text:
    Gary HARRINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 52626.
    Court of Criminal Appeals of Texas.
    March 9, 1977.

      Percy Foreman & Richard M. DeGuerin, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Andy Tobias, 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 offense of murder; Article 1256, V.A. P.C. (1925); the punishment is imprisonment for life.

Appellant and his wife were jointly indicted for the murder of their two year old daughter. Appellant’s motion for severance was granted and his wife was tried first. Appellant contends that the evidence is insufficient to support the conviction; that the court erred in charging the jury on the law of principals; and that the court erred in admitting photographs of the deceased.

The record reflects that the deceased was the two year old daughter of appellant. Of particular importance is the testimony of Assistant Medical Examiner Dr. Giles Green who performed the autopsy on the deceased. Dr. Green described the child as thin, very emaciated, the ribs were very prominent, and the spaces between the ribs were sunken in. There were bruises and abrasions on many parts of the child’s body and deep cuts on the child’s fingers made with a sharp instrument. The right lung had multiple areas of hemorrhage. The child was 27 inches long and weighed 12¾ pounds. Dr. Green testified that a normal two year old child should be from 30 to 32 inches long. The autopsy revealed that the child died of starvation. Dr. Green stated that since malnutrition will stop a child’s growth, his opinion was that the state of malnutrition existed from several months to as much as six months or a year. The child was not suffering from any disease other than the extreme degree of malnutrition which caused her death.

Gail Reise, a neighbor, was a frequent visitor at appellant’s apartment and sold Avon products to Mrs. Harrington. She was never allowed in the apartment unless she called first. If she happened to stop by the apartment unannounced no one would answer; but if she went back to her own apartment and called, Mrs. Harrington would meet her at the door. Mrs. Reise only saw the child once when the baby was six months old. On all the other visits she never saw or heard the baby, and the door to the baby’s room was always closed. Mrs. Reise, who had raised two healthy children of her own, testified that she saw appellant’s baby daughter when she was six months old; Mrs. Reise was of the opinion that the child was not receiving a proper diet. She said the baby did not smile, sit up, make any sounds, or even respond to being held or cuddled. Mrs. Reise never saw a picture of the child in the apartment although she had been shown “snapshot” pictures of appellant and all their pets. During the Christmas season the appellant and his wife hung Christmas stockings for themselves, their dog, cat, bird, and rabbit, but they had no stocking or presents for their baby girl.

Another neighbor, Roylene Babin, who was also an Avon representative, visited appellant’s apartment about once every two weeks for about six months, yet never saw or heard the baby, and the door to the baby’s room was always closed.

The child died about 10:00 p.m. on July 26, 1973. The police were not called until 4:00 a.m. on July 27th. The police officer who answered the call said the whole apartment had a strong odor of animal and human excrement. Inside the baby’s room were two large cages and one contained a “fat” black rabbit. Animal excrement was laying about the floor, and what appeared to be human excrement was smeared on the wall behind the crib. The officer stated that all of appellant’s pet animals appeared to be healthy and well fed.

Appellant contends that the circumstantial evidence is insufficient to show that a willful act or omission on his part caused the child’s death. He says that the evidence does not show that he, acting alone or in concert with his wife, failed to do any act causing the death of his daughter.

It is the duty of each parent to support his or her minor children. Family Code, Sec. 4.02 (formerly Article 4614, V.A. C.S.); Article 602, V.A.P.C. (1925). See also, Family Code, Sec. 12.04 and Ronk v. State, 544 S.W.2d 123 (Tex.Cr.App.1976). The fact that a father might entrust the care of his child to his wife or some other person does not relieve him of his responsibility to see that his child is properly cared for unless it is shown that some other person had sole and exclusive care, custody, and control of the minor child. Cf. Eaglen v. State, 249 Ind. 144, 231 N.E.2d 147 (1967). The omission or neglect to perform a duty resulting in death, such as of a mother failing to feed her child, may constitute murder where the omission was willful and there was a deliberate intent to cause death. Martinez v. State, 498 S.W.2d 938 (Tex.Cr.App.1973); 40 Am.Jur.2d, Homicide, Sec. 89 (1968); Annot. 61 A.L.R.3d 1207 (1975).

The record reflects that appellant was the father of the deceased child. The child resided' with appellant and his wife at their apartment. Appellant introduced some business records from a hospital in Pasadena which showed that he was in the hospital for surgery from June 18th to June 30, 1973. However, those same records and the testimony of the physician who performed the surgery show that appellant was not confined to his bed upon release from the hospital. The child died on July 26, 1973. Moreover, Dr. Green testified that the state of malnutrition extended over a prolonged period of time.

The court charged the jury on the law of murder with malice, criminally negligent homicide, circumstantial evidence, the duty of a parent to support his minor children, and the law of principals. In Floyd v. State, 494 S.W.2d 828 (Tex.Cr.App.1973) this Court stated:

“. . . when a jury, advised of the restrictions which the law places on circumstantial evidence, reaches the conclusion upon evidence properly before them that the accused is guilty, it is not for the reviewing court to supplant their findings by its own unless it is able to point to weaknesses, omissions, or inconsistencies in the evidence which destroy its cogency.”

We hold that the evidence is sufficient to show that the appellant caused his daughter’s death by his failure to perform his parental duty of support. The evidence is also sufficient for the jury to find that the appellant’s failure to perform this duty was willful, intentional, and with malice aforethought. The case of Suff v. State, 531 S.W.2d 814 (Tex.Cr.App.1976), upon which appellant relies, is distinguishable from the facts of this case. In Suff the two month old baby died as a result of a sharp blow to the abdomen with a blunt instrument. This Court affirmed the father’s, conviction, but reversed the mother’s conviction because there was not even “a scintilla of evidence” to show that the mother struck the death blow. In the case at bar the child’s death resulted from a continuing course of conduct extending over a prolonged period of time.

Appellant contends that there is no evidence to show that the deceased was Laini Deanne Harrington, since Dr. Green testified that he performed an autopsy on Laini Harrington.. This argument is wholly without merit. A failure or mistake in proving the middle name of the victim alleged in the indictment may be disregarded and treated as immaterial. The failure to prove or refer to the middle name did not, under these facts, constitute a variance or raise a question of identity. Article 21.07, V.A.C.C.P.; Martin v. State, 541 S.W.2d 605 (Tex.Cr.App.1976); Stephens v. State, 433 S.W.2d 428 (Tex.Cr.App.1968); Davis v. State, 463 S.W.2d 434 (Tex.Cr.App.1971).

Appellant also claims there was no evidence that he imprisoned his daughter from about November 1, 1972, until her death as was alleged in the indictment. If it was necessary to prove this allegation, which appears to be mere surplusage, the allegation is supported by circumstantial evidence. Roylene Babin testified that she visited appellant’s apartment on many occasions selling Avon products. She never saw appellant’s daughter during any visit. The door to the baby’s room was always closed. Another neighbor, Gail Reise, during much of this same time period, only saw the baby once. On all other visits she did not see the baby and the baby’s door was always closed. On the apartment door there were two locks in excess of the locks provided by the apartment owners. The appellant had no pictures of his daughter in the apartment and never informed the apartment manager that he had a daughter living with him. Visitors were not accepted at appellant’s apartment unless they called beforehand. We find that the evidence is sufficient for the jury to infer the appellant imprisoned his daughter during the time period alleged in the indictment.

Appellant contends that the court ■ erred in charging the jury on the law of principals because there was no evidence that he acted in concert with any other person. Appellant’s daughter died as a result of starvation occurring over a prolonged period of time. The deceased child resided with appellant and his wife and was under their joint care, custody and control. Even if appellant’s wife normally took care of the child, it would strain logic to say that he never saw his infant daughter in their two bedroom apartment. Appellant and his wife were seen leaving their apartment with the child; therefore, it is obvious that appellant saw his child and should have observed her starved condition.

To determine whether an accused was acting as a principal, the trial court may look to events before, during and after the commission of the offense. Bush v. State, 506 S.W.2d 603 (Tex.Cr.App.1974). While mere presence during the commission of an offense will not make a person a principal, it is a circumstance tending to prove that a person is a principal. Coronado v. State, 508 S.W.2d 373 (Tex.Cr.App.1974). “An agreement of partners to act together in a common design can seldom be proven by words, but reliance can often be had on the actions of the parties showing an understanding and common design to do a certain act.” Everett v. State, 153 Tex.Cr.R. 79, 216 S.W.2d 281 (1949). The facts raised the issue of principals and the court correctly charged the jury; no error is presented.

Appellant contends that the court erred in overruling his objection to the admission in evidence of color photographs which he says are gruesome, do not accurately portray the body of the dead child, had no probative value, and were offered solely to prejudice the jury. The main point of appellant’s argument is that the photographs are inaccurate in color so as to accentuate the child’s injuries.

Officer Irwin testified that the photographs were true and accurate representations. There is no question from the record that the photographs depict the dead child and the child’s bedroom as they appeared on July 27th. Officer Irwin admitted that some of the photographs were not precise in some respects as to color. Appellant introduced the testimony of two witnesses who were experts in color photography. Both experts agreed that several of the photographs were of poor quality in reproducing color. However, the expert witnesses disagreed as to whether the poor quality of the color accentuated the child’s injuries. One expert witness stated that in his opinion the photographs did not accentuate the injuries, while the other expert witness was of the opinion that it did accentuate the injuries.

If a photograph is competent, material and relevant to the issues on trial, the photograph will not be inadmissible because it is gruesome, unless it is offered solely to inflame the minds of the jury. If a verbal description of the body and the scene would be admissible, a photograph depicting the same is admissible. Only when the probative value of the photograph is very slight and the inflammatory aspects great will it be an abuse of discretion to admit the photographs. Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972); Page v. State, 532 S.W.2d 341 (Tex.Cr.App.1976); Provost v. State, 514 S.W.2d 269 (Tex.Cr.App.1974).

