author: DOUGLAS, Judge.

text:
    Ex parte Leroy SAMPSON
    No. 59886.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 16, 1979.
    Jeffrey G. Malm, Huntsville, for appellant.
    James S. McGrath, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS and TOM G. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

This is an application for post-conviction writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P. Petitioner contends that his sentence is above that authorized by law.

Petitioner was indicted for the offense of theft of property having a value of over $20 and under $200. The indictment contains two additional paragraphs, each alleging a prior felony conviction using the language necessary to allege that an individual is an habitual offender. V.T.C.A., Penal Code, Section 12.42(d). Sampson entered a plea of guilty before the court. The statement of facts for that proceeding is not before us. The docket sheet indicates “Court proceeded on counts one and two.” Sampson’s guilty plea was accepted and the court assessed his punishment at eighteen years.

Section 31.03(d)(4)(C) of the Penal Code provides that theft is a third degree felony where:

“ . . . the value of the property stolen is less than $200 and the defendant has been previously convicted two or more times of any grade of theft . . .”

Section 12.42(a) provides:

“If it be shown on the trial of the third-degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished for a second-degree felony.”

Apparently, at the time of the original guilty plea the parties thought that by alleging two prior felony theft convictions the primary offense could be both upgraded to a third degree felony pursuant to Section 31.03(d)(4)(C) and enhanced to an habitual offender under Section 12.42(d). Taking his habitual indictment, they could dismiss one paragraph and reduce it to a second offender indictment pursuant to Section 12.42(a) and achieve a punishment range of two to twenty years.

The court found Sampson guilty of the primary offense and found true only one paragraph alleging a prior conviction. Without finding true both prior convictions, no felony convicted could result. Thus, the record before us supports only a judgment of a Class A misdemeanor with a finding of one prior felony conviction. The punishment range for a Class A misdemeanor with a prior felony conviction is confinement in jail for a term of ninety days to one year. V.T.C.A., Penal Code, 1243(a).

The original indictment, alleging a primary offense and two prior convictions, properly alleged a third-degree felony. The court had jurisdiction of the case. The court also had the power to find Sampson guilty of a lesser included offense, even a misdemeanor, without effecting its jurisdiction. See Jones v. State, 502 S.W.2d 771 (Tex.Cr.App.1973); McKenzie v. State, 159 Tex.Cr.R. 345, 263 S.W.2d 562 (1953). By finding Sampson guilty only of the primary offense and one prior conviction, the court found him guilty of a Class A misdemeanor with a punishment range of ninety days to one year.

Relief is granted to petitioner. The judgment is reformed to reflect conviction of a misdemeanor. Since the court originally assessed punishment, the case is remanded for reassessment of punishment within the statutory range.


source: Caselaw Access Project

author: ROBERTS, Judge.

license: Public Domain

text:
    Ex parte Richard DURAN.
    No. 60222.
    Court of Criminal Appeals of Texas, Panel No. 2.
    May 30, 1979.
    Paul G. Johnson, Huntsville, for appellant.
    Carol S. Vance, Dist. Atty. and Douglas M. O’Brien, Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

ROBERTS, Judge.

On June 29, 1977, we reversed the applicant’s conviction for possession of heroin. Duran v. State, 552 S.W.2d 840 (Tex.Cr. App.1977). At the applicant’s non-jury trial, it had been stipulated that the contents of an exhibit were heroin, and a chemist’s laboratory report had been admitted by stipulation. The record had not contained the applicant’s written waiver and consent to stipulation, approved by the court, as required by Article 1.15 of the Texas Code of Criminal Procedure. A majority of this Court held: “Since the State did not follow the requirements of Article 1.15, V.A.C. C.P., the stipulation may not be considered and the evidence is insufficient to support the convictions. [Sic; only one conviction was affected by the stipulations.]” 552 S.W.2d at 843.

On remand, the applicant was convicted again. By his post-conviction application for habeas corpus relief, the applicant now says that .we should apply retroactively Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), and relieve him from the conviction on the re-trial which followed our remand. We already have held that Burks and Greene will be applied retroactively. Ex parte Mixon, 583 S.W.2d 378, (Tex.Cr.App.1979). But this is not the end of the matter, for Burks and Greene do not clearly require that the relief sought be granted. That we .used the words “the evidence is insufficient to support the conviction” (552 S.W.2d at 843) in our earlier opinion, a year before Burks and Greene were decided, does not control the correct analysis of this case. The words are not a magic phrase which produces automatic results.

Burks held that “the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, [and] the only ‘just’ remedy available for that court is the direction of a judgment of acquittal.” 437 U.S. at 18, 98 S.Ct. at 2150. The Supreme Court was careful to distinguish reversals caused by trial error from those resulting from evi-dentiary insufficiency.

“In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e. g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecu-torial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.” 437 U.S. at 15, 98 S.Ct. at 2149.

Therefore, reversal for trial error does not preclude another trial.

Greene held that the Burks standard applies to state criminal proceedings. “But the situation [in Greene] was confused by the fact that three of the four Justices [of the seven-member Supreme Court of Florida who voted to reverse Greene’s first conviction] expressly qualified their action by ‘specially concurring’ in an opinion which discussed only trial error." 437 U.S. at 25, 98 S.Ct. at 2155. Because the state courts' actions were subject to varying interpretations, the Supreme Court remanded the case for reconsideration. Before doing so, the Court delivered this dictum (the last sentence of which is a footnote): [I]t could reasonably be said that the concurring Justices thought that the legally competent evidence adduced at the first trial was insufficient to prove guilt. That is, they were of the opinion that once the inadmissible hearsay evidence was discounted, there was insufficient evidence to permit the jury to convict. We express no opinion as to the double jeopardy implications of a retrial following such a holding.” 437 U.S. at 26, 98 S.Ct. at 2155. Our holding in Duran’s appeal was just “such a holding.”

Our holding in the applicant’s appeal was that, once the inadmissible stipulated evidence was discounted, there was insufficient evidence to support the conviction. This holding presents the question on which the Supreme Court expressed no opinion in Greene: What are the double jeopardy implications of a reversal by an appellate court of a conviction that was supported only by inadmissible evidence (in this case, a stipulation admitted into evidence without the defendant’s written waiver of his rights to the appearance, confrontation, and cross-examination of witnesses and his written consent to stipulation and introduction of written statements)?

Burks points out that an appellate reversal on grounds of insufficient evidence will be confined to cases where it is clear that the prosecution has failed. Such a reversal means that the prosecution was given one fair opportunity to offer whatever proof it could assemble, and it presented a case so lacking that it should not have been submitted to the jury. Since a jury’s verdict of acquittal is final, a holding that the evidence was insufficient should be just as final. 437 U.S. at 16-17, 98 S.Ct. 2141. In effect the appellate court’s reversal merely supplies the directed verdict of acquittal which the trial court should have ordered. Does this applicant’s case match the description in Burks of a case necessitating appellate reversal for insufficient evidence?

The applicant was on ten years’ probation when the alleged offense occurred. Both a motion to revoke probation and an indictment alleged that on April 3,1975, the applicant possessed heroin. On August 21, 1975, a hearing was held on the motion to revoke probation. The State presented a chemist’s testimony that the substance found in the applicant’s car included heroin. We affirmed the order revoking probation. Duran v. State, supra. On October 22, 1975, the applicant went to trial, without a jury, on the indictment. The State’s proof was substantially the same, except that the chemist did not testify. Instead, the following occurred:

“MR. URQUHART [Prosecutor]: Judge, at this time the State would offer a stipulation: That the substance contained in State’s Exhibit 1 about which Officer Brumley has testified is heroin. May it be so stipulated?
“MR. GAILEY [Defense Counsel]: We have no objection to that, Your Honor. I have discussed it with the State.
“THE COURT: Do you so stipulate?
“MR. GAILEY: Yes, sir.
“THE COURT: Is that also your stipulation, Mr. Duran?
“THE DEFENDANT: Yes, sir.
“MR. URQUHART: Would like to offer into evidence as State’s Exhibit 3 the chemist’s laboratory report.
“MR. GAILEY: No objection. We so stipulate.
“THE COURT: State’s Exhibit No. 3 is admitted.
“MR. URQUHART: We would offer into evidence State’s Exhibit 1 and 2, the heroin and the envelope.
“MR. GAILEY: No objection, Your Honor.
“THE COURT: State’s Exhibits 1 and 2 are also admitted.
“MR. URQUHART: Just so the record can be clear, may we stipulate that State’s Exhibit 3 is the report of Peter Christian regarding his analysis of State’s Exhibit 1?
“MR. GAILEY: Yes.
“MR. URQUHART: The State rests.
“THE COURT: Are you ready to proceed, Mr. Gailey? [And the defense opened its case.]”

As we have already held on appeal, the trial court erred in accepting this stipulation. The trial court should have ruled that the stipulation was improper without the defendant’s written waiver and consent. But at that point it would not have been correct for the trial court to have directed a verdict of not guilty on the basis of insufficient evidence. The State had not yet rested. If the trial court had made the proper ruling, the defendant might have given his written waiver and consent. If he refused, the State could have sought to present, by other testimony or evidence, its proof of the chemical composition of the exhibits.

This situation is different from that presented in Burks, in which the trial court’s error was in failing to grant a motion for new trial which was based on insufficiency of the evidence. In the applicant’s case, the basic error was not failure to recognize, after the State had rested, that the evidence was insufficient; it was error in admitting evidence. We think that this basic error, upon which our earlier reversal rested, was therefore trial error. Properly construed, our holding was not that the State had failed to prove its case, but that it had been permitted erroneously to prove its case through incorrect receipt of evidence. Cf. Burks, 437 U.S. at 15, 98 S.Ct. 2141, quoted above. A reversal for such trial error as was committed in this case is not tantamount to a holding by this Court that a directed judgment of acquittal should have been entered. It was a holding that the applicant should have a fair readjudication of his guilt free from error. For this reason, our earlier reversal was not one that would bar a re-trial because of the application of the double jeopardy clause in Burks and Greene.

