author: DOUGLAS, Judge. ODOM, Judge, ONION, Presiding Judge,

text:
    Oscar M. DOVALINA, Appellant, v. The STATE of Texas, Appellee.
    No. 53797.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 22, 1978.
    Rehearing En Banc Denied May 3, 1978.
    Will Gray, Houston, court-appointed, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Henry K. Oncken, Asst. Dist. At-tys., Houston, for the State.
   OPINION

DOUGLAS, Judge.

Appellant was convicted for the offense of attempted capital murder of a policeman under V.T.C.A., Penal Code, Sections 15.-01(a) and 19.03(a)(1). The jury assessed punishment at 50 years.

At approximately 6:05 p. m. on May 23, 1975, Department of Public Safety Narcotics Agent Powell and Detective Bush of the Harris County Sheriff’s Department, went to the Houston apartment of James Tatum to arrest appellant and a female companion, Sylvia Nerios, pursuant to two arrest warrants for delivery of controlled substances. Tatum admitted the officers in the apartment, at which time Bush and Powell identified themselves as police officers. The officers discovered appellant and Nerios upstairs in the apartment, arrested them and seated them downstairs. Tatum was also arrested. Detective Bush went upstairs and found a M-l carbine loaded with a clip in the bottom.

Nerios and appellant were handcuffed together and placed in the backseat of the Department of Public Safety car with appellant in the middle and Tatum, who was not handcuffed, on the left side. Officer Powell then drove the car with Detective Bush seated beside him in the front seat to a Steak and Ale Restaurant on Northwest Freeway to inform Sergeant Murray of the Department of Public Safety that the arrest had been made. As Bush entered the restaurant, Officer Powell remained in the car with the prisoners. As Powell was turning the vehicle around in the parking lot, appellant, who was still handcuffed, grabbed him around the neck and started stabbing him with a knife. Tatum took this opportunity to escape.

During the struggle appellant stabbed Powell in the top of the head, in the cheek, across the nose and in the groin. In the meantime Nerios escaped from the handcuffs, crawled to the front seat and grabbed Powell’s service revolver that had fallen on the floorboard. Appellant said to Nerios: “Get the pistol, Sunshine, and shoot him.” She pointed the pistol at Powell and pulled the trigger twice. The pistol did not fire because the safety was engaged. Appellant, Nerios and Powell continued to struggle for the pistol between the front and rear seats of the car. Powell was able to obtain the pistol as he continued to fight appellant. Powell testified, “. . .he (appellant) at first had control of the weapon and had it pointed at me and I got it turned around and got control of it and he had his finger behind the trigger in the trigger guard. . . .” Appellant was not able to fire the weapon. As the struggle continued Nerios got the M — 1 carbine from under the front seat and inserted the ammunition clip and pointed the gun at Powell. Powell managed to escape from the car and ran toward the restaurant, meeting Detective Bush. Appellant fired at the officers, Bush fired a shot at appellant. Nerios and appellant attempted to leave the parking lot in the police car with appellant driving. The car stalled and appellant got out of the driver’s side and fired a shot in the officers’ direction, missing both of them. Bush fired a total of five shots before Nerios and the appellant drove away in the police car.

Their flight through Houston eventually led them to a Boise Cascade warehouse where they stole a janitor’s 1970 Mustang. They were finally apprehended in this car after a high-speed freeway chase in which appellant attempted to fire the M — 1 carbine at the pursing Houston police officer.

Although not raised at the trial, appellant contends that the indictment was fundamentally defective because it did not allege that the criminal attempt was made with the specific intent to commit the offense of capital murder. The indictment, in substance, alleged that appellant

“. . on or about May 23, 1975, did then and there unlawfully, knowingly and intentionally attempt to cause the death of Jerry Powell by cutting and stabbing him with a knife and by shooting him with a gun, the said Jerry Powell being a peace officer acting in the lawful discharge of his official duties and the said Defendant then and there knew the said Jerry Powell was a peace officer acting in the discharge of his official duty.”

V.T.C.A., Penal Code, Section 15.01(a), defines criminal attempt as follows:

“(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.”

Capital murder of a peace officer is defined in Y.T.C.A., Penal Code, Section 19.03(a)(1), as follows:

“(a) A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and; “(1) the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman.”

The dissent would hold the indictment fundamentally defective because it did not allege that the assault was made with the specific intent to commit murder. A fairly recent case controlling the questions is Lucero v. State, 502 S.W.2d 750 (Tex.Cr.App.1973). Lucero was convicted for the offense of assault with intent to commit robbery. Instead of alleging that he made an assault with intent to commit the robbery, the indictment charged that there was an “attempt” to fraudulently take the property. This Court held:

“The word ‘attempt’ is used only once and appears to be properly used. See 4 Branch’s Ann.P.C.2d, ed., Section 1891.1, page 221. Under any circumstances it would not appear that the use of the word ‘attempt’ instead of the word ‘intent’ would vitiate the indictment. McCutcheon v. State, Tex.Cr.App., 363 S.W.2d 457, 459.”

The former penal code, Article 1160, provided:

“If any person shall assault another with intent to murder he shall be confined in the penitentiary for not less than two years nor more than life. . . . ”

Article 1162 of the former penal code provided:

“If any person shall assault a woman with intent to commit the offense of rape, he shall be confined in the penitentiary for any term of years not less than two.”

This Court held that under Article 1162, supra, the word “attempt” instead of “intent” may be alleged. Greenlee v. State, 4 Tex.App. 345 (1878). Fowler v. State, 66 Tex.Cr.R. 500, 148 S.W. 576 (1912).

In Small v. State, 116 Tex.Cr.R. 41, 32 S.W.2d 860 (1930), the Court held that an indictment charging the defendant with making an assault with intent to “kill” charged an assault with intent to murder under Article 1160, supra. In Beal v. State, 520 S.W.2d 907 (Tex.Cr.App.1975), the conviction was for murder under the former code. The indictment alleged that “. . . Beal . . .did murder with malice aforethought kill Michael Martelli, by shooting him with a gun . . . .” The Court held that the inclusion of the extra word “murder” is surplusage when “kill” is also alleged.

In the earlier cases of Shields v. State, 32 Tex.Cr.R. 498, 23 S.W. 893 (1893); Passmore v. State, 29 Tex.App. 241, 15 S.W. 286 (1891), this Court held that the assault must be accompanied with the specific intent to commit rape. Even in light of those holdings the Court, as noted above, held that the word “attempt” was sufficient to allege intent and the word “intent” did not have to be alleged.

In Black’s Law Dictionary, Revised 4th ed., attempt “implies an intent and an actual effort to carry out or consummate the intent or purpose.” Branch’s Ann.P.C.2d, Section 1866, quotes the correct rule:

“ ‘Attempt’ is a word more comprehensive of meaning than the word ‘intent’ and includes the latter. . . . ”

For other cases holding that attempt may be substituted for intent see Atkinson v. State, 34 Tex.Cr.R. 424, 30 S.W. 1064 (1895); Runnells v. State, 34 Tex.Cr.R. 431, 30 S.W. 1065 (1895), and Lucero v. State, supra.

In Mosely v. State, 70 S.W. 546 (Tex.Cr.App.1902), the conviction was for assault with intent to murder. Mosely complained that the court erred in not instructing the jury in his charge on assault with intent to murder that the jury must find that the defendant had the specific intent to kill, his contention being that the word “specific” was omitted from the court’s charge. The Court noted that the charge required the jury to find beyond a reasonable doubt before they could convict that there must have been an assault with intent to murder on the part of the defendant and held that where the court instructed the jury that there had to be an intent to kill that the word “specific” did not have to be used. Watts v. State, 207 S.W.2d 94 (Tex.Cr.App.1947), followed the holding in Mosely.

Other cases under the former penal code have been construed with regard to the allegation of “specific” intent to commit an offense. Notwithstanding the former code’s requirement that there be a specific intent to kill, prior decisions have held that an indictment need not allege the word “specific.”

The Code Construction Act, V.A.T.S., 5429b-2, Section 2.01, provides:

“Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition, or otherwise, shall be construed accordingly.”

Section 3.03 provides:

“In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the << ⅛ * ⅜
“(4) common law or former statutory provisions, including laws upon the same or similar subjects;

Some of the cases discussed above cover common law and former statutory provisions upon the same or similar subjects. The meaning of the words “attempt” and “intent” have not changed with the adoption of the present penal code.

Baldwin v. State, 538 S.W.2d 615 (Tex.Cr.App.1976), held:

“Since the appellant makes no complaint about the sufficiency of the indictment we do not reach the question of whether an indictment for attempted murder must specify murder . . . .”

The dissent is contrary to the Baldwin case. In the present case as in the Baldwin case there was no motion to quash. Murder, according to Baldwin, does not have to be mentioned in the indictment.

Victory v. State, 547 S.W.2d 1 (Tex.Cr App.1977), is distinguishable. It was reversed because the indictment did not allege that the acts of the defendant were with “intent to arouse or gratify the sexual desire of any person.”

In the present case the indictment alleged that appellant intentionally attempted to kill. This alleges the offense because attempt includes the word intent. V.T.C.A., Penal Code, Section 15.01(a). Garcia v. State, 541 S.W.2d 428 (Tex.Cr.App.1977), holds that the State did not have the burden of proving that a defendant had the specific intent to commit murder in an attempted murder case.

The Legislature has provided that the exact words in defining an offense do not have to be alleged in an indictment. Article 21.17, V.A.C.C.P., Following Statutory Words, provides:

“Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.”

The indictment alleges that the attempt to kill Officer Powell was by cutting and stabbing with a knife and by shooting him with a gun. The dissent would hold that the evidence is insufficient to support the conviction because the proof did not show that appellant shot Powell with a gun but only shot at him. The case of Lucero v. State, 502 S.W.2d 750 (Tex.Cr.App.1973), cited above, is in point. Several means were alleged for committing the offense of rape and the proof did not support all the means alleged. The Court held the evidence to be sufficient. The indictment alleged “by force, threats and fraud” and the proof offered to support his plea did not show any fraud. The Court cited Dyer v. State, 283 S.W. 820, 823 (Tex.Cr.App.1925), which held:

“. . .It has always been the rule that an indictment which charges a rape to have been committed by force, threats, and fraud, is fully sustained by proof of any one of these three methods thus alleged. . . . ”

For the same proposition, the Court cited 4 Branch’s Ann.P.C.2d, Section 1937, page 256.

