author: KEITH, Justice.

text:
    Ivan LANGFORD, Jr., Appellant, v. Karl E. KRAFT, Appellee. DOWNING & WOOTEN ENTERPRISES, INC., Appellant, v. Karl E. KRAFT, Appellee.

    Nos. 7867, 7868.
    Court of Civil Appeals of Texas, Beaumont.
    June 23, 1977.
    Rehearing Denied July 28, 1977.
    C. Charles Dippel, Fred A. Collins, Houston, for appellants.
    W. C. McClain, Conroe, Karl E. Kraft, Houston, for appellee.

        Editor’s Note: The decision in Benoit v. State published in the advance sheets at this citation (551 S.W.2d 392) was withdrawn from the bound volume at the request of the Court.

   KEITH, Justice.

In an earlier appeal from interlocutory orders we reviewed the nature of the dispute between the parties. See Langford v. Kraft, 498 S.W.2d 42 (Tex.Civ.App. — Beaumont 1973), to which we refer generally.

We now review a final judgment entered after a trial to a jury wherein Kraft recovered his actual damages, $38,991.10, and exemplary damages in the amount of $100,-000 against the defendants, jointly and severally. Additionally, the court entered a mandatory injunction against Downing & Wooten [“Developers”] requiring the sealing of the outfall of the drainage system in the subdivision so as to prevent further damage to plaintiffs lands.

We review an extremely lengthy record with each appellant urging many points of error. We have also been favored with an amicus curiae brief confined to the liability of Langford as a professional engineer. Since we find error in the submission of the damage issue, we forego a more detailed statement of the facts.

In essence, it is sufficient to state that Kraft produced evidence which warranted the jury in finding that the drainage “improvements” designed by Langford and constructed in the Vicksburg Subdivision by developers caused a wrongful diversion of the surface water onto his lands in violation of § 5.086, Tex. Water Code Ann. (1972), which proximately caused damage to his lands.

The jury found that both defendants diverted the natural flow of surface water from Vicksburg. onto the plaintiff’s land after April 1, 1972, and that developers, after such date, permitted the diversion of such surface water to continue and that the diversion of such surface water caused permanent damage to plaintiff’s land. The court then submitted Special Issue No. 8, reading as follows:

“What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate Karl E. Kraft for the permanent damage, if any, to his 21.27-acre tract of land proximately caused by the diversion of surface water, if any, from Vicksburg Subdivision onto Plaintiff’s tract between April 1, 1972, and October 27, 1975, but not thereafter?”

To which the jury answered $38,991.10, the precise amount down to the last tenth of a dollar supported by the testimony of Kraft’s expert witness.

Both appellants objected to the submission of this issue in the form adopted by the court and each pointed out that, while the charge contained a definition of fair cash market value, no issue embodying such term was submitted to the jury. Further, objections were that at no time in the charge did the court inquire as to the market value of the land before the drainage “improvements” were installed and the value thereafter. The objections were properly preserved and are appropriately assigned as error.

Kraft’s judgment rests exclusively upon this damage finding. After a careful review of the authorities cited by the parties, we are of the opinion that reversible error is presented.

It is undisputed in our record that the damage to Kraft’s land was temporary rather than permanent, as those terms are defined in Atlas Chemical Industries, Inc. v. Anderson, 524 S.W.2d 681, 684-685 (Tex.1975). Yet, the jury was required to express in dollars and cents their estimate as to the permanent damage to Kraft’s land.

The issue submitted only the element of permanent damage to Kraft’s land; it made no inquiry — and the jury made no finding — as to temporary damage to the land.

In City of Abilene v. Downs, 367 S.W.2d 153, 161 (Tex.1963), the Court laid down this rule:

“Depreciation in the value of the property is the proper measure of damages in cases where a permanent nuisance has been created by the construction of works for a public use. . . . Under the general rule this is determined by the difference in the reasonable market value of the property immediately before and immediately after the injury.”

See also, authorities cited in Ansley v. Tarrant County Water Control and Improvement Dist. No. One, 498 S.W.2d 469, 474 (Tex.Civ.App. — Tyler 1973, writ ref’d n.r.e.).

As was aptly stated in Bradley v. McIntyre, 373 S.W.2d 389, 391 (Tex.Civ.App.— Houston 1963, writ ref’d n.r.e.):

“In the case of temporary injury to real estate, the measure of damages is ordinarily the cost and expense of restoring the land to its former condition, plus the loss or damages occasioned by being deprived of the use of same, with interest.”

See also, Weaver Construction Company v. Rapier, 448 S.W.2d 702, 703 (Tex.Civ.App. —Dallas 1969, no writ), where the distinctions between the measures of damage for permanent and temporary damage to land are set out with supporting authorities.

Kraft relies primarily upon two decisions to support the form of submission used: Ft. Worth & N. O. R. Co. v. Wallace, 74 Tex. 581, 12 S.W. 227, 228 (1889), and Jones v. Rainey, 168 S.W.2d 507, 509 (Tex.Civ.App. —Texarkana 1942, writ ref’d). We find neither to be dispositive.

We are of the opinion that the jury never had an opportunity to consider the proper measure of damages. The issue inquired of permanent damage and, as shown above, such damage was temporary only. Atlas Chemical, supra. Should the evidence upon any subsequent trial be substantially the same as that which we have reviewed in this record, the trial court should submit the damage issue involving temporary injury to real estate embodying the concept set out in Bradley v. McIntyre, supra.

We sustain Langford’s fourteenth and fifteenth points of error and developer’s fifth point. This action on our part will, consequently, requires a reversal and a remand of the cause.

Having found error requiring a reversal of the judgment, we have examined the briefs of the appellants to determine if any other points properly brought forward might require a rendition of the judgment. Having made our examination under the appropriate standards governing such review [Schiesser v. State, 544 S.W.2d 373, 377 (Tex.1976), and Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965)], we find no such points and all points seeking a rendition of the judgment are overruled.

However, in view of the possibility, if not probability, of another trial, we deem it appropriate to express our views upon another issue which has been raised by the parties in this appeal and which will confront the trial court upon another trial: the liability of the professional engineer.

First and foremost, Langford — supported by amicus — contends that he may not be held liable in the absence of pleading and proof that he was guilty of negligence proximately causing Kraft’s damage. We disagree.

In answering this question, it must always be remembered that this case arises under unusual circumstances. As said by Dean Prosser: “The law pertaining to trespass upon land has been described as ‘both exceptionally simple and exceptionally rigorous.’ ” Prosser, Law of Torts, § 13, at 68 (4th Ed. 1971).

These rules governing trespass to land have been subjected to criticism by some of the scholars. See, e. g., 1 Harper & James, The Law of Torts, § 1.3, at 9 (1956). But, Prosser, citing Gregg v. Delhi-Taylor Oil Corp., 162 Tex. 26, 344 S.W.2d 411 (1961), notes:

“The end of the old forms of action under the codes, however, has had its effect in relaxing the tight requirements; and there are now decisions finding a trespass in the entry of invisible gases and microscopic particles, where they do harm.” (Id. at 66)

In answering Langford’s contention, we turn to City of Houston v. Renault, Inc., 431 S.W.2d 322, 325 (Tex.1968), where our Supreme Court adopted Restatement, Torts, § 833 (1939), “and comments thereunder.” Actually, the Court adopted the comments under § 833 since the black-face language of the section does not set out any rule governing such rights and obligations. We quote the rule articulated in Renault:

“[T]he liability of one who causes an unintentional but substantial invasion of the land of another by interfering with the flow of surface water depends upon whether his conduct was negligent, reckless or ultrahazardous. Where the invasion is intentional, liability depends upon whether the invasion was unreasonable. An invasion is intentional within the meaning of these rules when the defendant acts for purpose of causing it or knows that it is resulting or is substantially certain to result from his conduct.”

Section 822, Restatement, Torts (1939), reads:

“The actor is liable in an action for damages for a non-trespassory invasion of another’s interest in the private use and enjoyment of land if, (a) the other has property rights and privileges in respect to the use or enjoyment interfered with; and (b) the invasion is substantial; and (c) the actor’s conduct is a legal cause of the invasion; and (d) the invasion is either (i) intentional and unreasonable
An intentional invasion is defined in § 825:
“An invasion of another’s interest in the use and enjoyment of land is intentional when the actor ... (b) knows that it is resulting or is substantially certain to result from his conduct.”

Under § 834, a person is subject to the liability stated in § 822, supra, for an invasion of another’s use and enjoyment of land caused by an activity “not only when he carries on the activity but also when he participates to a substantial extent in carrying it on.” Under Comment d (§ 834), a person participates in carrying on an activity “that either directly or through the creation of a physical condition causes an invasion . . . not only when he acts for his own benefit, but also when he acts in the capacity of servant, agent, or independent contractor. One is not relieved from liability merely because he acts for another’s benefit rather than his own.” (emphasis supplied)

Indeed, this court in McDaniel Bros. v. Wilson, 70 S.W.2d 618, 621 (Tex.Civ.App.— Beaumont 1934, writ ref’d), held:

“It is also the law that liability for trespass is not dependent upon personal participation. One who aids, assists, or advises a trespasser in committing a trespass is equally liable with him who does the act complained of.”

Several of the sections of the Restatement noted earlier were discussed in detail in Ford Motor Company v. Dallas Power & Light Company, 499 F.2d 400, 409-412 (5th Cir. 1974), applying the Texas law as enunciated in Renault, supra. The Court in Ford Motor reversed the trial court’s judgment because of the failure to submit the theory of intentional invasion of the rights of the plaintiff.

See also, Bunch v. Thomas, 121 Tex. 225, 49 S.W.2d 421 (1932), where a “dip” in a county road permitted water to converge on the neighbor’s land. The Court noted:

“The record also shows that Bunch [defendant], while road overseer, built a bridge where the concrete dip had been previously placed. He built the bridge under the direction of the county commissioners. The mere fact, however, that he constructed the bridge under the direction of the county commissioners would not relieve him from liability for the tort, if it was a tort.” (49 S.W.2d at 422-423)

Langford devotes many pages in expatiation of the theory that he cannot be held liable to Kraft because he simply drafted the plans and supervised the contractor only to the extent of ascertaining that the work was done in accordance with the plans. He places emphasis on the fact that Kraft failed to show that Langford had any ownership interest in Vicksburg or a right to participate in the developer’s profits. In essence, his contention is that since Kraft did not allege or attempt to prove negligence in the design, the recovery cannot stand. Again, we disagree.

