author: BROWN, Commissioner. DOUGLAS, Judge.

text:
    Charles Wallace SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 51498.
    Court of Criminal Appeals of Texas.
    June 2, 1976.
    On Motion for Rehearing Sept. 20, 1976.

      Arthur Brender, Fort Worth, for appellant.
    Tim Curry, Dist. Atty. and Donald S. Gandy, Asst. Dist. Atty., Fort Worth, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for the offense of aggravated kidnapping under V.T.C.A. Penal Code, Sec. 20.04. The jury assessed punishment at twenty-five (25) years in the Texas Department of Corrections.

The sufficiency of the evidence is not challenged by the appellant’s appointed counsel. Only a brief resume of the facts is, therefore, required.

The record reflects that James E. Berry and L. V. Henderson were abducted at gunpoint from a Fort Worth grocery on the morning of September 15,1974. They were taken by three men, James E. Smith, the brother and co-defendant of the appellant, Dwight Orr, and a third man. Both victims were taken to an apartment in the Riverside Village Apartments complex in Fort Worth. There were numerous visitors to the apartment where the victims were held, and at one point both victims were burned with heated coat hangers by an individual called “Red.” The appellant armed with a pistol arrived later at the apartment where the victims were being held and told both of the victims that he had drawn battery acid into a syringe. The appellant then told both victims that he was going to inject both of them with the battery acid and that this would result in instant death.

The appellant and three other individuals took Berry to a wooded area in southern Tarrant County. There, the appellant and the others attempted to inject Berry with battery acid unsuccessfully; finally, they drew straws and one of the four shot Berry, resulting in his death. Meanwhile Henderson escaped. Berry’s body was found on September 18, 1974 in a wooded area near Mansfield in Tarrant County.

In light of the disposition of this case we need not reach the contentions contained in the appellant’s first seven grounds of error.

The appellant in his eighth ground of error contends that the State suppressed the fact that Lonnie Williams, one of the four present when Berry was murdered, had entered into a plea bargain with the District Attorney’s office, when Williams denied such an agreement during his testimony for the State.

The appellant argues that during the guilt or innocence stage of the trial Lonnie Williams denied during cross-examination that there had been any agreement between himself or his attorney for a recommendation of a lenient sentence from the District Attorney in return for his testimony in this case.

The record reflects that the appellant filed a Motion for Discovery in which he asked that the State disclose “any evidence that the State may have in its possession or may know about, which would be favorable or helpful to the defense.”

The record reflects the following during the cross-examination of Lonnie Williams during the guilt or innocence stage of the trial:

“Q And I believe you said that Mr. Joe Johnson here is your attorney, is that correct?
“A Yes, sir.
“Q And you know who this Assistant Criminal District Attorney is sitting here — you have talked to him before, have you not?
“A Yes, sir, on the 20th.
“Q All right, sir. And I believe that in return for your testimony in this case, they made an agreement between you and — your Prosecutor and your attorney, did they not?
“MR. BUCKNER: If we did, Your Honor—
“THE WITNESS: No, sir.
“MR. BUCKNER: —It wouldn’t make any bearing on his testimony and it wouldn’t be admissible.
“THE WITNESS: They didn’t make an agreement with me.
“THE COURT: I’ll overrule the objection.
BY MR. HILL:
“Q Were you told by your lawyer that if you did testify and plead guilty that you would get a certain number of years in the penitentiary?
“A No, sir.
“Q Have you plead guilty?
“A Yes, sir, I pleaded guilty. He told me to plead guilty on the 20th since I was guilty.
“Q Yes, sir.
“A I might as well plead.
“Q I understand that. Did the Judge go ahead and sentence you and tell you how much time you were going to get?
“A No, sir, he told me that he was going to think it over two or three days and he would pass sentence later on me and Fat Albert, both.
“Q And would pass sentence after you testified in the case, is that correct?
“A He didn’t say after I testified.
“Q He did not say?
“A He didn’t even mention ‘testify.’ I didn’t know that I was suppose to be down there.
“Q Did they tell you you could be sent to the penitentiary for life?
“A Right, sir.
“Q But nobody has promised you anything?
“A No one promised me anything.
“Q Did they offer you anything?
“A Offer me anything?
“Q Yes, sir.
“A They haven’t offered me anything. I wouldn’t have taken offering nowhere. I wouldn’t have taken no ten years or life — they haven’t offered me anything.
“Q Do you expect to be offered anything?
“A I expect just to go serve my time and get it all over with is all I expect.
“Q I understand that—
“MR. BUCKNER: Your Honor, we’re going to object again to repetition and also materiality.
“THE COURT: Overruled.
“BY MR. HILL:
“Q Do you expect to get ten years or less?
“A No, sir, I don’t even realize that. That is up to the Judge and jury.
“Q You understand that you’re not going to have a jury?
“A Well, that doesn’t make it any different, just still get it over with.
“Q Did they tell you that you were going to have to testify against the other people in the case?
“A Did they tell me that I have to testify?
“Q Did they tell you you were going to be called to testify?
“A Yes, sir, told me that I had to testify and he wanted me to tell the truth.
“Q But they didn’t tell you that you were going to get ten years or less?
“A No, sir.
“Q You just are trusting your lawyer?
“A He has been fair with me sofar.
“Q And the State has been fair with you sofar, haven’t they?
“A I don’t know whatever they give me, I have to take it.”

At the punishment stage of the trial the appellant called Lonnie Williams’ attorney, Joe Johnson, Jr., who testified as follows:

“Q State your name, please.
“A Joe Johnson, Jr.
“Q What’s your profession, Mr. Johnson?
“A I’m an attorney.
“Q And zeroing on this case, did you represent one of the defendants in this case?
“A Yes, I represented Lonnie Bob Williams.
“Q Has he pleaded guilty in this case?
“A He has.
“Q And was there any agreement between the State of Texas and the defendant as to what punishment he would receive?
“A The State indicated to me that if he plead guilty and testified and testified to the truth that they would probably recommend to the Court a ten year sentence.
“Q Okay, sir. Was there any other—
“A Well, in order to protect my client, there was a proviso with that. I said that if any defendant received less than ten years, then I wanted them to consider making the same recommendation and that he receive no more than the least sentence that might be got because in my estimation, Lonnie Bob Williams was less culpable than anybody.
“MR. COOK: I believe that’s all.
“MR. HILL: And that—
“THE COURT: You’re going to cross examine him?
* * * * * *
“BY MR. HILL:
“Q And was that recommunicated to you by these prosecutors sitting right over.here?
“A Yes, sir.”
(Emphasis Added)

The United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1964) held that the suppression by the prosecution of evidence favorable to the accused after a request violates due process where the evidence is material either to the guilt or punishment irrespective of the good or bad faith of the prosecution.

In Ridyolph v. State, 503 S.W.2d 276 (Tex.Cr.App.1973) this Court reversed a conviction on the failure of the prosecution to disclose a police report indicating a witness who apparently could have given testimony favorable to the accused, holding this violated the prosecutor’s constitutional duty to disclose evidence favorable to the accused. The Court relied on Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972) which set out the factors to be considered when the prosecution is alleged to have suppressed evidence. First, there must be suppression by the prosecution after a request by the defense. Second, the evidence’s favorable character for the defense must be shown. Third, the evidence must be material to the case.

In Burkhalter v. State, 493 S.W.2d 214 (Tex.Cr.App.1973) this Court held that the State may not knowingly use false testimony and that the rule does not cease to apply merely because the false testimony goes only to the credibility of the witness. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). As recognized in Napue v. Illinois, supra, the jury's estimate of the truthfulness and reliability of a witness may well be determinative of guilt or innocence.

As stated in 1 C. McCormick & R. Ray, Texas Evidence, Sec. 673 (2d ed. 1956):

“Where an accomplice in the crime with which the accused is charged testifies for the prosecution this is a circumstance affecting his credibility. It indicates a probability that he is seeking or has been promised favor at the hands of the State.”

Recently in Trippell v. State, 535 S.W.2d 178 (Tex.Cr.App.1976) we held that it was reversible error to deny the accused the right to cross-examine a witness about a prior conviction that could have reflected on his bias, prejudice, and ulterior motive. In Trippell v. State, supra, we cited Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1975) wherein the Supreme Court stated:

“The partiality of a witness is subject to exploration at trial, and is ‘always relevant as discrediting the witness and affecting the weight of his testimony.’ 3A J. Wigmore, Evidence, § 940, p. 775 (Chadbourn rev. 1970).”

Clearly, the prosecutor erred in failing to correct the erroneous impression made by Lonnie Williams in his testimony at the guilt or innocence stage of the trial. As in Buckhalter v. State, supra, it is not a question of knowing perjury on the part of Williams, since he may not have been aware of the agreement made by his counsel, but the knowledge will be imputed to him because of the false impression made before the jury. The defense should have been able to place the parties and the witness in their proper perspective and to develop further the interests involved. The prosecutor may not be a party to a knowing misrepresentation of the relationship of the witness to the facts of the case. Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957). See also DR 7 — 102(a)(4) and EC 7-13, Symposium — Legal Ethics, 23 Baylor L.R. (1972).

We simply hold that the knowing suppression of the plea bargain between the prosecution and the witness Lonnie Williams from the jury during the guilt or innocence phase of the trial is a denial of due process and requires the reversal of the conviction. We are not unmindful of the time and expense involved in the preparation of this case. Our intent is not to punish the prosecutor or the trial court for the error discussed, but rather to avoid an unfair trial. Society wins not only when the guilty are convicted but also when the criminal trial is fair; our system of justice suffers when any accused, no matter what the evidence, is treated unfairly. Brady v. Maryland, supra.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

In the opinion on original submission the judgment was reversed on the ground that the State did not inform appellant that it had agreed with an attorney for an accomplice witness to plead guilty for a recommendation of a light punishment. We agree with the State’s contention that there was no showing and no claim that counsel for appellant did not know of this agreement. The prior dissenting opinion is withdrawn. We affirm.

