519 S.W.2d 443 (1975)
J. L. LAPP, Appellant,
v.
The STATE of Texas, Appellee.
No. 49436.
Court of Criminal Appeals of Texas.
February 12, 1975.
*445 Seferino C. Dominguez, Dallas, for appellant.
Henry Wade, Dist. Atty., John H. Hagler, James Paul Barklow, Jr., and John Howard Stauffer, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION
GREEN, Commissioner.
In a trial before a jury, appellant was convicted of unlawful delivery of a dangerous drug; to-wit, barbiturate. Punishment was assessed at five years.
The record reflects that in November, 1972, appellant was a Doctor of Osteopathic Medicine, with an office in Garland. Dolores Simmons was his employee, serving as receptionist in his office.
Dennis Vickery, an undercover agent with the Department of Public Safety, testified that he became acquainted with appellant on November 10, 1972. On November 24, 1972, Vickery had a telephone conversation with appellant concerning "reds" and "blacks,"[1] which resulted in Vickery making an appointment with appellant in the latter's office to buy a large amount of "reds" and "blacks" for $5,000.00. On November 25th, Vickery went to appellant's office, and was ushered into the inner office by Dolores Simmons. Appellant and Vickery, in Simmons' presence, agreed that appellant would sell to Vickery 9,800 "reds" and 6,100 "blacks" for $5,000.00. Vickery tendered that sum to appellant, who told him that the transaction should not be completed in the office and instructed Vickery to go with Simmons, who would deliver him the capsules, and receive the money. When Vickery stated that $5,000.00 was a large sum to be delivered to someone else, appellant stated that he trusted her and that Vickery should not be concerned about that.
Vickery followed Simmons to a lumberyard where her car was parked. They got in her car, and he handed her $5,000.00, and she delivered to him a box which contained 6,100 black capsules in 16 glass bottles and 9,800 red capsules in 26 plastic bottles. In their conversation about the transaction, the following remarks, among others, were testified to by Vickery:
"Q (By Mr. Barklow): Would you tell us, please, what that conversation was?
"A I handed her the money, and asked her if she wanted to count it, and she said no, that she didn't need to count it. If it wasn't all there, she would call the Garland police department and tell them I stole a bunch of drugs from Dr. Lapp's office.
"Q All right. And did she make some other statements regarding the money?
"A Yes, sir. I said, `This is a lot of money and I am going to make sure that it goes to the right place.' She said, `Don't worry. The doctor will get his money. He always does.'"
*446 George Taft, a duly qualified chemist with the Department of Public Safety, testified that, on chemical analysis, the "blacks" or black capsules contained amphetamines and that the "reds" or red capsules contained a barbituric acid derivative, same being a barbiturate.
The appellant did not testify, and offered no witnesses.
In his third ground, appellant contends that the court erred in permitting Vickery to testify concerning the conversation he had with Dolores Simmons out of the presence of appellant.
In his first ground, appellant alleges error in the court's failure, over objection, to give a limiting instruction to the jury regarding the hearsay testimony of the conversation between Vickery and Simmons.
Vickery's testimony established the existence of a conspiracy between appellant and Dolores Simmons in connection with the commission of this offense, and that the conversation between Dolores and Vickery occurred during the furtherance of the conspiracy. As stated in Helms v. State, Tex.Cr.App., 493 S.W.2d 227, 230, "Each statement or act of a co-conspirator up until the time the object of the conspiracy is completed is admissible . . . ." Citing authorities.
See, also, Drakes v. State, Tex.Cr. App., 505 S.W.2d 892; Phelps v. State, Tex.Cr.App., 462 S.W.2d 310; Saddler v. State, 167 Tex.Cr.R. 309, 320 S.W.2d 146; Sapet v. State, 159 Tex.Cr.R. 620, 266 S. W.2d 154.
As to the complaint that no limiting instructions were given to the jury, the complained of statements were a part of the res gestae of the offense, and no limiting instructions were necessary. 31 Tex. Jur.2d, P. 725, Instructions, § 149; Arivette v. State, Tex.Cr.App., 513 S.W.2d 857, 864.
The first and third grounds of error are overruled.
In his second ground, appellant avers that the court erred in failing to include in the charge to the jury a definition of the terms barbiturate, practitioner, patient, and amphetamines.
No mention of the terms practitioner, patient, and amphetamines was made in the court's charge. No definition of those terms was necessary.
The court charged that "[o]ur statute provides that it shall be unlawful for any person to deliver any dangerous drug and that any person violating this statute shall be punished. It also provides that barbiturate is a dangerous drug."
The charge then provided that if the jury found beyond a reasonable doubt that appellant did deliver to Dennis Vickery a dangerous drug, to-wit: barbiturate, on November 25, 1972, as charged, it should find him guilty, and unless it so found beyond a reasonable doubt, or if it had a reasonable doubt thereof, it should find him not guilty.
No definition of barbiturate was included. Appellant objected in writing to the failure to define said term, which objection was overruled.
This case was tried and the conviction obtained under the provisions of Article 726d, V.A.P.C., as that article read at the time of the commission of the offense in November, 1972. Article 726d, Dangerous Drugs, purported, in Section 1 thereof, to regulate and control "the handling, sale and distribution of `dangerous drugs" as defined in this Act." Section 2(a)(1) provided:
"Sec. 2. For the purposes of this Act:
"(a) The term `dangerous drug' means any drug or device unsafe for self-medication, except preparations of drugs defined in Subdivisions (a)(6), (a)(7), (a)(9), and (a)(10) hereof, designed for the purpose of feeding or treating animals (other than man) or *447 poultry, and so labeled, and includes the following:
"(1) Any barbiturate or its compounds, mixtures or preparations. Barbiturate includes barbituric acide derivatives or any salt of a derivative of barbituric acid."
Other than as above shown, the term "barbiturate" was not defined in Article 726d.
Chemist George Taft testified that State's Exhibits 16 through 32 contained a barbiturate. The evidence established that the barbiturates in said exhibits were delivered to Agent Vickery by Dolores Simmons under the circumstances heretofore detailed. The testimony of the chemist Taft was uncontroverted, and the evidence did not raise any of the defenses provided in Article 726d.
In view of the language in the applicable statute declaring a barbiturate to be a dangerous drug, which statute does not define the term barbiturate, but merely states by the use of its own term that barbiturate includes derivatives and salts of derivatives of barbituric acid, the court did not err in failing to include a definition of barbiturate in its charge.
Appellant strongly relies on this Court's holding in Venzor v. State, 162 Tex.Cr.R. 175, 283 S.W.2d 397, decided in 1955, in which the judgment was reversed because of the omission of the definition of barbiturate. As stated in the opinion, the prosecution in Venzor was under Article 726c, V.A.P.C., then in existence, but repealed prior to the commission of the instant offense. This article was not applicable generally to dangerous drugs, but regulated and controlled "the handling, sale and distribution of barbiturates, as defined in this Act." It specifically defined the term "barbiturate" as meaning "the salts and derivatives of barbituric acid, also known as malonyl urea, having hypnotic or somnifacient actions, and compounds, preparations and mixtures thereof." At that time, Article 726b, V.A.P.C., since repealed, provided that an amphetamine was "commonly called" a barbiturate. See opinion in Venzor, supra; also see 3 Branch's Ann.Pen. Code, Sec. 28, p. 379. Since amphetamines were also delivered by the defendant in Venzor, this Court recognized that an amphetamine was not a derivative of barbituric acid, and reasoned that without the benefit of the statutory definition of barbiturate the jury could convict the defendant for delivery of amphetamines "though he was not charged with such in the complaint and information."
As stated above, appellant in the instant case was prosecuted under the Dangerous Drugs Act, Article 726d, enacted subsequent to the decision of Venzor, supra. This Act specifically named barbiturates and the derivatives thereof as a dangerous drug, without further definition. Venzor, supra, is not applicable.
The second ground of error is overruled.
In his fourth ground, appellant contends that the court erred in denying his First Motion for a Continuance.
On the day the case was called for trial, appellant presented to the court his sworn motion for a continuance, based upon the absence of a material witness. A hearing was had on said motion, after which it was denied. The case proceeded to trial.
Thereafter, in due time, appellant filed his motion for a new trial. However, no complaint was made therein of the alleged error of the court in denying the motion for continuance. There was no affidavit of the missing witness, and no showing made in connection with the motion for a new trial that the witness would actually testify to facts favorable to appellant.
In Fields v. State, 495 S.W.2d 926, this Court said:
"[1] It is not necessary to pass upon the inadequacy of the motion for continuance under Article 29.07, Vernon's Ann.C.C.P., because there is no motion *448 for new trial alleging the failure of the court to grant a continuance. A motion for new trial based upon the overruling of the motion for continuance because of the absence of a witness should have an affidavit of the missing witness or a showing under oath from some source that the witness would actually testify to the facts set out in the motion for new trial. See 1 Branch's Ann.P.C.2d, Section 357. Rangel v. State, Tex.Cr.App., 463 S.W.2d 203. See Harris v. State, Tex.Cr.App., 450 S.W.2d 629; Thames v. State, Tex.Cr.App., 453 S.W.2d 495."
See, also, Article 29.06, Vernon's Ann.C. C.P.; Allen v. State, Tex.Cr.App., 505 S. W.2d 923; Spencer v. State, Tex.Cr.App., 503 S.W.2d 246; McCloud v. State, Tex. Cr.App., 494 S.W.2d 888; Haggerty v. State, Tex.Cr.App., 491 S.W.2d 916.
The fourth ground of error is overruled.
In the fifth ground, appellant complains of the following argument of the prosecuting attorney at the guilt stage when, in referring to the State's witness Vickery, the undercover agent, he stated:
"I tell you that man's testimony came from that witness stand, and you can be the judges of it. You watched the man. You know that this isn't the only case he has ever worked; that he is out there working for you right now. He has seen many people and been involved in much investigation, both before and since this case. This is just one case that he got summoned on Monday when we were getting ready to go to trial up here, and remember as best he could, and I thought he did a pretty good job. It sounded honest to me, but that's for you to judge.
"MR. HENDLEY: To which we will object at (sic) to the approval of his honesty.
"THE COURT: Overruled."
The record reflects that defense counsel, in his talk to the jury, repeatedly made references to the untrustworthiness of Vickery, and attacked undercover agents generally. The remarks of the prosecuting attorney were invited. No error is shown. Chapman v. State, Tex.Cr. App., 503 S.W. 237; Sennette v. State, Tex.Cr.App., 481 S.W.2d 827.
In his sixth ground, appellant claims error in the following statement of the State in its argument to the jury at the guilt stage: "If we can stop the source of thisHow do these young people get this stuff?"
Appellant's objection was sustained, and the jury were instructed to disregard. Motion for mistrial was overruled. No reversible error is shown. Hunt v. State, Tex.Cr.App., 511 S.W.2d 954.
Appellant contends, in his seventh ground, that the court erred in failing to give a charge on accomplice witness regarding the res gestae statements of the accomplice Dolores Simmons. She did not testify as a witness, and statements introduced in evidence through the testimony of State's witness Vickery were res gestae of the offense. No charge on accomplice witness was required.
In his eighth ground, appellant complains of prejudicial error in the failure of the court to grant a mistrial when the prosecutor "arraigned the appellant in the presence of the jury."
Outside the presence of the jury, the defendant was arraigned in accordance with Articles 26.01 et seq., V.A.C.C.P. Then, when the prosecutor was reading the indictment to the jury, and as he reached the name "J. L. Lapp" he inquired of appellant: "Is that your name?" Appellant answered: "Yes, sir." Appellant's counsel then objected "to any arraignment in the presence of the jury." The objection was sustained, and the jury were instructed to disregard the incident. Motion for mistrial was overruled.
It was error for the State to make the inquiry of appellant in the presence of the *449 jury. However, in view of the instruction of the court, no reversible error is shown. Minafee v. State, Tex.Cr.App., 482 S.W.2d 273; Boykin v. State, Tex.Cr.App., 487 S. W.2d 128.
There being no reversible error, the judgment is affirmed.
Opinion approved by the Court.
NOTES
[1]  "Reds" or "Redbirds" are shown by the evidence to be "downers" or depressants. "Blacks" or "Black Mollies" are "uppers" or central nervous stimulants. The evidence shows both to be dangerous drugs as same were defined in Article 726d, Vernon's Ann. P.C., at the time of this offense.


