text:
    Thurmond W. PIERCE, Appellant, v. The STATE of Texas, Appellee.
    No. 57567.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Feb. 21, 1979.

      William W. Looney, Jr., court appointed, Killeen, for appellant.
    Arthur C. Eads, Dist. Atty., and James T. Russell, Asst. Dist. Atty., Belton, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

This is an appeal from a conviction before the trial court for possession of marihuana pursuant to Art. 4476-15, Section 4.05(b)(1), of the Controlled Substances Act. The court assessed punishment at three years plus a fine of $200.00, but suspended the punishment and placed appellant on felony probation.

Appellant’s sole assertion on appeal is that the evidence is insufficient to prove beyond a reasonable doubt that he was in possession of marihuana as alleged in the indictment.

In order to establish the unlawful possession of a controlled substance, the State must prove: (1) that the accused exercised care, control and management over the contraband, and, (2) that the accused knew the substance possessed was a controlled substance. Herrera v. State, 561 S.W.2d 175 (Tex.Cr.App.1978); Harrison v. State, 555 S.W.2d 736 (Tex.Cr.App.1977); Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.1976).

Viewed in a light most favorable to the verdict of conviction, the record reflects that on February 4, 1977, officers Charles Remond Spriggs and Greg Koloroutis, pursuant to an informant’s tip, secured a warrant for the arrest of Terry Hybeck, as well as a search warrant for the premises at 302 Wolf Street, Apartment 13, where the officers knew Hybeck resided. After five to ten minutes of surveillance, the officers observed the appellant drive up in a yellow cab and, with the headlights of the cab shining on the front door of the first floor apartment, knock on the door; apparently receiving no answer, appellant got back into his cab and drove away.

Determining from this observation that no one was at home at the apartment in question, the officers left to look for their known suspect, Terry Hybeck. On finding Hybeck in a cafe several blocks away, the officers placed him under arrest and had him accompany them back to the apartment where they gained entry through use of a key found on Hybeck.

In the apartment, the officers found and seized the following items which proved to contain marihuana: two clear baggies in a shoe box lying on the bed in plain view, one clear glass jar on top of a bookcase in the living room, a paper bag on the kitchen counter, 14 baggies placed in a shoe box with the lid on, found on the floor in the dining room which contained 13 marihuana cigarettes or “joints.” Additionally, the officers seized a single key to the apartment and six writings, one of which was a blank personal check reflecting the name of the appellant and an apparent erroneous address of the apartment in question, 320 Wolf Street, Apartment 13. An envelope, addressed to appellant at 302 Wolf, # 13, bearing the postmark of December 29, 1976 was also found. The other documents bore the name of Terry Hybeck and the record does not reveal what they reflected.

Charles E. Roper, the rental manager for Morris Real Estate Agency, testified that he had personally leased the apartment in question to appellant on or about November 17,1976. Roper testified that he had never been inside the apartment since leasing it to appellant and did not know who lived there. According to Roper, others could have been living in the apartment or it could have been sublet, as subleasing, though in violation of the lease agreement, was not an uncommon practice in Killeen. A diagram shows but one bed in this one bedroom apartment.

Because appellant was not present when the contraband was discovered, the above mentioned elements must be proved by circumstantial evidence in order to show that he knowingly possessed the marihuana seized. In addition, a conviction based on circumstantial evidence cannot withstand appellate review of its sufficiency “unless the circumstances exclude every other reasonable hypothesis except that the accused is guilty. Proof which amounts only to a strong suspicion or mere probability is insufficient.” Duff v. State, 546 S.W.2d 283, 287 (Tex.Cr.App.1977); See also generally Stogsdill v. State, 552 S.W.2d 481 (Tex.Cr.App.1977).

For the sake of our inquiry, we will assume that a resident, with ready access to the apartment in question, would not likely be ignorant of existence of contraband therein, under circumstances which show it was found in every room of the dwelling, much of it in plain view. See Herrera v. State, supra; and Turner v. State, 543 S.W.2d 629 (Tex.Cr.App.1976). The writings bearing appellant’s name and the apartment address, therefore, may be used to show his joint occupancy of the premises with Terry Hybeck, which in turn is relevant to the issue of who possessed the marihuana seized at 302 Wolf Street, Apartment 13, on the day in question. Herrera v. State, supra.

The evidence of appellant’s occupancy of the premises consists of: (1) his execution of a month to month tenancy lease for the apartment on or about November 17, 1976; (2) the envelope addressed to appellant at the apartment postmarked December 29, 1976; (3) the check blank bearing appellant’s name and an erroneous recitation of the apartment address. While this evidence appears sufficient to establish that appellant had occupied the premises some two months preceding the day of the search, there is no evidence that appellant resided at the apartment on the day the contraband was seized or at any time in the recent past. Compare Herrera v. State, supra. Nor was any evidence introduced to show that appellant had access to the contraband; in fact, the testimony of the officers clearly illustrated that appellant did not have a key to the apartment, at least on the day in question. Cf. Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.1976). Both officers testified that they never saw appellant exercise any care, control, or management over the marihuana, that for all they knew, it all belonged to Terry Hybeck and appellant had no knowledge of its existence.

Absent an additional showing by the State that appellant either resided at the apartment or had ready access to it, it is reasonable to conclude from the existing evidentiary facts and circumstances that appellant had sublet the apartment to Terry Hybeck within the two preceding months and had stopped by the apartment on February 4 to collect the rent. Being clearly unable to exclude every reasonable hypothesis other than appellant’s guilt, the evidence is insufficient to sustain this conviction.

The judgment is reversed and the cause remanded with instructions to the trial court to enter a judgment of acquittal.

      . “Heibeck” in indictment and appellant’s brief, but “Hybeck” in statement of facts and State’s brief.

      . A written stipulation by the parties reflects that the aggregate amount of marihuana seized from the apartment was 16.44 ounces.

      . When Officer Koloroutis was asked where the check blank and envelope were found, he responded, “I believe those documents were found in the bedroom and various places in the house.” The exact location of these items was not clarified.

      . The application for lease was signed by appellant, but was made on behalf of “Jim Pierce and Dee Ann.”
      The envelope found in the apartment addressed to appellant reflected the return address of “Dee Ann Boales; Burlington, Iowa.”


source: Caselaw Access Project

author: CLINTON, Judge.

license: Public Domain

text:
    Ex parte Thomas Mitchell PLEASANT.
    No. 58181.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Feb. 21, 1979.
    Carol S. Vance, Dist. Atty. and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

This is an application for post-conviction writ of habeas corpus pursuant to Article 11.07, V.A.C.C.P. Petitioner was convicted on September 12, 1966 of murder and robbery by firearms. Punishment was assessed at 45 years on each offense to run concurrently. Petitioner’s original habeas corpus application was held in abeyance and remanded to the trial court for additional fact determinations in an unpublished opinion delivered October 11, 1978, 571 S.W.2d 197. Those factual determinations are now before us, supported by evidence in the record. The State has filed a response in which it confesses error.

Petitioner was indicted for the offenses of murder and robbery by firearms arising out of the same transaction and involving the same victim, Leonard Pushton. Upon motion of the State the robbery by firearms count of the indictment was abandoned and dismissed, and the trial court convicted petitioner of the offense of murder. Petitioner was subsequently convicted by the same trial judge on the same date, September 12, 1966, of the offense of robbery arising out of the same transaction. No appeal was perfected in either case.

The petitioner’s second conviction for robbery by firearms was obtained in violation of the double jeopardy provisions of the State and Federal Constitutions. The conviction must therefore be set aside. Ex Parte Jewel, 535 S.W.2d 362 (Tex.Cr.App.1976); Ex Parte Seelies, 511 S.W.2d 300 (Tex.Cr.App.1974).

No objection was made at trial on the above grounds, nor was any special plea filed. However, the right to raise this issue on post-conviction habeas corpus is not waived by such inaction. Ex Parte Jewel, supra; Ex Parte Seelies, supra.

It is therefore ordered that the conviction for robbery by firearms be set aside.


author: PHILLIPS, Judge.

text:
    Annie STEINHAUSER, Appellant, v. The STATE of Texas, Appellee.
    No. 58446.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Feb. 21, 1979.
    C. E. Clover, Jr., Sealy, for appellant.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for telephone harassment. The penalty was assessed at $101.00.

This cause was originally dismissed for the failure of the trial court to pronounce sentence and enter a written sentence in the record. Articles 42.02 and 40.09(1), V.A.C.C.P. Steinhauser v. State, Tex.Cr.App., 1978, 565 S.W.2d 73.

The supplemental record reflects that sentence was pronounced on May 31, 1978, and notice of appeal was properly given. The appeal is reinstated.

Appellant’s first four grounds of error challenge the sufficiency of the evidence to sustain the judgment of conviction. Appellant was charged by complaint and information as follows:

. . . ANNIE STEINHAUSER on or about the 15th day of July, 1975 and 18th day of July A.D. 1975, and before the making and filing of this INFORMATION, in the County of Fayette, State of Texas, did then and there unlawfully intentionally place two anonymous telephone calls at an unreasonable hour, in an offensive and repetitious manner, and without legitimate purpose of communication, and by this action did intentionally, knowingly and recklessly annoy and alarm Otto Steinhauser, the recipient.

The State was obligated to prove that (1) Annie Steinhauser (2) placed two anonymous telephone calls (3) at an unreasonable hour (4) in an offensive and repetitious manner or without legitimate purpose of communication, and (5) by so acting intentionally, knowingly, or recklessly annoyed or alarmed Otto Steinhauser as the recipient.

A review of the record in a light most favorable to the verdict of the jury discloses the following.

