author: W. C. DAVIS, Judge. ODOM, Judge CLINTON, Judge,

text:
    Joe PHILLIPS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 56071.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 24, 1979.

      Steve Robertson, Clifton, F. T. Gauen, Jr., Dallas, for appellant.
    Bobby L. Cummings, Dist. Atty., Gates-ville, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S MOTION FOR REHEARING

W. C. DAVIS, Judge.

On original submission of this cause, the conviction for the offense of injury to a child was set aside for the reason that a child fourteen years, one month and five days old is not a child who is “fourteen years of age or younger” protected by V.T. C.A. Penal Code, Sec. 22.04. On rehearing, the State asks our reconsideration of the question. This we shall do.

Although the sufficiency of the evidence is not challenged, the record reveals that the appellant was in charge of Indian Springs Boys Ranch, a home for pre-delin-quent children. On September 12, 1976, appellant was using at least two of the boys to assist him in blasting a ditch in rock by the use of dynamite when one of them sustained serious bodily injury consisting of loss of an eye, hand and wrist, abrasions, and lacerations for which he received extensive plastic surgery. At the time of the injury, the victim was fourteen years, one month and five days old.

In two grounds of error, appellant contends that the child was not 14 years of age as contemplated by V.T.C.A. Penal Code, Sec. 22.04(a), since he had passed his fourteenth birthday, and that Sec. 22.04, supra, is constitutionally vague because the standard of care imposed “is not and cannot be defined.”

V.T.C.A. Penal Code, Sec. 22.04 reads as follows:

“(a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct that causes serious bodily injury . . . to a child who is 14 years of age or younger.”

It is important to note that the phrase “14 years of age or younger” is written in the disjunctive, thereby making it quite obvious that the statute was intended to protect two distinct groups of children: those who are fourteen years of age and those who are under fourteen.

The appellant contends and the Panel on original submission held the phrase “14 years of age” to mean one who has reached his fourteenth birthday, but that thereafter he was over fourteen years of age, even though he had not reached his fifteenth birthday. This interpretation of the statute limits the duration of the protection afforded to fourteen year olds to a period of one day or less. As authority for this conclusion, the Panel opinion cited V.T. C.A. Penal Code, Sec. 1.06, which provides as follows:

“A person attains a specified age on the day of the anniversary of his birthdate.”

This statute was obviously an intent on the part of the Legislature to abolish the old common law rule that a person attains a given age at the last moment of the day preceding the anniversary of birth, not as a limitation on the period of time one remains at a given age.

Sec. 22.04, supra, in protecting a child “14 years of age or younger,” is the only statute in the Penal Code using this phraseology. There are, however, ten statutes in the Penal Code where the term “younger than” a certain age is used. Had the Legislature intended to protect only those children under fourteen years of age, it would have been a simple matter for them to have so provided by the use of a phrase “younger than.” To say that the Legislature deviated from the use of the phrase “younger than_years of age” used in the other statutes in Sec. 22.04, supra, so as to include a class of people who were injured only on their birthdate does not make sense. Sec. 1.06 does not lend itself to such interpretation.

We hold that Sec. 22.04(a) includes in its protection all children who have not attained their fifteenth birthday, and that the victim in this case was thus protected.

In his second ground of error, appellant contends that Sec. 22.04 is unconstitutionally vague because the standard of care imposed upon a defendant is not, and cannot be defined. Appellant goes further to claim that under the terms of Sec. 22.04, supra, he “cannot determine what acts or omissions are to be refrained from or what acts a person has a duty to do.”

The indictment in the instant case provided, eliminating the formal parts, that the appellant, on the 12th day of September, 1977,

“did then and there with criminal negligence engage in conduct, to wit: allowing boys under his supervision to use dynamite for blasting rocks in a ditch at Indian Springs Boys Ranch, that caused serious bodily injury to Lacy Jordan, a child 14 years of age.”

Sec. 22.04, supra, provides four culpable mental states on which a prosecution may rest: “A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct . . . ”

Appellant in this case was charged with criminal negligence which is defined in V.T. C.A. Penal Code, Sec. 6.03 as follows:

“(d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

Appellant’s contention that this statute is unconstitutionally vague for its failure to define the standard of care is without merit.

In Wingate v. State, 383 S.W.2d 601 (Tex.Cr.App.1964), this Court upheld an ordinance of negligent collision, wherein “negligence” was defined as “ ‘the failure to use that degree of care that a reasonable and prudent person would use under the same and similar circumstances.’ ” This ordinance, in which simple negligence constituted an offense, was upheld as charging with reasonable certainty the acts relied upon to constitute an offense.

In Lewis v. State, 529 S.W.2d 550 (Tex.Cr.App.1975), we were confronted with a challenge to the constitutionality of our criminally negligent homicide statute, V.T. C.A. Penal Code, Sec. 19.07. The statute, in which causing the death of an individual by criminal negligence as defined in V.T.C.A. Penal Code, Sec. 6.03(d) was proscribed, was challenged as being vague and uncertain. We overruled the defendant’s contentions, holding that the statute was not so vague and uncertain as to be unconstitutional and unenforceable.

In Nabors v. State, 508 S.W.2d 650 (Tex.Cr.App.1974), the defendant challenged the constitutionality of a statute under the old Penal Code which was similar to the present V.T.C.A. Penal Code, Section 22.04. However, that statute provided a defense to prosecution for injury to a child:

“[i]f the act complained of was done in the exercise of the right of moderate restraint or correction given by law to the parent over the child . . . ”

The defendant claimed that this statute was “vague because it is lacking in ascertainable standards so that a person of ordinary intelligence is not given fair notice that his contemplated conduct is forbidden.” In holding that this portion of the statute was not unconstitutional, we quoted 44 Tex.Jur.2d, Sec. 17, p. 43:

“The law has not and obviously could not lay claim any fixed measure of moderation in the correction of a child. Whether in any particular case the correction was moderate or excessive must necessarily depend on the age, sex, condition and disposition of the child, and on all the attending circumstances to be determined by the jury under proper instructions.”

Likewise, the law could not possibly anticipate every instance where an individual’s conduct would constitute “a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances . . . ” Whether an actor’s conduct constitutes a gross deviation from the standard of care which would be exercised by an ordinary person in the same circumstances constitutes a question of fact to be resolved by the fact finder after proper instructions. We conclude that the definition of criminal negligence as contained in V.T.C.A. Penal Code, Section 6.03(d), supra, adequately describes the prohibited conduct and gives proper notice of the conduct forbidden. See Dockery v. State, 542 S.W.2d 644 (Tex.Cr.App.1975) (evidence held sufficient to show that the defendant’s conduct constituted a gross deviation from the standard of care). This ground of error is overruled.

The judgment and sentence in the instant cause are reformed to reflect that appellant was found guilty of “Injury to a Child,” rather than “Criminal Negligence.”

The State’s Motion for Rehearing is granted, and the judgment is affirmed.

ODOM, Judge

dissenting.

I dissent to the majority’s disposition of appellant’s second ground of error. The majority erroneously construe the phrase “14 years of age or younger” in Sec. 22.04, V.T.C.A. Penal Code, to refer to “two distinct groups of children.” The result is that the phrase is held to be equivalent in scope to the phrase “younger than 15 years.” The majority opinion does point out that the Penal Code in at least ten instances does use the terminology of “younger than” a certain age. See, e. g., the provisions listed in footnote 1 of the majority opinion. To borrow a proposition that is sound, although misapplied by the majority: Had the Legislature intended to protect all children under fifteen years of age, it would have been a simple matter for them to have so provided by the use of the phrase “younger than.” The fact that such language was not used in Sec. 22.04, supra, coupled with the fact that such language is used as a standard form of terminology in numerous other provisions of the same Act, is strong evidence of legislative intent that “14 years of age or younger” has a meaning distinct from, not equivalent to, “younger than 15 years.”

To the majority’s erroneous construction of Sec. 22.04, supra, I respectfully dissent.

ROBERTS and PHILLIPS, JJ., join this opinion.

CLINTON, Judge,

dissenting.

I also dissent. While I do not particularly disagree with the views expressed by Judge Odom in his dissenting opinion, rather than enter into the squabble about the meaning and applicability of V.T.C.A. Penal Code, Section 1.06 and what the Legislature could have said but did not, it is enough for me that before there was a guiding statute relative to mistreatment of males this Court held that the word “child” applied “only to boys under the age of 14” and, when the Legislature did address the subject, it indicated agreement, albeit obliquely.

The perplexity nagging the majority— the singular phraseology of Section 22.04— is resolved by the result of first application of the common acceptation rule to this problem in Bell v. State, 18 Tex.App. 53 (1885). But the best technical justification for it is that, unlike every statutory provision cited in note 1 of the majority opinion, the genesis of Section 22.04 is not the 1970 proposed revision of the Penal Code. Thus Article 1148a, Penal Code 1925, as amended, obviously of independent origins, was not subjected to thorough examination for consistency with a proposed revised penal code that received scant attention in the same session of the Legislature.

In these times of earlier maturity of children, at least as seen by most, I perceive no policy reason impelling the Legislature in 1971 or 1973 to depart from the settled understanding of the meaning of “child” as a victim of violence or sexual abuse. And, in my judgment, it did not.

Accordingly, I dissent.

ROBERTS and PHILLIPS, JJ., join.

      . See Penal Code Sec. 8.07, Age Affecting Criminal Responsibility; Sec. 9.61 Parent-Child; Sec. 20.01 Kidnapping; Sec. 21.09 Rape of a Child; Sec. 21.10 Sexual Abuse of a Child; Sec. 21.11 Indecency with a Child; Sec. 25.03 Interference with Child Custody; Sec. 25.05 Criminal Non-Support; and Sec. 43.24 Sale, Distribution, or Display of Harmful Material to Minor.

      . Section 1.06 really just changes by one day the common law rule that a person attains a given age at the first moment of the day preceding the anniversary of birth, 86 C.J.S. 832; apparently that rule, early approved in Ross v. Morrow, 85 Tex. 172, 19 S.W. 1090 (1892) and thereafter reaffirmed in Pate v. Thompson, 179 S.W.2d 355 (Tex.Civ.App. — Waco 1944, writ refused), still applies in the civil law of this State. (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

      . Wilman v. State, 63 Tex.Cr.R. 623, 141 S.W. 110, 111 (Tex.Cr.App.1911): “The authorities in this state hold that the word ‘child’ under our statute, in reference to aggravated assault, applies only to boys under the age of 14. . (citing authorities going back to [McGregor v. State,] 4 Tex.App. 599).”

