text:
    Virgil Rudolph STONE, Appellant, v. The STATE of Texas, Appellee.
    No. 51578.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 30, 1979.
    Rehearing En Banc Denied July 18, 1979.

      Donald W. Rogers, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Alvin M. Titus and Timothy P. Alexander, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

DOUGLAS, Judge.

Appellant was convicted for the offense of assault with intent to commit rape under the former Penal Code, Article 1162. The jury assessed his punishment at five years.

On the evening of June 18, 1973, the complainant answered her door and was confronted by appellant who displayed a police badge and requested admittance. She complied. Once inside, appellant threatened her with a pistol, ordered her to disrobe and said he intended to rape her. The complainant removed her pants and appellant took off his as well. Complainant then asked if she could turn off the lights and stereo and appellant agreed. After turning off the lights, the complainant escaped through a back door and ran to a neighbor’s house to summon help. Almost immediately thereafter, the complainant’s husband arrived home and found appellant alone in the living room dressing. Appellant threatened him with the pistol and left the scene.

At the trial appellant took the stand and admitted being at the house on the night in question. He testified that he had been told that the complainant “was an easy lay,” and that she had invited him in, consented to intercourse but ran from the house when her husband arrived. He also testified that he had displayed neither a badge nor handgun.

Initially, appellant contends that his oral confession was improperly admitted in violation of Article 38.22, V.A.C.C.P.

The record reflects that appellant was interviewed by the police at his home and the police station. After the second interview, he requested a polygraph test. On June 21, 1973, he arrived at the Houston police station, was warned by a magistrate pursuant to Article 15.17, V.A.C.C.P., and administered a polygraph test. He was later informed that he had failed the test and that he “probably” would be charged. He was not, however, arrested at that time nor told that he could not leave.

F. 0. Boulton, Jr. was investigating the incident on behalf of appellant’s employer. He testified that appellant confessed to him at the police station and that he had previously agreed to and did relate the details of the confession to the police. After more questioning by the police appellant was arrested and charged with the offense.

Article 38.22, supra, provided at the time of the trial that:

“(a) The confession shall not be admissible if the defendant was in jail or other place of confinement or in custody of an officer at the time it was made, unless:
“3. In connection with said confession he makes statement of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed, such statement shall not be admitted in evidence, unless it is witnessed by some person other than a peace officer, who shall sign the same as a witness.” (Emphasis supplied)

No tangible evidence was discovered as a result of the confession. Consequently, the issue before us is whether appellant was “in custody” at the time he made his oral confession.

The instant case is similar to Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), in which the Supreme Court of the United States retreated from the sweeping language of Miranda. In Mathiason, the defendant, a parolee, voluntarily went to the police station after being requested to do so. Once at the station he was escorted into an office and told by an officer that, although he was not under arrest, the police believed that he had been involved in a burglary. The officer falsely stated that his fingerprints were found at the scene and that his truthfulness would possibly be considered by the district attorney or judge. During the interrogation the office door was closed and a police radio in another room could be heard. The Supreme Court held that, since the defendant voluntarily came to the police station and was informed that he was not under arrest, he was not in custody “or otherwise deprived of his freedom of action in any significant way.”

“Such a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a ‘coercive environment.’ Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime.”

The Court went on to hold that even the false statement as to the defendant’s fingerprints had nothing to do with whether he was in custody. See Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976); Hunter v. State, 590 P.2d 888 (Alaska, 1979), 24 Cr.L. 2514.

Another case closely in point is Hunter v. State, supra. There the defendant had been questioned at his home by police officers twice before and was the prime suspect. He was asked to submit to a polygraph test and he went to the police station on his own for the test. No Miranda warnings were given before the test, and the defendant stated he felt that he “had” to take the test. During the test the polygraph operator told the defendant that he was not telling the truth. After the test ended, he confessed. The Alaska Supreme Court held that the defendant was not in custody and adopted the objective standard for determining custody which requires “some actual indication of custody, such that a reasonable person would feel he was not free to leave and break off police [interrogation].”

This Court has also rejected the “focus” rule as the test for custody. See Scott v. State, 571 S.W.2d 893 (Tex.Cr.App.1978); Lovel v. State, 538 S.W.2d 630 (Tex.Cr.App.1976); Allen v. State, 536 S.W.2d 364 (Tex.Cr.App.1976); Bailey v. State, 532 S.W.2d 316 (Tex.Cr.App.1975).

In the case at bar, appellant had been interviewed by police officers twice before the day in question, at his home and the police station. On each of these occasions he had been allowed to leave. On the day of his confession, appellant went to the police station voluntarily and in his own car. He received warnings pursuant to Article 15.17, V.A.C.C.P., and was given a polygraph test. After the test was administered, appellant was advised that he had failed it and that he would “probably” be charged; however, at no time prior to the confession was appellant placed under arrest, told he was under arrest nor told that he could not leave the police station as he had done previously.

In short, based on the rationale of Mathi-ason, supra, and the cases cited above, appellant was not in custody at the time he made his confession. Consequently, the trial court did not err in admitting it under Article 38.22, supra, as it read at the time of trial.

The findings of fact and conclusions of law filed by the trial court should not be disturbed absent a clear abuse of discretion. Williams v. State, 566 S.W.2d 919 (Tex.Cr.App.1978); McKittrick v. State, 541 S.W.2d 177 (Tex.Cr.App.1976). None is shown here.

Next, appellant contends that the trial court improperly allowed the State to bolster the testimony of Boulton by asking a defense witness on cross-examination about Boulton’s reputation for truth and veracity.

The following exchange occurred during the State’s cross-examination of a defense witness:

“Q. (By Mr. Alexander) Mr. Barrow, are you familiar with a person named F. 0. Boulton?
“A. Yes.
“Q. How do you know him?
“A. He’s a security person with the telephone company.
“Q. Does he work in your office?
“A. No.
“Q. Have you been associated close with him during the course of your employment?
“A. No.
“Q. How do you know him then?
“A. Only investigation of thefts and things of that nature with the telephone company.
“Q. Do you know Mr. Boulton’s reputation in the community in which he resides for being a truthful person?
“A. Yes.
“MR. ROGERS: Objection, Your Honor. He’s attempting to bolster his own witness and I’d like to take him on voir dire examination.
“VOIR DIRE EXAMINATION
“Q. (By Mr. Rogers) Sir, have you ever discussed with anyone Mr. Boulton’s reputation as a truthful person or heard anything about whether he’s truthful or not?
“A. I have heard just assumptions, not anything that was fact.
“Q. Have you actually conversed with anyone concerning Mr. Boulton?
“A. No.
“MR. ROGERS: Your Honor, we’d submit the witness is not qualified to state an opinion as to Mr. Boulton’s character, truth and veracity.
“THE COURT: It goes with the weight of the testimony, admissibility. Overrule the objection.”

The objection was late; there is no showing that he did not have an opportunity to object earlier.

Appellant also contends it was reversible error for the trial court to allow Officer W. F. Hoch to testify to his conclusion or opinion as to whether the complainant was fabricating her story when he talked to her at the scene of the crime because this was improper bolstering.

During cross-examination of Officer Hoch by the prosecution the following exchange occurred:

“Q. Did it appear to you she was fabricating as she told you this event?
“MR. ROGERS: Objection. That invades the province of the jury.
“THE COURT: Overruled.
“MR. ROGERS: Your Honor, if I may, it’s also a conclusion on the part of the witness.
“THE COURT: It’s on cross examination. Overruled.
“MR. ROGERS: Please note our exception.
“Q. (By Mr. Alexander) You may answer the question. Officer, had she had time to make up a story before she told you about it?
“A. No, sir.
“Q. Did it appear to you she was fabricating a story as she gave it to you there?
“A. No, sir.
“MR. ROGERS: I object again as a conclusion, he’s bolstering his witness, it’s also invading the province of the jury to determine the truth. It’s his opinion as to her telling the truth. It’s not admissible.
“THE COURT: Overruled.”

It is well settled that the ground raised on appeal must comport to the objection at the trial and that such objection must be timely made. In the instant case the defense attorney raises the issue of improper bolstering on appeal.

The record shows, however, that the witness had already answered the questions before the objections were made. This Court has consistently held that an objection must be made as soon as the ground of objection becomes apparent. Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1976), cert. denied 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250; Forbes v. State, 513 S.W.2d 72 (Tex.Cr.App.1974), cert. denied 420 U.S. 910, 95 S.Ct. 830, 42 L.Ed.2d 840; Howe v. State, 380 S.W.2d 616 (Tex.Cr.App.1964). To avoid waiver it is incumbent upon the defendant to show good reason for failure to timely object. Patterson v. State, 509 S.W.2d 857 (Tex.Cr.App.1974); Hendrix v. State, 474 S.W.2d 230 (Tex.Cr.App.1971); James v. State, 169 Tex.Cr.R. 526, 335 S.W.2d 603 (1960). Appellant has not shown good reason for his failure to timely object; therefore, any error is waived.

