author: SPEARS, Justice.

text:
    The CITY OF HOUSTON, Petitioner, v. CLEAR CREEK BASIN AUTHORITY, Respondent.
    No. B-8084.
    Supreme Court of Texas.
    Oct. 3, 1979.

      Robert M. Collie, Jr., City Atty., Fulbright & Jaworski, David J. Beck, Houston, for petitioner.
    Kronzer, Abraham & Watkins, Robert E. Ballard, Houston, for respondent.
   SPEARS, Justice.

Respondent Clear Creek Basin Authority, a statutory governmental entity existing under article 8280-311 (1965), sued the City of Houston for injunctive relief and statutory penalties, alleging the unlawful discharge of waste waters by treatment plants operated by the City in violation of chapter 26 of the Texas Water Code. The trial court granted summary judgment for the City of Houston, but the court of civil appeals reversed and remanded. 573 S.W.2d 839.

Two questions are presented: (1) whether the respondent, Clear Creek Basin Authority, properly presented its objections to the summary judgment under rule 166-A(c) which provides that only “expressly presented” issues may be considered on appeal as grounds for reversal; and (2) whether the respondent Clear Creek, plaintiff below, has standing to sue under the provisions of the Texas Water Code § 26.-001 et seq., which prohibits the unauthorized discharge of polluting waste waters, for discharges occurring upstream and outside its territorial boundaries. Because the answer to both questions is “no,” we reverse the court of civil appeals and affirm the summary judgment entered by the trial court.

Clear Creek’s suit alleges numerous violations of waste control orders of the Texas Water Quality Board and a common law nuisance as a result of the discharge of sewage into waters which ultimately flow into Galveston Bay. The Attorney General of Texas, on behalf of the Texas Water Quality Control Board and the State of Texas, intervened as a necessary party-plaintiff pursuant to the requirement of the Texas Water Code.

Clear Creek alleged in its first amended original petition that the City of Houston had committed numerous violations at 31 different locations. Defendant City admitted that four of these plants discharging effluent are situated within the territorial boundaries of Clear Creek Basin Authority set forth in section 2 of Article 8280-311, supra, and that these four plants exceeded the terms of the City’s permit from the Water Quality Control Board during the periods of 1974 and 1976. The remaining plants were located upstream and outside of Clear Creek’s territorial jurisdiction.

The City of Houston filed a motion for summary judgment, alleging three grounds:

1.The matters upon which Clear Creek bases its claims for relief fall within the primary jurisdiction of the Texas Water Quality Board; Clear Creek has failed to exhaust its administrative remedies; and that neither the Texas Water Quality Board nor the Texas Department of Water Resources has authorized the bringing of this action;
2. As a matter of law, Clear Creek cannot obtain relief for violations of the Texas Water Code which occur outside the territorial jurisdiction of the Authority; and
3. The action represents an attempt by Clear Creek to perform a function or service which the City of Houston is authorized to perform without the written consent of the governing body of the City of Houston, all in violation of Article 8280-311, sec. 5.

Clear Creek filed this response to the motion:

I.
The only issue before this Court is a question of law: can a downstream victim of pollution sue an upstream polluter?
II.
The City has admitted that its sewer plants exceed the parameters of its permits on a regular basis. See Answers to Admissions and Interrogatories.
III.
The City’s effluent is flushed into Clear Lake on a daily basis and causes pollution there. See deposition testimony of Sidney H. Tanner and Affidavits on file.

There is no verbatim record of the hearing on the motion, but the trial court’s judgment recites that at the hearing, Clear Creek withdrew its common law cause of action in open court and announced its desire to proceed only on the basis of its claims under chapter 26 of the Texas Water Code. It further recites that the City of Houston withdrew paragraphs 1 and 3 of its motion for summary judgment and desired to proceed to hearing only on paragraph 2 challenging Clear Creek’s right to sue for violations outside its jurisdictional boundaries. In this context, the trial court granted the City’s motion for summary judgment.

In the meantime, and apart from the summary judgment proceeding, the City of Houston and the state Attorney General worked out a settlement agreement between them to which Clear Creek was not a party. The settlement agreement was incorporated in the trial court’s final judgment but was made expressly contingent upon the judgment that Clear Creek take, nothing being upheld on appeal. The settlement provided for an agreed injunction judgment obligating the City to construct and place into operation some $500,000,000 worth of additional waste water treatment plants, sludge disposal plants, and sewage diversion lines with a reporting schedule to the Texas Department of Water Resources and to the trial court.

The court of civil appeals, in reversing and remanding the cause for trial, held that a fact issue existed as to the alleged violations occurring within Clear Creek’s territorial boundaries. The court reasoned that even if the admitted fact of those violations was not presented to the trial court at the hearing on summary judgment, this part of Clear Creek’s cause of action was not waived because there was no written agreement of waiver filed under rule 11. The court said that the City had not carried its burden and was not entitled to a summary judgment despite Clear Creek’s failure to specify the reasons why the motion should not be granted.

Petitioner City of Houston asserts nine points of error. The first alleged error is that the judgment of the court of civil appeals is erroneous for the reason that it is contrary to the requirement of rule 166-A, that “[ijssues not expressly presented to the trial court by written motion, answer or other response, shall not be considered on appeal as grounds for reversal.” The remaining points claim that Clear Creek waived and abandoned any fact issue and that it is estopped from asserting any complaints of violations occurring within the geographical boundaries of the Clear Creek Basin Authority.

The first question is whether the 1978 amendment to rule 166-A(c), providing that issues not expressly presented to the trial court may not be considered on appeal as grounds for reversal, precludes the court of civil appeals from reversing the summary judgment when the non-movant agreed to the submission to the trial court of a single issue of law. We hold that because the parties agreed on the submission of only one issue to the trial court and its ruling on that issue constituted the basis of the granting of the motion for summary judgment, Clear Creek is precluded from later urging on appeal the issue not presented, i. e., the violations of the four plants located within Clear Creek’s boundaries.

A history of the summary judgment rule, rule 166-A, reflects that the high hopes of increasing judicial efficiency advanced by the proponents of the rule did not materialize. While no summary judgment rule was included in the initial promulgation of the rules of civil procedure in 1940, after considerable urging by legal scholars and commentators and by the Texas Civil Judicial Council, rule 166-A was adopted by this court, effective March 1, 1950. Pittsford and Russell, Summary Judgment in Texas: A Selective Survey, 14 Hous.L.Rev. 854 (1977). Despite predictions of success by its supporters, the rule has been fraught with misunderstanding. One prominent writer observed in 1961 that a poll of district judges throughout the state reflected many were skeptical about the efficacy of the rule because of frequent reversals by appellate courts. McDonald, The Effective Use of Summary Judgment, 15 Sw.L.J. 365, 373-4 (1961). In 1977, a survey concluded that fewer than two percent of the civil cases disposed of in Texas in the six preceding years were decided by summary judgment. See Pittsford and Russell, supra at 854. Another survey of the cases decided by this court between 1968 and 1976 reflected that when a summary judgment was granted in the trial court, seventy percent of those cases were reversed and remanded for trial. Sheehan, Summary Judgment: Let the Movant Beware, 8 St. Mary’s L.J. 253, 254 (1976).

Attempts within the bar to clarify summary judgment practice began to gain momentum in the early 1970’s. After several unsuccessful attempts at revision, the Committee on the Administration of Justice of the State Bar of Texas voted in March of 1976 to recommend changes in rule 166-A that would require the non-movant to provide some assistance to the trial judge in narrowing the issues to be decided. That proposal was then considered by the Supreme Court Advisory Committee in March of 1977, and after several changes, was recommended to this court for adoption. The proposal recommended significant change in section (c), primarily by requiring the non-movant to “define specifically in writing” the controverted issues and defects in the movant’s proof that would defeat the motion. The recorded minutes of the Advisory Committee reflect a prevailing sentiment to change the rule, to make summary judgments a more useful procedure in judicial administration, to require non-movant to specify his opposition to the motion, and to prevent the non-movant from “laying behind the log” within his objections until appeal.

A comparison of section (c) of the rule as it existed before January 1, 1978, and as amended demonstrates the significance of the change in the mechanics of the summary judgment procedure. The new rule adopts the objectives of the Advisory Committee, but goes even further by precluding from consideration on appeal grounds not raked in the trial court in opposition to a summary judgment motion. The pre-1978 summary judgment rule had a chilling effect on the willingness of trial courts to utilize the intended benefits of the procedure. See McDonald, The Effective Use of Summary Judgment, 15 Sw.L.J. 365, 375-382 (1961). The new rule attempts to encourage the trial court to utilize the summary judgment in appropriate cases.

Prior to January 1,1978, section (c) read:

(c) Motion and Proceedings Thereon. The motion for summary judgment shall state the specific grounds therefor. The motion shall be served at least ten days before the time specified for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. No oral testimony shall be received at the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any' material fact and that the moving party is entitled to a judgment as a matter of law.

Section (c) now reads:

(c) Motion and Proceedings Thereon. The motion for summary judgment shall state the specific grounds therefor. Except on leave of court, the motion shall be served at least twenty-one days before the time specified for the hearing. Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may serve opposing affidavits or other written response. No oral testimony shall be received at the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions and affidavits, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues as expressly set out in the motion or in an answer or any other response. Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. A summary judgment may be based on uncontroverted testimonial evidence of an interested witness, or of an expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted, (emphasis added)

A concomitant change to section (e) of the rule added this sentence:

Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.

