text:
    Thomas EGGLESTON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 40766.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1967.
    Rehearing Denied Jan. 17, 1968.

      Mayo J. Galindo, Eugene B. Labay, San Antonio, for appellant.

      James E. Barlow, Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Judge.

OPINION

The conviction is for murder; and the punishment was assessed at ninety-nine years.

The jurisdiction of the 175th District Court of Bexar County to render the judgment of conviction in this case is challenged.

In appellant’s brief the challenge is based on the following ground:

“The Court erred in overruling Defendant’s plea to the jurisdiction of the Court. Unless he happens to he the Presiding Judge, the Judge of the 144th District Court of Bexar County, Texas, does not have the power or authority to transfer a criminal cause to the 175th District Court.”

In urging this ground as error the appellant alleged in his amended motion for new trial:

“The error of the Court in exercising its jurisdiction in this cause, Cause No. 65,766, and the indictment thereof having previously been returned by the grand jury into the 144th District Court of Bex-ar County, Texas, and said cause having been subsequently transferred to the 175th Judicial District Court of Bexar County, Texas, in a manner not authorized by law.”

It is undisputed that the 144th District Court acquired jurisdiction of this cause by the return of the indictment by the grand jury into said Court, and then by written order it transferred said cause to the 175th District Court with the consent of that Court, and said order was entered upon the minutes of the Court.

The statute (Art. 199(37) R.C.S.) expressly provides that its intent is that the 144th District Court and the 175th District Court of Bexar County shall give preference to criminal cases, while the other seven District Courts shall give preference to civil cases although, each Court has concurrent jurisdiction in both civil and criminal cases. To expedite and equalize the dockets of said Courts, the statute further provides that the Presiding Judge shall transfer, or cause to be transferred, upon approval of the Judges of said Courts, causes from one Court to another Court. The purpose and intent of the statute in providing for the transfer, of cases, upon the approval of the Judges of said Courts, could not be reasonably construed as requiring the approval of all nine Judges, but instead, that it only requires the approval of the Judge of the Court in which said cause is pending and the Judge of the Court to which the cause is transferred. It is evident that the statutory provisions for the transfer of cases, upon approval of the Judges, resulted in the Judges of the 144th and 175th District Courts, on November 23, 1964, entering a joint order for the transfer of cases between them upon the minutes of said Courts; and in pursuance thereto, on February 23, 1966, a joint order was entered transferring this cause.

From a consideration of the statute as a whole, the conclusion is reached that the transfer of this case, upon the order showing the approval of the Judges of the 144th and 175th District Courts, was authorized by virtue of the power and authority conferred by the statute. It appears that all of the procedural requirements pertaining to the making of the transfer order have been sufficiently complied with, and that the jurisdiction of the 175th District Court was legally invoked in this case.

It is contended that the trial court erred in admitting evidence showing the search of the appellant’s room in the house where he lived with his mother, and in admitting in evidence the fruits of the search.

The testimony of the state reveals that the officers went to the appellant’s mother’s house about 6 p. m., December 28, 1965, and when she came to the door they identified themselves and she said: “Yes, I am expecting you.” and invited them in; that they advised her that they wanted to search the house, telling her that she did not have to give consent, and they explained and read a written consent form to her which they filled out, and she signed it. The written consent was introduced in evidence. Upon a search of the house they found a box of shoe polish and a pistol.

The mother of the appellant, called by the state, testified that the appellant telephoned her about 5 or 6 p. m., December 28, telling her that the officers were coming to search the house and to “Let them search.” On cross-examination she testified that when the officers identified themselves at the door, she stood there awhile, and then the officer said: “We don’t have a search warrant, but it would make it better for you and for me if you let us search — easier.”; that she asked them into the house, and an officer filled out the paper which was read to her and she signed it.

The Court charged the jury on the issue of whether the appellant and his mother consented to the search, and instructed the jury that unless they found such consent was given beyond a reasonable doubt not to consider the items seized or any testimony relating to the search.

The grounds urging that the search of the house was illegal, are overruled.

The admission in evidence of the entire examining trial testimony of the state’s witness, Jerry Eng, is presented as a ground of error. In support of his position, the appellant urges that an impeached witness cannot be supported by a showing that he made statements as to other matters, upon which he was not impeached, corresponding with his testimony on the trial.

Jerry Eng with his brother, Jesse, the deceased, pursued the appellant from the store where by the use of a pistol, he had robbed their mother, Mrs. Eng. After a short distance, the appellant began shooting the pistol toward Jesse and one shot hit him in the left eye and entered his head.

Jerry Eng testified on the examining trial. During cross-examination on this trial, Jerry testified that he did not remember stating that the “man was shooting up in the air.” At this time the appellant introduced in evidence, without objection, certain pages of the transcript of the testimony of Jerry Eng on the examining trial. The state then offered the remainder of his testimony given on such occasion. Both appear in the record as State’s Exhibit 3 and Defendant’s Exhibit A. It is impossible to tell therefrom which portion of the testimony was introduced by the appellant and which was introduced by the state. It follows therefore that no error has been presented for consideration.

It is insisted that the trial court erred in refusing to enter an order allowing counsel appointed to represent the appellant $250 for expenses in connection with the investigation of this case.

The offense was committed December 27, 1965; and the appellant was arrested on December 28, 1965. On December 30, two attorneys were appointed to represent the appellant. Appointed counsel requested an examining trial on January 3, 1966, which was granted and the trial set for January 14. On January 6, counsel filed a motion in the justice court in which the examining trial was set requesting the payment of $250 for expenses. This motion was heard and denied. On January 7, the same motion was presented to the District Judge who had appointed counsel for appellant. The motion was heard and denied. Prompt payment without delay of the $250 to counsel was urged in said motions.

The indictment was returned on February 23, 1966. On July 26, the District Judge ordered the payment of $250 to the investigator for services rendered for the appellant.

Art. 26.05, Vernon’s Ann.C.C.P., in providing for compensation of counsel appointed to defend, reads in part:

Sec. 1 “(c) For expenses incurred for purposes of investigation and expert testimony, not more than $250.00;”

In light of the statute allowing expenses incurred for purposes of investigation, it appears that the refusal to pay at the time of the request here made for such services to be rendered did not constitute an abuse of discretion.

Another ground relied on for reversal is that the trial court erred in permitting Gee Eng and Jerry Eng (both Chinese) to testify as to the identity of the appellant. To support this ground, the appellant contends that the officers arrested the appellant because the occupants of their car, Lov-ings and Richardson, identified the appellant as a man they picked up near the scene of the crime, without any knowledge of the killing, except what they had read in the newspapers; and that the arrest of the appellant resulted in lineups in which he was identified by Gee and Jerry Eng.

While working in the family store about 11 a. m., December 27, Jerry Eng sold and delivered a box of shoe polish to the Negro “man” who robbed his mother moments later at the cash register; that after his mother pointed to the “man,” he and his brother, Jesse, pursued him, and the “man” shot at Jesse several times, the last shot killing him; and that he was within thirty feet of the “man” at times.

Thomas Ross testified that he saw two Chinese boys pursuing a Negro who had a pistol in his hand; that he was about twenty feet from him when he shot twice and he (Ross) later heard three shots; that the Negro had a paper bag in his left hand; that he saw the Negro get into a Chevrolet car with two men and drive away, which he pursued but was outdistanced, and returned to the scene of the robbery where he told the officers of the events which he saw occur. While testifying at the trial, he identified the appellant as the man he saw running.

Officer Castillon testified that he arrived at the scene of the robbery and killing shortly after they occurred; that he obtained a description of the “man,” the type of clothes, his size, that he was a Negro, and the car the man entered, which was driven away; that he talked with Richardson and Lovings (the two men who had picked up the Negro) the next morning, and they went to the scene and went over the route with him while they were discussing the pick up of the Negro about noon December 27; that Richardson and Lov-ings recognized and pointed out a man on the sidewalk, and he arrested him, and placed him in the “hold over” about 1:30 p. m., December 28; and continued investigating the case until he was identified by the Engs.

The testimony further shows that the appellant was taken before a magistrate about 5:15 or 5:20 p. m., December 28, where the magistrate informed him of the accusation against him, and fully advised him of his rights; that after he was advised of his rights, the appellant made three telephone calls, one to an attorney, and to whom the magistrate also talked, telling the attorney of the accusation and asked him to come to his Court. Another call was made to his mother.

During the appellant’s detention from 1:30 p. m., December 28, until he was identified in a five-man lineup and then taken before a magistrate about 5:15 p. m., the appellant never made any statements, never made any confessions, or furnished any information to the officers. No incriminating acts or statements were made by the appellant between the time of his arrest and his appearance before the magistrate. No interrogation of the appellant by anyone is shown to have occurred between 1:30 p. m., and 5:15 p. m., December 28.

It is concluded that the facts and circumstances constitute sufficient probable cause which reasonably tended to show that the appellant had committed the offenses of robbery and murder, and authorized his arrest and detention without a warrant.

The judgment was entered in this cause on September 25, 1966.

The exclusionary rule applicable to the confrontation of the accused to witnesses before trial for identification purposes without notice to and in the absence of counsel is not retroactive. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed. 2d 1199, decided June 12, 1967.

The admission of the testimony of Gee and Jerry Eng as to the identity of the appellant was not error.

The judgment is affirmed.

ONION, J., not participating.


source: Caselaw Access Project

author: WOODLEY, Presiding Judge.

license: Public Domain

text:
    Aaron ARNOLD, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 40854.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1967.
    Rehearing Denied Jan. 17, 1968.
    W. John Allison, Jr. (On Appeal Only), Dallas, for appellant.
    Henry Wade, Dist. Atty., Maicolm Dade, Joe K. Hendley and William S. Mason, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is felony theft; the punishment, enhanced by two prior convictions for robbery, life.

The first ground of error challenges the sufficiency of the evidence to sustain a conviction for felony theft.

The indictment alleged the theft of certain described deodorants, cologne, after shave lotion and cosmetic set, the values of which were alleged separately and alleged to be of the total value of over $50.00, from Wayne Littrell.