We deny the relief requested in Cause 227,770 and remand the applicant to custody-

      . The applicant also asked for jail-time credit on another sentence which he is serving. The trial court already has entered a nunc pro tunc order correcting the beginning date of that sentence, and no further relief is required.


author: DOUGLAS, Judge. /s/ Robert Huttash ROBERT HUTTASH

text:
    Ex parte Paul Walter REID.
    No. 61314.
    Court of Criminal Appeals of Texas, Panel No. 2.
    May 30, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

DOUGLAS, Judge.

The brief of the Honorable Robert Hut-tash, State’s Prosecuting Attorney, is adopted as the opinion of the Court. It is as follows:

“This is a habeas corpus appeal pursuant to Article 44.34, Vernon’s Ann.C.C.P., in which appellant challenges the order of the trial court which remanded to the custody of the Sheriff of Potter County for extradition to the State of Montana.
“The record was filed in this Court on April 18, 1979, and this Court obtained jurisdiction. McGee v. State, 445 S.W.2d 187 (Tex.Cr.App.1969); Ex parte Bradshaw, 527 S.W.2d 571 (Tex.Cr.App.1975). On April 27, 1979, appellant escaped from the Potter County medium security facility. This is evidenced by the affidavit of Homer Ewton, Captain of Special Services, Potter County Sheriff’s Office. See Article 44.10, Vernon’s Ann.C.C.P. Based on this affidavit, the State Prosecuting Attorney has filed his motion to dismiss the instant appeal because of appellant’s escape from custody. See Article 44.09, Vernon’s Ann.C.C.P. This brief is respectfully submitted in support of that motion.
“The State has been unable to find any case which directly holds that an extradition appeal will be dismissed where the defendant escapes from custody. Article 44.09, supra, provides, in pertinent part:
“ ‘If the defendant, pending an appeal in the felony case, makes his escape from custody, the jurisdiction of the Court of Criminal Appeals shall no longer attach in the case. Upon the facts of such escape being made to appear, the court shall, on motion of the State’s attorney dismiss the appeal; but the order dismissing the appeal shall be set aside if it be made to appear that the defendant has voluntarily returned within ten days to the custody of the officer from whom he escaped; . . . .’
“Ex parte Bradshaw, supra, was an appeal from an order in a habeas corpus proceeding brought to reduce bail. The defendant was charged with committing five burglaries and was being held on fugitive warrants from Mississippi and Oklahoma. There, this Court clearly faced the question of the applicability of Article 44.09, supra, to an appeal from an order in a habeas corpus proceeding brought to obtain a reduction in bail. The Court stated:
“ ‘The Court of Appeals in an early case held that the statute in effect at the time which was almost identical in wording to Article 44.09, V.A.C.C.P., included an appeal from an order in a habeas corpus proceeding brought to obtain bail in a capital case. Ex parte Wood, 19 Tex.App. 46 (1885). The appeal in that case was dismissed and it was said that the statute was not confined or limited to appeals in felony cases in which the defendant had been tried and convicted, but that it was applicable to all appeals in felony cases. Ex parte Wood, supra, controls our disposition of this appeal.
“ ‘The State’s motion is granted; the appeal is dismissed.’
“The supporting papers in the instant cause reflect that appellant stands charged in Montana with felony theft. It is respectfully submitted that the reasoning of Bradshaw and Wood should be extended so as to authorize dismissal of appeals where defendants seek to challenge their extradition” to answer felony charges in another state.

“But, even if appellant were not charged with a felony in the State of Montana, the State would still submit that the instant appeal should be dismissed. In the case of Matter of M. A. G., 541 S.W.2d 899 (Tex. Civ.App.-Corpus Christi 1976), writ refused n. r. e., an appeal from an adjudication of juvenile delinquency was dismissed where the juvenile was no longer in the custody of juvenile authorities. The basis of the juvenile delinquency determination there was a charge of misdemeanor theft. Yet, Article 44.09, supra, is discussed in that opinion as well as the holding of the United States Supreme Court that the statute was constitutional in Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975).

“In Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970), the United States Supreme Court stated that

“ ‘[n]o persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraint placed upon him pursuant to the conviction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disenti-tles the defendant to call upon the resources of the Court for determination of his claims.’
“The Supreme Court’s decision represents sound policy.
“Thus, regardless of whether Article 44.-09, supra, can be applied to an extradition appeal, sound policy dictates that an appellate court should not be called upon to determine the merits of a defendant’s claim when he is not under restraint. As this Court stated in Rodriguez v. State, 457 S.W.2d 555 (Tex.Cr.App.1970):
“ ‘One cannot test the propriety of his confinement in jail by escaping from it. Remedies, other than escape, are available for procuring through legal process the release of those who are unlawfully held in custody.’

“If this Court were to decide appellant’s contentions on their merits, the most it could do would be to order appellant discharged from further restraint by virtue of the Texas Governor’s warrant; however, appellant has discharged himself by escaping from custody. Judicial time should not be wasted.

“The State’s motion to dismiss should be granted.

“Respectfully submitted,

/s/ Robert Huttash

ROBERT HUTTASH

State Prosecuting Attorney”

The motion is granted. The appeal is dismissed.


author: DALLY, Judge.

text:
    Ex parte Dennis BRINKMAN.
    No. 59952.
    Court of Criminal Appeals of Texas, En Banc.
    June 6, 1979.
    Terry G. Collins and Stanley G. Schneider, Houston, for appellant.
    Carol S. Vance, Dist. Atty., and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   Opinion on Appellant’s Motion for Rehearing

DALLY, Judge.

This is an appeal from a habeas corpus proceeding in which the appellant sought reduction of bail pending appeal.

On February 1, 1979, in a per curiam opinion this appeal was affirmed with the opinion showing that no statement of facts had been filed. On motion for rehearing it was shown that through no fault of the appellant the statement of facts which had been filed was not included in the record. The statement of facts has now been included in the record and we will reconsider the appellant’s contentions.

The record before us has been very poorly developed by both the State and the appellant. The appellant filed his application for writ of habeas corpus by merely alleging that the . . defendant is illegally held and deprived of his liberty by . the Sheriff of Harris County.” It is not alleged that the appellant had been convicted of two offenses. The return on the writ of habeas corpus which is in the transcript states that the appellant was being held on indictments and capiases in two causes charging him with delivery of controlled substances.

The State on the hearing of the writ failed to introduce the Sheriff’s return on the indictment. The State also failed to introduce the judgment and sentence showing the appellant had been convicted. However, the judge stated:

“Let the record reflect in Cause No. 279663 and 279664 this defendant had been convicted of the offense of delivery of a controlled substance and in each case it was a plea of guilty to the jury. The punishment was assessed at five years in the Texas Department of Corrections in each case. This hearing is for bond.”

The appellant was then called as a witness and testified that he had been convicted of the two offenses. His testimony is that his bail pending appeal in each case is $25,000. The appellant testified that he owned no property; he had been employed before being incarcerated; and he could obtain employment if released on bond. He testified he could make bail in the amount of $5,000 and possibly $10,000 in each case. He could not make bail in the amount of $50,000. The appellant had been a resident of Harris County for nine years; he was thirty-two years old; he had been recently married; and although he had planned to go to Florida, he had changed his plans and intended to remain, in Harris County. He had never failed to appear when his case was called on the court’s docket except on the first setting when there was some “mix-up” and he did not get notice to appear.

The appellant’s wife lived with her parents; she was employed as a receptionist and earned $140 per week. She had title to an automobile which she indicated had been furnished to her by her father. She testified that she would probably be able to raise about $1,500 to pay a bonding fee and that she had already helped pay for the record for the appellant’s appeal.

A witness who was in the real estate business and owner of two sandwich shops testified that he had known the appellant for about three years. The appellant had worked for him for about a year and a half as manager of a pizza parlor. This witness said that he would employ the appellant if he were released on bond to manage a sandwich shop, and he would be able to pay him somewhere between $150 and $200 per week. The witness also said he would be willing to let the appellant have $500 to use to pay the bond fee.

The trial judge stated that he wanted the record to reflect that the jury had assessed punishment of imprisonment for five years in each case, the minimum provided by law, and the appellant had testified that he made two sales of controlled substances purely for profit and for no other reason. The record does not show the quantity or what kind of controlled substance the appellant sold. There is nothing in the record to show that the appellant has any other criminal record.

After hearing the evidence the trial judge refused to reduce bail and ordered that the bonds remain at $25,000 in each case. We are reluctant to hold that the trial judge who had heard the witnesses and had all of the facts before him abused his discretion in refusing to reduce bail, but in view of the record before us, it appears that bail in the amount of $15,000 in each case would be sufficient and should be reduced to this amount.

It is so ordered.


author: TOM G. DAVIS, Judge.

text:
    Nicanor Cisneros GONZALES, Appellant, v. The STATE of Texas, Appellee.
    No. 57861.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 6, 1979.
    Pat McDowell, Dallas, for appellant.
    Andy Shuval, Dist. Atty., Hereford, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for possession of heroin. Punishment, enhanced by two prior felony convictions, was set at life.

At the outset, appellant contends the court erred “in permitting the jury to hear testimony that the defendant said he had been in trouble before for burglary” (at the guilt stage of the trial).

At about 12:30 in the morning on January 28, 1976, appellant was stopped by Deaf Smith County officers while driving an automobile in a westerly direction on Farm-to-Market Road 1062. Deputy Sheriffs Judy Murray and Johnny Moya, along with dispatcher Joan Heun and David Ruland, were patrolling following a volleyball game in which they had participated when they observed the vehicle appellant was driving. Murray testified, “I noticed a vehicle weaving in the road and we stopped a subject for possible DWI.” Murray went up to the vehicle after it was stopped, asked appellant for his driver’s license, and “I asked him to have a seat in the patrol car while we ran a check on his driver’s license.” Deputy Moya testified that while the check was being made on appellant’s driver’s license, “I asked the defendant some questions.” Under questioning by appellant’s counsel, Moya agreed that appellant would not have been “allowed to go at least until you-all were through . . . ” and “for all practical purposes he was under arrest.” Under questioning by the prosecutor, Moya stated that appellant had not been arrested for any crime. The admission of the following testimony by Moya over appellant’s objection forms the basis of appellant’s complaint:

“I asked the defendant if he had been in trouble before and he stated that he had and I asked him what for and he said burglary.”

