author: DALLY, Commissioner.

text:
    Shirley HARRISON, Appellant, v. The STATE of Texas, Appellee.
    No. 53609.
    Court of Criminal Appeals of Texas.
    Sept. 14, 1977.
    Rehearing Denied Oct. 12, 1977.
    Will Gray, Houston, on appeal only, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and George 0. Jacobs, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the possession of heroin. The punishment assessed by a jury is imprisonment for 20 years.

The appellant and her husband, although separately indicted, were tried together before the same jury; both received the same punishment. The appellant’s husband’s appeal was affirmed by a Per Curiam opinion on June 14, 1977. The grounds of error in both appeals are the same except that the appellant, in her appeal, also contends that the evidence is insufficient to support the jury’s verdict. We agree that the evidence is insufficient; the judgment will be reversed.

To establish unlawful possession of a controlled substance the State must prove two elements: (1) that the accused exercised care, control, and management over the contraband, and (2) that the accused knew the matter possessed was contraband. Rice v. State, 548 S.W.2d 725 (Tex.Cr.App.1977); Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.1976); Payne v. State, 480 S.W.2d 732 (Tex.Cr.App.1972); Ramos v. State, 478 S.W.2d 102 (Tex.Cr.App.1972); Rodriguez v. State, 372 S.W.2d 541 (Tex.Cr.App.1963).

Possession of the contraband need not be exclusive and evidence which shows the accused jointly possessed the contraband with another is sufficient. Hernandez v. State, supra; Williams v. State, 524 S.W.2d 705 (Tex.Cr.App.1975); Shortnacy v. State, 474 S.W.2d 713 (Tex.Cr.App.1972); Harvey v. State, 487 S.W.2d 75 (Tex.Cr.App.1972). However, a finding of joint possession cannot be justified solely by proof of mere presence of an accused at a place where contraband is being used or possessed. Hernandez v. State, supra; Williams v. State, supra; Brooks v. State, 529 S.W.2d 535 (Tex.Cr.App.1975); Payne v. State, supra; Hausman v. State, 480 S.W.2d 721 (Tex.Cr.App.1972); Kinkle v. State, 474 S.W.2d 704 (Tex.Cr.App.1972); Reid v. State, 474 S.W.2d 702 (Tex.Cr.App.1972); Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969). Whether the theory of prosecution is sole or joint possession, the evidence must affirmatively link the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband’s existence and of its whereabouts. Hernandez v. State, supra; Curtis v. State, 519 S.W.2d 883 (Tex.Cr.App.1976); Payne v. State, supra; Hineline v. State, 502 S.W.2d 703 (Tex.Cr.App.1973); Powell v. State, 502 S.W.2d 705 (Tex.Cr.App.1973). This affirmative link is established by showing additional facts and circumstances which indicate the accused’s knowledge and control of the contraband. Long v. State, 532 S.W.2d 591 (Tex.Cr.App.1976); Hineline v. State, supra; Alba v. State, 492 S.W.2d 555 (Tex.Cr.App.1973); Woolridge v. State, 514 S.W.2d 257 (Tex.Cr.App.1974).

We now consider the evidence in this voluminous record from which the State says: “That [appellant] was distinctively connected to the crime is without question.” At approximately 9:00 p.m. on October 3, 1973, a number of officers of the Harris County Sheriff’s Office and the Narcotics Service of the Texas Department of Public Safety went to 1508 Pannell Street, in the Fifth Ward, just off Lyons Avenue in Houston, armed with a search warrant.

The house searched was the residence of the appellant and her husband. The doors and windows of the house were covered and secured by steel bars. The front door was held by steel bars on the inside. The officers gained entrance to the house through the front door by battering it down with a sixteen pound sledge hammer, through a window after pushing an air conditioning unit into the house, and through a window after bending the steel bars with a sledge hammer.

While some of the officers were gaining entry, others surrounded the house. The officers made their presence known and demanded that they be admitted to the house. Officers heard two people running in the house. An officer who was outside the window near the kitchen sink heard water running and broke the window with his pistol. He saw the appellant’s husband disposing of heroin in the sink. The officer fired a shot into the sink and warned the appellant’s husband to stop. He dropped down out of sight and the officer could see his hand coming up over the sink disposing of the heroin. After officers entered the house they found thirteen packets of heroin near the kitchen sink in close proximity to the appellant’s husband. The officers searched the appellant and the house and were unable to find any other narcotics.

When the officers came into the house the appellant was in the living room, seated on a sofa holding two dogs and talking to them. There is no testimony that she had fresh needle marks on her arms; there is evidence that she had been on a methadone treatment program. The complete record of this treatment was offered in evidence for a bill of exception by the. appellant’s counsel. These records showed that periodic tests of the appellant’s urine made for one year prior to the raid revealed no evidence that she was using heroin. There is no evidence as to how long the heroin found had been in the house.

In Williams v. State, 498 S.W.2d 340 (Tex.Cr.App.1973) the majority of this Court held that evidence which was stronger than that presented in this case was insufficient to sustain the conviction for the possession of heroin. We quote from that opinion:

“The conviction will be reversed. At most the evidence shows that: (1) even though the appellant was in the trailer house at the time the search warrant was executed, he was not found to be in personal possession of narcotics; (2) since four other persons were present on the scene, and the evidence shows ‘were also staying there,’ when the search warrant was executed, appellant was not shown to be in exclusive possession; (3) since the narcotics in question were found on the dressing table in one bedroom, and appellant was in the kitchen of the trailer, sufficient ‘close proximity’ is not shown; (4) even though ‘needle marks’ were on appellant’s arm, the witness testified that they could not determine whether they were recent; (5) even though the evidence shows that the utility bills for the trailer were in appellant’s name, no other evidence, other than the fact of appellant’s presence, was introduced to show he occupied the premises. See and compare Collini v. State, Tex.Cr.App., 487 S.W.2d 132; Harvey v. State, Tex.Cr.App., 487 S.W.2d 75; Hausman v. State, Tex.Cr.App., 480 S.W.2d 721; Payne v. State, Tex.Cr.App., 480 S.W.2d 732; Carr v. State, Tex.Cr.App., 480 S.W.2d 678; Ramos v. State, Tex.Cr.App., 478 S.W.2d 102; Haynes v. State, Tex.Cr.App., 475 S.W.2d 739.”

The evidence is insufficient to sustain the jury’s verdict. The judgment is reversed and the cause is remanded.

Opinion approved by the Court.


source: Caselaw Access Project

author: BROWN, Commissioner.

license: Public Domain

text:
    Silas GREEN, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 53683.
    Court of Criminal Appeals of Texas.
    Sept. 21, 1977.

      Murray L. Lieberman, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and A. Ross Rommell, Jr., Asst. Dist. Attys., Houston, Jim Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

BROWN, Commissioner.

Appellant’s motion for rehearing is granted. Our prior opinion is withdrawn.

This is an appeal from a conviction for fraudulent misuse of a credit card under Article 1555c, Section 10(b), Vernon’s Ann. P.C. (1925). Appellant was tried before a jury and punishment was assessed by the trial court at five years in the Texas Department of Corrections. Imposition of sentence was suspended and appellant was placed on probation for a period of five years.

In appellant’s second ground of error he contends that the evidence is insufficient to support the jury’s verdict. The record reflects that James McGuire was the holder of Texaco Credit Card number 56-214-1799-6 and appellant was the operator of a Texaco service station located at 6929 North Loop East in Houston. McGuire testified that the card was stolen from him on the night of June 25, 1971 and that he notified Texaco on June 28, 1971 that the card had been stolen. He further stated that he had never seen appellant nor had he ever purchased gasoline or automotive goods from appellant’s Texaco station. The State introduced into evidence a credit card purchase receipt representing the purchase of four tires from appellant’s service station for two hundred twenty-eight dollars and ninety-six cents ($228.96). McGuire testified that he had never seen the receipt and that the signature on the receipt was not his. The receipt indicates that the purchase was made with McGuire’s credit card number 56-214-1799-6.

Jill Moreland testified that she was employed by Texaco in the charge authorization center. She stated that it was her duty to authorize credit card purchases of more than twenty-five dollars. She said she received a call on June 28, 1971 from appellant’s service station and took the credit card number and the retailer’s account number. She stated that when she received the retailer’s number she noted that she had previously received instructions to put the caller on hold for further verification of that retailer’s account number, although no reason was given for this procedure. She then notified R. J. Poehl in the “fraud group” of the Texaco credit center that she had received a call from the suspect retailer. She then gave appellant authorization for the sale.

G. C. Mason, Manager of security for Texaco credit card sales, testified that he went to appellant’s station on June 28,1971 with Poehl to investigate a purchase on McGuire’s credit card. Mason said appellant told them he sold a set of new tires and received in trade an old set which he pointed to in the rear of a pick-up truck. Mason said the tires were very old, had worn differently and were full of water. He further said that there were no tire displays or new tires for sale in appellant’s station. Mason said appellant told them the tires were purchased by a white male of average height and approximately thirty to thirty-five years old. Appellant also told them the purchaser drove a 1955 Buick with Texas license plate number PXK 162 and presented a Texas driver’s license with number 0492351. Mason finally stated that the credit sales receipt indicated that appellant was authorized to make the sale to the purchaser.

The State then called Edubijes Molina who testified that he had been issued Texas driver’s license number 0492351 and that he had never lost it and that it was in his possession on June 28,1971 and that he had never been in appellant’s station, did not know appellant and did not purchase a set of tires from him. He further stated that he did not own and had never owned a 1955 Buick. The State then called a deputy tax assessor-collector for Harris County who testified that the Texas automobile license plates with number PXK 162 were registered to a 1965 Dodge owned by John J. Dozier. Mrs. Dozier testified that the license plates were on the 1965 Dodge in June of 1971 and had not been removed or stolen. She further stated that she had never seen appellant before and did not purchase tires from him. Finally, the State presented . testimony from a Texaco accounting representative who stated that the receipt in question had been presented to Texaco for payment and had been processed. Appellant presented no evidence.