The state offered evidence to the effect that on June 14, 1966, appellant came into the Skillern’s Drug Store at 4601 McKinney, in the City of Dallas, of which Wayne Littrell was manager; walked up to a display that had just been built at the cosmetic counter and started putting things under his belt and shirt. He then went out the door that he came in (which led to the parking lot) and shortly thereafter came back to the same spot; started cramming things under his shirt, working fast, and again left through the same door and again returned to the cosmetic counter and again left the store.

Furnished the license number of the car he drove away, officers located the car and, as appellant came to it and said it was his car, placed him under arrest.

Property found in the car was identified by Mr. Littrell as belonging to Skillern’s, taken from the store of which he was manager without his consent.

The property found in the car and identified by Mr. Littrell answers the description of the .property alleged to have been stolen and the value of.each article shown by the testimony of Mr. Littrell corresponds with the values alleged, the total value being $63.75.

Testifying in his own behalf, appellant admitted that he stole some of the merchandise from the Skillern Store of which Mr. Littrell was manager, but testified that nine of the bottles of merchandise were stolen by him from another Skillern’s Store in Dallas earlier in the day.

It is upon appellant’s testimony that he took property of the value of less than $50.00 from each of the two Skillern’s Stores that the sufficiency of the evidence to sustain his conviction for felony theft is predicated.

The issues as to the property being taken from Wayne Littrell and being of the value of over $50.00 were submitted to the jury and resolved against appellant. We find the evidence sufficient to sustain the verdict.

Mr. Littrell testified that the merchandise had Skillern’s labels which were not identifiable by store but further testified that he had just set up the special display and he himself replaced the merchandise that was taken from the counter and it “* * * fit in so perfectly that it went back in the deal just like I — it just went back in that deal and fit like a glove on your finger.”

The prior convictions alleged for enhancement were proved and admitted by appellant who also testified that he had been convicted and gone to the penitentiary four times.

Appellant’s first ground of error is overruled.

His second ground of error relates to the remark of the Assistant District Attorney in his closing argument on the question of guilt or innocence wherein he stated: “I say this much; the habitual laws in this state, it seems to me, were designed * * at which point appellant’s counsel made objection which the court sustained and the jury was instructed to disregard “anything about habitual laws,” but a motion for a mistrial was overruled.

There was evidence before the jury when the complained of remarks were made, some of which was elicited by appellant’s counsel, to the effect that appellant had been previously convicted of five different offenses involving the unlawful acquisition of another person’s property and appellant had testified:

“Q. Okay, Arnold. Now actually, what it boils down to is that this jury has a choice, actually, just to send you back over there to County Jail and let you sit around for two years or send you down to the penitentiary for life, isn’t it?
“A. That’s right.
“Q. And you have been convicted, actually, of five different felony cases?
“A. I pleaded guilty to four.”

The trial court did not err in refusing to declare a mistrial.

The judgment is affirmed.


author: BELCHER, Judge.

text:
    Santiago Quintanilla GUTIERREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 40908.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1968.
    F. B. Godinez, Jr., Pharr, for appellant.
    Oscar B. Mclnnis, Dist. Atty., Dennis E. Hendrix, Asst. Dist. Atty., Edinberg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for the possession of marihuana with a prior conviction for the same offense alleged for enhancement. The punishment was assessed at ten years.

For reversal, the appellant urges error on the ground that there is a very serious question about the chain of possession of the marihuana which was reportedly found in the car of the appellant on the night that he was apprehended.

Officer Lackey testified that he took the paper bag found in appellant’s automobile (State’s Exhibit Number One) home with him on the night in question and kept it until the next day when he personally handed it to Dr. Whigham. Later, Dr. Whigham personally delivered the same hag to him and that its contents appeared to be the same. Next, he took it to Oscar B. Mclnnis, District Attorney, and together they placed it in the evidence locker in the District Attorney’s office.

Dennis E. Hendrix, Assistant District Attorney, testified that he took State’s Exhibit Number One from the evidence locker in the District Attorney’s office and delivered it to Dr. Queen for examination; that he saw Dr. Queen make the examination, and then Dr. Queen returned it to him and he placed it in the evidence locker in the District Attorney’s office, and next brought it to the courtroom.

While testifying, Dr. Queen identified a manila envelope and its contents, which was marked State’s Exhibit Number One, and stated that he made a microscopic and chemical examination of its contents, and he expressed the opinion that said contents contained marihuana and there was enough to make many cigarettes.

The evidence sufficiently identifies and traces the chain of custody of State’s Exhibit Number One and its contents to authorize its admission in evidence.

The admission of evidence showing the search of the automobile and the seizure of the bag found in the glove compartment is urged as error on the ground that both the search and seizure were illegal.

Officer Lackey of the city of San Juan was patroling U. S. 83 about 10:45 p. m., January 23, 1967, when he observed an automobile approaching him within a distance of 500 feet which failed to dim its headlights. The approaching car also failed to dim its headlights when Officer Lackey flicked the headlights several times on his patrol car. Officer Lackey was accompanied by Bob Parks, a friend. Upon the cars passing, Officer Lackey immediately turned and pursued while flashing a spot light on the car until it stopped, and left the headlights of his car on as he approached the other car from the driver’s side and Parks from the passenger side. Lackey saw two persons in the car, and noticed the passenger lean forward as if putting or taking something from under the seat. Lackey explained to the driver that he had stopped him for his failure to dim his lights, and asked for and examined his driver’s license. During this time, Lackey learned the driver’s name and that the passenger was his brother, who was eighteen years of age. While talking with the appellant he noticed what appeared to be a beer bottle sticking out from a brown paper bag on the floor board on the right hand side by the passenger. Lackey having seen the appellant fail to dim his headlights and on seeing an open beer bottle at the feet of the passenger who was a minor, who was seen leaning forward and bending down as they approached the car, he asked both to step out of the car and he searched the car for weapons. Lackey asked Parks to search the glove compartment, and Parks removed from it a brown paper sack which he handed to Lackey. Lackey testified that he examined and found a substance in the sack which appeared to be marihuana.

A ticket was issued and a complaint was filed against the appellant for his failure to dim the headlights on his car; and he was also charged with the possession of marihuana.

Proof was introduced of the prior conviction alleged for enhancement and the appellant was identified as the person so convicted.

Testifying in his own behalf, the appellant denied putting any marihuana in the glove compartment or that he knew any was in it; that when the officer was preparing to write him a ticket, the other man (Parks) got his brother out of the car, and then in a few minutes he came out of the car with the sack and said he found it in the glove compartment. He further testified that they had bought some beer.

The testimony of appellant’s brother corroborated his testimony.

In considering the stopping of the driver of an automobile for a traffic offense which resulted in the discovery of another offense, this court speaking through Judge Onion said in Taylor v. State, 421 S.W.2d 403:

“Once a bona fide stop or arrest has been made for a traffic offense, the police can make an additional arrest for any other offense unexpectedly discovered during the course of the investigation. If, while questioning a motorist regarding the operation of his vehicle, an officer sees evidence of a criminal violation in open view, or in some other manner acquires probable cause on a more serious charge, he may arrest for that offense and incident thereto conduct an additional search for physical evidence. See Goodwin v. United States, 121 U.S.App.D.C. 9, 347 F.2d 793; Busby v. United States, 9 Cir., 296 F.2d 328; Riggins v. United States, D.C., 255 F.Supp. 777; United States v. Barnett, D.C., 258 F.Supp. 455; United States v. Clark, D.C., 247 F.Supp. 958. Under these circumstances, neither the arrest nor the search is tied to the traffic charge, but rather to the violation later discovered. Brown v. United States, 125 U.S.App.D.C. 43, 365 F.2d 976; United States v. One 1963 Cadillac Hardtop, D.C., 224 F.Supp. 210, [212]. This is true even if no specific statement of fact of the second arrest is made. Brown v. United States, supra.”

The foregoing rule is applicable to the facts in the instant case, and it controls the disposition of appellant’s contention that the search and seizure were illegal.

However, it is observed that in rebuttal, the state called Bob Parks as a witness. He testified, without objection, that at Officer Lackey’s request he assisted him in the search of appellant’s car; that he found a brown paper sack in the glove compartment of the car which he handed to Lackey; and while testifying he identified State’s Exhibit Number One as the sack he took from the glove compartment of appellant’s car.

The appellant is not in position to complain of the search of his car on the ground that testimony showing the search and the results thereof was introduced without objection. 5 Tex.Jur.(2) 704, Sec. 446; Hughes v. State, 163 Tex.Cr.R. 224, 289 S.W.2d 768; Garza v. State, 172 Tex.Cr.R. 468, 358 S.W.2d 622; Love v. State, Tex.Cr.App., 373 S.W.2d 242.

The judgment is affirmed.


author: ONION, Judge.

text:
    Adolph O. BOENING, Appellant, v. The STATE of Texas, Appellee.
    No. 40769.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1967.
    Rehearing Denied Jan. 24, 1968.

      Lee P. Ward, Jr., Carl E. F. Dally, Houston (on appeal only), for appellant.
    Raymond L. Kneese, Dist. Atty., Richard Hoester, County Atty., Fredericksburg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Murder without Malice under the provisions of Article 802c, Vernon’s Ann.P.C., the punishment assessed by the jury, two (2) years confinement in the Texas Department of Corrections.

In his first ground of error appellant contends the evidence is insufficient to sustain the conviction because it does not show that Irma Chapa (the alleged decedent) was, in fact, one of the girls struck by appellant’s automobile; or how Irma Chapa came to her death; or that Irma Chapa’s death was caused by criminal means.

This ground of error requires that we review the evidence presented at some length. At the outset we conclude that the record amply supports the fact that the appellant drove the automobile in question on September 9, 1965, and that at such time he was intoxicated.

Julia Chapa testified that on September 9, 1965, she lived in the city of Fredericks-burg in the rear of the Henke’s store located at Travis and Llano Streets with her husband and four daughters, including nine year old Irma Chapa; that on said date about 6 p. in. she sent Irma to the Weier-shausen station located 4 or 5 blocks from their home for eggs, bread, Pet milk, newspaper, etc.; that Irma was accompanied by Janie Sanchez; that Irma never returned home; that the next time she saw Irma was at a funeral home in Bruni and that Irma was dead.

