*1 judgment contained a form recitation demanded, jury that no GARRARD, ux, Appellants, et James stated, “pled guilty docket sheet to the court.” found that this amount- HOSPITAL, ST. ELIZABETH et ed to a silent record and held that the State al., Appellees. had failed to meet its constitutional burden establishing jury waiver of trial. at Id. No. 09-85-055 CV. 315. Appeals Court of here, But we are not faced with a silent Beaumont. response appellant’s In record. motion conviction, supporting to strike the April 1986. evidence, objec- into State offered Rehearing 7,May Denied 1986. tion, copy a certified of the docket sheet relating conviction. The docket stamped “jury
sheet was with the notation by person defendant in
waived and writ-
ing.” correctly hold that
We trial court appellant’s sup-
denied motion to strike the
porting conviction.
Appellant’s ground first of error is over-
ruled.
Appellant’s ground final of error
contends that the trial court erred grant quash his motion to the indictment
for failure to state an offense. pertinent part, alleges
In the indictment appellant appropriate acquiring “did exercising prop- otherwise control over
erty”. Appellant’s specific complaint is allege the indictment
appellant appropriate acquiring “did exercising proper-
otherwise control over
ty.”
It is well-settled that the omission of a
word or words an indictment not fatal part
if that omitted is not essential to the
certainty necessary description
the offense and does not affect the mean- State,
ing. Ansley v. 468 S.W.2d
(Tex.Crim.App.1971). We find that
wording sufficient to of the indictment was theft, despite the
allege the offense of “by”, preposition
omission of the and we ground appellant’s final of error.
overrule is af- judgment of the trial court
firmed.
572
ic
negligence
acts of
committed
hos-
pital
pathologist.
The Garrards
sought damages
anguish.
for mental
exceptions of the defendants
alleged the
had
plead any
Garrards
act,
or
gross
intentional willful
negligence,
contract,
breach
of
injury or a
Rugg,
Thomas F.
& Rugg,
Reinstra
cause of action under the wrongful death
Beaumont,
appellants.
for
statute,
thus,
Garrards,
survival
and
Chamblin, Mehaffy,
Patricia D.
Weber
having only plead
anguish arising
mental
Gonsoulin,
Keith &
Cleve Bachman and
out
negligence
action,
cause of
had not
Curry Cooksey, Orgain,
Tucker,
Bell &
stated a cause of action
which relief
Beaumont,
appellees.
for
granted.
could be
When the
court
spe
sustains
OPINION
cial exceptions for
state
cause
action,
plaintiff
of
can refuse to amend
BURGESS, Justice.
and
appeal.
test the court’s
on
Fur
Mr. and
brought
Mrs. James Garrard
thermore, for
purposes
appeal,
of
initially against
suit
Hospital
allegations of
plaintiff’s petition
must
alleging negligence
gross negligence.
and
be
as
City
true. Hubler v.
of
petition
Their first amended
added Dr. H.R. Corpus Christi,
(Tex.Civ.
Wilcox and Dr. Dave Frueh as defendants
App. Corpus Christi
writ ref’d n.r.
—
dropped allegations
gross negli-
and
e.).
gence
punitive
and their
for
claims
dam-
Our court has held that Sanchez v.
ages. A
petition
second amended
dis-
Schindler,
(Tex.1983),
651
249
S.W.2d
au
Dr.
alleged
missed
Frueh
and
recovery
anguish
thorized the
for mental
specific
specific
acts of negligence and
ele-
proof
physical injury
without
or conduct
damage.
ments of
negligence. Baptist Hospital
worse than
Thereafter,
remaining
two defend-
Baber,
v.
Southeast
Inc.
672
special exceptions
ants filed
contending the
(Tex.App.
S.W.2d 296
— Beaumont
Garrards
state a claim for
also,
granted).
writ
See
Missouri Pacific
granted.
which relief could be
Vlach,
(Tex.App.
R. Co. v.
414
S.W.2d
exceptions and,
on
sustained
the re-
1985, writ).
—Houston
[14th Dist.]
fusal of the
to further
appellees argue
Sanchez
plaintiff’s petition.
dismissed the
distinguishable
in
because of the death
plaintiff’s
petition
argument
carry
volved and their
alleged that
admitted to
Mrs. Garrard was
Baptist Hospital.
San
over to
anticipated
specifically
chez
states:
delivery of
At the
her second child.
time
plaintiff
permitted
“A
delivery,
it
discovered that Mrs.
was
prove
damages resulting
from a tort-
A
carrying
Garrard was
twins.
male in-
negligent
feasor’s
infliction of emotional
born
A
healthy.
fant was
alive
female
This in-
trauma.
[Citation omitted]
attending physi-
infant was still-born. The
anguish.”
cludes
agreed
cian and the father
to have an au-
limiting
language
This
does not have a
topsy performed
body
of the still-
on
recognized
clause. We believe Sanchez
infant. At some time after
deliv-
born
tort of
emotional
prior
ery,
autopsy,
body
but
trauma
does not
a death
mortuary
the infant was delivered to a
involved.
unmarked,
grave
disposed of in an
common
knowledge
Supreme Court
or consent of the
Should our
re-examine
alleged
light,
is an
specif-
then
in a different
Garrards.
Sanchez
possession of the
nor
he ever have
did
exception
additional
Garrards
stillborn child.
cause of
have stated a
action. Classen
(Tex.Civ.App.
Benfer, 144 S.W.2d
— San
Petition
Second
cor.),
judgmt.
Antonio
writ dism’d
alleges that Dr. Wilcox
[sic]
involving
a body
was a case
loss
to insure
*3
a
upheld
a re-interment and
present
the
his lab. Under
delivered to
only
damages
actual
were the
where the
that Dr. Wilcox
pleadings, I would not hold
resulting
pain
ones
from mental
and suf
anis
insurer.
fering.
exception,
an
We concur with such
on the
majority, apparently,
relies
therefore,
We,
if there
one.
sus
need be
plead in
alter-
a
can
the
doctrine that
points
and three
tain
of error numbers one
agree.
allegations in the
I
native.
point
and do not reach
of error number
mutually destructive.
pleadings
tested
are
plaintiff's
dismissing
The order
the
two.
Land Bank
v. Dallas Joint Stock
Colbert
is reversed
Dallas,
129 Tex.
the cause is remanded for trial.
Ass’n,
(1937); Barry v. Screwmen’s Benev.
AND REMANDED.
REVERSED
(1887);