The photographs appellant objects to are relevant to the issue on trial. Since the child died as a result of a prolonged period of starvation, the child’s physical state and appearance were relevant to the jury’s determination of whether the appellant failed to provide his daughter with sufficient food and nourishment. The photographs of the child’s physical appearance were also relevant and competent evidence for the jury to consider in determining intent and malice. Lanham v. State, 474 S.W.2d 197 (Tex.Cr.App.1971); Brumbelow v. State, 364 S.W.2d 232 (Tex.Cr.App.1963).

We agree that the photographs are gruesome; however, we do not agree that the gruesome nature of the photographs outweighs their probative value. Even to the untrained eye, the photographs show that the appellant’s daughter was obviously suffering from an extreme degree of malnutrition. They were highly probative of whether the appellant knew that his daughter was malnourished. Therefore, we hold that the inflammatory aspects of the photographs are not such as to outweigh their probative value to the jury. Brown v. State, 508 S.W.2d 91 (Tex.Cr.App.1974); Kalinec v. State, 500 S.W.2d 146 (Tex.Cr.App.1973); Part v. State, 433 S.W.2d 702 (Tex.Cr.App.1968).

The admissibility of photographs must rest largely in the discretion of the trial judge. Phillips v. State, 511 S.W.2d 22 (Tex.Cr.App.1974); Rich v. State, 510 S.W.2d 596 (Tex.Cr.App.1974). Where photographs truly and accurately depict what they purport to depict, a variation or defect in the color reproduction does not necessarily render photographs inadmissible; these variations may be considered by the jury and bear only on the weight of the evidence—not the admissibility. Cf. Greer v. State, 523 S.W.2d 687 (Tex.Cr.App.1975); Lanham v. State, 474 S.W.2d 197 (Tex.Cr.App.1971). Only if the variation in color is of such a degree that the photograph is no longer a true representation of what the photograph purports to depict will it be an abuse of discretion to admit the photographs in evidence.

The photographs appellant complains of are in the record. We have reviewed these exhibits as well as the testimony concerning their admissibility. While many of the photographs depict the same objects in varying colors and shades, we do not find that the variations are of such a degree as to render it an abuse of discretion to admit them in evidence.

The judgment is affirmed.

Opinion approved by the Court.

      . See Danelle Harrington v. State, Tex.Cr.App., 547 S.W.2d 616 (decided this day.)


source: Caselaw Access Project

author: DOUGLAS, Judge.

license: Public Domain

text:
    Jesse H. IVY, Appellant, v. The STATE of Texas, Appellee.
    Nos. 53198, 53199.
    Court of Criminal Appeals of Texas.
    March 9, 1977.

      Charles E. Campion, San Antonio, for appellant.
    Ted Butler, Dist. Atty., Gordon V. Armstrong, Sharon S. MacRae and Susan D. Reed, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

These are appeals from convictions for the offense of forgery. Trial was before the court upon pleas of guilty. Punishment was assessed at ten years in each case.

Appellant’s sole contention is that the indictments are fundamentally defective because they fail to allege that he “. passed the checks knowing that they were forged. . . . ” He relies on this Court’s original opinion in Jones v. State, 545 S.W.2d 771 (1975).

On rehearing in that case we held that an indictment or information which failed to allege knowledge as an essential element of the offense was not fundamentally defective and that, while such omission was a matter which could be raised by a motion to quash, it cannot be raised for the first time after trial has commenced. No motion to quash was filed.

No reversible error having been shown, the judgments are affirmed.

ONION, P. J., and ODOM, J., dissent for the reason stated in the dissenting opinion in Jones v. State, 545 S.W.2d 771 (Tex.Cr.App., 1975).


author: DAVIS, Commissioner. DOUGLAS, Judge,

text:
    Joey Glenn BAKER, Appellant, v. The STATE of Texas, Appellee.
    No. 53458.
    Court of Criminal Appeals of Texas.
    March 9, 1977.

      Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from an order revoking probation.

Appellant entered a plea of guilty before the court on March 25, 1975, to the offense of conspiracy to sell marihuana. Punishment was assessed at thirty days, probated for one year, and a fine of $100.00.

The record reflects that after a hearing on the State’s motion to revoke appellant’s probation on November 6, 1975, the court entered an order revoking appellant’s probation finding that appellant had violated the terms of his probation by committing the offense of possession of marihuana on April 10, 1975.

The record is before us without a transcription of the court reporter’s notes. No brief was filed in appellant’s behalf as is required by Art. 40.09, V.A.C.C.P., Sec. 9. An examination of the record, however, reveals fundamental error which we must review in the interest of justice under Art. 40.09, V.A.C.C.P., Sec. 13.

At the outset, we are confronted with the problem of whether the primary conviction was void. The complaint and information of the primary offense purport to charge appellant with conspiring to sell marihuana. The information, omitting the formal parts, alleges that appellant, on or about July 27, 1974,

“did then and there unlawfully with intent that the offense of knowingly or intentionally delivering a controlled substance, to-wit: marijuana, more than one-fourth ounce agree with Thomas Langley to sell and deliver marijuana to J. F. Kilty and, in the pursuance of such agreement, Joey Glenn Baker and Thomas Langley did direct J. F. Kilty to the marijuana in order that it be inspected and Joey Glenn Baker did discuss with J. F. Kilty the price of the marijuana per pound purchases. . . .”

Article 4476 — 15, V.A.C.S., Sec. 4.05, “The Controlled Substances Act,” states in pertinent part:

“(d) Except as otherwise provided by this Act, a person commits an offense if he knowingly or intentionally delivers marihuana.
(e) Except as provided in Subsection (f) of this Section, an offense under Subsection (d) of this section is a felony of the third degree.
(f) An offense under Subsection (d) is a Class B misdemeanor if the actor delivers one-fourth ounce or less without receiving remuneration.”

Section 4.05, supra, does not classify conspiracy to sell marihuana as an offense, and the Controlled Substances Act contains no general conspiracy provisions. We note that it is an offense to offer to sell marihuana under Art. 4476-15, V.A.C.S., Secs. 1.02(8) and 4.05(d), but appellant has not been charged with such an offense here.

V.T.C.A. Penal Code, Sec. 15.02(a), reads as follows:

“(a) A person commits criminal conspiracy if, with intent that a felony be committed:
(1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and
(2) he or one or more of them performs an overt act in pursuance of the agreement.”

The question before us is whether the criminal conspiracy provisions of the new Texas Penal Code apply to the Controlled Substances Act. We hold they do not.

In Moore v. State, 545 S.W.2d 140 (Tex.Cr.App., 1976), a similar question was answered regarding the applicability of the new Penal Code’s general criminal attempt provision to the Controlled Substances Act. In Moore, we held:

“The State argues that the Legislature intended for the criminal attempt provision of the new Penal Code, effective January 1, 1974, to apply to the Controlled Substances Act. We do not agree. V.T.C.A. Penal Code, Sec. 15.01(a), reads as follows:
‘A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.’
“However, V.T.C.A. Penal Code, Sec. 1.03(b), states that:
‘The provisions of Titles 1, 2 and 3 of this Code apply to offenses defined by other laws, unless the statute defining the offense provides otherwise; however, the punishment affixed to an offense defined outside this code shall be applicable unless the punishment is classified in accordance with this code.’ (Emphasis supplied.)
“The general attempt provisions of Sec. 15.01, supra, are contained in Title 4 of the Penal Code, and thus Section 1.03(b), supra, does not apply to Section 15.01, supra.”

Since the criminal conspiracy provisions of V.T.C.A. Penal Code, Sec. 15.02 are also contained in Title 4 of the new Penal Code, the general provisions of V.T.C.A. Penal Code, Sec. 1.03(b), quoted in Moore v. State, supra, do not apply to Sec. 15.02, supra.

Consequently, we hold that the criminal conspiracy provisions set forth in Sec. 15.02, supra, do not apply to the Controlled Substances Act. The complaint and information in the instant case do not allege an offense against the laws of this State and the primary conviction based thereon is void. Moore v. State, supra, and cases therein cited.

The judgment is reversed, the cause remanded, and the prosecution ordered dismissed.

Opinion approved by the Court.

DOUGLAS, Judge,

dissenting.

For the reasons stated in the dissenting opinion in Moore v. State, 545 S.W.2d 140 (Tex.Cr.App., 1976), the judgment should be affirmed.


author: DOUGLAS, Judge. ROBERTS, Judge,

text:
    Bobby Ray WOODBERRY, Appellant, v. The STATE of Texas, Appellee.
    No. 53645.
    Court of Criminal Appeals of Texas.
    March 9, 1977.

      Phil L. Adams, Dallas, on appeal only, for appellant.
    Henry Wade, Dist. Atty., Sue Lagarde and Paul Maculuso, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of aggravated robbery, on a plea of guilty to a jury which assessed punishment at five years.

The sole complaint is that the court erred in not withdrawing the plea of guilty on its own motion after appellant took the stand and testified equivocally about his actions during the robbery, substantially claiming that he made no overt effort to rob the complaining witness.

Charles Chandler testified that on September 20, 1975, appellant and a young woman came walking into his service station located in the Pleasant Grove area of Dallas. After appellant purchased a dollar’s worth of gas, he and his companion lingered around the station. After asking for change for a dollar, appellant reached into his back pocket, pulled out a small caliber pistol and said, “Give me your damn money.” Chandler said, “Hell no!”, and then broke and ran from the station, yelling, “Help, police, robbery.” Appellant yelled, “Stop or I’ll shoot”, but no shots were fired, as the two robbers then fled the scene without obtaining any money.