242 S.W.3d 298 (2006)
Scott Randall ROSS, Appellant,
v.
STATE of Arkansas, Appellee.
No. CA CR 05-1378.
Court of Appeals of Arkansas.
November 1, 2006.
*300 The Law Offices of Ables, Howe & Standridge, PLLC, by: J. Brent Standridge, Little Rock, AR, for appellant.
Mike Beebe, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., Little Rock, AR, for appellee.
SAM BIRD, Judge.
Appellant Scott Randall Ross was convicted by a jury of first-degree murder and using a firearm during the commission of a felony. He was sentenced to consecutive terms of forty and fifteen years in the Arkansas Department of Correction. Ross raises four points on appeal: (1) that the trial court erred in declining to instruct the jury regarding his proffered jury instruction concerning mental state; (2) that the trial court erred in permitting his prior bad acts to be admitted into evidence; (3) that the trial court erred in ruling that communications between Ross and his pastor were not privileged under Ark. R. Evid. 505; and (4) that the trial court erred in permitting marital communications to be admitted into evidence in violation of Ark. R. Evid. 504. We affirm.
On February 23, 2004, Ross was charged with the first-degree murder of Inocencio Cruz. According to the felony information, Ross was subject to an additional term of imprisonment for employing a firearm in the commission of a felony offense.
Prior to trial, Ross filed a motion to invoke religious privilege under Ark. R. Evid. 505 based on statements made to his friend Steve Long, who, like Ross, was an ordained minister. The trial court denied this motion after a hearing on the matter. Ross also filed a motion to invoke the husband-wife privilege pursuant to Ark. R. Evid. 504. Although the trial court concluded that certain communications between Ross and his wife were confidential,[1] it ruled that the confidentiality did not include Ross's act of handing a gun and a knife over to his wife on the night that Cruz was killed.
Ross made other motions prior to trial, including a motion in limine to prevent the State from asking witness Craig Adams about a cut on Ross's finger. The court granted this motion. Ross also moved to exclude evidence that he had previously carried a gun into a local bar. The court granted this motion as well, excluding any reference to guns aside from "those that have a causal relationship with this incident."
The evidence at trial revealed that, on the evening of January 17, 2004, a red sport-utility vehicle (SUV) rear-ended a vehicle being driven by Ross at the corner of Summer and Hobson in Hot Springs. According to witnesses, Ross became agitated after the accident and shot the driver of the red SUV.
Over objection from Ross, Ross's friend and fellow minister Steve Long testified that he was a disc jockey at Lucky's Bar in Hot Springs, and he saw Ross at Lucky's around 6:00 p.m. on January 17, 2004. According to Long, Ross appeared to have a cut on his finger. Long said that Ross left Lucky's around 9:30 p.m. and returned around thirty to forty minutes later. At that time, Ross told Long that "there was an accident and a gentleman had smashed the back of [Ross's] car and . . . he had *301 shot him." Long said Ross mentioned that he had shot the man five times and that the man might have been the "Antichrist."
Ross testified extensively about what happened on the night in question, explaining that he was drinking with friends at Lucky's and later obtained a gun at his mother's pawn shop with the intention of committing suicide. After he left the pawn shop, his vehicle was rear-ended by another vehicle. He said he remembered getting out of his car and talking to the other driver, but he did not remember exactly what happened. He claimed that he returned to Lucky's to talk to Long in "confidence," and he admitted that he told Long that he had killed a "Hispanic man or a Mexican."
Ross said that he then called his wife[2] and she came to pick him up. He said that he admitted to her that he had killed a "Mexican fella" and had shot him five times. Ross said that his wife dropped him off at a gas station and that he ended up at her house later in the evening. At that point, she asked him for the gun in his possession and for his pocket knife, because she knew that he always carried a pocket knife. Ross said that he gave these items to her. Ross was later arrested.
Following Ross's testimony at trial, the State cross-examined him about whether he had ever carried a gun into Lucky's before the night of the shooting. Ross objected, but his objection was overruled after the State argued that it was proper cross-examination based on Ross's testimony concerning his possession of a gun. The State also cross-examined Ross about what he had said to his wife after the shooting. Ross objected based on the court's earlier determination that these communications were confidential, but the State argued that the privilege had been waived by Ross's testimony. The court overruled Ross's objection.
Two of Ross's witnesses, Kim Ocker and Jay Schapiro, testified that Ross was not a violent individual. The State then provided a rebuttal witness, Craig Adams, who testified that, shortly before the murder, Ross cut his finger in a confrontation with some people and had slashed their tires.
The jury was instructed that the State had the burden of proof beyond a reasonable doubt on every element of every charge that it considered; the jury was also instructed on first-degree murder, second-degree murder, and manslaughter. The jury returned a verdict of guilty on the first-degree murder charge and also found that Ross employed a firearm as a means of committing the murder. On September 23, 2005, the trial court entered a judgment and commitment order convicting Ross of first-degree murder with a felony-firearm-sentence enhancement. He was sentenced to consecutive terms of forty and fifteen years in the Arkansas Department of Correction.

