before instruction in Texas

1947Said Rule 67 reads: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings * * Said Rule 90 reads: “ * * * Every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by motion or exception in writing and brought to the attention of the Judge in the trial court before the instruction or charge to the jury or, in a non-jury ca.se, before the rendition of judgment, shall be deemed to have been waived * * * In the case

1947Said Rule 67 reads: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings * * Said Rule 90 reads: “ * * * Every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by motion or exception in writing and brought to the attention of the Judge in the trial court before the instruction or charge to the jury or, in a non-jury ca.se, before the rendition of judgment, shall be deemed to have been waived * * * In the case

1970Bednarz v. State, 142 Tex. 138 , 176 S.W.2d 562 (1944); Texas Osage Co-Op. Royalty Pool v. Kemper, 170 S.W.2d 849 (Tex.Civ.App., 1943), writ refused.

1967Bednarz v. State, 142 Tex. 138 , 176 S.W.2d 562 (1944); Texas Osage Co-Op. Royalty Pool v. Kemper, 170 S.W.2d 849 (Tex.Civ.App., 1943), writ refused.

2024See Estate of Shultz, No. 11- 21-00177-CV, 2022 WL 4099404 , at *4 (Tex. App.—Eastland Sept. 8, 2022, no pet.) (mem. op.); Hartwell v. Lone Star, PCA, 528 S.W.3d 750 , 764–65 (Tex. App.—Texarkana 2017, pet. dism’d by agr.); Onoray Davis Trucking Co. v. Lewis, 635 S.W.2d 622 , 624–25 (Tex. App.—Houston [14th Dist.] 1982, writ dism’d).

2024See Estate of Shultz, No. 11- 21-00177-CV, 2022 WL 4099404 , at *4 (Tex. App.—Eastland Sept. 8, 2022, no pet.) (mem. op.); Hartwell v. Lone Star, PCA, 528 S.W.3d 750 , 764–65 (Tex. App.—Texarkana 2017, pet. dism’d by agr.); Onoray Davis Trucking Co. v. Lewis, 635 S.W.2d 622 , 624–25 (Tex. App.—Houston [14th Dist.] 1982, writ dism’d).

1977Thus, Tone v. State, 505 S.W.2d 300 (Tex.Cr.App.1974) and Dempsey v. State, 496 S.W.2d 49 (Tex.Cr.App.1973) are not controlling.

1977Thus, Tone v. State, 505 S.W.2d 300 (Tex. Cr.App.1974) and Dempsey v. State, 496 S.W.2d 49 (Tex.Cr.App.1973) are not controlling.

1977Thus, Tone v. State, 505 S.W.2d 300 (Tex.Cr.App.1974) and Dempsey v. State, 496 S.W.2d 49 (Tex.Cr.App.1973) are not controlling.

1977Thus, Tone v. State, 505 S.W.2d 300 (Tex. Cr.App.1974) and Dempsey v. State, 496 S.W.2d 49 (Tex.Cr.App.1973) are not controlling.

1975Appellant’s claim to a charge on self-defense is based on Art. 1223, V.A.P.C., which provided as follows: “When the homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapon or means used by the party attempting such murder, maiming, disfiguring or castration are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury.” The prerequisites to the application of this presumption were most recently stated in Stone v. State, 510 S.W.2d 612 (Tex.Cr.App.1974), where the Court said: “It

1974Fleming Oil Co. v. Watts, 193 S.W.2d 979 (Tex.Civ.App.—Texarkana 1946, writ ref’d n. r. e.).

1974In DeVault v. State, 159 Tex.Cr.R. 360 , 264 S.W.2d 126 (1954), referring to Article 1223, this court said: “It has been the consistent holding of this Court that before the presumption *616 of said Article tomes into play there must be a showing (1) that the deceased had a weapon, (2) that such weapon in the manner of its use was calculated to cause death, and (3) that the deceased was using the weapon to make an assault upon the appellant at the time the appellant fired the fatal shot.” Booker v. State, 165 Tex.Cr.R. 44 , 302 S.W.2d 431 (1957) emphasizes the significance of use of a weapon b

