text:
    Frank WATSON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 40598.
    Court of Criminal Appeals of Texas.
    Oct. 4, 1967.
    G. Ben Bancroft, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., Charles T. Conaway, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The appellant, represented by counsel, was convicted upon his plea of guilty and waiver of a trial by jury of passing a forged instrument, and his punishment was assessed at two years.

It is insisted that the evidence introduced by the state is insufficient to support a conviction on the ground that it fails to show that the appellant knew the check was forged at the time it was passed.

The statement of facts reveals that the appellant personally and by counsel in open court, waived in writing the appearance, confrontation and cross-examination of the witnesses Clyde E. Moffett and Mabel Barbieri. The appellant stipulated in writing that if said witnesses testified, each would testify in accordance with his respective affidavit, which were introduced in evidence without objection. He further stipulated that he was the same person charged in the indictment, and that the allegations therein charging the offense of passing as true a forged instrument were true and correct, and that the acts alleged occurred in Bexar County, Texas. He also agreed in writing and under oath that all stipulations entered into were true and correct.

The affidavit of Clyde E. Moffett reveals that he identified the check attached thereto which bore the name and signature of Clyde E. Moffett as maker and marked it for identification by placing his initials thereon; that the signature on said check was not written or authorized by him and was a forgery. The check introduced in evidence bears the same description as the one described in Moffett’s affidavit, and as described in the indictment.

The affidavit of Mabel Barbieri reveals that a man gave her a $50 check while she was engaged as a cashier at a store; that the check exhibited to her while making the affidavit was identified by her as the same check which was passed to her for $50 in money, and she marked the check for identification by placing her initials thereon; that she took the photograph accompanying the check at the time she cashed it; that the man appearing in the photograph was the same man who signed the name Gilbert Pena on said check and passed it to her; that said check was returned by the drawee bank marked “Signature does not agree with the one on file”; and that she could identify Frank Watson as the same person who gave her the check.

The appellant did not testify or offer any evidence in his behalf.

In entering his plea of guilty and during the trial, the appellant orally and in writing admitted that his true name was Frank Watson, Jr. The check was payable to Gilbert Pena, and it was signed Gilbert Pena by the person passing it to Mabel Barbieri, and after it was so signed in her presence she cashed it; and that on the date of her affidavit, she could then identify Frank Watson as the person who gave her the check.

The possession of a forged check, the unauthorized signing by the appellant of another person’s name on it, and then passing it for face value in money is sufficient to warrant the conclusion that the appellant knew the check was a forgery. The facts and circumstances in evidence are sufficient to support the conviction. Even if this were not so, we observe that the written stipulation of the appellant that all the allegations of the indictment were true and correct was under oath and was introduced into evidence.

The proceedings appear to be regular and in compliance with Arts. 1.13 and 1.15 Vernon’s Ann.C.C.P., relating to pleas of guilty before the court in non-capital felony cases.

Error is also urged on the ground that the trial court considered, as a basis for denying appellant’s application for probation, a charge against him which was dismissed by the state.

At the beginning of his trial on March 23, 1967, the appellant filed a written application requesting that he be granted probation.

Upon the call of this case for trial the following transpired:

“The Court: You are Frank Watson, Jr.?
“Defendant: Yes, sir.
“The Court: You are the same Frank Watson, Jr., that was charged in this Court with another offense in which this same lawyer, Mr. Ben Bancroft, was appointed to represent you, is that correct?
“Defendant: Yes, sir.
“The Court: I believe at that time you entered a plea of not guilty to the other offense, not to this offense, is that right?
“Defendant: Yes, sir.
“The Court: Since that time you have been indicted in this Cause No. 66868, charging you with the offense of Passing as True a Forged Instrument * * *.
“The Court: Mr. Bancroft, I understood that you have been representing this young man on other matters before your appointment this morning, is that correct ?
“Mr. Bancroft: Just on two indictments, your Honor.”

Upon the trial court finding the appellant guilty and assessing his punishment at two years the trial was then continued pending a pre-sentence investigation and report.

When the trial was resumed on April 7, 1967, the following occurred:

“The Court: Mr. Watson, this Court has gone over your probation report and has gone over it very carefully, and in view of your past record and in view of the fact that there has been another charge against you, which was dismissed and, in view of the past history, this Court is going to deny your probation and sentence you to serve the term of two years.”

The report of the pre-sentence investigation is not included in the record and its contents are not shown. The ‘nature of the charge dismissed and the grounds for such dismissal are not shown.

The granting of probation resting solely within the discretion of the trial judge, it is concluded that, from, the record, he did not abuse it in denying appellant probation.

The judgment is affirmed.


source: Caselaw Access Project

author: WOODLEY, Presiding Judge.

license: Public Domain

text:
    Ex parte Jack YOUNG.
    No. 40775.
    Court of Criminal Appeals of Texas.
    Sept. 14, 1967.

      Jack Young, pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is a habeas corpus proceeding in which the applicant seeks release from confinement in the Texas Department of Corrections under a final conviction in a felony case.

Petition presented originally to this Court is one of the means by which the constitutional authority of the Court of Criminal Appeals to “issue the writ of habeas corpus” may be invoked and the power vested in said Court “upon affidavit or otherwise to ascertain such matters of fact as may be necessary to the exercise of its jurisdiction” applied. (Art. V, Sec. 5, Constitution of Texas, Vernon’s Ann.St.)

Another means by which relief from confinement under a void conviction for a felony may be obtained is that provided by the statute, now Art. 11.07, Vernon’s Ann.C.C. P. as amended, that is by petition originally presented to a district court or judge thereof who likewise have constitutional authority “to issue writs of habeas corpus”. Art. V, Sec. 8, Constitution of Texas.

We are now faced with the duty of construing said Art. 11.07 of the 1965 Code of Criminal Procedure as amended by SB 145, Acts of the 60th Legislature, p. 1734, effective August 28, 1967, in the light of the following :

New concepts of the meaning of due process announced by the Supreme Court of the United States are binding on State as well as Federal Judges, and their duties and responsibilities in the administration of federal constitutional law are co-equal.

A judgment of conviction obtained in violation of due process of law is void for want of jurisdiction of the court to enter such judgment. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837.

Habeas corpus is an appropriate means by which relief from confinement under a void conviction may be obtained in the State as well as in the Federal Courts. Ex parte Bush, Tex.Cr.App., 313 S.W.2d 287; Ex parte McCune, 156 Tex.Cr.R. 213, 246 S.W.2d 171; Ex parte Puckett, Tex.Cr.App., 310 S.W.2d 117; Ex parte Traxler, 147 Tex.Cr.R. 661, 184 S. W.2d 286; Ex parte Church, 163 Tex.Cr.R. 357, 292 S.W.2d 120.

Under recent decisions of Federal Courts sitting in Texas, Art. 11.07 C.C.P. 1965 provides an effective, adequate and speedy post conviction remedy in that it offers the applicant the opportunity for a full and fair state court fact-finding hearing of the sort dictated by the Supreme Court in Townsend v. Sain, 372 U.S. 293, 9 L.Ed.2d 770, 83 S.Ct. 745, but

The original filing in the Court of Criminal Appeals of a petition for writ of habeas corpus is “virtually ineffective” for providing the type of fact-finding hearing promulgated in Townsend v. Sain; and

The denial of an application for writ of habeas corpus filed originally in the Court of Criminal Appeals by a convicted felon is not exhaustive of the post conviction remedy available under Texas law. Harris v. Beto, decided January 7, 1967, Memorandum Order, Northern District of Texas; Castillo v. Beto, decided March 1, 1967, Memorandum Order, Northern District of Texas; Carroll v. Beto, 379 F.2d 329, 1967, Memorandum Order, Northern District of Texas (affirmed, Carroll v. Beto, 270 F.Supp. 812, 1967, 5th Circuit Court of Appeals).

