author: STEAKLEY, Justice. McGEE, Justice,

text:
    A. F. CONNER AND SONS, INC., et al., Petitioners, v. TRI-COUNTY WATER SUPPLY CORPORATION, Respondent.
    No. B-6343.
    Supreme Court of Texas.
    Jan. 18, 1978.
    Rehearing Denied March 1, 1978.
    Haley, Fulbright, Winniford, Bice & Davis, John W. Fulbright, Wilson, Olson, Stem & Farr, Lyndon L. Olson, Waco, for petitioner.
    Clark, Fisher, Gorin, McDonald & Rag-land, Leonard L. Gorin, Waco, Robert G. Carter, Marlin, for respondent.
   ON MOTION FOR REHEARING

STEAKLEY, Justice.

Our prior opinion delivered under date of September 27, 1977, is withdrawn and the following opinion is substituted therefor.

Tri-County Water Supply Corporation sued A. F. Conner and Sons, Inc., and Fidelity & Deposit Company of Maryland, the surety on Conner’s performance bond, for damages resulting from Conner’s alleged breach of a contract to construct a water distribution system. After a jury trial, and upon the basis of findings later noted, the trial court rendered judgment in favor of Tri-County for $389,815.85 plus prejudgment interest at the rate of six per cent per annum from December 13, 1970 in the sum of $75,282.25, and that Fidelity & Deposit recover over and against Conner. The Court of Civil Appeals ordered a remittitur of $119,542.33 and otherwise affirmed the trial court’s judgment. 541 S.W.2d 856. We reverse these judgments and remand the cause for a new trial.

Tri-County Water Supply Corporation is a non-profit corporation authorized to own and operate a water supply system in the rural area of eastern Falls County, Texas. In February of 1968, Tri-County contracted with Duff Engineers to make an engineering study of the feasibility of constructing a water supply system. Upon a favorable recommendation, Tri-County authorized Duff Engineers to solicit bids for the construction of the system. In October of 1968, Tri-County accepted the bid of A. F. Conner & Sons, Inc., and entered into a contract under which Conner was to construct the water supply system consisting of five pump stations and approximately 178 miles of plastic pipeline. The contract provided that all workmanship and materials would be of good quality and that upon completion of the work Tri-County would pay Conner the sum of $522,480.13, of which $389,815.53 was in payment for the pipeline. The contract also obligated Conner to replace or repair any defective material or equipment discovered within one year of completion. Duff Engineers was designated as the inspecting engineering firm. The certificate of completion was executed June 4, 1970, and thereafter numerous leaks and other defects were discovered. It appears that Conner ceased repairing the leaks and other defects on December 13, 1970.

Tri-County sued Conner in April of 1971, and alleged that the defects in the system rendered it “not reasonably fit for the purpose of the water distribution system” and that Conner had failed to discharge the contractual duty to repair the system and remedy the defects. Tri-County sought damages of $389,815.85, the value of the pipeline. There have been two trials. Upon the first trial in December, 1972, the jury found that the materials and workmanship used by Conner were not of good quality; but that Conner had substantially performed the contract, and that the reasonable cost of repairing and replacing the defective pipe and adapters was $4,853.77. The trial court rendered judgment on the verdict for Tri-County in the amount of $4,853.77; but upon the subsequent motion of Tri-County the trial court set aside this judgment and ordered a new trial on grounds not herein material.

One of the witnesses at the first trial was Mr. William Garner who had been an employee of Duff Engineers for some time and was an experienced inspector. He was directly responsible for supervising and inspecting the construction of the system. At the first trial, Garner testified that he had visited the job site on at least thirty-seven separate occasions and had personally inspected the construction. He testified that numerous leaks were discovered throughout the system after the June 4, 1970 completion date. He further testified that he believed the leaks would not stop and that, in his opinion, the workmanship and materials used by Conner were bad. Garner also said he believed that the only way to put the pipeline in “A-l” shape would be to lay a replacement line and completely abandon the Conner pipeline. Garner also stated that, in his opinion, the line as constructed had no value.

After the first trial concluded, Tri-County expanded the water supply system. This new addition began from the same well as the old system and was some 110 to 120 miles long. It ran in a different direction from the old system and shared only the well in common with the old system. The new system was also designed by Duff Engineers and was supervised and inspected by Duff’s employee, Gamer. Construction was by Brazos Construction Company. The new system differed from the old in that an aerator was designed and installed to cool the water before it went into the plastic pipeline. It was also shown that the temperature of the water affects the strength of the pipe, the amount it contracts and expands, and the pressure at which the system is operated.

The second trial was set for Monday, January 28,1974. On the preceding Friday, January 25, counsel for Tri-County advised Conner and Fidelity that Garner was in a Waco hospital and would be unable to testify; and that arrangements had been made to have his testimony at the first trial transcribed for introduction at the forthcoming trial. On the same date Tri-County, by written motion, requested the trial court to direct the court reporter to transcribe Garner’s testimony at the first trial. In its motion Tri-County alleged that Garner “would be unable to appear as a witness in this cause scheduled for trial for the week of January 28,1974, and that he was physically unable to have his deposition taken and that his testimony is essential to plaintiff’s case and that his testimony was developed in the prior trial which commenced in December, 1973, [sic] and that defendant’s counsel had full right to cross examination and therefore his testimony at the former trial is admissible during the trial commencing January 28th.” The trial judge granted the motion and issued the order.

When the cause was called for trial on January 28, counsel for Fidelity made an objection to the proposed introduction of Garner’s prior testimony and moved for a continuance until such time as Garner’s deposition could be taken, or he could appear at trial. Counsel for Fidelity represented to the court that Garner was no longer in the employ of Duff Engineers and contended that the affidavit and testimony of counsel for Conner would further support his motions. The trial court then heard evidence of the following facts and circumstances:

1)On Sunday, January 20, counsel for Tri-County visited Garner at his home and reviewed his testimony. At that time Garner seemed well and fully able to testify. Counsel reviewed the entire testimony with Garner and specifically stressed the question of the system’s value. Garner’s answers were the same as those he had given at the first trial;
2) On Thursday, January 24, counsel for Tri-County learned that Garner was in the hospital and went immediately to see him. Garner informed counsel that he was scheduled to have a mye-logram on Monday the 28th and surgery on the 29th to correct a low back condition. Garner further said that he was unable to be deposed because he was sedated, “full of shots,” and suffering from diabetes;
3) On Friday, January 25, counsel for Tri-County verified Garner’s continued hospitalization with his wife and then called counsel for Conner and Fidelity separately and informed them of Garner’s unavailability and the motion to transcribe his prior testimony;
4) Upon receiving this call, counsel for Conner called Garner, whom he knew personally, at the hospital. Garner confirmed the fact that he was scheduled for surgery on the 29th. Garner also said that he would not give the same testimony at the second trial as he had at the first. Garner said that his opinion as to the value of the system would differ and that he would now testify that the pipeline had some value;
5) On January 26, the Saturday preceding the trial, another of the attorneys for Tri-County visited Garner, who again confirmed his unavailability for trial and inability to be deposed. No mention of a change of testimony was made.

On this evidence the trial judge overruled Fidelity’s motion and objection, in which Conner had joined. The court indicated that when the prior testimony was offered with a proper predicate, it would consider a recess for the purpose of obtaining Garner’s deposition. The parties then selected a jury and trial commenced.

Tri-County called James Duff as the first witness and he was questioned at length, both on direct and cross examination. Throughout his testimony Duff made reference to Garner by name in connection with both the original system constructed by Conner and the expansion constructed after the first trial. Shortly after Duff completed his testimony, Tri-County offered the former testimony of Garner into evidence. In support of its offer and in addition to the evidence theretofore adduced at the hearing on Fidelity’s motion, Tri-County offered the following sworn statement, dated January 29, 1974:

AFFIDAVIT
My name is William Garner. I am now confined as a bed patient at Hillcrest Hospital, Waco, Texas, and will be so confined until February 1, 1974, at which time I will undergo surgery of a lumbar disk and after such surgery will be further confined for an undetermined period of time. On January 28, 1974 I underwent a myelogram and I am unable to appear and testify in the above cause and I am unable to give my testimony by oral deposition. If I were able to appear in the above trial, the facts that I would be able to furnish the Court and the jury would be the same as the facts that I formerly provided the Court and the jury in the previous trial of this cause.

Conner and Fidelity objected to the introduction of the testimony. Fidelity asserted that it had no opportunity to cross-examine Garner on the facts occurring between the first and second trials; that Garner was no longer an employee of Duff; that Garner’s testimony would be different from his prior testimony; and that Garner’s testimony with regard to the expansion of the system was needed. Conner argued that there had been developments since the first trial which necessitated Garner’s present testimony and alleged that it needed the opportunity to cross-examine Garner about the expansion of the system. The court expressly noted that it was considering the evidence adduced at the hearing on Fidelity’s motion and the evidence now presented to it and ruled that the testimony could be read to the jury because Tri-County had established a proper predicate for its introduction into evidence.

The jury thereafter heard testimony from several other witnesses. Members of the Tri-County Board of Directors testified as to their damages and the operator of the system testified about the number of leaks and his efforts at repairing them. The jury also heard testimony from an agricultural engineer with the U. S. Department of Agriculture who testified about the system and its value. Mr. Conner and his sons testified on their own behalf. The case was submitted to the jury on special issues. The jury found that Conner had used materials and workmanship that were not of good quality and that as a result the contract had not been substantially performed; that the promised market value of the water distribution system was $522,480.13; and that the value of the system as constructed was $132,664.28. The damages thus assessed by the jury were in the sum of $389,815.85. Based upon the verdict, the trial court awarded Tri-County $465,098.10, an amount representing the assessed damages plus interest at the rate of six per cent per annum from December 13, 1970. Conner and Fidelity appealed and the Court of Civil Appeals ordered a remittitur of $119,-542.33 but otherwise affirmed the trial court judgment. The Court of Civil Appeals found no error in the admission of Garner’s former testimony. We disagree.