After a careful consideration of the authorities cited by Langford, we do not find any to be in point or persuasive in the ease at the bar.

The parties have not cited any Texas case holding that a professional engineer who engages in activities similar to those of Langford in this case cannot be held strictly liable for trespass to the land of another in the absence of negligence. Barbee v. Rogers, 425 S.W.2d 342, 346 (Tex.1968), found our Supreme Court refusing to extend the rule of strict liability under Restatement (Second) of Torts, § 402A (1964), to the sale of prescription contact lenses by a licensed optometrist. The rationale of the decision was stated to be:

“The miscarriage, if such there was, rests in the professional acts of Respondents and not in the commodity they prescribed, fitted and sold. As to this, the jury found that the negligence of Respondents in failing to properly fit the natural curvature of Petitioner’s eyes was not the proximate cause of his injury.”

In his law review article entitled “Strict Tort Liability in Texas”, 11 Houston L.Rev. 1043, 1066 (1974), the author (James B. Sales) tersely states the rule of Barbee v. Rogers: “The concept of strict liability [in tort] applies to defective products, but not to defective services.”

In our case, we do not have a sale incident to the performance of professional services as in Barbee; instead, we have a professional engaged in planning an economic venture for another for a fee which resulted in a trespass and damage to land. We do not find Barbee helpful in the disposition of the question before us.

. However, our research has led us to a decision by Justice Traynor of the Supreme Court of California in the case of Gagne v. Bertran, 43 Cal.2d 481, 275 P.2d 15, 20 (1954), which stated a form of the rule in this language:

“[T]he general rule is applicable that those who sell their services for the guidance of others in their economic, financial, and personal affairs are not liable in the absence of negligence or intentional misconduct.”

Gagne was followed, generally, in La Rossa v. Scientific Design Company, 402 F.2d 937 (3rd Cir. 1968), 29 A.L.R.3d 1416, where the Court was making an Erie guess as to New Jersey law on a question which had theretofore been reserved by the New Jersey Supreme Court.

Gagne was followed again in Stuart v. Crestview Mutual Water Co., 34 Cal.App.3d 802, 811, 110 Cal.Rptr. 543, 549 (1973), where other cases from that jurisdiction are cited.

A similar result was reached by the Supreme Court of West Virginia in Foster v. Memorial Hospital Ass’n of Charleston, 219 S.E.2d 916, 921 (1975), involving the furnishing of human blood containing serum hepatitis viruses. The Court, citing Barbee v. Rogers, supra, held that a recovery for injury or damage resulting from the transfer of personal property under such circumstances, must be grounded in negligence and not in an action based upon a warranty.

See also, J. Sales and J. Perdue, “The Law of Strict Tort Liability in Texas”, 14 Houston L.Rev. 1, 116-117 (1976-77), where the foregoing and other cases are discussed in more detail.

Amicus, citing Gagne, Stuart, La Rossa, et al., discussed earlier, concludes that a professional engineer can never be liable for professional services in the absence of pleading and proof of negligence. The cases are readily distinguishable. Gagne involved “three alternative theories of recovery: (1) breach of warranty, (2) deceit, and (3) negligence. The trial court made findings supporting a recovery on each of these theories.” 275 P.2d at 18. The case was reversed, not because of the plaintiff’s failure to prove a right to recover but because he did not prove up his right to damages. Id. at 23.

La Rossa was a wrongful death action arising out of inhalation of dust from vanadium pellets which, according to the plaintiff, either activated a latent condition or actually caused cancer whereof the workman died. The plaintiff pleaded negligence and a breach of express and implied warranties. The trial court granted a motion to dismiss the counts on express and implied warranty and submitted the case on the negligence counts. The jury verdict was for the defendant. 402 F.2d at 939, 29 A.L.R.3d at 1419.

The La Rossa Court noted that professional services do not ordinarily lend themselves to the doctrine of tort liability without fault; but, La Rossa did not involve a trespass to land.

Nor was Stuart a trespass case. Instead, as noted by the court, it was a procedural “Chinese puzzle.” Fire having destroyed plaintiffs’ property, they sued the water company for breach of contract to supply water and negligence in the maintenance and operation of its water system. Plaintiffs also sued the design engineers of the water system for negligence in designing, engineering, and construction of the water system. 110 Cal.Rptr. at 545. It is not in point in the case at bar.

None of the out-of-state cases cited by amicus, and discussed above, involved a trespass caused by an interference with the flow of the surface waters. Instead, from our review of the authorities, many of which have not been mentioned in this discussion, we are of the opinion that the liability of Langford {and developers) is governed by the line of authorities cited upon the prior appeal; namely, Gregg v. Delhi-Taylor Oil Corp., supra, 344 S.W.2d at 416; Railroad Commission of Texas v. Manziel, 361 S.W.2d 560, 567 (Tex.1962); Glade v. Dietert, 156 Tex. 382, 295 S.W.2d 642, 645 (1956); 87 C.J.S. Trespass § 13 c, at 966-967 (1954); and Restatement (Second) of Torts, § 158 (1965), except insofar as such rules therein enunciated may have been modified by the language found in City of Houston v. Renault, supra, 431 S.W.2d at 325.

Because of the error mentioned, the judgment is reversed and the cause is remanded.

REVERSED and REMANDED.

      . In the former appeal, Langford appealed from an order overruling his plea of privilege to be sued in Harris County. His application for the writ of error was refused for want of jurisdiction. The application of Downing & Wooten for a review of our decision affirming the grant of a temporary mandatory injunction was refused with the notation, “no reversible error”.

      . “Permanent damages [to land] result from an activity which is ‘of such a character and existing under such circumstances that it will be presumed to continue indefinitely’; ‘the injury must be constant and continuous, not occasional intermittent or recurrent.’ ” 524 S.W.2d at 684, emphasis supplied.
      “Temporary damages [to land], however, have been found where the injury is not continuous but is sporadic and contingent upon some irregular force such as rain, . Id. at 685, emphasis supplied.

      . Section 833 reads: “Non-trespassory invasions of a person’s interest in the use and enjoyment of land resulting from another’s interference with the flow of surface water are governed by the rules stated in §§ 822-831.”

      . These three sentences from Renault are derived from language found in Comment a which, in turn, refers to §§ 822, 825, and 826-831.

        .McDaniel Brothers was cited with approval in Mountain States Tel. & Tel. Co. v. Voweil Const. Co., 161 Tex. 432, 341 S.W.2d 148, 150 (1960).

      . Counsel cites: Capitol Hotel Co. v. Rittenberry, 41 S.W.2d 697, 703 (Tex.Civ.App. — Amarillo 1931, writ dism’d); O’Neil Engineering Co. v. City of San Augustine, 171 S.W. 524 (Tex.Civ. App. — Galveston 1914, no writ); Pierson v. Tyndall, 28 S.W. 232 (Tex.Civ.App. — Galveston 1894, no writ).

      . See 402 F.2d at 942 (29 A.L.R.3d at 1423) commenting upon Totten v. Gruzen, 52 N.J. 202, 245 A.2d 1 (1968).


source: Caselaw Access Project

author: KEITH, Justice. STEPHENSON, Justice,

license: Public Domain

text:
    Joseph G. BROWN, Appellant, v. GULF COAST MACHINE & SUPPLY CO. et al., Appellees.
    No. 8008.
    Court of Civil Appeals of Texas, Beaumont.
    June 30, 1977.
    Rehearing Denied July 28, 1977.

      Donald E. Sample, Beaumont, for appellant.
    John H. Benckenstein, Beaumont, Martin W. Dies, Orange, for appellees.
   KEITH, Justice.

Plaintiff has perfected an appeal from an order which sustained a plea of privilege of one defendant, and has attempted to appeal from an order which sustained a plea in abatement as to the other defendant. We affirm the venue appeal and dismiss the attempted appeal as to the other defendant.

Plaintiff was an employee of Gulf Coast Machine & Supply Company (hereinafter “Company”) at its manufacturing plant in Jefferson County prior to his discharge on February 27,1976. As an employee, he was a member of the certified bargaining unit in such plant, International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers of America, Local 587, AFL-CIO (hereinafter “Union”), domiciled in Orange County, Texas.

Plaintiff sought recovery of damages against Company because of his alleged wrongful discharge. He asserted that his Union owed a statutory duty of presenting and prosecuting his grievance against Company since it was the collective bargaining agent of the employees in the unit. He alleged that Union breached such duty and he sought damages arising from such breach.

Union’s plea of privilege to be sued in its domicile in Orange County was controverted by plaintiff when he invoked subdivisions 4, 5, and 29a, Art. 1995, Tex.Rev.Civ. Stats.Ann. Company filed a plea in abatement and an answer subject thereto. The basic thrust of the plea in abatement was that the collective bargaining contract required an aggrieved employee to file his grievance within seven days after the grievance came into existence or, under the terms of the contract, it was specifically waived and the employee had no other rights or remedies under such contract.

During the course of the hearing, plaintiff and representatives of both defendants gave testimony; and, at the conclusion of the hearing, the court sustained the Union’s plea of privilege and the Company’s plea in abatement. We will first turn our attention to the attempted appeal from the order sustaining the plea in abatement.

Even a cursory examination of the record in this case discloses that the so-called plea in abatement was actually a plea in bar since it went to the merits of the plaintiff’s case. Texas Highway Department v. Jarrell, 418 S.W.2d 486, 488 (Tex.1967). In Kelley v. Bluff Creek Oil Company, 158 Tex. 180, 309 S.W.2d 208, 214-215 (1958), the Court criticized the practice of misnaming a plea in bar in order to procure a preliminary trial as if the plea were one in abatement, saying that the practice “is confusing and not to be encouraged.”

