author: HOGAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Richard Earl BEEMER, Defendant-Appellant.
    No. 9749.
    Missouri Court of Appeals, Springfield District.
    June 30, 1976.

      Michael A. Jones, Law Offices of Arch M. Skelton, Springfield, for defendant-appellant.
    John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   HOGAN, Judge.

Richard Earl Beemer appeals from a judgment and sentence of one year’s confinement in the Greene County Jail for stealing by deceit.

The defendant, Robert L. Kinney and Kinney’s wife entered into a written contract, the terms of which were that defendant was to attach a 12’ x 15’ “family room with a fireplace” to the Kinney residence. The Kinneys agreed to pay defendant the sum of $3,820 for the construction of the addition, payable one-third upon execution of the contract, one-third when the addition was “under roof” and the balance on completion. The agreement specifically provided that the defendant was to pay for all labor and materials.

The work went slowly, the defendant’s workmanship, or that of his employees, was poor, but Kinney and his wife' made the first two payments. Inferably because of Mr. Kinney’s extreme dissatisfaction with the defendant’s work, the defendant agreed to accept less than the original price in satisfaction of the Kinneys’ obligation. On July 17, 1973, Kinney agreed to pay the defendant $1,073.33 as a final payment if the defendant would sign a written statement that all materialmen had been paid. The defendant executed a written statement that he had “paid for all the material that was used on Mr. Robert L. Kinney house located at 1318 E. Sunset, Springfield, Missouri”, and Kinney delivered his check in the amount of $1,073.33. Kinney testified that he would not have delivered this check if the defendant had not signed the statement.

Thereafter, Kinney received notices from three materialmen that some of the bills for materials that went into the addition had not been paid. The State had testimony from three of these suppliers that at the time of trial, April 15, 1974, they still had not been paid for some of the materials which went into the Kinney project. It did not appear, on the other hand, that any mechanic’s lien had been perfected against the Kinney property or that the Kinneys had discharged any of the bills due for materials when the case was tried.

Defendant’s evidence, capsulized, was that his former secretary neglected his office files and had failed to include the unpaid bills in the Kinney file. The defendant did not deny signing the statement prepared by the Kinneys, but testified that he relied on his inadequate and incomplete files which showed no bills for materials due on the Kinney project. A file folder introduced by the defendant tended to support his testimony. Rejecting defendant’s testimony, the jury found defendant guilty and imposed the sentence indicated.

On appeal, the defendant has briefed and argued four points. The “points relied on” are rather abstractly stated but the brief is not so deficient as to justify a ruling that counsel has violated Rule 84.04(d), V.A.M.R. We shall consider the appeal on its merits.

A brief preliminary observation is required in connection with the defendant’s first two points. The defendant contends 1) that the amended information upon which he was tried is fatally defective because it does not describe the “alleged encumbrances” with particularity sufficient to inform him fully of the “facts” of which he stands accused; 2) that his motion for new trial should have been granted because there was no proof that the Kinney property was subject to any perfectible material-man’s lien. The fundamental defect in both points is that the defendant was not charged with having represented that there were no valid materialmen’s liens against the Kinneys’ property; he was charged with having falsely represented that he had paid for all the materials used in construction of the family room. The State’s proof amply demonstrated that at the time the representation was made and nearly a year later, the defendant had not paid for the materials used. The State was not required to go further and show the existence of a valid materialman’s lien against the Kinney property. See People v. Hand, 127 Cal.App. 484, 16 P.2d 156, 157-158[2-4] (1932); People v. Pearson, 69 Cal.App. 524, 231 P. 612, 614[3] (1924); Winnemore v. State, 150 So.2d 277, 280[4, 5] (Fla.App.1963).

The contention that the amended information is fatally defective rests on the assumption that the conduct relied on as constituting deceit is not charged with sufficient particularity. It is true that the offense of stealing by deceit may not be generically charged, State v. Kesterson, 403 S.W.2d 606, 611[3, 4] (Mo.1966), and the degree of particularity required in describing the deceit used is not susceptible of precise formulary definition, State v. Kesterson, supra, 403 S.W.2d at 610; State v. Perkins, 380 S.W.2d 433, 435 (Mo.1964), but as a general rule, if the false pretense is in writing or consists wholly or in part of the use of a written instrument, the writing need not be set out in haec verba unless some question turns upon the form or construction of the instrument, or some legal description of the instrument is given in the information, the accuracy of which may be material for the court to determine. 35 C.J.S. False Pretenses § 42, at 872 (1960). The merits of this case do not turn upon the efficacy of an instrument required to be in a particular form or a document calling for the use of words of art; here, the false representation consisted of a simple four-line statement and the charge that defendant stole the Kinneys’ money “by representing . . . that all material expenses had been paid for in the construction of an addition to” the Kinney property is sufficient even though it is unartful and ungrammatical. H. Kelley, Criminal Law and Practice § 697, at 661-662 (L.Ed.1928).

A further claim of error is that the trial court erroneously admitted evidence of other, similar transactions too remote to have a logical bearing on the defendant’s guilt. The point does not require extensive discussion because it is not properly preserved for review. The only objection made to the evidence now complained of was a diffuse, inclusive preliminary motion to exclude or suppress — a so-called “motion in limine” — which the trial court effectively denied by stating that it would “rule it as we go along.” Upon trial, the evidence of other transactions came in without objection (except hearsay objections, which were sustained) and defendant’s counsel cross-examined each witness concerning the other, similar transaction to which the witness testified. Counsel was not relieved of the duty to object to inadmissible evidence by presenting his objections “in limine” nor by the court’s ruling on his motion; as the trial court stated, it could not anticipate what the evidence would be. Having failed to object timely and specifically to the evidence of other transactions as it was received, defendant may not now complain of the admission of that evidence. State v. Rennert, 514 S.W.2d 579, 580[2] (Mo.1974); State v. Hepperman, 349 Mo. 681, 698[9], 162 S.W.2d 878, 887[14, 15] (1942); State v. Ealey, 519 S.W.2d 314, 320[5] (Mo.App.1975).

The final assignment of error for discussion is defendant’s assertion that “the conviction is unlawful because it is not a criminal offense to obtain by false representations payment of a debt already due.” This point is so cryptically stated it is difficult to follow, but examination of the “argument” part of the brief leads us to believe the defendant contends he cannot be held guilty of stealing by deceit because he received nothing from the Kinneys which was not lawfully due.

It is true as a general proposition that a defendant who receives nothing of value by reason of a false representation cannot be held guilty of stealing by deceit, State v. Fenner, 358 S.W.2d 867, 873[10] (Mo.1962); State v. Weiler, 338 S.W.2d 878, 880[2] (Mo.1960); State v. Martin, 167 Mo.App. 346, 347, 151 S.W. 504 (1912), but that general principle has no application here. The Kinneys’ duty to pay the defendant was expressly conditioned upon the defendant’s payment for all labor and materials used in construction of the addition to the Kinney residence. Defendant expressly represented in writing that he had paid for all the materials used, and Mr. Kinney testified he would not have paid the final installment if defendant had not made that representation. From the evidence presented, a jury could reasonably have found that the defendant’s representation was false. The defendant therefore received something of value — money—by reason of his representation. There is no merit in this point. It was for the jury to decide whether or not defendant’s representation was made with the intent to defraud the Kin-neys. See State v. Page, 186 S.W.2d 508, 506[6] (Mo.App.1945).

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: TITUS, Judge.

license: Public Domain

text:
    Franz PENNER and Marian Penner, Plaintiffs-Appellants, v. Kenneth WHITESELL, Jr., et al., Defendants-Respondents.
    No. 9950.
    Missouri Court of Appeals, Springfield District.
    June 30, 1976.
    Dan K. Purdy, Osceola, for plaintiffs-appellants.
    Ray Fowler, Fowler & Short, El Dorado Springs, for defendants-respondents.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   TITUS, Judge.

Plaintiffs say they have a son-student in the R-2 School District High School at El Dorado Springs and that defendants (members of the board of education, principal of the high school and superintendent of the school district) require each student to make a refundable book deposit before textbooks are issued. Claiming the book-deposit requirement violated the Free Textbook Law (§ 170.051, V.A.M.S.) and certain provisions of the Missouri Constitution, plaintiffs first sought a writ of mandamus to make defendants furnish their son with necessary textbooks “free of charge and without the necessity of any deposit.” An alternative writ issued and defendants made return. Following an evidentiary hearing on the question of law and facts arising upon the return, the circuit court refused the peremptory writ. Although possessed of such a right [State ex rel. Brandon v. Hickey, 462 S.W.2d 159, 161 (Mo.App.1970)], plaintiffs did not appeal from the judgment denying the peremptory writ. Subsequently plaintiffs, after changing counsel and modes of remedy, instituted the present action against defendants for a declaratory judgment. Rule 87, V.A.M.R. The petition, in substantially the same form as that employed in the mandamus action, prayed the court to declare that the book-deposit requirement contravened the law and the constitution. Defendants responded with a motion to dismiss stating, inter alia, that the judgment rendered in the mandamus suit estopped the plaintiffs from maintaining the declaratory judgment action because the mandamus judgment “is res judicata and [plaintiffs] are forever barred from taking the same or similar action and from filing a new cause of action thereon, and the [mandamus] judgment rendered therein is a bar to the action herein filed.” After receiving into evidence the entire record in the mandamus action and hearing arguments of counsel anent defendants’ motion, the court sustained the motion and dismissed the petition for declaratory judgment. Plaintiffs appealed.

In this appeal it is no concern of ours whether the judgment denying the peremptory writ of mandamus was erroneous vel non. As previously noted, plaintiffs did not appeal from the final appealable judgment denying the peremptory writ [Ex parte Skaggs, 19 Mo. 339-340 (1854)], so if the bar of res judicata is applicable here, it “applies to erroneous judgments as well as to those free from error.” Sierk v. Reynolds, 484 S.W.2d 675, 681[5] (Mo.App.1972). Jurisdiction in the sense of power to hear and decide a cause, necessarily includes the power to decide wrongly as well as rightly [Pope v. United States, 323 U.S. 1, 14, 65 S.Ct. 16, 23[16], 89 L.Ed. 3, 13[13] (1944)], and when a final judgment, although wrong, is rendered on the merits in favor of a defendant and plaintiff does not undertake to correct it on application for a new trial or appeal, the plaintiff cannot thereafter maintain a second suit on the same cause of action. Restatement, Judgments, § 48.

