author: DALLY, Judge.

text:
    Guadalupe GARCIA, Appellant, v. The STATE of Texas, Appellee.
    No. 54179.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 5, 1978.
    Rehearing En Banc Denied April 26, 1978.

      Charles C. Snuggs, Lubbock, court appointed on appeal, for appellant.
    Alton R. Griffin, Dist. Atty., and Charles C. Bailey, Asst. Dist. Atty., Lubbock, for the State.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for aggravated rape; punishment was assessed at imprisonment for 25 years.

Appellant asserts that: (1) the evidence is insufficient to sustain the conviction; (2) the court abused its discretion in overruling appellant’s motion to suppress the prosecu-trix’ in-court identification of appellant; (3) the court erred in failing to file findings of fact and conclusions of law regarding appellant’s motion to suppress; (4) evidence was improperly excluded at the punishment hearing; and (5) the court erred in overruling appellant’s motion for a new trial based on jury misconduct.

On January 15, 1974, the prosecutrix, a seventeen-year-old student at Lubbock High School, went to the school parking lot shortly before 2:00 p. m. When she arrived in the parking lot, a gold Chevrolet Camaro driven by a Mexican-American male stopped beside her. He asked the prosecu-trix what her name was, and when she ignored him he opened the car door, grabbed the prosecutrix, and pulled her into the car. The man pulled out a gun and told the prosecutrix not to speak or he would kill her. He then drove to a park north of the school where he forced her to undress him as well as herself; he then raped her. She testified that he was holding the gun next to her head during these events. She also testified that his sexual organ penetrated her sexual organ, and that he got “off and on” three times. After the man smoked a cigarette he and the prosecutrix dressed, and he drove her back to school; before departing, he warned her “if I said anything to the police or to anyone that I could be sure not to ever rest again, I’d always have to be looking behind my shoulder because he would be there.”

Dr. Arthur R. Howard examined the prosecutrix that afternoon. He found no bruises, scratches or other evidence of bodily trauma, nor did he observe any damage to her clothing. He stated that her vaginal opening was large enough for her to have had intercourse, but that there was no evidence of recurrent intercourse. Dr. Howard found no sperm, the absence of which he testified might be attributable to the prosecutrix having washed herself at school prior to the examination. She testified that she washed the exterior of her vagina, but did not wash internally. On cross-examination, Howard testified that he found no objective scientific evidence that the prose-cutrix had been raped.

On the day following the offense a Mexican-American male was observed driving a gold Chevrolet Camaro near Lubbock High School. A check of the license number of the car revealed that it was registered in the name of appellant, who subsequently was arrested. No gun was recovered.

The prosecutrix was taken to the Lubbock police station on the day of the offense and shown approximately 300 photographs of men, including appellant and his two brothers. She stated that she was unable to identify her assailant. The next day she viewed a police lineup consisting of appellant and four other men. All of the participants in the lineup were required to roll up their sleeves and exhibit any tatoos on their arms and to show their belts and belt buckles. The prosecutrix again stated that she could not identify the man who attacked her. Detective Mike Cooper of the Lubbock Police Department then took the prosecu-trix into his office and asked “You really did recognize him, didn’t you?” The prose-cutrix said that she had recognized her assailant at the lineup but had been scared to identify him. She then identified the appellant.

In cross-examining Cooper, appellant brought out that, according to an offense report filed by Cooper, the prosecutrix on the day of the offense had described her attacker as five feet, eight inches tall with shoulder-length, wavy black hair and a tattoo on his upper left arm. Cooper testified that the prosecutrix told him her assailant had a tattoo on his right arm, and that the offense report should have so stated.

Denise Blackman, a friend of the prosecu-trix, testified that she saw the prosecutrix in a Chevrolet Camaro being driven away from the parking lot of Lubbock High School shortly before 2:00 p. m. on January 15, 1974. The witness testified that she was able to get a look at the driver of the car but did not see him in the courtroom at the trial.

Appellant contends that the court erred in overruling his motion for a directed verdict because the evidence was insufficient to prove appellant’s guilt beyond a reasonable doubt. He first argues that the evidence is insufficient to show penetration. The prosecutrix testified that appellant’s sexual organ penetrated her sexual organ. Her testimony, standing alone, is sufficient evidence of penetration. Watson v. State, 548 S.W.2d 676 (Tex.Cr.App.1977); Harris v. State, 473 S.W.2d 37 (Tex.Cr.App.1971); Faulkner v. State, 390 S.W.2d 754 (Tex.Cr.App.1965). Appellant also argues that if the offense of rape was shown to have been committed, there is no evidence that he was the guilty party. The prosecutrix’ identification of appellant as the man who raped her is sufficient. See Ward v. State, 505 S.W.2d 832 (Tex.Cr.App.1974); Lee v. State, 455 S.W.2d 316 (Tex.Cr.App.1970); Giddings v. State, 438 S.W.2d 805 (Tex.Cr.App.1969).

Appellant asserts that the identification procedures which were used were so unnecessarily suggestive and conducive to irreparable mistaken identification as to taint the prosecutrix’ in-court identification of appellant, and that the court abused its discretion in permitting the in-court identification. The factors to be considered in determining the origin of an in-court identification are as follow: (1) the prior opportunity to observe the alleged criminal act; (2) the existence of any discrepancy between any pre-lineup identification and the defendant’s actual description; (3) any identification of another person prior to the lineup; (4) the identification by picture of the defendant prior to the lineup; (5) failure to identify the defendant on prior occasions; and (6) the lapse of time between the alleged act and the lineup identification. Thompson v. State, 480 S.W.2d 624 (Tex.Cr.App.1972).

The offense occurred outdoors in mid-afternoon, and the rapist sat and smoked a cigarette and talked with the prosecutrix following the act; she had ample opportunity to observe her attacker. The prosecutrix never identified anyone other than appellant. She was shown photos of possible suspects on the day the offense occurred and viewed the lineup the following day, so the time which elapsed between the offense and the prosecutrix’ identification of appellant was negligible. Appellant’s contention is based on discrepancies between the pre-lineup description given by the prosecutrix as reflected in the offense report and the prosecutrix’ failure to identify appellant when she was shown a photo of him and when she initially viewed the lineup.

Specifically, appellant points to the offense report prepared by Cooper which shows that the prosecutrix stated that her attacker was five feet, eight inches tall and had shoulder-length, wavy black hair. It was shown at trial that appellant was over six feet tall and that his hair was collar-length. These discrepancies, when considered with all of the evidence, are relatively minor. Moreover, when the prosecu-trix was cross-examined regarding whether she described the appellant as having shoulder-length or collar-length hair, she stated, “No difference to me, it’s long or short length — .” That the prosecutrix failed to identify a photograph of appellant and failed to identify him when she initially viewed him in the lineup affects only the weight and not the admissibility of her testimony. Clemons v. State, 505 S.W.2d 582 (Tex.Cr.App.1974); Cunningham v. State, 500 S.W.2d 820 (Tex.Cr.App.1973).

In support of his contention that the lineup was conducive to irreparable mistaken identification appellant points to the testimony of Reyes Chavez Gonzales, a jail inmate who participated in the lineup. Gonzales testified that during the lineup he heard a policeman say that “the girl couldn’t identify Gaudalupe” but “the father of the girl was trying to convince her to press charges against him.” Appellant testified at the hearing on the motion to suppress that he had been in a lineup for an armed robbery prior to the lineup in the instant case. Appellant said that following the first lineup, at which he was not identified, Cooper told him, “Well, it looks like you got away again. I’m still not sure, I’m going to see if I can file a rape charge on you.” Cooper denied making this statement, and both Cooper and the prosecutrix denied that her father influenced her identification of appellant. Appellant cannot successfully complain on appeal that contested fact issues were resolved against him.

Appellant also attacks the lineup procedure because the appellant was several inches taller than the other participants in the lineup. All of the participants were Mexican-American males with dark hair. Three of them, including appellant, had mustaches; at least four, including appellant, had tatoos on their arms. That appellant was taller than the others in the lineup does not, by itself, render the lineup imper-missibly suggestive. Brown v. State, 513 S.W.2d 35 (Tex.Cr.App.1974). Moreover, if the prosecutrix did describe her assailant as being five feet, eight inches tall, as Cooper’s offense report reflects, then appellant was not prejudiced by the disparity in height. There was no suggestion that the prosecu-trix’ attention was in any way directed to appellant. We hold that the totality of the circumstances in the instant case was not “so unnecessarily suggestive and conducive to irreparable mistaken identification” that appellant was denied due process under Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

Appellant’s contention that the court erred in failing to file findings of fact and conclusions of law regarding the lineup confrontation and the subsequent in-court identification is without merit. The court stated at the hearing on the motion to suppress as follows:

“The Court finds, based upon all of the testimony presented here at this hearing on the Defendant’s motion to suppress evidence, that the identification made by the witness, D_ F_, in this matter is not tainted nor impermissibly suggestive by photographic procedures nor by lineup procedures and that such identification of the Defendant charged herein, Guadalupe Garcia, as made by the witness, D_F_, is material evidence in this case, and it does not suggest any chilling effect upon or against the Constitutional guarantees of the Defendant, Guadalupe Garcia, and it does not give rise to a very substantial likelihood of irreparable misidentification of the Defendant.”

While the better practice may be to enter written findings of fact, the failure to do so does not constitute reversible error where the record contains, as it does in the case at bar, sufficient evidence for the court to conclude that the in-court identification was not tainted by suggestiveness but rather was the result of the witness’ recollection of the accused. Pilcher v. State, 503 S.W.2d 547 (Tex.Cr.App.1974); Williams v. State, 477 S.W.2d 885 (Tex.Cr.App.1972).