The trial court, although sustaining the “plea in abatement”, made no disposition of plaintiff’s claim. The rule applicable to non-appealable interlocutory orders is stated in Bloomfield Royalty Corp. v. Carco Investments, Inc., 435 S.W.2d 178,180 (Tex.Civ.App. — Houston [14th Dist.] 1968, writ ref’d n.r.e.):

“The right to appeal from an interlocutory order in an injunction case is purely statutory and embraces only the order provided for in the statutes and rules. . An accompanying nonappeala-ble interlocutory order is not made ap-pealable by the fact that an appeal properly lies from an interlocutory injunction' order. . . .” (citations omitted)

See also, City of Arlington v. Tex. Elec. Serv. Co., 540 S.W.2d 580, 582 (Tex. Civ. App. — Fort Worth 1976, writ ref’d n.r.e.); Jernigan v. Jernigan, 467 S.W.2d 621, 625 (Tex. Civ. App. — Beaumont 1971, writ dism’d).

Indeed, when the converse of the situation was presented to the Supreme Court (the trial court overruled the plea in abatement), that Court held, in Johnson v. Avery, 414 S.W.2d 441, 443 (Tex. 1966), that the order could be reviewed only after a final judgment had been rendered in such cause.

When a plea in abatement has been sustained, the aggrieved party may either amend to comply with the trial court’s order; or, he may refuse to amend and suffer a dismissal of his cause. See and compare Sizzler Family Steak Houses v. Nuss, 444 S.W.2d 843, 845 (Tex. Civ. App. — Houston [14th Dist.] 1969, no writ); Power v. Lan-dram, 424 S.W.2d 24, 26 (Tex. Civ. App.— Houston [1st Dist.] 1968, no writ). Cf., McCamey v. Kinnear, 484 S.W.2d 150, 152 (Tex. Civ. App. — Beaumont 1972, writ ref’d n.r.e.), dealing with special exceptions.

We have no jurisdiction to review the attempted appeal as to the Company; consequently, as to the Company, plaintiff’s appeal is dismissed at his costs.

However, plaintiff’s appeal as to the Union has been perfected properly and we have acquired jurisdiction to determine the merits thereof. Plaintiff seeks to maintain venue in Jefferson County under subdivisions 4 and 5 of Art. 1995. Many cases support this statement of the rule taken from Zurich Insurance Company v. Wiegers, 527 S.W.2d 511, 513 (Tex. Civ. App. — Austin 1975, no writ):

“Under § 4 the venue facts to be established are: (1) one defendant resides in the county of suit; (2) the party asserting his privilege is at least a proper party to the suit against the resident defendant; and (3) the plaintiff has a bona fide claim against the resident defendant.”

See also, Houston Sash & Door Company, Inc. v. Davidson, 509 S.W.2d 690, 694 (Tex. Civ. App. — Beaumont 1974, writ ref’d n.r. e.).

The trial court, after hearing extensive evidence, sustained the Union’s plea of privilege and ordered the cause transferred to the county of its domicile. Findings of fact and conclusions of law were not requested. Thus, in this appeal, we are required to apply the rule stated in James v. Drye, 159 Tex. 321, 320 S.W.2d 319, 323 (1959): “[E]very reasonable intendment must be resolved in favor of the trial court’s judgment.” See also, White Stores, Inc. v. Fielding, 533 S.W.2d 431, 432 (Tex. Civ. App. — Corpus Christi 1976, no writ).

Plaintiff testified at length concerning his efforts to enlist the aid of the Union in prosecuting his grievance against the Company. He was not corroborated by any other witness or written documents. Plaintiff, in so testifying, was an interested witness and his testimony, at best, simply raised an issue of fact for determination by the trier of fact. Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904, 908 (1942); Reed v. Aetna Cas. & Sur. Co., 535 S.W.2d 377, 378 (Tex. Civ. App. — Beaumont 1976, writ ref’d n.r.e.). The action of the trial court in sustaining Union’s plea of privilege amounted to an implied rejection of plaintiff’s testimony.

Plaintiff did not allege that he had any right to continue employment with the Company other than that set out in the collective bargaining agreement. Insofar as his claim against Company is involved, his rights could be protected and enforced only by compliance with the grievance machinery; and, his own testimony established that he did not invoke such grievance procedure within the contractual deadline therefor. Thus, plaintiff failed to establish the existence of a bona fide claim against the resident defendant. He cannot, therefore, maintain venue under subdivision 4 of the statute. Houston Sash & Door Co. v. Davidson, supra.

Plaintiff’s reliance upon subdivision 5 is likewise misplaced. The contract involved herein (the collective bargaining contract between Company and Union) is wholly silent as to where the signatory parties are required to perform. It is true that Company has its domicile in Jefferson County but neither it nor the Union “contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, . . . ” as required by the plain language of subdivision 5 Art. 1995. (emphasis supplied)

As stated in Rogers v. Waters, 262 S.W.2d 521, 522 (Tex. Civ. App. — San Antonio 1953, no writ):

“Venue under Section 5 is not controlled by the place where the contract requires the plaintiff to perform, but by the place where the contractual obligation sued upon requires the defendant to perform.”

See also, Heath v. Gilbreath, 536 S.W.2d 404, 405 (Tex. Civ. App. — El Paso 1976, no writ).

Having determined that the trial court properly sustained the plea of privilege filed by the Union, we affirm the judgment transferring the entire cause of Orange County. See and compare Harwood v. Hunt, 473 S.W.2d 287, 294 (Tex. Civ. App.— Beaumont 1971, no writ).

Affirmed in part; and in part, the appeal is dismissed.

STEPHENSON, Justice,

concurring.

I concur with the action of the majority in affirming the venue appeal.

I agree with the majority in finding the so-called plea in abatement to be a plea in bar. However, I do not agree with the disposition of the cause of action against the company. I would enter a judgment that plaintiff take nothing against the company.

The trial court heard evidence as to the so-called plea in abatement. As stated in the majority opinion, the questions raised were whether or not .plaintiff filed his grievance within seven days after the grievance came into existence or was waived. Plaintiff had notice that the court would try those issues and made no complaint. These were questions which went to the heart of plaintiff’s cause of action and not merely a matter of the sufficiency of the allegations which could be cured by amendment. The company’s pleadings did not merely raise dilatory matters which would abate the trial until some other action had been taken. More than seven days had passed and if plaintiff had not filed his grievance or the necessity for filing had not been waived, there was nothing plaintiff could do.

Plaintiff attempted to show it was his Union’s responsibility and he personally could not be held accountable. He cites Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), to support his position. That case is clearly distinguishable from the one before us. The contract in that case provided that only the Union could file a grievance while in our case the contract provides that either the Union or the plaintiff could have filed his grievance.

I would take the action taken by the Court of Civil Appeals in Whelan v. Killingsworth, 537 S.W.2d 785, 787 (Tex. Civ. App. — Texarkana 1976, no writ), and reform the judgment of the trial court to provide that plaintiff take nothing as to the company.


author: DAVIS, Commissioner.

text:
    Billy Joe BATTIE, Appellant, v. The STATE of Texas, Appellee.
    No. 53166.
    Court of Criminal Appeals of Texas.
    June 1, 1977.

      John A. Brady and Robert C. Roe, Jr., Fort Worth, for appellant.
    Tim C. Curry, Dist. Atty., Marvin Collins, Joe Shannon, Jr., Howard A. Borg and Jack
    Strickland, Asst. Dist. Attys., Fort Worth, Jim D. Voders, State’s Atty., and David S. MeAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for capital murder. Punishment was set at death.

The record reflects that on January 13, 1975, William Gray, manager of the In-N-Out Food Store in Fort Worth, finished his afternoon shift at 5:30 p.m. and left his niece, Peggy Hester, in charge of the store. At 7:30 p.m., Gray returned to the store and found all in order.

Appellant, in his written confession, which was admitted into evidence, stated that he, Artimus Mayfield, and Leon Turner entered the store in question that night. Appellant held a shotgun on Hester and a customer, later identified as John Howard Robinson. Turner got the money out of the cash register. Appellant then shot Hester and Robinson and the trio fled to Mayfield’s house, where Mayfield hid the shotgun.

At 9:00 p.m., customers entered the store and, finding no attendant present, called the police. Upon investigation, the police discovered the bodies of Hester and Robinson in a back room. An autopsy revealed that Hester died from two shotgun wounds in the chest cavity and Robinson died from shock suffered from a shotgun wound in the abdomen. Two .410 gauge shotgun shell casings were found in the store, along with some shotgun pellets. Shotgun wadding was recovered from both bodies.

A .410 gauge shotgun, identified as the murder weapon, was recovered from May-field’s home. It was determined that a total of $52.72 was taken from the store. The murder of Hester is the gravamen of this prosecution.

At the outset, appellant contends that the trial court erred in refusing to permit him to question prospective jurors concerning their understanding of the term “criminal acts of violence” within the context of Art. 37.071(b)(2), V.A.C.C.P. Article 37.071(b), supra, reads as follows:

“On conclusion of the presentation of the evidence [punishment stage of trial], the court shall submit the following issues to the jury:
******
(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society . ..”

The complete voir dire of the jury is not before us; only the voir dire of the twelve jurors selected is included in the record. Complaint is raised by a bill of exception.

The bill of exception recites in pertinent part:

“Specifically, the State would question a potential juror with respect to Art. 37.-071(b)(2) C.C.P., by properly indicating that the Court would instruct the Jury in the language of Art. 37.071(b)(2) C.C.P., at the conclusion of the trial, involving the question as to whether there is a probability that the Defendant will commit future criminal acts of violence that would constitute a continuing threat to society.
III.
“When the prospective juror indicated to State’s counsel that he or she understood such question or could follow such question, Defendant’s counsel would, upon his voir dire of such prospective juror, ask what he or she understood ‘criminal acts of violence’ to mean within the context of the phrase concerned.
IV.
“More specifically, Defendant’s counsel attempted to determine whether such potential jurors included ‘personal property’ as an object that could or would be, within their understanding of the phrase, something against which ‘criminal acts of violence’ could be directed.
V.
“The Court initially permitted Defendant’s counsel, over objection by the State, to question approximately three potential jurors with regard to their understanding of the phrase, ‘criminal acts of violence,’ as to whether such potential juror would include or exclude personal property within such person’s understanding of the phrase concerned.
VI.
“Thereafter, during the second day of an eight day voir dire examination, the trial court advised Defendant’s counsel that because of the extended time necessarily involved in questioning the potential jurors, the Court would sustain the State’s objection and not permit Defendant’s counsel to question any remaining potential jurors with regard to their understanding of ‘criminal acts of violence,’ to which ruling of the Court Defendant’s counsel properly and timely excepted with respect to such remaining potential jurors, and thereafter in compliance with the Court’s ruling, omitted propounding such or like questions during the remainder of the voir dire examination of the remaining potential jurors.”
VII.
“At the time of such ruling by the Court in excess of two-thirds of the 71 prospective jurors that were eventually interrogated on voir dire, had not been questioned by either side and only one juror had been selected.”

