Court of Appeals
of the State of Georgia

                                                               ATLANTA, September 23, 2019

The Court of Appeals hereby passes the following order

A20D0060. GUILLERMO NADAL v. NANCY NADAL.

     Upon consideration of the Application for Discretionary Appeal, it is ordered that it be

hereby GRANTED. The Appellant may file a Notice of Appeal within 10 days of the date of

this order. The Clerk of Superior Court is directed to include a copy of this order in the record

transmitted to the Court of Appeals.

LC NUMBERS:

18102764

                                       Court of Appeals of the State of Georgia
                                            Clerk's Office, Atlanta, September 23, 2019.

                                            I certify that the above is a true extract from the minutes
                                       of the Court of Appeals of Georgia.

                                            Witness my signature and the seal of said court hereto
                                       affixed the day and year last above written.

                                                                          , Clerk.


           IN THE UNITED STATES COURT OF APPEALS
                                            United States Court of Appeals
                    FOR THE FIFTH CIRCUIT            Fifth Circuit

                                                  FILED
                                                                               April 30, 2009
                                     No. 08-10703
                                  Conference Calendar                      Charles R. Fulbruge III
                                                                                Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

JAMES EVANS, III

                                                   Defendant-Appellant

                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 6:07-CR-70-ALL

Before JONES, Chief Judge, and JOLLY and ELROD, Circuit Judges.
PER CURIAM:*
       The attorney appointed to represent James Evans, III, has moved for leave
to withdraw and has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967). Evans has filed a response. Our independent review of the
record, counsel’s brief, and Evans’s response discloses no nonfrivolous issue for
appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED,
counsel is excused from further responsibilities herein, and the APPEAL IS

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                No. 08-10703

DISMISSED. See 5 TH C IR. R. 42.2. Evans’s motion for appointment of counsel
is DENIED. See United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).

                                     2


               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                        __________________

                           No. 95-40594
                        __________________

JAMES W. WILLIAMS,

                                     Plaintiff-Appellant,

versus

W. STEVENS; SAM PALASODA;
S. BUTLER; GASPAR CANTU; C. ELLINGBURG;
BARBARA ROSS; MCALVANEY,

                                     Defendants-Appellees.

                       ---------------------

           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. G-93-CV-29

                       ---------------------
                        (September 22, 1995)

Before JOLLY, DAVIS and JONES, Circuit Judges.

PER CURIAM:*

     James W. Williams moves for leave to proceed in forma

pauperis (IFP) on appeal.   To proceed IFP a movant must show that

he is a pauper and that he will present a nonfrivolous appellate

issue.   Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).

Williams' poverty is not in question.   This court may affirm a

district court's dismissal of an IFP proceeding under 28 U.S.C.

     *
          Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
                             No. 95-40594
                                  -2-

§ 1915(d) when it lacks an arguable basis in fact or law.         Ancar

v. Sara Plasma, 964 F.2d 465, 468 (5th Cir. 1992).      The abuse-of-

discretion standard applies.     Id.

     The "initial assessment of the in forma pauperis plaintiff's

factual allegations must be weighted in favor of the plaintiff."

Denton v. Hernandez, 112 S. Ct. 1728, 1733 (1992).      Section

1915(d) "cannot serve as a factfinding process for the resolution

of disputed facts."   Id.    "[A] finding of factual frivolousness

is appropriate when the facts alleged rise to the level of the

irrational or the wholly incredible, whether or not there are

judicially noticeable facts available to contradict them."        Id.

An IFP complaint may not be dismissed "simply because the court

finds the plaintiff's allegations unlikely."      Id.

     Williams contends that the district court erred in

dismissing his complaint under § 1915(d), asserting that he made

a sufficient showing that he was subjected to an excessive use of

force and that the defendants were deliberately indifferent to

his serious medical needs.

                            Excessive Force

     When considering an excessive-force claim, "the core

judicial inquiry is . . . whether force was applied in a good-

faith effort to maintain or restore discipline, or maliciously

and sadistically to cause harm."       Hudson v. McMillian, 503 U.S.

1, 7 (1992).   A number of factors are relevant, including the

extent of the injury suffered.    Also:

          [i]n determining whether the use of force was
          wanton and unnecessary, it may also be proper
          to evaluate the need for application of
                            No. 95-40594
                                 -3-

           force, the relationship between that need and
           the amount of force used, the threat
           "reasonably perceived by the responsible
           officials," and "any efforts made to temper
           the severity of a forceful response."

Id. (citation omitted).

           That is not to say that every malevolent
           touch by a prison guard gives rise to a
           federal cause of action. The Eighth
           Amendment's prohibition of "cruel and
           unusual" punishment necessarily excludes from
           constitutional recognition de minimis uses of
           physical force, provided that the use of
           force is not of a sort "`repugnant to the
           conscience of mankind.'"

Id. at 9-10 (internal and ending citations omitted).

     Williams alleged that he suffered pain and numbness from the

incident, and that his blood circulation was impaired.     Williams

also alleged that he suffered pain and numbness from the

incident, and that his blood circulation was impaired.     In the

instant case, the district court focused on the nature of

Williams' alleged injury only, finding that he suffered "no

injury."   The district court made no findings regarding whether

force was applied in a good faith effort to maintain or restore

discipline, or whether it was administered maliciously and

sadistically to cause harm.   See Rankin v. Klevenhagen, 5 F.3d

103, 106 (5th Cir. 1993).

     Williams' factual allegations are not irrational or wholly

incredible, and his legal argument does not lack an arguable

basis. See Hudson, 503 U.S. at 7.   His IFP complaint should not

have been dismissed under § 1915(d) in this regard.    See Ancar,

964 F.2d at 468.
                            No. 95-40594
                                 -4-

                       Deliberate Indifference

     A official acts with a deliberate indifference under the

Eighth Amendment "only if he knows that inmates face a

substantial risk of serious harm and [he] disregards that risk by

failing to take reasonable measures to abate it."     Farmer v.

Brennan, 114 S. Ct. 1970, 1984 (1994).     The Farmer standard

applies in the context of a denial-of-medical-care claim.        Reeves

v. Collins, 27 F.3d 174, 176-77 (5th Cir. 1994).    Negligence,

neglect, and even medical malpractice do not state a claim under

§ 1983.    Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).

     In his more definite statement, Williams stated that he

suffered a lot of unnecessary pain to his wrists and that he has

problems with his wrists on and off.   He also alleged that his

blood circulation was impaired and that he was denied medical

treatment for four (4) days.

     Because the district court did not address this claim, there

is no factual development of the record in this regard, including

Williams' prison medical records.   Thus, § 1915(d) dismissal of

this claim was improper.

                             Due Process

     In the district court, Williams alleged that his due process

rights were violated in conjunction with a prison disciplinary

hearing.   He has failed to address this issue on appeal.   Claims

not adequately argued in the body of an appellate brief are

deemed abandoned.    See Brinkmann v. Dallas County Deputy Sheriff

Abner, 813 F.2d 744, 748 (5th Cir. 1987).
                             No. 95-40594
                                  -5-

     The record supports the conclusion that the district court

abused its discretion by dismissing this action with prejudice

under § 1915(d).    Williams has raised nonfrivolous appellate

issues; IFP is GRANTED.

     The district court's § 1915(d) dismissal of Williams' due

process claim is AFFIRMED.    However, the district court's

§ 1915(d) dismissal of Williams' excessive-force and deliberate-

indifference claims is VACATED and the matter REMANDED for

further proceedings as to these issues.

     GRANT IFP.    AFFIRM in part.   VACATE and REMAND in part.


801 P.2d 117 (1990)
111 N.M. 47
STATE of New Mexico, Plaintiff-Appellee,
v.
Denver Elwood CALLOWAY, Defendant-Appellant.
No. 11625.
Court of Appeals of New Mexico.
October 2, 1990.
Certiorari Denied November 19, 1990.
*118 Hal Stratton, Atty. Gen., Margaret McLean, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
Jacquelyn Robins, Chief Public Defender, Jerry Todd Wertheim, Asst. App. Defender, Santa Fe, for defendant-appellant.

OPINION
ALARID, Judge.
Defendant appeals his convictions for trafficking in a controlled substance by manufacturing and possession of drug paraphernalia. Defendant challenges the trial court's denial of his motion to suppress evidence and seeks a new trial. The question presented by this case is whether the evidence sought to be suppressed was seized during the course of an unreasonable search in violation of the United States and New Mexico Constitutions. See U.S. Const.Amend. IV; N.M. Const. art. II, § 10. We affirm.

FACTS
On December 31, 1987, the Albuquerque Fire Department responded to a fire at defendant's residence. A fire department arson investigator, Floyd Gonzales, was dispatched to the scene to investigate the cause of the fire at what was believed to be a possible methamphetamine lab. When Gonzales arrived, police were in the process of evacuating the area since it was determined that hazardous chemicals might be in the house. Upon entering the building, Gonzales observed burners, vials, and glassware normally found in a lab. Continuing his investigation, he noticed more hot plates and glassware, as well as chemicals and handguns, in the bedroom of the house.
Gonzales was unable to determine if the chemicals at the scene constituted a hazard because he was not a hazardous material specialist. He requested that a police department impact team and chemist be called to the scene. Officer William Griego of the Valley Impact Team arrived before the chemist. The arson investigator informed Officer Griego of what he had seen. Both men then walked through the house, and Gonzales pointed out the lab equipment, chemicals, and handguns to Officer Griego.
Officer Griego was familiar with the chemicals used to manufacture methamphetamine and knew them to be potentially hazardous. He was not trained to handle such chemicals and, therefore, waited for the police chemist to arrive. Upon his arrival, the chemist informed Officer Griego that the scene was not safe for further sampling of the chemicals and instructed Officer Griego to have the chemicals removed to a police department warehouse. In addition to seizing the chemicals, Officer Griego seized the glassware and handguns which he saw during his initial entry of the building. Before leaving, Officer Griego also seized a briefcase found at the scene of the fire.