      . Article 1147, Penal Code 1925 made an assault or battery aggravated when, in subdivision (9), it was committed by an adult male upon the person of a “child,” and then provided that the subdivision “shall not apply to the act of person who fondles . the sexual parts of a male . . . under the age of fourteen (14) years . . . .” See Article 535d, Penal Code 1925 and Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479 (Tex.Cr.App.1952).

      . See Texas Penal Code, A Proposed Revision, Final Draft, October 1970, West Publishing Co., St. Paul. As the disposition table shows, at that time Article 1148a, Penal Code 1925, as amended, did not exist.

      . Actually the phrase “14 years of age or younger” did not originate in the 1973 Penal Code revision. It first appeared in a House committee amendment to Senate Bill 445 that was enacted as Acts 1971, 62nd Leg., ch. 911, § 1 and was codified as Article 1148a, Penal Code 1925. Initially, as introduced and as passed by the Senate, the bill proscribed intentional battering of a child — without definition; the House adopted a committee amendment that inserted the phrase in two places following the word “child,” thusly: “a child who is 14 years of age or younger,” 1971 House Journal 3481; the Senate concurred in the amendment, 1971 Senate Journal 1326. Section 2 of the same bill amended subdivision (9) of Article 1147, supra, to limit an aggravated assault to one committed “by an adult male upon the person of a female,” thereby deleting the special category of “child” as a victim of aggravated assault, except as to fondling etc. The result was that a regular aggravated assault on anyone committed by other prescribed means was punishable by provisions of Article 1148, Penal Code 1925 — a maximum of two years confinement and a thousand dollar fine— whereas an assault that constituted child battering, as denounced by newly enacted Article 1148a, supra, was punishable by confinement for a maximum of five years. As thus reviewed and analyzed the essential purposes of Senate Bill 445, as I see them, were to regard a child like any other person as a victim of aggravated assault — retaining, however, a special distinction for cases of sexual abuse of a child under the age of fourteen years — but to provide additional protection from the more serious as-saultive offense of inflicting serious physical injury on a child, rather than to add 365 days to the settled application of the age of a “child.”
      In this connection my view seems supported by the Practice Commentary following § 22.04, which states:
      “The section restores prior Article 1148a, enacted in 1971, but substantially increases the penalty of that former offense.
      * * * ‘Child’ was defined by the courts as a male younger than 14 and female younger than 12, e. g., Wilman v. State, [63 Tex.Cr.R. 623,] 141 S.W. 110 (Cr.App.1911). Section 22.04 standardizes the deñnition for both sexes at age 14 . . . ”

      . As noted in Introduction to 1973 Revision, Texas Penal Code, the draft that was introduced in 1971 “was not acted on by either house,” 1 V.T.C.A. Penal Code vii.


source: Caselaw Access Project

author: TOM G. DAVIS, Judge. CLINTON, Judge,

license: Public Domain

text:
    Ex parte Larry James SANDERS.
    No. 60221.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 24, 1979.

      Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Petitioner seeks relief under a post-conviction writ of habeas corpus brought under the provisions of Art. 11.07, V.A.C.C.P. Petitioner was convicted of the offense of robbery in Cause No. 76734 in Criminal District Court No. 3 of Tarrant County. Punishment, enhanced by a prior felony conviction of like character, was life (See Art. 62 of the former Penal Code).

On original submission, the panel concluded that at the time petitioner’s prior conviction (made final at a revocation of probation proceeding) was proved at his robbery trial, the denial of counsel at a probation revocation hearing had not yet been established as a defect of constitutional magnitude and that his failure to object to its introduction did not constitute waiver. The panel found that our opinion in Crawford v. State, 435 S.W.2d 148 (Tex.Cr.App.), making the right to counsel at a revocation hearing retroactive being delivered 13 days prior to petitioner’s trial was not enough time to put petitioner’s counsel on notice that a valid objection existed to the use of the prior conviction for enhancement and, hence, there should be no waiver of a right that was unknown.

Failure to object to proof of a void conviction has been held to constitute waiver. Ex parte Gill, 509 S.W.2d 357 (Tex.Cr.App.). Where the defect which renders the conviction void has not been established as a defect of constitutional magnitude the failure of counsel to object does not constitute waiver. Ex parte Casarez, 508 S.W.2d 620 (Tex.Cr.App.); Ex parte Taylor, 484 S.W.2d 748 (Tex.Cr.App.).

In its Motion for Rehearing, the State contends that the panel opinion erroneously placed the burden of proof upon the State. Specifically, the State complains of the following portion of the original opinion:

“. . . A waiver of constitutional rights will not be lightly inferred, and courts will indulge every reasonable presumption against the waiver of fundamental constitutional rights. Johnson v. Zerbst, 304 U.S. 458 [, 58 S.Ct. 1019, 82 L.Ed. 1461] (1938). In cases involving the right to counsel, a heavy burden rests on the prosecution to show an intelligent, knowing, and voluntary waiver. Miranda v. Arizona, 384 U.S. 436 [, 86 S.Ct. 1602, 16 L.Ed.2d 694] (1966). Here the State offered no proof that the applicant or his counsel knew of a valid objection and waived it. Given the particular time sequence involved, we will not hold that the applicant waived his right to object to proof of the void prior conviction.”

We have held that in a habeas corpus action the petitioner has the burden of proof. See, Ex parte Rains, 555 S.W.2d 478 (Tex.Cr.App.); Ex parte Clark, 537 S.W.2d 40 (Tex.Cr.App.). We conclude that in the instant cause petitioner had the burden of proving why his failure to object to the use of the prior conviction did not constitute a waiver. No such proof was offered at the evidentiary hearing held in the trial court. The panel found that because of the time sequence involved, petitioner was excused from voicing an objection.

In Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 it was held that the appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of the accused may be affected and that such a stage includes a proceeding for revocation of probation. The opinion in Mempa was delivered by the Supreme Court on November 13, 1967. Thus, this opinion was delivered approximately 13 months before petitioner’s trial at which the void prior conviction was used for enhancement.

In McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 the Supreme Court held that its decision in Mempa v. Rhay, supra, was to be given full retroactive application. The opinion in McConnell was delivered on October 14, 1968, approximately two months before petitioner’s trial.

Our original opinion in Crawford v. State, supra, holding that Mempa v. Rhay was not to be applied retroactively was delivered on September 16, 1968. On November 27, 1968, the opinion on Appellant’s Motion for Rehearing in Crawford v. State, supra, recognized that Mempa v. Rhay, supra, was to be given retroactive application. The opinion on rehearing was delivered almost two weeks prior to petitioner’s trial.

We hold that petitioner’s failure to object when the complained of prior conviction was offered into evidence constituted a waiver of the claimed right.

The State’s Motion for Rehearing is granted and the relief sought by petitioner is denied.

CLINTON, Judge,

dissenting.

In per curiam opinion delivered February 28,1978 in this very case the Court ordered the trial court to hold a habeas corpus evi-dentiary hearing. To the argument of the State that Sanders “was not constitutionally entitled to counsel during the probation revocation proceedings in 1965,” the Court wrote:

“We further note that at the time of petitioner’s conviction in 1968, the law as to whether defendants were entitled to counsel during probation revocation proceedings was so unsettled as to hold that there was an intentional and knowing waiver of this contention due to trial counsel’s failure to object. See Ex parte Casarez, 508 S.W.2d 620 (Tex.Cr.App.1974). We are, therefore, of the opinion that petitioner’s application states facts which, if true, may entitle him to relief.

Essentially the same facts remain before us after the evidentiary hearing and its record, with findings of fact and order below, was recertified and transmitted to the Court. Why, then, is our applicant not entitled to relief today — just as the Court said he was almost two years ago? The majority must believe that things have changed for the better since their February 28, 1978 appraisal of the situation. But they have not and because they have not, I respectfully dissent and, in doing so, propose to demonstrate that failure of trial counsel to object to admission of the prior conviction cannot reasonably constitute an intentional and knowing waiver of the contention now made.

June 3, 1964, analogizing it to an earlier holding that a probationer is not entitled to a jury trial on the issues of revocation, the Court held in Ex parte Crawford, 379 S.W.2d 663 (Tex.Cr.App.1964) that an indigent probationer was neither entitled to an appointed counsel during revocation proceedings. Perhaps in response to Crawford, Article 42.12, § 3b, V.A.C.C.P., effective January 1, 1966, mandated appointment of counsel upon request. However, the Court refused to find the requirement was to be applied retroactively, holding that' Crawford “still applies to hearing on motions to revoke probation held prior to January 1, 1966,” Ex parte Williams, 414 S.W.2d 472, 474 (Tex.Cr.App.1967). The view was reaffirmed in Ex parte McCarter, 415 S.W.2d 409, 411 (Tex.Cr.App.1967), and there the Court also pointed out the distinction between initial suspension of imposition of sentence and suspension of execution of an imposed sentence when one is placed on probation, noting that the 1965 Code of Criminal Procedure provided only for suspension of imposition of sentence when probation is granted.

Decided November 13, 1967 were Mempa v. Rhay and Walkling v. Washington State Board of Prison Terms and Paroles, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). Because the majority pointedly notes that “this opinion was delivered approximately 13 months before petitioner’s trial at which the void prior conviction was used for enhancement,” a closer look at that opinion is instructive on the issue now before us. Mempa pled guilty and was “placed on probation . . . and the imposition of sentence was deferred” pursuant to Washington law, id. at 130, 88 S.Ct. at 255; at the subsequent revocation hearing without counsel the trial court “immediately entered an order revoking petitioner’s probation and then sentenced him to 10 years in the penitentiary,” id. at 131, 88 S.Ct. at 255. Walkling likewise pled guilty and “was placed on probation . . . and the imposition of sentence was deferred,” id. at 132, 88 S.Ct. at 255; at the later counselless hearing the trial court “revoked probation and imposed the maximum sentence of 15 years,” id. at 133, 88 S.Ct. at 255. Relying on earlier principles concerning right to counsel, “at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected,” id. at 134, 88 S.Ct. at 257, the Supreme Court alluded to several substantial factors and then concluded and held, id. at 137, 88 S.Ct. at 258:

“In sum, we do not question the authority of the State of Washington to provide for a deferred sentencing procedure coupled with its probation provisions. Indeed, it appears to be an enlightened step forward. All we decide here is that a lawyer must be afforded at this proceeding whether it be labeled a revocation of probation or a deferred sentencing.”

