author: DENTON, Justice.

text:
    W. Sale LEWIS, Savings and Loan Commissioner, et al., Petitioners, v. JACKSONVILLE BUILDING AND LOAN ASSOCIATION, et al., Respondents.
    No. B-5814.
    Supreme Court of Texas.
    July 21, 1976.
    Rehearing Denied Sept. 29, 1976.

      John L. Hill, Atty. Gen., Thomas M. Pol-lan, Asst. Atty. Gen., Larry E. Temple, and George E. Ramsey, III, Austin, for petitioners.
    Heath, Davis & McCalla, Dudley D. McCalla, Austin, for respondents.
   DENTON, Justice.

This is a suit by Jacksonville Building and Loan Association and Rusk Federal Savings and Loan Association, the respondents here, to set aside the order of the Savings and Loan Commissioner approving and granting the charter application of the Cherokee Savings and Loan Association to be operated in Jacksonville, Texas. The trial court upheld the Commissioner’s order. The court of civil appeals, by a majority opinion, reversed and rendered judgment setting aside the Commissioner’s order. 531 S.W.2d 433. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

The respondents contend here, as in the court of civil appeals, that the order granting the charter application was invalid on three grounds: (1) the order was not supported by substantial evidence; (2) the order did not contain concise and explicit statement of the findings in the order as required by Article 852a, § 11.11(4) Vernon’s Texas Civil Statutes Annotated; and (3) the Commissioner failed to render his decision within the 45 day period required by the rules and regulations. The court of civil appeals sustained respondent’s third contention, but did not rule on ⅝ contention that the order was not supported by substantial evidence or that the order did not meet the requirements of § 11.11(4) of the Texas Savings and Loan Act.

The initial question is whether or not the requirement of Rule 1.9 of the Rules and Regulations for Savings and Loan Associations specifying a decision on pending applications within 45 calendar days after the date the hearing is finally closed, is mandatory and the failure to act in that period of time invalidates the Commissioner’s order. The facts material to this issue are uncontested. Application was made by a group of local citizens to the Savings and Loan Commissioner for a charter for a new Savings and Loan Association to be located in Jacksonville, Texas, under the name of Cherokee Savings and Loan Association. Shortly thereafter, Tyler Savings and Loan Association made application for a branch office to be located in Jacksonville. The respondents here opposed both applications. The Savings and Loan Commissioner consolidated the two applications for hearing. A full hearing on both applications was held on August 6 and 7, 1974. By letter of October 10, 1974, 64 days after the hearing closed, the Commissioner announced his decision to approve the charter application and deny the branch application. The order approving the charter application for Petitioner Cherokee Savings and Loan "Association was issued November 18, 1974, 103 days after the hearing closed.

Rule 1.9 of the Rules and Regulations for Savings and Loan Associations reads as follows:

1.9 The Commissioner shall render his decision within forty-five (45) calendar days after the date the hearing is finally closed if the hearing was held in accordance with Section 1.3 above, or after the date on which the hearing is dispensed with, as the case may be provided, however, in eases of conflicting applications meeting the requirements of Section 2.14 of the Texas Savings and Loan Act, where one or more subsequent applications are filed before the first application is heard, the Commissioner may delay his decision on all such competing applications until forty-five (45) days after the last such application has been heard, [emphasis ours]

Article 342-114, Vernon’s Texas Civil Statutes Annotated authorizes the Savings and Loan Section of the Finance Commission to promulgate general rules and regulations not inconsistent with the Constitution and statutes of this State. The question is one of construction of the administrative rule. Valid rules and regulations promulgated by an administrative agency acting within its statutory authority have the force and effect of legislation. Texarkana and Ft. S. Ry. Co. v. Houston Gas & Fuel Co., 121 Tex. 594, 51 S.W.2d 284 (1932); Northeast Tarrant County Water Authority v. Board of Water Engineers, 367 S.W.2d 720 (Tex.Civ.App., 1963, no writ). Administrative rules are ordinarily construed like statutes.

There is no absolute test by which it may be determined whether an administrative rule or regulation is mandatory or directory. The prime object is to ascertain and give effect to the intent of the rule or regulation. Although the word “shall” is generally construed to be mandatory, it may be and frequently is held to be directory. In determining whether the administrative agency intended the provision to be mandatory or directory, consideration should be given to the entire rule, its nature, objects and the consequences which would result from construing it each way. Provisions which do not go to the essence of the act to be performed, but which are for the purpose of promoting the proper, orderly, and prompt conduct of business, are not ordinarily regarded as mandatory. If the provision directed doing of a thing in a certain time without any negative words restraining it afterwards, the provision as to time is usually directory. See Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943 (1956); Thomas v. Groebl, 147 Tex. 70, 212 S.W.2d 625 (1948); Markowsky v. Newman, 134 Tex. 440, 136 S.W.2d 808 (1940); Federal Crude Oil Company v. Yount-Lee Oil Company, 122 Tex. 21, 52 S.W.2d 56, 61; Sutherland, Statutory Construction 3rd Ed., Vol. 3, p. 95, Sec. 5813 et seq., 82 C.J.S. Statutes § 376 et seq., p. 869.

The court of civil appeals based its ruling upon Bay City Federal Savings & Loan Association v. Lewis, 474 S.W.2d 459 (Tex.1971). There this Court interpreted the requirements of Article 852a § 11.11(4) Vernon’s Texas Annotated Civil Statutes, that the findings of fact in the Commissioner’s order if set forth in statutory language shall be accompanied by concise and explicit statement of underlying facts which support the findings. After reviewing the order, which approved a charter application for Savings and Loan Association, we held that the order was invalid where the Commissioner failed to set forth precise and explicit statements of underlying facts supporting the findings that the statutory requirements had been complied with. This statutory mandate requiring recitation of underlying facts in support of statutory findings in Bay City was clearly a requirement of substantive law. The reliance by the majority of the court of civil appeals on Bay City is misplaced.

There are numerous cases in other jurisdictions that have passed upon this question. In Muskego-Norway Consolidated Schools Joint School District v. Wisconsin Employment Relations Board, 32 Wis.2d 478, 151 N.W.2d 84 (1967), the court held that a statute requiring the State Employment Relations Board to file its findings and decision within 60 days after the closing of a hearing was held to be directory and not mandatory. In Carrigan v. Illinois Liquor Control Commission, 19 Ill.2d 230, 166 N.E.2d 574 (1960), the Illinois Supreme Court was considering certain provisions of the Liquor Control Act. The court held that under a statute providing that within 20 days after service of any order or decision of the Liquor Control Commission upon any party to a proceeding, such party may apply for a rehearing and the commission shall receive and consider such application for rehearing within 20 days from the filing thereof. The court held that that portion of the statute concerning rehearing within 20 days is merely directory, and failure of the commission to pass upon the application for rehearing within 20 days did not deprive the commission of jurisdiction. In Huffman v. Kite, 198 Va. 196, 93 S.E.2d 328 (1956), the court held that the language of a statute providing that appointments to School Trustee Electoral Board are to be made by the Circuit Court or judge within 30 days of July 1, 1950, and every four years thereafter and that vacancies shall be filled within 30 days, is not mandatory but only directory, notwithstanding use of “shall”, and the fact that the court failed to make the appointment within 30 days of July 1, 1954. For similar holdings see Koehn v. State Board of Equalization, Department of Alcoholic Beverage Control, 166 Cal.App.2d 109, 333 P.2d 125 (1958); Village of Port Chester v. Industrial Commissioner, 32 Misc.2d 64, 222 N.Y.S.2d 779 (N.Y.Sup., 1961); and Allen County Department of Public Welfare v. Ball Memorial Hospital Association Inc., 253 Ind. 179, 252 N.E.2d 424 (1969).

Rule 1.9 does not provide, either expressly or by implication, that the Commissioner’s order filed more than 45 days after the hearing is finally closed, becomes voidable upon appeal. The rule contains no word restricting the action of the Commissioner after the expiration of 45 days after the close of the hearing. No legal consequences are spelled out for the failure of the Commissioner to render his decision within the specified time.

The purpose of the rule is to promote prompt and orderly consideration and action by the Savings and Loan Commissioner. It is not intended to fix a time limitation upon the power of the commission to render decisions after expiration of the 45 days mentioned, or to invalidate a tardy decision. We, therefore, hold the 45 day provision of the Rule 1.9 is directory, and that the failure of the Commissioner to render a decision within that time period will not, of itself, invalidate the Commissioner’s order.

Respondents further contend by counterpoint that the order of the Commissioner granting the charter application of Cherokee Savings and Loan was invalid, because there was not substantial evidence to support the Commissioner’s order on the standard of public need and a sufficient volume of business to indicate a profitable operation.

Orders of the Savings and Loan Commissioner are reviewed to determine whether they are supported by substantial evidence. If there is substantial evidence in the record supporting the findings, the order must stand even though the Commissioner might have decided differently from what the reviewing court may have decided. Gerst v. Guardian Savings and Loan Association, 434 S.W.2d 113 (Tex.1968); Lewis v. Gonzales County Savings and Loan Association, 474 S.W.2d 453 (Tex.1971).