Appellant also contends that the court erred in excluding evidence at the punishment stage of the trial. Appellant perfected a bill of exception which shows that he would have testified that he had a younger brother who was five feet, eight inches tall with shoulder-length hair and tatoos and that this brother had been driving appellant’s car and had access to it on the day of the offense. It is appellant’s position that this evidence was properly offered to mitigate punishment in that it showed appellant’s concern for his brother’s welfare and his desire to shield him from criminal charges. We do not agree with this imaginative proposition. The excluded testimony was not relevant at the hearing on punishment and was properly excluded.

Appellant’s final contention is that the court erred in overruling appellant’s motion for a new trial based on the jury having received evidence from an outside source. Appellant moved for a mistrial and for a new trial based on the testimony of an attorney who testified that when he walked by the jury room he saw three jurors reading editions of the Lubbock Avalanche-Journal which contained an article on the front page concerning appellant’s trial. The article, which is included in the record before us, contains no information that was not adduced in the jury’s presence at trial. It was not shown that any juror read the article in question or that the article was discussed during the jury’s deliberations. Appellant has not demonstrated that he was prejudiced in any way. See Brown v. State, 516 S.W.2d 145 (Tex.Cr.App.1974); Shelton v. State, 510 S.W.2d 936 (Tex.Cr.App.1974); Broussard v. State, 505 S.W.2d 282 (Tex.Cr.App.1974). The ground of error is overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: ODOM, Judge. DALLY, Judge,

license: Public Domain

text:
    Renaldo CLOPTON, Appellant, v. The STATE of Texas, Appellee.
    No. 53604.
    Court of Criminal Appeals of Texas, En Banc.
    April 12, 1978.
   OPINION

ODOM, Judge.

This is an appeal from a conviction on a plea of guilty to the court for attempted burglary of a vehicle. V.T.C.A., Penal Code Secs. 30.04 and 15.01. Punishment was assessed at 90 days in the county jail and a $150.00 fine, and appellant was placed on misdemeanor probation. Art. 42.13, V.A.C. C.P.

The record on appeal consists only of a transcript of documents on file in the proceeding; there is no transcript of the court reporter’s notes, nor is there an agreed statement or bill of exception. Art. 40.-09(6), (14), V.A.C.C.P. There is no indication that appellant is indigent, and no briefs have been filed. We find no unassigned error that should be considered in the interest of justice.

We observe that a motion for new trial was filed on January 26, 1976, and was heard and overruled by the court on that date. Notice of appeal was then given. Although this was over ten days after conviction, the trial court’s consideration of the motion will be accorded a presumption of regularity and this Court will not require a showing of good cause in the record on appeal to support an extension of time for filing or amending a motion for new trial under Art. 40.05, V.A.C.C.P. Contrast this rule with (1) the record must show good cause for late notice of appeal, Robinson v. State, Tex.Cr.App., 505 S.W.2d 298; Morton v. State, Tex.Cr.App., 502 S.W.2d 121; Perez v. State, Tex.Cr.App., 496 S.W.2d 627; (2) the trial court is without power to extend time for determining a motion for new trial, Morton v. State, supra; St. Jules v. State, Tex.Cr.App., 438 S.W.2d 568; and (3) good cause for an extension of time to file or amend a motion for new trial must appear in the record to support any challenge to a finding of no good cause, Defore v. State, Tex.Cr.App., 460 S.W.2d 128.

Giving the trial court’s action the presumption of regularity due it, we find we do have jurisdiction of the cause.

The judgment is affirmed.

DALLY, Judge,

dissenting.

The majority opinion will frustrate and delay justice, allow a back-log of cases to accumulate in the trial courts, and permit interminable delay of appeals, and it fails to fully discuss the pertinent statute to justify the result reached. This appeal should be dismissed because the notice of appeal was not timely.

Art. 40.05, V.A.C.C.P., in pertinent part, provides:

“A motion for new trial shall be filed within ten days after conviction as evidenced by the verdict of the jury, and may be amended by leave of the court at any time before it is acted on within twenty days after it is filed. Such motion shall be presented to the court within ten days after the filing of the original or amended motion, and shall be determined by the court within twenty days after the filing of the original or amended motion, but for good cause shown the time for filing or amending may be extended by the court, but shall not delay the filing of the record on appeal.” (Emphasis added.)

The order granting probation was entered on November 7, 1975, and a motion for new trial was filed on the same day. This motion for new trial was not determined within twenty days after it was filed. Since November 27th was a legal holiday, the motion could have been determined on or before November 28, 1975. See Barbee v. State, 432 S.W.2d 78 (Tex.Cr.App.1968). When it was not determined within twenty days, the motion for new trial was overruled by operation of law, and the trial court had no authority to extend the time for determining the motion for new trial beyond twenty days. Art. 40.05, V.A.C.C.P. See, e. g., Steward v. State, 422 S.W.2d 733 (Tex.Cr.App.1969); St. Jules v. State, 438 S.W.2d 568 (Tex.Cr.App.1969); Morton v. State, 502 S.W.2d 121 (Tex.Cr.App.1973); Boykin v. State, 516 S.W.2d 946 (Tex.Cr.App.1974); Resendez v. State, 523 S.W.2d 700 (Tex.Cr.App.1975); cf. Grimes v. State, 171 Tex.Cr.R. 298, 349 S.W.2d 598 (1961).

Art. 40.05, V.A.C.C.P., permits the court for good cause to extend the time for filing or amending the motion for new trial. However, the good cause should be apparent in the record, and the trial court’s finding of good cause should be subject to review by this Court. In this case there was no effort to show that there was good cause for extending the time for filing a motion for new trial.

Art. 44.08(b), V.A.C.C.P., provides that in cases where probation is granted notice of appeal shall be given or filed within ten days after the overruling of the motion or amended motion for new trial, if a motion or amended motion for new trial is filed. McIntosh v. State, 534 S.W.2d 143 (Tex.Cr.App.1976). Since notice of appeal was not given until January 26, 1976, long after the motion for new trial was overruled by operation of law on November 28, 1975, notice of appeal was not timely.

Art. 44.08, V.A.C.C.P., provides that the trial court may permit, for good cause, the giving of notice of appeal after the expiration of the statutory period of time. However, the good cause must be apparent in the record, and the trial court’s finding of good cause is subject to review by this Court. See Menasco v. State, 503 S.W.2d 273 (Tex.Cr.App.1973); Morton v. State, supra. The trial court in this case was not requested to and did not allow a delay in the giving of notice of appeal.

Attempts to extend the time for determining the motion for new trial which appear in the record are without legal effect. On November 26,1975, the appellant filed a second motion for new trial which was merely a duplicate of the printed form motion filed on November 7th. This motion was filed more than ten days after probation was granted — too late to be an original motion for new trial. Art. 40.05, Y.A.C. C.P.; Morton v. State, supra. This second motion was not denominated an amended motion for new trial, and of more importance, it did not show, and the record does not otherwise show, that it was filed with leave of court. There is nothing to show that it was even called to the court’s attention until many days later. Since the second motion was not filed with leave of court as is required by Art. 40.05, V.A.C.C.P., it was a nullity and did not affect the overruling of the first motion by operation of law on November 28, 1975.

Since the motion for new trial had already been overruled by operation of law, the court was without authority on December 24,1975, to extend the time for filing a motion for new trial, as the court purported to do on that day. Also, the court’s order denying the motion for new trial on January 26, 1976, was without legal effect since the motion for new trial had already been overruled by operation of law on November 28, 1975.

The majority blandly says, “. . . the trial court’s consideration of the motion will be accorded a presumption of regularity and this Court will not require a showing of good cause in the record on appeal to support an extension of time for filing or amending a motion for new trial . . . ” Art. 40.05, V.A.C.C.P., provides that for good cause shown the time for filing or amending a motion for new trial may be extended by the court but shall not delay the filing of the record on appeal. I see no discussion in the majority opinion concerning the obvious delay in the filing of the record on appeal in this case and the greater delay that will occur in future cases. Under the majority opinion the amended motion, rather than being filed January 26, 1976, could have been filed January 26, 1977, January 26, 1978, or at any future time without a showing of good cause as required by the statute and with the obvious delay in the filing of a record on appeal contrary to the provisions of the statute. This appellant filed no transcription of the court reporter’s notes, and did not even file an appellate brief. The appeal was for delay only.

The appeal should be dismissed because the appellant failed to give timely notice of appeal.

DOUGLAS, ROBERTS and VOLLERS, JJ., join in this dissent.


author: W. C. DAVIS, Judge.

text:
    Donald Grady HOWELL, Appellant, v. The STATE of Texas, Appellee.
    No. 54048.
    Court of Criminal Appeals of Texas, Panel 1.
    April 12, 1978.

      Charles W. Tessmer and Ronald L. Gor-anson, Dallas, on appeal only, for appellant.
    Tom O’Connell, Dist. Atty. and Verla Sue Holland, Asst. Dist. Atty., McKinney, for the State.

      Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

The appellant was indicted for the offense of aggravated robbery, V.T.C.A., Penal Code, Sec. 29.03(a)(2), committed on February 15, 1975. He was represented by retained counsel at trial. Trial was held before a jury in the 199th District Court on January 26, 1976. He was found guilty of the primary offense, pled true to the enhancement paragraph, and punishment was assessed by the jury at fifteen years imprisonment in the Texas Department of Corrections, pursuant to V.T.C.A., Penal Code, Sec. 12.42(c). Appellant’s motion for new trial was denied and he was sentenced on February 6, 1976, at which time notice of appeal was given. We affirm.

Nine grounds of error are presented; however, appellant has withdrawn ground of error one.

In ground of error two, appellant contends that the language in the court’s charge, that appellant had “set up” the defense of alibi, was a comment on the weight of the evidence. No objection was made at trial and it is now raised as fundamental error.