Otto Steinhauser, the alleged recipient, testified that beginning in 1965 he received anonymous phone calls at the phone in his home three or four days per week with occasionally weekly or longer interludes. These calls were placed generally between 8 and 9 a. m., occasionally in the afternoon, and only on isolated occasions at night. He testified that this brother, H. H. Steinhau-ser, the husband of the appellant, had a phone with the number 865-3749. He testified that he was annoyed by these calls but never heard a voice at any time. He testified that he and his brother, the husband of the appellant, had been having trouble since 1957 when he went into business competition with his brother. He testified that in 1975 he authorized the telephone company to take necessary steps to determine the source of these anonymous phone calls. He was informed that when he received the phone call to leave his phone off the hook and contact the phone company in order for them to initiate tracing procedures. He stated that he did this on July 15, 17, and 18, 1975. He also testified that his brother’s home was located near railroad tracks in Flatonia. On cross-examination the complainant .testified that he used his home as his office for his business purposes and used the same phone for both personal and business uses. He further testified that at least two and maybe three people lived in the home of his brother, H. H. Steinhauser, during July of 1975.

On redirect examination he testified that the calls stopped around early October 1975, at the same time the county attorney advised him that he had informed the appellant and her husband that telephone company traces showed that the anonymous phone calls were emanating from their phone number.

The complainant’s wife, Helen Steinhau-ser, testified that she occasionally answered the phone during the years of the anonymous phone calls, but never heard a voice. She once heard a train whistle in the background, but conceded on cross-examination that the train whistle in Flatonia could be heard anywhere in town. She stated that she also received similar anonymous phone calls while working at Gladys’ Cookie Shop near Flatonia. The caller would ask if she were there and when she picked up the phone, it was hung up.

The State called three of the complainant’s children who testified that they had on occasion answered the phone when a female voice asked for the mother. They testified that the voice seemed “middle-aged,” but they did not know who it was.

Gladys Farek, proprietor of Gladys’ Cookie Shop, testified that she had a conversation with the appellant two years prior to her testifying and before she received calls at the shop asking whether Helen Steinhau-ser was there. She testified:

Q [By County Attorney Beck] Now, you couldn’t stand there, of course, and say without any uncertainty at all that it was Annie’s [Steinhauser] voice, could you?
A No, I have never talked to her on the phone so I couldn’t be, I could swear that it was her [sic], but I said it sounded like her.
A I can’t swear to it, I just said it sounded like her.

The only statement made by the caller was, “Is Helen there?”

Mr. Hutchens, a retired employee of the Southwestern Bell Telephone Company, testified that the complainant requested a trap in order to determine the source of the anonymous phone calls and that he placed the necessary devices on the phone lines and conducted the tracing. His tracing of the phone calls showed that the source of the calls was a number registered to Mr. H. H. Steinhauser. He stated that the device he was using to make the traces would allow him to hear voices if someone spoke on the phones at the time the trace was being conducted, but he did not hear anyone.

Mr. Jack M. Hartsell, manager for the Southwestern Bell Telephone Company who maintained the records on telephone traps, including those relating to the complainant’s phone, testified to the contents of State’s Exhibit No. 2. State’s Exhibit No. 2 reflected that three calls placed to the complainant’s phone originated from telephone number 865-3749 on July 16,1975, at 8:30 a. m., July 17,1975, at 8:45 a. m., and July 18, 1975, at 8:30 a. m. Mrs. Helen Steinhauser, the wife of the complainant, was recalled by the State and testified on recross-examination that the family was generally up before 8 a. m. and the nature of their occupations did not require daytime sleep.

Appellant made a motion for instructed verdict alleging the evidence to be insufficient to submit the cause to the jury, which motion was overruled. We agree with the appellant’s contention that the evidence was insufficient to sustain the jury’s verdict. There is absolutely no evidence to show the appellant made the phone calls to the Steinhauser household on the dates alleged. Furthermore, the evidence does not show that the times of these calls could constitute unreasonable hours. Finally, the evidence presented by the State shows that there were people other than the appellant present at the household of H. H. Steinhau-ser where the originating phone for the anonymous phone calls was registered. The State has failed to connect the appellant with the actual calls allegedly made to Otto Steinhauser on the dates alleged. See and compare Faulkner v. State, Tex.Cr.App., 510 S.W.2d 91. As required in the court’s charge to the jury:

In order to warrant a conviction of a crime on circumstantial evidence, each fact necessary to the conclusion sought to be established must be proved by competent evidence, beyond a reasonable doubt; all the facts (that is, the facts necessary to the conclusion) must be consistent with each other and, taken together, must be of a conclusive nature, leading on the whole to a satisfactory conclusion and producing in effect, a reasonable and moral certainty that the accused, and no other person, committed the offense charged.
But in such cases it is not sufficient that the circumstances coincide with, account for, and therefore render probable the guilt of the defendant. They must exclude, to a moral certainty, every other reasonable hypothesis except the defendant’s guilt; and unless they do so, beyond a reasonable doubt, you will find the defendant not guilty.

The evidence in this case clearly does not exclude the reasonable hypothesis that some other person, besides Annie Steinhau-ser, made the phone calls from the phone registered to H. H. Steinhauser on the dates alleged in the information.

The judgment is reversed and reformed to reflect an acquittal. See Burks v. U.S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).


text:
    Ex parte Leslie R. COUNTY.
    No. 59768.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 21, 1979.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

PHILLIPS, Judge.

This a post-conviction application for writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P.

The petitioner complains that the indictments in trial Cause Nos. 74-CR-825 and 75-CR-826 are fundamentally defective and cannot sustain the judgments of conviction entered thereon.

The records before this Court add to the confusion of petitioner’s pleadings since reference is often made to both cause numbers. However, there is only one indictment, judgment, and sentence before us under Cause No. 74-CR-825. We have been advised that there is no case under petitioner’s name with a Cause No. 74-CR-826.

The indictment in Cause No. 74-CR-825 recites, in pertinent part:

the Grand Jury of Bexar County, . . . , do present in and to said Court that in the County and State aforesaid, and anterior to the presentment of this indictment, and on or about the 22ND day of FEBRUARY, A.D., 1974, LESLIE R. COUNTY, hereinafter called defendant, did then and there intentionally and knowingly use and exhibit a deadly weapon, namely: A SHOTGUN, to RAMIRO TREVINO, hereinafter called complainant, while the said defendant was in the act of committing theft of property, namely: LAWFUL MONEY OF THE UNITED STATES OF AMERICA, from said complainant, the owner of said property, without the effective consent of the said complainant, and said acts were committed by the said defendant with the intent then and there to obtain and maintain control of the said property: . . .

Both the judgment and sentence in Cause No. 74-CR-825 reflect that the appellant was adjudged guilty and sentenced for the offense of aggravated robbery.

It is apparent that the indictment sufficiently alleges the aggravating element of aggravated robbery wherein it alleges the petitioner “did then and there intentionally and knowingly use and exhibit a deadly weapon, namely: a shotgun, . . ” However, this indictment fails to allege a robbery, a necessary precondition to a conviction for aggravated robbery, in that it fails to allege that the petitioner “intentionally, knowingly, or recklessly cause[d] bodily injury to another” [V.T.C.A., Penal Code, Section 29.02(a)(1)] or “intentionally or knowingly threaten[ed] or place[d] another in fear of imminent bodily injury or death” [V.T.C.A., Penal Code, Section 29.02(a)(2)].

The elements of aggravated robbery are (1) a person (2) in the course of committing theft (3) with the intent to obtain or maintain control of property either (4a) intentionally, knowingly or recklessly (5a) causes bodily injury or (4b) knowingly or intentionally (5b) threatens or places another in fear of imminent bodily injury or death and either (6a) causes serious bodily injury to another or (6b) uses or exhibits a deadly weapon. See Branch’s Ann.Penal Code, 3rd Edition, Sections 29.02 and 29.03, Pages 305 and 319, respectively; Morrison and Blackwell, New Penal Code Forms, Section 29.03B, Page 33; Williams v. State, 524 S.W.2d 73.

The referenced indictment fails to allege an offense under the laws of this State and is therefore void. The trial court never had jurisdiction to entertain petitioner’s plea. American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598; Articles 21.01, 21.03, and 21.11, V.A.C.C.P.

Furthermore, it is apparent that fundamentally defective indictments may be challenged by way of a post-conviction application for writ of habeas corpus. See Standley v. State, Tex.Cr.App., 517 S.W.2d 538; Ex parte Jones, Tex.Cr.App., 542 S.W.2d 179; Huggins v. State, Tex.Cr.App., 544 S.W.2d 147; Ex parte Lewis, Tex.Cr.App., 544 S.W.2d 430.

The relief requested by petitioner with respect to the judgment of conviction entered on Cause No. 74-CR-825 is hereby granted. The judgment of conviction is reversed and the indictment dismissed.


text:
    Ex parte Daniel RAMIREZ.
    No. 59926.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Feb. 21, 1979.

      Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is a post-conviction application for writ of habeas corpus relief pursuant to Article 11.07, V.A.C.C.P.

Appellant has filed an application for ha-beas corpus relief alleging that the “factual documentary evidence of material importance at the punishment phase of his trial was actively suppressed by the prosecution and the false picture of the facts presented constituted perjured testimony.” Appellant argues that the “prosecution knew or should have known that it was misrepresenting documentary facts.” Appellant’s allegations and his Memorandum of Law and Points of Authorities appear to present two related issues. First, the State denied him a fair trial by introducing false evidence that it knew or should have known was false and second, the State suppressed evidence favorable to the defendant.

