author: TOM G. DAVIS, Judge.

text:
    Daniel R. PETERS, Appellant, v. The STATE of Texas, Appellee.
    No. 57351.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Jan. 10, 1979.
    Jim Hamilton, Houston, for appellant.
    James P. Hury, Jr., Dist. Atty., and Michael P. Heiskell, Asst. Dist. Atty., Galveston, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

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

At the outset, appellant contends that the court erred in failing to strike for cause a prospective juror who “stated he felt he could not be fair.”

The record reflects that during the voir dire examination of prospective juror Donald W. Rogers, the prosecutor asked, “Do you know of any reason why you couldn’t be a fair and impartial juror in this case?” and Rogers responded, “I sure do.” The prospective juror and counsel approached the bench, where the following transpired “outside the hearing of the jury panel”:

“MR. ROGERS: In ’62, in Chicago, my sister, who was pregnant, was killed by an arson. And, I don’t know how, but they never caught the guy, but they found proof that the fire was deliberately set. They found gas in the basement—
“THE COURT: I take it, from that experience — could you take that from your mind before you could offer this defendant (inaudible).
“MR. ROGERS: One child, and my sister was pregnant — I don’t know how I would feel about it.
“THE COURT: Well, I am sure you have very strong feelings about this particular offense, but what I am asking you is whether you can be a fair and impartial juror to this defendant in this case?
“MR. ROGERS: Well, I imagine I could. I just wanted to let you know what I had experienced.
“THE COURT: Yes, sir.
“MR. HEISKELL [prosecutor]: Mr. Rogers, if I told you that there was no injuries to any persons in this particular case — as I mentioned, our burden of proof is that he intentionally started this fire in this building, and there were no injuries or deaths, and, for that reason, would it be difficult for you — of course, your sister’s situation, if you feel that you could deliberate in this case—
“MR. ROGERS: Yes, I just wanted you to know what the situation was. I think I could be a fair and impartial juror in regard to this defendant.”

The testimony of Rogers on voir dire, when taken as a whole, does not reflect that he was disqualified from serving on the jury. Freeman v. State, Tex.Cr.App., 556 S.W.2d 287; Adami v. State, Tex.Cr.App., 524 S.W.2d 693.

Further, the record does not reflect that the appellant requested an additional challenge after he exhausted all of his peremptory challenges, or that the court would not have given an additional challenge if such request had been made. There is no showing that appellant was forced to take an objectionable juror. No error is shown. See Adami v. State, supra; Williams v. State, Tex.Cr.App., 481 S.W.2d 119.

Appellant contends that the court erred in putting him to trial “on the sanity issue without allowing ten (10) days for preparation.”

The record reflects that counsel was appointed to represent appellant, an indigent, on March 3, 1977.

On March 7, 1977, a hearing began on the competency of appellant to stand trial and on the following day the jury found that appellant was competent to stand trial.

. On March 17, 1977, trial began on the merits and concluded at 6:35 p. m. March 18, 1977.

Article 26.04(b), V.A.C.C.P., provides:

“The appointed counsel is entitled to ten days to prepare for trial, but may waive the time by written notice, signed by the counsel and the accused.”

In the instant case, no written waiver of the ten days to prepare for trial was executed by appellant and his counsel. Absent such a waiver, this Court has held that the failure to allow appointed counsel ten days to prepare for trial requires reversal on direct appeal without the necessity of showing harm or prejudice. Griffin v. State, Tex.Cr.App., 489 S.W.2d 290; Pollinzi v. State, Tex.Cr.App., 541 S.W.2d 445; Hous ton v. State, Tex.Cr.App., 490 S.W.2d 851; Hayles v. State, Tex.Cr.App., 507 S.W.2d 213; McBride v. State, Tex.Cr.App., 519 S.W.2d 433.

The question here presented is whether a hearing on the issue of competency to stand trial held less than ten days after the appointment of counsel comes within the mandatory requirement of Art. 26.04(b), supra.

Article 46.02, Sec. 2(a), V.A.C.C.P., provides:

“The issue of the defendant’s incompetency to stand trial shall be determined in advance of the trial on the merits if the court determines there is evidence to support a finding of incompetency to stand trial on its own motion or on written motion by the defendant or his counsel filed prior to the date set for trial on the merits asserting that the defendant is incompetent to stand trial.”

The judgment finding appellant competent to stand trial recites that a motion to try the issue of incompetency “was presented on behalf of the accused,” a jury was selected, and the jury returned a verdict finding appellant competent to stand trial on March 8, 1977.

This Court has stated that the purpose of Art. 26.04, supra, is to protect an accused’s right to have adequate time to prepare for trial. Moore v. State, Tex.Cr.App., 493 S.W.2d 844.

Article 46.02, Sec. 2(a), provides for a hearing in advance of trial to determine the sole issue of whether an accused is competent to stand trial. Said hearing is not a “trial” as that term is used in Art. 26.04(b), supra. We hold that a hearing on the question of an accused’s competency to stand trial held within ten days after appointment of counsel does not require reversal under Art. 26.04(b), supra.

Lastly, appellant contends that the court erred in assessing life punishment “because there was no proof that the date of the 1969 offense was subsequent to the 1963 conviction.”

The enhancement paragraphs of the indictment allege a conviction for breaking and entering a motor vehicle on the 14th day of May, 1969, in the 177th District Court of Harris County in Cause No. 136900, and a conviction for burglary on the 8th day of May, 1963, in the 174th Criminal District Court of Harris County in Cause No. 104900.

V.T.C.A. Penal Code, Sec. 12.42(d), provides: .

“If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life.” [Emphasis added.]

This provision of our present code, like former Penal Code Art. 63, V.A.P.C., requires that the State prove that the accused’s second previous felony conviction is for an offense committed after the first previous conviction became final.

Penitentiary papers were offered in evidence reflecting the convictions alleged and containing fingerprints identified as being the same as the known prints of appellant.

We find that appellant’s testimony, coupled with the foregoing exhibits which are consistent with his testimony, is sufficient to prove that he committed the second prior offense after the conviction for the first prior offense had become final. The appellant testified as follows:

“Q. Danny, do you remember, on May 8, 1963, when you were convicted of burglary in the 174th District Court, of Harris County, Texas?
“A. Yes, sir.
“Q. And, how many years did you go to the penitentiary for that?
“A. Two years, sir.
“Q. And, after you got out, you then were convicted in 1969, of unlawfully breaking and entering a motor vehicle, is that correct?
“A. Yes, sir.
“Q. And, how many years did you serve for that?
A. They gave me a three year sentence.
“Q. Now, you also recall, Danny, that, back in 196B, the two additional charges of burglary and another theft that you were convicted of at the same time that you were convicted on the other charges?
“A. Yes, sir. That happened the same night.
“Q. How many stores did you say you all burglarized?
“A. Broke into two stores, and we had a stolen car. I wasn’t but 17 years old.
“Q. Now, you recall what happened back then, when you were convicted of that, don’t you?
“A. It’s kind of faded in my mind, but I remember most of it.
“Q. You also recall what happened in 1969 — well, let me ask you. When did that take place in 1969, when you were in that car?
“A. It was in ’68 — it was the first part of ’69, the first part of ’69,1 believe, or ’68. I am not sure.
“Q. Okay.—
“A. If I said a certain day, I would be being.
“Q. All right. And, you recall what happened back then, too—
“A. Yes, sir, I had a jury trial.”

No error is shown.

The judgment is affirmed.


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    Roger McGEE, Appellant, v. The STATE of Texas, Appellee.
    No. 55436.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Jan. 17, 1979.
    Elaine Brady, on appeal only, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Jack C. Freís, Asst. Dist. Attys., Houston, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery in which punishment was assessed at 15 years.

At the outset we note fundamental error that must be considered in the interest of justice. Art. 40.09(13), V.A.C.C.P. Although the indictment alleged robbery by intentionally and knowingly threatening and placing the complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a pistol, in its charge to the jury applying the law to the facts, the court instructed the jury under all theories of culpability under V.T.C.A., Penal Code Secs. 29.02 and 29.03. It is now well established that such an enlargement in the charge upon the allegations in the indictment constitutes fundamental error. E. g., Robinson v. State, Tex.Cr.App., 553 S.W.2d 371; Davis v. State, Tex.Cr.App., 557 S.W.2d 303; Jones v. State, Tex.Cr.App., 566 S.W.2d 939.

The judgment is reversed and the cause remanded.


author: ONION, Presiding Judge.

text:
    Robert Dean McCLURE, Appellant, v. The STATE of Texas, Appellee.
    No. 57105.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Jan. 17, 1979.

      Clifford J. Hardwick, Odessa, for appellant.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for the offense of murder; punishment is imprisonment for ninety-nine (99) years.

Appellant previously was convicted of this offense, but the judgment was reversed because of improper argument by the prosecutor. McClure v. State, 544 S.W.2d 390 (Tex.Cr.App.1976).

Appellant has presented five grounds of error in which he contends that (1) the court erroneously excluded, at the guilt-innocence phase of the trial, evidence that the deceased (appellant’s wife) had been unfaithful to him and (2) the court erroneously excluded, at both the guilt-innocence and punishment phases, the testimony of a court-appointed psychiatrist who had examined appellant after the offense. We agree with both of appellant’s contentions and again reverse the judgment.

Our opinion in the prior appeal of this cause states that appellant’s testimony, “together with the evidence of other defense witnesses including a psychiatrist, was sufficient to raise the issue of voluntary manslaughter.” This statement is not entirely accurate with regard to what transpired at the former trial. We have examined the record in the prior appeal, and it appears that neither the psychiatrist nor three witnesses who testified that they had had sexual intercourse with the deceased while she was married to appellant were allowed to testify before the jury in the former proceeding. Their testimony outside the presence of the jury was included in the record in the prior appeal. It was stipulated in the record in the instant appeal that, had they been allowed to testify, their testimony would have been the same as at the former trial, and that testimony is in the record now before us.

