author: DOUGLAS, Judge.

text:
    Margarito SANCHEZ, Appellant, v. The STATE of Texas, Appellee. Oscar TORRES, Appellant, v. The STATE of Texas, Appellee.
    Nos. 53177-53178.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1976.

      Alberto M. Ramon, Eagle Pass, J. C. Tatum, III, Carrizo Springs, for appellant.
    Tully Shahan, Dist. Atty., and W. T. Ack-len, Asst. Dist. Atty., Del Rio, Jim D. Vol-lers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

These are appeals from convictions for the offense of aggravated assault. Following a trial before the court upon pleas of guilty, punishment was assessed in each case at two years.

Appellants, though represented by different counsel on appeal, were tried jointly and represented by the same court-appointed counsel. Sanchez and Torres both contend that the court should have withdrawn their pleas of guilty upon its own motion. They also challenge the sufficiency of the evidence to support a conviction for the offense of aggravated assault urging that the State has failed to show that the victim, Ernesto Flores, sustained “serious bodily injury” as required under the provisions of V.T.C.A., Penal Code, Section 22.02.

The State’s evidence consisted of a written stipulation by each appellant, the Maverick County Hospital bill pertaining to Ernesto Flores, statements by each of Flores’ companions on the evening in question as well as his own statement, and statements from three officers of the Eagle Pass Police Department who had investigated the incident. The State also attempted to have appellants stipulate that Dr. Arturo Batres, if he were in court, would testify that the injuries to Flores caused him protracted loss of a bodily function or organ. Unable to gain such a stipulation, the State rested subject to the doctor’s testimony. The court also instructed the State to call Dr. Batres and have him available to testify.

The written stipulations by Sanchez and Torres, in pertinent part, stated:

“On the 18th day of January, 1975, in Maverick County, Texas, I did then and there unlawfully, knowingly, and intentionally cause serious bodily injury to another, namely: Ernesto Flores.”

The hospital bill, admitted as State’s Exhibit No. 2, shows that for the period of January 18, 1975, to January 24, 1975, Ernesto Flores incurred charges in the amount of $426.43. The statements of Flores’ companions, Patty Freeman, Milanda McBeath and David Campbell, all basically state that on January 18, 1975, at approximately 10:00 p. m., as the four of them were walking home from the Fort Duncan Club just in front of Lee school, a car came toward them and pulled in the school parking lot. The occupants of the car yelled, “Hey, you bitches, come here,” and other profane words, and as the four of them started to walk faster, the occupants got out of the car. The driver had a beer bottle in his hand and grabbed Flores and as he got Flores on the ground the other occupants of the car joined in the fight. Before the driver could hit Flores with the beer bottle, David Campbell joined in the fight to prevent Flores from being hit with the bottle. The driver instead threw the bottle at Campbell. Campbell then ran and got the police and an ambulance took Flores to the hospital. The statements by the three officers made no reference to the severity of Flores’ injuries.

The defense then presented witnesses who testified to the non-violent nature and good character of the appellants. Sanchez and Torres also took the stand in their own behalf. The evidence presented by the defense before it rested merely presented a fact issue for the trial court as to the question of self-defense; it in no way touched on the extent of Flores’ injuries. •

When the defense rested, the trial judge asked the prosecutor if he still wanted Dr. Batres. The prosecutor replied, “Your Honor, I think we need some evidence on our serious bodily injury.”

On rebuttal, the State offered the emergency room record regarding Flores, his discharge summary for the time spent in Maverick County Hospital and his hospital history record. The State then called Ernesto Flores as a witness in an attempt to prove the seriousness of his injuries. Flores stated that as a result of the fight he lost consciousness and that he was suffering from amnesia because he could not remember what had happened between the time he was beat up and the time he woke up in the emergency room nor could he remember any parts of the play he had seen prior to the incident. On cross-examination, he testified that he could remember everything else including the details of the fight and that he had suffered no other loss of memory. The court on conclusion of the State’s rebuttal evidence then found appellants guilty of the offense of aggravated assault. Dr. Batres was not called to testify.

“Serious bodily injury,” as defined in V.T. C.A., Penal Code, Section 1.07(a)(34), “means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.”

Nowhere in the hospital records admitted or in Flores’ own testimony is there any evidence that his injuries created a substantial risk of death nor is there any evidence of permanent disfigurement. The discharge summary states that Flores’ condition on discharge was “satisfactory” and his prognosis was “good,” no mention is made of any disfigurement, permanent or temporary. His stay in the hospital was further described as “uneventful.” The physical examination admitted as State’s Exhibit No. 12 states that “[tjhere are multiple superficial abrasions and contusions of head and body,” no other abnormalities or impairment of bodily member or organ is noted. Flores’ own testimony as to his temporary amnesia is of itself insufficient to show any “protracted loss or impairment of any bodily member or organ.”

We further note that Dr. Batres, Flores’ physician, was not called by the State. The defense did call him as a witness at the hearing on their motions for new trial. Dr. Batres testified that he did not consider Flores’ injuries as serious. He said that Flores’ injuries did not create any substantial risk of death, he did not suffer from any serious permanent disfigurement, nor did he suffer from any protracted loss or impairment of the function of any bodily member or organ. The doctor further stated that Flores had a momentary loss of memory but did not suffer from real amnesia and that his six-day stay in the hospital was for observation and to insure that he did not have any other complications. Compare Gonzalez v. State, 146 Tex.Cr.R. 108, 172 S.W.2d 97 (1943), and Garrett v. State, 164 Tex.Cr.R. 275, 298 S.W.2d 945 (1957).

Even without considering the testimony on the motion for new trial, it is highly questionable that the evidence is sufficient to show serious bodily injury to constitute the felony offense charged. We hold that the trial court under the circumstances presented should have withdrawn the pleas of guilty on its own motion because the evidence reasonably and fairly raised an issue of fact as to the innocence of appellants. See the rule cited in Hayes v. State, 484 S.W.2d 922 (Tex.Cr.App.1972), and in Gonzales v. State, 480 S.W.2d 663 (Tex.Cr.App.1972).

For reasons stated, the judgments are reversed and the causes are remanded.


source: Caselaw Access Project

author: GREEN, Commissioner.

license: Public Domain

text:
    Virgle ELLIS, III, Appellant, v. The STATE of Texas, Appellee.
    No. 53228.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1976.
    Arthur J. Brender, Jr., Fort Worth, court appointed, for appellant.
    Tim Curry, Dist. Atty., Marvin Collins, James G. Bennett and Jack J. Strickland, Asst. Dist. Attys., Fort Worth, Jim D. Vol-lers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

Appellant plead guilty and was convicted for aggravated robbery. Punishment was assessed by the jury at eighty-five years.

The record reflects that on January 31, 1975, appellant and Willie Earl Mathis, acting together, and using and exhibiting pistols, robbed Norman Johnson, manager of a grocery store in Fort Worth, of money. Charles Johnson, father of Norman Johnson, was shot and killed by Mathis in the course of the robbery.

At the time of the offense appellant was over the age of fifteen years, but under seventeen years of age, he having been born February 14,1959. He was also under seventeen on the date of the trial, January 19, 1976.

Appellant initially contends that the trial court had no jurisdiction over him since he was a juvenile under the age of seventeen years at the time of the offense and “the record contains no order indicating that the Juvenile Court of Tarrant County, Texas, waived jurisdiction and certified appellant for criminal prosecution.”

V.T.C.A. Penal Code, See. 8.07, Age Affecting Criminal Responsibility, provides in part as follows:

“(a) Except as provided by Subsection (c) of this section, a person may not be prosecuted or convicted for any offense that he committed when younger than 15 years.
“(b) Except as provided by Subsection (c) of this section, a person who is younger than 17 years may not be prosecuted or convicted for any offense, unless the juvenile court waives jurisdiction and certifies him for criminal prosecution.”

The exceptions provided in Sub-section (c) have no application to the instant case.

V.T.C.A. Family Code, Sec. 54.02, Waiver of Jurisdiction and Discretionary Transfer to Criminal Court, in Sub-section (a) provides:

“(a) The juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for criminal proceedings if:
“(1) the child is alleged to have violated a penal law of the grade of felony;
“(2) the child was 15 years of age or older at the time he is alleged to have committed the offense and no adjudication hearing has been conducted concerning that offense; and
“(3) after full investigation and hearing the juvenile court determines that because of the seriousness of the offense or the background of the child the welfare of the community requires criminal proceedings.”

The remaining provisions of Art. 54.02 set forth the procedure to be followed by the juvenile court if such a hearing and determination is to be had.

Included in the appellate record are the transcript, a supplemental transcript, and the statement of facts. The latter includes in addition to the transcription of the court reporter’s notes at the trial on guilt and punishment the transcription of his notes of evidence at an examining trial prior to indictment, held October 7, 1975. The transcript, as distinguished from the supplemental transcript, does not contain an order waiving jurisdiction by the juvenile court and transferring same to the district court. However, the supplemental transcript, filed in this Court the same day as the original and the statement of facts, does contain such an order. This order of waiver of jurisdiction of the juvenile and transferring jurisdiction over him and this case was signed February 26,1975 by Hon. Scott Moore, Judge of the Juvenile Court of Tarrant County, after a full hearing. We have examined it, and we find that it fully and completely complies with all the provisions of V.T.C.A. Family Code, Sec. 54.02, supra. The order waived jurisdiction over appellant and the instant offense, and transferred jurisdiction to the Criminal District Court No. 4, Tarrant County. After appellant’s brief was filed in the trial court, that court directed that the order be filed in that court and forwarded to this Court in the supplemental transcript.