Walter Weiershausen, the proprietor of a service station and grocery store in Fredericksburg at 812 N. Llano Street, testified two Latin American girls, whose Ages were approximately eight or nine years old, and whose names he did not know, came to his store between 5 and 6 o’clock p. m. on September 9, 1965, and purchased a dozen eggs, a newspaper and some candy.

Gary Heimann, a 13 year old eighth grade school boy, testified that while riding his bicycle and waiting to cross the street at the Weiershausen station at a time between 5:30 and 6:00 p. m. on September 9, 1965, he saw a white Ford automobile run upon the curb and hit two little girls. He related that following the collision he saw one girl lying face down and the other lying in a driveway crying; that groceries were scattered “all over the place.”

Milton Weed, while driving home after work, observed through his rear-view mirror appellant’s car strike two girls on Llano Street. He estimated the time to be approximately “five, ten,” or “fifteen minutes until 6:00” p. m. on September 9, 1965.

Anthony Juarez, who lived in the same yard behind Henke’s store where the Chapas had their trailer house, testified he knew Irma Chapa and Janie Sanchez, Irma’s father, Osberto, and Osberto’s wife Julia. On his way home from work after 5 p. m. on September 9, 1965, Juarez saw Irma Chapa and Janie Sanchez on Llano Street eating candy. He warned them to “be careful for the cars.” He related that later he heard a noise “when it comes that car,” and then observed the little girls on the ground in positions similar to that described by Gary Heimann. Subsequently, in his interrogation Juarez did indicate some uncertainty about the first names of the little girls, but reiterated that their last names were Chapa and Sanchez and that the one that got killed was Chapa.

Jimmy Kuhlman, the City Marshall of Fredericksburg, testified that at 5:55 p.-m., September 9, 1965, he responded to an accident call and when he arrived in the 700 block of N. Llano, he observed a vehicle (a white 1960 Ford) in a yard, a broken pole and appellant beside his car in an intoxicated condition; that he saw one girl lying in the street but he could find no pulse in her wrist or neck; that another girl lying near a driveway was alive and was crying and screaming.

Marshall Kuhlman took a number of pictures at the scene, including one of the little girl lying in the street. These photographs were admitted into evidence before the jury, but they have not been included in the record, though are available to this Court. See Article 40.09, Sec. 15, Vernon’s Ann.C.C.P.

Dr. Edward Stein, Jr., a physician, was on duty at Keidel Memorial Hospital in Fredericksburg at approximately 6 p. m., September 9, 1965, when the body of a Latin American girl was brought in. He testified that she was dead on arrival; that he did not know her name but estimated her age at ten years; that from his examination she probably died from head and neck injuries, but without an autopsy he could not be sure; that shortly after the arrival of the body the appellant was brought to him for the purpose of having a blood sample extracted.

G. B. Worley, Justice of the Peace, Precinct No. 1 of Gillespie County, testified he made out a death certificate for one Irma Chapa on September 9, 1965. He was not permitted to testify to the information he had placed on said certificate, but did state that he “saw the body.” He subsequently related that he went to the scene of the accident that day, but the little girls had already been removed; that he did observe some eggs and groceries scattered about at the scene, a broken telephone post and a Ford car up in a man’s yard; that he went to the Schaetter’s Funeral Home in Fred-ericksburg and viewed and examined the dead body of “this” little girl “which was broken up pretty bad.”

Osberto Chapa, a resident of Bruni, Texas, testified he and his family resided right behind Mr. Henke’s store at Llano and Travis Streets in Fredericksburg, Texas, on September 9, 1965; that they were the only Chapa family in the neighborhood; that he knew Anthony Juarez; that his daughter Irma was killed in 1965; that he had three children left.

Oliver J. Schaetter of the Schaetter Funeral Home who also operated an ambulance service, received a call at approximately 6 p. m. on September 9, 1965. As a result Schaetter in one car and his father in another car went to the 700 block of North Llano Street. There he found two Latin American girls between seven and ten years of age who were injured. He took one girl to the Fredericksburg Hospital and Clinic and his father took the body of the other girl to another hospital. He testified that the body of a girl he had seen “at the scene” was brought to the funeral home by his father, and he embalmed it; that he had determined the body was that of the little Chapa girl. Schaetter related that “later that evening” he went to the Chapa home where he was shown photographs of the Chapa children including the “little girl.” He could not, however, recall the first name of the father.

It is observed that the trial court did not conclude that it was necessary to charge the jury on the law of circumstantial evidence nor do we find that appellant excepted or objected to the court’s charge, or requested such a charge.

It would appear from the record that Irma Chapa was in apparently good health when she left her home on September 9, 1965, and when we view the evidence, as we are required, in the light most favorable to the State, we conclude that the evidence is sufficient to sustain the conviction. Appellant’s first ground of error is overruled.

In his second ground of error the appellant urges that the State failed to read the indictment to the jury in accordance with Article 36.01, V.A.C.C.P., and that such failure constitutes reversible error.

Article 36.01(1), (former Article 642), supra, provides in part that after the jury is impaneled in any criminal action “[t]he indictment or information shall be read to the jury by the attorney prosecuting.” Failure to do so constitutes reversible error. Essary v. State, 53 Tex.Cr.R. 596, 111 S.W. 927; Theriot v. State, 89 Tex.Cr.R. 428, 231 S.W. 777; Johnson v. State, 118 Tex.Cr.R. 291, 42 S.W.2d 782.

After the jury was impaneled and sworn in the case at bar, the transcription of the court reporter’s notes reflects the following:

“The Court: The Defendant will arise and approach the bench. You will read the indictment.
(At which time, the indictment*.was read by the District Attorney.)
“The Court: To which the Defendant pleads, guilty or not guilty?
“The Defendant: Not guilty, Your Honor.
“The Court: You want to make a statement to the jury?
“Mr. Kneese: No, sir, I’m not going to make a statement.
“Mr. Ward: I have no statement.
"Mr. Kneese: Call Julia Chapa.
"Mr. Ward: We will envoke the Rule then, Your Honor.”

The foregoing clearly demonstrates a compliance with Article 36.01, supra.

Appellant, nevertheless, contends that the foregoing was an arraignment as required by Article 26.01, V.A.C.C.P., rather than a compliance with Article 36.01(1), supra.

Article 26.01, supra, does require a statutory arraignment in all felony cases and in all misdemeanor cases punishable by imprisonment. This statutory arraignment, not to be confused with taking an accused before a magistrate (Article 15.17, V.A. C.C.P.), was formerly required only in capital cases. See former Article 491, V.A.C.C.P. Such arraignment, not being a part of trial by jury, is for the purpose of reading the indictment to the accused, hearing his plea thereto and fixing his identity. Article 26.02, V.A.C.C.P.; Steen v. State, 92 Tex.Cr.R. 99, 242 S.W. 1047. The time for such arraignment is prescribed by Article 26.03, V.A.C.C.P.

The judgment entered in the case at bar clearly reflects that sometime before the parties announced ready for trial the appellant was “duly arraigned” and that after the impanelment of the jury the indictment was read to the jury.

If such recitations in the judgment were not correct, then we observe that no objections to the approval of the record were offered by the appellant prior to or at the hearing on the approval of the record conducted by the trial judge as authorized by Article 40.09, Section 7, V.A.C.C.P.

We further call attention to the provisions of Article 44.24, V.A.C.C.P. (Presumptions on Appeal) which requires this Court to presume, among other things, that the defendant was arraigned unless such matter was made an issue in the court below, or unless it affirmatively appears to the contrary from the record.

Appellant’s second ground of error is overruled.

In his third ground of error appellant complains that the trial court erred in permitting the witness Oliver Schaetter to testify that he had determined that the body he had at the funeral home was that of the little Chapa girl over objection that the same was hearsay. We cannot agree.

In Rodriguez v. State, Tex.Cr.App., 398 S.W.2d 124, when confronted with a similar situation, this Court said:

“The objection was never ruled upon by the court. However, the answer of the witness does not appear to be hearsay. The source of her knowledge was not shown. No motion was made to exclude it or to instruct the jury not to consider it. No error is presented.”

In the case at bar the source of the witness’ knowledge is not shown. It was therefore incumbent upon appellant to reinforce his objection by demonstrating to the court that such testimony was in fact hearsay. This he failed to do. If it be his contention that subsequent testimony did indicate that the witness’ earlier answer was hearsay, we note that at no time did he move to exclude the same or to have the jury instructed not to consider the same.

Appellant’s third ground of error is overruled.

We have carefully considered appellant’s other grounds of error urged in his brief filed in the trial court relating to the introduction of certain photographs and evidence of appellant’s blood test and find them to be without merit.

The judgment is affirmed.

      . At the examining trial this witness identified the dead girl as Irma Chapa. He was not questioned as to her identity at the trial on the merits, nor does it appear that the examining trial testimony was introduced before the jury.


author: MORRISON, Judge.

text:
    Charles Clifton TOMLINSON, Appellant, v. The STATE of Texas, Appellee.
    No. 40774.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1967.
    Rehearing Denied Jan. 17, 1968.
    Jones, Blakeslee, Minton, Burton & Fitzgerald, by Roy Q. Minton, Austin, for appellant.
    Martin D. Eichelberger, Dist. Atty., George H. Allen, Asst. Dist. Atty., Waco, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is passing as true a forged instrument. The punishment is two years.

It is axiomatic that when extraneous offenses are admitted, the jury must be told that they cannot consider them unless the State proves that the accused committed such collateral crimes. Lankford v. State, 93 Tex.Cr.R. 442, 248 S.W. 389. This being so, no extraneous offense should be offered unless the State is prepared to prove that the accused committed the same.

While testifying in his own behalf, appellant denied that he signed or passed the check set forth in the indictment, which was a cashier’s check dated 8/5/66, issued by Bellmead State Bank, Waco, Texas, in the sum of $225, and signed by Joe M. Beal, Cashier. It was endorsed on the back, “John L. Walters” and on the front upper left hand corner appears this notation: “SI Serv 41-27-38-453.”