Article 1555c, Section 10, Vernon’s Ann. P.C., dealing with credit card theft and fraud by a person authorized to provide goods or services, provides as follows:

“(a) A person who is authorized by an issuer to furnish money, goods, services, or anything else of value upon presentation of a credit card by the cardholder, or any agent or employees of such person, who with intent to defraud the issuer or the cardholder, furnishes money, goods, services, or anything else of value upon presentation of a credit card obtained or retained in violation of any provision of Sections 2-8 of this Act or a credit card which he knows is forged, expired, or revoked is guilty of an offense and is subject to the penalties set forth in Section 13(b) of this Act.
“(b) A person who is authorized by an issuer to furnish money, goods, services, or anything else of value upon presentation of a credit card by the cardholder, or any agent or employee of such person, who, with intent to defraud the issuer or the cardholder, fails to furnish money, goods, services or anything else of value which he represents in writing to the issuer that he has furnished, is guilty of an offense and is subject to the penalties set forth in Section 13(a) of this Act.”

(These provisions of the former Penal Code are now covered by V.T.C.A. Penal Code, Section 32.31.) An “issuer” is defined in Article 1555c, Section 1(4), as “any person, firm, corporation or financial institution which issues a credit card, or its duly authorized agent.”

The indictment, omitting the formal parts, alleges that Texaco had issued credit card number 56-214-1799-6 to James F. McGuire and that appellant

“ . . . was a Texaco Service Station retailer and in such official capacity was authorized by Texaco to furnish and sell goods on credit upon presentation to him of a Texaco Credit Card by the cardholder, and the said SILAS GREEN, JR., with intent to defraud Texaco, the issuer, ., did then and there represent in writing to Texaco by filling out and completing [a] Texaco credit card invoice that he the said SILAS GREEN, JR., furnished and sold four 885 X 15 tires to the said James F. McGuire, whereas in truth the said SILAS GREEN, JR. did not furnish and sell tires to James F. McGuire, and the said James F. McGuire did not purchase said tires from the said SILAS GREEN, JR.”

It is clear that the indictment charges appellant with an offense under Article 1555c, Section 10(b). It was therefore incumbent upon the State to show (1) that appellant was a person authorized by an issuer to furnish goods and services on presentation of a credit card by a cardholder; (2) that, with intent to defraud Texaco, (3) appellant failed to furnish goods which (4) he represented in writing to Texaco that he had furnished.

The State presented evidence that appellant was an authorized Texaco retailer which satisfies the first element of proof. The State also showed that appellant represented in writing to Texaco that he had furnished new tires of the value of more than two hundred dollars to a purchaser purported to be McGuire, satisfying the fourth element of proof. There was also testimony that appellant gave Texaco’s investigators a description of the purchaser’s automobile, his license plate and driver’s license number, all of which turned out to be false. Further testimony showed that appellant had no new tires for sale in his station. Finally, the authorized holder of the credit card used in the alleged purchase, the holder of the driver’s license used for identification and the holder of the license plates alleged to have been on the purchaser’s car all testified that they did not know appellant, had never been in his Texaco station, and did not purchase tires from him. This evidence satisfies the second and third elements of proof.

We find the evidence sufficient to support the jury’s verdict.

Appellant’s second ground of error is overruled.

We now turn to appellant’s first ground of error in which he contends that the trial court erred in overruling appellant’s motion to quash the indictment because appellant was denied his right to a speedy trial.

The indictment in this offense was filed on November 16, 1971. Appellant was not arrested until October 7, 1974. The trial took place on September 30, 1975.

At the hearing on appellant’s motion to quash the indictment appellant testified that he resided at 3906 Madden in Houston and had resided there for eleven years and was residing there at the time of this offense and was never absent from Harris' County for any long period of time. He stated he was the operator of the Texaco service station on North Loop East in Houston and that he employed six other persons in the station, but had no independent recollection of their names or addresses. He stated that all of the records of the service station were kept by Lone Star Bookkeeping Service, but the records for the period in question were “not available.” He said that after he was arrested for this offense he tried to locate some of the former employees but could find none of them. Appellant stated that some of these employees were present at the time of the alleged offense and could testify that a customer came in, purchased tires, presented a credit card for the purchase and then drove away after completing the purchase. Appellant further stated that during the years 1973 and 1974 he was involved in civil litigation concerning his lease and that Texaco served him with the necessary papers in that lawsuit. He also stated that he had no knowledge that any criminal charges had been filed against him until he was arrested in 1974.

Detective Robert McKinney of the Harris County Sheriff’s Office of Criminal Warrants testified that he executed a warrant for appellant’s arrest in October of 1974. He stated that notations on the warrant indicated that two previous attempts had been made to serve the warrant. He further stated that he and his “partner” were handling approximately ten to fifteen thousand “no arrest” cases at the time of this hearing.

It was stipulated that appellant and Texaco were involved in civil litigation from October 27, 1972, when appellant was served at 3906 Madden, until January 30, 1975, when judgment was rendered. Based on this evidence the trial court overruled appellant’s motion to quash the indictment.

In Smith v. State, 530 S.W.2d 827 (Tex.Cr.App.1976) we quoted our previous opinion in Davison v. State, 510 S.W.2d 316 (Tex.Cr.App.1974) where this Court wrote:

“The test for ascertaining whether the right to speedy trial has been denied is a balancing test based upon at least four criteria: (1) the length of the delay; (2) the reason for the delay; (3) the accused’s assertion of his right; and (4) the prejudice to the accused. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Pete v. State, 501 S.W.2d 683 (Tex.Cr.App.1974); McKinney v. State, 491 S.W.2d 404 (Tex.Cr.App.1973).”

In Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973), the Supreme Court of the United States emphasized that none of these four criteria have “talismanic qualities,” and in particular that a showing of prejudice is not a sine qua non to demonstrating a denial of the right to speedy trial.

When considering the length of delay, the time period is measured from the time the defendant became the “accused.” George v. State, 498 S.W.2d 202 (Tex.Cr.App.1973). In the instant case the indictment was returned in November 1971; however, appellant was not aware of the indictment until his arrest in October, 1974. Therefore, although appellant was technically the “accused” as of November 1971, he was not incarcerated and was not cognizant of the fact that he was the accused in a criminal proceeding. The record does not reflect the reason for the delay between indictment and arrest, although there is testimony that at least two attempts were made to arrest appellant during the period. Nor is there any assertion of a deliberate effort by the State to delay the trial. Appellant, of course, made no assertion of his right to a speedy trial during this period. In fact, we note that appellant made no assertion of his Sixth Amendment right until the filing of his motion to quash the indictment on September 29, 1975, the day preceding this trial.

With respect to a showing of prejudice, it is generally said that there are three interests to be considered in determining prejudice to the defendant. These three interests are: (1) prevention of oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. Barker v. Wingo, supra; McKinney v. State, supra. As stated above, appellant was not incarcerated during the period of time following his indictment and it appears from the record that appellant posted a $2000 bond on the day of his arrest and was released; therefore, the first consideration has no application in the instant case. The second consideration is of little or no effect since appellant was not even aware of the 'pending charges until his arrest. Our main concern, therefore, becomes a determination as to whether or not appellant’s defense was impaired by the delay.

In an effort to show prejudice appellant testified that some of his six service station employees were present in the station on the day of the offense. He stated that these employees could testify that the sale of the tires actually took place. He stated that he could not remember the names of any of the employees and that all of his business records were kept by Lone Star Bookkeeping and were “unavailable.” The record does not reflect that appellant attempted to subpoena the records or anyt of the witnesses. We also note that appellant and the State stipulated that appellant was involved in civil litigation concerning his lease. It was not shown how appellant was able to prepare a defense to the civil suit.

In Harris v. State, 489 S.W.2d 303 (Tex.Cr.App.1973) the accused contended that two of his witnesses were unavailable due to the delay in bringing the case to trial. We held that where there was no showing that the witnesses were material or relevant to the case and where no subpoenas were issued for the witnesses and the accused made no diligent effort to secure their attendance, there was no prejudice to the appellant.

In the instant ease appellant’s efforts to obtain the presence of his former employees were limited to trying to find them through the bookkeeping service. Even assuming that the witnesses were material and relevant to this case, we find that appellant has not made a showing of due diligence to secure their presence. Further, there was no showing that the bookkeeping company had records on the employees at the time appellant was indicted. ■

Therefore, considering all of the factors involved and applying the balancing test of Barker v. Wingo, supra, we conclude that appellant was not denied his right to a speedy trial.

Appellant’s first ground of error is overruled.

In his third ground of error appellant contends that the trial court erred in sentencing appellant to five years in the Texas Department of Corrections because the maximum punishment for the offense for which appellant was convicted was two years. We agree with appellant’s contention and have determined that this cause must be remanded to the trial court for a new hearing on punishment.

Appellant was indicted for “failure to provide goods, etc.” under Section 10(b) of Article 1555c, supra, as discussed above. That section provides that a person found guilty of the offense shall be punished under the penalties provided in Section 13(a) which sets maximum punishment at a fine of not more than $1000 or not more than two years in the penitentiary or both. The trial court assessed punishment at five years and then suspended sentence and placed appellant on probation. This punishment clearly was not authorized under the law.

The judgment of conviction is affirmed and the cause is remanded to the trial court for a new hearing on punishment.