Appellant’s testimony raised the issue of voluntary manslaughter, and the court instructed the jury thereon. See V.T.C.A., Penal Code, § 19.04. In support of the defensive theory that he was guilty of only this lesser included offense, appellant offered the testimony of Keith Crowder, Harvey Gordon and Ronnie Davis. Each of these witnesses testified outside of the presence of the jury that he had had sexual intercourse with the deceased while she was married to appellant. Crowder also testified to seeing appellant in a restaurant while Crowder and the deceased were eating breakfast together, and that appellant appeared “real nervous, shaky, upset.” Appellant also offered the testimony of Larry Subia. Subia was allowed to testify outside the presence of the jury that the deceased, clad in a bath robe, had answered the door of Davis’ apartment at approximately 2 a. m. at a time when she was married to appellant. Appellant also offered to testify — and was allowed to do so only outside the presence of the jury — that one Cindy Haynes had told him that the deceased had had sexual relations with Crowder and Davis. Appellant testified before the jury that he had seen the deceased leave on a “date” with Gordon, and that she had not returned home until 10 a. m. the next day.

Appellant also offered, at both the guilt-innocence and punishment phases of the trial, the testimony of Dr. James Huddle-ston, a psychiatrist who was appointed by the court to examine appellant. Huddle-ston’s testimony may be summarized as follows:

Appellant was not insane, but suffered from chronic depression. Although there was no indication that appellant experienced hallucinations or delusions, he had, prior to the commission of the offense, experienced “disassociated phenomena.” Dr. Huddleston defined disassociated phenomena as “an episode during which an individual feels that either he is not in fact with his surroundings or that he is in some way not quite real in the world.” Appellant’s insight was limited and he tended toward impulsiveness, but his judgment did not seem to be impaired. Appellant seemed to have “a strong feeling of rejection . in the light of the difficulties which he had with his first marriage and the similar types of difficulties occurring apparently within his second marriage.” When appellant’s wife said good-bye to him and turned to leave [which appellant testified she did immediately before he shot her], her actions could be characterized as a culmination of the rejection appellant had been experiencing for the past three or four years.

Y.T.C.A., Penal Code, § 19.06, provides as follows:

“In all prosecutions for murder or voluntary manslaughter, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.”

V.T.C.A., Penal Code, § 19.06, provides, as did Article 1257a, V.A.P.C., that the jury be allowed to consider all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the homicide. It long has been the rule in this state that evidence such as that offered by appellant to prove his wife’s infidelity is admissible as bearing on the accused’s state of mind.

“We think the court erred in rejecting the evidence offered by defendant to prove the adulterous intercourse between his wife and the man Stephenson, and that recently before the homicide he had been informed of this fact. This and any other evidence which tended to show that he had reasonable cause to be excited, troubled, distracted and frenzied, that he had knowledge’of facts well calculated to destroy his mental equilibrium, to dethrone his reason, to render it improbable that he could and did act with a cool, sedate and deliberate mind in committing the homicide, was in our opinion admissible.”

Burkhard v. State, 18 Tex.App. 599 (1885).

In order for the evidence of the deceased’s infidelity to be admissible, appellant was required to show that he had knowledge thereof. See Jamar v. State, 142 Tex.Cr.R. 91, 150 S.W.2d 1031 (1941); Newchurch v. State, 135 Tex.Cr.R. 619, 121 S.W.2d 998 (1938); Black v. State, 82 Tex.Cr.R. 358, 198 S.W. 959 (1917); Ashley v. State, 362 S.W.2d 847 (Tex.Cr.App.1962).

To prove that he had knowledge of the deceased having had sexual relations with Crowder and Davis, appellant offered to testify that Cindy Haynes had so informed him. The court erred in refusing to allow appellant to testify as to what Haynes had told him on the ground that such testimony would have been hearsay.

“When it is proved that D made a statement to X, with the purpose of showing the probable state of mind thereby induced in X, such as being put on notice or having knowledge, or motive, or to show the information which X had as bearing on the reasonableness or good faith of the subsequent conduct of X, or anxiety, the evidence is not subject to attack as hearsay.”

McCormick, Evidence, § 249, pp. 589-90 (2nd ed. 1972).

“Whenever an utterance is offered to evidence the state of mind which ensued in another person in consequence of the utterance, it is obvious that no assertive or testimonial use is to be made of it, and the utterance is therefore admissible, so far as the hearsay rule is concerned.”

6 Wigmore, Evidence, § 1789, p. 314 (Chad-bourn rev. 1976). The court should have allowed appellant to testify as to what Cindy Haynes had told him, since that testimony would have shown he had knowledge of the deceased’s indiscretions with Crowder and Davis. See Thompson v. State, 115 Tex.Cr.R. 337, 29 S.W.2d 343 (1929).

Appellant testified that he saw the deceased go on a date with Gordon and stay out until 10 a. m. the next day, and it may be inferred that he also had knowledge of her indiscretions with Gordon. Since appellant would have shown — had he been allowed to testify as to what Haynes had told him — his knowledge of the deceased’s actions with Crowder, Davis and Gordon, the court should have allowed those three witnesses to testify. Appellant did not show that he knew Subia had seen the deceased dressed in a bath robe at Davis’ apartment, so the court properly refused to allow Subia to testify.

The error in excluding the testimony of these three witnesses was compounded by the refusal to allow Dr. Huddleston to testify before the jury. His testimony certainly was admissible under V.T.C.A., Penal Code, § 19.06, as going to show appellant’s state of mind at the time of the offense. Both Huddleston’s testimony and that of the three lay witnesses were relevant to appellant’s defensive theory that he was guilty'of only voluntary manslaughter, and not murder.

The judgment is reversed and the cause remanded.

      . V.T.C.A., Penal Code, § 19.06, replaced Article 1257a, V.A.P.C., which provided as follows:
      “In all prosecutions for felonious homicide the State or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the homicide, which may be considered by the jury in determining the punishment to be assessed. Provided, however, that in all convictions under this Act and where the punishment assessed by the jury does not exceed five years, the defendant shall have the benefits of the suspended sentence act.”


author: DOUGLAS, Judge.

text:
    Jesse Carl JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 57198.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Jan. 17, 1979.

      Lane P. Arthur, Lubbock, court appointed, for appellant.
    Alton R. Griffin, Dist. Atty., and William Everett Seymore, Asst. Dist. Atty., Lubbock, for the State.
    Before DOUGLAS and TOM G. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

Jesse Carl Jackson appeals from his conviction for possession of a short-barrel firearm denounced by V.T.C.A., Penal Code, Section 46.06(a)(4). The jury assessed his punishment at five years.

Jackson contends that the court erred in allowing the State to introduce evidence which connected him with a planned robbery. He also argues that the evidence was insufficient to show either his possession of the weapon or that the weapon constituted a “short-barrel firearm.”

Lloyd Brown, a Lubbock police officer, testified that he was working a stake-out at a 7 — 11 store on December 7, 1976. Around 11:00 p. m. he observed a green Pontiac with two people inside pass slowly by the store several times. The car eventually stopped near the store and the passenger exited. As he approached the store Brown observed a stocking on his head and an object about two and one-half feet long in his hands. The object appeared to be a weapon. The man stood outside the store and carefully peered in for several minutes. There were two customers in addition to the attendant in the store at the time. The man then returned to the car and left. Brown called for assistance and followed in his unmarked car for several miles. During this time he momentarily lost sight of the Pontiac as it turned corners in front of him. After other police cars joined Brown, one of them turned his lights and siren on and attempted to stop the Pontiac. The Pontiac jumped a curb. A chase of ten blocks ensued before police stopped the Pontiac. Brown identified Jackson as the passenger of the car.

Gary Satterfield, another Lubbock police officer, testified that he went to assist Brown. Satterfield turned his lights and siren on and attempted to stop the Pontiac. As the Pontiac sped off, he gave chase. In the 400 block of Avenue G a long object, about twenty inches in length, was thrown from the Pontiac. In the 700 block of Fifth Street, cloth material was thrown from the car. Satterfield apprehended Jackson and the car’s driver and radioed other officers about the items he saw thrown from the car.

Billy Brazell, a sergeant on the Lubbock police force, testified that he received Sat-terfield’s information and went to the 400 block of Avenue G where he found a sawed-off shotgun. He identified the stocking and it was introduced into evidence.

Jackson contends the evidence fails to show that he possessed the shotgun. In a circumstantial evidence case such as this, the evidence must exclude every reasonable hypothesis except the guilt of the appellant. Easley v. State, 564 S.W.2d 742 (Tex.Cr.App.1978); Suff v. State, 531 S.W.2d 814 (Tex.Cr.App.1976).

Appellant relies upon Jones v. State, 371 S.W.2d 883 (Tex.Cr.App.1963), where we considered a similar claim dealing with the sufficiency of the evidence. Jones was convicted of possession of a pistol. He was driving a car with five passengers. After being stopped, everyone exited the vehicle. The pistol was found outside the car on the passenger’s side. This Court held that because of the other passengers and the State’s failure to show that the pistol was in Jones’ custody or sight the evidence was insufficient.

In the case at bar the passenger of the Pontiac, who was later identified as Jackson, was observed carrying a long object, with a stocking over his head, peering into a 7-11 store. The object appeared to be a weapon. Once Jackson’s car was asked to stop a chase ensued which ended only after a shotgun was thrown from the car. Unlike in Jones, appellant was seen with a long object which, given all the facts, could only reasonably be the shotgun which was thrown from the car. The evidence was sufficient to show appellant’s possession of the shotgun.

Jackson also argues that the State failed to prove that the shotgun was not an antique or curio firearm that was manufactured prior to 1899. Appellant was charged with possession of a short-barrel firearm. V.T.C.A., Penal Code, Section 46.06(a)(4). It is an affirmative defense to this charge that the short-barrel firearm was used “solely as an antique or curio.” V.T.C.A., Penal Code, Section 46.06(d). But, as the appellant correctly points out, even though he did not rely upon the affirmative defense, the State must still prove its case. That case includes proving that the weapon in question was a firearm. The definition of “firearm” in V.T.C.A., Penal Code, Section 46.01(3), is as follows:

“ ‘Firearm’ means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include antique or curio firearms that were manufactured prior to 1899 and that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter.”

