author: LEWIS, Judge.

text:
    R. T. FRENCH, Coy E. Davis, Lake Stalsworth, Charlie Reece, Hobart Ramsey, Wallace Roach, T. H. Northern, L. G. French, Robert Ely, F. A. Talley, J. C. Denton, James Foster and C. A. Bales, Plaintiffs-Appellees (Cross-Appellants), v. APPALACHIAN ELECTRIC COOPERATIVE, Defendant-Appellant (Cross-Appellee), v. TENNESSEE VALLEY AUTHORITY, Defendant-Imtervenor.
    Court of Appeals of Tennessee, Eastern Section.
    Oct. 3, 1978.
    Certiorari Denied by Supreme Court April 2, 1979.

      B. J. Ramsey, Jr., O. D. Bridges, and John R. Conkin, Jefferson City, for plaintiffs-ap-pellees (cross-appellants).
    J. D. Hale, Clyde W. Key, Knoxville, for defendant-appellant (cross-appellee).
    Herbert S. Sanger, Jr., Gen. Counsel; James E. Fox, Asst. Gen. Counsel; Edgar H. Drum, Tennessee Valley Authority, as amicus curiae.
   LEWIS, Judge.

OPINION

Plaintiffs, R. T. French, et al, are thirteen-member customers of defendant, Appalachian Electric Cooperative. They filed suit on May 15, 1964, to require defendant to distribute, in cash, alleged accumulated revenues. Tennessee Valley Authority (hereafter TVA), who was allowed to intervene as a party defendant, alleged that if the relief sought by plaintiffs was granted it would “impair the obligations of the power contract” between TVA and defendant and “greatly damage and interfere with petitioner’s [TVA] power program throughout the Tennessee Valley Region”. TVA did not appeal.

On the 9th of May, 1977, the Chancellor entered a final decree, the pertinent parts of which are:

“1. That the Appalachian Electric Cooperative should be and is reprimanded for having excess general funds in the years 1958-1961, inclusive, and 1963 and 1964, inclusive, which was not in the best interests of the members of the Cooperative.
“2. Since for the years 1965-1972, inclusive, the Appalachian Electric Cooperative has had insufficient general funds, I do not feel that a penalty or distribution of funds to customers would be justified.
“3. In order to prevent the accumulation of excess general funds by Appalachian Electric Cooperative in the future, it is ordered to report to the Chancery Court of Jefferson County on September 15th of each year the amount of general funds at the preceding June 30. Should excess general funds be found to exist, the Court will take corrective action. The Court reserves jurisdiction to take such action as it deems expedient with reference to said reports.
“4. As noted in my Special Master’s Report, the total utility plant cost of the Appalachian Electric Cooperative increased $6,117,029.31 over the period July 1, 1957 through June 30, 1972. During the same period the actual principal advanced on REA obligations to the Appalachian Electric Cooperative increased from $2,277,740.06 at June 30, 1957 to $4,275,226.18 at June 30, 1972, or an increase of $1,997,486.12. Therefore, earnings from the Cooperative of $4,119,-543.19 are evidently being used to finance additions to utility plant. I question the propriety of this use of earnings.
“5. That the various contracts between the defendant and the Tennessee Valley Authority filed herein are ratified by the Court.
“6. The Court deems that this suit has inured to the benefit of the members of the defendant, and, accordingly that the plaintiffs are entitled to an allowance, to be paid by the defendant on account of plaintiffs’ attorneys fees and costs incurred in the prosecution of this suit. The Court fixes the following amounts, for which judgment is entitled against the defendant, to-wit:
“(a) To Russell and Purkey, CPAs, for their services in preparing an audit report for the Special Master, in the sum of $5,097.87.
“(b) To the Estate of Clarence Bales, deceased attorney, for his legal services rendered herein, the sum of $10,000.00.
“(c) To B. J. Ramsey, O. D. Bridges and John Conkin, attorneys for the plaintiffs, the sum of $1,293.70 for expenses incurred by them, plus the sum of $40,-000.00 for their professional services rendered as attorneys for plaintiff herein.
“(d) To Neal Roach as Special Master the sum of $1500.00.
“7. That the defendant shall pay the costs of the cause, for which execution may issue if necessary for collection of said court costs as well as the expenses and attorneys fees hereinabove allowed.

Both plaintiffs and defendant appeal. We first discuss plaintiffs’ assignments of error:

1. “The Court erred in allowing the Defendant, Appalachian Electric Cooperative, to carry the sum of $807,162.00 on its books as a liability, when in fact, that sum was simply included in general funds and there were no trust or reserve accounts set up by the Cooperative. The Cooperative stopped collecting the members’ contribution to debt service in 1961, but the sum of $807,162.00 is still carried on the Cooperative’s books.”
2. “The Court erred in allowing the Cooperative to show certain items on its books for depreciation and other expenditures without any showing that there was any relationship between the amounts listed for each item and the condition of the plant or the funds actually expended.”
3. “The Court erred in allowing the Defendant to submit audit reports which did not include accounts receivable.”

Plaintiffs, by their first assignment, contend that the $807,162.00 which was carried on the books of Defendant as a liability and was accumulated by the collection of amortization charges from its members has never been applied toward payment of its Rural Electrification Administration debt and that this fund is still on hand and should be refunded to the members.

They contend that because this fund is still carried on the balance sheet this somehow establishes that the fund was not used toward payment of the debt but was either still on hand or has wrongfully been used in additions to the electrical plant.

From a careful review of this record, we are unable to find any evidence to support plaintiffs’ contention. The witnesses who testified on this point, including plaintiffs’ witnesses, testified that it was quite appropriate after these funds had been collected and utilized to continue to reflect them on the balance sheet in exactly the manner that defendant carried them for the purpose of showing their source.

We find nothing in the testimony that establishes a basis for the plaintiffs’ assertion that the amortization collections were wrongly used or were not applied to debt service or that the funds were still available and at the defendant’s disposal.

This assignment is without merit.

They contend by their second assignment that Defendant was not entitled to deduct “depreciation and other expenditures” without showing a relationship between each item on which depreciation was taken and the condition of the plant or the funds actually expended.

The record shows that the defendant has continuously kept its books in accordance with the uniform system of accounting adopted and approved by the Federal Energy Regulatory Commission and that since its inception defendant has accrued depreciation on its physical assets in strict accordance with the depreciation schedules adopted and approved by the Federal Energy Regulatory Commission.

There is no other evidence in the record relating to the matter of depreciation. As is pointed out in the defendant’s brief, the reasonableness or unreasonableness of depreciation taken by the defendant was never made an issue by any pleading in the case. We find that the depreciation schedules promulgated and recommended by the Federal Power Commission and its successor, the Federal Energy Regulatory Commission, are reasonable as guidelines for cooperatives such as the defendant.

This assignment is without merit.

Plaintiffs, by their third assignment, do not purport to show how the Chancellor’s actions prejudiced their rights. This Court will assume the correctness of the Chancellor’s decision where the assignment of error does not state how the Chancellor’s actions prejudiced the plaintiffs’ rights.

We next discuss defendant’s assignments:

1.“The Court erred in holding that this suit had inured to the benefit of the members of the defendant, and that the defendant should be required to pay the fees of plaintiff’s attorneys.”
2. “The Court erred in reprimanding the defendant and in taxing the defendant with court costs and expense.”
3. “The Court erred in requiring the defendant to prepare and file with the Court written annual reports and in retaining jurisdiction of the case for an indefinite time in the future.”
4. “The Court erred in including in the defendant’s reserves at the end of each fiscal year the amount of the membership dues which constituted a liability and are refundable to the members upon termination of their membership.”
5. “The Court erred in not dismissing this suit in its entirety and taxing the plaintiffs and the sureties on their prosecution bond with the costs thereof.”

Since both defendant and plaintiff have seen fit to discuss these assignments together, we will do likewise.

Defendant was organized pursuant to the provisions of the “Electric Cooperative Law”, T.C.A. § 65-2501, et seq. (hereafter referred to as the “Cooperative Law”). Pursuant to the “Cooperative Law”, defendant operated a cooperative non-profit membership corporation for the purpose of supplying, promoting and extending the use of electric energy.

Cooperatives such as the defendant are given broad powers and are granted the discretion to distribute electric revenues in excess of those required for the purposes specified,

“ * * *, either (1) as patronage refunds prorated in accordance with the patronage of the cooperative by the respective members paid for during such fiscal year, or (2) by way of general rate reductions, or (3) by a combination of such methods. Nothing herein contained shall be construed to prohibit the payment by a cooperative of all or any part of its indebtedness prior to the date when the same shall become due.” § 65-2516(F), T.C.A.

The “Cooperative Law” also empowers the defendant to contract with TVA for the purchase or sale of electric energy and in connection therewith to

“ * * * agree to such covenants, terms and conditions as the Board of Trustees may deem appropriate, including covenants, terms and conditions with respect to resale rates, financial and accounting methods, services, operation and maintenance practices and, consistent with § 65-2516, the matter of disposing of the revenues of the properties operated and maintained by the cooperative. * * *.” T.C.A. § 65 — 2508(k).