Thus, each case presented an original procedure in which the guilty pleading defendant was placed on probation and imposition of sentence was deferred — much as our own procedure now is to suspend — and, at the subsequent revocation hearing, was afforded an opportunity to influence a determination of the length of time he might have to serve, to effectuate his right of appeal from the original conviction and, perhaps, manage to withdraw his initial plea of guilty— none of which was legally available to a similarly situated probationer in Texas in 1967, certainly not for one whose sentence had been imposed but execution suspended.

At this point in the chronological development of the right of an indigent probationer to appointed counsel in revocation proceedings the questions that become pertinent to a competent lawyer handling such a case are, first, whether Mempa v. Rhay is fully retroactive and, if so, second, whether its holding is applicable in the situation where execution of an imposed sentence is suspended when an accused is placed on probation, as distinguished from suspension of imposition of sentence. The critical period in this appeal is said to be during the robbery trial held December 8-10, 1968. May it reasonably be attributed to a competent attorney an awareness during that period of time that on May 18, 1965, when appellant’s probation was revoked without assistance of counsel, as an indigent, he was entitled to be represented by court appointed attorney?

Recall, now, that just a year earlier this Court held flatly in Crawford v. State, supra, (Crawford One) that appointment of counsel was not constitutionally required and, further, the legislative mandate in Article 42.12, § 3(b), supra, that counsel be provided was not retroactively applicable to hearings on motion to revoke held prior to January 1, 1966, e. g., Ex parte Williams and Ex parte McCarter, supra. Thus, as the matter stood in Texas for some ten months after Mempa v. Rhay decided it under Washington statutory law, a practitioner could fairly conclude that as of May 18, 1965, an indigent Texas probationer was neither constitutionally nor statutorily entitled to a court appointed attorney in his revocation hearing.

Then, September 16, 1968, along came Crawford Two, 435 S.W.2d 148 (Tex.Cr.App.1968). After original submission, with two members of the then five judge Court dissenting, the Court expressly stated its only concern was with the effect of Mempa v. Rhay, supra, noted lack of citation to any holding by the Supreme Court that it is to be applied retroactively and, adhering to Ex parte Williams and Ex parte McCarter, supra, the majority was “not inclined to so hold” for retroactive application of Mempa v. Rhay. The dissenting opinion noted that when Crawford was initially granted probation in 1950 imposition of sentence was suspended, reviewed the nature of revocation proceedings in Texas, argued strongly for retroactive application but agreed that Article 42.12, § 3b, supra, was purely retrospective and suggested that Crawford was still entitled benefit of Mempa v. Rhay because “his (1955) conviction is not yet final in view of his out of time appeal,” Crawford Two, 435 S.W.2d at 155.

October 18, 1968, in McConnell v. Rhay and Stiltner v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968), two more cases from the State of Washington, the Supreme Court held that Mempa v. Rhay should be applied retroactively. In similar proceedings under the same Washington law governing Mempa and Walkling, probation of McConnell and Stiltner was revoked “at their deferred sentencing hearings.” In so doing the Supreme Court thought the right to counsel “related to ‘the very integrity of the fact-finding process’,” because, as in Mempa, the necessity for aid of counsel in marshaling facts, showing mitigating circumstances and generally “assisting the defendant to present his case as to sentence.” Accordingly, the Supreme Court held, “The right to counsel at sentencing must, therefore, be treated like the right to counsel at other stages of adjudication.”

November 27, 1968 on appellant’s motion for rehearing in Crawford Two, this Court noted the opinion in McConnell v. Rhay and Stiltner v. Rhay and, without more, reversed the judgment of conviction, 435 S.W.2d at 155.

Assuming that court appointed trial counsel preparing to try one of three separate cases of robbery, all alleged to have been committed the same night, and assembling his defensive evidence of temporary insanity by reason of psychomotor epilepsy, somehow learned of the Supreme Court decision during the seven weeks and of the Crawford Two opinion on rehearing during the eleven days before trial, what is he to make of them with respect to his client’s case?

First, that in the State of Washington where sentence is deferred and in Texas where imposition of sentence is suspended when a defendant is placed on probation, the indigent probationer is entitled to have and, whenever it occurred, should have been represented by appointed counsel during revocation proceedings.

Second, but as to one whose execution of an imposed sentence is suspended, neither the Mempa line of cases nor Crawford Two directly address the point. Indeed, by constant references to the kinds of aid and assistance counsel may render at sentencing, the opinions would at least strongly imply that unless those opportunities for competent counsel exist — as certainly they do not when the only sentencing is to lift the suspension of its execution — appointment of counsel is not required. Using slightly different terminology, the point was being made on the same day in June 1968 by two federal judges in different parts of this State: On June 3,1968 District Judge Noel in Sammons v. United States, 285 F.Supp. 100 (S.D.Tex.1968), refused to vacate a sentence on grounds that an accused was not informed of the right to, and did not have, counsel at his probation revocation hearing. Also on June 3, 1968, Chief Judge Fisher in Holder v. United States, 285 F.Supp. 380, 382 (E.D.Tex.1968) refused leave to appeal in forma pauperis from a denial of a similar motion made on virtually the same contention. If these views of the holding in Mempa are correct, then that McConnell made it retroactive is of no moment whatsoever. In any event, as the Court said earlier in the order directing an evidentiary hearing, the applicable law was “so unsettled” in 1968. Trial counsel is not to be faulted for finding it in such an unstable condition that he felt an objection was untenable.

Finally, it is at least ungracious of the majority to attribute to trial counsel an understanding of the very question posed here that the Court itself did not come to until almost two years after Crawford Two. Finding in Ex parte Bird, 457 S.W.2d 559 (Tex.Cr.App.1970) that the habeas court below erroneously concluded that applicant had waived assistance of counsel at his probation revocation hearing, the Court — for the first time ever that we have been able to discover — concluded as follows, id. at 561:

“After due consideration, we have reached the conclusion that the fact the execution of the sentence was suspended rather than the imposition thereof when the petitioner was placed on probation in 1956 (See Article 781v, V.A.C.C.P., then in effect and Ex parte March, Tex.Cr.App., 423 S.W.2d 916) does not call for a different result than what we eventually reached in Crawford v. State, supra, and related cases . . .”

I would not require that an otherwise competent lawyer anticipate at a December 8— 10, 1968 trial that this Court would rule September 4, 1970 in such a way that an objection, had it been made, might ultimately be found to be good.

The injustice imposed by the majority for the Court presages its repetition, for there are bound to be many convicts similarly situated. I prefer to correct it now and, because the Court does not, I earnestly dissent.

ROBERTS and PHILLIPS, JJ., join.

      . We note that since January 1, 1966, V.A.C. C.P. Art. 42.12, Sec. 3b, has provided for the appointment of counsel for an indigent probationer at a revocation hearing. Although this Article became effective some six months after petitioner’s probation was revoked in his prior conviction, it had been in effect some three years at the time the void prior conviction was used for enhancement.

      . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

      . Right to counsel during revocation proceeding having since been elevated to constitutional status, a request seems no longer a prerequisite, Ex parte Bird, 457 S.W.2d 559, 561 (Tex.Cr.App.1970); cf. Ex parte Vestal, 468 S.W.2d 372 (Tex.Cr.App.1971) and Ex parte Rains, 555 S.W.2d 478, 482 (Tex.Cr.App.1977).

      . Because sentence is not actually imposed in the first situation unless and until probation is revoked, among other consequences is that the trial court retains authority it lost, after expiration of term of court, when execution of an imposed sentence was suspended to amend, alter or modify the sentence. See, e. g., Ex parte Minor, 167 Tex.Cr.R. 170, 319 S.W.2d 114 (Tex.Cr.App.1959); Ex parte March, 423 S.W.2d 916 (Tex.Cr.App.1968).

      . A requirement of Washington law, as the Supreme Court explained in its note 2, id. at 131, 88 S.Ct. 254.

      . The Court was impressed by the opportunities for counsel to help “in marshaling the facts, introducing evidence of mitigating circumstances and in general aiding and assisting the defendant to present his case as to sentence,” to protect right of appeal from the original conviction — available in Washington only after sentence is imposed following revocation of probation — and to advise withdrawal of the initial plea of guilty, as permitted by Washington law at any time prior to imposition of sentence, id. at 135-136, 88 S.Ct. at 257.

      . The provision of Article 42.12, § 8, V.A.C. C.P., for reducing the term of imprisonment originally assessed was not added until Acts 1973, 63rd Leg., ch. 464, p. 1269, § 1. An appeal not taken from conviction when probation is granted is waived, McMillan v. State, 166 Tex.Cr.R. 15, 310 S.W.2d 116 (Tex.Cr.App.1958), and the only issue thereafter is whether in revoking probation the trial court abused it’s discretion, Pitts v. State, 442 S.W.2d 389 (Tex.Cr.App.1969). Our rule is that a plea of guilty, voluntarily and understanding^ made, waives all nonjurisdictional defects, including due process deprivations, Helms v. State, 484 S.W.2d 925 (Tex.Cr.App.1972). Though one may imagine an extraordinary state of facts calling for the grant of a new trial, once the time for presenting the motion has expired a revocation hearing is not the proper forum for that hearing “affects sentencing only, not conviction,” Nealy v. State, 500 S.W.2d 122, 125 (Tex.Cr.App.1973). Unless subject to chal: lenge through application of writ of habeas corpus, collateral attacks on the original conviction are not permitted, Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972), Martinez v. State, 494 S.W.2d 545 (Tex.Cr.App.1973) and Taylor v. State, 482 S.W.2d 246 (Tex.Cr.App.1972).

      . One whose training and experience bring one within the range of competence required of attorneys representing defendants in criminal cases, Parker v. North Carolina, 397 U.S. 790, 797, 90 S.Ct. 1458, 1462, 25 L.Ed.2d 785 (1970).