Certiorari will be granted by the Supreme Court and the denial of a petition for writ of habeas corpus presented originally to the Court of Criminal Appeals alleging facts which, if proved, would render the applicant’s confinement under a felony conviction illegal and entitle him to relief without a hearing such as dictated in Townsend v. Sain will be vacated with costs and the case remanded to the Court of Criminal Appeals for further proceedings not inconsistent with the Supreme Court’s opinion. See Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526; Ex parte Greer, Tex.Cr.App., 408 S.W.2d 711.

Where the applicant is entitled to a writ or a hearing on his petition and is denied such right, the Court of Criminal Appeals may hear the petition as an original proceeding. Ex parte Pearce, Tex.Cr.App., 230 S.W.2d 830; Ex parte Gomez, Tex.Cr.App., 241 S.W.2d 153; Ex parte Geter, Tex.Cr.App., 383 S.W.2d 405. See also Ex parte Williams, 169 Tex.Cr.R. 96, 331 S.W.2d 940.

Under prior decisions the Court of Criminal Appeals is not bound by the findings of the district judge but decides the case upon facts ascertained “by affidavit or otherwise.” Art. V, Sec. 5, Constitution of Texas.

The resolution of disputed issues of fact has not heretofore been left with the district judge, subject to review of the Court of Criminal Appeals, either where the petition was presented to the district judge under Art. 11.07 or presented originally to the Court of Criminal Appeals. (See Ex parte Church, 163 Tex.Cr.R. 357, 292 S.W.2d 120, where the judge of the trial court failed to certify the facts, as requested, and the Court of Criminal Appeals assumed that the allegations of the petition originally presented to said court were true; and State ex rel. Wilson v. Briggs, Tex.Cr.App., 351 S.W.2d 892, where the Court of Criminal Appeals declined to be bound by findings of a district judge.)

The distinction between issuing the writ and granting the relief prayed for in the petition of an applicant seeking relief from confinement under a felony conviction has been particularly important in Texas procedure because, under the statute the district judge may issue the writ but may not order the applicant released. However, the Supreme Court in Townsend v. Sain, supra, has promulgated the rule that a Federal Court must grant an evidentiary hearing to a state convict applicant “under the following circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state court-hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. * * * There cannot even be the semblance of a full and fair hearing unless the state court actually reached and decided the issues of fact tendered by the defendant. * * * [Sjtate factual determinations not fairly supported by the record cannot be conclusive of federal rights.” Townsend v. Sain, supra.

Unless the Court of Criminal Appeals grants relief and orders an applicant released final decision on his petition for writ of habeas corpus after conviction in a felony case rests with the Supreme Court of the United States, either by appeal or certi-orari from the denial of relief by the Texas Court of Criminal Appeals, or by appeal from the order of a Federal district or circuit court granting or denying post conviction release.

Orderly state procedure may not be deliberately bypassed. Having exhausted state remedies which are presently available to him, the state prisoner may be granted a hearing in the Federal District Court. He need not have applied for writ of certiorari to the Supreme Court from the denial of relief by the Court of Criminal Appeals. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837.

Art. 11.07 applies only in felony cases. Some of the other articles found in Chapter Eleven are relevant after conviction but others are not.

Art. 11.01 defines writ of habeas corpus to be an order issued by a court or judge of competent jurisdiction, directed to any one having a person in custody, or under his restraint, commanding him to produce such person at a time and place named in the writ, and show cause why he is held in custody or under restraint.

In habeas corpus after conviction the writ returnable to the Court of Criminal Appeals does not serve the purpose of having the convicted felon produced before said court, and the question is not why he is confined in the Texas Department of Corrections but whether the judgment of conviction under which he is so confined is void.

For convenience we quote Art. 11.07 as amended, indicating the changes and omissions from the statute as re-enacted in 1965 and emphasizing the additions thereto.

Art. 11.07, as amended in 1967, SB 145, Acts 60th Legislature, p. 1732 (at p. 1734).

“After indictment found in any felony case, and before conviction, the writ must be made returnable in the county where the offense has been committed.
“After final conviction in any felony case, the writ must be made returnable to the Court of Criminal Appeals of Texas at Austin, Texas. The writ may issue upon the order of any district judge, and said judge may upon presentation to him of a petition for said writ, set the same down for a hearing as to whether the writ should issue, and ascertain the facts, which facts shall be transmitted to the Court of Criminal Appeals with the return of the writ if same is issued after such hearing. Provided further, that should such writ be returned to the Court of Criminal Appeals without all the facts accompanying same; ee -without all ⅛® ■faets deemed necessary by the Court of Criminal Appeals, said court may designate and direct any district judge or judges of this state to ascertain the facts necessary for proper consideration of the issues involved. WHEN A PETITION FOR WRIT OF HABEAS CORPUS PRESENTED TO THE JUDGE OF THE CONVICTING COURT CONTAINS SWORN ALLEGATIONS OF FACT, WHICH, IF TRUE, WOULD RENDER PETITIONER’S CONFINEMENT UNDER THE FELONY CONVICTION ILLEGAL, THE ATTORNEY REPRESENTING THE STATE IN SAID COURT AND THE ATTORNEY GENERAL OF TEXAS SHALL BE AFFORDED AN OPPORTUNITY TO ANSWER SUCH ALLEGATIONS, AND IF IT APPEARS THAT THERE ARE ISSUES OF FACT WHICH ARE MATERIAL ON THE QUESTION OF WHETHER THE PETITIONER IS ILLEGALLY RESTRAINED WHICH HAVE NOT BEEN RESOLVED, THE PETITIONER MAY BE GRANTED A HEARING ON SUCH ISSUES OF FACT AND THE JUDGE CONDUCTING SUCH HEARING SHALL MAKE AND FILE HIS FINDINGS OF FACT AND CONCLUSIONS OF LAW. It shall be the duty of the official court reporter of the district judge or judges so designated to forthwith prepare a narration of the facts adduced in evidence upon any such hearing and transmit the same, TOGETHER WITH THE JUDGE’S FINDINGS OF FACT AND CONCLUSIONS OF LAW, to the clerk of the Court of Criminal Appeals within ten days of the date of such hearing. And it shall be the duty of the district clerk of the county wherein the writ is issued to make up a transcript of all pleadings in such case and to transmit the same within thirty days to the clerk of the Court of Criminal Appeals. Provided, that upon good cause shown, the time may be extended by the Court of Criminal Appeals for filing of such narration of facts or transcript.
“The clerk ef the Court- ef Criminal Appeals shall- ferihwitk deeket the cause a«4 same shall he heard hy the coast at the ea-r-llest practleable timer
THE COURT OF CRIMINAL APPEALS MAY DENY RELIEF UPON THE FINDINGS AND CONCLUSIONS OF THE HEARING JUDGE WITHOUT DOCKETING THE CAUSE, OR MAY DIRECT THAT THE CAUSE BE DOCKETED AND HEARD AS THOUGH ORIGINALLY PRESENTED TO SAID COURT OR AS AN APPEAL. Upon reviewing the record the court shall enter its judgment remanding the petitioner to custody or ordering his release, as the law and facts may justify. The mandate of the court shall issue to the court issuing the writ, as in other criminal cases. After conviction the procedure outlined in this Act shall be exclusive and any other proceeding shall be void and of no force and effect in discharging the prisoner.
“Upon any hearing by a district judge by virtue of this Act, the attorney for petitioner, and the state, shall be given at least ese THREE full day’s notice before such hearing is held.”