It provides that “. . . antique or curio firearms that were manufactured prior to 1899” are not included in the definition. V.T.C.A., Penal Code, Section 46.06, was amended by Acts 1975, 64th Legislature, page 918, chapter 342, Section 15, and it retained the provision that the possession of a short-barrel firearm solely as an antique or curio is an affirmative defense.

V.T.C.A., Penal Code, Section 2.04, provides:

“(a) An affirmative defense in this code is so labeled by the phrase: ‘It is an affirmative defense to prosecution. . . .'
“(b) The prosecuting attorney is not required to negate the existence of an affirmative defense in the accusation charging commission of the offense.
“(c) The issue of the existence of an affirmative defense is not submitted to the jury unless evidence is admitted supporting the defense.
“(d) If the issue of the existence of an affirmative defense is submitted to the jury, the court shall charge that the defendant must prove the affirmative defense by a preponderance of evidence.”

The possession of a weapon as an antique or curio was not made an exception requiring the State to negate it. V.T.C.A., Penal Code, Section 2.03, provides:

“(a) A defense to prosecution for an offense in this code is so labeled by the phrase: ‘It is a defense to prosecution. . . ’
“(b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.
“(c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.
“(d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.
“(e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.”

The prosecuting attorney was not required to prove that the weapon was not an antique or curio.

Complaint is next made that the evidence concerning Jackson’s activities at the 7-11 store and use of the nylon stocking was highly prejudicial and this prejudicial effect outweighed the evidence’s probative value. Jackson contends that under Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972), this evidence, showing an extraneous offense, should have been excluded.

The facts and circumstances surrounding the commission of an offense are admissible to prove the guilt of the accused. Williams v. State, 535 S.W.2d 637 (Tex.Cr.App.1976); Dunlap v. State, 462 S.W.2d 591 (Tex.Cr.App.1971). A key portion of the State’s proof that appellant possessed the weapon was provided by Brown’s observation of appellant carrying a long object that appeared to be a weapon. Questions concerning the admission of evidence lie within the discretion of the trial court. Williams v. State, supra; Lanham v. State, 474 S.W.2d 197 (Tex.Cr.App.1971). The court did not abuse that discretion in admitting this evidence.

There is no reversible error. The judgment is affirmed.


text:
    Ex parte Ira JACKSON aka Darrell Williams.
    No. 60349.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Jan. 17, 1979.
    Howard G. Wilson, Mesquite, for appellant.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

DOUGLAS, Judge.

This is an appeal from an order of the trial court, entered in a habeas corpus proceeding, remanding appellant to custody for extradition to the State of Louisiana.

At the hearing in the trial court, the warrant of the Honorable Dolph Briscoe, Governor of Texas, was admitted into evidence without objection. This warrant appears regular on its face and made a prima facie case authorizing extradition. Appellant contends, however, that the prima facie case was rebutted by appellant’s testimony that he was not the same person named in the Governor’s warrant and that he was not in the State of Louisiana on the date of the commission of the alleged offense.

The supporting papers from the State of Louisiana allege that Ira Jackson a/k/a Darrell Williams, date of birth, “2-5-41,” did commit the offense of theft in East Baton Rouge Parish in that, on August 29, 1978, he stole a 1976 two-door maroon Buick with a 1978 Louisiana license number 132X521.

Appellant testified that his date of birth was not February 5, 1941, but, February 2, 1941. He further testified that he was not in Louisiana on August 29, 1978, and “no one knows me by that name [Darrell Williams] and that is not me.” However, Officer Cox of the Dallas Police Department testified that, on September 5, 1978, at approximately 7:53 p. m., he arrested appellant in Dallas while driving a “1976 maroon-colored Buick” which had Louisiana license plate number 132X521. He further testified that at the time of the arrest, appellant had no driver’s license or other form of identification, but identified himself to the officer as Darrell Williams. Moreover, appellant had admitted on direct examination that his name was Ira Jackson.

Since the trial judge was the trier of the facts and the credibility of the witnesses, he was warranted in disbelieving appellant’s testimony that he was not the same person named in the Governor’s warrant in view of the fact that appellant was found in possession of the allegedly stolen vehicle within eleven days after the alleged theft. The case of Ex parte Larson, 494 S.W.2d 179 (Tex.Cr.App.1973), which is cited by appellant, is distinguishable, because there Larson’s testimony that he was not the person named in the Governor’s warrant was not rebutted in any way. Here, however, appellant’s recent possession of the allegedly stolen automobile was sufficient to overcome appellant’s testimony. Whether appellant is actually guilty of the offense of theft as charged in the Louisiana supporting papers or whether appellant had a reasonable explanation for his possession of the automobile are questions for the courts' of Louisiana to decide. Moreover, appellant’s testimony, standing alone, that he was not in the demanding state on the date of the alleged offense is insufficient to overcome the prima facie case established by the admission into evidence of the Governor’s warrant. Ex parte Larson, supra, and cases there cited.

The judgment is affirmed.


author: AKIN, Justice.

text:
    Cecil W. MAYFIELD, David Hughes, Margaret H. O’Neal and John Robert Trimmier, Appellants, v. Dave HICKS and Dave Hicks Company, Inc., Appellees.
    No. 19540.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 24, 1978.
    Rehearing Denied Nov. 28, 1978.

      Philip C. McGahey, Bagby, McGahey, Ross & DeVore, Arlington, for appellants.
    Don R. Hanmer, Carrington, Coleman, Sloman, Johnson & Blumenthal, Dallas, for appellees.
   AKIN, Justice.

This is an appeal from an instructed verdict rendered against the guarantors of two equipment leases. Dave Hicks Company sued Four C Corporation, the primary obli-gor, for amounts due under the first equipment lease agreement and sued Mayfield, Hughes, O’Neal and Trimmier, the guarantors, on a guaranty of Four C Corporation’s obligations under this lease. Dave Hicks, individually, also sued Four C Corporation for the amounts due under a second equipment lease and sued the guarantors under the terms of a similar guaranty. Four C Corporation neither filed an answer nor participated at trial. The trial judge, acting on the provisions of an alleged liquidated damage clause in each lease, granted a default judgment in favor of Dave Hicks Company against Four C Corporation for $289,401.08, plus $15,000 in attorneys’ fees and also granted a default judgment in favor of Dave Hicks, individually, against Four C Corporation for $20,765.51 and attorneys’ fees of $2,500. Both plaintiffs were then granted an • instructed verdict against the guarantors.

Only the guarantors appeal from the trial court’s judgment asserting, among other grounds, certain defenses to the leases that go to the question of the liability of Four C Corporation on the leases. In response, ap-pellees argue that guarantor-appellants are collaterally estopped from asserting any defenses going to questions relating to the liability of the primary obligor, Four C, or to the extent of that liability, since the judgment against Four C is now final. Additionally, guarantor-appellants contend that the guaranties were ambiguous, that consideration for the guaranties had failed, that attorneys’ fees were not recoverable under the guaranties, that all offsets and credits had not been allowed them, and that the liquidated damage provision of the lease was a penalty. With respect to the defenses to the leases, we hold that these guarantors are not collaterally estopped and, thus they may assert all defenses available to the primary obligor. We also hold that the “liquidated damage” provision of the lease is a penalty rather than a provision for just compensation. Accordingly, we reverse and remand so that appellees may prove their actual damages.

Collateral Estoppel

Appellees argue that the trial court properly instructed a verdict for the appellees because the liability of the primary obligor on the leases had been finally determined by the default judgments and that the appellants, as guarantors, are collaterally estopped from asserting any defenses to the liability of the primary obli-gor, Four C Corporation, under the leases. In this respect, they contend that since the judgment is final as to Four C, the rule applies that a judgment against the principal obligor conclusively establishes the extent of the principal’s liability with respect to a guarantor, if that judgment is obtained in a suit of which the guarantor had full knowledge and an opportunity to defend, citing R. G. McClung Cotton Co. v. Cotton Concentration Co., 479 S.W.2d 733, 742 (Tex.Civ.App.-Dallas 1972, writ ref’d n.r.e.); Empire Steel Corp. v. Omni Steel Corp., 378 S.W.2d 905 (Tex.Civ.App.-Fort Worth 1964, writ ref’d n.r.e.); Latimer v. Texas & N. O. R. Co., 56 S.W.2d 933 (Tex.Civ.App.-Beaumont 1933, writ ref’d); Young v. Bank of Miami, 175 S.W. 1102 (Tex.Civ.App.-Amarillo 1915, writ ref’d). Although we agree with the principle asserted by appel-lees, it is not applicable to the facts in this case because the guarantors have not had an opportunity to defend which is a predicate to the application of collateral estoppel. 1 Freeman on Judgments § 447, at 978 (5th ed. 1925). Indeed, in the cases cited by appellees, those courts applied the rule where the primary obligor’s liability had been established in an action where the guarantor had an opportunity to defend but either did not so do or did so unsuccessfully as in Young v. Bank of Miami, supra, and subsequently attempted to attack that judgment in a later action by the obligee against the guarantor. It is only in this situation that courts have applied collateral estoppel. Here, the guarantors attempted to assert the defenses available to their principal in the trial court rather than consciously ignore the opportunity to present such defenses. There was no other opportunity to defend because there had been no prior action. Thus, the general rule that guarantors have the right to raise any defenses to the guaranteed obligation that the principal may have applies. Accordingly, we hold that where a guarantor has notice of the action against his principal and he takes part in the suit, he is not bound by the adjudication of the principal’s liability by a default judgment against his principal in the same action. This is true because the guarantor may have had no authority to answer in the principal’s behalf or to defend in the name of his principal. Indeed, before collateral estoppel applies, the opportunity to defend must be such that the guarantor can actually control the suit with respect to any defenses including those available to the primary obligor. U. S. Wire & Cable Corp. v. Ascher Corp., 34 N.J. 121, 167 A.2d 633, 637 (1961). Thus, where the guarantor is merely given notice that the primary obligor expects the guarantor “to assist” in the conduct of the defense, it is insufficient notice or control so as to preclude the guarantor from asserting the same defenses in a subsequent suit or in the same suit. 1 Freeman on Judgments § 449, at 984-85 (5th ed. 1925). Accordingly, we must now turn to all points of error asserted by appellants.

