text:
    STATE of Tennessee ex rel. Robert F. SMITH, Commissioner of Transportation, Petitioner-Plaintiff, v. J. H. OVERSTREET, Respondent-Defendant.
    Supreme Court of Tennessee.
    Jan. 15, 1979.
    William M. Leech, Jr., Atty. Gen., Donald L. Corlew, Asst. Atty. Gen., Nashville, J. H. Reneau, III, Celina, Sp. Counsel, for petitioner-plaintiff.
    T. Eugene Jared, Cookeville, for respondent-defendant.
   OPINION

HARBISON, Justice.

This is the second appeal of a condemnation proceeding occasioned by a highway project. The previous opinion of this Court is reported, State ex rel. Smith v. Overstreet, 533 S.W.2d 283 (Tenn.1976). In it the factual background and the basic claims of the parties are discussed in some detail. These need not be repeated here.

Pursuant to that opinion, the case was remanded for a new trial limited to the single issue of moving expenses, past or future, made necessary by the taking of a six-acre tract upon which respondent was conducting a sawmill and lumber business. All other damages awarded to respondent in the first trial were affirmed.

Upon retrial, the jury awarded respondent the sum of $66,572 for expenses in removing his sawmill, its equipment and a large inventory of lumber stored on the premises, together with the estimated cost of reassembling, reconnecting and installing the mill in a new location, pursuant to T.C.A. § 23-1414.

Of the foregoing amount, $24,344 represented past or estimated future costs in connection with the removal and reinstallation of the milling machinery, stakes and timbers used in stacking the inventory for drying, and sums expended by respondent in removing a portion of the inventory off the condemned premises onto adjacent property. The latter item amounted to $2500. Its propriety was not contested by the condemnor, and we assume that it was properly considered by the jury.

In its assignments of error, petitioner contests several items included in the award for removal of equipment. In particular it attacks the credibility of respondent and his witnesses as to the estimated costs of reinstalling the sawmill at another location. Respondent vacated the condemned site early in 1972. Although he operated another sawmill elsewhere, he had not relocated or reinstalled the mill in question by the time of the second trial, which occurred in September 1976. Petitioner insists that the lapse of such a period of time, together with alleged poor storage and maintenance of the equipment on a farm owned by the respondent, demonstrates that respondent had no intention of reinstalling or reconnecting the mill, and that these estimated future expenses were not shown to be reasonably necessary within the purview of T.C.A. § 23-1414.

We are of the opinion that these assignments of error are not well taken. The credibility of the witnesses and the inferences to be drawn from their testimony were proper issues for resolution by the jury. Accordingly we affirm the award of $24,344 and overrule all assignments of error addressed to the items of damages embraced in that portion of the verdict.

The remainder of the verdict, $42,228, represented alleged freight and shipping costs incurred by respondent in connection with the sale and liquidation of his inventory of seasoned and green lumber stored on the condemned site. It is insisted by respondent that this item represented necessary costs of removal of the inventory and was recoverable as moving expenses under T.C.A. § 23-1414.

In the previous opinion of the Court, it was pointed out that respondent did not in fact remove the major portion of his inventory to another site, but rather sold it to other persons in the lumber business. In the first trial, he introduced estimates of the costs of removing the inventory, but the Court held that such costs could not be allowed on the basis of estimates unless they had in fact been incurred. In this case, all removal had occurred before the first trial, so that there was no question as to estimated future costs insofar as inventory was concerned. In the previous opinion, the Court said:

“In the present case, respondent offered testimony as to what it would have cost to remove the inventory on hand at the date of the taking, but at the same time his proof showed that he did not incur these expenses, except for approximately $2500, expended in removing the remnants of the inventory ‘right at the last.’ One of the purchasers of the inventory did testify that respondent removed some of the lumber which was purchased by this witness, but the amount of expense incurred by the respondent in doing so is not shown in the record. Had this been shown, or if it can be shown at the new trial, this item of expense would be recoverable, in our opinion, under the provisions of T.C.A. § 23-1414.” 533 S.W.2d at 289.

The trial court was held to be in error in permitting the jury to consider “estimated removal costs which were never actually incurred and which in fact will never be incurred.” In addition the Court said:

“Further, the trial court should not have permitted introduction of testimony as to the alleged loss of profits from the liquidation of the inventory. No evidence along either of these lines will be permitted upon the retrial of this case. Respondent should, however, be permitted to prove the amount actually expended by him in the removal of inventory, including that sold to the purchasers, if such evidence is available and the amounts can reasonably be ascertained.” 533 S.W.2d at 290.

Upon retrial of the case, however, it again conclusively appeared that the respondent did not in fact remove anything but the remnants of his inventory to adjacent property. Aside from these remnants, he sold approximately two percent on the site, and shipped the remainder to purchasers at distant points, much of it going to a single customer in Bristol, Tennessee, a distance of some three hundred miles. Other portions were shipped to customers in North Carolina, South Carolina and Virginia. The record of the first trial was silent as to the terms of sale. At retrial, it was shown that under all of the sales contracts respondent paid the shipping costs, the sales being “F.O.B. Purchaser’s Destination.” These were the usual and customary terms upon which respondent sold his lumber, the testimony being clear that he always bore the expenses of shipping in connection with regular sales. The purchaser from Bristol testified that his company never absorbed freight costs in buying from any independent mill operator such as respondent. While respondent insisted that these were “forced” sales, and that he was required to accept a reduced price, nevertheless freight and shipping costs were a regular and necessary expense in the conduct of his business.

At the time of the taking involved in this case, T.C.A. § 23-1414 authorized recovery for removal and drayage up to a distance of ten miles from the condemned premises. Accordingly, respondent testified that the sum claimed by him as moving expenses in connection with the major portion of his inventory represented only that amount which it would have cost to transport the inventory for ten miles, although in fact most of it was shipped a much greater distance.

As pointed out in the first opinion of this Court, prior to 1951 there was no provision in the state statutes for the cost of removal of personal property or fixtures in condemnation proceedings. In numerous cases decided prior to that date, it had been held that the constitutional requirements of just compensation to a property owner did not embrace damages for such removal or loss of value in connection therewith. Cases decided since the adoption of T.C.A. § 23-1414 have held that not all pecuniary losses suffered by a landowner from eminent domain are compensable, but only those authorized by the statutory provisions. See 533 S.W.2d at 287-288.

After discussion of the authorities, the Court stated:

“It is apparent from these cases that the Tennessee statute permits recovery only of moving expenses which have actually been incurred at the date of the trial or which can be shown by testimony to be reasonably necessary in the future and which can be accurately estimated by such testimony.” 533 S.W.2d at 289.

In our opinion, the shipping and freight costs, estimated at $42,228, which respondent claims under the record of the second trial, were not demonstrated to be moving expenses falling within the purview of T.C.A. § 23-1414, and the jury should not have been allowed to consider them as such. These were normal operating expenses incurred in the sale of merchandise through regular trade channels. Although hypothetically tailored by the respondent and his witnesses to the ten-mile distance prescribed by statute, these do not represent extra-ordinary removal costs as were contemplated by the legislature. Respondent elected to liquidate most of his inventory by sales rather than to remove it to another site. He contracted with the purchasers to pay the shipping costs, as was normal and customary in the business. What his actual shipping costs were is not revealed in the record. Respondent has attempted to shift an estimated portion of these to the con-demnor as statutory “moving expenses,” or as an approximate equivalent thereof. In our opinion the terms of the statute do not authorize reimbursement under these circumstances.

Accordingly the assignments of error with respect to estimated costs for removal of inventory are sustained, and the amount of $42,228 awarded by the jury will be set aside and disallowed.

The judgment to respondent will be modified and fixed at $24,344, together with interest from the date of taking. Costs incident to this appeal will be taxed equally to the parties, and costs in the trial court will remain as assessed there. The cause is remanded to the trial court for payment of the judgment and for such other proceedings as may be necessary.

HENRY, C. J., COOPER and BROCK, JJ., and HUMPHREYS, Special Justice, concur.

      . In his reply brief counsel for respondent states that this item was omitted from a list or computation prepared for exhibition to the jurors, but there was testimony concerning the item in the record.

      . Respondent testified that his daughter kept his books. Apparently he also employed an accountant. He said that detailed records existed as to his expenses for labor, machinery, etc. However, he produced only rough estimates and notes prepared for trial in support of all of the damages which he claimed, despite the fact that a substantial portion of these consisted of historical, not future, costs and expenses. No actual shipping documents, invoices or primary records of any sort were introduced. Neither respondent’s daughter nor his accountant testified.


source: Caselaw Access Project

author: MATHERNE, Judge. SCOTT, Special Judge, NEARN, Judge,

license: Public Domain

text:
    Robert F. SMITH, Commissioner of Transportation of the State of Tennessee, Appellant-Appellee, v. Joe V. WILLIAMS, Martha Frances Moore Williams, Robert S. Williams, Mary Williams, Gertrude W. Gaston, Marion Gaston, Margaret W. Robbins, Frank M. Robbins, Jr., City of Chattanooga and Hamilton County, Tennessee, Appellants-Appellees.
    Court of Appeals of Tennessee, Western Section.
    Feb. 2, 1978.
    Rehearing Denied March 9, 1978.
    Certiorari Denied by Supreme Court Dec. 29, 1978.

      Robert J. Ames, Asst. Atty. Gen., Carlos C. Smith, Chattanooga, for the State of Tennessee, for appellant-appellee Smith.
    Joe V. Williams, Jr., Chattanooga, for appellants-appellees Williams, et al.
   MATHERNE, Judge.