1974In DeVault v. State, 159 Tex.Cr.R. 360 , 264 S.W.2d 126 (1954), referring to Article 1223, this court said: “It has been the consistent holding of this Court that before the presumption *616 of said Article tomes into play there must be a showing (1) that the deceased had a weapon, (2) that such weapon in the manner of its use was calculated to cause death, and (3) that the deceased was using the weapon to make an assault upon the appellant at the time the appellant fired the fatal shot.” Booker v. State, 165 Tex.Cr.R. 44 , 302 S.W.2d 431 (1957) emphasizes the significance of use of a weapon b

1974In DeVault v. State, 159 Tex.Cr.R. 360 , 264 S.W.2d 126 (1954), referring to Article 1223, this court said: “It has been the consistent holding of this Court that before the presumption *616 of said Article tomes into play there must be a showing (1) that the deceased had a weapon, (2) that such weapon in the manner of its use was calculated to cause death, and (3) that the deceased was using the weapon to make an assault upon the appellant at the time the appellant fired the fatal shot.” Booker v. State, 165 Tex.Cr.R. 44 , 302 S.W.2d 431 (1957) emphasizes the significance of use of a weapon b

1974In DeVault v. State, 159 Tex.Cr.R. 360 , 264 S.W.2d 126 (1954), referring to Article 1223, this court said: “It has been the consistent holding of this Court that before the presumption *616 of said Article tomes into play there must be a showing (1) that the deceased had a weapon, (2) that such weapon in the manner of its use was calculated to cause death, and (3) that the deceased was using the weapon to make an assault upon the appellant at the time the appellant fired the fatal shot.” Booker v. State, 165 Tex.Cr.R. 44 , 302 S.W.2d 431 (1957) emphasizes the significance of use of a weapon b

1972In Wagner v. Warnach, 156 Tex. 334 , 295 S.W.2d 890 (Tex.Sup.1956), Chief Justice Hickman said: “To be final a judgment must determine the rights of the parties and dispose of all the issues involved so that no future action by the court will be necessary in order to settle and determine the entire controversy.” It is said in 1 Freeman on Judgments, Sec. 38: “A final decree is one which disposes of the cause, either by sending it out of the court before a hearing is had on the merits, or after a hearing on the merits, decreeing either in favor of or against the prayer of the bill.

1972In Wagner v. Warnach, 156 Tex. 334 , 295 S.W.2d 890 (Tex.Sup.1956), Chief Justice Hickman said: “To be final a judgment must determine the rights of the parties and dispose of all the issues involved so that no future action by the court will be necessary in order to settle and determine the entire controversy.” It is said in 1 Freeman on Judgments, Sec. 38: “A final decree is one which disposes of the cause, either by sending it out of the court before a hearing is had on the merits, or after a hearing on the merits, decreeing either in favor of or against the prayer of the bill.

1970It was necessary for the state to make out a case against the principal before it could claim a conviction of appellant, and in our opinion said judgment of conviction was admissible in evidence against said Singleton.” In Aven v. State, 77 Tex.Cr.R. 37 , 177 S. W. 82 , where Aven was tried as an accomplice to arson, the Court said: “The record shows that said principal had been convicted some time before the trial of appellant, and that in his case he testified, admitting that he had set fire to the house, and showing his guilt as principal.” Later in Espalin v. State, 90 Tex.Cr.R., 625 , 237

1970It was necessary for the state to make out a case against the principal before it could claim a conviction of appellant, and in our opinion said judgment of conviction was admissible in evidence against said Singleton.” In Aven v. State, 77 Tex.Cr.R. 37 , 177 S. W. 82 , where Aven was tried as an accomplice to arson, the Court said: “The record shows that said principal had been convicted some time before the trial of appellant, and that in his case he testified, admitting that he had set fire to the house, and showing his guilt as principal.” Later in Espalin v. State, 90 Tex.Cr.R., 625 , 237

1970The weight of authority seems in favor of admitting the confession of the principal, where an accomplice is on trial; it being necessary to show the guilt *633 of the principal, and all evidence being admissible whose legitimate tendency is to show such guilt.” In Waybourn v. State, 113 Tex.Cr.R. 50 , 19 S.W.2d 60 , Rosa Waybourn was convicted for offering an inducement of $300.00 to one Joe Morales to have her husband killed.

