of the lands described in this act; and should any patent be hereafter issued for the same, or a part thereof, contrary to the provisions of this act, the same shall be null and void.\\n\\\"See. 2. Be it furthef enacted that this act shall take effect and be in force from and after its passage.\\\" 3 Gammel's Laws, 556.\\nThe court will take judicial knowledge of the fact that the grant involved in this suit was within the boundaries of Austin's Colony.\\nThis act by its terms withdrew from appropriation all \\\"titled\\\" or \\\"surveyed\\\" lands within the named colonies. That the purpose of the act was to quiet and validate land titles in these colonies is, we think, clear, and it has been so construed by our Supreme Court in the following cases: Truehart v. Babcock, 51 Tex. 169; Summers v. Davis, 49 Tex. 541; Westrope v. Chambers, 51 Tex. 178; Winsor v. O'Connor, 69 Tex. 571, 8 S. W. 519.\\nThe two cases first cited also held that the words \\\"titled\\\" or \\\"surveyed\\\" lands means as well lands held under a grant void because subsequently annulled or because not issued with the consent of the Mexican Federal Executive, as those held under a subsisting valid grant. In the first case cited it is said:\\n\\\"As held by this court in Summers v. Davis, 49 Tex. 541, the object of this statute, and that of the act of 1856 (General Laws, 4th Leg., adjourned session, p. 59) was undoubtedly to quiet land titles in the colonies named, and would even include a title which, by the decree of the ayuntamiento, had been annulled, and which was 'to be regarded as though it had never had an existence.'\\n\\\"That this land had been 'titled or surveyed,' is not questioned; but the old grant to Miguel Muldoon is claimed to have been null and void because within. the littoral leagues, and had never been approved by the Federal Executive of Mexico. The title under which plaintiff claims was subsequent to the act of February 5, 1850. The Legislature, by the express terms of this act, prohibited such subsequent locations in most emphatic language, and declared them null and void', without any limitation, exception, or reservation as to the validity of subsisting prior grants. Should the courts ingraft exceptions upon a statute thus intended to quiet titles, they would encourage that litigation which it was the very obvious intention of the Legislature to pi-event.\\\"\\nThis act is almost identical with an act of the Congress of the United States passed in 1S07 prohibiting the location of bounty warrants within the Virginia Military District, and in construing our statute our Supreme Court followed the decision of the Supreme Court of the United States construing the similar act of Congress.. Galloway v. Finley, 37 U. S. (12 Pet.) 264, 9 L. Ed. 1079; McArthur v. Dun, 48 U. S. (7 How.) 262, 12 L. Ed. 693.\\nWhile a repeal of the act of 1850 could not affect a title vested thereunder, there has been no direct repeal of the act, and no repeal can be implied from the failure to include the act in subsequent revisions of our statutes. The act is clearly a local law, its application being confined to territorial limits embracing a comparatively small portion of the state. Vincent v. State (Tex. Com. App.) 235 S. W. 1084; Commissioners Court v. Garrett (Tex. Com. App.) 236 S. W. 970: R. C. L. p. 874.\\nThe purpose of each and all of the revisions of our statutes has been \\\"to revise, simplify, and consolidate all general laws into a compact form,\\\" and none of these revisions has ever carried forward special or local laws, but on the contrary the acts adopting these revisions each expi'essly provides that no gen-ei-al or special law theretofore enacted validating any act or proceeding whatever are affected by the repealing clause of the act adopting the report of the Commission of Revision, but that all such validating statutes shall 'continue in force, and that no local or private law shall be affected by the repealing clause of the adopting act. There can, under these provisions of the statute, be no question of the repeal of the act of 1S50 before referred to, and our construction of this act being that it validated the Victor Blanco grant under which appellees hold title, the trial court correctly sustained the general demurrer to plaintiff's petition.\\nFor the reasons indicated, the judgment must be affirmed, and it has been so ordered.\\nAffirmed.\"}"
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+"{\"id\": \"10285679\", \"name\": \"TEXAS POWER & LIGHT CO. v. HILL et al.\", \"name_abbreviation\": \"Texas Power & Light Co. v. Hill\", \"decision_date\": \"1930-04-23\", \"docket_number\": \"No. 7438\", \"first_page\": \"842\", \"last_page\": \"844\", \"citations\": \"27 S.W.2d 842\", \"volume\": \"27\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T19:03:28.706575+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"TEXAS POWER & LIGHT CO. v. HILL et al.\", \"head_matter\": \"TEXAS POWER & LIGHT CO. v. HILL et al.\\nNo. 7438.\\nCourt of Civil Appeals of Texas. Austin.\\nApril 23, 1930.\\nRehearing Denied May 14, 1930.\\nHart, Patterson & Hart, of Austin, for appellant.\\nR. B. Thrasher, of Austin, for appellees.\", \"word_count\": \"1620\", \"char_count\": \"9241\", \"text\": \"BLAIR, J.\\nThis appeal is from a judgment for $723.25 for damages in a condemnation proceeding, wherein appellant condemned a 50-foot right of way or easement across two tracts of land owned by appellees, one containing 68 and the other 99 acres, upon which to erect and maintain its high power electric transmission line. With respect to the character and purpose of the right of way or easement, the court instructed the jury as follows: \\\"That the essential elements of the right-of-way or easement consists of plaintiff's right to place and maintain its poles in and upon the land and to string or attach wires thereto and over the land, with the right to prohibit the erection of buildings and structures that will interfere with or endanger said transmission line, and to control all growth over 15 feet in height, that will endanger said transmission line, other than ordinary farm crops, on or within a space bounded by a line 25 feet on each side of and parallel to the center of the transmission line; and the right of ingress and egress to and from and over the strip of land described for the purpose of operating and maintaining said transmission line, but with no right to occupy any part of the surface of the land described, except the portion occupied by the poles and that-portion necessary for ingress and egress in operating and maintaining the transmission line, and the right of defendants, P. W. Hill and wife, to use and pasture the above described land and to cultivate the same in ordinary farm crops, except in so far as the property is employed by plaintiff as above detailed is not interfered with by the condemnation.\\\"\\nThe jury were further instructed that the measure of damages was the difference be tween tlie fair and reasonable market value of the strip of land taken for the easement, less its reasonable market value subject to the easement defined. \\\"Market value\\\" was defined and the following question propounded: \\\"What was the market value of the land of defendants actually appropriated by plaintiff for the erection and maintenance of its transmission line at the time of the erection of such line?\\\"\\nThe jury answered the question, \\\"$175.00 per acre.\\\" Appellant made no objection to the charge or the manner in which the issue of damages was submitted. It was agreed that there were 2.99 acres of land in the 50-foot strip condemned for the easement, and upon the jury's above answer, judgment was for appellee for $523.25. On motion for a new trial appellant objected to this judgment, because the land \\\"actually appropriated\\\" was not sufficient at $175 per acre to authorize the judgment for $523.25, it being contended that the land \\\"actually appropriated\\\" did not exceed 10 square feet around each pole. The contention is not sustained. The jury were instructed as above shown that the only land actually taken was that \\\"occupied\\\" by the poles. The charge further specifically described the character and purpose of the right of way or easement sought to be obtained by appellant. The jury were instructed that the measure of the damages resulting to ap-pellees for this 50-foot strip for such right of way or easement purpose was the difference between its reasonable fair market value, less the reasonable fair market value of the strip after the use and occupancy by appellant as defined. The measure of damages as provided by article 3265, subds. 1 and 3, is the difference between the market value of the land immediately before and immediately after its appropriation for the purpose for which it is condemned; and, in effect, the jury so understood the charge and arrived at a fair and reasonable amount of damages as disclosed by the evidence. This conclusion is sustained by the case of Tex. Power & Light Co. v. Jones (Tex. Civ. App.) 293 S. W. 886 (writ of error refused).\\nAppellant insists that the recent ease of Tex. Electric Service Co. v. Perkins (Tex. Civ. App.) 24 S.W.(2d) 320, is conclusive of the proposition urged that the jury were instructed that all of the 2.99-aere strip was actually appropriated. The jury were not so instructed in the sense that the entire strip was actually taken, but the easement or right of way sought to be condemned was specifically defined to them by the court's charge. We think that the rule laid down in that case as Well as the charge and rule announced by this court in the case of Tex. Public Utility Co. v. Bass (Tex. Civ. App.) 297 S. W. 301, were observed by the trial court in submitting this case. If appellant had desired the jury to find as to the value of the land \\\"actually taken\\\" or occupied by the poles, it should have requested the court to have submitted the issue separately. Not having done so, we see no reason why the question submitted did not include all damages to the 50-foot strip of land condemned for right of way, and it is clear that it did include all elements of damages at issue. Tex. Electric Service Co. v. Wells (Tex. Civ. App.) 8 S.W.(2d) 707.\\nOver appellant's objection witness Robert Comer was permitted 'to testify as follows: \\\"I also talked with J. W. Maxwell in regard to this matter. I told Mr. Maxwell that I hoped Mr. Hill would recover every cent he was asking for, because I knew that he (Hill) was a man that would not ask for anything to which he was not entitled.\\\" This was objected to on the ground that it was improper, uncalled for, and created a sympathy for Mr. Hill and bolstered him up as being honest and fair before the jury, and that same was immaterial. The record shows that the testimony was brought out on cross-examination and as testing the credibility of the witness. But, if the evidence was inadmissible for the reasons stated, its admission was harmless, as appears from the record. The only effect such evidence could have had was to increase the judgment in favor of the appellees, and to cause the jury to believe the testimony of Mr. Hill. The evidence is undisputed that Mr. Hill testified that his damages resulting from the condemnation of the 50-foot strip was more than, twice what the jury awardeij him. Several disinterested witnesses testified to much larger damages than found by the jury. Therefore the jury were not influenced by such testimony.\\nAppellant further contends that the judgment is erroneous because the trial court refused to strike out of appellees' petition the allegation that the land in controversy, because of its proximity to the city of Austin, was suitable to be cut up in acre blocks or tracts, and therefore more valuable than ordinary farm land. As we interpret appellant's objection, it seems that it was upon the ground that the allegation did not state \\\"when (appellant) intended to use the land for such purpose or to subdivide the same,\\\" and that therefore appellees would be allowed to recover speculative or future damages. The petition simply alleged that the land was suitable for the purpose of being cut up in acre or smaller blocks and was valuable for that purpose at the time of the condemnation. The case was tried upon the theory that the land at present was suitable for that purpose and therefore had a much greater value than ordinary farm land, due to the fact that it fronted upon a well improved public highway, and the further fact of its being situated near to the city of Austin.\\nThe rule is well settled that in estimating damages in cases of this character, the value of the land for any purpose for which it is adapted may be considered. Tex. Power & Light Co. v. Jones, supra; Perry v. Ry. Co. (Tex. Civ. App.) 238 S. W. 276; Penn. S. V. Ry. Co. v. Cleary, 125 Pa. 442, 17 A. 468, 11 Am. St. Rep. 913; Routh v. Tex. Traction Co. (Tex. Civ. App.) 148 S. W. 1152. Of course, these last three cases cited by appellant also hold that it is not competent for the owner of land to show that he intended to make some particular use of the property in the future and recover damages based thereupon, because same would be speculative; but in this case all of the witnesses testified that appellees' land was particularly adapted at the time it was condemned for being cut up into town lots or acre tracts, and that its value when so cut tip ranged from $500 to $1,0001 per acre. And all witnesses testified that the 50-foot strip was damaged more than one-half its value by reason of the easement.\\nThe jury allowed $200 for injury to the remainder of the land by reason of the manner in which the electric company's line was placed across same, cutting off in one corner a small strip of land. No complaint is made with respect to this in any particular, except as to the sufficiency of the evidence to sustain the damages. The evidence fully sustains the finding of the jury in this respect.\\nAppellant presents some fifty assignments of error, upon which he predicates thirty propositions, which in the main raise the questions heretofore discussed. We have carefully examined all of them, and find them to be without merit, and affirm the judgment of- the trial court.\\nAffirmed.\"}"
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+"{\"id\": \"10309658\", \"name\": \"ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. WEATHERLY\", \"name_abbreviation\": \"St. Louis Southwestern Ry. Co. of Texas v. Weatherly\", \"decision_date\": \"1926-11-05\", \"docket_number\": \"No. 3274\", \"first_page\": \"524\", \"last_page\": \"525\", \"citations\": \"288 S.W. 524\", \"volume\": \"288\", \"reporter\": \"South Western Reporter\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T19:23:07.556663+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. WEATHERLY.\", \"head_matter\": \"ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. WEATHERLY.\\n(No. 3274.)\\n(Court of Civil Appeals of Texas. Texarkana.\\nNov. 5, 1926.\\nRehearing Denied Nov. 18, 1926.)\\nBryan Marsh and Marsh & Mcllwaine, all of Tyler, for appellant.\\nEdwards & Hughes, of Tyler, for appellee.\", \"word_count\": \"471\", \"char_count\": \"2635\", \"text\": \"PER CURIAM.\\nI. The appeal is from an order granting a motion for a new trial. The plaintiff sued for personal injury alleged to have been caused by the negligence of the defendant. The case was submitted to the jury on special issues. The jury answered that (1) the defendant was guilty of negligence in each of the four distinctive grounds inquired about, but (2) neither one of the four grounds of negligence was \\\"a proximate cause of Weatherly's injury,\\\" and (3) the plaintiff was guilty of contributory negligence diminishing the amount of damages by one-half. In keeping with the verdict, the court entered a judgment in favor of the defendant. The plaintiff filed a motion for a new trial in due time, and the court granted it for the reasons therein recited, to wit:\\n\\\"First. Because the answers of the jury to questions numbers 3, 7, 10, and 14, as- contained in the verdict, are in conflict with their answers to question No. 15 in the verdict.\\n\\\"Second. Assuming the facts to be as found by the jury in its answers to questions 1, 2, 4, 5, 6, 8, 9, 11, 12, 13 (referring to negligence), the answers of the jury to questions 3, 7, 10, and 14 (referring to proximate cause) are not supported by the testimony.\\n\\\"Third. Because from the evidence introduced on the motion for a new trial it clearly appears that the verdict of the jury as contained in its answers and questions 3, 7, 10, and 14 does not express the actual findings of the jury on said issues.\\\"\\n2. It is concluded that the first and third grounds stated above were not sufficient legal reasons to grant the new trial, for it is plain from the evidence that the answers of the jury to questions 3, 7, 10, and 14 were not pure errors in writing, but resulted from a misinterpretation of tbe term \\\"proximate cause.\\\" Tbe second ground or reason was clearly witbin tbe authority of tbe court. Tbe court reasonably meant to say and to bold that tbe answers of tbe jury relating to \\\"proximate cause\\\" were \\\"not supported by tbe testimony\\\" produced on tbe trial. It is generally beld that, if after a consideration of all tbe evidence tbe trial court is of tbe opinion that tbe verdict of tbe jury is contrary to the evidence, or tbe weight of tbe evidence, or not sustained by sufficient evidence, be is authorized to set aside tbe verdict and grant a new trial. Therefore tbe order of the court is affirmed.\"}"
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+"{\"id\": \"10313286\", \"name\": \"PRUETT et al. v. FORTENBERRY\", \"name_abbreviation\": \"Pruett v. Fortenberry\", \"decision_date\": \"1923-06-28\", \"docket_number\": \"No. 8504\", \"first_page\": \"592\", \"last_page\": \"594\", \"citations\": \"254 S.W. 592\", \"volume\": \"254\", \"reporter\": \"South Western Reporter\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T20:18:35.949925+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"PRUETT et al. v. FORTENBERRY.\", \"head_matter\": \"PRUETT et al. v. FORTENBERRY.\\n(No. 8504.)\\n(Court of Civil Appeals of Texas. Galveston.\\nJune 28, 1923.)\\n1. Receivers <&wkey;l82 \\u2014 Must file bond on petition for injunction.\\nRev. St. 1911, art. 4654, requiring a complainant, except the state, to file a bond on petition for injunction, is mandatory, and makes no exception in favor of receivers, and it was error to grant a temporary injunction on application of receiver without a bond.\\n2. Corporations <&wkey;>559(6) \\u2014 Actions pending against corporation not suspended by appointment of receiver for it.\\nThe appointment, of a receiver for a corporation does not abate or suspend the prosecution of an action pending against it at the time of the appointment.\\n3. Injunction <&wkey;26(6) \\u2014 Against prosecution of action against corporation pending in another eourt when receiver appointed until he could prepare defense held improperly granted.\\nAn injunction against the further prosecution of an action in another court against a corporation when a receiver was appointed until the receiver could prepare a defense thereto, since it is not the province of a court to control the disposition of another court\\u2019s business, was improperly granted; the proper procedure being for the receiver to apply to the court in which the case was pending for a continuance or postponement as under Rev. St. 1911, art. 2146, he could be made party to such action.\\n4. Receivers &wkey;>78 \\u2014 After appointment of receiver for corporation, its property is in cus-todia legis, and not subject to sale under execution.\\nWhere, after a sheriff levied on property of a corporation, a receiver was appointed, the property was in custodia legis, and not subject to sale under execution, and the court, being justified in believing that the sheriff claimed possession of the property as against the receiver, and that he would after -such sale assert title in the purchaser, properly restrained the sale.\\n5. Appeal and error &wkey;>I 139 \\u2014 Bond for temporary injunction permitted to be filed in appellate court.\\nWhere a temporary injunction was granted without the filing of the bond required by Rev. St. 1911, art. 4654, the decree will be conditionally affirmed with the proviso that the bond be filed in the amount fixed by the Court of Civil Appeals within, 15 days, payable and conditioned as required by law.\\nAppeal from District Court, Harris County; J. D. Harvey, Judge.\\nSuit by C. I. B\\u2019ortenberry, receiver, against Price Pruett and others. From a decree for plaintiff, defendants appeal.\\nDecree reformed and conditionally affirmed.\\nWoods, King & John, of Houston, for appellants.\\nRoss & Wood, of Houston, for appellee.\", \"word_count\": \"2400\", \"char_count\": \"14174\", \"text\": \"GRAVES, J.\\nIn response to the bill of Fortenberry, receiver of the Home Laundry, a corporation, praying for such relief, the court below, upon an ex parte hearing, and without requiring the receiver to give any bond, directed the issuance of a temporary injunction restraining Price Pruett and others in two respects:\\n(1) Prom selling under execution on a judgment against W. T. Terry foreclosing a chattel mortgage thereon certain machinery alleged to be in the receiver's possession. -(2) In the language of the order, \\\"and from proceeding further, or taking any action or step under said execution or order of sale; and enjoining said Price Pruett, his agents and attorneys, from prosecuting or proceeding further with that certain suit in the district court of Harris county, Tex., Eleventh judicial district of Texas, No. 104255, entitled Price Pruett v. Home Laundry, and purporting to be based upon a note, deed of trust, and chattel mortgage, alleged to have been executed by said the Home Laundry. It is further ordered that thjs order and injunction shall remain in full force and effect until otherwise ordered by the court.\\\"\\nOf this decree Pruett and his codefend-ants in the trial court complain in the capacity of appellants here against the plaintiff below as appellee.\\n' What is deemed a sufficient r\\u00e9sum\\u00e9 of the material avernlents of the application-, upon consideration of which the writ as outlined issued, is this:\\nW. T. Terry had bought the machinery referred to from the Troy Laundry, giving it in security for. unpaid purchase money a chattel mortgage thereon, which had been foreclosed in a judgment in its favor for the debt against him, the amount unpaid on the judgment at the time the execution or order of sale thereunder issued \\u2014 that is, the one herein enjoined \\u2014 being $1,681.83, appellant Pruett having bought and being then the owner thereof; this judgment and foreclosure had been entered in the Eightieth district court prior to the appointment of the receiver here involved by the same court in a different proceeding but the corporation he subsequently represented was never in any way made a party thereto, and Terry, the defendant in that judgment, had before its rendition sold and transferred the machinery to the Home Laundry, in whose plant it was located, constituting its main dependence, 'and being necessary to the' operation thereof at the time Pruett, by virtue of the judgment referred to, levied an execution thereon and caused the same to be.advertised for sale thereunder.\\nThe suit No. 104255 in the Eleventh district court, Price Pruett v. Home Laundry, the bill .at length charged, was one appellant Pruett had, likewise prior to the appointment by the Eightieth district court of this receiver, filed against the Home Laundry upon a purported note for. $18,000 ostensibly secured by a deed of trust on its lots and laundry plant located thereon, as well as by a chattel mortgage on some machinery in the plant, all alleged by Pruett to have been executed in his favor by it, but none of which instruments in fact represented its acts or obligations, in that the $18,000 note so declared upon was never signed by it, and was purely the individual debt of W. T. Terry; further, that Pruett had, contemporaneously with the filing of this No. 104255, instituted still another suit against the laundry corporation in the Eleventh district court, to wit, No. 104252 therein, whereby he sought to foreclose three vendor's lien notes against it he had as late as February 3, 1923, acquired from the Goose Creek Realty Company, and that he was prosecuting these two suits in the Eleventh district court and the order of sale' out of the Eightieth district court at the same time in order to so paralyze the Home Laundry that it could neither make in such cause No. 104255 the valid defense it had on account of never having, executed the $18,000 note nor procure money or security wherewith to protect itself in the other two suits, and up-less restrained he would accomplish that objective, since the receiver ha.d only been appointed as such on May 14, 1923, whereas the execution sale had been advertised for May 16, 1923, and the suit on the $1S,000 note in the Eleventh district court was then on- the eve of trial, so that he had no time to prepare his above-mentioned defense thereto. The usual representations as to irreparable loss and the lack of adequate remedy at law were added.\\nIn setting out .that the execution had been levied on machinery indispensable to the operation of the laundry on May 5, 1923, and the sale thereof advertised to take place on May 16, 1923, the specific averment appears:\\n\\\"That the said sheriff, in levying said writ, claims to have levied same upon the personal property and taken possession thereof, and this petitioner believes that, if a sale be made of the said machinery, the said sheriff will attempt to put the purchaser thereof in possession of said machinery, and petitioner is informed and believes and charges upon such information and belief that the said Pruett is insisting on the enforcement of said writ and sale of said personal property, and insisting that the said sale will pass title to the said property.\\\"\\nThe prayer concluding the bill was as follows:\\n\\\"Petitioner prays that notice of this application be given to the said Price Pruett and to T. A. Binford, sheriff of Harris county, Tex., in his capacity as such sheriff, and that on a hearing hereof a temporary injunction or restraining order issue, restraining said Price Pruett and the s,aid sheriff from making a sale of the said property under the said judgment, and from attempting to sell the same, and that said Price Pruett be further restrained from immediate prosecution of the said suit in the said district court of Harris county. Eleventh judicial district of Texas, upon said, alleged $18,000 note, until this petitioner shall have opportunity to prepare a defense against the same, and that upon a final hearing hereof the said injunction against the sale of the said property under the said judgment be perpetually enjoined, and that said Price Pruett be required to seek his relief and his remedy for the collection of said judgment indebtedness through this receivership, and petitioner prays for such other and further orders as may be necessary or proper in the premises and for all general and special relief, both legal and equitable.\\\"\\nOur conclusions upon the record so presented here are: (1) The trial court erred in not requiring a bond from the appellee; (2) the writ issued was improvidently awarded in so far as it attempted to enjoin the prosecution of the suit in the Eleventh district court, but properly restrained the selling of the machinery under the execution.\\nOur statute providing for bond in injunction proceedings (article 4654, Revised Statutes) makes no exception in favor of receivers, and has been held to be mandatory. Paine v. Carpenter, 51 Tex. Civ. App. 191, 111 S. W. 431; H. I. & B. Co. v. Clint (Tex. Civ. App.) 159 S. W. 409, writ of error refused.\\nAfter admitting that, prior to his appointment as its receiver, his corporation had been duly served in suit No. 104255 in the Eleventh district court, and was therefore properly subject to the jurisdiction thereof, the sole ground the appellee advanced as a basis for asking the Eightieth court to stop by injunction the further prosecution of that litigation, and thereby ' control the action of another court of co-ordinate power in a matter touching which its jurisdiction had first attached, was that he had no time to prepare and present his, defense therein; that but amounted to applying to one district court for a continuance or postponement of a cause properly in another merely on the claim that one of the litigants did not have sufficient time within which to present his defense. It should have been addressed to the court in which the cause was pending. The appointment of a receiver for a- corporation does not abate or suspend the prosecution to judgment of actions pending against it at the time of the appointment (8 A. L. R. Annotated, 443, two pending actions), and under our statute (article 2146) this receiver might have become or been made a party to the cause in the Eleventh district court; at any rate, it was not the province of a sister court to so control the disposition of another's business.\\nAs concerns the other feature of the writ granted, however, a different situation is presented and a different rule applies. The order of sale had issued out of the same court, the property to which it related was then in the receiver's possession \\u2014 in other words in custodia legis \\u2014 and neither its possessor nor his predecessor, the corporation itself, had ever been a party to the suit out of which the process issued. The court below was authorized to -conclude, in response to the applicant's allegations to that effect and our statutory requirements with reference to the ad interim possession of personal property levied on and ordered sold under execution, that appellant Pruett, through the sheriff, was not only then claiming to have actual possession of the machinery as against the receiver, but that if not restrained he would, after such advertised sale, further assert that the title to it was in the purchaser thereof, and that the sheriff must so deliver it; in other words, there was enough before the court to justify it in finding that appellant's alleged acts constituted an interference with its own control of the property through the receivership.\\nWhere property is thus in custodia legis, the settled rule in Texas seems to be that it is not subject to levy and sale under execution. In Ellis v. Water Co., 86 Tex., at page 114, 23 S. W. 861, our Supreme Court says:\\n\\\"It is well established, we think, that after property has been placed in the hands of the receiver, it is not subject to levy and sale under execution. Being in the custody of the law, through the.appointment of a receiver by a court of competent jurisdiction, it cannot be interfered with by process from another court.\\\"\\nAnd again on page 115, of 86 Tex., on page 862 of 23 S. W., the court declares:\\n\\\"To permit the control of a receiver to be interfered with by virtue of process from another court would be a practice fraught with injustice and productive of confusion; and the remark applies with especial force to the receivers of insolvent corporations.\\\"\\nTo the same effect are the cases of H. I. & B. Co. v. Clint, supra, Wiswall v. Sampson, 14 How. 52, 14 L. Ed. 322, and Scott v. Crawford, 16 Tex. Civ. App. 477, 41 S. W. 697; sales of the property under such circumstances being held to be void and to pass no title.\\nUnder the conclusions stated, bond should be required of the receiver, and no restraint of the action of the Eleventh district court should be attempted. The order appealed from will therefore be so modified here as to eliminate the above quoted (2) provision thereof relating to cause No. 104255 in the Eleventh district court, and as so reformed will be affirmed,' provided the appellee, within 15 days from this date, files with and secures approval by the clerk of the court below a bond for $500 payable and conditioned as required by law. Water Co. v. Water & Light Co. (Tex. Civ. App.) 132 S. W. 868; Oil Lease & Royalty Syndicate v. Beeler (Tex. Civ. App.) 217 S. W. 1054.\\nReformed and conditionally affirmed.\\nigd^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes\"}"
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diff --git a/tex/10317224.json b/tex/10317224.json
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+"{\"id\": \"10317224\", \"name\": \"BALDWIN v. STATE\", \"name_abbreviation\": \"Baldwin v. State\", \"decision_date\": \"1917-10-31\", \"docket_number\": \"No. 4608\", \"first_page\": \"305\", \"last_page\": \"307\", \"citations\": \"198 S.W. 305\", \"volume\": \"198\", \"reporter\": \"South Western Reporter\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T20:51:42.730973+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BALDWIN v. STATE.\", \"head_matter\": \"BALDWIN v. STATE.\\n(No. 4608.)\\n(Court of Criminal Appeals of Texas.\\nOct. 31, 1917.)\\n1. Indictment and Information <\\u00a7=3110(51) \\u2014Following Language oe Statute \\u2014 Pandering.\\nIn a prosecution under Vernon\\u2019s Ann. Pen. Code 1916, art. 506a, as to pandering, an indictment charging that defendant did unlawfully procure, and was connected in procuring, with her consent, a female inmate named for a house of prostitution followed fully tho language prescribing offense and was sufficient.\\n2. Prostitution @=4 \\u2014 Pandering \\u2014 Evidence\\u2014 Sufficiency.\\nThe evidence was sufficient to establish defendant\\u2019s guilt.\\nAppeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.\\nHenry Baldwin was convicted of pandering, and appeals.\\nAffirmed.\\nE. B. Hendricks, Asst. Atty. Gen., for the State.\", \"word_count\": \"2202\", \"char_count\": \"11823\", \"text\": \"PRENDERGAST, J.\\nAppellant was in-dieted and convicted of the offense of pandering.\\nThe indictment, after the usual allegations of the proper organization of the grand jury, alleged that appellant, on July 30, 1916, \\\"did unlawfully procure, and was concerned in procuring, with her consent, a female inmate, to wit, Agnes Yarbrough, for a house of prostitution.\\\" There were other counts of the indictment, but as this alone was submitted, it is unnecessary to state the others.\\nThe statute prescribing this offense (article 506a, 1 Vernon's Crim. Stats., Acts 1911, p. 29) enumerates quite a number of differ-. ent acts in the alternative, all with the same penalty, prescribing how this offense may be committed. It is unnecessary to quote the whole article. We will quote the one under which this prosecution was had.- It is:\\n\\\"Any person who shall procure, or attempt to procure, or be concerned in procuring, with or without her consent, a female inmate for a house of prostitution, \\\" shall be guilty of pandering, etc.\\nIt will be noticed that the indictment herein. follows completely, in alleging the acts constituting the offense, the language of this statute. Appellant made a motion to quash this count on the ground .that by a fair construction of the words used it appears that Agnes Yarbrough was already an inmate of a house of prostitution, and that it would be impossible to procure her as an inmate for such house, and that it is at best paradoxical, and does not charge in plain and intelligible language any offense known to the law, and that in order to constitute a good pleading the state should have alleged by appropriate averment that defendant \\\"procured, and was concerned in procuring, a female person, to wit: Agnes Yarbrough, as an inmate for a house of prostitution.\\\" None of appellant's contentions can be sustained. As stated, the averment in the indictment follows fully the language prescribing the offense, and it-has been held, under this statute, that when this is the case the indictment is sufficient. Jones v. State, 72 Tex. Cr. R. 500, 162 S. W. 1142; Clark v. State, 76 Tex. Cr. R. 350, 174 S. W. 354, and cases there cited; section 344, White's Ann. C. C. P., and cases there cited.\\nAgnes Yarbrough, a young woman, testified that in the latter part of July, 1916, she lived at Elam, out in the country with her parents; that she had been married, but was then separated from her husband. She further testified:\\n\\\"I first met Mr. Baldwin when I went up there one night to his place to get a room. I just came to town to do some trading, and just thought I would get a room to spend the night. I just saw where it said 'Hotel' and went up and got a room. That was the first time I had ever met the proprietor of that rooming house. This defendant is the man from whom I rented a room. I rented a room from him for the purpose of staying all night. It was about an hour after I rented the room when the defendant came, and talked to me. He asked me if I didn't want to stay up there, and said I could make lots of money, and said it was a good place, and I could make good money, and I asked him how, and he says, 'Standing men,' and I says that was-something I never did and never had done. I had never stayed with any man except my husband. ' Mr. Baldwin told me what to say to the men, and he would show me to the man, and then toid me what to say to him and what to do, and everything about staying with them. He said not to let a man go down the steps if he offered me $2, and if I did let him go down the steps he got awful mad. That was afterwards. Mr. Baldwin brought me the first man that I stayed with in that house. He brought me about four or five men that night. I stayed with each of them. By that I mean I had carnal knowledge of them. I charged them for it; they paid me $2 apiece, and I gave the defendant a dollar; Mr. Baldwin charged me $3.50 a week room rent. I stayed there from the latter part of July up until some time in November, and then I got burned and went home. For every man that stayed with me from that night on, I gave Mr. Baldwin a dollar.\\\"\\nShe further testified that while staying in said house and plying her vocation other women, she naming several, during said time, also came to said house and plied their vocation of prostitution, and for each man they stayed with they would give appellant a dollar each time. They had no connection with her, and came at different times from the time she was induced to stay there. She further swore that while there whenever she fined a date with a man she got $2 for it and paid Baldwin $1 and kept $1, \\\"except that one time he told me to go and stay with a man for $1.25, and he took the dollar and left me the quarter.\\\" It was proven that appellant had run said house for some 3 years before this prosecution was begun, and that it was a rooming house or hotel over the Stag saloon in Dallas.\\nThe state proved by Mr. Parsons, a police officer of Dallas, that he knew the general reputation of that house as a house of prostitution, and that that reputation of it was bad.\\nW. E. Powell testified that he knew appellant and the house he kept, and that he knew said witness Agnes Yarbrough, and had known her for a long time; that while Agnes Yarbrough was in that house he was up there twice and talked to her, and that while he was there the second time he saw a man come in and speak to appellant and then went back and talked to Agnes, and the man then went in a room and stayed with her about 30 minutes; that when she came out she went and paid appellant some money.\\nGrace Rogers testified she was 20 years old, knew appellant and where his house was situated; that she went up there in March, 1916, and lived up there some time; that she left there some two or three weeks before appellant was arrested in this case; that while there she had sexual intercourse with various men, and received money therefor; that she paid part of the money to appellant and kept some of the money herself.\\nNeta Underwood, a young woman, testified that she knew appellant and where his place was; that she had been there many times; that he asked said witness Agnes her phone number, which she told him, and that he invited her up there, stating he had a proposition to make to her; that she went up there, and \\\"he told me I could work for my room rent, and every time I went to a room with a man I would have to pay $1, and the man would pay me $2; I mean I would have intercourse with a man for $2, and then would give Mr. Baldwin $1. I gave that money to Mr. Baldwin.\\\"\\nJewel Franklin, a young woman, testified that she knew appellant and. his place, and went to his place in 1916, and \\\"I was at his place between three and four weeks.\\\" She testified:\\n\\\"I had a conversation with defendant when I went there. I went there some time in November of 1916, last year. He told me to get two dollars, and give him one and keep one; that was for trick money. I stayed there about three weeks, I think. When I turned a trick I gave up part of the money and kept' part. I gave part to Mr. Baldwin; I gave him his part and kept my own. I did that for every trick I turned. I gave him his trick money, his part. I call this trick money \\u2014 $2, $1 for me and one for him; trick money is money that you get when you turn a trick with a man.\\\"\\nThe full testimony of none of these witnesses is given because deemed unnecessary. In their further direct, cross, and redirect testimony much other evidence was given by them tending to establish the same facts where their testimony is quoted above.\\nAppellant and his wife both testified and denied that they kept said house as a house of prostitution, and all knowledge of the women who stayed there as plying their vocations. He also introduced several witnesses who testified to his good reputation as a peaceable, law-abiding man.\\nThe state, in rebuttal, introduced Mr. J. J. Smith, a farmer who lived at Lancaster, in Dallas county, who testified that he knew appellant and where his said place was located; that he had been there twice; that the first time he went there he got a room from appellant himself, and when he registered he asked him if there were any girls up there, and -he replied the girls were out; that he went up to bed and stayed there that night. That he-was there again in October or November, 19X6, and said:\\n'.T stayed with a woman there then; I stayed with Agnes, who is out here in the witness room. The defendant Baldwin was in the house at that time; that was in the afternoon. I paid the woman for it.\\\"\\nOn cross-examination he testified that:\\nWhen he went there the second trip, in October or November, \\\"that was the time I stayed with the woman; I went up there that time in the afternoon about 2 or 2:30 o'clock. Mr. Baldwin was in there at that time, but I never said anything to him, but I just went on and made arrangements and told her what I wanted, and we went in the room; Baldwin was up in the hall when I went in the room; Baldwin was at the head of the stairs, or something like the head of the stairs, and I walked on by him.\\\"\\nA. W. Mosier testified that he lived at Hutchins, in Dallas county, all his life; that he had seen appellant and knew where his place was, and had been up there; that Joe Lee Chilton, who also lives at Hutchins, went up there with him. He said:\\n\\\"We went up there at night. I saw Mr. Baldwin when I first got up there. We sat down there in the hall. We saw Grace, this girl out here; she was lying on the bed. I sat down there in the hall, and Grace came in the hall to where I was. Then Mr. Baldwin went back to the back end. Then Grace came in there; nobody else came in; no other girl came in. Yes, Agnes came in there; she came after Mr. Baldwin left. Then I went to the room with Agnes. Joe Lee Chilton went out with Grace. I paid for it.\\\"\\nOn cross-examination he further swore that he saw said Chilton go in a room with a woman; that Chilton went in one room, and he, witness, went in another; that he paid the girl he went in the room with $3 hut he did not know what she did with it.\\nUndoubtedly the testimony clearly establishes appellant's guilt under the law.\\nThe court gave some of appellant's specially requested charges, and in his main charge copied and gave substantially another or others requested by appellant. Upon the whole, the charge the court gave was full, complete, and apt, correctly laying down the law and submitting every issue that was raised by the testimony.\\nAppellant has several bills of exceptions in the record, but they were all filed too late to be considered; hence the Assistant Attorney General's motion to strike them out and not consider them must be sustained.\\nThe ease seems to have been well tried on both sides, appellant had a fair and impartial trial, and there is no reversible error presented that would authorize this court to reverse the judgment. It will therefore be affirmed.\\n\\u00aer=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes '\"}"
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diff --git a/tex/10317340.json b/tex/10317340.json
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+"{\"id\": \"10317340\", \"name\": \"METTS et ux. v. WAITS\", \"name_abbreviation\": \"Metts v. Waits\", \"decision_date\": \"1926-06-30\", \"docket_number\": \"No. 6996\", \"first_page\": \"923\", \"last_page\": \"925\", \"citations\": \"286 S.W. 923\", \"volume\": \"286\", \"reporter\": \"South Western Reporter\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T00:33:38.156486+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"METTS et ux. v. WAITS.\", \"head_matter\": \"METTS et ux. v. WAITS.\\n(No. 6996.)\\n(Court of Civil Appeals of Texas. Austin.\\nJune 30, 1926.\\nRehearing Denied Oct. 4, 1926.)\\nJenkins, Miller & Harris, of Brownwood, for appellants.\\nW. Marcus Weatherred, of Coleman, for appellee.\", \"word_count\": \"1643\", \"char_count\": \"9366\", \"text\": \"BAUGH, J.\\nThe controlling issue in this case is whether the trial court erred in sustaining appellee's exception to appellants' motion for a new trial. Other questions are raised, but we deem this issue determinative of this appeal. We .copy in part the statement of the ease made in appellee's brief as follows:\\n\\\"This suit was filed by appellee, J. W. Waits, against appellants, A. E. Metts and Ethel Metts, on December 24, 1923, for the amount due on a note for $1,000, signed by appellants, dated September 19, 1923, payable to Coleman National Bank on November 1, 1923, secured by deed of trust on certain property in Brown county, Texas, of said date, which note and deed of trust were duly indorsed and transferred to appellee by said Coleman National Bank. Defendants answered by general demurrer, general denial, and by plea that the property covered by said trust deed was homestead of defendants.\\n\\\"Trial was had before a jury, and the court instructed a verdict in favor of appellee for the sum, of $487, and a finding that said deed of trust was a valid lien, which was duly returned, and upon which judgment was entered in favor of appellee on June 19, 1925. On August 21, 1925, appellants filed motion for new trial, to which appellee filed his answer and exception, because judgment was rendered on June 19, 1925, and said motion for new trial was not filed within two days as required by law, but was filed on August 21, 1925, more than two months after judgment was rendered, which exception was by the court sustained, and said motion overruled.\\\"\\nThe original motion for a new trial was filed on August 18,1925, and the amended motion three days later. The trial court having refused to hear evidence on said motion, and having sustained appellee's exception thereto, we will accept as true the allegations made in said motion, except where the record discloses the contrary.\\nIt is well settled that the statute, requiring motions for new trials and in arrest of judgment (article 2232, R. S. 1925) to be filed within two days after rendition of the verdict, is directory only, and that it is within the sound discretion of the trial court to pass upon motions filed more than two days thereafter. Head v. Altman (Tex. Civ. App.) 159 S. W. 135; First Nat. Bank of Fort Worth v. Henwood (Tex. Civ. App.) 183 S. W. 5; Dittman v. Model Baking Co. (Tex. Com. App.) 271 S. W. 75. And in such case the discretion of the trial court is not arbitrary, but will be reviewed on appeal, where abused. Insurance Co. v. Tomkies, 28 Tex. Civ. App. 157, 66 S. W. 1109; Hubb-Diggs Co. v. Mitchell (Tex. Civ. App.) 231 S. W. 425; Lee v. Zundelowitz (Tex. Civ. App.) 242 S. W. 279. But, where such motion is filed after the time fixed by said . statute, it is incumbent upon the party making same, not only to absolve himself from negligence for failure to file same sooner, but also to show that he had a meritorious defense, which, without fault on his part, he was deprived of on the trial of the cause. Monarch Pet. Co. v. Jones (Tex. Civ. App.) 232 S. W. 1116; Thomas v. Goldberg (Tex. Civ. App.) 283 S. W. 230; Holliday v. Holliday, 72 Tex. 585, 10 S. W. 690; El Paso & S. W. Ry. Co. v. Kelley, 99 Tex. 87, 87 S. W. 660. And as stated in the case last cited:\\n\\\"If, however, the showing be made that the party applying for the relief was not in fault in failing to file his answer, nor in failing to file the motion within the time allowed by law, then the rights of the parties are the same as if the motion had been filed in time.\\\"\\nThe motion of appellants sets forth meritorious defenses, which it is obvious from-the record appellants were not permitted to present on the trial, and which, if proven, would have defeated appellee's suit \\u2014 defenses which, under the law, they were entitled to make and to have submitted to a jury. Hence the only question here presented is whether appellants have excused themselves of negligence in their failure to have their case properly presented on the trial, and for their delay in filing their motion for a new trial. We have reached the conclusion, that, upon the grounds set forth in their motion, accepted as true, they have sufficiently done so. These grounds, as alleged, are substantially as follows:\\nThat before appearance day in said case appellants employed Hon. Walter C. Woodward to represent them; that he appeared and secured continuance of said case at the January and June terms, 1924, of said court; that prior to the January term, 1925, of said court, he advised them that, because of his duties as state senator and other pressing matters, he could not represent them further; that they thereupon employed Garland Woodward and Rawlins Gilliland, who filed an answer in January, 1925, at which time said case was again continued because of sickness in appellants' family; that just a few days before the beginning of the June term, 1925, being the next term of said court, and at which term the case was tried, the said Garland Woodward moved away from Coleman and withdrew from the defense for that reason; that the said Gilliland, who had just been appointed to succeed Garland Woodward as county attorney, withdrew from the defense because of the duties of that office; that appellants then sought to employ .Critz & Woodward, and were advised by them, about the time court convened, that, due to a crowded docket, they could not represent appellants; that court convened on June 15th, and between that date and the date of the trial, June 19th, appellants were constantly in attendance upon the court, for fear said ease would be called for trial, ap-pellee having notified them that he would demand a trial; and that during that time they had consulted every other attorney known to them residing in Coleman, and sought to. employ counsel to represent them on the trial, but that, due to the lack of time to prepare for trial and the complicated character of appellants' defenses, none of said attorneys were willing to take their case; that, not knowing how to apply for a continuance and thinking they had to go to trial, they did so without counsel to represent them; that immediately after said trial appellants sought to employ Dib-rell & Snodgrass, and were told by J. B. Dibrell that he would have his partner, Scott Snodgrass, look into the matter and advise them later; that appellants then returned to their home at Bangs, in Brown county, Tex., where A. E. Metts became ill and was confined to his bed for several days, but that the appellant Ethel Metts returned to Coleman to confer with Dibrell & Shodgrass, and was told by them that they could not represent her; that, having sought unsuccessfully to employ counsel in Coleman, she did not have time nor opportunity to go elsewhere and employ counsel; and that after A. E. Metts recovered from his sickness he used reasonable diligence to secure attorneys and file his motion for a new trial. Appellants also set forth in their motion that they were ignorant of their rights tc a continuance, knew nothing about court procedure, nor how to conduct their own trial, and present their defenses, and that by reason of all of which they have not had their day in court, represented by counsel, and have been deprived of valuable rights as a result.\\nThe right of a party to be represented on the trial of his cause by counsel of his own selection, familiar with his case, is a valuable right, and the unwarranted denial of it is reversible error. Farmers' Gas Co. v. Calame (Tex. Civ. App.) 262 S. W. 548, and numerous authorities there cited. It is true that in the case cited appellant had able counsel, and asked for a continuance because he was unable to be present. In the case at bar, appellants had had counsel, who, through no fault of theirs, had withdrawn from the case immediately before court convened. They appear to have done all they could, under the circumstances, to secure other attorneys, and, having failed to do so, thought they had to submit to trial. They were to all intents and purposes deprived of representation by counsel. It is also obvious, from the record, that they were not permitted to present the defenses as set forth in the answer filed by their .counsel before withdrawing from the case. Appellee contends that the record shows appellants' plea of homestead to be without merit; but that is not the only defense to appellee's suit set forth in appellants' motion. Nor is it clear that appellants were permitted to offer any evidence on this defense.\\nTrue that appellants were late in fil- \\u00edng their motion, but it was filed and acted upon at the same term at which the case was tried. They could have exercised more diligence in procuring counsel and filing such motion sooner, but we think they have excused themselves for not filing it within the two days after trial as required by law. Under all the circumstances, we think they have sufficiently excused themselves for failure to act promptly, and have shown that they did not have a fair trial.\\nThe judgment of the trial court is therefore reversed and the cause remanded for 'another trial.\\nReversed and remanded.\"}"
\ No newline at end of file
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+"{\"id\": \"10336309\", \"name\": \"Oat BURDICK v. STATE\", \"name_abbreviation\": \"Burdick v. State\", \"decision_date\": \"1925-05-27\", \"docket_number\": \"No. 9493\", \"first_page\": \"1115\", \"last_page\": \"1115\", \"citations\": \"272 S.W. 1115\", \"volume\": \"272\", \"reporter\": \"South Western Reporter\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T17:18:39.913121+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Oat BURDICK v. STATE.\", \"head_matter\": \"Oat BURDICK v. STATE.\\n(No. 9493.)\\n(Court of Criminal Appeals of Texas.\\nMay 27, 1925.)\\nAppeal from Criminal District Court, Tarrant County; George E. Hosey, Judge.\\nMays & Mays and Dave Miller, all of Fort Worth, for appellant. Tom Garrard, State\\u2019s Atty., and Grover C. Morris, Asst. State\\u2019s Atty., both of Austin, for the State.\", \"word_count\": \"96\", \"char_count\": \"609\", \"text\": \"HAWKINS, J.\\nConviction is for possessing equipment for the manufacture of intoxicating liquor. Punishment, one year in the penitentiary. The record contains neither bills of exception nor statement of facts. Nothing is presented to this court for review. The judgment is affirmed.\"}"
\ No newline at end of file
diff --git a/tex/11139990.json b/tex/11139990.json
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index 0000000000000000000000000000000000000000..01235a71c926924c4ba1a5b79e2f6d11c5b4579a
--- /dev/null
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@@ -0,0 +1 @@
+"{\"id\": \"11139990\", \"name\": \"In the Interest of C.S., A Child\", \"name_abbreviation\": \"In the Interest of C.S.\", \"decision_date\": \"2000-12-28\", \"docket_number\": \"No. 01-99-01473-CV\", \"first_page\": \"656\", \"last_page\": \"658\", \"citations\": \"36 S.W.3d 656\", \"volume\": \"36\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T00:03:51.268483+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel consists of Justices O\\u2019CONNOR, HEDGES, and PRICE.\", \"parties\": \"In the Interest of C.S., A Child.\", \"head_matter\": \"In the Interest of C.S., A Child.\\nNo. 01-99-01473-CV.\\nCourt of Appeals of Texas, Houston (1st Dist.).\\nDec. 28, 2000.\\nGeorge Anthony Young, Houston, for Appellant.\\nCarol M. Cameron, John B. Holmes, Houston, for Appellee.\\nPanel consists of Justices O\\u2019CONNOR, HEDGES, and PRICE.\\nThe Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.\", \"word_count\": \"814\", \"char_count\": \"4706\", \"text\": \"OPINION\\nO'CONNOR, Justice.\\nC.S., a juvenile and the appellant here, was tried before a master of the juvenile court, who made a finding that the appellant had engaged in delinquent conduct. The master recommended the appellant be committed to the Texas Youth Commission. The juvenile court judge signed a judgment to that effect.\\nOn appeal, the appellant contends a master must comply with Texas Family Code section 54.10, which requires a referee to inform juveniles that they are entitled to a hearing before the juvenile court judge. We agree, and reverse and remand.\\nFactual Background\\nOn May 4, 1999, C.S. was charged with misdemeanor assault for biting another child. The trial court found C.S. engaged in delinquent conduct and assessed punishment of probation for one year. He was placed at the Burnett Bayland Reception Center (BBRC). On August 31, 1999, C.S. was involved in an altercation with another child at BBRC, namely, grabbing and choking him. The State filed a motion to revoke probation.\\nA hearing was conducted on the motion to revoke, where Robert Molder was the master. He admonished C.S. that he had \\\"a right to have a hearing at this trial before the Court.\\\" C.S. made no objection to the master proceeding, and did not sign a written waiver of the right to have the trial before the juvenile judge. Master Molder found the appellant had engaged in delinquent conduct and recommended the appellant be committed to the Texas Youth Commission. The juvenile court judge signed a judgment to that effect.\\nDiscussion\\nIn issue one, C.S. contends the master did not inform him of his right to have the hearing before the juvenile court judge and did not obtain a signed waiver from both C.S. and his attorney of the right to have the case heard by the judge in accordance with Family Code section 54.10(a). In issue two, C.S. asserts Pat Shelton, the judge of the 313th District Court of Harris County, Texas, erred in approving the master's recommendation.\\nIssue one can be divided into two parts. One, was the information provided by the master sufficient to apprise the appellant that he had a right to a hearing before the juvenile court judge? Two, did the master comply with the provisions of Texas Family Code section 54.10(a)(2)?\\n1. Notice of right to hearing\\nThe first part of issue one requires us to determine if the master informed the appellant he had a right to a hearing before the juvenile court judge. The notice of a right to a hearing before a juvenile court judge applies to the statute both before and after the 1999 amendments. The master told C.S., 'You have a right to have a hearing at this trial before the court, but not before the jury.\\\" That was the only information provided to C.S. concerning a hearing before a juvenile court judge.\\nThis statement was not sufficient to inform the appellant he had a right to have the hearing before the juvenile court judge. It does not inform C.S. that Robert Molder was merely a master and not a juvenile court judge, or that he would make findings and recommendations to the juvenile court judge. Section 54.10(a)(1) specifically requires the juvenile be informed of his right to have his hearing conducted before the \\\"juvenile court judge,\\\" not the \\\"court.\\\" It is unclear as to what the master meant by the \\\"court.\\\" As far as C.S. was concerned, they were in the \\\"court\\\" when the statement was made. It is clear from the record that although C.S. was informed of his right to have the hearing before the \\\"court,\\\" he was not specifically informed, as required by Section 54.10(a)(1), of his right to have the hearing before the \\\"juvenile court judge.\\\"\\nAt a minimum, to comply with Section 54.10(a)(1), the master or referee must inform the juvenile that (1) he is entitled to have a hearing before the juvenile court judge, and (2) the referee or master is not a juvenile court judge.\\nWe find the appellant was not informed of his right to have a hearing before the. juvenile court judge. We sustain part one of the appellant's issue one and decline to address the remaining issues.\\nWe reverse the judgment of the trial court and remand this case for further proceedings consistent with the opinion of this Court.\\n. C.S. was removed from his home because he has no father of record and his mother is incarcerated.\"}"
\ No newline at end of file
diff --git a/tex/11185956.json b/tex/11185956.json
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+"{\"id\": \"11185956\", \"name\": \"MEL HANDLING EQUIPMENT CO., INC., Appellant, v. TEXAS WORKERS' COMPENSATION INSURANCE FACILITY, Appellee\", \"name_abbreviation\": \"Mel Handling Equipment Co. v. Texas Workers' Compensation Insurance Facility\", \"decision_date\": \"2000-06-15\", \"docket_number\": \"No. 03-99-00839-CV\", \"first_page\": \"60\", \"last_page\": \"66\", \"citations\": \"26 S.W.3d 60\", \"volume\": \"26\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T17:25:15.019329+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Justices KIDD, B.A. SMITH and POWERS.\", \"parties\": \"MEL HANDLING EQUIPMENT CO., INC., Appellant, v. TEXAS WORKERS\\u2019 COMPENSATION INSURANCE FACILITY, Appellee.\", \"head_matter\": \"MEL HANDLING EQUIPMENT CO., INC., Appellant, v. TEXAS WORKERS\\u2019 COMPENSATION INSURANCE FACILITY, Appellee.\\nNo. 03-99-00839-CV.\\nCourt of Appeals of Texas, Austin.\\nJune 15, 2000.\\nRehearing Overruled Sept. 21, 2000.\\nCharles M. Wilson, III, Dallas, for Appellant.\\nDonald M. Barnett, Reyes Law Firm, Austin, for Appellee.\\nBefore Justices KIDD, B.A. SMITH and POWERS.\\nBefore John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov\\u2019t Code Ann. \\u00a7 74.003(b) (West 1998).\", \"word_count\": \"2922\", \"char_count\": \"19091\", \"text\": \"JOHN E. POWERS, Justice (Retired).\\nThe Texas Workers' Compensation Insurance Facility (the \\\"Facility\\\") recovered summary judgment against Mel Handling Equipment Company, Inc. (the \\\"Company\\\") in the amount of $6,271.36, representing disputed premiums claimed by the Facility under a workers' compensation insurance policy, together with $1,567.84 in attorney's fees and additional sums for interest. The Company appeals. We will reverse the summary judgment and remand the cause to the trial court.\\nTHE CONTROVERSY\\nThe Company purchased from the Texas Workers' Compensation Assigned Risk Pool (the \\\"Pool\\\") a policy of workers' compensation insurance covering the period November 30, 1990, to November 30, 1991. The policy showed a \\\"total Estimated Premium\\\" of $9,353 for the one-year policy. After paying an initial \\\"Deposit Premium\\\" of $2,402, the Company paid additional sums monthly over the life of the policy; the additional monthly payments included adjustments for actual payroll fluctuations during the policy year.\\nAt the end of the one-year period, the Facility, as successor to the Pool, demanded of the Company an additional premium equal to $7,166.87. The additional premium resulted from the Facility's retrospective application of an \\\"experience modifier\\\" and a \\\"tabular surcharge.\\\" The experience modifier resulted from the Company's expected loss rate during the life of the policy, based on the Company's actual loss experience during a time period preceding November 30, 1990, the effective date of the policy. The tabular surcharge was an accompanying charge that resulted automatically from imposition of the experience modifier under an official handbook and table that evidently governed the Facility's operations.\\nThe Company declined to pay the additional $7,166.87 based upon a statement in a binder issued by the Pool, in advance of the policy, which declared that \\\"[n]o Modifier and No Surcharge Will Apply, Subject to Change on Anniversary Rate Date.\\\" Contending the statement was not controlling, the Facility sued the Company in the present cause and recovered the summary judgment from which the Company appeals. The Company contends the Facility was not entitled to judgment as a matter of law under the summary judgment record.\\nTHE SUMMARY JUDGMENT RECORD\\nThe Binder\\nOn December 6, 1990, the Pool issued to the Company a \\\"Binder for Workers' Compensation Insurance\\\" signed by the Pool's general manager. The binder states that it is effective November 30, 1990, that the \\\"Binder shall end\\\" 30 days thereafter, and that \\\"[t]his undertaking will be evidenced by a policy contract to be issued by\\\" Employers Casualty Company \\\"as the servicing company\\\" for the policy. The binder directs Employers Casualty Company to\\nissue the policy with the following special instructions and optional coverages:\\nAll insured entities listed below: Mel Handling Equipment Co., Inc.\\nThis Risk has been Switched to the Servicing Company Shown Above.\\nThe Reporting Basis will be Monthly.\\nNo Modifier and No Surcharge will Apply, Subject to Change on Anniversary Rate Date.\\nProvide Elected Coverage for Proprietors, Partners, Officers.\\nEstimated Annual Premium: $9,353.\\nEnclosures: Application: Deposit Check $2,402.\\n(Emphasis added.)\\nThe Application\\nThe application consists of four pages and bears the heading \\\"Application for Workers' Compensation Insurance \\u2014 The Texas Workers' Compensation Assigned Risk Pool.\\\" The application is signed by Milligan F. Sherard, as president of the Company, and dated by him December 27, 1990. The following statement is found in the application, in capital letters, immediately below the heading:\\nIMPORTANT NOTICE \\u2014 PLEASE READ BEFORE MAKING APPLICATION\\nIT IS IN APPLICANT'S BEST INTEREST TO EXHAUST ALL EFFORTS TO OBTAIN . INSURANCE IN THE PRIVATE MARKET BEFORE MAKING APPLICATION TO THE POOL SINCE HIGHER PREMIUMS MAY RESULT THROUGH POOL SURCHARGES UP TO 50% OF STANDARD PREMIUMS. NO PREMIUM DISCOUNT PAID ON POOL POLICIES.\\nThe application states that the \\\"Total Estimated Annual Premium\\\" is $9,353, payable as follows: a $2,402 \\\"Deposit Premium\\\" and eleven monthly installments thereafter. The Company agrees in the application \\\"[t]o pay as due all monies for premiums under such policy to the Servicing Company,\\\" Employers Casualty Company in this instance, and \\\"[t]hat no insurance coverage will be considered bound by the Pool until [the Company] has received a binder duly executed by the General Manager of the Pool and such insurance shall become effective only from the date . specified by the Pool Manager.\\\"\\nToni Palermo, the Company's insurance agent or \\\"producer of record,\\\" evidently calculated the estimated annual premium of $9,353 shown on the application.\\nThe Policy\\nThe first page of the policy is titled \\\"Information Page.\\\" The Information Page reflects that Employers Casualty Company issued to the Company policy number C-25x2076, providing coverage for the period November 80, 1990, to November 30, 1991. A blank follows the printed statement that \\\"[t]his policy includes these endorsements and schedules.\\\" Notwithstanding the blank, copies of four apparent endorsements follow the information page in the summary judgment record, indicating perhaps that they were attached to the Information Page when it was delivered to the Company. In any case, the four endorsements in the record are not relevant to any issue in the appeal.\\nThe Information Page next declares as follows: The premium for this policy will be determined by our Manuals of Rules, Classifications, Rates and Rating Plans. All information required below is subject to verification and audit. The \\\"information required below\\\" sets forth the classifications and rates that result in the \\\"Estimated Annual Premium\\\" of $9,353, exactly as shown in the Company's application.\\nAudit Papers\\nFive pages in the summary judgment record pertain evidently to the servicing company's audit, the resulting calculations of the experience modifier and tabular surcharge, and the consequent premium increase claimed by the Facility. The pages are titled \\\"Experience Rating Form\\\" dated November 1, 1991; \\\"Payroll Audit Worksheet\\\" dated December 4, 1991, \\\"Audit Summary\\\" dated December 19, 1991; Audit Processing Worksheet dated December 19, 1991; and \\\"Audit Premium Adjustment\\\" dated December 19,1991.\\nThe audit-paper calculations show a \\\"standard premium\\\" and \\\"net earned premium\\\" of $18,958, of which the Company had paid $11,791.13 during the life of the policy, leaving an additional premium due equal to $7,166.87, the amount claimed by the Facility in its original petition and motion for summary judgment.\\nRequest for Endorsement\\nOn November 5, 1991, a person identified as \\\"S.A.\\\" prepared a \\\"Request for Endorsement\\\" addressed to \\\"Direct Underwriting Department.\\\" One section of the printed form is titled \\\"Changes (List effective dates and remarks: Refer to Check list in Activity Guide).\\\" In that section, the following handwritten statement appears:\\nSubst. sched.\\nExp. mod. 1.28\\nTab SC 40%\\nSC letter\\nServicing Company Handbook\\nA copy of the title page of the handbook is found in the record. The page bears the title Texas Workers Compensation Insurance Facility Servicing Company Handbook. The publisher is not indicated. The succeeding page is headed \\\"Rules and Regulations Governing Pool and Servicing Companies of Assigned Risks.\\\" The following appears under that heading:\\nPresent Phraseology\\nV. RATES AND ASSIGNED RISKS\\nRates and Rating Plan used shall be those prescribed by the State Board of Insurance for assigned risks.\\nNew Phraseology\\nV. RATES FOR ASSIGNED RISKS\\nRates and Rating Plan used shall be those prescribed by the State Board of Insurance for assigned Risks.\\nThere shall be a mandatory tabular surcharge plan for all risks having an experience modification in excess of 1.00. The tabular surcharge plan is shown in the Miscellaneous Value rate pages.\\nOn what appears to be the next page of the handbook shown in the summary judgment record is found a table headed \\\"Assigned Risk Pool Tabular Surcharge Plan.\\\" This page lists, under the subheading \\\"Experience Rating Modification,\\\" numbers from \\\"1.00 or less\\\" to \\\"over 2.50.\\\" Opposite these numbers, which appear to be experience modifiers, is shown a corresponding list of numbers under the heading \\\"Tabular Surcharge.\\\" These are apparently percentages. Opposite experience modifiers 1.26 through 1.30 is shown a tabular surcharge of 40%. These are, it appears, the authority for the 1.28 experience modifier developed in the Audit Papers and the corresponding 40% surcharge claimed by the Facility in the present case.\\nUpon the foregoing rests the summary judgment obtained by the Facility insofar as the issues on appeal are concerned.\\nDISCUSSION AND HOLDINGS\\nThe Company contends the summary judgment record will not sustain judgment as a matter of law on the Facility's claim for the additional $6,271.36 premium resulting from the experience modifier and tabular surcharge. We agree.\\nThe Facility evidently recovered judgment on a theory the Facility argues in this Court: The application form completed by the Company bore a printed warning that \\\"higher premiums may result through Pool surcharges up to 50% of standard premiums\\\"; and the policy issued to the Company bore a printed declaration that \\\"[t]he premium for this policy will be determined by our Manual of Rules, Classifications, Rates and Rating Plans.\\\" Thus, the Facility contends, the additional premium resulting from application of the experience modifier and requisite tabular surcharge were well within the language of the application, the policy, and the manual specified.\\nThe Facility also reasons that application of the experience modifier and tabular surcharge were not prohibited by the typewritten special instruction inserted in the binder, which directed that \\\"No Modifier and No Surcharge will Apply, Subject to Change on Anniversary Rate Date.\\\" The Facility explains that this statement meant simply that the estimated premiums reflected in the binder and policy were subject to change on the anniversary of the policy (November 30,1991) when the modifier and surcharge would be calculated and imposed retroactively; but, no modifier and no surcharge would be collected during the one-year life of the policy. And because the additional premiums resulting from imposition of the experience modifier and tabular surcharge were made effective on or after the anniversary date, the additional premium was within the permissive terms of the binder, so interpreted.\\nWe believe it may be possible to infer such a meaning from the statement in question. But it is also a reasonable interpretation that the statement means, as the Company contends, that no experience modifier and no surcharge would be imposed during the life of the policy ending November 30, 1991, but were permissible on any renewal of coverage for another period. The most that can be said for the Facility's position regarding the statement in the binder is that the statement is ambiguous. And the contrary meaning for which the Company contends is reinforced by the fact that the summary judgment record does not reflect that an endorsement, authorizing application of the experience modifier and tabular surcharge, was attached to the policy when it was delivered; nor does the record indicate that such an endorsement was issued thereafter. An endorsement was essential as a matter of law before any experience modifier and tabular surcharge could lawfully be imposed.\\nThe Department of Insurance (formerly the State Board of Insurance) promulgates standard policies for workers' compensation insurance as well as rate classifications and premium plans. The Department's promulgation of premium rates may take the form of premium rating plans by which premiums are calculated through application of a premium rate to the employer's total payroll. See Tex. Ins. Code Ann. art. 5.77 (West 1981); Union Indem. Co. v. Foley, 62 S.W.2d 684 (Tex.Civ.App.\\u2014Fort Worth 1933, writ dism'd). The resulting rates are exclusive and no others may be fixed by contract. See T.E.I.A. v. Russell, 127 Tex. 230, 91 S.W.2d 317, 319 (1936).\\nPremium rating plans promulgated by the Department may be either prospective or retrospective in their application. See Tex. Ins.Code Ann. art. 5.77 (West 1981). In the present case, the Facility contends the applicable rating plan authorized a retrospective application of the experience modifier and tabular surcharge. We will, for purposes of discussion, assume such is the case even though the rating plan upon which the Facility relies is not contained in the summary judgment record.\\nThe policy forms promulgated by the Department are also exclusive. Insurers writing workers' compensation insurance must use the official or \\\"standard\\\" policies. See id. art. 5.56 (West Supp.2000). The official or standard policies may be modified only by written endorsements that have been submitted to and approved by the Commissioner of Insurance. See id. art. 5.57 (West 1981).\\nThe Department compiled and published its Texas Basic Manual of Rules, Classifications and Rates for Workers' Compensation and Employers' Liability Insurance (1980 ed.). One section of the manual is titled \\\"Texas Standard Workers [sic] Compensation and Employers [sic] Liability Endorsements, . Effective July 1,1984.\\\" The first page of that section declares that the endorsement forms that follow the first page are \\\"the only endorsements permissible for use in affording Texas Worker [sic] Compensation and Employers [sic] liability coverages \\u2014 mandatory on and after July 1, 1984.\\\" One form that follows is numbered WC 42 04 03, titled \\\"Texas Experience Rating Modification Factor Endorsement,\\\" and states as follows:\\nThe premium for the policy will be adjusted by an experience rating modification factor, if any, which was not available when the policy was issued. We will issue an endorsement to show the proper factor when it is calculated.\\nThe notes accompanying the endorsement instruct as follows:\\n1. This endorsement may be used if the insured's experience rating modification factor is not available when the policy is issued.\\n2. An appropriate typewritten entry may be made in the Information Page instead of using this endorsement.\\nThe Information Page of the policy shown in the summary judgment record does not contain \\\"[a]n appropriate typewritten entry\\\" of the kind indicated. The summary judgment record does not contain an endorsement authorizing an experience rating modification that was not available when the policy was issued, on a form approved by the Commissioner of Insurance, which is among \\\"the only endorsements permissible for use in affording\\\" workers' compensation coverage. Because the Department's official or standard policies may be modified only by such written endorsements, we cannot say as a matter of law that the Facility was authorized to impose the additional premium based on the experience modifier and corresponding tabular surcharge.\\nWe reverse the summary judgment for the reasons stated and remand the cause to the trial court for further proceedings.\\n. The Texas Workers' Compensation Assigned Risk Pool (the \\\"Pool'') wrote the policy under which the Facility claimed the premiums in controversy here. The Pool was established by former article 5.76 of the Texas Insurance Code, which required the Pool to furnish workers' compensation coverage to employers who could not obtain such coverage in the voluntary market from either the Texas Employer Insurance Association or another authorized carrier, and were thus \\\"rejected risks.\\\" On an employer's application, the Pool calculated a deposit premium in accordance with rates and classifications promulgated by the State Board of Insurance (now the State Department of Insurance). After receiving a deposit, the Pool designated one of several \\\"servicing companies\\\"' \\u2014 independent carriers who were members of the Pool \\u2014 to issue the policy for the Pool. The servicing companies were reinsurers of the insurance thus provided by the Pool. See Tex. Ins.Code Ann. art. 5.76 (West 1981); Lemer, Workers' Compensation Law and Practice, 37 Texas Practice \\u00a7 5.04 at 347-48 (1989).\\nThe Facility, a private, non-profit, unincorporated association of insurers, succeeded to the Pool's functions on January 1, 1991, shortly after the Pool issued to the Company the policy involved in the present litigation. The Facility ceased writing workers' compensation insurance on December 31, 1993, after which the Texas Workers' Compensation Insurance Fund became insurer of last resort for such coverage. See Tex. Ins.Code Ann. art. 5.76-4 (West Supp.2000); Turner Bros. Trucking Co., Inc. v. Commissioner of Ins., 912 S.W.2d 386, 387 n. 1, 2 (Tex.App.\\u2014Austin 1995, no writ).\\n.The application and policy show the following premium calculations:\\nClassification Code_Payroll Rate Premium\\n8107 $ 81,564 9.67 $ 7,887\\n8809 22,100 .78 172\\nPool-rate Differential (15%) 1,209\\nExpense Constant 85\\nTotal Estimated Premium $ 9,353\\nThe additional premiums resulting from the Facility's audits and imposition of the experience modifier and tabular surcharge produced the following additional premiums claimed by the Facility:\\nClassification Code_Payroll Rate Premium\\n8107 $ 92,926 9.67 $ 8,986\\n8809 22,100 .78 172\\nPool-rate Differential (15%) 1,374\\nExperience Modifier 1.28 2,949\\nTabular Surcharge (40%) 5,392\\nExpense Constant 85\\nTotal Annual Premium $ 18,95 8\\n. The Company's policy provided coverage from November 30, 1990, to November 30, 1991. The Facility was under a duty to make a timely computation of the final premium resulting from retrospective application of the experience modifier and tabular surcharge. If we understand correctly the audit papers, the computation was not done in this instance until after expiration of the policy on November 30, 1991. The Company has not, however, complained that the computation was not timely. See Monarch Life Ins. Co. v. Trinity Indus., Inc., 495 S.W.2d 41, 43-44 (Tex.Civ.App.\\u2014Dallas 1973, no writ); see generally 14 Appleman on Insurance \\u00a7 7849.25 at 143 (1985).\\n. See supra n. 2. The Facility moved for summary judgment in the principal amount of $7,166.87, the amount claimed in the Facility's petition to be due and owing. The Facility recovered summary judgment, however, in the amount of $6,271.36. The latter amount results from the Facility's answer to a written interrogatory conceding that the \\\"current balance due\\\" is $6,271.36.\\n. The manual referred to is not in the summary judgment record.\"}"
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+"{\"id\": \"11243813\", \"name\": \"SAINT PAUL SURPLUS LINES INS. CO., Appellant, v. GEO PIPE CO. and Geo Int'l Corp., Appellees\", \"name_abbreviation\": \"Saint Paul Surplus Lines Ins. Co. v. Geo Pipe Co.\", \"decision_date\": \"2000-08-10\", \"docket_number\": \"No. 01-98-00294-CV\", \"first_page\": \"900\", \"last_page\": \"908\", \"citations\": \"25 S.W.3d 900\", \"volume\": \"25\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:35:05.507935+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel consists of Chief Justice SCHNEIDER, and Justices ANDELL and DUGGAN.\", \"parties\": \"SAINT PAUL SURPLUS LINES INS. CO., Appellant, v. GEO PIPE CO. and Geo Int\\u2019l Corp., Appellees.\", \"head_matter\": \"SAINT PAUL SURPLUS LINES INS. CO., Appellant, v. GEO PIPE CO. and Geo Int\\u2019l Corp., Appellees.\\nNo. 01-98-00294-CV.\\nCourt of Appeals of Texas, Houston (1st Dist.).\\nAug. 10, 2000.\\nJ. Stephen Gibson, Michael Wallace Huddleston, Keren Keltz, Dallas, for Appellant.\\nJ. James Cooper, Stacy R. Obenhaus, Marie R. Yeates, Gwen Samora, Houston, for Appellee.\\nPanel consists of Chief Justice SCHNEIDER, and Justices ANDELL and DUGGAN.\\nThe Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, sitting by assignment.\", \"word_count\": \"4403\", \"char_count\": \"26902\", \"text\": \"OPINION ON REHEARING\\nLEE DUGGAN, Jr., Justice (Retired).\\nAppellant has filed a motion for rehearing. That motion is denied. However, we withdraw our opinion dated April 20, 2000 and substitute this opinion in its place.\\nThis is an appeal of a plaintiffs summary judgment in favor of the insured appellees, Geo Pipe Company (\\\"Geo Pipe\\\") and its corporate parent, Geo International Corporation (\\\"Geo International\\\"), in an insurance coverage dispute with appellant, St. Paul Surplus Lines Insurance Company (\\\"St.Paul\\\"), appellees' general liability insurer.\\nGeo International contracted with St. Paul in Illinois for insurance coverage (\\\"the St. Paul policy\\\") for itself and its subsidiaries and related affiliates. Several months after the St. Paul policy was issued, Geo International added Geo Pipe as a named insured, effective October 1, 1992. Most of Geo Pipe's business is done in Texas and Louisiana.\\nPrior to the St. Paul pokey's effective date, Geo Pipe sold chrome tubing to Walter Oil & Gas Corporation ('Walter Oil\\\") to be delivered to Galveston, Texas and installed in Walter Oil's offshore well.\\nIn May 1992, Walter Oil personnel detected a problem with constant pressure in the well. In July 1992, Walter Oil performed an initial \\\"workover\\\" and replaced the seals in the well's tubing. By August 1992, still before the effective date of the St. Paul policy, the pressure problem had returned. Walter Oil eventually took corrective action in March 1993, discovered a hole or \\\"washout\\\" in a joint of the tubing, and replaced the tubing.\\nWalter Oil demanded $1,628,348 from Geo Pipe for its workover costs of removing and replacing the tubing. Geo Pipe first reported Walter Oil's claim to its insurers before the effective date of the St. Paul policy. When the prior insurers disputed that the loss occurred during their policy period, Geo Pipe forwarded the claim to St. Paul, which declined coverage.\\nWalter Oil sued Geo Pipe in 1994, alleging breach of contract, breach of express and implied warranties, and negligence in supplying defective tubing. Walter Oil sought damages for (1) shutdown of the well; (2) removal of defective tubing; (3) purchase and installation of replacement tubing; and (4) lost profits incurred from loss of production.\\nBefore the suit went to trial, Geo Pipe declared bankruptcy. Under the bankruptcy court's supervision, Geo Pipe assigned its claim against St. Paul for breach of contract to Walter Oil in exchange for Walter Oil's agreement to satisfy any judgment against Geo Pipe solely from liability insurance proceeds. The case was never tried. Instead, in a proceeding contested by St. Paul as part of this appeal, Walter O\\u00f1 and Geo Pipe entered an agreed judgment against Geo Pipe, approved by the trial court, awarding Walter Oil $1,800,000 in damages.\\nAs Geo Pipe's assignee, Walter Oil then sued St. Paul and Geo Pipe's prior insurers and filed a motion for summary judgment against St. Paul on Geo Pipe's breach of contract claim. After a hearing, the trial court (1) determined that all issues between Geo Pipe and St. Paul were governed by Illinois law, (2) granted the summary judgment in favor of Walter Oil as assignee, and (3) awarded $1,000,000 in damages, $149,158.13 in prejudgment interest, and post-judgment interest. The trial court severed and abated the remaining causes of action against St. Paul and the prior insurers pending the resolution of this appeal.\\nOn appeal, St. Paul asserts in its first point of error that the trial court erred in granting summary judgment on the breach of contract claim because St. Paul had no duty to defend Geo Pipe under the policy.\\nThe parties agree that construction of the policy language and the determination of a duty to defend is the same under Texas and Illinois law, and that choice of law analysis is relevant only to the effect of a breach of contract if a duty to defend is found. We therefore construe the policy and analyze St. Paul's duty to defend un der Texas law.\\nTexas courts apply the \\\"eight corners\\\" rule to determine whether the duty to defend applies \\u2014 i.e., the Court compares the plaintiffs pleading allegations to the provisions of the insurance contract, without regard to the facts that eventually come out during discovery and trial. See National Union Fire Ins. Co. v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997); Texas Property and Cas. Ins. Guar. Assoc. v. Southwest Aggregates, Inc., 982 S.W.2d 600, 604 (Tex.App.\\u2014Austin 1998, no pet.).\\nThe duty to defend and duty to indemnify are distinct and separate. Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 821-22 (Tex.1997). The duty to defend arises when the plaintiff alleges facts that potentially support claims for which there is coverage. National Union, 939 S.W.2d at 141. The duty to defend is determined from the face of the pleading, without regard to ultimate truth or falsity of the allegations. Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 24 (Tex.1965). The focus of this inquiry is on the facts alleged, however, not on legal theories. See Maayeh v. Trinity Lloyds Ins. Co., 850 S.W.2d 193, 195 (Tex.App.\\u2014Dallas 1992, no writ). Further, we \\\"liberally construe the allegations in the petition in determining the duty to defend, resolving any doubt in favor of the insured,\\\" though we do not read any facts into the pleadings for that purpose. Trinity Universal, 945 S.W.2d at 825.\\nGeneral policy coverage\\nThe policy obligates St. Paul to pay amounts Geo Pipe \\\"is legally required to pay as damages for covered bodily injury, property damage or fire damage that:\\n\\u2022 happens while this agreement is in effect; and\\n\\u2022 is caused by an event.\\\"\\nThe policy defines an \\\"event\\\" as \\\"an accident; including continuous or repeated exposure to substantially the same general harmful conditions.\\\" \\\"Property damage\\\" is defined as\\n\\u2022 physical damage to tangible property of others, including all resulting loss of use of that property; or\\n\\u2022 loss of use of tangible property of others that isn't physically damaged.\\nPolicy exclusions\\nThe policy provides two relevant exclusions. First, the policy excludes damage \\\"to any of your products (i.e. Geo pipe's tubing) that's caused by the product itself or by any of its parts.\\\" Second, the policy excludes \\\"impaired property\\\":\\nWe won't cover property damage to impaired property, or property that hasn't been physically damaged, that's caused by;\\n\\u2022 your faulty . products or completed work; or\\n\\u2022 a delay in fulfilling the terms of a contract or agreement.\\nThe policy defines \\\"impaired property\\\" as\\ntangible property, other than your products or completed work, that can only be restored to use by:\\n\\u2022 the adjustment, repair, replacement or removal of your products or completed work which forms a part of it; or\\n\\u2022 your fulfilling the terms of a contract or agreement.\\nThus, St. Paul's policy generally excludes coverage for (1) damages to Geo Pipe's own products (the tubing it sold to Walter Oil) or (2) property damage (defined as both physical damage and damages arising from loss of use) to a third person's impaired property (Walter Oil's well) caused by Geo Pipe's tubing.\\nThe exception to the exclusions\\nAn exception to the application of these exclusions is that the policy will cover damages for the loss of use of a third person's property if caused \\\"by sudden and accidental physical damage\\\" to Geo Pipe's products:\\n[W]e won't apply this exclusion to damages that result from the loss of use of other property not physically damaged that's caused by sudden and accidental physical damage to your products or completed work after they've been put to their intended use. For example:\\nYou supply an electric motor to a customer who uses it to power his conveyor. The motor's shaft breaks several days later while he's operating the conveyor. The conveyor isn't damaged, but your customer has extra costs because he's unable to use it until the motor is repaired. If he sues you to recover those costs, we won't apply the exclusion. However, if the customer discovers while hooking the motor up to the conveyor that the motor's shaft is broken, we won't protect you.\\n(Emphasis in the original).\\nWalter Oil's allegations\\nWalter Oil alleged in its petition that it drilled the offshore well in the spring of 1992, commenced production in May 1992, and \\\"[tjhereafter, and continuing through the winter of 1993, there was constant pressure in the casing.\\\" The petition alleged that the cause of the pressure was unknown, that Walter Oil properly used the tubing at all times, and that it discovered a hole or \\\"washout\\\" in a joint of the tubing during a workover in March 1993. The petition alleged that the tubing was chrome and had been welded, and that this \\\"weld corroded, thereby causing the washout\\\" (emphasis added). Walter Oil argued this product defect was a cause of the \\\"failure of the tubing in question.\\\"\\nOn appeal, St. Paul argues that Walter Oil's pleadings do not allege sudden and accidental property damage, while Walter Oil as Geo Pipe's assignee argues this exception was met by the allegation of a hole or washout in the tubing.\\nTwo Texas decisions are helpful on the question whether a hole caused by corrosion is sudden and accidental. In Pioneer Chlor Alkali Co., Inc. v. Royal Indem. Co., the Fourteenth Court of Appeals was faced with a duty to defend claim involving a chlorine liquifier that developed four holes in three of its tubes through corrosion, which in turn led to another corrosive hole in an elbow of downstream piping and resulted in the sudden release of 42 tons of chlorine into the atmosphere. See 879 S.W.2d 920, 925 (Tex.App.\\u2014Houston [14th Dist.] 1994, no writ). The insurance policy in question specifically excluded corrosion from coverage under the policy, but covered a \\\"sudden and accidental breakdown\\\" of the equipment in question. Id. The Pioneer court drew a distinction between corrosion damage and the sudden and accidental release of gas into the atmosphere:\\n[The insured] admits that the tubes damaged because of the direct steam of brine concentrated onto the tubes would not be covered because that damage is corrosion damage; however, the damage caused by the sudden and accidental release of forty-two tons of chlorine would be.\\nId. at 934. The court also noted that, although corrosion was slow, the breach of the tubes fit the definition of sudden and accidental. Id. at 937.\\nTo the extent that Pioneer held that the holes in the tubes constituted sudden and accidental physical damage, we disagree. A hole caused by corrosion is necessarily gradual. But a fairer reading of the Pioneer decision would be that although the tubes corroded gradually, the damage complained of was due to a sudden and accidental release of forty-two tons of chlorine as the tubes were breached. That is, though the corrosion ate away the tubes gradually, the release of chlorine was virtually instantaneous.\\nA case more closely on point with the instant situation is Mesa Operating Co. v. California Union Ins. Co., 986 S.W.2d 749 (Tex.App.\\u2014Dallas 1999, pet. denied). In Mesa, the well casing in an underground well had corroded and allowed salt water to escape into a fresh water aquifer. Id. at 752. The well owner sought recovery from its insurer for its expenses to cure the aquifer and for damages to a landowner who used the aquifer, but the primary insurance policy excluded coverage for injury or property damage caused by pollutants or liquids unless caused by a \\\"sudden and accidental\\\" discharge. Id. at 754. After surveying the law of other states, the Mesa court held that the term \\\"sudden\\\" has a temporal component; i.e., that an event occur abruptly rather than simply unexpectedly. Id. at 755. The court then addressed the argument that, even if the well casing was corroded gradually, the breach of the casing was instantaneous:\\n[The insured] argues that even if the word \\\"sudden\\\" is held to mean \\\"quick\\\" or \\\"abrupt,\\\" the salt water contamination at issue happened \\\"suddenly.\\\" [The insured] reasons that the discharge occurred suddenly because at one point in time the well was whole and, an instant later, salt water breached the well and began escaping into the aquifer. According to [the insured], the fact that the leak was not discovered for a lengthy period of time does not negate the temporal suddenness with which the breach occurred. This argument has been described as the \\\"metaphysical moment\\\" theory. Under the logic of this theory, every event or condition not existing from the dawn of time would be considered \\\"sudden\\\" because at one moment it did not exist and the next moment it did. While we agree that the time of discovery does not control whether the discharge was sudden, we also conclude that a discharge that continues over a lengthy period of time cannot be considered \\\"sudden\\\" as a matter of law. For example, if evidence showed that a container burst, releasing a finite amount of pollution into the surrounding area within a short period of time, this discharge could be considered sudden even though its existence was not discovered for several years. Contrastingly, a leak of a pollutant that continues long past the point of the ini tial release will not be considered sudden.\\nMesa, 986 S.W.2d at 757 (citations omitted); see also SnyderGeneral Corp. v. Century Indemn. Co., 907 F.Supp. 991, 1001 (N.D.Tex.1995), aff'd in part and vacated in part on other grounds, 113 F.3d 536 (5th Cir.1997) (concluding that the suddenness of discharge can be determined from the period of time that commences with the release of the contaminant and ends when the flow ceases).\\nThe Mesa court ultimately determined the salt water pollution was not \\\"sudden\\\" because of evidence that the salt water from the underground well leaked into the aquifer for a period of years until it was discovered. Mesa, 986 S.W.2d at 757.\\nWe agree with the Mesa court that the term \\\"sudden\\\" has a temporal component and that an ongoing condition of sufficient duration cannot constitute a sudden event.\\nTurning back to Walter Oil's pleadings and viewing the policy language in the light most favorable to the insured, Walter Oil's pleadings do not allege \\\"sudden and accidental physical damage\\\" within the meaning of the exception to the impaired property exclusion. Walter Oil's entire cause of action is premised upon Geo Pipe's having provided chrome tubing that corroded because it had been welded, resulting in a hole in the pipe. Corrosion has a commonly understood, unambiguous meaning; the verb \\\"corrode\\\" is defined as \\\"to eat away by degrees as if by gnawing; esp: to wear away gradually usu. by chemical action.\\\" Webster's New Collegiate Dictionary, p. 253 (1981). Walter Oil's allegations establish that its claim is that the welded chrome tubing corroded \\u2014 was eaten away by degrees, or wore away gradually \\u2014 until a hole appeared. Such an allegation is one of physical damage that is incremental or gradual, the opposite of \\\"sudden.\\\" Nor do Walter Oil's allegations establish a (temporally) sudden and discrete event such as the abrupt release of 42 tons of chlorine in Pioneer. Rather, Walter Oil's pleadings allege \\\"constant pressure\\\" in the well casing after May 1992 and \\\"continuing through the winter of 1993.\\\" This situation more closely resembles the continuous, non-sudden, release of saltwater after corrosion in the well casing in Mesa.\\nWhile Walter Oil urges that we construe its pleading that a hole appeared as a sudden and accidental event, its literal allegation is that physical damage to the pipe was by corrosion, resulting in constant pressure over a period of months. We cannot construe such damage to the tubing as sudden physical damage.\\nWalter Oil's loss was excluded because it was for property damage to Geo Pipe's products (pipe tubing) and \\\"impaired property\\\" (Walter Oil's well)' \\u2014 \\\"tangible property . that can only be restored to use by . repair, replacement or removal of [Geo Pipe's] products or completed work which forms a part of it.\\\" Further, the loss was not within the policy's \\\"sudden and accidental\\\" exception to the application of these policy exclusions.\\nApplication of the \\\"eight corners\\\" rule comparing Walter Oil's pleadings with the coverage provisions of St. Paul's policy insuring Geo Pipe shows that the loss was excluded under policy terms.\\nIn its motion for rehearing, Walter Oil as Geo Pipe's assignee argues that an Illinois court would interpret \\\"sudden and accidental\\\" differently under Illinois law. Walter Oil points out that the Illinois Supreme Court has interpreted the words \\\"sudden and accidental,\\\" in an insurance policy's pollution exclusion clause, as \\\"unexpected or unintended,\\\" rather than \\\"abrupt, rapid, or swift.\\\" Outboard Marine Corp. v. Liberty Mut. Ins. Co., 154 Ill.2d 90, 180 Ill.Dec. 691, 607 N.E.2d 1204, 1218 (1992). Walter Oil argues that this Court, by applying a temporal requirement to the St. Paul policy's use of the term \\\"sudden and accidental,\\\" has created a conflict with Illinois law that requires choice of law analysis to resolve.\\nOutboard is distinguishable from this case. The Outboard court found that the term \\\"sudden\\\" as used in that particular policy could be interpreted both as abrupt (temporal) and unexpected (non-temporal). Id. Resolving the ambiguity in the insured's favor, the court construed \\\"sudden\\\" as \\\"unexpected or unintended,\\\" the non-temporal definition. Id. The Outboard court was careful, however, to limit its analysis to the facts and policy before it:\\nWe conclude that the two definitions of \\\"sudden\\\" set forth above are both reasonable interpretations of this term in the context in which it appears. Therefore, \\\"sudden\\\" is, at a minimum, ambiguous as used in these policies. In Illinois, ambiguities and doubts in insurance policies are resolved in favor of the insured, especially those that appear in exclusionary clauses. Consequently, in this particular context, we construe \\\"sudden\\\" in favor of OMC and find it to mean unexpected or unintended.\\nId. (emphasis added, citations omitted).\\nIn our case, we are presented not only with the term \\\"sudden and accidental\\\" but also with an example, within the policy, clarifying its meaning. As stated earlier, the policy provided the following example of a sudden and accidental event:\\nYou supply an electric motor to a customer who uses it to power his conveyor. The motor's shaft breaks several days later while he's operating the conveyor. The conveyor isn't damaged, but your customer has extra costs because he's unable to use it until the motor is repaired. If he sues you to recover those costs, we won't apply the exclusion. However, if the customer discovers while hooking the motor up to the conveyor that the motor's shaft is broken, we won't protect you.\\nThe example provided in the policy has two elements. First, the accident immediately (a temporal requirement) prevents the use of the third party's property \\u2014 the customer's motor's shaft breaks and the customer is \\\"unable to use [his property] until the motor is repaired.\\\" (Emphasis added). Second, the event must be unexpected (a non-temporal requirement) \\u2014 if the customer \\\"discovers\\\" the problem ahead of time, the event is excluded. Under this policy, the term \\\"sudden\\\" is thus clarified to mean an abrupt (temporal) and unexpected (non-temporal) event \\u2014 both senses of the word sudden. The Outboard court concluded that \\\"sudden\\\" was ambiguous because of dispositive meanings \\u2014 either abrupt or unexpected \\u2014 and construing the policy in favor of the insured, the court held that \\\"sudden\\\" required only that the event be unexpected. Under this policy, however, the policy example shows that a \\\"sudden and accidental\\\" event must be both abrupt and unexpected. Both are requirements that must be satisfied, and because of the policy example we are not at liberty to choose between them; even under Illinois law there is no ambiguity under this policy.\\nTexas courts have decided that the term \\\"sudden\\\" unambiguously contains a temporal element. See Mesa, 986 S.W.2d at 755; Gulf Metals, 993 S.W.2d at 807; see also Mustang Tractor, 76 F.3d at 92 (construing a policy's use of the term \\\"sudden\\\" under Texas law). But assuming, without deciding, that Illinois law applied to the St. Paul policy (and that corrosion resulting in a pressure problem, of which Walter Oil was aware before the policy's effective date, is truly an \\\"unanticipated\\\" event), we conclude an Illinois court would find the term \\\"sudden and accidental,\\\" as defined by example in this particular policy, unambiguously includes a temporal component. To reiterate, whether under Texas or Illinois law, gradual corrosion, resulting in a pressure problem lasting more than a half-year before the well was eventually shut down and repaired, does not constitute a \\\"sudden\\\" event under the St. Paul policy rendering Walter Oil's property unusable until repaired.\\nSt. Paul therefore did not breach its duty to defend Geo Pipe under the policy. St. Paul's first point of error is sustained. Because this point is dispositive, we do not consider St. Paul's remaining points.\\nThe summary judgment is reversed, and the cause is remanded to the trial court.\\n. James Looke, a representative of Walter Oil, testified in a deposition that three days after the well originally went on production, Walter Oil noticed an increase in casing pressure in the well. He said that the casing pressure should ordinarily be lower than the pressure in the well's pipe. He also testified that a well with increased casing pressure could continue to be used, \\\"but it's not a safe situation to have.\\\" He stated that Walter Oil employees originally attributed the pressure to a problem with leakage in the seals, threads, or packer, though ultimately they discovered a hole in the pipe tubing. His final analysis of the cause of the problem was that \\\"the pressure went up due to the hole in the pipe, and the hole probably started off as a small leak and then got bigger and bigger and bigger.\\\" He also conceded that although Walter Oil could have worked over the well to determine the cause of the pressure problem from November 1992 through March 1993, it kept operating the well until March because of high gas prices during the winter. Though our analysis in this opinion is confined to Walter Oil's pleadings in its suit against Geo Pipe and to the language of the St. Paul policy, we set out this testimony as helpful background information.\\n. In its motion for rehearing, however, Walter Oil as Geo Pipe's assignee argues that our interpretation of the policy term, \\\"sudden and accidental,\\\" is at variance with Illinois law, necessitating a new opinion with choice of law analysis to determine which forum's law governs the determination of the duty to defend. As will be explained below, whether under Texas or Illinois law, we find that this particular policy language would be interpreted the same way. In the absence of a true conflict of law, we do not undertake choice of law analysis. See generally Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 419 (Tex.1984) (determining that, before undertaking choice of law analysis, the Court \\\"must first determine whether there is a difference between the rules of Texas and New Mexico on this issue\\\"); Ford Motor Co. v. Aguiniga, 9 S.W.3d 252, 260 (Tex.App.\\u2014San Antonio 1999, no pet.) (initially determining whether there was a \\\"conflict of law which would necessitate the trial court to decide a choice of law issue\\\" before conducting choice of law analysis); Hull & Co., Inc. v. Chandler, 889 S.W.2d 513, 517 (Tex.App.\\u2014Houston [14th Dist.] 1994, writ denied) (noting that a party must ordinarily cite the conflicting law of another forum \\\"before undertaking a choice-of-law analysis so that the court can determine whether a true conflict of laws exists\\\").\\n. The Mesa decision is the first Texas decision to reach this precise issue; the Pioneer decision never expressly addresses whether the term \\\"sudden\\\" implies a temporal component. See Mesa, 986 S.W.2d at 755-56 (discussing Pioneer's analysis of the phrase \\\"sudden and accidental\\\"). Subsequently, the Austin Court of Appeals determined similarly that \\\"the word 'sudden' clearly and unambiguously imparts a sense of temporal urgency\\\" in comprehensive general liability policies. Gulf Metals Indus., Inc. v. Chicago Ins. Co., 993 S.W.2d 800, 807 (Tex.App.\\u2014Austin 1999, pet. denied). See also Mustang Tractor & Equip. Co. v. Liberty Mut. Ins. Co., 76 F.3d 89, 92 (5th Cir.1996) (determining that, \\\"[u]nder Texas rules of construction, . 'sudden' must be read to include a temporal element\\\").\\n. Walter Oil also argues that the cases cited by this decision involve pollution exclusion clauses and are inapplicable to Geo Pipe's appeal. However, the case it cites to show that the word \\\"sudden\\\" does not necessitate a temporal requirement, Outboard, involves a pollution exclusion clause. We find the discussion of \\\"sudden and accidental\\\" in pollution exclusion clauses in other decisions relevant to the meaning of the term in this policy.\\n. St. Paul's remaining points of error generally are premised on the choice of law governing the effect of the breach of a duty to defend. Illinois law, unlike that of Texas, es-tops an insurer from contesting indemnification coverage once the duty to defend has been breached. Compare Thornton v. Paul, 74 Ill.2d 132, 23 Ill.Dec. 541, 384 N.E.2d 335, 340 (1978) (observing that an insurer's wrongful failure to defend \\\"estop[s] the insurer from later raising policy defenses or noncoverage in a subsequent action by the insured or by a judgment creditor in garnishment\\\") with Texas Farmers Ins. Co. v. McGuire, 744 S.W.2d 601, 602-03 (Tex.1988) (\\\"The doctrine of estoppel cannot be used to create insurance coverage when none exists by the terms of the policy.\\\"). St. Paul argues alternatively that even if there was a duty to defend, (1) the trial court erred in applying Illinois law to the St. Paul policy; (2) Geo Pipe's assignment of its rights against St. Paul to Walter Oil was invalid under Texas law; and (3) there was insufficient proof of damages to support the trial court's award under Texas law. Because we have concluded St. Paul did not breach its duty to defend, we do not address whether the trial court should have applied Texas law to the remaining issues.\"}"