Opinion approved by the Court.


author: ROBERTS, Judge.

text:
    Raymond DRAGER, Appellant, v. The STATE of Texas, Appellee.
    No. 53182.
    Court of Criminal Appeals of Texas.
    Sept. 21, 1977.
    Kenneth Nolan Tarlton, Amarillo, for appellant.
    Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for theft of cattle under $10,000. The jury assessed punishment at two years’ confinement in the Texas Department of Corrections.

The State’s evidence was circumstantial. Appellant’s only ground of error challenges its sufficiency.

The record reflects that the complaining witness stock farmed in an area about ten miles north of Bovina. He went with his brother to check his cattle around 10 a. m. on April 1, 1975. He noticed a calf was missing. Circumstances revealed that this was not merely an occurrence appropriate for the day. The calf was worth a hundred dollars and he gave no one permission to take it. After searching the pasture for the calf, he noticed some “hay and stuff” by the side of the fence. The fence was along a “turnrow,” which was a private road separating this pasture from another. Near the “straw and stuff” there was some “binding string, which is used in tying bales.” The complainant also found a wristwatch about “six or eight feet from this hay.” “There was hair on the ground there of where, apparently, a calf had been drug, or skidded, or moved.” It was black hair and the missing animal was a black calf. The calf weighed around 250 pounds. The complainant then went back to Bovina and contacted the Sheriff’s Department. He gave them the watch. The next morning he found his calf in appellant’s father’s corral.

Henry Minter, deputy sheriff of Parmer County, testified that he was contacted on April 1,1975 and informed of the complainant’s problem. In response, he picked up the complainant’s brother and went to Bovi-na where he met with the complainant and received the watch and other information about the occurrence from him. Minter and the complainant’s brother then proceeded to the scene of the alleged rustling. As they approached the complainant’s ranch, they started to turn down a one-lane private road which led to the area of concern, but noticed a vehicle was coming from the opposite direction. Consequently, they stopped to let the approaching vehicle out before they proceeded into the one-lane road.

The approaching vehicle was then recognized by Minter as appellant’s “Ford pickup; blue in color, 4-wheel drive, all mud grips on all four tires.” Appellant was driving, and his wife, child and brother, Curtis, were with him. Minter stopped the appellant, got out of his car, approached the pickup and spoke with appellant. Minter noticed some twine and “little old sticks of maize butts” or “some kind of butt hay” in the back of appellant’s pickup. After conversing momentarily, appellant went on his way. Minter had taken the twine and hay sample into his possession. He and complainant’s brother then proceeded to the scene of the alleged offense.

When they got there, Minter testified that “. . .we found a bunch of tracks, pickup tracks, and very few footprints, actually, because it was grass, covered with grass. I found some more butts, and some more twine.” The tire tracks “. were all mud grips and appeared to be front and back.” Minter further testified that:

“Well, the vehicle — as it appeared to me, the fence ran along like this, in this general direction, and it appeared to me that the pickup had backed in here to kind of make a little pocket, and all the action seemed to be right in this area between the pickup and the fence.”

Minter took some of the hay and twine found at the scene into his possession. The twine and hay were similar to that taken from the back of appellant’s pickup truck.

Minter and the complainant’s brother then went to appellant’s father’s farm. No one was there, but the complainant’s brother identified the missing calf there in the corral. They then proceeded to Friona to question the appellant.

On the way into Friona, Minter met and stopped appellant’s pickup which was coming from the opposite direction. He testified that appellant was still driving and his wife, child and brother, Curtis, were still with him. Minter testified that he approached the pickup and asked, “Has either one of you guys lost a watch?” To which appellant’s wife responded, “Curtis lost his.” Minter then said, “Curtis, when did you lose it?” Curtis replied, “Last night.” Minter then arrested appellant and his brother.

On cross-examination, Minter testified that he really couldn’t identify any footprints at the scene and that there was more than one set of mud grip tire tracks present. Although he could not tell for sure, Minter said his opinion was that a vehicle had been backed up against the fence. Minter also testified that appellant’s wife identified the watch as the one belonging to appellant’s brother.

Chester Woltmon, the complainant’s brother, testified that when he was at the scene of the alleged offense with his brother the twine there “was scattered out”; that when he returned with Deputy Minter “. . .it looked like it had been picked up and, then, was dropped, you know, in kind of a bunch.” Also, “. . . there was fresh tracks that we — where we had run over these tracks going out, there was fresh tracks that had been made since we— since Jack (complainant) and I had left that morning.”

The appellant did not take the stand nor did he offer any evidence.

In summary, the State proved:

(1) that an offense occurred;

(2) that appellant was at the scene of the offense at a point in time after it had been committed;

(3) that appellant’s vehicle may have been there before this time;

(4) that appellant’s brother was at the scene of the alleged offense about the time it could have occurred.

There was no evidence of flight when appellant was spotted at the scene of the offense nor did the State prove that the calf was in the possession of the appellant.

“In determining whether circumstantial evidence is sufficient to support a conviction, each case must necessarily be tested by its own facts.” Moore v. State, 532 S.W.2d 333, 337 (Tex.Cr.App.1976).

“In order to sustain a conviction based upon circumstantial evidence, the circumstances must exclude every other reasonable hypothesis except that of the guilt of the accused.” Reed v. State, 22 S.W.2d 456, 458 (Tex.Cr.App.1929). Not only must the offense charged be proved to have been committed, “. . . but there should also be proof to a degree of certainty greater than a mere probability or strong suspicion tending to establish that the party charged was the person who committed it or was a participant in its commission.” Id.

“In ascertaining whether the guilt of the accused has been established to a moral certainty, the appellate court will review the evidence in light of the presumption that the accused is innocent. The court will not presume any acts against the accused that are not shown to have been committed by him. Furthermore, a conviction will not be sustained on appeal if the evidence does not sufficiently establish all material elements of the offense charged.” Culmore v. State, 447 S.W.2d 915, 916 (Tex.Cr.App.1969), quoting, 24 Tex.Jur.2d, Evidence, Section 742, pp. 424 — 425; accord, Ysasaga v. State, 444 S.W.2d 305, 309 (Tex.Cr.App.1969).

Mere presence at the scene of the crime is not sufficient alone to show guilt. Moore, supra, at 337. “The unexplained possession of recently stolen property is always a circumstance from which an inference of guilt arises.” Otts v. State, 135 Tex.Cr.R. 187, 117 S.W.2d 463, 464 (1938). And while the accused may be convicted of theft without being seen or found in the possession of stolen property, McNeely v. State, 117 Tex.Cr.R. 587, 34 S.W.2d 873 (1931, On Motion for Rehearing), the inability of the State to prove possession is a factor which must be considered in circumstantial evidence cases. Lattimore v. State, 109 Tex.Cr.R. 318, 4 S.W.2d 552, 553 (1928).

Applying the rules above, we are of the opinion that the evidence dees not . . point to the guilt of the appellant with the cogency which the law demands to overcome the presumption of innocence and to exclude every reasonable hypothesis except the guilt of the accused.” House v. State, 20 S.W.2d 792, 794 (Tex.Cr.App.1929, On Motion for Rehearing). The evidence is insufficient. “The circumstances show that appellant is probably guilty, but this is not enough.” Reed, supra, at 458.

The judgment is reversed and the cause remanded.

      . We note that the trial court did not instruct on the law of parties or criminal responsibility, Secs. 7.01, 7.02, V.A.P.C., nor was this theory submitted in the application of the law to the facts. Consequently, the jury could not properly convict under this theory. See Romo v. State (No. 52,806, Opinion on Appellant’s Motion for Rehearing; delivered May 18, 1977).


author: ODOM, Judge.

text:
    Gilberto ARAIZA, Appellant, v. The STATE of Texas, Appellee.
    No. 53661.
    Court of Criminal Appeals of Texas.
    Sept. 21, 1977.
    Charles P. Fincher, Brownsville, court appointed, for appellant.
    Selden N. Snedeker, Dist. Atty., Wilson J. Seldon, Jr., Asst. Dist. Atty., Brownsville, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for burglary of a habitation. Punishment was assessed by the court at 5 years.

The facts of the case indicate that the home of C. D. Loop was burglarized on August 21, 1975. C. D. Loop and his wife were away from their home and out of the state at the time. Mr. and Mrs. Loop had left the care of the house entrusted to their two sons and their daughters-in-law.

The appellant contends that there is a fatal variance between the allegations in the indictment and the proof as to ownership and lack of consent. With this contention we must agree.

The indictment in question charges in relevant part that the appellant “with intent to commit theft, enter[ed] a habitation which was not open to the public, without the effective consent of C. D. Loop, the owner. . . . ”

At trial C. D. Loop did not testify, nor did the state offer any evidence on whether or not C. D. Loop had given his effective consent to the appellant. The state did call Mrs. Loop who testified that she gave no consent, and C. D. Loop’s son, Leonard Ray Loop, who had been entrusted with the care of the residence during the Loops’ absence, testified that he had given no such consent to the appellant.

The state has the burden of proving “the allegation of ownership as laid in the indictment.” Gilbreath v. State, 158 Tex.Cr. 616, 259 S.W.2d 223; Easley v. State, 167 Tex.Cr. 156, 319 S.W.2d 325.

Under Article 21.08, V.A.C.C.P., the state is free to allege ownership in either the actual owner of property or in another person who has the possession of the property. Thus, even if the proof showed that A was the title owner of the property, an allegation that B was the owner with proof that B had possession of the property at the time of the offense would present no variance and would be sufficient under the law. Clark v. State, Tex.Cr.App., 527 S.W.2d 527. This Court has previously held that:

“When one leaves the state, and asks another to look after his property, or take care of it while he is away, this would support an allegation of ownership and possession in this special owner.” Davidson v. State, 86 Tex.Cr. 248, 216 S.W. 624.