“ ‘It is a fundamental principle of jurisprudence that material facts or questions which were in issue in a former action, and were there admitted or judicially determined, are conclusively settled by a judgment rendered therein, and that such facts or questions become res judicata and may not again be litigated in a subsequent action between the same parties or their privies, regardless of the form the issue may take in the subsequent action, whether the subsequent action involves the same or a different form of proceeding, or whether the second action is upon the same or a different cause of action, subject matter, claim, or demand, as the earlier action. In such cases, it is also immaterial that the two actions are based on different grounds, or tried on different theories, or instituted for different purposes, and seek different relief.’ ” Varnal v. Kansas City, 481 S.W.2d 575, 579[3] (Mo.App.1972); Butler v. Manley, 416 S.W.2d 680, 682[1] (Mo.App.1967).

In keeping with the foregoing pronouncements, a final judgment rendered on the merits of an application for a peremptory writ of mandamus falls within the principle of res judicata, so that a final judgment in a mandamus action serves as a bar to a subsequent action involving the same parties or their privies, the same issues or in which the same relief is sought. 50 C.J.S. Judgments § 608, at p. 32; 52 Am.Jur.2d, Mandamus, § 488, at p. 810; Annot., 21 A.L.R.3d 206 et seq. Thus in Ramirez-Pabon v. Board of Personnel of Puerto Rico, 254 F.2d 1 (1st Cir. 1958), where the court entered a judgment dismissing plaintiff’s action for a writ of mandamus and she did not perfect an appeal thereby permitting the judgment of dismissal to become final, plaintiff was thereafter held to be estopped under the doctrine of res judicata from relitigating the question of the power of the personnel board in a suit for declaratory judgment.

The parties and the subject matter in present plaintiffs’ action for a peremptory writ of mandamus and their suit for a declaratory judgment are identical. By the mandamus action plaintiffs sought to obtain a writ to require defendants to furnish textbooks without requiring a refundable book deposit; in their declaratory judgment suit, plaintiffs sought a judgment declaring the book-deposit requirement to be illegal. The end sought in both proceedings was the same. Since the material facts or questions relative thereto were judicially determined in the mandamus suit, the circuit court correctly concluded that under the doctrine of res judicata plaintiffs could not relitigate the matter in an action for declaratory judgment and its determination is affirmed.

All concur.


author: ONION, Presiding Judge. ODOM, Judge

text:
    Raleigh LEJEUNE, Appellant, v. The STATE of Texas, Appellee.
    No. 49404.
    Court of Criminal Appeals of Texas.
    July 14, 1976.
    See also, Tex.Cr.App., 540 S.W.2d 701.

      Bill Pedersen, Jr., Nacogdoches, for appellant (on appeal only).
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

Appeal is taken from an order revoking probation.

On June 19, 1973, appellant pleaded guilty before the court to the offense of assault with intent to murder. Punishment was assessed at three (3) years, but the imposition of sentence was suspended and appellant was granted probation.

One of the conditions of probation was that appellant “Commit no offense against the laws of this or any other State

On February 22, 1974, the State filed a motion to revoke appellant’s probation, alleging that appellant “on or about the 20th day of February, 1974, did then and there unlawfully, knowingly and intentionally possess a usable quantity of marihuana of less than two ounces.” (Emphasis Supplied)

The record reflects that after a hearing was held on the motion to revoke on May 31,1974, the court entered its order, finding that appellant had violated “condition (b), to-wit: Commit no offense against the laws of this or any other state of the United States, the defendant . . . did then and there unlawfully, knowingly and intentionally possess a usable quantity of marihuana of less than two ounces.” (Emphasis Supplied)

Archie McKnight, a Nacogdoches police officer, testified that on February 20, 1974, he observed the appellant hitchhiking and stopped his patrol car to pick the appellant up. When McKnight learned appellant’s name, McKnight told appellant he was under arrest as there were outstanding arrest warrants for traffic offenses. Upon arrival at the police station, he observed the appellant to throw something to the ground as he got out of the patrol car. McKnight picked up the object, and it appeared to be a baggie of marihuana. It was sent to the Department of Public Safety Laboratory in Tyler. Claude Latta, chemist at said laboratory, testified that his examination of the substance in the baggie showed it to be marihuana and that the weight of the substance was 7.7 grams or “a little over a quarter of an ounce.” He did not testify, nor was he asked if the amount was a usable amount or quantity.

Appellant urges that no violation of a penal law has been shown since it was not shown as alleged in the revocation motion that the marihuana in question was a usable quantity as required by Article 4476-15, Sec. 4.05, Vernon’s Ann.C.S. (Controlled Substances Act).

The pertinent portion of said Section 4.05 provides:

“(a) Except as authorized by this Act, a person commits an offense if he knowingly or intentionally possesses a usable quantity of marihuana.
“(b) An offense under Subsection (a) of this section is:
“(1) a felony of the third degree if he possesses more than four ounces;
“(2) a Class A misdemeanor if he possesses four ounces or less but more than two ounces;
“(3) a Class B misdemeanor if he possesses two ounces or less.” (Emphasis Supplied)

It is clear from the above that the elements of the offense of possession of marihuana are (1) a person (2) did knowingly or intentionally (3) possess (4) a usable quantity of (5) marihuana (6) amount possessed in ounces as set forth in statute. See 4 Branch’s Tex.Anno., 3rd ed. (Auxiliary Penal Statutes), Penal Statutes, p. 215.

In the instant case the State recognized that a usable quantity was a necessary element of the offense when it so alleged in the revocation motion that appellant possessed a usable quantity of marihuana.

The wording of said Section 4.05 of the Controlled Substances Act does not reveal the legislative intent for the inclusion of the “usable quantity” requirement for possession of marihuana, and since the section is part of a comprehensive act, none of the usual sources for determining legislative intent is readily apparent. It appears though the Legislature intended to eliminate from criminal penalty the possession of “trace” amounts of marihuana. In construing former Article 725b, Vernon’s Ann.P.C., concerning possession of narcotics and which provided possession of any quantity of marihuana was sufficient, this court in Pelham v. State, 164 Tex.Cr.R. 226, 298 S.W.2d 171 (1957), held that to constitute a violation, the amount of marihuana possessed must be “such as is capable of being applied to the use commonly made thereof.” The court noted that marihuana was mostly commonly smoked in a cigarette. Under this test a number of convictions were upheld where only small amounts of marihuana were involved, e. g., Parson v. State, 432 S.W.2d 89 (Tex.Cr.App.1968) (1.41 grams of marihuana); Tuttle v. State, 410 S.W.2d 780 (Tex.Cr.App.1966) (63 milligrams of marihuana); Mitchell v. State, 482 S.W.2d 223 (Tex.Cr.App.1972) (.0074 grams of marihuana). See also and cf. Taylor v. State, 505 S.W.2d 927 (Tex.Cr.App.1974); Terrill v. State, 531 S.W.2d 642 (Tex.Cr.App.1976).

In Reyes v. State, 480 S.W.2d 373 (Tex.Cr.App.1972), the court held that the court-imposed minimum quantity requirement of Pelham did not apply to cases where the accused knowingly possessed the narcotic.

With these precedents in mind, it appears the Legislature in enacting Section 4.05 of the Controlled Substances Act sought to overrule the holding in Reyes, supra, for it established a minimum quantity requirement (usable quantity) which applies even when the drug is knowingly possessed.

While it can be assumed that the requirement of a “usable quantity” was intended to eliminate prosecutions for “trace” possession of marihuana, it is observed that proof of “usable quantity” was not limited by the statute to cases involving possession of under two ounces of marihuana. As drafted, the statute requires proof of a “usable quantity” in all possession cases regardless of the amount possessed.

Worthy of note is the fact that said Section 4.05(d), dealing with delivery of marihuana, does not require delivery of a “usable quantity” to constitute an offense. Perhaps the Legislature was satisfied with the prior holdings of this court under the former statute that where the sale of a narcotic drug was involved the quantity of the narcotic sold is irrelevant. Carter v. State, 480 S.W.2d 735 (Tex.Cr.App.1972); Bryant v. State, 492 S.W.2d 947 (Tex.Cr.App.1973). Both the possession and the delivery of marihuana require the element of “knowingly or intentionally.” The rationale for including the “usable quantity” requirement for possession of marihuana but not for delivery of marihuana is unclear. It would seem that unless the quantity delivered was sufficient to constitute a “usable quantity” the delivery of a lesser amount would not create any opportunity for drug abuse. Despite this, delivery of any quantity, whether “usable” or not, is sufficient if knowingly or intentionally done, to constitute the offense of delivery of marihuana.

The question presented is whether this revocation of probation may be sustained in absence of testimony from the chemist, other qualified witness or stipulation that the marihuana involved was a “usable quantity.” The amount of marihuana, of course, was shown to be “a little over a quarter of an ounce,” or 7.7 grams. May this court take judicial notice that this amount is a usable quantity?

Our research reveals that with the notable exception of California no other State courts have allowed the minimum quantity of marihuana to be proved by the use of judicial notice. In People v. Villalobos, 245 Cal.App.2d 561, 54 Cal.Rptr. 60 (Dist.Ct. of App., 2nd Dist., Div. 4-*1966), the court stated:

“Assuming that, at some point, a trial court and we could take judicial notice that a given quantity of narcotic, or a narcotic in a certain condition of packaging (as, for example, a marijuana cigarette), was usable, the 50 milligrams herein involved, scraped from a pocket, does not reach that status. If, in fact, it was a usable quantity, the burden was on the prosecution to prove that fact. Understandably, no such attempt was here made and the remarks above quoted make it clear that that issue had not occurred to the trial court as a matter calling for its factual determination. Because of this deficiency in proof, the case must be remanded for a new trial.”

In People v. Locke, 274 Cal.App.2d 541, 79 Cal.Rptr. 367 (Ct. of App., 4th Dist., Div. 1-1969), the court stated:

“Locke contends no showing was made the quarter to one-half ounce of marijuana found in his pocket was a useable amount. We hold a quarter to a half ounce of packaged marijuana is beyond that point suggested in People v. Villalobos, 245 Cal.App.2d 561, 567, 54 Cal.Rptr. 60, where a court may take judicial notice the quantity is useable.”