The trial court filed findings of fact which related that the appellant was convicted of rape in Cause No. C-9740-IH and was assessed a penalty of 50 years’ imprisonment. That conviction was reversed and remanded in another post-conviction application for collateral relief in Ex parte Ramirez, Tex.Cr.App., 483 S.W.2d 259. Upon remand, appellant was convicted on August 24, 1972, in Cause No. C-9740-IH and was assessed a penalty of 12 years’ imprisonment. After being released from confinement, appellant was brought to the bar for prosecution for robbery by firearms in Cause No. C-73-10638-IH. He was assessed a penalty of 99 years’ imprisonment in that cause and his conviction was affirmed on appeal. Ramirez v. State, Tex.Cr.App., 543 S.W.2d 631. The record in that cause reflects that at the penalty stage of the trial the State introduced a pen packet relating to petitioner’s conviction in Cause No. C-9740-IH which reflected a penalty of 50 years as having been assessed. The State’s closing arguments to the jury emphasized in great detail this prior sentence and its apparent lack of rehabilitative or deterrent value and the need for a much harsher sentence in this cause. The prose-cution recommended a 99-year penalty which the jury imposed. The trial court found that the State and itself had constructive notice of the proceedings in Cause No. C-9740-IH and Ex parte Ramirez, supra.

In its conclusions of law, the trial court considered such “constructive notice” as an irrebuttable common-law presumption which bound the district attorney’s office and resulted in a denial of a fair trial and due process of law to the petitioner in his trial in Cause No. C-73-10638-IH. The trial court relied inter alia on Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957), and Ashley v. Texas, 319 F.2d 80 (5th Cir. 1963).

This Court is not bound by the findings, conclusions, or recommendations of the trial court in reaching decisions on post-conviction applications for writ of habeas corpus relief. Ex parte Hagans, Tex.Cr.App., 558 S.W.2d 457; Ex parte Williams, Tex.Cr.App., 561 S.W.2d 1.

Some material considerations not addressed by the trial court, but which are properly before us from the various records relating to the events involved, are:

(1) Petitioner was a pro se applicant in his successful attack on the original conviction in C-9740-IH;
(2) There is no evidence to show that the prosecutors in G-73-10638-IH actually knew of the post-conviction proceedings in C-9740-IH;
(3) Petitioner’s pro se Motion for Discovery in C-73-10638-IH, which included a request for “The criminal records of the Defendant,” was granted and a notation was made that the “State has complied”; and
(4) Petitioner’s records demonstrate a rare and lucid understanding of legal procedure and principles.

It is against this total backdrop that we must determine what effect, if any, petitioner’s failure to timely object to the introduction of the pen packet containing outdated factual information or the repeated argument by the prosecution which relied on the unobjected to evidence has on our consideration of his contentions.

The trial court relied, inter alia, on Alcor-ta v. Texas, supra, and Ashley v. Texas, supra, for its conclusion that the complained of procedure deprived petitioner of a fair trial and due process of law. However, those cases demonstrate unequivocally that (1) the prosecutor knew of the false testimonial impression presented to the jury (Alcorta) or the psychiatric evidence of incompetency/insanity (Ashley) and (2) the defense was wholly unaware of same. Those cases in turn relied on the principle enunciated in Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935), that

deliberate deception . by presentation of known false evidence is incompatible with “rudimentary demands of justice.”
294 U.S. at 112, 55 S.Ct. at 342.

There is only a vague allegation, but no evidence in support thereof, that the prosecutor in C-73-10638-IH actually knew of the reversal and remand in C—9740-IH. The trial court, instead, relied on the concept of “constructive notice” to reach its conclusions.

The case coming closest to support such a proposition is Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). In that case the government attorney who presented Giglio’s case to the grand jury promised the key witness against Giglio that in return for his cooperation in the grand jury proceeding and trial he would not be prosecuted. At trial, while under cross-examination, the witness denied receiving any consideration from the government for his cooperation. The government trial attorney, different than in the grand jury action, told the jury no promises had been made to the key witness. The Court concluded that the prosecutor’s office was a single entity and a promise made by one member was attributable to all. However, the applicability of Giglio and its concept of “constructive notice” to the case at bar falters on one critical distinction: Ramirez at all times knew what his personal criminal litigation history was. Giglio and his attorney could not know what accords were reached between the government and its key witness. Cross-examination proved futile because of the witness’s perjurious denial of any favorable arrangements with the prosecution. In the instant case, all harm from the erroneous evidence could have been obviated by the simple expedient of a timely objection.

Given the nature of the evidence involved in the cases where deprivation of due process was found because of a prosecutor’s complicity in the presentation of false testimony or testimonial impression, an objection would not be possible. Thus, these cases never discuss the need for an objection.

This jurisdiction had clearly established the proposition that an objection was required to the introduction of evidence pertaining to prior convictions before any complaints based thereon would be considered on appeal. See Tristan v. State, 510 S.W.2d 329; Coronado v. State, Tex.Cr.App., 508 S.W.2d 373; Lopez v. State, Tex.Cr.App., 507 S.W.2d 776; Aldrighetti v. State, Tex.Cr.App., 507 S.W.2d 770; Morrow v. State, Tex.Cr.App., 500 S.W.2d 811; Beard v. State, Tex.Cr.App., 458 S.W.2d 85; Vandall v. State, Tex.Cr.App., 438 S.W.2d 578; and Pendleton v. State, Tex.Cr.App., 434 S.W.2d 694. Petitioner gives us no reason for his failure to make any objection to the introduction of the pen packet or the arguments of the prosecutors based upon that pen packet. His failure to so object constitutes a waiver of any complaint he might now have against the use of such evidence. We commend to the bench and bar the discussion of the policy basis for the contemporaneous objection rule as discussed in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), for a further elaboration on why timely objections are essential to the orderly administration of justice. See also Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). Although the harm from the introduction of the pen packet involved here is obvious, petitioner presents no reason for his failure to comply with this jurisdiction’s contemporaneous objection rule. In fact, from the record before us, we would conclude that petitioner’s behavior in this cause constituted a deliberate bypass which results in the forfeiture of State court remedies as expressed in the broader decision of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), which was narrowed in Wainwright v. Sykes, supra. Although these federal cases referred to were concerned with procedural defaults by State court defendants which would foreclose federal habeas corpus review, we consider them persuasive in determining what this Court will review under applications made pursuant to Article 11.07, V.A.C.C.P.

In conclusion, petitioner’s failure to interpose a timely objection at the penalty phase of his trial in order to prevent the introduction of the pen packet containing erroneóus information constitutes a waiver of any contention he may now wish to raise in light of the peculiar facts of this case.

With regard to petitioner’s contention that the State actively suppressed favorable evidence, we consider same to be without merit. First, we note that the trial records in Cause No. C-73-10638-IH reflect that petitioner’s motion to discover his criminal record was granted and complied with by the State. Second, the information allegedly suppressed by the prosecution was already known to the petitioner. See Ex parte Prior, Tex.Cr.App., 540 S.W.2d 723; Smith v. State, Tex.Cr.App., 541 S.W.2d 831; Greer v. State, Tex.Cr.App., 523 S.W.2d 687; James v. State, 546 S.W.2d 306.

The relief requested is denied.


author: DOUGLAS, Judge. ROBERTS, Judge,

text:
    Ex parte Charles BURKETT.
    No. 60152.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 21, 1979.
    Paul G. Johnson and Michael L. Tobin, Huntsville, for appellant.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

DOUGLAS, Judge.

Charles Ray Burkett filed this application for writ of habeas corpus pursuant to Article 11.07, V.A.C.C.P.

On May 16,1978, petitioner was convicted by a jury of the offense of aggravated perjury. Punishment was assessed at two years.

Petitioner contends that the indictment upon which he was convicted is fundamentally defective in that it fails to allege all of the elements of the offense of aggravated perjury. The relevant portions of the indictment charge that Burkett did:

“. . . Personally appear at an official proceeding, to-wit: a trial in the 89th District Court of Wichita County, Texas, styled ‘The State of Texas vs. Charles Ray Burkett’, and being Cause No. 17,-758-C on the docket of said Court and in connection with and during said official proceeding and after being duly sworn by the Honorable Temple Driver, Judge of said Court authorized by law to administer oaths, made, under oath, a false statement, to-wit: when the said Charles Ray Burkett was.asked Is it true that you have never before been convicted of a felony in this or any other State, he replied Yes, whereas in truth and in fact was convicted of the felony offense of theft of cattle on the 14th day of July, 1969, in the 50th Judicial District Court of Baylor County, Texas, in Cause No. 3003 styled the State of Texas vs. Charles Ray Burkett, and the said Charles Ray Burkett made said false statement with knowledge of the statement’s meaning and with intent to deceive, and said statement was material to the issue under inquiry during said official proceeding as to whether the said Charles Ray Burkett was eligible for probation, and said false statement could have affected the course and outcome of said official proceeding.

The applicable elements of aggravated perjury, as defined in Chapter 37 of the Penal Code, are:

1. A person;
2. With intent to deceive;
3. With knowledge of the statement’s meaning;
4. Makes a material false statement under oath;
5. When the law authorized or required the statement to be made under oath;
6. During or in connection with an official proceeding.

Petitioner contends that the indictment’s failure to allege that “the statement is required or authorized by law to be made under oath” renders the indictment fundamentally defective.

Petitioner did not challenge the indictment during his original trial and even now does not contend that he was not given sufficient notice to defend himself against the charge. Article 21.17, V.A.C.C.P., provides:

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

The exact words of the statute need not be alleged when there is no material difference between the allegations. Nixon v. State, 572 S.W.2d 699 (Tex.Cr.App.1978); Church v. State, 552 S.W.2d 138 (Tex.Cr.App.1977).