DISCUSSION
Defendant argues that the trial court erred by not suppressing the glassware, handguns, briefcase, and its contents pursuant *119 to SCRA 1986, 5-212. We will discuss the seizure of the briefcase and its contents separately from the seizure of the rest of the evidence. As both parties recognize, a reviewing court will review the "propriety of the trial court's ruling [on a motion to suppress] against all of the evidence produced at trial rather than just that which was presented at the suppression hearing." State v. Padilla, 95 N.M. 86, 87, 619 P.2d 190, 191 (Ct.App. 1980).
"On appeal, a trial court's denial of a motion to suppress will not be disturbed if supported by substantial evidence, unless it also appears that the determination was erroneously premised." State v. Warren, 103 N.M. 472, 475, 709 P.2d 194, 197 (Ct. App. 1985) "We view the evidence in a light most favorable to the trial court's ruling, indulging all inferences in support of that ruling, and disregarding all evidence to the contrary." Id.
The trial court based its denial of defendant's motion on the ground that the presence of possibly hazardous chemicals provided the exigent circumstances necessary for a warrantless entry of defendant's residence. Once lawfully within the residence, the trial court concluded that seizure of the glassware and handguns was lawful because they were in plain view. The trial court also determined that the exigencies of the situation permitted Officer Griego to open the briefcase without a warrant to search for other weapons or explosives.
The United States Supreme Court set the parameters for lawful searches of fire-damaged residences in Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984). In Clifford, the court stated that if reasonable privacy interests remain in the fire-damaged property, a search must be conducted pursuant to a warrant absent consent or exigent circumstances. Id. at 292-93, 104 S.Ct. at 646-47. The court held that a search to determine the cause and origin of a fire presents a sufficient exigency to justify a warrantless search of the premises. Id. Evidence of criminal activity, the court went on to say, may be seized under the plain view doctrine during the course of a cause and origin search. Id. at 294, 104 S.Ct. at 647. The court also stated that a cause and origin search does not justify a search to gather evidence of criminal activity without a warrant once the cause and origin of the fire are determined. Id. We note at the outset that the state concedes defendant had reasonable privacy interests in the residence. At trial, defendant did not challenge the right of Floyd Gonzales, the fire department arson investigator, to inspect the premises, but argued that the subsequent inspection by Officer Griego was an unreasonable search and seizure.
Relying on Clifford, defendant argues that Officer Griego conducted an illegal search and seizure of defendant's residence. Defendant points to evidence that Officer Griego entered the building after the fire was out and the arson investigator had conducted a lawful cause and origin search. He also points to testimony by Officer Griego that he entered the premises for the purpose of investigating a suspected drug lab. Defendant reasons that, under Clifford, because the fire was extinguished and a cause and origin search had been completed, exigent circumstances did not exist to justify Officer Griego's warrantless entry onto the premises. We disagree.
Defendant's reliance on Clifford is misplaced. While it is true at that time a burning fire or the need for a cause and origin search did not exist, the presence of hazardous chemicals constituted exigent circumstances justifying Officer Griego's warrantless entry. The case of United States v. Clark, 617 F. Supp. 693 (E.D.Pa. 1985), aff'd without opinion, 791 F.2d 922 (3d Cir.1986), and aff'd without opinion, 833 F.2d 307 (3d Cir.1987), demonstrates the reasonableness of Officer Griego's actions. See also United States v. Callabrass, 607 F.2d 559 (2d Cir.1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 794 (1980).
In Clark, fire officials and a police officer responded to the scene of a smoking building. Id., 617 F. Supp. at 694. Their warrantless entry revealed an active methamphetamine lab. Id. at 695. Knowing *120 the potential hazards involved but not trained to handle the chemicals or dismantle the lab, the officers called narcotics detectives with more experience in the field. Id. The narcotics detectives determined that the lab and chemicals created a highly dangerous situation and called the Drug Enforcement Administration (DEA) because it had greater expertise. Id. When DEA agents arrived, they supervised the dismantling of the lab. Id.
The Clark court found that the narcotics detectives' plain view seizure of evidence inside the home was valid because they were lawfully on the premises without a warrant. Id. at 696. The court reasoned that the dangers posed by the lab and chemicals were the type of exigent circumstances Justice Stevens referred to in his concurrence in Clifford when he discussed the need to prevent the rekindling of a fire. Id. at 697. The instant case presents us with a similar situation.
Not being a hazardous material specialist, the arson investigator called the police impact team and chemist. Like the narcotics detectives in Clark, Officer Griego decided to delay removing the hazardous chemicals from the home until the chemist arrived. Moreover, Officer Griego was lawfully on the premises without a warrant because of the exigent circumstances created by the potentially hazardous chemicals in the house.
Defendant also places great weight on Officer Griego's statements that he was entering the premises to investigate a possible drug lab. We find such statements non-dispositive of the issues in this case. Other jurisdictions have held that an officer's subjective intentions during a search do not control the issue of exigent circumstances. See United States v. Urban, 710 F.2d 276 (6th Cir.1983); United States v. Callabrass. Indeed, our own case law frames the issue of exigent circumstances as whether an "officer could reasonably conclude that swift action was necessary." State v. Copeland, 105 N.M. 27, 31, 727 P.2d 1342, 1346 (Ct.App. 1986). Such a statement demonstrates that objective conditions rather than an officer's subjective intentions determine whether exigent circumstances exist.
We therefore conclude that substantial evidence does support the trial court's finding of exigent circumstances. See State v. Warren. We add that defendant's arguments concerning whether the police search was a true continuation of the initial cause and origin search or whether the arson investigator and Officer Griego entered together to perform a cause and origin search are irrelevant. It was the hazardous chemicals, and not a need for a cause and origin search, that provided the exigency.
Based on Officer Griego's warrantless entry due to exigent circumstances, the trial court found that Officer Griego was entitled to seize the evidence in question because it was in plain view. For the seizure to come within the plain view doctrine, first there must be a prior valid intrusion. State v. Dobbs, 100 N.M. 60, 65, 665 P.2d 1151, 1156 (Ct.App. 1983). On this ground alone, defendant challenges Officer Griego's plain view seizures. Because we find his intrusion valid under the exigent circumstances exception to the warrant requirement, we also find his seizure of the glassware and handguns valid under the plain view doctrine. The seizure of the briefcase and its contents poses a slightly different question.
Citing United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), defendant asserts that he has a reasonable expectation of privacy in the briefcase itself. We agree. Under Chadwick, for the police to conduct a warrantless search of luggage, like a briefcase, probable cause plus an exception to the warrant requirement like exigent circumstances must exist. Id. at 13-15, 97 S.Ct. at 2484-86. Officer Griego testified that he opened the briefcase to make sure nothing hazardous was inside. Based on the hazardous chemicals he observed in the rest of the house, the trial court could find Officer Griego had probable cause to believe something hazardous may have been in the briefcase. See State v. Santillanes, 89 N.M. 727, 557 P.2d 576 (Ct.App. 1976). *121 Moreover, the potentially hazardous conditions constituted exigent circumstances justifying a warrantless search of the briefcase. As the trial court noted:
There could really be something inside the briefcase. There could have been other weapons, may have been a stick of dynamite. God only knows what could have been in there, so all things remaining equal, I feel the search and the seizure of the materials was not in violation of the Fourth Amendment or the Constitution of the United States in any respect.
Because his intrusion into the briefcase was valid, Officer Griego was entitled to seize evidence in plain view. See State v. Dobbs. Defendant does not challenge whether the contents of the briefcase fell within the plain view doctrine. Therefore, we affirm the trial court's determination that Officer Griego lawfully seized the contents of the briefcase under the plain view doctrine.
We hold the trial court did not err in denying defendant's motion to suppress evidence. Because the trial court did not err, we do not address defendant's harmless error arguments. Accordingly, the verdicts and sentence below are affirmed.
IT IS SO ORDERED.
BIVINS, C.J., and DONNELLY, J., concur.


AFFIRM; and Opinion Filed July 14, 2015.

                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-14-01131-CR
                                      No. 05-14-01132-CR
                                      No. 05-14-01133-CR
                         JERROD DEMOUN PRESTON, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 2
                                   Dallas County, Texas
               Trial Court Cause Nos. F13-72559-I; F14-56011-I; & F14-70597-I

                            MEMORANDUM OPINION
                          Before Justices Fillmore, Myers, and Evans
                                   Opinion by Justice Evans
       Jerrod Demoun Preston appeals his convictions for assault family violence, continued

violence against family, and assault family violence enhanced by the prior continued violence

against family offense. For the reasons that follow, we affirm the trial court’s judgments in all

three cases.