At the hearing before the Commissioner, Edwin Brown, an organizing director; John Ament, a Jacksonville attorney; Roland Christie, a building contractor in Jacksonville; W. D. Waller, an organizing director; Dr. L. J. Spellman, Assistant Director of Finance and Public Affairs at The University of Texas at Austin, and Dr. Robert Mettlen, an economist at The University of Texas at Austin, testified in support of the application. George L. Barber, Jr., President of the Jacksonville Building and Loan Association; William Tosh, President of Rusk Federal Savings and Loan Association, Rusk, Texas, and Dr. George William Berry, an economist, were witnesses in opposition. It was established that indicators reflected a growth in population of Cherokee County since the 1970 census. The total work force in the county had increased during this period from 1970 to 1973, and the total motor vehicle registration in the county during that same period increased at an average annual rate of 5.23 per cent. The record shows that the total number of persons employed in Cherokee increased from 11,500 in 1970 to 12,020 in 1973, an increase of 4.52 per cent. Unemployment during that same period decreased from 500 to 400. Dr. Spellman characterized these work force estimates as a strong indication of the economy of the county. The total number of manufacturing plants in Cherokee County increased from 53 in 1963 to 72 in 1973. In the city of Jacksonville alone this number increased from 39 to 59 during this same period. Records in evidence show the county’s gross sale of tangible personal property increased from over 83 million in 1968 to 152 million in 1973. The annual growth rate between 1968 and 1973 was 12.77 per cent. The total bank debits for the city of Jacksonville nearly doubled between 1968 and 1973. As population, employment and business activity increased in Cherokee County in recent years there has also been a substantial increase in income and earnings. The record shows a total personal income in Cherokee County, as reported by the United States Department of Commerce, of $62,204,000 in 1967 and $89,-622,000 in 1971, an increase of over 44 per cent between 1967 and 1971. Additional evidence of the economic base and economic growth in Cherokee County was found in the savings and deposit increase experienced by the financial institutions of the county. Total bank deposits in Cherokee County stood at $28,614,000 as of June 30, 1966; by June 30, 1970 the total bank deposits had increased to $43,682,000; by June 30, 1974, they had increased to $69,671,000. Total time and savings deposits of individuals, partnerships and corporations in Cherokee County Banks stood at $5,537,000 in 1966, $15,035,000 in 1970, and $29,834,000 as of June 30, 1974. These kinds of deposits increased by more than five-fold since 1966, and nearly doubled between 1970 and 1974.

It was shown that the two existing Savings and Loan Associations presently in Cherokee County showed healthy increases in recent years. Jacksonville Building and Loan Association had a total savings of $28,814,000 at the end of 1969, and by 1973 the total savings of that association had increased to $43,035,000, an increase of almost 50 per cent during the four-year period. Rusk Federal Savings and Loan Association located in Rusk, Texas, had a total savings of $12,317,000 at the end of 1969. These savings grew to reach $15,406,000 in 1973, an increase of over 25 per cent in the four-year period. The total of savings and loan savings in time and savings deposits of individuals, partnerships and corporations in the banks in Cherokee County, was $55,-270,000 at the end of 1969. The combined totals in these two categories increased to $85,378,000 by the end of 1973, an increase of over 50 per cent during this four-year period. The record shows that there was a continuous increasing loan demand within Cherokee County during recent years. The deed of trust recordings for Cherokee County show a constant growth. In 1971 there were 826 separate recordings with a dollar amount of $50,000 or less in Cherokee County; and the total amount of all these recordings was $8,223,914.00. Jacksonville Building and Loan Association was shown as mortgagee on 229 of these recordings in a total dollar amount of $1,915,647.00, Rusk Federal Savings and Loan Association was shown as mortgagee on 47 of these recordings at a total dollar amount of $558,211.00. Other Savings and Loan Associations were shown as mortgagee on 34 recordings in a total dollar amount of $458,915.00, and banks were shown as mortgagee on 215 recordings in a total dollar amount of $2,325,343.00. The proponent’s economic experts, Dr. Spellman and Dr. Mettlen, testified that based upon all the evidence which they presented, and which was in the record at the time they testified, there was a public need for the Cherokee Savings and Loan Association. The record shows that the volume of loan business and potential loan business in Cherokee County was also sufficient to indicate a profitable operation by Cherokee Loan Association. The increasing building activity throughout the county and mortgage loan activity, as reflected by the statistics found by the Commissioner from the record before him, evidence that availability of business. From all the facts before the Commissioner, he concluded and found there is a sufficient volume of loan business in Cherokee County to indicate a profitable operation by Cherokee Savings and Loan Association.

Respondents offered extensive evidence in opposition to the petitioner’s application for a charter. The underlying thrust of the evidence, presented largely by officials of competing savings and loan associations and an economic expert, is to the effect that Cherokee County’s economy had not improved to the extent that an additional savings and loan association was indicated, and that the existing lending agencies were adequately serving the area.

A review of the record leads us to the conclusion that there is substantial evidence to support the Commissioner’s order granting the charter application of the Cherokee Savings and Loan Association.

Finally the argument is made that the Commissioner’s order is not in compliance with Article 852a, § 11.11(4) Vernon’s Texas Civil Statutes Annotated in that it does not contain a concise and explicit statement of the underlying facts supporting the findings. A review of the order reveals a clear compliance with the statute. Full statements of the facts which support the Commissioner’s findings are included in the order. We find the order to be in full compliance with Section 11.11(4) of the Texas Savings and Loan Act.

The judgment of the court of civil appeals is reversed and the judgment of the trial court, upholding the order of the Commissioner, is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    W. Sale LEWIS, Savings and Loan Commissioner, et al., Petitioners, v. NACOGDOCHES SAVINGS AND LOAN ASSOCIATION et al., Respondents.
    No. B-5818.
    Supreme Court of Texas.
    July 21, 1976.
    Rehearing Denied Sept. 29, 1976.

      John L. Hill, Atty. Gen., Thomas M. Pol-lan, Asst. Atty. Gen., Larry E. Temple, Watkins, Ledbetter & Ramsey, George E. Ramsey, III, Austin, for petitioners.
    Heath, Davis & McCallas, Dudley D. McCalla, Austin, for respondents.
   DENTON, Justice.

This is a companion case to our Cause No. B-5814, W. Sale Lewis, et al. v. Jacksonville Building and Loan Association, et al., decided this day, Tex., 540 S.W.2d 307. The cases were submitted and argued together in this Court.

This suit is by Nacogdoches Savings and Loan Association, and First Federal Savings and Loan Association of Nacogdoches, Texas, to set aside the order of the Savings and Loan Commissioner approving and granting the charter application of Timberline Savings and Loan Association to be operated in Nacogdoches, Texas. The trial court upheld the Commissioner’s order. The court of civil appeals, by a majority opinion, reversed and rendered judgment setting aside the Commissioner’s order. 531 S.W.2d 429.

The question concerning the construction of Rule 1.9 of the Rules and Regulations for Savings and Loan Associations is the same presented in Jacksonville Building and Loan Association. The disposition of the question in that case controls the disposition of the question here.

The contentions that the order is not reasonably supported by substantial evidence, and that the order violated Section 11.11(4) of the Savings and Loan Act, are also the same as those presented in Jacksonville Building and Loan Association. The evidence favorable and unfavorable to the requisite statutory findings was developed at considerable length by the testimony of both lay and expert witnesses including statistical data and charts which pertain to the City of Nacogdoches and surrounding area. We will not summarize the evidence in this companion case; however, we have concluded from a study of the record that there is substantial evidence to support the Commissioner’s order. We further conclude that the Commissioner’s order, which closely follows the Commissioner’s order in form and substance in Jacksonville, clearly complies with the requirements of Section 11.-11(4) of the Savings and Loan Act.

The judgment of the court of civil appeals is reversed and the judgment of the trial court upholding the Commissioner’s order is affirmed.


author: DOUGLAS, Judge.

text:
    Clifford E. CHUDLEIGH, Appellant, v. The STATE of Texas, Appellee.
    No. 51170.
    Court of Criminal Appeals of Texas.
    June 30, 1976.
    Rehearing Denied Sept. 15, 1976.

      Marvin O. Teague, Houston, on appeal only, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and Terry G. Collins, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for “receiving and concealing stolen property.” The jury assessed punishment at ten years and a $5,000 fine, probated.

In 1971, appellant owned an automobile wrecking yard at 9514 Mykawa Road in Houston known as C&M Auto Storage or C&M Used Cars. Carlton Jones, a co-defendant, was an employee at the yard.

On Feburary 5, 1972, Officer Box of the Pasadena Police Department went with an informant to appellant’s business to look for stolen cars. Carlton Jones was on the lot. The informant pointed out four cars which he said were stolen. The officer took down the vehicle identification numbers. Officer Box received verification from the National Criminal Information Center Computer in Washington that these automobiles were stolen. On February 7, 1972, Officer Box returned to the lot with Officer McKinney of the Houston Police Department and others to execute a search warrant. While on the lot, they met Carlton Jones. Appellant arrived on the lot after a telephone call from Jones. The police checked the lot for stolen cars. There were approximately 1,000 cars on the lot at that time.

Officer McKinney testified that between twenty to twenty-five of the cars checked had been reported stolen. He also stated that about fifteen of the cars had no vehicle identification numbers stapled anywhere on their exterior. (The vehicle identification numbers normally found on the dash or door of a car will be referred to in this opinion as the “serial number”; the number located somewhere on the frame of a car will be referred to as the “confidential number”.) The officers then located the confidential numbers on the cars in the lot with missing serial numbers.