The complained-of portion of the charge read:

“A defense set up by the defendant in this case is what is known as an ‘alibi’ . ” (Emphasis added)

It is his position that, as used in the charge, the phrase “set up” implies that the court believed that the defense of alibi raised by appellant was manufactured and without basis in fact.

Although responding to a different argument, this Court in Williams v. State, 155 Tex.Cr.R. 370, 235 S.W.2d 166 (1950), approved the same wording in the charge, with the further observation:

We fail to see how the jury could have been misled, or how they could have failed to have comprehended the law on the subject of alibi.”

Reviewing the charge as a whole, appellant’s rights were adequately protected, Art. 36.19, Vernon’s Ann.C.C.P.; Pittman v. State, 554 S.W.2d 190 (Tex.Cr.App.1977). Absent an objection, nothing is presented for review. Rummel v. State, 509 S.W.2d 630 (Tex.Cr.App.1974).

Ground of error two is overruled.

In ground of error three, appellant urges that the trial court committed fundamental error in failing to limit evidence of prior convictions for impeachment purposes only. No such limiting charge was requested and no objection to the admission of such was made. Nothing is presented for review. Arts. 36.14, 36.15, 36.19, 38.29, Vernon’s Ann.C.C.P.; Smith v. State, 455 S.W.2d 282 (Tex.Cr.App.1970); Paul v. State, 544 S.W.2d 668 (Tex.Cr.App.1976).

Ground of error three is overruled.

In ground of error four, the appellant argues that the trial court committed fundamental error by submitting an abstract charge on the law of alibi. There was no trial objection.

The last sentence of the court’s charge on alibi clearly instructed the jury to apply the law to the facts:

“. . . Now, if you have a reasonable doubt as to the presence of the defendant at the place where the offense was committed, if an offense was committed, at the time of the commission thereof, then you will find the defendant not guilty.’”

Appellant’s only suggestions to alleviate the “abstraction” is to add his name in apposition to “defendant” and to include the date. These suggested additions were contained in the charge as given, when considered as a whole. Mathis v. State, 504 S.W.2d 448 (Tex.Cr.App.1974). Absent an objection, nothing is presented for review.

Ground of error four is overruled.

In ground of error five, appellant contends that the jury charge at the punishment stage “was so abstract, indefinite and non-directive in nature, that, even though the jury apparently gave him the minimum sentence available, it deprived him of a fair trial.” There was no trial objection to the court’s charge.

The trial court’s punishment charge consisted of two paragraphs. The first paragraph recited that the jury had convicted the appellant of aggravated robbery; the second, the range of punishment pursuant to V.T.C.A., Penal Code, Sec. 12.42(c). The verdict forms gave the jury two choices; life or a term of years. The jury assessed punishment at fifteen years.

Here there was no issue as to the validity of the enhancement paragraph. Appellant pled true, entered into a written stipulation that he was the same named person previously convicted as alleged, and made no objection to the introduction of the convictions. His rights were adequately protected by the charge. Error, if any, was waived by his failure to request the desired instructions and failure to object to the charge as given. Arts. 36.14, 36.15, 36.19, Vernon’s Ann.C.C.P.; Peterson v. State, 508 S.W.2d 844 (Tex.Cr.App.1974).

Ground of error five is overruled.

Closely related to ground of error five is ground of error nine. It is appellant’s position that fundamental error was committed by the trial court in accepting a verdict non-responsive to the allegations in the indictment, as it does not indicate whether they found the enhancement paragraph to be true, or whether the enhancing conviction formed a basis for the conviction. There was no objection at trial.

As said earlier, the validity of the enhancement allegation was not in issue. There was no need to submit its validity for the jury’s consideration. Arts. 37.01, 37.-07(l)(a), and 37.07(3)(b), Vernon’s Ann.C. C.P. The verdict, when read in connection with the indictment and the court’s charge, is responsive. Pennington v. State, 364 S.W.2d 376 (Tex.Cr.App.1962).

We are, however, sympathetic to appellant’s claim that, although he was apparently punished in accordance with the enhancement statute, he would be unable to prove it in a later proceeding. Therefore, the judgment and sentence will be reformed to reflect that his punishment was enhanced pursuant to V.T.C.A., Penal Code, See. 12.42(c) with the use of the prior felony conviction No. C-70-4148-LI for passing a worthless check over $50 in Criminal District Court No. 2 of Dallas County, April 14, 1971. Art. 44.24, Vernon’s Ann.C.C.P.; Rumph v. State, 548 S.W.2d 895 (Tex.Cr.App.1977).

Ground of error nine is overruled.

In ground of error six, appellant argues that the enhancement paragraph of the indictment is fundamentally defective, as it is vague, indefinite, and incomprehensible. There was no trial objection.

After alleging the primary offense, the indictment alleges a prior conviction for passing a worthless check, giving the offense, the date of conviction, the number of the case, and the court in which the conviction was rendered. This is followed by the introductory portion of what, presumably, would be the second paragraph of an habitual indictment. V.T.C.A., Penal Code, Sec. 12.42(d). The appellant is named; however, no other offense is alleged. The indictment concludes regularly.

He concedes that the error is probably typographical but claims that “since the language used- leaves the meaning of the indictment unclear, error is shown.” It is difficult to see how he could have been misled. Both the primary offense and the prior conviction were set forth in plain and intelligible language. Inasmuch as the trial judge admonished the appellant of the consequences of his plea, whereupon the enhancement paragraph was re-read and he persisted in his plea of true before the jury, how could it be said he was not able to know what he was called upon to defend? Art. 21.11, Vernon’s Ann.C.C.P. There was no pretrial motion to quash the indictment, nor motion to strike the enhancement paragraph at trial. Nothing is presented for review. Art. 21.19, Vernon’s Ann.C.C.P; Jiminez v. State, 552 S.W.2d 469 (Tex.Cr.App.1977); Johnson v. State, 456 S.W.2d 917 (Tex.Cr.App.1970).

Ground of error six is overruled.

In ground of error seven, the appellant urges that the trial court committed fundamental error by permitting the State to mislead the jury as to the range of punishment. There was no trial objection.

The district attorney properly voir dired the jury panel as to the range of punishment for first-degree felony. V.T.C.A., Penal Code, Sec. 12.32. In questioning the prospective jurors, he carefully pointed out that he was not attempting to influence their judgment of the case, but simply inquiring if they could consider the full range of punishment in the proper case.

Appellant argues that as there was a prior conviction alleged, the district attorney should have also voir dired the panel as to the possible minimum penalty of fifteen years imprisonment. V.T.C.A., Penal Code, Sec. 12.42(c). He states that, “It would appear evident that it is possible to inquire of the prospective jurors as to whether or not they could consider a minimum range of punishment as low as five years, or as high as fifteen years under the appropriate facts, and not inform the panel of prior convictions.” No authority is cited by appellant requiring such questioning and we have found none. No objection was made and there is no showing of harm.

Ground of error seven is overruled.

In ground of error eight, appellant contends that he was denied effective assistance of counsel. He bases this contention upon his retained counsel’s failure to object to matters previously considered, and additionally, that his trial counsel allowed him to plead true to an impeaching conviction which he did not remember having committed. This contention is unsupported by the record.

Appellant’s constitutional right to counsel, appointed or retained, does not mean errorless counsel, and the competency or adequacy of his representation is not to be judged by hindsight. That other counsel might have tried the case differently does not show inadequate representation, and that adequacy will be viewed in light of the totality of the representation. Effectiveness of retained counsel must be gauged by whether or not there was willful conduct without a defendant’s knowledge which amounts to a breach of legal duty. Williams v. State, 549 S.W.2d 183 (Tex.Cr.App.1977); Hunnicutt v. State, 531 S.W.24 618 (Tex.Cr.App.1976).

Retained trial counsel competently conducted voir dire of the jury panel, cross-examined the State’s witnesses, and presented appellant’s defense. Considering that the State sought a life sentence and that appellant received the minimum punishment for an enhanced first-degree felony conviction after being positively identified by two witnesses, it seems especially apparent that not only did appellant’s counsel breach no legal duty owed, but also rendered him reasonable effective assistance of counsel. Harrison v. State, 552 S.W.2d 151 (Tex.Cr.App.1977); Ex parte Gallegos, 511 S.W.2d 510 (Tex.Cr.App.1974).

Ground of error eight is overruled.

Ground of error nine has been previously overruled.

The judgment as reformed is affirmed.


author: ODOM, Judge.

text:
    Noel H. SAUCIER, Appellant, v. The STATE of Texas, Appellee.
    No. 54319.
    Court of Criminal Appeals of Texas, Panel No. 3.
    April 12, 1978.
    Gregory L. Hennig, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Terry G. Wilson, Asst. Dist. Attys., Houston, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery. Punishment, enhanced under V.T.C.A., Penal Code Sec. 12.-42(d), was fixed at life.

In his sixth ground of error appellant contends the trial court committed reversible error when it approved the record without including the final arguments of counsel at the guilt stage of the trial. Elsewhere in his brief appellant complains of the State’s jury argument.

On May 25, 1976, notice of completion of the record was mailed to counsel. Counsel filed his objections to the record on June 9, listing several items that were not included. On July 16 the judge sustained appellant’s objections and .ordered the additions sought by those objections “be granted in full.” The record on appeal next contains many of the matters requested in appellant’s objection and ordered included by the trial court. The jury argument, however, was not added to the record even though it was listed in the objection sustained by the trial court. On August 24 the record was approved without the jury argument.

In view of appellant’s objection to the record, the trial court’s order sustaining that objection and ordering inclusion of the jury argument, and the failure of the record to include such argument or to reflect why it was not included, we will abate this appeal. The trial court either shall have the record of the jury argument prepared and sent to this Court by the clerk or shall have prepared by the clerk or the court a certificate stating why such material was not added to the appellate record in compliance with the trial court’s order of July 16. Such record or certificate shall be sent to this Court as a supplemental record in this cause.