In this condemnation lawsuit the determinative issues on appeal are whether the trial judge can of his own motion in a civil law case impanel a jury to try the issues and whether a jury so impaneled is an “advisory jury.”

By plea filed on April 17, 1974, the defendants demanded a jury to hear this lawsuit. Thereafter the parties presented to the trial court an agreed order wherein all parties waived a jury trial and agreed that the lawsuit would be tried before the judge without a jury. The trial judge refused to sign the order and impaneled a jury to hear the issues.

The record does not reveal an objection or exception by the defendants to the ruling of the trial judge that the issues would be submitted to a jury. We hold, however, that under Rule 46, Tennessee Rules of Civil Procedure, an objection at that point was not necessary. At the time the motion was tendered and the action of the trial judge was sought, both parties made known to the judge the action desired on the motion, namely, to waive the jury. The defendants made this ruling by the trial judge the basis of Ground VIII of their Motion for New Trial and Assignment of Error No. 1 before this Court. We, therefore, hold that the claimed error is properly before this Court for review.

In his final Memorandum and Order the trial judge stated:

(T)he Court makes reference to the fact that on October 24, 1975, all parties submitted a proposed agreed order attempting to waive trial by jury, which proposed order is attached hereto and made a part thereof. However, the Court was of the opinion that a jury should be empaneled to hear this cause and would not enter said proposed order under the authority of Rule 39 of the Tennessee Rules of Civil Procedure. While the Court has not referred to the jury which tried this cause as an “advisory jury,” it being the Court’s intention not to (in) any way impair any party’s right to appeal, the Court is aware of the language contained in Rules 39.02 and 39.03 of the Tennessee Rules of Civil Procedure. Further, the Court is of the firm opinion, as thirteenth juror, that either a new trial should be granted or the additur should be accepted and paid.

Accordingly, it is therefore Ordered, Adjudged and Decreed that the motion for a new trial as amended be and the same hereby is overruled; however, the Court, as thirteenth juror, suggests an additur . . . the Court being of the firm opinion that the verdict of the jury was inadequate and that, if the Nine Thousand Dollars ($9,000.00) is not paid as an additur as suggested, a new trial should be granted. (Emphases added)

The trial judge apparently misinterpreted Rule 39.02. That rule places within the discretion of the trial judge, upon motion by a party, the power to grant a jury trial even though the moving party had not made a timely demand for a jury as required by Rule 38.

Trial by jury had been demanded by the defendants in accordance with Rule 38.02. Where the demand for jury trial has been properly made the trial of all issues so demanded shall be by jury, “unless (a) the parties or their attorneys of record, by written stipulation filed with the court or by oral stipulation made in open court and entered [of] record, consent to trial by the court sitting without a jury . . . .” Rule 39.01. In this lawsuit the parties, after a demand for trial by jury, did so consent to trial by the court sitting without a jury.

In situations which give a party the right to trial by jury, the Tennessee Rules of Civil Procedure do not give the trial judge the authority to force a jury upon the parties. The right to demand a jury is given to the parties, Rules 38.02, 38.03; the waiver of a jury may be effected by the failure of a party to demand, Rule 38.05; the right to waive a jury previously demanded may be accomplished only by the consent of all parties as to whom issues have been joined, Rule 38.05; when a jury is properly demanded the trial will be by jury unless consent to a non-jury trial be made by all parties and entered of record, Rule 39.01; where a party who has .not timely demanded a jury makes a motion for a jury trial, the trial judge in his discretion may grant that party a jury trial, Rule 39.02. There is no provision which permits the trial judge to impanel a jury on his own motion; there must be a demand by a party. Compare: 5 Moore’s Federal Practice (2nd Ed.) § 39.08; Hargrove v. American Central Ins. Co., 125 F.2d 225 (10th Cir. 1942); Firemen’s Insurance Co. of Newark v. Smith, 180 F.2d 371 (8th Cir. 1950). See also the cases annotated at 6 A.L.R. Federal 217, 230-232.

The leading case to the contrary seems to be United Press Associations v. Charles, 245 F.2d 21, 17 Alaska 46 (9th Cir. 1957), cert. denied, 354 U.S. 925, 77 S.Ct. 1378, 1 L.Ed.2d 1435, wherein the parties failed to demand trial by jury within the time allowed by Rule 38. Thereafter the defendant filed a motion for a jury trial, which was denied. Several months later on the day of trial, the trial judge announced that he would impanel a jury to hear the case. The plaintiff objected, but proceeded to trial. The court reasoned that the plaintiff should have refused to go to trial before a jury, suffer judgment against it for failure to prosecute and appeal therefrom. By going to trial the court reasoned that the plaintiff acquiesced in the jury and waived any right it might have had to object. Under the court’s holding, however, that course of action by the plaintiff would have been futile on appeal because the court further buttressed its decision with the following language:

In any event, by definition of the Rule, the judge had power to grant trial by jury when Charles (defendant) made a motion therefor. It can hardly be contended the judge lost jurisdiction when the motion by Charles for jury trial was denied. Although the latter was not insisting upon jury trial, he never withdrew the motion. The denial did not change the record. The denial was not unchangeable as a decree of Rhadamanthus. The judge could have set aside the denial and granted a jury on the eve of [the] trial. But, it is objected, he did not so set aside the denial, but granted jury trial sua sponte. If the judge had jurisdiction to set aside the order, he had jurisdiction to grant trial by jury.

In the quoted portion of the opinion the court seems to have based its decision upon the fact that a motion for trial by jury was made by a party, and, therefore, the judge was given jurisdiction to grant the request even though it had been previously denied. Considering the entire opinion in United Press Associations, supra, along with the rather strong dissent, we can not accept that case as authority for the proposition that the court in the instant lawsuit could force the parties to trial by jury. Here we have a timely consent by all parties that the previously demanded trial by jury be waived. That request was in accordance with Rule 39.01(a). The trial judge erred in his failure to honor that consent to a non-jury trial.

The trial judge by final Memorandum and Order seems to indicate that he impaneled an advisory jury as allowed by Rule 39.03. That Rule provides as follows: “Nothing in this rule shall impair the right of a court to impanel an advisory jury as that right existed prior to the adoption of these rules.” We here note that there is a substantial difference in the verbiage of Rule 39.03, Tennessee Rules of Civil Procedure and Rule 39(c), Federal Rules of Civil Procedure.

In Tennessee an advisory jury may be impaneled only in cases of an inherently equitable nature. Hurt v. Earnhart (Tenn.Ct.App.1976) 539 S.W.2d 133; State ex rel. Webster v. Daugherty (Tenn.Ct.App.1975) 530 S.W.2d 81. In such cases the trial judge or chancellor may of his own motion impanel an advisory jury and submit to it such issues of fact as he deems appropriate. The judge or chancellor need not accept the finding of the jury, but he must give it great weight. State ex rel. Webster, supra.

In cases of a non-equitable nature, however, the chancellor or judge must submit to the jury the issues triable by jury and for which demand for jury trial was made, Rule 38. In these situations the trial judge may reject the jury verdict as thirteenth juror, “but such rejection leads to a new trial with a new jury — not a substituted verdict by the Chancellor (trial judge)” Hurt, supra.

Admittedly, the case at bar deals with an additur as allowed by T.C.A. § 20-1330. It must be noted, however, that under the circumstances the trial judge did not have a legally impaneled jury and the verdict to which the additur was suggested was not valid. We also recognize that the fact to be determined was the amount of compensation due the landowner. An argument could be made that the trial judge was the ultimate decider of that fact by virtue of the suggested additur. We reject that line of reasoning because in every condemnation lawsuit the trial judge would be licensed to force a jury trial upon the parties and then correct the error by suggesting an additur or remittitur. The Rules were not designed to permit the trial judge to evade his duty to initially decide issues of fact in non-jury lawsuits.

We, therefore, hold that under the circumstances the trial judge erred in forcing the parties to a jury trial and the jury as impaneled was not an advisory jury. The defendants’ first assignment of error is sustained, the judgment of the trial court is reversed and this lawsuit is remanded to the Circuit Court sitting in Hamilton County, Tennessee, for a new trial. The cost in this Court is adjudged one-half against each party.

SCOTT, Special Judge, concurs.

NEARN, J., dissents.

SCOTT, Special Judge,

concurring.

I concur in the result reached by my colleague writing for the majority. However, I feel constrained to add my interpretation of the rules to this muddled controversy.

Rule 39.02, Tennessee Rules of Civil Procedure, provides that “(i)ssues not demanded by trial by jury as provided in Rule 38 shall be tried by the court . . . .” As used in statutes, contracts, or the like, this word is generally imperative or mandatory, Black’s Law Dictionary, Fourth Edition, page 1541, citing numerous cases. In common parlance, the word shall is a word of command and one which denotes obligation.

It would appear then that when both parties waive the right to a jury trial the matter must be tried by the Court. It is not a matter of discretion, it is an obligation that falls upon the Court. The obligation of the judiciary to try the issues in lawsuits, as tough as that obligation sometimes is, cannot be shifted to the jury where a trial by the Court is specifically sought.

The second clause of Rule 39.02 is not applicable here, for that clause addresses itself to the situation where a party has neglected to demand a jury through inadvertence or neglect. This situation is totally different from that envisioned by this clause. The situation is also different from that in the case of Caudill v. Mrs. Grissom’s Salads, Inc., 541 S.W.2d 101 (Tenn.Sup.Ct.1976). In that case, the Plaintiff filed his complaint and demanded a jury. Prior to any responsive pleading, he filed an amendment deleting the last paragraph (which contained the jury demand) and inserting a new one, changing the amount of damages demanded. No reference to a jury demand was made in the amended complaint. The Defendants sought a jury trial. The Court overruled the Defendants’ motion for a trial by jury and heard the case without a jury. After a verdict in favor of the Plaintiff, the Court of Appeals, as in this case, wrote three separate opinions, and reversed and remanded the case for trial by jury. The Supreme Court, with one Justice dissenting, found an abuse of discretion by the trial judge and affirmed the action of the Court of Appeals. Justice Henry in his dissent found that the Defendants’ counsel had simply failed to correctly “read, analyze, digest, study and respond” to the amended complaint, and that there was no abuse of discretion by the trial judge in failing to order a jury trial. 541 S.W.2d 101 at 106, 107.

