# Smith v. State

> Court of Appeals of Texas · December 29, 1972 · 490 S.W.2d 902

URL: https://www.frixlaw.com/law-library/cases/9662250

## Case

- **Full name:** Farrell M. SMITH, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Appeals of Texas
- **Decided:** December 29, 1972
- **Citations:** 490 S.W.2d 902; 1972 Tex. App. LEXIS 3053
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Nye, Young
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9662250

## Opinion text

OPINION AFTER MOTION FOR REHEARING
The State of Texas, appellee herein, has filed its motion requesting this Court to file findings of fact based upon facts which were alleged to have occurred during submission and oral argument of the case. The appellee contends that during oral argument they heard the attorney for the appellant waive his third point of error. Because of such purported announcement by him, the appellee did not argue or even mention in its oral argument its response or defense to this point. Cit *913 ing Rule 424, T.R.C.P. Answering appel-lee’s motion, appellant states that he did not waive his point of error number three. Anticipating appellant’s answer, appellee says that this makes a controverted issue of fact which occurred in the Court of Civil Appeals upon which this Court should make its findings of fact. (Rule 453, T.R.C.P.) Appellee’s motion requests that we reconcile this dispute so that only a question of law will appear in its application for writ of error to the Supreme Court. (Rule 476, T.R.C.P.). Appellee’s motion is without merit for a number of reasons.
Rule 424, which restricts arguments in the intermediate appellate courts to disputed points of law or fact, is permissive in nature. It does not require that every point of error be argued. As a practical matter many points of error are submitted on the briefs only and only the pertinent points are argued in the short time allotted in the intermediate court. Appel-lee’s brief answered the appellant’s brief on this particular (third) point of error.
The question of whether or not the appellant waived his third point of error is a procedural question and not a question of fact. Such a procedure could and should have been handled by motion filed by the parties during oral argument or subsequently by post submission motion. The appellee failed to take any procedural steps to bring this to the attention of the Court at the time of the alleged occurrence.
Appellee’s motion for this Court to file findings of fact under Rule 453, T.R.C.P. is inappropriate. This rule concerns fact findings occurring during the actual trial, not at the appellate level. The intermediate court has no court reporter. It does not function to find facts. As the Supreme Court stated in Wisdom v. Smith, 146 Tex. 420 , 209 S.W.2d 164 (1948) and restated in City of Beaumont v. Graham, 441 S.W.2d 829 (Tex.Sup.1969) “courts of civil appeals have no jurisdiction to make original findings of fact in cases on appeal; they can only ‘unfind’ facts. 38 Texas L. Rev. 361, at 368.” Additionally, appellee’s motion was filed too late to give us jurisdiction to act. It was filed after we overruled its motion for rehearing. Such a motion must be made within the time prescribed under Rule 453, T.R.C.P.
Appellee’s motion for filing of findings of fact is overruled.
YOUNG, J., not participating.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9662250. Public record. Not legal advice.