The defendant, since its inception, has purchased power from TVA under a standard TVA power contract. The present contract establishes the retail rates and strictly controls the use of defendant’s electric revenue. It requires the defendant to operate on a non-profit basis and to maintain and operate its electric system and financial records in strict accordance with the provisions of the contract. Under the contract, the defendant must supply TVA with a financial report of its utility system operation each year and to have its financial statements examined each year by a certified public accountant. The contract sets the resale rate schedule to be charged by the defendant and provides “if the rate and charges in effect * * * are more than sufficient” TVA and defendant “shall agree upon a reduction in * * * rates and charges” and defendant “shall promptly put such reduced rates and charges into effect”. As authorized by the “Cooperative Law” and required by its contract with TVA, defendant has distributed excess revenues solely by way of rate reductions. From June 30,1947, to August 1,1963, TVA recommended on four (4) separate occasions, and defendant implemented, rate reductions to reduce reserves.

On February 12, 1962, REA issued Bulletin No. 1-7 setting forth its recommendation with respect to the amount of “general funds” or “reserves” that would be considered reasonable for an electric cooperative to retain without a reduction in rates in any one of three ways prescribed by the “Cooperative Law” under which defendant was organized and by which its activities are regulated. Bulletin No. 1-7 provides that reserves for working capital in the amount of six (6%) percent of “total plant” were reasonable; that reserves for unusual and unpredictable requirements and contingencies in the amount of six (6%) percent of “total plant” were reasonable; and that reserves for possible storm damage and other acts of God not covered by insurance and for possible loss of revenue from large and uncertain loads should not exceed three (3%) percent of “total plant”. This permitted defendant to retain in reserve funds fifteen (15%) percent of “total plant”. In August of 1969 this was reduced to eight (8%) percent of “total plant”.

“Total Plant” was defined by the Rural Electrification Administration to mean the total undepreciated cost to defendant of its entire electric distribution system.

REA bulletins relating to reserves and the contracts between cooperatives such as the defendant and TVA were upheld in their entirety in Shadow et al v. Volunteer Electric Cooperative, 223 Tenn. 552, 448 S.W.2d 416 (1969).

The audit report, submitted by certified public accountants employed by the Special Master and which was adopted by the Master, showed that the defendant’s total utility plant increased more than Six Million Dollars from June 30,1957 to June 30, 1972, and that defendant had insufficient reserves or general funds at the end of the fiscal years 1957 and 1962 and from 1965— 1972, inclusive, and had excessive general funds for the years 1958 to 1961, inclusive, and in 1963 and 1964.

At the end of the fiscal year June 30, 1962, the defendant’s reserves showed a deficit in the amount of $140,232.46. At the end of the fiscal year June 30, 1963, there were excess reserves in the amount of $99,119.17. Defendant contends this should be reduced by the refundable membership fees of $63,915.00 which would actually reduce the excess to $32,204.17. At the end of the fiscal year 1964 there were excess reserves in the amount of $31,305.99, which it contends should be reduced by refundable membership fees of $71,780.00 which would convert this excess to a deficiency of $40,-474.01. The membership fees are refundable and, as such, are liabilities. The excess reserves should be reduced by the refundable membership fees.

The complaint in the instant case was filed May 15, 1964, demanding that the Trustees take corrective action with respect to the elimination of reserves disclosed by the audit report for the fiscal year ending June 30, 1963, was preceded by a general rate reduction which became effective August 1, 1963. This was some ten (10) months prior to the filing of the complaint. The August 1, 1963 general rate decrease converted excess revenues into a deficit. At no time since that date has the defendant had any excess reserves or general funds out of which to make a refund to members in any one of the three ways set out in the “Cooperative Law”. The corrective action which produced this result was taken by the defendant before the instant suit was filed.

The defendant has continuously kept its books in accordance with the uniform system of accounting adopted and approved by the Federal Energy Regulatory Commission and has accrued depreciation on its physical assets in accordance with the depreciation schedules adopted and approved by the Commission.

On August 5, 1960, defendant received the accountant’s annual audit report for the fiscal year ending June 30, 1960, which disclosed that it reserves had reached 19.9 percent of total plant cost. Effective September 1, 1960, defendant granted a rate reduction by removing the ten (10%) percent surcharge on commercial accounts which resulted in an annual savings of approximately $40,000.00.

Upon receipt of the audit report for the fiscal year ending June 30, 1961, a further rate reduction was granted removing all amortization charges effective September 1, 1961. This reduction reduced reserves covered by REA Bulletin No. 1-7 to 9.9 percent of total plant cost for the fiscal year ending June 30, 1962.

Effective August 1, 1963, a further general rate reduction was granted, which was some ten (10) months prior to the filing of the instant suit and this rate reduction wiped out completely any excess reserves or general funds. The defendant has operated continuously since that time without accumulating any excess reserves.

While the learned Chancellor questions the “propriety” of the use of earnings to finance additions to the utility plant, the “Cooperative Law” provides that revenues may be used to “finance, or to provide a reserve for the financing of, the construction or acquisition by the cooperative of additional facilities to the extent determined by the Board of Trustees”. T.C.A. § 65 — 2516(C). Further, the contract between TVA and the defendant, which was approved by the Chancellor, provides that surplus revenues “may be used for new electric system construction”. This type of contract was approved in Shadow, supra.

The Chancellor’s attempt to retain jurisdiction to review the defendant’s financial decision is clearly erroneous. He is attempting to substitute his judgment for that of the defendant. “It is not the function of the courts to interfere with the internal workings of corporations in exercising their discretion within legal limits.” Gruber v. Chesapeake & Ohio Railway, 158 F.Supp. 593. The Courts will not substitute their judgment for that of the board of directors where the board has acted in good faith within their corporate powers. Range v. Tennessee Burley Tobacco Growers Association, 41 Tenn.App. 667, 298 S.W.2d 545 (1955), cert. denied 355 U.S. 813, 78 S.Ct. 11, 2 L.Ed.2d 30 (1958); Pace v. Garbage Disposal Dist. of Washington Co., 54 Tenn.App. 263, 390 S.W.2d 461, 463 (1965).

“In view of the many variable elements involved in keeping a Cooperative financially sound and at the same time furnish its members electricity at the lowest feasible rates, not unduly varying from year to year, we would construe the statute to allow the officers of the Cooperative discretion as to the completion of the distribution. The court should not interfere unless the Cooperative fails to implement a program required by the statute in the distribution of excessive revenues.” Shadow, et al v. Volunteer Electric Cooperative, supra.

It is abundantly clear that courts should not attempt to obtain jurisdiction over discretionary decisions of cooperatives such as the defendant simply because the cooperatives may fail to carry out their responsibilities sometime in the future.

The membership may bring an appropriate action against the defendant if at some time in the future the defendant fails to properly distribute its revenues.

There has been no showing that there has been a failure on the part of the defendant to implement a program for distribution of excess revenues. On the contrary, the record shows that such a program has been implemented.

Even though the Chancellor found that no distribution of funds would be justified, he nevertheless determined that this suit had inured to the benefit of defendant’s members and that defendant should pay the plaintiffs’ attorneys fees and expenses, fees and expenses incurred by the CPAs, and fees and expenses of the Special Master.

The Chancellor found that rate reductions were not appropriate and were not ordered. The defendant had voluntarily implemented reductions for excess revenues prior to the time this suit was brought. No affirmative relief on behalf of the plaintiffs was ordered. There are no funds out of which to pay attorneys fees and expense, except for the general funds. Plaintiffs were not entitled to, nor did they receive, affirmative relief. No benefits inured to the members of the Appalachian Electric Cooperative as a result of this suit.

Further, attorneys fees cannot be awarded to litigants when there is no property or funds before the court which have been protected or preserved out of which attorneys fees can be paid. Gillespe v. Federal Compress & Warehouse Co., 37 Tenn. App. 476, 265 S.W.2d 21 (1953); Pierce v. Lawrence, 84 Tenn. 572, 1 S.W. 204 (1886).

“ * * * The well nigh universal rule is that where counsel fees are awarded by the court the fee allowed must be paid out of a specific fund recovered or out of specific property protected against threatened loss, or it must rest in contract, either express or implied.
“Since there is no fund or property here, either impounded or protected by any order of the court, upon which a lien can be declared, and no contract to be enforced it results that the decree of the chancellor must be held erroneous.” Southern v. Beeler, 183 Tenn. 272, 195 S.W.2d 857 (1946).

Our public policy is opposed to the allowance of counsel fees of the successful party against the defeated party when there is no property in court. Gillespe v. Federal Compress & Warehouse Co., supra.

In the instant case plaintiffs were not successful in obtaining affirmative relief and further there was no property or fund before the court out of which fees could be paid.

The judgment of the Chancellor is affirmed insofar as it sustains the contract between the defendant and Tennessee Valley Authority and in all other respects is reversed.

The fees of Russell and Purkey, CPAs, for their services in preparing an audit report for the Special Master in the sum of $5,097.87 and the Special Master’s fee in the sum of $1500.00 shall be taxed as a part of the costs.

The costs will be taxed one-half to plaintiffs and one-half to defendant, Appalachian Electric Cooperative.