In King v. State, 550 S.W.2d 691 (1977), this Court, in an appeal from a conviction in a capital murder case, held that the trial court did not err in refusing the defendant’s request to define in its charge words and phrases contained in Art. 37.071, supra: deliberately, probability, criminal acts of violence, continuing threat to society.

In rejecting appellant’s contention, this Court first recognized that the words and phrases in issue had not been specially defined by the Legislature. Article 3.01, V.A.C.C.P., “Words and phrases,” provides:

“All words, phrases and terms used in this Code are to be taken and understood in their usual acceptation in common language, except where specially defined.”

In King, it was recognized that this Court has rejected similar contentions relating to a trial court’s failure to define “voluntarily” as contained in an indictment charging murder with malice, Joubert v. State, 136 Tex.Cr.R. 219,124 S.W.2d 368; “burglarious entry,” Thomas v. State, Tex.Cr.App., 543 S.W.2d 645; “sound memory and discretion,” Hogan v. State, Tex.Cr.App., 496 S.W.2d 594; “reasonable doubt,” Whitson v. State, Tex.Cr.App., 495 S.W.2d 944; “premeditated design,” Mitchell v. State, Tex.Cr.App., 365 S.W.2d 804.

In addition, King noted that in Powell v. State, Tex.Cr.App., 538 S.W.2d 617, it was stated that the meaning of the term “an act of violence or threatened violence to a person or property” as used in Y.T.C.A., Penal Code, Sec. 46.05, can be understood by a person of ordinary intelligence.

In King, it was noted that the rationale underlying the foregoing decisions was set forth in Joubert v. State, supra:

“Where terms used are words simple in themselves, and are used in their ordinary meaning, jurors are supposed to know such common meaning and terms and under such circumstances such common words are not necessarily to be defined in the charge to the jury.”

We immediately recognize that our holding in King that the trial court need not define “criminal acts of violence” in its charge is not dispositive of appellant’s contention since appellant’s complaint is directed to the need of veniremen’s answers to his questions in reaching an intelligent determination of when to use his peremptory challenges. Nonetheless, we do find guidance in the King decision in considering the instant problem.

While it has been held that great latitude should be allowed a party interrogating veniremen to enable his counsel to determine the desirability of exercising on the members thereof his right of peremptory challenge, Kincaid v. State, 103 Tex.Cr.R. 485, 281 S.W. 855; Smith v. State, Tex.Cr.App., 513 S.W.2d 823, it has also been recognized by this Court that the decision as to the propriety of any question is left to the discretion of the trial court and the only review will be for abuse of that discretion.

The Legislature of this State did not see fit to define “criminal acts of violence.” Where the Legislature does not define words and phrases, Art. 3.01, supra, provides they are to be “taken and understood in their usual acceptation in common language.” In King, this Court found that the term “criminal acts of violence” falls into that category of words “simple in themselves” and “jurors are supposed to know such common meaning and terms.” It would be paradoxical for the Legislature and this Court to presume that members of a panel know the meaning of such terms as “reasonable doubt,” “criminal acts of violence,” “sound memory and discretion” and on the other hand for this Court to hold that a trial court has abused its discretion in not allowing a defendant to inquire of each member of the panel as to his or her understanding of such terms.

In determining whether the trial judge abused his discretion in disallowing counsel to inquire about each venireman’s understanding of “criminal acts of violence” and whether “personal property” was an object that “could or would be, within their understanding of the phrase, something against which ‘criminal acts of violence’ could be directed,” a consideration is the length of time expended in such examination. To be sure, expediency must always be a secondary consideration when weighed against the right of a defendant to a fair trial. Nonetheless, the trial judge must be vested with some discretion lest voir dire examination get completely out of control.

The bill of exception in the instant case reflects that the trial court initially permitted counsel for appellant to ask prospective jurors questions relative to their understanding of the phrase “criminal acts of violence,” but that because of “the extended time necessarily involved in questioning the potential jurors,” the court sustained the State’s objection and did not permit “Defendant’s counsel to question any remaining potential jurors with regard to their understanding of ‘criminal acts of violence.’ ”

In Smith v. State, supra, we said:
“While appellant certainly has the right to examine the jurors to the end of forming his own conclusion, Mathis v. State, 167 Tex.Cr.R. 627, 322 S.W.2d 629 (1959); Olliff v. State, 161 Tex.Cr.R. 336, 276 S.W.2d 839 (1954); Carlis v. State, 121 Tex.Cr.R. 290, 51 S.W.2d 729 (1932); Pendergrass v. State, 121 Tex.Cr.R. 213, 48 S.W.2d 997 (1932); there is also no doubt that reasonable controls may be exercised by the trial judge to limit the questioning for various reasons. Dworaczyk v. State, 172 Tex.Cr.R. 142, 354 S.W.2d 937 (1962); Broussard v. State, 166 Tex.Cr.R. 224, 312 S.W.2d 664 (1958); Barry v. State, 165 Tex.Cr.R. 204, 305 S.W.2d 580 (1957); Kincaid v. State, 103 Tex.Cr.R. 485, 281 S.W. 855 (1926); Johnson v. State, 467 S.W.2d 247 (Tex.Cr.App.1971); McCarter v. State, 478 S.W.2d 524 (Tex.Cr.App.1972); Lewis v. State, 488 S.W .2d 740 (Tex.Cr.App.1973). Voir dire examination can become the lengthiest part of the proceeding . . . . To curb some prolixity, it is recognized that courts need have a discretionary area within which the examination might be reasonably limited.”

It takes no stretch of the imagination to recognize that voir dire examination could be endless if counsel were allowed to ask each prospective juror questions relative to his understanding of such words and terms as “reasonable doubt,” “criminal acts of violence,” and “sound memory and discretion” which have been found to be “words simple in themselves” that “jurors are supposed to know such common meaning.”

We conclude that the trial court did not abuse its discretion in denying appellant’s request to ask prospective jurors questions about their understanding of the term “criminal acts of violence.”

Appellant next contends that the trial court erred in not granting his motion for mistrial based upon the trial court’s failure to comply with the requirements of V.T. C.A. Penal Code, Sec. 12.31(b).

The applicable portion of Sec. 12.31(b), supra, reads as follows:

“Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.”

The record reflects that the trial court informed the veniremen that appellant had been charged with capital murder and that a sentence of life imprisonment or death was mandatory upon conviction of a capital felony. The trial court further propounded to the panel of prospective jurors the questions required by Art. 35.17, V.A.C.C.P., concerning the basic law and principles to be applied.

After the eleventh juror was selected, and prior to the selection of the twelfth juror, appellant filed a motion for mistrial complaining that the veniremen had not been qualified under Sec. 12.31(b), supra. The trial court overruled the motion, but stated that it would later swear the jury as to Sec. 12.31(b), supra. No objection was made by appellant as to the court’s suggestion and no objection was made when the trial court subsequently administered the oath to the jury, including the provision in question from Sec. 12.31(b), supra.

The transcription of the court reporter’s notes does not reveal that prior to the administration of the oath to the jury any of the veniremen were asked to state specifically whether “the mandatory penalty of death or imprisonment for life would affect their deliberations on any issue of fact.”

Appellant contends that the dictates of Sec. 12.31(b), supra, constitute a mandatory oath that must be administered to each prospective juror. In Smith v. State, Tex. Cr.App., 540 S.W.2d 693, in interpreting Art. 1257(d), V.A.P.C., now Sec. 12.31(b), supra, we stated the following:

“Appellant seems to be laboring under the impression that Article 1257(d), supra, in itself constitutes an oath to be administered in its own terms to each venire-person. Our interpretation of this statute is that it merely provides one criteria by which each venireperson is to be qualified.”

In Boulware v. State, 542 S.W.2d 677, we held that a defendant may waive his constitutional rights to have the trial jury selected under the .standards of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, by failing to properly object.

In the instant case, the record reflects that each juror was approved by appellant and that no objection was raised by appellant concerning the failure of the jurors to be qualified under Sec. 12.31(b), supra. Appellant presented his motion for mistrial after the eleventh juror was selected but did not object when the twelfth juror was selected without being qualified under Sec. 12.31(b), supra. Appellant does not contend that he was limited in any way in his inquiry into the qualifications of any juror for this reason, nor does he complain of the impaneling or dismissal of any venireman. All jurors who served in the trial of this cause were administered an oath which contained the requirements of Sec. 12.31(b), supra.

While the court should have qualified each venireman under Sec. 12.31(b), we perceive no reversible error under the circumstances here presented.

Appellant further contends that the trial court erred in administering the required statutory oath set forth in Art. 35.22, V.A. C.C.P. to the jury by arbitrarily enlarging the same.

The record reflects that the trial court administered the following oath to the jury:

“In cause number 3654A entitled The State of Texas versus Billy Joe Battie, do you and each of you solemnly swear that you will a true verdict render according to the law and to the evidence and do you further solemnly swear that the mandatory penalty of death or imprisonment for life will not affect your deliberations on any issue of fact so help you God?” All the jurors answered in unison, “I do.”

Article 35.22, V.A.C.C.P., states that the following oath shall be administered once a juror has been selected:

“You and each of you do solemnly swear that in the case of the State of Texas against a defendant, you will a true verdict render according to the law and the evidence, so help you God.”

Appellant cites no cases in which the oath was expanded and our investigation reveals none.