As before indicated, Tri-County did not seek a continuance or recess of the trial because of the illness of Garner but elected instead to offer in evidence the transcription of his testimony at the prior trial. The governing rule has been broadly stated as follows:

“It is the settled law that under an exception to the general rule against hearsay evidence, ‘testimony of a witness given at a former trial of the same case on substantially the same issues, and where there was opportunity for cross-examination, may be reproduced where it is shown that the witness is dead, or that he had become insane, or is physically unable to testify, or is beyond the jurisdiction of the court, or that his whereabouts is unknown and that diligent search has been made to ascertain where he is, or that he has been kept away from the trial by the adverse party.’ ” '

Lone Star Gas Co. v. State, 137 Tex. 279, 308, 153 S.W.2d 681, 697 (1941). See also, Hall v. White, 525 S.W.2d 860 (Tex.1975); White v. Natural Gas Pipeline Co., 444 S.W.2d 298 (Tex.1969); and Houston Fire & Casualty Insurance Co. v. Brittian, 402 S.W.2d 509 (Tex.1966).

The unavailability requirement of the former testimony exception has its roots in English Common Law. When first recognized, the exception allowing the former testimony of a witness was granted only when it was shown that the witness had died before the second trial. See, e. g., Harrison v. Blades, 3 Camp. 457 (K.B.1813). Later the courts recognized certain specific types of absences as the equivalents of death and allowed the introduction of the former testimony upon a factually sufficient showing of true unavailability. Principal among the recognized and accepted types of unavailability were cases in which the witness was shown to be beyond the jurisdiction of the court and cases in which the witness was secreting himself from the parties and the court. R. Gresley, Equity Evidence 173-76 (2d Ed. C. Calvert 1848); 1 S. Greenleaf, The Law of Evidence, § 163g at 284-85 (16th Ed. J. Wigmore, 1889). The English courts were long reluctant to equate illness or infirmity with death and long refused to allow former testimony to be used in such circumstances. The courts feared that to allow the exception in cases of illness “might cause sudden indispositions and recoveries.” Harrison v. Blades, supra. The rule of unavailability due to illness did come to be accepted by the English courts in time, however. Fry v. Wood, 26 Eng.Rep. 284 (1737).

The law concerning the unavailability requirement of the former testimony exception has developed in much the same manner in American jurisdictions. Death of a witness, of course, was and is universally recognized as a ground for the introduction of his former testimony. 5 J. Wigmore, Evidence § 1403 at 204 (J. Chadbourne rev. 1974). In the case of a witness who is outside the jurisdiction of the court, a majority of the states hold that the necessary predicate to the introduction of his prior testimony is shown by proof of (1) permanent absence from the jurisdiction and (2) due diligence in attempting to secure the presence of the witness. See, e. g., Oklahoma Alcoholic Beverage Comm. v. Lobo, 391 P.2d 819 (Okl.1964); Smith v. State, 247 So.2d 705 (Miss.1970); Matter of D. T., 237 N.W.2d 166 (S.D.1975). See also, Wigmore, supra, n. 5 at 205-09; Annot. 87 A.L.R. 891 (1940); Comment, The Unavailability Requirement For Exceptions To The Hearsay Rule, 41 Mo.L.Rev. 404 (1976). The same predicates are required by the majority of jurisdictions with respect to a witness whose whereabouts are allegedly unknown. See, e. g., New York Central R. Co. v. Pinnell, 112 Ind.App. 116, 40 N.E.2d 988 (1942); Madrid v. Scholes, 89 N.M. 15, 546 P.2d 863 (N.M.Ct.App.1976). See also, Wigmore, supra, n. 1 at 216-18; Comment; The Unavailability Requirement For Exceptions To The Hearsay Rule, 41 Mo.L.Rev. 404 (1976). When a witness is unavailable by reason of illness, however, the rules of the various jurisdictions that govern the predicate necessary for the admission of his prior testimony are not uniform.

In some early cases no distinctions were made between the witness who was absent from the jurisdiction, or whose whereabouts were unknown, and the witness who was ill. These cases required a showing of permanent illness in order to prove unavailability. See, e. g., Markowitz v. Milwaukee Elec. R.R. Co., 230 Wis. 312, 284 N.W. 31 (1939); Kirchner v. Laughlin, 5 N.M. 365, 23 P. 175 (1890). Most of these decisions have been disavowed or have been overruled by statute. See, e. g., State v. McFarren, 62 Wis.2d 492, 215 N.W.2d 459 (1974); In re Sweeney’s Estate, 248 Wis. 607, 22 N.W.2d 657 (1940); Madrid v. Scholes, 89 N.M. 15, 546 P.2d 863 (N.M.Ct.App.1976); N.M.Rule 4-804(a)(4) (1953). See, also, Wigmore, supra, § 1406. A more liberal view of admissibility is found in the later cases. A majority of states now admit the prior testimony of a sick witness who is temporarily but genuinely ill. See cases compiled in Wig-more, supra, n.l at 219. The facts necessary to establish the predicate for admission of such .testimony are not easily generalized. Some states seem to focus on the seriousness of the illness while others inquire more heavily into its continuing nature. Compare, Sproul v. Fossi, 548 P.2d 970 (Or.1977) with Norburn v. Mackie, 264 N.C. 479, 141 S.E.2d 877 (1965) and Perkins v. Edwards, 228 Ga. 470, 186 S.E.2d 109 (1971). Professor Wigmore, after compiling the cases, concluded that the better rule requires a twofold showing of the degree and duration of the illness rendering the witness unavailable to testify during the anticipated duration of the trial. Wigmore, supra, at 219-20.

The law in Texas concerning the unavailability requirement of the former testimony exception to the hearsay rule has developed in much the same manner as that of our sister states. In the context of a witness absent from the state we have said that the critical question is his unavailability; and we ruled that a witness temporarily absent from the state on a vacation trip at the time of the second trial had not been shown to be unavailable. Hall v. White, supra. See also White v. Natural Gas Pipeline Co., supra, to the same effect with respect to the claimed unavailability of a witness as beyond the jurisdiction of the court. In Houston Fire & Casualty Insurance Co. v. Brittian, supra, the medical witness resided in an adjoining county and at the time of the second trial was unavailable because he was performing emergency surgery. We noted that none of the established conditions supporting the prior testimony exception to the hearsay rule were claimed to exist and that a proper predicate had not been laid.

As before indicated, we have not had occasion to write directly upon the question of the admissibility of the prior testimony of a witness shown to be unavailable for personal testimony at a second trial because of temporary illness, whether physical or mental. We refused writ of error with the notation of no reversible error in Harris v. Reeves, 421 S.W.2d 689 (Tex.Civ.App.1967, writ ref’d n. r. e.), in which the Court of Civil Appeals held:

Testimony of an absent witness on another trial of the same case was admitted over defendant’s objection that no proper predicate had been laid for its admission. The evidence was that the witness was unable to attend the trial because she was ill with bronchial pneumonia and was taking medication for the illness. The witness was cross-examined on the former trial. The issues were substantially the same. Under these circumstances the testimony was admissible as against the objection.

We note, however, that there was no point complaining of this holding in the application for writ of error in Harris, and the issue was therefore not before the court. Illustrations of differences in approach to the problem are found in Missouri, Kan. & Tex. Ry. Co. v. Bush, 310 S.W.2d 404 (Tex.Civ.App., 1958, writ ref'd n. r. e.).

The proponent of the testimony of a witness who testified at a prior trial, but who is unable to do so at a subsequent trial because of a temporary illness, has two alternatives: that of moving for a continuance or recess of the trial until the witness recovers from the disability and becomes available for personal or deposition testimony; or that of offering the prior testimony of the witness as an exception to the hearsay rule. The ruling in each instance is addressed to the discretion of the trial court. The proponent of the prior testimony is under the burden of showing the degree and duration of the illness of the witness and that he has exercised due diligence. There may be circumstances where the party opposing the admission of the prior testimony is also under a burden of showing diligence. Neither is the case where, as here, it was shown that the illness of the witness was genuine; that it occurred on the eve of trial to the surprise of the parties; and that the illness of the witness was such as to preclude his being deposed.

Absent a question of diligence, the problem becomes one of fairness to the respective parties, together with the orderly and expeditious administration of justice, under the facts and circumstances shown to the trial court. In our opinion, those shown here establish that the trial court erred in admitting the prior testimony of Garner.

The facts and circumstances before the court when the testimony was offered demonstrated that Conner and Fidelity would be prejudiced by the admission of the testimony. James Duff in his previous testimony had made frequent references to Garner by name. He had testified that Garner supervised and inspected the construction of the new and the old systems; that the new system was different; that the bulk of his knowledge came from Garner’s reports; that Garner had left his employ; that Garner had written a letter to Conner; that Garner had been specifically requested to be the inspector of the construction by Conner; that Garner had worked with the plant operator in repairing the leaks; and that Garner had assisted in testing the expansion project. These facts were supplemented by the representations of counsel for Conner and Fidelity that Garner had stated that his testimony at the time of the second trial would be less favorable to Tri-County than before. Tri-County challenged this representation and the dispute thus arising could only be settled by the personal testimony of Garner at the second trial. It was also shown to the court that there had been a change in circumstances between the first and second trials; an example of which was the expansion of the system.

Essentially these same considerations compel the further holding that the error of the trial court was such a denial of the rights of Conner and Fidelity as was reasonably calculated to cause and did cause the rendition of an improper judgment. See Rule 503, Texas Rules of Civil Procedure.