                                     I. Procedural Posture

       Pursuant to negotiated pleas, appellant pleaded guilty to the offenses of (1) assault family

violence by impeding breathing circulation (05-14-01131-CR, F13-72559-I), and (2) continued

violence against family (05-14-01133-CR, F14-70597-I). The trial court placed appellant on

deferred adjudication community supervision for six years for each offense.             While on

community supervision, appellant was indicted for another assault family violence offense
involving the same complainant, enhanced by the previous continued family violence offense

(05-14-01132-CR, F14-56011-I).       The State moved to revoke community supervision and

adjudicate guilt for the first two offenses, alleging appellant violated the conditions of his

community supervision by (1) committing a new offense against the complainant on June 18,

2014, and (2) having contact with complainant on June 18, 2014. Appellant pleaded “not true”

to the State’s allegations.

        The only two witnesses to testify at the hearing on the State’s revocation/adjudication

motions in the first two cases were police officer Cory Wright and appellant. Although the

complainant was subpoenaed, she failed to appear.         Defense counsel objected to Wright’s

testimony about what the complainant told him, asserting it violated appellant’s “right to cross-

examination and confrontation.” The trial court overruled the objection and allowed Wright to

testify about what the complainant had told him. After the hearing, the trial court adjudicated

appellant guilty in the two cases and sentenced him to three years’ confinement for each offense.

        Later that same day, the trial court held a bench trial with respect to the third family

violence offense. The State asked the Court to take judicial notice of Wright’s and appellant’s

testimony in the revocation/adjudication hearing as well as the fact that the State had served the

complainant. No other evidence was presented. At the conclusion of the trial, the trial court

found appellant guilty and sentenced him to three years’ confinement to run concurrently with

the sentences for the two other offenses.

        With respect to all three offenses, appellant (1) challenges the admission of statements

made by the absent, complaining witness to Officer Wright, and (2) contends that without the

inadmissible testimony of Officer Wright, the evidence is insufficient to support the trial court’s

judgments.    In three additional issues germane only to the third offense, appellant argues

(3) there is insufficient evidence to prove a familial, dating, or household relationship required

                                               –2–
for the third offense, (4) complains the record does not sufficiently establish a written jury

waiver, and (5) argues no evidence of a prior offense was offered to support the enhancement

paragraph.

                          II. Violation of the Confrontation Clause

       In his first issue, appellant complains the trial court’s admission of the complainant’s

statements to Wright violated his Sixth Amendment right to confront the witnesses against him.

The Confrontation Clause provides that “in all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him.” U.S. Const. amend VI. Its purpose

is to ensure protection against ex parte examinations of the sort found problematic in civil law,

including interrogations by law enforcement officers. See Crawford v. Washington, 541 U.S. 36,

50, 68 (2004). By its express terms, however, the Confrontation Clause applies only to “criminal

prosecution.” U.S. Const. amend VI.        Probation revocation is not a stage of “criminal

prosecution” and, thus, the Sixth Amendment does not apply to such proceedings. See Wisser v.

State, 350 S.W.3d 161, 164 (Tex. App.—San Antonio 2011, no pet.); Trevino v. State, 218

S.W.3d 234, 239 (Tex. App.—Houston [14th Dist.] 2007, no pet.); Smart v. State, 153 S.W.3d

118, 121 (Tex. App.—Beaumont 2005, pet. re’d).

       To the extent that appellant complains his Sixth Amendment rights were violated in the

revocation/adjudication hearing, we note that revocation proceedings involving deferred

adjudication community supervision, like regular probation revocation, is not a stage of

“criminal prosecution.” See Mauro v. State, 235 S.W.3d 374, 376 (Tex. App.—Eastland 2007,

pet. ref’d.) (applying general rule that probation revocation proceedings are not a phase of

criminal prosecution for purposes Sixth Amendment to deferred adjudication revocation

                                              –3–
proceedings). 1 Deferred adjudication community supervision differs from regular probation by

allowing a defendant who pleads guilty to an offense and who successfully completes

community supervision to avoid “conviction.” But the only issue to be determined by the trial

court in a deferred adjudication revocation proceeding is whether to proceed with an adjudication

of guilt. TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(b) (West Supp. 2014). The issue of the

defendant’s guilt is determined in the initial plea proceeding. Because the deferred adjudication

revocation proceedings are not a phase of criminal prosecution for Sixth Amendment purposes,

the trial court did not err in overruling defense counsel’s objection and admitting Wright’s

testimony at the revocation/adjudication hearing.

        Appellant also asserts his Sixth Amendment rights were violated when the trial court took

judicial notice of the complained-of testimony in the bench trial on appellant’s third offense.

Our review of the record, however, reveals that appellant did not object. At the trial before the

court, the State asked the trial court to take judicial notice of Wright’s and appellant’s testimony

in the revocation hearing, and then rested. Defense counsel then stated, “And, Your Honor, we

concur with that. We just had that – the trial on the probation revocation. We believe it would

be the exact same evidence at a final trial before the court.” A defendant waives his

constitutional right to confront witnesses absent a timely and specific objection at trial on the

basis of his right to confrontation. See TEX. R. APP. P. 33.1; Reyna v. State, 168 S.W.3d 173, 179

(Tex. Crim. App. 2005). Because appellant did not object to the trial court’s taking judicial

notice of Wright’s testimony at the bench trial, he has waived his Confrontation Clause

    1
      See also Riley v. State, Nos. 05-13-00900-CR and 05-13-00901-CR, 2014 WL 1856845 *3 (Tex. App.—
Dallas May 8, 2014, pet. ref’d) (mem. op., not designated for publication) (because defendant’s guilt already
determined in prior plea proceedings, revocation of deferred adjudication community supervision was not a phase of
‘criminal prosecution’ for purposes of Sixth Amendment); Gutierrez v. State, No. 05-11-01380-CR, 2013 WL
3533549 at *2 (Tex. App.—Dallas July 12, 2013, pet. ref’d) (mem. op., not designated for publication) (same).

                                                      –4–
complaint as it relates to the third assault family violence offense. We overrule appellant’s first

issue.

                                   III. Sufficiency of Evidence

         In his second issue, appellant challenges the sufficiency of evidence to support his

convictions in all three cases.      Specifically, appellant argues that once Officer Wright’s

testimony is disregarded, the evidence is insufficient to support the third family assault

conviction and the two earlier judgments adjudicating guilt. Appellant’s third issue similarly

asserts that without Wright’s testimony, there was insufficient evidence that the complainant had

a familial, dating, or household relationship with appellant to support his third assault family

violence conviction.

         When we conduct a sufficiency review, we consider all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.

307, 316–17 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). “Our review

of ‘all the evidence’ includes evidence that was properly and improperly admitted.” Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Conner v. State, 67 S.W.3d 192, 197

(Tex. Crim. App. 2001)).

         With regard to appellant’s third assault family violence conviction, we consider whether

any rational fact-finder could have found the essential elements of the offense beyond a

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307 at 318. The essential elements of

assault are that (1) defendant, (2) intentionally, knowingly, or recklessly, (3) caused bodily injury

to another. See TEX. PENAL CODE ANN. § 22.01(a) (West Supp. 2014). The offense constitutes

assault family violence of the third degree if it is shown at trial that the defendant has been

previously convicted of an assault offense against a person whose relationship to the defendant is

                                                –5–
described as a “dating relationship” by section 71.0021(b) of the family code. See TEX. PENAL

CODE ANN. § 22.01(b)(2)(a).      For purposes of section 71.0021(b), “dating relationship” is

defined as a relationship between individuals who have or have had a continuing relationship of

a romantic or intimate nature. See TEX. FAM. CODE ANN. § 71.0021(b) (West 2014).

       With respect to appellant’s judgments adjudicating guilt, we note the determination of an

adjudication of guilt is reviewable under the same standard used to review a trial court’s

revocation of community supervision. TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(b) (West

Supp. 2014). We review such orders for an abuse of discretion. See Rickels v. State, 202 S.W.3d

759, 763–64 (Tex. Crim. App. 2006). When reviewing a trial court’s revocation, a reviewing

court must ensure the State proved by a preponderance of the evidence that a condition of

community supervision was violated. See Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App.

1993). Merely one violation of a community supervision condition will suffice to support the

trial court’s revocation of community supervision. See Sanchez v. State, 603 S.W.2d 869, 871

(Tex. Crim. App. 1980).

       Appellant’s sufficiency argument is premised on his belief that Wright’s testimony was

inadmissible. But as previously noted, even evidence improperly admitted is considered in our

sufficiency review. See Clayton v. State, 235 S.W.3d at 778. Moreover, we have already

considered and rejected appellant’s complaint regarding the inadmissibility of Wright’s

testimony. By negative inference, appellant’s argument essentially concedes that with Wright’s

testimony there is sufficient evidence. Nevertheless, we will briefly review the evidence.

        At the revocation/adjudication hearing, appellant testified about the events on June 18,

2014 that resulted in his third assault offense. Appellant took his child to a local hangout that he

called the “Clubhouse” to look for appellant’s mother.          There, appellant encountered the

complainant, who is the mother of his child. According to appellant, after he walked into the

                                                –6–
Clubhouse, the complainant went to appellant’s car and took the child out of the car because she

was angry. Appellant admitted that he talked “bad” to complainant and “exchanged some radical

words” to her. He denied touching the complainant during their encounter.