The distinction between that case and this case is obvious. In the Mrs. Grissom’s case, one party wanted a jury and the other did not. The issue revolved around the interpretation of the amended complaint. In this case, both parties have indicated by means of an agreed order that they wanted a bench trial. The very able and respected trial judge refused to sign the order and impaneled a jury.

The parties, through their counsel, should be free to pursue their trial strategy unfettered by the trial judge. Why both the land owner and the state did not want a jury trial in a condemnation case is a matter of conjecture. However, it is not a matter of concern to the Court. If they want a bench trial they are, under the rule, entitled to one.

For the reasons stated, I concur.

NEARN, Judge,

dissenting.

I do not agree that it is harmful reversible error to afford litigants a jury without their consent. In view of our harmless error statutes (T.C.A. §§ 27-116, 117), it is incongruous to me to say that a party has been injured to such extent that a new trial is required because twelve men, instead of one, decided that party’s dispute. In fact, I do not believe that appellant Williams, believes that it was reversible or harmful error. His first Assignment of Error is “The Trial Court erred in failing to sign the Agreed Order waiving the Jury.” The entire argument found in the brief on this Assignment of Error consists of one sentence viz.: “The Trial Court could have granted a new trial on the basis that he erred in failing to sign the Agreed Order waiving the Jury.” This hardly complies with our Court Rule 12(l)(b).

Neither do I agree with the majority’s interpretation of the rules. The majority correctly point out that Rules 38.02, 38.03, 38.05 and 39.01 all speak of a party demanding a jury. However, I do not concur in the majority’s interpretation of Rule 39.02 that it provides “the trial judge in his discretion may grant that party a jury trial”. The rule simply does not say that to me. In Rule 39.02 where using the term “upon motion” it is not followed by the words “of a party”. The rule states, “the court in its discretion upon motion may order a trial by jury of any or all issues.” [Emphasis mine] There are motions by parties and there are discretionary motions of the Court sua sponte. The rule does not say upon motion of a party. Neither does it say the Court will “grant” a trial by jury. It says a Court may “order” a trial by jury. Motions of others are granted. The Court acting sua sponte orders, not grants. I would not construe the rule to limit the power of the judge to order a jury trial. It should be remembered that all persons are not always represented by counsel and justice may require that in some instances jury trials be ordered for the benefit of the untrained even though no motion by a party is made.

It seems to be a peculiar quirk to establish as law that a Trial Judge, under Rule 39.02, is vested with discretion to deny the constitutional right of a trial by jury if it is late demanded, but has no discretion whatsoever but to grant the nonconstitutional right of a nonjury trial. See Caudill v. Mrs. Grissom’s Salads, Inc. (1976 Tenn.) 541 S.W.2d 101.

Therefore, I must dissent.

Done at Knoxville in the two hundred and second year of our Independence and in the one hundred and eighty-second year of our Statehood.


author: BARROW, Justice.

text:
    Robert E. STEWART et al., Relators, v. Honorable Tate McCAIN, Judge et al., Respondents.
    No. B-7908.
    Supreme Court of Texas.
    Dec. 13, 1978.
    Rehearing Denied Jan. 17, 1979.
    John L. Hill, Atty. Gen., David M. Kendall, Thomas M. Pollan and Don W. Koth-mann, Asst. Attys. Gen., Austin, Dunnam, Dunnam & Dunnam, Vance Dunnam, Waco, for relators.
    Geary, Stahl, Koons, Rohde & Spencer, Michael E. Rohde, Creel, Atwood, Spinuzzi & Chapman, Luther Edward Creel, III, Dallas, McDonald, Calhoon & Kolstad, John B. McDonald, R. E. Swift, Paxton, Whitaker & Parsons, James R. Paxton and Terry Thorn, Palestine, Bracewell & Patterson, W. Feed Hagans, Houston, Vial, Hamilton, Koch, Tubb, Knox & Stradley, Gerald Powell, Dallas, for respondents.
   BARROW, Justice.

The question presented by this original proceeding is whether Article 342-210 of the Texas Banking Code, which provides that all information obtained by the Banking Department relative to the financial condition of state banks shall be confidential and shall not be disclosed by the Commissioner or any officer of said Department, creates an absolute privilege. Rela-tors have refused to deliver the confidential section of a bank examination report or to divulge information relative thereto in a suit pending before respondent the Honorable Tate McCain, Judge of the Third Judicial District of Texas. We hold that this statute does create an absolute privilege and conditionally grant the relief prayed for herein by relators.

This action arises out of a lawsuit styled Mike Vaughn and MJV, Inc. v. Robert A. Mann, et al, pending in the Third Judicial District Court of Anderson County. In general, it is alleged that MJV conveyed 4,871 acres of land to Walter J. Rusek, Trustee, on February 4, 1976, in exchange for a cash payment of $745,761. It is contended that this conveyance was not a sale but actually a loan and that cause of action seeks to recover damages for an allegedly usurious loan. Vaughn and MJV allege that at the time of the transaction Rusek and Mann were in control of the F.S.B. Liquidating Trust and that Vaughn was indebted to the Trust for the purchase of stock in the American Bank of Waco, Texas. On October 25, 1975, Gary Pool, an assistant departmental examiner of the Texas Department of Banking, conducted an examination of the American Bank of Waco.

On July 6,1978, the attorneys for respondent Mann caused a subpoena duces tecum to be served upon relator Pool, commanding him to produce at deposition all documents and records relating to the examination of the American Bank of Waco including but not limited to the report of examination and any material or documents contained in the confidential section of said report. On July 14, 1978, relator Pool filed motions in the Third Judicial District Court to quash or modify said subpoena duces tecum and to grant him a protective order. A hearing on the motions was held before Judge McCain on August 3, 1978, and this relief was denied. On August 11, 1978, Pool filed a motion in this Court for leave to file a petition for writ of mandamus seeking to compel Judge McCain to vacate his order refusing to quash the subpoena and denying protection. On August 17, 1978, a supplemental order was entered which provided in essence that the deposition testimony, together with all of the documents in their entirety, should be made available only to the parties to this suit, their attorneys, legal assistants and employees. Leave to file was denied by this Court on August 23, 1978, and on September 8, 1978, Pool appeared for his deposition. However, relator Pool upon advice of his attorneys, relators Thomas M. Pollan and Don W. Kothmann, Assistant Attorneys General of Texas, refused to furnish the confidential section of the examination report or testify to any information relative thereto. Also, relator Robert E. Stewart, the State Banking Commissioner, is the official custodian of the records of the Banking Department and refuses to permit relator Pool to produce the confidential section to the examination report unless ordered to do so by this Court.

On September 9,1978, counsel for respondent Mann caused an affidavit for contempt to be filed in the Third Judicial District Court, and the trial court issued notice for all relators, except Stewart, to appear and show cause why they should not be held in contempt for refusal to furnish this information. Thereupon relators Stewart, Pool, Kothmann, and Pollan, filed the instant original proceeding seeking to have this Court set aside the show cause order issued by respondent Judge McCain. Rela-tors have pointed out that neither they nor the State of Texas are parties to the suit pending in the Third Judicial District Court and that they have no interest therein other than the discharge of their official duties in a lawful manner.

A writ of mandamus may issue in this situation to set aside an order of the trial judge, if a clear abuse of discretion is found. Texarkana Memorial Hospital, Inc. v. Jones, 551 S.W.2d 33 (Tex.1977); Houdaille Industries, Inc. v. Cunningham, 502 S.W.2d 544 (Tex.1973); Commercial Travelers Life Insurance Co. v. Spears, 484 S.W.2d 577 (Tex.1972.)

It is not questioned that the Legislature can within constitutional bounds exempt materials from discovery. See Texarkana Memorial Hospital, Inc. v. Jones, supra ; C. McCormick & R. Ray, Texas Law of Evidence, § 504. It is a well-recognized concept that in the conduct of its proper functions a government sometimes needs information concerning the affairs of individuals and organizations which must be kept secret, either to protect the individuals and organizations or to enable the governmental department to properly perform its function. Note, Discovery of Government Documents and the Official Information Privilege, 76 Colum.L.Rev. 142 (1976). Accordingly, statutes are passed to preserve this necessary confidentiality. The problem arises when the information protected by the statute constitutes important and material evidence in a case being tried in court. In resolving this problem we must apply this statute as the Legislature has written it. Texarkana Memorial Hospital, Inc. v. Jones, supra.

The bank examination was conducted by Pool on behalf of the State Banking Department pursuant to Article 342-208. The contents of such examinations are made expressly confidential by Article 342-210 which provides in part that:

“[A]ll information obtained by the Banking Department relative to the financial condition of state banks, whether obtained through examination or otherwise, except published statements, and all files and records of said Department relative thereto shall be confidential, and shall not be disclosed by the Commissioner or any officer or employee of said Department.”

The only exception contained in this statute is as follows:

“Further provided that upon request, the Commissioner may disclose to a Federal Reserve Bank any information relative to its members, and shall permit it access to any files and records or reports relating to its members. Further provided that the Commissioner may, in his discretion, if he deems it necessary or proper to the enforcement of the laws of this State or the United States, and to the best interest of the public, divulge such information to any other department of the State or National Government, or any agency or instrumentality thereof.”