There was no other discussion as to the judicial notice issue.

In People v. Valerio, 13 Cal.App.3d 912, 92 Cal.Rptr. 82 (Ct. of App., 4th Dist., Div. 2-1970), the court stated:

“There was testimony that the fragments, the partially smoked cigarette and the bags of marijuana together constituted a usable amount, but there was no testimony as to whether the fragments themselves or the partially smoked cigarette itself constituted a usable quantity of marijuana. In the absence of such testimony, it may not be inferred that the fragments constituted a usable quantity (People v. Leal, 64 Cal.2d 504, 512, 50 Cal.Rptr. 777, 413 P.2d 665; People v. Villalobos, 245 Cal.App.2d 561, 567, 54 Cal.Rptr. 60), but, inasmuch as the marijuana cigarette was only partially smoked and the remaining portion was approximately one and one-half inches long, it may be inferred that it constituted a usable quantity (People v. Locke, 274 Cal.App.2d 541, 544, 79 Cal.Rptr. 367; People v. Villalobos, supra).”

Several Arizona cases, though never dealing precisely with the situation where judicial notice was taken, contain dicta which seems to indicate that judicial notice would be proper in certain cases. In State v. Urias, 8 Ariz.App. 319, 446 P.2d 18 (1968), the Arizona Court of Appeals reversed a conviction for illegal possession of narcotics where the contents of two packets were shown to be 533 and 582 milligrams, a little over one-half gram each, of a substance containing 18% heroin. The court stated:

“Of course, we recognize that there are instances where proof of usability would be superfluous, especially in a case where the amount of narcotics involved is of such a large quantity that its usability is patently obvious to everyone. But in this case we are not dealing with a large quantity, we are dealing with a little over 1,000 milligrams if you add the weights of Exhibits 3 and 4 together of which 18% was heroin by analysis. To us this is such a small amount as not to be within the realm of an uninformed layman’s knowledge of its usability. Thus, we feel that in line with State v. Moreno, supra [92 Ariz. 116, 120, 374 P.2d 872, 875 (1962)], in order to sustain a conviction for possession of narcotics, there must be evidence as to the sufficiency of the narcotic to be usable under the known practice of narcotic addicts. The State should have presented evidence on usable amount and the jury should have been instructed on the necessity of this element of the offense.” See and cf. State v. Quinones, 105 Ariz. 380, 465 P.2d 360 (1970); State v. Moreno, supra.

In Carmouche v. State, 540 S.W.2d 701 (Tex.Cr.App.), this day decided, the majority in a direct appeal from a conviction for possession of not more than two ounces of marihuana noted that the evidence showed there was a half ounce of marihuana found. There was no direct testimony offered that this was a usable amount, and Carmouche complained that there was a lack of proof on this element of the offense. The opinion noted that in Section 4.05(f) of the Controlled Substances Act concerning delivery of marihuana the Legislature had recognized that one-fourth ounce was a usable amount, and that proof of one-half ounce was sufficient to establish that Carmouche possessed a usable quantity of marihuana. While the term “judicial notice” was not used, the California case of People v. Locke, supra, was cited. It is clear from that opinion that where at least one-fourth ounce of marihuana is possessed the court will take judicial notice or infer that there was a usable quantity of marihuana, even in absence of testimony as to usability. The opinion leaves open the question of whether the court will infer that the evidence is sufficient where the amount possessed is less than one-fourth ounce and the State fails to offer any evidence to show that it was a usable quantity, o

In light of Carmouche we hold that evidence in the instant case showing that the appellant possessed “a little over a quarter of an ounce” is sufficient to establish that it was a usable quantity of marihuana. While the State could have easily removed the question from this case by simply asking the chemist or other qualified witness whether the amount involved was a usable quantity, it would now be absurd to reverse this conviction so that such testimony could be produced where in light of the amount involved proof of usability would be superfluous. It should be patently obvious to everyone that “a little over a quarter of an ounce” or 7.7 grams is sufficient for use in a cigarette, the use most commonly made of marihuana, Pelham v. State, supra, or in a pipe. Further, the trial court in the instant case in its findings found that there was a “usable quantity.”

In McCormick and Ray, Texas Practice, 2nd ed., Evidence, Sec. 151, p. 170, the theory of judicial notice is discussed in part as follows:

“The doctrine is one of common sense. The theory is that, where a fact is well known by all reasonably intelligent people in the community or its existence is so easily determinable with certainty from sources considered reliable, it would not be good sense to require formal proof. In such situations the judge is justified in declaring the truth of the fact without any evidence from the party.”

Our holding today does not draw a boundary line between quantities of marihuana below a quarter of an ounce of marihuana which in the future could properly be judicially noticed or inferred as a “usable quantity” and those which could not. Hopefully prosecutors in the future, since expert witness testimony is necessary in most cases to establish the substance in question is marihuana, will take a few seconds longer to establish through such witness that the amount of marihuana involved is a “usable quantity.”

Next appellant complains the trial court erred in admitting into evidence State’s Exhibit # 1, the envelope containing the marihuana, because the proper chain of custody was not established. Further, he claims that there was no showing that the marihuana discovered and that tested at the laboratory was the same marihuana. We find no objection to the introduction of the marihuana on the grounds now urged. Absent a timely objection to the introduction of evidence, nothing is presented for review on appeal. Ballard v. State, 519 S.W.2d 426 (Tex.Cr.App.1975); Hoffman v. State, 514 S.W.2d 248 (Tex.Cr.App.1974); Arivette v. State, 513 S.W.2d 857 (Tex.Cr.App.1974); Booth v. State, 499 S.W.2d 129, 135 (Tex.Cr.App.1973); Palmer v. State, 475 S.W.2d 797, 800 (Tex.Cr.App.1972). Only such grounds as were urged in the trial court may be presented for review in this court. Foreman v. State, 505 S.W.2d 564, 566 (Tex.Cr.App.1974). Having made no objection at the time of the introduction of the evidence, the error, if any, in admitting the same is waived. Lopez v. State, 468 S.W.2d 365, 367 (Tex.Cr.App.1971).

For the same reasons we find no merit in appellant’s contention that he was arrested under an invalid arrest warrant and the court erred in allowing any evidence or testimony as a result of his arrest. We again observe that there was no objection on the ground now urged, and nothing is presented for review. Further, we observe that the marihuana was not seized as a result of a search incident to arrest, but was found in plain view. Casarez v. State, 504 S.W.2d 847 (Tex.Cr.App.1974).

Lastly appellant complains that the State máde no showing that he was ever apprised of his probationary conditions. Once again we find no objection on this ground urged at the time of the revocation hearing. Nothing is presented for review. We further observe that in the record is a copy of the conditions with appellant’s signature verifying a receipt of the same.

Finding no reversible error, the judgment is affirmed.

ODOM, Judge

(dissenting).

I dissent to the majority’s disposition of this case. I would reverse the order revoking probation for the reasons set forth in the opinion prepared for the Court by Commissioner Davis, and adopt that opinion, which follows, as a statement of the grounds for my dissent.

“Appeal is taken from an order revoking probation.

“On June 19, 1973, appellant pleaded guilty before the court to the offense of assault with intent to murder. Punishment was assessed at three (3) years, but the imposition of sentence was suspended and appellant was granted probation.

“One of the conditions of probation was that appellant ‘commit no offense against the laws of this or any other State.

“On February 22, 1974, the State filed a motion to revoke appellant’s probation, alleging that appellant ‘on or about the 20th day of February, 1974, did then and there unlawfully, knowingly, and intentionally possess a usable quantity of marihuana of less than two ounces.’

“The record reflects that after a hearing was held on the motion to revoke on May 31,1974, the court entered its order finding that appellant had violated ‘condition (b), to wit: Commit no offense against the laws of this or any other State of the United States, the defendant . . . did then and there unlawfully, knowingly and intentionally possess a usable quantity of marihuana of less than two ounces.’

“Archie McKnight, a member of the Nac-ogdoches Police Department, testified that he arrested appellant on a warrant for a traffic violation on February 20, 1974. Upon arrival at the police station, McKnight observed appellant throw something to the ground as he got out of the patrol car. McKnight picked up the object appellant threw to the ground. It appeared to be a baggie of marihuana, and McKnight sent same to the Department of Public Safety Laboratory in Tyler. Claude Latta, chemist at said laboratory, testified that his examination revealed that the baggie in question contained 7.7 grams of marihuana.

“Appellant urges that no violation of the law has been proven in that the marihuana alleged to have been possessed by appellant is not shown to be a usable quantity of marihuana.

“The pertinent portion of Section 4.05 of the Controlled Substances Act (effective August 27, 1973), provides:

“ ‘(a) Except as authorized by this Act, a person commits an offense if he knowingly or intentionally possesses a usable quantity of marihuana.
(b) An offense under Subsection (a) of this section is:
(1) a felony of the third degree if he possesses more than four ounces;
(2) a Class A misdemeanor if he possesses four ounces or less but more than two ounces;
(3) a Class B misdemeanor if he possesses two ounces or less.’ ” (Emphasis supplied)
“Prior to the Controlled Substances Act, this Court in Reyes v. State, 480 S.W.2d 373, held that under Art. 725b, V.A.P.C. (effective until August 27, 1973), that the basic element which the State must prove is that the accused intended to violate the law by possessing a narcotic drug. Under 725b, V.A.P.C., possession of lesser amounts of marihuana than that alleged to have been possessed by appellant in the instant case was held sufficient to support a conviction. E. g. Parson v. State, 432 S.W.2d 89 (1.41 grams of marihuana); Tuttle v. State, 410 S.W.2d 780 (63 milligrams of marihuana); Mitchell v. State, 482 S.W.2d 223 (.0074 grams of marihuana). See and cf. Taylor v. State, 505 S.W.2d 927. In the instant case, appellant is charged with an amount less than two ounces. Possession of less than two ounces is the least offense denominated under Sec. 4.05, supra. However, before such possession constitutes an offense, an additional element must be proven. Implicit in Sec. 4.05, supra, is the requirement that the amount of marihuana possessed be a usable quantity.
“The State alleged as a basis for revocation of appellant’s probation that he violated a law of this State by possessing a usable quantity of marihuana, less than two ounces. The proof offered by the State reflects that appellant possessed 7.7 grams of marihuana, but the record is devoid of evidence that such is a usable quantity. The State having failed to prove an essential element of the offense alleged as a basis for revocation, we conclude that the trial court abused its discretion in revoking appellant’s probation.
“The order of revocation is reversed and the cause remanded.”