The appeal is abated.


author: DOUGLAS, Judge. PHILLIPS, Judge,

text:
    Tony P. KIDD, Appellant, v. The STATE of Texas, Appellee.
    No. 55015.
    Court of Criminal Appeals of Texas, En Banc.
    April 12, 1978.
    Kenneth L. Sanders, Houston, for appellant.
   OPINION

DOUGLAS, Judge.

The convictions are on three counts of aggravated robbery upon pleas of guilty before the court. Punishment was assessed in three counts at fifteen years and one day. Earlier, the appeal was dismissed but it has been reinstated.

We agree with the brief filed by court-appointed counsel that the appeal is frivolous and affirm.

In view of the dissent which would reverse the conviction upon what it determines as unassigned error in the admonishment of appellant before he entered his pleas of guilty, this ground will be discussed. Before accepting the pleas of guilty, the court ascertained that appellant knew the range of punishment for the offense of aggravated robbery. Without setting out the questions by the court and the answers of appellant, we hold that the court ascertained that the pleas of guilty were voluntary.

The dissent would reverse these convictions because the admonishment does not recite that part of Article 26.13, Section (a)(2), V.A.C.C.P., which reads as follows:

“(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
“(2) the fact that the recommendation of the prosecuting attorney as to punishment is not binding on the court. . . . ”

In the present case the prosecutor recommended the punishment actually assessed by the court. There is no showing that a plea bargain existed. If there had been a plea bargain, no error would be shown because Article 26.13, Section (c), as amended Acts 1975, 64th Leg., p. 909, ch. 341, then in effect, provided as follows:

“(c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.”

A substantial compliance with the statute has been shown. There has been no showing appellant has been harmed or misled in any way.

No error has been shown. The judgments are affirmed.

ONION, P. J., concurs on the ground that there was no plea bargain.

PHILLIPS, Judge,

dissenting.

The majority affirms appellant’s conviction, notwithstanding the glaring omission of the trial court in its utter failure to admonish appellant as mandated by Article 26.13, V.A.C.C.P. Without explaining how it was accomplished, the majority concludes that substantial compliance “has been shown.” We have searched the trial court’s colloquy with appellant and find absolutely no reference by the trial court to its discretion to punish appellant without regard to any recommendation the prosecutor may put forth. The trial court’s admonishment is set forth here for posterity.

“THE COURT: . . . Now, are you pleading guilty to each of these counts because you are guilty and are you satisfied in each count that you are guilty of those offenses?
“DEFENDANT: Yes sir.
“THE COURT: No one has persuaded you to enter these pleas because of any persuasion of fear, promises, threats, delusive hope of pardon, or because you think you will get off lighter or anything of that nature?
“DEFENDANT: No sir.
“THE COURT: Do you understand that the offense of Aggravated Robbery charged in each of these counts is punishable by confinement in the Texas Department of Corrections for any term of years, not less than five (5) nor more than ninety-nine (99) or by confinement for life?
“DEFENDANT: Yes sir.
“THE COURT: Have you ever been treated psychiatrically or been a patient in a mental hospital for a mental illness?
“DEFENDANT: No sir.
“THE COURT: You have filed in each of these counts a stipulation of evidence and a waiver of trial by jury, do you understand that by doing this you are giving up two (2) constitutional rights, first, the right to be confronted by the witnesses against you and for them to be cross examined by your attorney; and secondly, the right to participate in the selection of twelve (12) citizens to try you and for you to place the State upon their proof in their case against you; do you understand that?
“DEFENDANT: Yes sir.
“THE COURT: And that is what you wish to do?
“DEFENDANT: Yes sir. ■
“THE COURT: Are you satisfied counsel that this Defendant understands what he is doing and appreciates the nature of these proceedings?
“MR. SANDERS [appellant’s attorney]: Yes, I am, Your Honor.
“THE COURT: All right, I will accept your pleas.”

The record reflects that the prosecutor recommended the punishment be assessed at 15 years and 1 day, which recommendation was followed. '

Article 26.13, V.A.C.C.P., provides, in part:

“(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of: . (2) the fact that any recommendation of the prosecuting attorney as to punishment is not binding on the court.”

It is well established that compliance with this statute is mandatory. Loudd v. State, Tex.Cr.App., 474 S.W.2d 200; Vasquez v. State, Tex.Cr.App., 477 S.W.2d 629; Ex parte Jordon, Tex.Cr.App., 490 S.W.2d 585. If the trial court fails to admonish the defendant as to the applicable range of punishment, such error is reversible even though the punishment assessed was within the proper range prescribed by law. Walker v. State, Tex.Cr.App., 524 S.W.2d 712; Martinez v. State, Tex.Cr.App., 494 S.W.2d 545; Loudd v. State, supra. Similarly, if the trial court fails to admonish the defendant that the court is not bound to follow the State’s recommendation on punishment, such error is also reversible even though that recommendation is later followed.

The reasoning for such a result is obvious. Admonishments are required in order to insure that a defendant is entering his plea of guilty voluntarily. As noted by the United States Supreme Court in Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927):

“A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.”

And, as stated in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969):

“What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.”

These cases recognize the importance of insuring that a defendant does not enter a plea of guilty without a full understanding of the charges against him and the possible consequences of his plea. See Machibroda v. U. S., 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Brady v. U. S., 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976); see generally 21 Am.Jur.2d, Criminal Law, Sec. 485. In this regard, the defendant’s plea cannot be entered “voluntarily” absent knowledge that any promise or plea bargain extended by the State is not binding on the trial court. Failure to admonish a defendant of this possible “consequence” deprives his plea of the character of a voluntary act.

Article 26.13, V.A.C.C.P., requires the trial court to either give the exact admonishment set out in the statute or some admonishment which conveys the same information. The fact that whatever recommendation is made is accepted by the trial court does not cure the initial information gap created by the trial court’s total omission. Neither does it constitute “substantial” or any degree of compliance. I must therefore dissent from the majority’s austere reasoning and disposition.

ROBERTS, J., joins in this dissent.

      . Appellant’s court-appointed counsel has filed a brief in which he has concluded that the appeal is wholly frivolous and without merit. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Gainous v. State, Tex.Cr.App., 436 S.W.2d 137; Currie v. State, Tex.Cr.App., 516 S.W.2d 684. A careful review of the record, however, presents one question we will consider in the interest of justice. Article 40.09(13), V.A.C.C.P. Specifically, we address ourselves to the question of whether the appellant was properly admonished of the consequences of his plea pursuant to Article 26.13, V.A.C.C.P. Appellant entered his plea on May 20, 1976, prior to the amendment of Article 26.13. Such article was amended by Acts 1977, 65th Leg., Ch. 280, P. 784, Sec. 1, effective August 29, 1977.


text:
    Frankie Gene CRISS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 57320-57323.
    Court of Criminal Appeals of Texas, Panel No. 2.
    April 12, 1978.
    W. John Allison, Jr., on appeal only, Dallas, for appellant.
    Henry Wade, Dist. Atty. and Maridell Templeton, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ODOM, Judge.

These are appeals from orders revoking probation.

Appellant, at the age of 16 years, was charged with acts constituting criminal offenses, and on November 15,1976, the juvenile court entered an order waiving jurisdiction and transferring appellant to the criminal courts for prosecution. V.T.C.A. Family Code, Sec. 54.02. On November 23 appellant and his attorney waived his right to an examining trial. Sec. 54.02(h), supra. On December 22 he waived his right to prosecution by indictment (Art. 1.141, V.A.C.C. P.), waived his right to trial by jury, agreed to stipulations of evidence (Art. 1.15, V.A.C. C.P.), judicially confessed to the four offenses charged against him, and pled guilty to the informations charging unauthorized use of a motor vehicle, burglary of a building, and two burglaries of habitations. He was found guilty by the court in all four cases, assessed ten years in each, and placed on adult probation. Art. 42.12, V.A.C.C.P.

One condition of appellant’s probation was that he commit no offense against the laws. On May 4, 1977, the State filed motions to revoke probation alleging appellant committed the offense of retaliation (V.T. C.A., Penal Code Sec. 36.06) by intentionally and knowingly threatening to harm Annie Farrell by pointing a gun at her because she was a witness for the State in a case in which his girlfriend was charged with burglary. After a hearing on August 1, 1977, the court revoked the probation and pronounced sentence in each of the four cases.

It is appellant’s single complaint on appeal that the original convictions are void because the criminal accusations were insufficient to invoke the jurisdiction of the trial court. It is not the language of the accusations that appellant challenges, but rather, the failure of the trial court to conduct an examining trial after the transfer from the juvenile court and prior to the filing of the informations. Sec. 54.02(h), supra. Citing Ex parte Menefee, Tex.Cr.App., 561 S.W.2d 822, appellant argues that an examining trial is an essential jurisdictional step in the process of bringing a juvenile to trial as an adult.

The State in reply distinguishes Menefee, supra, and asserts that the juvenile’s right to an examining trial may be waived in accordance with the provisions of V.T.C.A. Family Code, Sec. 51.09(a), and that such a waiver was executed here.

Sec. 51.09(a), supra, provides:

“Unless a contrary intent clearly appears elsewhere in this title, any right granted to a child by this title or by the constitution or laws of this state or the United States may be waived in proceedings under this title if:
(1) the waiver is made by the child and the attorney for the child;
(2) the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it;
(3) the waiver is voluntary; and
(4) the waiver is made in writing or in. court proceedings that are recorded.”