When a check was made with the Motor Vehicle Division of the Highway Department, from six to eight of the vehicles with missing serial numbers were found to be currently registered. The police located these cars. They found that the serial numbers on these cars were the same as the confidential numbers on the cars found on appellant’s lot.

The police then took down the confidential numbers of the currently registered cars and found that these cars had been reported stolen in the past. Officer McKinney testified that only two of the stolen ears found on appellant’s lot had a tow-slip. Such a slip would have shown that the car had been towed into the yard on police orders.

One of these cars without a serial number had a confidential number which was found to be registered to a Roel Fernandez in Houston. The police located this car at his address and towed it to the police station. At the station they checked the automobile’s confidential number. The confidential number did not match the serial number located on the exterior of the car. The serial number was VIN # 21569S151781; the confidential number was VIN # 21869S310237.

The records of the Motor Vehicle Division of the Highway Department showed that the car with VIN # 21869S310237 was a 1962 four-door Chevrolet registered to George Cleek of Houston. The records of the Motor Vehicle Division showed that the car with VIN # 21569S151781 had been registered to an Earl M. Hailey and that title had been transferred from Hailey to C&M Used Cars and then to Roel Fernandez. The title indicated that this car was a 1962 four-door Chevrolet. VIN # 21569S151781 was the confidential number found on a wrecked and inoperable 1962 Chevrolet located on appellant’s lot.

Mrs. Earl Hailey testified that she wrecked her 1962 Chevrolet in August of 1971. She and her husband decided to assign the title of their car to C&M Used Cars for towing it away. She delivered the title to the lot around the first part of August, 1971. The title was signed over to them by her husband. Mrs. Hailey testified that when title was relinquished the car was heavily damaged and not, in their opinion, worth repairing.

Roel Fernandez testified, through an interpreter, that on November 26, 1971, he bought a 1962 four-door Chevrolet from C&M Used Cars. He testified that a man filled out the documents transferring title and he only signed his name. The documents reflect that Carlton Jones signed the seller’s affidavit and that appellant notarized it. The documents also show that the car sold to Fernandez had been owned by Earl Hailey. The car which Fernandez purchased was operable when he bought it.

Appellant testified that he was the sole owner of C&M Used Cars and that Carlton Jones worked for him. He related that he entered on the record the receipt of the Hailey car. He vaguely remembered the transaction on the sale of a car to Fernandez. He did remember that Fernandez had a smart interpreter with him. Appellant testified that he filled out the application for a certificate of title for Fernandez and notarized his signature. He also notarized the signature of Earl Hailey and dated it November 24, 1971 for the assignment of title to the dealer. His records showed that the Hailey car was delivered to him August 4, 1971. He filled out the assignment papers of the car to Fernandez and signed his name as notary after the signature of Carlton Jones, his agent. This was dated November 26, 1971.

Upon being questioned about the 20 or 25 stolen cars on his lot, he stated that his counsel had introduced evidence that there were more than 20 or 25 stolen cars on the lot and he got tow-in tickets on those. (The check of the records by the officers showed only one or two cars were there which had a tow-in slip for them.)

Appellant also testified that Fernandez was probably the one who changed the identification number of the car after he had bought it.

On re-direct examination appellant testified that he attended Texas A & M from 1952 through 1959 and received three engineering degrees. He had worked for Brown and Root for six years in their electrical engineering department and had worked for another company as chief electrical engineer before becoming partner and later, owner of C&M Autos.

In grounds of error five and six, appellant contends that there was insufficient evidence to show that appellant knowingly received stolen property. The Cleek car was on appellant’s lot at the time of the sale to Fernandez. The vehicle identification number had been changed to that of the Hailey car which had been wrecked and was still on the lot at the time of the search. Appellant filled out the papers for the sale of the car. He did not put the date on the transfer of the Hailey car to him until November 24,1971 even though it had been delivered to him August 4, 1971. The evidence set out above is sufficient to show that appellant possessed and knew the car which was sold to Fernandez was stolen.

Knowledge that property was stolen can be shown by circumstantial evidence. Changing of the vehicle identification number is evidence of concealment. A person can be guilty of concealing stolen property if after receiving it he conceals the property after learning it was stolen. McBride v. State, 490 S.W.2d 560 (Tex.Cr.App.1973). Under all of the evidence, the jury was warranted in its conclusion that appellant knew the car was stolen and thereafter concealed it and later sold it to Fernandez. See McBride v. State, supra; Potter v. State, 481 S.W.2d 101 (Tex.Cr.App.1973).

In grounds of error seven and eight appellant contends that there was no evidence that the automobile sold to Fernandez was actually stolen from George Cleek, the registered owner. The widow of George Cleek testified that her husband died in July of 1973. She testified as follows:

“Q. (Prosecutor) Will you please direct your attention to the month of June, 1971, ma’am, and tell the court and the jury whether or not the car belonging to your husband was stolen?
“A. Yes. It was stolen.”

This evidence was not objected to. There was no motion to strike the testimony. This with the other evidence set out above is sufficient evidence to support a finding by the jury that George Cleek’s automobile had been stolen.

In grounds of error one through four appellant argues that the trial court committed fundamental error by giving an erroneous instruction to the jury during the punishment stage of the trial which caused a void verdict. Although the offense in this case occurred while the old penal code was in effect, appellant elected to be punished under the 1974 penal code.

The charge given to the jury at the punishment stage was as follows:

“. . .If you find beyond a reasonable doubt the value of property was Two Hundred Dollars or more but less than Ten Thousand Dollars you will find the defendant guilty of a third degree felony.
“If you find beyond a reasonable doubt the value of the property was more than Twenty Dollars but less than Two Hundred Dollars you will find the defendant guilty of a Class A Misdemeanor.
“You are instructed that the punishment for third degree felony is any term of years in the penitentiary of not less than two years nor more than ten years and/or a fine up to Five Thousand Dollars. Therefore, you will assess the punishment, upon said finding of guilty, at any term of years not less than two years nor more than ten years in the Texas Department of Corrections and/or a fine up to Five Thousand Dollars.
“You are instructed that the punishment for Class A Misdemeanor is a fine not over Two Thousand Dollars, or not over one year, in jail, or both fine and jail.”

During jury deliberations, the jury sent a request for further instruction to the judge:

“Is it necessary that we fill in years and amount of fine. Or can we assess a fine.
/s/ A. M. Taylor Foreman”

The judge replied to the request:

“ . . . You are instructed that in answer to your question, the charge furnished you on Page one provides for the punishment. You may assess a fine only. You may assess confinement only, or you may assess a fine and punishment of confinement, as you may see fit, based upon the evidence before you.
/s/ Miron A. Love Judge”

Appellant contends that the judge erred in telling the jury that they could assess a fine only. Appellant argues that for a third degree felony, V.T.C.A., Penal Code, Section 12.34, provides for a prison term and a fine, but not for a fine only.

There was no objection to the court’s reply to the jury’s request for further instruction. The jury assessed a prison term and a fine. This verdict was permissible punishment for a third degree felony. No reversible error is presented because appellant has not shown how he was harmed by the erroneous instruction. Daniels v. State, 527 S.W.2d 549 (Tex.Cr.App.1975). This was beneficial and not harmful to appellant. Grounds of error one through four are overruled.

In his ninth and tenth grounds of error appellant contends that the trial court erred in not following the jury’s assessment of punishment. The jury’s verdict on punishment reads as follows:

“ . . and assess his punishment at confinement in the Texas Department of Corrections for a period of 10 years, and/or a fine of $5,000.00; we further find that the defendant has never been convicted of a felony in this State or any other State, and has never heretofore been given a probated sentence, and we recommend that the sentence given above in this case be probated by the Court,
/s/ Foreman”

The judge’s probation order required that the fine be paid within the twenty-day period prior to any motion for new trial. Where the jury recommends probation for the sentence and the fine, the trial court cannot order that the fine be paid. Shappley v. State, 520 S.W.2d 766 (Tex.Cr.App.1975).

In Balli v. State, 530 S.W.2d 123 (Tex.Cr.App.1975), this Court in a statement not necessary to the disposition of the case wrote that a punishment of ten years’ imprisonment plus a fine was unauthorized in probation cases.

The pertinent parts of Article 42.12, V.A. C.C.P., The Adult Probation and Parole Law, are as follows:

“B. Probations
“Sec. 3. The judges of the courts of the State of Texas having original jurisdiction of criminal actions, when it shall appear to the satisfaction of the court that the ends of justice and the best interests of the public as well as the defendant will be subserved thereby, shall have the power, after conviction or a plea of guilty for any crime or offense, where the maximum punishment assessed against the defendant does not exceed ten years imprisonment, to suspend the imposition of the sentence and may place the defendant on probation or impose a fine applicable to the offense committed and also place the defendant on probation as hereinafter provided. In all eases where the punishment is assessed by the Court it may fix the period of probation without regard to the term of punishment assessed, but in no event may the period of probation be greater than 10 years or less than the minimum pre scribed for the offense for which the defendant was convicted. Any such person placed on probation, whether in a trial by jury or before the court, shall be under the supervision of such court.
“Sec. 3a. Where there is a conviction in any court of this State and the punishment assessed by the jury shall not exceed ten years, the jury may recommend probation for a period of any term of years authorized for the offense for which the defendant was convicted, but in no event for more than ten years, upon written sworn motion made therefor by the defendant, filed before the trial begins. When the jury recommends probation, it may also assess a fine applicable to the offense for which the defendant was convicted. . . . ” Effective date June 14, 1973. (Emphasis added)

After construing both Sections 3 and 3a together, it is apparent that the Legislature intended that probation could be granted by the judge for any term up to ten years’ imprisonment and in addition a fine could be imposed. The statute provides that the term of probation could in no event be greater than 10 years or less than the minimum for the offense for which the defendant was convicted.