Appellant was arrested in the closet of a vacant house several blocks away from the robbery scene. The officers found a small caliber pistol there.

Prior to entering his plea of guilty to the jury, the trial court properly admonished appellant of the consequences of his plea as required by Article 26.13, V.A.C.C.P. After the State had rested its case, appellant testified that his girlfriend, Jean, suggested that he help her rob a filling station and that she gave appellant a pistol to accomplish the robbery. Appellant admitted that when he walked up and pulled out a pistol Chandler yelled something and ran away. Appellant denied saying anything to or pointing the pistol at Chandler.

On cross-examination, appellant related that he had difficulty making up his mind as to whether or not he was going to commit the robbery and that his girlfriend, Jean, had to ask him three separate times to do it. He acknowledged receiving the gun from the girlfriend, admitted displaying the pistol to the complaining witness, but stated that the display of the pistol was only a “reflex action”, and that he didn’t even know it was loaded. Even though he admitted knowing that his actions were wrong and that he might get in trouble, he testified that he “made no effort of trying to rob the man.”

On appeal, appellant argues that his denial of the demand for money and lack of threats, as well as his denial that he pointed a pistol at Chandler, and testimony that he made “no effort” of trying to rob him were sufficient to require the trial court to withdraw the plea of guilty on its own motion. No effort was made by defense counsel at any time during the trial to withdraw the plea and no objection was made to the court’s charge to the jury instructing that a finding of guilty be rendered.

The holding in Gates v. State, 543 S.W.2d 360 (Tex.Cr.App.1976), is controlling. Both Gates and the instant case involved pleas of guilty to juries on the charges of aggravated robbery. In both cases the defendants admitted confronting the complaining witnesses with the intent to commit robbery, brandishing pistols, but denied that the robbery was completed as no property or money was obtained from the victims due to extenuating circumstances. In neither case did the defendant request to withdraw the plea or make an objection to the court’s charge instructing the jury to enter a verdict of guilty.

This Court reversed the conviction in Gates holding that, from a review of the totality of circumstances, the appellant was not voluntarily pleading guilty to the offense charged in the indictment. The appellant stated that he “made no effort of trying to rob the man” and further equivocated about his intent and his actions during the alleged robbery. It appearing that the admissions made by the defendant in Gates are even stronger than those admissions made in the case at bar, it follows that the same result must occur even though in both cases the testimony of the defendant showed that he was guilty of the offense of aggravated robbery under V.T.C.A., Penal Code, Sections 29.01(1) and 29.03(a)(2).

Even though appellant’s testimony shows him to be guilty of the offense of aggravated robbery, the equivocal nature of his testimony still requires a reversal under the authority of Gates v. State, supra.

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

ROBERTS, Judge,

concurring.

The question is not whether the appellant’s testimony shows him to be guilty of the offense, but whether his testimony allows the case to be submitted to the jury on a plea of guilty.

If the appellant’s testimony raises a fact .issue as to whether he was guilty of the offense charged, then it doesn’t mean he is not guilty, it just means that the case should not proceed to a final judgment under a plea of guilty. Gates, supra; Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460 (1942).

Irrespective of whether the appellant’s testimony shows him to be guilty of the offense charged, the case should not have proceeded to a final judgment under a plea of guilty because of the fact issue created by appellant’s testimony that he “made no effort of trying to rob the man.”

I concur in the result.

ONION, P. J., joins in this opinion.

      . As the State’s brief correctly points out, appellant and his companion went to the robbery scene armed, with the intent to commit theft, brandishing weapons, which forced the complaining witness to flee the scene, screaming for the police. Such testimony is sufficient to support a conviction for aggravated robbery. See Reese v. State, 531 S.W.2d 638 (Tex.Cr.App.1976); Lightner v. State, 535 S.W.2d 176 (Tex.Cr.App.1976); Johnson v. State, 541 S.W.2d 185 (Tex.Cr.App.1976); Watts v. State, 516 S.W.2d 414 (Tex.Cr.App.1974).
      The fact that no money or property was ever obtained from the complaining witness is not material in a prosecution for aggravated robbery under the new Penal Code. See Davis v. State, 532 S.W.2d 626 (Tex.Cr.App.1976).

      . The writer did not agree with the decision in Gates but is bound by it.


author: ONION, Presiding Judge. DOUGLAS, Judge,

text:
    Ex parte Rickey Van Buren BARNES.
    No. 53933.
    Court of Criminal Appeals of Texas.
    March 9, 1977.

      Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is a post-conviction habeas corpus proceeding brought under the provisions of Art. 11.07, Vernon’s Ann.C.C.P., in which petitioner sought to set aside his felony conviction in Cause No. 6967 in the 213th Judicial District Court of Tarrant County. The convicting court has recommended that relief be granted and we agree.

On October 4, 1976, the petitioner was convicted under an indictment charging him with the offense of attempting to obtain a controlled substance by fraud. The conviction resulted from a guilty plea, and punishment was assessed at imprisonment for three (3) years; however, imposition of sentence was suspended and probation was granted.

The disposition of this case is governed by Moore v. State, 545 S.W.2d 140 (Tex.Cr.App., decided October 13, 1976, State’s Motion for Rehearing overruled on January 26, 1977). There we held that the criminal attempt provisions set forth in V.T.C.A., Penal Code, Sec. 15.01, do not apply to the Controlled Substances Act (Art. 4476-15, Vernon’s Ann.Civ.Stat.). The indictment in the instant case attempts to allege an offense in almost the identical language as that found in Moore v. State, supra. As such, the instant indictment does not allege an offense and the conviction based thereon is void.

The relief requested by habeas corpus application is granted, the conviction is set aside and the indictment ordered dismissed.

It is so ordered.

DISSENTING OPINION

DOUGLAS, Judge,

dissenting.

For the reasons stated in the dissenting opinion of Moore v. State, 545 S.W.2d 140 (Tex.Cr.App., 1976), the judgment should be affirmed.

PHILLIPS, J., joins in this dissent.


author: ODOM, Judge.

text:
    Ex parte Pauline ROBERTS.
    No. 53995.
    Court of Criminal Appeals of Texas.
    March 9, 1977.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from an order of the Judge of the 53rd District Court of Travis County refusing to discharge appellant after a hearing on her application for writ of habeas corpus.

Appellant was placed in custody because on August 24, 1976, a motion to revoke her probation was filed alleging that she had violated a term thereof, to-wit: she had committed theft, an offense against the laws of this State. She claims that her probationary period has expired and, since she is no longer on probation, she cannot be incarcerated for the violation.

The record reflects that on July 6, 1972, appellant was convicted of theft, punishment was assessed at ten years’ confinement, and she was placed on probation for ten years. On September 12,1974, the trial court revoked her probation and reduced the original ten year penalty to two years. The revocation, however, was reversed in Roberts v. State, Tex.Cr.App., 537 S.W.2d 461.

Appellant now contends that her probationary term expired on July 6, 1974, because the trial court reduced punishment to two years’ imprisonment when her probation was revoked in 1974. She argues that her probationary term was reduced from ten years to two years when the revocation and sentencing occurred, therefore, the State’s pending motion to revoke probation is invalid since the probationary term expired on July 6, 1974, two years after the original judgment.

The record shows that a ten year probationary term was granted by the trial court and was never reduced to a two year period. Furthermore, we reversed the trial court’s decision which imposed this new punishment. Roberts v. State, supra.

Appellant’s ten year probationary term is still in effect. The challenge is without merit.

The relief is denied.


text:
    Kevin KASPER, Appellant, v. The STATE of Texas, Appellee.
    No. 54044.
    Court of Criminal Appeals of Texas.
    March 9, 1977.
    Michael R. Gibson, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and Thomas C. Roepke, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from an order revoking probation. Appellant was convicted of burglary under the former Penal Code. Punishment was assessed at imprisonment for four years, but upon revocation the court reduced punishment to three years.

Appellant raises four contentions challenging the revocation, but we find fundamental error invalidating the original judgment of conviction.

The indictment charged burglary of a private residence at night, a violation of Article 1391, Vernon’s Ann.P.C. (1925). The minimum punishment for that offense is imprisonment for five years. Article 1391, supra. Appellant waived trial by jury and entered a plea of guilty before the court to ordinary burglary. See Article 1389, Vernon’s Ann.P.C. (1925), as amended. The judgment and sentence recite conviction for burglary and show punishment within the range affixed to that offense.

“A conviction for burglary cannot be supported by an indictment charging burglary of a private residence at night.” Bowie v. State, Tex.Cr.App., 401 S.W.2d 829, 831; Robinson v. State, 82 Tex.Cr.R. 570, 200 S.W. 162, 166 (1918).

Because the indictment is insufficient to support the conviction, the judgment is reversed and the cause remanded.

      . Trial was before the effective date of the new Code and punishment herein was necessarily assessed under the former Code.


author: ROBERTS, Judge.

text:
    D. N. FLETCHER, Appellant, v. The STATE of Texas, Appellee.
    No. 53851.
    Court of Criminal Appeals of Texas.
    March 9, 1977.
    Murray L. Lieberman, Houston, for appellant.
    Lynn Ingalsbe, Crim. Dist. Atty., and Jorge Solis, Asst. Dist. Atty., Abilene, 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 an order revoking probation.

On August 20, 1971, the appellant was convicted of check swindling. Punishment was assessed at two years’ confinement in the Texas Department of Corrections, probated. The order of probation contained, among others, the following terms and conditions:

“h. Pay his fine, if one be assessed, and all court costs whether a fine be assessed or not, in one or several sums, and make restitution or reparation in. any sum the Court shall determine. Pay Court Costs of $17.
sjc * * * ⅜ *
“j. Pay $10 each month to the Adult Probation Officer for Probation Fee.”