As to this, it is particularly to be noted that although the testimony of other witnesses concerning the value of the pipeline may be said to be of the same general effect as that of Garner, none had his firsthand inspection knowledge and responsibility. For example, the witness James Duff, owner of the firm of Duff Engineers, the engineering consultants for the construction of the pipeline, testified that Garner was his inspector and reported to him. Necessarily, Duff’s testimony as to value was based in major part on these reports. Other witnesses who testified as to the value of the system were Leon Afinowicz and Kay Juan. Afinowicz was the plant superintendent for the City of Marlin. His responsibility was to keep the system operating. In speaking of pipe samples that he cut out of the line he expressed the opinion that they were improperly put together; that he found some bad materials; and that the quality of the workmanship was not good. The witness Juan was an agricultural engineer for the U.S. Department of Agriculture. His responsibility was to determine in the early operations whether the facility was performing as anticipated in the design. He testified that he had examined leaky pipe specimens and that the joints were not of good quality workmanship. He said that the joining of the pipes was improperly made and that a majority of the material did not meet the minimum acceptable wall thickness; and that three-fourths of the pipe examined did not meet the specifications. Garner was thus the only witness whose testimony was based on repeated and actual inspections of the pipeline during construction and as such his prior testimony undoubtedly carried significant weight with the jury. Moreover, as we have noted, there was considerable dispute as to whether the testimony of Garner would be less favorable to Tri-County at the second trial than before. Cf. Houston Fire & Casualty Co. v. Brittian, 402 S.W.2d 509 (Tex.1966).

We agree with the rulings of the Court of Civil Appeals in other respects brought forward, a further discussion of which is not necessary.

The Motion for Rehearing is overruled. The judgments of the courts below are reversed and the cause is remanded to the trial court.

Dissenting opinion by McGEE, J., joined by GREENHILL, C. J.

McGEE, Justice,

dissenting.

I respectfully dissent.

At issue in this case is the former testimony exception to the hearsay rule. In order for the testimony given by a witness at a former trial to be admissible at a subsequent trial between the same parties, it is necessary to show that the former trial was on substantially the same issues, that there was an adequate opportunity for cross examination, and that the witness at the time of the subsequent trial was unavailable to testify. White v. Natural Gas Pipeline Co., 444 S.W.2d 298 (Tex.1969). The principal problem, as in this case, usually concerns satisfaction of the unavailability requirement. It has often been stated that this requirement is met when, among other things, it is shown that the witness is physically unable to testify. See Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681 (1941); Houston Fire & Casualty Co. v. Brittian, 402 S.W.2d 509 (Tex.1966). Illness would certainly come within this category. I do not take issue with the majority’s statement that the proponent of the prior testimony has the burden of showing the degree and duration of the illness of the witness and that he has exercised due diligence. Such a rule will assist the trial courts in obtaining the best evidence necessary to resolve the issues before them.

I strongly disagree, however, with the holding of the majority that the trial court erred in admitting the prior testimony of Garner. I think that Tri-County .satisfied the rule as stated above and laid a sufficient predicate to allow the admission of Garner’s prior testimony. The majority opinion admits as much, but then states that the problem then becomes one of fairness to the respective parties, together with judicial efficiency, under the facts and circumstances shown to the trial court. Much reliance is placed upon the representations of Conner’s counsel that Garner had indicated that his testimony at the time of the second trial would be less favorable to TriCounty than before because Garner would now testify that the pipeline had “some value.” Based on this representation, this Court has concluded that Conner and Fidelity would be prejudiced by the admission of the former testimony. The majority, in effect, has held that the trial court abused its discretion in admitting the prior testimony of Garner. My view of the facts and circumstances before the trial court does not lead me to the result reached by the majority.

Mr. Garner was an impartial witness in this case. He was not an employee for either of the parties to the suit. His testimony covered many phases of the construction and inspection of the water system. His testimony was most important, however, with regard to the market value of the pipeline. He clearly stated at the first trial that to put the pipeline in proper condition would require the complete replacement of the pipe, that it could not be salvaged, and, therefore, the pipeline had no market value.

The pertinent facts reveal that on January 20th, counsel for Tri-County personally conferred with Garner. Garner indicated by his answers to counsel’s questions that his testimony would be the same as that given at the first trial, including his opinion that the pipeline had “no value.” Counsel for Conner, on the other hand, stated that during a telephone call to Garner at the hospital on January 25th, Garner informed him that he would not give the same testimony at the second trial as he had at the first trial; that he would now testify that the pipeline had “some value.” Without more, admission of the prior testimony based on these two conflicting statements might constitute an abuse of the trial court’s discretion. However, other evidence was before the trial court which indicated that Garner’s testimony would not be any different from that given at the first trial. On January 26th, counsel for Tri-County visited Garner in the hospital, at which time Garner stated his unavailability for trial and inability to be deposed. When informed that his prior testimony would be transcribed, he responded by saying that he thought it would be a good idea because his testimony would be the same. Finally, in support of its offer of the former testimony of Garner into evidence, Tri-County offered a sworn statement by Garner, dated January 29th, which in pertinent part stated:

“If I were able to appear in the above trial, the facts that I would be able to furnish the Court and the jury would be the same as the facts that I formerly provided the Court and the jury in the previous trial of this cause.”

I think that it is clearly indicated by the affidavit and the conversations of January 20th and 26th that Garner’s answers would have been the same as those given at the first trial, including the fact that he believed that the pipeline had “no value.” Therefore, the testimony of Garner would not be less favorable to Tri-County as asserted by counsel for Conner. Given the opportunity to adequately cross-examine Garner at the first trial, I fail to see how Conner and Fidelity were prejudiced by the admission of the former testimony. Under the circumstances, I find no error that would call for a reversal and remand of this cause for a third trial.

I would affirm the judgment of the court of civil appeals.

GREENHILL, C. J., joins in this dissent.


source: Caselaw Access Project

author: SAM D. JOHNSON, Justice.

license: Public Domain

text:
    SELECT INSURANCE COMPANY, Petitioner, v. Thomas Earl BOUCHER, Respondent.
    No. B-6767.
    Supreme Court of Texas.
    Feb. 8, 1978.

      Mike Phillips, Robert G. Taylor, II, and Susan E. Crowley, Houston, for petitioner.
    Gerald H. Buttrill, Miller, Gann & Per-due, Houston, for respondent.
   SAM D. JOHNSON, Justice.

This case presents the question of proper submission to the jury of a workmen’s compensation cause of action under Rules 277 and 279 of the Texas Rules of Civil Procedure. Thomas Boucher sought workmen’s compensation solely under the theory of total incapacity. Select Insurance Company pleaded partial incapacity as a defense. The trial court submitted only the issues concerning total incapacity and refused to submit issues or the tendered instructions on partial incapacity. Based upon jury answers to special issues, the trial court awarded Boucher compensation for six and three-quarters years of total incapacity. Select appealed, alleging error in the trial court’s failure to submit issues or the tendered instructions on partial incapacity. The trial court judgment was affirmed by the court of civil appeals. 551 S.W.2d 67. We affirm the judgment of the court of civil appeals.

While working for New Process Steel Corporation, Thomas Earl Boucher was struck in the back by a hook from a twenty-ton crane. After several consultations with various doctors, he was hospitalized for psychiatric evaluation which revealed he was suffering from “gross stress reaction manifested by psychotic decompensation.” In the trial court Boucher pleaded and sought recovery on the theory that he was totally and permanently disabled. Boucher did not seek recovery for partial incapacity. Select Insurance Company pleaded and defended on the theory of partial incapacity. Select asserted that the injuries suffered by Boucher, if any, resulted in partial disability for only a short period of time and that Boucher’s earning capacity after the accident was as much or more per week as it had been before the date of the alleged injury so that there was no reduction or decrease in his wage earning capacity. Select tendered issues under its defense of partial incapacity which the court refused to submit. Select also tendered an instruction defining the term “partial incapacity” which the court likewise refused to submit. The jury found that Boucher’s injury was the producing cause of his total incapacity. The jury further found that the total incapacity was temporary, lasting for six and three-quarters years. Based upon such jury findings, the trial court awarded Boucher workmen’s compensation for six and three-fourths years of total incapacity. This judgment was affirmed by the court of civil appeals.

The court of civil appeals reasoned that Rule 277 prohibits the submission of inferential rebuttal issues, but allows the submission of such explanatory instructions or definitions as shall be proper to enable the jury to reach a verdict. The court of civil appeals, therefore, held that the trial court was correct in refusing to submit the issues on partial incapacity in that such were inferential rebuttal issues. Furthermore, the court of civil appeals determined that under Rule 279 Select Insurance Company had the burden of tendering an instruction in substantially correct form. The court of civil appeals held that Select failed to tender such an instruction in substantially correct form; therefore, the trial court’s failure to submit the instruction was not reversible error.

Select Insurance Company appeals the judgment of the court of civil appeals on two grounds. The first ground challenges the court of civil appeals’ determination that the tendered issue on partial incapacity is an inferential rebuttal issue. The second ground questions the court of civil appeals’ finding of no reversible error in the trial court’s failure to submit the definition of “partial incapacity” tendered by Select Insurance Company.

The trial court submitted special issues to the jury which presented the issue of total incapacity and required a determination of whether the total incapacity, if any, was temporary or permanent. Boucher did not request instructions on partial incapacity. However, Select Insurance Company did request the following special issues raising the question of partial incapacity:

“2. Was the injury a producing cause of any partial incapacity? (An- . swer by stating ‘yes’ or ‘no’).
If it was, then answer Nos. 2A, 2B and 2C below:
“2A. Find the beginning date of partial incapacity. (Answer by stating the month, day and year).
“2B. Find the duration of partial incapacity. (Answer by stating ‘Permanent’ or by stating ending date).”
[The record before this court does not reflect the substance of issue 2C, if any such issue was tendered by Select.]