Liquidated Damages or Penalty

Appellants contend that the clauses in both leases which entitle the lessor to repossess the equipment and sue for unpaid rentals is an unenforceable penalty, and thus no basis for appellees’ actual damages. The lessors argue, however, that the provision is a valid stipulation of liquidated damages, for which the lessee became liable upon default. We agree with appellants that the provision is a penalty rather than a liquidated damage provision and that the question of actual damages should be submitted to the jury. The provision in each lease provides:

Upon the occurrence of an event of Default, and at any time thereafter, Lessor, in addition to any other rights and remedies he may have, shall have the right to take possession of the Equipment, whereupon Lessee’s right to use the same under and subject to the terms and provision of this Lease, and any other right or interest of Lessee to or in the Equipment shall absolutely cease, but such taking by Lessor shall not relieve Lessee of its obligations and liabilities hereunder . . . . If Lessor repossesses the Equipment, Lessor shall have the right, at his option, to lease the Equipment to any other party . or Lessor may sell the Equipment or salvage the valuable components thereof. In the event of any such leasing or sale, there shall be due from Lessee, and Lessee will immediately pay to Lessor, the difference between the amount of rentals to be received from any third person, or the purchase price at said sale, as the case may be, and the total unpaid rental and other amounts to be paid herein, plus all costs and expenses of Lessor in repossessing, transporting, repairing, releasing, selling or otherwise handling the equipment. [Emphasis added]

The vice in this provision that makes it a penalty rather than a liquidated damage provision is that upon the occurrence of even a minor default by the lessee, the lessor may then declare the lessee in default, take possession of the equipment, and, in addition, demand payment of all lease payments called for in the lease. The coupling of repossession with acceleration of rent, irrespective of the type of breach, is the defect in this provision. It is immaterial that the actual breach was for nonpayment of rentals. A provision is a penalty if it provides for unreasonable payments for a minor breach. For example, the leases here provide that an event of default occurs if the lessee does not punctually perform any of the obligations contained in the leases and the leases obligate the lessee to keep the equipment in good appearance. Conceivably, if the lessee did not punctually keep the equipment in good appearance, then the lessor could declare the lessee to be in default. Such a minor breach could then lead to draconian penalties disproportionate to any actual damage that the lessors may suffer. In Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484, 487 (1952), the supreme court condemned a similar provision as a penalty because the lease provided the same reparation for breach of each and every covenant in the lease, thus violating the principle of just compensation. Consequently, that court concluded that the provision in that case to be a penalty rather than a provision for liquidated damages. Since the clause in our case subjects the lessee to the same reparation for the breach of any covenant, we likewise hold that the provision is a penalty rather than one for liquidated damages. United States Leasing Corp. v. Smith, 555 S.W.2d 766, 770 (Tex.Civ.App.-Tyler 1977, writ ref’d n.r.e.); Annot., 104 A.L.R. 132 (1936); 5 Williston on Contracts § 779 (3rd ed. 1961).

Although appellees pleaded that the breach was for unpaid rentals, it does not save the provision from being a penalty because that question turns on whether the provision provides for reasonable compensation. Of course, it would be unreasonable to permit the lessor to repossess and to require the lessee or its guarantors to pay the entire rentals set forth in the lease for any insignificant, technical breach. Thus, the question of whether the provision is a penalty or a liquidated damage clause is determined by the reasonableness of the provision with respect to just compensation. Since we have held this provision to be a penalty, it will not support the damages in the judgment instructed by the trial court. On remand the question of actual damages is one of proof to be determined by the jury.

Nevertheless, appellees argue that the. instructed verdict was proper because appellants failed to request proper special issues inquiring whether the liquidated damage clause was a penalty. We cannot agree because any jury issues pertaining to whether a contractual clause is enforceable as a liquidated damage provision or void as a penalty are immaterial since this determi-' nation is a question of law for the trial court, rather than a jury question and must be viewed as of the time the contract was executed. Schepps v. American District Telegraph Co. of Texas, 286 S.W.2d 684, 690 (Tex.Civ.App.-Dallas 1955, no writ); Zucht v. Stewart Title Guaranty Co., 207 S.W.2d 414, 418 (Tex.Civ.App.-San Antonio 1947, writ dism’d ); Muller v. Light, 538 S.W.2d 487, 488 (Tex.Civ.App.-Austin 1976, writ ref’d n.r.e.). Thus, appellees’ contention lacks merit. Since we have held that the trial court erred in instructing a verdict, we turn now to other questions that may arise upon retrial.

Attorneys’ Fees

Appellants contend next that the trial court erred in granting judgment against them for attorneys’ fees under the guaranties. They assert that although the lease obligated Four C Corporation to pay attorneys’ fees, since the guaranty agreement does not expressly provide for attorneys’ fees, the guarantor is not liable for them, citing Miller v. Bush, 42 S.W.2d 156, 159 (Tex.Civ.App.-Waco 1931, writ ref’d). Miller is not, however, controlling because in that case the attorneys’ fees were not allowed because neither the guaranty nor the obligation guaranteed provided for attorneys’ fees. Consequently, that court applied the rule that guarantors are not liable for attorneys’ fees, unless they are provided for in the contract guaranteed, or, if that contract is silent with respect to attorneys’ fees, unless the guaranty so provides. In this case the contract guaranteed expressly provides for attorneys’ fees and the guaranty agreement specifically binds the guarantor to pay all indebtedness incurred by the lessor by reason of the lessor’s default. This, of course, includes attorneys’ fees incurred in asserting the rights of the obligee. Since the lease agreements provide for attorneys’ fees against the principal obligor, and since the guaranties cover any and all indebtedness that the primary obligor may owe, the attorneys’ fees are included as a part of the guaranteed debt. Gubitosi v. Schoellkopf Products, Inc., 545 S.W.2d 528, 538 (Tex.Civ.App.-Tyler 1976, no writ); Young v. J. F. Zimmerman & Son, Inc., 434 S.W.2d 926, 927 (Tex.Civ.App.-Waco 1968, writ dism’d); McGhee v. Wynnewood State Bank, 297 S.W.2d 876, 884 (Tex.Civ.App.-Dallas 1957, writ ref’d n.r.e.). Accordingly, we hold that trial court properly concluded that attorneys’ fees were recoverable from the guarantors.

Interest

Additionally, appellants complain of the refusal of the trial court to admit evidence showing that certain sums allegedly guaranteed by appellants Wharton and Mayfield were interest, and, therefore, not within the guaranty. In this respect, they contend that, as a matter of law, these guarantors cannot be made liable for interest. We cannot agree. Since the lease provides for interest and since that is the contract guaranteed, the trial court properly permitted recovery of interest on the same rationale as that of attorneys’ fees, discussed supra.

Admission of Summaries

Appellants next argue that the trial court erred in admitting into evidence certain appellees’ exhibits which were summaries of accounts relating to payment made to appellees on the leases and pertain to certain payments made and credits due. They assert that these summaries were hearsay since the proper predicate for their admission into evidence under Tex.Rev.Civ. Stat.Ann. art. 3737e (Vernon Supp.1978) was not laid. We agree because it was not shown that the original records were voluminous or that appellants had had access to the original underlying records. Black Lake Pipe Line Co. v. Union Construction Co., 538 S.W.2d 80, 93-94 (Tex.1976); Hanson Southwest Corp. v. Dal-Mac Construction Co., 554 S.W.2d 712, 723 (Tex.Civ.App.-Dallas 1977, writ ref’d n.r.e.).

Consideration

Appellants also assert that the instructed verdict . was improper because there were issues raised by the evidence as to whether the guaranty agreements were supported by consideration. In this respect, they contend that they presented evidence that the guarantors were to receive stock or stock options in Four C Corporation as consideration for acting as guarantors and that since the guarantors failed to receive this stock, there was no consideration for the execution of the guaranties. Whether appellants failed to receive stock from the primary obligor is immaterial. Rather, our question is whether consideration exists between the plaintiffs and the guarantors. In this respect sufficient consideration exists if the primary obligor receives some benefit. Bonner Oil Co. v. Gaines, 108 Tex. 232, 191 S.W. 552 (1917); Hargis v. Radio Corp. of America, Electronic Components, 539 S.W.2d 230, 232 (Tex.Civ.App.-Austin 1976, no writ); Estes v. Oilfield Salvage Co., 284 S.W.2d 201, 204 (Tex.Civ.App.-Dallas 1955, no writ). Here it is undisputed that the equipment covered by both of these leases was delivered to Four C in reliance on the guaranties and that the primary obligor received the benefit of its bargain. We conclude, therefore, that this contention is without merit.

Appellants next contend that since the guaranties were executed after the leases, the consideration for the leases cannot also serve as consideration for the guaranties. We cannot agree. Before addressing the merits of this contention, we first note that all written contracts are presumed to be supported by consideration. Tex.Rev.Civ.Stat.Ann. art. 27 (Vernon 1969); Unthank v. Rippstein, 386 S.W.2d 134, 138 (Tex.1964); Maykus v. Texas Bank & Trust Co. of Dallas, 550 S.W.2d 396 (Tex.Civ.App.-Dallas 1977, no writ); Waters v. Waters, 498 S.W.2d 236, 240-41 (Tex.Civ.App.-Tyler 1973, writ ref’d n.r.e.). Thus the guaranties themselves import consideration and the burden is on appellants to show lack of consideration. Maykus, supra, at 398. This appellants have failed to do.