The clear and unequivocal language of Article 342-210 expressly prohibiting disclosure of the confidential material is further emphasized by the sanctions provided under Article 342-211 which provides in part:

“If the Commissioner or any officer or employee of the Banking Department shall . divulge information or permit access to any file or record of the Banking Department in violation of Article 10 of this chapter; ... he shall be deemed guilty of a misdemeanor in office, and shall upon conviction be fined not exceeding Two Hundred Dollars ($200), and forfeit his office or employment.”

In addition to the formal report of examination, the examiner prepares an interoffice memorandum to the Commissioner in connection with the examination report which is commonly referred to as the “confidential section.” This memorandum is prepared on yellow paper and the information contained therein is based on an examiner’s “hunches, opinions and impressions” obtained in the course of examining the bank. It is the failure to produce this confidential memorandum for which respondents seek to hold relators in contempt. Commissioner Stewart points out that in the area of bank regulation this type of information is most important to the continuing process of monitoring, because the examiner’s impression often becomes the first line of defense in averting problems at a bank. It is obvious that this type of information would seldom, if ever, be competent or admissible evidence. This fully supports the legislative insistence that this type information remain confidential. This insistence is demonstrated by the unequivocal language of Section 210 as well as by the criminal penalty provided in Section 211. The Legislature could easily have provided an exception to make the information available for a civil trial had it desired. It did not do so.

Although there has been no court decision construing the effect of this privilege, an Open Records Decision issued by the Attorney General pursuant to the provisions of Article 6252-17a, § 7, concluded information held by the Banking Department pursuant to Article 342-210 should remain confidential. See Tex.Att’y Gen.Op. (To Honorable Robert E. Stewart, Nov. 15, 1976) Open Records Decision No. 147.

A copy of the formal examination report is routinely supplied to the bank by the Commissioner as a part of the regulatory and supervisory process. A copy of the formal report is now in the possession of respondent Mann and, therefore, this case relates entirely to the confidential section of the report.

We conclude that the Legislature established an absolute privilege against the disclosure of the confidential information sought in this suit. We, therefore, hold that Article 342-210 prevents discovery of the confidential section of the report or the information relative thereto. The order of Judge McCain requiring relator Pool to produce and disclose this confidential information is a clear abuse of discretion. Relators should not have to show cause why they should not be found in contempt for failure to produce and disclose the confidential section in question. No writ will be issued unless Judge McCain fails to comply with the foregoing opinion.

CAMPBELL, J., not sitting.

      . All statutory references are to Texas Revised Civil Statutes Annotated.

      . Respondent Mann has stated in his reply that he wants to learn the impressions and hunches of Pool.


author: ONION, Presiding Judge. PHILLIPS, Judge,

text:
    John Foster WALLACE, Appellant, v. The STATE of Texas, Appellee.
    No. 58910.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Jan. 10, 1979.
    Michael D. Murphy, Port Arthur, for appellant.
    Bruce N. Smith, Dist. Atty. and John R. DeWitt, Asst. Dist. Atty., Beaumont, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation. On January 23, 1976, the appellant entered a guilty plea to an indictment charging burglary in a bench trial and his punishment was assessed at seven (7) years’ imprisonment. He was placed on probation following the suspension of the imposition of sentence subject to certain conditions, including a requirement that he not violate the penal laws of this state, etc.

On April 18, 1977 the State filed a three count motion to revoke probation. At a hearing on said motion on June 10,1977, the State abandoned the first two counts and the appellant pled “true” to the third count charging unlawfully carrying a weapon, a club. Without hearing evidence, the record reflects:

“THE COURT: The Court finds that’s true and probation you received January twenty-third, Nineteen-seventy-six is revoked, but I will not impose sentence at this time. I will delay that action until some further date. I hope that I don’t have to take that action. I wish you the best of luck.
“DEFENDANT: Thank you, Your Hon- or.”

The docket sheet reflects:

“Sentence deferred; defendant to serve 4 months Co. jail.”

No written order of revocation was then entered.

On August 17,1977 the appellant’s conditions of probation were modified, and he was ordered to report in person to his probation officer once every two weeks, “while on probation.” It was obvious that appellant was then released from jail. A probation revocation data sheet dated December 3, 1977 reflects that appellant was arrested for public intoxication on November 30, 1977, and that upon being booked, a baggie of marihuana and “PCP” were found on his person. The data sheet noted appellant’s probation was “revoked — deferred” and requested sentencing “due to the fact of this recent arrest for the above charges.” On December 12, 1977 the State filed a motion requesting sentencing and alleging that after sentence was deferred the appellant was found in possession of a controlled substance, phencyclidine, possession of marihuana, and was found intoxicated in a public place. A warrant was ordered issued for his arrest by the trial court.

On January 16, 1977 appellant appeared in court with his court-appointed counsel, who questioned the procedure that had been used. On January 23,1977 appellant’s counsel urged his motion to quash the State’s motion for sentencing. The motion was overruled and the State was ordered to file a motion to revoke. On January 31, 1978, at 9:30 a. m., the State filed its first amended motion to revoke probation. At 11:45 a. m. on that date, the appellant was before the court, who stated that in light of appellant’s plea of “true” to the third count of the earlier revocation motion on June 10, 1977 sentence would be imposed and it was. Notice of appeal was given. The court then stated it would not act on the first amended motion to revoke probation and hold it in abeyance to see if its action was “vacated” by the Court of Criminal Appeals. Thereafter for the first time, a written order revoking probation was entered.

Article 42.12, § 8(a), provides in part:

“If the defendant has not been released on bail, on motion by the defendant the court shall cause the defendant to be brought before it for a hearing within 20 days of filing of said motion, and after a hearing without a jury, may either continue, modify or revoke the probation If probation is revoked, the court may proceed to dispose of the case as if there had been no probation . . .”

It is clear from the statute that upon a revocation hearing the discretion to either continue, modify or revoke rests in the discretion of the trial judge. Wise v. State, 477 S.W.2d 578 (Tex.Cr.App.1972); Soliz v. State, 171 Tex.Cr.R. 376, 350 S.W.2d 566 (1961); Gossett v. State, 162 Tex.Cr.R. 52, 282 S.W.2d 59 (1955). If, however, probation is revoked, the trial judge is to proceed as if there had been no probation.

What did the trial judge do here? Did he continue the appellant on probation or did he revoke probation on June 10, 1977? He orally stated he was revoking probation, but he entered no written revocation at the time and did not impose sentence. In fact, he stated to the appellant that he hoped he didn’t have to take that action. The docket sheet then reflects the appellant was ordered to serve four months in county jail. Just why this was done is not clear from the record. It does not show whether the judge intended this as some form of shock probation, see Article 42.12, § 6b, V.A.C. C.P., or whether appellant was confined by an agreement with the District Attorney.

Under any circumstances, on August 17,1977, the appellant’s conditions of probation were modified and he was released subject to such conditions. He was not sentenced, and appellant’s case was not disposed of as if there had been no probation. In effect what the court did was to continue the appellant on probation. After the filing of the probation revocation data sheet and the State’s motion requesting sentencing which set forth alleged violations of probation, the trial judge ordered a warrant issued for appellant’s arrest. Later, he instructed the State to file a motion to revoke probation, which it did, as a first amended motion for revocation. The trial judge did not act upon said motion but held it in abeyance, sentencing appellant, over protest, relying on his plea of true at the earlier revocation hearing on June 10, 1977.

In Wester v. State, 542 S.W.2d 403 (Tex.Cr.App.1976), the question presented (from the same trial court) was whether a trial judge following a revocation hearing may continue a defendant on probation (although there is an adequate basis for revocation) and then subsequently upon report of another probationary violation revoke probation without motion by the State or a hearing basing the revocation upon the ground shown at the earlier hearing. We concluded he could not.

In Wester the defendant entered a plea of “true” to the first count of the revocation motion and the other two were abandoned by the State. The trial judge announced that the defendant would be continued on probation, modified the conditions of probation requiring Wester to serve thirty days in jail. To the order amending the probationary conditions were found the words “No Reduction if Revoked” and “Automatic Revocation if any other Violation.” Subsequently upon learning of a new theft charge against Wester the court made a docket sheet entry that probation was revoked and a few days later sentenced West-er based on his plea of “true” at the earlier revocation hearing at which time Wester had been continued on probation.

In Wester this court stated:

“Likewise, it follows that when a revocation proceeding has been had and the defendant continued on probation in the discretion of the court (although there was an adequate basis for revocation demonstrated at the hearing), the continuation cannot subsequently be arbitrarily withdrawn at the whim of the trial court or upon mere fact of arrest. To hold otherwise would violate due process, due course of the law of the land and fundamental fairness. The record here clearly supports the fact that the trial judge automatically revoked upon learning of a new arrest and erred in so doing.
“We cannot conclude that the attempt in the formal revocation order to base the revocation on appellant’s plea of ‘true’ at the hearing where he was continued on probation calls for a different result.”

The fact situation is slightly different in the instant case than in Wester, but the trial judge was attempting the same results and continuing the same practice attempting to avoid the effects of Wester. For the same reasons set forth in Wester we set aside the order of revocation. Sappington v. State, 508 S.W.2d 840 (Tex.Cr.App.1974), and Bass v. State, 501 S.W.2d 643 (Tex.Cr.App.1973), are distinguished for the same reasons set forth in Wester. Traylor v. State, 561 S.W.2d 492 (Tex.Cr.App.1978), is also distinguishable on its facts.