The court of civil appeals held that the issues tendered by Select were inferential rebuttal issues and that their submission was prohibited by Rule 277. Specifically, the court of civil appeals relied upon that portion of Rule 277 which provides: “Inferential rebuttal issues shall not be submitted.” Select Insurance Company argues that the issues should have been submitted as they constituted an independent defense which was raised by the evidence and they were not inferential rebuttal issues. Select Insurance Company argues that the wording of Rule 277 clearly demonstrates partial incapacity issues are not considered inferential rebuttal issues, relying upon that portion of the Rule which provides:

“The court may submit an issue disjunc-tively where it is apparent from the evidence that one or the other of the conditions or facts inquired about necessarily exists. For example, the court may, in a workmen’s compensation case, submit in one question whether the injured employee was permanently or only temporarily disabled.”

The quoted language was retained in Rule 277 when it was amended in 1973. Such provision, however, is not persuasive or controlling in the instant case. Circumstances triggering the usage of disjunctive issues are distinguishable from those circumstances which create inferential rebuttal issues. The submission of disjunctive issues is appropriate where two alternate grounds of recovery are developed through the pleadings and the submitted issues. Under certain circumstances, issues on partial and total incapacity may be submitted in one disjunctive issue where potential recovery under either theory is developed by the other special issues submitted. Under other circumstances, as in the instant case, issues on partial incapacity may be only defensive and constitute inferential rebuttal issues which are prohibited by Rule 277.

In the case at bar the trial court was not presented with two alternate grounds of recovery. The only ground of recovery was presented by the plaintiff Boucher, and that ground was total incapacity. Further, Boucher tendered no issues except those pertaining to total incapacity. On the other hand, it was the defendant Select Insurance Company which tendered the quoted issues on partial incapacity. These tendered issues on partial incapacity were not disjunctive issues; these issues, as requested, constituted a defense and did not develop an alternate ground of recovery.

An inferential rebuttal issue is one which seeks to disprove the existence of an essential element submitted in another issue. Wirtz v. Orr, 533 S.W.2d 468 (Tex.Civ.App.—Eastland 1976, writ ref’d n. r. e.). Inferential rebuttal issues have been variously referred to as denial issues or argumentative denials rather than direct negatives. Scott v. The Atchison, Topeka and Santa Fe Railway Company (Tex.1978). The reasoning behind such labels is that “they disprove by establishing the truth of a positive factual theory which is inconsistent with the existence of some factual element of the ground of recovery or defense relied upon by the opponent, and are therefore to be distinguished from a flat denial . . . Hodges, Special Issue Submission in Texas, Section 15, at 40. The basic characteristic of an inferential rebuttal is that it presents a contrary or inconsistent theory from the claim relied upon for recovery. Partial incapacity has repeatedly been viewed as an inconsistent or contrary theory to a claim of total incapacity. In Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S.W.2d 314 (1939), the court stated:

“It is true that a finding of total incapacity excludes the converse of partial incapacity, and vice versa. In that sense converse issues are involved. The issues submitting the two inquiries as to the result of the injuries, — one whether total and the other whether partial, — are converse, but not opposite.” 123 S.W.2d 314 at 317.

Similarly, in Commercial Standard Ins. Co. v. Brock, 167 S.W.2d 281 (Tex.Civ.App.—Amarillo 1942, writ ref’d w. o. m.), the court noted the distinct relationship between total and partial incapacity:

“[A] claimant ‘in order to recover for total disability must prove by preponderance of the evidence that his disability is not merely partial.’ Southern Underwriters et al. v. Boswell, 138 Tex. 255, 158 S.W.2d 280, 282. . . . [T]he finding of total incapacity necessarily required the appellee to prove by a preponderance of the evidence that his disability was not merely partial . . . .” 167 S.W.2d 281 at 287.

Under the_ circumstances of the instant case, the issues relating to partial incapacity were inferential rebuttal issues which are prohibited by Rule 277. Scott v. The Atchison, Topeka and Santa Fe Railway Company, supra.

Alternatively, Select Insurance Company argues that even should this court determine that partial incapacity is an inferential rebuttal issue, the Insurance Company was entitled to its tendered definition of “partial incapacity” and that such definition was in substantially correct form. The definition tendered was as follows:

‘“PARTIAL INCAPACITY’ means any degree of incapacity less than total incapacity; or, whereby a person suffers a reduction in earning capacity. A person cannot have both total and partial incapacity at the same time.”

Rule 279 provides in part:

“Failure to submit a definition or explanatory instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or explanatory instruction has been requested in writing and tendered by the party complaining of the judgment.”

The court of civil appeals upheld the trial court’s rejection of the definition of “partial incapacity” tendered by Select Insurance Company because the definition was not substantially correct, and under Rule 279 no ground for reversal of the trial court judgment was presented. The court of civil appeals reasoned the definition was not substantially correct in that: (1) the insertion of the word “or” in the definition rendered it confusing; and (2) the definition further failed to define the term “earning capacity.”

Select Insurance Company contends it tendered a definition defining “partial incapacity” which was substantially correct and that similar disjunctive language has been used in defining “partial incapacity” in Indemnity Insurance Co. of North America v. Craik, 162 Tex. 260, 346 S.W.2d 830 (1961), and Southern Underwriters v. Schoolcraft, 138 Tex. 323, 158 S.W.2d 991 (1942). Furthermore, Select argues that no recovery was sought under the theory of partial incapacity so it was not necessary for the term “earning capacity” to be defined.

The instruction tendered by Select Insurance Company would allow a finding of partial incapacity under either one of two theories: (1) a finding of a degree of incapacity less than total; or (2) a finding of a reduction in earning capacity. Neither theory of partial incapacity, in the form in which it was requested, properly conveys the intent of the Workmen’s Compensation Act. More importantly, neither theory, standing alone, presents a proper basis for recovery. Select is correct in its argument that a definition in disjunctive form was utilized to define “partial incapacity” in both of the cases cited, as well as in the Texas Pattern Jury Charges. However, these definitions of “partial incapacity” do not create the two theories of recovery which are presented by the definition tendered by Select Insurance Company.

The definition of “partial incapacity” used in the Texas Pattern Jury Charges employs conjunctive language in enunciating the elements of partial incapacity which require (1) an injury or incapacity less than total and (2) a reduction in earning capacity. The disjunctive language contained in the definition relates specifically to alternate circumstances which result in loss of earning capacity; i. e., (1) the fact that a party can only perform part of his usual tasks or (2) the fact that a party can now perform labor of a less remunerative class. The Texas Pattern Jury Charges defines “partial incapacity” in Section 22.02 as follows:

“Partial incapacity is any degree of incapacity less than total incapacity, and means that a person’s earning capacity is reduced because he can perform only part of the usual task of a workman or can only do lower paying work than he could do before his injury, but can get and keep employment suitable to his condition.” 2 State Bar of Texas, Texas Pattern Jury Charges (1970). [Emphasis added.]

Consequently, under the quoted definition, a party may secure a finding of partial incapacity when there is or has been both a degree of incapacity less than total and a reduction in earning capacity. On the other hand, the definition as tendered by Select would reduce the burden of proof for the party pleading partial incapacity, requiring the party only to prove one of these two essential elements to support a finding of partial incapacity. This court specifically approves the definition of “partial incapacity” as drafted in the Texas Pattern Jury Charges and holds that it comports with the intent of the Workmen’s Compensation Act. Therefore, the disjunctive wording of the definition as tendered by Select was inaccurate. Accordingly, the court of civil appeals was correct in holding that the definition was not substantially correct and should not have been submitted to the jury.

In addition, the court of civil appeals held that the tendered instruction was insufficient since it did not define the term “earning capacity.” Select Insurance Company argues that it was not necessary to define the term as recovery under a theory of partial incapacity was not affirmatively sought. Furthermore, Select argues that the courts have upheld instructions defining “partial incapacity” as a reduction in earning capacity where there was no additional definition of “earning capacity.” Employers’ Liability Assur. Corporation v. Young, 203 S.W.2d 822 (Tex.Civ.App.—Amarillo), per curiam, 146 Tex. 168, 204 S.W.2d 833 (1947); Southern Underwriters v. Schoolcraft, supra. The cases relied upon by Select predate the 1957 amendment to the Workmen’s Compensation Act. Prior to 1957 the majority of the courts were determining partial incapacity on a percentage or degree basis. Consequently, recovery for partial incapacity was computed as the percentage of disability times the average weekly wages before the injury. Wallenstein, A Special Issue Quandary — Submitting “Partial Incapacity" in Workmen’s Compensation, 21 Sw.L.J. 513, 520-21 (1967). In 1957 the Workmen’s Compensation Act was amended, emphasizing that partial incapacity was to be measured solely on the basis of reduction of earning capacity, not by percentage of disability. Accordingly, the meaning of the term “earning capacity” became and is central to a finding of partial incapacity. The term “earning capacity” has a somewhat technical meaning and is easily confused to mean actual wages earned. Therefore, an understanding of the meaning of “earning capacity” is essential to the proper determination of partial incapacity.

Select argues that in Young and Southern Underwriters the courts upheld instructions defining “partial incapacity” without defining “earning capacity.” Neither of these decisions specifically state that the term “earning capacity” was not defined. In addition, the definition of “partial incapacity” used in these cases conveyed the meaning of “earning capacity” by implication through additional wording in the definition. Similarly, the Texas Pattern Jury Charges, supra, uses the term “earning capacity,” but places it in an interpretive context:

“[A] person’s earning capacity is reduced because he can perform only part of the usual task of a workman or can only do lower paying work than he could do before his injury, . . . ”

The definition of “partial incapacity” as tendered by Select used the term “earning capacity.” The term was not further defined or placed in an explanative context. Accordingly, the instruction as submitted did not provide guidance to the jury which would enable it to reach a proper verdict. Therefore, the court of civil appeals was correct in holding that Select’s failure to include a definition of “earning capacity” in its requested instruction on partial incapacity resulted in the tendering of an instruction which failed to meet the standards of substantially correct submission.