        Officer Wright responded to the situation after the alleged incident occurred.          He

testified that when he approached the complainant, she was by herself and appeared “upset,”

“shaken up,” and “nervous” with a recent small cut on her left eyebrow. Wright testified that the

complainant told him she, the baby, and appellant were in appellant’s car when an argument

ensued. She told Wright that after she got out of the car, appellant punched her, causing her to

fall to the ground while holding their child. The complainant said that after she got up, appellant

started attacking her a second time before she was able to get away.

       By the time Wright arrived on the scene and began questioning her, the complainant no

longer had the baby with her. The complainant told Wright that she and appellant had been

dating for five years and were living together at his mother’s residence.    It was not until after

Wright began typing his report that he saw appellant and arrested him.

       With respect to appellant’s third offense, we conclude a rational fact-finder could have

found the essential elements of assault family violence beyond a reasonable doubt. Wright’s

testimony about the complainant’s statements supports the conclusion that appellant intentionally

caused bodily injury to the complainant by deliberately punching her. In addition, Wright’s

testimony that appellant and the complainant dated for five years, lived together, along with

evidence that appellant and the complainant had a child together, at a minimum, supports a

finding they once shared a continuing intimate relationship. A past continuing relationship of an

intimate nature is sufficient to qualify as a “dating relationship.” See TEX. FAM. CODE ANN.

§ 71.0021(b).   Further, appellant previously pleaded guilty to assault family violence by

impeding breathing circulation and to continuous violence against family, each of which

                                               –7–
involved the same complainant. Given appellant’s past charges and evidence, a rational fact-

finder could have found beyond a reasonable doubt that appellant and the complainant were in a

dating relationship.

        Moreover, the above evidence was sufficient to establish appellant violated the conditions

of his community supervision in the two deferred adjudications as alleged by the State. In its

amended motions to revoke community supervision and adjudicate guilt in his two previous

cases, the State alleged appellant violated condition (a) of his community supervision by

committing assault family violence on June 18, 2014 and (q) had contact with complainant on

June 18, 2014. 2 According to Wright’s testimony, on June 18, 2014, appellant assaulted and

made contact with the complainant. Appellant also testified that he went to the Clubhouse and

while there exchanged “some radical words” with the complainant when he encountered her.

Because the evidence supports a finding that appellant violated both conditions (a) and (q) of his

community supervision by a preponderance of the evidence, the trial court did not abuse its

discretion in revoking his community supervision in the two deferred adjudication cases. 3 We

overrule appellant’s second and third issues.

                                               IV. Jury Waiver

         In his fourth issue, appellant asserts that the record does not sufficiently establish that he

waived his right to a jury with respect to the third offense that was ultimately tried before the

    2
      In relevant part, condition (a) of appellant’s community supervision required that he “Commit no offense
against the laws of this or any other State or the United States.” Condition (q) of appellant’s community supervision
provided, “Do not have any form of contact, be it in person, by mail, telephone or any form of communication with
[complainant] directly or indirectly, for the duration of the Supervision Term.” In the case involving assault family
violence by impeding breathing circulation, the State also alleged appellant violated condition (j) of his community
supervision by not paying fees and being currently delinquent in the amount of $120.
    3
       Appellant argues there is no evidence that he made contact with complainant through his own volition, that
any contact was unintentional and initiated by complainant. Even assuming appellant did not intend to initiate
contact with the complainant, the condition expressly prohibits contacting or communicating with complainant
without regard to appellant’s intention. In addition, appellant did not explain in his testimony or in his appellate
brief how appellant’s speaking “radical words” to the complainant was involuntary.

                                                        –8–
court. The State concedes that there is no written jury waiver in the record, but argues any error

from its absence is harmless in this case. We agree with the State.

       In Johnson v. State, 72 S.W.3d 346 (Tex. Crim. App. 2002), the court of criminal appeals

addressed the issue of whether the failure to obtain a written jury waiver pursuant to article 1.13

of the code of criminal procedure was harmful. Id. In concluding on the record of the case the

error was harmless, it reasoned that a recitation in the judgment of conviction that the defendant

“waived trial by jury” was controlling in absence of direct proof of its falsity. Id. at 349. Here,

as in Johnson, the judgment of conviction in appellant’s offense recites that appellant “waived

the right of trial by jury.” Additionally, the record reflects that immediately after the trial court

called the case for trial, it stated, “There’s a jury waiver signed by Mr. Preston and his attorney

and the State and myself.” No party objected to the trial court’s statement. Moreover, the trial

court’s docket sheet contains the statement “jury waived in writing” dated and signed by the trial

judge. Appellant has not presented any evidence that the trial court’s statement on the record,

notation on the trial court docket, or the recitation in the judgment were false. See id. Nor does

he contend, or the record reflect, that appellant was unaware of his right to a jury trial. See id.

Because the absence of the written jury waiver from the record does not affect appellant’s

substantial rights, any error is harmless and will not support a reversal. See TEX. R. APP. P.

44.2(b); Johnson, 72 S.W.3d at 349. We overrule appellant’s fourth issue.

                                        V. Enhancement

         In his fifth issue, appellant complains only that there was no evidence of a prior offense

to support the enhancement of his third assault family violence conviction. Specifically, he

argues “At no time was any ‘evidence’ offered on the prior, nor did the State ask to re-open the

evidence. The court’s file from the previous proceeding was not offered, nor was the court asked

to take judicial notice thereof.”

                                                –9–
        The indictment in the third case contained an enhancement paragraph based on

appellant’s previous offense of continued violence against the family. To establish appellant was

convicted of a prior offense, the State must prove beyond a reasonable doubt that a prior

conviction exists and appellant is linked to that conviction. See Flowers v. State, 220 S.W.3d

919, 921 (Tex. Crim. App. 2007). No specific method of proof or particular documentation of

the prior conviction is required. Id.

        Under evidence rule 201, a trial court has discretion to take judicial notice of an

adjudicative fact, such as the fact of a defendant’s prior conviction, without being asked and may

do so at any stage of the proceeding. See Kubosh v. State, 241 S.W.3d 60, 65–66 (Tex. Crim.

App. 2007).     In a criminal case, a trial court may judicially notice its own records and

proceedings, including all judgments and convictions entered by it, and take judicial notice that a

defendant was previously convicted by the court. See Turner v. State, 733 S.W.2d 218, 221–22

(Tex. Crim. App. 1987).

        As noted above, all three of appellant’s cases at issue were heard on the same day.

Before the bench trial, the trial court had revoked appellant’s community supervision and

adjudicated appellant guilty for the offenses of assault family violence by impeding breathing

circulation and continued violence against family. At the bench trial, both the State and defense

counsel acknowledged that, earlier that day, the trial court completed the revocation/adjudication

hearing on appellant’s prior two offenses and that the evidence in the bench trial would be the

same as that offered in the revocation/adjudication hearing. Based on the record before us, there

was sufficient evidence of appellant’s prior offense to support the enhancement. We overrule

appellant’s fifth issue.

                                              –10–
       We affirm the trial court’s judgments.

                                                   /David Evans/
                                                   DAVID EVANS
                                                   JUSTICE

Do Not Publish
TEX. R. APP. P. 47

141131F.U05

                                                –11–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

JERROD DEMOUN PRESTON, Appellant                       On Appeal from the Criminal District Court
                                                       No. 2, Dallas County, Texas
No. 05-14-01131-CR         V.                          Trial Court Cause No. F13-72559-I
                                                       Opinion delivered by Justice Evans, Justices
THE STATE OF TEXAS, Appellee                           Fillmore and Myers participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 14th day of July, 2015.

                                                –12–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

JERROD DEMOUN PRESTON, Appellant                       On Appeal from the Criminal District Court
                                                       No. 2, Dallas County, Texas
No. 05-14-01132-CR         V.                          Trial Court Cause No. F14-56011-I
                                                       Opinion delivered by Justice Evans, Justices
THE STATE OF TEXAS, Appellee                           Fillmore and Myers participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 14th day of July, 2015.

                                                –13–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

JERROD DEMOUN PRESTON, Appellant                       On Appeal from the Criminal District Court
                                                       No. 2, Dallas County, Texas
No. 05-14-01133-CR         V.                          Trial Court Cause No. F14-70597-I
                                                       Opinion delivered by Justice Evans, Justices
THE STATE OF TEXAS, Appellee                           Fillmore and Myers participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 14th day of July, 2015.