If a revocation hearing had been conducted upon the State’s first amended motion to revoke probation filed just prior to sentencing and the sufficient proof on any of the counts of that motion had been offered, the question before us would never have been presented.

The State relies upon Ex parte Miller, 552 S.W.2d 164 (Tex.Cr.App.1977). There this court held that despite an order of revocation a defendant is still subject to the conditions of probation pending an appeal. This is so because the appeal in effect suspends the order of revocation until the mandate of this court is issued. Miller thus can have no application to the instant case where there was no sentence imposed and no appeal.

The judgment is reversed and remanded.

PHILLIPS, Judge,

concurring.

The facts of this case are adequately set out in the opinion of Presiding Judge Onion. It is clear from a reading of Wester v. State, 542 S.W.2d 403, 405-406, that if a probationer is continued on probation, either expressly or impliedly, it is because the trial court has made a determination that such action is in the best interest of society, the individual probationer, and the ends of justice. See Article 42.12, Section 3, V.A.C.C.P. Subsequent withdrawal of probationary privileges cannot be arbitrary. When those privileges are subsequently withdrawn following a motion to revoke probation and a hearing, it is because after reviewing the facts alleged to support the motion the trial court determines it is no longer in the best interest of society or the probationer to permit that probationer the privilege of conditional freedom.

This case represents the threshold question of whether the trial court, following the motion to revoke probation hearing, revoked or continued the probationer in his probationary status. This case represents a situation where the recorded words are at a total variance to the recorded behavior. Since the latter is a more objective and accurate barometer of events transpiring at times and places remote from this Court, more weight should be accorded it when reviewing appeals. This principle is traditionally applied when the accused denies having the requisite culpable mental state for commission of the crime for which he or she is convicted. We look at the testimony describing his/her conduct in committing the crime to determine if it is consistent with the required culpable mental state. If so, we consider the jury to have been supported in inferring that he acted with the alleged mens rea, notwithstanding his protestations.

Similarly, here we have words (“ . probation you received January 23, 1976, is revoked, . . . .”) that are belied by conduct (temporary four months’ imprisonment, modification of probationary terms upon release from temporary confinement, and imposition of sentence only upon notice to trial court of an additional violation). There are even words that are at a variance with the initial declaration that the probation was revoked, i. e., “ . . . but I will not impose sentence at this time. I will delay that action until some further date. I hope that I don’t have to take that action.” It is clear as day that the trial court took the cue from this Court’s opinions in Sappington v. State, 508 S.W.2d 840, and Traylor v. State, 561 S.W.2d 492, and changed his expressions on the record which were condemned in Wester v. State, supra. Yet, the substance of the trial court’s actions has not changed. It is his apparent purpose to create a class of probationers not authorized under our statutes. This class of probationers has fewer due process rights as a result of the invocation of magic words — “revoked —deferred.” Theoretically, the probationer is benefitted because of this “second chance.” But this “second chance” is not sanctioned under our law. The options of the trial court are really only twofold: (1) revoke or (2) continue, with or without modifications. See Article 42.12, Section 8, V.A.C.C.P.

Thus, the objective facts of this cause demonstrate unequivocally that of the two available options, the trial court continued Mr. Wallace on probation, with a modification of probationary conditions. To have subsequently revoked that modified probation on January 31, 1978, without adducing evidence on any alleged violations of the modified terms is to deny the probationer due process, due course of the law and fundamental fairness. Wester v. State, supra. The procedure used also circumvents our statute on probation. Article 42.12, V.A.C.C.P.

I have equal reservations about the vitality of Traylor v. State, supra, because there again the invocation of magic words, i. e., “recesses this hearing pending the court’s making a decision,” serves to create a new class of probationer unauthorized under Article 42.12, V.A.C.C.P. After an eight month recess, revocation was deemed the appropriate discharge of the trial court’s discretion. Interestingly enough, this action took place only after the State brought another violation to the court’s attention. The discussion in Traylor, supra, also represents the creation of an impossible burden of proof on probationers. In Wester, supra, Sappington, supra, was distinguished because there was no record showing that the trial court knew or, if known, relied upon Sappington’s subsequent arrest when it entered its revocation order. In Traylor, supra, there was a clear record showing that the trial court knew of the probationer’s arrest after the “recessed” hearing. However, this Court concluded that the discussion of the arrest related only to jail time credits. The decision of this Court to leave the probationer-revokee-appellant with the burden of proving affirmatively that the trial court relied on the arrest subsequent to the recessed/deferred revocation hearing/decision is an impossible burden.

A sounder course in these turbulent waters is to reaffirm the statutory limitation on the trial court’s discretion. That is, the trial court either revokes or continues, with or without modifications. There is no such animal as a quasi-revoked/quasi-continued probation. If some time is required to decide whether to reduce the term of imprisonment, then, of course, a recess for a reasonable period of time is appropriate. The trial court in Sappington v. State, supra, if of the opinion that the ends of justice and the best interests of society and Sappington warranted it, should have continued the probation with the rehabilitation treatment as a new condition.

Insofar as the Traylor and Sappington decisions elevate trial courts’ discretion above the statutory limitations of Article 42.12, V.A.C.C.P., they should be overruled. The schemes they foster serve only to obfuscate procedure and distort the administration of justice.

For the foregoing reasons and the reasons expressed in Presiding Judge Onion’s opinion, I am of the opinion that the trial court in this case abused its discretion and the judgment should be reversed and remanded.

      . Letters from the appellant in jail to the court show he believed he was serving the time for the charge of unlawfully carrying a weapon.

      . It is observed that this statute permits detention in a penal institution as a condition of probation, but it is not to exceed thirty days or one-third of the punishment assessed, whichever is lesser.

      . Appellant’s counsel mentioned an agreement in his colloquy with the court prior to the sentencing.

      . After the prior hearing no ruling on revocation was entered because the probationer requested an opportunity to undergo narcotic addiction rehabilitation treatment.

      . This conclusion is of doubtful validity since Traylor was arrested on November 12, 1976, for the “new offense” of heroin possession. The motion to revoke probation was not filed until November 16, 1976. There was no indication that a capias ever issued under the November 16 motion to revoke probation. Thus, Traylor was not under arrest from November 12, 1976, on “said cause” of the recessed hearing on the April 5, 1976, motion to revoke probation. See Article 42.03, Section 2, V.A.C. C.P.

      . I consider eight months as an inappropriately long recess. See Traylor v. State, supra.


author: W. C. DAVIS, Judge.

text:
    Ex parte Leroy BROWN.
    No. 59097.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1979.
    Kenneth Anderson, Huntsville, for appellant.
   OPINION

W. C. DAVIS, Judge.

This is a post conviction application for writ of habeas corpus. Article 11.07, V.A.C. C.P.

The petitioner asserts that his present 99-year sentence is void, as his 1960 conviction for assault with intent to rape (which provided for a minimum sentence of two years but no maximum term) was enhanced by a prior conviction for the same offense, pursuant to Article 62 of our former Penal Code. His contention was rejected on appeal in Brown v. State, 171 Tex.Cr.R. 167, 346 S.W.2d 842 (1961); however, our subsequent decision of Ex parte Davis, 412 S.W.2d 46 (Tex.Cr.App.1967) (on rehearing), expressly overruled Brown, supra, holding that Article 62, V.A.P.C., cannot be applied where the statute fails to provide a maximum term or a life term as punishment for the primary offense. See also Cole v. State, 417 S.W.2d 408 (Tex.Cr.App.1967).

We are confronted with what relief is to be granted petitioner. In Davis, supra, we relied upon Ex parte Erwin, 145 Tex.C.R. 504, 170 S.W.2d 226 (1943), which held that as the statute under which the relator was punished was valid only in regard to the minimum, and therefore any term in excess of the minimum was void, and it having been shown by certificate that the relator had served said minimum, he was entitled to discharge.

Ex parte Murillo, 528 S.W.2d 127 (Tex.Cr.App.1975), and Ex parte Hill, 528 S.W.2d 125 (Tex.Cr.App.1975), purport to overrule Erwin and Davis, among others, as to the type of relief available to the successful petitioner. In Hill, we held:

“ . . . where a void sentence is attacked on habeas corpus, this Court has .the power in those cases where the court has assessed punishment, to remand the petitioner to the trial court for the assessment of a proper punishment and sentence.”
⅜ * ⅜5 ‡ Jfc *

We reasoned:

“ . . because of the Legislature’s adoption of a bifurcated system of criminal trials, this Court is empowered to mandate a reversal and remand only as to the punishment phase where the court assesses punishment.”

We do not deem it necessary to distinguish those cases decided pursuant to our former unitary proceeding from those considered under our present bifurcated trial procedure. We think the proper inquiry should be who assessed the punishment and therefore conclude that although the court announced the correct rule in Hill, we think its application overruling Erwin was mistaken. In Erwin, supra, a jury assessed an unauthorized and excessive punishment; however, the rule was correctly applied in Ex parte Davis, where the defendant pled guilty and the court assessed punishment. We are bound by the longstanding rule that this Court may not substitute its judgment for that of the jury in reviewing the assessment of punishment. Ocker v. State, 477 S.W.2d 288 (Tex.Cr.App.1972); Moss v. State, 574 S.W.2d 542 (No. 54,392, decided October 6,1978) (on rehearing). Therefore, in those cases where the jury assessed punishment, this Court cannot reverse and remand for a reassessment of punishment.

The relator is ordered discharged in Cause No. 33383 and the corresponding Lubbock County sentence.

DOUGLAS, J., not participating.

