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

text:
    Earnest ZILLENDER, Appellant, v. The STATE of Texas, Appellee.
    No. 52942.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1977.

      Melvyn Carson Bruder, Dallas, for appellant.
    Henry Wade, Dist. Atty., William M. Lamb and Kelly Loving, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ON APPELLANT’S MOTION FOR REHEARING

ROBERTS, Judge.

On original submission, the appellant asserted that the trial court erred in overruling his objection to the use of a prior probated conviction for impeachment purposes by the State. In considering appellant’s contention, we held that the error, if any, was waived. We now hold that there was no waiver and that the impeachment was improper, but that the error was harmless beyond a reasonable doubt.

The record reflects that the appellant robbed the complainant at gunpoint in Dallas. Shortly after the robbery, the appellant and his co-defendant were arrested. The fruits of the robbery and the weapon used during the robbery were found in the possession of the appellant and his co-defendant.

At trial, the appellant’s confession was introduced in evidence and the complainant identified the appellant as one of the two robbers. The appellant denied committing the offense, denied signing the confession, and denied having any of the fruits of the robbery in his possession.

The record further reflects that after the appellant took the stand the prosecutor attempted to impeach him on cross-examination with a prior probated conviction. Counsel for the appellant objected on the grounds that the conviction was not a final conviction and requested the opportunity, in the event his objection was overruled, to prove the lack of finality of the conviction by a bill of exception.

The jury found the appellant guilty and the trial judge assessed punishment at twenty-five (25) years in the Texas Department of Corrections.

The essential question is whether the objection was sufficiently specific to preserve for review the issue of whether the probationary period of the prior conviction had expired, thereby rendering the conviction neither final nor within the purview of Article 38.29, Vernon’s Ann.C.C.P.

The generally acknowledged policies of requiring specific objections are twofold. First, a specific objection is required to inform the trial judge of the basis of the objection and afford him the opportunity to rule on it. Second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or supply other testimony. McCormick, Handbook of. the Law of Evidence, Sec. 52, p. 113,115 (2d ed. 1972); 4 Jones, The Law of Evidence, Sec. 28:2, p. 276 (6th ed. 1972). In accordance with these policies, a number of exceptions to the general rule that a party cannot complain on appeal to the overruling of a general objection or an imprecise specific objection have been created. 1 McCormick & Ray, Evidence, Sec. 25, p. 25 (2d ed. 1956). Thus, where the correct ground of exclusion was obvious to the judge and opposing counsel, no waiver results from a general or imprecise objection. McCormick & Ray, supra.

In the case at bar, the trial judge took judicial notice of “. . . all of the proceedings, and all of the documents and all of the pleas in Cause C-70-5096-LJ . . ” (the probated conviction in question). This was permissible since the prior conviction and objection had been before him. Fleming v. State, 502 S.W.2d 822 (Tex.Cr.App. 1974); Horman v. State, 423 S.W.2d 317 (Tex.Cr.App.1968); Armstrong v. State, 120 Tex.Cr.R. 526, 46 S.W.2d 987 (1932). The trial judge therefore had knowledge that the probationary period had expired. This knowledge also rendered plausible the proposition that defense counsel’s objection obviously was directed at the inadmissibility of the prior conviction because of the expiration of the probationary period. The trial judge’s action in ruling that there was no showing of the finality of the conviction supports this conclusion.

The trial judge’s determination that the record did not reflect a showing of finality was also sufficient to put counsel for the State on notice of the objection. This conclusion stems from the proposition that where the State attempts to impeach a defendant’s credibility by proof of a prior conviction, whether it be a felony or misdemeanor involving moral turpitude, the burden is on the defendant to show that the conviction was not a final conviction unless the record otherwise so reflects. Poore v. State, 524 S.W.2d 294 (Tex.Cr.App.1975); Smith v. State, 409 S.W.2d 409 (Tex.Cr.App. 1966); Herrin v. State, 97 Tex.Cr.R. 494, 262 S.W. 486 (1924). Where the defendant meets this burden or the record otherwise reflects that the conviction is not final, then an objection that the prior conviction is not final is sufficient to preserve error predicated on the basis that the conviction is not final because the probationary term has expired. Therefore, since the record re-fleets that the trial judge took judicial notice of all of the proceedings involving the prior conviction, and the probationary period of the prior conviction had expired prior to the trial of this cause, the record reflects the lack of finality of the prior conviction. Horman v. State, supra; Cannon v. State, 479 S.W.2d 317 (Tex.Cr.App.1972); Fleming v. State, 502 S.W.2d 822 (Tex.Cr.App.1973). We are unable to conclude that the objection, in light of the foregoing, did not disclose the nature of the objection to the prosecutor.

Moreover, the instant case is distinguishable from Parker v. State, 384 S.W.2d 712 (Tex.Cr.App.1964), where the defendant was impeached on cross-examination during the guilt stage of the trial with a prior probated burglary conviction. Even though the probationary period there had expired, the conviction was set aside, and the case dismissed pursuant to Article 781d, Sec. 7, V.A.C.C.P. (now Article 42.12, Sec. 7, Vernon’s Ann.C.C.P.). The court noted that under Article 732a, V.A.C.C.P. (now Article 38.29, Vernon’s Ann.C.C.P.), such an impeachment was improper. Counsel, however, merely moved for a mistrial without stating his grounds for the mistrial. The Court, in overruling defendant’s contention, stated:

“A different question would be raised had the appellant directed the trial court’s attention to his motion praying that the district attorney be instructed not to bring before the jury the fact that he had been previously convicted in the cause in which he was granted probation, the term of which had expired and the conviction set aside.” Parker v. State, supra at 714.

Also distinguishable is Goad v. State, 464 S.W.2d 129 (Tex.Cr.App.1971), where the prosecutor cross-examined the defendant during the guilt stage of the trial about a probated burglary conviction in which the probationary period had expired. A review of the record in that case reveals that counsel for the defendant objected by stating:

“We think this is improper. We think the objection is not admissible under Article 38.29 of the Texas Code of Criminal Procedure; and we ask the jury disregard that matter.”

This Court held that the objection failed to “. . . direct the court’s attention to any claim that probation had been granted and the probationary period had expired.” This Court also noted that the record, including the transcription of the court reporter’s notes of the penalty stage, failed to disclose the expiration date of the probationary period.

Both Parker, supra, and Goad, supra, are distinguishable from the case at bar. First, in Parker there was no statement of the grounds relied upon by defense counsel. Second, in Goad there was no showing in the record that the probationary period had expired. Unlike Parker, however, appellant’s counsel in this case objected on the ground that the conviction was not final. Moreover, in this case, unlike Goad, the record does reflect the expiration date of the probationary period because of the trial judge’s action in taking judicial notice of the prior conviction. The objection was sufficient to preserve the ground of error.

We now turn to the merits of appellant’s contention. Article 38.29, supra, states:

“The fact that a defendant in a criminal case, or a witness in a criminal case, is or has been, charged by indictment, information or complaint, with the commission of an offense against the criminal laws of this State, of the United States, or any other State shall not be admissible in evidence on the trial of any criminal case for the purpose of impeaching any person as a witness unless on trial under such indictment, information or complaint a final conviction has resulted, or a suspended sentence has been given and has not been set aside, or such person has been placed on probation and the period of probation has not expired. . . . ” (Emphasis added.)

The cases have established that it is error to permit impeachment during the guilt stage of the trial by use of a prior probated conviction where the probationary period has expired prior to the date of the attempted impeachment. Mills v. State, 508 S.W.2d 823 (Tex.Cr.App.1974); Nichols v. State, 494 S.W.2d 830 (Tex.Cr.App.1973); Smith v. State, 455 S.W.2d 282 (Tex.Cr.App. 1970). The trial judge clearly erred in concluding that the prior conviction could be used for impeachment.

The State, however, contends that the prior probated conviction was admissible because a motion to revoke the defendant’s probation had been filed prior to the expiration date of the probated conviction. While it is clear that the prior conviction would have been admissible had the defendant’s probation in fact been revoked, Roliard v. State, 506 S.W.2d 904 (Tex.Cr.App.1974), the issue raised by the State is one of first impression.

The record reflects that the motion to revoke and the capias were issued one day prior to the expiration of the probationary period. The capias was served on the appellant on May 23,1975, eleven and one-half months after the probationary period had expired. A copy of the motion to revoke was served on the appellant on July 17, 1975. The trial of the instant case occurred on September 15 and 16, 1975.