Responding to the criticism that a non-movant could “lay behind the log” in the trial court and urge deficiencies for the first time on appeal, the new section (c) specifically prohibits this tactic by clearly requiring:

. Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal, (emphasis added)

The word “written” modifies not only the word “motion,” but also the words “answer” and “other response.” The “issues” required by the rule to be “expressly presented” are those pointed out to the trial court in written motions, written answers or written responses to the motion. The term “answer” in the context of the rule refers to an answer to the motion, not an answer generally filed in response to a petition. Feller v. Southwestern Bell Tel. Co., 581 S.W.2d 775 (Tex.Civ.App.—Houston [14th Dist.] 1979, no writ). The movant must also expressly set out his grounds in writing:

. The judgment sought shall be rendered forthwith if . and the moving party is entitled to judgment as a matter of law on the issues as expressly set out in the motion or in an answer or any other response, (emphasis added)

Thus, both the reasons for the summary judgment and the objections to it must be in writing and before the trial judge at the hearing. The appellate court which must later decide whether the issue was actually presented to and considered by the trial judge will then be able to examine the transcript and make its determination. To permit “issues” to be presented orally would encourage parties to request that a court reporter record summary judgment hearings, a practice neither necessary nor appropriate to the purposes of such a hearing. Richards v. Allen, 402 S.W.2d 158, 161 (Tex.1966); rule 166-A(c).

If the issues are to be further restricted or expanded by the parties beyond those “expressly presented” by the written motion, the answer to the motion, or any other written response, the change must meet the requirements of rule 11 which provides:

No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as a part of the record, or unless it be made in open court and entered of record, (emphasis added)

The City of Houston contends that the parties orally agreed in open court at the hearing on the motion to narrow the issue to a single question of law — does Clear Creek have standing under the code to sue for pollution originating outside its territorial boundaries? The City further maintains that if that agreement must comply with rule 11, the recitations in the judgment satisfy the requirements of the rule.

We agree that the parties in open court should be able to narrow the issues presented to the trial court provided the agreement is reduced to writing, signed, and filed with papers or “entered of record.” If a party represents to the court that he waives a ground or objection that he has previously asserted in a written motion or response and agrees that a certain issue is the only issue before the court, rule 11 is satisfied if the oral waiver or agreement made in open court is described in the judgment or an order of the court. Rule 11 expressly approves this procedure.

The trial court’s judgment reflects that the parties by agreement expressly presented only one issue to the court, and the requirements of rule 11 were met when the agreement was reflected in the judgment. Counsel for the City announced in open court that he was withdrawing grounds 1 and 3 of its motion for summary judgment. Clear Creek agreed to withdraw its common law cause of action, and the City of Houston agreed not to object to its revival if the case were remanded for a new trial. The only issue then remaining to be determined at the hearing on the motion for summary judgment, taking into consideration the motion, the written response, and the open-court representations of counsel recited in the judgment, was the second ground asserted by the City’s motion — the standing of Clear Creek to file a suit under the Texas Water Code for violations which occur upstream and outside the jurisdictional boundaries of the Clear Creek Basin Authority. No other issues were presented to the trial court by either party, and he ruled on no others.

Clear Creek next argues that its pleadings on file in the case adequately assert its claim of violations by the four plants located within its territorial boundaries, that its response to the City’s motion for summary judgment does not supercede Clear Creek’s previous pleadings, and that it should not have to replead in its response to the motion what it had already pled.

Pleadings do not constitute summary judgment proof. Hidalgo v. Sur. Sav. & Loan Ass’n, 462 S.W.2d 540 (Tex.1971). The new rule requires that contentions be expressly presented in the written motion or in a written answer or response to the motion, and pleadings are not to be considered in determining whether fact issues are expressly presented in summary judgment motions. The terms “answer” and “response” as used in the context of the rule clearly refer to the motion and not to the pleadings generally. Feller v. Southwestern Bell Tel. Co., supra. To hold otherwise would be to perpetuate the evil the rule change was designed to eliminate. The written answer or response to the motion must fairly apprise the movant and the court of the issues the non-movant contends should defeat the motion.

We are not to be understood, however, as shifting the burden of proof that exists in summary judgment proceedings. The trial court may not grant a summary judgment by default for lack of an answer or response to the motion by the non-mov-ant when the movant’s summary judgment proof is legally insufficient. The movant still must establish his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law. See Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). Summary judgments must stand on their own merits, and the non-movant’s failure to answer or respond cannot supply by default the summary judgment proof necessary to establish the mov-ant’s right.

While it would be prudent and helpful to the trial court for the non-mov-ant always to file an answer or response, the non-movant needs no answer or response to the motion to contend on appeal that the grounds expressly presented to the trial court by the movant’s motion are insufficient as a matter of law to support summary judgment. The non-movant, however, may not raise any other issues as grounds for reversal. Under the new rule, the non-movant may not urge on appeal as reason for reversal of the summary judgment any and every new ground that he can think of, nor can he resurrect grounds that he abandoned at the hearing.

With the exception of an attack on the legal sufficiency of the grounds expressly raised by the movant in his motion for summary judgment, the non-movant must expressly present to the trial court any reasons seeking to avoid movant’s entitlement, such as those set out in rules 93 and 94, and he must present summary judgment proof when necessary to establish a fact issue. No longer must the movant negate all possible issues of law and fact that could be raised by the non-movant in the trial court but were not. See, e. g., “Moore” Burger Inc. v. Phillips Petroleum Co., 492 S.W.2d 934 (Tex.1972); Doyle v. USAA, 482 S.W.2d 849 (Tex.1972); Hidalgo v. Sur. Sav. & Loan Ass’n, 462 S.W.2d 540 (Tex.1971); Womack v. Allstate Ins. Co., 156 Tex. 467, 296 S.W.2d 233 (1957). In cases such as Torres v. Western Cas. & Sur. Co., 457 S.W.2d 50 (Tex.1970) (existence of good cause for late filing of worker’s compensation claim), and Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961) (failure of movant to attach certified copies of prior case to establish res judicata), the non-mov-ant must now, in a written answer or response to the motion, expressly present to the trial court those issues that would defeat the movant’s right to a summary judgment and failing to do so, may not later assign them as error on appeal.

Having held that Clear Creek is not entitled to defeat the summary judgment by raising a fact issue for the first time on appeal which was not expressly presented to the trial court, we now determine if the City of Houston is entitled to its summary judgment as a matter of law for the reason asserted in its motion. Specifically, the question is whether under the Texas Water Code, Clear Creek Basin Authority can sue to enforce the Code provisions prohibiting unauthorized discharges of polluting waste into the waters of the state when those discharges occur upstream and outside the territorial jurisdiction of the Clear Creek Basin Authority. As we have said, this issue was the only question before the trial court.

Clear Creek insists that it is authorized to bring this suit under Tex.Water Code Ann. § 26.124 (Vernon 1972):

§ 26.124. Enforcement by Others
(a)Whenever it appears that a violation or threat of violation of any provision of Section 26.121 of this code or any rule, permit, or order of the department has occurred or is occurring within the jurisdiction of a local government, exclusive of its extraterritorial jurisdiction, the local government, in the same manner as the department, may have a suit instituted in a district court through its own attorney for the injunctive relief or civil penalties or both, as authorized in Subsection (a) of Section 26.123 of this code, against the person who committed or is committing or threatening to commit the violation. This power may not be exercised by a local government unless its governing body adopts a resolution authorizing the exercise of the power. In a suit brought by a local government under this section, the department is a necessary and indispensable party, (emphasis added)

Section 26.121, prohibiting unauthorized discharges of waste, provides:

§ 26.121. Unauthorized Discharges Prohibited
(a) Except as authorized by a rule, permit, or order issued by the department, no person may:
(1) discharge sewage, municipal waste, recreational waste, agricultural waste, or industrial waste into or adjacent to any water in the state;
(2) discharge other waste into or adjacent to any water in the state which in itself or in conjunction with any other discharge or activity causes, continues to cause, or will cause pollution of any of the water in the state; or
(3) commit any other act or engage in any other activity which in itself or in conjunction with any other discharge or activity causes, continues to cause, or will cause pollution of any of the water in the state, unless the activity is under the jurisdiction of the Parks and Wildlife Department, the General Land Office, or the Railroad Commission of Texas, in which case this subdivision does not apply.
(b) In the enforcement of Subdivisions (2) and (3) of Subsection (a) of this section, consideration shall be given to the state of existing technology, economic feasibility, and the water quality needs of the water that might be affected.
(c) No person may cause, suffer, allow, or permit the discharge of any waste or the performance of any activity in violation of this chapter or of any rule, permit, or order of the department.
(d) Except as authorized by a rule, permit, or order issued by the department, no person may discharge any pollutant, sewage, municipal waste, recreational waste, agricultural waste, or industrial waste from any point source into any water in the state.
(e) No person may cause, suffer, allow, or permit the discharge from a point source of any waste or of any pollutant, or the performance or failure of any activity other than a discharge, in violation of this chapter or of any rule, regulation, permit, or other order of the board, (emphasis added)

Clear Creek contends that the plain meaning of the language of subsections (aX2) and (3) of § 26.121, containing the phrase “or will cause pollution,” and of subsection (e), is that a violation takes place where pollution is caused not where waste water or sewage enters the stream. It further argues that under section 1.002 of the Water Code and art. 5429b-2, § 3.03, in construing the Water Code, the object of the code must be considered. Clear Creek says the object indicated in § 26.012 is the development of a general, comprehensive plan for the control of water quality in the state, and that objective can best be implemented by construing the statute to allow all downstream victims of upstream polluters to protect their rights by maintaining suits under chapter 26 of the code. Clear Creek urges that such suits are proper without regard to where the pollutant enters state waters so long as the local government can show that the defendant caused the resulting pollution.