      . Article 62; Subsequent Conviction for a Felony:
      “If it be shown on the trial of a felony less than capital that the defendant has been before convicted of this same offense, or one of the same nature, the punishment on such second or other subsequent conviction shall be the highest which is affixed to the commission of such offenses in ordinary cases."

      . See Footnote # 2, Hill, supra, 528 S.W.2d 125 at 127.

      . The court incorrectly applied the rule of Hill in overruling the following cases, footnote number two in the Hill case, which, upon inspection of the record show that the jury assessed punishment: (1) Ex parte O’Dare, 146 Tex.Cr.R. 162, 172 S.W.2d 336 (1943); (2) Ex parte Wheat, 146 Tex.Cr.R. 171, 172 S.W.2d 344 (1943); (3) Ex parte Daugherty, 146 Tex. Cr.R. 303, 174 S.W.2d 493 (1943); (4) Ex parte Whitten, 151 Tex.Cr.R. 169, 205 S.W.2d 588 (1947); (5) Ex parte Geisling, 243 S.W.2d 833 (Tex.Cr.App.1951); (6) Ex parte Goss, 159 Tex.Cr.R. 235, 262 S.W.2d 412 (1953); (7) Ex parte Foight, 165 Tex.Cr.R. 153, 306 S.W.2d 132 (1957); (8) Ex parte Webb, 374 S.W.2d 675 (Tex.Cr.App.1964); (9) Ex parte Collier, 440 S.W.2d 854 (Tex.Cr.App.1969).


author: ONION, Presiding Judge. PHILLIPS, Judge. DOUGLAS, Judge,

text:
    Marylin Church COMMONS, Appellant, v. The STATE of Texas, Appellee.
    No. 54485.
    Court of Criminal Appeals of Texas, Panel No. 2.
    May 17, 1978.
    Opinion on State’s Motion for Rehearing Jan. 17, 1979.

      Kerry P. Fitzgerald, John Cravens, Dallas, for appellant.
    Henry Wade, Dist. Atty., William M. Lamb, Dan Guthrie and Coleman Sylvan, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction of the misdemeanor offense of fraudulently substituting price tags in violation of V.T.C.A., Penal Code, § 32.47. The jury assessed punishment at a probated fine of $50.00.

The record reflects that appellant, while shopping in a Skaggs-Albertson store in Dallas County, removed a $1.79 price tag from a box containing liquid Tylenol and substituted therefor a $.99 price tag which she had taken from a box of Tylenol tablets. When she checked out at the cashier’s stand, she was charged $.99 for the liquid Tylenol. A Dallas police officer, Murray Jackson, who was working as a security officer in his off-duty hours for this Skaggs-Albertson store, observed appellant substitute the price tags, kept her under surveillance until she checked out of the store, and then apprehended her.

The relevant portion of the information upon which appellant was tried follows:

“. . . did unlawfully then and there knowingly and intentionally with intent to injure, defraud and harm, another, Murray Jackson, remove and substitute a writing, to wit: price tag, which was not a governmental record.”

It is apparent that when price tags are switched on merchandise, as was the case here, it is the owner of the merchandise who is injured, defrauded and harmed because it is the owner who stands to receive less for his goods as a result of the fraudulent act.

Here the information alleges that appellant substituted the price tags with the intent to injure, defraud and harm Murray Jackson, the security officer of the store; yet there is no evidence that he was the owner of the merchandise or the person who exercised care, control and custody thereof. See Article 21.08, V.A.C.C.P.; Eaton v. State, 533 S.W.2d 33 (Tex.Cr.App.1976); Roberts v. State, 513 S.W.2d 870 (Tex.Cr.App.1974); Harriford v. State, 487 S.W.2d 351 (Tex.Cr.App.1972); Castillo v. State, 469 S.W.2d 572 (Tex.Cr.App.1971).

Under these circumstances, we agree with appellant’s contention that there was a fatal variance in the allegations in the information and the evidence introduced.

The judgment is reversed and the cause remanded.

OPINION ON STATE’S MOTION FOR REHEARING

PHILLIPS, Judge.

On original submission appellant’s conviction for the fraudulent substitution of price tags in violation of V.T.C.A., Penal Code, Section 32.47 was reversed because of a fatal variance between the allegations in the information charging the offense and the evidence introduced. Upon reconsideration of this case and the State’s motion for rehearing, we are convinced that the original disposition was correct. The State, in its motion for rehearing, confuses the issues at hand. They are correct in their assertion that the actual owner of the property on which the price tags were substituted or changed need not be alleged in the charging instrument. What the State fails to acknowledge, however, is that in this particular case they chose to make a “descriptive averment” as to who the “another” was, an essential averment. Having made a specific allegation, they were obligated to establish that allegation with proof. Roberts v. State, Tex.Cr.App., 513 S.W.2d 870; Easley v. State, 167 Tex.Cr.R. 156, 319 S.W.2d 325.

The general rule is that when the ownership of the property needs to be alleged and the property is owned by a corporation, the ownership should be alleged in the name of a natural person who fits within the definition of a special owner. See Roberts v. State, supra; Eaton v. State, Tex.Cr.App., 533 S.W.2d 33; Harriford v. State, Tex.Cr.App., 487 S.W.2d 351; Castillo v. State, Tex.Cr.App., 469 S.W.2d 572; Article 21.08, V.A.C.C.P. In the instant case, the Skaggs-Albertson Corporation owned the property. The corporation was the party injured. Murray Jackson was alleged to be the natural person that appellant intended to injure, defraud, and harm when she removed and substituted a price tag. The evidence showed that Murray Jackson was a security guard who worked for the corporation. Such an employment relationship does not render a security guard a special owner of the property within the premises he guards. See V.T.C.A., Penal Code, Section 1.07(24); McGee v. State, 572 S.W.2d 723 (1978). The dissent suggests that the evidence does support the essential averment that Murray Jackson was indeed harmed, injured and defrauded because he was “the person affected” by the appellant’s act and was likewise “interested” in the welfare of the owner. We concede that a security guard is interested, or should be, in the welfare of his or her employer, the owner of the property to be guarded; however, we disagree that the removal and substitution of price tags “affects” a security guard in the sense intended in the definition of “harm” under V.T. C.A., Penal Code, Section 1.07(16). The person “affected” by the removal and substitution of price tags is the owner, be he general or special. It is clear that Murray Jackson did not suffer any “loss, disadvantage, or injury” from the actions of the appellant.

The conclusion reached in the original opinion is sound in that the party injured, defrauded, or harmed by the removal and substitution of the price tag is the property owner. The evidence established only that Skaggs-Albertson was the owner of the property and such proof was at a complete variance with the allegation by the State that Murray Jackson was the person the appellant intended to injure, defraud, or harm. Such a variance in the allegation and proof is fatal and compels a reversal of appellant’s conviction.

The State’s motion for rehearing is overruled.

DOUGLAS, Judge,

dissenting.

A Dallas police officer, Murray Jackson, testified that he worked as a security guard for Skaggs-Albertson Store to watch for, among other things, shoplifters and those who changed price tags on merchandise. While he was working there one afternoon he saw appellant remove a price tag from a large container of Tylenol and affix in its place the price tag from a smaller size. She was apprehended by Jackson outside the store.

The Court, on original submission, held that the State failed to prove that Murray Jackson was “the owner” of the merchandise as alleged in the information. The information alleged that appellant did “then and there knowingly and intentionally with intent to injure, defraud and harm, another, Murray Jackson, remove and substitute a, writing, to wit: price tag, which was not a governmental record.” The name of the person to be defrauded or harmed does not have to be alleged. Article 21.05, V.A.C.C.P., provides:

“Where a particular intent is a material fact in the description of the offense, it must be stated in the indictment; but in any case where an intent to defraud is required to constitute an offense, it shall be sufficient to allege an intent to defraud, without naming therein the particular person intended to be defrauded.”

Even though the information may have alleged more than was necessary, there was no variance between the allegation and the proof. V.T.C.A., Penal Code Section 32.-47(a), provides as follows:

“A person commits an offense if, with intent to defraud or harm another, he destroys, removes, conceals, alters, substitutes, or otherwise impairs the verity, legibility, or availability of a writing, other than a governmental record.” (Emphasis added).

The statute neither requires the information to allege nor does it require proof as to the owner. “Another” is defined in V.T. C.A., Penal Code Section 1.07(4), as “. . .a person other than the actor.”

The information alleges that appellant intended to defraud and harm Murray Jackson, and the proof supports that allegation. Harm is defined in V.T.C.A., Penal Code Section 1.07(16):

“ ‘Harm’ means anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.” (Emphasis added).

Even if proof of ownership were required, V.T.C.A., Penal Code Section 1.07(24): “ ‘Owner’ means a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.”

Jackson, by reason of his employment to prevent shoplifting and other crimes and to apprehend fraudulent takers of property and to return it to the store, had a greater right to possession than the appellant did. Jackson, under Section 1.07(16), supra, was interested in the welfare of those who owned the store and who were affected.

The State’s motion for rehearing should be granted and the judgment should be affirmed.

TOM G. DAVIS, DALLY and W. C. DAVIS, JJ., join in this dissent.


author: PHILLIPS, Judge. DOUGLAS, Judge. ROBERTS, Judge,

text:
    J. D. PARR, Appellant, v. The STATE of Texas, Appellee.
    No. 54736.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 27, 1978.
    Rehearing Denied Jan. 17, 1979.
    Rehearing En Banc Denied Feb. 21, 1979.

      James E. Forbis, Decatur, for appellant.
    Jerry W. Woodlock, Dist. Atty., Brock R. Smith, Asst. Dist. Atty., Gainesville, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of involuntary manslaughter. V.T.C.A., Penal Code, Sec. 19.05(a)(2). Punishment was assessed by the jury at five years’ imprisonment.