Moya stated that after obtaining appellant’s consent they searched his car and found the contraband.

The State urges that appellant was not under arrest and that the statement was admissible to show the “state of mind and condition of the Defendant as to the matter of consent.”

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the United States Supreme Court held that evidence obtained as the result of a custodial interrogation was inadmissible unless the State proved that proper warnings were given to the defendant and an affirmative waiver of rights was shown. See Art. 38.22, V.A.C. C.P. Custodial interrogation was defined in Miranda as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” It is not necessary that an accused be under formal arrest prior to the interrogation for Miranda rights to arise. Ancira v. State, Tex.Cr.App., 516 S.W.2d 924. A number of factors are significant in determining whether a defendant is in custody. Probable cause to arrest, subjective intent of the police, focus of the investigation, and subjective belief of the defendant have all been deemed relevant. United States v. Phelps, 443 F.2d 246 (5th Cir. 1971); Newberry v. State, Tex.Cr.App., 552 S.W.2d 457; Ancira v. State, supra. In Miranda, the Supreme Court stated that “in custody” was a shorthand phrase for what Escobedo v. Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, described as an investigation which has focused on the accused.

In Brown v. State, Tex.Cr.App., 475 S.W.2d 938, this Court found that information obtained from the defendant did not come as the result of a custodial interview. There an investigation was being made into an unsolved murder and the prosecutor and officers were checking on all sources of information. The defendant was asked to come to the district attorney’s office since he had discovered the bodies of the victims. The defendant, accompanied by his uncle, went voluntarily to the prosecutor’s office and left with his uncle after the interview was concluded. It was not until additional information came to the attention of law enforcement officials that the investigation began to focus on the defendant.

Officer Murray, the driver of the patrol car, described the driving of appellant prior to his being stopped, “He would drive across the center part of the roadway, he would go off of the edge of the roadway, hit the dirt, come back onto the roadway, but as far as how many times I didn’t count them.”

Clearly, the officers had the right to stop appellant’s car after observing the manner in which it was being driven. Undoubtedly, appellant was the subject of an investigation undertaken by the officers by checking on his driver’s license. While the questioning of appellant did not take place at the station house, it occurred in a patrol car and the testimony of Murray reflects that she and Moya were in uniform and armed. In Ancira, we noted that there was little difference in questioning in the police station and interrogation in a patrol car. While appellant was seated in the patrol car with the officers awaiting a radio report on his driver’s license, it is inconceivable that he was free to leave if he had desired to do so. All of the foregoing factors dictate that appellant’s freedom of action at this point in time had been limited in a significant way.

Our review of all the pertinent circumstances in the instant case dictates that the complained-of statement by appellant about being in trouble for burglary (in response to the officer’s questions) resulted from custodial inquiry. The failure to comply with Miranda v. Arizona, supra, and Art. 38.22, supra, rendered same inadmissible.

Further, we cannot agree that the conversation between the officer and appellant was admissible as res gestae of the offense or arrest. The complained-of utterance in response to the officer’s inquiry cannot be characterized as a spontaneous outgrowth of the main fact. Newberry v. State, supra; Smith v. State, Tex.Cr.App., 507 S.W.2d 779.

The admission of the complained-of statement was error and requires reversal of this cause.

The judgment is reversed and the cause remanded.


text:
    William A. KNIGHT, Appellant, v. The STATE of Texas, Appellee.
    Nos. 60740-60745.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 6, 1979.
    Pat Bryant, San Antonio, Allan R. Man-ka, on appeal only, San Antonio, for appellant.

      Bill M. White, Dist. Atty., Dick Ryman and Anton Paul Hajek, III, Asst. Dist. At-tys., San Antonio, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and CLINTON, JJ.
   OPINION

ROBERTS, Judge.

On June 19, 1978, appellant entered pleas of guilty to separate indictments charging him with the offenses of burglary (Cause No. 60,740), carrying a prohibited weapon (Cause No. 60,741), aggravated robbery— two cases (Cause Nos. 60,742 and 60,743), attempted murder (Cause No. 60,744) and attempted burglary (Cause No. 60.745). The court convicted the appellant in each case and assessed his punishment accordingly.

Appellant’s court-appointed counsel has filed separate briefs in each of the six cases on appeal. Counsel has concluded that the appeals from the burglary and aggravated robbery convictions (Cause Nos. 60,740 and 60,742-60,743, respectively) are wholly frivolous and without merit. The briefs meet the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). See Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969); Jackson v. State, 485 S.W.2d 553 (Tex.Cr.App.1972); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974). Copies of these briefs have been delivered to appellant and he has been advised of his opportunity to examine the record and file a pro se brief. No pro se brief has been filed.

We have reviewed the record and counsel’s briefs in these three cases and agree that the appeals are wholly frivolous and without merit. Further, we find nothing in the record that might arguably support these appeals. Accordingly, the judgments of conviction for the offenses of burglary (Cause No. 60,740) and aggravated robbery — two cases (Cause Nos. 60,742 and 60,-743) are affirmed.

In appealing his conviction for possession of a prohibited weapon (Cause No. 60,741), appellant challenges the sufficiency of the evidence introduced to support his guilty plea. The indictment alleges, in pertinent part, that

“. . . on or about the 29th day of January, A.D., 1978, WILLIAM ARTHUR KNIGHT did then and there knowingly and intentionally carry on and about his person A HANDGUN, on premises licensed and issued a permit by the State of Texas for the sale and service of alcoholic beverages, namely: PEPPERMINT LOUNGE, located at 4306 SAN PEDRO, SAN ANTONIO, Bexar County, Texas . . . .”

The evidence introduced in support of appellant’s guilty plea consisted of several statements by witnesses, all of whom were employees of the Peppermint Lounge in San Antonio. These witnesses stated that while they were working at the Peppermint Lounge on January 29, 1978, they observed the appellant inside the establishment with a handgun. An investigating police officer’s report, also admitted into evidence by stipulation, stated that the officer “responded to a shooting call at the Peppermint Lounge, 4306 San Pedro, (Liquor License # LB85025).” We conclude that the evidence is sufficient to support appellant’s conviction for unlawfully possessing a handgun.

In appealing his conviction for attempted murder (Cause No. 60,744), the appellant contends that the trial court should have sua sponte withdrawn his plea of guilty and entered a plea of not guilty because the evidence reasonably and fairly raised an issue as to his guilt. Appellant contends that the evidence introduced in support of his plea of guilty created a fact issue as to whether or not he shot the complainant in self-defense.

In Moon v. State, 572 S.W.2d 681 (Tex.Cr. App.1978), we held that the trial court is no longer required to sua sponte withdraw a plea of guilty and enter a plea of not guilty for the defendant when the defendant enters a plea of guilty before the court after waiving a jury, even if evidence is adduced that either makes the defendant’s innocence evident or reasonably and fairly raises an issue as to his guilt. Even if the rule were otherwise, the evidence in the present case would not warrant a withdrawal of appellant’s plea of guilty because it does not reasonably and fairly raise an issue of appellant’s guilt. The witnesses’ statements introduced into evidence by stipulation of the parties clearly show that appellant was the aggressor in that he drew his weapon and fired it at the complainant without provocation. We conclude that, based on the evidence, the trial court did not err by failing to sua sponte withdraw appellant’s plea of guilty and enter for him a plea of not guilty. Appellant’s contention is overruled.

Lastly, in Cause No. 60,745, appellant was indicted for the offense of attempted burglary of a habitation and the stipulated evidence introduced in support of appellant’s plea of guilty to this indictment was clearly sufficient under the provisions of Article 1.15, Vernon’s Ann.C.C.P. to support a conviction for that offense. The trial court however, for a reason unknown to us, convicted the appellant of burglary of a habitation, a first-degree felony, and assessed his punishment at 25 years’ confinement. This was clearly error, but not such as would require a reversal of this conviction.

Where this Court has the necessary data and evidence before it for reformation, the judgment and sentence may be reformed on appeal. Joles v. State, 563 S.W.2d 619 (Tex.Cr.App.1978). The judgment in the present case can be reformed from the information we have in the record before us; accordingly, the judgment is reformed to read “Attempted Burglary,” to conform to the indictment and proof. Teamer v. State, 557 S.W.2d 110 (Tex.Cr. App.1977); Harris v. State, 471 S.W.2d 390 (Tex.Cr.App.1971). Since the trial court assessed punishment in excess of the maximum punishment for the offense of attempted burglary, a second-degree felony, we remand this cause for the sole purpose of the reassessment of punishment by the court.

The judgments of conviction in Cause Nos. 60,740-60,744 are affirmed; we remand Cause No. 60,745 (trial docket No. 78-CR-1096) for the proper assessment of punishment.

It is so ordered.

      . All docket number references are to those assigned by Thomas Lowe, Esq., Clerk of the Court of Criminal Appeals.

      . The following periods of confinement were assessed by the court in each case: Cause No. 60,740—25 years; Cause No. 60,741—10 years; Cause Nos. 60,742 and 60,743—25 years in each case; Cause No. 60,744—20 years; and, Cause No. 60,745—25 years.

      . The stipulated evidence showed that after hearing “what sounded like glass breaking,” the complainant’s neighbor looked outside, observed the appellant at the complainant’s house crouching beneath a broken glass window, and called the police. When appellant was apprehended shortly thereafter, he admitted to the arresting officer that he broke the window. The complainant’s affidavit established that she was in control of the premises in question and did not consent to the actions of the appellant.


author: DALLY, Judge. PHILLIPS, J., CLINTON, Judge,

text:
    Gary Robertson HAZEN v. Hon. Perry D. PICKETT, Judge.
    No. 60758.
    Court of Criminal Appeals of Texas, En Banc.
    June 6, 1979.

      Carl Steckelberg, Midland, for appellant.
    Vern F. Martin, Dist. Atty. and Timothy Ann Sloan, Asst. Dist. Atty., Midland, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

DALLY, Judge.