In Crisp v. State, 87 Tex.Cr.R. 137, 220 S.W. 1104, the phrase “so help me God” was omitted from the oath administered to the jury. Such omission was held to be fatal because the quoted words were a material part of the prescribed oath. In Arthur v. State, 3 Tex. 403, and Smith v. State, 1 Tex.App. 408, the trial court did not follow the language of the statutory oath and administered a completely different oath.

In the instant case, no words were omitted from the oath required to be administered, nor did the addition thereto vary the meaning in any manner because the oath complied with both 35.22, supra, and 12.31(b), supra. We perceive no reversible error.

Appellant, in his last ground of error, contends that the trial court erred in allowing a psychologist to testify that there was a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society because no predicate was laid for such a statement.

The record reflects that, upon a motion by appellant’s counsel, the trial court appointed Dr. Howard Patterson to administer a complete psychiatric examination to appellant. At the punishment stage of the trial, testimony was introduced detailing Dr. Patterson’s many years of training and experience as a registered psychologist. Dr. Patterson related that he administered five different internationally prescribed psychological tests to appellant, from which he concluded that appellant was a sociopath. Dr. Patterson stated that the tests revealed that appellant was hostile toward persons and there was a probability that appellant’s conduct would repeat itself. Dr. Patterson then testified that, based on his psychological findings, there was a probability that appellant would engage in acts of violence that would cause a continuing threat to society. Appellant objected to this last statement on grounds that there was no predicate in the evidence to justify same.

The record reflects that, in addition to the testimony of Dr. Patterson, a number of witnesses testified that appellant’s reputation for being a peaceful and law-abiding citizen was bad. Two other witnesses testified relative to overhearing appellant say, “I won’t leave any witnesses,” in talking to another person about a robbery. One of these witnesses, Sandra K. Williams, testified that appellant had threatened to kill her of he “saw me on the north side.”

Appellant argues that in light of the fact that only one hour was spent administering the tests, “the methods used,” and other evidence adduced from the doctor, his opinion was speculation and constituted an invasion of the province of the jury.

To authorize the use of Dr. Patterson’s testimony, it was necessary that the trial judge determine from common knowledge or proof that the behavior patterns of a sociopath are so related to some science or profession as to be beyond the knowledge of the average layman; and that Dr. Patterson had such skill, knowledge or experience in the field of psychology that it was probable his opinion would be of assistance to the jury in making a factual determination of whether there was a probability that appellant would commit criminal acts of violence and be a continuing threat to society in the future. Bueno v. State, Tex.Cr.App., 501 S.W.2d 339, and authorities there cited. The judge, on the basis of common knowledge, impliedly found that the behavior patterns of a sociopath were beyond the knowledge of laymen and that the witness’ knowledge and experience in this field would assist the jury. The evidence was properly admitted. See Moore v. State, Tex.Cr.App., 542 S.W.2d 664; Livingston v. State, Tex.Cr.App., 542 S.W.2d 655; Gholson v. State, Tex.Cr.App., 542 S.W.2d 395.

Finding no reversible error, the judgment is affirmed.

Opinion approved by the Court.

ROBERTS and PHILLIPS, JJ., concur in the result.


author: GREEN, Commissioner.

text:
    Armando ELLIS, Appellant, v. The STATE of Texas, Appellee.
    No. 53217.
    Court of Criminal Appeals of Texas.
    June 1, 1977.

      James R. Lawrence and Arnold X. Medina, Corpus Christi, for appellant.
    William B. Mobley, Jr., Dist. Atty., J. Grant Jones, Asst. Dist. Atty., Corpus Christi, Jim D. Yollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of murder. Punishment was assessed at life.

In his first ground of error, appellant complains of the court’s failure to include in its charge to the jury instructions on the law of circumstantial evidence. Appellant timely in writing objected to the omission of such instruction, which objection was overruled by the court prior to the reading of the charge to the jury. We conclude from the evidence that the court erred in refusing to charge on circumstantial evidence, and reverse the judgment.

The evidence reflects the following in connection with the death of the deceased:

About 9:15 a. m. July 9, 1975, the lifeless body of a young woman later identified as Jeanne Singh, hereafter called deceased, was found just off of Hiensen Road in Nueces County in a field. Police officers in Corpus Christi were notified and arrived at the scene in about five minutes. Deceased’s head was badly beaten and showed that it had received many blows with a blunt instrument. The body was taken to the morgue in Corpus Christi. An examination by Dr. Joseph C. Rupp, medical examiner of Nueces County, established that her head was beaten “to a pulp” and death was caused by a number of blows to the head with a blunt instrument, such as a metal tire tool.

Elizabeth Hernandez, a waitress and bartender at the Party Doll Lounge in Corpus Christi, testified that appellant, deceased and Robert Arguijo were in the lounge during the evening of July 8, 1975. Witness Hernandez and deceased had each taken an “acid” pill, and deceased felt “high” and very playful. Hernandez stated, “She was the kind of girl that like to, you know, play around with everybody, you know.” The witness saw appellant place his hands on deceased’s breasts and between her legs, at which time she pushed him away. She told appellant she wanted to go home, and he offered to take her. Deceased and Arguijo then left the interior of the lounge, and appellant followed in about ten minutes.

Appellant’s written confession given to Police Lieutenant Perez in the early morning of July 11 was introduced in evidence in part by the State and then in its entirety by appellant. The State relies on the confession as producing direct evidence of appellant’s participation in the murder as a party criminally responsible for the conduct of another. See V.T.C.A. Penal Code, Sec. 7.02(a)(2).

Omitting the acknowledgment of the Miranda and statutory warnings and preliminary statements not evidentiary of the offense, we copy below the confession as introduced. The word “State” immediately precedes the portions placed in evidence by the State; the word “Appellant” precedes the parts not offered by the State, but introduced by appellant.

Appellant first tells about his riding around in Corpus Christi in Pato’s car with his friend “Pato” (his nickname for Robert Arguijo) and a girl who left the car at a street corner in Corpus Christi, and then about him and Pato going to the Party Doll Lounge about 11:30 p. m. and meeting Jeanne Singh (deceased) with whom Pato had a conversation, and then continues:

(State): “Pato then came up to me and asked me if I was ready to go and we started walking out the door and Jeanne followed us outside and Pato got in the driver’s side, Jeanne in the middle and I got in the passenger’s side. Pato owns a blue Pontiac or a Buick and this is the car we left in. I told Pato to go by Greenwood and Baldwin so we could buy some beer. This was around 12 a. m. I went inside the Circle K and bought a six pack of Schlitz beer and Pato and Jeanne stayed in the car. From the Cirle (sic) K, we drove down Baldwin and got on the Freeway toward the high bridge.
(Appellant): “As we got to the high bridge, this is when everything started. Pato started putting his hand under Jeanne’s dress and Jeanne said, ‘Quit it, take me home.’ Pato kept feeling her off and Jeanne kept pushing his hands away. Pato stopped feeling her and kept driving until we got to a lonely road by the docks. We got out of the car and Pato told Jeanne to get in the back seat. While Pato was on top of Jeanne, a car was driving toward our car and Pato got up and pulled up his pants. He told Jeanne to stay in the back and to shut up or ‘I’ll kill you.’ Jeanne got real seared and she kept asking me, ‘Is he really going to kill me.’
(State): “As the car approached toward our car, Pato got in and we drove toward the lift bridge on Navigation. Before we got to the left bridge, Pato stopped the car and forced Jeanne to get in the front seat.
(Appellant): “Jeanne kept repeating, ‘Is he really going to kill me?’ ‘Please don’t let him do it.’ She asked me several times and I kept telling her, ‘I don’t think he’ll kill you, but I don’t know what he is going to do.’ While Jeanne kept asking if Pato was going to kill her, Pato kept saying, ‘Shut up or I’ll kill you.’
(State): “We drove down Navigation and we went over the left bridge and then from there I don’t know where we went to because Pato drove to back roads and then it was too dark to tell where we were. He drove to a lonely road where it was real dark and he parked. I got out of the car and went to the rear of the ear. Pato got out and went around the front of the car and met Jeanne as she was getting out of the passenger side of the car.
(Appellant): “Pato started beating her up and Jeanne fell to the ground and he started kicking her in the face and all over her body and at the same time Pato was pulling Jeanne’s clothing off and I saw Pato had Jeanne’s bra in his hand and then Pato raped Jeanne again. Jeanne kept her hands over her face and I kept telling Pato, ‘Please, Please spare my life and I’ll do anything you want.’ I got so afraid that I did not know what to do, but Pato just kept hitting her and raping her. The first time Pato started beating Jeanne, it was close to the car about four or five feet away. Finally, Pato got up and he went to the car and got a crow bar out of the back of the car and Jeanne got up and started running toward the field. Pato said, ‘Stop her, stop her,’ but I could not do anything because I was afraid. Pato then started running after Jeanne with the crow bar and Jeanne was screaming, ‘Help, Help! Please help me,’ and started begging to ‘Please Spare my life.’ Jeanne fell down while running and Pato got up to her and started beating Jeanne with a crow bar. Jeanne again said, ‘Please spare my life,’ and then she was quiet. I could not believe I had never seen anyone beat up so bad in my life. I wanted to tell Pato to quit hitting her, but I could not say anything. I was shocked seeing Pato hitting her so many times. Pato said, T have to kill her.’ Then Pato stopped hitting Jeanne and said, ‘let’s get in the car.’ I could not move and Pato again said, ‘Get in the car and don’t say anything and you don’t know nothing.’ I saw Pato put the crow bar in the car, but I don’t know what happened to Jeanne’s bra and panties. We drove off and Pato told me twice, ‘You don’t know nothing and keep your mouth shut.’
(State): “Pato took me home and dropped me at Lugo’s on Ayers. I went to the garage and turned the light on and Mr. Lugo came out and he asked me if I wanted to shower and eat and I said ‘No’ and I went to bed. Around 7:30 a. m., July 9th, 1975, Mr. Lugo woke me up and I noticed that I had blood spots on my pants, so I changed clothing and I placed the blood stained pants under a table close to the telephone, which is in the back of the garage. The pants are still there and you can get them. I went to work that day, Wednesday, July 9th, 1975. I kept thinking of what happened and I could not eat. On Thursday, July 10th, 1975, it was around 9:20 p. m. that I went to Wiggens Park on 19th Street. I was sitting on a bench, when I saw a detective and then two more and I started running toward Memorial Hospital. The police started chasing me and I went over a fence and I cut my hand. The police finally caught me and placed me under arrest. I was placed in a police car and a detective told me my rights. I was brought to the police station and booked and again warned of my rights and Lt. Perez asked me if I wanted to give a statement. I started telling Lt. Perez a bunch of lies and he stopped questioning me and was taken upstairs and placed in jail.
(Appellant): “I kept thinking about it and I decided to tell the truth. Lt. Perez came over to talk to me upstairs and I decided to tell him the truth after I understood my rights and after being told that I did not have to make a statement, but I wanted to tell the truth.
(State): “This statement is true and correct to the best of my knowledge and no promises or threats have been made to me.”