The decisions of this Court indicate that the filing of a motion to revoke and issuance of a capias prior to the expiration of the probationary period vest a limited jurisdiction in the trial court to hear the motion after the expiration of the probationary period. Strickland v. State, 523 S.W.2d 250 (Tex.Cr.App.1975); Coffey v. State, 500 S.W.2d 515 (Tex.Cr.App.1973); Ortega v. State, 414 S.W.2d 465 (Tex.Cr. App.1967); Ex Parte Fennell, 162 Tex.Cr. App. 286, 284 S.W.2d 727 (1955). The mere filing of a motion to revoke and issuance of a capias do not, however, automatically terminate probation. The State must prove by a preponderance of the evidence that a condition of probation was violated. Woods v. State, 533 S.W.2d 16 (Tex.Cr.App.1976); Scamardo v. State, 517 S.W.2d 293 (Tex.Cr. App.1975). Acceptance of the State’s position would elevate the filing of a motion to revoke to the status of an adjudicated finding by a court that probation could in fact be revoked. The State’s position therefore creates, at least for purposes of impeachment pursuant to Article 38.29, an irrebuttable presumption that probation would in fact be revoked merely because a motion to revoke probation had been filed. This irre-buttable presumption violates due process of law. Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973).

However, because of the positive identification of the appellant by the complainant, the appellant’s confession, and the appellant’s possession of the fruits of the robbery and the weapon used during the robbery,, we have concluded that the erroneous impeachment was harmless beyond a reasonable doubt. The appellant’s contention is overruled.

The appellant’s motion for rehearing is overruled.

DOUGLAS, Judge,

concurring in part and dissenting in part.

The appellant’s motion for rehearing should be overruled, but not for the reasons given by the majority. The objection that the State did not show a final conviction is not pertinent. No one contends that one who has been placed on probation has been finally convicted. If appellant had wanted to call to the court’s attention that probation had expired he should have made that objection.

His ground of error on appeal is different from the objection urged during the trial. His ground of error is:

“The trial court erred in permitting the State to impeach the defendant with evidence that he had been previously convicted of a crime for which he was placed on probation and the period of probation had expired, in violation of Tex.Code Crim.P.Ann.Art. 38.29 (1965).”
This is quite different from the objection:
“. . .on the ground that the question, as stated, is in violation of the Code of Criminal Procedure in that any prior conviction, which is not a final conviction cannot be used against a defendant at the guilt or innocence stage of the trial, and that there is no showing by the District Attorney’s office that it is a final conviction and can be used against the defendant in this cause.”

Different contentions on appeal from those at the trial will not be considered. Bouchillon v. State, 540 S.W.2d 319 (Tex.Cr. App.1976); Reece v. State, 521 S.W.2d 633 (Tex.Cr.App.1975), and Moore v. State, 480 S.W.2d 728 (Tex.Cr.App.1972).

Article 38.29, V.A.C.C.P., provides that a witness in a criminal case may be impeached if such person has been placed on probation and the period of probation has not expired.

In this case a motion to revoke probation was filed prior to the expiration of the probationary period. Even in view of this, the majority holds that the probationary period had expired and that the motion to revoke probation meant nothing. The court could still have revoked probation and therefore it must have been pending. It has not been shown that appellant had lived up to the terms of probation. The report of the probation officer reflects that he committed other crimes during the probationary period. It is the apparent intent of the Legislature that where one lives up to the condition of probation, he may have the disabilities connected with it set aside. See Article 42.12, Section 7, V.A.C.C.P. Probation had not been set aside.

The effect of the majority’s holding is that if a motion to revoke probation is filed during its term and a probationer cannot be found, he gains by leaving the jurisdiction or hiding out and he can testify during a trial and cannot be cross-examined as to the prior pending conviction for which he may go to the penitentiary. This is not sound in law or in logic.

In this case, the State had filed a motion to revoke probation before it had expired. This Court in many cases has held that even if the term of probation has expired, it can be revoked if the State (1) files a motion to revoke; (2) has a warrant or capias issued within the probationary period; and (3) holds a revocation hearing without undue delay. See Smith v. State, 513 S.W.2d 81 (Tex.Cr.App.1974); Coffey v. State, 500 S.W.2d 515 (Tex.Cr.App.1973).

In the present case the motion to revoke probation alleged that appellant had failed to report for three months immediately pri- or to the filing of the motion to revoke probation. Appellant’s testimony at the trial showed that he was living at one address and was claiming another address as his residence. Like presenting a ground of error differing from the objection, appellant, upon appeal only, claims lack of diligence in revoking probation.

The situation is analogous to the tolling of a limitation period in which one may be charged with an offense. Absence from the State or the pendency of a prior charge will toll the running of statute of limitations.

The majority reaches the right result for the wrong reasons.

PHILLIPS, Judge,

dissenting.

I agree that Art. 38.29, V.A.C.C.P., absolutely prohibits admissibility of the prior conviction admitted herein to impeach the appellant as a witness, but cannot concede correctness of the majority’s conclusion that such error was harmless.

All courts accept and agree as a matter of fact and law that a previous conviction of a felony or offense involving moral turpitude is a matter properly to be considered by a trier of fact in deciding whether or not to believe a witness. The prosecutor, who was present and observing the demeanor and reactions of the jury to the testimony of the witnesses, including the appellant, apparently thought that such impeaching evidence might be necessary to obtain a conviction or surely such would not have been injected over the defense objection. Where a defendant takes the stand and denies any involvement in the offense charged, for this Court to hold such evidence harmless requires an adjudication by this Court that the jury would have given greater weight to and accepted as true the evidence conflicting with the defendant’s testimony even if the defendant had not been so impeached. This Court is precluded from such adjudication by Art. 38.04, Y.A.C. C.P., which provides as follows:

“The jury, in all cases, is the exclusive judge of the facts proved and the weight to be given to the testimony.”
I respectfully dissent.

      . A collateral but important ramification of this function is to provide the trial court with an opportunity to attempt to cure any harm resulting from the action giving rise to the objection. Coleman v. State, 481 S.W.2d 872 (Tex.Cr.App. 1972) and cases cited therein.

      . We would note that proper prosecutorial preparation of a case would include a determination by the prosecutor of the status of a prior conviction. Thus, if the prosecutor was aware that the conviction had been probated, and that the probation had expired, then the attempted impeachment would have been in bad faith. Goad v. State, 464 S.W.2d 129, 133 (Tex.Cr. App.1971). The record, however, is silent to this point. For an example of the appropriate procedure where the issue of bad faith is raised, see Martin v. State, 491 S.W.2d 928, 930 (Tex.Cr.App.1973). Cf. Love v. State, 533 S.W.2d 6, 12 (Tex.Cr.App.1976) (dissenting opinion).

      . At the penalty stage, the prior probated conviction could have been admissible even though the probationary period had expired. Article 37.07, Vernon’s Ann.C.C.P.

      . This assumes, of course, that the State diligently attempts to prosecute the motion, Nick-las v. State, 530 S.W.2d 537 (Tex.Cr.App. 1975); Stover v. State, 365 S.W.2d 808 (Tex.Cr.App. 1963). Also, the right of the court to revoke probation is limited to those violations of probation alleged in the revocation motion filed prior to the expiration of the probationary period. Nicklas v. State, supra; Standly v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Cox v. State, 445 S.W.2d 200 (Tex.Cr.App.1964) (concurring opinion); McBee v. State, 166 Tex. Cr.R. 562, 316 S.W.2d 748 (1958).

      . Moreover, there are strong policy reasons to condemn this attempted circumvention of Article 38.29. The standard of proof applicable in a probation revocation proceeding is by a preponderance of the evidence. Woods v. State, supra; Scamardo v. State, supra. Given this burden, requiring the State to prosecute a motion to revoke probation and obtain a revocation of probation before a probated conviction may be used for impeachment purposes not only eliminates any potential abuse by the filing of probation revocation motions to provide impeachment evidence for an anticipated trial, but also provides substantial compliance with the policy behind Article 38.29.!


source: Caselaw Access Project

author: ODOM, Judge. DOUGLAS, Judge,

license: Public Domain

text:
    Delbert THOMPSON, Appellant, v. The STATE of Texas, Appellee.
    No. 55702.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1977.

      Anthony F. Constant, Corpus Christi, for appellant.
    John H. Flinn, Dist. Atty., Sinton, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for failure to stop and render aid following an automobile accident. Art. 6701d, Sec. 38, V.A.C.S. Appellant pled guilty before the court and evidence was received by stipulation with appellant’s consent pursuant to Art. 1.15, V.A.C.C.P. The court assessed punishment at five years, and placed appellant on probation.