The “discharge” of waste is prohibited in § 26.121, the occurrence of which constitutes a “violation” under § 26.124. The term “discharge” is defined in § 26.-001(20):

“To discharge” includes to deposit, conduct, drain, emit, throw, run, allow to seep or otherwise release or dispose of, or to allow, permit, or suffer any of these acts or omissions, (emphasis added)

Thus, “discharge” is defined as the equivalent of an “act or omission,” which must “occur.” An “act” is not a continuous process existing indefinitely, but an event that can be traced to a particular place and a particular time or time period. “Discharge” is not a process that continues on to the sea but an “act,” and “an act can only occur where it actually takes place.” City of Friendswood v. Clear Creek Basin Auth., 545 S.W.2d 201, 205 (Tex.Civ.App.—Houston [1st Dist.] 1976, writ ref’d n. r. e.). Nor does the language of (a)(3) expand the term “discharge” to acts or activities occurring outside the territorial limits of the occurrence of those acts or activities. The phrase “other act or . other activity” in (aX3), when read together with (a)(1) and (2), constitutes a “Mother Hubbard” or catch-all phrase designed to prohibit those acts or activities that may not literally come within the definition of “discharge” but which cause pollution. The context of the language of (a)(3) demonstrates it was not intended to expand the word “occur” but rather to make sure that no act or activity which causes pollution was excluded by using the term “discharge.” It is abundantly clear from the Code that the violation “occurs” at the time and place where the discharge “occurs.” Accordingly, we hold that a local government may not bring a statutory action for civil penalties and injunctive relief pursuant to § 26.124 of the Texas Water Code for discharges that occur outside its geographical boundaries.

Our reading of legislative intent is reinforced by comparing in pari materia other sections of chapter 26. The general authority for administering and enforcing the act is vested in the Department of Water Resources. Section 26.011 provides “[e]xcept as otherwise specifically provided, the department shall administer the provisions of this chapter [26] and shall establish the level of quality to be maintained in, and shall control the quality of, the water in this state as provided by this chapter. . . ” Sections 26.171 through 26.174, relating to the authority of a local government to inspect public waters, to recommend water quality standards to the Texas Department of Water Resources, to enter property, and to bring an enforcement action, are expressly limited to the territorial jurisdiction of that particular local government. Section 26.175 provides that a local government may execute cooperative agreements with the department or other local governments, and these local governments may be assigned and delegated “the pertinent powers and functions vested in the department under this chapter as in the judgment of the executive director [of the department] may be necessary or helpful to the local government in performing those management, inspection, and enforcement functions.” The general authority for the civil enforcement of the statute is given by § 26.123 to the Department of Water Resources, while § 26.124, granting enforcement power to local governments, limits enforcement to violations occurring “within the jurisdiction of a local government, exclusive of its extraterritorial jurisdiction.” It seems evident that the legislature sought to vest overall statewide authority for the act in the Texas Department of Water Resources with concurrent authority for local governments to act only within their boundaries, thus eliminating duplication, overlapping, and even conflict between local governments in their efforts. The statute attempts to establish an orderly plan of enforcement with the department at its summit.

This legislative scheme is further demonstrated by the history of § 26.124 authorizing local governments to bring enforcement suits. The forerunner of § 26.124 authorized suit “if the violation of such section causes or would cause a condition of pollution in any of the waters in its boundaries.” 1967 Tex.Gen.Laws, ch. 313, § 16(c), at 756. Two years later in 1969, however, the legislature amended that section to its present form, limiting suits by local governments to a violation that “has occurred or is occurring within the jurisdiction of a local government, exclusive of its extraterritorial jurisdiction . . . .” 1969 Tex.Gen. Laws, ch. 760, § 4.03(a), at 2247. The use of the last phrase, “exclusive of its extraterritorial jurisdiction, is but a further indication that specific geographical limitations were intended. Similarly, the 1967 act had no specific territorial restrictions on the right of a local government to enter public and private property to make inspections and investigations of conditions relating to water quality. 1967 Laws, supra § 16(b), at 756. The 1969 legislature by amendment limited this right to “property within its territorial jurisdiction.” 1969 Laws, supra § 5.03, at 2249. It is apparent that in amending the statute, the legislature intended some change in the existing law, and this court will endeavor to effect the change. See American Surety Co. v. Axtell Co., 120 Tex. 166, 36 S.W.2d 715, 719 (1931).

The judgment of the court of civil appeals is reversed, and the judgment of the trial court is affirmed.

      . All references to statutes are to Texas Revised Civil Statutes Annotated; all references to rules are to the Texas Rules of Civil Procedure.

      . The pertinent part of the trial court’s judgment reads:
      BE IT REMEMBERED that on the 3rd day of April, 1978, came on to be heard the motion for summary judgment of defendant, The City of Houston, with respect to all claims and causes of action asserted in this suit by the plaintiff, Clear Creek Basin Authority, and came on to be heard the joint motion of plaintiff-intervenor, the Attorney General of Texas acting for and on behalf of the State of Texas and the Texas Water Quality Board, now the Texas Department of Water Resources, and defendant, The City of Houston, to enter judgment resolving all claims and causes of action asserted by the Attorney General of Texas acting for and on behalf of the State of Texas, against The City of Houston, whereupon the Court proceeded to hear the motion for summary judgment of The City of Houston with respect to all claims and causes of action asserted by the Clear Creek Basin Authority; and counsel for Clear Creek Basin Authority having represented in open court to the Court that the Clear Creek Basin Authority desired to withdraw from its First Amended Original Petition all claims and causes of action asserted against The City of Houston predicated on the theory of common law nuisance and desired to proceed only against The City of Houston on the basis of its claims and causes of action asserted against The City of Houston under Chapter 26 of the Texas Water Code, and defendant, The City of Houston, having represented to the Court that should this matter be reversed and remanded for a new trial, it would have no objection to the Clear Creek Basin Authority amending its pleadings to reassert the claims and causes of action asserted against The City of Houston based on the common law nuisance theory, and The City of Houston having further represented to the Court that it desired to withdraw from consideration by the Court paragraphs I and III of its motion for summary judgment and to proceed to hearing only on paragraph II of its motion for summary judgment, which complains that the Clear Creek Basin Authority is not entitled to sue for or obtain injunctive relief or penalties against The City of Houston under Chapter 26 of the Texas Water Code for violations which occur outside of the jurisdictional or geographical boundaries of the Clear Creek Basin Authority, and the Clear Creek Basin Authority having proceeded to file its response and affidavits in opposition to the motion for summary judgment of The City of Houston, and the City having agreed to waive any objections to the late filing of said response and affidavits, and the Court, after considering the motion for summary judgment, the summary judgment evidence, the pleadings on file herein, and the representations, stipulations, and arguments of counsel, and it being the opinion of the Court that the motion for summary judgment of The City of Houston should be in all things granted, it is, therefore;
      ORDERED, ADJUDGED and DECREED that the motion for summary judgment of defendant, The City of Houston, be, and the same is hereby in all things GRANTED, and it is further ORDERED, ADJUDGED and DECREED that plaintiff, Clear Creek Basin Authority, do have and recover nothing of or from defendant, The City of Houston. (Emphasis added.)

      . .The full text of section (c) as recommended by the 1976 Committee on the Administration of Justice of the State Bar of Texas is set forth, showing the proposed additions and deletions. Its suggested deletions in the rule are lined through; the suggested additions are underlined.
      In the Advisory Committee’s deliberations in 1977, amendments were offered and voted upon by the members. Words that were added in the Committee’s meeting by vote are double underlined, and words deleted by Committee vote are double lined-through.
      “(c) Motion and Proceedings Thereon. The motion for summary judgment shall state the specific grounds therefor. Except on leave of court, the motion shall be served at least [tea] twentv-one days before the time specified for the hearing. Except on leave of court, the adverse party, not later than seven days prior to the day of hearing^ may serve opposing affidavits or other written response. No oral testimony shall be received at the hearing. [The judgment sought shall be rendered-forthwith -if-the pleadings, depositions, answers-to interrogatories, and admissions on file, together with the affidavits, if any, show that, except as to the amount of-damages,-there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.] “If the moving party has bv motion, pleadings. depositions, answers to interrogatories. admissions on file, or affidavits relied upon by the moving party, if any, shown that there is no genuine issue for trial, and that the moving party is entitled to judgment as a matter of law, the adverse party may not rest upon the mere allegations or denials of his pleadings, but must define specifically in writing the issue or issues he contends are controverted or point out the defects in the movant’s proof, and, if necessary to demonstrate a factual dispute, respond with facts from depositions, answers to interrogatories. admissions on file, affidavits, if any, or written response showing that there is a genuine issue for trial. If he does not so respond. summary judgment, if appropriate, shall be entered against him.”