On cross examination the prosecutor first asked for appellant’s selective service card and then said: “Mr. Tomlinson, I’m going to hand you what has been marked State’s Exhibit No. 3 and just ask you to look at the front and back of that. Now, if you will, will you take State’s Exhibit No. 1 and look at it and take State’s Exhibit No. 3 and compare the number on the top of State’s Exhibit No. 1 and the selective service number with the numbers on State’s Exhibit No. 3 on the back.” Appellant admitted that they were the same. This was followed by other questions which clearly pointed out to the jury the exact similarity of the two checks. In fact, photostatic copies of both checks are before this Court, and they are identical except that State’s Exhibit No. 3 was signed J. M. Biel instead of Joe M. Beal, and the selective service number appears on the back of No. 3 and on the front upper left hand corner of No. 1.

The prosecutor then asked, “Mr. Tomlin-son, isn’t it true that you passed this check right here, State Exhibit No. 3 in Dallas, Texas, to Trans-Texas Airways prior to August 10,1966?” Appellant’s objection was overruled, and appellant replied that he had not signed the name John L. Walters to the back of State’s Exhibit No. 3, and also denied that he had passed the same.

At the conclusion of the State’s case when they had made no effort to prove that appellant had in fact passed State’s Exhibit No. 3, the court sustained the appellant’s motion to instruct the jury not to consider State’s Exhibit No. 3, but declined to grant his motion for mistrial.

We need not pass upon the contention that the court erred in declining to grant the mistrial under the authority of Lucas v. State, Tex.Cr.App., 378 S.W.2d 340, advanced by appellant, or Carmean v. State, 163 Tex.Cr.R. 218, 290 S.W.2d 240, because there is more.

At the hearing on appellant’s amended motion for new trial it was proven that one Tony Ray Hughes had in October preceding the instant trial in January, been convicted upon his plea of guilty in the Criminal District Court of Dallas County of passing State’s Exhibit No. 3.

While it is true that the State did not know this fact at the time he asked the appellant the question set forth above, such might have been known if inquiry had been made. The prosecutor admitted at the hearing on the motion for new trial that at the time he asked appellant the question he had seen the endorsement on the back of State’s Exhibit No. 3, which shows that it was negotiated in Dallas in August 1966, long prior to this trial. He also admits that he made no inquiry of the officials in Dallas as to any prosecution growing out of the passage of such check. It is inescapable that the jury which convicted this appellant were given enough information to lead them to believe that appellant was the individual who passed State’s Exhibit No. 3 in Dallas County.

In view of the fact that the jury in this case at one juncture reported to the court that they were hopelessly deadlocked, and at another juncture asked the court “whose responsibility it is to recommend leniency or a-suspended sentence”, we are not prepared to hold that they were not influenced by the asking of this highly volatile question.

Under the holding of the Supreme Court of the United States in Burgett v. Texas (November 13, 1967), 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, it is clear that reversible error is reflected by this unfortunate sequence of events.

For the foregoing reasons, the judgment is reversed and the cause is remanded.


text:
    Hearne Edward SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 40869.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1968.

      L. L. Duckett, of Duckett & Duckett, El Campo, Wm. A. Cline, Jr., of Cline & Cline, Wharton, for appellant.
    R. A. Bassett, Dist. Atty., Richmond, Lloyd G. Rust, Jr., County Atty., Wharton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

Following the state’s withdrawal of its notice that it would seek the death penalty, and then giving notice in writing in open court that it would not seek the death penalty, the appellant entered a plea of guilty to the indictment charging him with murder with malice aforethought, waived a trial by jury, and his punishment was assessed by the court at sixty years.

The transcript of the evidence reveals that the appellant personally and by counsel in open court upon the trial on the merits in this case, consented to and waived in writing the appearance, confrontation and cross-examination of witnesses. The appellant further consented in writing to the introduction of evidence by affidavits, written statements of witnesses and other documentary evidence. He further stipulated in writing the following:

“Accordingly, having waived my Federal and State constitutional right against self-incrimination and after having been sworn, upon oath, I judicially confess to the following facts and agree and stipulate that these facts are true and correct and constitute the evidence in this case:
“My name is Hearne Edward Smith. On the 20th day of September; A.D. 1966, I had Nellie B. Allen in a pickup truck which belonged to her with me. Sometime around midnight on the above date, I shot and killed the said Nellie B. Allen with a shotgun. This happened in a cottonfield between Wharton and El Campo in Wharton County, Texas. I have listened to the Reading of the Indictment charging me with the offense of the Murder with Malice Aforethought of Nellie B. Allen and I hereby stipulate that the allegations contained in said Indictment are true and correct.”

At the time said stipulation was offered in evidence, the following occurred:

“State’s Counsel: I now offer in evidence the Stipulation which was signed by Hearne Edward Smith sworn to before Mr. Carlson, the District Clerk of this county. Mr. Smith, did you sign this statement ?
“The Defendant: Yes, sir.
“State’s Counsel: Did you swear to it before the District Clerk over there, Mr. Smith?
“The Defendant: Yes, sir.
“State’s Counsel: And this statement is true and correct?
“The Defendant: Yes, sir.
“State’s Counsel: Any objection?
“Appellant’s Counsel: No.
“State’s Counsel: Do you have any objection to me reading this to the Court and introducing it in evidence ?
“Appellant’s Counsel: No, sir.
“Appellant’s Counsel: No, sir.
“The Defendant: No, sir.”

The appellant, upon his return to Wharton from Wyoming, where he was apprehended, was taken by the sheriff before a magistrate who warned him of his rights as shown by the certificate of the magistrate introduced in evidence. The warning given the appellant by the magistrate is substantially the same as that included in the statement to the county attorney to whom he made a written statement; and who also warned him of his rights.

The written statement of the appellant given to the county attorney was a detailed statement of the facts showing the deliberate, inexcusable and unjustifiable killing by him of the deceased, and his whereabouts from that time until he was apprehended in Wyoming.

After the reading of said written statement to the court, the following occurred:

“State’s Counsel: I offer the statement in evidence.
“The Court: Is there any objection on the part of Counsel for defendant or the defendant?
“Appellant’s Counsel: No objection.
“The Defendant: No.
“The Court: Let the record show that Counsel for defendant nor the defendant have any objection to the introduction of the statement in evidence, and it will be admitted.”

The state called four witnesses whose testimony established the corpus delicti and sufficiently corroborates appellant’s written confession which was given to the county attorney.

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

The record shows that on January 11, 1967, two attorneys were appointed by the court to represent the appellant.

On February 1, 1967, the motion filed by appellant’s counsel for a medical examination of the appellant was heard and granted. Also, on that date, the appellant’s motion for discovery was heard and in part granted.

On March 15, 1967, the motions to quash the indictment and to suppress the written statements and purported confessions of the appellant were heard and overruled.

The trial was had on the merits on April 3, 1967.

Appellant’s counsel timely filed motion for new trial which was heard and overruled.

Briefs were timely filed by appellant’s counsel.

The trial according to the record appears to have been regular and in compliance with all the prerequisites required by law, relating to pleas of guilty before the court and waiver of trial by jury, and the appeal of the case.

The following grounds of error are urged for reversal by the appellant: That the arresting officer did not take him immediately before a magistrate in the county where he was arrested; that counsel was not made available to him until after indictment; that he was not allowed the right to bail; that his conviction rests solely on his uncorroborated confession; that there is a fatal variance between the complaint and the indictment; and that the court did not determine that the facts stated in the stipulation were true and correct.

In considering each of the grounds urged for reversal along with the appellant’s plea of guilty and his written statement made to the county attorney, the stipulations, and the testimony; it is concluded that no error is presented.

The judgment is affirmed.


author: NYE, Justice.

text:
    GRAHAM CONSTRUCTION COMPANY et al., Appellants, v. WALKER PROCESS EQUIPMENT, INC., Appellee.
    No. 278.
    Court of Civil Appeals of Texas. Corpus Christi.
    Aug. 31, 1967.

      Dayton G. Wiley, of Wiley & Thornton, San Antonio, for appellants.
    Denver E. Perkins, Gonzales, for appel-lee.
   OPINION

NYE, Justice.

This is a suit for debt allegedly due on a written contract, brought by appellee Walker Process Equipment, Inc. against Graham Construction Company, the general contractor and National Surety Company. Graham was the prime contractor employed by the City of Gonzales to build a sewer disposal plant. Graham furnished the City a payment and performance bond with National Surety Corporation as surety. The case was tried before the court without a jury which ended in a judgment for ap-pellee Walker against Graham and Surety Company.

Prior to entering into the contract with the City, Graham solicited bids from various subcontractors for certain technical and specialized equipment. The proposal in question was from Robert H. Pyle which consisted of four parts, the last two parts of his proposal being alternate bids on the same item. Pyle, an engineer and salesman, acted as agent for Walker in submitting the first three items and as agent for Robert H. Pyle, Inc. on the fourth. Graham accepted the proposals being items 1, 2 and 4. Item 1 was the sewage treatment equipment ; item 2 the chlorine contract aeration equipment; and item 4 the blower equipment. A companion suit representing a judgment on item 4 involves much of the same facts, but is a separate suit. The opinion, handed down this day by this Court, in that suit is entitled Graham Construction Company et al. v. Robert H. Pyle, Inc., Tex.Civ.App., 422 S.W.2d 485.

The City of Gonzales awarded the contract to build the sewer treatment plant to Graham, whereupon Graham issued its purchase order to subcontractors Walker for items 1 and 2 and to Robert H. Pyle, Inc. on item 4. Although the contract between Graham and the City provided for a liquidated penalty of $50.00 per day for delay in completion of the plant, it was undisputed that such clause was not invoked by the City against Graham. Upon completion of the contract, the City paid Graham the full amount of its contract obligation ($244,462.30). Graham, on the other hand, did not pay either Walker or Pyle, Inc., any amount; whereupon notices were sent to Graham and the Surety Company and Walker and Pyle filed separate suits against Graham for the moneys due them under their contracts. Answering these suits, Graham contends that the equipment did not comply with the engineering specifications ; that Graham was required to alter, rework, modify and repair the equipment to his damage; and that because of the delay in the delivery of the equipment he was required at additional expense to maintain his personnel on the jobsite while awaiting delivery of such equipment. Plaintiff Walker in answer to defendant’s plea of an offset contended that Graham waived any defects in the equipment, and waived any damages caused by any delay, by his acceptance of the equipment and by Graham’s failure to comply with the terms of the contract relative to modification and adjustment of the equipment without authority of the plaintiff. The trial court filed numerous findings of fact supporting its judgment against defendants. The defendants have perfected their appeal.

