Harvey v. State

• Court: Texas Civil Court of Appeals
• Writing for the Court: BATEMAN
• Citation: Harvey v. State, 389 S.W.2d 692 (Tex. Ct. App. 1965)
• Decision Date: 26 March 1965
• Docket Number: No. 16478,16478
• Petition History: writ ref'd n.r.e.
• Parties: Walter R. HARVEY et ux., Appellants, v. STATE of Texas et al., Appellees.

Page 692

389 S.W.2d 692

Walter R. HARVEY et ux., Appellants, v. STATE of Texas et al., Appellees.

No. 16478.

Court of Civil Appeals of Texas, Dallas.

March 26, 1965.

Rehearing Denied April 23, 1965.

McKool & McKool, and Bill Jones, Dallas, for appellants.

Henry Wade, Dist. Atty., A. D. Jim Bowie, Don R. Stodghill and Jerome E. Dawkins, Asst. Dist. Attys., Dallas, for appellees.

BATEMAN, Justice.

The State of Texas and County of Dallas condemned for highway purposes a portion of a tract of land owned by appellants Walter R. Harvey, et al. The jury found in response to special issues: (1) that the market value of the land taken was $18,440; (2) that the market value of the remainder of the land immediately before condemnation was $5,435, and (3) immediately after condemnation $3,675. The sole question presented for review is whether the trial court committed reversible error in admitting in evidence, and permitting the jury to take with them into the jury room, a certain chart known as State's Exhibit 16 and marked S-16.

The record filed in this court consists only of the transcript and a partial statement of facts containing only the statements of counsel and the court in connection with the introduction of the exhibit complained of and other charts. The exhibit complained of is a large card on which is printed in red crayon:

                        ED WEISS        S-16
                Part Taken--                      $18,440.00
                    Imp. -- $6000.00
                    Land -- 12440.00
                             --------
                   Per sq. ft. $1.10
                Remainder
                    Before-- $5435.00
                             --------
                    After -- 4675.00                 $760.00
                             --------
                Whole Property--
                    Before Taking                  23,875.00
                

Appellants state in their brief that this exhibit was prepared by counsel for appellees while their expert witness on values, Mr. Ed Weiss, was testifying and that the figures are those to which he testified as his opinion of the value of the land taken and the value of the remainder before and after condemnation. However, there is nothing in the record to this effect and, strictly speaking, in the absence of proper identification of the exhibit, it is not entitled to be considered by us. If we were to consider it we would nevertheless be compelled to hold that its admission in evidence and introduction into the jury room, in the light of the abbreviated record presented to us, did not constitute reversible error.

Although his only objection to the admission of the exhibit was that it was written by counsel for appellees and not by the witness Weiss, counsel for appellants now argues vigorously that to permit attorneys to make charts of their own witnesses' testimony and put them in evidence, so that they make be taken into the jury room and considered by the jury in their deliberations, is highly prejudicial because it informs the jury of the effect of their answers to special issues and if...