Finally, appellants urge that since there were questions of fact as to whether the lease agreements and guaranties were executed several months apart, consideration for-the leases cannot serve as consideration for the guaranties. One guaranty shows that it was executed six days after the lease; however, the date on the other guaranty was identical to the date of the lease. Some testimony was to the effect that some of the guarantors actually signed the guaranties as long as several months after the lease. The evidence is, however, undisputed that the guarantors would execute the guaranties and that without the guaranties the lessors would not furnish the equipment. We conclude that appellants’ contention lacks merit. In Maykus v. Texas Bank & Trust Co. of Dallas, 550 S.W.2d 396, 398 (Tex.Civ.App.-Dallas 1977, no writ), the promissory note was dated August 8,1973, and the guaranty was dated August 15, 1973, and the argument was advanced by appellant that this shifted the burden to appellee to show new consideration. In rejecting this contention, we stated that this apparent discrepancy did not refute the presumption of consideration inherent in the guaranty agreement, and, therefore, held that:

[M]ere evidence of a time discrepancy in execution between a note and a written guaranty agreement is legally insufficient to rebut the statutory presumption of consideration which supports a separate guaranty accord.

Thus, the mere fact that a guaranty agreement was executed subsequent to the passing of consideration for the principal obligation does not rebut the statutory presumption of consideration nor does it shift the burden of proof to the plaintiffs to show additional consideration.

Ambiguity

Finally, appellants argue that the trial court erred in refusing to submit issues to the jury with respect to their allegation that the guaranties are ambiguous and further, that the trial court erred in determining as a matter of law that the guaranties were not ambiguous. Appellants urge that the guaranties are ambiguous because the agreements provide in one part that all guarantors are “jointly and severally” liable and that they bind themselves to pay “any and all indebtedness” which would indicate a general liability of each signer for the total indebtedness as set out in the equipment leases, and then the same instrument later provides that “the undersigned shall not be required to pay the lessor hereunder more than the sum set out adjacent to the undersigned names.” Thus, appellants contend that on the face of the instrument it calls for two different liabilities. We cannot agree. First, it was not error for the trial judge to refuse to submit issues on the alleged ambiguity of the guaranties because the question of whether a written agreement is ambiguous is a question of law for the court, rather than for a jury question. Davis v. Andrews, 361 S.W.2d 419 (Tex.Civ.App.-Dallas 1962, writ ref’d n.r.e.). Secondly, a reading of the guaranty agreements clearly indicates that the agreements are capable of only one meaning and that is that each guarantor is jointly and severally liable for the indebtedness of Four C Corporation under each lease except that none of the guarantors can be required to pay more than the amount stated by each guarantor’s name. Accordingly, the guaranty agreements were not ambiguous.

Reversed and remanded.

      . These default judgments have now become final since no appeal was taken from them.


author: CLAYTON, Justice.

text:
    HARTFORD CASUALTY INSURANCE COMPANY, Appellant, v. Fred L. CARROLL, Appellee.
    No. 8175.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 26, 1978.

      William Drew Perkins, Lufkin, for appellant.
    Joe R. Smith, Woodville, Jimmy W. Nettles, Beaumont, for appellee.
   CLAYTON, Justice.

Appellee, as plaintiff below, filed this suit against appellant, Hartford Casualty Insurance Company, seeking damages pursuant to a “lightning damage” provision of an insurance policy, and also damages under the provisions of The Texas Deceptive Trade Practices Act, Tex.Bus. & Comm. Code Ann. § 17.41, et seq. (Vernon Supp. 1978). Based upon a jury verdict, judgment was entered awarding appellee $2,735 for damages under the terms of the insurance policy and, pursuant to The Deceptive Trade Practices Act, treble damages in the sum of $15,705, and escalated attorney fees totaling $12,150. From this judgment appellant has perfected its appeal.

The appellee’s cause of action for a deceptive trade practice act is based upon the allegations in his petition that “Plaintiff, at the special instance and request and direction of Defendant’s agents proceeded to have the damages to his water well and water system repaired or replaced . • . . and upon completion of said repairs, the Defendant, for no apparent reason, denied Plaintiff’s right and just claim.” Plaintiff then alleges “that Defendant engaged in false, misleading or deceptive acts or practices in its conduct with the Plaintiff as to the Defendant’s representations aforementioned.” Following this allegation, plaintiff then lists several acts about which he complains, all of which are acts enumerated under Tex.Ins.Code Ann. art. 21.21 — 2 (Vernon Supp.1978). However, plaintiff concedes in his brief that this case was not tried or submitted to the jury under this provision of the Insurance Code.

There are no pleadings or proof of any misrepresentations made with reference to the issuance of the insurance policy. It is clear the cause of action for a deceptive trade practice act is predicated solely upon the testimony in the record concerning the agreement of appellant’s agent to pay for appellee’s expenses in repairing this water well.

The record discloses that appellant, on January 14, 1976, issued to appellee an insurance policy which, among other things, provided coverage for damages caused by lightning. It is contended by appellee that on May 31, 1976, his water well, located on his premises, was damaged by lightning. The witness who repaired the damages testified he was called by appellee, inspected the well on the following day, and within a matter of two or three days completed the drilling of a new well for appellee. He gave a statement of the expenses totaling $2,791.93 dated June 2, 1976, and testified that the work was completed “approximately two days before” the preparation of the statement. Appellee testified that he contacted appellant’s agent with reference to this incident on June 2,1976, and, according to appellee, the agent stated, “Fred [appel-lee], we have a lot of trouble around here like this” and “Get the well fixed and bring me the bill.” Appellee later gave the bill prepared by the repairman, and the agent said at that time, “This is too much or this is too high. I’ll have to take the bills and send them in to the insurance company.” The agent testified that the only statement he made to appellee was “lightning damage was covered and you’ll need to determine what’s wrong with your water well by having a water well man or electrician go by and see the well, determine what’s wrong with it, and let me hear from you.” Subsequently, appellee presented the bill to the agent; the same was submitted to the company who denied the claim on the basis there was no “definite proof that lightning was the cause of the well failure.”

Based upon the above transactions, appel-lee filed this suit contending the same was in violation of The Texas Deceptive Trade Practices Act.

It is conceded by both parties that damage by lightning was insured by the policy written by appellant. The only transaction occurring between appellee and appellant’s agent, upon which appellee based his cause of action for a deceptive trade practice act, was the conversation between the agent and appellee wherein the agent stated, “Get the well fixed and bring me the bill.” His only contention is that the refusal to pay for the damages was a deceptive trade practice act within the meaning of The Texas Deceptive Trade Practices Act, Tex. Bus. & Comm.Code Ann. § 17.41, et seq. (Vernon Supp.1978). This is made clear by the testimony of appellee’s attorney, wherein he testified, “This is a very unique point as far as an insurance case. These cases are filed normally on a straight contract basis, and there’s no case law at this particular time on the consumer protection under a direct action against the insurance company on a breach of contract. . . . ”

Section 17.50 of The Texas Deceptive Trade Practices Act provides:

“(a) A consumer may maintain an action if he has been adversely affected by any of the following:
(1) the use or employment by any person of an act or practice declared to be unlawful by Section 17.46 of this subchapter; . . . ”

Section 17.45 of the Act defines “consumer” as follows:

“(4) ‘Consumer’ means an individual, partnership, corporation, or governmental entity who seeks or acquires by purchase or lease, any goods or services.”

Under the facts of this case, the agreement made by appellant’s agent was not made or given as a result of appellee’s seeking or acquiring by purchase or lease any goods or services. At the time the agent gave the statement made the basis of this cause of action, there was already in force and effect an insurance policy insuring against any damage caused by lightning. The agreement, even if construed as such, created by the agent’s statement added nothing to the liability of the insurance company under the policy. The agreement to pay for the damages must be considered as separate and apart and completely independent from the obligations and liability arising from the insurance policy itself. In so considering such agreement, it is clear that appellee did not seek or acquire by purchase or lease any goods or services, and cannot be a “consumer” within the meaning of Sec. 17.45 of The Deceptive Trade Practices Act, and does not have the right to maintain this action under the provisions of Sec. 17.50 of such Act.

The trial court entered judgment for the sum of $2,735 based upon the damages found by the jury to be the “reasonable cost of repairs to such well and system,” and that such damages were recoverable under the provisions of the insurance policy. This amount for damages was found by the jury in response to S.I. No. 2 which inquired of the jury, “What do you find from a preponderance of the evidence to be the reasonable cost of repairs to such well and system;” to which the jury answered, “$2,735.00.” The point of error urged by appellant in connection with damages complains of the submission of damages in S.I. No. 9 which inquired of the jury with reference to damages for “mental anguish and cost of repairs.” No point of error is specifically directed to the submission S.I. No. 2. We, therefore, hold that the award of $2,735 for damages to the water well and system should be sustained, and the judgment for that amount should be affirmed.

The trial court entered judgment in the amount of $150 as reasonable attorney’s fees “as heretofore awarded to plaintiff on Motion for Sanctions.” No complaint has been made to this part of the judgment.

The judgment of the trial court in awarding damages and attorney fees under The Texas Deceptive Trade Practices Act is reversed, and we hereby render judgment that appellee take nothing as to his cause of action asserted under The Texas Deceptive Trade Practices Act. That part of the judgment awarding damages in the amount of $2,735 and $150 for attorney fees is affirmed.

Since we have affirmed the judgment in part and reversed in part, we tax the costs on appeal and in the court below equally against the parties. Tex.R.Civ.P. 448; Coca Cola Bottling Co. v. Hobart, 423 S.W.2d 118, 126 (Tex.Civ.App.—Houston [14th Dist.] 1967, writ ref’d n. r. e.); Combined American Insurance Co. v. City of Hillsboro, 421 S.W.2d 488, 491 (Tex.Civ.App.—Waco 1967, writ ref’d n. r. e.).

REVERSED and RENDERED in part and AFFIRMED in part.


author: KEITH, Justice.

text:
    Don CHAPMAN, d/b/a Don Chapman Motor Sales, Appellant, v. Alice MILLER, Appellee.
    No. 8137.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 16, 1978.
    Rehearing Denied Dec. 14, 1978.

      William R. Travis, Austin, for appellant.
    Gray B. Jolink, Austin, for appellee.
   KEITH, Justice.

Defendant below appeals from an adverse judgment rendered in a bench trial of a suit brought under the Texas Consumer Credit Code, Chapters 7 and 8, and the Federal Truth in Lending Act and Regulation Z promulgated thereunder.