PARROTT, P. J., and GODDARD, J., concur.


source: Caselaw Access Project

author: EWELL, Judge.

license: Public Domain

text:
    Mary Ann Lester LEWIS et al., Plaintiffs-Appellants, v. Cleo Jordan DARNELL et al., Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    Dec. 1, 1978.
    Certiorari Denied by Supreme Court March 5, 1979.

      Richard J. Brodhead, Lebanon, for plaintiffs-appellants.
    E. R. Woolard, Woolard & Bishop, Lebanon, for defendants-appellees.
   EWELL, Judge.

This case is before the Court on an appeal from the Chancery Court of Wilson County, Tennessee, by Mary Ann Lester Lewis and others from a decree construing the will of Minnie L. Reeves, deceased.

Mrs. Reeves died testate, a resident of Wilson County, Tennessee, on April 30, 1975. Her husband, S.M. Reeves, died in 1962, and both Mr. and Mrs. Reeves died without issue. She left a brother, Charlie Reason Lester, one of the defendants, and nine nieces and nephews, children of her deceased brothers. Eight of the nieces and nephews are the plaintiffs in the case and one nephew, Cleo Jordan Darnell, is a defendant. The defendants, R.H. Hancock and Edsel Floyd, are the co-executors of the last will and testament of Mrs. Reeves.

The holographic will including certain notations on an envelope in which the will was enclosed was admitted to probate in common form in the County Court of Wilson County, Tennessee, on July 21, 1975, to be deemed and treated as one instrument.

The will at issue is as follows:

WILL
I, Minnie Lee Reeves, do hereby make and declare this to be my last will.
1st. I direct my executors, the deacons of First Baptist Church, to pay all of my debts.
2nd. I want a trust fund put in the First Federal Bank of $2,500.00 for Greenvale Cemetery to help care for it and help keep the road to the cemetery fixed. Interest to be used each year.
3rd. If there is anything left, I want it put in First Federal Bank for my church to use the interest each year for mission work. That lost souls may hear about and know my dear Saviour.
I do witness my hand this day.
DATE Mav 4-68
NAME/S/ Minnie L. Reeves.
Minnie L. Reeves
Signed in our presence and each other.
/S/ Lucille Penuel-Watertown. Tenn.
WITNESS & ADDRESS
/S/ Geo. W. Griffith-Watertown. Tn.
WITNESS & ADDRESS”

On the front of the envelope in which the will was enclosed was the notation “The Will of Minnie L. Reeves signed May 4-68”; and on the reverse side was the notation “Sm. Reeves and wife, Minnie L. Reeves leave a trust fund to their church, for the int. to be used annually, to spread the gospel to a lost world untill (sic) Jesus comes.” The order of probate provided that the notations on the envelope be admitted, deemed and treated as part of the will.

On April 29,1977, a will contest was tried in the Circuit Court of Wilson County, Tennessee, resulting in the will, as probated, being sustained and upheld as the true, whole last will and testament of Minnie L. Reeves. Subsequently plaintiffs filed this suit seeking a judicial construction of the will whereby the same would be declared null and void and the entire estate distributed to the heirs of Mrs. Reeves according to the laws of descent and distribution of the State of Tennessee.

The Trial Court found that the will established two trusts, one for the maintenance of the Greenvale Cemetery in the amount of $2,500.00 and the other for mission work to be administered by and through First Baptist Church of Watertown, Tennessee, consisting of all that remained of the estate, both real and personal, after the payment of the debts and administration expenses and the funding of the “Greenvale Cemetery” trust.

Plaintiffs timely perfected their appeal to this Court assigning five errors as set out below.

Plaintiffs insist that the Trial Court erred in considering the notations on the envelope which held the will in making its final determination. The Chancellor had no choice but to consider the notations in question since the order of probate entered in the County Court of Wilson County, Tennessee, specifically provided that such notations were to be considered with the instrument enclosed within the envelope jointly as the last will and testament of Minnie L. Reeves. The will as probated has been sustained in a will contest tried in the Circuit Court of Wilson County, Tennessee, and the Chancellor in this case was called upon to construe that which was before him as the last will and testament of Minnie L. Reeves. This included the notations on the envelope, and the Chancellor was not in error. See State ex rel Estes v. Goodman, 133 Tenn. 375, 181 S.W.2d 312 (1915) and John v. Tate, 26 Tenn. 388 (1846). Accordingly, the first assignment of error is overruled.

In the second, third and fifth assignments of error plaintiffs charge that the Trial Court erred in finding (1) it was the intention of the testatrix that First Baptist Church of Watertown was to receive a trust, (2) that the beneficiaries in the alleged will were definite, and (3) that the will establishes a charitable trust. We will discuss these assignments jointly.

Mrs. Reeves in her will designated the deacons of “First Baptist Church” as her executors, and in the paragraph designated 3rd she makes reference to “my church”. In one of the notations on the envelope in which the will was contained reference was made to “their church”. The Chancellor found and held that the foregoing references were to the First Baptist Church of Watertown, and in so doing he went beyond the four corners of the will and properly considered extrinsic evidence to ascertain the state of facts under which the will was made. See McFadden v. Blair, 42 Tenn.App. 434, 304 S.W.2d 93 (1956); Johnson v. Speer, 38 Tenn.App. 696, 279 S.W.2d 711 (1954); and Phillips’ Pritchard on Law Of Wills and Administration of Estates, Sec. 409 (3rd ed. 1955). The proof establishes the fact that both Mr. and Mrs. Reeves were members of the First Baptist Church of Watertown, Tennessee, from February 25, 1945, until death; that Mr. Reeves was a deacon in the Church; and that Mrs. Reeves was active in the Church so long as her health permitted. The Chancellor found that under the circumstances it would be perfectly natural for Mrs. Reeves to use terms such as “First Baptist Church”, “my church” and “their church” referring to the First Baptist Church of Watertown, Tennessee, and he construed the will accordingly. We concur in this construction. The cardinal rule in the construction of wills is that the court seeks to discover the intention of the testatrix and to this rule all other rules of construction must yield. Harris v. Bittikofer, 541 S.W.2d 372 (Tenn.1976); Webb v. Webb, 53 Tenn.App. 609, 385 S.W.2d 295 (1964); Martin v. Taylor, 521 S.W.2d 581 (Tenn.1975). The will was drafted by Mrs. Reeves who obviously was not skilled in the drafting of wills, and it is, therefore, the duty of the court to give more liberality toward the construction of the instrument. Garner v. Becton, 187 Tenn. 34, 212 S.W.2d 890 (1948).

The beneficiary of the “church” trust was the mission program of the church “that lost souls may hear about and know my dear Saviour”. The beneficiary of the “cemetery” trust was Greenvale Cemetery in that the income from the corpus was to be used annually “to help care for it (Green-vale Cemetery) and to help keep the road to the cemetery fixed”. Plaintiffs complain that the Chancellor erred in finding that these beneficiaries were definite; and for this reason and because the testatrix failed to appoint specific trustees and further because of vagueness and uncertainty it is insisted that the will fails to establish legally enforceable trusts.

We are satisfied that the will itself complemented by the extrinsic evidence presented at the hearing conclusively identifies the First Baptist Church of Water-town, Tennessee, as being the church referred to by Mrs. Reeves in her will. Likewise, the testimony of Elmer M. Fann, trustee of Greenvale Cemetery, situated in Wilson County, Tennessee, clearly identifies the object or beneficiary of the $2,500.00 trust.

The failure of Mrs. Reeves to specifically designate and identify a trustee or trustees with respect to each of these trusts is not fatal under section 35-120 of Tennessee Code Annotated whereby the trial court is authorized to appoint trustees so as to prevent the failure of the trust. Pursuant to this authority the Chancellor directed the executors to pay over the sum of $2,500.00 to the trustees of Greenvale Cemetery for deposit in the First Federal Savings and Loan Association of Lebanon with interest therefrom to be applied to the maintenance of Greenvale Cemetery and the road leading to the same. In like fashion the Chancellor ordered the executors to pay over the residuary estate to First Baptist Church of Watertown, Tennessee, and to the trustees thereof, to administer and handle the income therefrom for mission work deemed proper by appropriate and legal action of said church and its congregation, acting through its trustees or deacons as the church may direct. By so decreeing the Chancellor gave legal effect to the clear intent of Mrs. Reeves as expressed in her will.

The most serious objection raised by the plaintiffs relates to the matter of vagueness and uncertainty in the object of the “church” trust. The attorney for the plaintiffs cites several cases as authority for the proposition that said trust must fail for vagueness and uncertainty of object. Two of the cases cited by counsel arose around the middle of the last century in the states of North Carolina and Connecticut, and this Court does not consider those cases as authority applicable to the case before us. We have considered the case of Delany v. First People’s Bank of Johnson City, 214 Tenn. 355, 380 S.W.2d 65 (1964) and find that the will under consideration in that case bears little, if any, resemblance to the will of Mrs. Reeves. More nearly in point are the cases of Johnson v. Johnson,, 92 Tenn. 559, 23 S.W. 114 (1893); Jones v. Green, 36 S.W. 729 (Tenn.Ch.App.1895); and Davis v. Bullington, 164 Tenn. 272, 47 S.W.2d 555 (1932), all cited by counsel for plaintiffs in support of his insistence. However, we find that Mrs. Reeves in her will was substantially more definite and explicit than each of the three testators whose trusts the courts in those cases declined to enforce as being too indefinite. We concur with the Chancellor in sustaining the trusts of Mrs. Reeves under the authority of Dickson v. Montgomery, 31 Tenn. 348 (1851) and Ratto v. Nashville Trust Co., 178 Tenn. 457, 159 S.W.2d 88 (1941). See also Phillips’ Pritchard on Law of Wills and Administration of Estates, Sec. 185 and 186 (3rd ed. 1955).