In the record of each cause appears this waiver together with the order of the criminal district court to which appellant had been transferred:

WAIVER OF EXAMINING TRIAL
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES FRANKIE GENE CRISS, the above named defendant in person and with his attorney, and respectfully requests the court to allow him to waive his right to an examining trial before this court as to whether said Defendant should be certified to the Dallas County Grand Jury for further proceedings herein in accordance with the applicable statutes. Said Defendant having already been certified to this Court by the Judge of the Juvenile Court of Dallas County, Texas, and fully aware that he is entitled to an examining trial by this Court as a matter of law and that in an examining trial this Judge has authority to remand said Defendant to the jurisdiction of the Juvenile Court or that waiving this right he might be indicted by said Grand Jury to stand trial as an adult herein, now waives his rights to an examining trial and agrees that the Dallas County Grand Jury may hear and consider this case as though said Defendant were 17 years of age as of the date of the alleged offenses.

The waiver was signed by appellant and his attorney. The trial judge signed the following order:

ORDER
The above Waiver having been made and filed by said Defendant and his attorney in open Court, and the Court being of the opinion that said Waiver is voluntarily and intelligently made, it is the Order of that [sic] Court that all papers and instruments contained in this cause be forwarded to the Dallas County Grand Jury for whatever action that body may deem proper in this matter.

The issue in Ex parte Menefee, supra, was whether “an indictment returned against a juvenile after a discretionary transfer from juvenile court [is] void for the failure of the district court, to which the transfer was made, to conduct an examining trial prior to the return of the indictment. This Court held, “that the indictment, having been returned prior to an examining trial, is void, . . . that the indictment should be set aside, and the appellant accorded an examining trial.”

The examining trial under discussion is more than the general examining trial provided for in Article 16.01, V.A.C.C.P., which may be waived, and the right to which is terminated by the return of an indictment. See authorities cited in Menefee, supra. The examining trial here discussed is mandated by the Family Code in Sec. 54.02(h):

“If the juvenile court waives jurisdiction, it shall state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court, and transfer the child to the appropriate court for criminal proceedings. On transfer of the child for criminal proceedings, he shall be- dealt with as an adult and in accordance with the Texas Code of Criminal Procedure, 1965. The transfer of custody is an arrest. The examining trial shall be conducted by the court to which the case was transferred, which may remand the child to the jurisdiction of the juvenile court.”

In comparing the general examining trial with the rights under this provision, the Court in Menefee wrote:

“There is, however, an additional feature to an examining trial for a juvenile who has been certified to district court for criminal proceedings. Said Sec. 54.-02(h) provides that after such examining trial the court may remand the juvenile to juvenile court, thus terminating criminal proceedings against the juvenile. While the same subsection (h) provides that the juvenile shall be dealt with as an adult, the district court in an examining trial for an adult has no authority to remand an adult to juvenile court. Thus, a juvenile in such situation has an additional right that other ‘adults’ do not have. It is a valuable right, for it furnishes another opportunity to have the criminal proceedings against the juvenile terminated and the jurisdiction of the juvenile court resumed.”

The issue here reduces to the question of whether the examining trial under Sec. 54.-02(h), supra, is a mandatory jurisdictional step in the process for invoking the court’s power to try a juvenile as an adult or whether Sec. 54.02(h) creates a right that the accused may waive in accordance with Sec. 51.09(a), supra.

Although the Court in Menefee stated that an indictment returned prior to the examining trial is void, in that case there was neither an examining trial nor a waiver of examining trial in compliance with Sec. 51.09(a), supra. Furthermore, Menefee also stated, as quoted above, that the Sec. 54.-02(h) examining trial provided an additional and valuable right for the juvenile certified for criminal prosecution as an adult. When understood as a right created by Sec. 54.-02(h), supra, the examining trial falls within the express terms of the Sec. 51.09(a) waiver provision.

In King v. State, Tex.Cr.App., 473 S.W.2d 43, the Court addressed the issue of whether an indictment is jurisdictional for prosecution of a felony or is a right for the benefit of the accused that may be waived under Article 1.141, V.A.C.C.P. After careful consideration of the historical origins of the practice and the purposes to be served by the indictment, it was held the use of an indictment was not jurisdictional. By compliance with the statutory procedure and substitution of the alternative accusatory pleading provided by Art. 1.141, supra, the right to prosecution by indictment was held subject to waiver. Certainly the See. 54.-02(h) examining trial which was held in Menefee to be prerequisite to indictment is no more jurisdictional than the indictment itself. Just as the right to indictment may be waived by affirmative act in conformity with the terms of Art. 1.141, supra, we hold the rights secured by the examining trial under Sec. 54.02(h), supra, may be waived by affirmative act in conformity with the terms of Sec. 51.09(a), supra.

The records in the cases before us reflect waivers of the right to an examining trial in writing, signed by appellant and his counsel, reciting appellant’s awareness of both the nature and protections afforded by the right and the consequences of his waiver of it. Each waiver is accompanied by the trial court’s order finding the waiver to be voluntarily and intelligently made, and nothing in the record contradicts that finding. Indeed, appellant does not challenge the sufficiency of the waivers; his challenge is to the permissibility of any waiver whatsoever. We hold the right' may be waived and find the waivers here are in full compliance with the statutory standards. Accordingly, we hold the trial court did have jurisdiction of appellant and his cases when it received appellant’s guilty pleas and placed him on probation. Appellant’s contention in each case is overruled.

The judgments are affirmed.


author: ROBERTS, Judge.

text:
    Freddie Lee EASON, Appellant, v. The STATE of Texas, Appellee.
    No. 57989.
    Court of Criminal Appeals of Texas, Panel No. 3.
    April 12, 1978.

      Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

ROBERTS, Judge.

Appellant was convicted by a jury of the misdemeanor of driving while intoxicated. The court assessed punishment at 90 days in jail and a $500.00 fine, probated for 12 months.

The record is before us without a transcription of the court reporter’s notes or bills of exception. Although it appears that appellant is represented by retained counsel, no brief was filed in the trial court in appellant’s behalf pursuant to Art. 40.09(9), Vernon’s Ann.C.C.P., and none has been filed here. There is no claim of indigency. Nevertheless, we find in the record unassigned error which should be reviewed in the interest of justice under Art. 40.09(13), Vernon’s Ann.C.C.P.

The docket sheet reflects that this case was set for jury trial at 9:00 a. m. on February 14, 1977. On that date the State appeared and announced ready. The appellant also appeared, but appellant’s attorney was absent. The trial judge then recessed the jury panel until 2 o’clock that afternoon. When the court reconvened that afternoon, appellant’s counsel was still absent, and the trial judge again recessed the jury panel until 9 o’clock the next morning. At the appointed hour on February 15, 1977, appellant’s attorney again failed to appear. The trial judge attempted to reach counsel by telephone, but received no answer. At 9:40 a. m. the judge instructed the jury panel regarding reasonable doubt, the burden of proof, that the information was no evidence of guilt, the presumption of innocence, and the right of the appellant to remain silent. Thereafter, appellant advised the court that he could not proceed without his attorney present. Nevertheless, the court ordered the voir dire examination of the jury panel to proceed. State’s counsel then voir dired the jury; however, the appellant did not do so. After both sides made their peremptory challenges, the jury was empaneled and sworn. The court then recessed the jury until 12:30 that afternoon in order to allow more time for appellant’s counsel to be present. At 12:45 p. m. appellant’s counsel finally arrived and moved to dismiss the jury. The motion was denied. The trial then proceeded in the presence of appellant’s , counsel, appellant was convicted, and this appeal followed.

We find it necessary to observe that the conduct of appellant’s counsel in the trial court was, to say the least, remiss and not to be condoned. In fact, in another case against this appellant (our Cause No. 57,-990), which was tried one month later, appellant’s attorney’s tardiness caused the judge to find him in contempt and fine him $100.00. Despite counsel’s behavior, however, we hold that, in the present case, the trial judge fell into error when he ordered the voir dire examination of the jury panel to proceed and allowed it to be conducted over appellant’s objection.

Both Art. 1, Sec. 10, of the Texas Constitution and Art. 1.05, Vernon’s Ann.C. C.P., provide that an accused person shall have the right of being heard by himself or counsel or both. This right, which is guaranteed by the Constitution and statutory law, carries with it the right to have counsel interrogate the members of the jury panel “to the end that he may form his own conclusion, after his personal contact with the juror, as to whether in counsel’s judgment he would be acceptable to him or whether, on the other hand, he should exercise a peremptory challenge to keep him off the jury.” De La Rosa v. State, 414 S.W.2d 668, 671 (Tex.Cr.App.1967). Numerous decisions by this Court have discussed the importance of the right to have counsel participate in the voir dire examination of the jury panel. Some of the more recent examples are Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974); Burkett v. State, 516 S.W.2d 147 (Tex.Cr.App.1974); Barrett v. State, 516 S.W.2d 181 (Tex.Cr.App.1974); and Abron v. State, 523 S.W.2d 405 (Tex.Cr.App.1975). Consequently, it may be seen that the voir dire examination of a jury panel is a critical stage of a criminal prosecution at which the right to counsel attaches.

In the instant case, there is nothing in the record before us to show that appellant knowingly and intelligently waived his right to be represented by counsel at the voir dire examination of the jury panel. On the contrary, the court’s docket sheet shows that appellant protested to proceeding in the absence of his attorney. Consequently, conducting the voir dire examination of the jury panel in the absence of appellant’s counsel was error, and the judgment must be reversed and the cause remanded. See Baker v. State, 519 S.W.2d 648 (Tex.Cr.App.1975); Hooper v. State, 557 S.W.2d 122 (Tex.Cr.App.1977); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).

The judgment is reversed, and the cause is remanded.


author: PHILLIPS, Judge.

text:
    Fidel Lozano HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 52802.
    Court of Criminal Appeals of Texas, En Banc.
    April 12, 1978.
    Sam C. Bashara, San Antonio, for appellant.
    Ted Butler, Dist. Atty., Gordon V. Armstrong, Lawrence J. Souza and Susan D. Reed, Asst. Dist. Attys., San Antonio, for the State.
   OPINION ON APPELLANT’S SECOND MOTION FOR REHEARING

PHILLIPS, Judge.