I dissent.

ROBERTS, J., joins in this dissent.

      . Our research of State and Federal drug laws reveals only one other statute with any provision similar to our “usable quantity” requirement. Nevada Revised Statute, Sec. 453.570 (Supp.1971), provides:
      “[t]he amount of a narcotic drug needed to sustain a conviction of a person for an offense prohibited by this chapter is that amount necessary for identification as a narcotic drug by a witness qualified to make such identification.” (Emphasis Supplied)
      The provisions of such statute were noted in Sheriff, Clark County v. Benson, 89 Nev. 160, 509 P.2d 554 (1973).


author: DOUGLAS, Judge.

text:
    Ex parte David Earl JASPER and Donald Wayne Broussard.
    No. 52026.
    Court of Criminal Appeals of Texas.
    July 14, 1976.

      David Earl Jasper and Donald Wayne Broussard, petitioners pro se.
    Tom Hanna, Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is a post conviction habeas corpus proceeding where petitioners are asking for joint relief pursuant to Article 11.07, V.A.C. C.P.

Both petitioners entered pleas of guilty to three indictments charging them with robbery by firearms, as co-defendants, and were each assessed three fifteen year concurrent prison sentences on September 9, 1974.

The petitioners filed for a writ of habeas corpus in the convicting court, alleging that the State refused to comply with its plea bargaining agreement with them at the time of the trial by not fulfilling a promise that they would receive “good time” credit for time spent in jail prior to their Texas convictions while they were still serving sentences in Louisiana. The trial court, after considering the documentary evidence presented, made the following findings of fact and conclusions of law, to-wit:

(1) During the first week of February, 1970, the petitioners participated jointly in three armed robberies in Jefferson County, Texas. They were not arrested at that time.
(2) According to the petitioners’ pleadings, they were subsequently arrested in Lake Charles, Louisiana, sometime later in February, 1970, for offenses committed in Louisiana.
(3) On March 12, 1970, petitioners were indicted in Cause No. 28192 by the Jefferson County Grand Jury for the offense of robbery by firearms. Subsequently, two more indictments in Cause Nos. 28,200 and 28,201 were returned on March 19,1970, for similar offenses.
(4) On March 19,1970, the sheriff’s office of Jefferson County placed a detain-er or “hold” against the petitioners while they were in the Lake Charles, Louisiana jail, such detainers being based upon the Jefferson County indictments.
(5) The petitioners were subsequently convicted for offenses committed in the state of Louisiana in July, 1970, and were sentenced to ten-year terms of imprisonment in that state. The petitioners remained in confinement in Louisiana until some time in 1974, at which time they were returned for trial in Jefferson County.
(6) Subsequently, the plea bargaining negotiations were conducted between petitioners and the prosecution, at which time the prosecution recommended to the court that, in exchange for the three guilty pleas by both defendants, the petitioners be assessed three fifteen-year sentences, each to run concurrently, and each to be credited with full back jail time credits for all time spent during the petitioners’ prior incarceration in the Louisiana State Penitentiary.
The above-mentioned plea bargaining agreement was approved by the defense and the trial court, and the three fifteen-year sentences were assessed, but at the time of the sentencing, the trial court neglected to award the petitioners with full credit for time spent in the Louisiana State Penitentiary.

The State’s prosecutor in these cases, the Honorable Danny Doyle, provided an affidavit to the court saying that he was in charge of the cases against the petitioners, and that this was the plea bargaining arrangement worked out between the State and the defense.

The prosecutor’s affidavit specifically rebuts the petitioners’ allegation that the prosecution promised them credit for “good time” previously served toward the Louisiana convictions. We do not feel that a further evidentiary hearing is required in this case. The affidavit is sufficient to rebut the petitioners’ allegations. The hearing judge had sufficient evidence before him to find the allegations concerning good time credit are not true.

The hearing judge found that, as a result of the plea bargaining agreement by the State, the petitioners should have been granted all back jail time credits served in the Louisiana State Penitentiary under the state’s convictions toward the discharge of the Texas sentence. While the trial court did feel that the petitioners were entitled to this “flat time” jail credit, he denied the petitioners’ request for any “good time” credit served during the petitioners’ incarceration in the state of Louisiana.

The hearing court had sufficient evidence to conclude that petitioners are entitled to credit for time spent in jail in Louisiana toward the discharge of their Texas sentences. Pursuant to the State’s plea bargaining agreement, and the trial court’s finding that this agreement was approved by the court at the time of the trials, the petitioners would be entitled to such credit as a matter of due process of law. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Compare Ex parte Shuflin, 528 S.W.2d 610 (Tex.Cr.App.1975); Cruz v. State, 530 S.W.2d 817 (Tex.Cr.App.1975); Gibson v. State, 532 S.W.2d 69 (Tex.Cr.App.1975); Rodriquez v. State, 509 S.W.2d 319 (Tex.Cr.App.1974).

Also, petitioners would be entitled to this jail time credit under the mandatory provisions of Article 42.03, Section 2, V.A.C.C.P., effective August 27, 1973, which reads as follows:

“Sec. 2. In all criminal eases the judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause, from the time of his arrest and confinement until his sentence by the trial court.” (Emphasis added)

In the case at bar, the trial court found that the petitioners are entitled to all credit for time spent while in the Louisiana State Penitentiary; however, the records reflect that the State of Texas placed its detainer on the petitioners for these robbery cases on March 19, 1970, which was prior to their convictions and commitments to the Louisiana State Penitentiary. Under these circumstances, the petitioners are entitled to credit for flat time spent in custody in Louisiana from March 19, 1970, until the present date. See Harrelson v. State, 511 S.W.2d 957 (Tex.Cr.App.1974); Ex parte Alvarez, 519 S.W.2d 440 (Tex.Cr.App.1975); Ex parte Spates, 521 S.W.2d 265 (Tex.Cr.App.1975). Once the Texas detain-er was filed against the petitioners in Louisiana, the petitioners were in “constructive custody” of the State of Texas and therefore, since the petitioners were sentenced after the effective date of the amendment of Article 42.03, supra, the petitioners are entitled to flat time credit for the time spent in custody, even in the state of Louisiana, from March 19, 1970, until the present date. See also Article 42.09, Sections 2 and 6, V.A.C.C.P.

The petitioners have alleged that the State promised them “good time” credit pursuant to Article 61841, V.A.C.S., toward the discharge of their Texas sentence for time spent while in confinement in the state of Louisiana. The trial judge found that no such promises were made and he has recommended that petitioners’ request for “good time” credit be denied. We hold that the petitioners are entitled to good time, as a matter of law, under the authority of Article 42.03, Section 4, V.A.C.C.P., as amended on August 27, 1973, which reads as follows:

“Sec. 4. When a defendant who has been sentenced to imprisonment in the Department of Corrections has spent time in jail pending trial and sentence or pending appeal, the judge of the sentencing court shall direct the sheriff to attach to the commitment papers a statement assessing the defendant’s conduct while in jail. On the basis of the statement, the Department of Corrections shall grant the defendant such credit for good behavior for the time spent in jail as he would have earned had he been in the custody of the department." (Emphasis added)

Under this provision of the amended Code of Criminal Procedure, the Legislature has clearly indicated its desire to provide criminal defendants with credit not only for time spent in jail pending appeal, see e. g., Pruett v. Texas, 470 F.2d 1182 (5th Cir. 1973), but also for all good time credit spent in custody prior to trial and sentence. Therefore, criminal defendants sentenced after August 27, 1973, must be credited with all calendar time credit for all days spent in custody prior to trial and pending appeal, and that in addition, these defendants would also be entitled to consideration for “good time” credits provided under article 61841, supra, as the Texas Department of Corrections might award for the time spent in custody.

In the case at bar the State of Texas placed its detainer upon the petitioners on March 19, 1970; therefore, since the petitioners were in “constructive custody” of the State from that day forward, they were entitled also to consideration by the Texas Department of Corrections for good time credits under Article 61841, supra. See Ex parte Enriquez, 490 S.W.2d 546 (Tex.Cr.App.1973); Ex parte Bennett, 508 S.W.2d 646 (Tex.Cr.App.1974); Ex parte Esquivel, 531 S.W.2d 339 (Tex.Cr.App.1976); Ex parte Spates, supra; Harrelson v. State, supra; Article 42.09, Sections 2 and 6, supra.

For the reasons stated above, the petitioners are entitled to flat time credit toward the discharge of their Texas sentences from March 19, 1970, as well as consideration for “good time” credits which may be awarded pursuant to the rules and regulations of the administration of the Texas Department of Corrections’ disciplinary system. The record before this Court does not reflect whether the petitioners maintained a good conduct record while in the Louisiana State Penitentiary. The Texas Department of Corrections’ officials may ascertain from the officials of the Louisiana State Penitentiary whatever is required to determine the petitioners’ conduct record. Then, the Texas Department of Corrections’ officials can make whatever decisions are appropriate in awarding the petitioners with good conduct credit, if any, based upon the records from the Louisiana State Penitentiary.

The relief sought is granted in part. A copy of this opinion will be delivered to the Texas Department of Corrections.

It is so ordered.

      . The records reflect that the petitioners have been in continuous custody for this entire time and that on several occasions sought to obtain a fast and speedy trial in the State of Texas. The petitioners cannot be penalized for not being brought to trial. Compare Ex parte Iglehart, 535 S.W.2d 185 (Tex.Cr.App.1976).


author: DOUGLAS, Judge. ONION, Presiding Judge

text:
    Iva Lee BULLET, Appellant, v. The STATE of Texas, Appellee.
    No. 51821.
    Court of Criminal Appeals of Texas.
    July 19, 1976.