In view of the foregoing, we now hold that Art. 11.07 of the 1965 Code of Criminal Procedure as amended:

1. Supplies statutory authority for the resolution of contested factual issues material on the question of whether the petitioner (more properly referred to as “applicant” Art. 11.13 V.A.C.C.P.) is illegally restrained under a judgment of conviction in a felony case after a full and fair hearing on the issues tendered by the petition.

2. Furnishes statutory authority whereby the Court of Criminal Appeals may accept and adopt the findings of the district judge on such disputed issues of fact or review such findings to ascertain whether they are fairly supported by the transcription of the evidence and the record, including specific authority to deny relief upon the findings and conclusions of the district judge without docketing the cause. Unless otherwise agreed by the parties with the approval of the judge, the “narration of the facts adduced” shall consist of a transcription of all of the proceedings shown by the court reporter’s notes.

3. Authorizes the judge of the convicting court to require that the petition contain sworn allegations of fact rather than mere conclusions. Oath “that the allegations of the petition are true, according to the belief of the petitioner,” Art. 11.14 V.A.C.C.P., would not meet the requirement that the post conviction petition contain sworn allegations of fact, and allegation such as that petitioner was denied due process of law or effective aid of counsel would not be sufficient as “allegations of fact.”

4. Supplies statutory authority whereby the judge of the convicting court may afford his district attorney and the Attorney General the opportunity to answer the sworn allegations of the petition before determining whether to grant a hearing; whether the facts alleged under oath, if proved, would render the applicant’s confinement under the felony conviction illegal, and if so whether such facts are disputed or have been resolved (such as at the trial or during the pendency of the motion for new trial or the appeal, or a prior collateral hearing).

5.Adds to Art. 11.07 provisions which relate to petitions presented to the judge of the convicting court which offer the most effective and speedy procedure for obtaining relief from confinement under a void felony conviction. This warrants our conclusion that in view of the authorities cited above the applicant should be required to first petition the judge of the court where he was convicted before his petition will be considered by the Court of Criminal Appeals or the Federal Courts.

Upon petition being presented to him as provided in Art. 11.07 as amended, the judge of the convicting court may:

Grant or deny the petition in the same manner as any other district judge, with or without a hearing. If the facts are undisputed the district judge may so certify in issuing or refusing to issue the writ.

If the undisputed facts or the facts resolved by him after hearing warrant such proceedings, the judge of the convicting court may be in position to afford the applicant rights which have been denied him, such as counsel on appeal; record on appeal; effective aid of counsel on appeal; determination of voluntariness of confession; and nunc pro tunc proceedings to supply or correct the record. See Ex parte Brown, Tex.Cr.App., 210 S.W.2d 597; Ex parte Church, 163 Tex.Cr.R. 357, 292 S. W.2d 120; Ex parte Hannen, 155 Tex.Cr.R. 10, 230 S.W.2d 236; Ex parte Brian, Tex.Cr.App., 389 S.W.2d 467; Ex parte Mixon, Tex.Cr.App., 396 S.W.2d 417 (in which the writer dissented).

In this way the applicant may, in some instances, be afforded all of the relief which the Court of Criminal Appeals or the Federal Court would afford him under the facts.

As we construe Art. 11.07 it requires that where a hearing on disputed fact issues is granted by the judge of the convicting court, the attorney for applicant and the state shall be given at least three full days notice and the judge conducting such hearing shall make his findings of fact and con-elusions of law to be transmitted to the Clerk of the Court of Criminal Appeals with a narration of the facts in the same manner as any judge designated by the Court of Criminal Appeals to ascertain the facts, without regard to whether a writ of habeas corpus returnable to the Court of Criminal Appeals is issued. However, no district judge is required to entertain a petition for writ of habeas corpus and may deny a petition presented to him without a hearing and without finding or conclusion, in which event the applicant may present his petition to another district judge or to the Court of Criminal Appeals.

The omission of the provision that the cause which reaches the Court of Criminal Appeals by writ of habeas corpus returnable to said court “shall be heard at the earliest practicable time” does not change the rule that “Habeas corpus cases will have precedence * * (Rules of the Court of Criminal Appeals (4)

Our construction of Art. 11.07 as amended (1) furnishes support for the holding of the Federal District Courts sitting in Texas that said statute provides an effective, adequate and speedy post conviction remedy, whereas original filing in the Court of Criminal Appeals does not; (2) supplies the need of the Federal Courts for fact-findings as well as a record from which they may de-:ermine whether a hearing in Federal Court '.s required under Townsend v. Sain, supra; and (3) provides for fact-findings which the Court of Criminal Appeals or the Federal Courts may adopt.

(4) Is consistent with the Supreme Court’s concepts of due process of law and its rules promulgated in Townsend /. Sain, supra, as to when a Federal District Court must grant a hearing, includ-.ng the exhaustion of state remedies (Fay v. Noia, supra).

(5) Preserves the final authority vested n the Court of Criminal Appeals in habeas corpus under the Constitution and statutes af Texas, and

(6)Gives effect to the portion of Art. 11.07 which provides:

“After conviction the procedure outlined in this Act shall be exclusive and any other proceeding shall be void and of no force and effect in discharging the prisoner.”

The primary responsibility now being cast upon the convicting court by the amendment of Art. 11.07, the Court of Criminal Appeals will no longer exercise its constitutional original jurisdiction to entertain petitions seeking post conviction relief from confinement under a felony case unless it be shown that the petition, or one containing like sworn allegations of fact, has been presented to the judge of the convicting court.

The petition for writ of habeas corpus is denied without prejudice. No motion for rehearing will be entertained and mandate shall issue.


author: DICE, Judge.

text:
    Ex parte David CONTRERAS.
    No. 40554.
    Court of Criminal Appeals of Texas.
    July 26, 1967.

      No attorney of record on appeal, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

This is a habeas corpus proceeding in which appellant seeks his release from custody of the sheriff of Brown County.

On October 26, 1966, appellant waived a jury and entered a plea of guilty, in the County Court of Brown County, in Cause No. 14,825, to a charge of driving while intoxicated and was assessed punishment at six months in jail and a fine of $500.

Thereafter, on January 13,1967, appellant presented to the Honorable Joe B. Dibrell, Judge of the 35th Judicial District Court of Brown County, his petition for writ of ha-beas corpus, in which he alleged that the judgment of conviction for driving while intoxicated was void because he was informed by the county judge of Brown County that if he entered a plea of guilty to the charge he would be assessed a penalty of three days in jail and a fine of $85 and with that understanding he agreed to plead guilty.

Upon presentation of the petition, Judge Dibrell granted the writ of habeas corpus and set a date for hearing.

At the hearing, appellant swore that when he entered the plea of guilty he thought he would receive punishment of three days in jail and a fine of $85 and that he would not have entered such plea had he known the punishment would be a fine of $500 and six months in jail. Appellant admitted, however, that he knew the latter punishment was a possible sentence which could be assessed in the case but that the judge told him “that either it would be three days in jail and $85.00, or if I didn’t arrange something with the car dealer then it would be six months and $500.00.”

County Judge William O. Breedlove testified that in no way did he intimate to appellant that if he entered a plea of guilty his punishment would be assessed at three days in jail and a fine of $85, but that he told appellant the punishment would be a minimum of three days in jail and a $50 fine or a maximum of one year in jail and a $500 fine.

Under the record, the court did not err in denying appellant relief.

The judgment is affirmed.


text:
    Allen Wayne WILBURN, Appellant, v. The STATE of Texas, Appellee.
    No. 40434.
    Court of Criminal Appeals of Texas.
    July 26, 1967.
    Lawrence R. Green (On Appeal Only), Dallas, for appellant.
    Henry Wade, Dist. Atty., Curtis Glover, Harryette Bercu and Malcolm Dade, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for felony theft; the punishment, enhanced under Art. 63, Vernon’s Ann.P.C., by reason of two prior convictions for felonies less than capital, life imprisonment.