In Medina v. State, 49 S.W. 380 (Tex.Cr.App.1899), the indictment charged that the death of the deceased was occasioned by the defendant by beating her with a stick and a whip and by starving her and by hanging her with a rope. Judge Henderson, speaking for this Court, wrote:

“We believe the same was a good indictment and under it, in our opinion, proof could be made of all the causes; and if any one was proved, it would be sufficient, or if all were proved, and together they cooperated to produce the death of the deceased, this could be done.”

In Helmus v. State, 397 S.W.2d 437 (Tex.Cr.App.1966), the indictment alleged that the defendant killed the deceased by striking him with his hand and killed him in some manner and by some means, instrument or weapon to the grand jury unknown. The Court held that the indictment was sufficient and wrote that the conviction under either means alleged would be sufficient.

In 1897 in Burt v. State, 38 Tex.Cr. 397, 40 S.W. 1000, 39 L.R.A. 305, 330, on rehearing in 38 Tex.Cr.R. 397, 43 S.W. 344, the Court settled the question then and the rule has been settled up until now. There, Presiding Judge Hurt wrote:

“A number of methods, modes, and instruments were alleged to have been used in the perpetration of the crime. The indictment alleges that it was ‘by then and there striking, beating, and wounding the said Anna M. Burt upon her head and face, with a hatchet and some heavy instrument, a better description of which the grand jurors are unable to give, thereby fracturing the skull and the bones of the face of the said Anna M. Burt, and by then and there tying tightly around the throat and neck of said Anna M. Burt a handkerchief, thereby strangling and suffocating the said Anna M. Burt, and by then and there wrapping around the head and body of said Anna M. Burt a blanket, and securely tying same thereon with rope, and then and there throwing said Anna M. Burt, so wrapped and tied, in a cistern partially filled with water, sufficient to submerge the body of said Anna M. Burt.’ This indictment is correctly drawn. Where there is doubt about how the death was produced, it is well to put every means suggested by proof in the indictment; and, if proof be made of one of the means, it is unnecessary to prove them all. It is not necessary to cite any authority to sustain this proposition.” (Emphasis supplied)

See also Whiteside v. State, 111 Tex.Cr. 116, 12 S.W.2d 218 (1928).

In Anderson v. State, 479 S.W.2d 57, 60 (Tex.Cr.App.1972), this Court wrote:

“1 In situations such as this, to avoid possible variance, an indictment could be presented alleging in the conjunctive ‘all possible means of doing the killing, including with an instrument to the Grand Jury unknown.’ Proof of one of the means would suffice. See Helmus v. State, Tex.Cr.App., 397 S.W.2d 437 (1965), and Burt v. State, 38 Tex.Cr.R. 397, 40 S.W. 1000.”

Simon v. State, 488 S.W.2d 439 (Tex.Cr.App.1972), involved an indictment which alleged striking and beating with a fist and means to the grand jurors unknown. This Court held that it was sufficient. Another case of like result is Wall v. State, 156 Cr.R. 239, 240 S.W.2d 763 (1951), where the means alleged of the killing were with fists and smothering and tying the feet and leaving the deceased bound and gagged.

In Garcia v. State, 537 S.W.2d 930 (Tex.Cr.App.1976), different means were alleged for killing. The State proved one and abandoned the other. The Court noted that the proof of one of the means was sufficient.

From the above, it can be seen that proof of one of the means alleged would be sufficient to support the conviction. However, the proof supports both of the allegations in the indictment including the one that he intended to kill the officer by shooting him with a gun even though the bullet did not hit the officer.

In the recent case of Colman v. State, 542 S.W.2d 144 (Tex.Cr.App.1976), the indictment alleged that Colman attempted capital murder of an officer by shooting him with a gun. He contended (as the appellant does in this case) that the evidence was insufficient because it showed that he only shot at the officer but missed him. The Court wrote:

“We are not impressed by this ingenious but sophisticated argument.”

The Court cited Williams v. State, 449 S.W.2d 271 (Tex.Cr.App.1969), where the same contention had been made and overruled. See also Perez v. State, 114 Tex. Cr.R. 473, 22 S.W.2d 309 (1929); McIntire v. State, 105 Tex.Cr.R. 403, 289 S.W. 48 (1926); Carr v. State, 41 Tex. 543. The correct rule is also found in 4 Branch’s Ann.P.C.2d, Section 1797, page 168.

We hold that the evidence is sufficient to support the allegations in the indictment.

Appellant complains that the court erred in refusing to charge on aggravated assault. Appellant did not testify and offered no evidence. There is no evidence that he did not intend to kill the officer. There is nothing which would show that he would be guilty of only the lesser offense of aggravated assault. See Day v. State, 532 S.W.2d 302, 308 (Tex.Cr.App.); McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974).

In Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479 (1952), Judge Morrison wrote for the Court:

“. . .At this juncture, it will be noted that, merely because a lesser offense is included within the proof of a greater offense, a charge on the lesser is not required unless there is testimony raising the issue that the appellant, if guilty at all, is guilty only of a lesser offense included in the greater offense charged.”

There was no error in the trial court’s refusal to charge on aggravated assault.

Lastly, appellant complains that the prosecutor in his argument commented on the appellant’s failure to testify. The prosecutor argued:

“The only thing that cannot be corroborated by anyone else is exactly what happened in that car and the defendant and Agent Powell and Sylvia Nerios were in that car and you heard Agent Powell tell you what happened.”

Just before the above argument was made, the prosecutor had informed the jury that practically all of what the wounded officer had testified to had been corroborated by civilian witnesses. He explained that the only testimony by the officer that was not corroborated by other witnesses “is exactly what happened in the car and the defendant and Agent Powell and Sylvia Nerios were in that car.” The agent’s testimony had sufficiently recounted what took place in the car. The prosecutor was not suggesting that no explanation as to what occurred in the car had been made.

Even if it could be said that the State was arguing that no explanation of the circumstances had been made, a reversal would not be required. Appellant was not the only other person who could have testified as to what took place in the car. Sylvia Nerios was also in the car. Beal v. State, 520 S.W.2d 907 (Tex.Cr.App.1975). No error is shown.

There being no reversible error, the judgment is affirmed.

ODOM, Judge,

concurring.

I agree that the indictment in the instant case is not fundamentally defective, but disagree with the majority’s reliance on Baldwin v. State, Tex.Cr.App., 538 S.W.2d 615, and Garcia v. State, Tex.Cr.App., 541 S.W.2d 428.

The majority cite ample authority for the proposition that the use of “attempt” in this indictment is sufficient to constitute an allegation of “intent”. Regarding these terms, the Court in Cirul v. State, 83 Tex. Cr.R. 8, 200 S.W. 1088, quoted with approval from Words and Phrases:

“The word ‘attempt’ is more comprehensive than the word ‘intent’, implying both the purpose and an actual effort to carry that purpose into execution. .
“The only distinction between an ‘intent’ and an ‘attempt’ to do a thing is that the former implies purpose only, while the latter implies both the purpose and an actual effort to carry that purpose into execution; . . . the word ‘attempt’ embraces the full meaning of ‘intent’ with something more, . . .”

The indictment in this case alleged that appellant:

“. . . did then and there unlawfully, knowingly and intentionally attempt to cause the death of Jerry Powell, by cutting and stabbing him with a knife and by shooting him with a gun, the said Jerry Powell being a peace officer acting in the lawful discharge of his official duties and the said defendant then and there knew the said Jerry Powell was a peace officer acting in the discharge of his official duties. . . .”

Although this indictment is not drafted with great clarity, and is not a model for future pleading, by a strictly grammatical alteration of its form, without changing the substance of its allegations, its content may be more clearly seen when written like this:

“. . . did then and there unlawfully, knowingly and intentionally cut and stab Jerry Powell with a knife and shoot him with a gun, the said Jerry Powell being a peace officer acting in the lawful discharge of his official duties and the said defendant then and there knew the said Jerry Powell was a peace officer acting in the discharge of his official duties, and the said defendant did thereby attempt to cause the death of the said Jerry Powell. . . . ”

From this understanding of the substance of the indictment, with the recognition that an “attempt to cause the death” of an individual necessarily includes the intent to cause the death of an individual, it cannot be denied that the indictment alleges the requisite intent to commit murder (see V.T. C.A., Penal Code Sec. 19.02(a)(1)).

While I concur in the majority’s conclusion that the indictment in this case is not fundamentally defective, I do not agree that it would be sufficient merely to allege “that appellant intentionally attempted to kill,” as suggested by the majority. The indictment must also allege the acts constituting the offense since it is fundamental that an indictment is an instrument that alleges facts and not merely a legal conclusion. This fundamental principle was discussed in Williams v. State, 12 Tex.App. 395, 400:

“What is meant by the word ‘indictment?’ . . . ” ******
“It must be framed with sufficient certainty; for this purpose the charge must contain a description of the crime or misdemeanor of which the defendant is accused, and a statement of the facts by which it is constituted, so as to identify the accusation.”
******
“ ‘The indictment must show on its face . that a person mentioned therein has done . . . such and such particular acts, at a specific time; which acts, so done, constitute what the court can see, as a question of law, to be a crime,’ etc. (1 Bish.Cr.Pro.Sec. 135)
“ ‘An indictment is the written statement of a grand jury, accusing a person therein named of some act or omission which, by law, is declared to be an offense.’ (Code Crim.Proc. art. 419. [Art. 21.01, V.A.C.C.P.])
“Chief Justice Roberts, in Hewitt v. State, 25 Texas, 722, quotes the above definition from our Code, and says: ‘At the adoption of our Constitution, and for a century previously, both in England and America, this is what was understood as constituting an indictment.’ ” * * * * * *
“We think it clear from these authorities that the meaning of the word ‘indictment’ in the Bill of Rights requires that it should state the essential acts or omissions which constitute the offense with which the party is accused. It must charge explicitly all that is essential to constitute the offense, and cannot be aided by intendments. A statement of a legal result, a conclusion of law, will not be sufficient; the facts constituting the crime must be set forth, that the conclusion of law may be arrived at from the facts so stated.” (Emphasis added throughout.)