Jury Instruction on Mental State
On appeal, Ross first contends that the trial court erred in refusing to instruct the jury concerning his proffered jury instruction on mental state. At the close of the State's case, Ross submitted the following instruction, which is a modified version of AMI Crim. 610:
EVIDENCE THAT SCOTT ROSS SUFFERED FROM A MENTAL DISEASE OR DEFECT MAY STILL BE CONSIDERED BY YOU IN DETERMINING WHETHER SCOTT ROSS HAD THE REQUIRED MENTAL *302 STATE TO COMMIT THE OFFENSE CHARGED OR MURDER IN THE SECOND DEGREE AND MANSLAUGHTER.
Our supreme court has held that a trial court should not use a non-model instruction. unless there is a finding that the model instruction does not accurately reflect the law. Calloway v. State, 330 Ark. 143, 953 S.W.2d 571 (1997). Here, Ross claims that the proffered instruction essentially tracks Ark.Code Ann. § 5-2-303, which generally provides that evidence that a defendant suffered from a mental disease or defect is admissible to prove whether he had the kind of culpable mental state required for commission of the offense charged.
Ross argues that the court should have allowed the modified instruction because "in the context of this case, it was important for the jury to know, even though [Ross] was not asserting mental disease or defect as an affirmative defense to any crime, that [they] could consider evidence of mental disease or defect in determining whether [Ross] had the requisite mental state necessary for the lesser-included offenses." He asserts that, based on the evidence, there was a jury question as to whether his mental state was diminished by mental disease or defect so that, while not constituting an affirmative defense, it could have shown that his mental state was less than that required for a first-degree murder conviction. He also claims that if the jury had been properly instructed in this case, then they could have convicted him of murder in the second degree or manslaughter.
In Robinson v. State, 269 Ark. 90, 95, 598 S.W.2d 421, 425 (1980), our supreme court rejected a similar argument, stating as follows:
Appellant also contends that he was entitled to a specific instruction informing the jury that he had placed in issue his mental capacity to form the kind of mental state necessary to establish the commission of the alleged offense. Appellant grounds his contention on Ark. Stat.Ann. § 41-602 (Repl.1977) [now codified as Ark.Code Ann. § 5-2-303] which permits the introduction of evidence of mental disease or defect to determine whether the defendant possessed the kind of culpable mental state required for the commission of the crime charged. However, we do not construe Ark.Stat.Ann. § 41-602 (Repl.1977) as requiring an instruction of this nature. The statute simply clarifies any issue concerning the admissibility of mental disease evidence when it is less than persuasive in connection with an affirmative defense of insanity. Moreover, the essence of appellant's proffered instruction is effectively given when the court instructs the jury on the burden of the state to prove beyond a reasonable doubt each element of the offense, especially when such instruction is accompanied by an instruction on lesser included offenses.
In this case, as the State points out, the jury was instructed that the State had the burden of proof beyond a reasonable doubt on every element of every charge that it considered. The jury was also instructed on first-degree murder, second-degree murder, and manslaughter. In light of Robinson, supra, we reject Ross's argument and affirm on this point.