1970The weight of authority seems in favor of admitting the confession of the principal, where an accomplice is on trial; it being necessary to show the guilt *633 of the principal, and all evidence being admissible whose legitimate tendency is to show such guilt.” In Waybourn v. State, 113 Tex.Cr.R. 50 , 19 S.W.2d 60 , Rosa Waybourn was convicted for offering an inducement of $300.00 to one Joe Morales to have her husband killed.

1970It was necessary for the state to make out a case against the principal before it could claim a conviction of appellant, and in our opinion said judgment of conviction was admissible in evidence against said Singleton.” In Aven v. State, 77 Tex.Cr.R. 37 , 177 S. W. 82 , where Aven was tried as an accomplice to arson, the Court said: “The record shows that said principal had been convicted some time before the trial of appellant, and that in his case he testified, admitting that he had set fire to the house, and showing his guilt as principal.” Later in Espalin v. State, 90 Tex.Cr.R., 625 , 237

1970It was necessary for the state to make out a case against the principal before it could claim a conviction of appellant, and in our opinion said judgment of conviction was admissible in evidence against said Singleton.” In Aven v. State, 77 Tex.Cr.R. 37 , 177 S. W. 82 , where Aven was tried as an accomplice to arson, the Court said: “The record shows that said principal had been convicted some time before the trial of appellant, and that in his case he testified, admitting that he had set fire to the house, and showing his guilt as principal.” Later in Espalin v. State, 90 Tex.Cr.R., 625 , 237

1968The deed of trust under which foreclosure was had recites as follows: “The deed or deeds which shall be given by said Trustee to the purchaser or purchasers at such sale, shall be prima facie evidence of the truth of all the recitals therein as to default in the payment of said note, or of interest due thereon, or of the sums thereunder and hereunder due, the request to the said Trustee to sell, the advertisement or posting of such sale, the proceedings at such sale, the facts, if any, authorizing a substitute Trustee to act in the premises, and everything necessary to the validity of such sal

1968The deed of trust under which foreclosure was had recites as follows: “The deed or deeds which shall be given by said Trustee to the purchaser or purchasers at such sale, shall be prima facie evidence of the truth of all the recitals therein as to default in the payment of said note, or of interest due thereon, or of the sums thereunder and hereunder due, the request to the said Trustee to sell, the advertisement or posting of such sale, the proceedings at such sale, the facts, if any, authorizing a substitute Trustee to act in the premises, and everything necessary to the validity of such sal

1961“Owner: P C Barnes “Located on Kramer Lane.” 1 In construing an exclusive agency contract similar in terms to the above contract, the Supreme Court of Texas in Neece v. A. A. A. Realty Company, 159 Tex. 403 , 322 S.W.2d 597, 601 , stated: “Anyone of ordinary intelligence reading this agreement would know from its operative contractual clauses, * * * that the right to sell granted the broker was sole and exclusive and that regardless of who sold the property prior to 180 days from date (or a written cancellation of the contract thereafter), the broker would be entitled to five per cent of the s

1961“Owner: P C Barnes “Located on Kramer Lane.” 1 In construing an exclusive agency contract similar in terms to the above contract, the Supreme Court of Texas in Neece v. A. A. A. Realty Company, 159 Tex. 403 , 322 S.W.2d 597, 601 , stated: “Anyone of ordinary intelligence reading this agreement would know from its operative contractual clauses, * * * that the right to sell granted the broker was sole and exclusive and that regardless of who sold the property prior to 180 days from date (or a written cancellation of the contract thereafter), the broker would be entitled to five per cent of the s

1955Every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by motion or' exception in writing a'nd brought-to the attention of the Judge in'the trial court before the instruction or charge to the jury or, in a non-jury case, before the rendition of judgment, shall be deemed to have been waived by the party seeking reversal on such account; provided that this rule shall not apply as to any party against whom default judgment is rendered.” See, Douglass v. McLure, Tex.Civ.App., 254 S.W.2d 876 .

1953Gunn v. State, 95 Tex.Cr.R. 276 , 252 S.W. 172 ; Threadgill v. State, Tex.Cr.App., 239 S.W.2d 813 ; and Smith v. State, Tex.Cr.

1953Gunn v. State, 95 Texas Cr.

1953Gunn v. State, 95 Tex.Cr.R. 276 , 252 S.W. 172 ; Threadgill v. State, Tex.Cr.App., 239 S.W.2d 813 ; and Smith v. State, Tex.Cr.