      . See note 2, supra.

      . The function of the summary judgment is not to deprive a litigant of his right to trial by jury, but to eliminate patently unmeritorious claims and untenable defenses. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952).


source: Caselaw Access Project

author: CLINTON, Judge.

license: Public Domain

text:
    Miles Jackson JERNIGAN, Appellant, v. The STATE of Texas, Appellee.
    No. 57277.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 20, 1979.
    Rehearing En Banc Denied Nov. 28, 1979.

      Jack R. Bailey, Marvin 0. Teague, Houston, for appellant.
    Tom Hanna, Dist. Atty. and John R. DeWitt, Asst. Dist. Atty., Beaumont, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

The offense is arson as proscribed by Article 1304 and related provisions of Title 17 in the 1925 Penal Code. Upon a jury verdict of guilty, the trial court assessed punishment at 10 years confinement in the Texas Department of Corrections.

The judgment of conviction is assailed by twenty-one grounds of error, the first three raising sufficiency of the evidence to support the verdict in this circumstantial evidence case. To provide a setting for consideration of certain grounds of error other than those contesting sufficiency of the evidence, we first sketch profiles of the drama-tis personae, review and critique the plot outlined by the State and then decide particular grounds of error that are raised.

The appellant is Miles Jackson Jernigan. At all material times he was 57 years of age; at first single but then married. He came to Port Arthur from Pensacola, Florida where he and other members of his maternal family permanently resided. His brother is Frank Jernigan at whose instance, appellant testified, he first helped remodel and then worked as a commission salesman in the furniture store in Port Arthur that became the victim of the alleged willful burning. Appellant, with others, began the remodeling work around January 1, 1971 and, for a while, resided with Ray Underwood across the street from the furniture store.

Ray Underwood, who did not testify and whose background is not revealed, was a commission salesman at the furniture store for a short period of time in the spring of 1971. He lived with his family in the house across the street, shown to have been owned by Frank Jernigan.

Calvin W. Wilson is an attorney who practiced law in Pensacola, Florida and from time to time before 1971 represented appellant in collecting payments for services rendered by appellant in his small appliance repair business in Pensacola. Wilson also, as the State puts it, “figures prominently and recurrently” in the evidence, albeit in absentia.

LeRoy Morris also found his way from Pensacola, Florida to Port Arthur in 1971 where he was employed as assistant to the manager of the furniture store — that being, according to Morris, Frank Jernigan. Coming to Port Arthur in May to go to work for Frank Jernigan, Morris was soon coordinating all advertising of the furniture business for the Port Arthur store and another business in Lake Charles, Louisiana that was opened in June 1971. The Lake Charles operation was under the supervision of Frank Jernigan and when that business was incorporated Morris became an officer of the corporation along with Calvin Wilson as president and Dewey Godwin as vice-president.

Dewey Godwin is a son-in-law of Frank Jernigan. Like several others he came to Port Arthur from Pensacola and worked as a salesman in the furniture store. He was, at pertinent times, twenty-five or twenty-six years old.

Arthur “Slim” Stewart was apparently a resident of Port Arthur who went to work in the furniture store under the supervision of Frank Jernigan when the store was opened; he was in charge of shipping and receiving and also worked as a salesman. After Ray Underwood moved out, Stewart resided in the Frank Jernigan house across the street from the furniture store. He was an employee when the store and its contents burned on the evening of Sunday, November 7, 1971.

J. Lowery, apparently the same person as Shelby Lowery, resided in Groves, near Port Arthur, but worked in the furniture business in Lake Charles as a salesman until Morris left there as manager to return and work full time in Port Arthur. Lowery then opened and operated still another furniture business in Port Arthur. When the Lake Charles operation closed down, much of the furniture stock in that store was moved to the Lowery business. Lowery did not testify and at the time of trial was believed to be somewhere in Florida.

Carl Parker, a State Senator, is an attorney who practices law in Port Arthur. He drew several of the papers and instruments admitted in evidence, over objection of appellant, representing, according to his testimony, Frank Jernigan. On occasions he had conversations with the Pensacola lawyer, Calvin Wilson.

Inter alia, the indictment alleged that appellant “was the owner” of the willfully burned building. See Barnes v. State, 135 Tex.Cr.R. 111, 117 S.W.2d 441 (Tex.Cr.App.1938).

Among other exhibits offered by the State to show ownership in appellant, there was admitted over objection State’s Exhibit 3, purporting to be a deed by which Sabine Realty Company conveyed to Miles J. Jerni-gan real property in Port Arthur described by lots and block numbers. Further, over objections that it was hearsay and constituted a conclusion and speculation, an investigator for the district attorney was permitted to testify that the property described in the deed was commonly known as 1401 Gulfway Drive in Port Arthur — that, of course, being the address of the burned building and its contents at issue.

In addition to whatever other undisclosed consideration was involved, the deed from Sabine Realty to appellant recited the sum of $8,000.00 evidenced by one certain promissory note payable in monthly installments of $250.00 each, the first one of said installments being due and payable on or before the 18th day of December, 1970 and one of said installments being due and payable on or before the 18th day of each succeeding month thereafter until fully paid, payment of which was secured not only by a vendor’s lien retained against the described property but also a deed of trust described in the deed. In this instrument appellant was expressly described as “a single man.”

Further, the State introduced through an insurance broker an insurance policy issued to Miles J. Jernigan, as insured, in the amount of $8,000.00 coverage against perils of fire and extended coverage on the building at 1401 Gulfway Drive in Port Arthur. The policy is dated February 20, 1971 and was for a period of one year. The broker testified that both appellant and his brother, Frank, were present when he caused the policy to be issued but he did not say for sure which one asked him to issue it. The broker, in his capacity as a realtor, had earlier sold the furniture store property for Sabine Realty Company; he definitely recalled talking with Frank Jernigan about it and only “believed” that appellant was with him; although he could not remember the exact amount of the earnest money deposited, he thought it was from $1,300.00 to $1,500.00 and “believed” that Frank Jerni-gan had put up the money.

March 15, 1971 Articles of Incorporation were executed by Calvin W. Wilson, Ray Underwood and Miles J. Jernigan, as incorporators. The articles had been prepared by Carl Parker and the affidavits of the incorporators were taken by a secretary in his office; one affidavit was for Calvin W. Wilson alone, whereas the other was for Ray Underwood and Miles J. Jernigan together. As well as incorporators, the same three were constituted the initial board of directors to serve until the first annual meeting of shareholders or until successors were elected and qualified. Carl A. Parker was designated registered agent. The Articles of Incorporation were filed with the Secretary of State of Texas March 17, 1971. The legal name of the corporation was Treasurehouse Furniture, Inc., but was commonly called Treasure House.

Another Port Arthur insurance and real estate agent testified for the State that some time in February 1971 he sold to Frank Jernigan the house on Gulfway Drive across the street from Treasure House and later on he covered Frank’s automobiles and fleet of trucks with insurance as well as talking with him about fire insurance, workers’ compensation and liability. With respect to Treasure House, the insurance broker wrote or caused to be written four separate insurance policies, each dated September 16, 1971. One policy provided $5,000.00 coverage against perils of fire and lightning and extended coverage on the building and $10,000.00 coverage on contents of the building; the additional three policies each provided $5,000.00 coverage on the building and $20,000.00 coverage on its contents. Coupled with the $8,000.00 policy issued February 20, 1971, in the name of Miles J. Jemigan, the existence of which Frank Jernigan informed the insurance broker, then, the total building coverage was $28,000.00 and contents was $70,000.00. The four policies named the insured as “CALVIN W. WILSON DBA TREASURE HOUSE FURNITURE COMPANY” at the instance of Frank Jernigan who insisted that policies initially issued in his name be reissued in Wilson’s name as well as the premium note for payment of the balance due. The first payment of premiums was by check drawn on a Treasure House account that the broker himself picked up and “believed” was signed by Mrs. Frank Jemigan. The broker was clear, however, that appellant never gave him any instructions concerning the policies or had anything to do with them or paying any money toward premiums due.

Appellant married Mary Avery September 4, 1971.

The fire occurred Sunday, November 7, 1971 at about 6:00 p. m.

The State further proved that on or about March 9, 1972 the claim under the $8,000.00 building policy was paid in full by a check in that amount as well as another in the amount of $573.40 as unearned premium. The insurance broker recalled and interpreted notations on the papers to mean that the payoff checks were picked up by Attorney Parker, although the payee was Miles J. Jernigan. The State then had admitted a certified release of vendor’s lien executed March 21, 1972 by Sabine Realty Company and a March 23, 1972 warranty deed by which Miles J. Jernigan conveyed the furniture store real property to Attorney Parker.

When the State rested its case in chief, then, from the proof it adduced on the matter the State’s theory of the essential element of ownership of the furniture store was that record title was in the name of appellant and, concomitantly, the $8,000.00 insurance policy and check in that amount for the loss were issued in his name. With respect to the furniture business — as distinguished from the bare building that housed it — the State introduced the Articles of Incorporation of Treasurehouse Furniture Inc. on the theory that it showed appellant possessed an interest in the business —indeed, the State argued to the jury, quite erroneously, from the fact that persons, including appellant, were named as incorporators and initial directors, that they were the three “stockholders” in the corporation.