The evidence adduced at trial revealed that on the evening of July 2, 1974, Mary Elizabeth Finley was struck and killed by a pickup truck driven by the appellant.

Virgil Waldrip testified that, on July 2, he was driving south on Highway 114 when he noticed the appellant’s blue and white Chevrolet pickup truck driving toward him. When Waldrip first saw the appellant, the appellant was driving halfway on the shoulder of the road and halfway on the road. The appellant then drove onto the road and back onto the shoulder. Once again driving on to the road, the appellant crossed the center stripe and ran Waldrip off the road. Waldrip then observed the appellant drive back into the proper lane and off onto the shoulder. The appellant next swerved back onto the road, across the center stripe, across a ditch and ran into someone’s yard, crashing into some trees. Waldrip turned his car around and drove to the scene. When he arrived, he saw the appellant sitting behind the steering wheel and went over to ask the appellant if he was hurt. The appellant replied that he was not injured. When the ambulance arrived, Wal-drip and the ambulance driver helped the appellant out of the truck and into the ambulance. Waldrip noticed the smell of liquor on the appellant’s breath.

Sheriff Eldon Moyers testified that he spoke to the appellant at the hospital and the appellant said he had driven the pickup. Moyers noticed a strong smell of alcohol about the appellant and the appellant’s eyes were watery. It was Moyer’s opinion that the appellant was intoxicated.

Patrolman Harold McFerrin testified that he received a call at 8:12 p. m. on July 2 and proceeded directly to the scene. Upon arrival, he ran a license check on the pickup truck and found it was registered to the appellant. McFerrin then examined the body of the deceased and when he felt her arm he could not find a pulse. He proceeded to the hospital to talk to the appellant. McFerrin noticed that the appellant’s eyes were watery and bloodshot and there was the smell of alcohol on the appellant’s breath. McFerrin stated that it was his opinion the appellant was intoxicated.

Diana Cottle, a ten-year-old friend of the deceased, testified that she, Lisa Eckman, and the deceased were playing in the yard immediately prior to the incident on July 2. In describing the incident, Cottle stated, “The truck — well, it came and well, you know, we just let go and it got her [the deceased] on the bumper and took her through the tree and stuff.”

Kathryn Finley, the deceased’s mother, testified that the deceased was in good health prior to the accident and afterwards she was not breathing. Justice of the Peace H. M. Bunnell held a coroner’s inquest after the incident and examined the body of the deceased, identified to him as Mary Elizabeth Finley. Bunnell observed that she was not breathing and her intestines were exposed. He pronounced her dead at the scene.

Officer Paul Geiser testified that he had been requested to go to the hospital to try to obtain a blood sample from the appellant. After arriving at the hospital, Geiser identified himself to the appellant and asked the appellant if he would give a blood sample. After the appellant refused three times, he finally consented to the taking of the blood sample. Geiser then asked a nurse to take the sample.

Fay Thurman stated that Officer Geiser asked her to take the blood sample from the appellant. Thurman, agreed to take the sample with the appellant’s consent. When Geiser and Thurman then approached the appellant and asked if they could draw blood, the appellant agreed, saying he couldn’t deny it, “you might as well.” She then took a sample of appellant’s blood which Officer Geiser placed in a glass vial.

Dennis Johnson, a Texas Department of Public Safety chemist, testified that he received the vial in the mail and analyzed the blood for alcoholic content. The analysis revealed that the blood contained .23 percent alcohol. Johnson stated that, in his opinion, a person would be intoxicated if his blood contained .10 percent alcohol or more.

The appellant testified in his own behalf that he was a disabled veteran and was required to take several types of medication and use an aspirator. The appellant stated that while he had been drinking the two days preceding July 2, he did not drink any alcoholic beverages on that day. The appellant related that he went to Fort Worth accompanied by his housekeeper, and wife at the time of trial, Teresa Finoglio. After depositing his disability check in the bank, the appellant paid several bills. He then drove to the house of Finoglio’s daughter where he left Finoglio to visit her four youngest children. After he went to the commissary at Carswell Air Force Base, the appellant returned after 6 o’clock to pick up his housekeeper and her children. Before leaving Fort Worth, the appellant stopped and bought two 12-packs of beer, which he did not open. They then proceeded to Irene Dawson’s house in order to deliver some grocery items and left the Dawson residence at approximately 7:30 p. m. During this time, Finoglio had some beer to drink, but the appellant did not drink anything.

After they left Dawson’s house, the appellant noticed a vehicle approaching, heading into his lane of traffic. The appellant swerved to the right but was still in the path of the oncoming car. He turned the wheel sharply to the left to miss the car, but when he tried to turn the truck back to the right the steering wheel locked. The appellant hit the ditch on the other side of the road and lost consciousness.

Teresa Finoglio Parr, the appellant’s wife at the time of trial, corroborated the appellant’s testimony. She stated that she did have a beer when she left her daughter’s house and again at Irene Dawson’s house. However, she testified that she did not see the appellant drink during the day. Concerning the accident, she stated that when they swerved left to avoid the oncoming car the steering wheel apparently locked. After the collision, the appellant appeared unconscious.

Irene Dawson testified that when the appellant left her house at 7:30 p. m. he appeared normal and was not intoxicated. The defense also introduced testimony from a bank teller and an electric company employee who testified that, during their dealings with the appellant on July 2, the appellant was not intoxicated.

Ernest McDaniel, the manager of a service station, testified that he examined the steering mechanism on the appellant’s truck after the accident. He stated that the locking mechanism was not working properly and the steering wheel was in a locked position which could not be unlocked.

In his fourth ground of error, the appellant contends that the definition of intoxication under V.T.C.A., Penal Code, Sec. 19.05(b) is “too broad to meet the constitutional test of certainty and is unduly vague.” V.T.C.A., Penal Code, Sec. 19.05(b) provides:

“For purposes of this section, ‘intoxication’ means that the actor does not have the normal use of his mental or physical faculties by reason of the voluntary introduction of any substance into his body.”

Appellant argues that the statutory wording which condemns the voluntary introduction of any substance into the body fails to give adequate or proper notice to the citizenry as to what conduct will be considered criminal on their part. As this Court stated in McMorris v. State, 516 S.W.2d 927:

“A statute is void for vagueness if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute, Papaehristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed.2d 989 (1953), and if it encourages arbitrary and erratic arrests and convictions. Papachristou v. City of Jacksonville, supra; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed.2d 1093 (1940); Herndon v. Lowrey, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed.2d 1066 (1937).
A clear and precise statute may nevertheless be overbroad if in its reach it prohibits constitutionally protected conduct.”

Appellant argues that the statute does not give notice to the citizens of this State which substances are prohibited by Sec. 19.-05(b) and that such statute condemns protected conduct. Specifically, appellant points out that the statute, in its reach, might prohibit the driving of a motor vehicle while a person is voluntarily taking a drug prescribed by a physician, such as a tranquilizer or an antihistamine.

It is presumed that, in enacting a statute, the entire statute is intended to be effective, a just and reasonable result is intended, and a result feasible of execution is intended. Lovell v. State, Tex.Cr.App., 525 S.W.2d 511; Article 5429b-2, V.A.C.S. In viewing Sec. 19.05 as a whole, we find that Sec. 19.05(b) seeks to define, and thereby prohibit under Sec. 19.05(a)(2) a specific type of conduct. The conduct condemned is when a person operates a motor vehicle when such person does not have the normal use of his mental and physical faculties and such conduct causes the death of an individual. As can be readily seen from this paraphrase of the statute, the statute does not focus on what substance or substances a person introduces into his body. Rather, the statute condemns only that conduct when, having voluntarily introduced a substance (albeit a legally prescribed drug) into his body, a person does not have the normal use of his mental or physical faculties and such person operates a motor vehicle which results in the death of an individual due to his impaired condition.

In a closely analogous situation, it is not a violation of the laws of this State for an adult to drink intoxicating liquors. Cf. Article 106.04, Alcoholic Beverage Code. However, if a person operates a motor vehicle upon a public road while such person is under the influence of intoxicating liquor, such conduct is prohibited. Article 67017 -1, V.A.C.S. Consequently, it is not the act of consuming the intoxicating liquor which is prohibited, but only when a person also operates a motor vehicle on a public road while under its influence. Nelson v. State, 96 Tex.Cr.R. 210, 261 S.W. 1046; Williams v. State, 100 Tex.Cr.R. 50, 271 S.W. 628; Nunn v. State, 114 Tex.Cr.R. 487, 26 S.W.2d 648; Herring v. State, 117 Tex.Cr.R. 211, 35 S.W.2d 737; Grant v. State, Tex.Cr.App., 505 S.W.2d 279.

Likewise, in the instant case, it is not a violation of the law for a person to insert a legal substance or a prescribed drug into his body. Cf. Articles 4476-14 and 4476-15, V.A.C.S. However, if that person thereby loses the normal use of his physical or mental faculties, operates a motor vehicle, and kills an individual due to his impaired condition, such conduct is a violation of Sec. 19.05(a)(2). Consequently, we hold that Sec. 19.05(b), when construed with Sec. 19.05(a)(2), is sufficiently definite to give a person of ordinary intelligence fair notice of what conduct is forbidden by statute and that such statute does not reach constitutionally protected conduct. McMorris v. State, supra; see and cf. Brandon v. State, 146 Tex.Cr.R. 480, 176 S.W.2d 323; McCarthy v. State, 153 Tex.Cr.R. 149, 218 S.W.2d 190. Appellant’s contention is overruled.