This is an original proceeding in which the petitioner asks this Court to issue a writ of mandamus ordering the Hon. Perry D. Pickett, Judge of the 142nd District Court of Midland County to dismiss the indictment in Cause No. 6527 which is now pending against the petitioner in the 142nd District Court. The petitioner seeks his discharge and to have the prosecution against him for aggravated assault forever barred under the provisions of the Speedy Trial Act. Art. 32A.02, V.A.C.C.P.

We recently allowed the filing of a petition for writ of mandamus in Ordunez v. Bean, 579 S.W.2d 911 (Tex.Cr.App.1979) and our holding in that case is controlling in this instance. In Ordunez v. Bean, supra, the petitioner sought to have an indictment which was pending against him set aside; he alleged the State had failed to comply with the requirements of the Speedy Trial Act. Chapter 32A, V.A.C.C.P. In that case we held that Ordunez had not met either part of the traditional two-step test, the proof of which is necessary to obtain relief by writ of mandamus. See State ex rel. Vance v. Routt, 571 S.W.2d 903 (Tex.Cr. App.1978).

One of the steps is to demonstrate that no other adequate remedy at law is available. In Ordunez it was said appeal is available to the petitioner in the event of his conviction to test any asserted denial of his right to a speedy trial either in violation of statutory or constitutional rights.

We also pointed out in Ordunez that the Supreme Court of the United States has held in United States v. McDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978) that a defendant may not take an interlocutory appeal from the federal district court’s pretrial order denying a motion to dismiss because of an alleged violation of his right to a speedy trial. The Supreme Court in McDonald stated:

“Allowing an exception to the rule against pretrial appeals in criminal cases for speedy trial claims would threaten precisely the values manifested in the Speedy Trial Clause.”

We now hold that since the petitioner has an adequate remedy by appeal if he is convicted he has not demonstrated that he is entitled to relief by writ of mandamus; the relief sought is denied.

PHILLIPS, J.,

dissents for the reasons set out in his concurring and dissenting opinion in Ordunez v. Bean, supra.

CLINTON, Judge,

concurring.

Given my construction of the so-called Texas Speedy Trial Act, Ordunez v. Bean, 579 S.W.2d 911 (Tex.Cr.App.1979), petitioner is not entitled to relief by writ of mandamus for the simple reason that the State announced ready for trial at the first opportunity presented before expiration of 120 days of commencement of this felony criminal action. Specifically, at a docket call on October 25, 1978 the State announced ready for trial. The effective date of the Act is July 1,1978, and it is on that date that time limits prescribed by Article 32A.02, V.A.C. C.P., began to run, Wade v. State, 572 S.W.2d 533 (Tex.Cr.App.1978). October 25 is less than 120 days from July 1 and from the announcement of the State that it was ready for trial, without more, the State must be considered in fact ready for trial. As I view it, that is all the Speedy Trial Act requires.

Accordingly, I concur in denial of relief sought.

ROBERTS, J., concurs.

      . The announcement of ready was not contemporaneously challenged by appellant so the trial court was not called on to determine whether in fact the State was ready to go to trial. See my concurring opinion in Ordunez v. Bean, supra, n. 10.


text:
    James McGree PATTERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 61167.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 6, 1979.
    Donald W. Bankston, Houston, for appellant.

      Carol S. Vance, Dist. Atty., Michael C. Kuhn and Candelario Elizondo, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for possession of a firearm by a felon. The punishment is imprisonment for ten years.

The appellant asserts that his conviction here constitutes double jeopardy and the evidence is insufficient to support the conviction.

The appellant was arrested and found in possession of a bag of marihuana and a pistol. He was charged in a two-count indictment with the offenses of possession of marihuana and possession of a firearm by a felon. Before a jury was impaneled and sworn the State elected to proceed on the count for possession of marihuana; the appellant was convicted of that offense. The appellant was reindicted for the offense of possession of a firearm by a felon and brought to trial. The appellant’s plea of jeopardy in the latter proceeding was overruled by the trial court.

The appellant’s contention that his conviction for the offense of possession of a pistol was barred by the doctrine of carving is without merit. The possession of the pistol and the possession of the marihuana were separate acts in violation of separate statutes. He could properly be convicted for both offenses. See Frazier v. State, 480 S.W.2d 375 (Tex.Cr.App.1972); McMillan v. State, 468 S.W.2d 444 (Tex.Cr.App.1971); Uribe v. State, 573 S.W.2d 819 (Tex.Cr.App. 1978).

Appellant also urges that the court erred in overruling his special plea of double jeopardy. He says the State was pre-eluded from further prosecution of the charge of possession of the pistol because the State, when it chose to proceed on the marihuana count in the first indictment, in effect abandoned the pistol charge. The State elected to proceed only on the count charging possession of marihuana prior to the time that the jury was sworn; jeopardy did not attach insofar as the count charging possession of a firearm by a felon was concerned. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). The appellant’s subsequent trial for possession of a firearm by a felon did not subject him to double jeopardy. See Vardas v. State, 518 S.W.2d 826 (Tex.Cr.App.1975).

The appellant urges that the evidence is insufficient because it fails to show that he had previously been convicted of a crime of violence or threatened violence, an element of ' the offense. V.T.C.A. Penal Code, Sec. 46.05. We find the appellant’s contentions to be without merit since he waived a trial by jury and entered a plea of guilty and a stipulation of evidence. The stipulation was that:

“ . . .On November 25,1977 in Harris County, Texas I did unlawfully commit an offense in that I did intentionally and knowingly possess away from the premises where I lived at the time a firearm namely a pistol and prior to the possession I had been convicted of a felony involving an act of violence and threatened violence namely simple kidnapping on June 15, 1964 in the thirtieth judicial District Court of Vernon Parish Louisiana in Cause No. 15,559.”

The stipulated evidence is sufficient to support the plea of guilty. Moreover? the trial court expressly limited the appellant’s right on appeal to the double jeopardy issue. See Art. 44.02, V.A.C.C.P. The grounds of error pertaining to the sufficiency of the evidence even if subject to appellate review are without merit.

The judgment is affirmed.

      . It would appear that these two counts were improperly joined in the indictment since the offenses were not violations of Title VII of the Penal Code. Art. 21.24, V.A.C.C.P.; V.T.C.A. Penal Code, Sec. 3.01 et seq.


text:
    Ex parte Robert Charles WINFREY.
    No. 61452.
    Court of Criminal Appeals of Texas, En Banc.
    June 6, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is a post-conviction application for a writ of habeas corpus. The convicting court has made the following findings of fact and conclusions of law:

“FINDINGS OF FACT
1. The Petitioner was convicted upon his plea of not guilty to the felony offense of murder [with malice] and was sentenced to Life in the Texas Department of Corrections. * * * * * *
3. Prior to trial, a hearing was held to determine whether Petitioner was competent to stand trial.
4. At the conclusion of the competency hearing the jury was given the following instructions to determine Petitioner’s competency:
By ‘insane’ or ‘insanity’ is meant inability at this time by the Defendant to understand the difference between right and wrong and inability in mind to understand and appreciate the nature of the act charged against him in the indictment and the consequences thereof, and inability of the defendant in mind to make a rational defense concerning said act or offense.
Now if you believe from a preponderance of the evidence that the Defendant at this time is in such mental condition that he does not know right from wrong and the nature and consequences of his act, and that he is unable to advise and assist his attorney in preparing a rational defense to the offense with which he is charged, you will find him insane at the present time, and so state in your verdict.
5. That pursuant to the foregoing charge, the jury found that the Petitioner was presently sane or competent to stand trial.
CONCLUSIONS OF LAW
1. The charge to the jury was fundamentally erroneous inasmuch as it presented an improper standard for determining Petitioner’s competency.
2. The charge to the jury was fundamentally erroneous because it encompassed a M’Naughton standard for determining Petitioner’s competence to stand trial. Whether Petitioner knew the difference between right and wrong and whether he understood and appreciated the nature of the act charged against him had no relevance to the issue of whether Petitioner was competent to stand trial.
3. The charge to the jury was fundamentally erroneous in that it totally omitted the proper standard to determine Petitioner’s competency. The proper standard for a competency determination is (1) whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and (2) whether the defendant has a rational as well as factual understanding of the proceedings against him.
4. The charge to the jury is identical to that in Ex parte Long, 564 S.W.2d 760 (Tex.Crim.App.1978), wherein relief was granted on an application for habeas corpus.”

These findings of fact and conclusions of law are correct.

If the petitioner was incompetent when he was tried for murder with malice, he has been deprived of liberty without due process and due course of law. Ex parte Long, 564 S.W.2d 760 (Tex.Cr.App.1978); Ex parte Hagens, 558 S.W.2d 457 (Tex.Cr. App.1977). If he was not incompetent, he was not deprived of those rights. The erroneous charge to the jury has left the issue unresolved. In Brandon v. State (Tex.Cr.App., No. 59,348, April 25, 1979), we held that where there had not been a constitutionally adequate competency hearing, the appropriate remedy would be to remand the case for further proceedings. Those proceedings should determine if it is possible to conduct a nunc pro tunc competency hearing and, if it is, to hold such a hearing following the present version of Article 46.02, V.A.C.C.P.

If it is not possible to make such a retrospective determination of the applicant’s competency in July, 1970, or if the petitioner is found to have been incompetent when he was tried in July, 1970, then he must have a new trial, and he shall remain in the custody of the Sheriff of Galveston County to answer the indictment in this cause. If the petitioner is not found to have been incompetent, his sentence shall remain in effect.

The petitioner shall be remanded to the custody of the Sheriff of Galveston County. The trial court shall conduct the hearing within 90 days from the issuance of our mandate, and may make further orders in accordance with this opinion.

It is so ordered.

      . Actually, Winfrey is the applicant. See V.A.C.C.P., Article 11.13.

      .There actually is a slight difference in wording, but the charges are the same in substance.

      . United States Constitution, Amendment XIV.