The appeal is from a conviction for the offense of aggravated kidnapping under Y.T.C.A., Penal Code, Section 20.04. Punishment was assessed by the jury at twenty-five years.

The indictment alleged that on the fifteenth of September, 1974, appellant

“. . . did then and there knowingly and intentionally abduct James E. Berry by secreting and holding him in a place where he was not likely to be found and by using and threatening to use deadly force on the said James E. Berry, and with the intent to terrorize and inflict bodily injury on the said James E. Berry and to facilitate the commission of a felony, to-wit: murder of the said James E. Berry, by shooting him with a gun.”

At approximately 10:00 o’clock on a Sunday morning, September 15, 1974, James E. Berry and L. V. Henderson were abducted at shotgun point from a grocery store in Fort Worth. They were taken by James E. Smith, a brother and co-defendant of appellant Charles Wallace Smith, Dwight Orr and a third man to an apartment in Riverside Village apartment complex in Fort Worth. After Berry and Henderson were bound, they were burned with a coat hanger by Elwin Joseph “Red” Oubre. Later, Charles Wallace Smith, appellant, arrived at the house armed with a pistol. He told Berry and Henderson that he had drawn battery acid into a syringe and that he was going to inject it into both of them and that it would cause instant death. He told the group that they ought to get it over with. He, James Smith, Albert Harrison, known as Fat Albert, and Lonnie Bob Williams took Berry to James Smith’s car. L. V. Henderson escaped. Someone fired at him but he was not hit. Williams, Harrison and the Smith brothers then drove Berry to a secluded area near Mansfield. Berry was taken from the car into a wooded area some distance from the road. Either appellant or Harrison then drew the acid from a battery and Harrison and James Smith both attempted unsuccessfully to inject the acid into Berry. All four of them attempted to choke Berry. Finally, the four drew straws to decide which would “rub out” Berry. He was shot and killed.

The State’s case was made mainly from the testimony of L. V. Henderson who escaped and Lonnie Bob Williams, the accomplice witness who had already entered a plea of guilty to the offense. L. V. Henderson had been convicted for armed robbery and burglary. He testified that the two groups had been feuding over the sale of some marihuana and a robbery.

We will first discuss the ground of error under which this cause was originally reversed. It is, in substance, that the court erred in failing to grant a new trial after evidence was introduced at the punishment stage of the trial that the district attorney had made an agreement with the accomplice witness Lonnie Bob Williams to recommend a ten-year or less sentence in return for his testimony and that the district attorney failed to disclose this.

Appellant does not contend nor does he claim that he did not know that an agreement had been made. In fact, the evidence shows that no agreement had been made with the witness Williams and the State. The only agreement shown was that the prosecutor had told Joe Johnson, Jr., the attorney for Williams, that he would recommend ten years or perhaps less. The evidence shows that the witness did not know of the agreement.

Apparently appellant’s counsel at the trial knew of the arrangement between the counsel for Williams and the State at the guilt stage of the trial. On cross-examination, the defense attorney asked:

“Q. All right, sir. And I believe that in return for your testimony in this case, they made an agreement between you and — your prosecutor and your attorney, did they not?”

Then, further questions were asked as follows:

“Q. Do you expect to get ten years or less?”

and

“Q. But they didn’t tell you that you were going to get ten years or less?”

These questions along with the testimony of the attorney Joe Johnson, Jr., who was called by the defense at the punishment stage of the trial, were predicated upon knowledge of what the agreement was between the prosecutor and the attorney representing the witness. The record does not show as required by our previous decisions that appellant had no knowledge of what he claims to have been suppressed but indicates to the contrary that he did, in fact, have such knowledge.

The ground of error alleges that the court failed to grant a new trial because of the suppression of the evidence. No motion for new trial on this ground was made. There was no motion for a mistrial after testimony was introduced at the penalty stage of the trial. Appellant was apparently satisfied at that time. If the court had granted a mistrial on its own motion, jeopardy would have attached.

In Chappell v. State, 489 S.W.2d 923 (Tex.Cr.App.1973), this Court held that one could not complain of suppression of evidence by the prosecution if the facts were already within his knowledge.

In Means v. State, 429 S.W.2d 490 (Tex.Cr.App.1968), this Court required that before one could obtain reversal on grounds of suppression of evidence he would have to make some showing at the trial that he did not know the evidence allegedly suppressed. In Means, this Court wrote:

“If appellant’s counsel, of course, actually knew the facts which were withheld, appellant cannot now seek relief on the basis of the State’s failure to disclose the same facts. See Thomas v. United States, 343 F.2d 49 at pp. 54-55, 9th Cir., 1965; United States ex rel. Thompson v. Dye, 221 F.2d 763 at p. 767, 3rd Cir., Cert. denied, 350 U.S. 875, 76 S.Ct. 120, 100 L.Ed. 773. Therefore, even if we were to conclude that the actions of the State’s attorney constituted suppression of the evidence, which may have had an effect on the outcome of the trial, still reversible error is not shown in view of the fact that appellant has failed to show that he did not know the results of the test involved before the receipt of the jury verdict at this one stage trial.”

Burkhalter v. State, 493 S.W.2d 214 (Tex.Cr.App.1973), relied upon by appellant is not in point because that was not a claimed suppression of evidence case. Burkhalter and his counsel knew that an attorney not connected with the case offered to get Whi-tehurst immunity if he would testify for the State. This Court reversed that conviction because the trial court refused to let Burk-halter prove the offer. In the present case, appellant did not ask if there was an agreement between counsel for Williams and the State. Appellant did not then, and does not now, claim that he had no knowledge of the agreement between the attorneys. Under Means v. State, supra, one has to show that he did not know of such agreement to claim suppression of evidence. If one knows of such an agreement, he should offer proof of it and, if excluded, then he could claim reversible error under the Burkhalter case.

Appellant relies upon Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). That case is not in point because it involved a discovery, after trial, of information known to the prosecution but unknown to the defense.

Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935), also relied upon is not applicable because the undisclosed evidence demonstrated that the prosecution’s case included perjured testimony and that the prosecution knew, or should have known, of the perjury. No perjury was involved in the present case.

Recently, the Supreme Court of the United States in United States v. Agurs, — U.S. —, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), held that the failure of the prosecutor to furnish the criminal record of the deceased (which showed convictions for assaults) in a murder trial where the issue of self-defense had been raised was not reversible error. There, as in the present case, was no request for the information. The court wrote: “If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.” The Supreme Court did not favor reversal for “automatic error.” Mr. Justice Stevens, in the Agars case, wrote a well-reasoned opinion concerning the standards for the prosecution in disclosing matters favorable to the defense.

To hold that one has knowledge of such an agreément and later claim that he was not told by the prosecutor of the agreement would be to allow one to take a free ride during the trial and if he is not satisfied with the result he can always get a new trial.

We hold, as we did in Means and in subsequent cases, that because appellant failed to show that he had no prior knowledge of a plea bargain between the attorney for Williams and the State no reversible error is shown. See Haywood v. State, 507 S.W.2d 756 (Tex.Cr.App.1974), and Simmons v. State, 504 S.W.2d 465 (Tex.Cr.App.1974).

Even though no motion to quash was filed, appellant contends that the indictment is fundamentally defective because it does not allege an element of the offense essential to the determination of punishment. V.T.C.A., Penal Code, Section 20.04, provides that the crime of aggravated kidnapping is a first degree felony unless the kidnapper voluntarily releases his victim alive and in a safe place. Appellant urges that the indictment does not allege that he failed to release his victim alive and in a safe place and, therefore, he did not know if he had been charged for a first or a second degree felony.

The releasing of a victim alive and in a safe place is not an element of aggravated kidnapping. That part of the code providing for a reduction of punishment if a victim is released alive and in a safe place does not provide that such is an “exception” as set out in V.T.C.A., Penal Code, Section 2.02, which provides:

“(a) An exception to an offense in this code is so labeled by the phrase: ‘It is an exception to the application of . . . .’
“(b) The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant’s conduct does not fall within the exception.”

The State is not bound to negate the existence of such a fact. The proof of such a release would be in mitigation of punishment and not an exception under Section 2.02, supra. We hold that the indictment is sufficient to charge the offense of aggravated kidnapping.

Appellant contends that the court committed reversible error in its charge to the jury by allowing him to be convicted of an offense not alleged in the indictment when it instructed the jury that a person

“ . . . commits the offense of Aggravated Kidnapping if he intentionally or knowingly abducts another person with the intent to:
“(1) hold him for ransom or reward;
“(2) use him as a shield or hostage;
“(3) facilitate the commission of a felony or the flight after the attempt or commission of a felony;
“(4) inflict bodily injury on him or violate or abuse him sexually;
“(5) terrorize him or a third person; or
“(6) interfere with the performance of any governmental or political function...."