Mrs. Helen Graves, the prosecuting witness, testified that she and her husband operated a ladies’ ready-to-wear business in the city of Dallas. She related that on the day in question she went to the warehouse area in the building and saw appellant standing and facing a rack of dresses, with some merchandise in his arms. When she yelled, “What are you doing?,” appellant turned around, faced her, and then ran some fifteen or twenty feet to a loading dock. She screamed and appellant dropped the merchandise just inside the building and fled from the scene. Twenty-four items of merchandise were dropped by appellant, consisting of ladies’ dresses, blouses, and a child’s swim suit. Mrs. Graves testified that she did not give appellant permission to take the property and that it was taken without her consent. She also stated that the market value of the property taken was in excess of $200.

Two prior convictions of the appellant for felony theft, alleged in the indictment for enhancement were stipulated by the parties.

Appellant did not testify, but called witnesses who gave testimony in support of a defense of alibi.

Such defense was submitted by the court in his charge and by the jury rejected in their verdict of guilty.

We overrule appellant’s first ground of error, in which he contends that the evidence is insufficient to support the conviction because there is no proof of a “taking” of the property from the possession of the owners.

Art. 1412, V.A.P.C., of the general theft statutes provides:

“To constitute ‘taking’ it is not necessary that the property be removed any distance from the place of taking; it is sufficient that it has been in the possession of the thief, though it may not be moved out of the presence of the person deprived of it; nor is it necessary that any definite length of time shall elapse between the taking and the discovery thereof; if but a moment elapse, the offense is complete.”

The evidence in the instant case shows that appellant had manual possession of the merchandise. Under the statute, no definite length of time between the taking and the discovery is required, as the mere lapse of a moment is sufficient to make the offense complete. To constitute a taking it was not necessary that the property be removed from the presence or the premises of the owners. Senter v. State, Tex.Cr.App., 411 S.W.2d 742. Appellant’s control and management of the property and flight from the scene were sufficient to show his fraudulent intent.

In his remaining ground of error, # 2, appellant complains of the court’s action in permitting evidence which showed the occupation of one Bob Maloney to be that of a parole officer.

On cross-examination of the prosecuting witness, Mrs. Helen Graves, appellant inquired if she had a conversation with one Bob Maloney, who had represented himself as a state official, in which conversation she stated that some of the items of property listed as stolen had been taken in other thefts. Mrs. Graves denied having any such conversation.

On cross-examination of Mrs. Graves’s husband, L. C. Graves, appellant inquired if he had a conversation with a person by the name of Maloney, who represented himself to be some type of state official, in which conversation he told Maloney that some of the items of property listed as stolen were taken in previous thefts. In answer to the inquiry, L. C. Graves admitted having a conversation with the man by the name of Maloney, who represented himself to be a state official, but denied that he stated the items of property were taken in other thefts.

On redirect examination, the witness Graves was permitted to testify, over appellant’s objection of hearsay, that Ma-loney told him he was a parole officer.

Appellant, having first gone into and elicited testimony relative to the conversation between L. C. Graves and Maloney, authorized the state to further inquire into and offer testimony as to the conversation. Art. 38.24, V.A.C.C.P.; Stickney v. State, 169 Tex.Cr.R. 533, 336 S.W.2d 133; Livingston v. State, 103 Tex.Cr.R. 372, 280 S.W. 802.

It is observed that no connection was shown between appellant and the person by the name of Maloney, and therefore no consequential harm to appellant by the admission of the testimony. The ground of error is overruled.

The judgment is affirmed.


text:
    Ezell JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 40635.
    Court of Criminal Appeals of Texas.
    Oct. 4, 1967.
    Philip Sanders, Austin, for appellant.
    Thomas D. Blackwell, Dist. Atty., and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for murder; the punishment, sixty years.

One ground of error is urged by appellant, which complains of the court’s refusal to grant a new trial because of alleged jury misconduct.

In his original and amended motions for new trial which were supported by the affidavit of one of the jurors, appellant alleged that, during the jury’s deliberation as to punishment, one of the jurors stated that if a person were given life imprisonment he would be released in seven or eight years, which statement resulted in several jurors changing their verdict from a lesser number of years to sixty years in the penitentiary.

At the hearing, three jurors, two of whom had made affidavits in the case, were called to testify.

Juror Eric Kasper testified that during the jury deliberation on punishment the parole law was discussed but no juror purported to know the law. In the discussion, the James Cross case from Travis County was mentioned and it was stated that Cross, who received a life sentence, would be released on parole in seven or eight years. After this discussion, the juror changed his vote from twenty to sixty years.

Mrs. Olga Schultz, another juror, testified that she originally voted for punishment of twenty-five years and that after discussion of the parole law in which one of the jurors stated that a person given a life sentence could get out in seven or eight years, she changed her verdict to sixty years. She stated that no one on the jury purported to know the parole law and the discussion was based upon what had been read in the newspapers about the Cross case.

On one occasion, the jurors asked a deputy sheriff if he knew anything about the parole law and his reply was that it was not any of their concern.

R. L. Gardner, another juror, who had originally voted for a term of twenty-five years, testified that it was only after the jury had discussed the matter of parole and the James Cross case was mentioned with some juror stating that he had read in the newspapers that a person given a life sentence could be released in seven or eight years, that he finally voted for sixty years. He further stated that no juror purported to know the parole law and how it worked.

From the jurors’ testimony it appears that, while they did discuss the matter of a parole, no one professed to know the law, or made a misstatement of the same.

In De La Rosa v. State, Tex.Cr.App., 317 S.W.2d 544, this court pointed out that not every mention of parole during the jury deliberations constitutes reversible error and it is only where the discussion involves an incorrect statement of the law that a reversal will be ordered.

The statement made by one of the jurors based upon what he had read in the newspapers — that a person who received a life sentence could be released in seven or eight years — was not a misstatement of the law, under the provisions of Art. 42.12, Sec. 15, Vernon’s Ann.C.C.P. of 1965, and Art. 6184l, Vernon’s Ann.Civ.St., in force at the time of appellant’s trial.

Moore v. State, Tex.Cr.App., 346 S.W.2d 349, cited by appellant, is not here controlling, under the facts.

Under the record, we perceive no error and the ground of error is overruled.

The judgment is affirmed.


author: WOODLEY, Presiding Judge. BELCHER, Judge.

text:
    Fred BROOKS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 40421.
    Court of Criminal Appeals of Texas.
    June 7, 1967.
    Rehearing Denied Oct. 4, 1967.

      Fred Reynolds, Gene Starkey, Houston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is murder without malice (Art. 802c Vernon’s Ann.P.C.) ; the punishment, 3 years.

Notice of appeal was given on November 18, 1966, when sentence was pronounced.

The record on appeal, including transcript of the portion of the reporter’s notes requested by appellant, was approved by the trial judge on March 11, 1967, and filed in this court on April 17, 1967.

No brief for appellant was filed in the trial court pursuant to Art. 40.09, Sec. 9, Vernon’s Ann.C.C.P.

There is no showing that appellant was indigent or that he was represented by court appointed counsel.

Appellant’s brief filed in this court on May 30, 1967, presents no ground for reversal which he is entitled to have reviewed as unassigned error.

The judgment is affirmed.

OPINION

ON APPELLANT’S MOTION FOR REHEARING

BELCHER, Judge.

The offense is murder without malice (Art. 802c V.A.P.C.); the punishment, three years.

The failure to grant his application for a change of venue is urged by the appellant as a ground of error.