This early case dramatically illustrates the principle:

“The charging part of the indictment is as follows: ‘Joseph Brinster, an adult male did rape Mrs. Mattie McL. Davis, a female.’
“This indictment does not allege a single act which enters into and composes one of the elements of rape. An indictment is a written statement of a grand jury, accusing a person therein named of some act or omission punished by law. Subjecting the indictment in this case to the above definition, it evidently follows that it is no indictment at all.” Brinster v. State, 12 Tex.App. 612, 613. (Emphasis added.) See also Drye v. State, 14 Tex.App. 185, 191.

A criminal accusation that merely alleges a legal conclusion is not an indictment; to be an indictment the instrument must allege facts. An allegation that appellant attempted to kill, without more, would be insufficient. See Drye v. State, supra.

I am also unable to agree with the majority’s reliance on Baldwin v. State, Tex.Cr. App., 538 S.W.2d 615, and Garcia v. State, Tex.Cr.App., 541 S.W.2d 428. Those cases should be overruled. By the strange logic used in those two cases the Class A misdemeanor of attempted aggravated assault under V.T.C.A., Penal Code Secs. 15.01(a) and 22.02(a)(1) is treated as attempted murder.

In Baldwin v. State, supra, the majority construed Sec. 15.01, supra, in conjunction with murder under See. 19.02(a)(2), to reach the conclusion:

“A specific intent to kill is not required under V.T.C.A. Penal Code, Sec. 19.-02(a)(2) for the offense of murder to be committed. The specific intent, therefore, required under V.T.C.A. Penal Code, Sec. 15.01 [for attempted murder] would not be a specific intent to kill but need only be the intent to cause serious bodily injury.”

In Garcia v. State, supra, this position was again taken:

“[T]o prove an ‘attempted murder’ it is sufficient if the accused has the intent to cause serious bodily injury and commits an act ‘amounting to more than mere preparation’ that could cause the death of an individual but fails to do so.”

Section 15.01(a), supra, provides:

“A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.” (Emphasis added.)

Baldwin misconstrued the requirement of a specific intent to commit an offense by stating that the accompanying specific intent to cause serious bodily injury, required for murder under Sec. 19.02(a)(2), would suffice. Such intent to cause serious bodily injury is not the same as the intent to commit the offense of murder. A killing under Sec. 19.02(a)(2) is murder notwithstanding the fact that no murder was intended. And for precisely that reason, Sec. 19.02(a)(2) may not support an attempted murder prosecution: A prosecution for an attempted offense will lie only if there is an intent to commit such attempted offense. The intent to cause serious bodily injury relied on in Baldwin and Garcia, supra, is the intent to commit aggravated assault under Sec. 22.02(a)(1), supra, and if such intent accompanies an act that tends but fails to effect serious bodily injury, the offense is attempted aggravated assault, not attempted murder. If the act does cause serious bodily injury, the offense is aggravated assault, not attempted murder. Section 19.02(a)(1) is the only form of murder that requires an intent to murder, and since Sec. 15.01(a) requires an intent to commit the offense attempted, only Section 19.02(a)(1) will support attempted murder.

I concur in the holding that the indictment before us is not fundamentally defective for the reasons stated at the beginning of this opinion; I do not, however, agree that a legal conclusion would be sufficient to constitute an indictment, nor is the State relieved of the burden to prove a specific intent to kill, and to that purpose Baldwin and Garcia, supra, should be overruled.

ONION, Presiding Judge,

dissenting.

Appellant argues that the indictment in this case was fundamentally defective as it failed to allege that the criminal attempt was made with the specific intent to commit the offense of capital murder. The indictment alleged in pertinent part that appellant:

“. . . on or about May 23,1975 did then and there unlawfully, knowingly and intentionally attempt to cause the death of Jerry Powell, by cutting and stabbing him with a knife and by shooting him with a gun, the said Jerry Powell being a peace officer acting in the lawful discharge of his official duties and the said defendant then and there knew the said Jerry Powell was a peace officer acting in the discharge of his official duties . . ..”

“Criminal Attempt” is defined in V.T. C.A., Penal Code, § 15.01(a), which provides:

“(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.” (Emphasis supplied.)

Under this statute the elements necessary to establish an offense are (1) a person, (2) with specific intent to commit an offense, (3) does an act (amounting to more than mere preparation, (4) that tends, but fails, to effect the commission of the offense intended. See 1 Branch’s Ann.P.C., 3rd ed., p. 634; Green v. State, 533 S.W.2d 769 (Tex.Cr.App.1976) (Dissenting Opinion at p. 771).

In Baldwin v. State, 538 S.W.2d 615 (Tex.Cr.App.1976), it was stated:

“A person commits the offense of criminal attempt under V.T.C.A., Penal Code, § 15.01, if, first, with the specific intent to commit an offense he, second, does an act amounting to more than mere preparation that third, tends but fails to effect the commission of the offense intended.”

Under the former Penal Code there were such specific attempt crimes as attempted abortion, attempted arson, attempted burglary, attempted rape, etc. The foregoing section (15.01) of the new Penal Code replaces all these type statutes and provides a general attempt statute under which the attempt to commit any offense is an offense. Under the new Penal Code scheme of things one of the elements necessary to establish an offense under the statute was a specific intent to commit an offense.

In the Practice Commentary to V.T.C.A., Penal Code, § 15.01, it is written in part:

“Before an attempt to commit an offense can be punished, the attempt itself must be defined as an offense, Blanchette v. State, 125 S.W. 26 (Cr.App.1910), and prior law contained numerous statutes that defined attempt and related crimes in terms of a specific object offense. For example, it was an offense to attempt to rape, Penal Code art. 1190; to assault with intent to rape, art. 1162, or murder, art. 1160, or rob, art. 1163; to attempt to escape, arts. 353b, 353d; to attempt arson, art. 1316, or wilful burning, art. 1326; and to attempt burglary, art. 1402. Section 15.01, on the other hand, is a general attempt statute that represents a new approach to the law of attempt in Texas: criminal attempt, as defined in this section, applies in conjunction with all of the offenses defined in the Penal Code. (It may not apply to offenses defined outside the code however; Section 1.03(b) provides that only Titles 1, 2, and 3 of the code apply to outside law and the penalties of outside law do not correspond to this code’s classification system.) Under the general attempt statute, the elements necessary to establish criminal attempt and the penalties for its commission are uniform, while under prior law the elements of and penalties for an attempt varied depending on the particular offense attempted.” U * * *
“Section 15.01 defines attempt in traditional terms, cf. Lovett v. State, 19 Tex. 174 (1856); Penal Code art. 1402. To constitute attempt, there must be an act, which must be performed with intent to commit a crime. (Although attempt purports to be available for all offenses, it is improbable that a person will perform an ‘act’ with intent to commit a crime of omission, see the definition of ‘act’ in Section 1.07, and impossible that a person ‘intend’ to commit a crime involving recklessness or criminal negligence.) An act and intent alone, however, will not suffice for attempt. The actor’s conduct must progress beyond ‘mere preparation’ and must tend to effect commission of the crime. (( ‡ * *

It is clear from what has been said above that under the approach adopted by the new Penal Code the elements necessary to establish criminal attempt under the general attempt statute are uniform, and that one of the new elements is the specific intent to commit an offense.

Citing cases decided under former codes, the majority holds that the allegation of “attempt” is sufficient to allege “a specific intent to commit” an alleged crime. It is observed that in Green v. State, supra, it was held that an indictment under the general attempt statute which failed to allege the act constituting the attempt was not fundamentally defective, overruling Fonville v. State, 62 S.W. 573 (Tex.Cr.App.1901). In light of today’s majority holding and the decision in Green, the mere allegation of “attempt” as a conclusion in an indictment for the attempted capital murder of a peace officer is sufficient to allege “the specific intent to commit [the offense of] capital murder,” a necessary element of the general attempt statute, and further such indictment need not set forth what the defendant did in the attempt to commit capital murder without the same being fundamentally defective.

For the failure of the indictment to allege that the appellant had the’specific intent to commit capital murder, I would find the indictment fundamentally defective.

ROBERTS, PHILLIPS and DALLY, JJ., join in this dissent.

      . In 1 Branch’s Texas Annotated Penal Statutes, 3rd ed., § 15.01 sets out a suggested form for an indictment for attempted murder as follows:
      “_did then and there attempt to cause the death of_by_(shooting him with a gun) having at the time the specific intent to commit the offense of murder.” (Emphasis supplied.) Morrison and Blackwell, New Texas Penal Code Forms, § 15.01, p. 5, sets forth the following: “(Commencement Form) A. B., on or about the_day of_, 19_, in the county and state aforesaid, did then and there with the specific intent to commit the offense of _ (specify, such as ‘burglary’) did then and there attempt to_(set out the offense attempted as in a complaint such as ‘did then and there, without the consent of C. D., the owner thereof, attempt to enter a building not then and there open to the public, with intent to commit theft’), said attempt amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.”


source: Caselaw Access Project

author: HALL, Justice,

license: Public Domain

text:
    CITY OF WACO, Appellant, v. Alice L. HAYNES, Appellee.
    No. 5746.
    Court of Civil Appeals of Texas, Waco.
    Feb. 16, 1978.
   HALL, Justice,

concurring.

I concur in the affirmance of the judgment. However, in doing so, it is necessary that I express my views on certain issues discussed in the majority opinion.

The evidence shows that the offset in the crack in question was from one-half inch to one inch in height. It was located directly in front of a door, and at the base of the steps leading up to the door, which was provided by the City for the frequent use of aged persons for entry into and exit from the Recreation Center. Under these circumstances, I agree with the majority’s holding that the defect was not trivial. See Stinnett v. City of Waco, 142 Tex. 648, 180 S.W.2d 433 (1944). I do not agree, however, that it was latent.

The City’s first point of error in which it is asserted that plaintiff was charged in law with notice, knowledge, and appreciation of the premises defect is based upon an assignment in the City’s motion for judgment non obstante veredicto. The record does not show that this motion was presented to nor acted upon by the court. Therefore this complaint is not before us for review, and I concur in overruling it solely upon this ground.


author: PEDEN, Justice.

text:
    Kokila Shah GANDHI, Appellant, v. Bharat H. GANDHI, Appellee.
    No. 17074.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 2, 1978.
    Hirtz & McDonough, Ted Hirtz, Houston, for appellant.
    Beaumont Martin, Houston, for appellee.
   PEDEN, Justice.

Mr. Bharat Gandhi sued Kokila Gandhi, a resident of India, for divorce. Bharat Gandhi took a non-suit, and the motion of Mrs. Gandhi’s attorneys ad litem for reasonable attorneys’ fees was denied. We agree with the appellant and with the trial judge’s subsequent conclusion that the denial constituted error.