The statement of facts reflects that on October 7, 1975, Hon. Gordon L. Gray, Judge of Criminal District Court No. 4 of Tarrant County, conducted an examining trial in that court on complaints filed against appellant and Willie Earl Mathis involving the instant robbery case to determine whether they should be bound over for grand jury action. The fact that the district court had been given jurisdiction of this matter is established by Judge Gray’s opening remarks as follows:

“THE COURT: We have the case of Willie Earl Mathis and Virgle Ellis III. They have both — the Juvenile Court waived jurisdiction in both of these cases, and I have the copy of the order signed by Judge Scott Moore, so we will have the examining trial . . . ”

At the conclusion of the hearing, during which there was testimony of the hearing in juvenile court, Judge Gray stated:

“Okay, I will accept jurisdiction in both cases from the Tarrant County Juvenile Court, and I will bind these two over to the grand jury, and hold them without bond.”

In his supplemental brief, appellant challenges the propriety of this Court considering the order of waiver and transfer of jurisdiction since the record does not show that it was filed in the trial court at the time of the trial. Regardless of whether the order of the juvenile court was actually on file with the papers in the case, the record reflects that the juvenile court had waived jurisdiction over appellant and had transferred it to the district court in which all subsequent criminal proceedings were had, and that the district court had such order in its possession and acted on the waiver and transfer and assumed jurisdiction when the examining trial was conducted before indictment was returned.

Furthermore, the original transcript was approved by the court on May 10, 1976, and after receiving an extension of time, appellant filed his brief in the trial court July 14. Within five days thereafter, on July 19, the order of the juvenile court was filed in the district court, while that court still had jurisdiction. See Art. 40.09, Sec. 12, V.A.C.C.P.; Guzman v. State, Tex.Cr.App., 521 S.W.2d 267, 272; Webb v. State, Tex.Cr.App., 460 S.W.2d 903. The supplemental transcript containing the order reflects that the clerk duly notified counsel for the appellant and for the State of the court’s approval of the transcript containing the order, and does not reflect any objections thereto. See Art. 40.09, Sec. 7, V.A.C.C.P. A month later, on August 31, the transcript, supplemental transcript and statement of facts were filed in this Court. Under the circumstances reflected, the trial court properly directed that the supplemental transcript be filed in order that the true facts might be shown and the record speak the truth. See Guzman v. State, supra; Almand v. State, Tex.Cr.App., 536 S.W.2d 337.

The record reflects that the trial court had jurisdiction. See Moreno v. State, Tex.Cr.App., 511 S.W.2d 273; Tatum v. State, Tex.Cr.App., 534 S.W.2d 678. The first ground of error is overruled.

Appellant next urges fundamental reversible error in the admission of “character evidence of such a nature as to inform the jury of prior juvenile delinquency adjudications against appellant.”

Witnesses Jerry Wood, David Taylor and Bob Tacker, all juvenile probation officers, and Robert Campbell, E. W. Geeslin and B. J. Humphreys, police officers, testified that they knew the reputation of appellant in the community in which he resided for being a peaceable and law-abiding citizen, and that such reputation was bad. None of these witnesses were asked about any adjudications of juvenile delinquency or other specific matters, and their only testimony regarded general reputation. There was no evidence introduced before the jury that appellant had a juvenile record.

It is well established that a juvenile officer after being qualified is as competent as any other witness to testify concerning a defendant’s reputation. Allen v. State, Tex.Cr.App., 533 S.W.2d 352 and authorities there cited; Fortson v. State, Tex.Cr.App., 474 S.W.2d 234. Appellant has not demonstrated that the officers’ knowledge was based on the events leading to the present prosecution, or to any adjudications of juvenile delinquency. Proctor v. State, Tex.Cr.App., 503 S.W.2d 566. Punishment being the only issue in this trial before a jury on a plea of guilty, the general reputation testimony was admissible.

Furthermore, each of the above named witnesses except Wood testified without objection. See Allen v. State, supra; Mitchell v. State, Tex.Cr.App., 524 S.W.2d 510.

Reversible error is not presented.

The judgment is affirmed.

Opinion approved by the Court.

      . The indictment in the instant case was presented by the grand jury November 18, 1975 in Criminal District Court No. 4, Tarrant County. The trial of this case was conducted in that court, with Judge Gordon L. Gray presiding. Appellant was represented at both the examining trial and the trial after indictment by the Hon. Charles E. Webb.

      . We strongly advise that to prevent jurisdictional problems from arising the order of the juvenile court waiving jurisdiction and transferring same to the proper court for criminal proceedings, see Family Code, Sec. 54.02(h) be filed with the clerk of the court to which the jurisdiction is transferred prior to or at the time of the examining trial provided in subsection (h) and, in the event of an indictment, be kept with the court papers in the case.


author: ROBERTS, Judge.

text:
    Harold L. SINGLETON, Appellant, v. The STATE of Texas, Appellee.
    No. 52034.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1976.

      Michael S. Mankins, Jack W. London and Keith E. Kisner, Austin, for appellant.
    Robert 0. Smith, Dist. Atty., and Stephen H. Capelle, Asst. Dist. Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction under the old Code for the offense of murder with malice. The jury assessed the punishment at life imprisonment in the Texas Department of Corrections.

The sufficiency of the evidence is not challenged. Appellant’s primary contention is that his confession should not have been admitted into evidence because it was involuntarily given.

The confession recited that appellant had been advised of his rights and was proceeding voluntarily. It further stated that on March 12, 1973, the appellant went to the Austin Terminal Produce Company with the intention of committing robbery. He waited in front of the office’s locked front door until the deceased opened the door. As the deceased opened the door, the appellant pushed his way into the office and stabbed the deceased approximately three times. The knife broke as appellant stabbed the deceased in the head. After the deceased fell to the floor, appellant picked up a chair and hit him “about seven times.” After attacking the deceased, appellant grabbed the money bag in the office and left. He later caught a bus bound for Kentucky. While in Virginia, appellant telephoned his mother in Austin and she told him that someone wanted to talk to him about a murder. Appellant then caught a bus back to Austin.

Other evidence for the State showed that the deceased died almost instantaneously from the front leg of a metal chair being driven twice through his skull. Appellant’s fingerprints were found on the chair and were admitted into evidence. Appellant returned to Austin on March 15, 1973, three days after the offense, and turned himself in voluntarily to the Austin Police Department.

Upon arrival of the two interrogating officers, Sergeant Jerry L. Spain and Officer Roger Napier, appellant was taken to a magistrate’s chambers within the same building and was advised of his rights. This occurred at approximately 7:00 p. m. on March 15, 1973. Appellant was then returned to the Criminal Investigation Division on the third floor, where he was constantly in the presence of Sergeant Spain. At approximately 9:00 p. m., appellant was taken by the officers to the Department of Public Safety in Austin for polygraph examination which lasted approximately one hour. At approximately 10:00 p. m., appellant was returned to the Austin Police Department by Spain and Napier and was constantly in their presence until the confession was signed at approximately 1:00 a. m., March 16, 1973.

Appellant argues that since he was under constant supervision from the time he arrived at the Austin Police Department until a statement was signed six hours later, in addition to being taken to the Department of Public Safety for polygraph examination, there arises a presumption that the subsequent confession was given involuntarily. We do not agree. Appellant’s reliance on Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967), is misplaced. In Clewis, the defendant was never fully advised of his right to counsel and his right to remain silent. He was not taken before a magistrate immediately. He was subjected to 38 hours of intermittent interrogation.

In the case at bar, the appellant voluntarily turned himself in to the police. He was told not to say a word until he appeared before a magistrate. Approximately half an hour after he turned himself in he was taken before a magistrate and given the statutory warnings. After the interrogation began, the officers continuously repeated the magistrate’s warning. The warning was meticulously explained to the appellant in terms that appellant understood. Appellant declined assistance of counsel. While appellant was in custody he was given food and drink. Appellant was not threatened in any manner during the interrogation. There was sufficient evidence for the trial court to conclude that the confession was voluntarily given, and the trial court did not err in admitting it into evidence after considering the above facts at a Jackson v. Demo hearing.

Appellant’s first ground of error is overruled.

By his second ground of error, appellant contends that the trial court erred in charging the jury in the disjunctive on the mode of commission of the offense when the indictment alleged the mode of commission in the conjunctive.

The indictment alleged that the appellant killed the deceased “by stabbing him with a knife and beating him with a chair . .” (Emphasis added). The court charged the jury to find the appellant guilty if they believed beyond a reasonable doubt that he murdered the deceased by “stabbing him with a knife or beating him with a chair . . . .” (Emphasis added).

The appellant did not object to the court’s charge on this ground. Nothing is presented for review. Cf. Moreno v. State, 541 S.W.2d 170, 173 (Tex.Cr.App.1976).

In his final ground of error, the appellant complains of the trial court’s failure to charge on circumstantial evidence. The appellant objected to the court’s charge for such failure. A charge on circumstantial evidence need not be given where there is evidence of an unequivocal admission by the accused that he killed the deceased. Sloan v. State, 515 S.W.2d 913, 916 (Tex.Cr.App.1974). However, appellant argues that since the jury was instructed to consider his confession only if they believed beyond a reasonable doubt that it was voluntarily given, there was a possibility that they did not consider the confession because they did not believe it to be voluntary beyond a reasonable doubt. If this occurred, appellant argues that the only evidence remaining to support appellant’s conviction would be circumstantial. Therefore, he contends that a charge on circumstantial evidence should have been given.

As stated, the confession was voluntarily given and the trial court did not err in admitting it into evidence. The only evidence before the jury on the fact issue of voluntariness was the testimony of the two interrogating officers. This evidence supported a finding of voluntariness. The error in failing to give a charge on circumstantial evidence conditioned upon the jury not considering the confession to be voluntary, if error at all, is harmless. Cf., Dorsey v. State, 485 S.W.2d 569, 573 (Tex.Cr.App.1972).

Appellant’s final ground of error is overruled.

The judgment of the trial court is affirmed.


text:
    Richard Jule FRONATT, Appellant, v. The STATE of Texas, Appellee.
    No. 53091.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1976.

      Sam R. Wilson, Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge and Charles D. Cottingham, Asst. Dist. Attys., Houston, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from an order revoking probation.