      Sam H. Bass, Jr., Freeport, for appellant.
    Ogden Bass, Dist. Atty., Thomas W. Watson, Asst. Dist. Atty., Angleton, Jim D. Vollers, State’s Atty. and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of theft of service under V.T. C.A., Penal Code, Section 31.04. The court assessed punishment at six months, probated, and a fine of $250.00.

Appellant contends that the indictment does not allege an offense and that the evidence is insufficient to support the conviction.

V.T.C.A., Penal Code, Section 31.04, reads, in part, as follows:

“(a) A person commits theft of service if, with intent to avoid payment for service that he knows is provided only for compensation:
“(1) he intentionally or knowingly secures performance of the service by deception, threat, or false token; or
“(2) having control over the disposition of services of another to which he is not entitled, he intentionally or knowingly diverts the other’s services to his own benefit or to the benefit of another not entitled to them.”

It should be noted that theft of service can either be by deception, threat, or false token under Section 31.04(a)(1), supra, or by diversion under Section 31.04(a)(2).

The information, omitting the formal parts, reads as follows:

“Iva Lee Bullet did intentionally and knowingly by deception, secure performance of a service, namely telephone service, of the value of more than Twenty ($20.00) Dollars but less than Two Hundred ($200.00) Dollars, intending to avoid payment for the service and knowing that the service is provided only for compensation; . . . ” (Emphasis supplied)

We will discuss the sufficiency of the evidence. The record reflects that appellant was tried before a jury on a plea of not guilty. The evidence adduced at the trial showed that appellant had been employed by John and Jackie Maxwell as a maid from January 5, 1975, through January 16, 1975. Jackie Maxwell testified that appellant had been instructed not to use the telephone for long distance calls. John Maxwell testified that he did not give appellant permission to use the telephone for long distance calls. Steve Maxwell, the fifteen-year-old son of the Maxwells, testified that he was in the room on one occasion when appellant picked up the telephone and said, “Hello,” and “Yes, I will accept.” He left the room and, when he came back into the room, appellant said, “I will call you back later,” and hung up the telephone. Then she turned to him and stated that it had been a collect call for her and that his mother said it was okay.

Paul Shaw, manager of the Brazosport-Angleton area for Southwestern Bell, identified and submitted to the court the record of long distance telephone calls charged to the telephone number 297 — 4528. Mrs. Maxwell on recall identified 297 — 4528 as the telephone number at her residence when appellant was employed as a maid. She then testified as to which long distance calls she had made. Mr. Maxwell was recalled for the same purpose as was Steve Maxwell. The testimony showed that no other members of the family or friends had used the telephone and that several long distance telephone calls had been made.

The issue thus presented is whether or not the evidence is sufficient to show that appellant secured performance of a service; namely, telephone service, by deception as charged in the information. “Deception” is defined in V.T.C.A., Penal Code, Section 31.01(2), as follows:

“(A) creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true;
“(B) failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true;
“(C) preventing another from acquiring information likely to affect his judgment in the transaction;
“(D) selling or otherwise transferring or encumbering property without disclosing a lien, security interest, adverse claim, or other legal impediment to the enjoyment of the property, whether the lien, security interest, claim or impediment is or is not valid, or is or is not a matter of official record; or
“(E) promising performance that is likely to affect the judgment of another in the transaction that the actor does not intend to perform or knows will not be performed, except that failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed.”

The evidence presented does not show that the services secured by appellant were done through deception. What the evidence does establish is that appellant had diverted services to her own use in violation of Section 31.04(a)(2), supra, but the complaint and information charge a violation of Section 31.04(a)(1). The proof is insufficient to support the charge.

For this reason the conviction must be reversed.

ONION, Presiding Judge

(concurring).

I concur in the results reached by the opinion authored for the court by Judge Douglas, but take vigorous exception to footnote # 1. The information charged theft of service under one mode of Y.T. C.A., Penal Code, Section 31.04, while the proof showed the other mode. If this case is to be re-tried, most likely there will have to be a new information filed so as to correspond to the proof available. Since the present information will therefore not likely be used, I see no necessity for this court, with the heaviest caseload of any State appellate court in this nation, to write upon the sufficiency of an information that does not control the proper disposition of the case before this court. While I have great doubts about the sufficiency of the information, as I think would be entertained by most fair-minded members of the bench and bar, despite certain form books published prior to any interpretation of the new Penal Code by this court, I resent the implication in said footnote # 1 of the court’s opinion that the majority has declined to write on a subject not necessary to the proper disposition of this case, when even the writer of the opinion does not state his view that the information is sufficient. I did not think until today that Judge Douglas approved of this court engaging in the practice of issuing declaratory judgments.

      . Appellant contends that the information is insufficient in that it does not allege “from who” the theft of services was taken; “to whom” there was, if any, a failure to pay for the services. A majority of the Court is of the opinion that the information is insufficient to allege an offense but it does not choose to write upon the subject because of the reversal upon the insufficiency of the evidence. Cf. the forms in Branch’s Arm.P.C. 3rd, Section 31.04, page 498, and New Texas Penal Code Forms, Morrison & Blackwell, Chapter 31, page 39.
      It is difficult for this writer to understand how the presiding judge in his concurring opinion does not appreciate someone else doing a little bit of what he does so much of and that is, writing on many subjects that are not necessary for the determination of a case. His writings include lectures to trial judges and attorneys on questions not raised in the case as well as other dictum. For an example of dictum and declaratory judgments, see Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1969), where the presiding judge wrote an opinion on motion for rehearing which consisted mostly of dictum and overruled many cases on at least three subjects, none of which was necessary to the decision. See also Brumfield v. State, 445 S.W.2d 732 (Tex.Cr.App.1969), another of the many dictum filled opinions.


author: ONION, Presiding Judge.

text:
    Dave Wallace ROBERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 51877.
    Court of Criminal Appeals of Texas.
    July 19, 1976.
    Dave Wallace Roberson, pro se.
    Robert W. Gage, County Atty., Fairfield, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction by a jury for the offense of escape from jail. Punishment, enhanced under Article 63, Vernon’s Ann.P.C., 1925, was assessed at life.

Appellant is appealing his case pro se and in his first ground of error he asserts he is indigent and has been denied his constitutional right to counsel on appeal.

It appears he was represented by appointed counsel at trial. On March 17, 1975, the appellant was sentenced and on the same date the court conducted a hearing to determine his indigency for the purpose of appeal. The appellant filed a pauper’s oath. Appellant testified he owned no property but he had about $230.00 in money and properties, but all he actually had in cash was $40.00 “on account” in the penitentiary. On cross-examination he admitted that a few days before sentence was imposed he received $1,000.00 in a compromise settlement in a civil lawsuit against the sheriff of Freestone County. He revealed he had signed the money over to his father to pay a bank note of $400.00 at Elkhart due for some time, to repay his father for a typewriter the father had purchased for him and for money the father had sent him for cigarettes, etc., and stated he more or less owed it to his father. His attorney testified, after the attorney-client privilege was waived, that he had discussed with the appellant the possibility of an appeal and what would be necessary to perfect the appeal. At the conclusion of the hearing the court held that appellant was not indigent and appellate counsel would not be appointed, but told the appellant he did not want to deprive him of his appeal and if he was unable to both hire an attorney and pay for the transcription of the court reporter’s notes the county would provide one or the other. The appellant then stated, “I am unable to pay for one of them and I would rather have the transcript and I will fight it myself,” and “ . . .1 got money to pay for one of them but I ain’t got money to pay for both of them.” The court then ordered a transcription of the court reporter’s notes to be prepared at approximate cost of $1,000.00.

On July 21, 1975, appellant appeared pro se at a hearing to correct the appellate record and there was some discussion by the appellant with the court about a staff counsel at Department of Corrections asking to be appointed for the purpose of the appeal and the court declining in view of the earlier hearing, wherein appellant stated he would hire his own counsel.

On August 13, 1975, appellant again appeared pro se on a continuation of the hearing on the motion to correct the record and asked the court for the assistance of counsel and stated he knew little of the law. He asked the court to appoint counsel and that he “would help the court pay one, that I have got a little money I could pay.” He stated he did not have enough money to pay a lawyer for his appeal, that one lawyer wanted $250.00 just to come talk to him at the Ellis Unit, Department of Corrections, and another wanted $50.00 just “to drive out from Huntsville” to talk about the case. Upon inquiry, appellant told the court the staff counsel had shown him a letter where the Department of Corrections would not permit him to get involved.

On November 3, 1975, the appellant filed his pro se brief, initially alleging that he was indigent and without counsel.

In Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), the United States Supreme Court held that indigent defendants were denied equal protection of the law where the merits of the one appeal they had from their convictions were decided without benefit of counsel. See also Lopez v. State, 486 S.W.2d 559 (Tex.Cr.App.1972); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); Hawkins v. State, 515 S.W.2d 275 (Tex.Cr.App.1974); McMahon v. State, 529 S.W.2d 771 (Tex.Cr.App.1975). In Simmons v. State, 511 S.W.2d 308 (Tex.Cr.App.1974), this court held that the mere fact the defendant made a $5,000.00 appeal bond was not reason alone to refuse to appoint counsel on appeal in the absence of a hearing. See and cf. Foley v. State, 514 S.W.2d 449 (Tex.Cr.App.1974).

Only recently in Conrad v. State, 537 S.W.2d 755 (Tex.Cr.App., delivered June 16, 1976), we stated:

“There are no standards set out for guidance to trial judges in determining the actual indigency of a defendant for the purposes of appeal. See Article 40.-09(5), V.A.C.C.P. Each case must be decided upon its facts.”

In such case this court also noted that parents of a defendant are not legally bound to pay the expenses of an appeal.

In the instant case, while the court did conduct a hearing, we are confronted with a situation where the appellant at the time of notice of appeal filed a pauper’s oath and requested appointment of counsel on appeal. . While he may not have been wise in view of his circumstances to assign away the money received from the civil lawsuit to pay past debts, his testimony that he no longer had the money was undisputed. It was only after the court stated the county would furnish either the record or counsel on appeal did appellant agree to take the record and offer to get counsel. Since that time, over a year ago, it is obvious that appellant, in the Department of Corrections under a life sentence, is still without counsel though it appears that repeated efforts have been made to secure counsel without success.