The record does not reveal that the application was supported by the affidavit of two credible persons as required by Art. 31.03, V.A.C.C.P. This omission renders the application fatally defective. Holcomb v. State, 172 Tex.Cr.R. 392, 356 S.W.2d 932; Sheffield v. State, Tex.Cr.App., 371 S.W.2d 49.

Error is also urged on the ground that the trial court should have changed the venue on his own motion for the reason that the decedent was the mother of the district clerk, and there was no way to insure the appellant a fair and impartial trial except to change the venue; and again erred for the same reason in refusing to grant appellant’s amended motion for a new trial.

The motion to change venue alleged that the decedent was a respected and beloved citizen and the mother of the district clerk whose personal interest in the outcome of the trial was so great that nothing could be done to insure a fair and impartial trial in said county. The amended motion for new trial further alleged a bias and prejudice against him among the 14,000 population of said county, with the clerk as leader of a dangerous combination, and full newspaper coverage, which prevented him from getting witnesses and affidavits showing bias and prejudice against him, a stranger, without friends or family in the county.

The indictment herein was returned by the grand jury June 18, 1966. It alleged that the appellant on or about December 30, 1965, was driving a motor vehicle upon a public highway while intoxicated when he killed the deceased, Alma Sprott Jones, named in the indictment; and the trial began on August 1, 1966.

The state filed its controverting affidavit to appellant’s first amended motion for new trial.

At the hearing, August 1, 1966, on the motion to change venue, Howard Jones, called by the appellant, testified that he had been district clerk since 1958; that his mother, who had been active in church and civic work, was killed in the automobile collision alleged in the indictment; that he filed the indictment returned by the grand jury against the appellant, kept the jury list in his office, and delivered a certified copy thereof to the sheriff at the direction of the judge; that he performed all the duties as district clerk for thirteen criminal cases, including appellant’s case, which were set for trial for August 1, 1966; that he called the list of jurors on the panel; that when this case was called for trial his services upon direction of the judge was discontinued in this case, and another person was appointed to perform them; and that the appellant was a stranger in the county. In addition to the foregoing testimony given on the original hearing, Jones testified on the motion for new trial that he sat in the courtroom during the trial. He also testified that in his opinion appellant could have a fair trial in the county.

Billy Dove, editor of the local newspaper, testified that he first saw the appellant at the scene of the collision, and next saw him when he took his picture in the corridor, of the jail, which he published along with an article about the collision in his newspaper on January 6, 1966, and that the decedent’s name also appeared in the obituary column ; that he did not personally know the decedent; that he did not recall any hostility against the appellant; that his paper had a circulation of about 2,000; and he expressed the opinion that appellant could have a fair trial in that county.

Lorean Lambeth, operator of a wrecker service, testified that she went to the scene of the collision; that she had heard persons talking about appellant being drunk at time of collision and they were “upset” because of his condition; and expressed the opinion. that appellant could get a fair trial in the. county.

The trial court did not abuse its discretion in refusing to change the venue or to grant the first amended motion for a new trial.

We are unable to agree with appellant’s contention that the court’s failure to change the venue deprived appellant of a fair trial or to due process of law.

The remaining grounds of error urged in appellant’s brief filed in this court relate to the court’s charge to which there were no objections.

There are no formal bills of exception.

Appellant’s motion for rehearing is overruled.


author: MORRISON, Judge.

text:
    Carl Matthew WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 40501.
    Court of Criminal Appeals of Texas.
    July 19, 1967.

      Aultman & Riley, by Ronald Aultman, Fort Worth, for appellant.
    Frank Coffey, Dist. Atty., Grady Hight, Glenn Goodnight and R. W. Crampton, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is murder without malice; the punishment, five years.

In view of the fact that this conviction must be reversed, a recitation of the facts will not be deemed necessary.

Appellant’s Bill of Exception No. 5 and his exception to the court’s charge found in the record disclose that while the court was reading his charge to the jury, appellant’s counsel observed for the first time that it contained a misstatement of the law in that it assumed that the jury had already found appellant guilty and was at that time passing upon the question of punishment only, which was not the case, as the State was seeking the death penalty, and there was not a separate hearing on punishment. Before the judge had completed the reading of his charge, appellant’s counsel approached the bench and notified the court that he wanted to except to the same and immediately did so in longhand, which was by the court overruled in writing.

The fatal error in the court’s charge will be demonstrated by quoting therefrom the form of verdict to be used in the event the jury desired to recommend probation:

“You are instructed that, in this case, the defendant has filed a pleading in writing, under oath, stating that he has never before been convicted of a felony in this, or any other state, and requesting that the imposition of the sentence herein be suspended, that he be placed on probation as provided by law. * * * ”
“You are therefore instructed that, if you find that the defendant has never before been convicted of a felony in this or in any other state, and if you assess his punishment at confinement in the De-, partment of Corrections for a term not to exceed ten years, then, if you so desire in your discretion as a jury, to recommend that the Court suspend the imposition of such sentence as you may impose, and that the defendant be placed on probation then the form of your verdict will be as follows. * * * ”

The provisions of Article 693, V.A. C.C.P., 1925, and its predecessors which provided “If the plea is not guilty, it (the jury) must find that the defendant is either guilty or not guilty” was carried forward in paragraph 1 of Article 37.07 of the 1965 Code. The verdict authorized by the court which ■ recommended probation would not, standing alone, comply with the requirement of Section 1 of Article 37.07, Vernon’s Ann.C.C.P.

In addition to the above we also call attention to the error of the court in refusing to make the services of the court reporter, who was seated in a room adjacent to the courtroom, available to appellant during the voir dire examination of the jury. Recently in Morris v. State, Tex. Cr.App., 411 S.W.2d 730, we had occasion to discuss the same question. There we said, “[tjhere can be no doubt but what the learned trial judge erred in failing to comply with all of its (Article 40.09, Sec. 5, V.A.C.C.P.) terms.” We affirmed Morris because in that case the appellant was standing upon the failure of the court to comply with his request for a reporter alone and there was no claim or showing that he was in any way injured by the court’s ruling. Such is not the case at bar where appellant’s counsel twice during the voir dire examination, of the panel vehemently urged that he was being deprived of valuable testimony by which he could show that one juror was disqualified and that possibly a number of the panel might have received information de hors the record which might have disqualified each of them.

For the errors pointed out, the judgment is reversed, and the cause is remanded.


author: PARKER, Justice.

text:
    GENERAL AIR CONDITIONING COMPANY, Inc., Appellant, v. THIRD WARD CHURCH OF CHRIST et al., Appellees.
    No. 6923.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 7, 1967.
    Rehearing Denied Oct. 4, 1967.
    Schlosser & Whitcomb, Houston, for appellant.
    Bobby H. Caldwell, Houston, for appel-lees.
   PARKER, Justice.

General Air Conditioning Company, Inc., as plaintiff below, sued Third Ward Church of Christ and Henry J. Webb for services and materials for which Webb had agreed to pay the plaintiff $6,850.00. Through August of 1965 Webb had paid General Air Conditioning Company, Inc. all of such consideration except $1,400.00. The Church had a contract with Webb for improvements on property owned by it. Webb was the general contractor. Plaintiff below was a subcontractor. Plaintiff sued Webb and the Church for the unpaid balance due it of $1,400.00, attorney’s fees and costs, seeking to establish and foreclose “its statutory and constitutional lien” on such property owned by the Church, as perfected under the provisions of Articles 5452 to 5469, both inclusive, of the Revised Civil Statutes of the State of Texas. Trial was to the court which entered judgment on December 6, 1966: (a) In favor of General Air Conditioning Company, Inc. against Webb, from which no appeal has been taken, (b) That the plaintiff, General Air Conditioning Company, Inc., failed to establish a statutory mechanic’s and materialman’s lien against the property of the Church, (c) Declaring that the statutory mechanic’s and materialman’s lien claimed by plaintiff as recorded in the M & M Lien Records of Harris County was of no force and effect, cancelling and removing it as a cloud upon the property of the Church, and (d) Denied any recovery by General Air Conditioning Company, Inc. against the Church. General Air Conditioning Company, Inc. will be called appellant and the Church will be called appellee.