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+"{\"id\": \"11308921\", \"name\": \"Bruce Patrick WILSON, Appellant, v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Wilson v. State\", \"decision_date\": \"1984-09-26\", \"docket_number\": \"No. 687-82\", \"first_page\": \"518\", \"last_page\": \"524\", \"citations\": \"677 S.W.2d 518\", \"volume\": \"677\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T23:31:09.053537+00:00\", \"provenance\": \"CAP\", \"judges\": \"W.C. DAVIS, J., concurs in result.\", \"parties\": \"Bruce Patrick WILSON, Appellant, v. The STATE of Texas, Appellee.\", \"head_matter\": \"Bruce Patrick WILSON, Appellant, v. The STATE of Texas, Appellee.\\nNo. 687-82.\\nCourt of Criminal Appeals of Texas, En Banc.\\nSept. 26, 1984.\\nRoss Teter, Dallas, for appellant.\\nHenry Wade, Dist. Atty., and R. K. Weaver, Steve Wilensky and Robert Wha-ley, Asst. Dist. Attys., Dallas, Robert Hut-tash, State\\u2019s Atty., Austin, for the State.\", \"word_count\": \"2822\", \"char_count\": \"17029\", \"text\": \"OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW\\nTEAGUE, Justice.\\nBruce Patrick Wilson, appellant, was convicted by a jury in the trial court of attempted burglary and his punishment, enhanced, was assessed by the trial judge at life imprisonment. He appealed his conviction and sentence to the El Paso Court of Appeals. He asserted on appeal in one ground of error that one of the prior convictions that had been alleged for enhancement of punishment should not have been used to enhance his punishment to life imprisonment because it was based upon a void judgment and sentence.\\nThe El Paso Court of Appeals, after it found that a variance existed between the alleged prior felony conviction that appellant had attacked in the trial court and on appeal and the proof adduced to support the allegation, affirmed appellant's conviction but remanded the cause to the trial court for reassessment of punishment. See Wilson v. State, 633 S.W.2d 952 (Tex.App.\\u2014El Paso 1982). The authority the court of appeals used was this Court's decision of Aaron v. State, 546 S.W.2d 277 (Tex.Cr.App.1976), in which this Court had held that a variance existed between the allegations and the proof, when an indictment alleges the offense of \\\"attempted burglary,\\\" but the sentence reflects that the offense was \\\"simple burglary.\\\"\\nWe granted the State's petition for discretionary review, see Todd v. State, 661 S.W.2d 116 (Tex.Cr.App.1983), in order to make the determination whether this Court's decision of Aaron v. State, supra, is in conflict with this Court's recent deci sion of Hall v. State, 619 S.W.2d 156 (Tex.Cr.App.1980). The State urges in its petition that this Court should reconcile Aaron and Hall if it can, but if it finds that Aaron conflicts with Hall, then it should overrule Aaron.\\nWe find that before we reach the issue that is before us, we must first discuss one other issue that is in the case, namely, the admissibility of the \\\"Nunc Pro Tunc Order\\\" that was presumably admitted into evidence pursuant to the provisions of Art. 3720, V.A.C.S.\\nThe indictment in this cause alleges that appellant had been finally convicted of two prior felony convictions. Appellant pled \\\"Not Guilty\\\" to the primary charge and \\\"Not True\\\" to the enhancement allegations. The issue of the validity of the alleged prior felony conviction which appellant attached on appeal arose during appellant's trial when the prosecuting attorney made it known he was going to impeach appellant with it on cross-examination.\\nThe judgment and sentence of the prior felony conviction that appellant attacks, which is in the record of appeal, reflects that appellant was previously convicted on December 19, 1974, of the offense of burglary of a habitation, \\\"as charged in the indictment,\\\" and punishment was assessed at four (4) years' confinement in the penitentiary.\\nThe offense of burglary of a habitation, however, is a first degree felony, see Y.T. C.A., Penal Code, Section 30.02 (d), which at the time of appellant's conviction had a range of punishment of not less than 5 years nor more than 99 years' confinement or life imprisonment in the penitentiary and a fine of up to $10,000. See Y.T.C.A., Penal Code, Section 12.32. Thus, the minimum possible punishment that could have been assessed by the trial judge for the offense of burglary of a habitation was 5 years' confinement in the penitentiary, not 4 years' confinement as the written judgment reflects, because this was below the minimum punishment permitted by law. The written sentence, which placed into execution the written judgment, tracks in all things the written judgment of the convicting court.\\nAlthough the record is not exactly clear how it occurred, nevertheless, the record reflects that during trial the State filed with the convicting court a motion to have the judgment and sentence corrected, \\\"nunc pro tunc,\\\" after which a hearing was held and the presiding judge of the convicting court soon thereafter entered a \\\"Nunc Pro Tunc Order.\\\"\\nThe Latin phrase, \\\"Nunc Pro Tunc,\\\" literally means \\\"Now for then.\\\" It merely describes the inherent power that a court has to make its records speak the truth, i.e., to correct now what the record actually reflects had occurred at some time in the past. 964 Black's Law Dictionary (5th Edition).\\nHowever, judicial, as distinguished from clerical, errors may not be corrected by a nunc pro tunc judgment, and a motion for judgment nunc pro tunc, seeking to correct a judicial mistake as distinguished from a clerical mistake or omission, is not sufficient to constitute an equity proceeding in the nature of a bill of review. 33 Tex.Jur.2d Sec. 29.\\nThus, before a judgment nunc pro tunc may be entered, there must be proof that the proposed judgment was therefore actually rendered or pronounced at an earlier time. 25 Tex.Jur.3d Sec. 3641. Other than his assertion that the judgment nunc pro tunc \\\"is uncertified,\\\" appellant makes no attack on the sufficiency of the \\\"Nunc Pro Tunc Order\\\" that was signed by the presiding judge of the convicting court.\\nThe record reflects that at the punishment stage of the trial, the trial judge, over objection, took \\\"judicial notice\\\" of the fact \\\"that Judge Zimmerman [the presiding judge of the convicting court] has entered the order and his order is based on the testimony he heard. I will accept Judge Zimmerman's certification [sic] of that.\\\" Notwithstanding that there is not anything in this record, such as the docket sheet, the indictment, a transcription of the court reporter's notes, or the minutes of the court, that would reflect what occurred in the past that causes the judgment and sentence that relates to the challenged prior felony conviction not to actually reflect what transpired at the time they were entered in the minutes of the trial court on December 19, 1974, if, either because of \\\"judicial notice\\\" or some other legal reason, the document was admissible evidence, it would cure the defect regarding the prior felony conviction which appellant complained of in the trial court and on appeal.\\nWe also point out that we are not privy to what occurred at the hearing that occurred on the State's motion to correct the judgment and sentence, nunc pro tunc, because a transcription of that proceeding is not in this record of appeal. Interestingly, however, the \\\"Nunc Pro Tunc Order\\\" reflects the following: \\\"The Court further finds that a correct judgment and sentence was entered by the trial court on December 19, 1974, but incorrectly entered in the minutes of the Court...\\\"' To read this portion of the order literally would allow for an unwarranted contradiction to take place. We do not do so because we find that it is obvious that the first \\\"entered\\\" should have instead been \\\"rendered.\\\"\\nSince September 1, 1981, a judgment in a criminal case is a written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant. Art. 42.01, V.A.C.C.P. The judgment in a criminal case, whether the case involves a felony or a misdemeanor, must be entered of record. Art. 42.01, Sections 1 and 3, V.A.C.C.P.\\nHowever, prior to September 1, 1981, Art. 42.01, Section 1, supra, merely provided that \\\"A 'judgment' [was] the declaration of the court entered of record...\\\"\\nThus, prior to the effective date of the amendment, the minutes of a court controlled over any written judgment. At that time, it was the trial court's duty to enter into its minutes a true record of the judgment that was rendered. \\\"Entered of record,\\\" as applied to a judgment in a criminal case, means \\\"entered in the minutes of the court.\\\" Moore v. State, 245 S.W.2d 491 (Tex.Cr.App.1952). The term \\\"entered,\\\" as used in that instance, however, is not synonymous with the term \\\"signed,\\\" but has a definite fixed legal meaning and refers to the ministerial act of the clerk in spreading the court's judgment in the minutes of the court. Thus, prior to the above amendment, the minutes of a court were the memoranda of what took place in court, made by authority of the court.\\nWe conclude that the convicting court had the inherent power to correct its minutes to correctly reflect what the judgment of the court was, namely, that appellant had been convicted, not of the offense of burglary of a habitation, but, instead, had been convicted of the offense of burglary of a building. The offense of burglary of a building may be a lesser included offense of the offense of burglary of a habitation. Jones v. State, 532 S.W.2d 596 (Tex.Cr.App.1976).\\nHowever, and notwithstanding that we have found that the convicting court had the inherent power to correct its records relating to the complained of prior felony conviction, we must next decide whether the \\\"Nunc Pro Tunc Order\\\" that Judge Zimmerman purportedly signed was properly admitted into evidence at the punishment stage of the trial. We hold that it was not admissible evidence.\\nThe record reflects that the prosecuting attorney, over objection, merely had the document marked and offered it into evidence. The trial judge then admitted it into evidence.\\nUnder Art. 3720, V.A.C.S., a judicial record is self-proving provided that the requirements of the statute are satisfied. The statute provides: \\\"Copies of the records and filed papers... [of] courts of this State, certified to under the hand, and the seal if there be one, of the lawful possessor of such records, should be admitted as evidence in all cases where the records themselves would be admissible.\\\" If, however, the conditions of the statute are not satisfied, then the document represents nothing less than hearsay evidence, and, of course, hearsay evidence has no probative value. Salas v. State, 403 S.W.2d 440 (Tex.Cr.App.1966).\\nThe record reflects that State's exhibit number 14A, which was the \\\"Nunc Pro Tunc Order\\\" purportedly signed by Judge Zimmerman, was, standing alone, hearsay evidence. However, Art. 3720, supra, creates a qualified exception to the hearsay rule of evidence. We find in this instance that the prosecuting attorney, pri- or to offering the exhibit into evidence, failed to satisfy the conditions of Art. 3720, supra, that would have permitted the admission into evidence of a copy of the original of the \\\"Nunc Pro Tunc Order.\\\"\\nAuthentication of an official record is the act or mode of giving authority or legal authenticity to a court's record, so as to render it legally admissible in evidence. Under the provisions of Art. 3720, supra, the authentication required of a certified copy of a court's record is the signature and seal of its lawful possessor. If the possessor or lawful custodian of the document certifies that the instrument is a true copy of the original on file in his office, then the document is admissible under Art. 3720, supra. Otherwise, such a document is hearsay and inadmissible evidence.\\nWe observe that the involved exhibit does not bear either a clerk's file mark or a seal. Nor does the copy of the exhibit that was admitted into evidence that is in the record of appeal contain a certification by the lawful possessor of the original document. Thus, the provisions of Art. 3720, supra, were not complied with. The exhibit was not admissible pursuant to the provisions of Art. 3720, supra. Compare Hartford Accident and Indemnity Company v. McCardell, 369 S.W.2d 331, 337 (Tex.1963); Phillips v. Houston, 572 S.W.2d 797 (Tex.Civ.App.\\u2014Waco 1978) no writ history, in which it was held that an unattested and uncertified letter from the Industrial Accident Board was not admissible evidence under the provisions of Art. 3731a, Section 4, V.A.T.C.S.\\nTherefore, we hold that State's exhibit number 14a was hearsay and inadmissible evidence.\\nHowever, the trial judge, over objection, took judicial notice of the document. Was this permissible? Without reservation or hesitation, we answer the question with an unequivocal \\\"NO.\\\"\\nThe trial of this cause occurred in the 204th Judicial District Court of Dallas County. The \\\"Nunc Pro Tunc Order\\\" was purportedly signed by Judge Zimmerman, the presiding judge of the Criminal District Court No. 3 of Dallas County.\\nOf course, a trial court may take judicial notice of its own orders, records, and judgments rendered in cases involving the same subject matter and between practically the same parties. 1 Ray, Texas Practice, Sec. 186. However, one trial court generally lacks the power to take judicial notice of the records or documents that might be on file in another trial court. We have not found any exception to the general rule that would have allowed the trial judge in this instance to take judicial notice of whatever Judge Zimmerman, the presiding judge of another and the convicting court, might have done that related to a judgment and sentence that had previously been entered in the trial court over which he then presided.\\nIn this regard, we observe that the Supreme Court of Texas, in Culver v. Pickens, 142 Tex. 87, 176 S.W.2d 167, 171 (1944), held the following: \\\"While it is true that the court will take judicial knowledge of its own records, we know of no such rule which would authorize a district court or a court of civil appeals in passing upon a demurrer in a case like this to take judicial knowledge of the records of a probate court.\\\" Also see Fikes Estate v. King Land and Cattle Corporation, 438 S.W.2d 665 (Tex.Civ.App.\\u2014Ft. Worth 1969) error dismissed (\\\"We cannot take judicial notice of evidentiary matters in our records upon the prior appeals of cases where the records therein were not from the same case.\\\")\\nWe believe that in this instance the action of the trial judge in taking judicial notice of what Judge Zimmerman might have done amounted to injecting into the case his personal knowledge, albeit based upon hearsay, as to what occurred in Judge Zimmermann's court, as well as what Judge Zimmerman purportedly did. \\\"However, it is well settled that the scope of the exercise of the function of judicial notice is not coextensive with the personal knowledge of the individual judge. Personal knowledge is not judicial knowledge. The judge may personally know a fact of which he cannot take judicial notice. Contrariwise, he may be required to notice facts as to which he has no private knowledge If the judge has personal knowledge of a fact not judicially known, the proper way to make use of it is for him to take the stand as a witness and testify to what he knows.\\\" McCormick and Ray, Texas Law of Evidence, 2d Ed., Vol. 1, at 172-173.\\nWe hold that the trial judge erred in taking judicial notice of the \\\"Nunc Pro Tunc Order\\\" purportedly signed by Judge Zimmerman. Also see Hickey v. Hickey, 203 S.W.2d 568 (Tex.Civ.App.\\u2014Eastland 1947) No writ history.\\nWe must now determine what the effect of our holding that State's exhibit number 14A was not properly admitted into evidence will be on this case. We find that such holding renders the judgment of conviction that pertains to the complained of prior conviction void.\\nIt is now axiomatic that the punishment assessed must always be within the minimum and maximum fixed by law. When the punishment assessed is less than the minimum provided by law, this renders the judgment of conviction a nullity. Gonzales v. State, 527 S.W.2d 540 (Tex.Cr.App.1975); Smith v. State, 424 S.W.2d 228 (Tex.Cr.App.1968); Clardy v. State, 415 S.W.2d 423 (Tex.Cr.App.1967); Gassoway v. State, 385 S.W.2d 386 (Tex.Cr.App.1965); Compian v. State, 363 S.W.2d 468 (Tex.Cr.App.1963); Russell v. State, 352 S.W.2d 746 (Tex.Cr.App.1962); Craven v. State, 350 S.W.2d 34 (Tex.Cr.App.1961); Nichols v. State, 344 S.W.2d 694 (Tex.Cr.App.1961); Bradshaw v. State, 331 S.W.2d 52 (Tex.Cr.App.1960).\\nAs we previously pointed out, after appellant was convicted of committing the offense of burglary of a habitation in the alleged prior felony cause which he attacks in this cause, his punishment was assessed by the trial judge at four (4) years' confinement in the penitentiary. This was impermissible because the minimum punishment provided by law was five (5) years' confinement in the penitentiary. The judgment of conviction is void and should not have been used against appellant.\\nIn light of what we have previously stated, we pretermit for another day a discussion of the issue whether Hall v. State, supra, conflicts with Aaron v. State, supra, and, if so, which one should be overruled.\\nFor the above reasons, we agree with the result that the court of appeals reached; that the cause must be reversed and remanded to the trial court for reassessment of punishment. The cause is therefore reversed and remanded for a new punishment hearing only.\\nW.C. DAVIS, J., concurs in result.\\nMILLER, J., dissents.\"}"
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+"{\"id\": \"11594611\", \"name\": \"GENERAL MOTORS ACCEPTANCE CORPORATION/CRENSHAW, DUPREE & MILAM, L.L.P., Appellant, v. CRENSHAW, DUPREE & MILAM, L.L.P./GENERAL MOTORS ACCEPTANCE CORPORATION, Appellee\", \"name_abbreviation\": \"General Motors Acceptance Corp. v. Crenshaw, Dupree & Milam, L.L.P.\", \"decision_date\": \"1998-09-17\", \"docket_number\": \"No. 08-96-00411-CV\", \"first_page\": \"632\", \"last_page\": \"636\", \"citations\": \"986 S.W.2d 632\", \"volume\": \"986\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T19:14:54.598192+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Panel No. 4 BARAJAS, C.J., and LARSEN and McCLURE, JJ.\", \"parties\": \"GENERAL MOTORS ACCEPTANCE CORPORATION/CRENSHAW, DUPREE & MILAM, L.L.P., Appellant, v. CRENSHAW, DUPREE & MILAM, L.L.P./GENERAL MOTORS ACCEPTANCE CORPORATION, Appellee.\", \"head_matter\": \"GENERAL MOTORS ACCEPTANCE CORPORATION/CRENSHAW, DUPREE & MILAM, L.L.P., Appellant, v. CRENSHAW, DUPREE & MILAM, L.L.P./GENERAL MOTORS ACCEPTANCE CORPORATION, Appellee.\\nNo. 08-96-00411-CV.\\nCourt of Appeals of Texas, El Paso.\\nSept. 17, 1998.\\nRehearing Overruled Dec. 2, 1998.\\nCarlos Villa, Villa & Keith, L.L.P., El Paso, Patricia D. Pope, McGinnis, Lochridge & Kilgore, L.L.P., Austin, for Appellant.\\nJohn C. Steinberger, Dudley Dudley Win-dle & Stevens, El Paso, Charles T. Frazier, Cowles & Thompson, P.C., Dallas, for State.\\nBefore Panel No. 4 BARAJAS, C.J., and LARSEN and McCLURE, JJ.\", \"word_count\": \"2416\", \"char_count\": \"14889\", \"text\": \"OPINION\\nBARAJAS, Chief Justice.\\nThis is an appeal from a summary judgment granted in favor of Appellee Crenshaw, Dupree & Milam, L.L.P. (\\\"CD & M\\\"). For the reasons stated below, we reverse the judgment of the trial court.\\nI. SUMMARY OF THE EVIDENCE\\nA. Procedural History\\nThis appeal arises from a fraud and legal malpractice claim against Appellant General Motors Acceptance Corporation (\\\"GMAC\\\") and CD & M. GMAC and CD & M were sued by Gordon Rose, Jean Rose, Robert Rose, Dayonne Rose, Modern Chevrolet, Inc., and Modern Hyundai, Inc., (\\\"the Roses\\\") for numerous common law tort causes of action and violations of the DTP A. On November 10, 1995, the Roses entered into a settlement agreement with Appellant. The trial court dismissed the Roses' claims against Appellant with prejudice on November 23, 1995. On January 9, 1996, the Roses settled their claims with CD & M. The trial court dismissed the Roses' claims against CD & M with prejudice on January 12,1996.\\nOn August 25, 1995, Appellant filed its Original Cross-Claim against CD & M seeking actual damages and indemnification and/or contribution. On December 14, 1995, CD & M filed a Motion for Partial Summary Judgment alleging that Appellant's cross-claim was barred by limitations. On January 26, 1996, CD & M filed its First Amended Counter-Claim against Appellant seeking indemnity and attorney's fees. On February 9, 1996, CD & M filed its Second Motion for Summary Judgment alleging that Appellant's cross-claim was not an independent cause of action, that no privity existed between CD & M and Appellant when it obtained the waiver from the Roses, that Appellant was not entitled to contribution as a matter of law because the Roses' claims had been settled, and that Appellant was not entitled to common law indemnity. Appellant filed its response on March 4,1996. On March 5,1996, Appellant filed its Third Amended Original Cross-Claim seeking actual damages, pre- and post-judgment interest, attorney's fees, and court costs, thereby dropping the language of contribution and indemnity. The parties filed various objections to certain portions of the summary judgment evidence and these motions were set for hearings on January 8, March 13, and August 20, 1996. Appellant filed an Amended Motion for Summary Judgment on September 19, 1996, asserting that CD & M's cross-claim failed to state a claim upon which relief could be granted. CD & M filed its response on September 20, 1996.\\nThe trial court denied the objections to the summary judgment evidence. It then entered Final Judgment on September 20, 1996, in which it denied CD & M's Motion for Partial Summary Judgment on limitations, granted CD & M's Second Motion for Summary Judgment, and granted Appellant's Amended Motion for Summary Judgment, ruling that the parties take nothing against each other.\\nB. Factual History\\nIn the latter part of 1989, the Roses were approached by Appellant with a proposal that they should acquire a Hyundai dealership in Lubbock, Texas, which was then owned by Eddie Horn. Appellant arranged for a meeting between the Roses and Horn and representatives of each of their dealerships. As a result of these meetings, the Roses entered into an Undertaking and Indemnity Agreement with Horn, whereby the Roses' Modern Chevrolet took over the management of the Hyundai dealership. Appellant committed to the Roses that it would make a loan for them to purchase the Hyundai dealership. The purchase of the dealership could not be consummated until the GMAC loan was finalized and loan proceeds disbursed. The Undertaking and Indemnity Agreement, however, made the Roses responsible for all liabilities of the Hyundai dealership from and after March 1, 1990. Appellant was aware of this and also knew that Hyundai would not ship any new cars for the Roses to sell until the Roses had acquired the dealership, and that the acquisition was dependent on the closing of the GMAC loan.\\nIn March of 1990, the Roses completed the loan applications for the Hyundai dealership. Accompanying the loan application was a forecast of operations of a Hyundai dealership which was prepared by Ronnie Bradshaw of GMAC and was presented to the Roses with the intent that they rely upon those projections. Although the Roses were assured that their loan applications would be approved, the March application was never approved and no disbursement was made based upon those applications. In June of 1990, a second loan application was completed, and was again accompanied by a forecast of operations for Hyundai, as well as a forecast of operations for Modern Chevrolet, both of which were prepared by Ronnie Bradshaw. These forecasts were prepared with the intent that they be relied upon and utilized by the Roses.\\nThe loan proceeds were not disbursed until August 31, 1990. At that time, the Roses received $500,000, with' only $88,372 designated for working capital, a figure far less than that previously promised by Appellant and utilized in the forecasts. Appellant never adjusted the financial forecast to reflect the reduction in the working capital portion of the loan and never advised the Roses of the effect of the reduction, which was to reduce the cash flow to the dealership under the projections from a positive figure to a negative figure, thus guaranteeing under Appellant's projections that additional sources of cash would be required to Hyundai over the period covered by the forecast.\\nAt all times pertinent hereto, Appellant was aware of and had full knowledge of the financial condition of the Roses as well as the financial condition of Horn and the Hyundai dealership. Prior to the loan to the Hyundai dealership, the Roses had considerable borrowing power and a considerable net worth. However, Appellant required the Roses to pledge as collateral the assignment of all rents of the Modern Chevrolet dealership and of Horn Hyundai, and also took second and third mortgages on the Modern Chevrolet land and buildings on which it already had a first mortgage. This left the Roses with little borrowing power and gave Appellant far more collateral than it had previously or that it reasonably needed to secure the loan.\\nBetween March and August of 1990, the Roses received only $50,000 in working capital loans from Appellant to operate the Hyundai dealership. That amount was insufficient and the Roses were forced to divert personal funds, as well as funds of Modern Chevrolet, to the Hyundai dealership to keep it operating. The Roses diverted those funds because of their continued reliance on Appellant's representations that a loan disbursement, including additional funds, would be forthcoming.\\nWhen the time came to close the loan on the Hyundai dealership in August of 1990, the Roses were faced with the proposition of either trusting Appellant's promises and projections and attempting to make the Hyundai dealership a successful one, or refusing to close the loan, and losing all of the funds they had already diverted to the Hyundai dealership. They chose to rely upon what they later learned were the wrongful and misleading representations of Appellant. The drain of funds by the Hyundai dealership from Modern Chevrolet ultimately proved to be fatal for both dealerships. Had the Roses not been forced to divert funds and had they not granted additional collateral to Appellant, Modern Chevrolet could have been salvaged. Instead, Modern Chevrolet was sold at a loss and both Modern Chevrolet and the Roses were forced into bankruptcy-\\nAt all times pertinent hereto, the Roses were represented by Appellee, CD & M. The firm also represented Appellant. Thus, at the closing of the loan, CD & M was representing persons with conflicting interests. CD & M obtained a Waiver of a Conflict of Interest signed by the Roses. However, the Roses contended that the waiver was ineffective because it was never explained to them, they were never given the opportunity to obtain other counsel, and CD & M never explained to the Roses how the judgment of CD & M might be adversely affected by their representation of Appellant. The Roses contended that CD & M breached its duty of loyalty when it concurrently represented Appellant, despite the clear conflict of interest. The Roses also argued that CD & M, who had represented them for over thirty years, breached its duties of honesty and fidelity.\\nII. DISCUSSION\\nAppellant brings eight points of error attacking the granting of summary judgment. We begin with a discussion of the traditional standard of review.\\nA. Standard of Review\\nThe standard of review on appeal is whether the successful movant at the trial level canned its burden of showing that there is no genuine issue of material fact and that a judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Cortez v. Liberty Mut. Fire Ins. Co., 885 S.W.2d 466, 469 (Tex.App.\\u2014El Paso 1994, writ denied). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant's cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant's cause or claim. Gibbs v. General Motors, 450 S.W.2d 827, 828 (Tex.1970).\\nIn resolving the issue of whether the movant has carried this burden, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant's favor. Nixon, 690 S.W.2d at 548-49; DeLuna v. Guynes Printing Co., 884 S.W.2d 206, 208 (Tex.App.\\u2014El Paso 1994, writ denied). Where the defendants are the movants and they submit summary evidence disproving at least one essential element of each of plaintiffs causes of action, then summary judgment should be granted. Perez, 819 S.W.2d at 471; Bradley v. Quality Serv. Tank Lines, 659 S.W.2d 33, 34 (Tex.1983); Cortez, 885 S.W.2d at 469. When, as here, both parties move for summary judgment, each party must carry their own burden as movant, and we consider all of the summary judgment proof accompanying both motions. See City of Houston v. McDonald, 946 S.W.2d 419, 420 (Tex.App.\\u2014Houston [14th Dist.] 1997, writ denied) (citing International Ass'n of Fire Fighters v. City of Baytown, 837 S.W.2d 783, 786 (Tex.App.\\u2014Houston [1st Dist.] 1992, writ denied); Dae Won Choe v. Chancellor, Inc., 823 S.W.2d 740, 742 (Tex.App.\\u2014Dallas 1992, no writ)). On appeal, all reasonable inferences will be indulged, and all doubts will be resolved in favor of the losing party. University of Tex. Health Science Ctr. v. Big Train Carpet, Inc., 739 S.W.2d 792, 792 (Tex.1987).\\nB. Legal Duty\\nIn Point of Error No. One, Appellant urges that the trial court erred by granting Appellee's Motion for Summary Judgment. In Point of Error No. Two, Appellant argues that the granting of the Motion for Summary Judgment was error because Appellee had a legal duty to follow the instructions of Appellant.\\nIn an action for legal malpractice, the plaintiff must prove a duty owed to him by the defendant, a breach of that duty, injury proximately caused by the breach, and damages. Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex.1995). The existence of a legal duty is a question of law for the court to decide from the facts surrounding the occurrence. See City of McAllen v. De La Garza, 898 S.W.2d 809, 810 (Tex.1995); Greater Houston Tramp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). Furthermore, we review determinations of legal questions on a de novo basis. In re Humphreys, 880 S.W.2d 402, 404 (Tex.1994); Texas Dep't of Pub. Safety v. Valdez, 956 S.W.2d 767, 769 (Tex.App.\\u2014San Antonio 1997, no pet.).\\nAn attorney may be liable for negligence in several situations, among those, in giving an erroneous opinion or advice, in failing to give advice or opinion when legally obligated to do so, in disobeying a client's lawful instructions, in taking action when instructed not to do so, in delaying or failing to handle matters when entrusted to do so, or in failing to use ordinary care in litigation. Zidell v. Bird, 692 S.W.2d 550, 553 (Tex.App.\\u2014Austin 1985, no writ). The issue here is whether CD & M was legally obligated to obtain a valid conflicts waiver from the Roses.\\nIt is well-established that an attorney-client relationship is an agent-principal relationship. Gavenda v. Strata Energy, Inc., 705 S.W.2d 690, 693 (Tex.1986). Inherent in any agency relationship is the fiduciary duty an agent owes to his or her principal. Maryland Ins. Co. v. Head Indus. Coatings and Servs., Inc., 906 S.W.2d 218, 233 (Tex.App.\\u2014Texarkana 1995), rev'd on other grounds, 938 S.W.2d 27 (Tex.1996); Republic Bankers Life Ins. Co. v. Wood, 792 S.W.2d 768, 778 (Tex.App.\\u2014Fort Worth 1990, writ denied). These duties include a duty of good faith and fair dealing. Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565, 160 S.W.2d 509, 512 (Tex.1942). The fiduciary relationship exists between attorneys and clients as a matter of law. See Cooper v. Lee, 75 Tex. 114, 12 S.W. 483, 486 (1889). Furthermore, an agent must obey the lawful directions of its principal. Albright v. Lay, 474 S.W.2d 287, 291 (Tex.Civ.App.\\u2014Corpus Chiisti 1971, no writ); Restatement (Second) of Agency \\u00a7 385 (1957).\\nIt is undisputed that CD & M represented Appellant, thus an agent-principal relationship existed. The record before this Court demonstrates that Appellant instructed its attorneys at CD & M to obtain a waiver from the Roses. In doing so, Appellant anticipated the conflicts waiver would be a valid and enforceable one, thus protecting it from any lawsuits resulting from the dual representation. By failing to obtain a valid waiver, CD & M failed to follow the lawful instructions of its principal and thereby exposed Appellant to liability. Appellant's Points of Error Nos. One and Two are sustained.\\nHaving sustained Appellant's Points of Error Nos. One and Two, we find it unnecessary to address any remaining points of error. We reverse and remand the cause to the trial court.\\n. CD & M erroneously labeled its cross-claim as a \\\"counterclaim.\\\" For the purpose of this opinion, we will label it correctly, as a cross-claim.\"}"
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+"{\"id\": \"12374125\", \"name\": \"COUNTY INVESTMENT, LP, Appellant v. ROYAL WEST INVESTMENT, LLC, Series E and Shawn Shahbazi, Appellees\", \"name_abbreviation\": \"County Investment, LP v. Royal West Investment, LLC\", \"decision_date\": \"2016-12-15\", \"docket_number\": \"NO. 14-15-00207-CV\", \"first_page\": \"575\", \"last_page\": \"582\", \"citations\": \"513 S.W.3d 575\", \"volume\": \"513\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T23:47:12.144292+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel consists of Justices Jamison, Donovan, and Brown.\", \"parties\": \"COUNTY INVESTMENT, LP, Appellant v. ROYAL WEST INVESTMENT, LLC, Series E and Shawn Shahbazi, Appellees\", \"head_matter\": \"COUNTY INVESTMENT, LP, Appellant v. ROYAL WEST INVESTMENT, LLC, Series E and Shawn Shahbazi, Appellees\\nNO. 14-15-00207-CV\\nCourt of Appeals of Texas, Houston (14th Dist.).\\nOpinion filed December 15, 2016.\\nJeremy Daniel Saenz, Houston, TX, for Appellant.\\nRobert G. Miller, Houston, TX, for Ap-pellees.\\nPanel consists of Justices Jamison, Donovan, and Brown.\", \"word_count\": \"3429\", \"char_count\": \"21213\", \"text\": \"OPINION\\nJohn Donovan Justice\\nAppellant, County Investment, LP (\\\"County Investment\\\"), sued appellees, Royal West Investment, LLC (\\\"Royal West\\\") and Shawn Shahbazi for damages, alleging they unlawfully placed a lis pen-dens on real property owned by County Investment. The trial court granted appel-lees' motion for summary judgment on the ground that County Investment's claims are barred by the defense of absolute privilege. We affirm.\\nI. Background\\nNon-party Massood Danesh Pajooh (\\\"Pajooh\\\"), a commercial real estate developer, is a principal owner or member of several entities through which he conducts business, including another non-party, U.S. Capital Investments, LLC (\\\"USCI\\\"), and appellant County Investment. See U.S. Capital Invs., LLC v. Shahbazi, No. 02-12-00417-CV, 2014 WL 1713464, at *1 (Tex. App.-Fort Worth May 1, 2014, no pet.) (mem. op.). Appellee Shahbazi is also a commercial real estate investor and is a principal owner or member of several entities through which he conducts business, including appellee Royal West. See id.\\nIn 2010, USCI and Pajooh became involved in litigation with appellees in a Tar-rant County district court. See id. at *l-2. That suit arose out of several real estate transactions between those parties, and they asserted various claims against each other. See id. The jury's verdict and post-trial rulings resulted in Royal West being the prevailing party. See id. at *2. In July 2012, the Tarrant County district court signed a final judgment awarding Royal West $352,380 and attorney's fees of $165,000 (plus conditional appellate attorney's fees) against USCI and Pajooh, jointly and severally. See id. at *3. The Fort Worth Court of Appeals affirmed the judgment. See id. at *11.\\nUpon the district court signing the judgment, Royal West sought immediate execution. The request was supported by an affidavit of Royal West's attorney averring that he believed Pajooh would conceal assets, manipulate assets to file bankruptcy on behalf of USCI, or place assets beyond the jurisdiction of the court because he has a history of conducting fraudulent transactions to avoid creditors and is an Iranian citizen with family and business contacts in Iran. On the same day that it signed the judgment, the Tarrant County district court signed an order permitting immediate execution.\\nAccording to Shahbazi, when he/Royal West served post-judgment discovery, Pa-jooh boasted that he would prevent Shah-bazi from locating assets to satisfy the judgment. Then, in January 2013, appel-lees filed a \\\"Notice of Lis Pendens\\\" in Harris County relative to certain real property in Houston owned by County Investment and referenced the Tarrant County suit. The lis pendens was ultimately released in April 2014.\\nIn the present suit, filed in June 2014, County Investment alleges the following: (1) in early April 2013, it entered into an agreement to sell the property at issue for $956,000; (2) a commitment for title insurance was made subject to dismissal of the Tarrant County suit and release of the lis pendens; (3) appellant contacted Shahbazi who said he instructed his attorney to release the lis pendens, but it was not released at the time; and (4) in June 2013, the proposed buyer cancelled the purchase because of the lis pendens. County Investment seeks actual and punitive damages for appellees' alleged violation of Texas Civil Practice and Remedies Code Chapter 12 by filing a fraudulent lien, see Tex. Civ. Prac. & Rem Code Ann. \\u00a7 12.002(a), (b), 12.003(a)(8) (West Supp. 2016), tortious interference with contract, and slander of title. The crux of the claims is that the lis pendens was unlawful because County Investment was not a party to the Tarrant County suit and the lis pendens caused County Investment to lose the $956,000 it would have realized from the sale of the property.\\nAppellees filed a traditional motion for summary judgment, contending all claims are barred by the defense of absolute privilege, to which County Investment filed a response. The trial court signed an order granting summary judgment and ordering that County Investment take nothing. County Investment filed a motion to reconsider and motion for new trial, which was overruled by operation of law.\\nII. The Summary Judgment\\nA party moving for traditional summary judgment must establish there is no genuine issue of material fact and it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). A defendant moving for traditional summary judgment must negate at least one element of each of the plaintiffs theories of recovery or plead and conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). If the motion and summary-judgment evidence facially establish the movant's right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine issue of material fact sufficient to defeat summary judgment. See Arguelles v. Kellogg Brown & Root, Inc., 222 S.W.3d 714, 723 (Tex. App.-Houston [14th Dist.] 2007, no pet.). We review a summary judgment de novo. Provident Life, 128 S.W.3d at 215. We take all evidence favorable to the nonmovant as true and indulge every reasonable inference and resolve any doubts in its favor. Id.\\nA. Law on Lis Pendens and the Absolute Privilege Defense\\n\\\"Lis pendens provides a mechanism for putting the public on notice of certain categories of litigation involving real property.\\\" Prappas v. Meyerland Cmty. Improvement Ass'n, 795 S.W.2d 794, 795 (Tex. App.-Houston [14th Dist.] 1990, writ denied). \\\"A lis pendens is a notice of litigation, placed in the real property records, asserting an interest in the property, and notifying third parties that ownership of the property is disputed.\\\" In re Miller, 433 S.W.3d 82, 84 (Tex. App.Houston [1st Dist.] 2014, orig. proceeding). Texas Property Code section 12.007, governing the filing of a lis pendens, provides, in pertinent part:\\n(a) After the plaintiffs statement in an eminent domain proceeding is filed or during the pendency of an action involving title to real property, the establishment of an interest in real property, or the enforcement of an encumbrance against real property, a party to the action who is seeking affirmative relief may file for record with the county clerk of each county where a part of the property is located a notice that the action is pending.\\nTex. Prop. Code Ann. \\u00a7 12.007(a) (West 2014). Section 12.007 also prescribes requirements for the contents of the notice, recording of the notice by the clerk, and service on others. See id. \\u00a7 12.007(b)-(d) (West 2014).\\nCounty Investment seeks damages on the basis that appellees were not authorized to place a lis pendens on the property. In the motion for summary judgment, ap-pellees relied on Prappas, in which our court set forth the defense of absolute privilege to an action seeking damages for the alleged wrongful filing of a lis pendens. See 795 S.W.2d at 795-800.\\nIn Prappas, a community association had brought a separate declaratory judgment action against several homeowners seeking to preclude them from selling their homes, after heavy flooding, for nonresidential use. See id. at 795. The association did not prevail in the trial court or on appeal. See id. However, after the trial court's judgment, but right before the sale was to close, the association filed a notice of lis pendens which remained on file until the association's appeals were exhausted. See id. The lis pendens caused the buyer to cancel the purchase. See id. The homeowners filed the Prappas suit against the association for slander of title and tortious interference with contract, alleging the lis pendens was wrongful as unauthorized by statute and seeking damages. See id. The trial court rendered summary judgment in favor of the association. See id.\\nWhen affirming, we held that there is an absolute privilege defense against a suit seeking damages for placing a lis pendens even when the plaintiff alleges the lis pen-dens was wrongful as falling outside the circumstances for which a lis pendens may be filed under section 12.007(a). See id. at 795-800. We relied on two cases from sister courts and' the principles cited therein for recognizing the privilege: (1) a lis pen-dens is part of a judicial proceeding, as it has no existence separate from the litigation of which it gives notice, and communications, oral or written, in the course of a judicial proceeding are privileged; and (2) the open courts guarantee of the Texas Constitution ensures litigants access to the courts without fear of defamation actions. See id. at 796-97 (citing Kropp v. Prather, 526 S.W.2d 283, 286-87 (Tex. Civ. App.Tyler 1975, writ ref's n.r.e.); Griffin v. Rowden, 702 S.W.2d 692 (Tex. App.-Dallas 1985, writ ref'd n.r.e.)).\\nWe further stated that there are remedies for nullifying an unauthorized lis pen-dens, including a statutory method for cancellation, or other request for an appropriate order from the trial court, with mandamus relief available if the trial court refuses to order cancellation. See id. at 795-96, 798 (citing Tex. Prop. Code \\u00a7 12.008; Olbrich v. Touchy, 780 S.W.2d 6 (Tex. App.-Houston [14th Dist.] 1989, orig. proceeding); Moss v. Tennant, 722 S.W.2d 762 (Tex. App.-Houston [14th Dist.] 1986, orig. proceeding); Helmsley-Spear of Tex., Inc. v. Blanton, 699 S.W.2d 643 (Tex. App.-Houston [14th Dist.] 1985, orig. proceeding)). In fact, we noted that \\\"impossibility\\\" of recovering damages is why courts have given a broad reading to the statute governing cancellation. See id. at 798; see also Manders v. Manders, 897 P.Supp, 972, 976-78 (S.D. Tex. 1995) (citing Prappas when holding that plaintiffs' claims for damages for tortious interference and slander of title based on filing a lis pendens were barred by absolute privilege defense under Texas law); Bayou Terrace Inv. Corp. v. Lyles, 881 S.W.2d 810, 818 (Tex. App.-Houston [1st Dist.] 1994, no writ) (citing Prappas when stating that absolute privilege defense bars suit for damages arising from filing a lis pendens).\\nB. Analysis\\nIn two issues, County Investment proffers several reasons that Prappas does not apply in the present case and County Investment's claims are not barred by the privilege defense.\\nCounty Investment emphasizes that unlike in Prappas, in which the property owners were parties to the litigation in which the lis pendens was placed, County Investment was not a party to the judicial proceeding referenced in appellees' notice of lis pendens and the property at issue was not involved in the judicial proceeding. Thus, County Investment suggests the lis pendens affects \\\"collateral\\\" real property unrelated to any judicial proceeding and is void ab initio. County Investment cites uncontroverted summary-judgment evidence that it was not a party to the Tar-rant County suit and the property has never been owned by the parties to that suit. Therefore, County Investment maintains that appellees acted contrary to Property Code section 12.007(a) by filing the lis pendens.\\nWe note that appellees assert the lis pendens was placed on the property of County Investment in order to satisfy Royal West's Tarrant County judgment against Pajooh, a member or owner of County Investment, and USCI, of which Pajooh is also a member or owner. Regardless, assuming without deciding that such connection is insufficient to support filing of a lis pendens under section 12.007(a), the essence of County Investment's claim is that the lis pendens is not authorized under the statute. We made clear in Prappas that such a claim is barred under the absolute privilege doctrine. See 795 S.W.2d at 795-800. The issue of whether one may place a lis pendens against property owned by a non-party to a suit to enforce a judgment against a party to the suit concerns the merits of the lis pendens and does not negate application of the absolute privilege defense to a claim for damages even if the lis pendens was improper.\\nCounty Investment cites three cases to support its contention. In each case, our court held that a lis pendens was not authorized under section 12.007(a) because the property at issue was only collaterally related to the judicial claims of the party filing the lis pendens. See Olbrich, 780 S.W.2d at 7-8; Moss, 722 S.W.2d at 763; Helmsley-Spear, 699 S.W.2d at 645. However, those cases were not actions for damages for the improper filing of the lis pendens, and thus we did not address whether there was a privilege against such a suit; rather, the eases involved a request in the trial court to cancel the lis pendens and a mandamus proceeding in our court after the trial court denied the request. See Olbrich, 780 S.W.2d 6 -8; Moss, 722 S.W.2d at 762-64; Helmsley-Spear, 699 S.W.2d at 644-45. Consequently, none of these cases negate application of the absolute privilege defense to a claim for damages for placing an unauthorized lis pen-dens. In fact, the cases support appellees' position by confirming that a property owner may seek cancellation of an improper lis pendens followed by mandamus relief if a trial court refuses the request for cancellation.\\nIn this regard, County Investment contends the privilege should not apply because County Investment did not have adequate avenues for obtaining cancellation of the lis pendens under Property Code sections 12.0071 or 12.008. As County Investment asserts, section 12.0071, prescribing circumstances under which a \\\"party to an action in connection with which a notice of lis pendens has been filed,\\\" may obtain expunction of the lis pendens, see Tex. Prop. Code Ann. \\u00a7 12.0071 (West 2014), requires twenty days' notice of the hearing on the motion to expunge. See id. \\u00a7 12.0071(d). County Investment also asserts that section 12.008, governing circumstances under which \\\"a party or other person interested in the result of or in property affected by a proceeding in which a lis pendens has been filed\\\" may obtain cancellation of the lis pendens, implies that the lis pendens is valid by requiring the court to protect the party seeking affirmative relief in the suit; the court must require the movant to deposit money into the court or require the \\\"giving of an undertaking\\\" to ensure payment of the judgment. See id. \\u00a7 12.008 (West 2014). County Investment suggests it lacked adequate time or resources to pursue the above-cited remedies before the lis pendens prevented County Investment's intended sale of the property, particularly because Shah-bazi kept fraudulently representing he would have the lis pendens removed.\\nEven if we construe the above-cited provisions as urged by County Investment, it expressly acknowledges that they are not the exclusive methods for obtaining cancellation of a lis pendens. In Prappas, we stated that section 12.008 is not the exclusive remedy for nullifying an unauthorized lis pendens and an affected party may seek another appropriate order from a district court, under the rationale that when the notice fails to comply with the Property Code, the remedy for removal should not be limited to that provided by the statute. See 795 S.W.2d at 796, 798 (citing Olbrich, 780 S.W.2d 6; Moss, 722 S.W.2d 762; Helmsley-Spear, 699 S.W.2d at 643; Lane v. Fritz, 404 S.W.2d 110 (Tex. Civ. App.Corpus Christi 1966, no writ); Hughes v. Houston NW Med. Ctr., 647 S.W.2d 5, 7 (Tex. App.-Houston [1st Dist.] 1982, writ dism'd)).\\nWe note that section 12.0071 was not yet enacted when we decided Prcuppas. However, we see no reason that subsequent enactment of a method for obtaining ex-punction would negate the Prappas court's recognition that statutory methods for nullifying a lis pendens are not exclusive\\u2014 particularly considering that section 12.0071 is available only to a \\\"party to an action in connection with which a notice of lis pendens has been filed,\\\" whereas section 12.008 is more broadly available to \\\"a party or other person interested in the result of or in property affected by a proceeding in which a lis pendens has been filed,\\\" and even the latter is not exclusive. Compare Tex. Prop. Code Ann. \\u00a7 12.0071 with 12.008; see Prappas, 795 S.W.2d at 796, 798.\\nAnd, as appellees assert, the Government Code provides a method whereby a person who owns or has an interest in real property and believes a filed document purporting to place a lien or claim against the property is fraudulent may file a motion and obtain, even ex parte, a judicial declaration that the lien is not valid. See Tex. Gov't Code Ann. \\u00a7 51.903 (West 2013). County Investment presents no reason it could not have sought cancellation as authorized generally or under section 51.903. Nevertheless, in Prappas, we made no exception to the privilege- against a suit for damages for an unauthorized lis pen-dens based on the length of time it might take to nullify the lis pendens, the timing for nullification when compared to a potential sale of the property, or whether the party placing the lis pendens had promised its removal. See 795 S.W.2d at 795-800.\\nNext, County Investment maintains that the privilege does not apply because the lis pendens was a fraudulent court record as forbidden by the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. \\u00a7 12.002(a). County Investment cites an affidavit it presented, reflecting a lis pendens was filed against multiple properties associated with. [Pajooh] \\\"to make life miserable for [Pajooh] and for all those associated who are joint venture and partners of [County Investment].\\\" We acknowledge that Prappas involved only two of the same claims asserted in the present case\\u2014slander of title and tortious interference\\u2014and the court did not address any fraudulent-lien claim. See 795 S.W.2d at 795-800. Regardless, we conclude Prappas is also applicable to County Investment's fraudulent-lien claim. The Prappas court's reasoning for recognizing the privilege was not limited to the claims asserted in the suit or contingent on the motives of the party placing the lis pendens. See generally id. Significantly, we stated that availability of the privilege does not turn on whether the party placing the lis pendens acted in good faith and even malice would not dissolve the privilege. See id. at 799.\\nCounty Investment further cites a case in which a court of appeals upheld a jury's finding of no damages on a claim for purportedly filing a fraudulent lis pendens. See Duke v. Power Elec. & Hardware Co., 674 S.W.2d 400, 405 (Tex. App.-Corpus Christi 1984, no writ). According to County Investment, that case shows that County Investment's fraudulent-lien claim should be submitted to a jury. But, that case does not negate applicability of the privilege defense because there, is no indication that defendant raised the defense and the case was decided before the Prappas court recognized the defense. See id.\\nFinally, County Investment argues that permitting the absolute privilege defense even when the party owning the property at issue or the property itself are not part of a judicial proceeding will have a \\\"deleterious effect\\\"\\u2014any party could maliciously file a lis pendens without consequences and use the lis pendens as \\\"a sword.\\\" We reject this argument for the same reasons we have rejected County Investment's fraudulent-lien contention\\u2014application of the privilege defense does not depend on the motives of the party filing the lis pen-dens. See Prappas, 795 S.W.2d at 799.\\nIn summary, because we are bound by the precedent of Prappas, dictating that County Investment's claims for damages are barred by the defense of absolute privilege, we conclude the trial court did not err by granting summary judgment on all of the claims. We overrule both of County Investment's issues.\\nWe affirm the trial court's judgment.\\n. We recite the facts regarding the Tarrant County suit based on the appellate court opin ion in that case and uncontroverted summary-judgment evidence in the present case.\\n. The parties present conflicting summary-judgment evidence regarding events between the filing of the lis pendens and the filing of the present suit and the opposing party's motives, which evidence is not germane to' our disposition. But, in essence, according to County Investment's evidence, Pajooh informed Shahbazi that the lis pendens was an improper attempt to force a settlement of the Tarrant County suit and demanded the lis pendens be released. Shahbazi avers that (1) shortly after the court of appeals affirmed the Tarrant County judgment (May 2014), Pajooh began proposing settlement options that would result in release of the judgment, which Pajooh needed to consummate another transaction, and (2) when Shahbazi declined a \\\"meager\\\" monetary offer, Pajooh immediately had appellees served with the present suit.\"}"
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+"{\"id\": \"1977609\", \"name\": \"W. H. Thomas, Administrator, v. John R. Hawpe et al.\", \"name_abbreviation\": \"Thomas v. Hawpe\", \"decision_date\": \"1904-03-26\", \"docket_number\": \"\", \"first_page\": \"311\", \"last_page\": \"318\", \"citations\": \"35 Tex. Civ. App. 311\", \"volume\": \"35\", \"reporter\": \"Texas Civil Appeals Reports\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:34:08.843755+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"W. H. Thomas, Administrator, v. John R. Hawpe et al.\", \"head_matter\": \"W. H. Thomas, Administrator, v. John R. Hawpe et al.\\nDecided March 26, 1904.\\n1.\\u2014Administration\\u2014Final Account.\\nAn administrator\\u2019s account showed a balance in his hands of $304.81, and stated \\u201cthere is unpaid audited amounts due to parties who have not applied for their pro rata aggregating $269.15, leaving a balance to pay costs of final settlement and clerk\\u2019s costs, etc., $35.36.\\u201d In his affidavit thereto the administrator stated that \\u201cthe within and foregoing is a true and correct exhibit of said estate so far as the same has come to his hand or knowledge.\\u201d It did not state, other than as above, what the indebtedness of the estate amounted to, nor set out the names and residences of the creditors entitled to the $269.15, nor ask that the administrator be discharged. It was indorsed on the back \\u201cPinal account,\\u201d and notice was given as in case of filing a final account. The order of the court thereon mentioned it as a final account, but merely approved it and ordered it of record, the form of order required by the statute (Rev. Stats., art. 1876) in approving an annual exhibit. No order was made discharging the administrator. Held not a final account such as would be res adjudicata against the claim of the heirs for a restatement of the account made when the administrator asked for an order of final discharge twenty-two years later.\\n2\\u2014Same\\u2014Matters Not Included in Account.\\nEven if the account was final so as to bar further inquiry into the matters set out and specified therein, it would not be final as to property accidentally or fraudulently omitted therefrom.\\n3. \\u2014Same\\u2014Limitations and Stale Demand Not Applicable.\\nThe action of the administrator in filing a supplemental account twenty-two years later and asking a final discharge recognized the administration as still pending, but, aside from this, the statute provides that \\u201cwhere letters testamentary or of administration shall have once been granted, any person interested in the administration may proceed, after any lapse of time, to compel a settlement of the estate when it does not appear from the record that the administration has been closed.\\u201d Rev. Stats., art. 1882.\\n4. \\u2014Same\\u2014Annual Accounts Not Final.\\nIn a contest in the probate court between the heirs and the administrator the approval by that court of the annual exhibits of the administrator showing the collection and disbursement of funds does not have the force of a judgment so as to preclude from contesting the same, and especially is this true when the heirs charge him with fraud.\\n5. \\u2014Same\\u2014Costs.\\nWhile the probate court has the power to adjudge the costs in probate proceedings (Rev. Stats., art. 2251), the district court has not the power, in such a cause brought to it for trial de nova, to adjudge the costs which might further accrue in the appellate courts in anticipation of an appeal from its judgment.\\n6. \\u2014Same\\u2014Order Adjudging Costs Held Final.\\nWhere the county probate court, upon reinstating an administration case, adjudged the costs accruing prior to its dismissal against the contestants, such order became final at the end of the term, and, no specific complaint being made of it, it was not annulled by an appeal taken by the administrator to the district court.\\n7. \\u2014Same\\u2014Creditors\\u2014Abandonment of Claims\\u2014Laches.\\nWhere creditors of an insolvent estate, after notice given by the administrator, have failed to assert their claims for over twenty-five years, it will be conclusively presumed, in a settlement between the heirs and the administrator, that such creditors have abandoned their claims by reason of their laches.\\n8. \\u2014Same\\u2014Charging Administrator with Interest.\\nWhere an administrator appears to have applied funds of the estate to his own use, lending them out at good rates, he was properly charged on final settlement with the heirs with interest at the highest legal rate.\\n9. \\u2014Same\\u2014Commissions\\u2014Fraud.\\nWhere the court found that an administrator had wrongfully and knowingly failed to account for certain moneys of the estate, it properly held that he was not entitled to commissions thereon.\\nAppeal from the District Court of Dallas. Tried below before Hon. Richard Morgan.\\nR. D. Coughanour and Henry & Henry, for appellant.\\nWm. P. Martin and Wm. P. Ellison, for appellees.\", \"word_count\": \"4088\", \"char_count\": \"23579\", \"text\": \"BOOKHOUT, Associate Justice.\\nOn the 14th day of August, 1863, T. C. Hawpe departed this life intestate, in Dallas County, leaving an estate consisting of both real and personal property, situated principally in said county. E. A. Hawpe was his surviving widow.\\nOn the 28th day of September, 1863, letters of administration on the estate of said decedent were granted to Mrs. E. A. Hawpe, survivor, and W. H. Thomas, now appellant herein. They qualified in terms of the law, and on the 29th day of September, 1863, filed their inventory of the property of said estate, which said inventory was on the day following approved by the court. On the 27th day of October, 1863, E. A. Hawpe and W. H. Thomas, as coadministrators of said estate, filed their final account, and on the same day the said W. H. Thomas moved the court that said account be taken as his final account, and that he be discharged, which was accordingly done by an order of the court made on the 30th day of November, 1863, and in the same order and by the terms thereof, Mrs. E. A. Hawpe, as administratrix of said estate of T. C. Hawpe, was required to come forward and give a new bond as such administratrix, which she did and proceeded with the administration. On the 26th day of June, 1866, Mrs. E. A. Hawpe, administratrix, having filed her final account and petition to the court to be discharged from further responsibility on account of said administration, prayed the court to appoint the said W. H. Thomas administrator d\\u00e9 bonis non to said succession, all of which was accordingly done. On the 26th day of June, 1866, said W. H. Thomas, administrator, filed his inventory and appraisement of said estate, which was approved by the court on said day. The said W. H. Thomas then proceeded to administer said estate, filing annual exhibits thereof for the years 1867, 1869, 1872, and on the 6th day of September, 1877, he filed his account, styled \\\"Final account,\\\" which said final account was, after due and legal notice thereof, approved by the court on the 20th day of October, 1877, but no order was made discharging said administrator. Said final account of said administrator shows that said estate was insolvent, and that said administrator, in obedience to an order of the district court sitting in probate, made upon and in approval of the report of E. G. Bower, auditor, filed February 1, 1873, paid the sum of 25 cents on each dollar of the indebtedness of said estate, and that there remained in his hands the sum of $269.15, the pro rata of 25 cents on the dollar due on established claims belonging to creditors of said estate who had not called for their money, and that there remained in his hands a further sum of $35.36, with which to pay cost of final settlement, clerk's cost, etc. On September 25, 1899, J. E. Hawpe, W. L. Hawpe, G-. T. Hawpe, Mrs. Elizabeth McPherson, joined pro forma with her husband, J. M. McPherson; Mrs. Matilda Thompson, joined pro forma with her husband, Dallas Thompson, and G. T. Hale as next friend of Herman Hale, appellees herein, claiming to be the heirs at law of the said T. 0. Hawpe, deceased, filed a paper in the county court on the probate side of the docket, styled and indorsed \\\"Plaintiffs' original petition,\\\" in which they charge that W. H. Thomas, now appellant herein, as administrator of the estate of decedent, held in his possession the sum of $269.15 belonging to said estate that should be paid over to them with legal interest thereon from the 6th day of September, 1877, the date of the filing of his said final account, and they pray the court to make an order requiring him to pay over to them said sum of money arid interest, together with the cost of their said application. On the 1st day of November, 1899, appellant filed a supplemental account referring to his said final account filed September 6, 1877, and approved October 20, 1877, but made no change therein; he does, however, show in said supplemental account that since the filing and approval of said final account he had made pro rata payment of 25 cents on the dollar of five of the established claims mentioned and approved therein, amounting to $177.75, thus leaving $91.40 to be paid on established claims included in said final account, and $35.36 for payment of the probable cost of final settlement.\\nOn this last account citation was issued by the clerk as required by law in cases where final accounts are filed, citing all parties interested in the estate to appear and show cause why the administrator should not be discharged. On November 27, 1899, the contestants filed a pleading styled \\\"Contestants' petition,\\\" which by its terms purports to be an answer to the account filed by the administrator on the 1st day of November, 1899, and for the first time specifically demands a restatement of the administrator's said final and of his previous accounts and contests the right of the administrator to be discharged.\\nThe case first came up for hearing in the probate court upon appellant's demurrers, filed May 18, 1900, to contestants' (appellees') second amended answer. Said demurrers were overruled, and appellant appealed from said ruling to the district court, where he was again overruled, and on appeal to the Court of Civil Appeals the case was dismissed for want of jurisdiction, the court holding that the order sought to be appealed from was not a final order. On May 18, 1901, A. B. Flanary was appointed auditor, and on November 1, 1901, filed his report, which was excepted to by all parties. On July 29, 1902, the case was dismissed for want of prosecution, at contestants' cost. On August 2, 1902, said cause was reinstated, and contestants were charged with all costs to said date.\\nOn October 4, 1902, the case was tried in the county court sitting for probate, etc.,, upon contestants' third amended demurrers and pleas, filed February 24, 1902, and contestants' and the administrator's ex ceptions to -the auditor's report, and resulted in a judgment for contestants against W. H. Thomas in the sum of $31,385.87, from which judgment the said W. H. Thomas appealed to the district court.\\nOn April 3, 1903, the case came up on appeal to the district court, and was tried de nova, on the same pleadings as in the county court; a jury was waived, and the matters of fact as well as of law were submitted to the court, and resulted in an order overruling the administrator's demurrers, and in a restatement of the administrator's account, and judgment for $16,340.31 in favor of contestants and for costs. To all of which rulings and judgment of the court the administrator excepted and perfected his appeal to this court.\\nOpinion.\\u2014The first assignment challenges the correctness of the action of the trial court in overruling the administrator's general demurrer to the pleadings of the contestants. It is contended by appellant that the order of the county court of October 30, 1877, approving his account of September 6, 1877, and ordering the same of record is res adjudicata, and can not again be inquired into in this proceeding. The correctness of this contention depends upon whether or not said account was in fact a final account, and whether or not it was so considered and adjudicated by the court when the order was made approving the same and ordering it of record. This account is styled on the back thereof \\\"Final account.\\\" It shows a balance in the hands of the administrator of $304.51, and states \\\"there are unpaid audited amounts due to parties who have not applied for their pro rata aggregating $369.15, leaving a balance to pay costs of final settlement and clerk's cost, etc., $35.36.\\\" In his affidavit to said account the administrator states that \\\"the within and foregoing is a true and correct exhibit of the said estate so far as the same has come to his hand or knowledge.\\\" It does not state what the indebtedness of the estate amounts to. The only direct mention of any existing indebtedness is contained in the recitation above set out. It does not state the names of the creditors and their residences, entitled to the $369.15, and \\\"who have failed to apply for their pro rata.\\\" In this respect it fails to set out the names of the persons entitled to receive such portions of the estate. This account does not ask that the administrator be discharged. \\u00a1Notice was given as is required in cases of filing a final account. The order made by the court reads: \\\"\\u00a1Now comes W. H. Thomas, administrator, and presents to the court his final account duly verified under oath showing the condition of said estate (the balance due said \\u2014 being $-), and it appearing to the court that due and legal notice of the filing same has been given and no objection thereto being made, said account is hereby approved and ordered of record.\\\"' This is the form of the order required by the-statute to be made in approving an annual exhibit, if the court upon examination finds the same to be correct. Batts' Civ. Stats., art. 1876.\\nHad the court considered said account the final account of the ad ministrator, it would have been its duty \\\"to audit and settle the same.\\\" Batts' Civ. Stats., art. 2197.\\nThis the court, it seems, did not do, but in the language of his order he approved the same and ordered it of record. We are of the opinion that the facts recited do not show that the court considered or adjudicated the account of the administrator filed September 6, 1877, as a final account. Ho order was ther made discharging the administrator. We conclude the trial court did not err in overruling the appellant's demurrer to contestants' pleadings. However, if we are in error in this holding it seems clear the order is not final so as to bar further inquiry into matters not set out in the account and therein specified. It would not be final as to property accidentally or fraudulently omitted therefrom. Blackwell v. Blackwell, 86 Texas, 207; McAffee v. Phillips, 25 Ohio St., 374; Griffith v. Gody, 113 U. S., 89; Woerner, Am. Law of Admrs., sec. 506.\\nThe pleadings of the contestants specifically charge appellant with having as administrator collected certain moneys on claims in his hands-belonging to said estate which he failed to charge himself with in said account, but wrongfully and fraudulently appropriated' and converted, to his own use. Among other matters it is charged that he collected from O. L. Bailey on his note belonging to said estate $1000 which he-appropriated to his own use, also on the note of M. L. Swing he collected for said estate $171.39, which he failed to charge himself with. They further charge him with having collected other sums belonging to the estate which he failed to account for. These matters not appearing in the account of September 6, 1877, would not be concluded by the order approving the same, even were we in error in holding that account was not a final account. The demurrer being general, if the contestants were entitled to recover for any of the matters set up in their pleadings, the same was properly overruled. After the filing of the account of September 6, 1877, no further action was taken by the administrator in the probate court until Hovember 1, 1899, on which day he filed what is termed \\\"Administrator's supplemental account.\\\" In this account he charges himself with $304.51, the amount shown to be due certain creditors and court costs in his account of September 6, 1877. He then credits himself with $177.75, the amount paid out by him since his last report, to five different creditors and exhibits vouchers showing such payment. This payment represents 25 per cent of the face value of these claims. This account shows that there are five other creditors holding approved items, whose pro rata allowance amounts to $91.40 and gives the names of the creditors and states that \\\"no one comes to claim them.\\\" This account shows a balance in the hands of the administrator of $126.76. It gives the names of the contestants as the persons entitled to the residue of the estate and states the residence of each.\\nThe administrator in filing this account recognized the administration as still pending. But independent of this fact, article 1882 of the Bevised Statutes provides that \\\"where letters testamentary or of admin istration shall have once been granted, any person interested in the administration may proceed, after any lapse of time, to compel a settlement of the estate when it does not appear from the record that the administration thereof has been closed.\\\" The record fails to show that the administration has been closed. This being true, and the contestants being the heirs of the intestate, T. C. Hawpe, deceased, are entitled under this statute to compel a settlement thereof. The administration not having been closed, the heirs were not barred by limitation or by reason of their action being a stale demand. Main v. Brown, 72 Texas, 505; Branch v. Hanrick, 70 Texas, 733.\\nIt seems to be settled that in a contest of this character the approval by the probate court of the annual exhibits of the administrator showing the collection and disbursements of funds does not have the force of a judgment so as to preclude the heirs from contesting the same. And especially is this true when, as in this case, the heirs charge the administrator with fraud. Ingram v. Rogers, 3 Texas, 465; Walker v. Kerr, 7 Texas Civ. App., 498, 37 S. W. Rep., 399; Birdwell v. Kaufman, 25 Texas, 191; Hefflefinger v. George, 14 Texas, 581; Sabrinos v. Chamberlain, 76 Texas, 624, 629; Hagerty v. Scott, 10 Texas, 525; Murphy v. Menard, 11 Texas, 675, 677.\\nIt is insisted that the judgment adjudges against the administrator all costs of court in the administration, as well as costs on appeal in this court and the Supreme Court, should a writ of error be granted by that court. The court had the power to adjudge the costs. Batts' Civ. Stats., art. 3351. The district court had no power to adjudge the costs which might accrue in the appellate courts in anticipation of an appeal from its judgment. We construe the judgment as adjudging against the administrator such costs as the district court had the power to charge him wiih. The judgment, as we construe it, adjudges against the administrator -the costs that had accrued prior to the rendition of its judgment. However, we are of the opinion that the district court, in taxing the administrator with the costs accruing in the contest prior to July 39, 1903, erred. On that date the contest was dismissed for want of prosecution. On motion of contestants it was. reinstated on August 3, 1903. Hpon reinstating the case the county court adjudged the costs accruing prior to its dismissal against contestants and entered an order to that effect. This was an unconditional order, and at the end of that term of court became final. Fenn v. Railway Co., 76 Texas, 380. The court had the power to make this order and it has not been set aside or appealed from. Rev. Stats., art. 2255. So far as the record shows* the contestants dp not complain of this order. It was not annulled by the appeal taken by the administrator to the district court. This error does not require a reversal of the judgment, as this court has authority to reform the judgment in this respect. \\\" \\u2022\\nIt is contended that the court erred in decreeing that the money found to be in the hands of the administrator on a restatement of his account should be paid to the heirs of the' intestate, when the record shows that there are creditors of the estate whose claims are still subsisting, and that the estate is insolvent. The, record shows that on September 6, 1877, there were a large number of creditors whose claims had been established against this estate, and that the estate was insolvent. None of these creditors appeared to contest that account, although notice was duly given. Nor did any of the creditors appear and contest the final account, filed November 1, 1899. So far as the record shows no action has been taken by any one of these creditors, seeking a collection of his claim, since the administrator's account of September 6, 1877, was approved by the court. None of them has joined in, or intervened in, this contest, and not one is here complaining. For over twenty-five years they have remained inactive and acquiesced in the action of the administrator, and it must be conclusively presumed they have abandoned their claims by reason of their loches. As before stated, the administrator, in his account filed November 1, 1899, names the contestants as the persons entitled to the residue of the estate.\\nIt is insisted that the court erred in charging the administrator with interest. The court found that on September 6, 1877, the administrator had in his hands belonging to the estate $4293.16, and charges him with interest on this sum at the rate of, 12 per cent per annum from date to April 11, 1892, and at the rate of 10 per cent per annum from April 11, 1892, to date of trial, April 2, 1903. The interest charged is the highest legal rate allowed by the statute. It seems to be well settled that if a trustee having moneys in his hands knowingly applies it to his own use, or in his trade, he will be charged interest thereon at the highest legal rate. Chifflet v. Willis & Bro., 74 Texas, 245; Hill on Trustees, star page 374 et seq.; 3 Williams on Exs., 7 ed., pp. 404, 405.\\nThe administrator denied that he loaned funds belonging to the estate. He says he loaned his own money, and loaned it at \\\"good rates,\\\" at what would not be called \\\"high rates.\\\" We are not prepared to say, in view of this evidence, there was error in charging him with the highest legal rate of interest on the moneys found by the court on a restatement of his account to be in his hands belonging to the estate. Nor did the court err in refusing to allow the administrator commissions on moneys in his hands belonging to the estate. The court having found that the administrator wrongfully and knowingly failed to account for said sums, he was not entitled to commissions thereon. Schouler on Exrs. and Admrs., sec. 543, p. 640.\\nIt is contended that the trial judge, erred in charging the administrator with $840 collected by him upon the note of O. L. Bailey. It is insisted (1) that the approval of the account of September 6, 1877, is res adjudicaba of this matter; and (2) that this additional charge can not be found except upon the clearest proof, and that the evidence is insufficient to support the charge. The first contention is disposed of by the remarks under the first assignment. There is evidence to support the court's conclusion that this amount was received by the administrator, that it belonged to the estate of the intestate, and that he has failed to account for the same. In deference to the finding of the trial court we conclude that on September 6, 1877, the administrator had, as administrator, cash on hand belonging to the estate in the amount found by the trial court, and that he has failed to account for the same.\\nThe judgment will be reformed so as to charge the contestants with all costs accruing in this contest prior to July 29, 1902, including costs of this appeal. All other costs are taxed against the appellant.\\nFinding no reversible error in the record the judgment is affirmed.\\nReformed and affirmed.\\nWrit of error refused.\"}"
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+"{\"id\": \"2188983\", \"name\": \"W. W. Walling v. J. W. Hannig\", \"name_abbreviation\": \"Walling v. Hannig\", \"decision_date\": \"1889-04-26\", \"docket_number\": \"No. 6169\", \"first_page\": \"580\", \"last_page\": \"582\", \"citations\": \"73 Tex. 580\", \"volume\": \"73\", \"reporter\": \"Texas Reports\", \"court\": \"Supreme Court of Texas\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T20:19:34.527996+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"W. W. Walling v. J. W. Hannig.\", \"head_matter\": \"W. W. Walling v. J. W. Hannig.\\nNo. 6169.\\n1. Parties.\\u2014In a suit for debt against the husband the wife is neither a necessary nor proper party defendant when there is no prayer to subject the separate property of the wife to the payment of the debt.\\n2. Husband and Wife\\u2014Contract.\\u2014Marriage alone confers on the wife an agency to purchase necessaries for herself and children, if her husband fails to supply them. In a suit involving the liability of the husband, whether goods purchased by the wife-were necessary or not is for the determination of .the jury.\\nAppeal from Bexar. Tried below before Hon. Geo. H. \\u00cdToonan.\\nThe opinion states the case\\nOscar Bergstrom, for appellant.\\u2014\\nThe charge should be responsive to the issues in the case, one of the issues being that the goods sued for had not been bought by the appellant or by any one authorized by him to buy them for him, and that the goods were necessaries furnished the wife and children in the absence or without the consent of the appellant, should \\\"by proper instructions have been submitted to the jury. The husband \\u2022can not be sued for necessaries furnished to the wife and children during his absence or without his consent without joining the wife in the suit.\\nH. E. Barnard and W. W. King, for appellee.\\u2014\\nThe wife can not only \\u201cbind the husband for necessaries furnished-the wife and children, but can bind him for such things as are proper to his station in life, and in a, suit therefor it is not necessary to join the wife unless her separate property is sought to be charged. Black v. Bryan 18 Texas, 453; 1 Pars, on Con., 287.\", \"word_count\": \"1144\", \"char_count\": \"6268\", \"text\": \"Stayton, Chief Justice.\\u2014\\nDuring the months of February and March, 1885, many articles of house furnishing goods were sold by appellee to . appellant, and in the month of July of the same year there was a further sale of one article of furniture.\\nThe articles were all purchased by the wife of appellant, and were shown to be such things as were necessary to the family of a person in \\u2022appellant's condition in life.\\nSome payments were made on the bill from time to time by the wife, but when payment was demanded of the husband he refused to make it and denied the authority of his wife to make the purchases.\\nAbout the 1st of April, 1886, the bill was presented to appellant, and soon afterwards this action was brought.\\nThere is some conflict in the evidence as to whether appellant had directed appellee not to sell goods to his wife, but his own testimony tends to show if he gave such direction this was done after the sale and delivery of all the goods.\\nIt is urged that this action could not be sustained unless the wife of .appellant was made a defendant; but as this is not an action in which appellee is seeking to subject her separate estate to the payment of the \\u2022debt she was neither a proper nor necessary party.\\nThe court submitted to the jury the question, whether the goods purchased were necessaries, and informed them if they so found that they would find for appellee the sum claimed. There was no evidence before the jury which would have authorized a verdict for less than the sum claimed, and if the jury was of the opinion that the articles purchased were necessaries the authority of the wife to buy them is clear. If, however, it had appeared that the articles were not necessaries we do not see how appellant could avoid liability for their value. Marriage alone confers on the wife an agency under which she may buy necessaries for her self and children if her husband fails to do so, but.a further agency may be presumed from the conduct of the parties.\\nAs said by a distinguished English judge, \\\"When a husband is living' in the same house with his. wife he is liable to .any extent for goods which he permits her to receive there. She is considered as, his agent and the law implies a promise on his part to pay the value. If they are not cohabiting, then he is. in general only liable for such necessaries as from his situation in life it is his duty to. supply her. But even when they are parted, if the husband has any control over goods improvidently ordered by the wife so as to have it in his power to return them to the vendor, and he does not return them or cause them to be returned, he adopts; her .act and renders himself answerable.\\\" Waithman v. Wakefield, 1 Campb., 120.\\nThe evidence shows that the goods were used in his house for more; than a year, and after he was fully advised that they had been bought, by his wife on a credit he failed to return them or to offer to return them, unless upon condition -that appellee would return the partial .payments; made on the bill.\\nThe evidence shows that appellant was present when a part of the; goods were bought, that they were sent to his, place of business, where he-also resided, and that his wife had, before the goods in question were; bought, bought other goods from appellee for which he had paid,.\\nThe first charge refused assumed that the goods for the value of which this action was brought were not necessaries furnished for appellant's wife and children, and was correctly refused, for that was a question of fact for the jury. There was\\u00bbnot such evidence as would have authorized a finding that the goods were bought on the sole credit of appellant's wife, and the court correctly refused to charge upon that question.\\nThe second charge requested and refused would have induced the jury to believe that to render appellant liable for the value of the goods they must have been bought by him or by some one to whom he had expressly given authority to make the purchase, and would have been misleading in view of the facts.\\nThere were no facts that would have justified the giving of the fourth instruction asked by appellant, who did not while on the stand as a witness state that he had directed appellee not to sell goods to his wife. The only evidence looking in that direction, and it is in conflict with all other evidence, is that of appellant, who says that he returned a chair bought by his wife and then informed appellee that he would buy goods himself when he wanted them. The bill, however, shows that when the chair was returned all the goods had been bought.\\nThere is no error in the judgment and it will be affirmed.\\nAffirmed.\\nDelivered April 26, 1889.\"}"
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+"{\"id\": \"2196183\", \"name\": \"Sabine & East Texas Railway Company v. R. L. Wood\", \"name_abbreviation\": \"Sabine & East Texas Railway Co. v. Wood\", \"decision_date\": \"1888-02-07\", \"docket_number\": \"No. 5212\", \"first_page\": \"679\", \"last_page\": \"682\", \"citations\": \"69 Tex. 679\", \"volume\": \"69\", \"reporter\": \"Texas Reports\", \"court\": \"Supreme Court of Texas\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:40:58.920061+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Sabine & East Texas Railway Company v. R. L. Wood.\", \"head_matter\": \"No. 5212.\\nSabine & East Texas Railway Company v. R. L. Wood.\\n1. Negligence. \\u2014 The road bed of a railway company was so constructed as, that by the damming up of water against it during a storm, the house of the plaintiff, with the personal property it contained, was destroyed. In a suit for damages against the company the jury was instructed that it was the duty of the company to use that degree of care and prudence in so constructing its road bed so as to provide against damage to such adjacent property as a prudent, careful and cautious man would to protect himself against dama ge to his own property. Held, that there was no error.\\n2. Same \\u2014 Charge oe Court. \\u2014 A charge was also given to the effect that the defendant company \\u201cwould not be liable for damages arising from an extraordinury or unusual rise or overflow of water, such as could not be foreseen or anticipated by the use of the greatest care, skill and caution -in the construction of its road bed.\\u201d Held, that the defendant having failed to ask a charge to the effect that a less degree of care would have relieved it from liability, there was no error.\\n3. ' New Trial. \\u2014 The discovery of new testimony, cumulative in its character will not authorize a new trial.\\nAppeal from Jefferson. Tried below before the Hon. W. H. Ford,\\n(O'Brien & John, for appellant,\\ncited Houston & Great Northern Railroad Company v. Parker, 50 Texas, 330; Gulf, Colorado & Santa Fe Railway Company v. Holliday, 65 Texas, 513; Gulf, Colorado & Santa Fe Railway Company v. Pomeroy, 67 Texas, 498.\\nR. L. Wood, for himself,\\non the charge of the court, cited Mitchell v. Zimmerman, 4 Texas, 75; Norvell v. Oury, 13 Texas, 31; International & Great Northern Railroad Company v. Underwood, 64 Texas, 463; Queen Insurance Company v. Jefferson Ice Company, 64 Texas, 578; International & Great Northern Railroad Company v. Leak, 64 Texas, 659; Galveston, Harrisburg & San Antonio Railway Company v. Delahunty, 53 Texas, 206; McLane v. Rogers, 42 Texas, 220; Mercer v. Hall, 2 Texas, 284; Hardy v. DeLeon, 5 Texas, 211; Id., 318; Hollingsworth v. Holshousen, 17 Texas, 41; Berry v. Donley, 26 Texas, 737; Rail way Company v. Hardy, 61 Texas, 230; James v. Thompson, 14 Texas, 463.\", \"word_count\": \"1510\", \"char_count\": \"8570\", \"text\": \"Stayton, Associate Justice.\\nThis action was brought by the appellee to recover damages for the loss and destruction of personal property owned by.him and for injury done to his person, all of which he alleged resulted from the failure of the appellant properly to construct its railway near the town of Sabine Pass. The defendant alleged that its road bed was properly constructed, and that the injuries resulted from water driven upon the land by an unusually severe storm \\\" which the greatest care and skill in the construction of its road grade could not have prepared against.\\\"\\nThe evidence shows that Sabine Pass is situated on the west side of Sabine lake and pass, and that the land there and for a considerable distance above, is elevated only about two feet above the sea level. The land back is perhaps lower, and for many miles into the interior the country presents this low, flat surface, over which at times of high wind from the east and southeast, water from the lake, pass, and gulf, spread. The appellant constructed its road bed some one thousand two hundred, or one thousand five hundred feet west of the west bank of the pass, but at the town of Sabine Pass it approached nearer to the shore. Its road bed, which consisted of an embankment of earth, was four or five feet high, and between this and the lake or pass, a part of the town of Sabine Pass was situated.\\nThe appellant was living in a house in that part of the town which was destroyed by high water that came in during a high wind on June 14, 1886, and thus was his property destroyed and personal injury received by himself.\\nThe evidence tends to show that, prior to the construction of the railway, water frequently came over the land, but that it would flow' into the back country, and not become deep, but that upon this occasion its flow was impeded by the railway embankment to such extent that between the railway and the shore the water became four or five feet deep, while there was but little water, on the west side of the railway. The great weight of testimony tends to show that such winds and overflows had frequently occurred before the railway was built, but without injury to property; and there is some testimony tending to show that the company's engineer was informed that the embankment, if constructed solidly to such height, would bring about such results as ensued.\\nThe evidence renders it reasonably certain that the destruction of the house in which plaintiff's property was, as well as its loss and his injury, resulted from the accumulation and deepening of the water, caused by the railway embankment, and that but for it the loss would not have occurred. The court instructed the jury that it was the duty of the railway company, in the construction of its road bed \\\"to use that degree of care and prudence in so constructing its road bed so as to provide against damages to such adjacent property as a prudent, cautious and careful man would do to protect himself against damages to his own property.\\\" This charge was as favorable as the appellant could ask.\\nThe court, however, instructed the jury that if the appellant \\\"constructed its road bed or grade in such a way and in such manner as to guard against ordinary freshets, overflows, tides, etc., so as to prevent damage therefrom to adjacent property, it would not be liable for damages arising from an extraordinary or unusual rise or overflow of water, such as could not have been foreseen or anticipated by the use of the greatest care, skill and caution in the construction of its road bed.\\\" It is urged that the giving of this charge was error. The charge certainly stated a correct rule, and if the appellant was of the opinion that the exercise of a less degree of care would have relieved it from liability, a charge upon that subject should have been asked. If the charge had informed the jury that nothing less than the exercise of the highest skill, care and caution would relieve the appellant from liability for an injury resulting from an extraordinary or unusual rise or overflow, a different question would arise. There is no reason to believe that the jury were misled if they considered the entire charge.\\nIt is claimed that the verdict of the jury was contrary to and not supported by the evidence, in that it is claimed that the evidence clearly showed that the injury resulted from an extraordinary, sudden and violent storm which could not have been anticipated. The evidence is not of this character; to the contrary, it tends strongly to show that such storms had frequently occurred before, and that but for the want of proper care in the construction of the appellant's railway, injury most probably would not have resulted from such a storm.\\nThere was an application for a new trial based on testimony alleged to be newly discovered,which was overruled, and this is assigned as error. This evidence, as stated in the affidavit of the witness, was \\\"That he had lived at Sabine Pass from 1860 until 1869. That in 1865, before the Sabine and East Texas road was built, there was a storm, when the water and wind together carried away houses located on the front of Sabine Pass, between the water of the Pass and where the road bed of defendant is now located. That he is acquainted with the situation and bearing of the Pass, and that a wind blowing from the southeast would blow directly up the Pass, and that houses oh the front of the Pass would be in a very exposed situation, and that the force of the wind and wave would not be affected, when the wind is blowing from the southeast, by the railroad embankment of defendant; that he left Sabine Pass in 1869, and his residence on the front of the Pass, on account of the exposed condition of said front.\\\" We do not see what advantage this evidence could have been to the defendant; in so far as admissible it was cumulative; and the court would have been well justified in coming to the conclusion that such facts as the witness proposed to testify were known, if true, by the residents of the town generally, and \\u2022 that the exercise of a slight degree of diligence would have obtained evidence of such facts. It is not shown what diligence was used to obtain the testimony of the witness.\\nThere is no error in the judgment and it will be affirmed.\\nAffirmed.\\nOpinion delivered February 7, 1888.\"}"
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+"{\"id\": \"2269564\", \"name\": \"J. T. Thomson v. Lena Weisman et al.\", \"name_abbreviation\": \"Thomson v. Weisman\", \"decision_date\": \"1904-10-27\", \"docket_number\": \"No. 1347\", \"first_page\": \"170\", \"last_page\": \"175\", \"citations\": \"98 Tex. 170\", \"volume\": \"98\", \"reporter\": \"Texas Reports\", \"court\": \"Supreme Court of Texas\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:08:50.634383+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. T. Thomson v. Lena Weisman et al.\", \"head_matter\": \"J. T. Thomson v. Lena Weisman et al.\\nNo. 1347.\\nDecided October 27, 1904.\\n1. \\u2014Limitation\\u2014Registered Deed.\\nTitle may be acquired under the statute of limitation (five years possession, etc., by one claiming under a deed duly registered) though asserted' by one claiming the land under deed, not to himself, but made to another for his benefit. (Pp. 173, 174.)\\n2. \\u2014Same\\u2014Judgment.\\nDefendant against whom judgment for the recovery of land has been-, obtained, but remaining in possession, may assert title by limitation, against the plaintiffs so recovering, through possession under registered deed made-to a third party for his benefit after the judgment was recovered. (Pp.. 174, 175.)\\n3. \\u2014Limitation\\u2014Payment of Taxes.\\nIn supporting the claim of limitation by five years possession under a. registered deed, rendition for and payment of taxes by the claimant is sufficient, though the land was also rendered for taxation by the adverse claimant and the taxes first paid by him, and defendants receipt for taxes is prima, facie evidence of his rendition of the land therefor. (P. 175.)\\n4. \\u2014Limitation\\u2014Suspension by Death.\\nThe death of one against whom the bar of the statute of limitation was-not complete suspended the running of the statute for one year. (P. 175.)\\nError to the Court of Civil Appeals for the Third District, in an. appeal from Tom Green County.\\nWeisman and others sued Thomson for the recovery of land. Judgment was rendered for defendant and plaintiffs appealed. The judgment being reversed and rendered for appellants, Thomson obtained writ of error.\\nJoseph Spence, Jr., J. T. Thomson, and Etheridge & Baker, for plaintiff in error.\\nDefendant established his title under the statute of five, years limitation under the proof in this case, which shows conclusively that the defendant and those whose estate he has in the land held peaceable and adverse possession of the same, cultivating, using and enjoying the same, and paying all taxes thereon, said possession being under deeds duly recorded for more than five years prior to the institution of this suit. Terrell v. Martin, 64 Texas, 127; Heflin v. Burns, 70 Texas, 353; Cochrane v. Faris, 18 Texas, 850; Elliott v. Mitchell, 47 Texas, 451; Morris v. Meek, 57 Texas, 387; Huff v. Crawford, 88 Texas, 374; Cantagrel v. Von Lupin, 58 Texas, 578; Gillespie v. Jones, 26 Texas, 343; Fossett v. McMahan, 74 Texas, 547; McLavy v. Jones, 31 Texas Civ. App., 354; Evans v. Guiple, 35 S. W. Rep. (Texas), 941; Bateman v. Jackson, 45 S. W. Rep., 224; Riddle v. Whitehill, 135, U. S., 621; Vallentine v. Cooley, 33 Am. Dec. (Tenn.), 166; Underhill on Trusts, 37-42; Anderson\\u2019s Dic. of Law, 813; 27 Am. and Eng. Enc. of Law, 1 ed., 234.\\nAppellee did not hold possession of the land sued for in subordination or in recognition of any title or right of plaintiffs\\u2019 after the rendi tion of the judgment on the 23d day of November, 1888, and he is not prevented by said judgment from asserting adverse title to the land, notwithstanding said judgment, as under the facts said judgment was never enforced, and even if it interrupted the running of the statute in any case it could not affect the after-acquired title of defendant, either under the statutes of five years limitation or ten years limitation. Same authorities.\\nDefendant was entitled to show payment of taxes on the land in controversy under his plea of the statutes of limitation of five years, notwithstanding that appellants may have paid the taxes on the same laud for the same years at the Comptroller\\u2019s office. Cantagrel v. Von Lupin, 58 Texas, 577; Harrison v. McMurray, 71 Texas, 122.\\nThe statute does not require as an element of title under the statute of five years limitation that the person claiming the benefit of that statute must show that he rendered the property for taxation, or listed the same with the assessor. All that is required with respect to the payment of taxes is that the taxes must be paid for the five years under the deed duly registered. Under the facts in this case appellee complied with this requirement and the fact that the land was not rendered, or listed with the tax assessors of the counties, does not affect the question one way or the other. Cantagrel v. Von Lupin, 58 Texas, 577; Harrison v. McMurray, 71 Texas, 122.\\nThe court did not err in rendering judgment for defendant, because there was no evidence that the land was not rendered by those under whom appellee claimed. The rendition or leasing of the property with the tax assessors is not a requisite of title by limitation under the five years statute, and the fact that the land was rendered or not rendered by those claiming (under deeds duly registered and paying taxes on the land and the other elements required by the statutes of the five years limitation) is immaterial and not a part of the requirements of the statute, and the court did not err in so holding. Cantagrel v. Von Lupin, 58 Texas, 577; Haskins v. Wallet, 63 Texas, 219; Juck v. Fewell, 42 Fed. Rep., 577; Swenson v. Mynair, 79 Fed. Rep., 611.\\nHill & Lee, for defendant in error.\\nThe trial court erred in rendering judgment against the plaintiffs and in favor of the defendants because the evidence shows that plaintiffs held title to said land under the final judgment against defendant rendered November 23, 1888, after which said date defendant held said land in subordination to the title of plaintiffs and is estopped from asserting adverse title or claim thereto. Brolasky v. McClain, 61 Pa. St., 166; Root v. Woolworth, 14 Sup. Ct. Rep., 136; 23 Am. and Eng. Enc. of Law, 2 ed., 102; Woolworth v. Root, 40 Fed. Rep., 723; same case, 150 U. S., 401; Graydon v. Hurd, 55 Fed. Rep., 724; Juneman v. Franklin, 67 Texas, 411; Huntington v. Mattfield, 43 S. W. Rep., 53, 55 S. W. Rep., 361; Clark v. Kirby, 25 S. W. Rep., 1096; Bombarger v. Morrow, 61 Texas, 418; Bailey v. Laws, 3 Texas Civ. App., 536.\\nTo establish title under the five years statute of limitation, each vendee in the chain of title must have claimed title in himself under the deed registered in his name, and when the evidence shows that such vendee did not claim the land under the deed registered in his name for the use and benefit of some other person, such deed will not support title under the five years statute. Rev. Stats., arts. 3342-3349; Mhoon v. Cain, 77 Texas, 316; Satterwhite v. Rosser, 61 Texas, 166; Word v. Drouthett, 44 Texas, 365; 1 Am. and Eng. Enc. of Law, 2 ed., 789, 832; Sedg. & Waite, Trial of Title to Land, 2 ed., sec. 754-756.\\nThe court erred in rendering judgment in favor of the defendant against the plaintiffs Bertha, Belinda, Florence S. and Della Dopplemayer, because the evidence shows that said plaintiffs inherited from their mother, Fannie Dopplemayer, who was a married woman from a date prior to the year 1887 and to the time of her death, in November, 1900, and the statute of limitation was suspended for the period of one year from and after her death, and under the evidence said plaintiffs Bertha, Belinda, Florence S. and Della Dopplemayer were entitled to judgment for their said mother\\u2019s interest in said land. Rev. Stats., art. 3368; Acts 1895, p. 35.\\nThe court erred in rendering judgment in favor of the defendant and against the plaintiffs, because the evidence shows the plaintiffs had paid all the taxes upon said land for each of the years as required by law, and the payments by defendant, if any, were made after payments by plaintiffs and when no taxes were due upon said land. A person claiming title under the five years statute must show that he was claiming title thereto by rendering and paying taxes thereon in the manner provided by law. Rev. Stats., art, 3342; Dutton v. Thompson, 85 Texas, 115; Morrison v. Kelly, 22 Ill., 610; Iowa Railway Co. v. Guthrie, 53 Iowa, 387; Ross v. Coat, 58 Ill., 56; Carpenter v. Lewis, 119 Cal., 18; Cavanaugh v. Jackson, 99 Cal., 672; Stearns v. Gittings, 23 Ill., 387; Bolden v. Sherman, 101 Ill., 483; Ely v. Brown, 56 N. E. Rep., 181; Morris v. St. Louis Nat. Bank., 17 Colo., 231.\", \"word_count\": \"3180\", \"char_count\": \"18054\", \"text\": \"BROWN, Associate Justice.\\nOn August 33, 1901, plaintiffs instituted. this suit in the form of trespass to try title in the District Court of Tom Green County against J. T. Thomson. The plaintiffs in this suit are the same as the plaintiffs in a former suit hereafter described, or are the devisees and heirs of some of those plaintiffs, now deceased. The suit last referred to was instituted by the heirs of Abraham Young in the District Court of Tom Green County against J. T. Thomson and Joseph Spence to recover the same land now sought to be recovered in this suit, and on the 33d of November, 1888, judgment was rendered in that cause in favor of the plaintiffs against the defendants, which judgment has not been set aside nor reversed. '\\nThe defendant, Thomson, pleaded in this case not guilty, and in proper form set up as a defense to this action the statute of limitation of five years and of ten years.\\nPlaintiffs deraigned title to Alexander Pope and it was agreed that Pope's title was in Abraham Young, the ancestor of plaintiffs. The defendant, Thomson, introduced (1) a quitclaim deed from James E. Brown to Joseph Spence and J. T. Thomson, dated in 1885, conveying the land sued for in this case. (2) Quitclaim deed from Chas. T. Potter to George B. Jackson, dated October 20, 1894, describing the land in controversy and duly recorded in the proper county on February 9, 1895. (3) Special warranty deed from George B. Jackson to J. F. Williams for the same land, dated October 29, 1897, recorded in the proper county_ on November 1, 1897. (4) A deed from J. F. Williams to J. T. Thomson, dated February 20, 1900, conveying the land and duly recorded in the proper county February 23, 1900.\\nThe payment of taxes upon the land was proved to have been made to the State for the years 1895 to and including 1897 in the name of George B. Jackson, and for the years 1898 and 1899 in the name of J. F. Williams, and for the years 1900 and 1901 in the name of J. T. Thomson. Defendant proved the payment of taxes for each year by producing a receipt from the tax collector of the county in which the land was situated. Plaintiffs also proved payment of the taxes from 1895 to 1901 inclusive, and they paid each year before defendant paid.\\nThe undisputed evidence shows that the land in controversy was embraced within the inclosure of a pasture claimed by Thomson and Spence in 1885 and at the time the suit was brought in 1888. No question is made in this case as to the sufficiency of the inclosure to sustain the statute of limitations, and we will therefore not enter into any details as to that matter. Thomson and Spence had possession of the pasture from 1885 up to the time of the entry of judgment in 1888. No writ of possession was issued upon the judgment, and no possession was ever given to the plaintiffs of the land under that judgment, but Thomson and Spence continued in the possession of the land until Thomson bought Spence's interest, after which Thomson occupied the land until the 20th of October, 1894, when Thomson took a lease from Jackson, acknowledging his title to the land, and continued in possession and control of the land, claiming it under Jackson's title, until October 29, 1897, when the land was conveyed by Jackson to Williams; from which time Thomson held possession in his own right, claiming under the deed to Williams.\\nThomson's testimony shows that at his instance the conveyance was made by Jackson to Williams, and that he, Thomson, furnished the money with which Williams purchased the land, and had the deed made in Williams' name to be held for him, Thomson. There is much evidence concerning this matter of possession and the change of title from one person to another, but we believe that this statement of the facts will be sufficient to understand the questions which are presented in this \\u2022case. At -the trial in the District 'Court judgment was rendered for Thomson, which was reversed by the Court of Civil Appeals and judgment rendered for defendants in error.\\nThe honorable Court of Civil Appeals held that when Jackson conveyed the land to Williams Thomson's possession was broken, although he continued in the possession and received Jackson's title by virtue of the deed made to Williams. This ruling is based-upon the proposition that one in possession of land, claiming it as his own under a deed made for his benefit to a third person, can not acquire title by limitation under the statute of five years. In so holding, that honorable court erred, for which its judgment must be reversed.\\nThe statute is in the following language: \\\"Every suit to be instituted to recover real estate as against any person having peaceable adverse possession thereof, cultivating, using or enjoying the same, and paying taxes thereon, if any, and claiming under a deed or deeds duly registered, shall be instituted within five years,\\\" etc. It will be observed that the statute does not prescribe that the person in possession shall claim under a deed in his own name. A tenant claims land under the deed to his landlord and the heir claims under the deed to his ancestor, yet the possession of either tenant or heir under such a deed will support a plea of five years limitation. Thomson claimed the land for himself under deeds duly registered and was within the terms of our statute. Possession gives notice of a right in the occupant, the nature of which may be ascertained by inquiry of him. If inquiry had been made of Thomson as to the right by which he held possession he would no doubt have referred his right to the deed from Jackson to Williams, because it was under that deed he claimed title to the land. If the plaintiffs had observed the possession of Thomson while he held as tenant under Jackson they would not, without inquiry, have known more as to the title he held under than they knew when they saw him holding for himself under the deed to Williams. We can see no reason why the person in whom the title is may not as well hold the possession under the deed which conveys the title to his trustee as that a tenant, or an heir, should hold under a deed to his landlord or to his ancestor. If Williams, the trustee, had gone into actual possession, that possession would have inured to the benefit of Thomson, the beneficiary; for a stronger reason the possession of the latter would sustain his own claim.\\nThe defendants in error insist that after the judgment in their favor was rendered against Thomson and Spence in 1888, the latter became the tenants at sufferance of plaintiffs in that judgment, and that, until notice of a repudiation of that relation, Thomson could not acquire adverse possession so as to constitute title against them by limitation. We find these cases which sustain that position: Root v. Woolworth, 150 U. S., 401; Hintrager v. Smith, 89 Iowa, 270. But in the case of Pendleton v. McMains, 8 Texas Ct. Rep., 52, the Court of Civil Appeals of the Fourth District held the contrary doctrine. Judge Fly for the court said: \\\"More than thirteen years had elapsed after the rendition of the judgment before this suit was instituted, and during all those years defendants in error had been in,possession of the land and claiming title to it against the world. There is no peculiar sacredness in a title to land obtained through a judgment that lifts it out of the scope and purview of statutes of limitation, and if the possession be adverse for ten years, whether it be by the defendant in the judgment or anyone else, it will perfect a title.\\\" Application for writ of error was made in that \\u2022case to this court and was denied. The point at issue was presented by the application. This court has held that a vendor, by executed conveyance, who remains in possession of the land, claiming it as his own, without notice other than possession, may acquire against his vendee a title by limitation. Smith v. Montes, 11 Texas, 24; Harn v. Smith, 79 Texas, 310; Texas & P. Ry. Co. v. Maynard, 51 S. W. Rep., 255; Knight v. Knight, 178 Ill., 553; Stearns v. Henderson, 9 Cush., 497; Murray v. Hagle, 9 So. Rep., 368.\\nPlaintiffs in error also contend that they having paid taxes on the land for the several years from 1895 to 1901 inclusive, prior to the time when Thomson paid taxes for the same years, the latter could not by paying taxes thereon acquire title by virtue of his possession for five years. We are of opinion that while in possession of the land Thomson had the right to render it for taxation in the name of the person for whom he was holding, or in his own right when holding for himself, and thus to comply with the statutory requirement that he should pay taxes during the continuance of his possession, notwithstanding other persons claiming the same land might, at the same time, pay taxes thereon. Cavanaugh v. Jackson, 99 Cal., 672. Neither was it necessary for Thomson to produce the rendition of the land for taxation by him, for the receipts of the tax collector of the county for the taxes of each year proved, prima facie, that the land had been rendered for taxes for that year, because such collector had no power to make the collection except upon the rendition of the land.\\nIt is also claimed by the defendants in error that the court erred in holding all of the plaintiffs barred by the statute of limitation, because some of them were married women from a time prior to the year 1895 and before Thomson's possession of the land began. As to those who survived until the suit was begun, the contention is not sound, but one of the married women, Mrs. Dopplemeyer, having died before limitation had run against her, the statute was suspended for one year, which had not expired when this suit was filed; therefore the District Court erred in entering judgment against the heirs of Mrs. Dopplemeyer upon the plea of limitation.\\nIt is ordered that the judgment of the Court of Civil Appeals be reversed and that the cause be remanded to the District Court.\\nReversed and remanded.\"}"
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+"{\"id\": \"2322456\", \"name\": \"Aetna Casualty & Surety Company v. Joe Ware\", \"name_abbreviation\": \"Aetna Casualty & Surety Co. v. Ware\", \"decision_date\": \"1938-12-07\", \"docket_number\": \"No. 7416\", \"first_page\": \"298\", \"last_page\": \"299\", \"citations\": \"132 Tex. 298\", \"volume\": \"132\", \"reporter\": \"Texas Reports\", \"court\": \"Supreme Court of Texas\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T22:21:11.513324+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Aetna Casualty & Surety Company v. Joe Ware.\", \"head_matter\": \"Aetna Casualty & Surety Company v. Joe Ware.\\nNo. 7416.\\nDecided December 7, 1938.\\nRehearing overruled January 25, 1939.\\n(123 S. W., 2d Series, 332.)\\nJohnson & Rogers, of San Antonio, for plaintiff in error.\\nG. Woodson Morris, of San Antonio, for defendant in error.\", \"word_count\": \"313\", \"char_count\": \"1900\", \"text\": \"Mr. Presiding Judge Smedley\\ndelivered the opinion of the Commission of Appeals, Section B.\\nThe Court of Civil Appeals affirmed a judgment of district court in favor of defendant in error Ware against plaintiff in error Aetna Casualty & Surety Company for $3712.25 as compensation under the Workmen's Compensation Law for total permanent incapacity caused by injury suffered in the course of his employment. 113 S. W. (2d) 981. The suit was brought by defendant in error to set aside the final decision of the Industrial Accident Board denying him compensation for the injury.\\nThe several assignments of error in the application for writ of error present but one question, that of the jurisdiction of the district court, the contention made being that \\\"defendant in error Joe Ware failed to discharge the burden of proof showing the jurisdictional requisites which would give the district court jurisdiction of his appeal from the award of the Industrial Accident Board, in that the only proof of any claim filed with the Industrial Accident Board made by the defendant in error Joe Ware wholly failed to allege any amount of money claimed as compensation by the said Joe Ware, and wholly failed to allege any facts from which any amount of compensation could be calculated.\\\" The assignments of error are overruled for the reasons given and on the authorities cited in the opinion in Booth v. Texas Employers' Insurance Association, 132 Texas 237, 123 S. W. (2d) 322, this day decided.\\nThe judgment of the Court of Civil Appeals is affirmed.\\nOpinion adopted by the Supreme Court, December 7, 1938.\\nRehearing overruled January 25, 1939.\"}"