The record reflects that a copy of this order was timely delivered to appellant and explained to him by his probation officer.

On August 17, 1973, the State filed a motion to revoke appellant’s probation, alleging, inter alia, as grounds therefor, the following:

“(2) said probationer, D. N. Fletcher, failed to pay $10.00 each month to the Adult Probation Officer for Probation fee;
“(3) said probationer, D. N. Fletcher, failed to pay Court Costs of $17.00 as directed.”

On June 16, 1976, a hearing was had on the State’s motion to revoke. At the conclusion of this hearing, the court entered an order revoking the appellant’s probation because it found that appellant had “. failed to pay $10.00 each month to the Probation Officer as probation fees as directed by the Court’s order, and that the Probationer failed to pay the Court costs of $17.00 as directed by the Court’s order, all of which is easily understood and was understood by the Probationer, and the Court further finds that all of the allegations were committed subsequent to the date of being placed on probation, and the Court is of the opinion that the probation should be revoked and the original judgment become operative.”

Appellant contends, inter alia, that the trial court abused its discretion in revoking the appellant’s probation in that the State failed to show that the appellant’s failure to timely pay a $10 monthly probation fee and $17 court costs was willful and intentional, and that the appellant had the ability to make the payments when due. We agree and reverse.

At the hearing on the motion, the only testimony relative to the court’s finding of probation violations came from Bill McCay, the appellant’s probation officer. He testified as follows:

“Q Okay. After that transpired did Mr. Fletcher thereafter pay his probation fees; that is, $10.00 each month after he was placed on probation for the two years?
“A No, he did not.
“Q Did you ever receive any money from him?
“A Yes.
“Q When?
“A March 8th of 1976 we received a Western Union Money Order from Mr. Fletcher in the amount of — a total amount of $240.00 probation fees and $17.00 for Court costs.
“Q All right.
“A And we gave him a — returned to him a balance of $13.00 overpayment that he made.
“Q Now, his probationary period would have expired on August 20th of 1973; is that correct?
“A Yes.
“Q Prior to August 20th of 1973, did you ever receive any monthly payments?
“A None.
“Q Did you ever receive the payment of $17.00 Court costs?
“A No.
* * * * * *
“Q Now, when was the next time after August 20th of 1971, that you heard from Mr. Fletcher?
“A About the 1st of February of 1976, we received information that he was living in a small community, a suburb of Salt Lake City, Utah.
******
“Q Bill, sometime the first part of February (1976) you got a lead?
“A Yes.
******
“Q After you got a lead, what did you do?
“A We contacted the Sheriff’s Department in Salt Lake City, Utah, and advised them that we had a warrant for Mr. Fletcher, and requested that they attempt to arrest him on a teletype warrant from us, and we did forward a warrant to them, along with Certified Copies of the Judgment, Indictment, all of the Court records on him.
“Q And then extradition proceedings were begun?
“A We were notified later to start extradition proceedings, that he was in custody.
“Q All right. Then, did you actually have any contact — direct contact yourself with Mr. Fletcher?
“A Yes, I did.
“Q Okay. About when was that?
“A In February, I don’t remember the date, I don’t have it wrote down [sic], but he called me wanting to know what he could do to take care of this. I advised him that he would have to appear in Court here, and he—
“Q Let me stop you right there. Was this before or after you had caused a warrant to be sent to Utah?
“A After.
“Q Could you tell was this a person to person or long distance phone call, or whatever?
“A It was a long distance call.
“Q Okay. Well, could you just continue with the substance of what he did tell you in this conversation and what the conversation was about?
“A Okay. He wanted to know what it would take to get him out of this, and I advised him that he would have to appear in Court. Then, he wanted to know how much money he owed and I gave him those figures, and, oh, probably a week or a week and a half we did receive the money from him.
“Q Did he give any explanation to you of what he had been doing for four years, or why, or—
“A No, he did not. I didn’t ask him. He stated that he was in business there now and had a good position and if he come [sic] back down that it would ruin his life. (Emphasis added)
“Q So, he was pursuing some sort of occupation?
“A Yes.
“Q And then that money was sent?
“A Yes.
“Q Was that the first contact you’d had from him since August 20th of 1971?
“A Yes, it was.”

On cross-examination, Mr. McCay further testified as follows:

“Q I think you further told the Court a few moments ago that the only information you had, or the information you gathered, was from contacts, not going into the instance of the conversation, but it’s from February of ’76?
“A Yes, that’s true.
“Q Okay. You're not relating to the Court that any of that information pertained to the period between August 20th of 1971 and August 20th of ’73? “A We had no contact with him—
“Q Okay.
“A —or anyone else during that time. “Q So, you can’t tell this Court then where Mr. Fletcher was between August of ’71 and August of ’73?
“A No, I do not know.”

In our recent decision of Herrington v. State, 534 S.W.2d 331 (Tex.Cr.App.1976), we quoted from our earlier opinion in Hardison v. State, 450 S.W.2d 638 (Tex.Cr.App.1970), and stated that:

“Where probationary conditions relate to the payment of restitution and court costs there must be a showing at the revocation hearing of the probationer’s ability to make the payments required and that the failure to make the restitution was intentional (citation), and the failure to pay court costs was willful. (Citations). We know of no reason why these requirements should not likewise apply to the payment of the supervisory or service fee authorized by Section 6a of Article 42.12, Vernon’s Ann.C.C.P., as amended 1967.” Id., at 333.

We held in Herrington that:

“In the absence of a showing of appellant’s ability to make the payments required, and that his failure was intentional, the court abused its discretion in revoking probation based on failure to make the required payments.” Id., at 334.

In the case at bar, as in Herrington and Hardison, there was no showing that appellant had the ability to make the payments required and that the failure to make such payments was intentional.

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

      . This is the designation given the offense in the judgment, sentence, and other papers. The indictment fully charges an offense under Art. 567b, V.A.P.C. (1925), titled “Giving check, draft or order without sufficient funds.” Cf. Art. 1545, V.A.P.C. (1925).


author: YOUNG, Justice.

text:
    Idris TRAYLOR, Individually and d/b/a Idris Traylor Cotton Company, Appellant, v. Oscar B. GRAY et al., Appellees.
    No. 1076.
    Court of Civil Appeals of Texas, Corpus Christi.
    Jan. 6, 1977.
    Rehearing Denied Feb. 17, 1977.

      Jack Skaggs, Stiernberg, Skaggs & Koppel, Harlingen, for appellant.
    Gordon L. Briscoe, McCullough, Murray & McCullough, Bonner & Bonner, Merrill W. Russell, Greenwood & Russell, Harlin-gen, for appellees.
   OPINION

YOUNG, Justice.

The Grays, a farming partnership, sued defendants Traylor and Palmetal for losses sustained upon their discovery that an advance contract to sell their 1974 cotton crop had not been accepted by the purchaser (Traylor) as represented to them by Dan Davis, manager of Palmetal Gin Company. Plaintiffs-appellees (Grays) consist of Oscar B. (Buster) Gray, Sterling S. Gray, and Jimmy A. Gray, individually and d/b/a Oscar B. Gray & Sons. Defendant-appellant Traylor is Idris Traylor, individually and d/b/a Idris Traylor Cotton Company. Defendant-appellee Palmetal includes Major Davis, Dan A. Davis, G. Wayne Davis, and Jean E. Kirkland, Jr., individually and d/b/a Palmetal Gin Company. From a jury verdict for the Grays, Traylor has appealed. Palmetal has not appealed.

The factual setting of this case requires an understanding of the cotton marketing customs in the Rio Grande Valley, and of the long-term relationship between the Grays and Dan Davis, and also between Davis and Traylor. For example, for many years a cotton farmer in the Rio Grande Valley marketed his cotton by delivering the harvested crops to a gin for processing and then selling to buyers after exhibiting samples from the ginned bales. As one of several services to customers, ginners often displayed the processed samples for the farmers and dealt directly with the buyer or broker in effecting the sale. The buyer paid the ginner, who deducted the cost of ginning and any other costs, such as seed or fertilizer previously advanced by the ginner to the farmer, and paid the remaining proceeds to the farmer. Ginners performed these various services for farmers in order to retain the farmers as gin customers.

For 10 to 12 years the Grays ginned their cotton at Palmetal Gin. Dan Davis offered the processed cotton samples to buyers, made the sales to Traylor (the only buyer with whom he dealt), received the purchase price from Traylor, and disbursed the net proceeds to the Grays.

In 1972, a system of advance contracting was begun in which the future crop was purchased in the fall or early winter before it was planted. At harvest time the farmer received his advance contract price for the cotton regardless of the harvest time market price. Ginners performed similar services for farmers under the new system. Instead of effecting a sale by displaying samples of processed cotton, however, the ginners negotiated an offering price from the farmer and purchase price from the buyer.

The price quoted by the buyer was considered firm for only the day on which the agreement was made. This was due to the daily fluctuation in cotton futures and the practice of buyers reselling their contract rights to mills or other ultimate users on the same day the deal with the farmers was made. All these negotiations were often conducted by telephone. The ginner would then secure a form contract from the buyer (or use a form already in his possession), present it to the farmer for signature, and send it to the buyer for signature.

In 1972 and 1973, Dan Davis of Palmetal Gin Company completed the negotiations with Traylor, used a Traylor “Confirmation of Purchase” form from a supply kept at the Palmetal office, and took the form to the Grays for signature. After he and a member of the Gray partnership signed the form, Davis detached one of the carbon copies and left it with the Grays. By contrast other ginners would send all copies to the buyers and wait until a fully signed copy was returned by the buyer before giving a copy to the farmer.