Prior Bad Acts
Ross next contends that the trial court erred in permitting certain prior bad acts to be admitted into evidence. Specifically, he argues that "evidence of possessing firearms prior to and after the night in question and evidence that he was involved in a confrontation resulting in a cut to his *303 finger was offered to prove that he was of bad character and it was not independently relevant to the case." Ross claims that this evidence was introduced order to make him "look bad in front of the jury" and, thus, should not have been admitted.
Trial courts have broad discretion in deciding evidentiary issues, and their decisions are not reversed absent an abuse of discretion. Shields v. State, 357 Ark. 283, 166 S.W.3d 28 (2004). In Cook v. State, 345 Ark. 264, 270, 45 S.W.3d 820, 823-24 (2001), our supreme court discussed Ark. R. Evid. 404(b), as follows:
Arkansas Rule of Evidence 404(b) states:
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Evidence offered under Rule 404(b) must be independently relevant, thus having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less Probable than it would be without the evidence. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999). The list of exceptions to inadmissibility in Rule 404(b) is not an exclusive list, but instead, it is representative of the types of circumstances under which evidence of other crimes or wrongs or acts would be relevant and admissible. Williams v. State, 343 Ark. 591, 602, 36 S.W.3d 324, 331 (2001).
In Spohn v. State, 310 Ark. 500, 503, 837 S.W.2d 873, 874-75 (1992), Our supreme court further discussed Rule 404(b):
It is true as a general rule that proof of other' crimes or bad acts is never admitted when its only relevancy is to show that the accused is a person of bad character. Ark. R. Evid. 404(b); see also Sweatt v. State, 251 Ark. 650, 473 S.W.2d 913 (1971); Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). However, in McCormack on Evidence, the following statement of the law is made relative to character testimony:
Ordinarily, if the defendant chooses to inject his character into the trial in this sense, he does so by producing witnesses who testify to his good character. By relating a personal history supportive of good character, however, the defendant may achieve the same result. Whatever the method, once the defendant gives evidence of pertinent character traits to show that he is not guilty, his claim of possession of these traits-but only these traits-is open to rebuttal by cross-examination or direct testimony of prosecution witnesses.
McCormack, Vol. I, § 190, p. 816 (1992).
Here, Ross's testimony that his wife requested the gun that he possessed and the pocket knife that he "always" carried opened the door to cross-examination by the State regarding whether he habitually possessed a weapon. Furthermore, Ross's testimony concerning his lack of intent to commit a violent act, together with the testimony by two of Ross's witnesses that he was not a violent person, invited' inquiry into whether Ross cut his finger during an angry outburst shortly before the murder during which he slashed a vehicle's tire and injured himself We affirm on this point.

Rule 505 privilege
As his third point, Ross contends that the trial court erred in ruling that communications between him and his pastor were not privileged under Ark. R. *304 Evid. 505. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual advisor. Ark. R. Evid. 505(b); Bonds v. State, 310 Ark. 541, 837 S.W.2d 881 (1992). In reviewing a trial court's ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances and reverse only if the decision is clearly against the preponderance of the evidence. Bonds, supra.
Here, Ross's friend Steve Long, an ordained minister,[3] testified that Ross was at Lucky's Bar around 6:00 p.m. on the evening of the shooting. Long said that Ross left around 9:30 p.m., then returned thirty to forty minutes later and told Long that "there was an accident and a gentleman had smashed the back of his car and that [Ross] had shot him." Long said that Ross mentioned that the man he had shot might be the "Antichrist."
It is the State's position that Long was not acting in the role of a spiritual counselor when Ross communicated with him, but was instead acting as a friend at a bar, In Bonds, supra, our supreme court addressed the issue of whether certain communications between a defendant and a witnesswho was defendant's employer, brother-in-law, and friendwere subject to the religious privilege under Ark. R. Evid. 505. The court in Bonds found that there was no evidence of ongoing counseling between the witness and the defendant that the witness had agreed to keep confidential and concluded that the communications were not made to the witness in his capacity as a spiritual advisor. Id. Similarly, here, although Long was an ordained minister, he was also Ross's friend, and there was no evidence that Ross had communicated to Long with the expectation that Long would keep the communication confidential. We therefore hold that the trial court's decision concerning Ark. R. Evid. 505 was not clearly against the preponderance of the evidence.
Ross additionally argues that the admission of his communication to Long led to his (Ross's) testifying at trial; however, he offers no supporting authority as to why this would require reversal. We therefore will not address this argument on appeal. See Hanks v. Sneed, 366 Ark. 371, 235 S.W.3d 883 (2006) (refusing to consider appellant's argument where appellant offered no convincing argument or convincing authority to support his claim). Moreover, any error in admitting the testimony was harmless, because Ross himself testified about what he said to Long. We therefore affirm on this point.

Rule 504 privilege
Ross's final point is that the trial court erred in permitting marital communications to be admitted into evidence in contravention of Ark. R. Evid. 504. Specifically, Ross claims that the State should not have been permitted to cross-examine him about a statement to his wife on the night of the shooting that he was "going to take money from a Mexican," because he did not specifically testify to this.
Rule 504(b) states that an accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse. However, as the State points out, Ark. R. Evid. 510 states that a person waives this privilege if he "voluntarily discloses or consents to disclosure of any significant part of the privileged matter." At trial, Ross testified extensively about what he said to his wife *305 on the night of the shooting. This was clearly a voluntary disclosure of a "significant part of the privileged matter" under Rule 504. We therefore agree with the State that Ross's testimony constituted a waiver of the Rule 504 privilege in this case. Furthermore, Ross could not use the trial court's initial ruling to exclude the marital communications as a means to commit perjury by way of a defense. The State was certainly entitled to cross-examine Ross as to his version of what he disclosed to his wife on the night of the shooting. See Rooks v. State, 250 Ark. 561, 466 S.W.2d 478 (1971) (holding that it was permissible for the State to test the credibility of appellant's trial testimony by cross-examination). We therefore affirm on this point.
As for Ross's argument that the trial court erred in ruling that his handing of the gun and knife to his wife was not protected by the Rule 504 privilege, we hold that Ross has failed to demonstrate any prejudice as a result of this. There was other overwhelming evidence of Ross's guilt in this case, including eyewitness testimony that Ross committed the murder and evidence that Ross admitted to both his wife and his friend Steve Long that he committed the murder. Because we can not see how Ross was prejudiced by the trial court's decision on this matter, we will not reverse. See Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000) (recognizing that no prejudice results where the evidence erroneously admitted was merely cumulative, and an appellate court will not reverse for harmless error in the admission of evidence).
For these reasons, we affirm.
GLADWIN and ROAF, JJ., agree.
NOTES
[1]  The court's specific ruling was that Ross was entitled to the Rule 504 privilege for "whatever communication was made" by Ross to his wife "during [a] van ride" on the night of the incident in question.
[2]  According to Ross's brief on appeal, Ms. Ross had filed for divorce, but the matter was still pending.
[3]  According to testimony, Long obtained an honorary degree from the Universal Life Church via the Internet in March 2003.


MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                              Aug 13 2019, 9:25 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Valerie K. Boots                                          INDIANA DEPARTMENT OF
Danielle L. Gregory                                       CHILD SERVICES
Marion County Public Defender Agency                      Curtis T. Hill, Jr.
– Appellate Division                                      Attorney General of Indiana
Indianapolis, Indiana
                                                          Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana
                                                          ATTORNEYS FOR APPELLEE
                                                          CHILD ADVOCATES, INC.
                                                          DeDe K. Connor
                                                          Indianapolis, Indiana

                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              August 13, 2019
Parent-Child Relationship of                              Court of Appeals Case No.
S.B., B.L., Elv.L, Eli.L., and                            19A-JT-224
A.L. (Minor Children) and                                 Appeal from the Marion Superior
C.L. (Mother),                                            Court
                                                          The Honorable Marilyn A.
Appellant-Respondent,
                                                          Moores, Judge
        v.                                                The Honorable Larry Bradley,
                                                          Magistrate

Court of Appeals of Indiana | Memorandum Decision 19A-JT-224 | August 13, 2019                 Page 1 of 7
      Indiana Department of Child                               Trial Court Cause Nos.
      Services,                                                 49D09-1805-JT-577
                                                                49D09-1805-JT-578
      Appellee-Petitioner,                                      49D09-1805-JT-579
                                                                49D09-1805-JT-580
      And                                                       49D09-1805-JT-581

      Child Advocates, Inc.,
      Appellee-Guardian ad Litem.