      . Texas Constitution, Article I, Section 19.


author: ROBERTSON, Justice.

text:
    John R. BRICE, Appellant, v. Mary P. BRICE, Appellee. J. E. HARGROVE, Appellant, v. The CITY OF GARLAND, Texas, Appellee.
    Nos. 22729, 22735.
    Court of Civil Appeals of Texas, Dallas.
    Jan. 25, 1979.

      S.L. Lewis, Dallas, for appellant in No. 22729.
    G. R. Barragan, Dallas, for appellee in No. 22729.
    Edith L. James, Dallas, for appellant in No. 22735.
    Richard P. Johnson, Asst. City Atty., Garland, for appellee in No. 22735.
    Before GUITTARD, C. J., and ROBERTSON and STOREY, JJ.
   ROBERTSON, Justice.

This opinion concerns two separate motions in different cases filed under Tex.R. Civ.P. 21c. Since both motions raise the same question, we will address them simultaneously. Petitioner John R. Brice seeks an extension of time for filing a transcript and petitioner J. E. Hargrove asks for an extension for filing a transcript and a statement of facts. We hold that neither petitioner has given a “reasonable explanation” of his need for an extension of time. Accordingly, we deny both motions.

Tex.R.Civ.P. 21c(1) states:

An extension of time may be granted for late filing in a court of civil appeals of a transcript, statement of facts . . ., if a motion reasonably explaining the need therefor is filed within fifteen (15) days of the last date for filing as prescribed by applicable rule or rules. [Emphasis added.]

The term “reasonably explaining” means any plausible statement of circumstances indicating that the failure to file within the sixty-day period was not deliberate or intentional, but was the result of inadvertence, mistake or mischance. Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex.1977); Shepard v. Shepard, 572 S.W.2d 86 (Tex. Civ.App.—Houston [1st Dist.] 1978, writ ref’d n. r. e.). These cases reveal that each motion under Rule 21c rests on its own facts. Petitioner has the burden to reasonably explain the need for an extension. Hildyard v. Fannel Studio, Inc., 547 S.W.2d 332 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.).

In the Brice case the transcript was due in this court on December 15, 1978. Brice filed his request for the transcript with the district clerk on December 14, 1978, the transcript was delivered to his attorney on December 29, 1978, and tendered to this court on the same day, but was not accepted because the sixty-day period for filing under Tex.R.Civ.P. 386 had expired. A Rule 21c motion to extend time was filed on January 2, 1978, the last possible day for such motion. As his reason for late filing, movant states that he relied upon the statement of one of the deputies of the district clerk that the proper time for filing the transcript was January 3, 1978. He contends that he relied upon this statement “because of the familiarity and experience of the personnel in the office of the district clerk of Dallas County, Texas”. Movant does not state when he received this misinformation from the clerk, and it is possible that it may have been received after the sixty-day period had already expired. Reliance upon a person whose official duties do not include informing attorneys of the proper appellate time limits, as opposed to relying on information available from the petitioner’s own files, is not the result of inadvertence, mistake or mischance. See Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950); Hanks v. Rosser, 378 S.W.2d 31 (Tex.1964). In addition, movant does not offer any explanation why he made no request for the transcript until the fifty-ninth day. Consequently, the motion does not “reasonably explain” the need for an extension.

In the second case, the judgment became final on August 31,1978. Hargrove then requested a transcript and also ordered a statement of facts on October 11, 1978. The record was due on December 22, 1978. This Rule 21c motion to extend was filed on January 4, 1979, and the record has been tendered. In support of his motion, movant states that he was involved in negotiations for the sale of his business (the subject of the lawsuit) and his attorney was “preoccupied” with the Christmas holidays, other litigation, and this lawsuit. Alleging mere negotiations for the sale of a business, without more, is not a reasonable explanation. Likewise, preoccupation with other affairs is not a reasonable.explanation. Otherwise, any excuse, no matter how flimsy, would be sufficient for postponement of the appeal. Obviously, this was not the intent of Rule 21c, and, therefore, we hold that petitioner Hargrove has failed to reasonably explain his need for an extension of time.

Motions denied.


author: CARVER, Justice.

text:
    PRESTONVIEW COMPANY, LTD., Appellant, v. STATE MUTUAL INVESTORS, Appellee.
    No. 19665.
    Court of Civil Appeals of Texas, Dallas.
    March 12, 1979.
    Rehearing Denied April 12, 1979.

      Linda S. Aland, L. Vance Stanton, Strother, Davis & Stanton, Dallas, for appellant.
    Schuyler B. Marshall, Nancy L. Benoit, Thompson, Knight, Simmons & Bullion, Dallas, for appellee.
    Before AKIN, ROBERTSON and CARVER, JJ.
   CARVER, Justice.

This is an appeal by a partnership from a summary judgment granted to the lender in a usury case. The lawsuit concerns three parties: Prestonview, a partnership; State Mutual, a lender; and Crawford-Strauss Properties, a corporation. The appellant partnership sued the appellee lender claiming that the lender charged a rate of interest exceeding ten percent per year on a loan. The partnership argued that the loan was actually made to the partnership, and not to the corporation as stated in the loan documents. The partnership alleged that title to the real property which served as security for the loan was in the partnership’s name at the time the loan was funded. Appellant reasons that since the lender had constructive notice through the recording statutes that title to the security was in the partnership’s name, the lender knew it was making a loan to the partnership. Appellant claims, therefore, that appellee was guilty of usury since the rate of interest on the loan exceeded ten percent per year. The loan documents, however, are regular on their face and show that the loan was made to the corporation, not to the partnership. Accordingly, we affirm the trial court and hold that the constructive notice given by the recording statute, Tex.Rev.Civ.Stat. Ann. art. 6646 (Vernon 1969), is insufficient to charge the lender with usury.

The relevant facts are undisputed. Crawford-Strauss Properties, Inc., the corporate borrower, sought both interim and permanent financing to acquire real property and to erect improvements on the property. It reached an agreement with State Mutual, the lender, whereby $2,600,000 was to be advanced to Crawford-Strauss as interim financing. Crawford-Strauss signed a promissory note bearing 10⅛ percent interest per year and agreed to acquire the real property as a part of the security for the loan. Later, State Mutual executed a written commitment to Crawford-Strauss for permanent financing at the same 10⅛ percent interest rate. In January and February of 1971, Crawford-Strauss acquired title to the real property and commenced improvements. Later, Crawford-Strauss by deed dated April 16, 1971, and recorded on May 20, 1971, conveyed the property to Prestonview, the partnership. State Mutual had no actual knowledge of this conveyance and at all times thought it was lending the money to Crawford-Strauss. More than one year later, in June of 1972, State Mutual closed the permanent financing by advancing funds to Crawford-Strauss. Thus, at the date of closing and for approximately one year preceding the closing, the partnership, not Crawford-Strauss, held title to the property which served as collateral for the loan from State Mutual to Crawford-Strauss. The title insurance policy, however, and all loan documents recited that the corporation held title.

An attorney, employed by Crawford-Strauss, testified by deposition that he participated in the closing of the permanent financing in ignorance of the earlier deed to the partnership. When he learned of the earlier deed, the attorney did not tell State Mutual, but “fixed” it by getting a deed from the partnership to Crawford-Strauss. When asked if he had a reason for not informing State Mutual that Crawford-Strauss did not hold title to the collateral on a $2,600,000 loan, he responded:

Well, you must understand we had just finished closing a loan, as I said, in good faith with all of us having thought that the record title stood in Crawford-Strauss Properties, Inc. You know, I felt like it was my job to correct that if possible from everybody’s point in [sic] view, including the title company without a gigantic hassle. At that point in time, it was important that the partnership have the loan and close from interim into permanent, and we had just finished doing that and I was reluctant to pass on to in-house counsel that the title didn’t even reside in the entity to which he had thought he had made his loan.

Appellant argues that the loan was usurious because Prestonview held record title to the property used as collateral for the loan. In this respect, it asserts that the lender knew that the actual borrower was Preston-view since the lender was charged with constructive notice of the true owner of the property by our recording statute. Tex. Rev.Civ.Stat.Ann. art. 6646 (Vernon 1969) provides:

The record of any grant, deed or instrument of writing authorized or required to be recorded, which shall have been duly proven or acknowledged for record and duly recorded in the proper county, shall be taken and held as notice to all persons of the existence of such grant, deed or instrument. [Emphasis added.]

We cannot agree with appellant’s contention. First, the undisputed summary judgment evidence, including the loan documents, proves that Crawford-Strauss was the borrower. Second, the lender’s constructive notice of title in the partnership is not sufficient to make the partnership the borrower. Even though a lender has constructive notice of the name of the record owner of the collateral, this is not equivalent to actual notice of the true borrower and is insufficient to charge the lender with the intent to assess usurious interest.

As this court stated in American Century Mortgage Investors v. Regional Center, Ltd., 529 S.W.2d 578, 583 (Tex.Civ.App.—Dallas 1975, writ ref’d n. r. e.):

Usury is a matter of intention. Unless the loan papers show on their face an intention to charge interest at a greater rate than permitted by law, the burden is on the party pleading usury to show the existence of some agreement, device, or subterfuge to charge usury and that both parties had that purpose in contemplation. . . . Even though the borrower intended to pay more interest than permitted by law, the transaction is not usurious unless the lender also supposed and intended it to be so. . Failure of the lender to make an investigation which might have disclosed facts establishing payments in excess of legally permitted interest is not equivalent to an intention to charge usury, (citations omitted)

Appellant presented no evidence that appel-lee intended to charge usurious interest. Since there is no genuine issue of fact as to appellant’s allegation of usury, the trial court’s granting of summary judgment is correct.

If Prestonview was the “actual borrower,” as claimed, then this record reflects a deliberate concealment from State Mutual of such fact in the original application for the loan, in the execution of the note and deed of trust for interim loan, and in the execution of the permanent note and deed of trust. This concealment was maintained when the borrower’s attorney “fixed” the title to keep the proceeds of the permanent loan. These actions not only negate the existence of intent by State Mutual to exact usury, but also deprive Prestonview of a “reward”, i. e., the right to assert a cause of action generated out of its own deception. American Century Mortgage Investors v. Regional Center, Ltd., supra.