The indictment alleges that petitioner made the statement during an “official proceeding and after being duly sworn by the Honorable Temple Driver, Judge of said Court, authorized by law to administer oaths.” An allegation that he took an oath, by someone authorized to give an oath, during an official proceeding necessarily indicates that the statements made under that oath were “authorized by law to be made under oath.” The wording of the indictment and statute is sufficiently similar and there is no material difference. The indictment is proper.

Relief is denied.

ROBERTS, Judge,

concurring.

The indictment fails to allege explicitly the element that “the statement is required or authorized by law to be made under oath.” See Texas Penal Code, Sec. 37.-02(a)(2). I do not commend this form, but I am able to agree that it is not fundamentally defective. The allegation that the statement was made “in connection with and during said official proceeding,” which was “a trial in the 89th District Court of Wichita County, Texas,” necessarily implies that the statement was authorized by law to be made under oath. In this case, the allegation of the aggravating element [see Texas Penal Code, Sec. 37.03(a)(2)] has replaced and included an element of the simple offense.

I want to emphasize that our holding in this case for this offense of aggravated perjury may not apply to other offenses in which the allegation of an aggravating element would not include and replace an omitted element.

I concur in the denial of relief.


text:
    Ex parte Donald PEMBERTON, Appellant.
    No. 60324.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Feb. 21, 1979.

      Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

This is an appeal from a denial of reduction in bail pending appeal. The petitioner was convicted of the offense of aggravated robbery on October 10, 1978, and punishment was assessed at five years. Bail pending appeal was set at $55,000.

A hearing on bail reduction was conducted, and the only testimony presented was that of appellant. His testimony on direct examination established that he had no money except for a check for past employment in the amount of $42.00, he had no real property or other assets, that if bail was posted he would live with his parents and work at a job on which he had an offer, that his “family and friends” could provide $2,500 for bail, and that he could not make a bond in the amount of $55,000.

On cross-examination petitioner explained that if he was able to make bond he would go into the custody of the army to face charges of being absent without leave. There was no other evidence presented on the problem with the army.

There is no precise standard for reviewing bond settings on appeal. We are, of course, guided by Article 17.15, Vernon’s Ann.C.C.P. as to the rules for fixing bail. Bail is intended to assure compliance without being oppressive, and among the factors to be considered are the nature of the offense, the circumstances under which it was committed, and the punishment assessed. Ex Parte Clark, 537 S.W.2d 40 (Tex.Cr.App.1976). Although not controlling, another important factor is the ability or inability of an accused to make the bail. Ex Parte Clark, supra.

There is some evidence in the record suggesting that petitioner was charged with absence from the army without leave. However, few details were presented, and the evidence shows only that a “hold” had been placed on petitioner by the army. In light of all the circumstances, however, we find that the bail was excessive and reduce it to $25,000 in this case. See Ex Parte Wright, 557 S.W.2d 106 (Tex.Cr.App.1977); Ex Parte Schroeder, 546 S.W.2d 316 (Tex. Cr.App.1977); Ex Parte Salizar, 537 S.W.2d 252 (Tex.Cr.App.1976); Ex Parte Clark, supra.

It is so ordered.


author: NYE, Chief Justice.

text:
    Leonardo RAMIREZ et al., Appellants, v. Conan T. WOOD, Sr., et al., Appellees.
    No. 1332.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 14, 1978.
    Rehearing Denied Jan. 25, 1979.

      L. Aron Pena, William J. Quackenbush, Pena, McDonald, Prestía & Zipp, Edinburg, for appellants.
    H. H. Rankin, Jr., Rankin & Kern, McAl-len, George P. Powell, Texas Rural Legal Aid, Edinburg, Ralph L. Alexander, Kelly, Looney, Alexander, Edinburg, for appellees.
   OPINION

NYE, Chief Justice.

This is a trespass to try title suit in which the plaintiffs sought to establish title to certain lands in Hidalgo County, Texas, based on the ten year statute of limitations. Tex.Rev.Civ.Stat.Ann. art. 5510 (1958). The cause was submitted to a jury which returned negative answers to the plaintiffs’ adverse possession issues. Thereafter, the plaintiffs perfected their appeal to this Court.

This consolidated suit concerns numerous tracts of land located in the Los Ejidos de Reynosa Viejo Grant, Hidalgo County, Texas (“the Grant”). The original plaintiffs in this suit, Leonardo Ramirez and his wife, Anita, sought to establish title to and the right of possession to numerous tracts out of the Grant, by adverse possession. Plaintiffs Gregorio Garza and his wife, Cristina, sought to establish their title to a single tract (number 56) of the Grant also through the doctrine of adverse possession.

At trial, it was stipulated by the parties that certain defendants had good and indefeasible record title to various tracts within the Grant. The appellants Ramirez and Garza offered testimony concerning the nature and extent of their respective adverse claims. Several exhibits, charts and maps were introduced as evidence for identity and location of the land in question. In addition, various witnesses testified as to the appellants’ possession with reference to specified tract numbers identified by a map of the Grant in question. This evidence will be discussed in more detail below. At the close of the appellants’ case, the various defendants moved for an instructed verdict on the basis that neither the Ramirez nor the Garzas had pled or proved their adverse possession claim as to any identifiable and ascertainable land in Hidalgo County, Texas. The trial court overruled the motion. The defendants then rested their respective cases without offering any additional evidence. Special issues were then submitted to the jury which returned negative responses to both the Ramirez’ and Garzas’ adverse possession issues. We sever the judgment of the trial court as to the two different sets of appellants, and affirm the judgment as to the Ramirez and reverse and remand the case as to the Garzas.

Both appellants’ complaints on appeal are, in essence, that: 1) a particular juror was disqualified as a matter of law; 2) the trial court improperly refused to give supplementary instructions to the jury concerning a point of law; 3) the trial court failed to include certain special issues in the charge to the jury; 4) the jury’s verdict is contrary to the great weight and preponderance of the evidence; and as to appellant Ramirez, 5) the trial court failed to grant a mistrial after comments were made concerning his criminal record.

Before considering these various points of error, however, we shall first address an argument appellees specifically advance in their “counterpoint.” They argue that the trial court should have granted their motion for instructed verdict on the basis that appellants failed to establish, by either pleading or proof, that they had adversely possessed any identifiable and ascertainable land in Hidalgo County as against each or all of the appellees. The appellants had the burden to identify the land they sought to claim by establishing its location, and by showing the extent of their interest in such land. See Jones v. Mid-State Homes, Inc., 163 Tex. 229, 356 S.W.2d 923, 925 (1962); Coleman v. Waddell, 151 Tex. 337, 249 S.W.2d 912, 913 (1952); Smith v. Griffin, 131 Tex. 509, 116 S.W.2d 1064 (1938). The evidence concerning this matter must be considered in the light most favorable to the appellants. The Garzas sought to recover title of tract 56 located in the Los Ejidos de Reynosa Viejo Grant in Hidalgo County, Texas. The stipulations of defendant T. L. Duncan, Jr., (record owner of this tract), utilized the same description of the tract (tract 56), and in addition, supplied an additional reference to a map and plat filed on a certain page in the Hidalgo County Deed Records. Duncan did not specially except to the Garzas’ description of the land. Absent such a special exception, appellants Garza sufficiently described the land they claimed to entitle them to introduce proof at trial concerning the location and identity of the land in question. In addition, a certified copy of the official map of the Los Ejidos de Reyno-sa Viejo survey was introduced into evidence without objection. This map definitely locates tract 56 in relation to other tracts in the same survey and in addition supplies a reference to another recorded document in which a specific metes and bounds description of this tract could be located. An instructed verdict against the Garzas would have been improper. See McCall v. Grogan-Cochran Lumber Co., 143 Tex. 490, 186 S.W.2d 677, 678-679 (1945); South Texas Development Co. v. Manning, 177 S.W. 998 (Tex.Civ.App.—San Antonio 1915, error ref’d); cf. Trinity River Authority v. Hughes, 504 S.W.2d 822, 824 (Tex.Civ.App.—Beaumont 1974, writ ref’d n. r. e.).

The land description issue raised by the appellees in reference to the Ramirez’ adverse possession claim is more complex. The description of the tracts claimed by the Ramirez in their pleadings was conflicting. In addition, the testimony offered by the Ramirez themselves as to the tracts they enclosed by a fence was also conflicting. They testified they constructed a fence around the property in question in 1953 and thereafter grazed cattle upon the property. Their testimony also suggests that they hired a surveyor who made a survey on the ground of the fence line they allegedly constructed. A copy of the survey is among the papers of this case although it was never introduced into evidence at the trial. Therefore, it cannot be considered. Apparently, the surveyor was not present to testify and Ramirez failed to obtain his testimony through a deposition or through any other permissible means. We conclude that although Ramirez attempted to utilize this survey to plead the description of the land to which they claimed title by limitations, they were actually confused as to the exact tracts that the fence line encompassed as depicted upon the survey. This confusion is apparent when their various pleadings are compared with testimony, diagrams, maps and charts that were actually introduced into evidence.

The appellants Ramirez initially filed suit against defendant Conan T. Wood, Sr., alleging title by adverse possession to: “Tracts of land totaling approximately 265.-75 acres out of Tract 19 (of the Grant).” The total acreage alleged corresponded to the total acreage contained in tract 19 as depicted upon a map introduced into evidence. Appellants’ first supplemental petition, however, described the land in question by incorporating a more restrictive description: “A 186.64 Acre Tract out of Tract 19, Los Ejidos de Reynosa Viejo Grant, Hidalgo County, Texas, more particularly described by metes and bounds as follows: (metes and bounds description).” This acreage total and the metes and bounds description corresponded to the total acreage and description contained in the survey (mentioned above) which was never introduced into evidence.