Bharat Gandhi is a resident of Harris County. Citation was served on Mrs. Gandhi by registered mail pursuant to Rule 109a, Texas Rules of Civil Procedure. She replied by letter and stated that she was arranging to file an answer through her solicitors. When no answer was filed, the court appointed Mr. Elliott T. Gerstenhaber and Mr. Ted Hirtz her attorneys ad litem under Rule 244, T.R.C.P. They filed a special appearance, a general denial, a motion to rule plaintiffs for costs and a motion for temporary alimony.

When the trial judge ordered the plaintiff to deposit $2500 as security for costs, he took a non-suit. The court entered it and denied Mrs. Gandhi’s prayer for $995 attorneys’ fees, signing his order on July 20, 1977; a motion for new trial had been filed on July 15. The trial judge denied the claim for attorneys’ fees at a hearing on the motion for new trial on August 15, then called a rehearing, sua sponte, on September 9 and confessed error in denying the motion but concluded that he had lost jurisdiction over the matter. We believe the court still had jurisdiction on September 9, because 30 days had not elapsed since the denial of appellant’s motion for new trial. Reese v. Piperi, 534 S.W.2d 329, 330 (Tex. 1976); Tex.R.Civ.P., Rule 329b 5. Appellant does not, however, directly attack any of the problems which occurred at the post judgment proceedings.

Appellant’s sole point is that the trial court erred in denying fees to the appointed attorneys when the plaintiff took a non-suit. Rule 244 states that “[tjhe court shall allow such attorney a reasonable fee for his services, to be taxed as part of the costs.” The Fourteenth Court of Civil Appeals has held that the court has the duty to award reasonable attorney’s fees to an appointed attorney.

“The attorney ad litem is an officer of the court. He is to be paid a reasonable fee for the service which he renders. Such fees are assessed as costs of suit.” Estate of Tartt v. Harpold, 531 S.W.2d 696, 698 (Tex.Civ.App.1975, writ ref., n. r. e.).

The fact that the plaintiff voluntarily took a non-suit does not relieve him from his duty to pay costs. Once a plaintiff formally abandons his cause of action, costs are taxable against him. J. C. Hadsell & Co. v. Allstate Insurance Co., 516 S.W.2d 211, 213 (Tex.Civ.App.1974, writ dism.); Bridewell v. Clay, 185 S.W.2d 170,172 (Tex. Civ.App.1944, writ ref.)

Reversed and remanded to the trial court for the awarding of reasonable attorneys’ fees and the taxing of costs.


author: J. CURTISS BROWN, Chief Justice. CIRE, Justice, J. CURTISS BROWN, Chief Justice.

text:
    COASTAL INDUSTRIAL WATER AUTHORITY et al., Appellants, v. HOUSTON LIGHTING & POWER COMPANY, Appellee.
    No. 1773.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 8, 1978.
    On Motion for Rehearing April 12, 1978.

      Robert M. Collie, Jr., City Atty., Fred R. Spence, Jr., Asst. City Atty., F. Russell Kendall, Michael E. Alexander, Vinson & Elkins, Houston, for appellants.
    Hugh R. Kelly, John C. Allen, Baker & Botts, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from an order temporarily enjoining the condemnation of an easement for public use.

The Coastal Industrial Water Authority (CIWA or appellant) is a governmental agency of the State of Texas. CIWA was created to prevent the depletion of underground water supplies, and resulting land subsidence, in Liberty, Chambers and Harris Counties. It attempts to prevent the depletion of underground water by agricultural and industrial users by supplying surface water from the Trinity River to those users. In order to transport surface water from the Trinity River in Liberty County to industrial and agricultural users in Harris County, CIWA has developed a system of surface canals and underground water pipelines. CIWA has acquired the land on which the canals and pipelines are located by purchase and by condemnation. CIWA is vested with the authority to acquire either the fee simple title to or an easement on private and public lands by purchase or condemnation. Tex.Rev.Civ.Stat.Ann. art. 8280-355, § 3 (Cum.Supp.1967); Tex. Water Code Ann. § 51.123 (1972).

CIWA commenced negotiations with Houston Lighting & Power Company (HL&P or appellee) in 1972 in an attempt to acquire a permanent easement for a CIWA water pipeline across a 13.09 acre strip of land on the appellee’s Sam Bertron Generating Station in Harris County, Texas. HL&P is a Texas corporation that is engaged in the business of generating and supplying electrical energy for industrial, commercial and residential purposes in the City of Houston and surrounding areas. On August 18,1977, CIWA notified HL&P that if CIWA could not purchase the permanent 13.09 acre pipeline easement and a temporary 2.89 acre construction easement it would attempt to acquire them by condemnation.

HL&P instituted an action for declaratory and injunctive relief in district court on August 26, 1977. HL&P claimed, in its original petition, that CIWA’s attempted acquisition of the easements is unauthorized, and that it would effectively destroy the public use to which the property previously has been dedicated by HL&P. The Board of Directors of CIWA passed a resolution on September 6, 1977, declaring that public convenience and necessity require the acquisition of the two easements by eminent domain. On the following day, CIWA initiated condemnation proceedings in the County Civil Court at Law No. 1 of Harris County, and special commissioners were appointed and sworn in by that court. The special commissioners set a condemnation hearing for September 22, 1977. On September 22, 1977, however, the District Court for the 133rd Judicial District of Texas granted a temporary injunction, which enjoined CIWA

from taking, or attempting to take, by condemnation proceedings or otherwise, temporary or permanent easements across the plaintiff’s Sam Bertron Electric Generating Station plant site for water pipeline purposes, and directing [it] to dismiss all pending condemnation proceedings pertaining to such easements.

In its appeal from the temporary injunction, CIWA has assigned seven points of error.

CIWA asserts, in its first two points of error, that the district court lacked jurisdiction to enjoin CIWA from prosecuting the condemnation proceedings in the county civil court at law. When a public entity vested with eminent domain powers institutes condemnation proceedings by filing a statement in a county court at law, the court appoints three special commissioners to determine the value of the property. Tex.Rev.Civ.Stat.Ann. art. 3264, §§ 1 — 2 (1968). After the value is determined by the special commissioners, the condemnor may deposit with the court an amount of money equal to that value and immediately take possession of the property and devote the property to its own use. Tex.Rev.Civ.Stat.Ann. art. 3268, § 1 (1968), and § 2 (Supp.1978). CIWA correctly maintains that if the county civil court at law determines, in a final trial on the merits, that CIWA lacks the right to condemn the easements, the court may order CIWA to relinquish possession of the easements, remove the pipeline, and compensate HL&P for any damages sustained as a result of CIWA’s possession. Tex.Rev.Civ.Stat.Ann. art. 3268, § 3 (1968).

There was testimony in the district court tending to show that CIWA’s acquisition of the easements would materially impair construction planned by HL&P for 1978. The expense to the public of such an impairment of HL&P’s planned public use of the property could be great. The construction of a pipeline and its subsequent removal by CIWA pursuant to an order of the county civil court at law, likewise, might be prohibitively expensive. As HL&P points out, therefore, to allow CIWA to acquire the easements in this case is to present the county civil court at law with a fait accom-pli. The record reflects that the district court was concerned by these considerations, and we share that concern. The district court would be an ideal forum for determining whether CIWA has a right to condemn the easements. CIWA has a statutory right to file a counterclaim for condemnation in the district court in HL&P’s suit for declaratory judgment and injunc-tive relief. Tex.Rev.Civ.Stat.Ann. art. 3269 (1968). Had CIWA done so, we have no doubt that it could have received a speedy adjudication of its right to condemn the easements by obtaining a preferential setting to settle this important public question. Such an adjudication would be preferable to allowing CIWA to acquire the easement and commence costly construction of the pipeline prior to a determination in the county civil court at law as to which is the superior of the two conflicting public purposes. If we were writing on a clean slate, therefore, we would uphold the temporary injunction and permit the district court to preserve the status quo.

We are not free to reach that decision, however. We are bound by prior decisions holding that a district court lacks jurisdiction to enjoin condemnation proceedings instituted in a county court at law, even though the proceedings were begun after the filing of a suit for declaratory relief in the district court. Trinity River Auth. v. Southland Paper Mills, Inc., 448 S.W.2d 516 (Tex.Civ.App.—Beaumont 1969, no writ); see State v. Giles, 368 S.W.2d 943, 946 (Tex.Sup.1963); c£, e. g., Tonahill v. Gulf States Utilities Company, 446 S.W.2d 301 (Tex.Sup.1969) (per curiam opinion on application for writ of error); Gulf Coast Irr. Co. v. Gary, 118 Tex. 469, 14 S.W.2d 266 (Tex.Comm'nApp.1929, opinion adopted); City of Garland v. Mayhew, 528 S.W.2d 305 (Tex.Civ.App.—Tyler 1975, writ ref’d n. r. e.); City of Houston v. Plantation Land Company, 440 S.W.2d 691 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ ref’d n. r. e.); State v. Andricks, 304 S.W.2d 566 (Tex.Civ. App.—San Antonio 1957, writ ref’d). We therefore sustain the appellant’s first two points of error.

The judgment of the trial court is reversed, the temporary injunction is dissolved, and the cause is otherwise remanded.

CIRE, Justice,

dissenting.

I respectfully disagree with the majority.

County courts originally had exclusive jurisdiction over condemnation proceedings. Wilson v. Donna Irr. Dist. No. 1, 8 S.W.2d 187 (Tex.Civ.App.—San Antonio 1928, writ ref’d). In 1971, however, the Legislature enacted article 3266a, which states in part:

The district courts of all counties in the State shall have jurisdiction concurrent with the county courts at law in eminent domain cases. The county courts shall have no jurisdiction in eminent domain cases.

Tex.Rev.Civ.Stat.Ann. art. 3266a, § 1 (Supp.1978). That statutory provision clearly removes any impediment to the district court’s exercise of jurisdiction in eminent domain matters. When HL&P filed its action for declaratory relief in the district court prior to the institution of condemnation proceedings, the district court acquired dominant jurisdiction to the exclusion of the county civil court at law. See Curtis v. Gibbs, 511 S.W.2d 263 (Tex.Sup.1974). I believe that the cases cited in the majority opinion to the contrary are inapposite, since, with the exception of City of Garland v. Mayhew, 528 S.W.2d 305 (Tex.Civ.App.—Tyler 1975, writ ref’d n. r. e.), they state the pre-1971 rule. The Mayhew case can be distinguished. There, suit was first brought in the county court at law.