Following this definition and after an instruction on the law of parties (which was known before the present code as principals), the court instructed the jury as follows:

“Now, if you find from the evidence beyond a reasonable doubt that James E. Smith, or Albert Harrison (Fat Albert), or Lonnie Bob Williams, or Caesar McKnight (Cecil), or El win Joseph Oubre (Red), or Dwight Orr (Dee Dee), in Tar-rant County, Texas, on or about the the [sic] 15th day of September, 1974, did intentionally commit the offense of Aggravated Kidnapping as hereinbefore defined, and that the defendant, Charles Wallace Smith, knew of the intent. . . ." (Emphasis Supplied)
He urges that this charge allowed the jury to find appellant guilty of aggravated kidnapping as “hereinbefore defined” and led the jury to believe that they were to follow the definition of aggravated kidnapping in paragraph I of the charge. The definition tracked the aggravated kidnapping statute and included several types of kidnapping not alleged in the indictment. The indictment alleged that appellant kidnapped the victim with the intent only to terrorize, inflict bodily injury on him, and to facilitate the commission of a felony.
Immediately after the complained of paragraph, the court submitted the following:
“Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that the defendant, Charles Wallace Smith, either acting alone or with others, on or about the 15th day of September, 1974, in the County of Tarrant, and State of Texas, as alleged in the indictment, did then and there intentionally or knowingly abduct James E. Berry by secreting or hold [sic] him in a place where he was not likely to be found or by using or threatening to use deadly force on James E. Berry and with the intent to terrorize or inflict bodily injury on the said James E. Berry or to facilitate the commission of a felony, to wit: murder of the said James E. Berry by shooting him with a gun, you will find the defendant guilty of the offense of Aggravated Kidnapping and so say by your verdict. . . . ” (Emphasis Supplied)

This paragraph in applying the law to the facts has the jury to believe beyond a reasonable doubt that appellant used or threatened to use deadly force with the intent to terrorize or inflict bodily injury or facilitate the commission of a felony as charged in the indictment. It is unlikely that the jury could have been confused by the general definition of aggravated kidnapping in paragraph I since no evidence was presented concerning the other possible types of kidnapping. This Court should consider the charge as a whole. Bailey v. State, 532 S.W.2d 316 (Tex.Cr.App.1975). We hold that the charge considered in its entirety does not present reversible error. See Williams v. State, 535 S.W.2d 352 (Tex.Cr.App.1976). Appellant was apparently satisfied with the charge because he did not object to it.

Appellant also complains for the first time on appeal of the same definition of aggravated kidnapping set out in paragraph I of the charge and of the paragraph which applied the law of parties. For the reasons set out above in the previous contention about the charge, no reversible error is shown.

Complaint is made that the trial judge erred in not granting his motion to quash the jury panel following the judge’s remarks during voir dire when he commented as follows:

“THE COURT: Now, I’ll instruct you at the outset that the fact that these defendants have been indicted by the Grand Jury is no evidence of their guilt. An indictment is no evidence. It’s just a pleading and it’s a method or manner of bringing the case to Court for trial.
* * * * * *
Is there anybody on the panel who would feel like the Grand Jury indictment would be some evidence of their guilt? In other words, do you think they must be a little bit guilty or they wouldn’t have been indicted? Anybody feel that way?
(Jurors raise hands)
“THE COURT: Well, let me explain something, first. The Grand Jury doesn’t hear the case like a Petit Jury does. The Grand Jury ordinarily just hears one side of the case, just the State’s ease and they don’t hear any Defense as a general rule. They don’t even hear the defendants tell their part of what happened. They just review the evidence and decide whether or not there is enough evidence to have a trial. They don’t make a decision on the question of guilt or innocence.”

The appellant objected to this explanation of the trial court as a comment on the failure of the defendant to testify.

In order for a remark to be reversible error as a comment on the failure of a defendant to testify, it must necessarily refer to the failure of a defendant to testify. There was no indication at this stage of the trial whether or not appellant would testify. The judge’s statement could not be taken as a comment on the subsequent failure of the defendant to testify. Myers v. State, 527 S.W.2d 307 (Tex.Cr.App.1975).

Complaint is made of the following remark made by the prosecutor during the punishment stage of the trial:

“PROSECUTOR: Let me ask you this: Mr. Hill [co-defendant’s counsel] didn’t seem to think much of my character witnesses. Just general reputation, and so all they can bring is four Foot Patrols that work down there four years, walking those streets from Sugar Hill to the end — all the way up and down Evans Street, walking them up and down talking to everybody they knew.
And then the defendants get up and say, ‘Yeah, well, they were the ones that we happen to get on the assult [sic] on a police officer with.’ They have known them for two or three years. They know their reputation down there.
And he says that is kind of sorry evidence. But, let me tell you one more thing, if I was to try to tell you what they had done down there earn their reputation, they would be jumping up objecting just as fast as if I’d try to tell you anything else that’s not in evidence and a part of this case admitted. I’m not allowed to go into specific acts of these defendants. I can’t tell you anything they did down there.”

Appellant urges that this argument permitted the jury to speculate on undisclosed prior conduct of appellant. The record reflects that during the punishment phase appellant’s counsel argued as follows:

“Let’s look at that, ladies and gentlemen. You saw the police who came up here and said these folks had a bad reputation — well, they said everybody out there had a bad reputation. And I can assure you that any defendant on trial here, they’re going to get three or four police to come in here and say they’ve got a bad reputation. That’s the way — that is their trial tactics, if you please. He talks about trial tactics. That’s the State’s trial tactics.”;

which was later followed by the statement:

“And you and I can talk about someone’s general reputation out in the hall and then I’m qualified to take the witness stand under oath and say that I have heard your general reputation for being peaceable and law-abiding is bad.”

It is clear that the prosecutor’s comments were in response to defense counsel’s remarks and as such were proper. Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973). No error is shown.

Next, appellant complains of argument made by the prosecution during the punishment stage of the trial. This argument was made after evidence had been introduced that the accomplice witness, Lonnie Bob Williams, had pled guilty upon recommendation by the prosecution for a light punishment. Williams’ attorney, Joe Johnson, Jr., a defense witness, testified about the agreement.

The prosecutor stated:

“Defendants called Mr. Johnson as their witness and I think that you can reasonably conclude that they are trying to set some sort of standard for what their clients ought to get by what this man got — Lonnie Bob Williams, got. And you notice that I went into the Defense — with the Defense under the Court’s Ruling. There are a lot of negotiations and a lot of things that I know about Lonnie Bob Williams that helped me make up my mind as to what I’m going to recommend in his case and obviously, that I think you can conclude that I think he’s different from these two in some respects. Such as his four years in Viet Nam rather than walking Evans Street. And obviously, he was less culpable of the four.
“MR. HILL: We object to that.
“MR. COOK: (Counsel for appellant) We object to that.
“THE COURT: Why?
“MR. HILL: For the reason that it’s outside the Record and there’s no testimony relative to his culpability.
“THE COURT: I believe it’s in the Record. I’ll overrule the objection.
“MR. COOK: He was the principal in the case like—
“THE COURT: Don’t make any jury speeches and I will overrule the objection.”

Earlier in the trial Williams’ attorney, Johnson, testified that Williams had served four years in Vietnam and was considered by the State to be the least culpable of the four defendants. There was no objection to the testimony until the witness was taken on voir dire. The trial court then sustained an objection to the testimony concerning the witness’ service in Vietnam as hearsay. Appellant did not ask for any instruction to the jury to disregard the testimony concerning the witness’ military record and culpability.

The gist of appellant’s ground of error on appeal is that the prosecutor’s argument was used to bolster the witness’ testimony. No such objection was raised during the trial. Nothing is presented for review. Arivette v. State, 513 S.W.2d 857 (Tex.Cr.App.1974).

Appellant complains of the following argument made by the prosecutor at the guilt stage of the trial:

“PROSECUTOR: Now, Mr. Hill finished up by saying that I would tell you that you’ve got a duty to convict these people. I tell you that you’ve got a duty to this community to see that justice is done. And justice is guilty people get found guilty.”

No objection was made by appellant to this argument. Nothing is presented for review.

The State’s motion for rehearing is granted. The judgment is affirmed.


source: Caselaw Access Project

author: CADENA, Justice.

license: Public Domain

text:
    R_ E_ M_, Appellant, v. The STATE of Texas, Appellee.
    No. 15645.
    Court of Civil Appeals of Texas, San Antonio.
    June 30, 1976.
    Rehearing Denied July 30, 1976.

      Eugene H. Lieck, San Antonio, for appellant.
    Ted Butler, Crim. Dist. Atty., Douglas C. Young, Asst. Dist. Atty., San Antonio, for appellee.
   CADENA, Justice.

Appellant seeks reversal of an order of the juvenile court of Bexar County transferring the murder charge against him to the district court so that he may be tried as an adult for such offense.

A previous order of the juvenile court transferring appellant for trial as an adult for this same offense was reversed by this Court on the ground that, prior to the hearing on the State’s motion to transfer, the juvenile court had not obtained a diagnostic study as required by See. 54.02(d) of the Tex.Family Code. R. E. M. v. State, 532 S.W.2d 645 (Tex.Civ.App., San Antonio 1975, no writ).

We consider first appellant’s point 1, asserting that the juvenile court lacked jurisdiction to entertain the transfer motion, since, prior to the time that the motion for transfer was filed, the State had filed its petition seeking to have appellant adjudged delinquent for the same offense.

Under Sec. 54.02(a)(1) and Sec. 54.02(a)(2) of the Tex.Family Code, the juvenile court may “waive” its exclusive jurisdiction over juvenile offenders and transfer a child to district court for prosecution as an adult if the child is alleged to have committed an offense of the grade of felony when he was fifteen years of age or older “and no adjudication hearing has been conducted concerning that offense.” Since no adjudication hearing has been held in juvenile court concerning the offense in question, this provision of the Family Code presents no problem.

The offense in question was allegedly committed on April 8, 1974. The petition seeking to have appellant adjudged delinquent was filed on April 19, 1974. The motion for transfer was filed on May 6, 1974. As far as possible application to this case is concerned, the State concedes that we must look to Article 30(c), Tex.Penal Code Ann. (1973), which provided:

A person who has been alleged in a petition for an adjudication hearing to have engaged in delinquent conduct . may not be prosecuted for or convicted of any offense alleged in the juvenile court petition or any offense within the knowledge of the juvenile court judge as evidenced by anything in the record of the juvenile court proceedings.

It is appellant’s contention that the provision in the Penal Code had the effect of depriving the juvenile court of jurisdiction to transfer appellant to district court for trial as an adult, since such Penal Code provision precluded prosecution or conviction of appellant for the offense of murder alleged in the adjudication petition previously filed in juvenile court.

Appellant’s contention is without merit. The Penal Code provision on which appellant relies did no more than to make available a plea in the nature of double jeopardy as a defense to a prosecution in criminal court. It does not deprive the juvenile court of jurisdiction to certify appellant for prosecution as an adult. We agree with the conclusion reached in Stockton v. State, 506 S.W.2d 918, 919 (Tex.Civ.App., Waco 1974, no writ), where it was said, “Former jeopardy is an affirmative defense. It must be specially pleaded and proved by the defendant in a criminal prosecution, else it is waived.”