In his fifth ground of error, appellant alleges he was denied due process because of a material misrepresentation and suppression of evidence by the prosecution in connection with prior inconsistent statements made by the complainant to Houston Police Officer W. F. Hoch.

Specifically, appellant contends that although he was aware of the prior inconsistent statements by complainant he was not aware of subsequent reaffirmations contained in a police report.

In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Supreme Court held that:

“. . . unless the omission deprived the defendant of a fair trial, there was no constitutional violation requiring that the verdict be set aside; and absent a constitutional violation, there was no breach of the prosecutor’s constitutional duty to disclose.
U * * *
“The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.”

The Court stated that the test for materiality imposes a higher burden on the defendant than the harmless error standard. In determining materiality, the omission must be “evaluated in the context of the entire record,” and constitutional error is committed only “if the omitted evidence creates a reasonable doubt that did not otherwise exist.” See Comment, Materiality and Defense Requests: Aids in Defining the Prosecutor’s Duty of Disclosure, 59 Iowa L.Rev. 433, 445 (1973); Comment, Brady v. Maryland and The Prosecutor’s Duty to Disclose, 40 U.Chi.L.Rev. 112, 125 (1972).

The record reflects that neither the complainant nor her husband gave written statements to the police. The police report appellant sought contained a rendition of complainant’s story and in it she allegedly told the police that as she was running from the house she “thought” she heard someone else in the house and, once outside, she observed what “appeared” to be her husband’s car. Appellant, however, had told her he had taken care of her husband so she ran to a neighbor’s house. At the trial she testified that she did not presently recall seeing a car or hearing someone in the house because she was too frightened. The portion of the report appellant requested was not that part pertaining to her statements as to the car and hearing another person in the house because defense counsel had already read the original offense report setting these out and introduced direct testimony of Officer W. F. Hoch to prove she had made the prior statements. Appellant’s request went only to later progress reports which merely noted that both complainants subsequently “related the same as in the original report.”

After a careful evaluation of the record, we hold that although the notations contained in the record may have aided defense the omissions are not so material as to create “a reasonable doubt that did not otherwise exist.” United States v. Agurs, supra.

As to the testimony of Officer Hoch on cross-examination by the State to the effect that the statements attributed to the complainant in the original report could have been reported incorrectly for any number of reasons, the actions of the prosecutor in eliciting this testimony from a defense witness did not constitute a knowing or negligent misrepresentation of material facts, nor a failure to correct false testimony.

Next, appellant alleges that the trial court erroneously refused to require the State to produce the statements of the complainant and her husband for cross-examination in violation of Gaskin v. State, 353 S.W.2d 467 (Tex.Cr.App.1962), and Zanders v. State, 480 S.W.2d 708 (Tex.Cr.App.1972).

The record clearly shows that neither the complainant nor her husband made any written statements to the police or State. Therefore, the rules pronounced in Gaskin and Zanders are inapplicable. Moreover, since defense counsel had read the police report prior to trial and was aware of the witness’ statements, no harm is shown. See Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1976); Ogle v. State, 548 S.W.2d 360 (Tex.Cr.App.1976). See also Norman v. State, 575 S.W.2d 34 (Tex.Cr.App.1979). Grounds of error six and seven are overruled.

Complaint is made that the State asked a “have you heard” question of appellant’s reputation or character witness in bad faith.

The question asked the defense character witness was whether he had heard that appellant had been arrested for the rape and robbery of one D_H_

It is well settled that “have you heard” questions, proper in form, may be asked by the State to test the witness’ knowledge if the prosecutor asks the question in good faith believing it has some basis in fact. McIlveen v. State, 559 S.W.2d 815 (Tex.Cr.App.1977); Sternlight v. State, 540 S.W.2d 704 (Tex.Cr.App.1976); Pearce v. State, 513 S.W.2d 539 (Tex.Cr.App.1974).

In the instant case the State produced an investigation report with the victim’s name, D_H_, listed under “name of complainant.” The report also noted that appellant had been “arrested and released.” We hold that these facts were sufficient indicia to show good faith on the part of the State in asking the question.

Ground of error nine alleges that the trial court erred in overruling appellant’s objection to an argument by the State which was outside of the record. During argument at the guilt-innocence stage, the prosecutor said:

“Now, Gary Hardy’s testimony was for the most part corroborating her story. Of course, there’s a few discrepancies. It’s kind of an unusual event for a man to come home, see lights on, walk up to turn them off and here’s a guy on the couch with his pants down and your wife has just run out the door.”

Appellant objected that the State was arguing outside of the record because the witness had testified that appellant was tucking in his shirt when he arrived. The court instructed the jury that they had heard the evidence and “will determine what the facts are.”

This was sufficient to cure any error. See Givens v. State, 554 S.W.2d 199 (Tex.Cr.App.1977); Torres v. State, 552 S.W.2d 821 (Tex.Cr.App.1977); Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976).

Appellant complains that the following argument by the State was improper:

“MR. ALEXANDER: I agree, I could have called them, too. I will tell Mr. Rogers why I didn’t. I didn’t call them because I don’t believe their testimony. I don’t believe they told this defendant she was a woman of loose character. I believe there was a lot of talk about a woman somewhere.”

Prior to this, defense counsel had argued:

“Virgil Stone then took the stand after the State rested. I’m not going to go into his testimony in great lengths. You have heard what he stated. Basically he told you that he was managing a store, Brake Check store off the Gulf Freeway, that at the time of his particular incident he worked for Southwestern Bell; that he had had conversations with certain persons with the telephone company concerning K. S. H. He mentioned several names, I believe Kerry Horstmann, T. 0. Bates and Hill something or another, Hillman. Now, you’ve not had the benefit of their testimony. They were neither called by the State or by the defense. I wish we could have called them, but unfortunately we didn’t. So we don’t know what was actually told Stone as far as K. S. H. He said he had heard about her.”

It is apparent that the argument by the prosecutor was invited and was in response to the prior statements of defense counsel. See Jones v. State, 520 S.W.2d 755 (Tex.Cr.App.1975); Hurd v. State, 513 S.W.2d 936 (Tex.Cr.App.1974). No reversible error is shown.

Appellant next asserts that the trial court erred in overruling his objection to the State’s argument wherein it sought to bolster its witness’ testimony by stating that they are all truthful.

The State argued the following:

“MR. ALEXANDER: Well, we will never know what those three men would have testified to. I have just told you why I didn’t call them. I don’t like' to call any witness I don’t believe is going to tell the truth, because that’s the point of a jury trial.”

This line of argument was invited by and in response to the argument of defense counsel noted above. We are unable to say that it was such as to mandate a reversal of the judgment. See Brown v. State, 535 S.W.2d 640 (Tex.Cr.App.1976).

Finally, complaint is made of the following argument by the State:

“. . . I guess everybody in this thing is in a big conspiracy to convict this defendant. I’m suggesting I’m conspiring to do my job. If that means putting him in the penitentiary, I plead guilty to that, because I think that is proper.”

The complained of argument was a plea for law enforcement and as such was not improper. See Rodriquez v. State, 552 S.W.2d 451 (Tex.Cr.App.1977); McCall v. State, 540 S.W.2d 717 (Tex.Cr.App.1976); Hostetter v. State, 527 S.W.2d 544 (Tex.Cr.App.1975).

Finding no reversible error, the judgment is affirmed.

ROBERTS, Judge,

dissenting.

I dissent to the majority’s holding that the appellant was not “in custody” at the time he made the incriminating oral statement to Boulton. In arriving at its conclusion, the majority has misinterpreted the decisions of both this Court and the United States Supreme Court.

Article 38.22, Vernon’s Ann.C.C.P., as effective at the time appellant made his oral confession, allowed inter alia the admission of voluntary oral statements made while in custody subsequently found to be true that resulted in the discovery of any tangible evidence conducing to establish the accused’s guilt. The purpose and effect of this statute was to prevent the State from using against the accused inculpatory oral statements made by the accused while under arrest or in custody because such statements are often unreliable. Harrison v. State, 556 S.W.2d 811 (Tex.Cr.App.1977). Thus, Article 38.22, supra, was enacted as an effort to insure the accuracy and reliability of oral statements made while one is in custody or under arrest. It is uncontested in the present case that the appellant’s oral statement to Boulton did not lead to tangible evidence of his guilt; therefore, the determinative question in the present case is whether or not the appellant was “in custody” at the time he made the statement.