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+"{\"id\": \"255658\", \"name\": \"Hartford Fire Insurance Company v. William Cameron\", \"name_abbreviation\": \"Hartford Fire Insurance v. Cameron\", \"decision_date\": \"1898-02-19\", \"docket_number\": \"\", \"first_page\": \"237\", \"last_page\": \"241\", \"citations\": \"18 Tex. Civ. App. 237\", \"volume\": \"18\", \"reporter\": \"Texas Civil Appeals Reports\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T22:44:08.258262+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hartford Fire Insurance Company v. William Cameron.\", \"head_matter\": \"Hartford Fire Insurance Company v. William Cameron.\\nDelivered February 19, 1898.\\n1. Bes Judicata\\u2014Judgment for Insurance Premiums.\\nAn insurance company\\u2019s agent notified C. that a policy issued to him was canceled for failure to pay the premiums due thereon, and then brought suit against 0. in his own name in justice court and recovered judgment there for the earned portion of the premium due to date of the cancellation, claiming that he had himself settled that amount for C. with his companj' under its requirements. The property having afterwards burned, C. brought suit against the company on the policy, his claim as to payment of the premium thereon being that he had settled it with the company\\u2019s agent through another insurance agent. Held, that the judgment in the justice court did not determine the issue in this latter case as to the payment of the premium by C. as claimed by him.\\n2. Pire Insurance\\u2014Cancellation of Policy\\u2014Beturn of Unearned Premium.\\nWhere an insurance policy provides that the company may cancel it on notice, and that the insured shall be entitled to a return of the unearned portion of the premium paid, the company must, upon giving such notice, return or tender back the unearned premium as a condition precedent to the forfeiture by cancellation.\\nError from Tarrant. Tried below before Hon. Irby Dunklin.\\nThompson & Wood, for plaintiff in error.\\nCapps & Cantey, for defendant in error.\", \"word_count\": \"1952\", \"char_count\": \"11117\", \"text\": \"HUNTER, Associate Justice.\\nThis suit was filed January 20, 1896, by William Cameron against the Hartford Eire Insurance Company to recover on a $1000 policy of insurance on an elevator, machinery, etc., situated in the city of Vernon, Wilbarger County, Texas, the plaintiff claiming a loss during the life of the policy. The defense ivas that the policy aatls not in force at the date of the fire, because it had been canceled prior to that date. A trial Avas had before a jury, who returned a verdict for $1089.67, being the amount of the principal of the policy and interest thereon to the date of trial.\\nThe policy was issued on October 1, 1894, for one year, and contained the following clause: \\\"This policy shall be canceled at any time at the request of the insured; or by the company by giving five days notice of such cancellation. If this policy shall be canceled as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last reneAval, this company retaining the customary short rate; except that when the policy is canceled by this company, by giving notice, it shall retain only the pro rata premium.\\\"\\nThe property was destroyed by fire May 30, 1895. Proofs of loss were made, but the company returned them, denying liability.\\nThe record discloses that McKinney & Co. were the agents of the defendant at Vernon, and that Lorance was an agent there of other insurance companies. The plaintiff had policies on his elevator with companies AA'hom Lorance represented, Avhich policies were canceled. Thereupon Lorance, .Avithout consulting Cameron, it seems, applied to McKinney & Co. for this $1000 policy sued on, and it was issued to Cameron but delivered to Lorance, Avho in turn delivered it to Cameron, in place of the policy AAdiich had been canceled by Lorance's company. Cameron had paid Lorance for the policy Avhich had been canceled, and when the policy in question was brought to him by Lorance, he accepted it in lieu of the one canceled, and surrendered the latter. He did not pay anything for the issuance of the policy sued on, nor did Lorance pay the premium to McKinney & Co. When Lorance requested McKinney & Co. to issue the policy to Cameron nothing AAdiatever was said about the payment of the premium. The evidence tends to shoiv that there was an unearned balance of premium on the canceled policy equal to the premium on the one issued by the defendant, and that the defendant's policy, as between Lorance and Cameron, took the place of the canceled. policy which Lorance took up at the time he delivered the policy issued by defendant. Cameron was not informed of the cancellation of the policy issued by Lorance until the latter brought the one issued by defendant and made the exchange.\\nMr. McKinney's evidence proved that he made a report to the defendant company, in which he charged himself with the premium on the policy, but he did not remember whether he sent the cash or not. The company, however, always looked to him for the premium on this policy, as well as on all others issued by him. The company never collected from its policy holders. He was to pay the company cash for every policy he issued, and he had to account to the company for the premium, whether he collected it or not. He made monthly reports, in which he always charged himself with the premiums on all policies delivered by him, and credited the company by them. He had a right to give away a policy if he wanted to, as the company always looked to him for the premium. He had a settlement with his company in September, 1895, in which he received a credit for the unearned portion of the premium on this policy.\\nThe evidence was conflicting as to whether McKinney looked to Lorance for the payment of the premium or to Cameron. Lorance testifies that McKinney brought the bill to him, requesting him to pay it, and that he directed him to apply certain premiums which he had collected for Lorance, and which were so applied. McKinney states'that he charged the premium to Cameron and afterwards demanded it of Cameron's agent, to wit, on December 1, 1894, when the agent claimed that he had settled the premium with Lorance. On December 3, 1894, McKinney notified Cameron's agent that the policy was canceled for nonpayment of the premium, and also, upon instructions from defendant's-Hew York office, wrote Cameron himself on February 16, 1895, to the same effect. On February 21st Cameron acknowledged receipt of the letter, but refused to agree to the cancellation unless the unearned pro rata of the premium was returned to him in cash. To this McKinney & Co. replied on February 25, 1895, that they had never received any premium, and that they would look to him for the portion of the premium earned to the date of cancellation, February 16, 1895; and soon afterwards McKinney & Co. sued Cameron in their name and recovered the amount, $14.99.\\nThe court below correctly refused to charge that the judgment in favor of McKinney & Co. against Cameron in the justice court for the-earned portion of the premium determined the issue in this case that the premium on the policy had not been paid to the company. The very fact that McKinney & Co. sued for the premium and recovered in their individual names would seem to establish that they had paid the company the premium; otherwise they could not have recovered in that case. At all events, the parties were not the same in that suit as in this, and it does not appear that the issue in that case was whether the company had received payment, but rather whether the agents, having paid the company the premium for Cameron, were entitled to recover the amount at least of the earned portion thereof from him.\\nThe other question raised here is whether at the time of the fire the policy had been canceled. The proper solution of this question defends upon whether the company complied strictly with the terms and \\u2022spirit of that clause in the contract by which it reserved the right to \\u2022cancel the same. It is contended by plaintiff in error that under this cancellation clause, which we have copied above, it is only necessary to give the insured five days notice that the policy is canceled, in order to render it void and of no further force; while the defendant in error insists that the spirit and legal meaning of this contract entitles him to a return of the unearned portion of the premium, in connection with the giving of the notice, as a condition precedent to the forfeiture of his rights thereunder.\\nOf course, the premium must have been paid or settled for, either to the company or to the agent, by the insured or somebody for him, before a return of the premium or any portion thereof could be demanded. But this question was properly submitted to the jury in the court's \\u2022charge, and the general verdict for plaintiff shows that their decision of this issue was against the defendant; and the evidence, we think, fully sustains this finding. White v. Insurance Co., 120 Mass., 330; Boat Yard Co. v. Assurance Co., 118 Pa. St., 415; Insurance Co. v. Hoover, 57 Am. Rep., 511, 113 Pa. St., 591; Insurance Co. v. Kelley, 15 Am. Rep., 620, 24 Ohio St., 345; Bodine v. Insurance Co., 10 Am. Rep., 571.\\nWe think that the cancellation clause, taken as a whole, means that when the company elects to cancel the policy it must, upon giving notice \\u2022of such intention, at the same time return or tender to the insured or his agent the unearned portion of the premium. The latter part of the clause, by providing that the company, in such cases, \\\"shall retain only the pro rata premium,\\\" clearly implies that the other portion shall be returned; and while it does not in turn declare when the return shall be made, it would be unreasonable and unjust to allow it to cancel its obligation and retain the consideration upon which it was based. It would be equally as unjust and inequitable to require the insured \\\"to dance attendance at the place of business of an insurance company, and await their pleasure,\\\" and probably be put to his action to recover the little sum due him, the cost of which might be greater than the sum due. Insurance Co. v. Walker Lodge, 1 White & W. C. C., sec. 758; Insurance Co. v. McGuire, 51 Ill., 342; Van Valkenberger v. Insurance Co., 51 N. Y., 465; Hollingsworth v. Insurance Co., 45 Ga., 294; 1 May on Ins., 3 ed., secs. 67d, 67j.\\nIt is a well settled rule in equity that one who seeks to cancel an obligation must tender back the consideration in his bill to cancel, and we see no reason why this rule should not apply in the more summary method of cancellation of the contract by giving notice. We are aware that the cases cited bjr us arose on policies in which the terms of the cancellation clause clearly placed the right to cancel on the giving of notice and the returning of the unearned portion of the premium, while here the first part of the clause under consideration would indicate that the right to cancel was based alone on the giving of five days notice; but we think the difference is only a verbal one. The meaning of the two clauses is identical when read as a whole, and when considering the right of the company t.o cancel its obligation in cases where it has received the consideration.\\nWe are therefore of opinion that the court did not err in refusing to submit to the jury the issue as to whether the contract had been canceled at the time of the loss, for the reason that there was no evidence of the repayment or tender of the unearned premium to the insured at the time the notice of cancellation was given.\\nThe judgment is in all things affirmed.\\nAffirmed.\"}"
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diff --git a/tex/2580175.json b/tex/2580175.json
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+"{\"id\": \"2580175\", \"name\": \"Arthur L. Johns, alias John Leroy Crow v. State\", \"name_abbreviation\": \"Johns v. State\", \"decision_date\": \"1951-01-17\", \"docket_number\": \"No. 24968\", \"first_page\": \"503\", \"last_page\": \"510\", \"citations\": \"155 Tex. Crim. 503\", \"volume\": \"155\", \"reporter\": \"Texas Criminal Reports\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"\", \"parties\": \"Arthur L. Johns, alias John Leroy Crow v. State.\", \"head_matter\": \"Arthur L. Johns, alias John Leroy Crow v. State.\\nNo. 24968.\\nJanuary 17, 1951.\\nRehearing Denied March 14,1951.\\nB. T. Bader, Dallas, for appellant.\\nWill R. Wilson, Jr., Criminal District Attorney, William B. Henley and Charles S. Potts, Assistants District Attorney, Dallas, and George P. Blackburn, State\\u2019s Attorney, Austin, for the state.\", \"word_count\": \"2581\", \"char_count\": \"14375\", \"text\": \"GRAVES, Presiding Judge.\\nThis is a charge of the rape of a girl under the age of 18 years, and upon a trial thereof appellant was found guilty and given a penalty of a life term in the state prison, and he appeals.\\nThe testimony shows that the girl, Shirley Mae Johns, was 13 years old at the time of the alleged occurrence. This girl's mother was married to appellant and died some three months after the girl's birth. The child was for a while reared by the defendant's mother until she was about nine years old. She was always told that appellant was her stepfather. When the stepfather's mother died, the girl lived with appellant and seemed to have moved from pillar to post in Iowa and Texas, traveling through many of the different states of the Union. When this girl was 10 or 11 years old, her stepfather married again, and for awhile they lived together, but the new wife left them about two years prior to this trial. Eventually, in their wanderings they came to Dallas, where the acts herein complained of are alleged to have taken place. This girl testified that on a day in July, 1949, her stepfather had an act of intercourse with her, after which he inserted a banana into her private parts, and then put a weiner into her private parts, and thereafter ate both the banana and the weiner. Evidently this latter act was looked upon by the girl as a punishment for some undisclosed reason. They were both unclothed and were sleeping on the same bed at the time. He had a little gun and threatened to kill her if she told anyone, and she did not tell it at such time. However, two days after this happened, she called the police and told them about it.\\nIn the cross-examination of this witness the defense brought out the fact from her that appellant had brought up the proposition of their being married so that if the police questioned their acts, he could show that this girl was his wife, but no marriage had ever occurred. In discussing this question of marriage, the girl testified as follows:\\n\\\"I told the jury that the defendant spoke of marriage on several occasions. One reason for it I think was because he wanted to join the Army. He didn't have no place for me. I know that was the reason because he told me. Another reason was that he was afraid somebody would find out about our living. He told me that, too. He was afraid they would find out he was having intercourse with me, and he said if anybody finds out, he would have a marriage license to prove that we had gotten married.\\n\\\"The defendant had had intercourse with me before then. He started having intercourse with me when I was ten years old. That was up in Souix City, Iowa. He would have intercourse with me every other night, and sometimes every night. He just didn't want me to go to school, seemed like.\\\"\\nThe state introduced in evidence the voluntary statement of appellant as follows:\\n\\\"My name is John Leroy Crow. My address is 1509 So. Harwood. I am 43 years old. I was born in Ponca, Nebraska, a small town about 150 miles from Lincoln. I lived in several other towns in Nebraska and went to Sioux City, Iowa, when I was around 11 or 12 years old. When I was 15 I left and did a lot of roaming around. In 1935 I met a woman named Fern Wonderly and married her in the latter part of 1935, Nov. 5th. A baby was born to Fern, March 29th, 1936, a girl, and Fern named her Shirley Mae. On Aug. 22nd, 1936, Fern died and my mother (Leona Dyer) took care of Shirley until she died in 1945. After this I hired a housekeeper and kept her for a little while. In the month of Nov. 1945, I married Micky Billingmeir and we lived in Sioux City, Iowa. In the month of Sept, of 1947 Mickey was away from home and I was sleeping in one room and Shirley was sleeping in the other room. I woke up and Shirley was in bed with me and was loving me. I believe it was the next night Shirley went to bed with me and I had an intercourse with her. She was about 11 years old then. I had a few more such relations with her before Mickey came back. In October of 1947 Mickey and Shirley and I decided to come to Texas. We went to several towns, then went to Tyler, Texas. We rented a little acreage there to raise chickens. In the last part of April Mickey left me. (I don't know where she went). After Mickey left I started sleeping with Shirley again. In Nov. we moved to Dallas and in January we moved to 1509 So. Harwood. Shirley and I talked it over and decided that we wanted to get married when she got old enough. I continued to sleep with Shirley as man and wife and the last intercourse I had with her was about four or five nights ago.\\\"\\nBill of Exceptions No. 1 is concerned with a motion made by appellant's attorneys in which they assert that they were not going to controvert the acts of intercourse between appellant and his stepdaughter, but that they were informed that the state intended to prove prior acts of intercourse between such parties. This motion being offered prior to the trial, we think the court was correct in refusing to make a ruling thereon, since prior to such being offered, he had no way of knowing whether this testimony would be admissible or not.\\nBill of Exceptions No. 2 relates to a further motion requesting the court to instruct the state's attorneys not to offer that portion of the testimony relative to the insertion of certain articles into the private parts of this girl. This motion was also overruled by the court on the ground that he had no way of knowing at such time whether such acts were admissible or not.\\nUnder the full statement made by this girl, we think such conduct upon appellant's part was a portion of the res gestae, she having stated, \\\"He had intercourse with me once that day. He put this banana and this weiner inside of me after the act of intercourse.\\\"\\nBill No. 4 relates to the same proposition. We think the state has the right to prove its case in any way it may see fit under proper rules and regulations, and an accused cannot be allowed to direct either the method or manner of such proof. See Beard v. State, 146 Tex. Cr. R. 96, 171 S.W. (2d) 869.\\nBill No. 5 relates to a question propounded to this girl after she had testified to the unnatural acts of intercourse with her stepfather and his actions immediately thereafter, and she was asked the question, \\\"Have these acts occurred before?\\\" Before the objection thereto had been ruled upon, the girl answered, \\\"Yes, many times.\\\" Whereupon the trial court sustained appellant's objection thereto and instructed the jury not to consider the question and answer for any purpose. Nevertheless, appellant's attorneys insisted that the question and answer could not be eliminated from the minds of the jury and asked for a mistrial. The bill herein attempts to make this question refer to the insertion of a banana and the weiner in the girl's body, but the trial court refuses to so certify, and refers us to the statement of facts. From its perusal, it seems to refer to prior acts of intercourse of which there seemed to be many, and this matter will be further discussed in Bill of Exceptions No. 6.\\nThis last bill refers to the introduction in proof of further acts of intercourse had between the appellant and the prosecutrix while in Dallas, as well as other acts with her stepfather while in other states, beginning, it seems, while she was ten years old and living in Sioux City, Iowa.\\nBills Nos. 7 and 8 also involve the same proposition relative to the admission in evidence of prior acts of intercourse in a charge of rape under the age of consent.\\nIt is here worthy of note that while appellant did not take the witness stand, he did enter a plea of not guilty, and it became the duty of the state to prove its case. See Booker v. State, 124 Tex. Cr. R. 562, 63 S.W. (2d) 1033; also 42 Tex. Jur. p. 78, see. 55.\\nThe decisions of this court relative to the admission of prior acts between the same parties in prosecutions such as the instant one have not been entirely uniform and have caused some confusion in trials therefor.\\nWe do hold that in trials of an accused for rape under the age of consent and if material in determining the truth or falsity of the accusations, there can be taken into consideration the associations between the parties and their evident regard each: for the other as evidencing the probability of the charged act and the unnaturalness of the accused's attitude toward the victim of his lust, even in the presence of other acts of like character to the one on which the prosecution is based.\\nWe quote again from People v. Scott, 141 Pac. 945, as set forth in White v. State, 137 Tex. Cr. R. 481, 131 S.W. (2d) 968, 969, as follows:\\n\\\"Any act or declaration of defendant tending to show a desire or purpose on his part to have illicit relations with the prosecutrix or any solicitation or representation made by him to excite a similar desire on the part of his victim, or to overcome her natural aversion to wantonness, would be relevantly and clearly connected with the crime and therefore admissible.\\\"\\nIn matters of incest or rape under the age of consent, it is often of importance to show the attitude between them and the relative size, age and strength of the parties, and if possible, to show how one in a position demanding care and guidance of a related person, has failed in such duty and has adopted an unnatural attitude relative thereto, and by fondling or otherwise, evidences a desire for sexual gratification toward such child or relative. We therefore think that where any such acts become material to thus show them they are admissible. That the previous sexual conduct with this girl prior to the charge and since she was a 10-year-old child was admissible herein. Any cases holding to the contrary will be overruled without setting forth the same herein.\\nBill No. 7 complains because the prosecutrix was allowed to testify that appellant had proposed marriage to this girl; \\\"that he said if anybody finds out, he would have a marriage license to prove that we had gotten married.\\\" We are impressed with the fact that such was a part of the scheme by which appellant was endeavoring to protect himself from the consequences of his acts with this girl, who was too young at such time to have contracted marriage with anyone. See Article 4603, R. C. S. The trial court's qualification to this bill evidences the fact that this matter was rendered admissible on the further ground that this question was initiated by appellant's previous cross-examination of the prosecutrix.\\nBill No. 8 relates to the proof by the state on re-direct examination of the prosecutrix in which she was interrogated relative to acts of intercourse taking place previous to the one charged in this indictment. This bill's qualification on the part of the trial court shows that this line of testimony was, in the opinion of the trial court, proper, having been opened up by the defendant's own cross-examination. As said by us in the discussion of Bill No. 5, we think such previous acts were admissible herein.\\nIt is true that this record shows that appellant had begun debauching this girl when she was three years younger, at the age of ten years, and that such conduct began in Sioux City, Iowa, where they were then living, and continued up to the date mentioned in the indictment.\\nBill No. 9 complains of such showing as being three years previous to the instant one, well beyond the bar of the statute of limitations, and therefore inadmissible. Under what we have herein said, such previous acts had value in showing the attitude of appellant toward this girl as being lustful, and calculated to lead her into a life of wantonness rather than the attitude of protection demanded of him towards this child of his deceased wife.\\nBill No. 10 contains an objection to a written statement signed by appellant as set forth hereinabove and was objected to on the grounds that appellant having made no denial of his guilt, he not having taken the witness stand, that such confession was therefore inadmissible; and again, that the portions thereof that related to acts of intercourse with the girl prior to the one set forth in the indictment and his continuation of such acts should have been excluded therefrom because there had been no controverting nor any denial of the act herein charged.\\nAs previously held herein, we think the failure to deny such charged act with the girl would not limit the state in its presentation of the facts pertinent to the issue, and especially so by virtue of the fact that a plea of not guilty had been entered herein by the appellant. See Beard v. State, 146 Tex. Cr. R. 96, 171 S.W. (2d) 869.\\nFurther Bills Nos. 11, 12 and 13 relate to certain remarks alleged to have been made by an assistant district attorney to the jury in his closing argument. In the first place, there is naught to show that these remarks were made, the trial court certifying that he had no recollection thereof; and again, we think, if same were made, they do not seem to have been such that could have materially affected the jury in its deliberations, and were not of such importance as to merit a reversal hereof.\\nWe have carefully gone over this record and find nothing therein that would call for a reversal hereof.\\nThe judgment is accordingly affirmed.\"}"
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diff --git a/tex/2623599.json b/tex/2623599.json
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+"{\"id\": \"2623599\", \"name\": \"Ella Arthur v. State\", \"name_abbreviation\": \"Arthur v. State\", \"decision_date\": \"1960-10-26\", \"docket_number\": \"No. 32,205\", \"first_page\": \"161\", \"last_page\": \"162\", \"citations\": \"170 Tex. Crim. 161\", \"volume\": \"170\", \"reporter\": \"Texas Criminal Reports\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T20:27:54.429365+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ella Arthur v. State\", \"head_matter\": \"Ella Arthur v. State\\nNo. 32,205.\\nOctober 26, 1960\\nReeves & McDonald, by John B. McDonald, Palestine, for appellant.\\nLeon Douglas, State\\u2019s Attorney, Austin, for the state.\", \"word_count\": \"258\", \"char_count\": \"1555\", \"text\": \"WOODLEY, Judge.\\nThe offense is murder; the punishment, 5 years.\\nAppellant, a Negro woman 70 years of age, shot and killed her daughter-in-law, about 40 years of age. The killing occurred at appellant's home, and appellant's testimony raised the issue of self-defense.\\nAppellant filed motion for suspended sentence and offered a number of witnesses who testified to her good reputation as peaceable and law abiding.\\nOver appellant's objection, the state was permitted to introduce evidence from several witnesses that the reputation of the deceased for being a peaceable and inoffensive person was good.\\nThere is no evidence suggesting any previous difficulty between appellant and .the deceased, and no evidence that the deceased had at any previous time made threats against appellant.\\nIt is never competent for the state in the first instance to prove that the person slain was peaceable and inoffensive. Such evidence becomes admissible in rebuttal when the opposite has been testified to in behalf of the defense, or when the defendant seeks to justify the homicide on the ground of threats made by the deceased. See Art. 1258 V.A.P.C. and cases cited under Note 6; Pollard v. State, 119 Tex. Cr. Rep. 452, 45 S.W. 2d 618; Keith v. State, 50 Tex. Cr. R. 63, 94 S.W. 1044; and Johnson v. State, 130 Tex. Cr. R. 596, 95 S.W. 2d 968.\\nThe judgment is reversed and the cause remanded.\"}"
\ No newline at end of file
diff --git a/tex/2624730.json b/tex/2624730.json
new file mode 100644
index 0000000000000000000000000000000000000000..1e81b8f5c0be692f35363c30982f02bdbed0d174
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+"{\"id\": \"2624730\", \"name\": \"Gregorio Leal, Jr. v. State\", \"name_abbreviation\": \"Leal v. State\", \"decision_date\": \"1960-06-08\", \"docket_number\": \"No. 31,964\", \"first_page\": \"71\", \"last_page\": \"76\", \"citations\": \"170 Tex. Crim. 71\", \"volume\": \"170\", \"reporter\": \"Texas Criminal Reports\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T20:27:54.429365+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Gregorio Leal, Jr. v. State\", \"head_matter\": \"Gregorio Leal, Jr. v. State\\nNo. 31,964.\\nJune 8, 1960\\nState\\u2019s Motion for Rehearing Overruled October 12, 1960\\nHarry J. Schulz, Three Rivers, for appellant.\\nJ. Taylor Brite, District Attorney, Cotula, and Leon Douglas, State\\u2019s Attorney, Austin, for the state.\", \"word_count\": \"1649\", \"char_count\": \"9396\", \"text\": \"WOODLEY, Judge.\\nThe offense is murder under Art. 802c V.A.P.C.; the punishment, 2 years.\\nThe prosecution arose out of a head-on collision of an automobile traveling a highway in LaSalle County and a motorcycle traveling in the opposite direction on his right side of said highway. The accident occurred shortly after 7 A.M. on Sunday.\\nThe appeal presents the question of whether there is sufficient evidence to sustain a finding that appellant was intoxicated.\\nThe accident, which resulted in the death of the motorcycle rider, was witnessed by Howard Hulbert and Melvin Krahn, who were, in an automobile following the motorcycle at the time. Leroy Farrell, the owner of this automobile, was asleep in the back seat.\\nAppellant and three companions were riding in the automobile which collided with the motorcycle. His statement to Patrolman Peterson, who investigated the accident, was to the effect that he and his companions left Nueva Laredo about 5:30 or 6:00 o'clock A.M., after eating and drinking Tom Collins mixed drinks during the night there.\\nHis version of the accident is thus shown in his statement:\\n\\\"On the way I was kind of sleepy and my eye lids felt kind of heavy, but I don't remember going to sleep while I was driving. I started driving just outside of the City Limits of Laredo, Texas on the way back. I was driving 50 to 55 miles per hour and some times 40 miles per hour. I don't remember going through any towns up until the time of the wreck.\\n\\\"Just before the wreck I saw the Motorcycle coming and he looked like he was on my side of the road, I cut to the left and the motorcycle did too. I cut back to the right and let go of the steering wheel and closed my eyes, I did not hit my brakes but I did take my foot off the gas. The next thing I knew I was laying on the pavement.\\\"\\nState's witness Howard Hulbert gave the following description of the accident:\\n\\\"Q. And just what did the car do from the time you first observed it until the time of the collision? A. When I first saw it it was over on his shoulder and then it started coming over across the center line and came all the way over to our shoulder and when it got there the motorcycle went towards the center line' a little bit and just about the time the motorcycle got beside the car it looked like the driver must have woken up or something because the driver started to swerve back and hit the motorcycle.\\\"\\nState's witness Melvin Krahn testified:\\n\\\"Q. Just tell the jury, please, Mr. Krahn, what happened, what you saw there from the time you first saw the automobile until the time of the collision. A. Well, the automobile, it seemed to be coming straight down the highway and all of a sudden it swerved over on its side of the road, on the side where the motorcycle was, and the motorcycle moved over a little bit, but it stayed in its lane, and then the guy in the car must have realized he was asleep or something and seen he was on the wrong side of the road and when he swerved back over he hit the motorcycle head-on.\\\"\\nOthers who were present at the collision but did not testify were appellant's three companions in the car which struck the motorcycle, and Leroy Farrell who was in the back seat of his car which Hulbert was driving.\\nThe accident was investigated by Texas Highway Patrolman Ray Curtis and George Peterson. The witnesses Hulbert and Krahn stayed at the scene with appellant and his companions until the patrolmen, who were called from Cotulla, arrived about 8 a.m. and made their investigation.\\nState's witness Hulbert testified that the driver and the boys riding in the front seat with him were thrown from the car. He testified that neither appellant nor his companions in the car: \\\"didn't really act any out of the ordinary except they were shook up\\\"; \\\"Q. Could you tell whether they had been drinking or not, any of them? A. It didn't look like it to me.\\\"\\nAnd on cross-examination he testified that the driver of the car \\\"didn't look like he was drinking or anything like that\\\" to him, and in his opinion he was not drunk.\\nThe witness Melvin Krahn testified that appellant appeared shocked and nervous and \\\"didn't seem to know what he was doing\\\" and that he formed the opinion that the man had fallen asleep driving the car and woke up suddenly and that he could not tell whether any of the occupants of the car were drinking. \\\"They looked like they were real drowsy, but I didn't smell any liquor. I didn't pay that much attention.\\\"\\nThe evidence shows that other persons came to the scene of the accident, including the justice of the peace from Encinal, but they were not called to testify.\\nPatrolman Curtis testified that appellant identified himself as the driver of the automobile involved and that he asked for his driver's license and interrogated him about the accident, and after some 45 minutes appellant was taken to Cotulla in the patrol car.\\nPatrolman Curtis expressed the opinion that appellant had been drinking, \\\"Just when I couldn't say.\\\" Though his qualification and observations were established, Patrolman Curtis was not asked whether appellant was in his opinion intoxicated at the time he observed him.\\nAfter reaching Cotulla appellant was taken before Justice of the Peace Wildenthal and a complaint was signed by Patrolman Curtis charging him with negligent homicide. Judge Wildenthal testified that appellant was not drunk at that time.\\nIt will be noticed that no witness who saw him at the time of the collision expressed the opinion that appellant was intoxicated.\\nPatrolman Peterson was the state's best witness on the question of intoxication. He testified that after he arrived with Patrolman Curtis he talked to appellant who said he was the driver, observed him and his manner of walking, and his general appearance, described them and testified:\\n\\\"Q. In your opinion was he intoxicated and under the influence of intoxicating liquor? A. Yes sir. At the time I was observing him pretty close to try to figure out whether he was, that caused the accident, and in my opinion he was.\\\"\\nOn cross-examination he testified:\\n\\\"Q. Not knowing when the accident happened, you don't know whether in your opinion he was intoxicated at the time the accident happened? A. No Sir .\\n\\\"Q. Actually in all fairness to everybody, to the defendant and to the jury, you really didn't think he was intoxicated when you were down there investigating the accident? A. That is what I was thinking, yes sir, that he was intoxicated. I was, what you would say, I was on the border line whether he was intoxicated and how much of it was caused by his actions I did not know.\\\"\\nThe witness refused to deny that he expressed the opinion at the scene that the accident was caused by the driver of the car going to sleep.\\nAppellant consenting, a specimen of his urine was taken by Patrolman Peterson at 9:35 a.m. and was introduced at the trial. It is apparent the witness Peterson, as well as the jury, relied heavily upon its alcohol content.\\nRoger Bickham, chemist and toxicologist, who examined the specimen, testified that the urine had an alcohol content of .15 percent which, translated to blood, was equivalent to .12 percent alcohol in the blood. He declined to testify that the person whose urine was examined was intoxicated at the time he passed the urine, but testified that he was \\\"probably intoxicated.\\\"\\nMr. Bickham testified at length and in detail, both as to the analysis and its reliability and accuracy and to the effect of certain percentages of alcohol in the body fluids. He related sufficiently his training and experience qualifying him to testify as an expert on both subjects.\\nThe testimony of the chemist was to the effect that all persons having .15 percent alcohol in their blood were intoxicated, and some 90 percent of individuals whose blood showed an alcohol content of .12 percent would be intoxicated; that normally \\\"your urine level is at a very close ratio to your blood level,\\\" but several factors were pointed out which would change the normal level. One was that after the alcohol was no longer going into the blood stream from the stomach, alcohol in the blood would burn up at the rate of .02 percent per hour, while alcohol that had passed into the urine in the bladder would not. It was therefore important that the bladder be drained before a specimen for analysis is taken.\\nIt would be possible, the witness testified, for an individual whose urine showed .15 percent alcohol to have as little as .04 percent alcohol in his blood, at which level no person is intoxicated.\\nThe expert testimony made it clear that only the alcohol in the blood stream goes to and affects the brain, and the amount of alcohol in the urine is important only as it indicates the amount of alcohol in the blood.\\nAs we understand the evidence, the state failed to prove beyond a reasonable doubt that appellant was intoxicated at the time of the collision. Proof that he was \\\"probably intoxicated\\\" or \\\"had been drinking\\\" or of a \\\"border line\\\" case of intoxication will not suffice.\\nBecause the evidence is insufficient to sustain the conviction the judgment is reversed and the cause remanded.\"}"
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+"{\"id\": \"4380050\", \"name\": \"INTERNATIONAL & GREAT NORTHERN RAILROAD COMPANY v. Charles A. Gready\", \"name_abbreviation\": \"International & Great Northern Railroad v. Gready\", \"decision_date\": \"1904-10-12\", \"docket_number\": \"\", \"first_page\": \"536\", \"last_page\": \"538\", \"citations\": \"36 Tex. Civ. App. 536\", \"volume\": \"36\", \"reporter\": \"Texas Civil Appeals Reports\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:54:36.495955+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"INTERNATIONAL & GREAT NORTHERN RAILROAD COMPANY v. Charles A. Gready.\", \"head_matter\": \"INTERNATIONAL & GREAT NORTHERN RAILROAD COMPANY v. Charles A. Gready.\\nDecided October 12, 1904.\\n1. \\u2014Personal Injuries\\u2014Pleading.\\nAn allegation that plaintiff was precipitated with great force and violence to the ground, striking the cross-ties and ground, whereby he was so crushed and mangled that he suffered serious and permanent injury to his back, spine, head, kidneys, etc., was not subject to special exception because not stating what portions of his body were struck or crushed in the fall in order that defendant might be able to determine whether or not the injuries could have resulted therefrom, since it was in effect an allegation that the result to plaintiff from the fail consisted of injuries to his back, spine, head, kidneys, etc., and no recovery was sought for the fall and crushing except as specified.\\n2. \\u2014Same\\u2014Defective Handhold\\u2014Evidence.\\nWhere plaintiff was injured by the handhold on a car giving way, testimony of witnesses who examined the handhold after the accident that the screw had pulled out of the wood was admissible though the witnesses did not see the accident.\\n3j\\u2014Same\\u2014Examination of Physicians.\\nExamination of a plaintiff by physicians appointed by the court being a matter subject to consent of plaintiff, he may terminate such examination before it is concluded.\\nAppeal from the District Court of Bexar. Tried below before Hon. S. J. Brooks.\\nHicks & Hicks, for appellant.\\nNat B. Jones and A. B. Storey, for appellee,\", \"word_count\": \"1116\", \"char_count\": \"6577\", \"text\": \"JAMES, Chief Justice.\\nAppellee, a brakeman, sustained injury from a fall, which resulted, as he alleged, from appellant's negligence in failing to use ordinary care to see that the car handhold, which gave way with him, was properly secured. Appellant answered by exceptions, general denial, and a special plea that if the handhold was defective, the defect was latent and that the risk incident thereto was assumed by appellee.\\nAppellant specially excepted to the following allegation in the petition, where plaintiff stated his injuries, upon the ground that it was not sufficiently specific and did not inform defendant of the exact parts of plaintiff's body which were injured, or the exact character and extent of said injuries. The allegation was: That he was precipitated with great force and violence to the ground, striking the cross-ties and ground, whereby he was so crushed and mkngled that he suffered serious and permanent injury to his back, spine, head, kidneys, and internally as to make him incompetent to labor and earn money for the rest of his life, directly causing paralysis of his limbs and body, destroying his sexual capacity, impairing his eyesight and power to control his urine, and from which he suffered and will continue to suffer great physical and mental pain so long as he lives.\\nAppellant insists that he was entitled to have plaintiff allege definitely what portions of his body were crushed and mangled in the fall or what part of his body was struck in the fall, in order that it might have notice thereof and be able to determine whether or not the injuries or injurious results alleged could readily have resulted.\\nAs we construe the pleading, it was in substance and effect an allegation that the result to plaintiff from the fall consisted of injury to his back, spine, head, kidneys, etc. It specified the particular injuries for which he sought recovery. It asked none for the crushing and mangling except as specified. The statement that he was so crushed and mangled by the fall that he suffered these results, was after all no more than alleging that the fall occasioned these injuries. We tbink there was no error in overruling the exception.\\nBy several assignments, which are grouped, appellant urges that the court erred in allowing certain witnesses to testify that the handhold in question had pulled out when they did not see the accident, and therefore the testimony was the conclusion of these witnesses. There was testimony that the screw pulled out, besides that of said witnesses. Appellant does not point us to any testimony that it became unscrewed, or that it came loose in other way than by pulling out of the wood. There evidently was none. Under these circumstances the assignment should be overruled. However, the several witnesses'mentioned in the assignments saw the handhold after the accident, and testified that the screw had pulled out of the wood. There was ample evidence that the wood was rotten. It seems to us that it can not be held that a witness who inspected the condition of the handhild under such circumstances states a conclusion, instead of a visible fact, when he testifies it pulled out.\\nIn reference to the sixteenth assignment it appears that plaintiff consented to an examination by three physicians appointed by the court, which was made, the court adjourning at 11 a. m. for that purpose. The court convened at 2 p. m. and waited three hours. At that time two of the physicians appeared and testified. On cross-examination\\\" they stated that they had applied all the tests except chloroform and the electric battery, whereupon appellant's counsel made a motion to have these tests applied, whereupon the court asked one of the- physicians how long it\\\" would take, and he answered \\\"I don't know.\\\" Upon further inquiry the physician stated that it was \\\"very difficult to. say; for instance we must get the battery in good working order, which is not always the case; the battery is not used all the time and it has a trick of getting out of order, and there you are.\\\" Whereupon counsel for plaintiff said, \\\"We think there ought to be some limit to this thing, and we don't propose to submit to the pain of it ;\\\" whereupon the court said, \\\"Well, we won't go any further then.\\\" This all occurred in the presence of the jury and was taken advantage of in argument by both sides. The above is the statement of the trial judge in his qualifiea tian to the bill of exceptions, and must be taken as a recital of what, actually transpired. The qualification which controls is not in accord with some things that are stated in the body of the bill. The court was without power to require plaintiff to submit to an examination. Austin & N. W. Ry. Co. v. Cluck, 97 Texas, 172, 77 S. W. Rep., 403. Such an examination being subject to the consent of plaintiff, he could, we think, have terminated an examination while same was being conducted. The court did not err in not ordering a second or further examination against his .will.\\nThe remaining assignments of error, numbers 19 and 22, are not sustained.\\nAffirmed.\\nWrit of error refused.\"}"
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+"{\"id\": \"4492208\", \"name\": \"W. S. Fields v. The State\", \"name_abbreviation\": \"Fields v. State\", \"decision_date\": \"1898-06-25\", \"docket_number\": \"No. 1549\", \"first_page\": \"488\", \"last_page\": \"491\", \"citations\": \"39 Tex. Crim. 488\", \"volume\": \"39\", \"reporter\": \"Texas Criminal Reports\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T17:52:20.176927+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"W. S. Fields v. The State.\", \"head_matter\": \"W. S. Fields v. The State.\\nNo. 1549.\\nDecided June 25, 1898.\\n1. Rape\\u2014Indictment\\u2014\\u201cRavish.\\u201d\\nIn defining rape, our statute uses the terms \\u201ccarnal knowledge.\\u201d Where an indictment charged that defendant \\u201cdid then and there ravish and have carnal of the said A. R.,\\u201d omitting the word \\u201cknowledge,\\u201d after the word \\u201ccarnal,\\u201d Held, the word \\\"ravish\\u201d was equivalent in meaning to \\u201ccarnal knowledge,\\u201d and the indictment was sufficient.\\n2. Rape of Female Under Fifteen Years of Age\\u2014\\u201cForce\\u201d\\u2014Charge.\\nWhere the indictment for rape alleged an assault, and that the female was under the age of 15 years, and it was objected that the charge of the court was erroneous in defining force and \\\"threats,\\u201d the use of force and threats not being charged in the indictment, Held, there was no error; the evidence in the case showing that the rape was without the consent of the female, proof of force was part of the res gestae of the offense.\\n3. Same. '\\nOn a trial for rape of a female under the age of 15 years, where the evidence establishes the offense beyond question, and that it was. without the- consent of the female, a charge defining force and threats, even if unnecessary, is not injurious, because it does not tend to secure the conviction.\\n4. Impeachment of Witness.\\nA witness can not be impeached by evidence that he had knowingly committed bigamy, where he had never been indicted therefor.\\n5. Hew Trial\\u2014Practice on Appeal.\\nAffidavits referred to in a motion for new trial can not be considered on appeal where they have not been brought up in the record.\\n6. Hew Trial\\u2014Hewly Discovered Evidence to Impeach Witness.\\nOrdinarily a new trial will not be granted for newly discovered evidence which is merely to impeach a witness.\\nAppeal from the District Court of McLennan. Tried below before Hon. John G. Winter, Special Judge.\\nAppeal from a conviction for rape; penalty, five years imprisonment in the penitentiary.\\nThe indictment charged appellant with rape committed \\u201con or about\\u201d the 1st of April, 1897, upon one Alice Bequardt, a female then and there under the age of 15 years, she not being the wife of appellant.\\nThe testimony shows substantially that the prosecutrix was born on the 10th of December, 1882. That she had been married to Fritz Bequardt about sixteen days, and since their marriage had been living at the house of the appellant, who was a married man. The day before the offense was committed, Mrs. Fields, wife of appellant, had gone to Waco to attend a sister who was sick, and Fritz Bequardt, the husband of prosecutrix, had also gone to Waco on business, saying that he would return home that night or the next night. The room in which the prosecutrix slept adjoined that in which Fields, the appellant, slept. The prosecutrix testified that she sat up reading the Bible and waiting for her husband\\u2019s return until about 10 o\\u2019clock, when she retired to bed\\u2014 her bed being .within about fifteen feet of the bed occupied by Fields, there being an opening between the two rooms without any door closing the same. That about 6 o\\u2019clock in the morning, while yet dark, after she had been asleep all night, she was awakened and found the defendant on top of her between her legs, and that he had penetrated her about one inch with his male organ. That she thought it was her husband on her, and called him \\u201chunny,\\u201d and then called him by name, \\u201cFritzy,\\u201d and that defendant said nothing; that she then threw defendant off her, and he tried again to come back, when she kicked him, and she got off to-one side of the bed. In the evening, when her husband returned, she told him of the occurrence, and he got a wagon and they loaded their effects into it and went to the home of her father, who, upon- being informed of what had occurred, went to town and filed a complaint against defendant with a justice of the peace.\\nDefendant introduced no testimony.\\nR. H. King sherry and Dyer & Dyer, for appellant.\\nMann Trice, Assistant Attorney-General, for the State.\", \"word_count\": \"1754\", \"char_count\": \"9923\", \"text\": \"HENDEES03ST, Judge.\\nAppellant was convicted of rape, and his punishment assessed at confinement in the penitentiary for a term of five years; hence this appeal.\\nAppellant made a motion in arrest of judgment, on the ground that the first count in the indictment, the one on which appellant was convicted, did not charge any offense. The charging part of said indictment is as follows: That defendant, \\\"W. S. Fields, in and upon Alice Bequardt, a female then and there under the age of fifteen years, did make an assault, and the said W. S. Fields did then and there ravish and have carnal of the said Alice Bequardt, the said Alice Bequardt not being then and there the wife of the said W. S. Fields,\\\"'\\u2014the ground of objection being that the indictment failed to charge carnal knowledge, the word \\\"knowledge\\\" being left out in that connection; and it is insisted that the word \\\"ravish\\\" does not supply this defect. The language of our statute, in defining rape, uses the terms \\\"carnal knowledge,\\\" and does not use the term ravish;'' and we can not hold this indictment good if the word \\\"ravish\\\" does not mean carnal knowledge. At common law the term or word \\\"ravish\\\" is essential in every indictment for rape; and it appears to include the idea that the party charged, forcibly and against the will of the woman, had carnal knowledge of the female. See Harman v. Com., 12 Serg. & R., 69. The learned judge in that case cites the definitions of the term \\\"ravish\\\" by Lord Hale, Hawkins, and Chitty, which support the view above announced, to wit, that the word \\\"ravish\\\" is equivalent in meaning to carnal knowledge of the woman against her will and consent. For a further definition of the term \\\"ravish,\\\" see Harper v. Delp, 3 Ind., 225; O'Connell v. State, 6 Minn, 279 (Gil., 190); and Century Dictionary. This same view appears to prevail in this State. See Davis v State, 42 Texas, 226; Elschlep v. State, 11 Texas Crim. App., 301; Gibson v. State, 17 Texas Crim. App., 574. Evidently, the pleader in this case, from negligence, left off the word \\\"knowledge\\\" after the word \\\"carnal.\\\" But we hold that this was immaterial, in view of the fact that the indictment contains the distinct allegation that the said W. S. Fields did then and there ravish the said Alice Bequardt, which is equivalent to saying that he had carnal knowledge of her without her consent.\\nAppellant objects to the charge of the court, because it contained the definition of \\\"force\\\" and also of \\\"threats,\\\" insisting that these definitions were unnecessary and misleading, because the indictment alleged that the prosecutrix was under 15 years of age, and that force and threats under such circumstances were immaterial. The statute says that the assault can be made upon, a female under 15 years of age, with or without her consent, and with or without the use of force. An assault is alleged in the indictment; and, when we recur to the proof in the case, there is no suggestion of consent on the part of the prosecutrix. She appears t\\u00f3 have been asleep, and appellant awoke her in the act of copulation. About the time he penetrated her person, she discovered that it was not her husband, and flung him from her. How, notwithstanding the indictment does not charge the use of force, except'as above stated by means of an assault, yet, in our opinion, it does not follow that the court erred in giving a charge on the use of force. The indictment is good for rape on a woman under age, without the use of force; and proof of force would merely be a part of the res gestae of the offense. Furthermore, we would observe that the jury assessed the lowest punishment; and the charge of the court with regard to the use of force did not serve to aggravate the offense in the minds of the jury. Hor can it be said that such charge tended to secure a conviction, because, on a re view of the testimony, the State's testimony shows, without question, the commission of the offense, and this is not gainsaid by any evidence on the part of the appellant.\\nAppellant proposed to prove by the witness Fritz Eequardt, the husband of the prosecutrix, that he was married and had a living wife at the time he married the said Alice Eequardt; and he states that this testimony was offered for the purpose of affecting the credibility of the witness Fritz Eequardt, and of showing that he was knowingly guilty of a felony, to wit, bigamy, when he entered into the marriage relationship with the prosecutrix. We have held that proof of a legal accusation of felony or of a misdemeanor involving moral turpitude could be introduced to discredit or impeach a witness, but testimony of the character here offered is not admissible. Appellant proposed to go into the particulars of an alleged offense that had never found its way into any court. The judge did not err in rejecting this testimony.\\nAppellant, in his motion for a new trial, sets up, as a ground for a new trial, newly discovered evidence. He alleges that Fritz Eequardt, when on the stand, swore that his wife was under 15 years of age at the time he married her, and that he had never made an affidavit that she was over 18 years of age for the purpose of procuring a marriage license. Appellant says that he has discovered since, from a certificate from the county clerk of Coryell County, that Fritz Eequardt did make an affidavit before him that the prosecutrix was over the age of 18 years at the time he procured a license to marry her. In the application for a new trial on this ground, certain affidavits are referred to, but they do not appear in the record. So we can not consider this ground. Furthermore, we would state that the testimony is merely of an impeaching character. A new trial is not ordinarily granted for this character of evidence. We find no error in the record, and the judgment is affirmed.\\nAffirmed.\\n[Hots.\\u2014Appellant's motion for- a rehearing was overruled at the Tyler branch without a written opinion.\\u2014Beporter.]\"}"
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diff --git a/tex/4560060.json b/tex/4560060.json
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+"{\"id\": \"4560060\", \"name\": \"Tom Abernathy v. The State\", \"name_abbreviation\": \"Abernathy v. State\", \"decision_date\": \"1907-11-06\", \"docket_number\": \"No. 3831\", \"first_page\": \"41\", \"last_page\": \"42\", \"citations\": \"52 Tex. Crim. 41\", \"volume\": \"52\", \"reporter\": \"Texas Criminal Reports\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T23:32:47.870161+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Tom Abernathy v. The State.\", \"head_matter\": \"Tom Abernathy v. The State.\\nNo. 3831.\\nDecided November 6, 1907.\\nCarrying Pistol\\u2014Complaint\\u2014Name of Affiant.\\nIn a prosecution which was based on a complaint whfch purported to be signed by Horace White, where the testimony showed that the complaint was in fact made by Horace Wright, the same was reversible error, notwithstanding article 464, Code Criminal Procedure; the name of the affiant must be signed to the complaint. Following Ma\\u00edz v. State, 36 Texas Crim. Rep., 447. Qualifying Upton v. State, 33 Texas Crim. Rep., 231.\\nAppeal from the County Court of Earns. Tried below before the .Hon. W. H. Clendenin.\\nAppeal from a conviction of aggravated assault; penalty, a fine of $100.\\nThe opinion states the case.\\nNo brief on file for appellant.\\nF. J. McCord, Assistant Attorney-General, for the State.\", \"word_count\": \"452\", \"char_count\": \"2621\", \"text\": \"BROOKS, Judge.\\nAppellant was convicted for unlawfully carrying a pistol and his punishment assessed at a fine of $100.\\nAppellant filed a motion in arrest of the judgment, on the ground that the complaint, upon which the information is filed, purports to be signed by one Horace White when, in fact and in truth, there was no such person as Horace White before the Justice of the Peace at the time such complaint was made; that the party that did make the complaint was named Horace Wright. The testimony shows that the complaint was made by Horace Wright; he being illiterate, the Justice wrote his name for him, as he thought at the time, Horace White, whereas, his name was Horace Wright.\\nArticle 464, Code Criminal Procedure, reads as follows: \\\"An indictment shall not be held insufficient nor shall the trial, judgment, or other proceedings thereon be affected by reason of any defect, or imperfection of form in such indictment which does not prejudice the substantial rights of the defendant.\\\"\\nIn passing upon the validity of a complaint this court held in the case of Hpton v. State, 33 Texas Crim. Rep., 231, that it is not necessary to the validity of a complaint, that the name of affiant be set out in the body of the complaint. However, this court held in the case of Malz v. State, 36 Texas Crim. Rep., 447, that it is necessary to properly sign the name of the affiant at the bottom of the complaint.\\nThe writer feels that this decision is somewhat at variance with the statute as there can be no cavil but what Horace Wright swore to the complaint. Therefore, it could not prejudice the rights of appellant to hold this indictment good.\\nBy reason of the decision last cited, the judgment in this case is reversed and the prosecution ordered dismissed.\\nReversed and dismissed.\\nHenderson, Judge, absent.\"}"
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+"{\"id\": \"4794193\", \"name\": \"E. E. Sapp v. The State\", \"name_abbreviation\": \"Sapp v. State\", \"decision_date\": \"1919-11-09\", \"docket_number\": \"No. 5128\", \"first_page\": \"606\", \"last_page\": \"624\", \"citations\": \"87 Tex. Crim. 606\", \"volume\": \"87\", \"reporter\": \"Texas Criminal Reports\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"\", \"parties\": \"E. E. Sapp v. The State.\", \"head_matter\": \"E. E. Sapp v. The State.\\nNo. 5128.\\nDecided November 9, 1919.\\nRehearing denied June 25, 1920.\\n1. \\u2014Murder\\u2014Change of Venue\\u2014Practice on Appeal.\\nWhere the judge in the county of the prosecution changed the venue of a murder case on his own motion to a county of another district, with the consent of defendant, on account that a trial alike fair to the State and the defendant could not be had in the county where the indictment was found, and defendant did not reserve a bill of exceptions as authorized under Article 634, C. C. P., at the time the order of change of venue was made, but made a plea to the jurisdiction in the county to which the venue was changed, there was no error in overruling said plea and motion.\\n2. \\u2014Same\\u2014Continuance\\u2014Practice on Appeal.\\nA motion for continuance was correctly refused on the ground that defendant\\u2019s application for bail was pending in the Court of Criminal Appeals, or on account of the absence of his counsel, other able counsel repre- ' senting him.\\n3. \\u2014Same\\u2014Severance\\u2014Continuance\\u2014Practice on Appeal.\\nThe trial court did not err in overruling the - application for severance asking that the codefendant be placed upon trial first, where the cases were pending in separate counties and the severence asked for would have amounted to a continuance of the case. Following Price v. State, 68 Texas Crim. Rep., 556, and other cases.\\n4. \\u2014Same\\u2014Jury and Jury Law\\u2014Challenge for Cause\\u2014Conscientious Scruples.\\nThere was no error in allowing the State to challenge jurors for cause who stated under voir dire that they had conscientious scruples against inflicting the death penalty as punishment in a case depending on circumstantial evidence. Following Shafer v. State, 7 Texas Crim. App., 239, and other cases.\\n5. \\u2014Same\\u2014Eyewitness\\u2014Circumstantial Evidence.\\nThat there was an eyewitness to the actual homicide would not necessarily remove the case from the domain of circumstantial evidence, nor would the statement of the man who actually fired the fatal shot, to the effect that the defendant hired him to do so, take the case out of the rule of such evidence. Following Bloch v. State, 81 Texas Crim. Rep., 1.\\n6. \\u2014Same\\u2014Jury aud Jury Law\\u2014Opinion of Juror.\\nObjection to a particular juror who stated that he had formed an opinion by mere reading of newspapers, etc., and such that would not influence him in arriving at a verdict in the case, was correctly overruled.\\n7. \\u2014Same\\u2014Evidence\\u2014Conspiracy\\u2014Declarations of Co-conspirators.\\nWhere the indictment alleged that defendant acted as an accomplice in the murder of his wife, and only the name of one co-conspirator is mentioned in the indictment as principal, but the State claimed a conspiracy between all the parties, which was to kill the deceased to get her money, the statements of the principals and co-conspirators pending the conspiracy was admissible in evidence, and such conspiracy continued until the main object thereof was obtained, which was to get the property of the deceased and which, therefore, did not cease until the will of the deceased was probated. Following Gracy v. State, 57 Texas Crim. Rep., 68, and other cases; also, Cox v. State, 8 Texas Crim. App., 303. Davidson, Presiding Judge, and Morrow, Judge, Concurring, qualifiedly.\\n8. \\u2014Same\\u2014Confessions of Principals\\u2014Conspirators\\u2014Rule Stated.\\nThe confessions of a principal are admissible in evidence on the trial of \\u2022 an accomplice or accessory to evidence the commission of a crime by the principal, and when several persons are proved to have combined for the same unlawful purpose, any act done by one of the party in pursuance of the concerted plan with reference io the crime charged is the act of all., and proof of such' act is evidence against one and all the others. Following Cox v. State, supra, and other cases.\\n9. \\u2014Same\\u2014Order of Evidence\\u2014Conspiracy\\u2014Rule Stated\\u2014Co-conspirators.\\nThe rule that the conspiracy must be established before declarations of co-conspirators are admissible against the accused no longer obtains in this State, nor does the order in which evidence to show the conspiracy is admitted affect its admissibility. Following Nelson v. State, 43 Texas Grim. Rep., 563, and other cases. And the declarations of both the conspirators, the one who was not named in the indictment and the one who was, were admissible in evidence. Davidson, Presiding Judge, and Morrow, Judge, assenting qualifiedly.\\n10. \\u2014Same\\u2014Evidence\\u2014Principals\\u2014Accomplice.\\nWhere, defendant was charged as accomplice in the murder of his wife, not being actually present, when the killing took place, and this being alleged in the indictment, it devolved upon the State to prove the guilt of the principals as a part of its case against defendant, and under this rule the declarations of the principals were admissible in evidence. Following Simms v. State, 10 Texas Crim. App., 131, and other cases; besides, there was no objections to such testimony at the time of its introduction, to have such testimony limited to the principals and there was no reversible error.\\n11.\\u2014Same\\u2014Evidence\\u2014Motive\\u2014Co-conspirators\\u2014Circumstantial Evidence.\\nWhere upon trial of murder charging defendant as an accomplice, where the evidence showed that two of the conspirators were eye-witnesses to the killing, one being named in the indictment, it was proper to permit the State to show, if possible, that defendant attempted to destroy their evidence by killing them, and to introduce testimony that sometime after the murder these co-conspirators declared defendant\\u2019s guilty connection with thfe killing, and that shortly thereafter their dead bodies were found with indisputable evidence that they had been murdered.\\n12j\\u2014Same\\u2014Evidence\\u2014Declarations of Third Party\\u2014System\\u2014Other Transactions.\\nUpon trial of murder of defendant as an accomplice, there was no error in admitting evidence to the effect that the defendant and another had tried to induce the witness, some time prior to the marriage of defendant and deceased, to marry a wealthy old woman, obtain her property, thereafter dispose of her and divide her property between them, as this bore on the plan pursued in the instant case.\\n13.\\u2014Same\\u2014Evidence\\u2014Domestic Relations\\u2014Husband and Wife\\u2014Motive.\\nWhere defendant was indicted for the murder of his wife, as an accomplice, there was no error in admitting testimony as to the acts and conversations between defendant and his wife, showing the lack of affection on the part of defendant for his wife, his attitude toward her, both before and after their marriage, his neglect of her, his attentions to other women, and his desire to get possession of her property, to show motive for the killing.\\nId.\\u2014Same\\u2014Witness\\u2014Reputation for Chastity.\\nWhere efforts were made to impeach witnesses for the State by proving their bad reputation for chastity, the court correctly overruled this attempt to attack the credibility of said witnesses.\\n15. \\u2014Same\\u2014Evidence\\u2014Declarations of Co-conspirator\\u2014Rule Stated.\\nWhere it was claimed by the State that the brother of the defendant made himself a party to the conspiracy of killing the witnesses who had killed the wife of the defendant, there was no error in admitting in evidence the acts and declarations of said brother; although he had entered the conspiracy at a latter stage of the same.\\n16. \\u2014Same\\u2014Charge of Court\\u2014Circumstantial Evidence\\u2014Accomplices\\u2014Requested Charges.\\nWhere, upon trial of murder, defendant being charged as an accomplice, the evidence was circumstantial, and the trial court fairly submitted the law thereon, and the law upon accomplices, etc., there was no error in refusing special requested charges on the same subject.\\n17. \\u2014Same-\\u2014Sufficiency of the Evidence\\u2014Accomplice.\\nWhere the defendant was indicted as an accomplice to the murder of his wife and his punishment assessed at ninety-nine years in Ihe penitentiary, and the record on appeal showed that the conviction was sustained under a proper charge of the court, there was no reversible error.\\n18.\\u2014Same\\u2014Rehearing\\u2014Declarations of Principals\\u2014Evidence.\\nWhere it was urged, on motion for rehearing, that this court committed error in holding, as admissible, the statement of a co-conspirator and principal in the offense who had not been named in the indictment, and who was contending not to be a party to the conspiracy to kill the deceased, held, that it is not necessary, in order to make admissible evidence, that one was a co-conspirator to show that he was indicted as such. Following Bass v. State, 59 T\\u00e9xas Grim. Rep., 191, and other cases; besides, the uncontroverted testimony showed that at the time deceased was killed by the principal named in the indictment, the other, who was not named therein, was a few feet distant, and his statement, therefore, made some time after the killing, to the effect that he had hired a man, who was the other principal, to kill the deceased, was admissible in evidence. Davidson, Presiding Judge, and Morrow, Judge, qualifiedly concurring.\\n19\\u2014Same\\u2014Acts and Declarations of Co-conspirators\\u2014Motive.\\nThe co-conspirator who was not named in the indictment, but who was shown to have been a party to the conspiracy bringing about the death of the deceased, and who- was present at the homicide, and whose subsequent declarations against the defendant made his removal most material to the defendant, was a fact admissible in evidence upon the trial of the defendant for murder of his wife, as an accomplice. Davidson, Presiding Judge, and Morrow, Judge, qualifiedly concurring.\\n20. \\u2014Same\\u2014Declarations of Defendant\\u2014Motive.\\nUpon trial of defendant as an accomplice for the murder of his wife, there was no error in introducing the conversation had between the witness on one side, and the defendant and another on the other, some time prior to the marriage of defendant and deceased; the proof further showing that some time during the following year defendant got a divorce from his wife, and a few months thereafter married the deceased, who was an old, wealthy woman; appellant being a young man, and that very soon thereafter he came into possession of large sums of money from deceased, etc.\\n21. \\u2014Same\\u2014Disqualification of Juror\\u2014Opinion of Juror.\\nWhere the juror read about the proceedings of another trial against the defendant for the murder of one of his co-conspirators and had an opinion therefrom, but upon direct examination stated positively that while he had such an opinion it was not such as would influence his action as a juror, and that he could try the case upnn the law and the evidence just as fairly and impartially as he could if he had never heard of it, there was no reversible error.\\n22. \\u2014Same\\u2014Evidence\\u2014Domestic Relations\\u2014Bill of Exceptions\\u2014Presumption.\\nWhere appellant on rehearing again objected to the admission of testimony on the trial as to the domestic relations between defendant and the deceased, but the bill of exceptions disclosed that the testimony was material, and there was nothing to show whether defendant was present or not at the time the statements were made, the presumption must be in favor of the correctness of the ruling of the court, and there was no reversible error.\\n23. \\u2014Same\\u2014Bill of Exceptions\\u2014Practice on Appeal.\\nWhere a blanket exception was made to the testimony of witnesses as to the domestic relations between the defendant and his wife, generally urging that said testimony was prejudicial, etc., such exception will not suffice to bring any matter up for review, it being disclosed by said bill that a great part of the testimony set out therein was material and admissible in evidence.\\n24. \\u2014Same\\u2014Principal Not Named in Indictment\\u2014Declaration\\u2014Rehearing\\u2014 Motive.\\nThe admissibility of the declarations of Havard, the principal who was not named in the indictment, is upheld upon the proposition that his death was brought about by the defendant, and that it was material to the State to show that Havard had made declarations which would furnish a motive for the defendant to destroy him in order to avoid the disclosure by him of defendant\\u2019s connection with the murder of his wife.\\nAppeal from the District Court of Brazos. Tried below before the Honorable H. S. Morehead.\\nAppeal from a eonvietion of murder as an accomplice; penalty, ninety-nine years in the penitentiary.\\nThe opinion states the case.\\nV. B. Hudson, F. J. Duff and C. W. Howth, for appellant.\\nOn question of admitting in evidence the statement of co-conspirator and principal who was not named in the indictment: Wallace v. State, 46 Texas Crim. Rep., 346; Choice v. State, 52 Texas id., 287; Reagan v. State, 49 id., 444; Dungan v. State, 39 id., 117; Dawson v. State, 38 id., 12; Bookser v. State, 26 Texas Crim. App., 596; Ricks v. State, 19 id., 317; Knight v. State, 7 id., 209.\\nOn question of change of venue: Taylor v. State, 197 S. W. Rep., 197.\\nOn question of severance: Terry v. State, 76 S. W. Rep., 928.\\nOn question of direct and circumstantial evidence: Wampler v. State, 28 Texas Crim. App., 353; Kidwell v. State, 35 id., 267; McKinney v. State, 48 id., 402; Tune v. State, 49 id., 448. Perry v. State, 155.S. W. Rep., 263; Strickland v. State, 161 id., 110; Johnson v. State, 162 id., 512; Hunnicutt v. State, 18 Texas Crim. App., 522.\\nOn question of conscientious scruples to inflict penalty of death: Wade v. State, 12 Texas Crim. App., 358; Monk v. State, 27 id., 457.\\nOn question of opinion of juror: Maines v. State, 35 Texas Crim. Rep., 113; Keaton v. State, 40 Texas. Crim. Rep., 145; Gallagher v. State, 40 id., 307.\\nOn question of declarations of third party as to defendant\\u2019s proposition to marry an old woman, etc.: Davis v. State, 143 S. W. Rep., 1161; Gardner v. State, 55 Texas Crim. Rep., 394; Woodworth v. State, 42 id., 204; Maclin v. State, 144 S. W. Rep., 959.\\nOn question of declaration of deceased and others as to domestic relations, etc.: Maclin v. State, 144 S. W. Rep., 959; Walker v. State, 140 id., 455.\\nOn question of hearsay: Wallace v. State, 46 Texas Crim. Rep., 346.\\nOn question of charge of court; on declarations of co-conspirator: Jackson v. State, 90 S. W. Rep., 35.\\nT. B. Hendricks, Assistant Attorney General, for the State.\\nCited cases in opinion.\", \"word_count\": \"9156\", \"char_count\": \"52986\", \"text\": \"LATTIMORE, Judge.\\nThis appellant was convicted of the murder of his wife in the District Court of Brazos County, Texas, and given a punishment of ninety-nine years in the penitentiary. Those of the errors therein which are deemed of sufficient importance to discuss, as well as the evidence in the case, will appear in the opinion.\\nThe case originated in Liberty County, Texas, but was transferred of the court's own motion to the District Court of Brazos County, and when there called for trial, a plea to the jurisdiction was presented and overruled; which constitutes the first error presented. The order changing the venue of the case to Brazos County recites that it was made of the court's own motion, with the consent of the appellant, on account of the great publicity given the ease, and the prejudice existing in Liberty County and each of the counties of that and adjoining districts, against the appellant.\\nBrazos County, to which the case was transferred, was not in the same nor in an adjoining district to Liberty County, which facts form the basis of appellant's plea to the jurisdiction, as stated. Said plea did not controvert the publicity or prejudice stated in the order of the court as reasons for the removal of the case to Liberty County, but did controvert by affidavits and evidence that such order was made with the consent of the appellant. After hearing said plea, and the evidence offered thereon, the court made the following order: \\\"And it further appearing to the Court that because of the notoriety given the evidence in said cause and the publication thereof in the various newspapers circulating in this, and the adjoining districts, the said cause numbered 2858 was heretofore on the Court's own motion and with the consent of the defendant, by order entered on the minutes of this Court on the 5th day of December, 1916, transferred to the District Court of Brazos County, Texas, wherein said cause is now pending.\\nAnd the Judge presiding herein, being satisfied that because of the facts hereinabove stated, to wit: The great publicity given the evidence and facts of this case, a trial alike fair and impartial to the accused and the State cannot be had in this, Liberty County, and because of the great prejudice which exists in this County, as well as in the other counties of this, and the adjoining districts to this 75th Judicial District, he, the said Judge, of his own motion, now here orders that the venue of this case be changed to Brazos County, Texas, it is therefore considered, ordered, adjudged and decreed by the Court that the venue of this cause, be, and it is hereby changed from this, Liberty County, to be tried in the District Court of Brazos County, Texas, the same being one of the Counties in the 20th Judicial District of the State of Texas, and that being the nearest and most convenient County to Liberty County in which a fair and impartial trial of this cause may be had.\\\"\\nWithout going into details in discussing the laws and constitutional provisions involved, we will observe that a trial by a fair and impartial jury is guaranteed by our Constitution, and that each and all of the laws enacted by the Legislature have in view the attainment of the object and purpose of giving to the accused a fair trial before an impartial jury as guaranteed.\\nOur statutes provide substantially that if it be shown in an application for a change of venue or otherwise, that all the counties adjoining that in which the trial is pending, are subject to some valid objection, the case may be removed to such county as the court may think proper. Art. 632, C. C. P. The finding of the court, as outlined in his order changing the venue of his own motion, is presumed to speak the truth, and will not be revised on appeal, unless it be affirmatively shown that appellant was materially injured by such change of venue. (Cox v. State, 8 Crim. App., 283; Frizzell v. State, 30 Crim., App., 42; McCoy v. State, 27 Texas Crim. App., 417; Thurman v. State, 27 Texas Crim. App., 347.) Art. 634, C. C. P., expressly provides that the action of the trial court granting change of venue will not be revised unless the facts showing such objection be stated in a bill of exceptions filed at the time, which was not done in this case.\\nEach of the cases cited by appellant in support of his contention in regard to this matter is decided on a question foreign to this issue and is not in point.\\nAppellant's motion for continuance was properly overrule,\\u2014The fact that the Court of Criminal Appeals had not acted on his application for bail in the instant ease, was not sufficient ground for continuance. Ex parte Streight v. State, 62 Texas Crim. Rep., 458, 138 S. W. R., 752.\\nNor was the absence of one of appellant's counsel sufficient ground for the granting of a continuance. Other and able counsel were present at the beginning of the trial, and the rights of appellant were fully and fairly protected.\\nThe trial court did not err in overruling the application for severance, asking that Lou Sapp, the brother of appellant, be first tried. The cases were pending in separate counties, and in different jurisdictions, and to have granted the severance asked for would have amounted to a continuance of the instant ease, which is expressly forbidden by our statutes. Art. 727, C. C. P.; Price v. State, 68 Texas Crim. Rep., 556, 152 S. W. R., 640; Locklin v. State, 75 S. W. R., 305. The case cited as authority by appellant was one in which both eases were pending in the same jurisdiction, and is otherwise not in point. All the authorities seem to hold that no error was committed in allowing the State to challenge jurors for cause who stated on their voir \\u00bftire that they had conscientious scruples against inflicting the death penalty as punishment in cases depending on circumstantial evidence. Shafer v. State, 7 Texas Crim. App., 239; Little v. State, 39 Texas Crim. Rep., 654, 48 S. W. R., 984; Grant v. State, 67 Texas Crim. Rep., 155, 148 S. W. R., 760; Clanton v. State, 13 Texas Crim. App., 152.\\nThat there was an eyewitness to the actual homicide would not necessarily remove the case from the domain of circumstantial evidence. Appellant was not present at the time of the killing and his guilty connection therewith was more an issue in the case than the fact of death. Nor would the statement of the man who actually fired the fatal shot, to the effect that the appellant hired him so to do, take the case out of the rule of such evidence. Mr. Branch, in his Criminal Laws of Texas, p. 106, cites authorities supporting this position. See also Block v. State, 81 Texas Crim. Rep., 1, 193 S. W. R., 303.\\nObjection to a particular juror, who stated that he had formed an opinion, is disclosed here by some of appellant's bills of exception. On similar complaints, it has been repeatedly held by this Court that such juror is competent if his opinion be formed by mere reading, etc., or if it appears to the court that such an opinion will not influence him in arriving at a verdict in the case. See Vernon's C. C. P., p. 377, and authorities cited.\\nWhat we have said above disposes of appellant's contentions with regard to matters preliminary to the introduction of evidence.\\nMrs. Ellen Sapp, the wife of appellant, was shot and killed on November 7, 1914, the shot being from a gun in the hands of one Dick Watts, and the same was claimed at the time to be accidental. The occurrence took place at a hunting camp, and the persons present were Mrs. Sapp (deceased), Mrs. Taylor, Dick Watts, Frank Havard, and H. Sowell. Appellant was not present, but was not far away, and arrived on the scene a few minutes after the fatal shot. It was shown that of the persons present at the time of the death of Mrs. Sapp, Sowell was the only one living at the time of the trial. Nothing appears as to the cause of the death of Mrs. Taylor, but the State claimed on the trial of the case that both Watts and Havard had been murdered by appellant and evidence tending to so show was admitted against the appellant, as was likewise evidence tending to show that appellant had been searching for the witness Sowell while he, appellant, was armed.\\nThe indictment and conviction of appellant, was as an accomplice to the murder of his wife, it being alleged in the indictment that Dick Watts was the principal offender. No mention was made in the indictment of Frank Havard. The State's theory was that a conspiracy existed between appellant and others, having for its principal object, the getting of the money and property of the deceased; that Watts and Havard were parties to the enterprise, their participation being mainly for the purpose of bringing about the death of Mrs. Sapp after she had given to her husband large sums of money and had made a will in his favor. The killing of deceas\\u00e9d being merely one of the steps necessary to obtain the property, in this opinion it will be taken for granted that if there was such a conspiracy having such an object, it had not been consummated at the time of the homicide. The will of deceased making appellant the principal beneficiary was filed by appellant for probate shortly after the death of his wife, and was contested by her relatives. On this trial statements made by both Watts and Havard, subsequent to the death of Mrs. Sapp, were admitted in evidence. The statement of Watts was in substance that he killed Mrs. Sapp, and was hired so to do by appellant; that of Havard was in substance that appellant tried to get him to kill Mrs. Sapp; that he turned the job down, but got a man, to-wit, Dick Watts, for the appellant. As stated above, in view of the fact that the money and property had not yet been obtained by the appellant under the law, we will not take time to discuss the proposition, but consider it as settled by the holdings of this Court that the declarations of Havard and Watts, if in fact they were co-conspirators with appellant, were made during the pendency of the conspiracy, the main object of which had not been consummated at the time such statements were made.\\nIt is fundamental that if Watts killed Mrs. Sapp in violation of law, he would be a principal offender, and likewise, if Havard procured Watts to do this killing, for Sapp, and was personally present when the killing took place, he too, under our law, would be a principal therein. See Art. 78, Vernon's Penal Code. We think the evidence as to these statements of Watts and Havard were admissible for several reasons.\\nIf there was a conspiracy between the parties, it is obvious that the main object was to obtain the property of deceased, which object was only partially obtained by her death, there remaining, as stated above, yet to be accomplished by said conspiracy, the probating of her will, and the reduction to actual possession and ownership of her property, and in such case, so long as the parties to a conspiracy are still moving toward the accomplishment of any of its objects, the acts and declarations of one in pursuance of the common design, whether made in the presence and hearing of the others or not, becomes admissible against each of the others, even though tried separately. Gracy v. State, 57 Texas Crim. Rep., 68; Serrato v. State. 74 Texas Crim. Rep., 413, 171 S. W. R., 1133; O'Neal v. State, 14 Texas Crim. App., 582; Long v. State, 55 Texas Crim. Rep., 55; Kennedy v. State, 19 Texas Crim. App., 618; Nunez v. State, 70 Texas Crim. Rep., 481; Zweig v. State, 74 Texas Crim. Rep., 306, 171 S. W. R., 747; Cox v. State, 8 Texas Crim. App., 303|. We regard the opinion of Judge White, in Cox's case, supra, one of the ablest and best considered among our decisions. In that case a witness testified that one claimed to be a co-conspirator by the State, out of the presence and hearing of defendant on trial, had said to witness:\\\"\\n\\\"Going back to Mr. Augustine's, Meador told me that they were going to kill the parties,\\u2014Humphreys, Theodore Brazell, and the two Ainsworth boys. He told me they were going on Monday night to do it. He told me this Friday evening. He told me the next Monday they were going to do the killing.\\\" To the question \\\"What was the expression of Meador?\\\" witness replied, \\\"He said 'We are going to kill them.' He said 'We are going to do it.' He did not say who was going with him. Meador told me that Augustine was going with him. He told me he was right in for it.\\\" Witness is satisfied that Cox did not hear this conversation. In another portion of his testimony the witness says that Meador told him that Cox was going with him to do the killing. This is in substance a resume of the principal points in the evidence objected to.\\\"\\nDiscussing objections to the admission of this evidence, this Court quotes from Mr. Greenleaf, as follows:\\n\\\"The connection of the individuals in the unlawful enterprise being thus shown, every act and declaration of each member of the confederacy in pursuance of the original concerted plan and with reference to the common object is, in contemplation of law, the act and declaration of them all, and is therefore original evidence against each of them. It makes no difference at what time any one entered into the conspiracy. Every one who does enter into a common purpose or design is generally deemed in law a party to every act which has before been done by the others, and to every act which may afterwards be done by any of the others, in furtherance of such common design. . The court also quotes in said opinion further from other decisions as follows:\\n\\\"In The People v. Brotherton, 47 Cal., 388, it was held: 'Where two are jointly indicted, the prosecution may on the trial prove the declarations and acts of one done in the absence of the other, before proving the conspiracy between the defendants, provided proof of such conspiracy is afterwards made.\\\"\\n\\\"In the State v. Winner, 17 Kan., 298, it was held that \\\"ordinarily, when the acts and declarations of one co-conspirator are offered in evidence against another co-conspirator, the conspiracy itself should first be established prima facie, and to the satisfaction of the judge of the court trying the cause; but this cannot always be required. It cannot well be required where the proof depends upon a vast amount of circumstantial evidence\\u2014a vast number of isolated and independent facts. And in any case where such acts and declarations are introduced in evidence, and the whole of the evidence introduced on the trial, taken together, shows that such a conspiracy actually exists, it will be considered immaterial whether the conspiracy was established before or after the introduction of such acts and declarations.\\\"\\n\\\"In the People v. Geiger, 49 Cal., 643, it was held that 'if two are jointly indicted for murder, and are tried separately, and on the trial of one there is testimony tending to show a conspiracy between them, the declarations of the one not on trial, made before the killing, may be received in evidence. And the conspiracy to commit a crime being proved on the separate trial of one of the conspirators, the jury are to give the same weight to the.declarations of the co-conspirator not on trial as they would give them if made by the one on trial. See also People v. Cotto, 49 Cal., 166.\\\"\\nAfter making these citations and others, this Court states its conclusion, as follows:\\n\\\"To us it seems too plain to admit of argument, that, when two or more are found acting together with an unlawful intent in the commission of an offense, the common design and acting together makes them ipso facto conspirators\\u2014endows them as a body with the attribute of individuality\\u2014merges the conspiracy to do the act in the act itself; and that the previous acts and declarations of each or any such principal offenders in pursuance of the agreed plan, and tending to throw light upon it or the motive or intent with which it was committed, is and should be received as legal and admissible evidence against each and all, whether indicted, prosecuted, and tried jointly or separately. 1 Bishop's Crim. Law, sec. 432; Kelley v. The people, 55 N. Y., 566; 2 Whart. on Ev., 1205; 47 Ind., 568.\\\"\\nIn the Kennedy case, supra, this Court held as follows:\\n\\\"The fifteenth bill of exceptions was reserved by defendant to the court's permitting Jack Williams to testify, over the objection of defendant, to certain statements made to the witness by Iven Thompson (a codefendant, osme days before the killing, relative to the intentions of Thompson and appellant Kennedy to kill Edmund Hill\\u2014 appellant Kennedy not being present when Thompson made these statements to the witness. The evidence was admissible. The witness stated that Thompson said \\\"that he and Tom Kennedy were going to kill Hill the first chance they got, and that they were going for him at any time.\\\" A conspiracy between the parties may not have been conclusively established on the trial, and this testimony tended to establish its existence at the time the statements and declarations were made.\\\"\\nMr. Wigmore on Evidence, page 1291, Sec. 1079, lays down the rule as follows:\\n\\\"A conspiracy makes each conspirator liable under the criminal laws for the act of every other conspirator done in pursuance of the conspiracy. Consequently by the principle already exemplified in other relations (Ante Sec. 1077) the admissions of a co-conspirator may be used to affect the proof against the others on the same condition as his acts when used to create other legal liability.\\\"\\nIn the Section 1077 referred to, Mr. Wigmore states \\\"that the confession of a principal is admissible on the trial of an accessory \\\"to evidence the commission of the crime by the principal.\\\"\\nMr. Abbot on Evidence, p. 190, states the rule as follows: The familiar rule that when several persons are engaged together in the furtherance of an illegal design, the actions and declarations of one conspirator, made together in pursuance of a concerted plan, and with reference to the common object, are competent against the others though not made in their presence,\\\" and again the same author, on page 621, says: \\\"slight evidence of concert or collusion between the parties to an illegal transaction admits evidence of the acts and declarations of one against the others under the rule already stated on page 190.\\\"\\nMr. Wharton in his valuable work on Criminal Evidence, p. 1431. lays down the following proposition: \\\"When several person are proved to have combined for the same unlawful purpose, any act done by one of the party, in pursuance of the concerted plan with reference to the crime charged, is the act of all; proof of such act is evidence against one and all the others.\\\"\\nThe rule that the conspiracy must be established before declarations of co-conspirators are admissible against appellant, no longer obtains in this State, nor does the order in which evidence to show the conspiracy is admitted, affect its admissibility. Nelson v. State, 43 Texas Crim. Rep., 553; Barber v. State, 69 S. W. Rep., 515; Segrest v. State, 57 S. W. Rep., 845.\\nThe declarations of both Havard and Watts were in pursuance of a design common to them all, and were made while the objects of the conspiracy were not yet accomplished.\\nThere is another rule, by reference to which this evidence would be held admissible. Appellant was charged as an accomplice, not being actually present when the killing took place. This being the form of the allegation in the indictment, it devolved upon the State to prove the guilt of the principal or principals as a part of its case against appellant. Sims v. State, 10 Texas Crim. App., 131; Bluman v. State, 33 Texas Crim. App., 43; Collins v. State, 24 Texas App., 141; Millner v. State, 75 Texas Crim. Rep., 22, 169 S. W. R., 899.\\nThat Watts shot and killed Mrs. Sapp was not denied. That Havard was present at the time of such killing was also uncontroverted. The confessions of a principal in such a case are held admissible to prove his guilt. Crook v. State, 27 Texas Crim. App., 239; Hamlin v. State, 39 Texas Crim. Rep., 604; Thomas v. State, 43 Texas Crim. Rep., 23.\\nSuch evidence being admissible for the purpose stated, it becomes the duty of appellant, under our practice, to object to its use as against him, if he so desires, and such objection must be properly raised and presented to the trial court and brought here by exception and bill in order to entitle it to our consideration. There was no such objection to this evidence. It is not claimed or admitted that such evidence could be used to incriminate the principals only, nor was any charge asked limiting such evidence to any such purpose, all of which must be done by appellant if he wishes such evidence limited for any purpose whatever.\\nAgain: Watts and Harvard were eyewitnesses to the killing of Mrs. Sapp, and if they were or became witnesses against appellant for his alleged complicity in such killing, we think it proper to show, if possible, that appellant attempted to destroy their evidence and suppress their testimony by killing them.\\nIt will be observed from the record that from the time of the killing of deceased on November 7, up to about Christmas of that year, both Watts and Havard appeared to be on terms of friendly intimacy with appellant; that about the latter time, Watts began to talk to different parties of his own and appellant's guilty connection with said killing; and early in January he disappeared. The circumstances surrounding his disappearance were offered in \\u00e9vidence on this trial by the State, as showing that appellant and his brother were the guilty instruments in bringing about Watts' death. It also appears that Havard began to talk along the same line in January, and shortly thereafter he disappeared, as the State claims, as the result of the acts of the same agent or agents. Both these men's bodies- were found buried in the big thicket, with indisputable evidence that they had been murdered.\\nWe are inclined to believe that the State might prove hostile declarations toward appellant made by Havard and Watts under these circumstances. The case was one of circumstantial evidence. The deaths of said witnesses were offered as circumstances against the accused, and as tending to show the motive and reason for such killing might not the declarations of such witnesses, made shortly before their deaths, be admissible? That one is merely a witness against one accused of crime might supply a remote reason or a mighty motive for the killing of said witness, according as his testimony would hurt little or much; and as supplying a cogent reason for the removal of such evidence by the death of said witness, we think, in a proper case, the declarations of the deceased witness showing what his evidence would be, is provable against the accused. Watts and Havard were present at the killing, it is true, but for nearly two months thereafter their accounts of the same were, that it was accidental, which was favorable to the accused, and during these two months they remained unharmed and unmolested. They change their attitude, and each makes to several persons statements extremely damaging to appellant, to the effect that the killing was intentional, and that appellant was the prime mover in the whole matter. Almost immediately both of said parties are killed, slain, and their bodies are found buried near each other, under such circumstances as to make it reasonably appear that they were killed by the same party. What was the motive or reason for such killing? That they were merely witnesses to the killing It might be so asserted. Up to the time they began to talk, was there any reason for supposing that their witnessing was against appellant ? Apparently not. But from the time their said statements were made their attitude became wholly different, and there arose apparent necessity for the suppression of their testimony and the removal of such witnesses to accomplish said purpose. It seems to us that in such case the statements of said parties were strong circumstances bearing upon the motive and purpose of the person by whom they were killed.\\nWhat we have said, disposes of the objections to the evidence of statements made by Watts and Havard, as testified to by a number of witnesses, and constitutes, in our opinion, a decision of the main point in this case.\\nThe evidence of the witness Joe Moore, to the effect that appellant and one Van Auken tried to induce him some time prior to the marriage of appellant and deceased, to marry a wealthy old woman, obtain her property, and thereafter dispose of her in some way and divide her property between said Moore, Van Auken and appellant, was admissible for what it was worth in the minds of the jury, as evidence bearing on the question of the conspiracy.\\nThe testimony of the friends\\u2014intimates of both appellant and deceased\\u2014as to acts and conversations showing the lack of affection on the part of appellant for his wife, his attitude toward her, both before and after their marriage, his neglect of her, his attentions to other women, his desire to get possession of her property\\u2014were all admissible as circumstances throwing light on the real purpose or motive of appellant throughout the entire affair. The testimony is too long to even substantially state the same, being presented here in a statement of facts of over eight hundred pages; but we have carefully read it all, and considered it in the light of appellant's numerous objections thereto. Most of the objections we do not deem worth mentioning, as they are repeated in lengthy bills of exception, many of them without citations of authorities, or reasons which appeal at all to us as being worthy of inserting in this opinion.\\nEffort was made to impeach certain witnesses for the State by proving their bad reputation for chastity. The court did not err in refusing to permit the appellant to so attack the credibility of said witnesses.\\nThere was objection made to proof of acts and declarations of Lou Sapp,' the brother of appellant, at the time the body of Dick Watts was discovered, and publication made of the facts attendant thereon, in newspapers. It was claimed by the State that Lou Sapp made himself a party to the conspiracy by assisting appellant in accomplishing the deaths of Watts and Havard. If this be true, under our decisions, one who enters a conspiracy at any stage of its progress, adopts all that has gone before, and makes himself a party thereto, and to what comes after, and his acts and declarations are admissible in evidence.\\nMore than thirty special charges were asked by appellant, seven of which were given. We have examined the various refused charges, in the light of the facts and the charge as given, and do not believe there was any error in refusing any and all of them. The trial court fairly submitted the law of circumstantial evidence; told the jury substantially that Watts and Havard were accomplices, and gave the law governing such eases. He told the jury that they could not consider the statements of Havard and Watts against the appellant unless there was a conspiracy between the parties to kill the deceased; that there could be no guilt of appellant if Mrs. Sapp was accidentally killed, etc. We think the law was fairly presented to the jury, and the special charges correctly refused.\\nWe have gone fully through the lengthy and exhaustive brief of appellant, setting up in more than one hundred assignments the matters contained in his various bills of exception. We think it is sufficient to say that we do' not find any one of the matters complained of to show reversible error, and the judgment of the trial court is affirmed.\\nAffirmed,\"}"
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diff --git a/tex/5153122.json b/tex/5153122.json
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+"{\"id\": \"5153122\", \"name\": \"Carter Lindsay v. The State\", \"name_abbreviation\": \"Lindsay v. State\", \"decision_date\": \"1928-04-25\", \"docket_number\": \"No. 11287\", \"first_page\": \"321\", \"last_page\": \"324\", \"citations\": \"110 Tex. Crim. 321\", \"volume\": \"110\", \"reporter\": \"Texas Criminal Reports\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T17:05:04.857708+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Carter Lindsay v. The State.\", \"head_matter\": \"Carter Lindsay v. The State.\\nNo. 11287.\\nDelivered April 25, 1928.\\nRehearing denied June 23, 1928.\\nThe opinion states the case. .\\nL. D. Griffin of Plainview, for appellant.\\nA, A. Dawson of Canton, State\\u2019s Attorney, for the State.\", \"word_count\": \"971\", \"char_count\": \"5714\", \"text\": \"CHRISTIAN, Judge.\\nAppellant was charged by indictment with having information that premises which he owned were being used and kept as a bawdy house. He was convicted and his punishment assessed at a fine of two hundred dollars and confinement in the county jail for 20 days.\\nAppellant admitted the ownership of the house in question. He testified that he had leased the house to Nell Williams and that he had no knowledge that said place had been conducted as a bawdy house. Witnesses for the state testified to acts of sexual intercourse with female inmates of the house. State's witnesses further testified that said house bore the general reputation of being a bawdy house. Appellant maintained a room in the house which he at times occupied. He was present on an occasion when a difficulty arose between the proprietress and some men who had been drinking and aided in evicting one of the men from the house. Complaint charging Nell Williams with operating a bawdy house had been filed and appellant signed her appearance bond as surety.\\nWe deem the evidence sufficient to warrant the conclusion that appellant had knowledge that the place was being conducted as a bawdy house.\\nBill of exception Number 2 deals with the action of the court in permitting a witness for the state to testify that while visiting the house appellant came into his room at the request of Nell Williams for the purpose of removing him from the house, and that during the difficulty which ensued appellant hit at him with a six-shooter. Appellant's knowledge of the character of the house was a controverted issue. The testimony objected to was relevant and material as bearing on such issue.\\nWe are unable to agree with appellant that the court erred in permitting the state to prove that he (appellant) signed the appearance bond of Nell Williams. As proprietess of the house Nell Williams had been charged with operating a bawdy house. Appellant's act in signing the bond was admissible as a circumstance tending to show his knowledge of the character of the house. Key v. State, 160 S. W. 354.\\nAppellant objected to the testimony of one of the state's witnesses who testified to the general reputation of the house in question, his ground of objection being that it was not shown that the witness knew what constituted a bawdy house. There are no facts in the bill showing that the witness was not in possession of sufficient knowledge to afford a predicate for his testimony.\\nAppellant admits in his brief that the matter complained of in bill of exception Number 5 occurred on the trial of Nell Williams and not on the instant trial. We have therefore not undertaken to discuss the question presented by said bill.\\nThe record discloses that there were buzz bells in several rooms of the building. The county attorney stated in argument to the jury that there was a buzz bell in every room for the purpose of \\\"putting the officers off, to keep them from finding anything out.\\\" Appellant objected to the remarks of the county attorney and requested the court to instruct the jury to disregard them for the reason that there was no evidence showing that there were buzz bells in every room in the house. The court refused to comply with appellant's request. The county attorney may have in his zeal exaggerated the testimony. However, we are unable to agree with appellant that his remarks would warrant a reversal of the case. In the light of the record we are of the opinion that they were harmless.\\nWe have only undertaken to discuss the matters presented by appellant in oral argument. However, we have examined all of appellant's contentions and fail to find reversible error.\\nThe judgment is affirmed.\\nAffirmed.\\nIjhe foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.\\nON MOTION FOR REHEARING.\\nLATTIMORE, Judge.\\nWe think sufficient justification set up for the failure to file this motion within the fifteen days allowed by statute.\\nThe matters complained of were passed upon by us in our original opinion. The charge against appellant was running a disorderly house. The indictment herein was returned February 23, 1927. We think it not erroneous for the court to allow in evidence two bail bonds made in January by the woman who had charge of the house in question, upon which bail bonds this appellant appeared as surety. The State had the right upon the trial of this case to take into consideration any facts offered prior to the return of the indictment which legitimately showed appellant's knowledge of or interest in the running of said bawdy house upon his premises.\\nThe bill of exceptions complaining of the introduction of testimony given by the witness Sturdivant wholly fails to show the surrounding facts shedding light upon the materiality of the testimony complained of. An examination of the statement of facts shows that the testimony complained of was material. Sturdivant was an officer and found in the house and upon the premises, claimed to be. run as a bawdy house, a drunken man whose actions and conduct were pertinent. - The testimony showed that appellant was on and around the premises either' immediately at that time or shortly thereafter. We find no error in the charges complained of. The learried trial judge fully protected the rights of appellant in the charge given.\\nBeing unable to agree with the contentions made, the motion for rehearing is overruled.\\nOverruled.\"}"
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diff --git a/tex/5272367.json b/tex/5272367.json
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+"{\"id\": \"5272367\", \"name\": \"Ex Parte Roosevelt Patterson\", \"name_abbreviation\": \"Ex parte Patterson\", \"decision_date\": \"1939-10-25\", \"docket_number\": \"No. 20713\", \"first_page\": \"504\", \"last_page\": \"504\", \"citations\": \"137 Tex. Crim. 504\", \"volume\": \"137\", \"reporter\": \"Texas Criminal Reports\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:38:07.954578+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ex Parte Roosevelt Patterson.\", \"head_matter\": \"Ex Parte Roosevelt Patterson.\\nNo. 20713.\\nDelivered October 25, 1939.\\nThe opinion states the case.\\nGrady Sturgeon, of Paris, for appellant.\\nLloyd W. Davidson, State\\u2019s Attorney, of Austin, for the State.\", \"word_count\": \"104\", \"char_count\": \"626\", \"text\": \"KRUEGER, Judge.\\nThe question presented by this record is identical with that presented by the case of Ex Parte Gussie Ferguson, No. 20,714, (page 494 of this volume) this day decided by us. For the reasons assigned by the Court in .that opinion, the relator is ordered discharged.\\nThe foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.\"}"
\ No newline at end of file
diff --git a/tex/618914.json b/tex/618914.json