Section 54.02(d) requires that the juvenile court, “Prior to the hearing” on the State’s motion to transfer, shall order and obtain “a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.”

After the first transfer order had been set aside by this Court, the juvenile judge, on March 18, 1976, ordered “a com-píete diagnostic study and social evaluation” of appellant. Appellant contends that, since this order did not call for “full investigation of the child, his circumstances, and the circumstances of the alleged offense,” there has been no compliance with the requirements of Sec. 54.02(d). We overrule this contention.

When the motion for transfer was originally filed in 1974, the juvenile judge promptly ordered the preparation of all items mentioned in Sec. 54.02(d). Except for the diagnostic study, these reports were made and delivered to the juvenile judge. Nothing in the statute requires a duplication of the reports and investigations which had been made originally. The juvenile judge, had, in fact, “ordered and obtained” the investigation which was not mentioned in the second order.

As a result of the court’s order for a complete diagnostic study, Dr. Sherman, county child psychologist, and Dr. Cameron, county psychiatrist, interviewed appellant. After Dr. Sherman had introduced himself to appellant, appellant said, “If this is for the psychological, man, I don’t want to do it. My attorney told me not to.” Appellant refused to take psychometric tests and refused to answer any questions. As a result, it was impossible for Dr. Sherman to draw any conclusions as to appellant’s “present mental status or psychological makeup.”

Dr. Cameron reported that appellant told him he would like to cooperate, but that his attorney had instructed him to answer no questions. According to Dr. Cameron, appellant was embarrassed “because he did not and would not answer even the most simple and innocuous questions,” other than to give such personal data as his name, age, height, weight, and place of birth. Dr. Sherman testified that he could not “perform a psychological evaluation” if the person to be evaluated refused to cooperate “in regard to having an interview or as to taking any tests.”

Based upon his observation of appellant, Dr. Cameron reported that appellant “appeared to be a rather alert, personable individual who was in good contact with his surroundings,” who evidenced no “overt neurotic or psychotic symptomatology” and who “is apparently able to cooperate with his attorney because he was following his instructions to the letter.” He added that appellant “appears competent and must be presumed so until otherwise established.”

In setting aside the first transfer order, we relied on the fact that the juvenile court had not obtained the “complete diagnostic study” required by the statute. But our conclusion to reverse was based on the absence of evidence showing that appellant’s refusal to cooperate and submit to interviews precluded the making of such a study. 532 S.W.2d at 648. The record now before us shows that attempts were in fact made to effect a diagnostic study, and that the limited nature of the study was due solely to appellant’s refusal to cooperate. Under these circumstances, we conclude that the reports of Dr. Sherman and Dr. Cameron, and particularly the report of Dr. Cameron, constitute as complete and adequate a “diagnostic study” as was possible under the circumstances, and that a bona fide effort was made to comply with the statute. We are not inclined to hold that the statute requires the accomplishment of that which is impossible due to appellant’s attitude.

Over appellant’s objection, the court admitted into evidence the transcript of the testimony offered at the previous hearing which resulted in the entry of the first transfer order which we set aside. Appellant contends, and we agree, that the admission of such transcript requires reversal.

It is the settled rule in this State that testimony of a witness given at a prior trial of the same case or substantially the same issues, at which prior hearing there was opportunity for cross-examination, may be introduced in evidence at a subsequent trial “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.” Houston Fire & Casualty Insurance Co. v. Brittian, 402 S.W.2d 509, 510 (Tex.1966). The State admits that there is no showing that any of the conditions precedent to the admission of the testimony given at the first hearing existed.

We see no reason why the rule should not be applied in a hearing for the purpose of determining whether a youthful offender is going to be deprived of the protection afforded by the juvenile court system. The transfer proceedings must be characterized as the most critical stage of the juvenile court process. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). The stakes in a transfer proceeding are exceedingly high. Stamm, Transfer of Jurisdiction in Juvenile Court: An Analysis of the Proceeding, Its Role in the Administration of Justice, and A Proposal for the Reform of Kentucky Law, 62 Ky.LJ. 122, 144 (1973). In view of the gravity of the determination to be made and its dire consequences on the youthful offender, it would be anomalous to relax the rules which govern the admissibility of evidence in other proceedings.

Section 54.02(e) permits the juvenile court at the transfer hearing to consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses. This provision falls short of sanctioning the admission of testimony given at a previous hearing without establishing the required predicate for the admission of such testimony.

We cannot classify the error in admitting the testimony at the prior hearing, embodied in the State’s exhibit 2, as other than prejudicial.

Section 54.02(f) requires that, in determining whether to transfer the case to criminal court, the juvenile judge consider (1) whether the offense was against person or property, with greater weight in favor of transfer given to offenses against the person; (2) whether the offense was committed in an aggressive and premeditated manner; (3) whether there is evidence on which a grand jury may be expected to return an indictment; (4) the sophistication and maturity of the child; the record and previous history of the child; and (5) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.

Section 54.02(h) requires that the juvenile court, if it certifies the child to criminal court for trial as an adult, state specifically in the transfer order “its reasons for waiver.”

The order in this case recites that the juvenile court considered all of the factors enumerated in Sec. 54.02(f). It contains findings to the effect that (1) the offense was murder, committed against the person of another; (2) the offense was committed in an aggressive and premeditated manner; (3) evidence was presented concerning the alleged offense upon which a grand jury may be expected to return an indictment; (4) the evidence and reports filed demonstrate that there is little likelihood “if [sic] any” prospect of adequate protection of the public and likelihood “or [sic] reasonable” rehabilitation of appellant by use of procedures, services, and facilities currently available to the juvenile court.

The case history submitted by the county probation office contains a statement to the effect that appellant murdered an airman. We assume that this is sufficient to support the finding that the alleged offense was of the grade of felony and was committed against the person of another. Except for State’s exhibit 2, there is no evidence whatever to support the finding that the offense was committed in an aggressive and premeditated manner. Aside from the statement contained in the report of the probation officer, there is no evidence that appellant committed the murder. Aside from State’s exhibit 2, there is no evidence to support the finding that there is little likelihood that appellant could be rehabilitated by resort to the facilities, services, and procedures presently available to the juvenile court. In fact, the report filed by the probation officer states that appellant has fully cooperated with the representatives of the juvenile office, and the recommendation contained in this report is to the effect that appellant be committed to the Texas Youth Council. That is, the report is diametrically opposed to the finding that appellant could not have been successfully rehabilitated by being treated as a juvenile.

The trial court also found that appellant is of “sufficient sophistication and maturity to have intelligently, knowingly, and voluntarily waived all constitutional and statutory rights heretofore waived” by him “and to have aided in the preparation of this [sic] defense.” This finding is somewhat difficult to understand. We believe that the requirement that the juvenile court consider the maturity and sophistication of the child refers to the question of culpability and responsibility for his conduct, and is not restricted to a consideration of whether he can intelligently waive rights and assist in the preparation of his defense. In this connection, the report of the juvenile officer states that it is “doubtful if he understands the seriousness” of his conduct.

It is clear from the record that there is no evidence, aside from State’s exhibit 2, concerning a majority of the factors which the statute requires that the juvenile court consider.

Unless we are prepared to hold that the mere fact that appellant is accused of having committed murder justifies transfer, we must conclude that the record affirmatively reflects that the admission and consideration by the juvenile court, of State’s exhibit 2 amounted to such a denial of appellant’s rights “as was reasonably calculated to cause and probably did cause the rendition of an improper judgment.” Tex. R.Civ.P., Rule 434. We are aware of the fact that in In Re Buchanan, 433 S.W.2d 787, 789 (Tex.Civ.App., Fort Worth 1968, writ ref’d, n. r. e), it was said that the “seriousness of the offense of murder is sufficient to justify the Juvenile Court in determining that the welfare of the community requires criminal proceedings” as provided in the statutory provision concerning transfer. But it should be pointed out that in Buchanan the “evidence introduced at the hearing shows without dispute that appellant shot and killed a man without provocation or cause.” 433 S.W.2d at 789. Here there is no admissible evidence to that effect. In any event, the Buchanan opinion obviously focuses on only one of the factors which Sec. 54.02(f) requires to be considered. We find nothing in the statute which suggests that a child may be deprived of the benefits of our juvenile court system merely because the crime with which he is charged is a “serious” crime. Implicit in this conclusion is a rejection of the underlying philosophy of the juvenile court system, since it is based on the assumption that children who commit “serious” crimes cannot be successfully rehabilitated. Only by indulging this presumption can it be concluded that “the welfare of the community requires criminal” prosecution of any child who commits a serious crime. If, despite the gravity of the charged offense, the child can be successfully rehabilitated by resort to the facilities available to juvenile court, it is clear that such rehabilitation will promote the “welfare of the community” at least as effectively as criminal prosecution with no prospects of rehabilitation, while, at the same time, it accords to the child the beneficial results which our Legislature has concluded can be achieved by protecting youthful offenders from the stigma and demoralizing effects of criminal prosecution.

The judgment of the trial court is reversed and the cause is remanded for further proceedings.

      . Unless otherwise indicated, all statutory references are to Tex.Family Code Ann.

      . Article 30 of the old Penal Code has been replaced by what is now Article 8.07 of the Penal Code. Article 8.07(d) now provides that no person who has been “adjudged a delinquent child” may be convicted of any offense alleged in the petition to have him adjudged delinquent or any offense within the knowledge of the juvenile judge as evidenced by the record of the juvenile proceedings.


author: KEITH, Justice.

text:
    PORT ACRES SPORTSMAN’S CLUB, Appellant, v. Kenneth MANN et al., Appellees.
    No. 7849.
    Court of Civil Appeals of Texas, Beaumont.
    July 29, 1976.
    Rehearing Denied Aug. 19, 1976.