The majority relies on the Supreme Court’s decision in Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), as authority for its holding that the appellant was not “in custody.” Unlike the majority, I would not view Oregon v. Mathiason, supra, as a retreat from the basic constitutional principles enunciated in Miranda v. Arizona, but rather as an elucidation of those principles.

It must be initially observed that any determination of whether or not a person is “in custody” at the time he makes an incriminating statement invariably rests on the reviewing court’s subjective interpretation of the circumstances under which the statement was made. Therefore, this determination must necessarily be made on a case-by-case basis and in light of the totality of the circumstances which existed at the time of the person’s encounter with the police. Ancira v. State, 516 S.W.2d 924 (Tex.Cr.App.1974).

In Oregon v. Mathiason, supra, the Court held that since the defendant was not “in custody” under the facts of the case the police were not required to give Miranda warnings prior to the time the defendant confessed that he had stolen the property in question. The objective “facts” which led the Court to this conclusion were as follows: The police officer left a note at the defendant’s apartment asking the defendant to call him. When he arrived home, the defendant called the officer and the two mutually agreed to meet at the state patrol office which was two blocks away from the defendant’s apartment. When the defendant arrived, the officer shook hands with him, told him that he was not under arrest, and took him into an office and closed the door. After the officer falsely stated that the defendant’s fingerprints had been found at the scene, the defendant confessed to taking the property in question. The defendant was then permitted to leave. Under these facts the Court found that the defendant’s “. . . freedom to depart was [not] restricted in any way. He came voluntarily to the police station, where he was immediately informed that he was not under arrest. At the close of the ½-hour interview [defendant] did in fact leave the police station without hindrance. It is clear from these facts that Mathiason was not in custody ‘or otherwise deprived of his freedom of action in any significant way.’ ” Ibid at 429 U.S. 495, 97 S.Ct. 714.

It is this writer’s opinion that the present case is clearly distinguishable on the facts from Oregon v. Mathiason, supra, relied on by the majority. In the present case, the appellant was summoned to the police station by investigating officers for the purpose of questioning him concerning the offense. When he met the officers at the police station, the appellant was taken before a magistrate and given his statutory warnings pursuant to Article 15.17, Vernon’s Ann.C.C.P. He was then administered a polygraph test and subsequently told that he had failed and would probably be charged with the offense; he was then told to go wait alone inside a room at the police station. It was after these events had transpired that appellant gave the incriminating oral statement to Boulton. Immediately thereafter, appellant was formally arrested and placed in jail.

Officer Young’s testimony that the appellant was not in custody while he was questioned inside the room at the police station by Boulton is belied by the facts of the case. If the appellant had not been “in custody” or under arrest at the time he arrived at the police station, why else then was he administered the warning pursuant to Article 15.17, supra, which enumerates the duties of the arresting officer and magistrate? If the appellant was not “in custody” at the time he was questioned by Boul-ton, why else then was he held in the room at the police station after he was told that he had failed the polygraph test and would probably be charged with the offense? When the appellant was told by the officers to wait in the room at the police station his liberty of movement was restricted; this constitutes an arrest. “It is not the actual physical taking into custody that will constitute an arrest. An arrest is complete whenever a person’s liberty of movement is restricted or restrained.” Maldonado v. State, 528 S.W.2d 234 (Tex.Cr.App.1975); Hardinge v. State, 500 S.W.2d 870 (Tex.Cr.App.1973). At the very least, at the time he was questioned by Boulton, the appellant had been significantly deprived of his freedom of action. Miranda v. Arizona, supra; Oregon v. Mathiason, supra.

It must be recognized that any confrontation with a police officer has some coercive aspects to it and that not every such confrontation constitutes custodial interrogation. Oregon v. Mathiason, supra. But when the accused’s encounter with the police is accompanied by a restriction in his liberty of movement, the accused is “in custody” and, under the provisions of Article 38.22, supra, any incriminating oral statement made thereafter must subsequently prove to be true and lead to tangible evidence of guilt.

Nor can I agree with the majority’s conclusion that this Court has rejected the “focus” rule as a test for determining when an accused has been placed in custody. Bailey v. State, 532 S.W.2d 316 (Tex.Cr.App.1975) does not support this conclusion, as contended by the majority. In Bailey, the defendant voluntarily returned to the scene of the offense and initiated the conversation with the investigating officers which led to the incriminating oral statement which he later sought to exclude as evidence at trial. The investigating officers testified that at the time the defendant made the incriminating statement he and two other persons were suspects in the case and that the investigation had not yet narrowed on the defendant. In concluding that this was not a custodial interrogation and that Miranda did not apply, we held:

“As stated in Ancira v. State, Tex.Cr.App., 516 S.W.2d 924, the factor in determining the voluntariness of a statement which has consistently impressed us is ‘whether or not the focus of the investigation has finally centered on the defendant.’ Aneira, p. 927. . . . The fact that appellant had been free to go and had chosen to return in order to speak with Captain Edge removes this case from the proscription of Miranda. Had police officers begun to focus their investigation on the appellant after he had inaugurated the conversation, we would be faced with different problems.”

Thus, in Bailey v. State, supra, this Court has reaffirmed the “focus” test which the majority erroneously believes we have abandoned. Likewise, the cases of Scott v. State, 571 S.W.2d 893 (Tex.Cr.App.1978); Ford v. State, 538 S.W.2d 633 (Tex.Cr.App.1976), and Allen v. State, 536 S.W.2d 364 (Tex.Cr.App.1976), all cited by the majority, do not support the majority’s conclusion.

I would conclude that under the standards announced by Miranda and its progeny the appellant was clearly “in custody” at the time he orally confessed to Boulton, and further, that this confession did not lead to tangible evidence conducing to establish the appellant’s guilt. Therefore, the oral statement was inadmissible under the provisions of Article 38.22, supra, as it existed at that time.

The judgment should be reversed and the cause remanded.

      . In an unpublished per curiam opinion delivered September 15, 1976, we abated this appeal in order to permit the trial court to enter findings of fact concerning the admissibility of appellant’s oral confession. The findings are now before us and the appeal has been ordered reinstated.

      . Boulton testified that the appellant admitted that he went to the complainant’s house armed with a pistol and with the intent to have intercourse with her; appellant also told Boulton that after he left the complainant’s house he disposed of the gun by throwing it in a bayou.

      . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . “Art. 15.17. Duties of arresting officer and magistrate
      “In each case enumerated in this Code, the person making the arrest shall without unnecessary delay take the person arrested or have him taken before some magistrate of the county where the accused was arrested. The magistrate shall inform in clear language the person arrested of the accusation against him and of any affidavit filed therewith, of his right to retain counsel, of his right to remain silent, of his right to have an attorney present during any interview with peace officers or attorneys representing the state, of his right to terminate the interview at any time, of his right to request the appointment of counsel if he is indigent and cannot afford counsel, and of his right to have an examining trial. He shall also inform the person arrested that he is not required to make a statement and that, any statement made by him may be used against him. The magistrate shall allow the person arrested reasonable time and opportunity to consult counsel and shall admit the person arrested to bail if allowed by law.”


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    Ex parte Ronnie Lawrence HARRIS.
    No. 61630.
    Court of Criminal Appeals of Texas, En Banc.
    July 3, 1979.

      Richard J. Jauma, Huntsville, Richard L. Griffin, Denton, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is a post-conviction felony habeas corpus application brought pursuant to Article 11.07, V.A.C.C.P.

On January 26, 1973, petitioner entered pleas of guilty and was convicted and sentenced in causes number C-72-7766-MHN and C-72-7767-MHN in the 195th Judicial District Court of Dallas County. The conviction in cause C-72-7766-MHN was for assault with intent to commit robbery, and punishment was assessed at ten years. The other conviction was for murder and punishment was assessed at forty years. The conviction for the assault with intent to commit robbery occurred before the murder conviction. No appeal was taken in either case. Petitioner challenges the murder conviction as a violation of the carving doctrine and the double jeopardy protections of the United States and Texas Constitutions.