Appellant’s first point complains that the trial court erred in holding that substantial compliance of appellee’s contract obligations entitled appellee to recover the full contract price (2) that the trial court failed to make a requested finding on the damages to Graham by Walker’s failure to strictly perform and (7) that the trial court erred in placing the burden of proof on Graham to show its offsets.

A witness for the plaintiff testified without objection that it had made a proposal to Graham which had been accepted by Graham; that such contract was in writing in the form of a proposal, a written purchase order and a signed contract. All of these exhibits were admitted into evidence. Plaintiff’s witness further testified without objection that it had “fully performed its part of the agreement” * * and that “it furnished all of the equipment and materials and everything it was supposed to furnish to Mr. Graham under its contract”; that the amount due under the contract for items 1 and 2 were $62,-552.00 and $288.00 respectively and that Graham did not pay any portions of the indebtedness contracted and due under the contract to Walker; that Walker had made demand of Graham without any payment, necessitating the employment of an attorney to collect the debt.

Irrespective of such testimony it was shown in the record without dispute that there were some deviations from the exact contract terms which were remedied by appellant before the job was turned over to the City and accepted by them. The trial court found that appellee had substantially performed its obligation under the contract, both in respect to the material and equipment sold and delivered and to the deliveries being timely made.

The rule for determining compensation for damages in the case of substantial performance of a building contract rather than a full and complete performance is that the supplier is entitled to the full contract price less the reasonable cost of remedying the defects or omissions in such a way as to make the work perform to the contract terms. This deduction measures the damages allowed the contractor for the failure on the part of the supplier to fully comply with the specifications. Atkinson v. Jackson Bros., Tex.Com.App., 270 S.W. 848, 38 A.L.R. 1377 (Tex.Com.App.1925); Garland Grain Co. v. Bailey, 393 S.W.2d 945 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.); Treiber v. Schaefer, 416 S.W.2d 576 (Tex.Civ.App.—San Antonio 1967); Cooper Concrete Company v. Hendricks, 386 S.W.2d 221 (Tex.Civ.App.—Dallas 1965, no writ); Holt v. Purviance, 347 S.W.2d 321 (Tex.Civ.App.—Dallas 1961, writ ref’d n. r. e.); Hennemuth v. Weatherford’s Roofing Co., 278 S.W.2d 271 (Tex.Civ.App.—Waco 1955, writ ref’d n. r. e.); 10 Tex.Jur.2d, Building Contracts, §§ 21, 39 (1959). It is further generally true that the burden is on the supplier to furnish the evidence to properly measure the. deductions allowable to remedy the defects and omissions where there has been a substantial compliance of the contract. The trial court found that appellant suffered no damages because of any failure of Walker to fully comply with the contract. Even though there was no attempt on the part of the supplier Walker to prove the measure of damages necessary to remedy the defects and omissions such error is harmless and does not require a reversal of the judgment because of appellant’s waiver of the defects and omissions and because of the written contract which provided for a set procedure to be performed prior to making claim for defects or omissions under the contract. We discuss this later in the opinion.

Appellant’s sixth point complains that the trial court erred in rendering judgment on the contract because the plaintiff failed to timely perform its contract obligations. There was considerable testimony concerning the completion of the equipment in time to be delivered to Graham so that there would be no delay on the project which might cause $50.00 a day liquidated damages to Graham on account of his contract with the City. It is appellant’s contention that time was of the essence under this contract and although the contract allowed eighteen to twenty weeks for the goods to be shipped from the date they were ordered, they were in fact late, therefore, appellant contends that plaintiff breached his contract and is relegated to a recovery on the actual value of the benefit conferred upon the defendant under the doctrine of quantum meruit. The rule denying recovery under a contract and permitting recovery based on quantum meruit does not apply where there has been substantial or full performance of the contract. 10 Tex.Jur.2d, Building Contracts, § 44-45, pp. 46-50. See Atkinson v. Jackson Bros., supra.

The trial court found that “it was not necessary for Graham to attempt to rework, modify or repair in any substantial manner any equipment and material delivered to him by Walker the same was in substantial compliance with engineer’s specifications; the delivery of same was substantially in keeping with the schedule promised and agreed to by Walker and such delivery was timely made; and, if anything ordered by Graham from Walker was delivered late, Graham was not hampered and delayed in the performance of his overall contract and Graham was not damaged by any failure to comply; and Graham did not incur extra expense by having to maintain his forces on the job while awaiting delivery thereof.” These points one, two, six and seven are overruled.

Appellant’s third, fourth and fifth points contend that (3) the trial court erred holding that the defendant was barred by contract from asserting any offset by reason or delay or defects; that (4) the contract between Walker and Graham contained the terms of the printed form dated July 23, 1964; and that (5) the trial court erred in not finding what specifically was the contract. The original proposal dated July 23, 1964 contained five detailed sheets of paper describing the equipment and proposal made by Walker to Graham. After the contract had been awarded by the City, Graham notified Walker that Graham had accepted this proposal by sending Walker a signed purchase order. As a part of the original proposal a printed form was attached to the proposal setting forth certain terms, guarantees and backcharges. This form was duly signed by Walker’s agent and dated July 23,1964, the same date as the proposal. The proposal required acceptance within thirty days. This was timely done by Graham through the purchase order. However, on August 31, an identical copy of the printed form sheet setting forth the terms, guarantees and backcharges was signed by Graham. (The pertinent portions of the printed form, including signatures, appear below). It is appellants’ contention that since this portion of the printed form contract was not accepted (actually signed) within the thirty days specified in the proposal and not executed until after the thirty-day period had expired Graham is not bound by this portion of the agreement. This contention is without merit. A binding agreement may be collected from various writings between the parties so long as such different writings do not conflict in respect to the terms, parties and the like. 17 C.J.S. Contracts § 58, p. 727. The trial court found that there was consideration supporting the execution of this printed document and that it was a part of the entire agreement. It ís apparent from the original proposal as well as- from the printed form that the parties intended that this would form a part of the entire contract. The same was properly introduced into evidence. Although the contract became binding on August 11 there was nothing that would prevent the parties from elaborating further on the terms and conditions of their agreement by reducing the same to a printed form contract at a later date duly executed by both parties.

As part of the extensive findings of fact the trial court found relative to this printed form contract that was signed by Walker and Graham, that the contract provided that:

“ ‘The Seller guarantees the material of its manufacture to be first-class, made in a workmanlike manner, and free from inherent defects in material and workmanship, and that when properly operated and used, is suitable for the purposes represented by it. Any part or parts of machinery manufactured by Seller, proving defective on account of material or workmanship, within a period of one year from date of acceptance, will be furnished free, on receipt of satisfactory proof of such defect or defects. Seller will assume no responsibility or expense for repairs made on this apparatus, or on any machinery or material furnished by it when done outside of its factory, without its written authority. Seller shall have the option of requiring the return of the defective material, transportation prepaid, to establish a claim.’ ”

The court further found:

“No satisfactory proof of any defect or defects was made by Graham to Walker; the repairs, if any, made by Graham were made outside of Walker’s factory and without Walker’s written authority or written authority from anyone connected with Walker; and Walker was not accorded the opportunity to exercise its option of requiring the return of any allegedly defective material to establish a claim.
“Further, no written authority in the form of a purchase order or in any other form was issued from Walker from its home office in advance of doing any work on any modification, servicing or adjustment of any item of equipment, there was no proof submitted as provided in the contract; no authority was issued for such modification, servicing or adjustment; no price was agreed upon; and no authority given as required in the contract for back charges for modification servicing and adjustment of any of the equipment.”

If the delay in the receipt of the equipment was material, the appellant knew of it before he accepted the equipment. The contract between the parties, provided that upon Graham’s acceptance of the equipment this would constitute a release or waiver for any damage caused by delay-in delivery.

Concerning any alleged defects in the equipment, Graham did not comply with the terms of the contract prior to his voluntary reworking of them. The repairs were made by Graham outside of Walker’s factory and without Walker’s written authority. Walker was not given an opportunity to exercise its right and option of requiring the return of the defective material to their factory for repairs. The contract provision called for certain procedures to be followed in case of defects in the materials. No attempt whatsoever was made by Graham to comply with these procedures. Not even a telephone call from Gonzales to Walker’s agent in Austin was made by Graham or his employees. Where the parties were competent to contract, and it appears that they have dealt with each other voluntarily and at arms length, and where there is no evidence of fraud or overreaching by the parties, the courts will not reconstruct a contract where it speaks for itself. Universal C.I.T. Credit Corp. v. Daniel, 243 S.W. 2d 154 (Tex.Sup.1951). The provisions of the contract are clear and unambiguous, therefore, there is nothing for the court to construe. Appellants’ points are overruled.

Appellants’ eighth point is that the trial court erred in holding that the May 5, 1965 notice given by Walker to National Surety Corporation covered material delivered before January 1, 1965. The trial court found that the details and anchorage were shipped on October 21, 1964; that the entire balance of the contract was shipped in January of 1965. It is undisputed that Walker’s notice under Article 5160 was given on May 5, 1965. The notice requirement under Article 5160 requires that “claimant shall * * * within ninety days (90) days after the 10th day of the month next following each month in which the labor was done * * *, or material was delivered * * * (give) * * * written notice (s) * * (parenthesis supplied) Generally, bills are prepared around the first of the month next following the one in which labor was done and are due on the tenth day of that month. Accordingly, the Legislature gave a claimant ninety days from the usual due date in which to prove his claim. On all of the equipment and material delivered in January of 1965 the same would be covered by the May 5, 1965 notice. The time began to run from February 10, 1965 and May 5 is well within the ninety days from that day. However, on the other hand, material delivered in December would start the time running on January 10, 1965 and accordingly the time for giving notice to cover material delivered in December would be April 8, 1965; therefore, the May 5 notice as to material delivered prior to January 1, 1965 was tardy. It has been held by our courts that a- verified itemized statement of materials furnished should be filed within ninety days after such material has been delivered even though such materials are delivered in installments. Therefore, under the statute the surety should not be held liable except for the material delivered within the ninety days before the filing of the itemized account. See National Surety Co. v. United Brick & Tile Co., 71 S.W.2d 937 (Tex.Civ.App.—Amarillo, 1934); Aetna Casualty & Surety Co. v. Hawn Lumber Co., 128 Tex. 296, 97 S.W.2d 460 (1936).