      Anthony G. Brocato, Beaumont, for appellant.
    Clinton W. Lewis, R. N. Evans, Beaumont, for appellees.
   KEITH, Justice.

This injunction suit involves the right of the public generally to fish upon waters which now cover lands to which the other party has fee simple title to the surface estate. Shallow waters which are now prongs of Big Hill Bayou lie upon a portion of plaintiff’s land known as T. & N. O. RR Co. Survey No. 295 in Jefferson County. Defendants entered upon these waters and fished there, contending that they had, and have, a right to do so. Plaintiff brought this suit to enjoin such entry and interference with its exclusive use of the water upon its property. Defendants filed a cross-action to enjoin the interference with their use of the waters and to enjoin the further maintenance of a fence across the waters, contending that Big Hill Bayou, as it now exists over plaintiff’s land, is navigable in fact and navigable under Tex.Rev. Civ.Stat.Ann. art. 5302 (1962).

Trial was to the Court and judgment was entered denying plaintiff (our appellant) all relief and, while granting defendants (ap-pellees) some of the relief they sought, did not afford them the complete recovery they set forth in their pleadings. Extensive findings of fact and conclusions of law were filed.

PART I

We have examined very carefully the voluminous record made in the trial court and conclude that extensive quotations from the record would add little to the opinion. It is sufficient to state at this point that each of the findings of fact filed by the trial court is supported by evidence of a substantial and probative character. Consequently, such findings are controlling upon this appeal and will not be disturbed. Commercial Union Assurance Company v. Foster, 379 S.W.2d 320, 322 (Tex.1964).

The trial court found as a fact, inter alia:

[5] “As of the time this case was filed, and for many years prior thereto, Big Hill Bayou retains, and has retained, an average width of thirty feet or more its entire length and is a navigable stream within the meaning of Article 5302, of the Texas Civil Statutes.”
[6] “In 1875, at the time of the Patent to Section 295, Big Hill Bayou was not a navigable stream within the confines of Section 295, within the meaning of Article 5302, Texas Civil Statutes, nor was it a navigable stream in fact.”

The trial court concluded that plaintiff was not entitled to the injunction which would have restrained defendants from using Big Hill Bayou in Sections 295 or 296; that defendants were entitled to an injunction to prevent plaintiff from maintaining a fence across the bayou and from preventing defendants and other members of the general public the right of free passage all along Big Hill Bayou into and through Sections 295 and 296.

In its first point of error, plaintiff contends that since such waters were not navigable at the time the title to the underlying land issued from the State, their later becoming navigable could not deprive plaintiff of its title to the underlying land and the exclusive right to fish on the waters thereon. We agree with the first prong of the argument: plaintiff did not lose title to the land underlying the newly formed watercourse; but, we disagree with the second assertion: plaintiff does not have the exclusive right to fish on the waters of the bayou. Since this is dispositive of the litigation, we now give our reasons for so holding.

The trial court has found, upon competent evidence, that Big Hill Bayou, as it now exists upon Section 295, is a navigable stream under the provisions of Tex.Rev.Civ. Stat.Ann. art. 5302, quoted in the margin. However, since Section 295 was not covered by the waters of a navigable stream when patented, the title to the land has not been changed by its being submerged partially by the waters of Big Hill Bayou. Coastal Industrial Water Auth. v. York, 532 S.W.2d 949, 953 (Tex.1976), and the out-of-state cases therein cited; Diversion Lake Club v. Heath, 126 Tex. 129, 86 S.W.2d 441 (1935). See also, Fisher v. Barber, 21 S.W.2d 569 (Tex.Civ.App.—Beaumont 1929, no writ), and Fitzgerald v. Boyles, 66 S.W.2d 347 (Tex.Civ.App.—Galveston 1931, writ dism’d).

The submergence of the land in Section 295 now underlying Big Hill Bayou was caused, under our record, by the activities of men, namely the continued use of air-boats through the marsh over a long period of time. This activity was participated in by members of plaintiff’s organization as well as those of certain defendants. Witnesses on both sides testified to the long continued use of such boats and the effect on the floor of the marsh.

To this extent, the conditions found on Section 295, i. e., the creation of what is now a prong of Big Hill Bayou, is somewhat analogous to the erection of the dam in the Heath Case cited earlier. The waters now found in the bayou are public waters and, as said in Heath, supra:

“This artificial change in the river and its bed did not affect the public nature of the waters and did not take away the right of the public to use them for fishing.” (86 S.W.2d at 446)

In an article by L. Davis, “Subsidence,” 28 Baylor L.Rev. 319, 328 (1976), this question is discussed, the author stating:

“The only time the Texas Supreme Court has even indirectly addressed itself to the question of submergence was in Diversion Lake Club v. Heath. In- its decision the court seemed to accept without question the proposition that the creation of a navigable man-made lake did not operate to divest the private owners of the now submerged lands of their title to those lands. The court said: ‘This position is untenable, because the water of the lake, notwithstanding the fact that most of its bed is privately owned, is still public water.’ At the very most, this statement can only be interpreted as dictum, as the question of title to the bed of Diversion Lake was not even in issue. Defendants’ claim only extended to their right to fish in the lake and use its banks. But, even as dictum, these statements have been interpreted as an endorsement of the Fisher [v. Barber] decision by the supreme court.” (emphasis in text)

Our disposition of point one makes it unnecessary for us to discuss point two; thus, we overrule the first two points of error.

Next, plaintiff contends that Tex. Rev.Civ.Stat.Ann. art. 5414a (1962) [sometimes referred to as the “Small Bill” or the “Relinquishment Act”], “confirmed” plaintiff’s title to Section 295 and “[pjlaintiff therefore has the exclusive right to fish on the waters on such land.” Noting that the statute has been found to be constitutional [State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065 (1932)], plaintiff argues:

“Plaintiff proved and obtained findings of fact that:
“(1) There are 640 acres of land in Section 295, including the land under the waters now upon that Section;
“(2) That this is the very tract patented in 1875 by the State, to which Plaintiff holds title by a regular chain of transfers from the original grantee.
“Therefore, regardless of whether the waters are navigable, Plaintiff’s title to the underlying land has been confirmed in Plaintiff by the Statute. Fishing rights follow title to the land under the water. Fisher v. Barber, supra.

We extend Heath, to its logical end: granting that plaintiff has title underlying Big Hill Bayou as it presently exists on and across Section 295; nevertheless, plaintiff does not have the exclusive right to fish in the waters thereof. Point three is overruled.

Plaintiff presents the fourth and fifth points together contending, in essence, that there was no evidence presented to support the trial court’s finding that the waters now upon Section 295 constitute a stream as defined in Tex.Rev.Civ.Stat.Ann. art. 5302. In presenting this contention, plaintiff has chosen the hard road because a trial court’s findings are analogous to jury findings made in response to special issues submitted in the court’s charge. Nathan v. Hudson, 376 S.W.2d 856, 862 (Tex.Civ.App.—Dallas 1964, writ ref’d n.r.e.). We have examined the record carefully and find that there is some evidence to support the trial court’s finding. The last two points of error are overruled.

Having reviewed all of the points of error brought forward by plaintiff in this Part I of our opinion and finding no error, the judgment of the trial court denying to plaintiff any relief is affirmed. Part II of the opinion relates to the defendants’ cross-points of error complaining of the trial court’s refusal to grant any relief upon their cross-action. Since we are required to pass upon such cross-points, we do so in the form of an unpublished opinion handed down in accordance with Tex.R.Civ.P. 452. We find no merit to the cross-points and each is overruled for the reasons set forth in Part II of this opinion which we order not published. Tex.R.Civ.P. 452.

AFFIRMED.

STEPHENSON, J., not participating.

      . The pertinent part of the statute reads: “All streams so far as they retain an average width of thirty feet from the mouth up shall be considered navigable streams within the meaning hereof, and they shall not be crossed by the lines of any survey. All surveys not made upon navigable water courses shall be in a square, so far as lines previously made will permit.” Section 295 and those adjacent on each side are square.

      . The language used by Judge Smedley in Heath, supra, appears to have been selected with care; consequently, we consider the holdings at least as judicial dicta rather than mere obiter. See Thomas v. Meyer, 168 S.W.2d 681, 684-685 (Tex.Civ.App.—San Antonio 1943, no writ), an opinion by the late Justice Norvell.


author: DIES, Chief Justice. KEITH, Justice

text:
    EXPLORERS MOTOR HOME CORPORATION, Appellant, v. V. G. ALDRIDGE et ux., Appellees.
    No. 7825.
    Court of Civil Appeals of Texas, Beaumont.
    Aug. 12, 1976.
    Rehearing Denied Sept. 2, 1976.

      William A. Petersen, Jr., Houston, for appellant.
    Jim Tatum, Houston, for appellees.
   DIES, Chief Justice.

Plaintiffs, V. G. and Josephine Al-dridge, brought suit against Sportsman Travel Trailers Sales, the seller of a motor home, and Explorer Motor Home Corporation, the manufacturer of the motor home. Citation against Sportsman was quashed under Tex.R.Civ.P. 120a, and trial continued without it as a party. Plaintiffs sought only restitution totaling $15,158.36 based upon allegations that the motor home was defectively constructed and designed, that the home was worthless, and that it was “unfit for the purpose for which it was designed and sold.” There was no privity of contract between plaintiffs and the remaining defendant, Explorer. Trial was to a jury which found that the home was still defective and was entirely worthless for the purposes for which it was intended; that $12,500 would put the plaintiffs in their original position; and that plaintiffs had no dollar value on their use and enjoyment of the home. The trial court rendered judgment on the verdict for $12,500. Plaintiffs have filed no brief for our consideration. Thus, factual statements made in defendant’s brief will be taken as true. Tex.R. Civ.P. 419; Garza v. Salinas, 434 S.W.2d 153, 154 (Tex.Civ.App.—San Antonio 1968, no writ). We reverse and remand.