      Mathias, Judge.

[1]   The Marion Superior Court terminated the parent-child relationship of C.L.

      (“Mother”) and her five children, S.B., B.L., Elv.L., Eli.L., and A.L. on

      December 14, 2018. Mother argues she was entitled to dismissal of the

      termination petition because the factfinding hearing was outside the statutory

      parameters of Indiana Code section 31-35-2-6. We affirm.

                                  Facts and Procedural History

[2]   On May 27, 2016, all five children were adjudicated Children in Need of

      Services (“CHINS”) and placed in foster homes. Mother was ordered to

      successfully complete services including home-based therapy and a domestic

      violence assessment. Mother improved, and the children progressed in therapy

      throughout 2017. On August 2, 2017, the children were placed with Mother in

      temporary in-home trial visitation (“TTV”). The children were again removed

      from Mother’s care in September 2017 because of a variety of concerns

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-224 | August 13, 2019     Page 2 of 7
      including the lack of utilities in the home, inappropriate discipline, domestic

      violence and Mother’s non-compliance with drug screens. The children’s

      providers noted that the children regressed during TTV and many of their

      problematic behaviors reappeared. Tr. pp. 37–38, 171, 176. After the children

      were removed, Mother was noncompliant and did not participate in case

      management to address her issues of housing, employment, parenting skills,

      healthy relationships, and the children’s trauma. The Marion County

      Department of Children Services (“MCDCS”), Guardian ad Litem, and other

      providers did not recommend resuming Mother’s visitation with the children,

      and the placement plan changed from reuniting the family to adoption. Ex.

      Vol., Petitioner’s Ex. 30.

[3]   On May 13, 2018, MCDCS filed petitions for the involuntary termination of the

      parent-child relationship for each child. Appellant’s App. Vol II, pp. 50–53,

      Appellant’s App. Vol. III, pp. 2–13. Mother requested a mediation date and a

      factfinding hearing date at a pre-trial hearing on August 3, 2018, eighty days

      after MCDCS filed the termination petitions. Appellant’s App. Vol. II, p. 84.

      The court scheduled mediation for October 1, 2018, and set the factfinding

      hearing for December 4 and 11, 2018. Id. at 83-84. There is no indication that

      Mother objected to the hearing dates set.

[4]   Mediation was rescheduled for November 7, 2018, 176 days after MCDCS filed

      the termination petitions. Id. at 92. No agreement was reached in mediation,

      and the factfinding hearing began December 4, 2018, 210 days after the

      termination petitions were filed. Id. at 97.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-224 | August 13, 2019   Page 3 of 7
[5]   At the beginning of the December 4 hearing, Mother orally requested dismissal

      of the termination matter, arguing the hearing was beyond the statutory limit of

      180 days after the petitions were filed. Tr. p. 4. The trial court denied the

      motion.

[6]   The trial court issued findings of fact and terminated the parent-child

      relationship as to all five children. Mother does not challenge the findings and

      conclusions of the trial court. Mother solely appeals the trial court’s denial of

      her motion to dismiss.

                                     Discussion and Decision

[7]   Indiana Code section 31-35-2-6 specifies the timeline for conducting factfinding

      hearings in parental rights termination proceedings. The statute provides:

              (a) Except when a hearing is required after June 30, 1999, under
              section 4.5 of this chapter, the person filing the petition shall
              request the court to set the petition for a hearing. Whenever a
              hearing is requested under this chapter, the court shall:

                       (1) commence a hearing on the petition not more than
                       ninety (90) days after a petition is filed under this chapter;
                       and

                       (2) complete a hearing on the petition not more than one
                       hundred eighty (180) days after a petition is filed under
                       this chapter.

              (b) If a hearing is not held within the time set forth in subsection
              (a), upon filing a motion with the court by a party, the court shall

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-224 | August 13, 2019    Page 4 of 7
               dismiss the petition to terminate the parent-child relationship
               without prejudice.

       I.C. § 31-35-2-6. Here, the factfinding hearing commenced 210 days after the

       termination petitions were filed and concluded 217 days after the petitions were

       filed. Mother asserts she is entitled to dismissal of the petitions due to the

       untimeliness of the hearings and that the failure to dismiss denied her right to

       due process. Appellant’s Br. p. 14.

[8]    The interpretation of a statute is a question of law, which is reviewed de novo.

       Matter of N.C, 83 N.E.3d 1265, 1267 (Ind. Ct. App. 2017) (citing In re Adoption of

       M.L., 973 N.E.2d 1216, 1223 (Ind. Ct. App. 2012)).

[9]    The State argues that Mother acquiesced to the hearing date and thus waived

       her right to challenge the setting of the factfinding hearing date, even though it

       fell outside the statutory 180 days. Appellee’s Br. at 15. There is no record of

       Mother objecting to the timeliness of the dates set at the August 3, 2018 pre-trial

       hearing.

[10]   This matter is directly addressed in Matter of N.C., where the court determined

       the parents waived the right to dismissal for untimeliness by requesting a

       continuance of a scheduled hearing date, and then agreeing the date “sound[ed]

       good.” 83 N.E.3d at 1267.1 In the present case, Mother also agreed to the

       1
        Mother attempts to distinguish the present case from Matter of N.C., stating that she requested the hearing
       date, not MCDCS; her counsel was unaware of the close deadline or that the matter was being scheduled
       outside of the deadlines; and her counsel did not request a continuance of the proceedings. However, Mother

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-224 | August 13, 2019                   Page 5 of 7
       mediation and hearing dates set on August 3, 2018. Her assent to the

       factfinding hearing dates constitutes a waiver of her right to object to the

       timeliness of the hearing.

[11]   The State also argues that Mother failed to meet the requirements of Indiana

       Code section 31-35-2-6(b) because she orally moved for dismissal at the outset

       of the factfinding hearing and failed to file a motion for dismissal. The court in

       Matter of N.C. determined the plain language of the statute contemplates the

       filing of a motion and that orally moving for dismissal does not satisfy the

       requirements of subsection (b). 83 N.E.3d at 1267.2 Mother’s failure to submit a

       written motion for dismissal waives her right to challenge the court’s denial.