In his third ground of error, the appellant complains that the indictment is fatally defective for failing to apprise him of the substance he allegedly introduced into his body. V.T.C.A., Penal Code, Sec. 19.05(a)(2) provides that a person commits an offense if he:

“By accident or mistake when operating a motor vehicle while intoxicated and, by reason of such intoxication, causes the death of an individual.”

The relevant portion of the indictment in the instant case alleges that the appellant:

“ . . - by accident and mistake when operating a motor vehicle while intoxicated, and by reason of said intoxication cause the death of an individual, Mary Elizabeth Finley, by then and there driving said motor vehicle into and causing it to collide with the said Mary Elizabeth Finley.”

As a general rule, an indictment in the language of the statute creating and defining the offense charged will be sufficient. Neill v. State, Tex.Cr.App., 225 S.W.2d 829; Lopez v. State, Tex.Cr.App., 494 S.W.2d 560; Mears v. State, Tex.Cr.App., 557 S.W.2d 309. In the instant case, the indictment tracks the statute and is sufficient to charge an offense against the laws of this State. Appellant’s contention regarding the specificity of the substance relates to the certainty of the allegations and notice. Such complaints as to the sufficiency of the indictment must be raised in the trial court by a motion to quash. Articles 21.21(7) and 27.09(2), V.A.C.C.P.; Mears v. State, supra; Stribling v. State, Tex.Cr.App., 542 S.W.2d 418. In the instant case, the appellant failed to present a motion to quash the indictment to the trial court. Having failed to challenge the indictment at the trial level, his complaint as to its sufficiency cannot be considered on appeal. American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598; Trevino v. State, Tex.Cr.App., 519 S.W.2d 864; Hughes v. State, Tex.Cr.App., 561 S.W.2d 8. We conclude that the indictment was sufficient, absent a motion to quash, to charge an offense under Sec. 19.05(a)(2). Appellant’s contention is overruled.

In his Ground of Error 1, appellant complains that the trial court erred in refusing to give a charge on circumstantial evidence. Specifically, the appellant alleges that there was no direct evidence that his intoxication caused the death of Mary Elizabeth Finley.

In Gonzales v. State, 169 Tex.Cr.R. 492, 335 S.W.2d 385, an appeal from a conviction under our formal penal code, Article 802c, V.A.P.C., this Court faced the same contention now urged by the appellant. In that case, this Court stated:

“ . . .In view of appellant’s admission that he was driving the car and evidence that the car was operated upon a public highway, and the testimony that he was intoxicated a charge on circumstantial evidence was not required.”

It was established by direct evidence that Mary Elizabeth Finley was in good health prior to the incident and was dead after being struck by the pickup truck. There was other direct evidence that the appellant was the driver of that truck. Several witnesses testified that the appellant was intoxicated. Dennis Johnson testified that a chemical analysis of the appellant’s blood revealed a .23 percent alcohol content and that a person would be intoxicated with .10 percent alcohol in the blood.

Under the facts of this case, we hold that a charge on circumstantial evidence was not required. We observe that appellant’s contention is more properly a complaint concerning causation. In cases of this nature, the existence or nonexistence of such causal connection is normally a question for the jury. See Sanchez v. State, Tex.Cr.App., 398 S.W.2d 117; Stewart v. State, 172 Tex.Cr.R. 253, 355 S.W.2d 706; Dorsche v. State, Tex.Cr.App., 514 S.W.2d 755. In the present case, the jury was properly charged with reference to the necessity of a causal connection. Appellant’s contention is overruled.

In his Ground of Error 2, the appellant contends that the trial court erred in failing to give his special requested instruction relative to the presumption of intoxication. The appellant requested the following instruction:

“You are further instructed that if it is shown beyond a reasonable doubt by chemical analysis of a person’s blood, urine, or other bodily substance, that there was at the time of the act alleged 0.10 per cent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of intoxicating liquor; however, such amount of alcohol in the blood of the person, if you find there was such amount of alcohol in the blood of the person, merely raises a presumption that such person was under the influence of intoxicating liquor. This presumption is not conclusive, but may be considered by you along with all the other evidence in the case, and if, upon consideration of all the evidence, you entertain a reasonable doubt as to whether or not the defendant was under the influence of intoxicating liquor, you must find him not guilty.”

The court charged the jury as follows:

“You are further instructed that if it is shown beyond a reasonable doubt by chemical analysis of a person’s blood, urine, or other bodily substance, that there was at the time of the act alleged 0.10 per cent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of intoxicating liquor; however, such amount of alcohol in the blood of the person, merely raises a presumption that such person was under the influence of intoxicating liquor. This presumption is not conclusive, but may be considered by you along with all the other evidence in the case.”

It is well established that special requested charges may be properly refused where the instructions given by the court are adequate and fully protect the accused as to the matters included in the requested charges. Mitchell v. State, Tex.Cr.App., 517 S.W.2d 282; Aranda v. State, Tex.Cr.App., 506 S.W.2d 221; Webster v. State, Tex.Cr.App., 455 S.W.2d 264; Wood v. State, Tex.Cr.App., 440 S.W.2d 640. In the instant case, the charge given was substantially the same as the charge requested and adequately protected the appellant’s rights. Powell v. State, Tex.Cr.App., 494 S.W.2d 575; Parks v. State, Tex.Cr.App., 437 S.W.2d 554; Rousey v. State, 170 Tex.Cr.R. 27, 338 S.W.2d 254; see Easdon v. State, Tex.Cr.App., 552 S.W.2d 153. Appellant’s ground of error is overruled.

In his final ground of error, the appellant complains of the following argument by the prosecutor:

“If you would, besides considering all of this evidence—you know I said it’s also important that you all are the judges of the credibility or the believability of the witnesses. Who has got something to gain here? I don’t have anything to gain. I’ve got more cases—and I think the Judge will tell you that, I’ve got more cases right now than I can possibly get to.
I’ll also tell you, and I hope this doesn’t affect whether you vote for me or not next time, I’ve dismissed plenty of cases when I don’t think there’s enough evidence to go to trial on them. There is no point in trying them.
MR. FORBIS [Appellant’s attorney]: Your Honor, I object to this argument. I’ve pled a lot of people guilty, too, but I don’t think that has anything to do with the facts in this case.
THE COURT: I sustain the objection.
MR. FORBIS: I request that the Jury be instructed to disregard those arguments.
THE COURT: Yes, sir.
MR. FORBIS: I respectfully move for a mistrial.
THE COURT: Denied.”

The appellant argues that the prosecutor was asking the jury to accept his personal opinion of guilt and such argument requires reversal. In Spaulding v. State, Tex.Cr. App., 505 S.W.2d 919, the prosecutor stated: “I wouldn’t be up here right now if I didn’t think this man was guilty . . . .” The defendant’s objection was sustained and the jury was instructed to disregard, but the defendant’s motion for mistrial was denied. This Court held in Spaulding that the prompt action by the trial court, followed by an instruction to disregard, removed the harmful effect and no reversible error was presented. Similarly, in the instant case, we find the trial court’s action cured any error. Willis v. State, Tex.Cr.App., 518 S.W.2d 247; Taylor v. State, Tex.Cr.App., 550 S.W.2d 695; Wyatt v. State, Tex.Cr.App., 566 S.W.2d 597, 1978. Cf. Elizondo v. State, Tex.Cr.App., 545 S.W.2d 453. Appellant’s final contention is overruled.

The judgment is affirmed.

OPINION ON APPELLANT’S MOTION FOR REHEARING

DOUGLAS, Judge.

Appellant in this motion for rehearing for the first time argues that his sentence was prematurely pronounced and this Court was, therefore, without jurisdiction to hear his appeal. Parr urges that we dismiss his appeal and allow the case to proceed with a timely sentencing and whatever subsequent appellate steps Parr chooses to pursue.

The jury assessed punishment against appellant and a judgment was entered on September 12, 1975. Within ten days of this date, on September 19, 1975, appellant filed a motion for new trial. He was sentenced on October 6, 1975. On that date the trial court had not directly overruled his motion for new trial and, because it had not been on file for twenty days, it had not been overruled by operation of law. Article 40.05, V.A.C.C.P.

A sentence should not be pronounced until the motion for new trial is overruled. Ex parte Shields, 550 S.W.2d 670 (Tex.Cr.App.1977). However, in Shields, we carefully analyzed the nature of this defect and concluded that it rendered the sentence voidable, not void.

In the instant case, appellant acquiesced to the premature sentence. He neither objected at the time nor raised it in his appellate brief. Instead, he raises it for the first time on motion for rehearing. Under Article 40.09, V.A.C.C.P., this Court has power to review only grounds of error raised by the “defendant’s brief in the court” and unassigned error which in our opinion “should be reviewed in the interest of justice.” Given appellant’s decision to acquiesce in the premature sentencing, his decision not to raise the issue until after our original opinion was handed down, and the fact that the defect renders the sentence voidable not void, we conclude that consideration of the issue would not be in the interest of justice. Housewright v. State, 573 S.W.2d 233 (Tex.Cr.App.1978) (opinion on original submission).

The motion for rehearing is overruled.

ROBERTS, Judge,

dissenting.

For the reasons stated in my dissenting opinion in Housewright v. State, 573 S.W.2d 233 (Tex.Cr.App.1978), I dissent. If a motion for new trial is timely filed, sentence should not be pronounced until the motion has been expressly overruled following a hearing or overruled by operation of law. See Ex Parte Shields, 550 S.W.2d 670, 674 (Tex.Cr.App.1977). Since the pronouncement of sentence in this case was untimely and premature, I would dismiss the appeal.

      . See and cf. Article 6701d, Sec. 50, V.A.C.S.