Section 3a provides that the jury may recommend probation in no event for a term of more than 10 years and “when the jury recommends probation (up to 10 years), it may also assess a fine applicable to the offense for which the defendant was convicted.”

The intent of the Legislature, from the above sections, is that probation for a period up to 10 years may be assessed and a fine may also be assessed. The maximum punishment referred to in the statute applies to imprisonment only.

In following the language in the Balli case, supra, courts could face the problem of determining what is more than 10 years’ punishment for probation purposes. Would a term of 9 years and 363 days plus a fine of $5,000 be more than ten years, probated?

We conclude that the court was in error in stating in the Balli case that ten years’ probation plus a fine is unauthorized. To the extent that Balli is in conflict with this opinion, it is overruled.

The judgment is reformed to show that the $5,000 fine is probated to conform to the jury’s verdict.

As reformed, the judgment is affirmed.


author: GUPTON, Judge. ONION, Presiding Judge ROBERTS, Judge

text:
    Larry Dwight BOUCHILLON, Appellant, v. The STATE of Texas, Appellee.
    No. 51669.
    Court of Criminal Appeals of Texas.
    June 30, 1976.
    Rehearing Denied Sept. 15, 1976.

      Frank W. Sullivan, III, Fort Worth, for appellant.
    Tim C. Curry, Dist. Atty., and Marvin Collins, Asst. Dist. Atty., Fort Worth, Jim D. Yollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GUPTON, Judge.

The offense is burglary of a building under V.T.C.A., Penal Code, Sec. 30.02; the punishment, enhanced under V.T.C.A., Penal Code, Sec. 12.42(b), life.

Although not raised by the brief, we note that appellant executed a waiver of the right to appeal on October 16, 1974, after he had been sentenced. Seven days later, on October 23, counsel filed notice of appeal, withdrawing the prior waiver of right to appeal. On that same date the court ordered the statement of facts be prepared and furnished to appellant and appointed counsel. Since the trial court consented to withdrawal of the waiver of right to appeal within ten days after sentencing, the appeal is properly before this Court. Reed v. State, 516 S.W.2d 680, Tex.Cr.App. Cf. Ex parte Dickey, Tex.Cr.App. (No. 51,405, decided May 4,1976).

On February 16, 1974, at approximately 9:00 p. m., an officer of the Fort Worth Police Department responded to a silent burglar alarm at the William James Middle School in Fort Worth. Upon his arrival, he walked around the building, checking the doors and windows. He found a window ajar approximately one inch, raised it and put his head inside, at which time he heard breaking and dropping sounds. After several minutes, he shut the window and walked to the other side of the building. He saw a white male, (later identified as Dan Bouehillon) and ordered him to halt. While the man was being frisked, he said, “My baby brother is inside. Please don’t kill him.” As the officer was walking Dan Bouehillon to his patrol car, he observed a second man (later identified as Larry Bou-chillón) walking away from the school and apprehended him also.

Other officers arriving on the scene in response to the alarm testified to finding an open door, a door with pry-marks and a broken exterior window pane. Inside the building, they found an interior office door with a broken window pane and on the first floor a dolly with two electric typewriters and an adding machine. A room by room search of the building failed to disclose any other suspects. A screwdriver with the tip broken off and a sock were found in Dan Bouchillon’s right coat pocket.

Appellant contends that the prosecutor improperly commented on appellant’s failure to testify in his opening argument at the guilt-innocence stage:

“MR. CHANEY: Now the law also instructs that the failure of the defendants to testify should not be taken as a circumstance against him and, of course, in this case they did not testify and you should follow this court’s instruction and you should not consider that as any evidence _ _ _
MR. BLANKENSHIP: Your Honor, we’re going to object to this line of argument as being improper. He’s commenting to the fact that neither Defendant in this case testified.
THE COURT: I’ll overrule the objection.
MR. CHANEY: The only thing that I can say in relation to that comment is: You have an obligation and the State expects you to fulfill that obligation in following the Court’s charge . .

Appellant argues this language is closely akin to that held to warrant reversal by this Court in Brumbelow v. State, 122 Tex.Cr.R. 198, 54 S.W.2d 528. In that case the appellant did not testify in his own behalf and the assistant district attorney, after criticizing the appellant for not producing witnesses to explain how he acquired money to purchase an automobile, said:

“I am not talking about defendant’s failure to take the witness stand and tell you where he got the money, but his failure to produce witnesses to tell you where he got it. The court tells you, you should not consider his failure to testify and we do not want you to.”

However, language used in the instant case is more similar to that found in Hardy v. State, 496 S.W.2d 635, 638, Tex.Cr.App.:

“Now another thing that is under our Constitution and jurisprudential system, the defendant’s failure to testify cannot be taken as evidence against him. He is accorded that privilege, and he has exercised that.”

That statement by the district attorney in Hardy was held harmless error in that it “did no more than paraphrase the charge of the court.” Hardy, supra, at page 638. Although here the prosecutor did specifically refer to the appellant’s failure to testify, he did so in the context of his paragraph by paragraph explanation of the court’s charge. He did not ask the jury to consider the appellant’s failure to testify against them, but rather cautioned the jury not to do so. Short v. State, 511 S.W.2d 288 (Tex.Cr.App.)

Further, appellant complains that the error was compounded in the State’s closing argument:

“MR. BUCKNER: . . . And he says you must exclude — you, the jury, must exclude the hypothesis that the Defendants were walking home. Well, why? I ask you. Why should you exclude it? Is there any evidence that they were walking home? Certainly not. And he hollers about me going outside the record. I didn’t hear anybody say that they were walking home.
MR. BLANKENSHIP: Your Honor, we want to object to this line of argument as being outside the record. There was testimony that Dan Martin Bouchillon was' walking south at the time that he was arrested and that would be consistent with the testimony of the witness, Mrs. Bouchillon, who stated she lived — the house which was—
THE COURT: I’ll overrule the objection. The jury will recall what the testimony is in that regard.
MR. BUCKNER: Thank you, Your Hon- or.
THE COURT: Okay.
MR. BUCKNER: You stop and think of if anybody said that they were walking home . . .” (Emphasis Added.)

The objection made at trial was that the argument went outside the record; on appeal appellant contends that this is a further comment on appellant’s failure to testify. The ground of error presented on appeal must be the same as the objection raised at trial. Nothing is presented for review. Williams v. State, 531 S.W.2d 606 (Tex.Cr.App.); Reece v. State, 521 S.W.2d 633 (Tex.Cr.App.). However, even if the ground of error alleged had been the same as the trial objection, it is not clear that this language is a comment on appellant’s failure to testify. To warrant reversal, the language must be of such character that, when considered from the jury’s standpoint, it would necessarily be taken as comment on accused’s failure to testify. See Bird v. State, 527 S.W.2d 891, Tex.Cr.App. and cases cited therein. This ground of error is overruled.

Appellant’s second ground of error complains of the admission of a “prison packet” which he contends contains hearsay and irrelevant information. There was no hearsay objection raised at trial:

“MR. BLANKENSHIP: . . . [W]e object ... for the reason that it contains judgments and sentences in causes which are not alleged in the indictment and are not relevant to the issue at bar . . . They are reasonably calculated to elicit information — supply information to the jury to arouse and inflame the cool reflection and passion of ordinary human beings so as to bias them unduly against the defendants in this cause.”

Nothing is presented for review because the hearsay ground of error does not comport with the trial objection. Williams, supra; Reece, supra. Additionally, the trial objection did not specify which portions of the lengthy prison packet were objectionable. It was not error to overrule an objection that was too general to advise the trial court of that portion of the exhibit to which the objection was directed. Boss v. State, 489 S.W.2d 582, Tex.Cr.App.; Burton v. State, 471 S.W.2d 817, Tex.Cr.App.

Appellant contends the trial court erred in overruling appellant’s motion to quash the indictment due to the disqualification of two grand jurors returning the indictment. The record reflects that a grand jury commissioner appointed her daughter-in-law and her husband’s niece as grand jurors. Appellant contends “a violation of the anti-nepotism statute renders a grand juror morally unfit under Art. 19.08, V.A.C.C.P.” Appellant’s challenge to the array of the grand jury was not timely. Further, we find no merit in this contention.

Appellant has filed two pro se briefs raising additional grounds of error. We have reviewed appellant’s contentions and find only one ground of error which needs to be discussed in the interest of justice. See Art. 40.09, Sec. 13, V.A.C.C.P. Appellant alleges the trial court erred in denying his request for three additional peremptory challenges and he was forced to accept as jurors three persons whose names did not appear on the jury list for the week of October 14,1974, when the trial was had. The record reflects these three jurors had been summoned to appear prior to the week of October 14, but for some reason their service was postponed by the trial judge to the week of the instant trial. This procedure is proper upon a request from a juror. The contention is overruled.

The judgment is affirmed.

ODOM, J., concurs in the results.