Trusts for charitable uses are highly favored by courts of equity, and they will be upheld although the parties to be benefited may not be defined with that precision which would be requisite in trusts of an ordinary and private description. In this case the will was prepared by Mrs. Reeves who was not trained in the use of technical terms. However, her expression of intent is definite and clear and susceptible of being dealt with by a court of equity. We find and hold that the Chancellor in this case has dealt with it properly and effectively, and, therefore, plaintiffs’ assignments of error numbered two, three, and five are overruled.

The remaining assignment of error faults the Trial Court in finding that the entire estate, both personal and real property, should pass under the will. The Chancellor held that after payment of debts and expenses and the funding of the “cemetery” trust, the remainder of the assets of the estate would form the corpus of the “church” trust for mission work. The phrase of the will in question is found in the paragraph numbered 3rd where the testatrix provides that “if there is anything left, I want it . in identifying the corpus of the residuary estate. Plaintiffs insist that this language is not sufficient to pass the real estate owned by Mrs. Reeves at her death, but the Chancellor held that the testatrix by using the word “anything” referred to her entire estate, both real and personal. The Chancellor is supported by section 32 — 301 of Tennessee Code Annotated, and we again concur in his holding. See also Deavers v. Heavens, 61 Tenn.App. 704, 457 S.W.2d 618 (1970) and Phillips’ Pritch-ard on Law of Wills and Administration of Estates, Sec. 386 and 458 (3rd ed. 1955). Plaintiffs’ fourth assignment of error is accordingly overruled.

From a fair and unstrained reading of the will of Mrs. Reeves it is clear that she intended to create two trusts, one for the benefit of Greenvale Cemetery and one for the use of First Baptist Church of Water-town, Tennessee, in its mission program; and it is equally clear that she intended that her entire estate be so used. For a person untrained in the law we find that Mrs. Reeves has been more than legally adequate in the drafting of her will and that the Chancellor has not committed error or abused his discretion in construing and implementing it. Accordingly, the judgment of the Chancellor is affirmed in all parts and the cause is remanded to the Chancery Court of Wilson County, Tennessee, for implementation of the decree. The costs of the cause are adjudged against the plaintiffs and their sureties.

TODD and DROWOTA, JJ., concur.


author: DAUGHTREY, Judge.

text:
    Tommy L. WILLIS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 21, 1978.
    Certiorari Denied by Supreme Court March 5, 1979.
    Bobby Ray Tate, Kingsport, for appellant.

      William M. Leech, Jr., Atty. Gen., Michael J. Passino, Asst. Atty. Gen., Nashville, R. Jerry Beck, Asst. Dist. Atty. Gen., Blountville, for appellee.
   DAUGHTREY, Judge.

OPINION

The petitioner, Tommy L. Willis, pleaded guilty to grand larceny in May 1976 and was sentenced to six to ten years imprisonment. His plea was made in exchange for the prosecutor’s agreement to drop an additional count charging Willis with being an habitual criminal.

Some two years later, Willis filed a petition for post-conviction relief, alleging that he was not mentally competent when he entered his guilty plea in 1976 and that this fact should have been apparent to the trial judge, who thus violated the petitioner’s constitutional rights in failing to hold a hearing to determine Willis’s competency before receiving his plea. He cites as authority Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), which holds that an incompetent defendant cannot be constitutionally tried and convicted, and that in cases in which the evidence raises a bona fide doubt as to a defendant’s competence to stand trial, the judge, on his or her own motion, must order a competency hearing.

After appointment of counsel and an extensive hearing on the petition, the Court below denied relief.

Willis insists on appeal that the transcript of the guilty plea hearing demonstrated conclusively that the trial judge entertained substantial doubt about the petitioner’s competence to plead guilty. That transcript includes the following exchange between the petitioner and the trial judge:

The Court: Anything about your health, physical or mental condition that would cause you not to fully and completely understand the proceedings here today?
A. (Unintelligible response.)
The Court: Sir?
A. (Unintelligible response.)
The Court: Anything about your physical condition that would cause you not to fully and completely understand the proceedings here today?
A. I don’t think so.
The Court: Anything about your mental condition that would cause you not to fully and completely understand the proceedings here today?
A. Truthfully, yes.
The Court: What about your mental condition that would cause you not to fully and completely understand the proceedings?
A. I don’t know how to explain it.
The Court: Do you feel that you do not— you cannot listen to the Court and completely understand everything that the Court is telling you and voluntarily plead guilty here today?
A. I don’t — I don’t mean it like that.
The Court: Have you had any treatment for any psychiatric, emotional or mental disorder?
A. No, sir.
The Court: Have you sought any?
A. I probably — Yes, sir, I probably have in a way.
The Court: Do you believe that you have some mental, psychological or emotional disorder?
A. I probably do but not to the extent that I don’t understand.
The Court: What do you believe is the nature of your problem?
A. I want to plead guilty.
The Court: I understand that, but .
A. Can I sit down?
The Court: Yes, sir. What do you believe is the nature of your problem? Is it a nervous problem?
A. Yes, sir.
The Court: Is there anything that would cause you not to think clearly here today?
A. Your Honor, I want to plead guilty.
The Court: I understand that, Mr. Willis, but before the Court can allow a guilty plea, the Court must determine whether or not you are physically and mentally and emotionally capable of entering a guilty plea and whether you are, in fact, guilty.
A. Well, I have to admit that I’m going through a stage that — that’s—that at times I don’t understand myself, but
The Court: You’re saying there are times you don’t understand why you do what you do? Is that the problem?
A. I’ve been trying to justify a lot of things that I’ve done in my past.
The Court: I can understand that.
A. But I understand what’s going on here.
The Court: You don’t think you have any problem — if you think that you, in fact, do, even though you haven’t been treated for any problem, if you think that you do have some intermittent problems as you’ve stated — I think I’m correctly paraphrasing what you’ve said. If I misstate anything or — you understand what I’m saying now? If I misstate it, you tell me very quickly. But do you believe that you — you’ve had a soul-searching problem recently, but it’s not such as would affect your ability to clearly understand what I’m telling you. Is that what you’re telling me?
A. Yes, sir.
The Court: And you believe that you can fully and completely understand what we’re doing?
A. Yes, sir.
The Court: And what you’re doing?
A. Yes, sir.
The Court: And the nature of what you’re doing?
A. Yes, sir.
The Court: And the consequences of it?
A. Yes, sir.

This colloquy from the transcript represents only a small portion of the trial judge’s painstaking effort to ensure that Willis’s plea was knowingly, voluntarily, and understandingly entered. There is nothing in this or any other part of the transcript which could be taken to constitute the “substantial evidence” of mental incompetency which is a prerequisite to a finding that the trial court has violated the principles of Pate v. Robinson, supra. Even so, the post-conviction hearing conducted by Judge Murphy was far-ranging and exhaustive. The petitioner was permitted to explore every possible ramification of the allegations in his petition.

Willis’s witnesses described him at the time of his pre-trial incarceration as indecisive about whether to plead guilty, emotionally upset and very nervous, and physically sick as a result of being unable to eat the jail food. His two attorneys recalled that he was extremely nervous and under a great deal of pressure because of the pending habitual criminal charge, which Willis thought was “. . . unfair, . a personal thing by [the District Attorney].” This situation was corroborated by three of the local jailers and an “arts and crafts lady” from a local church, who did weekly counselling with jail inmates. Despite Willis’s understandable concern about the serious charges against him, his attorneys were certain that their client had “understood what was happening and understood the consequences”; neither one of them saw any reason to request a pre-trial psychiatric examination.

The record amply supports the finding of the hearing judge that the petitioner was mentally competent at the time he pleaded guilty. We hold that there was no error under Pate v. Robinson, supra, nor do we find any abuse of discretion in the court’s decision not to order a psychiatric evaluation of Willis prior to ruling on his post-conviction petition.

The judgment below is affirmed.

DUNCAN and CORNELIUS, JJ., concur.


author: DOUGLAS, Judge. PHILLIPS, Judge, TOM G. DAVIS, Judge.

text:
    Vernon Glenn ALEXANDER, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 58809.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Dec. 13, 1978.
    On Rehearing May 23, 1979.
    John Mustachio, Houston, for appellant.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

The conviction is for aggravated robbery. Punishment was assessed at eight years.

The record contains no transcript of the evidence or statement of facts. Without any evidence, this Court cannot determine if errors in the charge constitute reversible error. It has been the rule that, absent a statement of facts, objections to the charge or exception to the trial court’s refusal to give requested charges will not be considered on appeal. Creech v. State, 170 Tex.Cr.R. 563, 342 S.W.2d 757 (1961); Conwell v. State, 258 S.W.2d 86 (Tex.Cr.App. 1953), and Moore v. State, 146 Tex.Cr.R. 342, 175 S.W.2d 76 (1943). See Texas Digest, Criminal Law, «=>1090(14), for many other cases to the same effect.