On November 12,1973, the appellant was found guilty, upon his plea, of the felony offense of breaking and entering a coin-operated machine. His punishment was assessed at four (4) years probated. Condition (a) of appellant’s probation was that he “Commit no offense against the laws of this State or of any other State or of the United States.”

On May 16, 1975, the State filed its motion to revoke probation. The motion alleged that appellant violated condition (a) of his probation in that appellant

“ . . . on or about May 13, 1975 committed the offense of Possession of Criminal Instruments in the 1400 block of Wood Hollow in Harris County, Texas.”

On June 30, 1975, a hearing was held on the motion to revoke; at its conclusion, the court found that appellant had violated the terms of his probation

“ . . .in that on or about the 13th day of May, A.D. 1975 (appellant) did unlawfully possess criminal instruments in Harris County, Texas with intent to commit theft, a felony.”

Accordingly, the court revoked appellant’s probation and imposed sentence.

By his first two grounds of error, appellant contends that the State’s motion to revoke did not adequately allege a violation of the criminal law; that the language of the allegation was too vague and indefinite to adequately apprise appellant of what he would be called upon to defend against; and that as such, the motion to revoke was fundamentally defective.

Without reaching the merits of these contentions, we note that appellant waived a reading of the motion to revoke probation and did not object to or request clarification of the State’s allegation on the grounds now asserted. Such failure renders it unnecessary for this Court to consider the alleged grounds of error. Willey v. State, 501 S.W.2d 84, 85 (Tex.Cr.App.1973); McClure v. State, 496 S.W.2d 588, 590 (Tex.Cr.App.1973) (and cases there cited).

Appellant’s first two grounds of error are overruled.

By his next two grounds of error, the appellant contends that the revocation of probation cannot be sustained for violation of V.T.C.A., Penal Code, Sec. 16.-01(a)(1), because said statute is unconstitutional in that it is vague, indefinite, over-broad and fails to inform the public of what acts constitute criminal conduct. V.T.C.A., Penal Code, Sec. 16.01, entitled “Unlawful Use of Criminal Instruments”, provides that:

“(a) A person commits an offense if:
(1) he possesses a criminal instrument with intent to use it in the commission of an offense; or
(2) with knowledge of its character and with intent to use or aid or permit another to use in the commission of an offense, he manufactures, adapts, sells, installs, or sets up a criminal instrument.
(b) For purposes of this section, ‘criminal instrument’ means anything that is specially designed, made, or adapted for the commission of an offense.
(c) An offense under this section is a felony of the third degree.”

In Universal Amusement Co. v. Vance, 404 F.Supp. 33 (S.D.Tex.1975), vacated in part on other grounds, sub nom. Butler v. Dexter, 425 U.S. 262, 96 S.Ct. 1527, 47 L.Ed.2d 774 (1976), there is found a discussion of Sec. 16.01. The court stated that from the clear language of the statute itself and the practice commentary thereto it can be seen that the statute

“ . . . is a statute aimed at incipient crime—possession of a criminal instrument, with the specific intent to use the instrument in the commission of a crime. Not only is it not aimed at an instrument which has lawful uses, but it is not aimed at overt criminal actions at all.” Id., at p. 48.
******
“The statute, Sec. 16.01 of the Texas Penal Code, is clearly drawn and very specific. . . . The statute was obviously designed to deal with a very small class of property which can be used only for the commission of crime and to deal with persons in possession of such property or engaged in the manufacture or adaptation of the property exclusively for use in criminal activities, before the criminal activities are undertaken or completed.” Id., at p. 51.

We subscribe to the views stated in Universal, and decline to hold Sec. 16.01 unconstitutional on the bare allegations that it is vague, indefinite and overbroad.

By his next ground of error, the appellant contends that the evidence is insufficient to show that he possessed criminal instruments at the time of his arrest. Furthermore, appellant contends that there was insufficient evidence to show that such instruments were specially designed, made or adapted for the commission of an offense.

Houston police detective Joe Dickerson testified as to the nature of the paraphernalia possessed by the appellant and alleged to be criminal instruments. He said one such device was known as a Las Vegas pick and that it was designed to unlock the round lock found in Ace-type locks. He identified similar devices possessed by the appellant as being lock picks.

Detective Dickerson further testified that the lock picks were functional. He based this opinion on many years of experience specializing in coin-operated machine burglaries, observation of similar lock picking devices, demonstrations by professional lock pickers, and conversations with manufacturers.

William Weber testified that he took care of coin-operated washers and dryers at various apartments in Houston, Texas. He further testified that many of the machines have an Ace-type lock.

Houston police detective D. H. Kendricks testified that the appellant was arrested at his apartment and given the Miranda warning. After Kendricks advised appellant of his legal rights, he asked him, “Where are the rest of your picks?” to which appellant responded “over there” and pointed to a room where Kendricks had found other lock picks, State’s Exhibits 8 and 4. The appellant was standing approximately ten feet from the other paraphernalia at the time he made this response. This testimony was elicited without objection.

In Bennett v. State, 476 S.W.2d 281 (Tex.Cr.App.1972), we held that appellate review of a revocation of probation proceeding is limited to a determination of whether the trial court abused its discretion. We further held that in such a proceeding the trial court is the sole trier of the facts, the credibility of the witnesses and the weight to be given their testimony.

Appellant’s ground of error relating to the sufficiency of the evidence is overruled.

In his final ground of error, the appellant contends that the trial court’s finding did not constitute a finding that appellant committed a violation of the law. More specifically, appellant contends that the trial court did not find that appellant possessed the criminal instruments with the intent to use them in the commission of an offense, but only that appellant possessed “criminal instruments in Harris County, Texas with intent to commit theft.” We observe that this contention was not brought to the attention of the trial court at the revocation hearing. Thus, nothing is preserved for this Court to consider on review. McClure, supra, at 590.

The judgment of the trial court is affirmed.

      . Appellant does not challenge the sufficiency of the evidence with regards to the proof that he intended to use the lock picks in the commission of an offense.


text:
    Ex parte James Phillips SAWYER.
    No. 53114.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1976.
    Carol S. Vance, Dist. Atty., and Clyde P. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a habeas corpus action instituted by petitioner in the 208th District Court of Harris County for the purpose of obtaining a bail reduction. The record reflects that petitioner was charged with attempted burglary of a habitation and his bail was set in Justice Court at $20,000.

Appellant is represented by court-appointed counsel. Because counsel has not filed a brief in this case, we must abate this appeal.

In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court held that court-appointed counsel on appeal must act as an active advocate on behalf of his indigent client even where he finds the appeal to be frivolous and without merit. In Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969), this Court adopted the rule and standards set out in Anders. And see Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974).

In Ex Parte Grant, 476 S.W.2d 702 (Tex.Cr.App.1972), we held that the standards required of counsel by Anders and Gainous applied as well as to habeas corpus cases challenging extradition. We conclude that these standards must also apply in a case such as the one before us, where appellant seeks to challenge an allegedly high bail by means of habeas corpus.

The Supreme Court’s concern in Anders was to assure that “penniless defendants [have] the same rights and opportunities on appeal — as nearly as is practicable — as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel.” Anders, supra, 386 U.S. at 745, 87 S.Ct. at 1400.

There can be no question but that appellate counsel perform a valuable service in appeals of bail cases. Under Art. 17.15, Y.A.C.C.P., several standards are used to guide the trial judge and this Court in determining the proper amount of bail; therefore, counsel on appeal can greatly aid his client’s cause by directing this Court’s attention to evidence in the record which does or does not support the contention that bail is excessive. Certainly it can not be denied that those defendants who can afford counsel see the advantage of using them in appeals of this sort. See, e. g., Ex Parte Davis, 542 S.W.2d 192 (Tex.Cr.App.1976); 1 TCR 970.

It follows that this appeal must be abated so that counsel may file a brief on appellant’s behalf. This brief must, at the very least, comply with the requirements of An-ders, Gainous, and Currie.

Since the record in this case is relatively short, counsel will be allowed fifteen days from the date of this opinion to file his brief in this Court. Thereafter, the State will be allowed fifteen days to file its brief.

The appeal is abated.

      . See Art. 44.34, V.A.C.C.P.


author: OSBORN, Justice.

text:
    Ex parte David ALVARADO, Relator.
    No. 6581.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 13, 1976.

      Mario J. Martinez, El Paso, for relator. Salvador David Reyes, El Paso, for appel-lee.
   OPINION

OSBORN, Justice.

This is an original habeas corpus proceeding under Article 1824a, Tex.Rev.Civ.Stat. Ann., to secure the release of the Relator, David Alvarado, who has been adjudged in contempt of the Court of Domestic Relations of El Paso County, Texas, for failure to make child support payments. The writ is granted and Relator is ordered discharged.

On the record before us it appears that the parties were divorced on December 18, 1975, in Cause No. 75-2931 in the 171st Judicial District Court of El Paso County, Texas. Relator was ordered to pay $100.00 per month as child support payments. The Relator having made only the payment due in January, 1976, his ex-wife filed a motion asking to have him held in contempt of Court. On July 21, 1976, an order was entered in Cause No. 75-2931 in the 171st Judicial District Court ordering that “DAVID ALVARADO appear in and before the CDR Court in El Paso County, Texas on the 17 day of Aug. 1976, at 12:30 o’clcok P. M., to SHOW CAUSE, why he should not be punished for his conduct in so failing to comply with the orders of this Court, * * *.” Such order was signed by Judge Pena. On the date of the order the Honorable Edwin F. Berliner was Judge of the 171st District Court and Judge Pena was Judge of the Court of Domestic Relations for El Paso County. Although Section 9, Article 2338-21, Tex.Rev.Civ.Stat.Ann., provides that the Judge of the Court of Domestic Relations may sit and hear and determine any case, matter or proceeding pending in any District Court of El Paso County, of which case, matter or proceeding the Court of Domestic Relations would have potential jurisdiction, the order of July 21, 1976, does not reflect that Judge Pena was Judge Presiding, but in fact reflects that he was the Judge of the 171st Judicial District Court.