In Ex parte Calderon, Tex.Cr.App., 508 S.W.2d 360, the Court wrote:

“Under the doctrine of carving, if a continuous assault is made on the same person in the same transaction, the State can carve but one conviction out of the event. See 1 Branch’s Ann.P.C., 2nd ed., Sec. 654, p. 625.
“In Duckett v. State, 454 S.W.2d 755 (Tex.Cr.App.1970), this Court stated:
“ ‘The inhibition against double jeopardy is determined by the facts and circumstances and not by the name of the offense. The record before us in the case at bar portrays a definite illustration of the application of the principle that when one has been convicted, the State cannot, upon the same evidence, again convict him of the same act. The proof is conclusive that in appellant’s conviction fob assault to murder he was convicted of the same transaction and upon the same evidence as that upon which he was earlier convicted of the offense of robbery by assault with a firearm.’ ”

In the instant case, the two offenses were committed against the same person. Petitioner and another entered a liquor store to commit a robbery. When they pulled their guns on the victim, he fled and was shot. This was the basis for both convictions. This was a continuous assault on the same person in a single transaction. Compare these facts with those presented in Ex parte Olson, Tex.Cr.App., 560 S.W.2d 688; Ex parte Birl, Tex.Cr.App., 545 S.W.2d 169; Ex parte Jewel, Tex.Cr.App., 535 S.W.2d 362. Cf. Lamberson v. State, 509 S.W.2d 328.

Because petitioner was first convicted in cause number C-72-7766-MHN, the subsequent conviction in cause C-72 — 7767-MHN was barred under the double jeopardy clauses of the United States and Texas Constitutions. Petitioner’s conviction in cause C-72-7767-MHN in the 195th Judicial District Court of Dallas County is therefore declared void and set aside, and petitioner is ordered discharged from any further confinement pursuant to that void conviction. A copy of this opinion will be sent to the Texas Department of Corrections.

It is so ordered.

      . The judgments and sentences reflect different dates for the two convictions, but the transcribed court reporter’s notes from the proceeding reflect they were had on the same date. In either event, the same sequence is reflected.


author: CLAYTON, Justice.

text:
    MID COUNTY RENTAL SERVICE, INC., et al., Appellants, v. MINER-DEDERICK CONSTRUCTION CORP., Appellee.
    No. 8174.
    Court of Civil Appeals of Texas, Beaumon.
    Feb. 8, 1979.
    Rehearing Denied April 5, 1979.

      John L. Fulbright, Beaumont, for appellants.
    Robert Q. Keith, Beaumont, for appellee.
   CLAYTON, Justice.

Appellee, Miner-Dederick Construction Corporation (defendant and cross-plaintiff below) was the general or prime contractor to construct a library building and certain related works for the Lamar University in Beaumont, Texas. Appellee entered into three separate subcontracts with appellants, Mid-County Rental Service, Inc. and Alton M. Stewart (plaintiffs and cross-defendants below) relating to certain portions of the work. Appellants filed suit against appel-lee to recover for “extras,” attorney fees and the balance due under the three subcontracts. Appellee answered and filed a cross-action and also sued United States Fidelity & Guaranty Company (USF&G) upon the performance bond and payment bond executed by it as surety. The cross-action filed by appellee against appellants was based upon a breach of the three subcontracts and sought damages for the amount appellee was required to expend to complete the work called for by the subcontracts.

A jury trial resulted in findings to special issues that appellants did not substantially perform subcontracts one and three; that appellants performed “extras” the value of which was $2,090.64; that $700 was reasonable attorney fees; that appellants breached the subcontracts in question; that appellants willfully, intentionally, “or” in bad faith failed to substantially perform the contracts in question; that appellee “was damaged” because of such breach of contract; that the amount of damages for such breach was “none” as to each contract; and that the appellee was obligated to pay to persons who furnished labor or materials for use by appellants on the contracts the amount of $10,000.

The appellants’ “Motion for Judgment” and to disregard answers to certain special issues was overruled by the trial court, and judgment was entered for appellee and against appellants and USF&G, jointly and severally, for $7,203.36. The amount of the judgment was apparently determined by deducting the amount of extras and attorney fees found by the jury in favor of appellants from the amount found in favor of appellee. From this judgment appellants and USF&G have appealed.

Appellants and USF&G urge “no evidence” points as to the trial court’s action in overruling its motion to disregard the jury’s answer to Special Issue No. 10 and in rendering judgment for appellee based thereon.

In deciding a “no evidence” question, we must consider only the evidence and the inferences tending to support the findings and disregard all evidence and inferences to the contrary. Lucas v. Hartford Accident & Indemnity Co., 552 S.W.2d 796, 797 (Tex.1977); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

Special Issue No. 10 inquired of the jury the reasonable sum of money appellee “paid or became obligated to pay” to persons and firms who furnished labor and materials for use by appellants on the contracts in question, and in response thereto the jury answered $10,000. We construe the words “became obligated to pay” to be equivalent to “legally obligated to pay.” To make a determination of the money which appellee became legally obligated to pay we must review the transactions conducted between all the parties.

Appellee was the general contractor for the construction of a library building for Lamar University, which was a “public works” contract within the meaning of Tex. Rev.Civ.Stat.Ann. art. 5160 (Vernon 1971 and Supp.1978). Appellee entered into three separate subcontracts with appellants to perform certain work. Under each subcontract appellants furnished a performance bond and a payment bond, with USF&G as sureties thereon. Each performance bond and payment bond, in addition to the general terms, expressly provides:

“PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Article 5160 of the Revised Civil Statutes of Texas . . . and all liabilities on this bond shall be determined in accordance with the provisions of said article to the same extent as if it were copied at length herein.”

Unquestionably, the provisions of Article 5160 were incorporated into and made a part of the bonds, and the bonds expressly, state that all liabilities on each bond “shall be determined in accordance with the provisions of art. 5160.”

The question before us is whether or not the $10,000 as found by the jury constituted a legal obligation or liability on the part of appellee. It is undisputed that appellants owed the aggregate sum of $10,000 to three suppliers for materials furnished and labor performed in connection with the work to be done by appellants pursuant to their contract with appellee. It is further undisputed that the claims of the suppliers were not paid by appellants. Appellee urges that it was legally obligated to pay the suppliers for the amount due them by appellants, and therefore appellee was entitled to recover from appellants such sums. It is undisputed that the suppliers did not timely give appellee notice of their claims pursuant to the provision of art. 5160. Appellee argues the notice requirements of art. 5160 are not necessary, but, if such notices are required, then there was a substantial compliance with the notice requirements of art. 5160.

The provisions of art. 5160 are applicable to the establishment of liability on the part of the general contractor as well as to liability on the part of the surety on its payment bond and performance bond. The statute provides the procedure and remedy for presenting a claim. It has been held that the statute is mandatory as well as exclusive; that it must be complied with in all respects or a cause of action under it is not maintainable. Therefore, a claimant must follow the procedures provided therein. Employers’ Liability Assurance Corp. v. Young County Lumber Co., 122 Tex. 647, 64 S.W.2d 339 (1933); Fidelity & Deposit Co. v. Big Three Welding Equipment Co., 151 Tex. 278, 249 S.W.2d 183 (1952); Bunch Electric Co. v. Tex-Craft Builders, Inc., 480 S.W.2d 42 (Tex.Civ.App.—Tyler 1972, no writ). As stated by the court in Bunch Electric Co. v. Tex-Craft Builders, Inc., supra: “The requirement of notice ... is not a mere statute of limitation, but is a substantive condition precedent to the existence of the cause of action,” citing General Casualty Co. of America v. United States, 205 F.2d 753, 755 (5th Cir. 1953). It is undisputed that the suppliers in the case at bar did not have a direct contractual relationship with a prime contractor. It is clearly held in Keetch Metal Works of Dallas, Inc. v. Yates, 378 S.W.2d 122 (Tex.Civ.App.—Dallas 1964, no writ), that “. . .a claimant [supplier] who does not have any direct contractual relationship with a prime contractor must give to the prime contractor the notices provided in . Art. 5160 . as a condition precedent to the enforcement of liability of the prime contractor and his surety.”

Strict compliance with the requirements of art. 5160 is essential to recovery. Barfield v. Henderson, 471 S.W.2d 633 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.); Union Indemnity Co. v. Rockwell, 57 S.W.2d 90 (Tex.Comm’n of App.1933, judgmt adopted); United Tile Co. v. Kermit Independent School District, 273 S.W.2d 434 (Tex.Civ.App.—El Paso 1954, writ ref’d n. r. e.); Gulf Oil Corp. v. Austin Contracting Co., 326 S.W.2d 925 (Tex.Civ.App.—Eastland 1959, writ ref’d n. r. e.).