      . See note 2, supra.

      . Denominating it as such for purposes of this opinion, we note with some appreciation for persistence that actually Johnny Crawford, with counsel or pro se, attempted to fend off his original ,1951 assault with intent to rob conviction, after revocation of probation, for some 13 years; see Crawford v. State, 162 Tex.Cr.R. 95, 282 S.W.2d 222 (Tex.Cr.App.1955); Crawford One, supra; Crawford v. Beto, 383 F.2d 604 (5 Cir. 1967) and Crawford v. State, 435 S.W.2d 148 (Tex.Cr.App.1968) (Crawford Two), in which he finally succeeded.

      . While the Crawford One Court did not couch its holding in constitutional terms, it relied solely on Wilson v. State, 156 Tex.Cr.R. 228, 240 S.W.2d 774 (Tex.Cr.App.1951) which did: “Obviously, therefore, the proceeding to revoke probation is not a trial, as that term is used and contemplated by the Constitution in reference to criminal cases, and is not a proceeding required to be conducted as such a trial,” Wilson, supra, 240 S.W.2d at 776.

      . See Sanders v. State, 449 S.W.2d 262 (Tex.Cr.App.1969) and Sanders v. State, 450 S.W.2d 871 (Tex.Cr.App.1970).

      . The indictment in this case was returned October 17, 1968; counsel was appointed October 30, 1968 and contemporaneously the case was set for trial December 9, 1968. In these circumstances the following scenario is easily conceived: At the outset counsel noted the enhancement paragraph in the indictment, checked the facts of the matter from court records and his client, read the law from Crawford One through the other opinions discussed above in the instant one to the original opinion in Crawford Two and concluded that this Court, remaining steadfast in its position, had foreclosed any objection as late as September 16, 1968, by rejecting the strongly stated dissenting opinion. Having thus satisfied that aspect of his duty as appointed counsel, and reasonably believing the settled rule would remain intact at least another six weeks, he then moved on to prepare to meet the case for the State on the merits and to present his client’s defense.

      .“In the State of Washington where the Mempa case arose, it was the sentencing itself that is deferred. Here, it is merely the imposition of sentence that is deferred. Thus, the holding in Mempa, that an indigent is entitled to counsel at sentencing, whether deferred or otherwise, is not controlling here. (Other cases) stand for the proposition that appointment of counsel is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected. That sentencing is such a stage is no longer open to questioning. * * *

        The revocation hearing here was not such a stage of the criminal proceedings.”

      . “This Court reiterates that the Washington Probation Act provides for sentencing at the revocation of probation hearing, whereas in the Federal Court the sentencing process is complete at the trial level, and the revocation hearing is simply a judicial determination as to whether the privilege of conditional liberty should be forfeited.”

      . Indeed, just two years ago the same distinction this Court made in, e. g., Ex parte March, supra, was acknowledged in Loud v. Estelle, 556 F.2d 1326, 1329 (5 Cir. 1977); see also Gill v. Estelle, 544 F.2d 1336, 1339 (5 Cir. 1977), cert. denied, 431 U.S. 924, 97 S.Ct. 2199, 53 L.Ed.2d 239 (1977).


author: DICKENSON, Justice.

text:
    Van B. BULLARD, Appellant, v. R. E. BROADWELL et al., Appellees.
    No. 5339.
    Court of Civil Appeals of Texas, Eastland.
    Aug. 23, 1979.
    Rehearing Denied Oct. 4, 1979.
    Stephen H. Suttle, Abilene, for appellant.
    Charles R. Griggs, Sweetwater, John Hill, Houston, for appellees.
   DICKENSON, Justice.

The primary purpose of this lawsuit is to establish the rights and duties, as between themselves, of the owners of the oil, gas and minerals in a certain tract of land. Van B. Bullard acquired an undivided one-third mineral interest, subject to his grant- or’s right to execute oil, gas and mineral leases. R. E. Broadwell and wife acquired all of the surface ownership in this tract of land, an undivided two-thirds mineral interest, and the right to execute leases which would bind the entire mineral interest.

R. E. Broadwell and his family drilled a producing oil well. They sought to pay Bullard one-third of the usual one-eighth royalty on oil and gas produced from the jointly owned tract. There is no valid oil and gas lease, and Bullard insists that he should receive one-third of the value of all oil and gas produced, less one-third of the expenses of drilling, completing and operating the oil well.

After a nonjury trial, the district court entered judgment that Bullard was only entitled to recover “an amount of money equal to one-third of the usual and customary one-eighth royalty.” Bullard appeals. We reverse and remand with instructions.

Bullard’s first four points of error contend that the trial court erred in entering judgment that he is entitled to only a royalty interest of one-third of one-eighth of the oil and gas. We agree.

Our Supreme Court stated in Cox v. Davison, 397 S.W.2d 200 (Tex.1965):

The Texas rule is that a cotenant who produces minerals from common property without having secured the consent of his cotenants is accountable to them on the basis of the value of the minerals taken less the necessary and reasonable cost of producing and marketing.

Broadwell did not secure Bullard’s consent to the exploration and production of oil from this tract by the Broadwell family. We feel that Cox v. Davison, supra, is controlling. Broadwell had the right to execute oil, gas and mineral leases which would bind the interest owned by Bullard, but the trial court found that the lease executed by Broadwell had expired. Neither side appealed that portion of the judgment. The provision in the mineral deed to Bullard for one-third of all royalty was conditioned upon “the terms of any such lease or leases.” In the absence of a valid lease, Bullard is not limited to one-third of the royalty interest; he is entitled to a full one-third mineral interest, less his pro rata share of the reasonable costs of producing and marketing the oil and gas.

Broadwell insists that Cox v. Davison, supra, is not controlling and that Bullard should be treated as a cotenant who has “consented by implication” to the development of the property by his cotenant and is, therefore, due only an undivided one-third of the usual one-eighth royalty. We cannot agree. It is true that Broadwell had the right to execute oil and gas leases under which Bullard would share pro rata in all of the benefits, but this right does not give Broadwell and his family the right to develop the property and retain all of the benefits except for the 1/24 royalty which they concede to Bullard. See Portwood v. Buckalew, 521 S.W.2d 904, at 911 (Tex.Civ.App.—Tyler 1975, writ ref’d n. r. e.).

Broadwell admits that he has found no Texas case dealing with this exact problem, but he cites 2 Williams and Meyers, Oil and Gas Law § 329 (1959) which discusses production by a mineral owner without a lease where there is an outstanding “non-executive mineral interest.” The authors suggest that the mineral owner who secures production must account to the non-executive mineral owner for a portion of gross production determined by multiplying the non-executive’s fractional interest times the usual royalty in the area. The authors cite no cases for their suggestion, and they concede that:

If the interest is considered a concurrent interest, and its owner a cotenant, then the cotenancy rule could be applied. Under this rule, the non-executive mineral owner would take his fraction of gross production less his fraction of the cost of drilling, equipping and operating the wells.

We decline to follow the authors’ suggestion, and we hold that the cotenancy rule applies.

The fifth point of error contends that Broadwell breached his fiduciary duty to Bullard by giving a lease to his son and taking a reassignment of that lease. This point has become moot and will not be discussed in view of the trial court’s holding that the lease had expired before the commencement of operations.

The sixth point of error contends that the trial court erred in failing to hold that Bullard was entitled to recover from Summit Gas Company, the oil purchaser, the value of one-third of the oil produced from the land, plus interest, as a result of the purchaser’s “knowing conversion” of the oil. The record does not show that Summit converted any oil belonging to Bullard, and this point of error must be overruled. Broad-well and his family had the right to sell all of the oil produced until they recovered all of the reasonable costs of drilling, completing and operating the oil well on this tract of land. Moreover, the trial court’s judgment provides that “certain funds accruing from the sale of oil and gas” from this tract are to be paid to the District Clerk and invested at interest pending the appeal of this case. These would appear to be the funds attributable to Bullard’s mineral interest.

The judgment of the trial court is reversed, and the cause is remanded with instructions for an accounting on the basis that R. E. Broadwell and family are entitled to recover all of the reasonable and necessary costs of drilling, completing and operating the oil and gas well on this tract and that Van Bullard is to then recover the value of one-third of all oil and gas production, less his pro rata share of the reasonable costs of producing and marketing the oil and gas.


author: PHILLIPS, Chief Justice.

text:
    Bob BULLOCK, Comptroller of Public Accounts, et al., Appellants, v. RAMADA TEXAS, INC., Appellee.
    No. 12997.
    Court of Civil Appeals of Texas, Austin.
    Sept. 5, 1979.
    Rehearing Denied Oct. 3, 1979.
    Mark White, Atty. Gen., Gilbert J. Ber-nal, Jr., Asst. Atty. Gen., Austin, for appellants.
    Richard F. Smith, Wynne & Jaffe, Dallas, for appellee.
   PHILLIPS, Chief Justice.

Appellee sued appellants for recovery of $21,811.83 in franchise taxes, penalties and interest paid under protest, pursuant to Article 1.05, Title 122A, V.C.S. (1969).

The facts hereto were stipulated and the court, sitting without a jury, rendered judgment for appellee. Subsequently, appellants perfected their appeal to this Court.

We affirm.

The question before us is whether the trial court was in error in holding that only property owned by appellee on January 1, 1973, is to be included in computing appel-lee’s franchise tax under Article 12.01(l)(b), Title 122A, V.C.S., for the fiscal year ending December 31, 1973.

Appellee’s protest was based solely on the ground that appellant Comptroller did not use the proper date for measuring appel-lee’s property under Article 12.01(l)(b) for the privilege of doing business in this state and in computing appellee’s franchise tax liability.

It was stipulated that:

“In determining the county assessed value of the property owned by Ramada in Texas for the 1974 Franchise Tax Report, Ramanda used the county assessed value of the property held or owned by it on January 1, 1973. Property acquired by Ramada during its 1973 accounting year, even though on hand and owned by Ramada on December 31, 1973, had no county assessed value to Ramada on January 1, 1973, and was not included by Ramada for the purposes of computing the tax. Property sold by Ramada during its 1973 accounting year, even though not on hand and not owned by Ramada on December 31, 1973, had a county assessed value to Ramada on January 1, 1973, and was included by Ramada for the purpose of computing the tax.”