One of the terms of appellant’s probation is:

“Pay restitution in the amount of $12,-000.00 to the Probation Officer of San Patricio County, Texas, for the benefit of Gary Grissom at a rate of $200.00 per month, beginning April 1, 1977, and the same day of each month thereafter until full restitution has been made.”

Appellant challenges the imposition of this condition of probation. He contends the order of restitution (1) violates due process, (2) is supported by no evidence of causation between the offense and the injury, (3) violates the constitutional prohibition of imprisonment for debt, (4) violates public policy by using the criminal justice system to enforce potential civil liability, (5) exceeds the trial court’s jurisdiction, (6) is an unreasonable condition and abuse of discretion because it takes over half of appellant’s gross income, and (7) is supported by no evidence of the damages suffered by the person compensated.

In support of his due process argument appellant cites the Michigan case of People v. Becker, 349 Mich. 476, 84 N.W.2d 833, 838, for the proposition that restitution “. . . can be imposed only as to loss caused by the very offense for which defendant was tried and convicted.” He also argues he was denied notice and a jury determination of liability and damages.

Article 42.12, Sec. 6, V.A.C.C.P., provides in part:

“The court having jurisdiction of the case shall determine the terms and conditions of probation and may, at any time, during the period of probation alter or modify the conditions; . . . Terms and conditions of probation may include, but shall not be limited to, the conditions that the probationer shall:
“h. . . . make restitution or reparation in any sum that the court shall determine; . . .”

Appellant waived his right to trial by jury in this case and applied for probation. He was thus on notice that restitution could be ordered by the trial court in the event his application for probation were granted. The centerpiece of appellant’s position is that the injuries were inflicted before the commission of the offense for which appellant was convicted. If the facts do not support appellant on this, his contention is without merit irrespective of the power to require restitution for injuries unrelated to the offense. Cf. Flores v. State, Tex.Cr. App., 513 S.W.2d 66, in which that issue likewise was not reached.

Article 6701d, Sec. 38, supra, provides in part:

“(a) The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of Section 40. . . . ”

Section 40 thereof provides:

“The driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle which is driven or attended by any person shall give his name, address, and the registration number of the vehicle he is driving and shall upon request and if available exhibit his operator’s, commercial operator’s or chauffeur’s license to the person struck or the driver or occupant of or person attending any vehicle colliding [sic] with and shall render to any person injured in such accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if such carrying is requested by the injured person.”

The evidence introduced by stipulation included appellant’s judicial confession and the statements of several witnesses. The judicial confession states:

“I, Delbert Thompson, on the 21st day of August, A.D. 1976, in San Patricio County, Texas, did then and there drive a vehicle, to-wit, an automobile, on a public road and while driving said vehicle I did strike Gary Grissom with said vehicle so driven by me, Delbert Thompson, and I did then and there and thereby injure the person of Gary Grissom, and I, Delbert Thompson, did then and there unlawfully fail to stop and render reasonable assistance to the said Gary Grissom, in this, I, Delbert Thompson, did then and there fail to stop and carry and fail to make arrangements for the carrying of the said Gary Grissom to a physician and surgeon for medical and surgical treatment, it being apparent that such treatment was necessary by reason of said injuries received as aforesaid.”

Three witnesses at the scene gave the following statements:

“When the car passed us going down the street Gary commented that it might be his sister looking for him. He walked out in the street to see. The car pulled right up to his legs and stopped, he leaned towards the car as if trying to see in, then the car moved forward knocking him down, he screamed and they began to drag him down the street. We began to chase them screaming for them to stop, they slowed down, then speeded back up until they reached the corner, they stopped at the intersection, then took off to the right on Ave. A and rolled over him then sped away.”
“The car went to the end of the road and slowly turned around. Then the car slowly approached Gary and Russell the car about to a halt [sic] Russell moved to the side and Gary leaned forward to see who was in the car, the car slowly came up on him bumped him knocking him down under the right front, Gary yelled very loud but the car did not stop it kept going. Instantly we realized what happened and began to yell but they kept going. They slowed as if they knew what had happened then drug Gary under the car to the corner of Ave. A and McCoullough Lane. They then slowed as if to see if any traffic was coming, they rolled over Gary turned right on Ave. A [sic].”
“They were driving slow. Gary and I walked to the road. I was on the edge close to my driveway, Gary was on the edge on the other side. They pulled up and I stepped aside. They pulled right up to him, coming to a near stop. Gary bent over as if he was looking in to see who it was. The car started moving, Gary yelled and I stopped back towards Alan and Cowin, about by the Murphey’s trash cans it slowed down like maybe they were looking back, then started going again, all three of us started yelling, they got to the corner and slowed down as if checking the traffic. And rolled down over Gary.”

A passenger in appellant’s car gave a statement that was introduced under stipulation, and which stated in part:

“Delbert Thompson drove in a dead end street and after he turned around he started back to the main road. At this time I saw 2 men in front of the car. Delbert Thompson was still driving and he was driving real slow, the man that was at the right front of the car put his hands on the hood of the car. I saw when the car hit him and he went under the car. Delbert Thompson stoped [sic] the car for a few seconds and then drove on, the man was under the car and I heard one quick scream I could feel the back tires spinning on the body. Delbert Thompson drove a good ways until the man came out on the rear of the car.”

The police report in evidence states that Grissom was dragged 156 feet by appellant’s vehicle as indicated by a trail of blood down the roadway from the initial accident.

The evidence set out above showed that appellant as driver of the vehicle struck Grissom, and then, instead of stopping to render aid, he drove on, dragging Grissom over fifty yards down the roadway. The witnesses outside the vehicle said the car slowed down after the initial accident, and then drove on. Appellant’s passenger stated the car stopped “for a few seconds and then drove on” after the initial accident, dragging Grissom down the roadway. Appellant’s argument that the accident was completed and the injuries suffered before and independently of the commission of the offense is not supported by the record. Appellant committed the instant offense when he failed to stop and render aid after the initial collision with Grissom. The evidence shows that after this initial, low-speed collision, appellant stopped the car or at least slowed down, and then drove on, dragging Grissom a considerable distance down the roadway and rolling over him. Restitution was ordered for injuries caused by appellant’s failure to stop and render aid.

The first ground of error is overruled.

Appellant also contends that no evidence of causation between the offense and injury was presented. This we overrule on the evidence set out and discussed under the first ground of error.

Appellant claims violation of Texas Constitution Article 1, Section 18, which provides, “No person shall ever be imprisoned for debt.” Appellant argues violation of this provision on the theory that any liability for injuries arose prior to and independently of the crime to which he pled guilty. This basis for his position is unfounded, as demonstrated in the discussion under ground of error one, above. We also observe the following notes in the Interpretive Commentary, 1 Vernon’s Ann.Tex. Const., at p. 445:

“In general, the liability to pay money growing out of contract constitutes a debt within the meaning of the constitutional guaranty. . . . Hence the phrase imprisonment for debt has no application to criminal proceedings, nor to imprisonment meted out as a punishment for violation of the laws and for a refusal to submit to the penalty imposed. Ex parte Robertson, 27 Tex.App. 628, 11 S.W. 669 (1889); Dixon v. State, 2 Tex. 481 (1847).”

This ground of error is overruled.

Appellant next asserts that restitution violates public policy. The Legislature has specifically authorized restitution as a condition of probation. See Art. 42.12, Sec. 6(h), quoted above. We hold that restitution as a condition of probation is not a violation of public policy. The ground of error is overruled.

In his next ground appellant contends the trial court lacked jurisdiction to order restitution. Art. 42.12, Sec. 6(h), supra, specifically grants this power to the court having jurisdiction of the criminal case. The contention is without merit.

Appellant also argues the order for restitution is unreasonable under the facts of this case because it takes over half of his gross income. First, probation may not be revoked for failure to pay monies when the probationer is financially unable to make payment. Art. 42.12, Sec. 8(c), V.A.C.C.P., as amended effective Aug. 29, 1977, provides:

“In a probation revocation hearing at which it is alleged that the probationer violated the conditions of probation by failing to pay compensation paid to appointed counsel, probation fees, court costs, restitution, or reparations, the inability of the probationer to pay as ordered by the court is an affirmative defense to revocation, which the probationer must prove by a preponderance of evidence.”

Second, if the payments ordered in the conditions of appellant’s probation prove to be too onerous, the court has the power to alter or modify those conditions. See Art. 42.12, Sec. 6, as quoted above. The trial court on the record before us demonstrated an awareness of this authority:

“The Court places you on probation as to the five years confinement in the penitentiary and on the condition . that you make restitution to this injured person in the amount of twelve thousand dollars, and I don’t know whether you can make it or not, but make such as you can.”
“THE COURT: Of course, I realize how much the Court has control of these things, and if it gets to where it’s an impossible burden, why the Court takes cognizance of that, and makes some adjustment.”