In a per curiam opinion dated April 27, 1977, we affirmed the judgment of the trial court. We granted appellant’s motion for leave to file motion for rehearing and in an opinion dated December 7, 1977, we reaffirmed our original holding. Our previous opinions are withdrawn and the following substituted in lieu thereof.

This is an appeal from a conviction for the offense of delivery of heroin. Punishment was enhanced pursuant to V.T.C.A., Penal Code, Sec. 12.42(d), and assessed at life.

The record reflects that on February 22, 1975, the appellant sold and delivered to Louis Ramon Martinez, an undercover officer of the San Antonio Police Department, a half gram of heroin. In light of our disposition herein, a further recitation of the facts is not necessary.

In his fourth and fifth grounds of error, appellant contends that the trial court erred in failing to excuse venireman Jean Abel and in failing to grant him an additional peremptory challenge. Appellant cites and primarily relies upon Wolfe v. State, 147 Tex.Cr.R. 62, 178 S.W.2d 274. After careful reflection, we find the decision in Wolfe well reasoned and reaffirm our holding therein.

The record reflects that appellant was forced to use one of his peremptory challenges on venireman Jean Abel after his challenge for cause was overruled. After exhausting all of his peremptory challenges, appellant filed a motion requesting an additional peremptory challenge which motion was denied. Appellant notified the court that had he been granted an additional challenge, he would have struck venireman Gary Carroll as being an unacceptable jur- or. These facts place appellant squarely within the rule laid down in Wolfe v. State, supra, at Page 281:

“ . . .in the trial of a criminal case where an accused has been wrongfully deprived of a peremptory challenge by being forced to use such upon a juror who was shown to be subject to a challenge for cause, and such accused has exhausted his peremptory challenges, and a further juror be presented whom he states to be objectionable to him, then it will not be necessary for accused to show in what manner such further juror was objectionable to him, nor to show that such juror was an unfair or partial juror. In further words, we think the accused should only be required to exercise a peremptory challenge on the objectionable juror and not a challenge for cause, nor show grounds for a challenge for cause, nor to show why such juror was objectionable to him.”

After Wolfe, this Court unfortunately used the word “objectionable” with two different meanings: an “objectionable” juror meaning one challengeable for cause, Burns v. State, 556 S.W.2d 270; Stephenson v. State, 494 S.W.2d 900, and “objectionable” meaning unacceptable by reason of politics, religion, environment, association, or simple appearance; in other words, an arbitrary dislike for a particular juror. Wolfe v. State, supra, and cases cited therein.

In the instant case, venireman Carroll was “objectionable” from the standpoint that appellant simply did not want him on the jury. Carroll was not subject to some legal objection which would excuse him; nevertheless, appellant desired to challenge this venireman peremptorily but was denied this opportunity by having been forced to use a peremptory challenge on venireman Abel. Therefore, if it can be shown that venireman Abel was challengeable for cause and that the overruling of such challenge deprived appellant of a peremptory challenge he would have used to strike venireman Carroll, this case must be reversed. Wolfe v. State, supra; Salazar v. State, 149 Tex.Cr.App. 260, 193 S.W.2d 211; Bayless v. State, 166 Tex.Cr.R. 479, 316 S.W.2d 743; Sifford v. State, Tex.Cr.App., 505 S.W.2d 866.

The relevant portion of venireman Abel’s testimony is as follows:

“Q You have heard us talk to all the other jurors, is there anything that would prevent you from serving as a juror?
“A I do feel prejudiced, already, because of the man’s past record.
‘MR. BASH ARA: Excuse me, Your Honor. I must make the objection based upon the answer.
“THE COURT: All right. It is overruled at this point.
* * * * * *
Q All right, ma’am. You, at this point, do not have any type of fixed conclusion in your mind as to whether he is innocent or whether he is guilty?
‘A Well, like I said, I do have a preconceived idea because of his past record. I do feel it is not in his favor.
‘Q I believe you were the first juror that raised your hand in response to any question about past record and I believe you said or you thought that the past record was some evidence of guilt of the charge in this particular case?
‘A Yes.
‘Q That is the opinion that you still have at this point, as you sit there?
‘A It is not very fair of me but I do feel that way.
‘Q And it would take at least some evidence to change that opinion?
‘A Yes.
“MR. BASHARA: Again, Your Honor, I challenge for cause.
“THE COURT: It is denied.
‘Q You, at the present time, have a preconceived notion as to the guilt or innocence of the defendant; is that correct, based upon what you have heard?
‘A That was my first thought when I heard, you know, about his past associations. That made me feel like he must be a little guilty.
‘Q And that is the way you feel at this time?
‘A Yes, but—
Q Thank you. And therefore, based upon what you have heard, it would be fair to say you have at least some bias or prejudice against the defendant in this case?
‘A Yes, sir.
‘Q Mrs. Abel, and I hate to belabor the point and I hate to even appear to be badgering you because I know you have tried to be honest. I know you understand what is at stake here and it is my obligation to inquire. You have told us that you felt the prior record I mentioned would be some evidence of guilt?
‘A Yes. I do feel that way.
‘Q And I have told you when I gave my opening remarks that the Judge will instruct you, after Mr. Hernandez takes the witness stand, that you cannot consider his past record as evidence of guilt. That you may consider it for one purpose and one purpose alone and that is on whether or not he is believable, whether or not he is credible if, in fact, it helps you about him being credible. And the Judge will frame the instruction much like that. He won’t tell you it even bears on credibility but he says the only reason you can consider it is on credibility. That is what he will tell you in his instructions. But, in spite of that type of instruction you would still believe his past record would be some evidence of -guilt in this particular case; would that be a fair statement?
‘A Well, I would try to forget what I had heard. I don’t know whether I could or not but I would try to eliminate that from my mind.
‘Q But could you set that aside or would you feel, as you do now, that it is some evidence of guilt?
‘A I don’t know. I feel like it would be some evidence of guilt.
“Q . Do you believe a police officer, any police officer, just because he is a police officer would not perjure himself from the witness stand?
“A No, I believe—
“Q He would not?
“A Everyone is fallible at some time or another.
“Q I am not talking about making a mistake, I am talking about telling a knowing willing falsehood from the witness stand.
“A I don’t think a police officer would tell a falsehood from the witness stand.
“Q Under any circumstances?
“A No, I don’t.”

At the end of this examination, Abel did say that she could be fair to the appellant.

Appellant bases his contention on the fact that venireman Abel’s testimony shows a violation of Art. 35.16(a)(8), V.A.C.C.P. We agree. That section provides:

“(a) A challenge for cause is an objection made to a particular juror, alleging some fact which renders him incapable or unfit to serve on the jury. A challenge for cause may be made by either the state or the defense for any one of the following reasons:
(8) That he has a bias or prejudice in favor of or against the defendant;”

Appellant also contends that venireman Abel’s inability to believe that a police officer would tell a wilful falsehood disqualified her under Art. 35.16(a)(8). Cf. Hernandez v. State, Tex.Cr.App., 508 S.W.2d 853. As noted in 35 Tex.Jur.2d, Jury, Sec. 211:

“In a criminal case, hostility toward one witness or friendship for another witness may be ground for inferring that the juror ‘has a bias or prejudice in favor of or against the defendant’. But whether bias should be, inferred in a particular case depends on the juror’s demeanor and answers on the voir dire, and necessarily rests to a large extent in the discretion of the trial court.”

In the instant case, there is no doubt that venireman Abel’s attitude toward police officers constituted a bias against the appellant. Her voir dire examination revealed she believed a police officer would always tell the truth. When considering the fact that three of the four State’s witnesses were police officers, these responses become especially important. A defendant is entitled to a juror who will impartially judge the credibility of the witnesses. Shaver v. State, 162 Tex.Cr.R. 15, 280 S.W.2d 740. Venireman Abel’s testimony revealed that her predisposition to believe police officers would have prevented her from impartially judging the credibility of those witnesses. Such responses effectively demonstrated bias against the appellant. Under the circumstances, we hold that appellant’s challenge for cause was improperly overruled. Gonzalez v. State, 169 Tex.Cr.R. 49, 331 S.W.2d 748.

The appellant’s second motion for rehearing is granted; the judgment is reversed and the cause is remanded.

VOLLERS, J., not participating.


author: KLINGEMAN, Justice.

text:
    CALVIN V. KOLTERMANN, INC., et al., Appellants, v. UNDERREAM PILING CO. and D. E. W., Inc., Appellees. D. E. W., INC., Appellant, v. CALVIN V. KOLTERMANN, INC., et al., Appellees.
    Nos. 15889 and 15920.
    Court of Civil Appeals of Texas, San Antonio.
    March 1, 1977.
    Rehearing Denied April 12, 1978.

      Peter Torres, Jr., James F. Gardner, Wolff & Wolff, Phillip Yeager, San Antonio, for appellants.
    Wolff & Wolff, Phillip Yeager, Peter Torres, Jr., James F. Gardner, San Antonio, for appellees.
   KLINGEMAN, Justice.

This is a consolidated cause of three suits arising out of a contract between Calvin V. Koltermann, Inc. as general contractor, and San Antonio Independent School District, to construct an administrative center. Kolter-mann subcontracted with Underream Piling Co. for excavation and foundation work, with Redondo Manufacturing Co., Inc. for pre-cast concrete, and with D. E. W., Inc. for plumbing and heating work. After the election of new members of the School Board, the Board of trustees of San Antonio Independent School District voted to cancel the Koltermann contract.