The deficiency in franchise taxes levied against Ramada was based solely on the Comptroller’s theory that the valuation date of the county-assessed property owned by appellee should have been December 31, 1973, and not January 1, 1973, as contended by appellee.

The pertinent parts of Article 12.01 are as follows:

“(1) Except as otherwise provided in this chapter, every domestic corporation . . . shall file such reports as are required by Articles 12.08 and 12.19 and pay to the Comptroller a franchise tax for the period from May 1 of each year to and including April 30 of the following year, based on whichever of the following Subsections (a), (b), or (c) shall yield the greatest tax:
“(b) Four Dollars and Twenty-five Cents ($4.25) per $1,000 or fractional part thereof applied to the assessed value for county ad valorem tax purposes of the real and personal property owned by the corporation in this state . . . .”

Appellants contend that Article • 12.-01(l)(b) must be read with Article 12.08 which states as follows:

“(1) Except as herein provided all corporations required to pay an annual franchise tax shall, between January first and June 15 of each year, make a report to the Comptroller of Public Accounts on forms furnished by that officer, showing the condition of such corporation on the last day of the corporation’s preceding fiscal year.
“(2) The report shall also contain any other information concerning the corporation that the Comptroller of Public Accounts shall direct.”

Appellants point to that portion of Article 12.01 which states “ . . . every domestic and foreign corporation shall file such reports as are required by Articles 12.08 and 12.19 . . . ”

Appellants argue that the plain and simple wording of the statutes requires that the above-quoted portion of Article 12.01 be read with that part of Article 12.08 requiring that a report be filed “showing the condition of such corporation on the last day of the corporation’s preceding fiscal year.” Article 12.19 has no pertinence here. We cannot agree with appellants for several reasons.

In Houston Oil Company of Texas v. Lawson, 175 S.W.2d 716 (Tex.Civ.App.1943, writ ref’d), decided two years after the enactment of the predecessor of Article 12.-01(l)(b), the court noted that the Secretary of State, who then administered the tax, had required the taxpayer to include the assessed value on January 1 on property owned by the taxpayer on January 1. The statutes in question in Lawson are strikingly similar and are the predecessors to those at bar and include the language relied on by the State in Article 12.08.

The reason for January 1 is a reasonable one. It is evident from a reading of Article 12.01(l)(b) that the assessed value of a taxpayer’s property is used in measuring the value of the right to do business in the state. See General Dynamics Corporation v. Bullock, 547 S.W.2d 255 (Tex.1976). The system for assessing and collecting ad valorem taxes in Texas requires the property to be assessed as of the first day of January, and a taxpayer pays taxes only on property which he owns on January 1. Article 7151, V.C.S. (Supp. 1978-1979). There is no reason to adopt a different set of rules for that portion of the franchise tax which is measured by the property tax.

In 1953 Attorney General’s Opinion No. S-196, in discussing facts and a franchise tax statute closely related to those before us, ruled that January 1 was the correct date for determining ownership and pointed out that the Secretary of State (who administered the collection of taxes under the Franchise Act at that time), had consistently used the January 1 ownership date in interpreting the statute for more than fifteen years and that the legislature had acquiesced in that interpretation. Unless the statute unambiguously supports the position of appellants, appellee was entitled to rely upon the opinion of the Attorney General. See Trinity Portland Cement Company v. State, 144 S.W.2d 329 (Tex.Civ.App.1940, writ ref’d). Indeed, the failure by the legislature to change the law with respect to the view proposed by appellants, in spite of its many amendments and recodifications over the years, indicates legislative acceptance which must be honored. See Humble Oil & Refining Company v. Calvert, 414 S.W.2d 172, 180 (Tex.1967).

In our judgment there is ambiguity in the construction of the statutes before us; however, the course followed by the court, the Attorney General, and the administrative agency for these many years as we have described above, is both reasonable and well founded.

Article 12.08 is not a taxing statute. The tax is both imposed and defined in Article 12.01. Article 12.08 prescribes reports to be filed and not property to be taxed. The reference to Article 12.08 in Article 12.01 does no more than duplicate the requirement that the report be filed, and, hardly incorporates Article 12.01 indiscriminately into Article 12.08.

There is also a persuasive argument that the language of Article 12.08 relied upon by appellants “showing the condition of such corporation on the last day of the corporation’s preceding fiscal year,” was intended only to apply to the basic tax of Article 12.01(l)(a), and not to the alternative tax in Article 12.01(l)(b).

Article 12.01(l)(a) basic tax is measured by capital and surplus, which are traditionally reported by accounts as of the last day of a corporation’s fiscal year. The quoted language from Article 12.08 has been part of the franchise tax statute in substantially its present form since 1919 (Y.C.S., Vol. 20A, p. 478), whereas Article 12.01(l)(b) was not even imposed until 1941, twenty-two years later. When adopted, the language in Article 12.08 referred to the capital and surplus provisions of Article 12.01(l)(a) franchise tax, and there is no reason to believe the legislature intended to expand its scope when the alternative Article 12.-01(l)(b) tax was added.

We affirm the judgment of the trial court.


author: SUMMERS, Chief Justice.

text:
    Melba Rheudell BURRELL, Appellant, v. J. R. CORNELIUS et al., Appellees.
    No. 1082.
    Court of Civil Appeals of Texas, Tyler.
    Sept. 20, 1979.
    Rehearing Denied Oct. 18, 1979.
    Ben L. Krage, Dean Carlton, Kasmire, Willingham & Krage, Dallas, for appellant.
    Joe W. Lovelace, Lovelace & Thompson, Inc., Linden, James R. Cornelius, Zeleskey, Cornelius, Rogers, Berry & Hallmark, Luf-kin, for appellees.
   SUMMERS, Chief Justice.

This is an appeal from an order of the trial court granting a summary judgment that Melba Burrell, plaintiff below, take nothing. Melba Burrell, appellant, initiated this suit against J. R. Cornelius, individually and d/b/a Cornelius & Cornelius, and d/b/a C & H Abstract Company, and C & H Abstract Company, appellees, to recover one half of the proceeds from the sale of what appellant alleges to have been community homestead property. Appellant contends that appellees wrongfully disbursed her share of these funds to her husband, Sidney Burrell, and other persons.

Appellant was married to Sidney Burrell on October 12, 1957. During this marriage, the Burrells acquired a farm in Marion County, Texas, which became their community homestead property. On February 7, 1974, Mr. Burrell signed a contract of sale to convey the farm to Dr. Clifford Swayze. C & H Abstract Company, a partnership composed of J. R. Cornelius and his son, Bill J. Cornelius, was employed to issue a title policy and to conduct the closing which included receipt and disbursement of the purchase money. The closing took place on April 4, 1974, in the offices of C & H Abstract Company. Dr. Swayze delivered a check for the purchase price in the amount of $184,375.00, and Mr. and Mrs. Burrell signed and delivered a warranty deed. The check for the purchase price was deposited by Mr. J. R. Cornelius, appellee, in the Cornelius & Cornelius trust account at the First National Bank of Jefferson.

A closing statement which listed the disbursements to be made by C & H Abstract Company had been prepared by Carolyn Cornelius, manager of C & H Abstract Company. Upon presentation of the closing statement, appellant questioned a number of the debts listed therein and allegedly instructed Carolyn Cornelius not to make any disbursements without her presence. Appellant also contends that she instructed Carolyn Cornelius not to give Mr. Burrell a check payable to him for the balance. However, the disbursements were completed by C & H Abstract Company by April 8, 1974, as follows:

1. 4/5/74 ' Atlanta National Bank $15,381.08
2. 4/5/74 First National Bank 11,926.50
3. 4/5/74 Farmers Home Admin. 32,206.65
4. 4/5/74 Farmers Home Admin. 21,783.41
5. 4/4/74 D. Reynolds Real Estate 5,550.00
6. 4/8/74 Jefferson I. S. D. 503.07
7. 4/8/74 County Tax Assessor 32.82
8. 4/8/74 Cornelius & Cornelius 615.00
9. 4/8/74 Sidney M. Burrell 96,208.57

Appellant directs no complaint towards disbursements Nos. 4 through 8, No. 4 representing the balance due on the mortgage, No. 5 for the real estate broker’s commission, No. 6 and No. 7 for taxes owed on the property, and No. 8 was Mr. J. R. Cornelius’ fee. Mr. Burrell testified, in his deposition, that disbursements Nos. 1 through 3 were necessary to pay off loans against real and personal property which was part of the sale to Dr. Swayze. The balance, $96,-208.57, was paid to Mr. Burrell contrary to appellant’s instructions. When the check, made solely to Mr. Burrell, was delivered, Mr. Cornelius required Mr. Burrell to execute a document in which he promised that appellant would receive her share. Upon receipt of the net proceeds, Mr. Burrell paid off a number of debts, including a loan on a car driven by Mrs. Burrell and possibly a loan on a pickup truck. The balance was used by Mr. Burrell to purchase a Certificate of Deposit at Security Savings Association in Texarkana in the amount of $84,-637.54.

On April 9,1974, Mr. Burrell filed suit for divorce against appellant. The record reflects that appellant filed an answer and a counterclaim. Appellant’s counterclaim specifically alleges, in part, that:

“Cross-petitioner and cross-respondent owned substantial property. Cross-respondent has fraudulently concealed community property and dissipated the assets of the community, in that the cross-respondent has fraudulently obtained the proceeds from sale of the community homestead and is hiding and secreting same from the cross-petitioner.”

During the course of the divorce litigation, Mr. Burrell filed an inventory and appraisement of all community property in his possession. In addition to other valuable property, such inventory included the Certificate of Deposit at Security Savings Association in the amount of $84,637.54. The divorce action between the Burrells resulted in a decree of divorce entered on June 11, 1975. The decree of divorce included an equitable division of the parties’ community property; neither party appealed, and the judgment became final.

Subsequent to the rendition of the divorce judgment, Melba Burrell, appellant, initiated the case presently before us. Appellant alleged that

“On April 8, 1974, unbeknownst to plaintiff, defendants distributed all of the $184,375.00 to others without plaintiff’s approval and contrary to plaintiff’s express instructions. Defendants knew or should have known that plaintiff’s husband did not have sole management and control of plaintiff’s community homestead nor the proceeds of the sale thereof. Plaintiff received from defendants no portion of the escrow proceeds from the sale of her homestead.”