A re-examination of the entire record shows that the “details” which were shop drawings did not have any monetary value. The “anchorage” consisting of bolts weighing approximately 300 pounds were valued at $1.00 a pound. These were the only items furnished prior to January 1, 1965. The trial court in its judgment ordered, adjudged and decreed that plaintiff Walker do have and recover from defendant Gillis Graham d/b/a Graham Construction Company and National Surety Corporation, jointly and severally, the sum of $62,800.00 together with interest thereon from date of rendition of the judgment until paid at the rate of 6%. We find from the record, and it is undisputed that the materials furnished prior to January 1, 1965 had a value of $300.00. This amount would not be covered under Article 5160, Vernon’s Ann., Tex.Rev.Civ.Stat, so as to make the surety company liable on the contractor’s bond. That part of the judgment against National Surety Corporation which included $300.00 of the subject material furnished prior to January 1, 1965 is hereby reformed so as to reduce the liability of National Surety Corporation by the sum of $300.00. In all other respects the judgment is affirmed.

Appellee Walker by a cross-point contends that it is entitled to attorney fees against National Surety Corporation on Graham’s payment bond. There was no contract between the parties that would permit such a recovery against the Surety Company. The Supreme Court of Texas has held that a subcontractor who brings suit against the general contractor and his surety on the contractor’s payment bond for material and labor furnished, is not entitled to recover attorney fees under the McGreg- or Act, (article 5160) absent a statute permitting same, or a contract between the parties. Appellee’s counterpoint is overruled. New Amsterdam Casualty Co. v. Texas Industries, Inc., 414 S.W.2d 914 (Tex.Sup.1967).

The judgment against Gillis Graham, doing business as Graham Construction Company is affirmed. The judgment against National Surety Corporation is reformed and as reformed is affirmed.

Affirmed in part, reformed and affirmed in part.

OPINION ON MOTION FOR REHEARING

Appellants as a part of their motion for rehearing request this Court to make a finding of fact and a conclusion of law on whether or not time was of the essence of the contract between the parties. Such request is without merit in view of the findings of the trial court and those already expressed by this Court in its opinion. The trial court found that the appellant suffered no damages occasioned by the delay. It was undisputed the City did not charge appellant with any damage, but paid the appellant the full contract price. Where there has been a substantial performance of the building contract and where the parties have contracted and dealt with each other as under the facts of this case, such request is not material to the determination of this appeal.

Appellants' motion for rehearing is overruled.

      . “WALKER PROCESS EQUIPMENT INC.
      Aurora, Illinois
      TERMS:
      Total selling price $62,840.00 exclusive sales tax, f.o.b. shipping point via truck to jobsite.
      90% Net thirty (30) days from date of shipment.
      10% after acceptance by owner
      * * ⅜ ⅜ *
      The Seller shall not be responsible for delays caused by fires, strikes, accidents or other circumstances beyond the control of the Seller, and shall in no case be held liable for any special indirect or consequential damages whatsoever. Acceptance of the machinery or parts covered by this contract from the carrier shall constitute a release or waiver of any responsibility on the part of the Seller for any damage in transit or loss on account of delay in delivery, and receipt by the Buyer shall constitute acceptance of delivery.
      * * * * *
      There are no warranties expressed or implied except such express warranties, if any, as are definitely set forth herein. No obligation other than those herein set forth shall be binding upon the Seller. All previous agreements, either oral or written, referring to the machinery which is the subject matter hereof, are hereby cancelled. The provisions in the specifications attached hereto are descriptive and not intended as warranties.
      ‡ ⅜ ‡ ⅜ ⅜
      * * * Any part or parts of machinery manufactured by Seller, proving defective on account of material or workmanship, within a period of one year from date of acceptance, will be furnished free, on receipt of satisfactory proof of such defect or defects. Seller will assume no responsibility or expense for repairs made on this apparatus, or on any machinery or material furnished by it when done outside of its factory, without its written authority,. Seller shall have the option of requiring the return of the defective material, transportation prepaid, to establish a claim.
      BACKCHARGES
      Walker Process Equipment Inc. will not accept any charge for modification, servicing, adjustment or for any other item without written authority in the form of a purchase order issued from the home office at Aurora, Illinois in advance of doing the work. This authority will only be given when satisfactory proof is submitted and the authority will only then be issued providing the price is agreed upon and the authority is given as outlined above.
      ANY BACKCHARGE SUBMITTED CONTRARY TO THIS AGREEMENT WILL BE REJECTED IN TOTAL WITHOUT CONSIDERATION
      The Buyer represents that the name installation and erection of said ma-of its bonding company covering the chinery is

      . See note 1 on pages 481 and 482.


text:
    GRAHAM CONSTRUCTION COMPANY et al., Appellants, v. ROBERT H. PYLE, INC., Appellee.
    No. 279.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 30, 1967.
    Rehearing Denied Dec. 28, 1967.

      Dayton G. Wiley, of Wiley & Thornton, San Antonio, for appellants.
    Denver E. Perkins, Gonzales, for appel-lee Robert H. Pyle, Inc.
    A. Philip Wilson, of Brady, Drake & Wilson, Dallas, for appellee Dresser Industries, Inc.
   OPINION ON MOTION FOR REHEARING

NYE, Justice.

After careful consideration of appellants’ motion for rehearing, we withdraw our opinion delivered in this cause and substitute therefor the following opinion.

This is a suit for debt due on a written contract brought by appellee Robert H. Pyle, Inc. against Graham Construction Company, the general contractor and National Surety Corporation. This case and Cause Number 278, Graham Construction Company et al. v. Walker Process Equipment, Inc. were consolidated for the purposes of trial before the court sitting without a jury. However, each suit was the subject of a separate judgment. The case ended in a judgment for Pyle against Graham and the surety company. Reference to our opinion handed down in the above-cited case is made for reference to more detailed facts and citation of cases.1

Graham was a prime contractor employed by the City of Gonzales to build a sewer disposal plant. Graham solicited bids from various subcontractors for certain for certain technical and specialized equipment including blowers from appellee Robert H. Pyle, Inc. Robert H. Pyle individually acted as agent for various manufacturers including his own company, the appellee herein. Pyle, Inc. in turn subcontracted with Dresser Industries, Inc. for this certain blower equipment which was manufactured by Roots Conerville, a subsidiary of Dresser Industries. Graham accepted the proposal from appellee for the blower equipment which was nominated as Item 4 in the proposal by Robert H. Pyle to Graham.

Upon completion of the contract the City paid Graham the full amount of its contract obligation ($244,462.30). Graham, on the other hand, did not pay appellee Pyle, Inc. any amount due on its contract ($23,821.00). Whereupon, notices under the McGregor Act were sent to Graham and National Surety Corporation, the surety company which wrote the payment and performance bond for Graham. Pyle, Inc. filed suit against Graham for the moneys due the company under its contract. Answering this suit Graham contended that the equipment did not comply with the engineering specifications; that Graham was forced, compelled and required to spend the sum of $5,113.28 in additional labor, materials and supplies in reworking, modifying and repairing the equipment supplied by appel-lee; and that because of the delay in the delivery of the equipment, Graham was required at additional expense to maintain his personnel on the jobsite while awaiting delivery of such equipment. Upon trial, judgment was rendered for plaintiff, and against H. Gillis Graham, doing business as Graham Construction Company and his surety, National Surety Corporation, less an offset of $1600.00 for defective materials and delay in shipment. Dresser Industries, Inc. had intervened, and Robert H. Pyle, Inc. confessed judgment to them. An interlocutory judgment was granted in favor of Dresser Industries, Inc., all of which was incorporated in the final judgment herein. Graham has perfected its appeal raising four points of error. (See detailed discussions of some of same points of error in our previous opinion Graham Construction Company et al. v. Walker, Process Equipment Inc., supra).

Appellant’s first two points are that the trial court erred in rendering judgment on the contract because Pyle failed to timely perform its contract obligation and in placing the burden of proof on Graham to show the claimed setoff.

Primarily Graham’s asserted affirmative defense of a setoff against the contract price due appellee, was based upon work done on brackets supporting a discharge snubber which was a part of the equipment furnished by Pyle. Graham additionally claimed $100.00 a day delay for 38 days. The trial court allowed $1600.00 damages for defective equipment and delay.

The rule of law generally is that where there has been substantial performance of the contract, the contractor is entitled to recover the full contract price less the reasonable cost of remedying the defects and omissions so as to make the structure conform to the contract. The burden where there has been a substantial performance is on the contractor to furnish the evidence to properly measure the deductions allowable that would be necessary to remedy the defects and omissions. Here the plaintiff (excepting only a year maintenance agreement which plaintiff agreed to fulfill and which is not in dispute between the parties) appellee plead performance of the contract. Robert H. Pyle testified without objection concerning Item 4 that it had performed all the agreements under its contract with Mr. Graham. No objection was made to this proof. The appellant who had defended this suit raised the defense of setoff and proceeded with evidence to prove that there had been a delay in performance and defective material and equipment furnished. Some of the testimony was in dispute. No objection was made by either party on the theory under which the case was tried.