In the instant case, however, ownership was not alleged in the special owner.

The state in its brief cites Roberts v. State, Tex.Cr.App., 513 S.W.2d 870, for the proposition that where one person is in custody or control of property which is stolen and which belongs to another, an allegation of ownership in either the actual owner or the special owner is sufficient. This proposition is merely a statement of what may be alleged pursuant to Art. 21.08, V.A.C.C.P. It does not alter the state’s burden to prove the facts that it does allege.

In the instant case, although the state presented evidence that Leonard Ray Loop was a special owner and that he had not given his effective consent to the appellant’s alleged entry into his father’s home, the indictment contained no such allegation. Likewise, the indictment did not allege that Mrs. Loop was the owner of the habitation burglarized. In Roberts, supra, the indictment alleged ownership of the property in Jack Dahlstrom. Jack Dahlstrom did not testify and the evidence failed to show that he owned the property in question. The special owner of the property testified, but he was not alleged to be an owner. Because of the state’s failure in proving the allegation of ownership in the indictment, the conviction was reversed.

It was incumbent upon the state to prove ownership and lack of consent as alleged in the indictment. The failure to call C. D. Loop or to offer other evidence of his lack of effective consent, and the variance between the testimony of Leonard and Mrs. Loop and the allegations in the indictment, rendered the evidence insufficient.

Because of this variance between the allegation and proof of ownership and consent in the indictment, the state has not met its burden of proving the allegations “as laid in the indictment,” Gilbreath, supra, and accordingly the judgment must be reversed.

In view of our disposition, other grounds of error will not be discussed.

The judgment is reversed and the cause remanded.


author: GREEN, Commissioner.

text:
    Billy Wayne SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 53779.
    Court of Criminal Appeals of Texas.
    Sept. 21, 1977.

      Roland H. Hill, Jr., and Robert C. Roe, Jr., Port Worth, for appellant.
    Tim C. Curry, Dist. Atty., Marvin Collins and David B. Lobingier, Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury appellant was convicted of rape of a mentally diseased woman. See V.T.C.A. Penal Code, Sec. 21.-02(b)(4). Punishment was assessed by the court at ten years.

In his sole ground of error, appellant contends the evidence is insufficient to show he knew the prosecutrix to be so mentally diseased and defective as to be incapable of appraising the nature of the act of sexual intercourse.

The record reflects that during the early morning hours of October 10, 1975 appellant was discovered by Colonial Gables Nursing Home employee Mrs. Grace Combs engaging in sexual intercourse with a forty-nine year old mentally retarded female patient, in her room at the Colonial Gables Nursing Home in Fort Worth. Mrs. Combs, who had worked with mentally retarded people for ten years, testified this patient was a “very mentally retarded” woman with “a mind of about a two or three year old kid,” and that she could not “understand and appraise the act of sexual intercourse.” Upon being discovered, appellant terminated the act and escaped. A week later, appellant was observed by Mrs. Combs working at Colonial Manor Nursing Home. Mrs. Combs advised the owner of Colonial Manor who also owned Colonial Gables Nursing Home that appellant was the man she observed having intercourse with prosecutrix. The police were called and appellant was arrested and charged with rape.

Doctor Kenneth Warnock testified that after having examined the prosecutrix on the morning of the alleged offense he concluded that prosecutrix “had experienced recent sexual intercourse and it was apparently, from all medical indications, her first experience.” Dr. Warnock categorized prosecutrix as being “no more than two or three years old in mental capacity” and unable to appraise or understand the act of sexual intercourse.

The evidence further revealed that although appellant was principally employed by Colonial Manor he also transported laundry from Colonial Manor to Colonial Gables three times a week and assisted in maintenance work there. Mrs. McCaskill, Assistant Administrator at Colonial Gables, testified that approximately a month prior to the offense she observed appellant “going down the hall one day to get him a coke or something and she (prosecutrix) was playing with him and walking with him and he was just playing with her.”

“. . . She was walking right in behind him like she was going to run over him or something.
“Q Okay. And by playing, you mean a cheerful, playful type—
“A Yes, yes, laughing, and she was, she just acted like — he didn’t know she was behind him, you know, to scare him or something.
“Q And so they played together there in the hall, just sort of playful, is that right?
“A Yes.
* * * * * *
“Q On that occasion, did she give the appearance of being a person of normal intelligence?
“A I’m sorry, I didn’t understand you.
“Q On that occasion did (prosecutrix) give the appearance of being a person of normal intelligence?
“A No, sir.
“Q And it was obvious that she was not on that occasion, was she?
“A (No audible response.)
“THE COURT: Answer out.
“THE WITNESS: That’s right.
* * * * * *
“Q Now relating to that incident in the hall when (prosecutrix) was following the Defendant, Billy Wayne Smith along the hall, I believe you testified he was laughing?
“A Yes, he was playing with her.
“Q So he was aware she was there?
“A Yes.
“Q If a person was having a playful time with her or being cheerful with her or cute with her or something like that, they could pretty quickly see what type of person she was?
“A Yes.”

Mrs. McCaskill, like witnesses Combs and Warnock, testified prosecutrix was mentally retarded, and had the mind of about a three year old child.

Further evidence adduced during the trial established that it was common knowledge among the employees of both nursing homes that prosecutrix was “mentally retarded.” Prosecutrix, whose “favorite pastime” was “playing ball,” was unable to speak normally but made squealing sounds. Prosecutrix was incapable of dressing herself and generally required assistance in going to the bathroom. Prosecutrix was not appellant’s wife. Prosecutrix was not present during the trial.

V.T.C.A. Penal Code, Sec. 21.02, provides in pertinent part:

“(a) A person commits an offense if he has sexual intercourse with a female not his wife without the female’s consent.
“(b) The intercourse is without the female’s consent under one or more of the following circumstances:
“(4) he knows that as a result of mental disease or defect she is at the time of the intercourse incapable either of appraising the nature of the act or of resisting it;”

On appeal appellant does not question the sufficiency of the evidence to show that he engaged in sexual intercourse with prosecu-trix or that prosecutrix was so mentally defective as to be incapable of appraising the nature of the act of sexual intercourse. Rather appellant complains the evidence is insufficient to support a finding that he knew “the complainant to be so mentally diseased and defective as made her incapable of appraising the nature of the act of sexual intercourse.”

We do not agree.

Bradford v. State, Tex.Cr.App., 477 S.W.2d 544, is instructive. In Bradford, the prosecutrix was an eighteen year old female who could not talk, eat, walk, or control her bodily functions and whose mental age was described as being that “of a child from one to two years old.” This Court held the evidence sufficient to support a jury finding that defendant should have been aware that prosecutrix was so mentally diseased as to be unable to give consent. In the instant case prosecutrix was a forty-nine year old mentally retarded female who was unable to talk and whose mental age was characterized by witnesses as being that of a “two or three year old.” Additionally appellant worked as a maintenance man at the nursing home and had “played with” prosecutrix in the past, and by such contact must have known that prosecutrix was so mentally diseased or defective as to be incapable of appraising the act of sexual intercourse. We hold the evidence sufficient to support the verdict. See and compare Sanchez v. State, Tex.Cr.App., 479 S.W.2d 933; Harris v. State, Tex.Cr.App., 474 S.W.2d 706.

The judgment is affirmed.

Opinion approved by the Court.

      . Bradford was decided under prior law, Art. 1183, V.A.P.C. Penal Code, Art. 1183, provided that the female must be so mentally diseased as “to have no will to oppose the act of carnal knowledge, the person having carnal knowledge knowing her to be so mentally diseased.” V.T.C.A. Penal Code, Sec. 21.02(b)(4), the law in effect at the time of the commission of the instant offense, broadens the law’s protection to cover mental defectives and focuses the test on prosecutrix’s ability to appraise the nature of the act or her ability to resist it. See Practice Commentary, V.T.C.A. Penal Code, Sec. 21.02.


text:
    Robert R. TREVINO, Appellant, v. The STATE of Texas, Appellee.
    No. 53785.
    Court of Criminal Appeals of Texas.
    Sept. 21, 1977.

      Russ W. Henrichs, Dallas, for appellant.
    Gene Knize, County Atty. and Constance Smith McGuire, Asst. County Atty., Wax-ahachie, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury appellant was convicted of unlawfully carrying a handgun. See V.T.C.A. Penal Code, Sec. 46.02. Punishment was assessed by the jury at ninety days in jail and a fine of five hundred dollars.

The question presented in this case is whether appellant, who is represented by retained counsel on appeal, voluntarily and knowingly made a waiver of his right to counsel and that he represented himself without the obligatory warnings and admonishments. See Barbour v. State, Tex.Cr.App., 551 S.W.2d 371. It is well settled that criminal defendants in misdemeanor cases are entitled to counsel if there exists a possibility that imprisonment may be imposed. • See Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Ex parte Herrin, Tex.Cr.App., 537 S.W.2d 33; Walker v. State, Tex.Cr.App., 486 S.W.2d 330. However, an accused may waive his right to counsel if such waiver is made voluntarily with knowledge of the consequences thereof. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Barbour v. State, supra; Thomas v. State, Tex.Cr.App., 550 S.W.2d 64; Parker v. State, Tex.Cr.App., 545 S.W.2d 151. To assure protection of so fundamental a right, courts indulge every reasonable presumption against waiver of counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Barbour v. State, supra; Thomas v. State, supra. A heavy burden rests upon the prosecution to demonstrate an intelligent, voluntary and knowing waiver of constitutional rights, particularly as applied to the right to retained or appointed counsel. Barbour v. State, supra; Ex parte Bird, Tex.Cr.App., 457 S.W.2d 559.