Affirmed.


author: AKIN, Justice.

text:
    METROFLIGHT, INC., Appellant, v. Surry SHAFFER and the Shaffer Insurance Agency, Appellee.
    No. 19636.
    Court of Civil Appeals of Texas, Dallas.
    March 16, 1979.
    Rehearing Denied April 12, 1979.
    Randall A. Hopkins, Baker & Botts, Houston, for appellant.
    William N. Hamilton, Stephen L. Bas-kind, Vial, Hamilton, Koch, Tubb, Knox & Stradley, Dallas, for appellee.
    Before GUITTARD, C. J., and AKIN and ROBERTSON, JJ.
   AKIN, Justice.

On this appeal from a summary judgment, the principal question is whether the appellant’s cause of action is barred because appellant asserted facts in this suit which were inconsistent with facts asserted against another party in a prior suit, and appellant accepted benefits in settlement of that prior suit. Appellant Metroflight previously sued its insurance carriers in federal court claiming insurance coverage. Metro-flight dismissed the federal suit after it accepted an out of court settlement. Metrof-light then brought the present suit against its insurance agent, appellee Shaffer, in state court for failure to obtain adequate insurance. Shaffer was granted a summary judgment against Metroflight based upon the election of remedies doctrine. We hold that the trial court properly granted summary judgment in favor of Shaffer because Metroflight is barred by the doctrine enunciated in Lomas & Nettleton Co. v. Huckabee, 558 S.W.2d 863 (Tex.1977) (per curiam). Accordingly, we affirm.

I. Metroflight v. Southern Marine and Argonaut — The Federal Suit.

In 1974, an airplane crashed which was owned by appellant Metroflight, a common carrier airline. Metroflight instituted a declaratory judgment action in federal court in 1974 against Southern Marine and Aviation Underwriters, Inc. and Argonaut Insurance Company, the companies from which Metroflight’s insurance agent had secured insurance for Metroflight. Appellee Shaffer, Metroflight’s insurance agent, had the responsibility of counseling Metroflight with respect to its insurance requirements and for securing Metroflight’s insurance policies. In 1972, Shaffer advised Metro-flight that new insurance policies would be financially desirable, and he chose Southern Marine and Argonaut to be the insurance underwriters after he had prepared specifications and had obtained competitive bids. In contrast to the insurance coverage held by Metroflight prior to 1972, the new insurance policies recommended by Shaffer rendered part of Metroflight’s air operations uninsured because of a certain pilot endorsement. This pilot endorsement, which was not contained in the specifications prepared by Shaffer, excluded from coverage any loss unless the pilot had attended specific flight training schools within the preceding ninety (90) days and was so listed with the insurer. This insurance policy was renewed in 1973, but Shaffer never informed Metroflight that the pilot endorsement exclusion would leave part of their operations uninsured, and Metroflight did not learn of the lack of coverage until after the crash. A few days after the crash in 1974, Metroflight hired a law firm to investigate whether the insurance procured by Shaffer provided coverage for the crash, and within six weeks after the crash, Me-troflight brought a declaratory judgment action in federal court against its insurance carriers, Southern Marine and Argonaut. This federal suit was brought as a result of Shaffer’s representations to Metroflight that the insurers had assured Shaffer that the insurers would not deny coverage by asserting the pilot endorsement.

In its pleading in the federal suit, Metro-flight claimed that the insurance policy covered the losses sustained by the crash. Me-troflight also alleged that the insurers should be estopped from asserting the pilot endorsement as a defense because the insurers had waived the exclusion due to factual knowledge possessed by the insurers prior to the loss. Essentially, Metroflight pleaded insurance coverage. In response, the insurance carriers denied that Metroflight was entitled to any relief under the insurance policy. The insurance carriers argued that coverage was excluded by the pilot endorsement because the pilot involved in the crash had not met the requirements of the endorsement.

In 1976, Metroflight and the insurance companies executed a settlement agreement, and the federal suit was dismissed with prejudice. This settlement was accomplished after lengthy and detailed pretrial discovery which indicated: (1) that Metroflight was indeed operating outside the scope of the pilot endorsement; (2) that the insurers had not waived this endorsement; and (3) that they were not estopped from asserting it. The settlement agreement provided that Southern Marine and Argonaut would pay eighty percent of all claims against Metroflight arising from the crash. The payments by the insurance companies were termed “loans” to Metroflight; however, Metroflight was obligated to pay back these loans only if it recovered a judgment against Shaffer in a subsequent suit. The settlement agreement stipulated, therefore, that Metroflight would sue Shaffer for Shaffer’s alleged failure to secure appropriate insurance coverage, and if it recovered damages from Shaffer, Metroflight would then use the proceeds to repay the loans from Southern Marine and Argonaut. In effect, the insurance companies partially paid the claims and were subrogated to Metroflight’s claim against Shaffer.

II. Metroflight v. Shaffer — The State Suit.

In February of 1977, Metroflight filed this action against Shaffer in state court. Metroflight based its lawsuit upon the following causes of action: (1) breach of duty by an agent for various omissions and errors; (2) breach of contract; (3) negligence; (4) breach of fiduciary duty; and (5) violation of the Texas Deceptive Trade Practices-Consumer Protection Act. Shaffer’s three defenses on which the trial judge granted summary judgment included: (1) the election of remedies doctrine; (2) the two-year statute of limitations; and (3) Me-troflight’s lack of consumer status under the Deceptive Trade Practices Act. We address only the election of remedies question since that issue is dispositive of this ease.

Metroflight asserts five arguments in support of its claim that the trial judge erred in holding that this suit was barred by the settlement in the federal suit: (1) the alleged inconsistent remedies in the federal and state suits do not arise from the same state of facts, and thus, the election of remedies doctrine is inapplicable; (2) Shaffer was not a party to the federal declaratory judgment action nor was he a party to the contract sought to be enforced therein; (3) the state suit, in contrast to the federal action, concerned the assertion of distinct causes of action against different persons arising out. of different transactions; (4) Metroflight’s election was not an informed election in view of Shaffer’s misrepresentations; and (5) the election of remedies doctrine is an equitable doctrine which cannot be used to aid wrongdoers, such as Shaffer. We conclude, however, that the per curiam opinion of the supreme court in Lomas & Nettleton Co. v. Huckabee, 558 S.W.2d 863 (Tex.1977), is controlling here and necessitates an affirmance of the summary judgment on the ground that Metroflight’s suit is barred by the settlement of the federal suit.

III. Lomas and Nettleton v. Huckabee.

The facts in Lomas & Nettleton v. Huckabee are analogous to the facts here, and since this case rests upon the Huckabee opinion, a discussion of Huckabee is necessary. Plaintiff Huckabee purchased a fire insurance policy from American States Insurance that covered loss to his realty as well as loss to his personal possessions. This policy was sent to Lomas & Nettleton, but they refused to accept the policy although funds were available in Huckabee’s escrow account to pay the premium. Lo-mas & Nettleton returned the policy to American States for cancellation and then, through its own agent, purchased a fire insurance policy with Republic Insurance covering the realty but not Huckabee’s personalty. Thereafter, a loss was sustained by fire; the insurance companies denied coverage, and Huckabee sued them. American States filed a third-party action against Lomas & Nettleton asserting that its policy was not in effect because Lomas & Nettleton had refused to accept it and that if it had any liability to Huckabee, it was entitled to be indemnified by Lomas & Nettleton. Huckabee settled with Republic Insurance for one-half of the loss sustained to the realty and dismissed Republic. Next, Huckabee settled with American States for another one-half of the loss to his realty, and for eighty percent of the loss to his personalty. The latter settlement was in the nature of a “loan” to Huckabee to be repaid only if Huckabee was successful in recovering against Lomas & Nettleton. After settlement, Huckabee dismissed American States with prejudice and then amended his petition to include Lomas & Nettle-ton, alleging that Lomas & Nettleton wrongfully refused to accept the tendered American States policy, and thus, was liable to Huckabee for the loss of his personalty. The trial court sustained a motion for summary judgment in favor of Lomas & Net-tleton on the ground that by suing the insurance companies and accepting settlements, Huckabee had elected his remedy and was barred by the election of remedies doctrine from asserting a claim against Lomas & Nettleton for loss of his personalty. The Waco Court of Civil Appeals, Huckabee v. Lomas & Nettleton Co., 550 S.W.2d 371 (Tex.Civ.App. — Waco 1977), reversed on the ground that the election of remedies doctrine did not apply because the causes of action asserted against Lomas & Nettleton and American States were distinct causes of action arising out of independent transactions with different entities. 550 S.W.2d at 373.

The supreme court reversed the Waco Court of Civil Appeals and affirmed the trial court on the ground that the election of remedies doctrine applied. Lomas & Nettleton Co. v. Huckabee, 558 S.W.2d 863 (Tex.1977). The supreme court reasoned that the transactions were “interconnected as a part of the same effort by the Hueka-bees to secure insurance on their household personalty’’, and thus, the transactions between Huckabee and American States on the one hand, and between Huckabee and Lomas & Nettleton on the other, were not independent. 558 S.W.2d at 865. It was upon this analysis that the supreme court distinguished its opinion in Custom Leasing, Inc. v. Texas Bank & Trust Co., 491 S.W.2d 869 (Tex.1973). The supreme court’s per curiam opinion in Huckabee concluded that Huckabee had pursued inconsistent and repugnant remedies; the suit and settlement with American States affirmed coverage, whereas, the suit against Lomas & Nettle-ton admitted non-coverage. In the present case, Metroflight asserted coverage in the federal court suit and obtained a substantial settlement in that suit. Under the Huckabee rationale, that assertion was inconsistent with this action against Shaffer for breach of his fiduciary duty and contract in failing to obtain the coverage requested by Metroflight. The same fact, insurance coverage, was both affirmed and denied by Metroflight. Consequently, under the rule in Huckabee, we must reluctantly characterize the two allegations as being inconsistent. Since the facts asserted in federal and state court were inconsistent, and since Metroflight received valuable consideration from their settlement agreement of the federal suit, we are constrained to hold that appellant is barred from suing Shaffer for failing to obtain the required insurance coverage. Lomas & Nettleton Co. v. Huckabee, 558 S.W.2d 863 (Tex.1977) (per curiam).