The trial court found that the order was received by Pyle in August of 1964 and that the principle parts of the equipment were shipped on February 18, 1965. The court found further that “certain of the materials and equipment furnished by Pyle were defective in minor respects. The repairs made by Graham were made outside of Pyle’s and Dresser’s factory and without Pyle’s or Dresser’s written authority or written authority from anyone connected with Pyle or Dresser, and Pyle and Dresser were not accorded the opportunity to exercise any option of requiring the return of any allegedly defective material to establish a claim.” The court further found that “except for certain minor adjustments, it was not necessary for Graham to attempt to rework, modify or repair in any substantial manner any equipment and material delivered to him by Pyle, and the same was in substantial compliance with engineer’s specifications; except as above stated, and the delivery of same was substantially in keeping with the schedule promised and agreed to by Pyle; and, if anything ordered by Graham from Pyle was delivered late, Graham was not hampered and delayed in the performance of his overall contract to any extent that is not compensated for-in the judgment; and Graham did not incur extra expense over and above the amount included in the offset allowed by having to maintain his forces on the job while awaiting delivery thereof.” It was undisputed that Graham accepted the equipment from plaintiff without any limitation. The court found that there were some expenses required in reworking, modifying and repairing the equipment and that the amount Graham was damaged was $1600.00 for these adjustments and the delay. This amount was allowed as an offset against the amount due under the contract. The evidence supports the trial court’s findings. The record shows that the appellant Graham plead the offset and proceeded throughout the trial to assume the burden of offering proof concerning the damages because of defective material and delay. No' issue was raised in the trial court below with respect to this procedure either by way of pleading or objections. We hold that the same is deemed to be waived. If there was error it was harmless. Rule 434, Texas Rules of Civil Procedure. Appellants’ points are overruled.

Appellants’ third point is that the trial court erred in holding that the May 5, 1965 notice given by Robert H. Pyle, Inc. to National Surety Corporation covered material delivered before January 1, 1965. The only evidence of anything furnished prior to January 1, 1965 were the shop drawings which had no monetary value. There was no evidence of anything else delivered prior to this date and no contention is made that the notices given were deficient in any other particulars. Appellants’ point is overruled.

Appellants’ last point is that the trial court failed to make additional specific findings of fact on how much they were damaged because of materials delivered that were defective. We fail to conceive how appellant has suffered harm by the trial court’s failure to make this specific finding requested. It is not necessary that a trial court make specific findings on every controverted fact but only on ultimate and controlling issues. Golden State Mutual Life Insurance Co. v. Adams, 340 S.W.2d 77 (Tex.Civ.App.—Fort Worth 1960). The appellant has the burden to show that the trial court’s failure to make the requested findings was reversible error. Ryan v. Winegardner, 348 S.W.2d 284 (Tex.Civ.App.—Eastland 1961). We hold that the trial court’s findings of fact and conclusions of law are substantially the same as the ones requested and that the trial court’s findings support the judgment. Morton v. Hill, 355 S.W.2d 269 (Tex.Civ.App.—Eastland 1962, ref’d, n. r. e.); Janes v. Morton, 385 S.W.2d 702 (Tex.Civ.App.—Amarillo, 1964, ref’d n. r. e.). There being no prejudicial error or harm shown by the appellant for the trial court’s failure to file additional findings the reversal of the judgment is not warranted. Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117 (1944). Appellants’ point is overruled.

Appellee Pyle by a counterpoint contends that it is entitled to attorney’s fees against National Surety Corporation on Graham’s payment bond. There was no contract between the parties that would permit such a recovery against the surety company. The Supreme Court of Texas has recently held that a subcontractor who brings suit against the general contractor and his surety on the contractor’s payment bond for material and labor furnished, is not entitled to recover attorney’s fees under the McGregor Act, Article 5160, absent a statute permitting same, or a contract between the parties. Appellee’s counterpoint is overruled. New Amsterdam Casualty Co. v. Texas Industries, Inc., 414 S.W.2d 914 (Tex.Sup.1967).

Judgment of the trial court is affirmed.

      . Graham Construction Company et al. v. Walker Process Equipment, Inc., 422 S.W.2d 478.

      . Graham Construction Company et al. v. Walker Process Equipment, Inc., 422 S.W.2d 478.


author: FANNING, Justice.

text:
    C. E. HOWARD et al., Appellants, v. BOLIN WAREHOUSES, INC., Appellee.
    No. 7864.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 5, 1967.
    Rehearing Denied Dee. 27, 1967.

      Harlan Harper, Jr., Fanning & Harper, Dallas (on appeal only), for appellants.
    Lee Sellers, Prothro & Sellers, Wichita Falls, for appellee.
   FANNING, Justice.

Bolin Warehouses, Inc., as plaintiff, sued C. E. Howard and other members of his family, including his wife, daughter and son-in-law, as defendants, for the recovery of indebtedness owed Bolin by Howard by reason of advances to Howard by Bolin for the purchase of grain and cottonseed during the 1964 crop year in the vicinity of Leonard, Texas, where Howard was in the grain business. Bolin Warehouses, Inc., appellee, was also engaged in the grain business at Wichita Falls and other cities and the financing by Bolin of Howard and the consequential obligations of Howard to Bolin arose pursuant to a written letter agreement between the parties dated July 10, 1964.

The joinder of the wife, daughter and son-in-law of Howard in the action was based upon allegations that certain conveyances of realty and/or gifts of personalty made to such parties by Howard had been in fraud of creditors and, accordingly, should be set aside.

Trial to a jury resulted in a verdict favorable to plaintiff and judgment was rendered in favor of plaintiff and against the defendant, C. E. Howard, in the amount of $64,039.50. In addition, such judgment set aside the conveyances and/or gifts to the other parties defendant and plaintiff was granted a writ of possession for such properties.

Defendants’ First Amended Motion for New Trial was overruled and defendants-appellants have appealed.

Appellants, by their 8th, 9th, 10th, 11th, and 15th points, contend to the effect that there was no evidence and insufficient evidence to support the verdict of the jury, that such verdict was contrary to the great weight and preponderance of the evidence, etc., that the trial court erred in not directing a verdict for defendants upon the ground that plaintiff had failed to prove either of its causes of action, and that the court erred in entering judgment upon the jury’s answer to special issue No. 1 in arriving at the figure therein because such amount or figure was incomprehensible in the face of the pleadings, evidence and other findings. Appellants, by their 14th point, contend that the trial court erred in failing to deduct the sum found by the jury under special issues 13 and 14 from the sum found by the jury in response to special issue 1. Appellants, by their 16th point, contend to the effect that the trial court erred in failing to give effect to the jury’s answer to issue 8 to the effect that the contract in suit was usurious.

The jury in response to special issues submitted found to the effect: (1) The amount of money due and owing to Bolin by C. E. Howard, after the allowance of credit for all payments made by him and sales of cottonseed and corn made by Bolin was $64,039.50; (2), (3), (4), (5), (6) & (7), that the listed conveyances and gifts in question from C. E. Howard to his daughter and son-in-law, defendants, were made with the intent to defraud the creditors of C. E. Howard, and that at the times of said conveyances and gifts, defendant C. E. Howard was not possessed of property, within this state and subject to execution, sufficient to pay his then existing debts; (8) that the agreement between defendant C. E. Howard and plaintiff Bolin provided, either directly or indirectly, for interest in excess of 10% per annum; (9) that J. D. Farrier did not remove any grain belonging to defendant C. E. Howard from a Trenton warehouse without the knowledge and consent of defendant C. E. Howard, in December, 1964, and January, 1965; issues 10, 11 and 12 were not answered by reason of the jury’s negative answer to issue 9; (13) that the fair market values in Fannin County, Texas, of cottonseed removed by plaintiff Bolin to Wichita Falls, Texas, at the time of removal was $8,086.36, and (14) that such value of ear corn removed by Bolin to Wichita Falls, Texas, at the time of removal was $4,208.33.

The letter contract of July 10, 1964, between plaintiff Bolin and defendant C. E. Howard, is found below. Under this contract Bolin was to advance to Howard money for the purchase of grain. Such money was to be repaid when the grain was sold, together with 6% interest, and the plaintiff was to receive as its share of the profit therefrom 1(⅛ per hundredweight or bushel.

It was undisputed that pursuant to such agreement plaintiff advanced $105,105.53 to defendant C. E. Howard. Defendant C. E. Howard admitted that only $52,286.84 thereof was repaid. It was also undisputed in the evidence that none of the grain supposedly purchased by defendant C. E. Howard was on hand in the possession of Howard at the time of the trial.

Plaintiff’s exhibit 2 was a compilation made by plaintiff’s office manager accountant reflecting the advances to the defendant, with interest charged therefor from the date of such advances and crediting all repayments made by Howard. According to this statement of the account, which was not challenged to much extent by Howard, and which was not demonstrated to be incorrect by the defendant C. E. Howard, the sum of $68,448.69 was owed the plaintiff by the defendant as of the date of trial, after allowing all proper payments and legal offsets. This testimony would have supported a jury verdict in the amount of $68,448.69. The jury in response to issue 1 found the amount due and owing to Bolin by C. E. Howard, (after allowing credit for all payments made by Howard and credit for sales of cottonseed and corn made by Bolin) was $64,039.50. We find that there was ample evidence of probative force to support the jury’s finding to special issue No. 1, that the evidence to support such finding was sufficient and that the jury’s finding to special issue No. 1 was not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. We also hold that there was ample evidence to support the jury’s findings to special issues 2, 3, 4, 5, 6 and 7, that the same was sufficient, and that such findings were not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Appellants’ points 8, 9, 10, 11 and 15 are overruled.

We also hold that the trial court did not err in failing to deduct the sums found by the jury in response to special issues 13 and 14 from the amount of the judgment rendered by the trial court. Appellants in their brief do not adequately set out the facts with respect to the complaints they make of the answers of the jury to special issues 13 and 14 as raised by their 14th point of error. However, the facts are briefly as follows: Plaintiff’s witness, Hamilton, testified that a quantity of cottonseed and corn was moved from defendant’s place of business in Leonard, Texas, to plaintiff’s warehouse in Wichita Falls. The weight tickets of these loads of cottonseed were introduced and the dates of delivery shown. Hamilton testified that a portion of the cottonseed was sold (credit was given on C. E. Howard’s account for the cottonseed sold) and the balance which was not sold was still on hand in plaintiff’s warehouse. No weight tickets were available for the three loads of corn so moved but a portion thereof had been sold (and C. E. Howard was given credit on his account for the corn sold) and the balance of such corn not sold was on hand in plaintiff’s warehouse. It was undisputed that appellant C. E. Howard was given credit on his account for the cottonseed and corn sold by plaintiff. Defendant C. E. Howard also testified that the said above referred to cottonseed and corn had been removed from his premises to Bolin’s warehouse in Wichita Falls with his permission, that he, Howard, furnished not only the equipment but the labor to load the cottonseed and corn for delivery to Wichita Falls but that he had not been to Wichita Falls since the moving to check upon such commodities and had never made inquiry as to the condition of such commodities or of their disposition. C. E. Howard further testified that the commodities had been removed because of a belief of plaintiff’s employee that they could be better sold from Wichita Falls.