We hold, under the posture of the instant case, that the defensive issue of partial incapacity is an inferential rebuttal issue and that by virtue of Rule 277 Select Insurance Company was not entitled to its submission. Select Insurance Company would have been entitled to the submission of a definition of “partial incapacity” if one in substantially correct form had been requested. We hold that no definition of “partial incapacity” in substantially correct form was tendered to the court. Accordingly, we affirm the judgment of the court of civil appeals.

McGEE, J., notes his dissent.

      . This court is aware that House Bill 455 as amended was enacted by the 65th Legislature. In Section 1 the Bill provides that “[t]he term ‘workmen’s compensation’ shall hereafter be known as ‘workers’ compensation,’ . . .” However, as the Bill became effective in August 1977, subsequent to rendition of the lower court decisions in the instant case, the use of such terminology herein would be inappropriate.


author: ROBERTS, Judge.

text:
    Ricky D. RAY, Appellant, v. The STATE of Texas, Appellee.
    No. 51567.
    Court of Criminal Appeals of Texas.
    Oct. 5, 1977.
    Frank Coffey and Ward Casey, Fort Worth, for appellant.
    Tim C. Curry, Dist. Atty., and Marvin Collins, Asst. Dist. Atty., Fort Worth, Jim D. Vollers, State’s Atty., David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for murder. After finding appellant guilty, the jury assessed punishment at thirty years.

The record reflects that on September 9, 1974, Frank Stone and a fifteen-year-old female schoolmate went to the appellant’s apartment. The apartment door flew open when they knocked, and they went in. Shortly thereafter, the appellant arrived at the apartment, left briefly, and then re-entered the apartment.

After talking with the appellant in an adjoining bedroom, Stone and his companion went into the living room of the apartment and lay on a mattress on the floor. In a few moments the appellant walked into the living room, stabbed Stone in the back, and began choking him. The appellant then took the young woman into the bedroom and forcibly raped her. Stone died as a result of the stab wound.

Appellant’s sole ground of error is that the trial court erred in failing to hold a hearing on his motion to quash the indictment. Appellant’s motion, timely filed, alleged that unauthorized persons representing the State were present with the grand jury during its deliberations, in violation of Arts. 20.02, 20.03, 27.03, Vernon’s Ann.C. C.P. In accord with Art. 27.04, V.A.C. C.P., and the holding in Rothschild v. State, 7 Tex.App. 519 (1880), appellant requested a hearing on his motion. The trial court denied this request.

After this case was submitted to this Court we determined that the motion should have been granted but that a hearing could yet be had on appellant’s motion. Accordingly, we held the appeal in abeyance to allow the trial court to hold such a hearing. The hearing has now been held, and the record of that hearing is before us. The appeal is reinstated.

Appellant has alleged no additional grounds of error since the hearing, nor has he complained of any of the rulings made by the trial court at that hearing. More important, by ordering that the hearing be held, this Court has provided appellant with the specific relief urged by his single ground of error. However, we construe appellant’s contention broadly as a complaint that unauthorized persons representing the State were present during the deliberations of the grand jury. We shall review this contention in the light of the record made at the hearing on appellant’s motion. See Rothschild v. State, supra; Minton v. State, 468 S.W.2d 426 (Tex.Cr.App.1971). We conclude that appellant’s contention should be overruled. We affirm.

It is well settled that when the evidence shows that unauthorized persons were present during the deliberations of the grand jury the indictment must be invalidated and a new trial ordered. Arts. 20.02, 20.03, 27.03, supra; Rothschild v. State, supra; Stuart v. State, 35 Tex.Cr.R. 440, 34 S.W. 118 (1896). However, “the burden rests upon appellant to bring himself within the statute, and to show a violation of same, before an indictment will be set aside and the defendant discharged.” Moody v. State, 57 Tex.Cr.R. 76, 79, 121 S.W. 1117, 1118 (1909).

At the hearing on the motion to quash the indictment, the appellant called three witnesses: the clerk of the grand jury; appellant’s trial counsel; and the attorney who was, at the time of appellant’s indictment, chief prosecutor before the grand jury. The State called as its only witness the foreman of this particular grand jury.

At no time did any of these witnesses testify that any unauthorized person sat with the grand jury during the time it deliberated or voted on the indictments before it. In fact, the chief prosecutor testified unequivocally that no witness or prosecutor was ever present during the voting or deliberations of the grand jury which indicted this appellant. Similarly, the foreman stated that only the grand jurors stayed in the jury room during the grand jury’s deliberations.

It follows that the appellant has failed to meet his burden of showing that the sanctity of the grand jury was violated. Moody v. State, supra. Accordingly, appellant’s contention is overruled.

The judgment is affirmed.

      . Art. 20.02 provides in part as follows:
      “The deliberations of the grand jury shall be secret. ...”
      Art. 20.03 provides:
      “ ‘The attorney representing the State’ means the Attorney General, district attorney, criminal district attorney, or county attorney. The attorney representing the State, is entitled to go before the grand jury and inform them of offenses liable to indictment at any time except when they are discussing the propriety of finding an indictment or voting upon the same.” Art. 27.03 provides in part as follows:
      “In addition to any other grounds authorized by law, a motion to set aside an indictment or information may be based on the following:
      “2. That some person not authorized by law was present when the grand jury was deliberating upon the accusation against the defendant, or was voting upon the same;
      However, Art. 20.05, V.A.C.C.P., provides:
      “The grand jury may send for the State’s attorney and ask his advice upon any matter of law or upon any question arising respecting the proper discharge of their duties.”

      . Art. 27.04 provides:
      “An issue of fact arising upon a motion to set aside an indictment or information shall be tried by the judge without a jury.”


author: TOM G. DAVIS, Commissioner.

text:
    Ex parte Frank SUPERCINSKI.
    No. 55496.
    Court of Criminal Appeals of Texas.
    Oct. 11, 1977.
    Lynn S. Patton, Longview, for appellant.

      A. D. Clark, III, Dist. Atty. and William D. Saban, Asst. Criminal Dist. Atty., Tyler, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

TOM G. DAVIS, Commissioner.

This is an original habeas corpus action. Relator is an attorney practicing law in Longview. The Honorable Donald Carroll, Judge of the 7th Judicial District Court of Smith County, found relator in contempt on October 27,1976, for refusing to proceed to trial in the case of The State of Texas v. Derrick Jerome Conrad. Relator’s punishment was assessed at ninety days confinement in the Smith County Jail and a fine of $500.00. Under the authority of Art. 1911a(2)(c), V.A.T.S., the relator had an independent determination of his guilt or innocence made by a judge other than the one making the original decision. This hearing was held before the Honorable Tate McCain on June 3, 1977. Judge McCain orally found “that the conduct of the Respondent, Frank L. Supercinski, . . . was, in fact, contumacious” and further stated, “Before I leave today, I will expect to order the issuance of that commitment.” Judge McCain made a similar entry on the docket sheet and concluded same, “Clerk directed to issue commitment.” We have searched the record and same is devoid of a written commitment, nor do we find any indication that a written commitment was ever issued.

The State urges that the case is not properly before this Court. Relator seeks relief both as an original application for a writ of habeas corpus and as an appeal. The State accurately points out that there is no right to an appeal from an order of contempt. Arnold v. State, Tex.Cr.App., 493 S.W.2d 801; Gardner v. State, 171 Tex. Cr.R. 521, 352 S.W.2d 129.

Relator relies on Ex parte Howell, Tex.Cr.App., 488 S.W.2d 123, for authority that an appeal can be taken from a contempt order. The opening sentence of the opinion in Howell states: “This is an appeal from two contempt certificates . . . .” No further mention is made of the issue in the opinion. In footnote # 2 in Ex parte Waters, Tex.Cr.App., 499 S.W.2d 309, 310, this Court points out that Howell was in error in this respect as “the action involved an original application for habeas corpus.”

We will entertain this case as an original application for a writ of habeas corpus. As noted in Waters, “The original jurisdiction of the Court of Criminal Appeals to issue writs of habeas corpus is unlimited.” Article V, Sec. 5, Vernon’s Annotated Texas Constitution; State ex rel. Wilson v. Briggs, 171 Tex.Cr.R. 479, 351 S.W.2d 892.

Relator challenges the fact that there is no written order of commitment in this case. As heretofore noted, a search of the record reveals only the judge’s oral order and his written notes on the docket sheet as authority for the restraint of the petitioner.

It is well established that no one may be restrained for contempt without a written order of commitment. Ex parte Christofferson, 171 Tex.Cr.R. 68, 345 S.W.2d 410; Ex parte Martinez, 160 Tex. 328, 331 S.W.2d 209; Ex parte Puckitt, 159 Tex. 438, 332 S.W.2d 597; Ex parte Arapis, 157 Tex. 627, 306 S.W.2d 884; Ex parte Smart, 152 Tex. 229, 256 S.W.2d 398; Ex parte Palmateer, 150 Tex. 510, 243 S.W.2d 160; Ex parte Eager, 128 Tex.Cr.R. 97, 79 S.W.2d 136; Ex parte Ray, 101 Tex.Cr.R. 432, 276 S.W. 709; Ex parte Alderete, 83 Tex.Cr.R. 358, 203 S.W. 763; Ex parte Hardin, 161 Tex. 567, 344 S.W.2d 152; Ex parte Baize, 453 S.W.2d 185 (Tex.Civ.App.—Eastland, no writ).

The State argues that no written order is needed in this case in that this is direct rather than constructive contempt. Direct contempts are those where the acts occur in the presence of the court and the court knows of all of the facts which constitute the contempt. Constructive contempts relate to acts which require testimony to establish their existence. See Ex parte Arnold, Tex.Cr.App., 503 S.W.2d 529. The State contends that a written order is only necessary in cases of constructive contempt.