This ground of error is overruled.

Finally, appellant asserts there is no evidence of the damages suffered by Gris-som. The State cites evidence of Grissom’s condition at the scene and at the hospital emergency room, and asserts Grissom was in court and seen by the judge. Restitution was not defined by the Legislature. In Black’s Law Dictionary, Rev. 4th ed., we find this definition:

“Act of restoring; restoration; restoration of anything to its rightful owner; the act of making good or giving equivalent for any loss, damage or injury; and indemnification.”

We find no evidence that 112,000 is just restitution for the damages and injuries suffered by Grissom. Since the error relates to the probation condition only, and since the trial court set the condition, the cause will be remanded for a hearing to determine the amount of restitution to be ordered. Compare Bullard v. State, Tex.Cr. App., 533 S.W.2d 812, 816.

The judgment of conviction is affirmed, the amount of restitution ordered is set aside, and the cause is remanded for a hearing to determine the amount of restitution to be ordered.

DOUGLAS, Judge,

concurring in part and dissenting in part.

The opinion by the majority is correct except that part which orders the cause remanded for hearing to determine the amount of restitution to be made by appellant. After probation had been granted and while the question of restitution was being discussed, there was no question as to the amount. The only question raised was the ability of the appellant to pay the amount.

The evidence shows that the car that appellant was driving ran into Grissom and dragged him underneath for many yards. Before the car went completely over him, a passenger felt a tire spinning over Gris-som’s body. Later, an officer arrived at the scene, found Grissom in the middle of McCullough Lane and observed a large pool of blood on the road that measured three feet long and one and one-half feet wide. His face and neck were bleeding heavily. There was a hole in the chin which appeared to go to the throat area. A large amount of blood was coming from the left side of his neck and the skin was pulled away from the neck area. The lower left ear was torn from his face. He was taken to a hospital emergency room and placed on a Stryker frame. His face and neck were then surgically repaired. The doctor reported that he had suffered “horrible facial injuries. . . . ”

The officers found a pair of prescription glasses at the scene of the collision. One lens was completely shattered and the frame was bent at a ninety degree angle. The officers also recovered nine human teeth. With respect to appellant’s automobile, they discovered blood stains on the right front wheel and on the right side back to the rear axle. Hair was taken from the under part of the floorboard area and also from the rear axle area.

Since there was no question as to the extent of the injury when the trial judge heard the evidence and saw the injured party, this Court should not remand the cause for a hearing on the amount of damages. After probation had been granted, and while its terms were being discussed, appellant, through his counsel, waived any question on the amount of damages when counsel stated: “I understand fully that his damages are probably more than that.” From the above, the trial judge was authorized to assess the amount of restitution at $12,000.

      . In an informal discussion at the bench, after the probation conditions had been imposed, appellant’s counsel, in arguing that the restitution payments were too onerous for appellant, stated, “I understand fully that his damages are probably more than that.” This was not evidence, nor was it a stipulation, nor was it even an unequivocal statement of counsel’s personal opinion. It no more supports the setting of restitution at $12,000 than does the fact that the victim was present in the courtroom and viewed by the court.


author: DOUGLAS, Judge. ONION, Presiding Judge,

text:
    James Leon DURHAM, Appellant, v. The STATE of TEXAS, Appellee.
    No. 55734.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1977.

      Robert A. Scardino, Jr., Houston, for appellant.
    Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

Appellant waived trial by jury and entered a plea of guilty before the court to three counts of aggravated robbery. Punishment was assessed at twelve years on each count.

Appellant’s court-appointed counsel has filed a brief in which he states that the appeal is wholly frivolous and without merit under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). A copy of counsel’s brief and the appellate record have been delivered to appellant and appellant has been advised of his right to file a pro se brief, but none has been filed. We hold that the appeal is frivolous. However, we will consider the sufficiency of the sentences.

The indictment contained three counts of aggravated robbery.

V.T.C.A., Penal Code, Section 3.03, provides:

“When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, sentence for each offense for which he has been found guilty shall be pronounced. Such sentences shall run concurrently.”

In Parks v. State, 553 S.W.2d 114 (Tex. Cr.App.1977), the conviction on the first count was affirmed and the appeal was dismissed as to the second count because separate sentences were neither pronounced nor entered in the record.

In the present case three sentences were entered on the docket sheet by the trial judge. That complies with Section 3.03, supra. The clerk in exercising the ministerial duty filed one document instead of three.

In the present case the sentence as entered recites, in part:

“It is the order of the court that the Defendant, James Leon Durham, who has been adjudged to be guilty of aggravated robbery, as charged in the three counts of the indictment a felony, and whose punishment has been assessed at confinement in the Texas Department of Corrections for 12 years as to each charge and said Defendant shall be confined in the Department of Corrections for not less than 5 years nor more than 12 years. . .”

The docket sheet reflects that the sentences pronounced were the same as those entered. This sufficiently pronounces sentence for each offense for which appellant had been found guilty. The sentence shows that he was convicted for each count alleged in the indictment. The law requires that the terms shall be concurrent. This was done.

We hold that the one document containing the three sentences is sufficient. However, it would be better practice for three instruments to be filed.

The judgment is affirmed.

ONION, Presiding Judge,

concurring.

The single instrument purporting to be the formal sentences pronouncing judgments as to all counts is set out in part in the majority opinion and need not be repeated here. It is by no means a model to be emulated, but it does reflect the appellant was found guilty to all three counts, and unlike the instruments in Parks v. State, 553 S.W.2d 114 (Tex.Cr.App.1977), and in Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977), it assesses punishment “as to each charge.” Cf. White v. State, 543 S.W.2d 130 (Tex.Cr.App.1976). It does not, however, apply the indeterminate sentence law to all counts, but the sentences in the instrument can be reformed by this court to apply the indeterminate sentence law. See Holden v. State, 98 Tex.Cr.R. 592, 267 S.W. 275 (1924). Why the majority chooses to ignore this deficiency and thus encourages the use of such instrument is not understandable. Parks and White made clear that a judgment and a sentence should be entered as to each count of the indictment charged under the criminal episode doctrine. See Article 21.24(a), Vernon’s Ann.C.C.P., and V.T.C.A., Penal Code, §§ 3.01, 3.02 and 3.03. This is by far the better and safer practice and it avoids many problems. I would agree, however, that a single instrument, as in the instant case, may contain or incorporate separate sentences in order to satisfy V.T.C.A., Penal Code, § 3.02, but careful draftsmanship of the form by legally trained personnel will be required.

I observe that all the cases on this point to date have been from Harris County and most have involved visiting judges. The errors appear to be of a clerical nature, desirous of a “shortcut.” This court with its heavy case load should not be required to write repeatedly upon this matter. Surely some local concern by the local trial judges, the district attorney and most importantly, the district clerk, could correct this problem.

I concur in the result reached, but would reform the instrument purporting to be the sentences to apply to the indeterminate sentence law.

      . In the records reaching this court, the trial judges in pronouncing sentences or sentences in open court seem to be unaware of the provisions of V.T.C.A., Penal Code, § 3.03.


author: DIES, Chief Justice.

text:
    John FERNANDEZ, Appellant, v. Willie D. STRONG, Appellee.
    No. 8007.
    Court of Civil Appeals of Texas, Beaumont.
    June 16, 1977.
    Rehearing Denied June 30, 1977.

      J. P. Cooney, Houston, for appellant.
    Mike Lindsey, Beaumont, for appellee.
   DIES, Chief Justice.

This is a venue case. Plaintiff Willie D. Strong sued John Fernandez, defendant, in Jefferson County for injuries he allegedly received on the shrimp boat “Capt. John” while shrimping off Key West, Florida.

Defendant filed a plea of privilege to be sued in Brazoria County, Texas, which was overruled, and brings this appeal.

Defendant owns six shrimp boats, four of which (including the “Capt. John”) are registered in Freeport, Brazoria County, Texas; and the other two are registered in Key West, Florida. Defendant owns homes and maintains offices in both Freeport, Texas, and Key West, Florida. Six months of the year he resides in Freeport while his boats work the Gulf off Texas and Louisiana. The other six months he resides in Key West, Florida, while his boats work the Gulf off Key West, Florida. When in Free-port, his wife and daughter live with him, and his daughter attends school there. The same is true for the six months they reside in Key West. Defendant freely admitted he didn’t know where his residence was, and when he left either place it was always with the intention of returning again in six months. Plaintiff was hired in Freeport, but, as aforesaid, alleged that he was injured off Key West. Defendant pays taxes in both places, holds both Texas and Florida driver’s licenses, but votes in Key West. He pays his income tax in Georgia.