Appellant’s first witness in defense was an attorney who also owned Port Arthur Abstract Company. From business records he testified that on December 28, 1970 his office prepared an assumption deed from appellant to Frank W. Jernigan, et ux, conveying the furniture store property at 1401 Gulfway Drive. He identified Nina Heth-erwick as his secretary; her name appears as the notary public who took the acknowl-edgement of the officer of Sabine Realty Company on the deed conveying the property to appellant. Apparently willing to accept the witness as an expert in real estate law, on cross-examination the State obtained his legal opinion that an assumption deed conveys title to the property to its grantees. His conclusion was further explicated on re-direct examination:

“Q: Now, as to between this assumption deed that you drew, if it had been executed, it would have conveyed title from Miles Jemigan to Frank Jernigan and his wife, is that correct?
A: Yes, sir.
Q: Now, when you are referring to the fact that later on, from what you determined from the records, that deed didn’t appear of record that would mean that as far as the record is concerned Miles Jernigan— that would leave Miles Jernigan free to convey that property to a third party?
A: Yes, sir.
Q: As between Frank Jernigan and Miles Jemigan, though, it conveyed title and it remained conveyed between those two parties, is that correct?
A: If it was executed and delivered, it did.
* * * * * *
Q: . . .on November the seventh, nineteen seventy-one, if the deed, the assumption deed, which you drew had been signed and delivered — signed by Miles Jernigan and delivered to Frank Jernigan, as far as the true title to that property on November the seventh, nineteen hundred and seventy-one, who would have owned the property? # * * * ⅜ *
A: * * * Based on the facts of your question, I would say that Frank Jemigan, et ux, his wife, owned the property.”

Having presented evidence of the assumption deed and with the expert testimony as to title in the record, appellant immediately moved for an instructed verdict, in part contending that requisite ownership was not shown. The motion was overruled.

The next witness presented by appellant was Attorney Carl Parker. While he was testifying, Carl Parker produced and the trial court admitted without objection an instrument denominated by the parties as an assumption deed by which Miles J. Jerni-gan conveyed to Frank K. Jernigan and wife, Kathryn Jernigan, real property in Port Arthur described exactly as in the deed from Sabine Realty to Miles J. Jerni-gan. The acknowledgement on the deed was taken by Nina Hetherwick. This deed also describes appellant as “a single man.”

On a date not clearly revealed in the record but believed by him to have been soon after the start of the furniture business in Port Arthur, Attorney Parker drew a lease of the building from appellant to either Calvin W. Wilson, individually, or to Treasure House Furniture, Inc. A copy of the lease could not be produced by Parker since he had turned over his Treasure House file to Frank Jernigan. Although unable to recall whether the lease of the building was to Calvin Wilson, individually, or to Treasure House Furniture, Inc., Parker did identify Wilson as the president of the corporation.

In further cross-examination of Parker the State inquired whether he was “aware of the financial condition of the business, of the Treasure House Furniture Company.” When Parker responded that his awareness was only “in a limited sense,” he was asked to “elucidate on that just a little bit,” and he answered by referring to “a civil suit for them.” Under questioning he went on to explain that he thought the suit was by a local utility company against Frank Jerni-gan, dba Treasure House and concerned a “disagreement” over the light bill. The court sustained an objection to a question as to whether the light bill had gone unpaid for a period of time and the State then moved into another area, but later returned to the matter of Parker’s “knowledge” that the instances alluded to were the only complaints and only financial difficulty that Treasure House had at the time. The State then revisited the law suit brought by the utility company for an amount, Parker believed, of about $800.00. Without further predicate the State had marked for identification four exhibits, numbers 36, 37, 38 and 39, and Parker was asked to examine them and state whether he recognized them. Upon his answer, “I recognize them,” the State tendered the exhibits into evidence. The statement of objections by appellant, of justification by the State and the colloquy with the court — all outside the presence of the jury — consume almost twenty pages of the record; accordingly we summarize the matter.

Appellant objected on the following grounds:

1. Not in compliance with Art. 3731a, V.A.T.C.S., Official Records Act;
2. No notice;
3. No proper predicate;
4. No connection with this Defendant;
5. Lawsuit was filed subsequent to fire;
6. Irrelevant to this lawsuit;
7. “And all of this is outside the hearing and the knowledge of the Defendant, Miles Jernigan;”
8. Surprise;
9. Prejudice;
(Though expressly requested, the trial court denied appellant the opportunity to adduce testimony on surprise and prejudice.)
10. Lack of connection between corporation in Louisiana and Texas corporation.
11. Hearsay.

The justification submitted by the State for all exhibits was threefold:

1. The Official Records Act, Art. 3731a, V.A.T.C.S., anticipates “some type of detrimental aspect” and “there has been no showing of that here;”
2. Given the existence of the statute, it could have based a motion for discovery and appellant did file other discovery motions but made no attempt to learn of the petitions;
3. That the court was well aware of what the circumstances are in this case: “(I)t was set out as a scheme and plan of Frank Jernigan, Miles Jernigan, and Calvin Wilson — on the part of Frank Jernigan, Miles Jerni-gan, and Calvin Wilson and others to mislead the public as to what-who the owner of the building was, who the owner of the business was, their attempts and schemes to hide it and for that reason I would suggest that any lawsuit against anyone who was in that particular business, Treasure House, should sufficiently put all members of that corporation on notice of that lawsuit . . . ”

Appellant rejoined, as to the possibility of discovery, “The purpose of this very article is that you give notice to the adverse party that you intend to use this so there would not be any surprise and I am completely surprised and that we are prejudiced thereby.” As to Exhibit No. 38, specifically, the State then argued that the point in question is “the financial status, not the fact that the lawsuit had actually physically been filed” at the time it was. When the trial court hesitated because some of the attached bills and invoices named the business in Lake Charles, the State argued that “this group is actually the same group who had prior to that time been doing business under this same name in Lake Charles . and as a practical matter the bills of laden (sic) attached thereto relate both to the Lake Charles store which was still going on during the period of time the store in Port Arthur was being operated and to the Port Arthur store . . .” When appellant challenged statements as to the sameness of the corporate entity and pointed out there was no proof in support of the theory advanced by the State, the court remarked that “just to be on the absolute safe side I will hold up on thirty-eight until more has been shown.” The State then disclaimed any intention to prove that the same corporation was doing business in Louisiana or that the incorporators, directors and officers of the Louisiana corporation were the same people named in the Articles of Incorporation in Texas, but insisted that the whole point of these exhibits was:

“We’ve got a group of people who moved in this community for one purpose and that one purpose was to set up a business to get the people and to get out as quickly as they could and if the State is denied the right to show this to the jury we are going to go in with the jury completely blindfolded as to what the true state of affairs was.”

Subsequently, in further cross-examination of Attorney Parker, the State drew testimony of his representation of Frank Jemigan personally in some litigation filed against him and against Treasure House Furniture Company in Port Arthur for some kind of debt in Louisiana and that he filed an answer to the effect that they were separate entities and Frank Jernigan was not an owner and “that was the end of it.” Shown State’s Exhibit 38, Parker recognized it as a petition but not the one that instigated the suit he had just testified about; further he did not recall representing Treasure House Furniture Company in the particular lawsuit reflected by Exhibit 38. Whereupon the State then tendered Exhibit 38 “as being sufficient on itself, a certified copy of a lawsuit . . .” Appellant renewed his objections, particularly because it had just been shown that he had no interest in the business; the State, however, contended that because he was shown to have been an incorporator and a member of the board of directors, “I think he has notice of it.” Finally, without further ado, Exhibit No. 38 was admitted.

Thereafter, while Attorney Parker was still testifying, he was shown Exhibits 40A and 40B and examined them. When he stated he recognized them, the State then completely withdrew its tender of Exhibit No. 38 and tendered State’s Exhibit 40A and 40B. To admitting the exhibits, appellant objected on grounds that because they named only Frank Jemigan, individually, they were irrelevant and immaterial to any issue involving appellant and were all matters outside the hearing and knowledge of appellant, not material under the allegations of the indictment and are “pure hearsay” as to appellant. The exhibits were admitted.

During the cross-examination of Leroy Morris, the State produced and had marked for identification Exhibits 41 and 41A. Morris denied having ever seen the exhibits before. The State then produced and had marked for identification Exhibits 42 and 42A. The witness answered affirmatively, that he was familiar “at least with the subject matter” of the lawsuit initiated by Exhibit No. 42. On voir dire examination the witness said he had heard that the suit had been filed but he was never served with citation nor had he seen either one of the exhibits. Whereupon during the course of another lengthy colloquy, appellant objected to all four exhibits, 41, 41A, 42 and 42A, on essentially the same grounds heretofore outlined in connection with the earlier similar exhibits offered and admitted, including lack of notice, surprise and prejudice. To that, the State submitted the exhibits were admissible on their face without any type of identification, being certified records; since the appellant is listed as one of the defendants in the petitions, he cannot claim surprise; and, finally, that the State had established by the witness that “this was all just one continuing operation, even though there may have been different corporate shelters.” Settling an argument as to whether the testimony of the witness showed knowledge of the subject matter of the lawsuits, the court admitted the exhibits after making the following observations:

“I am not talking about what he may know about it, but — they may ask him about it and if he knows nothing about it, that’s the end of it, but if he does then he can ask him about it. But the answer in either event is the sole criteria as to whether the items are admissible, or not.”