                                                –14–


129 F.Supp. 679 (1955)
In the Matters of AIRLINES TRANSPORT CARRIERS, Inc., a California corporation, and California Central Airlines, Incorporated, a Nevada corporation, Bankrupts.
Nos. 59560, 59561.
United States District Court, S. D. California, Central Division.
February 28, 1955.
*680 Guthrie, Darling & Shattuck, Los Angeles, Cal., Hale, Stimson, Russell & Nickerson, New York City, for Southwest Airways and Allegheny Airlines, Inc.
Quittner & Stutman, Los Angeles, Cal., for Airline Transport and California Airlines.
Robert Winkler, Los Angeles, Cal., for Harry Conover.
Hubert F. Laugharn, Los Angeles, Cal., for Wm. A. Wylie, Trustee.
Schwartz & Alschuler, Beverly Hills, Cal., for Ultramar International.
Laughlin E. Waters, U. S. Atty., Los Angeles, Cal., for United States.
Edward C. Freutel, Jr., Los Angeles, Cal., for Amsterdam Overseas Corp.
Benno M. Brink, Los Angeles, Cal., Referee in Bankruptcy.
HALL, District Judge.
The two within proceedings started simultaneously on January 27, 1954, as reorganizations under the provisions of Chapter XI of the Bankruptcy Act, 11 U.S.C.A. § 722. The debtors were continued in possession of, and operated, the properties until January 25, 1955, at which time both debtors were adjudicated as bankrupts, and William A. Wylie was appointed as trustee for both bankrupts. The trustee was authorized to conduct the business of the bankrupts.
On February 14, 1955, after notice, a sale of all the assets of both bankrupts was had, at which time the Southwest Airways and the Allegheny Airlines, Inc. bid the sum of $800,000, and on that date the sale was confirmed to them by the order of the Referee. The order confirming sale also provided that "The trustee is likewise directed to terminate his operations of said businesses as of this date." Terms of the sale provided for the payment of $250,000 forthwith, and the balance of $550,000 in cash within 14 days thereof, or on February 28, 1955. By the order confirming sale, the title was retained in the trustee until the full consideration was paid.
It appears from the schedules that ownership of most of the physical properties, i. e., planes, parts, etc., was claimed to be in Airline Transport Carriers. The appraisal made and filed on February 14, 1955, however, appraised the properties of both bankrupts as a unit, without segregation as to ownership. No order of the Referee has been made determining which bankrupt owned what property. And the properties were sold as a unit. The bid accepted was the highest bid. In addition to the physical properties sold, there was also sold "All licenses, permits, applications therefor, *681 qualifications and privileges in connection with the present operations of the business of the respective bankrupts."
California Central owned Intra-State Certificate No. 6-4(c), issued by the State of California under California State Law. It operated entirely within the State of California, and did not carry mail. It had no operating certificate, or letter of registration, or exemption issued by the Federal government under the Civil Aeronautics Act, 49 U.S.C.A. § 401 et seq.
Airline Transport Carriers had "Letter of Registration No. 704 non-certificated irregular Air Carrier" issued by the Federal Civil Aeronautics Board under date of August 5, 1947; and, "A Carrier Operating Certificate" No. 6-173, issued by that Board effective September 12, 1947; and an Order No. E-5487 by that Board dated July 3, 1951, granting exemption from certain provisions of the Civil Aeronautics Act.
A Petition for the review of the order of the Referee confirming the sale was timely filed on February 16, 1955, by one Harry Conover. On February 18, 1955, upon the petition of Conover, this Court issued an Order to Show Cause to the trustee and the purchasers of the assets why an order should not be made herein staying and suspending the execution and enforcement of said Order Confirming Sale until hearing and final decision on the Petition for Review under 11 U.S. C.A. § 67, sub. c. The Order to Show Cause was made returnable on February 28, 1955, at 10:00 a. m., and further execution of the Order Confirming Sale was stayed until then.
Thereafter, and on February 23, 1955, the Referee filed his certificate on Conover's Petition for Review, and the trustee noticed it for hearing on February 28, 1955, at the hour of 10:00 o'clock a. m., the same date and hour set for hearing the Order to Show Cause. At the time of calling the matter, the Court ordered and directed that the hearing proceed on the merits of the Petition for Review.
The sole ground for objection to the confirmation of sale is that the sale by the trustee, as confirmed by the Referee, was in violation of 49 U.S.C.A. § 488, Section 408 of the Civil Aeronautics Act.
Subsection (a)[1] of Section 488 generally makes unlawful, unless approved by order of the Board as provided in that section, the acquisition of the properties of one air carrier by another air carrier.
Subsection (b)[2] of Section 488 provides the procedure to be followed by a *682 person seeking approval of the things specified as unlawful in subsection (a).
Section 1(2) of the Civil Aeronautics Act, 49 U.S.C.A. § 401(2), defines "air carrier." It provides, "`Air carrier' means any citizen of the United States who undertakes, whether directly or indirectly or by a lease or any other arrangement, to engage in air transportation." Section 1(10) of the Civil Aeronautics Act, 49 U.S.C.A. § 401(10), defines "air transportation"  "`Air transportation' means interstate, overseas, or foreign air transportation or the transportation of mail by aircraft."
It is conceded by all parties that the Southwest Airways and the Allegheny Airlines, Inc. are, and at all times herein involved, were, each an "air carrier" within the terms and provisions of the Civil Aeronautics Act.
Clearly, California Central Airlines was not an "air carrier" as defined by Section 401 of Title 49, since it was not engaged in "air transportation" involving "interstate, overseas, or foreign air commerce or the transportation of mail by aircraft". It did none of those things, and the terms of the Civil Aeronautics Act do not apply to it, and hence, not to the sale of its assets by the trustee.
The Airlines Transport Carriers, Inc., however, had a Letter of Registration, No. 704, issued by the Civil Aeronautics Board on August 5, 1947, an Air Carrier Operator's Certificate No. 6-173, effective September 12, 1947, and an Order granting exemption, Serial No. E-5487, dated July 2, 1951.
It was stipulated that it carried passengers in interstate commerce prior to the time of the filing of the within proceedings. It was, therefore, an "air carrier" within the terms of the Civil Aeronautics Act.
A letter from the Civil Aeronautics Board was received and filed at the hearing on February 28, 1955, wherein the Board took the position that the trustee in bankruptcy was an "air carrier" within the terms of the Act, and that any sale was subject to the provisions of Section 408(a) (3) of the Act, 49 U.S.C.A. § 488. Reviewing petitioner contends that subdivision (a)(1), (2), (3), (5) and (6) of Section 408 are applicable.
The trustee and the purchasers at the trustee's sale strenuously contend that no prior approval of the sale in bankruptcy is required to be had under the terms of the Civil Aeronautics Act in that the trustee was not an "air carrier."
The Order of Sale confirmed the sale of all of the property, the title to which passed to the trustee under the terms of the Bankruptcy Act.
*683 Evidence introduced at the time of the hearing showed that on February 9, 1955, after the adjudication in bankruptcy, the trustee engaged in interstate flights from San Francisco, California, to Reno, Nevada, as trustee for the Airlines Transport Carriers, Inc.
It was urged that the Letter of Registration, No. 704, and its supporting orders and documents passed no right or title to the trustee to operate the airline, and that the trustee could not do so without the prior approval of the Civil Aeronautics Board, either upon certification proceedings or by Letter of Exemption. If this is so, then obviously, the trustee would not be an "air carrier" under the terms of the Civil Aeronautics Act. But even if the title to such certificates did pass to the trustee, it does not necessarily mean that the sale was void, as will be hereafter seen.
Section 70 of the Bankruptcy Act, 11 U.S.C.A. § 110, provides, in subsection a that the "trustee * * * shall * * * be vested by operation of law with the title of the bankrupt * * *," to property including, subsection a (3), "powers which he [the bankrupt] might have exercised for his own benefit, but not those which he might have exercised solely for some other person".
It is my conclusion that whatever rights the airlines Transport Carriers had under Letter of Registration No. 704 and its supporting documents passed to the trustee in bankruptcy by operation of law upon the adjudication in bankruptcy without the prior approval of the Civil Aeronautics Board. Not only is this so by reason of the provisions of Section 70 of the Bankruptcy Act above referred to, but also by reason of the provisions of Section 11 of Title 11, U.S. C.A., defining the jurisdiction of the courts in bankruptcy. Subdivision (5) thereof provides that such courts may, "Authorize the business of bankrupts to be conducted for limited periods by receivers, the marshals, or trustees, if necessary in the best interests of the estates * * *;" and subdivision (15) provides that such courts may "make such orders, issue such process, and enter such judgments, in addition to those specifically provided for, as may be necessary for the enforcement of the provisions of this title".
The record shows that the Referee authorized the trustee to conduct the business of the bankrupt for the limited period from the date of adjudication, January 25, 1955, until the close of business on February 14, 1955.
This was such a "limited period" as to be within the power of the bankruptcy court, without the trustee becoming an "air carrier" under the terms of the Civil Aeronautics Act. Whether an order for the conduct of the business for a more extended period, or for an indefinite period, would make the trustee an "air carrier" is not before the court, and is not decided.
The Letter of Registration No. 704 provides: "This Letter of Registration is not transferrable."
The trustee sold all of the right, title and interest of the bankrupts, but by the terms of the Letter of Registration, the trustee, while he could operate under it, could not sell it, and of necessity did not sell and transfer it to the purchasers by the sale on February 14, 1955. Any attempted transfer of any right, title or interest under that Letter of Registration under the terms of the Civil Aeronautics Act would require approval or exemption thereof by the Civil Aeronautics Board.
The salutary purpose of the Bankruptcy Act is to preserve the assets of the bankrupt for the benefit of the creditors. An order authorizing the sale of the assets of the bankrupt is intended to effectuate this purpose. The Civil Aeronautics Act was not intended to thwart this purpose by preventing a sale which would best achieve a preservation of those assets. The purpose of the Civil Aeronautics Act is to foster air transportation, and in furtherance of this *684 purpose, to preserve competition between air carriers when the public interest is thereby served. Its sphere of operation is entirely removed from that of the Bankruptcy Act, and neither Act of Congress invades or prevents the fulfillment of the purpose of the other.
It is to be noted that Section 408 of the Civil Aeronautics Act, relied on by the petitioning creditor as rendering unlawful this sale in bankruptcy, is, by its terminology, directed at purchases, consolidations, etc., which may be generally described as "acquisitions" of property by an air carrier, and makes unlawful certain such acquisitions unless approval of the Civil Aeronautics Board is obtained.
While such acquisitions in violation of Section 408 are made "unlawful," a sale in bankruptcy is not made void, because subsection (b) of the Act gives power to the Board to approve acquisitions, and Section 416 of the Act, 49 U.S. C.A. § 496, gives the Board power to exempt such transactions.
It is for the Civil Aeronautics Board, and not the Courts, to say whether a particular acquisition offends, and if so, to apply against the purchaser the sanctions permitted by Congress in the Civil Aeronautics Act. The Courts will not invade the jurisdiction of the Board to unnecessarily decide that question of which Congress has made the Board the arbiter. It is not necessary for the Court to reach that question. So far as the sale in bankruptcy is concerned, whatever perils, if any exist under the Civil Aeronautics Act, attach to the purchaser, and cannot invalidate the sale in bankruptcy.
The sale comports in all respects with the Bankruptcy Act, and is valid.
A point was made that Conover was not a "person aggrieved" by the order confirming sale, and was not a "party in interest" as those terms are used in subdivision c of 11 U.S.C.A. § 67. I have proceeded to a decision on the merits without consideration of that contention, as the interests of the bankrupt estate and of all parties require that the validity of the sale be set at rest as promptly as possible.
The Clerk is ordered to file the within Memorandum nunc pro tunc as of that date.
NOTES
[1]  49 U.S.C.A. § 488