IV. Election of Remedies.

Our reluctance to follow Huckabee has prompted us to take a careful look at that decision and the election of remedies doctrine. Metroflight first points out that pri- or to Huckabee, the Texas Supreme Court emphasized that the scope of the election of remedies doctrine should not be broadened. In Custom Leasing, Inc. v. Texas Bank & Trust Co., 491 S.W.2d 869, 871 (Tex.1973), the court stated that “the doctrine of election of remedies is not a favorite of equity and that its scope should not be extended.” The court has also referred to the election of remedies doctrine as “ ‘a harsh, and now largely obsolete rule . . . Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377, 393 (1945), quoting Friederichsen v. Renard, 247 U.S. 207, 312, 38 S.Ct. 450, 452, 62 L.Ed.2d 1075, 1083 (1918). [Emphasis added].

Metroflight makes a strong argument that the traditional election of remedies doctrine should have no application to the present suit and asserts that neither the facts in this case nor the facts in Huckabee called for an application of that doctrine. It points out that an application of the election of remedies doctrine requires that there must actually exist two valid but inconsistent remedies, and the remedy in question must be inconsistent with the other previously invoked. White v. Bell, 290 S.W. 849, 851 (Tex.Civ.App.— Waco 1927, writ ref’d); United States v. Oregon Lumber Co., 260 U.S. 290, 43 S.Ct. 100, 67 L.Ed. 261 (1922) (Brandéis, J., dissenting). It relies on Texas cases holding that the election of remedies doctrine “does not apply unless the claimant actually has two valid and available remedies at the time he makes his election.” Poe v. Continental Oil & Cotton Co., 231 S.W. 717, 719 (Tex.Comm’n.App. 1921, jdgmt. adopted). Thus it is said that the claimant’s “supposition that he had a particular remedy and his effort tó enforce it is immaterial, and does not constitute an election, unless the remedy in fact existed.” Bandy v. Cates, 97 S.W. 710, 711 (Tex. Civ.App.1906, writ ref’d); see Schenck v. State Line Telephone Co., 238 N.Y. 308, 144 N.E. 592, 593 (1924) (per Cardozo, J.). The fact that a plaintiff may sue thinking that he has a remedy which in fact or in law does not exist, and therefore his suit fails, has been held not to be an election under the election of remedies doctrine. Linz v. Eastland County, 39 S.W.2d 599, 606 (Tex.Comm’n.App.1931, holding approved); Snow v. Alley, 156 Mass. 193, 30 N.E. 691, 692 (1892) (per Holmes, J.)

We recognize the force of the argument that if a plaintiff realizes in his first suit that he has no remedy, but accepts from a defendant a settlement based upon business considerations, as the insurance companies obviously did with Me-troflight here, then the above rules should prevent the application of the election of remedies doctrine. From this point of view, it is immaterial that the plaintiff alleged inconsistent facts in his first suit if two inconsistent remedies did not actually exist. Schenck v. State Line Telephone Co., 238 N.Y. 308, 144 N.E. 592, 593 (1924) (per Cardozo, J.). For example, here it became apparent to Metroflight after pre-trial discovery in federal court that Shaffer’s representations that the insurers had waived the pilot endorsement were untrue, and thus, there was no coverage under its policies. Consequently, no remedy actually existed under the policy, even though Metroflight received the benefit of the settlement. Likewise, we recognize that in Huckabee, the plaintiff mistakenly thought his policy covering his personalty was in effect and apparently discovered that this was not true after suit was filed and settled on the basis that both the plaintiff and the insurance company would pursue the real culprit.

From a policy viewpoint, Metroflight argues that the Huckabee decision is contrary to the general policy that the law should encourage settlement of disputes, and insists that the policy of encouraging settlements outweighs the policy considerations behind the procedural estoppel applied in Huckabee. Due to the uncertainty of litigation, we recognize the force of the argument that a party asserting inconsistent factual positions with respect to different parties should be permitted to effect a compromise of one of his claims, pursue the other to the extent of the difference, and then permit the settling defendant to be subrogated to the extent paid plaintiff. That course is not permitted by Huckabee as we understand it.

At the root of most cases applying the doctrine of the election of remedies is some element either of equitable estoppel or ratification. See generally Note, 11 Texas L.Rev. 218, 225 (1933); see also Hine, Election of Remedies, a Criticism, 26 Harv.L. Rev. 707, 708 (1913). For an equitable estoppel to exist, of course, there must be detrimental reliance on the part of the party asserting it. See Seaman’s Oil Co. v. Guy, 115 Tex. 93, 276 S.W. 424, 426 (1925). Ratification, in and of itself, is not the choice of a remedy although the choice of a remedy may be ratification. For example, a party may affirm a contract voidable for lack of capacity, without invoking any remedy whatever by ratifying the voidable contract. As Justice Cardozo observed, “Often what is spoken of in opinions as to a choice between remedies is in reality a choice of ‘an alternative substantive right.’ ” Schenck v. State Line Telephone Co., 238 N.Y. 308, 144 N.E. 592, 593 (1924), quoting U. S. v. Oregon Lumber Co., 260 U.S. 290, 307, 43 S.Ct. 100, 67 L.Ed. 261 (1922) (Brandeis, J., dissenting); see Annot., 6 A.L.R.2d 11, 23 (1949). Metroflight did not have two remedies available to it because there was no insurance coverage in view of the pilot endorsement. Thus, the traditional election of remedies doctrine as recognized by the above authorities does not apply here or in Huckabee.

It should be pointed out that Hucka-bee is not based on the satisfaction rule enunciated in Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703, 705 (1935), and restated in Slay v. Burnett Trust, 187 S.W.2d at 393. The satisfaction doctrine is predicated upon the theory that it would be manifestly unjust to permit a plaintiff double recovery for a single loss. See Deal v. Madison, 576 S.W.2d 409, 419-20 (Tex.Civ. App.—Dallas 1978, writ ref’d n. r. e.). In Huckabee, the supreme court did not even permit plaintiffs to recover the excess of their loss over the settlement they had received although the court of civil appeals had indicated that they could recover at least that amount.

V. Judicial Estoppel.

Neither can the Huckabee case be classified under the doctrine of judicial estoppel as ordinarily understood because the pleadings in the former suit were not under oath. The supreme court in Long v. Knox, 155 Tex. 581, 291 S.W.2d 292, 295 (1956) stated this doctrine as follows:

The doctrine of judicial estoppel is not strictly speaking estoppel at all but arises from positive rules of procedure based on justice and sound public policy. It is to be distinguished from equitable estoppel based on inconsistency in judicial proceedings because the elements of reliance and injury essential to equitable estoppel need not be present. “Under the doctrine of judicial estoppel ... a party is estopped merely by the fact of having alleged or admitted in his pleadings in a former proceeding under oath the contrary to the assertion sought to be made.” [citations omitted; emphasis added.]

It has likewise been held that it is not necessary that the party invoking this doctrine have been a party to the former proceeding. This doctrine was developed in the nineteenth century in Tennessee and was predicated upon the rationale that parties should not misuse the judicial system by taking inconsistent positions under oath in different proceedings. It has also been referred to as estoppel by oath. See Note, 11 S.W.L.J. 96 (1957); see also Sartain v. Dixie Coal & Iron Co., 150 Tenn. 633, 266 S.W. 313, 316—18 (1924). Since the doctrine is based upon these considerations, a defense to the application of the doctrine is to show that the prior sworn pleadings were based upon mistake or fraud. Johnson Service Co. v. Transamerica Insurance Co., 485 F.2d 164, 174-75 (5th Cir. 1973). This basis for the doctrine of judicial estoppel is not present here since Metroflight did not allege coverage in the federal suit under oath, but made the assertions of coverage mistakenly under belief that the insurers were estopped from asserting the pilot endorsement.

VI. The Huckabee Rationale.

The apparent rationale of Huckabee is not election of remedies in the traditional sense of a choice between two inconsistent remedies arising from the same state of facts. Rather it seems to be a species of judicial estoppel based on the principle that a party should not be permitted to abuse the judicial process by obtaining one recovery based first on affirming a certain state of facts, and then another recovery based on denying the same state of facts. See generally Johnson v. Bingham, 251 S.W. 529, 535 (Tex.Civ.App.—Galveston 1923), aff’d on other grounds, 265 S.W. 130 (Tex. Comm’n.App.1924, opinion adopted); Sartain v. Dixie Coal & Iron Co., 150 Tenn. 633, 266 S.W. 313, 318 (1924). According to Huckabee, since the purpose of the rule is not primarily to prevent unjust enrichment, it applies even though the sum of the two recoveries would not exceed the amount of the plaintiff’s loss. Its purpose is to make sure that judgments are rendered upon an accurate determination of the facts, an objective that is thought to be frustrated if a litigant is encouraged to change his view of the facts from one lawsuit to the next. According to this rationale, if a plaintiff is permitted to recover judgment against one party on the basis of an affirmative finding on a crucial fact issue and then reverses his position in order to recover another judgment based on a negative finding on the same issue, injustice has been done because one of the two fact findings must be wrong.

Huckabee also stands for the proposition that a settlement of the first claim is equivalent to a judgment. It assumes that just as a party ought not to be able to reverse his position on the facts after obtaining a judgment based on a particular allegation, neither should he be able to do so after he has obtained a settlement based on such an allegation. In each instance, he has obtained a benefit by using the judicial process to assert a particular factual premise, and if he subsequently obtains a judgment based on the opposite premise, that judgment would establish that the benefit first received was not one to which he was properly entitled. Acceptance of such a benefit seems to be regarded as equivalent to the oath ordinarily required for judicial estop-pel.

Application of the Huckabee rule is illustrated by Aetna Life Ins. Co. v. Bocanegra, 572 S.W.2d 355 (Tex.Civ.App.—San Antonio 1978, writ granted). Plaintiff in that case first filed a worker’s compensation claim alleging a job related injury. She received compensation for this claim. She then sued under a group health insurance policy which only covered non-occupational injuries. The court ruled that the plaintiff was es-topped to bring the second suit citing Huck-abee. The court explained that the Hucka-bee rule lacked the elements of reliance and injury required for an equitable estoppel and was “more a matter in the nature of a positive rule of procedure based on manifest justice.” 572 S.W.2d at 356.