In the interest of justice we abate this appeal for a clear-cut determination of appellant’s indigency for the purposes of appeal after a full-blown hearing on the issue, following which the trial court shall file findings of fact and conclusions of law. If found indigent, appellant should have counsel appointed for the purposes of appeal and with proceedings in accordance with Article 40.09, Vernon’s Ann.C.C.P.

The appeal is abated.

      . The indictment presented in November, 1974, alleged the primary offense occurred on or about May 1, 1973. At appellant’s trial commencing on February 20, 1975, there was no election made to be punished under the new Penal Code, effective January 1, 1974.


author: GREEN, Commissioner.

text:
    Ex parte Stanley Homer BATES.
    No. 52529.
    Court of Criminal Appeals of Texas.
    July 19, 1976.
    Howard B. Law, Dallas, for appellant.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

This is an application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C. C.P., in which the petitioner advances the claim that he was denied certain “time credits” toward the discharge of a five-year sentence assessed in Cause No. C72-8305— MN out of the 195th District Court of Dallas County. The trial court’s findings of facts and conclusions of law reflect the following chronological order of events, to-wit:

1. Petitioner was convicted of burglary in Cause No. F-2843-KI in Criminal District Court No. 2 of Dallas County, Texas, on December 12, 1967, and assessed a ten-year term of imprisonment. Petitioner paroled this sentence and was released from custody on May 18, 1971.
2. Petitioner was charged with the offense of driving while intoxicated on September 4, 1972, and subsequently indicted in Cause No. C72-8305-MN by the Dallas County Grand Jury. Petitioner was released on bond pending trial.
3. Petitioner was convicted of the offense of driving while intoxicated, subsequent offense, on February 14, 1973. On March 26, 1973, Petitioner was formally sentenced, and remained out on bail pending appeal bond.
4. On July 11, 1973, Petitioner was arrested as a parole violator and confined in the Dallas County Jail pending parole revocation proceedings with reference to the ten-year conviction in Cause No. F-2843-KI. Parole was finally revoked on August 3, 1973, and Petitioner remained in the Dallas County Jail until January 24, 1974.
5. On January 24, 1974, Petitioner was returned to the Texas Department of Corrections as a parole violator with reference to the previous burglary conviction.
6. Contemporaneous with Petitioner’s parole revocation proceeding and re-commitment to the Texas Department of Corrections, his appeal with reference to the DWI conviction in Cause No. C72-8305-MN was continuing.

That conviction was finally affirmed by this Court, and the mandate issued on March 29, 1974 in a per curiam opinion. Thereafter, a capias was issued for Petitioner’s arrest upon the mandate.

7. APPARENTLY, HOWEVER, NONE OF THE TRIAL OFFICIALS IN DALLAS COUNTY PROPERLY FILED A DETAINER WITH THE TEXAS DEPARTMENT OF CORRECTIONS BASED UPON THE DWI APPEAL MANDATE, AND AS A RESULT, THE TEXAS DEPARTMENT HAD NO KNOWLEDGE THAT PETITIONER HAD A SUBSEQUENT FINAL CONVICTION PENDING.
8. Petitioner discharged the previous ten-year burglary sentence from the Texas Department of Corrections on April 29, 1975, and was released from custody.
9. Petitioner remained out of custody from April 29,1975, until February 3, 1976, at which time Petitioner was arrested based upon the capias which had issued upon this Court’s mandate affirming the previous five-year sentence for driving while intoxicated, subsequent offender. Petitioner has been in custody since this date, and the Texas Department of Corrections records reflect that Petitioner’s five-year sentence begins as of February 3, 1976.

Petitioner alleges that the Dallas County trial officials’ clerical error in failing to notify the Texas Department of Corrections of the five-year DWI commitment resulted in the loss of substantial time credits toward the discharge of this sentence. The trial court, after reviewing the trial and jail records of Petitioner’s commitment, issued findings of fact and conclusions of law ree-ommending that the relief Petitioner seeks be granted.

This Court has recently had occasion to review several cases in which inmates claim that clerical errors submitted by trial officials have prevented them from obtaining full credit toward the discharge of their sentences. See Ex parte Downey, 471 S.W.2d 576 (Tex.Cr.App.1972); Ex parte Esquivel, 531 S.W.2d 339 (Tex.Cr.App.1976); Ex parte Iglehart, 535 S.W.2d 185 (Tex.Cr.App. opinion delivered April 7, 1976). These cases set out the general rule that where a court does not order that two or more sentences in different prosecutions shall be cumulative, then the terms of imprisonment run concurrently, and the sentence begins to run on the date that it is pronounced, if the Petitioner is in custody. See also Art. 42.09, V.A.C.C.P.

From the record before this Court, it appears that Petitioner has been denied certain time credits toward the discharge of this sentence during various phases of the prosecution process, and in order to facilitate disposition of this case, each phase of Petitioner’s case must be reviewed separately to determine the exact amount of credit to which he is entitled, to-wit:

1.PRE-TRIAL JAIL TIME CREDIT— The trial court has found that Petitioner should have been credited for time spent in jail prior to his trial. Based upon the trial court’s findings, and the records before this Court, Petitioner is entitled to jail time credit from September 4, 1972, until September 11, 1972, and from February 14, 1973, until February 16, 1973, dates that he was incarcerated prior to making his bonds.
2. TIME OUT OF JAIL ON APPEAL BOND — The records reflect that Petitioner was released on appeal bond on February 16, 1973, and remained out of custody on this bond until July 11,1973, at which time he was arrested upon a parole violation warrant. Petitioner is not entitled to any credit for time spent out of custody on the appeal bond. See Shaw v. State, [539] S.W.2d [887] (Tex.Cr.App., No. 51,701, opinion delivered February 11, 1976); Ex parte Francis, 510 S.W.2d 345 (Tex.Cr.App.1974).
3. PETITIONER’S COMMITMENT UPON PAROLE VIOLATION WARRANT — The records reflect that Petitioner was arrested on July 11, 1973, upon a parole violation warrant based upon his previous burglary conviction. The trial court has recommended that the Petitioner’s sentence on the DWI conviction re-eommence as of this date, and that Petitioner be given credit for this time spent in jail pending his appeal. Since the trial court was given the primary authority to award the credits for time spent in jail, we accept the trial court’s determination that Petitioner’s sentence in the DWI case re-commenced as of July 11,1973. See Ex parte Griffith, 457 S.W.2d 60 (Tex.Cr.App.1970); Curlin v. State, supra; Art. 42.03, V.A.C.C.P. Compare Shaw v. State, supra.
4. “GOOD TIME” CREDIT WHILE IN DALLAS COUNTY JAIL PENDING PAROLE REVOCATION — The records reflect that Petitioner was in custody in the Dallas County jail from July 11, 1973, until January 24, 1974, pending the parole revocation proceedings previously mentioned. In view of our acceptance of the trial court’s findings that Petitioner’s DWI sentence was to re-commence on July 11, 1973, and that he be given flat time, or calendar time, credit toward discharge of this DWI conviction, we are also in agreement with trial court that Petitioner should be given any “good time” credits earned while in the Dallas County jail pending the appeal of this conviction. See Pruett v. Texas, 470 F.2d 1182 (5th Cir. 1973) affirmed in 414 U.S. 802, 94 S.Ct. 118, 38 L.Ed.2d 39 (1973). See also Art. 6184(1) V.A.C.S.
5. TIME CREDITS FOR PERIOD SPENT IN THE TEXAS DEPARTMENT OF CORRECTIONS — The trial court found that Petitioner spent from January 24, 1974 until April 29, 1975 in the Texas Department of Corrections, and that therefore, Petitioner should be given credit'for any flat time and “good time” credits received during this period toward the discharge of the DWI sentence. We concur in this finding. See Ex parte Enriquez, 490 S.W.2d 546 (Tex.Cr.App.1973); Ex parte Bennett, 508 S.W.2d 646 (Tex.Cr.App.1974); Ex parte Esquivel, supra.
6. TIME SPENT OUT OF CUSTODY AFTER PETITIONER’S DISCHARGE AND ERRONEOUS RELEASE FROM THE TEXAS DEPARTMENT OF CORRECTIONS— The records reflect that Petitioner discharged his previous burglary conviction on April 29, 1975, and was erroneously released from custody since the Dallas County trial officials had failed to inform the Texas Department of Corrections of the pending DWI commitment. The records further reflect that Petitioner was out of custody until February 3,1976, the date that he was re-arrested on the capias issuing from this Court’s mandate of affirmance.
The trial court has made specific findings that the improper release of Petitioner was not Petitioner’s fault, but due solely to a clerical error committed by Dallas County trial officials. Under these circumstances, Petitioner is entitled to flat time credit, but not good time credit, for time spent out of custody as a result of the erroneous release. See Ex parte Downey, supra; Ex parte Esquivel, supra; Ex parte Iglehart, supra, and cases cited therein.
7.TIME CREDITS AFTER PETITIONER’S RE-ARREST UPON CA-PIAS AFTER MANDATE — The trial court has found that Petitioner was re-arrested upon the capias after mandate on February 3, 1976, and that he has been in continuous custody in the Dallas County jail and the Texas Department of Corrections since that date.
The law being well settled that Petitioner cannot be compelled to serve his sentence in installments, Petitioner is therefore entitled to all flat time and good time credits earned toward the discharge of this sentence since February 3, 1976. See Ex parte Esquivel, supra; Ex parte Iglehart, supra, and cases cited therein.

For the above-mentioned reasons, Petitioner’s application for writ of habeas corpus is granted in part, and a copy of this opinion shall be directed to the Texas Department of Corrections for the purpose of correcting Petitioner’s records consistent with the holding herein.

IT IS SO ORDERED.

Opinion approved by the Court.