Thereafter, defendant Wood filed a plea in abatement alleging that the metes and bounds description contained in appellants’ supplemental petition encompassed lands outside of the boundaries of tract 19 which did not belong to him, but rather, belonged to other parties who were necessary parties in appellants’ suit. The trial court granted this plea in abatement and entered an order of consolidation. The Ramirez then filed another supplemental petition which apparently added the Garzas as party plaintiffs, and requested service of process on several additional defendants. This last supplemental petition also described the property in question as: “[t]he tracts and parcels of land situated in Hidalgo County, Texas, which . . include, in whole or in part, lands from the following tracts in the Los Ejidos de Reynosa Viejo Grant in Hi-dalgo County, Texas, to-wit: Tracts 19, 18, 46, 56, 57, 59, 65, 66, 67, 68, 69, 70, 71, 72, 75, and 77.” Appellants Ramirez did not attempt to supercede any of these property descriptions by filing a later amended petition. The Ramirez’ did, however, identify some of the tracts they allegedly constructed fences around as being the same tracts that were located on the map in evidence. This testimony was sufficient to create some fact issues concerning the appellants’ possession of ascertainable land. Cf. Trinity River Authority v. Hughes, 504 S.W.2d 822, 824 (Tex.Civ.App. — Beaumont 1974, writ ref’d n. r. e.). Since the appellees failed to delineate the evidence concerning each tract and in view of our disposition of Ramirez’ claims below, we do not reach the issue of the sufficiency of the proof to the extent of Ramirez’ possession of the other tracts in question.

In point of error number one, both sets of appellants complain that the trial court erred by refusing to grant their challenge for cause of Manuel Cantu, a juror, who allegedly had expressed prejudice against adverse possession suits during voir dire. Appellees contend, on the other hand, that the prospective juror, Manuel Cantu, was not disqualified from serving as a juror and that the trial court did not abuse its discretion in denying appellants’ challenge.

During the voir dire examination, one of appellants’ attorney asked all the prospective jurors the following question:

“Is there any one of you at this time, without hearing the testimony or the evidence and say, ‘we would never allow anybody to come on the property and make themselves owners on it? I would never allow that as a juror.’ Any of you would feel that way at this time?”

Mr. Cantu answered, “I would.” Thereafter, the following exchange took place:

“Q: You don’t feel that that should be the law?
A: No.
Q: Mr. Cantu, you have told the Court that you don’t feel that this is the law. You would not allow it?
A: I wouldn’t.
Q: Your Honor, based on his answer that he would not be in favor of this situation, I would respectfully move to challenge him for cause at this time.
The Court: I’m not through here. Let me explain these things to these people here. You may be seated, now.
All right. Mr. Cantu, let me clarify something to you. You’re not going to be asked, you’re not going to be asked whether the land belongs to Mr. Pena’s clients or whether the land belongs to anybody else. I will give you in my written charge of the law at the very end of this lawsuit, at the end of the charge, I will submit to you certain questions which I call special issues. For example, ‘Do you find from a preponderance of the evidence that the greater weight of the credibility evidence or the belief of evidence, do you find from the evidence,’ ‘do you see, the Plaintiffs are, for example, were in possession of this tract of land or have been in possession of this tract of land for more than ten years or twenty-five years or whatever number of years.’ I will submit that to you and all you have to answer is ‘yes’ or ‘no’ without regard to who is going to win and who is going to lose, and I will decide that. Once you have answered my questions, I will decide who I am going to give the land to. Do you understand that?
A: Yes, sir.
The Court: All right. The Court is, under those circumstances, if I give you an oath to follow and that oath says: ‘That you will well and truly try the case and a true verdict render according to the law and the evidence so help you God.’ That is, would you swear to me that you will listen to the evidence, follow the law as I give it to you, and answer my questions. Can you do that, sir?
Mr. Cantu: Yes, sir.”

Based on this response, the Court rejected appellants’ challenge for cause and Mr. Cantu served as one of the jurors.

Section 4 of Article 2134, Tex.Rev.Civ. Stat.Ann. (1964) provides that a person is disqualified from serving as a juror if he “ . . . has a bias or prejudice in favor of or against either of the parties.” The disqualification for bias or prejudice within the meaning of this section includes bias or prejudice against the subject matter of the litigation. Compton v. Henrie, 364 S.W.2d 179, 182 (Tex.1963); Houston & T. C. Ry. Co. v. Terrell, 69 Tex. 650, 7 S.W. 670 (1888).

In defining the terms “bias” and “prejudice,” our Supreme Court in Compton v.

Henrie, 364 S.W.2d 179, 182 (Tex.1968), stated as follows:

“Bias, in its usual meaning, is an inclination toward one side of an issue rather than to the other, but to disqualify, it must appear that the state of mind of the juror leads to the natural inference that he will not or did not act with impartiality. Prejudice is more easily defined for it means prejudgment, and consequently embraces bias; the converse is not true. The establishment of such a state of mind would disqualify [a prospective juror] from serving on this jury as a matter of law. It is only where there are grounds for disqualification other than those provided for in the statute that the discretionary powers of the trial judge may be exercised, for a disqualification under Article 2134 does not involve a matter of discretion, but a matter of law.”

Bias or prejudice is an intangible factor. Naturally situations may arise under which a factual finding, on the basis of such intangibles must be made as to whether the prospective juror is, in fact, biased or prejudiced. Under these circumstances, the trial court must make that fact finding. His overruling a challenge for cause to the prospective juror carries with it an implied finding that there exists no such bias or prejudice as to constitute a disqualification. That fact finding will not be disturbed in the absence of an abuse of discretion. Swap Shop v. Fortune, 365 S.W.2d 151 (Tex. 1963); Ratcliff v. Bruce, 423 S.W.2d 614, 616 (Tex.Civ.App. — Houston [14th Dist.] 1968, writ ref’d n. r. e.), cert. den. 393 U.S. 848, 956, 89 S.Ct. 134, 373, 21 L.Ed.2d 118, 369 (1968); Bashrum v. Vinson, 330 S.W.2d 538 (Tex.Civ.App. — Houston 1959, writ ref’d n. r. e.).

The trial court did not abuse its discretion in impliedly finding that Cantu was not a biased or prejudiced juror. Cantu’s answer to appellants’ general question indicated a concern for the sanctity of landownership as against anyone who sought to establish title by merely coming onto the land. It did not establish bias or prejudice as a matter of law. Appellants’ attorney failed to further test Mr. Cantu’s original response by adding any variables to restrict his previous general and unconditional question. Clearly, under the laws of adverse possession, a claimant cannot become the owner of property by merely “compng] on the property.” Appellants’ point of error number one is overruled.

The appellants also complain that the trial court erred in failing to include in its charge certain i ¿quested special issues. The special issues requested by appellants Ramirez were as follows:

“1. Do you find from a preponderance of the evidence that Plaintiffs Leonardo Ramirez and wife, Anita C. Ramirez, held exclusive, peaceable and adverse possession, under a claim of right of all of Tracts Fifty-Seven (57), Fifty-Eight (58), Fifty-Nine (59), Sixty-Five (65), Sixty-Six (66), Sixty-Seven (67), Sixty-Eight (68), Sixty-Nine (69), Seventy-One (71), Seventy-Two (72), and Seventy-Five (75), Los Ejidos de Reynosa Viejos Grant in Hidal-go County, Texas, using or enjoying the same for any period of ten (10) years or longer prior to September 4, 1974? Answer ‘Yes’ or ‘No.’ (Emphasis added). 2. Do you find from a preponderance of the evidence in this cause that Plaintiffs Leonardo Ramirez and wife, Anita C. Ramirez, held exclusive, peaceable and adverse possession, under a claim of right of 186.64 acres of land out of Tract Nineteen (19), Los Ejidos de Reynosa Viejos Grant in Hidalgo County, Texas, using or enjoying the same for any period of ten (10) years or longer prior to September 4, 1974? Answer ‘Yes’ or ‘No.’ ”

The trial court refused to submit these special issues and, instead, in special issue number one requested the jury, in essence, to determine first whether appellants Ramirez had adversely possessed “certain lands, if any”, for a period of ten years prior to September 6, 1974. Special issue number two was conditionally submitted upon an affirmative answer to special issue number one and requested the jury to describe the land so adversely possessed. Similar special issues were submitted as to the Garzas’ adverse possession claim.

The appellants contend that the special issues as submitted to the jury in the court’s charge imposed an unreasonable burden upon the jury because the jury was requested to identify and to describe the land, if any, that the appellants had adversely possessed. Appellees, on the other hand, contend, in effect, that the appellants’ complaints were rendered immaterial by the jury’s failure to find that either appellants had adversely possessed any land. We agree with this latter argument.

We do not approve of the manner in which these special issues were submitted to the jury. Undoubtedly, the special issues were submitted in this manner due to the confusing pleadings and proof above discussed concerning the land actually fenced and possessed by the appellants Ramirez. Perhaps, in the conditionally submitted issues, the trial court should have supplied the missing description by tract number and then allowed the jury to select which ones, if any, had been adversely possessed. While we tend to agree that the submission of the issues which requested the jury to furnish a description of the land adversely possessed placed an undue burden upon the jury, the jury’s negative answer to the initial adverse possession special issue rendered the error harmless in this case. See Spring Branch Indep. School Dist. v. Lilly White Church, 505 S.W.2d 620, 624 (Tex.Civ.App.—Houston [1st Dist.] 1973, no writ); Rule 434, T.R.C.P.

In addition, a litigant who wants the trial court to submit to the jury a particular special issue upon which he relies to establish his right to recover, must tender the issue in writing in substantially correct wording to the trial judge in order to complain on appeal. Rule 299, T.R.C.P. This, Ramirez failed to do. The trial court properly refused to submit the special issues requested by the Ramirez.