Defendant’s first six points of error basically assert that the plaintiffs could not recover since there is no privity of contract between the parties to this suit, and that there is thus no basis in law for plaintiffs’ recovery.

Plaintiffs are basically seeking recovery for the economic loss and diminution in value of the product which they purchased. On July 15,1976, this court handed down its decision in Nobility Homes of Texas, Inc. v. Shivers, 539 S.W.2d 190 (Tex.Civ.App.—Beaumont 1976), which involved the same question of law as presented here. In that case, the majority held that no privity is required in cases involving economic loss of the product itself. The rationale of this principle is that there is an implied warranty of reasonable fitness of a product as a matter of public policy, and that the reasoning formerly used for requiring privity is permeated with illogical deductions and considerations.

We think it unnecessary to restate here the detailed reasons for this ruling, and refer the parties to Nobility Homes, supra, for relevant discussions therein. The principles enunciated in Nobility Homes are adopted herein.

Points of Error 1, 2, 3, 4, and 6 are without merit and overruled.

By Point of Error 5, the defendant complains that there is no theory of law upon which the trial court could have based a judgment and that there are no pleadings to support the judgment.

The fact that we have abrogated the necessity of privity in cases such as this does not, of course, automatically permit recovery by the plaintiffs. The plaintiffs here plead for recovery based only upon the theory of restitution—there were no other alternative pleadings, such as those for damages. The only special issue submitted to the jury which inquired into the monetary award to be given to the plaintiffs was that which asked which sum of money would put the plaintiffs in the position as they originally stood. This was proper under restitution theory since “[rjestitution is the amount which would put plaintiff in as good a position as he would have been in if no contract had been made. It restores to plaintiff the value of what he parted with in performing the contract.” Coon v. Schoeneman, 476 S.W.2d 439, 441 (Tex.Civ.App.—Dallas 1972, writ ref’d n.r.e.); 5 Cor-bin, Contracts § 996 (1964).

This is not to be confused with the theory of “damages”, which is to put the plaintiff in as good a position had the contract been performed. Id., at 441. Thus, restitution implies restoration of the status quo. Goff v. Graham, 306 N.E.2d 758, 767 (Ind.App.1974); Antoine v. McCaffery, 335 S.W.2d 474, 489 (Mo.App.1960).

But none of the parties here appear to fully comprehend the various elements of restitution. Besides the fact that the theory’s ultimate purpose is to put the plaintiff in as good a position as he was in prior to the “contract”, it must also be remembered that:

“Restitution is not available as a remedy for a breach by defective or incomplete performance if the injured party accepts performance with knowledge of the defects or incompleteness, unless the performance accepted by him is so connected with his own land or chattels that its rejections would require their abandonment or expensive alteration.” Restatement of Contracts § 353 (1932).

See also Comment (a) under § 353. The illustrations under § 353 give the following relevant examples:

“2. A contracts to sell goods to B, giving a warranty of quality, and the price being paid in advance. In performance of this contract, A tenders goods of such bad quality that B is privileged to reject them; but with knowledge of the defect, B accepts the goods. The remedy of restitution is not available to B.”
“6. A contracts to install in B’s house a furnace of a specified capacity. B pays half the price in advance. After completion, B uses the furnace; but it is so defective as to prove a total breach by A. The use by B is not such an acceptance as to deprive him of the remedy of restitution.”

Thus, distinctions are made as to whether the entire price has been paid, and as to what constitutes “use” by the consumer. No such inquiries were submitted to the fact finder in the case at bar.

This concept is incorporated into the law of this State in Texas’ Commercial Code. “[I]f the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may (1) reject the whole.” Tex. Bus. & Comm.Code § 2.601 (1968). But “[Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.” Tex.Bus. & Comm. Code § 2.602(a) (1968).

There is no evidence, and plaintiffs have not asserted, that they ever rejected the motor home by giving the defendant seasonable notification. Plaintiffs purchased the home in July 1969 and ceased to use it in March 1971 — a period of almost two years., During this time, the home was returned several times to the defendant for repairs. But, the defendant also states that the plaintiffs put 14,000 miles on the motor home; took two trips to Shreveport, Louisiana, and a trip to Colorado before finally driving it to California where the defendant was to attempt to correct the defects. Plaintiffs offered for the first time in their original petition to return the home, but have as yet not done so. No issues were submitted on the question of acceptance. For almost two years, the plaintiffs exercised dominion and control over the home which constituted incidents of ownership.

One who exercises dominion over or alters goods in their possession thereby accepts the goods under Texas Business and Commerce Code. Bowen v. Young, 507 S.W.2d 600, 603 (Tex.Civ.App.—El Paso 1974, no writ) and the cases cited therein. Bowen held that there was acceptance as a matter of law where the plaintiff moved into the mobile home for over a year and attempted to repair the home by replacing the heating and air conditioning units. Id., at 606. See 67 A.L.R.3d 363, 385, § 7(a) (1975) which predicates the annotation upon Bowen v. Young, supra. We do not have the situation here where the buyer continued to occupy the home after giving notice of rejection as in Minsel v. El Rancho Mo bile Home Center, Inc., 32 Mich.App. 10, 188 N.W.2d 9 (1971).

The notice envisioned by Tex.Bus. & Comm.Code § 2.602 must be clear and unambiguous. The evidence which is before us supports but one conclusion: There was no rejection within a reasonable time. Where reasonable minds cannot differ and only one conclusion can be drawn from the evidence, the question of acceptance is one for the court and not for the jury. Necho Coal Company v. Denise Coal Company, 387 Pa. 567, 128 A.2d 771, 773 (1957).

We hold that as a matter of law, plaintiffs did not seasonably reject the motor home and accepted it thereby. Accord: Bowen v. Young, supra; International Paper Co. v. Margrove, Inc., 75 Misc.2d 763, 348 N.Y.S.2d 916 (1973) (where a delay of five months was held to constitute acceptance); Robinson v. Jonathan Logan Financial, 277 A.2d 115 (D.C.App.1971) (which held that a delay of six months was acceptance); Necho Coal Company v. Denise Coal Company, supra (which ruled that a nine months’ delay was acceptance as a matter of law).

Where there is an acceptance, plaintiffs are relegated to recover on the theory of “damages”. Hendricks v. Moore, 156 Tex. 570, 297 S.W.2d 811, 813 (1957). As previously mentioned, there was no pleading for “damages” by plaintiffs. Plaintiffs may therefore not recover upon the sole theory of restitution.

Defendant’s Point of Error 5 is sustained.

By Points of Error 17 and 18, defendant claims that there is insufficient evidence to support the jury’s finding that no dollar value could be placed upon the use and enjoyment of the motor home by the plaintiffs, and that such finding is against the great weight and preponderance of the evidence.

There was much testimony that the home was poorly constructed and unfit for the purpose for which it was designed and sold. The jury found this to be the case. But, we do not think that the evidence supports the finding that plaintiffs had no use and benefit from the vehicle. They did take at least four trips in the motor home, as noted earlier, and put some 14,000 miles on it. It is a rule that even where a party is not required to return possession of a defective product to the seller/manufacturer, the return of the purchase price or its equivalent must include the value of any benefit that he derived from possession of the goods. Villarreal v. Boggus Motor Company, 471 S.W.2d 615, 619 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n.r.e.).

Under these facts, the finding to Special Issue 4 was against the great weight and preponderance of the evidence and defendant’s Point of Error 18 is sustained.

Defendant in Point of Error 32 puts forth another facet in this case. It complains that the judgment below fails to dispose of the motor home itself. As we presently understand, the trial court’s ruling, plaintiffs are to recover not only the approximate price which they paid for the home, but are to retain possession of it also. Such result would obviously result in unjust enrichment for them. They may not obtain their “purchase price” and keep the vehicle. Such a result is contrary to one of the basic tenets of restitution: restoration to the plaintiffs the value or thing which they parted with. See 5 Corbin, Contracts § 1112 (1964). Such issue should have been addressed and considered by the trial court. Defendant’s Point of Error 32 is sustained.

We note here that the result in this case is not to be confused with Nobility Homes, Inc. v. Shivers, supra. The plaintiff there was seeking damages and the difference in value between the purchase price and the market value of the mobile home at the time of purchase. Plaintiffs here sought only restitution, with no other theories being plead. The question of acceptance has also been injected into this case.

Because of the errors of the trial court, this case must be reversed. In the interest of justice, this case is remanded and is not rendered. Uselton v. State, 499 S.W.2d 92 (Tex.1973). It is apparent that the error found by this court resulted because of the uncertainty as to the rules of law that the courts of this state have applied in cases in which there is no privity of contract in products liability cases. Reference is here made to the opinion of this court in Nobility Homes of Texas, Inc. v. John W. Shivers, supra.

REVERSED and REMANDED.

KEITH, Justice

(dissenting).

“Color me amazed."

On July 15, 1976, in Nobility Homes of Texas, Inc. v. Shivers, 539 S.W.2d 190, the majority of this court attempted to change the well-settled law in this state requiring privity of contract when there is no injury to person or property. Today, the majority adheres to its erroneous declaration of the law in Shivers, and I remain firmly convinced that, for the reasons set out in the dissent in Shivers, the pronouncement is wrong.

However, if the majority insists on being wrong, they should at least strive to be wrong with consistency, and avoid being wrong in a different way and for different reasons each day. Until I reached the last paragraph of the opinion, it appeared that the majority was going to arrive at the correct result, a reversal and a rendition of the judgment. Indeed, the portion of the opinion relating to the Commercial Code is a correct exposition of the law. Yet, inexplicably, plaintiffs are to be given another bite at the apple when they have conclusively established — upon the trial the record of which we now review — that they may not prevail upon another trial.