The standard to determine waiver of the right to counsel was articulated in Faretta v. California, supra. The record must show the defendant is competent to waive right to counsel, and that he knowingly and intelligently has done so after being made aware of the advantages and disadvantages of self-representation so that the record shows “[that] he knows what he is doing and his choice is made with his eyes open.” Id., 422 U.S. at 835, 95 S.Ct. at 2541; Barbour v. State, supra; Webb v. State, Tex.Cr.App., 533 S.W.2d 780. When an accused makes known his desire to represent himself, the question before the judge is not whether the defendant is professionally capable of acting as his own attorney, but whether the defendant understands the charges against him and is fully aware that he will be on his own in a complex area where experience and professional training are greatly to be desired.

The only evidence reflected in the record concerning appellant’s waiver of right to counsel and decision to represent himself at trial is contained in the judgment of the trial court and the court’s remarks made during the punishment stage of the trial. The judgment recites in pertinent part:

“On the 17th day of December, 1975, this cause was called for trial, the State appeared by her County Attorney, and the Defendant, Robert R. Trevino, appeared in person, after having been informed at Court appearances on November 25,1975, and again on December 15, 1975, of his right to representation by counsel and the date of trial, and further prior to trial having been found not to be too poor to employ counsel. The Defendant, Robert R. Trevino, having been duly arraigned, pleaded not guilty to the information herein and a jury, to-wit: Michael V. Greenlee and five others, was duly selected, impaneled and sworn, who having heard the evidence submitted, and having been duly charged by the Court, and after argument of counsel retired to consider of their verdict, and afterwards returned into open Court in due form of law the following verdict, which was received by the Court, and is here now entered upon the minutes, to-wit:
“ ‘We, the Jury, find the Defendant Guilty.’ ”

The court’s remarks made during the punishment phase bearing on appellant’s waiver are as follows:

“MR. TREVINO: Everything I bring up, Your Honor, seems to be cut short. I don’t know the law—
“THE COURT: Okay. Do you have any more questions of this man?
“MR. TREVINO: Yes, sir.
“THE COURT: All right.
“Q (By Mr. Trevino): On December the 5th, were you on duty?
“A I can’t recall. If I had a calendar — I probably could have been, if it was on Monday or Tuesday, I was.
“MR. TREVINO: Your Honor, I don’t know. I asked for assistance before this trial started—
“THE COURT: Excuse me. Ladies and gentlemen, members of the jury, if you would go with the bailiff outside here, and we will call you back in just a second.
“(Whereupon the jury left the Courtroom, and the following proceedings were had:)
“THE COURT: Now, you listen to me, Mr. Trevino. Today, you have tried the Court’s patience as long as I’m going to let you. Now, you don’t have an attorney, because of your fault. You had two months, three Court appearances plus saying you were going to represent yourself, until today we got this jury up here. Now, I instructed you this morning not to belabor the point in front of this jury.”
* * * * * *
“THE COURT: Do you understand about this lawyer business?
“MR. TREVINO: Yes, sir.
“THE COURT: Do you understand it’s your fault you don’t have an attorney? You had over two months and three Court appearances, plus a Court appearance Monday. Every time I encouraged you to get one. You said, ‘No, I’m going to do it myself,’ until you get up in front of this jury, then you want a lawyer.
“Don’t try to tell me that. So, we are going to finish this trial without any more of that, unless you just want to see how far I will go.
“MR. TREVINO: Your Honor?
“THE COURT: I have been very patient with you today.
“MR. TREVINO: I try to do my best. I’m trying to do my best. I’m not a bar, you know, I tried to locate one, which I believe I tried to call one. I don’t know. I tried to call my attorney. Your Honor, let me ask you this. “THE COURT: I don’t want to hear another word about this attorney business. You go out yesterday and try to hire you an attorney for this morning, and he calls me last evening. Now, that’s absurd. It’s your own fault you don’t have a lawyer. Quit scuffing your heels about it and apologize for it.”

The court’s judgment and remarks tend to establish that appellant, having been found not to be indigent, was informed by the court of his right to employ counsel, which he waived in order to represent himself. Such proof, however, fails to establish that appellant’s waiver was “intelligent,” or that appellant was made aware of the dangers and disadvantages of self-representation. As we observed in Ex Parte Auten, Tex.Cr.App., 458 S.W.2d 466, quoting from Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1952) as follows:

“Presuming waiver from a silent record is impermissible. The record must show or there must be an allegation and evidence which show, that an accused was offered counsel, but intelligently and understanding^ rejected the offer. Anything less is not waiver.”

The record not being sufficiently developed to show that appellant knowingly and intelligently waived his right to counsel after being made aware of the advantages and disadvantages of self-representation, the judgment is reversed and the cause remanded.

Opinion approved by the Court.

ODOM, J., dissents.

      . We do not condone appellant’s attempt to delay trial by his decision on the eve of trial to forego self-representation and retain counsel. Had the record in the instant case reflected appellant’s knowing and intelligent waiver of his right to counsel, he would not be heard to complain on appeal of being forced to trial without counsel, as such a complaint is obviated by his attempt to manipulate his right to counsel. See Rodriguez v. State, Tex.Cr.App., 530 S.W.2d 944; White v. State, Tex.Cr.App., 496 S.W.2d 642.

      . See and compare the colloquy between the court and the accused in Davis v. State, Tex.Cr.App., 398 S.W.2d 940 and Barbour v. State, 551 S.W.2d 371.


text:
    Vernon KEY, Appellant, v. The STATE of Texas, Appellee.
    No. 53812.
    Court of Criminal Appeals of Texas.
    Sept. 21, 1977.
    William H. Scott, Jr., Houston, for appellant.
    Ronald L. Wilson, Dist. Atty. and David E. Garner, Asst. Dist. Atty., Galveston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of theft of services. See V.T.C.A. Penal Code, Sec. 31.04(a)(1). Punishment was assessed at a fine of twenty-five dollars.

The record reflects that in the evening of November 29, 1975, appellant and his wife went to the Balinese Room in Galveston, incurred a bill of $28.75 for beverages ordered and consumed by them there, and engaged in a physical altercation with employees of the establishment. Although appellant had more than enough money in his wallet to pay the bill, he declined to pay. Officers were called, and appellant and his wife were arrested.

Appellant’s eighth ground of error reads: “The trial court misinformed and misdirected the jury in the court’s charge in that part wherein, in the application of the law to the facts, the jury was instructed that it might convict the defendant if it found the performance of service was secured ‘by deception, threat, or false token’, for the reason (as pointed out in defendant’s objections and exceptions to the court’s charge which was heard and overruled by the trial court (R 164)) that the charge permitted the jury to convict defendant for a different offense than that charged in the complaint and information, which charged commission of the offense, not by deception or threat, but by false token alone.”

The information and the. complaint charged that on November 29,1975, in Galveston County,

“Vernon Key did then and there with intent to avoid payment for alcoholic beverage service that he knew was provided by Balinese Room only for compensation, did intentionally and knowingly secure performance of said service of the value of more than twenty dollars ($20.00) but less than two hundred dollars ($200.00) by false token, to-wit: by obtaining the alcoholic beverage service and refusing to pay for it . .”

V.T.C.A. Penal Code, Sec. 31.04, Theft of Service, Subsection (a)(1), provides:

“(a) A person commits theft of service if, with intent to avoid payment for service that he knows is provided only for compensation:
“(1) he intentionally or knowingly secures performance of the service by deception, threat, or false token; or

In the charge to the jury, the court after setting out the substance of the above portion of Sec. 31.04 of the Code stated:

“You are further instructed that in the event you do find beyond a reasonable doubt that the defendant ‘did on or about the 29th day of November 1975 with intent to avoid payment for service that he knew was provided only for compensation did intentionally and knowingly secure performance of an alcoholic beverage service from the Balinese Room by deception, threat, or false token’ and said service was valued at $20.00 or more but less than $200.00, you will find the defendant guilty and so say by your verdict.
“You are further instructed that in the event you do not find beyond a reasonable doubt that the defendant did on or about the 29th day of November 1975, with intent to avoid payment for service, that he knew was provided only for compensation, did intentionally and knowingly secure performance of the service from the Balinese Room by deception, threat, or false token, and that said service was valued at $20.00 or more, but less than $200.00, or if you have a reasonable doubt thereof, you then acquit the defendant and find the defendant not guilty.” (Emphasis added)

Appellant timely in writing objected to the foregoing portions of the charge, since they “fail to limit the law to a violation accomplished by false token (the means alleged in the information).” The objection was overruled by the court.

In Morter v. State, Tex.Cr.App., 551 S.W.2d 715, in holding as fundamental reversible error a provision in the court’s charge allowing the jury to convict if it found the defendant guilty of conduct under the applicable statute which conduct was not alleged in the indictment, this Court said:

“We now turn to the fundamental error which we recognize. ‘It is fundamental that a conviction for an offense cannot stand unless the charge authorized the jury to find a defendant guilty only for conduct constituting that offense (citation); the indictment alleged such conduct (citations); and the evidence at trial showed such conduct (citations).’ (Emphasis added). Dowden v. State, 537 S.W.2d 5, 6 (Tex.Cr.App.1976).
“In Moore v. State, 84 Tex.Cr.R. 256, 206 S.W. 683 (1918), this Court recognized fundamental error and held that:
‘Wherever the indictment charges an offense, the facts and the charge of the court must conform to the charges contained in the indictment, and it is fundamentally wrong to authorize a conviction on any state of facts other than those which support the finding of the truth of the indictment.’ Id., at 684.
* * * * * *
“In Gooden v. State, 140 Tex.Cr.R. 347, 145 S.W.2d 177 (1940), this Court found fundamental error and held:
‘The rule is universal and has been emphasized frequently by appellate courts, and in a great number of cases by the appellate courts of this state, that the charge must be limited to the allegations in the indictment. A jury would not be authorized to convict appellant of any other offense than that specifically charged, and the court should confine the consideration of the jury in the charge to the allegation contained in the indictment.’ Id., at 178, quoting, Emerson v. State, 54 Tex.Cr.R. 628, 114 S.W. 834, 835 (1908).”
See also Ross v. State, 487 S.W.2d 744.