It should also be pointed out that the parties stipulated that Sofia C. Gomez had good and indefeasible title to 3.885 acres of land out of tracts 71 and 72. It is evident to us from an examination of the official map that tracts 71 and 72 contained 31 acres. The stipulation accounts for a portion of these two tracts. However, the record owners of the remaining acres in these two tracts apparently were not made parties defendant to this suit. It is axiomatic that a judgment in a trespass to try title suit which attempts to adjudicate title to and possession of lands would not be binding on any person who was not a party to such suit. Adams v. Duncan, 147 Tex. 332, 215 S.W.2d 599 (1948); Granberry v. Dallas, 250 S.W.2d 643 (Tex.Civ.App.—Dallas 1952, writ ref’d n. r. e.); Kirby Lumber Corp. v. Southern Lumber Co., 145 Tex. 151, 196 S.W.2d 387 (1946). The trial court also correctly refused to submit the second special issue requested by appellants Ramirez. This issue concerned Ramirez’ adverse possession claim to tract 19 alone. However, appellants Ramirez admitted during the course of trial they did not possess all of this tract. Appellants’ point of error four is overruled.

In point of error number two, the appellants complain that the trial court erred by refusing to give the jury further instructions after they had commenced deliberations as to the definition of adverse possession.

The court in its charge to the jury instructed the jury as follows:

“Our law provides that a person may acquire title to land by exclusive, peaceable and adverse possession thereof, cultivating, using or enjoying the same for any period of ten (10) years or more.
‘EXCLUSIVE POSSESSION’ means an exclusive dominion over the land and an appropriation of it to the claimant’s use and benefit.
‘PEACEABLE POSSESSION’ is such possession as it is continuous and not interrupted by adverse suit to recover the land during the said period of ten (10) years or more.
‘ADVERSE POSSESSION’ is an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claims of another.
‘CLAIM OP RIGHT’ means an intention to claim the land as one’s own.”

During the jury’s deliberations, the foreman of the jury sent the following written questions to the court:

“Could you please clearify (sic) for us the definition of adverse possession? Does he have to verbally claim it to the title holders or can he simply verbally claim it to anyone?”

The appellants requested the court to tender the following written instruction to the jury:

“In connection with your inquiry for clarification of the Court’s definition of adverse possession, whether actual notice must be given to record owners of the property involved, you are further instructed that actual notice is not required to be given to record owners of such properties.”

The court refused to submit the tendered instruction to the jury and instead, made the following written reply to the jury’s question: “The law is given to you as in the Court’s charge.”

Rule 287, Texas Rules of Civil Procedure, provides to the effect that the jury may receive further instructions of the court touching on any matter of law, either at their request or upon the court’s own motion.

The appellants had not objected to the trial court’s definition of adverse possession and did not request an additional instruction prior to the time the charge was submitted to the jury. The definition of “adverse possession” contained in the court’s charge follows the Legislature’s definition of that term contained in Tex.Rev.Civ.Stat. Ann. art. 5515 (1958). See Pinchback v. Hockless, 138 Tex. 306, 158 S.W.2d 997 (1942). The jury’s request for clarification of the definition of adverse possession concerned the “claim of right” portion of that definition. There is nothing in the “claim of right” definition that suggests that the claimant must verbally claim title to anyone. If there is no verbal assertion of claim to the land brought to the knowledge of the landowner, the adverse possession must be so open and notorious and manifested by such open or visible act or acts that knowledge on the part of the landowner will be presumed. Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781, 787 (1954); Winchester v. Porretto, 432 S.W.2d 170 (Tex.Civ.App.—Houston [1st Dist.] 1968, writ ref’d n. r. e.). We conclude that the instruction and definition of adverse possession as submitted by the trial court was in substantially correct form.

Ramirez and Garza each sought to establish their title to the land in question pursuant to the ten year statute of limitations, Tex.Rev.Civ.Stat.Ann. art. 5510 (1958). Appellants had the burden to plead and prove each of the statutory requirements by a preponderance of the evidence in order to prevail on their adverse possession claims. Such proof must be clear and satisfactory. Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781, 787 (1954); Holstein v. Adams, 72 Tex. 485, 10 S.W. 560 (1889); Champion Paper & Fibre Co. v. Wooding, 321 S.W.2d 127 (Tex.Civ.App.—Waco 1959, writ ref’d n. r. e.). Under the ten year statute, it is incumbent upon a claimant to show affirmatively: 1) possession of the land; 2) cultivation, use, or enjoyment thereof; 3) an adverse or hostile claim; and 4) an exclusive domination over the property and an appropriation of it for his own use and benefit for the statutory period. Tex.Rev.Civ.Stat.Ann. art. 5510 (1958); 2 Tex.Jur.2d, Adverse Possession, § 222 pp. 367-68 (1959); and authorities cited therein. In response to special issue number one, the jury did not find that the Ramirez had perfected their claim of adverse possession. The jury also returned a negative finding in special issue number four which made a similar inquiry regarding the Garzas’ adverse possession claim. The remaining special issues were conditionally submitted upon affirmative answers to these special issues and, therefore, remained unanswered. Appellants Ramirez and Garza each complain that the “verdict of the jury is contrary to the great weight of the evidence.” We, therefore, examine the entire record in this case in accordance with the rules set forth in In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The jury’s response to special issue number one relating to the Ramirez claim is not against the great weight and preponderance of the evidence. The Ramirez’ adverse possession claim was predicated upon the use of the land for grazing cattle within a fence they allegedly built enclosing the particular identifiable land they claimed.

An adverse claimant who relies upon grazing as the only evidence of his adverse use and enjoyment must show as a part of his case that the land in dispute was designedly enclosed so as to show the asserting of a claim that is hostile to the owner. McDonnold v. Weinacht, 465 S.W.2d 136, 141-142 (Tex.1971); Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781 (1954). The testimony concerning this issue was disputed. First, who actually constructed the fences was in sharp conflict. The testimony of Ramirez was to the effect that they constructed all of the fences in question. On the other hand, appellee Wood, called by the appellants as an adverse witness, testified that he was the one who constructed all of the fences. The Ramirez gave conflicting testimony as to their original purpose for constructing the fence. Their testimony strongly suggested a “casual enclosure” which is not sufficient to support a claim of adverse possession. See McDonnold v. Weinacht, 465 S.W.2d 136, 141-142 (Tex.1971); Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781 (1954).

Closely associated to the principle of casual enclosure is the question of the presence or absence of the essential hostile claim or “claim of right.” Naked possession unaccompanied by a “claim of right,” i. e., an intent on the part of the occupant to claim the land as his own, will not commence the running of the limitations period. Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781, 787 (1954). The evidence pertaining to this vital issue is also in sharp conflict. Both Mr. and Mrs. Ramirez admitted that they did not intend to claim as their own any of the land in question until sometime in 1973. This change in attitude occurred after discussing their ownership possibilities with other relatives. This testimony directly conflicts with their previous testimony which was to the effect that in 1953 when they built the fence they intended to claim the land as their own.

There were other conflicts apparent in the record as they relate to the essential elements necessary to establish the Ramirez’ title by limitations. The conflicts inherent in appellants’ (Ramirez) own testimony support our conclusion that the jury’s answer to special issue number one was not against the great weight and preponderance of the evidence.

Appellant Garza testified that he had grown up in the home located on tract 54 and had lived there all of his life (approximately seventy-seven years); that approximately fifty years ago, his father had constructed a fence that surrounded both tracts 54 and 56; and that since his father’s death forty years earlier, Garza had claimed lot 56 as his own. Garza further testified he used lot 56 for farming purposes ever since the time his father died. Garza’s mother died approximately five years after the death of his father. The evidence indicates Garza had used tract 56 continuously, openly and exclusively for some fifty-five years prior to the time this suit was filed.

The origination of Garza’s claim to tract 56 caused some confusion at the trial. Garza testified: 1) that his father had given tract 56 to him; or 2) that he had inherited the property from his father who had died intestate, and without administration of his estate. Although Garza had several siblings, he testified that most of them were dead and that none of them had ever claimed lot 56.

Garza’s testimony raises the question of whether he was relying upon a perfected limitations title in his father or relying upon establishing his own limitations title to the land in question. At trial, appellees argued that since Garza had testified that he had inherited the property intestate from his father and since he had siblings, that Garza could not claim the entire tract 56 as his own. If Garza’s father established a limitations title to tract 56, then title to tract 56 passed to his heirs at the time he died. See Davis v. Breithaupt, 400 S.W.2d 390 (Tex.Civ.App.—Austin 1966, writ ref’d n. r. e.); Salinas v. Gutierrez, 341 S.W.2d 558 (Tex.Civ.App.—San Antonio 1960, writ ref’d n. r. e.); Chittim v. Auld, 219 S.W.2d 702 (Tex.Civ.App.—San Antonio 1949, writ ref’d n. r. e.). On the other hand, if Garza’s father did not acquire title to tract 56 by limitations, there is ample evidence in the record that appellant Garza acquired title to tract 56 by limitations on his own behalf.

We have reviewed the entire record concerning the jury’s response to the adverse possession issue of appellants Garza. We hold this answer is so against the great weight and preponderance of the evidence as to be manifestly unjust. The evidence concerning the Garzas’ adverse claim is virtually undisputed, and, as previously mentioned, the defendants offered no independent rebuttal testimony.

The remaining point of error is brought forward only by the appellants Ramirez. Although this point of error attacks certain alleged and unspecified “comments by counsel for defendants,” the general arguments under this point of error suggest that the appellants intend to attack .the trial court’s action in admitting certain testimony and its alleged failure thereafter to “properly instruct the jury” to disregard such evidence.