Appellant’s first point of error is the trial court erred in rendering judgment that appellant’s mechanic’s lien was ineffective and of no force and effect. The work contracted by Webb to be performed for the Church was accepted by the Church on November 6, 1965 with full payment made to Webb by November 10, 1965. This included payment for the work and materials by appellant under its contract with Webb. On December 2, 1965 appellant wrote Third Ward Church of Christ that it had not been paid $1,400.00 of the consideration for the work done by it for Webb for the benefit of the Church; that the president of such company had been ordered to immediately file an M & M lien on the property of the Church. On December 6, 1965 by letter the Church advised appellant that Webb was paid in full through Commercial Title Company. On December 17, 1965 appellant notified appellee: “In compliance with Article 5453 of the Revised Civil Statutes of Texas, General Air Conditioning Company, Inc. is hereby notifying you of an outstanding indebtedness owing to them in the amount of $1,400.00 for materials and labor furnished and delivered to or for the above named project * * *, etc.” On December 20, 1965 appellant’s lien and affidavit was filed with the county clerk of Harris County, Texas, and recorded in Volume 124, p. 18, of the M & M Lien Records. Appellee did not retain 10% of the contract price for a period of 30 days after the completion of the job as defined in Article 5469. There was no agreement for retainage of 10%.

Under the facts, appellant did not have a valid debt or lien in any amount against the property of appellee. Texas & Northern Railway Co. v. Logwood, 401 S. W.2d 886 (Tex.Civ.App.1966, n.w.h.) and authorities cited on p. 890 of such opinion; Marek v. Goyen, 346 S.W.2d 926 (Tex.Civ.App.1961, n.w.h.). Appellant’s first point of error is overruled.

Appellant’s second point of error is that the trial court erred in failing to find and file findings of fact and conclusions of law as requested by appellant. There is a statement of facts in this case. From it, it appears there are no issues in this case other than those that can be seen in the statement of facts. The judgment contains findings of fact and conclusions of law. No prejudice resulted to appellant by the failure of the trial court to make and file its findings of fact and conclusions of law. McClendon v. McClendon, 289 S.W.2d 640 (Tex.Civ.App.1956); Norris v. Vaughan, Tex.Civ.App., 256 S.W.2d 156. Appellant’s second point of error is overruled.

Judgment of the trial court is affirmed.


author: SHARPE, Justice.

text:
    AMERICAN BRAKE SHOE COMPANY, Appellant, v. B. F. COOMBS d/b/a B. F. Coombs Company, Appellee.
    No. 293.
    Court of Civil Appeals of Texas. Corpus Christi.
    Aug. 31, 1967.
    Rehearing Denied Sept. 28, 1967.

      Neal King, of Hill, King & McKeithan, Mission, for appellant.
    Asa V. Bland, of Atlas, Schwarz, Gur-witz & Bland, McAllen, for appellee.
   OPINION

SHARPE, Justice.

This appeal is from a judgment rendered after jury trial in favor of B. F. Coombs, d/b/a B. F. Coombs Company, appellee here and plaintiff below, against American Brake Shoe Company, a corporation, appellant here and defendant below, in the amount of $12,134.29.

Appellee sued appellant for commissions allegedly owing under a written agreement effective June 1, 1960, under which appellee was appointed a commission agent for the sale of alloy casting products within Texas and Louisiana to be manufactured by the Electro-Alloys Division of appellant. Ap-pellee’s recovery was based upon (1) the amount of $6,958.94 representing 10% commission on sales of merchandise made by him prior to December 31, 1964, not actually shipped until after that date but prior to February 8, 1965, and (2) the amount of $5,175.35 representing 3% commission on two sales made to Union Carbide Corporation, one in 1960 and the other in 1964, on orders originating outside of appellee’s territory, but which he claimed were placed pursuant to his promotional activities entitling him to such commission under certain provisions of the contract.

Appellant asserts thirteen points of error. Appellant’s first seven points and appellee’s first three counterpoints relate to appellee’s recovery of $6,958.94. Appellant’s points eight through thirteen and appellee’s counterpoints four and five relate to appellee’s recovery of $5,175.35.

Under appellant’s first seven points the contentions are made that appellee was not entitled to judgment on merchandise ordered in 1964 and shipped in early 1965 because (1) the contract was terminated at the end of 1964 by oral notice given by appellant timely reiterated in writing and received by appellee who acted on it without protest, even though such notice was not given in writing by registered mail sixty days prior to termination as provided by the contract; (2) appellee was estopped to complain of want of formality of the notice, (3) appellee agreed to appellant’s proposal to terminate the contract by his words and conduct, (4) the doctrine of election, as submitted by special issues 3 and 4, has no application, (5) the evidence is legally insufficient to support the jury answers to special issues 3 and 4, (6) (7) the evidence is factually insufficient to support the jury answers to special issues 3 and 4.

We will first consider appellant’s points one and three.

Paragraph 12 of the contract, omitting subdivision (c) thereof which is not material here, reads as follows:

“12. Duration and Termination. This agreement shall continue in effect from the effective date hereof until terminated only as follows:
(a) By mutual agreement in writing; or
(b) After a period of one year by either party at will, with or without cause, upon sixty (60) days’ notice in writing given by registered mail; * * * ”

Appellant’s basic contention is that there was an oral modification by the parties of the prior written agreement; that the oral notice of termination given by appellant, timely reiterated twice in writing, was sufficient even though not given by registered mail, because appellee received the same and acted on it without protest. Appellant says there was a termination of the contract as a matter of law at the end of 1964, and there were no jury issues.

Appellant relies on the following testimony and evidence. In September 1963 Mr. Roy Cannon, sales manager of appellant met with appellee in Port Arthur, Texas, and discussed the contract and termination thereof. Appellant says that the conversation there established an oral modification of the contract so that it would terminate at the end of 1964; that pursuant thereto, appellant sent Mr. Bob Goddard to Texas in January 1964 as appellee’s replacement to begin taking over appellee’s territory; that thereafter in 1964 appellee wrote a letter in July 1964 replied to by Cannon for appellant by letter dated July 14, 1964 which letters confirmed the termination date of Dec. 31, 1964; that on October 29, 1964 Cannon wrote a letter to appellee confirming the oral agreement of September 1963 with the request that appellee sign the same and return a copy to Cannon, which appellee did not do; that, finally, on December 8, 1964, Cannon wrote appellee a letter sent by registered mail in which he terminated the contract in accordance with paragraph 12 thereof, but stated the termination date to be at the close of business December 31, 1964.

Appellee contends that appellant did not conclusively establish an oral modification of the contract so that it would terminate on December 31, 1964; that appellant did not conclusively establish that appellee accepted appellant’s alleged oral modification of the written contract which would have changed the provision for termination by sixty days written notice sent by registered mail; and that appellant did not request or obtain jury findings in such respects. We agree with appellee’s said contentions.