On July 10, police officers received information which caused them to look for appellant. When Officers Stivor and Harmon saw him near a park, appellant ran. Stivor and Harmon were unable to catch him, but Officer Tovar became involved in the chase and succeeded in arresting appellant.

Officer Roberts testified that after securing consent from appellant and the owner, Lugo, he searched Lugo’s upholstery shop on Ayers Street (see the reference to the shop in appellant’s confession) and took therefrom a pair of trousers (S.Ex. 25) and a sweater (S.Ex. 26). A chemist found a few specks of human blood on the trousers, not identified as to type, which could have been blood splattered from a short distance, and no blood on the sweater. A single hair was found on the sweater, similar to hair taken from deceased’s head at the morgue.

Other evidence introduced by the State was that hairs taken at the morgue from deceased’s hands and fingernails matched her own hair; hair taken from Arguijo did not match these hairs; human blood was found on deceased’s blouse and skirt; no blood was found on a tire tool turned over to the police by Arguijo, and no blood was on his clothes.

No one testified as an eyewitness to anything that occurred involving appellant, Ar-guijo, and deceased after they left the Party Doll Lounge. Except for appellant’s written statement, supra, there was no evidence of any statements made by appellant or by his companion Arguijo.

In its brief, after reciting appellant’s statements in his confession,

“The State contends that these admissions by the Appellant coupled with the evidence that he had been seen making sexual advances toward the victim on the night of the killing; that the blood found on his trousers was human blood; that a hair found inside of his sweater was similar to the hair from the victim; that he had tried to hide his trousers; and that when approached by the police he had fled, amount to direct evidence that Appellant was a guilty participant in the murder of the victim. Such evidence also is sufficient to sustain the jury’s verdict of guilty for Murder.”

The court charged on the law of criminal responsibility for the conduct of another (V.T.C.A. Penal Code, See. 7.02(a)(2)) but refused to charge on circumstantial evidence. An instruction on the law of principals under the former Code, or criminal responsibility for the conduct of another under Sec. 7.02, supra, is a State’s charge, and does not protect a defendant’s rights. An instruction on criminal responsibility or principals does not eliminate the necessity for a charge on circumstantial evidence if circumstantial evidence is relied upon to establish the guilt of accused. Ransonette v. State (opinion on motion for rehearing), 550 S.W.2d 36 (1977).

In finding that there was direct evidence of the defendant’s participation in the offense of which he was convicted, this Court on rehearing in Ransonette, supra, stated:

“A charge on circumstantial evidence is required only where the evidence of the main fact essential to guilt is purely and entirely circumstantial. See e. g. Wilson v. State, 154 Tex.Cr.R. 59, 225 S.W.2d 173 (1949). A charge on circumstantial evidence is necessary only when the State’s case depends entirely upon circumstances for conviction. See e. g., Nailing v. State, 152 Tex.Cr.R. 161, 211 S.W.2d 757 (1948); Wells v. State, 134 Tex.Cr.R. 412, 115 S.W.2d 658 (1938). An instruction as to circumstantial evidence need not be given where the State relies only in part on circumstantial evidence, Lawler v. State, 110 Tex.Cr.R. 460, 9 S.W.2d 259 (1927); Coleman v. State, 90 Tex.Cr.R. 297, 235 S.W. 898 (1921), even though the State relies on a chain of circumstances that may be considered the major part of the evidence on which the State relies for conviction. Dodd v. State, 149 Tex.Cr.R.
278, 192 S.W .2d 263 (1946). See 31 Tex. Jur.2d 682-683, Instructions, Sec. 123; Morris v. State, 402 S.W.2d 161 (Tex.Cr. App.1966); Russell v. State, 396 S.W.2d 117 (Tex.Cr.App.1965).”

In Hielscher v. State, Tex.Cr.App., 511 S.W.2d 305, this Court on the legal issue of whether a confession or admission is direct or circumstantial evidence said:

“It is well established that proof of an accused making an unequivocal admission or confession of the offense charged is direct and not circumstantial evidence of the main inculpatory fact, and a charge on circumstantial evidence is not required when proof of such admission or confession is in evidence. 4 Branch’s Ann.P. C.2d ed., Sec. 2050, p. 358; 31 Tex.Jur.2d, Instructions, Sec. 123, p. 688; Patterson v. State, 416 S.W.2d 816, 819 (Tex.Cr.App.1967). It is true that admission or confession must unequivocally admit the commission of the act charged before the court is relieved of the necessity of giving a charge of this character. See 31 Tex. Jur.2d, Instructions, Sec. 123, p. 689. See Martinez v. State, 151 Tex.Cr.R. 316, 207 S.W.2d 387 (1948).” (Emphasis added).

See also Knight v. State, Tex.Cr.App., 538 S.W.2d 101; Casey v. State, Tex.Cr.App., 523 S.W.2d 658.

There is no direct evidence in appellant’s written statement that appellant admitted killing deceased or that “acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids or attempts to aid the other person to commit the offense” (Sec. 7.02(a)(2) of V.T.C.A. Penal Code, supra). In fact, in the portion of the statement introduced by the State there is no evidence that deceased was killed or even assaulted. The portions introduced by appellant were, of course, in evidence for whatever they may show; however, there is no admission by appellant that he committed or solicited, encouraged, directed or aided or attempted to aid another in the commission of the offense of assault, or rape, or murder. By the remainder of the evidence, the State attempted by pure circumstances such as flight, a hair on his sweater, scattered blood on his pants, her own hair found in deceased’s hands as though she was attempting to protect herself, etc., to connect appellant with deceased’s murder.

The presence of appellant during the commission of an offense is not by itself direct evidence of his participation in the crime. McBride v. State, Tex.Cr.App., 486 S.W.2d 318; McCormick v. State, 168 Tex. Cr.R. 489, 329 S.W.2d 436; Burleson v. State, 132 Tex.Cr.R. 2, 101 S.W.2d 1020; Anderson v. State, 85 Tex.Cr.R. 411, 213 S.W. 639.

There being a total lack of direct evidence of appellant’s participation in the offense, either personally or as criminally responsible for the conduct of Robert Arguijo, the trial court reversibly erred in refusing to charge on the law of circumstantial evidence. Having so concluded, it is not necessary that we pass on appellant’s contention of insufficient evidence to sustain the verdict.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.


author: ONION, Presiding Judge.

text:
    Jesse BUTLER, Appellant, v. The STATE of Texas, Appellee.
    No. 54493.
    Court of Criminal Appeals of Texas.
    June 1, 1977.
    C. Nick Rothe, Jr., San Antonio, for appellant.
    Ted Butler, Dist. Atty., Gordon V. Armstrong and Susan Spruce, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

Appellant waived trial by jury and entered a plea of guilty before the court to the offense of unlawful possession of a firearm by a felon, in violation of V.T.C.A., Penal Code, § 46.05. Punishment was assessed at imprisonment for five (5) years.

The appeal is before us on a single ground of error. In it appellant contends that the indictment is fundamentally defective. The indictment, omitting the formal parts, alleges:

“On or about the 26th day of December, A.D., 1974, Jesse Butler did then and there knowingly and intentionally possess a firearm, to-wit: a pistol away from the premises where he lived; and prior to the commission of said act, the said Jesse Butler was duly and legally convicted of the felony offense of assault with intent to commit murder with malice, being a felony involving an act of violence and threatened violence to a person, to-wit: on the 30th day of January, A.D., 1967 in the 175th Judicial District Court of Bexar County, Texas, in a case on the docket of said court No. 66243, and entitled The State of Texas vs. Jesse M. Butler, the said Jesse Butler was duly and legally convicted of the felony offense of assault with intent to commit murder with malice, of which said offense said court had jurisdiction, and which conviction occurred and the judgment thereon became final prior to the commission of the said Jesse Butler of the act before charged against him; . . .” (emphasis supplied).

Appellant contends that an ambiguity is found in the last two lines of the indictment where it is alleged:

“. . . prior to the commission of the said Jesse Butler of the act before charged against him; . . . ” (emphasis supplied).

This “ambiguity,” according to appellant, renders the indictment fundamentally defective for uncertainty. More specifically, appellant is contending that the use of the word “of” in place of the word “by” in the questioned part of the indictment is erroneous. He further contends that this Court is not at liberty to supply the probable words so as to supply the probable meaning.

In construing indictments the context and subject matter in which the words are employed should be taken into consideration. Thompson v. State, 69 Tex.Cr.R. 31, 152 S.W. 893 (1913). Grammatical errors present no grounds for the quashing of an indictment, unless such errors render the indictment uncertain and one is unable to determine the charge intended. Stephens v. State, 69 Tex.Cr.R. 437, 154 S.W. 996 (1913).