In the instant case the information alleged the violation “by false token, to-wit,” etc. Although it did not allege a violation by deception or threat, the court authorized a conviction if the jury found a violation by either of those means, as well as false token, and required a reasonable doubt as to whether appellant did commit the offense by false token, deception, or threat in order to return a verdict of not guilty. The court erred to the prejudice of appellant in authorizing a conviction on conduct not alleged in the information.

We need not decide whether this case presents fundamental error since appellant timely objected to the failure of the court to limit the law to a violation by false token, as alleged in the information, and appellant presents the error on appeal in his eighth ground. The contention made in such ground of error is sustained. The judgment is reversed, and the cause is remanded.

Opinion approved by the Court.


author: DOUGLAS, Judge.

text:
    Linda McIVER, Appellant, v. The STATE of Texas, Appellee.
    No. 54616.
    Court of Criminal Appeals of Texas.
    Sept. 21, 1977.

      Anthony F. Constant, Corpus Christi, court appointed on appeal, for appellant.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

Linda Mclver appeals from a conviction for the offense of murder. Trial was before the court. Punishment was assessed at fifty years.

Appellant contends that the evidence is insufficient to sustain the conviction. She argues that there was a material variance between the indictment and the proof as to the manner and method of death.

The indictment alleges that the deceased was struck and stabbed with a blunt instrument and a sharp instrument “which were, to the grand jurors, unknown.”

When an indictment alleges that the deceased was killed “by some means, instrument, and weapon, to the grand jury unknown,” it is incumbent upon the State to prove that the grand jury, after efforts to do so, was unable to find out the kind and character of weapon or instrument used. No such proof was offered in the instant case. Under our prior decisions, such failure constitutes reversible error. Jones v. State, 132 Tex.Cr.R. 216, 104 S.W.2d 42 (1937). See 4 Branch’s Ann.P.C.2d, Section 2261, page 622.

For the reasons stated above, the judgment is reversed and the cause is remanded.


text:
    Ex parte Frank SMITH (two cases).
    Nos. 55746, 56146.
    Court of Criminal Appeals of Texas.
    Sept. 21, 1977.

      William V. Dunnam, Jr., Waco, for appellant.
    Ronald D. Earle, Dist. Atty. and Phillip A. Nelson, Jr., Asst. Dist. Atty., Austin, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

These are appeals from orders denying bail. The appellant is indicted in Cause No. 52,244 in the 147th District Court of Travis County; both of these appeals are from orders denying bail on this charge. The order denying bail in our Cause No. 55,746 was entered on August 1, 1977 in the 147th District Court of Travis County. A docket entry in the record shows that the cause was transferred from the 147th District Court of Travis County to the 216th District Court of Gillespie County on August 18. The order denying bail in our Cause No. 56,146 was entered on September 12 in the 216th District Court of Gillespie County. The records are substantially the same, and we have consolidated these appeals.

The appellant was indicted on January 26,1977. He was charged with committing the offense of aggravated robbery; two prior felony convictions were alleged to enhance the penalty. In Ex parte Smith, 548 S.W.2d 410 (Tex.Cr.App.1977) on a prior appeal from an order denying bail on the same charge, this Court held that the trial court had properly denied appellant bail under the authority of the Texas Constitution, Article 1, Section 11a, V.A.T.C. which provides:

“Any person accused of a felony less than capital in this State, who has been theretofore twice convicted of a felony, the second conviction being subsequent to the first, both in point of time of commission of the offense and conviction therefor may, after a hearing, and upon evidence substantially showing the guilt of the accused, be denied bail pending trial, by any judge of a court of record or magistrate in this State; provided, however, that if the accused is not accorded a trial upon the accusation within sixty (60) days from the time of his incarceration upon such charge, the order denying bail shall be automatically set aside, unless a continuance is obtained upon the motion or request of the accused; provided, further, that the right of appeal to the Court of Criminal Appeals of this State is expressly accorded the accused for a review of any judgment or order made hereunder.”

The cause was originally set for the trial on March 28 in the 147th District Court of Travis County. On March 22 the judge of the 147th District Court granted a legislative continuance until thirty days after adjournment of the regular session of the 65th Legislature. The continuance was granted pursuant to the appellant’s motion under the provisions of Art. 2168a, V.A.C.S., which reads as follows:

“In all suits, either civil or criminal, or in matters of probate, pending in any court of this State, and in all matters ancillary to such suits which require action by or the attendance of an attorney, including appeals but excluding temporary restraining orders, at any time within thirty (80) days of a date when the Legislature is to be in Session, or at any time the Legislature is in Session, or when the Legislature sits as a Constitutional Convention, it shall be mandatory that the court continue such cause if it shall appear to the court, by affidavit, that any party applying for such continuance, or any attorney for any party to such cause, is a Member of either branch of the Legislature, and will be or is in actual attendance on a Session of the same. If the member of the Legislature is an attorney for a party to such cause, his affidavit shall contain a declaration that it is his intention to participate actively in the preparation and/or presentation of the case. Where a party to any cause or an attorney for any party to such cause is a Member of the Legislature, his affidavit need not be corroborated. On the filing of such affidavit, the court shall continue the cause until thirty (30) days after the adjournment of the Legislature and such affidavit shall be proof of the necessity for such continuance, and such continuance shall be deemed one of right and shall not be charged against the party receiving such continuance upon any subsequent application for continuance. It is hereby declared to be the intention of the Legislature that the provisions of this Section shall be deemed mandatory and not discretionary.
“Notwithstanding the foregoing, the right to such continuance, where such continuance is based upon an attorney in such cause being a member of the Legislature, shall be discretionary with the Court in the following situations and under the following circumstances, and none other, to wit:
“(1) Where such attorney was employed within 10 days of the date such suit is set for trial.”

The appellant’s motion for the continuance was in proper form and supported by the affidavit of the Honorable Craig A. Washington. It was alleged that Washington, a member of the 65th Legislature, was an attorney representing the appellant in this cause.

The regular session of the 65th Legislature adjourned on May 30. The appellant’s trial had been set for July 11 in the 147th District Court. On July 1, the following order was entered in the 147th District Court:

“ORDER
“On this the 1st day of July, 1977, this Court further considered the Motion for a Legislative Continuance heretofore file(l in this cause by the defendant’s attorney of record, the Honorable Craig Washington, and the said Craig Washington, having informed the Court that he desires a further legislative continuance, the Court, taking notice of the fact that the Governor of Texas has called and declared a Special Session of the 65th Legislature of the State of Texas to convene on the 11th day of July, 1977, and that the Honorable Craig Washington is a duly elected Representative for the County of Harris of the State of Texas, in said Legislature of the State of Texas.
“It is therefore ORDERED that the Defendant’s Motion for a Legislative Continuance, having been again considered, is further granted, and is therefore ORDERED that this pending cause be further continued until the expiration of the 30th day following the adjournment of the Special Session of the 65th Legislature of the State of Texas.
“/s/ Mace B. Thurman. Jr. JUDGE
147th Judicial District Court Travis County, Texas”

The appellant did not file an additional written motion prior to the granting of the July 1 order. This order was entered pursuant to an oral communication of Representative Washington, who was and still is one of the appellant’s attorneys; the communication was not made in open court, but by telephone.

The Special Session of the Legislature adjourned on July 21. A docket sheet entry reflects that the cause was set for pretrial hearing on August 18 and for trial on August 29.

The appellant’s habeas corpus petition seeking bail was heard and denied in the 147th District Court on August 1, and the following order was entered:

“JUDGMENT DENYING BAIL TO PETITIONER AND FINDING OF FACT AND CONCLUSION OF LAW

“On this 1st day of August, 1977, came on to be heard the Writ of Habeas Corpus issued herein on the 25th day of July, 1977, and the Court having found the facts as stipulated by the parties herein and having concluded therefrom that as a matter of law a continuance was requested by the accused through his attorney of record, Craig Washington, for the period of the Special Session of the Legislature set out in said Stipulation and that by reason thereof Petitioner is precluded from release under that part of Sec. 11a of Art. 1 of the Constitution of the State of Texas upon which he solely seeks relief herein, it is, therefore,
“ORDERED, ADJUDGED AND DECREED that bail be and is hereby denied Petitioner in cause number 52,244 in this Court.
“It is further, ORDERED that the above constitutes the findings of fact and conclusions of law of the Court herein.
“/s/ Tom Blackwell Judge Presiding”

The appellant’s habeas corpus petition seeking bail was heard and denied in the 216th District Court on September 12, and the following order was entered:

“ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

“This the 12th day of September, 1977, came on to be heard the Application for Writ of Habeas Corpus of Frank Smith, hereinafter referred to as Petitioner, and came Petitioner in person and by counsel and announced ready for hearing of said application, and came Respondent by and through the District Attorney of Travis County, Texas, and announced ready for such hearing, and the Court, having heard and considered the evidence of both parties and the argument of counsel, makes the following findings of fact, and conclusions of law and order, to-wit:
“I.
“FINDINGS OF FACT
“1. The Honorable Craig A. Washington was retained by Petitioner to serve as his counsel in the above-styled and numbered cause on March 5, 1977, and has remained as an attorney of record for Petitioner continuously since such date.
“2. On February 2,1977, the 147th Judicial District Court of Travis County, Texas, rendered and entered an order denying bail to Petitioner in said cause, which order was affirmed by the Court of Criminal Appeals of Texas on March 23, 1977.
“3. Said cause was originally set to be tried on March 28,1977, in the 147th Judicial District Court of Travis County, Texas.
“4. On March 22, 1977, the 147th Judicial District Court of Travis County, Texas, granted a legislative continuance on the basis of a written motion signed and sworn to by Petitioner and his attorney, the Honorable Craig A. Washington, and re-set said cause to be tried on July 11, 1977.
“5. On July 1, 1977, the Governor of Texas announced the calling of a Special Session of the 65th Legislature to be convened on July 11,1977.
“6. On July 1,1977, the Honorable Craig A. Washington advised the Honorable Mace B. Thurman, Jr., a Judge of the 147th Judicial District Court of Travis County, Texas, by telephone that he, the said Craig A. Washington, desired a legislative continuance in Petitioner’s case.
“7. On July 1,1977, following the advice set forth in Paragraph 6 above, the 147th Judicial District Court of Travis County, Texas, entered an order granting a legislative continuance in the trial of said cause until the 30th day following adjournment of the Special Session of the 65th Legislature.
“8. The Special Session of the 65th Legislature adjourned on July 21, 1977.
“9. Prior to July 11, 1977, Petitioner, personally, and his other counsel of •record, the Honorable W. V. Dun-nam, Jr., learned of and were cognizant of the order entered on July 1, 1977, continuing the trial of said cause until the 30th day following the adjournment of the Special Session of the 65th Legislature, but never attacked such order or repudiated the authority of the said Craig A. Washington to request same in behalf of Petitioner until the filing of this application on September 8, 1977.
“II.
“CONCLUSIONS OF LAW
“1. The Honorable Craig A. Washington was entitled to request a legislative continuance for the Special Session of the 65th Legislature, and such continuance was mandatory pursuant to Article 2168-a (Y.A.C.S.)
“2. The relationship of attorney and client is one of agent and principal. 7 Tex.Jur.2d, Part 1, Attorneys At Law, Section 50, Page 77, and authorities cited therein.
“3. Ordinarily, the action of the attorney, as the representative of his client in the conduct of the case, will be binding on the client in all matters where by law the client is not specially required to act for himself. 7 Tex.Jur.2d, Part 1, Attorneys At Law, Section 80, Page 117 and authorities cited therein.
“4. Petitioner (the accused) was not required to join in making of the request for a legislative continuance. Cuellar v. State, 521 S.W.2d 277 (Tex.Cr.App.1975).
“5. By knowingly and voluntarily electing to not repudiate, rescind or question the authority of the said Craig A. Washington to request the legislative continuance granted by order of the 147th Judicial District Court of Travis County, Texas on July 1, 1977, Petitioner ratified such request from its inception. 2 Tex.Jur.2d, Agency, Sections 79, 93,103 and 104, and authorities cited therein.
“6. The continuance granted by order of the 147th Judicial District Court of Travis County, Texas, dated July 1, 1977, was ‘obtained’ upon the ‘request’ of ‘the accused’ within the meaning of Article 1, Section 11-a, Constitution of The State of Texas.
“It is accordingly ORDERED, ADJUDGED AND DECREED that Petitioner’s application for writ of habeas corpus be and the same is hereby denied, and Petitioner is remanded to the custody of the Sheriff of Travis County, Texas, in compliance with the order of the 147th Judicial District Court of Travis County, Texas, dated February 2, 1977 denying bail to Petitioner, to which ruling Defendant duly excepts and gives notice of appeal to the Court of Criminal Appeals of Texas at Austin, Texas.
“Signed and entered this 12th day of September, 1977.
“/s/ Robert R. Barton Judge Presiding”

There was no objection to the findings of fact made by the Judge of the 216th District Court, and these findings are supported by the record, which consists of stipulated evidence. The trial court’s conclusions of law were correct.

When a defendant files a motion supported by an affidavit under the provisions of Art. 2168a, V.A.C.S., the trial court has no discretion and must grant the continuance if it appears to the court that an attorney for the defendant is a member of the Legislature and will be or is in actual attendance of a session of the Legislature. Cuellar v. State, 521 S.W.2d 277 (Tex.Cr.App.1975). In this instance the trial judge had before him the appellant’s written motion for a legislative continuance which was filed on March 22. It was in proper form and supported by the affidavit of his attorney, who was a member of the 65th Legislature. The trial was set for July 11, over thirty days after the 65th Legislature— Regular Session adjourned. On July 11, the day the trial was to commence, the 65th Legislature — First Called Session convened. Although another written motion for continuance was not filed, Representative Washington, a member of the 65th Legislature, who still represented the appellant, made an oral request for a legislative continuance. The order granting the continuance requested by Representative Washington was entered on July 1. The appellant and other counsel who also represented appellant were aware sometime before July 11 that the continuance had been granted. They made no protest until the habeas corpus petition requesting bond was filed on July 25. In these circumstances the appellant is estopped from successfully asserting that he did not want the continuance which was granted on July 1. A defendant need not personally join counsel in a motion seeking a legislative continuance. Cuellar v. State, supra. The court could not set the appellant’s case for trial following the adjournment of the 65th Legislature — First Called Session until thirty days after it adjourned on July 21.

A defendant has a perfect right to seek a legislative continuance as the appellant did, but when he does and is also subject to the provisions of Article 1, Sec. 11a of our State Constitution, supra, we hold he may be detained without bail for sixty days following the day upon which the case could first be set for trial. It follows that the orders of both the 147th District Court and the 216th District Court denying bond should be affirmed.

The judgments are affirmed.

Opinion approved by the Court.

PHILLIPS, J., not participating.


author: J. CURTISS BROWN, Chief Justice.

text:
    Howard G. PURNELL, Appellant, v. Nora B. FOLLETT et al., Appellees.
    No. 1540.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Aug. 10, 1977.

      Robert B. Wallis, Ray A. Bass III, Haynes & Fullenweider, Houston, for appellant.
    Fred M. Lange, Tom Alan Cunningham, Fulbright & Jaworski, Houston, for appel-lees.
   J. CURTISS BROWN, Chief Justice.

In February 1974, Howard G. Purnell (Dr. Purnell or appellant) and Aimee Fol-lett Purnell (Mrs. Purnell or appellee) were granted a divorce. One of the items of community property divided between the two parties was a 52.66 acre tract of land which had been deeded to appellant during the marriage. As part of this conveyance, appellant assumed the unpaid balance on a promissory note which was secured by a vendor’s lien and a deed of trust covering the tract. The divorce decree awarded a one-half undivided interest in the tract to appellant and Mrs. Purnell and required each to assume one-half of the indebtedness.

On or about August 5, 1975, Nora B. Follett (Mrs. Follett or appellee) purchased the note secured by the deed of trust. Shortly after acquiring the note, Mrs. Fol-lett sent a letter to appellant which read in pertinent part:

This is the only letter I shall write to you in reference to this matter, and I shall not make any telephone calls to you relative thereto. If you make default in any of your monthly payments, I will declare the note matured and request that your half of the land be sold under the deed of trust, after placing the note in the hands of an attorney for collection. I hope that it will not be necessary that foreclosure be had under the deed of trust.

On September 16,1975, Nora Follett paid the delinquent taxes owing on the property. These taxes amounting to $1,351 had accumulated over a number of years. She then sent a second letter to appellant stating in part:

[A]s I was given the right under the deed of trust, I paid such taxes for you and Aimee as is shown by xerox copy of receipt issued September 16,1975, by Carl S. Smith, Tax assessor, Harris County. I now demand that you pay me immediately for your one-half of such taxes, payment to be made to me addressed to 3322 Cloverdale, Houston, Texas 77025.

On September 24, 1975, Mrs. Follett informed Alton C. Arnold, substitute trustee under the deed of trust, that she had paid the delinquent taxes and had made demand upon appellant for reimbursement which proved unsuccessful. She stated that she desired to mature the entire obligation as to appellant and that Mr. Arnold was to proceed with foreclosure of appellant’s one-half interest under the deed of trust.

On September 26, appellant’s son, Tim Follett Purnell, visited him in his office. He delivered a copy of the second letter and a copy of a receipt showing payment of the delinquent taxes. Appellant acknowledged receiving the instruments. Tim then said to appellant, “Granddaddy [Lewis H. Fol-lett] says that under the deed of trust executed by the Henrys, the taxes paid by Grandma are payable on demand. Granddaddy suggests that you read the Henry deed of trust.”

Thereafter, notices of the substitute trustee sale were duly posted, and on November 4, 1975, appellant’s one-half interest was sold to Aimee Purnell for $7,500.

In December of 1975, appellant filed suit against Nora Follett, Aimee Purnell, Alton Arnold and others to set aside the substitute trustee sale and enjoin transfer of the property. He alleged that Nora Follett gave no notice of his default and her intent to accelerate the note prior to foreclosure. The named defendants answered specially excepting to appellant’s petition and counter-claimed for declaratory judgment that the requirements of notice were complied with. The defendants filed a motion for summary judgment which was granted. From that judgment appellant now appeals.

Appellant’s single point of error complains that the trial court erred in granting summary judgment because there existed a genuine fact issue concerning the inadequacy of the price received and accepted at the foreclosure sale. He also states that there were other irregularities coupled with the grossly inadequate sales price, the more important one being the lack of notice that Nora Follett intended to mature the note due to appellant’s default in paying the delinquent taxes.