      . Since Petitioner was formally sentenced prior to August 27, 1973, the date of the enactment of Art. 42.03, Sec. 4, V.A.C.C.P., Petitioner is not entitled to mandatory credit for time spent in jail prior to trial. Cf. Harrelson, 511 S.W.2d 957 (Tex.Cr.App. 1974). Under the law in effect at the time of Petitioner’s sentencing, the trial court should have noted any pre-trial credits received within the sentence. See Ex parte Vessells [Vessels], 467 S.W.2d 259 (Tex.Cr. App.1971); Ex parte Washburn, 459 S.W.2d 637 (Tex.Cr.App. 1970). However, since the trial court found that Petitioner would have been granted pre-trial jail time credit had he been in custody at the time of his procedural re-sentence after this Court’s mandate, we hold that the trial court is authorized to grant this credit at this time. See Curlin v. State, 505 S.W.2d 889 (Tex.Cr.App. 1974).


text:
    Ex parte Theodore MAPULA.
    No. 52853.
    Court of Criminal Appeals of Texas.
    July 19, 1976.
    Joseph S. Chagra, El Paso, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order entered in the 34th District Court refusing the application for reducing bail and ordering the appellant held without bail.

It appears that the appellant was charged in Justice of the Peace court with capital murder, and the magistrate set the bail at $50,000.00. The appellant then made habe-as corpus application to the District Court for reduction of bail. After hearing evidence the court did not remand or reduce the bail set as excessive, but upon oral motion of the district attorney ordered the appellant held without bail.

The question presented is whether District Court may upon habeas corpus proceeding to reduce bail order the accused held without bail in a capital murder case where the jurisdiction of the cause is still in the Justice of the Peace Court.

The record does not reveal whether there had been an examining trial in Justice Court, but does reflect that the magistrate had determined that it was a bailable case and set bail at $50,000.00. Appellant then sought to invoke the habeas corpus jurisdiction of the District Court seeking reduction of bail.

Article I, Sec. 12 of the State Constitution provides:

“The writ of habeas corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual.”

Article 11.01, Vernon’s Ann.C.C.P., defines the writ of habeas corpus. The District Court is given the power to issue the writ of habeas corpus by Article V, Sec. 8 of the State Constitution and Article 11.05, Vernon’s Ann.C.C.P.

Article 11.23, Vernon’s Ann.C.C.P., provides:

“The writ of habeas corpus is intended to be applicable to all such cases of confinement and restraint, where there is no lawful right in the person exercising the power, or where, though the power in fact exists, it is exercised in a manner or degree not sanctioned by law.”

Article 11.24, Vernon’s Ann.C.C.P., provides:

“Where a person has been committed to custody for failing to enter into bond, he is entitled to the writ of habeas corpus, if it be stated in the petition that there was no sufficient cause for requiring bail, or that the bail required is excessive. If the proof sustains the petition, it will entitle the party to be discharged, or have the bail reduced.”

Article 11.41, Vernon’s Ann.C.C.P., specifically related to a capital offense and provides:

“If it appears by the return and papers attached that the party stands indicted for a capital offense, the judge or court having jurisdiction of the case shall, nevertheless, proceed to hear such testimony as may be offered on the part of the State and the applicant, and may either remand or admit him to bail, as the law and the facts may justify.” (Emphasis supplied.) See and cf. Article 11.44, Vernon’s Ann.C.C.P.

There is no showing that an indictment had been returned. Therefore, the Justice of the Peace still had jurisdiction over the cause wherein the magistrate had set bail. The filing of the habeas corpus petition invoked the habeas corpus jurisdiction of the District Court, which permitted such court to remand, after hearing, if the court found the applicant to be legally restrained, or to reduce the bond of bail set if it was excessive, but the habeas corpus jurisdiction of the District Court did not give it jurisdiction to order that bail be denied (or increased) on oral motion of the State when another court still retained jurisdiction of the cause. See and cf. Ex parte McCorkle, 29 Tex.App. 20, 13 S.W. 991 (1890).

The trial court’s order denying bail is set aside.

It is so ordered.


author: RAY, Justice.

text:
    Benicio F. CABRERA, Appellant, v. DELTA BRANDS, INC., Appellee.
    No. 8340.
    Court of Civil Appeals of Texas, Texarkana.
    May 18, 1976.
    Rehearing Denied July 27, 1976.

      Leddie C. Taylor, McCracken, Smith, Shields & Taylor, Carrollton, for appellant.
    Michael R. Cooper, Flagg, Cooper, Hay-ner, Miller, Long & Owen, Dallas, for appel-lee.
   RAY, Justice.

This is a non-subscriber workman’s compensation case. Appellant (plaintiff) Beni-cio F. Cabrera sued his employer, appellee (defendant) Delta Brands, Inc., for injuries which he sustained while attempting to move a heavy steel plate in appellee’s manufacturing plant. Trial was to a jury and damages in the sum of $58,489.65 were awarded. Judgment was rendered by the trial court that appellant Cabrera take nothing following the hearing on appellee’s motion for judgment notwithstanding the verdict. Cabrera has perfected his appeal and submits three points of error.

Appellant contends in his first point of error that the trial court erred in granting appellee’s motion for judgment notwithstanding the verdict. The jury found that Delta Brands, Inc., was negligent in failing to post safety rules and regulations concerning the movement of steel objects and that such failure was a proximate cause of Cabrera’s injuries.

It is a primary, continuing and non-delegable duty of the employer to provide a safe place and safe conditions in which his employees may work. Art. 5182a V.A.T.S. Sloan v. Leger Mill Co., 161 S.W.2d 333 (Tex.Civ.App., Amarillo 1942, writ ref’d w. o. m.). As a part of that obligation, the employer must instruct his employees in the safe use and handling of the products and equipment used in and around the employer’s plant or facilities. Ordinarily this is done orally at safety meetings with the employees and by posting rules and regulations governing the method of handling equipment, products, processes and situations which may cause injury to an employee. One of the reasons for placing this burden on the employer is because the employer usually has the greater knowledge or should have the greater knowledge of the dangers and risks of injury to the employee. Obviously, the employer is not bound to post rules in every instance. However, when the work is of a complex or hazardous nature the duty is upon the employer to instruct his employees in the safe management of the work. It should be done orally at safety meetings in order to determine that the employee fully understands the instructions. Then the rules should be posted in a conspicuous place at or near the work area as a reminder to the employee. If some of the employees would have difficulty reading the instructions in English, then the employer should post the instructions in the language most familiar to the majority of those employees who have difficulty reading and understanding English.

In the instant case, Delta Brands, Inc., was engaged in the manufacturing of heavy industrial equipment and machines. Heavy sheets of steel are used in building and testing appellee’s products. Appellant had worked for appellee from February of 1968 to the date of his injury in December of 1971. During that time he did various kinds of work for appellee including welding, cutting steel plates, assembling machinery and painting. Cabrera was a Cuban national who immigrated to the United States in 1967 and shortly thereafter went to work for appellee where he was employed until the time of his accident. He speaks only an insignificant amount of English, and an interpreter was required throughout the trial. On the date of appellant’s injury, he was painting a heavy steel “run-out” table. While under the table painting, Cabrera tried to move a heavy metal plate that was obstructing a portion of the table being painted. The piece of metal lay under the table upon a crossbeam and appellant intended to move it from the crossbeam to the floor. During the process of trying to move the piece of metal weighing more than 100 pounds, appellant suffered a herniated spinal disc which later required an intervertebral laminectomy.

The evidence taken in the light most favorable to Cabrera reveals that appellant was never instructed on the procedure to move heavy sheets of metal. He had not received any oral instructions nor were there any written instructions posted at the plant regarding the method or procedure to be used in moving heavy objects. While appellee had acquired two hoists to be used in moving heavy metal objects, the hoists had never been installed. There were two forklifts in the plant, but the small forklift was not operative on the occasion and the larger forklift could not be moved into a position to move the piece of steel that Cabrera was trying to move. The testimony showed that while other employees might have been available to help move the piece of metal, appellant was afraid to ask for help and the employees would have been afraid to have answered the call for help because of a plant policy of firing employees that got together for any purpose. Appellant expressed his fear that he would be fired from his job if he asked for help and some of his co-workers expressed the same fear. It was generally regarded that each man would do his own work without help or assistance from any of the other employees.

In a non-subscriber workman’s compensation case assumption of risk and contributory negligence on the part of the employee are not defenses which can be urged by the employer. Art. 8306 V.A.T.S., Sec. 1.

Appellee relies on the rule stated in Western Union Telegraph Co. v. Coker, 146 Tex. 190, 204 S.W.2d 977 (1947):

“The employer is not liable when he has provided help and injury results from the act of the employee in voluntarily proceeding to do the work without assistance. The same is true when sufficient help is nearby and available and the employee does the work alone without seeking or asking for assistance.”

The rule has also been applied in Jackson v. Marshall, 243 S.W.2d 205 (Tex.Civ.App., Dallas 1951, no writ history) and Shumake v. Great Atlantic & Pacific Tea Co., 255 S.W.2d 949 (Tex.Civ.App., Dallas 1953, writ ref’d, n. r. e.). In Great Atlantic & Pacific Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249 (1943), the Supreme Court held that an employee cannot complain if an employer merely requires an employee to do the usual and customary work required of persons in his line of employment, or required by the character of the business in which he was employed.

In the Evans case the Supreme Court set out the rules of law to be followed in testing the question of negligence vel non:

“Negligence rests primarily upon two elements: (a) reason to anticipate injury, and (b) failure to perform the duty arising on account of that anticipation. “Although injury may result from a person’s act or omission, yet, if the actor could not have reasonably foreseen the resultant injury, or injuries, similar in character, he is not to be held responsible therefor.”

Tested against the common experience of mankind, the totality of the evidence is sufficient to raise issues of fact as to negligence on the part of appellee under the peculiar circumstances of this case. The jury found negligence, but the trial court no doubt concluded that appellee owed no duty to Cabrera to instruct him in the safe handling of heavy metal objects by posting rules and regulations concerning the subject matter. There was testimony that no instructions were given and that no rules were posted. In Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934), the Supreme Court stated that the duty to provide rules and regulations for the safety of employees, and to warn them, under certain conditions, as to the hazards of their positions and employment was an absolute and nondelegable duty. “An ordinarily prudent person in the exercise of ordinary care might well have realized that there was danger in lifting a heavy object while bent over in an awkward position, and that the danger of injury would be increased by twisting the body around while conveying such an object.” J. Weingarten, Inc. v. Moore, 441 S.W.2d 223 (Tex.Civ.App., Houston 1st Dist. 1969); affirmed by the Texas Supreme Court in J. Weingarten, Inc. v. Moore, 449 S.W.2d 452 (Tex.1970).