[12]   Mother’s failure to object to the mediation and factfinding hearing dates set at

       the pre-trial hearing on August 3, 2018 constitutes a waiver of the right to

       challenge the factfinding hearing date, even though it fell outside the statutory

       180 days. Mother further failed to preserve an issue for appellate review

       through her failure to submit a written motion to dismiss. Mother can be

       afforded no relief on this appeal.

       fails to develop these arguments any further. “Each contention must be supported by citations to the
       authorities, statutes, and the Appendix or parts of the Record on appeal relied on, in accordance with Rule
       22.” Ind. Appellate Rule 46(A)(8)(a). Accordingly, we consider them waived for failure to state a cogent
       argument. See In re Adoption of M.S., 10 N.E.3d 1272, 1282 (Ind. Ct. App. 2014) (citing Ind. Appellate Rue
       46(A)(8)(a)).
       2
        Mother argues that her due process rights were violated by the untimeliness of the factfinding hearing.
       However, her assent to the factfinding hearing dates and failure to submit a written motion to the trial court
       waive her due process arguments. Mother further failed to show how she was prejudiced by this delay in any
       way.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-224 | August 13, 2019                     Page 6 of 7
                                                 Conclusion

[13]   Mother agreed to the setting of the factfinding hearing date outside the statutory

       parameters and failed to submit a written motion to dismiss the termination

       proceedings. She thus preserved no issue for appellate review under Indiana

       Code section 31-35-2-6.

[14]   Affirmed.

       May, J., and Brown, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-224 | August 13, 2019   Page 7 of 7


                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-14-00284-CR

                                        Loretta STRACHE,
                                             Appellant

                                                  v.
                                     The State of TexasAppellee
                                       The STATE of Texas,
                                              Appellee

                      From the County Court at Law No. 7, Bexar County, Texas
                                      Trial Court No. 370016
                            Honorable Phil Chavarria, Jr., Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: February 11, 2015

MODIFIED; AFFIRMED AS MODIFIED; MOTION TO WITHDRAW GRANTED

           Following a plea of “true” to the allegations in the State’s motion to revoke community

supervision, the trial court revoked appellant’s community supervision and assessed six months’

confinement, credit for time served, a $1,000 fine, and court costs. On appeal, appellant’s court-

appointed appellate attorney filed a brief containing a professional evaluation of the record and

demonstrating there are no arguable grounds to be advanced. Counsel concludes the appeal is

without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967).
                                                                               04-14-00284-CR

Appellant was informed of her right to review the record and of her right to file a pro se brief.

Appellant did not file a pro se brief.

           We have carefully reviewed the entire appellate record, and we conclude there are no

arguable grounds for appeal, there is no reversible error, and the appeal is wholly frivolous.

Accordingly, we affirm the trial court’s judgment, and we GRANT appellate counsel’s motion to

withdraw. 1 Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.—San Antonio 1997, no pet.); Bruns

v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.).

           However, although we affirm the trial court’s judgment, we also conclude with respect to

the trial court’s award of court costs plus attorney’s fees, the trial court’s judgment should be

modified. The record shows the trial court assessed attorney’s fees despite its finding that appellant

is indigent. 2 An itemized list of court costs attached to the judgment indicates the amount of

attorney’s fees to be assessed against appellant is $100.00. The evidence in the record does not

support a finding that appellant’s ability to pay attorney’s fees changed after the trial court first

determined her to be indigent. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2014);

Roberts v. State, 327 S.W.3d 880, 883-84 (Tex. App.—Beaumont 2010, no pet.). Therefore, we

modify the judgment to delete the assessment of attorney’s fees against appellant.

           We affirm the trial court’s judgment as modified.

                                                              Sandee Bryan Marion, Chief Justice

Do not publish

1
  No substitute counsel will be appointed. See In re Schulman, 252 S.W.3d 403, 408 n.22 (Tex. Crim. App. 2008).
Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, appellant must
either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review.
Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last
timely motion for rehearing that is overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary
review must be filed with Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any petition for discretionary
review must comply with the requirements of Texas Rules of Appellate Procedure 68.4.

2
    The trial court determined appellant qualified for appointed trial counsel, and appellate counsel was later appointed.

                                                           -2-


133 Ind. App. 582 (1962)
181 N.E.2d 240
NEWSOM
v.
THE PENNSYLVANIA RAILROAD COMPANY ET AL.
No. 19,356.
Court of Appeals of Indiana.
Filed April 3, 1962.
*583 Berry, Kincade & Allen, of Terre Haute, for appellant Newsom.
Bernard C. Craig, of Brazil, for cross-appellant Chicago & Eastern Illinois Railroad Company.
George C. Forrey III, White, Raub & Forrey, of Indianapolis, and Kenneth C. Miller, of Brazil, for appellees.
Reporter's note.  This opinion appears out of chronological order.
AX, J.
Appellant, plaintiff below, filed her complaint against appellees for alleged personal injuries which she claimed to have suffered when she was caused to fall on the floor of the Union Station in the City of Terre Haute by reason of the alleged negligence of the appellees in the maintenance of said floor. The cause was submitted to a jury, which returned a verdict in favor of appellant, assessing damages in the amount of $15,000.00, and on which consistent judgment was entered.
Separate motions for new trial were filed by each of said appellees and both motions were sustained by the court which entered the following order:
"The court having heretofore examined the separate motions of defendants for new trial of this action and having heard oral argument thereon and having had said matter under advisement for ruling, now the court being advised sustains the separate motions of defendants for new trial of this action."
From the granting of the motions for new trial, appellant has appealed, assigning as her only error *584 that the trial court erred in sustaining the separate motions of appellees for a new trial.
The separate motions for new trial contained many specifications of error. Without a statement of the claimed error which the court below recognized as the reason for the granting of the motions for new trial, both the appellant and this court are faced with the arduous task of not only considering each and every specification of error claimed by the appellees in their separate motions for new trial, but any other possible error which may have occurred during the proceedings and which was not specified in the motions. As stated recently by this Court in the case of Rife v. Karns (1962), 133 Ind. App. 226, 181 N.E.2d 239, "good practice requires the trial court to state the reasons for its decision in writing when a motion for new trial is sustained," and "we deem it advisable to impose such a requirement at this time to establish good practice and to further the orderly administration of justice."
Notwithstanding the fact that in the Rife case, supra, one of the specifications in the assignment of error was that the court erred in overruling the appellant's motion to state the specific reasons for setting aside the verdict of the jury, and in the case before us no such motion was made by the appellant before the court below, we nevertheless are of the opinion that good practice would dictate that the trial judge should so state his specific reasons for so doing.
The cause is therefore remanded with instructions to the trial judge to state in writing the reasons for the sustaining of the separate motions for new trial.
Ryan, C.J., Myers and Cooper JJ., concur.
NOTE.  Reported in 181 N.E.2d 240.


721 F.2d 820
**Southern Div. Prop.v.Rail Car Ex.
83-8130
UNITED STATES COURT OF APPEALS Eleventh Circuit
12/1/83

1
N.D.Ga.

AFFIRMED

2
---------------

** Local Rule: 25 case.


                                Court of Appeals
                         Sixth Appellate District of Texas

                                   JUDGMENT

Billy Ray Johnson, Appellant                          Appeal from the County Court at Law of
                                                      Bowie County, Texas (Tr. Ct. No.
No. 06-19-00082-CV        v.                          18C0906-CCL). Memorandum Opinion
                                                      delivered by Chief Justice Morriss, Justice
Juan Pena Garcia, Appellee                            Burgess and Justice Stevens participating.