At the outset we note that a trustee’s sale under powers granted by a deed of trust is considered a harsh remedy and can only be exercised by strictly complying with the terms and conditions of the note and those imposed on the power of sale by the maker of the trust instruments. Crow v. Heath, 516 S.W.2d 225, 228 (Tex.Civ.App.-Corpus Christi 1974, writ ref’d n.r.e.). Enforcement of an acceleration clause in a note or deed of trust upon default must stand a strict scrutiny by the court. Crow v. Heath, 516 S.W.2d at 229; Hiller v. Prosper Tex., Inc., 437 S.W.2d 412, 415 (Tex.Civ.App.-Houston [1st Dist.] 1969, no writ).

Appellant alleged that the property was sold for less than 3 percent of its fair market value. The supreme court has expressly held, however, that mere inadequacy of consideration is not grounds for

setting aside a trustee’s sale. There must be evidence of irregularity, though slight, which must have caused or contributed to the sale at a grossly inadequate price. American Savings & Loan Ass’n of Houston v. Musick, 531 S.W.2d 581, 587 (Tex.Sup.1975). The sole question becomes, then, whether there was a lack of sufficient notice to appellant of the exercise of the option to mature the entire balance due. In the present case, the promissory note and deed of trust both contained clauses allowing for acceleration of the note upon default and foreclosure on the 52.66 acre tract respectively at the option of the holder. The clause in the note stated:

FAILURE TO PAY any portion of the principal or accrued interest on this note as the same becomes due according to the terms herein mentioned, or failure to carry out any of the undertakings agreed to be done by the maker or makers hereof in any instrument or instruments hereinafter recited to have been given as security for the payment of this note, shall, at the option of the holder or holders hereof, mature all of the unpaid portion of the principal and accrued interest due on this note at that time. [Emphasis added.]

The deed of trust provided that

the failure of the Grantors to pay such taxes or insurance premiums (or repay the holder of said indebtedness, upon demand, the amount so paid) shall constitute a breach hereof, and the legal holder of said indebtedness, or any part thereof, shall have the option to declare all of the indebtedness immediately due and payable and without demand upon, or notice to, the Grantors, to foreclose the lien of this Deed of Trust at Trustee’s sale or otherwise. [Emphasis added.]

Where the acceleration clause in a note leaves it optional with the holder whether he should declare the entire amount due upon failure to pay any installment of principal or interest, such holder cannot without presentment for payment, exercise this option to declare the entire amount due. Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 865 (Tex.Sup.1975); Faulk v. Futch, 147 Tex. 253, 214 S.W.2d 614, 616 (1948); Griffith v. Griffith, 252 S.W.2d 517, 518 (Tex.Civ.App.-Eastland 1952, writ ref’d n.r.e.); Brown v. Hewitt, 143 S.W.2d 223, 227 (Tex.Civ.App.-Galveston 1947, writ ref’d). The Tyler Court of Civil Appeals has recently held that presentment and demand is but one of three steps which must be taken before the right to accelerate may be exercised. Not only must there be formal demand for the delinquent payment, but also the holder of the note must give the obligor an opportunity to make such payment. Finally, he must declare the entire debt due or take some unequivocal action in that regard. Joy Corp. v. Nob Hill North Properties Ltd., 543 S.W.2d 691, 694 (Tex.Civ.App.-Tyler 1976, no writ). The necessity for a demand for payment and notice of intent to accelerate is supported by Grow v. Heath, 516 S.W.2d at 227-28, Brown v. Hewitt, 143 S.W.2d at 227, Jernigan v. O’Brien, 303 S.W.2d 515, 516-17 (Tex.Civ.App.-Austin 1957, no writ) and Parker v. Mazur, 13 S.W.2d 174, 175 (Tex.Civ.App.-San Antonio 1928, writ dism’d). It has also been said that “[t]he intention to accelerate maturity must be evidenced by clear and unequivocal acts followed by affirmative action towards enforcing the declared intention”. Curtis v. Speck, 130 S.W.2d 348, 351 (Tex.Civ.App.-Galveston 1939, writ ref’d), quoted with approval in Jernigan v. O’Brien, 303 S.W.2d at 516; Crow v. Heath, 516 S.W.2d at 228. Moreover, to be effective, acceleration clauses in notes should be clear and unequivocal, and where there is a reasonable doubt as to the meaning of the terms employed, preference should be given to that construction which will avoid forfeiture and prevent acceleration of maturity. Ramo, Inc. v. English, 500 S.W.2d 461, 466 (Tex.Sup.1973); Motor & Indus. Fin. Corp. v. Hughes, 157 Tex. 276, 302 S.W.2d 386, 394 (1957).

On reviewing the two letters sent to appellant and his conversation with his son, we do not believe that the summary judgment evidence compels the conclusion that notice was given of Nora Follett’s intent to mature and accelerate the installment note by reason of appellant’s failure to pay the delinquent taxes. The first letter (in advance of default) does state that upon “default in any of your monthly payments, I [Nora Follett] will declare the note matured and request that your half of the land be sold under the deed of trust . . . However, the intent to mature the note was conditioned upon a default in “monthly payments.” There is no reference, even by implication, to payment of property taxes. The only communication between the two parties concerning payment of taxes was in the second letter in which Nora Follett stated that she had paid the delinquent taxes and that “I now demand that you pay me immediately for your one-half of such taxes . .” Although this was clearly a proper demand, it did not give sufficient notice to appellant that if he failed to reimburse Nora Follett for her payment of the taxes, she would then mature the entire indebtedness.

Appellees argue that under the terms of the promissory note and deed of trust, notice of acceleration was expressly waived by appellant. The note provided:

All makers, sureties and indorsers are jointly and severally liable herefor, and with reference hereto, waive grace, protest, notice, demand, diligence, presentation and time of commencement of suit, and consent that additional security may be taken herefor and/or the time of payment hereof may be extended without notice and without releasing the liability of any maker, surety or indorser.

In addition, the deed of trust contained two clauses which appellees alleged established a waiver of notice.

It is expressly provided that the recitals in the conveyance made to the purchaser, either by the Trustee or any substitute Trustee, shall be full proof and evidence of the matters therein stated, and no other proof shall be requisite of the performance of this trust, the request by the holder of said indebtedness on the Trustee to enforce this trust, or of the advertisement or sale, or any particulars thereof, or of the removal or inability, refusal or failure of the Trustee or Substitute Trustee to act, or of the resignation of the Trustee, or of the appointment of a Substitute Trustee as herein provided, either as to the legality of his appointment or otherwise, or of the contingencies which brought about the failure or inability of the Trustee to act, and all prerequisites of said sale shall be presumed to have been performed, and any recitals in and deed from the Trustee or any Substitute Trustee may be taken and construed in any court as prima facie evidence of the facts recited.
******
[Fjailure of the Grantors to pay such taxes or insurance premiums (or repay the holder of said indebtedness, upon demand, the amount so paid) shall constitute a breach hereof, and the legal holder of said indebtedness, or any part thereof, shall have the option to declare all of the indebtedness immediately due and payable and without demand upon, or notice to, the Grantors, to foreclose the lien of this Deed of Trust at Trustee’s sale or otherwise. [Emphasis added.]

In support of their argument, appellees have cited Whalen v. Etheridge, 428 S.W.2d 824 (Tex.Civ.App.-San Antonio 1968, writ ref’d n.r.e.) and Phillips v. Whiteside, 426 S.W.2d 350 (Tex.Civ.App.-Houston [14th Dist.] 1968, no writ). Both of these cases involved enforcement of an optional acceleration clause in a promissory note secured by a deed of trust. In both cases the courts found that notice of acceleration had been expressly waived. In the Whalen case the note stated that

in the event of default in the payment of any installment of principal or interest when due, the holder of this Note may declare the entirety of the Note evidenced hereby, immediately due and payable without notice, and failure to exercise said option shall not constitute a waiver on part of the holder of the right to exercise the same at any other time.
******
Each maker, surety and endorser waives demand, grace, notice, present- meat for payment and protest, and agrees and consents that this Note and the Liens securing its payment may be renewed, and the time of payment extended without notice, and without releasing any of the parties. [Emphasis added.]

In the Phillips case the note provided that the holder shall have the option “without demand or notice to the maker” to declare the note “immediately due and payable and may thereupon foreclose the liens given to secure its payment.” The deed of trust provided that any deed executed by the trustee

shall be full evidence and prima facie proof of each and all matters therein recited, and no other proof shall be requisite thereof, including maturity of the indebtedness, the request that trustee sell the mortgaged property.

In both of these cases cited by appellee there was a clear and unambiguous waiver of notice of acceleration. However, in the present case there is no clear language indicating a waiver of notice. The clause: “shall have the option to declare all of the indebtedness immediately due and payable and without demand upon, or notice to, the Grantors, to foreclose the lien of the Deed of Trust . . . .” can only be interpreted to mean that demand of payment and notice of intent to foreclose is waived for purposes of executing a trustee sale, not for the purpose of accelerating the note. [Emphasis added.] There is a distinct difference between this language and that used in the Whalen and Phillips cases. In this regard, our courts have recognized the distinction between notice of intent to accelerate and notice of sale. Lockwood v. Lisby, 476 S.W.2d 871, 873 (Tex.Civ.App.-Fort Worth 1972, writ ref’d n.r.e.).

The provision in the note waiving “grace, protest, notice, demand, diligence, presentation and time of commencement of suit . . . .” is similar to that in the Whalen case, and as distinguished by that court, dealt with waiver of formal presentment and demand, not notice of intent to accelerate. See Whalen v. Etheridge, 428 S.W.2d at 827. Consequently, this waiver clause in the note cannot be construed as a waiver of intent to accelerate but only a waiver of presentment and demand which Nora Follett expressly made in the second letter.

The summary judgment evidence having failed to conclusively show as a matter of law that notice of intention to accelerate and mature the entire indebtedness was given as required by law and the terms of the documents, the judgment must be reversed and remanded.

Reversed and remanded.