I therefore respectfully dissent.

ON MOTION FOR REHEARING

J. CURTISS BROWN, Chief Justice.

While appellee’s Motion for Rehearing was pending, the Cause was settled.


author: AKIN, Justice.

text:
    ESTATE of Andrew LEE. Lucille LEE as sole surviving child of Andrew Lee, Appellant, v. CONTINENTAL TRAILWAYS, Appellee.
    No. 19399.
    Court of Civil Appeals of Texas, Dallas.
    March 8, 1978.
    Rehearing Denied April 5, 1978.

      Kim R. Thorne, Thorne, Thorne & Robertson, Grand Prairie, for appellant.
    Charles B. Guy, Dallas, for appellee.
   AKIN, Justice.

Appellant, Lucille Lee, as sole survivor of decedent Andrew Lee, instituted this wrongful death action against Continental Trailways for negligently ejecting Lee from a bus upon which he was a passenger. About an hour after he was ejected, Lee apparently was struck and killed by another vehicle near the same location. Continental Trailways asserted that Lee was ejected because he was creating a disturbance, thus causing the bus driver to fear for the safety of the other passengers. The bus company also alleged that Lee was contributorily negligent in walking upon the roadway. Trial was to a jury which found that the bus driver negligently ejected Lee from the bus and that such action was a proximate cause of his death. The jury further found that Lee walked upon the highway and was struck by a vehicle, causing his death, and that such action was negligence and a proximate cause of his death. Additionally, it found that the bus driver was justified in ejecting Lee from the bus because he had caused a disturbance on the bus and had voided on the bus driver. Finally, the jury found the bus driver seventy-five percent negligent, Lee twenty-five percent negligent, and damages in the amount of $6,214.50. • The trial court disregarded the jury findings with respect to the negligence of the bus driver and rendered judgment non obstante veredicto for Continental Trailways, and plaintiff appeals. We hold that the trial court erred in disregarding the jury findings of negligence and proximate cause with respect to the bus driver because there was evidence to support the findings. We also hold that the issues with respect to the bus driver’s justification for ejectment of Lee were not controlling issues, and hence should be disregarded. Since there is also evidence of contributory negligence, the jury’s finding that his negligence contributed twenty-five percent to his death must stand. Accordingly, we reverse the judgment of the trial court and render judgment for plaintiff for $4,660.50 by reducing by twenty-five percent the total damages found by the jury because of Lee’s contributory negligence.

Appellant first argues that the trial court erred in disregarding the jury’s finding that the bus driver negligently ejected Lee from the bus, thus proximately causing his death. The bus company, on the other hand, contends that the bus company owed Lee no duty because of his conduct. We cannot agree with the bus company because a common carrier is required to exercise the highest duty of care for the safety of its passengers. St. Louis Southwestern Ry. Co. v. Varnell, 97 S.W.2d 320 (Tex.Civ.App.—Texarkana 1936, no writ). This duty is such that the common carrier must exercise a high degree of foresight as to possible dangers which it must guard the passengers against as a very cautious, prudent and competent man would do under the same or similar circumstances. City of Dallas v. Jackson, 450 S.W.2d 62, 63 (Tex.1970). Although a bus driver may have a right to eject a passenger because a passenger causes a disturbance, nevertheless, he owes a duty to eject him at a safe place. Texas Central Railroad Co. v. Rose, 172 S.W. 756 (Tex.Civ.App.—Dallas 1915, writ ref’d); Gulf C. & S. F. Ry. Co. v. Green, 141 S.W. 341 (Tex.Civ.App.—Austin 1911, writ ref’d). Thus, if a driver ejects a passenger at an unsafe place, the carrier is liable for damages proximately resulting from the ejection.

The bus company argues that the issue of ejectment at an unsafe place was not included in the issue as to whether the driver was negligent in ejecting him. We do not agree. Although the controlling issue of whether the bus driver ejected Lee at an unsafe place was not pleaded, evidence on this controlling issue was admitted without objection. Furthermore, since no objection was leveled at the negligence issue as being overly broad, and not the controlling fact-issue, we hold that the issue of ejectment at an unsafe place was submitted and answered within the ambit of the broader issue of negligent ejectment. Texas Rules of Civil Procedure 277 specifically permits submission of broad general issues.

The bus company argues, however, that the trial court was correct in rendering judgment n. o. v. for it based upon the jury’s findings that Lee voided on the driver and caused a disturbance on the bus, each of which justified the driver in ejecting him. Thus, it contends no duty was owed Lee by the bus company. We conclude that these issues are not controlling. Issues may be disregarded as immaterial where they are not grounds for rendering judgment for or against a party. Perales v. Braslau’s Furniture Co., 493 S.W.2d 638 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.); Smith v. Chase, 405 S.W.2d 450, 454 (Tex.Civ.App.—Dallas 1966, writ ref’d n. r. e.). In the present case, although these issues may bear on the bus driver’s right to eject Lee, they do not determine whether he was negligent in doing so at the particular time and place. As we have noted, supra, the right to eject a passenger does not grant the carrier the right to eject him at an unsafe place. Consequently, the answers to the issues do not support the judgment for the defendant.

We turn now to whether there is evidence to support the jury’s finding that Lee was negligently ejected at an unsafe place and that such negligence proximately caused his death. The evidence showed that Lee, an elderly man, not in good physical condition, was ejected from the bus at 1:30 a. m. at an exit ramp on an interstate highway near a small town. No lights existed at the exit and as one witness testified, it was “pitch dark.” The highway patrolman, who investigated Lee’s death, in identifying photographs depicting the area where Lee’s body was found, testified that there were no street lights at that location. Finally, there was a motel approximately 180 yards from the place where Lee was ejected. We conclude that this is evidence from which the jury could have found that the driver ejected Lee at an unsafe place. With respect to the proximate cause issue, there is testimony that Lee’s body was found approximately one hour after he had been ejected, apparently having been struck by another vehicle. From this evidence, the jury could have concluded that the driver should have foreseen that Lee would have come to harm when he ejected him at that location at night. Gulf G. & S. F. By. Co. v. Green, 141 S.W. 341 (Tex.Civ.App.—Austin 1911, writ ref’d). Since there is evidence to support the jury’s findings as to negligence and proximate cause, it was error for the trial court to disregard those answers and enter a judgment non obstante veredicto for the bus company. Douglass v. Panama, Inc., 504 S.W.2d 776 (Tex.1974).

Appellant attacks the court’s submission of the issues and the jury findings that Lee negligently walked upon the highway which proximately caused his death, on the ground that there was no evidence, and alternatively insufficient evidence, to support the submission of the issues, and the jury findings on these issues. We cannot agree. There is testimony that he was ejected on the side of the roadway rather then in one of the main traffic lanes. His injuries and the location of his body provides circumstantial evidence tending to show that Lee was probably on the roadway when struck. From this, the jury could reasonably conclude that Lee had walked on the highway where he was struck by a vehicle and that such act was negligence proximately causing his death. Accordingly, the trial judge was correct in submitting these issues to the jury. Since the jury found that this negligence on the part of Lee contributed twenty-five percent to his death, we must reduce the damages found by this percentage.

Appellant argues, however, that since the negligence of the bus driver set in motion the chain of events finally resulting in Lee’s death, what Lee did thereafter was immaterial, citing McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442, 447-8 (1941). In McAfee, the supreme court quoted with approval from the Restatement of the Law of Torts, Vol. II, p. 1184, § 439, the following: “If the effects of the actor’s negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person's innocent, tortious or criminal act is also a substantial factor in bringing about the harm does not protect the actor from liability.” [Emphasis added] Although this rule states the law, it is inapplicable here because this rule applies only where the subsequent act was an act by a third party; it does not apply where the act is committed by the injured party, as here.

Accordingly, we reverse the judgment of the trial court and render judgment for the plaintiff for $4,660.50.


author: MASSEY, Chief Justice.

text:
    Margaret MAXWELL and the Town of Flower Mound, Appellants, v. Bernard WHITE, Appellee.
    No. 17943.
    Court of Civil Appeals of Texas, Fort Worth.
    March 9, 1978.
    Hutchison, Price & Boyle, and John F. Boyle, Jr., Dallas, for appellants.
    Randall S. Boyd, Denton, for appellee.
   OPINION

MASSEY, Chief Justice.

For several years prior to and including the calendar year 1976 Bernard White owned 246 acres of land in the municipal limits of the Town of Flower Mound. At all material times White’s use thereof was for the raising of livestock for profit. Prior to the assessment of such property for 1976 tax purposes White filed with municipal Tax Assessor-Collector for Town of Flower Mound his “Sworn Declaration of Land for Agricultural Use” upon these acres. His attempt was to have the same qualified to be assessed for tax purposes by the provisions of the Tex.Const. art. 8, § 1-d, “Assessment of lands designated for agricultural use”.

Upon the denial of White’s application by Margaret Maxwell, Tax Assessor-Collector, he filed suit for relief by way of mandamus and injunction.

White sought no temporary relief. On the appeal the matter of mandamus has ceased to be important and is disregarded. The matter of injunctive relief is considered. On this White’s prayer requested “that upon final hearing hereof Defendants, . be permanently enjoined from assessing taxes for the year 1976 on any basis other than agricultural assessment and that the Court set the value of the land for such agricultural assessment.”

While White’s suit was pending upon the docket of the court without anything done to prosecute it the Flower Mound taxing authorities proceeded with activities usual and customary to carrying its plan of taxation into effect. White did not render his property for taxation, did not appear before the Tax Board of Equalization, and did not appear before the City Council.

It was after the plan of taxation for 1976 was put into effect that White brought his suit to trial. Since he did not obtain any relief by way of mandamus we may disregard that aspect of his suit; however, following trial before the court on February 24, 1977, he did obtain injunctive relief by judgment dated April 23, 1977, enjoining Flower Mound and its Tax Assessor-Collector from assessing his property for ad valo-rem tax purposes for 1976 “on any basis other than an agricultural assessment of the land . . From this judgment Margaret Maxwell and the Town of Flower Mound have appealed.

Judgment reversed; the injunction is dissolved and the case dismissed.