Appellee argues that substantial compliance with art. 5160 is sufficient with respect to the timely filing of claims. In the cases cited by appellee to support this argument, we note that such cases recognize that the required notices were timely given and that there had been a substantial compliance with the contents of such required notices. With reference to the time within which to file the required notices, the law is correctly stated in Bunch Electric Co. v. Tex-Craft Builders, Inc., supra, as follows: “. . . appellant had the burden of proving that notice had been given by certified or registered mail as provided by the statute or by showing substantial compliance by proving actual notice within the [required time] period. [Citing cases.]” In the ease at bar, appellee has not discharged this burden in proving either element.

Appellee further argues that the statutory notice requirements can and have been waived by appellee, the general contractor. We find nothing in the record before us to prove such a waiver when applied to the required elements of waiver as enunciated in General Insurance Co. of America v. Smith & Wardroup, Inc., 388 S.W.2d 262, 264 (Tex.Civ.App.—Amarillo 1965, writ ref’d n. r. e.), citing Kuehne v. Denson, 148 Tex. 54, 219 S.W.2d 1006 (1949).

It is being undisputed that the suppliers failed to give the required notices in accordance with the requirements of art. 5160, they therefore failed to perfect or establish any valid or enforceable claim on the payment bond furnished by USF&G, as surety, or against appellee as general contractor. Accordingly the appellee was not under any legal obligation or liability to pay the accounts of the suppliers. Appellee having no legal obligation to pay such accounts, then the jury finding in Special Issue No. 10 cannot stand, and the appellants’ motion to disregard the answer to such Issue No. 10 should have been granted by the trial court.

Appellee argues that Tex.Rev.Civ. Stat.Ann. art. 5160 (Vernon 1971 and Supp. 1978) does not apply to the performance bond, and therefore it should be entitled to recover the $10,000 due appellants’ suppliers. If appellee’s cause of action is based upon the performance bond, the damages sought by appellee would necessarily be based upon the breach of contract on the part of appellants, such damages being the amount expended by appellee in completing the contract. Special issues were submitted to and answered by the jury with reference to such breach of contract. The jury answered the damage issues to the effect that appellee sustained “no damages” as a result of any breach. Under these findings, appel-lee is precluded from recovering any element of damages as to any such breach of contract against the surety on the performance bond.

Appellants complain in their fourth point that the trial court erred in overruling their motion for judgment and in failing to enter judgment for them in the amount of $26,874.28 plus prejudgment interest. Ap-pellee has admitted that it owes appellants, in connection with their subcontract No. 3 the sum of $19,936.45 as balance due upon such contract. Appellee further admits that the sum of $4,141.23 was due appellants for “unpaid approved extras.” The jury found the amount of $2,096.60 was due appellants for extras provided, and no challenge or attack is made by appellee upon this sum of $2,096.60. The jury found and awarded appellants the sum of $700 as attorney fees.

Appellee argues that the $19,936.45 due on its contract No. 3 with appellants was considered by the jury in its answer to Special Issue No. 9. Special Issue No. 9 inquired of the jury the “difference . between the contract price and the fair and reasonable sum of money (including the money paid to [appellants]) required by an ordinary prudent contractor ... to complete the contracts. . . . ” In response to this issue the jury answered, “None” as to “Contract No. 1, Contract No. 2, and Contract No. 3.” Appellee argues that “if the jury, in answering Special Issue No. 9, offset the amount owed to [appellants] against the damages suffered by [ap-pellee], the trial court was not in error in overruling appellants’ Motion for Judgment and in refusing to charge $19,936.45 against [appellee].” The argument is made that the jury considered all three subcontracts as one and considered the element of damages as to the three contracts as one contract, and that in so considering the three contracts as one, the jury considered the $19,-936.45 as an offset against the amount owed appellants.

Special Issue No. 9 inquired as to damages sustained as the result of the breach of each specific contract referring to each by number. The jury answered, “None” as to contracts No. 1, No. 2, and No. 3. The instructions given in connection with Issue No. 9 as to the elements of damages to be considered by the jury did not and could not have been construed to encompass any amount owed by appellee. We must assume the jury followed the instructions of the court. In order to hold that the jury considered the $19,936.45 in the sense of an offset, would require us to speculate and, upon pure conjecture, delve into the mental process of the minds of the jurors and to determine the items which the jury may or may not have considered. We cannot, and refuse to, become engaged in such a task of determining the mental gymnastics of the jury as to how and why it answered “None” to Issue No. 9.

In view of the jury findings as to extras in the sum of $2,096.60 and appellee’s admissions in owing $4,141.23 as extras and the sum of $19,936.45 as being due appellants under contract No. 3, the trial court should have awarded judgment for appellants in the aggregate sums of the three items, in the total sum of $26,174.28. The $700 attorney fees awarded appellants is not challenged and was properly awarded to appellants.

Appellants state in their brief that it is “undisputed that the entire job was completed on March 6, 1976. Therefore, interest at 6 percent per annum on the balance admittedly due under contract No. 3, $19,-936.65, from March 6,1976 to March 1,1978, would be $2,392.97.” This statement, as shown by the record, has not been challenged. It has long been a settled rule that, where damages are established as of a definite time and the amount thereof definitely determinable, interest is recoverable as a matter of right from the date of the injury loss. Black Lake Pipe Line Co. v. Union Construction Co., 538 S.W.2d 80, 95-96 (Tex.1976). The trial court should have awarded to appellants the sum of $2,392.97 as prejudgment interest.

Appellants next complain of error by the trial court in refusing to award attorney fees for appeals to the appellate courts. The jury in response to Special Issue No. 5 answered “0” as to attorney fees for an appeal to the Court of Civil Appeals and “0” for application to the Supreme Court for writ of error. The trial court refused to award any amount in its judgment for such appeal.

A trial court, in its discretion, may allow a fee to an attorney for an appeal, but is not required to do so. Olivares v. Porter Poultry & Egg Co., 523 S.W.2d 726 (Tex.Civ.App.—San Antonio 1975, no writ); Bernard v. Bernard, 491 S.W.2d 222 (Tex. Civ.App.—Houston [1st Dist.] 1973, no writ); Schwartz v. Jacob, 394 S.W.2d 15 (Tex.Civ.App.—Houston 1965, writ ref’d n. r. e.). This point is overruled.

By cross-point appellee urges the jury’s answer to Special Issue No. 9 is so against the great weight and preponderance of the evidence as to be manifestly unjust. Issue No. 9 concerned damages incurred by appellee in completing the three subcontracts involved herein. The jury answered “None” to all three contracts. Appellants filed their motion to strike the cross-point as not being properly presented on appeal. Assuming, without deciding the cross-point is properly raised and presented, we overrule the same as being without merit. The record shows that the trial court entered its formal order stating, inter alia, “that the motion of [appellee] for judgment on the verdict should be granted in its favor for $7,203.36. . .” Having filed a motion for judgment (as was clearly shown by the court’s order), appellee is in no position to question the sufficiency of the evidence. A motion for judgment on the verdict is an affirmation that the findings of the jury are supported by competent evidence. Skeen v. State, 550 S.W.2d 713 (Tex.Civ.App.—El Paso 1977, no writ); Wilson v. Burleson, 358 S.W.2d 751, 753 (Tex. Civ.App.—Waco 1962, writ ref’d n. r. e.).

For the errors noted above, the judgment of the trial court is reversed, and we now render the judgment which should have been rendered by the trial court: that ap-pellee take nothing by its cross-action and that appellants have judgment against ap-pellee in the sum of $28,567.25, plus $700 for attorney fees.

REVERSED and RENDERED.


author: DOYLE, Justice.

text:
    RESERVE LIFE INSURANCE COMPANY, Appellant, v. Vanessa Leigh ENGLISH, Appellee.
    No. 17360.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 12, 1979.
    Rehearing Denied May 24, 1979.

      Lawrence, Thornton, Payne & Watson, Bill M. Payne, Bryan, for appellant.
    Dillon, Giesenschlag, Sharp & Delaney, Bill J. Youngkin, Bryan, for appellee.
   DOYLE, Justice.

This is an appeal from the judgment in a suit on a medical and hospitalization insurance policy which bore an effective date of April 7,1976. The plaintiff, Vanessa Leigh English, appellee, sued the defendant, Reserve Life Insurance Company, appellant, to collect medical and hospital expenses resulting from a gall bladder operation in June, 1976. The policy provided that the cause of the illness must have originated after the date of the policy. The insurance company answered setting forth this policy provision and pleading that the cause of the illness originated prior to the effective date of the policy.

Trial was to a jury which found in response to special issue no. 1 that the cause of the sickness originated after April 7, 1976. No issues whatsoever were submitted to the jury on the amount, necessity for or reasonableness of medical or hospitalization expenses. Other issues related to attorney’s fees in the trial court and on appeal to the Court of Civil Appeals and the Supreme Court. On issue findings favorable to appellee, judgment was entered by the trial court for $7,335.90.