From what we have gleaned from the record of the testimony from defensive witnesses Bass, Parker and Hetherwick and the revelations of stated purposes for admitting Exhibits 37 through 42A, it is at once apparent that the State shifted dramatically the emphasis of its theories of culpability. Its case in chief was designed to prove that appellant’s culpability arose out of his ownership of the building and his “interests” in the Texas corporation that conducted the furniture business in Port Arthur. With its proof of that theory substantially weakened by the defensive testimony outlined, however, the State then turned to the notion that appellant was guilty by his association with a designing group of people determined to fleece its suppliers and the consuming public. We note the jury was not charged on the law of principals.

By his grounds of error 10 through 19 appellant contends that admitting the exhibits over the specific objections shown to have been made, the trial court committed reversible and prejudicial error. As to this, the State asserts in its brief that the suits were for “debts incurred” and even as to those exhibits in which only Frank Jerni-gan was the named defendant “debts of the business” would be of concern to all parties having an interest. With respect to lawsuits for “debts incurred” by the business in Lake Charles the State deems it significant that there were allegations that the Lake Charles operation had its principal office at 1401 Gulfway in Port Arthur and that in both suits answers were filed by Attorney Parker. Later the State points out that the suits were “for unpaid debts” and were “all for debts existing” at the time of the fire and tend to show that the businesses “were in bad financial straits at such time.” Having just done so, in our view, the State disclaims that the exhibits were introduced to show the truth of the various averments therein, but yet thereafter argues that the agreed judgment was but "part of the evidence tending to show the very real financial woes of the business with which appellant and his cohorts were connected.” Suffice it to say that the exhibits were treated as showing some modicum of truth during the trial of the case, and the difficulty exhibited by the State in its brief in attempting to disassociate itself now from that treatment, satisfies us that the exhibits were improperly admitted and utilized.

We believe and find that the holdings of Oliver v. State, 551 S.W.2d 346, 348-349 (Tex.Cr.App.1977) and cases cited therein, control disposition of the grounds of error under consideration, and require that they be sustained. As demonstrated, supra, one of the reasons expressed for admitting them and the very manner by which they were utilized in argument by the State belies any later claim that the exhibits were not admitted to show the truth of the statements contained therein. This being their purpose and function, the exhibits were “inadmissible as hearsay” here, just as similar pleadings and papers were in Oliver, supra.

In Oliver the State argued that Article 3731a, V.A.C.S., authorized admitting the exhibits. Here, while seeking to excuse its failure to comply with the notice requirements of the statute, the State apparently also relies on the Article, pointing out that each exhibit was properly certified. Their relevance aside, the State did not deliver a copy of any exhibit to appellant “a reasonable time before trial,” as required by Section 3, unless the trial court opines that appellant “has not been unfairly surprised” by that failure.

Here, unlike Chatman v. State, 513 S.W.2d 854 (Tex.Cr.App.1974), appellant objected on the very grounds that were omitted there. That the State did not give notice is uncontroverted. It must be remembered that the pre-trial process contemplated by the notice requirements is to put the accused on notice that an official writing will be introduced by the State during the course of the trial. The purpose of that notice is to enable the accused to prepare his defense by way of objections to admissibility of the writing, garnering evidence to refute or explain their intend-ments or whatever other defensive posture the circumstances may suggest. See, e. g., Denham v. State, 428 S.W.2d 814, 817 (Tex.Cr.App.1968). There, writing for the Court, Presiding Judge Onion reasoned that, as to record of a prior felony conviction, by its provisions Article 37.07, V.A.C.C.P., “puts every accused on notice that the State is entitled to show his prior criminal record” so that, in effect, the accused could not complain that the specific notice requirements of Section 3 had not been followed. Actual knowledge of the writing may be relevant on the question of unfair surprise, but it is not a substitute for advanced reasonable notice that the writing will be offered as evidentiary matter at trial. The obvious legislative objective was to encourage pre-trial disclosure in order to eliminate surprise to the adverse party and thereby avoid arguments and possible delay of proceedings during the course of the trial — an objective, we are constrained to remark, that was not achieved here.

To his claim of surprise and prejudice, without explicating the basis for doing so, the trial court not only summarily stated a finding of no surprise or prejudice but also just as sharply rejected the precise request of appellant to adduce testimony on the matters. In doing so, the court expressed the view, “We are not supposed to have a hearing on that . . . ” and reiterated its denial of an opportunity for appellant to do so.

Denham v. State, supra, is regarded as the genesis of the proposition that a violation of Section 3 is not perceived “when the trial judge . . . finds after an inquiry into the matter that the appellant was not unfairly surprised,” 428 S.W.2d at 817. Here, however, while the trial court heard objections to and justifications for admitting the exhibits and discussed them outside the presence of the jury, the court did not conduct an inquiry on the claim of surprise outside the presence of the jury, though twice requested to hear testimony on the issue. In the circumstances of this case, as we have set them out at some length, we find that the trial court erred in denying appellant the opportunity he sought to show surprise and, further, hold that the finding of no surprise by the trial court, without inquiry or hearing, does not permit this Court to conclude that the exhibits were properly admitted in evidence for consideration by the jury.

We believe that the exhibits were harmful and prejudicial, Yates v. State, 489 S.W.2d 620 (Tex.Cr.App.1973) and cases cited therein, Busby v. State, 51 Tex.Cr.R. 289, 103 S.W. 638, 650 (Tex.Cr.App.1907). Further, because from the record before us there is ample evidence of facts and circumstances to suggest that appellant was, indeed, unduly surprised by the State’s proffering the exhibits, we conclude that the refusal of the trial court to receive testimony on the issue and then make a finding thereon was likewise reversible error. Grounds of error 10 through 19 are, therefore, sustained.

By his grounds of error 20 and 21, appellant asserts reversible error in admitting into evidence the deposition of Mrs. Nola Stutes and her husband, Arise Stutes, respectively, over objections. The Stutes resided near the furniture store and on the evening of the fire drove by it as they were returning home. Mrs. Stutes testified that near the store she saw a small green car that had to stop at an intersection for her to pass by and then pulled out in a hurry and “took off” in the direction she described. She further testified on direct-examination that she thought she could identify the driver of the green car and then proceeded to point out appellant as being the driver. Proceeding on to their home and pulling into the driveway she then observed smoke coming from a back window of the furniture store building, went immediately into her house and telephoned to report the fire. Mr. Stutes stayed by the car, saw the smoke and fire, moved his car to another location and then returned to water their garage with the garden hose to prevent it from burning. Both then observed the fire in progress and described their observations. Before trial, by agreement, appellant took the depositions of the Stutes, drawing from each their observations of the green car, their movements and activities and descriptions of what they observed. After Mrs. Stutes testified on direct-examination appellant used portions of the deposition in an effort to impeach her, primarily as to her identification of appellant, prior purchases at the store and the extent of its business as it appeared to her. On re-direct the State referred to the same page 4 that appellant had utilized, directed her attention to a question and answer immediately preceding the one appellant had asked concerning the amount of business of the furniture store, got an affirmative answer to whether she remembered that line of questions and then the following occurred:

“MR. HANNA: Your Honor, I offer this deposition. It is some twenty-odd pages.
Mr. McGrath has quoted portions of it and the State tenders the deposition as a whole. We think the deposition on the whole is admissible at this time.
Mr. McGRATH: Your Honor, the witness is here to question. I submit there, is no predicate set for the whole deposition, for the introduction of the whole deposition.
* * * * * *
THE COURT: Admitted.”

Thereafter, the entire deposition was read to the jury by one prosecuting attorney asking the questions and the other reading the answers.

Plainly, under the circumstances, the entire deposition was not admissible at the instance of the State since much of it was in no way related to the limited portions presented by appellant in attempting to impeach the witness. Earnest v. State, 83 Tex.Cr.R. 257, 202 S.W. 739, 740 (Tex.Cr.App.1918). Contrary to the assertion by the State that Article 38.24 authorizes admission of the entire deposition, the rule is not that broad, as explained in Roman v. State, 503 S.W.2d 252 (Tex.Cr.App.1974). We need not here undertake to reconcile Roman with Cerda v. State, 557 S.W.2d 954 (Tex.Cr.App.1977) upon which the State relies, for we are satisfied that the States’ deposition deals with many subjects, to some of which we have already alluded, and introduction of the entire deposition, therefore, is not limited to “the same subject” inquired about on cross-examination.

Ground of error 19 is sustained and; as in Roman, held to be reversible error.

As to the deposition of Mr. States, however, a different issue is raised. He did not testify. Representing he was unable to be present and testify, the State presented evidence through Mrs. States as to his physical and mental condition as a result of a “stroke” suffered by him after giving his deposition. Hearing the matter outside the presence of the jury, the trial court explicitly found that Mr. States had such bodily and emotional infirmity that he could not testify with sound memory and intelligence, and admitted his deposition. The finding of the trial court is amply supported by the testimony of Mrs. States so we can confidently say that the court did not abuse its discretion in admitting the deposition and permitting it to be read to the jury. Ground of error 20 is overruled.