On June 17, 1976, Redondo Manufacturing Co., Inc. [herein called “Redondo”], not a party to this appeal, filed a suit against Calvin V. Koltermann, Inc. [herein called “Koltermann”], alleging that the San Antonio Independent School District [herein called “SAISD”] had entered into a contract with Koltermann on March 29, 1976 in which Koltermann agreed to construct the administration building involved. Redondo asserted that its bid for pre-cast concrete was accepted by Koltermann and that Re-dondo was authorized to proceed pursuant to the agreement. Similarly, D. E. W., Inc. [herein called “D. E. W.”] and Underream Piling Co. [herein called “Underream”] filed suits against Koltermann on their subcontracts. All the causes were consolidated and trial was before a jury.

The jury, in answer to special issues submitted, found: (1) that the School Board of Trustees authorized Grace Durr, President, to sign the contract of March 29, 1976 between SAISD and Koltermann; (2) that on such date, SAISD had sufficient unencumbered funds to pay the obligation of the contract of March 29, 1976 between Kolter-mann and SAISD; (3) that Redondo, Un-derreafn, and D. E. W., as subcontractors, and Koltermann, on or about March .30, 1976, agreed upon all of the essential and important terms of their respective agreements with Koltermann; (4) that the actions of SAISD, causing Koltermann to breach his contract with Redondo, Under-ream, and D. E. W., were with justifiable cause and were done to serve some legitimate interest of SAISD; (5) that Redondo, Uriderream, and D. E. W., subcontractors, and Koltermann, general contractor, did not understand and agree that each would be relieved of its respective obligations to the other if SAISD cancelled or terminated its contract with Koltermann; (6) that the reasonable and necessary costs incurred by Un-derream for remaining ready and able to perform its subcontract with Koltermann between the time Underream received notice to stop work and the time it received notice that the contract had been terminated, is $16,048.00; (7) that the reasonable and necessary costs which would have been incurred in such contracts for completion of the respective agreements with Koltermann are as follows: Redondo — $160,000.00; Un-derream- — $16,828.00; D. E. W. — $285,-451.00.

Koltermann and SAISD moved for judgment n.o.v.; SAISD moved for a take nothing judgment; and D. E. W. and Under-ream moved for judgment under the verdict. Judgment was entered by the trial court as follows: (1) Koltermann’s and SAISD’s motions for judgment n.o.v. are overruled; (2) Redondo take nothing from Koltermann and SAISD; (3) Underream receive $16,048.00 against Kolterman; (4) Koltermann receive as an indemnity from SAISD, $16,048.00; (5) D. E. W. receive $4,970.00 from Koltermann, but takes nothing from SAISD; (6) Koltermann receive an indemnity from SAISD of $4,970.00.

SAISD does not here complain of the indemnity awards to Koltermann.

KOLTERMANN’S AND SAISD’S APPEAL

All of Koltermann’s and SAISD’s points of error are no evidence or legal insufficiency points of error. Koltermann’s and SAISD’s first point of error complains that the trial court erred in overruling their motion for judgment n.o.v. because Under-ream and D. E. W. failed to exhaust their administrative remedies as required by § 11.13 of the Tex.Education Code (1972).

§ 11.13 provides in part as follows: (1) Persons having any matter of dispute among them arising under the school laws of Texas or any persons aggrieved by the school laws of Texas or decisions of any board of trustees or board of education may appeal in writing to the Commissioner of Education, who, after due notice to the parties interested, shall hold a hearing and make and render a decision without cost to the parties involved, but nothing contained in this section shall deprive any party of any legal remedy.

Appellees, Underream and D. E. W., assert that appellants’ first point of error should be overruled because (1) the failure of appellants to file a motion for new trial precludes their raising on appeal the purported failure of appellees to exhaust their administrative remedies; (2) the matter of failure to exhaust administrative remedies is moot because appellees were not awarded a judgment against SAISD; (3) appellees did not fail to exhaust the administrative. remedies because there were no administrative remedies to exhaust in such a case.

We have concluded that appellants’ point of error No. 1 is without merit and should be overruled. Appellees are subcontractors whose contract was with the general contractor and not with SAISD. Their obligations, rights, and duties arose out of their subcontracts. Appellees here were not aggrieved by the school laws of Texas or by any actions or decisions of any board of trustees, and the administrative remedies of the Texas Education Code are inapplicable. Appellees here contracted only with Koltermann and not SAISD, and the validity of these contracts was an issue, making the central question legal and not factual.

It is a well established rule that, in all matters pertaining to the administration of school law, involving questions of fact as distinguishable from pure questions of law, resort must be first had to school authorities and the method of appeal there provided for exhausted before the courts will entertain jurisdiction of a complaint with regard to such matters. State ex rel. Nevills v. Sanderson, 88 S.W.2d 1069 (Tex.Civ.App.—Waco 1935, no writ).

However, we do not have such a situation here. The subcontractors here involved contracted with Koltermann alone and not SAISD, and we have here involved the validity of the contracts between the general contractor and the subcontractors. The central question is a legal one, not factual.

See Board of Trustees of Crystal City Ind. School Dist. v. Briggs, 486 S.W.2d 829 (Tex.Civ.App.-Beaumont 1972), where the court said:

Whether or not District was entitled to reassign Briggs under the terms of the contract was one of law urged by District in defense of Briggs’ claim for money. The Commissioner of Education does not exercise judicial power to determine the legality of contracts or the legal rights of parties thereto. Such are matters for the courts to determine under our system of a division of powers of government. Texas Constitution, Art. 2, § 1, Vernon’s Ann.St.; Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699, 711 (1959); Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686, 691 (Tex.1964).

Koltermann’s and SAISD’s second point of error is that the trial court erred in overruling their motion for judgment n.o.v. because there was no evidence to support the jury’s answer to Special Issue No. 1; that the undisputed evidence shows that the School Board did not authorize Grace Durr, as President, to sign the contract of March 29, 1976; and that such contract is void. We disagree. Under the record, the jury could properly conclude there was such authorization from a number of things in the record, including (a) the minutes of the meeting of the Board of Trustees accepting the low bid of Koltermann on the construction of the administration building; (b) the signature of the president on the contract, with attestation by secretary; (c) testimony that Koltermann performed no work on such building until he had received approval of the architect for the SAISD; (d) an exhibit which is a written authorization from SAISD to Koltermann to proceed; (e) testimony by some of the trustees evidencing recognition of the contract but asserting that Koltermann breached the contract; (f) testimony by some of the trustees, who voted to give notice to cease work, that they ran for School Board on a platform to repeal the action of the School Board pertaining to the construction of the administration building; (g) testimony by the architect for the School Board that he was authorized by the Board to draw the working drawings for the administration building, which he did, and that after the acceptance of the low bid he told Koltermann to proceed; (h) testimony that, thereafter, Koltermann performed work under such contract and certain payments were made under the contract.

Appellees further contend that any irregularities in the execution of the SAISD contract are immaterial to this appeal since the appellees are subcontractors who are suing on their contract with Koltermann and not on Koltermann’s contract with the School Board. Such contention is well taken.

By their third point of error, Kol-termann and SAISD assert that the trial court erred in overruling their motion for judgment n.o.v., in that the evidence shows that appellees and Koltermann did not agree upon all of the essential and important terms of their respective agreements and, therefore, there was no evidence to support the jury’s answer to Special Issue No. 3, and as a matter of law there was no contract between appellees and Kolter-mann. In support of such contention they rely on cases holding that, to constitute a contract, the minds of parties must meet with respect to all of the subject matter of the contract and as to all of its essential terms. Smulcer v. Rogers, 256 S.W.2d 120 (Tex.Civ.App.-Fort Worth 1953, writ ref’d n.r.e.); South Texas Water Co. v. Bieri, 247 S.W.2d 268 (Tex.Civ.App.-Galveston 1952, writ ref’d n.r.e.); H. B. Zachry Co. v. Maerz, 223 S.W.2d 552 (Tex.Civ.App.-San Antonio 1949, no writ); 13 Tex.Jur.2d, Contracts § 14 (1960). We have no argument with these cases or authorities, but they are not here applicable.

The undisputed evidence shows that Kol-termann and appellees, Underream and D. E. W., had an oral contract which was to be later reduced to writing; that it is customary for the subcontractor to begin work on the project before a written contract is signed; that here, before any such written contract was prepared, some work had been actually performed pursuant to such oral contract. There is evidence of acts by each party which indicate assent to the oral agreement. It is clear that Koltermann initiated work on the job which included work by these subcontractors and that some payments were made by SAISD to Kolter-mann. A meeting of the minds can be implied from and evidenced by conduct and course of dealing of the involved parties.

Appellants’ point of error No. 3 is without merit and overruled.

Koltermann’s and SAISD’s point of error No. 4 asserts that the trial court erred in overruling their motion for judgment n.o.v., in that the evidence showed that appellees and Koltermann would be relieved of their respective obligations if SAISD cancelled its contract with Kolter-mann and therefore there was no evidence to support the jury’s answer to Special Issue No. 5.

The evidence shows that the subcontractors and Koltermann had contracts which were separate and independent from that of Koltermann’s with SAISD. There is nothing in the contracts, documents, or evidence which shows or indicates that the cancellation of SAISD’s contract with Kol-termann would terminate the subcontractors’ contracts with Koltermann. The evidence does show that the oral contracts were later to be reduced to writing and there was introduced into evidence a standard A.I.A. form of subcontract which was to be used for this purpose. Such form does not contain a provision to the effect that if the contract between the owner and the general contractor is terminated, the contracts between the general contractor and subcontractors would be terminated.