While the venue statute [Tex.Rev. Civ.Stat.Ann. art. 1995 (1964)] uses the term “domicile”, this term has been interpreted to require only “residence”, which is something less. Snyder v. Pitts, 150 Tex. 407, 241 S.W.2d 136, 139 (1951). In Snyder, supra, it was determined that while a person may have only one domicile, he may still have several residences. We are not called upon here to decide which is defendant’s domicile, but undoubtedly he is a resident of Freeport, Brazoria County, Texas. Indeed, his ties with Brazoria County are much stronger and more permanent than were Snyder’s with Dallam County.

In 1906 in Taylor v. Wilson, 99 Tex. 651, 93 S.W. 109, the Supreme Court held that a citizen of New York domiciled in New York had established a residence for venue purposes in Jefferson County, Texas, while retaining his New York domicile.

Defendant being a resident of Texas, though he also is a citizen and resident of Florida, may invoke privileges conferred by venue laws of Texas. Covington v. Eskridge, 430 S.W.2d 589, 590 (Tex.Civ.App.—San Antonio 1968, no writ).

There is yet another reason why defendant is entitled to have this cause removed to Brazoria County. Plaintiff served defendant under Tex.Rev.Civ.Stat. Ann. art. 2031b (1965). That statute makes foreign residents doing business in Texas appoint the Texas Secretary of State as agent for service by operation of law. But it (art. 2031b) does not set the Texas County of venue in such cases. That is accomplished by Tex.Rev.Civ.Stat.Ann. art. 1995 § 3 (1964) (county in which plaintiff resides). Here we have no evidence where the plaintiff resides. The order of the trial court overruling the plea of privilege is reversed, and this cause is ordered transferred to the District Court of Brazoria County for trial. Costs are adjudged against appel-lee Willie D. Strong.

REVERSED and REMANDED with instructions.


author: CHADICK, Chief Justice.

text:
    Henry G. DAVENPORT et al., Appellants, v. COMMISSIONERS’ COURT OF DENTON COUNTY, Texas, Appellees.
    No. 8482.
    Court of Civil Appeals of Texas, Texarkana.
    July 26, 1977.
    Rehearing Denied Nov. 1, 1977.

      L. A. Nelson, Nelson & Lewis, Denton, Michael J. Whitten, Gray, Whitten & Loveless, Denton, for appellants.
    William P. Phillips, Jr., Coleman, Phillips & White, Denton, John E. Lawhon, County Atty., Denton, for appellees.
   CHADICK, Chief Justice.

This is an election contest case. The Commissioners’ Court of Denton County, Texas, canvassed the returns of a local option election held in the incorporated City of Denton, Texas, and declared a majority of the qualified voters within the City voted “For the legal sale of Beer and Wine” and entered orders appropriate to the declaration and findings associated therewith. The affirmative vote was found to be 4,832 and the negative vote 4,250. After the official result of the election was declared by the Commissioners’ Court, an election contest was instituted in the court below and judgment therein denied the contestants relief and upheld the validity of the election.

The trial judge filed findings of fact and conclusions of law pursuant to Tex.R.Civ.P. 296, et seq. A conclusion reached was that the contestants “wholly failed to invoke the jurisdiction” of the trial court. This conclusion appears to have been based upon two grounds. These were that the contestants in this proceeding failed to name as contes-tee the county attorney of Denton County, Texas, and that no evidence was introduced tending to prove that any contestee was given the notice of contest required by Tex. Election Code Ann. art. 9.03 (1967).

The written notice and statement by which a contest of a local option election is initiated was given to each member of the Commissioners’ Court as a contestee. The Election Code provides such notice and statement may be given to “. . . the officer who declared the official result of said election, or one of them, as the case may be, .” Tex.Election Code Ann. art. 9.31 (1967). Jurisdiction did not fail for want of notice and a statement served upon statutorily designated contes-tees, that is, the officers composing the Commissioners’ Court which declared the official result of the election. See Hooker v. Foster, 117 Tex. 237, 1 S.W.2d 276 (Tex. Comm’n App.1928, opinion adopted); Jordan v. Overstreet, 352 S.W.2d 296 (Tex.Civ. App. Beaumont 1961, no writ); Sanford v. Commissioners’ Court, 170 S.W.2d 846 (Tex. Civ.App. Dallas 1943, no writ); Maddox v. Commissioners Court of Palo Pinto County, 222 S.W.2d 475 (Tex.Civ.App. Eastland 1949, no writ); McCasland v. Steele, 496 S.W.2d 937 (Tex.Civ.App. Waco 1973, no writ).

Jurisdiction could not be properly denied on the second ground either. A copy of the contestants’ petition accompanied the citation served upon the contestees by the sheriff of Denton County. The adequacy of the petition and citation as notice and statement required by art. 9.03 is not questioned. It was established in Messer v. Cross, 26 Tex.Civ.App. 34, 63 S.W. 169 (1901, no writ), that a petition and citation containing the elements of notice and grounds of contest required by art. 9.03 are substantial compliance with the notice and statement requirements of the article. See also Sanford v. Commissioners’ Court, supra, and authorities therein cited. The contestees point out that the contestants did not introduce the petition and citation into evidence. Such omission is not an incurable lapse as formal introduction was not absolutely necessary. A trial court takes notice of the record and its contents in the proceedings before it. 1 McCormick & Ray, Texas Law of Evidence, See. 185 (2d ed. 1956).

The contestants’ third point of error is understood and interpreted to assert that the evidence in the record establishes conclusively that absentee ballots used in the election were improperly worded and void. Contestants argue that the clear and undisputed evidence is that 809 absentee ballots were cast, that the wording of the negative proposition on each such ballot failed to comply with the strict and mandatory language prescribed therefor by Tex.Penal Code Aux.Laws art. 666-35 and 666-40 (1974), that the qualified voters who cast such void ballots were denied the privilege of voting. And in this connection, contestants contend that if such voters had been allowed to cast valid ballots their votes were sufficient in number to have materially changed the result of the election.

Contestees counter the point and insist, first, that complaint is groundless because contestants failed to prove the form and content of the absentee ballots actually cast; and second, contestees insist that under the terms of Tex.Penal Code Aux.Laws art. 666-40a (1974) the final outcome of the election would not be affected if all absentee ballots were found to be void.

The posture of the parties requires determination of whether the record shows as a matter of law the form and content of the absentee ballots actually cast violated the strict and mandatory language prescribed therefor, and, second, whether the outcome of the election would be affected if all the absentee ballots were void.

The county clerk testified that Exhibits No. 7 and No. 8 were samples of the ballots from two packets of 500 ballots each used in the absentee voting box. On voir dire examination by the contestees the clerk said that the ballots came from the printer in packets of 500 and that she examined and took as a sample the top ballot in each of the two packets before setting aside the packets for use at the absentee ballot box. She did not examine the ballots that were actually cast and could not say what their form and content might have been or that all printed ballots in the packets were identical with the samples in evidence. The trial judge found “That Contestants wholly failed to establish by any admissible evidence that absentee ballots which were used were illegal or improperly worded.”

The sample ballots in evidence contained an instruction to the voter in English and Spanish printed on its face, as well as the issue the ballot submitted to the voters. The instruction and issue in the English language were as follows:

“INSTRUCTION: Scratch or mark out one statement so that the one remaining indicates the way you wish to vote.”

Such instruction was followed by the issue in its affirmative and negative aspect, viz:

“FOR THE LEGAL SALE OF BEER AND WINE”
“AGAINST THE SALE OF BEER AND WINE”

The governing statute, Tex.Penal Code Aux.Laws art. 666-40 (1974), states that in a local option election such as this the issue to be submitted to the voter shall be:

“For the legal sale of beer and wine” and “Against the legal sale of beer and wine”

On comparison it is apparent that the sample ballot omitted the word “legal” from the statutorily dictated statement of the negative issue. Tex.Penal Code Aux.Laws art. 666-35 (1974) commands that:

“(b) Notwithstanding any provision of the general election laws, the issue to be voted on shall be printed on the ballot in the exact language stated in Section 40 of this Act, and the ballot shall be marked as provided herein.”