The rule of “presumed prejudice” no longer prevails in Texas. Walker v. Texas Employers Ins. Assoc., 155 Tex. 617, 291 S.W.2d 298 (1956). Rules 434, 503, Texas Rules of Civil Procedure. When the appellant complains that the trial court improperly admitted certain evidence, he has the appellate burden to affirmatively show: 1) that the trial court erred by admitting the evidence; and 2) that such error was reasonably calculated to and probably did cause the rendition of an improper judgment. Colonial Life & Accident Ins. Co. v. Squyres, 550 S.W.2d 413 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.); Best Steel Bldgs., Inc. v. Hardin, 553 S.W.2d 122 (Tex.Civ.App.—Tyler 1977, writ ref’d n. r. e.). On appeal, we are required to review the entire record and grant a reversal only if we are convinced that a different verdict would have been rendered but for the error. Schwab v. County of Bexar, 366 S.W.2d 952 (Tex.Civ.App.—San Antonio 1963, writ ref’d n. r. e.); Flores v. Missouri-Kansas-Texas Railroad Co., 365 S.W.2d 379 (Tex.Civ.App.—Dallas 1963, writ ref’d n. r. e.); Wrobleski v. Coleman, 283 S.W.2d 822 (Tex.Civ.App.—Texarkana 1955, no writ).

On cross-examination, Mrs. Ramirez admitted, in effect, that her husband was not present on the property for the years 1968 to 1973 because he was in the penitentiary for this time period. The question leading to her answer was objected to on the ground that it was prejudicial and immaterial. The objection was overruled and prior to her answer, appellants’ counsel requested “the Court to make a special instruction at this time about the purpose of this evidence.”

The absence of Mr. Ramirez from the property in question during the very time appellants claimed title by limitations was relevant to the issue of adverse possession. The absence of Mr. Ramirez rendered the acts of Mrs. Ramirez relative to the property in question controlling in determining whether all of the necessary elements of adverse possession were present during this particular time period. The fact that Mr. Ramirez was incarcerated, however, would appear to be objectionable.

Where the proffered evidence is admissible only in part, the trial court does not commit reversible error in admitting the evidence in its entirety if the objecting party fails to properly object to the inadmissible portion. Brown & Root, Inc. v. Haddad, 142 Tex. 624, 180 S.W.2d 339, 341 (1944); cf. Hurtago v. Texas Employers Ins. Assoc., 574 S.W.2d 536 (Tex.1978). It is incumbent upon the objecting party to make a specific objection to the inadmissible portion and then request a limiting instruction. Forrest v. Moreno, 161 S.W.2d 364, 365 (Tex.Civ.App.—San Antonio 1942, writ ref’d). This was not done.

Outside of the jury’s presence, the appel-lees’ attorney obtained permission to impeach Mr. Ramirez’ testimony by eliciting testimony that he was convicted of the crime of murder with malice. The trial court held that this evidence would be admissible for impeachment purposes only on the basis that Mr. Ramirez was convicted of a crime involving moral turpitude. Subsequently, Mr. Ramirez was asked whether or not it was true that he had been convicted of a crime of murder with malice and his attorney objected generally to this question on the basis that the requested testimony would be immaterial, irrelevant, inflammatory and prejudicial. These general objections were overruled and Mr. Ramirez gave an affirmative response.

In Texas, where a witness has been legally charged and convicted of a crime involving moral turpitude, such evidence of the conviction is admissible in evidence as touching on his credibility as a witness. See Compton v. Jay, 389 S.W.2d 639, 641 (Tex.1965). Appellants do not contend that Ramirez’ conviction does not fall within this rule. Appellants do contend that the following exchange occurring after Ramirez admitted his conviction created reversible error:

“Q: All right. When did you go out, when did you go out from the penitentiary?
A: I believe it was on April 26 or 24th, something like that.
Q: Of 1973?
A: ’73.
Q: All right. And were you released on parole?
A: On parole.
Q: And your sentence was twenty years?
The Court: Don’t go into that.
(Appellants’ attorney): Excuse me, I object to that.
The Court: Don’t go into any of that evidence, sir.
(Appellants’ attorney): We ask that the jury be instructed not to consider the question of (appellees’ attorney), please. The Court: All right. At this time the Court is going to instruct the jury not to consider any comment by (appellees’ attorney) on the term of penitentiary of twenty years or any other such information. You are to disregard that entirely from your minds. Do not consider it for any purpose whatsoever. Do not let that statement prejudice you in this particular case.”

Appellants’ motion for mistrial was overruled.

The main thrust of appellants’ contention, as we understand it, is that the final question above propounded by appellees’ attorney was so prejudicial that Mr. Ramirez’ failure to answer it and the trial court’s subsequent instruction to disregard the comment was insufficient to cure such prejudicial effect. We do not agree.

Generally, unanswered questions, even as to improper matters, do not constitute reversible error. Firestone Tire & Rubber Co. v. Rhodes, 256 S.W.2d 448 (Tex.Civ.App.— Austin 1953, writ ref’d n. r. e.); J. H. Hubbard & Son v. Greer, 255 S.W.2d 389 (Tex.Civ.App.—Austin 1953, no writ); Gragg v. Williams, 310 S.W.2d 394 (Tex.Civ.App.—Fort Worth 1958, no writ); Hernandez v. H. S. Anderson Trucking Co., 370 S.W.2d 909 (Tex.Civ.App.—Beaumont 1963, writ ref’d n. r. e.). This is particularly true here, where the trial judge immediately issued an instruction that the jury disregard the comment. The trial judge properly instructed the jury in this instance. Even if it was error, the appellants have failed to show that such error was reasonably calculated to cause and did cause the rendition of an improper judgment. Rule 434, T.R.C.P. Appellants’ point of error three is overruled.

The judgment of the trial court is severed as to the adverse possession claim of appellants Garza pertaining to tract 56. This portion of the judgment is hereby reversed and such cause is remanded for a new trial. The remaining portion of the trial court’s take nothing judgment as to appellants Ramirez is affirmed. One half of the costs are assessed against appellants Ramirez and the other half is assessed against the appellees.

REVERSED AND CAUSE REMANDED IN PART, AND AFFIRMED IN PART.


author: ROBINSON, Chief Justice.

text:
    BUNNETT/SMALLWOOD & COMPANY, Appellant, v. HELTON OIL COMPANY, Appellee.
    No. 8905.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 27, 1978.
    Rehearing Granted Jan. 22, 1979.

      Gibson, Ochsner & Adkins (Herman Jes-ko), Amarillo, for appellant.
    Aldridge, Harding, Aycock & Actkinson (Charles F. Aycock), Farwell, for appellee.
   ROBINSON, Chief Justice.

In a suit on a sworn account, the trial court held that Bunnett/Smallwood & Company was primarily liable for the debt of Monty Corbin to Helton Oil Company on the theory that Helton Oil was a third party beneficiary of Bunnett/Smallwood’s contract for the purchase of Corbin Trailer Sales. Bunnett/Smallwood appeals. Reversed and remanded.

Monty Corbin owned Corbin Trailer Sales and Corbin Trucking. Both businesses were heavily in debt. Helton Oil Company was one of Corbin’s creditors. Among other things, Helton furnished gasoline and diesel fuel to Corbin’s enterprises pursuant to a key stop agreement whereby Corbin and his employees had access to fuel pumps which recorded their purchases on meters activated by their keys.

On July 2,1975, Monty Corbin dba Corbin Trailer Sales and Bunnett/Smallwood made an agreement for the sale and purchase of certain assets of Corbin Trailer Sales. In consideration for the sale of the business, Bunnett/Smallwood agreed to set up a $75,-000 dissolution account to pay Corbin’s creditors. The contract provided:

2. Purchase Price.
The purchase price to be paid Seller by Buyer for all the assets set out in Article 1 above, shall be:
a. One hundred (100) shares of letter stock of Bunnett/Smallwood & Co. stock which will be issued on February 1, 1976 if all provisions of this contract have been complied with by Seller; and
b. Seventy-five Thousand and no/100 Dollars ($75,000.00) cash, which will be paid to various creditors of Seller as more fully listed and sworn to by Seller on the attached Exhibit “G”. In the event the total liabilities of Seller on date of closing exceed $75,000.00, then any excess liabilities shall be the sole responsibility of Seller. Should Buyer be obligated to assume any such indebtedness of Seller, then Buyer shall offset such amounts against future bonuses or the stock to be issued according to Article 2a above. The offset will be effeeuated (sic) by Buyer reducing the number of shares issued at the rate of one (1) share for each $200.00 assumed or paid. The purchase price will be allocated among the various assets according to the various Exhibits made a part hereto.

The attached Exhibit “C” is only an affidavit that the “attached list of creditors and amounts owing them is true and correct as of the date indicated.” No list of creditors is attached to the contract.

The testimony shows that in the course of negotiations Corbin had furnished two different lists to Bunnett/Smallwood—a Corbin Trailer list and a Corbin Trucking list. In evidence are a Corbin Trucking accounts payable list dated June 25, 1975, and a Corbin Trailer accounts payable list dated June 30,1975. Numerous items, including a $5,893.62 debt to Helton Oil, appear on both lists. The debts on the Corbin Trailer list, including certain items written in longhand, total in excess of $90,000. Corbin testified that the actual indebtedness was about $120,000. Bill Jenkins, who was general manager of Corbin Trailer when it was a division of Bunnett/Smallwood, testified that the indebtedness was approximately $150,000.

Bunnett/Smallwood set up the $75,000 dissolution account and paid out all but $339.14 on debts of Corbin. Helton Oil received cheeks of $1,500, $500 and $258.42 from the dissolution account. The checks were issued on the joint signature of Monty Corbin and Bill Jenkins, representing Bun-nett/Smallwood. There is no contention that Corbin complied with all of the provisions of the contract by February 1, 1976. The 100 shares of stock referred to in contract provision 2a were not issued.