Plaintiff entered into a retail installment contract with Don Chapman Motor Sales for the purchase of a used automobile. The contract provided for a down payment of $200, six weekly payments of $25, and eighteen monthly payments of $70.47. Plaintiff made the down payment and the six weekly payments without too much difficulty. The next five monthly installments were accepted even though they were late; but, when the March 1975 payment became overdue, defendant repossessed the car notifying plaintiff that the entire balance was then due and payable. When plaintiff did not pay the balance due, defendant sold the car and determined that plaintiff was entitled to a refund of $19.69. Before the refund was made, plaintiff brought this suit alleging several violations of the cited statute and regulation. The trial court agreed and awarded damages, plus attorney’s fees, and the appeal is predicated upon nineteen points of error.

We do not find it necessary to discuss each of the points brought forward. While it has been said that judicial nitpicking “has been mandated as the order of the day” in transactions involving consumer credit, a finding of one violation of state law and one of the federal regulation is sufficient to trigger the recovery of the statutory damages under the Texas Code, TILA, and Regulation Z. 15 U.S.C.A. § 1640(g); Art. 5069-8.01(g). Consequently, we discuss only those points which directly affect the judgment to be entered in this cause.

1. Violation of Federal Regulation

In point of error three, defendant complains that the trial court erred in conclusion of law number 14 by holding that his contract violated 12 C.F.R. § 226.8(a)(1) because the description of the security interest is not on the same side of the paper as the buyer’s signature.

The cited section requires that all disclosures which must be made thereunder be made together on:

“(1) The note or other instrument evidencing the obligation on the same side of the page and above or adjacent to the place for the customer’s signature; or
“(2) One side of a separate statement which identifies the transaction.”

Defendant chose to make his disclosures on the retail credit contract. However, he failed to put all the required disclosures on one side of the contract above plaintiff’s signature, i. e., the description of his retained security interest is located on the reverse side of the contract. Relying upon the language found in Southwestern Inv. Co. v. Mannix, 557 S.W.2d 755, 765-766 (Tex.1977), we are of the opinion that the trial court correctly found a violation of Regulation Z.

Defendant claims that he did not have to make all required disclosures on the front side because of the Interpretive Ruling of the Federal Reserve Board, 12 C.F.R. § 226.801, which allows the required disclosures to be made on both sides of a combination contract and security agreement. This interpretation, however, has a caveat:

“Provided, That the amount of the finance charge and the annual percentage rate shall appear on the face of the document, and, if the reverse side is used, the printing on both sides of the document shall be equally clear and conspicuous, both sides shall contain the statement, ‘NOTICE: See other side for important information,’ and the place for the customer’s signature shall be provided fol lowing the full content of the document.” (latter emphasis added)

The space provided for the plaintiff’s signature is on the front page of the contract only and does not follow “the full content of the document.” Therefore, defendant has violated Section 226.801. McDonald v. Savoy, 501 S.W.2d 400, 406 (Tex.Civ.App.—San Antonio 1973, no writ).

Defendant rationalizes that his notices at the top and bottom of the front side allow him to incorporate by reference all disclosures and conditions from the reverse side into the front side above the signature. The notice at the top of the page provides:

“BUYER HAS ELECTED TO PURCHASE FROM SELLER SUBJECT TO THE TERMS AND CONDITIONS AS SET FORTH BELOW AND UPON THE REVERSE SIDE HEREOF, THE FOLLOWING DESCRIBED MOTOR VEHICLE, WHICH BUYER HAS THOROUGHLY INSPECTED AND WHICH MEETS WITH BUYER’S APPROVAL IN ALL RESPECTS:”

The notice at the bottom of the page provides: “NOTICE: SEE REVERSE SIDE FOR IMPORTANT INFORMATION, ALL TERMS OF WHICH ARE HEREBY INCORPORATED BY REFERENCE.” However, this notice was below plaintiff’s signature.

The Truth in Lending Act was enacted and Regulation Z was issued “to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit. . . .”15 U.S.C.A. § 1601; 12 C.F.R. § 226.1(a)(2); accord, Mourning v. Family Publications Service, Inc., 411 U.S. 356, 363-368, 93 S.Ct. 1652, 36 L.Ed.2d 318, 326-329 (1973); Thomas v. Myers-Dickson Furniture Co., 479 F.2d 740, 741-742 (5th Cir. 1973). Their provisions are detailed and explicit.

As noted in Charles v. Krauss Co., Ltd., 572 F.2d 544, 546 (5th Cir. 1978):

“Moreover, liability flows from even minute deviations from the requirements of the statute and of Regulation Z. The statute aims to assure a meaningful disclosure of credit terms so that consumers may shop comparatively for credit . ..”

See also Pennino v. Morris Kirschman & Co., Inc., 526 F.2d 367, 370 (5th Cir. 1976); Powers v. Sims and Levin Realtors, 396 F.Supp. 12, 17, 20 (E.D.Va.1975), aff’d in part & rev’d in part on other grounds, 542 F.2d 1216 (4th Cir. 1976). Therefore, the defendant may not escape liability by means of incorporation by reference. The line provided for plaintiff’s signature should have been at the end of the contract; her signature so located would show that she knew to read the entire contract — front and back — for all important provisions before signing it. The fact that she did not read any of the contract is immaterial.

2. Violation of State Law

In his eighth point of error, defendant contends that the trial court erred in conclusion of law number 30 by holding that he violated Article 5069-7.01 by disclosing the sales tax as “official fees” in the contract.

Subsection (g) of the cited statute defines “official fees” as “the amount of the fees prescribed by law for filing, recording or otherwise perfecting and, in addition, for releasing or satisfying a retained title, lien or other security interest created in connection with a retail installment transaction.” Clearly, sales tax does not fit within the definition of an “official fee”. See Smith v. Chapman, 436 F.Supp. 58, 64 (W.D.Tex.1977). The trial court’s finding of a violation of the state law is affirmed.

3. Finance Charge and Statutory Penalty

In defendant’s point of error sixteen and plaintiff’s crosspoint one, both parties contend that the trial court erred in conclusion of law number 16 by holding that the finance charge in this transaction was $326.99. Defendant claims the finance charge was $199.99, while plaintiff claims it was $423.46. We disagree with both parties.

Section 226.4 of 12 C.F.R. gives instructions on how to determine a finance charge. Applying these rules to the contract before us, we hold that the finance charge is the sum of the time price differential and the official fees, or $249.04. We are not required to include the premiums for property insurance, credit life insurance, or health and accident insurance in the finance charge because defendant has satisfied the caveats of §§ 226.4(a)(5) and (6).

In his point of error number seventeen, defendant contends the trial court erred in conclusion of law number 15 by awarding damages of $653.98 for violations of Regulation Z. We agree. The applicable statutory penalty set out in 15 U.S.C.A. § 1640(a) includes twice the amount of the finance charge, plus court costs and reasonable attorney’s fees. See Grant v. Imperial Motors, 539 F.2d 506, 510-511 (5th Cir. 1976); Thomas v. Myers-Dickson Furniture Co., supra 479 F.2d at 746. In the present case, the proper statutory penalty would have been twice of $249.04, or $498.08, plus court costs and reasonable attorney’s fees. Point of error seventeen is sustained.

We have reviewed the remaining points in appellant’s brief and find none which, if sustained, would require a rendition of the judgment; and, as indicated above, having found at least one violation of state law and federal regulation, our discussion of the other points of error would not affect the judgment of modification and affirmance which we order. Consequently, no further mention will be made of such other points of error.

The judgment of the trial court is reformed so that the plaintiff will recover of and from the defendant the sum of $498.08 for the violation of Regulation Z instead of the excessive amount of $652.98 mistakenly awarded by the trial court; and, as reformed, the judgment is Affirmed.

      . Tex.Rev.Civ.Stat.Ann. arts. 5069-7.01 through 5069-7.10 and 5069-8.01 through 5069-8.06 (1971), as amended (Supp.1978). All statutory references hereinafter will refer to the articles in the Code and to the subsections herein noted unless otherwise indicated.

      . The Federal Act is to be found in 15 U.S.C.A. §§ 1601-1665 (1974), as amended (Supp.1978), and it will be mentioned hereafter as “TILA”. Regulation Z, promulgated by the Federal Reserve Board, is to be found in 12 C.F.R. §§ 226.1-226.12, and references to Regulation Z will refer to the sections therein noted unless otherwise indicated.

      . See Ford Motor Credit Co. v. Blocker, 558 S.W.2d 493, 499 (Tex.Civ.App. — El Paso 1977, writ ref d n. r. e.), and Casillas v. Gov’t Emp. Credit Union, etc., 570 S.W.2d 57, 59, fn. 1 (Tex.Civ.App. — El Paso 1978, writ ref. n. r.e.).


author: EVANS, Justice.

text:
    EDWARD BANKERS & COMPANY, Appellant, v. James R. SPRADLIN, Appellee.
    No. 17181.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Nov. 16, 1978.
    Rehearing Denied Dec. 14, 1978.

      George M. Bishop, Houston, for appellant.
    Rolf W. Spradlin (no brief filed), Houston, for appellee.
   EVANS, Justice.

This is a suit for the recovery of lease rentals allegedly due on vacated office space.

The lease agreement in question, executed by Houston Endowment, Inc., as lessor, and by James R. Spradlin, as lessee, was for an office suite (suite 325) in the Houston Bar Center Building. Under the terms of the lease, Spradlin agreed to pay a monthly rental of $330.00 for a five year term beginning August 1, 1970, and ending July 31, 1975.

In March 1972, the Houston Bar Center Building was acquired by new owners who contracted with the plaintiff to manage the building and to receive the rentals therefrom. Mr. Spradlin continued to occupy suite 325 and he used those offices for his law practice until September 1972, when he moved to suite 1000, a larger and more expensive space in the same building. After Spradlin moved his offices to suite 1000 he made no further rental payments on suite 325, and the plaintiff subsequently brought this action against him for the recovery of the rental payments allegedly owed for the last four months of 1972 and the first three months of 1973.