In the present case there is no objection to the charge. Nothing was raised on appeal and nothing is before us for review.

The judgment is affirmed.

PHILLIPS, Judge,

dissenting.

I dissent. The majority conveniently fails to point out the recent cases of this Court which demonstrate that the type of error that is self-evident from a comparison of the indictment and the trial court’s charge is one reviewable in the interest of justice absent trial or appellate objection. Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.); Jones v. State, 566 S.W.2d 939 (Tex.Cr.App.); Edmond v. State, 566 S.W.2d 609 (Tex.Cr.App.); Smith v. State, 570 S.W.2d 958 (delivered September 20, 1978); Armstead v. State, 573 S.W.2d 231 (delivered November 15, 1978).

As in the above cases, the indictment here charges aggravated robbery under V.T.C.A., Penal Code, Sections 29.02(a)(2) and 29.03(a)(2), while the court’s charge authorized the jury to convict appellant if they found he violated Sections 29.02(a)(2), 29.03 (a)(1) or (a)(2). Thus, a theory for commission of the offense not alleged was submitted to the jury for its consideration. This procedure has repeatedly been condemned recently as “fundamental error.” Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.); Plunkett v. State, 580 S.W.2d 815 (1978); Jones v. State, supra; Edmond v. State, supra; Robinson v. State, supra; Smith v. State, supra; Armstead v. State, supra.

The above-referenced opinions, when read in conjunction with Judge Vollers’ dissent to the denial of the State’s motion for leave to file a motion for rehearing in Brewer v. State, 572 S.W.2d 940 (denied November 15, 1978), demonstrate that this Court deems the statement of facts unnecessary to a determination of reversible error in this narrow circumstance. Thus, the majority’s effort to dodge the issue bodes ill for the equal-handed administration of justice we strive for.

Finally, the majority opinion ignores the appellant’s Motion to Abate [the] Appeal pending preparation and inclusion of the statement of facts in the record. The record before us contains a post-conviction affidavit of indigency and an order of the trial court commanding the preparation of a statement of facts. The record contains only a statement of facts from the sentencing proceeding. The court reporter certifies it to be a complete transcription of the “sentencing” proceeding. There is no motion or request to have the trial proceedings reported by the court reporter in the record. See Article 40.09(4), V.A.C.C.P.; Palka v. State, 435 S.W.2d 525 (Tex.Cr.App.). There are no objections to the record. See Article 40.09(7), Y.A.C.C.P. The motion to abate the appeal should be denied. However, denial of this motion should not affect the determination of the first issue discussed herein in the interest of justice [Article 40.09(13)], notwithstanding the absence of a record showing whether the error identified was objected to.

Again, I dissent.

OPINION ON APPELLANT’S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

The conviction is for aggravated robbery and the punishment assessed is eight years.

On original submission it was held by the panel that, absent a transcription of the evidence or statement of facts, appellant’s complaint about the charge would not be considered on appeal. The holding on original submission is contrary to a prior decision of a panel of this Court in Jones v. State, 566 S.W.2d 939.

In the instant case, the indictment in charging the offense of aggravated robbery alleged in pertinent part that appellant:

“while in the course of committing theft of cash money owned by Dale Watson, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely a pistol.”

The indictment and charge herein appear to be identical in pertinent parts to the indictment and charge in Jones. As in Jones, the court authorized the jury to convict appellant not only if it found that appellant committed aggravated robbery under V.T.C.A. Penal Code, Secs. 29.02(a)(2) and 29.03(a)(2), as charged in the indictment, but also allowed the jury to convict appellant if they found he committed aggravated robbery under V.T.C.A. Penal Code, Secs. 29.02(a)(1) and 29.03(a)(1). In applying the law to the facts, the trial court instructed the jury in the instant case as follows:

“Now if you find from the evidence beyond a reasonable doubt that on or about the 14th day of October, 1976 in Harris County, Texas, the defendant, Vernon Glenn Alexander, Jr., with intent to deprive Dale Watson, the owner, of his personal property, to wit, cash money belonging to said owner, did unlawfully appropriate or unlawfully attempt to appropriate from Dale Watson said cash money belonging to Dale Watson, and that the defendant, in so doing, and with intent to obtain or maintain control of said cash money, then and there intentionally, knowingly, or recklessly caused bodily injury to said Dale Watson or the defendant then and there intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and if you further find from the evidence beyond a reasonable doubt that the defendant, in committing the foregoing acts, if you do so find, caused serious bodily injury to Dale Watson or that the defendant used or exhibited a deadly weapon, to wit, a pistol, then you will find defendant guilty of aggravated robbery, as charged in the indictment.”

After it was noted in Jones that the record was “before us without a transcription of the court reporter’s notes,” it was stated, “Nevertheless, we must reverse the judgment below, because the trial court in applying the law to the facts in his charge to the jury, authorized them to convict appellant on a theory not alleged in the indictment.” See Robinson v. State, Tex.Cr.App., 553 S.W.2d 371; Davis v. State, Tex.Cr.App., 557 S.W.2d 303.

The State in replying to appellant’s motion for rehearing calls our attention to the jury’s finding that the appellant was “guilty as charged in the indictment.” This argument overlooks the court’s charge which authorized the jury to find the appellant “guilty of aggravated robbery, as charged in the indictment” under either theory set forth in the charge.

The above authorities and cases cited therein dictate that reversible error is committed when a trial court’s charge authorizes a conviction for either of the two different modes of committing aggravated robbery when only one was alleged in the indictment.

The appellant’s motion for rehearing is granted. The judgment is reversed, and the cause remanded.

DOUGLAS, DALLY and W. C. DAVIS, JJ., dissent.


author: ONION, Presiding Judge. ODOM, Judge,

text:
    John Wayne EHRMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 59361.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Jan. 17, 1979.
    Rehearing Denied May 23, 1979.

      Tom Mills, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Steve Wilen-sky and Rick Russell, Asst. Dist. Attys., Dallas, and Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation. On February 15, 1978 appellant pled guilty to the offense of felony theft. The trial court assessed punishment at three (3) years’ imprisonment but suspended the imposition of the sentence and placed the appellant on probation subject, inter alia, to a condition that he commit no offense against the laws of this or any other state or the United States.

On March 16, 1978 the State filed a motion to revoke probation. In pertinent part, the motion alleged that “on the 23rd day of February, 1978” the appellant did “knowingly and intentionally appropriate stolen property ... of value of more than $20 but less than $200.00 . . . knowing the property to be stolen by another.” It was also alleged that the violation-offense occurred after February 15, 1978 and during the term of probation. A hearing was held on said motion on March 17,1978, at the conclusion of which probation was revoked on the ground alleged. Sentence was imposed and notice of appeal was given.

On appeal appellant contends the evidence was insufficient to show he committed the offense as alleged in the revocation motion, and that the court erred in admitting evidence of items seized in the search of his home since the court refused to require the State at the revocation hearing to produce the search warrant under which the search was conducted by police officers.

Billy Yenny testified that she and her husband, Albert, had been on a weekend trip between February 3rd and 5th, 1978, and upon their return in Dallas they found certain items, alleged in the revocation motion, missing from their home. On February 23, 1978, after searching appellant’s apartment, several officers of the Dallas Police Department testified that they found items alleged in the revocation motion and identified at the revocation hearing by Billy Yenny as belonging to her or her husband. They also found many items, several carloads full of stolen property, in appellant’s apartment.

Appellant testified he had committed no offense after he was granted probation on February 15,1978, and his wife testified her husband ran newspaper ads in the Dallas newspapers that he bought “gold, silver and diamonds” and that people came to the house to sell things to her husband.

V.T.C.A., Penal Code, § 31.03, reads in part:

“(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.
“(b) Appropriation of property is unlawful if:
“(1) it is without the owner’s effective consent; or
“(2) the property is stolen and the actor appropriates the property knowing it was stolen by another.”

The revocation motion, mentioned above, was drafted under said § 31.03(b)(2). The offense charged is similar to the receiving or concealing of property offense under the former Penal Code. See Article 1430, V.A. P.C., 1925. Under the former Code, an essential element of the offense of receiving or concealing stolen property is knowledge on the part of the accused that the property received or concealed by him was stolen. See Bradshaw v. State, 482 S.W.2d 233 (Tex.Cr.App.1972); 5 Branch’s Ann.P.C., 2nd Ed., § 2724, p. 168.

Under the present Code, it has been held that knowledge that the property is stolen is still an essential element of the offense under Y.T.C.A., Penal Code, § 31.-03(b)(2). Pool v. State, 528 S.W.2d 255 (Tex.Cr.App.1975); Cooper v. State, 537 S.W.2d 940 (Tex.Cr.App.1976). And this is true even though the offenses of theft have been consolidated. See Y.T.C.A., Penal Code, § 31.02.