The distinction urged by the State is not supported by the cases. In Ex parte Christofferson, supra, the relators appeared in the Criminal District Court of Jefferson County, with the grand jury present, and refused to answer questions. The court then found them in contempt and orally ordered relators taken to jail. This was clearly direct contempt since all of the acts constituting same took place in the presence of the court. This Court held in Christof-ferson that a written order of commitment was necessary and relators were ordered discharged.

The foregoing cases of this Court and the Supreme Court of Texas dictate that, absent a written order of commitment, relator is unlawfully restrained of his liberty. Relator is ordered discharged.

Opinion approved by the Court.


author: TOM G. DAVIS, Judge.

text:
    James David BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 53932.
    Court of Criminal Appeals of Texas. Panel No. 1.
    Feb. 1, 1978.
    Rehearing en banc Denied March 1, 1978.

      Cletus C. Schenk, Wichita Falls, for appellant.
    Timothy D. Eyssen, Dist. Atty., Wichita Falls, Austin, for the State.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for capital murder. The jury returned a “No” answer to the question required by Art. 37.071(b)(2), V.A.C.C.P., concerning the probability that appellant would commit future criminal acts of violence that would constitute a continuing threat to society. Appellant’s punishment was automatically assessed at life. Since appellant contends that the evidence is insufficient to support the conviction, a detailed recitation of the facts is necessary.

The record reflects that the appellant, a police officer in Wichita Falls, made arrangements to have his wife killed in return for the payment of $400. Zelma Lee Strader, the manager of a convenience store appellant often frequented, testified that appellant requested that she find a “hit man to get rid of his wife.” Strader in turn contacted a man named Harley Zinn Main about the matter. Main then contacted two individuals named Mark Douglas Fields and Gene Edwin Gameson, who eventually committed the murder.

Appellant and his wife Linda had been separated for several months before the murder, and divorce petitions had been filed. The deceased continued to live in their home with their two young daughters, while the appellant moved in with his parents. The deceased’s body was discovered by a neighbor on the morning of April 19, 1975. The body was lying just inside the door of her residence. The wooden door was standing open but a glass “storm door” was closed and locked. There was some broken glass on the porch. The deceased had been shot one time in the area of her neck. The deceased was last seen alive by a friend who left the house at approximately 10:40 p. m. on April 18, 1975. At the time of the killing, the two daughters were with appellant in the course of a regular weekly visitation.

At the trial, Strader testified that the appellant first approached her about finding a “hit man” in late February or early March, 1975. Strader talked to several people about the appellant’s request. The last person she spoke to was Harley Zinn Main. Both Strader and Main were employed in a Jiffy Store on Iowa Park Road in Wichita Falls. After speaking to Main, Strader related that she reported back to the appellant that the job would cost $400, with $200 due immediately and the remaining $200 when the job was done. Appellant delivered $200 to her and she passed it on to Main. After she had delivered the money, Strader stated that the appellant frequently asked “when the job would be completed.” Strader and Main had several discussions about how the killing was to occur. On the morning after the homicide, the appellant arrived at the Jiffy Store in police uniform to have his regular morning cup of coffee. While he was there, appellant told her he hadn’t heard about Linda’s death on the radio yet. Finally, Strader testified that four to five weeks after the killing appellant delivered another $200 to her and she passed this money along to Fields and Gameson.

Harley Zinn Main testified that he was employed at the Jiffy Store and worked the 11:00 p. m. to 7:00 a. m. shift. Main also attended school at Aero Technical Institute. Main related that Strader told him the appellant “was willing to pay to get shed of her, his old lady.” Main said he then approached Fields, who was a friend of his at Aero Tech, and offered him the job. Main called Strader back and asked how much the appellant would be willing to pay. Strader told him that appellant said he would pay “four or five hundred dollars.” Later that day, Main and Fields went to the Jiffy Store and picked up $200 from Strader. Main gave the money to Fields. Main stated that Strader told him on at least two occasions that the appellant wanted to know when the job was going to be done. On one occasion, about four days before the killing, appellant came into the store and asked Main “when they are going to take care of the job.” Main said he didn’t know, and appellant replied, “The sooner the better.” Between the 15th and 18th of April, 1975, Fields came to the Jiffy Store and showed Main a new gun he had purchased. Main further testified that on the night of April 18, 1975, shortly after he went to work at 11:00 p. m., he received a phone call from Gameson, who told him, “The job has been done.”

Gene Edwin Gameson testified he was approached by Main and Fields about participating in the killing. Gameson said he heard the sum of $400 being discussed as “payment for somebody being shot.” Gameson related that “numerous times” before April 18, 1975, he and Fields had “looked at” the house located at 2602 Hairpin Curve where the deceased lived. Game-son and Fields went to the house between 8:00 and 9:00 p. m. on April 18, 1975, and observed that the deceased had company. They returned between 10:30 and 11:00 p. m., when the company had left. They parked the car in an area near the city aqueduct. Gameson stated that both he and Fields had “extensively” used drugs and alcohol before they arrived at that location. According to Gameson, Fields “walked up the aqueduct to Hairpin Drive” and then “went through a back yard” where he lost sight of him. Fields was carrying a .357 magnum Luger pistol when he left the car. In approximately five minutes, Gameson heard a shot and Fields came running back to the car. Fields was “very excited” when he returned to the car. Upon his return to the car, Fields said: “I hit her, she hit the wall and then hit the door. I think she’s dead.” Gameson then observed Fields extract a single empty shell from the gun. Gameson and Fields received the second $200 from Strader at the Jiffy Store two or three weeks after the shooting. Gameson stated that Fields paid him $50 for his part in the killing.

The State also offered the testimony of Carla Gibbins, who was identified as appellant’s one-time girl friend. Gibbins testified that appellant often visited the store where she worked while he was on duty. Appellant told her that “a friend of his knew a friend or knew someone who could ‘blow her [the deceased] away,’ that was the terminology he used.” Gibbins gave the following testimony concerning how appellant told her this would be done:

“He said that there would be — you know, I thought maybe he meant, you know, someone would just walk up to her in the street, you know, and kill her or something, but he said no, that they would walk up on the front porch, ring the door bell and then when she came to the door that they would blow her away.”

In response to her questions about whether his plan would endanger his two daughters, appellant told Gibbins that “it would happen on a Friday night when he had the children with him.” Gibbins related that between one and two weeks before the killing, the appellant showed her a “roll of money” and told her it was his “down payment.” Gibbins was unable to tell how much money was contained in the “roll.” Gibbins’ testimony concerning appellant’s comments on his chance of being caught reflects the following:

“Q. During the times that he would discuss with you how this incident would occur concerning his wife, did you ever talk to him about the possible suspects of the case?
“A. I told him that if something like this happened that he ought to realize he would be the first one that the police would come in and question.
“Q. What did he say in response to that, anything?
“A. He just kind of laughed and said, ‘Well, they can’t prove it.’ ”

Finally, Gibbins testified that on the morning of April 18, 1975, the day of the shooting, appellant came to the Radio Shack where she worked and made two telephone calls. The second phone call was to a man who was working on her car, but during the first call he “talked rather softly over the phone, kind of held his hand over the receiver so no one could hear him.” Gibbins asked appellant whom he had called, and he replied that he had called Aero Tech.

Appellant’s challenge to the sufficiency of the evidence is bottomed on the contention that there was inadequate corroboration of the accomplice witnesses’ testimony. Article 38.14, V.A.C.C.P., provides:

“A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”

In Edwards v. State, 427 S.W.2d 629, 632, we said:

“The test as to the sufficiency of the corroboration is to eliminate from consideration the evidence of the accomplice witness and then to examine the evidence of other witnesses with the view to ascertain if there be inculpatory evidence, that is evidence of incriminating character which tends to connect the defendant with the commission of the offense. If there is such evidence, the corroboration is sufficient; otherwise, it is not.”

See also Caraway v. State, Tex.Cr.App., 550 S.W.2d 699; Loa v. State, Tex.Cr.App., 545 S.W.2d 837; Etheredge v. State, Tex.Cr.App., 542 S.W.2d 148; Williams v. State, Tex.Cr.App., 542 S.W.2d 131; James v. State, Tex.Cr.App., 538 S.W.2d 414; Deas v. State, Tex.Cr.App., 531 S.W.2d 810; Moore v. State, Tex.Cr.App., 521 S.W.2d 263; Bentley v. State, Tex.Cr.App., 520 S.W.2d 390; Forbes v. State, Tex.Cr.App., 513 S.W.2d 72; Cherb v. State, Tex.Cr.App., 472 S.W.2d 273.

It is also well established that the corroborative testimony need not directly link the accused to the crime or be sufficient in itself to establish guilt. Lyman v. State, Tex.Cr.App., 540 S.W.2d 711; Bentley v. State, supra; Black v. State, Tex.Cr.App., 513 S.W.2d 569; Cherb v. State, supra. The corroboration need only make the accomplice’s testimony more likely than not. James v. State, supra; Bentley v. State, supra; Warren v. State, Tex.Cr.App., 514 S.W.2d 458.

The trial court properly instructed the jury that Strader, Main, and Gameson were accomplice witnesses as a matter of law. After we eliminate their testimony, we are left with the following facts: (1) Linda Brown was killed by a single gunshot wound to the area of her neck at approximately 11:00 p. m. on Friday, April 18, 1975; (2) the deceased was shot through the locked “storm door” on the front door of her house; (3) the appellant told Carla Gib-bins that a friend of a friend would blow his wife away for him; (4) the appellant told Gibbins that the killing would take place when someone rang the deceased’s door bell and shot her as she answered the door; (5) appellant told Gibbins that the killing would occur on a Friday night when he had his daughters with him; (6) appellant showed Gibbins a “roll of money” and told her it was for his “down payment”; (7) appellant was not concerned that he would be a suspect, saying the police couldn’t prove his involvement; and (8) on the morning of the killing appellant made a hushed phone call to Aero Tech, where Main, Fields, and Gameson all attended school.