Nowhere did defendant C. E. Howard ever testify or claim that these removed commodities were ever purchased by the plaintiff from him or that there was any agreement of any kind to pay or reimburse him therefor. It was agreed by all parties that such removed commodities were removed because the cottonseed in particular was deteriorating, having gotten wet from being stored in the open by Howard under adverse weather conditions, and if not removed, would have shortly been completely worthless.

While the jury in response to issues 13 and 14 found the market values of the cottonseed and corn at the time of removal to Wichita Falls were $8,086.36 and $4,-208.33, respectively, the court made no further inquiry with respect to such matters, no issue was submitted as to whether such cottonseed and corn was sold to plaintiff by defendant C. E. Howard, no issue was submitted as to whether there was any agreement to pay defendant C. E. Howard the reasonable value or any other price for such cottonseed and corn, no issue was submitted as to whether such cottonseed and corn was converted by plaintiff, and if so, its value as of the date of conversion. Issues 13 and 14 were only evidentiary issues and were not ultimate issues and could not alone form the basis of any judgment for the defendant C. E. Howard. Also issues 13 and 14 do not take into consideration the sales of a portion of the removed cottonseed and corn for which defendant C. E. Howard was given full credit, and such issues did not take into consideration the undisputed testimony that a portion of such cottonseed in a deteriorated state (by reason of being exposed to wet weather while stored in the open by Howard at Leonard, Texas) was removed to Bolin’s Warehouse in Wichita Falls along with a small amount of corn with the help and consent of defendant C. E. Howard, and that such deteriorated cottonseed and corn were still on hand and presumably of some value, and still belonged to C. E. Howard, there being no evidence or finding that Bolin purchased or converted such commodities from C. E. Howard. Lacking both evidence and favorable findings on ultimate issues C. E. Howard was not entitled to any judgment against Bolin on the jury’s answers to evidentiary issues 13 and 14. Appellant’s 14th point is therefore overruled.

Appellants by their 6th, 7th, 12th, 13th and 15th points complain of the overruling by the trial court of various objections and exceptions to the court’s charge. Defendants’ objections and exceptions to the court’s charge are shown in the transcript and bear a file mark after the date of the overruling of defendant’s first amended motion for new trial. There is no written endorsement by the trial court attached to or made a part of defendants’ objections and exceptions to the court charge, which shows that such objections were timely presented to and ruled upon by the trial judge, as required by Rule 272, Texas Rules of Civil Procedure. Since there was no such endorsement as required by Rule 272, Tex.R.Civ.P., appearing or attached to defendants’ objections and exceptions to the court’s charge, such alleged points of error do not present any matters properly preserved for review by this court. See the following authorities: Rule 272, Tex.R.Civ.P.; Uehlinger v. State, Tex.Civ.App., 387 S.W.2d 427, wr. ref., n. r. e. (1965); Grabes v. Reinhard Bohle Machine Tools, Inc., Tex.Civ.App., 381 S.W.2d 395, wr. ref., n. r. e. (1964). Furthermore it also appears that some of the complaints against the charge were not set forth in defendants’ first amended motion for new trial and under Rules 320 and 374, Tex.R.Civ.P., such matters can not now be considered and must be deemed as waived. However, lacking the trial court’s endorsement required by Rule 272, Tex.R.Civ.P., we can not consider appellants’ points 6, 7, 12, 13 and 15. However, we have examined said points 6, 7, 12, 13 and 15 and find them to be without merit and as not presenting error under the record in this case. Appellants’ points 6, 7, 12, 13 and 15 are overruled.

Special issue 8 inquiring of the jury as to whether the written agreement in question between the parties provided “either directly or indirectly” for interest in excess of 10% per annum, was answered in the affirmative by the jury. However, no other issue in connection with any question as to usury was submitted to the jury. It is obvious that issue 8 was evi-dentiary only and was not an ultimate issue. Whether or not the contract provided for usurious interest might be an element of a defense of usury but in order to found a judgment on usury, it would have been necessary to go further and determine whether interest in excess of the lawful rate was charged and/or received by the plaintiff from the defendant, and if so, the amount thereof. Also the written agreement on its face does not disclose usury and the intent of the parties to the contract would be of controlling importance. Without the full and necessary findings on the above matters, no judgment could have been rendered on the defense of usury and the trial court properly ignored the jury’s finding to special issue No. 8 in rendering its judgment. Furthermore, we think the record shows that there was no evidence of probative force to support any judgment for plaintiff on the alleged defense of usury in any amount. Appellants’ 16th point is deemed to be without merit and is overruled.

Appellants by their 1st, 2nd, 3rd, 4th and 5th points contend to the effect that the trial court erred in refusing to admit and consider the “second affidavit” of S. D. Hansley and the affidavits of Lebon King and Arvil E. Wilson, at the hearing upon defendant’s first amended motion for new trial, that the trial court erred in refusing to consider the affidavit and testimony of juror Walker at such above referred to hearing, and that the trial court erred in refusing to grant defendant’s motion for continuance of the hearing of defendant’s first amended motion for new trial.

Defendant’s original motion for new trial was filed on March 27, 1967, which was prior to the rendition, signing and entry of judgment on April 4, 1967. Under Rule 306c, Tex.R.Civ.P., this original motion for new trial must be considered as filed as of April 4, 1967, immediately after the entry, signing and rendition of judgment on April 4, 1967. Rule 329b, Tex.R.Civ.P., makes definite and certain the defendants’ rights and duties with respect to an amended motion for new trial. Under said Rule 329b, the amended motion for new trial must be filed within 20 days of the filing of the original motion and not more than one amended motion for new trial may be filed. Also the time period so specified can not be enlarged. A. F. Jones & Sons v. Republic Supply Co., 151 Tex. 90, 246 S.W.2d 853 (1952).

Only one amended motion for new trial was filed by the defendants within said above referred to 20 day period, and attached to it was the first affidavit of S. D. Hansley. The affidavits of Lebon King, Arvil Wilson and Harold Walker were filed after the 20 day period above referred to and in fact were originally attached to defendants’ so called second amended motion for new trial, filed after the expiration of the 20 day period above referred to. It follows that there was no proper motion for new trial before the trial court with respect to the affidavits of the witnesses King, Wilson and the juror Walker and neither their testimony nor affidavits could properly be considered by the trial court, and the trial court correctly refused to consider same. Rule 320, Tex.R.Civ.P.

This leaves only the testimony of the witness S. D. Hansley adduced on the hearing upon defendants’ first amended motion for new trial. The credibility of the witness Hansley was for the trial judge and he evidently did not believe Hansley’s new testimony contradicting to some extent his testimony adduced upon the trial upon the merits. This was a matter clearly within the province of the trial court. We find no abuse of discretion on the part of the trial court in not granting a new trial on the basis of the new and contradicting testimony of Hansley.

We also hold the trial court did not err in refusing to admit and consider the late filed affidavit and testimony of juror Walker at the hearing upon defendants’ motion for new trial. Zamora et al. v. Zamora, Tex.Civ.App., 260 S.W.2d 604, writ refused (1953). Also in this connection see Sproles Motor Freight Lines v. Long, 140 Tex. 494, 168 S.W.2d 642, which would prevent the sort of testimony sought to be offered by the juror Walker, wherein it was stated by the Supreme Court in part as follows:

“The trial court allowed each juror to testify that the matters of misconduct above detailed did not affect his verdict. This character of testimony is utterly without force or effect one way or the other in passing on the question of jury misconduct. (Citing cases) It is never permissible to allow a juror to either preserve or destroy his verdict by testifying to the mental processes by which he reached the same. (Citing cases).” (Emphasis supplied)

We also hold that under the record in this case the trial court did not err in refusing to grant defendants’ motion for continuance of the hearing of defendants’ first amended motion for new trial and that such contention is without merit.

Appellants’ 1st, 2nd, 3rd, 4th and 5th points are overruled.

The judgment of the trial court is affirmed.

      . “BOLIN WAREHOUSES
      MAILING ADDRESS: 1120 OIL & GAS BLDG., WICHITA FALLS, TEXAS
      July 10, 1964
      Mr. C. E. Howard,
      Leonard,
      Texas
      Dear Sir:
      Pursuant to our conversation of this date concerning your operations in the grain business at Leonard, Texas, we submit the following proposition concerning your operation as related to ours.
      Knowing that you desire to buy rough grains in connection with your feed business or direct sale and knowing that you desire to purchase grain during season and hold it for the above uses, we agree with you that we will buy such grain as you desire to purchase and hold at the price you pay for it provided said price has been approved by us in advance.
      As grain is purchased by you, we will pay for it. Then when this grain is re-sold or used by you, you will re-pay us the price which you paid plus ten (100) cents per cwt. on milo and ten (100) cents per bushel on other rough grains. Further, you will pay six (6%) percent per annum for the money that is used in this transaction.
      You will issue bonded warehouse receipts to us for such grain as purchased complying with all regulations. In addition, you will keep the grain fully insured against all insurable contingencies. It is admitted that it may be necessary for you to buy milo which is too wet to store in which event you are privileged to re-sell without obligation to us provided we have not financed the purchase of said milo.
      If you find this is agreeable with you, please accept and return a copy of this letter. With best wishes, we are
      Yours very truly,
      BOLIN WAREHOUSES, INC.
      /s/ D. H. Bolin
      D. H. Bolin
      Accepted this 21 day of July, 1964
      /s/ O. E. Howard.”