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+"{\"id\": \"618914\", \"name\": \"S. B. Hudson v. T. H. Smith et al.\", \"name_abbreviation\": \"Hudson v. Smith\", \"decision_date\": \"1910-12-21\", \"docket_number\": \"\", \"first_page\": \"412\", \"last_page\": \"416\", \"citations\": \"63 Tex. Civ. App. 412\", \"volume\": \"63\", \"reporter\": \"Texas Civil Appeals Reports\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T00:21:35.662177+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"S. B. Hudson v. T. H. Smith et al.\", \"head_matter\": \"S. B. Hudson v. T. H. Smith et al.\\nDecided December 21, 1910.\\nInjunction\\u2014Judgment of Justice Court.\\nWhen a Justice Court has jurisdiction of the subject matter of the litigation and of the person of the defendant, its action, however erroneous in overruling a plea of privilege by the defendant, will not render its judgment void; and a District Court would have no jurisdiction to interfere by injunction with the execution of the judgment; the fact that the amount in controversy was less than $20 and the defendant had no appeal from an unjust judgment would not alter the case.\\nAppeal from the District Court of Terrell County. Tried below before Hon. W. C. Douglas.\\nJ. B. Ross and A. T. Folsom, for appellant.\\nE. B. Ward, for appellee.\", \"word_count\": \"2113\", \"char_count\": \"12025\", \"text\": \"NEILL, Associate Justice.\\nThis is an appeal from a decree of the District Court dissolving a temporary writ of injunction procured by the appellant Hudson against appellees, T. H. and W. B. Smith, partners under the firm name of Smith & Son, G. W. Robinson, justice of the peace of precinct No. 2 of Uvalde County, and J. C. Bean, sheriff of Terrell County, to restrain them from enforcing and collecting a judgment rendered in said justice's precinct in favor of Smith & Son against Hudson for the sum of $16, upon which execution was placed in the hands of J, C. Bean as sheriff of Terrell \\u2022 County and levied upon a talking machine and records for its use, the property of defendant in the execution, of the value of $47.50. Judgment was also asked that said judgment be declared a nullity.\\nA general demurrer was sustained to plaintiffs' bill, and a decree entered dissolving the injunction and denying him the relief sought.\\nThe substance of plaintiffs' allegations in their bill is: That on February 19, 1908, Smith & Son sued plaintiff and the Sanderson Drug Co., before 6. W. Bobertson in the Justice Court of precinct Ho. 2 of Hvalde County for $16 alleged to be due them for wood alleged to have been delivered by them to plaintiff and the Sanderson Drug Company; that plaintiff is now, and was at the time the suit was brought, the sole owner of said Drug Company and doing business under 'its name in Sanderson, which is precinct Ho. 1, Terrell County, where he then and ever since has resided and has had his domicile and that plaintiff made no agreement, nor executed any written contract to be performed by him in Uvalde County, nor did the alleged cause of action, upon which said judgment was rendered, accrue there.\\nThat when said suit was called for trial, the plaintiff herein, at his earliest opportunity and before making any announcement therein, presented his plea of privilege to be sued in the county of his residence, which plea alleged, in substance, that he was not at the time the suit was instituted, nor at the time of the service of process, nor at the time of filing the plea, a resident of Uvalde County, but was at all , times before mentioned a resident of precinct Ho. 1 of Terrell County; and that the alleged cause of action did not accrue in Uvalde County and that he did not execute any contract in writing to be performed in said county connected with the purchase of said wood; and that none of the exceptions to exclusive venue in the county of his residence mentioned in articles 1194 and 1585 of the Bevised Statutes existed in said case, plaintiff herein asking in said plea the court in which said suit was pending to transfer it to the Justice Court of precinct Ho. 1 of Terrell County for trial; and that said plea was signed and duly sworn to by him; that plaintiff insisted before said court on his plea of privilege, and introduced evidence in support thereof, proving all the facts alleged therein; but that the court overruled the same, tried the case and rendered judgment against him, on April 7, 1908, for the sum of $16; that within a seasonable time after the judgment was rendered, plaintiff filed and presented to the court his motion for a new trial, which was overruled.\\nThat on March 19, 1909, plaintiffs in said case (J. M. Smith '& Son) caused an execution to be issued on said judgment, directed to and placed in the hands of the sheriff of Terrell County (J. C. Bean), who on April 14 levied the same on a certain Victor talking machine and fifty records used thereon, valued by the sheriff at $47.50, the property of plaintiffs, and advertised said property for sale; that said execution has (not) the certificate of the county clerk of Uvalde attached thereto, showing that G. W. Bobinson, who issued the same, is an acting justice of the peace of said county; nor is there any certified copy of the costs taxed against defendants in execution attached thereto, nor does the execution show the style and number of the cause in which it was issued.\\nThe plaintiff is not now, nor when said suit was instituted in the Justice Court, justly indebted to J. ML Smith & Son in any sum of money whatsoever; that their claim upon which said judgment was rendered had been fully paid and satisfied before the suit was brought.\\nThat if defendant, J. C. Bean, is permitted to sell the property levied upon by virtue of said execution, plaintiff will be unjustly deprived of the value of the same and the benefits and profits of the same to his business, the value being $50 and the benefits and profits of same to plaintiff's business $25; that on April 27, 1908, defendants Smith & Son, knowing said judgment was invalid, caused an abstract thereof to be made, filed and recorded in the office of the county clerk of Terrell County, in which county plaintiff resides and is engaged in the drug business and owns considerable property,\\\" both real and personal, for the purpose of harassing plaintiff, injuring his business by casting the shadow of a lien upon his property, to his damage in the sum of .$100.\\nThat plaintiff has no adequate remedy at law to prevent the sale of the property levied upon, nor prevent the enforcement of said judgment, which is void by reason of the fact that the Justice Court wherein it was rendered had no jurisdiction of the person of this plaintiff as defendant in said suit.\\nPlaintiff's bill closes with a prayer for a writ of injunction against all the defendants restraining them from further proceedings under said judgment and execution; that defendant J. C. Bean, as sheriff, be required to return to the District Court of Terrell County,- in which this suit is brought, the execution under which the levy was made, and that the same be filed by the clerk among the papers in this case; that defendant G. W. Bobinson, justice of the peace of precinct No. 2 of Uvalde County, be required to transmit all original papers in said cause No. 194, entitled J. M. Smith & Son v. W. B. Hudson and Sanderson Drug Co., on file in his court, together with a transcript of all orders, judgments and entries made in said cause, to the clerk of the District Court of Terrell County, to be by him filed among the papers in this case; that upon final hearing that the judgment of said Justice Court be annulled and set aside, and that no further executions be issued thereon, and that the injunction be perpetuated; that the record of the abstract of said judgment, alleged in plaintiff's petition, be canceled and .declared null and void; that plaintiff have judgment against defendants J. C. Bean and T. H. and W. Y. Smith jointly and severally for the sum of $75 actual damages caused by filing and recording the abstract of said judgment, for costs of suit, and general relief in law and equity.\\nHad the whole relief thus prayed for been granted, it would have been wholesome, indeed, to plaintiff, though somewhat harassing to defend-, ants. Plaintiff would have jingled one hundred and seventy-five dollars in his pocket, obtained from defendants by a legerdemain that would have palsied the hand of equity. The \\\"talking machine\\\" would have been released to catch the refrain of jingling dollars, would have sung the praise of the judge as though another Daniel had come to judgment, to the beauty and chivalry of Sanderson while gathered 'round the soda font in plaintiff's drug store drinking foaming, bubbling, sparkling. waters, and all would have gone merry as a marriage bell, while the sheriff paid the costs.\\nBut the action of the District Court in sustaining a demurrer left only to the plaintiff these sad words, \\\"It might have been\\\"; to Smith & Son, their judgment intact; Bean with the execution in his hand, and Justice Bobinson with the papers of the case in his office. Was this action on the part of the court right, was it just, was it equitable ?\\nThis question can not be determined by principles of ethics as conceived by scientists, but by principles of law as written, and equity as expounded by the courts. Neither the Constitution nor the law gives the right of appeal from judgments of the Justice Courts when the amount in controversy is not more than twenty dollars exclusive of costs.\\nAn appeal is not a matter of right, but the right is conferred by the Constitution or statute. In the absence of such grant the right does not exist.. A judgment from which there can be no appeal is conclusive between the parties, unless absolutely void.\\nThe amount in controversy in the case wherein the judgment is sought to be enjoined, was less than twenty dollars, and therefore within the exclusive jurisdiction of the court which rendered it, from which no appeal could be taken. The Justice Court had jurisdiction of the subject matter of the litigation and the person of the defendant (plaintiff herein), for he appeared and answered in the case, filing his plea of privilege which was acted upon by the court. Whether the facts alleged in said plea were true, was a question to be determined by the court upon hearing the evidence upon the issue. Justice Bobinson may have erred in overruling the plea of privilege. Whether he did or not, is beyond the province of any other court to determine.\\nBut, let it be conceded that he did so err, and should have sustained the plea of privilege; this did not render the judgment against Hudson absolutely void. It was simply an error which, in a case where the amount in controversy gave the County Court appellate jurisdiction, could have been corrected on appeal to the County Court, and which would have been final and conclusive if no appeal were taken. But here, no appeal from the judgment sought to be enjoined was permitted by law, and the judgment became- as conclusive, after the overruling the motion for a new trial, as a judgment from which an appeal could be prosecuted would be if no appeal were taken from it.\\nCourts of equity will not interfere with judgments at law upon the ground that the judgment was erroneously rendered, but only upon the ground that its enforcement would be contrary to equity and good conscience, as evidenced by facts of which the aggrieved party could not avail himself as a defense at law. High on Injunctions, sec. 118. Hudson availed himself of every defense in the Justice Court that he had to 'Smith & Son's action. Though injustice may have been done him in rendering the judgment, that is not sufficient to entitle him to the relief he seeks in this case. High on Injunctions, sec. 113.\\nWhat can not be done directly under the law, equity will not interfere with by doing the things indirectly contrary to the law. In this case the plaintiff seeks by his bill in equity to accomplish by injunction what should have been done by an appeal in a case where an appeal would lie; and, as an appeal could not be prosecuted in his case, he seeks to have substituted an injunction for an appeal, and thereby accomplish indirectly what he could not do directly. The hand of equity can not be extended to correct an error in the procedure of another court to judgment, nor annul the judgment because of such error, unless the judgment be absolutely void.\\nThe court did not err in sustaining the demurrer to plaintiff's bill, and the judgment is affirmed.\\nAffirmed.\\nWrit of error refused.\"}"
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diff --git a/tex/6795592.json b/tex/6795592.json
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+"{\"id\": \"6795592\", \"name\": \"Joshua LONDON, Appellant v. The STATE of Texas\", \"name_abbreviation\": \"London v. State\", \"decision_date\": \"2016-05-18\", \"docket_number\": \"NO. PD-0480-15\", \"first_page\": \"503\", \"last_page\": \"510\", \"citations\": \"490 S.W.3d 503\", \"volume\": \"490\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T23:16:25.069054+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Joshua LONDON, Appellant v. The STATE of Texas\", \"head_matter\": \"Joshua LONDON, Appellant v. The STATE of Texas\\nNO. PD-0480-15\\nCourt of Criminal Appeals of Texas.\\nDelivered: May 18, 2016\\nJani Maselli Wood, Harris County Public Defender, Houston, TX, for Appellant.\\nEric Kugler, Assistant District Attorney, Houston, TX, Lisa C. McMinn, State\\u2019s Attorney, Austin, for the State.\", \"word_count\": \"3002\", \"char_count\": \"18571\", \"text\": \"Newell, J.,\\ndelivered the opinion of the unanimous Court.\\nRather than challenge the constitutionality of the trial court's imposition of court costs through a hearing pursuant to Article 103.008 or a separate civil lawsuit, Appellant sought to raise, on direct appeal, an as-applied challenge to two provisions in Article 102.011 that impose mandatory court costs upon conviction. The court of appeals, relying upon our decision in Curry v. State, held that Appellant failed to preserve error on this claim. We granted review to determine whether Appellant could raise his as-applied challenge for the first time on appeal, and whether a formal bill of exceptions was necessary to provide a sufficient record for the court of appeals to properly evaluate the claim on direct appeal.\\nWithout considering the merits of the underlying claim, we hold that Appellant was not required to raise his as-applied challenge in the trial court because his first opportunity to do so was on direct appeal. We also hold that Appellant's as-applied challenge can be evaluated upon the record presented. Consequently, we reverse and remand for the court of appeals to consider the merits of Appellant's as-applied challenge.\\nBackground\\nThe facts in this case are fairly discrete and undisputed. Two days after London's arrest for possession of a controlled substance, the trial court found him indigent and appointed counsel to represent him. London was convicted of possession of cocaine after pleading guilty without an agreed recommendation as to punishment. On May 3, 2013, the trial court entered a judgment sentencing Appellant to 25 years in prison. The trial court included in the judgment an order to pay $329 in court costs. The judgment provided only the $329 amount and no break down of how those costs were calculated.\\nAppellant filed a pro se notice of appeal twelve days after his conviction. Twelve days after that, the district clerk filed the statutorily required bill of costs, which included a $35 fee for summoning witness/mileage pursuant to Articles 102.011(a)(3) and 102.011(b) of the Texas Code of Criminal Procedure. Due to an error in the certification of London's right to appeal, the \\u00abcourt of appeals abated the appeal to allow the trial court an opportunity to correct the certification. At the hearing on the abatement, the trial court appointed appellate counsel and re-certified Appellant's right to appeal. Appellant did not raise a constitutional challenge to the imposition of court costs in the trial court.\\nAfter the appointment of counsel on appeal, Appellant challenged the statutory witness fee of $35 as it applied to him. Appellant argued that charging a witness fee after trial violated his Sixth Amendment right of confrontation and compulsory process. Thus, according to Appellant, Article 102.011 of the Code of Criminal Procedure, which requires reimbursement for both summoning witnesses and paying for the expenses in serving subpoenas, is unconstitutional as applied to him. The State responded that Appellant failed to object to the imposition of this court cost at sentencing, and therefore, he failed to preserve his as-applied challenge.\\nThe court of appeals agreed with the State and did not address the merits of Appellant's claims. Relying on this Court's decision Curry v. State, the court of appeals held that \\\"[a] defendant may not raise for the first time on appeal an as-applied challenge to constitutionality of a statute.\\\" London v. State, No. 01-13-00441-CR, 2015 WL 1778583, at *4 (Tex. App.-Houston [1st Dist.] Apr. 16, 2015) (not designated for publication) (citing Curry v. State, 910 S.W.2d 490, 496 (Tex.Crim.App.1995)). We granted Appellant's petition for discretionary review to determine whether the court of appeals ought to have addressed Appellant's as-applied challenge to the statutorily applied fee on the merits.\\nPreservation of Error\\nGenerally, a party must complain in the trial court in order to preserve that complaint for appellate review. Tex.R.App. P. 33.1(a)(1). A party satisfies the requirement of a timely trial-level complaint \\\"if the party makes the complaint as soon as the grounds for it become apparent!)]\\\" Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex.Crim.App.2006). This means \\\"as soon as the [objecting party] knows or should know that an error has occurred.\\\" Hollins v. State, 805 S.W.2d 475, 476 (Tex.Crim.App.1991). In Gillenwaters, we summarized the policies supporting the timeliness requirement.\\nThe requirement that complaints be raised in the trial court (1) ensures that the trial court will have an opportunity to prevent or correct errors, thereby eliminating the need for a costly and time-consuming appeal and retrial; (2) guarantees that opposing counsel will have a fair opportunity to respond to complaints; and (3) promotes the orderly and effective presentation of the case to the trier of fact.\\n205 S.W.3d at 537. This rule generally applies to all complaints except those that involve rules that are \\\"waivable only\\\" or \\\"systematic\\\" (or \\\"absolute\\\") requirements. Mendez v. State, 138 S.W.3d 334, 342 (Tex.Crim.App.2004).\\nHowever, we have consistently held in the context of court-cost challenges that an appellant may not be faulted for failing to object when he or she was simply not given the opportunity to do so. Johnson v. State, 423 S.W.3d 385, 390-91 (Tex.Crim.App.2014); Landers v. State, 402 S.W.3d 252, 255 (Tex.Crim.App.2013); Wiley v. State, 410 S.W.3d 313, 321 (Tex.Crim.App.2013). As we explained in Johnson, an appellant may generally challenge the imposition of even mandatory court costs for the first time on direct appeal when those costs are not imposed in open court and the judgment does not contain an itemization of the imposed court costs. Johnson, 423 S.W.3d at 390-91. We noted in Riles v. State that procedural default is premised on both an appellant's knowledge of and failure to challenge an issue. 452 S.W.3d 333, 337 (Tex.Crim.App.2015). And enforcing a procedural-default rule against a defendant who had no opportunity to raise an objection in the trial court does not further any of the policies delineated in Gillenwaters. If this case were simply about whether Appellant was required to object to the imposition of court costs when the trial court pronounced sentence, it would be easily decided in Appellant's favor.\\nSufficient Record on Appeal\\nBut the State also argues that Appellant failed to preserve error on his as-applied challenge to Article 102.011 because his claim of error requires the development of additional facts that are not in the record, unlike the purely legal claims raised in Johnson and Landers. We have held that, to prevail upon an as-applied challenge to the constitutionality of a statute, it is incumbent upon the appellant to show that the statute operates unconstitutionally as applied to him in his situation. See Santikos v. State, 836 S.W.2d 631, 633 (Tex.Crim.App.1992) (op. on reh'g) (citing Parent v. State, 621 S.W.2d 796, 797 (Tex.Crim.App.1981)). Because such inquiries can often require factual development, we have explained that an as-applied chal lenge should not generally be raised prior to trial. State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex.Crim.App.2011) (citing Gillenwaters, 205 S.W.3d at 536 n. 4); see also Carrollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., 826 S.W.2d 489, 551 (Tex.1992) (noting that the determination of whether a statute has been unconstitutionally applied requires a fully developed factual record). This \\\"preservation\\\" theory has more to do with an appellate court's ability to resolve a claim rather than whether that claim was properly brought to the trial court's attention.\\nGenerally, the appealing party carries the burden to ensure that the record on appeal is sufficient to resolve the issues presented. See e.g. Word v. State, 206 S.W.3d 646, 651-52 (Tex.Crim.App. 2006). The failure to provide a sufficient appellate record precludes appellate review of a claim. See e.g. Guajardo v. State, 109 S.W.3d 456, 462 (Tex.Crim.App. 2003). Ordinarily, a party is required to file a motion for new trial to develop facts outside the record in order to avoid this problem. Tex.R.App. P. 21.2. But we held in Landers v. State that a motion for new trial is not required to preserve error for a purely legal challenge to the imposition of costs. 402 S.W.3d at 255. And, a motion for new trial is a vehicle for setting aside a finding or verdict of guilt or the trial court's assessment of punishment. Tex. RApp. P. 21.1. As we have made clear, \\\"court costs are not part of the guilt or sentence of a criminal defendant.\\\" Johnson, 423 S.W.3d at 390. As such, a motion for new trial is ill suited for bringing a challenge to the imposition of court costs. It makes no sense to require a defendant to file a motion for new trial solely to challenge the imposition of court costs because the defendant would not be entitled to a new trial even if he prevailed on the legal claim contained in the motion.\\nHowever, when error has been discovered after trial, a formal bill of exception can provide an appropriate vehicle to develop facts to support a challenge to the imposition of court costs if additional development is necessary. Landers, 402 S.W.3d at 256 (Tex.Crim.App.2013) (Keller, P.J. concurring) (citing Warren v. State, 693 S.W.2d 414, 416 (Tex.Crim.App.1985)). Rule 33.2 of the Rules of Appellate Procedure requires a party to file a formal bill of exception to complain on appeal about a matter that would not otherwise appear in the record. Tex.R.App. P. 33.2. This provision provides a party with a sixty-day window (or a ninety-day window if a motion for new trial has been filed) after the pronouncement or suspension of sentence in open court to file a formal bill. Tex.R.App. P. 33.2(e)(2). And the party can file a motion to extend the time limit an additional 15 days. Tex.R.App. P. 33.2(e)(3). If the parties disagree on the contents of the bill, the trial court may hold a hearing. Tex.R.App. P. 33.2(c). Unlike a motion for new trial, this provision is not tied to a specific type of relief, and it does not result in a new appellate timetable. Landers, 402 S.W.3d at 255 (noting that requiring a motion for new trial to develop the record in a challenge to the imposition of court costs would allow a judge to \\\"de facto alter the statutory time frames for motions for new trial\\\"). If a party chooses to challenge the imposition of court costs through a direct appeal rather than through an Article 103.008 hearing or a civil lawsuit, that party risks presenting an insufficient record on appeal and leaving an appellate court unable to properly evaluate that claim. A formal bill of exception is a proper vehicle whereby a party can develop the necessary facts to carry his or her burden to present a sufficient record on appeal on a claim regarding the imposition of court costs post-trial.\\nNo Further Factual Development is Required\\nHowever, we disagree with the State that a bill of exceptions was required in this case to provide the court of appeals with a sufficient record to evaluate Appellant's claim of error. The State cites to a number of cases for its argument, all of which are based on the premise that as-applied challenges may not generally be raised pre-trial because an as-applied challenge \\\"depends on the facts developed at trial.\\\" See State v. Rosseau, 398 S.W.3d 769, 774 (Tex.App.-San Antonio 2011), aff'd., 396 S.W.3d 550 (Tex.Crim.App. 2013). Here, the relevant facts are already present in the record, and there is no need for further development. The State claims that further inquiry must be made into whether or not Appellant is unable to bear the costs associated .with his defense. This argument is unpersuasive for two reasons. First, Appellant was declared indigent prior to his plea and he is \\\"presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs.\\\" Tex.Ceim. PROC.Code Ann. art. 26.04 (West 2010). At no point has the, State asserted that a material change has occurred so as to warrant further inquiry into Appellant's indigent status.\\nSecond, the State does not explain how additional facts surrounding Appellant's in-digeney-beyond those already in the record-would be necessary to resolve his as-applied challenge. Some courts of appeals seem to have held that there would never be a need to develop facts regarding indi-gency because \\\"[a] defendant's ability to pay is not relevant with respect to legislatively mandated court costs.\\\" See Martin v. State, 405 S.W.3d 944, 947 (Tex.App.-Texarkana 2013, no pet.); see also Owen v. State, 352 S.W.3d 542, 546 (Tex.App.-Amarillo 2011, no pet.); Williams v. State, 332 S.W.3d 694, 700 (Tex.App.-Amarillo 2011, pet. denied). But we need not go that far in this case. The court of appeals can decide if and how Appellant's indigent status is relevant to the merits of Appellant's challenge to the imposition of court costs when it reaches the merits of Appellant's claim. For the purposes of error-preservation, the question before us is whether the record supports Appellant's claim that he is indigent, and, absent a material change in Appellant's financial circumstances, the record establishes the fact and degree of Appellant's indigency. We see no reason to require further factual development on Appellant's indigency.\\nFurthermore, whether the witness/mileage fee pertains to the defense subpoenas or the State's subpoenas is of no consequence. Appellant has made clear that his challenge is to the fees imposed upon him by Articles 102.011(a)(3) and 102.011(b) because they infringe on his right to present a defense as an indigent defendant. See Ex parte Briggs, 187 S.W.3d 458, 468 n. 26 (Tex.Crim.App.2005) (quoting Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985)) (\\\"while the State need not 'purchase for the indigent defendant all the assistance that his wealthier counterparts might buy,' it must provide him 'the basic tools' to present his defense within our adversarial system\\\"). Article 102.011 does not condition the imposition of the witness/mileage fee upon which party summoned the witnesses. See Ramirez v. State, 410 S.W.3d 359, 365 (Tex.App.Houston [1st Dist.] 2013, pet. ref'd.) (holding that the intent of the statute is to reimburse the costs of summoning witnesses borne by the peace officer). Consequently, facts related to who summoned a particular witness are unnecessary for the court of appeals to determine whether the post-conviction imposition of a witness/mileage fee infringed upon Appellant's right to present his defense. On this record, it is clear that Article 102.011 has been applied to Appellant; no further factual development was necessary in order for the court of appeals to be able to resolve Appellant's claim.\\nConclusion\\nThe court of appeals could have addressed Appellant's as-applied challenge to the statutorily imposed witness/mileage fee. Because the record is sufficient to consider Appellant's constitutional claim, we remand this case to the court of appeals for a consideration of the merits of Appellant's as-applied challenge.\\n. There is also no indication on the judgment that court costs are to be imposed pursuant to statutory authority.\\n. Article 102.011(a)(3) provides that a \\\"defendant convicted of a felony or a misdemeanor shall pay...$5 for summoning a witness.\\\" Tex.Code Crim. Proc. Ann. art. 102.011(a)(3) (West 2010). Article 102.011(b) further provides that a defendant is also required to pay \\\"29 cents per mile for mileage required of an officer to perform a service listed in this subsection and to return from performing that service,\\\" and \\\"all necessary and reasonable expenses for meals and lodging incurred by the officer in the performance of services under this subsection.\\\" Tex.Code Crim. Proc. Ann. art. 102.011(b) (West 2010). There was no indication in the bill of costs how much of the $35 \\\"Summoning Witness/Mileage\\\" fee was for summoning witnesses and how much was for mileage and expenses.\\n.Appellant has raised only an as-applied challenge to the constitutionality of the statute imposing the witness fee. Appellant does not appear to argue that the imposed fee is unconstitutional in every application.\\n. In Johnson, the defendant raised a challenge to the sufficiency of the evidence supporting the imposed costs. 423 S.W.3d 385. In Landers, the defendant challenged the trial court's sua sponte imposition of attorneys fees for the prosecutor pro tem. 402 S.W.3d at 255. The State argues that both of these were purely legal claims and therefore, this Court's holdings in those cases regarding preservation are limited to situations in which the defendant raises a purely legal challenge to the imposition of court costs.\\n. The legislature appears to have already provided a tailor-made vehicle for a challenge the assessment of court costs after the final disposition of a case. Johnson, 423 S.W.3d at 395. Under Article 103.008, a defendant can file a motion to correct any error in the imposition of court costs up to a year after the final disposition of his or her case. Tex.Code Crim. Proc. Ann., art. 103.008 (West 2010). However, this provision is not the only method by which a defendant can bring a challenge to the imposition of court costs. See e.g. Rylander v. Caldwell, 23 S.W.3d 132, 137 (Tex.App.-Austin 2000) (orig.proceeding) (holding that Article 103.008 does not foreclose the possibility of a civil lawsuit to declare a statute imposing a court cost unconstitutional).\\n. The First Court of Appeals has observed that a bill of exception is primarily used in cases involving the improper exclusion of evidence, evidence, because it was not admitted, would not otherwise be part of the appellate record. Sturdivant v. State, 445 S.W.3d 435, 440 (Tex.App.-Houston [1st Dist.] 2014, pet. ref'd). However, we do not understand the court of appeals to say that a bill of exception can never be used to present a sufficient record on appeal regarding a constitutional challenge to the imposition of court costs. Moreover, Rule 33.2 itself is not limited to such claims.\"}"
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+"{\"id\": \"6839420\", \"name\": \"Ashish PATEL, Anverali Satani, Nazira Momin, Minaz Chamadia, and Vijay Lakshmi Yogi, Petitioners/Cross-Respondents, v. TEXAS DEPARTMENT OF LICENSING AND REGULATION, et al., Respondents/Cross-Petitioners\", \"name_abbreviation\": \"Patel v. Texas Department of Licensing & Regulation\", \"decision_date\": \"2015-06-26\", \"docket_number\": \"NO. 12-0657\", \"first_page\": \"69\", \"last_page\": \"143\", \"citations\": \"469 S.W.3d 69\", \"volume\": \"469\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Supreme Court of Texas\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T01:49:47.821073+00:00\", \"provenance\": \"CAP\", \"judges\": \"Justice Green, Justice Willett, Justice Lehrmann, and Justice Devine joined.\", \"parties\": \"Ashish PATEL, Anverali Satani, Nazira Momin, Minaz Chamadia, and Vijay Lakshmi Yogi, Petitioners/Cross-Respondents, v. TEXAS DEPARTMENT OF LICENSING AND REGULATION, et al., Respondents/Cross-Petitioners\", \"head_matter\": \"Ashish PATEL, Anverali Satani, Nazira Momin, Minaz Chamadia, and Vijay Lakshmi Yogi, Petitioners/Cross-Respondents, v. TEXAS DEPARTMENT OF LICENSING AND REGULATION, et al., Respondents/Cross-Petitioners\\nNO. 12-0657\\nSupreme Court of Texas.\\nArgued February 27, 2014\\nOPINION DELIVERED: June 26, 2015\\nArif Panju, Matthew R. Miller, Wesley Hottot, Institute for Justice, Bellevue, WA, for Petitioners.\\nJonathan F. Mitchell, Solicitor General, Greg W. Abbott, Attorney General, Daniel Tekstar Hodge, First Asst. Attorney General, Dustin Mark Howell, Amanda Joy Cochran- McCall, Nancy K. Juren, Office of the Attorney General, Austin, for Respondents.\\nJames B. Harris, Richard Barrett Phillips Jr., Thompson & Knight LLP, Dallas, for Amicus Curiae Houston Belt & Terminal Railway Co., BNSF.\\nJ. David Breemer, Sacramento, CA, for Amicus Curiae Pacific Legal Foundation.\\nC. W. \\u2018Rocky' Rhodes, Houston, for Amicus Curiae South Texas College of Law.\\n. Amicus curiae briefs have been submitted by the Pacific Legal Foundation (in support of the Threaders); Houston Belt & Terminal Railway Co., BNSF Railway Co., and Union Pacific Railway Co.; and South Texas College of Law 2014 State Constitutional Law Class (not submitted in support of either party).\", \"word_count\": \"39776\", \"char_count\": \"257711\", \"text\": \"Justice Johnson\\ndelivered the opinion of the Court, in which\\nJustice Green, Justice Willett, Justice Lehrmann, and Justice Devine joined.\\nIn this declaratory judgment action several individuals practicing commercial eyebrow threading and the salon owners employing them assert that, as applied to them, Texas's licensing statutes and regulations violate the Texas Constitution's due course of law provision. They claim that most of the 750 hours of training Texas requires for a license to practice commercial eyebrow threading are not related to health and safety or what threaders actually do. The State concedes that over 40% of the required hours are unrelated, but maintains that the licensing requirements are nevertheless constitutional.\\nThe trial court and court of appeals agreed with the State. We do not. We reverse and remand to the trial court for further proceedings.\\nI. Background\\nEyebrow threading is a grooming practice mainly performed in South Asian and Middle Eastern communities. It involves the removal of eyebrow hair and shaping of eyebrows with cotton thread. \\\"Threading,\\\" as it is most commonly known, is increasingly practiced in Texas on a commercial basis. Threaders tightly wind a single strand of cotton thread, form a loop in it with their fingers, tighten the loop, and then quickly brush the thread along the skin of the client, trapping unwanted hair in the loop and removing it. In 2011, commercial threading became regulated in Texas when the Legislature categorized it as a practice of \\\"cosmetology.\\\" See Tex. Occ. Code \\u00a7 1602.002(a)(8) (\\\" '[Cjosmetolo-gy' means the practice of performing or offering to perform'for compensation . [the] remov[al] [of] superfluous hair from a person's body using depilatories, preparations, or tweezing techniques_\\\"). That categorization and its effects underlie this case.\\nIn order to legally practice cosmetology in Texas a person must hold either a general operator's license' or, in certain instances, a more limited but easier-to-obtain esthetician license. Id. \\u00a7 1602.251(a). Licensing requirements for general operators include completing a minimum of 1,500 hours of instruction in a licensed beauty culture school and passing a state-mandated test. Id: \\u00a7 1602.254; 16 Tex. Admin. Code \\u00a7 83.20(a). Requirements for an esthetician license include completing a minimum of 750 hours of instruction in an approved training program and passing a state-mandated test. Tex. Occ.- Code \\u00a7 1602.257(b);' 16 Tex. Admin. Code \\u00a7 83.20(b). Commercial eyebrow threaders must have at least an esthetician license. See Tex. Occ. Code \\u00a7 1602.002(a)(8), .257; see also 16 Tex. Admin. Code \\u00a7 83.10(36).\\nThe Texas Department of Licensing and Regulation (TDLR or' the Department), which is governed by the Texas Commission of Licensing and Regulation (the Commission), is charged with overseeing individuals and businesses that offer cosmetology services. Tex. Occ. Code \\u00a7 51.051, .201(a), 1602.001-.002, 1603.001-.456. The executive director of TDLR is authorized to impose administrative fees of as much as $5,000 per violation, per day. See id. \\u00a7 51.302,1602.251.\\nIn late 2008 and early 2009, TDLR inspected Justringz \\u2014 a threading business with kiosk locations in malls across Texas \\u2014 and found Nazira Nasruddin Momin and Vijay Lakshmi Yogi performing eyebrow threading without licenses. TDLR issued Notices of Alleged Violations to them for the unlicensed practice of cosmetology. Minaz Chamadia was also performing threading at Justringz without a license, but she was not cited by TDLR. The administrative hearings and fines pending against Momin and Yogi have been stayed pursuant to a Rule 11 Agreement. See Tex. R. Civ. P. 11.\\nAshish Patel and Anverali Satani own threading salons named Perfect Browz. The State has not taken any administrative action related to Perfect Browz. Sata-ni is the sole owner of another threading business, Browz and Henna. TDLR inspected and investigated Browz and Henna on the basis of complaints filed against it. Although Satani received two warnings for Browz and Henna employing unlicensed threaders, the Department did not issue a Notice of Alleged Violation. Like the proceedings against Momin and Yogi, prosecution of Browz and Henna has been stayed by agreement of the parties.\\nIn December 2009, Patel, Satani, Mo-min, Chamadia, and Yogi (collectively, the Threaders) brought suit against TDLR, its executive director, the Commission, and the Commission's members (collectively, the State) pursuant to the Uniform Declaratory Judgments Act (UDJA) seeking declaratory and injunctive relief. See Tex. Civ. PRAc. & Rem. Code \\u00a7 37.001-.004, .006, .010. The Threaders alleged that the cosmetology statutes and administrative rules issued pursuant to those statutes (collectively, the cosmetology scheme) were unreasonable as applied to eyebrow threading and violated their constitutional right \\\"to earn an honest living in the occupation of one's choice free from unreasonable governmental interference.\\\" They specifically sought declaratory judgment that, as applied to them, the cosmetology statutes and associated regulations violate the privileges and immunities and due course guarantees of Article I, \\u00a7 19 of the Texas Constitution. They also sought a permanent injunction barring the State from enforcing the cosmetology scheme relating to the commercial practice of eyebrow threading against them.\\nThe Threaders moved for summary judgment, contending that \\\"application of the state's cosmetology laws and administrative rules to the commercial practice of eyebrow threading is unconstitutional because it places senseless burdens on eyebrow threaders and threading businesses without any actual benefit to public health and safety.\\\" The motion urged that the State could not constitutionally regulate the commercial practice of eyebrow threading as conventional cosmetology unless it could establish a real and substantial relationship between the statutes and regulations and the public's health and safety, and the State could not meet this standard. The State filed both a plea to the jurisdiction and a traditional motion for summary judgment. By its plea to the jurisdiction, the State challenged the Threaders' standing, contending that their claims were barred by sovereign immunity and the redundant remedies doctrine. In its motion for summary judgment, the State asserted that the Threaders failed to show that Texas's regulation of the practice of eyebrow threading deprived the Threaders of any substantive due process right protected by Article I, \\u00a7 19 or to plead a privileges and immunities claim different from their substantive due process claim.\\nThe district court denied the State's plea to the jurisdiction, granted its motion for summary judgment, and denied the Threaders' motion for summary judgment. Both parties appealed.\\nThe court of appeals affirmed. Patel v. Tex. Dep't of Licensing & Regulation, 464 S.W.3d 369 (Tex.App.-Austin 2012). As to the State's jurisdictional issues, the court held that the Threaders' suit was not barred by sovereign immunity or the redundant remedies doctrine, the Threaders had standing, and their claims were ripe. Id. at 378-79. As to the merits, the appeals court concluded that under either the real and substantial or rational basis test, the State established that the challenged cosmetology scheme, as applied to the Threaders, does not violate Article I, \\u00a7 19. Id. at 380.\\nIn this Court the Threaders argue that (1) the real and substantial test governs substantive due process challenges to statutes and regulations affecting economic interests when the challenges are brought under Article I, \\u00a7 19 of the Texas Constitution; (2) the cosmetology statutes and rules are unconstitutional as applied to the Threaders because they have no real and substantial connection to a legitimate governmental objective; and (3) even if rational basis review is the correct constitutional test, under the appropriate test, the statutes and regulations are unconstitutional as applied to the Threaders.\\nThe State contends that (1) it is immune from declaratory judgment claims raising constitutional challenges to statutes; (2) the Threaders' claims lack both justiciability and ripeness; (3) the claims are barred by the redundant remedies doctrine; (4) the business owners lack standing; (5) there is no real difference between the \\\"real and substantial\\\" and \\\"rational relationship\\\" tests for due process concerns; and (6) threading raises public health concerns, implicating valid governmental concerns, thus the challenged licensing statutes and regulations that address these concerns comport with the substantive due process requirements regardless of which test is applied.\\nWe address the arguments in turn, necessarily beginning with the jurisdictional issues the State raises. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012) (noting that if a court does not have jurisdiction, its opinion addressing any issues other than jurisdiction is advisory).\\nII. Jurisdiction\\nA. Sovereign Immunity\\nSovereign immunity implicates a trial court's jurisdiction, and, when it applies, precludes suit against a governmental entity. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004); Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 853 (Tex.2002). The State acknowledges this Court's decisions to the effect that sovereign immunity is inapplicable when a suit challenges the constitutionality of a statute and seeks only equitable relief. See City of Elsa v. M.A.L., 226 S.W.3d 390, 392 (Tex.2007) (concluding \\\"that the appeals court did not err by refusing to dismiss the plaintiffs' claims [against the city] for in-junctive relief on alleged constitutional violations\\\"); City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex.1995) (determining .that a plaintiff whose' constitutional rights have been violated may sue the State for equitable relief). But referencing Texas Department of Insurance v. Reconveyance Services, Inc., 306 S.W.3d 256, 258-59 (Tex.2010), and City of El Paso v. Heinrich, 284 S.W.3d 366, 370-72 (Tex.2009), the State argues that our more recent decisions indicate that we may be departing from that rule. We are not.\\nIn Heinrich we decided that sovereign immunity does not prohibit Suits brought to require state officials to comply with statutory or constitutional provisions. 284 S.W.3d at 372. But, to fall within this \\\"ultra vires exception,\\\" a suit must allege that a state official acted without legal authority or failed to. perform a purely ministerial act, rather than attack the officer's exercise of discretion. Id. The governmental entities themselves remain immune from suit, though, because unlawful acts of officials are not1 acts of the State. Id. at 372-73. Thus, we concluded that suits complaining of ultra. vires actions may not be brought against a governmental unit, but must be brought against the allegedly responsible government actor in his official capacity. Id. at 373.\\nWe reconfirmed the point in Reconveyance, where we held that the trial court lacked jurisdiction to hear a suit against the Texas Department of Insurance. 306 S.W.3d at 258-59. We concluded that the claims were substantively ultra vires claims because the pleadings alleged the Department of Insurance had acted beyond its statutory authority. Id. That being so, the claims should have been brought' against the appropriate state officials in their official capacities. Id.\\nIn this case, the Threaders did not plead that the Department and Commission officials exceeded the authority granted to them; rather, they challenged the constitutionality of the cosmetology statutes and regulations on which the officials based their actions. The State proposes that an official can act ultra vires either by acting inconsistently with a constitutional Statute or by acting consistently-with an unconstitutional one. It urges that the Threaders' claims fall within the \\\"acting consistently with an unconstitutional statute\\\" category. But the premise undeiiy-ing the ultra vires exception is that the State is not responsible for unlawful- acts of officials. Heinrich, 284 S.W.3d at 372. The State's proposal would effectively immunize it from suits claiming a statute is unconstitutional \\u2014 an illogical extension of that underlying premise.\\nContrary to the State's position, Heinrich and Reconveyance do not represent a departure from the rule that sovereign immunity is inapplicable in a suit against a governmental entity that challenges the constitutionality of a statute and seeks only equitable relief. See id. at 373 n.6. To the contrary, in Heinrich we clarified that \\\"[f]or claims challenging the validity of . statutes . the Declaratory Judgment Act requires that the relevant governmental entities be made parties, and thereby waives immunity.'\\\" Id. (citing Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex.1994)). And we have reiterated the principle more recently. See Tex. Dep't of Transp. v. Sefzik, 355 S.W.3d 618, 621-22 & n.3 (Tex.2011) (restating that state entities can be \\u2014 and in some instances such as when the constitutionality of a statute is at issue, must be \\u2014 parties to challenges under the UDJA); Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 634 (Tex.2010) (holding that allegations against the lottery commissioner were not ultra vires allegations because the claim challenged a statute and was not one involving a government officer's action or inaction). Accordingly, because the Threaders challenge the validity of the cosmetology statutes and regulations, rather than complaining that officials illegally acted or failed to act, the ultra vires exception does not apply. The Department and the Commission are not immune from the Threaders' suit.\\nB. Viability\\nNext, the State contends that the officials are immune from suit because, the Threaders had to prove their claims in order to survive a plea to the jurisdiction. See Heinrich, 284 S.W.3d at 372 (\\\"To fall within this ultra vires exception, a suit must not complain of a government officer's exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act.\\\"). The State argues that because the trial court granted summary judgment to the State on the merits, the Threaders did not prove a valid claim, rendering their pleadings insufficient to give the trial court jurisdiction. The State relies on Andrade v. NAACP of Austin, in which we held that the Secretary of State was immune from suit because the constitutional claims against her were non-viable. 345 S.W.3d 1, 6, 11-12, 18 (Tex. 2011). But, our conclusion there simply followed a line of decisions in which we held that claims were not viable due to basic pleading defects. Id. at 13-14. Andrade stands for the unremarkable principle that claims against state officials \\u2014 like all claims \\u2014 must be properly pleaded in order to be maintained, not that such claims must be viable on their merits to negate immunity. Id. Because the Threaders' pleadings presented a viable claim, they were sufficient.\\nC. Justiciability\\nNext, the State employs the doctrines of standing, ripeness, and redundant remedies to argue that the courts below, and this Court, lack jurisdiction because the claims of the Threaders are not justiciable. We consider each doctrine in turn.\\n1. Standing\\nThe standing doctrine identifies suits appropriate for judicial resolution. Brown v. Todd, 53 S.W.3d 297, 305 (Tex.2001). Standing assures there is a real controversy between the parties that will be determined by the judicial declaration sought. Id. (quoting Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 517-18 (Tex.1995)). \\\"[T]o challenge a statute, a plaintiff must [both] suffer some actual or threatened restriction under the statute\\\" and \\\"contend that the statute unconstitutionally restricts the plaintiffs rights.\\\" Garcia, 893 S.W.2d at 518. The State argues that Patel and Satani \\u2014 whose claims are based solely on their status as threading salon owners \\u2014 lack standing because they fail both prongs , of the standing test.\\nGenerally, courts must analyze the standing of each individual plaintiff to bring each individual claim he or she alleges. Heckman v. Williamson Cnty., 369 S.W.3d 137, 152 (Tex.2012). However, \\\"where there are multiple plaintiffs in a case, who seek injunctive or declaratory relief (or both), who sue individually, and who all seek the same relief[,] . the court need not analyze the standing of more than one plaintiff \\u2014 so long as that plaintiff has standing to pursue as much or more relief than any of the other plaintiffs,\\\" Id. at 152 n.64. The reasoning is fairly simple: if one plaintiff prevails on the merits, the same prospective relief will issue regardless of the standing of the oth\\u00e9r plaintiffs. Id.-, see also Andrade, 345 S.W.3d at 6 (\\\"Because the voters seek only declaratory and injunctive relief, and because each voter seeks the same relief, only one plaintiff with standing is required.\\\").\\nHere, Momin and Yogi, the threaders who received Notices of Alleged Violation, have standing, and the State does not contend otherwise. First, they have suffered some actual restriction under the challenged statute because TDLR initiated regulatory proc\\u00e9edings against each of them pursuant to their alleged violations of the Texas cosmetology statutes and regulations. And second, they are contending that the statute unconstitutionally restricts their rights to practice eyebrow threading. Accordingly, because Momin and Yogi have standing, we need not analyze the standing of Patel and Satani.\\nThe State also argues that because the Threaders seek attorneys' fees, the relief ultimately awarded will not necessarily be identical. But standing is determined at the beginning of a case, and whether the relief ultimately granted is the same for all parties is not determinative of the question. Here, Momin and Yogi have standing to seek relief and that is all we need to determine. See Andrade, 345 S.W.3d at 6-11; Barshop v. Medina Cnty. Underground Water Conservation Dist., 925 S.W.2d 618, 626-27 (Tex.1996); Garcia, 893 S.W.2d at 518-19.\\n2. Ripeness\\nThe State next argues that the claims brought by Patel, Satani, and Cha-madia are not ripe because Patel, Satani, and Chamadia have not faced administrative enforcement. We disagree.\\nUnder the ripeness doctrine, courts must \\\"consider whether, at the time a lawsuit is filed, the facts are sufficiently developed 'so that an injury has occurred or is likely to occur, rather than being contingent or remote.' \\\" Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851-52 (Tex.2000) (emphasis in original) (citations omitted). Thus, the ripeness analysis focuses on whether a case involves uncertain or contingent future events that may not occur as anticipated or may not occur at all. Id. at 852.\\nHere, although Patel, Satani, and Cha-madia have not yet faced administrative enforcement, the threat of harm is more than conjectural, hypothetical, or remote. Satani's business, Browz and Henna, has received two warnings for employing unlicensed threaders, and he has been referred to TDLR's legal department for enforcement. Patel and Satani risk $5,000 in penalties daily for employing unlicensed threaders. Tex. Occ. Code \\u00a7 51.302(a), 1602.403(c)(1). And Chamadia works at the same threading salon where Momin and Yogi were cited. Because at the time the lawsuit was filed Chamadia was performing threading services without a cosmetology license and Patel and Satani were employing threaders who did not have cosmetology licenses, these individuals were subject to a real threat of likely civil and criminal proceedings, as well as administrative proceedings that could result in penalties and sanctions. See Mitz v. Tex. State Bd. of Veterinary Med. Exam'rs, 278 S.W.3d 17, 26 (Tex.App-Austin 2008, pet. dism'd by agr.) (holding that a constitutional challenge to a state-licensing law is ripe when enforcement of the law is \\\"sufficiently likely\\\" to occur). Therefore, their claims are ripe.\\n3. Redundant Remedies\\nThe State also seeks to dismiss the claims of the Threaders who have re ceived citations based on the redundant remedies doctrine. Under the redundant remedies doctrine, courts will not entertain an action brought under the UDJA when the same claim could be pursued through different channels. See, e.g., Tex. Mun. Power Agency v. Pub. Util. Comm'n, 253 S.W.3d 184, 200 (Tex.2007). The focus of the doctrine is on the initiation of the case, that is, whether the Legislature created a statutory waiver of sovereign immunity that permits the parties to raise their claims through some avenue other than the UDJA. See, e.g., Aaron Rents, Inc. v. Travis Cent. Appraisal Dist., 212 S.W.3d 665, 669 (Tex.App.-Austin 2006, no pet.) (en banc) (\\\"When a statute provides an avenue for attacking an agency order, a declaratory judgment action will not he to provide redundant remedies.\\\"); see also Alamo Express, Inc. v. Union City Transfer, 158 Tex. 234, 309 S.W.2d 815, 827 (1958) (holding \\\"an action for declaratory judgment does not lie\\\" in a suit that asserts a \\\"direct attack upon the [agency's] order by appeal\\\").\\nThe State maintains that the Legislature has provided Momin and Yogi two alternative avenues under the Administrative Procedures Act (APA): (1) a suit for judicial review alleging that the administrative decision was \\\"in violation of a constitutional or statutory provision,\\\" Tex. Gov't \\\"Code \\u00a7 2001.174(2)(A); or (2) a suit for a pre-enforcement declaratory judgment alleging \\\"that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.\\\" Id. \\u00a7 2001.038(a). The State contends that because either of those APA provisions permits Yogi and Momin to file suits that would redress their alleged injuries, they may not pursue relief under the UDJA.\\nWe disagree with 'the State's assertion that a favorable decision under Section 2001.174 of the APA \\u2014 authorizing courts to review administrative decisions \\u2014 would obviate the need for the relief the Threaders seek. See id. \\u00a7 2001.174 (allowing state courts to reverse or remand existing agency orders, but not enjoin future ones). The available remedies on appeal from an administrative finding are limited to reversal of the particular orders at issue. Id. But the Threaders seek more than a reversal of the citations issued to Momin and Yogi. They seek prospective injunctive relief against future agency orders based on the statutes and regulations. Accordingly, because the declaration sought goes beyond reversal of an agency order, Section 2001.174 of the APA does not provide a redundant remedy.\\nThe State's contention that Section 2001.038 of the APA creates an avenue for pre-enforcement declaratory judgment that an agency rule is invalid and would redress the Threaders' alleged injuries is likewise unavailing. When a plaintiff files a proceeding that only challenges the validity of an administrative rule, the parties are bound by the APA and may not seek relief under the UDJA because such relief would be redundant. See Leeper, 893 S.W.2d at 443-44. The APA defines a rule as:\\n(A) . a state agency statement of general applicability that:\\n(i) implements, interprets, or prescribes law or policy; or\\n(ii) describes the procedure or practice requirements of a state agency;\\n(B) inelud[ing] the amendment or repeal of a prior rule; and\\n(C) . not including] a statement regarding only the internal management or organization of a state agency and not affecting private rights or procedures.\\nTex. Gov't Code \\u00a7 2001.003(6). Here the Threaders challenge both rules as defined by the APA and statutes. Because the Threaders cannot attack the constitutionality of the statutes pursuant to Section 2001.038 of the APA, their UDJA claims are not barred by the redundant remedies doctrine.\\nHaving concluded that the lower courts had jurisdiction, we turn to the merits.\\nIII. Constitutionality of the Statutes and Regulations\\nA. Due Course of Law\\nArticle I, \\u00a7 19 of the Texas Constitution provides that\\nNo citizen of this State shall be deprived of life, liberty, property, privileges or immunities,' or in any manner disfranchised, except by the due course of the law of the land.\\nTex. Const, art. I, \\u00a7 19.\\nWe have at least twice noted that Texas courts have not been entirely consistent in the standard of review applied when economic legislation is challenged under Section 19's substantive due course of law protections. See Trinity River Auth. v. URS Consultants, Inc.-Tex., 889 S.W.2d 259, 263 & n.5 (Tex.1994); Garcia, 893 S.W.2d at 525. The Threaders go beyond those two cases. They assert that courts considering as-applied substantive due process challenges under Section 19 have mixed and matched three different standards of review through the years. They label those standards as: (1) real and substantial, (2) rational basis including consideration of evidence, and (3) no-evidence rational basis.\\nThe Threaders argue that the first referenced standard \\u2014 \\\"real and substantial\\\" \\u2014 is exemplified by cases such as State v. Richards, 157 Tex. 166, 301 S.W.2d 597 (1957); Aladdin's Castle, Inc. v. City of Mesquite, 713 F.2d 137, 138 n.2 (5th Cir. 1983) (applying Texas law); Satterfield v. Crown Cork & Seal Co., 268 S.W.3d 190, 215 (Tex.App.-Austin 2008, no pet.); Texas State Board of Pharmacy v. Gibson's Discount Center, Inc., 541 S.W.2d 884, 887-89 (Tex.Civ.App.-Austin 1976, writ ref'd n.r.e.); City of Houston v. Johnny Frank's Auto Parts Co., 480 S.W.2d 774, 779 (Tex.Civ.App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.); Humble Oil & Refining Co. v. City of Georgetown, 428 S.W.2d 405, 407-08 (Tex.Civ.App.-Austin 1968, no writ); and City of Coleman v. Rhone, 222 S.W.2d 646, 649 (Tex.Civ.App.-Eastland 1949, writ refd). They interpret this standard as one in which the reviewing court considers whether (1) the legislative purpose for the statute is a proper one, (2) there is a real and substantial connection between that purpose and the language of the statute as the statute functions in practice, and (3) the statute works an excessive or undue burden on the person challenging the statute in relation to the statutory purpose. They argue that the distinguishing characteristic of cases employing the standard is that the courts using it consider evidence concerning both the government's purpose for a law and the law's real-world impact on the challenging party.\\nThe Threaders recognize that the.real and substantial test affords less deference to legislative judgments than does the federal rational basis standard. But they point to In the Interest of J.W.T., 872 S.W.2d 189, 197-98 & n.23 (Tex.1994); Davenport v. Garcia, 834 S.W.2d 4, 10 (Tex.1992); and LeCroy v. Hanlon, 713 S.W.2d 335, 338-41 (Tex.1986), as examples of cases in which this Court specifically said or implied that certain-language in the Texas Constitution affords more protection than comparable text in the federal Constitution. They also reference the United States Supreme Court as having noted in City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 293, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982), that Article I, \\u00a7 19 of the Texas Constitution might afford more protections than does the Fourteenth Amendment. They claim that twenty other states utilize the \\\"real and substantial\\\" test.\\nThe Threaders present the second standard \\u2014 \\\"rational basis including consideration of evidence\\\" \\u2014 as being exemplified by cases such as City of San Antonio v. TPLP Office Park Properties, L.P., 218 S.W.3d 60, 65-66 (Tex.2007); Garcia, 893 S.W.2d at 525-26; Limon v. State, 947 S.W.2d 620, 627-29 (Tex.App.-Austin 1997, no writ); and Martin v. Wholesome Dairy, Inc., 437 S.W.2d 586, 590-600 (Tex.Civ.App.-Austin 1969, writ ref'd n.r.e.). Courts applying this test, the Threaders posit, lean heavily on the federal rational basis test and often weigh evidence \\u2014 including expert testimony \\u2014 to determine the purpose of a law and whether the law enacted to effect that purpose is reasonable.\\nThe Threaders reference the third standard as \\\"no evidence rational basis,\\\" which they say is embodied in cases such as Barshop, 925 S.W.2d at 625, 632-33; Garcia v. Kubosh, 377 S.W.3d 89, 98-100 (Tex.App.-Houston [1st Dist.] 2012, no pet.); Lens Express v. Ewald, 907 S.W.2d 64 (Tex.App.-Austin 1995, no writ); and Texas Optometry Board v. Lee Vision Center, Inc., 515 S.W.2d 380, 385-86 (Tex.Civ.App.-Eastland 1974, writ ref'd n.r.e.). Under the no-evidence version of the rational basis test, they argue, economic regulations do not violate Section 19 if they have any conceivable justification in a legitimate state interest, regardless of whether the justification is advanced by the government or \\\"invented\\\" by the reviewing court, and evidence \\\"seldom\\\" matters.\\nThe Threaders say both the \\\"real and substantial\\\" and \\\"rational basis including consideration of evidence\\\" standards have two prongs, with the first being the primary difference between them. The first prong of the real and substantial standard, they maintain, is whether the challenged statute or regulation has a real and substantial connection to a legitimate governmental objective. They contrast that test with the rational basis including consideration of evidence standard, which they argue is more lenient and favorable toward the government because it asks only whether a statute or regulation arguably could bear some rational relationship to a legitimate governmental objective. They further maintain that for both standards the second prong is whether, on balance, the challenged statute or rule imposes an arbitrary or unduly harsh burden on the challenger in light of the government's objective.\\nIn light of the parties' contentions, we first briefly review the history of the due course of law language in Article I, \\u00a7 19.\\nB. Development of the Standard\\nThe Declaration of Rights of the 1836 Republic of Texas Constitution included three separate rights guaranteeing \\\"due course of law\\\" or the \\\"due course of the law of the land\\\": (1) the sixth, which (among other protections) prevented an accused in a criminal proceeding from being \\\"deprived of life, liberty, or property, but by due course of law\\\"; (2) the eleventh, which provided that an injured person \\\"shall have remedy by due course of law\\\"; and (3) the seventh, which provided that \\\"[n]o citizen shall be deprived of privileges, outlawed, exiled, or in any manner disenfranchised, except by due course of the law of the land.\\\" Rep. of Tex. Const, of 1836, Declaration of Rights 6-7, 11, reprinted in 1 H.P.N. Gammel, The Laws of Texas 1822-1897, at 1083 (Austin, Gammel Book Co. 1898).\\nIn 1845, a group of delegates met to draft and propose Texas's first state constitution. The committee responsible for drafting the Bill of Rights proposed including two due course of law clauses \\u2014 not the three clauses in the Declaration of Rights of the 1836 Republic of Texas Constitution. Comm, on Bill of Rights & Gen. Provisions, Journals of the Convention, Assembled at the City of Austin on the Fourth of July, 1815, for the Purpose of Framing a Constitution for the State of Texas, assembled July 11, 1845, at 34 (Austin, Mine & Cruger 1845), available at http://tarlton. law.utexas.edu/constitutions/texasl845/ journals. One of the suggested clauses protected an injured party's right to have \\\"remedy by due course of law.\\\" Id. The other clause incorporated the criminal due course of law protections from Section 6 of the Republic's Declaration of Rights into a composite due course guarantee: \\\"No citizen of this state shall be deprived of life, liberty, property, or privileges, outlawed, exiled, or in any manner disenfranchised, except by due course of the law of the land.\\\" Id. Thus, the committee's proposal added \\\"life, liberty, property\\\" to the existing due course of law guarantee, while removing the same phrase from the protections for the criminally accused. Id. The proposal also added \\\"of this state\\\" after the word \\\"citizen.\\\" The proposal was ratified as Article I, \\u00a7 16 of the Texas Constitution of 1846.\\nThe language in the Due Course of Law Clause was not changed in the Texas Constitutions adopted in 1861, 1866, and 1869. See Tex. Const, of 1861, art. I, \\u00a7 16; Tex. Const, of 1866, art. I, \\u00a7' 16; Tex. Const, of 1869, art. I, \\u00a7 16. But the Constitutional Convention of 1875 reexamined the clause and proposed changing it to its current language. Comm, on Bill of Rights, Journal of the Constitutional Convention of the State of Texas, Begun and Held at the City of Austin, September 6th, 1875, assembled Oct. 2, 1875, at 274 (Galveston, News Office 1875), available at http:// tarlton.law.utexas.edu/constitutions/texas 1876/journals. The proposals were adopted, resulting in the clause reading as it now does. See Tex. Const, art. I, \\u00a7 19.\\nIn 1873, two years before the convention that proposed the 1875 Texas Constitution, the United States Supreme Court interpreted the phrase \\\"privileges or immunities\\\" in the United States Constitution in the Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L.Ed. 394 (1873). There, several butchers challenged a Louisiana statute granting a single slaughtering company a monopoly on the butchering of animals in New Orleans. Id. at 38-39. The statute was challenged under the Thirteenth and Fourteenth Amendments to the federal Constitution. Id. at 58-59. In rejecting the butchers' claims, the Court discerned a distinction in the text of the Fourteenth Amendment between the \\\"privileges and immunities of citizens of the United States\\\" and those of \\\"citizens of the several states,\\\" and concluded that the Fourteenth Amendment protected only privileges and immunities which owed their existence to the federal government. Id. at 74, 78-79. It was the obligation of the states, according to the Supreme Court, to protect \\\"privileges or immunities\\\" founded in state citizenship, including even such fundamental rights as the right to acquire and possess property and to pursue and obtain happiness and safety. Id. at 74-78. Thus, discussions preceding proposal and adoption of the 1875 Texas Constitution were held against the backdrop of recent Supreme Court mandates placing guardianship of non-federal rights of individuals squarely in the hands of the states. See Debates in the Texas Constitutional Convention of 1875, 292 (Seth S. McKay ed., Univ. of Tex. 1930).\\nRatification of the Fourteenth Amendment to the United States Constitution in 1868 seemed to hasten development of substantive due process jurisprudence. See Thomas M. Cooley, A TREatise on the Constitutional Limitations Which Rest Upon the Legislative Powee of the States OF THE AMERICAN Union 354-56 (1868). The view in Texas was the same, as exemplified by cases such as Milliken v. City Council of Weatherford, 54 Tex. 388 (1881). There the Court addressed a claim by Weatherford's mayor that he had been improperly removed from office for violating a city ordinance that barred renting rooms to prostitutes without respect to whether the rooms were used for prostitution. Id. at 393. The Court concluded that the city could not prohibit prostitutes as a class from renting rooms because such action would be \\\"unreasonable and in contravention of common right.\\\" Id. at 394. Although the Court did not mention \\\"due course\\\" or \\\"due process\\\" of law, its supporting citations included Article I, \\u00a7 19. See id. And in Houston & Texas Central Railway Co. v. City of Dallas, 98 Tex. 396, 84 S.W. 648 (1905), the Court considered the constitutionality of a municipal ordinance governing railroad crossing grades. The Court explained that\\nit may often become necessary for courts, having proper regard to the constitutional safeguard ., to inquire as to the existence- of the facts upon which a given exercise , of the [police] power rests, and into the manner of its exercise, and if there has been an .invasion of property rights under the guise of this power, without justifying occasion, or in an unreasonable, arbitrary, and oppressive way, to give to the injured party that protection which the Constitution secures.\\nId. at 653. In accord with decisions from the United States Supreme Court, this Court rejected the city's contention that a legislative judgment was conclusive. Id. at 653-54. The Court' determined that the lower courts erred by upholding the ordinance without providing the railroad an opportunity to present evidence regarding the unreasonableness of the ordinance. Id.\\nTexas judicial decisions- in the nineteenth and early twentieth century indicated that the Texas Due Course of Law Clause and the federal Due Process Clause were nearly, if not exactly, coextensive. Such decisions generally tracked the thinking expressed by the Court in Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249, 252-53 (1887), where the Court held that Article I, \\u00a7 19 was not violated under the facts of that case because of the United States Supreme Court's interpretation of the Fourteenth Amendment in a similar case. During this period, Texas courts frequently addressed whether a legislative enactment was a proper exercise of the governmental unit's police power, examining justifications for the enactment and typically relying on decisions from the United States Supreme Court as guidance. See, e.g., Mabee v. McDonald, 107 Tex. 139, 175 S.W. 676, 680 (1915) (\\\" 'Due process of law,' as used in the fourteenth amendment, and 'due course of the, law of the land,' as used in Article I, \\u00a7 19, of the Constitution of Texas, . according to the great weight of authority, are, in nearly if not all respects, practically synonymous.\\\"),; rev'd on other grounds, 243 U.S. 90, 92, 37 S.Ct. 343, 61 L.Ed. 608 (1917) (holding that federal Due Process Clause was violated); St. Louis Sw. Ry. Co. of Tex. v. Griffin, 106 Tex. 477, 171 S.W. 703, 704-07 (1914) (holding statute impairing corporation's right to discharge employees at will violated liberty of contract protected by both federal- and state Constitutions); Bruhl v. State, 111 Tex.Crim. 233, 13 S.W.2d 93, 94-95 (1928) (statute prohibiting non-optometrist merchant from assisting a customer in purchase of eyeglasses violated both Article I, \\u00a7 19 and the Fourteenth Amendment). Occasionally, Texas courts mentioned that a proper review involved examining the enactment for a \\\"real or substantial\\\" relationship to the government's police power interest in public health, morals, or safety \\u2014 a standard consistent with decisions of the United States Supreme Court. See, e.g., Ex parte Flake, 67 Tex.Crim. 216, 149 S.W. 146, 148-50 (1911) (quoting Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887)).\\nAs to federal due process standards, this period before 1935 is sometimes referred to as the \\\"Lochner period\\\" in reference to the United States Supreme Court's decision in Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905). There, the Court considered a statute regulating the number of hours that bakers could work, enacted ostensibly for the purpose of protecting the health of bakers. Id. at 45-47, 58, 25 S.Ct. 539. The Court determined that the legislatively declared purpose for an enactment could be disregarded by a court reviewing challenges to the statute and that\\n[t]he purpose of a statute must be determined from the natural and legal effect of the language employed; and whether it is or is not repugnant to the Constitution of the United States must be determined from the natural effect of such statutes when put into operation, and not from their proclaimed purpose....\\n. [T]his section of the statute . has no such direct relation to, and no such substantial effect upon, the health of the employee, as to justify us in regarding the section as really a health law.\\nId. at 64, 25 S.Ct. 539. The Court held that the law was intended only \\\"to regulate the hours of labor between the master and his employees\\\" despite the legislature's stated purpose of concern for the health of bakers. Id. Because the Fourteenth Amendment did not permit such a regulation without a legitimate health and safety justification, the Court struck down the law. Justice Holmes, in dissent, advanced a much more deferential standard of review:\\nWe [have] said that the power of the courts to review legislative action in respect of a matter affecting the general welfare exists only when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured, by the fundamental law.... If there be doubt as to the validity of the statute, that doubt must therefore be resolved in favor of its validity, and the courts must keep their hands off, leaving the legislature to meet the responsibility for unwise legislation. If the end which the legislature seeks to accomplish be one to which its power extends, and if the means employed to that end, although not the wisest or best, are yet not plainly and palpably unauthorized by law, then the court cannot interfere.\\nId. at 68, 25 S.Ct. 539 (Holmes, J., dissenting) (emphasis added) (internal quotation marks omitted).\\nThe Court remained within the bounds charted by Lochner for several years. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); N.Y. Life Ins. Co. v. Dodge, 246 U.S. 357, 38 S.Ct. 337, 62 L.Ed. 772 (1918); Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915); Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240; 59 L.Ed. 441 (1915), overruled in part by Phelps Dodge Corp. v. Nat'l Labor Relations Bd., 313 U.S. 177, 187, 61 S.Ct. 845, 85 L.Ed. 1271 (1941); Adair v. United States, 208 U.S. 161, 28 S.Ct. 277, 52 L.Ed. 436 (1908), overruled in part by Phelps Dodge Corp., 313 U.S. at 187, 61 S.Ct. 845. Basically, then, during the \\\"Lochner era,\\\" substantive due process was a touchstone by which courts analyzed both the purpose and the effect of governmental economic regulation by scrutinizing them with a somewhat equivocal deference to the legislative body's pronounced purpose for a law and its choice of the method embodied in the law to achieve that purpose.\\nThe federal landscape changed in 1938. In United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938), the Supreme Court pronounced that\\nregulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis.\\nId. at 152, 58 S.Ct. 778. Ensuing federal decisions tracked Carolene Products' guidance that economic regulatory laws were presumed to be constitutional absent evidence or judicially known facts demonstrating that no rational basis existed for the regulation. For example, in 1955 in Williamson v. Lee Optical of Oklahoma, Inc., the Supreme Court explained that\\n[t]he day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.\\n348 U.S. 483, 488, 75 S.Ct. 461, 99 L.Ed. 563 (1955).\\nTexas courts were faced with the question of whether, after Carolene Products, to stay the course as to prior decisions interpreting Article I, \\u00a7 19's due course of law provision, or follow the lead of the United States Supreme Court as to the Fourteenth Amendment's Due Process Clause. That is, Texas courts had to decide whether \\\"due process of law,\\\" as used in the Fourteenth Amendment, and \\\"due course of law of the land,\\\" as used in Article I, \\u00a7 19 of the Texas Constitution, remained \\\"in nearly if not all respects, practically synonymous,\\\" or whether the meaning of the Texas Constitution remained the same as it had been earlier interpreted because the Constitution's language had not been amended through the political process. See Mabee, 175 S.W. at 680. As the parties to this case \\u2014 and numerous Texas courts and commentators\\u2014 have pointed out, the answer has not been made clear as to substantive due process challenges to governmental regulation of economic interests. As set out more fully above, the Threaders argue that in some cases this Court as well as courts of appeals have continued using a less deferential, heightened-scrutiny standard of review, while in some cases different ones have been applied.\\nFollowing the lead of our prior jurisprudence, we conclude that the Texas due course of law protections in Article I, \\u00a7 19, for the most part, align with the protections found in the Fourteenth Amendment to the United States Constitution. But, that having been said, the drafting, proposing, and adopting of the 1875 Constitution was accomplished short ly after the United States Supreme Court decision in the Slaughter-House Cases by which the Court put the responsibility for protecting a large segment of individual rights directly on the states. Given the temporal legal context, Section 19's substantive due course provisions undoubtedly were intended to bear at least some burden for protecting individual rights that the United States Supreme Court determined were not protected by the federal Constitution. That burden has been recognized in various decisions of Texas courts for over one hundred and twenty-five years. We continue to do so today: the standard of review for as-applied substantive due course challenges to economic regulation statutes includes an accompanying consideration as reflected by cases referenced above: whether the statute's effect as a whole is so unreasonably burdensome that it becomes oppressive in relation to the underlying governmental interest. See, e.g., Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 938 (Tex.1998) (stating that an ordinance \\\"will violate substantive due process only if it is clearly arbitrary and unreasonable\\\") (emphasis in original); Garcia, 893 S.W.2d at 525 (determining statute was \\\"sufficiently rational and reasonable to meet constitutional due course requirements\\\") (emphasis added); Trinity River Auth., 889 S.W.2d at 264 (identifying statute as constitutional because it \\\"strikes a fair balance\\\" between the legislative purpose and rights of litigants) (emphasis added); Hous. & Tex. Cent. Ry. Co., 84 S.W. at 653 (noting the constitutional inquiry was whether statute's effect was justified, or operated in \\\"an unreasonable, arbitrary, and oppressive way\\\"); Milliken, 54 Tex. at 394 (stating the constitutional inquiry was whether statute operated \\\"unreaso-nabl[y] and in contravention of common right\\\").\\nIn sum, statutes are presumed to be constitutional. To overcome that presumption, the proponent of an as-applied challenge to an economic regulation statute under Section 19's substantive due course of law requirement must demonstrate that either (1) the statute's purpose could not arguably be rationally related to a legitimate governmental interest; or (2) when considered as a whole, the statute's actual, real-world effect as applied to the challenging party could not arguably be rationally related to, or is so burdensome as to be oppressive in light of, the governmental interest.\\nTo be clear, the foregoing standard includes the presumption that legislative enactments are constitutional, e.g., Smith v. Davis, 426 S.W.2d 827, 831 (Tex.1968), and places a high burden on parties claiming a statute is unconstitutional. See, e.g., Tex. State Bd. of Barber Exam'rs v. Beaumont Barber Coll., Inc., 454 S.W.2d 729, 732 (Tex.1970). The presumption of constitutionality and the high burden to show unconstitutionality would apply as well to regulations adopted by an agency pursuant to statutory authority. See Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424, 428 (1946). Although whether a law is unconstitutional is a question of law, the determination will in most instances require the reviewing court to consider the entire record, including evidence offered by the parties. Garcia, 893 S.W.2d at 520.\\nC. Application: The Texas Cosmetology Statutes and Regulations\\nThe Threaders do not contend that the State's licensing of the commercial practice of cosmetology is not rationally related to a legitimate governmental inter est. But they strongly urge that the number of hours of training required to obtain even an esthetician license has an arbitrary and unduly burdensome effect as applied to them because the 750-hour requirement has no rational connection to reasonable safety and sanitation requirements, which the State says are the interests underlying its licensing of threaders. In resolving the issue, we consider the entire record. Garcia, 893 S.W.2d at 520.\\nSeveral statutes address safety standards and sanitary conditions relating to cosmetology. See Tex. Oce. Code \\u00a7 1602.001, 1603.001. Commission rules also address public safety and sanitary conditions. E.g., 16 Tex. Admin. Code \\u00a7 83.50(a), .53(a)-(b), .70\\u00ae, .71(b), .100-.115. To address competency of cosmetologists in Texas, the Legislature and Commission have imposed specific educational and training requirements for cosmetologists, estheticians, and salon operators. Tex. Occ. Code \\u00a7 1602.001, .254, .255, .257. To become a licensed esthetician, threaders must take at least 750 hours of instruction in a Commission-approved training program, id. \\u00a7 1602.254(b)(3), and take State-prescribed practical and written examinations. See 16 Tex. Admin. Code \\u00a7 83.20(a)(6), .21(c), .21(e). Those training programs must devote at least 225 hours of instruction to facial treatments, cleansing, masking, and therapy; 90 hours to anatomy and physiology; 75 hours to electricity, machines, and related equipment; 75 hours to makeup; 50 hours to orientation, rules, and laws; 50 hours to chemistry; 50 hours to care of clients; 40 hours to sanitation, safety, and first aid; 35 hours to management; 25 hours to superfluous hair removal; 15 hours to aroma therapy; 10 hours to nutrition; and 10 hours to color psychology. Id. \\u00a7 83.120(b). Commission-approved beauty schools are not required to teach threading techniques. The schools are required to provide 25 hours of instruction in superfluous hair removal, which encompasses threading, but individual schools decide which techniques to teach. The record reflects that fewer than ten of the 389 Commission-approved Texas beauty schools teach threading techniques, and only one of those devotes more than a few hours to them. Further, threading techniques are not required to be part of the mandated tests. Both the practical and written tests are administered and scored by a third-party testing firm. The firm's testing guidelines show that the practical examination is an hour and thirty minutes in length and includes sanitation, disinfection and hair removal, but does not include threading, although a test-taker may elect to remove six hairs from the model's eyebrow using thread instead of tweezers during part of the exam. Nor does the written examination include questions as to threading techniques, although it includes globally relevant questions about sanitation, disinfection, and safety.\\nAs shown above, of the 750 hours of required instruction for an esthetician license, 40 are required to be directly devoted to sanitation, safety, and first aid. Id. But in addition, hygiene and sanitation are covered as they relate to four other portions of the curriculum: facial treatment, anatomy, rules and laws, and superfluous hair removal. Hygiene and sanitation are also addressed in the written and practical licensing exams, along with other topics including disinfection and safety.\\nOne argument the Threaders make, which at its core challenges the rationality of any required training, is that the unlicensed practice of eyebrow threading is simply not a threat to public health and safety; In support of the argument they reference their expert witness who submitted a report addressing all of the available medical literature on eyebrow threading, as well as her own empirical analysis of the technique's safety. Based on her investigation and professional experience with eyebrow threading, the expert concluded that threading is safe and, from a medical perspective, requires nothing more than basic sanitation training.\\nBut the Threaders' expert also raised public health concerns during her testimony. She testified that threading may lead to the spread of highly contagious bacterial and viral infections, including flat warts, skin-colored lesions known as mulluscum contagiosum, pink eye, .ringworm, impetigo, and staphylococcus aureus, among others. She also agreed that failure to utilize appropriate sanitation practices \\u2014 for example, proper use of disposable materials, cleaning of work stations, effective hand-washing techniques, and correct treatment of skin irritations and abrasions \\u2014 can further expose threading clients to infection and-disease.\\nMoving beyond the argument- that threading does not- pose health risks to . begin with, the Threaders contend that as many as 710 of the required 750 training hours for an esthetician license are not related to properly training threaders in hygiene and sanitation, considering the activities they actually perform. The State argues that the Threaders greatly exaggerate the number of unrelated hours, but concedes that as many as 320 of the curriculum hours are not related to activities threaders actually perform.\\nDifferentiating between types of cosmetology practices is the prerogative of the Legislature and regulatory agencies to which the Legislature properly delegates authority. And it is not for courts to second-guess their decisions as to the necessity for and the extent' of training that should be required for different types of commercial service providers. But we note in passing that persons licensed to apply eyelash extensions \\u2014 a specialty involving the use of chemicals and a high rate of adverse reactions \\u2014 are required to undergo only 320 hours of training. See id. We also note that when the Threaders filed suit, hair braiders were required to undergo only 35 hours of training, 16 of which were in health and safety. See id. \\u00a7 83.120(b). Hair braiding, however, has since been deregulated by the Legislature. See Act of May 13, 1999, 76th Leg,, R.S., ch. 388, \\u00a7 1, sec. 1602.002(2), 1999 Tex. Gen. Laws 1431, 2186, repealed by Act of May 22, 2015, 84th Leg., R.S., H.B. 2717 (to be codified at Tex. Oco. Code \\u00a7 1601.003,1602.003(b)(8)).\\nThe fact that approximately 58% of the minimum required training hours are arguably relevant to the activities threaders perform, while 42% of the hours are not, is determinative of the aspect of the second prong of the as-applied standard which asks whether the effect of the requirements as a whole' could be rationally related to the governmental interest. They could be. But the percentage must also be considered along with other factors, such as the quantitative aspect of the hours represented by that percentage and the costs associated with them when determining the other aspect of the second prong\\u2014 whether the licensing requirements as a whole are so burdensome as to be oppressive to the Threaders. Where the number of hours required and the associated costs are low, the ratio of required hours to arguably relevant hours is less important as to the burdensome question. But its importance increases as the required hours increase. For example, if the statute and Commission's rules required ten hours of training for a threader to be licensed and 58 percent, or 5.8 hours, were arguably relevant to what threaders do, the burden of the irrelevant hours would weigh less heavily in determining whether the effect of the requirements as a whole on aspiring threaders is oppressive. In the case of the Threaders, however, the large number of hours not arguably related to the actual practice of threading, the associated costs of those hours in out-of-pocket expenses, and the delayed employment opportunities while taking the hours makes the number highly relevant to whether the licensing requirements as a whole reach the level of being so burdensome that they are oppressive.\\nThe dividing line is not bright between the number of required but irrelevant hours that would yield a harsh, but constitutionally acceptable, requirement and the number that would not. Even assuming that 430 hours (a number the Threaders dispute) of the mandated training are arguably relevant to what commercial threaders do in practice, that means threaders are required to undergo the equivalent of eight 40-hour weeks of training unrelated to health and safety as applied to threading. The parties disagree about the costs of attending cosmetology training required for a license to practice threading. The Threaders point to evidence that the cost averages $9,000. The State says the $9,000 cost is for private schools while public schools charge only $3,500. Given the record as to the number of hours of training required for subjects unrelated to threading, our decision neither turns on, nor is altered by, the exact cost. But the admittedly unrelated 320 required training hours, combined with the fact that threader trainees have to pay for the training and at the same time lose the opportunity to make money actively practicing their trade, leads us to conclude that the Threaders have met their high burden of proving that, as applied to them, the requirement of 750 hours of training to become licensed is not just unreasonable or harsh, but it is so oppressive that it violates Article I, \\u00a7 19 of the Texas Constitution.\\nIV. Response to the Dissents\\nThe dissenting Justices say four things that bear responding to. First, they say that measuring the effects of the provisions by an \\\"oppressive\\\" standard is to measure it by no standard at all. Post at 135 (Hecht, C.J., dissenting); post at 142 (Guzman, J., dissenting). The actuality of the matter is that the standard they propose for measuring the effects of the provisions is for all practical purposes no standard. The only way an enactment could fail the test the dissenters advocate is if the purpose of the enactment were completely mismatched with \\u2014 that is, it bore no rational relationship to \\u2014 the provisions enacted to effect it. For example, assume in this case the record demonstrated conclusively, or the State conceded, that the Threaders are right and only 40 hours of the required training are relevant to safety and sanitation in performing threading. It would not matter under the Chief Justice's proposed standard. For under that standard, so long as at least some part of the required training could be rationally related to safety and sanitation, the entire 750 hours are rationally related because the provisions as a whole \\\"might achieve the objective.\\\" Post at 139. The logical result of such standard would be that if the State were to require 1,500 or even more hours of training, the increased requirement would pass constitutional muster. Why is that so? Because if 40 hours of training might conceivably effect the Legislature's purpose and be constitutional, then any greater number that included that same 40 hours would also.\\nSecond, the Chief Justice references a small minority of other states that require threaders to be licensed either explicitly or by generally requiring licensing of those who commercially remove superfluous hair. Post at 128. But the Threaders neither contest the rationality of the State's requiring them to be licensed, nor the requirement that they take training in subjects such as sanitation and hygiene. What they contest is the excessiveness of the training requirements given the magnitude of the irrelevant training. And whether that excessive requirement violates the Texas Constitution is not determined by the relationship between other states' statutes and regulations and their respective constitutions.\\nThird, the Chief Justice says that articulating and weighing factors such as the cost and relevance of the required training in considering the constitutionality of the provisions is \\\"generally referred to as legislating\\\" and should not be done by judges, post at 135, and Justice Guzman asserts that any line drawing in this case should be done by the Legislature, post at 143. But providing standards for measuring the constitutionality of legislative enactments is not only a judicial prerogative \\u2014 it is necessary in order to make the law predictable and not dependent on the proclivities of whichever judge or judges happen to be considering the case. Indeed, the dissenting Justices would reach the result they propose by measuring the licensing provisions against standards \\u2014 the standards of \\\"rational relationship\\\" jurisprudence \\u2014 just different standards. Post at 138-39. Expressing factors by which a statute's constitutionality is to be measured and by which we reach our decision is not legislating; it is judging and providing guidance for courts to use in future challenges to statutes or regulations, which history tells us will come.\\nFourth, the Chief Justice refers to rediscovering and unleashing \\\"the Lochner monster\\\" if legislative enactments are measured against a standard other than the rational relationship standard. Post at 138. But as discussed above, Texas courts, including this Court, have expressed and applied various standards for considering as-applied substantive due process claims for over a century. And it is those decisions on which the standards we set out today are based. Surely if those cases represented a \\\"monster\\\" running amuck in Texas, this Court would have long ago decisively dealt with it.\\nCourts must extend great deference to legislative enactments, apply a strong presumption in favor of their validity, and maintain a high bar for declaring any of them in violation of the Constitution. But judicial deference is necessarily constrained where constitutional protections are implicated.\\nY. Conclusion\\nThe provisions of the Texas Occupations Code and Commission rules promulgated pursuant to that Code requiring the individual Threaders to undergo at least 750 hours of training in order to obtain a state license before practicing commercial threading violate the Texas Constitution.\\nWe reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings in accordance with this opinion.\\nJustice Willett filed \\u00e1 concurring opinion, in which Justice Lehrmann and Justice Devine joined.\\nJustice Boyd filed a concurring opinion.\\nChief Justice Hecht filed a dissenting opinion, in which Justice Guzman and Justice Brown joined.\\nJustice Guzman filed a dissenting opinion.\\n. The Threaders cite the following to support their position: Khan v. State Bd. of Auctioneer Exam'rs, 577 Pa. 166, 842 A.2d 936, 946-48 & n.7 (2004) (upholding auctioneer regulations designed to prevent fraud); OMYA, Inc. v. Town of Middlebury, 171 Vt. 532, 758 A.2d 777, 780 (2000) (upholding commercial traffic limits that reduced congestion, pollution, and property damage); Peppies Courtesy Cab Co. v. City of Kenosha, 165 Wis.2d 397, 475 N.W.2d 156, 158-59 (1991) (striking down taxicab dress code because it lacked a substantial relation to improving city's public image); Katz v. S.D. State Bd. of Med. & Osteopathic Exam'rs, 432 N.W.2d 274, 278-79 & n.6 (S.D.1988) (upholding medical-practice regulations designed to prevent malpractice and fraud); Louis Finocchiaro, Inc. v. Neb. Liquor Control Comm'n, 217 Neb. 487, 351 N.W.2d 701, 704-06 (1984) (strildng down liquor wholesale price controls because they lacked any substantial relationship to public welfare); Myrick v. Bd. of Pierce Cnty. Comm'rs, 102 Wash.2d 698, 677 P.2d 140, 143-47 (1984) (en banc), amended by 102 Wash.2d 698, 687 P.2d 1152 (strildng down most provisions of massage parlor regulations); Red River Constr. Co. v. City of Norman, 624 P.2d 1064, 1067 (Okla.1981) (striking down municipal ordinance prohibiting sand trucks from using certain streets because the ordinance actually increased traffic and the risk of accidents); Rockdale Cnty. v. Mitchell's Used Auto Parts, Inc., 243 Ga. 465, 254 S.E.2d 846, 847 (1979) (reversing lower court ruling that zoning requirements were facially unconstitutional, but remanding to allow the plaintiff to show that the requirements had no real and substantial relationship to public health and safety); In re Fla. Bar, 349 So.2d 630, 634-35 (Fla.1977) (per curiam) (rejecting maximum contingency-fee schedule that failed to meaningfully address problem of excessive fees); McAvoy v. H.B. Sherman Co., 401 Mich. 419, 258 N,W.2d 414, 422, 427-29 (1977) (upholding law requiring employers to pay 70% of workers' compensation award while- appeal of the award was pending); Dep't for Natural Res, & Envtl. Prot. v. No. 8 Ltd. of Va., 528 S.W.2d 684, 686-87 (Ky.1975) (striking down law that conditioned the grant of strip-mining permits on obtaining the surface owner's consent because it was ineffective as an environmental-protection measure); Hand v. H & R Block, Inc., 258 Ark. 774, 528 S.W.2d 916, 923 (1975) (striking down minimum price for franchise agreements because it bore no relation to public health and safety); Leetham v. McGinn, 524 P.2d 323, 325 (Utah 1974) (striking down law restricting cosmetologists to women's hair); Md. State Bd. of Barber Exam'rs v. Kuhn, 270 Md. 496, 312 A.2d 216, 224-25 (1973) (same); Colo ex rel. Orcutt v. Instantwhip Denver, Inc., 490 P.2d 940, 943-45 (Colo.1971) (striking down ban on so-called \\\"filled milk\\\" products because the ban bore no relationship to protecting public safety or preventing fraud); Brennan v. Ill. Racing Bd., 42 Ill.2d 352, 247 N.E.2d 881, 882-84 (1969) (striking down regulation that conditioned a horse trainer's license on his horses' drug-testing results); Coffee-Rich, Inc. v. Comm'r of Pub. Health, 348 Mass. 414, 204 N.E.2d 281, 286-89 (1965) (strildng down law banning the sale of imitation coffee cream because the law did not prevent fraud or market confusion); Zale-Las Vegas, Inc. v. Bulova Watch Co., 80 Nev. 483, 396 P.2d 683, 691-93 (1964) (striking down law that bound third parties to non-compete provisions in private contracts because the law did not promote competition); Berry v. Koehler, 84 Idaho 170, 369 P.2d 1010, 1014-15 (1961) (upholding regulation of dental prosthetics as licensed dentistry because licensure meaningfully protected the public); Christian v. La Forge, 194 Or. 450, 242 P.2d 797, 804 (1952) (en banc) (striking down fixed barbering prices because they only benefitted barbers, not the public).\\n. As to procedural due process relationships between the Fourteenth Amendment and Article I, \\u00a7 19, see City of Sherman v. Henry, 928 S.W.2d 464, 472-73 & n.5 (Tex. 1996) (citing Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995)), and Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249, 252-53 (1887).\\n. See, e.g., Tex. Power & Light Co. v. City of Garland, 431 S.W.2d 511, 517-20 (Tex.1968) (holding ordinance must be reasonable exercise of city's police power, meaning ordinance must directly promote the general health, safety, welfare, or morals, and must have a \\\"real and substantial\\\" relation to such purpose); State v. Richards, 157 Tex. 166, 301 S.W.2d 597, 602 (1957) (explaining it is essential that the police power \\\"be used for the purpose of accomplishing, and in a manner appropriate to the accomplishment of, the purposes for which it exists\\\").\\n. The State has regulated the practice of cosmetology since 1935. See Act of Apr. 25, 1935, 44th Leg., R.S., ch. 116, 1935 Tex. Gen. Laws 304, 304-11, repealed by Act of May 13, 1999, 76th Leg., R.S., ch. 388, \\u00a7 1, 6, 1999 Tex. Gen. Laws 1431, 2182-2206, 2439-40 (repealing former Act while also adopting the Occupations Code). The stated intent of the initial legislation was to \\\"prevent the spreading of contagious and infectious diseases.\\\" Id. at 304, 311 (observing that the purpose of the Act was to \\\"protect the public from inexperienced and unscrupulous beauty parlors and beauty culture schools\\\" in response to the public being \\\"daily exposed to disease due to insufficient care as to sanitation and hygiene\\\").\"}"
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+"{\"id\": \"6878338\", \"name\": \"Jamie Alberto IBARRA, Appellant v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Ibarra v. State\", \"decision_date\": \"2015-01-22\", \"docket_number\": \"NO. 14-13-00337-CR\", \"first_page\": \"349\", \"last_page\": \"358\", \"citations\": \"456 S.W.3d 349\", \"volume\": \"456\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T23:59:22.581579+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel consists of Chief Justice Frost and Justices Donovan and Brown.\", \"parties\": \"Jamie Alberto IBARRA, Appellant v. The STATE of Texas, Appellee\", \"head_matter\": \"Jamie Alberto IBARRA, Appellant v. The STATE of Texas, Appellee\\nNO. 14-13-00337-CR\\nCourt of Appeals of Texas, Houston (14th Dist.)\\nOpinion filed January 22, 2015\\nBob Wicoff, Houston, TX, for Appellant.\\nCarly Dessauer, Houston, TX, for Ap-pellee.\\nPanel consists of Chief Justice Frost and Justices Donovan and Brown.\", \"word_count\": \"3489\", \"char_count\": \"21882\", \"text\": \"OPINION\\nJohn Donovan, Justice\\nAppellant, Jamie Alberto Ibarra, appeals his conviction for aggravated assault on a public servant, contending he was denied his right to counsel of his choice, and he received ineffective assistance of counsel. We affirm.\\nI. Background\\nAccording to the record evidence, in November 2010, appellant arrived at the home of Martha Maldonado to see her daughter, Michell Mares, with whom appellant previously had a relationship, When Maldonado told appellant that Mares was not home, appellant continued knocking on the door, insisting on seeing Mares. Because appellant had exhibited harassing behavior in the past, Maldonado called the police.\\nWhen two police officers arrived at Maldonado's home, they observed appellant on the porch, using a cell phone. Appellant stood, removed a handgun from his pocket, and pointed it at his head. Both officers drew their weapons and, while attempting to calm appellant, they moved near their patrol car to seek cover. Appellant refused to put down his gun, and he ran away from the house, hiding behind a truck in a nearby parking lot. Backup officers arrived. Appellant stated he would not put the gun down unless he went down with it, and he fired the gun at an officer who was moving to a secure location in the parking lot. The shot did not hit the officer. A police SWAT team arrived, following appellant as he jumped the fence of the parking lot and ran to another location, breaking into a truck. Appellant was shot and injured after pointing his gun at one of the SWAT team officers.\\nA jury found appellant guilty of the first-degree felony offense of aggravated assault against a public servant, and found two enhancement paragraphs to be true. The jury assessed punishment at fifty years' confinement.\\nII. Complaints Regarding Counsel of Appellant's Choice\\nIn his first issue and second issues, appellant contends he was denied the right to counsel of his choice under the United States Constitution and the Texas Constitution.\\nAbout eight months before the case proceeded to trial in April 2013, appellant filed a handwritten \\\"Motion -to Dismiss Defendant's Attorney of Record, . and Appoint Defendant a Public Defender,\\\" alleging he \\\"employed [counsel] some 20 months previous to the date of the filing of this motion.\\\" Appellant further. asserted counsel had failed to provide \\\"reasonably effective assistance\\\" because appellant had no contact with counsel in the past seven months, and that counsel had \\\"taken no affirmative action to preserve and to protect the valuble (sic) rights of the Defendant.\\\" Appellant's motion alleged counsel told him, \\\"we do not have O.J. Simpson money to pay for expert witnesses on forensic's (sic) and ballistics.\\\" Appellant did not notify the trial court he was indigent or without the financial ability to obtain counsel. Appellant requested the trial court dismiss retained counsel and \\\"appoint a new counsel/Public Defender to act in (sic) behalf of Defendant.\\\" The record does not contain an order in which the trial court disposed of this motion.\\nThe week prior to trial, appellant asked to make a record to renew his complaints regarding counsel, asserting (1) appellant had been asking for counsel to remove himself from the case, (2) appellant's counsel had been \\\"defective and ineffective in filing proper motions,\\\" and (3) appellant had been requesting but had been denied a right to a speedy trial, and he had not \\\"been treated fair.\\\" Appellant complained he had been working with retained counsel \\\"for too long already\\\" and \\\"on the record, he's fired. My family has called him and fired him.\\\" Counsel questioned appellant who admitted there had been numerous trial dates (over a dozen resets), he had refused to speak with counsel for almost a year, he had refused to sign trial reset forms, and he had continually ordered counsel to \\\"Get away, you're fired.\\\" The trial court advised appellant to work with counsel and confirmed retained counsel would continue to represent appellant for purposes of trial.\\nCounsel for appellant filed a written motion to withdraw four days prior to trial, which was heard by the trial court the same day. The trial court noted the case had been pending for a very long time and was preferentially set, made a finding that appellant refused to cooperate with counsel, and denied the motion.\\nAppellant asserts here he was deprived of his constitutional \\\"right to counsel of his choice\\\" because the counsel his family hired was not of his choice, and the trial court should have appointed different counsel.\\nA. Complaint under the United States and Texas Constitutions\\nThe Sixth Amendment to the United States Constitution and the Texas Constitution guarantee a criminal defendant the right to have assistance of counsel. See U.S. Const., amend. VI (providing, \\\"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . and to have the assistance of counsel for his defense\\\"); Tex. Const, art. I, \\u00a7 10 (providing, \\\"In all criminal prosecutions the accused shall have a speedy public trial . and shall have the right of being heard by himself or counsel or both-\\\"); Tex. Code Crim. Proc. Ann. art. 1.05 (West, Westlaw through 2013 3d C.S.); Gonzalez v. State, 117 S.W.3d 831, 836-37 (Tex.Crim.App.2003). An element of this constitutional right to assistance of counsel is the right of a defendant who does not require appointed counsel to choose who will represent him. See United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S.Ct. 2557, 2561, 165 L.Ed.2d 409 (2006); Gonzalez, 117 S.W.3d at 836-37. But, this right is not absolute. See Gonzalez-Lopez, 548 U.S. at 144, 126 S.Ct. at 2561; Gonzalez, 117 S.W.3d at 837; see also Wheat v. U.S., 486 U.S. 153, 158-59, 108 S.Ct. 1692, 1697-98, 100 L.Ed.2d 140 (1988) (\\\"[W]hile the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.\\\"). For example, a defendant has no right to be represented by an advocate who is not a member of the bar, an attorney whom he cannot afford or whom declines to represent him, or an attorney who has a previous or ongoing relationship with an opposing party. See Gonzalez, 117 S.W.3d at 837.\\nWhile there is a strong presumption in favor of a defendant's right to retain counsel of choice, this presumption may be overridden by other important considerations relating to the integrity of the judicial process and the fair and orderly administration of justice. Id.; see also Gonzalez-Lopez, 548 U.S. at 152, 126 S.Ct. at 2566-67 (stating \\\"(w]e have recognized a trial court's wide latitude in balancing the right to counsel of choice against the needs of fairness and against the demands of its calendar.\\\") (citations omitted); Ex parte Windham, 634 S.W.2d 718, 720 (Tex.Crim.App.1982) (listing factors to be weighed in balancing defendant's right to retained counsel of choice against trial court's need for prompt and efficient administration of justice). Nonetheless, when a trial court unreasonably or arbitrarily interferes with the defendant's right to choose retained counsel, its actions rise to the level of a constitutional violation. See Gonzalez, 117 S.W.3d at 837.\\nIn the case under review, appellant's family apparently retained a lawyer on his behalf to represent him. In his motion to dismiss, and at several hearings, appellant expressed dissatisfaction with this lawyer and a desire to terminate this lawyer's representation of appellant. The record also reflects that appellant refused on various occasions to communicate with his lawyer about his case. Nonetheless, the record does not reflect that appellant or any other person on his behalf took any steps to retain another lawyer to represent appellant. Appellant did not request additional time to attempt to retain another lawyer, nor did appellant state that he no longer could afford retained counsel. Appellant did not express any desire to represent himself. Instead, appellant asked the trial court to appoint a lawyer to represent him, but appellant did not assert that he was indigent or submit proof that he was indigent. Appellant had an opportunity to retain a different lawyer, and appellant had no right to be represented by a court-appointed lawyer of his choosing. See Gonzalez-Lopez, 548 U.S. at 151, 126 S.Ct. at 2565; Dunn v. State, 819 S.W.2d 510, 520 (Tex.Crim.App.1991); see also Robinson v. State, 240 S.W.3d 919, 922 (Tex.Crim.App.2007) (holding a trial court is free to disregard any pro se motions presented by a defendant who is represented by counsel). We conclude that the trial court did not unreasonably or arbitrarily interfere with appellant's right to choose retained counsel. See Gonzalez, 117 S.W.3d at 837-46.\\nTo the extent appellant complains that the trial court violated his rights under the United States Constitution and the Texas Constitution by failing to appoint counsel to represent him, that complaint lacks merit because a trial court does not have a duty to appoint counsel until the defendant shows he is indigent. See Gray v. Robinson, 744 S.W.2d 604, 607 (Tex.Crim.App.1988). A trial court has no duty to appoint counsel when a defendant has \\\"managed to retain counsel\\\" or \\\"has made no showing of indigency.\\\" Id.; Easily v. State, 248 S.W.3d 272, 281 (Tex.App.Houston [1st Dist.] 2007, pet. refd). Neither in his motion, nor in his pre-trial exchange with the trial court, did appellant claim to be indigent, and he made no showing that he was indigent. See Gray, 744 S.W.2d at 607.\\nB. Complaint under the Texas Code of Criminal Procedure\\nUnder his second issue, appellant also complains the trial court erred in refusing to allow his counsel to withdraw, not inquiring of his indigency, and not appointing counsel under Texas Code of Criminal Procedure Article 1.051. See Tex. Code Crim. Proc. Ann. art. 1.051 (West 2014).\\nWe apply an abuse of discretion standard to determine whether the trial court erred in denying appellant's counsel motion to withdraw. King v. State, 29 S.W.3d 556, 566 (Tex.Crim.App.2000). If the ruling falls within the \\\"zone of reasonable disagreement,\\\" we must affirm the trial court. See Gonzalez, 117 S.W.3d at 836-37; Hobbs v. State, 359 S.W.3d 919, 926 (Tex.App.-Houston [14th Dist.] 2012, no pet.). The trial court has discretion to determine whether withdrawal should be granted, balancing the matters asserted with the potential for obstruction to the judicial process or interference with the administration of justice. King, 29 S.W.3d at 566; see also Coleman v. State, 246 S.W.3d 76, 86 (Tex.Crim.App.2008) (approving of denial of change in counsel where delay in the administration of justice would have resulted). Appellant's counsel filed a motion to withdraw less than a week before trial. Given the proximity of the trial setting, the length of time the case had been pending, and appellant's failure to take steps to retain another lawyer or submit proof of indigency, the trial court did not abuse its discretion in denying counsel's motion to withdraw. See King, 29 S.W.3d at 566; Hobbs, 359 S.W.3d at 926-27.\\nAppellant also asserts that the trial court should have followed the dictates of Article 1.051(b), (c) and was required to appoint counsel to represent him. That statute provides in pertinent part as follows:\\n(b) . \\\"indigent\\\" means a person who is not financially able to employ counsel.\\\" (c) An indigent defendant is entitled to have an attorney appointed to represent him....\\nTex. Code Crim. Proc. Ann. art. 1.051. In the trial court, although appellant requested, appointment of counsel, he did not assert he was indigent, make any showing that he was indigent, or request a determination of indigency. A trial court does not have a duty to appoint counsel until the defendant shows he is indigent. See Gray, 744 S.W.2d at 607; Easily, 248 S.W.3d at 281. Because appellant did not show he was indigent, the trial court was not required by Article 1.051 to appoint counsel to represent him, and thus the trial court did not err in failing to appoint counsel. See Gray, 744 S.W.2d at 607; Easily, 248 S.W.3d at 281.\\nAppellant also contends that, after the trial court was made aware counsel was not his attorney of choice and had been fired and that appellant wanted the trial court to appoint counsel, it was the trial court's duty to inquire into whether appellant was indigent, that is, not financially able to employ counsel. The parties have not cited, and research has not revealed, any statute or legal authority addressing this issue. We conclude that appellant has not shown that the trial court erred in failing to inquire as to whether he was indigent. The trial court was not required to conduct an inquiry on its own motion as to whether appellant was indigent. See Whitehead v. State, 130 S.W.3d 866, 874 (Tex.Crim.App.2004); Gray, 744 S.W.2d at 607; Easily, 248 S.W.3d at 281.\\nHaving rejected. the arguments under appellant's first and second issues, we overrule these issues.\\nII. Claim Regarding Ineffective Assistance of Counsel\\nIn his third issue, appellant contends he was denied effective assistance of-counsel at the punishment phase of the trial.\\nA. Standard of review and applicable law\\nTo prevail on an ineffective-assistance claim, appellant must establish (1) trial counsel's representation fell below the objective standard of reasonableness, based on prevailing professional norms, and (2) there is a reasonable probability that the result of the proceeding would have been different but for counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 688-92, 104 S.Ct. 2052, 2065-2067, 80 L.Ed.2d 674 (1984); see Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex.Crim.App.1986) (holding Strickland standard applies to ineffective-assistance claims under Texas Constitution).\\nWe indulge a strong presumption that counsel's actions fell within the wide range of reasonable professional behavior and were motivated by sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). Thus \\\"the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' \\\" Thompson, 9 S.W.3d at 812. The presumption is overcome only when evidence of ineffective assistance is \\\"firmly founded and affirmatively demonstrated in the record.\\\" Melancon v. State, 66 S.W.3d 375, 378 (Tex.App.-Houston [14th Dist.] 2001, pet. refd) (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996)). The totality of the representation is the appropriate context; counsel is not to be judged on isolated portions of his representation. Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Our review of counsel's performance is highly deferential, beginning with the strong presumption counsel's actions were reasonably professional and motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994).\\nWhere there is no record explaining the underlying reasons for counsel's conduct, we will not speculate about them. Perez v. State, 56 S.W.3d 727, 731 (Tex.App.-Houston [14th Dist.] 2001, pet. refd) (citing Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.)); see also Ex parte Varelas, 45 S.W.3d 627, 632 (Tex.Crim.App.2001). The presumption is not rebutted where the record is silent as to counsel's rationale for his trial strategy. Perez, 56 S.W.3d at 732. We will not find ineffective assistance unless counsel's conduct was \\\"so outrageous that no competent attorney would have engaged in it.\\\" Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005).\\nB. Analysis\\nAppellant contends his counsel performed deficiently in two respects: (1) by failing to object to the testimony of Cynthia Glenn, a juvenile probation officer for Harris County, and (2) failing to object to purportedly improper jury argument.\\n1. Failure to object to Glenn's testimony\\nGlenn testified that, in her role as a juvenile probation officer, she interviews juveniles to obtain a sense of their family and school dynamic. She reviews the juvenile offense tracing (\\\"JOT\\\") reports to understand what occurred with the juveniles and what they understood. She does not interview them about guilt or innocence. The interviews help determine if the juvenile should be certified as an adult relative to the charges.\\nIn 1997, Glenn reviewed appellant's JOT concerning a robbery in which he was involved. At that interview, Glenn learned appellant pointed a gun at someone to commit a robbery of a bicycle and other property. Appellant stated on the day of the 1997 arrest he was \\\"high on marijuana\\\" and had \\\"drunk some alcohol.\\\" Prior to this arrest, appellant had been arrested for marijuana possession. Appellant admitted he associated with the Barrio Denver Harbor Click gang. Glenn recalled appellant did not appear to be taking the robbery charge seriously; he stated the gun used in the robbery was not loaded, so it did not appear to Glenn that his actions were serious or important to him.\\nFirst, appellant urges it was \\\"elementary\\\" that Glenn could not \\\"admissibly read\\\" from a juvenile offense report, and it was improper to allow testimony from her about her conversations with appellant. See Tex. R. Crim. App. Evid. 801, 802. Even if this testimony were improper and would have been excluded upon the objection of appellant's counsel, in light of evidence of appellant's prior convictions and the evidence offered in the guilt-innocence phase, which was also admitted in the punishment phase, we conclude that appellant has not shown that there is a reasonable probability that the result of the punishment phase would have been different if this testimony had not been admitted.\\nNext, appellant contends counsel should have asked for a hearing to test the admissibility under Texas Family Code Section 51.095 of appellant's statements to Glenn. See Tex. Fam. Code \\u00a7 51.095(b)(1), (2) (West 2011). Statements of a child are not considered inadmissible if the statement does not stem from an interrogation or, if voluntary and they have a bearing on the credibility of the child as a witness, or if recorded. See id. Appellant has not shown these statements were inadmissible. Glenn's testimony suggests the statements were made in the context of an interview. There was no suggestion of custodial interrogation. See Payne v. State, 579 S.W.2d 932, 933 (Tex.Crim.App. [Panel Op.] 1979) (holding statements made when not in custody are admissible).\\n2. Failure to object to jury argument\\nLastly, appellant complains counsel failed to object during closing argument when the State mentioned information related to prior convictions in the juvenile offense reports.\\nClosing arguments are made to assist the jury in its analysis of the evidence presented at trial in order to reach a just determination. See Temple v. State, 342 S.W.3d 572, 602-603 (Tex.App.-Houston [14th Dist.] 2010), aff'd 390 S.W.3d 341 (Tex.Crim.App.2013). Jury argument may encompass a summation of the evidence, reasonable deductions which can be drawn from the evidence, answers to opposing counsel's argument, and a plea for law enforcement. Id. (citing Brown v. State, 270 S.W.3d 564, 570 (Tex.Crim.App.2008)). The record reveals the prosecutor properly summarized the evidence adduced at trial, asked the jury to consider appellant's criminal background in assessing punishment, and responded to opposing counsel's argument. An attorney's failure to object to proper argument cannot be ineffective assistance. See Richards v. State, 912 S.W.2d 374, 379 (Tex.App.-Houston [14th Dist.] 1995, pet. ref d).\\nIn summary, having rejected all of appellant's ineffective-assistance claims, we overrule his third issue.\\nWe affirm the trial court's judgment.\\n. See Tex. Penal Code Ann. \\u00a7 22.01(a)(2), (b)(1); 22.02(a)(2), (b)(2)(B) (West 2011) (providing that person commits aggravated assault, as a first-degree felony, if he intentionally and knowingly threatens with imminent bodily injury a person the actor knows is a public servant, while the public servant is lawfully discharging an official duty, and the actor uses or exhibits a deadly weapon).\\n. Appellant attempted to appeal the orders denying motions to recuse in Cause Nos. 14-12-01152-CR and .14-12-00152-CR, which we dismissed because they were interlocutory. In his appellate brief, appellant makes no complaint about them.\\n. Appellant did not raise in his motion for new trial the ineffective-assistance claim. While the general rule is an alleged error must be first brought to the attention of the trial court before it can be heard on appeal, an ineffective-assistance claim will generally not be foreclosed because of an appellant's inaction at trial. See Robinson v. State, 16 S.W.3d 808, 809 (Tex.Crim.App.2000).\\n. 1997 robbery (sentence of two years in TDC), 1999 misdemeanor possession of marijuana, and criminal trespass, 2000 misdemeanor possession of marijuana, 2004 felony possession of over 400 grams of cocaine (sentence of 15 years in TDC), and 2011 misdemeanor trespass.\\n. Evidence included appellant's harassment of Maldonado, pointing his gun at and running away from police pfficers, disobeying their orders, firing his gun, and his inability or refusal to take advantage of numerous offers of second chances.\"}"