A court cannot make a contract for the parties. We can declare that an implied covenant exists only where there is a satisfactory basis in the express contract of the parties which makes it necessary to imply certain duties and obligations in order to effect the purposes of the parties in the contract which they have made. Before a covenant will be implied, it must appear from the express terms of the contract that it was so clearly within the contemplation of the parties that they deemed it unnecessary to express it, or that it is necessary to imply such covenant in order to give effect to and to effectuate the purpose of the contract as a whole. Freeport Sulphur Co. v. American Sulphur Royalty Co. of Texas, 117 Tex. 439, 6 S.W.2d 1039 (1928); Emmord’s, Inc. v. Obermiller, 526 S.W.2d 562 (Tex.Civ.App.-Corpus Christi 1975, writ ref’d n.r.e.).

Where the obligation to perform is absolute, impossibility of performance occurring after the contract was made is not an excuse for nonperformance if the impossibility might have reasonably been anticipated and guarded against in the contract. This is true even though an impossibility may subsequently have occurred by virtue of an act of God or some other circumstance over which the parties had no control. Impossibility of performance is also not an excuse if it is subsequently occasioned by the act or default of the promisor or by the acts of a third party. 13 Tex.Jur.2d, Contracts §§ 318, 319 at 578 (1962); Foster v. Atlantic Refining Co., 329 F.2d 485 (5th Cir. 1964), at 862.

Appellants’ point of error No. 4 is overruled.

By their last point of error, Koltermann and SAISD complain that the trial court erred in overruling their motion to enter judgment in that Special Issue No. 4 supported the entry of a take nothing judgment. A take nothing judgment was entered as against SAISD. Koltermann and SAISD, on this appeal, assert that the same ruling ought to apply to Koltermann, and rely heavily on Cox v. Process Engineering, Inc., 472 S.W.2d 585 (Tex.Civ.App. — Amarillo 1971, no writ). Cox was a suit by a subcontractor against a general contractor in which the owner evicted the subcontractor from the job. Such suit was premised on a breach of an implied contract to protect the subcontractor from interference with the progress of his work and to provide and maintain access to the job site. It was alleged that the eviction of the subcontractor by the owner constituted a breach of this implied obligation by the prime contractor, for which he is liable. The subcontract had no provision that the subcontractor would be furnished a job site by the general contractor. The court held for the general contractor, and stated:

A cause of action must both be alleged and proved in order to obtain relief from the party sought to be held liable. A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619 (1939). A cause of action cannot exist unless one party fails to perform an obligation owed to another. The suit by plaintiff against Process is an ex contractu action based on the alleged nonperformance of an implied contractual duty. In this case the evidence shows as a matter of law that Process did not breach any duty, express or implied, owed to Cox. Failure to perform an act neither expressly nor impliedly contract to be done or performed does not constitute, in law, a breach of contract.

In the case before us appellees had no dealing with SAISD and SAISD did not evict or order appellees off the job. Appel-lees’ contracts were with Koltermann alone. In Cox, the general contractor never told the subcontractor to stop his work, and did not evict the subcontractor, while in our case, Koltermann did tell the subcontractors to stop their work and his suit is premised on such breach of contract. These cases are distinguishable on their facts, and under the record herein, we decline to follow Cox.

Without reiterating all of the authorities hereinbefore discussed, we feel that they are here applicable, and this case falls within the rule in Ellwood v. Nutex Oil Co., 148 S.W .2d 862 (Tex.Civ.App.-El Paso 1941, writ ref’d n.r.e.), as follows:

We think this case falls within the general rules applicable to contracts, that one who unconditionally obligates himself to do a thing possible of performance, must be held to perform it (Kingsville Cotton Oil Co. v. Dallas Waste Mills, Tex.Civ.App., 210 S.W. 832; Masterson v. Amarillo Oil Co., Tex.Civ.App., 253 S.W. 908, writ refused); and though performance, subsequent to the contract, may become difficult or even impossible, does not relieve the promisor, and particularly where he might have foreseen the difficulty and impossibility. Levy Plumbing Co. v. Standard Sanitary Mfg. Co., Tex.Civ.App., 68 S.W .2d 273 writ refused; Embry v. Lewis, Tex.Civ.App., 19 S.W.2d 87.

Under the record here, the jury’s answer to Special Issue No. 4 does not release Koltermann of his obligation to the subcontractors.

All of Koltermann’s and SAISD’s points of error have been considered and all are overruled. Koltermann and SAISD do not here complain of the amount of the damage award.

D. E. W.’s APPEAL

All of D. E. W.’s points of error pertain to the damages awarded. By such points of error it asserts there is no evidence and insufficient evidence to support the jury’s answer to Special Issue No. 7C, and that the jury’s answer thereto is against the great weight and preponderance of the evidence.

The testimony on which D. E. W. relies is that of an interested witness, Mr. Wurz-bach, who is President and sole shareholder of D. E. W. He testified that he- bid $290,-451.00 to install the heating, air-conditioning, plumbing and ventilation in the building involved; that he was given notice to proceed on March 30,1976; that he started work on that date; that he was told to stand by on April 6, and did no work after that time; that up to that time the work that D. E. W. did consisted of negotiations with numerous suppliers and manufacturers of equipment to be installed, preparation of quantity take-offs, and familiarizing itself with the job; and that a reasonable charge for the work done is $5,000.00. He further testified that the reasonable cost of completion of D. E. W.’s contract was $224,073.00. He was cross examined extensively as to how he arrived at such figure and his testimony is somewhat vague and confusing. Such cross examination indicated that he was not sure how much profit he was to make on the contract, or exactly how he arrived at the figure of $224,073.00 as the reasonable cost of completion. In answer to some of the questions as to individual items of such cost, he stated that the figures were ones that he pulled out of the air. He testified that his anticipated profit was $61,378.00, which is approximately the difference between the bid price and his completion price. He stated that such profit might be considerably more or considerably less.

The only other testimony pertaining to damages was by Koltermann, who testified that D. E. W. had men working on the job on either March 30th or 31st, and that D. E. W. did not submit shop drawings to him.

It is sometimes said that the courts have always recognized the general rule that the measure of damages for breach of contract is just compensation for the damages actually sustained by the plaintiff as the result of defendant’s action. In A. B. C. Truck Rental & Leasing Co. v. Pletz, 540 S.W.2d 532 (Tex.Civ.App.-San Antonio 1976, writ ref’d n.r.e.), this Court said:

It is fundamental that damages for breach of contract are to compensate one party to a contract for the breach by the other by awarding the value of the expected performance. 17 Tex.Jur.2d, Damages, § 51 (1960). This value is usually determined in one of two ways: (1) by awarding the difference in the market value of the property as completed and the value if completed in accordance with the plans and specifications; or (2) by awarding the cost of correction or completion.

The general rule is that the testimony of an interested witness does no more than raise a fact issue to be determined by the jury. While there are exceptions to the rule, it seems settled that when testimony comes from an interested party and is of such a nature that cannot be readily contradicted if untrue, an issue relating to the credibility of the witness is presented. James T. Taylor & Son, Inc. v. Arlington Ind. School Dist., 160 Tex. 617, 335 S.W.2d 371 (1960).

While we will not here attempt to go into the thought process by which the jury arrived at its figure of $285,451.00, it might logically be assumed that the jury accepted Wurzbach’s testimony that a reasonable charge for the work done by D. E. W. was $5,000.00, and subtracted this figure from the bid figure of $290,451.00, in arriving at its cost of completion answer; and that the jury refused to believe the witness’ testimony that the reasonable cost of completion was $224,073.00.

It is the jury’s province to determine the credibility of the witness and the weight to be given his testimony. In exercising such power, the jury may consider the demeanor of the witness and determine his credibility under the facts and circumstances of the particular case. It may accept part of a witness’ testimony and reject the remainder, if the facts of the case justify such action. In short, generally, the jury is free to believe or reject all or any part of the testimony of an interested witness or a party to the suit. The jury apparently disregarded much of the testimony of the witness here involved and concluded from the testimony as a whole that the reasonable cost of completion was $285,-451.00. Since the weight to be given the evidence and the witness’ credibility is ordinarily for the trier of the facts, the findings by the jury are binding on the appellate court unless it finds that there is no evidence to support such finding or that such finding is so against the great weight and preponderance of the evidence as to the manifestly unjust. We do not so find. All of D. E. W.’s points of error are overruled.

Finding no reversible error in the record, we affirm the judgment of the trial court.

      . In the absence of an express contract making the owner liable, the compensation of persons who perform labor for or furnish material to the builder are generally to be paid by such builder, and not by the owner, although the work is done under the direction of and in accordance with the plans furnished by the owner’s engineer; and subcontractors and ma-terialmen must resort for payment to the builder or contractor, as in the absence of an express contract there is not privity between a subcontractor employed by the general contractor and the owner, and the liability of the owner is only to the general building contractor, who is liable to subcontractor. Carruth v. Valley Ready-Mix Concrete Co., 221 S.W.2d 584 (Tex.Civ.App.-Eastland 1949, writ ref’d).

      . The jury found that SAISD authorized Grace Durr, as President of the Board of Trustees, to sign the contract between SAISD and Kolter-mann.

      . The jury found that Koltermann, as general contractor, and Redondo, Underream, and D. E. W., as subcontractors, agreed upon all of the essential and important terms of their respective contracts.

      . In answer to Special Issue No. 5, the jury found that the plaintiffs and Koltermann did not understand and agree that each would be relieved of its respective obligations to the other if SAISD cancelled or terminated the contract with Koltermann.

      . As a general rule, the fact that an act is impossible to perform at the time the contract is made is not a valid excuse for nonperformance of the act, unless the contract so provided. 13 Tex.Jur.2d, Contracts § 319.

      . In Special Issue No. 4 the jury found that the action of SAISD causing Koltermann to breach his contract with the subcontractors, was with justifiable cause and was done to serve some legitimate interest of SAISD.

      . In answer to Special Issue No. 7C, the jury found that the reasonable and necessary cost which would have been incurred by D. E. W. for completion of its agreement with Kolter-mann, was $285,451.00.