The remaining grounds of error, other than the first three, complain of testimony of Russell Landry, an investigator for the district attorney, concerning consumer initiated complaints about transactions with the furniture business, his contacts with some of its employees and Attorney Parker during the week before the fire and his inability to gain access to its books and records; in addition, error is claimed in admitting as an exhibit Articles of Incorporation of a Louisiana corporation named Treasure House Furniture Company of Lake Charles, Inc. and Articles of Incorporation of a Texas corporation named Furniture Liquidators, Inc., filed October 13, 1971. Without ruling directly on these grounds of error, we believe it sufficient to observe that the State offered the testimony and the exhibits on the notion that because appellant was the record owner of the building, was named as an incorporator and initial director of Treasure House and was associated in his employment at one time or another with many of the actors working there or named in the other corporate papers he had such an interest that, as the State puts it in its brief, would indicate “that its troubles would be his troubles,” yet not showing any direct connection between him and them. Thus, notwithstanding his several conversations with employees and Parker, Landry conceded that he never saw or talked with appellant concerning the complaints he was investigating. Also, appellant was not shown to have any relationship whatsoever with the two corporations and, perforce, with their operations. Without evidence tending to show that appellant was aware of Landry’s investigation and had some connection with the other corporations, the probative value of the testimony and two exhibits, if any, appears practically worthless. In any event, because the case must be reversed on other grounds, we do not analyze and evaluate these grounds of error to the extent of ruling on them.

Having sustained grounds of error requiring that we do so, the judgment of conviction is reversed and the cause remanded.

      . The cause was submitted on briefs of the parties without oral argument. The brief of each party was prepared by counsel who did not participate in the three week trial that produced nine volumes covering more than 2,100 pages of transcription of notes of the court reporter, an additional volume of the transcript prepared by the clerk that contains some 165 pages. For his part appellant, after quoting from and citing many legal authorities concerning appellate review of evidence in arson cases, submits that one who reads all the testimony can and will conclude that the evidence is simply insufficient to sustain the verdict and, without at all analyzing the evidence, urges that a new trial be granted. The State presents a summary of the testimony adduced from each witness it presented, lists the defense witnesses and identifies inclusive pages in the record where their testimony may be found, refers us to and urges that we read a portion of the argument of a prosecuting attorney that is said to summarize all of the testimony, to discuss and analyze defensive testimony and to explain sufficiency of evidence and make observations concerning other grounds of error relating to “corporate charters and various lawsuits;” with this, the State submits that the verdict was amply supported. Barely aided by such limited assistance from briefs of the parties, we have reviewed the record in its entirety with an eye more to issues raised by other grounds of error and, having determined, for reasons about to be stated, that some of them must be sustained and the case reversed, we do not decide sufficiency of the evidence to convict. (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

      . Certified by the Jefferson County clerk to be a true and correct copy of the instrument that appears a record in the deed records, admission of the deed was objected to because, inter alia, the notice requirements of Article 3726, V.A. C.S., had not been complied with by the State. The objection was overruled and the instru-inent admitted. Appellant makes no complaint here concerning that ruling and it is readily apparent from the record that thereafter all parties treated the instrument as being precisely what it purported to be. Accordingly, we accept it as a conveying instrument.

      . According to Article 3.01, of the Texas Business Corporation Act in effect at the time, the only eligibility requirements for incorporators of a Texas corporation was that they be twenty-one years of age and two of the three be citizens of the State of Texas. It is axiomatic that an incorporator need not own any portion of the capital stock of a corporation. Appellant testified that he was never a shareholder in the corporation and, while his testimony may have been rejected by the jury, there is no other evidence in the record that shares were ever issued to him. Moreover, according to Article 3.06, Texas Business Corporation Act, again in effect at pertinent times, the organizational meeting of directors named in the Articles of Incorporation is held upon call of a majority of the incorporators for the purpose of adopting bylaws, electing officers and transacting such other business as may come before the meeting. Again, appellant testified that he did not know anything about the incorporation and that it was owned and operated by Frank Jerni-gan and, while his testimony may have been rejected by the jury, there is no other evidence in the record that appellant ever actually served in the capacity of director or officer of the corporation. Indeed, Attorney Parker testified that after the corporation was chartered he turned it over to Frank Jernigan who thereafter on occasions would bring the corporate book down personally for Parker to instruct him as to making the minutes of the corporation.

      . Parker testified that he did receive the $8,000.00 check and thereafter drew and had appellant execute a deed, admitted in evidence as a State exhibit, whereby the real property on which the furniture store building had been situated was conveyed to him by appellant. Parker explained that although he regarded legal title to the property to be in Frank and Kathryn Jemigan, by reason of the earlier unrecorded assumption deed, since it was reported to him that Kathryn Jemigan was in Florida he considered it expedient to exclude the unrecorded deed from the chain of title and prepare and file for recording a conveyance from appellant to him. Further, he did receive the check from the insurance broker, gave it to Frank Jemigan to have Miles Jernigan endorse it and after that was done paid off the mortgage lien and other indebtednesses, including a bill for automobile insurance owed by Frank Jemigan, and obtained appropriate releases. He received the real property in payment of fees owed by Frank Jemigan and eventually sold it for $4,000.00. Neither his testimony nor anything else in the record shows that appellant personally received any of the proceeds of the $8,000.00 insurance payment.

      . “The stockholders were Wilson, Underwood, Miles Jemigan . . * * * Now, these are the people who are on record as stockholders . . ”
      Of course, as pointed out in n. 3, supra, that he was an incorporator and initial director does not make appellant a stockholder nor give him any financial interest in the business.

      . “Q: Now, what happened in an assumption deed, where he gives an assumption deed to somebody, what does that mean?
      A: Well, the purchaser — to whom he is conveying the property takes title to the property subject to an outstanding indebtedness.
      Q: And agrees to pay if off?
      A: That’s right.”

      . Hetherwick testified that she was a closer for the Port Arthur Abstract Title Company and that the Sabine Realty-Jemigan deed was drawn at her company while the Jernigan-Jer-nigan deed was ordered by it. She confirmed that the acknowledgements were taken on the respective dates shown in her hand.

      .Appellant, being cross-examined by the State, did not recall signing a lease of the premises over to Calvin Wilson and was then confronted with a statement given after the November 7, 1971 fire in which it is reported that although he does not recall the date, “I leased the property to Mr. Calvin W. Wilson, owner and operator of the Treasure House Furniture Company. . The rent was $250™ per month, and I do not have any interest in the business whatsoever.”

        Appellant explained that at first he merely initialed at the top of both pages of the statement prepared by someone else and only signed it after being advised by Attorney Parker in a telephone conversation to do so. Since the statement was introduced for purposes of impeachment only, we cannot accept it as substantiating the fact that there was such a lease. 1 Texas Practice 532, McCormick & Ray, Evidence, § 688.

      . While not alluded to by the parties, that Wilson was president of the corporation soon after the business started is significant. Since election of officers is a statutorily mandated item of business at the first meeting of the initial board of directors, see n. 3, supra, the clear inference to be drawn is that the first meeting was, in fact, held. After a corporation has thus been “organized” and put in business under the ' direction of its officers, it is not at all unusual for members of the initial board of directors to be replaced by others whose interests, financial and otherwise, are more directly implicated by successful management of the business. There is in the record testimony that Underwood terminated his employment in about May and left Port Arthur and that appellant, himself, severed his relationship thereafter, returned to Pensacola and did not come back to work as a salesman, at the special insistence of Frank Jemigan, until about October. Given the extended absences of these two members of the initial board of directors, and Parker’s testimony that from time to time Frank Jemigan came to his office for directions concerning making up the minutes of the corporation — minutes ordinarily are kept only of meetings of the board of directors and the shareholders — one may at least surmise that Underwood and appellant had, indeed, been replaced and were no longer serving as directors. In any event, Parker testified that Frank Jemigan was “the manager and really the driving force behind the Treasure House Furniture Company.”

      . Exhibit No. 36 reflected the litigation over the utility bill described by Attorney Parker. After objections directed to it and others the State announced that it was temporarily withdrawing it “for the proper predicate.” Subsequently it and related instruments were admitted, again over objection, as Exhibits 40A and 40B, described infra in n. 13.
      Exhibit No. 37:
      Suit on Sworn Account. Jack Pearce Co. v. Treasure House, et al. No. A-96,587, 58th District Court of Jefferson County, Texas, Named Defendants: Treasure House, Treasure House, Inc., Frank Jemigan, Mrs. Frank Jemigan, Individually and D/B/A Treasure House and/or Treasure House, Inc. Amount: $2,320.08. Suit filed November 3, 1971. Appellant is not named therein.
      Exhibit No. 38:
      Suit on Sworn Account. J. Isenberg & Son, Inc. v. Treasure House Furniture, Inc., District Court of Jefferson County, Texas, No. A-96,651, Named Defendant: Treasure House Furniture, Inc. Amount: $3,268.35. Suit filed November 15, 1971. Appellant is not named therein.
      Exhibit No. 39:
      Suit on Sworn Account. Teledyne Packard Bell Distributing Company v. Treasure House, Inc., 60th District Court of Jefferson County, Texas, Named Defendant: Treasure House Furniture, Inc. Amount: $6,514.00. Suit filed November 8, 1971. Appellant is not named therein.
      Exhibit 37, 38 and 39 is each an original petition with attached bills, invoices and the like showing an account. That citation was ever issued and served is not shown by an executed return; nor is there an answer in the record.