The sale was effective July 2,1975. Late in July, Corbin turned in the diesel key stop keys. Two gasoline keys were retained until September 29, 1975, when they were picked up by Helton Oil. Through June 28, Corbin Trailer owed $5,893.62 to Helton Oil. A charge of $57.20 and a key stop charge of $109.03 were recorded on July 1 and 2 bringing the total balance due to $6,059.85. Between July 2 and October 30 (the final ledger entry), an additional $1,629.88, including key stop items, was charged to Cor-bin Trailer, Division of Bunnett/Smallwood. During this time, the three checks totalling $2,258.42 were paid to Helton Oil from the dissolution account. An additional $791.05 in payments and $200.00 in credits for refund of key deposits are shown on Helton Oil’s records, leaving the balance of $4,440.26. The $791.05 paid by Bunnett/Smallwood covers all purchases beginning July 1 except for certain key stop charges in July, for which Bunnett/Small-wood denies liability, and one $1.40 item which it agrees it owes.

On November 14, 1975, Helton Oil filed suit on a sworn account of $4,440.26 against Monty Corbin, dba Corbin Trailers. The suit did not refer to Bunnett/Smallwood and did not attempt to segregate the charges made after Monty Corbin sold the business. Corbin moved for dismissal, alleging that the account was owed by Cor-bin Trailer, a Division of Bunnett/Small-wood. On July 23, 1976, Helton Oil filed a first original amended petition to include Bunnett/Smallwood as a defendant. The amended petition was identical to the original petition, except that Bunnett/Small-wood was joined. No other pleadings were filed and no amendments were requested by Helton Oil.

On August 11, 1976, Bunnett/Smallwood filed its original answer, alleging that “each and every item ... is wholly not just or true . . ..” The answer further alleged that before July 1, 1975, Bun-nett/Smallwood had no interest in Corbin Trailer. On November 29, 1976, Bun-nett/Smallwood filed a cross action against Monty Corbin for indemnity in the event that Helton Oil recovered any amount from Bunnett/Smallwood.

The case was tried to the court without a jury. When plaintiff sought to introduce testimony that Bunnett/Smallwood had agreed to pay the Corbin debt to Helton, Bunnett/Smallwood objected on the grounds that such testimony was outside the pleadings. The statement of facts shows the following ruling by the court:

THE COURT: I think that the Doctrine of Ater (sic) Pleading by all pleadings on file, will close any arguments. Now, let’s get on with the case. Objection overruled.

On September 15, 1977, the trial court granted judgment to Helton Oil for $4,440.26, the debt on the account, plus $442.15 interest and $1,500 attorney’s fees. The court found that Bunnett/Smallwood was the primary obligor on the debt and that in the event Helton Oil recovered any amount of the judgment from Monty Cor-bin, Corbin would be entitled to indemnity and contribution from Bunnett/Smallwood. The court made the following findings of fact:

(1) By its written contract with Monty Corbin, Bunnett/Smallwood Company agreed to assume the entirety of the indebtedness owed by Monty Cor-bin to Helton Oil Company.
(2) Monty Corbin and Bunnett/Small-wood Company both intended, upon entering into such contract, that the same would inure to the benefit of Helton Oil Company.
(3) Helton Oil Company accepted the contract of Bunnett/Smallwood Company and Monty Corbin.
(4) By its refusal to pay the entirety of Monty Corbin’s debt to Helton Oil Company, Bunnett/Smallwood Company breached its contract with Monty Corbin and the third party beneficiary promise made therein for the benefit of Helton Oil Company.
(5)The current unpaid balance of Monty Corbin’s debt to Helton Oil Company is $4,440.26; interest at 6% per an-num to date of judgment is $442.15 and the sum of $1,500.00 would fairly and reasonably compensate Helton Oil Company for attorney fees necessarily incurred and to be incurred in the prosecution and collection of the claim here sued upon.

The trial court concluded, inter alia, that “Plaintiff Helton Oil Company’s general pleading of debt against defendant Bun-nett/Smallwood Company being unchallenged by special exception or written motion, such pleading is accordingly adequate to support proof of Bunnett/Smallwood Company’s contract assumption of Monty Corbin’s debt to Helton Oil Company.”

By numerous points of error, Bun-nett/Smallwood challenges, inter alia, the sufficiency of the pleadings to support the judgment and the legal and factual sufficiency of the evidence to support the findings of fact by the trial court.

Rule 301, Tex.R.Civ.P., provides that the judgment shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity. This rule is subject to the limitations of Rule 67, Tex.R.Civ.P., which provides that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. In the absence of express or implied consent, it is not permissible for a litigant to plead one cause of action, and to recover on a different cause of action, not pled. Regal Properties v. Greenberg, 538 S.W.2d 190 (Tex.Civ.App.—Dallas 1976, no writ); Cearley v. Cearley, 331 S.W.2d 510 (Tex.Civ.App.—Dallas 1960, no writ).

In the case before us, plaintiff Hel-ton plead a cause of action based on a sworn account alleging that plaintiff sold and delivered to defendants the goods, wares, merchandise and/or services described in the attached exhibit. No other cause of action was alleged. We do not find that a cause of action based on a third party beneficiary contract was tried by consent. The record shows that Bunnett/Smallwood timely objected to the evidence and that its objection was overruled by the trial court. It was not required to reiterate the objection thereafter. Where a party makes a proper objection to the introduction of testimony and is overruled, he is entitled to assume that the judge will make the same ruling as to the other offers of similar testimony, and he is not required to repeat the objection. Crispi v. Emmott, 337 S.W.2d 314 (Tex.Civ.App.—Houston 1960, no writ); J. I. Case Threshing Machine Co. v. O’Keefe, 259 S.W. 222 (Tex.Civ.App.—Amarillo 1924, writ dism’d). See also, State v. Lock, 468 S.W.2d 560 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.).

We conclude that the trial court erred in entering judgment on a theory not supported by the pleadings and in overruling Bunnett/Smallwood’s objection to evidence that sought to establish an independent agreement by Bunnett/Smallwood to pay the account balance owed by Corbin.

For the same reasons, the trial court erred in awarding Monty Corbin indemnity against Bunnett/Smallwood. Corbin pled no cause of action, for indemnity or otherwise, against Bunnett/Smallwood.

There is an additional reason why the judgment against Bunnett/Smallwood cannot stand. Assuming that Helton Oil is a third party beneficiary of the contract between Corbin and Bunnett/Smallwood, it acquired no greater rights than the extent of the promises made by Bunnett/Smallwood in the contract. In other words, Helton Oil can only enforce the contract as written. Casey v. Watts, 130 S.W.2d 396 (Tex.Civ.App.—Waco 1939, writ dism’d judgmt. cor.). The contract expressly provides that, in the event the total liabilities of Corbin on the date of closing exceed $75,000, then any excess liabilities shall be the sole responsibilities of Corbin. It is undisputed that Corbin’s liabilities were greatly in excess of $75,000 and that Bunnett/Smallwood set up the $75,000 dissolution account and virtually exhausted it in payment of Corbin’s debts. After considering all of the evidence, we are of the opinion that the evidence is insufficient to support the findings that Bunnett/Smallwood agreed to assume the entirety of the indebtedness owed by Monty Corbin to Helton Oil and that Bunnett/Smallwood breached its contract by its refusal to pay the debt to Helton Oil in its entirety.

We next consider Bunnett/Small-wood’s contention that the trial court erred in awarding Helton Oil attorney’s fees. Under Tex.Rev.Civ.Stat.Ann., art. 2226 (Vernon Supp.1978-1979), attorney’s fees are allowable in a suit on a sworn account. However, the trial court did not award judgment against Bunnett/Smallwood on account. The judgment was not for goods sold to Bunnett/Smallwood. See Rio Refrigeration Co. v. Thermal Supply of Harlingen, 368 S.W.2d 128 (Tex.Civ.App.—San Antonio 1963, no writ). The court found that the unpaid balance of Monty Corbin’s debt was $4,440.26 and it rendered judgment against Bunnett/Smallwood on the theory that Bunnett/Smallwood had contracted to pay Corbin’s debt. Thus, the liability of Bunnett/Smallwood is predicated on the contract and not on the account, and attorney’s fees are allowable only as provided in the contract. New Amsterdam Casualty Co. v. Texas Industry, Inc., 414 S.W.2d 914 (Tex.1967). The contract contains no provision requiring Bunnett/Smallwood to pay attorney’s fees. We conclude that the trial court erred in assessing attorney’s fees against Bunnett/Smallwood.

For the foregoing reasons, the judgment of the trial court is reversed and the cause remanded to the trial court.

ON MOTION FOR REHEARING

On motion for rehearing, defendant Bunnett/Smallwood correctly contends that Monty Corbin did not perfect an appeal from the judgment rendered against him in the trial court and that that portion of the trial court judgment became final. See Maxey v. Citizens National Bank of Lubbock, 489 S.W.2d 697, 705 (Tex.Civ.App—Amarillo, rev’d on other grounds, 507 S.W.2d 722 (Tex.1974)).

For the reasons given in our original opinion, the judgment against Bun-nett/Smallwood & Company should be reversed. It appearing to the court that the case was tried on the wrong theory and the evidence not fully developed, we are of the opinion that the interest of justice demands a new trial. Morrow v. Shotwell, 477 S.W.2d 538, 541 (Tex.1972).

Accordingly, the cause of action by Hel-ton Oil Company against Monty Corbin d/b/a Corbin Trailers is severed, the judgment against Bunnett/Smallwood & Company is reversed, and the cause of action of Helton Oil against Bunnett/Smallwood & Company is remanded to the trial court.