The principal controversy in the trial court was whether Spradlin had been released of his obligations under the lease on suite 325 when he moved his offices to suite 1000. The jury answered special issues in favor of the position advanced by Mr. Spradlin, and the trial court entered a take nothing judgment against the plaintiff on its claim for rent and for attorney’s fees. The trial court denied Spradlin’s cross-claim for recovery of damages based upon the plaintiffs alleged failure to clean carpets, provide security guards, reasonable heating and cooling, and for attorney’s fees. This is a limited appeal from that portion of the trial court’s judgment rendered against the plaintiff.

The jury found (Special Issue No. 3) that the plaintiff had released Spradlin from liability under the lease, and (Special Issue No. 2) that the plaintiff’s building manager had apparent authority to negotiate leases and releases of leases on behalf of the plaintiff. In eight points of error the plaintiff challenges the legal and factual sufficiency of the evidence to support these findings and contends that the trial court erred in its instructions with respect the term “apparent authority”.

The surrender of leased premises by a tenant and the acceptance of possession by the landlord ordinarily releases the tenant from further obligation to pay rentals. 51C C.J.S. Landlord & Tenant § 129, pages 410-412; Patteson v. McGee, 350 S.W.2d 241, 244 (Tex.Civ.App.—Eastland 1961, no writ.) An agreement of surrender and release may be express, or it may be implied from the circumstances and acts of the parties. Drollinger v. Holliday, 117 S.W.2d 562, 564 (Tex.Civ.App.—Waco 1938, no writ). The question of whether there has been an acceptance by the landlord releasing the tenant from further obligations under the lease involves a determination of the intent of the parties, and this may present an issue of fact. Patteson v. McGee, supra.

Mr. Spradlin testified that the only person he dealt with when he moved his offices from suite 325 to 1000 was Mr. James Milli-gan, the plaintiff’s building manager at that time. He stated that the building had changed hands several times, that he did not know who then owned the building, but that the building had a telephone number, which the tenants used to call for service, and when he called this number he was referred to Mr. Milligan. He assumed that Mr. Milligan represented the owners “since everybody leased through him, or released through him, or moved within the building through him.” Mr. Milligan was the man “who you got new leases from, and when you moved and things of that nature”, and he leased his new office space in suite 1000 from Mr. Milligan. When he moved his offices to suite 1000 his rental was increased from $330.00 per month to approximately $600.00 per month, and he no longer paid rent on suite 325. Mr. Milligan told him he did not have to pay any more rent on suite 325 and that he was released from the obligations. He believes he received a letter confirming the release of his obligations with respect to suite 325, but he was unable to find the letter. When he moved his offices from suite 325, he completely vacated the space and left nothing on the premises. He believed that he had signed a new lease on suite 1000, but was not sure and did not have a copy of the new lease. When he moved to suite 1000 he began paying rent on that space to the building management, and he signed a new document with them, but he did not know whether that was a sublease or a new lease. He stated that he would not have leased suite 1000 if he thought he had to continue to pay rent for suite 325 as well as suite 1000. If Mr. Milligan had not told him that he would no longer be responsible for rent on suite 325, he would not have moved.

The building manager, James Milligan, was not employed by the plaintiff at the time of trial, and he did not testify.

The plaintiff’s vice-president in charge of building operations, Mr. Quinten Sieck, testified that in September 1972, Mr. Milligan had worked under his supervision. Mr. Sieck stated that he had not given Milligan authority to release Spradlin from the lease on suite 325, and that he himself would not have had this authority. He stated that such action had to be approved by the plaintiff’s board of directors and that he did not know if such action had ever been approved. After Spradlin moved out of suite 325, the building management stored rolls of carpet and boxes in part of suite 325, but Mr. Sieck did not recall for whom the material had been stored.

The jury could have concluded from the testimony that Spradlin agreed to vacate his office space in suite 325 and to move his offices to suite 1000, with a substantial increase in his monthly rent, upon the assurance of the plaintiff’s building manager that he would not have any further obligation to make rental payments on suite 325. The jury might also have inferred from the testimony that the plaintiff accepted Spradlin’s surrender of the office space in suite 325 and that when Spradlin vacated those premises, the plaintiff resumed possession and made use of the space of its own purposes. Thus, from the circumstances presented by the evidence the jury could have concluded that there was a mutual understanding and agreement between the parties to terminate Spradlin’s lease on suite 325 and to enter into a new lease arrangement covering suite 1000. Where the circumstances and acts of the parties are equivalent to an agreement on the part of the tenant to vacate the leased premises and on the part of the landlord to resume possession, a surrender results by operation of law. Cannon v. Freyermuth, 4 S.W.2d 84 (Tex.Civ.App.—Dallas 1928, no writ).

The evidence is legally and factually sufficient to support the jury’s finding that the plaintiff released Spradlin from liability under the lease covering suite 325. The plaintiff’s points of error challenging the sufficiency of the evidence to support this finding, are, therefore, denied. In view of this determination it becomes unnecessary to consider the plaintiff’s points of error regarding the question of whether the building manager had apparent authority to bind the plaintiff to an express agreement of release.

The judgment of the trial court is affirmed.


author: CLAYTON, Justice. KEITH, Justice,

text:
    LUBBOCK MANUFACTURING CO., Appellant, v. William SAMES, III, Administrator of the Estate of Jesus Verduzco, Deceased, et al., Appellees.
    No. 8159.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 22, 1978.
    Rehearing Denied Dec. 14, 1978.

      Damon Ball, San Antonio, for appellant.
    J. Patrick Hazel, Austin, for appellees.
   CLAYTON, Justice.

This appeal involves the question of venue for an action brought against Lubbock Manufacturing Company (hereinafter called defendant), a resident of Lubbock County, Texas.

This suit was originally filed in Maverick County by William Sames, III, as Administrator of the Estate of Jesus Verduzco, deceased, and Francisca Cedillo Vidua de Ver-duzco, Individually, and as next friend of the minor children of Jesus Verduzco, deceased (hereinafter called plaintiffs) against this defendant, Fontaine Truck Equipment Company, Inc., Altamil Corporation, and Surtigas, S.A.

Defendant filed its plea of privilege, asserting its right to be sued in Lubbock County, the county of its residence. Plaintiffs filed their controverting plea, contending that venue was maintainable in Maverick County under the terms of Tex.Rev.Civ.Stat.Ann. art. 1995, subdivs. 4, 23, 21, 29a (Vernon 1964), and subdivs. 9a, 31 (Vernon Supp.1978).

The trial court overruled defendant’s plea of privilege. Subsequent to the hearing, but prior to the rendition of the order, this cause was transferred to Val Verde County, Texas, pursuant to Tex.R.Civ.P. 257, and such action was taken subject to and without prejudice to defendant’s plea. Appellant makes no complaint to this action under Rule 257.

Jesus Verduzco, deceased, was the driver of a Surtigas, S.A., tractor-trailer which overturned in Eagle Pass, Maverick County, exploded, and killed several persons, including Jesus Verduzco. William Sames, III, was named Administrator of the Estate of Jesus Verduzco. William Sames, III, was a resident of Maverick County, and the administration of the Estate of Jesus Ver-duzco was pending in Maverick County. The tank-trailer which overturned and exploded was designed, manufactured, and sold by Lubbock Manufacturing Company, a private corporation, which maintained its place of residence in Lubbock County. None of the other defendants filed pleas of privilege.

The trial court did not file findings of fact and conclusions of law, and none were requested. Under these circumstances, the judgment of the trial court should be upheld if there is sufficient evidence of probative value in the record to sustain venue under any of the subdivisions pleaded. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953); Loomis v. Sharp, 519 S.W.2d 955 (Tex.Civ.App.—Texarkana 1975, writ dism’d); Key v. Davis, 554 S.W.2d 60 (Tex.Civ.App.—Amarillo 1977, no writ).

The cause of action asserted by plaintiff was based upon strict tort liability in that the tank-trailer was “defective in design and/or manufacture and that said defect existed at the time that said tank was introduced into the stream of commerce and said defect caused or contributed to cause the injuries and subsequent death of Jesus Ver-duzco, deceased. . . .”

Appellant’s thirteenth and fourteenth points of error complain of the trial court’s action in overruling the plea of privilege because there is no evidence, or insufficient evidence, that a cause of action arose in Maverick County.

It was stipulated by the parties that “[djamages sustained by . plaintiffs was proximately caused by the overturning of the trailer . . . and the fire which resulted therefrom, which occurred in Eagle Pass, in Maverick County, Texas, . . . that Lubbock Manufacturing Company manufactured and sold the liquified petroleum gas transportation tank . which was involved in the accident . . . and which trailer was attached to the truck ... at the time of the incident. Lubbock Manufacturing Company is in the business of manufacturing and selling liquified petroleum gas tanks. . . . ”

Venue is maintainable in Maverick County under the provisions of subdiv. 23 of art. 1995 if plaintiffs have proved a cause of action and if the cause of action, or a part thereof, arose in Maverick County.

The record reflects that the deceased was driving the truck and tank trailer along the highway near Eagle Pass, in Maverick County, when the truck took a sudden turn to the left and then a sudden turn back to the right and then overturned. The truck and tank, after the turnover, “traveled for a distance of 85 to 95 feet before the explosion and resulting fire.”

One of plaintiff’s expert witnesses testified that he found defects in the tank-trailer design in “basically three areas,” and those three areas “are a design such that it tends to a propensity for overturn of the vehicle. It does not provide for resistence to a penetration or a failure or breaching of the tank as a result of an easily anticipated accident involving an overturn of the trailer.”

Another witness testified the initial speed of the truck immediately preceding the events leading up to the overturn to be “from 67 to 70 miles an hour,” and that the overturn speed to be 35 miles an hour.

Further testimony from an expert witness that “considering the reconstruction [of the accident], the center of gravity of the trailer, the radius of the curve and the speed at turnover,” the radius of turn of the tractor was a reasonably foreseeable maneuver that might be engaged in by a driver or operator of a tractor of “this type and character,” and that such turning maneuver “should be foreseeable by a reasonably prudent manufacturer.” This witness further testified that, in considering the contents of the trailer, and the high center of gravity, the road condition available, and the environment of use of this tractor-trailer combination rendered the trailer as designed and constructed unreasonably dangerous. He also testified that the “truck-tractor semi-trailers, they' have high CGs [centers of gravity], and so this makes them susceptible to turnover. .” With this susceptibility of turnover then the commodity being transported — the liquefied petroleum gas — adds to the unreasonably dangerous propensity and condition. “[S]o with this condition existing, then the — to alleviate this or reduce it, the CG [center of gravity] of the trailer should be lowered in order to reduce its susceptibility to turnover.”