"(a) It shall be unlawful, unless approved by order of the Board as provided in this section
"(1) For two or more air carriers, or for any air carrier and any other common carrier or any person engaged in any other phase of aeronautics, to consolidate or merge their properties, or any part thereof, into one person for the ownership, management, or operation of the properties theretofore in separate ownerships;
"(2) For any air carrier, any person controlling an air carrier, any other common carrier, or any person engaged in any other phase of aeronautics, to purchase, lease, or contract to operate the properties, or any substantial part thereof, of any air carrier;
"(3) For any air carrier or person controlling an air carrier to purchase, lease, or contract to operate the properties, or any substantial part thereof, of any person engaged in any phase of aeronautics otherwise than as an air carrier;
"(4) For any foreign air carrier or person controlling a foreign air carrier to acquire control, in any manner whatsoever, of any citizen of the United States engaged in any phase of aeronautics;
"(5) For any air carrier or person controlling an air carrier, any other common carrier, or any person engaged in any other phase of aeronautics, to acquire control of any air carrier in any manner whatsoever;
"(6) For any air carrier or person controlling an air carrier to acquire control, in any manner whatsoever, of any person engaged in any phase of aeronautics otherwise than as an air carrier; * *."
[2]  49 U.S.C.A. § 488

"(b) Any person seeking approval of a consolidation, merger, purchase, lease, operating contract, or acquisition of control, specified in subsection (a) of this section, shall present an application to the Board, and thereupon the Board shall notify the persons involved in the consolidation, merger, purchase, lease, operating contract, or acquisition of control, and other persons known to have a substantial interest in the proceeding, of the time and place of a public hearing. Unless, after such hearing, the Board finds that the consolidation, merger, purchase, lease, operating contract, or acquisition of control will not be consistent with the public interest or that the conditions of this section will not be fulfilled, it shall by order, approve such consolidation, merger, purchase, lease, operating contract, or acquisition of control, upon such terms and conditions as it shall find to be just and reasonable and with such modifications as it may prescribe: Provided, That the Board shall not approve any consolidation, merger, purchase, lease, operating contract, or acquisition of control which would result in creating a monopoly or monopolies and thereby restrain competition or jeopardize another air carrier not a party to the consolidation, merger, purchase, lease, operating contract, or acquisition of control: Provided further, That if the applicant is a carrier other than an air carrier, or a person controlled by a carrier other than an air carrier or affiliated therewith within the meaning of section 5(8) of this title, such applicant shall for the purposes of this section be considered an air carrier and the Board shall not enter such an order of approval unless it finds that the transaction proposed will promote the public interest by enabling such carrier other than an air carrier to use aircraft to public advantage in its operation and will not restrain competition."


235 Ga. 454 (1975)
219 S.E.2d 701
MATHEWS
v.
BROWN.
30209.
Supreme Court of Georgia.
Submitted August 8, 1975.
Decided October 1, 1975.
Rehearing Denied October 28, 1975.
Oze R. Horton, for appellant.
Thomas K. McWhorter, for appellee.
INGRAM, Justice.
Appellant is the plaintiff in the trial court where he filed a suit in ejectment against the tenant of a third party seeking to establish his claim of title to the real property occupied by the tenant and also seeking mesne profits. The tenant answered that he was in possession under his landlord who had an outstanding paramount title to the property superior to that of appellant. The third party landlord was not made a party to the case, but after the tenant moved out, the landlord defended the case in his tenant's name. Appellant's motion for summary judgment was denied in the trial court and he appeals upon obtaining a certificate to do so.
The parties served interrogatories upon each other. Some were answered and some were not. The trial court, *455 after a hearing, overruled appellant's objections to two of defendant's interrogatories and also overruled appellant's motion to compel answers by defendant to several of many interrogatories addressed to him. Thereafter, in 1971, appellant's attorney stipulated the case to the active list for trial, certifying to the trial judge that the case was ready for trial as discovery and all other preliminary matters had been completed. Subsequently, in September, 1974, appellant filed his motion for summary judgment and a hearing was set on the motion for November 4, 1974. On the day before the hearing, two affidavits in opposition to the motion were served on appellant's counsel. They were considered by the trial court along with an affidavit of the appellant and other evidence presented at the hearing. The trial court determined the affidavits submitted on behalf of the defendant created an issue of material fact in the case and therefore overruled the motion for summary judgment.
Appellant seeks a reversal of the trial court's judgment on the theory that the opposing affidavits were not filed on behalf of the defendant but were actually filed on behalf of the defendant's landlord by his attorney and that the affidavits were not made on personal knowledge and create no issue for trial.
The basic legal difficulty with appellant's failure to make the landlord a party is that if he hopes to obtain a judgment that is binding on the landlord, he needs to involve him in the litigation. Where the landlord, as the real claimant to the land, is not served and has no opportunity to assert his title, he cannot be bound by the judgment rendered against his tenant. Harrison v. Hester, 163 Ga. 250 (3) (135 SE 845) (1926). Since the landlord, as the actual claimant to the title litigated here, has for all practical purposes taken over the defense of this suit, the issue of superior title to the disputed property can be adjudicated between the actual parties at interest. Therefore, we hold that the defendant's landlord, as the real claimant, can properly defend the case and was authorized to employ counsel to assert whatever claim he has to the property. However, under the present Code pleading practice the landlord should be made a formal party to the case.
*456 The landlord was authorized to defend the suit in his tenant's name under the former practice without being formally joined as a party. See Sanford v. Tanner, 114 Ga. 1005, 1010 (41 SE 668) (1902). The CPA (Code Ann. § 81A-121) now permits joinder of parties by the court on its own initiative at any stage of the action and on such terms as are just. As the landlord has in fact defended the suit, the trial court is directed to enter an order formally joining him as a defendant. The case can then proceed to trial of the issues unless it is determined that appellant is entitled to summary judgment on the merits of the record before this court.
What of the sufficiency of the affidavits themselves which were filed in opposition to the motion for summary judgment? Appellant argues they create no issue of material fact and were not made on personal knowledge. The affidavits present evidence of non est factum regarding an important deed in the case, one upon which appellant relies to establish his claim of title. The affidavit of Ruby Leontine Mathews flatly asserts that she is the daughter of the grantor in the deed to appellant and that she lived with her mother and took care of her during the year the mother is alleged to have signed the deed in question. The affiant asserts plainly that, to her knowledge, her mother did not sign the deed to appellant. She also avers that she is familiar with her mother's signature, having seen her sign many times, and that affiant has examined the deed in question and the signature of the grantor thereon "does not appear ... to be the signature of her mother." Since the disputed deed bears the name of affiant's mother as the grantor, this affidavit alone raises an issue for a jury to determine as to the genuineness of the deed. See Code Ann. § 29-415.
Although neither of the two affidavits offered in opposition to the motion for summary judgment recites the affidavit is made on the personal knowledge of the affiant, it appears the facts contained therein are based on the personal knowledge of the affiant. Under these circumstances, the failure of the affidavits to assert they were made on personal knowledge will not require disregarding them. See Judge Homer Eberhardt's concurring opinion in Federal Ins. Co. v. Oakwood Steel *457 Co., 126 Ga. App. 479, 482 (191 SE2d 298) (1972), and Holland v. Sanfax Corp., 106 Ga. App. 1, 5 (126 SE2d 442) (1962).
The remaining two errors enumerated for consideration relate to the discovery rulings made by the trial court almost four years prior to the filing of the motion for summary judgment. Appellant offers no authority in support of these enumerations and we find no error. Apparently, these interlocutory rulings were not considered vital to appellant's case or his motion for summary judgment as appellant stipulated the case to the active list for trial and certified to the trial judge that all discovery was complete and thereafter filed his motion for summary judgment. We affirm and return the case to the trial court for trial with direction that the landlord, Donald W. Pendley, be formally joined as a defendant in the case.
Judgment affirmed with direction. All the Justices concur.