We find that the evidence was sufficient to connect appellant with the commission of the offense, and conclude that the evidence supports the conviction.

Appellant next complains that he was denied equal protection of the law because he was charged under V.T.C.A. Penal Code, Sec. 19.03(a)(3) (Capital Murder based on employing another to commit the murder) instead of V.T.C.A. Penal Code, Sec. 15.03 (Criminal Solicitation). Specifically, he complains that the statutes are “duplica-tive” and that he was denied equal protection by being charged with the more serious of the offenses.

Appellant is incorrect in his contention that the statutes are “duplicative.” Section 19.03, supra, contains the requirement that a murder must actually have been committed. There is no such requirement for Sec. 15.03, supra. Thus, the two statutes do not prohibit the identical conduct. Section 15.03, supra, would be proper where the solicitation occurred but the murder itself was not committed. See Hobbs v. State, Tex.Cr.App., 548 S.W.2d 884.

In Ex parte Jewel, 535 S.W.2d 362, 364, we said:

“It is well established that ‘the prosecuting attorney may carve as large an offense out of a single transaction as he can, but he must only cut once . . ..’ 1 Branch’s Ann.P.C., 2d Ed., Sec. 654, p. 625; Fleming v. State, 168 Tex.Cr.R. 595, 330 S.W.2d 457 (Tex.Cr.App.1959).”

Here the prosecutor chose to proceed under capital murder, which was the largest offense possible from the transaction involved. When the facts reflect that a murder was committed, and the other elements of the offense set forth in Sec. 19.03(a)(3), supra, are present, the State is fully within its rights to proceed under a capital murder indictment. To adopt the appellant’s theory would require prosecutions to be brought only under the least serious possible offense. This we decline to do.

Appellant next contends that the trial court abused its discretion by failing to grant his motion for new trial based on newly discovered evidence. The record reflects that on May 4, 1976, the appellant filed his “Amended Motion for New Trial” in which he set out his new evidence. Attached to the motion was the following sworn affidavit of Carol Ann Hart:

“My name is Carol Ann Hart and I reside at 1405 North 9th Street, Wichita Falls, Wichita County, Texas. On April 20, 1975, I talked to Zelma Strader and she stated to me that James David Brown had nothing to do with the death of his wife, Linda Faye Brown.”

No hearing was ever held on this motion.

The trial court did not abuse its discretion by refusing to grant the motion. The appellant’s “Amended Motion for New Trial” is not sworn to and thus does not present the error to us for review. In Montgomery v. State, 460 S.W.2d 419, we said:

“We first observe that the motion is not sworn to, for which reason alone it is not sufficient to present for review the claimed error in the overruling of the motion based on newly discovered evidence. Browning v. State, Tex.Cr.App., 432 S.W.2d 85; Watkins v. State, Tex.Cr.App., 438 S.W.2d 819; Martin v. State, Tex.Cr.App., 459 S.W.2d 845. Such rule is well established and the attached affi davit of the allegedly newly discovered witness alone will not suffice. Martin v. State, 169 Tex.Cr.R. 423, 334 S.W.2d 796; Barnett v. State, 160 Tex.Cr.R. 622, 273 S.W.2d 878.” [Emphasis supplied.]

Even if the issue was properly before us, no error would be shown. The evidence in Hart’s affidavit serves only to impeach Strader. In Ayala v. State, 511 S.W.2d 284, 288, this Court said: “Affidavits containing mere impeachment testimony are not such newly discovered evidence as will require the granting of a new trial.” No error is shown.

Lastly, appellant contends that the court erred in overruling his objection to the testimony of a police officer that he believed that appellant was “trying to act like he was unconscious.”

Officer Cawyer of the Wichita Falls Police Department testified that he saw appellant when he arrived at the scene of the homicide, that appellant was seated, “slumped backwards and being supported,” and that he was “kind of groaning, moaning and whimpering-type sounds.” In response to a question as to what he “observed concerning his condition,” the witness responded, “He was trying to act like he was unconscious in my opinion.” Caw-yer further testified that when he told appellant to open his eyes that “he [appellant] opened his eyes immediately.” Objection was made to the testimony relative to appellant “trying to act like he was unconscious” for the reason that the witness was not qualified as a medical expert. The objection was overruled by the court.

We find the complained of statement to be a shorthand rendition of the facts. See Silva v. State, Tex.Cr.App., 546 S.W.2d 618 (that defendant and his brother had ambushed the declarant); Dabbs v. State, 507 S.W.2d 567 (the cigarette appeared to be fresh); Ashley v. State, Tex.Cr.App., 527 S.W.2d 302 (“I would say she was very upset ”); Gardner v. State, Tex.Cr.App., 486 S.W.2d 805 (that mark on door had been caused by object having been “slid in the door between the door and the trim”); see also McCormick and Ray, Texas Practice, Vol. 2, Evidence, 2d Ed., Sec. 1397. No error is shown.

The judgment is affirmed.

      . V.T.C.A. Penal Code, Sec. 19.03, provides, in pertinent part:
      “(a) A person commits an offense if he commits murder as defined under Section 19.-02(a)(1) of this code and:

      (3) the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration.”

      .V.T.C.A. Penal Code, Sec. 15.03, provides, in pertinent part:
      “(a) A person commits an offense if, with intent that a capital felony or felony of the first degree be committed, he requests, commands, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the actor believes them to be, would constitute the felony or make the other a party to its commission.”

      . For a holding similar to appellant’s theory, see Jones v. State, 552 S.W.2d 836, where we held it was improper to prosecute under V.T. C.A. Penal Code, Sec. 31.03(d)(4)(A) (Theft over $200) when the same actions were covered more specifically by Vernon’s Ann.Civ.St., art. 695c, sec. 34 (Public Welfare Act).

      . See Alejos v. State, 555 S.W.2d 444 (Opinion on State’s Motion for Rehearing), where we held that the State properly exercised its option to prosecute under V.T.C.A. Penal Code, Sec. 38.04 (Evading Arrest) instead of Vernon’s Ann.Civ.St. art. 6701d, sec. 186 (fleeing or attempting to elude a police officer).


author: DOUGLAS, Judge.

text:
    William Charles EVERT, Appellant, v. The STATE of Texas, Appellee.
    No. 53975.
    Court of Criminal Appeals of Texas. Panel No. 2.
    Feb. 15, 1978.
    Rehearing En Banc Denied March 22,1978.

      Malcolm Dade and Richard Alan Anderson, Dallas, for appellant.
    Tim C. Curry, Criminal Dist. Atty., Marvin Collins, Paul E. Gartner, Jr., and Asst. Dist. Attys., Fort Worth, for the State.
   OPINION

Before ONION, P. J., and DOUGLAS and ODOM, JJ.

DOUGLAS, Judge.

William C. Evert appeals from his conviction for the offense of commercial obscenity. Punishment was assessed by the jury at three months in jail and a $1,000 fine. The sufficiency of the evidence is not challenged.

Thirteen grounds of error are set forth in appellant’s brief. In light of our disposition of the appeal, discussion will be confined to ground of error number three wherein appellant alleges that the court erred in failing to excuse potential juror Holcomb for cause. Appellant contends that he (1) was compelled to exercise a peremptory challenge to this juror, (2) that he exhausted all of his peremptory challenges, and (3) was thereby forced to accept another objectionable juror.

On voir dire examination by the State Holcomb indicated that she had no problem with the law of obscenity as it had been explained to the prospective jurors and that she could think of no reason why she could not be a fair and impartial juror. She later retreated substantially from this position. When questioned by appellant’s counsel concerning the type of movies and books she found acceptable, she stated that in her opinion the motion picture “Cabaret” was obscene because it suggested that the characters had engaged in pre-marital sexual relations. She held this opinion despite the fact that the film contained no nudity or explicit sexual activity. Upon further questioning, juror Holcomb stated unequivocally that mere frontal nudity was obscene to her, in and of itself. When asked if she could disregard her personal beliefs and consider the evidence in light of community standards of obscenity, juror Holcomb indicated that she could not and stated that she would be compelled to find mere nudity on film obscene.

Article 35.16(c)(2), V.A.C.C.P., provides:

“(c) A challenge for cause may be made by the defense for any of the following reasons:
* * *
“2. That he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof.”

The responses elicited from potential juror Holcomb on voir dire show that she harbored a bias or prejudice against the law applicable to appellant’s case in two respects. First, she expressed the firm conviction that mere nudity is obscene. This Court has held that it is not. Thacker v. State, 490 S.W.2d 854 (Tex.Cr.App.1973); Hunt v. State, 475 S.W.2d 935 (Tex.Cr.App.1972), citing Bloss v. Dykema, 398 U.S. 278, 90 S.Ct. 1727, 26 L.Ed.2d 230 (1970), and Central Magazine Sales, Ltd. v. United States, 389 U.S. 50, 88 S.Ct. 235, 19 L.Ed.2d 49 (1967).

Second, juror Holcomb indicated that if confronted by mere nudity on film she would be compelled to find it obscene in accord with her personal standards, regardless of whether such a film offended contemporary community standards. V.T.C.A., Penal Code, Section 43.21(1)(B), provides that it is the contemporary community standard and not one’s personal standard that shall be applied in determining whether any given material is obscene. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966).

The State contends that juror Holcomb was rehabilitated in a later dialogue with appellant’s counsel:

“MR. DADE: And you apply not your standards, but the community standards in trying to decide whether this material is or is not obscene. Do you understand that?
“MRS. HOLCOMB: Yes, I understand that.
“MR. DADE: In other words you will disregard the fact, if I understand you, that nudity in and of itself offends you and will try to reach out and decide how bad or how good the rest of the community isl (Emphasis supplied)
“MRS. HOLCOMB: Yes, I will try.”