It is settled law in Texas that where an aggrieved tax payer fails to avail himself of the affirmative remedies of injunction and mandamus to prevent a taxing authority from putting an invalid and arbitrary plan of taxation into effect, but waits until suit is brought against him for delinquent taxes, his right to relief is limited. Once such a plan is put into effect, in the absence of a showing, by comparison of the assessments against his property with assessments against other like property, of a gross discrimination against him, the land owner may defeat recovery of taxes only to the extent that they are excessive, and he must assume the burden of proving exces-siveness. He must show that the use of such a plan worked to his substantial injury, and the extent of such injury. No matter how much the tax plan violates the State Constitutional pattern the only relief of a taxpayer defending a delinquent tax suit is to show in dollars that he is worse off. We forego citation of authority.

In view of the above settled principle of law we have, in the case before us, this question: Has an aggrieved taxpayer thus sat idly by until the taxing authority has put its plan of taxation into effect when he has timely filed suit for injunctive relief but has done nothing more and has not brought his suit to trial?

That is exactly the situation of Mr. White in the instant case. We hold White’s position, under the circumstances, to be no different from one who neither sues nor is sued until the taxing agency has, with attention to the usual procedure as predicate therefor, put its plan of taxation into effect. White, though having filed suit for injunction — and by service of citation having given notice of the fact — could not be said to have “availed himself to the affirmative remedy of injunction” prior to having called at least some aspect of his suit to the attention of the court, with request for some action by the court. Specifically, the prayer in White’s petition for enjoinder of any but a particular assessment became worthless after there had been some other character or form of assessment in consequence of his failure to prosecute his suit.

White’s suit, by the time he brought it before the court, had become moot. See 31 Tex.Jur.2d, p. 70, et seq., “Injunctions,” III. “Principles Governing the Grant of Injunc-tive Relief,” § 23 “(Factors considered)— Effect of completed act”, and § 27 “(Factors considered) — Futility of issuance; Necessity for judicial supervision.”

The trial court having not dismissed the action, it is the authority of this court to dismiss it in the place and stead of the trial court. That such be done is the judgment of this court, coupled with order which dissolves the purported injunction granted by the trial court.

However, in the event we err in the dismissal we take occasion to state that we would, in the alternative and for other reasons, reverse the judgment of the trial court and dissolve the injunction.

Under the undisputed facts White was not qualified to claim entitlement to have his lands assessed by designation of agricultural use under the provisions of Tex.Const. art. 8, § 1-d. The Supreme Court, in Gragg v. Cayuga Independent Sch. Dist., 539 S.W.2d 861, 869, et seq. (1976), has spelled out the requirements for one to be so qualified. We quote therefrom:

“[5] We hold that a landowner seeking the agricultural use designation and assessment can qualify by discharging his burden of timely showing in a proper administrative or judicial proceeding that his land is designated for agricultural use under the terms of Sec. 1-d of Article 8, including a showing that such use in a business which is his primary occupation and source of income, without showing that his agricultural business occupies more than 50% of his time or accounts for more than 50% of his total gross income for the relevant years. It is sufficient if the landowner shows that he devotes a greater amount of time to his agricultural business than to any other occupations or businesses and that he receives more gross income from his agricultural business than from any other occupation or business. As hereafter shown, Petitioner Gragg failed to carry his burden of proof timely or satisfactorily with reference to his gross income from agriculture as compared to other business ventures.

“[6] It has been suggested that this interpretation might lead toward the frac-tionalization of other businesses conducted by a farmer-landowner in order to make his gross receipts from agricultural uses larger than any one of several of his other businesses. Tax assessors are given sufficient authority under the amendment to ferret out and ignore any such artificial arrangements designed to qualify for the special agricultural tax assessment. If a landowner-agriculturalist with a greater gross income from the oil business or any other occupation intentionally divides his business into multiple corporations or partnerships for the purpose of making his agricultural income greater than the gross income of any one of the multiple separate but related business entities, the tax assessors have the authority to deny the application and prevent wrongful use of the agricultural assessment amendment.

'‘Other Sources of Gross Income Should Include Only Business Occupations, Ventures or Investments

“[7] Petitioner Gragg contends that only sources of gross income from occupations or business ventures carried on for profit should be compared with gross income from agricultural sources in determining eligibility for the agricultural use designation. This seems to be the clear intent of the agricultural assessment amendment. Only farmers and ranchers who conduct agricultural uses of the soil ‘as a business venture for profit’ are eligible, and then only if such business venture ‘is the primary occupation and source of income of the owner.’ It would seem grossly unfair to disqualify a farmer or a rancher because of greater receipts from social security, retirement pay, or any other source which was not an occupation or business venture operated for profit. In Klitgaard, supra, \Klitgaard v, Gaines, 479 S.W.2d 765 (Tex.Civ.App.—Austin, 1972, writ ref’d n. r. e.)] it was held that proceeds from several sales of land, principal and interest payments on notes gven as partial payment for said lands, rentals from inherited commercial property, and oil and gas bonus and delay rentals from unsolicited mineral leases were occasional, isolated, and not part of any business venture. Therefore it was held that none of such receipts comprise the type of income from an occupation which must be balanced against the gross income from agricultural uses. The Court of Civil Appeals held: ‘Eligibility for benefits of the amendment is not to be determined by the vagaries of nature or the market, nor by fortuitous investment or inheritance.’

“[8] In San Marcos, supra, (San Marcos Consolidated Ind. School Dist. v. Nance, 495 S.W.2d 335 (Tex.Civ.App.—Austin 1973, writ ref’d n. r. e.)) the trial court specifically instructed the jury that it should not consider the receipt by the owner of delay rentals or bonuses from non-producing oil and gas leases on the taxed lands; use of the land for residential purposes; or the receipt by the owner of any annuities, retirement income, pensions, social security payments, or old age assistance. We approve this instruction, because none of these uses or receipts constituted income from occupations or business ventures of the landowners. The non-agricultural sources of income to be considered in determining a landowner’s ‘primary source of income’ should be those produced from his activity or business ventures in which he works or gives continuing supervision or attention. In San Marcos the jury was charged as follows:

“ ‘You are instructed that the term “income,” as used in this charge, means that which comes in or is received from any occupation or business venture or investment of capital without reference to the outgoing expenditures.’ (Emphasis added.)

“[9] We approve that construction except with reference to ‘investment of capital.’ Income from capital investments should not be considered when the receipts come from the sale of long held assets or as the consequence of an occasional purchase, sale, or investment or loan of funds. The gross income from the investment of capital should be considered only if such investments constitute an occupation or business which requires the management or continuing supervision or attention of the landowner.

“[10] Under the facts in the present case we approve the trial court’s consideration of investment income, because Mr. Gragg did not discharge his burden of proving that such receipts were not returns from related or separate business ventures or occupations.

“In both San Marcos and Klitgaard, supra, it was held that the burden is upon the landowner claiming the agricultural use designation to show the tax assessor, or a court that he is entitled to the designation. Petitioner Gragg wholly failed to attack by appeal or seek injunctive relief from the assessment of his property upon which the school district’s suit is based. He sat by and permitted the assessments to be made, the tax rolls to be prepared, and this suit for taxes to be filed against him before challenging the refusal of the tax assessor to give his land the agricultural use designation. The proper procedure would have been to seek an injunction or mandamus requiring the tax assessor to give the agricultural designation as was done in San Marcos and Klitgaard, supra.

“[11] Even if the tax assessor had been given all of the evidence on this taxpayer’s income that was introduced at the trial, the denial of the agricultural use designation would have been justified. The taxpayer’s gross agricultural income during the three calendar years of 1970, 1971 and 1972 (added together), was approximately $1 million, as compared with $1.5 million income from all other sources. He admitted that his income reported from his oil operations was ‘net’ rather than the ‘gross,’ which he contended for and reported in connection with his agricultural income. There was simply no proof of his gross income from the oil business. Neither was there any proof that the gross receipts from his oil operations or another business venture did not exceed the gross receipts from his agricultural business.

“The record fails to show that the denial of the agricultural use exemption to this taxpayer by the tax assessor was unreasonable, arbitrary or in violation of requirements of the law. The burden fell upon the taxpayer to make that showing, and the trial court and Court of Civil Appeals have correctly held that the taxpayer failed to do so. See State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569 (1954); State v. Houser, 138 Tex. 28, 156 S.W.2d 968 (1941).”

White’s proof upon trial below showed his income “per year” (which the trial court obviously considered as sufficient to show the 1976 gross income and the annual gross income for several years prior thereto) as:

Rent-Houses $ 840.00
Rent-Commercial 8,000.00
Interest 1,500.00
Stock Dividends 200.00
Agricultural activity on land involved 1,582.70
Social Security (inapplicable for consideration.)

Even if White’s rent income be calculated as applicable to the commercial property alone, without consideration of the additional income from rents, the $8,000.00 “per year” when “balanced” against the $1,582.70 gross income from agricultural activities establishes as a matter of law that White’s use of the land in question for agricultural activities did not produce sufficient gross income to make of it the primary source of his income and thus to qualify the land as taxable as “for agricultural use” by the constitutional provision in Tex. Const, art. 8 § 1-d.

To state the same thing in other words: Conceding for the purpose that the raising of livestock on such land was, as White testified, his primary occupation, yet it was not the primary source of his income; because it was not the primary source of his income within the meaning and intent of the Constitution and two requisites for “agricultural use qualification” did not co-exist, i. e., the agricultural operation was not the primary business as judged both by the commitment of effort and the receipt of income because the gross income from rents was some five or six hundred per cent greater in amount than his gross earnings from agricultural activities on the land in question. This fact positively disqualified White’s land as proper to be taxed by the “agricultural use qualification.”

Judgment is reversed; injunction is dissolved and the case is dismissed.


author: COLEMAN, Chief Justice.

text:
    John W. OVERTON et al., Appellants, v. CITY OF HOUSTON, Appellee.
    No. 17062.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 9, 1978.
    Rehearing Denied April 6, 1978.

      Sears & Burns, Will Sears, Houston, for appellants.
    Robert M. Collie, Jr., City Atty., Alan F. Levin, Sr. Asst. City Atty., Ann L. Carleton, Asst. City Atty., Houston, for appellee.
   COLEMAN, Chief Justice.