Admittedly, plaintiffs have driven the vehicle more than fourteen thousand miles; they have made one or more trips to Louisiana, Colorado, and California — and those places are far distant from Harris County, Texas — during the two years they have exercised dominion and control over the vehicle. And, they still have the vehicle in their possession5A They may not, therefore, under our record, recover on another trial. See Bowen v. Young, 507 S.W.2d 600, 602—605, 67 A.L.R.3d 354, 357-360 (Tex.Civ.App.—El Paso 1974, no writ), cited, but not followed, by the majority. See also the cases cited in Bowen and in the annotation following Bowen, 67 A.L.R.3d 363, et seq.

What is even more inexplicable is the fact that the new trial ordered is said to be “[i]n the interest of justice.” This sympathetic relief is ordered for litigants who failed to file a brief or appear in this Court upon submission of the cause. Ordinarily, such litigants are not afforded such solicitous treatment. See and compare Crawford v. Modos, 465 S.W.2d 220, 222-223 (Tex.Civ.App.—Beaumont 1971, writ dism’d).

Ostensibly, this extraordinary relief is granted because of an alleged “uncertainty as to the rules of law” applicable to the case. I submit that this is an excuse without any foundation. There was no uncertainty in the law before the majority wandered astray in Shivers, supra. See, e. g., the list of cases cited by Judge Steger in Cloer v. General Motors Corporation, 395 F.Supp. 1070, 1071-1072 (E.D.Tex.1975), and those cited in Bowen v. Young, supra.

While I join in a reversal of the judgment of the trial court, I dissent from a remand of the cause for a new trial.

      An expression sometimes used by Presiding Judge Onion. See, e. g., Aldrighetti v. State, 507 S.W.2d 770, 775 (Tex.Crim.App.1974); Taylor v. State, 508 S.W.2d 393, 397 (Tex.Crim.App.1974).


author: McCLOUD, Chief Justice.

text:
    A. F. CONNER & SONS, INC., Appellant, v. TRI-COUNTY WATER SUPPLY CORPORATION, Appellee.
    No. 4866.
    Court of Civil Appeals of Texas, Eastland.
    Sept. 2, 1976.
    Supplemental Opinion Sept. 23, 1976.
    Rehearing Denied Sept. 23, 1976.

      John Fulbright, Wiley Stem, Jr., Wilson, Olson, Stem & Farr, Waco, for appellant.
    Leonard L. Gorin, Clark, Fisher, Gorin, McDonald & Ragland, Waco, for appellee.
   McCLOUD, Chief Justice.

Tri-County Water Supply Corporation, a non-profit corporation, sued A. F. Conner & Sons, Inc., and Fidelity & Deposit Company of Maryland, the surety on Conner’s performance bond, for damages resulting from Conner’s failure to perform its obligations under a written contract to construct a water distribution system. The jury found that the contract was not substantially performed because Conner used material and workmanship which were not of good quality in constructing the pipeline. Judgment was rendered for plaintiff against defendants for $389,815.85, plus prejudgment interest of $75,282.25, for a total of $465,-098.10. The judgment provides that Fidelity & Deposit recover over against Conner. Defendants have appealed.

Conner contracted to build a rural water distribution system containing five plants or pump stations and approximately 178 miles of pipeline. The pipeline was to be constructed of PVC (poly vinyl chloride) pipe varying in size from one inch to eight inches. The pipe was put together with “glue” or “cement” in sections from twenty to thirty feet in length. Tri-County paid Conner $522,480.13 for constructing the water system. $389,815.85 of the contract figure represented the cost of the pipeline.

By the time of trial approximately 1,000 leaks had been repaired since the completion of the system. Most of these leaks were pipeline leaks, but several were “adapter” leaks. Plaintiff contended the pipeline had no market value and the leaks were caused by poor workmanship and material. Defendants argued the leaks resulted from improper design, hot water, excessive pressure, and improper maintenance.

In special issues 1 and 2 the jury found that Conner used materials and workmanship in construction of the pipeline which were not of good quality.

Special issue 3 and the answer thereto are as follows:

“ISSUE NO. 3:
Do you find from a preponderance of the evidence that the contract by A. F. Conner & Sons, Inc. to construct the water distribution system in question was not substantially performed because of the use of material and workmanship that were not of good quality in the construction of the pipeline (if you have so found)?
By ‘SUBSTANTIALLY PERFORMED’ as used in the above issue, is meant that there must have been performance of all material and essential particulars required by the written contract, and permits only such deviations and omissions as can be corrected without great expense and which do not impair the water distribution system in the performance of the purpose for which it was intended.
Answer ‘WE FIND THE CONTRACT WAS NOT SUBSTANTIALLY PERFORMED,’ or ‘WE DO NOT SO FIND’.
ANSWER: We find the contract was not substantially performed.”

Conner argues the definition given is erroneous because it does not take into consideration defects which might be repaired at small cost or unessential defects or omissions which could be remedied without impairment of the water distribution system as a whole.

The court in Hutson v. Chambless, 157 Tex. 193, 300 S.W.2d 943, 945 (1957) said:

“ ‘Where it is necessary, in order to make the building comply with the contract, that the structure, in whole or in material part, must be changed, or there will be damage to parts of the building, or the expense of such repair will be great, then it cannot be said that there has been a substantial performance of the contract. Generally, where there has not been such substantial performance, the measure of the owner’s damage is the difference between the value of the building as constructed and its value had it been constructed in accordance with the contract. Such a recovery would be just to both parties. It is manifest that to measure the owner’s damage by the cost necessary to make the building conform to the contract would often be an injustice, because in many instances such cost would amount to almost as much as the original contract price.’
That rule was followed in Totten v. Houghton, Tex.Civ.App., 2 S.W.2d 530, no writ history, and authorities therein cited. It is announced in practically the same language in 9 American Jurisprudence, Building and Construction Contracts, Sec. 43, p. 33. Many authorities supporting the rule are annotated in 23 A.L.R. 1436, 38 A.L.R. 1383, and 65 A.L.R. 1298.”

In County of Tarrant v. Butcher & Sweeney Construction Company, 443 S.W.2d 302, 307 (Tex.Civ.App.—Eastland 1969, writ ref. n. r. e.), this court stated:

“The rule is stated in McCormick on Damages, 1935, Section 168, at pages 648-649, as follows:
‘In whatever way the issue arises, the generally approved standards for measuring the owner’s loss from defects in the work are two: First, in cases where the defect is one that can be repaired or cured without undue expense, so as to make the building conform to the agreed plan, then the owner recovers such amount as he has reasonably expended, or will reasonably have to spend, to remedy the defect. Second, if, on the other hand, the defect in material or construction is one that cannot be remedied without an expenditure for reconstruction disproportionate to the end to be attained, or without endangering unduly other parts of the building, then the damages will be measured not by the cost of remedying the defect, but by the difference between the value of the building as it is and what it would have been worth if it had been built in conformity with the contract.’
To the same effect is the Restatement of Contracts, Section 346(l)(a)(II); J. E. Hollingsworth & Co. v. Leachville Special School Dist., 157 Ark. 430, 249 S.W. 24; Campbell v. Koin, 154 Colo. 425, 391 P.2d 365; Boggs v. Shadburn, 65 Ga.App. 683, 16 S.E.2d 234; H. P. Droher & Sons v. Toushin, 250 Minn. 490, 85 N.W.2d 273; 5 Corbin on Contracts, 1964, Section 1090.”

The submitted definition of “Substantially Performed” specifically permits deviations and omissions which can be corrected without great expense and which do not impair the water distribution system. Conner’s point is overruled.

Special issues 8 and 9 and the jury’s answers thereto are as follows:

“ISSUE NO. 8:
What do you find from a preponderance of the evidence would have been the reasonable market value on December 12, 1970, of the water distribution system built by defendant A. F. Conner & Sons, Inc. if the pipeline of said system had at that time contained only material and workmanship of good quality?
Answer in dollars and cents.
ANSWER: $522.480.13.”
“ISSUE NO. 9:
What do you find from a preponderance of the evidence was the reasonable market value on December 12, 1970, of the water distribution system built by defendant A. F. Conner & Sons, Inc., in the actual condition which such system then was containing the material, if any, and workmanship, if any, that were not of good quality which had been used by defendant A. F. Conner & Sons, Inc. in the construction of the pipeline in question?
Answer in Dollars and Cents.
ANSWER: $132.664.28.”

Fidelity argues the court erred in using the December 12, 1970 date because the correct measure of damages is the difference in value as of the time of trial and the value had the system been constructed in accordance with the contract. Fidelity has no point or assignment of error raising an objection that issues 8 and 9 should have used the time of trial as the proper date. Therefore, the argument and authorities cited for that contention are inapplicable.

Fidelity further argues the certification of completion was dated June 4, 1970, rather than December 12, 1970. Conner repaired, at its expense, all leaks in the system until December 12,1970. Since that date Tri-County has repaired all leaks. Fidelity has failed to show reversible error.

Defendants urge that the court erred in admitting the testimony of William Garner given at a former trial of the case. We disagree.

In the first trial Garner testified that the pipeline had no value because of the excessive number of leaks. This testimony was read to the jury in the instant trial. The testimony of Garner at the former trial was given on the same issues, before the same parties, and full opportunity existed for cross-examination.

The rule to be followed was recently announced in Hall v. White, 525 S.W.2d 860, 862 (Tex.1975) as follows:

. . . The only question is the unavailability of the witness. Former testimony is not admissible if a witness is available at the subsequent trial. The party offering the former testimony must therefore prove unavailability, which means in Texas ‘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, 153 S.W.2d 681, 697 (1941); Houston Fire & Casualty Insurance Co. v. Brittian, 402 S.W.2d 509 (Tex.1966).” (Emphasis added.)

Garner was hospitalized at the time of trial. He was scheduled for immediate lumbar disc surgery. Plaintiff properly proved that the witness was “physically unable to testify”. Missouri-Kansas-Texas Railroad Co. v. Bush, 310 S.W.2d 404 (Tex.Civ.App.—Austin 1958, writ ref. n. r. e.); Harris v. Reeves, 421 S.W.2d 689 (Tex.Civ.App.—Waco 1967, writ ref. n. r. e.). Defendants’ reliance upon Houston Fire & Casualty Insurance Co. v. Brittian, 402 S.W.2d 509 (Tex.1966) is misplaced. There the court noted that none of the exceptions permitting the introduction of testimony given at a former trial existed. Neither Hall v. White, supra, nor White v. Natural Gas Pipeline Co. of America, 444 S.W.2d 298 (Tex.1969) support defendants’ argument. Those cases were concerned with the “beyond the jurisdiction” of the court exception and not the “physically unable to testify” exception.