The use of the word “of” in the questioned part of the indictment could not have misled appellant. No motion to quash the indictment was filed, and the question is raised for the first time on appeal. Moreover, the word “of” is sometimes used to mean “by.” See Webster’s Seventh New Collegiate Dictionary, p. 585, definition of the word “of,” note 2c, which uses as an example plays of Shakespeare, rather than plays by Shakespeare. An example of the Biblical use of the word “of” instead of the word “by” is found in Isaiah 53:3 where the phrase “despised and rejected of men” is used. The Supreme Judicial Court of Massachusetts in the case of Hannum v. Kings-ley, 107 Mass. 355 (1871), in construing a deed, held that the use of the word “of” was used “in its obsolete, but perfectly grammatical, meaning of ‘by,’ as in the familiar examples, ‘seen of men’ — Ted of the spirit’ — ‘tempted of the devil.’ ”

In Rocha v. State, 43 Tex.Cr.R. 169, 63 S.W. 1018 (1901), this Court was faced with a similar contention. There an indictment for murder alleged that the act was done “of his malice aforethought,” instead of “with malice aforethought.” Despite appellant’s motion to quash the indictment, we affirmed the judgment of conviction, saying:

“. . . If appellant, with his malice aforethought, did kill deceased, so far as this phase of the indictment is concerned, it is sufficient. Nor is there any merit in the contention of appellant that the pleader used the expression ‘of his malice aforethought,’ instead of ‘with his malice aforethought.’ If appellant killed deceased ‘of his malice aforethought,’ it was murder, as much so as if he had killed him ‘with malice aforethought.’ Words of the same import, conveying the same idea, in charging an offense are sufficient, although the statutory words are not used. These words and terms must be of equal or greater import than the statutory words, but, if they are of equal significance, or greater import, this will be sufficient. . . .”

The word “of” is a function word, and an examination of any dictionary will show that it has many uses. As used in this indictment, it has the same meaning as the word “by.”

Further, as stated above, the questioned portion of the indictment cannot be read out of context. The indictment alleges that appellant knowingly and intentionally possessed a firearm away from the premises where he lived. It additionally alleged that “prior to the commission of said act, the said Jesse Butler was duly and legally convicted of the felony offense of assault with intent to commit murder with malice,” etc. When construed as a whole, the indictment clearly alleged the offense defined in Sec. 46.05, supra.

The judgment is affirmed.

      . Section 46.05 provides:
      “(a) A person who has been convicted of a felony involving an act of violence or threatened violence to a person or property commits an offense if he possesses a firearm away from the premises where he lives. “(b) An offense under this section is a felony of the third degree.”

      . Unlike the indictment found in Tew v. State, 551 S.W.2d 375 (Tex.Cr.App., decided may 18, 1977), the instant indictment does allege a culpable mental state as required by V.T.C.A., Penal Code, § 6.02.


author: PHILLIPS, Judge.

text:
    Charles Elliott BECKWORTH, Appellant, v. The STATE of Texas, Appellee.
    No. 54580.
    Court of Criminal Appeals of Texas.
    June 1, 1977.
    G. Stanley Rentz, Waco, for appellant.

      Felipe Reyna, Crim. Dist. Atty., Randall Lee Rogers, Asst. Dist. Atty., Waco, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

This is an appeal from an order revoking probation.

On May 5, 1975, appellant pled guilty before the court to the offense of driving while intoxicated. His punishment was assessed at 30 days’ confinement and a $500.00 fine, with appellant being placed on probation for 12 months. Among the conditions of probation imposed was the requirement that he “Avoid injurious or vicious habits (totally avoid the use of narcotics, barbiturates, or habit forming drugs and alcoholic beverages.)”

On January 12, 1976, the State filed its motion to revoke probation alleging among other violations appellant “failed to avoid injurious and vicious habits and totally avoid the use of alcoholic beverages.” On February 11, 1976, a hearing was held on the State’s motion at the conclusion of which the court revoked appellant’s probation, finding that he had violated his probationary term as alleged.

In his first ground of error appellant complains that the trial court committed error in revoking his probation because there was no finding that appellant indulged in injurious and vicious habits, or that his use of alcohol was injurious and a vicious habit. In challenging the sufficiency of the evidence to sustain the trial judge’s order, appellant relies on Morales v. State, Tex.Cr.App., 538 S.W.2d 629, which he interprets as holding that mere consumption of alcoholic beverages is not sufficient to show that one was indulging in an injurious or vicious habit in such a manner as to justify revocation of probation.

The probationary condition involved in Morales required that the defendant “avoid injurious or vicious habits, such as drinking intoxicating beverages, gambling, etc.” In determining the sufficiency of the evidence to support a revocation of probation, this Court concluded that the testimony of an officer that in his opinion the defendant was intoxicated because he smelled of alcohol and was louder than usual did not support a finding for a violation of the condition of probation that the defendant “avoid injurious or vicious habits.” The Court observed that a single act of drinking cannot be characterized as a habit. The probationary condition before us in the instant case is more specific than that involving Morales. In the instant case the probationary term which stated that appellant should not indulge in injurious or vicious habits was further defined as totally prohibiting his consumption of alcoholic beverages.

In response to the trial judge’s inquiry if appellant was drinking on October 5, 1975, appellant admitted that he was. Appellant further testified that he had had four or five drinks on the night of January 8, 1976. He further admitted that he knew it was a violation of his probationary conditions to consume alcoholic beverages.

In addition to appellant’s testimony, Officer Sidney Radcliffe of the Bellmead Police Department testified that he arrested appellant on January 8,1976, for public intoxication. It was Officer Radcliffe’s opinion that appellant was highly intoxicated at that time. Radcliffe testified that appellant’s coordination was impaired, appellant staggered when he walked, appellant’s speech was thick-tongued and slurred, and that appellant’s eyes were bloodshot. Radcliffe further testified that this arrest took place at 1:30 a. m. and that appellant was standing on the porch of a private residence and appeared to be banging on the door.

Officer George Markum of the Waco Police Department testified that he arrested appellant for public intoxication on January 9, 1976, in the Sul Ross Recreation Center. Officer Markum concluded that appellant was intoxicated because his clothes were disarranged, his eyes were a little bloodshot, his breath smelled strongly of alcohol, and his tongue was thick and he was hard to understand. Markum further testified that he observed a half-full whiskey bottle in a brown bag in the front seat of appellant’s car. He also observed a cold Coke can which smelled like alcohol.

Appellant’s arrest in Bellmead on January 8, 1976, and his arrest in Waco on January 9,1976, were both the result of the police officers’ observations once they had been called to the scene by Lillian Thornton, appellant’s former girlfriend.

Appellant’s admission that he had consumed and possessed alcoholic beverages on more than one occasion and had on January 8, 1976, consumed four or five alcoholic drinks, together with the testimony of arresting officers on two different occasions, was sufficient to support the trial judge’s findings that on or about January 8, 1976, appellant consumed alcoholic beverages against the terms and conditions of his probation.

In appellant’s second ground of error he also contends that the trial court abused its discretion in revoking appellant’s probation for drinking four or five alcoholic beverages. Appellant argues that the only time he had problems with alcohol while he was on probation was when he was under emotional stress. Both in his testimony at the hearing on the State’s motion to revoke probation and in his brief, appellant points to the fact that he had voluntarily admitted himself to a veteran’s administration hospital for treatment of some emotional and alcohol related problems. Appellant blames Lillian Thornton as “the primary instigator of all his troubles” and states that he is no longer involved with her. It is his unique contention that since he has disentangled himself from the “root of his alcohol problems it seems fundamentally unfair to revoke his probation.”

Appellant points to Kelly v. State, Tex.Cr.App., 483 S.W.2d 467, for the proposition that a court may refuse to revoke probation even when there has been a technical violation of the probation terms. However, as noted in Kelly, “[T]he only question before this Court is whether the trial court abused its discretion in revoking probation.” (Emphasis added.) In our discussion of appellant’s first ground of error, we found that the State proved by a preponderance of the evidence that appellant violated the conditions of his probation. Scamardo v. State, Tex.Cr.App., 517 S.W.2d 293. There was sufficient evidence for the trial judge to conclude that the appellant had broken the contract he made with the court after appellant’s guilt had been determined. Thus, the trial judge did not abuse his discretion by entering the order revoking appellant’s probation.


author: ROBERTS, Judge.

text:
    Ex parte Wesley Lee WILLIAMS.
    No. 55132.
    Court of Criminal Appeals of Texas.
    June 1, 1977.

      Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an application for writ of habeas corpus under the provisions of Article 11.07, Vernon’s Ann.C.C.P.

Petitioner was convicted in Dallas County for possession of heroin and two offenses for felony theft. The trial court assessed punishment at three concurrent ten-year sentences in the Department of Corrections. The trial court ordered the State sentences to run concurrently with the federal conviction that petitioner was serving.

Petitioner contends that he has been denied “good time credit” for his State conviction while he was in the federal penitentiary. Petitioner was in federal custody from October 30, 1969, until February 5, 1975.

The trial court filed findings of fact and conclusions of law stating that petitioner has been awarded “flat time” and that no “good time” credit accrued towards his three State sentences while he was in federal custody.

From the records now before us, it appears that petitioner has been in continuous custody from February 6, 1969, until the present date. The trial court, relying on the recent decision of Ex parte Jasper, 538 S.W.2d 782 (Tex.Cr.App.1976), recommended that the Department of Corrections be ordered to award “good time credit” from the period of incarceration beginning February 6, 1969, and ending October 24, 1969. This is apparently the time the petitioner was in actual State custody awaiting trial.

Ex parte Jasper, supra, held that where the Texas authorities placed a detainer on a defendant in out-of-state custody and thereafter the defendant was sentenced after the effective date of Article 42.03, Vernon’s Ann.C.C.P., the defendant was entitled to “good time” credit that may have been earned while in the out-of-state custody. This Court held the defendants were in “constructive custody” of the State of Texas when the detainer was issued. Compare Harrelson v. State, 511 S.W.2d 957 (Tex.Cr.App.1974); Ex parte Alvarez, 519 S.W.2d 440 (Tex.Cr.App.1975); Ex parte Spates, 521 S.W.2d 265 (Tex.Cr.App.1975).

The identical issue that petitioner has raised has been raised previously, and the past decisions of this Court are not favorable to his position. See Gentry v. State, 464 S.W.2d 848 (Tex.Cr.App.1971); Ex parte Baird, 154 Tex.Cr.R. 508, 228 S.W.2d 511 (1950); and see Holtzinger v. Estelle, 488 F.2d 517 (5 Cir. 1974). As noted in these cases, the rule is well established that “good time” is awarded only to inmates while in the custody of the Department of Corrections. This is the result of a specific statutory provision, Vernon’s Ann.Civ.Stat., Art. 6184/, which was enacted by the Texas Legislature to encourage prison discipline by rewarding the good conduct of inmates while in the Department of Corrections.