ONION, Presiding Judge

(concurring).

I concur in the results but do not feel that the majority has properly addressed itself to the last ground of error discussed.

In a pro se brief appellant complains the trial court erred in denying his request for three additional peremptory challenges and in refusing subsequently to dismiss the jury as chosen because he had been forced to accept three persons as jurors whose names did not appear on the jury list for the week of October 14, 1974, when the trial was conducted. The record reflects that two of these jurors had been summoned for the week of October 7, 1974, and one for the week of September 30, 1974. Their jury service was postponed to the week of October 14, 1974.

Article 2120, Vernon’s Ann.C.S., as amended (Acts 1971, 62nd Leg., p. 2801, ch. 905, § 10), provides:

“The court may hear any reasonable sworn excuse of a juror, and may release him entirely or until some other day of the term; provided, however, the court shall not excuse any juror for economic reasons unless all parties of record are present and approve such excuse.”

In Lopez v. State, 437 S.W.2d 268 (Tex.Cr.App.1968), the action of the Bexar County District Courts, in compliance with Article 2120, supra, to see that jurors whose service was postponed served as jurors on another day, was commended.

It does not appear to be the thrust of appellant’s pro se brief that prospective jurors who are summoned for one week cannot serve another week if their service is validly postponed. It is his argument that Tarrant County had adopted a plan for the selection of persons for jury service with the aid of mechanical or electronic means under the provisions of Article 2100a, Vernon’s Ann. C.S. He contends that the plan adopted by the Commissioners Court, upon the recommendation of the District Judges, provides that if the service of a prospective juror is postponed from one week to another that the name of such juror is required to be typed onto the list for the week to which the service was postponed, the original list having come from the computer. It is his contention that the names of the three jurors in question were not typed onto the list for the week of October 14, 1974, as required by the plan.

While this court has written on the legality of the selection of jury panels in Tarrant County by electronic means and has upheld such procedure [Martinez v. State, 507 S.W.2d 223 (Tex.Cr.App.1974), cert. den., 419 U.S. 969, 95 S.Ct. 234, 42 L.Ed.2d 186]; see also Smith v. State, 472 S.W.2d 520 (Tex.Cr.App.1971), we observe that the “plan” is not in the record before us. Even if it was and contained the requirement mentioned, we observe the October 14, 1974, jury list is not in the record before us, and it is not possible to determine if the names of the jurors in question were added thereto or not. Further, if the requirement was contained in such “plan” and in fact was not followed in this case, we cannot conclude that appellant has shown he was harmed where the jurors were not otherwise shown to be disqualified.

For the reasons stated, I concur in the result.

ROBERTS, J., joins in this concurrence.

ROBERTS, Judge

(concurring).

I write to emphasize that this is a direct appeal, not a habeas corpus application seeking relief in the nature of an out-of-time appeal. See Ex Parte Dickey (Tex.Cr.App.1976) No. 51,405, decided May 4, 1976). Therefore, since appellant gave notice of appeal within ten days after sentence, his appeal is before this Court. Art. 44.08, Vernon’s Ann.C.C.P.

      . Tex.Rev.Civ.Stat.Ann., Art. 5996a (1951) provides:
      “No officer of this State nor any officer of any district, county ... or other municipal subdivision of this State, nor any officer or member of any State district, county, city . or other municipal board, or judge of any court shall appoint ... to any . position . . . employment or duty, of any person related within the second degree by affinity or within the third degree by consanguinity . .

      . See Arts. 2100a and 2120, V.T.C.S.; Martinez v. State, 507 S.W.2d 223 (Tex.Cr.App.)


author: ODOM, Judge.

text:
    Ernest Howard OWENS, Appellant, v. The STATE of Texas, Appellee.
    No. 51810.
    Court of Criminal Appeals of Texas.
    July 14, 1976.
    Rehearing Denied Sept. 15, 1976.

      Marvin G. Kramer, Dallas, for appellant.
    Henry Wade, Dist. Atty., and Edgar A. Mason, James G. Walker and Phil Dixon, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This appeal is from a conviction for aggravated robbery. Punishment, enhanced under V.T.C.A. Penal Code Sec. 12.42(c), was assessed by the jury at imprisonment for life.

In the first ground of error, appellant contends the trial court erred in overruling his objection at the punishment stage of trial to the introduction into evidence of a prior conviction for robbery that was alleged in the indictment for enhancement purposes.

Appellant’s contention is that the conviction he challenges is void on its face because the agreement to waive the confrontation of witnesses and to stipulate testimony, which was introduced into evidence with the judgment, was not signed or approved by the trial court as required by the provisions of Art. 1.15, V.A.C.C.P., then and now in effect.

Appellant’s argument is, of course, a collateral attack upon a prior final conviction. He does not contend that he made no knowing, voluntary, or intelligent waiver of his constitutional rights of confrontation and cross-examination. Instead, he merely challenges the failure of the trial court to approve his agreement to stipulate, in violation, he contends, of the strict requirements of Art. 1.15. Such an attack is ultimately a challenge to the sufficiency of the evidence to support the prior conviction, for the effect of an improper agreement to stipulate is to remove all evidence stipulated pursuant thereto from the proper consideration of the trial court. See Rodriquez v. State, Tex.Cr.App., 534 S.W.2d 335; Hughes v. State, Tex.Cr.App., 533 S.W.2d 824.

The sufficiency of the evidence may not be collaterally attacked. Gaines v. State, Tex.Cr.App., 501 S.W.2d 315; Ex parte Lyles, 168 Tex.Cr.R. 145, 323 S.W.2d 950. The first ground of error is overruled.

In the second ground of error, appellant contends the trial court erred in denying his motion to set aside the indictment because it was not signed personally by the foreman of the grand jury, but, as appellant established upon this record, by another grand juror whom the foreman had authorized to sign the latter’s name for him. See Art. 21.02, Sec. 9, V.A.C.C.P. This contention is without merit. The failure of the foreman of the grand jury to sign the indictment does not vitiate that instrument. McCullough v. State, Tex.Cr.App., 425 S.W.2d 359; Ex parte Landers, Tex.Cr.App., 366 S.W.2d 567; Ex parte King, 156 Tex.Cr.R. 231, 240 S.W.2d 777, 778 (on motion for rehearing). It is permissible therefore for another grand juror to sign the indictment in his stead. See Parkinson v. State, 87 Tex.Cr.R. 176, 220 S.W. 774. The second ground of error is overruled.

In the third ground of error, appellant contends as follows:

“The trial court erred in finding that the witnesses who identified the appellant as the person who committed the offense were not influenced by having seen photographs of the appellant or by the appellant being brought into the courtroom during the trial of the co-defendant.”

To determine the admissibility of the in-court identification of appellant by two witnesses to the robbery, a hearing was held outside the presence of the jury, in accordance with Martinez v. State, Tex.Cr.App., 437 S.W.2d 842. The record thereof reflects that both witnesses had ample opportunity to observe appellant and his companion at length during the commission of the offense. Both were later shown six mugshots of black males. The police officer who was present, according to their testimony, did nothing to suggest which photographs the witnesses should select. The photographs themselves, which are included in the appellate record, are not suggestive. Both witnesses independently identified photographs of appellant and a man who later became his co-defendant.

Appellant also complains that at the trial of the co-defendant, which preceded that of appellant, he was viewed and identified by the same witnesses, who also testified at that trial. A witness’ in-court identification is not tainted per se merely because he has viewed the accused in a prior judicial proceeding. Cunningham v. State, Tex.Cr.App., 500 S.W.2d 820. In the instant ease, both witnesses testified that their identification of appellant was based upon their recollections from the offense.

In light of all the circumstances, neither the mugshots nor procedures employed in the prior trial were so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification at trial. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); White v. State, Tex.Cr.App., 496 S.W.2d 642. The third ground of error is overruled.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Ira RICHARDSON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 52541.
    Court of Criminal Appeals of Texas.
    July 19, 1976.
    Rehearing Denied Sept. 15, 1976.

      Elmo R. Willard, III, on appeal only, Beaumont, for appellant.
    Thomas L. Hanna, Dist. Atty., and Jimmie R. Stanton, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from an order revoking probation.

Appellant entered a plea of guilty before the court to the offense of burglary on November 3, 1971. Punishment was assessed at six years probated.

During a recess at the hearing on the original motion to revoke appellant’s probation on September 15, 1975, the State filed an amended motion to revoke appellant’s probation alleging that appellant, in addition to other grounds previously alleged, violated the terms and conditions of his probation,

“By committing the offense of Unlawfully Carrying Weapon on Licensed Premises in that on or about July 28, 1975, in Jefferson County, Texas, the defendant did then and there, knowingly and intentionally carry on and about his person, a handgun, namely: a pistol on a premises licensed and issued a permit by the State of Texas for sale and consumption of alcoholic beverages, namely: Shorty’s Tavern, 580 Forsythe, Beaumont, Jefferson County, Texas, .

Following the recess, the State agreed to abandon the foregoing ground which it had added by amendment, and the hearing was continued until October 1, 1975. On September 23,1975, the State advised appellant it intended to proceed on the ground it had abandoned on September 15 and on October 1 counsel made known to the court that he had received such notice and amended motion.

The record reflects that after a hearing on October 1, 1975, the court entered an order revoking appellant’s probation which contained a finding that appellant violated his probation by committing the offense of unlawfully carrying a weapon on licensed premises, the offense being set out as alleged in the State’s amended motion to revoke.

