*1 Jr., Irvins, John E. Phillips, in child- E. residing welfare of the children Willie Dallas, Collins, petitioners. care facilities. People’s all We have considered Collins, Gooch, Cantey, Hanger, Munn & remaining arguments:
Baptist’s that state Patterson, Stephen L. Tatum and Rod licensing regulation of these homes Brown, Mack, Thompson, Wynn, Renfro & would violate the Ninth Amendment of the Gillespie, F. Fort Tom Renfro and John Constitution; 1983; I, article U.S. U.S.C. Worth, respondents. II, 1; 3a, 19; sections 6 and article section III, the Texas and article section of Con PER CURIAM. stitution. conclude that the State’s does not violate these regulatory scheme malpractice suit. On This is a medical foregoing hold provisions. Based on the 1, 1980, Mrs. Bradford discover- November ings, not reach the State’s third we need during surgery sponge apparently ed a left point of error. in 1975. filed on October 1981. Suit was and liti- These cases have been debated summary judg- The trial court rendered gated years upon for a number of the claim 5.82, defendants, on art. ment for based religion. regulate that the seeks to State sec. 4 of the Insurance Code. prior This record and those of the two unpublished opinion. appeals affirmed in an spurious cases that the one. show issue is grant applica- Pursuant to Rule we complete The State has manifested disinter- hearing error and without tion for writ of People’s religious est in the doctrines that argument, in accordance oral with Baptist past may has in the in the future Krusen, 678 court’s decision in Nelson v. expound. comply The homes can with (Tex.1984), and re- S.W.2d 918 reverse we requirements modest that are manda- law’s trial court. mand this cause to the tory for all other homes. A decision to People’s close the homes will be that of
Baptist, not the State. judgments
We reverse the of the courts and remand the cause to the trial
below enjoin People’s
court with instructions to
Baptist operating from these homes unless procures
and until such time as it a license
from the State. BERGHAHN, Henry Appellant,
Arthur Texas, Appellee. The STATE No. 125-84. Ruby BRADFORD and A.L.
Bradford, Petitioners, Texas, Appeals of Court of Criminal En Banc. George H. and Harris SULLIVAN Sept. 1984. Hospital, Respondents. Rehearing Denied Jan. 1985. No. C-2830.
Supreme of Texas.
Jan. 1985. *2 petition
State’s for review to consider the issue.
The verdict form attached to charge included alternatives for the to find appellant guilty murder, of voluntary man- slaughter, involuntary manslaughter, crimi- nally negligent homicide, injury reckless child, a criminally negligent injury to a child. It did not include finding a form for guilty. In hearing conduct- trial, ed the trial court after the reporter preparing testified that after original charge form, and verdict finding did include a form guilty, injury the alternatives for to a child process were added and in correcting of page verdicts, of form guilty the not form was omitted. She also testified that changes were made under the direction of defense counsel. The Court of held omission of guilty the not form was error, being fundamental there objection no to the omission. Bolden v. it alleged held that error in the verdict preserved
form was not for review where objection there was no at trial. The form used that case recited: “(If you guilty, find the defendant use immediately form shown be- low:)
We, jury, guilty find the defendant robbery charged of as in the indictment. Falls, Perry, Charles E. Wichita Bruce A. Foreman. Martin, Park, Iowa appellant. “(If you find the defendant not Lerew, County Atty., Harold Timothy D. use the verdict form immediately shown Eyssen, Atty., Macha, Dist. and Barry L. below:) Falls, Asst. Dist. Atty., Wichita Robert Huttash, Austin, Atty., State’s for the Foreman.” State. case, Bolden, In this unlike there was no
mention of a not
verdict on the sheet
Bolden, however,
Like
verdict forms.
objection.
there was no trial
OPINION ON STATE’S PETITION FOR
In Cadd v.
it was
DISCRETIONARY REVIEW
requests
charge
stated “if a
defendant
ODOM,Judge.
charge
given just
requested,
and that
Appellant was convicted of murder. The
he
position
complain
any
no
error
therein,
Court of Appeals, 660 S.W.2d
found
Although
[citations omitted].”
fundamental error in the
and re-
the issue in
that case involved
substan-
granted
forms,
versed the conviction. We
tive
instead of the verdict
the rule
equally
should
applicable
(1952),
reported
S.W.2d 180
he
the ver-
both.
dict on
charge.1
the bottom of the
Moreover, given
guidance,
little or no
In this
super-
case
something
foreman
write out
so in-
vised the alteration of the verdict
complete, vague
ambiguous
page by
and made no
support
would not
objection
convic-
omission of a not
form.