The appellant urges that the State is bound to prove what it alleged in the revocation motion and contends the evidence is insufficient to show that he appropriated the property knowing it to be stolen. He calls attention to those cases decided under the former Penal Code that unexplained possession of recently stolen property is not alone sufficient to show that the accused knew the property was stolen in a receiving or concealing stolen property case. See Pool v. State, supra; Bradshaw v. State, supra; Bobo v. State, 361 S.W.2d 376 (Tex.Cr.App.1962); Hochman v. State, 170 S.W.2d 756 (Tex.Cr.App.1943). See also Jackson v. State, 464 S.W.2d 153 (Tex.Cr.App.1971); Hodges v. State, 160 S.W.2d 262 (Tex.Cr.App.1942); Castleberry v. State, 35 Tex.Cr.R. 382, 33 S.W. 875 (1896). Appellant argues that no proof was offered who committed the burglary at the Yenny home and no showing how he acquired possession of the items allegedly stolen.

This may all be true, but we observe that there is another provision of the Penal Code section under which appellant is charged which must be noted. V.T.C.A., Penal Code, § 31.03(c)(1), reads:

“(c) For purposes of Subsection (b)(2) of this section:
“(1) evidence that the actor has previously participated in recent transactions other than, but similar to, that which the prosecution is based is admissible for the purpose of showing knowledge or intent and the issues of knowledge or intent are raised by the actor’s plea of not guilty.”

It is observed that appellant pled “untrue” to the allegations in the revocation motion, and we observe that this raised the issue of knowledge.

The trial court could take judicial notice of the judgment convicting appellant of felony theft which resulted in appellant being placed on probation only eight days prior to the alleged offense, as well as the evidence that appellant’s apartment was full of stolen items of property. Further, knowledge that goods have been stolen may be established by circumstantial evidence. Burton v. State, 277 S.W. 390 (Tex.Cr.App.1925); Rodriguez v. State, 115 S.W.2d 905 (Tex.Cr.App.1938); Owens v. State, 80 S.W.2d 316 (Tex.Cr.App.1935).

We conclude the evidence is sufficient to sustain the allegations in the revocation when the burden of proof on the State is considered. Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1974).

Next, appellant contends the State was required to produce a search warrant when such warrant was demanded at the revocation hearing when evidence of the search was offered.

When a search has been conducted by virtue of a search warrant, and a timely objection is made, it is incumbent upon the State to produce and exhibit to the court a valid search warrant. If the State fails to do so, and without more, the appellant’s objection is overruled permitting evidence of the search and its fruits to be admitted, reversible error will result. Vines v. State, 397 S.W.2d 868 (Tex.Cr.App.1966); Nunez v. State, 168 Tex.Cr.R. 455, 329 S.W.2d 93 (1959); Brown v. State, 166 Tex.Cr.App. 322, 313 S.W.2d 297 (1958); 11 Tex.Digest, Crim.Law, § 394.5(1); • 51 Tex.Jur.2d, Searches and Seizures, § 42, p. 729. Thus, the court erred in refusing to require the State to produce that which was available and in the State’s possession. However, the error was waived when the appellant took the witness stand and admitted that he was in possession of all of the items taken in the search. Nelson v. State, 509 S.W.2d 367 (Tex.Cr.App.1974); Gorbell v. State, 508 S.W.2d 86 (Tex.Cr.App.1974).

Finding no abuse of discretion, the judgment is affirmed.

ON MOTION FOR REHEARING

ODOM, Judge,

dissenting.

I dissent to the majority’s decision to overrule appellant’s motion for rehearing without written opinion. On original submission a panel of this Court held that the issue of the lawfulness of the search and seizure was waived when appellant testified and admitted possession of the seized property. By motion for rehearing appellant pointed out that the panel decision was in conflict with Thomas v. State, Tex.Cr.App., 572 S.W.2d 507, 512 (on motion for rehearing), at 516, in which the Court, speaking through Presiding Judge Onion, held:

“. . . the harmful effect of improperly admitted evidence which is obtained by illegal police practices is not cured when a defendant gives testimony on direct examination which establishes the same or similar facts unless the state can show that its illegal action in obtaining and introducing the evidence did not impel the defendant’s testimony.” (Emphasis added.)

The State did not discharge its burden under Thomas, and appellant is entitled to consideration of the ground of error on the merits. To the Court’s refusal to give equal application of the Thomas holding to the facts of this case, I respectfully dissent.

ROBERTS and CLINTON, JJ., join in this dissent.

      . In a supplemental brief, appellant calls attention to Walker v. State, 539 S.W.2d 894 (Tex. Cr.App.1976), a revocation of probation case, where Pool v. State, supra, and Bradshaw v.
        State, supra, were cited with approval. Walker was reversed for the failure of the State to show that Walker knew the property was stolen. Walker can be distinguished on its facts. There was no showing that Walker was in possession of other stolen property, and V.T. C.A., Penal Code, § 31.03(c)(1), did not come into play and was not discussed.


author: ODOM, Judge. DOUGLAS, Judge,

text:
    Jack Vernon SANDIG, Appellant, v. The STATE of Texas, Appellee.
    No. 59489.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 28, 1979.
    Rehearing En Banc Denied May 16, 1979.

      Samuel H. Bayless, San Antonio, for appellant.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for indecency with a child, V.T.C.A., Penal Code Sec. 21.11; punishment was assessed by the court at ten years.

In his first ground of error appellant asserts the jury charge contains fundamental error in that it authorizes conviction on theories not alleged in the indictment. Sec. 21.11, supra, in relevant part provides:

“(a) A person commits an offense if, with a child younger than 17 years and .not his spouse, whether the child is of the same or opposite sex, he:
(1) engages in sexual contact with the child; ...”

Sexual contact as defined in V.T.C.A., Penal Code Sec. 21.01(2), means:

“. . any touching of the anus or any part of the genitals of another person or the breast of a female 10 years or older with intent to arouse or gratify the sexual desire of any person.”

The indictment in this case alleges that appellant did:

“. . . engage in sexual contact with C_S_, a female child not his spouse and younger than 17 years of age, by then and there touching the anus of the said C_ S- with the intent to arrouse [sic] and gratify the sexual desire of the said JACK SANDIG

It is readily apparent that the indictment alleged a specific means of engaging in sexual contact from among the three means provided in the statutory definition of that term.

We now set out the relevant portions of the jury instructions in this case:

“The Defendant, Jack Vernon Sandig, stands charged by indictment with the offense of sexual indecency with a child, alleged to have been committed on or about the 3rd day of March, A.D.1977, in Comal County, Texas.
“A person commits the offense of indecency with a child if he intentionally engages in sexual contact with a child who is younger than 17 years and not his spouse, whether the child is of the same or opposite sex.
“The term ‘sexual contact’ means any touching of the anus or any part of the genitals of another person or the breast of a female 10 years or older with the intent to arouse or gratify the sexual desire of any person.
“Therefore, if you believe from the evidence beyond a reasonable doubt that the Defendant, Jack Vernon Sandig, did, in Comal County, Texas, on or about the 3rd day of March, A.D.1977, intentionally engage in sexual contact with C_ S_, who was then and there a child younger than 17 years, and not the Defendant’s spouse, by sexual contact as alleged, you will find the Defendant guilty.
“If you do not so believe, or if you have a reasonable doubt thereof, you will find the Defendant not guilty.”

Appellant argues that the jury charge is fundamentally defective by enlarging upon the allegations in the indictment because it defines “sexual contact” in statutory terms that include all means of committing such conduct and the application of the law to the facts of the case does nothing to restrict the term to the particular means alleged in this case. He acknowledges that the charge does say “by sexual contact as alleged,” but points out that the allegations of the indictment are set out in the jury charge with no greater specificity than the name of the offense, which in turn is defined in general statutory terms including all means of “sexual contact.” The State has filed no brief in response to this or any of appellant’s other grounds of error.

Appellant cites the cases of Morter v. State, Tex.Cr.App., 551 S.W.2d 715, and Robinson v. State, Tex.Cr.App., 553 S.W.2d 371, for the proposition that fundamental error is presented when a jury charge authorizes conviction on any theory not alleged in the indictment. Such error is presented in the record here, as shown by the excerpts quoted above.

While it is true that an abstract statement of the law that goes beyond the allegations in the indictment ordinarily will not present reversible error, that is true because ordinarily such expansions on the indictment’s allegations are effectively restricted by the charge’s application of the law to the facts, which should limit the jury’s deliberations to the allegations in the indictment supported by evidence. See, e. g., Toler v. State, Tex.Cr.App., 546 S.W.2d 290, 293-294. In the case at bar, however, the application of the law to the facts did not require the jury to find appellant committed the acts described in the indictment. Although it did recite “by sexual contact as alleged,” this did not instruct the jury on what acts were alleged. In fact, when the jury charge is read as a whole to determine what was alleged, it appears to have instructed the jury that appellant was charged with sexual contact by all means, instead of by the single means actually alleged.

On established precedents that hold it is fundamental error to authorize a conviction on charges not contained in the indictment, the judgment is reversed and the cause remanded.

DOUGLAS, Judge,

dissenting.