398 F.2d 227
37 A.L.R.3d 637
Maynard V. FOSTER and LeBaron A. Foster, Appellants,v.MOBILE COUNTY HOSPITAL BOARD, et al., Appellees.
No. 24739.
United States Court of Appeals Fifth Circuit.
June 24, 1968.

Orzell Billingsley, Jr., Birmingham, Ala., Reber F. Boult, Jr., Atlanta, Ga., Melvin L. Wulf, New York City, of counsel, Charles Morgan, Jr., M. Laughlin McDonald, Atlanta, Ga., for appellants.
Allan R. Cameron, George F. Wood, Mobile, Ala., for appellees.
Before THORNBERRY, AINSWORTH and DYER, Circuit Judges.
AINSWORTH, Circuit Judge:

1
Appellants, two Negro physicians, residing in the City of Mobile, Alabama, instituted this suit as a class action against defendants Mobile County General Hospital Board, its officers and members, to enjoin the denial of admission to the medical staff of the Mobile County General Hospital, based on allegations of racial discrimination.  Jurisdiction was predicated on  28 U.S.C. 1343 and 42 U.S.C. 1981 and 1983, also the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the Constitution of the United States, and the Civil Rights Act of 1964, 42 U.S.C. 2000a, et seq.1  Appellants, who are licensed to practice medicine in the State of Alabama, have applied for staff membership in the Hospital.  Their applications were denied on the basis of the 'By-Laws, Rules and Regulations' of the Medical Staff of the Hospital which require, as a prerequisite to admission to the staff, that applicants be members of the Mobile County Medical Society and further that each application be signed by at least two members of the active medical staff of the Hospital who are acquainted with the applicant, attesting to his character and general fitness.  Neither of these requirements has been met by appellants.2

2
The Hospital staff is composed of practicing physicians in Mobile County, Alabama.  Staff membership may be temporary or regular.  Temporary privileges, although not conditioned upon membership in the Mobile County Medical Society, are automatically revoked upon failure of the physician to apply for staff membership within six months.  The regular staff consists of the courtesy staff and the teaching staff.  The teaching staff is subdivided into associate teaching and active teaching.  Membership in the Mobile County Medical Society is a prerequisite for any position on the regular staff.

3
Staff membership by a physician is a requirement for admission and treatment of patients in the Hospital.  Any patient of appellants (or any other non-staff physician) who requires hospital treatment and who is able to pay for services must be cared for by a staff physician who is remunerated by the patient.  Use by a physician of the Hospital's facilities is also contingent upon his being a member of the staff.  The Hospital is the only public hospital in the County and the largest in the area.  Among other services it provides facilities and treatment for most of the charity patients in the County and operates on a 24-hour schedule for emergencies.

4
Thus appellants, by reason of their being denied staff membership, are restricted in their medical practice.  Unless the care of appellants' patients is transferred to other physicians who have staff membership, the patients are denied the use of the Hospital's modern electronic and mechanical equipment and emergency lifesaving devices and materials readily available in this Hospital which operates on a large scale and has access to substantial public funds.  Appellants' rights to adequate financial remuneration for the care of their patients in the Hospital, rights to which they are entitled by virtue of their training and experience, are also severely curtailed.  The physician and patient must forego the doctor-patient relationship so important to both of them.

5
In Wyatt v. Tahoe Forest Hospital District, 174 Cal.App.2d 709, 345 P.2d 93, 97 (1959), a California appellate court, recognizing the importance of a physician's right to practice medicine in a hospital, said:

6
'It is common knowledge that a physician or surgeon who is not permitted to practice his profession in a hospital is as a practical matter denied the right to fully practice his profession.  In this day of advanced medical knowledge and advanced diagnostic techniques much of what a physician or surgeon must do can only be performed in a hospital.'

7
Appellants are unquestionably qualified to follow their profession.  They are graduates of Meharry Medical School, Nashville, Tennessee.  Both are members of the Gulf Coast Medical Society, the Alabama Medical Society, and the National Medical Association.  Dr. Maynard V. Foster, is licensed to practice in Alabama, Kentucky, and Michigan.  He completed his internship at Hurley Hospital, Flint, Michigan, where he was the top student in his class which consisted of eleven interns.  He treats an estimated seventy-five to a hundred patients a day.  Dr. LeBaron A. Foster interned at St. Joseph Mercy Hospital, Pontiac, Michigan, and is temporarily serving as a Captain in the U.S. Army Medical Corps in Augusta, Georgia.  He is licensed to practice medicine in Alabama and Georgia.  The record does not indicate that admission of appellants to the Hospital staff was denied because of lack of professional qualifications.  The only basis for denial evident from the record is the failure of the applicants to meet the two requirements-- membership in the Mobile County Medical Society (which necessitates endorsements from four Society members) and endorsement of their applications by two Hospital staff physicians.

8
The District Court, after trial on the merits without a jury, found that there was no evidence of racial discrimination, that the admission requirements were reasonable, and denied injunctive relief.  While we agree that the evidence does not support a finding of discrimination based on race, this determination alone does not preclude appellants from prevailing if there are other grounds alleged which would entitle them to the relief they seek.  The question, therefore, which we must decide is whether the requirements of the 'By-Laws, Rules and Regulations' of the Medical Staff of the Hospital, by which appellants are excluded from practice in the Hospital, are unreasonable or arbitrary and thus violative of the Fourteenth Amendment.

9
It is not disputed by appellees that the Mobile County Hospital Board, which was created by Act No. 46 of the Alabama Legislature, and which receives both state and federal funds, is a public institution.  Its acts, therefore, are state acts subject to the provisions of the Fourteenth Amendment.  Ex parte Commonwealth of Virginia, 100 U.S. 313, 25 L.Ed. 667 (1880); Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, 19 (1958); Robinson v. State of Florida, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771 (1964).3

10
That such state action demands equal treatment of members of the same class (i.e. physicians) is a fundamental requisite of equal protection rights.  Any distinction between such members must be on a reasonable basis.  Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965).  Moreover the distinctions which are drawn must in some way relate to the purpose of the classification made.  Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966); Rinaldi v. Yaeger, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966); McLaughlin v. State of Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964); Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957).

11
The bylaws of the Hospital medical staff which require membership in the Mobile Medical Society thus discriminate between members and nonmembers of the Society, all of whom are members of the same profession, thereby denying the nonmembership class the equal protection demanded by the Constitution.  The distinctions drawn between members and nonmembers of the Mobile County Medical Society are not related to the express purpose for the formation of the medical staff, stated in the staff's bylaws to be, 'To insure that all patients admitted to the hospital or treated in the outpatient department receive the best possible care.'  Nor do such distinctions rest on any reasonable basis, such as the professional and ethical qualifications of the physicians or the common good of the public and the Hospital, which may be constitutionally applied in determining the class of people who are eligible to practice medicine in a public hospital.  Undoubtedly reasonable conditions may be imposed by the Hospital, but we do not view the requirements of the endorsement by two staff members as having satisfied that standard, as the necessary endorsements may be arbitrarily and discriminatorily withheld.  The staff bylaws provide for no appeal or review procedure to an applicant who has been unable to secure the requisite endorsements; they provide for no right to be heard in order that the applicants might present their qualifications or the right to be informed on what basis they are excluded.  Cf. Wyatt v. Tahoe Forest Hospital District, supra; Sussman v. Overlook Hospital Ass'n, 95 N.J.Super. 418, 231 A.2d 389 (1967).

12
In Ware v. Benedikt, 225 Ark. 185, 280 S.W.2d 234 (1955), the Arkansas Supreme Court struck down as invalid a public hospital bylaw which conditioned admission to practice in the hospital upon approval and recommendation of a county medical society.  The Indiana Supreme Court reached the same result in similar factual circumstances in Hamilton County Hospital v. Andrews, 227 Ind. 217, 84 N.E.2d 469, 85 N.E.2d 365 (1949).4  The Hamilton case is also authority for the principle that a rule which permits a hospital to appoint new members to its staff only on the recommendation of that staff is invalid.  In that case the Indiana Supreme Court, in discussing requirements for admission, said (84 N.E.2d at 472):

13
'The present rules, however, provide that the hospital can appoint new members to its staff only upon recommendation of its staff.  It would seem by this rule, recommendation to membership may be rejected by the board, but that no one shall be made a member of the staff without such recommendation.  This is an unreasonable requirement, * * *.  'It will be further noted that by the involved rules, appellee's right to practice in the hospital is not only conditioned on his being a member of the staff, but also on his being a member of the Hamilton County Medical Society, an extra governmental agency.  His admission to this society depends entirely upon the sole determination of the society.  Medical Soc. of Mobile County v. Walker, 1944, 245 Ala. 135, 16 So.2d 321; Harris v. Thomas, Tex.Civ.App. 1920, 217 S.W. 1068; McKane v. Adams, 1890, 123 N.Y. 609, 25 N.E. 1057, 20 Am.St.Rep. 785.  4 Am.Jur. Associations and Clubs 11, p. 462.  Whether he could ever become a member depends upon conditions beyond his control.  By this rule the hospital again delegates its power to determine what physicians may use its facilities.  It amounts to a preference in favor of the society and a discrimination against those physicians who by choice or otherwise, are not members of same.'