Appellant contends, “The trial court committed reversible error in allowing the state to amend the motion to revoke probation to conform to the proof previously adduced, in violation of appellant’s rights under the due process clause of the Fourteenth Amendment to the Constitution of the United States and Article I, Section 19 of the Constitution of the State of Texas.”

Appellant urges that the trial court abused its discretion in that he deprived appellant of his rights under the due process clause by allowing the State to amend its motion at the first hearing to include a ground which was abandoned by the State, later reurged and formed the basis for revocation of appellant’s probation.

It is not suggested that appellant did not have notice of the pleading upon which the court ultimately based its finding in revoking appellant’s probation. See Brewer v. State, Tex.Cr.App., 473 S.W.2d 938. The two grounds alleged as a basis for revocation in the State’s original motion, an aggravated assault on July 28, 1975, and an assault on July 28, 1975, appear to have arisen out of the same transaction which forms the basis for revocation in the amended motion. No request for a continuance was urged when the hearing was resumed on October 1. Under the foregoing circumstances, we cannot conclude that deprivation of due process resulted or abuse of discretion is shown on the part of the court.

Appellant contends that the trial court abused its discretion in revoking appellant’s probation for the reason that the evidence “at best, shows a temporary possession of the weapon by appellant.”

Appellant points to the fact that the evidence is “hotly contested” that appellant used a pistol in an assault upon one James McQuien Byrd in Shorty’s Tavern, a beer joint, on the occasion in question. Byrd and Harrison Joseph, operator of Shorty’s Tavern, testified that appellant had a gun, Joseph stating that he told appellant, “You’re going to have to go” after he saw appellant with a gun. Byrd testified that appellant struck him with a gun. Appellant testified that he struck Byrd with a cigarette lighter and other witnesses offered by appellant stated that appellant did not have a pistol.

The trial judge, as the trier of the facts, could accept or reject any or all of any witness’ testimony. Palafox v. State, Tex.Cr.App., 509 S.W.2d 846; Williams v. State, Tex.Cr.App., 506 S.W.2d 868.

We find appellant’s reliance on Walker v. State, 149 Tex.Cr.App. 438, 195 S.W.2d 363; Fretwell v. State, 52 Tex.Cr.R. 499, 107 S.W. 837; and Hicks v. State, 66 Tex.Cr.R. 176, 145 S.W. 938 for the proposition that only a temporary possession of the pistol is shown to be misplaced. It would appear to be appellant’s position that the State bears the burden of showing that appellant had the pistol in his possession when he came upon the premises and when he departed the premises. Walker resulted in reversal for failure to instruct the jury that if defendant obtained the pistol from his wife in the nightclub prior to displaying same he would not be guilty of carrying the pistol. In Hicks and Fretwell, it was undisputed that the defendants had only momentary possession of a pistol. In the instant case, there was sufficient evidence from which the court could have concluded that appellant was carrying a pistol on the premises in question.

We find the evidence sufficient to support the trial court’s finding and conclude that the court did not abuse its discretion in revoking appellant’s probation.

The judgment is affirmed.

Opinion approved by the Court.


author: ONION, Presiding Judge.

text:
    Ex parte Becky HAMMOND.
    No. 53011.
    Court of Criminal Appeals of Texas.
    Sept. 7, 1976.

      Michael D. Matheny, Beaumont, Bill F. Griffin, Center, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This an appeal from an order entered in a habeas corpus proceeding in the 123rd District Court denying the appellant bail.

The appellant was indicted on July 12, 1976, for the capital murder of her husband. The indictment, omitting the formal parts, alleged that on or about June 19, 1976, Tony Bohannon and the appellant “did then and there unlawfully, intentionally and knowingly cause the death of Earl Hammond by employing for remuneration and the promise of remuneration, to-wit, the sum of over $10,000.00 paid and promised to be paid to Billy J. McMahon and Bobby P. McCormick, to kill the said Earl Hammond by shooting him with a gun.”

On July 21st the habeas corpus application was filed asking that bail be set. On the same date the court conducted a hearing on said application. The evidence established that Earl Hammond was found shot in the garage of his home on June 19, 1976. He had been shot by both a .32 caliber pistol and a 12 gauge shotgun.

The record reflects that on June 21,1976, the appellant was taken into custody by the sheriff of Shelby County and given Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), warnings, which warnings also complied with Article 38.22, Vernon’s Ann.C.C.P. Shortly thereafter, she was taken before a magistrate, who gave her warnings in accordance with Articles 15.17 and 38.22, Vernon’s Ann.C.C.P.

The State offered evidence that on June 22, 1976, during an interview, the appellant had admitted she and Bohannon “had gotten together and developed a plan for getting her husband killed.” The objection that this was an oral confession not admissible under Article 38.22, Vernon’s Ann.C.C.P., was sustained. It was shown that her statements were not reduced to writing because the interview was interrupted by Attorney Bill Griffin, who had been appointed by the court to represent the appellant. Over objection the written statement or confession of Tony Bohannon was introduced through the testimony of a district attorney’s investigator. Appellant’s counsel objected, noting that the appellant was being denied the right of confrontation and that the confession of a co-defendant should not be admitted against the appellant. The objection was overruled.

The State then proved that Attorney Griffin had advised the appellant of her rights after he had interrupted the interview with the law enforcement officers. Through the testimony of Deputy Sheriff Phillip Baker, it was established that about 7:15 p. m. on June 23, 1976, he had a conversation with the appellant in jail in which she requested a pen and paper. He gave her the same, including a printed top sheet containing the warnings required by Miranda and Article 38.22, supra. The evidence shows she completed the eight page (seven handwritten pages) confession by 10 p. m. The same was introduced into evidence. It recites at some length the beating of the appellant by the deceased and other abuses, including beating of one of the children, temper fits, and threats by the deceased to kill the appellant if she ever left him. She related that she began to confide in Tony Bohannon and that he had several ideas about disposing of the deceased, and talk of hiring his “cousin” to do the job. She related she went along with Bohannon because she could see no other way out. It appears that Bohannon took $2,000 from the appellant and other money “from the store” to pay the killers.

The only question before this court is whether the appellant is entitled to bail.

Article I, Section 11 of the State Constitution and article 1.07, Vernon’s Ann.C.C.P., both provide that all prisoners are entitled to bail except those charged with a capital offense “when the proof is evident.”

“The term ‘proof is evident’ means that the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense of capital murder has been committed; that the accused is the guilty party; and that the accused will not only be convicted but that the jury will return findings which will require a sentence of death.” Ex parte Wilson, 527 S.W.2d 310 (Tex.Cr.App.1975), and numerous cases there cited.

The burden of proof is on the State to establish that the proof is evident. Ex parte Wilson, supra; Ex parte Sierra, 514 S.W.2d 760 (Tex.Cr.App.1974); Ex parte Forbes, 474 S.W.2d 690 (Tex.Cr.App.1972); Ex parte Paul, 420 S.W.2d 956 (Tex.Cr.App.1967). This burden requires the State in hearings of this nature not only to introduce evidence that the jury would convict the accused but would return the findings required under Article 37.071, Vernon’s Ann.C.C.P., which would require the imposition of the death sentence. See Ex parte Wilson, supra; Ex parte Sierra, supra.

While the decision of the trial judge that the proof is evident is entitled to weight on appeal, nevertheless it is the duty of this court to examine the evidence and determine if bail was properly denied. Ex parte Wilson, supra; Ex parte Hickox, 90 Tex.Cr.R. 139, 233 S.W. 1100 (1921).

The record before this court reflects that the body of Earl Hammond was found shot numerous times in the garage of his home. One of the bullet wounds was to his head.

The court sustained the objection to appellant’s oral confession, and the admission of a co-defendant’s confession, over objection, was erroneous. Normally a confession of guilt can only be used against the person giving the confession and is inadmissible against others under the hearsay rule. Carey v. State, 455 S.W.2d 217, 220 (Tex.Cr.App.1970), and cases there cited.

The State did offer the handwritten extrajudicial confession of the appellant in which she recited the abuses by the deceased of her and one of the children, threats by the deceased, her fear of him, etc., as well as her involvement with Bohan-non in planning to dispose of the deceased as she “could see no other way out.”

In order for the death sentence to be imposed there must first be a conviction for capital murder. The State must then prove beyond a reasonable doubt that: (1) the conduct of the accused that caused the death of the deceased was committed deliberately and with the reasonable expectation the death of the deceased or another would result; (2) there is a probability that the accused would commit criminal acts of violence that would constitute a continuing threat to society; (3) if raised by the evidence, that the conduct of the accused in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. See Article 37.071, supra; Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975); Ex parte Wilson, supra.

We have carefully reviewed the record before us and cannot conclude that the “proof is evident” that the jury would answer the required questions in the affirmative as required by Article 37.071, supra.

The judgment of the trial court in denying bail to the appellant is reversed. Bail is set in the amount of $50,000.

DOUGLAS, J., not participating.

      . The record reflects that since that time counsel has been retained.

