State v. Berry
| Decision Date | 21 July 1965 |
| Docket Number | No. 14359,14359 |
| Citation | 393 S.W.2d 723 |
| Parties | The STATE of Texas, Appellant, v. V. E. BERRY et ux., Appellees. |
| Court | Texas Court of Appeals |
Waggoner Carr, Atty. Gen., T. B. Wright, Watson C. Arnold, Carroll R. Graham, Asst. Attys. Gen., Austin, for appellants.
Park Street, James K. Gardner, Patrick J. Pape, San Antonio, for appellees.
The State of Texas as condemnor brought this suit against V. E. Berry and wife, Lydia J. Berry, of San Antonio, Bexar County, to condemn the fee simple title, save and except the oil, gas, sulphur and other minerals, to approximately 5.4968 acres of land abutting upon Highway 90 East, now known as Interstate Highway 10. The subject property is located about 4.5 miles east of the Bexar County Courthouse; it fronts about 695 feet on Highway 90, and is about 320 feet deep on Green Valley Drive, the westerly boundary, and about 337 feet deep on the easterly side. The most easterly point of the property is approximately 626 feet from the intersection of Highway 90 East and Loop 13. Highway 90, now known as Interstate Highway 10, has been broadened and much of it has been built upon the subject property, so that at the present time the situation has been greatly changed, and it was in this condition at the time of the trial. In this case it was the taking of an entire tract and there was no issue of damages to any remainder.
The defendants admitted that plaintiff had the right to condemn the property, and that all prerequisites had been complied with, thus the only question to be decided was the market value of the subject property at the time it was taken on September 13, 1962.
The jury found that the market value of the property was the sum of $178,545.00, the highest value testified to by any witness, and judgment was rendered accordingly; from which judgment the State of Texas has prosecuted this appeal.
After the jury had been impaneled but before any evidence had been introduced Mr. Park Street, leading counsel for the condemnees, proposed in open court and in the presence of the jury that the jury be sent, in charge of the court bailiff, to view the subject property, which request was not allowed by the trial court. The condemnor alleged that this was misconduct and moved for a mistrial, which was overruled by the court. It is contended that the overruling of this motion constituted reversible error.
The record shows that the following occurred in the presence of the jury, to-wit:
(Whereupon the jury left the courtroom.)'
The State then made the following motion for a mistrial, to-wit:
'Comes now Plaintiff, State of Texas, and after the Jury has been impaneled and sworn, and before the introduction of any evidence and moves the Court to declare a mistrial and secure another Jury panel for the following reasons:
The attorney for the landowner, in open Court and in the presence of the Jury arose, stated to the Court that, 'Unless it was objectionable by the State he desired that the Jury view the subject property,' and he further stated that the law was if there was no objection by the State it was proper for the Jury to view the subject property. In this particular case, as attorney for the landowner well knows, * * * possession of the subject property has already been taken, and the subject property is in fact under a portion of the new highway or a portion of the north service road thereof. Therefore, it would be impossible to view the subject property as it existed on or about September 13, 1962, the date of taking. The offer made by the landowner's attorney was made solely for the purpose of embarrassing the State and solely for the purpose of creating prejudice * * * in the minds of the Jury against the State, and leads the Jury to believe that the State, and the State only, is prohibiting them from seeing the subject property as it existed on the date of taking, and on the date of which they are to evaluate same. Such would tend to make the Jury believe that the State desires to hide from the Jury the condition of the property as of the date of taking, and would lead the Jury to believe the State is attempting to hide evidence from them and would, therefore, necessarily create prejudice against the State in the minds of the Jury.
Wherefore, premises considered, Plaintiff prays the Court declare a mistrial and secure another Jury panel from which a Jury may be selected in this case. Respectfully submitted.'
Thereafter, on the next morning, the following proceedings were had in the presence of the jury:
It was stipulated that a portion of the service road of Interstate Highway 10 had been constructed and now exists upon the subject property, thus it is apparent that the condemnees knew at the time the jury view was proposed that the subject property was not in its original form but had been changed by construction thereon of Interstate Highway 10. It appears that the trial judge spoke up in time to save the condemnor the embarrassment of having to object to the proposed jury view, but the trial judge did not take upon himself the full responsibility of denying the jury the privilege of viewing the property, he merely stated that the matter would be taken up out of the presence of the jury. When, in the presence of the jury the next morning, he granted the request of appellees to withdraw their request for a jury view, and instructed the jury as above stated, it could very well have created in the minds of the jury the impression that the matter had been taken up out of the presence of the jury, that appellant had refused to give its consent to a jury view, therefore, the only evidence the jury would receive would be from the witness chair. The judge expressed in no way that he disapproved of Mr. Street's conduct, but rather seemed to regret that they would be compelled to follow the rules of evidence. It appears to us that appellant was placed in a rather embarrassing position. The jury could very easily have concluded, but for the...
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