14
We, therefore, remand this case to the District Court for the entry of a judgment permanently enjoining the defendants from limiting admission to the medical staff of the Hospital on the basis of the articles of the bylaws requiring membership by appellants in the Medical Society of Mobile County and further requiring that each application of appellants be signed by at least two members of the active medical staff, and for such other relief consistent with this opinion.

15
Reversed and remanded.

1
 The complaint alleged that the members of the class were so numerous as to make it impractical to bring them individually before the court.  However, the evidence shows that there are eleven Negro physicians licensed to practice in Mobile County.  Sic of the eleven are staff members of the Hospital.  Of the remaining five, only the two appellants have applied for, and have been denied, admission to the Hospital staff.  Obviously the action cannot be maintained as a class action.  Rule 23, Fed.R.Civ.P.  Nevertheless, appellants themselves, having been denied admission to the Hospital staff, have asserted a litigious right and are properly before the court to challenge the admission requirements
42 U.S.C. 1983 provides that 'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'

2
 'Article III, Section 1-- Qualifications-- The applicant for membership on the Medical Staff * * * shall be a member of the Medical Society of Mobile County. * * *'
'Article III, Section 3, Subsection 3a-- Temporary Hospital Privileges--* * * each application must be signed by at least two members of the Active Medical Staff who are acquainted with the applicant, attesting that he has such character and general fitness as justifies his being granted hospital privileges.'  Both letters denying admission to the medical staff are dated December 8, 1965, and are signed by the Administrator of Mobile General Hospital.
The letter to Dr. M. V. Foster reads: 'In reply to your letter of December 2, after due consultation with members of the Executive Committee of the Medical Staff and with members of the Hospital Board, I am returning your application for completion.
'Article III, Section 1, of the Staff Constitution states:
'The applicant for membership on the Medical Staff shall be a graduate of an approved or recognized medical or dental school, legally licensed to practice in the State of Alabama, and shall be a member of the Medical Society of Mobile County or the Dental Society of Mobile County.'
'Article III, Section 3, Subsection 3a states:
'Furthermore, each application must be signed by at least two members of the Active Medical Staff who are acquainted with the applicant, attesting that he has such character and general fitness as justifies his being granted hospital privileges.'
'Your application is therefore returned for fulfillment of these two constitutional requirements.  If you wish to re-submit it upon completion, it will be reconsidered.'
The letter to Dr. LeBaron A. Foster is substantially identical and based on the same reasons.

3
 Cf. Bell v. Georgia Dental Association, N.D.Ga., 1964, 231 F.Supp. 299; Hawkins v. North Carolina Dental Society, 4 Cir., 1966, 355 F.2d 718

4
 See also the recent decision of Milford v. People's Community Hospital Authority, 380 Mich. 40, 155 N.W.2d 835 (1968), condemning hospital staff privilege requirements based on arbitrary standards and procedures


89 Ill. App.3d 344 (1980)
411 N.E.2d 1123
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
BOBBY BEVIS, Defendant-Appellant.
No. 77-1685.
Illinois Appellate Court  First District (2nd Division).
Opinion filed October 7, 1980.
Ralph Ruebner and Michael Mulder, both of State Appellate Defender's Office, of Chicago, for appellant.
Bernard Carey, State's Attorney, of Chicago (Marcia B. Orr, Joan S. Cherry, and Barry S. Pechter, Assistant State's Attorneys, of counsel), for the People.
Judgment affirmed.
Mr. PRESIDING JUSTICE PERLIN delivered the opinion of the court:
Defendant, Bobby Bevis, was charged by information with one count of attempt rape in violation of section 8-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 8-4), one count of deviate sexual assault *345 in violation of section 11-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 11-3), and one count of indecent liberties with a child in violation of section 11-4(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 11-4(a)(3)). Following a bench trial defendant was found guilty as charged. The convictions for attempt rape and deviate sexual assault were merged into the conviction for indecent liberties with a child. Defendant was sentenced to a term of four to five years.
This appeal presents no question as to the guilt of defendant but only the question of whether defendant was denied a speedy trial.
For reasons hereinafter set forth, we affirm the judgment of the circuit court of Cook County.
Defendant was charged with the above offenses on October 6, 1976. On February 22, 1977, defendant answered ready for trial. Several continuances were then granted upon motions by the State. On June 28, 1977, 127 days after defendant had answered ready for trial, the State, accompanied by its witnesses, answered ready for trial. At that time the State requested and was granted over objections by defendant leave to amend the information charging defendant with deviate sexual assault. The information was amended to read "oral copulation upon her" rather than "oral copulation upon him." Defense counsel then requested a continuance stating that he needed additional time to prepare because of the amendment. The trial judge granted defendant's request that the cause be continued until August 3, 1977, three days past the statutory term.
 1 Defendant contends that he was not tried within 160 days of his demand for trial as required by section 103-5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(b)) and thus the trial court erred in denying his motion for discharge.
Section 103-5(b) provides in pertinent part:
"Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by defendant * * *."
Every person not tried in accordance with subsection (b) must be discharged from custody or released from the obligations of his bail or recognizance. (Ill. Rev. Stat. 1975, ch. 38, par 103-5(d).) With respect to offenses allegedly committed prior to March 1, 1977, a delay occasioned by the defendant tolls the running of the statute, and a new statutory period commences to run from the date to which the case had been delayed. (People v. Donaldson (1976), 64 Ill.2d 536, 540, 356 N.E.2d 776; People v. Lee (1969), 44 Ill.2d 161, 166, 254 N.E.2d 469.) In determining whether the delay is occasioned by the defendant, the applicable test is whether the act of the defendant contributed to cause the delay, or *346 created the necessity for postponement of trial. (People v. Fosdick (1967), 36 Ill.2d 524, 528-29, 224 N.E.2d 242; People v. Boyce (1977), 51 Ill. App.3d 549, 553, 366 N.E.2d 914.) A reviewing court must carefully examine the surrounding facts and circumstances to prevent a mockery of justice either by technical evasion of the right to a speedy trial by the State, or by discharge of a defendant by a delay in fact caused by him. Fosdick, at 529.
 2 While defendant admits that his own continuance[1] put the trial beyond the 160-day period, he argues that the State forced him into the position of requesting the continuance by amending the information. The record indicates that when the State amended the information on June 28, 1977, there were 33 days remaining in the initial 160-day period. While it may have been reasonable for defendant to delay to examine and evaluate the amended information, defendant still had 33 days in which to go to trial within the 160-day period, and yet he voluntarily had the case continued to a date three days later. (People v. Lovitz (1976), 39 Ill. App.3d 624, 630-31, 350 N.E.2d 276.) Contrary to defendant's intimations, there is nothing in the record to indicate that the State intentionally delayed amending the information in order to prejudice defendant's right to a speedy trial. The record fails to reflect any bad faith on the part of the State. Although the State did not seek to amend the information until nearly nine months after it was filed, we cannot reasonably conclude that defendant could have been surprised or prejudiced by the amendment substituting "oral copulation upon her" for "oral copulation upon him." The complaint for preliminary examination, which defendant had in his possession, stated that defendant "committed the offense of [d]eviate [s]exual [a]ssault in that he * * * by force compelled [the victim] to submit to an act of deviate sexual assault * * * by involving [the victim's] sexual organs with his mouth * * *." The record further reflects that the State fully complied with discovery and thus defendant was in possession of the police report. Accordingly, we are of the opinion that the delay must be charged against defendant and tolled the running of the 160-day period.
In support of his contention that the delay on June 28, 1977, should not be attributed to him, defendant cites People v. Beyah (1977), 67 Ill.2d 423, 367 N.E.2d 1334, People v. Shields (1974), 58 Ill.2d 202, 317 N.E.2d 529, and People v. Sharos (1974), 24 Ill. App.3d 265, 320 N.E.2d 351. These cases are inapposite to the case at bar. In Beyah, our supreme court, at page 428, ruled that "`it was the court, and the court alone, which proposed and interjected the matter of a continuance.'" In Shields, our *347 supreme court ruled that the State had violated the defendant's right to a speedy trial by demanding discovery information instanter from defendant's attorney, who had been appointed only seven days before the expiration of the statutory period. In that case it is clear that defendant was entitled to a reasonable time to produce the answers required, and that such a necessary delay should not be charged against defendant. In Sharos, the appellate court specifically found that defendant's request for a continuance was attributable to the State's failure to comply with discovery and therefore the delay was not occasioned by defendant. Nevertheless, the court opined at page 267 that compliance was made in sufficient time to commence trial long before the expiration of the 160 days.
 3 While we will not permit the State to evade a defendant's right to a speedy trial, neither will we permit a defendant to evade prosecution by creating a delay. A fair and objective appraisal of the proceeding of June 28, 1977, demonstrates that the delay beyond the 160-day period was occasioned by defendant. In our opinion the State has not deprived defendant of either his constitutional or statutory rights to a speedy trial. Thus, the trial court did not err in denying defendant's motion for discharge.
Based upon the foregoing, we affirm the judgment of the circuit court of Cook County.
Affirmed.
STAMOS and DOWNING, JJ., concur.
NOTES
[1]  Defendant's motion for discharge and his argument on the motion admit that he requested the continuance.