      . “THE COURT: * * * (T)he Court finds no surprise or prejudice to the defendant in the tender of these exhibits.
      MR. MCGRATH: Your Honor, I would like to put on some testimony concerning my surprise and the prejudice to the defendant if the Court is going to make that finding.
      THE COURT: No.
      MR. MCGRATH: The Court will not let me put on any testimony showing my surprise and prejudice to . . .
      THE COURT: We are not supposed to have a hearing on that
      MR. MCGRATH: I am just asking may I do that?
      THE COURT: No.”

      . Appellant objected to the latter statements and during the ensuing exchange the court stated that it was listening, “but it really doesn’t mean anything,” and pointedly said to the prosecuting attorney:
      “Oh, I think your sematics (sic) are entertaining, but they really do not have much to do with the merits of this trial right now. * * I don’t believe I will admit thirty-eight at the moment. If you think at some later date it becomes admissible you can tender it.”

      . Exhibit 40A:
      Light Bill. Gulf States Utilities Co. v. Frank W. Jemigan, County Court of Jefferson County, Texas, No. 27,107, Named Defendant: Frank W. Jemigan. Amount: $495.01. Suit filed November 15, 1971. Appellant is not named therein. Agreed Judgment rendered in favor of Plaintiff in amount of $350.00 unless if not paid in 6 months, then became $495.01 and execution to issue. Judgment signed March 27, 1972.
      Exhibit 40B:
      Answer of Frank W. Jemigan to petition, Exhibit 40A.

      . Exhibit 41:
      Advertising Bill. Calcasieu Television & Radio, Inc. v. Treasure House Furniture, Inc., et al., County Court of Jefferson County, Texas, No. 27,043. Suit filed October 22, 1971. Named Defendants: Treasure House Furniture, Inc.; Treasure House Furniture Co. of Lake Charles, Louisiana; Miles J. Jemigan; Ray Underwood; Calvin Wilson; and Dewey Godwin. Amount: $5,189.50.
      Exhibit 41A:
      Original answer of Treasure House Furniture, Inc. (If other named defendants in the petition, including appellant, filed an answer, the record does not contain it.)

      . Exhibit 42:
      Advertising Bill. Dixie Broadcasters, Inc. v. Treasure House Furniture, Inc., County Court of Jefferson County, Texas, No. 27,049. Suit filed October 22, 1971. Named Defendants: Treasure House Furniture, Inc.; Treasure House Furniture Co. of Lake Charles, Louisiana; Miles Jemigan; Ray Underwood; Calvin Wilson; Dewey Godwin; and Leroy Morris. Amount: $612.50.
      Exhibit 42A:
      Original answer of Treasure House Furniture, Inc. (Again, if the other named defendants, including appellant, filed an answer, the record does not reflect it.)

      . As pointed out, supra, n. 10, the record does not demonstrate that appellant was ever served with citation or answered the petitions. We further observe that the certificates of the county court clerk attached to Exhibits 41A and 42A are for “Defendant’s Original Answer” and are dated October 11, 1973 — a date, shown by docket entries, to be one during which appellant was presenting his defensive testimony. Surely had the clerk’s files contained an answer by appellant, the State would have obtained a certified copy and have put them in evidence to show his awareness of the petitions.

      . More colorfully, in its argument to the jury, the State alluded to the Cordoleones family, the Godfather of which was portrayed by Marlon Brando, Butch Cassidy and the Hole in the Wall Gang and then applied it as follows:
      “Well, I got to thinking about Pensacola fitting that definition, maybe, with all these guys spreading out and every now and then one of them pops out and pops back in. Boy, they are slick.
      The defendant had the motive, the ability, the interest to set that fire, more so than anyone else, and when you look right down at it what we’ve got is a bunch of wolves, rats and snakes and I don’t think I can think up a term in my judgment which is low enough for these people to come in here and do that to their suppliers and move out with all that furniture sold to the customer and take all the money and bum the building down, take that, too. * * *
      I have prosecuted a number ... of murders and robberies and rapes in this courtroom and for whatever it’s worth to you all there ain’t anybody more sorry on the face of the earth in my judgment, than that bunch of rats that set up Furniture Liquidators in Lake Charles Treasure House, Port Arthur Treasure House, A1 Foster’s in Corpus Christi, Miles Jemigan in Tampa, Florida, Tu-pelo, Mississippi — and on and on and on. They come out of the Hole in the Wall, they take it, and get back. It’s arson and it’s deliberate, and I thank you for listening to me.”

        Closing for the State, the district attorney argued that appellant was but a tool of his brother, Frank Jemigan, and that appellant “was at that time exercising dominion over, having an interest in, or exercising care and control of Frank Jemigan’s property.” After developing that line, he asserted that appellant “alone, of all the people who were involved in this whole conspiracy, was that closely tied to Frank Jemigan and that he would do what he said without question and without facts and he did it .”

      . In its final argument, the State prepared some sort of diagram — it is not in the record before us — purporting to show the interweaving and interlocking relationship of the various players, as reflected by the several Articles of Incorporation and, more significantly for our purposes here, the six lawsuits. First the State totaled up the amount of damages sought and pointed out that such suits usually ask also for interest and attorneys’ fees. Then the State called upon the jury to “read these — these names are on all these papers” and proceeded to summarize the nature of each lawsuit and then explained the importance of the lines it had drawn to show the relationship: “Because you’ve got to be able to relate a particular person with everything in the chain, you see, . . .” Referring specifically to the appellant, the State pointed out his name on the Articles of Incorporation, the $8,000.00 insurance policy, the assumption deed to Frank, the original deed from Sabine Realty, the release and the deed to Parker and, again referring to the diagram, pointed out, “A little bit further he’s named as the defendant in two of the lawsuits.” Similarly, the State argued from its diagram “You can take anyone of these people and just follow them down, everyone of them, just sift through like sand in one of those shaker things. It all settles down, and if you look at this thing and start counting names because Miles says, T wasn’t involved in nothing.’ One, two, three, four, five, six, seven, eight, nine, and count all of the other names you want and you’re not going to find anywhere close to nine. Who’s the kingpin?”

      . Each descriptive section of Article 3731a, supra, permits admitting the writing “so far as relevant.”

      . . . evidence may be offered by the State and the defendant as to the prior criminal record of the defendant. . . ”

      . See n. 11, supra.

      . See Smith v. State, 439 S.W.2d 834 (Tex.Cr.App.1969), quoting at length from Denham, supra, and Redd v. State, 452 S.W.2d 919 (Tex.Cr.App.1970), characterizing Denham as disposi-tive and, on motion for rehearing, 452 S.W.2d at 923-924, noted that the trial court “held a separate and extended hearing” on the issue of surprise and described the resulting ruling admitting the exhibits as “a sufficient determination by the trial court that appellant was not unduly surprised . . .” See also Sierra v. State, 476 S.W.2d 285, 288-289 (Tex.Cr.App.1972) and Viera v. State, 493 S.W.2d 160 (Tex.Cr.App.1973). In each case, as in Denham, the issue arose during the punishment phase of the trial when considerations of surprise may be, and often are, quite different from those obtaining during the guilt-innocence part of it.

      . See nts. 3, 9, 10, 13, 14, 15, 16, and the text at page 6, supra, discussing the initial theory advanced by the State as to ownership and interests.

      . “If appellant introduced isolated portions of this examining trial testimony as impeachment or in contradiction of the girl’s testimony on the final trial, then the State would have the right to introduce such portions of her examining trial testimony as bore upon and were explanatory of those put in evidence by appellant, but that portion of the examining trial testimony that did not shed light upon those introduced by defendant would not be admissible.”

      . Article 39.12, V.A.C.C.P., Forbes v. State, 513 S.W.2d 72, 78 (Tex.Cr.App.1974).

      . See n. 1, supra.

      . The sole incorporator, as permitted in Louisiana, was Leroy Morris and its first directors and officers were Morris, Calvin W. Wilson and Dewey Godwin; Morris is shown as its registered agent at an address in Lake Charles, Louisiana and also as recipient of all authorized shares of stock in the corporation. Appellant’s name does not appear anywhere among the papers.

      . Its incorporators and initial board of directors were Shelby Lowery, Arthur Stewart and Susan Lee Lowery. Appellant’s name does not appear among these papers.

      .In its brief the State argues that appellant was a member of a group of persons that operated similar furniture discount businesses “under corporate fronts” and the two exhibits were admissible as circumstantial evidence tending to show existence of motive for appellant “as a member of this group” to torch the Port Arthur business. That appellant was such a “groupie” is tenuous at best but we fail to understand how the corporate charters shed any light, circumstantial or otherwise, on the matter of his motive. The State further contends that the papers of the Louisiana corporation were admissible to impeach the testimony of Leroy Morris on cross-examination that he had not received any stock in it when the exhibit itself recites he was issued 10,000 shares; similarly, that the corporate papers of Furniture Liquidators were admissible to impeach the testimony of Slim Stewart that he did not have any interest in that corporation and there was no Furniture Liquidators before the fire, the State contending that the exhibit did show his interest in that he was an incorporator and initial director. We note that the offer of both exhibits was not limited for the purpose now stated and, when confronted with the statement in the former Morris reiterated that he never received the corporate shares; as to the latter, again, that Stewart is named as an incorporator and initial director does not ipso facto give him “an interest” in the corporation or its business.