On August 5, 1976, Judge Berliner in Cause No. 75-2931 in the 171st Judicial District Court entered an order for substituted service under Rule 106, Tex.R.Civ.P., which provided for delivery of a copy of the citation, together with a copy of the petition attached, to anyone over sixteen years of age at the usual place of abode of David Alvarado. Such order was entered pursuant to a motion filed by the ex-wife’s attorney and evidence presented in support of such motion. The officer’s return on the citation reflects that it was executed on the 6th day of August, 1976, “by delivering to David Alvarado by delivering to Juan M. Alvarado by substitute service, each in person a true copy of this notice at 7247 Barker, in the County of El Paso, State of Texas.”

Counsel for Relator filed in Cause No. 75-2931 in the 171st Judicial District Court on August 17,1976, a motion to quash service. The motion was overruled and on that date an order was entered in Cause No. 75-2931 in the Court of Domestic Relations of El Paso County, Texas, which recites:

“The Court does find that the Respondent is in wilful contempt of its Order/Judgment dated the 18 day of Dec. 1975, in that he failed to make payment(s) on the following date(s):
February 1. 1976 $100.00
March 1, 1976 $100.00
Total $200.00
“Respondent is ORDERED to be confined in the El Paso County Jail 60 days.”

Such order is signed by Judge Pena.

A habeas corpus proceeding is a collateral attack upon the order of commitment and the Relator is entitled to be discharged only if “ * * * it affirmatively appears that the judgment ordering his confinement is void, thus depriving the court of jurisdiction and as a result thereof, he is restrained of his liberty without due process of law.” Greenhill and Beirne, Habeas Corpus Proceedings in the Supreme Court of Texas, 1 St. Mary’s L.J. 1, 10 (1969). See also Ex parte Rhodes, 163 Tex. 31, 352 S.W.2d 249 (1961); Ex parte La Roce a, 154 Tex. 618, 282 S.W.2d 700 (1955); Ex parte Tyler, 152 Tex. 602, 261 S.W.2d 833 (1953).

We conclude that the contempt order in this case is void. In the first place, the order providing for the show cause hearing was issued in a cause pending in the 171st Judicial District Court, but was signed neither by the Judge of that Court nor one purporting to preside as Judge in that Court. The contempt order issued in the Court of Domestic Relations of El Paso County, Texas, recites that the Respondent is in wilful contempt of “its Order or Judgment” dated December 18, 1975, when in fact the order providing for child support payments was not issued in the Court of Domestic Relations of El Paso County, Texas, but was in fact issued by the 171st Judicial District Court of El Paso County, Texas.

It has long been held that one Court may not punish a party for contempt in violating the order of another Court. In Ex parte Gonzalez, 111 Tex. 399, 238 S.W. 635 (1922), the Supreme Court discharged the Relator in a habeas corpus proceeding where the 41st Judicial District Court of El Paso County held Mr. Gonzalez in contempt for violating an injunction issued by the 65th Judicial District Court of El Paso County. In reaching such results, the Court said:

“The Sixty-Fifth and Forty-First district courts of El Paso county are separate and distinct courts. The jurisdiction of each is plenary and exclusive as to cases filed therein, until a transfer is made in accordance with the statute. Neither court is the agency of the other for the purpose of inflicting punishment, or for any other purpose. The power to punish for contempt, whether expressly conferred by some positive enactment or regarded as incident to jurisdiction conferred upon the court, exists for the purpose of enabling it to compel due decorum and respect in its presence, and due obedience to its judgments, orders, and process. 6 Ruling Case Law, page 520. Hence one court in no case is authorized to punish contempts of another court. This rule is elementary. * * * ”

An almost identical fact situation existed in Carlson v. Johnson, 327 S.W.2d 704 (Tex.Civ.App.—Houston 1959, no writ), where a Court of Domestic Relations in Harris County held the Relator in contempt for violation of a divorce decree entered in the 80th District Court.

Both of those cases were based upon the provisions of Article 1911, Tex. Rev.Civ.Stat.Ann., which was repealed in 1971 when Article 1911a, Tex.Rev.Civ.Stat. Ann., was enacted. Section 1 of the present Article provides that a Court possesses inherently all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders and provides the power to punish for contempt. The provisions in that statute are with regard to each Court’s own jurisdiction and own lawful orders. We find nothing in the amended statute which gives one Court power to punish for the contempt of another Court’s order and believe that the holdings in the Gonzalez case and the Carlson case are still controlling under the statute as enacted in 1971. Thus, even if the order providing for the show cause hearing was valid, the contempt order was void because the Court of Domestic Relations had no power to punish for the violation of an order or judgment entered by the 171st Judicial District Court. Of course, Judge Pena, as Judge Presiding in the 171st Judicial District Court, would have power to punish for contempt for a violation of a prior order of that Court.

We conclude that the contempt order is void and Relator is ordered discharged. It is unnecessary for us to pass upon the question as to whether or not the citation is defective and the hearing based upon that notice void because the return fails to reflect compliance with the Court’s order requiring service on a person over sixteen years of age at the Relator’s usual place of abode.

David Alvarado, having appeared to question the service of process by his motion to quash, is now before the 171st Judicial District Court for a determination of the motion for contempt. 2 McDonald, Texas Civil Practice 9.05.1 (1970).


author: RAY, Justice.

text:
    In the Matter of the MARRIAGE OF Mildred M. BUTLER and Neal H, Butler.
    No. 8366.
    Court of Civil Appeals of Texas, Texarkana.
    Oct. 19, 1976.
    Rehearing Denied Nov. 9, 1976.

      Charles M. Bleil, Atchley, Russell, Wal-drop & Hlavinka, Texarkana, for appellant.
    William L. Peek, Jr., Hubbard, Patton, Peek, Haltom & Roberts, Texarkana, for appellee.
   RAY, Justice.

This is a domestic relations case. Mildred M. Butler and Neal H. Butler, husband and wife, both petitioned the District Court of Bowie County to grant them a divorce. The cause was tried to the Court without the aid of a jury, and the trial court granted appellant, Mildred M. Butler, a divorce.

Mildred M. Butler appeals from those parts of the judgment related to the division of the estate of the parties.

During his military service, Neal H. Butler was wounded and as a result receives disability pension benefits in the sum of $171.00 per month. He also receives a civil service annuity of $1,490.00 per month. At the time of the divorce hearing, appellee was fifty-five (55) years of age.

In attacks on the division of the estate of the parties in Texas the rule is that the divorce courts are given wide discretion in making a division of the estate of the parties; equal division is not required; upon appeal it is presumed that the trial court exercised its discretion properly, and the cause will be reversed only where there is a clear abuse of discretion. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Bell v. Bell, 513 S.W.2d 20 (Tex.1974); Wilkerson v. Wilkerson, 515 S.W.2d 52 (Tex.Civ.App. Tyler 1974, no writ); Looney v. Looney, 541 S.W.2d 877 (Tex.Civ.App. Beaumont 1976, no writ); Benedict v. Benedict, 542 S.W.2d 692 (Tex.Civ.App. Fort Worth 1976, no writ).

In the exercise of its discretion, the trial court may consider, among other things, the age and physical condition of the parties, their relative need for future support, fault in breaking up the marriage, benefits the innocent spouse would have received from a continuation of the marriage, the size of the estate, and the relative abilities of the parties. Wilkerson v. Wilkerson, supra.

The statute empowering the courts to effect a property division is Section 3.63 of the Texas Family Code which provides the following:

“In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.”

This statute, and its predecessor, Article 4638, Revised Civil Statutes of Texas, have been interpreted to include all the separate personal property of either spouse within the meaning of “estate of the parties” and therefore such property is susceptible to division. Hedtke v. Hedtke, supra; Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App. Houston—1st Dist. 1974, no writ).

The estate subject to division under Section 3.63 includes all property of the parties whether community property or separate property.

“For the purpose of doing equity, the court may award all the personal property to either spouse, and may subject the income, rents or revenues of all real estate, belonging to either or both of the spouses, to the support of either or both of them, or to the education and support of the children.” Hedtke v. Hedtke, supra.

DePuy v. DePuy, 483 S.W.2d 883, 888 (Tex.Civ.App. Corpus Christi 1972, no writ). Also see In Re Marriage of McCurdy, 489 S.W.2d 712 (Tex.Civ.App. Amarillo 1973, writ dism’d); Harrison v. Harrison, 495 B.W.2d 1 (Tex.Civ.App. Tyler 1973, no writ); Medearis v. Medearis, 487 S.W.2d 198 (Tex.Civ.App. Austin 1972, no writ).

The method of dividing property is within the discretion of the court so long as that discretion is reasonably exercised, after taking all relevant property interests into consideration. Reasonover v. Reasonover, 59 S.W.2d 887 (Tex.Civ.App. San Antonio 1933, no writ); Bell v. Bell, supra; Gillis v. Gillis, 435 S.W.2d 171 (Tex.Civ.App. Fort Worth 1968, writ dism’d).

The trial court divided the estate of the parties such that it awarded appellant, Mildred M. Butler, properties worth $77,000.00 and awarded to appellee, Neal H. Butler, properties of the approximate value of $42,-000.00.

The chief complaints of the appellant are that the trial court mischaracterized the veteran’s pension as separate property of appellee and that the trial court only gave the civil service retirement a “vested interest” value of $18,377.00.

It is undisputed that appellant and appellee were married in 1937; that appel-lee received combat wounds in the invasion of Okinawa during World War II for which he receives a pension from the Veteran’s Administration in the sum of $171.00 per month. Such income is the separate property of appellee, Neal H. Butler. Ramsey v. Ramsey, 474 S.W.2d 939 (Tex.Civ.App. Eastland 1971, writ dism’d). Also see Dominey v. Dominey, 481 S.W.2d 473 (Tex.Civ.App. El Paso 1972), cert. denied, 409 U.S. 1028, 93 S.Ct. 462, 34 L.Ed.2d 321 (1972).