Without questioning the whereabouts of the missing copy, Traylor duplicated an additional copy to replace the missing one, signed two copies to be returned to Palme-tal for the gin and the farmer, and kept the third completed copy for his own file. Instead of giving the Grays their fully signed copy, Davis kept both the gin’s copy and the Grays’ copy in the gin safe. The Grays never saw a confirmation form with Tray-lor’s signature, although Davis told them he kept the signed copy at the gin.

As it appeared to the Grays, therefore, the sale was complete upon oral agreement between Davis and Traylor, and the contract formalities to reflect this oral agreement were completed when the confirmation form was signed by themselves and Davis. In fact, the contract was complete when the oral agreement was made, but without a subsequent writing, the statute of frauds would prevent its enforcement. Tex.Bus.Com.Code 2.201. However, Tray-lor’s practice of reselling its contract rights to mills immediately after the oral agreement and before the writing was signed shows the reasonableness of the Grays’ belief that a firm commitment had been made orally.

Idris Traylor or Buster Atkins, a member of the Traylor firm, actually agreed to the purchase price for the 1972 and 1973 crops, signed the confirmation forms, and sent the signed forms to Davis. In 1974, however, Traylor never agreed to the price shown on the confirmation form, nor did it sign or even receive the confirmation form signed by the Grays and Davis. It is the 1974 advance contract which gave rise to this lawsuit.

In early January of 1974, the price of cotton had been rising and had reached 75$ per pound. Eva Gray, wife of Oscar B. Gray, testified she received a purchase offer of 76$ per pound from Ross Bigham of the Elrod Gin with whom the Grays had ginned prior to their use of Palmetal Gin. Mrs. Gray called Davis to see if he could meet that price. Davis testified that the request was for 75$ rather than 76$, that he received a firm acceptance from Traylor for 75$, and that he prepared a confirmation form accordingly. In the meantime, Big-ham suggested the Grays should offer their cotton for 78$ per pound. Upon learning the Grays now sought 78$, Davis disposed of the 75$ confirmation form, told the Grays he would call Lubbock, and then called the Traylor home office in Lubbock to inquire about a 78$ deal. Traylor agreed to work on it, but indicated there was little or no hope the higher price would be accepted. Davis said he was told the 75$ price was probably still good, but no commitment was made by Traylor.

In danger of losing the Grays’ ginning business which comprised a substantial proportion of Palmetal’s business, Davis devised a plan to retain their business by absorbing some of the price himself. He and his partner Jean Kirkland agreed to absorb up to 3$ per pound if necessary. Davis called Mrs. Gray and told her “We are going to take the cotton.” He also informed Mrs. Gray that 3$ of the 78$ price might have to be absorbed by Palmetal if cotton was bringing less than 78$ at harvest time. Following this conversation, Mrs. Gray called Bigham at Elrod Gin to break off their negotiations, reporting to him that their cotton had been sold.

The testimony is disputed as to the time when various information was transmitted by telephone between Davis and Traylor’s office in Lubbock. Although disputed by Davis, there was testimony that Davis asked if he could use a Traylor form or use the Traylor name, to which Atkins replied emphatically that the Traylor form could not be used unless a price commitment had been made by Traylor. In a subsequent call to Kirkland, Fred Traylor restated the instruction not to use the form without Tray-lor’s authorization. Nevertheless, Davis prepared a Traylor confirmation of purchase form listing the contract price as 78$ per pound. Davis took the form to the Grays’ home, and again led the Grays to believe their cotton was sold. Mr. Gray signed the form, Davis signed for Palmetal, tore off one carbon copy which he left with the Grays exactly as was done in prior years, and said he would keep a copy signed by Traylor at the gin.

At that point, the Grays had completed all steps in advance contracting their 1974 cotton crop just as in 1972 and 1973. Unknown to them, neither Traylor nor anyone else had agreed to purchase their 1974 crop at 78$ per pound or any other price. Davis knew that Traylor, the only buyer with whom he negotiated, had not agreed to purchase the Grays’ cotton. He knew it was fruitless to mail the 78$ confirmation form to Traylor since no agreement had been reached with Traylor. He merely kept it at the gin. Davis also knew that Traylor would not sign a 78$ form even if Traylor were willing to pay 75$ and Palmetal supply the additional 3$ per pound. Davis was aware that Traylor sold the contract forms as commercial paper and could not sell a contract that did not reflect the true obligations of the parties.

Although the information transmitted by Davis was disputed, the jury found in special issue 7 that Buster Atkins of the Tray-lor firm learned in a telephone conversation with Davis on the day it was signed that a 78$ confirmation form had been signed. Not until harvest time in July of 1974, did the Grays learn that Traylor had not purchased their cotton. In the meantime, the market price of cotton had dropped dramatically, and in fact had reached and passed its peak at the time Davis was requesting a price commitment from Traylor.

The Grays instituted this suit alleging breach of oral contract and fraud by Tray-lor and Palmetal. Damages were sought against Palmetal for 3$ per pound on a production of 321,792 pounds of cotton, and against Traylor and Palmetal jointly and severally for the difference in the harvest time market price and 75$ per pound. The jury’s answers to special issues 12-15 regarding the breach of contract claim were disregarded upon motion by the Grays, and the contract cause of action is therefore not before us. Judgment for the Grays was based exclusively on the fraud cause of action.

Appellant Traylor brings 35 points of error. Points 25 — 27 urge error based on violation of the statute of frauds, lack of formation of a contract, and failure to tender the cotton to Traylor according to the terms of the contract. But the contract cause of action was abandoned by the Grays and recovery was based entirely on the tort action of fraud. Therefore, none of these points of error is relevant to the judgment or this appeal. Points 25-27 are overruled.

The theory which the Grays must sustain in order to recover from Traylor demands proof of the essential elements of actionable fraud, which are: 1) a false statement of material fact; 2) made to be acted on; 3) actually believed; and 4) acted on with the consequential injury to the person acting thereon. Custom Leasing , Inc, v. Texas Bank and Trust Company of Dallas, 516 S.W.2d 138, 143 (Tex.Sup.1974); Kain v. Neuhaus, 515 S.W.2d 45, 50 (Tex.Civ.App.—Corpus Christi 1974, no writ); Menking v. Bishman Manufacturing Company, 496 S.W.2d 762, 765-66 (Tex.Civ.App.—Corpus Christi 1973, no writ); Long v. Smith, 466 S.W.2d 32, 36 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n.r.e.).

Since the Grays had no direct contact with Traylor, the Grays cannot hold Traylor liable for the conduct of Davis unless Davis’ actions can somehow be imputed to Traylor and unless Traylor’s defenses are neutralized through some action of its own.

We must first' determine if a false statement of material fact was made. In point 8, Traylor urges us to find the jury’s answer to special issue 1 conclusive against such a finding. We do not agree. Issue 1 inquired whether Davis stated to the Grays at the time of signing the confirmation of purchase form that Traylor had purchased their cotton. The jury answered in the negative. However, in special issues 6, 10 and 11, the jury found that the Grays believed Davis had authority to purchase for Traylor, that he had apparent authority, and that they relied on Davis’ apparent authority.

We believe the collection of representations made by Davis is equivalent to a stated assertion that Traylor had purchased the cotton. Stating “Traylor has purchased your cotton” would have added little to the meaning conveyed to the Grays by the statements of Davis. These representations were: 1) that Davis would call Lubbock (Davis’ standard method of referring to Traylor’s main office); 2) that “we are going to take your cotton”; 3) that “the cotton is sold”; and 4) use of a Traylor confirmation form.- Coupled with their long experience with Davis and past sales exclusively to Traylor through the same procedures and contract form, these statements plus use of the form were equivalent to an outright statement by Davis that Traylor had agreed to purchase their 1974 crop, where in fact, Traylor had not agreed to the purchase. The statement was false and was material.

There can be no question that the false representations were made to be acted upon. Davis brought the form to the Grays’ home with the intent to secure the signature of a member of the Gray partnership. He pursued the negotiations with Traylor and even* agreed for Palmetal to absorb part of the purchase price in order to save the Grays’ ginning business for Palme-tal. As long as the Grays believed their crop was sold to Traylor through Davis, they would be expected to end discussions with Ross Bigham at Elrod Gin. The testimony shows that the Grays acted upon the belief that Traylor purchased their crop and promptly broke off discussions with Big-ham. In reliance on this belief, the Grays made no other effort to sell their crop, although the market took a rapid downward turn. We conclude that the past business dealings among all parties in addition to Davis’ representations in January 1974 permitted the Grays to reasonably rely on Davis and to change their position based on his representations to them. Traylor’s points of error 9 and 10 in which he asserts there was no evidence or insufficient evidence for the Grays to believe Traylor authorized Davis to purchase their cotton for Traylor are overruled.

The next question is whether Davis’ misrepresentations can be attributed to Traylor. Appellant argues in points 1, 6 and 15 that Davis’ relationship with the Grays precludes any form of agency between Davis and Traylor. We do not agree. In special issue 25, the jury found, that Davis acted as agent for the Grays in selling their 1974 crop, whereas in issue 10, the jury found that Davis had apparent authority to purchase the Grays’ cotton for Tray-lor. Appellant says these answers are in irreconcilable conflict and urges that all facts known by Davis must be imputed to the Grays as a matter of law due to the principal-agent relationship between them. Although a principal may not generally recover from another on the basis of a misrepresentation made to him by his own agent, Kunkel v. Poe Land & Development Company, 393 S.W.2d 191, 196 (Tex.Civ.App.—Corpus Christi 1965, no writ), there are situations where the principal is not bound by the acts or knowledge of his agent.