By its first six points of error, the appellant complains of the trial court’s failure to exclude the testimony of the appellee as to the amount, necessity and reasonableness of her hospital expenses over appellant’s objections that such testimony was not the best evidence and that there was no evidence as to the amount and reasonableness of such expenses. Appellee contends that a stipulation made by and between the same parties at a previous trial of this same cause was binding on the appellant. Appellee alleges the stipulation to be as follows:

Mr. Youngkin: Your honor, at this time I’d like to stipulate as to the expenses that were incurred by the Plaintiff as a result of this hospital confinement.

The Court: Alright.

Mr. Youngkin: And that is the charge of $460.00 payable to Dr. McQuaide for surgery is a fair and reasonable charge for performance of such surgery in Brazos County; that the hospital statement of $894.50 is a fair and accurate value for services rendered by hospitals; that $90.00 paid to Bryan Anesthesia is a fair and reasonable charge for such service; and that $50.00 to Dr. Hall for assisting in surgery is also a fair and reasonable charge for such service; and that the total, fair and reasonable charge for the services rendered to Mrs. English were $1,494.50.
The Court: Do you agree to that stipulation, Mr. Payne?
Mr. Payne: I do so stipulate, your hon- or.
The Court: Alright. It will be admitted.

Pertinent to our discussion of the above stipulation is the manner in which it comes before us. It appears that by way of a supplemental transcript applied for on January 24, 1979, in Brazos County, Texas, and filed in this court on January 29, 1979, an excerpt from the statement of facts at a previous trial of this same cause was requested by appellee and made by one Beatrix French, the official court reporter for the 85th Judicial Court of Brazos County, Texas, who reported the proceedings at the original trial of this cause on July 11, 1977, Judge W. C. Davis, presiding. No other portion of 'the proceedings of that trial was excerpted.

There is nothing in the record before this court that would indicate that the second trial judge knew of such stipulation at the first trial of this cause. There is no mention of the stipulation in the judgment, and when appellee attempted to prove her medical expenses, over the objection of appellant, the following testimony was given:

Q. What sort of expenses did you incur in this surgical treatment that you received?
A. How did I pay for it?
Q. How much did it cost you?
A. How much did it cost? I don’t remember that either. It was around 1600, I think.
Mr. Payne: We object to the last question and the last answer on the basis of the best evidence rule, Your Honor.
Mr. Youngkin: Your Honor, she can testify as to how much the thing cost if she paid for it.
Court: I don’t think she answered it. She said, “around.”
I Q. You don’t remember exactly at II this point in time; it that correct?
A. No.
Q. But it was somewhere in that neighborhood?
A. Right.

After this testimony, nothing further was mentioned by either side concerning medical expenses. If the appellee were relying on the alleged stipulation as she argues in her brief, it is unclear why she did not answer appellant’s objection by referring to such stipulation. Nor can we understand why appellee attempted to prove any medical expenses since the stipulation would have made such proof unnecessary. It is to be noted that the trial judge in the case before us (Judge W. T. McDonald) was not the judge presiding at the previous trial (Judge W. C. Davis).

From a reading of appellee’s brief it appears that the alleged stipulation was agreed upon in a pretrial conference with Judge Davis before the initial trial and read into the record at the beginning of such trial. Since the record of that trial is not before us, we are unable to determine whether the court made an order on the stipulation and entered it in accordance with Rule 166(g), T.R.C.P. Likewise, we are unable to determine whether the attorneys signed it as provided by Rule 11, T.R. C.P. As a further indication that the trial court knew nothing of the alleged stipulation, it took no cognizance of appellant’s motion for new trial wherein it set out in six paragraphs the errors pertaining to the lack of proof of the medical expenses. We make no ruling as to the sufficiency of the stipulation, nor whether it was properly admitted at the previous trial, since in our opinion, such stipulation is not properly before us and therefore constitutes no part of the record.

Appellee cites several cases which hold that stipulations, properly entered into and presented to the court in accordance with Rule 166(g) and Rule 11, T.R.C.P., are binding on the party making them. Barnett v. Maida, 523 S.W.2d 325, 327 (Tex.Civ. App.-Beaumont 1975, writ ref’d n. r. e.); United States Fire Insurance Company v. Carter, 468 S.W.2d 151, 154 (Tex.Civ.App.-Dallas 1971, writ ref’d n. r. e.); McCormick and Ray, Texas Law of Evidence, Section 1127 (Texas Practice 2d ed. 1956). We are in accord with the general rule on the admissibility of stipulations as set forth by these authorities. However, the facts in the case before us are distinguishable. In every case this court has been able to find touching upon the introduction in subsequent trials of stipulations made in former trials involving the same parties, same counsel, same facts, same court and same cause of action, there has been an introduction of the previous stipulation, and such has become a part of the record in the subsequent trial. Unless the stipulation urged by appellee is in the record before us, we can give it no legal effect.

It is undisputed that no issue was requested nor submitted to the jury on the amount, necessity for or reasonableness of medical expenses. To support the judgment of the trial court, there must be some evidence of probative force of the amount, necessity for and reasonableness of the medical expenses incurred by appellee as a result of her illness. The trial court had no such evidence before it upon which to base its judgment for appellee in the amount of $7335.90. We sustain appellant’s points of error one through six.

Appellant by several other points of error complains of the trial court’s errors in not declaring a mistrial for appellee’s attorney’s improper opening remarks to the jury panel and to the jury on final argument. The court instructed the jury to disregard the challenged remarks which should not occur on a retrial of this case. Appellant’s other points of error will not be discussed in view of our remand.

We feel that certain relevant portions of the evidence in this case were not properly developed and that the errors complained of will not be repeated on retrial.

The judgment of the trial court is reversed and remanded.

COLEMAN, C. J., and PEDEN, J., sitting.


author: HUTCHINSON, Justice.

text:
    The M. E. MORGAN COMPANY, Appellant, v. BOISE CASCADE CORPORATION, BUILDING MATERIALS AND SERVICES DIVISION, Appellee.
    No. 8692.
    Court of Civil Appeals of Texas, Texarkana.
    April 24, 1979.
    Rehearing Denied June 5, 1979.
    C. Thomas Wesner, Jr., Wesner, Wylie & Pleasant, Dallas, for appellant. ,-

    Randall F. Adair and Carol E. Farquhar, Guest, Hoecker & Adair, Dallas, for appel-lee.
   HUTCHINSON, Justice.

This is a suit upon a sworn account instituted by appellee, Boise Cascade Corporation (Cascade), against appellant, The M. E. Morgan Company (Morgan). Cascade’s motion for summary judgment was granted and Morgan has perfected this appeal.

Morgan’s answer consists of a general denial and an allegation that the account was not just and true. However, the answer admittedly did not comply with the requirements of Rule 185, Tex.R.Civ.P., and did not constitute a sworn denial as required by such rule.

This appeal is based primarily upon Morgan’s assertion that the account sued upon was insufficient under Rule 185 in that it did not show with reasonable certainty the nature of each item, the date and the charge therefor. In support therefor reliance is placed upon the cases of Hassler v. Texas Gypsum Company, Inc., 525 S.W.2d 53 (Tex.Civ.App.Dallas 1975, no writ), and Bookstall, Inc. v. John Roberts, Inc., 517 S.W.2d 451 (Tex.Civ.App.Austin 1974, no writ). It should be noted that in each of those cases the judgment was entered by default.

Cascade’s petition contained the following allegation:

“That the Plaintiff and Defendant were fen¿ag?ed in the same or similar industry ' “¿'M trade at all times mentioned herein ■‘and as members of such common industry a'nd trade have knowledge of the symbols, letters, words and numbers used to de-•ibe tb", ; \-ods shown on the invoices ,;tecbt ⅜⅜⅛ petition as part of Exhibit ‘A’. That; the Defendant ordered the goods described in said invoices and that said Defendant is familiar with and knows the meaning of the symbols, letters, words and numbers used on said invoices to describe the goods sold and delivered to the Defendant.”

However, the petition was not sworn to and no summary judgment proof was offered in support of this allegation. Morgan’s answer did not contain an exception directing the court’s attention to the now complained of insufficiency of the account attached to Cascade’s petition, and did so only in its motion for a new trial.