McGraw v. Newby, 496 S.W.2d 250 (Tex. Civ.App. Beaumont 1973, no writ), a case growing out of an election where off premise consumption of alcoholic beverages was at issue, held that it render a ballot void to omit the word “legal” from the negative side of the issue. The Beaumont court relied upon Smith v. Counts, 282 S.W.2d 422 (Tex.Civ.App. El Paso 1955, no writ), a case concerned with a defective petition for a local option election. The El Paso court’s opinion showed reliance was placed upon the reasoning and conclusions expressed in several prior attorney general opinions and quoted with approval from one of those opinions wherein it was said: “. . . specific statutory wording must be used in the petition, in the election order and on the ballots, in order to have a valid election.” (Emphasis supplied.)

The explicit provisions of art. 666-35, the attorney general’s interpretation referred to and the decided cases are persuasive that omission of the word “legal” from the negative side of the issue would render void any ballot wherein such omission appeared that was cast in the absentee ballot box. The next and more difficult task is to determine whether the omission occurred in the absentee ballots actually cast.

The contestees assert that the evidence only shows that two uncast ballots, that is, Exhibits No. 7 and No. 8, failed to comply with statutory precepts. The clerk testified that she did not examine the ballots actually cast or those in the packets under the top or sample ballot and could not say what was printed on the other ballots in each packet. There is no testimony other than the clerk’s bearing upon the issue, though the record does show the county clerk was designated absentee voting clerk in the order calling the election. Contestants insist that the clerk’s testimony shows as a matter of law that all votes cast in the absentee ballot box are deficient in the particular shown by the sample ballot. For evidence to establish a fact conclusively it must be uncontradicted and of such nature that reasonable minds cannot differ with the conclusion to be drawn therefrom. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914); Ross v. Green, 135 Tex. 103, 139 S.W.2d 565 (1940); Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898). The question for this court is, would the minds of unprejudiced men of ordinary intelligence differ either about the weight to be given to the evidence of the form and content of the absentee ballots or the deduction to be drawn from it; if not, the form and content of such ballots are established as a matter of law. Western Assur. Co. of Toronto, Canada v. Busch, 203 S.W. 460 (Tex.Civ.App. Austin 1918, no writ); McWhorter v. Humphreys, 161 S.W .2d 304 (Tex.Civ.App. Texarkana 1941, writ ref’d w. o. m.); State v. Texas Bitulithic Company, 453 S.W.2d 866 (Tex.Civ. App. Austin 1970, writ ref’d n. r. e).

It is an undisputed fact that the clerk was an election official in charge of election supplies and the official printed ballots used in the absentee box. The two sample ballots taken from separate packets are identical and appear to have been taken at random. Nothing in the record suggests the printer’s packets contained ballots unlike the samples. The processes of the court were at the call of either set of parties to develop the exact form and content of the ballot actually cast and both overlooked or chose not to do so. In the context of the meager evidence it is concluded that the minds of reasonable men would agree that all ballots in the two packets were the same as the samples in evidence.

The 809 ballots cast in the absentee ballot box were void and the voters casting such ballots were therefore disenfranchised. However, the contestants argue that the affirmative proposition carried in the absentee ballot box and that if all the absentee ballots were thrown out the result of the election would not be changed. The proposal argued gives effect to ballots that were absolutely void. In contemplation of law those casting the invalid ballots in the absentee ballot box did not vote. To tally pro or con the void votes for the purpose of determining whether or not the absentee ballots would have materially affected the election would be to give effect to void ballots and to ignore the statutory command that the issue be presented in a specified way.

It must be concluded that qualified voters were denied the privilege of casting valid ballots in the election in such numbers that had they been allowed to vote their ballots might have materially changed the result of the election. Contestants’ point of error number 3 is sustained.

Other points of error will not be discussed as the conclusion reached on point of error number 3 will require reversal and rendition of the judgment of the trial court. Accordingly, the judgment of the trial court is reversed and judgment is rendered that the election held on April 3, 1976, is void and of no legal import, force or effect.

       Opinion by Chief Justice Robert W. Hamilton, later a justice of the Texas Supreme Court.


author: COLEMAN, Chief Justice.

text:
    MEYERLAND COMPANY, Appellant, v. PALAIS ROYAL OF HOUSTON, INC., Appellee.
    No. 16880.
    Court of Civil Appeals of Texas, First District.
    Aug. 18, 1977.

      Fulbright & Jaworski, Jack E. Urquhart, Houston, for appellant.
    Hirsch, Westheimer, Block and Wilk, Houston, for appellee; Ernest J. Altgelt, III, Seth Freedman, Houston, of counsel.
   COLEMAN, Chief Justice.

This is a suit by a lessor to enjoin the continued use by a lessee of an advertising sign alleged to have been erected in violation of restrictions contained in the lease agreement between the parties. The judgment was entered on a jury verdict. It will be affirmed.

A lease agreement entered into between Meyerland Company, lessor, and Palais Royal of Houston, Inc., lessee, provided that signs erected by the lessee “shall conform to the sign criteria hereinafter set forth and that such signs shall conform with the standards set by the lessor or the shopping center as a whole.” Following this provision the lease contains several specific sign restrictions.

Meyerland Company brought this suit seeking injunctive relief on the ground that one of Palais Royal’s signs violated the height restrictions.

The cause was submitted to the jury on four special issues, and in answer to the first special issue the jury failed to find that the sign constituted a distinct and substantial breach of the regulations encompassed in the lease agreement. In answer to the second issue submitted the jury failed to find that prior to the erection of the sign in question Meyerland established sign standards for the shopping center as a whole other than those specifically contained in the lease agreement. The remaining issues were conditionally submitted and not answered.

Appellant, plaintiff in the trial court, alleged that the sign in question violated the terms of the lease agreement. Therefore it had the burden of proof on issues one and two submitted by the trial court. On this appeal it is the appellant’s burden to show that the evidence conclusively establishes that the sign breached the regulations found in the lease agreement or that it violated an existing standard established for the center as a whole. No evidence or insufficient evidence points are not proper ways to attack unfavorable jury findings on which the appellant has the burden of proof. Smith v. Safeway Stores, Inc., 433 S.W.2d 217 (Tex.Civ.App.-Tyler, 1968, writ ref’d n.r.e.); Weiser v. Hampton, 445 S.W.2d 224 (Tex.Civ.App.-Houston [1st] 1969, writ ref’d n.r.e.). In its brief appellant asserts that the undisputed evidence established that there were sign standards other than those in the lease and that these were violated by Palais Royal. We consider that the points asserted in appellant’s brief are to the effect that a breach of the lease agreement is conclusively established under the evidence. O’Neil v. Mack Trucks, Inc., 542 S.W.2d 112 (Tex.1976).

This controversy arose when Palais Royal began preparation to erect a sign on the outside wall of the premises which it leased from Meyerland Company in Meyer-land Plaza. The letters “P” and “R” were in excess of eleven feet in height. Mrs. Hess, the manager of Meyerland Plaza, objected to the erection of the sign for the reason that it exceeded the standards provided in the lease contract. When Palais Royal continued with their efforts to erect the sign, this suit was filed.

At the trial Mrs. Hess testified that the lessor had set standards for signs to be erected by lessees in Meyerland Plaza. She stated that no sign could be over four feet in height and occupy more than 80% of the linear frontage of the store. She later stated that what she meant was that the letters in the sign should be no more than four feet in height. She testified that the standards were not reduced to writing. There is no evidence that this particular standard was ever orally communicated to Palais Royal prior to the time that the sign in question was manufactured.

There is evidence that with the exception of TSO, Penney’s, and Palais Royal, the other signs that have been erected in the shopping center contain letters approximately 48 inches in height or smaller. There is no clause in the leases with TSO and Kroger’s granting the lessor control over the size of their signs. Penney’s occupies a two story building and its lease authorizes a larger sign.

Palais Royal had previously occupied different premises in the shopping center, and a plat attached to their lease specified that the sign would be 48 inches in height. The signs which they used on those premises were approximately six feet in height, and they were erected with the express permission of the lessor. Mrs. Hess testified that prior to the time that the three story building was constructed and leased to Penney’s, the size of signs was controlled by clauses requiring the landlord’s consent or by plans and specifications which were attached to the leases. After that time sign criteria were included in the lease agreement.

In the preliminary discussions for a lease agreement conducted by Mrs. Hess with Palais Royal, she furnished Palais Royal certain information concerning the signs under a title reading “Sign Criteria for Entire Premises.” The same criteria were included in the lease subsequently executed in Paragraph XXI.

Mr. Fuchs, the Executive Vice President of Palais Royal and chief operating officer, testified that he did not understand that there were any restrictions on the signs facing the parking lot. The only discussion he had concerning the sign criteria was the specific approval given to the size of the signs used on their old premises and the information received from Mrs. Hess previously referred to under the title “Sign Criteria for Entire Premises.” Two witnesses were presented by the defendants who qualified as experts in graphic design. They testified that they had inspected the signs that had been erected at Meyerland Plaza to see if they could recognize any overall standard for signs in the center. Each testified that they were not able to discern any standard from visual inspection.