A principal may not be bound where the agent performs unauthorized acts in conflict with the interests of his principal and in pursuit of the interests of another. See Camden Fire Ins. Co. v. Hill, 276 S.W. 887 (Tex.Comm’n Appeals 1925, judgment adopted); Board of Trustees, Tarrant County Junior College v. National Indemnity Company, 484 S.W.2d 399, 403 (Tex.Civ.App.—Fort Worth 1972, writ ref’d n.r.e.); Retailers Fire Ins. Co. v. Jackson Gin Co., 10 S.W.2d 799 (Tex.Civ.App.—Amarillo 1928, writ dism’d); and Aetna Ins. Co. v. Richey, 206 S.W. 383 (Tex.Civ.App.—San Antonio 1918, no writ). Certainly, Davis’ false representations were in conflict with the interest of the Grays and in pursuit of his own interest. We cannot say, however, that they were undertaken for the benefit of Traylor. Upon this state of the facts, neither the Grays nor Traylor is chargeable with knowledge of Davis’ unauthorized acts.

Although Davis did not mislead the Grays in pursuit of Traylor’s interests, he had performed a number of services for Traylor over the years. There is evidence to show that Traylor permitted Davis to initiate contacts with farmers to invite them to make an offer to sell their cotton to Tray-lor; permitted Davis to keep a supply of Traylor’s confirmation of purchase forms at the gin office; and permitted Davis to send confirmation forms to the main office with the last carbon removed without inquiring what happened to the missing copy.

Traylor returned two fully signed copies of the form to Davis rather than sending one to Davis and one to the farmer. Although contracts were between Traylor and the farmers, Traylor remitted the purchase price to Davis, who, in turn, forwarded the net proceeds to the farmers.

All of these acts show a working relationship between Davis and Traylor which could be interpreted by farmers as authorization for Davis to carry out various aspects of cotton purchases on behalf of Traylor. Evidence which lends added weight to this interpretation of these ambiguous acts was the testimony of Bill Gray (brother of Oscar Gray) and Dan Davis who related an incident in 1973 when Bill Gray had ginned a small part of his crop at a gin other than Palmetal. Despite the listing of several gins as authorized processors on the Traylor confirmation form, Davis and Atkins insisted that cotton must be ginned at Palmetal to apply on the Traylor contract. Eventually Atkins succeeded in including this cotton on the contract, and required the processed bales ginned at Producers Gin to be delivered to Palmetal for delivery to Tray-lor along with the main part of the crop ginned at Palmetal. Payment for all the cotton was made to Palmetal. Surely if Traylor dealt with Davis exclusively as an agent for farmers and as merely the source from whom offers to sell were frequently received, it would have had no particular concern over which gin processed the farmers’ cotton and would have accepted cotton processed at Producers Gin without hesitation. Traylor’s concern over Palmetal receiving the ginning business surpasses an interest in merely acquiring baled cotton from the farmer.

Apparent authority is based on estoppel, and it must arise from words or conduct of the principal. Custom Leasing, Inc. v. Texas Bank and Trust Company of Dallas, 516 S.W.2d 138, 144 (Tex.Sup.1974); Douglass v. Panama, Inc., 504 S.W.2d 776, 778 (Tex.Sup.1974). These acts, taken together, clothed Davis with indicia of authority sufficient to communicate to farmers that Palmetal and Traylor had a close working relationship such that Davis could act on behalf of Traylor, and that Traylor could require use of Palmetal Gin before accepting the processed cotton. Although the jury found in special issue 10 that Davis had apparent authority to act on behalf of Traylor, we need not decide if these acts alone are sufficient to bind Traylor as apparent principal. The ability of Traylor to dispute Davis’ agency or apparent authority depends on the application of estoppel. The Grays assert Traylor is liable due to the negligent failure of Buster Atkins to correct the Grays’ misimpression when he learned the Grays believed Traylor had agreed to purchase their cotton. Estoppel, however, is not an independent cause of action, but an equitable defense to preserve rights, and not to bring a cause of action into being. Southland Life Ins. Co. v. Vela, 147 Tex. 478, 217 S.W.2d 660, 663 (1949); Clifton v. Ogle, 526 S.W.2d 596, 602 (Tex.Civ.App.—Port Worth 1975, writ ref’d n.r. e.); Dobbs v. Camco, Incorporated, 445 S.W.2d 565, 571 (Tex.Civ.App.—Houston [1st Dist.] 1969, writ ref’d n.r.e.). Liability cannot be based on estoppel alone. The effect of estoppel is to prevent a party from asserting a legal right to which he would otherwise have been entitled.

The elements of estoppel are: a false representation or concealment of material facts; it must have been made with knowledge, actual or constructive, of the facts; the party to whom it was made must have been without knowledge or the means of knowledge of the real facts; it must have been made with the intention that it should be acted on; and the party to whom it was made must have relied or acted on it to his prejudice. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 932 (1952); Emmord’s, Inc. v. Obermiller, 526 S.W.2d 562, 568 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n.r.e.).

Estoppel can arise by silence as effectively as by words where there is a duty to speak. Employers Casualty Company v. Tilley, 496 S.W.2d 552, 560 (Tex.Sup.1973); Cooper Petroleum Company v. La-Gloria Oil and Gas Company, 436 S.W.2d 889 (Tex.Sup.1969); A. R. Clark Investment Company v. Green, 375 S.W.2d 425 (Tex.Sup.1964); Johnson v. Sovereign Camp, W.O.W., 125 Tex. 329, 83 S.W.2d 605 (1935); Burnett v. Atteberry, 105 Tex. 119, 145 S.W. 582, 587 (1912). Estoppel by silence is based on the principle that, if a person is silent when in conscience he should speak, equity will close his mouth when in conscience he ought to remain silent. Silverman v. Harmon, 250 S.W. 206 (Tex.Civ.App.—San Antonio 1923, writ dism’d). See also 31 C.J.S. Estoppel § 87 and Prosser, Law of Torts, § 105 (4th Ed. 1971). Where estoppel is based on silence or inaction, there must be some element of turpitude or negligence connected with the silence or inaction by which the other party is misled to his injury. Humble Oil & Refining Co. v. Trapp, 194 S.W.2d 781, 786 (Tex.Civ.App.—Austin 1946, writ ref’d).

The first two elements of estoppel are met if Atkins, a member of the Traylor firm, concealed the truth by failing to warn the Grays that no contract had come into existence after Atkins learned of the Grays’ erroneous belief. It is undisputed that neither Atkins nor anyone at Traylor informed the Grays that Traylor had not purchased their cotton. The jury found in special issue 7 that Atkins learned of the Grays belief on the day the confirmation was • signed. Appellant complains there is no evidence or insufficient evidence to sustain the jury finding.

Although Atkins denied receiving a call from Davis indicating the form had been signed, Davis testified that he talked to Atkins or possibly Fred Traylor on the day the Grays signed the confirmation. In this call, Davis testified he stated that the Grays had signed a contract for 78<p per pound and thought their cotton was sold. Although disputed by Davis, the testimony of Atkins and Fred Traylor shows that Davis had inquired a few days before about use of the Traylor name or Traylor form even without a purchase price agreement from Traylor. Any information reaching the Traylor firm indicating a contract for 78<t (a price 3$ per pound higher than Traylor had ever paid) had been signed by the Grays should have altered Traylor to inquire into the possible unauthorized use of its confirmation form. We cannot say the jury’s answer to special issue 7 was without sufficient support in the evidence. Appellant’s points of error 11 and 12 are overruled.

The third element of estoppel requires a party asserting estoppel to be without knowledge or the means of knowledge of the true facts. Barfield v. Howard M. Smith Company of Amarillo, 426 S.W.2d 834, 838 (Tex.Sup.1968); Gulbenkian v. Penn, supra; Richey v. Miller, 142 Tex. 274, 177 S.W.2d 255, 257-58 (1944). There can be no estoppel when the party claiming the estoppel conducts himself with careless indifference to means of information reasonably at hand or ignores highly suspicious circumstances which should warn him of danger or loss. Barfield v. Howard M. Smith Company of Amarillo, supra at page 839. A party is ordinarily under a duty to exercise reasonable care and diligence in relying on statements of an adverse party as a basis for estoppel. The defrauded party, however, is under no duty to make an investigation to discover the existence of fraud, unless and until he has acquired some knowledge of facts that would put a reasonable prudent person on inquiry. Long v. Smith, supra. Where the parties have equal access to information, such as a written contract, there is no concealment. See Barfield v. Howard M. Smith Company of Amarillo, supra, and Champlin Oil & Refining Co. v. Chastain, supra. But where knowledge is unequal, reliance on the representations is reasonable, and failure to make further inquiries is not negligent, es-toppel is not defeated by failure to disco ver the truth. Of course, any party without knowledge could almost invariably ascertain the truth with sufficient diligent inquiry, but the law does not require such inquiry where there is no reason to be suspicious and there is no negligence. See Cooper Petroleum Company v. LaGloria Oil and Gas Company, supra, in which a simple telephone call would have led to ascertainment of the truth, but LaGloria reasonably relied on the representations which made no such inquiry appear necessary. A telephone call from the misled party would have sufficed, but the question was to determine which party had the duty to make the call. The court in Cooper Petroleum placed the duty on the party possessing the knowledge. Similarly, the method by which Davis dealt with the Grays in 1974 was no different from that of prior years, and therefore, there was nothing to trigger any suspicion or apparent need to verify the truth of Davis’ representations or to investigate the lack of communication from Traylor. We conclude that the duty to make the telephone call or other contact rested on Tray-lor.

In the context of estoppel by silence, the fourth element (intention that the concealment be acted upon) is met by turpitude or negligence on the part of the party to be estopped. Cooper Petroleum v. LaGloria Oil and Gas Company, 436 S.W.2d 8891 (Tex.Sup.1969); Champlin Oil & Refining Company v. Chastain, 403 S.W.2d 376 (Tex.Sup.1965); Humble Oil & Refining Go. v. Trapp, supra. In special issue 8, the jury found Atkins was negligent in his failure to notify the Grays. In points of error 13 and 1¾, Traylor contends there is no evidence or insufficient evidence to sustain this finding.