      . It is interesting to note that in footnote # 7 of Jurek v. Texas, - U.S. -, 96 S.Ct. 2950, 49 L.Ed.2d - (1976), in which the United States Supreme Court upheld the Texas statutory scheme for the imposition of the death penalty in capital murder cases the Court wrote:
      “The Texas Court of Criminal Appeals has not yet construed the first and third questions (which are set out in the text at 2954-2955, supra); thus it is as yet undetermined whether or not the jury’s consideration of those questions would properly include consideration of mitigating circumstances. In at least some situations the questions could, however, comprehend such an inquiry. For, example, the third question asks whether the conduct of the defendant was unreasonable in response to any provocation by the deceased. This might be construed to allow the jury to consider circumstances which, though not sufficient as a defense to the crime itself, might nevertheless have enough mitigating force to avoid the death penalty — a claim, for example, that a woman who hired an assassin to kill her husband was driven to it by his continued cruelty to her. We cannot, however, construe the statute; that power is reserved to the Texas courts.”


text:
    Ex parte Paula DERESE.
    No. 53073.
    Court of Criminal Appeals of Texas.
    Sept. 7, 1976.

      Richard A. Mayhan, Houston, for appellant.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order entered in a habeas corpus proceeding in the 183rd District Court denying the appellant bail.

It appears that the appellant was taken into custody by the Baytown police on July 28, 1976, and charged with the murder of her father and her mother. It further appears she was being held without bail and filed her habeas corpus application seeking bail.

On August 5, 1976, the court conducted a hearing on the said application, at the conclusion of which the court denied bail.

The record reflects that on July 25, 1976, the bodies of Paul Harvey Cantrell and Mary Bright Cantrell were found in their Baytown home. According to the assistant medical examiner, who performed the autopsy, the death of Paul Harvey Cantrell was asphyxia due to ligature strangulation and cutting wounds of the neck.

Appellant’s extrajudicial confession was introduced into evidence. In it she details her past acquaintance with one Vernon McManus and how she on occasion had “problems” with her parents and how McManus had suggested that he get someone to kill her parents. She related that McManus told her that she would have to pay the killers out of the insurance money she would collect and that he would get one-third of the estate. Her confession relates McManus told her once he paid $15,000 to the killers and later another $5,000. The discussion about the killings covered several months. She related that on Saturday, July 24, 1976, at 4 p. m. McManus called her at her parents’ home, where she lived, and told her “the people supposed to do the killings were in the area” and that “three is a crowd.” She left home about 6 p. m. and returned in the early morning hours of July 25 to find the bodies of her parents. She also stated she talked to McManus on July 25th and he revealed that he had been forced to go with the other two men in the car he had rented and had been present when the killings took place and described the events to her. He told her to keep her mouth “shut” and “not to crack.”

The appellant called her former husband, who testified that they had a two and a half year old son, that she was not a person of violence, and that she got along with her parents “very well.” There was no showing that appellant had any criminal conviction.

Article I, Section 11, of the State Constitution and Article 1.07, Vernon’s Ann.C.C.P., both provide that all prisoners are entitled to bail except those charged with a capital offense “when the proof is evident.”

“The term ‘proof is evident’ means that the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense of capital murder has been committed; that the accused is the guilty party; and that the accused will not only be convicted but that the jury will return findings which will require a sentence of death.” Ex parte Wilson, 527 S.W.2d 310 (Tex.Cr.App.1975), and numerous cases there cited.

The burden of proof is on the State to establish that the proof is evident. Ex parte Wilson, supra; Ex parte Sierra, 514 S.W.2d 760 (Tex.Cr.App.1974); Ex parte Forbes, 474 S.W.2d 690 (Tex.Cr.App.1972); Ex parte Paul, 420 S.W.2d 956 (Tex.Cr.App.1967). This burden requires the State in hearings of this nature not only to introduce evidence that the jury would convict the accused but would return the findings required under Article 37.071, Vernon’s Ann.C.C.P., which would require the imposition of the death sentence. See Ex parte Wilson, supra; Ex parte Sierra, supra.

While the decision of the trial judge that the proof is evident is entitled to weight on appeal, nevertheless it is the duty of this court to examine the evidence and determine if bail was properly denied. Ex parte Wilson, supra; Ex parte Hickox, 90 Tex.Cr.R. 139, 233 S.W. 1100 (1921).

The record reflects that the bodies of Paul and Mary Cantrell were found in their home on July 25, 1976. Cause of death of Paul Cantrell was shown to be asphyxia due to strangulation.

Appellant’s confession related McManus’ suggestion that he could acquire killers to take care of her parents. According to the confession, he had suggested having appellant’s former husband killed, but she declined. The funds supposedly paid out were paid out by McManus with his statement that he was entitled to one-third of the estate for hiring the killers.

In order for the death penalty to be imposed there must first be a conviction for capital murder. See, V.T.C.A., Penal Code, Sec. 19.03. The State must then prove beyond a reasonable doubt that: (1) the conduct of the accused that caused the death of the deceased was committed deliberately and with the reasonable expectation the death of the deceased or another would result; (2) there is a probability that the accused would commit criminal acts of violence that would constitute a continuing threat to society; (3) if raised by the evidence, that the conduct of the accused in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. See Article 37.071, Vernon’s Ann.C.C.P.; Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975); Ex parte Wilson, supra.

We have carefully reviewed the record before us and cannot conclude that the “proof is evident” that the jury would answer the required questions in the affirmative as required by Article 37.071, supra. It is true that the trial judge at the conclusion of the habeas corpus hearing found there was a probability that the accused would commit acts of violence that would constitute a continuing threat to society. The evidence is insufficient to support such finding. Independent of the confession, the State offered no evidence on this issue. The appellant offered evidence of her non-violent nature, and there was no showing of any criminal record.

The judgment of the trial court in denying bail to the appellant is reversed. Bail is set in the amount of $50,000.

ODOM, J., dissents.

DOUGLAS, J., not participating.


author: CADENA, Justice.

text:
    CRAWFORD-STRAUSS PROPERTIES, INC., Appellant, v. Robert DOOLITTLE and Richard Ragsdale d/b/a Rio Landscaping and Sprinkler Company, Appellee.
    No. 15447.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 14, 1976.
    Rehearing Denied July 30, 1976.

      Cox, Smith, Smith, Hale & Guenther, Inc., P. Keith O’Gorman, San Antonio, Hewett, Johnson, Swanson & Barbee, Dallas, for appellant.
    Fred R. Granberry, San Antonio, for ap-pellee.
   CADENA, Justice.

Defendant, Crawford-Strauss Properties, Inc., appeals from a judgment, based on a jury verdict, awarding plaintiffs, Robert Doolittle and Richard Ragsdale, d/b/a Rio Landscaping & Sprinkler Company, $5,470.50 as compensation for work done, and materials furnished, by plaintiffs under a contract for installation by them of a sprinkler system at an apartment complex under construction in San Antonio. Such construction was under the supervision of defendant as general contractor.

On July 4, 1973, plaintiffs submitted to defendant a proposal for the installation of a sprinkler system at the apartment complex. Defendant accepted the proposal and plaintiffs began installation of the system with the understanding that a written contract would be executed incorporating plaintiffs’ proposal. The contract was signed by defendant on July 30, 1973, after it had been signed by plaintiffs. The record does not disclose the date of execution of the instrument by plaintiffs.

On July 31, 1973, plaintiffs submitted their first “draw sheet,” requesting payment for work done by them up to that time. A check for the amount shown on the draw sheet ($5,470.50) was delivered to plaintiffs, but, after an inspection of the work, defendant ordered payment on the check stopped. Plaintiffs have not completed the installation of the sprinkler system; and by this suit they seek recovery of the sum of $5,470.50 as payment for the work done by them prior to July 31, 1973.

The contract price for the installation of the complete sprinkler system was $18,-235.00.

The sprinkler system was to be an automatically operated system consisting of approximately 835 “commercial grade Rain-bird brass high-pop pop-up sprinkler heads.” The contract recited that the exact number of sprinkler heads to be installed would be “determined by adequate coverage, considering topography and landscape planting.” The contract required the installation of 30 “commercial grade Buckner electric automatically operated sprinkler control valves”; approximately 10 “Toro pop-up rotary heads”; and 3 “Rainbird 10-station automatic controllers.” All workmanship and materials were required to conform with the plumbing and building codes of the City of San Antonio, and plaintiffs agreed to install anti-backflow devices “as required.” Plaintiffs guaranteed “100% coverage of the lawn areas below the finished grade.” The contract required that the sprinkler heads be so positioned as to avoid spraying water on the buildings.

The contract specified that no alterations were to be made in the “[w]ork as shown or described by the Contract Documents except on the written order of” defendant.

The jury found that the work actually done by plaintiffs under the contract was done in a good and workmanlike manner and that the work actually done substantially complied with the contract. The jury further found that it would require no additional expense “to place the portion of the sprinkler system actually completed by Plaintiffs in compliance with the contract.”

Plaintiffs’ pleadings did not seek recovery on a theory of quantum meruit.

The following facts are undisputed:

(1) Plaintiffs did not install an anti-back-flow device, although the plumbing code of the city required at least one such device. Operation of the sprinkler system without meeting this requirement would be unlawful and would subject the user to a fine not exceeding $200.00 each time the system was used.

(2) Plaintiffs installed Toro valves instead of the Buckner valves called for in the contract.

(3) Plaintiffs installed a Buckner controller rather than the Rainbird 10-station automatic controller required by the contract.