The conversation between Mr. Cannon in September 1963 was at best equivocal as to the method of terminating the contract. Cannon orally expressed the intention to terminate appellee’s agency at the end of 1964 but there was no discussion concerning the termination provisions of the written agreement. In particular, nothing was said with regard to the requirement that written notice be given by registered mail for 60 days prior to the actual termination date. Appellee testified that he never agreed that such notice of termination need not be given in the manner provided by the contract. The letters written by Mr. Cannon to appellee during 1964 and appellee’s letter to Cannon in July 1964, do not conclusively establish a modification of the termination provisions of the written agreement. Mr. Cannon’s letters of October 29, 1964 read as follows:

Appellee refused to agree to the last-mentioned written proposal made by Cannon and made a counter-proposal. Whereupon, Cannon wrote the registered letter of December 8, 1964 terminating the contract, which reads as follows:

Both parties cite the case of Stowers v. Harper, 376 S.W.2d 34 (Tex.Civ.App., Tyler, 1964, wr. ref. n. r. e.). That case recognizes the rule that a written agreement not required to be in writing by the Statute of Frauds can be modified by a subsequent oral agreement. However, the court also held as follows:

“ * * * The determination of the existence of a modification of a contract will depend upon the intention of the parties, and therefore becomes a question of fact. San Antonio Machine & Supply Co. v. Allen, Tex.Civ.App., 268 S.W. 532. The burden of proof was on the defendant. He must prove that his proposed modification was made known to the plaintiff and that the plaintiff accepted the terms of his proposed modification.” 376 S.W. 2d 39.

Here it appears that appellant failed to conclusively establish there was either an oral or written modification of the contract which would change the method of notice provided for by it. At best, there was a fact issue as to whether appellee orally agreed that the method of termination would be changed, and no issue in such respect was submitted to the jury. The rule stated in Stowers v. Harper, supra, is applicable. In the absence of a conclusive showing or a jury finding that appellee accepted appellant’s proposed oral modification of the written contract, appellee was entitled to insist upon compliance with the termination provision of it. Appellant did not give written notice of termination by registered mail until December 8, 1964. The merchandise involved in the sales made by appellee, amounting to $69,589.40 was all shipped within 60 days of that date so as to entitle appellee to commissions of $6,958.94. Error is not reflected by appellant’s points one and three.

Under appellant’s point two the contention is made that appellee was estopped to complain of the want of formality of the notice given by appellant. Appellant contends that its defense of estoppel was conclusively established, hence no issues were presented for jury determination.

In Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 932 (1952) the court said:

“On the question of estoppel we find that Tn order to constitute an equitable estoppel or estoppel in pais there must exist a false representation or concealment of material facts; it must have been made with knowledge, actual or constructive, of the facts; the party to whom it was made must have been without knowledge or the means of knowledge of the real facts; it must have been made with the intention that it should be acted on; and the party to whom it was made must have relied on or acted on it to his prejudice.’ 31 C.J.S., Estoppel, § 67, page 254. Also, ‘Before an estoppel can be raised there must be certainty to every intent, and the facts alleged to constitute it are not to be taken by argument or inference. Nothing can be supplied by intendment. No one should be denied the right to set up the truth unless it is in plain contradiction of his former allegations or acts. If an act or admission is susceptible of two constructions, one of which is consistent with a right asserted by the party sought to be estopped, it forms no estoppel.’ Id. § 77, page 282, et seq.”

Appellant argues that throughout 1964 it had two men in Texas, appellee and Mr. Goddard, his ultimate replacement ; that appellee introduced Goddard as such replacement; that appellee went on advisory status and virtually stopped work while accepting full commissions for the last quarter of-1964; that appellee’s words and conduct could only convey to appellant his agreement to appellant’s proposal to terminate the contract at the end of 1964. Appel-lee points out, however, that there is no evidence of any benefits which flowed to appellee other than the normal ones which he was entitled to receive under the written contract; that there is no evidence of any detrimental effect on appellant as a result of appellee’s insistence upon notice of termination as provided by the written contract; that the evidence shows that appellant obtained a large volume of sales from appellee during 1964; that Mr. Cannon conceded that appellant wanted appellee to stay on to help the new man in the territory, and that appellee could open a lot of doors in the territory that probably no one in appellant’s organization could open. Under the rules stated in Gulbenkian v. Penn, supra, and the evidence in this case it appears that, at best, fact issues were presented as to appellant’s defense of estoppel. Since no such issues were submitted, appellant’s estoppel contention is not well taken. Appellant’s point two is overruled.

Under points four, five, six and seven appellant contends that the doctrine of election, as submitted by issues 3 and 4, has no application here; that the evidence is legally and factually insufficient to support the jury answers to such issues.

Special issues 3 and 4 together with the jury answers thereto read as follows:

“SPECIAL ISSUE NO. 3:
Do you find, from a preponderance of the evidence, that the Defendant elected to terminate the contract in question by giving 60 days notice in writing by registered mail?
Answer ‘Yes’ or ‘No’.
We, the Jury, answer Yes.
If you have answered the foregoing Special Issue ‘Yes’, then you will answer the following Special Issue, otherwise you need not answer it.
SPECIAL ISSUE NO. 4:
Do you find, from a preponderance of the evidence, that the Defendant gave the 60 days notice in writing by registered mail on December 8,, 1964?
Answer ‘Yes’ or ‘No’.
We, the Jury, answer Yes.”

It is undisputed that appellant gave notice of termination of the contract by its registered letter dated December 8, 1964, hereinabove copied in full. That letter followed appellant’s letter of October 29, 1964 to which was attached the letter of the same date proposing that appellee agree to termination as of Dec. 31, 1964. Appellant refused to sign the same, and a subsequent telephone conversation between Mr. Cannon and appellee did not resolve the matter, but pointed up the differences of the parties. Apparently, Mr. Cannon, appellant’s representative, in view of the dispute, desired to finally settle the matter and gave notice of termination by registered letter, which made specific reference to paragraph 12 of the contract and invoked appellant’s rights thereunder. Under these conditions, we believe that issues 3 and 4 were properly submitted and that the jury answers thereto are supported by evidence which is legally and factually sufficient under the rules laid down by the Supreme Court in Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965). Appellant’s points 4, 5, 6 and 7 are overruled.

Under point number eight, appellant contends that the trial court erred in overruling its special exception to appellee’s allegation in substance that he was entitled to commissions on sales to Union Carbide resulting partly from his efforts on orders placed outside appellee’s territory for shipment into it.

The contract was attached to and made a part of appellee’s amended petition. It provided commissions to appellee on sales to Union Carbide as follows:

“A 3% commission on sales to Union Carbide Chemicals Company, where said products have been ordered outside of said Territory pursuant to promotional activity of the Agent for shipment into said Territory.”

Appellee alleged that the 1961 order of Union Carbide in the amount of $54,000.-00 was received by appellant “partly as a result of Plaintiff’s promotional activities” and that the 1964 order in the amount of $118,511.59 “was at least in part as a result of Plaintiff’s promotional activities in his territory.”

Appellant’s special exception, which was overruled by the trial court, reads as follows:

“Defendant excepts to the allegations contained in paragraph III of said petition to the effect that the two orders there described resulted in part, or partly, from the plaintiff’s promotional activities and that a commission is therefore payable. The contract in suit provides for no such obligation.”

The trial court correctly overruled said special exception. The contract did not require that orders placed by Union Carbide outside of appellee’s territory for shipment into it be solely caused by the promotional activities of appellee in order for him to earn a 3% commission. The contract obviously required activity on the part of other representatives of appellant on this type of sale. Appellee’s promotional activities were sufficient to earn a 3% commission if they were partly responsible for such outside orders. That type of sale is to be contrasted with the other type of sale actually made by appellee within his territory, and upon which he was entitled to a 10% commission under the contract. Appellant’s point eight is overruled.

Appellant’s point nine asserts that the trial court erred in submitting' special issues 1 and 2 inquiring of performance by ap-pellee in terms materially different from those alleged.