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+"{\"id\": \"7087695\", \"name\": \"Dimas MORENO, Appellant v. The STATE of Texas\", \"name_abbreviation\": \"Moreno v. State\", \"decision_date\": \"2013-12-11\", \"docket_number\": \"No. PD-1731-12\", \"first_page\": \"284\", \"last_page\": \"289\", \"citations\": \"415 S.W.3d 284\", \"volume\": \"415\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T21:46:49.120510+00:00\", \"provenance\": \"CAP\", \"judges\": \"COCHRAN, J., filed a concurring opinion.\", \"parties\": \"Dimas MORENO, Appellant v. The STATE of Texas.\", \"head_matter\": \"Dimas MORENO, Appellant v. The STATE of Texas.\\nNo. PD-1731-12.\\nCourt of Criminal Appeals of Texas.\\nDec. 11, 2013.\\nDavid Crook, Lubbock, TX, for Appellant.\\nKollin Shadle, Assistant District Attorney, Lubbock, TX, Lisa C. McMinn, State\\u2019s Attorney, Austin, for The State.\", \"word_count\": \"2090\", \"char_count\": \"13494\", \"text\": \"OPINION\\nHERVEY, J.,\\ndelivered the opinion of the unanimous Court.\\nIn this case, a magistrate issued a warrant to search Appellant's house for crack cocaine based on an affidavit detailing a controlled purchase in which police used a reliable confidential informant to purchase narcotics through an unknown third party. The third party was not aware of the police operation. However, because there was no information on the credibility or reliability of the unknowing third party, Appellant argues that the magistrate could not have concluded that there was probable cause to believe that the crack cocaine came from Appellant's house. Because we conclude that the affidavit provided a substantial basis for the magistrate to find probable cause, we affirm.\\nI.\\nLubbock Police initially came to suspect that Appellant, Dimas Moreno, was distributing narcotics from his home when they received a tip from the Clovis, New Mexico Police Department. Acting on this tip, officers orchestrated a controlled purchase of drugs from Appellant. Affi-ant-Officer Snodgrass averred the details of this operation in a sworn affidavit:\\nWithin the past 72 hours a confidential informant was able to make controlled purchase of suspected crack cocaine from said residence. During this operation I met with the confidential informant face to face. The confidential informant was searched prior to and after the controlled purchase. No narcotics or contraband was [sic] found on the confidential informant during these searches. Constant surveillance was maintained on the confidential informant during the transaction. The confidential informant made contact with an unknowing participant to purchase the crack cocaine the unknowing participant advised the confidential informant that he/ she would have to go to said residence to pick up the crack cocaine, [sic] The surveillance team observed the unknowing participant leave the designated meet location and travel to said residence. The unknowing participant went into said residence and returned to his/her vehicle a few minutes later. The unknowing participant returned to the designated location and met with the confidential informant again and provided the confidential informant with the crack cocaine. The unknowing participant did not stop at any other location travelling [sic] to and from said residence. The unknowing participant was under constant visual surveillance. I took custody of the narcotics after the completion of the operation. I am able to recognize crack cocaine and other illicit and controlled substances. The suspected crack cocaine that was purchased was field tested and tested positive for cocaine. Said confidential informant is able to recognize crack cocaine and other controlled substances. Said confidential informant has given information in the past to the Lubbock Police Department Narcotics Division on previous occasions. Said confidential informant has proven to be credible and reliable.\\nOn the basis of these facts, the magistrate issued a warrant to search Appellant's residence for crack cocaine and any other related contraband. Police executed the warrant, found the drugs, and arrested Appellant. Appellant was subsequently charged with possession with intent to deliver a controlled substance in an amount of four or more but less than 200 grams. See Tex. Health & Safety Code \\u00a7 481.112(d) & 481.134(c).\\nAppellant filed a motion to suppress, challenging the sufficiency of the affidavit. He claimed that there could be no probable cause when an affidavit describes a controlled purchase in which an unidentified individual of unknown credibility and reliability actually bought the drugs. The trial court held a hearing and denied the motion. Appellant preserved his right to appeal, pled guilty, and was sentenced to fifteen years' confinement.\\nOn appeal, Appellant raised the same suppression claim. The court of appeals affirmed, concluding that the affidavit was sufficient because probable cause was based upon police observations rather than upon any statements made by the unknowing participant. Moreno v. State, No. 07-11-0248-CR, 2012 WL 5511955, at *3 (Tex.App.-Amarillo Nov. 14, 2012) (per curiam) (mem.op.) (not designated for publication).\\nTo support its holding, the court relied on Bibbs v. State, No. 07-11-00064-CR, 2011 WL 4104878 (Tex.App.-Amarillo Sept. 15, 2011, no pet.) (mem.op.) (not designated for publication) because Bibbs presented \\\"almost identical facts involving the use of an unidentified participant....\\\" Moreno, 2012 WL 5511955, at *3. Bibbs, in turn, relied on Carrillo v. State, 98 S.W.3d 789 (Tex.App.-Amarillo 2003, pet. ref'd), a published opinion, for the proposition that a probable-cause affidavit was not factually defective when police observations were sufficient to uphold the magistrate's finding of probable cause.\\nII.\\nTo issue a search warrant, the magistrate must first find probable cause that a particular item will be found in a particular location. Rodriguez v. State, 232 S.W.3d 55, 60 (Tex.Crim.App.2007). This process requires that the magistrate to \\\"make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity\\\" and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.\\\" Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).\\nAs a reviewing court, we apply a highly deferential standard to the magistrate's determination because of the constitutional preference that searches be conducted pursuant to a warrant. Id. at 236, 103 S.Ct. 2317; State v. McLain, 337 S.W.3d 268, 271 (Tex.Crim.App.2011). Accordingly, our duty \\\"is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed\\\" based on the four corners of the affidavit and reasonable inferences therefrom. Gates, 462 U.S. at 238-39, 103 S.Ct. 2317 (internal quotation marks and citations omitted); Cassias v. State, 719 S.W.2d 585, 587-88 (Tex.Crim.App.1986).\\nIII.\\nDespite Appellant's arguments to the contrary, the court of appeals held that the affidavit was sufficient because probable cause was based, not on the statements of the unknowing participant, but on the observations of the police and the reasonable inferences therefrom. Moreno, 2012 WL 5511955, at *3. That is, probable cause was based on the constant surveillance by police of the unknowing participant and the reasonable inference that the unknowing participant went to Appellant's house to get the drugs. See id. To support its holding, the court of appeals relied on Bibbs (which in turn relied on Carrillo).\\nIn Carrillo, an undercover officer met a \\\"subject,\\\" who then told the officer that she would go to the appellant's apartment to buy the cocaine. Carrillo, 98 S.W.3d at 792. The officer followed the subject and waited outside while she purchased the cocaine inside the apartment. Id. She then delivered the cocaine to the officer. On the basis of those facts, a magistrate issued a warrant to search the appellant's apartment. Id. The Carrillo Court con- eluded that the only reasonable inference that could be drawn from these facts is that the subject obtained the cocaine from the appellant's house. Id. at 793.\\nThe issue in Carrillo, as in this case, was whether a probable-cause affidavit describing a \\\"controlled purchase\\\" performed by an individual whose credibility or reliability were unknown was sufficient to sustain a probable-cause determination. In analyzing this issue, the Carrillo Court first noted that the initial question was whether the affidavit was based on the informant's statements or police observation independent of those statements. Id. The basis for the court's disposition of the case was unclear but our reading of Camilo leads us to believe that the court held that the affidavit was sufficient based on the observations of the officer and the reasonable inferences derived therefrom.\\nUnder the facts of this case, we agree with the court of appeals that the police observations of the controlled purchase and the reasonable inferences therefrom were sufficient to support a finding of probable cause. The affidavit in this case states that Lubbock police officers initially received information from Clovis law enforcement \\u2014 a reliable source \\u2014 that Appellant was distributing narcotics from his residence. To corroborate this tip, officers enlisted the help of a confidential informant (\\\"Cl\\\"), who was familiar with cocaine deals and had proven to be reliable and credible, to conduct a controlled purchase of crack cocaine from Appellant. The Cl was first searched to ensure that he did not have any contraband on his person prior to the transaction. Then, a police surveillance team observed the Cl make contact with the unknowing participant. This individual told the Cl that he would go to Appellant's house to pick up the crack cocaine. Police observed the individual go to Appellant's house, enter, and exit a few minutes later. The unknowing participant then drove straight to the predesignated location and delivered the crack cocaine to the Cl.\\nIt was reasonable for the magistrate to infer that the unknowing participant obtained the crack cocaine from Appellant's residence. See Gates, 462 U.S. at 238, 103 S.Ct. 2317. Indeed, as the Supreme Court noted in Gates, probable cause \\\"does not deal with hard certainties, but with probabilities.\\\" Id. at 231, 103 S.Ct. 2317. It is based on \\\"common-sense conclusions about human behavior\\\" formulated by \\\"practical people.\\\" Id. Although it is possible that the third party obtained the cocaine from some other source as Appellant contends, Appellant presents no persuasive argument as to why the magistrate's inference that the third party bought the crack cocaine from Appellant was unreasonable. Additionally, unlike a confidential informant, the unknowing participant in this case appeared to be unaware of his participation in the police-conducted controlled purchase and, therefore, had no apparent motive to engage in subterfuge to mislead the police. Further, Appellant presents us with no facts to indicate that the unknowing participant had such a motive.\\nEven if the credibility or reliability of the unknowing participant were essential to the probable-cause determination in this case, the unknowing participant's statements may be deemed reliable because they were made by the participant as \\\"one of the actors in the crime in the nature of admission against interest.\\\" Spinelli v. United States, 393 U.S. 410, 425, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) (White, J., concurring).\\nIV.\\nAccordingly, we agree that the magistrate had a substantial basis for determining that there was a fair probability that crack cocaine would be found at Appellant's residence, and we affirm the judgment of the court of appeals.\\nCOCHRAN, J., filed a concurring opinion.\\n. The relevant portion of the affidavit states: Inv. Chavez of the City of Lubbock Police Department Narcotics Division advised me that he had received information within the past 90 days from the Clovis, NM Narcotics Division in reference to Moreno, Dimas Jr. distributing illicit narcotics from Lubbock to Clovis, NM. The address that the Clovis, NM narcotics division provided Inv. Chavez was 114 Ave V Lubbock, Lubbock County TX.\\n. In its opinion, the court of appeals erroneously stated that Appellant was charged with possession of a controlled substance in an amount between \\\"two hundred and four hundred grams.\\\"\\n. Rule 47.7(a) of the Texas Rules of Appellate Procedure provides, \\\"Opinions and memorandum opinions not designated for publication by the court of appeals under these or prior rules have no precedential value but may be cited with the notation, '(not designated for publication).' \\\" Tex.R.App. P. 47.7(a).\\n. See United States v. Ventresca, 380 U.S. 102, 110-11, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (explaining that in contrast to tips from \\\"unreliable anonymous informers,\\\" the \\\"observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant....\\\"). In this case, Clovis law enforcement and Lubbock police officers were working on a common investigation regarding Appellant's distribution of cocaine.\"}"
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+"{\"id\": \"7318523\", \"name\": \"Frank P. HERNANDEZ, Appellant, v. SOVEREIGN CHEROKEE NATION TEJAS, Appellee\", \"name_abbreviation\": \"Hernandez v. Sovereign Cherokee Nation Tejas\", \"decision_date\": \"2011-03-31\", \"docket_number\": \"No. 05-09-00535-CV\", \"first_page\": \"162\", \"last_page\": \"179\", \"citations\": \"343 S.W.3d 162\", \"volume\": \"343\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T19:18:27.998356+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Justices O\\u2019NEILL, MARTIN RICHTER, and LANG-MIERS.\", \"parties\": \"Frank P. HERNANDEZ, Appellant, v. SOVEREIGN CHEROKEE NATION TEJAS, Appellee.\", \"head_matter\": \"Frank P. HERNANDEZ, Appellant, v. SOVEREIGN CHEROKEE NATION TEJAS, Appellee.\\nNo. 05-09-00535-CV.\\nCourt of Appeals of Texas, Dallas.\\nMarch 31, 2011.\\nSupplemental Opinion April 27, 2011.\\nCharles W. McGarry, Law Office of Charles McGarry, Dallas, for Appellant.\\nWilliam Lewis Sessions, The Sessions Law Firm, Dallas, for Appellee.\\nBefore Justices O\\u2019NEILL, MARTIN RICHTER, and LANG-MIERS.\", \"word_count\": \"7659\", \"char_count\": \"48031\", \"text\": \"OPINION\\nOpinion By\\nJustice MARTIN RICHTER.\\nAppellee Sovereign Cherokee Nation Tejas (SCNT) sued appellant Frank P. Hernandez alleging fraud, breach of fiduciary duty, and other claims. The trial court struck Hernandez's pleadings as a discovery sanction, and the case was submitted to a jury to determine damages. The jury answered questions awarding actual and exemplary damages to SCNT, and the trial court entered judgment for SCNT. Hernandez appeals, alleging the sanctions were an abuse of the trial court's discretion. Hernandez also alleges there was no evidence or insufficient evidence to support the jury's findings. For the reasons set forth below, we suggest a remitti-tur of actual and exemplary damages. In all other respects we affirm the trial court's judgment.\\nBackground\\nAccording to its Third Amended Petition, SCNT is \\\"a domestic dependent Indian Nation located within the State of Texas.\\\" Hernandez is an attorney licensed in Texas who served as \\\"attorney general\\\" for SCNT from approximately 1993 to 2005. During that time, he maintained records for SCNT and worked on developing a casino for SCNT known as the Raven Casino Project. SCNT paid legal fees to Hernandez for his services. SCNT's petition alleges Hernandez acted without SCNT's authority in issuing a prospectus, raising money from investors, and purchasing land for the Raven Casino Project. SCNT's operative petition, over 100 pages in length, alleges an elaborate scheme involving Hernandez's use of an account created under the Interest on Lawyers Trust Account (IOLTA) program to convert funds raised for SCNT to his own use.\\nIn 2005, SCNT filed this action against Hernandez and others. SCNT's operative petition alleges causes of action against Hernandez for negligent misrepresentation, fraudulent inducement, fraud, statutory fraud, breach of fiduciary duty, conversion and misappropriation, and libel and slander. The petition also alleges a conspiracy. SCNT sought an accounting, declarative and injunctive relief, and damages, and requested that a constructive trust be imposed. SCNT obtained a temporary injunction on June 17, 2005, prohibiting Hernandez from acting as an agent for SCNT, issuing bonds in its name, using any bank account in its name, or obligating SCNT under any contract, including the Raven Casino Project. On April 16, 2007, the trial court entered a second temporary injunction prohibiting Hernandez from engaging in more than twenty acts relating to SCNT's finances and operation.\\nIn the course of the proceedings in the trial court, claims were asserted among and settled with investors in the Raven Casino Project and another SCNT group organized by Hernandez. Neither the investors nor the competing SCNT group are now making claims to the funds at issue.\\nThroughout the proceedings in the trial court, SCNT sought in discovery to obtain SCNT records kept by Hernandez while he served as attorney general. As detailed more fully below, the trial court held hearings on numerous pretrial motions, including a hearing on October 4, 2007, after which the trial court struck Hernandez's pleadings. The case proceeded to a jury trial on damages. The jury made findings in favor of SCNT, and the trial court entered judgment for SCNT.\\nStandards of Review\\nWe review a trial court's imposition of sanctions for an abuse of discretion. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex.2006) (per curiam). A trial court abuses its discretion if it acts without reference to any guiding rules and principles such that the act was arbitrary or unreasonable. Id. We must conduct an independent review of the entire record in our review of the trial court's action. Id.\\nIn reviewing a verdict for legal sufficiency, we credit evidence that supports the verdict if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). Anything more than a \\\"scintilla of evidence\\\" is legally sufficient to support the jury's finding. Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). To be more than a scintilla, the evidence must rise \\\"to a level that would enable reasonable and fair-minded people to differ in their conclusions.\\\" See Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994).\\nIn reviewing a factual sufficiency challenge, we consider and weigh all the evi dence in support of and contrary to the finding and will set aside the verdict only if the evidence supporting the jury finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam); Ramsey v. Davis, 261 S.W.3d 811, 815 (Tex.App.-Dallas 2008, pet. denied). In making this review this Court is not a fact finder, and we will not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence. Tex. Farmers Ins. Co. v. Cameron, 24 S.W.3d 386, 392 (Tex.App.Dallas 2000, pet. denied).\\nWe review an exemplary damage award under a factual sufficiency standard of review. Ellis Cnty. State Bank v. Keever, 936 S.W.2d 683, 685 (Tex.App.-Dallas 1996, no writ) (citing Moriel, 879 S.W.2d at 30). We are not free to reweigh the evidence and set aside a jury verdict merely because we feel that a different result is more reasonable. Ellis Cnty. State Bank, 936 S.W.2d at 685. Because the award of exemplary damages rests in the jury's discretion, we will not set aside the damages unless after reviewing the entire record, we determine the award is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Id. (citing Moriel, 879 S.W.2d at 30). When determining whether the exemplary damage award is excessive, we consider the following factors: (1) the nature of the wrong; (2) the character of the conduct involved; (3) the degree of culpability of the wrongdoer; (4) the situation and sensibilities of the parties; and (5) the extent to which such conduct offends a public sense of justice and propriety. Id. at 686 (citing Alamo Nat'l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex.1981)); see also Tex. Civ. Prao. & Rem.Code ANN. \\u00a7 41.011 (West 2008) (listing factors). We must detail all of the relevant evidence and explain why that evidence either supports or does not support the exemplary damage award in light of the Kraus factors. Id.; see also Tex. Civ. Prac. & Rem.Code Ann. \\u00a7 41.013 (West 2008) (judicial review of award).\\nSANCTIONS\\nIn one issue with fourteen sub-parts, Hernandez asserts the trial court abused its discretion by striking his pleadings as a discovery sanction. A discovery sanction must be just, that is, it must bear a direct relationship between the improper conduct and the sanction imposed, and it \\\"should be no more severe than necessary to satisfy its legitimate purposes.\\\" Trans-American Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991). Discovery sanctions serve to secure compliance with the discovery rules, deter other litigants from abusing the discovery rules, and punish those who violate the rules. Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 384 (Tex.App.-Dallas 2009, pet. denied).\\nHernandez argues the trial court's October 4, 2007 order striking his pleadings was error because SCNT's motion for sanctions failed to give reasonable notice of the sanctionable conduct alleged; the failure to replead a counterclaim on special exceptions does not justify the death penalty; the contempt and enforcement orders Hernandez allegedly violated were void; the sanctions order does not recite any findings and is not based on evidence; and no lesser sanctions were ever considered by the trial court. After an independent review of the entire record, see American Flood Research, Inc., 192 S.W.3d at 583, we conclude Hernandez's complaints are not well-founded.\\nIn reviewing the trial court's order and considering Hernandez's arguments, we first examine the relationship between the improper conduct and the sanction imposed. See TransAmerican Natural Gas Corp., 811 S.W.2d at 917. The October 4, 2007 order was not the only order entered in the course of the pretrial proceedings. The reporter's record includes transcripts from at least five separate pretrial hearings, some on multiple motions. Beginning in 2005, the trial judge heard and considered a variety of motions from both Hernandez and SCNT regarding discovery and other pretrial matters. In an October 2005 hearing, the trial court imposed a \\\"very strict schedule\\\" for discovery and ordered all parties to make requested documents available for inspection and copying as well as scheduling depositions within a set time period. The trial court at that time refused to impose sanctions or find Hernandez in contempt as requested by SCNT.\\nOn April 13 and 16, 2007, the trial court heard SCNT's request for temporary injunction. At this hearing, the trial court heard SCNT's request to enjoin Hernandez from engaging in a longer and more detailed list of activities in the name of SCNT than were prohibited under the trial court's June 17, 2005 injunction. In a two-day hearing, both SCNT and Hernandez called witnesses and introduced exhibits regarding Hernandez's continued activities in the name of SCNT after the June 17, 2005 injunction had been entered. Hernandez himself testified that after SCNT had terminated him from his position as attorney general, he used SCNT's records to contact approximately 120 SCNT \\\"citizens\\\" for the purpose of holding an election \\\"to facilitate the Cherokees in Texas to be able to rejuvenate the Nation,\\\" and to put forward a plan to go forward with the Raven Casino Project. Hernandez and other witnesses testified that after the June 17, 2005 injunction, an election was held, and Hernandez was elected as SCNT attorney general. Acting as attorney general of the reconstituted group, Hernandez paid himself \\\"for legal services and for managing the operation and construction of the casino\\\" from funds raised for SCNT. He testified he would not agree to cease acting as attorney general of SCNT without an order from the court, and he further testified he thought the trial court did not have authority to enter such an order. After hearing testimony and argument, the trial court granted most of the relief requested.\\nIn June 2007, the trial court heard several motions. The first was SCNT's motion to compel Hernandez's deposition. At a previous hearing on a motion to compel Hernandez's deposition and other matters, the trial court had instructed the parties to confer on a new discovery schedule in light of new allegations made in an amended pleading. Hernandez, however, had refused to appear for his deposition after it had been noticed, arguing the discovery period was closed. At the hearing on SCNT's motion to compel, the trial court noted:\\nLet me just say that this Court believes that all the attorneys should subscribe to the principles contained in the lawyer's creed, and that includes cooperation with each other to schedule depositions. I find it totally unnecessary to be conducting this hearing this morning to schedule your [Hernandez's] deposition . This is a very simple matter that should have been agreed upon.... The deposition will be conducted today at 11:00 o'clock here in the Kaufman County Courthouse. I'm not going to award sanctions at this time on that matter. I do expect the deposition to be taken today.\\nThe trial court denied SCNT's motion for sanctions against Hernandez regarding the deposition.\\nNext, the trial court heard argument and testimony about Hernandez's failure to comply with a prior order of the court to produce documents and other tangible items in his possession, including certain computers, from his tenure as attorney general of SCNT. Hernandez cross-examined SCNT's witnesses and offered his own testimony regarding the requests for production. At the conclusion of testimony and argument, the trial court ordered that the computers be delivered by Hernandez that day, that Hernandez sign an authorization to permit SCNT to obtain bank records, and that he pay $1,000 in sanctions for failure to timely deliver the computers to SCNT.\\nNext, at the June 2007 hearing, the trial court heard testimony and argument regarding whether Hernandez had violated the temporary injunction entered by the court on June 17, 2005. As noted above, that injunction had prohibited Hernandez from using the title of attorney general of SCNT or acting as an agent or representative of SCNT, using any bank account in SCNT's name, or obligating SCNT under any contract. SCNT adduced evidence that Hernandez was present at the 2005 hearing on the injunction and was aware of and understood its terms at the time it was entered. As at the April 2007 hearing, SCNT adduced evidence, through Hernandez's own testimony, that after the 2005 injunction order was entered, Hernandez organized a \\\"reconstituted\\\" SCNT group and continued his activities relating to the Raven Casino Project. SCNT offered evidence that Hernandez had continued to use the same bank account, acknowledging the court's order only by crossing out SCNT's name on some of the checks. Hernandez testified he held himself out as the attorney general of SCNT after the injunction because he was properly elected by the reconstituted SCNT. He argued the election \\\"in effect, set aside the Court's order because now I was authorized to act.\\\" The trial court found Hernandez in contempt. As part of his challenge to the striking of his pleadings, Hernandez argues the contempt order does not support death penalty sanctions because it was void. Hernandez cites numerous reasons the contempt order is void, including denial of due process, denial of the right to counsel, denial of the right to trial by jury, and other issues. Even assuming the contempt order was not properly entered, however, the record does reflect Hernandez's own testimony and argument that he was aware of and understood the court's injunction but intentionally took actions prohibited under it.\\nOn October 4, 2007, the trial court held a hearing on SCNT's motions to enforce the court's prior orders and for contempt. SCNT requested sanctions under rules 13 and 215, Texas Rules of Civil Procedure, including the striking of Hernandez's pleadings, for Hernandez's failure to comply with the trial court's orders. The trial court granted the motion by order dated October 4, 2007. On the same day, the trial court also signed an Order for Enforcement of Contempt Orders and an Order of Commitment. In the Order for Enforcement, the trial court made specific findings to support its order, including Hernandez's willful failure to obey the court's order of June 19, 2007, to deliver two SCNT computer monitors; to deliver a written authorization to SCNT's counsel to obtain relevant bank records; to pay amounts ordered as sanctions; and to serve written responses to interrogatories. The trial court also made detailed findings about Hernandez's failure to comply with its June 19, 2007 order to pay fines and disgorge funds \\\"taken from bank accounts labeled with the name of SCNT.\\\"\\nHernandez makes several complaints about the October 4, 2007 order striking his pleadings. He argues the order \\\"was based solely on the arguments of counsel and contained no findings.\\\" He argues the order does not give reasonable notice of the conduct for which he was to be sanctioned. He complains that after trial, when he filed a response to SCNT's motion for judgment alleging the trial court abused its discretion in striking his pleadings, the trial court entered a \\\"Supplemental Order Granting Plaintiffs Motion for Sanctions\\\" containing detailed findings supporting the striking of Hernandez's pleadings. Citing Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex.1993), Hernandez argues the supplemental order should be disregarded \\\"because the failure to obtain a pretrial ruling on discovery disputes that exist before commencement of trial constitutes a waiver of any sanctions based on that conduct.\\\" Hernandez also argues that lesser sanctions were never considered by the trial court.\\nWe reject Hernandez's arguments. The record, including transcripts of evidentiary hearings and numerous orders, is abundantly clear that the trial court heard evidence regarding the same discovery abuse and violations of court orders multiple times, and attempted to obtain Hernandez's compliance multiple times through imposition of attorneys' fees and contempt of court, both specifically listed in rule 215.2(b) as available sanctions. See Tex.R. Civ. P. 215.2(b). An order issued on the same date as the order striking Hernandez's pleadings detailed Hernandez's violations of court orders and his sanctionable conduct, and the court's supplemental order contains similar findings. We conclude Remington Arms Co. is distinguishable because in that case, there was no hearing or order on pretrial discovery abuse until after trial. See id. Here, the trial court had conducted multiple hearings and entered several orders prior to trial based on Hernandez's conduct.\\nWe conclude there was a direct relationship between the offensive conduct and the sanction imposed. See Cire v. Cummings, 134 S.W.3d 835, 839 (Tex.2004). Discovery sanctions can be used to adjudicate the merits of a party's claims only when the party's hindrance of the discovery process justifies a presumption that its claims lack merit. Id. at 841. The record supports a conclusion that Hernandez intentionally violated the court's orders on multiple occasions. SCNT's allegations of fraud, breach of fiduciary duty, and other claims are directly related to Hernandez's alleged misuse of SCNT funds and unauthorized actions using SCNT's name. The discovery and court orders at issue bore directly on these claims. The trial court concluded the sanctions bore a direct relationship to Hernandez's \\\"repeated acts and omissions in contempt of this Court's duty to enforce its orders and effectuate administration of justice between the parties to this cause,\\\" as the court noted in its supplemental order. The record supports this conclusion, and the trial court acted with reference to guiding rules and principles in reaching it. See Am. Flood Research, Inc., 192 S.W.3d at 583.\\nNext we examine whether the sanction striking Hernandez's pleadings was excessive. A sanction is excessive if lesser sanctions would have served the purposes of compliance, deterrence, and punishment. Tex. Integrated, 300 S.W.3d at 384. The record reveals Hernandez had the opportunity to appear, argue, and testify at numerous hearings during the years prior to the trial court's order striking his pleadings. The trial court signed multiple orders, including orders to produce documents and tangible items and appear for deposition, orders to pay attorneys' fees as sanctions for failure to comply with discovery, and orders to refrain from a variety of actions in the name of SCNT. While the October 2007 order itself does not detail each particular offense or recite particular evidence, the trial court issued both an enforcement order on the same date and a supplemental order after trial detailing Hernandez's violations of court orders and failure to comply with discovery. The record supports the conclusion that Hernandez's improper conduct prevented SCNT from obtaining evidence essential to the presentation of its case and to the refutation of Hernandez's defenses. See Cire, 134 S.W.3d at 841. The record further supports the conclusion that the lesser measures imposed by the trial court had neither deterred Hernandez from continued violations nor achieved his compliance with prior orders of the court. See Tex. Integrated, 300 S.W.3d at 384.\\nBased on our independent review of the entire record, we conclude the sanction imposed by the trial court has a direct relationship to Hernandez's improper conduct and was not excessive. See Stromberger v. Turley Law Firm, 315 S.W.3d 921, 925 (Tex.App.-Dallas 2010, no pet.) (review of entire record revealed no abuse of discretion by trial court's imposing $5,300 in attorney's fees as sanction). Thus, we conclude the trial court did not abuse its discretion in entering the sanctions order. See Am. Flood Research, Inc., 192 S.W.3d at 583. We overrule Hernandez's first issue.\\nJury's Awards of Damages\\nIn his second through seventh issues, Hernandez argues the evidence is legally and factually insufficient to support the jury's awards of damages. In his eighth and ninth issues, he complains the jury's answers to certain questions are in fatal conflict. In his tenth issue, he argues SCNT cannot elect an alternative measure of damages under the jury's verdict.\\nWe first reject Hernandez's eighth and ninth issues complaining of conflicts in the jury's answers. To preserve these issues for appeal, Hernandez was required to object before the jury was discharged. See Medistar Corp. v. Schmidt, 267 S.W.3d 150, 162 (Tex.App.San Antonio 2008, pet. denied). Because he did not do so, and further, because we cannot assume the jury's answers conflict if they can be reconciled, we overrule these issues. See SAS & Assocs., Inc. v. Home Mktg. Servicing, Inc., 168 S.W.3d 296, 303 (Tex.App.-Dallas 2005, pet. denied). The challenged answers (regarding actual damages for fraud, statutory fraud, conversion, and breach of fiduciary duty) all awarded damages within the range of evidence presented at trial, except as noted below, and we are not permitted to disregard the jury's damages award on the basis that the jury's reasoning is unclear. Id.\\nNext, we address Hernandez's complaints about the sufficiency of the evidence to support the jury's specific damage awards. Because SCNT elected the damages awarded by the jury on its fraud claim, we begin our review with that award. In Question 7 of the jury charge, the jury was asked to determine damages for fraud under two measures, \\\"out-of-pocket\\\" and \\\"benefit of the bargain.\\\" The jury determined the out-of-pocket damages to be $1,348,920.75, and the benefit of the bargain damages to be $5 million. SCNT elected the $5 million award, which is included in the trial court's judgment. We conclude that the evidence is legally sufficient to support an award of damages, but we agree with Hernandez that the evidence is factually insufficient to support the amount of the award.\\nThe benefit of the bargain measure of direct damages for fraud \\\"computes the difference between the value as represented and the value received.\\\" Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 775 (Tex.2009). The parties agree the jury included expected profits from the casino in the $5 million award. Under the benefit of the bargain measure, lost profits on the bargain maybe recovered if they are proved with reasonable certainty. Id. at 776 (quoting Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 50 (Tex.1998)); see also Tex. Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.2d 276, 279 (Tex.1994) (party may recover lost profits only if it shows amount of loss by competent evidence with reasonable certainty). It is not necessary that profits should be susceptible to exact calculation; it is sufficient that there be data from which they may be ascertained with a reasonable degree of certainty and exactness. Tex. Instruments, Inc., 877 S.W.2d at 279. At a minimum, however, opinions or estimates of lost profits must be based on objective facts, figures, or data from which the amount of lost profits can be ascertained. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex.1992). Although supporting documentation may affect the weight of the evidence, it is not necessary to produce in court the documents supporting the opinions or estimates. Id.\\nThe evidence offered at trial showed that in 2004 and 2005, Hernandez sold subscriptions and entered into investor agreements for the Raven Casino Project. He deposited $709,343.90 in investor checks made payable to SCNT into an IOLTA trust account he controlled. Also in 2004, Hernandez opened a checking account entitled \\\"Frank P. Hernandez, Attorney at Law Kaufman Project \\u2014 SCNT,\\\" and deposited $639,576.85 in funds received from investors. Investor funds and interest on these two accounts totaled $1,348,920.75. The evidence also showed that $661,572.84 was \\\"spent on real estate,\\\" to purchase the property where the casino was to be located. SCNT also introduced an exhibit entitled \\\"Summary\\u2014 Plaintiffs Damages\\\" showing the difference between the \\\"money received by Frank Hernandez in name of Sovereign Cherokee Nation Tejas\\\" and \\\"money spent on real estate,\\\" in the amount of $687,347.91. Of the remaining investor funds, $195,000.00 was paid to Hernandez, his son, and an employee, including $134,000.00 in checks made payable to Hernandez himself. The evidence also showed a total of $21,666.69 was paid to Chief Grey Wolf and Chief Bear Who Walks Softly, principals of SCNT.\\nSCNT argues that the testimony of Chief Bear Who Walks Softly and Hernandez as to the expected profits from the casino are sufficient to support the jury's findings on the benefit of the bargain damages awarded in Question 7 for fraud. According to Chief Bear, Hernandez represented that SCNT would receive $25,000 per day from the operations of the casino. More detailed projections are included in the prospectus prepared by Hernandez to seek investors in the casino project. Under \\\"gross income projections,\\\" Hernandez calculates income based on the square footage of the casino, the hours of operation, and the number of customers expected. His most conservative estimate is based on \\\"75 persons gaming per hour 8 hours per day\\\" at $25 per person, results in a daily gross of $15,000, a monthly gross of $450,000, and a yearly gross of $5,400,000. These figures did not include projected alcohol and food sales and parking fees, which were estimated separately. Hernandez's projections, however, do not appear to be based on actual data from any specific operations.\\nThe Raven Casino Project never became operational. An enterprise is not prohibited from recovering lost profits merely because it is new. Tex. Instruments, Inc., 877 S.W.2d at 280. But \\\"the mere hope for success of an untried enterprise, even when that hope is realistic, is not enough for recovery of lost profits.\\\" Id. In the Texas Instruments case, the court stated the focus should be on the experience of the persons involved in the enterprise, the nature of the business activity, and the relevant market. Id. Applying these standards, we conclude SCNT's evidence of lost profits is not sufficient to support the jury's award of $5 million in benefit of the bargain damages for fraud. Cf. Bright v. Addison, 171 S.W.3d 588, 602-03 (Tex.App.-Dallas 2005, pet. denied) (expert witness testimony was sufficient to support lost profits where expert used actual data from operating casinos in calculations).\\nWe next consider the evidence to support the jury's answer of $1,348,920.75 to the first part of Question 7, inquiring about out-of-pocket damages for fraud. The record shows the amount awarded by the jury in response to this question was the amount collected by Hernandez in SCNT's name. The record also showed, however, that in presenting its damages to the jury, SCNT subtracted from this amount the $661,572.84 in \\\"payments for real estate\\\" connected with the purchase of the real property for the casino project, claiming a total of $687,347.91 in damages. This latter amount was awarded by the jury in response to Question 1, \\\"loss of value\\\" damages for conversion.\\nHernandez challenges the conversion damages specifically and all amounts of out-of-pocket damages generally by arguing that SCNT's pleadings defeated its right to recover. Hernandez argues that because SCNT is an unincorporated association, and because it pleaded Hernandez had no authority to enter into investor agreements, SCNT would not be bound by the investor agreements or liable to the investors under them. Hernandez cites the \\\"general rule\\\" that \\\"unincorporated associations are not liable on their contracts, which are regarded as the liability of the individuals who sign them.\\\" See, e.g., Pitman v. Lightfoot, 937 S.W.2d 496, 527 (Tex.App.-San Antonio 1996, writ denied). Hernandez argues that the investor agreements were \\\"his personal agreements\\\" as a matter of law; he was personally liable under the agreements and therefore \\\"the money in the accounts was his.\\\" Hernandez concludes SCNT suffered no damages because the money never belonged to it, and this question of law could not be established by the default judgment.\\nWe reject Hernandez's arguments. Assuming SCNT is an unincorporated association, it is nevertheless entitled to bring suit for the purpose of enforcing a substantive right. Tex.R. Civ. P. 28 (\\\"Any . unincorporated association . may sue or be sued in its partnership, assumed or common name for the purpose of enforcing for or against it a substantive right-\\\"). While Hernandez correctly notes that rule 28 does not enlarge the substantive rights of a party, neither does it diminish those rights. See Tex.R. Crv. P. 815 (substantive rights of parties unaffected by construction of rules). Whether or not SCNT would have been liable to third parties for breach of the investor agreements, Hernandez is not relieved of liability to SCNT for his own fraud or other breaches of duty. For example, Hernandez owed duties to SCNT, his client, even though it was an unincorporated association, and breach of those duties could result in damages to SCNT. See, e.g., Tex. DISCIPLINARY Rules Prof'l Conduct R. 1.12 cmt. 2, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A (West 2005) (Tex. State Bar R. art. X, \\u00a7 9) (lawyer employed or retained by organization represents the entity; rule applies to lawyers representing unincorporated associations). Hernandez's duty to his client included a duty of full disclosure, an \\\"affirmative duty to make a full and accurate confession of all his fiduciary activities, transactions, profits, and mistakes.\\\" Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 22 (Tex.App.-Tyler 2000, pet. denied) (citing Montgomery v. Kennedy, 669 S.W.2d 309, 312-14 (Tex.1984)). In soliciting investor funds for the casino project, Hernandez included a statement in the agreements with the investors that funds would be deposited into his IOLTA account, and he would \\\"hold the funds in trust for SCNT for the use and benefit of the SCNT.\\\" The breach of the duty of full disclosure by a fiduciary is tantamount to fraudulent concealment. Chappell, 37 S.W.3d at 22 (citing Willis v. Maverick, 760 S.W.2d 642, 645 (Tex.1988)). Further, \\\"[a]n action will lie for conversion of money when its identification is possible and there is an obligation to deliver the specific money in question or otherwise particularly treat specific money.\\\" Houston Nat'l Bank v. Biber, 613 S.W.2d 771, 774 (Tex.Civ.App.-Houston [14th Dist.] 1981, writ ref'd n.r.e.). The trial court properly submitted damages questions for the jury's determination.\\nBecause we conclude the evidence supports the amount of $687,347.91, minus the $21,666.69 already paid to SCNT's principals, or $665,681.22, and we further conclude the evidence is factually insufficient to support an actual damages award in excess of $665,681.22, we sustain Hernandez's second and third issues to the extent they assert there is insufficient evidence to support an actual damage award in excess of $665,681.22. Therefore, we suggest a remittitur. This Court may suggest remittitur on its own motion when the appellant complains there is insufficient evidence to support an award and the court of appeals agrees, but concludes there is sufficient evidence to support a lesser award. Comstock Silversmiths, Inc. v. Carey, 894 S.W.2d 56, 58 (Tex.App.-San Antonio 1995, no writ) (citing David McDavid Pontiac, Inc. v. Nix, 681 S.W.2d 831, 838 (Tex.App.-Dallas 1984, writ ref'd n.r.e.)); see also Tex.R.App. P. 46.3 (court of appeals may suggest remittitur). As explained by the supreme court in Larson v. Cactus Utility Co., 730 S.W.2d 640, 641 (Tex.1987),\\nIf a court of appeals holds that there is no evidence to support a damages verdict, it should render a take nothing judgment as to that amount. If part of a damage verdict lacks sufficient eviden-tiary support, the proper course is to suggest a remittitur of that part of the verdict. The party prevailing in the trial court should be given the option of accepting the remittitur or having the case remanded.\\nUnder these standards, SCNT should be given the option of accepting the remittitur or having the case remanded to the trial court. See Tex.R.App. P. 46.3; Larson, 730 S.W.2d at 641.\\nIn his sixth issue, Hernandez contends there is no evidence or insufficient evidence to support the jury's award of $2,500,000 as exemplary damages for fraud. Hernandez argues that because the evidence is insufficient to support the jury's award of actual damages, the award of exemplary damages \\\"must likewise be set aside.\\\" Similarly, in his seventh and tenth issues, he challenges the jury's three other awards of exemplary damages. Hernandez does not challenge the jury's affirmative answers to Questions 2, 5, 8, and 11, the predicate questions for awards of exemplary damages.\\nWe must review an award of exemplary damages with careful scrutiny to ensure it is supported by the evidence, and we may vacate the award or suggest a remittitur only if the award is \\\"so factually insufficient or so against the great weight and preponderance of the evidence as to be manifestly unjust.\\\" Khorshid, Inc. v. Christian, 257 S.W.3d 748, 767 (Tex.App.-Dallas 2008, no pet.). As noted above, in order to determine if the exemplary damages awarded were reasonable, we consider the factors set forth in Alamo National Bank v. Kraus, which include the nature of the wrong, the character of the conduct involved, the degree of culpability of the wrongdoer, the situation and sensibilities of the parties concerned, and the extent to which such conduct offends a public sense of justice and propriety. See Ellis Cnty. State Bank, 936 S.W.2d at 686 (citing Kraus, 616 S.W.2d at 910); see also Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 926 (Tex.1998) (court of appeals must explain why evidence does or does not support exemplary damages amount considering Kraus factors; similar requirements found in Tex. Civ. Prac. & Rem.Code Ann. \\u00a7 41.011 and 41.013); Tex. Civ. Prac. & Rem.Code Ann. \\u00a7 41.008 (West 2008) (limitations on amount of recovery of exemplary damages in relation to economic damages).\\nIf an appellate court finds that an award of exemplary damages is excessive, the court may suggest a remittitur. Khorshid, 257 S.W.3d at 757 (citing Tex. R.App. P. 46.3). If the remittitur is timely filed, the court must reform and affirm the trial court's judgment in accordance with the remittitur. Id. If the remittitur is not timely filed, the court must reverse the trial court's judgment. Id.\\nThe judgment awarded the $2,500,000 found by the jury as exemplary damages for fraud. This amount was between the jury's highest exemplary damage award of $5 million for breach of fiduciary duty and its lowest exemplary damage award of $661,572.84 for conversion. We are not free to reweigh the evidence and set aside a jury verdict merely because we feel that a different result is more reasonable. Ellis Cty. State Bank, 936 S.W.2d at 685. Where a jury has probably considered improper items of compensatory damages in assessing exemplary damages, however, exces-siveness may be indicated. Preston Carter Co. v. Tatum, 708 S.W.2d 23, 25 (Tex.App.-Dallas 1986, writ ref'd n.r.e.). As noted, the jury awarded $5 million in benefit of the bargain damages for fraud, improperly considering speculative lost profits, and it is probable the jury also considered the speculative lost profits in assessing exemplary damages. See id. (jury probably considered \\\"improper and highly speculative\\\" elements of damages in assessing exemplary damage amount; therefore, amount of exemplary damages should be reduced).\\nConsidering the Kraus factors, the evidence showed the nature of the wrong was Hernandez's intentional breaches of duty to his client. Although Hernandez's liability on each of SCNT's causes of action was established by default, SCNT introduced evidence regarding Hernandez's breaches of duty, self-dealing, and intent to cause harm. The evidence showed that SCNT and Hernandez had an attorney/client relationship; Hernandez used SCNT's name to raise money for the casino project without informing SCNT; made payments to himself from the funds he raised; sought to establish SCNT as a \\\"domestic dependent Indian nation\\\" until it furthered his own interest to challenge SCNT's standing; and attempted to start a new SCNT organization after SCNT's leadership questioned his actions and the trial court ordered him to cease acting on behalf of SCNT. At trial Hernandez continued to argue SCNT had ratified all of his actions by giving him full authority to manage the casino project, relying on documents that Hernandez himself had drafted. Each time it was asked, the jury found by clear and convincing evidence that Hernandez acted with malice or fraud.\\nThe harm to SCNT, however, was economic rather than physical. See Khorshid, Inc., 257 S.W.3d at 767. The character of the conduct involved was primarily limited to dishonesty and deceit. See id. While the degree of Hernandez's culpability was significant, the evidence showed that the funds Hernandez used were obtained from investors other than SCNT. The primary issue is precluding Hernandez from profiting from his fraud, as well as deterring similar disloyalty on the part of other fiduciaries. See Preston Carter Co., 708 S.W.2d at 24. With respect to the situation and sensibilities of the parties con cerned, the relationship between the parties was fiduciary, but also was a business relationship in which both parties hoped to profit from the plans for the casino. See Khorshid, Inc., 257 S.W.3d at 767; see also Preston Carter Co., 708 S.W.2d at 24-25. In reviewing the extent to which the conduct offends a public sense of justice and propriety, we consider the high loyalty required of a fiduciary, but we also consider that SCNT's economic loss can be recovered through monetary damages. See Preston Carter Co., 708 S.W.2d at 24; Khorshid, Inc., 257 S.W.3d at 767.\\nAfter reviewing the entire record, applying the factors enumerated in Kraus, and considering the amount of compensatory damages properly recoverable, we conclude that exemplary damages are recoverable, but the $2,500,000 awarded to SCNT as exemplary damages in the judgment seems excessive in light of the harm. See Paramount Nat'l Life Ins. Co. v. Williams, 772 S.W.2d 255, 268 (Tex.App.Houston [14th Dist.] 1989, writ denied) (appellate court suggested remittitur where exemplary damages awarded by jury were ten times actual damages, but \\\"basic question\\\" was whether insured or insurer would be charged with negligence of agent). We conclude a reasonable award of exemplary damages would be no more than $665,681.22, equivalent to the amount of actual damages properly recoverable, and that the award of $2.5 million is excessive by $1,834,318.78. See Preston Carter Co., 708 S.W.2d at 25 (suggesting remittitur of exemplary damages where jury probably considered improper items of compensatory damages, but evidence supported some amount of exemplary damages after application of Kraus factors). This amount is approximately the same as the jury's smallest award of exemplary damages; it is reasonably proportional to the actual damages supported by the evidence; and, as detailed above, it considers each of the factors outlined in Alamo National Bank v. Kraus. As with the award of actual damages, we suggest a remittitur in the amount of $1,834,318.78. We otherwise overrule Hernandez's issues challenging the jury's awards of exemplary damages.\\nConclusion\\nWe affirm the trial court's imposition of sanctions and striking of Hernandez's pleadings. We conclude the jury's award of actual damages is excessive in the amount of $683,239.53, and the jury's award of exemplary damages is excessive in the amount of $1,834,318.78, and suggest remittiturs. In accordance with rule 46.3 of the Texas Rules of Appellate Procedure, if appellee files with this Court, within fifteen days of the date of this opinion, a remittitur to $665,681.22 with respect to actual damages, and a remittitur to $665,681.22 with respect to exemplary damages, the trial court's judgment will be modified and affirmed. If the suggested remittiturs are not timely filed, the trial court's judgment will be reversed and the cause will be remanded. In all other respects, we affirm the trial court's judgment.\\nSUPPLEMENTAL OPINION\\nOn March 31, 2011, this Court issued its original opinion in this case, in part suggesting a remittitur to $665,681.22 with respect to the actual damages awarded to appellee Sovereign Cherokee Nation Te-jas, and a remittitur to $665,681.22 with respect to exemplary damages awarded to appellee Sovereign Cherokee Nation Te-jas. This Court's opinion provided that if such remittiturs were filed by appellee within fifteen days of the date of the opinion, the trial court's judgment would be modified and affirmed.\\nOn April 14, 2011, appellee timely filed with the clerk of this Court a Voluntary Consent to Suggestion of Remittiturs. In that filing, appellee requested that this Court modify the trial court's judgment consistent with our opinion and judgment in this matter. Therefore, we issue this supplemental opinion. In accordance with our original opinion of March 31, 2011 and appellee's timely remittiturs, the portions of the trial court's judgment awarding ap-pellee $5,000,000.00 in actual damages and $2,500,000.00 in exemplary damages are reformed to award appellee $665,681.22 in actual damages and $665,681.22 in exemplary damages. See Tex.R.App. P. 46.3. Further, the portions of the trial court's judgment relating to actual damages and exemplary damages are affirmed as reformed. See id. This Court's original opinion remains otherwise in effect.\\n. The actual status of SCNT was hotly disputed by Hernandez at trial. At the time he sought investments in the casino project, he described SCNT's status in the prospectus he drafted as follows:\\nThe SCNT is not a federally recognized Nation, in accordance with the Department of the Interior and the Bureau of Indian Affairs. [BIA] The SCNT is acknowledged by the United States as a \\\"domestic dependent nation\\\" for all purposes. The federal courts and the State of Texas courts recognize the SCNT as a Nation. The U.S. Department of Justice acknowledges that the SCNT is a \\\"domestic dependent Nation\\\" under Cherokee v. Georgia, and that the SCNT is equivalent to a state.\\nThe SCNT has the ability to and does operate as a self-sufficient nation, for all purposes.\\nBefore trial Hernandez sought a writ of mandamus in this Court, complaining that the trial judge did not give full faith and credit to a final judgment of the SCNT court. See In re Chong Son Na & Frank P. Hernandez, No. 05-05-01020-CV, 2005 WL 1777119 (Tex.App.Dallas, July 28, 2005, orig. proceeding) (mem. op.). This Court denied the writ. Id. At trial, however, Hernandez attempted to testify to his opinion that SCNT was not recognized as an Indian nation. SCNT then stipulated it was not a federally- or state-recognized Indian nation or Indian tribe. The trial judge accepted the stipulation, and at first noted that \\\"they are going to be an unincorporated association of individuals,\\\" but then deferred any further ruling on SCNT's status or capacity until the close of evidence, if necessary. (In response to Hernandez's inquiry, \\\"Let me get this clear. Are they, in the Court's ruling, an unincorporated association?\\\", the trial judge responded, \\\"I'm going to defer until the conclusion of all the evidence to rule on that if I need to rule on that, and I'll determine at the close of evidence if I need to rule on that one.\\\"). Other than overruling Hernandez's objection to the definition of SCNT given in the charge (\\\"The terms 'SCNT', 'Sovereign Cherokee Nation Tejas' or 'Plaintiff' shall mean and refer to the Sovereign Cherokee Nation Tejas.\\\"), the trial judge made no further ruling on SCNT's status or capacity. On appeal, Hernandez argues SCNT is an unincorporated association whose members cannot be bound by contracts between the association and any third party. To the extent this argument is relevant to his appeal of the jury's determination of damages, we address it below.\\n. As a general rule, the jury has broad discretion to award damages within the range of evidence presented at trial, so long as a rational basis exists for its calculation. Mayberry v. Tex. Dep't of Agric., 948 S.W.2d 312, 317 (Tex.App.-Austin 1997, writ denied). The jury's findings will not be disregarded merely because its reasoning in arriving at its figures may be unclear. First State Bank v. Keilman, 851 S.W.2d 914, 930 (Tex.App.-Austin 1993, writ denied). The fact that there is nothing in the record to evidence how the jury arrived at a specific amount is not necessarily fatal to the verdict. Mayberry, 948 S.W.2d at 317. Instead, when the evidence supports a range of awards, as opposed to two distinct options, an award of damages within that range may be an appropriate exercise of the jury's discretion. Id.; see also Khorshid, Inc. v. Chris tian, 257 S.W.3d 748, 760 (Tex.App.-Dallas 2008, no pet.).\\n. The record reflects that SCNT disavowed ownership in the real property in question, moved to cancel the notice of lis pendens on file, and \\\"agreed to cooperate with Defendants in the legal transfer of said property to those persons determined to own such property.\\\" The trial court granted an agreed order on plaintiff's motion to cancel the notice of lis pendens, and ownership of the real property is not at issue.\\n. When a party tries a case on alternative theories of recovery and a jury returns favorable findings on two or more theories, the party has a right to judgment on the theory entitling him to the greatest or most favorable relief. Boyce Iron Works, Inc. v. Sw. Bell Tel. Co., 747 S.W.2d 785, 787 (Tex.1988) (citing Hargrove v. Trinity Universal Ins. Co., 152 Tex. 243, 256 S.W.2d 73 (1953)). If the judgment is reversed on appeal, the prevailing party may seek recovery under an alternative theory. Id. We therefore consider the sufficiency of the evidence to support the jury's awards of damages under an alternative theory presented in the charge. See also Beal Bank, S.S.B. v. Schleider, 124 S.W.3d 640, 650-51 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (court of appeals could consider sufficiency of evidence to support alternative theory of negligent misrepresentation after reversal of judgment for fraud).\\n. In its response to Question 3, the jury awarded $661,572.84 in exemplary damages for conversion. In its response to Question 6, the jury awarded $5 million in exemplary damages for breach of fiduciary duty. In its response to Question 12, the jury awarded $2.5 million in exemplary damages for statutory fraud. Each of these answers followed a question in which the jury found Hernandez acted with malice or fraud by clear and convincing evidence.\"}"
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+"{\"id\": \"7321081\", \"name\": \"John L. KENNAMER, Individually, and John L. Kennamer & Mora Kennamer d/b/a K Bar Land & Cattle Company, Appellants, v. The ESTATE OF John Alwin NOBLITT, Deceased, Charles R. Noblitt, Jr., Individually and as Administrator of the Estate of John Alwin Noblitt, Deceased, and Joann Jones, Individually and as Heir of the Estate of John Alwin Noblitt, Deceased, Appellees\", \"name_abbreviation\": \"Kennamer v. Estate of Noblitt\", \"decision_date\": \"2009-07-24\", \"docket_number\": \"No. 01-08-00134-CV\", \"first_page\": \"559\", \"last_page\": \"571\", \"citations\": \"332 S.W.3d 559\", \"volume\": \"332\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T00:49:23.441891+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel consists of Chief Justice RADACE and Justices HIGLEY and NUCHIA.\", \"parties\": \"John L. KENNAMER, Individually, and John L. Kennamer & Mora Kennamer d/b/a K Bar Land & Cattle Company, Appellants, v. The ESTATE OF John Alwin NOBLITT, Deceased, Charles R. Noblitt, Jr., Individually and as Administrator of the Estate of John Alwin Noblitt, Deceased, and Joann Jones, Individually and as Heir of the Estate of John Alwin Noblitt, Deceased, Appellees.\", \"head_matter\": \"John L. KENNAMER, Individually, and John L. Kennamer & Mora Kennamer d/b/a K Bar Land & Cattle Company, Appellants, v. The ESTATE OF John Alwin NOBLITT, Deceased, Charles R. Noblitt, Jr., Individually and as Administrator of the Estate of John Alwin Noblitt, Deceased, and Joann Jones, Individually and as Heir of the Estate of John Alwin Noblitt, Deceased, Appellees.\\nNo. 01-08-00134-CV.\\nCourt of Appeals of Texas, Houston (1st Dist.).\\nJuly 24, 2009.\\nChris R. Lay, Law Office of Robert D. Clements, Jr. and Associates, Robert D. Clements Jr., Robert D. Clements, Jr. & Associates, Otto D. Hewitt III, Hewitt Law Firm, Alvin, TX, for Appellants.\\nMary Peter Cudd, Floyd H. Christian, Lynn J. Element, Law Office of Lynn J. Element, Angleton, TX, Bart Alan Rue, Fort Worth, TX, for Appellees.\\nPanel consists of Chief Justice RADACE and Justices HIGLEY and NUCHIA.\\nThe Honorable Samuel N. Nuchia, who was a member of the panel when this case was submitted on November 25, 2008, retired from the First Court of Appeals on January 1, 2009. Retired Justice Nuchia continues to participate in the disposition of this proceeding by assignment.\", \"word_count\": \"6294\", \"char_count\": \"38408\", \"text\": \"OPINION\\nLAURA CARTER HIGLEY, Justice.\\nAppellant, John L. Eennamer, was driving an all-terrain vehicle (\\\"ATV\\\") on his ranch when he was attacked and injured by a cow, allegedly owned by appellees, the Estate of John Alwin Noblitt, Deceased, Charles R. Noblitt, Jr., Individually and as Administrator of the Estate of John Alwin Noblitt, Deceased, and Joann Jones, Individually and as Heir of the Estate of John Alwin Noblitt, Deceased. Appellants, Eennamer, Individually, and Een-namer & Mora Eennamer d/b/a E Bar Land & Cattle Company, sued appellees for negligence, alleging that appellees had failed to keep \\\"their wild cows\\\" on their property and had failed to warn Eennamer of the \\\"wild cows and the injuries the wild cows could inflict.\\\" Appellees moved for summary judgment on the ground that the evidence conclusively showed that they did not own the cow, which the trial court granted.\\nOur memorandum opinion in this cause issued on January 8, 2009. Appellants timely moved for rehearing to the panel and for en banc reconsideration to the Court. On March 3, 2009, the Court denied appellants' rehearing motion, but their motion for en banc reconsideration remained pending, thus maintaining our plenary power over the appeal. See Tex.R.App. P. 19.1(b); see also City of San Antonio v. Hartman, 201 S.W.3d 667, 670-71 (Tex.2006). During that plenary period, we now sua sponte withdraw our opinion and judgment issued January 8, 2009 and issue this opinion and judgment in its stead. See Univ. of Tex. Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 870 (Tex.App.-Houston [1st Dist.] 2007, pet. denied). Nonetheless, our disposition remains unchanged. Appellants' motion for en banc reconsideration is rendered moot by our withdrawing and reissuing our opinion. Cf. Brookshire Bros. v. Smith, 176 S.W.3d 30, 41 n. 4 (Tex.App.-Houston [1st Dist.] 2004, pet. denied) (op. on reh'g) (noting that motion for en banc reconsideration becomes moot when mo tion for rehearing is granted and new opinion and judgment issue).\\nIn what we construe as one issue, appellants contend that the trial court erred by granting summary judgment in favor of appellees.\\nWe affirm.\\nBackground\\nJohn A. Noblitt, now deceased, raised cattle on his ranch in Brazoria County, Texas. Alan Fitzgerald grew up on an adjoining ranch. For nearly 50 years, Noblitt enlisted Fitzgerald's help to work his cattle. When Noblitt became unable to take care of his cattle, Fitzgerald took over. In 2001, Fitzgerald began running his own cattle with Noblitt's herd.\\nAfter Noblitt's death in 2003, Fitzgerald continued to look after the cattle. In April 2004, some of the cattle escaped onto another adjoining ranch, which was owned by appellant, Kennamer. Fitzgerald went to Kennamer's ranch and, with the assistance of the sheriffs department, identified Fitzgerald's cattle and hauled them home. Fitzgerald contacted Noblitt's daughter, Sue, about retrieving Noblitt's cattle, and Sue insisted that she would retrieve the cattle herself.\\nFive months later, on September 12, 2004, Kennamer was working on his ranch with James Sutton. The men were each driving ATVs and checking fences. Sutton was working on one side of the pasture, and Kennamer was working on the other. At some point, Sutton looked up and saw Kennamer racing toward the woods on his ATV with a red cow chasing after him. Sutton saw the cow hit the back of the ATV and flip it up, throwing Kennamer off. Sutton found Kennamer lying unconscious and not breathing. Sutton performed CPR and Kennamer was \\\"life-flighted\\\" to the hospital. Kennamer survived, but sustained severe injuries to his head, chest, and legs.\\nAppellants sued Noblitt's estate for negligence, asserting that Kennamer was \\\"viciously attacked by wild cows belonging to [Noblitt],\\\" and that his injuries, for which he sought $2M in damages, were proximately caused by the negligence of appel-lees in failing to keep \\\"their wild cows [sic]\\\" on their property and failing to warn Kennamer of the \\\"wild cows and the injuries these wild cows could inflict.\\\"\\nAccording to Kennamer, the cow that attacked him was branded with an \\\"upside down U.\\\" According to Fitzgerald and area ranchers, Fitzgerald's, and not Nob-litt's, cows were branded with a \\\"U.\\\"\\nAppellees moved for summary judgment on the ground that they did not own the \\\"attacking cow.\\\" To their motion, appel-lees appended as their evidence excerpts of the deposition testimony of Kennamer; Fitzgerald; Sutton; Kenny Shaw, an area rancher who knew Noblitt; and Milton Sims and Johnny Hobbins, who knew Nob-litt and were familiar with his cattle.\\nIn their response to the motion for summary judgment, appellants contended that \\\"[t]he only issue at bar is the relationship between Noblitt and the cow,\\\" that the evidence on the issue of ownership is con flicting, and that therefore a fact issue precludes summary judgment. To their response, appellants appended excerpts of the deposition testimony of Fitzgerald, Sutton, and Sims.\\nOn February 1, 2008, the trial court granted summary judgment in favor of appellees. This appeal ensued.\\nSummary Judgment\\nAppellants contend that the trial court erred by granting summary judgment in favor of appellees because a genuine issue of material fact exists that precludes summary judgment, namely, the ownership of the cow.\\nA. Standard of Review\\nWe review a trial court's ruling on a motion for summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). A summary judgment under Rule of Civil Procedure 166a(c) is properly granted only when a movant establishes that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Tex.R.Crv. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). A defendant moving for summary judgment must either (1) disprove at least one element of the plaintiffs' cause of action or (2) plead and conclusively establish each essential element of an affirmative defense to rebut the plaintiffs' cause. Cathey v. Booth, 900 S.W.2d 389, 341 (Tex.1995).\\nFirst, the movant must conclusively establish its right to judgment as a matter of law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.2005).\\nThen, if the movant conclusively establishes its right to judgment, the burden shifts to the non-movant to respond with evidence raising a genuine issue of material fact that would preclude summary judgment. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex.1999) (explaining that non-movant has no burden to respond to summary judgment motion unless movant conclusively establishes its cause of action or defense). In deciding whether there is a disputed material fact precluding summary judgment, evidence favorable to the non-movant will be taken as true, every reasonable inference must be indulged in favor of the non-movant, and any doubts must be resolved in favor of the non-movant. Dorsett, 164 S.W.3d at 661.\\nB. Applicable Law\\nHere, appellants sued appellees for negligence. To prevail on a negligence cause of action, a plaintiff must show proof of (1) a legal duty owed by one party to another, (2) a breach of that duty, and (3) damages proximately caused by that breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002).\\nAppellees asserted in their motion for summary judgment that the evidence negated the elements of duty and breach. Whether appellees breached a legal duty owed to appellants depends on the duty, if any, that the law imposes on appellees.\\nTexans do not have a common-law duty to fence in their livestock. Gibbs v. Jackson, 990 S.W.2d 745, 747-50 (Tex.1999); Harlow v. Hayes, 991 S.W.2d 24, 27 (Tex.App.-Amarillo 1998, pet. denied). Any duty to restrain livestock is statutory. Gibbs, 990 S.W.2d at 747-48, 750 (examining stock owners' duties to contain livestock and expressly disapproving of cases holding that person who owns or is otherwise responsible for livestock has duty to prevent livestock from roaming, in absence of local stock law); Goode v. Bauer, 109 S.W.3d 788, 791 (Tex.App.-Corpus Christi 2003, pet. denied). \\\"In those counties that have adopted local stock laws, an owner of livestock may not permit the stock to run at large under section 143.074 of the agriculture code....\\\" Goode, 109 S.W.3d at 791 (citing Tex. Agric. Code Ann. \\u00a7 143.074) (Vernon 2004)) (emphasis added). \\\"Section 143.074 is not a penal statute; rather, it creates a duty on the keepers of livestock in counties that have adopted local stock laws to restrain their cattle. It is designed to protect all persons and property from wandering animals .\\\" Id. at 792; see also Gibbs, 990 S.W.2d at 750 (recognizing that Chapter 143 establishes civil liability for livestock owners who violate its provisions).\\nHence, any duty appellees owed with regard to the cow in this case arises under statute. Ownership or control of the livestock at issue is a sub-element of duty. See Koepke v. Martinez, 84 S.W.3d 393, 396 (Tex.App.-Corpus Christi 2002, pet. denied). The non-existence of a duty ends the inquiry. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex.1998).\\nC. Analysis\\nHere, appellants alleged in their petition that\\n[t]he attack of the wild cows [sic] owned by Defendants and resulting serious, permanent and disabling injuries to the Plaintiffs were each proximately caused by the negligence, ordinary and/or gross negligence, of the Defendants . including but not limited to: (1) In failing to keep their wild cows on Defendants' property; (2) In failing to warn Plaintiffs of the wild cows and the injuries these wild cows could inflict; and (3) In other particulars to be shown by proper amendment prior to trial.\\n(Emphasis added.) There is not an allegation that appellees controlled the cow at issue other than through ownership.\\nIn their motion for summary judgment, appellees contended that the evidence showed that they did not own the cow, which negated the duty element of appellants' negligence claim. See Cathey, 900 S.W.2d at 341. As evidence to support their contention, appellees appended to their motion excerpts of the deposition testimony of Kennamer, Sutton, Fitzgerald, Sims, and Shaw, which they incorporated into their motion by reference. Depositions are proper summary judgment evidence when referred to or incorporated into a motion for summary judgment. See Rangel v. Lapin, 177 S.W.3d 17, 21 (Tex.App.-Houston [1st Dist.] 2005, pet. denied).\\nKennamer testified that the cow that attacked him was \\\"solid red\\\" in color, was \\\"Brahman and possibly Hereford\\\" in breeding, had horns at least 18 inches in length; and \\\"had some ear notches that were common to Noblitt cattle\\\" \\u2014 which he \\\"believefd]\\\" were three or four notches on the outer rim of the left ear, but \\\"could have been\\\" more. Kennamer also testified that he \\\"didn't really use the marks to identify the cow.\\\" Kennamer testified that the cow that attacked him was branded with \\\"kind of an upside down U.\\\" When asked how he knew it was Noblitt's cow, Kennamer responded that it was by \\\"just observing the cow for, hell, 10 years, I guess,\\\" and that \\\"[i]t's just the same way you would identify your son. You'd recognize him.\\\"\\nKennamer first testified that he had seen the cow for several years and knew the cow, but that he had never complained to Noblitt about her. He later testified that the cow \\\"didn't come across the fence while [Noblitt] was alive.\\\" Kennamer also testified that there were no breaks in the fencing between Noblitt and Kennamer; rather, the cow had been in another pasture on Kennamer's own property and, on the day of the incident, there was a break in Kennamer's own cross-fencing, which allowed the cow to get into the pasture with Kennamer and injure him.\\nSutton testified by deposition that, on the day of the incident, he and Kennamer were on ATVs, checking fences. Sutton was working on one side of the pasture, while Kennamer worked on the other. At some point, Sutton looked up and saw Kennamer racing toward the woods on his ATV with a red cow chasing him. Sutton saw the cow hit the back of the ATV and flip it up, throwing Kennamer off. Sutton found Kennamer lying unconscious and not breathing.- Sutton testified that the cow was \\\"ribby\\\" and had \\\"two real high horns on her,\\\" about 12 inches long on each side.\\nSutton testified that he did not know whose cow it was or from where it came. After the incident, Sutton found a break in the common fence between Kennamer's land and a wildlife preserve, known as \\\"Hunt Woods,\\\" that adjoined Kennamer's land. Sutton testified that this was the only downed fence that he found and that he had frequently seen cattle on the government land.\\nFitzgerald's deposition testimony was that he had been running his own cattle with Noblitt's herd on Noblitt's ranch since 2001. Fitzgerald described specific events that had occurred while working the herd, and Fitzgerald explained that some of the cattle could get aggressive and were dangerous but that \\\"you always got [sic] danger in cattle.\\\" Fitzgerald testified that he and Noblitt would sell the unmanageable cattle at auction as they could catch them. Fitzgerald reported that, on one occasion, one of Noblitt's cows (other than the one at issue) had injured a man on horseback at an auction barn. Fitzgerald noted that he had called the auction barn and warned them about the cow.\\nFitzgerald testified that, after Noblitt's death in 2003, Fitzgerald continued to take care of the herd until April 2004, when they \\\"got out and got into Kennamer's.\\\" When the cattle got out, Kennamer called Fitzgerald to retrieve them. Fitzgerald went to Kennamer's ranch with sheriffs deputies, who examined ear tags, loaded up Fitzgerald's cattle, and brought them home. Fitzgerald said that Noblitt's cattle were left on Kennamer's property and that he contacted Noblitt's daughter, Sue, about retrieving them. He told Sue that the cattle could get aggressive, but Sue insisted that she would retrieve them herself.\\nFitzgerald testified that Noblitt had some red Brangus crossbreds, that some had horns, and that none of them were branded. Noblitt typically, although not always, used a single notch on the bottom of the left ear and tipped the right. Fitzgerald further testified that his own cattle were red in color, had horns, and were branded with \\\"a walking U right behind the left shoulder,\\\" which is a \\\"U\\\" with two little lines coming down from it.\\\" Fitzgerald testified that \\\"[i]f [the cow] had a Walking U on her, it was mine.\\\"\\nShaw also testified that Fitzgerald branded his own cattle with a \\\"U with two little legs under it\\\" and that Noblitt did not brand his herd. Shaw testified that Kennamer's description of the cow that attacked him as \\\"solid red with horns that were 18 inches or longer on each side\\\" did not describe any of Noblitt's cattle. Shaw further testified that Noblitt's cattle were healthy and in good condition.\\nHobbins also testified that Fitzgerald branded his cattle with a \\\"U,\\\" that Noblitt did not brand his cattle, and that Kennamer's description of a cow with a \\\"U\\\" brand would be Fitzgerald's cow. Hobbins further testified that Noblitt did not own any solid red cows.\\nSims testified that Noblitt had a \\\"hundred and some odd head of cattle\\\"; that some were some \\\"partly\\\" red in color, but none were solid red; that some had horns, but that most of them were not over six or eight inches because they had been tipped; and that Noblitt did not brand his cattle.\\nRegarding the scope of review for summary judgments, City of Keller instructs that \\\"there is only one standard \\u2014 a reviewing court must examine the entire record, in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion.\\\" 168 S.W.3d at 824 (emphasis added). We \\\"do not disregard the evidence supporting the motion,\\\" because if we did, \\\"all summary judgments would be reversed.\\\" Id. at 824-25.\\nHere, considering all the evidence presented by the movant in the light that supports the non-movant, as we must, we accept as true the testimony of the non-movant, Kennamer, that the cow was red; that she had horns of 12-18\\\" in length, as Kennamer and Sutton testified; that she had three, four, or more ear notches; and that she was thin, ribby, and aged. We accept as true Kennamer's testimony that the cow that attacked him was branded with \\\"kind of an upside down U.\\\"\\nWe cannot ignore, however, the mov-ant's evidence that Fitzgerald testified that his own cows had escaped onto Kennamer's property five months prior; that his own cows are branded with a \\\"walking U,\\\" which is a \\\"U\\\" with two little lines coming down from it\\\"; and admitting that, if the cow was branded with a \\\"U,\\\" she was his cow. See id. at 822 (explaining that we may not disregard evidence that allows only one inference).\\nAppellees' burden, as the movant, was to conclusively establish their right to judgment as a matter of law. See MMP, Ltd., 710 S.W.2d at 60. Because Fitzgerald admitted, against his own interest, that the cow at issue belonged to him, we conclude that reasonable people could not differ in the conclusion to be drawn from the evidence, that is, that Fitzgerald owned the cow. See City of Keller, 168 S.W.3d at 816 (\\\"A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence.\\\").\\nOnce, appellees negated the duty element of appellants' claim and established their right to judgment, the burden shifted to appellants to respond with controverting evidence raising a genuine issue of material fact that would preclude summary judgment. See Rhone-Poulenc, Inc., 997 S.W.2d at 222-23. In their response to appellees' motion for summary judgment, appellants contended that a material fact issue regarding the ownership of the cow precluded summary judgment. Appellants appended excerpts of the deposition testimony of Sutton, Fitzgerald, and Sims.\\nAppellants first contended that evidence giving rise to an issue of material fact concerning whether appellees owned the cow at issue was \\\"whether the cow that attacked Kennamer was or was not branded.\\\" As discussed above, we accept as true the testimony of Kennamer, the non-movant, that the cow was branded. Examining the entire record, however, the evidence also shows that the brand was that of Fitzgerald. Appellees presented no controverting evidence that the brand on the cow at issue was that of Noblitt. See e.g., Tex. Agri.Code Ann. \\u00a7 144.043 (Vernon 2004) (stating, \\\"Any dispute about an earmark or brand shall be decided by reference to the mark and brand records of the county clerk, and the mark or brand of the oldest date prevails.\\\"). The dissent focuses on fact issues such as whether the cow was red. The relevant inquiry is not whether the summary judgment proof generally raises fact issues, but whether the summary judgment proof establishes as a matter of law that there is not a genuine issue of material fact. Rhone-Poulenc, Inc., 997 S.W.2d at 223.\\nNext, appellants point to Kennamer's testimony that he had, on a prior occasion, seen the cow that attacked him on Nob-litt's ranch, as evidence giving rise to a genuine issue of material fact. The uncon-troverted evidence, however, is that Fitzgerald's cattle had also been running on Noblitt's ranch since 2001.\\nAppellants next point to evidence that Noblitt's cattle had come onto Kennamer's ranch months before the incident, as evidence giving rise to a genuine issue of material fact. The uncontroverted evidence shows, however, that Noblitt's and Fitzgerald's cattle were on Kennamer's property in April 2004. In addition, evidence that Noblitt's cattle came onto Ken-namer's ranch five months prior to the incident at issue is not evidence that the cow that attacked Kennamer on this day was Noblitt's cow. Moreover, Kennamer himself testified that the only fence down was his own cross-fence, and Sutton, who testified on Kennamer's behalf, stated that the only fence down was between Kennamer's land and the adjoining wildlife preserve, where cattle were known to be.\\nFinally, appellants point to Fitzgerald's testimony that some of the cows were aggressive and dangerous, as evidence giving rise to a genuine issue of material fact. The evidence shows that, although Fitzgerald testified that some of the cattle could get aggressive and were dangerous, he explained that \\\"you always got [sic] danger in cattle.\\\" Evidence that other cows in other circumstances at some point in the past acted aggressively \\u2014 or acted in conformity with how cows are generally expected to behave \\u2014 is not evidence that the cow in this case belonged to Noblitt.\\nWe disagree that this evidence rises to a level that creates a genuine issue of material fact. We conclude that, as a matter of law, appellees have carried their burden to disprove at least one element of appellants' cause of action, namely, duty. See Cathey, 900 S.W.2d at 341. Accordingly, the rendition of summary judgment on this ground was proper. See Tex.R. Crv. P. 166a(c); KPMG Peat Marwick, 988 S.W.2d at 748.\\nAccordingly, we overrule appellants' sole issue.\\nConclusion\\nWe affirm the judgment of the trial court.\\nAppellants moved for rehearing to the panel and for en banc reconsideration to the Court. See Tex.R.App. P. 49.1, 49.7.\\nThe panel denied the motion for rehearing addressed to it, leaving pending the motion for en banc reconsideration, which maintained the Court's plenary power over the case. See Tex.R.App. P. 19.1, 49.3.\\nDuring the pendency of the motion for en banc reconsideration, the Court sua sponte withdrew its opinion and judgment issued January 8, 2009, thus rendering moot the motion for en banc reconsideration. Cf. Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 41 n. 4 (Tex.App.-Houston [1st Dist.] 2004, pet. denied) (op. on reh'g).\\nAfter the Court's withdrawal of its January 8, 2009 opinion and judgment, during the pendency of the Court's plenary power over the case, and before another opinion and judgment had issued in the case, en banc consideration was requested from within the Court. See Tex.R.App. P. 41.2(c).\\nChief Justice RADACK and Justices JENNINGS, KEYES, ALCALA, HANKS, HIGLEY, BLAND, SHARP, and NUCHIA participated in the vote to determine en banc consideration.\\nA majority of the Justices of the Court voted to deny en banc consideration. See id.\\nJustice KEYES, joined by Justice SHARP, dissenting from the denial of en banc consideration. See id.\\n. After appellants' motion for en banc reconsideration was rendered moot by the withdrawal of our January 8, 2009 opinion and judgment, during the Court's plenary power over this case, and before today's opinion and judgment had issued, en banc consideration of the case was requested from within the Court. See Tex.R.App. P. 41.2(c). A majority of the Justices of the Court voted to deny en banc consideration of the case. See id. Along with the Court's opinion that issues today, Justice Keyes, joined by Justice Sharp, issues an opinion dissenting from the denial of en banc consideration. See Tex.R.App. P. 47.5.\\n. The dissent expresses concern that we have \\\"gratuitously\\\" pointed to statutory law that neither party raises. We are not at liberty to apply anything other than the law that governs the issue before us. To do otherwise \\\"would empower parties to usurp the courts' constitutional role in our judicial system.\\\" Zapata County Appraisal Dist. v. Coastal Oil & Gas Corp., 90 S.W.3d 847, 852, 853 n. 1 (Tex.App.-San Antonio 2002, pet. denied).\"}"
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+"{\"id\": \"7324279\", \"name\": \"Dominic Deshawn GASTON, Appellant, v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Gaston v. State\", \"decision_date\": \"2010-11-02\", \"docket_number\": \"No. 14-09-00426-CR\", \"first_page\": \"905\", \"last_page\": \"911\", \"citations\": \"324 S.W.3d 905\", \"volume\": \"324\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T01:34:00.597500+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel consists of Justices SEYMORE, BOYCE, and CHRISTOPHER.\", \"parties\": \"Dominic Deshawn GASTON, Appellant, v. The STATE of Texas, Appellee.\", \"head_matter\": \"Dominic Deshawn GASTON, Appellant, v. The STATE of Texas, Appellee.\\nNo. 14-09-00426-CR.\\nCourt of Appeals of Texas, Houston (14th Dist.).\\nNov. 2, 2010.\\nTerence C. Norman, Pearland, for appellant.\\nJeri Yenne, David Bosserman, Angleton, for appellee.\\nPanel consists of Justices SEYMORE, BOYCE, and CHRISTOPHER.\", \"word_count\": \"2540\", \"char_count\": \"15818\", \"text\": \"OPINION\\nTRACY CHRISTOPHER, Justice.\\nIn this appeal, we examine the sufficiency of corroborating evidence under the accomplice-witness rule. Because the evidence does not tend to connect the accused to the charged offense, we reverse and render judgment of acquittal.\\nBACKGROUND\\nAppellant Dominic Deshawn Gaston was charged in the robberies of two Angleton convenience stores in February 2008. The first robbery occurred on February 3 at the T & M Grocery; the second on February 17 at the E-Z Food Mart. Video surveillance from both stores depicts a single masked individual, fully dressed in black. Clerks from neither store were able to identify the offender. The only relevant information they could provide was that a small gun was used in the commission of the first robbery and that approximately two thousand dollars was taken in the second.\\nAt trial, Steven Ray Hall testified against appellant as an accomplice witness. According to Hall, he and appellant coordinated both robberies together. Hall said that when he met appellant in an alleyway behind the T & M Grocery, appellant was carrying a .38-caliber black revolver and wearing a dark black wind suit, skull cap, and do-rag. The two agreed that appellant would rob the store alone while Hall waited in a car with another individual. Hall further testified that he assisted appellant two weeks later by driving him to the E-Z Food Mart in his sister's car. Hall parked the car at an apartment complex down the road while appellant committed the robbery by himself, dressed entirely in black, just as before. When appellant returned, Hall claimed that appellant had stolen at least four hundred dollars in cash.\\nThe jury was instructed that Hall was an accomplice witness, and therefore appellant could not be convicted on the basis of his testimony without further corroborating evidence. The State relied principally upon the testimony of two non-accomplice witnesses for that corroboration. Lavetta Williams testified that she purchased a small gun from appellant in February 2008. Though the gun was not available at trial for comparison, Williams testified that it resembled the revolver that was displayed in the surveillance footage of the T & M Grocery robbery.\\nCrystal Nelson testified that Hall and appellant attended her backyard barbecue on the day of the E-Z Food Mart robbery. Nelson is Hall's sister, and appellant is a family friend they have known for years. Sometime in the late afternoon, Nelson claimed that Hall and appellant borrowed her car. She did not know where they went, nor could she recall how long they were gone. Nelson testified that she always charged for the loan of her car, and when the two men returned, appellant paid her $65 in five-dollar bills from a large \\\"wad of cash.\\\" She did not know if appellant had any money before he borrowed her car, and she could not confirm whether he was currently employed.\\nThe jury convicted appellant for the robbery of the E-Z Food Mart, but acquitted him of the aggravated robbery of the T & M Grocery. Punishment was assessed at fifteen years' confinement and a fine of five thousand dollars. In his first of five issues, appellant argues that the evidence does not sufficiently corroborate the testimony of the accomplice witness. We agree.\\nDISCUSSION\\nThe accomplice-witness rule provides that a \\\"conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.\\\" Tex.Code Crim. Proc. art. 38.14 (Vernon 2005). The rule derives not from federal or state constitutional principles, but rather from the legislative determination that accomplice testimony must be taken with a degree of caution. Nolley v. State, 5 S.W.3d 850, 852-53 (Tex.App.-Houston [14th Dist.] 1999, no pet.). The underlying rationale is that the accomplice is a corrupt source who may well have improper incentives when testifying against the accused \\u2014 e.g., to redirect blame or to gain favor with the state in exchange for a reduced punishment. Wincott v. State, 59 S.W.3d 691, 698 (Tex.App.Austin 2001, pet. refd). For these reasons, an accomplice witness is a \\\"discredited witness,\\\" and regardless of how completely the accomplice may outline the facts of a case, the jury may not convict the accused without additional corroborating evidence. Walker v. State, 615 S.W.2d 728, 731 (Tex.Crim.App.1981).\\nWhen determining the sufficiency of corroborating evidence, we eliminate the testimony of the accomplice and examine whether the remaining evidence tends to connect the accused to the charged offense. Knox v. State, 934 S.W.2d 678, 686 (Tex.Crim.App.1996). Corroboration may rest on direct or circumstantial evidence. Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App.1993). Standing alone, it need not establish the guilt of the accused. Cox v. State, 830 S.W.2d 609, 611 (Tex.Crim.App.1992). Nevertheless, the corroboration must \\\"tend to connect\\\" the accused to the commission of the offense; if it does no more than point the finger of suspicion at him, then we must reverse. Paulus v. State, 633 S.W.2d 827, 844 (Tex.Crim.App.1981).\\nWe conclude that the evidence is insufficient to corroborate appellant's involvement in the robbery. Crystal Nelson supplied the only non-accomplice evidence in support of appellant's conviction, and the sum of her testimony is that (1) she witnessed the accomplice and appellant together on the afternoon of the robbery; (2) she loaned them her car; and (3) when they returned after an unspecified length of time, appellant had a \\\"wad\\\" of five-dollar bills, from which he paid her for the use of her car. We recognize that testimony placing appellant in the company of the accomplice near the time of the offense may be considered as corroborating evidence, but evidence of guilt by association will not satisfy article 38.14 by itself. Nolley, 5 S.W.3d at 854-55; see Coston v. State, 162 Tex.Crim. 548, 287 S.W.2d 671, 672 (1956). What remains of Nelson's testimony is likewise insufficient because it merely creates a suspicion of guilt without tending to connect appellant to the actual robbery.\\nNelson gave no indication as to the purpose, destination, or duration of appellant's trip. Though she remembered lending her car in the late afternoon, she could not specify any window of time that might link appellant's period of absence to the commission of the robbery. Her only remotely inculpatory testimony was that appellant paid her from a roll of five-dollar bills, but we fail to see how that provides sufficient corroboration. Nelson admitted that she did not know whether appellant had any money when he first arrived at her barbecue. Except for the thirteen five-dollar bills she personally received, Nelson could not quantify how much money remained in appellant's \\\"wad of cash.\\\" Accordingly, the record does not reflect how much money appellant had overall, or whether it would substantiate the clerk's claim of two thousand dollars stolen or Hall's observation of at least four hundred dollars.\\nThe State would have us believe that appellant's sighting with a \\\"wad of cash\\\" still provides sufficient corroboration because, under Cockrum v. State, possession of a large amount of money after a robbery by one who is unemployed is proper corroborating evidence. 758 S.W.2d 577 (Tex.Crim.App.1988). Even if appellant were actually unemployed \\u2014 and we note that Nelson's testimony is less than clear on this point \\u2014 we would have to disagree, as Cockrum was decided on strikingly different facts.\\nCockrum was arrested on charges of murder and aggravated robbery with over one thousand dollars on his person, and the non-accomplice witness testified that she had personal knowledge that Cockrum \\\"was unemployed and had not had any money a few days before.\\\" Id. at 580. By contrast, the evidence against appellant never revealed the quantity of cash in his actual possession (except for a minimum of $65). Nor did it establish that appellant lacked money before Nelson's barbecue, or, for that matter, whether he possessed it after the robbery's commission. Accordingly, the evidence does not similarly suggest that appellant's money was the fruit of an offense. Cf. id. at 582. Moreover, the court found that Cockrum's cash was only one of several factors that tended to connect him to the charged offenses. For example, the evidence showed that Cock-rum listened intently to a police scanner after the commission of the crime; he buried a gun consistent with the type used in the murder; and finally, he fled to another state, checking into a motel under an assumed name. Id. at 581-82. Given this additional corroborating evidence, the State's construction of Cockrum is incomplete. Indeed, we cannot accept, under the cited authority, that appellant's possible unemployment and an indeterminate number of five-dollar bills are sufficient to corroborate his involvement in this robbery.\\nWe emphasize that article 88.14 does not require the non-accomplice witness to specify in certain terms any amount of money that may have been seen in order to corroborate the testimony of a robbery accomplice. See, e.g., Killough v. State, 718 S.W.2d 708, 710 (Tex.Crim.App.1986). Instead, the facts and circumstances must tend to connect the accused to the offense, and the mere possession of a \\\"wad of cash,\\\" without more, will not suffice.\\nThe meager evidence in this case stands in contrast, for example, to the corroborating evidence discussed in Killough. In that case, evidence regarding the defendant's possession of a \\\"wad of money\\\" after a robbery was supplemented with additional evidence corroborating the accomplice's testimony \\\"at nearly every point except during the offense itself.\\\" Id. at 711-12. The accomplice testified that he and Killough robbed a bar while a third man waited outside in a getaway truck. Id. at 709. A patron from the bar testified that he followed them in his pickup after the two robbers left. Id. at 710-11. The patron collided with the truck head-on in a cul-de-sac and saw three men flee thereafter. Id. at 711. The truck was eventually linked to a lease application signed by Killough's wife. Id. at 710. After the accident, Killough told his wife that he was involved in a head-on collision. Id. at 711. He sustained injuries compatible with such an accident, and sought treatment for those injuries under a false name. Id. at 711-12. A day after the robbery, Killough was also seen displaying \\\" 'a wad of money out of his pocket,' but [the non-accomplice witness] didn't know how much money it was.\\\" Id. at 710. The court determined that it was a \\\"rational inference that even if appellant was not one of the robbers inside the Z-Bar he was the third man waiting in the truck outside.\\\" Id. at 712. The record before us lacks comparable corroborating evidence.\\nThe State still offers two other grounds of corroboration, but each is unpersuasive. The State first contends that the surveillance footage sufficiently corroborates Hall's testimony because the jury was able to compare the appellant's physique to the figure in the video. As mentioned before, the video depicts a masked offender, fully concealed under black clothing. Except for the black skin on his neck, the video does not reveal any distinguishing marks or characteristics of the offender. Under the circumstances, a general silhouette in a video is insufficient to connect appellant to the robbery. See Fernandez v. State, 989 S.W.2d 781, 786 (Tex.App.-San Antonio 1998, pet. refd) (corroboration insufficient where vague description of body type could match \\\"hundreds or thousands of other men in the area\\\").\\nThe State finally contends that La-vetta Williams corroborated the accomplice witness through her testimony that she purchased a gun from appellant that resembled the same revolver used in the robbery of the T & M Grocery. But appellant stands convicted for robbing the E-Z Food Mart, not the T & M Grocery. The State insists, nonetheless, that an acquittal does not bar consideration of such corroborating evidence because article 38.14 requires a lower burden of proof than a finding of guilt. Cf. Moreno v. State, 22 S.W.3d 482, 488 (Tex.Crim.App.1999) (recognizing that because probation is revoked on just a preponderance of the evidence, a court could consider evidence of another crime for which the jury did not find the defendant guilty beyond a reasonable doubt).- The problem, however, is not the quantum of proof, but the direction of the evidence. Williams's testimony may properly corroborate appellant's involvement in the robbery of the T & M Grocery, but in no way does it \\\"tend to connect\\\" him to the conviction under appeal. The record shows that no weapon was used during the robbery of the E-Z Food Mart, and the State did not elicit any further testimony from Williams regarding that robbery. Accordingly, we do not factor her statements into our analysis.\\nThe law is well-established that the \\\"mere presence of the accused in company with the accomplice witness shortly before or after the time of the offense is not, in itself, sufficient corroboration.\\\" Harris v. State, 738 S.W.2d 207, 218 (Tex.Crim.App.1986). However, with the testimony from Hall excluded, that is the extent of the record before us. Although appellant had a large number of five-dollar bills, there was no evidence as to whether he had the money before the robbery, after the robbery, or both. No physical evidence was collected, nor was Nelson's car ever spotted near the scene of the crime. Even if appellant were also unemployed, the evidence, at most, raises a suspicion of guilt, and even \\\"a strong suspicion or probability of appellant's guilt\\\" is insufficient where the corroborating evidence does not tend to connect the appellant to the charged offense. Umsted v. State, 435 S.W.2d 156, 158 (Tex.Crim.App.1968); e.g, Wincott, 59 S.W.3d at 699-703 (worried behavior of appellant after arrest of accomplice and written correspondence referencing \\\"the crimes\\\" insufficient to corroborate appellant's involvement in series of armed robberies). Because we conclude that the evidence does not satisfy article 38.14, we must reverse the conviction and render judgment of acquittal.\\n. The prosecutor mistakenly referred to this footage as Exhibit No. 8, which is instead the surveillance video for the E-Z Food Mart robbery. In its brief, the State concedes that Williams was actually viewing Exhibit No. 5, which is the video from the T & M Grocery.\\n. The record is unclear as to whether Nelson knew appellant to be unemployed or whether she lacked personal knowledge of his employment:\\nProsecutor: And had you known him to be employed during that time period when\\u2014\\nCounsel: Objection. Witness has no personal knowledge as to the Defendant's state of employment.\\nThe Court: Well, I don't know if she does or she doesn't. She may answer if she has personal knowledge.\\nNelson: Not to my knowledge.\\nThe Court: There you go.\\nProsecutor: Not to your knowledge that he was employed or not?\\nNelson: Right.\\nProsecutor: Okay. So, in other words, as far as you knew, he didn't have a job?\\nCounsel: Objection. That's leading.\\nThe Court: Sustained.\\n. The time of the offense was never elicited through witness testimony. The timestamp on the surveillance footage, if accurate, would show that the robbery of the E-Z Food Mart was committed just after 6:30 p.m.\"}"