The civil service disability retirement pay would ordinarily be community property. In the present case, the following facts are important:

Husband marries appellant_1937
Husband starts civil service work_1942
Husband retires_1973
Divorced _1975

Since the appellee had suffered two massive heart attacks, his resulting disability entitled him to retire at age fifty-three (53) and start drawing his civil service disability retirement in the sum of $1,490.00 each month, out of which he pays income taxes of $225.00 plus hospitalization insurance. Because the appellee started his participation in the plan while he was married to appellant and because the retirement benefits vested during the marriage, the entire monthly sum paid to appellee is community property subject to division by the trial court. Busby v. Busby, 457 S.W.2d 551 (Tex.1970); Dutton, The Wife’s Community Interest In Her Husband’s Qualified Pension or Profit-Sharing Plan, 50 Texas L.Rev. 334, 341 (1972). However, even though the entire retirement pay is community property, the trial court still had the discretion to award it all to the husband. Smith v. Manger, 449 S.W.2d 347 (Tex.Civ.App. San Antonio 1970, no writ).

In the instant case, appellant has failed to demonstrate that the trial court abused its discretion in dividing the estate of the parties. The trial court awarded Mildred M. Butler properties worth $77,-000.00, including the residence of the parties, and awarded Neal H. Butler $42,000.00 worth of properties plus his veteran’s pension which was his separate property, and all of the civil service disability retirement payments which were community property. Appellant insists that the trial court erred in not taking into consideration the present discounted value of the veteran’s pension and the civil service disability retirement. Appellant states that appellee has a life expectancy of twenty-one (21) years beyond his present age of fifty-five (55) at time of trial and that the present value of the veteran’s pension is $21,127.39 and the present value of the civil service disability retirement is $184,092.00. These figures were arrived at from expectancy tables for a man who retires for reasons other than disability. In this case, we have a man who is totally and permanently disabled as a result of two previous massive heart attacks. The veteran’s pension and the civil service benefits terminate at appellee’s death. The value of these benefits was highly speculative in view of the physical condition of Neal H. Butler, and the court so indicated. Mildred M. Butler, age fifty-six (56) at the time of trial, was gainfully employed with take-home pay of $123.00 per week or $6,396.00 per year after taxes and other deductions. The trial court had before it facts sufficient to justify the division of the estate of the parties that it decreed and we have concluded that the trial court did not abuse its discretion in making such division.

The judgment of the trial court is affirmed.

      . Pay for injuries resulting in disability while in the armed forces is a pension, and retirement pay is payment for a status held by the retired serviceman and is an emolument of the office so held. Lemly v. United States, 75 F.Supp. 248, 109 Ct.Cl. 760 (1948). See Footnote 6, Sandbote, Military Retirement Benefits As Community Property: New Rules From The Supreme Court?, 24 Baylor L.Rev. 235 (1972).


author: J. CURTISS BROWN, Chief Justice.

text:
    B. L. C., Appellant, v. STATE of Texas, Appellee.
    No. 1431.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 20, 1976.
    Rehearing Denied Nov. 10, 1976.
    Nancy V. Westerfeld, C. Michael Matkin, Houston, for appellant.
    Max Carlson, Robert D. Ford, Asst. Dist. Attys., Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from an order of a juvenile court waiving its exclusive original jurisdiction and transferring a trial to a district court for criminal proceedings.

The State of Texas filed a motion in the Juvenile Court # 3 in Harris County, pursuant to Tex.Family Code Ann. § 54.02 (1975), requesting the court to waive its jurisdiction over the accused, B.L.C., (appellant) to certify him as an adult and to transfer the proceedings to the Criminal District Court of Harris County. On March 15, 1976, following a three day hearing, an order was signed by the juvenile court judge waiving jurisdiction and transferring B.L.C. to criminal district court. From that order, B.L.C. has appealed.

On the 26th of November 1975 the partially nude body of an eight year old girl was discovered following an all night search. The search had been conducted by sheriff’s deputies and neighboring tenants in the apartment complex where the little girl’s family lived. Among those aiding in the search was the appellant, B.L.C. An autopsy, performed by the Harris County Medical Examiner, revealed that the child died as a result of strangulation and that she had been forceably raped. Shortly after the discovery of the body, B.L.C. and two neighbor boys were taken to the downtown sheriff’s office for witness statements, as they had been among the last to see the little girl alive.

Appellant had been questioned by officers during the early morning hours of November 26 at about 1:00 to 1:30 A.M. and again sometime around 5:30 A.M. He was later taken to the sheriff’s office where he arrived sometime between 9:00 to 10:30 A.M. He was placed under questioning by the officers. During the course of this questioning the officers claimed that appellant began to incriminate himself. This development caused them to give appellant the Miranda warnings. He was then taken before a magistrate and given further warnings as to all of his rights. Appellant disputed the testimony of the officers and the magistrate that he was alone with the magistrate on this occasion. The questioning by the officers thereafter continued and ultimately a written statement was obtained. He was then taken back before the magistrate where, he received the warning as required by Section 51.09 of the Texas Family Code. The magistrate testified that appellant voluntarily and freely signed the confession in the early afternoon. According to the magistrate no officers or prosecuting attorneys were present when the statement was signed.

The officers testified that the appellant was fully advised as to his Fifth Amendment privileges against self-incrimination and of his right to counsel. The magistrate likewise testified to his admonitions and warnings to the juvenile both before the statement was taken and at the time appellant signed it.

Appellant has assigned appropriate points of error basically questioning the constitutionality of the amended statutory guidelines governing the admission of confessions of juveniles. In this connection appellant contends that the refusal of the trial court to put the proper burden of proof on the state was error. Also, appellant claims that the totality of the circumstances involved here, including the detention of the juvenile at the sheriff’s offices under the circumstances, renders the confession inadmissible particularly in the absence of an attorney or other adult interested in the welfare of the minor. Secondly, appellant contends that the juvenile court erred in allowing the statement into evidence and that the transfer order was, therefore, inappropriate. It should be noted that, except for the confession, this record is devoid of any evidence connecting appellant with the commission of the crime. The most that could be said was that appellant was among those known to have last seen the murdered child alive. On the contrary, if the testimony of witnesses called by the state is to be believed, appellant could not have committed the crime in question. A young neighbor boy, called by the state, testified that appellant was in his company over a period of time covering the occasion when the victim was last seen up until she was reported missing by her family. The clothes worn by appellant were delivered to the officers for examination and they were not shown to have indicated any blood or mud stains. The circumstances of the crime are such as to indicate a likelihood that the perpetrator’s clothing might well be stained by reason of the tearing of the victim’s body and the muddy area in which the crime was apparently committed. We do not know whether the state elected not to introduce other evidence connecting appellant with the crime in order to save such evidence for an adjudicatory proceeding. We can only say that appellant’s statements, orally and in writing, are the only basis in this record that would lead the court below to believe that the grand jury would probably indict appellant for the crime in question.

Before enactment of the Family Code in 1973 the courts received confessions of minors without the requirement of the presence of an attorney or an adult interested in the minor’s welfare. Garza v. State, 469 S.W.2d 169 (Tex.Cr.App.1970); Ciulla v. State, 434 S.W.2d 948 (Tex.Civ.App.—Houston [1st Dist.] 1968, no writ); Forder v. State, 456 S.W.2d 378 (Tex.Cr.App.1970); Waiver Of Constitutional Rights By A Juvenile Under The Texas Family Code: The 1975 Amendment To Section 51.09, 17 S.Tex.L.J. 301 (1976). Upon the Family Code becoming effective on September 1, 1973, Section 51.09 required the presence of an attorney before “waiver” of any right granted to the child by the Code or by the Constitution or laws of Texas and of the United States. This requirement, of course, resulted in very few, if any, confessions of minors.

As amended by the 64th Legislature and effective September 1, 1975, Section 51.09 of the Family Code has been modified by the addition of subsection (b):

Notwithstanding any of the provisions of Subsection (a) of this section, the statement of a child is admissible in evidence in any future proceeding concerning the matter about which the statement was given if:
(1) when the child is in a detention facility or other place of confinement or in the custody of an officer, the statement is made in writing and the statement shows that the child has at some time prior to the making thereof received from a magistrate a warning that:
(A) he may remain silent and not make any statement at all and that any statement he makes may be used in evidence against him;
(B) he has the right to have an attorney present to advise him either prior to any questioning or during the questioning;
(C) if he is unable to employ an attorney, he has the right to have an attorney to counsel with him prior to or during any interviews with peace officers or attorneys representing the state;
(D) he has the right to terminate the interview at any time;
(E) if he is 15 years of age or older at the time of the violation of a penal law of the grade of felony the juvenile court may waive its jurisdiction and he may be tried as an adult; and
(F)the statement must be signed in the presence of a magistrate by the child with no law enforcement officer or prosecuting attorney present. The magistrate must be fully convinced that the child understands the nature and contents of the statement and that the child is signing the same voluntarily. If such a statement is taken, the magistrate shall sign a written statement verifying the foregoing requisites have been met.
The child must knowingly, intelligently, and voluntarily waive these rights prior to and during the making of the statement and sign the statement in the presence of a magistrate who must certify that he has examined the child independent of any law enforcement officer or prosecuting attorney and determined that the child understands the nature and contents of the statement and has knowingly, intelligently, and voluntarily waived these rights.
(2) it be made orally and the child makes a statement of facts or circumstances that are found to be true, which conduct tends to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.
(3) the statement was res gestae of the delinquent conduct or the conduct indicating a need for supervision or of the arrest.

The addition of subsection (b) allows a juvenile to waive his rights without presence of counsel or parent, thus changing the previous requirement of the statute. See Lovell v. State, 525 S.W.2d 511, 514 (Tex.Cr.App.1975).