Special issues 1 and 2 together with the jury answers read as follows:

“SPECIAL ISSUE NO. 1:
Do you find, from a preponderance of the evidence, that the sale to Union Carbide represented by Defendant’s Order No. 60-2360 was pursuant to promotional activity of the Plaintiff, B. F. Coombs?
Answer ‘Yes’ or ‘No’.
We, the Jury, answer Yes.
SPECIAL ISSUE NO. 2:
Do you find, from a preponderance of the evidence, that the sale to Union Carbide represented by Defendant’s Order No. 64-494 was pursuant to promotional activity of the Plaintiff, B. F. Coombs ?
Answer ‘Yes’ or ‘No’
We, the Jury, answer Yes.”

Much of the discussion under appellant’s point eight is applicable here. The two issues complained of were submitted in accordance with the wording of the contract. The essential inquiry made by the issues was proper and in accordance with the theory alleged by appellee. There was no material variance or difference between the pleadings and the issues submitted. Appellant’s point nine is overruled.

By points ten and eleven appellant contends that the evidence was legally and factually insufficient to support the jury answers to special issues 1 and 2, and, particularly, that the two outside sales to Union Carbide were made pursuant to ap-pellee’s promotional activities.

Mr. Frank Cannon, sales manager of appellant’s Electro-Alloys Division, testified at length concerning appellant’s relationship with appellee. A portion of such testimony concerning the 3% provision of the contract is as follows:

“Q My question is, why were you only permitting him a 3% commission on Union Carbide sales ordered outside of the territory yet giving him a 5% commission on sales to all other companies in his territory which originated outside the territory — why this distinction?
A When I was interrupted, I was getting to the other area of original equipment. This is what the contract was aimed at. On the maintenance equipment, where there is no doubt that all of the sales effort is within the State of Texas, this would be a full 10%. Where a new plant or an expansion to a plant was being built, this involved sales efforts at the engineering and construction headquarters of Union Carbide located in South Charleston, West Virginia. This also involved management people of Union Carbide at their headquarters in New York City. It was necessary for us to have sales efforts at those two places, the decision making centers; the construction and engineering group in West Virginia and the general purchasing department and management people that would pass judgment on an order of that magnitude in New York. These were large installations. The purpose of the 3% was to give an incentive to Frank Coombs to try influence the purchase of this material by working with the people in Texas. If he were able to make the people in the Texas plant recommend our materials to the people in New York or South Charleston who made the decision, he would be compensated for that effort, and this would be the 3% he would get.
Q I assume your company made the decision, if there was doubt, as to whether he was entitled to the 3% commission or not ?
A Based on the contract. If he had helped us get the order, he was entitled to the 3%.
Q You had instances where your man Jordan in the East has obtained an order and you have paid Mr. Coombs a split commission with Jordan on that type of order?
A We don’t pay Jordan a commission.
Q He is on a salary ?
A Yes. We have had cases where Frank has shown us evidence he has promoted the sale of our product in Texas and the purchase order originated in New York, and we have-paid him 3%.”

Mr. Cannon’s testimony was further in substance as follows: That one-third of appellant’s promotion of Union Carbide was in Texas, one-third in South Charleston and one-third in New York; that appellant hoped the effort would be distributed that way when it set up the 3% arrangement; that a combined effort was contemplated ; that prior to the time appellee began calling on Union Carbide (which was under a prior contract with appellant entered into in 1958 appellant sent to appellee copies of products to Texas Plants of Union Carbide; that the first shipments were in 1959; that in 1958 appellant sent to appellee copies of orders that Union Carbide had placed in other locations for appellee’s use in trying to get his foot into the door with the people in Texas; that appellant’s vice-president in charge of sales wrote appellee discussing such other orders and expressing the hope that they would be helpful in getting Union Carbide business in Texas; that in June 1960 appellee advised appellant that its tubing was not proving satisfactory at Union Carbide and would not be considered until it proved itself; that a meeting was arranged by representatives of appellant in about June 1960 at the Texas City plant of Union Carbide at which appellee was present along with representatives of both companies; that appellant’s production manager expressed the opinion that much more work was to be done with the Union Carbide people before appellant’s products would be acceptable; that appellee was appellant’s only contact on a local level with Union Carbide in Texas; that appellant made a sale in the amount of $54,000.00 to Union Carbide in Texas on an order originating in New York; that shipments began on December 8, 1960; that appellee was not paid a 3% commission on this sale or on the 1964 sale to Union Carbide because he had nothing to do with them; that when appellee found out about the said 1960 order he complained about not receiving a commission; that Cannon looked into the matter and finally explained appellant’s reasons for refusing to pay appellee a 3% commission, but in the same letter emphasized that a combined effort was needed both at purchasing and consuming locations. Mr. Cannon identified a number of letters written by representatives of appellant to appellee regarding the policy of purchasing departments of Union Carbide and others, about competitors, about doing educational work so that appellant would be the prime source of supply. Appellee wrote appellant a number of letters and reports concerning difficulties experienced at the Union Carbide plants in Texas, and was urged by appellant’s representatives to continue his efforts so that appellant could redeem itself; and to continue a combined effort. Mr. Cannon conceded that appel-lee’s promotional activities had resulted in getting appellant on the list of suppliers at Texas plants of Union Carbide. We hold that the evidence was legally and factually sufficient to support the jury answers to special issues 1 and 2. Garza v. Alviar, supra. Appellant’s points ten and eleven are overruled.

By point twelve, appellant contends that the trial court erred in admitting correspondence and testimony relating to orders and transactions not in question in this case. Appellant objected to such exhibits and testimony on the ground that same were not relevant to any material issue in this case. The correspondence, reports and other documents were from appellant’s files and were testified to by Mr. Roy Cannon, appellant’s sales manager. Mr. Cannon took the position that the two sales to Union Carbide were not pursuant to ap-pellee’s promotional activities and that he was not entitled to a 3% commission on such orders. We cannot say that the evidence complained of by appellant was wholly irrelevant to the issues presented. Some of appellant’s correspondence with appellee has been referred to under our discussion of appellant’s points ten and eleven. In a general way the evidence complained of by appellant tended to show appellant’s attitude toward promotional activities by appellee and payment of commissions on outside orders because of such activities. Appellant’s brief does not demonstrate error or harmful error in connection with point twelve, and it is overruled.

By point thirteen appellant contends that the trial court erred in granting judgment which included a commission on the 1964 Union Carbide order because there was no evidence of the amount of same. We sustain this point. Appellee alleged the amount of said 1964 sale to be $118,511.50. He established that appellant’s order number 64-494 covered this sale. However, the amount of said sale was neither testified to or shown by any instrument admitted into evidence. In connection with the 1964 sale several exhibits from appellant’s files were marked for identification, but were never offered into evidence. A letter marked for identification as Defendant’s Exhibit D-2d written by a representative of appellant to Union Carbide Corporation, New York City, N. Y. indicates that the total value of the 1964 shipment including freight in the amount of $1824.67 was $118,-511.59, but that exhibit was never offered into evidence. Under these conditions the award of $3555.35 in commissions to appel-lee on the 1964 sale was improper. That claim is severable from the remainder of appellee’s recovery and may properly be the subject of separate litigation.

The judgment in favor of appellee will be reformed and affirmed so as to award ap-pellee a recovery of $8578.94, representing $6958.94 on account of 10% commissions on sales made by appellee in 1964 on which shipments were made prior to February 8, 1965, and $1620.00 on account of 3% commission on the 1961 sale to Union Carbide. The judgment will be reversed as to appel-lee’s award of $3555.35 on the 1964 sale to Union Carbide and such severed cause of action will be remanded for new trial.

The judgment of the trial court is reformed in part, and as so modified,, affirmed; and is reversed and remanded in part in accordance with this opinion. The costs of this appeal will be assessed seventy-five percent against appellant and twenty-five percent against appellee.