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+"{\"id\": \"8244246\", \"name\": \"SPEER v. RUSHING et al.\", \"name_abbreviation\": \"Speer v. Rushing\", \"decision_date\": \"1916-02-02\", \"docket_number\": \"No. 5573\", \"first_page\": \"67\", \"last_page\": \"68\", \"citations\": \"183 S.W. 67\", \"volume\": \"183\", \"reporter\": \"South Western Reporter\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T17:06:53.907097+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SPEER v. RUSHING et al.\", \"head_matter\": \"SPEER v. RUSHING et al.\\n(No. 5573.)\\n(Court of Civil Appeals of Texas. Austin.\\nFeb. 2, 1916.)\\n1. Principal and Subety @=3125 \\u2014 Release of Subety \\u2014 Extension of Time fob Payment.\\nA mere forbearance to sue, without an agreement snot to do so, will not release a surety from liability for a debt.\\n[Ed. Note. \\u2014 For other cases, see Principal and Surety, Ceht. Dig. \\u00a7\\u00a7 312-328; Dec. Dig. &wkey;3l25J\\n2. PRINCIPAL AND SURETY <&wkey;>105 \\u2014 RELEASE OF\\nSurety \\u2014 Extension of Time fob Payment. An agreement by the payee of a note with the principal maker, for a valuable consideration, to extend the time for payment for a definite time, made without the consent of the principal\\u2019s surety, will release the surety.\\n[Ed. Note. \\u2014 For other cases, see Principal and Surety, Cent. Dig. \\u00a7\\u00a7 191, 192, 196, 201-210; Dec. Dig. <&wkey;>105.]\\n3. Principal and Surety <&wkey;108 \\u2014 Release of Subety \\u2014 Extension of Time \\u2014 Consideration.\\nThe agreement whereby the payee of a note extends additional time to the principal maker for its payment, to release the principal\\u2019s surety, must be supported by a valid consideration.\\n[Ed. Note. \\u2014 For other cases, see Principal and Surety, Cent. Dig. \\u00a7\\u00a7 213-218; Dec. Dig. <&wkey;> 108.]\\n4. Principal and Surety t&wkey;108 \\u2014 Extension of Time fob Payment \\u2014 Consideration.\\nWhere the payee of an interest-bearing obligation promises to forbear collection for a definite. time, and the principal debtor agrees to pay interest for such time, the mutual promises constitute valuable consideration, supporting the agreement, and incidentally ditecharging the principal\\u2019s surety, if made without his consent.\\n[Ed. Note. \\u2014 For other cases, see Principal and Surety, Cent. Dig. \\u00a7\\u00a7 213-218; Dec. Dig. &wkey;>\\n5. Principal and Surety <&wkey;104 \\u2014Extension of Time foe Payment \\u2014 Conditional Character.\\nIf the agreement between debtor and creditor for an extension of time for payment is conditional, it must be shown that such condition has been complied with, to effect the release of the debtor\\u2019s surety.\\nLEd. Note. \\u2014 For other cases, see Principal and Surety, Cent. Dig. \\u00a7\\u00a7 186-190, 193-195, 197-200; Dec. Dig. &wkey;104.]\\n6. Principal and Surety &wkey;>161 \\u2014 Extension of Time foe Payment \\u2014 Sufficiency of Evidence.\\nIn suit on a note, evidence as to plaintiff\\u2019s alleged agreement with the principal maker to extend the time for payment held, insufficient to sustain verdict for defendants, sureties for the principal maker.\\n[Ed. Note. \\u2014 For other cases, see Principal and Surety ]Oent. Dig. \\u00a7\\u00a7 85, 439-441; Dec. Dig.\\nAppeal from District Court, Robertson County; J. C. Scott, Judge.\\nSuit by A. J. Speer against Will Rushing and another. From a judgment for defend-\\nants, plaintiff appeals.\\nReversed and remanded.\\nSee, also, 178 S. W. 1012.\\nW. W. Wilson, of Calvert, and V. B. Hudson, of Bryan, for appellant. H. S. Morehead, of Franklin, for appellees.\", \"word_count\": \"1157\", \"char_count\": \"6770\", \"text\": \"JENKINS, J.\\nIn November, 1913, appellant loaned M. D. Sharp $4,000, upon a promissory note signed by said Sharp and R S. Glass & Go., Will Rushing, and J. W. Mc-Crary, payable January 1, 1914. Sharp was a member of the firm of R. S. Glass & C'o. While all parties appear on the face of the note as principals, in fact Sharp was the principal and the other parties were sureties, which fact was known to appellant at the time the money was loaned. Sharp and Glass & Co. became bankrupt in March, 1914. The only issue presented by this appeal is as to whether appellant agreed with Sharp to extend the time of payment of the note to January 1, 1915.\\nA mere forbearance to sue, without an agreement not to do so, will not release a surety from payment of a debt. Russell v. Miller, 40 Tex. 501; Houston v. Braden, 37 S. W. 468; Titterington v. Murrell, 90 S. W. 510; Bank v. Gilvin, 152 S. W. 654, 655; Hunter v. Clark, 28 Tex. 163. On the other band, an agreement by the payee with the principal, for a valuable consideration, to extend a note for a definite time, made without the consent of the surety, will release the surety. Guerguin v. Boone, 33 Tex. Civ. App. 622, 77 S. W. 631; Wybrants v. Lutch, 24 Tex. 310; Pilgrim v. Dykes, 24 Tex. 383, 384. The consideration must be valid. Payne v. Powell, 14 Tex. 601; Andrews v. Hagadon, 54 Tex. 577, 578.\\nWhere the payee of an interest-bearing obligation promises to forbear the collection of the same for a definite time, and the principal therein agrees to pay the interest for such time, such mutual promises, giving the creditor, on the one hand, a profitable investment, and the debtor, on the other hand, the use of the money for a definit\\u00e9 time is a valuable consideration, and will be sufficient to enforce such agreement and to discharge the surety, if made without his consent. Benson v. Phipps, 87 Tex. 580-582, 29 S. W. 1061, 47 Am. St. Rep. 128. Such agreement, to amount to a valid consideration, must be mutual. Norris v. Graham, 42 S. W. 576. It must be for a definite time, so that until the expiration of that time the hands of both parties are tied, in that the creditor could not enforce the collection of the debt, and the debtor could not tender payment and stop the interest; 'hence the agreement must be unconditional, or, if upon a condition precedent, it must be shown that such condition has been complied with. Benson v. Phipps, supra, 87 Tex. 580, 29 S. W. 1061, 47 Am. St. Rep. 128; Barlow v. Frederick Stearns Co., 44 Tex. Civ. App. 321, 98 S. W. 456; Burke v. Cruger, 8 Tex. 70, 71, 58 Am. Dec. 102.\\nThe court submitted the case to the jury on a general charge, and their verdict necessarily includes a finding that there was such an agreement between' appellant and Sharp as would discharge the sureties. Appellant, under a proper assignment of error, contends that the verdict is unsupported by the evidence. Had Sharp testified positively to such agreement, that would have been sufficient to sustain the verdict, and his testimony would have found circumstantial corroboration in the testimony of McCreary and several other witnesses who testified as to alleged statements by appellant. But the evidence shows that, if such agreement was made, but two parties knew that fact, viz. appellant and Sharp. Appellant positively denies making such agreement. We think that Sharp's testimony shows only a conditional agreement, to wit, that appellant would extend the note for 12 months if it was agreeable to the appellees herein. The evidence shows that the appellees never agreed to such extension. The evidence as to the alleged agreement is not, in our opinion, sufficient to sustain the verdict of the jury, for which reason the judgment of the trial court is reversed, and this cause is remanded for a new trial.\\nReversed and remanded.\\n@=5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes\"}"
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+"{\"id\": \"8245178\", \"name\": \"HOPE v. HOPE\", \"name_abbreviation\": \"Hope v. Hope\", \"decision_date\": \"1915-06-19\", \"docket_number\": \"No. 7402\", \"first_page\": \"32\", \"last_page\": \"33\", \"citations\": \"178 S.W. 32\", \"volume\": \"178\", \"reporter\": \"South Western Reporter\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T22:02:27.653951+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HOPE v. HOPE.\", \"head_matter\": \"HOPE v. HOPE.\\n(No. 7402.)\\n(Court of Civil Appeals of Texas. Dallas.\\nJune 19, 1915.)\\nDivobce <&wkey;133 \\u2014 Abandonment \\u2014 Agreed Separation \\u2014 Evidence.\\nEvidence, in an action for divorce, held to show, not an agreed separation, but a voluntary abandonment by. the wife, without fault of the husband, merely acquiesced in by him, entitling him to divorce.\\n[Ed. Note. \\u2014 For other cases, see Divorce, Cent. Dig. \\u00a7\\u00a7 446-448; Dec; Dig. &wkey;>133.]\\nAppeal from District Court, Kaufman County; F. L. Plawkins, Judge.\\nAction by J. P. Hope against Maud Hope. From an adverse judgment, plaintiff appeals.\\nReversed and rendered.\\nWynne & Wynne, of Kaufman, for appellant.\", \"word_count\": \"1700\", \"char_count\": \"8887\", \"text\": \"RAINEY, C. J.\\nAppellant, J. P. Hope, sued the appellee, Maud 1-Iope, for divorce. After alleging his bona fide residence in this state, and in Kaufman county, for more than 12 months, and the marriage of Maud Hope and himself, he further alleged that she had voluntarily abandoned, without cause, his bed and board for more than three years. The appellee did not appear and answer plaintiff's petition. The court heard evidence and denied plaintiff's plea for divorce, lie appeals from the judgment.\\nThe evidence adduced on the trial, as shown by the statement of facts, is:\\nJ. P. Hope, the plaintiff, testified:\\n\\\"I am the plaintiff in this cause. The defendant and myself were married on the 28th day of January, 1910. I was 21 years of age at the date of the marriage. We lived together as man and wife until the 10th day of September, 1910. We were married in Kaufman county, Tex. During the time that we lived together as man and wife I was kind and affectionate toward the defendant, and endeavored to make her a good husband. She did not seem to like my people, and wanted me to move away; she was very jealous of me, and quarreled a great deal. She would not assist me, and did not seem to care whether we got along or did any work or not. She had threatened to leave me. On the 10th day of September, 1910, she asked me to take her over to her father's on a visit. I told her that X would do it, so I hitched up \\u2022 the horse to the buggy, and she packed a grip and we drove over to her father's. On the way over there she told me that she was not going to live with me any more. I asked her to live with me, and she told me that she did not know whether she would or not. I did not know at the time she asked me to take her to her father's house that she intended to leave me. She told me, before I left her at her father's house, that she would let me know before the next Saturday whether or not she would live with me; that, if she did not write me to come over after her, she would not live with me. I left her with that understanding, asking her to live with me, and expecting her to return or to write me to come over after her. I wanted to live with her at that time. Yes, sir; I took her over to her father's house. She asked me to do so. She told me that she would not live with me. She told me that she would write me by Saturday whether to come over there after her or not. If she did not write for me to come after her, I was to understand that' she would not live with. me. I did not hear from her, so I went out close to Ft. Worth, Tex., and visited my uncle out there. On the Saturday afternoon, after I left home, she came over to our house with her father. I was not present. She told my mother that she had come after her things, and that she did not intend to live with me any more. Her father told my mother in my wife's presence that she should not live with me any more, and that if I came around to their place to see her or after her, he would kill me. I did not go. She told me at the time I left her at her father's house that she would write me whether to come after her or not. She did not write for me to come after her. I had asked her to reconsider. Q. It was sort of an agreed separation was it not, Mr. Hope? A. Well, you might call it that. I left home before they came over there, and without waiting to see if she would write. I did not know they were coming. I have not seen her since that time I took her over to her father's house. I heard that she had moved to West Texas. Later they moved to Florida, or some other state, and then they moved back to Wood county, Tex. I have never heard from her directly; T just heard from her through the neighbors. It has been four years since I lived with her or had anything to do with her. There were no children by the marriage. It was agreed that I was to go over after her, if she wrote me.\\\"\\nMrs. N. A. Hope, being sworn, testified:\\n\\\"I am the mother of J. P. Hope. I know the defendant. They were married in 1910, and they lived together a few months. The defendant did not seem to care very much about the plaintiff. The plaintiff was good to her all the time. She seemed jealous of the plaintiff, and did not try to help him out any. She would not work-, and just quarreled about all the time. She went for a visit to her father's. I did not know that she intended to leave the plaintiff-until he came back home and told me that she had said that she would not live with him any more. He said that she had agreed to let him know before Saturday whether to come back after her or not. He stated that he was going back after her, if she let him know, but that, if she did not let him know, he was to understand that she would not live with him any more. He did not hear from her. He left home Saturday morning and went to Ft. Worth, Tex., on a visit. She came to our house on Saturday afternoon, late, and asked to get her clothes. Her father was with her. She stated that she did not intend to live with my son any more. Her father stated to me in her presence that, if my son came around their house or to see his wife that he, the father, was going to kill him. They left my house, and I have never seen them since. I heard that they had moved out of the state. It has been about four years since they left this country, and my son has not lived with his wife or heard from her since they separated.\\\"\\nJ. P. Hope, recalled, testified:\\n\\\"I had agreed to go back after my wife and would have gone back after her. I wanted to live with her. I do not want to live with her now. I think that her actions have rendered our further living together as man and wife entirely insupportable. I know that I will never live with her any more. I have lived in Texas for 24 years and in Kaufman county for more than 10 years. I am a bona fide inhabitant of the state of Texas.\\\"\\nAs suggested by counsel for appellant the trial court may have concluded from the evidence that there was an agreed separation. Appellant, while being examined, was asked by the court this question, \\\"It was sort of an agreed separation, was it not?\\\" and he answered, \\\"Well, you might call it that\\\" This answer does not necessarily mean that there was an agreement between himself and wife to separate, but all the evidence negatives such not to be the fact.\\nIn the ease of Besch v. Besch, 27 Tex. 390, where the husband had abandoned the wife, the court, in reviewing the case, said:\\n\\\"The fact that a husband shall have left his wife for three years with the intention of abandonment is made by the statute a specific cause of divorce. It is immaterial what were the circumstances attending the separation, if the wife is in no manner chargeable with it either by act or consent. That the separation was not accompanied by wanton acts of outrage or cruelty on the .part of the husband towards her, is of no importance. It is the fact solely of his separation from her for the requisite length of time, with the continuing intention on his part, during such time, not to perform his matrimonial obligations, which entitled her to a rescission of their matrimonial contract.\\\"\\nThe evidence of the appellant shows that he was in no way the cause of appellee leaving his bed and board, and that he was willing to live with her. It is also shown that she voluntarily abandoned him with the intention of not longer living with him as his wife. The appellant having done no act to cause her to leave him, he would be entitled to a judgment granting him a divorce. If there was a mutual understanding between them that they would separate and live apart, of course the law would not sanction it by granting a divorce to either party. But where the wife, as here indicated by the evidence, is jealous, quarrelsome, not willing to aid her husband, and generally disagreeable, and the husband merely acquiesces in her voluntarily leaving him, but still being willing to live with her, such would not prevent his being entitled to a divorce.\\nThe evidence failing to show an agreed separation on the part of appellant the judgment is reversed, and judgment here rendered for appellant.\\n<g^>For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes\"}"
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+"{\"id\": \"8247129\", \"name\": \"STOCKWELL v. MELBERN et al.\", \"name_abbreviation\": \"Stockwell v. Melbern\", \"decision_date\": \"1916-03-16\", \"docket_number\": \"No. 7142\", \"first_page\": \"399\", \"last_page\": \"402\", \"citations\": \"185 S.W. 399\", \"volume\": \"185\", \"reporter\": \"South Western Reporter\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T02:09:11.219460+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STOCKWELL v. MELBERN et al.\", \"head_matter\": \"STOCKWELL v. MELBERN et al.\\n(No. 7142.)\\n(Court of Civil Appeals of Texas. Galveston.\\nMarch 16, 1916.\\nRehearing Denied April 13, 1916.)\\n1. Pleading <\\u00a7=>349 \\u2014 Judgment\\u2014Admission of Cause of Action.\\nIn a suit by the seller of land against his own agent and the buyer for debt due on the written contract, where the buyer answered in the nature of confession and avoidance, asking affirmative relief on the ground of fraud, and the seller\\u2019s agent did neither, but, in effect, admitted his liability on the cause of action against him, the court should have entered judgment for the plaintiff against the agent.\\n[Ed. Note. \\u2014 Eor other cases, see Pleading, Cent. Dig. \\u00a7 1067-1069; Dec. Dig. <\\u00a7=>349.]\\n2. Pleading <\\u00a7=>228 \\u2014 Exception\\u2014Admission.\\nAn exception to a portion of a cross-bill admits the truth of the allegations excepted to.\\n[Ed. Note. \\u2014 For other cases, see Pleading, Cent. Dig. \\u00a7\\u00a7 584^-590; Dec. Dig. <\\u00a7=>22SJ\\n3. Vendor and Purchaser <\\u00a7=>337 \\u2014 Remedies of Buyer \\u2014 Fraudulent Representation-Lien for Purchase Money.\\nA buyer of land induced to contract by the seller\\u2019s claim that he owned good title, which he cid not have, the claim being fraudulently made to induce the buyer to part with his money, was entitled to a Hen upon the land for the purchase money paid.\\n[Ed. Note. \\u2014 Eor other cases, see Vendor and Purchaser, Cent. Dig. \\u00a7\\u00a7 985-990; Dec. Dig. <\\u00ae==>337.]\\n4. Judgment <\\u00a7=>256<2) \\u2014 Support by Findings.\\nIn a suit by the seller of land against the buyer and the seller\\u2019s agent on the contract, the buyer defending by asking affirmative relief on the ground that the contract was procured by the joint fraud of the seller and Ms agent, where the jury found that the seller and his agent concealed from the buyer that there had been claims of vacancy filed against the land, that the buyer would not have contracted had such claims of vacancy been known to him, that the seller knew the fact, that when the buyer contracted he did not know that the seller was going to hold up the check in the seller\\u2019s favor given him by the agent, and that the concealments and acts on the part of the agent were willfully made and, done with the intent to deceive the buyer, the court\\u2019s refusal to render judgment for the seller on the jury\\u2019s response to a special issue that the contract was a bona fide contract was proper.\\n[Ed. Note. \\u2014 For other cases, see Judgment, Cent. Dig. \\u00a7 447; Dec. Dig. <\\u215c=>256(2).]\\nError from District Court, Brazoria County; Samuel J. Styles, Judge.\\nSuit by Elmer P. Stockwell against Charles W. Melbern and another. To review a judgment for the named defendant on his cross-bill, plaintiff brings error.\\nAffirmed in part; reversed and rendered in part.\\nSee, also, 168 S. W. 405.\\nElmer P. Stockwell, of Angleton, for plaintiff in error. W. J. Johnson and Edward S. Boyles, both of Houston, for defendant in error.\", \"word_count\": \"2416\", \"char_count\": \"14039\", \"text\": \"McMEANS, J.\\nElmer P. Stockwell brought this suit against Charles W. Mel-bern and J. J. West for debt in the sum of $1,000, and 7 per cent, interest thereon from December 24, 1912, alleged to be due upon a written contract.\\nCharles W. Melbern answered, admitting that according to the apparent tenor of .the contract he was indebted to Stockwell for said sum, and admitted plaintiff's cause of action, except in so far as the same should be defeated by the subsequent allegations of his answer. He then pleaded a failure of consideration for the execution of the contract, and that the contract was procured by the joint fraud of Stockwell and the defendant J. J. West, setting out with particularity the facts constituting the alleged fraud and failure of consideration, which need not be here repeated. He also filed a cross-bill against both Stockwell and West in which he sought a recovery of $850 as actual damages, with 6 per cent, interest thereon from September 24, 1912, and for cancellation of said contract, and for the cancellation of a due-bill of $150 theretofore executed by him to Stockwell, and for the establishment and foreclosure of a vendee's lien upon certain land, the subject-matter of the contract, in part payment for which the $850 and the due-bill for $150 had been given, and for exemplary damages in the sum of $10,000.\\nJ. J. West filed an answer in which he, in effect, admitted as true the allegations of Stockwell's petition, and denied the allegations of Melbern's cross-bill.\\nStockwell filed a general demurrer and a special exception to Melbern's cross-bill, which were overruled, and he duly preserved his exceptions.\\nThe case was tried before a jury upon special issues, and upon the coming in of the verdict a judgment was rendered thereon in favor of Melbern on his cross-bill against Stockwell for $850, and interest, and canceling of the contract between Stockwell and Melbern and West for the purchase of lands, and canceling the duebill for $150 executed by Melbern and West to Stockwell, and adjudging all costs against Stockwell, and foreclosing a lien in favor of Melbern as against Stockwell on certain lands and ordering its sale as under execution. From this judgment Stockwell has brought the case to this court for review by writ of error.\\nThe first assignment of error complains that the court erred in overruling Stockwell's general demurrer to Melbern's answer and cross-bill. The cross-bill is too lengthy to be copied in this opinion, and it must suffice, therefore, to say that after a careful consideration of the assignment and inspection of the answer we have concluded that it is without merit, and is overruled.\\nThe second assignment complains that the court erred in not rendering judgment for plaintiff in error on the admission in the pleadings of West and Melbern.\\nMelbern's answer was in the nature of a confession and avoidance. The matters alleged in avoidance were submitted to the jury, and under their findings a judgment was properly entered in his favor. But this is not true as to West. He did not plead in avoidance of the cause of action asserted by Stockwell, or ask for affirmative relief against him, but the effect of his answer was to admit his liability on the cause of action assorted against him by Stockwell. This being true, the court should have entered judgment for Stockwell against West for the amount sued for; and this court proceeding now to enter such judgment as the court below should have entered now renders judgment for Stockwell against West for $1,000, with 7 per cent, per annum interest thereon from September 24, 1912.\\nStockwell specially excepted to that portion of Melbern's cross-bill in which the latter sought to have established a lien on the land, the subject-matter of the contract, for part of the purchase money of which he had paid to Stockwell the sum of $850, alleging that he was induced to make the payment through the fraudulent representations of Stockwell and West. The third assignment complains of the action of the court in refusing to sustain this exception.\\nThe effect of an exception is to admit the truth of the allegations excepted to. Viewed in this light, Stockwell had procured from Melbern $850 as a payment upon land which Stockwell claimed he owned by a good title which he did not have, and the claim was fraudulently made to induce Mel-bern to part with his money. If Melbern, under his pleadings and proof, was entitled to a rescission of the contract of sale and a return of the purchase money he had paid to Stockwell, ,we see no reason why an implied lien upon the land did not exist in his favor as security therefor. 2 Jones, Liens, \\u00a7 1105, 1106, lays down the rule that:.\\n\\\"Where a purchaser properly declines to complete a contract of sale, it seems there should be a lien for the purchase money paid upon it, wherever a vendor's implied lien exists.\\\" Morris v. Holland, 10 Tex. civ. App. 474, 31 S. W. 690 ; 3 Pom. Eq. par. 1263.\\nThe fourth assignment complains that the court erred in not disposing of all the' parties and all the issues by the judgment appealed from. We had occasion to pass upon this exact question upon an appeal prosecuted by Stockwell from a judgment refusing to grant his application for a temporary injunction restraining the enforcement of the judgment upon the ground upon which this assignment of error is based, and there overruled his contention in that regard. Stockwell v. Mel-bern, 168 S. W. 405. We are satisfied with the ruling there made, and see no reason for receding from it. The assignment is overruled.\\nThe fifth assignment complains that the court erred in not rendering judgment for Stockwell upon the answer of the jury to special issue No. 2. We think the assignment is not well taken. In order to a clear understanding of the assignment and our ruling upon it, we here set out all the special issues submitted to the jury, and the answer of the jury to each, viz.:\\n\\\"Question No. 1: Was the cross-defendant J. J. West on the 28th day of September, 1912, and at the time of the entering into the contract which has been presented in evidence, the agent of the said Elmer P. Stockwell for the sale of said land in question to the said O. W. Melbern? Answer: Yes.\\n\\\"Question No. 2: At the time of the entering into the contract in evidence by and between the various parties to this suit-was the cross-defendant West a bona fide purchaser with the said Melbern, or was the sale to him without consideration? Answer: The contract was a bona fide contract.\\n\\\"Question No. 3: Hid the cross-defendants, Stockwell and West, or either of them, with the other's knowledge, conceal from the cross-plaintiff, O. W. Melbern, the fact that there had been claims of vacancy filed against this particular land, or any part thereof? Answer: Yes.\\n\\\"Question No. 4: If you answer the foregoing question in the affirmative, then answer the following question: Would the cross-plaintiff, Melbern, have entered into said contract had such filings and claims of vacancy against said land been made known to him? Answer: No.\\n\\\"Question No. 5: Did the cross-defendant Stockwell know, or would he reasonably have known, that the said cross-plaintiff, Melbern, would not have entered into said contract had the claims of vacancy, if any, been known to the said Melbern? Answer: Yes.\\n\\\"Question No. 6: If you answer question No. 3 in the affirmative and question No. 4 in the neg-ative and question No. 5 in the affirmative, then you will answer the following question: Did the defendant Melbern, after acquiring knowledge of the alleged fraud, if any, ratify the contract entered into on the 26th day of September, 1912, and placed in evidence in this case? Answer: Yes.\\n\\\"Question No. 7: Did the defendant Mel-bern know that the plaintiff Stockwell was going to hold up the check in his favor given him by the defendant West? Answer: No.\\n\\\"Qiiestion No. 8: If you answer the foregoing question in the negative, then would the defend'ant Melbern have entered into said contract had he known that said cheek was to be held up ? Answer: No.\\n\\\"Question No. 9: If you answer interrogatory No. 3 in the affirmative and interrogatory No. 7 in the negative, and interrogatory No.' 8 in the negative, then were such concealments and acts on the part of the cross-defendants Stockwell and West, willfully made nnd done with the intent to deceive the said Melburn? Answer: Yes.\\n\\\"Question No. 10: If you answer the foregoing question in the affirmative, then, how much, if any, punitive-or exemplary damages should the cross-plaintiff, Melbern, receive against the said Stockwell and West? Answer: Not any.\\\"\\nPlaintiff's requested charge No. 2:\\n\\\"Did or did not cross-plaintiff, Melbern, after he was apprised of the vacancy claim and after he had an opportunity to investigate same, either by writing or by actions, or both, reaffirm or ratify the contract from Stockwell? Answer: In first letter defendant ratified, but after further investigation he did not.\\\"\\nPlaintiff's requested charge No. 6:\\n\\\"Did the defendant Melbern, after acquiring knowledge of the alleged fraud, if any, promptly disaffirm the said contract? Answer: Yes.\\\"\\nWhile it is true that the jury answered.interrogatory No. 2 that the contract was a bona fide contract, it will be clearly seen from the answers to the other questions that the jury meant simply that the contract .was entered into by Melbern with West in good faith and without any knowledge of any of the fraudulent matters which afterwards came to his attention. This is shown by the finding of the jury that Stockwell and West concealed from Melbern the'fact that there had been claims of vacancy filed against the land, and the finding by the jury that Mel-bern would not have entered into said contract had such findings and claims of vacancy against said land been made known to him; and the further finding that Stockwell knew that Melbern would not have entered into said contract had the claims of vacancy been made known to him, and the further finding by the jury that at the time Melbern entered into the contract he did not know that Stockwell .was going to hold up the cheek in his (Stockwell's) favor given him by the defendant West, and the further finding by the jury that the concealments and acts on the part of the. said Stockwell and West were willfully made and done with the intent to deceive said Melbern.\\nIn this view we think it was not error for the court to refuse to render a judgment for Stockwell upon the answer of the jury to the second special issue. This assignment is overruled.\\nWe think -the sixth and seventh assignments are without merit, and they are overruled.\\nWe are of the opinion that the judgment in favor of Melbern against Stockwell should he affirmed, and, in view of the admission in West's answer, that the judgment in favor of West should be reversed, and judgment rendered in Stockwell's favor against him, and it has been so ordered.\\nAffirmed in part; reversed and rendered in part.\\n<&soFor otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes\\n\\u00a9^>Por other eases see same'topie and KEY-NUMBER in. all Key-Numbered Digests and Indexes\"}"
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+"{\"id\": \"8259555\", \"name\": \"STAMPS v. PLATT et al.\", \"name_abbreviation\": \"Stamps v. Platt\", \"decision_date\": \"1920-01-22\", \"docket_number\": \"No. 1045\", \"first_page\": \"47\", \"last_page\": \"48\", \"citations\": \"218 S.W. 47\", \"volume\": \"218\", \"reporter\": \"South Western Reporter\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T21:19:15.467283+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STAMPS v. PLATT et al.\", \"head_matter\": \"STAMPS v. PLATT et al.\\n(No. 1045.)\\n(Court of Civil Appeals of Texas. El Paso.\\nJan. 22, 1920.)\\n1. BILLS AND NOTES <&wkey;132 \\u2014 CONDITION OF ' CLEARING TITEE TO PREVENT MATURITY OF NOTE.\\nWhere note given to purchaser by vendor and another, to guarantee vendor\\u2019s completing title, provided for maturity a year from date, and provided that, \\u201cif title is cleared on or before\\u201d such due date, \\u201cthis note becomes null and void, otherwise it shall remain in full force and effect,\\u201d the fact that there was on such due date a suit pending at vendor\\u2019s expense to clear the title did not prevent the note from maturing at such date, for the only way to avoid its payment in money at maturity was for the vendor to clear the title before the note\\u2019s due date.\\n2. Evidence <&wkey;448 \\u2014 Where not ambiguous, NOTE NOT VARIABLE BY PAROL.\\nWhere a note sued on is not ambiguous, it cannot be varied by parol evidence.\\n3. Guaranty <&wkey;47 \\u2014 Note guaranteeing title MATURED WHERE TITLE NOT CLEARED, NOTWITHSTANDING PENDING ACTION TO CLEAR TITLE.\\nWhere a note given to purchaser by vendor and another, to guarantee vendor\\u2019s completing title, provided for maturity a year from date, and provided that, \\u201cif title is cleared on or before\\u201d such due date, \\u201cthis note becomes null and void, otherwise it shall remain in full force and effect,\\u201d if such note be deemed a contract of guaranty, it matured at its due date, where title had not then been cleared, although there was then pending an action to clear title by the vendor.\\nAppeal from Freestone County Court; G. W. Fryer, Judge.-\\nSuit by A. D. Stamps against T. W. Platt and another. Judgment for defendants, and plaintiff appeals.\\nReversed and rendered for plaintiff.\\nA. B. Geppert, of Teague, for \\u25a0 appellant. Boyd & Bell, of Teague, for appellees.\", \"word_count\": \"957\", \"char_count\": \"5436\", \"text\": \"HARPER, C. J.\\nA. D. Stamp brought this suit against T. W. Platt and W. D. Anderson upon the following instrument in writing:\\n\\\"[Revenue Stamp.]\\n\\\"Streetman, Texas, May 17, 1915. \\\"May 17, 1916, after date, without grace, for value received, I, we, or either of us promise to pay to A. D. Stamps, at Streetman, Texas, three hundred and thirty-eight dollars and eighty-five cents, with interest at the rate of ten per cent, per annum from date, until paid and ten per cent, additional on amount of principal and interest unpaid as attorney's fees, if placed in the hands of an attorney for collection. This note is given as a guaranty to A. D. Stamps that T. W. Platt will clear title on one hundred and twenty acres of Bishop & Platt survey conveyed to A. D. Stamps by T. W. Platt and wife dated September 8, 1915.\\n\\\"If title is cleared on or before May 17, 1916, this note becomes null and void; otherwise, it shall remain in full force and effect.\\n\\\"T. W. Platt.\\n\\\"W. D. Anderson.\\\"\\nFor explanation of its provisions, etc., plaintiff alleged:\\n\\\"That prior to the execution of the note defendant Platt sold plaintiff two tracts of land by deed of warranty; that because of defect in title plaintiff refused to accept the deed; that to induce plaintiff to accept it, Platt executed his note for \\u00a7315, payable to plaintiff, secured by a deed of trust in 75 acres of land. Thereafter Platt sold this land to one Norman; that to adjust matters amicably the note sued on was executed; that the title to the lands has not been cleared as provided in the note, nor has plaintiff secured possession.\\\"\\n\\u2022 Defendants answer by general demurr\\u00e9r, general denial, and specially answer:\\nThat \\\"the instrument sued on it not a promissory note, nor was it intended as such, but was executed in the nature of a bond to clear title to certain lands, and that time is not the essence thereof.\\\" Further that the title to, the lands is clear;- that a good and merchantable title was conveyed to plaintiff, Stamps; that there is a' dispute as to a boundary line between Stamps and one Bigham; that a suit is pending at the expense of defendant Platt; that it will be prosecuted to final determination by defendant Platt. Wherefore this suit is prematurely brought, etc.\\nTried before the court without a jury, and judgment entered for defendant, from which plaintiff (below) appealed, and presents one assignment of error, viz.: The un-contradieted evidence is that the note sued upon is due and owing, and that the time stated in the note is the essence thereof. Appellee has filed.no brief.\\nThe note sued on, copied above, shows that it was executed for value received by defendants, and that the only way to avoid its payment in money at maturity was for defendant Platt to clear the title to the land before maturity which has not been done. The instrument is not ambiguous, so cannot be varied by parol evidence. Smith v. Montgomery, 3 Tex. 199; Rockmore v. Davenport, 14 Tex. 602, 65 Am. Dec. 132; Barnard v. Robertson, 29 S. W. 697; Bank v. Fuller, 191 S. W. 830; Leavell v. Seale, 45 S. W. 171; Riley v. Treanor, 25 S. W. 1054.\\nBut the court heard evidence, and it clearly appears therefrom that it was the understanding of the parties that the note was collectable, if title was not cleared by the time fixed by the writing. So, if properly construed, the writing being a contract of guaranty, it had matured under the facts. Parker v. McKelvain, 17 Tex. 158; Johnson v. Bailey, 79 Tex. 516,15 S. W. 499.\\nFor the reasons indicated, the cause is reversed, and here rendered for appellant.\\ntgssFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes\"}"
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+"{\"id\": \"8264055\", \"name\": \"ANDERSON v. COSSEY\", \"name_abbreviation\": \"Anderson v. Cossey\", \"decision_date\": \"1919-06-21\", \"docket_number\": \"No. 9132\", \"first_page\": \"624\", \"last_page\": \"626\", \"citations\": \"214 S.W. 624\", \"volume\": \"214\", \"reporter\": \"South Western Reporter\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:31:34.163897+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ANDERSON v. COSSEY.\", \"head_matter\": \"ANDERSON v. COSSEY.\\n(No. 9132.)\\n(Court of Civil Appeals of Texas, Ft. Worth.\\nJune 21, 1919.)\\n1. Appeal and Error &wkey;s569(2) \\u2014 Statements of Fact\\u2014Consideration.\\nWhere no statement of facts appeared in the rpcord, instruments incorporated in the transcript which were not agreed to by attorneys, nor approved by the court as statements of fact, nor attached to the pleadings in the trial court, cannot be considered.\\n2. Habeas Corpus &wkey;>46\\u2014Custody of Child \\u2014Jurisdiction of County Court.\\nThe district court has jurisdiction under Const, art. 5, \\u00a7\\u00a7 8 and 16, of a proceeding in habeas corpus to determine . question of the custody of a minor, notwithstanding the county court, under Vernon\\u2019s Sayles\\u2019 Ann. Civ. St. 1914, arts. 4091 and 4122, had appointed a, guardian who had taken the custody of the minor; for the district court, as a court of equity, had jurisdiction to determine whether the guardian was fulfilling his duty and exercising his authority in a manner conformably to the best interests of the minor.\\n3. Habeas Corpus <&wkey;99(3) \\u2014 Custody op Child \\u2014 Ijstteeest op Child. ,\\nIn a habeas corpus proceeding involving the custody of an infant child, the disposition of the custody of the child must be made for the best interests of the child.\\nAppeal from District Court, Wichita County; Edgar Scurry, Judge.\\nPetition for habeas corpus by Mrs. E. T. Anderson against Mrs. Mary Cossey to obtain the custody of a minor of tender years. Erom a judgment dismissing the writ, petitioner appeals.\\nReversed and cause remanded.\\nT. P. Hunter, of Wichita Palls, for appellant.\\nW. E. Fitzgerald, of Wichita Palls, for ap-pellee.\", \"word_count\": \"2116\", \"char_count\": \"12149\", \"text\": \"BUCK, J.\\nAppellant, Mrs. E. T. Anderson, presented to the judge of the Seventy-Eighth judicial district her petition for writ of ha-beas corpus, alleging that her grandson, Ray N. Anderson, Jr., was a minor of tender years and that said minor was being illegally restrained of his liberty by Mrs. Mary Cossey, who appears to be the maternal grandmother of said child. She alleged that the father of said child was in the United States army, serving in Prance, and thus out of the state and the United States, and that the father had waived in favor of petitioner his right to act as the guardian of said child during the duration of the war with Germany, and had instructed plaintiff to procure the possession of said child and take him to the home of petitioner and properly care for and maintain him during the father's absence. Petitioner alleged that she was a fit and proper person to care for and tutor said child, and appellee was not a fit and proper person for such purpose.\\nThe petition was- presented to the judge in chambers, who set the case for hearing and ordered notice to issue to respondent. Respondent filed her plea of res adjudicata, alleging that theretofore the relator had been axipointed by the county court of Wichita county temporary guardian of said Ray N. Anderson, Jr., and had subsequently sought to be appointed permanent guardian of said child; that upon the hearing of said motion and petition the respondent had contested the same, and that after full consideration the court denied relator's petition and denied her the right to the care, custody, and possession of said minor, which care and custody she was seeking in this suit to obtain by a decree of the district court; that said judgment of the county court still remained in full force and effect; wherefore she prayed that plaintiff take nothing by her suit and defendant be discharged with her costs.\\nThe district court rendered its judgment that the cause abate and be dismissed on the ground that the county court of Wichita county had heard and determined the controversy between the same parties who were litigants in the district court, and because the cause in the county court was still pending, and because the right of the plaintiff to the care and custody of said minor had theretofore been adjudged against her in tl)e county court. From this judgment, the plaintiff has appealed.\\nNo statement of facts appears in the record. Only appellant has presented a brief in this court. There appears in the transcript in this case what purports to be certain orders and judgments rendered in the county court proceedings, citation issued out of said court, guardianship bond executed by appellant here, etc., but these instruments are not agreed to by the attorneys, nor approved by the court as a statement of facts, nor attached to the pleadings filed in the district court; hence we are not permitted to consider the same as a statement of facts or for any other purpose. Scaling v. Collins, No. 9106, 214 S. W. 624, recently decided by this court, May 10, 1919, not yet officially published.\\nTherefore we are limited to the consideration of the one question, to wit: Did the district court err in abating and dismissing plaintiff's action for writ of habeas corpus because there had been filed, and at the time of this trial was pending, a suit in the county court involving the right of the care and custody of the minor, Ray N. Anderson, Jr.? In Ex parte Reeves, 100 Tex. 617, 103 S. W. 478, the Supreme Court, in an opinion by Chief Justice Gaines, said:\\n\\\"Under the common-law and equity system of England, which was adopted in Texas as early as 1840, the courts of chancery exercised jurisdiction to appoint guardians for minors and to supervise their conduct with reference to the persons and estates of their wards. 3 Pomeroy's Equity (3d Ed.) \\u00a7 1303 et seq. In section 1307 the same author says: 'In addition to its power to appoint guardians, the court of equity will also exercise its jurisdiction, in a proper case, and to promote the highest welfare of the infant, where there is already a guardian, natural or legal, by controlling the person of the infant, and by removing it personally from the custody of its natural or legal guardian, even from the custody of its own parents.' That' this latter jurisdiction may be lawfully exercised by the district courts of this state is held in Degate v. Legate, 87 Tex. 248, 28 S. W. 281, and in other cases which need not be cited. That' the Constitution does not take from the district courts such jurisdiction is clear from the language we have already quoted from section 8 of article 5. It is equally clear that the Constitution confided the appointment of guardians of minors to the county courts sitting in probate ; but we are unable to see that such courts are given any control over minors, or their estates, save as wards of guardians appointed by them. We think the words 'business of minors,' found in section 16, mean business growing out of'the administration of their estate, and that they cannot he aptly applied to controversies over their custody. It would seem that in framing the provisions of sections 8 and 16 of article 5 of the Constitution the able lawyers who drew it had in view the jurisdiction exercised by courts of equity over minors, and intended to confer so much as relates to guardianship to the county courts, and that which was exercised over their custody, merely, to the district courts.\\\"\\nThe Supreme Court in this case further held that former articles 3502a and 3502b of the Revised Statutes of 1895 were uncon-' stitutional, because in violation of the two sections of article 5 of the Constitution above mentioned. In Estes v. Presswood, 137 S. W. 145, 147, the Galveston Court of Civil Appeals, in an opinion by Chief Justice Pleas-ants, holds that jurisdiction to determine the right to the custody of a minor is conferred by the Constitution upon the district court, and can be invoked only by an original proceeding brought in that court, and cannot be exercised on an appeal in a guardianship proceeding begun in the county court.\\nIt will be remembered that plaintiff's petition alleged that the defendant, Mary Cossey, had said child in her home and refused to deliver it to the petitioner, and further alleged that said Mary Cossey was not a fit and proper person to maintain, care for, and tutor said child. In the answer of Mary Cos-sey, no denial is made of plaintiff's allegation that defendant is in possession and has the custody of the minor. But a plea of the former suit and judgment is made, and that by the terms of said judgment the plaintiff in this suit was denied the possession, care, and custody of said minor in the former suit in the county court. .Hence the respondent does not answer the issues, tendered by relator, to wit, that the respondent is in possession of said minor, and that relator is a proper and fit person and is entitled to have the care and custody of said child and respondent is not so entitled. These issues so presented were properly cognizable by the district court, even though the county court had theretofore denied the appellant here the right of custody of said child and had awarded the custody to some other person. Even though under article 4091, V. S. Civ. Stats., the county judge may appoint a temporary guardian of the person of the minor, or the county court sitting in probate may make a permanent appointment of a guardian for the person, and even though article 4122, Id., may vest in such guardian of the person the right to the charge and control of said minor and the duty of his support and education, and even though said two articles be deemed constitutional and not in conflict with the decision of the Supreme Court in Ex parte Reeves, supra, which questions we do not decide, yet it does not follow that the judgment of the county court denying appellant the right to the care and custody of the minor in question would be res adjudicata of all the issues presented in plaintiff's petition filed in the district court. Even though the county court had appointed a third person other than the two grandmothers guardian of the minor's person, which appears to have been the case, the district court had jurisdiction in an original proceeding to inquire into the question of whether or not such guardian was fulfilling his duty toward his ward and exercising his authority as such guardian in a manner conformable to the best interest of the minor.\\nThe right to the custody of the minor is a question over which courts of equity have jurisdiction, and an order and judgment of the county court awarding the care and custody of a minor to a designated person does not preclude the district court from entertaining jurisdiction, where it is made to appear that the best interest of the minor, which the court recognizes as the paramount consideration, demands that said care and custody should be qhanged. Hall v. Whipple, 145 S. W. 308; Pearce v. Pearce,- 136 Ala. 190, 33 South. 884; Patton et ux. v. Shapiro, 154 S. W. 687. The primary issue tendered by the petition of appellant is not whether or not the applicant is entitled to the care and custody of the minor, but whether or not the best interest of said minor demands that the care and custody be taken from Mrs. Mary Cossey, the person alleged to have said minor in her possession. We think the issue thus presented invoked the authority of the district court to grant a hearing on the merits, and to render a decision awarding the care and custody of the minor to such person as in the sound judicial discretion of the district court should appear for the best interest of the minor. I-Ience we conclude that the court erred in abating and dismissing the suit for the stated reason of the pendency of the action in the county court, and the judgment of the trial court is reversed and the cause remanded, with instructions to grant appellant a hearing upon the merits.. It may be, by the time this cause comes up for hearing again in the district court the father of the child, the natural guardian by law and nature, will have returned from overseas, and that the court will conclude that the care and custody of the child should be awarded to its father.\\nJudgment reversed, and the cause remanded.\\n<&r>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes\\nigxxsFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes\"}"
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diff --git a/tex/8264131.json b/tex/8264131.json
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+"{\"id\": \"8264131\", \"name\": \"RIO GRANDE, E. P. & S. F. R. CO. v. GUZMAN et al.\", \"name_abbreviation\": \"Rio Grande, E. P. & S. F. R. v. Guzman\", \"decision_date\": \"1919-06-12\", \"docket_number\": \"No. 1001\", \"first_page\": \"628\", \"last_page\": \"630\", \"citations\": \"214 S.W. 628\", \"volume\": \"214\", \"reporter\": \"South Western Reporter\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:31:34.163897+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"RIO GRANDE, E. P. & S. F. R. CO. v. GUZMAN et al.\", \"head_matter\": \"RIO GRANDE, E. P. & S. F. R. CO. v. GUZMAN et al.\\n(No. 1001.)\\n(Court of Civil Appeals of Texas. El Paso.\\nJune 12, 1919.)\\n1.Trial &wkey;>352(4) \\u2014 Special Issues \\u2014 Negligence not Pleadeb.\\nIn action by widow for death of husband from injuries received while engaged in loading a truck on a flat car, it was error to submit to.J the jury 'the question of defendant railroad company\\u2019s negligence not pleaded in placing cars on the track where deceased was working.\\n2. Trial <&wkey;352(4) \\u2014 Special Issues \\u2014 Negligence \\u2014 Submission.\\nThe court in submitting to the jury the issue of negligence should confine them to concrete acts of negligence pleaded and the evidence in support thereof, and questions too general in character and based upon grounds of negligence not pleaded should not be submitted.\\n3. Trial \\u00a1&wkey;350(2) \\u2014 Requested Issues \\u2014 Evi-dentiary Matters \\u2014 Refusal.\\nIn action for wrongful death, requested issues relating to evidentiary matters held properly refused.\\n4.'Trial <&wkey;352(l) \\u2014 Submission of Issues\\u2014 Ignoring Evidence.\\nIn action by widow against railroad company for death of her husband from injuries received in loading truck upon a flat car, requested submission to jury of an issue ignoring evidence showing that defendant\\u2019s switching crow may have known that deceased was in a dangerous position held properly refused.\\n5. Indemnity <&wkey;13(2) \\u2014 Joint Tort-Feasors.\\nWhere a defendant railroad company was an active tort-feasor guilty of affirmative negligence causing the death of an employ\\u00e9 of another company also charged with negligence, the railroad company is not entitled to recover over against the other company. ,\\n6. Appeal and Error <&wkey;1173(2) \\u2014 Decision \\u2014Reversal as to Ooparties.\\nIt is within appellate court\\u2019s discretion to reverse as to one and affirm as to the other, or to reverse generally as to all of two joint tort-feasors who were sued in the same action, from which one of them receiving a judgment in its favor did not appeal.\\n7. Master and Servant \\u215e\\u00bb286(3) \\u2014 Peremptory Charge \\u2014 Place for Work.\\nIn action against M. company and a railroad company for death of an employ\\u00e9 of M. from injuries received while loading a truck on a flat -car, peremptory charge in favor of M. held improper, in view of the placing by M. of deceased in a dangerous place to work, being an issue which would authorize a recovery against that defendant.\\nAppeal from District Court, El Paso County; F. G. Morris, Special Judge.\\nAction by Efren Aguirre Guzman against the Rio Grande, El Paso & Santa F\\u00e9 Railroad Company and the National Mine & Smelter Company. Fhom a judgment for the Smelter Company and in favor of plaintiff against the Railroad Company, the Railroad Company appeals.\\nReversed and remanded as to both defendants.\\nTurney, Burges, Culwell, Holliday & Pollard, of El Paso, for appellant.\\nBrown & Wilchar, Walthall & Gamble, Jackson & Isaacks, and Breedlove Smith, all of El Paso, for' appellees.\", \"word_count\": \"1650\", \"char_count\": \"9658\", \"text\": \"HIGGINS, J.\\nMrs. Guzman, appellee, brought this suit against the Rio Grande, El Paso & Santa F\\u00e9 Railroad Company and the National^ Mine & Smelter Company, for herself and'in behalf of her minor children, to recover damages resulting from, the death of Luis Guzman, her husband and the father of her minor children.\\nIt was alleged that deceased, while in the employ of the mine and smelter company, was directed by his superior to load a mo-tortruck onto a car at the depot of the Santa F\\u00e9 Company, and while in the performance of this service he was directed by his superior to spot a flat car on which the truck was to be loaded at the .platform of the depot and, in accordance with the order so received, was attempting to move the car with pinch bars, when without warning, other cars were shunted in by the Santa F\\u00e9 Company, and deceased was injured so that his death resulted. Negligence was charged against the mine and smelter company in failing to keep a lookout and warn deceased of his danger, with failure to provide him with a safe place to work, and in ordering him to work under the circumstances at the time and place of the injury. Negligence against the Santa F\\u00e9 Company was charged in failing to give notice or warning of the movement of the car that was shunted in and in shunting in the car without an employe thereon to control its movement and without having an engine attached to the car to control its movement. It was further alleged that the joint acts of negligence on the part of the defendants, as above stated, proximately caused the death of the deceased.\\nCase was tried before a jury and a peremptory instruction given to find in favor of the mine and smelter company. As to the Santa F\\u00e9 Company, the case was submitted upon special issues; the first issue reading as follows:\\n\\\"Question No. 1. Did the defendant railroad company fail to use such care to avoid injuring the deceased, Luis Guzman, at the time and place whore he was killed, as a person of ordinary prudence would have used, under the same or similar circumstances, in placing cars on the track where deceased was working?\\\"\\nOther issues submitted related to the question of damage resulting from the death of deceased and of apportionment The first question was answered by the jury in the affirmative, and judgment was thereupon rendered in favor of the National Mine & Smelter Company and in favor of Mrs. .Guzman against the Santa F'\\u00e9 Company for the amount of damages found and apportioned by the jury to her and her minor children. From .the judgment rendered, the Santa F\\u00e9 Company prosecutes this appeal.\\nOpinion.\\nIt is first assigned as error that the court erred in submitting question No. 1 because the question as propounded was too general in character. This is sustained. Upon the question submitted the jury may have found against- appellant upon grounds of negligence not pleaded. The jury was authorized to find that appellant was guilty of negligence not pleaded in placing cars on the track where the deceased was working. They should have been confined to a consideration of the concrete acts of negligence pleaded and in support of which evidence had been adduced. Seasonable objection was made by appellant to the form in which this issue was submitted, and the error therein indicated is reversible. Ry. Co. v. Coles, 183 S. W. 138; Jamison Gin Go. v. Measles, 207 S. W. 365; Ry. Co. v. Harvey, 27 S. W. 423; Martin v. Stires, 171 S. W. 837.\\nIn the case first cited, there were other findings upon issues properly submitted which cured the error in the issue there considered, but in the case at bar no such condition obtains. The judgment rests primarily upon the jury's answer to the question quoted- above, and such answer may have been predicated upon a ground of negligence not presented by the pleadings.\\nV-arious assignments complain of the refusal to submit requested special issues. None of them present error. Some of the requested issues relate to evidentiary matters ; some immaterial issues. The issue presented under the fifth assignment ignores that phase of the evidence showing that appellant's switching crew may have been charged with notice that deceased was in a position of danger. The issue presented by the sixteenth assignment is immaterial. If answered as desired by appellant, it would not have affected its liability to appellee.\\nCertain assignments relate to rulings upon evidence. None present error. Other assignments question the sufficiency of the evidence. In view of retrial,.it would be improper to comment upon the evidence further than to say that it is ample to support a verdict ana judgment against this appellant. Since the case must, be reversed, it is unnecessary to pass upon those assignments asserting that the verdict is excessive.\\nUnder the thirteenth and fourteenth assignments, the proposition is advanced that as a matter of law the mine and smelter company is iiable over to this appellant for any judgment obtained by the appellee. The evidence in this record does not show the appellant to have been guilty of mere passive negligence. On the contrary, it is sufficient to support a finding that it was an active tort-feasor guilty of affirmative negligence which proximately caused or contributed to cause the death of deceased. Upon this state of the evidence, it is not entitled to recover over against the mine and smelter company. Ry. Co. v. Nass, 94 Tex. 255, 59 S. W. 870.\\nUpon the record we would be author ized to affirm the judgment as to the mine and smelter company, but, in cases such as is here presented, this court may affirm as to one defendant and reverse as to the other, or in its discretion the case may be reversed generally as to all defendants. Ry. Co. v. Enos, 92 Tex. 577, 50 S. W. 928; Hamilton v. Prescott, 73 Tex. 565, 11 S. W. 548; Wimple v. Patterson, 117 S. W. 1034; Telephone Co. v. Wilkins, 183 S. W. 429; Ry. Co. v. Smith, 99 S. W. 171.\\nWe are of the opinion that in this case the reversal should be general and the case retried as to both defendants.\\nIn this connection, we desire to say, for the guidance of the court below upon the next' trial, that upon the record presented the peremptory charge in favor of the mine and smelter company and against Mrs. Guzman was improper. The mine and smelter company placed the deceased, its employe, in a dangerous place to work without taking any precaution to guard against the danger incident to the working place. This presented an issue of negligence against that defendant which would authorize recovery against it by plaintiff.\\nReversed and remanded as to both defendants.\\n<S^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes\"}"
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diff --git a/tex/8266160.json b/tex/8266160.json
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+"{\"id\": \"8266160\", \"name\": \"HARRIS v. SHEAR\", \"name_abbreviation\": \"Harris v. Shear\", \"decision_date\": \"1915-04-21\", \"docket_number\": \"No. 5450\", \"first_page\": \"136\", \"last_page\": \"137\", \"citations\": \"177 S.W. 136\", \"volume\": \"177\", \"reporter\": \"South Western Reporter\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T01:20:25.959654+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HARRIS v. SHEAR.\", \"head_matter\": \"HARRIS v. SHEAR.\\n(No. 5450.)\\n(Court of Civil Appeals of Texas. Austin.\\nApril 21, 1915.\\nRehearing Denied May 26, 1916.)\\n1. Fraud <\\u00a7=^13 \\u2014 Liability\\u2014Knowledge.\\nFalse representations that the corporation, stock in which was sold to plaintiff, owned three lakes, which were worth $26,000 each, and was solvent, and that the defendant had personally inspected the property, were representations that a fact as to which accurate knowledge could be had was known to defendant, which constitute fraud without a showing that defendant knew of the falsity of such representations.\\n[Ed. Note. \\u2014 For other cases, see Fraud, Cent. Dig. \\u00a7\\u00a7 3-5; Dec. Dig. <@=>13.]\\n2. Fraud <@=^64\\u2014 Actions \\u2014 Sufficiency of Evidence \\u2014 Damages.\\nIn an action for deceit in the sale of corporate stock, where the plaintiff\\u2019s evidence does not show that the stock was of no value, but fails to show what its value was, while defendant\\u2019s evidence was sufficient to show that it was worth par value, defendant is entitled to a directed verdict.\\n[Ed. Note. \\u2014 For other cases, see Fraud, Cent. Dig. \\u00a7\\u00a7 65y2, 67-71; Dec. Dig. <\\u00ae^64.]\\n3. Appeal and Error. <@=^1050 \\u2014 Harmless Error \\u2014 Admission of Evidence \\u2014 Immaterial Evidence.\\nThe admission of immaterial evidence is not reversible error, where no injury to appellant is shown.\\n[Ed. Note. \\u2014 For other cases, see Appeal and Error, Cent. Dig. \\u00a7\\u00a7 1068, 1069, 4153-4157, 4166; Dec. Dig. \\u00ae^1050.]\\nAppeal from District Court, MeLennan. County; Tom L. McCullough, Judge.\\nAction by James Shear against Langdon Harris, to recover damages for fraud and deceit. Judgment for the plaintiff, and defendant appeals.\\nReversed and remanded.\\nSleeper, Boynton & Kendall, of Waco, for appellant. Scott & Ross, of Waco, for ap-pellee.\", \"word_count\": \"1312\", \"char_count\": \"7510\", \"text\": \"JENKINS, J.\\nAs we construe the petition in this case, it is an action to recover damages for alleged fraud and deceit in the sale of stock in the Velasco Fish & Oyster Company, a private corporation.\\nAppellant assigns error upon the refusal of the court to sustain a general demurrer, and argues that the same should have been sustained for the reason that it is not alleged that appellant knew the falsity of the representations made by him at the time of the sale. The petition alleges that appellant represented that the corporation was the owner of three certain lakes, that he had inspected the property of the corporation, and that it was solvent; that the lakes were worth $25,000 each; that the property was located at Velasco, distant some 200 miles from Waco, where the plaintiff resided; that plaintiff had never seen the property of the corporation; that he was well acquainted with the appellant, and had confidence in his representations and relied solely upon said representations, which facts were known to appellant, and that the corporation was insolvent at the time of said sale; that it was not the owner of either of said lakes; and that its total property was of a value not to exceed $1,000 to $1,200, for which it was indebted in the sum of $3,000. When a party makes a positive representation that a fact is known to him, the same being a fact about which accurate knowledge could be ascertained, and being material, if such rexiresentation is false, it amounts to a positive and active fraud, for which he is liable in damages. McCord-Collins Co. v. Levy, 21 Tex. Civ. App. 109, 50 S. W. 606; Mitchell v. Zimmerman, 4 Tex. 80, 51 Am. Dec. 717; Watson v. Baker, 71 Tex. 750, 9 S. W. 867; Loper v. Robinson, 54 Tex. 510; Bank v. Bank, 77 S. W. 241; Beatty v. Bulger, 28 Tex. Civ. App. 117, 66 S. W. 896; Wright v. Mortgage Co., 42 S. W. 789; Seale v. Baker, 70 Tex. 290, 7 S. W. 742, 8 Am. St. Rep. 592; Byers v. Maxwell, 101 Mo. App. 179, 73 S. W. 739; Kountze v. Kennedy, 147 N. Y. 124, 41 N. E. 414, 29 L. R. A. 363, 364, 49 Am. St. Rep. 651. In the case last referred to it is said: \\\"The gravamen of the action [for deceit] is actual fraud, and nothing less will sustain it.\\\" This does not seem to be the doctrine in this state, but in that case it was held that if the representations are made upon assumed personal knowledge, action for deceit will lie. And in 20 Cyc. p. 27, it is said:\\n\\\"It is not always necessary that the speaker should actually know that his representation is false. If the statement is a matter susceptible of accurate knowledge, and he makes it recklessly without any-knowledge of its truth or falsity, and in the form of a positive assertion, calculated to convey the impression that he knows it to be true, the representation is equally fraudulent. The rule just stated applies although the speaker honestly believes that the fact which he represents as existing actually does exist. The fraud consists in passing off his opinion or belief under the guise of knowledge.\\\"\\nTo the same effect is Bullitt v. Farrar, 42 Minn. 8, 43 N. W. 566, 6 L. R. A. 149, 18 Am. St. Rep. 485. Upon these authorities we hold that the court did not err in overruling the general demurrer.\\nAppellee objects to a consideration of all other assignments of error except the seventh, for the reason that they are not in compliance with the rules. These objections are well taken, but we will consider most of the assignments, in view of the fact that the same questions will arise upon another trial of this case.\\nWe sustain appellant's third proposition under his seventh assignment of error, which assignment is that the court erred in refusing to peremptorily instruct a verdict for the defendant; the third proposition being that there is no evidence showing the value of the stock sold to appellee at the time of such sale. This point was also raised by appellant's tenth assignment of error, which is:\\n\\\"The court erred in submitting to- the jury, over defendant's exception, special issue No. 15, reading as follows: 'Question 15. What was the value of the stock purchased by plaintiff, Shear, at the time of the purchase?' In response to this question the jury answered, 'No value.' \\\"\\nThe testimony of the appellee, without reference to the testimony upon the part of the appellant, does not show the stock was of no value, and does not show what value said stock possessed at the time of the sale. The testimony on the part of the appellant is sufficient to show that the stock at the time of the sale was worth par value.\\nThe testimony objected to under the third assignment of error appears to have been immaterial, but it is not shown that appellant suffered any injury by -reason of the admission of such testimony. The statement offered to be proven, as shown by the fourth assignment, of error, was that of the defendant made to the corporation not under oath, and the court did not err in excluding the same. The testimony offered, as shown by the fifth and sixth assignments of error, should have been admitted.\\nThere is no merit in the eighth and ninth assignments of error. The eleventh and twelfth assignments are substantially the same as the tenth. There was no error in the action of the court as complained of in the thirteenth assignment.\\nThe other assignments are to the effect that the findings of the jury are not sustained by the evidence. It is not necessary for us to pass on these, as we cannot tell what the evidence will be upon another trial of this cause.\\nFor the reasons stated, the judgment of the trial court is reversed, and this cause is remanded for a new trial in accordance with this opinion.\\nReversed and remanded.\\n(g^jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes\"}"
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+"{\"id\": \"8278804\", \"name\": \"GULF, C. & S. F. RY. CO. v. McKINNELL\", \"name_abbreviation\": \"Gulf, C. & S. F. Ry. Co. v. McKinnell\", \"decision_date\": \"1915-12-19\", \"docket_number\": \"No. 8064\", \"first_page\": \"937\", \"last_page\": \"939\", \"citations\": \"173 S.W. 937\", \"volume\": \"173\", \"reporter\": \"South Western Reporter\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:04:53.012367+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GULF, C. & S. F. RY. CO. v. McKINNELL.\", \"head_matter\": \"GULF, C. & S. F. RY. CO. v. McKINNELL.\\n(No. 8064.)\\n(Court of Civil Appeals of Texas. Ft. Worth.\\nDec. 19, 1915.)\\n1. Trial <&wkey;304r \\u2014 Misconduct oe Jury \\u2014 Ee-eect.\\nJurors in a personal injury action, who while deliberating on the verdict discussed the proposition that plaintiff would be required to pay a large sum to his attorney for services rendered, and that by reason thereof a larger verdict was rendered than otherwise would have been rendered, were guilty of misconduct necessitating the setting aside of the verdict.\\n[Ed. Note. \\u2014 For other cases, see Trial, Cent. Dig. \\u00a7\\u00a7 725-727; Dee. Dig. &wkey;804.]\\n2. Evidence <&wkey;553 \\u2014 Opinion Evidence \\u2014 Assumption oe Fact.\\nA question asked a physician, which assumes a fact not shown by any testimony, is improper, when calling for the opinion of the physician.\\n[Ed. Note. \\u2014 For other cases, see Evidence, Cent. Dig. \\u00a7\\u00a7 2369-2374; Dec. Dig. <&wkey;558.'j\\n3. Damages &wkey;>16S \\u2014 Personal Injury \\u2014 Assessment oe Damages \\u2014 Evidence\\u2014Admissibility.\\nWhere plaintiff, suing for a personal injury, testified that after the accident he felt smart sensations in his hip, groin, and leg, and a feeling of pain on standing, and that following the accident his former ability to walk had been greatly impaired, testimony that plaintiff, after the accident, had been observed to walk with a limp was admissible, as against the objection that a limp was not the proximate result of any injury.\\n[Ed. Note. \\u2014 For other cases, see Damages, Cent. Dig. \\u00a7\\u00a7 480, 482-486; Dec. Dig. <i&wkey;I68.J\\n4. Evidence <&wkey;128\\u2014 Personal Injuries \\u2014 Assessment oe Damages \\u2014 Declarations oe Person Injured \\u2014 Res Gestie.\\nUnder the rule that testimony of complaints of present pain and suffering is admissible on the principle of res gestas, the admission of the testimony of a -physician that plaintiff complained of tenderness in his spine was not erroneous, in the absence of anything to indicate that complaint of tenderness was not within the rule; but the admission of testimony that plaintiff complained of becoming tired when standing, and that he could not work as long as previously, and did not sleep as well as he formerly did, was erroneous, because not within the rule.\\n[Ed. Note. \\u2014 For other cases, see Evidence, Cent. Dig. \\u00a7\\u00a7 383-387; Dec. Dig. &wkey;128.]\\n5. Trial &wkey;>194 \\u2014 Instructions\\u2014Weight oe Evidence.\\nAn instruction in a personal injury action, directing the jury to consider the earning capacity and ability of plaintiff before 'and since the accident causing the injuries complained of, if from a preponderance of the evidence the jury find a difference therein, is not on the weight of the evidence.\\n[Ed. Note. \\u2014 For other cases, see Trial, Cent. Dig. \\u00a7\\u00a7 413, 436, 439-441, 446-454, 456-466; Dec. Dig. t&wkey;>194.]\\n6. Damages <&wkey;187 \\u2014 Personal Injuries \\u2014 Loss oe Ability to Earn Money.\\nTestimony of plaintiff, suing for a personal injury, that in some lines of business his ability to earn had been diminished by reason of the injury, was not necessarily overcome by proof that he received his regular pay during the time he was laid off after the accident, and that since resuming his employment his salary had been increased.\\n[Ed. Note. \\u2014 For other cases, see Damages, Cent. Dig. \\u00a7 509; Dec. Dig. <&wkey;>187.]\\nAppeal from District Court, Tarrant County; Marviri. H. Brown, Judge.\\nAction by Harry L. McKinnell against the Gulf, Colorado & Santa F\\u00e9 Railway'Company. Prom a judgment for plaintiff, defendant appeals.\\nReversed and remanded.\\nTerry, Cavin & Mills, of Galveston, and Lee & Lomax and W. D. Smith, all of Ft. Worth, for appellant. Clendenen & Simmons, of Ft. Worth, for appellee.\", \"word_count\": \"2090\", \"char_count\": \"12298\", \"text\": \"DUNKLIN, J.\\nAs a result of a collision between two trains operated by the Gulf, Colorado & Santa F\\u00e9 Railway Company, near the town of Davis, Okl.-, Harry L. Mc-Kinnell, a railway mail agent, who was riding on one of those trains, sustained personal injuries, and he instituted this suit against the company to recover damages therefor. He recovered judgment for the sum of $6,500, and the company has appealed.\\nAs one of the grounds stated in the defendant's motion for new trial, it was alleged, in substance, that the jury, during their retirement for the purpose of reaching a verdict, improperly considered and were influenced by suggestions and arguments, made by some of them to the rest, that plaintiff would be required to pay from $1,-500 to $2,500 to his attorneys for their services in prosecuting the suit, and that damages should be allowed in a sum sufficient to cover that expense, in addition to the amount necessary to compensate him for Ms injuries. An affidavit of Geo. L. Wilkinson, one of the jurors, was attached to the motion. That affidavit reads in part as follows:\\n\\\"That before the jurors had agreed on the amount of the verdict afiiant stated to the other jurors that he thought $3,000 would be full compensation to the plaintiff, 'and that he thought the verdict should be returned for that amount. That following the suggestion of affiant as to the amount the verdict should be for, several of the jurors stated that plaintiff would have to pay his attorneys, and there was quite a general discussion as to attorney's fees; it being stated by some of the jurors that the attorneys would get $2,000 to $2,500. That this was stated, as affiant understood, as a reason why affiant and others, who were in favor of giving plaintiff an amount in the neighborhood of $3,000' should consent to give more. That afiiant was influenced by the argument as to attorney's fees, and finally consented to give $6,500 to plaintiff because of the argument that plaintiff would have to pay his attorneys out of the judgment he recovered.\\\"\\nIn addition to that affidavit, the court, in considering the motion, heard the oral testimony of Samuel Oalcaterra, O. I. Brown, and S. O. Skieldig, also members of the jury, who corroborated the affidavit of Geo. L. Wilkinson to the effect that plaintiff would likely be required to pay from $1,500 to $2,- 500 as attorney's fees, and from whose testimony it clearly appears that that suggestion and argument influenced them, and probably other jurors, who did not testify, to allow damages in a sum to cover such expenses over and above the amount necessary to compensate plaintiff for his injuries. No testimony was offered to rebut the testimony of these jurors, and we are of'the opinion that the court erred in refusing to grant new trial. Eor this error the judgment must be reversed.\\nIn view of another trial, we will make some observations upon questions presented by other assignments. Dr. McLean, witness for the plaintiff, testified that:\\n\\\"If the plaintiff had a partial dislocation of the hip, the witness could make a rational guess as to what was the matter with the plaintiff's hip, and that he doubted if plaintiff could be cured of the pain in the hip.\\\"\\nObjection was urged to this testimony by the defendant; one of the grounds of the objection being that no evidence was introduced to show any partial dislocation of plaintiff's hip. We are of the opinion that the testimony should have been excluded upon that objection, the truth of which we find was sustained by other evidence, which was uncontroverted.\\nAppellant insists that the court erred in admitting testimony of the witnesses O'Sullivan and Dr. McLean to the effect that after the wreck in question plaintiff was observed to walk with a limp ; the ground of the objection to such testimony being that there was no competent evidence to show that such limp was the proximate result of any injury received in the wreck. That objection was without merit, in view of plaintiff's testimony as follows:\\n\\\"After I was extricated from the wreck, I felt smart sensations in my hip, in my groin, and in my leg, and a feeling of pain on standing,\\\" and, further, that following the accident his former ability to walk had been greatly impaired.\\nDr. McLean testified that during the six or eight months subsequent to the wreck, and while plaintiff was under his observation, the plaintiff complained of a tenderness in his spine and of becoming tired when standing on his feet, that he could not work as long as previously on account of getting exhausted, and that he did not sleep as well as he formerly did. This testimony was objected to as. a whole, upon the ground that it was hearsay, and therefore incompetent. It is a familiar rule that testimony of complaints of present pain and suffering is admissible upon the principle of res gestse. Evidently the testimony was admitted under that rule. It does not appear whether or not complaint of tenderness in the spine was made under circumstances that would make it admissible under that rule, and therefore we \\\"cannot say that it affirmatively appears that the court erred in admitting that statement; but it is apparent that the rest of the testimony was not admissible under that rule, being hearsay and subject to the objection urged.\\nComplaint is made of the refusal of the court to give the defendant's requested charge No. 6, which was, in effect, that plaintiff was not entitled to recover for a certain physical condition mentioned in that instruction, and alleged in plaintiff's petition. Some evidence was offered relative to that condition, which was of such a nature as might influence the jury in the rendition of their verdict; and, while the court did not submit that issue in his general charge, we are of the opinion that the requested instruction should have been given to insure the defendant against any possible harm by reason of the testimony relative to that condition.\\nThe sixth assignment of error is addressed to the admission of testimony relative to an operation performed for the particular physical condition last referred to. The objection to the testimony was that there was no proof that such operation was made necessary by reason of the accident. Upon a careful review of the record, we are of the opinion that the objection should have been sustained.\\nThe charge of the court upon the measure of damages reads as follows:\\n\\\"In arriving at the amount of damages., if any you give to the plaintiff, you may take into consideration the physical pain, if any, sustained by the plaintiff by reason of said wreck, and such as you may find, if any, he will suffer in the.future. You may also take into consideration the earning capacity and ability of the plaintiff before and since said accident, if from a preponderance of the evidence in the case you find a difference therein, and if from a preponderance of the evidence in the ease you find that the plaintiff has sustained injuries, if any, from which he has not yet recovered, if you so find, or from which he will not in the future recover, if you so find, then you may take such fact or facts into consideration, if any you find, in arriving at the amount of damages, if any, that you may assess against the defendant and for the plaintiff.\\\"\\nError has been assigned to that instruction upon the ground that the language used, \\\"You may also take into consideration the earning capacity and ability of the plaintiff before and since said accident, if from a preponderance of the evidence in the case you find a difference therein,\\\" is a charge upon the weight of the evidence, and upon the further contention that there was no proof that plaintiff's earning capacity had been lessened by reason of his alleged injuries. Clearly the charge is not subject to the criticism that it was upon the weight of the evidence. It is a correct statement of the law upon that issue. Testimony offered by the plaintiff tended to show that his ability to earn money in some lines of business at least had been diminished by reason of the injury which he claimed to have received in the accident. Such testimony was not necessarily overcome by proof that he received Ms regular pay from the government during the six months he was \\\"laid off\\\" after the accident, and since resuming tlie duties of Ms employment his salary has been increased to a sum greater than he received before the accident. Accordingly the assignment last noted is overruled.\\nFor the reasons noted, the judgment is reversed, and the cause remanded.\\n<g=3Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes\"}"
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+"{\"id\": \"8279746\", \"name\": \"KENNEDY et al. v. BENDER\", \"name_abbreviation\": \"Kennedy v. Bender\", \"decision_date\": \"1911-03-15\", \"docket_number\": \"\", \"first_page\": \"524\", \"last_page\": \"529\", \"citations\": \"135 S.W. 524\", \"volume\": \"135\", \"reporter\": \"South Western Reporter\", \"court\": \"Supreme Court of Texas\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T21:30:12.075667+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"KENNEDY et al. v. BENDER.\", \"head_matter\": \"KENNEDY et al. v. BENDER.\\n(Supreme Court of Texas.\\nMarch 15, 1911.)\\n1. Corporations (\\u00a7 SO ) \\u2014 Purchasers of Stock \\u2014 Fraud\\u2014Rescission.\\nA purchaser of corporate stock under fraudulent representations of stockholders acquires title to the stock, and must pay therefor, and his only remedy against the stockholders is by action for the fraud.\\n[Ed. Note. \\u2014 For other cases, see Corporations, Cent. Dig. \\u00a7 246; Dec. Dig. \\u00a7 80. ]\\n2. Fraud (\\u00a7 35 ) \\u2014 Waiver of Right of Action.\\nThe act of a purchaser of corporate stock in exercising his rights as a stockholder does not affect his right of action for deceit against stockholders fraudulently, inducing Jiim to purchase the stock, unless his purpose in so acting is to waive his right of action for the fraud.\\n[Ed. Note. \\u2014 For other cases, see Fraud, Cent. Dig. \\u00a7 30; Dec. Dig. \\u00a7 35. ]\\n3. Fraud (\\u00a7 35 ) \\u2014 Waiver of Right of Action.\\nActs done in affirmance of a contract may amount to a waiver of the cause of action for deceit inducing the contract only where they are done with knowledge of the fraud and of the facts, and with the intention to abide by the contract, and waiving all right to recover for the fraud; and acts which, though in af-firmance of the contract, do not indicate any intention to waive the fraud, do not operate as a waiver.\\n[Ed. Note. \\u2014 For other cases, see Fraud, Cent. Dig. \\u00a7 30; Dee. Dig. \\u00a7 35. ]\\n4. Fraud (\\u00a7 35 ) \\u2014 Waiver of Right of Action.\\nA purchaser of corporate stock was induced to purchase by the fraud of two stockholders. After the discovery of the fraud he attended a stockholders\\u2019 meeting. The two stockholders and another offered at the meeting to donate for the bemffit of the corporation stock issued to them, ana the purchaser voted for a resolution accepting the donation, and providing that an amount of the stock equal to that held by certain of the stockholders should be given to other stockholders to make their' stock equal to that of the former stockholders. The purchaser obtained his share of the stock so donated. Held not to show a waiver by the purchaser of his right to sue the two stockholders for deceit.\\n[Ed. Note. \\u2014 For. other cases, see Fraud, Cent. Dig. \\u00a7 30; Dec. Dig. \\u00a7 35. ]\\nRamsey, J., dissenting.\\nCertified. Questions from Court of Civil Appeals of' First Supreme Judicial District.\\nAction by J. M. Bender against Edward Kennedy and another. From a judgment for plaintiff, defendants appealed to the Court of Civil Appeals of the First Supreme Judicial District, and it reversed the judgment, and certified questions to the Supreme Court.\\nQuestions answered.\\nS. Taliaferro and G. D. Teat, for appellants. Wilson & Cole, for appellee.\\nFor other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep\\u2019r Indexes\", \"word_count\": \"5745\", \"char_count\": \"32750\", \"text\": \"BROWN, C. J.\\n' Certified- questions from the Court of Civil Appeals of the First Supreme Judicial District:\\n\\\"The above case is now pending in this court on motion for rehearing, and the questions here certified are material to a disposition of such motion. The 'following is a statement of the matters material to a decision of such questions:\\n\\\"J. M. Bender instituted this action in the district court to recover $400 actual and $500 exemplary damages for willful fraud and deceit practiced upon him by defendants, Kennedy and McKallip, whereby he was induced to purchase four shares of stock in a corporation, of the par value of $400, for which he paid that amount in cash. The fraudulent representations consisted of statements that $78,000 of the capital stock of the corporation, capitalized at $100,000, had been paid in, in cash, and that the corporation was in a sound financial condition. Kennedy was one of the directors, and the other defendant, McKallip, was the president of the corporation, each owning $25,000 of the stock, for which they had in fact paid nothing; the corporation being bankrupt at the time.\\n\\\"Among other defenses pleaded by defendants it was alleged that after discovery by plaintiff of the fraud, and of the falsity of the representations of defendants, whereby he had been induced to part with his money, he had ratified and affirmed the contract; and had so condoned the fraud as to be es-topped to set it up as a basis for this action. It was specially alleged that, after the discovery by plaintiff of the falsity of the said representations, there was a meeting of the stockholders, at which Bender was present, when the proceedings were had that are hereinafter set forth.\\n\\\"Upon a trial with a jury there was a verdict for plaintiff for $400 actual and $250 exemplary damages, for which judgment was rendered. Defendants brought the case to this court on appeal, and on hearing of the appeal it was held that the evidence as- to the fraud and deceit was sufficient to entitle plaintiff to recover both exemplary and actual damages in the amounts adjudged, but that by reason of the following facts, which were found to have been established by the undisputed evidence, plaintiff had condoned the fraud and was estopped to set it up as a basis for this action. This can best be understood by the following quotation from the opinion:\\n\\\"The only ground of ratification or condo-nation after knowledge of the fraud, entitled to consideration, is that based upon the ac tion of appellee at the stockholders' meeting of November 13, 1906, some weeks after,' according to his own testimony, he had acquired full knowledge of the insolvent condition of the corporation, and of the falsity of the representations that had been made to him as an inducement to purchase the stock. This is what occurred at that meeting of stockholders: Appellants McKallip and Kennedy and Frank Greenaway, in view of the' financial condition of the corporation, then trembling, as was afterwards developed, on the verge of bankruptcy, offered to donate to the corporation certain shares of their stock \\u2014that is, Kennedy $24,000 worth, McKallip the same, and Greenaway $5,000 worth\\u2014 with the understanding that the certificates therefor be canceled and the stock, or so much thereof as might be necessary, be resold for the benefit of the company at such prices as might be determined by the board of directors; the donation being made for the purpose of relieving the financial condition of the company and putting it on its feet as a going concern. A resolution was offered to accept this proposition, the stock to be placed upon the market for sale at a minimum price of 50 cents on the dollar, the proceeds to be used to pay the debts and operating expenses of the concern, and any residue to be put in the treasury for the use of the company. This resolution having been read and seconded, the minutes show that appellee, Bender, offered an amendment in substance that inasmuch as certain stockholders, himself among the number, had bought and paid for their stock at par, the stock so held by them should be increased, so as to give them two shares for each share so held; that is, to double their stock, and make it really cost only 50 cents on the dollar of its face value. Appellee testified that one Blair, another stockholder who had bought at par, offered this amendment, and he seconded it; but that is immaterial. As amended, the resolution was unanimously adopted, and it is clearly and undisputably shown that. appellee was present .and acted with the others in adopting the amended resolution. The trial court refused to submit this issue to the jury.\\n\\\"Upon the facts above stated this court reversed the judgment and rendered judgment for appellants. As will be noticed from the opinion, Associate Justice Reese dissented from this conclusion. The jurisdiction of this court is final, and such dissent does not require that the point of difference be certified; but inasmuch as the' parties have no right of appeal, and the majority are in doubt as to .the correctness of their conclusion, and in view of the general importance of the question, we respectfully certify to your honors the following questions:\\n\\\"First Question. Do the foregoing facts with regard to the action of the plaintiff, Bender', at the stockholders' meeting, of themselves, as matter of law, operate as an estoppel upon plaintiff, and bar him of his right to recover in this action?\\n\\\"If this question be answered in the negative, we certify this\\u2014\\n\\\"Second Question. Upon the facts stated, which were established by the undisputed evidence, should this issue of estoppel, through condonation of the fraud, have been' submitted to the jury?\\\"\\nTo the first question we answer, \\\"No.\\\" When Bender purchased the stock of the corporation under the' fraudulent representations of the appellants, he acquired title to the stocl^ and became obligated to pay for it according to his contract. He had no contract with the appellants. Therefore, as to them, he had not the right of rescission. His only remedy was an action against the appellants for damages caused by the fraudu-. lent representations whereby they induced him to purchase the stock. Hence nothing that Bender did in the exercise of his rights as\\\" a stockholder in the corporation can be looked to as in any way affecting his claim for damages against appellants, unless it be shown by the evidence that his purpose in so acting was- to waive his right against them, or that in some way he acquired something of value from the appellants, with the purpose and intent of waiving his right of action for damages. 20 Cyc. p. 93; Schmidt v. Mesmer, 116 Cal. 271, 48 Pac. 54. \\\"The question of waiver, however, is largely one of intent. Hence acts done in affirmance of the contract can amount to a waiver of the fraud only where they are done with 'full knowledge of the fraud and of all. material facts, and with the intention, clearly manifested, of abiding by the contract and waiving all right to recover for the deception. Acts which, altho\\u00fagh in affirmance of the contract, do not indicate any intention to waive the fraud, cannot be held to operate as a waiver.\\\" 20 Cyc. p. 93.\\nThe statement submitted to this court does not show that the additional stock was actually issued to Bender; but for the purposes of this opinion we will assume that it was issued and delivered. When the stock was donated by the three stockholders, it was for the purpose of relieving the financial condition of the company, and shows no purpose to compensate Bender for his damages. That purpose did not exist, either on the part of the donors, or on the part of the corporation, or on the part of Bender. The resolution which was offered in the stockholders' meeting had reference to the disposition of the stock; that is, that it should be sold at hot less than 50 cents on the dollar, and the proceeds applied, as stated in the resolution,, to the purposes of the corporation. The amendment which was offered, and which Bender either offered or seconded, had reference also to the disposition of the stock; that is, that an amount of it equal to that which was held by certain of the stockholders should be given to them, in order to make their stock equal to that of other stockholders. In making the donation, appellants had no purpose, as we have before said, to repair Bender's loss; neither had the corporation in view anything with reference to Bender's right for damages, and Bender was without any intention to waive his claim for damages. How can it be said, then, that by his acceptance of the stock from the corporation he waived a claim for damages against individuals? Upon what principle can an es-toppel be invoked in favor of appellants, when their action had no reference to their transaction with Bender, or against the latter, who manifested no purpose of surrendering any right that he had against appellants. We are unable to see in the facts stated by the Court of Civil Appeals wherein Bender in any way evinced a purpose to surrender his claim for damages against appellants and accept the stock from the corporation.\\nTo the second question we answer that the faots stated by the court do not raise any issue as to Bender's waiver of his right of action for damages against appellants. Therefore we see no reason why the court should have submitted such an issue. However, it may be that circumstances existed, which were in testimony before the jury and not certified, that would have justified a jury in coming to the conclusion that Bender's real purpose of making this transaction was to save himself from the damages which had accrued to him through the fraud of the appellants, and that he intended thereby to relinquish his claim against said appellants ; and, if there be any testimony which would justify such conclusion, then the issue should have been submitted to the jury.\"}"
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+"{\"id\": \"8281260\", \"name\": \"WILLIAMS v. STATE\", \"name_abbreviation\": \"Williams v. State\", \"decision_date\": \"1911-11-01\", \"docket_number\": \"\", \"first_page\": \"447\", \"last_page\": \"449\", \"citations\": \"140 S.W. 447\", \"volume\": \"140\", \"reporter\": \"South Western Reporter\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T23:42:48.879824+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WILLIAMS v. STATE.\", \"head_matter\": \"WILLIAMS v. STATE.\\n(Court of Criminal Appeals of Texas.\\nNov. 1, 1911.)\\n1. Criminal Law (\\u00a7 448 ) \\u2014 Evidence\\u2014Opinion Evidence.\\nEvidence in a prosecution for theft of clothing, identifying the pants, returned to the store by the sheriff, by comparing the cost marks and stock numbers on the pants with those on the coats, and to the effect that the pants matched the coats, was not objectionable as opinion evidence.\\n[Ed. Note. \\u2014 Eor other cases, see Criminal Law, Cent. Dig. \\u00a7\\u00a7 1035-1051; Dec. Dig. \\u00a7 448. ]\\n2. Cbiminal Law (\\u00a7 398 ) \\u2014 Evidence\\u2014Secondary Evidence.\\nThe evidence was not objectionable as secondary evidence.\\n[Ed. Note. \\u2014 Por other cases, see Criminal Law, Cent. Dig. \\u00a7\\u00a7 879-886; Dec. Dig. \\u00a7 398. ]\\n3. Criminal Law (\\u00a7 459 ) \\u2014 Evidence\\u2014Opinion Evidence.\\nA witness who was asked in a theft prosecution whether any one stayed at her house the night before the theft could testify whether the grip carried by one of the parties looked like the grip showed to witness which belonged to accused.\\nTEd. Note. \\u2014 Por other cases, see Criminal Law, Cent. Dig. \\u00a7\\u00a7 1048-1050; Dec. Dig. \\u00a7 459. ]\\n4. Larceny (\\u00a7 72 ) \\u2014 Instructions\\u2014Misleading Instructions.\\nAn instruction in a prosecution for theft that by the \\u201cvalue of property\\u201d is meant the market value of the property at the time and place of the taking was not misleading, and properly defined the market value of the property as being at the place where stolen, though such a charge was not necessary; the term \\u201cmarket value\\u201d being in general use, and easily understood.\\n[Ed. Note. \\u2014 For other cases, see Larceny, Cent. Dig. \\u00a7 195; Dec. Dig. \\u00a7 72. ]\\n5. Criminal Law (\\u00a7 956 ) \\u2014 New Trial \\u2014 Swearing oe Jurors.\\nEvidence on motion for a new trial held to sustain the court\\u2019s finding that a certain juror was sworn and examined on his voir dire.\\n[Ed. Note. \\u2014 Por other cases, see Criminal Law, Dec. Dig. \\u00a7 956. ]\\n6. Larceny (\\u00a7 55 ) \\u2014 Sufficiency of Evidence.\\nEvidence held to sustain a conviction for theft.\\n[Ed. Note. \\u2014 Por other cases, see Larceny, Cent. Dig. \\u00a7\\u00a7 152-169; Dec. Dig. \\u00a7 55. ]\\nAppeal from District Court, Denton County; Clem B. Potter, Judge.\\nJohn Williams was convicted of theft, and he appeals.\\nAffirmed.\\nChas. Mays, County Atty., H. R. Wilson, Asst. County Atty., and C. E. Lane, Asst. Atty. Gen., for the State.\\nP or other eases .see same topic and section .NUMBER in Dee. Digr& Am. Dig. Key No. Series & Rep\\u2019r Indexes\\nFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep\\u2019r Indexes\", \"word_count\": \"1848\", \"char_count\": \"10323\", \"text\": \"DAVIDSON, P. J.\\nAppellant was convicted of theft of property over the value of $50; his punishment being assessed at four years and six months in the penitentiary.\\nThe evidence, in a brief way, showed that appellant and his companion entered the store of the alleged owner, took quite a lot of clothing, and went away, and were captured after a short time at the depot, where they were waiting for an incoming train.\\nWhile the state's witnesses Wilson and Roark were testifying, they were permitted to identify the pants returned to the store by the sheriff by comparing the cost marks and stock numbers on the pants with those on the coats, and that said pants matched said coats. It was urged that this testimony was inadmissible, because it was but the opinion of the witness and secondary evidence, and that their objections should have been sustained as to the cost marks and stock numbers, and that the pants and coats should have been introduced in evidence before the jury so that the jury could determine the identity of the pants. We are of opinion there is no merit in any of these contentions. This was not opinion evidence in the proper legal acceptation, nor was it secondary evidence. In this connection it might be well to state that the pants taken by appellant and his associate were taken from suits of clothes in the store of the alleged owner. There were several pairs of pants taken. The appellant and his associate had a grip with them, and they walked out of the store and went away. Investigation was made within an hour or less time. These parties were traced to the depot, and the grip found and brought back to the store. The pants found in the grip or suit ease had the same marks as the record shows, same cost marks and stock numbers tl^it were on the coats that made up the suits. This was a competent way to identify, and it was not necessary to introduce the pants and the coats before the jury to show them that the cost marks and stock numbers on the pants corresponded with those on the coat.\\nAnother bill of exceptions was reserved to a question asked Charlotte Mattox as follows: \\\"Did any parties, a couple of darkies, stay at your house that night [meaning th<\\u00bb night prior to the theft early the next morning]?\\\" This was objected to as well as the answer thereto. Objection was also urged to this question: \\\"How does this compare [showing grip to the witness] ?\\\" Objection to this was that the witness should have first been required to describe the grip. This bill is rather defective; and, so far as that matter is concerned, the witness may have thoroughly described the grip beforehand, but we take it there is no merit in the objection anyway. The witness could answer the question as to comparison, if she did in fact answer it, as to whether it did look like the one the parties had or did not look like it.\\nThere are criticisms of some sections of the charge set out in the motion for new trial, but these, we think, are without merit. Among other criticisms the fifth paragraph of the charge is criticised. This charge is as follows: \\\"By the 'value of property' is meant the market value of the property at Denton, Tex., at the time of the taking.\\\" The criticism is: \\\"Because he therein defines a common phrase 'value of property' which is plain English, and was well understood by the jury and laymen generally, and needed no definition, in the terms of a legal phrase, 'market value,' without defining said legal phrase, which was calculated to, and doubt less did, confuse the minds of the jury, and misled them into rendering a verdict not supported by the evidence, and further because said common phrase so defined in a legal phrase does not appear anywhere else in said charge or in the indictment upon which the prosecution is based.\\\" Another criticism in this connection is that the court erred, after having given the above charge, in not defining the term \\\"market value,\\\" and in that connection asked this requested instruction: \\\"You are instructed that by the 'market value' is meant the price for which the property alleged to have been stolen could have been bought or sold for, in like quantities to the amount stolen, if any was stolen, on the market at Denton, Tex.\\\" This charge of the court and the refusal to give the requested instructions could not have misled the jury, and, in fact, we are of opinion that the court's charge is correct. \\\"Market value\\\" of the property was properly stated to be at Denton, Tex., where the property was stolen and at the time of the taking. It was not necessary under the circumstances of this case to define the term \\\"value of the property\\\" or \\\"market value.\\\" The term \\\"market value\\\" is usually easily understood and readily' comprehended. It is an expression in the commercial world used very generally and among all of our people, and needs no definition.\\nThere is a question suggested in the motion for new trial, on which evidence was introduced pro and con, that the juror Har\\u00e9n, who served on the trial, was not sworn or examined on his voir dire. On the trial of the motion the record shows that Gillespie and Baker testified that the juror was talking to other parties in a different part of the courtroom at the time of the impaneling of the jury, and was not sworn with the other jurors, and was not afterwards sworn. The above was Baker's testimony. Gillespie did not' seem to be so certain about it. He said, if he was sworn at any time, he did not know it, but thought he was not sworn. Young testified that he was constable, and saw the juror Har\\u00e9n when he came into the courtroom, when he was sworn as a juror, and when the court called his name, and asked him regarding his qualifications, and that the juror was sworn as a talesman by the court. The court approved this statement of facts on the motion with the statement that while he, as judge, was drawing the jury, some one called his attention to the fact that some by-standers were claiming that one of the jurors was not sworn as to his qualifications, and was pointed out to the judge. The judge said he knew he had been sworn, and did not swear, him again; that he believed this to be the juror Har\\u00e9n. While it may be doubted whether this evidence is in such condition that it may be considered on account of the condition of the record, it is found in the record in connection with the statement of facts, and is mentioned to show the contention as presented to the trial court and reflected in the record before this court. It was an issue before the court whether the juror was sworn or not. However, in any event, we think there is no merit in the question as it is presented by the record, and the trial court did not err in overruling the motion for new trial.\\nIt is contended that the evidence is not sufficient. The facts show that the defendant and his associate came to the town of Denton and spent the night. Next morning very early they walked into the store with the clerk who opened it, and, while one of them engaged him in conversation in one part of the store with reference to buying some underwear, the other negro went to the clothing dep'artment and took out the several pairs of pants mentioned and shown to have been taken. Within an hour or less time they were arrested at the depot where they were waiting for the incoming train, which was due in about 30 minutes. The grip they had with them was secured at the depot, and all these pants taken out and fully identified. Their value from any standpoint shown by the evidence was in excess of $50. Appellant undertook to make no excuse for having the goods, and, they being fully identified as the property of the alleged owner, we do not concur with appellant in his contention-that the evidence is insufficient. We think it is ample.\\nThe judgment will therefore be affirmed.\"}"