Since this is not an adjudicatory proceeding we do not consider the admissibility of this confession. See In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); West v. United States, 399 F.2d 467 (5th Cir. 1968). However, the purpose of the transfer proceeding authorized in Section 54:02 is not to determine the innocence or guilt of the juvenile but to establish whether the juvenile’s and society’s best interest would be served by maintaining juvenile custody of the child or by transferring him to a criminal district court for adult proceedings. Matter of Honsaker, 539 S.W.2d 198 (Tex.Civ.App.—Dallas 1976). Subsection (f) of Section 54.02 specifically sets forth the matters that the court shall consider in making the determination as to whether to waive its exclusive original jurisdiction and transfer the trial to the appropriate criminal district court. These are:

(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses, against the person;
(2) whether the alleged offense was committed in an aggressive and premeditated manner;
(3) whether there is evidence on which a grand jury may be expected to return an indictment;
(4) the sophistication and maturity of the child;
(5) the record and previous history of the child; and
(6) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.

Clearly paragraphs (1) and (2) are fully satisfied by this record. While we might differ with the conclusion reached by the trial court with respect to paragraphs (4), (5), and (6), we are not warranted in substituting our judgment in this regard for that of the juvenile court. Matter of Honsacker, supra. The admissibility of the confession has no bearing on any of these specific items that the juvenile court was to take into account with the exception of subsection (f)(3): “whether there is evidence on which a grand jury may be expected to return an indictment.” The grand jury is not a proper forum for the determination of admissibility of the confession or the legal question as to whether a conviction could be supported upon the basis of the confession alone without other evidence of guilt. Watson v. State, 154 Tex.Cr.R. 438, 227 S.W.2d 559, 562 (1950); Elliot v. State, 444 S.W.2d 914, 917 (Tex.Cr.App.1969).

Taking into account the nature of these proceedings, the constitutional and other questions concerning this confession so strongly urged by the appellants need not be reached.

Appellant’s points of error having been fully considered and being overruled in these transfer proceedings, the judgment of the trial court is hereby affirmed.

Affirmed.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)


author: NYE, Chief Justice.

text:
    Jay CHESNUT and Elmer Halstead, d/b/a B. C. Oil and Gas Company, Appellants, v. COASTAL OIL AND LAND CORPORATION, Appellee.
    No. 1141.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 21, 1976.
    Rehearing Denied Nov. 18, 1976.

      Michael W. Williams, Corpus Christi, for appellants.
    Ralph J. Graham, Corpus Christi, for ap-pellee.
   OPINION

NYE, Chief Justice.

This is an appeal from the judgment of the trial court finding that there was no violation of the Texas Securities Act in the assignment of an oil, gas and mineral lease. From this adverse judgment the appellants have perfected their appeal to this Court.

In 1974, Billy Williams, a local geologist proposed to appellee Coastal Oil and Land Corporation that they acquire a mineral lease on some 2,000 acres of land in Duval County for the purpose of exploring for natural gas. Mr. Williams’ commission for his work was to be $5.00 per acre and ½2 overriding royalty in any resulting production. Appellee decided that it did not want to lease this large a tract but did agree to lease some 626 of the 2,000 acres from Jovi-ta Montalvo (landowner and lessor) and to pay Williams his agreed commission. There was, however, an understanding that Williams would be entitled to his commission on any additional acreage acquired by ap-pellee.

About this same time, the appellants also became interested in this Duval County oil-gas prospect. After a test well was drilled, logged and tested and the test results from the samplings on the 626 acre lease were found to be positive, the appellants and appellee entered into an agreement whereby the appellee was to acquire an additional 550 acre lease from Montalvo for the joint account of the appellants and appellee. The lease was acquired by appellee who promptly assigned a ¾ interest in the new 550 acre lease to appellants for which they paid $8,765.63. Sometime thereafter, the test well on the 626 acre lease was plugged and abandoned.

In May of 1975, appellants first brought suit to have the assignment of ¾ interest in the 550 acre tract set aside. As grounds for setting aside the conveyance, the appellants plead fraud and misrepresentation. In June of 1975, the appellants filed a separate suit against the same appellee seeking to have the assignment set aside because of the failure of appellee to register as a security dealer under the Texas Securities Act. The appellants sought not only the recovery of the monies originally paid for the assignment, but additional exemplary damages as provided in the Securities Act. Later the appellants consolidated their two causes of action. Thereafter they filed their first amended petition in which they only sought recovery under the Securities Act evidently abandoning their cause of action for fraud and misrepresentation. Before the suits were consolidated, appellants had requested the following admissions from the appellee: .

1) that appellee company had executed the assignment to appellants in consideration of $10.00 and other good and valuable consideration;

2) that appellee was not a registered dealer in securities at the time of the assignment;

3) that the agent of appellee who executed the assignment to appellants was not a registered dealer in securities at the time of the assignment.

These admissions were admitted.

The cause went to trial on March 29, 1976, before the court and at the conclusion of the hearing and presentation of evidence, the trial court ruled for the appellee that the 'appellants take nothing. Pursuant to a request by the appellants, the trial court made the following findings of fact:

1) that prior to December 5, 1974, appellants and appellee agreed that an oil and gas lease would be procured for their joint account on the 550 acres of land owned by Jovita Montalvo;

2) that prior to December 5, 1974, appellants and appellee agreed that appellee would procure for the joint account of the appellants and appellee the lease on the 550 acres of Montalvo’s land; and

3) that appellee on December 5, 1974, procured for the joint account of appellants and appellee an oil and gas lease oh the 550 acres of land owned by Jovita Montalvo.

Through three points of error the appellants have presented essentially one question to this Court: whether or not there was a sale under the Texas Securities Act between the litigants. The appellants assert that since the appellee judicially admitted the conveyance of the assignment for a valuable consideration, there was a “sale” as that term is defined by the securities Act. The appellants’ position is that since there was a sale and the appellee admitted it was not registered under the Securities Act to sell securities, there can be no question of its entitlement to its penalties as prescribed by the Act. Additionally, the appellants point out that a break-down of the amount charged the appellants indicates some $687.50 was charged to them as a brokerage fee. This, they say, is a further indication of a sale of a security.

The appellee does not deny the existence of the assignment for consideration nor the fact that its corporation was not registered to sell securities. The appellee’s position is that this lease was procured for the appellants by the appellee based on a mutual agreement and understanding between the parties. The thrust of this argument is that the appellee was acting only as an agent for the appellants in procuring the lease and at no time did it sell the ¾ interest in the lease to the appellants. The land was acquired initially for both parties and that the subsequent assignment of the ¾ interest was simply a written clarification of the previous agreement between the parties for the acquisition of the lease.

One of the appellants, Jay Chesnut, testified that he was in a joint partnership with Elmer Halstead and that they were doing business as B. C. Oil and Gas Company. He testified that their company entered into an agreement with appellee’s company to lease some land and drill a well. He testified that Dick Barrett was his company’s representative in Duval County and was authorized to set up oil and gas deals. He directed Barrett to acquire the 550 acre lease if the test looked good on the original 626 acre tract. Evidence showed that Barrett authorized the purchase of the interest in the 550 acre tract and that Chesnut had accepted the assignment and recorded it. Barrett testified that the acreage was acquired for the joint account of B. C. Oil and Gas Company consisting of Chesnut, Hal-stead and himself, and Coastal Oil and Land Corporation. He admitted that the appellant company had paid its pro-rata share in acquiring the 550 acre lease in accordance with the agreement between the parties. They agreed to pay and did pay ¾ of the costs of the lease.

It is clear to us that the 550 acre lease in question was procured for appellants by Coastal for the joint account of both parties. Three of the four witnesses who testified all stated that there was a joint venture between the parties for the acquisition of the 626 acre lease through the acquisition of the 550 acre lease. Although the principal members of appellants’ company were not directly involved in this agreement, they were clearly bound to the agreement by the acts of their agent Dick Barrett. This was admitted. We hold that there was ample evidence to support the trial court’s findings that there was a mutual agreement between the parties to procure the 550 acre lease and that the lease was procured by Coastal for the joint account of B. C. and Coastal.

The question again is: did appellee, under these facts, violate the Texas Securities Act? Art. 581-1, et seq., Tex.Rev.Civ. Stat.Ann. (1964). Pertinent selected sections of the Act state in part:

a) that “[t]he term ‘security’ or ‘securities’ shall include . . . any instrument representing any interest in or under an oil, gas or mining lease . . .” Art. 581— 4(A);

b) that “[t]he term ‘dealer’ shall include every person or company . . . who engages in this state ... in selling . any security or securities within this state . . Art. 581 — 1(C);

c) that “[t]he terms ‘sale’ or ‘offer for sale’ or ‘sell’ shall include every disposition, or attempt to dispose of a security for value . . .” Art. 581-4(E);

d) that, with certain exceptions, no person, firm, corporation or dealer may sell any security within the state without first being registered under Art. 581-7 of the act. Art. 481-12;

e)Art. 581-29 makes the sale of a security without being registered a penal offense and Art. 581-33 provides for civil penalties for violation of the act.

The pivotal question is whether or not the assignment of the oil and gas lease was a “sale” as that word is defined in the Act.

A somewhat similar situation was before the Beaumont Court of Civil Appeals in Allen v. Sorenson, 388 S.W.2d 757 (Tex.Civ.App.—Beaumont 1965, writ ref’d n. r. e.). In the Allen case, the suit was brought to recover commissions due under a contract. The contract in question authorized the appellant to act as an agent for the appellees in purchasing oil leases. The question before the court was whether or not the appellant had to be licensed under the Real Estate Act to recover commissions for procuring oil, gas, and mineral leases. In determining this question, the court pointed out that the procuring of oil and gas lease was not a sale of securities. What the court said was that before the Securities Act comes into play, there must be a “sale” of a security.