Under the facts of this case where the chain hoists were still packed in their original boxes and had been for a period of two years or more; where the only operable forklift could not be moved into position to lift the steel plate; and, where the employees were all fearful of losing their jobs if they asked for help, it was reasonably foreseeable by appellee that one person working alone moving a heavy steel object could be injured and therefore Delta Brands, Inc., had reason to anticipate an injury like the one suffered by Cabrera. There is sufficient evidence to charge appellee with a duty to instruct appellant as to the manner in which he could have moved the steel object safely; that it negligently failed to give him such instructions; and that this negligence was a proximate cause of appellant’s injuries.

Appellant urges in his point of error No. 2 that the court erred in overruling his trial amendment filed and presented to the court after the verdict of the jury as it relates to damages. While we are convinced that the pleadings and the proof justified the jury in arriving at the amount of damages they awarded, appellant has not shown that the trial court abused its discretion in refusing to let him file a trial amendment after the jury verdict. There is no showing, either in the statement of facts or by bill of exception, of the circumstances attending the presentation of Cabrera’s trial amendment. Upon the record before us, we must presume that the trial court acted upon proper grounds in denying leave to file the amendment. There was no trial by consent or waiver merely because the cumulative evidence on damages mathematically computed to a sum greater than that sought by appellant in his amended petition. Until the time Cabrera tendered his trial amendment and sought to further increase his claim for damages, the appellee was entitled to rely upon the maximum claim specified in Cabrera’s amended petition. Appellant’s second point of error is overruled. Williams v. General Motors Corporation, 501 S.W.2d 930 (Tex.Civ.App., Houston 1st Dist. 1973, writ ref’d n. r. e.).

We need not reach appellant’s third point of error concerning whether or not appellant was entitled to have his motion for continuance granted in order to secure service of a subpoena duces tecum on Houston Maddox to obtain testimony related to an investigative report made by Maddox regarding safety in appellee’s plant.

The judgment of the trial court is reversed and judgment is here rendered that appellant recover from appellee the sums awarded by the jury limited by the specific sums alleged in appellant’s Third Amended Original Petition which are as follows:

a. Physical pain and mental anguish in the past $10,000.00
b. Physical pain and mental anguish which in reasonable probability he will suffer in the future 5,000.00
c.Reasonable expenses of his necessary medical care in the past 3,277.65
d. Reasonable expenses of his necessary medical care which in reasonable probability he will require in the future 3,000.00
e. Loss of earnings in the past 9,216.00
f. Loss of earning capacity, which, in reasonable probability he will sustain in the future 14,976.00

for a total sum of $45,469.65.

Reversed and rendered.


author: CHADICK, Chief Justice.

text:
    B. L. LITTLETON and Joe S. Thomson, d/b/a Superior Construction Company, Appellants, v. Jackie WOODS and wife, Cheryl Woods, Appellees.
    No. 8338.
    Court of Civil Appeals of Texas, Texarkana.
    June 8, 1976.
    Rehearing Denied July 27, 1976.

      Norman C. Russell, Atchley, Russell, Wal-drop & Hlavinka, Texarkana, for appellants.
    Cahill Hitt, Hitt, Pesek & Lovett, Texar-kana, for appellees.
   CHADICK, Chief Justice.

This is a vendee against vendor suit for damages arising out of the sale of a house and lot. Jackie Woods and wife, Cheryl Woods, plaintiffs below, sued and named as defendant B. L. Littleton and Joe S. Thomson, doing business as Superior Construction Company. In aid of clarity, the plaintiffs below, appellees here, will be referred to collectively as Woods and defendants below, appellants here, will be referred to collectively as Littleton. Trial was to a jury and judgment was entered in the trial court awarding Woods a $10,000.00 recovery from Littleton, together with interest, and court-by-court attorney fees for a maximum of $4,000.00. Littleton appealed.

Pleadings

Woods’ trial pleadings averred that Lit-tleton sold him a house and lot with a defective septic system and may be construed as stating both common law and statutory actions. The common law actions are for breach of both express and implied warranty and negligent tort. The statutory actions are for relief authorized by the Deceptive Trade Practices — Consumer Protection Act, Tex.Bus. & Comm.Code, Sec. 17.41 through 17.63. The Act will hereafter be referred to simply as the Consumer Protection Act and particular sections of the Code specified when appropriate.

Common Law Actions

In response to special issues (issue numbers are shown in parentheses), the jury found that Littleton warranted the house to have been constructed in a good and workmanlike manner and suitable for human habitation (4). Woods relied upon such warranty (5). The house was not constructed in good and workmanlike manner (6). Failure to construct the house in good and workmanlike manner and suitable for human habitation was a producing cause of damages sustained by Woods (11). The jury was instructed that no percolation test was made at the lot in suit and found that failure to conduct percolation tests was negligence (12). That such negligence was the proximate cause of damages to Woods (13). The fair market value of the house, at the time of the occurrence, with a properly working septic system was $33,000.00 (14). The fair market value of the house, at the time of the occurrence, with a septic tank in its existing condition was $28,000.00 (15). The sixteenth special issue was in this form, and answered as shown, to-wit:

“What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate Jackie Woods and his wife Cheryl Woods for the mental anguish they have suffered in the past, if any, as a result of the occurrence in question?
“Answer in dollars and cents, if any.
“Answer: $5,000.00”

The value of the house and lot as determined by jury answers to Special Issues 14 and 15 is not supported by evidence. Objection to the submission of these issues was made on the ground of no evidence. Under the pleadings “the time of the occurrence in question” was the date of sale, November 10, 1972. The only evidence offered in support of these issues was an appraisal made in 1974 and values at that time. Since values at the time of the sale were not proven no damage is shown to arise out of the sales transaction.

The form of the special issue on damages for mental anguish (16) is quoted to divulge its insufficiency. That is to say, the form is not sufficiently definite, explicit and comprehensive to require the jury to make an award on a proper ground under correct principles of law. The jury should have been confined to damages for mental anguish suffered as the direct and proximate result of the act, omission or conduct found to have caused it and should not have been left free to speculate as to possible causes and elements of damage. See Standard Paving Co. v. Pyle, 131 S.W.2d 200 (Tex.Civ.App., Port Worth 1939, no writ); Anderson v. Reichart, 116 S.W.2d 772 (Tex.Civ.App., Fort Worth 1938, writ dism’d); Airline Motor Coaches v. Guidry, 241 S.W.2d 203 (Tex.Civ.App., Beaumont 1950, writ ref’d n. r. e.); 3 McDonald’s, Texas Civil Practice, Sec. 12.23.1 and 17 Tex. Jur.2d, Damages, 315. The issue as submitted allowed the jury to award reparations for mental anguish caused by breach of warranty, negligent failure to make a percolation test or any other mental anguish suffered by Woods as a result of the “occasion in question”. Objection to submission of this issue was made on the grounds that the issue did not limit damage to that which the acts of Littleton produced or proximately caused. The form of the issue was improper and it should not have been submitted. The jury verdict on it will not support the judgment rendered.

Normally a reversal and remand would follow in the wake of the conclusions that have been stated. Discussion of Woods’ theory or theories of recovery and the theories pled as contrasted to those submitted would protract this opinion without changing the result. A valid theory of liability adequately proved does not warrant judgment in the absence of damage properly found by the jury. Implied warranty of merchantability in a real estate transaction is not reached, neither is recovery of damages for mental anguish nor numerous other legal issues presented in the appeal. It is deemed pertinent, in view of the disposition to be made of the appeal, to mention that the warranty implied in the sale of a new dwelling house, at the time of the transaction between Littleton and Woods, is discussed in Humber v. Morton, 426 S.W.2d 554 (Tex.1968), and a comparison of warranty and negligence theories of liability may be found in 63 Am.Jur.2d, Products Liability, Sec. 3.

Statutory Actions

After the jury returned its verdict, counsel for Woods moved the Court for judgment on the verdict. The judgment requested was $30,000.00, that being three times the amount of actual damages found by the jury ($5,000.00 in reduction in value of the house and lot and $5,000.00 mental anguish), together with $4,000.00 attorney fees assessed by the jury. Tex.Bus. & Comm.Code, Sec. 17.50, was cited as authority for the judgment prayed. Littleton moved for judgment notwithstanding the verdict. Both motions were overruled and judgment as initially stated was entered. Woods has briefed a cross-point asserting that the Trial Court erred in not awarding treble damages because Tex.Bus. & Comm. Code, Sec. 17.50(b) makes treble damages mandatory.

The trial petition alleged that on or about the 10th day of November, 1972, Woods bought the house and lot in suit from Lit-tleton relying upon representations and warranties heretofore noted. The Deceptive Practice Act became law May 21,1973, with provision that it would not be retroactive in effect. After complaint, Littleton undertook modification work on the septic tank system which was completed in June of 1973 and at that time represented the system would be adequate. Littleton defended on the ground that the Consumers Protection Act had no application because: (1) it was not in effect when the sale was made, and (2) that if it should be held that the Act was in effect, the Act did not, at the time of the sale, apply to a sale of real property. The defenses interposed by Lit-tleton in this case were asserted in Cape Conroe, Limited v. Specht, 525 S.W.2d 215 (Tex.Civ.App., Houston 14th Dist.1975, no writ). The facts and circumstances giving rise to the present litigation are materially different from those in the Cape Conroe case, though the defense was the same in both. The opinion in the Cape Conroe case sustains Littleton’s defenses and controls disposition of Woods’ cross-point. Appel-lee’s cross-point is overruled for this reason as well as for the reasons previously discussed, that the damage issues found by the jury would not support a judgment.

Disposition

The ambivalent approach in the trial court to both common law and statutory actions and relief indicate a mixed conception of the theory upon which liability and relief should be rested under the pleadings and proof. In this appeal, as in Cape Conroe Limited v. Specht, supra, it appears the case was tried upon a wrong theory and that under the facts that might be proved if pled and tried on a proper theory, Woods might justly prevail. The judgment of the Court is reversed and the case remanded.

      . The jury’s answer to Special Issue 6 recited the house was not constructed in good and workmanlike manner but did not mention its suitability or lack of it for human habitation.