Appellant alleged that such acts by appel-lees, contrary to her express instructions, constituted a breach of their fiduciary duty to appellant and perpetrated a fraud upon appellant. Appellant sought to recover actual damages in the amount of $92,187.50 and punitive damages in the amount of $275,562.50.

From the trial court’s order granting summary judgment that appellant take nothing, appellant has perfected this appeal predicated upon three points of error. Point of error No. 1 argues that the trial court erred in granting appellees’ summary judgment because genuine issues of material fact exist regarding the amount of damages. Appellant contends that the evidence failed to conclusively establish that the disbursements made by appellees were to pay the joint debts of appellant and Mr. Burrell and that the property division in the divorce decree is not evidence that appellant suffered no damages in this case. Appellant’s second point of error asserts that the trial court erred in granting appellees’ summary judgment because appellees were not entitled to judgment as a matter of law. The undisputed evidence, concludes appellant, establishes appellees’ liability to appellant on at least two claims, breach of fiduciary duty and liability based upon constructive fraud. Appellant contends that the decree of divorce between appellant and Mr. Bur-rell may not be relied upon by appellees as satisfaction of their responsibilities to appellant. Finally, point of error No. 3 asserts that the trial court erred in granting appellees’ summary judgment because the doctrine of res judicata does not bar appellant’s action.

We shall first address point of error No. 2 because we believe it to be dispositive of the case. Appellant argues that the decree of divorce between appellant and Mr. Bur-rell may not be relied upon by appellees as satisfaction of their responsibilities to appellant. Appellant takes the position that the community property division is simply irrelevant. Appellees respond by pointing out that the issue of the alleged fraudulent misappropriation of the proceeds of the sale in question was raised by appellant in the divorce suit. As a result, conclude appel-lees, the damages suffered by appellant, if any, were made whole by the community property division in the divorce action. We agree.

We shall assume, without deciding, that appellant was injured by misappropriation of the sale proceeds of her community homestead property. It is a well-settled rule that an injured party is entitled to but one satisfaction for the injuries sustained by such party. There being but one injury, there can, in justice, be but one satisfaction for that injury. T. L. James & Co., Inc. v. Statham, 558 S.W.2d 865, 868 (Tex.1977); Bradshaw v. Baylor University, 84 S.W.2d 703, 705 (Tex.Comm’n App.1935, opinion adopted); Gattegno v. The Parisian, 53 S.W.2d 1005, 1008 (Tex.Comm’n App. 1932, holding approved); Deal v. Madison, 576 S.W.2d 409, 414 (Tex.Civ.App.—Dallas 1978, no writ history). Appellant does not allege, nor does the evidence show, that the community property estate which was subject to division in the divorce action was insufficient to make appellant whole from any alleged misappropriation of the sale proceeds of the property in question. On the contrary, the record reflects that there was substantial community property present in which to satisfy any loss suffered by appellant. In addition, it is undisputed that none of the proceeds in question were retained by appellees for their benefit. We must conclude that the trial court correctly entered a summary judgment that appellant take nothing, because appellees were entitled to judgment as a matter of law.

We have considered appellant’s points of error and find them to be without merit. The judgment of the trial court is affirmed.


author: COUNTISS, Justice.

text:
    C. R. PICKENS and Wife, Babe Pickens, Appellants, v. T. L. BAKER, Appellee.
    No. 9012.
    Court of Civil Appeals of Texas, Amarillo.
    Sept. 21, 1979.

      C. J. Humphrey, Amarillo, for appellants.
    Ebelardo G. Lopez and John L. Owen, Asst. County Attys., Amarillo, for appellee.
   COUNTISS, Justice.

This appeal is from a judgment denying various judgment creditors recovery against the Sheriff of Potter County for his alleged failure or refusal to levy upon and sell property of the judgment debtor subject to execution. We affirm the judgment of the trial court.

On April 18, 1978, C. R. Pickens and various other creditors, appellants here, recovered judgment against Hamlet Baptist Church, also known as Bible Baptist Temple, in the principal sum of $6,277.50 plus interest, court costs and attorney’s fees. On May 25, 1978, the creditors obtained a writ of execution directing any Texas sheriff or constable to levy on and sell property of the church subject to execution sufficient to pay the judgment and costs. The writ was delivered to the Potter County Sheriff’s Office on the same date. Shortly thereafter, a deputy sheriff went to the church and discussed the matter with the pastor who agreed to prepare an inventory of the church property for the Sheriff’s use in determining which property was subject to execution.

The inventory was prepared and delivered to the deputy sheriff on June 6, 1978. It contained a list of personal and real property with notations as to various liens on the property, and a lengthy list of names of individuals who were described as “Lien-holder — Bondholders Under New Finance Program.” The information on the inventory was made available to the creditors’ counsel and on June 13,1978, counsel directed the Sheriff to levy on the office equipment and a church bus. The inventory listed a lien to the North State Bank of Amarillo on the office equipment. The deputy sheriff who was handling the matter advised the creditors’ counsel that he would have to “do some more checking” to determine whether the Sheriff’s office could levy on the property. The Sheriff then sought and received from the County Attorney of Potter County an opinion dated June 20,1978, outlining various areas of the law pertinent to the Sheriff’s right to require an indemnity bond before levying execution. Thereafter, the Sheriff requested an indemnity bond, which the creditors failed to provide.

The first writ of execution expired, and the creditors’ counsel asked the Sheriff’s office to return it so that a new writ of execution could be issued. The first writ was returned nulla bona and on July 10, 1978, a new writ was issued. Various discussions continued between the Sheriff’s personnel and the creditors’ counsel concerning a levy on the office equipment and the Sheriff’s request for an indemnity bond, but no levy was made and no bond was furnished. On July 31, 1978, the second writ was returned by the Sheriff’s office nulla bona. Prior to that date, the office equipment had been repossessed by the North State Bank.

The case now before this court originated on August 4, 1978, when the creditors filed a motion against the Sheriff seeking recovery under Article 3825, Tex.Rev.Civ.Stat. Ann. (1966) for the amount of the judgment because of the Sheriff’s failure to levy on the office equipment. Following a non-jury trial, judgment was entered for the Sheriff and the trial court filed findings of fact and conclusions of law supportive of its judgment.

The creditors bring forward twenty-one points of error which present three basic questions for decision by this court: First, under what circumstances may an officer require an indemnity bond from a judgment creditor before proceeding under a writ of execution; second, is there proper eviden-tiary support for the findings of fact of the trial court that justify the indemnity bond requested by the Sheriff in this case; and, third, is there an abuse of discretion by the trial court in permitting the Sheriff to file pleadings after the trial was in progress.

This case is founded on Article 3825, Tex. Rev.Civ.Stat.Ann. (1966) which states the potential liability of the Sheriff:

Should an officer fail or refuse to levy upon or sell any property subject to execution, when the same might have been done, he and his sureties shall be liable to the party entitled to receive the money collected on such execution for the full amount of the debt, interest and costs, to be recovered on motion before the court from which said execution issued, five days previous notice thereof being given to said officer and his sureties.

The right of a levying officer to require an indemnity bond was considered in depth in the case of Rankin v. Belvin, 507 S.W.2d 908 (Tex.Civ.App. — Houston [14th Dist.] 1974, writ ref’d n.r.e.). In that case, the court reviewed the cases establishing the right, analyzed the various approaches to the problem and stated the correct rule as follows:

. Based on these decisions, we hold that a levying officer has the right to require an indemnity bond before levying execution when, as a matter of his discretion, he has a reasonable doubt as to the ownership of the property, the enfor-cibility of the judgment, or other matters affecting the propriety of the execution.

Rankin v. Belvin, supra, at 911.

It is important to remember that the discretion granted to the levying officer is limited to situations where he has “reasonable doubt” in one of the three areas specified. The discretion thus granted does not encompass liens on the property, for as stated in U. M. & M. Credit Corporation v. Doss, 452 S.W.2d 45, 48 (Tex.Civ.App. — Dallas 1970, writ ref’d n.r.e.):

The mere fact that the property was mortgaged, if it was, did not justify the sheriff’s failure to levy the writ. Doss may have had an equity in the property which would have been subject to execution. Smothers v. Field, Thayer & Co., supra. The officer was unauthorized to determine in advance whether the property would at public auction bring more or less than the amount of the prior liens. Burkett v. Simmons Hardware Co., 52 S.W.2d 675 (Tex.Civ.App., Waco 1932, no writ). His only duty was to levy the execution on the property, advertise it for sale and hold the sale in accordance with the law.

In the case before this court, therefore, the Sheriff’s demand for an indemnity bond must be based on reasonable doubt within one of the three areas specified if his failure to levy on the office equipment is to be excused.

In its findings of fact, the trial court specifically found several times that the first ground existed, i. e., that the Sheriff entertained doubt as to the ownership of the office equipment. Those findings are attacked here by the creditors as being without support in the evidence or “so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.”

In considering this problem area, we are guided by well settled rules of appellate review. The “no evidence” point presents a question of law that requires the appellate court to consider only the evidence and inferences tending to support the finding under attack and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). Our review of the evidence under the foregoing standard reveals testimony and an exhibit which provide some evidentiary support for the finding in question. The “no evidence” point is, therefore, overruled.

The “insufficiency” point, on the other hand, invokes a broader standard which requires this court to consider all of the evidence in order to determine whether the evidence supporting the finding is so weak, or the evidence to the contrary so overwhelming, that the finding should be set aside and a new trial ordered. Garza v. Alviar, supra. In considering an “insufficiency” point, however, we are particularly cognizant of the role of the trier of fact. The trier of fact in this case, the trial judge, had the opportunity to observe the demean- or of the witnesses on the stand and to judge their credibility. It is his function to determine the weight to be given their testimony and to resolve conflicts in the testimony of one witness with another. He can believe all of a witness’ testimony, none of it or part of it while disregarding other portions. Within this framework, the findings of fact made by the trial court will be sustained if there is some evidence of probative value to support them, and they are not against the great weight and preponderance of the evidence. Even if the appellate court would have found facts contrary to those found by the trial judge (or jury) after reviewing the evidence, it cannot substitute its judgment for that of the fact finder if the findings meet the evidentiary test just stated. Loeb, Rhoades & Co. v. Stanley, 541 S.W.2d 869, 871-872 (Tex.Civ.App. — Corpus Christi 1976, no writ); Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex.Civ.App. —Amarillo 1977, writ ref’d n.r.e.).