The Supreme Court has twice held that one who is simply buying or procuring an oil and gas lease for another is not required to be registered under the Securities Act. See Herren v. Hollingsworth, 140 Tex. 263, 167 S.W.2d 735 (1943); Fowler v. Hults, 138 Tex. 636, 161 S.W.2d 478 (1942). See also Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704 (1956); Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146 (1967). In an earlier case of Culver v. Cockburn, 127 S.W.2d 328 (Tex.Civ.App.—Galveston 1939, writ dism’d jdgmt. cor.), one of the parties received a 10% commission for the procuring of the lease. The court did not believe that this was indicative of a sale under the Securities Act.

There appears to be some argument for the fact that the 1941 Amendments to Art. 600a § 36 (now Art. 581-34), requires all provisions of the Act to apply to both purchasers and sellers. Art. 581-34 states that no person or company may maintain an action for collection of commission for services in selling or purchasing securities without first proving they are licensed under the Act. This amendment, however, has been narrowly construed to apply only to a suit to recover commissions under 600a § 36 or Art. 581-34. See Maddox v. Flato, 423 S.W.2d 371 (Tex.Civ.App.—Corpus Christi 1967, writ ref’d n. r. e.). In Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146 (1947), the Supreme Court stated that the 1941 amendments to the Act did not change the general purposes of the Act. See Dunnam v. Dillingham, 345 S.W.2d 314 (Tex.Civ.App.—Austin 1961, no writ). We hold that the provisions of Art. 581-34 have no application to the fact situation here in controversy-

When Coastal procured the 550 acre lease, appellants already had equitable title to ¾ of the 550 acres based on the prior agreement between the parties. Coastal simply paid the entire price to Jovita Mon-talvo to firm up the deal. Coastal did not turn around and then sell appellants’ ¾ of the lease. What they did was assign to appellants the legal title to ¾ of the lease upon their payment of ¾ of the purchase price of the entire lease. There was no sale involved, only a repayment based on the agreement between the parties. The wording in the assignment “. . . for $10 and other valuable consideration” was simply the language necessary to show a transfer of an interest in real property for a valuable consideration. Appellants’ points of error 1 and 2 are overruled.

In his third point of error, the appellants complain that the trial court erred in impliedly concluding that there was some type of exemption of appellee’s action from the Securities Act. Evidently, the appellant completely misunderstood the trial court’s judgment. Appellee did not plead any exemption and the trial court did not find any exemptions to the Act. What the trial court found was that there was “No Sale” of a security under the Act. Therefore, the provisions of the Act never came into play under the facts of this case. Appellants’ third point of error is overruled.

The judgment of the trial court is AFFIRMED.


author: HALL, Justice.

text:
    Henry Robertson WHITESIDE, II, Appellant, v. Jean Morris DRESSER, Appellee.
    No. 5634.
    Court of Civil Appeals of Texas, Waco.
    Oct. 21, 1976.
    Rehearings Denied Nov. 18, 1976.

      Carl Robin Teague, Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc., San Antonio, for appellant.
    John N. McCamish, Jr., Charles J. Fitzpatrick, Matthews, Nowlin, MacFarlane & Barrett, San Antonio, for appellee.
   HALL, Justice.

The parties to this suit were formerly husband and wife. When they were divorced in 1972, the custody of their child was awarded to the mother, and the father was ordered to pay child support. The mother brought this suit in 1975 to terminate the parent-child relationship between the father and the child. She alleged that the father had failed to support the child in accordance with his ability during a period of one year ending within six months of the date she filed suit, and pleaded specific facts to support this contention. She alleged, also, that the termination would be in the best interest of the child.

The case was tried to a jury. The two issues submitted to the jury dealt only with the question of whether the father failed to support the child in accordance with his ability. The jury was not asked whether the termination of the father’s parental rights would be in the best interest of the child. In its answers to the two issues, the jury made fact-findings which support the determination that the father failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the mother’s petition. Judgment was rendered on the verdict terminating the parent-child relationship between the father and the child. In the judgment, the court expressly found that the termination is in the best interest of the child.

The evidence does not conclusively establish that the termination is in the best interest of the child. The father objected to the failure of the court to submit this question to the jury. The objection was overruled on the theory advanced by the mother that this is a question for the court only. The father assigns error to this ruling.

In its pertinent parts, V.T.C.A., Family Code § 15.02, provides, “A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that: (1) the parent has . (F) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition; . . . and in addition, the court further finds that (2) termination is in the best interest of the child.” Both of these elements are essential to the judgment of termination. Wiley v. Spratlin, 543 S.W.2d 349 (Tex.Sup.1976). Both are fact questions. Under the record before us, the father was entitled to have both submitted to the jury and the court erred in refusing to do so.

The father’s remaining points and contentions are overruled.

The judgment is reversed, and this cause is remanded for another trial.


author: BISSETT, Justice.

text:
    Margaret Joe Ballenger CLUCK, Appellant, v. Joe Davis BALLENGER et al., Appellees.
    No. 1106.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 21, 1976.
    Rehearing Denied Nov. 24, 1976.

      Harry L. Hall, Charles C. Murray, Atlas, Hall, Schwarz, Mills, Gurwitz & Bland, McAllen, for appellant.
    David L. Orr, McGinnis, Lochridge & Kil-gore, Austin, Orrin Johnson, Johnson & Davis, Harlingen, for appellees.
   OPINION

BISSETT, Justice.

The issue presented by this appeal is whether the district court had jurisdiction of an appeal by certiorari from the probate court. On November 23, 1971, Joe Davis •Ballenger, et al (the sole surviving children of Joe G. Ballenger, deceased), appellees in this appeal, filed an application to probate an instrument, dated March 17, 1964, purporting to be the last will and testament of Joe G. Ballenger, deceased. The instrument was duly admitted to probate by order of the County Court of Cameron County, Texas, sitting in probate, on December 14,1971. On October 5,1973, Margaret Joe Ballenger Cluck (the only child of a deceased son of Joe G. Ballenger, deceased), appellant in this appeal, filed a contest in the probate court to set aside the probate of the March 17, 1964 will. Following a jury trial, judgment was rendered on June 28, 1974, which set aside the probate of the March 17, 1964 will and declared the will to be void.

Thereafter, on July 2, 1974, the appellees filed an application for certiorari in the District Court of Cameron County, Texas, wherein they sought to revise and correct the order made by the probate court on June 28,1964. The appellant filed a plea to the jurisdiction, wherein she pled that the District Court no longer had jurisdiction to hear and determine appeals in probate matters. The plea was denied. Certiorari was granted, and the cause was set for trial. The appellant then filed a petition for mandamus in the Supreme Court to require the District Judge to dismiss the appellees’ application for a writ of certiorari. The petition was denied on April 16, 1975. See Cluck v. Hester, 521 S.W.2d 845 (Tex.Sup.1975).

On October 20, 1975, the appellant filed an amended answer in the district court, where, among other defenses, she again pled that the district court was without jurisdiction of the certiorari proceedings because of the repeal by the Legislature of Tex.Prob.Code Ann. § 30 and Tex.Rev.Civ. Stat.Ann. art. 1907, effective June 21, 1975. The plea was denied and the cause proceeded to trial before the court. Judgment was rendered on December 11, 1975. In that judgment, the order of the probate court of June 28,1974 was set aside and the order of the probate court of December 14, 1971, which admitted the March 14, 1964 will to probate as the last will and testament of Joe G. Ballenger, Deceased, was reinstated. Margaret Joe Ballenger Cluck has duly and timely perfected an appeal from the judgment of the district court.

After the approval of the amendment to Article V, Sec. 8 of the Texas Constitution, adopted November 8, 1973, and the enactment of H.B. 1398, Acts 1973, 63rd Legislature, ch. 610, p. 1684, which amended Tex. Prob. Code Ann. § 5 and § 21, effective November 8, 1973, the right of appeal under the provisions of Tex. Prob. Code Ann. § 28, from the probate court to the district court was abolished. Our Supreme Court, in Cluck v. Hester, supra, while holding that “the 1973 amendment of Section 5 is irreconcilable with Section 28 and that the right of appeal from probate court to district court no longer exists”, also held that the “elimination of appeal in 1973 cannot be said to have necessarily eliminated certiorari”, and that Tex. Prob. Code Ann. § 30 was not affected by the 1973 amendments.

The 64th Legislature, by the passage of S.B. 534, Acts 1975, Regular Session, ch. 701, p. 2195, effective June 21, 1975, expressly repealed Tex. Prob. Code Ann. § 30 and Tex.Rev.Civ.Stat.Ann. art. 1907. The appellant contends that the repeal of Section 30 of the Code prior to the rendition of the judgment here appealed deprived the District Court of Cameron County of all appellate jurisdiction in probate proceedings, and the District Court’s only jurisdiction in this case was to dismiss the certiora-ri proceedings for want of jurisdiction. The appellees assert that the Act did not deprive the District Court of Cameron County of jurisdiction to render the judgment that was signed on December 11, 1975, because the Act did not affect cases (such as this ease) where the appeal by certiorari had been perfected prior to June 21, 1975, the effective date of the Act.

This case is controlled by the rule of Atkins v. Rayburn, 506 S.W.2d 208 (Tex.Sup.1974). There, Jean Small appealed five orders of the probate court to the district court. The appeals were perfected in accordance with the provisions of Tex. Prob. Code Ann. § 28, and were perfected prior to the effective date of the 1973 constitutional and statutory amendments. Jerry K. Atkins sought a dismissal on the ground that the amendments of 1973 deprived the district court of jurisdiction of the appeals filed by Jean Small. The motion to dismiss for want of jurisdiction was denied by the district judge, and Jerry K. Atkins, the relator in the Supreme Court, instituted mandamus proceedings in the district court to compel the district judge to dismiss the probate appeals filed by Jean Small, the respondent. Leave to file a petition for a writ of mandamus was denied. The Supreme Court held:

“ . . . Mrs. Small perfected all of her appeals from the probate court prior to the effective date of the new amendment; therefore, her appeals to the district court are not affected by the amendment. See Gulf Oil Corporation v. Outlaw, 136 Tex. 281, 150 S.W.2d 777 (1941).