The conviction should not be reversed on the ground set forth in the majority opinion. No harm has been shown or that appellant has not obtained a fair trial. Error in a charge should not cause a reversal unless it is calculated to injure the rights of a defendant as provided in Article 36.19, U.A.C.C.P. See the dissenting opinion in Cleland v. State, 575 S.W.2d 296 (Tex.Cr.App.1979).


author: ROBERTS, Judge.

text:
    Eric Rodney GOSS, Appellant, v. The STATE of Texas, Appellee.
    No. 55795.
    Court of Criminal Appeals of Texas, Panel No. 1.
    May 9, 1979.
    Jack W. Manning, Melvyn Carson Bruder, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Steve Wilen-sky and James G. Walker, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for rape. V.T.C.A., Penal Code, Section 21.02. Indicted for the offense of aggravated rape under V.T.C.A., Penal Code, Section 21.03, the appellant was found guilty by a jury of the lesser included offense and assessed punishment at 20 years’ confinement.

Appellant contends that the court committed reversible error by denying his motion to quash the indictment; he also challenges the sufficiency of the evidence. We affirm.

The prosecutrix testified that on August 8, 1975, at approximately 9 p. m., she was accosted by the appellant while she was walking home from the grocery store near her home. The appellant asked her to assist him in starting his car; the prosecutrix agreed and as the prosecutrix attempted to enter the car, the appellant forced her behind some nearby bushes and raped her.

The appellant testified in his own behalf that the prosecutrix consented to have intercourse with him and that no force or threats were involved.

Prior to trial, the appellant moved to quash the indictment for aggravated rape on the ground that it did not directly specify the person threatened with the imminent infliction of death. Omitting the formal portions, the indictment alleges that the appellant did

“knowingly and intentionally, by force and threats, have sexual intercourse with [the prosecutrix], a female not his wife, without the consent of [the prosecutrix], and did then and there compel [the prose-cutrix] to submit to such act of sexual intercourse by threatening the imminent infliction of death.”

We agree with the appellant’s contention that this indictment was subject to his motion to quash for the reason set forth therein. An indictment for aggravated rape should allege to whom the threat of imminent infliction of death was directed. Childs v. State, 547 S.W.2d 613 (Tex.Cr.App.1977); see also Brem v. State, 571 S.W.2d 314 (Tex.Cr.App.1978). However, we cannot say that the court’s refusal to quash the present indictment warrants a reversal of this case.

Appellant’s motion to quash was aimed at the aggravating feature of the indictment. Appellant was not convicted of aggravated rape, but rather, was convicted for the lesser included offense of rape. Thus, the only possible harm the appellant could have suffered as a result of the court’s error is that the court’s refusal to quash the indictment rendered admissible testimony which otherwise would not have been admissible. See Smith v. State, 76 Tex.Cr.R. 516, 176 S.W. 49 (1915). However, appellant was not so harmed in the present case. The indictment charged appellant with committing rape by force and threats under Section 21.02, supra. The aggravating feature of this indictment charged that appellant threatened the “imminent infliction of death.” Section 21.03, supra. Therefore, testimony concerning any type of threat made by the appellant in order to effect his criminal design would have been admissible to establish the plain offense of rape by “force and threats.” Appellant’s first ground of error is overruled.

We next consider appellant’s second contention in which he argues that the evidence is insufficient to show “that the pros-ecutrix submitted to sexual intercourse with the defendant because of any threat of the imminent infliction of death.” As we understand it, appellant is arguing that the State failed to prove beyond a reasonable doubt the aggravating circumstances of this offense. We agree, and apparently so did the jury, for it convicted the appellant of the offense of rape and not aggravated rape. Appellant’s second contention is overruled.

The judgment is affirmed.

      . Section 21.03, supra, provides, in relevant part, that:
      “(a) A person commits an offense if he commits rape as defined in Section 21.02 of this code . . . and he:
      * * * * * *
      “(2) compels submission to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone.” (Emphasis supplied.)


author: DALLY, Judge.

text:
    Cleveland BEECHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 57984.
    Court of Criminal Appeals of Texas, Panel No. 2.
    May 9, 1979.

      Howard G. Wilson, Mesquite, for appellant.
    Henry M. Wade, Dist. Atty., John H. Hagler and Rider Scott, Asst. Dist. Attys., Dallas, 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 murder; punishment was assessed by the court at imprisonment for fifteen years.

Appellant contends that the trial court erred when it excluded the testimony of two defense witnesses regarding the reputation of the deceased for being a man of violent and dangerous character, and when it refused to allow a witness to testify who had violated the rule.

The appellant shot and killed Wade Smith, the deceased, at a service station in Dallas. The deceased’s girlfriend, Reater Thompson, testified that she and the deceased and appellant were sitting in the cab of the appellant’s pickup when the deceased and appellant began arguing and “cussing” each other. Appellant got out of the pickup and jerked Thompson out of the pickup with such strength that she fell to the ground. Appellant continued to quarrel with the deceased, and as Thompson got up off the ground she heard a shot and saw that appellant had shot the deceased in the head.

Appellant admitted shooting the deceased, but testified that when he pulled Thompson out of the truck the deceased tried to take the keys out of the ignition switch, hit appellant, and put his hand into his back pocket as though reaching for a weapon. Appellant also testified that two months previously the deceased had pointed a shotgun at him in anger, that earlier on the day of the offense he witnessed the deceased chase a man with a butcher knife, and that he feared the deceased. The trial court charged the jury on self-defense and the use of deadly force to protect movable property.

Appellant called two witnesses, Willie James Allen and Sandy Hankins, to testify as to the deceased’s general reputation in the community for being a man of violent and dangerous character. Both testified that the deceased’s reputation in that respect was bad. On cross-examination the State elicited from both witnesses that their testimony was not based on what they had heard from the other members of the community, but on their personal knowledge and opinion of the deceased. The State objected in each case and moved to have the witnesses’ testimony stricken because they were not qualified as reputation witnesses. The trial court sustained the State’s objections and instructed the jury to disregard the testimony of the witnesses regarding the reputation of the deceased. Appellant contends that the witnesses’ testimony was admissible to show the deceased’s violent and dangerous character.

The general reputation of the deceased as a violent and dangerous character and specific acts of violence or misconduct of the deceased which show his violent character are admissible in a homicide case where there is evidence of some act of aggression by the deceased which gives rise to a claim of self-defense on the part of the defendant. Dempsey v. State, 159 Tex.Cr.R. 602, 266 S.W.2d 875 (1954); West v. State, 154 Tex.Cr.R. 502, 229 S.W.2d 623 (1950); Henry v. State, 151 Tex.Cr.R. 284, 207 S.W.2d 76 (1947); Meeks v. State, 135 Tex.Cr.R. 170, 117 S.W.2d 454 (1938); 4 Branch’s Ann.P.C., 2d ed., Sec. 2238, p. 597. If offered to show the reasonableness of the defendant’s claim of apprehension of danger, it must be shown that the acts of violence were known to the defendant at the time of the homicide; if offered to show that the deceased was in fact the aggressor, the witness must know, but the defendant need not have known of the violent acts at the time of the homicide. Dempsey v. State, supra; Lewis v. State, 463 S.W.2d 186 (Tex. Cr.App. 1971).

Defense counsel did not inquire into the deceased’s violent character by asking the witnesses Allen and Hankins if they knew of specific acts of violence on the part of the deceased. Counsel asked the witnesses if they knew the “general reputation of Wade Smith in the community in which he resided and among those who knew him best for being a man of violent or dangerous character.” In order to show that a person’s general reputation for peaceableness in the community is bad, it is necessary to qualify the witness by showing that he is acquainted with the person’s reputation in the community. See Weatherall v. State, 159 Tex.Cr.R. 415, 264 S.W.2d 429 (1954); West v. State, 137 Tex.Cr.R. 554, 132 S.W.2d 872 (1939). The reputation testimony cannot be based on the witness’ personal knowledge or opinion of the person or the violent acts which the person has committed; it must be based on what the witness has heard from others. It is of necessity hearsay evidence. Clark v. State, 500 S.W.2d 469 (Tex.Cr.App.1973); Sanchez v. State, 398 S.W.2d 117 (Tex.Cr.App.1965); Weatherall v. State, supra, and the cases there cited. And see generally McCormick on Evidence, 2d ed., Secs. 191, 193. The rule that the deceased’s violent character can be shown does not dispense with the necessity to properly qualify the witness if the witness’ testimony is in the form of reputation testimony. Allen and Hankins were not properly qualified to testify to the deceased’s general reputation in the community for being violent and dangerous. Their testimony as to the deceased’s reputation was properly excluded.

Appellant complains of the trial court’s refusal to permit Melvin Hamit to testify regarding the reputation of the deceased, in violation of the rule. The admissibility of testimony of witnesses who have violated the rule is a matter left to the discretion of the trial court. Barnes v. State, 520 S.W.2d 401 (Tex.Cr.App.1975); Carlile v. State, 451 S.W.2d 511 (Tex.Cr.App.1970). Although the court in its discretion may relax the rule as to character witnesses, see Alston v. State, 170 Tex.Cr.R. 17, 338 S.W.2d 723 (1960), it is not error for the court to refuse to allow such witnesses to testify when they have violated the rule. Pruitt v. State, 98 Tex.Cr.R. 276, 265 S.W. 695 (1924); Bowlin v. State, 93 Tex.Cr.R. 452, 248 S.W. 396 (1923); 1 Branch’s Ann. P.C., 2d ed., Sec. 366. The record in this case does not show that the trial court abused its discretion.