This ancient and fundamental rule of appellate review recognizes an elemental aspect of human nature. The words we see at the appellate level are only a portion of the factors that are considered by the fact finder in evaluating the weight of the evidence. The witness’ believability is ascertained from the witness’ demeanor as well as from the words spoken. It is from the total activity in the arena that the fact finder forms the fundamental impressions that determine the facts.

In the case before us, we have carefully reviewed all of the evidence, in accordance with the foregoing standard, to determine whether there is sufficient evidentiary support for the findings that the Sheriff had doubts about the ownership of the office equipment. We have concluded that there is evidence of probative value to support the findings, and they are not so against the great weight and preponderance of the evidence as to be manifestly unjust. We therefore, overrule the insufficiency point.

That is not to say, however, that the evidence is clear and unequivocal. There are, in fact, internal inconsistencies within the testimony of each of the relevant witnesses, but the resolution of these inconsistencies is the trial judge’s responsibility. Two deputy sheriffs testified about the efforts made to levy on the office equipment. Their testimony, in summary, was that there was considerable confusion about the ownership of the office equipment and other church property and the nature of the interest claimed by the “Lienholder — Bondholders.” Each of the deputy sheriffs specifically testified to uncertainty and doubt about ownership of the property. They also testified that their concern was with the liens and not with ownership, and a fair reading of their testimony indicates they were equating liens on the office equipment with ownership interests in the office equipment. Their testimony, standing alone, is weak at best. The evidence also reveals, however, and the court found, that four days after the second writ of execution was issued, the Sheriff was given a copy of a promissory note and security agreement in favor of the North State Bank with the office equipment in question listed as collateral. The note was signed by three persons apparently in their individual capacities, and the church is not mentioned in the note or security agreement. In the security agreement the three signatories warrant that “debtor is absolute owner of the collateral . . . .” This exhibit, in conjunction with the testimony, is sufficient to support the trial court’s findings of doubts as to ownership. The doubts were reasonable in view of the warranty in the security agreement, and under the case law discussed above, the Sheriff was justified in requiring an indemnity bond before levying execution. Since the creditors did not furnish the bond, the Sheriff is not liable for his failure to levy on the office equipment.

The final problem area concerns the action of the trial court in permitting the Sheriff to file pleadings after the trial had begun. The creditors’ motion against the Sheriff was filed on August 4, 1978, and service was subsequently accepted by the Sheriff. The trial began on August 22, 1978, with no pleadings on file for the Sheriff. After the first day of trial, the case was recessed until August 24, 1978. On that date and before the trial resumed, the Sheriff filed an answer to the creditors’ motion, pleading among other things his defense of reasonable doubt as to ownership. The creditors’ counsel objected unsuccessfully to the filing of the pleadings but did not move for a continuance.

Rule 66, Tex.R.Civ.P. vests the trial court with broad discretion to permit filing of pleadings during the course of the trial and directs the court to “do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits. The court may grant a postponement to enable the objecting party to meet such evidence.” Absent an abuse of that discretion, there is no reversible error. Victory v. State, 138 Tex. 285, 158 S.W.2d 760, 763 (Tex.1942). In establishing an abuse of discretion, it is incumbent upon the complaining party to show both surprise and a request for a continuance to meet the surprise engendered by the new pleadings. H. O. Dyer, Inc. v. Steele, 489 S.W.2d 686, 688 (Tex.Civ.App. — Houston [1st Dist.] 1972, no writ).

We have reviewed the circumstances surrounding the filing of the pleadings in question, and we find no abuse of discretion. The trial judge had a reasonable basis for concluding that the creditors were not unduly surprised by the allegations of reasonable doubt as to ownership since that issue had already been discussed frequently by counsel, the Sheriff’s personnel and other persons before and during the trial. In any event, by failing to move for a continuance, the creditors are precluded from pursuing the objection before this court.

We have examined each of the creditors’ points of error and find that the foregoing discussion either disposes of them directly or renders them moot. Accordingly, the judgment of the trial court is affirmed.

      . For convenience the appellant judgment creditors will be referred to as “the creditors,” appellee Sheriff T. L. Baker of Potter County as “the Sheriff’ and the judgment debtor Hamlet Baptist Church, also known as Bible Baptist Temple, as “the church.”

      . The motion complained of the failure to levy on “all personal property” on the list provided by the church, but the creditors have pursued only the failure to levy on the office equipment.

      . The rule is limited to executions on personal property. If land is the subject of the execution, the Sheriff cannot be subjected to a suit for damages, Henry S. Miller Company v. Evans, 452 S.W.2d 426, 433-434 (Tex.1970) and he does not have the discretion to require an indemnity bond.

      . We realize that there is no evidence that a copy of the note and security agreement was furnished to the Sheriff before the first writ was returned nulla bona. While an argument could be made that the Sheriff did not have a reasonable basis for questioning title while the first writ was alive, there is testimony by one of the deputy sheriffs that indicates he met with one of the bank officers before the first writ had expired and saw the exhibit. In any event, the trial court found in an unchallenged finding of fact that the first writ was returned with the consent of the creditors’ counsel. Thus, no liability attaches to the Sheriff under the first writ. Matthews v. Perminter, 162 S.W. 1180 (Tex.Civ.App. — Texarkana 1913, no writ).

      . Of course, the ultimate resolution of the “ownership” question is immaterial. The inquiry is not whether some entity other than the judgment debtor did in fact own the property; it is whether there are facts before the levying officer that give him a reasonable basis for concluding that some entity other than the judgment debtor is claiming an ownership interest in the property.


author: STEPHEN F. PRESLAR, Chief Justice.

text:
    EL PASO NATIONAL BANK, in its representative capacity, et al., Appellants, v. SHRINERS HOSPITAL FOR CRIPPLED CHILDREN et al., Appellees.
    No. 6833.
    Court of Civil Appeals of Texas, El Paso.
    Sept. 26, 1979.
    Rehearing Denied Oct. 24, 1979.
    Grambling, Mounee, Sims, Galatzan & Harris, William T. Kirk, Brandon C. Janes, III, El Paso, Mark White, Atty. Gen. of Texas, John W. Fainter, Jr., First Asst. Atty. Gen., Ted L. Hartley, Executive Asst. Atty. Gen., Douglas B. Owen, Amie Rod-nick, Asst. Attys. Gen., Austin, for appellants.
    Gade & Schwarzbach, P. C., Thor G. Gade, El Paso, Carter & Ellis, Joel William Ellis, Harlingen, for appellees.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is a will construction case involving questions as to the rules of construction of an unambiguous will and the authority of the Court of Civil Appeals to reverse the trial Court’s judgment construing the will when there is no statement of facts before the appellate court. Trial was to the Court without a jury, and we affirm the judgment of the trial Court.

This suit was brought by the Shriners Hospital for Crippled Children, Shriners Hospitals for Crippled Children of Texas, and the El Maida Shrine Temple, A.A.O.N. M.S., seeking construction of language in the codicil of a last will and testament of Cesle C. Dues and the last will and testament of Mamie F. Dues providing for a charitable trust to be administered by El Paso National Bank as Trustee. The Texas Elks State Association and the Texas Elks Crippled Children’s Hospital, Inc. intervened on the side of the Plaintiffs, and Attorney General John L. Hill intervened on the side of El Paso National Bank.

After making certain specific bequests in his will, Cesle C. Dues, by a codicil, provided the remainder of the estate should go to a trust named the Cecil C. Dues and Mamie P. Dues Charitable Foundation, to be administered by the El Paso National Bank as Trustee. The will of Mamie F. Dues had a similar provision. Both wills were admitted to probate, and the Foundation was placed in operation by the Bank. The Shriners disagreed with the Bank’s construction of the wills and initiated this suit.

In the trial before the Court without a jury, evidence was presented in the form of exhibits and oral testimony. The trial Court rendered judgment favorable to the Shriners and Elks, and the Bank and the Attorney General appealed. The appeal is prosecuted solely on the transcript of the record without a statement of facts. We are of the opinion that without a statement of facts this Court must affirm the trial Court.

All parties agreed, and the Court found, that the instruments were not ambiguous. Appellants requested findings of fact and in response thereto the trial Court found: “At the conclusion of trial, all parties agreed there was no fact issue to be decided by the Court. Accordingly, no findings of fact were necessary.” There is no dispute of the fact that testimony was presented and the exhibits introduced during the trial and, in fact, the Court’s judgment recites “and the Court, . . having heard the evidence and testimony presented during the trial, has made the following findings and enters the following final judgment . . ” If it was proper for the Court to consider the exhibits and other extrinsic evidence in construing the unambiguous instrument, then this Court is in no position to find error in that construction.

The latest expression by the Supreme Court of this State on the use of extrinsic evidence to construe an unambiguous will is found in the case of Stewart v. Selder, 473 S.W.2d 3 (Tex.1971). The Court there said:

A will is a unilateral instrument, and the court is concerned only with the intention of the testator as expressed in the document. The sense in which the words were used by the testator is the ultimate criterion, and the court may always receive and consider evidence concerning the situation of the testator, the circumstances existing when the will was executed, and other material facts that will enable the court to place itself in the testator’s position at the time. See Peet v. Commerce & E. S. R. Co., 70 Tex. 522, 8 S.W. 203; Hunt v. White, 24 Tex. 643; Jackson v. Templin, Tex.Com.App., 66 S.W.2d 666; Darragh v. Barmore, Tex.Com.App., 242 S.W. 714; Page on Wills, 1941 ed., p. 621, Section 1617.

Under that rule, the Court in the case before us could consider extrinsic evidence to construe the unambiguous wills. Appellees urge the rule that the judgment of a trial court will not be set aside if there is any evidence of a probative nature to support it, and a court of civil appeals cannot substitute its findings of fact for those of the trial court if there is any evidence in the record to sustain the trial court’s findings, citing Ray v. Farmers’ State Bank of Hart, 576 S.W.2d 607 (Tex.1979). That rule is of no benefit to Appellees as we have no way of knowing whether there is “probative evidence” contained in the missing statement of facts.