Huckabee would not leave a party without remedy if he is genuinely uncertain about the existence of a crucial fact on which his rights depend. He may plead in the alternative under Rule 48 of the Texas Rules of Civil Procedure. Also, under Tex. R.Civ.P. 51, he may pray in the alternative for recovery against a second defendant in the event a crucial fact alleged in his claim against the first defendant is not true. He may then testify honestly concerning the facts as he understands them and accept whatever recovery the court allows after determining the true facts. In such a situation, unlike Huckabee and the present case, neither defendant is required to pay what a court ultimately determines he should not have been required to pay.

These considerations demonstrate that the election recognized in Huckabee is not an election between two inconsistent remedies available as a result of the same wrong (as an election between damages and restitution) or an election between two inconsistent rights arising simultaneously from different facts (as an election to take under a will property to which the devisee has an independent right). The inconsistency lies not in the remedy or in the right but in the allegation of facts on which both right and remedy depend. Consequently, under Huckabee, the parties to the successive suits may be different and the causes of action distinct, but the second suit is barred if the plaintiff must deny in the second suit a fact that he has affirmed in the first and has obtained a benefit from affirming. That fact here, as in Huckabee, is coverage of certain losses by certain policies of insurance.

This rationale for Huckabee may not be stated in detail in the per curiam opinion, but it must be considered in any proper evaluation of the decision in the light of authorities dealing with election of remedies. The soundness of the rule may be doubtful, and opposing policy arguments may be persuasive, but the decision must be taken as resolving the matter authoritatively for the purpose of this present case.

Affirmed.

      . The author made the following observation at the conclusion of his research on the election of remedies doctrine:
      The result of this review of the operation and history of the doctrine may be summed up in this way: The modern rule of election of remedies is a weed which has recently sprung up in the garden of the common law, its roots stretching along the surface of obi-ter dicta but not reaching the subsoil of principle. The judicial gardeners through whose carelessness it has crept in should be able to eliminate it, or at least to prevent its further growth. 26 Harv.L.Rev. at 719.


author: MURRAY, Justice.

text:
    UNITED STATES of America, Appellant, v. Maria T. MIRANDA, Appellee.
    No. 16173.
    Court of Civil Appeals of Texas, San Antonio.
    April 4, 1979.
    Jamie C. Boyd, U. S. Atty., Jeremiah Handy, Asst. U. S. Atty., San Antonio, for appellant.
    Klein & Barenblat, San Antonio, for ap-pellee.
   OPINION

MURRAY, Justice.

This is a garnishment case. Here, Maria T. Miranda, appellee, sued the United States, appellant, to garnish her ex-husband’s military retirement benefits to enforce a judgment for child support. The trial court entered judgment that appellee recover $1,510.24. This amount is not disputed by appellant.

That sole question presented by this case is whether military retirement pay is current wages for personal service and not subject to garnishment under Article 16 of the Texas Constitution. Section 28 of Article 16 provides, “No current wages for personal service shall ever be subject to garnishment.” Tex.Const. art. XVI, § 28.

We agree with the trial court that the military retirement benefits due the ex-husband are subject to garnishment under Texas law because they are not current wages for personal service. Appellant contends that the salary received by a retired member is not only paid to compensate for past services, but is also a means to assure his availability for future contingencies. Therefore, retirement pay should be considered for the purpose of garnishment in the same light as payments made to military members on active duty. We are not aware that only persons drawing military retirement pay are available for future contingencies. All able-bodied citizens are available whether they receive retirement pay or not.

Two Texas cases have held that retirement pay is not current wages for personal service under the Texas Constitution and is subject to garnishment. United States v. Wakefield, 572 S.W.2d 569 (Tex.Civ.App.—Fort Worth 1978, writ dism’d); United States v. Fleming, 565 S.W.2d 87 (Tex.Civ. App.—El Paso 1978, no writ). We agree with the following statement of the court of civil appeals in Wakefield:

Military retirement pay is based on the serviceman’s length of service and base pay upon retirement. It is not based on what the military perceives to be the present value of a retiree standing by for possible recall. The retirement benefits are paid for a period of time in which the retired serviceman was not recalled. Should he be recalled he would receive active duty pay instead of retirement pay. The retired serviceman receives retirement benefits because of his past military service, not because he is presently standing by waiting to be recalled. Therefore, the fact that he is standing by is not controlling and military retirement pay is not current wages under Texas law.

572 S.W.2d at 572.

The judgment of the trial court is affirmed.


text:
    TRANSCEIVER CORPORATION OF AMERICA, Appellant, v. RING AROUND PRODUCTS, INC., Appellee.
    No. 22800.
    Court of Civil Appeals of Texas, Dallas.
    April 10, 1979.
    Rehearing Denied May 1, 1979.
    J. Robert Fisher, Winstead, McGuire, Se-chrest & Trimble, Dallas, for appellant.
    Richard L. Jackson, Shuford, Jackson & Miller, Dallas, for appellee.
    Before AKIN, ROBERTSON and CARVER, JJ.
   AKIN, Justice.

This is a motion to compel our clerk to file an appeal. The sole question is the appealability of an order denying a motion to quash a post-judgment deposition under Tex.R.Civ.P. 621a and denying relief from a prior judgment rendered in 1971. In his motion to quash, appellant sought affirmative relief establishing that he had fully paid the judgment which appellee was seeking to collect. The order overruled the motion to quash and recited a finding that the prior judgment had not been satisfied, but did not specifically deny appellant’s affirmative relief. We hold that the trial judge’s order is final and thus appealable because it disposed of all the issues between the parties before the court by implication. Accordingly, we direct the clerk to file this appeal.

Appellee filed a notice under Tex.R.Civ.P. 621a to take a deposition to discover assets of appellant to satisfy a judgment taken against appellant in 1971. In response, appellant filed a motion to quash the deposition on the ground that the 1971 judgment had been satisfied and paid in full. Although denominated “Motion to Quash”, appellant prayed affirmatively that the court permanently enjoin the appellee from attempting to collect on the judgment and for declaratory relief that the judgment had been paid. The parties stipulated as to the admissibility of the documents of each party and stipulated that the facts contained in the exhibits were all the operative facts upon which the court could make its determination. After taking the record under advisement, the court denied the motion to quash and ordered the deposition to be taken. Appellant then filed this appeal.

Appellant contends that the order is ap-pealable because it finally determined the controversy between the parties, that is, whether the 1971 judgment had been satisfied. Appellee argues, however, that whether the deposition should be quashed is now moot since it has been taken and there is nothing for this court to determine. Ap-pellee further contends that the appellant should not be permitted to use a motion to quash as an independent suit for a declaratory judgment and for a permanent injunction. We cannot agree with appellee’s contentions.

The fact that the deposition has been taken does not make the appeal moot since other relief was sought by appellant and denied by the order from which appellant seeks to appeal. The issue raised by appellant’s motion to quash and his prayer for injunctive and declaratory relief was whether the 1971 judgment had been satisfied. The trial judge found this sole ultimate issue against appellant, and thus, in effect, disposed of appellant’s prayer for affirmative relief by necessary implication. North East Independent School District v. Aldridge, 400 S.W.2d 893, 897 (Tex.1966). This is true because whether appellant was entitled to affirmative relief and to have the motion to quash granted rested upon whether the 1971 judgment had been satisfied. No other issue was in controversy between the parties. As Chief Justice Alexander stated in Davis v. McCray Refrigerator Sales Corp., 136 Tex. 296, 150 S.W.2d 377, 378 (1941): “It is not essential that the judgment in express terms specifically dispose of each issue. That it does dispose of a particular issue may be inferred from other provisions thereof, provided such an inference follows as a necessary implication. Trammell v. Rosen, 106 Tex. 132, 157 S.W. 1161, 1162 (1913).” Here, when the trial judge found that the 1971 judgment had not been paid, which was the only issue between the parties, he overruled the motion to quash and by compelling implication denied appellant’s affirmative relief which also rested upon this fact finding. Indeed, in light of this finding, the trial judge could not have rendered any other order than one denying appellant’s prayer for an injunction and for a declaration that the 1971 judgment had been satisfied. Consequently, although the judge did not specifically deny appellant’s affirmative relief, we hold that he did so by necessary implication since no other issue remained to be determined by the trial court. Hargrove v. Insurance Investment Corp., 142 Tex. 111, 176 S.W.2d 744 (1944). Accordingly, since all the issues between the parties have been determined, the judgment is final and appealable.

To hold, as appellee would have us do, that the order was not final and thus require appellant to file another suit seeking a judgment declaring the 1971 judgment satisfied and an injunction to prevent collection of that judgment, would likely subject appellant to a defensive plea of res judicata or estoppel by judgment. If such a defensive plea be sustained, then appellant would be precluded from appellate review of the correctness of the trial judge’s determination that the 1971 judgment had not been satisfied. Such a situation would be untenable.

We know of no procedure more appropriate and judicially economical to determine whether the 1971 judgment had been satisfied than that employed by appellant and see no logical reason why this question may not be determined in this manner. Indeed, the effect of the trial judge’s ruling precluded appellant’s affirmative relief. See Proctor v. Associates Investment Co., 257 S.W.2d 324 (Tex.Civ.App.—Galveston 1953, no writ). Although denominated a motion to quash, the pleading filed by appellant was in the nature of a counterclaim seeking affirmative injunctive and declaratory relief from the court. Moreover, the rule in Texas is that “the legal effect of a pleading is not determined by its style or name, but by its contentions and evident purpose.” Emmons v. Creditor’s Financial Services, 492 S.W.2d 363, 366 (Tex.Civ.App.—Waco 1973, no writ); See Tex.R.Civ.P. 71.

Since we have held the order to be final and appealable, the clerk of this court is directed to accept the record for filing as of the date of receipt. The time for filing briefs, however, will begin from the date of this opinion. Motion to file appeal granted.