Both Atkins and Idris Traylor testified that they would have made contact with the Grays had they known that the Traylor form had been used and that the Grays were relying upon the sale. Thus, they testified to the standard of care of a reasonable person possessing such knowledge. The jury found Atkins possessed the requisite knowledge and it is undisputed that Traylor did not contact the Grays. It is, therefore, reasonable for the jury and for o- -to conclude that Traylor fell below its own standard of care, and that such failure was negligence. Points 13 and 14 are overruled.

The final element of estoppel requires detrimental reliance on the concealed fact or a change of position. These elements are discussed at length in Petroleum Anchor Equipment, Inc. v. Tyra, 419 S.W.2d 829, 833-34 (Tex.Sup.1967). See also Concord Oil Co. v. Alco Oil and Gas Corp., 387 S.W.2d 635, 639-41 (Tex.Sup.1965); Ybanez v. Anchor Constructors, Inc., 489 S.W.2d 730, 735-36 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n.r.e.). The representations plus the execution of the Traylor confirmation form comprised a promise by Davis that Traylor would purchase the Grays’ cotton. When Atkins learned of this promise that had been made in Traylor’s behalf, it was his duty under the circumstances to take reasonable steps to notify the Grays of the true facts. Any detrimental change of position on the part of the Grays in reliance upon Traylor’s failure to speak would thus estop Traylor from denying Davis’ authority. Cooper Petroleum v. LaGloria Oil and Gas Company, supra. See Restatement (Second) Agency 2B. See also Champlin Oil and Refining Company v. Chastain, supra; A. R. Clark Investment Company v. Green, supra; Johnson v. Sovereign Camp, W.O.W., supra; and Burnett v. Atteberry, supra.

The duty to speak did not arise until someone at Traylor received actual knowledge of the Grays’ belief that the Trayfor confirmation of purchase form was a valid reflection of an oral commitment by Tray • lor. At that moment, failure to warn the Grays resulted in their continued belief ¡u the supposed contract. As in Cooper Petroleum v. LaGloria Oil and Gas Company, supra, the misleading silence caused the Grays to rely on a non-existent promise and to make no effort to reopen negotiations with Bigham or any other buyer. We do not agree with Traylor’s point of error 7 claiming Traylor had no duty to warn. Point 7 is overruled.

We conclude that the elements of estoppel by silence have been met and that Traylor is estopped to deny Davis’ authority due to its own negligent failure‘to warn the Grays of the true situation when Traylor, through Buster Atkins, learned that Davis had used the Traylor form and the Grays believed they had a firm contract to sell their 1974 cotton crop to Traylor for 78$ per pound. Appellant’s points 2-5 complaining of a finding of apparent authority in special issue 10 and reliance upon apparent authority in special issue 11 are overruled.

In summary, fraudulent misrepresentations were made by Davis to the Grays. These fraudulent representations were reasonably believed, were relied upon, resulting in the Grays’ changing their position to their detriment and damages. Traylor is liable because it failed in its duty to warn and is thereby estopped to deny that it clothed Davis with sufficient indicia of authority to make him its apparent agent, or indeed, its actual agent. Traylor’s estoppel to deny Davis’ authority results in making Traylor a participant in the fraud perpetrated by Davis. Because Davis was acting primarily for Palmetal when he decided to pay part of the purchase price himself and devised a flexible agreement with a maximum 75$-3$ split between Traylor and Palmetal, he cannot be said to have made the misrepresentations in the scope of his agency relation with the Grays.

In points of error 28-32, Traylor assorts' there is no evidence, insufficient evidence, or the answer is against the great weight and preponderance for special issues 17 (whether the Grays failed to inquire if their cotton had in fact been sold), 21 (whether the Grays’ failure to insist that Davi'J return a fully signed copy of the confirmation was negligence), and 29 (the earliest date when the Grays, using reasonable diligence, would have discovered that Traylor had not bought their cotton). All of these issues concern contributory negligence on the part of the Grays. In effect, Tr lylor contends that the Grays failed to inform themselves of the true situation, and Jííat this failure negates their liability based on Atkins’ failure to warn. Since contributory negligence is an affirmative defense, Traylor had the burden of proof. We, therefore, interpret his point of error as complaining that contributory evidence was established as a matter of law, or in the alternative, as against the great weight and preponderance of the evidence. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361 (1960).

The Grays testified they did not inquire whether their cotton had actually been sold because they believed the sale was complete at the time of the oral agreement, that Davis said he would have a signed copy at the gin .as in previous years, and they had no reas<& to distrust Davis. But in special issue 17, the-jury determined that the Grays had ns>t failed to make such inquiry. The only testimoriyiindicating the Grays had made inquiry came from Davis who related an incident about a week to 10 days after the confirmation form was signed, when he said he met Jimmy and Sterling Gray on a road while driving in opposite directions. Davis stated that both he and the Grays slowed down, the Grays asked if the contract had come back from Lubbock, Davis answered in the negative, and then each drove on due to the press of oncoming traffic. The Grays deny this incident ever occurred. The response to the Grays’ inquiry would not necessarily communicate to the Grays that Traylor refused to sign — merely that it was not signed and returned to Davis within a week or 10 days. This conflict in testimony was resolved by the jury in favor of finding that inquiry was made, and the jury therefore did not answer issues 18 and 19 inquiring into negligence, proximate cause, and damages conditioned on an affirmative answer to special issue 17.

We cannot say that the jury’s resolution of this conflict is so against the great weight and preponderance of the evidence so as to be clearly wrong. In any event, we believe the Grays were not effectively alerted so as to cause suspicion, and past dealings between the parties permitted them to reasonably believe that Davis had negotiated a firm commitment from Tray-lor. Points 28 and 29 are overruled.

Points 30 and 31 assert that the jury’s answers to special issue 21 was error. In special issue 21 the jury found the Grays’ failure to insist that Davis return to them a copy of the confirmation form signed by Traylor was not negligence. Traylor in order to show that this failure was contribu-torily negligent, needed to prove that farmers in similar situations insisted on a receipt of a fully signed contract. The testimony from Carl Hensz, Bill Gray and Ray Gray, all area farmers who dealt with Palmetal, shows they did not receive a copy signed by Traylor. None of them insisted that Davis send them a copy of the contract rather than keeping it at the gin. There was no testimony from other farmers dealing with Palmetal or other gins to show they insisted on personal receipt of a signed copy. We hold that the Grays were justified in relying on Davis’ oral representations. Traylor failed to carry its burden of proof in its effort to show contributory negligence by means of the Grays’ failure to insist on receipt of a fully signed copy of the confirmation form. Points 30 and 31 are overruled.

In points 32 and 32. Tr.,yior complains of the answer to special issuj 29 in which the jury found that the earlfet date the Grays by use of reasonable diligence would have discovered Traylor had not purchased their cotton was July 13, 1974. In a stipulation, it was agreed by all counsel that the Grays were, told on July 13, 1974 that the contract would not be honored. Traylor contends the Grays could easily have discovered the truth at an earlier date. Wh.de it is true that, they could have done so, the evidence .Ucv.'s that they had no reason lo suspect any problems with the contract, and the' i fore did not fail to use reasonable difig ;; under the circumstances. Points 32 anil . • are overruled.

In point of error 34, Traylor urges reversal due to the admission of testimony by Jimmy and Sterling Gray that Davis explained his failure to inform them of the truth because he had received advice from Atkins and Idris Traylor to hold onto the confirmation form. Traylor objects that such testimony was hearsay as to it and that these statements by an alleged agent cannot be admitted to prove agency. The trial court admitted the testimony on the assumption that additional evidence would be forthcoming to prove agency. Since we have held that Traylor is estopped to deny Davis’ agency, such testimony was admissible as an admission by a party. Even if improperly admitted, however, this testimony was not significant for a finding of agency and cannot be said to have caused an improper verdict. Rule 434, T.R.C.P. Point 34 is overruled.

An injured party is entitled to recover in a tort action such damages as result directly, naturally and proximately from fraud. Maddox v. Worsham, 415 S.W.2d 222, 226 (Tex.Civ.App.—Amarillo, 1967, writ ref’d n.r.e.); El Paso Development Company v. Ravel, 339 S.W.2d 360, 364 (Tex.Civ.App.—El Paso, 1960, writ ref’d n.r.e.). The general measure of damages is the amount with which the plaintiff parted less the value of what he received. Morriss-Buick Co. v. Pondrom, 131 Tex. 98, 113 S.W.2d 889, 890 (Tex.Comm’n App.1938, opinion adopted); George v. Hesse, 100 Tex. 44, 93 S.W. 107 (1906); Success Motivation Institute, Inc. v. Lawlis, 503 S.W.2d 864, 867 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n.r.e.). This does not give the defrauded party the benefit of his supposed bargain, but compensates him for actual pecuniary loss.

The amount of damages attributed to Atkins’ negligence were determined by the jury in special issue number 9, which asked

“Wb.dt sum of money, if any, if paid now in .Cash, do you find from a preponderance cf the evidence would fairly and reasonably compensate the Grays for the pecuniary loss, if any, proximately caused by such negligence?
Answer in dollars and cents or ‘none’.
We, the Jury, answer: $77.353.78”

Traylor objected to special issue 9 on the following grounds: (1) it was not supported by the pleadings, (2) and (3) there was no evidence or insufficient evidence to warrant its submission, and (4) it utilized the expression “pecuniary loss” which is not in common use nor defined or explained to the jury. There was no objection to the broad nature of the issue which encompassed the elements of proximate cause and pecuniary loss. Issues may be submitted broadly under Rule 277, T.R.C.P. combining elements or issues.