       As stated in the Court’s opinion of this date, we find no error in the judgment of the court
below. We affirm the judgment of the trial court.
       We note that the appellant, Billy Ray Johnson, has adequately indicated his inability to
pay costs of appeal. Therefore, we waive payment of costs.

                                                      RENDERED JANUARY 15, 2020
                                                      BY ORDER OF THE COURT
                                                      JOSH R. MORRISS, III
                                                      CHIEF JUSTICE

ATTEST:
Debra K. Autrey, Clerk


688 F.2d 845
Alanizv.California Processors, Inc.
80-4521, 81-4207, 81-4313
UNITED STATES COURT OF APPEALS Ninth Circuit
8/23/82

1
N.D.Cal.

2
AFFIRMED IN PART; REVERSED IN PART; VACATED AND REMANDED


987 So.2d 1210 (2008)
RANDOLPH
v.
TATAROW FAMILY PARTNERS, LTD.
No. SC08-1191.
Supreme Court of Florida.
June 26, 2008.
Decision without published opinion. Dismissed.


82 So.2d 513 (1955)
Robert B. MAYER and Richard B. Mayer, Appellants,
v.
DADE COUNTY, a subdivision of the State of Florida, Appellee.
Supreme Court of Florida. Division B.
September 21, 1955.
Rehearing Denied October 10, 1955.
*515 Anderson & Nadeau, Miami, for appellants.
Hudson & Cason and Lilburn R. Railey, Miami, for appellee.
THORNAL, Justice.
This appeal presents a decree of the Circuit Court of Dade County in a proceeding in which appellants as plaintiffs attacked as arbitrary, unreasonable and confiscatory county zoning and set-back regulations which had the effect of precluding the appellants from using their property for construction of a hospital.
Appellants purchased the land involved in 1952. The applicable basic zoning regulations were adopted originally on August 2, 1938, and amended on May 9, 1950. Admittedly they were in effect when the property was acquired and plaintiffs below, appellants here, were aware of this fact at the time of purchase.
When applying for a building permit to construct a hospital appellants were confronted with the restrictive zoning and set-back regulations. They appealed to the Board of Adjustment for a variance from the letter of the regulations and were again rejected. Finally, they appealed to the Board of County Commissioners with the same result. Hence, the complaint in this cause asking that the County Zoning Ordinance, as applied to plaintiffs' property, be declared arbitrary, unreasonable and confiscatory, and that issuance to plaintiffs of a building permit for a hospital be directed. The Chancellor denied the relief prayed for.
In order to present a picture of the problem we have prepared a sketch of the boundaries of the property involved showing the applicable zones as follows:

*516 The area shaded by diagonal lines is the property for which appellants seek a permit to construct a hospital.
The building permit was denied and the appeal for a variance was not granted because of the following zoning and set-back regulations, to wit:
(a) Failure to meet frontage requirements. Under Zoning Resolution No. 3711, Section 12A it is required that to construct a hospital there must be a minimum lot width of 100 feet and a zoning classification of at least RU-4 (four family residences, hotels, motels, housing projects, lodges, libraries and the like). The same would apply to the BU-2A zone for the same type of building use and also to such buildings as hotels, sanitariums and apartment houses.
(b) Failure to meet zone requirements. The West 183 feet of appellants' property is zoned RU-2 which is a residence classification that excludes hospitals although the East 100 feet is in a BU-2A zone that allows hospitals.
(c) Failure to meet set-back and open-space requirements. No hospital could be built within 100 feet of any RU-2 zone, nor within 50 feet of any property under a different ownership. This would restrict hospital construction from the North and West sides of appellants' property, but if appellants' West 183 feet were rezoned RU-4 or BU-2A, the 100-foot restriction would have no effect on the application. Also Zoning Resolution No. 5147, adopted July 8, 1952, requires a 25-foot set-back from the East property line, and a 25-foot set-back from a side-line abutting a street. It is alleged that the County contends that the centerline of NW 106th Street, abutting appellants' property on the South, was actually the South line of appellants' property, thus resulting in a 40-foot set-back from the South line. It was stated that at some future date the County would widen NW 106th Street and would, therefore, need the South 15 feet of the property, and the 40-foot set-back was required as to this particular land so that when the street is widened the building would be at least 25 feet inside the property line.
It is further required that if the North wall of the hospital is solid, without an opening, it would have to set back 15 feet from the North line, otherwise 25 feet.
After a thorough and enlightening pre-trial conference, testimony was heard by the Chancellor with the result above stated.
The testimony reveals that the property was classified for zoning purposes only after a comprehensive zoning survey of the entire rural area of the county in 1938. There is no evidence that appellants were singled out for special or discriminatory treatment. However, the set-back requirement on NW 106th Street, as construed by appellees, justifies particular comment as we shall see later.
There was a conflict as to whether, in the opinion of experts, the entire property was zoned to its highest and best use. All conceded that NW 7th Avenue is a busy, commercial thoroughfare. There was also a conflict of opinion as to whether the particular property was adaptable for use as a hospital site, although there is testimony by witnesses for both sides that the entire plot should be zoned for "business" such as a grocery store, as distinguished from a hospital. The set-back and open-space requirements would preclude a hospital regardless of the nature of the zoning classification whether it be RU-4 or BU-2A.
While the basic zoning regulation to which the appellants object was in force and effect long before they acquired the property involved, this fact would not serve to preclude the appellants from challenging the validity of the regulation, if it actually was invalid, insofar as it was applicable to their property. Even though the property owner knew of the restrictions of the regulation when he purchased the land, he could still attack its validity although in appealing to the Board of Adjustment for a variance on a hardship basis, the Board would be justified in taking into consideration the fact of knowledge by the *517 property owner at the time he acquired the land. See City of Miami Beach v. Ocean & Inland Co., 146 Fla. 145, 200 So. 402; Id., 147 Fla. 480, 3 So.2d 364.
In ruling on certain proffered testimony of expert witnesses as to the reasonableness of set-backs the Chancellor decided that the decision as to whether the various set-back requirements were reasonable was for the Court to make as a matter of law after hearing the evidence on the nature of the requirements and their effect on the particular property. We find no error in this ruling.
In Forde v. City of Miami Beach, 146 Fla. 676, 1 So.2d 642, 645, we held that "In each case where an attack is made upon the validity of a zoning ordinance, insofar as its provisions apply to limit and restrict the litigants' property, as in the case at bar, a mixed question of law and fact is presented."
The Chancellor heard all of the testimony with reference to the nature of the property involved, its size, its location, a description of the surrounding community and the uses other than as a hospital to which the property might be put. After the presentation of all the evidence of this nature, the decision as to whether the restrictions were reasonable or unreasonable was a conclusion of law to be determined by the Court from the facts presented.
The record shows that despite the fact that under applicable regulations it would not be possible for the appellants to have constructed the proposed hospital upon the land in question, nevertheless, there were many other profitable uses to which the land could be put. Unlike Ocean Villa Apartments, Inc., v. City of Fort Lauderdale, Fla., 1954, 70 So.2d 901, the property owners in the case at bar were not precluded from the only use to which their property was adapted. There were many other uses permitted by the applicable regulations and the appellants were, therefore, not completely deprived of the beneficial use of their property. See also City of Miami Beach v. Silver, Fla., 1953, 67 So.2d 646.
Appellants attacked the constitutionality of Chapter 17833, Laws of Florida 1937, on the basic proposition that this act constitutes an unlawful delegation of legislative authority to the Board of County Commissioners of Dade County. Chapter 17833, supra, is applicable to "any county having a population of not less than 180,000 according to the last preceding state census * * *" and in effect it prescribes the procedure and lays down standards for the zoning of non-municipal property in the counties involved. We do not find the act to be offensive to the organic law. It is not a local act as contended by appellants for the reason that it applies to all counties with a population in excess of 180,000 "according to the last preceding state census". The act is, therefore, general in its nature and is applicable to counties reasonably classified on a population basis.
On the contention that the act under attack illegally delegates the legislative prerogative we find this statute governed by the rule announced in Sparkman v. County Budget Commission, 103 Fla. 242, 137 So. 809, 812, wherein it was stated:
"`The Legislature may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave the determination of such time to the decision of executive or other officials. A statute so providing is not unconstitutional as a delegation of legislative power.' Ex parte Lewis, [101 Fla. 624] 135 So. 147, 149."
The same rule was clearly announced by this Court in Shad v. De Witt, 158 Fla. 27, 27 So.2d 517, 519, wherein it was stated:
"It is charged by appellant that the act is invalid because in it an attempt was made to delegate legislative and judicial functions and powers to the Civil Service Board and its secretary, contrary to the inhibitions of Article II. The act is not found to be so infected *518 when it is measured by the rule announced by this court in Arnold v. State ex rel. Culbreath, 140 Fla. 610, 190 So. 543, and reiterated in Hutchins v. Mayo, 143 Fla. 707, 197 So. 495, 133 A.L.R. 394. If the legislature defines a pattern to which rules and regulations must conform, then the provisions empowering the adoption of those rules and regulations to effectuate the general purpose of the act cannot be said to amount to an unlawful delegation of power. * * *" (Emphasis ours.)
To the same effect see State ex rel. Young v. Duval County, 76 Fla. 180, 79 So. 692; Zackary v. Morris, 78 Fla. 316, 82 So. 830; Florida Power Corp. v. Pinellas Utility Board, Fla., 1949, 40 So.2d 350.
We therefore hold that a legislative enactment of the nature of the one under attack does not contravene the prohibitions against delegation of the legislative function because it delineates the standards and clearly defines the orbit within which the empowered board shall function in promulgating the regulations.
The act in question has actually been recognized and enforced by this Court on numerous occasions although there has never previously been presented a frontal attack on its constitutionality. However, in Merritt v. Peters, Fla., 1953, 65 So.2d 861, in an opinion by Mr. Justice Thomas this Court recognized the applicability of the act in question and held that a certain regulation adopted by the Board of County Commissioners of Dade County limiting the size of commercial signs in certain zones constituted a valid exercise of the police power to promote the general welfare. The same statute was recognized and applied in Troup v. Bird, Fla., 1951, 53 So.2d 717; Peters v. Thompson, Fla., 1953, 68 So.2d 581; and other cases.
Finally, the appellant contends that the act in question does not authorize the adoption of the so-called set-back regulations and further that these regulations are arbitrary and unreasonable as applied to the property involved for the reason that they make it impossible for the plaintiffs to build their hospital. It appears to us to be implicit in the act itself that reasonable set-back requirements can be adopted. Section 1 of Chapter 17833, supra, empowers the Board of County Commissioners in the counties affected insofar as property outside of municipalities is concerned "to regulate and restrict the height, number of stories and size of buildings and other structures on land and water, the percentage of lot that may be occupied, the size of yards, courts and other spaces * * *."
When the county commissioners within the limitations of the act are authorized to regulate the percentage of a lot that may be occupied and the size of the yards adjacent to the buildings, there is no substantial difference in stating the regulation in the form of a so-called set-back line. This point was clearly covered in the decision of the Supreme Court of the United States in the landmark case of Gorieb v. Fox, 274 U.S. 603, 47 S.Ct. 675, 677, 71 L.Ed. 1228, 53 A.L.R. 1210, wherein it was held:
"It is hard to see any controlling difference between regulations which require the lot owner to leave open areas at the sides and rear of his house and limit the extent of his use of the space above his lot and a regulation which requires him to set his building a reasonable distance back from the street. Each interferes in the same way, if not to the same extent, with the owner's general right of dominion over his property. All rest for their justification upon the same reasons which have arisen in recent times as a result of the great increase and concentration of population in urban communities and the vast changes in the extent and complexity of the problems of modern city life."
The case last cited was followed by the Supreme Court of Florida in City of Miami v. Romer, Fla., 1952, 58 So.2d 849, 852, which involved a set-back provision of the Zoning Ordinance of the City of Miami to the effect that no buildings should be erected on any street in the City closer than *519 25 feet to the centerline of the street. In that case we held that even though the city officials might have in mind an eventual widening of the right-of-way on a particular street abutting appellee's property, such intention did not in and of itself constitute a "taking" of the property for public use within the meaning of Section 12 of the Declaration of Rights of the Florida Constitution, F.S.A.
We find nothing in the record that leads us to the conclusion that the open-space and set-back requirements are unreasonable as applied to the appellants' property, save and except as to the method employed by the appellee in applying the set-back requirement which controls the use of the South side of appellants' property abutting on NW 106th Street. In this particular aspect of the problem it is contended that the zoning officials of the county have construed the South line of appellants' property as the centerline of the street, or more correctly, the centerline of a proposed street to be improved at some indefinite date in the future. Defendant's witness, Czebrinski, testified, "I mean this property actually sits out 30 feet into 106th Street".
The record does show that appellants' property on the South projects into an area that might sometime be 106th Street but there is no dedicated public way and it seems clear from the record that the county has in effect "singled out" this particular parcel for an unusual application of its requirement that there be a set-back of 25 feet from the property line abutting a public way. The effect of this peculiar application of the regulation in this instance is that these appellants are actually being required to set-back some 40 feet from their South property line instead of 25 feet as is required by the wording of the regulation itself.
In City of Miami v. Romer, supra, where we generally sustained set-back requirements, we added the following:
"This is not to say that a situation could not arise where the application of the ordinance to a particular piece of property would be an unreasonable exercise of the police power; * *."
We are of the view that when a set-back regulation is peculiarly applied to a particular parcel in a fashion different from the application thereof to other property similarly conditioned then such application might amount to an unlawful taking without compensation contrary to the letter of Section 12 of the Declaration of Rights of the Florida Constitution.
We further hold that such is the effect of the application of the set-back requirement with reference to the South side of appellants' property and to that extent the final decree must be reversed. The effect of this holding is that the 25-foot set-back on the South should be measured from the South line of the property of the appellants and not from some imaginary street boundary which is anticipated for future development. In all other respects the final decree is affirmed.
>DREW, C.J., and THOMAS and HOBSON, JJ., concur.