As noted, Morgan did not by motion or exception in writing bring to the attention of the trial court its complaint of the insufficiency of the account before the rendition of the judgment. Rule 90, Tex.R.Civ.P., specifically provides that defects in pleadings are waived unless specifically pointed out by motion or exception in writing before the rendition of the judgment. It has been noted that Rule 90 does not specifically refer to summary judgment pleadings but in so doing the court held that the same considerations apply and defects are waived if not pointed out by motion or exception. Jones v. McSpedden, 560 S.W.2d 177 (Tex.Civ.App.Dallas 1977, no writ), wherein the court stated:

“. . .If the opposing party files an exception to the motion stating that failure to specify the ground for summary judgment leaves him without adequate information for opposing the motion, and this exception is overruled, then he might have a valid complaint on appeal. . Since no such exception was filed, we hold that this defect was waived. Spray v. Stash, 523 S.W.2d 262, 263 (Tex.Civ.App.—Eastland 1975, writ ref’d n.r.e.).”

Too, it should be noted that the judgments in both Hassler and Bookstall, supra, were by default and therefore specifically exempted from the requirements of Rule 90. This rule was not the basis for either of these decisions but the results reached are consistent with the rule.

Regardless of the foregoing comments relative to Rule 90, the judgment of the trial court here finds ample support under Rule 185 alone. Perhaps the most frequently cited and sometimes criticized (To-masic & Kieval, Sworn Accounts and Summary Judgment Proceedings in Texas: A Proposed Change, 17 S.Tex.L.J. 147 (1976)) case is Wilson v. Browning Arms Company, 501 S.W.2d 705 (Tex.Civ.App.Houston-14th Dist. 1973, writ ref’d), relying upon a footnote in Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.1971), where the court referring to suits based upon sworn accounts stated:

. .In such cases summary judgment does not rest on proof supplied by pleading, sworn or unsworn, but on deficiencies in the opposing pleading. . .”

The court then proceeded to hold that under Rule 185 a properly verified petition should be taken as prima facie evidence thereof and unless the defendant files a written denial under oath in the form provided by the rule, the defendant will not be heard to deny the claim. Also see Brown v. Clark, 557 S.W.2d 558 (Tex.Civ.App.Texarkana 1977, no writ); Edinburg Meat Products Co. v. Vernon Company, 535 S.W.2d 432 (Tex.Civ.App.Corpus Christi 1976, no writ); Goodman v. Art Reproductions Corporation, 502 S.W.2d 592 (Tex.Civ.App.Dallas 1973, writ ref’d n.r.e.); McDonald v. Newlywed’s, Inc., 483 S.W.2d 334 (Tex.Civ.App.Texarkana 1972, writ ref d n.r.e.).

The author of the above referred to law review article (17 S.Tex.L.J. 147) examined the sued upon account in Wilson v. Browning' Arms Company, supra, and discusses its inadequacies. The instant account has been examined by this Court and it too has its inadequacies. However, such inadequacies were not brought to the attention of the trial court by motion or by exception to the pleadings or to the account as required by Rule 90 and it can properly be said, if need be, that such inadequacies were waived. Jones v. McSpeeden, supra; Goodman v. Art Reproductions Corporation, supra.

The judgment of the trial court is affirmed.


author: EVANS, Justice.

text:
    Ex parte Christina Marie SARAO, Relator.
    No. 17444.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 26, 1979.
    Woody & Rosen, Mary M. Rawlins, Houston, for appellant.
    Dow, Cogburn & Friedman, George A. Rustay, Houston, for appellee.
    Before COLEMAN, C. J., and EVANS and WALLACE, JJ.
   EVANS, Justice.

The threshold question in this case is whether this court has original jurisdiction over a habeas corpus proceeding instituted by the petitioner Josephine Marie Sarao on behalf of her minor child, Christina Marie Sarao.

The petitioner contends that her daughter is being restrained of her liberty by virtue of a void order entered by the trial court. She alleges that under the provisions of an earlier divorce decree she was named the managing conservator of her child and that the trial court, without proper notice and hearing, appointed the respondent, James Sarao, the child’s father, as the temporary managing conservator of the child.

Article 1824a Tex.Rev.Civ.Stat.Ann. provides:

Whenever any person is restrained in his liberty within a supreme judicial district, the court of civil appeals of such district, or any of the justices thereof, shall have concurrent jurisdiction with the supreme court to issue the writ of habeas corpus whenever it appears that such restraint of liberty is by virtue of any order, process, or commitment issued by any court or judge on account of the violation of any order, judgment, or decree theretofore made, rendered, or entered by such court or judge in a divorce case, wife or child support case, or child custody case. Said court or any justice thereof, pending the hearing of application for such writ, may admit to bail any person to whom the writ of habeas corpus may be so granted.

The initial question raised by the petitioner’s application is whether this court has jurisdiction to entertain a habeas corpus proceeding in a child custody case where it does not appear that the order complained of was issued “on account of the violation of” an order theretofore made, rendered or entered in the cause. The court concludes that it does not have such jurisdiction.

The Texas Supreme Court, interpreting Article 1737, Tex.Rev.Civ.Stat.Ann., which contains language similar that contained in the provisions of Article 1824a, has held that its original habeas corpus jurisdiction is confined to those matters involving a restraint of liberty by virtue of the violation of an order, judgment or decree in a civil case. Ex parte Hofmayer, 420 S.W.2d 137 (Tex.1967); Ex parte Waters, 498 S.W.2d 144 (Tex.1973); Ex parte Morris, 162 Tex. 530, 349 S.W.2d 99, 101 (1961). In Morris, the Texas Supreme Court concluded:

“Our original habeas corpus jurisdiction is limited thereby to cases in which a person has been confined for violating an order, judgment or decree in a civil cause, and we are without power to inquire into the legality of restraint imposed for some other reason.”

The courts of civil appeals have extremely limited jurisdiction in original ha-beas corpus proceedings and their jurisdiction is restricted to those cases in which a person has been confined for violating an “order, judgment, or decree theretofore made, rendered, or entered by such court or judge in a divorce case, wife or child support case, or child custody case.” Article 1824a, Tex.Rev.Civ.Stat.Ann.; Ex parte Hosken, 480 S.W.2d 18, 24 (Tex.Ciy.App.—Beaumont 1972 no writ).

The petition for habeas corpus is dismissed for want of jurisdiction.


author: REYNOLDS, Justice.

text:
    J. Roy McCOY, Appellant, v. E. L. POLVADO, Appellee.
    No. 8996.
    Court of Civil Appeals of Texas, Amarillo
    April 30, 1979.

      Harold Phelan, Phelan, Moreland & Phe-lan, Levelland, for appellant.
    James K. Walker, Morton, for appellee.
   REYNOLDS, Justice.

The sole question presented is the propriety of a $1,750 judgment for temporary damages resulting to land from the drilling of a gas well. Tested by the applicable measure of damages, the evidence is factually insufficient to support the amount of damages decreed. Reversed and remanded.

J. Roy McCoy became the assignee of a mineral lease given by E. L. Polvado and his wife covering their 241.8 acre tract of land in Cochran County. A drilling contractor engaged by McCoy, who took down and failed to replace forty feet of fence, moved a drilling rig onto grassland in the northeast corner of the tract, and completed a gas well. A surface oil line connects the gas well and nearby tanks, and a surface gas line extends northwesterly from the well and connects it to El Paso Natural Gas Company’s pipeline beneath the northwest comer of the tract.

Adjunctive to legal proceedings instituted by McCoy to enable the commencement of operations, Mr. Polvado sought to hold McCoy liable for damages to the land. Pol-vado did not allege that damages were caused by McCoy’s negligent operations, nor that McCoy used more of the premises than was reasonably necessary to comply with the terms of the lease. Rather, Polvado predicated his claim for damages on paragraph 14 of the lease, which reads:

14. Lessee [McCoy] hereby agrees to pay reasonable damages for any actual damages done to growing crops and the surface of the land, including roads, well locations, and tank battery sites. When requested by lessor [Polvados], lessee will bury all pipelines below plow depth. Upon plugging and abandoning of any oil or gas well hereunder, lessee agrees to restore the surface of the land around such drill site to its normal condition, insofar as reasonably possible.

Thus, any liability of McCoy for the claimed damages arises only by reason of the pleaded paragraph 14 of the lease. See Warren Petroleum Corporation v. Monzingo, 157 Tex. 479, 304 S.W.2d 362, 363 (1957).