On appeal, Traylor complains that special issue No. 9 is not supported by the pleadings, and that the jury’s finding of pecuniary loss cannot support a judgment due to insufficient evidence and use of an improper measure of damages.

In their pleadings the Grays alleged the best price for which they could sell their cotton at harvest time in July and August of 1974 was 46$ per pound. In a trial amendment they additionally alleged the market price of cotton during the same period was 46$ per pound. Traylor objected to the trial amendment on the basis of surprise. The court overruled the objection, but offered to consider a request for delay after the Grays rested their case if Traylor desired time to meet this new pleading. Traylor expressly waived a recess. Point of error 20 complaining that evidence of market price supplied by Atkins and Fred Traylor was not supported by the pleadings is overruled because of the trial amendment.

When the fraudulent misrepresentations were made by Davis and communicated to Traylor, the advance contract price was 75$ per pound. In reliance on Davis’ misrepresentations, the Grays gave up the opportunity to sell their crop to any buyer at the current market price. They received what appeared to be a binding contract, but was in fact a worthless piece of paper in the eyes of both Davis and Traylor. The damages naturally flowing from the negligent failure to warn (which we have previously concluded estops Traylor from denying Davis’ authority to act as its agent) is the actual loss measured by value of the crop at the time of the act diminished by the value of the crop at harvest time when the fraud was discovered.

Traylor urges that specific jury findings of contract price and of market price at time and place of delivery are essential to any proper measure of damages, which he asserts is the difference between contract price and market price at the time and place of tender. The contract price is not controlling. It is the actual value of the crop when the misrepresentations were made; not the value stated in the false representations. See George v. Hesse, supra. The evidence reveals the market for 1974 cotton under advance contract was 75$ per pound at the relevant time and that it never exceeded this amount. The jury found in special issue 16 that the market value of the Grays’ 1974 crop at Harlingen, Texas, at the time and place of signing the confirmation of purchase was 75$ per pound.

The fraud was discovered at harvest time, as found in special issue 29. Purchases at that time of year were not on advance contract, but on actual baled cotton. The Grays’ crop was processed into bales suitable for selling during July and August of 1974. Accurate assessment of market value during July and August of 1974 was difficult because most cotton had been advance contracted or was being held by farmers. Willing buyers and sellers seldom agreed on a price because of the generally low prices. Expert testimony was based on knowledge of the market in general and on sales of which the witnesses had personal knowledge.

Traylor contends all testimony regarding market price is irrelevant to any proper measure of damages because the willing seller element in the legal definition of market price is missing, and because it speaks only to sales of other crops and does not assess the value of the Grays’ crop. We believe the testimony is competent to establish a market price in July and August. The scarcity of sales does not prevent computation of market price. Cotton was being sold during that time. There is no evidence to indicate buyers were forced to buy or farmers were forced to sell. Those who had not advance contracted had an alternative, as indicated by the action of the Grays who did not sell their crop immediately, but placed it in a government loan.

A number of quality characteristics affect the value of processed cotton. Paul Bruce, manager of Elrod Gin who ginned the Grays’ 1974 crop, testified that the Grays’ cotton did not fall below any quality specification so as to adversely affect the price except micronaire measurement. He stated that their cotton, compared to cotton with acceptable micronaire readings, would be discounted 1.25$ per pound. Expert testimony of the price of cotton not subject to a quality discount was provided by Atkins, Fred Traylor, and Vernon Murphy, a cotton broker. Only Atkins and Murphy were asked to separate the harvest time price into July and August components. The maximum and minimum ranges were 54$ to 55$ for July and 46$ to 50$ for August.

In special issue 9 the jury calculated the amount of pecuniary loss to be $77,353.78, which we find to be supported by the evidence. The Grays, however, calculated this amount to exceed the maximum amount supported in the evidence by $1,295.52. Upon acceptance of the Grays’ remittitur, judgment was entered against Traylor for $76,058.26. The greatest damages supportable by the evidence are computed by using the difference in market value when the contract was signed and the lowest market value at harvest time, discounted by a 1 ¼$ per pound due to high micronaire content. These figures are:

212,114 pounds in July @(54fi - 1 l/4¿ per pound) $111,890.13
109,678 pounds in August @(46¿ - 1 l/4¿ per pound) $ 49,080.90
Minimum value of harvested crop 160,971.03
Maximum loss supported by the evidence $ 80,372.97

We conclude that both the jury finding and the judgment are within the amount of damages supported by the evidence.

Traylor contends these prices do not prove market price because they are not shown to relate specifically to the Grays’ crop. But the witness who was familiar with the Grays’ cotton (Paul Bruce) stated their cotton was subject to discount on only one quality characteristic, high micronaire content. In all other respects it met the quality demands of buyers. Murphy and Atkins supplied testimony of the price of non-discounted cotton. Taken together, this evidence is sufficient to establish a market price applicable to the Grays’ cotton.

Finally, we do not agree with Traylor’s contention that a specific jury finding of market price at time and place of delivery is essential. This tort recovery based on actual loss can be calculated as a difference in value of the crop at the commencement and conclusion of the fraud. See Morriss-Buick Company v. Pondrom, supra, and George v. Hesse, supra. As stated above, Traylor did not object to the broad form of the question, and any complaint regarding the form or substance of the special issue is waived. Allen v. American National Insurance Company, 380 S.W.2d 604, 609 (Tex.Sup.1964); Lanphier Construction Company v. Fowco Construction Company, 523 S.W.2d 29, 35 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n.r. e.); Rules 272, T.R.C.P. The answer of the jury and the amount of the judgment are supportable using a proper measure of damages. Traylor’s points of error 16 through 24 regarding damages are overruled.

Appellant in his final point of error seeks indemnity and in the alternative contribution from Palmetal. Article 2212, Tex. Rev.Civ.Stat.Ann. (1971), states:

“Any person against whom, with one or more others, a judgment is rendered in any suit on an action arising out of, or based on tort, except in causes wherein the right of contribution or of indemnity . exists under the common law, shall, upon payment of said judgment, have a right of action against his code-fendant . . . ”

Therefore, where there exists a right of indemnity under the common law there is no right of contribution under Art. 2212, Tex.Rev.Civ.Stat.Ann: (1971). Strakos v. Gehring, 360 S.W.2d 787 (Tex.Sup.1962).

Under the common law doctrine of “active versus passive” negligence there is a right of indemnity for the secondary or passive wrongdoer. The general rule of this doctrine is that where two parties are liable to another for tort, the one by construction of law on account of some omission of a duty of protection or care owed and the other because he is the active perpetrator of the wrong, the right of indemnity may exist in the one whose wrong was only a secondary one. Strakos v. Gehring, supra; Coastal States Crude Gathering Company v. Williams, 476 S.W.2d 339 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n.r.e.); South Austin Drive-In Theatre v. Thomison, 421 S.W.2d 933 (Tex.Civ.App.1967).

We have specifically found that the action of Davis toward the plaintiff constituted fraud. We have further held that Traylor is liable for the acts of Davis because it was aware of the Grays’ detrimental reliance upon Davis’ authority to act for Traylor. We have, therefore, two acts of negligence resulting in injury to the plaintiff. One act constitutes the active, perpetrated fraud (Davis’ misrepresentation) and the other constitutes an omission of a duty of care owed (Traylor’s failure to speak). This situation clearly falls within the common law concept of “active versus passive negligence”. Therefore, appellant Traylor has no right of contribution under Art. 2212, but is entitled to full indemnity from Palmetal for the judgment entered.

The judgment is reformed to order Palmetal to indemnify Traylor for the amount of Traylor’s liability to the Grays. The judgment of the trial court, as reformed, is affirmed.

OPINION ON MOTION FOR REHEARING

Subsequent to our rendition on January 6, 1977, of our original opinion in this case, Traylor, appellant-defendant, filed its motion for leave to file an amended brief containing the name of “Wendell Davis” along with the other names of individuals comprising the partnership of Palmetal Gin Company.

The name “Wendell Davis”, together with the names of the other partners, was contained in the trial court pleading and the judgment. Appellant says, however, that the name of “Wendell Davis” was inadvertently omitted from its original brief filed with us. Consequently, in our original opinion we did not include that name either. We did include in our opinion, however, the names of Major Davis, Dan A. Davis, G. Wayne Davis and Jean E. Kirkland, Jr., being the names of all the other partners. Neither Palmetal nor any of its partners has replied to this motion.

Rule 431, T.R.C.P., provides in part:

“Briefs may be amended or supplemented at any time when justice requires . . ”

Even after submission and rendition of its opinion, an appellate court may still grant leave to file an amended brief. Minneapolis-Moline Company v. Purser, 361 S.W.2d 239 (Tex.Civ.App.—Dallas 1962, writ ref’d n.r.e.). In accordance with those principles and the facts of this case we therefore grant appellant’s motion for leave to file its amended brief.

Then Traylor in its motion for rehearing requests, among other things, that we reform the judgment of the trial court, and so modify our opinion, to order indemnity in favor of Traylor against Major Davis, Dan A. Davis, G. Wayne Davis, Wendell Davis and Jean E. Kirkland, Jr., individually and d/b/a Palmetal Gin Company, jointly and severally for the amount of Traylor’s liability to the Grays and to order indemnity in favor of Traylor against those individuals for one-half of the costs of this appeal. We grant Traylor’s request.

Accordingly, we now reform the judgment of the trial court to order Palmetal and its partners, including Wendell Davis, to indemnify Traylor for the amount of Traylor’s liability to the Grays, as requested by Traylor. Also costs of this appeal are taxed one-half to Palmetal and its partners and one-half to Traylor.

Traylor’s motion for rehearing is in all other respects overruled.