John W. Overton and William E. Averyt filed suit against the City of Houston and certain of its officers for a mandamus to compel payment of termination pay. The trial was to the court without a jury. The case was submitted to the court upon an agreed stipulation of facts and certain documentary evidence. Judgment was rendered for the defendant city solely by reason of the two year statute of limitation, Article 5526, Vernon’s Annotated Civil Statutes. The judgment will be affirmed.

The plaintiffs contend that the trial court erred in applying the two year statute of limitation because (1) the action was one to enforce a prior judgment and the ten year statute of limitation, Article 5532, Vernon’s Annotated Civil Statutes, was applicable and (2) the action was for debt where the indebtedness was evidenced by or founded upon a contract in writing and the four year statute of limitation, Article 5527, Vernon’s Annotated Civil Statutes, was applicable.

The petition on which this suit was prosecuted was entitled “Plaintiffs’ Original Petition (For Writ of Peremptory Mandamus)”. In the petition, the plaintiffs’ asserted that they were entitled to a writ of mandamus to enforce the terms of a final judgment of the district court of Harris County, Texas, 164th Judicial District, rendered in cause No. 638,254, styled John Overton, Et al, Plaintiffs vs. Louie Welch, Et al, Defendants. A copy of the judgment was attached to the petition and was introduced in evidence on the trial of this case.

The judgment entered in the 164th District Court against the City of Houston grew out of a suit by Overton and Averyts for declaratory judgment that they had been unlawfully removed from the classified civil service of the City of Houston. The judgment entered required the mayor to set aside his order discharging the plaintiffs and to direct his administrative aides to restore each of the plaintiffs to the position from which he was unlawfully removed. The court further decreed that the proper officials of the city take all necessary action to cause a warrant to issue to pay the plaintiffs all of the unpaid salary with interest due each such plaintiff from and after the date of his unlawful discharge. The court further found and declared that the order of the mayor of J anu-ary 22, 1964, was wholly null and void and ineffective to separate the plaintiffs from employment with the city, that the position in the classified civil service of the City of Houston held by each plaintiff was never lawfully abolished by the City Council of the City of Houston, and that each plaintiff is entitled to be paid the entire unpaid salary appertaining to his position from and after January 22, 1964.

As a result of this judgment, the plaintiffs were reinstated in their positions in November of 1967, and were ordered to report for work on December 1, 1967. The plaintiffs reported for work on the date designated and on the same day filed their written resignations. At this time, they requested payment for their accumulated sick leave and vacation time. The city paid them the accumulated monthly salaries as of December 1,1967, but refused to pay for the accumulated sick leave and vacation time. This suit was filed more than two years but less than four years from December 1,1967, the date the plaintiffs resigned.

On the date the judgment was entered by the 164th District Court in the Overton vs. Welch case, no money was due to the plaintiffs for accumulated sick leave and vacation time. The city had no obligation to pay an employee in the classified civil service for accumulated vacation time or unused sick leave until such time as that person terminated his employment with the city. The extent of the obligation was necessarily uncertain until that time.

The city had a legal duty to pay to the plaintiffs such sums as might be due them as of the date they terminated their employment with the city in the classified civil service. This duty was established by its ordinances establishing pay scales and fringe benefits. The judgment of the 164th District Court determined that the plaintiffs were members of the classified civil service as of the date of their resignations. At the time this judgment was entered, the plaintiffs had not communicated their intention to terminate their employment at a future date nor had the city evidenced an intention to refuse to pay to plaintiffs their accumulated sick leave and vacation time.

The district court lacks power to pass upon hypothetical or contingent situations, or determine questions not essential to the decision of an actual controversy, although such questions may, in the future, require adjudication. Firemans Insurance Company of Newark, New Jersey v. Burch, 442 S.W.2d 331 (Tex.1968). Since an adjudication of that question was beyond the power of the court at the time the judgment was entered, the plaintiffs’ right to the payments could not have been adjudicated and were not established by the judgment. Mandamus was not a proper remedy, and the ten year statute of limitation was not applicable.

The plaintiffs allege that their cause of action is based on a written contract of employment evidenced by numerous written documents in the city’s civil service file. These documents were not offered into evidence. The plaintiffs assert that this was not necessary since the judgment of the 164th District Court declared plaintiffs to be members of the classified civil service, and the rules governing the civil service of the City of Houston found in the Code of Ordinances of the City of Houston, 1958 Edition, Sections 8-23 through 8-117, require a written application for an appointment to the classified service in the City of Houston, a written certification of appointment and various other instruments in writing which clearly evidence a written contract of employment.

These rules were filed in the record several months after the case was submitted to the court for decision, but before the court had rendered its judgment. The court authorized this procedure at a hearing in open court. The record does not reflect that the city objected at that time. The city now asserts that these rules have no evidentiary value since there is no evidence that the rules filed in the record were the rules in effect at the time the plaintiffs were appointed to the civil service. This contention must be sustained. The court’s order authorized the filing of certain sections of the 1958 Edition of the Code of Ordinances of the City of Houston. It can be assumed that the sections of the code not shown to have been repealed or amended were in effect in the year 1958 and for all years thereafter. A & M College of Texas v. Guinn, 280 S.W.2d 378 (Tex.Civ.App.—Austin 1955, writ ref’d n. r. e.).

The trial court took judicial notice of the Charter of the City of Houston. This charter reflects that the classified service was instituted in the City of Houston long before the year 1958. The date the plaintiffs were employed is not shown in the pleading or stipulations of fact. There is nothing in the record to show that after the year 1958 either of the plaintiffs were placed on an eligibility list as a result of a written examination or that either of them had received a promotion since their original appointment to the classified service.

While it may be assumed that as provided by the rules, various instruments in writing pertaining to the employment of each of the plaintiffs will be found in the records maintained by the city as required by the rules, we are not free to assume that there was a written application for employment. The evidence does not establish the rules and regulations in force at the time the plaintiffs were employed and does not require a finding that the cause of action asserted by the plaintiffs is based on a written contract.

A suit seeking to enforce an obligation created by a statute is subject to the bar of the two year statute of limitations. Rose v. First State Bank of Paris, Texas, 122 Tex. 298, 59 S.W.2d 810 (1933). In Cowart v. Russell, 135 Tex. 562, 144 S.W.2d 249 (1940), the court approved the rule that in order for an action to be one for an indebtedness evidenced by or founded upon a contract in writing, the action must be between the immediate parties to the contract, or those for whose benefit it was made, or their privies, and the written instrument relied upon must itself contain a contract to do the thing for the non-performance of which the action is brought. This rule was modified in the case of International Printing Pressmen and Assistants’ Union of North America v. Smith, 145 Tex. 399, 198 S.W.2d 729 (1947), where the court said:

“ — However, it is not indispensable that the written instrument relied upon contain an expressed promise to do the things for the nonperformance of which the action is brought. It is sufficient if the obligation or liability grows out of a written instrument, not remotely but immediately, or if the written instrument acknowledges a state of facts from which, by fair implication, the obligation or liability arises. And while parole evidence is not admissible to establish the promise, it is admissible to show performance on the part of the plaintiff and a breach on the part of the defendant.”

The plaintiffs’ right to termination pay arises by virtue of the Ordinances of the City of Houston. Where a contract is made with reference to the performance of certain acts prescribed by ordinance, the contract and the ordinance will be considered together and the statute will become a part of the contract. Empire Gas and Fuel Company v. State, 121 Tex. 138, 47 S.W.2d 265 (1932). The ordinances alone, however, cannot form a contract with the plaintiffs in this case. The record must evidence a contract in writing between the plaintiffs and the city into which the ordinances can be read. In the absence of proof of such a contract in writing in this case, plaintiffs’ cause of action rests solely on the ordinances and is subject to the two year statute of limitation. City of Temple v. Brown, 383 S.W.2d 639 (Tex.Civ.App.—Austin 1964, writ dism’d); Brady v. City of San Antonio, 313 S.W.2d 355 (Tex.Civ.App.—San Antonio 1958, writ ref’d n. r. e. at 159 Tex. 42, 315 S.W.2d 597).

The case of Kiel v. City of Houston, 558 S.W.2d 69 (Tex.Civ.App.—Houston [14th Dist.] 1977, no writ history), does not conflict with our holding in this case. In Kiel, the court held that the civil service record and the writings surrounding it, especially the eligibility list for promotion to investigator, taken as a whole, constituted a contract in writing with the city. These instruments were introduced into evidence in that case. There is no such evidence in this case.

The judgment is affirmed.


text:
    Regina BRELSFORD et al., Appellants, v. Michael SCHELTZ et al., Appellees.
    No. 17052.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 9, 1978.
    Rehearing Denied April 6, 1978.

      Houchins & Tasker, Kenyon Houchins, Houston, for appellants.
    Howard & Hughes, Lynn N. Hughes, Dabney, Garwood & Holland, David C. Holland, Houston, for appellees.
   PEDEN, Justice.

Plaintiffs, Regina Brelsford and Kenyon Houchins, were denied partition of a tract of land, a portion of which defendant Allan Scheltz had conveyed to Mrs. Brelsford in payment for legal services. The court granted defendants’ motion for judgment when the plaintiffs rested their case. Plaintiffs argue that they were joint tenants and had the right to have partitioned their undivided interest in the property. We affirm.

Mary Ida Scheltz, mother of Allan and Michael Scheltz, conveyed the land in question to “Michael Scheltz, Trustee,” in 1972. No trust powers or terms were set out in this deed, but Michael Scheltz wrote to Allan Scheltz at the same time stating that he held an undivided one-half interest in the land as trustee for Allan. When Mary Ida Scheltz died in 1973, she devised all of her property equally to her two sons and appointed Michael Scheltz as independent executor. Her will has been admitted to probate and Michael has qualified as executor. Allan Scheltz conveyed 8% of his purported one-half interest in the property in question to Regina Brelsford in 1975 for performing legal services, and she assigned half of that interest to Kenyon Houchins. It is upon this conveyance and assignment that Mrs. Brelsford and Mr. Houchins base their suit.

There are no findings of fact or conclusions of law.

To establish their right to have the tract partitioned, plaintiffs-appellants had the burden of proving joint ownership and an equal right to possession with the other joint owners. Manchaca v. Martinez, 148 S.W.2d 391 (Tex.1941); 44 Tex.Jur.2d 263, Partition § 17; Vernon’s Texas Civil Statutes, Art. 6082. Appellants showed neither joint ownership nor present right to possession; they showed only that Allan Scheltz had an equitable interest, not an equitable title.