In testifying, Polvado judicially admitted that no growing crop had been damaged and that there was no permanent damage to the land. Moreover, he acknowledged that McCoy may have needed the land used in the operation. Polvado made no proof of cost of any necessary repair. Instead, his testimony was addressed to the loss of the use of the land. In that setting, both litigants cite Weaver Construction Company v. Rapier, 448 S.W.2d 702, 703 (Tex.Civ.App.—Dallas 1969, no writ), for this measure of damages: damages for temporary injury to land is the reasonable cost of repairs necessary to restore the property to its condition immediately prior to injury plus the loss occasioned by being deprived of the value of the use of the property. However, it is also written that the loss is to be measured by the value of use of the land while in its injured condition. Gulf Pipe Line Co. v. Hurst, 230 S.W. 1024, 1027 (Tex.Civ.App.—San Antonio 1921, no writ). Accord, Gulf Pipe Line Co. v. Watson, 8 S.W.2d 957, 959 (Tex.Civ.App.—Forth Worth 1928, no writ).

Polvado testified that when the fence was taken down and not replaced, he could not use an estimated twelve or fourteen acres as pasture land at a probable loss of $20 or $25 per acre (meaning, so he argues on appeal, for each of two years prior to trial, which would compute to a minimum of $480 and a maximum of $700). He further stated that since the fence was down, he decided to put the land in cultivation, but could not do so because the gas lines were on the surface of the land, although it is undisputed that McCoy never was requested to bury the lines. Polvado said that had he been able to plant the acreage in cotton, even though he had no cotton allotment for the acreage, he would have been able to make better than $200 an acre on the basis of what nearby cotton land had made (meaning, so he also argues on appeal, a loss of $2,800 for the year prior to trial).

An abstractor calculated the land occupied by the gas well, an open slush pit and the tanks as being 1.39 acres. He placed a value of $325 an acre on the land.

Under the terms of the lease, McCoy had the legal right to enter upon the premises and drill the well, using so much of the premises as was reasonably necessary to comply with the terms of the lease and effectuate its purpose, Warren Petroleum Corporation v. Monzingo, supra, 304 S.W.2d at 363; but, McCoy was obligated, independent of breach of contract or liability for tort, to pay damages he caused to growing crops and to the land, including the well location and tank battery sites. Accord, Meyer v. Cox, 252 S.W.2d 207, 208 (Tex.Civ.App. —San Antonio 1952, writ ref’d). The lease did not prohibit the placing of lines on the surface of the land and, there being no request to bury them, permitted that placement. Hence, absent specific allegations of negligence in placing the lines, and none was pleaded here, no right of recovery arose merely because the lines were placed as permitted by the lease. See Lone Star Gas Co. v. Hutton, 58 S.W.2d 19, 21 (Tex.Com.App.1933, holdings approved).

Resultantly, when the fence, which was a part of the realty, International & G. N. R. Co. v. McIver, 40 S.W. 438 (Tex.Civ.App.—1897, writ ref’d), was taken down and not replaced, a temporary injury was visited on the land. The only proof of damages for this injury is a maximum of $700 for the loss of the value of the use of the land as pasture land. And even accepting, in the absence of evidence showing the duration of the injury, Polvado’s theory that McCoy’s utilization of 1.39 acres for the well and tank sites is a temporary injury to the land under the wording of the lease, rather than a permanent injury to land for which a different measure of damage applies, the damages, applying the $325 an acre value, would amount to $451.75. Yet, the proof of $1,151.75 ($700 + $451.75) maximum damages, without the establishment of any other damages recoverable under the terms of the lease, is factually insufficient to support the finding of $1,750 damages upon which the judgment rests.

Accordingly, the judgment of the trial court is reversed, and the cause is remanded.

      . This case fixes the measure of damages for negligence which prevents the planting and cultivating of a crop on tilled land as only a reasonable rental value of the land, and not the probable value of the crop less the cost of cultivation. 58 S.W.2d at 21.

      . The proper measure of damages for permanent injury to real property is the difference between the reasonable cash market value of the property immediately before and immediately after the injury. Lone Star Gas Co. v. Hutton, 58 S.W.2d 19, 20 (Tex.Com.App.1933, holdings approved).


author: WALLACE, Justice.

text:
    SEISMIC & DIGITAL CONCEPTS, INC., Appellant, v. DIGITAL RESOURCES CORPORATION, Appellee.
    No. 17453.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 10, 1979.
    Bakke & Bradshaw, 0. Otis Bakke, Houston, for appellant.
    Lapin, Totz & Mayer, William A. Pesen, Houston, for appellee.
   WALLACE, Justice.

Appellant, Seismic & Digital Concepts, Inc., seek an extension of time in which to file a statement of facts. Rule 386, T.R. C.P., provides “. the appellant shall file the transcript and statement of facts with the clerk of the Court of Civil Appeals within sixty days from the rendition of the final judgment or order overruling motion for new trial . . .” Rule 21c, T.R.C.P., allows for discretionary extension of late filing by the Court of Civil Appeals of a statement of facts, “if a motion reasonably explaining the need therefor is filed within fifteen days of the last date for filing . . . .”

Appellants did not timely file the statement of facts on this appeal. The sixty-day deadline for filing the transcript and statement of facts expired March 29, 1979. The motion to extend was tendered to the clerk on April 16, 1979, eighteen days after the expiration of the sixty-day deadline. “The fifteen-day time limit is mandatory; and unless a motion is filed within fifteen days, the court of civil appeals cannot grant leave to file the instruments.” Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex.1977). April 13, 1979, Good Friday, is not a legal holiday enumerated in Article 4591, V.A. C.S. Court personnel were present the entire day. Counsel for appellant admits he did not call the Court of Civil Appeals but instead relied on information relayed to him on April 12, 1979 by the Harris County Courthouse switchboard operator that April 13, 1979 was a holiday and the courthouse would be closed. Appellant failed to file the motion to extend the time for filing the statement of facts within fifteen days of the sixty-day deadline, therefore this court cannot grant leave to file the same.


author: WARREN, Justice.

text:
    James F. HURY, Jr., Criminal District Attorney, Galveston County, Texas, Relator, v. Don B. MORGAN, Judge of 212th District Court of Galveston, Texas, Respondent.
    No. 17481.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 11, 1979.
    James F. Hury, Jr., Galveston, for relator.
   WARREN, Justice.

Relator, the district attorney of Galveston County, Texas, filed a motion for leave to file an original petition for writ of mandamus in this court seeking to compel the Honorable Don B. Morgan, judge of the 212th District Court, Galveston County, Texas, to withdraw an order issued by him expunging the felony arrest records of Millard Dola Fleetwood.

Millard Dola Fleetwood was indicted by the grand jury of Galveston County, Texas, for the offense of felony theft. He was arrested, but later the indictment was dismissed. He then filed a petition in the 212th District Court, in accordance with Art. 55.01 Tex.Code Crim.Pro.Ann. (Vernon ■1966) to expunge his arrest records, which was granted by respondent.

Art. 55.01 Tex.Code Crim.Pro.Ann. (Vernon 1966) provides that persons may be entitled to have their arrest records expunged under certain conditions. Art. 55.02 Tex.Code Crim.Pro.Ann. (Vernon 1966) provides for the procedure to be followed by the petitioner and the court when the records are sought to be expunged.

Briefly, the statutes require a petition, notice, hearing, and, if such petition is granted, prescribe a procedure for the destruction or sealing of the records.

Relator contends that the expunction by the district court constituted an abuse of discretion, and because there is no adequate remedy at law he is entitled to file the original writ with this court. We disagree.

The power of courts of civil appeals to issue writs of mandamus is limited. They may issue such writs only in protection of their appellate jurisdiction, [Tex.Rev.Civ. Stat.Ann. art. 1823 (Vernon 1964)] to order a trial judge to proceed to trial and judgment, [Tex.Rev.Civ.Stat.Ann. art. 1824 (Vernon 1964)], or to compel any judge or clerk of an election or any official connected therewith to comply with the law regarding the holding of any general, special or primary election or any convention of a political party. [Tex.Rev.Civ.Stat.Ann. art. 1735a (Vernon Supp. 1978-1979)].

Relator cites cases which he contends support the proposition that mandamus is a proper remedy where there has been an abuse of discretion, but none of these cases involve an original proceeding filed in the court of civil appeals to modify or vacate an order of a district judge. The power to grant such relief, if proper, is vested in the Supreme Court of Texas and not in the court of civil appeals. Tex.Rev.Stat.Ann. art. 1733 (Vernon 1962). Crofts v. Court of Civil Appeals, 362 S.W.2d 101 (Tex.1962).

Only the Supreme Court has power in mandamus proceedings to require a district court to set aside an illegal order. Chapa v. Betts, 534 S.W.2d 446 (Tex.Civ.App.—Austin 1976, no writ).

There being no facts alleged which could invoke the jurisdiction of this court, motion for leave to file an original petition for a writ of mandamus is refused.