The rule applicable to the case before us, and the one that is dispositive of it, is that in the absence of a statement of facts it must be presumed on appeal that sufficient evidence was introduced to support the findings and judgment of the trial court. Ehrhardt v. Ehrhardt, 368 S.W.2d 37 (Tex.Civ.App. — Waco, writ ref’d); Englander Co. v. Kennedy, 428 S.W.2d 806 (Tex.1968); Giddings v. Harold V. Simpson and Company, 532 S.W.2d 719 (Tex.Civ.App.— Waco 1976, no writ). True, in response to requests for findings of fact, the trial Court replied that all parties agreed there was no fact issue to be decided by the Court. However, the fact remains that there was evidence before the trial Court which, under the law, it could consider in construing the wills. That evidence is not before us; therefore, we are unable to say that the trial Court erred in its construction of the wills.

The judgment of the trial Court is affirmed.


author: MASSEY, Chief Justice.

text:
    Billy Ray NORRIS, d/b/a M & B Custom Counter Tops, Appellant, v. Thelma Lee WILLIAMS, Individually and as Independent Executrix of Estate of Paul Merrell Williams, Appellee.
    No. 18131.
    Court of Civil Appeals of Texas, Fort Worth.
    Sept. 27, 1979.
    Rehearing Denied Oct. 25, 1979.
    Law Offices of Jack Beech, and Ernest May, Fort Worth, for appellant.
    Johnson, Johnson & Rothfelder, and Joe J. Johnson, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

Paul Williams had been full partner with Billy Ray Norris prior to his death. They had done business as M & B Custom Counter Tops, hereinafter referred to as M & B. Upon the death of Williams his widow, Thelma Lee Williams, individually succeeded to her own interest in the partnership property, and as Independent Executrix and sole heir to her husband’s estate, likewise succeeded to her husband’s interest.

Prior to the institution of the Williams’ suit against Norris there had been a contractual disposition of all interest in and to the property of the partnership formerly possessed by Williams and his wife and it was thereby transferred to Norris. This was by a written instrument of contract on February 4, 1975, to be later discussed.

Approximately four months prior to the February 4, 1975 contract, Williams had advanced $6,500.00 to M & B, which then executed a note payable to Williams on demand for $6,500.00. The makers of the note were M & B, Norris, and Williams. No mention of this note was made in the contract between Mrs. Williams and Norris on February 4, 1975. Indeed, it was approximately two years later that Mrs. Williams, after demand for payment, brought suit to recover on the contract.

Following trial before the court, without a jury, judgment was rendered for the full amount of $6,500.00 plus interest and attorney’s fees. Norris appealed.

We affirm.

The material portion of the contract of February 4, 1975, provided:

“Seller (Mrs. Williams) agrees to sell her one-half interest ... of the business heretofore known as M & B Counter Top Company . .. This sale shall include all business assets and liabilities of the seller in connection with said business. This sale shall include all supplies, equipment, tools, trade fixtures, licenses as required by the State, permits, accounts receivable and payable, and the good will of said business.
“Purchaser (Norris) hereby agrees to assume and take over all indebtedness of said business and further agrees to indemnify and hold harmless the Seller from the claims of all creditors of said business.” (Emphasis supplied.)

By points, Norris contends (1) error in ruling the note was comprehended by his contract to assume liabilities of the partnership; (2) error in holding defenses of payment and fraudulent concealment were not available because not pleaded; (3) error in holding suit could be maintained; (4) error in excluding, under provisions of the “dead man’s” statute, testimony proffered by Norris that Williams had accepted the note to be paid out of only the partnership proceeds; and (5) error by rendering judgment for more than half the sum of the note.

There are no complications which might have been present had there been written articles of partnership, for there were none. We think it not disputed that had there been a third-person holder of the note, to whom the note had been negotiated, the liability of each individual maker would be clear. Had the holder brought suit on the note against both Norris and Williams, the obligation of each individual to pay would have been either joint or several, with the ultimate liability of each partner being exactly 50% of the total obligation because of contribution rights now recognized by statute Tex.Rev.Civ.Stat.Ann. art. 6132b (1970) “Texas Uniform Partnership Act”, § 34, “Right of Partner to Contribution from Co-Partners after Dissolution.” Furthermore, we think that if Mrs. Williams had only the right to sue Norris on the note, uncomplicated by the contract of February 4, 1975, her right of recovery against Norris could properly be only 50% of the total note obligation.

However, for her cause of action Mrs. Williams declared upon the provisions of the contract of February 4, 1975, to which the provisions of the note are merely ancillary. By the provisions of that contract all the indebtedness of M & B became the obligation of Norris. Furthermore, Norris assumed the responsibility of Mrs. Williams’ deceased husband for any indebtedness which might have been his earlier obligation as a partner, including the responsibility which might otherwise have been or become that of Mrs. Williams in her representative capacity as independent executrix.

The trial court filed findings of fact and conclusions of law, and they were supplemented further by requested findings. Questions relative thereto could only be such as would relate to the evidence and its sufficiency. As we view the same, of the findings made the only ones necessary to be noticed were (a) that no payment had been made to reduce the amount of the note obligation, and (b) that the note remained unpaid despite timely demand for payment of the whole obligation by reason of the parties’ contract.

In the Norris pleading there was no plea of payment or entitlement to credit upon the amount of obligation of the note. Save for his general denial, Norris’ answer presented the contention that the contract of February 4, 1975 encompassed as consideration the extinguishment of his liability on the note (a claim not made on appeal), and that there was no personal obligation on his part save from available surplus of the partnership funds (a claim made on appeal). On the latter the court excluded proffered proof when Williams objected on grounds that to admit it would violate the provisions of the “dead man’s” statute, Tex. Rev.Civ.Stat.Ann. art. 3716 (1926), “(Evidence) — In actions by or against executors, etc.”

Norris contends that the issue of payment or credit entitlement existed because it was tried by implied consent. Of course, in a case such as that under scrutiny, it is the obligation of a defendant to prove payment if he would contest the allegation that he is indebted as alleged. That burden never shifts. 44 Tex.Jur.2d 725, “Payment”, § 64, “Burden of proof"; Tex. R.Civ.P. 95, “Pleas of Payment”. Not only did the trial court express its opinion that Norris was not entitled to rely on the affirmative defense of “payment” because it was not pleaded, it went further and made the factual finding that, if it was in error upon that opinion and that “payment” as a defense did become an issue because it had been tried without objection, it refused to find payment. Judged either by a test of pleading as a legal issue or by the evidence submitted, since the court refused to find on the issue of “payment” as Norris desired he must lose.

Norris could not have suffered harm. No reversible error was presented. Tex.R. Civ.P. 434, Texas’ “Harmless Error Rule”. The issue of payment was raised by the evidence, though not relied upon as a defense by Norris. If he was entitled to any finding, he got one which was against him. Even if the finding be considered material, by appropriate test of the record the finding was not contrary to the greater weight and preponderance of the evidence. There is no merit in Norris’ contentions regarding payment.

We see no merit in Norris’ contention relative to there having been fraudulent concealment by Mrs. Williams of her intent, on and after the time of executing the contract of February 4, 1975, to claim a right to be paid any note amount, let alone the full face amount it provided. There was nothing overt on the part of Mrs. Williams nor anyone acting for her to cause Norris to believe, if he did, that no demand would ever be made upon him to pay the note. Completely absent is any evidence that he was induced to make the contract because of a belief that no such demand would ever be made. Norris knew of the note he had executed some four months earlier, and he is to be presumed, in the absence of evidence to the contrary, to have been aware of his legal obligation created thereby. Further, absent any evidence of an expression to Mrs. Williams of unawareness on his part revealed at a time antecedent to February 4, 1975, and there was none, Norris could not show any breach of duty she owed to him which would affect his contract obligation.

The issues, narrowed by our discussion to this point, are (a) whether the contract of February 4, 1975, bound Norris under the rules of contract to pay the whole rather than merely one-half the obligation of the note, and (b) whether, because the note was never negotiated, Mrs. Williams could sue on the contract to pay its full face amount. The last stated premise is predicated upon Norris’ belief that, without the existence of obligation to pay upon the note, there could be no binding obligation to pay on the contract.

Norris’ counsel has found a most interesting case which would support his contention that the note, had it been the only item upon which suit was declared, was not an obligation upon which Williams could have effected any recovery had he been alive, or upon which Mrs. Williams, either in her individual or representative capacity as Williams’ successor, could effect a recovery. The case is Moore v. Denslow and Another, 14 Conn. 235 (Conn. Supreme Court of Errors) (1841). We reject the case as authority. If it ever could have been the proper law to be applied in Texas, it could not have application to the instant case, even if it should be more narrowly considered as one upon the note rather than upon the later contract. This is so because of the provision of § 34 of Texas Uniform Partnership Act, supra. By the provisions thereof, as heretofore noticed, the maximum possible recovery would be only 50% of the total of the obligation of the note. This controls disposition of the Norris contention that there could not have been recovery of any amount on the note. It is overruled.

We proceed to the question, necessarily referable to the note and the obligations upon the note, of the Norris obligation arising out of his contract of February 4, 1975, for the whole amount of the obligation ($6,500.00 plus interest and attorney’s fees). Mrs. Williams contends that by reason of the contract Norris became obligated to pay to her the entire indebtedness evidenced by note, rather than merely 50% thereof, as would have been the case had suit been upon the note.

There was consideration for the contract of February 4, 1975, and there is no contention of inadequacy or failure of consideration. The note, evidencing the principal amount of $6,500.00 as an indebtedness of the business of M & B, obligated the partnership. By the parties’ contract, that partnership obligation was assumed by Norris as an individual. The partnership, had it continued in existence, and for purposes of the contract the parties treated it as a partnership business thus continued, would have owed the whole obligation. In other words, for purposes of the parties’ contract the partnership, including its business and property, was treated as an entity though it had ceased as such for general purposes of the law. Because of this the parties are to be considered bound as the instrument of contract reflected their intent. That which had been the partnership note obligation was encompassed by the provisions of the contract relative to “all indebtedness of said business”. The entire obligation of the note became that of Norris, as an individual, by the contract of February 4, 1975.

There is no reversible error presented on the appeal.

Judgment is affirmed.