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+"{\"id\": \"8312503\", \"name\": \"Eric R. WISE, Appellant, v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Wise v. State\", \"decision_date\": \"2007-01-18\", \"docket_number\": \"Nos. 07-06-0084-CR, 07-06-0085-CR\", \"first_page\": \"548\", \"last_page\": \"559\", \"citations\": \"223 S.W.3d 548\", \"volume\": \"223\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T23:07:40.796996+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.\", \"parties\": \"Eric R. WISE, Appellant, v. The STATE of Texas, Appellee.\", \"head_matter\": \"Eric R. WISE, Appellant, v. The STATE of Texas, Appellee.\\nNos. 07-06-0084-CR, 07-06-0085-CR.\\nCourt of Appeals of Texas, Amarillo.\\nJan. 18, 2007.\\nDiscretionary Review Refused April 25, 2007.\\nJim Shaw, Lubbock, for appellant.\\nKollin Shadle, Lubbock, for the State.\\nBefore QUINN, C.J., and HANCOCK and PIRTLE, JJ.\", \"word_count\": \"4429\", \"char_count\": \"27682\", \"text\": \"OPINION\\nPATRICK A. PIRTLE, Justice.\\nBy two indictments, Appellant, Eric R. Wise, was charged with five counts of aggravated sexual assault and two counts of indecency with a child. Following the denial of his motion to suppress, Appellant entered open pleas of guilty to all counts, and the case proceeded to the punishment phase. The trial court sentenced Appellant to fifty years confinement on each of the five convictions for aggravated sexual assault and ten years confinement on each of the two convictions for indecency with a child. All seven sentences were to run concurrently. Presenting three issues to challenge all seven convictions, Appellant questions whether (1) the sentences imposed were excessive and grossly disproportionate to the facts; (2) the trial court abused its discretion in denying his motion to suppress because the affidavit presented in support of the search warrant of his home was based upon material misinformation or omissions, and there was no nexus shown between the search of his home and the alleged crimes; and (3) the prosecutor's use of \\\"leading questions\\\" prejudiced presentation of the evidence at the suppression hearing. We affirm.\\nBackground\\nThe record establishes that Appellant, a thirty-seven year old male from Cedar Rapids, Iowa, had been communicating over the Internet for almost a year with KMB, a fourteen year old female from Kenosha, Wisconsin. According to KMB, Appellant knew she was fourteen years old and represented to her that he was twenty-two years old. On August 19, 2003, Appellant traveled to Wisconsin to meet KMB at a park. They spent a few hours together, hugged and French kissed. KMB testified that Appellant pulled her onto his lap, but did not make any sexual advances. KMB told Appellant she needed to return home for dinner, but they arranged to communicate later that evening. Appellant gave KMB the telephone number and room number at the local hotel where he was staying.\\nKMB, feeling uneasy about her encounter with Appellant, disclosed the incident to her older sister, her mother, and father. As a result, Kenosha, Wisconsin Police Department was called in to investigate. A search of KMB's computer disclosed communications between her and Appellant, as well as photographs of Appellant.\\nKenosha, Wisconsin Police Officers were dispatched to Appellant's hotel room where he voluntarily consented to a search of his room and vehicle. Items discovered in the hotel room included the following:\\n\\u2022 a torn and empty condom wrapper and an empty three-pack condom box behind the night stand located between the two beds;\\n\\u2022 a prescription bottle belonging to Appellant with one-half of a Viagra tablet;\\n\\u2022 a stained towel;\\n\\u2022 Appellant's wallet which contained numerous phone numbers on a post-it type paper;\\n\\u2022 Appellant's car keys and his Iowa driver's license; and\\n\\u2022 a paper on the night stand with directions to the park where he met KMB.\\nItems found in Appellant's vehicle included:\\n\\u2022 a video camera containing a tape;\\n\\u2022 a tripod;\\n\\u2022 a backpack;\\n\\u2022 a bundle of yellow nylon tow rope;\\n\\u2022 a baggie containing various pills;\\n\\u2022 a camera bag containing a 35MM Canon Rebel camera and flash; and\\n\\u2022 a green cell phone.\\nThe evidence was turned over to the Kenosha, Wisconsin Police Department. The videotape found in the seized camera was viewed by investigators and according to a police report:\\n[t]he tape showed what appeared to be a M/W recording a F/W (age or person unknown) sleeping in the nude under the covers on a bed.... Eric and the unknown F/W then engage in sexual intercourse, where Eric looks at the camera once and the F/W appears to have no knowledge that the camera is there. Note, that the F/W also appears to be in a lethargic state.\\nWisconsin authorities arrested Appellant and charged him with child enticement and use of a computer to facilitate a child sex crime according to Wisconsin statutes. On August 20, 2003, Detective Ric Bentz, of the Kenosha, Wisconsin Police Department drafted two affidavits in support of search warrants; one for Appellant's home in Cedar Rapids, Iowa, and another to determine the origin of electronic communications and other information from a screen name believed to belong to Appellant from an America Online account. Detective Bentz then contacted Detective Melissa Henderson, of the Cedar Rapids, Iowa Police Department, for assistance in obtaining an Iowa search warrant for Appellant's home.\\nDetective Henderson presented an Application for Search Warrant which not only included her own affidavit but also incorporated the affidavit of Detective Bentz. The affidavit of Detective Bentz provides in relevant part:\\nThe defendant then asked to meet the victim and he traveled across state lines from Cedar Rapid [sic] Iowa to Kenosha WI on August 19, 2003 to meet KMB DOB 09/28/88 at Washington Bowl. The defendant meet [sic] the victim and took [sic] to the area of the swing sets and \\\"French Kissed\\\" KMB DOB 09/28/88 there. When officers arrived at The Holiday Inn Express the subject had an open box of condoms one open condom package, several pills of an unknown substance, an 8mm camera and Viagra tablets in the hotel room. The subject voluntarily consented to allow officers to search the room and his vehicle and officers recovered a camera tripod and more video tapes. One tape shows the defendant having sexual intercourse with a female subject that appears to be under the influence of alcohol or a controlled substance....\\nThe Iowa search warrant was approved by a magistrate at 4:01 p.m. on August 20, 2003, and was executed by Cedar Rapids, Iowa law enforcement officers at approximately 5:00 p.m. that same day. The warrant authorized a search of Appellant's home for evidence in connection with the crimes of child enticement and use of a computer to facilitate a child sex crime. The evidence sought was described as follows:\\nAny and all electronic devices, which are capable of analyzing, sorting, creating, displaying, converting, or transmitting electronic or magnetic impulses or data, including but not limited to: digital camera, computer, lap-top computer, central processing units, external drives or storage media, terminals or video display units, together with peripheral equipment such as keyboards, modem, acoustic couplers, automatic dialers, electronic tone generating devices, printing devices, internal storage including hard drives, computer software programs, together with instruction manuals and associated documentation; the photo designs floppy disk and CD disks for storage of electronic media, any notes papers documentation in handwriting, typed, photocopied, or printed form, or stored on computer printouts, magnetic tape, cassettes, disks, diskettes, photo-optical devices, or any other medium, that were used to communicate with the victim over the Internet. Any controlled substance as defined in Chapter 124 of the Iowa Code, including but not limited to suspicious pills.\\nFollowing execution of the Iowa search warrant of Appellant's home, officers seized a computer, CDs, photographs, videotapes, magazines, and printed chat logs. In addition, a locked Brinks home safe bolted to a closet floor was discovered during the search and removed to the police station. Iowa authorities gained entry to the Brinks home safe and found, among other items, computer CDs, floppy disks, and a videotape. All evidence seized was turned over to Wisconsin authorities for analysis.\\nWisconsin authorities viewed the videotape found in the safe which revealed Appellant and a young female between ages thirteen and fifteen engaging in sexual acts. Announcements from a radio station could be heard playing in the background of the videotape. The radio station was traced to Lubbock, Texas. Other evidence seized included a photo of the young female depicted in the videotape standing in front of a shopping mall located in Lubbock. The photograph and videotape were forwarded to the Lubbock Police Department. The girl in the photograph was wearing a high school letter jacket that was traced to a local high school. The young girl was then identified through the school's records as ACT, a female born on March 5,1989.\\nIn October 2003, ACT's parents were contacted by the Lubbock Police Department to inform them about an aggravated sexual assault investigation involving ACT. On October 2, 2003, ACT gave a written statement to a detective averring she first began communicating by computer with Appellant during the summer of 2002. According to her statement, in December 2002, Appellant expressed his desire to travel to Lubbock to meet her. On January 16, 2003, he sent her an e-mail in which he indicated he was leaving for Lubbock and expected to arrive the next day. He also expressed that \\\"[tjomorrow will be the first big day of our life together.\\\" When Appellant arrived in Lubbock, he contacted ACT; they met several times over the course of the weekend and engaged in sexual encounters. ACT was thirteen years of age at the time. ACT was aware that Appellant recorded one of their sexual escapades on videotape, which was the videotape discovered in the safe in Appellant's Iowa home. After the Wisconsin and Iowa investigations lead authorities to the Lubbock case, Appellant was charged in Lubbock County with two counts of indecency with a child and five counts of aggravated sexual assault for his involvement with ACT.\\nAnalysis\\nBy his first issue, Appellant maintains the sentences imposed were excessive and grossly disproportionate to the facts in violation of his Eighth Amendment right to be free from cruel and unusual punishment. We disagree. After the trial court pronounced sentence, defense counsel did not present any objections. Neither was a motion for new trial filed complaining of the sentence. Appellant did, however, make a bill of exception to offer examples of sentences for sexual assaults in other jurisdictions. But the bill preceded conclusion of the punishment phase and pronouncement of sentence.\\nIn order to preserve a complaint for appellate review, the record must show a timely request, objection, or motion. Tex.R.App. P. 33.1(a)(1). Constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.). Consequently, Appellant preserved nothing for review and issue one is resolved against Appellant.\\nAppellant contends by his second issue that the trial court should have granted his motion to suppress illegally obtained evidence. Specifically, he argues (1) the affidavit in support of the search warrant of his home was based upon material misinformation and omissions and (2) no nexus was shown between the search of his Iowa home and the alleged Wisconsin crimes of child enticement and use of a computer to facilitate a child sex crime. We disagree.\\nAppellant filed a motion to suppress the evidence obtained from his home and also requested a Franks v. Delaware hearing in his motion. He alleged, among other things, that Detective Bentz's affidavit contained material misrepresentations and omissions made intentionally or with reckless disregard for the truth. Detectives Bentz and Henderson both testified at the hearing. Following presentation of the evidence, the State acknowledged discrepancies between Detective Bentz's affidavit and his testimony, but nevertheless argued that Appellant failed to meet his burden under Franks to show that Bentz intentionally and knowingly made false statements or that he made statements with reckless disregard for the truth. At the conclusion of the hearing, the trial court ruled:\\n[w]ith respect to the argument that Detective Bentz perpetrated fraud on the magistrate that issued the search warrant, I strongly disagree with that. There are statements that are conflicting for sure. There are statements that appear to be just wrong.\\nBut looking at everything from a totality of the circumstances and understanding that Detective Bentz was talking with the other officers prior to the other officers writing their reports, writing the inventories, the things that they put in writing that [defense counsel] is referring to now, taking a look at all that, I don't find that Detective Bentz intentionally misled anyone. I also don't find that \\u2014 or I do find that he did not make statements with reckless disregard as to their truth.\\nI think there was some miscommunication in this case. My opinion is that's what it amounts to.\\nEven if you throw all of that out, however, the Court finds that there's still probable cause to issue the search warrant for the reasons stated, the underlying reason for the issuance of the search warrant, the reason that they were going to the magistrate in the first place.\\nFollowing its reasoning, the trial court denied Appellant's motion to suppress. Appellant then entered open pleas of guilty to all counts.\\nA trial court's ruling on a motion to suppress is reviewed for abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002); Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App.1999). We apply a bifurcated standard of review giving almost total deference to the trial court's determination of historical facts and reviewing de novo its application of the law to those facts. Laney v. State, 117 S.W.3d 854, 857 (Tex.Crim.App.2003). See also Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). Absent findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000); State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999). At a suppression hearing, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Wyatt v. State, 23 S.W.3d 18, 23 (Tex.Crim.App.2000).\\nUnder Franks v. Delaware, a defendant bears the burden of showing by a preponderance of the evidence at a suppression hearing that an affidavit contains a false statement made either knowingly and intentionally or with reckless disregard for the truth. 438 U.S. 154, 156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). If a defendant makes an offer of proof in support of the allegations and demonstrates that if the false material of the affidavit is excised and the abridged affidavit is insufficient to support probable cause, the warrant must be voided and the fruits of the search \\\"excluded to the same extent as if probable cause was lacking on the face of the affidavit.\\\" Id. See also Hinojosa v. State, 4 S.W.3d 240, 246-47 (Tex.Crim.App.1999). The Supreme Court declined to extend the rule of exclusion to instances where police are merely negligent in collecting facts. Franks, 438 U.S. at 154, 98 S.Ct. 2674. See also Dancy v. State, 728 S.W.2d 772, 783 (Tex.Crim.App.1987), cert. denied, 484 U.S. 975, 108 S.Ct. 485, 98 L.Ed.2d 484 (1987) (providing that a mis statement in an affidavit that is the result of simple negligence or inadvertence will not invalidate a warrant). Additionally, at a Franks hearing, the trial judge is owed great deference as the sole fact-finder and judge of the witnesses' credibility. Janecka v. State, 937 S.W.2d 456, 462 (Tex.Crim.App.1996). The trial court's ruling will be overruled only if it is outside the bounds of reasonable disagreement. Id. it d d >- i-e \\u2022f\\nGreat deference should be given to a magistrate's determination of probable cause. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Swearingen v. State, 143 S.W.3d 808, 810-11 (Tex.Crim.App.2004). Warrants should not thereafter be invalidated through \\\"hy-pertechnieal\\\" interpretation of their supporting affidavits. Gates, 462 U.S. at 236, 103 S.Ct. 2317. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all r_ is' ); - d i- !, y 1, 11 the circumstances set forth in the affidavit, including the \\\"veracity\\\" and \\\"basis of knowledge\\\" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Gates, 462 U.S. at 238, 103 S.Ct. 2317. The duty of a reviewing court is simply to determine whether, considering the totality of the circumstances, the magistrate had a substantial basis for concluding that probable cause existed to support the issuance of the warrant when viewing the affidavit, Id. at 238-39,103 S.Ct. 2317.\\nAppellant argues the magistrate in Iowa was mislead into issuing a search warrant based upon the following material misinformation and or omissions contained in Detective Bentz's affidavit:\\nBentz's Affidavit\\n1. \\\"The [Appellant] meet (sic) the victim and took [her] to the area of the swing sets and 'French Kissed' KMB DOB 9/28/88 there.\\\" d d\\n2. \\\"[T]he subject had an open box of condoms one open condom package .\\\" s\\n3. \\\"[T]he subject had . Viagra tablets in the hotel room.\\\"\\n4. \\\"[T]he subject had . several pills of an unknown substance . in the hotel room.\\\" n \\\"\\n5. \\\"[T]he subject had . an 8mm camera . in the hotel room.\\\" .\\n6. \\\"The subject voluntarily consented to allow officers to search the room and his vehicle and officers recovered a camera tripod and more video tapes.\\\" v\\n7. \\\"One tape shows the [Appellant] having sexual intercourse with a female subject that appears to be under the influence of alcohol or a controlled substance.\\\"\\nAlleged Misinformation or Omission\\n1. KMB was accompanied to the park by a friend.\\n2. A box of condoms was found behind a night stand between two beds in the hotel room. Nothing connected Appellant to the condoms and there was no way to determine whether Appellant had even touched them.\\n3. There was one-half of a Viagra tablet found in a prescription bottle belonging to the Appellant. The prescription bottle was found in Appellant's vehicle, not the hotel room.\\n4. The pills were not illegal, nor were they a controlled substance. The pills were found in Appellant's vehicle, not the hotel room.\\n5. The 8mm camera was found in Appellant's vehicle.\\n6. Only one videotape was recovered and it was recovered from the 8mm camera.\\n7. The affidavit fails to state that the female appeared to be an adult.\\nThe State acknowledges that Detective Bentz's affidavit contained mistakes and omissions, but explains they were not made intentionally nor with reckless disregard for the truth. At the suppression hearing, Bentz clarified discrepancies regarding the condom box and open package, the 8 millimeter camera, and Viagra prescription by explaining that he relied on verbal information from patrol officers and detectives to draft his affidavit. He did not yet have written reports to reference and needed to act immediately to prevent destruction of any electronic evidence. He did not mention that the female in the videotape found in the 8 millimeter camera appeared to be an adult because he was not positive of her age. The \\\"several pills of an unknown substance\\\" mentioned in the affidavit were determined to be over-the-counter allergy pills after the affidavit was drafted. During redirect examination, Detective Bentz denied that his affidavit contained either false statements or statements made with reckless disregard for the truth.\\nDeferring to the trial court's conclusion that Detective Bentz's affidavit did not contain either false statements or statements with reckless disregard for the truth, we cannot conclude the trial court abused its discretion. Accordingly, we find against Appellant on his contention that the Iowa magistrate was mislead into issuing the search warrant based upon any misstatements of fact.\\nThe Texas Court of Criminal Appeals has not yet determined whether a Franks analysis applies to omissions as well as false statements. See Massey v. State, 933 S.W.2d 141, 146 (Tex.Crim.App.1996). However, in Renteria v. State, 206 S.W.3d 689, 704 (Tex.Crim.App.2006), the Court assumed application of Franks to omissions and concluded that even if information omitted from an affidavit in support of a search warrant had been included, sufficient probable cause existed to issue the search warrant.\\nAs to omissions from the affidavit, we also conclude Appellant did not establish that certain facts were omitted intentionally or with reckless disregard for their truth. See Massey, 933 S.W.2d at 146. Therefore, even assuming that Franks applies to the alleged omissions, we believe the Iowa magistrate would have had sufficient probable cause to issue the search warrant even if the omissions had been included in Detective Henderson's affidavit. The search warrant affidavit would still have averred that Appellant had been communicating over the Internet and via electronic mail, as well as telephone conversations, with KMB, a minor, with the intent of having a sexual relationship with KMB. Again deferring to the trial court's conclusion, we cannot say the trial court abused its discretion in finding that the Iowa magistrate would have had sufficient probable cause to issue the search warrant.\\nThe second argument advanced by Appellant in his suppression issue is the lack of nexus between the search of his home in Iowa and the charged offenses in Wisconsin of child enticement and use of a computer to facilitate a child sex crime. He urges that the search of his home resulted in a \\\"fishing expedition.\\\"\\nThe basic purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasion of governmental officials. Berger v. New York, 388 U.S. 41, 53, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). The requirement that a search warrant be specific prohibits general searches and prevents the vesting of complete discretion in the officer who executes the warrant. Id. at 55-56, 87 S.Ct. 1873. \\\"Mere evidence,\\\" as distinguished from fruits or in-strumentalities of a crime, may be seized, provided there is a nexus between the items seized and the crimes under investigation. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). However, nexus between items to be seized and criminal behavior is automatically provided in the case of fruits or instrumentalities. Id.\\nIn the instant case, most of the items enumerated in the search warrant, i.e., camera, computers, and items related thereto, constituted fruits or instrumentalities of the charged offenses and nexus was automatically provided. Appellant's argument that nexus was not established between the search of his home and the charged offenses is misplaced. Both arguments comprising Appellant's challenge to the trial court's denial of his motion to suppress are overruled.\\nBy his final issue, Appellant claims prejudice in the prosecutor's use of leading questions during the motion to suppress hearing. We disagree. Rule 611(c) of the Texas Rules of Evidence does not prohibit the use of leading questions. See Wyatt, 23 S.W.3d at 28-29. It provides that leading questions should not be used during direct examination of a witness except as necessary to develop the testimony of that witness. Tex.R. Evid. 611(c). It is within the sound discretion of the trial court to permit the use of leading questions during direct examination. Wyatt, 23 S.W.3d at 28. To establish abuse of discretion, an appellant must show he was unduly prejudiced by use of leading questions. Hernandez v. State, 643 S.W.2d 397, 400 (Tex.Crim.App.1982), cert. denied, 462 U.S. 1144, 103 S.Ct. 3128, 77 L.Ed.2d 1379 (1983).\\nAppellant recognizes that the use of leading questions seldom results in reversible error. Uhl v. State, 479 S.W.2d 55, 57 (Tex.Crim.App.1972). However, relying on State v. Hosey, 318 N.C. 330, 348 S.E.2d 805 (1986), he argues that when leading questions result in testimony from the prosecutor rather than the witness, reversible error occurs. We are bound to follow the law as it is pronounced by the Texas Court of Criminal Appeals and see no compelling reason to apply the rationale of Hosey in this case. See Swilley v. McCain, 374 S.W.2d 871, 875 (Tex.1964).\\nAccording to Appellant, approximately 122 leading questions were asked of Detective Bentz during direct examination and 121 leading questions during redirect examination. He argues the questions suggested the answers. Appellant interjected, and the trial court sustained, five leading question objections early during the suppression hearing. Following the fifth objection, the trial court admonished the prosecutor it wanted to \\\"hear the witness's testimony.\\\" No further leading question objections were made after the prosecutor was admonished despite Appellant's calculations that several hundred leading questions were asked. By failing to object and obtain an adverse ruling each time the prosecutor asked a leading question, Appellant has not preserved this issue for review. See Tex.R.App. P. 33.1(a); Garner v. State, 939 S.W.2d 802, 807 (Tex.App.-Fort Worth 1997, pet. ref'd). See generally Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App.1984) (holding that defense counsel must object each time allegedly inadmissible evidence is offered). Issue three is overruled.\\nHaving overruled Appellant s issues, the trial court's judgments are affirmed.\\n. Appellant was also convicted in Federal court of producing child pornography, enticement of a child, and traveling across State lines with intent to engage in a sexual act with a juvenile, which convictions were affirmed in United States v. Wise, 447 F.3d 440 (5th Cir.2006). He was sentenced to 168 months confinement and three years of supervised release. Id. at 445.\\n. A person is guilty of child enticement if with intent to commit certain enumerated acts, he \\\"causes or attempts to cause any child who has not attained the age of 18 years to go into any vehicle, building, room, or secluded place.\\\" A person is guilty of use of a computer to facilitate a child sex crime if that person \\\"uses a computerized communication system to communicate with an individual who the actor believes or has reason to believe has not attained the age of 16 years with intent to have sexual contact or sexual intercourse with the individual in violation of s. 948.02(1) or (2) is guilty of a Class C felony.\\\"\\n. In support of his argument, Appellant relies on Solem v. Helm, 463 U.S. 277, 290 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). It is, however, no longer controlling following the decision in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), that \\\"Solem was simply wrong; the Eighth Amendment contains no proportionality guarantee.\\\"\\n. Franks held that where a defendant makes a substantial preliminary showing that a false statement in a warrant affidavit was made knowingly and intentionally, or with reckless disregard for the truth, and if that statement was necessary to a finding of probable cause, the Fourth Amendment requires a hearing at defendant's request. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).\\n. Effective June 28, 2006, the trial court shall make findings of fact when requested by the losing party. See State v. Cullen, 195 S.W.3d 696, 699 (Tex.Crim.App.2006). If no findings of fact are requested, State v. Ross, 32 S.W.3d 853 (Tex.Crim.App.2000) continues to control. Id.\"}"
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+"{\"id\": \"8421712\", \"name\": \"TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Johnny Ali LaROUSSI, Appellee\", \"name_abbreviation\": \"Texas Departmen of Public Safety v. LaRoussi\", \"decision_date\": \"2006-04-12\", \"docket_number\": \"No. 12-05-00100-CV\", \"first_page\": \"637\", \"last_page\": \"641\", \"citations\": \"192 S.W.3d 637\", \"volume\": \"192\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T20:35:34.487519+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel consisted of WORTHEN, C. J., GRIFFITH, J., and DeVASTO, J.\", \"parties\": \"TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Johnny Ali LaROUSSI, Appellee.\", \"head_matter\": \"TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Johnny Ali LaROUSSI, Appellee.\\nNo. 12-05-00100-CV.\\nCourt of Appeals of Texas, Tyler.\\nApril 12, 2006.\\nJ. Frank Davis, Expunction Atty., Austin, for appellant.\\nThomas L. Hooton, Dallas, for appellee.\\nPanel consisted of WORTHEN, C. J., GRIFFITH, J., and DeVASTO, J.\", \"word_count\": \"1276\", \"char_count\": \"7957\", \"text\": \"OPINION\\nJAMES T. WORTHEN, Chief Justice.\\nThe Texas Department of Public Safety (DPS) appeals an order granting expunction of an administrative license suspension to Johnny Ali LaRoussi. In three issues, DPS contends the trial court had no authority to enter the expunction order. We reverse the trial court's order of ex-punction and render judgment reinstating the administrative license suspension.\\nBackground\\nLaRoussi was indicted for driving while intoxicated (DWI) after being arrested in Kaufman County on November 4, 2003. Later, the Kaufman County district attorney dismissed the indictment before LaR-oussi was brought to trial. On August 24, 2004, LaRoussi filed a \\\"Request For Ex-punction\\\" with the following statement:\\n[Defendant is entitled to an expunction of all records and files relating to said alleged offense of DWI under Article 55.01(a)(1)(A) of the Texas Code of Criminal Procedure because Defendant was not convicted of the alleged offense.\\nFollowing a hearing, the trial court entered an order on October 1, 2004 finding that LaRoussi was \\\"entitled to expunction\\\" with respect to the DWI:\\n[T]he Court further finds that the circumstances surrounding the dismissal of said offense or the quashing of the indictment or information indicate that there was an absence of probable cause at the time of such dismissal due to false information.\\nThe tidal court then ordered various governmental entities, including DPS, to \\\"obliterate all public references\\\" to \\\"the arrest and/or alleged offense.\\\" The record before us shows nothing occurring from October 1 until December 21, 2004 when the following order was signed and entered by the trial court:\\nCAUSE NO. 660\\u00cd8CC\\nSTATE OF TEXAS\\nv.\\nJOHNNY ALI LAROUSSI IN THE COUNTY COURT AT LAW\\nKAUFMAN COUNTY, TEXAS\\nORDER\\nThe Court, having determined that the DWI Case was filed by mistake on false information of driving while intoxicated at a Pre-Trial hearing before the court on-, in Cause No. 66048CC, and having further determined that this charge was the basis of the ALR suspension which was effective from 02-11-04 to 02-09-06.\\nIT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT THE DEPARTMENT OF PUBLIC SAFETY SHALL IMMEDIATELY RESCIND THE DRIVER'S LICENSE SUSPENSION FROM DEFENDANT Johnny Ali Laroussi, AND SHALL REMOVE ANY REFERENCE TO THE SUSPENSION FROM DEFENDANT Johnny Ali Laroussi's DRIVING RECORD. [See Transp. Code \\u00a7 524.015(b); \\u00a7 724.048(c)].\\nIT IS FURTHER ORDERED THAT IF THE DRIVER'S LICENSE ALR SUSPENSION IS NOT YET IMPOSED, THE DEPARTMENT OF PUBLIC SAFETY SHALL NOT SUSPEND THE DRIVER'S LICENSE OF DEFENDANT Johnny Ali Laroussi.\\nSIGNED and ENTERED this 21st Day of December, 2004 /s/_\\n(JUDGE PRESIDING)\\nCounty Court at Law Kaufman County, Texas\\nDPS filed a motion for new trial attempting to overturn the trial court's December 21 order expunging the administrative license suspension of LaRoussi. The trial court denied the motion, and DPS timely filed this appeal.\\nTrial Court's Plenary Power\\nIn its second issue, DPS contends that the trial court abused its discretion by entering the December 21, 2004 order expunging the administrative license suspension because the court's plenary power ended on October 81, 2004. Citing no supporting authority, LaRoussi responds that courts in Texas \\\"routinely enter orders of expunction long after thirty days have elapsed.\\\"\\nApplicable Law\\nA person arrested for either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if the indictment was dismissed or quashed and the court finds that the indictment or information was dismissed or quashed because of mistake, false information, or other similar reason indicating absence of probable cause that the person committed the offense. Tex.Code Crim. PROC. Ann. art. 55.01(a)(2)(A)(ii) (Vernon Supp.2005). The right to expunction of criminal records is a creature of statute, and the Texas Code of Criminal Procedure governs the process. Tex. Dep't of Public Safety v. Moore, 51 S.W.3d 355, 357 (Tex.App.-Tyler 2001, no pet.). However, ex-punction of records is a civil claim, not a criminal case. See State v. Henson, 573 S.W.2d 548, 549 (Tex.Crim.App.1978).\\nAn administrative license suspension entered by DPS following an indictment for a DWI may be expunged following an acquittal of the DWI charges. See Tex. Teansp. Code Ann. \\u00a7 524.015, 724.048 (Vernon 1999). The right to ex-punction is statutory; courts have no equitable power to expunge records. See Ex parte Harrison, 52 S.W.3d 901, 902 (Tex.App.-Eastland 2001, no pet.). A case attempting expunction of an administrative license suspension is a separate civil matter beyond expunging a DWI indictment and arrest. See Tex.Code CRiM. Peoc. Ann. art. 55.06 (Vernon Supp.2005).\\nA trial court has plenary power over its judgment until it becomes final. Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex.1993). A final judgment is one that finally disposes of all remaining parties and claims based on the record in the case. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex.2001). A trial court retains plenary power for thirty days after signing a final judgment absent the filing of a motion for new trial or other posttrial motion challenging the judgment. Tex.R. Civ. P. 329b(d), (e), (g). Orders issued after the expiration of a trial court's plenary power are void for lack of subject matter jurisdiction. See In re Barrett, 149 S.W.3d 275, 278 (Tex.App.-Tyler 2004, orig. proceeding); see also Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990) (judgment is void when a trial court had no authority or capacity to act as a court). A trial court abuses its discretion when it attempts to exercise a power that it does not legally possess. Stone v. Griffin Communications and Sec. Sys., Inc., 53 S.W.3d 687, 695 (Tex.App.-Tyler 2001, no pet.). A trial court may be reversed for abusing its discretion only when the court of appeals determines the trial court acted in an unreasonable or arbitrary manner. Beaumont Bank, N.A v. Butter, 806 S.W.2d 223, 226 (Tex.1991). Stated somewhat differently, abuse of discretion occurs when a trial court acts without reference to any guiding rules and principles. Id. A clear failure by the trial court to analyze or properly apply the law correctly constitutes an abuse of discretion. In re Moore, 153 S.W.3d 527, 532 (Tex.App.-Tyler 2004, orig. proceeding) [mand. denied]; see also Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).\\nAnalysis\\nThe only civil claim before the trial court when it entered its October 1 order expunging records was the DWI arrest and indictment. The order of that date clearly expunged only records dealing with the DWI arrest and indictment. No further pleadings or motions were filed with the trial court within the next thirty days. On October 31, 2004, the trial court lost plenary power to issue any further orders of expunction in this case because it had already dealt with the only pleaded claim for expunction. The attempt to expunge the administrative license suspension was a separate claim that was not brought before the trial court before October 31, 2004. See Tex.Code Grim. PROC. Ann. art. 55.06. We hold that the trial court lost all plenary power in the existing civil case on October 31 and therefore its December 21 order was void. We sustain DPS's second issue.\\nDisposition\\nBecause DPS's second issue is disposi-tive, we need not consider its remaining issues. See Tex.R.App. P. 47.1. We reverse the trial court's order of December 21, 2004 and render judgment reinstating DPS's administrative suspension of LaR-oussi's license from February 11, 2004 to February 9, 2006.\"}"
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+"{\"id\": \"8463201\", \"name\": \"SEELIN MEDICAL, INC., Appellant, v. INVACARE CORPORATION, Appellee\", \"name_abbreviation\": \"Seelin Medical, Inc. v. Invacare Corp.\", \"decision_date\": \"2006-08-31\", \"docket_number\": \"No. 11-05-00116-CV\", \"first_page\": \"867\", \"last_page\": \"873\", \"citations\": \"203 S.W.3d 867\", \"volume\": \"203\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T23:19:27.136861+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel consists of: WRIGHT, C.J., and McCALL, J., and STRANGE, J.\", \"parties\": \"SEELIN MEDICAL, INC., Appellant, v. INVACARE CORPORATION, Appellee.\", \"head_matter\": \"SEELIN MEDICAL, INC., Appellant, v. INVACARE CORPORATION, Appellee.\\nNo. 11-05-00116-CV.\\nCourt of Appeals of Texas, Eastland.\\nAug. 31, 2006.\\nOpinion Overruling Rehearing Sept. 28, 2006.\\nNathan M. Rymer, Debra I. Mayfield, Rymer, Moore, Jackson & Echols, P.C., Houston, for appellant.\\nSteven L. Hughes, Carl Green, Mounce, Green, Myers, Safi & Galatzan, El Paso, for appellee.\\nPanel consists of: WRIGHT, C.J., and McCALL, J., and STRANGE, J.\", \"word_count\": \"2801\", \"char_count\": \"17946\", \"text\": \"OPINION\\nRICK STRANGE, Justice.\\nThis is an indemnity dispute between codefendants in a products liability action. Seelin Medical, Inc. filed a cross-claim against Invacare Corporation contending that Seelin had been sued in a products liability action, that it was an innocent seller, and that it was entitled to indemnity from Invacare, the product's manufacturer, pursuant to Chapter 82 of the Civil Practice and Remedies Code. The trial court granted Invacare's motion for summary judgment finding that it had no duty to indemnify Seelin. We affirm in part and reverse and remand in part.\\nBackground, Facts\\nReynaldo Baeza sued Seelin, Invacare, and Graham-Field, Inc. alleging strict products liability and negligence actions for injuries he sustained when his walker collapsed. Baeza contended that the walker and a platform attached to the walker were unreasonably defective. In-vacare manufactured and distributed the walker. Graham-Field manufactured and distributed the platform. Seelin sold the walker and attachment to Baeza.\\nInvacare filed a no-evidence motion for summary judgment against Baeza. During the pendency of that motion, Seelin filed a cross-claim against Invacare asserting a statutory right of indemnity pursuant to Section 82.002. Invacare's no-evidence motion was granted without prejudice as to Seelin's cross-claim. Baeza then filed a third amended petition. This petition asserted no claim against Invacare, nor did it allege that the walker was defective. Instead, Baeza alleged only that the platform assembly was defective. He asserted claims against Graham-Field as the manufacturer and Seelin as the seller.\\nInvacare challenged Seelin's cross-claim with both a traditional and a no-evidence motion for summary judgment. The trial court held a hearing and subsequently entered an order granting Invacare's motion for summary judgment without specifying which motion was being granted.\\nIssues\\nSeelin challenges the trial court's ruling with two issues. In the first issue, Seelin assumes that the trial court granted Inva-care's traditional motion for summary judgment. In the second issue, Seelin assumes that the trial court granted Inva-care's no-evidence motion. Seelin asserts in each issue that the trial court's ruling was in error.\\nStandard of Review\\nTraditional motions are governed by Tex.R. Civ. P. 166a(c) which provides that a summary judgment shall be rendered if the evidence properly before the court indicates that \\\"there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.\\\" When a defendant files a traditional motion for summary judgment, it must either conclusively negate at least one of the essential elements of a plaintiffs cause of action or conclusively establish each element of an affirmative defense. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). If a defendant negates an element of a plaintiffs claim, the burden shifts to the plaintiff who must produce evidence creating a genuine issue of material fact on that disputed element. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995).\\nThe trial court must assume that all evidence favorable to the nonmovant is true and must view the evidence in the light most favorable to the nonmovant. Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 491 (Tex.1996). The trial court must indulge every reasonable inference and resolve all doubts in favor of the nonmovant. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). We review the trial court's decision as a question of law and, therefore, utilize a de novo review applying the same presumptions as are applicable to the trial court. Eslon Thermoplastics v. Dynamic Sys., Inc., 49 S.W.3d 891, 896 (Tex.App.-Austin 2001, no pet.).\\nNo-evidence motions are governed by Tex.R. Civ. P. 166a(i). The party without the burden of proof may file a no-evidence motion after an adequate time for discovery has passed. The movant asks for summary judgment on the ground that the nonmoving party lacks supporting evidence for one or more essential elements of its claim. Id. The trial court must sustain the motion unless the nonmovant produces sufficient evidence to create a genuine issue of material fact. Id.\\nA no-evidence motion for summary judgment is essentially a directed verdict granted before trial to which we apply a legal sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003). A no-evidence summary judgment will be sustained when (1) there is a complete absence of evidence of a vital fact, (2) the trial court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. King Ranch, 118 S.W.3d at 751.\\nWhat Indemnity Obligation Does Section 82.002 Impose?\\nTexas common law recognized a limited right of indemnity for innocent retailers from manufacturers. See, e.g., Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 819 (Tex.1984). This right placed an onerous burden on sellers who were required to bring a separate action against the manufacturer. Freightliner Corp. v. Ruan Leasing Co., 6 S.W.3d 726, 729 (Tex.App.-Austin 1999), aff'd sub nom., Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86 (Tex.2001). The seller was required to show that it sold the product, that the manufacturer was found liable or admitted its liability to the underlying plaintiff, and that the seller had been forced to pay damages. Humana Hosp. Corp. v. Am. Med. Sys., Inc., 785 S.W.2d 144 (Tex.1990).\\nThe legislature significantly enhanced a seller's indemnity rights when it adopted the Texas Products Liability Act in 1993. Codified as Chapter 82 of the Civil Practice and Remedies Code, this statute imposes a duty upon manufacturers to indemnify sellers in relevant part as follows:\\n(a) A manufacturer shall indemnify and hold harmless a seller against loss arising out of a products liability action, except for any loss caused by the seller's negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently liable.\\n(b) For purposes of this section, \\\"loss\\\" includes court costs and other reasonable expenses, reasonable attorney fees, and any reasonable damages.\\n(e) The duty to indemnify under this section:\\n(1) applies without regard to the manner in which the action is concluded; and\\n(2) is in addition to any duty to indemnify established by law, contract, or otherwise.\\nSection 82.002. The purpose of this section, according to the supreme court, is to require a manufacturer to indemnify an innocent seller for certain damages and litigation expenses arising out of a products liability action and to require sellers to bear the damages and expenses for the losses they cause. Gen. Motors Corp. v. Hudiburg Chevrolet, Inc., 199 S.W.3d 249, 262 (Tex., 2006); Meritor Auto., 44 S.W.3d at 88.\\nThe supreme court's application of this statute to issues arising during the pen-dency of a products liability lawsuit is not unlike the eight-corners rule used to determine an insurer's duty to defend. In both instances, extrinsic evidence may not be considered. Instead, the court has compared the allegations in a products liability claimant's pleadings with the language of Section 82.002 and has found a duty to indemnify exists if a claimant asserts an allegation against a seller that falls within the statute's scope. For example, in Fitzgerald v. Advanced Spine Fixation Systems, Inc., 996 S.W.2d 864, 867-69 (Tex.1999), the court held that pleadings joining a seller as a defendant in a products liability action were sufficient to invoke the manufacturer's duty to indemnify even though it was ultimately determined that the defendant seller did not sell the injury-causing product. See also Freeman Fin. Inv. Co. v. Toyota Motor Corp., 109 S.W.3d 29, 34 (Tex.App.-Dallas 2003, pet. denied) (manufacturer's summary judgment proof that the defendant retailer did not sell the injury-causing product did not reheve the manufacturer of its duty to indemnify because the duty was triggered by the claimant's pleading and the claimant continued to allege that the retailer was the seller and to assert a strict products liability action against it).\\nWhen the trial court considered Inva-care's motions for summary judgment against Seelin, Baeza's live pleading was his fourth amended petition. Invacare argued that, because this petition asserted no claim against it nor otherwise claimed that any product it manufactured was defective, Section 82.002 was inapplicable. Seelin responded that, because Baeza's original petition alleged that Invacare's walker was defective and because Seelin had been sued as a seller of the walker, Section 82.002 was applicable and that it was entitled to indemnity.\\nNeither party asks us to consider extrinsic evidence. Instead, both contend that the issue is resolved solely by looking at Baeza's petitions. They differ in their analysis of which petition we should consider and the effect of a subsequently amended petition. Invacare would have us hold that, if a claimant abandons a products liability claim against the manufacturer, the manufacturer's duty to indemnify is retroactively eliminated. Seelin contends that, if a products liability claimant ever asserts a claim covered by Section 82.002, then the manufacturer must indemnify the seller so long as it remains a party.\\nA Does Invacare Have Any Obligation to Seelin?\\nInvacare cites us no authority for its argument that, when Baeza abandoned his claim that Invacare's walker was defective, Invacare was retroactively relieved of any duty to indemnify Seelin. Invacare focuses instead on the lack of any complaint against it in Baeza's third and fourth amended petitions and, in essence, asks us to consider subsequent developments during the course of the litigation to determine whether Invacare ever owed Seelin a duty. The supreme court's analysis in Fitzgerald, 996 S.W.2d at 864, and Meritor Automotive, 44 S.W.3d at 86, is inconsistent with this position. Those decisions stand for the proposition that the only subsequent development which would have retroactive effect is a finding of independent conduct by the seller which caused the claimant's injury. See 44 S.W.3d at 91.\\nWhen Baeza originally filed suit, he alleged that Invacare's walker was defective. He sued Seelin as the seller and asserted products liability causes of action against it. These allegations are sufficient to trigger Invacare's duty to indemnify. To the extent the trial court found Invacare had no duty, it erred and Seelin's first and second issues are sustained.\\nB. Is Invacare's Duty To Indemnify Unlimited?\\nSeelin contends that, because Inva-care's duty to defend was triggered by Baeza's original petition, subsequent petitions are irrelevant. Seelin's argument turns on the provision in Section 82.002(e)(1) that the duty to indemnify \\\"applies without regard to the manner in which the action is concluded.\\\" Seelin contends that, in light of this language, any holding which limits a manufacturer's duty because of subsequently amended pleadings would require the court to en-graft language into the statute. Seelin misreads Section 82.002(e)(1). This provision does not make subsequent changes in the claimant's allegations irrelevant\\u2014it eliminates the common law requirement that the seller prove the manufacturer's liability to the underlying plaintiff. Under the common law, a seller's right to indemnity from the manufacturer is dependent upon a finding of liability. See Humana Hosp., 785 S.W.2d at 144. Under Section 82.002, however, indemnity is dependent solely upon the presence of a statutorily covered claim.\\nChapter 82 requires manufacturers to indemnify retailers when they are sued for selling the manufacturer's allegedly de fective product. It does not require them to indemnify retailers who are sued for selling the allegedly defective products of others. Hudiburg, 199 S.W.3d at 262. Section 82.001(2) defines a \\\"[p]roducts liability action\\\" as:\\n[A]ny action against a manufacturer or seller for recovery of damages arising out of personal injury, death, or property damage allegedly caused by a defective product whether the action is based in strict tort liability, strict products liability, negligence, misrepresentation, breach of express or implied warranty, or any other theory or combination of theories.\\nSection 82.001(4) defines a \\\"[mjanufacturer\\\" as:\\n[A] person who is a designer, formulator, constructor, rebuilder, fabricator, producer, compounder, processor, or assembler of any product or any component part thereof and who places the product or any component part thereof in the stream of commerce.\\nThese two definitions, when read together, require some nexus between the manufacturer and the allegedly defective product.\\nBaeza originally claimed that his walker and the attached platform were defective. We have previously held that these allegations triggered Invacare's duty to indemnify Seelin. But when the trial court considered Invacare's motions for summary judgment against Seelin, Baeza had abandoned his claim that the walker was defective and contended only that the platform was defective. He alleged that Graham-Field manufactured the platform and that Seelin sold it. His products liability and negligence claims against Seelin alleged only a breach of duty in connection with the platform assembly. Baeza made no claim that Invacare's walker \\u2014 or anything else manufactured by Invacare \\u2014 was defective. Finally, Seelin produced no summary judgment evidence establishing that its continued, as opposed to original, presence in Baeza's litigation was attributable in any way to Invacare.\\nSeelin's position strains the language of the statute. Seelin would require Invacare to indemnify it for claims that the platform assembly \\u2014 which no person contended In-vacare designed, formulated, constructed, rebuilt, fabricated, produced, compounded, processed, or assembled \\u2014 was defective. The plain language of the statute does not support such an interpretation. The trial court correctly found that Invacare owed no duty to indemnify Seelin for the claims in Baeza's third and fourth amended petition. Seelin's issues are overruled to the extent they challenge this ruling.\\nConclusion\\nInvacare owed Seelin a duty to indemnify it for defending claims relating to the walker. That duty ended when Baeza was no longer asserting such a claim. Even though the trial court had granted the motion for summary judgment on the claim against Invacare, Baeza had not given up on the claim until he amended his lawsuit and deleted the claim against Inva-care. He continued to be in a position to assert that claim in a motion to reconsider the ruling on the motion for summary judgment; he could have contested the ruling on the motion for summary judgment on appeal; or he could otherwise have attacked the ruling. We hold that Invaeare's duty to indemnify Seelin for defending the claims pertaining to Inva-care and the defective walker ended when Baeza amended his petition and omitted Invacare and his claims against it.\\nThe trial court's judgment is affirmed except for that part of the judgment which finds that Invacare owed no duty to indemnify Seelin for its costs in defending claims pertaining to Invacare prior to the time that Baeza amended his petition and eliminated claims against Invacare. That part of the judgment is reversed and remanded to the trial court for a determination of the amount of that indemnity.\\nOPINION ON MOTION FOR REHEARING\\nSeelin Medical, Inc. has filed a motion for rehearing asking this court to withdraw and modify our opinion and judgment dated August 31, 2006. Seelin's motion identifies no error in our opinion or judgment and is, therefore, overruled.\\nSeelin's prayer asks in the alternative that we direct the trial court to consider the costs prior to the filing of plaintiffs third amended petition as well as the costs, fees, and damages incurred by Seelin in prosecution of the indemnity obligation against Invacare. That request raises an issue not properly before us. The trial court's summary judgment held that Inva-care owed Seelin no duty. We have previously held that this was partially incorrect because Invacare did owe a duty to Seelin to indemnify it for claims relating to the walker. Because the trial court has not yet been afforded an opportunity to quantify the extent of this duty and because this requires the resolution of factual issues, it would be improper for us to grant Seelin's alternative request. The motion is, therefore, overruled.\\n. Tex. Civ. Prac. & Rem.Code Ann. \\u00a7 82.001-.008 (Vernon 2005).\\n. Graham-Field is in bankruptcy and is not a party to this appeal.\\n. For a description of the eight-comers rule, see Burlington Ins. Co. v. Texas Krishnas, Inc., 143 S.W.3d 226, 229 (Tex.App.-Eastland 2004, no pet.).\\n. Cf. American Alliance Ins. Co. v. Frito-Lay, Inc., 788 S.W.2d 152, 154 (Tex.App.-Dallas 1990, writ dism'd) (\\\"The duty to defend is not affected by facts ascertained before suit, developed in the process of litigation, or by the ultimate outcome of the suit.\\\").\\n. This holding makes it unnecessary for us to distinguish between Invacare's no-evidence and traditional motions.\"}"
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+"{\"id\": \"8939211\", \"name\": \"Lisa PARKER, Individually and on Behalf of Kristopher \\\"Cody\\\" Parker, Appellant, v. CCS/MEADOW PINES, INC., Appellee\", \"name_abbreviation\": \"Parker v. CCS/Meadow Pines, Inc.\", \"decision_date\": \"2005-06-28\", \"docket_number\": \"No. 06-04-00097-CV\", \"first_page\": \"509\", \"last_page\": \"513\", \"citations\": \"166 S.W.3d 509\", \"volume\": \"166\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T17:35:45.969081+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MORRISS, C.J., ROSS and CARTER, JJ.\", \"parties\": \"Lisa PARKER, Individually and on Behalf of Kristopher \\u201cCody\\u201d Parker, Appellant, v. CCS/MEADOW PINES, INC., Appellee.\", \"head_matter\": \"Lisa PARKER, Individually and on Behalf of Kristopher \\u201cCody\\u201d Parker, Appellant, v. CCS/MEADOW PINES, INC., Appellee.\\nNo. 06-04-00097-CV.\\nCourt of Appeals of Texas, Texarkana.\\nSubmitted April 14, 2005.\\nDecided June 28, 2005.\\nSteven L. Rushing, Longview, for appellant.\\nKenneth C. Stone, Amanda L. Hopkins, Gwinn & Roby, Dallas, for appellee.\\nBefore MORRISS, C.J., ROSS and CARTER, JJ.\", \"word_count\": \"1570\", \"char_count\": \"9766\", \"text\": \"OPINION\\nOpinion by\\nChief Justice MORRISS.\\nKristopher \\\"Cody\\\" Parker, while a patient at Meadow Pines Hospital, a private mental health hospital in Longview, allegedly suffered injuries related to restraints used on him. After suit and the passage of an appropriate time period, the defendant Hospital moved for, and received, dismissal of the lawsuit because of Parker's failure to file an expert report under Section 74.351 of the Texas Civil Practice and Remedies Code. See Tex. Crv. PRAC. & Rem.Code Ann. \\u00a7 74.351 (Vernon 2005).\\nParker's appeal asserts the trial court erred by dismissing Parker's lawsuit\\u2014 based on an apparent finding that Parker alleged only \\\"healthcare liability claims\\\"\\u2014 and also by awarding attorney's fees to the Hospital. We conclude (1) Parker's claims are \\\"healthcare liability claims\\\" as used in the statute \\u2014 so the dismissal was proper\\u2014 and (2) the attorney's fee award was proper. For that reason, we affirm the judgment of the trial court.\\nThe trial court's decision to dismiss a case under Section 74.351(b) is reviewed for abuse of discretion. Am. Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001). An abuse of discretion occurs when a trial court \\\"acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Jones v. Christus Health Ark-LaTex, 141 S.W.3d 790, 792 (Tex.App.-Texarkana 2004, no pet.). A trial court does not abuse its discretion simply because it may decide a matter within its discretion differently than an appellate court. Id. A trial court, however, has no discretion in determining what the law is or in applying the law to the facts. Id. Thus, a \\\"clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion....\\\" Id.\\nIf a plaintiffs cause of action is a healthcare liability claim, and if the plaintiff fails to file an expert report within the statutory time period, a trial court does not abuse its discretion by dismissing the case with prejudice. Id. If, however, the plaintiffs claim is not one for healthcare liability, or if the trial, court dismissed.in the erroneous belief that the plaintiff had faded to file an expert report, then the trial court abused its discretion, and the dismissal must be reversed. Id. Whether a cause of action advances a healthcare liability claim is a question of law to be reviewed de novo on appeal. Jones, 141 S.W.3d at 793.\\n(1) Parker's Claims Are \\\"Healthcare Liar bility Claims\\\" as Used in the Statute\\nSection 74.351(a) provides a healthcare liability claimant must file an expert report and curriculum vitae within 120 days after filing the claim. Tex. Civ. PraC. & Rem.Code Ann. \\u00a7 74.351(a). If a required expert report has not been served by the 120-day deadline, on proper motion by the defendant, the trial court is required to dismiss the action with prejudice and award reasonable attorney's fees and court costs incurred by the defendant, Tex. Civ. Peac. & Rem.Code Ann. \\u00a7 74.351(b). Section 74.351(a) applies only to healthcare liability claims. Jones, 141 S.W.3d at 792.\\nA healthcare liability claim is\\na cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in'injury to or death of a claimant, whether' the claimant's claim or cause of action'sounds in tort or contract.\\nTex. Civ. Prac. & Rem.Code Ann. \\u00a7 74.001(a)(13) (Vernon 2005) (emphasis added).\\nParker argues on appeal that, because the claims relate to nonmedical, administrative, ministerial, and routine care, which are within the knowledge of laypersons, expert testimony is not required. To support this argument, Parker cites three cases: Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex.1984); St. Paul Med. Ctr. v. Cecil, 842 S.W.2d 808, 812 (Tex.App.-Dallas 1992, no writ); and Golden Villa Nursing Home v. Smith, 674 S.W.2d 343, 349 (Tex.App.-Houston [14th Dist.] 1984, writ ref d n.r.e.). But Morgan, Cecil, and Smith, deal with expert testimony at trial, not pretrial expert reports required by Section 74.351(a). Therefore, we find those cases inapplicable.\\nTo determine if Parker's claims are healthcare liability claims, we must examine the underlying nature of the claims. See Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex.1994); Jones, 141 S.W.3d at 793. We are not bound by Parker's characterization of the claims. Buck v. Blum, 130 S.W.3d 285, 291 (Tex.App.-Houston [14th Dist.] 2004, no pet.). Plaintiffs cannot use artful pleading to avoid the statutory requirements when the essence of the suit is a healthcare liability claim. Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex.2004) (negligent cre-dentialling claim is healthcare liability claim). A cause of action is a healthcare liability claim if, to prove it, the claimant must establish an applicable standard of care for healthcare providers or if the act or omission complained of was \\\"an inseparable part of the rendition of medical services.\\\" Jones v. Khorsandi, 148 S.W.3d 201, 206 (Tex.App.-Eastland 2004, pet. filed); Buck, 130 S.W.3d at 291; Rubio v. Diversicare Gen. Partner, Inc., 82 S.W.3d 778 (Tex.App.-Corpus Christi 2002, pet. granted); Bush v. Green Oaks Operator, Inc., 39 S.W.3d 669, 672 (Tex.App.-Dallas 2001, no pet.); Williams v. Walker, 995 S.W.2d 740, 741 (TexApp.-Eastland 1999, no pet.).\\nParker's petition alleges that Hospital employees improperly restrained Cody, failed to have sufficient staff, failed to properly train staff, violated Cody's rights as set out in the Patient's Bill of Rights, failed to abide by the Hospital's \\\"own standards in the care and treatment\\\" of Cody, failed to exercise \\\"due care and caution\\\" as to Cody, and failed to timely and appropriately treat Cody's injuries\\u2014 all claims which are healthcare claims, because proving them would require establishment of the appropriate standards of care to be used when restraining or otherwise caring for mental patients. But Parker also alleged Hospital employees abused, neglected, or exploited Cody and then covered up or misrepresented those wrongs \\u2014 claims we will refer to as Parker's \\\"abuse\\\" claims. The abuse claims bear additional scrutiny.\\nEven in a medical setting, claims of torts which are not inseparably part of healthcare services or of \\\"safety or professional or administrative services directly related to health care\\\" are not healthcare liability claims. For example, unwanted sexual advances by a doctor produced claims that were not healthcare liability claims. See Khorsandi, 148 S.W.3d 201; see also Buck, 130 S.W.3d 285; Rubio, 82 S.W.3d 778; Bush, 39 S.W.3d 669.\\nIf employees of the Hospital abused Cody in some way unrelated to his course of care or treatment, such as by assaulting him outside of efforts to care for or to restrain him for safety purposes, then claims for such acts would not be healthcare liability claims. But we have reviewed the petition and find, even with a liberal reading of the pleading, no allegations of any act committed by anyone who had turned aside from the Hospital's mission to care for and restrain Cody during his course of care. All of Parker's claims would require reference to the standards by which mental health institutions restrain patients. See Jones, 141 S.W.3d at 794. Accordingly, the entirety of Parker's suit is properly characterized as one claiming healthcare liability.\\nBecause Parker never filed a medical expert report, the trial court, on the Hospital's motion, was required to dismiss the action with prejudice. See id.\\n(2) The Attorney's Fee Award Was Proper\\nThe trial court awarded the Hospital $9,000.00 in attorney's fees. Section 74.351(b)(1) provides that, if an expert report has not been served within the period specified, the trial court, on a proper motion, shall award attorney's fees and costs of court to the affected party. Tex. Civ. Prao. & Rem.Code Ann. \\u00a7 74.351(b)(1). We find nothing in Section 74.351(b)(1) dictating the timing of a trial court's award of attorney's fees. Parker cites no authority to support the contention that the trial court deferring a finding on the Hospital's attorney's fees was improper, nor did this Court find any authority to support Parker's argument. The trial court did not abuse its discretion by awarding attorney's fees in the manner it did.\\nWe affirm the trial court's judgment.\\n. Cody's mother, Lisa Parker, individually and on his behalf, sued CCS/Meadow Pines, Inc. We refer to plaintiff as Parker and CCS/Meadow Pines, Inc., as the Hospital.\\n. Cody's alleged injuries occurred November 10, 2001. Parker filed suit November 10, 2003, but never filed an expert report. The Hospital filed its motion to dismiss May 12, 2004, and the trial court granted that motion June 9, 2004, delaying consideration of attorney's fees until later.\\n. Tex Civ. Prac. & Rem.Code Ann. \\u00a7 74.001(a)(13).\\n. An issue on appeal can be waived for inadequate briefing. See Tex.R.App. P. 38.1(h); Santillan v. Nat'l Union Fire Ins. Co., 166 S.W.3d 823, No. 08-04-00101-CV, 2005 WL 1362709, at *2, 2005 Tex.App. LEXIS 4427, at *3-4 (Tex.App.-El Paso June 9, 2005, no pet.); Franz v. Katy Indep. Sch. Dist., 35 S.W.3d 749, 755 (Tex.App.-Houston [1st Dist.] 2000, no pet.).\"}"
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+"{\"id\": \"9013912\", \"name\": \"Robert PICKENS, Appellant, v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Pickens v. State\", \"decision_date\": \"2005-03-10\", \"docket_number\": \"No. 07-04-0309-CR\", \"first_page\": \"272\", \"last_page\": \"274-278\", \"citations\": \"159 S.W.3d 272\", \"volume\": \"159\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T00:27:07.643508+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before QUINN, REAVIS, and CAMPBELL, JJ.\", \"parties\": \"Robert PICKENS, Appellant, v. The STATE of Texas, Appellee.\", \"head_matter\": \"Robert PICKENS, Appellant, v. The STATE of Texas, Appellee.\\nNo. 07-04-0309-CR.\\nCourt of Appeals of Texas, Amarillo.\\nMarch 10, 2005.\\nDavid Crook, Crook & Jordan, Lubbock, for appellant.\\nWilliam C. Sowder, Dist. Atty., Lubbock, for appellee.\\nBefore QUINN, REAVIS, and CAMPBELL, JJ.\", \"word_count\": \"949\", \"char_count\": \"5796\", \"text\": \"BRIAN QUINN, Justice.\\nRobert Pickens (appellant) appeals his conviction for evading detention through four issues. The first two concern whether the trial court erred in denying his motion to suppress evidence while the last two involve the legal and factual sufficiency of the evidence underlying the jury's verdict. We affirm the judgment.\\nBackground\\nWhile returning from a call and at around 9:00 a.m., Officer Calvillo observed a pickup truck parked in an alley behind a house. It was raining, misty, and cloudy at the time, and no one was seen around the vehicle. The officer nonetheless continued on. However, as he did, he noticed that the house behind which the truck was parked appeared vacant and had a \\\"for sale\\\" sign in front of it. So too did he notice movement in the vehicle after he turned down an intersecting street to gain a different vantage point. It appeared to the officer that someone was bent over inside the cab as if to retrieve something.\\nRecalling that several burglaries had recently occurred in the area, that it was a \\\"common occurrence\\\" for vacant homes to be burglarized, and that appliances and air conditioning units were often the objects taken, Calvillo decided to enter the alley behind the truck. As the officer approached, the truck's \\\"brake lights come [sic] on\\\" as did its \\\"turn lights,\\\" and the driver began to pull away. When the vehicle and its occupant (who was later identified as appellant) came to the end of the alley and turned on to the adjoining street, Calvillo engaged his emergency lights. Appellant looked back at Calvillo and pointed in the direction of another street, but he did not stop. Instead, appellant sped up. The officer then turned on his sirens. Appellant continued on and began to turn down streets in the residential area. So too did he run a stop sign and drive down a turning lane, both of which were traffic violations according to the officer. The group eventually stopped after appellant turned onto a dead-end street. At that point, appellant was arrested.\\nA search of the vehicle revealed a syringe cap inside the truck. Furthermore, appellant had thrown a plastic baggy from the track after encountering Calvillo and as the pair drove through the area. When the baggy was retrieved, it was discovered to contain syringes and a burned cotton swab. Appellant also had a fresh needle mark on his arm.\\nIssues 1 and 2 \\u2014 Motion to Suppress\\nIn his first two issues, appellant contends that the trial court erred in failing to grant his motion to suppress. Suppression was required because the officer had no basis upon which to initially detain appellant as he drove from the alley, so appellant argues. We overrule the point.\\nThe Court of Criminal Appeals recently held that, in a case wherein the accused is charged with evading arrest or detention, it is improper to request the trial court to rule upon a pretrial motion to suppress evidence when the movant questions the validity of the detention. Woods v. State, 153 S.W.3d 413, 415-16 (Tex.Crim.App.2005). This is so because, under that circumstance, the trial court is being asked to determine whether there is proof of an element of the offense, and that is not the purpose of a pretrial hearing. Id. Given that the trial court was prohibited from acting upon appellant's pretrial motion to suppress, we cannot say that it erred in refusing to grant the motion.\\nIssues 3 and 4 \\u2014 Sufficiency of the Evidence\\nIn his third and fourth issues, appellant questions the legal and factual sufficiency of the evidence to sustain his conviction. Purportedly, the evidence was insufficient because Calvillo lacked reasonable suspicion to try and stop appellant as the latter left the alley. We overrule the points.\\nThe standards by which we review legal and factual sufficiency challenges are well established. We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), Sims v. State, 99 S.W.3d 600 (Tex.Crim.App.2003), Zuliani v. State, 97 S.W.3d 589 (Tex.Crim.App.2003), and King v. State, 29 S.W.3d 556 (Tex.Crim.App.2000) for their explanation.\\nNo one disputes that the attempt at detention must be lawful before one can be convicted of evading detention. Moreover, authority holds that even if the initial attempt at detention is unlawful, the suspect may be stopped or arrested for criminal acts which he commits while attempting to avoid the officer. Blount v. State, 965 S.W.2d 53, 54-55 (Tex.App.Houston [1st Dist.] 1998, pet. ref'd). In other words, the fact that an officer may not have basis to stop a suspect does not insulate the suspect from arrest for other crimes committed while attempting to avoid the initial detention. So, assuming arguendo that Officer Calvillo lacked both reasonable suspicion and probable cause to detain appellant in the alley, such arose once appellant violated the traffic laws while attempting to evade Calvillo. And, since evidence appears of record indicating that appellant continued in his effort to evade the officer after violating those laws, the jury had before it sufficient evidence to rationally conclude, beyond reasonable doubt, that the eventual stop was indeed lawful. See id. at 55 (holding that a suspect is not seized until the stop is effectuated). Furthermore, the evidence was neither weak nor overwhelmed by any contradictory evidence. Consequently, the verdict enjoyed the support of both legally and factually sufficient evidentiary support.\\nThe judgment of the trial court is affirmed.\"}"
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+"{\"id\": \"9331520\", \"name\": \"Ollie THOMPSON, III, Appellant, v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Thompson v. State\", \"decision_date\": \"2002-11-21\", \"docket_number\": \"No. 01-02-00253-CR\", \"first_page\": \"469\", \"last_page\": \"473\", \"citations\": \"95 S.W.3d 469\", \"volume\": \"95\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:29:12.184028+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel consists of Justices NUCHIA, JENNINGS, and RADACK.\", \"parties\": \"Ollie THOMPSON, III, Appellant, v. The STATE of Texas, Appellee.\", \"head_matter\": \"Ollie THOMPSON, III, Appellant, v. The STATE of Texas, Appellee.\\nNo. 01-02-00253-CR.\\nCourt of Appeals of Texas, Houston (1st Dist.).\\nNov. 21, 2002.\\nShawna L. Reagin, Houston, for Appellant.\\nKelly Ann Smith, Assistant District Attorney, Houston, for Appellee.\\nPanel consists of Justices NUCHIA, JENNINGS, and RADACK.\", \"word_count\": \"1506\", \"char_count\": \"9381\", \"text\": \"OPINION\\nTERRY JENNINGS, Justice.\\nAppellant, Ollie Thompson, III, challenges the convicting court's order denying his motion for post-conviction DNA testing. In his sole point of error, appellant argues that the trial court erred in denying his motion because he established by a preponderance of the evidence that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing of the state's trial evidence. We affirm.\\nFactual and Procedural Background\\nOn December 8, 1995, a jury found appellant guilty of the offense of aggravated assault with a deadly weapon and assessed his punishment at 50 years confinement. On October 16, 2001, appellant filed a pro se motion for forensic DNA testing of biological evidence. See Tex.Code Cmm. PROC. Ann. art. 64.01-.05 (Vernon Supp.2002). The trial court appointed counsel to represent appellant after the motion was filed. See id. at art. 64.01(c). After the State filed its written response to the motion for DNA testing, the trial court considered the arguments of counsel for both parties, and denied the motion.\\nThe underlying facts at trial showed that the complainant was assaulted by three men, including the appellant, and that appellant cut the complainant with a box cutter. The complainant testified that the assailants approached him to purchase cocaine. After the complainant refused to sell them cocaine, he was struck on the back of the head with a bottle, and he then tried to ran away. The assailants caught the complainant, and appellant cut the complainant on the neck and arm. After the assault, the complainant reported the incident to a Houston Police officer and gave a general description of the three men. A few minutes later, another officer detained appellant and another man who met the description of the assailants. The officer found an orange box cutter, which appeared to have blood on it, on the ground where appellant had been standing. The officer then took appellant, the co-defendant, and the box cutter to the complainant. The complainant identified the men as two of his assailants and the box cutter as the weapon used against him during the attack. The complainant was later taken to a hospital where he received 175 stitches in his neck and 75 stitches in his right arm.\\nStatutory Jurisdiction\\nInitially, the State argues that this Court has no statutory authority to consider this appeal because appellant's motion was inadequate and the trial court, without holding an evidentiary hearing, summarily denied the motion without ruling on the merits. Article 64.03 of the Code of Criminal Procedure provides, in pertinent part, as follows:\\n(a) A convicting court may order forensic DNA testing under this chapter only if:\\n(1) the court finds that:\\n(A) the evidence:\\n(i) still exists and is in a condition making DNA testing possible; and\\n(ii) has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; and\\n(B) identity was or is an issue in the case; and\\n(2) the convicted person establishes by a preponderance of the evidence that:\\n(A) a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing; and\\n(B) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.\\nTex.Code CRIM. ProC. Ann. art. 64.03(a).\\nAn appeal of a finding under article 64.03 or 64.04 is taken to a court of appeals unless the appellant's conviction is for capital murder. Tex.Code Crim. Proc. Ann. art. 64.05. The Texas Court of Criminal Appeals has addressed the statutory jurisdiction of an appellate court to hear appeals of a convicting court's findings under Chapter 64. See Kutzner v. State, 75 S.W.3d 427, 432 (Tex.Crim.App.2002). After examining the legislative history of Chapter 64, the Court found nothing to indicate a legislative intent to foreclose an appeal of a convicting court's article 64.03(a)(2) determination. Id. at 433. The Court explicitly \\\"rejected\\\" a \\\"narrow and hypertechnical construction of Article 64.05.\\\" Id. at 432. Moreover, the Court held that \\\"the Legislature intended to authorize appellate review of all of the convicting court's Article 64.03 determinations.\\\" Id. at 434 (emphasis added).\\nAfter considering the motion and affidavit of appellant and the State's written response, the trial court denied appellant's motion for DNA testing without holding an evidentiary hearing. Such a preliminary ruling under article 64.03 does not preclude an appeal. In fact, nothing in article 64.30 requires a hearing of any sort concerning a trial court's determination of whether a defendant is entitled to DNA testing. See Rivera v. State, 89 S.W.3d 55 (Tex.Crim.App.2002). Thus, we hold that Article 64.05 authorizes this Court to review the trial court's findings, express or implied, on appellant's Chapter 64 motion.\\nSufficiency of Motion\\nIn his sole point of error, appellant contends that the trial court erred in denying his motion for DNA testing because the motion and supporting affidavit satisfied the statutory requirements of article 64.03.\\nAn applicant, in order to obtain forensic DNA testing, must establish by a preponderance of evidence that a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. Tex.Code CRiM. Proc. Ann. art. 64.03(a)(2)(A). The Court of Criminal Appeals has interpreted this to mean that an applicant must show \\\"a reasonable probability exists that exculpatory DNA tests will prove [his] innocence.\\\" Kutzner, 75 S.W.3d at 438.\\nAppellant, in his brief, contends that he has met the \\\"reasonable probability\\\" standard by showing that the evidence to be tested is in the possession of the State and, at the time of trial, it contained biological material that if subjected to testing would \\\"more likely than not either establish the identity of the person committing the offense or exclude a person from the group of persons who could have committed the offense.\\\" Appellant contends that the only evidence linking him to the offense, outside of the complainant's identification of appellant, was the orange box cutter found on the ground near appellant when he was arrested. Appellant points out that, at trial, a police officer testified that the knife had blood on it. During its closing argument, the State argued that the substance on the knife was blood and that appellant had blood on his shirt. Appellant argues that, had the complainant's identification of appellant not been supported and bolstered by the bloody box cutter, \\\"the jury likely would have entertained a reasonable doubt as to his guilt.\\\"\\nWhether the jury \\\"likely would have entertained a reasonable doubt\\\" as to appellant's guilt does not constitute a reasonable probability that exculpatory DNA tests would prove his innocence. Here, we cannot conclude that exculpatory DNA tests on the box cutter would prove appellant's innocence. The bloody box cutter was not the only evidence available to the State. The record reflects that appellant, who met the physical description of one of the assailants, was arrested in close proximity to the crime a few minutes after the assault. The complainant testified that he was cut with an orange box cutter, and he identified appellant at the scene of the crime as one of his assailants, just minutes after the assault. Moreover, the box cutter was found on the ground near appellant at the time of his arrest. Thus, even if DNA testing proved that the box cutter did not contain complainant's blood or any blood at all, it would not prove appellant's innocence. Even if negative test results were to supply an exculpatory inference, such an inference in this ease would not conclusively outweigh the other evidence of appellant's guilt. See Rivera, (holding absence of DNA under murder victim's fingernails and negative result from rape kit would not indicate innocence of capital murder).\\nAt best, exculpatory DNA tests on the box cutter would \\\"merely muddy the waters.\\\" See Kutzner, 75 S.W.3d at 439. Here, the record supports an implied finding by the convicting court that no reasonable probability exists that exculpatory DNA testing of the box cutter would prove appellant's innocence. Thus, we hold the convicting court did not err in denying appellant's motion for DNA testing.\\nWe overrule appellant's sole point of error.\\nConclusion\\nWe affirm the order of the convicting court.\\n. Appellant's conviction was affirmed by this court. Thompson v. State, No. 01-95-01518-CR, 1997 WL 81168 (Tex.App.-Houston [1st Dist.] February 27, 1997, no pet.) (not designated for publication).\\n. We have reconsidered our order of September 5, 2002, and conclude that written findings of fact signed by the trial court, if any, are not necessary to the resolution of this appeal. We therefore order withdrawn our September 5, 2002 order.\"}"
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+"{\"id\": \"9405880\", \"name\": \"Anna ROACH, Appellant, v. DENTAL ARTS LABORATORY, INC., Appellee\", \"name_abbreviation\": \"Roach v. Dental Arts Laboratory, Inc.\", \"decision_date\": \"2002-06-20\", \"docket_number\": \"No. 09-01-490 CV\", \"first_page\": \"265\", \"last_page\": \"269\", \"citations\": \"79 S.W.3d 265\", \"volume\": \"79\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T23:33:42.912780+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WALKER, C.J., BURGESS and GAULTNEY, JJ.\", \"parties\": \"Anna ROACH, Appellant, v. DENTAL ARTS LABORATORY, INC., Appellee.\", \"head_matter\": \"Anna ROACH, Appellant, v. DENTAL ARTS LABORATORY, INC., Appellee.\\nNo. 09-01-490 CV.\\nCourt of Appeals of Texas, Beaumont.\\nSubmitted Feb. 26, 2002.\\nDecided June 20, 2002.\\nDarrell Minton, Harris, Lively & Dues-ler, LLP, Beaumont, for appellant.\\nGeorge B. Barron, Orange, for appellee.\\nBefore WALKER, C.J., BURGESS and GAULTNEY, JJ.\", \"word_count\": \"1710\", \"char_count\": \"10278\", \"text\": \"OPINION\\nDAVID B. GAULTNEY, Justice.\\nAnna Roach appeals from a judgment awarding appellee Dental Arts Laboratory, Inc. property damages in an automobile negligent entrustment case.\\nThe Claim\\nDental Arts Laboratory, Inc. sued appellant Anna Roach and Stan Horton for negligent entrustment. The elements of a negligent entrustment cause of action are as follows: \\\"(1) entrustment of a vehicle by the owner; (2) to an unlicensed, incompetent, or reckless driver; (3) that the owner knew or should have known to be unlicensed, incompetent, or reckless; (4) that the driver was negligent on the occasion in question; and (5) that the driver's negligence proximately caused the ac cident.\\\" Williams v. Steves Indus., Inc., 699 S.W.2d 570, 571 (Tex.1985). After a bench trial, the trial court entered judgment against appellant and Horton jointly and severally.\\nFacts\\nAnna Roach had known Horton's mother, Diane Sonnier, for approximately seven years; they were good friends. Roach was also acquainted with Horton. The record reveals Horton had a problem with cocaine addiction, a subject that appellant and Sonnier had discussed and prayed about for some time. In addition to knowing about Horton's drug problem, appellant was also aware that his previous attempts to get off crack had been unsuccessful. Sonnier testified Horton had received drug treatment and counseling on prior occasions, but was not involved in either one at the time of the accident. Sonnier also testified that Horton was staying with her prior to the accident and had not used cocaine for several weeks; he was looking for a job, trying to get his life together, and had made improvement. At the time appellant entrusted her car to Horton, she was aware of his recent progress.\\nIn June 1998, appellant entrusted her car to Horton so that he could repair it for her. He made the repairs and returned the car to her without incident. A few days later, on June 22, 1998, she again entrusted her vehicle to Horton for repairs. He was to drive it to town to obtain parts, look for a job while in town, and then do the repair work. When Horton did not return the vehicle to her, appellant filed a complaint with the West Orange Police Department on June 24, 1998, for unauthorized possession of her vehicle. Her written statement to the police is as follows:\\nOn 6-22-98 I let Stan Horton take my 1996 Chrysler New Yorker to Beaumont to fix it. He told me that it would only be a few days. As of 6-24-98 he has not returned my car. I do wish to file charges.\\nThe car was located on June 25,1998, after it was involved in an accident. Following the accident, the occupants of appellant's car fled the scene, and the driver, whose identity is unknown, was never located.\\nAssistant Police Chief Romero handled some of the investigation on the case. In his opinion, appellant's whole purpose in entrusting the vehicle to Horton was to have it repaired. After Romero tried unsuccessfully to contact Horton to discuss the matter, Horton later telephoned him and confirmed that appellant had let him take the car to do mechanical work on it. Horton explained that while he was at a friend's house, he allowed another man to take the car to go get some beer. The officer asked if Horton had traded the car in exchange for crack cocaine. Horton indicated he did not. Romero did not believe him. Based on his experience with these transactions and the facts in the case, he believed Horton had loaned the car out in exchange for drugs. Romero indicated that Horton ultimately admitted he was a crack head and that his being a crack addict was behind the exchange of the car for cocaine.\\nRomero, who had been with the West Orange Police Department for fourteen years, testified about his experience with crack addicts. He indicated crack addicts lie a lot, specifically about taking crack cocaine, and they sometimes claim to have stopped using crack when, in fact, they are still addicted. He further acknowledged that even a reasonable person may believe a crack addict who claims he is no longer using crack. However, for a person like himself, i.e., someone with specialized knowledge, Romero indicated it would be unreasonable to allow a crack cocaine addict to use his car simply based on the fact that he had been praying (as had appellant and Sonnier) for Horton's deliverance.\\nIn describing his own experience, Romero testified he learned in the 1990s of the propensity of addicts to trade cars in exchange for crack cocaine. He did not believe that appellant would have had any idea that such trades occur. Romero agreed that it would have been easy for appellant to obtain advice from the police about whether to entrust her car to Horton, particularly since she had been to Romero's office on several occasions prior to June 24, 1998, the date she filed the complaint. However, since Roach had no idea that such trades even occur, Romero indicated it would not have crossed her mind to ask for advice on the matter. Based on evidence that Horton had made improvement and was looking for a job, Officer Romero testified he did not believe it was unreasonable for appellant to think Horton was cleaning up his act.\\nIssues\\nOn appeal, appellant submits various issues, including arguments that, in effect, challenge the viability of a \\\"double entrustment\\\" case, as well as arguments relating to the foreseeability element of probable cause. We need only consider issue five, since it is dispositive of the case. Relying on Restatement (Second) of ToRts \\u00a7 448 (1965), appellant argues that, as a matter of law, \\\"the criminal conduct of Stan Horton in trading [her] car for crack cocaine was an illegal act which extinguished [her] . liability.\\\" Through this issue, she, in effect, attacks the legal sufficiency of the evidence supporting the trial court's finding that her entrustment of her car to Horton was the proximate cause of the accident.\\nAnalysis\\nProximate cause has two elements, cause in fact and foreseeability. See Travis v. City of Mesquite, 880 S.W.2d 94, 98 (Tex.1992) (opinion on reh'g). Cause-in-fact means the act or omission was a substantial factor in bringing about the injury and without it harm would not have occurred. Id. Foreseeability means the actor, as a person of ordinary intelligence, should have anticipated the dangers her negligent act created for others. Id. However, foreseeability does not require the actor to anticipate the precise manner in which the injury will occur; rather, the injury need only be of a general character that the actor might reasonably anticipate. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex.2001).\\nAs a general rule, a third party's criminal conduct is a superseding cause that extinguishes the liability of the previous actor. See El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex.1987). However, if the third party's criminal conduct is a foreseeable result of the prior negligence, the criminal act does not excuse the previous tortfeasor's liability. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 550 (Tex.1985). Section 448 of the Restatement (Second) of Torts provides as follows:\\nThe act of. a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.\\nRestatement (Seoond) of ToRts \\u00a7 448 (1965); see also Nixon, 690 S.W.2d at 550. Neither party disputes the fact that between the time appellant entrusted the car to Horton and the date of the accident Horton loaned the car out to a third party in exchange for cocaine. An intervening event occurred. Where the parties differ is on the issue of the foreseeability of the criminal act.\\nCertainly, appellant knew Horton had a problem with crack cocaine. At most, such knowledge makes foreseeable the danger of driver error while under the influence of drugs. Appellant's knowledge regarding Horton's addiction, however, does not translate into the more specialized knowledge that persons addicted to drugs loan cars out in exchange for drugs. No probative evidence exists that appellant was aware of, or should have been aware of, any propensity on Horton's part to loan the car out in exchange for drugs. The record reveals that Romero, a police officer with specialized knowledge, had knowledge of such propensity \\u2014 a fact that the officer learned in his professional capacity during the 1990s; but there is no evidence appellant had such knowledge. Indeed, her own experience with Horton the week before belied the propensity.\\nForeseeability requires that a person of ordinary intelligence should have anticipated the danger caused by a negligent act or omission. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex.1995). Foresight is not measured by hindsight. Foreseeing that Horton would loan the car to someone else under criminal circumstances and that the person to whom he loaned the car would then in turn negligently cause an accident requires a prescience that exceeds anything the law requires. The evidence is legally insufficient to support the trial court's finding of proximate cause; the criminal act was a superseding cause of harm that was unforeseeable as a matter of law. We need not address appellant's other issues, since our holding on issue five is dispositive of the case. We reverse the judgment of the trial court and render judgment that Dental Arts Laboratory, Inc. take nothing on its claim against Anna Roach.\\nREVERSED AND RENDERED.\\n. Horton did not answer the suit, did not enter an appearance, and is not appealing. The judgment is final as to him.\"}"
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+"{\"id\": \"9438098\", \"name\": \"In the Matter of D.A.R., a juvenile, Appellant\", \"name_abbreviation\": \"In re D.A.R.\", \"decision_date\": \"2002-04-04\", \"docket_number\": \"No. 08-01-00075-CV\", \"first_page\": \"505\", \"last_page\": \"518\", \"citations\": \"73 S.W.3d 505\", \"volume\": \"73\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T23:19:56.243467+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Panel No. 1 LARSEN, McCLURE, and CHEW, JJ.\", \"parties\": \"In the Matter of D.A.R., a juvenile, Appellant.\", \"head_matter\": \"In the Matter of D.A.R., a juvenile, Appellant.\\nNo. 08-01-00075-CV.\\nCourt of Appeals of Texas, El Paso.\\nApril 4, 2002.\\nM. Clara Hernandez, El Paso County Public Defender, Penny Lee Andersen, Assistant Public Defender, Ruben Morales, El Paso, for Appellant.\\nJose R. Rodriguez, County Attorney, Pierre T. Williams, Assistant County Attorney, El Paso, for Appellee.\\nBefore Panel No. 1 LARSEN, McCLURE, and CHEW, JJ.\", \"word_count\": \"6574\", \"char_count\": \"40187\", \"text\": \"OPINION\\nLARSEN, Justice.\\nD.A.R., a juvenile, appeals his judgment of probation for delinquent conduct. He argues that the trial court erred in denying his motion to suppress statements because they were inadmissible as a result of noncompliance with Tex. Fam.Code Ann. \\u00a7 51.095 and that he therefore was denied his due process rights. We reverse and remand.\\nFacts\\nD.A.R. was indicted for one count of delinquent conduct for carrying a firearm on school grounds. He was indicted for one count of delinquent conduct for possessing a firearm with an altered identification number. He initially pleaded not true to each count.\\nD.A.R. filed a pretrial motion to suppress, urging that at the time statements were made, he was under arrest and that he was deprived of the right to counsel and therefore did not intelligently, understandably, and knowingly waive his right to counsel. He argued that any resulting statements were involuntary, coerced, or enticed from him in violation of his constitutional and statutory rights. A hearing was held on the motion. Officer Jose A. Gonzalez, Jr., a school resource officer, was the only witness presented at the hearing.\\nOfficer Gonzalez testified that on November 17, 2000, he was notified by the assistant principal of Riverside Middle School that a student had said that D.A.R. had a weapon. D.A.R. was called to the assistant principal's office. Before D.A.R. entered the office, he was patted down. The assistant principal also went through D.A.R.'s backpack. No weapon was retrieved. D.A.R. was questioned but denied having any weapon.\\nD.A.R. was dismissed to return to class. Afterward, approximately fifteen students approached Officer Gonzalez and told him that D.A.R. was in possession of a gun and that they had been hearing that D.A.R. had brought a gun to school for his protection. One of the individuals told Officer Gonzalez that she had seen the gun before school. Although she did not know exactly where the gun was located, she took Officer Gonzalez to the area around a reservoir where the gun might be.\\nOfficer Gonzalez summoned D.A.R. from class. A security guard brought D.A.R. to Officer Gonzalez's office. Officer Gonzalez again asked D.A.R. about the gun. He told D.A.R. that several students had told him that D.A.R. had a gun and that if D.A.R. had a gun it would be best for him to give it up.\\nDuring this second interrogation, a teacher signaled Officer Gonzalez and spoke privately with him. She told him that another student had information about the location of the gun. Officer Gonzalez testified at the hearing that if appellant had refused to speak to him, he would have spoken to the other student; however, he did not then speak to the student. Instead, he continued to speak to D.A.R. because of his need to secure the weapon as soon as possible. The other student was never questioned.\\nAfter the interruption, D.A.R. told Officer Gonzalez where the weapon was located and took him to it. The gun was discovered under a tire, approximately 150 feet from the school within the same area where the other student had taken Officer Gonzalez. The gun was not in plain view. D.A.R. was read his Miranda rights and placed in custody.\\nThe trial judge denied the motion to suppress based on the belief that the statements were admissible under Tex. Fam. Code Ann. \\u00a7 51.095(a)(2).\\nThereafter, D.A.R. entered into an agreement to plead true to one count of delinquent conduct based on carrying a firearm in violation of Tex. Penal Code Ann. \\u00a7 46.02, which was a modified version of the original first count. The second count of delinquent conduct was dropped. D.A.R. was adjudicated delinquent and received supervised probation until his eighteenth birthday for the offense.\\nD.A.R. brings one point on appeal of the judgment and seeks reversal and remand.\\nRight to appeal\\nA juvenile appellant is given the right to appeal under Tex. Fam.Code Ann. \\u00a7 56.01(n), which states:\\nA child who enters a plea or agrees to a stipulation of evidence in a proceeding held under this title may not appeal an order of the juvenile court entered un der Section 54.03, 54.04, or 54.05 if the court makes a disposition in accordance with the agreement between the state and the child regarding the disposition of the case, unless:\\n(1) the court gives the child permission to appeal; or\\n(2) the appeal is based on a matter raised by written motion filed before the proceeding in which the child entered the plea or agreed to the stipulation of evidence.\\nTex. Fam.Code Ann. \\u00a7 56.01(n) (Vernon Supp.2002). Here, the trial court gave appellant implied permission to appeal his judgment. Moreover, appellant brings appeal based on the denial of his motion to suppress, which was filed pretrial, and it was only after appellant's motion to suppress was denied that his agreement with the State arose. Therefore, this appeal is appropriate.\\nAdmissibility of statements\\nUnder Tex. Fam.Code Ann. \\u00a7 51.095, certain requirements must be met in order for a statement from a juvenile to be admissible at trial. Tex. Fam.Code Ann. \\u00a7 51.095 (Vernon Supp.2002); see also In re Gault, 387 U.S. 1, 55, 87 S.Ct. 1428, 1458, 18 L.Ed.2d 527 (1967) (holding that the right against self-incrimination available to adults is also applicable in the juvenile context), cited in In re L.M., 993 S.W.2d 276, 287 (Tex.App.\\u2014Austin 1999, pet. denied). Here, appellant argues in his sole issue that the requirements of Section 51.095 were not met and that therefore his statements were inadmissible under Tex. Code CRiM. PROC. Ann. art. 38.23. Specifically, appellant argues that he was in custody when the statements were made. As a result, he should have been informed of his rights before he was questioned. Appellant argues that even if he was not in custody when the confession was given, his statements were not made voluntarily. In response, the State argues that appellant was not in custody when the statements were made. The State further contends that the issue of voluntariness and coercion cannot be raised because appellant failed to preserve those claims in the lower court. If appellant was in custody when he was questioned by Officer Gonzalez, he was entitled to certain protections. Tex. Fam. Code Ann. \\u00a7 51.095(d) (Vernon Supp.2002). Therefore, the question central to this appeal is if appellant was in custody. We discuss this first.\\nStandard of review\\nIn a suppression hearing, the trial court is the sole finder of fact. Pace v. State, 986 S.W.2d 740, 744 (Tex.App.\\u2014El Paso 1999, pet. ref'd). The trial judge may believe or disbelieve any of the evidence presented. Id. at 744. The totality of circumstances is considered in determining whether the trial court's findings are supported by the record and, absent a clear abuse of discretion, the reviewing court does not disturb those findings. Brewer v. State, 932 S.W.2d 161, 166 (Tex.App.\\u2014El Paso 1996, no pet.). If there are no findings of fact, the reviewing court presumes the trial court found the facts necessary to support its ruling, so long as those findings are supported by the record. State v. Fecci, 9 S.W.3d 212, 219 (Tex.App.\\u2014San Antonio 1999, no pet.). Therefore, the evidence adduced at the suppression hearing is reviewed in the light most favorable to the trial court's ruling. Brewer, 932 S.W.2d at 166.\\nIn contrast, mixed questions of law and fact not turning on credibility and demeanor are subject to de novo review. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). Because the issue of custody does not turn on the credibility or demeanor of witnesses, the determination of whether an appellant was in custody at the time he gave statements is one such mixed question reviewed de novo. Jeffley v. State, 38 S.W.3d 847, 853 (Tex.App.\\u2014Houston [14th Dist.] 2001, pet. ref'd).\\nWas appellant in custody?\\nThe Court of Criminal Appeals, citing Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 1528-30, 128 L.Ed.2d 293, 298-99 (1994), stated that a person is in custody if \\\"under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest.\\\" Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App.1996). This is the standard of review that appellant relies on.\\nThe State refers to the standard utilized in In re M.R.R., Jr., 2 S.W.3d 319 (Tex.App.\\u2014San Antonio 1999, no pet.), to determine whether appellant was in custody at the time the statements were made. That standard employs a two-step analysis, set forth by Stansbury and another U.S. Supreme Court case, Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). The first prong examines the circumstances surrounding the interrogation in deciding whether there was a formal arrest or restraint to the degree associated with a formal arrest. In re M.R.R., Jr., 2 S.W.3d at 323. Under the second prong, the court considers whether a reasonable person would have felt he or she was at liberty to terminate the interrogation and leave. Id.\\nArguably, both standards allow for a consideration of the totality of circumstances and, we believe, implicit within that, the age of the juvenile. However, neither standard allows for an explicit consideration of the age of the juvenile. The standard that allows for such a consideration was set forth by the Austin Court of Appeals in In re L.M. See also Jeffley, 38 S.W.3d at 855 (adopting the standard of In re L.M.); In re E.M.R., 55 S.W.3d 712, 722-24 (Tex.App.\\u2014Corpus Christi 2001, no pet.) (Yanez, J., dissenting). The Austin court, in discussing the standard to be applied with respect to determining whether a juvenile is in custody, cited caselaw from other states that adopted the age of the juvenile as a specific consideration. The court then concluded that it is appropriate for Texas courts to also consider the age of the juvenile. In re L.M., 993 S.W.2d at 288-89. It then adopted the following inquiry: \\\"whether, based upon the objective circumstances, a reasonable child of the same age would believe her freedom of movement was significantly restricted.\\\" Id. at 289. The court was quick to note that although it incorporated an explicit consideration of age in its standard, its holding did not conflict with earlier Texas cases. Id. And, we note that the standard is similar to the Stansbury standard but includes an explicit consideration of the age of the juvenile.\\nWe too believe that a consideration of the age of the juvenile is appropriate. Furthermore, we believe that such a consideration is consistent with the stated purpose of the Juvenile Justice Code, which is, in part, to assure that juveniles receive a fair hearing and that their rights are recognized and enforced, Tex. Fam. Code ANN. \\u00a7 51.01(6) (Vernon 1996).\\nWe believe the facts here establish that a reasonable thirteen-year-old would have believed he was in custody. We are aided in our inquiry by Dowthitt, which gave several factors that might be considered in determining whether an individual was in custody. Among them, the court may consider whether there was probable cause to arrest at the time of questioning; the subjective intent of the police; the focus of the investigation; and the subjective belief of the juvenile. 931 S.W.2d at 254; see also In re V.P., 55 S.W.3d 25, 31 (Tex.App.\\u2014Austin 2001, pet. denied) (applying the Dowthitt factors to a situation involving a juvenile). But, the subjective elements are only relevant to the extent that they are manifested in words or actions, Dowthitt, 931 S.W.2d at 254, as the test for custody relies solely on objective circumstances, id. Even a determination of probable cause is based on such an expression. Id. at 255.\\nFirst, there was probable cause to arrest appellant. Officer Gonzalez testified that at least fifteen students had told him appellant had a gun. He felt that the statements could not be mere coincidence. At the very least, Officer Gonzalez had probable cause to arrest appellant after appellant admitted that he had a gun and had left it close to the school grounds. Tex. Fam.Code ANN. \\u00a7 52.01(a)(3) (Vernon 1996); Lanes v. State, 767 S.W.2d 789, 800 (Tex.Crim.App.1989); Vasquez v. State, 739 S.W.2d 37, 44 (Tex.Crim.App.1987) (holding that an officer may make a warrantless arrest if he has knowledge based upon reasonably trustworthy information that would warrant a reasonable and prudent person in believing that the person has committed or is committing a crime). At this point, Officer Gonzalez testified, appellant was no longer free to leave because he was under investigation.\\nA reasonable thirteen-year-old child in appellant's position, moreover, would have become aware of Officer Gonzalez's probable cause to arrest him. Appellant had been called to the assistant principal's office for the first interview, where the assistant principal, security officer, and Officer Gonzalez were present. Appellant had been released from the initial interview, but then the uniformed security guard escorted appellant from class to Officer Gonzalez's office for a second interview, during which only Officer Gonzalez and appellant were present. The door was closed, leaving appellant alone with an armed, uniformed police officer who confronted him with allegations by numerous students that appellant had a gun. During the initial interview, appellant was told that it was rumored he had brought a gun, but during the second interview, Officer Gonzalez told him that fifteen students had told him appellant had a gun. Officer Gonzalez pressed appellant to tell him where the gun was, telling appellant that it was too much of a coincidence that all of the students had told him appellant had a gun and that it would be best for appellant to confess. And certainly, after appellant made his confession, he would have realized Officer Gonzalez's probable cause to arrest him, given that the incriminating nature of his statement would substantiate Officer Gonzalez's probable cause. See Dowthitt, 931 S.W.2d at 255.\\nOfficer Gonzalez testified that he did not question the student the teacher had told him about because he was worried about that child's safety. Specifically, he was concerned about any retaliation that might come as a result of the child acting as an informant. The second student would have been needed if appellant had been uncooperative and the student had helped locate the gun instead. Thus, appellant was the focus of the investigation, and the evidence suggests that the investigation was more than merely an attempt to secure the safety of the students; the evidence suggests that the investigation became criminal in nature and that not only was Officer Gonzalez attempting to secure the safety of the students, but he was also looking to the future criminal proceedings against appellant.\\nOfficer Gonzalez also testified that he did not consider appellant to be in custody during either the first or second inquiries and testified that appellant was not Mir-andized before the weapon was found because appellant was not then under arrest. During the second inquiry, in which only he and appellant were present, Officer Gonzalez believed that appellant was free to leave. Appellant was not handcuffed and the door was not locked.\\nBut, neither was appellant told that he could leave. The door, although unlocked, was closed. Officer Gonzalez testified if appellant had been uncooperative, he would not have been allowed to leave; rather, appellant would have been required to stay in Officer Gonzalez's office while the other student was questioned.\\nAppellant was first questioned in the assistant principal's office by the assistant principal. During the second inquiry, appellant was taken to the police officer's office by a uniformed security guard. Appellant was unaccompanied when he was questioned, and he was not told that he could leave or call an adult to join him. We believe the facts were such that appellant would have believed his freedom of movement was significantly restricted. Cf. In re V.P., 55 S.W.3d at 33 (holding a juvenile not in custody where the juvenile, who brought a gun to school, was questioned in the assistant principal's office, because the juvenile was not questioned by the police officer and the officer was not present during the inquiry and as a result the juvenile was not the subject of a criminal investigation).\\nIt was not until appellant was confronted with the statements the other students had made that he confessed to Officer Gonzalez that he had a gun and that he had left it close to the school grounds. Officer Gonzalez testified: \\\"I told him I had information that he had the gun and it was too much of a coincidence that 15 students were telling me about his gun.\\\" Officer Gonzalez told appellant that \\\"it would be best for [appellant]\\\" if appellant told him about the gun. Even if appellant was not initially under arrest when he was called into Officer Gonzalez's office, the interrogation escalated into an arrest. See Jeffley, 38 S.W.3d at 857 (holding that when a suspect that was not previously in custody was pressed by the questioning officer for a truthful statement the situation escalated into a custodial interrogation and the appellant could have concluded that her freedom was inhibited significantly as to the extent of a formal arrest); Dowthitt, 931 S.W.2d at 255 (\\\"[T]he mere fact that an interrogation begins as noncustodial does not prevent custody from arising later; police conduct during the encounter may cause a consensual inquiry to escalate into custodial interrogation.\\\").\\nIn light of the circumstances, we believe that appellant was in custody when his statements were made. Although the events here occurred in quick succession, there was sufficient time for Officer Gonzalez to realize that appellant came into custody and should have been given proper warnings. Yet, Officer Gonzalez issued no warnings to appellant and instead asked appellant to take him to the gun.\\nAppellant's statements were oral. Therefore, the admissibility of appellant's statements is guided by Tex. Fam.Code Ann. \\u00a7 51.095(a)(5). Among its several requirements, a statement is only admissible if the child is given warnings by a magistrate before the statement is made and the child knowingly, intelligently, and voluntarily waives each right stated in the warning. Tex. Fam.Code Ann. \\u00a7 51.095(a)(5)(A) (Vernon Supp.2002). The appropriate warnings were not administered to appellant here. Accordingly, we believe the trial court ruled incorrectly in concluding that appellant's statements were admissible under Section 51.095(a)(2).\\nHarm\\nWe consider next whether the trial court's error was harmful under Tex. R.App. P. 44.2, which governs error in criminal cases. Error may be constitutional in nature, and the reviewing court must reverse the judgment of the lower court unless it determines beyond a reasonable doubt that the error was harmless. Tex.R.App. P, 44.2(a). If the error is non-constitutional, it must be disregarded unless it affects substantial rights. Tex. R.App. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 4 (Tex.Crim.App.2001). The improper admission of a statement in response to custodial interrogation implicates the constitutional right against self-incrimination. See Tex.Code CRiM. PROC. Ann. art. 38.23 (Vernon 1979 & Supp.2002); In re L.M., 993 S.W.2d at 287 (relying on In re Gault in applying the constitutional right against self-incrimination to children). We therefore employ the harm analysis mandated by Tex.R.App. P. 44.2(a).\\nThis Court stated in Villalobos v. State, 999 S.W.2d 132 (Tex.App.\\u2014El Paso 1999, no pet.), \\\"Essentially, where constitutional error is shown, the burden is on the State to come forward with reasons why the error is harmless.\\\" Id. at 136. We will reverse unless the record establishes beyond a reasonable doubt that the admission did not contribute to the conviction.\\nIn the present case, we cannot find beyond a reasonable doubt that the trial court's denial of the motion to suppress did not affect appellant's decision to plead guilty and the resulting conviction. The error arose from appellant's interrogation while in custody, which violated his rights under the Juvenile Justice Code and his constitutional rights against self-incrimination. Likely, any juror would have placed great weight on the statements that appellant made. And the probable implication of the error was appellant's decision to plead guilty, subsequent to the denial of his motion to suppress. Thus, we conclude that error was harmful.\\nBecause we find that the appellant was not properly warned in accordance with Section 51.095, we need not discuss the voluntariness of appellant's statement.\\nWe sustain appellant's point.\\nConclusion\\nWe reverse the judgment of the trial court and remand for further proceedings.\\nMcCLURE, J., dissenting.\\n. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).\\n. Under Section 51.095(a)(2), the statement of a child is admissible in evidence if the statement is made orally and the child makes a statement of facts or circumstances that are determined to be true and tend to establish his guilt. Tex. Fam.Code Ann. \\u00a7 51.095(a)(2) (Vernon Supp.2002).\\n. We rely on criminal cases in this analysis because, as we noted in In re R.S.C., 940 S.W.2d 750 (Tex.App.\\u2014El Paso 1997, no pet.), \\\"[ajlthough juvenile delinquency proceedings are considered civil proceedings, they are quasi-criminal in nature. The juvenile is guaranteed the constitutional rights an adult would have in a criminal proceeding because the juvenile delinquency proceedings seek to deprive the juvenile of his liberty.'' Id. at 751 (citations omitted).\\n. See also In re S.A.R., 931 S.W.2d 585 (Tex.App.\\u2014San Antonio 1996, pet. denied), and In re V.M.D., 974 S.W.2d 332 (Tex.App.\\u2014San Antonio 1998, no pet.), which In re L.M. cites as using the reasonable person standard of Stansbury while impliedly considering the age of the defendant in reviewing the circumstances in each case. 993 S.W.2d at 288.\"}"
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+"{\"id\": \"9924821\", \"name\": \"Wallace HOLYFIELD, Appellant, v. MEMBERS MUTUAL INSURANCE COMPANY, Appellee\", \"name_abbreviation\": \"Holyfield v. Members Mutual Insurance Co.\", \"decision_date\": \"1978-04-04\", \"docket_number\": \"No. 19494\", \"first_page\": \"28\", \"last_page\": \"30\", \"citations\": \"566 S.W.2d 28\", \"volume\": \"566\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T01:04:11.610068+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Wallace HOLYFIELD, Appellant, v. MEMBERS MUTUAL INSURANCE COMPANY, Appellee.\", \"head_matter\": \"Wallace HOLYFIELD, Appellant, v. MEMBERS MUTUAL INSURANCE COMPANY, Appellee.\\nNo. 19494.\\nCourt of Civil Appeals of Texas, Dallas.\\nApril 4, 1978.\\nRehearing Denied May 2, 1978.\\nJames E. Brown, Briggs & Brown, Dallas, for appellant.\\nTom J. Stollenwerck, Moore & Peterson, Dallas, for appellee.\\nRichard S. Geiger, David B. Irons, Thompson, Coe, Cousins & Irons, Dallas, amicus curiae brief for Texas Auto. Ins. Service Office.\", \"word_count\": \"829\", \"char_count\": \"5280\", \"text\": \"ROBERTSON, Justice.\\nWallace Holyfield sued Members Mutual Insurance Company, seeking recovery of Personal Injury Protection (PIP) benefits for his son, who was injured in a collision between Holyfield's motorcycle, which he was riding, and an automobile. Although two automobiles were listed as \\\"insured vehicles\\\" under the policy, the motorcycle was not listed. Separate PIP premiums were paid for the two automobiles, but no premium was paid regarding the motorcycle. The trial court rendered a take-nothing judgment for the insurance company, and Holyfield now appeals. We affirm.\\nThe principal question on this appeal is whether an insured may recover PIP benefits for injuries sustained while operating an owned vehicle not listed as an insured vehicle under the policy, and for which no premium has been paid. The policy in this case expressly excludes coverage of injuries sustained while \\\"occupying\\\" a vehicle owned by the named insured which is not an \\\"insured motor vehicle.\\\" The policy defines \\\"insured motor vehicle\\\" to mean:\\nAn automobile described in the policy to which bodily injury liability coverage applies and for which a specific premium charge indicates that personal injury protection is afforded. [Emphasis added]\\nSince the motorcycle was not described or listed on the policy, and no specific premium was charged to insure its operators, coverage is excluded under the policy. However, Holyfield argues that this exclusion is contrary to Article 5.06-3(a) of the Texas Insurance Code, which prohibits delivery of automobile insurance policies which do not include PIP coverage. He urges that the exclusion in his policy cannot be given effect, foreto do so would restrict the breadth of coverage mandated by the Code. At least one Texas court of civil appeals has agreed with this argument. See Western Alliance Insurance Company v. Dennis, 529 S.W.2d 838, 840 (Tex.Civ.App.-Texarkana 1975, no writ).\\nIn Western Alliance, the Texarkana court reasoned that since our supreme court had decided that an exclusion relating to uninsured motorist protection was an unlawful restriction of the coverage provided by statute, a similar result should be reached regarding PIP coverage. The supreme court case was Westchester Fire Ins. Co. v. Tucker, 512 S.W.2d 679, 686 (Tex.1974), in which the court, on rehearing, said:\\nAs stated in our original opinion, we have concluded that the policy exclusion of injuries sustained by an insured while occupying an owned but unscheduled vehicle is ineffectual to the extent that it deprives a person of coverage required by Article 5.06-1 of the Insurance Code. [Emphasis added]\\nThe problem with this statement is that, despite the court's reference, no such conclusion was reached in the original opinion. In Westchester, the insured claimed benefits under the uninsured motorist insurance coverage for injuries sustained in an owned and scheduled vehicle. The court did not mention owned and unscheduled vehicles in its original opinion, and since the question was not presented, we disagree with the Texarkana court's conclusion that West-chester is authoritative on this point.\\nNeither can we agree with the Texarkana court's holding that providing coverage only for scheduled vehicles is a denial of coverage provided by Article 5.06-3(a) of the Insurance Code. While we agree that Article 5.06-3 dictates the type of coverage which must be provided, it does not, by its terms, dictate which vehicles the policy must cover or prevent the insurer and insured from agreeing that only certain vehicles will be covered. An insurer is entitled to accurately reflect in the policy the risks being insured and to charge premiums based upon those risks. See Vaughn v. Atlantic Insurance Company, 397 S.W.2d 874 (Tex.Civ.App.\\u2014Tyler 1966, writ ref'd n. r. e.) quoting Lumbermens Mutual Casualty Co. v. Pulsifer, 41 F.Supp. 249 (D.C.Me.1941) (purpose of policy exclusion of nonscheduled vehicles is to allow premiums to be based upon known risks, thereby protecting insurer from increased liability occasioned by risks of which it might not be aware). This right would be frustrated if, as Holyfield argues, an insured who owns more than one vehicle could insure and pay premiums based solely on the risk attendant to that vehicle, and thereby render the insurer liable for injuries sustained in or because of other vehicles owned by him. We cannot presume that such a result was intended. A more reasonable reading of Article 5.06-3 is that it merely requires that PIP benefits be provided; the manner in which benefits are provided is left to agreement between the parties. Accordingly, we hold that the exclusion in this case is valid, and that the trial court properly denied recovery under the policy.\\nAffirmed.\\n. Uninsured motorist protection is mandated by Article 5.06-1 of the Texas Insurance Code.\"}"