Although we agree with the general statement of law, we believe it is time to reexamine this issue which petitioner presents.

The Department of Corrections should be the only agency that awards good time. In Gardner v. State, 542 S.W.2d 127 (Tex.Cr.App.1976), we held that the Department of Corrections is the only agency authorized to award good time credits even though such award is not mandatory but dependent upon the inmate’s good conduct during the service of his sentence, whether he be in the county jail or in the State prison system. There is no question that the inmate must be in the “physical custody” of the Department of Corrections before “good time” can be awarded for any previous confinement. In this day of efficient modern communications, however, we see no practical reasons for denying a Texas inmate a reward for good time conduct which he earned while he was confined in another jurisdiction yet subject to the “constructive custody” of the Texas Department of Corrections. We stated in Gentry v. State, supra, that one of the reasons good time credit is not awarded to prisoners who are not in the actual physical custody of the Department of Corrections is that Texas officials have no way to determine what reward should be bestowed on the inmate for his behavior while in the custody of some other jurisdiction. This language, while it may be appropriate where there are no records, is certainly no excuse for denying “good time credits” where the records are readily available.

“But for” the federal conviction, petitioner would have been transferred to the Department of Corrections when the State conviction became final. The federal incarceration precluded “physical custody” but petitioner was still in “constructive custody” of the Department of Corrections. As petitioner did not have his choice of custodian, it is repugnant to Article 1, Section 19, of the Texas Constitution to deny him credit for good conduct while in the federal institution. Obviously, the records will have to be available to see if this conduct would satisfy their predicate in awarding the petitioner good time credit.

We do not feel that Article 42.03, Vernon’s Ann.C.C.P., effective August 27,1973, is controlling, since this provision of the Code pertains to the trial court only. After sentence has become final, the defendant is in the custody of the Department of Corrections either through “constructive” or “physical” detention. It is this rationale that compels this Court, to require the Department of Corrections to apply “good time” credit equally to both; therefore, the Department of Corrections’ officials shall make whatever decisions are appropriate in awarding petitioner v/ith good time credit, if any, based upon the records from the federal authorities.

The relief sought is granted. A copy of this opinion will be delivered to the Department of Corrections.

      . Of course, this decision to reward good time can be made only after a prisoner has been placed in the physical custody of the Texas Department of Corrections. See Gardner v. State, supra.

      . This Court is well aware of the language in Pruett v. Texas, 470 F.2d 1182 (5th Cir. 1973), affd in 414 U.S. 802, 94 S.Ct. 118, 38 L.Ed.2d 39 (1973), which held that where no conduct records were maintained in the county jail it must be presumed that the conduct was good. That decision, although having a sweeping effect for “good time credit”, is not necessarily controlling in this situation. A close reading of Pruett clearly indicates that Pruett was denied “good time credit” because he was unable to post bond while his case was on appeal. None of the conditions in Pruett exist in this case except for the language that good time credit is only awarded to inmates in actual custody of the Texas Department of Corrections. In the instant case, petitioner was not in the custody of the county sheriff or in the control of a state district judge. Petitioner was in actual federal custody and simultaneously in constructive custody of the Texas Department of Corrections. To hold otherwise would indicate that the Texas sentence which became final was simply in limbo. We find it very difficult to say that his constitutional rights as provided by Art. 1, Sec. 19, of the Texas Constitution have not been violated when he has been denied credits, although actual records have in fact been kept in a federal institution. We do not find Pruett controlling.

      . Art. I, Sec. 19 of the Texas Constitution provides:
      “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”


text:
    Bobby WEAVER, Appellant, v. The STATE of Texas, Appellee.
    No. 53417.
    Court of Criminal Appeals of Texas.
    June 1, 1977.
    Charles E. McDonald, Bangs, for appellant.
    Gary R. Price, Dist. Atty., and W. Stephen Ellis, Asst. Dist. Atty., Brownwood, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury appellant was convicted of aggravated assault, a felony of the third degree. V.T.C.A. Penal Code, Sec. 22.02(a)(3). Punishment was assessed at ten years.

In his sole ground of error, appellant argues that the court erred in failing to grant his motion for an instructed verdict, since there was a fatal variance between the allegations of the indictment and the proof.

The indictment charged that on or about April 29, 1974, in Coleman County, appellant

“did then and there intentionally and knowingly use a deadly weapon, to-wit: 22 caliber Ruger automatic pistol, and did then and there threaten CORKEY CHAPMAN with imminent bodily injury by the use of said deadly weapon . .” (Emphasis added).

Appellant’s complaint is that “the indictment . . . states that a ‘.22 caliber R uger automatic pistol’ was used to threaten Corky Chapman, and the proof . shows only that a caliber .22 Luger, Serial No. 60,657, manufactured by Stoeger Arms Corporation, S. Hackensack, New Jersey, was used.” (Emphasis added).

The testimony of complainant Corkey Chapman, Sheriff of Coleman County, reflects that appellant in making the assault upon Chapman used a .22 caliber “L. R. L uger, serial No. 60,657, manufactured by Stoeger Arms Corp., S. Hackensack, New Jersey” (Emphasis added). Such a Luger automatic pistol was introduced in evidence by the State as S.Ex.No. 1, and a color photograph thereof is included in the record. Appellant testified S.Ex. No. 1 was the pistol he possessed and exhibited on the occasion of the alleged offense.

At the close of the State’s evidence, appellant moved for an instructed verdict due to the variance between the indictment and the proof as to the weapon used, which motion was overruled. Later, at the punishment stage, after the jury had returned its verdict assessing punishment, appellant moved for a judgment notwithstanding the verdict for the same reason — variance between the allegations in the indictment and the proof. His motion was denied.

This Court in Burrell v. State, 526 S.W.2d 799 at p. 802 stated:

“It is well settled that ‘[ajllegations not essential to constitute the offense, and which might be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment are treated as mere surplusage, and may be entirely disregarded.’ 1 Branch’s Ann.P.C., 2d ed., Sec. 517, p. 497 (1956). Stated another way, it may be said that if not descriptive of that which is legally essential to the validity of the indictment, information or complaint, unnecessary words or allegations may be rejected as surplusage.
“In Collins v. State, 500 S.W.2d 168 (Tex.Cr.App.1973), this court said:
“ ‘When not descriptive of that which is legally essential to the validity of an indictment or information, unnecessary words may be rejected as surplusage.’ See also Cohen v. State, 479 S.W.2d 950 (Tex.Cr.App.1972); Malazzo v. State, 165 Tex.Cr.R. 441, 308 S.W.2d 29 (1957).
“There is, however, a well recognized exception to the general rule discussed above, and that is where the unnecessary matter is descriptive of that which is legally essential to charge a crime it must be proven as alleged, even though needlessly stated. See 13 Tex.Law Review 489 (note); 1 Branch’s Ann.P.C., 2d ed., Sec. 518, pp. 491-498, and cases there cited.
“It is well established that where a person, place or thing necessary to be mentioned in the indictment is described with unnecessary particularity, all circumstances of description must be proven, Smith v. State, 107 Tex.Cr.R. 511, 298 S.W. 286 (1927), and cannot be rejected as surplusage, for they are thus made essential to the identity. Maples v. State, 124 Tex.Cr.R. 478, 63 S.W.2d 855 (1933). Thus, if the pleader makes unnecessary allegations descriptive of the identity of the offense charged, it is incumbent upon the State to establish such allegations by evidence. McClure v. State, 163 Tex.Cr.R. 650, 296 S.W.2d 263 (1956).”

See other authorities cited in Burrell holding that a description of the means used or means by which an assault was committed, though unnecessary, must be proved substantially as made.

See also Rowland v. State, Tex.Cr.App., 523 S.W.2d 676, and cases cited.

In the instant case, the indictment charged appellant with aggravated assault under the provisions of V.T.C.A. Penal Code, Sec. 22.02(a)(3), which reads:
“a. A person commits an offense if he commits assault as defined in Section 22.01 of this code and he:
* * * * * *
“(3) uses a deadly weapon.”

The allegation of the use of a deadly weapon was legally essential to charge the offense, since the offense of aggravated assault as provided in subsections (1) and (2) of Section 22.02 was not alleged in the indictment. The description of the deadly weapon was not a necessary allegation, but since it was alleged, it was descriptive of that which was legally essential to charge the offense; to-wit, the deadly weapon, and must be proved as alleged. See Burrell v. State, supra; Rowland v. State, supra; Goodwin v. State, 167 Tex.Cr.R. 485, 320 S.W.2d 852. Cf. Davis v. State, Tex.Cr.App., 532 S.W.2d 626.

The State contends that the allegation of “Luger” in the indictment is merely “a problem of misspelled words,” citing Henderson v. State, Tex.Cr.App., 422 S.W.2d 175. In Henderson, a burglary case, the allegation in dispute was that the entry was made with intent to take “corporal property” instead of “corporeal property.” This Court disposed of the contention of a fatal defect in the indictment as follows:

“We do not regard the misspelled word as fatal to the indictment. One dictionary definition of ‘corporeal’ is ‘corporal.’ A synonym for both is ‘bodily.’ Either comes within the statutory definition of personal property under the statutes relating to theft.”

See also Ablon v. State, Tex.Cr.App., 537 S.W.2d 267.

Appellant, at the guilt stage, testified as follows:

“Q Is there a gun called a ‘Ruger’? “A Strohm-Ruger Corporation, yes, sir. “Q And there are guns called ‘Rugers’ that you know of?
“A Yes, sir.
“Q Okay. But this isn’t a Ruger, is that correct?
“A No, sir, it’s not.”

The State made no effort at the trial to explain the variance between “Ruger” as alleged in the indictment and “Luger” as the evidence proved the “deadly weapon” used in the assault to be.

We do not find that it is evident from the record that the reference to the deadly weapon as a “Ruger” instead of a “Luger” was a mere misspelling error. Cf. Ablon v. State, supra. There being a fatal variance between the allegations and the proof, the conviction cannot stand. Rowland v. State, supra.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.