Clearly, the work actually performed by plaintiffs does not constitute full compliance with the terms of the contract. In order to recover, they must invoke the equitable doctrine of substantial performance. “Substantial performance” has been defined in Texas as follows:

To constitute substantial compliance the contractor must have in good faith intended to comply with the contract, and shall have substantially done so in the sense that the defects are not pervasive, do not constitute a deviation from the general plan contemplated for the work, and are not so essential that the object of the parties in making the contract and its purpose cannot, without difficulty, be accomplished by remedying them. Such performance permits only such omissions or deviation from the contract as are inadvertent and unintentional, are not due to bad faith, do not impair the structure as a whole, and are remediable without doing material damage to other parts of the building in tearing down and reconstructing.

At the time that defendant stopped payment on the check, one of defendant’s vice-presidents told plaintiffs that the sprinkler system did not give 100% coverage; that there was a defective valve; and that some of the sprinkler heads were Toro vinyl heads rather than the Rainbird heads called for by the contract. There is uncontradict-ed testimony to the effect that plaintiffs repaired the defective valve and replaced the Toro sprinkler heads with Rainbird heads. The testimony concerning the coverage afforded by the system is conflicting, and the jury obviously resolved this conflict in favor of plaintiffs.

We thus must consider the effect of plaintiffs’ conduct in failing to install the anti-backflow device, in installing a Buckner controller rather than the Rainbird controller specified in the contract, and in installing Toro valves rather than Buckner valves.

One of the plaintiffs at first explained the absence of the anti-backflow device by stating that the installation of such a device was not required by the plumbing code of the City of San Antonio. When confronted with a provision of the plumbing code requiring the installation of such a device, he took the position that defendant insisted that the connection of the sprinkler system to the city water mains be done by defendant’s plumber, and that it was the duty of such plumber to install the anti-backflow device. The evidence establishes that the plumber who made the connection to the city water main was paid by plaintiffs. It was plaintiffs’ duty under the contract to make such connection, it is clearly plaintiffs’ obligation under the contract to install, or cause to be installed, required anti-backflow devices. This obligation was not performed.

The testimony is sufficient to support a finding that the valves and controller actually installed by plaintiffs were at least equal in quality and performance to those called for by the contract. The portion of the sprinkler system actually installed was, according to plaintiffs’ testimony which the jury accepted as true, sufficient to accomplish the purpose for which the contract was executed. That is, except for the absence of the anti-backflow device, the deviations are not so pervasive as to frustrate the purpose of the contract in any real or substantial sense. Defendant’s testimony establishes that the absent backflow prevention device can be installed for about $715.00.

The evidence, while conflicting, is sufficient to support a finding of substantial compliance.

However, we agree with defendant that the jury’s answer to the effect that no additional expenditures would be required in order to bring the work into literal compliance with the terms of the contract cannot stand.

Even if the finding of substantial performance finds support in the evidence, the rule is that the amount recoverable by the defaulting contractor is determined'by deducting from the contract price the reasonable cost of remedying the defects in the tendered performance. Atkinson v. Jackson Bros., supra; Loggins v. Gates, 301 S.W.2d 525 (Tex.Civ.App., Waco 1957, writ ref’d n.r.e.). The evidence is clear that some expense would be incurred in remedying the defects. An examination of the testimony reveals that the cost of such remedial work is not established as a matter of law. The testimony of defendant’s expert cannot be accepted as true, since the remedial work which he described departs from the provisions of the contract and, in any event, he did not testify that his cost estimates represented the reasonable cost of such remedial work.

Since the jury finding is contrary to the overwhelming weight and preponderance of the evidence, and since the cost of the remedial work required is not established as a matter of law, we must remand the cause for a new trial. As was pointed out in Atkinson, the burden was on plaintiffs to establish “the deductions allowable necessary to remedy the defects and omissions.” 270 S.W. at 851.

The judgment of the trial court is reversed and the cause is remanded for a new trial.

ON MOTION FOR REHEARING

In its motion for rehearing, appellant insists that there can be no finding of substantial performance where the contractor intentionally departs from the agreed specifications.

There are numerous statements to the effect that where the contractor is guilty of a “willful” breach he can maintain no action for compensation. See Cotherman v. Oriental Oil Co., 272 S.W. 616, 619-20 (Tex.Civ.App., Amarillo 1925, no writ).

The courts have made little or no effort to define the term “wilful,” Terms such as “wilful,” “deliberate,” “intentional,” and “fraudulent” are merely epithets characterizing the quality of the conduct of one guilty of a breach and expressing the mental attitude of the court. In refusing compensation to a wrongdoer, his conduct may properly be described by resorting to epithets, but the fact that it may be so described does not automatically decide the case and make it unnecessary to weigh and give effect to other factors. 5A Corbin on Contracts § 1124, p. 11 (1964).

The Cotherman opinion is not overly persuasive as a precedent in the application of the doctrine of substantial performance. The opinion’s rationale cannot be interpreted as other than a repudiation, in effect, of the doctrine. For example, the Amarillo Court quoted from an Iowa case which stated: ‘The appellants either contracted for a 4-inch well, or they did not. If they contracted for such a well, they were entitled to it, and a 3-inch one did not constitute a substantial compliance with the contract, ..’ The other authorities cited all speak in terms which would require literal compliance with all terms of the contract.

It is significant, too, that in Cotherman the contractor completely abandoned the project and made no effort whatever to complete the contract.

Ellison Furniture & Carpet Co. v. Langever, 52 Tex.Civ.App. 50, 113 S.W. 178, 135 S.W. 1059 (Tex.Civ.App., Fort Worth 1908, no writ), is also urged as dispositive of the case before us. There, the contract called for the construction of an electric advertising sign containing 296 light bulbs along the border. The sign constructed by plaintiff contained only 263 lights along the border. In denying recovery to plaintiff, the Court said (113 S.W. at 179):

If the parties to the contract specifically stipulated that the border should contain 296 lights, the courts would have no power to set aside such stipulation; but the . [plaintiff] would be bound by it, even though a less number of lights might be more desirable, either from the standpoint of beauty or utility. Any other rule would put it beyond the power of the parties to contract as they please, and would require . . . [defendant] to accept and pay for something it had never bargained for. . If . [defendant] contracted for a specific number of lights in the border of his sign, . [plaintiff] had not complied by placing therein a less number.

This insistence on literal compliance is, again, wholly inconsistent with the equitable doctrine of specific performance. In both Cotherman and Langever there is an absence of consideration for the factors generally considered by a court which is seeking to determine whether less than literal compliance with the terms of a contract necessarily deprives the contractor of the right to any compensation. Nothing is said of the purpose to be served by the contract, the excuse for deviation from the letter, the desire to be gratified, and the inequity of requiring complete adherence. It is only after considering such factors that a court can make a determination as to whether literal fulfillment of the terms is to be required.

In Harrell v. City of Lufkin, 280 S.W. 174 (Tex.Com.App.1926), denial of recovery on the doctrine of substantial performance was based on three factors. (1) The essential basis for recovery under the doctrine of specific performance was not embodied in the pleadings. (2) There was no prayer for recovery on that theory. (3) The jury found that there had been no substantial performance. The Court did say (280 S.W. at 176-77):

[T]here is absence of ‘substantial performance,’ since the changes were intentionally made and ‘structural’ in their nature. Intentional material changes preclude existence of at least two of the primal elements of ‘substantial performance.’ . . . The jury’s finding, in view of conflicting testimony as to comparative merit of the pavement contracted for originally and that finally laid, removes the third element of ‘practically equivalent quality and value.’

In Harrell, in addition to an intentional deviation, we had a case involving deviations which were “material” and a performance which was not of “practically equivalent quality and value.” Here, unlike the situation in Harrell, the jury’s finding does not remove all the elements of the doctrine. The verdict here, at least, establishes that the changes were not material and that the tendered performance was of “practically equivalent quality and value.”

The opinion of the Commission of Appeals in Harrell was not adopted by the Supreme Court. Only the “judgment recommended” was adopted. The judgment recommended can be supported on the fact that the tendered performance was not the equivalent of that for which the owner contracted, and on the fact that the jury also found that the changes were material. Therefore, the Supreme Court’s adoption of the judgment does not imply an approval of the language concerning the effect of “intentional” deviation.

Accepting the jury verdict in this case, we do not have before us a situation where a contractor attempted to substitute inferi- or and less expensive materials. Are we to brand as “willful” deviation the conduct of the contractor who, in order to speed up performance, uses different material from that specified, more conveniently at hand and in fact equally good?

Here, after payment on the check was stopped, the contractor corrected the deviations which had been called to his attention. The defective valves were repaired and the non-complying sprinkler heads were replaced. When appellant still withheld payment, according to the undisputed testimony, including the testimony of one of appellant’s witnesses, the contractor sought, on several occasions to ascertain the reason for nonpayment, so that he might make the necessary corrections. Appellant did not respond to these inquiries. We have here, then a contractor who made every effort to determine the cause of the owner’s dissatisfaction and who was willing to make whatever changes were necessary to bring his performance into literal compliance with the contract. It would be grossly inequitable to classify such a contractor as a person guilty of “intentional and deliberate” wrongdoing and deprive him completely of his labor and materials, and to bestow on the unresponsive owner a benefit which must be classified as “unjust” enrichment.

The motion for rehearing is overruled

      . Atkinson v. Jackson Bros., 270 S.W. 848, 851 (Tex.Com.App.1925).