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+"{\"id\": \"9924945\", \"name\": \"C. J. HIBBLER, Appellant, v. U. W. WALKER, Appellee\", \"name_abbreviation\": \"Hibbler v. Walker\", \"decision_date\": \"1980-03-04\", \"docket_number\": \"No. 8801\", \"first_page\": \"19\", \"last_page\": \"20\", \"citations\": \"598 S.W.2d 19\", \"volume\": \"598\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T21:55:28.935190+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"C. J. HIBBLER, Appellant, v. U. W. WALKER, Appellee.\", \"head_matter\": \"C. J. HIBBLER, Appellant, v. U. W. WALKER, Appellee.\\nNo. 8801.\\nCourt of Civil Appeals of Texas, Texarkana.\\nMarch 4, 1980.\\nMark A. Flaum, John Michael Webb, Webb & Fant, Houston, for appellant.\\nHouston C. Munson, Jr., Gary J. Schroeder, Gonzales, for appellee.\", \"word_count\": \"734\", \"char_count\": \"4414\", \"text\": \"HUTCHINSON, Justice.\\nThis is an appeal from the order of the trial court overruling a plea of privilege.\\nU. W. Walker, appellee, instituted this suit in Bastrop County against C. J. Hib-bler, appellant, a resident of Harris County, (1) on a promissory note; (2) to foreclose a security interest in certain personalty located in Harris County; and (3) to obtain a temporary injunction to prevent appellant from removing such personalty from Harris County or from allowing it to deteriorate. Appellant filed a plea of privilege seeking the transfer of the case to Harris County. Appellee's controverting affidavit asserts venue in Bastrop County under Subdivision 5 of Article 1995, Tex.Rev.Civ.Stat.Ann., on the basis that the note required payment to be made in Bastrop County.\\nThe promissory note provides that appellant promises to pay appellee\\n\\\". . .at Cedar Rock Ranch, Route 1, Box 28A, Rosanky, Bastrop County, Texas (payee or any other holder of the indebtedness represented by this Note having the right to require payment at such other place, or places, as payee or such holder may designate in writing from time to time) . . .\\nSubdivision 5(a) of Article 1995, Tex.Rev. Civ.Stat.Ann. (Supp.1980), provides:\\n\\\"Subject to the provisions of Subsection (b), if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.\\\"\\nAppellant contends that the note does not name a \\\"particular county\\\" where the note must be paid as required by Subdivision 5(a) since the payee or holder could change the place of payment at will by informing the maker in writing of such change. We agree with this assertion.\\nIt has long been recognized that the right to be sued in the county of one's domicile is valuable and in order for one to deprive a person of such right he must bring himself clearly within an exception provided by statute. The exception provided for in Subdivision 5 applies only in cases where the sued person agreed at the time he executed the instrument to perform his obligation thereunder in a particular place other than the county of his residence. General Motors Acceptance Corporation v. Christian, 11 S.W.2d 620 (Tex.Civ.App. El Paso 1928, no writ). In following this decision the court in Turner v. Ephraim, 28 S.W.2d 608 (Tex.Civ.App. El Paso 1930, no writ), stated that the words \\\"a particular county\\\" as used in Subdivision 5 mean a county fixed and certain at the time the instrument was executed. The alternative provision that the place of payment may be redesignated in writing from time to time by appellee or any other holder of the indebtedness makes the place of payment uncertain. McManus v. Texas Development Bureau, 73 S.W.2d 655 (Tex.Civ.App. Dallas 1934, no writ). Here, as in Yell v. Prock, 238 S.W.2d 238 (Tex.Civ.App. Fort Worth 1951, writ dism'd), the place of payment of the note is left open for determination at a later date at the will and pleasure of the appellee or some subsequent holder of the note. Subdivision 5 of Article 1995 does not permit such a deviation from the basic right of a person to be sued in the county of his residence. Rogers v. Thompson, 554 S.W.2d 803 (Tex.Civ.App. San Antonio 1977, no writ) Dowd v. Dowd, 359 S.W.2d 287 (Tex.Civ.App. Texarkana 1962, writ dism'd); Hromas v. Miller, 148 S.W.2d 968 (Tex.Civ.App. Dallas 1941, no writ); W. T. Rawleigh Co. v. Cooper, 111 S.W.2d 776 (Tex.Civ.App. El Paso 1937, no writ); W. T. Rawleigh Co. v. Karnes, 103 S.W.2d 431 (Tex.Civ.App. Texarkana 1937, no writ); Bryson v. Oliver Farm Equipment Sales Co., 61 S.W.2d 147 (Tex.Civ.App. Dallas 1933, no writ); General Motors Acceptance Corporation v. Hunsaker, 50 S.W.2d 367 (Tex.Civ.App. Amarillo 1932, writ dism'd); Pfeifer v. E. J. Hermann Sales Co., 43 S.W.2d 484 (Tex.Civ.App. San Antonio 1931, no writ).\\nThe order of the trial court overruling appellant's plea of privilege is reversed and the cause is ordered transferred to a District Court of Harris County.\"}"
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+"{\"id\": \"9925607\", \"name\": \"Ex parte Victor MAREK\", \"name_abbreviation\": \"Ex parte Marek\", \"decision_date\": \"1983-06-29\", \"docket_number\": \"No. 69104\", \"first_page\": \"35\", \"last_page\": \"38\", \"citations\": \"653 S.W.2d 35\", \"volume\": \"653\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Court of Criminal Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T21:33:08.385592+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ex parte Victor MAREK.\", \"head_matter\": \"Ex parte Victor MAREK.\\nNo. 69104.\\nCourt of Criminal Appeals of Texas, En Banc.\\nJune 29, 1983.\\nJames H. Kreimeyer, Belton, for appellant.\\nEdward J. Walsh, Dist. Atty., Georgetown, Robert Huttash, State\\u2019s Atty. and Alfred Walker, Asst. State\\u2019s Atty., Austin, for the State.\", \"word_count\": \"1643\", \"char_count\": \"9772\", \"text\": \"OPINION\\nCLINTON, Judge.\\nThis is an original habeas corpus proceeding brought under Article 4.04, V.A.C.C.P., and applicable provisions of Chapter Eleven, V.A.C.C.P., to obtain relief from an order of a district court purportedly under Article 20.15, V.A.C.C.P. \\\"holding witness in contempt for refusal to produce documents before a grand jury,\\\" in response to certain grand jury subpoenas duces tecum served on applicant. Preliminarily the order recounts more briefly than shown in the record events leading up to a finding of contempt, viz:\\n\\\"On the 10th day of March, 1983, it was made known to the Court that Victor Marek, a witness brought before the Grand Jury for said Court and County, had refused to produce certain documents in compliance with two Grand Jury subpoenas duces tecum; and it appearing to the Court that said documents were proper to be produced and pertained to the commission of a crime over which said Grand Jury had jurisdiction and then and there under investigation by said Grand Jury; and the said Victor Marek was ordered by the Court to produce said documents, in compliance with said Grand Jury subpoenas duces tecum, before said Grand Jury on the 15th day of March, 1983, at 9:00 a.m. On the 15th day of March, 1983, it was again made known to the Court that the said Victor Marek had refused to produce said documents in compliance with the Order of the Court and in compliance with said Grand Jury subpoenas duces tecum.\\\"\\nThe order then adjudges applicant in contempt; it imposes a fine of one hundred dollars and orders him committed to jail \\\"until he is willing to produce said documents in compliance with the Order of the Court and the said Grand Jury subpoenas duces tecum, said documents being, to-wit: .following which is a numbered list of rather specifically described books, papers and records for all or a part of the year 1982 of one entity named Grain Producers, Inc. and another styled Marek Bros. Grain, a/k/a Marek Bros. Gin & Grain.\\nAt the outset of the March 15 hearing upon being queried by the court, and prior to any announcement, counsel for applicant pointed out that\\n\\\"we have been provided at this time with no formal citation of contempt and, of course, I have had no opportunity to prepare any type of a show cause as to why he should not be held in contempt.\\\"\\nThere followed a lengthy colloquy in which the district attorney contended that Article 20.15, supra, governed the proceeding; the attorney for applicant rejoined that \\\"there have been no specific allegations of how [applicant] has been in contempt of this Court, and he ought to have those served on him or produced for him, and he ought to have an opportunity given to make what defense to those he could;\\\" the court first expressed the view that neither written motion nor notice was required since applicant had been ordered orally by the court to produce the records for the grand jury, adding, however, \\\"It might be;\\\" all continued the discussion in much the same vein until applicant actually voiced his objection to \\\"proceeding to a hearing without . the necessary written documents to give :.. notice of what the State is seeking to have him held in contempt for and . also to the lack of an opportunity to properly prepare a response . to show cause, if any, of why he should be held in contempt;\\\" the court ascertained from the district attorney and the foreman of the grand jury that both desired to proceed without written motion. Accordingly, witnesses were sworn and the hearing got under way.\\nPatently, then, the contempt proceeding was conducted on the theory that Article 20.15, supra, authorizes a district court to find in contempt a witness who refuses to produce any instrument of writing in compliance with a grand jury subpoena. We must reject that theory for the Legislature has rendered it untenable.\\nTwo subpoenas, parts of which applicant is said to have disobeyed, are entitled \\\"Grand Jury Subpoena Duces Tecum for Williamson County Witness.\\\" The only authority we have found for issuance of such a subpoena duces tecum is in Chapter Twenty four, V.A.C.C.P.\\nChapter Twenty four extensively treats matters of subpoena and attachment. As amended by Acts 1981, 67th Leg., p. 503, ch. 209, \\u00a7 1, effective September 1, 1981, Article 24.01 states more clearly that a subpoena may summon a person to appear on a specified day before a grand jury, id., (a)(2)(D). Article 24.15, headed \\\"To secure attendance before grand jury,\\\" partially provides: \\\"At any time before the first day of any term of a district court, the clerk, upon application of the State's attorney, shall issue a subpoena for any witness who resides in the county.\\\" Article 24.02 authorizes issuance of a subpoena duces tecum directing that the witness bring and produce \\\"any instrument or writing or other thing desired as evidence.\\\" A witness who refuses to obey such a subpoena duces te-cum \\u2014 that is, \\\"he refuses without legal cause to produce evidence in his possession which he has been summoned to bring with him and produce,\\\" Article 24.06, \\u00a7 3 \\u2014 may be fined at the discretion of the court not exceeding five hundred dollars in a felony case, Article 24.05. However, the judgment imposing such a fine \\\"shall be conditional; and a citation shall issue to him to show cause . why the same should not be made final,\\\" Article 24.07. Article 24.08 allows a recalcitrant witness thus served with citation a prescribed time to show cause, and upon hearing \\\"an excuse rendered by the witness\\\" the court may enter judgment for all or part of the fine, or may remit the fine altogether, Article 24.09. Indeed, Article 24.15, supra, also limits punishment for failure or refusal to obey a subpoena to a fine not exceeding five hundred dollars. There is simply no provision in the code of criminal procedure for confinement until subpoenaed material is produced before a grand jury.\\nBy its terms Article 20.15, supra, is restricted to the grand jury witness who \\\"refuses to testify.\\\" That one may be fined and committed to jail \\\"until he is willing to testify.\\\" Applicant did appear and testify. Literally taken, Article 20.15 is not applicable to applicant. Given the specific procedures provided by Chapter Twenty four for penalizing one who refuses to produce before a grand jury material sought by a subpoena duces tecum, we are unwilling to extend terms of Article 20.15 to cover the same default. To do so would be to legislate a sanction beyond that which the Legislature has expressly provided for such contemptuous conduct.\\nAccordingly, applicant is entitled to relief from the restraint and detention imposed by the March 16,1983 order holding him in contempt for refusal to produce documents before the grand jury, but not from payment of a fine in the amount of one hundred dollars.\\nTherefore, applicant is discharged from so much of the order of contempt that commits him to the Williamson County Jail \\\"until he is willing to produce said documents in compliance with the Order of the Court and the said Grand Jury subpoenas duces tecum\\\" that are described therein.\\n. \\\"When a witness, brought in any manner before a grand jury, refuses to testify . . the court may compel the witness to answer the question, if it appear to be a proper one, by imposing a fine not exceeding five hundred dollars, and by committing the party to jail until he is willing to testify.\\\"\\n. In Chapter Twenty, \\\"Duties and Powers of the Grand Jury,\\\" Article 20.10 permits \\\"a summons or attachment\\\" for a witness, but says nothing about a subpoena duces tecum. Article 20.11 provides for issuance of a subpoena for a witness in another county, to be served and returned in the manner prescribed in Chapter Twenty four of the code.\\n. The subpoenas duces tecum in our record were signed by the district attorney of Williamson County.\\n. Similarly, a witness from another county who refuses to obey a subpoena is subject to a conditional fine not to exceed five hundred dollars which may be set aside after show cause proceedings. Article 24.22, V.A.C.C.P.\\n.As indicated, the judge of the court tentatively advanced the notion that since on March 10 he had ordered applicant to produce records for the grand jury a \\\"direct contempt\\\" of the court occurred when applicant refused to do so. But the command in subpoenas duces tecum was to bring materials to the grand jury, not to the court. See Ex parte Wilkinson, 641 S.W.2d 927, 933 (Tex.Cr.App.1982) (Concurring Opinion). Thus, the general power and authority of a court to punish for contemptuous conduct under Article 1911a, V.A.C.S. is not implicated here.\\n. In his application for writ of habeas corpus applicant \\\"would show that he produced all records in his and/or [sic] his attorney's possession and cannot comply further... but he has not made that showing. Each motion to quash subpoena duces tecum asserted that \\\"the records requested are no longer in the possession of the Defendant but are currently under the care, custody, and control of his attorney. .\\\" Appearing before the grand jury and being asked as to each item described in a subpoena duces tecum whether he had produced that record, applicant answered, \\\"I have produced everything that I have.\\\"\\nHowever, with respect to his disobeying the subpoena to produce records of Grain Producers, Inc., we express grave doubts that in the capacity in which he has served \\u2014 registered agent of that corporation \\u2014 applicant was even capable of doing that which the subpoena demanded.\"}"
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+"{\"id\": \"9941090\", \"name\": \"Darla SMITHSON, Individually and as Administratrix, Petitioner, v. CESSNA AIRCRAFT COMPANY, Respondent\", \"name_abbreviation\": \"Smithson v. Cessna Aircraft Co.\", \"decision_date\": \"1984-02-15\", \"docket_number\": \"No. C-1344\", \"first_page\": \"439\", \"last_page\": \"446\", \"citations\": \"665 S.W.2d 439\", \"volume\": \"665\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Supreme Court of Texas\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"POPE, C.J., dissents in an opinion in which McGEE, BARROW and CAMPBELL, JJ., join.\", \"parties\": \"Darla SMITHSON, Individually and as Administratrix, Petitioner, v. CESSNA AIRCRAFT COMPANY, Respondent.\", \"head_matter\": \"Darla SMITHSON, Individually and as Administratrix, Petitioner, v. CESSNA AIRCRAFT COMPANY, Respondent.\\nNo. C-1344.\\nSupreme Court of Texas.\\nFeb. 15, 1984.\\nRehearing Denied March 28, 1984.\\nEdwards & Perry, Russell H. McMains, Corpus Christi, Law Offices of Pat Malo-ney, Pat Maloney, Sr., Pat Maloney, George LeGrand, and Jack Pasqual, San Antonio, J. Hadley Edgar, Jr., Lubbock, for petitioner.\\nGraves, Dougherty, Hearon & Moody, Robert J. Hearon, Jr., and John T. Anderson, Austin, for respondent.\", \"word_count\": \"4064\", \"char_count\": \"25430\", \"text\": \"SPEARS, Justice.\\nThe opinion and judgment of this Court dated July 13, 1983 are withdrawn and the following opinion is substituted.\\nDarla Smithson, individually and on behalf of her minor children, brought this wrongful death action against Cessna Aircraft Company (\\\"Cessna\\\") for damages suffered when an airplane crash killed her husband, Benjamin Smithson. The trial court rendered judgment for Mrs. Smithson on a jury verdict of $1,200,000. The court of appeals reversed the trial court's judgment and remanded the cause for a new trial. 632 S.W.2d 375. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.\\nThe principal question presented to this court is whether the trial court abused its discretion when it refused to exclude the deposition testimony of an expert witness whose identity was not disclosed in pre-trial interrogatories as required by Tex.R.Civ.P. 168.\\nBenjamin Smithson and James Parker died in the crash of a Cessna 150 airplane in New Mexico in 1976. At the time of the crash, Smithson was employed as an instructor pilot for Air Plains West, which owned the airplane, and was giving Parker flying lessons.\\nDarla Smithson, individually and on behalf of her minor children, filed suit for wrongful death against Cessna. She claimed that design and manufacturing defects in the legs of the cockpit seats caused the seats to fail during the crash, proximately causing the death of her husband.\\nOne week before the trial began, Cessna moved the court to take judicial notice of certain laws of New Mexico. The court granted Cessna's motion and ruled that New Mexico law would govern the case. Mrs. Smithson claimed to be surprised by this ruling and responded by changing her theory of damages. She contended that her husband's future earnings would have been greater than previously asserted because he would have changed occupations and become a commercial pilot. She offered the testimony of George Baumann, a Braniff Airlines pilot, as evidence of the qualifications necessary to become a commercial pilot and the earning potential of such a pilot. Cessna asked the court to exclude Baumann's testimony. It claimed that the offer of his testimony was an unfair surprise because Mrs. Smithson had not disclosed to Cessna in pre-trial interrogatories that Baumann would be a witness and would give expert testimony. The court refused to exclude the evidence, but ordered Mrs. Smithson to present Baumann for a Friday afternoon deposition. Pursuant to the court's ruling, Cessna and Mrs. Smithson deposed Baumann.\\nWhen the trial resumed the following Monday, Mrs. Smithson did not call Bau-mann to testify before the jury, but instead offered parts of his deposition testimony into evidence. Cessna again objected, reiterating its earlier claim of unfair surprise, and requested that this evidence be excluded, but the court overruled the objection and allowed Mrs. Smithson to read parts of the deposition to the jury.\\nCessna then argued for the right to ask questions and to introduce evidence concerning instances of Mr. Smithson's negligence as a pilot, including his alleged negligence in causing the fatal crash. Cessna contended that Mrs. Smithson had placed her husband's competency as a pilot into issue when she sought to prove he had the qualifications to become a commercial pilot. The trial court ruled,\\nNow, I can see the problem of getting into the fact he was negligent on this particular flight, but if you have other evidence that he was an incompetent pilot and couldn't have been hired by the airlines, it seems to [me] that is admissible . What I am going to do is, rule that you can go into anything that bears on his competency or incompetency, except for the crash in question. So you will be precluded from showing he was negligent in the crash of this \\u2014 that he almost crashed the week before. That is all right.\\nAfter this ruling, Cessna represented to the trial court that it could prove through the deposition of an expert witness that Mr. Smithson's negligence caused the fatal crash. Cessna did not, however, read from this deposition or otherwise attempt to make it a part of the record with a formal bill of exceptions. Moreover, Cessna did not offer any evidence to show Mr. Smithson was negligent during previous flights.\\nAfter all the evidence was presented, special issues were submitted to the jury, which found that the seats in the Cessna 150 had been defectively designed and manufactured and that the defects proximately caused the deaths of Mr. Parker and Mr. Smithson. The jury set Mrs. Smithson's damages at $1,200,000, and the trial court rendered judgment on the verdict for Mrs. Smithson.\\nOn appeal, Cessna argued that the trial court's refusal to exclude Baumann's deposition testimony was an abuse of discretion. Cessna contended that Mrs. Smithson's failure to identify Baumann in response to pre-trial interrogatories created an unfair surprise that could be mitigated only by exclusion of the evidence. Cessna also argued that the trial court should have accepted the offer of deposition testimony to prove that Mr. Smithson negligently caused the crash. The court of appeals agreed with these arguments. It reversed the judgment of the trial court and remanded the case for a new trial.\\nI. ADMISSION OF BAUMANN'S DEPOSITION TESTIMONY\\nBecause this suit was tried in 1980, the 1981 amendments to Tex.R.Civ.P. 168 do not apply. Instead, Rule 168 as amended in 1973 is applicable. The 1973 version of Rule 168 requires supplementation of answers to certain interrogatories, including those seeking disclosure of experts who are expected to be called to testify. The rule does not, however, contain a provision specifying a sanction to be imposed for noncompliance with this supplementation requirement. Texas Employer's Insurance Association v. Thomas, 517 S.W.2d 832, 834 (Tex.Civ.App.\\u2014San Antonio 1975, writ ref'd n.r.e.). Consequently, the imposition of an appropriate sanction for failure to supplement interrogatories in compliance with the rule is within the broad discretion of the trial court. Texas Employers Insurance Association v. Thomas, supra at 834-35; Trubell v. Patten, 582 S.W.2d 606, 610 (Tex.Civ.App.\\u2014 Tyler 1979, no writ). The standard for reviewing the trial court's action is whether this discretion was clearly abused. An appellate court should not substitute its judgment for that of the trial court. Werner v. Miller, 579 S.W.2d 455, 456-57 (Tex.1979); Landry v. Travelers Insurance Company, 458 S.W.2d 649, 651 (Tex.1970); Texas Employers Insurance Association v. Thomas, supra at 834. Similarly, a trial court's refusal to impose a particular sanction can be set aside only upon a showing of a clear abuse of discretion. Tenngasco Gas Gathering Company v. Fischer, 624 S.W.2d 301, 303 (Tex.App.\\u2014Corpus Christi 1981, writ ref'd n.r.e.). To establish a clear abuse of discretion, the complaining party must show that the trial court's action was arbitrary or unreasonable in light of all the circumstances of the particular case. Landry v. Travelers Insurance Company, supra; see also Comment, Imposition and Selection of Sanctions in Texas Pretrial Discovery, 31 Baylor L.Rev. 191, 196 (1979).\\nIn this case, Cessna advances three arguments for its position that admission of Baumann's testimony was reversible error. First, it argues that the 1981 addition to Rule 168, providing for exclusion of expert testimony in this situation, was simply a clarification of the existing rule and that such exclusion was therefore an appropriate sanction when this lawsuit was tried. The question before this court, however, is not whether exclusion of Baumann's testimony was an appropriate sanction, but whether imposition of that sanction was mandatory under the circumstances. Clearly the trial court had the discretion to prevent Baumann from giving evidence. See, e.g., Texas Employers' Insurance Association v. Meyer, 620 S.W.2d 179 (Tex.Civ.App.\\u2014Waco 1981, no writ). Nevertheless, the court decided not to impose that sanction. The decision must stand unless it was a clear abuse of discretion.\\nCessna also argues that even if Mrs. Smithson had called Baumann to testify in front of the jury following his deposition, the applicable Rule 168 would have compelled the trial court to exclude his testimony because of Mrs. Smithson's failure to comply with the requirement for supplementation of interrogatories. Cessna apparently believes that under the 1973 version of Rule 168, nondisclosure of an expert witness until after the trial has begun creates an unfair surprise that can be mitigated only through exclusion of the expert's testimony.\\nWe cannot endorse such an inflexible restriction on the trial court's ability to fulfill its discretionary duties in conducting a fair trial and administering discovery rules. To conclude that there was only one permissible action available to the trial court is virtually to deny the court any discretion in these instances. Smithson may have surprised Cessna when she called an undisclosed expert witness, but the record does not clearly establish that the granting of a continuance or a postponement of the trial would not have sufficiently protected Cessna from any harm due to the surprise. In fact, since the primary basis of Cessna's objection was that the mid-trial disclosure of Baumann did not allow enough time to prepare an adequate defense and to find rebuttal experts, either of these two possibilities might have been sufficient to cure the harm caused by the nondisclosure of the expert. Cessna, however, chose not to request a continuance or postponement even after the trial court refused to bar Baumann's testimony. Instead, Cessna asked only for one of the harshest sanctions available to the court. The failure to present a motion to continue or to postpone the trial severely undermines the assertion that the trial court abused its discretion. See Texas Power & Light Co. v. Holder, 385 S.W.2d 873, 889 (Tex.Civ.App.\\u2014Tyler 1964, writ ref'd n.r. e.); National Surety Corp. v. Rushing, 628 S.W.2d 90, 92 (Tex.App.\\u2014Beaumont 1981, no writ). We hold that under these circumstances the exclusion of Baumann's testimony was not mandatory. Therefore, the trial court did not abuse its discretion.\\nFinally, Cessna argues that the trial court abused its discretion when it allowed Mrs. Smithson to read parts of Baumann's deposition into evidence instead of calling him to testify before the jury. Cessna points out that the trial court's stated purpose in ordering the mid-trial deposition was to permit Cessna to discover the substance of Baumann's upcoming testimony so that effective cross-examination could be prepared.\\nWe agree that the mid-trial deposition, as an attempted remedy of any unfair surprise to Cessna, was not as effective as it would have been if Baumann had subsequently testified in court. However, no one disputes that had Cessna deposed Bau-mann several weeks before the trial began, the deposition testimony would have been admissible despite Baumann's absence from the trial. Consequently, the only serious harm about which Cessna legitimately can complain is the harm it asserted in its argument to the trial court, namely, the lack of time in which to locate expert witnesses to rebut or to qualify Baumann's testimony. Again, a continuance or a postponement might have been sufficient to cure that harm. Of the actions available to the trial court, exclusion of Baumann's testimony may have been the only remedy Cessna desired. It was not, however, the only appropriate means available to the trial court for dealing with Mrs. Smithson's violation of Rule 168. Therefore, the trial court's refusal to exclude the testimony was neither arbitrary nor unreasonable.\\nII. EVIDENCE OF SMITHSON'S NEGLIGENCE AS A PILOT\\nAfter Mrs. Smithson read parts of Bau-mann's deposition testimony to the jury, Cessna asked to be allowed to prove that Mr. Smithson could not have become a commercial pilot because he was not qualified. Specifically, Cessna wanted to introduce evidence showing that Mr. Smithson's pilot error had caused the fatal crash and that he had been negligent during previous flights as well. Cessna now argues that the trial court erroneously prevented Cessna from introducing evidence of Mr. Smithson's acts of pilot negligence.\\nThe trial court ruled that Cessna could offer any evidence showing Mr. Smithson's incompetence as a pilot prior to the crash. Cessna, however, never attempted to prove that Mr. Smithson was negligent on previous flights. As a result, it cannot now complain about the absence of evidence in the record to show this alleged negligence.\\nThe trial court also ruled that no evidence of Mr. Smithson's negligence in causing the crash would be allowed. Evidence is admissible in wrongful death actions to show that the deceased intended to change occupations. Wichita Valley Railroad v. Williams, 6 S.W.2d 439, 442-43 (Tex.Civ.App.\\u2014Eastland 1928, writ ref'd); Burlington-Rock Island Railroad v. Davis, 123 S.W.2d 1002, 1005-06 (Tex.Civ.App.Beaumont 1939, writ dism'd). Once such evidence is introduced, however, any rebuttal evidence tending to show that the deceased was unqualified to pursue the new occupation has probative value. See Burlington-Rock Island Railroad v. Davis. As a result, evidence in this case of Mr. Smithson's negligence as a pilot was relevant to the damages issue.\\nCessna, however, failed to perfect a bill of exceptions containing the excluded evidence, as provided in Tex.R.Civ.P. 372. The absence from the record of a proper bill of exceptions showing what the excluded deposition testimony would have been precludes a determination of whether the testimony would have been inadmissible on some other ground and whether its exclusion was harmless error under Tex.R.Civ.P. 434. For this reason, we have no basis for a finding of reversible error. See Tex.R. Civ.P. 372; Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155, 159 (1945); J. Weingarten, Inc. v. Brockman, 134 Tex. 451, 135 S.W.2d 698, 699 (1940); Biggins v. Gulf, C. & S.F. Ry Co., 102 Tex. 417, 118 S.W. 125, 126 (1909); Harris v. Harris, 605 S.W.2d 684, 686-87 (Tex.Civ.App.\\u2014Houston [1st] 1980, writ ref'd n.r.e.); Donald R. Reedy & Co., Inc. v. Jenkins I. Co., Inc., 597 S.W.2d 62, 63 (Tex.Civ.App.\\u2014Dallas 1980, writ ref d n.r.e.).\\nIn her motion for rehearing, Mrs. Smithson maintains that Cessna has no remaining points of error and that remand to the court of appeals is not necessary. We agree.\\nCessna claims that its point of error challenging the factual sufficiency of the evidence supporting the jury's verdict was not addressed by the court of appeals. In support of this position, Cessna quotes the following language from the opinion of the lower court:\\nThere is scant evidence that Smithson intended to become a commercial airline pilot.... Assuming, however, there was sufficient evidence of that intention, there are several problems concerning Mrs. Smithson's efforts to prove the earnings of a commercial airline pilot.\\n632 S.W.2d at 384. Mrs. Smithson, on the other hand, directs our attention to the following statements by the court of appeals appearing at the conclusion of the opinion:\\nAlthough this Court has treated the major questions in dispute, the parties have other points of error and cross-points. Such other points and cross-points have been considered, all are lacking in merit and all are overruled.\\n632 S.W.2d at 390.\\nThe language Cessna points to was not a holding. The subsequent language, however, expressly held that all points not previously decided were overruled. Courts of Appeals are required by Tex.R.Civ.P. 451 to decide all issues presented. We therefore hold that the court of appeals here overruled Cessna's factual sufficiency point.\\nWe conclude that the court of appeals erroneously reversed the trial court's judgment on the verdict. Accordingly, we reverse the judgment of the court of appeals and affirm that of the trial court.\\nPOPE, C.J., dissents in an opinion in which McGEE, BARROW and CAMPBELL, JJ., join.\\n. Parker's widow, Carolyn Parker Duncan, also filed a wrongful death action against Cessna on behalf of herself and her minor children. The Duncan and the Smithson lawsuits were tried together. Duncan's case raises other legal issues. See Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984).\\n. Mrs. Smithson brought this action under the Texas wrongful death statute, Tex.Rev.Civ.Stat. Ann. art. 4671-4678, which allows recovery for such items as care, maintenance, support, personal services, advice, counsel, and pecuniary loss. See, e.g., Samford v. Duff, 483 S.W.2d 517, 528-29 (Tex.Civ.App.\\u2014Corpus Christi 1972, writ refd n.r.e.). New Mexico, however, seems to permit the decedent's representative in a wrongful death action to recover only pecuniary loss. See N.M.Stat.Ann. \\u00a7 41-2-3 (1953). Consequently, the application of New Mexico law instead of Texas law in this case could have greatly reduced Cessna's potential liability to Mrs. Smithson and her children.\\n. As a result of a 1981 amendment, Rule 168 now provides, in pertinent part,\\n[I]f the party expects to call an expert witness whose name and the subject matter of such witness' testimony has not been previously disclosed in response to an appropriate interrogatory, such answer must be amended to include the name, address, and telephone number of the witness and the substance of the testimony concerning which the witness is expected to testify, as soon as is practical, but in no event less than fourteen (14) days prior to the beginning of the trial except on leave of court. If such amendment is not timely made, the testimony of the witness shall not be admitted in evidence unless the trial court finds that good cause sufficient to require its admission exists.... (emphasis added)\\nThe court of appeals in this case expressed its view that\\nBaumann would not have been permitted to testify had the 1981 amendment of Tex.R. Civ.P. 168 been in effect at time of trial. Part 7(a)(3) of the new rule requires a party calling an expert witness, not disclosed in prior interrogatories, to disclose the witness's identity at least 14 days prior to trial except on leave of court. Failure to make this disclosure bars admission of the expert's testimony unless good cause is shown.\\n632 S.W.2d at 385 (footnote 8).\\nBecause the new rule expressly authorizes exclusion of testimony for noncompliance with the supplementation requirement, trial courts probably do not have the broad discretion they had under the 1973 rule. See Pope & McConni-co, Practicing Law With the 1981 Rules, 32 Baylor L.Rev. 457, 482 (1980). The \\\"good cause'' exception indicates that some discretion may remain in the trial court. See National Surety Corp. v. Rushing, 628 S.W.2d 90, 92 (Tex.App.\\u2014 Beaumont 1981, no writ). However, the 1981 amendment provides that there must be not only a good reason, but one that compels the admission of the testimony. See Spears, The Rules of Civil Procedure: 1981 Changes in Pretrial Discovery, 12 St. Mary's L.J. 633, 650 (1981).\\n. The 1973 version of Rule 168 says only that the court \\\"may . make such orders as are just\\\" when a party fails to comply with its provisions.\\n. In a cross-point, Cessna argues that evidence of Smithson's negligence was admissible because that negligence should have been the basis for a proportionate reduction in damages owed to his estate. This argument is closely related to Cessna's claim for contribution in Duncan v. Cessna, 665 S.W.2d 414 (Tex.1984). Therefore, because it does not affect the outcome of this case, we address that argument in Duncan.\"}"
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+"{\"id\": \"9944268\", \"name\": \"Rene MARTINEZ, Appellant, v. The STATE of Texas, Appellee; and Rudy MARTINEZ, Appellant, v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Martinez v. State\", \"decision_date\": \"1983-05-25\", \"docket_number\": \"Nos. 04-82-00068-CR, 04-82-00078-CR\", \"first_page\": \"630\", \"last_page\": \"638\", \"citations\": \"653 S.W.2d 630\", \"volume\": \"653\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T21:33:08.385592+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before CADENA, C.J., and CANTU and REEVES, JJ.\", \"parties\": \"Rene MARTINEZ, Appellant, v. The STATE of Texas, Appellee. and Rudy MARTINEZ, Appellant, v. The STATE of Texas, Appellee.\", \"head_matter\": \"Rene MARTINEZ, Appellant, v. The STATE of Texas, Appellee. and Rudy MARTINEZ, Appellant, v. The STATE of Texas, Appellee.\\nNos. 04-82-00068-CR, 04-82-00078-CR.\\nCourt of Appeals of Texas, San Antonio.\\nMay 25, 1983.\\nAllen Cazier, San Antonio, for appellant.\\nBill White, Dist. Atty., Susan Reed, Hi-polite Canales, Jr., Robert C. Arellano, James L. Bruner, Asst. Dist. Attys., San Antonio, for appellee.\\nBefore CADENA, C.J., and CANTU and REEVES, JJ.\", \"word_count\": \"4641\", \"char_count\": \"27832\", \"text\": \"OPINION\\nCANTU, Justice.\\nRene and Rudy Martinez, brothers, were separately indicted for the offense of murder. Following a joint trial, a jury found them guilty of the offense as alleged in the indictments. The jury assessed Rene Martinez' (our Cause No. 04-82-00068-CR) punishment at thirty-five (35) years' confinement in the Texas Department of Corrections. Pursuant to his election on punishment, the trial court assessed Rudy Martinez' (our Cause No. 04-82-00078-CR) punishment at sixty-five (65) years' confinement in the Texas Department of Corrections. The trial court appointed different attorneys to represent the brothers on appeal and each appellant brings his separate appeal. Since the appellants were tried together and the convictions arise out of the same transaction, the facts in each case are identical. We therefore will consider both cases together.\\nRudy raises three grounds of error and Rene six. Rene's first two grounds of error raise sufficiency questions and will be dealt with initially. We will, therefore, review all the evidence in the light most favorable to the verdict. Drager v. State, 548 S.W.2d 890 (Tex.Cr.App.1976); Esquivel v. State, 506 S.W.2d 613 (Tex.Cr.App.1974).\\nRandy West, a neighbor of the appellants, testified that on April 6,1980, the day before the murder, he saw two unfamiliar subjects, a male and female, break into appellants' house when they were away for the weekend. After the man and woman finished loading appellants' household goods (a stereo, video-cassette player, etc.) into their car, the couple drove off. West followed the couple to 103 Grantham Street in San Antonio, where he saw them unload appellants' property and take it into the house. The house at 103 Grantham Street was the home of the deceased.\\nOn the day of the murder, West told the appellants who had returned to find their house ransacked, what had occurred. He offered to take the Martinez brothers to the address on Grantham Street where he had seen the burglars take their property. Upon learning where their property had been secreted, the appellants decided to make a foray to 103 Grantham and retrieve their possessions. West further testified that he led appellants to 103 Grantham Street. West rode in a wrecker with Mike Leadford, a witness for the State, and a friend of appellants. When they arrived at 103 Grantham, Leadford and West pulled the wrecker over to the curb in front of the house and watched as the appellants approached, backed their pickup truck into the driveway, and entered the deceased's house.\\nBoth Leadford and West testified that Rene carried a shotgun when he approached the house. Leadford also testified he believed Rudy had what looked like an automatic weapon in his belt. Rudy testified that he was unarmed when he entered the house and the defense introduced Rudy's wallet into evidence to explain why Lead-ford might have believed he had a gun in his belt.\\nLeadford testified that Rudy and Rene approached the front door and after waiting about thirty seconds entered the deceased's residence. Both West and Lead-ford heard one gunshot some thirty seconds after the brothers entered the house. After Rene walked out of the house carrying a video-tape recorder box, Leadford heard two more gunshots in rapid succession. The first and second shots were about four or five minutes apart according to West. West, in contrast to Leadford, stated that Rene was inside the house at the time the second and third shots were heard, but walked out shortly thereafter looking somewhat shaken.\\nWhen Leadford and West saw Rene exit the house, the two of them left the scene in the wrecker and returned to the appellants' house where they were rejoined by appellants about five to ten minutes later. Ap pellants, according to Leadford, had with them some of the property that had previously been taken from their house. Rudy showed Leadford a weapon that had been recovered from the deceased's residence. Leadford saw the appellants make two trips from their pickup truck unloading goods taken from the deceased's house. West testified that he helped appellants unload the pick-up on their return home and that Rudy told him they were still missing a few guns that were taken from their home.\\nRene Martinez did not testify. Rudy was the only witness to testify about what happened inside the house. He testified that when he and Rene learned that their property had been taken to the house on Grant-ham Street, they both went and purchased a shotgun in order to make an effort to retrieve their property. Appellants felt obliged to arm themselves, Rudy testified, because several handguns and a rifle had been among the property taken from their house. With Rene carrying the newly purchased shotgun, and, as Rudy testified, he unarmed, the two approached the door of the deceased's house.\\nRudy testified that he knocked and the deceased opened the door. The deceased then backed away from the door and sat on the edge of the couch in the living room. Rudy began yelling at the deceased inquiring as to the whereabout of his property. The deceased denied having the goods. Rene meanwhile located the stolen stereo in another room. Rudy then saw that deceased had a handgun and leaped across the room and grabbed the deceased's arm causing one shot to be discharged into the floor. The pistol was knocked away and a struggle ensued. The struggle culminated when Rudy shot the deceased twice (with the deceased's own gun) in the back of the head because he thought the deceased was reaching for another weapon. Rudy did not know where Rene was during the struggle. Rudy then wrapped the gun in a towel and joined Rene who was already waiting in the pickup truck. Rudy subsequently threw the murder weapon in the Guadalupe River.\\nThe State's ballistic and forensic experts testified that the evidence at the scene was consistent with Rudy's version of the events except that bloodstains on the wall and floor placed the exact locations of the shooting and the position of the body in different locations than Rudy's testimony.\\nRene urges this court to reverse his conviction because there is no evidence or insufficient evidence to show that he knew of Rudy's intent to kill or that he was criminally culpable under the law of parties. See Tex.Code Crim.Proe. art. 7.02 (Vernon 1974).\\nIn order to determine criminal responsibility under article 7.02, we may look at several factors, some of which were elucidated in Wygal v. State, 555 S.W.2d 465, 468 (Tex.Cr.App.1977):\\nIn determining whether an individual is a party to an offense and bears criminal responsibility therefor, the court may look to events before, during and after the commission of the offense. Ex parte Prior, 540 S.W.2d 723, 727 (Tex.Cr.App.1976); Holloway v. State, 525 S.W.2d 165 (Tex.Cr.App.1975); Bush v. State, 506 S.W.2d 603 (Tex.Cr.App.1974).\\n'An agreement of parties to act together in a common design can seldom be proved by words, but reliance can often be had on the actions of the parties showing an understanding and a common design to do a certain act....' 16 Tex. Jur.2d, \\u00a7 58, p. 171.\\nParticipation in an enterprise may be inferred from the circumstances and need not be shown by direct evidence. Circumstantial evidence may be sufficient to show that one is a party to the offense. Ex parte Prior, supra; Westfall v. State, 375 S.W.2d 911 (Tex.Cr.App.1964).\\nWe believe that there is evidence which, when viewed in the light most favorable to the verdict, supports the conviction of Rene Martinez as a party to the offense. There obviously was some kind of an agreement to act together as the brothers armed themselves to go to the scene of the eventual murder. The contention that they armed themselves in furtherance of an agreement only to get their property back could or could not be believed by the jury. Certainly the shotgun which Rene carried might lead reasonable people to believe that he intended to use deadly force to regain their possessions.\\nRene's demeanor after the act could also be considered by the jury as evidence of a prior agreement to aid in the murder. Barron v. State, 566 S.W.2d 929 (Tex.Cr.App.1978). Here, both appellants apparently proceeded to load their property into the truck after the deceased was shot. Although Leadford and Rudy testified that when the second series of shots were heard Rene had only taken one trip to the car carrying either the stereo speakers or the video player, yet when they arrived back at their residence testimony indicated that they had to make two trips to the house to unload the truck. The jury could also have considered the appellants' subsequent disposal of the murder weapon to infer that Rene Martinez with the intent to promote the commission of the offense encouraged and aided Rudy Martinez to commit the offense. Considering Rene's armed presence on the scene, along with the other facts of the case, see Ashabranner v. State, 557 S.W.2d 774 (Tex.Cr.App.1977), we find there is evidence that would allow a jury to find Rene guilty as a party to the offense and that the evidence is sufficient to support a conviction.\\nIn his third ground of error Rene complains that the charge permits a conviction upon a theory not alleged in the indictment because the indictment did not allege that Rene acted as a party to the offense. This same contention was rejected in Seals v. State, 634 S.W.2d 899 (Tex.App.\\u2014San Antonio 1982, no pet.), on the basis of Pitts v. State, 569 S.W.2d 898 (Tex.Cr.App.1978). Rene's second ground of error is overruled.\\nRene contends in his ground of error number six that the court erred in not submitting his requested charge on independent impulse. The requested charge reads:\\nIf you believe from the evidence that Rudy Martinez killed Gerald Johnston upon an independent impulse and not in pursuance of an agreement between the two to kill Gerald Johnston, or if you have a reasonable doubt thereof, then you will acquit the defendant Rene Martinez and by your verdict say not guilty.\\nThe charge actually submitted reads,\\nTherefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Rene Martinez, together with Rudy Martinez as a party, in Bexar County, Texas, on or about the 7th day of April, A.D., 1980, did with intent to promote or assist Rudy Martinez in the commission of the offense, intentionally or knowingly cause the death of an individual, to-wit: Gerald Johnston, by shooting Gerald Johnston with a gun, by soliciting, encouraging, directing, aiding or attempting to aid Rudy Martinez to commit such offense, you will find the defendant, Rene Martinez guilty of murder.\\nIf you do not so believe, or if you have a reasonable doubt thereof, you will find the defendant, Rene Martinez not guilty of murder and next consider whether the defendant, Rene Martinez is guilty of voluntary manslaughter.\\nThe effect of the two paragraphs taken together are at least as beneficial to Rene as the requested charge. Simmons v. State, 594 S.W.2d 760 (Tex.Cr.App.1980), death penalty vacated on other grounds, 453 U.S. 902, 101 S.Ct. 3134, 69 L.Ed.2d 988, on remand, 623 S.W.2d 416; LeDuc v. State, 593 S.W.2d 678 (Tex.Cr.App.1979).\\nBy his fifth ground of error Rene alleges that the court erred in not submitting a circumstantial evidence charge. This is no longer error. Hankins v. State, 646 S.W.2d 191 (Tex.Crim.App.1983).\\nIn his second ground of error, Rudy alleges that the trial court erred in charging, over objection, on provoking the difficulty because the charge is not supported by the evidence. The State correctly points out that the objection to the charge lodged below was \\\"the defendant objects to such instruction as amounting to a comment on the weight of the evidence.\\\" The ground of error raised in the brief does not comport with the objection raised below. No error is preserved. Debolt v. State, 604 S.W.2d 164 (Tex.Cr.App.1980); Daniels v. State, 600 S.W.2d 813 (Tex.Cr.App.1980). Although we find error was not preserved for review, a discussion of the charge as it relates to other error properly preserved for review follows infra.\\nBy his third ground of error Rudy contends that the court committed fundamental error in not submitting separate jury charges. Fundamental error in the jury charge must be calculated to injure the rights and prevent the appellant from receiving a fair and impartial trial. See Tex. Code Crim.Proc.Ann. art. 36.15 (Vernon 1981); Doyle v. State, 631 S.W.2d 732 (Tex.Cr.App.1982). See also Garrett v. State, 624 S.W.2d 953 (Tex.Cr.App.1983). When such a ground is raised, we must review the charge as a whole. White v. State, 610 S.W.2d 504 (Tex.Cr.App.1981).\\nIn reviewing the charge as a whole the following facts come to light.\\nThe majority of the paragraphs are explanatory of the law. The more important ones address self-defense (both Rudy and Rene), define verbal provocation, abandoning the encounter, etc. In the application of the law to the facts the jury is charged that if they find that Rene acted as a party with Rudy in intentionally and knowingly causing Gerald Johnson's death, Rene would be guilty of murder. The same form charge is given for voluntary and involuntary manslaughter.\\nSeparate paragraphs are then given applying the law to the facts in Rudy's case.\\nWe cannot see how the application of the law to the facts would be submitted differently if separate charges were given in this case. In any case, we cannot say that the form of the charge was calculated to injure the rights of the appellant.\\nAs to Rudy's argument that the form of the charge on Rene commented on the weight of the evidence and that the court should not have given a self-defense charge, Tex.Code Crim.Proc.Ann. art. 36.15 (Vernon 1981), precludes our review thereof absent objection. Manry v. State, 621 S.W.2d 619 (Tex.Cr.App.1981).\\nRudy's first ground of error and Rene's fourth ground of error assert that the trial court erred in the denial of a specially requested charge on the right to carry arms to the scene of the difficulty.\\nThe trial court instructed the jury on self-defense under Tex.Penal Code \\u00a7 9.31 (Vernon 1974) as it applied to both appellants. It then followed the self-defense instructions with the following instruction as to each appellant:\\nYou are further instructed that if you believe from the evidence beyond a reasonable doubt that the defendant, Rudy Martinez [Rene Martinez], sought the meeting with deceased for the purpose of slaying deceased, and having found him did some act, or used some language, or did both with intent to produce the occasion and bring on the difficulty, and that the words and conduct of defendant, if any, under the circumstances, were reasonably calculated to provoke a difficulty, and did, and that on such account the deceased attacked him, and he then killed deceased in pursuance of his original design, if any there was, then the defendant cannot justify the killing on the ground of self-defense, but such killing would be murder, or voluntary manslaughter or involuntary manslaughter; but if you believe from the evidence that defendant had no such purpose in seeking the fatal meeting, or having it, did no act reasonably calculated to provoke the difficulty, was attacked, or there was an attempted attack, by the deceased with deadly force, and shot deceased, or if you have a reasonable doubt thereof, then defendant's right of self-defense would not be forfeited, and he could defend himself in accordance with the rules heretofore set forth in connection with the law of self-defense.\\nThe instruction is taken verbatim from McClung, Jury Charges for Texas Criminal Practice, p. 275 (rev. ed. 1979), as adapted from Cain v. State, 154 Tex.Cr.R. 284, 226 S.W.2d 640 (1950); cf. charge in Norwood v. State, 135 Tex.Cr.R. 406, 120 S.W.2d 806 (1938).\\nBoth appellants timely objected to the failure of the court's charge to include an instruction on the right to bring arms to the scene of the difficulty. A requested instruction was denied as to each appellant. The proposed instruction was as follows:\\nYou are further instructed that the right of self-defense is not abridged by the fact that one carries arms to the scene of the difficulty and if you find that the defendants Rene Martinez and Rudy Martinez, or either of them, armed themselves, if they did, when they went to the house of Gerald Johnston, without intending to provoke a difficulty, but merely to inquire about or recover their property, and knowing or having a reasonable belief that Gerald Johnston was armed, the defendant's right of self-defense was not abridged and they had the right of self-defense under the above instructions.\\nThe State's reply in each case consists of attempts to distinguish cases relied upon by appellants. Essentially the State argues that appellants did not know the deceased prior to the shooting and had no reason to fear him; that there was no longstanding quarrel, no communicated threats, no indication or knowledge that the deceased was a violent or dangerous person, nor any knowledge that deceased would be home.\\nThe State further argues that appellants did not go to seek an explanation of any prior difficulty and that there is no showing that appellants ever had any prior contact with the deceased. The record does not totally support the State's position.\\nWhen told by West that their house had been burglarized by particularly described persons, appellants immediately recognized the descriptions. It was Rudy's position that the house to which West was directing them contained various weapons belonging to them and taken during the burglary. A shotgun was purchased and taken to the Grantham Street residence in anticipation of a need to defend themselves from a possible use of firearms by the occupant or occupants of the house. Admittedly Rudy denied that he went armed to the Grantham Street residence, however, other evidence indicated that he was armed at the time. The jury was justified in concluding that he too was armed from the evidence adduced. We think Rudy was thus not precluded from insisting on an instruction bearing on his right to carry arms to the scene of the difficulty. Additionally, since both convictions depended upon the law of parties, the act by Rene of being armed is likewise attributable to Rudy as a party because he knew Rene was armed and admittedly acquiesced in the act. Any inference to be drawn from such act against Rene would also apply to Rudy.\\nUnder the facts elicited the only testimony regarding the incidents leading up to the shooting came from appellant Rudy Martinez. His testimony paints the deceased as the initial aggressor. The State's theory was that appellants provoked the difficulty by arming themselves and shooting the deceased without justification. No direct evidence in support of that theory was presented, however, and appellants' position essentially became a credibility issue for the jury to be determined upon an instruction on self-defense unburdened by any limitation.\\nIf not called for by the facts, a charge on provoking the difficulty constitutes an unwarranted limitation on the right of self-defense. Dirck v. State, 579 S.W.2d 198 (Tex.Cr.App.1979) (on rehearing en banc); 29 Tex.Jur.2d, Homicide, \\u00a7 327, p. 635.\\nIt is also well settled that a charge on provoking the difficulty should not be given where the only question for determination is who made the first attack. Walker v. State, 150 Tex.Cr.R. 421, 201 S.W.2d 823 (1947); Howie v. State, 119 Tex.Cr.R. 17, 43 S.W.2d 594 (1931); Dugan v. State, 86 Tex.Cr.R. 130, 216 S.W. 161 (1919); Red v. State, 39 Tex.Cr.R. 414, 46 S.W. 408 (1898); Phillips v. State, Tex.Cr.App., 36 S.W. 86, 36 S.W. 441 (on rehearing) (1896). Stated otherwise, the issue of provoking the difficulty does not arise from evidence which is merely conflicting as to who made the first attack. Dugan v. State, supra.\\nIf the State's case is an unprovoked homicide and defendant's case is perfect self-defense, the issue of provoking the difficulty is not in the case; beginning a difficulty is not provoking it. Adkison v. State, 116 Tex.Cr.R. 489, 32 S.W.2d 462 (1930); Cline v. State, 33 Tex.Cr.R. 482, 27 S.W. 128 (1894).\\nThe Court of Criminal Appeals has consistently held that unless the court's charge places some limitation upon the accused's right of self-defense, such as by charging on provoking the difficulty or otherwise, a charge on the right to carry arms is not necessary. Williams v. State, 580 S.W.2d 361 (Tex.Cr.App.1979); Watson v. State, 513 S.W.2d 577 (Tex.Cr.App.1974); De La Cruz v. State, 490 S.W.2d 839 (Tex.Cr.App. 1973); Cavazos v. State, 423 S.W.2d 582 (Tex.Cr.App.1968); Donaldson v. State, 372 S.W.2d 339 (Tex.Cr.App.1963); Pierson v. State, 160 Tex.Cr.R. 567, 272 S.W.2d 901 (1954); 4 Branch's Ann. Penal Code, 2d ed., \\u00a7 2129, p. 453.\\nOn the other hand, it is equally well settled that if the court's instruction limits the accused's right of self-defense by a charge on provoking the difficulty, then the jury should be advised in a proper instruction under the facts that the accused's right of self-defense would not necessarily be abridged by the fact that he carried arms to the scene of the difficulty if such instruction is supported by the evidence. Young v. State, 530 S.W.2d 120 (Tex.Cr.App.1975); Williams v. State, supra; Porter v. State, 152 Tex.Cr.R. 540, 215 S.W.2d 889 (1948); Hunter v. State, 137 Tex.Cr.R. 289, 128 S.W.2d 1176 (1939); Harris v. State, 116 Tex.Cr.R. 426, 32 S.W.2d 459 (1930); Allen v. State, 102 Tex.Cr.R. 441, 278 S.W. 201 (1925); Frazier v. State, 100 Tex.Cr.R. 157, 272 S.W. 454 (1925).\\nResolution of the issue on appeal whether the trial court's action constitutes reversible error turns on whether the evidence raised the issue. The issue of whether the charge on carrying arms should have been given depends on what testimony was presented not what is or is not believed as to the truth of that testimony. Williams v. State, supra. We think Rudy's testimony raised evidence requiring a charge on carrying arms.\\nThe language in Thomas v. State, Tex.Cr. App., 51 S.W. 1109 (1899) is still appropriate.\\nIt is not a violation of law to seek a party for the purpose of provoking a difficulty. The offense is provoking the difficulty. We have held that a party can arm himself, and go to where a person is, but, after reaching there, if he did not provoke the difficulty, or do some act or make some statement reasonably calculated to provoke the difficulty, he could not be convicted of provoking the difficulty. In other words, if the defendant sought deceased for the purpose of having a friendly talk, and in the course of the conversation, in which he was endeavoring to settle the previous trouble, a difficulty arises between defendant and deceased, the mere fact that he sought deceased for the purpose of settling the previous trouble would not be evidence of the fact that he provoked the difficulty. On the other hand, if appellant sought deceased for the purpose of having a friendly talk, and then and there provoked the difficulty, the law of provoking the difficulty would apply.\\nSee also Airhart v. State, 40 Tex.Cr.R. 470, 51 S.W. 214 (1899); Cartwright v. State, 14 Tex.App. 486, 502 (1883); Jones v. State, 149 Tex.Cr.R. 119, 192 S.W.2d 155 (1946); Stanley v. State, 625 S.W.2d 320 (Tex.Cr.App.1982); Mason v. State, 88 Tex.Cr.R. 642, 228 S.W. 952 (1921).\\nWe think that appellants were not entirely free from blame or wrongdoing in the matter. Nevertheless we fail to find evidence in the record that appellants did any act with intent to produce the occasion and reasonably calculated to provoke the very difficulty in question. Crow v. State, 48 Tex.Cr.R. 419, 88 S.W. 814 (1905). If the act was done in self-defense, the law does not concern itself with other motives. Shumate v. State, 38 Tex.Cr.R. 266, 42 S.W. 600 (1897).\\nAs in Stanley v. State, supra, only the accused testified as to what took place at the scene of the shooting. And while every circumstance preceding the homicide indicates that appellants went prepared to take the life of the occupant at 103 Grantham Street, we are not permitted to speculate as to what actually occurred. It is not for this court to concern itself with the credibility of appellant's testimony or whether it will appeal to another jury upon retrial.\\nA charge on provoking the difficulty is applicable in those cases in which the first attack is made by the deceased, but is induced by words and conduct of the accused reasonably calculated and intended to provoke an attack which may be used by him as an occasion for doing harm to his adversary. Tave v. State, 620 S.W.2d 604 (Tex.Cr.App.1981).\\nIn every case where the acts and conduct of the accused were the cause of an attack upon him, the issue of whether they were reasonably calculated to provoke the difficulty is a question of fact for the determination of the jury under appropriate instructions from the court. Garcia v. State, 522 S.W.2d 203 (Tex.Cr.App.1975). But in the instant case there is no evidence of any acts and conduct of appellants to raise a factual issue for jury determination. We think provoking the difficulty was not in the case, but even where the evidence is questionable, if the self-defense charge is restricted by a charge on provoking the difficulty, appellants are entitled to have the jury instructed as well on the right to carry arms to the scene to protect themselves against possible unlawful attack against them while they attempt to retrieve their property. Cf. Williams v. State, supra.\\nAppellants had a right to arm themselves if they feared trouble, or in anticipation of trouble, with deceased (or any occupant of the Grantham Street residence), and if self-defense was an issue the court was required to charge on their right. Mitchell v. State, 50 Tex.Cr.R. 180, 181, 96 S.W. 43 (1906); Keith v. State, 50 Tex.Cr.R. 63, 94 S.W. 1044 (1906); Nix v. State, 45 Tex.Cr.R. 504, 78 S.W. 227 (1904); Borden v. State, 42 Tex.Cr.R. 648, 62 S.W. 1064 (1901).\\nBecause the trial court burdened appellants' self-defense instruction with a charge on provoking the difficulty, we hold that it reversibly erred in refusing to grant the specially requested instruction on the right to carry arms.\\nThe State urges that we should, nevertheless, overrule a long line of cases beginning with Shannon v. State, 35 Tex.Cr.R. 2, 28 S.W. 687, 60 Am.St.Rep. 17 (1894), because the law on the right to arm oneself and seek explanation no longer comports with contemporary times. We are urged to adopt the dissenting opinion in Gassett v. State, supra.\\nOnly recently in Young v. State, supra, and in Williams v. State, supra, the Court of Criminal Appeals refused to do what we are asked to do. We are satisfied that the refusal by that court constitutes reaffir-mance of the continued vitality of the rule. We defer to that court the task of reevaluating the wisdom of the rule at some later date.\\nThe judgments of the trial court are reversed and the causes are remanded.\\n. West died prior to trial and his examining trial testimony was introduced in the trial on the merits.\\n. An unlawful intent alone would not abridge the right of self-defense if appellants did not provoke difficulty by words or acts. Gant v. State, 55 Tex.Cr.R. 284, 292, 116 S.W. 801 (1909).\"}"
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+"{\"id\": \"9945156\", \"name\": \"Clarence Lee PARKS, Jr., Appellant, v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Parks v. State\", \"decision_date\": \"1984-02-02\", \"docket_number\": \"No. 01-83-0309-CR\", \"first_page\": \"597\", \"last_page\": \"602\", \"citations\": \"666 S.W.2d 597\", \"volume\": \"666\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T01:06:01.457483+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before EVANS, C.J., and DOYLE and LEVY, JJ.\", \"parties\": \"Clarence Lee PARKS, Jr., Appellant, v. The STATE of Texas, Appellee.\", \"head_matter\": \"Clarence Lee PARKS, Jr., Appellant, v. The STATE of Texas, Appellee.\\nNo. 01-83-0309-CR.\\nCourt of Appeals of Texas, Houston (1st Dist.).\\nFeb. 2, 1984.\\nDavid Ball, Jr., Houston, for appellant.\\nWinston E. Cochran, Jr., Houston, for appellee.\\nBefore EVANS, C.J., and DOYLE and LEVY, JJ.\", \"word_count\": \"2900\", \"char_count\": \"17967\", \"text\": \"OPINION\\nEVANS, Chief Justice.\\nA jury convicted the appellant of driving while intoxicated, and the court assessed his punishment at 90 days confinement, probated, and a $350 fine.\\nIn three grounds of error the appellant contends that the trial court committed reversible error in allowing the State, over appellant's objection, to elicit testimony that appellant had been offered and had refused to submit to a chemical breath test, and that in the absence of such testimony, the evidence is insufficient to support the conviction.\\nTwo highway patrol officers testified that they first observed the appellant driving southbound on State Highway 6 about 8:15 p.m. on October 21, 1982. The officers, driving northbound on the highway, said that as they approached appellant's vehicle, it appeared to be traveling at an excessive rate of speed. Their radar indicated a speed of 71 m.p.h. The officers made a u-turn and they followed the appel lant's vehicle for approximately one-quarter mile. During- that time, they observed appellant's vehicle weave across the lines marking off the highway lanes. When the officers were within ten to fifteen yards of the appellant's vehicle, they turned on their overhead lights, but the appellant's vehicle continued on for about one-half mile before stopping.\\nOne of the officers asked the appellant to step out and to approach the rear of his vehicle. As the appellant walked to the rear, both officers noticed that he was taking \\\"very deliberate steps,\\\" indicating the possibility of intoxication. The appellant was asked for his driver's license, and he opened his wallet in an attempt to produce it. However, the officer noted, appellant passed over his license several times, and eventually handed the officer a Gulf Qil Company credit card. When the officer advised appellant of the mistake, he then located his license and also produced an identification card issued by the Clerk of the Texas Supreme Court, reflecting his status as a court reporter. According to the officers' testimony, the appellant's eyes were \\\"glassy and glazed over\\\" and emanating from his breath was a \\\"strong odor\\\" of alcoholic beverage. The officers testified that they did not notice anything unusual about appellant's manner of speech, but both officers stated that, in their opinion, the appellant was intoxicated.\\nThe appellant denied that he was intoxicated, and said that he had met his wife at the U.S. Bar & Grill in Houston about 4:30 p.m. that afternoon. He testified that he had only two Irish coffees at the restaurant and that while there, he ate some seafood and had a number of cups of plain coffee. Appellant's wife confirmed his testimony as to the number of drinks he had at the restaurant, and she also testified that an enduring garlic odor also resulted from the type of meal he had consumed that evening. A friend of the appellant and his wife, and two employees at the restaurant, also confirmed the appellant's testimony concerning the number of drinks he had consumed, and all defense witnesses stated that, in their opinion, the appellant was not intoxicated when he left the restaurant. The appellant explained his mistake in handing the officer a Gulf credit card, saying that a few minutes prior to his arrest, he had charged gasoline on his Gulf credit card and then placed the card in his wallet at the place where he usually kept his driver's license.\\nThe State did not mention the appellant's refusal to take a breath test during its direct examination of the first officer to testify. On cross-examination, appellant's counsel made a request to see the documents to which the officer had been referring during the course of giving his testimony. With regard to these documents, he asked the officer, \\\"What is the yellow sheet?\\\" The officer replied, \\\"It's a breath test refusal.\\\"\\nThe second arresting officer testified that appellant had not been read his Miranda rights. He additionally testified, over appellant's objections, that appellant was advised when arrested that he would be asked to take a breath test, and that if he refused he could lose his license for a year. The witness stated that to his knowledge, appellant had not taken the breath test.\\nThe record indicates that appellant himself opened the door to the State's proof that he did, in fact, refuse to take the test. See, Ashford v. State, 658 S.W.2d 216 (Tex. App. \\u2014 Texarkana 1983, no writ); Sutton v. State, 548 S.W.2d 720 (Tex.Cr.App.1977). However, we need not decide the case on that basis because we hold that evidence of such refusal was admissible as part of the State's direct evidence.\\nIn South Dakota v. Neville, \\u2014 U.S. -, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the United States Supreme Court held that a suspect's \\\"refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination.\\\" Two Texas Courts of Appeals decisions, following the U.S. Supreme Court's holding in South Dakota v. Neville, held that evi dence of a defendant's refusal to submit to a blood-alcohol test, after a lawful request by a police officer, is admissible at trial when intoxication is an issue. Ashford v. State, supra; Gressett v. State, No. 05-82-0493-CR (Tex.App. \\u2014 Dallas, July 14, 1983, no writ) (not yet reported). In those cases, the defendant contended, as does the appellant here, that notwithstanding the U.S. Supreme Court's decision in Neville, the constitution and laws of Texas still prohibit evidence of a defendant's refusal to take a breath test in a driving while intoxicated trial. In support of this position, the appellant points out that the state statute in Neville specifically authorized the admission of the defendant's refusal, while the Texas statutes contain no such provision. Thus, the appellant argues, the admission of such evidence is precluded under our state laws as decided in Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.1977); and Cardwell v. State, 156 Tex.Cr.R. 457, 243 S.W.2d 702 (1951). The underlying basis of the appellant's argument in this respect is that the admission of such evidence violates the provisions of Tex.Crim.Proc.Code Ann. art. 38.22, sec. 3 (Vernon's Supp.1982-83) which prohibits evidence of oral statements or other communicative acts if made while under arrest that are incriminating in nature.\\nWe conclude, as did the Texar-kana Court of Appeals in Ashford, and the Dallas Court of Appeals in Gressett, that the applicable provisions of art. 38.22 are substantially the same in scope as the Fifth Amendment right against incrimination, and that the provisions of the Texas Constitution and statute provide no broader protection in this respect than the provisions of the U.S. Constitution. Thus, following the rationale of these decisions, we hold that the evidence of the appellant's refusal to submit to a breath test was admissible, and that Miranda and art. 38.22 warnings were not required to be given the appellant before asking if he would submit to a breath test.\\nThe trial court's judgment is affirmed.\\nDOYLE, J., participating.\\nLEVY, J., dissenting.\"}"
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+"{\"id\": \"9947107\", \"name\": \"LONE STAR GAS COMPANY, Appellant, v. Glenn H. McCARTHY et al., Appellee\", \"name_abbreviation\": \"Lone Star Gas Co. v. McCarthy\", \"decision_date\": \"1980-07-17\", \"docket_number\": \"No. 17678\", \"first_page\": \"653\", \"last_page\": \"657\", \"citations\": \"605 S.W.2d 653\", \"volume\": \"605\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-11T01:03:40.854005+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WARREN, PEDEN and EVANS, JJ.\", \"parties\": \"LONE STAR GAS COMPANY, Appellant, v. Glenn H. McCARTHY et al., Appellee.\", \"head_matter\": \"LONE STAR GAS COMPANY, Appellant, v. Glenn H. McCARTHY et al., Appellee.\\nNo. 17678.\\nCourt of Civil Appeals of Texas, Houston (1st Dist.).\\nJuly 17, 1980.\\nRehearing Denied Sept. 4, 1980.\\nTaylor & Norwood, E. R. Norwood, Liberty, for appellant.\\nFulbright & Jaworski, M. W. Parse, Jr., Houston, for appellees.\\nBefore WARREN, PEDEN and EVANS, JJ.\", \"word_count\": \"1681\", \"char_count\": \"10123\", \"text\": \"WARREN, Justice.\\nThis is an appeal from a judgment, rendered after a non-jury trial, awarding ap-pellees damages for a breach of contract by appellant and denying appellant recovery on its counterclaim.\\nThe material facts are undisputed. The only question is whether under the gas sales contract appellant was entitled to be reimbursed for gas payments made under a pre-connection \\\"take or pay\\\" provision when it was unable to make up the gas in kind because of the depletion of the gas reservoir.\\nIn the summer of 1972, appellees discovered a gas field in Montgomery and Grimes Counties. An \\\"open flow test\\\" indicated that the discovery was significant and that the reservoir would furnish gas for a long time.\\nOn October 24, 1972, the parties entered into a gas sales contract which contained two \\\"take or pay\\\" provisions pertaining to the periods both before and after the well was connected to the pipeline. Both the \\\"pre-connection\\\" and the \\\"post connection\\\" clauses required that appellant (Buyer) purchase at least 80% of the gas available or pay for that amount. The pre-connection liability to take or pay was to begin 45 days after October 24, 1972. However, the Buyer had the right to \\\"make up\\\" or take, within the following two year period, gas it had paid for, but which it had not taken. The well was connected to the pipeline on June 4, 1973, approximately six months after the obligation to take or pay began.\\nAppellant began paying for the available gas in December of 1972 and paid each month under the term of the contract until May 1, 1973. It did not pay for the month of May and the first three days in June of 1973. Appellees, as they were required to do under the contract, operated the wells at 100% capacity and appellant took the amount it was obligated to take and also began to take make up gas for the pre-con-nection payments. In February of 1975, the reservoir was depleted before appellant had made up in kind a quantity equal to its pre-connection payments.\\nAppellees sued for the sum of $139,905.56, claiming they were entitled to this amount under the pre-connection take or pay clause for the month of May and for the first 3 days of June, 1973. Appellant does not contest the fact that this amount was owed under the term of the contract, but contends that it was \\\"washed out\\\" because appellees owed appellant for gas payments which appellant was unable to recoup in kind.\\nThe portions of the contract pertinent to our decision follow:\\nThe \\\"Take or Pay\\\" Provision\\n\\\". . Buyer agrees to take gas or pay for it if available and not taken, as outlined in Article IX, commencing forty-five (45) days after the date of the acknowledgment of the official signatory for Buyer on this contract.\\\"\\nArticle IX\\nThe \\\"Pre Connection\\\" Paragraph\\n\\\"If, during the period commencing forty-five (45) days after acknowledgment of the official signatory for Buyer and ending upon the date of the initial pipeline connection as provided in this contract, Buyer shall fail to purchase, if available under the terms of this contract, a quantity of gas equal to eighty percent (80%) of Seller's delivery capacity at the point of delivery and as determined by the initial test of Seller's delivery capacity here-under, then Buyer shall pay Seller for such quantity whether taken or not. Any such payment by Buyer shall be made on or before the 25th day of each calendar month next succeeding Buyer's fiscal month in which such deficiency occurred; provided, however, Buyer shall be entitled to makeup any such deficiency as provided in this Article IX.\\\"\\nThe \\\"Post Connection\\\" Paragraph\\n\\\"In the event Buyer should fail to purchase under this contract during any annual period, or partial annual period, of the term hereof a quantity of gas required to be purchased hereunder subject to and pursuant to the provisions of this contract, then Seller may within four (4) months following the end of such annual period notify Buyer regarding Buyer's failure to purchase the Contract Volume of gas under this contract, accompanying such notice with an itemized statement giving full information with respect to such deficiency and the amount due therefor at the price prevailing under this contract during such annual period, or partial annual period, and Buyer shall within sixty (60) days after receipt of such notice pay Seller the amount due by reason of such deficiency; provided, however, that Buyer shall have the right during the two (2) annual periods following the annual or partial annual period in which such deficiency occurred to receive from Seller without charge therefor all or part of the amount of gas which such deficiency payment would purchase at the price or prices per one thousand (1,000) cubic feet in effect under this contract during the annual period, or partial annual period in which such makeup is received; provided further, that no makeup gas may be taken during any annual period for the purpose of satisfying any prior deficiency until the Contract Volume for such annual period has been received by Buyer; and provided still further that this provision shall not operate to extend the terms of this con tract or to give Buyer the right to take makeup gas after this contract has terminated. If any amount of such payment or payments cannot be made up because of Seller's lack of ability to deliver gas, then Seller shall repay such amount to Buyer.\\\"\\nAlthough the contract has different provisions regarding the payment for gas not taken during the post connection and pre-connection periods, it only refers to the post connection paragraph regarding the Buyer's right to make up pre-connection deficiencies. No specific reference is made to Buyer's right to be reimbursed for pre-connection payments.\\nIn five points of error, appellant alleges that the trial court erred in finding that: (1) the term \\\"such payment or payments\\\" in the repayment clause refers only to post connection take or pay, deficiencies; (2) the phrase \\\"Buyer shall be entitled to make up such deficiencies as provided in Article IX\\\" incorporates only the in kind makeup gas provisions of Article IX; (3) the term \\\"lack of ability to deliver gas\\\" means lack of ability to deliver gas which appellant had a make up right; (4) appellant is liable for $139,905.56 for pre connection deficiencies plus prejudgment and postjudgment interest; and, (5) appellees had no obligation to repay appellant for the pre connection deficiencies which appellant was unable to make up in kind.\\nAs stated above, the pre connection paragraph refers to the phrase \\\"make up as provided in Article IX.\\\" The question for our determination is whether make up includes reimbursement.\\nThe term \\\"make up gas,\\\" as used in the oil and gas industry, means \\\"that which is taken in succeeding years, having been paid for previously under a take or pay clause in a gas purchase contract. The contract will normally specify the number of years after payment in which purchaser can take delivery of make up gas without payment a second time.\\\" Williams and Meyers, Manual of Oil and Gas Terms, p. 331 (1974).\\nAppellant contends that the term \\\"make up\\\" should be construed broadly to embrace the broader definition of setting an account in order. We disagree. In the gas sales industry \\\"make up\\\" is a word of art. Both parties had substantial experience in the oil and gas industry. In construing the contract the courts give consideration to the meaning which is attributed to the term in the industry. See Emmond's Inc. v. Obermiller, 526 S.W.2d 562 (Tex.Civ.App.1975, writ ref'd n.r.e.); Fox v. Gallo, 428 S.W.2d 127 (Tex.Civ.App.1968, writ ref'd n.r.e.). Moreover, the parties in Article IX used the term \\\"make up\\\" as it is commonly construed in the industry by setting out appellant's right to take gas to make up for deficiency payments. Appellant's right to reimbursement only arose if it could not make up, by in kind takes, the deficiency payments. Thus two rights are stated, the make up right and the reimbursement right.\\nAppellant further contends that the reasonableness of appellees' interpretation should be compared with its interpretation to determine the probability that reasonable businessmen, under the same circumstances, would enter into such an agreement. In support of this approach appellant cites Eastman Oil Well Survey Co. v. Hamil, 416 S.W.2d 597 (Tex.Civ.App.-Houston 1967, writ ref'd n.r.e.) and other cases where the courts looked at the surrounding circumstances and the objectives of the parties to determine the reasonableness of the construction of the contract. Appellant contends that a construction disallowing it to receive reimbursement is inconsistent with a position that reasonable businessmen would take upon entering into a contract. In a usual buy and sell situation this is probably so, but in our case, at the time the contract was signed, both parties were of the opinion, which was justified by the open flow test, that the reservoir was large and that there would not be a problem in recouping the pre-connection deficiencies. In addition, we note that under the normal take or pay clause, the buyer takes a risk that it might not be able to make up a deficiency within the make-up period.\\nThus, if the gas is not made-up, then the buyer effectively purchases the gas a second time.\\nThe clause allowing reimbursement follows the provision concerning the making up of the deficiencies during annual or partial annual periods, which can not be construed to encompass the pre-connection period under the contract. Had the parties intended for the reimbursement clause to apply to pre-connection deficiencies, it would have been simple to state this, or to insert this short clause following the pre-connection, make up paragraph.\\nThe judgment is affirmed.\"}"
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+"{\"id\": \"9959907\", \"name\": \"Billy Clyde DELONEY, Appellant, v. The STATE of Texas, Appellee\", \"name_abbreviation\": \"Deloney v. State\", \"decision_date\": \"1987-03-24\", \"docket_number\": \"No. 05-86-00300-CR\", \"first_page\": \"6\", \"last_page\": \"10\", \"citations\": \"734 S.W.2d 6\", \"volume\": \"734\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T19:09:46.279018+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before HOWELL, STEWART and JAMES, JJ.\", \"parties\": \"Billy Clyde DELONEY, Appellant, v. The STATE of Texas, Appellee.\", \"head_matter\": \"Billy Clyde DELONEY, Appellant, v. The STATE of Texas, Appellee.\\nNo. 05-86-00300-CR.\\nCourt of Appeals of Texas, Dallas.\\nMarch 24, 1987.\\nDiscretionary Review Refused Oct. 14,1987.\\nDonald C. Adams, Irving, for appellant.\\nGilbert P. Howard, Dallas, for appellee.\\nBefore HOWELL, STEWART and JAMES, JJ.\\n. The Honorable John A. James, Jr., Justice, retired, Court of Appeals, Tenth District of Texas at Waco, sitting by assignment.\", \"word_count\": \"1981\", \"char_count\": \"12648\", \"text\": \"HOWELL, Justice.\\nAppellant appeals his conviction by a jury of aggravated robbery, a felony. The jury assessed punishment at thirty-six years' confinement. Appellant asserts five points of error that we find to be without merit. Therefore, we affirm the trial court's judgment.\\nAppellant contends in his first point of error that the trial court erred in denying his motion to set aside the indictment under the Texas Speedy Trial Act (\\\"the Act\\\"). See TEX.CODE CRIM.PROC.ANN. art. 32A.02 (Vernon Supp.1986). We disagree.\\nThe Act mandates that the court \\\"shall grant a motion to set aside an indictment . if the state is not ready for trial within . 120 days of the commencement of a criminal action if the defendant is accused of a felony.\\\" TEX.CODE CRIM.PROC. ANN. art. 32A.02, \\u00a7 1 (Vernon Supp.1986).\\nThe record reflects that appellant was indicted on February 4, 1985. The State filed an announcement of ready for trial on February 20, 1985. Appellant was not arrested until December 17, 1985, far more than 120 days after the indictment was filed.\\nAppellant's absence effectively rebutted the State's prima facie showing of readiness because defendant's mere absence does not toll the 120-day limit. Newton v. State, 641 S.W.2d 530, 531 (Tex.Crim.App.1982). Therefore, the burden fell upon the State to prove that some statutorily excludable period of delay extended the initial time limit. Phipps v. State, 630 S.W.2d 942, 947 (Tex.Crim.App.1982).\\nThe Act provides that the 120-day limit is tolled when a period of delay results from \\\"the absence of the defendant because his location is unknown and . the state has been unable to determine his location by due diligence.\\\" TEX.CODE CRIM. PROC.ANN. art. 32A.02, \\u00a7 4(4)(B) (Vernon Supp.1986).\\nThe trial court found that the State had exercised due diligence in attempting to determine appellant's location. The trial judge is the primary finder of fact on motions such as this and his findings will not be disturbed unless manifestly contrary to the evidence. See Ordunez v. Bean, 579 S.W.2d 911, 914 (Tex.Crim.App.1979). The facts in the record support the trial court's finding.\\nThe robbery in question occurred on January 18, 1985. Appellant was identified and an arrest warrant for appellant issued on January 28, 1985. Officer Prewitt of the Dallas Police Department testified that he received the warrant on the date of its issuance and that he and another officer attempted to execute the warrant by going to appellant's last known address on Gould Street, which was listed on the warrant. A young woman informed the officers that appellant had moved. The officers then questioned some of the neighbors, who told the officers that appellant had left that address after two other officers had been there earlier in the day. None of the neighbors could tell the officers where appellant lived or worked, and appellant did not leave a forwarding address. Officer Prewitt also testified that he checked several other places for appellant without success. He stated that, during January and February 1985, he and three other officers searched for appellant; but, having failed to locate him, the warrant was turned over to the police department's Fugitive Section, which works full-time on warrants, and to the Dallas Sheriff's office.\\nOfficer Deax of the Dallas Sheriff's office testified that he also attempted to execute the warrant at the Gould Street address, but was told that appellant was no longer there. He further stated that he \\\"at larged\\\" the warrant on April 23, 1985, which means that he ceased his attempts to execute the warrant after he exhausted all leads in attempting to arrest appellant.\\nOfficer Smith, who worked in the warrant research section of the Sheriff's office, testified that he received the at-larged warrant in July 1985, when his section of the office was first activated. He attempted to arrest appellant on July 17, 1985, at an apartment on Congress Street, the address on appellant's driver's license. That search was unsuccessful. Appellant's sister lived at that address and told Officer Smith that she had not seen or heard from appellant in quite a while. Officer Smith obtained a subpoena for the telephone company records relating to the sister's telephone, which yielded a lead in Mississippi that ultimately proved to be fruitless.\\nOfficer Wiginton, of the Dallas Police Department, worked in a unit of the department's Fugitive Section that was established in September 1985. He stated that he found a work address and three residential addresses for appellant, based on his research of appellant's traffic tickets. The record does not reflect the dates on which those tickets were issued. The employer at the work address informed him that appellant no longer worked there. He also checked the two residential addresses on Gould and Congress but could not find appellant. He determined that the third residential address belonged to one of appellant's relatives. Wiginton caused another officer to telephone the parties at that address and was informed that appellant was not there but that he worked for a blueprint company in Dallas. Through further research, Officer Wiginton and his partner determined which blueprint company was appellant's employer; they arrested him outside that company's premises on December 17, 1985.\\nThe evidence is sufficient to support the trial court's finding that the State exercised due diligence in attempting to apprehend appellant. Cf. Garcia v. State, 696 S.W.2d 262, 266 (Tex.App. \\u2014 San Antonio 1985, pet. granted) (no due diligence when police made no effort to arrest appellant at address stated in arrest warrant and sheriff made only one such attempt); Beddoe v. State, 681 S.W.2d 114, 115 (Tex.App. \\u2014 Houston [14th Dist.] 1984, pet. granted) (no due diligence when sheriff's department made no attempt to execute appellant's arrest warrant and only action taken was to enter warrant information into crime information computers). Although the officers might well have located appellant sooner, such is not the test. It is undisputed that they were never in possession of appellant's true whereabouts until the day before the arrest. Undoubtedly, the warrant was allowed to lie unattended from time to time while the officers devoted their attention to other offenders. However, the warrant was never ignored for an extended period. We hold the officer's ac tions to be sufficient and overrule point one.\\nAppellant's second contention is that the trial court erroneously permitted the State to bolster the prior unimpeached identification of appellant by two of the State's witnesses. We disagree. The prosecutor elicited testimony from Investigator McNear of the Dallas Police Department that he administered a photo lineup to two eyewitnesses and that they both picked a photo out of the lineup. The prosecutor did not inquire and McNear never stated whether either witness selected appellant's photo. Defense counsel's objection, based on improper bolstering, was overruled. Previously, both witnesses made an in-court identification of appellant and testified that they picked appellant's photo out of the photo lineup.\\nWhile a witness who identifies an assailant at the trial may testify that he also made an extrajudicial identification of the assailant, other witnesses may not bolster the witness' unimpeached testimony by corroborating the extrajudicial identification. Lyons v. State, 388 S.W.2d 950, 950-51 (Tex.Crim.App.1965). However, Officer McNear's testimony did not corroborate the other two witnesses' extrajudicial identification because he did not verify that they selected appellant's photo out of the lineup; he merely stated that each witness selected one of the photos that comprised the lineup. We hold that such testimony did not violate the rule against bolstering. See Sanders v. State, 688 S.W.2d 676, 679 (Tex.App. \\u2014 Dallas 1985, no pet.); Hastings v. State, 641 S.W.2d 332, 334 (Tex.App.\\u2014 Dallas 1982, pet. ref'd). Appellant's second point of error is overruled.\\nAppellant next asserts that the trial court erroneously limited his cross-examination of the complainant concerning the complainant's motive for providing testimony. Defense counsel attempted to question the complainant about a picture that had been admitted into evidence and that displayed the injuries that complainant sustained during the robbery. Specifically, defense counsel inquired whether the picture was taken to support a workers' compensation claim allegedly filed by the complainant. The trial court sustained the prosecutor's objection on relevancy grounds.\\nA defendant should be allowed great latitude in showing any fact, including pending charges, that tends to establish bias, ill feeling, motive, or animus on the part of any witness who testifies against him. Green v. State, 676 S.W.2d 359, 362 (Tex.Crim.App.1984). The trial court has considerable discretion as to how such matters may be proved and as to what collateral evidence is material for that purpose. Id. at 362-63. Generally, a defendant is permitted to show that the complaining witness has brought a civil suit for damages based on the same occurrence for which the defendant is being prosecuted. Blake v. State, 365 S.W.2d 795, 796 (Tex.Crim.App.1963); Branford v. State, 165 Tex. Cr.R. 314, 306 S.W.2d 725, 726 (1957). However, the cases that have held such evidence to be admissible are limited to those circumstances where the complaining witness brings a collateral civil action against the accused. See, e.g., Cox v. State, 523 S.W.2d 695, 700 (Tex.Crim.App.1975); Blake, 365 S.W.2d 795, 796 (Tex.Crim.App.1963); Branford, 306 S.W.2d 725, 726 (Tex.Crim.App.1957); Jolly v. State, 681 S.W.2d 689, 694 (Tex.App.\\u2014 Houston [14th Dist.] 1984, pet. granted). In the present case, the complaining witness did not file a civil action against appellant seeking compensation for damages arising from the robbery. He filed a claim for workers' compensation; appellant's guilt or innocence is wholly unrelated to the success of that claim. Therefore, the mere existence of the collateral action did not indicate any improper motive, bias, or prejudice on the part of the complainant in testifying against appellant. The trial court did not abuse its discretion in refusing to permit defense counsel to elicit testimony concerning the complainant's workers' compensation claim. We overrule point three.\\nIn his fourth point of error, appellant claims that the evidence was insufficient to show that the complainant owned the property taken in the robbery. The Texas Penal Code includes m the definition of \\\"owner,\\\" a person who has a greater right to possession of the property than the person who takes it. TEX.PENAL CODE ANN. \\u00a7 1.07(a)(24) (Vernon 1974). Appellant argues that the complainant, one of the two employees of the store that was robbed, was not the owner of the money taken in the robbery because the other employee was the one who handled the store's cash receipts. However, regardless of the two employees' respective responsibilities, we find that the evidence is sufficient to establish that the complainant, as an employee of the store, had a greater right to possess the store's money than did appellant. See Coleman v. State, 699 S.W.2d 598, 598-99 (Tex.App. \\u2014 Texarkana 1985, no pet.) (complainant employed as cook and waitress at restaurant held to have greater right to possession than defendant even though defendant forced some other employee to empty cash register). We hold that the complainant meets the statutory definition of \\\"owner\\\" and overrule point four.\\nIn his final point of error, appellant asserts that the trial court committed fundamental error when it gave the jury instructions concerning parole laws and good time credits. The basis of this claim is that the statute that mandates such instructions, TEX.CRIM.PROC.CODE ANN. art. 37.07, \\u00a7 4 (Vernon Supp.1986), is unconstitutional. We have held recently that there are no constitutional infirmities in that statute. Rose v. State, 724 S.W.2d 832 (Tex.App. \\u2014 Dallas 1986, pet. filed); Joslin v. State, 722 S.W.2d 725 (Tex.App. \\u2014 Dallas 1986, pet. granted). Appellant's fifth point is overruled.\\nWe affirm.\"}"
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+"{\"id\": \"9965345\", \"name\": \"VIEW-CAPS WATER SUPPLY CORPORATION, Appellant, v. Allen PURCELL et al., Appellees\", \"name_abbreviation\": \"View-Caps Water Supply Corp. v. Purcell\", \"decision_date\": \"1981-02-26\", \"docket_number\": \"No. 5562\", \"first_page\": \"353\", \"last_page\": \"356\", \"citations\": \"613 S.W.2d 353\", \"volume\": \"613\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Texas Courts of Civil Appeals\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T19:57:26.589846+00:00\", \"provenance\": \"CAP\", \"judges\": \"DICKENSON, J., not participating.\", \"parties\": \"VIEW-CAPS WATER SUPPLY CORPORATION, Appellant, v. Allen PURCELL et al., Appellees.\", \"head_matter\": \"VIEW-CAPS WATER SUPPLY CORPORATION, Appellant, v. Allen PURCELL et al., Appellees.\\nNo. 5562.\\nCourt of Civil Appeals of Texas, Eastland.\\nFeb. 26, 1981.\\nRehearing Denied March 26, 1981.\\nBarbara B. Rollins, Bradbury, Tippen & Rollins, Abilene, for appellant.\\nJohn R. Saringer, Wilson, Saringer, Hark-er & Wilson, Frank Scarborough and Charles Black, Scarborough, Black, Tarpley & Scarborough, Abilene, for appellees.\", \"word_count\": \"1099\", \"char_count\": \"6807\", \"text\": \"McCLOUD, Chief Justice.\\nAlien Purcell sued Hollis E. Swafford, Jr., William F. Baker and View-Caps Water Supply Corporation for damages resulting from the failure of View-Caps to provide a water meter for a tract of land purchased by plaintiff. Swafford and Baker filed a third party claim against View-Caps for indemnity and damages. The court, based on jury findings, held that View-Caps violated the Deceptive Trade Practices Act, and entered a judgment for treble damages in the sum of $15,000 plus attorney's fees in favor of plaintiff. A take nothing judgment was entered for defendants Swafford and Baker, and they were further granted judgment of $2,500 against View-Caps for their attorney's fees. View-Caps appeals. We reform and affirm in part, and reverse and render in part.\\nSwafford and Baker contracted to convey a 15 acre tract of land to plaintiff through the Texas Veterans Land Act. The contract provided:\\nA stock certificate and rights to one (1) water meter on the View-Caps Water Supply Corporation line will be granted to Purchaser as a part of this contract with all installation charges and other expenses borne by Purchaser.\\nThe transaction was closed and the sellers delivered to Purcell a View-Caps membership certificate issued in the name of \\\"Ar-nett Dorbandt.\\\" Several months later, plaintiff contacted the president of View-Caps and was told that the certificate had not been properly transferred to plaintiff on the corporation's books, and that the certificate was issued for a different tract of land, and could not be transferred to Purcell's 15 acre tract. Plaintiff took the certificate to Swafford who obtained transfers from Dorbandt to Swafford and Baker and from them to Purcell. Purcell testified that he presented the transfers to the president of View-Caps and was told at that time that the certificate was for a different tract of land and it would not be possible to obtain a water meter.\\nPlaintiff went to trial on his third amended original petition. He specifically alleged, among other allegations, that Swaf-ford and Baker violated the DTPA by breaching an \\\"expressed warranty.\\\" Alternatively, plaintiff sought damages against View-Caps and specifically alleged that View-Caps violated the DTPA by its \\\"unconscionable actions.\\\"\\nThe jury found that Swafford and Baker made an \\\"express warranty\\\" to plaintiff that they were conveying a stock certificate and rights to one water meter on the View-Caps line, but that the express warranty was not breached by Swafford and Baker. The jury found in Special Issues 10, 11 and 12 that plaintiff was entitled to a water meter from View-Caps, and that the denial of the meter by View-Caps was wrongful. The jury found in Special Issue 13 that the denial of a water meter by View-Caps was not an \\\"unconscionable action or course of action.\\\"\\nThe only attack made by View-Caps on Special Issues 10, 11 and 12 is that such findings will not support the court's holding that it violated the DTPA. We agree. Plaintiff argues that these findings show a breach of warranty. We disagree. It is clear from plaintiff's pleadings that his only alleged violation of the DTPA against View-Caps was that it engaged in \\\"unconscionable actions\\\" toward plaintiff. Plaintiff specifically alleged breach of warranty against Swafford and Baker, but this specific allegation is not contained in the allegations against View-Caps. It is also clear that Special Issues 10, 11 and 12 were preliminary issues for issue 13 which asked if the denial of a water meter by View-Caps was an unconscionable action. We hold there are neither pleadings nor issues to support a finding that View-Caps violated the DTPA. The court erred in trebling the actual damages.\\nThe jury found in Special Issue 16 that $5,000 \\\"would reasonably compensate plaintiff for damages occasioned by the actions of View-Caps.\\\" No objection was made to the issue. View-Caps argues on appeal that there is \\\"no evidence\\\" to support the finding. We disagree. There is evidence that plaintiff incurred various expenses in having water transported to the tract of land and in digging a stock tank. Also, plaintiff testified that the failure of View-Caps to furnish him a water meter has prevented him from building a home on the 15 acre tract. There is evidence that the lack of water service will continue in the future. We cannot say that there is no evidence to support the jury's answer to Special Issue 16.\\nPlaintiff sought attorney's fees against View-Caps only under the DTPA. He did not seek attorney's fees against View-Caps under Tex.Rev.Civ.Stat.Ann. art. 2226 (Vernon 1971). We agree, therefore, with View-Caps that plaintiff is not entitled to attorney's fees since we have held that plaintiff failed to show a violation of the DTPA.\\nIn Special Issue 28 the jury found that $2,500 would be reasonable attorney's fees for legal services rendered by the attorney for Swafford and Baker in the preparation and trial of this cause. The trial court awarded Swafford and Baker a judgment for $2,500 against View-Caps.\\nSection 17.55A of the DTPA provides:\\nA person against whom an action has been brought under this subchapter may seek contribution or indemnity from one who, under the statute law or at common law, may have liability for the damaging event of which the consumer complains. A person seeking indemnity as provided by this section may recover all sums that he is required to pay as a result of the action, his attorney's fees reasonable in relation to the amount of work performed in maintaining his action for indemnity, and his costs, (emphasis added)\\nWe think this section permits the recovery of attorney's fees when a party is entitled to indemnity. Swafford and Baker incurred no liability and would, therefore, not be entitled to indemnity. This section does not permit Swafford and Baker to recover the attorney's fees they incurred in successfully defending the suit brought against them by plaintiff.\\nThe judgment in favor of Purcell against View-Caps is reformed to provide for an award of $5,000, and as reformed is affirmed. The judgment in favor of Swaf- ford and Baker for attorney's fees is reversed and judgment is rendered that they take nothing.\\nDICKENSON, J., not participating.\\n. Texas Deceptive Trade Practices-Consumer Protection Act, Texas Business and Commerce Code \\u00a7 17.41 et seq., hereinafter referred to as DTPA.\"}"
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+"{\"id\": \"9985388\", \"name\": \"Aline Ruth Parker HENDERSON, Administratrix, Petitioner, v. Marvin N. PARKER et al., Respondents\", \"name_abbreviation\": \"Henderson v. Parker\", \"decision_date\": \"1987-05-06\", \"docket_number\": \"No. C-5584\", \"first_page\": \"768\", \"last_page\": \"771\", \"citations\": \"728 S.W.2d 768\", \"volume\": \"728\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Supreme Court of Texas\", \"jurisdiction\": \"Texas\", \"last_updated\": \"2021-08-10T18:31:03.245633+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Aline Ruth Parker HENDERSON, Administratrix, Petitioner, v. Marvin N. PARKER et al., Respondents.\", \"head_matter\": \"Aline Ruth Parker HENDERSON, Administratrix, Petitioner, v. Marvin N. PARKER et al., Respondents.\\nNo. C-5584.\\nSupreme Court of Texas.\\nMay 6, 1987.\\nE. Troy Blakeney, Blakeney, Bourque & Squier, Houston, for petitioner.\\nVictor N. Makris, Thomas C. Petley and Shannon T. Warren, Makris, Petley & Warren, Houston, for respondents.\", \"word_count\": \"1024\", \"char_count\": \"6289\", \"text\": \"OPINION\\nRAY, Justice.\\nThis is a will construction case requiring a determination of the testators' intent regarding the disposition of certain real property. The trial court granted summary judgment awarding the real property to Aline Ruth Parker Henderson and Betty Sue Parker Prollock. The court of appeals reversed the judgment of the trial court and rendered judgment awarding the property to petitioner's uncles, the respondents, Donald and Marvin Parker. 712 S.W.2d 224. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.\\nIn 1971, William and Lillie Parker executed a joint will containing three alternative dispositions of their estate. The first two dispositions were to operate in the event one spouse survived the other and devised the entirety of the deceased's estate to the survivor. The third disposition, which is the subject of this appeal, provides as follows:\\nIn the event that both of us, the said Testators, shall die at the same time or as the result of a common accident or catastrophe, (in this regard should the survivor of us die within sixty (60) days after the date of the death of the first of us to pass away, it shall be conclusively presumed for all purposes under this will that we have died by common accident) then in that event we give, devise and bequeath unto our surviving children of this marriage, all of our property and estates, of every nature and description, real, personal, and mixed, and wherever situated, in fee simple, as follows:\\nTO DONALD E. PARKER 28\\u00bd acres on the east end of our 95 acre tract, to MARVIN N. PARKER the center 33x/3 acre tract with all improvements; and WILLIAM ALFRED PARKER the west 33\\u215b acres. Our will is that the land be divided equally between our three sons after deducting five acres heretofore given to DONALD E. PARKER.\\nIn 1977 the Parkers died within four (4) days of each other from natural causes. They were survived by two sons, respondents Donald and Marvin. The testators' third son, William, predeceased the testators and was survived by two daughters, Aline and Betty.\\nThe trial court granted the sisters' motion for summary judgment and rendered judgment dividing the property as follows: Donald and Marvin received the east and center sections; Aline and Betty, by virtue of section 68 of the Probate Code (anti-lapse provision), each received an equal share in the western section which was devised to their father, William, who died intestate. The court of appeals reversed the judgment of the trial court and rendered judgment dividing the property equally between Donald and Marvin. The court of appeals reasoned that the surviv-orship language created a class gift and held that the two surviving brothers, as sole survivors, were entitled to the entire devise.\\nPetitioner, Aline, contends the court of appeals erred in construing the will as creating a class gift. She argues that the testators' intent as expressed in the will was to create individual gifts to each of the three brothers. Although William predeceased the testators, the specific devise to him did not lapse but instead vested in his children, Aline and Betty.\\nResolution of this dispute depends on how the testators' intended to dispose of their property. Kelley v. Marlin, 714 S.W.2d 303, 305 (Tex.1986). Because testamentary intent is the critical inquiry in will construction cases, we must first look to the language used by the testators within the four corners of the instrument. Shriner's Hospital for Crippled Children of Texas v. Stahl, 610 S.W.2d 147, 151 (Tex.1980). Neither party contends the will is ambiguous, although both offer differing constructions based on the same language. In the absence of ambiguity, we must construe the will based on the express language used. Frost National Bank of San Antonio v. Newton, 554 S.W.2d 149, 153 (Tex.1977).\\nDonald and Marvin Parker contend the language devising the property to the \\\"surviving children of this marriage\\\" is evidence of the testators' intent to create a class gift. We disagree. The provision is merely a general statement clarified by the more specific disposition which follows, devising specific acreage to each of the three brothers. The specific provisions control over the general statement. Perry v. Hinshaw, 633 S.W.2d 503, 505 (Tex.1982). Additionally, the last sentence of the paragraph in question states: \\\"Our will is that the land be divided equally between our three sonsAs the last expression of the testators' intent regarding the devise, such statement evidences an intent to devise specific gifts to each son which would inure to the benefit of the sisters as to their deceased father's share.\\nMindful of the emphasis placed by the court of appeals on the survivorship language and on Perry v. Hinshaw, we are nevertheless of the opinion that the testators did not intend to create a class gift. In Perry v. Hinshaw we construed a will provision similar to the one before us: the relevant paragraph contained a general statement ending with a colon; following the colon was a more specific statement of the devise. The testator included words of survivorship in both the general and specific provisions, thus clarifying the nature of the disposition. Such is not the case with the Parkers' will. The only words of sur-vivorship in the relevant paragraph of the Parkers' will appear in the general statement preceeding the more specific and controlling provision. Because a testator's intent is determined as of the time the will is executed, we read the phrase \\\"surviving children of this marriage\\\" to mean children \\\"surviving\\\" at the time the will was executed. Winkler v. Pitre, 410 S.W.2d 677, 679 (Tex.Civ.App. \\u2014 San Antonio 1966, writ ref'd n.r.e.). The absence of survivorship language in the subsequent, more specific provision supports such a construction.\\nWe therefore reverse the judgment of the court of appeals and affirm the judgment of the trial court.\"}"
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