*3
See, e.g.,
State,
Buster v.
tion.
when there exists room for doubt as to propriety,” their Foreman.” Smith v. 103 Tex. (1926). Cr.R. 280 S.W. at 201-202 Ultimately the Court found that “a form Nonetheless, approving practice a rule one, guilty, although for not not a develop, viz: if was submitted and the foreman had *4 “If the court desires to furnish the accepted that and it had been jury with a form for their verdict he by would have been id., every should include a form for acquitted,” Judge verdict Roberts dis- sented, might prescience be rendered so as to avoid and with his usual conveying jury any to the minds of the wrote: impression opinion as to the of the court “Suppose provid- an instruction and form might as to which of several verdicts ‘Guilty’ ed for a verdict but no mention should be rendered.” made of a ‘Not whatsoever verdict of further, Guilty?’ logical step Taken one (2nd Ed.) 1 Branch’s Annotated Penal Code today’s good authority decision be § 652, 677. for in upholding ‘Guilty’ a verdict of such it not Court has held that reversi a case.” ble error for a trial court to submit Id., at 303. forms, including guilty,” one for “not Roberts, predicted by Judge As this possible which “cover all verdicts under the step, relying Court now takes that on Bol- facts,” State, 162 Tex.Cr.R. Garcia v. State, supra, in den v. (1956); 515 Harris v. Guilty” object not to omission of a “Not State, 302; supra, Ragland at see also v. sheet, “alleged form on the verdict State, (Tex.Cr.App. 420 error” is not deemed fundamental. Indeed, 1965). when neither accused nor forms, In the trial court told the his counsel had seen the case at bar they “justified in jury pointed in its that “suitable forms for out that as your verdict are hereto attached.” As it suming that the court would deliver turned, however, proved that statement to jury forms for verdict authorized long guilty” “not be incorrect—so charge,” Clepper the main Although artic- verdict was “suitable.” not (1955). Tex.Cr.R. that, majority ulated the must reason hav- applied has It is also true that the Court circum- ing been instructed under which contemporaneous objection rule when acquit appellant say by and stances could failed to an accused has seen the forms and Guilty,” and should that its verdict “Not majority does here. How object, as the determined, jury foreman of what ever, this Court if there is jury free to write out his own was cause in which the rendered before this sign form to that effect and it. appeal precluded complaint on rule has partway good “the That takes us back to Guilty” “Not was that a form verdict of left to days” jury old when foremen were all, yet I jury at have not delivered to their own devices. to discover it. Even relies, majority supra, upon which the judge A in Texas either invented or trial rule not content to invoke the for use in Court was adapted jurisdiction from another objection. chal- and rest on failure of this State a verdict form. When addition, justify finding appellant its result the ma- for fundamen- provided appellant. tal jority says “appellant’s super- fairness was page by vised the alteration of the verdict The Fort Worth Court of cor- reporter” equates that with cause, rectly decided its requesting given in- that is not, —the it is I should be affirmed. Because However, reading vited error rule. from respectfully dissent. report hap- what State’s brief pened, CAMPBELL, JJ., I so join. am not sure that counsel can be TEAGUE and “supervised” production said to have of the en Before the court banc. product. flawed REHEAR- OPINION ON MOTION FOR appel- The court testified ING ON PETITION APPELLANT’S requested lant’s counsel additional forms FOR DISCRETIONARY REVIEW page findings guilt the verdict for DAVIS, Judge. W.C. with respect two lesser included of- page fenses. She took the verdict that had granted motion leave already her, prepared by been “whited out” rehearing clarify file a our motion possible the fifth verdict the words “not original opinion. post- The record from the guilty” and counsel directed her as to what trial hearing trial conducted type covering words to for verdict forms appellant’s attorney demonstrates that Using the lesser included offenses. what way responsible no for the omitted not *5 completed remained of the fifth form she a guilty verdict form. The was omission requested verdict for the first lesser includ- purely implication a clerical error. The ed