None of the criteria set out in Paragraph 21 of the lease agreement relates to the size of the letters in the sign. The Palais Royal' sign in question does not violate any of the criteria set out in the lease agreement. The only one of the criteria relating to the size of signs applied to signs erected on a mall.

Mrs. Hess testified that at one point there. was a four foot restriction on the height of signs and at another point there was a four foot restriction on the height of the letters on the signs. There was evidence that the plaintiff permitted some variation over the four foot standard in the height of signs as well as the height of letters in the signs. A reasonable person might conclude from the evidence that the question of the height of the letters and signs to be erected in the shopping center as a whole was a matter determined by negotiations between the lessor and the various lessees, and that no standard had been set for the shopping center as a whole. The evidence does not conclusively establish the existence of standards for the center as a whole.

In January of 1976 Meyerland Company sent certain interrogatories to Palais Royal. Interrogatory No. 8 requested that the defendant specify the names of any and all witnesses that it would call upon to testify at the trial. Interrogatory No. 10 requested that the plaintiff identify any and all persons who have any knowledge regarding whether or not there were any standards with regard to the size of signs used on exterior upper walls facing the shopping center parking lot. Number 8 was answered by naming Mr. Bernard Fuchs, and number 10 was answered by naming Mrs. Leota M. Hess and Mr. Bernard Fuchs.

The case went to trial in September 1976. Some two weeks prior to that time Palais Royal employed two expert witnesses, Morton Levy, an architect, and James Bishop, a graphics designer, to inspect the premises in preparation for giving testimony at the trial. Palais Royal did not supplement the answers made to the interrogatories. When Meyerland learned that these witnesses would be called it objected to “the introduction of any witnesses not indicated in the Answers to the Interrogatories” and in the alternative moved for a continuance. The court overruled the motion and allowed the witnesses to testify.

The interrogatories were sent pursuant to Rule 168, T.R.C.P. Interrogatories may relate to any matters which can be inquired into under Rule 186a, T.R.C.P. Rule 186a permits the discovery of “information relating to the identity and location of any potential party and of persons, including experts, having knowledge of relevant facts, and the reports, factual observations and opinions of an expert who will be called as a witness . . .’’In regard to expert witnesses Rule 168, supra, specifically provides “a party may be required in his answers to identify each person whom he expects to call as an expert witness at the trial and to state the subject matter concerning which the expert is expected to testify.” Interrogatory No. 8 did not specifically require Palais Royal to identify the persons whom it expected to call as expert witnesses.

There is room for differences of opinion as to whether Interrogatory No. 10 includes in its scope witnesses which might have opinions as to whether or not sign standards could be discernible by inspection of the shopping center. It might be considered that the Interrogatory related only to questions of persons having knowledge of standards which had been communicated by the owners of the shopping center.

Rule 168, supra, requires a party to supplement his answer to interrogatories when he knows that the answer though correct when made is no longer true and the circumstances are such that a failure to amend the answer is in a substance a knowing concealment. Since Rule 168, supra, contemplates that a party serving interrogatories require that the other party identify persons he expects to call as an expert witness, he must specifically request the names of such expert witnesses. The trial court did not err in admitting the testimony of the expert witnesses.

The question of whether a continuance should be granted to a party during the course of a trial is addressed to the sound discretion of the trial court. The test is whether the trial court’s decision was arbitrary or unreasonable. Bennett v. Northcutt, 544 S.W.2d 703 (Tex.Civ.App.-Dallas 1976, no writ history). We find that the trial court did not abuse its discretion in refusing to grant the motion for continuance.

The appellant complains that the trial court’s refusal to grant its motion for mistrial, based on testimony of Mr. Fuchs in which he referred to attempts to resolve the dispute over the size of the sign, was error. Mr. Fuchs testified:

. .we tried to resolve it. As a matter of fact I gave Mrs. Hess a revised drawing.”

The trial court immediately instructed the jury not to consider that question and answer for any purpose. It could be presumed that this instruction was heeded by the jury and that no harm resulted by reason of the improper testimony. Bituminous Casualty Corporation v. Jackson, 360 S.W.2d 900 (Tex.Civ.App.-Beaumont 1962, writ ref’d n.r.e.).

Affirmed.

      .“Lessor covenants that Lessee shall have the right to place signs or other advertising devices, electrical or non-electrical, on or about the demised premises, providing that all such signs shall conform to the sign criteria hereinafter set forth and that such signs shall conform with the standards set by Lessor for the shopping center as a whole. Lessor expressly approves the signs which Lessee is currently using on its existing buildings. The criteria for such signs shall be as follows:
      1. There shall be no flashing, rotating or moving signs or markers of any type.
      2. There shall be no signs painted on the exterior surface of any building.
      3. There shall be no free-standing or pylon signs other than (i) a pylon sign to be maintained by Developer displaying only the name of the Shopping Center, and (ii) a pylon sign to be maintained by J. C. Penney Co., Inc. in connection with the Penney Additional Building.
      4. All signs which front on the Center Mall, or any other mall, shall be (i) not more than four (4) feet in height, except in the case of any building having two (2) or more floors above ground level, (ii) approximately flush with the wall of the building to which affixed, (iii) of a length which does not exceed 80% of the linear frontage of the store upon which it fronts, and (iv) of a design which is uniform with other signs similarly placed.
      5. Signs which are under building canopies shall be (i) at right angles to the store front, (ii) of a design which is uniform with other signs similarly placed under building canopies, and (iii) not more than four and one half (4V2) feet wide and twelve (12) inches high.
      6. There shall be no roof-top signs, except those already installed.
      7. No signs will be permitted at the rear of any buildings except in the case of stores with customer entrances opening directly on to the parking areas.”


author: CLAYTON, Justice.

text:
    Larry D. SLAYTON, Appellant, v. Iris Marie SLAYTON, Appellee.
    No. 8012.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 15, 1977.

      Larry C. Myers, Houston, for appellant. Earl M. Black, Port Arthur, for appellee.
   CLAYTON, Justice.

Appellee, Iris Marie Slayton, filed this suit against Larry D. Slayton, in the 60th District Court of Jefferson County, Texas. Appellant filed a plea of privilege to be sued in Harris County, Texas, the county of his residence. Appellee filed a controverting plea seeking to sustain venue in Jefferson County under the provisions of Subdivisions 7,10, and 11 of Tex.Rev.Civ.Stat.Ann. art. 1995 (1964). The trial court overruled appellant’s plea of privilege.

Appellee, Iris Slayton, was the wife of Clarence Slayton, deceased, who died April 24, 1976. Appellant, Larry Slayton, is the son of Clarence Slayton by a prior marriage. Clarence Slayton resided and was domiciled in Jefferson County, Texas, and there is a pending probate of a will which disposes only of his interest in the homestead located in Jefferson County, Texas.

Appellee has been appointed independent executrix of the estate.

Subdivision 7 of Tex.Rev.Civ.Stat.Ann. art. 1995 (1964) provides as follows:

“Fraud and Defalcation — In all cases of fraud, and in all cases of defalcation by public officers, suit may be brought in the county where the fraud was committed or where the defalcation occurred, or any of such suits may be brought where the defendant has his domicile.”

For appellee to sustain venue of this suit in Jefferson County under the provisions of this subdivision, she must allege and prove a prima facie case of actionable fraud.

Appellee testified that her husband was killed in an automobile accident on the 24th of April 1976. Appellant, upon news of his father’s death, immediately went to Port Arthur, which was the residence of appellee and her deceased husband. Appellant immediately began to dispose of his father’s estate, such as the assets of the used automobile business which was done with appel-lee’s consent. She further testified that her husband’s will could not be found, and appellant was anxious to settle his interest in his father’s estate. The will was subsequently found, but it only disposed of the homestead.

Appellant told appellee that her part of the estate was valued at something between $30,000 and $210,000 and that she would be required to pay approximately $30,000 to $40,000 in inheritance taxes.

Mrs. Slayton testified that because of her state of shock, appellant prevailed upon her to give him $25,278.30 that belonged to her and the estate.

The record is not clear as to the value of the estate, but it reflects that the estate consists of a home (the community interest being valued at $10,000), the automobile business valued at $5,000 (the community interest being $2,500), and various other items, the value of which is not stated. The total estate shows a community interest valuation of approximately $12,650, plus a portion of the $27,278, which was community property, the exact amount not being shown in the record. The estate also consists of some real estate in another county which appellee concedes would be inherited by appellant under the laws of descent and distribution. It is apparent from the evidence of Mrs. Slayton that appellant was not selling his interest in this part of the estate.