Defendants next complain of the trial court’s sustaining plaintiff’s objections to Conner’s offer into evidence of two exhibits purporting to show the location of certain leaks. The leaks were designated in the exhibits by “X-marks” made by Aubrey and Dean Conner after studying the notebooks of Leon Afinowicz and statements for leak repairs sent to Conner. The exhibits did not include all of the leaks. The exhibits did not purport to show any of the 450 leaks repaired by Conner prior to December 12, 1970. Also, the exhibits did not show the “adapter” leaks repaired by Afinowicz.

After the court sustained plaintiff’s objections counsel for Conner fully questioned the witness, Aubrey Conner, before the jury. The witness testified at length regarding the exhibits and the location of the leaks as reflected by the exhibits.

We think the admission or exclusion of the exhibits was within the discretion of the court and the exclusion did not constitute reversible error. Champlin Oil & Refining Co. v. Chastain, 403 S.W.2d 376 (Tex.1965).

Defendants contend the court erred in refusing their requested special issues inquiring if all or a portion of plaintiff’s damages were caused by excessive water temperature, excessive water pressure, improper design, improper inspection, or improper maintenance.

The contract contained a specific provision requiring that “Both workmanship and materials shall be of good quality.” In special issues 1 and 2 the jury found Conner used poor workmanship and materials in the construction of the pipeline. In special issue 3 the jury found that because of the poor workmanship and materials the contract was not substantially performed. Special issues 8 and 9 asked the jury to find the difference in the as contracted and as built market value of the water system. Special issue 10 asked the jury to find the reasonable cost of repairing the pipeline. The jury answered $389,815.85 to issue 10. Special issue 10, however, became an immaterial issue in view of the jury’s answer to special issue 3. McDonald, Texas Civil Practice, Vol. 4, .§ 17.31. We think the court submitted the controlling issues Hutson v. Chambless, 157 Tex. 193, 300 S.W.2d 943 (1957); Totten v. Houghton, 2 S.W.2d 530 (Tex.Civ.App.—Eastland 1927, no writ); Tarrant County v. Butcher & Sweeney Construction Co., 443 S.W.2d 302 (Tex.Civ.App.—Eastland 1969, writ ref. n. r. e.).

Under the contract Tri-County was responsible for the “adequacy of the design” provided Conner “has complied with the requirements” of the contract. The contract further provided the burden of proof of “compliance” was upon Conner to show it had “complied with said requirements of the contract”. Neither Conner nor Fidelity tendered an issue seeking a jury determination as to Conner’s compliance.

Many of the requested issues seek to determine if the “leaks” were caused by hot water, high pressure, or improper operation. Other requested issues seek to determine if plaintiff’s acts caused “pipe joints” to fail.

We have examined the requested issues and hold the court did not err in refusing the tendered issues. The issues were either evidentiary, immaterial, raised legal rather than fact questions, inquired of matters excluded by contract or were inferential rebuttal issues. See: Houston Fire & Casualty Insurance Co. v. Riesel Independent School District, 375 S.W.2d 323 (Tex.Civ.App.—Waco 1964, writ ref. n. r. e.); San Augustine Independent School District v. Freelove, 195 S.W.2d 175 (Tex.Civ.App.—Beaumont 1946, writ ref. n. r. e.); City of Houston v. Lurie, 148 Tex. 391, 224 S.W.2d 871 (1949); Triton Oil & Gas Corp. v. Moran Drilling Company, 509 S.W.2d 678 (Tex.Civ.App.—Fort Worth 1974, writ ref. n. r. e.); Winandy Greenhouse Construction v. Graham Wholesale Floral, Inc., 456 S.W.2d 470 (Tex.Civ.App.—Fort Worth 1970, no writ); Neale v. Kirkland, 486 S.W.2d 165 (Tex.Civ.App.—Dallas 1972, no writ); and Neuhoff Brothers Packers, Inc. v. McCauley, 399 S.W.2d 929 (Tex.Civ.App.—Waco 1966, writ ref. n. r. e.).

Defendants urge the court erred in awarding plaintiff prejudgment interest. We disagree. The court in Texas Company v. State, 154 Tex. 494, 281 S.W.2d 83, 92 (1955) said:

“. . . interest as damages is recoverable as a matter of law when the principal damages are fixed by conditions existing at the time the injury is inflicted.”

The jury found in special issues 1 and 2 Conner used poor workmanship and materials in constructing the pipeline. In issues 8 and 9, the jury determined the damages suffered as of December 12, 1970. We hold the court properly awarded prejudgment interest. See Watkins v. Junker, 90 Tex. 584, 40 S.W. 11 (1897); Smart v. United States Fidelity & Guaranty Co., 513 S.W.2d 291 (Tex.Civ.App.—Waco 1974, writ ref. n. r. e.); McDaniel v. Tucker, 520 S.W.2d 543 (Tex.Civ.App.—Corpus Christi 1975, no writ); and Melody Home Manufacturing Company v. Morrison, 502 S.W.2d 196 (Tex.Civ.App.—Houston (1st Dist.) 1973, writ ref. n. r. e.).

Defendants contend the jury’s answer to special issue 9 is against the great weight and preponderance of the evidence, and the $389,815.85 judgment based on issue 9 is excessive. We agree.

Plaintiff contended and its witnesses testified that the 178 mile pipeline which cost $389,815.85 had no market value. The jury answered special issue 9 to the effect the water system as built had a market value of $132,664.28. This was the contract price of the system excluding the pipeline.

In reaching the conclusion that the pipeline portion of the water system had “O” market value, plaintiff’s witnesses, who were interested witnesses, concluded that the leaks were continuing to develop “throughout” the 178 mile line, and the only feasible way to correct the problem was to abandon the line and parallel it with a new 178 mile line.

It is uncontroverted that any pipeline the size of the Tri-County line will normally develop some leaks. It is also conceded by defendants that the Tri-County line developed an excessive number of leaks.

Conner repaired the leaks until December 12, 1970, and after that time the leaks were repaired by Leon Afinowicz who was a part-time employee of plaintiff. Afinowicz kept a notebook which contained information regarding each leak repaired. He stated that he had repaired “approximately” 600 leaks, but that “a hundred or a hundred and fifty” were adapter leaks. Plaintiff’s witness, James Duff, the engineer who prepared the plans for the system and supervised the construction, testified that the “adapter” leaks did not substantially affect the value of the system. After reviewing Afinowicz’s notebooks and leak repair statements sent to the contractor, Aubrey and Dean Conner located certain line leaks on the “as built” plans from the time plaintiff started repairing the leaks until the time of trial. This was approximately a three-year period. The “as built” plans, which were prepared by Duff, contained 36 sheets which showed the location of various segments of the pipeline. The miles of pipeline depicted varied on each sheet from approximately 2.23 miles shown on sheet 4 to 7.12 miles shown on sheet 22. Aubrey Conner testified that they were able to locate 382 line leaks by using the notebooks and statements. He stated they did not locate adapter leaks, but did specifically locate each line leak.

Aubrey Conner’s testimony, which was not directly refuted, shows that in area 5 of the water system, which contains approximately 18 miles, there had only been 3 leaks in the 3 year period. Also, during the year before trial some 50.5 miles of the pipeline had no leaks, and an additional 56.09 miles, had only 12 leaks. This evidence shows that there were only 12 leaks in the 106.59 miles of pipe during the one year period before trial. There is evidence the reasonable cost for repairing a leak is about $50. We note further that from Aubrey Conner’s testimony, which was not disputed, that 87 of the 382 leaks occurred in a 6.49 mile span, and 101 of the 382 leaks occurred in an 8.15 mile span of the pipeline. We also note from Aubrey Conner’s testimony that only sheets 12 and 31, depicting approximately 8.79 miles of pipeline, showed no leaks during the 3 year period. Plaintiff made no attempt to specifically locate individual leaks, but relied upon generalized statements that the leaks were located throughout the pipeline.

Plaintiff was losing approximately 62% of its water. This is an abnormal loss. Leaks were continuing to develop at the time of trial. The repair of leaks is costly. The evidence unmistakably reflects that sections of the pipeline should be replaced. We think, however, the jury’s finding, even though supported by expert opinion testimony, that the entire 178 mile pipeline has no market value, is against the great weight and preponderance of the evidence. The water system is functioning and has grown considerably in number of customers since its inception.

We have considered all the evidence and concluded that the jury’s finding in special issue 9 is against the great weight and preponderance of the evidence and the $389,815.85 judgment based on such finding is excessive. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Since the only reason for reversal is the excessiveness of the verdict, we are required to indicate the amount by which we consider the verdict excessive and give plaintiff a reasonable time within which to file a remittitur of such excess. Carter v. Texarkana Bus Company, 156 Tex. 285, 295 S.W.2d 653 (1956). We think the damages awarded by the jury are excessive by $100,-000. The prejudgment interest attributable to such $100,000 excess is also excessive. •

The judgment of the trial court will be affirmed if plaintiff will file in this court within thirty days hereof a remittitur in writing of $119,542.33. If such remittitur is not so filed, the judgment will be reversed and the cause remanded for a new trial.

Affirmed on condition of remittitur.

SUPPLEMENTAL OPINION

Tri-County Water Supply Corporation filed a remittitur of $119,542.33 on September 20, 1976, in compliance with the suggestion of a remittitur by this Court. The judgment of the trial court is reduced by the amount of such remittitur, and as so modified, the judgment of the trial court is affirmed.

Remittitur filed. Judgment modified and as modified, affirmed.