That rule applies to the case at bar. The appeal by certiorari proceedings had been perfected by the appellees prior to the effective date of the repeal of Tex. Prob. Code Ann. § 30; therefore, the certiorari proceedings were not affected by the repeal. The District Court of Cameron County had jurisdiction of the appellees’ appeal by certiorari on December 11, 1975, when the judgment which had been appealed was signed and rendered. Any other holding would put this Court in conflict with the holding of the Supreme Court in Atkins v. Rayburn, supra.

We have carefully considered all of the points of error brought forward by the appellant. They are all overruled.

The judgment of the trial court is AFFIRMED.


author: ELLIS, Chief Justice.

text:
    AMERICAN TRANSFER AND STORAGE COMPANY, Appellant, v. Ernie C. REICHLEY, Appellee.
    No. 8707.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 25, 1976.
    Rehearing Denied Nov. 23, 1976.
    Golden, Potts, Boeekman & Wilson, Johnson, Guthrie, Billings, Nash & Shanklin, Robert Lee Guthrie, Dallas, for appellant.
    ■ Smith & Smith, Mickey J. Blanks, Lubbock, for appellee.
   ELLIS, Chief Justice.

American Transfer and Storage Company” has appealed from an order of a district court in Lubbock County, Texas, overruling its plea of privilege to be sued in Dallas County. The principal case involves allegations of a wrongful sale of E. C. Reichley’s personal property, but this appeal concerns only the correctness of the trial court’s action in maintaining venue in Lubbock County-

The record developed in the trial court reveals that Reichley, the plaintiff, was employed by Guerdon Industries in 1973. In that year Reichley’s employers required him to move from Lubbock, Texas. Because of circumstances at Guerdon Industries, however, he was not able to ascertain exactly where he would be relocated. Prior to making final arrangements for moving his household goods, Reichley obtained price estimates from several moving companies. Among those supplying estimates was Larry Winton, a representative of American Transfer and Storage, the defendant. Before Winton quoted a price, Reichley explained to him that he did not know where he would be moving and that his goods would need to be stored for up to one year. Reichley also explained that Guerdon Industries would pay for the move and storage charges. Reichley testified that he was told by Winton that Guerdon would be billed for both the moving charges and the storage costs after the move was completed. Sometime later, Reichley telephoned Win-ton and informed him that his company had been selected for the job. Winton agreed, and in September, 1973, Reichley’s belongings were taken from his house and stored by the defendant in its warehouse in Lubbock, Texas.

During the months that Reichley’s goods were in its warehouse, the defendant mailed him statements showing accrued storage charges. The defendant did not attempt to collect these charges from Guer-don Industries and Reichley never paid them. After four or five months, the defendant began sending Reichley letters and telephoning him to demand payment. The charges remained unpaid until April of 1974 when the defendant sold Reichley’s goods to satisfy its storage charges. The goods were sold to Darrell Boepple, the defendant’s manager, for $963.08, the amount of the accrued charges, plus one dollar. For that price Boepple bought “several bedrooms of furniture, contents of [a] living room, den, kitchen and other rooms.”

After he learned of the sale, Reichley instituted this lawsuit against Boepple and American Transfer and Storage. His petition alleged that the defendants had breached an oral contract and committed fraud and conversion. American Transfer and Storage Company duly filed its plea of privilege to be sued in Dallas County. In his controverting affidavit, Reichley pleaded specifically that venue was proper in Lubbock County under the provisions of Tex.Rev.Civ.Stat.Ann. art. 1995, subd. 23. The trial court overruled the defendant’s plea of privilege and this appeal was taken from that order.

In four points of error the defendant has contended that the judgment of the trial court overruling defendant’s plea of privilege cannot be sustained under the provisions of subdivisions 23, 4, 7 or 9a of article 1995. The basic contentions of both parties relate to the existence, validity and enforceability of the oral contract alleged by Reich-ley to exist between him and the defendant.

Findings of fact and conclusions of law were neither requested nor filed. As a consequence, this court must affirm the trial court if there is evidence in the record which supports any lawful theory raised by the pleadings. Loomis v. Sharp, 519 S.W.2d 955 (Tex.Civ.App.—Texarkana 1975, writ dism’d). More important, we must presume that the trial court found all essential facts in favor of Reichley and consistent with its order. Jordan v. Rule, 520 S.W.2d 463 (Tex.Civ.App.—Houston [1st. Dist.] 1975, no writ); Steinberg-Maas Co., Inc. v. Northcutt, 121 S.W.2d 1021 (Tex.Civ.App.—Eastland 1938, no writ). To avoid the effect of this presumption, the defendant has the burden of demonstrating that it was entitled to be sued in Dallas County as a matter of law. See LaSorsa v. Burr, 516 S.W.2d 265 (Tex.Civ.App.—Houston [14th Dist.] 1974, no writ) and cases cited therein.

In attempting to meet its burden on appeal, the defendant has pointed out that Reiehley relied only upon subdivision 23 of article 1995 when he filed his controverting affidavit. The pertinent portion of that subdivision provides:

23. Corporations and associations.— Suits against a private corporation, association, or joint stock company may be brought in . the county in which the cause of action or part thereof arose

The defendant has not disputed that it is a private corporation within the meaning of subdivision 23. Rather, the defendant has contended that Reiehley has no “cause of action” which arose against it in Lubbock County.

For a “cause of action,” Reiehley has relied upon his allegations that the defendant breached an oral contract made with him. Reiehley has argued that the defendant, acting through Winton, contracted to store his belongings for up to one year, move them when and where he requested, and bill the storage and moving charges to Guerdon Industries upon completion of the move. According to Reiehley, the sale of his property before a year expired constituted a breach of that oral contract.

The existence vel non of an oral contract is a question of fact. Maddox Motor Co. v. Ford Motor Co., 23 S.W.2d 333 (Tex.Com.App.1930, holding approved); Allen v. Bryant, 470 S.W.2d 913 (Tex.Civ.App.—Amarillo 1971, writ ref’d n. r. e.). An examination of the record discloses that evidence was presented and admitted from which the trial court could have concluded that an oral contract such as Reiehley alleged did in fact exist. We must presume that such a finding was made and we cannot overturn it because it is supported in the evidence. Jordan v. Rule, supra.

The defendant, however, has argued strenuously that a document in evidence denominated “Combined Uniform Household Goods Bill of Lading and Freight Bill” represented the only contract between the parties. Reiehley, however, neither signed the document nor received a copy of it. Apparently, Reiehley never saw the document until this lawsuit was commenced. Conflicting with this evidence, however, is Reichley’s testimony bearing on the existence and terms of the oral contract. Win-ton’s testimony is consistent with that of Reiehley. There is ample evidence to support the trial court’s implied finding that an oral contract existed between the parties.

As an alternative to its “no oral contract” argument, the defendant has argued that Winton was not acting as the defendant’s agent when the oral contract was made. The defendant has pointed out that Interstate Commerce Commission rules prohibit the defendant from shipping interstate. Because of these rules, the defendant has arranged for another corporation — Aero Mayflower — to handle its interstate shipments. When a customer requests an interstate shipment, the defendant’s agents double as Aero Mayflower agents and arrange for. Aero Mayflower to make the shipment. The defendant has argued that because Winton and Reiehley settled upon Little Rock, Arkansas as the probable destination of Reichley’s goods, Winton was acting as Aero Mayflower’s agent — not the defendant’s.

The question of agency is one of fact. Foundation Reserve Ins. Co. Inc. v. Wesson, 447 S.W.2d 436 (Tex.Civ.App.—Dallas 1969, writ ref’d). There is evidence in the record which would have supported a finding that Winton was the agent of Aero Mayflower, the defendant, or both companies when the oral contract was made. The trial court impliedly found that he acted as the defendant’s agent and we will defer to that finding.

Apart from the agency issue, the defendant has attacked the trial court’s judgment on yet another ground. Section 7.206 of the Texas Business and Commerce Code authorizes a warehouse to sell stored goods if “no period [of storage] is fixed.” According to the defendant, the oral contract did not fix a period of storage and therefore the sale was not wrongful. Reichley, however, testified that Winton agreed to store the goods for a period up to one year. The trial court impliedly found this to be true and therefore a period of storage was fixed. Accordingly, Section 7.206 gave the defendant no right to sell Reichley’s goods until one year had expired.

Finally, the defendant has argued that Reichley is barred from recovery for breach of the oral contract under the statute of frauds. The argument is that the contract required Guerdon Industries to answer for Reichley’s debt and such contracts are not enforceable if not written. We note, however, that the defendant did not plead the statute of frauds as an affirmative defense prior to the hearing on the plea of privilege. Moreover, it has been held that “The Statute of Frauds is an affirmative defense not available on a plea of privilege hearing.” Lebow v. Weiner, 420 S.W.2d 755 (Tex.Civ.App.—Houston [14th Dist.] 1967, no writ). Under the circumstances of this case the defendant is not entitled to raise the statute of frauds as an affirmative defense in this appeal of the venue order. See Tex.R.Civ.P. 94; Christian v. First Nat’l Bank, 531 S.W.2d 832 (Tex.Civ.App.—Fort Worth 1975, writ ref’d n. r. e.); Van Huss v. Buchanan, 508 S.W.2d 412 (Tex.Civ.App.—Fort Worth 1974, writ dism’d); Lebow v. Weiner, supra.

For the reasons above stated, it is our opinion that venue in this cause is sustainable in Lubbock County under subdivision 23. Accordingly, we overruled appellant’s first point of error. This holding is dispositive of this appeal and precludes our reaching the remaining points raised by the appellant.

The judgment of the trial court is affirmed.