According to the testimony of appellee, the value of the estate was represented by appellant to be between $30,000 and $210,-000, and the record reflects that it was worth approximately $12,650, that such representation was false that she relied thereon, that she paid $27,278 for his portion of the estate in reliance upon such false representation, and that damage resulted to her as a result of the fraud and misrepresentation. Also, the fraudulent statement was made in Jefferson County.

Appellee sued for the recovery of the amount paid to appellant in her capacity as personal representative of the estate of her deceased husband and in her individual capacity for the reason that part of the money was her separate property and the balance was community property.

The evidence presented by appellee shows the constituent elements of fraud. Wilson v. Jones, 45 S.W.2d 572 (Tex.Comm.App. 1932, holding approved); Custom Leasing, Inc. v. Texas Bank & T. Co. of Dallas, 516 S.W.2d 138, 143 (Tex.1974), and Oilwell Division, United States Steel Corp. v. Fryer, 493 S.W.2d 487, 491 (Tex.1973).

There being no findings of fact and conclusions of law requested or filed by the trial court, every issue raised by the evidence must be resolved in favor of the trial court’s judgment. .Coker v. Harris, 281 S.W.2d 100 (Tex.Civ.App.-Dallas 1955, writ ref’d n.r.e.); Oxford Development Co. v. Eppes, 422 S.W.2d 583 (Tex.Civ.App.-Cor-pus Christi 1967), no writ).

Appellee plead and proved a prima facie case of fraud in Jefferson County, and the trial court was correct in overruling appellant’s plea of privilege.

AFFIRMED.


author: CORNELIUS, Justice.

text:
    Jerry Paul McGEE and James Berry, Appellants, v. EUREKA LIFE INSURANCE COMPANY OF AMERICA, Appellee.
    No. 8495.
    Court of Civil Appeals of Texas, Texarkana.
    Sept. 20, 1977.

      Peter D. Williamson, Houston, for appellants.
    Charles Rob Wilson, Nelson, Montgomery & Robertson, Wichita Falls, for appellee.
   CORNELIUS, Justice.

Jerry P. McGee and James Berry were named defendants in an action for debt brought against them in Wichita County by Eureka Life Insurance Company of America, and they appeal from the order of the District Court overruling their pleas of privilege to be sued in Harris County where they ^reside. Appellee contended and the District Court found that the suit was based upon a written contract performable in Wichita County and that venue there was proper by virtue of Subdivision 5(a) of Article 1995, Tex.Rev.Civ.Stat.Ann. (Supp. 1976-1977).

The petition alleged that appellant McGee entered into a contract with appellee by the terms of which he would act as the company’s general agent and would also have authority to appoint other agents; appellant Berry and others were appointed as such agents pursuant to the aforesaid contract; appellee agreed to make certain loans or advances to the agents based upon the annualized commissions produced by them, said loans to be made upon the agents’ written applications therefor; the agent’s contract, which was incorporated into the loan agreements, provides that the agents shall save appellee harmless from any loss on account of such loans; the agent’s contract further makes appellant McGee responsible for all money loaned or advanced to those agents appointed by McGee; and that McGee and Berry were indebted to appellee in the sums of $8,357.97 and $1,447.60 respectively.

When appellants filed their pleas of privilege appellee answered by controverting affidavit which, in addition to incorporating the petition, further alleged that McGee’s general agent’s agreement and Berry’s agent’s contract obligated the appellants to repay their respective loans and advances to appellee in Wichita County. Copies of the two contracts were attached to the controverting plea. At the hearing of the pleas of privilege appellee introduced the two agents’ contracts into evidence and produced the testimony of Mr. Walk, Vice President and Agency Director of appellee. Mr. Walk testified that he was familiar with the pleadings and that the sums sought to be recovered represented monies advanced to appellants by appellee during the time they were its agents; part of the monies accrued because of lapsed policies on which appellants had received advance commissions; and that the amounts owed had been calculated according to schedules and provisions contained in the agent’s contracts. He also testified that when an agent applies for an advance commission, the loan or advance is embodied in a written financing statement or loan agreement which is separate from, but is subject to, the agent’s contracts. Concerning the “loan agreements,” Mr. Walk further testified:

“Q Is the agreement between the parties as to these advances is it set down in the writing?
A No, not in an individual agreement. The company financing agreement is in writing, which is communicated to all agents who participate in it in a verbal manner; then they acknowledge it by their acceptance of the check, which is identified as a loan and by acceptance of the agreement which transmits the check which identifies it as advance against future commissions.
Q Is there any provision in this — in this agreement that it shall be subject to the terms of the — of the agent’s and general agent’s contract?
A Yes, it’s all controlled by the terms of the contract which stipulates as you can see in the provisions of the contract his liability for all monies advanced to him or all monies chargeable to him because of refund of premiums or charges that occur to him.”

The District Court found, inter alia, that appellee made the advances to appellants based upon the annualized premiums to be earned under their agent’s contracts, and that as such contracts provided that all monies due appellee would be payable in Wichita County, the suit was maintainable there under the provisions of Subdivision 5(a) of Article 1995.

Because the loan agreements identified by Mr. Walk were not introduced into evidence, appellants contend that appellee failed to prove the written contracts upon which its suit was based. We cannot agree. It is undisputed that appellants’ right to loans or advance commissions arose originally by virtue of the provisions of their agent’s contracts. Those contracts specifically provided that appellants were obligated to repay appellee all of such commissions which were not actually earned. The District Court could reasonably deduce from the evidence that the loan agreements were merely the records or itemizations of the amount of the indebtedness which had accrued by virtue of the agents’ contracts. Even if they were in the form of promissory notes, such loan agreements, unless they constituted a novation, would be only evidence of, or collateral security for, the primary contractual indebtedness. As such they would be analogous to new or renewal notes given for a pre-existing indebtedness. See Schwab v. Schlumberger Well Surveying Corp., 145 Tex. 379, 198 S.W.2d 79 (1946); Cooper Grocery Co. v. Strange, 18 S.W.2d 609 (Tex.Com.App.1929, judgment adopted); 11 Am.Jur.2d, Bills and Notes, Sec. 915, p. 958; 10 C.J.S. Bills and Notes § 444, p. 976. Absent a novation, the creditor may, if he desires, sue on the original obligation. Kern v. Smith, 164 S.W.2d 193 (Tex.Civ.App.Texarkana 1942, writ ref’d w. o. m.); Darby v. Farmers’ State Bank, 253 S.W. 341 (Tex.Civ.App.Amarillo 1923, no writ); Bibb v. Bluffdale State Bank, 164 S.W. 417 (Tex.Civ.App.Fort Worth 1914, no writ); 11 Am.Jur.2d, Bills and Notes, Sec. 915, p. 958. Novation is never presumed. Schwab v. Schlumberger Well Surveying Corp., supra; Darby v. Farmers’ State Bank, supra. It is a matter to be proved, and the party asserting it has the burden of proof. Darby v. Farmers’ State Bank, supra. It must be established by express agreement of the parties or by acts clearly showing an intention to work a novation. Cooper Grocery Co. v. Strange, supra. There is no evidence of novation in this record, but the evidence does support the District Court’s conclusion that the true basis of appellee’s suit was the obligations imposed upon appellants by the original agent’s contracts, and that the indebtedness arising therefrom had not been supplanted by the subsequent loan agreements. As the evidence revealed that at least part of the indebtedness represented advance commissions paid on premiums which were subsequently refunded when policies were can-celled, and the agent’s contracts specifically provide that such sums shall be repaid to appellee in Wichita County, venue was maintainable there pursuant to Subdivision 5(a) of Article 1995. Middlebrook v. Bradley, 86 Tex. 706, 26 S.W. 935 (1894); Baxter v. Wetzel, 511 S.W.2d 540 (Tex.Civ.App.El Paso 1974, no writ).

There remains the question of the adequacy of appellee’s pleadings. As noted, appellee pleaded the agent’s contracts as the source of the obligations, and the controverting affidavit specifically referred to those contracts and attached them as exhibits. Appellants did not specially except to the pleadings. The pleadings gave fair notice and under the circumstances must be considered sufficient. Labay v. Amicable Life Ins. Co., 261 S.W.2d 476 (Tex.Civ.App. Waco 1953, no writ).

The judgment of the trial court is affirmed.

      . “5. Contract in writing. — (a) Subject to the provisions of Subsection (b), if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”