The State urges that when viewed as a whole the voir dire of Mrs. Holcomb shows her to have been qualified.

We agree with the State that voir dire should be viewed in its entirety. In doing so, however, we observe that juror Holcomb did not state that she would abide by contemporary community standards in reviewing the evidence. She merely stated that she would try to ascertain what the community standard was. She did not assure appellant that, having assessed the contemporary community standard, she would apply that standard. Her answer must also be viewed in comparison to her earlier emphatic statement that she could not set aside her personal tastes and would be compelled to find mere nudity obscene. Taken as a whole, we conclude that juror Holcomb was not sufficiently rehabilitated and that her answers on voir dire showed her to be prejudiced against the law applicable to appellant’s case. As such, she was subject to challenge for cause. Vera v. State, 547 S.W.2d 283 (Tex.Cr.App.1977); Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974); Reeves v. State, 491 S.W.2d 157 (Tex.Cr.App.1973). .

The record reflects that appellant requested that Holcomb be excused for cause and that this request was denied. Appellant was required to exercise a peremptory challenge in order to strike her and was forced to accept another objectionable juror as a result. Appellant exhausted all of her peremptory challenges and was denied an additional strike. Under these circumstances the conviction must be set aside. Emanus v. State, 526 S.W.2d 806 (Tex.Cr.App.1975); Burkett v. Stale, 516 S.W.2d 147 (Tex.Cr.App.1974); Powers v. State, 497 S.W.2d 594 (Tex.Cr.App.1973).

The judgment is reversed and the cause is remanded.

      . A question is raised concerning argument of the prosecutor that defense counsel was calling the jurors and people of Tarrant County hypocrites. Another question is raised concerning the following argument:
      “If that weren’t true [that if the jury found the film not to be obscene it could be shown anywhere in Tarrant County] the court would not let me stand up here and tell you that.”
      These or like arguments are not likely to be made in the event of another trial.


author: ONION, Presiding Judge.

text:
    Robert Lee TRAYLOR, Appellant, v. The STATE of Texas, Appellee.
    No. 56919.
    Court of Criminal Appeals of Texas. Panel No. 2.
    Feb. 15, 1978.
    Melvyn Carson Bruder, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky and Jan E. Potts, Asst. Dist. Attys., Dallas, for the State.
   OPINION

Before ONION, P. J., and DOUGLAS and ODOM, JJ.

ONION, Presiding Judge.

This is an appeal from an order revoking probation.

On January 16, 1975 the appellant entered a plea of guilty in a bench trial to the offense of burglary of a building and was assessed a punishment of three (3) years’ imprisonment. Imposition of sentence was suspended, and the appellant was placed on probation subject to certain conditions, including “(a) Commit no offense against the laws of this or any other State or the United States.”

On July 30, 1975 a motion to revoke probation was filed. No action seems to have been taken on such motion.

On April 5, 1976 another motion to revoke probation was filed alleging that “On or about the 28th day of March, 1976, in Dallas County, Texas, Robert Lee Traylor did then and there intentionally and knowingly cause bodily injury to Mike Martinez by striking him with his fist.”

On May 11, 1976 the court conducted a hearing on such motion, at which time the appellant entered a plea of “true.” In the record is a written instrument entitled, “Plea of True and Stipulation of Evidence in Probation Revocation Hearing,” dated May 11, 1976. The instrument, which was signed and sworn to by the appellant on that date, contained the following handwritten statement: “On March 28, 1976 I intentionally and knowingly cause (sic) bodily injury to Mike Martinez by hitting him with my fist.” At the conclusion of the hearing, the court stated, “The Court accepts your plea of ‘true’, finds the allegations to in fact be true and recesses this hearing pending the Court’s making a decision on the motion. The defendant is ordered released and is to continue to report to the Probation Officer pending the Court’s decision.”

On November 16, 1976 another motion to revoke probation was filed alleging, among other things, that on November 11,1976 the appellant was unlawfully in possession of heroin. On January 11, 1977 the appellant was again before the trial court where the judge called to the appellant’s attention the fact that he had previously entered a plea of “true” and that the allegations had been found to be true and that the hearing had been recessed. The record then reflects:

“THE COURT: And, at the time we did that, I believe I told you that I was not denying the Motion to Revoke your Probation, and I wasn’t granting it. In other words, I didn’t want to revoke your probation back then, did I?
“THE DEFENDANT: No, you did not. But, I must have misunderstood you. I know it was not revoked, I understand that.
“THE COURT: It wasn’t reinstated, either, but it was left exactly the way it was, with the understanding that you would be released, and I would take my time about deciding whether I wanted to revoke you.
“Now, we are here today because I have made my mind up.
“THE DEFENDANT: Okay.”

The court then ordered the revocation of probation. Sentence was imposed and notice of appeal was given.

Relying upon Wester v. State, 542 S.W.2d 403 (Tex.Cr.App.1976), the appellant contends the court abused its discretion. In Wester the question presented was whether a trial judge following a revocation hearing may continue a defendant on probation (although there is an adequate basis for revocation) and then subsequently upon report of another probationary violation revoke probation without motion by the State or a hearing basing the revocation upon the ground shown at the earlier hearing.

In Wester the defendant entered a plea of “true” to the first count of the revocation motion, at which time the State abandoned the other two counts and recommended that Wester be continued on probation. The court stated that probation would not be revoked and that Wester would be continued on probation. Probationary conditions were then amended and a notation was added, “Automatic Revocation if any other Violation.” Later the court, without a hearing, noted on the docket sheet that probation was to be revoked upon allegation of “New Theft.” Still later the defendant was brought to court and informed that this probation had been “continued,” but upon information as to an attempted burglary since that time probation was to be revoked.

There this court wrote:

“Likewise, it follows that when a revocation proceeding has been had and the defendant continued on probation in the discretion of the court (although there was an adequate basis for revocation demonstrated at the hearing), the continuation cannot subsequently be arbitrarily withdrawn at the whim of the trial court or upon mere fact of an arrest. To hold otherwise would violate due process, due course of the law of the land and fundamental fairness. The record here clearly supports the fact that the trial judge automatically revoked upon learning of a new arrest and erred in so doing.
“We cannot conclude that the attempt in the formal revocation order to base the revocation on appellant’s plea of ‘true’ at the hearing where he was continued on probation calls for a different result.”

We conclude that the instant case is distinguishable on its facts from Wester, and more closely akin to Sappington v. State, 508 S.W.2d 840 (Tex.Cr.App.1974). In Sap-pington the court heard evidence at a revocation hearing that Sappington had committed a burglary in violation of probationary conditions. No oral ruling was made at the conclusion of the hearing, and no docket sheet entry or written order was entered as to the court’s ruling. Apparently the ruling was delayed in view of appellant’s request to seek treatment for narcotic addiction. A little over three months later the court entered a written order revoking probation based on the burglary shown at the revocation hearing. Sappington claimed, however, that the court revoked probation because of his arrest after the revocation hearing on a narcotic charge. However, there was nothing in the Sappington record to show the court knew of his narcotic arrest or acted to revoke on that basis.

In the instant case the trial judge made clear that on May 11, 1976 he was taking the matter under advisement, and on January 11, 1977 revoked probation upon the basis of the plea of true and stipulation at the earlier revocation hearing. The record reflects that after revocation the court inquired:

“THE COURT: When did you come to jail?
“THE DEFENDANT: November 12th, I believe, Judge.
“THE COURT: He was arrested on the 12th on his new offense?
“MR. HALSEY (Defense Counsel): I think that’s right.”

While the above indicates that the trial court had knowledge of a new offense, there is no showing that the court used such as the basis for revocation. The inquiry above was obviously to determine what jail time credit to give the appellant on his sentence then about to be imposed. The sentence reflects the appellant was given credit for jail time from November 12,1976.

Appellant’s initial contention is overruled.

Appellant also contends his conviction for burglary is void because there is a fatal variance between the pleadings and the proof. He urges that the indictment alleges a burglary by entry and the subsequent commission of theft under V.T.C.A., Penal Code, § 30.02(a)(3), and that his judicial confession admits only an entry “with the intent to commit theft.” This is a collateral attack upon the sufficiency of the evidence to sustain the conviction from which no appeal was taken at the time probation was granted. The general rule is that the sufficiency of the evidence to sustain a conviction cannot be collaterally attacked. Owens v. State, 540 S.W.2d 324 (Tex.Cr.App.1976). Further, an appeal from an order revoking probation is limited to the propriety of the revocation and does not include a review of the original conviction, Hoskins v. State, 425 S.W.2d 825, 828 (Tex.Cr.App.1968), and cases there cited, except in a case of fundamental error such as a fatally defective indictment. Huggins v. State, 544 S.W.2d 147 (Tex.Cr.App.1976); Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972).

Further, even if the sufficiency of the evidence could be collaterally attacked, we observe that there is no statement of facts as to the guilty plea in the record so that such question could be determined. There is nothing to indicate the judicial confession was the only evidence offered.

Appellant’s contention is overruled.

Appellant further advances the contention that the burglary indictment is fatally defective because it fails to describe the property taken by the appellant after the alleged burglarious entry. We conclude that Davila v. State, 547 S.W.2d 606 (Tex.Cr.App.1977), is contrary to appellant’s contention and overrule his contention.

Finding no abuse of discretion, the judgment is affirmed.

      . The docket sheet contains a notation that the hearing was conducted on April 16, 1976 and there is no docket entry as to May 11, 1976. It appears from the entire record that the “April 16, 1976” entry on the docket sheet is a clerical error.

      . In his statements to the appellant, the judge used the date “April 16” as the date of the earlier revocation hearing, apparently using the docket sheet as a guide. As noted in footnote one, this docket entry was apparently made in error.