typed offense. When she the last ver- original opinion, our that coun- dict form for the last lesser included of- omission, sel “directed” the is incorrect. fense, “inadvertently, the uninten- However, original not disturb our we will tionally a a left off” form for not holding that Bolden verdict; by any- she “had not been directed (Tex.Cr.App.1973) controls the instant off,” one to leave it and was unaware that Bolden, Like there no trial case. was ob- she had done so. jection. deny appellant’s motion for rehearing. actions, process criminal due vouch- by safed the Fourteenth Amendment and CLINTON, Judge, dissenting. §I, 19, due course of law under Article Bill The reason for the decision of the Fort Rights, guarantees of proceedings that Appeals, as in its Worth Court of well will be conducted accordance with estab- findings, conclusion as in its is stated thus- provide lished rules and forms which fun- ly: necessary damental fairness due admin- to case, “In this instructed justice. Deprivations istration of of due your that forms for ‘suitable process and due course do not rest on attached,’ only are hereto and the forms culpable fault, may but alike flow from provided guilty. found the defendant good innocent or faith acts and omissions effect to Such action in amounted part any participant on the in the crimi- Ber- by instruction justice system. nal When the final- find ghahn guilty. The error is ly presented jury a submitted also ver- fundamen- requires tal and be re- case containing appel- dict find sheet a form to versed and remanded for a new trial.”1 alleged lant or of offense (Tex. included Berghahn other conceivable lesser of- fense, 1983). App. but not include verdict form a Worth —Fort throughout emphasis supplied by 1. All is cated. writer of this unless otherwise indi- submitted,” and further conclud- grants petition for the form
When review, it discretionary is review ed that harm or reversible error has “no appeals, Article shown,” “decision” of court of in that: been 44.45(a) (b); 44.01 and Article present “In the case a not form of say, for such to review “the reason one, although not a decision,” 44.24(c).2 Indeed, Article that is and if the foreman had submitted in the precisely what the State identified accepted by that form and it had been Yet, grounds presented two for review. court, would have been majority simply of this Court will Id., acquitted.” given address the reason for the decision Judge Douglas majority So what appeals. the court of really Bolden held is that circumstanc- appeals The court of was well aware present error. es did fundamental to failure to objected had not inapposite; justify it will not guilty.” for “not include a verdict form majority today. what the does lack of an only Not does the record reflect majority Because the would reverse objection, curiae brief but also an amicus appeals judgment of the court of without flatly objection had not conceded that an presented considering even the issues ap- very reason been made. That was the and now and determined to a pellant and amicus curiae had to resort review, I presented re- to this Court claim that error had been fundamental spectfully dissent. submitting court in committed the trial form for jury charge without a verdict MILLER, J., joins. guilty.” And the finding appellant “not discussed, from cited and albeit authorities jurisdictions, support
other their contention ap- given by the reason the court of
peals its decision. original this Court re-
On submission ap- of the court
versed
peals on a dual basis: failure of guilty” ver- object of a “not absence HENSON, Appellant, Paige Randall form, State, 489 dict under Bolden v. (Tex.Cr.App.1973); appellant “supervised the alteration of the Texas, Appellee. STATE thus was in no page” complain, under Cadd v. position 615-82. No. (Tex.Cr.App.1979). Texas, Court of Criminal given by the Neither confronts the reason En Banc. decision. appeals court of for its 12, 1984. Dec. rehearing, factually since Now diametrically supported in the record and express finding by the trial
contrary to an a clerical that such omission was
error, from the latter this Court retreats However, majority adheres to
position. Bolden, supra, ignoring that portion
one go directly treat
the Court did on and at- of the verdict form that was
effect of the trial
tached “the was not misled
concluded that un- less otherwise indicated. are to articles in V.A.C.C.P. 2. All references