An expert witness further testified that “if the material in the tank remained elastic then the stress induced in the tank due just to the bending loads, and not including the internal pressure loads would be far in excess of the ultimate strength of the material out of which the tank is constructed; so this, then, would tell us that we do, in fact, have a problem — at least a potential problem with this tank in the event that it does roll over, and then the third area, as I recall, is the fact that there is nothing in the design of this tank to attempt to limit the severity of the hazard in the event that the tank is actually breached. That is to say that when the tank is actually breached we could expect a complete disbursement of the entire content of the tank, and, of course, there are alternatives to this; that is to compartmentize [sic] the tank in such a fashion that you might breach part of it and lose, say, 20 percent of the contents or whatever the case might be without losing the entire contents. Of course, a very severe problem is associated with this particular area which happened in this particular accident and that is the rocketing effect in the event say the back end of the tank is broken off. I think in this particular case the tank rocketed about a third of a mile— that order of magnitude.”

There is other testimony that the center of gravity was very critical and that the “turnover, itself, arose from driver control because he has turned the combination on a radius which was — is critical for the speed for which he was traveling . . ..He turned on a radius such that he exceeded the limit of the truck-tractor semi-trailer as far as turnover.” The expert witness upon being asked, “. . and the higher the center of gravity of a unit would it be axiomatic to say the greater its likelihood of overturn?” He answered, “That would be true because as you raise the center of gravity on the same given radius then you reduce the speed at which it would turn over. As you lower the center of gravity, then the speed comes up for this same given radius.”

Plaintiffs’ cause of action was asserted as a strict tort liability case under the provisions of the Restatement (Second) of Torts § 402A (1965). The rule applies to unreasonably dangerous products whether the defect occurred in their production or their design. Rourke v. Garza, 530 S.W.2d 794 (Tex.1975); Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex.1974).

We have carefully reviewed all the evidence which consists of approximately seven hundred pages in the statement of facts, and we hold that such evidence is factually sufficient to support a finding by the trial court that a cause of action under the provisions of Restatement (Second) of Torts § 402A was proven in that the tank-trailer was defectively designed, that it was unreasonably dangerous to the user, and that the very nature of the tank-trailer was such that there had been no substantial change in the condition in which it was sold by the manufacturer. Therefore, the judgment of the trial court should not be disturbed. Banks v. Collins, supra; Loomis v. Sharp, supra; Key v. Davis, supra.

In addition to proving a cause of action, under the provisions of Tex.Rev.Civ.Stat. Ann. art. 1995, subdiv. 23, it is necessary to prove that such cause of action, or part thereof, arose in Maverick County.

The question to be decided here is whether a cause of action based upon strict tort liability in defective design cases can be brought, for venue purposes, under sabdiv. 23 of art. 1995, in the county where the accident occurred, notwithstanding the fact that the defect in design was manufactured or created in a county other than the forum county.

Our Supreme Court, in Rourke v. Garza, 530 S.W.2d 794 (Tex.1975), states, with reference to a strict tort liability case, “A finding of negligence is not required. In fact, the supplier may be liable even though he has exercised all possible care in the preparation and sale of his product. . While the definitions of ‘negligence’ and ‘defective design’ may have certain similar or common elements, they involve two separate theories of recovery.”

In the very recent case of Gonzales v. Caterpillar Tractor Company, 571 S.W.2d 867 (1978), our Supreme Court again reiterates its distinction between “negligent” design and “defective” design. The Court states:

“The care taken by the supplier of a product in its preparation, manufacture, or sale, is not a consideration in strict liability; this is, however, the ultimate question in a negligence action. Strict liability looks at the product itself and determines if it is defective. Negligence looks at the acts of the manufacturer and determines if it exercised ordinary care in design and production.”

Following the language in the Gonzales case, the emphasis or focal point, with reference to the cause of action in strict tort liability, is and should be placed upon the defective design of the product and not upon the conduct of the manufacturer in creating the defective design. It follows that the cause of action then is based upon the condition of the product and not upon the acts in manufacturing the product. The condition of the product, i. e., the defective design, gives rise to the cause of action in strict tort liability, and the conduct of the manufacturer or the place where such conduct occurs is of no import in so far as the place where the cause of action arose is concerned. We hold that in cases of strict tort liability based upon defective design, the cause of action being properly proven, arises in the county where the defectively designed product exists and causes the accident and is the producing cause of the physical harm sustained. We therefore hold that venue in this case is maintainable in Maverick County under Tex.Rev.Civ.Stat.Ann. art. 1995, subdiv. 23 (Vernon 1964).

We agree with appellant that venue in Maverick County is not maintainable under subdivs. 4, 9a, 27, 29a, and 31.

The judgment of the trial court in overruling appellant’s plea of privilege is affirmed.

AFFIRMED.

KEITH, Justice,

dissenting.

I respectfully dissent.

While driving the truck-tank combination in Maverick County, plaintiffs’ decedent— through inadvertence, negligence, or accident — overturned the rig; it skidded, ruptured, and he was killed. Defendant was sued because, more than nine years earlier, it had manufactured and sold the tank in Lubbock County in accordance with the provisions of the Liquefied Petroleum Gas Code. This particular tank had been attached to various trucks and trailers and had traveled more than nine hundred thousand miles — more than four times the distance from the earth to the moon at perigee — without incident.

Defendant is not shown to have done anything in Maverick County which contributed to the accident or decedent’s injury and death — except that it manufactured the tank in Lubbock County in accordance with designs approved by the agency charged with promulgating and enforcing safety in the transportation of liquefied petroleum gas.

Now the majority of this court, without citation of any authority in point, holds that defendant’s acts in designing the truck in Lubbock County gave rise to a cause of action in Maverick County solely because the accident and damages occurred in the latter county. The case most nearly in point which has come to my attention is Pesek v. Murrel’s Welding Works, Inc., 558 S.W.2d 39, 44 (Tex.Civ.App.—San Antonio 1977, writ dism’d), involving the alleged defective design of a hot oil unit which exploded. Pesek sought to recover on strict liability in tort because of the defective design of the hot oil unit. The court, passing upon a similar question to that confronting us, said:

“Plaintiffs assert that the hot oil unit was defective when manufactured and sold. As such, the breach occurred at the time of the manufacture and sale of such property, which was in Hockley County in 1968. Moreover, the defendant did not contract to do anything, or participate in any transaction in Frio County, Texas. The fact that the injury and damages occurred in Frio County, Texas is insufficient to show that the cause of action or a part thereof occurred in Frio County.”

Justice Klingeman, writing for the court in Pesek, cited, inter alia, Johns-Manville Sales Corp. v. Haden Co., Inc., 543 S.W.2d 415, 419 (Tex.Civ.App.—Fort Worth 1976), writ ref’d n.r.e., per curiam, 553 S.W.2d 759 (Tex.1977).

The Supreme Court stated the holding of the intermediate court in Johns-Manville:

“The court of civil appeals reversed, holding that the only ‘portion’ of Haden Company’s cause of action which ‘accrued’ in Wichita County was the sustentation of damages by Haden Company, and that damages alone is not a ‘part of the cause of action’ within the meaning of subdivision 27. 543 S.W.2d 415.”

The Court then noted its disagreement with another case and concluded by stating, “We agree with the holding in the present ease.” (553 S.W.2d at 760)

There is another facet of the holding of the majority which disturbs me — the failure to give proper recognition to the dual burden assumed by plaintiffs seeking to hold a domestic corporation in a foreign county under subdivision 23 of the venue statute. The necessary predicate to a recovery in every tort action was set out by Chief Justice Greenhill in Abalos v. Oil Development Co. of Texas, 544 S.W.2d 627, 631 (Tex.1976):

“[A]ny plaintiff must prove the existence and violation of a legal duty owed to him by the defendant to establish tort liability.” (emphasis supplied)

Under the definitive holding made in Employers Casualty Co. v. Clark, 491 S.W.2d 661, 662 (Tex.1973), the plaintiff, relying upon subdivision 23, must establish his cause of action “by proving at least a right and a breach by the defendant of the corresponding duty.”

Plaintiffs sought to establish the existence of a legal duty owed by defendant to their decedent by the invocation of Section 402A, Restatement, Torts 2d. To bring themselves within this section, it was their burden to show that the tank was unreasonably dangerous to the user (their decedent) because of the defective design thereof. This was but half of their duty under Abalos, supra, since it was also their burden to prove the violation of the legal duty. Western Wool Commission Co. v. Hart, Tex., 20 S.W. 131, 132 (Tex.Comm.App. 1892, opinion adopted); Mercantile Bank & Trust Co. v. Schuhart, 115 Tex. 114, 277 S.W. 621, 624 (1925).

I am disturbed that the majority has not addressed the failure of the plaintiffs to satisfy both elements of the burden imposed upon the plaintiffs in this cause. Defendant’s points have been, in effect, overruled sub silentio. Assuming, arguendo, the existence of the legal duty to plaintiffs’ decedent (under § 402A), I find no evidence tending to establish a violation of that legal duty in Maverick County.

Since I would follow the rationale of Clark and Pesek, I dissent from the judgment which affirms the trial court’s denial of defendant’s right to be sued in the county of its domicile.

      . At the time of the manufacture and sale of the tank in question, the statute was Tex.Rev. Civ.Stat.Ann. art. 6066d, et seq. (1962). The statute has been recodified and the “LPG Code” is now found in 2 Tex. Natural Resources Code §§ 113.001, et seq. (1978).

      . Plaintiffs’ able counsel, admitting that Pesek “appears to be contrary” to the position taken by plaintiffs in this case, argues that the author of Pesek “was viewing this as a contract rather than a tort.” Such a rationalization must come as a distinct surprise to the author of the opinion and to trial counsel for Pesek’s widow and children.