The judgment is affirmed.


author: W. C. DAVIS, Judge.

text:
    Rudolph THOMAS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 59619.
    Court of Criminal Appeals of Texas, Panel No. 1.
    May 9, 1979.
    Leonard M. Roth, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and John S. Holleman, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for three counts of aggravated robbery. Punishment was assessed at ten (10) years confinement in each count.

Although not raised by appellant, we, in the interest of justice, find fundamental error in each count and reverse. In each count, the charge to the jury authorized conviction under every conceivable theory under V.T.C.A. Penal Code, Sec. 29.02 and Sec. 29.03, rather than limiting it to the theories alleged in the indictment.

The three-count indictment alleged, in part, that appellant:

“. . . while in the course of committing theft of money owned by Ella Ray Rawlinson, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a pistol.”

and that he:

“. . . did then and there unlawfully while in the course of committing theft of money owned by Tommy Mead, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a pistol.”

and that he:

“. . . did then and there unlawfully while in the course of committing theft of money owned by Bill Carter, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a pistol.”
The trial court charged the jury:
“Now, if you find from the evidence beyond a reasonable doubt that on or about the 23rd day of February, 1977 in Harris County, Texas, the defendant, Rudolph Thomas, Jr., in the first count of the indictment, with intent to deprive Ella Ray Rawlinson, the owner, of his personal property, to wit, money, belonging to said owner, did unlawfully appropriate or unlawfully attempt to appropriate from Ella Ray Rawlinson said money belonging to Ella Ray Rawlinson, and that the defendant, in so doing, and with intent to obtain or maintain control of said money, then and there intentionally, knowingly, or recklessly caused bodily injury to said Ella Ray Rawlinson or that the defendant then and there intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and if you further find from the evidence beyond a reasonable doubt that the defendant, in committing the foregoing acts, if you do so find, caused serious bodily injury to Ella Ray Rawlinson or that the defendant used or exhibited a deadly weapon, to wit, a pistol, then you will find defendant guilty of aggravated robbery, as charged in the first count of the indictment.”

and,

“Now, if you find from the evidence beyond a reasonable doubt that on or about the 23rd day of February, 1977 in Harris County, Texas, the defendant, Rudolph Thomas, Jr., in the second count of the indictment, with intent to deprive Tommy Mead, the owner, of his personal property, to wit, money, belonging to said owner, did unlawfully appropriate or unlawfully attempt to appropriate from Tommy Mead said money belonging to Tommy Mead, and that the defendant, in so doing, and with intent to obtain or maintain control of said money, then and there intentionally, knowingly, or recklessly caused bodily injury to said Tommy Mead or that the defendant then and there intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and if you further find from the evidence beyond a reasonable doubt that the defendant, in committing the foregoing acts, if you do so find, caused serious bodily injury to Tommy Mead or that the defendant used or exhibited a deadly weapon, to wit, a pistol, then you will find the defendant guilty of aggravated robbery, as charged in the second count of the indictment.”

and,

“Now, if you find from the evidence beyond a reasonable doubt that on or about the 23rd day of February, 1977 in Harris County, Texas, the defendant, Rudolph Thomas, Jr., in the third count of the indictment, with intent to deprive Bill Carter, the owner, of his personal property, to wit, money, belonging to said owner, did unlawfully appropriate or unlawfully attempt to appropriate from Bill Carter said money belonging to Bill Carter, and that the defendant, in so doing, and with intent to obtain or maintain control of said money, then and there intentionally, knowingly, or recklessly caused bodily injury to said Bill Carter or that the defendant then and there intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and if you further find from the evidence beyond a reasonable doubt that the defendant, in committing the foregoing acts, if you do so find, caused serious bodily injury to Bill Carter or that the defendant used or exhibited a deadly weapon, to wit, a pistol, then you will find defendant guilty of aggravated robbery, as charged in the third count of the indictment.”

The indictment in the instant case alleged three counts of robbery under V.T.C.A. Penal Code, Section 29.02(a)(2) by alleging that the appellant intentionally and knowingly threatened and placed the three complainants in fear of imminent bodily injury and death. Each count then alleged the aggravating factor “by using and exhibiting a deadly weapon,” namely, a “pistol.” V.T.C.A. Penal Code, Section 29.03(a)(2).

The instant indictment and charges are practically identical to those in Gooden v. State, 576 S.W.2d 382 (Tex.Cr.App.1979); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977); and Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977). As this Court held in Robinson, and reaffirmed in Gooden,

“This charge authorized the jury to convict the appellant as charged of aggravated robbery if they found, among other things, he intentionally, knowingly or recklessly caused bodily injury to the complainant and if they further found, beyond a reasonable doubt, the appellant caused serious bodily injury to the complainant. This was simply not alleged in the indictment. Further, the charge would have authorized a conviction for aggravated robbery if the jury found he intentionally, knowingly or recklessly caused bodily injury by using and exhibiting a deadly weapon. This was not alleged either. In fact, the charge authorized a conviction under every conceivable theory under V.T.C.A., Penal Code, Section 29.02 and Section 29.03, rather than limiting it to the theory alleged in the indictment.”

In these cases, we held this error in the charge to be fundamental, requiring reversal, even though no objection was made to the charge at trial. In the instant case, no objection to this charge was made, but since the charge authorizes a conviction on theories not charged in the indictment, we find fundamental error.

The judgment is reversed and the cause remanded.


author: DOUGLAS, Judge.

text:
    Ex parte Barbara SEATON
    No. 60760.
    Court of Criminal Appeals of Texas, Panel No. 2.
    May 9, 1979.

      Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

DOUGLAS, Judge.

This is an application for writ of habeas corpus filed pursuant to Article 11.07, V.A. C.C.P.

Barbara Seaton was convicted of theft of a credit card for an act committed on November 28, 1973. Article 1555c of our former Penal Code provided:

“A person who takes a credit card from the person, possession, custody, or control of another without the cardholder’s consent ... is guilty of credit card theft.”

The same article defines “cardholder” as: “[T]he person or organization named on the face of a credit card to whom or for whose benefit the credit card is issued.” The indictment charged that Seaton did:

“. . . knowingly take a credit card from the person, possession and custody and control of Linda Lusk without the consent of the said Linda Lusk.”

There is no allegation concerning who the cardholder was and whether the taking was with or without his consent.

The convicting court, without holding a hearing, granted the writ and entered conclusions of law which, in part, state that the indictment is “fatally defective in that it does not appear that it alleges the essential elements of an offense against the laws of this State.” The court recommended that relief be granted.

An indictment which fails to allege all of the elements of an offense is void. Ex parte Abbey, 574 S.W.2d 104 (Tex.Cr.App.1978); Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976). It may be attacked for the first time by post-conviction writ of habeas corpus. Ex parte Roberts, 522 S.W.2d 461 (Tex.Cr.App.1975).

We agree with the district court that the indictment does not allege all the elements of an offense. Petitioner is entitled to the relief she seeks.

Relief is granted to petitioner; the indictment for theft of a credit card in Cause Number 19,216 is ordered dismissed.


author: TOM G. DAVIS, Judge.

text:
    Andrew Odie STEWART, Appellant, v. The STATE of Texas, Appellee.
    No. 60829.
    Court of Criminal Appeals of Texas, Panel No. 2.
    May 9, 1979.

      Allen C. Isbell, Houston, court appointed on appeal, for appellant.
    Carol S. Vance, Dist. Atty., Calvin A. Hartmann and R. P. Cornelius, Asst. Dist. Attys., Houston, 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 aggravated robbery. Trial was before the jury upon a plea of guilty. Punishment was assessed at twenty years.

At the outset, appellant contends that the trial court erred in failing to admonish appellant as to the range of punishment before the plea of guilty was accepted.

The record reflects that the court out of the presence of the jury made inquiry of appellant if he were pleading guilty because he was guilty, if anyone had promised him anything to induce a plea of guilty, if he had been promised he would “get out lightly or get a pardon . . .,” if the plea had been made “out of any reason of fear or by any type of persuasion whatsoever,” but did not admonish appellant as to the range of punishment for the offense.

Article 26.13(a)(1), V.A.C.C.P. (effective August 29, 1977), provides in pertinent part:

“(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
“(1) the range of punishment attached to the offense; and . . . .”

The failure to admonish a defendant as to the range of punishment constitutes reversible error. Fuller v. State, Tex.Cr.App., 576 S.W.2d 856; McDade v. State, Tex.Cr.App., 562 S.W.2d 487; see Carrillo v. State, Tex.Cr.App., 576 S.W.2d 824.

The State points to the fact that the court charged the jury on the range of punishment and that there is nothing in the record to suggest that appellant was not present when the court read its charge to the jury. Under these circumstances, the State argues no reversible error is shown under our holding in Palacios v. State, Tex.Cr.App., 556 S.W.2d 349. In Palacios, the defendant was fully admonished in accordance with Art. 26.13, supra, after the evidence was in but prior to the charge being read to the jury. This Court concluded that while the admonishment should have been made prior to accepting the plea of guilty, no reversible error was shown. Palacios is distinguishable from the instant case. The fact that the range of punishment is included in the court’s charge cannot be held to substitute for the requirement under Art. 26.13, supra, that a defendant be admonished as to the range of punishment attached to the offense.

The judgment is reversed and the cause remanded.

      . Trial was on May 23, 1978.