The interest of a beneficiary under an express trust is an equitable title, not a mere equitable right, but the deed from Mary Ida Scheltz to Michael Scheltz, Trustee, did not create a valid express trust under the Texas Trust Act, Art. 7425b — 7, Vernon’s Texas Civil Statutes. That act provides in part that . .a trust in relation to or consisting of real property shall be invalid, unless created, established, or declared:

1. By a written instrument subscribed by the trustor or by his agent thereunto duly authorized by writing;

2. By any other instrument under which the trustee claims the estate affected.”

The mere use of the word “Trustee” does not of itself create a trust. Costello v. Hillcrest State Bank, 380 S.W.2d 780, 782 (Tex.Civ.App.1964, no writ). In order to show an express trust, the controlling tests are that 1) the words of the settlor ought to be construed as imperative and thus imposing an obligation on the trustee, 2) the subject to which the obligation relates must be certain, and 3) the person intended to be the beneficiary must be certain. Unthank v. Rippstein, 386 S.W.2d 134, 136 (Tex.1964). The missing terms of an express trust may not be established by parol evidence. Best Investment Co. v. Hernandez, 479 S.W.2d 759, 763 (Tex.Civ.App.1972, writ ref., n. r. e.). The letter from Michael Scheltz to Allan Scheltz did not establish the terms of the trust since it is not subscribed by the trustor or her duly authorized agent.

When an express trust fails, the law implies a resulting trust with the beneficial title vested in the trustor or, in the case of the trustor’s death, in her estate and devisees. Morrison v. Parish, 384 S.W.2d 764, 767 (Tex.Civ.App.1964, writ dism’d); Ray v. Fowler, 144 S.W.2d 665, 669 (Tex.Civ.App.1940, writ dism’d, judgm. cor.); Bogert, Trust and Trustees 812 § 468 (2d ed. revised). In the case at bar, the property appears to be held in a resulting trust by Michael Scheltz for the benefit of the estate of Mary Ida Scheltz. When Allan Scheltz executed the conveyance to appellant Brels-ford the only estate he owned was a beneficial interest as a devisee under his mother’s will. There is in evidence a copy of a letter from Internal Revenue Service stating that taxes due on the estate of Mrs. Mary Scheltz on March 4, 1977 amounted to $39,-469.97. Until Allan Scheltz receives an interest in the property under the division of his mother’s estate or, possibly, by transfer from Michael Scheltz as trustee, Allan Scheltz has only a non-possessory equitable interest, not an equitable title, and neither he nor his assigns may maintain a suit for partition. Cf. Smith v. Kountze, 119 S.W.2d 721, 726 (Tex.Civ.App.1938), rev’d on other grounds, 135 Tex. 543, 144 S.W.2d 261 (1940).

Another possible result of the failure of the express trust is that Michael Scheltz holds the property in a resulting trust for the benefit of himself and Allan. Parol evidence is admissable to show the circumstances under which a resulting trust arose, Hidalgo County v. Pate, 443 S.W.2d 80, 88 (Tex.Civ.App.1969, writ ref., n. r. e.); Miller v. Donald, 235 S.W.2d 201, 205 (Tex.Civ.App.1950, writ ref., n. r. e.), and the letter from Michael to Allan is evidence of the circumstances surrounding the attempt to create a trust.

“But if, as in most cases, the conveyance in trust was voluntary, and there is no express or implied gift of the property to the trustee or another in the event of the failure of the trust, the court decrees a resulting trust for the settlor or his successors.” Bogert, Trust and Trustees 812, § 468 (2d ed. revised) (emphasis added).

Even if the letter provides evidence of an implied gift from Mary Ida Scheltz to her two sons, Allan Scheltz still holds only a non-possessory beneficial interest in the resulting trust, so neither he nor his assigns may maintain a suit for partition. See Smith v. Kountze, supra. A trustee almost universally takes possession of the trust res. Bogert, Trusts and Trustees 219, § 583 (2d ed.). Only an owner of a possessory interest may compel partition. Douglas v. Butcher, 272 S.W.2d 553 (Tex.Civ.App.1954, writ ref., n. r. e.).

Affirmed.


text:
    Byron BURNETT, Appellant, v. William JAMES, Appellee.
    No. 19437.
    Court of Civil Appeals of Texas, Dallas.
    March 14, 1978.
    Rehearing Denied April 5, 1978.

      Jay M. Goltz, Dallas, for appellant.
    Thomas Hight, Jr., Hight & Hight, Dallas, for appellee.
   AKIN, Justice.

This is an appeal from a judgment rescinding a written contract between Burnett and James and awarding James $400.00 as attorney’s fees predicated upon § 17.50(b)(4) of the Deceptive Trade Practices Act, Tex.Bus. & Com.Code Ann. (Vernon Supp.1977) which provides that a consumer may recover “any other relief that the court deems proper.” Appellant, Burnett, filed this action to recover under a retail installment sales contract for the installation of a central heating and air-conditioning unit in appellee’s home. Burnett alleged that he fully performed the agreement. When James refused to pay, Burnett chose to mature the installment note, which was a part of the agreement, and sued for the amount of the note plus 10% attorney’s fees. James answered that Burnett had breached the contract in that the unit was inadequate to properly heat and cool his residence and filed a cross-action alleging that appellant had represented that the unit was adequate to heat and cool his house and that, since it was not adequate, he was entitled to recover for a misrepresentation under the Deceptive Trade Practices Act. The trial court denied relief to Burnett on the installment note, but granted James judgment for $400.00 as attorney’s fees and for rescission of the contract based upon the Deceptive Trade Practices Act. Since James did not plead for rescission, we hold that the trial court erred in granting this remedy under § 17.-50(b)(4). Since rescission here is improper and, since no damages in monetary amounts were proven by appellee and none awarded by the trial court, we also hold that the award of attorney’s fees was improper. Because the trial court found that the unit was inadequate and not as appellant represented it to be, we remand, rather than render, in the interest of justice, so that appellee may tender evidence of monetary damage.

Appellant first argues that no violation of the Deceptive Trade Practices Act occurred because the term “adequate”' is “dealers talk” or “puffing” and not a representation of quality. He contends that this was not a warranty, but was instead an expression of opinion. In support of this contention, he points to the distinction that a warranty is a positive affirmation of facts while an expression of opinion is not a material fact since it is loose and conjectural. We need not determine whether the representation was a warranty since the Deceptive Trade Practices Act covers both warranties and representations that are false, misleading and deceptive. Consequently, we cannot agree that appellant’s representation that the heating and cooling unit would be adequate is merely an expression of an opinion under the Deceptive Trade Practices Act. Although the term “adequate” may be an opinion, when it is used by an expert in a certain field, such as here, it is an opinion on which a purchaser is entitled to rely. The statement that the unit was “adequate” was equivalent to a representation that it would heat and cool the appellee’s residence according to industry standards. The evidence here shows that the unit installed was three tons in cooling capacity and that the capacity required to adequately cool appellee’s residence was a unit of 3.27 tons. We conclude, therefore, that appellant’s representation that the unit was adequate was a misrepresentation by appellant, relied upon by ap-pellee to his detriment, and, consequently, was a violation of the Deceptive Trade Practices Act.

RESCISSION

Appellant next contends that the appellee neither pleaded nor proved grounds for rescission and that he had no prayer for such relief. We agree. In ap-pellee’s prayer, he asked the court for recovery against appellant in the amount of $7,000.00, interest and costs, and that they “be given such other and further relief, at law or in equity, to which he may show himself justly entitled.” Since no specific prayer for rescission was pleaded, our question is whether a prayer for general relief will support a judgment for rescission under the Deceptive Trade Act. We hold that it will not. The general rule is that a prayer for general relief will authorize judgment for any relief a trial court has jurisdiction to grant so long as the judgment is supported by the allegations and proof and is consistent with the theory of recovery stated in the pleadings. Jennings v. Texas Farm Mortgage Co., 124 Tex. 593, 80 S.W.2d 931 (1935); Seureau v. Mudd, 515 S.W.2d 746 (Tex.Civ.App.—Houston [14th Dist.] 1974, writ ref’d n. r. e.). However, in certain instances, the type of relief must be specifically prayed for or the trial court cannot grant it. Rescission is one of these since rescission of a contract is inconsistent with a claim for damages, based on affirmance of the contract. Freeman v. Anderson, 119 S.W.2d 1081, 1083 (Tex.Civ.App.—Waco 1938, no writ); 2 McDonald, Texas Civil Practice 36.25 (1970). Here, in the absence of a prayer for rescission, we conclude that the judgment granting this remedy cannot stand. First State Bank of Bedford v. Miller, 563 S.W.2d 572 (Tex.1978).

Appellee argues, nevertheless, that he is entitled to such relief by virtue of the Texas Deceptive Trade Practices Act § 17.-50(b)(4) which provides that in any suit filed under this act, each consumer who prevails may obtain “. . . any relief which the court deems proper . . .”. We hold that although the act permits rescission, the general rule that rescission must be specifically prayed for is still applicable. Consequently, the court erred in granting rescission.

ATTORNEY’S PEES

Appellant attacks the award of attorney’s fees on the ground that § 17.50(b) of the Deceptive Trade Practices Act provides for recovery of an attorney’s fee only when treble damages are sought and recovered. We need not address this contention because of the decision in Cordrey v. Armstrong, 553 S.W.2d 798 (Tex.Civ.App.—Beaumont 1977, no writ), which held that a consumer must prevail in his action under the Texas Deceptive Trade Practices Act in order to recover attorney’s fees. Since we have held that rescission was improper, James did not prevail under the act and, consequently, is not entitled to attorney’s fees.

RETAIL SALES AGREEMENT

Finally, appellant argues that we should enter judgment on the retail sales installment agreement because the trial court found that appellant had performed and was not paid. This we cannot do since the trial court also found that Burnett made a representation that the unit would adequately heat and cool the appellee’s residence, that appellee relied on it and would not have entered into this agreement without this representation, and that the unit would not adequately heat and cool the appellee’s residence. Thus, it appears that appellee is entitled to some relief, monetary or otherwise. But since no evidence exists as to the amount of damages suffered or of his entitlement to other relief so as to enable us or the trial court to render a judgment in his favor, in the interest of justice, we remand so that appellee may plead and prove grounds for appropriate relief. Tex.R.Civ.Proc. Rule 434, Carnes v. Meador, 533 S.W.2d 365, 371 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.).

Reversed and remanded.